McKinnon v. Gurley

Dallas Court of Appeals, No. 05-16-00246-CV (October 25, 2018)

Justices Lang, Fillmore, and Schenck (Opinion, linked here)

Gurley won a judgment against Cardwell for $318,478 in 2009. While the lawsuit was pending, however, Cardwell and his financial planner, McKinnon, orchestrated a series of allegedly fraudulent real estate transactions with regard to Cardwell’s ranch property in an attempt to shelter that property from execution and sale to satisfy the judgment. In 2013, Gurley learned of these transactions and the fact that Cardwell still had grazing rights on the property. Gurley claimed Cardwell was still in possession of the property, filed a fraudulent transfer claim in the original trial court under the original cause number, and obtained another judgment in 2015 reiterating the earlier award and ordering that execution levy on the property.

Apparently recognizing that a fraudulent transfer claim should not have been brought under the long dormant original cause number, Gurley filed a motion to sever, which was granted. The fraudulent transfer claim was given a new cause number, a final judgment was entered, and defendants appealed. But the Court of Appeals concluded the fraudulent transfer claim was not appropriately severed, and so did not result in a final judgment subject to appeal. Rather, the 2015 order should be treated as an order “incident to execution and levy” in the underlying case, and no right of appeal is provided for such orders by applicable statute or rule.