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Banking, Business and Contracts No. 09-01-386-CV, 4/10/2003. Click here for the full text of this decision FACTS: This appeal by Woody Wrigley, in a proceeding to enforce a judgment against First National Security Corporation with funds held by Community Bank and Trust in the name of the judgment debtor, raises the following issue: “Final, Valid, and Enforceable Texas Judgments Are Held By Me Based Upon Sustained Utah Judgments and Should be Upheld; the Texas Trial Court Erred in Eventually Not Recognizing Those Judgments and Subsequent Garnishments Based Thereon.” HOLDING: Affirmed. Wrigley’s Texas suit consisted of the filing of a foreign judgment and an application for a writ of garnishment, a subsequent injunction, the filing of a foreign judgment in the same cause after re-trial in Utah, and a request for an order to have the funds turned over to him. The trial court correctly ruled that the April 5, 2000, judgment in Cause No. 00-840-0297 had been set aside. However, in an amended pleading, Wrigley filed the April 4, 2001, Utah judgment in Cause No. 00-840-0297. The trial court ruled only that Wrigley’s application for garnishment could not support a judgment in garnishment because the former Utah judgment had been set aside by the Utah court. Although aware of it, the trial court never addressed the issue of whether the April 4, 2001, Utah judgment is entitled to full faith and credit. A writ of garnishment is available if a plaintiff has a valid, subsisting judgment. Texas Civil Practice and Remedies Code �63.001. Unless a supersedeas bond is filed, the judgment is deemed final and subsisting for the purposes of garnishment from and after the date it is signed. Texas Ruke of Civil Procedure 657. If the court finds that the garnishee is indebted to the defendant in any amount, or was so indebted when the writ of garnishment was served, the court shall render judgment for the plaintiff. Texas Rule of Civil Procedure 668. The funds captured by the writ of garnishment are those held by the garnishee in the account of the judgment debtor on the date the writ is served, and any additional funds deposited through the date the garnishee is required to answer. Newsome v. Charter Bank Colonial, 940 S.W.2d 157 (Tex. App. – Houston [14th Dist.] 1996, writ denied). It does not necessarily follow that the plaintiff’s right to recover those funds from the garnishee is fixed by whatever judgment the plaintiff possesses on that date. The issuance and service of the writ of garnishment fixes the trial court’s jurisdiction to determine whether the garnishee holds funds belonging to the judgment debtor, and necessarily that jurisdiction extends to a determination of title and ownership of the funds, regardless of how that ownership is placed in controversy. Thompson v. Fulton Bag & Cotton Mills,155 Tex. 365 (Tex. 1956). The garnishee may deposit the funds into the court, bring in all other claimants through interpleader, and the trial court may then adjudicate the conflicting claims of the parties. Suing out a writ of garnishment prior to the finality of the underlying judgment may affect the priority of competing liens. Northshore Bank v. Commercial Credit Corp., 668 S.W.2d 787 (Tex. App. – Houston [14th Dist.] 1984, writ ref’d n.r.e.). The competing claimants here are a judgment creditor and a judgment debtor, not two judgment creditors, so lien priority is not an issue. The trial court based its ruling upon the precedent set by Tom Benson Chevrolet Co. v. Beall, 567 S.W.2d 857 (Tex. Civ. App. – San Antonio 1978, writ ref’d, n.r.e.). That case stands for the general proposition that a garnishment judgment, being merely a mode of enforcing the execution of a judgment, must be supported by a valid judgment in the underlying suit. Another case stating this proposition is Enis v. Smith, 883 S.W.2d 662 (Tex. 1994), which held that mandamus would lie to set aside a turnover order after the underlying out-of-state judgment was set aside by the issuing court for lack of personal jurisdiction over the defendant. In Enisand Owen Elec. Supply, Inc. v. Brite Day Constr. Inc., 821 S.W.2d 283 (Tex. App. – Houston [1st Dist.] 1991, writ denied), the ultimate outcome of the underlying litigation was favorable to the judgment debtor in the enforcement proceeding. In Tom Benson Chevrolet, the void judgment was eventually succeeded by a valid judgment for the garnishor in the enforcement proceeding. The court of appeals did not consider the effect of the subsequent judgment because the trial court had granted the garnishment judgment on the first void judgment. The court of appeals could not consider the effect of the second judgment for the first time on appeal. In contrast, Wrigley expressly asked the trial court to enforce the second judgment. Tom Benson Chevroletis not authority for the proposition that a garnishment judgment cannot be based upon a new judgment entered after the granting of a motion for new trial. A judgment creditor may enforce a domestic judgment even pending appeal unless a supersedeas bond has been filed. Anderson v. Lykes, 761 S.W.2d 831 (Tex. App. – Dallas 1988, orig. proceeding). Furthermore, garnishment is not the sole means through which the judgment creditor may seek the court’s assistance in reaching the debtor’s property. The court may order the judgment debtor to do the following: 1. turn over nonexempt property that is in the debtor’s possession or is subject to the debtor’s control, together with all documents or records related to the property, to a designated sheriff or constable for execution; 2. otherwise apply the property to the satisfaction of the judgment; or 3. appoint a receiver. Texas Civil Practice and Remedies Code �31.002. In this case, Wrigley asked the trial court to order the release of the funds to him to satisfy his April 4, 2001, judgment. That motion is essentially an application for a turnover order. The rules and statutes relating to the collection of judgments are strictly construed against enforcement, however, and Wrigley did not satisfy the requirements for either a turnover order or a writ of garnishment. Therefore, the trial court did not abuse its discretion by failing to order the funds be released to Wrigley. OPINION: McKeithen, C.J.; McKeithen, C.J., Burgess and Gaultney, JJ. DISSENT: Burgess, J. “The majority acknowledged the trial court based its ruling on Tom Benson Chevrolet Co. v. Beall, 567 S.W.2d 857 (Tex. Civ. App. – San Antonio 1978, writ ref’d n.r.e.) and correctly concludes that case: ‘. . . stands for the general proposition that a garnishment judgment, being merely a mode of enforcing the execution of a judgment, must be supported by a valid judgment in the underlying suit.’ They also noted: ‘T om Benson Chevrolet is not authority for the proposition that a garnishment judgment cannot be based upon a new judgment after the granting of a motion for new trial.’ “The majority makes the case for Wrigley and then, without more, simply concludes: “. . . and Wrigley did not satisfy the requirements for either a turnover order or a writ of garnishment.” Under the analysis and facts utilized by the majority, at the time the trial court vacated the garnishments and dismissed the suit (May 17, 2001), Wrigley had provided the trial court a properly domesticated judgment (the April 4, 2001 Utah judgment). “The trial court simply misinterpreted the law and applied it incorrectly. The majority acknowledges this, yet, incredibly, still affirms. I dissent.”

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