IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
MARCH 23, 2004
______________________________
DAVID RAMOS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NO. 46,215-E; HONORABLE ABE LOPEZ, JUDGE
_______________________________
Before QUINN and REAVIS, JJ. and BOYD, S.J. (1)
MEMORANDUM OPINIONPursuant to the State's motion to proceed with an adjudication of guilt on the original charge of possession of a controlled substance for numerous violations of the conditions of his community supervision, appellant pled true without a recommendation on punishment. Following a hearing on the State's motion, the trial court sentenced appellant to 20 years confinement. Pending before this Court is the State's motion to abate this appeal and remand the cause to the trial court with directions to re-certify David Ramos's right of appeal. Although no clerk's record has been filed to date, the State has provided us with certified copies of the necessary documents to dispose of its motion. We grant the motion.
Without a recommendation on punishment, appellant signed a document entitled "Defendant's Plea on Community Supervision Revocation" in which he averred he freely, knowingly, and voluntarily waived any right to appeal he may have. Pursuant to Rule 25.2(a)(2) of the Texas Rules of Appellate Procedure which requires the trial court to enter a certification of the defendant's right of appeal, the court certified that "defendant has waived the right of appeal." A pre-sentence waiver of the right to appeal without a plea agreement or a recommendation cannot be knowingly and intelligently made and is not binding on a defendant. Ex parte Thomas, 545 S.W.2d 469, 470 (Tex.Cr.App. 1977).
Relying on this Court's decision in Hargesheimer v. State, No. 07-03-0544-CR, 2004 WL 112628, at *1 (Tex.App.-Amarillo Jan. 23, 2004, no pet. h.), the State now moves that we abate the appeal and remand the cause to the trial court with directions to re-certify whether appellant has a right to appeal. See Tex. R. App. P. 2, 34.5(c)(2), and 37.1. In Hargesheimer, the State filed a motion to dismiss the appeal based on the trial court's certification that the defendant had waived the right to appeal. We denied the motion without prejudice and, based on an invalid pre-sentence waiver of the right to appeal without a plea bargain or a recommendation on punishment, we abated the appeal and remanded the cause for the trial court to re-certify the defendant's right to appeal. Based on Thomas and Hargesheimer, we agree with the State that this appeal must be abated and the cause remanded to the trial court with directions to re-certify whether appellant has the right to appeal. Should the trial court determine that appellant does have the right to appeal, it shall execute a certification indicating so and conduct a hearing after notice to the parties to determine the following:
- whether appellant desires to prosecute an appeal; and
- whether appellant is indigent and entitled to appointed counsel.
The trial court shall cause the hearing, if any, to be transcribed. If appellant desires to continue this appeal and is entitled to appointed counsel, the trial court shall enter an order appointing counsel and include counsel's name, address, state bar number, telephone number, and facsimile number.
Finally, the re-certification and order appointing counsel, if any, shall be included in a supplemental clerk's record. A transcription of the hearing, if any, must be included in a supplemental reporter's record. Both the supplemental clerk's and reporter's record must be filed with the Clerk of this Court on or before Monday, April 26, 2004. Should the trial court require more time to comply with the directions of this Court, it must request an extension prior to April 26, 2004.
Accordingly, the appeal is abated and the cause is remanded for further proceedings.
Per Curiam
Do not publish.
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
style="text-align: center">AT AMARILLO
PANEL A
JUNE 4, 2009
______________________________
REGIONS BANK, APPELLANT
V.
CENTERPOINT APARTMENTS, APPELLEE
_________________________________
FROM THE COUNTY COURT AT LAW NO. 2 OF DENTON COUNTY;
NO. GC-2007-01955; HONORABLE MARGARET BARNES, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
OPINION
Appellant, Regions Bank, filed a restricted appeal of a default judgment entered in relation to a writ of garnishment in favor of appellee, Centerpoint Apartments. The default judgment found Regions liable and awarded damages of $6,533.49, the amount of an underlying judgment in favor of Centerpoint against Stanley Elvin Hance, $501.00 for costs of court for both the underlying proceeding and the default garnishment proceeding, and post-judgment interest at a rate of 8.25 percent per year. For the reasons expressed herein, we affirm in part and reverse in part.
Background
After obtaining a judgment against Stanley Elvin Hance, Centerpoint filed an application for writ of garnishment against Regions on June 29, 2007. In its application, Centerpoint sought to recover the damages awarded to it in the underlying judgment against Hance as well as post-judgment interest on that amount until paid. The application was supported by the affidavit of Centerpoint employee Jennifer Reven. This affidavit indicates that, to the best of Reven’s knowledge, Hance does not possess sufficient property in the state to satisfy the judgment, but that Reven has reason to believe that Regions held property belonging to Hance or was indebted to Hance. Regions was properly served with the application, but did not file an answer. Centerpoint then moved for default judgment and the trial court signed the default garnishment order described above on September 4, 2007.
Regions contends that it inadvertently failed to answer the application for writ of garnishment and did not receive notice of the issuance of the writ until after the period for filing post-judgment motions. As a result, Regions filed the present restricted appeal.
Regions presents two issues by the present appeal: (1) the trial court erred in awarding damages in this case because such damages are proscribed by Texas Finance Code section 276.002, and (2) reversal is warranted because no reporter’s record was prepared for this appeal.
Standard of Review
A restricted appeal is a procedural device available to a party who did not participate, either in person or through counsel, in a hearing that resulted in a judgment against the party. Tex. R. App. P. 30. To be eligible for a restricted appeal, the party must not have timely filed a post-judgment motion, a request for findings of fact and conclusions of law, or a notice of appeal. Id. In addition, the error complained of must be apparent on the face of the record, which includes all papers on file in the appeal, including the statement of facts. Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997). As such, a review of a restricted appeal necessarily includes review of the legal and factual sufficiency of the evidence. Id. A party may file a restricted appeal by filing a notice of appeal within six months of the date the judgment is signed. Tex. R. App. P. 26.1.
In the present case, there is no dispute that Regions filed its restricted appeal within six months after the judgment was signed, was a party to the garnishment proceeding, and did not participate in the garnishment proceeding either before or after judgment was entered. Thus, the issue in the present appeal is whether the error Regions complains of is apparent on the face of the record. It is Regions’s burden to demonstrate error on the face of the record. See Norman Commc'ns, 955 S.W.2d at 270.
Issue One: The Award of Damages
By its first issue, Regions contends that the trial court erred in awarding damages to Centerpoint in the default judgment because such an award of damages is proscribed by section 276.002.
Garnishment is a statutory proceeding whereby the property, money, or credits of a debtor in the possession of another are applied to the payment of a debt. Bank One, Texas, N.A. v. Sunbelt Sav., F.S.B., 824 S.W.2d 557, 558 (Tex. 1992). Thus, garnishment necessarily involves three parties: a creditor, a debtor, and a third person who has some obligation to the debtor. Orange County v. Ware, 819 S.W.2d 472, 474 (Tex. 1991). Garnishment is a creditor's action against his debtor's debtor, the garnishee, to obtain satisfaction of what is owed the creditor. Id. Funds placed with a bank ordinarily become general deposits that create a debtor-creditor relationship between the bank and its depositor. Bank One, N.A., 824 S.W.2d at 558. A writ of garnishment is available to a judgment creditor where the creditor has a "valid, subsisting judgment and makes an affidavit stating that, within the plaintiff's knowledge, the defendant does not possess property in Texas subject to execution sufficient to satisfy the judgment." Tex. Civ. Prac. & Rem. Code Ann. § 63.001(3) (Vernon 2008). Generally, the trial court is authorized to render judgment against the garnishee for the full amount of the debtor’s debt to the creditor/garnishor when the garnishee fails to answer or appear in a garnishment proceeding. See Lamb-McAshan Co. v. Ellis, 270 S.W. 547, 549 (Tex. 1925); Norton v. B. & A. Drilling Co., 34 S.W.2d 1095, 1097 (Tex.Comm’nApp. 1931). The assessment of damages against the defaulting garnishee is premised on a presumption that the garnishee is indebted to the debtor in an amount sufficient to satisfy the claim of the garnishor. Norton, 34 S.W.2d at 1097. A defaulting garnishee must timely act to set aside the judgment to avoid this harsh result. See Kentucky Oil Corp. v. David, 285 S.W. 290, 293 (Tex. 1926).
Section 276.002, effective September 1, 2005, provides that “if a financial institution fails to timely file an answer to a writ of garnishment issued before or after a judgment is rendered in the case, a court may enter a default judgment against the financial institution solely as to the existence of liability and not as to the amount of damages.” § 276.002(a). Further, “[a] financial institution against which a default judgment is entered under Subsection (a) is not deemed to have in the financial institution’s possession or to have knowledge of sufficient debts, assets, or personal effects of the debtor to satisfy the debtor’s obligation to the garnishor.” § 276.002(b). After the default judgment is entered as to liability, “the garnishor has the burden to establish the amount of actual damages proximately caused to the garnishor by the financial institution’s default.” § 276.002(c). After this burden has been met, the trial court may award damages to the garnishor as established under subsection (c). § 276.002(d)(1).
The parties to the present appeal dispute the appropriate construction of section 276.002. Regions contends that section 276.002 limits the trial court’s authority to enter default judgment in a garnishment proceeding against a financial institution to a determination that the financial institution is liable. Subsequent to this determination, Regions contends that the trial court must hold a separate hearing to determine the amount of damages that the financial institution is liable for. Centerpoint contends that section 276.002 is permissive and simply articulates that the trial court may enter a default garnishment that is limited to only a determination that the bank is liable. Further, Centerpoint contends that there is nothing in the statute that would require the trial court to hold a separate hearing to determine the appropriate amount of damages following a determination of liability.
No cases have construed section 276.002 since it has been enacted and, thus, this is a case of first impression. Applying the plain and common meaning of the words used, see Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999), we conclude that subsection (a) limits the trial court’s authority to enter default garnishment orders against financial institutions to a determination of liability and prohibits a determination of damages. Before the addition of section 276.002, a trial court was authorized to enter default judgments in garnishment proceedings brought against financial institutions under the authority of Texas Rule of Civil Procedure 667. See Tex. R. Civ. P. 667. As such, for section 276.002 to have any meaning, it must modify the prior authority granted trial courts by Rule 667. We construe subsection (a) as modifying the authority granted by Rule 667 by allowing the entry of a default garnishment order against a financial institution “solely as to the existence of liability and not as to the amount of damages.” § 276.002(a).
This construction is reenforced by subsection (b) of section 276.002. Subsection (b) prohibits making the presumption that the garnishee is indebted to the debtor in an amount sufficient to satisfy the claim of the garnishor upon which the assessment of damages in a typical default garnishment is premised. Compare § 276.002(b) (may not deem that the defaulting financial institution has possession of or knowledge of sufficient debts, assets, or personal effects of the debtor to satisfy the debtor’s obligation to the garnishor), with Norton, 34 S.W.2d at 1097 (the presumption of indebtedness arising from default in a garnishment proceeding estops the defaulting garnishee from challenging the ability to satisfy the garnishee’s claim). Because subsection (b) prohibits the presumption of indebtedness, subsection (c) expressly places the burden of establishing the extent of the financial institution’s indebtedness, and any additional damages, on the garnishor. See § 276.002(b), (c). While assigning the garnishor the burden of proving a defaulting financial institution’s indebtedness may be counterintuitive since the financial institution would be in the better position to assess the existence and extent of such indebtedness, we believe that this construction of the statute is the only way to give effect to the statute as a whole and in a manner that gives effect to each subsection. See Bd. of Adjustment of San Antonio v. Wende, 92 S.W.3d 424, 430 (Tex. 2002).
Based on our construction of section 276.002, we must now review the record to determine whether Centerpoint presented sufficient evidence to discharge the burden of proving Regions’s indebtedness to Hance. See Norman Commc'ns, 955 S.W.2d at 270 (review of a restricted appeal necessarily includes review of the legal and factual sufficiency of the evidence). The only evidence relating to the damages caused by Regions’s default in the garnishment proceeding is contained within Reven’s affidavit, which was attached to the application for writ of garnishment, and Pamela Galysh’s affidavit in support of default judgment. Galysh’s affidavit simply states that Hance owed Centerpoint $6,533.49 under the original judgment. Galysh provides no information upon which to determine the extent of Regions’s indebtedness to Hance, if any. Reven states that Centerpoint owns a judgment awarding it $6,468.81 against Hance, that she has no knowledge that Hance has sufficient property in Texas subject to execution to satisfy the debt, and that she believes and has reason to believe that Regions “has property belonging to the Debtor or is indebted to the Debtor.” While Reven’s affidavit does address Regions’s indebtedness to Hance, even taken as true, it does no more than establish that Regions is liable to Centerpoint. Nothing in Reven’s affidavit identifies the extent of Regions’s indebtedness to Hance. As such, we conclude that the evidence of Regions’s indebtedness to Hance, which cannot be deemed by Regions’s default, is no evidence and is legally insufficient to meet the burden of proof imposed on Centerpoint by section 276.002(c). Therefore, we must reverse the trial court’s award of damages against Regions.
Ordinarily, when an appellate court reverses a judgment on no evidence grounds, it renders judgment for appellant on that point. See Vista Chevrolet v. Lewis, 709 S.W.2d 176, 176 (Tex. 1986). However, because both Centerpoint and the trial court construed section 276.002 as requiring proof only of the liquidated damages found against Hance, the evidence of damages caused by Regions’s default has not been fully developed. When a case is reversed on legal sufficiency grounds but the evidence is in need of further development, it is appropriate to remand for a new trial rather than rendering judgment. See Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 86 (Tex. 1992).
Issue Two: Separate Hearing on Damages
Our resolution of Regions’s first issue pretermits our need to review Regions’s second issue. See supra note 2.
Conclusion
We affirm the judgment of the trial court to the extent that it finds Regions liable to Centerpoint, but reverse that portion of the judgment awarding damages to Centerpoint and remand for further proceedings consistent with this opinion.
Mackey K. Hancock
Justice