Opinion issued July 24, 2014.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00706-CV
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STEPHEN J. HARPER, Appellant
V.
SPENCER & ASSOCIATES, P.C., Appellee
On Appeal from the County Civil Court at Law No. 1
Harris County, Texas
Trial Court Case No. 709957
OPINION
Stephen J. Harper appeals the trial court’s order granting Spencer’s motion
for scire facias to revive a dormant judgment against Harper. Harper contends that
the August 2001 writ of garnishment issued by the trial court was not a “writ of
execution” that extended the enforceability of the judgment for an additional ten
years beyond the date of the writ’s issuance and that, as a result, the judgment had
been dormant for more than ten years and could not be revived. See TEX. CIV.
PRAC. & REM. CODE ANN. § 34.001(b) (West 2008). We hold that the writ of
garnishment qualifies as a writ of execution for purposes of section 34.001(b); we
therefore affirm.
Background
During the 1990’s, Spencer provided legal services to Seven Oaks Farms,
Ltd. and Harper, both individually and in his capacity as president of Seven Oaks.
When Harper failed to pay the fees owed for the representation, Spencer sued for
breach of contract. Spencer prevailed. In 1999, the trial court signed a judgment
awarding him $33,237.28 plus ten percent annual interest, court costs, and $5,000
in attorney’s fees in this case (Case Number 709,957) (the original judgment).
This appeal is from one of several actions Spencer has filed in Harris County
Court Number One in an effort to collect on the original judgment, to no avail. In
addition to other debt collection actions, Spencer sued in Harris County Civil Court
at Law Number One for two charging orders. The first sought a charging order
against Stephen Harper individually, the Steve J. Harper Family Limited
Partnership, and ZO Resources—entities that Spencer learned, through post-
judgment discovery, in which Harper had membership or ownership interests. In
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that action (Case Number 741,179) the trial court granted the charging order in
March 2001. It also sanctioned Harper for post-judgment discovery violations in
connection with Spencer’s efforts to collect on the original judgment, requiring
payment of $3,000 as reimbursement for the attorney’s fees that Spencer incurred
in the discovery dispute.
Spencer procured the second charging order against Steve J. Harper Family
Limited Partnership, also in March 2001, under Cause Number 741,775. This
charging order sanctioned Harper’s post-judgment discovery conduct, awarding
Spencer $3,000 in additional attorney’s fees.
The revival dispute forming the basis of this appeal centers on a writ of
garnishment issued to Spencer in October 2001 under Case Number 709,957-801;
thus, a writ in an ancillary action related to the original suit. The writ named
Broadway Bank as garnishee. Referencing the first charging order, Spencer sought
to garnish an account held in the name of ZO Resources. The trial court granted
the application; the constable executed the writ. In June 2002, the parties and the
trial court signed an agreed judgment providing that ZO Resources owed Spencer
$3,354.25; the order required the bank to deliver that amount to Spencer.
In July 2013, Spencer sought the appointment of a receiver to aid in
collection on the original judgment against Harper. When Harper responded that
the judgment had become dormant, Spencer, based on the writ of garnishment,
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applied for scire facias to revive the judgment. The trial court granted the
requested relief.
Discussion
Harper contends that the trial court erred in reviving the judgment because it
had been dormant for more than twelve years; in particular, he challenges the trial
trial court’s implicit finding that the October 2001 writ of garnishment action
involving Broadway Bank qualified as a “writ of execution,” sufficient to revive
the judgment under Texas law.
Applicable law and standard of review
Chapter 34 of the Civil Practice and Remedies Code, governing the
execution of judgments, provides: “If a writ of execution is not issued within 10
years after the rendition of a judgment of a court of record . . . , the judgment is
dormant and execution may not be issued on the judgment unless it is revived.”
TEX. CIV. PRAC. & REM. CODE § 34.001(a). Thereafter, a judgment creditor may
renew it “indefinitely by having a writ of execution issued within ten years of the
previous writ” to prevent the judgment from becoming dormant. Cadle Co. v.
Fahoum, No. 2-06-459-CV, 2008 WL 754992, at *2 (Tex. App.—Fort Worth Mar.
20, 2008, no pet.) (mem. op.); see TEX. R. CIV. P. 34.001(b).
Once it becomes dormant, a judgment can be “revived” by a petition for writ
of scire facias or an action of debt. A creditor must bring either type of action no
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later than two years after the judgment becomes dormant. Id. § 31.006. Section
31.006 has the effect of creating a twelve-year residual limitations period for final
judgments. Burnett-Dunham v. Spurgin, 245 S.W.3d 14, 17 (Tex. App.—Dallas
2007, pet. denied); Longhurst v. Clark, No. 01-07-00226-CV, 2008 WL 3876175,
at *2 (Tex. App.—Houston [1st Dist.] Aug. 21, 2008, no pet.) (mem. op.).
In determining whether to revive a dormant judgment, a trial court considers
the date of the judgment, evidence of any writs of execution issued on the
judgment, and the date of the motion to revive. See TEX. CIV. PRAC. & REM. CODE
ANN. § 31.006; Cadle Co. v. Rollins, No. 01-09-00165-CV, 2010 WL 670561, at
*2 (Tex. App.—Houston [1st Dist.] Feb. 25, 2010, no pet.) (mem. op.); see also
Trad v. Colonial Coins, Inc., No. 14-02-00172-CV, 2003 WL 124680, at *2 (Tex.
App.—Houston [14th Dist.] Jan. 16, 2003, no pet.) (mem. op.) (stating that
because appellant timely filed motion for scire facias, the judgment “should be
revived,” and indicating that revival of judgment is not discretionary if statutory
requirements to revive dormant judgment are satisfied).
Whether the writ of garnishment executed on Broadway Bank to recover
assets held in an account by ZO Resources satisfies the statutory requirement of a
writ of execution issued on the original judgment is a question of law we review de
novo. See Tex. Lottery Comm’n v. First State Bank of Dequeen, 325 S.W.3d 628,
635 (Tex. 2010).
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Defining a “writ of execution”
Harper first contends that a writ of garnishment action does not qualify as a
“writ of execution” for purposes of extending the life of a judgment. Thus, we first
consider whether Chapter 34’s reference to a “writ of execution” encompasses a
writ of garnishment. Our rules of civil procedure define “an execution” as
a process of the court from which it is issued. The clerk of the district
or county court or the justice of the peace, as the case may be, shall
tax the costs in every case in which a final judgment has been
rendered and shall issue execution to enforce such judgment and
collect such costs . . . [J]udgments of the district, county, and justice
courts shall be enforced by execution or other appropriate process.
Such execution or other process shall be returnable in thirty, sixty, or
ninety days as requested by the plaintiff, his agent or attorney.
TEX. R. CIV. P. 621, 622. The rules thus define an execution as a process, issued
by a court, executed through a Texas sheriff or constable or other appropriate
means for purposes of collecting on a judgment. TEX. R. CIV. P 629.
Garnishment is one means of collecting on a judgment. It is a statutory
remedy available to a judgment debtor against a third party who is in possession of
the judgment debtor’s nonexempt personal property. See Bank One, Tex., N.A. v.
Sunbelt Sav., F.S.B., 824 S.W.2d 557, 558 (Tex. 1992); Bank One, N.A. v.
Wohlfahrt, 193 S.W.3d 190, 194 (Tex. App.—Houston [1st Dist.] 2006, no pet.);
see generally TEX. R. CIV. P. 657–679; TEX. CIV. PRAC. & REM. CODE ANN.
§ 63.001. Upon service of the writ of garnishment, assets of the judgment debtor
in the possession of the garnishee are brought “within the control of the court.”
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Tex. Commerce Bank-New Braunfels, N.A. v. Townsend, 786 S.W.2d 53, 55 (Tex.
App.—Austin 1990, writ denied). Service of the writ of garnishment creates a lien
on the judgment debtor’s property, impounding the funds in the hands of the
garnishee bank. Rome Indus., Inc. v. Intsel Sw., 683 S.W.2d 777, 779 (Tex.
App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.). Through strict compliance
with the garnishment statutes, a plaintiff in garnishment steps into the shoes of his
debtor as against the garnishee, and may enforce, as against the garnishee, any
rights the debtor could have enforced against the garnishee directly. Rowley v.
Lake Area Nat’l Bank, 976 S.W.2d 715, 718–19 (Tex. App.—Houston [1st Dist.]
1998, pet. denied); Baytown State Bank v. Nimmons, 904 S.W.2d 902 (Tex. App.—
Houston [1st Dist.] 1995, writ denied); see Beggs v. Fite, 106 S.W.2d 1039, 1042
(Tex. 1937).
The Finance Code governs the writ of garnishment issued in this case. See
TEX. FIN. CODE ANN. § 59.008 (West 2013). A bank will comply with a writ of
garnishment without requiring formal execution, unless the judgment debtor-
customer seeks to block the bank’s compliance with the garnishment judgment.
See TEX. FIN. CODE ANN. § 59.008(c) (explaining that “[t]he customer bears the
burden of preventing or limiting a financial institution’s compliance with or
response to a claim made subject to this section by seeking an appropriate remedy,
including a restraining order, injunction, protective order, or other remedy, to
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prevent or suspend the financial institution’s response to a claim against the
customer”). Neither Harper nor ZO Resources opposed the writ of garnishment;
the trial court signed an agreed judgment ordering the Bank to pay Spencer the
funds available in ZO Resources’ account.
Harper contends that the writ of garnishment is not a “writ of execution” as
the statue requires for extending the life of a judgment. He relies on Shields v.
Stark, 51 S.W. 540 (Tex. Civ. App.—Fort Worth 1899, no writ), to support his
position. Significantly, Shields predates the enactment of the Texas Rules of Civil
Procedure, including Rule 622’s definition of execution as a judicial process
directing the enforcement of a judgment. See TEX. R. CIV. P. 622. Shields
involved an 1885 judgment rendered against J.T. Walters’s wife, which Stark had
obtained through an assignment in 1896. Id. at 540. When Stark sued to recover
on the judgment, Shields responded that the judgment was dormant. Id. The trial
court concluded that a writ of garnishment, issued in 1895, kept the judgment from
becoming dormant, but the court of appeals disagreed. Id. It held that the writ of
garnishment was not “in any sense an execution” and the record showed no
judgment or execution in the garnishment suit; as a result, the court of appeals
concluded that Stark did not demonstrate any action in furtherance of collecting on
the original judgment. Id.
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We disagree that the analysis in Stark applies in the present case. Unlike
Stark, the record in this case shows that the trial court granted the writ and the
garnishment order was executed. And, under our modern rules, a “writ of
execution” as used in context, can be read to encompass multiple specific forms of
judicial enforcement of a judgment. As the Eastland Court of Appeals observed in
In re V.R.N., Texas courts have held that a variety of judgment collection activities
may revive a judgment. 188 S.W.3d 835, 837 & n.1 (Tex. App.—Eastland 2006,
pet. denied); see, e.g., Williams v. Masterson, 306 S.W.2d 152, 155–56 (Tex. Civ.
App.—Houston 1957, writ ref’d n.r.e.) (holding that section 34.001’s predecessor
included writs of possession within the statutory term “execution”); Swafford v.
Holman, 446 S.W.2d 75, 80 (Tex. Civ. App.—Dallas 1969, writ ref’d n.r.e.) (order
of sale); Grissom v. F.W. Heitmann Co., 130 S.W.2d 1054, 1056–57 (Tex. Civ.
App.—Galveston 1939, writ ref’d) (alias execution); Ludtke v. Bankers’ Trust Co.,
251 S.W. 600, 604 (Tex. Civ. App.—Galveston 1922, writ ref’d) (writ of
venditioni exponas). We hold that the writ of garnishment in this case satisfies the
statutory requirement that it be a writ of execution.
Relation to the original judgment
Harper next complains that, because the writ of garnishment refers to the
attorney’s fees awarded in the first charging order and not expressly to the funds
awarded in the original judgment, which was designated with a different cause
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number, Spencer cannot revive the original judgment. We disagree. First, the
attorney’s-fee award in the first charging order resulted from Harper’s obstructive
behavior in response to Spencer’s efforts to collect on the original judgment. It
was part and parcel of Spencer’s collection efforts on the original judgment.
Second, the proof supporting the writ of garnishment traced the garnished funds to
Harper, the judgment debtor in the original judgment. That the assets only
satisfied some of the attorney’s fees that Spencer incurred in post-judgment
discovery, and were insufficient to discharge the original judgment debt itself, does
not sever the garnishment’s connection to the original judgment, from which all
liability for the judgment and post-judgment attorney’s fees arose. We hold that
the record supports the trial court’s determination that the garnishment action was
executed in furtherance of collection of the underlying judgment.
Once Spencer executed the writ of garnishment on assets belonging to
Harper, Spencer was not required to undertake the further exercise of obtaining a
writ of execution directly against Harper to keep the original judgment from
becoming dormant. See Kelly v. Gibbs, 19 S.W. 563, 564 (Tex. 1892) (reasoning
that garnishment is just a method of enforcing execution); Baca v. Hoover, Bax, &
Shearer, 823 S.W.2d 734, 740 (Tex. App.—Houston [14th Dist.] 1992, writ
denied) (same). Accordingly, we reject Harper’s contention that the trial court
erred in reviving the original judgment.
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Conclusion
The trial court properly revived the dormant judgment. We therefore affirm
the order of the trial court.
Jane Bland
Justice
Panel consists of Justices Keyes, Bland, and Brown.
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