COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-17-00326-CV
ANDREA D. SMITH APPELLANT
V.
PALLIDA, L.L.C., SUCCESSOR IN APPELLEES
INTEREST OF DODEKA, L.L.C.
AND FROST BANK
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FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
TRIAL COURT NO. CV17-0117
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MEMORANDUM OPINION1
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The central question in this proceeding is whether Appellant Andrea D.
Smith’s request for findings of fact and conclusions of law extended her deadline
to file a notice of appeal. Because the trial court’s decision was made as a
1
See Tex. R. App. P. 47.4.
matter of law, we hold that her request did not extend her deadline and dismiss
the appeal.
I. The proceedings below
In February 2008, Dodeka, L.L.C. obtained a default judgment against
Smith. Nine years later, in January 2017, Appellee Pallida, L.L.C. filed an
application for writ of garnishment alleging that it was Dodeka’s successor-in-
interest and seeking to garnish funds belonging to Smith and held by Frost Bank.
In support of its application, Pallida attached an affidavit by its custodian of
records, Courtney Dodd, that asserted its status as a successor-in-interest,
stated that no payments had been made toward the judgment against Smith,
provided that Pallida had located no nonexempt assets belonging to Smith that
were available to satisfy the judgment, and recited the efforts taken by Pallida
and its predecessors to collect the judgment. A writ of garnishment was issued
on January 31, 2017.
On March 16, 2017, Smith filed a motion to dissolve the writ. Smith’s
arguments can be summarized as follows: (1) the writ of garnishment was
defective because it failed to include the language required by rule 663a, see
Tex. R. Civ. P. 663a; (2) Dodd’s affidavit was defective because it did not
establish how she obtained any “personal knowledge” of the debt or Smith’s
assets; (3) Pallida did not establish standing because the purported assignments
of the debt from Dodeka and, eventually, to Pallida were defective; and
(4) inconsistent statements were made over the years as to who owned the debt.
2
An affidavit signed by Smith was attached to the motion in which Smith asserted
that the statements in the motion regarding what Dodd knew or did not know
about property Smith owned in Texas were true and correct and that Smith had
not provided any information regarding her property to Dodd.
Pallida filed a response and attached a second affidavit by Dodd that
detailed the progression of assignments from Dodeka to three successor
companies and finally to Pallida in 2014. Attached to the affidavit were copies of
the assignments and bills of sale evidencing the transfers over the years.
At the April 20, 2017 hearing, Smith’s counsel focused on his arguments
that (1) the writ of garnishment failed to include mandatory language required by
rule 663a, see id.; (2) the business records affidavit submitted by Pallida in
support of the garnishment did not establish personal knowledge; and (3) Pallida
did not establish standing as a successor-in-interest. No evidence was admitted
and no testimony was offered by either side. At the conclusion of the hearing,
the trial court denied the motion to dissolve the writ.
Shortly thereafter, Pallida moved for entry of a judgment of garnishment.
At a brief hearing on the motion, Smith’s counsel argued that Pallida had not
proven that Smith was served with the writ of garnishment. Although the parties
stipulated as to the amount of Frost Bank’s attorney’s fees, Smith’s counsel also
complained that there was nothing showing how the final amount of the writ
($30,644.14) was calculated. He also took issue with the order’s provision that,
upon appeal or reformation of the judgment, the funds should be returned to the
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registry of the trial court. The trial court again overruled his objection to the form
of the writ, overruled his objection regarding the calculation of the amount due,
and sustained his objection regarding the return of funds. The trial court signed a
final judgment of garnishment on June 27, 2017, awarding $30,644.14 to Pallida.
On July 14, 2017, Smith filed a request for findings of fact and conclusions
of law under rule 296, which if appropriate, would have extended Smith’s original
deadline for filing a notice of appeal—July 27, 2017—to September 25, 2017.
See Tex. R. Civ. P. 296, Tex. R. App. P. 26.1(a)(4). On August 4, 2017, the trial
court sent a letter to the parties expressing its concern that findings of fact and
conclusions of law may not be appropriate and requesting the parties to submit
any authority indicating otherwise. Thus, Smith was apprised of the trial court’s
concern well within the period of time when Smith could have invoked this court’s
jurisdiction by filing a notice of appeal. See Verburgt v. Dorner, 959 S.W.2d 615,
617 (Tex. 1997) (holding that the filing of a perfecting instrument within the
fifteen-day period after the date it was due implied a request for an extension);
see also Hone v. Hanafin, 104 S.W.3d 884, 886 (Tex, 2003) (applying Verbugt to
a notice of appeal filed in fifteen-day window for extension). Instead of filing her
notice of appeal on August 4—or at least by August 11—on August 11, Smith filed
a notice of past due findings of fact and conclusions of law. See Tex. R. Civ. P.
297. In the weeks that followed, both parties filed letter briefs arguing over
whether findings of fact and conclusions of law were appropriate in this case. In
the end, the trial court did not issue any findings of fact and conclusions of law.
4
Smith filed a notice of appeal on September 25, 2017, 90 days after the
final judgment was signed.2
II. Pallida’s motion to dismiss
Pallida has filed a motion to dismiss Smith’s appeal arguing that because
Smith’s request for findings of fact and conclusions of law did not serve to extend
the deadline for filing her notice of appeal, her notice of appeal was untimely. In
response, Smith argues that because the trial court made factual determinations
in denying her motion to dissolve the writ and in denying her objections to the
form of the final judgment of garnishment, her appellate deadlines were extended
by her request for findings and conclusions.
A. Applicable law
With a few exceptions, a notice of appeal must be filed within 30 days after
a trial court’s judgment is signed. Tex. R. App. P. 26.1. One such exception
extends the time period to file the notice of appeal to 90 days when a party files a
request for findings of fact and conclusions of law “if findings and conclusions
either are required by the rules of civil procedure or, if not required, could
2
Even if Smith’s request for findings of fact and conclusions of law had
extended the notice of appeal deadline to September 25, 2017, the rules do not
preclude a party from filing her notice of appeal earlier. See Tex. R. App. P.
27.1(a) (providing that a prematurely filed notice of appeal is effective and
deemed filed on the day of, but after, the event that begins the period for
perfecting the appeal). Thus, nothing prevented Smith from filing her notice of
appeal on August 4, when the trial court expressed its concern that findings of
fact and conclusions of law were not appropriate in this case.
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properly be considered by the appellate court.” Tex. R. App. P. 26.1(a)(4). The
rules of civil procedure provide that a party may request the court to issue written
findings of facts and conclusions of law “[i]n any case tried in the district or
county court without a jury.” Tex. R. Civ. P. 296.
The Texas Supreme Court has held that a request for findings of fact and
conclusions of law “does not extend the time for perfecting appeal of a judgment
rendered as a matter of law, where findings and conclusions can have no
purpose and should not be requested, made, or considered on appeal.” IKB
Indus., (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 443 (Tex. 1997). For
instance, findings and conclusions have no place in a case resolved by summary
judgment because, “if summary judgment is proper, there are no facts to find,
and the legal conclusions have already been stated in the motion and response.”
Id. at 441. Because an appellate court cannot consider findings of fact in
connection with a summary judgment, a request for findings in such a case will
not serve to extend the appellate deadlines. Id. at 441–42. Requests for findings
and conclusions have also been held unnecessary for judgments following a
directed verdict, judgments non obstante veredicto, default judgments awarding
liquidated damages, dismissals for want of prosecution without an evidentiary
hearing, dismissals for want of jurisdiction without an evidentiary hearing,
dismissals based on the pleadings or special exceptions, judgments rendered
without an evidentiary hearing, and cases tried upon an agreed statement of
facts. See id. at 443 (listing the first seven examples); Int’l Union, United Auto.,
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Aerospace & Agric. Implement Workers of Am.–UAW v. Gen. Motors Corp., 104
S.W.3d 126, 129 (Tex. App.—Fort Worth 2003, no pet.) (dismissing as untimely
an appeal of a judgment after a trial upon agreed facts). But see Davis v. State,
904 S.W.2d 946, 951 (Tex. App.—Austin 1995, no writ) (holding that findings
may be proper in rare instances where inferential findings beyond the agreed
facts may be necessarily compelled by the facts as a matter of law). In all of the
foregoing situations, the trial court is not called upon to determine questions of
fact based on conflicting evidence. See Int’l Union, 104 S.W.3d at 129; Port
Arthur ISD v. Port Arthur Teachers Ass’n, 990 S.W.2d 955, 958 (Tex. App.—
Beaumont 1999, pet. denied).
In comparison, a request for findings and conclusions is appropriate after a
conventional trial before the court, a default judgment on a claim for unliquidated
damages, a judgment rendered as sanctions, or any judgment based in any part
on an evidentiary hearing. IKB Indus., 938 S.W.2d at 443.
B. The dissolution hearing
Two hearings were held in this case: the first on Smith’s motion to dissolve
the writ of garnishment and the second on Pallida’s motion for entry of judgment.
Smith does not dispute that the dissolution hearing was not evidentiary. In fact,
Smith argues that Pallida’s failure to present evidence or testimony at the
dissolution hearing means that Pallida failed to meet its burden and the trial court
was required to dissolve the writ. See Tex. R. Civ. P. 664a (providing that writ
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shall be dissolved unless the plaintiff proves the grounds relied upon for its
issuance).
To support a garnishment action, civil practice and remedies code section
63.001(3) requires that Pallida show that (1) it held a valid, subsisting judgment
and (2) that, within its knowledge, Smith did not possess property in Texas
subject to execution to satisfy the judgment. Tex. Civ. Prac. & Rem. Code Ann.
§ 63.001(3) (West 2008). Texas rule of civil procedure 664a provides that “[t]he
court’s determination [of whether the plaintiff met its burden] may be made upon
the basis of affidavits, if uncontroverted, setting forth such facts as would be
admissible in evidence; otherwise, the parties shall submit evidence.” Tex. R.
Civ. P. 664a. To meet these requirements, Pallida submitted two business
records affidavits. The first affidavit asserted Pallida’s status as a successor-in-
interest to Dodeka, stated that the judgment was valid and no payments had
been made toward the judgment, and stated that Pallida “ha[d] conducted post-
judgment review of its records, as well as Internet and public records database
searches regarding Judgment Defendant to try to locate non-exempt assets, but
Plaintiff found none.” It also listed the efforts taken by Pallida and its
predecessors to conduct postjudgment discovery to locate any such assets.
Dodd’s second affidavit repeated the statements made in the first affidavit,
expanded upon the transfers of the judgment from Dodeka to three successor
companies and then to Pallida, attached documentation of those transfers, and
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corrected a minor misstatement in the first affidavit describing a communication
with Smith as a settlement offer rather than a notice of change of contact.
In her motion to dissolve the writ of garnishment and at the hearing on her
motion, Smith questioned Dodd’s personal knowledge and criticized the form of
the affidavits and the documents submitted to show the transfer of the judgment
to Pallida, but she did not provide any evidence contradicting Dodd’s statements.
With the exception of one nonessential fact, Smith’s affidavit generally denied but
did not dispute any of the facts asserted by Pallida in support of its application for
garnishment:
I am the Defendant in the underlying collection case, as well as in
this garnishment action; and I have read the above Motion; and that
every statement in the motion regarding what Ms. Dodd knows (or
does not know) about my property in Texas, are within my personal
knowledge and are true and correct. She did not provide any facts
about what she knows about me or my property, and I do not know
Ms. Dodd; I did not provide her with any information about me
through discovery or any other process. The copy of the
November 2, 2011 letter stating that the judgment had been sold to
Alasia, LLC is a true and correct copy of the original. Ms. Dodd does
not say what she knows about me, my property, or how she obtained
that information. It appears that she relied on something from
someone other than herself, but she does not say who it is or what
they research about me. I notice that she says that a prior
garnishment was dismissed “due to a lack of non-exempt funds held
by the garnishee.” That’s not accurate—because the prior
garnishment was against Chase, and I did not have any bank
account with Chase, so there was no reason to attempt a
garnishment on a bank where I did not have an account. I deny the
statements made in the Application and the Affidavit.
Importantly, she did not dispute Dodd’s statement that Smith lacked any property
in Texas subject to execution sufficient to satisfy the judgment.
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“[U]ndisputed evidence that allows of only one logical inference” is
conclusive evidence; it can only be viewed in one light, and the factfinder can
only reach one conclusion from it. City of Keller v. Wilson, 168 S.W.3d 802, 814
(Tex. 2005) (quoting St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 519–20 (Tex.
2002) (plurality op.)). Because Smith presented no contradicting evidence, there
was no factual dispute for the trial court to resolve. Smith’s argument to this
court that the trial court had to decide three issues of fact in making its decision
on the basis of the affidavits before it is misplaced. As presented to the trial
court, those three issues—whether the writ of garnishment was defective for
failing to include the language required by rule 663a, whether the Dodd affidavits
were based on her personal knowledge and would be admissible in evidence,
and whether Pallida established itself as a successor-in-interest to Dodeka and
the owner of the judgment—were issues of law.
As to the first issue, the parties do not dispute that the language required
by rule 663a was included in a letter attached to the writ of garnishment but not in
the writ itself. Whether it is fatal to fail to include that language in the actual writ
itself is a question of law. Cf. State v. Shumake, 199 S.W.3d 279, 284 (Tex.
2006) (noting that statutory construction is a question of law). The second issue,
whether the affidavit was based upon Dodd’s personal knowledge sufficient to
support the application for a writ of garnishment, is likewise a question of law.
See Tex. R. Civ. P. 658 (providing that affidavit in support of writ of garnishment
application must be “made on personal knowledge and shall set forth such facts
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as would be admissible in evidence; provided that facts may be stated based
upon information and belief if the grounds of such belief are specifically stated”);
see also Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008) (holding that affidavit
was legally insufficient for its failure to establish the affiant’s personal knowledge
of the facts attested to). Finally, whether Pallida established that it was the
successor-in-interest to Dodeka is a question of law because the facts asserted
by Dodd and supported by the transfer documents are uncontroverted. Cf.
Haddix v. Am. Zurich Ins. Co., 253 S.W.3d 339, 346 (Tex. App.—Eastland 2008,
no pet.) (holding that findings and conclusions were not required in plea to
jurisdiction decided on undisputed facts).
Because the trial court did not have to resolve any factual dispute in
denying Smith’s motion to dissolve the writ of garnishment, findings and
conclusions would have served no purpose in this appeal. See Port Arthur ISD,
990 S.W.2d at 958 (“Findings and conclusions are appropriate if there is an
evidentiary hearing, and the trial court is called upon to determine questions of
fact upon conflicting evidence.”). Thus, Smith’s request for findings and
conclusions in this regard did not extend her deadline to file a notice of appeal.
Int’l Union, 104 S.W.3d at 129–30 (dismissing appeal for lack of jurisdiction
where trial court’s decision was based on “the briefs and exhibits, as previously
agreed by the parties,” and, as such, request for findings and conclusions did not
extend appellate deadlines).
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C. The hearing for entry of a final judgment
Alternatively, Smith argues that the hearing on Pallida’s motion for entry of
a final judgment was an “actual trial” that “resulted in the rendition of a judgment
based on issues of law and fact.” To support her argument, Smith relies upon
the three objections her counsel made at the hearing, but the lodging of
objections is not the test to determine whether a matter was heard or tried. In
determining whether the appellate deadlines have been extended by a request
for findings and conclusions, we have previously noted that a case is “tried” if
there is an evidentiary hearing in which the trial court is called upon to determine
questions of fact upon conflicting evidence. O’Donnell v. McDaniel, 914 S.W.2d
209, 210 (Tex. App.—Fort Worth 1995, writ denied).
No conflicting evidence was admitted at the hearing for entry of a final
judgment.3 Smith’s counsel lodged three objections “to the form of the
[proposed] [j]udgment.” First, he took issue with the statement in the proposed
judgment that Smith had been properly served with the writ of garnishment and
argued that there was “no such proof offered.” The trial court determined that
this had been resolved in the prior hearing on the motion to dissolve the writ of
garnishment and overruled the objection. Second, Smith’s counsel objected to
the lack of any documentation of the calculation of the amount due as it was
3
The only exhibits offered into evidence were a stipulation to Frost Bank’s
attorney’s fees and a copy of the 2008 default judgment entered against Smith.
Both were admitted without objection from Smith’s counsel.
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reflected in the proposed judgment. After Pallida’s counsel explained how the
amount was calculated, the trial court overruled the objection. Finally, Smith’s
counsel objected to the proposed judgment’s requirement that the funds should
be returned to the registry of the trial court in the event the judgment was set
aside or reformed. This objection was sustained and that provision was removed
to allow the return of funds directly to Smith.
Smith’s counsel’s objections did not transform the hearing into a trial
sufficient to invoke the provisions of rule 296. See Tex. R. Civ. P. 296 (permitting
a request for findings and conclusions in any case “tried” in the district court);
O’Donnell, 914 S.W.2d at 210 (holding that hearing on motion to dismiss and
motion for sanctions was not a trial where trial court only decided that plaintiff’s
suit did not state a cause of action). Thus, under these circumstances, Smith’s
request for findings and conclusions did not serve to extend the appellate
deadlines.
Conclusion
Having found that there were no issues of disputed fact decided by the trial
court, we hold that Smith’s request for findings and conclusions did not extend
the 30-day deadline to file her appeal, and therefore her notice of appeal was
untimely. Tex. R. App. P. 26.1.4 We therefore grant Pallida’s motion to dismiss
4
After Pallida filed its motion to dismiss, Smith filed a motion to abate the
appeal and compel the trial court to enter findings and conclusions. Because we
have determined that findings and conclusions were not warranted, we deny the
motion.
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and dismiss the appeal for want of jurisdiction.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
CHIEF JUSTICE
PANEL: SUDDERTH, C.J.; WALKER and MEIER, JJ.
WALKER, J., dissents without opinion.
DELIVERED: February 15, 2018
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