Kathie Digilio v. True Blue Animal Rescue

Opinion issued March 18, 2021

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-18-01087-CV
———————————
KATHIE DIGILIO, Appellant/Cross-Appellee
V.
TRUE BLUE ANIMAL RESCUE, Appellee/Cross-Appellant

On Appeal from the 506th District Court
Waller County, Texas
Trial Court Case No. 16-10-23953

MEMORANDUM OPINION ON REHEARING

Appellee and Cross-Appellant, True Blue Animal Rescue (TBAR), filed a

motion for rehearing of this Court’s July 28, 2020 opinion. We deny the motion for

rehearing, but we withdraw our July 28, 2020 opinion and judgment and issue this

opinion and judgment in their stead.
 This case began as an animal cruelty case in which the Waller County District

Attorney’s Office (WCDAO) removed 34 horses from the care of appellant/cross-

appellee Kathie Digilio and prosecuted her for animal cruelty. The criminal

proceeding against her was ultimately dismissed, and WCDAO reached a settlement

with Digilio in the civil divestiture proceedings by which 24 of the seized horses

would be given to appellee/cross-appellant True Blue Animal Rescue (TBAR), three

of the seized horses would be returned to a third-party buyer, and seven horses would

be returned to Digilio. Digilio also agreed to pay (and did actually pay) TBAR

$30,000 for its care of the horses while the animal cruelty case was pending. The

justice court with jurisdiction over the cruelty case rendered a judgment effectuating

the agreement between WCDAO and Digilio.

This appeal arises out of TBAR’s collateral attack, filed in the 506th District

Court of Waller County (the trial court), seeking to declare void portions of the

justice court’s judgment, asking the trial court to declare that TBAR should be

awarded all 34 seized horses and that Digilio should pay TBAR $232,900.09 for

boarding and caring for the horses. Digilio asserted counterclaims against TBAR for

conversion of her seven horses, tortious interference with her agreement with

WCDAO, and injunctive relief. The trial court granted summary judgment

dismissing both TBAR’s claims for declaratory relief and Digilio’s counterclaims.

2
Both TBAR and Digilio now challenge the trial court’s granting of summary

judgment.

Because we conclude that TBAR was not entitled to its requested declaratory

relief as a matter of law and that Digilio failed to provide evidence of an essential

element of her counterclaims, we affirm.

Background

A. Waller County seized Digilio’s horses/Resolved in Justice Court:

On July 9, 2015, pursuant to a search and arrest warrant, an officer with the

WCDAO arrested Digilio, charged her with felony animal cruelty, and seized 34

horses from her property. TBAR, a 501(c)(3) charitable organization dedicated to

animal welfare and adoption, agreed to shelter the horses. The next day, TBAR

received possession of the 34 horses.

Over a year later, the case against Digilio remained pending. On August 1,

2016, the Waller County Justice Court, Precinct 1, (justice court) issued a seizure

warrant pursuant to Texas Health and Safety Code section 821.022, providing that

TBAR maintain custody of the horses and setting a hearing:

[T]he animals shall be IMPOUNDED and held in the custody and
control of . . . True Blue Animal Rescue in accordance with Section
821.022, Health and Safety Code, for the purpose of a hearing to
determine whether the animal(s) has/have been cruelly treated as
defined under the laws of the State of Texas.

3
 At the time this warrant issued, TBAR had been in possession of the horses

for more than a year. Attached to the warrant was (1) a list of the 34 horses that had

been seized in July 2015, describing each horse and its body condition at the time of

seizure; (2) an expert report from large-animal veterinarians stating concerns with

the poor body condition of the horses, the size and quality of pastures, the

unrestrained breeding that was increasing the size of the herd, and the amount of

food and veterinary care the animals were receiving; and (3) the affidavit for the

search and arrest warrant from July 2015.

WCDAO subpoenaed TBAR’s president, Melanie DeAeth, to testify at the

hearing set on September 2, 2016. DeAeth appeared and was prepared to testify;

however, no hearing occurred because WCDAO and Digilio came to an agreement.

DeAeth provided an affidavit in which she averred that she “was not given an

opportunity to present evidence to the [justice court] regarding TBAR’s costs

incurred,” which she claimed totaled $232,900.09. DeAeth further asserted that she

would have testified to “the condition of the horses and TBAR’s opposition” to the

horses being returned to Digilio.

Rather, on September 2, 2016, prior to the hearing being held, the WCDAO

and Digilio reached an agreement regarding disposition of the horses, and the justice

court signed an order titled “Order: Cruelly Treated Animals Hearing (Sec. 821.023

H.S.C.)” in light of this agreement (September 2 Order). The justice court found that

4
Digilio was the owner of the 34 seized horses and that Digilio treated the animals

cruelly “by improperly caring for the horses and maintaining too many horses on her

property.” The justice court ordered that Digilio “be divested of ownership of . . . 27

horses including three sold prior to seizure,”1 referring to the “court order and

agreement reflected and entered by the parties.”

The September 2 Order further provided that “the 24 horses as per the

agreement between the State of Texas [as represented by the WCDAO] and

defendant [Digilio]” be given to TBAR and that the “three horses including ‘Flyer’

[be] returned to their owners per the agreement.” The justice court ordered the return

of seven of the horses to Digilio, as provided for in the parties’ agreement. Finally,

the justice court found “that the estimated costs likely to be incurred to house and

care for the impounded animals during the appeal process is $30,000. It is therefore

ordered that the amount of the bond necessary to perfect an appeal is $30,000.”

On September 19, 2016, the “Agreement of Kathie Digilio and the Waller

County District Attorney’s Office” that was referenced in the September 2 Order

was filed. The Agreement explained that “Digilio is awarded seven horses to be

1
After the horses were seized, Digilio provided law enforcement with information
indicating that she had previously sold some of the horses to a third party. The record
is unclear regarding exactly when these sales occurred, but Digilio and the WCDAO
eventually identified Clint Kolz as the third party to whom Digilio had sold three of
the seized horses.
5
chosen by her after payment of restitution to True Blue through the District

Attorney’s Office.” The Agreement further stated,

Three individuals shall complete paperwork or submit bills of sale to
the District Attorney’s Office in order to acquire three horses that were
purchased prior to the seizure. . . . One of these horses is identified as
‘Flyer’ and he shall be picked up upon payment of $12,000 restitution
made out to True Blue. The other two horses shall be picked up by their
owners or qualified designees after the remaining restitution has been
paid to the District Attorney’s Office, namely the sum of $18,000 due
on September 16, 2016, payable to the District Attorney’s Office. . . .

Once the restitution mentioned above is paid to the District Attorney’s
Office, the ten horses mentioned above shall no longer be the property
of True Blue. . . .

Digilio shall reimburse True Blue in the sum of $30,000 for the care of
the horses including $12,000 paid by September 2, 2016 and $18,000
paid within two weeks. Payment shall be made to the WCDA who shall
then tender the amounts to True Blue. . . .

This agreement is only valid between and applicable to the District
Attorney’s Office and the defendant through the court and the court
order entered September 2, 2016. No other parties, including True Blue,
are parties to this agreement.

The Agreement also provided for Digilio to obtain “certification” of her

property as being appropriate to care for the number of horses she has; prohibited

her from acquiring new horses, including through breeding; and stated that Digilio

waived her right to appeal the justice court’s order regarding possession of the horses

although “[t]he criminal case and appeals therefrom are not affected by this hearing

or agreement.”

6
 The Agreement concluded at the bottom: “This agreement is a reflection of

the agreement and court order entered in the Honorable Court on September 2, 2016

and is adopted by the Court as the final and binding court order in this case.” It was

signed by the justice court on September 19, 2016.

On October 3, 2016, the justice court rendered a supplemental order revising

its findings and final order (October 3 Supplemental Order). The justice court again

found that Digilio was the owner of the 34 horses seized from her property and

described them particularly in an inventory attached to the supplemental order. The

justice court further found that “7 horses are awarded to Kathie Digilio pursuant to

the agreement in this file” and identified the horses by their number in the attached

inventory. The justice court awarded three specific horses to a third-party buyer,

Clint Kolz, and it found “that the remaining 24 horses were subject to unintentional

mistreatment and are awarded to True Blue Animal Rescue pursuant to an agreement

entered into between the State of Texas [as represented by the WCDAO] and the

defense [Digilio] that these horses are the personal property of [TBAR].” Finally,

the October 3 Supplemental Order required Digilio to pay costs of $30,000, noting

that these costs were “previously paid pursuant to the agreement as reimbursement

for the costs of True Blue Animal Rescue.”

The October 3 Supplemental Order did not include any findings regarding

cruel treatment of the 10 horses awarded to Digilio and Kolz. It further stated,

7
“[T]his Supplemental Order shall supersede and take the place of the previous Court

Ordered entered and filed on September 2, 2016, thereby making this the final order

on this case.”

B. TBAR’s Suit against the County in District Court

On October 3, 2016, the same day the justice court rendered its October 3

Supplemental Order, TBAR filed the underlying suit against Waller County. In its

original petition, TBAR alleged that Waller County and Digilio “determined

amongst themselves that Digilio would reimburse TBAR $30,000.00 for the care of

the 34 horses that TBAR boarded, fed, cared for, paid veterinary bills and nursed

back to health for 15 months,” but that TBAR itself “was not a part of that

negotiation” and that the amount of reimbursement “is far lower than what TBAR

has paid to care for these 34 horses.” TBAR alleged that, at the time it filed suit, its

total expenses were $232,900.09.

TBAR relied on Health and Safety Code chapter 821 in challenging the justice

court’s orders. Health and Safety Code chapter 821 permits a peace officer to apply

for a warrant to seize an animal if the officer has reason to believe that the animal

has been cruelly treated. TEX. HEALTH & SAFETY CODE § 821.022(a). Section

821.022 further provides:

(b) On a showing of probable cause to believe that the animal has been
or is being cruelly treated, the court or magistrate shall issue the warrant
and set a time within 10 calendar days of the date of issuance for a

8
 hearing in the appropriate justice court or municipal court to determine
whether the animal has been cruelly treated.

(c) The officer executing the warrant shall cause the animal to be
impounded and shall give written notice to the owner of the animal of
the time and place of the hearing.

Id. § 821.022(b), (c). Section 821.023 provides guidance for chapter 821 hearings

and the resulting orders. In relevant part, section 821.023 provides:

(d) If the court finds that the animal’s owner has cruelly treated the
animal, the owner shall be divested of ownership of the animal, and the
court shall:

(1) order a public sale of the animal by auction;

(2) order the animal given to a municipal or county animal shelter
or a nonprofit animal welfare organization; or

(3) order the animal humanely destroyed if the court decides that
the best interests of the animal or that the public health and safety
would be served by doing so.

(e) After a court finds that an animal’s owner has cruelly treated the
animal, the court shall order the owner to pay all court costs, including:

(1) the administrative costs of:

(A) investigation;

(B) expert witnesses; and

(C) conducting any public sale ordered by the court; and

(2) the costs incurred by a municipal or county animal shelter or
a nonprofit animal welfare organization in:

(A) housing and caring for the animal during its
impoundment; and

9
 (B) humanely destroying the animal if destruction is
ordered by the court.

Id. § 821.023(d), (e). Section 821.023(g) states, “The court shall order the animal

returned to the owner if the court does not find that the animal’s owner has cruelly

treated the animal.” Id. § 821.023(g).

In its live pleading,2 TBAR cites section 821.023(d) and (e) to support its

assertion that the justice court’s orders found that Digilio had cruelly treated all 34

horses and, thus, required that she be divested of all 34 horses and ordered to pay

TBAR’s full costs. Relevant here, TBAR sought declaratory judgment that the

justice court’s September 2 Order is void to the extent it is inconsistent with Health

and Safety Code sections 821.023(d) (requiring divesture of horses if the court finds

the owner treated animal cruelly) and 821.023(e)(2)(A) (requiring award of costs,

including costs associated with housing and caring for the animal during its

impoundment) and also that the justice court’s October 3 Supplemental Order was

void “in its entirety because it is outside the plenary power of that court.” TBAR

asked the trial court to award it ownership of all 34 horses and to require Digilio to

pay $230,900.09 “for all of its costs for housing and caring for the horses during

2
TBAR’s live pleading included counterclaims against Digilio to recover the costs it
incurred in caring for and housing the horses under theories of quantum meruit,
unjust enrichment, and a stable keeper’s lien under Texas Property Code section
70.003. TBAR non-suited these claims following the trial court’s granting of
Digilio’s summary judgment on TBAR’s declaratory judgment claims, and they are
not before us in this appeal.

10
their impoundment because [Digilio] was found to have cruelly treated all 34

horses.”

TBAR also sought a temporary restraining order and a temporary injunction.

The trial court granted the TRO; but, following a hearing, it denied TBAR’s request

for a temporary injunction against Waller County, prohibiting the enforcement of

the justice court’s judgment. TBAR filed an interlocutory appeal of the trial court’s

denial of the temporary injunction, and this Court affirmed the trial court’s denial.

See True Blue Animal Rescue, Inc. v. Waller County, No. 01-16-00967-CV, 2017

WL 1434273, at *3 (Tex. App.—Houston [1st Dist.] Apr. 20, 2017, no pet.) (mem.

op.).

Meanwhile, Digilio intervened in TBAR’s suit against Waller County in the

trial court, asserting causes of action, including conversion and tortious interference,

and requesting injunctive relief to require TBAR to return the seven horses given to

her in the October 3, 2016 Supplemental Order based on her Agreement with the

WCDAO. She alleged that TBAR wrongfully exercised control over her seven

horses, that it tortiously interfered with her Agreement with the WCDAO that

formed the basis of the justice court’s judgment, and that it should be enjoined from

withholding the horses from her.

In addition, TBAR transferred the $30,000 that Digilio had paid in connection

with the justice court’s orders into the trial court’s registry. TBAR asserted that it

11
deposited the funds because it wanted to make clear that it would not accept the

$30,000 as satisfaction of its claims against Digilio.

On January 6, 2017, while the underlying case (including the interlocutory

appeal of the trial court’s denial of a temporary injunction) was pending, the trial

court dismissed the criminal case against Digilio. The State claimed that it sought

dismissal of the criminal charges against Digilio due to “State’s witness credibility

concerns.” Following the dismissal of the criminal case in January and this Court’s

resolution of the interlocutory appeal in April 2017, TBAR nonsuited its claims

against Waller County and moved for summary judgment against Digilio. In two

motions for summary judgment, one in May 2017 and the other in December 2017,

TBAR moved for summary judgment on its own claims for declaratory judgment,

but the trial court denied these motions.

In parallel proceedings, a separate suit between Digilio and her neighbors,

including Christin McCumber, was working its way through the courts. The trial

court resolved the McCumber case against Digilio and rendered judgment in favor

of the McCumber parties. The trial court signed an order granting turnover and

appointing a receiver to satisfy the judgment in the McCumber case. The receiver

determined that the seven horses awarded to Digilio by the justice court were

12
personal property subject to the turnover order and asked TBAR to continue housing

the horses while the underlying dispute regarding their ownership was pending.3

On April 6, 2018, Digilio filed a traditional and no-evidence motion for partial

summary judgment asking the trial court to deny TBAR’s claims for declaratory

judgment. Digilio argued that TBAR was not entitled to declaratory judgment and

that the justice court’s orders were not void. The trial court granted Digilio’s motion

and signed an order dismissing TBAR’s claims for declaratory relief.

On October 5, 2018, TBAR filed its own traditional and no-evidence motion

for summary judgment. TBAR’s motion asked the trial court to render judgment that

Digilio take nothing from TBAR on Digilio’s claims for conversion, tortious

interference, and injunctive relief. The trial court granted TBAR’s motion and

ordered that Digilio take nothing on each of her claims against TBAR.

The trial court subsequently rendered its final judgment, and this appeal

followed.

Summary Judgments

The trial court resolved this case by rendering summary judgment on both

TBAR’s and Digilio’s claims. Both parties now challenge the trial court’s motions

for summary judgment.

3
The receiver also paid TBAR $8,000 on Digilio’s behalf for the boarding and care
of the horses during the underlying litigation. This amount was also deposited into
the registry of the court.
13
 A party seeking summary judgment may combine in a single motion a request

for summary judgment under both the no-evidence and the traditional standards.

Binur v. Jacobo, 135 S.W.3d 646, 650–51 (Tex. 2004).

To prevail on a no-evidence summary-judgment motion, the movant must

establish that there is no evidence to support an essential element of the non-

movant’s claim on which the non-movant would have the burden of proof at trial.

See TEX. R. CIV. P. 166a(i); Hahn v. Love, 321 S.W.3d 517, 523–24 (Tex. App.—

Houston [1st Dist.] 2009, pet. denied). The burden then shifts to the non-movant to

present evidence raising a genuine issue of material fact as to each of the elements

challenged in the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.

2006). A no-evidence summary judgment may not be granted if the non-movant

brings forth more than a scintilla of evidence to raise a genuine issue of material fact

on the challenged elements. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600

(Tex. 2004). More than a scintilla of evidence exists when reasonable and fair-

minded individuals could differ in their conclusions. King Ranch, Inc. v. Chapman,

118 S.W.3d 742, 751 (Tex. 2003).

To prevail on a traditional summary judgment motion, the movant bears the

burden of proving that no genuine issues of material fact exist and that it is entitled

to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Mann Frankfort Stein &

Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). A matter is

14
conclusively established if reasonable people could not differ as to the conclusion to

be drawn from the evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex.

2005); Cleveland v. Taylor, 397 S.W.3d 683, 697 (Tex. App.—Houston [1st Dist.]

2012, pet. denied).

Therefore, when a defendant moves for a traditional summary judgment, it

must either: (1) disprove at least one essential element of the plaintiff’s cause of

action, or (2) plead and conclusively establish each essential element of an

affirmative defense, thereby defeating the plaintiff’s cause of action. See Cathey v.

Booth, 900 S.W.2d 339, 341 (Tex. 1995). Once the movant meets its burden, the

burden shifts to the non-movant to raise a genuine issue of material fact precluding

summary judgment. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).

The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could

differ in their conclusions in light of all of the summary-judgment evidence.

Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).

To determine if the nonmovant raised a fact issue, we review the evidence in

the light most favorable to the nonmovant, crediting favorable evidence if reasonable

jurors could, and disregarding contrary evidence unless reasonable jurors could not.

Fielding, 289 S.W.3d at 848 (citing City of Keller, 168 S.W.3d at 827); Cleveland,

397 S.W.3d at 697. We indulge every reasonable inference and resolve any doubts

in the nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661

15
(Tex. 2005); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002) (citing

Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997)); Cleveland, 397

S.W.3d at 697. A genuine issue of material fact is raised when the nonmovant

produces more than a scintilla of evidence regarding the challenged element. Neely

v. Wilson, 418 S.W.3d 52, 59 (Tex. 2013).

If a trial court grants summary judgment without specifying the grounds for

granting the motion, we must uphold the trial court’s judgment if any of the asserted

grounds are meritorious. Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex.

App.—Houston [1st Dist.] 2005, pet. denied).

TBAR’s Appeal

TBAR sought a declaration that the justice court’s October 3, 2016

Supplemental Order was void because it was rendered outside the court’s plenary

power. TBAR also sought a declaration that the justice court’s September 2, 2016

Order and the Agreement between the WCDAO and Digilio, which was filed and

signed by the justice court on September 19, 2016, were void to the extent that they

(1) were inconsistent with Health and Safety Code sections 821.023(d) and

821.003(e)(2)(A); (2) awarded horses back to Digilio that she had treated cruelly;

and (3) failed to award TBAR all of the horses and all of its $232,900.09 in costs for

the care and housing of the impounded horses.

16
 On appeal, TBAR argues that the trial court erred in granting summary

judgment denying the requested declaratory relief. It continues to assert that the

justice court’s orders were void, in whole or in part, and that its collateral attack on

the justice court’s orders by filing this declaratory judgment suit is the proper

procedural vehicle for attacking the justice court’s judgment.

A. Justice Court’s Orders

To address TBAR’s arguments on appeal, we must first examine the justice

court’s jurisdiction to render the orders that comprise its judgment in the divestiture

proceeding. The Texas Constitution provides that the justice courts’ jurisdiction

includes “such other jurisdiction as may be provided by law.” TEX. CONST. art. V, §

19; see also TEX. GOV’T CODE § 27.031 (setting out current jurisdiction of justice

courts). Pursuant to this constitutional authority, the legislature passed Health and

Safety Code chapter 821 to provide justice courts with special and limited

jurisdiction over actions alleging cruel treatment of animals. See TEX. HEALTH &

SAFETY CODE §§ 821.022–.025; Chambers v. State, 261 S.W.3d 755, 759 (Tex.

App.—Dallas 2008, pet. denied); Pitts v. State, 918 S.W.2d 4, 4 (Tex. App—

Houston [14th Dist.] 1995, no writ); see also Granger v. Folk, 931 S.W.2d 390, 392

(Tex. App.—Beaumont 1996, orig. proceeding) (recognizing that “two avenues exist

for the State in protecting animals from cruel treatment, i.e., criminal prosecution

under . . . the Penal Code and the civil remedy provided under Section 821.023 of

17
the Health and Safety Code”). It is undisputed that the justice court had jurisdiction

over the divestiture proceedings that TBAR now attacks.

TBAR first asserts that the justice court’s October 3 Supplemental Order was

rendered after the court’s plenary power had expired. Under Texas Rule of Civil

Procedure 507.1, a justice court “loses plenary power over a case when an appeal is

perfected or if no appeal is perfected, 21 days after the later of the date judgment is

signed or the date a motion to set aside, motion to reinstate, or motion for new trial,

if any is denied.” TEX. R. CIV. P. 507.1. Furthermore, Rule 500.02(o) defines

“judgment” as “a final order by the court that states the relief, if any, a party is

entitled to or must provide.” TEX. R. CIV. P. 500.2(o).

To determine whether the justice court signed its October 3 Supplemental

Order outside of its plenary power, we examine all the orders rendered by the justice

court in the divestiture proceeding. On September 2, 2016, rather than holding a

divestiture hearing pursuant to chapter 821, the justice court signed an order based

on the agreement reached by the WCDAO and Digilio. The September 2 Order

contained findings that Digilio was the owner of 34 horses that had been seized and

that Digilio treated the animals cruelly “by improperly caring for the horses and

maintaining too many horses on her property.” The September 2 Order provided that

Digilio “be divested of ownership of . . . 27 horses including three sold prior to

seizure.”

18
 The September 2 Order awarded ownership of 24 horses to TBAR, ordered

that the three horses purchased by a third party be “returned to their owners,” and

ordered that seven of the horses be returned to Digilio. The September 2 Order did

not identify which 24 out of the 34 seized horses should be awarded to TBAR, which

7 of the 34 horses should be returned to Digilio, or which 3 horses belonged to a

third party beyond identifying the horse known as “Flyer” as one of these three.

Nor did the September 2 Order award any costs. The justice court found in the

September 2 Order “that the estimated costs likely to be incurred to house and care

for the impounded animals during the appeal process is $30,000” and thus ordered

that “the amount of the bond necessary to perfect an appeal is $30,000.” The order

did not include any language of finality. Instead, the September 2 Order expressly

stated, “[S]ee court order and agreement reflected and entered by the parties.”

Seventeen days later, on September 19, 2016, the justice court signed the

“Agreement of Kathie Digilio and the Waller County District Attorney’s Office”

that was referenced in the September 2 Order. This document stated: “This

agreement is a reflection of the agreement and court order entered in the Honorable

Court on September 2, 2016 and is adopted by the Court as the final and binding

court order in this case.” The Agreement set out the specific terms Digilio was

required to satisfy in order to obtain the return of seven horses, including how the

19
parties were to determine which horses would be awarded to which parties and the

amount of restitution to be paid to TBAR.

Fourteen days later, the justice court signed its October 3 Supplemental Order,

which stated that the supplemental order “shall supersede and take the place of the

previous Court Order entered and filed on September 2, 2016 thereby making this

the final order on this case.” In this order, the justice court omitted any finding

regarding cruel treatment of the seven horses returned to Digilio or the three horses

bought by Kolz, the third-party buyer. Regarding the remaining 24 horses—the ones

awarded to TBAR—the justice court found they “were subject to unintentional

mistreatment and are awarded to True Blue Animal Rescue pursuant to an agreement

entered into between the State of Texas [as represented by the WCDAO] and the

defense [Digilio] and that these horses are the personal property of [TBAR].”

TBAR’s assertion that this October 3 Supplemental Order was signed outside

the justice court’s plenary power assumes that the September 2 Order was the final

order of the justice court. The record does not support this assumption. A judgment

rendered without a conventional trial on the merits is final if it disposes of all pending

parties and claims in the record. See Lehmann v. Har–Con Corp., 39 S.W.3d 191,

192–93, 195 (Tex. 2001); see also TEX. R. CIV. P. 500.2(o) (defining “judgment” in

justice court proceedings as “a final order by the court that states the relief, if any, a

party is entitled to or must provide.”). Whether a judicial decree is a final judgment

20
must be determined from its language and the record in the case. Lehmann, 39

S.W.3d at 192.

The September 2 Order did not satisfy Lehmann’s finality requirement. For

example, it did not award any costs or identify the specific horses to be awarded to

the various interested parties. The September 2 Order did not contain finality

language, and, instead, expressly referenced the “court order and agreement

reflected and entered by the parties.” See id. at 200 (observing that “the language of

an order or judgment can make it final . . . if that language expressly disposes of all

claims and all parties” and that “[t]he intent to finally dispose of the case must be

unequivocally expressed in the words of the order itself”). The justice court signed

the referenced “court order and agreement” on September 19, 2016, which is 17 days

later. The Agreement provided the details of Digilio’s arrangement with the

WCDAO regarding disposition of all 34 seized horses, and it expressly provided,

“This agreement is a reflection of the agreement and court order entered in the

Honorable Court on September 2, 2016 and is adopted by the Court as the final and

binding court order in this case.” (Emphasis added.) Thus, based on the language of

the orders themselves and the record in this case, we determine that the September

21
19 agreement and order was the final order, not the September 2 Order.4 See id.; see

also TEX. R. CIV. P. 500.2(o).

The October 3 Supplemental Order was signed within 14 days after the justice

court’s adoption of the Agreement as its “final and binding order” resolving the

divestiture proceedings. Thus, the October 3 Supplemental Order was rendered

while the justice court still had plenary power. See TEX. R. CIV. P. 507.1 (providing

that justice court loses plenary power 21 days after later of date judgment is signed

or date motion to set aside, motion to reinstate, or motion for new trial, if any is

denied).

Accordingly, we overrule TBAR’s contention that the October 3

Supplemental Order was rendered outside the justice court’s plenary power.

B. Collateral Attack

TBAR’s underlying suit seeking a declaratory judgment that the justice

court’s orders in this case were void constitutes a collateral attack. Digilio moved

for summary judgment on TBAR’s declaratory judgment claims, asserting in

relevant part, that the collateral attack was improper because the justice court’s

4
Even if the September 2 Order could be considered a final order, we note that the
September 19 Agreement was adopted by the justice court as an order and signed
within 21 days; therefore, was a new judgment signed within the justice court’s
original plenary power. See TEX. R. CIV. P. 507.1
22
orders were final and TBAR lacked standing to challenge the justice court’s

judgment.

“A collateral attack is an attempt to avoid the binding force of a judgment in

a proceeding not instituted for the purpose of correcting, modifying, or vacating the

judgment, but in order to obtain some specific relief which the judgment currently

stands as a bar against.” Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005); see

PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 272 (Tex. 2012) (“A collateral attack

seeks to avoid the binding effect of a judgment in order to obtain specific relief that

the judgment currently impedes.”). Collateral attacks on final judgments are

generally not allowed because policy favors finality of court judgments. Browning,

165 S.W.3d at 345; Chambers, 261 S.W.3d at 758.

“Only a void judgment may be collaterally attacked.” Browning, 165 S.W.3d

at 346. “A judgment is void only when it is apparent that the court rendering

judgment had no jurisdiction of the parties or property, no jurisdiction of the subject

matter, no jurisdiction to enter the particular judgment, or no capacity to act.”

Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 863 (Tex. 2010) (citing Browning,

165 S.W.3d at 346); see Rivera, 379 S.W.3d at 272. A void order is subject to

collateral attack in a new lawsuit, while a voidable order must be corrected by direct

attack; unless successfully attacked, a voidable judgment becomes final. Joachim,

315 S.W.3d at 863.

23
 TBAR argues that the justice court’s October 3 Supplemental Order is void

because it was signed outside the court’s plenary power. As we stated above, this

argument lacks merit. In analyzing TBAR’s collateral attack, we examine the justice

court’s judgment as including the supplemental order. The justice court thus had

jurisdiction over the parties and property, jurisdiction over the subject matter, and

capacity to act. See Joachim, 315 S.W.3d at 863.

TBAR further asserts that the justice court lacked jurisdiction to enter the

particular judgment it entered here, basing its argument on the justice court’s alleged

failure to comply with the provisions of Health and Safety Code subsections

821.023(d) and (e)(2)(A). These provisions require that, “[i]f the court finds that the

animal’s owner has cruelly treated the animal, the owner shall be divested of

ownership of the animal,” and that “[a]fter a court finds that an animal’s owner has

cruelly treated the animal, the court shall order the owner to pay all court costs,”

including “the costs incurred by . . . a nonprofit animal welfare organization in . . .

housing and caring for the animal during its impoundment.” TEX. HEALTH & SAFETY

CODE § 821.023(d), (e)(2)(A).

Contrary to TBAR’s assertions, the justice court’s judgment does not reflect

a failure to comply with the requirements of section 821.023. The justice court

found, in its October 3 Supplemental Order, that the 24 horses awarded to TBAR

“were subject to unintentional mistreatment by Digilio,” but it made no findings

24
regarding the treatment of the other 10 horses. Thus, there is no finding that Digilio

cruelly treated the horses that are the subject of this suit, and the statutory language

requiring that she be divested of those horses and required to pay the enumerated

court costs was not triggered. See TEX. HEALTH & SAFETY CODE § 821.023(d)

(requiring divestiture “if” court finds owner treated animal cruelly); id.

§ 821.023(e)(2)(A) (requiring award of costs, including cost of housing and caring

for animal during impoundment, “after” court finds animal’s owner treated it

cruelly).

Even if the record demonstrated the justice court’s failure to properly apply

the provisions of chapter 821—a conclusion we do not make here—TBAR has

provided no authority indicating that the requirements of section 821.023(d) and

(e)(2)(A) are jurisdictional such that misapplying them would render the justice

court’s judgment void. Mandatory statutory duties are not necessarily jurisdictional.

In re Brehmer, 428 S.W.3d 920, 922 (Tex. App.—Fort Worth 2014, orig.

proceeding) (citing Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 494 (Tex. 2001)).

Absent clear legislative intent, we resist classifying a statutory provision as

jurisdictional. Id. (citing City of DeSoto v. White, 288 S.W.3d 389, 393 (Tex. 2009)).

None of the language in subsections 821.023(d) or (e) indicates that a justice court

loses jurisdiction over the animal cruelty matter by misapplying the statutory

provisions. See TEX. HEALTH & SAFETY CODE § 821.023; see id. § 821.025

25
(providing that owner may appeal justice court’s divestiture order to county court or

county court at law and that decision of county court or county court at law is final

and may not be further appealed); cf. In re Brehmer, 428 S.W.3d at 922–23

(determining that chapter 821’s statutory deadlines are not jurisdictional).

Furthermore, Digilio asserts that, because TBAR was not a party to the justice

court’s judgment, TBAR cannot now collaterally attack that judgment. While it is

well-established that an individual who is not a party to a final judgment generally

lacks standing to collaterally attack the judgment, there is an exception for

individuals who can establish that their interests are directly and necessarily affected

by the judgment itself. See In re Ocegueda, 304 S.W.3d 576, 580–81 (Tex. App.—

El Paso 2010, pet. denied); Grynberg v. Christiansen, 727 S.W.2d 665, 666 (Tex.

App.—Dallas 1987, no writ); see also Kingman Holdings, LLC v. Mortg. Elec.

Registration Sys., Inc., No. 05-15-01353-CV, 2016 WL 8115937, at *5 (Tex. App.—

Dallas Oct. 27, 2016, no pet.) (mem. op.) (“A nonparty can collaterally attack an

existing judgment if the judgment directly and necessarily affects the nonparty’s

rights.”). Having an “interest affected by the judgment” means having an interest in

the subject matter to which the judgment relates. Caballero v. Vig, 600 S.W.3d 452,

459 (Tex. App.—El Paso 2020, pet. denied) (citing Grynberg, 727 S.W.2d at 667).

“Conversely, having only a tangential or indirect interest in the judgment is

26
insufficient to bestow standing upon a non-party for purposes of allowing a collateral

attack on the judgment.” Id.

TBAR asserts that it has standing to collaterally attack the judgment because

its interests were directly and necessarily affected by the justice court’s judgment.

We disagree. TBAR’s interest in the horses is tangential or indirect and flows only

from its involvement with the WCDAO. See id. Nothing in the justice court’s

judgment bound TBAR—it was not required to accept ownership of the horses nor

payment for the non-profit services it had provided to the county—and nothing in

the justice court’s judgment stands as a bar against the relief that TBAR seeks. See

Browning, 165 S.W.3d at 346. Rather, the justice court’s judgment resolved the

dispute between Digilio and WCDAO.

Finally, we observe that the fact that TBAR was potentially harmed by the

justice court’s application of subsections 821.023(d) and (e) does not automatically

give rise to a private cause of action in favor of TBAR that could have been impacted

or barred by the justice court’s judgment. See, e.g., Witkowski v. Brian, Fooshee and

Yonge Props., 181 S.W.3d 824, 831 (Tex. App.—Dallas 2005, no pet.) (discussing

statutory enforcement schemes and holding that courts apply “strict rule of

construction” and “imply causes of action only when the drafters’ intent is clearly

expressed from the language as written”; observing that “a right of enforcement

should not be implied simply because the statute ‘fails to adequately protect intended

27
beneficiaries’”) (quoting Brown v. Arturo De La Cruz, 156 S.W.3d 560, 567 (Tex.

2004).

Accordingly, TBAR’s attempt to relitigate the merits of issues tried in the

justice court constitute an impermissible collateral attack on the justice court’s

judgment. See Chambers, 261 S.W.3d at 759 (citing Tesco Am., Inc. v. Strong Indus.,

Inc., 221 S.W.3d 550, 556 & n.31 (Tex. 2006) and Browning, 165 S.W.3d at 346);

see also Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003) (“In general, as long as the

court entering a judgment has jurisdiction of the parties and the subject matter and

does not act outside its capacity as a court, the judgment is not void.”). “Errors other

than lack of jurisdiction, such as ‘a court’s action contrary to a statute or statutory

equivalent,’ merely render the judgment voidable so that it may be ‘corrected

through the ordinary appellate process or other proper proceedings.’” Reiss, 118

S.W.3d at 443. Here, TBAR never intervened in the justice court and, as a non-party

to the justice court’s judgment, it could not pursue a direct appeal to correct errors

that rendered the judgment only “voidable.” See TEX. HEALTH & SAFETY CODE §

821.025 (procedures for appeal by owner who has been divested of ownership of

animal). TBAR further non-suited its other claims for affirmative relief against

Digilio, including its claims under theories of quantum meruit, unjust enrichment,

and a stable-keeper’s lien, leaving only its collateral attack seeking a declaratory

judgment voiding the justice court’s judgment pending before us.

28
 The only claims before this Court on appeal are TBAR’s collateral attack

seeking a declaratory judgment that portions of the justice court’s judgment are void.

As set out above, TBAR is not entitled to collaterally attack the justice court’s

judgment because, as a matter of law, the justice court’s judgment is not void. So,

TBAR’s collateral attack on it fails. See Rivera, 379 S.W.3d at 271 (“It is well settled

that a litigant may attack a void judgment directly or collaterally, but a voidable

judgment may only be attacked directly.”). We conclude that the trial court did not

err in granting Digilio’s motion for summary judgment on this ground.5

We overrule TBAR’s complaints on appeal and affirm the trial court’s

judgment denying TBAR’s claims for declaratory relief from the justice court’s

judgment.

Digilio’s Appeal

In her sole issue on appeal, Digilio challenges the trial court’s grant of

summary judgment in favor of TBAR, ordering that Digilio take nothing on her

claims for conversion, tortious interference with a contract, and injunctive relief.

The elements of a conversion claim are (1) the plaintiff owned or had

possession of the property or entitlement to possession; (2) the defendant unlawfully

and without authorization assumed and exercised control over the property to the

5
Because this ground supports the trial court’s judgment, we need not address the
remaining arguments of the parties.
29
exclusion of, or inconsistent with, the plaintiff’s rights as an owner; (3) the plaintiff

demanded return of the property; and (4) the defendant refused to return the property.

Universal Plant Servs., Inc. v. Dresser-Rand Grp., Inc., 571 S.W.3d 346, 363 (Tex.

App.—Houston [1st Dist.] 2018, no pet.). A “plaintiff must prove damages before

recovery is allowed for conversion.” See United Mobile Networks, L.P. v. Deaton,

939 S.W.2d 146, 147 (Tex. 1997) (per curiam); Alan Reuber Chevrolet, Inc. v. Grady

Chevrolet, Ltd., 287 S.W.3d 877, 889 (Tex. App.—Dallas 2009, no pet.). The

elements of tortious interference with a contract are (1) an existing contract subject

to interference; (2) a willful and intentional act of interference with the contract; (3)

that proximately caused the plaintiff’s injury; and (4) caused actual damages or loss.

Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000).

Thus, both of these causes of action require evidence of damages in order for a

plaintiff to recover. See id.; Deaton, 939 S.W.2d at 147.

Relevant here, TBAR moved for no-evidence summary judgment against

Digilio on her claims for conversion and tortious interference. TBAR asserted that

Digilio provided no evidence of her damages flowing from TBAR’s purported acts

interfering with her ownership of the seven horses that Digilio was awarded by the

justice court. Thus, the burden shifted to Digilio to present evidence raising a

genuine issue of material fact as to this element challenged in TBAR’s motion. See

Tex. R. Civ. P. 166a(i); Mack Trucks, Inc., 206 S.W.3d at 582.

30
 In her response, Digilio asserted that TBAR “was placed on notice” of her

claims prior to the appointment of the receiver in the McCumber case, that “every

entity involved in this case,” including the WCDAO and justice court, “contends

Digilio’s seven (7) horse[s] should be returned to Digilio [rather] than to [TBAR],”

and that there was no finding that she treated those seven horses cruelly. She also

pointed to the trial court’s previous summary judgment rulings, denying TBAR

affirmative relief on its own declaratory judgment claims and this Court’s judgment

affirming the trial court’s denial of TBAR’s temporary injunction against Waller

County. However, Digilio did not provide any evidence of harm that she suffered as

a result of TBAR’s alleged conversion or tortious interference.

On appeal, Digilio continues to assert these same arguments. She now argues

that TBAR was placed on actual notice of her property interests and of her superior

rights to the horses. She points to the trial court’s prior denials of summary judgment

on TBAR’s own motions seeking declaratory judgments as a matter of law and to

this Court’s opinion affirming the trial court’s denial of a temporary injunction

against Waller County. Digilio also argues that section 821.023(d) does not apply to

the horses awarded to her, that the justice court’s October 3 Supplemental Order is

final, and that TBAR lacks standing to challenge the justice court’s orders.

Digilio asserts in a conclusory fashion that she raised fact issues concerning

her affirmative claims for relief, but she has not pointed us to any evidence in the

31
record that demonstrates harm caused to her by TBAR’s purported conversion or

tortious interference. TBAR argues that she cannot point to any such evidence in

light of the other legal proceedings that prevented Digilio from exercising clear

ownership of the seven horses. TBAR specifically referenced the underlying dispute

regarding ownership of the horses—which involved an interlocutory appeal of a

temporary injunction preventing enforcement of the justice court’s judgment and

extensive litigation—and the receiver’s action in the McCumber case, finding that

the horses were subject to turnover and requesting that TBAR keep them until the

ownership dispute could be resolved. We agree with TBAR.

Accordingly, because Digilio has failed to provide a scintilla of evidence on

an essential element of her conversion and tortious interference claims, we conclude

that the trial court properly granted TBAR’s no-evidence motion for summary

judgment. See TEX. R. CIV. P. 166a(i) (providing that “[t]he court must grant the

motion unless the respondent produces summary judgment evidence raising a

genuine issue of material fact” on challenged elements); see, e.g., Prudential Ins.

Co. of Am., 29 S.W.3d at 77 (damages are element of tortious interference claim);

Deaton, 939 S.W.2d at 147 (plaintiff must prove damages to recover for conversion).

We likewise conclude that, because she cannot recover on her pleaded claims

for conversion or tortious interference, Digilio’s claim for injunctive relief likewise

fails. Injunctive relief is available only if liability is established under a cause of

32
action. See Valenzuela v. Aquino, 853 S.W.2d 512, 514 n.2 (Tex. 1993); Cooper v.

Litton Loan Servicing, LP, 325 S.W.3d 766, 769 (Tex. App.—Dallas 2010, pet.

denied). We have held that summary judgment was proper on Digilio’s claims for

conversion and tortious interference; thus, her injunctive-relief remedy likewise

fails. See Etan Indus., Inc. v. Lehmann, 359 S.W.3d 620, 625 n.2 (Tex. 2011) (per

curiam). Summary judgment on this ground was also proper. See Tex. R. Civ. P.

166a(i).6

We overrule Digilio’s complaints on appeal and affirm the trial court’s take-

nothing judgment on her claims against TBAR.

Conclusion

We affirm the judgment of the trial court.

Richard Hightower
Justice

Panel consists of Justices Goodman, Landau, and Hightower.

6
Because we conclude that this ground supports the trial court’s judgment, we need
not address the remaining complaints raised by the parties. See Beverick v. Koch
Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005, pet.
denied).
33