





NUMBER 13-08-474-CV


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG 

 

IN RE: GENERAL MOTORS ACCEPTANCE CORPORATION

 


On Petition for Writ of Mandamus

 

MEMORANDUM OPINION


Before Chief Justice Valdez and Justices Yañez and Benavides

Memorandum Opinion (1) by Justice Yañez

	Through a petition for writ of mandamus, relator, General Motors Acceptance
Corporation ("GMAC"), attacks an order granting final judgment against it in a garnishment
proceeding.  As explained herein, we conditionally grant the writ.  
I. Background

	Eloy Sepulveda brought a suit against GMAC for the alleged wrongful repossession
of a vehicle in trial court Cause No. CL-07-3041-A in the County Court at Law No. 1 of
Hidalgo County, Texas.  On October 22, 2007, the Honorable Rudy Gonzalez of that court
rendered a default judgment against GMAC.  On January 18, 2008, GMAC appealed that
judgment. (2)  On January 22, GMAC filed a supersedeas bond with Motors Insurance
Corporation as surety.  On January 25, Sepulveda filed a motion to review the sufficiency
of the surety on the bond.  Judge Gonzalez denied Sepulveda's motion on January 30,
2008.
	Meanwhile, in a separate court action, on January 17, Sepulveda filed an application
for writ of garnishment against GMAC from GMAC's bank, JPMorgan Chase, N.A.
("JPMorgan").  Instead of filing this writ of garnishment in County Court at Law No. 1, as
is mandatory, Sepulveda filed this application for writ of garnishment in a different court,
County Court at Law No. 6, in trial court Cause No. 08-0116-F.  GMAC responded to the
application and filed multiple motions to quash the application.  On May 30, 2008, the
Honorable Albert Garcia granted GMAC's motions and quashed the writ.
	Sepulveda filed a motion for rehearing which was heard by the Honorable Arnold
Cantu, the presiding judge of County Court at Law No. 5, who sat in for Judge Garcia.  On
July 16, 2008, Judge Cantu vacated the May 30 order quashing the writ or garnishment
and concluded that "judgment [had] not been superseded by the posting of a valid
supersedeas bond."  Judge Cantu ordered that Sepulveda recover the amount of the
judgment from JPMorgan, plus interest, and ordered GMAC to pay JPMorgan's attorney's
fees.
	GMAC filed this petition for writ of mandamus and a motion for emergency relief on
August 8, 2008.  That same day, this Court granted relator's request for emergency relief
and stayed execution and enforcement of the underlying judgment in Cause No. CL-3041-A until further order of this Court.  The Court further requested and received a response
from Sepulveda, the real party in interest, and has further received an amicus curiae brief
filed by JPMorgan. (3)
	GMAC attacks the judgment of garnishment through five issues.  GMAC contends: 
(1) County Court at Law No. 6 interfered with County Court at Law No. 1's continuing
jurisdiction to make decisions concerning the sufficiency of the surety on the bond; (2)
County Court at Law No. 6 did not have authority or jurisdiction to disregard the January
30 order that the supersedeas bond was sufficient; (3) County Court at Law No. 6
disregarded the mandate of Texas Rule of Appellate Procedure 24.1(f) that enforcement
of a judgment must be suspended if the judgment is superseded and that enforcement
begun before the judgment is superseded must cease when the judgment is superseded;
(4) the July 16 order is void because a garnishment proceeding can only be brought in the
court in which the original suit was brought; and (5) County Court at Law No. 6 abused its
discretion in issuing a writ of garnishment when relator filed a supersedeas bond to
suspend the underlying judgment.  Sepulveda contends generally that GMAC was
essentially "laying behind the log" and that it filed no pleadings challenging the jurisdiction
of County Court at Law No. 6, and "as a result such issues have been waived."   
II.  Mandamus

	To be entitled to mandamus relief, a petitioner must show that the trial court clearly
abused its discretion and that the relator has no adequate remedy by appeal.  In re
Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (citing Walker v. Packer,
827 S.W.2d 833, 840 (Tex. 1992)); see In re McAllen Med. Ctr., Inc., 51 Tex. Sup. Ct. J.,
1302, 2008 Tex. LEXIS 759, at *6 (Tex. Aug. 29, 2008) (orig. proceeding). 
	As a general rule, mandamus does not lie to review final judgments in garnishment
proceedings because such rulings are subject to appeal.  See, e.g., Holtzman v. Holtzman,
993 S.W.2d 729, 732 (Tex. App.-Texarkana 1999, no pet.); Varner v. Koons, 888 S.W.2d
511, 513 (Tex. App.-El Paso 1994, orig. proceeding). However, an appeal is an
inadequate remedy when one court issues an order that directly interferes with another
court's jurisdiction.  In re SWEPI, L.P., 85 S.W.3d 800, 809 (Tex. 2002) (orig. proceeding). 
Mandamus will also lie to correct a void order, that is, an order the trial court had no power
or jurisdiction to render.  See Urbish v. 127th Judicial Dist. Court, 708 S.W.2d 429, 431
(Tex. 1986) (orig. proceeding).  If an order is void, the relator need not show he lacks an
adequate appellate remedy, and mandamus relief is appropriate.  In re Sw. Bell Tel. Co.,
35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding).  Accordingly, we will proceed to
analyze this matter in terms of the applicable substantive law.
 III.  Waiver

	We first address Sepulveda's claims that GMAC failed to contest the jurisdiction of
County Court at Law No. 6 and thus its arguments herein have been waived.  In its written
pleadings, GMAC contended, inter alia, that it had posted a supersedeas bond in Cause
No. CL-07-3041-A in County Court at Law No. 1; Sepulveda had challenged the sufficiency
of the bond; the trial judge had approved the bond; and that it is a violation of the law to
collect a judgment when there is an adequately posted supersedeas, citing Texas Rule of
Appellate Procedure 24.1(f).  At hearings, counsel expressly argued, on more than one
occasion, that County Court at Law No. 6 did not have "jurisdiction" to hear the
garnishment proceeding.  Accordingly, contrary to Sepulveda's arguments, GMAC
adequately objected to County Court at Law No. 6's exercise of jurisdiction over the
garnishment proceeding.  Moreover, even if GMAC had failed to preserve this issue, we
note that "[s]ubject matter jurisdiction . . . may not be waived by the parties."  Tex. Ass'n
of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993); see Austin Nursing Ctr.,
Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex. 2005).
IV.  Analysis

	As a general rule, the right to supersede a judgment is absolute and is not a matter
within the trial court's discretion.  Ex parte Kimbrough, 135 Tex. 624, 146 S.W.2d 371, 372
(Tex. 1941); In re Tarrant County, 16 S.W.3d 914, 918 (Tex. App.-Fort Worth 2000, orig.
proceeding); see Tex. R. App. P. 24.1(a) (allowing a judgment to be superseded "[u]nless
the law or these rules provide otherwise").  When a judgment is superseded, its provisions
are suspended and cannot be enforced pending the appeal. Kimbrough, 146 S.W.2d at
372; see Tex. R. App. P. 24.1(f).  Further, "[e]nforcement begun before the judgment is
superseded must cease when the judgment is superseded."  Tex. R. App. P. 24.1(f). 
	Filing a notice of appeal alone, however, does not suspend enforcement of the
judgment.  See id. 25.1(g).  To suspend enforcement of a judgment pending appeal, a
judgment debtor may supersede the judgment by: (1) filing with the trial court clerk a written
agreement with the judgment creditor for suspending enforcement of the judgment; (2)
filing with the trial court clerk a good and sufficient bond; (3) making a deposit with the trial
court clerk in lieu of a bond; or (4) providing alternate security ordered by the court.  See
id. 24.1(a). 
	The appellate rules vest the trial court with authority and jurisdiction to determine
issues pertaining to superseding a judgment.  See generally id. 24; In re Kajima Int'l Inc.,
139 S.W.3d 107, 111 (Tex. App.-Corpus Christi 2004, orig. proceeding).  While the appeal
is pending, the trial court has the continuing jurisdiction to (1) order the amount and type
of security and decide the sufficiency of the sureties; and (2) if circumstances have
changed, modify the amount or type of security necessary to continue supersedeas.  Tex.
R. App. P. 24.3(a); Law Eng'g & Envtl. Servs., Inc. v. Slosburg Co., 100 S.W.3d 389, 390
(Tex. App.-Houston [1st Dist.] 2002, order); Hamilton v. Hi-Plains Truck Brokers, Inc., 23
S.W.3d 442, 443 (Tex. App.-Amarillo 2000, no pet.) (opinion on appellee's motion for
order increasing amount required to supersede judgment).  Review of a trial court's
exercise of discretion concerning suspension of enforcement is vested with the appellate
court having jurisdiction over the appeal.  See Tex. R. App. P. 24.4 (delineating scope of
review); Hamilton, 23 S.W.3d at 443 ("Before this Court can review the trial court's exercise
of discretion in ordering the amount of security, the record must demonstrate that a request
was presented to the trial court to decide the sufficiency of the bond and that the trial court
made a ruling thereon.").  
	In the instant case, Sepulveda attempted to enforce the judgment through a writ of
garnishment. (4)  Unlike a writ of execution, which requires a judgment creditor to wait thirty
days after the final judgment is signed or the overruling of a motion for new trial, a writ of
garnishment may issue at any time following the entry of a final judgment to obtain
judgment proceeds.  See Tex. R. Civ. P. 627, 657; Thompson v. Harco Nat'l Ins. Co., 997
S.W.2d 607, 612 (Tex. App.-Dallas 1998, pet. denied).  "It is well settled that the
jurisdiction in the trial court in proceedings of garnishment is that of the original suit."  King
& King v. Porter, 113 Tex. 198, 199, 252 S.W. 1022, 1022 (Tex. 1923).  In analyzing the 
proper appellate jurisdiction over a garnishment proceeding, the Texas Supreme Court
explained the nature of garnishment proceedings as follows:
	A garnishment proceeding is ancillary to and a part of the principal action,
and not only must it be brought in the court of the principal action, but when
brought after final judgment in the original suit, the court will take judicial
knowledge of such judgment.  Thus its justification and efficacy are grounded
in the original action. 

	The court in which the original suit was filed had already acquired jurisdiction
of the original parties and of the subject matter of that suit, (upon which the
garnishment depends), and of all processes for enforcing its judgment
thereon. The garnishment proceeding is  ancillary to and a part of the original
suit, and the court in that suit having acquired jurisdiction of the subject
matter for all purposes, including the enforcement of its judgment, it
necessarily follows that its jurisdiction extends to all issues raised in the
enforcement of that judgment, and that its jurisdiction controls the appellate
jurisdiction of such issues on appeal. 

	The jurisdiction of the Court of Civil Appeals in this case is based upon the
fact that the garnishment proceeding is only an incident to the original suit.
It is a part of the original suit, and jurisdiction, both of the trial court and of
the appellate court, is based upon the original suit as contemplated by the
statutes. 

	The garnishment proceeding could have been brought in no other court than
the one in which the original suit was brought.

Id.; see Baca v. Hoover, Bax & Shearer, 823 S.W.2d 734, 738 (Tex. App.-Houston [14th
Dist.] 1992, writ denied).
	After due consideration of the foregoing principles, we conclude that the County
Court at Law No. 6 erred in issuing the July 16 judgment allowing garnishment.  More
specifically, Judge Garcia was correct in granting GMAC's motions to quash the writ of
garnishment, and the substitute judge, who reached a contrary decision on rehearing, was
wrong.  
	While Sepulveda could clearly begin garnishment proceedings before GMAC
superseded the judgment, such proceedings were required to have been brought in "no
other court than the one in which the original suit was brought," that is, County Court at
Law No. 1.  See King & King, 252 S.W. at 1022.  To allow otherwise would be to enable
litigants to make an "end-run" around the trial court which has both jurisdiction and
discretion to make determinations regarding supersedeas.  In this regard, we note that this
Court has not been asked to review the propriety of the trial court's rulings regarding the
sufficiency or type of security or the sureties involved, and accordingly, we express no
opinion herein regarding such matters.  See Tex. R. App. P. 24.4(a).  
V.  Conclusion

	We conditionally grant the writ of mandamus and direct the presiding judge of
County Court at Law No. 6 to vacate the July 16, 2008 order granting Sepulveda's motion
for rehearing and granting final judgment, and to dismiss the garnishment proceeding.  We
are confident that the trial court will comply, and our writ will issue only if it does not.   

  
 LINDA REYNA YAÑEZ,
							Justice




Memorandum Opinion delivered and filed 
this the 3rd day of November, 2008.
1. See Tex. R. App. P. 52.8(d) ("When denying relief, the court may hand down an opinion but is not
required to do so."); Tex. R. App. P. 47.4 (distinguishing opinions and memorandum opinions).
2.  The appeal is currently pending in this Court as General Motors Acceptance Corporation v. Eloy
Sepulveda, No. 13-08-00055-CV.
3.  Relator, GMAC, has filed a pending motion to compel the filing of a reporter's record in this matter. 
The reporter's record has been filed, and accordingly, we dismiss this motion as moot.
4.  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.  See Tex. Civ. Prac. & Rem. Code Ann. § 63.001
(Vernon 2008); Tex. R. Civ. P. 657-79; Jamison v. Nat'l Loan Investors, L.P., 4 S.W.3d 465, 468 (Tex.
App.-Houston [1st Dist.] 1999, pet. denied). 
