                      COURT OF APPEALS
                      SECOND DISTRICT OF TEXAS
                           FORT WORTH


                           NO. 2-09-010-CV


LEASE FINANCE GROUP, LLC                                     APPELLANT

                                    V.

RANDY CHILDERS, ARLINGTON                                     APPELLEES
MOTOR CARS USA, AND JP
MORGAN CHASE BANK, N.A.

                                ------------

      FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY

                                ------------

                               OPINION

                                ------------

                             I. Introduction

     Appellant Lease Finance Group, LLC (“LFG”) appeals a judgment of

garnishment in favor of Appellees Randy Childers and Arlington Motor Cars
USA 1 against JP Morgan Chase Bank, N.A. (“Chase”). 2 LFG contends in three

issues that the trial court erred by denying LFG’s motion to set aside judgment

and for new trial. We reverse and remand.

                    II. Factual and Procedural Background

      AMC obtained a default judgment against LFG on May 2, 2008, in the

amount of $24,500. On September 12, 2008, AMC filed an application for

writ of garnishment naming Chase as garnishee and seeking to garnish funds

held by Chase for LFG. The trial court issued the writ on September 15, 2008,

and Chase was served with the writ on September 19, 2008. Chase filed its

original answer on October 7, 2008.        AMC and Chase then submitted an

“agreed” judgment of garnishment to the trial court that was signed by counsel

for AMC and Chase; the “agreed” judgment was not signed by LFG.

      The trial court signed the judgment of garnishment on October 10, 2008.

The judgment stated in the first paragraph:

      The Court, having found that Judgment-Defendant [LFG] has been
      properly served with a copy of the Writ of Garnishment in
      accordance with Rule 663a and has failed to answer or to
      otherwise enter an appearance in this garnishment suit, is of the



      1
       We will collectively refer to Appellees Childers and Arlington Motor
Cars USA as “AMC.”
      2
        Chase, the garnishee in the trial court, is an appellee in this case but
did not file a brief.

                                       2
      opinion that judgment should be rendered in accordance with the
      pleadings on file and as set forth herein.

      Unaware of the October 10 judgment of garnishment, LFG filed its

“Original Answer and Motion to Dissolve Writ of Garnishment” on October 24,

2008. LFG first learned of the October 10 judgment of garnishment at the

hearing on its motion to dissolve on November 3, 2008. 3

      LFG thereafter filed a “Motion to Set Aside Judgment in Garnishment and

for New Trial” on November 7, 2008, claiming it was not served in strict

compliance with the rules of civil procedure. LFG submitted an affidavit by its

attorney, Mark Snyder, in support of the motion. Snyder stated in the affidavit

that he told AMC’s attorney, Franklin Cram, on either October 6 or October 7,

2008, that he would not accept service of the writ of garnishment on behalf of

LFG. Snyder also averred that he received a faxed letter from Cram on October

9, 2008. The October 9, 2008 letter enclosed a copy of an undated facsimile

to LFG forwarding the writ of garnishment and application for writ of

garnishment. Snyder further testified that he was unaware AMC had moved

forward with the judgment of garnishment on October 10, 2008, and that he




      3
        There is no reporter’s record from the November 3 hearing or written
order on LFG’s motion to dissolve writ of garnishment. However, the trial
court’s docket sheet indicates the trial court denied LFG’s motion to dissolve
writ of garnishment.

                                      3
incorrectly calculated LFG’s answer day as if responding to service of citation

rather than a writ of garnishment.

      LFG attached a copy of the October 9, 2008 letter from Cram as an

exhibit to Snyder’s affidavit. In the October 9, 2008 letter to Snyder, Cram

stated: “I am enclosing the fax I sent [to LFG].”        Although the enclosed

facsimile included the writ of garnishment, the application for writ of

garnishment, and an affidavit from Childers, the October 9, 2008 letter did not

set forth the date on which AMC sent the facsimile to LFG.           Further, the

enclosed facsimile is not dated and does not include facsimile-transmission

information indicating when AMC sent it; the only facsimile-transmission

information relates to the facsimile sent by Cram to Snyder on October 9,

2008, the day before the trial court signed the agreed judgment.

      The trial court conducted a hearing on LFG’s Motion to Set Aside

Judgment in Garnishment and for New Trial on December 5, 2008. Although

LFG contested notice under rule 663a in its motion, AMC did not offer evidence

of notice at the hearing or in a written response. 4 The trial court orally denied

LFG’s motion at the end of the hearing, 5 and this appeal followed.


      4
        AMC filed a written response to LFG’s motion on the day of the
hearing, but AMC did not submit any evidence with the response.
      5
        The trial court stated: “I’m going to deny the motion for new trial and
let the parties proceed on the bill of review question.” The bill of review

                                        4
                  III. Service of Writ of Garnishment on LFG

      In its first and second issues, LFG argues the trial court erred by denying

its motion to set aside judgment and for new trial because there is no evidence

in the record that LFG was properly served with notice of the writ of

garnishment, or, alternatively, the notice LFG received was untimely. 6        In

response, AMC contends the trial court correctly denied LFG’s motion because

the judgment recites notice was proper under rule 663a, there is no minimum

notice required under rule 663a, and LFG failed to prove that it was not served

in compliance with rule 663a. 7

      A.    Standard of Review

      A trial court’s order denying a motion to set aside a default judgment or

for new trial is reviewed under an abuse of discretion standard. Strackbein v.

Prewitt, 671 S.W.2d 37, 38 (Tex. 1984); Martinez v. Martinez, 157 S.W.3d



proceeding filed by LFG is not before this court, and we express no opinion on
the merits of that proceeding.
      6
        We address LFG’s first and second issues together because they
involve the same questions of law and fact.
      7
        AMC also argues LFG waived its notice arguments by not raising them
in its motion to set aside and for new trial. We disagree. LFG specifically
stated on the first page of its motion that a “judgment in garnishment is subject
to being set aside” where the “judgment debtor has not been give[n] proper
notice of a garnishment pursuant to Rule 663a of the Texas Rules of Civil
Procedure” and that “[t]he notice allegedly given to [LFG] did not comply with
Rule 663a.”

                                       5
467, 469 (Tex. App.—Houston [14th Dist.] 2004, no pet.). The trial court

abuses its discretion if it acts without reference to any guiding rules or

principles. Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997).

      B.    Applicable Law

      “A writ of garnishment impounds the alleged money, property, or credits

of the debtor.” Mendoza v. Luke Fruia Invs., Inc., 962 S.W.2d 650, 651 (Tex.

App.—Corpus Christi 1998, no pet.) (citing Beggs v. Fite, 130 Tex. 46, 52,

106 S.W.2d 1039, 1042 (1937)). “The writ of garnishment affords a harsh

remedy.    It was not known to the common law, but is purely statutory.”

Walnut Equip. Leasing Co. v. J-V Dirt & Loam, 907 S.W.2d 912, 914 (Tex.

App.—Austin 1995, writ denied). “For this reason, garnishment proceedings

cannot be sustained unless they strictly conform to the statutory requirements

and related rules.” Id. Specifically, “[t]he garnishor must strictly comply with

the requirement that it serve the debtor, and its failure to comply is not a mere

irregularity.” Id. “Without proper service of the writ on the debtor, no control

or custody of his property can be gained by his answer.”         Mendoza, 962

S.W.2d at 652.

      Rule 663a of the rules of civil procedure states, in relevant part: “The

defendant shall be served in any manner prescribed for service of citation or as

provided in Rule 21a with a copy of the writ of garnishment, the application,


                                       6
accompanying affidavits and orders of the court as soon as practicable

following the service of the writ.” Tex. R. Civ. P. 663a; see also Hering v.

Norbanco Austin I, Ltd., 735 S.W.2d 638, 641 (Tex. App.—Austin 1987, writ

denied).   Actual knowledge or a voluntary appearance by the debtor is

insufficient and does not waive rule 663a’s requirement of service of the writ.

Walnut Equip. Leasing Co., 907 S.W.2d at 914; Hering, 735 S.W.2d at 642;

see also Requena v. Salomon Smith Barney, Inc., No. 01-00-00783-CV, 2002

WL 356696, at *3 (Tex. App.—Houston [1st Dist.] March 7, 2002, no pet.);

Mendoza, 962 S.W.2d at 652. Although rule 663a does not entitle a debtor

to a minimum of twenty days’ notice as with service of an original petition,

Mullins v. Main Bank & Trust, 592 S.W.2d 24, 26 (Tex. Civ. App.—Beaumont

1979, no writ), the debtor does have the right to service of the writ of

garnishment and related documents “as soon as practicable following the

service of the writ” on the garnishee. Tex. R. Civ. P. 663a.

      C.    Analysis

      LFG argues the trial court erred by denying its motion to set aside and for

new trial because there is no evidence in the record that LFG was served with

notice of the writ of garnishment, or, alternatively, that the notice LFG received

was untimely. Before addressing LFG’s issues, we must first address AMC’s

contentions that there is sufficient evidence of service because the judgment


                                        7
recites service was proper under rule 663a, that there is no minimum notice

required under rule 663a, and that LFG had the burden to prove it was not

properly served under rule 663a.

            1.    No Presumption of Service from Recitation in Judgment

      AMC contends there is sufficient evidence of service because the

judgment recites LFG was served in compliance with rule 663a. Although a

recitation of due notice in a judgment is some, but not conclusive, evidence of

proper notice of trial settings and hearings, see Osburn v. Osburn, 961 S.W.2d

408, 411 (Tex. App.–Houston [1st Dist.] 1997, pet. denied), the rule does not

apply to default judgments. In an attack upon a default judgment, a recitation

of due service in the judgment does not lead to a presumption of due service.

Morris v. Zesati, 162 S.W.3d 669, 671 (Tex. App.—El Paso 2005, no pet.)

(citing McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex. 1965)). Instead, the

plaintiff must “prove that the defendant was served in the required manner.”

Id.

      Here, the judgment in garnishment is analogous to a default judgment

because the trial court signed the judgment in garnishment before LFG

answered or otherwise appeared. See Tex. R. Civ. P. 239 (providing trial court

may render default judgment on the pleadings against a defendant that has not

filed an answer); see also Crowe v. Ware, No. 05-96-01294-CV, 1998 WL


                                      8
258398, at *1–2 (Tex. App.—Dallas May 22, 1998, no pet.) (treating

judgment in garnishment as default judgment on appeal by judgment debtor

claiming lack of service under rule 663a). While the judgment debtor is not a

necessary party to the garnishment action, the rules require that he be served

under rule 663a. Hering, 735 S.W.2d at 642 (citing Horseley, Collecting on

Judgments (State Bar of Texas Professional Development Program 1981)).

      “Rule 663a is unambiguous in its requirement that the debtor be given

notice of the garnishment and of his rights to regain his property.” Id. at 641.

“[G]arnishment proceedings cannot be sustained unless they strictly conform

to the statutory requirements and related rules.” Walnut Equip. Leasing Co.,

907 S.W.2d at 914. “[N]o control or custody of [a judgment debtor’s] property

can be gained by his answer” without proper service of the writ. Mendoza,

962 S.W.2d at 652. The creditor’s failure to strictly comply with the pertinent

rules “is fatal to its judgment in the garnishment action.” Hering, 735 S.W.2d

at 641 (emphasis in original).     We believe the rule applicable to default

judgments should apply to judgments in garnishment and hold that a recitation

of due service in a judgment in garnishment does not lead to a presumption of

due service.   See generally Morris, 162 S.W.3d at 671.       In this case, LFG

attacked the default judgment in garnishment by contending AMC did not serve

LFG in compliance with rule 663a.          Thus, even though the judgment in


                                       9
garnishment recites that LFG was properly served under rule 663a, there is no

presumption of valid service.

            2.      Rule 663a Requires Service As Soon As Practicable

      AMC next contends rule 663a does not establish a prescribed period in

which a garnishor must serve a writ of garnishment on the debtor.            We

disagree. Rule 663a specifically requires service on the judgment debtor “as

soon as practicable following service of the writ” on the garnishee. Tex. R. Civ.

P. 663a. “As soon as practicable” is not susceptible to a definitive definition

equally applicable in all cases, but we note that a fifteen-day delay before

serving the debtor does not satisfy the strict requirements of rule 663a. See

Requena, 2002 WL 356696, at *4. Thus, we reject AMC’s contention that

rule 663a does not establish a prescribed period in which the garnishor must

serve the debtor.

            3.      AMC had the Burden to Prove Proper Service

      AMC also argues the trial court correctly denied LFG’s motion to set aside

judgment and for new trial because LFG failed to prove it was not served in

compliance with rule 663a. In doing so, AMC incorrectly assumes LFG had the

burden to prove it was not properly served under the rule.

      Rule 663a permits service on the debtor “as provided in Rule 21a.” Tex.

R. Civ. P. 663a. Under rule 21a, all notices, other than citation, may be served


                                       10
by delivering a copy to the party either in person, by agent, or by certified or

registered mail to the party’s last known address or by fax to the party’s

current telecopier address. Tex. R. Civ. P. 21a. “A certificate by a party or an

attorney of record, or the return of an officer, or the affidavit of any person

showing service of a notice shall be prima facie evidence of the fact of service.”

Id. Rule 21a further provides that “the party or attorney of record shall certify

to the court compliance with this rule in writing over signature and on the filed

instrument.” Id. (emphasis added); see also Crowe, 1998 WL 258398, at *1

(noting certificate of service on file at time of garnishment judgment established

service by regular mail although certified mail was returned unopened).

      However, where the record does not contain a certificate of service, an

officer’s return, or an affidavit showing service of notice, there is no

presumption of receipt, and the party contending it properly sent notice has the

burden of proving proper notice under rule 21a. Mathis v. Lockwood, 166

S.W.3d 743, 745 (Tex. 2005); see Crowe, 1998 WL 258398, at *2 (citing

Walnut, 907 S.W.2d at 915 and Hering, 735 S.W.2d at 642 and holding rule

663a requires proof that debtor was properly served under rule 21a). Because

AMC did not file a certificate of service, an officer’s return, or an affidavit




                                       11
showing service, AMC had the burden to prove proper service under rule 21a.

Mathis, 166 S.W.3d at 745. 8

             4.    AMC Did Not Prove It Served LFG As Soon As Practicable

        We next consider whether the record contains sufficient evidence that

AMC served LFG in compliance with rule 663a. It is undisputed that AMC did

not serve LFG in a manner prescribed for service of citation. Thus, if AMC

properly served LFG, AMC must have done so “as provided in Rule 21a.” See

Tex. R. Civ. P. 663a. In this case, the combination of rules 21a and 663a

required AMC to deliver a copy of the writ of garnishment to either LFG (or its

duly authorized agent) or LFG’s attorney of record as soon as practicable after

service on the garnishee on September 19, 2008. See Tex. R. Civ. P. 21a,

663a.

        First, AMC has not shown that it served LFG by serving LFG or its duly

authorized agent as soon as practicable. The only evidence of service in the

record is the October 9, 2008 letter and its enclosed facsimile. The October


        8
        In this appeal from the trial court’s denial of LFG’s motion to set aside
judgment and for new trial, we express no opinion as to which party bears the
burden of proof on a motion under rule 664a. See Tex. R. Civ. P. 664a
(permitting trial court to dissolve or modify writ of garnishment upon sworn
motion by judgment debtor or other intervening party claiming interest in
garnished property). Our holding applies only to proof of timely service under
rule 663a “as provided in Rule 21a” in the absence of a certificate of service,
an officer’s return, or other prima facie proof of service. See Tex. R. Civ. P.
663a, 21a.

                                       12
9, 2008 letter states, “I am enclosing the fax I sent to [LFG],” but it does not

set forth the date AMC claims it sent the enclosed facsimile to LFG.        The

enclosed facsimile is not dated, and it does not include any facsimile-

transmission information to indicate when AMC sent it. While the lack of a

date on the facsimile does not necessarily defeat the fact of service under rule

21a, the lack of a date does mean AMC has not shown that it served LFG “as

soon as practicable” as required by rule 663a. See Tex. R. Civ. P. 663a.

      Second, AMC has not shown that it served LFG as soon as practicable

through LFG’s attorney of record. The record reflects AMC’s attorney sent the

undated facsimile as an enclosure to the October 9, 2008 letter to Snyder.

Assuming without deciding that Snyder was LFG’s attorney of record on

October 9, 2008, 9 we note that the garnishee, Chase, was served on

September 19, 2008, and that the trial court signed the judgment in

garnishment on October 10, 2008. Thus, AMC served a copy of the writ of

garnishment on LFG’s attorney twenty days after service on the garnishee and

one day before the trial court signed the judgment in garnishment. However,

nothing in the record explains the twenty-day delay in service. Under these


      9
        It is unclear from the record whether LFG, as of October 9, 2008, had
retained Snyder to represent LFG in the garnishment action or whether LFG had
only retained Snyder to file a bill of review to attack the underlying judgment.
Because it does not affect our holding, we assume Snyder represented LFG in
the garnishment action as of October 9, 2008.

                                      13
circumstances, we hold AMC failed to prove that it served LFG through its

attorney “as soon as practicable” as required by rule 663a. Tex. R. Civ. P.

663a; see also Requena, 2002 WL 356696, *3–4 (holding garnishor did not

serve judgment debtor “as soon as practicable” where garnishor could have

reasonably served judgment debtor fifteen days before it did).

      AMC’s failure to prove it strictly complied with rule 663a is fatal to its

judgment in garnishment. “It has long been the law of this State that if a

judgment-creditor intends to avail himself of the State’s aid in effecting a

deprivation of property, he must strictly comply with the pertinent rules.”

Hering, 735 S.W.2d at 641. Because the record does not reflect service of the

writ of garnishment on LFG as soon as practicable in compliance with rule

663a, the trial court abused its discretion in denying LFG’s motion to set aside

and for new trial. We sustain LFG’s first and second issues. 10




      10
          Because we sustain LFG’s first and second issues and hold AMC did
not serve LFG in compliance with rule 663a, we need not address LFG’s third
issue in which it contends it satisfied the second and third elements of the
Craddock test for overturning default judgments. See Lopez v. Lopez, 757
S.W.2d 721, 723 (Tex. 1988) (where there is no actual or constructive notice
of a trial setting, a party need not show “he had a meritorious defense as a
condition to granting his motion for new trial”); In re Marriage of Runberg, 159
S.W.3d 194, 200 (Tex. App.—Amarillo 2005, no pet.) (applying Lopez to both
the second and third elements of the Craddock test).

                                      14
                              IV. Conclusion

      Having sustained LFG’s first and second issues, we reverse the trial

court’s judgment and remand for further proceedings consistent with this

opinion.




                                               ANNE GARDNER
                                               JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

WALKER, J. filed a dissenting opinion.

DELIVERED: March 18, 2010




                                     15
                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                                NO. 2-09-010-CV


LEASE FINANCE GROUP, LLC                                         APPELLANT

                                       V.

RANDY CHILDERS, ARLINGTON                                         APPELLEES
MOTOR CARS USA, AND JP
MORGAN CHASE BANK, N.A.

                                   ------------

      FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY

                                   ------------

                          DISSENTING OPINION

                                   ------------

      I respectfully dissent.

      The final garnishment judgment at issue recites that the judgment-debtor

in the underlying garnishment proceeding, Appellant Lease Finance Group, LLC

(LFG) was given proper notice of the garnishment proceeding by the judgment

creditors, Appellees Randy Childers and Arlington Motor Cars USA (collectively

referred to herein as AMC). The judgment specifically states that “[t]he Court
. . . found that Judgment-Defendant Lease Finance Group, LLC has been

properly served with a copy of the Writ of Garnishment in accordance with Rule

663a.” LFG filed a motion for new trial. LFG’s motion for new trial does not

allege that it failed to receive notice—at best, LFG’s motion for new trial claims

that the notice it received was defective in some unspecified way. 1

      The trial court conducted a hearing on LFG’s motion for new trial. At that

hearing, LFG bore the burden to establish that it was entitled to a new

trial—that is, to offer evidence supporting its global allegation made in LFG’s

motion for new trial that its attorney did not believe that the notice given to

LFG was valid. 2 LFG failed to do so. Although provided with the opportunity,


      1
        LFG’s motion for new trial states that “[w]here a judgment debtor has
not been give [sic] proper notice of a garnishment pursuant to Rule 663a of the
Texas Rules of Civil Procedure, the judgment in garnishment is subject to being
set aside.” And the motion alleges that LFG’s attorney Mark Snyder “did not
believe that a valid notice of the Garnishment Action had been made upon [LFG]
in that the notice as represented to him by Plaintiffs’ counsel did not comply
with Rule 663a of the Texas Rules of Civil Procedure.” Nowhere in LFG’s
motion for new trial does it allege that it received no notice.
      2
         The majority inexplicably places the initial burden of proof at LFG’s
motion for new trial hearing on the judgment creditor, AMC. It is true that once
the party claiming lack of notice or service (here LFG) makes a sworn allegation
of lack of notice or comes forward with evidence or testimony supporting an
allegation of lack of notice, then the burden shifts to the opposing party (here
AMC) to prove proper service or notice. See, e.g., Mathis v. Lockwood, 166
S.W.3d 743, 745 (Tex. 2005) (explaining that “testimony by Lockwood’s
counsel that notice was sent did not contradict Mathis's testimony that notice
was never received”) (emphasis added). But the initial burden of proof is upon
the party claiming lack of notice; in Mathis, the party claiming lack of notice

                                        2
LFG did not call any LFG employee to testify at the motion for new trial hearing

that LFG did not receive notice.        Nor did LFG present to the trial court an

affidavit from any LFG officer or employee affirmatively stating that LFG had

not received notice. LFG offered no evidence in support of its motion for new

trial.

         LFG instead relied exclusively on an affidavit of its current attorney, Mark

Snyder,3 that was attached to LFG’s motion for new trial. Snyder’s affidavit

does not allege that LFG did not receive notice. Snyder’s affidavit indicates the

opposite—that copies of the required documents were faxed directly to LFG at



met his initial burden by providing testimony that notice was never received.
Id. Likewise, contrary to the majority’s position, notice is not automatically
defective for the failure to include a rule 21a certificate of service; in this
situation the party claiming lack of notice must still meet his initial burden of
proof by coming forward with a sworn allegation or evidence that notice was
not received before the burden shifts to the opposing party to prove proper
notice was given. Id.; see also Campsey v. Campsey, 111 S.W.3d 767,
771–72 (Tex. App.–Fort Worth 2003, no pet.) (explaining it is the appellant’s
initial burden to overcome the presumption of proper notice and that the
presumption “may not be discharged by mere allegations, unsupported by
affidavits or other competent evidence”); Hanners v. State Bar of Tex., 860
S.W.2d 903, 908 (Tex. App.—Dallas 1993, no writ) (same). LFG did not meet
this initial burden.
         3
        Snyder refused to accept rule 663a service on LFG, claiming he was
not LFG’s attorney in the garnishment proceeding at that time. Apparently,
Snyder subsequently became LFG’s attorney in the garnishment proceeding as
he swore in his affidavit that he had miscalculated LFG’s response date in the
garnishment proceeding and filed a motion for new trial along with his affidavit
for LFG in the garnishment proceeding.

                                           3
some time prior to the signing of the judgment of garnishment. 4 See Tex. R.

Civ. P. 663a (authorizing service of the writ of garnishment on the judgment

debtor as provided in rule 21a); Tex. R. Civ. P. 21a (authorizing service by

“telephonic document transfer to the recipient’s current telecopier number”).

      Although Snyder’s affidavit does aver that the notice given to LFG

was—in some unidentified way—not in compliance with rule 663a of the rules

of civil procedure, at the motion for new trial hearing LFG offered no

explanation of exactly how the notice was purportedly not in compliance with

rule 663a and offered no evidence in support of this contention. Assuming this

broad, global allegation that notice did not comply with rule 663a preserved a

complaint that notice to LFG was not provided as soon as practicable, LFG

nonetheless failed to introduce any evidence of this alleged fact. See Tex. R.




      4
           Specifically, Snyder swore that

      Plaintiffs’ attorney transmitted a fax to me on October 9, 2008,
      which he advised was the fax transmittal of notice to the
      Garnishment to [LFG] . . . .

               ....

      The alleged transmittal [sic] the judgment debtor, as contained in
      the fax did not comply with the requirements of Rule 663a, but
      was instead merely a copy of an undated fax transmittal dated [sic]
      the Writ of Garnishment and the Application for Writ of
      Garnishment.

                                        4
Civ. P. 663a (requiring notice be given to judgment debtor “as soon as

practicable following the service of the writ”). Because LFG did not prove or

swear on what date it received the faxed notice (nor did LFG deny receiving the

faxed notice), no evidence exists in the record of the date on which LFG

received the faxed notice. In the absence of evidence of the date on which LFG

received the faxed notice, no evidence exists that LFG did not receive it as soon

as practicable. 5

      Because LFG failed to meet its burden of offering evidence, or at least a

sworn allegation, that it either did not receive the notice faxed to it or that the

notice was faxed to it on a date certain—that was not as soon as practicable,

no evidence exists in the record before us that is contrary to the judgment’s

recitation of proper notice. In the absence of evidence in the record contrary




      5
        In the only case cited by the majority, the judgment debtor established
a date on which he received the required notice; then the trial court held that
the notice was not provided as soon as practicable. See Requena v. Salomon
Smith Barney, No. 01-00-00783-CV, 2002 WL 356696, at *4 (Tex.
App.—Houston [1st Dist.] Mar. 7, 2002, no pet.) (not designated for
publication) (explaining that the judgment debtor “was not served with a copy
of the writ until June 27, 2000, a day after the trial court began its hearing”).
Here, no date of receipt was proved by LFG; the majority’s holding that the
notice faxed to LFG was not provided as soon as practicable is pure
speculation.

                                        5
to the judgment’s recitation of proper notice, we are required to presume that

proper notice was given. 6

      The majority refuses to apply this presumption, claiming the garnishment

judgment is akin to a default judgment. I cannot agree; under the rules of civil

procedure, a garnishment judgment entered in the absence of an answer from

a judgment debtor is not a default judgment. Under the rules of civil procedure,

LFG, the judgment debtor, is not a party to the garnishment suit. See Tex. R.

Civ. P. 659 (providing that garnishment suit is docketed with plaintiff as

plaintiff and garnishee as defendant). Under the rules of civil procedure, LFG

as the judgment debtor does not file an answer in the garnishment suit. See

Tex. R. Civ. P. 665 (providing that the answer filed by the garnishee shall be

under oath); Tex. R. Civ. P. 667 (providing default judgment may be entered if

garnishee, not judgment debtor, fails to file answer). And finally, the majority’s




      6
         See, e.g., Gen. Elec. Capital Assurance Co. v. Jackson, 135 S.W.3d
849, 853 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (explaining that
court order, which recited that all persons entitled to citation were properly
cited, was entitled to presumption of correctness in absence of evidence to the
contrary); In re B.D., 16 S.W.3d 77, 80 (Tex. App.—Houston [1st Dist.] 2000,
pet. denied) (applying presumption of regularity when the judgment indicated
that notice had been given and there was no evidence to the contrary in the
record); Osborn v. Osborn, 961 S.W.2d 408, 411–13 (Tex. App.—Houston
[1st Dist.] 1997, writ denied) (explaining that recitation of proper notice in
judgment constitutes some, but not conclusive, evidence that proper notice was
given).

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holding that every garnishment proceeding in which a judgment debtor chooses

not to participate is a “default judgment” thwarts the very purpose underlying

garnishment proceedings—to permit judgment creditors to collect monies owed

to them pursuant to a final, already-litigated judgment.

      Because LFG failed to meet its initial motion for new trial burden of

presenting evidence or a sworn allegation that LFG did not receive notice or the

date on which LFG did receive notice so that the trial court could determine

whether that notice was provided as soon as practicable, I would hold that the

trial court did not abuse its discretion by denying LFG’s motion for new trial.

I would affirm the trial court’s judgment of garnishment. Because I am in the

minority, I respectfully dissent.




                                                 SUE WALKER
                                                 JUSTICE


DELIVERED: March 18, 2010




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