
In The


Court of Appeals


Ninth District of Texas at Beaumont


____________________


NO. 09-01-386 CV

____________________


WOODY WRIGLEY, Appellant


V.


FIRST NATIONAL SECURITY CORPORATION and 

COMMUNITY BANK AND TRUST, Appellees




On Appeal from the 136th District Court
Jefferson County, Texas

Trial Cause No. D-162,778




OPINION
 This appeal by Woody Wrigley, in a proceeding to enforce a judgment against First
National Security Corporation with funds held by Community Bank and Trust in the name
of the judgment debtor, raises the following issue: "Final, Valid, and Enforceable Texas
Judgments Are Held By Me Based Upon Sustained Utah Judgments and Should be Upheld;
the Texas Trial Court Erred in Eventually Not Recognizing Those Judgments and
Subsequent Garnishments Based Thereon." 
	On April 24, 2000, Woody Wrigley filed a foreign judgment in the 136th District
Court of Jefferson County, Texas, Cause No. D-162,778.  The small claims judgment,
which was entered on April 5, 2000, in Cause No. 00-840-0297 by the Third District
Court, State of Utah, Salt Lake County, Sandy Department, awarded Wrigley a judgment
for $5090.00 against First National Security Corporation ("FNSC").  A writ of
garnishment issued and was served on the garnishee, Community Bank and Trust
("Community").  On May 22, 2000, Community answered the writ and admitted it held
funds exceeding $1,000,000 that belonged to the judgment debtor, FNSC.  On June 1,
2000, the trial court entered a judgment in garnishment.  On June 5, 2000, FNSC filed a
motion to vacate the judgment in garnishment and dissolve the writ on the grounds that in
filing the foreign judgment Wrigley failed to comply with the requirements of Sections
35.004 and 35.005 of the Texas Civil Practice and Remedies Code.  Those sections require
the judgment creditor to file either an affidavit of last known address of the judgment
debtor and the judgment creditor, or follow an alternate notice of filing.  See Tex. Civ.
Prac. & Rem. Code Ann. §§ 35.004-.005 (Vernon 1997).  That same day, the trial court
signed an order vacating the judgment in garnishment and dissolving the writ of
garnishment. 
	An order signed on June 23, 2000, enjoined FNSC from withdrawing funds from
its Community Bank accounts to a level below $15,000.  
	FNSC subsequently filed three motions: 1) a motion for non-recognition of the
foreign judgment; 2) a motion to vacate the foreign judgment; and 3) a motion to vacate
the June 23, 2000, order (which required FNSC to keep at least $15,000 of its funds in the
Community Bank accounts) and to dismiss Cause No. D-162,778.  The motion for non-recognition alleged that the Utah judgment filed in Texas had not been properly
authenticated.  There is no order denying FNSC's motion in the clerk's record, but a
docket sheet notation for July 17, 2000, states, "First National's Motion for Non-Recognition heard and denied; court will wait for ruling from Utah court before ordering
garnishment."  The motion to vacate the foreign judgment alleged the following:  the Utah
court lacked jurisdiction because the employment contract underlying the dispute placed
jurisdiction in Texas; the Utah small claims judgment was void because expenses are not
recoverable under the Utah Wage Statute; the Utah judgment was not final and, therefore,
not entitled to full faith and credit because it did not award a service fee pleaded for by the
plaintiff; and the Utah judgment had been procured by fraud because the plaintiff's
employment with FNSC terminated before the date of the claimed wages.  It appears the
trial court never heard this motion.  The motion to dismiss the suit, which FNSC filed on
April 27, 2001, alleged that the Utah small claims judgment had been set aside on October
10, 2000, and the suit had been dismissed by the Third District Court of Utah on October
25, 2000.  FNSC alleged, "Since the Plaintiff does not have a Judgment against Defendant,
Plaintiff is not entitled to garnishment against Defendant's accounts at Community Bank
and Trust, SSB and is not entitled to any of the relief requested." 
	On May 3, 2001, Wrigley filed a motion to release the contested funds to him,
"pursuant to the judgment entered on April 4, 2001 in the case of Woody Wrigley v. First
National Security, Corp., Cause No. 00-840-0297, in the Third Judicial District Court,
Salt Lake County, State of Utah."  Wrigley attached his affidavit, which averred that the
Texas court issued a writ of garnishment on April 26, 2000, that the writ was served the
next day, that a notice of filing of foreign judgment, pursuant to Civil Practice and
Remedies Code Section 35.004, issued and was mailed on April 26, 2000, and that notice
of writ of garnishment, pursuant to Civil Practice and Remedies Code Section 35.005, was
supplied through service by constable.  Wrigley's affidavit admitted that the Utah court
entered an order on October 4, 2000, which set aside the April 5, 2000, judgment, and that
the same court dismissed his complaint without prejudice on October 25, 2000.  Wrigley
also explained that he effectively appealed on November 7, 2000, that on March 30, 2001,
a trial de novo was held, and on April 4, 2001, judgment in the amount of $4,780.97 was
entered for Wrigley.  Wrigley attached a certified  copy of the April 4, 2001, judgment of
the Third Judicial District Court, Salt Lake County, Sandy Department, State of Utah, in
Cause No. 00-840-0297.  The judgment recited that Wrigley was entitled to $4,620.97 in
damages, and costs in the amount of $160.00.  On May 4, 2001, Wrigley filed another
motion to release the funds to him.  
	On May 4, 2001, the trial court considered FNSC's "Motion to Vacate Order
Regarding Garnishments And For Dismissal."  The judgment does not recite that an
evidentiary hearing was conducted, and none is noted on the docket sheet.  It appears that
the matter was submitted to the trial court upon the motions, responses, and affidavits of
the parties. (1)  On May 17, 2001, the trial court entered a judgment that found "that
Plaintiff's Judgment against Defendant upon which the Garnishment proceedings herein
were based was set aside"; ordered Community Bank to release the funds in controversy
to the attorney for FNSC; and dismissed Wrigley's suit.  Wrigley filed a motion for new
trial on May 24, 2001. 
	A controversy arose between Community and FNSC: Community asserted an
unrelated $280,000 claim against the FNSC funds on deposit at Community Bank. 
Although the order is not included in the clerk's record, the docket sheet reflects, and it
is undisputed, that on August 9, 2001, the trial court entered an order in enforcement of
its May 17, 2001, judgment in which it ordered Community Bank to pay the $15,000 fund
in its possession to the attorney for FNSC. 
	Wrigley filed notice of appeal on August 22, 2001.  FNSC then asked this Court
to dismiss the appeal for mootness and for want of jurisdiction.  On June 20, 2002, we
granted an extension of time for filing notice of appeal because Wrigley filed notice of
appeal within fifteen days of the last day allowed for filing, and he reasonably explained
the need for an extension of time to perfect appeal.  That same order denied the motion to
dismiss the appeal for lack of jurisdiction, but ordered Wrigley to amend his notice of
appeal.  He filed an amended notice of appeal on July 18, 2002.  We deferred ruling upon
the motion to dismiss for mootness until submission of the appeal, and it is that issue which
we now consider.
	FNSC contends "Wrigley's garnishment actions were dismissed by the trial court
on May 17, 2001.  Apparently, Wrigley wants this Court to resurrect his garnishment
suits."  The trial court's order of May 17, 2001, is a final, appealable order, timely and
duly appealed in the manner permitted by the Texas Rules of Appellate Procedure and the
decisional law of this State.  See Tex. R. App. P. 25.1, 26; Verburgt v. Dorner, 959
S.W.2d 615 (Tex. 1997).  If we conclude that the error complained of probably caused the
rendition of an improper judgment, we may modify the trial court's judgment, reverse that
judgment and remand the cause, or reverse and render judgment, as the error involved and
the interest of justice require.  See Tex. R. App. P. 43, 44. 
	FNSC argues that, in order for a garnishment action to lie, there must be property,
money, or credits of the debtor in possession of another, and, because Community Bank
released the funds to FNSC's attorney, no such funds currently exist. (2)   We disagree.  The
trial court's post-judgment orders regarding the disputed funds cannot moot the appeal of
the judgment itself.  Apparel Contractors, Inc. v. Vantage Properties, Inc., 620 S.W.2d
666, 668 (Tex. Civ. App.--Dallas 1981, writ ref'd n.r.e.)("Regardless of whether a
judgment has been superseded, it is not final so long as an appeal is pending, and, although
it may be enforced by execution, payment of a fund to one party pending appeal does not
discharge liability to a different party that may be established after reversal.").  Generally,
satisfaction of a judgment will not moot the appeal, provided the appellant did not pay the
judgment voluntarily.  Riner v. Briargrove Park Property Owners, Inc., 858 S.W.2d 370,
371 (Tex. 1993).  Because the controversy is not moot, we must consider the issue raised
by the appellant: whether the trial court erred in failing to recognize and enforce the
judgment against FNSC's funds on deposit with Community Bank.
	Wrigley's Texas suit consisted of the filing of a foreign judgment and an application
for a writ of garnishment, a subsequent injunction, the filing of a foreign judgment in the
same cause after re-trial in Utah, and a request for an order to have the funds turned over
to him.  The trial court correctly ruled that the April 5, 2000, judgment in Cause No. 00-840-0297 had been set aside.  However, in an amended pleading, Wrigley filed the April
4, 2001, Utah judgment in Cause No. 00-840-0297.  The trial court ruled only that
Wrigley's application for garnishment could not support a judgment in garnishment
because the former Utah judgment had been set aside by the Utah court.  Although aware
of it, the trial court never addressed the issue of whether the April 4, 2001, Utah judgment
is entitled to full faith and credit. (3) 
	A writ of garnishment is available if a plaintiff has a valid, subsisting judgment. 
Tex. Civ. Prac. & Rem. Code Ann. § 63.001 (Vernon 1997).  Unless a supersedeas bond
is filed, the judgment is deemed final and subsisting for the purposes of garnishment from
and after the date it is signed.  Tex. R. Civ. P. 657.  If the court finds that the garnishee
is indebted to the defendant in any amount, or was so indebted when the writ of
garnishment was served, the court shall render judgment for the plaintiff.  Tex. R. Civ.
P. 668.  The funds captured by the writ of garnishment are those held by the garnishee in
the account of the judgment debtor on the date the writ is served, and any additional funds
deposited through the date the garnishee is required to answer.  Newsome v. Charter Bank
Colonial, 940 S.W.2d 157, 164 (Tex. App.--Houston [14th Dist.] 1996, writ denied);
Consolidated Gasoline Co. v. Jarecki Mfg. Co., 72 S.W.2d 351 (Tex. Civ. App.--Eastland
1934), opin. adopted, 129 Tex. 644, 105 S.W.2d 663 (1937).  It does not necessarily
follow that the plaintiff's right to recover those funds from the garnishee is fixed by
whatever judgment the plaintiff possesses on that date.  The issuance and service of the
writ of garnishment fixes the trial court's jurisdiction to determine whether the garnishee
holds funds belonging to the judgment debtor, and necessarily that jurisdiction extends to
a determination of title and ownership of the funds, regardless of how that ownership is
placed in controversy.  Thompson v. Fulton Bag & Cotton Mills, 155 Tex. 365, 286
S.W.2d 411, 414 (Tex. 1956).  The garnishee may deposit the funds into the court, bring
in all other claimants through interpleader, and the trial court may then adjudicate the
conflicting claims of the parties.  Id. (4) 
	Suing out a writ of garnishment prior to the finality of the underlying judgment may
affect the priority of competing liens.  See Northshore Bank v. Commercial Credit Corp.,
668 S.W.2d 787 (Tex. App.--Houston [14th Dist.] 1984, writ ref'd n.r.e.).  The
competing claimants here are a judgment creditor and a judgment debtor, not two judgment
creditors, so lien priority is not an issue.  The trial court based its ruling upon the
precedent set by Tom Benson Chevrolet Co. v. Beall, 567 S.W.2d 857, 859 (Tex. Civ.
App.--San Antonio 1978, writ ref'd, n.r.e.).  That case stands for the general proposition
that a garnishment judgment, being merely a mode of enforcing the execution of a
judgment, must be supported by a valid judgment in the underlying suit.  Id.  Another case
stating this proposition is Enis v. Smith, 883 S.W.2d 662, 663 (Tex. 1994), which held that
mandamus would lie to set aside a turnover order after the underlying out-of-state
judgment was set aside by the issuing court for lack of personal jurisdiction over the
defendant.  See also Owen Elec. Supply, Inc. v. Brite Day Constr., Inc., 821 S.W.2d 283,
286 (Tex. App.--Houston [1st Dist.] 1991, writ denied) (A bankruptcy filing and discharge
occurring after the service day for the writ of garnishment precluded a judgment in
garnishment.).  In Enis and Owen Electric, the ultimate outcome of the underlying
litigation was favorable to the judgment debtor in the enforcement proceeding.  In Tom
Benson Chevrolet, the void judgment was eventually succeeded by a valid judgment for the
garnishor in the enforcement proceeding.  Tom Benson Chevrolet, 567 S.W.2d at 859. 
The Court of Appeals did not consider the effect of the subsequent judgment because the
trial court had granted the garnishment judgment on the first void judgment.  The Court
of Appeals could not consider the effect of the second judgment for the first time on
appeal.  In contrast, Wrigley expressly asked the trial court to enforce the second
judgment.  Tom Benson Chevrolet is not authority for the proposition that a garnishment
judgment cannot be based upon a new judgment entered after the granting of a motion for
new trial. 
	A judgment creditor may enforce a domestic judgment even pending appeal unless
a supersedeas bond has been filed.  Anderson v. Lykes, 761 S.W.2d 831, 833-34 (Tex.
App.--Dallas 1988, orig. proceeding).  Furthermore, garnishment is not the sole means
through which the judgment creditor may seek the court's assistance in reaching the
debtor's property.  The court may order the judgment debtor to do the following: 1) turn
over nonexempt property that is in the debtor's possession or is subject to the debtor's
control, together with all documents or records related to the property, to a designated
sheriff or constable for execution; 2) otherwise apply the property to the satisfaction of the
judgment; or 3) appoint a receiver.  Tex. Civ. Prac. & Rem. Code Ann. § 31.002
(Vernon Supp. 2003).  In this case, Wrigley asked the trial court to order the release of
the funds to him to satisfy his April 4, 2001, judgment.  That motion is essentially an
application for a turnover order.  The rules and statutes relating to the collection of
judgments are strictly construed against enforcement, however, and Wrigley did not satisfy
the requirements for either a turnover order or a writ of garnishment.  Id.; Tex. R. Civ.
P. 658.  See Thompson v. Harco Nat'l Ins. Co., 997 S.W.2d 607, 611 (Tex. App.--Dallas
1998, pet. denied), overruled on other grounds by John v. Marshall Health Servs., Inc.,
58 S.W.3d 738, 741 (Tex. 2001) (The Thompson case held that statutory provisions for
garnishment are to be strictly construed).  Therefore, the trial court did not abuse its
discretion by failing to order the funds be released to Wrigley.  The judgment of the trial
court is affirmed.
	AFFIRMED.
						______________________________
							STEVE MCKEITHEN
							       Chief Justice		

Submitted on January 29, 2003
Opinion Delivered April 10, 2003
Before McKeithen, C.J., Burgess and Gaultney, JJ.



DISSENTING OPINION

	I dissent.  This is a fairly simple case.  Mr. Wrigley began this action on April 24,
2000, basing it on a April 5, 2000, Utah Small Claims Judgment.  Although there were
several legal maneuvers, by May 3, 2001, Wrigley had presented the Texas District Court
with a April 4, 2001, Utah District Court Judgment which was based on an appeal and trial
de novo of the April 5, 2000, Small Claims Judgment.  
	The majority notes: "Although aware of it, the trial court never addressed the issue
of whether the April 4, 2001, Utah judgment is entitled to full faith and credit."  Then, in
a footnote, they also note:  "For purposes of this appeal we will assume that this Utah
judgment was properly domesticated."
	In a letter to all parties dated May 17, 2001, the trial court stated:
	. . . The basis of the garnishment entered by this court on June 23, 2000 was
two prior default judgments obtained by plaintiff.  Subsequently, however,
these were vacated and/or dismissed.  Apparently, plaintiff, ultimately,
obtained an appeal (trial de novo under Utah law) in which the Court ruled
favorably for the plaintiff.
		Nonetheless, it is clear under Texas law, once the original default
judgments were vacated and/or set aside, the original garnishment became
a nullity and the subsequent judgment, would do nothing to revive the
validity of the writ of garnishment.
		In Tom Vincent [sic] Chevrolet Company v. Beall, 567 S.W.2d 857
(Tex.Civ.App - San Antonio 1978, writ ref'd n.r.e.), the Court held that a
garnishment based on an original default judgment that was set aside, could
not be enforced on the basis of a subsequent judgment on that debt.  There,
the Court stated
		"[W]e need not discuss the second judgment as the garnishment was
filed prior to the rendition of the second judgment and the Court does
not purport to base the garnishment judgment thereon".
	Id. at 859

	The majority acknowledged the trial court based its ruling on Tom Benson Chevrolet
Company v. Beall, 567 S.W.2d 857 (Tex. Civ. App.-- San Antonio 1978, writ ref'd n.r.e.)
and correctly concludes that case:  ". . . stands for the general proposition that a
garnishment judgment, being merely a mode of enforcing the execution of a judgment,
must be supported by a valid judgment in the underlying suit."  They also noted: "Tom
Benson Chevrolet is not authority for the proposition that a garnishment judgment cannot
be based upon a new judgment after the granting of a motion for new trial."
	The majority makes the case for Wrigley and then, without more, simply concludes:
". . . and Wrigley did not satisfy the requirements for either a turnover order or a writ of
garnishment."  Under the analysis and facts utilized by the majority, at the time the trial
court vacated the garnishments and dismissed the suit (May 17, 2001), Wrigley had
provided the trial court a properly domesticated judgment (the April 4, 2001 Utah
judgment).  
	The trial court simply misinterpreted the law and applied it incorrectly.  The
majority acknowledges this, yet, incredibly, still affirms.  I dissent.






                                                                                       DON BURGESS

                                                                                              Justice

Dissent Delivered
April 10, 2003
1.   The court may have been proceeding without objection, under Tex. R. Civ. P.
664a ("The court's determination may be made upon the basis of affidavits, if
uncontroverted, setting forth such facts as would be admissible in evidence; otherwise, the
parties shall submit evidence.").    
2.   FNSC makes the following representation in its motion: "The disputed $15,000
which Community had taken on May 17, 2001, represented the last apparent resource
available to FNSC."
3.   Because its resolution is not necessary to this appeal, and may arise in subsequent
litigation, we express no opinion on the issue of whether the April 4, 2001, judgment is
entitled to full faith and credit.  For the purposes of this appeal we will assume that this
Utah judgment was properly domesticated.  
4.   In Thompson, the issue involved the effect that the quashing of the writ of
garnishment had on the trial court's jurisdiction after a second garnishment proceeding was
initiated in another county.  Thompson, 286 S.W.2d at 412-13.  The trial court had
jurisdiction because the subject matter of the suit was the ownership of the funds.
