                            NUMBER 13-12-00267-CV

                               COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


JOHNNY PARTAIN,                                                                   Appellant,

                                               v.

JAMES H. MAPLES,                                                                  Appellee.


                On appeal from the County Court at Law No. 7
                         of Hidalgo County, Texas.


                                         OPINION

                Before Justices Rodriguez, Garza, and Perkes
                        Opinion by Justice Rodriguez
       Appellant Johnny Partain appeals a judgment entered in favor of appellee James

H. Maples on March 16, 2012. By four issues, which we construe as two, Partain

challenges (1) the jurisdiction of the trial court, and (2) the trial court’s failure to enforce a
Rule 11 agreement. We vacate the trial court’s March 16, 2012 judgment and dismiss

for lack of jurisdiction.

                                           I. BACKGROUND

        It is undisputed that in January 1998, Partain filed his original petition against

Maples. On January 22, 2002, a jury found in favor of Partain, and on July 24, 2002, the

court entered judgment in his favor in the amount of $453,000.00. But on February 27,

2003, the trial court signed a third amended judgment, reducing the award. No appeal

was taken from the 2003 judgment. Subsequently, the trial court entered six turnover

orders and, according to Partain, between August 2008 and February 2011, held six

show cause hearings to enforce those orders.

        The record shows that, on February 2, 2011, the trial court entered an order

discharging and releasing Maples from all liability under any judgment arising from the

underlying cause and ordering Partain to file an accounting with the trial court “within 30

days detailing the amounts of assets collected so that [the court could] consider entry of

an order requiring Plaintiff[ ] to refund to Defendant JAMES H. MAPLES any sums

overpaid on the Judgment.” 1           Partain appealed the February 2011 order (appellate

cause no. 13-09-00238-CV).             On our own motion, we abated the appeal from the

February 2011 order and remanded the case to the trial court for clarification of the order.

Subsequently, the parties filed a joint motion to dismiss the appeal. Considering the

documents on file and the joint motion, on January 5, 2012, we reinstated the appeal,


        1
           We note that in May 2011, the trial judge recused himself, sua sponte, and the presiding judge of
the Fifth Administrative Judicial Region of Texas assigned the trial judge who entered the judgment from
which this appeal is taken.
                                                     2
granted the parties’ motion, and dismissed the appeal.2

          On March 16, 2012, the trial court entered “judgment” that purportedly addressed

Maples’s overpayment of the 2003 judgment. Partain appeals from the March 2012

judgment.

                                               II. JURISDICTION

          By his first issue, Partain contends that the trial court had no jurisdiction to render

the March 16, 2012 judgment. We agree.

A.        Applicable Law

          A trial court retains jurisdiction for a minimum of thirty days after signing a final

judgment. TEX. R. CIV. P. 329b(d)–(f); see Lane Bank Equip. Co. v. Smith S. Equip., Inc.,

10 S.W.3d 308, 310 (Tex. 2000). During this time, the trial court has plenary power to

vacate, modify, correct, or reform its judgment. Lane Bank Equip. Co., 10 S.W.3d at 310.

Timely filing an appropriate post-judgment motion may extend the period of plenary

power. Id.; see TEX. R. CIV. P. 329b(b)–(g). For example, the filing of a motion for new

trial or a motion to modify, correct, or reform the judgment within the initial thirty-day

period extends the trial court’s jurisdiction over its judgment up to an additional

seventy-five days, depending on when or whether the court acts on the motion. Lane

Bank Equip. Co., 10 S.W.3d at 310; see also TEX. R. CIV. P. 329b(b)–(g). A judgment

rendered after plenary power has expired is void. See Rawlins v. Rawlins, 324 S.W.3d

852, 855 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (citing Dikeman v. Snell, 490

S.W.2d 183, 186 (Tex. 1973) (orig. proceeding)).

          2
              The validity of the February 2011 order is not before us, and we do not address it further in this
appeal.
                                                         3
       Even after plenary power has expired, a trial court retains inherent power to

enforce its judgments. See TEX. R. CIV. P. 621 (“Enforcement of Judgment”); see also

Woody K. Lesikar Special Trust v. Moon, No. 14-10-00119-CV, 2011 Tex. App. LEXIS

6177, at *16 (Tex. App.—Houston [14th Dist.] Aug. 9, 2011, pet. denied) (mem. op.)

(quoting Arndt v. Farris, 633 S.W.2d 497, 499 (Tex. 1982) (“While the trial court's power

to vacate, modify, correct, or reform a judgment ceases under Rule 329b(d) thirty days

after the judgment is signed, the court's power to enforce its judgment is not so limited. . .

. The general rule is that every court having jurisdiction to render a judgment has the

inherent power to enforce its judgments.”)). The Texas turnover statute is the procedural

device by which a judgment creditor may reach assets of a judgment debtor that are

otherwise difficult to attach or levy on by ordinary legal process. See TEX. CIV. PRAC. &

REM. CODE ANN. § 31.002 (West 2008); Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223,

224 (Tex. 1991); see also Af-Cap., Inc. v. Rep. of Congo, 462 F.3d 417,426 (5th Cir.

2006) (discussing the Texas turnover statute). But the turnover statute may not be used

to determine substantive rights. See Cross, Kieschnick & Co. v. Johnston, 892 S.W.2d

435, 438 (Tex. App.—San Antonio 1994, no writ) (citing Cravens, Dargan & Co. v. Peyton

L. Travers Co., 770 S.W.2d 573, 576 (Tex. App.—Houston [1st Dist.] 1989, writ denied));

see also Moon, 2011 Tex. App. LEXIS 6177, at *20–23. Nor may the turnover statute be

used to change the substance of a trial court’s final judgment. See Tex. Dep’t of Transp.

v. A.P.I. Pipe & Supply, LLC, No. 10-1020, 2013 Tex. LEXIS 268, at *8 (Tex. Apr. 5, 2013)

(“An attempted nunc pro tunc judgment entered after the trial court loses plenary

jurisdiction is void if it corrects judicial rather than clerical errors.”); see also Consumers

                                              4
County Mut. Ins. Co. v. Mendoza, No. 13-05-0024-CV, 2007 Tex. App. LEXIS 1880, at

*15 (Tex. App.—Corpus Christi Mar. 8, 2007, no pet.) (mem. op.) (holding that a turnover

order nunc pro tunc was void because it was a “prohibited attempt to correct a judicial

error”).

        In Lesikar v. Rappeport, the Sixth Court of Appeals addressed whether a judgment

debtor could use a turnover proceeding to obtain reimbursement for overpayment of a

monetary judgment. 104 S.W.3d 310, 316 (Tex. App.—Texarkana 2003, pet. denied).

Because the requested relief would require a factual determination of the amount by

which the judgment creditor was overpaid and turnover is a purely procedural

mechanism, the appellate court held the judgment debtor was required to seek

reimbursement for the overpayment on the judgment in a separate suit—relief was not

available by turnover order. Id.

        In Moon, the Fourteenth Court of Appeals addressed a similar issue—whether a

trial court had jurisdiction to release liens on certain property by means of a turnover order

entered after the trial court’s plenary power expired. See 2011 Tex. App. LEXIS 6177, at

*18–19.     The trial court awarded Moon a judgment against Lesikar for certain real

property.3 Id. at *3. Post-judgment, Lesikar placed liens and a lis pendens on the

property because he claimed he was entitled to reimbursement of $600,000 in attorney

fees he advanced to a family trust to defend bogus claims Moon brought in another

lawsuit. Id. at *5. Moon sought a turnover order to declare the liens or encumbrances


        3
           Following our sister court, we refer to the parties in Woody K. Lesikar Special Trust v. Moon by
their individual names instead of their capacities as trustees because the distinction is not critical to this
discussion. See No. 14-10-00119-CV, 2011 Tex. App. LEXIS 6177, at *2–3 n.2 (Tex. App.—Houston
[14th Dist.] Aug. 9, 2011, pet. denied) (mem. op.).
                                                      5
invalid, id. at *5–6, but the appellate court held the trial court lacked jurisdiction after its

plenary power expired to use a turnover order to make a substantive determination that

the reimbursement claim of Lesikar, the judgment debtor, lacked merit. Id. at *20–23

(citing Steenland v. T.C.B. Nat’l Ass’n, 648 S.W.2d 387, 389–91 (Tex. App.—Tyler 1983,

writ ref’d n.r.e.) (holding that a turnover proceeding was an inappropriate means for the

post-judgment determination of the amount of excess homestead value subject to

collection, when that amount was not determined at the trial of the underlying case or in a

separate suit)).

B.     Discussion

       The record in this case shows that on February 27, 2003, the trial court entered its

third amended judgment which awarded Partain monetary relief against Maples on a

fraud claim, awarded Partain attorney’s fees, and stated it was a “final judgment.” That

judgment read as follows:

                              THIRD AMENDED JUDGMENT

              Came on to be considered James H. Maples’ Motion to Amend or
       Modify Judgment or Alternatively, Motion for New Trial, and the Court,
       having considered the motion, finds that Plaintiffs Johnny C. Partain and
       Teresa C. Partain are entitled to attorney’s fees, even though they are
       acting pro se, but that any award of appellate attorney’s fees must be
       conditioned on the success of the appeal; and thus the Court

              SETS ASIDE and VACATES its Second Amended Final Judgment;
       and it is ORDERED, ADJUDGED and DECREED that Plaintiffs, Johnny
       Partain and Teresa C. Partain, recover from James H. Maples, under their
       claim for fraud, the amount of $58,500 for actual damages, for attorney’s
       fees of $15,000, pre-judgment interest in the amount of $19,700, all costs of
       court, and post-judgment interest at the rate of ten (10%) per annum from
       the date of judgment until the judgment is satisfied.


                                               6
              In the event that James H. Maples appeals the judgment to the Court
       of Appeals, and that such appeal is unsuccessful, then Plaintiffs, Johnny
       Partain and Teresa C. Partain, recover from James H. Maples an additional
       $5,000, over and above any amount previously awarded.

             This is a final judgment. All other and further relief, not expressly
       granted, is hereby DENIED.

Subsequently, Partain obtained multiple turnover orders to enforce this February 2003

judgment.

       On March 16, 2012, the trial court purported to enter judgment against Partain, the

judgment creditor, as follows:

              Pursuant to the Court’s Order of February 3, 2011, Defendant James
       H. Maples was owed the sum of $14,120.26 plus the amount of recovery for
       any buses. Despite being ordered by the Court to produce an accounting
       for the buses, Plaintiff Johnny Partain failed to provide an accounting
       notwithstanding that there were 3 hearings so this matter could be
       concluded.

               Defendant James H. Maples gave testimony that was undisputed at
       an evidentiary hearing that the value of the buses was $155,700.00. His
       overpayment of $14,120.26 plus the value of the buses plus interest for one
       year on the overpayment comes to a total sum of $171,232.28.
       Subtracting the value of the condo and rescinding the turnover order would
       entitle him to a judgment of $101,232.28 with interest thereon at the legal
       rate. It is the judgment of this Court that Defendant, James H. Maples
       recover his condo with a rescission of the turnover order and further have a
       monetary judgment for $101,232.28.

       With this March 16, 2012 judgment, the trial court attempted to modify or reform its

2003 judgment. See Lane Bank Equip. Co., 10 S.W.3d at 310. Applying the rules and

principles set out above, we conclude that the trial court lacked jurisdiction to enter this

“final judgment” because its plenary power had expired. See id.; Rawlins, 324 S.W.3d at

855. Thus, the March 2012 judgment is void. See Rawlins, 324 S.W.3d at 855.


                                             7
       Nor can we construe the March 2012 judgment as a valid turnover order that may

be appealed. See Rappeport, 104 S.W.3d at 316; Steenland, 648 S.W.2d at 389–91;

see also Moon, 2011 Tex. App. LEXIS 6177, at *20–23. The March 2012 judgment

addressed substantive issues of property rights and valuation; it made substantive legal

determinations based on factual conclusions that should have been decided by a

factfinder in a separate suit. See Rappeport, 104 S.W.3d at 316; Steenland, 648 S.W.2d

at 389–91; see also Moon, 2011 Tex. App. LEXIS 6177, at *20–23. The judgment did

not address how Partain, the judgment creditor, might reach assets of Maples, a

judgment debtor.     See TEX. CIV. PRAC. & REM. CODE ANN. § 31.002 (West 2008);

Beaumont Bank, N.A., 806 S.W.2d at 224. Instead, the 2012 judgment determined the

amount of money that Maples, a judgment debtor, should have obtained as

reimbursement for his overpayment of a monetary judgment.            To reach this result,

Maples was required to seek reimbursement for the overpayment on the judgment in a

separate suit, not by a turnover order. See Rappeport, 104 S.W.3d at 316; see also

Moon, 2011 Tex. App. LEXIS 6177, at *20–23. The trial court lacked jurisdiction after its

plenary power had expired to use a turnover order to make this substantive

determination. See Steenland, 648 S.W.2d at 389–91; see also Moon, 2011 Tex. App.

LEXIS 6177, at *20–23.

       The trial court lacked jurisdiction to enter the March 16, 2012 judgment, so it is

neither a valid final judgment nor a valid turnover order. We sustain Partain’s first issue.

Based on our disposition of the jurisdictional issue, we need not address Partain’s

remaining issue. See TEX. R. APP. P. 47.1.

                                             8
                                     IV. CONCLUSION

       We vacate the trial court’s March 16, 2012 judgment and dismiss that portion of the

case for lack of jurisdiction. See id. at R. 43.2(e).



                                                              NELDA V. RODRIGUEZ
                                                              Justice

Delivered and filed the
9th day of May, 2013.




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