                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-12-00253-CV


PATRIOT RESIDENTIAL                                                 APPELLANT
MANAGEMENT SERVICES, LLC

                                        V.

WELLS FARGO BANK, N.A.,                                             APPELLEES
CARLOS LAZO D/B/A MAXWELL
FINISH CO.


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          FROM COUNTY COURT AT LAW NO. 2 OF TARRANT COUNTY

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                        MEMORANDUM OPINION 1

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      This is an appeal from the trial court’s order in a postjudgment garnishment

action ordering Wells Fargo Bank, N.A. to pay Carlos Lazo d/b/a Maxwell Finish

Co. funds on deposit at Wells Fargo, less $1,000 for attorney’s fees, in partial

satisfaction of a judgment due Lazo. We dismiss the appeal for lack of standing.

      1
       See Tex. R. App. P. 47.4.
                                   Background

      Lazo sued Patriot and MPI Forest Creek, LLC on a sworn account and for

quantum meruit in trial court cause number 2011-001946-2; he obtained a

judgment against Patriot for $140,227.86. Patriot had filed a cross-claim against

MPI and obtained a default judgment for $89,444.36.            Patriot then filed a

separate postjudgment garnishment action against Wells Fargo in the trial court

in trial court cause number 2011-001946-2-C, seeking to garnish MPI’s Wells

Fargo checking account. Lazo sought to intervene in the garnishment action, but

Patriot filed a motion to strike the intervention, on the grounds that Lazo had not

obtained a judgment against MPI, was not entitled to indemnification from MPI,

and therefore had no standing to intervene. The trial court granted the motion to

strike the intervention.

      Lazo then filed a motion for turnover in the same cause of action as the

original judgment, claiming that his judgment against Patriot remained unsatisfied

and he was entitled to turnover relief in the form of an assignment by Patriot of its

judgment award against MPI. The trial court granted the application for turnover

relief and ordered Patriot to assign its rights as judgment creditor in its judgment

against MPI to Lazo. Patriot executed the assignment on May 29, 2012. On

June 4, 2012, Lazo and Wells Fargo obtained an agreed final judgment in the

garnishment action by which Wells Fargo agreed to pay the deposited funds to

Lazo, less $1,000 in attorney’s fees.




                                         2
      Patriot filed two notices of appeal on June 22, 2012: one from the turnover

order in the turnover in trial court cause number 2011-001946-2, which we

docketed as 02-12-00252-CV, and the other from the agreed garnishment

judgment in cause number 2011-001946-2-C, which we docketed as cause

number 02-12-00253-CV. Patriot failed to file a brief in cause number 02-12-

00252-CV, and we dismissed that appeal after providing Patriot at least ten days’

prior notice. Patriot Residential Mgmt. Servs., LLC v. Lazo, No. 02-12-00252-

CV, 2013 WL 531039, at *1 (Tex. App.––Fort Worth Feb. 14, 2013, no pet.)

(mem. op.).

                                     Analysis

      In this appeal, Patriot complains primarily about the trial court’s turnover

order, but because we dismissed the appeal of that order, the appeal in this

cause number––02-12-00253-CV––is limited to the trial court’s order in the

garnishment action. See Tex. R. App. P. 25.1(b) (“The filing of a notice of appeal

by any party invokes the appellate court’s jurisdiction over all parties to the trial

court’s judgment or order appealed from.” (emphasis added)). Patriot does not

have standing to pursue the appeal of the trial court’s turnover order in the

garnishment suit. 2 See Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848


      2
        Although a garnishment action is ancillary to an underlying suit, the action
is a separate proceeding, and appeal from a final judgment in garnishment lies
independently of the underlying suit. See Tex. R. Civ. P. 657–74; Glassman v.
Goodfriend, 347 S.W.3d 772, 778 (Tex. App.––Houston [14th Dist.] 2011, pet.
denied); Reed v. State, 269 S.W.3d 619, 626 (Tex. App.––San Antonio 2008, no
pet.); In re Tex. Am. Express, Inc., 190 S.W.3d 720, 727 (Tex. App.––Dallas

                                         3
(Tex. 2005); City of Arlington v. Centerfolds, Inc., 232 S.W.3d 238, 244 (Tex.

App.––Fort Worth 2007, pet. denied). However, in its brief filed in this cause

number, 02-12-00253-CV, Patriot challenges the trial court’s ruling in, first, the

turnover action, and, if we found error as to that order, in the agreed judgment in

the garnishment action. It appears, therefore, that Patriot’s counsel may have

confused the cause numbers. In the interest of justice, we will review its sole

issue on appeal.

      Patriot’s sole argument is that Lazo––having failed to seek the turnover

relief he ultimately obtained in the garnishment action––was estopped by

principles of res judicata or collateral estoppel from seeking that relief in the

turnover action. Patriot ignores its own pleading in the garnishment action, in

which its sole argument was that the petition in intervention should be stricken

because Lazo, not being a judgment creditor as to MPI, could not seek

garnishment of MPI’s account in his own name. See Guar. Fed. Sav. Bank v.

Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990) (orig. proceeding)

(op. on reh’g) (“[U]nder Rule 60, a person or entity has the right to intervene if the


2005, orig. proceeding). After making a valid assignment, an assignor loses all
control over the chose and can do nothing to defeat the rights of the assignee.
Commercial Structures & Interiors, Inc. v. Liberty Educ. Ministries, Inc., 192
S.W.3d 827, 830 n.4 (Tex. App.––Fort Worth 2006, no pet.). An assignor of a
cause of action who has not retained some right or interest in the cause of action
is precluded from bringing suit. Id. Thus, Patriot––having assigned its judgment
against MPI to Lazo and having failed to supersede or appeal the turnover order
requiring it to do so––was no longer a party to the garnishment action when the
trial court rendered the agreed judgment.


                                          4
intervenor could have brought the same action, or any part thereof, in his own

name, or, if the action had been brought against him, he would be able to defeat

recovery, or some part thereof.”).

      In his application for turnover relief, Lazo asked the trial court to order

Patriot to assign him its interest in the judgment against MPI because (1) he was

unable to seek a writ of garnishment for MPI’s account in his own name and

(2) Patriot had not satisfied its judgment in his favor. Therefore, in the turnover

action, the trial court was evaluating the propriety of turnover relief––assignment

of Patriot’s judgment award against MPI––in satisfaction of Patriot’s debt to Lazo,

not the propriety of whether Lazo could intervene in the garnishment action as

between Patriot and MPI.             Compare Tex. Civ. Prac. & Rem. Code

Ann. § 31.002(a), (b)(1) (West 2008) (providing turnover remedy), with Tex. Civ.

Prac. & Rem. Code Ann. § 63.001 (West 2008) (setting forth requirements for

obtaining writ of garnishment, including that plaintiff have valid, subsisting

judgment against defendant). Because res judicata and collateral estoppel do

not preclude relitigation of different issues––and because Lazo did not have

standing to intervene in the garnishment action and therefore could not have

brought his application for turnover relief in that action––the trial court did not err

by granting Lazo’s application for turnover relief for that reason. 3 See State &

Cnty. Mut. Fire Ins. Co. v. Miller, 52 S.W.3d 693, 696 (Tex. 2001).


      3
      A cause of action is property to which the turnover statute applies. Main
Place Custom Homes, Inc. v. Honaker, 192 S.W.3d 604, 627 (Tex. App.––Fort

                                          5
                                    Conclusion

      Having determined that Patriot lacks standing to maintain this appeal, we

dismiss the appeal for want of jurisdiction.




                                                 TERRIE LIVINGSTON
                                                 CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; MCCOY and GABRIEL, JJ.

GABRIEL, J., concurs without opinion.

DELIVERED: May 30, 2013




Worth 2006, pet. denied). Patriot has not challenged the sufficiency of the
evidence supporting the trial court’s turnover order, nor has it challenged the
order on any grounds other than res judicata and collateral estoppel.


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