AND APPELLEES v. FROM OF COUNTYI (2011)

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

MEMORANDUM OPINION1

II. Background

Alan Bell loaned approximately $1.2 million to Russell and Empire for the purchase of heavy equipment used in the pipeline industry (the Equipment).   In September 2005, Bell was unable to locate Russell, who was hospitalized for treatment of a severe bipolar condition.   Bell sued Russell contending Russell failed to repay the loan and seeking recovery of actual and punitive damages and attorneys' fees and a prejudgment writ of attachment on the Equipment.   Bell thereafter sought service on Russell by publication.   The trial court authorized service by publication and entered an “Order for Issuance of Writ of Attachment.” ³

Russell did not answer the lawsuit, and the trial court signed an interlocutory default judgment in December 2005.   Bell subsequently filed an amended petition, and the trial court signed a second interlocutory default judgment on January 27, 2006.   The January 27, 2006 judgment awarded Bell actual damages of $1,155,000 and stated that the amount of punitive damages would “be determined in future proceedings.”   It also foreclosed Bell's attachment lien against the Equipment, ordered that the Equipment be delivered to Bell, and stated that an order of sale pursuant to rule of civil procedure 309 would issue upon request by Bell.⁴ The Equipment was sold at a public auction on March 15, 2006, and Pipeline placed the highest bid-$1,230,000.

Seven days after the sale to Pipeline, Russell appeared in the lawsuit and filed a motion for reconsideration and to set aside the interlocutory default judgments, contending that he had not been properly served.⁵  In May 2006, after being informed that Bell and Russell had agreed that the trial court should set aside the interlocutory judgments, the trial court entered an order setting aside the default judgments and declaring them “void ab initio, and of no force and effect at any time.”   The trial court also ordered that the proceeds

Civil practice and remedies code section 34.021 states:  A person is entitled to recover his property that has been seized through execution of a writ issued by a court if the judgment on which execution is issued is reversed or set aside and the property has not been sold at execution.  Tex. Civ. Prac. Rem.Code Ann. 34.021 (emphasis added).   In addition, civil practice and remedies code section 34.022 provides:

(a) A person is entitled to recover from the judgment creditor the market value of the persons property that has been seized through execution of a writ issued by a court if the judgment on which execution is issued is reversed or set aside but the property has been sold at execution.

(b) The amount of recovery is determined by the market value at the time of sale of the property sold.

Id. 34.022 (emphasis added).   Relying on section 34.022, Pipeline argues that because the Equipment was sold at execution before the January 26, 2007 judgment was set aside, Empire has an exclusive remedy against Bellthe judgment creditorand that Empire is precluded from recovering the Equipment from Pipeline or the Subsequent Purchasers.

The meaning of a statute is a legal question, which we review de novo.   Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex.2009);  F.F.P. Operating Partners., L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex.2007).   We begin by examining the exact wording and apply the tenet that the legislature chooses its words carefully and means what it says.   See In re M.N., 262 S.W.3d 799, 802 (Tex.2008);  Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex.1981);  Benish v. Grottie, 281 S.W.3d 184, 192-93 (Tex.App.-Fort Worth 2009, pet. denied).

Applying these rules of statutory construction to section 34.022, we note that Empires claims against Pipeline are common law claims for trespass to chattels ¹² and conversion, that Pipeline is not the judgment creditor, and that Empire pursued and settled its claims against Bellthe judgment creditor.   Had the Equipment not been sold when the trial court set aside the default judgments, Empire could have, pursuant to section 34.021, sought the return of the Equipment.   See Tex. Civ. Prac. Rem.Code Ann. 34.021;  see also In re Discount Rental, 216 S.W.3d at 832 (ordering return of property held by constable).   Indeed, section 34.021 does not on its face prohibit a judgment debtor from seeking the return of its property so long as the property has not been sold.   See Tex. Civ. Prac. Rem.Code Ann. 34.021.   But Empires property was sold, and section 34.022 therefore applies.   See id. 34.022(a).   And unlike section 34.021, section 34.022 limits Empires claim to one against the judgment creditor.   See id.   Therefore, because the Equipment had been sold before the trial court set aside the default judgments, we hold that Empires exclusive remedy was against Bellthe judgment creditor.   See id.;   Waffle House v. Williams, 313 S.W.3d 796, 80204, 809 (Tex.2010) (holding common law claim abrogated by impliedly exclusive statutory scheme).   We hold that the trial court did not abuse its discretion by refusing to set aside the execution sale to Pipeline or by denying leave for Empire to join the Subsequent Purchasers as third-party defendants.¹³  We further hold that the trial court properly granted Pipelines first motion for summary judgment.   We overrule Empires first, third, and fourth issues.

B. Empires Pleading for Declaratory Relief Against Pipeline

Empire contends in its second issue that the trial court erred by striking its pleading for declaratory relief against Pipeline in which Empire sought a declaration that the execution, levy, sale, and bill of sale were void.   Empire argues that the trial courts order was a partial death penalty and that the striking of the pleading was not a just sanction against Empire.

At the time that Empire filed its pleading for declaratory relief against Pipeline, Empire had pending claims against Pipeline for trespass to chattels, conversion, and wrongful execution, levy, and seizureall of which sought the return of the Equipment based on the alleged invalidity of the sale.   In addition, Pipeline had a pending counterclaim for declaratory relief that Empires remedies, if any, are limited to recovery of damages from parties other than [Pipeline].   In its brief in this court, Empire asserts that it filed its pleading for declaratory relief against Pipeline because it sought to meet [Pipelines] counter-claim with [its] pleading for a declaratory judgment that the constables sale was void.   However, “[t]he Declaratory Judgments Act is ‘not available to settle disputes already pending before a court.’ ”  BHP Petroleum Co. Inc. v. Millard, 800 S.W.2d 838, 841 (Tex.1990) (quoting Heritage Life v. Heritage Grp. Holding, 751 S.W.2d 229, 235 (Tex.App.-Dallas 1988, writ denied)).   Thus, because the issue of the validity of Pipeline's title to the Equipment was already pending before the court at the time Empire filed its pleading for declaratory relief against Pipeline, the trial court could have validly stricken Empire's pleading for declaratory relief on this ground.   See Sanchez v. AmeriCredit Fin. Servs., Inc., 308 S.W.3d 521, 524 (Tex.App.-Dallas 2010, no pet.)  (“A counterclaim for declaratory judgment is improper if it is nothing more than a mere denial of the plaintiff's claims and the counterclaim fails to have greater ramifications than the original suit.”).   And because we are bound to uphold the trial court's ruling if it reached the correct result, we hold that the trial court did not abuse its discretion by striking Empire's pleading for declaratory relief against Pipeline.   See Markel Ins. Co. v. Muzyka, 293 S.W.3d 380, 385 (Tex.App.-Fort Worth 2009, no pet.)  (“[R]egardless of the reasoning employed by the trial court ․, if the trial court reached the correct result, we will affirm its ruling.”).¹⁴  We overrule Empire's second issue.

C. Pipelines Second Motion for Summary Judgment

In its fifth issue, Empire argues that the trial court erred by granting Pipeline's second motion for summary judgment.   After the trial court granted Pipeline's first motion for summary judgment, Empire filed a supplemental pleading in which it alleged that the sale to Pipeline should be set aside in equity because irregularities in the sale led to the Equipment being sold for a grossly inadequate price.   Pipeline then filed its second motion for summary judgment and requested summary judgment on three grounds:  (1) res judicata based on the trial court's prior interlocutory rulings;  (2) mootness because Pipeline no longer possessed the Equipment;  and (3) no evidence of alleged irregularities in the execution sale that led to a grossly inadequate price.   Empire responded to Pipeline's second motion for summary judgment and presented argument and evidence that its equitable claim differed from the claims on which the trial court had previously ruled or granted summary judgment and that irregularities in the execution sale caused a grossly inadequate price.   However, Empire presented no argument or evidence concerning the mootness ground raised in Pipeline's second motion for summary judgment.   Empire also does not brief this court as to why its claim for equitable relief against Pipeline is not moot.

When the trial court's judgment rests upon more than one independent ground or defense, the aggrieved party must assign error to each ground, or the judgment will be affirmed on the ground to which no complaint is made.  Scott v. Galusha, 890 S.W.2d 945, 948 (Tex.App.-Fort Worth 1994, writ denied).   One of the grounds asserted by Pipeline in its second motion for summary judgment was mootness, but Empire did not respond to this ground in the trial court and does not challenge this ground on appeal.   Therefore, we must affirm the summary judgment.   See id.;   see also Pat Baker Co., Inc. v. Wilson, 971 S.W.2d 447, 450 (Tex.1998);  Torres v. Johnson, 91 S.W.3d 905, 908 n.3 (Tex.App.-Fort Worth 2002, no pet.) (affirming summary judgment on unchallenged ground);  King v. Tex. Employers' Ins. Ass'n, 716 S.W.2d 181, 182-83 (Tex.App.-Fort Worth 1986, no writ) (affirming summary judgment “because summary judgment may have been granted, properly or improperly,” on the ground set out in the motion, and the appellant did not challenge that ground).   We overrule Empire's fifth issue.

V. Conclusion

Having overruled Pipeline's sole cross-issue and each of Empire's issues, we affirm the trial court's judgment.

PANEL:  DAUPHINOT, GARDNER, and WALKER, JJ.

DELIVERED:  March 3, 2011

FOOTNOTES

FN1. See Tex.R.App. P. 47.4..  FN1. See Tex.R.App. P. 47.4.

FN2. Russell is the sole shareholder of Empire..  FN2. Russell is the sole shareholder of Empire.

FN3. See Tex. Civ. Prac. & Rem.Code Ann. §§ 61.001-.002 (Vernon 2008);  .0021 (Vernon Supp.2010);  .003-.021 (Vernon 2008);  .022 (Vernon Supp.2010);  .023-.063 (Vernon 2008).   The order for writ of attachment also required the placement of GPS tracking devices on the Equipment..  FN3. See Tex. Civ. Prac. & Rem.Code Ann. §§ 61.001-.002 (Vernon 2008);  .0021 (Vernon Supp.2010);  .003-.021 (Vernon 2008);  .022 (Vernon Supp.2010);  .023-.063 (Vernon 2008).   The order for writ of attachment also required the placement of GPS tracking devices on the Equipment.

FN4. See Tex.R. Civ. P. 309 (providing that judgments foreclosing liens “shall be that the plaintiff recover his debt, damages and costs, with a foreclosure of the plaintiff's lien on the property subject thereto, and, ․ that an order of sale shall issue to any sherriff or any constable ․ directing him to seize and sell the same as under execution”)..  FN4. See Tex.R. Civ. P. 309 (providing that judgments foreclosing liens “shall be that the plaintiff recover his debt, damages and costs, with a foreclosure of the plaintiff's lien on the property subject thereto, and, ․ that an order of sale shall issue to any sherriff or any constable ․ directing him to seize and sell the same as under execution”).

FN5. In a subsequent hearing, Russell testified that he had received a copy of the original petition by early December 2005 and that he hired his attorney “immediately.”   Russell's attorney testified that he also knew about the lawsuit, that he called the clerk's office periodically to check for a return of service, but that he “dropped the ball” and did not file an answer to the lawsuit..  FN5. In a subsequent hearing, Russell testified that he had received a copy of the original petition by early December 2005 and that he hired his attorney “immediately.”   Russell's attorney testified that he also knew about the lawsuit, that he called the clerk's office periodically to check for a return of service, but that he “dropped the ball” and did not file an answer to the lawsuit.

FN6. See Tex. Civ. Prac. & Rem.Code Ann. § 34.021 (Vernon 2008) (“A person is entitled to recover his property that has been seized through execution of a writ issued by a court if the judgment on which execution is issued is reversed or set aside and the property has not been sold at execution.” (emphasis added))..  FN6. See Tex. Civ. Prac. & Rem.Code Ann. § 34.021 (Vernon 2008) (“A person is entitled to recover his property that has been seized through execution of a writ issued by a court if the judgment on which execution is issued is reversed or set aside and the property has not been sold at execution.” (emphasis added)).

FN7. The severance order is the final judgment in this case because the summary judgment was interlocutory until Empire's claims against Pipeline were severed from the existing lawsuit.   See Diversified Fin. Sys, Inc. v. Hill, Heard, O'Neal, Gilstrap & Goetz, P.C., 63 S.W.3d 795, 795 (Tex.2001)..  FN7. The severance order is the final judgment in this case because the summary judgment was interlocutory until Empire's claims against Pipeline were severed from the existing lawsuit.   See Diversified Fin. Sys, Inc. v. Hill, Heard, O'Neal, Gilstrap & Goetz, P.C., 63 S.W.3d 795, 795 (Tex.2001).

FN8. We abated this appeal for the trial court to determine the date on which Empire “received notice or acquired actual knowledge that the February 13, 2009 judgment had been signed.”   See Tex.R.App. P. 4.2(c);  Tex.R. Civ. P. 306a(5).   The trial court had previously conducted a hearing pursuant to rule 306a(5) on Empire's motion to determine the date on which appellate deadlines began, but the trial court did not make a finding as to the date Empire acquired actual knowledge of the signing.   After we abated the appeal, the trial court made a finding of fact that “the date on which [Empire] received notice or acquired actual knowledge that the February 13, 2009 Judgment had been signed was March 23, 2009.”.  FN8. We abated this appeal for the trial court to determine the date on which Empire “received notice or acquired actual knowledge that the February 13, 2009 judgment had been signed.”   See Tex.R.App. P. 4.2(c);  Tex.R. Civ. P. 306a(5).   The trial court had previously conducted a hearing pursuant to rule 306a(5) on Empire's motion to determine the date on which appellate deadlines began, but the trial court did not make a finding as to the date Empire acquired actual knowledge of the signing.   After we abated the appeal, the trial court made a finding of fact that “the date on which [Empire] received notice or acquired actual knowledge that the February 13, 2009 Judgment had been signed was March 23, 2009.”

FN9. Pipeline's issue on cross appeal is that the trial court erred by failing to make findings of fact that (1) the trial court rendered final judgment on February 12, 2009, when it orally severed Empire's claims into a new cause number;  (2) Empire had actual knowledge of the trial court's February 12, 2009 oral order of severance;  (3) Empire agreed to the severance in open court at the February 12, 2009 hearing;  and (4) the trial court signed a written order granting the severance on February 13, 2009.   Building on its contention that the trial court should have made these findings, Pipeline argues that Empire should have filed its notice of appeal within thirty days of the February 13, 2009 severance order because Empire had actual knowledge of the trial court's oral rendition of severance at the February 12, 2009 hearing..  FN9. Pipeline's issue on cross appeal is that the trial court erred by failing to make findings of fact that (1) the trial court rendered final judgment on February 12, 2009, when it orally severed Empire's claims into a new cause number;  (2) Empire had actual knowledge of the trial court's February 12, 2009 oral order of severance;  (3) Empire agreed to the severance in open court at the February 12, 2009 hearing;  and (4) the trial court signed a written order granting the severance on February 13, 2009.   Building on its contention that the trial court should have made these findings, Pipeline argues that Empire should have filed its notice of appeal within thirty days of the February 13, 2009 severance order because Empire had actual knowledge of the trial court's oral rendition of severance at the February 12, 2009 hearing.

FN10. The case on which Pipeline bases its cross-issue says as much.   See Tex. Life Ins. Co. v. Tex. Bldg. Co., 307 S.W.2d 149, 154 (Tex.Civ.App.-Fort Worth 1957, no writ).   For purposes of deadlines other than the timetables for appeal, the controlling date is the date that judgment is rendered.   See id..  FN10. The case on which Pipeline bases its cross-issue says as much.   See Tex. Life Ins. Co. v. Tex. Bldg. Co., 307 S.W.2d 149, 154 (Tex.Civ.App.-Fort Worth 1957, no writ).   For purposes of deadlines other than the timetables for appeal, the controlling date is the date that judgment is rendered.   See id.

FN11. Empire has already pursued a claim against Bell for the market value of the Equipment and reached a settlement with him..  FN11. Empire has already pursued a claim against Bell for the market value of the Equipment and reached a settlement with him.

FN12. Empire's pleading actually alleges an “action sounding in replevin,” but Empire's responses to Pipeline's special exceptions and motion for summary judgment clarified that its “action sounding in replevin” is a cause of action for trespass to chattels..  FN12. Empire's pleading actually alleges an “action sounding in replevin,” but Empire's responses to Pipeline's special exceptions and motion for summary judgment clarified that its “action sounding in replevin” is a cause of action for trespass to chattels.

FN13. Empire relies on Burlington Coat Factory to support its contention that the trial court should have ordered the return of its Equipment.   But Burlington Coat Factory was a mandamus proceeding, a sale had not yet occurred, and the trial court had already set aside the default judgment before refusing to set aside the order of sale.  See, 167 S.W.3d at 831.   None of those facts are present here.   Moreover, Empire's reliance on Ferris v. Security Savings Loan Association, 545 S.W.2d 208, 213 (Tex.Civ.App.Eastland 1976, no writ), and York Division, Borg-Warner Corp. v. Security Savings Loan Association, 485 S.W.2d 327, 330-31 (Tex.Civ.App.-Houston [1st Dist.] 1972, writ ref'd n.r.e.), is unconvincing because those cases were decided before the enactment of civil practice and remedies code section 34.022.   See Act of June 16, 1981, 67 th Leg., R.S., ch. 714 § 3(a), 1981 Tex. Gen. Laws (1981) (current version at Tex. Civ. Prac. & Rem.Code Ann. §§ 34.021-.022)..  FN13. Empire relies on Burlington Coat Factory to support its contention that the trial court should have ordered the return of its Equipment.   But Burlington Coat Factory was a mandamus proceeding, a sale had not yet occurred, and the trial court had already set aside the default judgment before refusing to set aside the order of sale.  See, 167 S.W.3d at 831.   None of those facts are present here.   Moreover, Empire's reliance on Ferris v. Security Savings Loan Association, 545 S.W.2d 208, 213 (Tex.Civ.App.Eastland 1976, no writ), and York Division, Borg-Warner Corp. v. Security Savings Loan Association, 485 S.W.2d 327, 330-31 (Tex.Civ.App.-Houston [1st Dist.] 1972, writ ref'd n.r.e.), is unconvincing because those cases were decided before the enactment of civil practice and remedies code section 34.022.   See Act of June 16, 1981, 67 th Leg., R.S., ch. 714 § 3(a), 1981 Tex. Gen. Laws (1981) (current version at Tex. Civ. Prac. & Rem.Code Ann. §§ 34.021-.022).

FN14. The trial court's order striking Empire's pleading for declaratory relief against Pipeline does not give the reason for the trial court's ruling.   Empire argues on appeal that the striking of its pleading was an inappropriate sanction, and Pipeline responds that the sanction was appropriate because Empire's pleading was groundless and brought in bad faith.   We express no opinion on the validity of the trial court's ruling on those grounds and simply hold that the trial court had a different basis for which it could have validly stricken Empire's pleading for declaratory relief against Pipeline.   See Markel, 293 S.W.3d at 385..  FN14. The trial court's order striking Empire's pleading for declaratory relief against Pipeline does not give the reason for the trial court's ruling.   Empire argues on appeal that the striking of its pleading was an inappropriate sanction, and Pipeline responds that the sanction was appropriate because Empire's pleading was groundless and brought in bad faith.   We express no opinion on the validity of the trial court's ruling on those grounds and simply hold that the trial court had a different basis for which it could have validly stricken Empire's pleading for declaratory relief against Pipeline.   See Markel, 293 S.W.3d at 385.