Glasstex, Inc., Appellant, v. Arch Aluminum and Glass Co. Inc., and James P. Grissom, Appellees.

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Court of Appeals of Texas, Corpus Christi-Edinburg.

Glasstex, Inc., Appellant, v. Arch Aluminum and Glass Co. Inc., and James P. Grissom, Appellees.

NUMBER 13–07–00483–CV

Decided: February 25, 2016

Before Chief Justice Valdez and Justices Rodriguez and Benavides 1


By seventeen 2 issues, which we consolidate and treat as one, appellant Glass Tex, Inc. (“Glasstex”) appeals the trial court's dismissal for want of jurisdiction of its causes of action brought against appellees Arch Aluminum & Glass Co. (“Arch”) and James P. Grissom.  We affirm.

I. Background 3

On October 21, 2005, Arch obtained a default judgment in Montgomery County against David Polvado, individually and doing business as Polvado Glass Co., Inc. (“Polvado”) related to a suit on a sworn account for damages totaling $54,309.95.  On March 7, 2006, the Montgomery County trial court granted Arch's application for a turnover after judgment and appointed appellee Grissom, of Edinburg, as receiver to “take possession of and sell the leviable assets of [Polvado].”  See Tex. Civ. Prac. & Rem. Code Ann. § 31.002(b)(3) (West, Westlaw through 2015 R.S.) (authorizing the appointment of a receiver).

According to Glasstex's pleadings, on March 24, 2006, Grissom appeared at Glasstex's place of business in Hidalgo County, locked the doors of the business, and “proceeded to confiscate items” that belonged to Glasstex.  In its pleadings, Glasstex asserted that Polvado is a separate entity from Glasstex, but Polvado “is an officer of [Glasstex].”  On March 29, 2006, in response to Grissom's actions, Glasstex filed suit against Arch and Grissom in Hidalgo County for wrongful collection, conversion, and abuse of process, as well as requests for temporary restraining order and temporary injunction.  That same day, the Hidalgo County trial court granted Glasstex's request for a temporary restraining order.

On May 15, 2006, Grissom filed a pleading with the trial court entitled “Defendant's Special Appearance Challenging Jurisdiction of the Court.”  In it, Grissom argued that any complaints or causes of action against him acting as the receiver should be taken before the issuing court in Montgomery County.  As a result, Grissom prayed that the trial court dismiss Glasstex's causes of action because the trial court was without jurisdiction.

On March 13, 2007, Glasstex filed a motion for summary judgment asserting, inter alia, that (1) Glasstex could maintain its action in Hidalgo County against Grissom and Arch;  (2) Grissom and Arch wrongfully converted Glasstex's property without a valid court order;  and (3) Glasstex suffered damages as a result of Arch and Grissom's trespass and wrongful collection.

On March 28, 2007, the trial court held a hearing on Grissom's motion to dismiss for lack of jurisdiction, and on April 11, 2007, it granted the motion and dismissed the entire case without prejudice.  This appeal followed.

II. Dismissal for Want of Jurisdiction

By Glasstex's consolidated issue, it asserts that the trial court erred by dismissing its cause of action for want of jurisdiction.

A. Standard of Review

Whether a court has subject matter jurisdiction is a question of law that we review de novo.  Tex. Dep't of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex.2004).

B. Discussion

As a starting point, we note that Glasstex appeals from the trial court's order dismissing its causes of action against Arch and Grissom for lack of jurisdiction.  Thus, the trial court undertook an analysis to determine—and ultimately ruled upon—whether it had subject-matter jurisdiction over Glasstex's causes of action against Arch and Grissom.  The question of subject-matter jurisdiction is fundamental and can be raised at any time.  Tullos v. Eaton Corp., 695 S.W.2d 568, 568 (Tex.1985).  Subject-matter jurisdiction is essential to the authority of a court to decide a case.  Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex.1993).  The issue may not be waived by the parties and may be raised for the first time on appeal.  Id. Additionally, lack of subject-matter jurisdiction may also be raised by a court sua sponte.  See Montenegro v. Ocwen Loan Servicing, LLC, 419 S.W.3d 561, 567 (Tex.2013).  Accordingly, any of Glasstex's arguments concerning personal jurisdiction, venue, and waiver are irrelevant to this appeal because the question squarely before us is:  did the trial court have subject-matter jurisdiction over Glasstex's causes of action?

1. Claims against Grissom as Receiver

Section 64.001 of the civil practice and remedies code states that a court of competent jurisdiction may appoint a receiver in an action by a creditor to subject any property or fund to his claim.  See Tex. Civ. Prac. & Rem.Code Ann. § 64.001(a)(2) (West, Westlaw through 2015 R.S.).  Subject to the control of the court, a receiver may: (1) take charge and keep possession of the property;  (2) receive rents;  (3) collect and compromise demands;  (4) make transfers;  and (5) perform other acts in regard to the property as authorized by the court.  Id. § 64.031.

The order appointing Grissom as receiver in this case, issued by the Montgomery County trial court, states in relevant part, that Grissom had the “power and authority” to take possession of all leviable property of Polvado including:

(1) all documents or records, including financial records related to such property that is in the actual or constructive possession or control of [Polvado];  (2) all financial accounts (bank account), certificates of deposit, money-market accounts, accounts held by any third party;  (3) all securities;  (4) all real property, equipment, vehicles, boats, and planes;  (5) all safety deposit boxes;  (6) all cash;  (7) all negotiable instruments, including promissory notes, drafts, and checks;  (8) causes of action or choses of action;  (9) contract rights, whether present or future;  and (10) accounts receivable and that all such property shall be held in custodial egis of [Grissom] as of the date of this Order.

Additionally, the Montgomery County trial court granted Grissom the “following rights, authority, and power” with respect to Polvado's property, to:

(1) collect all accounts receivable of [Polvado];  (2) change locks to all premises at which any property is situated;  (3) direct the delivery of mail directed to any business owned by [Polvado] to [Grissom's] address and open all mail directed to any business owned by [Polvado];  (4) endorse and cash all checks and negotiable instruments payable to [Polvado], except paychecks for current wages;  (5) hire a real estate broker to sell any real property and mineral interest belonging to [Polvado];  (6) hire any person or company to move and store the property of [Polvado];  (7) (but not the obligation) to insure any property belonging to [Polvado];  (8) obtain from any financial institution, bank, credit union, or savings and loan any financial records belonging to or pertaining to [Polvado];  (9) obtain from any landlord, building owner or building manager where [Polvado] or [Polvado's business] is a tenant copies of [Polvado's] lease, lease application, credit application, payment history and copies of [Polvado's] checks for rent or other payments;  (10) hire any person or company necessary to accomplish any right or power under this Order;  and (11) take all action necessary to gain access to all storage facilities, safety-deposit boxes, real property, and leased premises wherein any property of [Polvado] may be situated and to review and obtain copies of all documents related to same.

Grissom argues that he is entitled to derived judicial immunity against Glasstex's causes of action in this case.  We agree.  When entitled to the protection of derived judicial immunity, an officer of the court receives the same immunity as a judge acting in his or her official judicial capacity—absolute immunity from liability for judicial acts performed within the scope of jurisdiction.  Dallas Cty. v. Halsey, 87 S.W.3d 552, 554 (Tex. 2002).  The policy reasons for judicial immunity are also implicated when a judge delegates or appoints another person to perform services for the court or when a person otherwise serves as an officer of the court.  Id. In this circumstance, the immunity attaching to the judge follows the delegation, appointment, or court employment.  Id. Thus, the person acting in such capacity enjoys absolute immunity, known as derived judicial immunity.  Id.

It is true that a receiver who holds property in this state may be sued in his official capacity in a court of competent jurisdiction without permission of the appointing court, and a suit against a receiver may be brought where the person whose property is in receivership resides.  See id. § 64.052(a)–(b) (West, Westlaw through 2015 R.S.).  However, while some suits against receivers are permitted, this suit is not.  Compare Alpert v. Gerstner, 232 S.W.3d 117, 118 (Tex.App.—Houston [1st Dist.] 2006, pet. denied) (recognizing derived judicial immunity of court-appointing receivers but permitting a suit against a court-appointed receiver for breach of fiduciary duties) with Ramirez v. Burnside & Rishebarger, L.L.C., No. 04–04–00160–CV, 2005 WL 1812595, at *2 (Tex.App.—San Antonio Aug. 3, 2005, no pet.) (mem.op.) (affirming dismissal of action against court-appointed receiver under the derived judicial immunity doctrine).

Glasstex's pleadings assert three causes of action against Grissom:  (1) wrongful collection, (2) conversion, and (3) abuse of process.  Each of these causes of actions relate to Grissom's actions as an agent of the court pursuant to the Montgomery County trial court's turnover order and appointment of Grissom as receiver.4  When a receiver acts as an arm of the court and the suit is based on actions taken within the scope of the receiver's authority, as in this case, derived judicial immunity shields the court-appointed receiver.  See Halsey, 87 S.W.3d at 554;  see also Rehabworks, LLC v. Flanagan, No. 03–07–00552–CV, 2009 WL 483207, at *4 (Tex.App.—Austin Feb. 26, 2009, pet. denied) (mem.op.).  When immunity from suit exists, as in this case with regard to Grissom acting as a court-appointed receiver, the trial court is deprived of subject-matter jurisdiction.  See Reata Const.  Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex.2006).

2. Claims against Arch

In its live pleading before the Hidalgo County trial court, Glasstex seeks (1) an injunction against Grissom and Arch related to Grissom's collection efforts pursuant to the Montgomery County turnover order and (2) damages related to claims for wrongful collection, conversion, and abuse of process.  We will examine whether the trial court possessed subject-matter jurisdiction over each in turn.

First, with regard to Glasstex's request for an injunction against Arch, we note that section 65.023(b) of the civil practice and remedies code states that “a writ of injunction granted to stay proceedings in a suit or execution on a judgment must be tried in the court in which the suit is pending or the judgment was rendered.”  Tex. Civ. Prac. & Rem.Code Ann. § 65.023(b) (West, Westlaw through 2015 R.S.).  This section has been construed to ensure that comity prevails among the various Texas trial courts because orderly procedure and proper respect for the courts will require that attacks upon their judgments should be made in the court rendering such judgment, rather than in other courts indiscriminately.  Butron v. Cantu, 960 S.W.2d 91, 94 (Tex.App.—Corpus Christi 1997, no writ) (internal quotations omitted).  Furthermore, this statute controls not just venue, but also jurisdiction, so long as the judgment in question is valid on its face—that is, not void.  Id. A judgment is void only when it is apparent that the court rendering judgment had no jurisdiction of the parties, no jurisdiction of the subject matter, no jurisdiction to enter the judgment, or no capacity to act as a court.  Cook v. Cameron, 733 S.W.2d 137, 140 (Tex.1987).  Here, Glasstex seeks to enjoin Arch from executing its judgment based out of Montgomery County in Hidalgo County.  Further, nothing in the record shows that the Montgomery County judgment is invalid.  As a result, the Hidalgo County trial court lacked subject-matter jurisdiction to hear Glasstex's attempt to enjoin the execution of Arch's judgment based out of Montgomery County.  See Butron, 960 S.W.2d at 95.  Only the Montgomery County trial court from which the judgment emanated could enjoin the enforcement of Arch's judgment.  See Tex. Civ. Prac. & Rem.Code Ann. § 65.023(b);  Butron, 960 S.W.2d at 95.

Second, Glasstex's live pleading attributes all of Arch's liability for wrongful collection, conversion, and abuse of process, through Grissom, who acted “on behalf of [Arch],” during his collection efforts.5  When determining whether a trial court has subject-matter jurisdiction, we construe pleadings liberally in favor of the plaintiffs and look to the pleaders' intent.  See Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004).  However, as we noted earlier in this opinion, Grissom, as receiver, acted as the agent of the Montgomery County trial court and took action within the scope of his authority pursuant to the appointment order of that same trial court, not as an agent or an arm of Arch. See Spigener v. Wallis, 80 S.W.3d 174, 183 (Tex.App.—Waco 2002, no pet.);  see also Rehabworks, 2009 WL 483207, at *4. Furthermore, nothing else in Glasstex's pleadings allege that Arch's liability exists outside of Grissom, or through some other action taken by Grissom outside of the judicial process.  Therefore, Glasstex's pleadings affirmatively negate the existence of jurisdiction with regard to its claims for damages against Arch. See Miranda, 133 S.W.3d at 227.

C. Summary

In summary, we hold the following:  (1) challenges to subject-matter jurisdiction may not be waived by the parties, and may be raised for the first time on appeal;  (2) Grissom was immune to Glasstex's causes of actions against him acting as court-appointed receiver;  (3) the Hidalgo County trial court was without subject-matter jurisdiction to hear Glasstex's attempt to enjoin the execution of Arch's judgment based in Montgomery County because the judgment is not void;  and (4) Glasstex's pleadings affirmatively negated the existence of subject-matter jurisdiction with regard to its claims for damages against Arch. We overrule Glasstex's consolidated issue.6

III. Conclusion

We affirm the trial court's judgment.


2.   Glasstex presents the following issues for this Court's review:(1) Are complaints about lack of personal jurisdiction waived by filing an answer, without initially objecting to lack of personal jurisdiction?(2) Does a party any complaint [sic] about personal jurisdiction by obtaining discovery, and then filing a special appearance?(3) Are complaints about venue waived by filing an answer, without initially objecting to waiver?(4) Can venue, even mandatory venue be waived?(5) Can a defendant file an oral special appearance?(6) Can a defendant file an oral motion to transfer venue?(7) Is a defendant required to present evidence in support of a special appearance?(8) Do Texas Court[s] possess personal jurisdiction over Texas residents?(9) Is venue over a Hidalgo County resident proper in Hidalgo County?(10) When a motion is called a special appearance, and recites the test for a special appearance, seeks dismissal like a special appearance, can the defendant for the first time at the hearing claim the motion is not a special appearance?(11) Can a defendant obtain dismissal of a case by invoking some mystical claim for lack of jurisdiction, which is completely unrecognized in law and without even identifying the doctrine?(12) Can a party obtain relief on a ground never requested?(13) Can a party obtain relief on a ground never explained?(14) Is the remedy for improper venue transfer, or does Texas following [Federal Rule of Civil Procedure] 12(b)(3) and permit dismissals for want of proper venue?(15) Does the Texas Turnover Statute apply to third parties?(16) Does [Texas Rule of Civil Procedure] 71 permit a party to rewrite a motion, to contradict the plain language in the motion, and to assert matters, which were never contained therein?(17) Does the Hidalgo County Courts at Law possess jurisdiction over the controversies alleged to be within its jurisdictional limits?After reviewing each issue presented, we conclude that the dispositive issue in this case is whether the trial court properly dismissed Glasstex's causes of action for want of jurisdiction. Therefore, we will solely address that issue, and discuss any other issues presented by Glasstex which may relate to that controlling issue.  See Tex. R. App. P. 47.1.

3.   This case has been abated since February 16, 2010 due to Arch Aluminum and Glass Co. Inc.'s suggestion of bankruptcy.  See 11 U.S.C. § 362; see generally Tex. R. App. P. 8. After receiving periodic status updates from the parties in this case, this Court reinstated this appeal on December 18, 2015 for full consideration on its merits.

4.   We are unpersuaded by Glasstex's arguments that because it was not the judgment debtor in the underlying Montgomery County action, it suffered damages as a result of Grissom and Arch's actions. Although the turnover statute does not apply to non-judgment debtors, see Beaumont Bank N.A. v. Buller, 806 S.W.2d 223, 227 (Tex. 1991), property owned by judgment debtors is not out of the reach of the turnover statute merely because it is held by third-parties. See Tex. Civ. Prac. & Rem. Code Ann. § 31.002(b)(1) (West, Westlaw through 2015 R.S.).  Additionally, third-parties potentially aggrieved by the turnover order have a right to appellate review of the turnover order to protect their affected property interests.  See Int'l Paper Co. v. Garza, 872 S.W.2d 18, 19 (Tex. App.—Corpus Christi 1994, no writ).

5.   Specifically, Glasstex makes the following allegations:On or about March 24, 2006, Defendant Grissom on behalf of Defendant [Arch]. came to Plaintiff's premises under color of authority.  Specifically, Defendant Grissom appeared at Plaintiff's place of business and locked the doors. Defendant Grissom thereafter proceeded to confiscate items more properly belonging to Plaintiff. None of the items taken by Defendant Grissom on behalf of Defendant [Arch] belong to ․ [Polvado].

6.   Three motions remain pending in this case. The first is a motion for sanctions filed by Glasstex on grounds that Arch and Grissom have presented frivolous arguments to this Court. After due consideration, we deny Glasstex's motion for sanctions.  The remaining two motions were filed by Arch requesting this Court to dismiss this appeal for want of prosecution and lack of jurisdiction. Those motions are hereby dismissed as moot.

Memorandum Opinion by Justice Benavides

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