Don’t Hop to DWOP

Enxeco Inc. v. Staley reversed a dismissal for want of prosecution, observing: “[T]he rules of judicial administration provide that civil non-jury cases should be brought to trial or final disposition within twelve months from the defendant’s appearance date. The administrative rules expressly recognize, however, that in complex cases or special circumstances ‘it may not be possible to adhere to these standards.'” (citations omitted). Here, such circumstances were presented by lengthy motion practice about forum and capacity issues. The Court gave little weight to plaintiff’s decision to not pursue discovery, noting that no rule compelled it to do so. No. 05-15-01047-CV (Jan. 9, 2017) (mem. op.)

Appealed too soon –

toosoonA classic example of a “too soon” appeal appears in Bolden v. Fidelity Nat’l Title: “In the original petition, appellee sought both damages for breach of warranty of title and attorney’s fees. The trial court signed a default judgment awarding damages for TexasBarToday_TopTen_Badge_VectorGraphicbreach of warranty of title. The default judgment is silent as to appellee’s claim for attorney’s fees. Because the claim for attorney’s fees remains pending, the judgment is not final.” No. 05-16-00398-CV (Oct. 14, 2016) (mem. op.)

Stopping time: invoking lack of notice to preserve post-judgment relief


In In re: Douglas D. Halofitis, No. 05-16-01047-CV (Sept. 27, 2016) (mem. op.), the Fifth Court gives a helpful roadmap for parties who seek to challenge a judgment of which they were given late notice.  We know that trial courts usually lose plenary jurisdiction over a judgment within 30 days after the court signs the judgment, which is also the deadline for filing an appeal. But what if you don’t receive notice of the judgment?

Under Rule 306a, when a party does not receive notice or acquire actual knowledge of judgment within twenty days, the deadlines begin to run not from the signing of the judgment, but instead from the sooner of the date the party received notice or acquired actual knowledge of the judgment or 90 days after the judgment was signed. A few pointers to keep in mind:

  1. the 306a motion must be sworn and must establish the date of first notice or knowledge of the judgment and that this date was more than 20 days after the judgment was signed;
  2. the 306a motion, including any evidentiary supplements necessary to satisfy the procedural requirements of 306a(5), must be filed within the court’s plenary period as calculated from the date of first notice or knowledge of the judgment;
  3. the movant should seek an immediate evidentiary hearing on the 306a motion and obtain a finding of fact of the date of first notice or actual knowledge of the judgment;
  4. in no event will the periods begin to run more than 90 days after the judgment is signed, meaning that if you receive notice more than 90 days after the judgment is signed, your only avenue may be a restricted appeal or bill of review; and
  5. the 306a motion should be coupled with a post-judgment motion, e.g. motion for new trial, motion to reinstate, or motion to modify judgment. If you wait for a decision on your 306a motion, your post-judgment motion may end up being untimely even if your Rule 306a motion is successful because post-judgment motions must still be filed within 30 days of the date found to be the date of first notice or actual knowledge of the judgment.


Pick a side, any side –

two sideDharma and Hahn divorced.  The trial court entered a final decree. Dharma appealed the trial court division of property; primarily, an interest in her medical practice.  Hahn argued that she accepted the benefits of the decree by selling a related entity and encumbering the practice’s assets, and the Fifth Court agreed, finding that she “exercised control over substantial assets she received in the trial court’s property division.”  The Court rejected an argument that the “acceptance of benefits” doctrine did not apply, based on her view of what would likely happen on remand, because that did not establish an “unquestionable” right as required by the limits on that doctrine.  In re S.B.H., No. 05-14-00585-CV (Feb. 5, 2016) (mem. op.)

Old Judgment Leads to Loss of Claims in Current Litigation

For over a decade, Sun Tec Computer has been tied up in litigation with its officers and shareholders in Tarrant County. At least one of those former officers formed Tax Debt Acquisition Company and used it to purchase an unpaid judgment against Sun Tec, then filed an application for a turnover order in Dallas County to enforce the judgment. The turnover order was not appealed, and the receiver auctioned off Sun Tec’s claims against the Tarrant County litigants to TDAC. That act of legal jujitsu meant that Sun Tec could no longer proceed with its claims against the shareholders and officers. Sun Tec filed a new suit for a declaratory judgment that the turnover order and the sale of its claims were invalid, but the trial court granted summary judgment for the defendants. The Court of Appeals affirmed, holding that the declaratory judgment was an invalid collateral attack on the turnover order, and that the order itself was not void.

Sun Tec Computer, Inc. v. Recovar Group, LLC, No. 05-14-00257-CV


A guarantor ignored the efforts of a court-appointed receiver to collect on an agreed judgment and subsequent turnover orders. The debtor eventually paid the judgment, but Frost Bank sought recovery of additional attorney fees incurred in enforcing the judgment. The trial court awarded $160,000 in attorney fees and approved the receiver’s fee of $129,000. The Court of Appeals reversed as to the attorney fees, holding that fees could not be recovered based on the contractual guarantee because the bank’s claims under that instrument were merged with and extinguished by the final judgment. Nor could post-judgment attorney fees be awarded under the turnover statute because the defendant had actually paid the judgment. However, the trial court did not abuse its discretion in approving the receiver’s fee — calculated as 10% of the sale proceeds from the defendant’s stock — as the court had conducted a hearing and determined that the fee was fair, reasonable, and necessary.

Evans v. Frost Nat’l Bank, No. 05-12-01491

It Turns Out You Can Execute Judgment on a Website

After obtaining a judgment against the guarantor of a $250,000 debt, plaintiff Elexis Rice sought a turnover order for certain intangible items of property, including internet domain names and website registrations using the name “cre8stone.” Cre8 International — which was not the judgment debtor — appeared in court to contest the turnover, contending that the domains were its own property. The trial court concluded otherwise, and the Court of Appeals affirmed that aspect of the turnover order. Although a trial court cannot ordinarily adjudicate third parties’ ownership rights in a turnover proceeding, the appearance of that third party in court rendered it subject to the trial court’s ruling on the matter. However, Cre8 managed to retain its email addresses and telephone number, as there was no evidence in the record showing that they were actually owed by the judgment debtor.

Cre8 Int’l, LLC v. Rice, No. 05-14-00377-CV


Signs Point to No Jurisdiction

Sign Effects Sign Company (the redundancy is sic) obtained a $22,000 default judgment in Ohia against Six years later, SESC sought to domesticate that judgment in Texas. SignWarehouse argued that the Ohio judgment was invalid because the company was not subject to personal jurisdiction in that state. The trial court and the Dallas Court of Appeals agreed. Relying on Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777 (Tex. 2005), the Court of Appeals held that simply shipping purchased good to another state was insufficient to establish minimum contacts for specific personal jurisdiction, particularly where the parties’ contract specified that venue for any dispute was to be in Grayson County.

Sign Effects Sign Co., LLC v., No. 05-12-01301-CV

Post-Judgment Turnover Order Affirmed

In this memorandum opinion on an attempt to satisfy a judgment, the Court of Appeals held that the judgment creditor could obtain the income paid to appellant, an attorney, by his law firm pursuant to a turnover order issued by the trial court.  Although the appellant argued that this income was “exempt” under the relevant statute because he essentially acted as an independent contractor, the Court rejected this argument given that the appellant failed to offer any evidence concerning right of control.

Karlseng v. Wells Fargo, N.A.

Equitable Title Trumps Judgment Lien

Lorrie Smith filed suit for judicial foreclosure of a judgment lien against three lots in a Frisco subdivision. Smith had obtained her judgment against Shaddock Builders & Developers, and she recorded an abstract of the judgment on July 15, 2010. Two years earlier, Shaddock had acquired the three lots and immediately conveyed them to another company, Basin, Ltd. The conveyance from Shaddock to Basin was recorded, but the original sale to Shaddock went unrecorded until the seller corrected its “oversight” exactly one day before Smith recorded her judgment lien. Shortly thereafter, Basin conveyed the lots to Sumeer Homes, which built houses and sold the lots to the current homeowners. Each of those subsequent transactions was recorded. Seeking to foreclose on the lots in order to collect on her judgment against Shaddock, Smith sued the homebuilder, the homeowners, their mortgage lenders, and the title company. The defendants moved for and obtained summary judgment against Smith.

On appeal, Smith argued that the conveyance to Shaddock had been fraudulently backdated, and that it had really been filed the day after she recorded her judgment lien. According to Smith, that meant that legal title to the property had not been transferred to Shaddock until after she filed her lien, therfore making the three lots subject to her claim. The court of appeals rejected that argument. Although “legal title” to property serves as evidence of ownership, it does not constitute full and complete title to the property. What really matters when it comes to a judgment creditor’s lien is equitable title to the property, which passes to the purchaser when it pays the purchase price and fulfills the obligations of the contract of sale. In this case, Shaddock had acquired equitable title to the lots three years before Smith recorded her lien, and Shaddock had immediately transferred that title to Basin. Equitable title is a complete defense against the lien of a judgment creditor. Because Basin had acquired equitable title long before Smith acquired her judgment against Shaddock, that title subsequently passed to Sumeer Homes and the subsequent homebuyers free and clear of Smith’s judgment judgment against Shaddock. Nor did Shaddock hold “legal title” to the three lots on the day Smith recorded her lien. The summary judgment evidence showed that the original seller had recorded the sale the day before, and because Shaddock had conveyed the property to Basin by warranty title two years earlier, legal title to the property passed instantly to Basin when the sale to Shaddock was finally recorded. The court of appeals therefore affirmed the trial court’s grant of summary judgment.

Smith v. Sumeer Homes, Inc., No. 05-11-01632-CV