in Re Old American County Mutual Fire Insurance Company ( 2014 )

NUMBER 13-14-00231-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE OLD AMERICAN COUNTY MUTUAL FIRE INSURANCE
COMPANY
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Justices Garza, Benavides, and Perkes
Memorandum Opinion by Justice Perkes1
Relator, Old American County Mutual Fire Insurance Company (“Old American”),
filed a petition for writ of mandamus in the above cause on April 21, 2014 contending that
the trial court2 abused its discretion in denying Old American’s plea to the jurisdiction.
1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
2The respondent in this original proceeding is the Honorable Federico Garza Jr., Presiding Judge
of the County Court at Law No. Four of Hidalgo County, Texas.
Specifically, Old American asserts that the trial court’s plenary power expired before
Melissa Rosales, the real party in interest, attempted to add Old American as a defendant
to the underlying turnover proceedings, and the trial court may not adjudicate Old
American’s substantive rights in the turnover proceeding. See TEX. CIV. PRAC. & REM.
CODE ANN. § 31.002 (West, Westlaw through 2013 3d C.S.). We conditionally grant the
petition for writ of mandamus.
I. BACKGROUND
Rosales was involved in an automobile accident with Maria Elide Moreno and
Alfredo Moreno. Lindsay General Insurance Agency, LLC (“Lindsay General”) issued the
Morenos’ automobile insurance policy as a managing general agent for Old American.
Rosales filed suit against the Morenos in County Court at Law No. Four of Hidalgo County,
Texas. The Morenos failed to answer or appear. On February 5, 2009, Rosales obtained
a default judgment against the Morenos for $749,000 for the personal injuries that she
sustained in the accident.
On or about February 1, 2010, Rosales filed an application for turnover relief
seeking turnover of any and all causes of action owned by the Morenos against Lindsay
General. According to the application for turnover relief, “although duly notified of the
lawsuit,” Lindsay General failed to provide a defense for the Morenos by failing to answer
the lawsuit, failing to file a motion for new trial, and allowing the judgment against the
Morenos to become final.
On or about August 11, 2010, Rosales filed a first amended application for turnover
relief, again seeking turnover of the Morenos’ causes of action against Lindsay General,
but also seeking turnover of any and all causes of action owned by the Morenos against
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Old American. In her amended application, Rosales asserted that the trial court
“possesses jurisdiction pursuant to its inherent authority to enforce its judgment and
pursuant to the Turnover Statute,” and “[o]nce assignment is granted, [Rosales] is also
stating a cause of action against Respondents Lindsay General and Old American.” The
amended application includes specific causes of action against Lindsay General and Old
American for, inter alia, breach of contract, negligence, and breach of the duty to defend.
The amended application includes a request for citation and service on Old American.
In response to the amended application, Old American and Lindsay General filed
an “Original Answer, Special Exceptions, and Response.” This pleading included the
specific denial that Old American and Lindsay General “are not proper parties” to the
turnover proceeding. According to the answer, the turnover statute does not grant the
trial court jurisdiction over third parties, authorize the trial court to require a third party to
act, or allow for a determination of the merits of any actual or potential claims against third
parties or the substantive rights and obligations of third parties. Old American asserted
that the trial court lacked jurisdiction over it and Rosales was required to file a new and
separate lawsuit against it if the trial court granted turnover relief in her favor.
On October 25, 2010, the trial court signed an order granting Rosales’s first
amended application for turnover relief and ordered that “any and all causes of action
which Maria Elide Moreno and/or Alfredo Moreno possess [against Old American],
including any cause of action for failure to defend and Stowers cause of action” are
assigned to Rosales “who can prosecute such claims.” See G.A. Stowers Furniture Co.
v. Am. Indem. Co., 15 S.W.2d 544, 547 (Tex. Comm’n App. 1929, holding approved); see
also Tex. Farmers Ins. Co. v. Soriano, 881 S.W.2d 312, 314 (Tex. 1994).
3
On March 15, 2013, Rosales filed a motion for summary judgment against Old
American on her Stowers cause of action. On April 24, 2013, Old American filed a
response to the motion for summary judgment reiterating its claims that the trial court
lacked jurisdiction over it as a non-party to the turnover proceeding.
On or about April 25, 2013, Old American filed a plea to the jurisdiction in which it
contended, inter alia, that the trial court lacked jurisdiction because “a plaintiff cannot use
a turnover proceeding to assert causes of action against a non-party to the underlying
proceeding” after the trial court has lost plenary jurisdiction. On July 10, 2013, Rosales
filed a response to the plea in which she asserted that the trial court had jurisdiction to
enforce its judgment and the lawsuit “is merely part of the collection efforts, which it is
expressly authorized to adjudicate.” Rosales asserted that her amended application for
turnover relief, which she referred to as a “petition,” “clearly seeks adjudication of such
assigned claims in a separate trial, and not as part of [her] requested turnover relief.”
On July 10, 2013, the trial court held a hearing on Rosales’s motion for summary
judgment and Old American’s plea to the jurisdiction. On July 29, 2013, the trial court
denied Rosales’s motion for summary judgment, but did not immediately rule on Old
American’s plea to the jurisdiction. Rosales thereafter propounded written discovery
requests to Old American. On November 27, 2013, Old American filed a motion for
protective order regarding the discovery requests.
On December 16, 2013, the trial court held a hearing on Old American’s motion
for protective order and an additional hearing on its plea to the jurisdiction. By order
signed on April 4, 2014, the trial court denied Old American’s plea to the jurisdiction, but
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granted the motion for protective order for the purpose of allowing Old American to seek
review regarding the denial of its plea to the jurisdiction.
This original proceeding ensued. By two issues, Old American asserts that the
trial court clearly abused its discretion in denying the plea to the jurisdiction and that it
lacks an adequate remedy by appeal. This Court requested and received a response to
the petition for writ of mandamus from Rosales, and has also received a reply thereto
from Old American.
II. STANDARD OF REVIEW
Mandamus is appropriate when the relator demonstrates that the trial court clearly
abused its discretion and the relator has no adequate remedy by appeal. In re Reece,
341 S.W.3d 360, 364 (Tex. 2011) (orig. proceeding); In re Prudential Ins. Co. of Am., 148
S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). The relator has the burden of
establishing both prerequisites to mandamus relief, and this burden is a heavy one. In re
CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding).
A trial court clearly abuses its discretion if it reaches a decision that is so arbitrary
and unreasonable that it amounts to a clear and prejudicial error of law or if it clearly fails
to analyze the law correctly or apply the law correctly to the facts. In re Cerberus Capital
Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam). The
adequacy of an appellate remedy must be determined by balancing the benefits of
mandamus review against the detriments. In re Team Rocket, L.P., 256 S.W.3d 257, 262
(Tex. 2008) (orig. proceeding). Because this balance depends heavily on circumstances,
it must be guided by the analysis of principles rather than the application of simple rules
that treat cases as categories. In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 464 (Tex.
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2008) (orig. proceeding). We evaluate the benefits and detriments of mandamus review
and consider whether mandamus will preserve important substantive and procedural
rights from impairment or loss. In re Prudential Ins. Co. of Am., 148 S.W.3d at 136.
III. ANALYSIS
As stated previously, Old American contends that the trial court committed a clear
abuse of discretion by denying the plea to the jurisdiction. In connection with this issue,
Old American asserts that the trial court’s plenary power expired before Rosales
attempted to add Old American as a defendant in the underlying turnover proceedings
and a trial court may not adjudicate a third party’s substantive rights in a turnover
proceeding. In contrast, Rosales asserts that the trial court has the jurisdiction to enforce
its own judgments and to adjudicate claims; that Texas policy favors the liberal joinder of
claims; and that she is allowed to join her turnover action and assertion of the claims
subject to turnover in one cause of action.3 Rosales asserts that even if the joinder of
these claims was improper, the error would be procedural in nature rather than
jurisdictional.
3
More specifically, Rosales raises eleven issues in her response to the petition for writ of
mandamus:
(1) Is mandamus an exceptional remedy, strictly limited in its application?
(2) Is a litigant the master of his own pleadings?
(3) Is this Court bound by the record as it finds it, or can it rewrite the record?
(4) Can a relator obtain mandamus relief by distorting the underlying record?
(5) Does County Court at Law No. 4 possess jurisdiction to adjudicate claims?
(6) Does a trial court possess jurisdiction to enforce its decrees?
(7) Does Texas follow a policy of liberal joinder?
(8) Can a party join his claims seeking assignment of a judgment debtor’s claims, and
the adjudication of claims resulting from the assignment?
(9) Are procedural errors jurisdictional?
(10) Is joinder jurisdictional?
(11) Does an error in joinder of parties and/or claims render the resulting judgment
void?
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A. PLENARY JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS
A trial court retains plenary 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 period of time, the trial court’s plenary
jurisdiction may be extended by the timely filing of an appropriate post-judgment motion,
such as a motion for new trial or a motion to modify, correct, or reform the judgment. See
TEX. R. CIV. P. 329b(e),(g); Lane Bank Equip. Co., 10 S.W.3d at 310. In any event, the
court’s plenary power may not be extended more than 105 days after the judgment was
signed. Lane Bank Equip. Co., 10 S.W.3d at 310. Outside its plenary power, the actions
that a trial court may take with respect to its judgment are limited. Custom Corporates,
Inc. v. Sec. Storage, Inc., 207 S.W.3d 835, 839 (Tex. App.—Houston [14th Dist.] 2006,
no pet.) (combined app. & orig. proceeding); Madeksho v. Abraham, Watkins, Nichols &
Friend, 112 S.W.3d 679, 686 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). A
judgment or order rendered after plenary power has expired is void. In re Brookshire
Grocery Co., 250 S.W.3d 66, 68–69 (Tex. 2008) (orig. proceeding); In re Sw. Bell Tel.
Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding); Dikeman v. Snell, 490 S.W.2d
183, 186 (Tex. 1973) (orig. proceeding); Rawlins v. Rawlins, 324 S.W.3d 852, 855 (Tex.
App.—Houston [14th Dist.] 2010, no pet.).
Even after plenary power has expired, however, a trial court retains the inherent
power to enforce its judgments. See TEX. R. CIV. P. 308 (“The court shall cause its
judgments and decrees to be carried into execution.”); id. R. 621 (“The judgments of the
district, county, and justice courts shall be enforced by execution or other appropriate
process.”); Arndt v. Farris, 633 S.W.2d 497, 499 (Tex. 1982) (“The general rule is that
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every court having jurisdiction to render a judgment has the inherent power to enforce its
judgments.”). In enforcing a judgment; however, the trial court may not issue an order
that is inconsistent with the original judgment or that otherwise constitutes a “material
change in substantial adjudicated portions of the judgment.” Black v. Shor, No. 13-11-
00570-CV, 2013 WL 1687538, at *2 (Tex. App.—Corpus Christi Apr. 18, 2013, pet.
denied) (quoting Katz v. Bianchi, 848 S.W.2d 372, 374 (Tex. App.—Houston [14th Dist.]
1993, orig. proceeding [leave denied])); see Bahar v. Lyon Fin. Servs., Inc., 330 S.W.3d
379, 387 (Tex. App.—Austin 2010, pet. denied); Custom Corporates, Inc., 207 S.W.3d at
838; Matz v. Bennion, 961 S.W.2d 445, 452 (Tex. App.—Houston [1st Dist.] 1997, writ
denied). “In addition, post-judgment orders may not require performance of obligations
in addition to the obligations imposed by the final judgment.” Custom Corporates, Inc.,
207 S.W.3d at 838; see Bank One, N.A. v. Wohlfahrt, 193 S.W.3d 190, 195 (Tex. App.—
Houston [1st Dist.] 2006, no pet.). “This is particularly true when such orders purport to
adjudicate the rights of non-parties.” Custom Corporates, Inc., 207 S.W.3d at 838.
The trial court rendered final judgment in the case on February 5, 2009. The trial
court signed the turnover order against Old American on October 25, 2010, almost twenty
months later. The trial court’s plenary power had unquestionably expired by the time it
issued the October 25, 2010 turnover order. See TEX. R. CIV. P. 329b(e), (g); Lane Bank
Equip. Co., 10 S.W.3d at 310. Any document filed after the expiration of the trial court’s
plenary jurisdiction, other than a motion to enforce or clarify, would be a nullity because
a suit ends when the trial court’s plenary power over the proceeding ends. See Thomas
v. Oldham, 895 S.W.2d 352, 356 (Tex. 1995). “The very purpose of limiting a trial court’s
plenary power over a proceeding is to foreclose the possibility of a suit continuing
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indefinitely even though a final judgment has been obtained.” Malone v. Hampton, 182
S.W.3d 465, 470 (Tex. App.—Dallas 2006, no pet.).
Rosales contends that the trial court’s turnover order was issued in accordance
with its inherent power to adjudicate claims and to enforce its judgment. In addition to the
express grants of judicial power to the courts, trial courts possess certain “inherent
powers” which are “woven into the fabric of the constitution.” Eichelberger v.
Eichelberger, 582 S.W.2d 395, 398 (Tex. 1979); see Assignees of Best Buy v. Combs,
395 S.W.3d 847, 861 (Tex. App.—Austin 2013, pet. denied). The inherent powers of a
court are those which it may call upon to aid in the exercise of its jurisdiction, in the
administration of justice, and in the preservation of its independence and integrity. See
Eichelberger, 582 S.W.2d at 398. The power exists to enable our courts to effectively
perform their judicial functions and to protect their dignity, independence and integrity. Id.
at 398–99. However, inherent power is not a substitute for plenary power. See Lane
Bank Equip. Co., 10 S.W.3d at 311; In re Tex. Dep’t of Family & Protective Servs., 415
S.W.3d 522, 530 (Tex. App.—Houston [1st Dist.] 2013, no pet.); Hjalmarson v. Langley,
840 S.W.2d 153, 155 (Tex. App.—Waco 1992, orig. proceeding); see also State Bar of
Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994) (explaining that a trial court’s inherent
powers are administrative in nature and not jurisdictional). Accordingly, given that the
trial court’s actions were taken outside of its plenary jurisdiction and “inherent power” does
not provide a basis for its actions, we must determine whether the trial court’s actions in
rendering the turnover order against Old American, and its subsequent orders retaining
jurisdiction over Old American, were issued in accordance with its power to enforce its
judgment.
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B. TURNOVER ORDERS
A “turnover” order is a statutory procedural device through which judgment
creditors may reach assets of a judgment debtor that are otherwise difficult to attach or
levy by ordinary legal process. See TEX. CIV. PRAC. & REM. CODE ANN. § 31.002;
Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 224 (Tex. 1991); Moyer v. Moyer, 183
S.W.3d 48, 52 (Tex. App.—Austin 2005, no pet). The turnover statute is “purely
procedural in nature.” Beaumont Bank, N.A., 806 S.W.2d at 227; see Europa Int’l, Ltd. v.
Direct Access Trader Corp., 315 S.W.3d 654, 656 (Tex. App.—Dallas 2010, pet. denied);
Republic Ins. Co. v. Millard, 825 S.W.2d 780, 783 (Tex. App.—Houston [14th Dist.] 1992,
orig. proceeding). The turnover statute permits judgment creditors to reach property that
is in the possession of the debtor or subject to the debtor’s control. See Haden v. David
J. Sacks, P.C., 332 S.W.3d 523, 531 (Tex. App.—Houston [1st Dist.] 2009, pet. denied);
Bay City Plastics, Inc. v. McEntire, 106 S.W.3d 321, 325 (Tex. App.—Houston [1st Dist.]
2003, pet. denied).
To obtain relief under the turnover statute, a judgment creditor must prove: (1) the
judgment debtor owns property, including present or future rights to property; (2) the
property is not exempt from attachment, execution, or seizure; and (3) the property
“cannot readily be attached or levied on or by ordinary legal process.” TEX. CIV. PRAC. &
REM. CODE ANN. § 31.002; see Europa Int’l, Ltd., 315 S.W.3d at 656. A turnover order is
proper if the conditions of the statute are met. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 31.002; Tanner v. McCarthy, 274 S.W.3d 311, 322 (Tex. App.—Houston [1st Dist.]
2008, no pet.). Upon finding that the elements of section 31.002(a) are satisfied, a trial
court has discretion to issue a range of remedies, including ordering the judgment debtor
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to turn over nonexempt property that is in the debtor’s possession, or is subject to the
debtor’s control, to a designated sheriff or constable for execution, and “appointing a
receiver with the authority to take possession of the nonexempt property, sell it, and pay
the proceeds to the judgment creditor to the extent required to satisfy the judgment.” TEX.
CIV. PRAC. & REM. CODE ANN. § 31.002(b). The turnover order itself need not specify the
property subject to turnover. Id. § 31.002(h); Tanner, 274 S.W.3d at 322.
There are two general limitations on the use of turnover orders that are applicable
in the instant case. First, as a purely procedural device, the turnover statute may not be
used to determine substantive rights. See Partain v. Maples, No. 13-12-00267-CV, 2013
WL 1914933, at *2 (Tex. App.—Corpus Christi May 9, 2013, no pet.); D & M Marine, Inc.
v. Turner, 409 S.W.3d 853, 857 (Tex. App.—Fort Worth 2013, no pet.); Cross, Kieschnick
& Co. v. Johnston, 892 S.W.2d 435, 438 (Tex. App.—San Antonio 1994, no writ); Republic
Ins. Co., 825 S.W.2d at 783; Cravens, Dargan & Co. v. Peyton L. Travers Co., 770 S.W.2d
573, 576 (Tex. App.—Houston [1st Dist.] 1989, writ denied); see also Woody K. Lesikar
Special Trust v. Moon, No. 14-10-00119-CV, 2011 WL 3447491, at **5–7 (Tex. App.—
Houston [14th Dist.] Aug. 9, 2011, pet. denied) (mem. op.). Second, the turnover statute
may not be used to determine the property rights of third parties. See Resolution Trust
Corp. v. Smith, 53 F.3d 72, 78, 79 (5th Cir. 1995); Beaumont Bank, N.A., 806 S.W.2d at
227; Turner Bros. Trucking, L.L.C. v. Baker, 396 S.W.3d 672, 674 (Tex. App.—Dallas
2013, no pet.); B.Z.B., Inc. v. Clark, 273 S.W.3d 899, 904 (Tex. App.—Houston [14th
Dist.] 2008, no pet.); In re Alsenz, 152 S.W.3d 617, 623 (Tex. App.—Houston [14th Dist.]
2004, orig. proceeding); Lozano v. Lozano, 975 S.W.2d 63, 68 (Tex. App.—Houston [14th
Dist.] 1998, pet. denied); Cross, Kieschnick & Co., 892 S.W.2d at 439; Republic Ins. Co.,
11
825 S.W.2d at 783; Cravens, Dargan & Co., 770 S.W.2d at 576–77; United Bank Metro
v. Plains Overseas Group, Inc., 670 S.W.2d 281, 284 (Tex. App.—Houston [1st Dist.]
1983, no writ); Steenland v. Tex. Commerce Bank Nat’l Ass’n, 648 S.W.2d 387, 390–91
(Tex. App.—Tyler 1983, writ ref’d n.r.e.); see also Elgohary v. Herrera Partners, L.P., No.
01-13-00193-CV, 2014 WL 2538556, at *3 (Tex. App.—Houston [14th Dist.] June 5, 2014,
no pet.) (mem. op.); In re Karlseng, No. 05-14-00049-CV, 2014 WL 1018321, at *2 (Tex.
App.—Dallas Feb. 12, 2014, orig. proceeding) (mem. op.).4 More specifically, the
turnover statute does not create a right in the judgment creditors and debtors to initiate
and incorporate in the turnover proceedings an entirely different law suit against a third
4 Courts, including our own, have had some difficulty in construing the Texas Supreme Court’s
decisions regarding the application of the turnover statute to third parties. Compare Beaumont Bank, N.A.
v. Buller, 806 S.W.2d 223, 226 (Tex. 1991), with Schultz v. Fifth Jud. Dist. Ct. of App., 810 S.W.2d 738,
740 (Tex. 1991), abrogated on other grounds, In re Sheshtawy, 154 S.W.3d 114 (Tex. 2004) (per curiam).
In Beaumont Bank, the supreme court held that “Texas courts do not apply the turnover statute to non-
judgment debtors.” 806 S.W.2d at 227. In Schultz, the supreme court held that a turnover order which
acted in the nature of a mandatory injunction was appealable. Schultz, 810 S.W.2d at 740. In so holding,
the court stated that turnover orders could be issued “against one or more parties other than the judgment
debtor” and that they act as a “mandatory injunction against the judgment debtor” and “against the receiver
and any third parties interested in the property rights being adjudicated.” Id. Subsequently, however, the
supreme court appeared to indicate otherwise. “A turnover order that issues against a non-party for
property not subject to the control of the judgment debtor completely bypasses our system of affording due
process. Otherwise, a court could simply order anyone (a bank, an insurance company, or the like) alleged
to owe money to a judgment debtor to hand over cash on threat of imprisonment.” Ex parte Swate, 922
S.W.2d 122, 125 (Tex. 1996) (J. Gonzales, concurring). A minority of courts, mostly following Schultz, have
thus recognized a limited exception to the general rule prohibiting turnovers from being issued against
parties other than the judgment debtor. These cases have held that under certain circumstances, a turnover
order may issue against a third party where the third party retains non-exempt property owned by a
judgment debtor and subject to the debtor’s possession or control. See, e.g., Barrera v. State, 130 S.W.3d
253, 259–60 (Tex. App.—Houston [14th Dist.] 2004, no pet.); Lozano v. Lozano, 975 S.W.2d 63, 68 (Tex.
App.—Houston [14th Dist.] 1998, pet. denied); Dale v. Fin. Am. Corp., 929 S.W.2d 495, 498 (Tex. App.—
Fort Worth 1996, writ denied); Plaza Court, Ltd. v. West, 879 S.W.2d 271, 276–77 (Tex. App.—Houston
[14th Dist.] 1994, no writ); Int’l Paper Co. v. Garza, 872 S.W.2d 18, 19 (Tex. App.—Corpus Christi 1994,
no writ); Norsul Oil & Min. Ltd. v. Commercial Equip. Leasing Co., 703 S.W.2d 345, 349 (Tex. App.—San
Antonio, writ denied); see also Premier Trailer Leasing, Inc. v. GTR Rental L.L.C., No. 02-09-00449-CV,
2011 WL 1901980, at *1 (Tex. App.—Fort Worth May 19, 2011, no pet.). The minority viewpoint has been
subject to criticism. See, e.g., Maiz v. Virani, 311 F.3d 334, 346 (5th Cir. 2002); Parks v. Parker, 957
S.W.2d 666, 668 (Tex. App.—Austin 1997, no pet.). We need not explore the viability of this minority view
or any potential application to this case because neither party has raised this issue or urged that this view
applies under the circumstances present in this case. Moreover, as discussed infra, whether or not a
turnover order can issue against a third party, it cannot be utilized to adjudicate that third party’s substantive
rights in the original lawsuit after the expiration of plenary power.
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party who is not a part of the original judgment. B.Z.B., Inc., 273 S.W.3d at 904;
Kothmann v. Cook, 113 S.W.3d 471, 475 (Tex. App.—Amarillo 2003, no pet.); Republic
Ins. Co., 825 S.W.2d at 783. As stated by this Court more than twenty years ago, “[a]
court errs if it allows the judgment creditor to haul the potential defendant into the turnover
action.” Charles v. Tamez, 878 S.W.2d 201, 204 n.2 (Tex. App.—Corpus Christi 1994,
writ denied). Thus, a judgment may be enforced against a non-party to the judgment only
by bringing a separate suit alleging a basis for enforcing the judgment against that party.
Bollore S.A. v. Imp. Warehouse, Inc., 448 F.3d 317, 324 (5th Cir. 2006); Maiz v. Virani,
311 F.3d 334, 336 (5th Cir. 2002); Resolution Trust Corp., 53 F.3d at 80; Gerjets v. Davila,
116 S.W.3d 864, 869 (Tex. App.—Corpus Christi 2003, no pet.); Bay City Plastics, Inc.,
106 S.W.3d at 324–25; Cross, Kieschnick & Co., 892 S.W.2d at 439; United Bank Metro,
670 S.W.2d at 284; see also In re Karlseng, 2014 WL 1018321, at *2.
The underlying “Final Judgment” is between Rosales and Maria Elide Moreno and
Alfredo Moreno. Old American was not a party to this judgment; nevertheless, the trial
court’s turnover order was issued against Old American. Rosales’s first amended
application for turnover relief sought turnover of the Morenos’ causes of action against
Old American and stated that “[o]nce assignment is granted” Rosales was also asserting
causes of action against Old American for, inter alia, breach of contract, negligence, and
breach of the duty to defend. The October 25, 2010 order granting turnover relief
assigned the Morenos’ causes of action against Old American to Rosales “who can
prosecute such claims.” Rosales has proceeded to seek discovery from Old American in
this cause and has also sought relief on the merits against Old American by motion for
summary judgment in this same turnover proceeding.
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We conclude that the trial court abused its discretion in entering the turnover order
against Old American, as a third party to that judgment, and allowing the litigation to
proceed against Old American in that same cause. The turnover statute does not create
a right for Rosales to initiate and incorporate in the turnover proceedings an entirely
different lawsuit against Old American, a third party who is not part of the original
judgment. B.Z.B., Inc., 273 S.W.3d at 904; Kothmann, 113 S.W.3d at 475; Republic Ins.
Co., 825 S.W.2d at 783. As a purely procedural device, the turnover statute may not be
used to determine Old American’s substantive rights. See, e.g., Partain, 2013 WL
1914933, at *2; D & M Marine, Inc., 409 S.W.3d at 857; Cross, Kieschnick & Co., 892
S.W.2d at 438. Stated otherwise, the trial court had no power to issue an order that
imposed obligations in addition to those reflected in that judgment. See Custom
Corporates, Inc., 207 S.W.3d at 839; Bank One, N.A., 193 S.W.3d at 194–95.
C. ADEQUACY OF REMEDY BY APPEAL
We now address whether Old American has an adequate remedy by appeal for
the trial court’s denial of its plea to the jurisdiction. Old American contends that it lacks
an adequate remedy by appeal and mandamus is appropriate because the trial court is
attempting to adjudicate claims after the expiration of its plenary power. In this regard,
Old American asserts that its challenge stems from the trial court’s attempt to adjudicate
substantive claims, and not from the turnover order itself.5 In contrast, Rosales contends
5 In general, a turnover order is a final, appealable judgment. See Burns v. Miller, Hiersche,
Martens & Hayward, P.C., 909 S.W.2d 505, 506 (Tex. 1995); Schultz v. Fifth Jud. Dist. Ct. of App., 810
S.W.2d 738, 739 n. 3 (Tex. 1991), abrogated on other grounds, In re Sheshtawy, 154 S.W.3d 114 (Tex.
2004) (per curiam). Mandamus relief is usually not available if the order complained of is appealable,
because an appeal is almost always an adequate remedy at law. See Republican Party v. Dietz, 940
S.W.2d 86, 88 (Tex. 1997) (orig. proceeding). Accordingly, mandamus is not available to review turnover
orders where an appellate remedy is adequate. See, e.g., Int’l Paper Co. v. Garza, 872 S.W.2d 18, 19
(Tex. App.—Corpus Christi 1994, no writ); see also In re Dittmer, No. 14-12-01070-CV, 2012 WL 5954167,
at **1–2 (Tex. App.—Houston [14th Dist.] Nov. 29, 2012, orig. proceeding) (mem. op. per curiam); In re
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that if the trial court erred, which she has denied, any error was merely the result of
improper joinder or procedure and was not jurisdictional in nature.
In the instant case, Old American contends that the trial court’s plenary jurisdiction
expired before Rosales attempted to add it as a defendant in the turnover proceeding and
that the court could not adjudicate Old American’s substantive rights in the turnover
proceeding. It is well-settled that mandamus relief is appropriate when a trial court issues
an order after its plenary power has expired because the order is void. In re Brookshire
Grocery Co., 250 S.W.3d at 68–69; In re Sw. Bell Tel. Co., 35 S.W.3d at 605; In re CAS
Cos., 422 S.W.3d 871, 874 (Tex. App.—Corpus Christi 2014, orig. proceeding).
Moreover, the attempted addition of third parties to a case after the rendition of judgment
is a jurisdictional issue. See Custom Corporates, Inc., 207 S.W.3d at 840 (concluding
that the trial court lacked jurisdiction to enter a post-judgment order after the expiration of
plenary power adjudicating the expenses and fees of a non-party to the judgment);
Republic Ins. Co., 825 S.W.2d at 784 (“However, he did not have the authority under the
turnover statute to assume jurisdiction over Republic in this turnover action and to order
a consolidation and trial of the bad faith claims against it in his court.”); see also In re
Karlseng, 2014 WL 1018321, at *2.
Bradberry, No. 12-12-00162-CV, 2012 WL 3201928, at *1 (Tex. App.—Tyler Aug. 8, 2012, orig.
proceeding); In re Watson, No. 02-05-00342-CV, 2005 WL 2838513, at *1 (Tex. App.—Fort Worth Oct. 27,
2005, orig. proceeding) (mem. op. per curiam). However, whether an appellate remedy is adequate
depends heavily on the circumstances presented, see In re Prudential, 148 S.W.3d at 136–37, thus
mandamus may be an appropriate method to review turnover orders in exceptional circumstances. See,
e.g., In re Hamel, 180 S.W.3d 226, 229 (Tex. App.—San Antonio 2005, orig. proceeding); In re Alsenz, 152
S.W.3d at 621; In re Sensitive Care Inc., 28 S.W.3d 35, 42 (Tex. App.—Fort Worth 2000, orig. proceeding);
Plaza Court, Ltd. v. West, 879 S.W.2d 271, 276–77 (Tex. App.—Houston [14th Dist.] 1994, no writ);
Republic Ins. Co., 825 S.W.2d at 783–84; see also In re Karlseng, 2014 WL 1018321, at *2.
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We conclude that Old American lacks an adequate remedy by appeal where it has
been joined as a non-judgment debtor to a lawsuit by means of a turnover order, without
separate adjudicative proceedings, after the expiration of the trial court’s plenary power.
See In re Brookshire Grocery Co., 250 S.W.3d at 68–69; In re Sw. Bell Tel. Co., 35
S.W.3d at 605; Custom Corporates, Inc., 207 S.W.3d at 840; Republic Ins. Co., 825
S.W.2d at 784; see also In re Karlseng, 2014 WL 1018321, at *2. Accordingly, mandamus
review is available to remedy the trial court’s ruling denying the plea to the jurisdiction.
IV. THE RECORD
As a final matter, we note that Rosales asserts that Old American distorted the
record below and in this original proceeding. According to Rosales, Old American’s plea
to the jurisdiction was based on “rewriting [her] pleadings to claim that she was seeking
to hold [Old American] summarily liable in the turnover proceeding.” Rosales asserts that
the record shows that she was not seeking summary adjudication in the trial court
because she both served Old American with process and filed a motion for summary
judgment regarding her request for affirmative relief. Rosales thus states that “[Old
American] is not permitted to rewrite [her] turnover motion and the procedural history to
bolster its claims for lack of jurisdiction.” Rosales contends that the petition is based on
a “bowdlerized or expurgated version of the facts, facts not borne out by the actual
record.” Rosales asserts that this Court “must take the record as it finds it,” although she
“recognizes that such principle is ignored every day by Texas appellate courts.” Rosales
claims that Old American is merely “forum shopping” by filing the plea to the jurisdiction
and by seeking mandamus relief in this Court.
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We have carefully reviewed the petition and record in this original proceeding and
find no distortions or inaccuracies. See generally TEX. R. APP. P. 52.11; Walter v.
Marathon Oil Corp., 422 S.W.3d 848, 861 (Tex. App.—Houston [14th Dist.] 2014, no pet.)
(combined app. & orig. proceeding). In analyzing this case, we have focused on the
record that was before the trial court and properly before this Court in accordance with
the rules of appellate procedure. See generally TEX. R. APP. P. 52.3, 52.7; In re Bristol–
Myers Squibb Co., 975 S.W.2d 601, 605 (Tex. 1998) (orig. proceeding); Axelson, Inc. v.
McIlhany, 798 S.W.2d 550, 556 (Tex. 1990) (orig. proceeding). Moreover, based on the
record and appendix presented, we have concluded that Old American has carried its
burden to obtain relief, and accordingly, we do not agree with Rosales that Old American
has improperly sought review for the purpose of forum shopping.
V. CONCLUSION
The Court, having examined and fully considered the petition for writ of mandamus,
the response, the reply, and the applicable law, is of the opinion that Old American has
met its burden to show itself entitled to the relief sought. Accordingly, the petition for writ
of mandamus is conditionally granted. We direct the trial court to withdraw its order of
April 4, 2014 denying Old American’s plea to the jurisdiction and to enter an order
dismissing Rosales’s claims against Old American. We are confident that the trial will
comply, and the writ will issue only in the event that it does not. See TEX. R. APP. P.
52.8(a).
GREGORY T. PERKES
JUSTICE
Delivered and filed the
25th day of September, 2014.
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