olga-de-la-cerda-cabrera-independent-of-the-estate-of-rosie-a-zuniga-v ( 2013 )


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  • Opinion issued August 27, 2013
    In The
    Court of Appeals
    For The
    First District of Texas
    ————————————
    NO. 01-11-00320-CV
    ———————————
    OLGA DE LA CERDA-CABRERA, INDEPENDENT EXECUTRIX OF THE
    ESTATE OF ROSIE A. ZUNIGA, DECEASED, Appellant
    V.
    CHASE MANHATTAN BANK USA, N.A.; HULL & ASSOCIATES, P.C.
    A/K/A JAMES N. HULL & ASSOCIATES, P.C.; JAMES N. HULL; AND
    PALISADES COLLECTION, LLC, Appellees
    On Appeal from the 61st District Court
    Harris County, Texas
    Trial Court Cause No. 2009-65455
    MEMORANDUM OPINION
    This is an appeal from the trial court’s grant of a plea to the jurisdiction filed
    by appellees Chase Manhattan Bank USA, N.A., Hull & Associates, P.C. a/k/a
    James N. Hull & Associates, P.C., James N. Hull, and Palisades Collection, LLC.
    In three issues, appellant Olga de la Cerda-Cabrera, Independent Executrix of the
    Estate of Rosie A. Zuniga, Deceased 1 contends: (1) dismissal of Zuniga’s suit for
    lack of jurisdiction was error, (2) this Court should declare Texas’ post-judgment
    garnishment statute2 unconstitutional, and (3) if the case is remanded to the trial
    court, this Court should hold that appellees are precluded from seeking attorney’s
    fees.
    We affirm the trial court’s judgment.
    Background
    In 2001, Providian National Bank sued Zuniga in a Harris County justice
    court,3 to collect on an outstanding credit card balance. Zuniga’s Original Answer
    admitted that she owed the debt and suggested a plan for paying off the balance. In
    September 2001, the court signed an agreed judgment between Zuniga and PNB by
    which PNB was to receive $2,103.88, plus interest and attorney’s fees from
    1
    Rosie A. Zuniga died during the pendency of this appeal. For ease of reference,
    we will refer to appellant as “Zuniga” unless expressly noted.
    2
    Although Zuniga’s petition did not specify (by code name or section) which
    statute she contended was unconstitutional, Zuniga clarified on appeal that she is
    challenging sections 63.001–.008 of the Texas Civil Practice and Remedies Code.
    See TEX. CIV. PRAC. & REM. CODE §§ 63.001–.008 (West 2008).
    3
    Cause No. CV12C0015449, Justice Court, Precinct 1, Position 2, Harris County,
    Texas.
    2
    Zuniga. PNB thereafter assigned this judgment to Chase, which subsequently
    assigned it to Palisades.
    After six years,4 a writ of garnishment was issued at Chase’s request against
    Zuniga’s bank, Bank of Texas. Bank of Texas was served and timely answered,
    admitting that Zuniga had on deposit at least $2,247.23. Zuniga was never served
    with citation in the garnishment action. Instead, Chase’s attorney, Hull, sent
    Zuniga by regular and certified mail, return receipt requested, a copy of the
    application for writ of garnishment, affidavits in support of the application, and a
    letter informing her that she had the right to regain possession of the property by
    filing a replevy bond or a motion to dissolve the writ with the court. A copy of the
    writ of garnishment, however, was not included in the materials provided to
    Zuniga.    The green card that Zuniga signed indicates that she received the
    materials on October 20, 2007. On November 19, 2007, the justice court signed an
    agreed judgment (“Garnishment Judgment”) between Chase and Bank of Texas
    that awarded the captured funds to Chase, as PNB’s assignee. Zuniga neither
    answered nor contested the garnishment action despite actual notice of the
    proceeding.
    4
    September 28, 2007.
    3
    Present Litigation
    On October 9, 2009, nearly two years after the agreed Garnishment
    Judgment was signed, Zuniga filed suit against appellees in Harris County district
    court seeking to recover the garnished funds that she claimed included wrongfully
    seized supplemental security income (SSI).        Her original petition alleged that
    appellees’ garnishment amounted to conversion, and violated state and federal debt
    collection statutes (Texas Deceptive Trade Practices Act, 5 Debt Collection
    Practices Act, 6 and the federal Fair Debt Collection Practices Act 7). Zuniga also
    sought to permanently enjoin appellees from filing suit anywhere in Texas to
    collect on any debts “that misrepresent the status of the debt.” 8
    The appellees moved for summary judgment based on their affirmative
    defenses of res judicata, collateral estoppel, and the compulsory counterclaim rule.
    Zuniga’s claims, they argued, were premised on the ground that some or all of the
    garnished amounts were SSI funds exempt from garnishment, and Zuniga could,
    and should have, raised that argument in the underlying 2007 garnishment action.
    Zuniga responded that the Garnishment Judgment was void because it violated
    5
    TEX. BUS. & COM. CODE ANN. §§ 17.001–.926 (West 2011 & Supp. 2012).
    6
    TEX. FIN. CODE ANN. § 392.304(a)(8) (West 2006) (prohibiting misrepresentations
    of character, extent, and amount of consumer debt).
    7
    15 U.S.C. § 1692e(2)(a) (West 2009) (prohibiting misrepresentations of character,
    amount, or legal status of any debt).
    8
    Zuniga also sought to enjoin Palisades and Chase “from using Hull & Associates.”
    4
    federal law and because she was never served with process in the garnishment
    action. Zuniga also attached an affidavit in support of her response in which she
    denied having any “recollection of ever being served with citation.”
    Zuniga amended her petition to include claims pursuant to Texas’
    Declaratory Judgment Act 9 and 42 U.S.C. § 1983,10 arguing that appellees’
    garnishment action deprived her of due process in violation of section 1983, and
    seeking “a declaratory judgment that the Texas post-judgment garnishment statute,
    as implemented, violates the due process clause of the Fourteenth Amendment and
    the Supremacy Clause.”
    Appellees replied to Zuniga’s response and, upon grant to supplement their
    summary judgment motion, addressed Zuniga’s new claims arguing that Zuniga’s
    response and affidavit were misleading because Zuniga, who had actual notice of
    the garnishment proceeding, contacted Chase’s attorney on several occasions
    regarding the proceedings and even retained an attorney to protect her interests in
    the garnishment action. Appellees also attached a copy of the materials provided
    to Zuniga that notified her of the proceedings, the green card she signed on
    October 20, 2007 indicating that she received the materials, and an affidavit from
    Hull attesting to the facts that Zuniga contacted his office twice in October 2007 to
    9
    TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.001–.009 (West 2008).
    10
    42 U.S.C. § 1983 (2003) (providing private cause of action for violations of
    federal constitutional rights).
    5
    inquire about the garnishment proceeding, and that an attorney representing Zuniga
    contacted the office twice in early November 2007 to discuss the garnishment
    proceeding.
    On October 28, 2010, the trial court denied appellees’ motion for summary
    judgment.
    Appellees thereafter filed a plea to the jurisdiction arguing that the trial court
    was without jurisdiction over Zuniga’s suit because, by her own admissions in
    response to appellees’ summary judgment motion, the suit was an impermissible
    collateral attack on the Garnishment Judgment.        Appellees’ plea included, inter
    alia, their motion for summary judgment and attached exhibits, Zuniga’s response,
    and their reply and supplemental summary judgment motion with exhibits.
    Zuniga’s response asserted the same arguments previously raised in her response to
    appellees’ summary judgment motion, and argued further that because the
    Garnishment Judgment was void, it was a legal nullity and thus subject to
    collateral attack and that the trial court had jurisdiction over all of Zuniga’s claims.
    The trial court granted the plea to the jurisdiction and this appeal followed.
    Plea to the Jurisdiction
    Zuniga contends that the trial court erred in dismissing her suit for lack of
    jurisdiction because the Garnishment Judgment was void, and therefore, subject to
    collateral attack at any time.
    6
    Standard of Review
    The purpose of a plea to the jurisdiction is to dismiss a cause of action
    without regard to whether the claim has merit. Bland Indep. Sch. Dist. v. Blue, 
    34 S.W.3d 547
    , 554 (Tex. 2000). A plea to the jurisdiction is reviewed under a de
    novo standard. Houston Mun. Emps. Pension Sys. v. Ferrell, 
    248 S.W.3d 151
    , 156
    (Tex. 2007). When a party relies on facts outside of a plaintiff’s petition, the
    appellate court reviews both the petition and the evidence attached to the plea to
    the jurisdiction. See 
    Bland, 34 S.W.3d at 555
    . A plea to the jurisdiction is the
    proper procedural tool to challenge a suit brought in one court when another court
    has exclusive jurisdiction. Jansen v. Fitzpatrick, 
    14 S.W.3d 426
    , 430–31 (Tex.
    App.—Houston [14th Dist.] 2000, no pet.); see also Wilbourne v. HFE Dev. Corp.,
    No. 03–08–00430–CV, 
    2009 WL 4757451
    , at *7 (Tex. App.—Austin Dec. 9,
    2009, no pet.) (mem. op.) (holding that plea to jurisdiction was improperly denied
    because declaratory judgment action was improper collateral attack); but see
    Dolenz v. Vail, 
    200 S.W.3d 338
    , 341 (Tex. App.—Dallas 2006, no pet.) (stating
    collateral attack on prior judgment may affect merits of party’s claim, but it is not
    jurisdictional issue); Herrera v. Household Fin. Corp. III, No. 04–08–00134–CV,
    
    2009 WL 1154704
    , at *4 (Tex. App.—San Antonio Apr. 29, 2009, no pet.) (mem.
    op.) (same). The only court with jurisdiction to hear a garnishment action is the
    7
    court that issued the original judgment. King & King v. Porter, 
    252 S.W. 1022
    ,
    1022 (Tex. 1923).
    Garnishment Judgment is Not Void
    Zuniga contends that the Garnishment Judgment is void because it (1)
    violates a federal statute exempting SSI funds from garnishment and (2) she was
    never properly served with process in the garnishment action. She also argues for
    the first time on appeal that the court that rendered the judgment did not have
    subject-matter jurisdiction over all of the captured funds.
    “A collateral attack seeks to avoid the binding effect of a judgment in order
    to obtain specific relief that the judgment currently impedes.” PNS Stores, Inc. v.
    Rivera, 
    379 S.W.3d 267
    , 272 (Tex. 2012) (citing Browning v. Prostok, 
    165 S.W.3d 336
    , 346 (Tex. 2005)). Only a void judgment may be collaterally attacked.
    
    Prostok, 165 S.W.3d at 346
    . “A judgment is void only when it is apparent that the
    court rendering the 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.” Mapco, Inc. v. Forrest, 
    795 S.W.2d 700
    , 703 (Tex. 1990). When attacked
    collaterally, a judgment is presumed valid. 
    Rivera, 379 S.W.3d at 273
    (citing
    Stewart v. USA Custom Paint & Body Shop, Inc., 
    870 S.W.2d 18
    , 20 (Tex. 1994)).
    That presumption disappears, however, when the record establishes a jurisdictional
    defect.   
    Id. Generally, if
    a court acts contrary to a rule, statute, or even a
    8
    constitutional provision, the judgment is not void, but “voidable” or “erroneous.”
    
    Mapco, 795 S.W.2d at 703
    . A judgment is “void,” and thus subject to collateral
    attack, if there was a complete lack of service in violation of due process. 
    Rivera, 379 S.W.3d at 274
    –75.      Technical defects with regard to service of process,
    however, do not implicate due process and a judgment rendered under such
    circumstances is merely voidable, not void. 
    Id. Here, Zuniga
    argues that the Garnishment Judgment is void because
    appellees failed to strictly comply with the relevant statutory notice provisions.
    Zuniga does not, however, deny that she had actual notice of the 2007 garnishment
    proceeding. As the Supreme Court held in Rivera, technical defects in service that
    do not deprive a party of a meaningful opportunity to appear and answer, do not
    implicate due process concerns, and a judgment rendered under such circumstances
    is merely voidable, not void. 
    Rivera, 379 S.W.3d at 274
    –75. Even assuming that
    the garnishment proceeding captured funds that are statutorily exempt from
    garnishment—Zuniga’s SSI funds—the judgment would not be void, merely
    voidable. 
    Mapco, 795 S.W.2d at 703
    (stating judgment resulting from court acts
    contrary to rule, statute, or constitutional provision is merely “voidable” or
    “erroneous”).
    The justice court that rendered the 2007 Garnishment Judgment also
    rendered the 2001 agreed judgment in favor of appellees. As such, the justice
    9
    court had exclusive jurisdiction over the 2007 garnishment action. See King &
    
    King, 252 S.W. at 1022
    .         Even assuming that Zuniga is correct and the
    Garnishment Judgment captured SSI funds that are exempt from garnishment, the
    judgment would only be erroneous or voidable; it does not deprive the court of
    jurisdiction over the subject-matter of the proceeding. Because the justice court
    that rendered the Garnishment Judgment had jurisdiction over both the parties and
    the subject-matter, and there is no indication that the court lacked jurisdiction to
    enter the judgment or the capacity to act as a court, we hold that the Garnishment
    Judgment is not void, but merely voidable, and as such, Zuniga may not
    collaterally attack the judgment. See 
    Rivera, 379 S.W.3d at 275
    ; 
    Mapco, 795 S.W.2d at 703
    (stating judgment is void only when it is apparent that court
    rendering judgment lacked jurisdiction over parties or subject matter, had no
    jurisdiction to enter judgment, or no capacity to act as court).
    We overrule Zuniga’s first issue.
    Declaratory Judgment 11
    Zuniga’s second issue seeks this Court’s declaration that Texas’ post-
    judgment garnishment statute is unconstitutional.
    11
    Appellees argued in their appellate brief that Zuniga’s declaratory judgment
    claims were mooted by the death of Rosie Zuniga during the pendency of this
    appeal. The Court construed appellees’ argument as a motion to dismiss the
    appeal for want of jurisdiction and denied the motion in a separate order.
    10
    When a litigant brings a declaratory judgment action challenging the
    constitutionality of a state statute, the statute requires that the Attorney General be
    served with a “copy of the proceedings” and that the Attorney General is entitled to
    be heard. See TEX. CIV. PRAC. & REM. CODE ANN. § 37.006(b) (West 2008); Tex.
    Educ. Agency v. Leeper, 
    893 S.W.2d 432
    , 446 (Tex. 1994). Section 37.006,
    however, does not require that the Attorney General be made a party to the suit.
    Wichita Cnty. v. Robinson, 
    276 S.W.2d 509
    , 511 (Tex. 1954); cf. Motor Vehicle
    Bd. of the Texas Dep’t of Transp. v. El Paso Indep. Auto. Dealers Ass’n, Inc., 
    1 S.W.3d 108
    , 110–11 (Tex. 1999) (holding that, although Attorney General was not
    required to be party to suit challenging constitutionality of state statute and had
    declined to participate, Attorney General had not waived right to appeal negotiated
    pretrial settlement because Attorney General was bound by judgment and its
    interests were affected by judgment). The failure to notify the Attorney General of
    the pendency of a declaratory judgment action in which the constitutional validity
    of a statute, ordinance, or franchise is challenged, however, deprives the trial court
    of jurisdiction to proceed. Scurlock Permian Corp. v. Brazos Cnty., 
    869 S.W.2d 478
    , 483 (Tex. App.—Houston [1st Dist.] 1993, writ denied) (citing Commerce
    Indep. Sch. Dist. v. Hampton, 
    577 S.W.2d 740
    , 741 (Tex. Civ. App.—Eastland
    1979, no writ) and Commissioners Court of Harris Cnty. v. Peoples Nat’l Util. Co.,
    
    538 S.W.2d 228
    , 229 (Tex. Civ. App.—Houston [14th Dist.] 1976, writ ref’d
    11
    n.r.e.)). The record before us on appeal contains no indication that the Attorney
    General was notified of Zuniga’s declaratory judgment action or given an
    opportunity to be heard in the case. As such, the record does not reflect that the
    trial court had jurisdiction over Zuniga’s claim. Scurlock 
    Permian, 869 S.W.2d at 483
    .   Because the trial court did not have jurisdiction over the declaratory
    judgment claim, neither do we.
    We overrule Zuniga’s second issue.
    Attorney’s Fees
    Having overruled Zuniga’s first and second issues, we are affirming the trial
    court’s judgment, and need not reach Zuniga’s third issue.
    Conclusion
    We affirm the trial court’s judgment.
    Jim Sharp
    Justice
    Panel consists of Chief Justice Radack and Justices Sharp and Massengale.
    12