Adela Dryden v. American Bank and James Dryden ( 2004 )

  NUMBER 13-02-379-CV

  COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG  

ADELA DRYDEN,                                                                        Appellant,

v. 

AMERICAN BANK AND JAMES DRYDEN,                               Appellees.

On appeal from the 148th District Court of Nueces County, Texas.

MEMORANDUM OPINION

Before Justices Hinojosa, Yañez, and Garza

Memorandum Opinion by Justice Yañez

          This is a post-judgment garnishment proceeding that was filed against appellee, American Bank, N.A. (“the bank”) by appellant, Adela Dryden, seeking to garnish funds of appellee/debtor, James Dryden, held by the bank. Following a bench trial, the trial court rendered judgment in favor of the bank, absolving it of liability to both Adela Dryden and James Dryden. The trial court further ordered appellant to pay the bank: (1) attorneys’ fees in the amount of $7,500; (2) post-judgment interest on that amount at an annual rate of ten percent; (3) court costs; (4) an additional $4,000 in attorneys’ fees in the event of an unsuccessful appeal to the court of appeals; and (5) an additional $2,000 in attorneys’ fees in the event of an unsuccessful appeal to the Texas Supreme Court. In a single issue, appellant contends the trial court erred in rendering judgment against her and in awarding the bank attorneys’ fees against her. We affirm.

          As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for it. See Tex. R. App. P. 47.4.

          Appellant contends the trial court erred in denying her a garnishment judgment because, pursuant to appellee James Dryden’s motion to dissolve the writ of garnishment, the court ordered the bank on April 30, 2001 to “immediately release” the funds trapped by the writ of garnishment. The bank argues, however, that the trial court did not err in absolving it of liability and in awarding it attorneys’ fees because by having her writ of garnishment served by a private process server, appellant never perfected the trial court’s jurisdiction over the funds sought to be garnished. As a result, the bank argues, the trial court could only dissolve the garnishment and assess attorneys’ fees in its favor against appellant.

          We begin by addressing the bank’s argument that by having the writ of garnishment served by a private process server, appellant never perfected the trial court’s jurisdiction over the funds sought to be garnished.

Jurisdiction

          Texas Rule of Civil Procedure provides:

  The sheriff or constable receiving the writ of garnishment shall immediately proceed to execute the same by delivering a copy thereof to the garnishee, and shall make return thereof as of other citations.

Tex. R. Civ. P. 663.

          Because garnishment is an extraordinary remedy, the Texas Supreme Court has held that garnishment proceedings “cannot be sustained unless they are in strict conformity with statutory requirements.” Beggs v. Fite, 130 Tex. 46, 106 S.W.2d 1039, 1042 (Tex. 1937); Mendoza v. Luke Fruia Invs., Inc., 962 S.W.2d 650, 651 (Tex. App.–Corpus Christi 1998, no pet.); Moody Nat’l Bank v. Riebschlager, 946 S.W.2d 521, 523 (Tex. App.–Houston [14th Dist.] 1997, writ denied). The sheriff or constable receiving the writ of garnishment shall immediately proceed to execute the writ by delivering a copy to the garnishee, and then “make return thereof as of other citations.” Moody, 946 S.W.2d at 523; see Tex. R. Civ. P. 663. Generally, when a writ of garnishment and summons are issued but not served upon the garnishee, his subsequent appearance and answer give the court no jurisdiction of the fund. Moody, 946 S.W.2d at 523. When a garnishee appears for the purpose of filing a motion to quash the garnishment, such an appearance does not confer jurisdiction on the court for all purposes, and does not operate as a waiver of an objection as to jurisdiction. Id. at 524.

          Here, it is undisputed that appellant’s post-judgment writ of garnishment was served on the bank by a private process server. Private process servers are prohibited from executing writs of garnishment as only a sheriff or constable may deliver the writs to a garnishee. Id. at 523 n.1 (citing Tex. R. Civ. P. 663; Lawyers Civil Process, Inc. v. State ex rel. Vines, 690 S.W.2d 939, 944 (Tex. App.–Dallas 1985, no writ)). Thus, because the bank was never properly served with the writ of garnishment, it never had control or custody of any funds belonging to James Dryden. Accordingly, we hold that because the trial court never acquired jurisdiction over the funds, see Moody, 946 S.W.2d at 524, it could only dissolve the writ of garnishment and award the bank its attorneys’ fees. We hold that the trial court did not err in denying appellant a garnishment judgment.

Attorneys’ Fees

          Appellant also contends the trial court erred in awarding the bank attorneys’ fees. Appellant argues that when the bank becomes an active litigant, it is not entitled to attorneys’ fees.

          A garnishee that contests a writ of garnishment and prevails is entitled to attorneys’ fees. See Tex. R. Civ. P. 677 (where garnishee is discharged upon his answer, garnishee’s attorneys’ fees shall be taxed against plaintiff); see also Rowley v. Lake Area Nat’l Bank, 976 S.W.2d 715, 724 (Tex. App.–Houston [1st Dist.] 1998, pet. denied) (interpreting rule 677 to mean prevailing garnishee is entitled to recover attorneys’ fees from garnishor); Henry v. Ins. Co. of N. Am., 879 S.W.2d 366, 369 (Tex. App.–Houston [14th Dist.] 1994, no writ) (garnishee entitled to recovery of attorneys’ fees expended in answering writ of garnishment). As is generally the case, the amount of an award of attorneys’ fees rests in the sound discretion of the trial court, and its judgment will not be reversed on appeal absent a clear abuse of discretion. Rowley, 976 S.W.2d at 724. In the absence of controverting evidence, the affidavit of counsel regarding attorneys’ fees will support the trial court’s award of such fees. Moody, 946 S.W.2d at 525.

          Here, the bank’s attorney testified at the bench trial that the bank had incurred $21,214.63 in legal fees defending itself against appellant’s claims. The record contains copies of invoices detailing legal services incurred by the bank in the amount of $21,214.63. The trial court ordered appellant to pay the bank $7,500 in attorneys’ fees, plus $4,000 in appellate fees in the event of an unsuccessful appeal to this Court, and an additional $2,000 in fees in the event of an unsuccessful appeal to the Texas Supreme Court. We hold that the trial court did not abuse its discretion in its award of attorneys’ fees to the bank. We overrule appellant’s sole issue. We affirm the trial court’s judgment.

                                                                                                                                                       LINDA REYNA YAÑEZ,

                                                                           Justice

Memorandum Opinion delivered and filed

this the 26th day of August, 2004.