Opinion issued March 18, 2021
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-18-01087-CV ——————————— KATHIE DIGILIO, Appellant/Cross-Appellee V. TRUE BLUE ANIMAL RESCUE, Appellee/Cross-Appellant
On Appeal from the 506th District Court Waller County, Texas Trial Court Case No. 16-10-23953
MEMORANDUM OPINION ON REHEARING
Appellee and Cross-Appellant, True Blue Animal Rescue (TBAR), filed a
motion for rehearing of this Court’s July 28, 2020 opinion. We deny the motion for
rehearing, but we withdraw our July 28, 2020 opinion and judgment and issue this
opinion and judgment in their stead. This case began as an animal cruelty case in which the Waller County District
Attorney’s Office (WCDAO) removed 34 horses from the care of appellant/cross-
appellee Kathie Digilio and prosecuted her for animal cruelty. The criminal
proceeding against her was ultimately dismissed, and WCDAO reached a settlement
with Digilio in the civil divestiture proceedings by which 24 of the seized horses
would be given to appellee/cross-appellant True Blue Animal Rescue (TBAR), three
of the seized horses would be returned to a third-party buyer, and seven horses would
be returned to Digilio. Digilio also agreed to pay (and did actually pay) TBAR
$30,000 for its care of the horses while the animal cruelty case was pending. The
justice court with jurisdiction over the cruelty case rendered a judgment effectuating
the agreement between WCDAO and Digilio.
This appeal arises out of TBAR’s collateral attack, filed in the 506th District
Court of Waller County (the trial court), seeking to declare void portions of the
justice court’s judgment, asking the trial court to declare that TBAR should be
awarded all 34 seized horses and that Digilio should pay TBAR $232,900.09 for
boarding and caring for the horses. Digilio asserted counterclaims against TBAR for
conversion of her seven horses, tortious interference with her agreement with
WCDAO, and injunctive relief. The trial court granted summary judgment
dismissing both TBAR’s claims for declaratory relief and Digilio’s counterclaims.
2 Both TBAR and Digilio now challenge the trial court’s granting of summary
judgment.
Because we conclude that TBAR was not entitled to its requested declaratory
relief as a matter of law and that Digilio failed to provide evidence of an essential
element of her counterclaims, we affirm.
Background
A. Waller County seized Digilio’s horses/Resolved in Justice Court:
On July 9, 2015, pursuant to a search and arrest warrant, an officer with the
WCDAO arrested Digilio, charged her with felony animal cruelty, and seized 34
horses from her property. TBAR, a 501(c)(3) charitable organization dedicated to
animal welfare and adoption, agreed to shelter the horses. The next day, TBAR
received possession of the 34 horses.
Over a year later, the case against Digilio remained pending. On August 1,
2016, the Waller County Justice Court, Precinct 1, (justice court) issued a seizure
warrant pursuant to Texas Health and Safety Code section 821.022, providing that
TBAR maintain custody of the horses and setting a hearing:
[T]he animals shall be IMPOUNDED and held in the custody and control of . . . True Blue Animal Rescue in accordance with Section 821.022, Health and Safety Code, for the purpose of a hearing to determine whether the animal(s) has/have been cruelly treated as defined under the laws of the State of Texas.
3 At the time this warrant issued, TBAR had been in possession of the horses
for more than a year. Attached to the warrant was (1) a list of the 34 horses that had
been seized in July 2015, describing each horse and its body condition at the time of
seizure; (2) an expert report from large-animal veterinarians stating concerns with
the poor body condition of the horses, the size and quality of pastures, the
unrestrained breeding that was increasing the size of the herd, and the amount of
food and veterinary care the animals were receiving; and (3) the affidavit for the
search and arrest warrant from July 2015.
WCDAO subpoenaed TBAR’s president, Melanie DeAeth, to testify at the
hearing set on September 2, 2016. DeAeth appeared and was prepared to testify;
however, no hearing occurred because WCDAO and Digilio came to an agreement.
DeAeth provided an affidavit in which she averred that she “was not given an
opportunity to present evidence to the [justice court] regarding TBAR’s costs
incurred,” which she claimed totaled $232,900.09. DeAeth further asserted that she
would have testified to “the condition of the horses and TBAR’s opposition” to the
horses being returned to Digilio.
Rather, on September 2, 2016, prior to the hearing being held, the WCDAO
and Digilio reached an agreement regarding disposition of the horses, and the justice
court signed an order titled “Order: Cruelly Treated Animals Hearing (Sec. 821.023
H.S.C.)” in light of this agreement (September 2 Order). The justice court found that
4 Digilio was the owner of the 34 seized horses and that Digilio treated the animals
cruelly “by improperly caring for the horses and maintaining too many horses on her
property.” The justice court ordered that Digilio “be divested of ownership of . . . 27
horses including three sold prior to seizure,”1 referring to the “court order and
agreement reflected and entered by the parties.”
The September 2 Order further provided that “the 24 horses as per the
agreement between the State of Texas [as represented by the WCDAO] and
defendant [Digilio]” be given to TBAR and that the “three horses including ‘Flyer’
[be] returned to their owners per the agreement.” The justice court ordered the return
of seven of the horses to Digilio, as provided for in the parties’ agreement. Finally,
the justice court found “that the estimated costs likely to be incurred to house and
care for the impounded animals during the appeal process is $30,000. It is therefore
ordered that the amount of the bond necessary to perfect an appeal is $30,000.”
On September 19, 2016, the “Agreement of Kathie Digilio and the Waller
County District Attorney’s Office” that was referenced in the September 2 Order
was filed. The Agreement explained that “Digilio is awarded seven horses to be
1 After the horses were seized, Digilio provided law enforcement with information indicating that she had previously sold some of the horses to a third party. The record is unclear regarding exactly when these sales occurred, but Digilio and the WCDAO eventually identified Clint Kolz as the third party to whom Digilio had sold three of the seized horses. 5 chosen by her after payment of restitution to True Blue through the District
Attorney’s Office.” The Agreement further stated,
Three individuals shall complete paperwork or submit bills of sale to the District Attorney’s Office in order to acquire three horses that were purchased prior to the seizure. . . . One of these horses is identified as ‘Flyer’ and he shall be picked up upon payment of $12,000 restitution made out to True Blue. The other two horses shall be picked up by their owners or qualified designees after the remaining restitution has been paid to the District Attorney’s Office, namely the sum of $18,000 due on September 16, 2016, payable to the District Attorney’s Office. . . .
Once the restitution mentioned above is paid to the District Attorney’s Office, the ten horses mentioned above shall no longer be the property of True Blue. . . .
Digilio shall reimburse True Blue in the sum of $30,000 for the care of the horses including $12,000 paid by September 2, 2016 and $18,000 paid within two weeks. Payment shall be made to the WCDA who shall then tender the amounts to True Blue. . . .
This agreement is only valid between and applicable to the District Attorney’s Office and the defendant through the court and the court order entered September 2, 2016. No other parties, including True Blue, are parties to this agreement.
The Agreement also provided for Digilio to obtain “certification” of her
property as being appropriate to care for the number of horses she has; prohibited
her from acquiring new horses, including through breeding; and stated that Digilio
waived her right to appeal the justice court’s order regarding possession of the horses
although “[t]he criminal case and appeals therefrom are not affected by this hearing
or agreement.”
6 The Agreement concluded at the bottom: “This agreement is a reflection of
the agreement and court order entered in the Honorable Court on September 2, 2016
and is adopted by the Court as the final and binding court order in this case.” It was
signed by the justice court on September 19, 2016.
On October 3, 2016, the justice court rendered a supplemental order revising
its findings and final order (October 3 Supplemental Order). The justice court again
found that Digilio was the owner of the 34 horses seized from her property and
described them particularly in an inventory attached to the supplemental order. The
justice court further found that “7 horses are awarded to Kathie Digilio pursuant to
the agreement in this file” and identified the horses by their number in the attached
inventory. The justice court awarded three specific horses to a third-party buyer,
Clint Kolz, and it found “that the remaining 24 horses were subject to unintentional
mistreatment and are awarded to True Blue Animal Rescue pursuant to an agreement
entered into between the State of Texas [as represented by the WCDAO] and the
defense [Digilio] that these horses are the personal property of [TBAR].” Finally,
the October 3 Supplemental Order required Digilio to pay costs of $30,000, noting
that these costs were “previously paid pursuant to the agreement as reimbursement
for the costs of True Blue Animal Rescue.”
The October 3 Supplemental Order did not include any findings regarding
cruel treatment of the 10 horses awarded to Digilio and Kolz. It further stated,
7 “[T]his Supplemental Order shall supersede and take the place of the previous Court
Ordered entered and filed on September 2, 2016, thereby making this the final order
on this case.”
B. TBAR’s Suit against the County in District Court
On October 3, 2016, the same day the justice court rendered its October 3
Supplemental Order, TBAR filed the underlying suit against Waller County. In its
original petition, TBAR alleged that Waller County and Digilio “determined
amongst themselves that Digilio would reimburse TBAR $30,000.00 for the care of
the 34 horses that TBAR boarded, fed, cared for, paid veterinary bills and nursed
back to health for 15 months,” but that TBAR itself “was not a part of that
negotiation” and that the amount of reimbursement “is far lower than what TBAR
has paid to care for these 34 horses.” TBAR alleged that, at the time it filed suit, its
total expenses were $232,900.09.
TBAR relied on Health and Safety Code chapter 821 in challenging the justice
court’s orders. Health and Safety Code chapter 821 permits a peace officer to apply
for a warrant to seize an animal if the officer has reason to believe that the animal
has been cruelly treated. TEX. HEALTH & SAFETY CODE § 821.022(a). Section
821.022 further provides:
(b) On a showing of probable cause to believe that the animal has been or is being cruelly treated, the court or magistrate shall issue the warrant and set a time within 10 calendar days of the date of issuance for a
8 hearing in the appropriate justice court or municipal court to determine whether the animal has been cruelly treated.
(c) The officer executing the warrant shall cause the animal to be impounded and shall give written notice to the owner of the animal of the time and place of the hearing.
Id. § 821.022(b), (c). Section 821.023 provides guidance for chapter 821 hearings
and the resulting orders. In relevant part, section 821.023 provides:
(d) If the court finds that the animal’s owner has cruelly treated the animal, the owner shall be divested of ownership of the animal, and the court shall:
(1) order a public sale of the animal by auction;
(2) order the animal given to a municipal or county animal shelter or a nonprofit animal welfare organization; or
(3) order the animal humanely destroyed if the court decides that the best interests of the animal or that the public health and safety would be served by doing so.
(e) After a court finds that an animal’s owner has cruelly treated the animal, the court shall order the owner to pay all court costs, including:
(1) the administrative costs of:
(A) investigation;
(B) expert witnesses; and
(C) conducting any public sale ordered by the court; and
(2) the costs incurred by a municipal or county animal shelter or a nonprofit animal welfare organization in:
(A) housing and caring for the animal during its impoundment; and
9 (B) humanely destroying the animal if destruction is ordered by the court.
Id. § 821.023(d), (e). Section 821.023(g) states, “The court shall order the animal
returned to the owner if the court does not find that the animal’s owner has cruelly
treated the animal.” Id. § 821.023(g).
In its live pleading,2 TBAR cites section 821.023(d) and (e) to support its
assertion that the justice court’s orders found that Digilio had cruelly treated all 34
horses and, thus, required that she be divested of all 34 horses and ordered to pay
TBAR’s full costs. Relevant here, TBAR sought declaratory judgment that the
justice court’s September 2 Order is void to the extent it is inconsistent with Health
and Safety Code sections 821.023(d) (requiring divesture of horses if the court finds
the owner treated animal cruelly) and 821.023(e)(2)(A) (requiring award of costs,
including costs associated with housing and caring for the animal during its
impoundment) and also that the justice court’s October 3 Supplemental Order was
void “in its entirety because it is outside the plenary power of that court.” TBAR
asked the trial court to award it ownership of all 34 horses and to require Digilio to
pay $230,900.09 “for all of its costs for housing and caring for the horses during
2 TBAR’s live pleading included counterclaims against Digilio to recover the costs it incurred in caring for and housing the horses under theories of quantum meruit, unjust enrichment, and a stable keeper’s lien under Texas Property Code section 70.003. TBAR non-suited these claims following the trial court’s granting of Digilio’s summary judgment on TBAR’s declaratory judgment claims, and they are not before us in this appeal.
10 their impoundment because [Digilio] was found to have cruelly treated all 34
horses.”
TBAR also sought a temporary restraining order and a temporary injunction.
The trial court granted the TRO; but, following a hearing, it denied TBAR’s request
for a temporary injunction against Waller County, prohibiting the enforcement of
the justice court’s judgment. TBAR filed an interlocutory appeal of the trial court’s
denial of the temporary injunction, and this Court affirmed the trial court’s denial.
See True Blue Animal Rescue, Inc. v. Waller County, No. 01-16-00967-CV, 2017
WL 1434273, at *3 (Tex. App.—Houston [1st Dist.] Apr. 20, 2017, no pet.) (mem.
op.).
Meanwhile, Digilio intervened in TBAR’s suit against Waller County in the
trial court, asserting causes of action, including conversion and tortious interference,
and requesting injunctive relief to require TBAR to return the seven horses given to
her in the October 3, 2016 Supplemental Order based on her Agreement with the
WCDAO. She alleged that TBAR wrongfully exercised control over her seven
horses, that it tortiously interfered with her Agreement with the WCDAO that
formed the basis of the justice court’s judgment, and that it should be enjoined from
withholding the horses from her.
In addition, TBAR transferred the $30,000 that Digilio had paid in connection
with the justice court’s orders into the trial court’s registry. TBAR asserted that it
11 deposited the funds because it wanted to make clear that it would not accept the
$30,000 as satisfaction of its claims against Digilio.
On January 6, 2017, while the underlying case (including the interlocutory
appeal of the trial court’s denial of a temporary injunction) was pending, the trial
court dismissed the criminal case against Digilio. The State claimed that it sought
dismissal of the criminal charges against Digilio due to “State’s witness credibility
concerns.” Following the dismissal of the criminal case in January and this Court’s
resolution of the interlocutory appeal in April 2017, TBAR nonsuited its claims
against Waller County and moved for summary judgment against Digilio. In two
motions for summary judgment, one in May 2017 and the other in December 2017,
TBAR moved for summary judgment on its own claims for declaratory judgment,
but the trial court denied these motions.
In parallel proceedings, a separate suit between Digilio and her neighbors,
including Christin McCumber, was working its way through the courts. The trial
court resolved the McCumber case against Digilio and rendered judgment in favor
of the McCumber parties. The trial court signed an order granting turnover and
appointing a receiver to satisfy the judgment in the McCumber case. The receiver
determined that the seven horses awarded to Digilio by the justice court were
12 personal property subject to the turnover order and asked TBAR to continue housing
the horses while the underlying dispute regarding their ownership was pending.3
On April 6, 2018, Digilio filed a traditional and no-evidence motion for partial
summary judgment asking the trial court to deny TBAR’s claims for declaratory
judgment. Digilio argued that TBAR was not entitled to declaratory judgment and
that the justice court’s orders were not void. The trial court granted Digilio’s motion
and signed an order dismissing TBAR’s claims for declaratory relief.
On October 5, 2018, TBAR filed its own traditional and no-evidence motion
for summary judgment. TBAR’s motion asked the trial court to render judgment that
Digilio take nothing from TBAR on Digilio’s claims for conversion, tortious
interference, and injunctive relief. The trial court granted TBAR’s motion and
ordered that Digilio take nothing on each of her claims against TBAR.
The trial court subsequently rendered its final judgment, and this appeal
followed.
Summary Judgments
The trial court resolved this case by rendering summary judgment on both
TBAR’s and Digilio’s claims. Both parties now challenge the trial court’s motions
for summary judgment.
3 The receiver also paid TBAR $8,000 on Digilio’s behalf for the boarding and care of the horses during the underlying litigation. This amount was also deposited into the registry of the court. 13 A party seeking summary judgment may combine in a single motion a request
for summary judgment under both the no-evidence and the traditional standards.
Binur v. Jacobo, 135 S.W.3d 646, 650–51 (Tex. 2004).
To prevail on a no-evidence summary-judgment motion, the movant must
establish that there is no evidence to support an essential element of the non-
movant’s claim on which the non-movant would have the burden of proof at trial.
See TEX. R. CIV. P. 166a(i); Hahn v. Love, 321 S.W.3d 517, 523–24 (Tex. App.—
Houston [1st Dist.] 2009, pet. denied). The burden then shifts to the non-movant to
present evidence raising a genuine issue of material fact as to each of the elements
challenged in the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.
2006). A no-evidence summary judgment may not be granted if the non-movant
brings forth more than a scintilla of evidence to raise a genuine issue of material fact
on the challenged elements. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600
(Tex. 2004). More than a scintilla of evidence exists when reasonable and fair-
minded individuals could differ in their conclusions. King Ranch, Inc. v. Chapman,
118 S.W.3d 742, 751 (Tex. 2003).
To prevail on a traditional summary judgment motion, the movant bears the
burden of proving that no genuine issues of material fact exist and that it is entitled
to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Mann Frankfort Stein &
Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). A matter is
14 conclusively established if reasonable people could not differ as to the conclusion to
be drawn from the evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex.
2005); Cleveland v. Taylor, 397 S.W.3d 683, 697 (Tex. App.—Houston [1st Dist.]
2012, pet. denied).
Therefore, when a defendant moves for a traditional summary judgment, it
must either: (1) disprove at least one essential element of the plaintiff’s cause of
action, or (2) plead and conclusively establish each essential element of an
affirmative defense, thereby defeating the plaintiff’s cause of action. See Cathey v.
Booth, 900 S.W.2d 339, 341 (Tex. 1995). Once the movant meets its burden, the
burden shifts to the non-movant to raise a genuine issue of material fact precluding
summary judgment. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).
The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could
differ in their conclusions in light of all of the summary-judgment evidence.
Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).
To determine if the nonmovant raised a fact issue, we review the evidence in
the light most favorable to the nonmovant, crediting favorable evidence if reasonable
jurors could, and disregarding contrary evidence unless reasonable jurors could not.
Fielding, 289 S.W.3d at 848 (citing City of Keller, 168 S.W.3d at 827); Cleveland,
397 S.W.3d at 697. We indulge every reasonable inference and resolve any doubts
in the nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661
15 (Tex. 2005); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002) (citing
Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997)); Cleveland, 397
S.W.3d at 697. A genuine issue of material fact is raised when the nonmovant
produces more than a scintilla of evidence regarding the challenged element. Neely
v. Wilson, 418 S.W.3d 52, 59 (Tex. 2013).
If a trial court grants summary judgment without specifying the grounds for
granting the motion, we must uphold the trial court’s judgment if any of the asserted
grounds are meritorious. Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex.
App.—Houston [1st Dist.] 2005, pet. denied).
TBAR’s Appeal
TBAR sought a declaration that the justice court’s October 3, 2016
Supplemental Order was void because it was rendered outside the court’s plenary
power. TBAR also sought a declaration that the justice court’s September 2, 2016
Order and the Agreement between the WCDAO and Digilio, which was filed and
signed by the justice court on September 19, 2016, were void to the extent that they
(1) were inconsistent with Health and Safety Code sections 821.023(d) and
821.003(e)(2)(A); (2) awarded horses back to Digilio that she had treated cruelly;
and (3) failed to award TBAR all of the horses and all of its $232,900.09 in costs for
the care and housing of the impounded horses.
16 On appeal, TBAR argues that the trial court erred in granting summary
judgment denying the requested declaratory relief. It continues to assert that the
justice court’s orders were void, in whole or in part, and that its collateral attack on
the justice court’s orders by filing this declaratory judgment suit is the proper
procedural vehicle for attacking the justice court’s judgment.
A. Justice Court’s Orders
To address TBAR’s arguments on appeal, we must first examine the justice
court’s jurisdiction to render the orders that comprise its judgment in the divestiture
proceeding. The Texas Constitution provides that the justice courts’ jurisdiction
includes “such other jurisdiction as may be provided by law.” TEX. CONST. art. V, §
19; see also TEX. GOV’T CODE § 27.031 (setting out current jurisdiction of justice
courts). Pursuant to this constitutional authority, the legislature passed Health and
Safety Code chapter 821 to provide justice courts with special and limited
jurisdiction over actions alleging cruel treatment of animals. See TEX. HEALTH &
SAFETY CODE §§ 821.022–.025; Chambers v. State, 261 S.W.3d 755, 759 (Tex.
App.—Dallas 2008, pet. denied); Pitts v. State, 918 S.W.2d 4, 4 (Tex. App—
Houston [14th Dist.] 1995, no writ); see also Granger v. Folk, 931 S.W.2d 390, 392
(Tex. App.—Beaumont 1996, orig. proceeding) (recognizing that “two avenues exist
for the State in protecting animals from cruel treatment, i.e., criminal prosecution
under . . . the Penal Code and the civil remedy provided under Section 821.023 of
17 the Health and Safety Code”). It is undisputed that the justice court had jurisdiction
over the divestiture proceedings that TBAR now attacks.
TBAR first asserts that the justice court’s October 3 Supplemental Order was
rendered after the court’s plenary power had expired. Under Texas Rule of Civil
Procedure 507.1, a justice court “loses plenary power over a case when an appeal is
perfected or if no appeal is perfected, 21 days after the later of the date judgment is
signed or the date a motion to set aside, motion to reinstate, or motion for new trial,
if any is denied.” TEX. R. CIV. P. 507.1. Furthermore, Rule 500.02(o) defines
“judgment” as “a final order by the court that states the relief, if any, a party is
entitled to or must provide.” TEX. R. CIV. P. 500.2(o).
To determine whether the justice court signed its October 3 Supplemental
Order outside of its plenary power, we examine all the orders rendered by the justice
court in the divestiture proceeding. On September 2, 2016, rather than holding a
divestiture hearing pursuant to chapter 821, the justice court signed an order based
on the agreement reached by the WCDAO and Digilio. The September 2 Order
contained findings that Digilio was the owner of 34 horses that had been seized and
that Digilio treated the animals cruelly “by improperly caring for the horses and
maintaining too many horses on her property.” The September 2 Order provided that
Digilio “be divested of ownership of . . . 27 horses including three sold prior to
seizure.”
18 The September 2 Order awarded ownership of 24 horses to TBAR, ordered
that the three horses purchased by a third party be “returned to their owners,” and
ordered that seven of the horses be returned to Digilio. The September 2 Order did
not identify which 24 out of the 34 seized horses should be awarded to TBAR, which
7 of the 34 horses should be returned to Digilio, or which 3 horses belonged to a
third party beyond identifying the horse known as “Flyer” as one of these three.
Nor did the September 2 Order award any costs. The justice court found in the
September 2 Order “that the estimated costs likely to be incurred to house and care
for the impounded animals during the appeal process is $30,000” and thus ordered
that “the amount of the bond necessary to perfect an appeal is $30,000.” The order
did not include any language of finality. Instead, the September 2 Order expressly
stated, “[S]ee court order and agreement reflected and entered by the parties.”
Seventeen days later, on September 19, 2016, the justice court signed the
“Agreement of Kathie Digilio and the Waller County District Attorney’s Office”
that was referenced in the September 2 Order. This document stated: “This
agreement is a reflection of the agreement and court order entered in the Honorable
Court on September 2, 2016 and is adopted by the Court as the final and binding
court order in this case.” The Agreement set out the specific terms Digilio was
required to satisfy in order to obtain the return of seven horses, including how the
19 parties were to determine which horses would be awarded to which parties and the
amount of restitution to be paid to TBAR.
Fourteen days later, the justice court signed its October 3 Supplemental Order,
which stated that the supplemental order “shall supersede and take the place of the
previous Court Order entered and filed on September 2, 2016 thereby making this
the final order on this case.” In this order, the justice court omitted any finding
regarding cruel treatment of the seven horses returned to Digilio or the three horses
bought by Kolz, the third-party buyer. Regarding the remaining 24 horses—the ones
awarded to TBAR—the justice court found they “were subject to unintentional
mistreatment and are awarded to True Blue Animal Rescue pursuant to an agreement
entered into between the State of Texas [as represented by the WCDAO] and the
defense [Digilio] and that these horses are the personal property of [TBAR].”
TBAR’s assertion that this October 3 Supplemental Order was signed outside
the justice court’s plenary power assumes that the September 2 Order was the final
order of the justice court. The record does not support this assumption. A judgment
rendered without a conventional trial on the merits is final if it disposes of all pending
parties and claims in the record. See Lehmann v. Har–Con Corp., 39 S.W.3d 191,
192–93, 195 (Tex. 2001); see also TEX. R. CIV. P. 500.2(o) (defining “judgment” in
justice court proceedings as “a final order by the court that states the relief, if any, a
party is entitled to or must provide.”). Whether a judicial decree is a final judgment
20 must be determined from its language and the record in the case. Lehmann, 39
S.W.3d at 192.
The September 2 Order did not satisfy Lehmann’s finality requirement. For
example, it did not award any costs or identify the specific horses to be awarded to
the various interested parties. The September 2 Order did not contain finality
language, and, instead, expressly referenced the “court order and agreement
reflected and entered by the parties.” See id. at 200 (observing that “the language of
an order or judgment can make it final . . . if that language expressly disposes of all
claims and all parties” and that “[t]he intent to finally dispose of the case must be
unequivocally expressed in the words of the order itself”). The justice court signed
the referenced “court order and agreement” on September 19, 2016, which is 17 days
later. The Agreement provided the details of Digilio’s arrangement with the
WCDAO regarding disposition of all 34 seized horses, and it expressly provided,
“This agreement is a reflection of the agreement and court order entered in the
Honorable Court on September 2, 2016 and is adopted by the Court as the final and
binding court order in this case.” (Emphasis added.) Thus, based on the language of
the orders themselves and the record in this case, we determine that the September
21 19 agreement and order was the final order, not the September 2 Order.4 See id.; see
also TEX. R. CIV. P. 500.2(o).
The October 3 Supplemental Order was signed within 14 days after the justice
court’s adoption of the Agreement as its “final and binding order” resolving the
divestiture proceedings. Thus, the October 3 Supplemental Order was rendered
while the justice court still had plenary power. See TEX. R. CIV. P. 507.1 (providing
that justice court loses plenary power 21 days after later of date judgment is signed
or date motion to set aside, motion to reinstate, or motion for new trial, if any is
denied).
Accordingly, we overrule TBAR’s contention that the October 3
Supplemental Order was rendered outside the justice court’s plenary power.
B. Collateral Attack
TBAR’s underlying suit seeking a declaratory judgment that the justice
court’s orders in this case were void constitutes a collateral attack. Digilio moved
for summary judgment on TBAR’s declaratory judgment claims, asserting in
relevant part, that the collateral attack was improper because the justice court’s
4 Even if the September 2 Order could be considered a final order, we note that the September 19 Agreement was adopted by the justice court as an order and signed within 21 days; therefore, was a new judgment signed within the justice court’s original plenary power. See TEX. R. CIV. P. 507.1 22 orders were final and TBAR lacked standing to challenge the justice court’s
“A collateral attack is an attempt to avoid the binding force of a judgment in
a proceeding not instituted for the purpose of correcting, modifying, or vacating the
judgment, but in order to obtain some specific relief which the judgment currently
stands as a bar against.” Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005); see
PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 272 (Tex. 2012) (“A collateral attack
seeks to avoid the binding effect of a judgment in order to obtain specific relief that
the judgment currently impedes.”). Collateral attacks on final judgments are
generally not allowed because policy favors finality of court judgments. Browning,
165 S.W.3d at 345; Chambers, 261 S.W.3d at 758.
“Only a void judgment may be collaterally attacked.” Browning, 165 S.W.3d
at 346. “A judgment is void only when it is apparent that the court rendering
judgment had no jurisdiction of the parties or property, no jurisdiction of the subject
matter, no jurisdiction to enter the particular judgment, or no capacity to act.”
Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 863 (Tex. 2010) (citing Browning,
165 S.W.3d at 346); see Rivera, 379 S.W.3d at 272. A void order is subject to
collateral attack in a new lawsuit, while a voidable order must be corrected by direct
attack; unless successfully attacked, a voidable judgment becomes final. Joachim,
315 S.W.3d at 863.
23 TBAR argues that the justice court’s October 3 Supplemental Order is void
because it was signed outside the court’s plenary power. As we stated above, this
argument lacks merit. In analyzing TBAR’s collateral attack, we examine the justice
court’s judgment as including the supplemental order. The justice court thus had
jurisdiction over the parties and property, jurisdiction over the subject matter, and
capacity to act. See Joachim, 315 S.W.3d at 863.
TBAR further asserts that the justice court lacked jurisdiction to enter the
particular judgment it entered here, basing its argument on the justice court’s alleged
failure to comply with the provisions of Health and Safety Code subsections
821.023(d) and (e)(2)(A). These provisions require that, “[i]f the court finds that the
animal’s owner has cruelly treated the animal, the owner shall be divested of
ownership of the animal,” and that “[a]fter a court finds that an animal’s owner has
cruelly treated the animal, the court shall order the owner to pay all court costs,”
including “the costs incurred by . . . a nonprofit animal welfare organization in . . .
housing and caring for the animal during its impoundment.” TEX. HEALTH & SAFETY
CODE § 821.023(d), (e)(2)(A).
Contrary to TBAR’s assertions, the justice court’s judgment does not reflect
a failure to comply with the requirements of section 821.023. The justice court
found, in its October 3 Supplemental Order, that the 24 horses awarded to TBAR
“were subject to unintentional mistreatment by Digilio,” but it made no findings
24 regarding the treatment of the other 10 horses. Thus, there is no finding that Digilio
cruelly treated the horses that are the subject of this suit, and the statutory language
requiring that she be divested of those horses and required to pay the enumerated
court costs was not triggered. See TEX. HEALTH & SAFETY CODE § 821.023(d)
(requiring divestiture “if” court finds owner treated animal cruelly); id.
§ 821.023(e)(2)(A) (requiring award of costs, including cost of housing and caring
for animal during impoundment, “after” court finds animal’s owner treated it
cruelly).
Even if the record demonstrated the justice court’s failure to properly apply
the provisions of chapter 821—a conclusion we do not make here—TBAR has
provided no authority indicating that the requirements of section 821.023(d) and
(e)(2)(A) are jurisdictional such that misapplying them would render the justice
court’s judgment void. Mandatory statutory duties are not necessarily jurisdictional.
In re Brehmer, 428 S.W.3d 920, 922 (Tex. App.—Fort Worth 2014, orig.
proceeding) (citing Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 494 (Tex. 2001)).
Absent clear legislative intent, we resist classifying a statutory provision as
jurisdictional. Id. (citing City of DeSoto v. White, 288 S.W.3d 389, 393 (Tex. 2009)).
None of the language in subsections 821.023(d) or (e) indicates that a justice court
loses jurisdiction over the animal cruelty matter by misapplying the statutory
provisions. See TEX. HEALTH & SAFETY CODE § 821.023; see id. § 821.025
25 (providing that owner may appeal justice court’s divestiture order to county court or
county court at law and that decision of county court or county court at law is final
and may not be further appealed); cf. In re Brehmer, 428 S.W.3d at 922–23
(determining that chapter 821’s statutory deadlines are not jurisdictional).
Furthermore, Digilio asserts that, because TBAR was not a party to the justice
court’s judgment, TBAR cannot now collaterally attack that judgment. While it is
well-established that an individual who is not a party to a final judgment generally
lacks standing to collaterally attack the judgment, there is an exception for
individuals who can establish that their interests are directly and necessarily affected
by the judgment itself. See In re Ocegueda, 304 S.W.3d 576, 580–81 (Tex. App.—
El Paso 2010, pet. denied); Grynberg v. Christiansen, 727 S.W.2d 665, 666 (Tex.
App.—Dallas 1987, no writ); see also Kingman Holdings, LLC v. Mortg. Elec.
Registration Sys., Inc., No. 05-15-01353-CV, 2016 WL 8115937, at *5 (Tex. App.—
Dallas Oct. 27, 2016, no pet.) (mem. op.) (“A nonparty can collaterally attack an
existing judgment if the judgment directly and necessarily affects the nonparty’s
rights.”). Having an “interest affected by the judgment” means having an interest in
the subject matter to which the judgment relates. Caballero v. Vig, 600 S.W.3d 452,
459 (Tex. App.—El Paso 2020, pet. denied) (citing Grynberg, 727 S.W.2d at 667).
“Conversely, having only a tangential or indirect interest in the judgment is
26 insufficient to bestow standing upon a non-party for purposes of allowing a collateral
attack on the judgment.” Id.
TBAR asserts that it has standing to collaterally attack the judgment because
its interests were directly and necessarily affected by the justice court’s judgment.
We disagree. TBAR’s interest in the horses is tangential or indirect and flows only
from its involvement with the WCDAO. See id. Nothing in the justice court’s
judgment bound TBAR—it was not required to accept ownership of the horses nor
payment for the non-profit services it had provided to the county—and nothing in
the justice court’s judgment stands as a bar against the relief that TBAR seeks. See
Browning, 165 S.W.3d at 346. Rather, the justice court’s judgment resolved the
dispute between Digilio and WCDAO.
Finally, we observe that the fact that TBAR was potentially harmed by the
justice court’s application of subsections 821.023(d) and (e) does not automatically
give rise to a private cause of action in favor of TBAR that could have been impacted
or barred by the justice court’s judgment. See, e.g., Witkowski v. Brian, Fooshee and
Yonge Props., 181 S.W.3d 824, 831 (Tex. App.—Dallas 2005, no pet.) (discussing
statutory enforcement schemes and holding that courts apply “strict rule of
construction” and “imply causes of action only when the drafters’ intent is clearly
expressed from the language as written”; observing that “a right of enforcement
should not be implied simply because the statute ‘fails to adequately protect intended
27 beneficiaries’”) (quoting Brown v. Arturo De La Cruz, 156 S.W.3d 560, 567 (Tex.
2004).
Accordingly, TBAR’s attempt to relitigate the merits of issues tried in the
justice court constitute an impermissible collateral attack on the justice court’s
judgment. See Chambers, 261 S.W.3d at 759 (citing Tesco Am., Inc. v. Strong Indus.,
Inc., 221 S.W.3d 550, 556 & n.31 (Tex. 2006) and Browning, 165 S.W.3d at 346);
see also Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003) (“In general, as long as the
court entering a judgment has jurisdiction of the parties and the subject matter and
does not act outside its capacity as a court, the judgment is not void.”). “Errors other
than lack of jurisdiction, such as ‘a court’s action contrary to a statute or statutory
equivalent,’ merely render the judgment voidable so that it may be ‘corrected
through the ordinary appellate process or other proper proceedings.’” Reiss, 118
S.W.3d at 443. Here, TBAR never intervened in the justice court and, as a non-party
to the justice court’s judgment, it could not pursue a direct appeal to correct errors
that rendered the judgment only “voidable.” See TEX. HEALTH & SAFETY CODE §
821.025 (procedures for appeal by owner who has been divested of ownership of
animal). TBAR further non-suited its other claims for affirmative relief against
Digilio, including its claims under theories of quantum meruit, unjust enrichment,
and a stable-keeper’s lien, leaving only its collateral attack seeking a declaratory
judgment voiding the justice court’s judgment pending before us.
28 The only claims before this Court on appeal are TBAR’s collateral attack
seeking a declaratory judgment that portions of the justice court’s judgment are void.
As set out above, TBAR is not entitled to collaterally attack the justice court’s
judgment because, as a matter of law, the justice court’s judgment is not void. So,
TBAR’s collateral attack on it fails. See Rivera, 379 S.W.3d at 271 (“It is well settled
that a litigant may attack a void judgment directly or collaterally, but a voidable
judgment may only be attacked directly.”). We conclude that the trial court did not
err in granting Digilio’s motion for summary judgment on this ground.5
We overrule TBAR’s complaints on appeal and affirm the trial court’s
judgment denying TBAR’s claims for declaratory relief from the justice court’s
Digilio’s Appeal
In her sole issue on appeal, Digilio challenges the trial court’s grant of
summary judgment in favor of TBAR, ordering that Digilio take nothing on her
claims for conversion, tortious interference with a contract, and injunctive relief.
The elements of a conversion claim are (1) the plaintiff owned or had
possession of the property or entitlement to possession; (2) the defendant unlawfully
and without authorization assumed and exercised control over the property to the
5 Because this ground supports the trial court’s judgment, we need not address the remaining arguments of the parties. 29 exclusion of, or inconsistent with, the plaintiff’s rights as an owner; (3) the plaintiff
demanded return of the property; and (4) the defendant refused to return the property.
Universal Plant Servs., Inc. v. Dresser-Rand Grp., Inc., 571 S.W.3d 346, 363 (Tex.
App.—Houston [1st Dist.] 2018, no pet.). A “plaintiff must prove damages before
recovery is allowed for conversion.” See United Mobile Networks, L.P. v. Deaton,
939 S.W.2d 146, 147 (Tex. 1997) (per curiam); Alan Reuber Chevrolet, Inc. v. Grady
Chevrolet, Ltd., 287 S.W.3d 877, 889 (Tex. App.—Dallas 2009, no pet.). The
elements of tortious interference with a contract are (1) an existing contract subject
to interference; (2) a willful and intentional act of interference with the contract; (3)
that proximately caused the plaintiff’s injury; and (4) caused actual damages or loss.
Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000).
Thus, both of these causes of action require evidence of damages in order for a
plaintiff to recover. See id.; Deaton, 939 S.W.2d at 147.
Relevant here, TBAR moved for no-evidence summary judgment against
Digilio on her claims for conversion and tortious interference. TBAR asserted that
Digilio provided no evidence of her damages flowing from TBAR’s purported acts
interfering with her ownership of the seven horses that Digilio was awarded by the
justice court. Thus, the burden shifted to Digilio to present evidence raising a
genuine issue of material fact as to this element challenged in TBAR’s motion. See
Tex. R. Civ. P. 166a(i); Mack Trucks, Inc., 206 S.W.3d at 582.
30 In her response, Digilio asserted that TBAR “was placed on notice” of her
claims prior to the appointment of the receiver in the McCumber case, that “every
entity involved in this case,” including the WCDAO and justice court, “contends
Digilio’s seven (7) horse[s] should be returned to Digilio [rather] than to [TBAR],”
and that there was no finding that she treated those seven horses cruelly. She also
pointed to the trial court’s previous summary judgment rulings, denying TBAR
affirmative relief on its own declaratory judgment claims and this Court’s judgment
affirming the trial court’s denial of TBAR’s temporary injunction against Waller
County. However, Digilio did not provide any evidence of harm that she suffered as
a result of TBAR’s alleged conversion or tortious interference.
On appeal, Digilio continues to assert these same arguments. She now argues
that TBAR was placed on actual notice of her property interests and of her superior
rights to the horses. She points to the trial court’s prior denials of summary judgment
on TBAR’s own motions seeking declaratory judgments as a matter of law and to
this Court’s opinion affirming the trial court’s denial of a temporary injunction
against Waller County. Digilio also argues that section 821.023(d) does not apply to
the horses awarded to her, that the justice court’s October 3 Supplemental Order is
final, and that TBAR lacks standing to challenge the justice court’s orders.
Digilio asserts in a conclusory fashion that she raised fact issues concerning
her affirmative claims for relief, but she has not pointed us to any evidence in the
31 record that demonstrates harm caused to her by TBAR’s purported conversion or
tortious interference. TBAR argues that she cannot point to any such evidence in
light of the other legal proceedings that prevented Digilio from exercising clear
ownership of the seven horses. TBAR specifically referenced the underlying dispute
regarding ownership of the horses—which involved an interlocutory appeal of a
temporary injunction preventing enforcement of the justice court’s judgment and
extensive litigation—and the receiver’s action in the McCumber case, finding that
the horses were subject to turnover and requesting that TBAR keep them until the
ownership dispute could be resolved. We agree with TBAR.
Accordingly, because Digilio has failed to provide a scintilla of evidence on
an essential element of her conversion and tortious interference claims, we conclude
that the trial court properly granted TBAR’s no-evidence motion for summary
judgment. See TEX. R. CIV. P. 166a(i) (providing that “[t]he court must grant the
motion unless the respondent produces summary judgment evidence raising a
genuine issue of material fact” on challenged elements); see, e.g., Prudential Ins.
Co. of Am., 29 S.W.3d at 77 (damages are element of tortious interference claim);
Deaton, 939 S.W.2d at 147 (plaintiff must prove damages to recover for conversion).
We likewise conclude that, because she cannot recover on her pleaded claims
for conversion or tortious interference, Digilio’s claim for injunctive relief likewise
fails. Injunctive relief is available only if liability is established under a cause of
32 action. See Valenzuela v. Aquino, 853 S.W.2d 512, 514 n.2 (Tex. 1993); Cooper v.
Litton Loan Servicing, LP, 325 S.W.3d 766, 769 (Tex. App.—Dallas 2010, pet.
denied). We have held that summary judgment was proper on Digilio’s claims for
conversion and tortious interference; thus, her injunctive-relief remedy likewise
fails. See Etan Indus., Inc. v. Lehmann, 359 S.W.3d 620, 625 n.2 (Tex. 2011) (per
curiam). Summary judgment on this ground was also proper. See Tex. R. Civ. P.
166a(i).6
We overrule Digilio’s complaints on appeal and affirm the trial court’s take-
nothing judgment on her claims against TBAR.
Conclusion
We affirm the judgment of the trial court.
Richard Hightower Justice
Panel consists of Justices Goodman, Landau, and Hightower.
6 Because we conclude that this ground supports the trial court’s judgment, we need not address the remaining complaints raised by the parties. See Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). 33