Texas Employers' Insurance Ass'n v. Engelke

790 S.W.2d 93, 1990 Tex. App. LEXIS 1164

• Court: Court of Appeals of Texas
• Decided: May 16, 1990
• Docket: No. 01-90-00397-CV
• Status: Published

Opinions

EVANS, Chief Justice.

Relator seeks leave to file a writ of mandamus, directing respondent, the Honorable Roy Engelke, Judge of the 10th Judicial District Court of Galveston County, Texas, to vacate an order dated April 27, 1990, which granted the motion of the judgment creditor, Howell Puckett, Jr., the real party-in-interest, to release funds seized by the sheriff of Dallas County under writ of execution, and which required said funds to be turned over to the judgment creditor pursuant to the court’s earlier turnover order. Relator also asks for a writ of prohibition preventing the respondent judge from entertaining any further attempt by the judgment creditor to turn over the disputed funds, and asks this Court to enjoin the judgment creditor, his attorneys and agents, from any further attempts to collect the funds seized under the writ of execution and turnover order or to otherwise attempt to enforce the trial court’s judgment.

The essential facts are undisputed. The trial court entered judgment in favor of the real party-in-interest, Howell Puckett, Jr., for the sum of $1,922,577, and relator thereafter perfected its appeal to this Court. Relator then asked the trial court to allow it to suspend execution of the judgment by posting a supersedeas bond in the amount of $0, which request the trial court denied. Instead, the trial court granted the request of the judgment creditor for a turnover of assets to satisfy the judgment. The judgment creditor then sought writ of execution to enforce the judgment. '

On April 17, 1990, at 8:33 a.m., the trial court issued a writ of execution. At 2:00 p.m. that same day, the sheriff of Dallas County executed the writ. At 2:30 p.m., relator issued a letter directing its bank to issue a cashier’s check in the amount of $1,991,119 to the sheriff of Dallas County. The cashier’s check was immediately deposited in the account of the sheriff of Dallas County. On April 20, 1990, the sheriff of Dallas County issued a check in the amount of the judgment, less the sum of $10,000, representing its commission fee, and sent the check via Federal Express to the district clerk of Galveston County. On April 23, 1990, the district clerk received the check and deposited the money in the registry of the court. The judgment creditor then filed a motion for delivery of the money collected under the judgment, and on April 27, 1990, the court granted the order that the relator now seeks to have this Court vacate.

Relator contends, in effect, that it made a good faith effort on April 17, 1990, to timely file its supersedeas bond with the district clerk in Galveston County but that the judgment creditor informed the district clerk that the supersedeas bond was defective because, among other reasons, it was in the amount of the judgment only, and did not obligate the surety to pay interest and costs. See National Convenience Stores, Inc. v. Martinez, 763 S.W.2d 960 (Tex.App.—Houston [1st Dist.] 1989, no writ); Tex.R.App.P. 47(b). Relator contends, therefore, that it did not have sufficient time to revise the bond and secure the required signatures before the Sheriff of Dallas County executed the judgment by levying on relator’s back account. Relator submits that it later filed, on April 19, 1990, a valid supersedeas bond with the Galveston County district clerk, and that this bond was sufficient to supercede the enforcement process, and to preclude the turnover of the funds that had been seized by the sheriff. Relator argues that this bond had the effect of suspending all “further proceedings,” including the court’s distribution of the seized funds placed in its registry.

We overrule relator’s contention. A judgment creditor has a statutory right to have execution issued to enforce a judgment pending appeal, unless and until a valid supersedeas bond has been filed. Anderson v. Lykes, 761 S.W.2d 831, 833 (Tex.App.— Dallas 1988, orig. proceeding); Elliott v. Lester, 126 S.W.2d 756, 758 (Tex.Civ.App.—Dallas 1939, no writ); Bryan v. Luhning, 106 S.W.2d 403, 404 (Tex.Civ.App.—Galveston 1937, no writ). Thus, the pendency of an appeal does not suspend the judgment creditor’s right to seek the aid of the court through execution or the entry of a turnover order. The fact that a judgment debtor is financially unable to file such bond does not destroy this statutory right. Elliott, 126 S.W.2d at 759; Bryan, 106 S.W.2d at 404.

Neither does Texas Rule of Appellate Procedure 47(j) support relator’s contention. That rule simply provides that an “issued” writ of execution, will be suspended by valid supersedeas bond. We have no quarrel with that proposition; it has always been the rule. Here, however, we are faced not with the issuance of an execution, but with the levy of the execution. As noted, it is at this point, the time of the levy, that the judgment lien is fixed.

Relator does not challenge the validity of either the judgment execution or the levy thereunder. A valid levy of an execution creates a lien on the debtor’s property in favor of the judgment creditor, Herndon v. Cocke, 138 S.W.2d 298, 300 (Tex.Civ.App.—El Paso 1940, no writ), which in the case of personal property is prima facie evidence of satisfaction of the execution. Cornelius v. Burford, 28 Tex. 202, 206 (1866); Bryan’s Adm’r v. Bridge, 10 Tex. 149, 151 (1853). This lien is effective from the time of the levy and continues in effect until it is lost or abandoned, or in some way ceases to have vitality and effect. Borden v. McRae, 46 Tex. 396, 400 (1877).

In this case, the judgment creditor’s lien attached at the time the sheriff of Dallas County levied under the judgment execution. Relator’s later filing of the su-persedeas bond did not, and could not, have vacated the fixed rights of the judgment creditor to the proceeds seized pursuant to the levy. The seized funds remained “cus-todia legis,” in the hands of the seizing officer, and thereafter in the registry of the court, pending distribution of such funds to the judgment creditor. Thus, the Sheriff of Dallas County acted simply in a ministerial capacity, as an officer of the court, in returning the seized funds to the District Clerk of Galveston County.

When relief is sought from a trial court’s order by way of writ of mandamus, relator must show either that the action of the trial judge is an abuse of discretion or that the action violates a clear duty under law, and that there is no adequate remedy by appeal. Ryland Group, Inc. v. White, 723 S.W.2d 160, 161-62 (Tex.App.—Houston [1st Dist.] 1986, orig. proceeding). In this case, relator has not provided us with a transcript of the proceedings on the hear ing on the judgment creditor’s motion for delivery of the funds. It was relator’s burden to provide an adequate record for our review, The Englander Co. v. Kennedy, 428 S.W.2d 806, 807 (Tex.1968); Tex.R.App.P. 50(d), and in the absence of a transcript, we cannot determine whether the trial court’s ruling constituted an abuse of its discretion. Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex.1987).

We accordingly deny relator’s petition to file a writ of mandamus, prohibition, and injunction.

The trial court’s order of April 27, 1990, granting the motion of the real party-in-interest to release the funds seized by the sheriff of Dallas County, is stayed until 5:00 p.m., May 25, 1990, in order for relator to seek review of our holding in the Texas Supreme Court.