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ZZ&Z Properties, Ltd. v. Jang

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

January 4, 2018

ZZ&Z PROPERTIES, LTD, Appellant,
v.
SUNG JOON JANG AND SUNMI A. JANG, Appellees.

          On appeal from the 414th District Court of McLennan County, Texas.

          Before Chief Justice Valdez and Justices Contreras and Benavides

          MEMORANDUM OPINION [1]

          ROGELIO VALDEZ Chief Justice

         Appellant, ZZ&Z Properties, Ltd. ("ZZ&Z"), appeals from the trial court's summary judgment in favor of appellees, Sung Joon Jang and Sunmi A. Jang (collectively the "Jangs"). By one issue, ZZ&Z contends that the trial court erred by granting the Jangs' motion for summary judgment and denying appellant's motion for summary judgment on appellant's wrongful execution claim because ZZ&Z established that, as an unnamed party, it was not subject to execution of the judgment as a matter of law. We affirm.

         I. Background

         Saddle Brook West Apartments (the "Complex") sued the Jangs for damages to an apartment they rented in 2008. The Jangs countersued the Complex for attorney's fees, and the Jangs prevailed in a jury trial. The Complex appealed to the county court of law, and a jury found that the Complex was estopped by its conduct from enforcing the lease. A final judgment was entered in favor of the Jangs. The Complex appealed to the Waco court of appeals, and it affirmed the judgment. Saddle Brook West Apartments v. Sung Joon Jang and Summi A. Jang, 2013 WL 3927756, at *4 (Tex. App.-Waco 2013, no pet.).

         Following issuance of the court of appeals' mandate, the Jangs filed an abstract of judgment with the county clerk and requested a writ of execution to collect on the judgment of $80, 000. The Jangs, however, named ZZ&Z as the judgment debtor and not the Complex. After ZZ&Z complained, a second writ was issued naming the Complex as the judgment debtor. The Constable posted two notices to sell the Complex, which is real estate owned by ZZ&Z. The sale was not executed because ZZ&Z tendered the funds to satisfy the judgment in the amount of $80, 000. The Constable applied the funds and issued a refund to ZZ&Z in the amount of $255.06. The Jangs disputed the refunded amount claiming that ZZ&Z still owed $272.33 under the judgment for per diem interest. The Jangs also claimed that ZZ&Z owed additional funds for attorney's fees and costs.

         ZZ&Z filed suit in the district court to remove the lien on the property that the Jangs refused to lift due to their claim of additional per diem interest, attorney's fees, and costs. ZZ&Z further sued the Jangs, in pertinent part, for wrongful execution. The Jangs counterclaimed for declaratory judgment that ZZ&Z was liable for amounts due and owing under the judgment and for attorney's fees.

         Both sides filed cross motions for summary judgment. The trial court granted ZZ&Z's motion for summary judgment in part and denied it in part. The trial court found that the judgment had been satisfied and that the Jangs would have to lift the lien on ZZ&Z's property. The trial court denied ZZ&Z's claim for wrongful execution. The trial court partially granted the Jangs' motion for summary judgment, ordering that ZZ&Z take nothing on its wrongful execution claim. The trial court denied the Jangs' motion for summary judgment seeking additional relief under the judgment. This appeal followed.

         II. Standard of Review and Applicable Law

         In a traditional motion for summary judgment, the movant has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a; Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). If the movant's motion and summary judgment proof facially establish a right to judgment as a matter of law, the burden shifts to the non-movant to raise a material fact issue sufficient to defeat summary judgment. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). A defendant seeking a traditional motion for summary judgment must either conclusively disprove at least one element of each of the plaintiff's causes of action or plead and conclusively establish each essential element of an affirmative defense. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam).

          We review a summary judgment de novo to determine whether a party's right to prevail is established as a matter of law. Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex. App.-Dallas 2000, pet. denied). When both sides move for summary judgment and one is granted and the other denied, we determine all questions presented and render the judgment the trial court should have rendered. Lubbock Cty. v. Trammel's Lubbock Bail Bonds, 80 S.W.3d 580, 583 (Tex. 2002).

         III. Discussion

         By its sole issue, ZZ&Z contends that the trial court erred by granting the Jangs' motion for summary judgment and denying its motion for summary judgment on ZZ&Z's wrongful execution claim. ZZ&Z argues that it established as a matter of law that, as an unnamed party in the underlying suit, it was not subject to execution of the judgment as a matter of law. Specifically, ZZ&Z asserts that the Jangs acquired a judgment against the Complex, not ZZ&Z, and that if the Jangs wanted to substitute ZZ&Z as the proper defendant, they were required under Rule 28 of the Texas Rules of Civil Procedure to have done so in ...


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