Court of Appeals of Texas, Second District, Fort Worth
ANDREA D. SMITH APPELLANT
PALLIDA, L.L.C., SUCCESSOR IN INTEREST OF DODEKA, L.L.C. AND FROST BANK APPELLEES
THE 43RD DISTRICT COURT OF PARKER COUNTY TRIAL COURT NO.
SUDDERTH, C.J.; WALKER and MEIER, JJ.
MEMORANDUM OPINION 
SUDDERTH CHIEF JUSTICE
central question in this proceeding is whether Appellant
Andrea D. Smith's request for findings of fact and
conclusions of law extended her deadline to file a notice of
appeal. Because the trial court's decision was made as a
matter of law, we hold that her request did not extend her
deadline and dismiss the appeal.
The proceedings below
February 2008, Dodeka, L.L.C. obtained a default judgment
against Smith. Nine years later, in January 2017, Appellee
Pallida, L.L.C. filed an application for writ of garnishment
alleging that it was Dodeka's successor-in-interest and
seeking to garnish funds belonging to Smith and held by Frost
Bank. In support of its application, Pallida attached an
affidavit by its custodian of records, Courtney Dodd, that
asserted its status as a successor-in-interest, stated that
no payments had been made toward the judgment against Smith,
provided that Pallida had located no nonexempt assets
belonging to Smith that were available to satisfy the
judgment, and recited the efforts taken by Pallida and its
predecessors to collect the judgment. A writ of garnishment
was issued on January 31, 2017.
March 16, 2017, Smith filed a motion to dissolve the writ.
Smith's arguments can be summarized as follows: (1) the
writ of garnishment was defective because it failed to
include the language required by rule 663a, see Tex.
R. Civ. P. 663a; (2) Dodd's affidavit was defective
because it did not establish how she obtained any
"personal knowledge" of the debt or Smith's
assets; (3) Pallida did not establish standing because the
purported assignments of the debt from Dodeka and,
eventually, to Pallida were defective; and (4) inconsistent
statements were made over the years as to who owned the debt.
An affidavit signed by Smith was attached to the motion in
which Smith asserted that the statements in the motion
regarding what Dodd knew or did not know about property Smith
owned in Texas were true and correct and that Smith had not
provided any information regarding her property to Dodd.
filed a response and attached a second affidavit by Dodd that
detailed the progression of assignments from Dodeka to three
successor companies and finally to Pallida in 2014. Attached
to the affidavit were copies of the assignments and bills of
sale evidencing the transfers over the years.
April 20, 2017 hearing, Smith's counsel focused on his
arguments that (1) the writ of garnishment failed to include
mandatory language required by rule 663a, see id.;
(2) the business records affidavit submitted by Pallida in
support of the garnishment did not establish personal
knowledge; and (3) Pallida did not establish standing as a
successor-in-interest. No evidence was admitted and no
testimony was offered by either side. At the conclusion of
the hearing, the trial court denied the motion to dissolve
thereafter, Pallida moved for entry of a judgment of
garnishment. At a brief hearing on the motion, Smith's
counsel argued that Pallida had not proven that Smith was
served with the writ of garnishment. Although the parties
stipulated as to the amount of Frost Bank's
attorney's fees, Smith's counsel also complained that
there was nothing showing how the final amount of the writ
($30, 644.14) was calculated. He also took issue with the
order's provision that, upon appeal or reformation of the
judgment, the funds should be returned to the registry of the
trial court. The trial court again overruled his objection to
the form of the writ, overruled his objection regarding the
calculation of the amount due, and sustained his objection
regarding the return of funds. The trial court signed a final
judgment of garnishment on June 27, 2017, awarding $30,
644.14 to Pallida. On July 14, 2017, Smith filed a request
for findings of fact and conclusions of law under rule 296,
which if appropriate, would have extended Smith's
original deadline for filing a notice of appeal-July 27,
2017-to September 25, 2017. See Tex. R. Civ. P. 296,
Tex.R.App.P. 26.1(a)(4). On August 4, 2017, the trial court
sent a letter to the parties expressing its concern that
findings of fact and conclusions of law may not be
appropriate and requesting the parties to submit any
authority indicating otherwise. Thus, Smith was apprised of
the trial court's concern well within the period of time
when Smith could have invoked this court's jurisdiction
by filing a notice of appeal. See Verburgt v.
Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (holding that
the filing of a perfecting instrument within the fifteen-day
period after the date it was due implied a request for an
extension); see also Hone v. Hanafin, 104 S.W.3d
884, 886 (Tex, 2003) (applying Verbugt to a notice
of appeal filed in fifteen-day window for extension). Instead
of filing her notice of appeal on August 4-or at least by
August 11-on August 11, Smith filed a notice of past due
findings of fact and conclusions of law. See Tex. R.
Civ. P. 297. In the weeks that followed, both
parties filed letter briefs arguing over whether findings of
fact and conclusions of law were appropriate in this case. In
the end, the trial court did not issue any findings of fact
and conclusions of law.
filed a notice of appeal on September 25, 2017, 90 days after
the final judgment was signed.
Pallida's motion to dismiss
has filed a motion to dismiss Smith's appeal arguing that
because Smith's request for findings of fact and
conclusions of law did not serve to extend the deadline for
filing her notice of appeal, her notice of appeal was
untimely. In response, Smith argues that because the trial
court made factual determinations in denying her motion to
dissolve the writ and in denying her objections to the form
of the final judgment of garnishment, her appellate deadlines
were extended by her request for findings and conclusions.