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Smith v. Pallida, L.L.C.

Court of Appeals of Texas, Second District, Fort Worth

February 15, 2018

ANDREA D. SMITH APPELLANT
v.
PALLIDA, L.L.C., SUCCESSOR IN INTEREST OF DODEKA, L.L.C. AND FROST BANK APPELLEES

         FROM THE 43RD DISTRICT COURT OF PARKER COUNTY TRIAL COURT NO. CV17-0117

          PANEL: SUDDERTH, C.J.; WALKER and MEIER, JJ.

          MEMORANDUM OPINION [1]

          BONNIE SUDDERTH CHIEF JUSTICE

         The 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.

         I. The proceedings below

         In 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.

         On 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.

         Pallida 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.

         At the 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 the writ.

         Shortly 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.

         Smith filed a notice of appeal on September 25, 2017, 90 days after the final judgment was signed.[2]

         II. Pallida's motion to dismiss

         Pallida 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.

         A. ...


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