Court of Appeals of Texas, Second District, Fort Worth
Adam I. Barrow, Appellant
Wells Fargo Bank, N.A., Appellee
Appeal from the 431st District Court Denton County, Texas
Trial Court No. 18-8946-431
Sudderth, C.J.; Kerr and Birdwell, JJ.
SUDDERTH, CHIEF JUSTICE
Wells Fargo Bank, N.A., garnishor, filed an application for
writ of garnishment against itself as garnishee, on September
25, 2018, to collect on its judgment against Appellant Adam
I. Barrow, the judgment debtor. The writ of garnishment
issued the following day, and on October 17, Wells Fargo as
garnishee filed an answer. On November 16, Wells Fargo
entered into an agreed final judgment with itself, awarding
$6, 751.44 from Barrow's Wells Fargo account to Wells
Fargo, awarding $650.00 in attorney's fees against
Barrow's account in favor of Wells Fargo, and assessing
filing fees and court costs in the action against Barrow. On
December 14, Barrow filed a motion for new trial, challenging
the sufficiency of the affidavit supporting the application
and agreed judgment and asserting that some of the seized
money belonged to his 11-year-old son.
time the judgment was signed, no proof of service on Barrow
was on file. See Tex. R. Civ. P. 663a (providing
that the judgment debtor-the "defendant"- in a
garnishment action "shall be served in any manner . . .
provided in Rule 21a"); see also Tex. R. Civ.
P. 21a(a)(2) (providing that "[e]very notice required by
these rules . . . may be served by delivering a copy to the
party to be served . . . in person, mail, by commercial
delivery service, by fax, by email, or by such other manner
as the court in its discretion may direct"). But in an
affidavit attached to its response to Barrow's motion for
new trial, Thomas Sellers, attorney for Wells Fargo, as
garnishor, averred that in compliance with rule 663a,
Wells Fargo had sent Barrow the required notices and
documents by first class mail and certified mail, return
receipt requested on October 12, 2018. In its response to
Barrow's motion, Wells Fargo argued that because Barrow
was not a party to the case, he lacked standing to bring a
motion for new trial.
January 25, 2019, after hearing argument on Barrow's
motion for new trial, the trial court found that Barrow did
not have standing. In its written order denying the motion,
which was signed on the same day, the trial court ruled,
"After reviewing the evidence,  the court concludes that the
Motion should be denied, as Adam Barrow does not have
issues, Barrow complains that he had standing to file the
motion for new trial and that the evidence was legally and
factually insufficient to grant a judgment of garnishment to
is a statutory proceeding governed by civil practice and
remedies code chapter 63 and rules of civil procedure
657-679. See Tex. Civ. Prac. & Rem. Code Ann.
§§ 63.001-.008; Tex.R.Civ.P. 657-679. A
post-judgment garnishment proceeding is a quasi in rem action
brought by a judgment creditor (the garnishor) against
another party (the garnishee) who holds property or funds
belonging to the judgment debtor. Bank One, Tex., N.A. v.
Sunbelt Sav., F.S.B., 824 S.W.2d 557, 558 (Tex. 1992);
Zeecon Wireless Internet, LLC v. Am. Bank of Tex.,
N.A., 305 S.W.3d 813, 816 (Tex. App.-Austin 2010, no
pet.). In the garnishment action, the garnishor seeks to have
the property or funds held by the garnishee applied toward
payment of the underlying judgment against the debtor.
Zeecon, 305 S.W.3d at 816.
garnishment was unknown at common law and is "purely a
creature of statute," id., the Texas Supreme
Court has held that garnishment proceedings "cannot be
sustained unless they are in strict conformity with statutory
requirements." Beggs v. Fite, 106 S.W.2d 1039,
1042 (Tex. 1937); see also Zeecon, 305 S.W.3d at 816
(observing that the supreme court has held that garnishment
proceedings cannot be sustained without strictly conforming
to the statutory requirements and related rules governing
such proceedings). This is because the remedy of garnishment
is "summary and harsh." Beggs, 106 S.W.2d
ensure a debtor's due process right to not be deprived of
his property without notice and opportunity to be heard, rule
663a requires a garnishor to serve the debtor with notice of
the garnishment and of his rights to regain his property.
Tex.R.Civ.P. 663a; see also Hering v. Norbanco Austin I,
Ltd., 735 S.W.2d 638, 639-41 (Tex. App.-Austin 1987,
writ denied) (noting that in 1978, the Texas Rules of Civil
Procedure relating to garnishment actions were amended in
response to prejudgment garnishment procedures that were
declared unconstitutional based on U.S. Supreme Court
holdings in Sniadach v. Family Fin. Corp., 394 U.S.
337, 89 S.Ct. 1820 (1969), and Fuentes v. Shevin,
407 U.S. 67, 92 S.Ct. 1983 (1972)). Thus, a garnishor's
failure to strictly conform with rule 663a's notice
requirement will result in a void judgment. See
Zeecon, 305 S.W.3d at 818-20 (holding that "failure
to properly serve the debtor deprived the trial court of
jurisdiction over the debtor's property-the res,"
but pointing out that a "mere irregularity" is
waivable and will not render the garnishment judgment void).
supreme court has identified "three parties" to a
garnishment action: (1) a creditor (the garnishor), (2) a
debtor (also referred to as "the defendant"), and
(3) a third person who possesses the debtor's funds or
owes money to the debtor (the garnishee). Orange Cty.
v. Ware, 819 S.W.2d 472, 474 (Tex. 1991) (op. on
reh'g). Thus, while the judgment debtor (the defendant)
is not a "necessary party" to the proceeding, he is
nevertheless a party to the proceeding who has rights in the
process. Hering, 735 S.W.2d at 642; see
also Tex. R. Civ. P. 663a (providing the right to
notice), 664 (providing the right to replevy), 664a
(providing the right to have the writ of garnishment vacated,
dissolved, or modified).
judgment debtor, or "defendant" in the garnishment
action, Barrow had standing to participate in the proceeding.
He had standing to replevy or to file a motion seeking to
have the garnishment vacated, dissolved, or modified.
See Tex. R. Civ. P. 664-664a. But first and
foremost, he had the right to notice of the garnishment
action. See Tex. R. Civ. P. 663a; see also
Hering, 735 S.W.2d at 641 & n.3 (considering,
without deciding, whether a defendant in a post-judgment
garnishment action has a due process right or merely a
rule-created right to notice). On appeal, Barrow complains of
defects in service of the garnishment action.
Fargo makes an interesting argument: that Barrow was required
to intervene in the garnishment proceeding to acquire
standing but that it was too late for Barrow to intervene
once the agreed judgment had been signed. Whether Wells
Fargo's approach is correct appears to be a matter of
first impression. But as we see it, Wells Fargo's
position, were we to adopt it, would create a quintessential
catch-22 for defendants in garnishment actions.
considering Wells Fargo's argument, we note as a
practical matter that complaints regarding defective service
normally occur postjudgment because that is when a judgment
debtor who has not been properly served would become aware of
the consequences of the garnishment action. To require a
garnishment defendant to intervene in a garnishment action at
a time prior to acquiring proper notice of the proceeding
would render meaningless the right to notice of the
proceedings in the first place because most
garnishment-action defendants would learn of improper service
only after it was too late to complain. Such a paradox in ...