Butron v. Cantu, 13-97-152-CV

• Decision Date: 07 August 1997
• Docket Number: No. 13-97-152-CV,13-97-152-CV
• Citation: 960 S.W.2d 91
• Parties: Juan Lopez BUTRON, et al., Appellants, v. Mark A. CANTU, et al., Appellees.
• Court: Texas Court of Appeals

Page 91

960 S.W.2d 91

Juan Lopez BUTRON, et al., Appellants, v. Mark A. CANTU, et al., Appellees.

No. 13-97-152-CV.

Court of Appeals of Texas Corpus Christi.

Aug. 7, 1997.

Rehearing Overruled Feb. 19, 1998.

Robert W. Johnson, Jr., Corpus Christi, Ronald G. Hole, Micaela Alvarez, Law Offices of Ronald G. Hole, McAllen, for Appellants.

Jose E. Garcia, Roberto L. Ramirez, William L. Hubbard, Law Office of Jose E. Garcia, McAllen, John E. Lewis, Lewis Pettitt & Hinojosa, McAllen, Jack C. Brock, Galveston, William E. Griffey, Mills Shirley Eckel & Bassett, Galveston, for Appellees.

Before DORSEY, YANEZ and CHAVEZ, JJ.

OPINION

DORSEY, Justice.

This is an appeal ¹ of a temporary Injunction prohibiting collection of a supersedeas bond. The 138th District Court of Cameron County rendered a judgment for Juan Butron and Enrique Villarreal against Mark Cantu. A supersedeas bond was posted to prevent execution on the judgment, which has since been reviewed on appeal and affirmed. Cantu brought an action against the judgment creditors and their attorney for wrongful garnishment in the 93rd District Court of Hidalgo County, which granted a temporary injunction preventing them from removing or converting to cash the bond Cantu posted to supersede the judgment. It is this injunction that we here review. We dissolve the injunction.

Procedural History

Juan Lopez Butron and Luis Enrique Cortinas Villarreal were plaintiffs in a wrongful death suit ² filed in Cameron County and were represented by Attorney Mark A. Cantu. The parties settled the suit, and Butron and Villarreal received $1,627,670 and $1,600,000, respectively.

Afterwards, Butron and Villarreal sued ³ Cantu in the 138th District Court of Cameron County alleging legal malpractice and fraud. In May 1993, the 138th District Court rendered a judgment against Cantu for $1,019,840.53. Shortly after the court signed the judgment, Butron and Villarreal proceeded with post-judgment garnishments in the 138th District Court until Cantu posted a supersedeas bond to prevent further attempts to collect the judgment. The bonds now total $1,410,000.

Cantu appealed the judgment, we affirmed ⁴, and the Texas Supreme Court denied Cantu's application for writ of error. We issued our mandate on February 19, 1997.

Mark A. Cantu, P.C., Mark A. Cantu, individually, and his wife, Roxanne, sued Butron, Villarreal, and Robert W. Johnson, Jr., their attorney, in the 92nd District Court of Hidalgo County. ⁵ Cantu alleged that the defendants, in their attempt to satisfy the judgment, wrongfully garnished two of his bank accounts located in Hidalgo County. Cantu sought actual damages, punitive damages, and attorneys fees. He sought a declaratory judgment seeking to declare the judgment void. He also alleged certain tort causes of action.

On August 26, 1996, ⁶ Cantu filed a bill of review in the 138th District Court of Cameron County seeking to set aside the judgment. He later sought a temporary injunction in that case to prevent Butron et. al. from collecting on the supercedeas bond he had posted in that court. The injunction was denied.

However, on January 22, 1997, the 93rd District Court of Hidalgo County granted a temporary restraining order, restraining Butron and Villarreal from (1) levying or executing on the supersedeas bond filed to secure their judgment in the 138th District Court, and (2) levying or executing on any of Cantu's assets, including applying for a writ of garnishment or other post-judgment collection remedy for the purpose of collecting the judgment. The court extended the TRO.

On February 7, 1997, Cantu filed a second amended original application for injunctive relief and for writ of attachment. ⁷ Cantu asserted four reasons to support his request for an original writ of attachment and/or in the alternative, a temporary injunction order:

1. All of the Defendants are justly indebted to the Plaintiffs [Cantu] as a result of their wrongful conduct engaged in concerning the garnishment efforts;

2. A temporary injunction order seeking to maintain the status quo and/or the attachment of the only asset that exists in the State of Texas, this temporary injunction order and/or alternatively, writ of attachment is not sought for the purpose of injuring or harassing the Defendants but so that this court's jurisdiction can be preserved and the state's compelling state interest in insuring appropriate remedies to its citizens is made;

3. The Plaintiffs in this action will be left with a hollow victory and a useless judgment and will be faced with imminent and irreparable injury and the resulting damages in that Plaintiffs will be left without any ability to collect on their debts and/or on the wrongs committed against all of the Plaintiffs unless this Court grants a writ of attachment and/or issues a temporary injunction order, and

4. There exists specific grounds for the writ of attachment to issue and/or for the temporary injunction order maintaining the status quo to be issued that are supported by law and specifically Section 61.002 of the Texas Civil Practice and Remedies Code.

On February 11, 1997, the 93rd District Court issued a temporary injunction order which stated, in relevant part:

Defendants Juan Lopez Butron and Luis Enrique Cortinas-Villarreal, Universal Surety of America, their agents, representatives, and any and all other persons or entities, are hereby commanded forthwith to desist and refrain from:

1. Intentionally, knowingly, or recklessly destroying, removing, concealing, encumbering, transferring, or otherwise harming or reducing the value of the only known asset, i.e., the Supersedeas Bond of the Defendants, i.e., parties herein, of either of them, with the intent to obstruct the authority of the Court and/or in an effort to defraud any creditors and/or specifically, the Plaintiffs [Cantu] herein who have demonstrated a serious irreparable harm occurring if the status quo is not maintained.

* * * * *

5. In any way removing, encumbering, converting to cash, and ordering the removal of the only known asset out of the hands and from the possession and control of Universal Surety of America Bond # 9631373 as properly amended and identified by the official business records of the said Universal Surety of America.

Analysis

By point one, appellants assert that the judge of the 93rd District Court of Hidalgo County erred in issuing the temporary injunction which in effect enjoined collection of the judgment rendered by the 138th District Court of Cameron County. Appellants argue that the 93rd District Court of Hidalgo County did not have jurisdiction to enjoin the collection of a judgment entered by the 138th District Court of Cameron County. We agree.

Section 65.013 of the Texas Civil Practice & Remedies Code permits suit for an injunction to stay execution of a judgment. TEX. CIV. PRAC. & REM.CODE ANN. § 65.013 (Vernon 1997); McVeigh v. Lerner, 849 S.W.2d 911, 914 (Tex.App.--Houston [1st Dist.] 1993, writ denied). Section 65.023(b) provides, however, that "A writ of injunction granted to stay proceedings in a suit or execution on a judgment must be tried in the court in which the suit is pending or the judgment was rendered." TEX. CIV. PRAC. & REM.CODE ANN. § 65.023(b) (Vernon 1997) (emphasis added).

This requirement that an action to enjoin execution on a judgment must be brought in the court in which the judgment was rendered is jurisdictional, and does not relate merely to venue. In Switzer v. Smith, 300 S.W. 31 (Tex. Comm'n App.1927), the Texas Commission of Appeals said in addressing the statutory predecessor of section 65.023(b), ⁸ "This is more than a mere venue statute, it has to do with jurisdiction."

Section 65.023 is intended to ensure that comity prevails among the various Texas trial courts because "[o]rderly procedure and proper respect for the courts will require that ... attacks upon their judgments should be made in the court rendering such judgment, rather than in other courts indiscriminately." McVeigh, 849 S.W.2d at 914 (quoting Lloyds Alliance v. Cook, 290 S.W.2d 716 718 (Tex.Civ.App.--Waco 1956, no writ.)) The statute controls not just venue of this type of suit, but also jurisdiction as well, so long as the judgment in question is valid on its face. McVeigh, 849 S.W.2d at 914; International Sec. Life Ins. Co. v. Riley, 467 S.W.2d 213, 214 (Tex.Civ.App.--Amarillo 1971, writ ref'd n.r.e.). This latter requirement of facial validity is a requirement that the judgment is not void. McVeigh, 849 S.W.2d at 914; San Jacinto Fin. Corp. v. Perkins, 94 S.W.2d 1213, 1214 (Tex.Civ.App.--El Paso 1936, no writ). "A judgment is void only when it is apparent that the court rendering judgment had no jurisdiction of the parties, no jurisdiction of the subject matter, no jurisdiction to enter the judgment, or no capacity to act as a court. [Other...