Cadles of Grassy Meadow, II, LLC v. Herbert, No. 07-09-00190-CV (Tex. App. 4/27/2010)
| Decision Date | 27 April 2010 |
| Docket Number | No. 07-09-00190-CV.,07-09-00190-CV. |
| Court | Texas Court of Appeals |
| Parties | CADLES OF GRASSY MEADOW, II, LLC AS SUCCESSOR IN INTEREST TO PEOPLES BANK & TRUST, Appellant, v. JOHN HERBERT A/K/A JOHN P. HERBERT, JR., INDIVIDUALLY AND CRUCES CORPORATION REGISTERED AGENT IS JOHN P. HERBERT, JR., AND JANET W. HERBERT, Appellees. |
Appeal from the 84th District Court of Hutchinson County, No. 28,540, Honorable David Gleason, Judge.
Panel B: Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Cadles of Grassy Meadow, II, L.L.C. (Cadles), appeals from the trial court's denial of its petition for writ of scire facias to revive a judgment from 1996 against John Herbert, Cruces Corporation, and Janet W. Herbert, (collectively Herbert). Cadles argues that there was insufficient evidence to support the trial court's finding that the dormant 1996 judgment was orally rendered on April 23, 1996, rather than on the date the trial court signed the written judgment, May 1, 1996. Cadles also challenges the trial court's conclusion of law, based on its finding that its petition was untimely, that the petition would not serve to revive the dormant judgment.
We reverse and render judgment that Cadles's petition was timely and, therefore, serves to revive the dormant 1996 judgment against Herbert.
In 1990, People's Bank and Trust sued Herbert. It appears that the parties eventually reached a settlement of that dispute in 1996. Following a hearing on April 23, 1996, of which we have no reporter's record, the trial court made the following docket entry:
4-23-96 Judgment-Agreement presented. Judgment awarded to Plaintiff in the sum of $8,000.00. Interest 18% from this date. Judgment to be prepared by Mr. Jarvis. Counsel for plaintiff will prepare and submit appropriate judgment for entry.
The entry was not signed by the trial judge but included the following typewritten notation below the entry:
The written judgment was signed on May 1, 1996, and declared as follows:
On April 23, 1996, came on to be considered the above-entitled action.
Plaintiff, PEOPLES BANK & TRUST, Borger, Texas, appeared by it[s] representative, ROBERTA MODEN and through attorney of record BILLY BRITT JARVIS.
Defendants, CRUCES CORPORATION appeared by [its] representative, JOHN P. HERBERT, JR. and through attorney of record CLAY L. BALLMAN.
Defendant[] JOHN P. HERBERT, JR., appeared in person and through attorney of record CLAY L. BALLMAN.
Defendant[], JANET W. HERBERT, [appeared] through attorney of record CLAY L. BALLMAN.
The court called the cause; and all the parties announced that the parties had agreed that the court should enter judgment for $8,000 which judgment will bear interest at 18% per annum and that all property held as collateral on the notes that were initially alleged in this cause had been previously released by the Plaintiff.
Therefore, it is the judgment of this court that plaintiff recover from defendants, Cruces Corporation, John P. Herbert, Jr., and Janet W. Herbert, judgment for $8000 principal and interest which shall bear interest from this date until paid, at the rate of 18 percent per [] annum, together with all costs of suit, for which let execution issue.
SIGNED this 1st day of May, 1996.
On April 28, 2008, Cadles filed its petition for scire facias to revive this 1996 judgment. A writ of scire facias issued calling Herbert to appear and show cause why the 1996 judgment should not be revived. Herbert alleged in response that Cadles's petition was untimely and barred by limitations. After a hearing, the trial court denied Cadles's petition, finding that judgment in the underlying litigation was orally rendered on April 23, 1996. As a result, the trial court concluded Cadles's petition was untimely by five days and would not serve to revive the dormant 1996 judgment.
The crux of the parties' dispute on appeal is whether the trial court rendered judgment in accordance with the settlement agreement on April 23, 1996, or on May 1, 1996. Whether Cadles's petition was timely and would serve to revive the dormant judgment will depend on the date the judgment was rendered in 1996.
Herbert first lodges a challenge based in terms of standing to the evidence showing the complete chain of assignment from People's Bank & Trust to Cadles.
Standing is a necessary component of subject-matter jurisdiction, without which a court lacks authority to hear a case. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444-45 (Tex. 1993). Whether a court properly determined it had subject matter jurisdiction over a case is a question of law we review de novo. See Tex. Dep't. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). In reviewing a party's standing, we take the pleadings as true and construe them in the pleader's favor, and we consider evidence relevant to the jurisdictional inquiry. Id. at 226-28.
The affidavit of Ted Lance, an account officer for Cadles, states as follows:
Specifically, People's Bank and Trust failed and FDIC was name[d] as Receiver of that bank (hereinafter "FDIC-Receiver"). FDIC-Receiver conveyed the Judgment to [Value] Recovery Group, L.P. ("VRG") who subsequently transferred the Judgment to the Cadle Company who thereafter transferred the Judgment to Cadles.
The affidavit then states that true and correct copies of the assignments are attached. However, the copy of the assignment from the FDIC, as receiver, to Value Recovery Group is not attached. Herbert relies on this omission to assert that the record fails to show that Cadles has standing to sue to revive the judgment. We disagree.
We first look to Cadles's allegations and take them as true. In its petition, it alleges that "by virtue of a series of assignments, . . . Cadles became assignee, owner, and beneficiary of all rights in the judgment." Further, we note that Lance's affidavit is evidence that the FDIC, as receiver, assigned the judgment to Value Recovery Group. In his affidavit, Lance affirmatively states that the FDIC conveyed the 1996 judgment to Value Recovery Group, L.P. He goes on to outline the remaining chain of assignments, which are attached to his affidavit.
Although the better practice would have been to include the assignment from the FDIC to Value Recovery Group, we conclude that there is, despite Herbert's contentions, legally sufficient evidence to support the finding that Cadles has standing to sue. See Eaves v. Unifund CCR Partners, 301 S.W.3d 402, 405 (Tex.App.-El Paso 2009, no pet.) (concluding that, although bill of sale did not expressly reference credit card account and did not include a reference to the account as an exhibit attached to bill of sale, other evidence, specifically affidavits attached to pleadings and trial testimony, existed in the record to support the conclusion that the account at issue was sold to Unifund Portfolio and subsequently assigned to Unifund Partners); see also Jaramillo v. Portfolio Acquisitions, L.L.C., No. 14-08-00939-CV, 2010 Tex.App. LEXIS 2219, at *9—*10 (Tex.App.-Houston [14th Dist.] March 30, 2010, no pet. h.) ( Eaves to arrive at similar holding). Our review of the pleadings and evidence relevant to the issue of standing leads us to conclude that Cadles "affirmatively demonstrated the court's jurisdiction to hear the cause." Tex. Ass'n of Bus., 852 S.W.2d at 446.
Cadles specifically challenges the trial court's finding that "[o]n April, 23, 1996, M. Kent Sims, Presiding Judge sitting by assignment, rendered Judgment by agreement in favor of Plaintiff . . . against John Herbert . . . Cruces Corporation, and Janet W. Herbert." Cadles also challenges the trial court's conclusion, based on the preceding finding, that the petition to revive the 1996 judgment was not timely.
In determining whether to issue a writ of scire facias to revive a dormant judgment, the trial court considers the date of the judgment, evidence of any writs of execution issued on the judgment, and the date of the motion to revive the judgment scire facias. See TEX. CIV. PRAC. & REM. CODE ANN. § 31.006 (Vernon 2008), § 34.001(a) (Vernon Supp. 2009). Generally, a scire facias proceeding is a non-evidentiary hearing for which there is no need for findings of fact and conclusions of law. Cadle Co. v. Rollins, No. 01-09-00165-CV, 2010 Tex.App. LEXIS 1421, at *4—*5 (Tex.App.-Houston [1st Dist.] Feb. 25, 2010, no pet.) (mem. op). However, when, as here, the date of rendition of judgment is disputed, the trial court may consider evidence relevant to the date of rendition. See generally Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000) ().
Findings of fact in a case tried to the court have the same force and dignity as a jury's verdict upon questions. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). We, therefore, evaluate the sufficiency of the evidence to support those findings by the same standards for evaluating the legal and factual sufficiency of the evidence to support a jury verdict. See Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). Under the legal sufficiency standard, we must credit evidence that supports the judgment if a reasonable fact finder could, and we must disregard contrary evidence unless a reasonable fact finder could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Unless there is no favorable evidence to support the challenged finding or the contrary evidence renders supporting evidence incompetent or conclusively establishes the opposite of the finding, we must affirm. See id. at 810-11. In reviewing the factual sufficiency of the evidence,...
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