Cross, Kieschnick & Co. v. Johnston
| Decision Date | 31 January 1994 |
| Docket Number | No. 04-93-00332-CV,04-93-00332-CV |
| Citation | 892 S.W.2d 435 |
| Parties | CROSS, KIESCHNICK & COMPANY, a Texas Partnership; Lawrence E. Kieschnick; William R. Cross; James R. Harris; Andrew W. Greenwell and Harris & Thomas, Appellants, v. Leslie JOHNSTON and Wanda Johnston, Appellees. |
| Court | Texas Court of Appeals |
James R. Harris, Andrew M. Greenwell, Harris & Thomas, Corpus Christi, for appellants.
David W. Rogers, Law Offices of Dave Rogers, Inc., San Antonio, Samuel R. Byrd, San Antonio, for appellees.
Before CHAPA, C.J., and PEEPLES and LOPEZ, JJ.
The central issue raised by this appeal is whether the turnover statute can be used by a judgment creditor to cure a misnomer after a trial judgment has become final. We hold that this is an improper use of the turnover statute. We render as void the turnover order and its supplemental order.
Leslie and Wanda Johnston (appellees) litigated their DTPA cause of action against Cross, Kieschnick & Company (Cross & Company) on their Second Amended Original Petition. The petition named the defendant as "Cross, Kieschnick & Company, Inc." In its Third Amended Original Answer Cross & Company verified the following denials: its legal capacity to be sued; partnership as alleged; defect of parties; incorporation as alleged; and doing business under the alleged name.
The jury charge referred to Cross & Company as "Cross, Kieschnick & Company, Inc." Cross & Company objected to the charge because of the reference to them as a corporation. The trial court overruled the objection.
The judgment entered against Cross & Company referred to the party as "Cross, Kieschnick & Company." Subsequently, Cross & Company moved in its motion for new trial that the trial court amend the judgment to read "Cross, Kieschnick & Company, Inc." The motion was granted and the judgment reformed to read "Cross, Kieschnick & Company, Inc."
Subsequently, the Johnstons moved the trial court to modify the amended judgment to read "Cross, Kieschnick & Company." The trial court did not modify the amended The Johnstons filed an Application for Order for Collection of Judgment by Court Proceedings Under Section 31.002 of the Civil Practice and Remedies Code (the turnover statute). The application was made against "Cross, Kieschnick & Company." The trial court issued a turnover order for collection of judgment against Cross, Kieschnick & Co., Inc. A supplemental order modified the turnover order so as to apply against the following: Cross, Kieschnick & Co.; Cross, Kieschnick & Co., Inc.; Lawrence E. Kieschnick; and William R. Cross. Additionally, the order imposed sanctions of $2500.00 upon these individuals and entities, and their attorneys.
judgment. The Johnstons appealed the trial court judgment to this court. We dismissed the appeal for want of jurisdiction because of a late appeal bond. 1
Cross & Company, Lawrence Kieschnick, William Cross, and their attorneys (appellants) appeal from the turnover order and the supplementing order.
Appellants attack the validity of the supplemented turnover order because: (1) the turnover statute applies only to judgment debtors; because of the uncured misnomer, appellants are non-judgment debtors who are beyond the scope of the turnover statute; and (2) collateral estoppel prevents the identity of the judgment debtor from being changed.
First, we consider appellants' fourth point of error where they contest their status as judgment debtors.
The turnover statute provides that "[a] judgment creditor is entitled to aid from a court of appropriate jurisdiction through injunction or other means in order to reach property to obtain satisfaction on the judgment if the judgment debtor owns property, including present or future rights to property...." TEX.CIV.PRAC. & REM.CODE ANN. § 31.002(a) (Vernon 1986) (emphasis added). Consistent with statutory language, Texas courts do not apply the turnover statute to non-judgment debtors. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 227 (Tex.1991).
The Johnstons argue, however, that appellants are estopped from contesting the validity of the judgment against them because they prevented the true name of the defendant from being placed on the judgment. Cross & Company specially excepted to their capacity to be sued as a corporation, and objected to the jury charge which referred to them as a corporation. Despite these warnings, the Johnstons failed to amend their petition to reflect the correct name of Cross & Company.
"In a 'misnomer' case the plaintiff misnames the person sought to be held liable, but serves the correct person, thereby advising the intended defendant of the suit." Johnson v. Coca-Cola Co., 727 S.W.2d 756, 758 (Tex.App.--Dallas 1987, writ ref'd n.r.e.). Such is the case here: The Johnstons misnamed Cross & Company as a corporation, when allegedly it was a partnership, but the intended defendant was advised of the suit. In such a case, service upon the correct defendant is proper and the defendant is under a duty to plead such misnomer and seek abatement. Matthews Trucking Co. v. Smith, 682 S.W.2d 237, 238-39 (Tex.1984).
Cross & Company met its duty. The Johnstons, however, failed to amend their petition to correctly name Cross & Company. The judgment labeling Cross & Company a corporation became final. Cross & Company neither misled the trial court nor the Johnstons: Cross & Company answered that it was not a corporation and objected to the jury charge reference to it as a corporation. Because the trial court and the Johnstons failed to recognize Cross & Company's objection, Cross & Company had every right to insist that the judgment be consistent with the pleadings and jury charge, thereby referring to Cross & Company as a corporation. Appellants are not estopped from contesting the turnover order.
The Johnstons cite estoppel cases in support of their argument. See Litton Indus. Prods., Inc. v. Gammage, 668 S.W.2d 319 (Tex.1984); D/FW Commercial Roofing Co. v. Mehra, 854 S.W.2d 182 (Tex.App.--Dallas 1993, no writ); Kelly v. Cunningham, 848 S.W.2d 370 (Tex.App.--Houston [1st Dist.] 1993, no writ). The cited authority, however, does not bolster their position. First, the cases involve issues that were raised before the judgment became final. Second, Cross & Company is not taking an inconsistent position on appeal. Cross & Company contested their status as a corporation when they answered the petition and when they objected during the charge conference. Only when the judgment was inconsistent with the pleadings and the jury charge did Cross & Company ask that the judgment reflect the error. Cross & Company did not mislead the court. Cross & Company was merely protecting its rights once its objections were denied.
To allow the Johnstons to cure the misnomer after a final judgment would not fit within the purpose of the statute:
The traditional methods of reaching property of a judgment debtor to satisfy a judgment have been found inadequate in cases where the judgment debtor has property outside the State of Texas, where the judgment debtor owns property interest in such items as contract rights receivable, accounts receivable, commissions receivable and similar acts to property or rights to receive money at a future date. Additionally, there are inadequacies in existing procedures where negotiable instruments, corporate stocks, corporate securities and the like are owned by the judgment debtor but secreted by the judgment debtor in such a fashion that they cannot be found for execution by a levying officer.
[The precursor to section 31.002] makes significant changes in the ability of the judgment creditor to enforce his judgment against his debtor. The changes which [the Act] makes are open-ended in that they allow a judgment creditor to get aid in collection from the Court in the form of an order which requires the debtor to bring to the Court all documents or property used to satisfy a judgment. The actual effect of the bill is to require the burden of production of property which is subject to execution to be placed with the debtor instead of a creditor attempting to satisfy his judgment. [The Act] will allow this to be effective against all property and future rights to property which the debtor might own.
[The Act] proposed to put a reasonable remedy in the hands of a diligent judgment creditor, subject to supervision of the Court, and establish procedures for reaching the...
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