International Paper Co. v. Garza

• Decision Date: 28 January 1994
• Docket Number: No. 13-93-633-CV,13-93-633-CV
• Parties: INTERNATIONAL PAPER COMPANY, Relator, v. The Honorable Robert GARZA, Presiding Judge of the 138th Judicial District Court of Cameron County, Texas, Respondent.
• Court: Texas Court of Appeals

Page 18

872 S.W.2d 18

INTERNATIONAL PAPER COMPANY, Relator, v. The Honorable Robert GARZA, Presiding Judge of the 138th

Judicial District Court of Cameron County, Texas,

Respondent.

No. 13-93-633-CV.

Court of Appeals of Texas,

Corpus Christi.

Jan. 28, 1994.

Roger W. Hughes, Leo C. Salzman, Adams & Graham, Harlingen, J.A. Canales, Canales & Simonson, P.C., Corpus Christi, for relator.

Gordon L. Briscoe, Harlingen, Neil E. Norquest, McAllen, Norton A. Colvin, Jr., Rodriguez, Colvin & Chaney, Brownsville, for real parties in interest.

Before SEERDEN, C.J., and FEDERICO G. HINOJOSA, Jr. and DORSEY, JJ.

OPINION

FEDERICO G. HINOJOSA, Jr., Justice.

This original mandamus proceeding involves the right of a judgment creditor, by way of a turnover proceeding, to reach personal property that is in the ostensible possession and control of a third party to which it has allegedly been fraudulently conveyed. International Paper Company (IPC), a third party joined to the turnover proceeding below and the relator here, complains that its right to possession of the property may not be litigated in a turnover proceeding ancillary to the original suit to which it was not a party. Because we hold that IPC has an adequate remedy by appeal, we deny mandamus relief.

Alexander and Karen Grassi recovered a $21,000,000.00 final judgment against Ciba-Geigy PLC for personal injuries. By their First Amended Application for Turnover Relief, the Grassis first joined IPC as a third party against which they sought to execute their judgment. The Grassis alleged that their judgment debtor had fraudulently transferred its shares of Ilford Photo Corporation stock to IPC in order to avoid having the shares taken in satisfaction of the judgment. The Grassis asked that the trial court hold the fraudulent transfer void under the provisions of the Uniform Fraudulent Transfer Act, and order IPC to turn over its shares of Ilford stock to the Cameron County Sheriff for execution and sale to the extent necessary to satisfy the judgment. IPC answered and specially excepted to the application for turnover relief on the grounds 1) that the turnover statute may not be used to adjudicate a claim of fraudulent conveyance against a third party to the original judgment, and 2) that the turnover statute is limited to property within the ownership, possession or control of the judgment debtor. The trial court heard and denied IPC's special exceptions. By the present mandamus action, IPC contends that the trial court abused its discretion by denying the special exceptions and asks this Court to order the trial court to vacate its order and to dismiss the fraudulent conveyance action brought against it.

Mandamus will issue only to correct a clear abuse of discretion or violation of a duty imposed by law when that abuse cannot be remedied by appeal. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). Generally, the courts of appeals lack jurisdiction to issue writs of mandamus to supervise or correct incidental rulings of a trial judge when there is an adequate remedy by appeal. See Bell Helicopter Textron, Inc. v. Walker, 787 S.W.2d 954 (Tex.1990); Abor v. Black, 695 S.W.2d 564, 566 (Tex.1985). Specifically, the ruling of a trial judge on special exceptions is a mere incident in the normal trial process, and if the ruling is incorrect, the aggrieved party has a remedy by appeal to correct the incidental ruling. Hill v. Lopez, 858 S.W.2d 563, 565 (Tex.App.--Amarillo 1993, orig. proceeding).

The turnover statute, TEX.CIV.PRAC. & REM.CODE ANN. § 31.002 (Vernon 1986), provides a method for the judgment...