Union Square Federal Credit Union v. Clay, No. 2-07-167-CV (Tex. App. 4/23/2009)
| Decision Date | 23 April 2009 |
| Docket Number | No. 2-07-167-CV.,No. 2-07-168-CV.,2-07-167-CV.,2-07-168-CV. |
| Parties | UNION SQUARE FEDERAL CREDIT UNION AND DAVID NORRIS, Appellants, v. RICHARD R. CLAY, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the 89th District Court of Wichita County.
Panel: CAYCE, C.J.; DAUPHINOT and McCOY, JJ.
Union Square Federal Credit Union ("Union Square") and David Norris (collectively "Appellants") appeal from two judgments in favor of Appellee Richard R. Clay. In five issues, they argue that the trial court erred by (1) enjoining the enforcement of the underlying money judgments rendered in their favor, (2) finding that the money judgments were dormant and unrevivable, (3) finding that the abstracts of judgment obtained and the writs of execution issued on the judgments were null and void, (4) finding that Richard never abandoned his homestead claim to his residence at 4600 Trailwood, Wichita Falls, Texas ("Trailwood"), and (5) finding that property at 4409 Tobago Lane, Wichita Falls, Texas ("Tobago") was the separate property or, alternatively, the sole management community property of Richard's wife Diane. We affirm in part and reverse in part. We affirm those portions of the trial court's judgments declaring that Trailwood is Richard's homestead, but we also reverse the remaining portions of the trial court's judgments, vacate those portions of the trial court's judgments permanently enjoining the enforcement of the underlying money judgments, and render take-nothing judgments against Richard on all of his claims for declaratory relief except his claim that Trailwood is his homestead.
On July 13, 1989, Union Square filed a lawsuit against Richard, alleging that he had defaulted on a credit agreement. On March 13, 1990, it filed an amended pleading that incorrectly listed Richard's name as "Richard E. Clay" instead of "Richard R. Clay." Richard filed an answer and did not object to the change in the pleadings showing his name as "Richard E. Clay." On July 2, 1990, the trial court rendered judgment for Union Square, awarding damages of $24,533.86 plus interest, costs, and attorney's fees.
On August 14, 1990, Union Square asked the clerk to issue a writ of execution on the judgment. The writ identified the judgment debtor as "Richard E. Clay." On November 15, 1990, the sheriff returned the writ nulla bona, that is, the sheriff found no seizable property belonging to Richard E. Clay within the jurisdiction.2
On April 4, 2000, a few months short of ten years after the judgment had been rendered, Union Square requested the clerk to issue a second writ of execution. The clerk issued the writ on April 19, 2000, again identifying the judgment debtor as "Richard E. Clay." The writ was received by the Wichita County Sheriff's office on May 2, 2000, and returned nulla bona on May 19, 2000.
On February 16, 2001, Union Square sought a judgment nunc pro tunc to correct the 1990 judgment to identify the judgment debtor as "Richard R. Clay." The trial court rendered the judgment nunc pro tunc on March 5, 2001. The clerk issued a writ of execution on the judgment nunc pro tunc and delivered it to the sheriff's office on April 9, 2001.
In an unrelated action, Norris filed suit against Richard on December 22, 1989, alleging that Richard had defaulted on a note of which Norris was the holder. The petition identified the defendant as "Rick Clay." Richard filed an answer but did not appear at trial. Norris obtained a default judgment against Richard on April 3, 1990, with an award of damages of $3,750 plus interest, costs, and attorney's fees. A writ of execution was prepared by the clerk on March 31, 2000, and delivered to the sheriff's office on April 14, 2000, which returned it nulla bona on July 3, 2000. On February 16, 2001, Norris sought a judgment nunc pro tunc to correct the 1990 judgment to identify the judgment debtor as "Richard R. Clay." The trial court rendered the judgment nunc pro tunc. The clerk issued a writ of execution on the judgment nunc pro tunc on April 5, 2001 and delivered it to the sheriff's office on April 9, 2001.
After the writs on the two judgments nunc pro tunc were delivered to the sheriff's office, the sheriff attempted to execute against Trailwood. On June 1, 2001, Richard filed lawsuits against Union Square and Norris seeking declaratory and injunctive relief from the writs of execution on the 1990 money judgments held by them. The trial court heard the cases together. Richard testified that his name was Richard R. Clay but that he also went by "Rick." He further testified that Trailwood was his separate property and homestead, that he kept no bank accounts and paid all his bills with cash, that Tobago was his wife's separate property, and that he would not have been able to finance its purchase himself. He also testified that he had no ownership interest in five other properties held in his wife's name.
On April 18, 2007, the trial court rendered judgment granting the relief sought by Richard, finding that Richard never abandoned his homestead claim to Trailwood and declaring that Trailwood is Richard's homestead, that Tobago is the separate property or, alternatively, the sole management community property of Richard's wife Diane, and that the 1990 money judgments obtained by Appellants are dormant and cannot be revived. The trial court further ordered that Appellants "may not take any action in the future to attempt to collect or revive" the money judgments. Appellants appealed.
In Appellants' second issue, they argue that the trial court erred by finding that the money judgments rendered in their favor were dormant and unrevivable. In Appellants' third issue, they argue that the trial court erred by finding that the abstracts of judgment obtained and the writs of execution issued by Appellants on the money judgments were null and void. In their first issue, Appellants contend that the trial court erred by enjoining the enforcement of the money judgments. Appellants combine their arguments on these issues, and we will address them together.
A judgment becomes dormant if no writ of execution is issued within ten years after its rendition.3 If a writ is timely issued, another writ of execution must be issued at some time within ten years after the prior writ or the judgment will become dormant.4 If the judgment becomes dormant, no writ of execution may be issued until the judgment has been revived by scire facias or by an action of debt.5 An action to revive a dormant judgment may not be brought after the second anniversary of the date that the judgment became dormant.6
In the trial court, Richard contended that the writs on the 1990 Union Square judgment were not properly issued because the 1990 writ of execution was defective in that his middle initial was not properly placed in the execution and that no execution issued in 2000 because Union Square instructed the sheriff to return the writ nulla bona. He argued that no writ of execution issued on the 1990 Norris judgment because the original writ that was issued stated the name of the judgment debtor as "Rick Clay" and because it was not timely delivered to the sheriff.
If the writs of execution issued by Appellants were null and void as alleged by Richard, then no writs were issued within ten years of rendition of the money judgments, the judgments became dormant and unrevivable, and the trial court did not err by enjoining their enforcement.7 Appellants had the burden at trial to prove issuance of a valid writ within the statutory period.8
We first address the writs of execution originally issued on the underlying money judgments and whether they were fatally defective. Appellants argue that the minor irregularities in the form of the writs were immaterial. We agree.
Rule 629 of the rules of civil procedure provides that a writ of execution must contain the name of the party against whom judgment was rendered.9 Not every element set out in rule 629 is vital for the creation of a valid writ.10 But a writ is of no effect if it completely omits the name of the judgment debtor or misidentifies the party against whom judgment was rendered.11 Richard argued that under this requirement, a writ of execution identifying him as "Richard E. Clay" or "Rick Clay" is void. Although we have found cases holding that a writ was void for failing to reflect the name of the debtor as it appeared in the judgment, we have found no case voiding a writ of execution on the ground that, although it reflected the name of the defendant as it appeared in the judgment, it failed to state correctly the defendant's legal name. Furthermore, courts have allowed some deviation from the requirements for writs.12
We believe that the doctrine of misnomer applies to this case. Misnomer is when the plaintiff sues but misnames the correct defendant.13 Under Texas law, a judgment is not rendered void by the misnaming of a defendant, "provided the intention to sue the correct defendant is evident from the pleadings and process, such that the defendant could not have been misled."14 If the defendant appears and does not object to the misnomer, the judgment is binding on him as though he had been properly named.15
In this case, Richard acknowledged that he filed an answer in Union Square's suit. And although he signed his pleadings with his correct initial and stated in interrogatories that his legal name was Richard Robert Clay, he did not object that he had been misnamed. The suit in that case was on a promissory note that Richard admitted he had executed. Union Square's intention to sue Richard was obvious from the pleadings and process, and Richard was clearly not misled by the misnomer.16 We also note that he did not file a plea in abatement to correct the mistake or attack the money judgment on appeal.17
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