Universe Life Ins. Co. v. Giles
| Decision Date | 15 September 1998 |
| Docket Number | No. 06-97-00112-CV,06-97-00112-CV |
| Citation | 982 S.W.2d 488 |
| Parties | The UNIVERSE LIFE INSURANCE COMPANY, AIA Services Corporation, and AIA Insurance, Inc., Appellants, v. Ida M. GILES, Appellee. |
| Court | Texas Court of Appeals |
Robert H. Renneker, Dallas, for appellants.
Jesse L. Nickerson, III, Paris, for appellee.
Before CORNELIUS, C.J., and GRANT and ROSS, JJ.
Universe Life Insurance Company, AIA Services Corporation, and AIA Insurance, Inc. (Universe), appeal from an ex parte turnover order in favor of Ida M. Giles awarding $1,500 in attorney's fees and from the court's refusal to consider Rule 13 sanctions. 1
Universe challenges the trial court's turnover order in three points of error, contending that the trial court erred in entering a turnover order because Universe had fully superseded the judgment, in conducting an ex parte hearing on the turnover order, and in refusing to consider sanctions under Rule 13.
This case arises from an earlier appeal to this court in Universe Life Ins. Co. v. Giles, 2 in which this court partially reduced the punitive damages award and the Texas Supreme Court subsequently eliminated the punitive damages award altogether. The Supreme Court left intact the judgment for actual damages. During the earlier appeal, Universe fully superseded the judgment by filing a supersedeas bond with the trial court.
Universe contends that, after the Texas Supreme Court issued its opinion, it attempted to tender the full amount of the judgment to Giles, and that such tender was refused. Universe states that it attempted to settle with Giles and tendered $131,910.26 to Giles' counsel, conditioned upon the execution of a Release of Judgment, Cost Bond, and Supersedeas Bond by Giles, as well as counsel's signature on a Joint Motion to Release Cost Bond and Supersedeas Bond, and a proposed Order Releasing Cost Bond and Supersedeas Bond. Giles disagrees with Universe's recitation of facts concerning Universe's tender of judgment and contends that a proper tender was never made. Issues of claimed tender and proper tender are not raised on appeal.
On August 1, 1997, prior to the return of the mandate to the trial court, Giles filed an Application for Turnover Order requesting that Universe turn over the full amount of the judgment. A hearing was held on August 2, 1997, and on August 4, 1997, the trial court signed an ex parte turnover order directing Universe to pay $132,136.35 into the court registry on or before 2:00 p.m. local time on August 6, 1997. The order provides:
After considering the pleadings and other papers on file with this Court, the evidence presented, and the argument of counsel, the Court finds and concludes that plaintiff is entitled to an order for the delivery of the following property for the reason that said property is not exempt from attachment, execution, or any other type of seizure for the satisfaction of liabilities, and cannot be readily attached or levied on by ordinary legal process....
The turnover order further orders Universe to pay the additional sum of $1,500 for attorney's fees.
Upon receipt of the turnover order, Universe deposited $132,281.27 into the court registry. Universe also filed a Motion to Set Aside Turnover Order and for Sanctions, asking the court to set aside the order, to determine the amount of the judgment, and to impose Rule 13 sanctions on Giles' counsel. A hearing on the motion was held August 12, 1997, after which the district court refused to set aside its turnover order, refused to vacate the award of attorney's fees, and refused to consider the motion for sanctions. The court also determined the exact amount due under the judgment.
The standard of review of a turnover order is whether the trial court abused its discretion. 3 The test for determining whether the trial court abused its discretion is whether it acted without reference to any guiding rules or principles, or in other words, whether the court's actions were arbitrary and unreasonable. 4
All three points of error attacking the turnover order proceeding are based upon recovery under the supersedeas bond.
In their first point of error, Universe argues that the trial court abused its discretion in entering a turnover order because Universe had fully superseded the judgment. Universe contends that, under Rule 47 of the Rules of Appellate Procedure, 5 once a supersedeas bond has been filed, a district court's power to enforce the judgment is limited to determining the amount of the bond. Rule 47 provides, in part
(j) Effect of Security. Upon the filing and approval of a proper supersedeas bond, deposit, or the provision of such alternate security as ordered by the trial court in compliance with these rules, execution of the judgment or so much thereof as has been superseded, shall be suspended, and if execution has been issued, the clerk shall forthwith issue a writ of supersedeas.
(k) Continuing Trial Court Jurisdiction. The trial court shall have continuing jurisdiction during the pendency of an appeal from a judgment, even after the expiration of its plenary power, to order the amount and the type of security and the sufficiency of sureties and, upon any changed circumstances, to modify the amount or the type of security required to continue the suspension of the execution of the judgment....
Enforcement of the judgment is suspended, according to Universe, upon the filing and approval of the supersedeas bond. Rule 47(j) states that where a supersedeas bond has been filed and approved, execution of the judgment "shall be suspended."
Universe contends that this position is supported by the Dallas court's holding in Anderson v. Lykes. 6 There, the court held that the pendency of an appeal does not suspend the right of a judgment creditor to seek aid in the trial court to enforce a judgment under the provisions of Section 31.002 of the Texas Civil Practice and Remedies Code, the turnover statute, unless that judgment is superseded. 7 The court also stated that, under Rule 627 of the Rules of Civil Procedure, "[a] judgment creditor has a statutory right to have execution issue to enforce a judgment pending appeal where no supersedeas bond has been filed or approved." 8 However, the case's applicability here is limited, as the court did not address the issue of whether or when a supersedeas bond becomes inoperative after the appeal, which is at the heart of this case.
Giles argues that the supersedeas bond suspends judgment only during the pendency of the appeal 9 and that once the appeal is final, judgment is no longer suspended. Universe argues that, even if a supersedeas bond becomes inoperative when the appeal becomes final, it remains fully effective until the mandate is returned to the district clerk. They contend that the Supreme Court's judgment was not final until the return of the mandate, and, therefore, the trial court's action entering the order was premature.
Mandate had not yet issued when Giles filed her Application for Turnover Order. The turnover order was signed on August 4, 1997, and the mandate was not returned to the trial court until two weeks later, on August 18, 1997.
A mandate is the official notice of the action of the appellate court, directed to the court below, advising it of the action of the appellate court and directing it to have the appellate court's judgment duly recognized, obeyed, and executed. 10 However, issuance of a mandate by an appellate court is not necessary to render a judgment final. 11 The civil procedure rules dealing with the issuance and return of the mandate subsequent to an appellate court's remand are procedural and not necessary to the jurisdiction of the trial court. 12
We recognize that this court has held a judgment void when no mandate had been issued prior to a trial on remand from the appellate court. 13 We decline to follow that precedent because such holding was questioned by the Supreme Court in Continental Casualty Co. v. Street 14 and in light of the decisions cited above.
In Continental, the case had been retried and judgment entered before the mandate of the court of appeals had been issued granting a new trial. 15 The Supreme Court said in holding that the second judgment of the trial court upon remand was not a void judgment:
In order to properly preserve the complaint of procedural irregularity in proceeding to trial before the return of the mandate, it is necessary that proper objection be made in the trial court, or that application for prohibition be made to the Court of Civil Appeals. It is only when there is an actual interference with the appellate court's active power and authority over the case by a trial court order that the same can be considered void so as to constitute a fundamental error. 16
Nothing in the record indicates that Universe objected in the trial court to entry of the Turnover Order because the Supreme Court's mandate had not yet been received. Further, there was no interference with the Supreme Court's active power and authority because the Supreme Court's judgment became final when Universe did not file a motion for rehearing on or before July 24, 1997, a period of fifteen days after rendition and entry of the judgment on July 9, 1997. 17 Therefore, the trial court's entry of turnover order was not premature.
The specific language applying to the issue raised in this case is contained in Rule 51.1: "When trial court clerk receives a mandate, the appellate court's judgment must be enforced," and in Rule 65.2: "Upon receiving the Supreme Court's mandate, the trial court clerk must proceed to enforce the judgment of the Supreme Court's as in any other case."
Both of these provisions contain mandatory language for the trial court clerk to enforce the judgment upon receipt of the mandate. Nothing in the rules prohibits the trial court from enforcing the...
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