*1 negligence proximate and cause and lish Hodgens, Roy testified for the who
Barners, an competent testify was as point in a Carpenter preserved this
expert. Hodgens, twenty- a
motion for a new trial. De-
one-year veteran of the Dallas Police testify as an
partment, competent was discussing the evidence
expert. Without
detail, factually suffi- testimony his support negligence proxi-
cient finding. Carpenter’s fourth
mate-cause remaining points
point is overruled. judgment against not reached. The
are reversed,
Carpenter County Johnson rendered that Barners 81(c). nothing.
take TEX.R.APP.P. See County
Nueces James T. Sheriff
HICKEY, Appellant, COUCHMAN,
Carolyn Appellee. Jane
No. 13-89-437-CV. Texas, Appeals
Court of
Corpus Christi.
June 1990.
Rehearing Aug. Overruled 1990. Rehearing
Second Motion for Sept.
Overruled
ment. After a bench trial the court ren- judgment appellee. By dered in favor points error appellant four contends that by failing properly the trial erred law, finding find in facts and conclusions 34.065, a willful in find- violation ing a lack of due He diligence. also chal- lenges legal sufficiency factual judgment. part, We affirm reverse part appellee. and render *4 Appellee After and the debtor in execu- tion, (debtor) Steve divorc- Couchman litigation ed parties further between the result, April ensued. As a on against judgment recovered a $2,000.00in damages, debtor in the sum of fees, attorney’s for and $164.00 for costs. appeal.
The The trial debtor did not July a writ of execution on issued July 1988. on Appellant received the writ VandenBout, day a 1988. That Ed working repre- paralegal for the law firm senting appellee, Deputy Sheriff Wil- Thompson, went liam to a condominium The was debtor owned execute. debtor there, deputy not and VandenBout and the any property. did not execute on While condominium, they were at the debtor’s they motorcycles, two a beach observed dish, buggy, a a Zodiac inflata- satellite property ble boat. This was awarded in him the divorce decree.
They July Friday, on returned and encountered the debtor. Most property they had was earlier observed Christi, Condit, Corpus for Bradford M. deputy plate present. The noted license appellant. requesting After numbers on the vehicles. Barrow, Morris, Nicolas, <& Pat Morris designate subject to property the debtor to Christi, Corpus appellee. for execution, he had filed a the debtor stated bankruptcy. personal VandenBout and KEYS, SEERDEN, Before agreeing that deputy premises in left BENAVIDES, JJ. could no execution lie. the records of VandenBout checked OPINION and determined that bankruptcy court KEYS, Justice. bankrupt- petition filed debtor had not a Friday he execution, cy. p.m. on called Carolyn Jane After 5:00 The During Couchman, this. (appellee) deputy for and advised him of filed motion conversation, deputy informed Van- against T. Hick- damages appellant, James to the vehicles at ey, denBout that the titles County of Nueces under Tex. Sheriff registered in (Ver- the debtor’s house were not Ann. Civ.Prac. & Rem.Code After con- 1989) judg- Steve Couchman’s name. non for failure to execute her which was portion of her that deputy called the debtor’s versation attorney’s fees. Barber, his of- attorney, Dan Barber. or fice, deputy that the debtor informed the stat- governed by rule and Execution following bankruptcy Mon- file would duty imposes a on ute2. Rule day, July 1988. levy delay to “proceed without sheriff to the defendant upon property of ... 15, 1988, July p.m. Friday, on After 5:00 county exempt from his found within execution, left a plaintiff in appellee, the If the sher- execution.” Tex.R.Civ.P. Saturday deputy’s office. message at the upon the execute iff fails or refuses to appellee and called the morning deputy the Civil non-exempt property debtor’s had not bankruptcy again notified that was provides sanc- and Remedies Code Practice at that told him that filed. She also been tions: personal the debtor’s a sale of moment levy on fails or refuses to If an officer A W stor- taking place at & property was subject to execution and property or sell also in- deputy age, unit 99. place, have taken levy or sale could attempted execution after the formed that and his sureties are liable the officer property Friday, many personal items of *5 money party entitled to receive the Dep- truck. loaded into a U-Haul had been execution for the full collected on Carolyn nothing that uty Thompson told debt, plus interest and amount of the go- could done because the debtor be amount is recoverable costs. The total dep- ing bankruptcy. to file Thereafter party filed with the on motion of the property uty did not execute on the or take writ, following five that issued the any other action. and his sure- days’ notice to the officer 20, July appellee 1988 filed a On ties. damages against appellant, seeking notice Ann. 34.065 & Rem.Code Tex.Civ.Prac. § Ann. under Tex.Civ.Prac. & Rem.Code 1990). (Vernon (Vernon 1986), alleging that the § Republic to founding of the From the exe deputy sheriff’s failed and refused to of Texas has day Supreme Court non-exempt property. cute on the debtor’s literally; rath- this statute interpreted
Appellant responded general denial. with a er, assumptions that consistent with the 29, 1988, Thereafter, filed July appellee in plaintiff the debtor is solvent and damages. Appel motion1 for the instant injury due to the has suffered an execution pleadings his lant amended to show Perry, duty, Smith v. sheriff’s breach diligence. defense of due (1857), 510, read 515 it has several 18 Tex. 1, in avoidance into ninety days and matters November over defenses On Coleman, 14 e.g. v. attempted date execution 34.065. See Cobbs from the of the § (sheriff by (1855) may defend assets, filed and the sale of his he Tex. 594 debtor’s exempt); assets are proving It was the debtor’s Chapter petition bankruptcy. a 7 in Russell, (1849) 4 175 v. Tex. All a no asset case. of debtor’s debts Underwood (sheriff by proving he exer- may defend discharged appellee no distri- received diligence). cised due proceedings. from the bution plaintiff in execution must is- hearing, all After a the court found following in the plead prima his facie case judg- sues in favor of and entered on a valid The execution based awarding denying manner. ment her but Thallman, S.W. Bank v. 196 Filing proper way Buckholts State a motion is the to raise 1917, writ). (Tex.Civ.App. is no claim under 34.065. The writ of execution § 690 — Austin any process, and not an Hence issues a concerning action. propriety actions of the sheriffs govern Tex.R. execution are 2. The rules that by executing properly raised the writ are (Vernon 1987). The statutes con- Civ.P. 621-656 (total issuing court. See 34.065 motion in cerning of the execu- the duties and liabilities ...). on motion amount of debt is recoverable ting & Rem. are found at Tex.Civ.Prac. officer However, does not it is not fatal if the movant 1990). (Vernon §§ Code 34.061-34.067 damages designate such. See his motion for as 108 by proof that market value
judgment was
and delivered to the
established
issued
sheriff,
non-exempt
is less
property
property
the debtor had some
“sub-
of the debtor’s
(i.e., ownership
ject
underlying judg
to execution”
of non-ex-
than
of the
the amount
assets)
empt
county
plaintiff
in the
when the sheriff
by
ment held
execution.
writ,
had the
the sheriff failed
seize the
plaintiff
such a
in execution
case
non-exempt property,
judgment
and the
re-
only
recover
he
entitled to
the amount
unpaid. Henry
Miller
Ev-
S.
Co. v.
mains
if
had
recovered
the sheriff
would have
ans,
(Tex.1970).
109 as- of the debtor’s probable that the value necessary for the trial court It was not value, on the ownership, exempt greater sta than find and sets was could have occurred. of each asset because the ultimate date execution tus aggregate controlling is whether the issue or “insuffi A “no evidence” by non-exempt value of assets owned point appropriate is if the cient evidence” $3,164.00. hold greater is than We debtor proof chal party without the burden findings properly prepared trial court v. lenges finding of fact. Croucher We over of fact and conclusions of law. (Tex.1983). Croucher, 58 660 S.W.2d point. appellant’s rule first point, evidence” we determining a “no error, appel By point his second and inferences only consider the evidence erred complains lant that the trial court finding of fact support tend to which willfully and refused finding that he failed disregard all evidence and inferences non-exempt property. Ap to execute on contrary. Arma to the See International parently appellant attempting to raise 595, 597 Corp. King, ment v. 686 S.W.2d requires the issue whether Consultants, (Tex.1985); v. Larson Cook state, imposes or if it strict some mental (Tex.1985); Inc. 690 S.W.2d 568 In re execute. liability on the sheriff who fails to Estate, 662, 244 King’s 150 Tex. S.W.2d question do not reach this because We (1951). pro any 661-62 If evidence of supporting there is sufficient evidence supports finding, we must bative force finding deputy trial court’s that the willful uphold finding. overrule the ly failed to execute. Estate, 244 at 661-62. King’s In re S.W.2d that at The statement of facts indicates hand, an “insufficient evi On the other attempt levy by deputy and the first point requires us to examine all dence” present, the debtor was not VandenBout supports evidence which and contradicts although were. At the second his assets Plas-Tex, finding, Inc. U.S. Steel execute, attempt present, the debtor was (Tex.1989). Corp., 772 S.W.2d See bankruptcy. stated that he had filed but Hall, Appellate also Review Standards of deputy agreed exe- VandenBout and the no Mary’s Appeals, St. L.J. Civil proper if the filed cution was debtor had *7 (1990). the The test is whether 908-09 However, bankruptcy. and VandenBout slight, supporting finding the is so evidence the deputy day the learned that same that against strong, the evidence it so that or bankruptcy. dep- debtor had not filed The manifestly quite and finding unjust the is uty appellee day also learned the next from Alviar, 395 clearly wrong. See Garza v. selling moving that the debtor was and the Hall, 821, (Tex.1965); at 909. S.W.2d 823 very required assets he was to execute on. bankrupt- deputy When the learned that finding was estab Whether cy had not been filed and the debtor was law”, “matter of or was lished as a assets, duty hiding selling and his he had a “against great weight preponder and the 637 immediately. to execute Tex.R.Civ.P. the evidence” are the correct chal ance of (Vernon 1989). sher- We hold that where a lenges legal sufficiency to the and factual non-exempt iff is aware of the debtor’s finding by party the with the of an adverse does assets and to seize them but is able Croucher, proof. 660 at burden of S.W.2d not, willfully intentionally he and violates Orellana, 58; 661 v. see also Conrad appellant’s 34.065. We second overrule § (Tex.App. Corpus 309 Christi S.W.2d — point of error. writ). two-pronged inquiry A is no point. “matter of law” required for a error, appel By his third of First, the appellate court must examine the challenges legal factual suffi lant the and finding supporting the record for evidence findings. Specifi ciency of the trial court’s Second, supports if no evidence of fact. cally, he contends that there is no evidence from finding, the court must determine ownership and or insufficient evidence of proposi contrary the record whether of debtor’s assets. fair market value as a matter of law. finding tion is established disputes trial court’s He also 110 Co., supporting 767 Marathon S.W.2d From review of evidence
Sterner v. Oil (Tex.1989). finding finding is that debtor non-ex- 690 If a owned greater “against great weight preponder empt and assets of a value than the inquiry appellee’s judgment of ance of the evidence” the wheth amount we find contrary finding finding supports er the is so to the over some evidence this and whelming weight contrary proposition of all relevant evidence is not established. wrong unjust. challenge clearly as to be and v. The “matter of law” has no mer- Cain Bain, (Tex.1986). 709 it. S.W.2d 176 See Appellate Re
generally, Standards of Upon of all review of the evidence view, Mary’s 21 St. L.J. at 906-923. finding we conclude that the court’s is not unjust clearly wrong. particular, or case, appellant In the instant did shows a dune a Zodi buggy, evidence that have of issue proof not the burden boat, systems, ac‘inflatable two satellite subject whether there some assets motorcycles, many three and other assets execution, Co., Henry 452 S. Miller S.W.2d possession were in the of the Pos debtor. against at 430. The trial court found personal pre property of raises a session challenges legal He him. the factual and Implement sumption ownership. of Deal finding by a evi sufficiency of this “no Castleberry, ers Mutual Ins. Co. an evidence” dence” and “insufficient (Tex.Civ.App. S.W.2d — Beaumont point. sup a review evidence From (“Possession n.r.e.) ref’d writ alone finding we some porting the find evidence presumption ownership to raises a of real fact, and after a review of all of the personal property”). See also Worth finding is evidence think this not mani we Die Tool & Co. v. Atlantis Electronics unjust. festly example, For stated (Tex.Civ. Corp., 398 S.W.2d 657-58 had he in the debtor assets owned by agr.) App. writ dism’d — Dallas appellant at county the time had writ personal pre (possession property raises Moreover, deputy actually execution. ownership). sumption of We also note that that the saw assets verified debtor appellee testified that debtor owned owned some interest in them. Mr. Van- assets, and the divorce decree award these denBout testified that the debtor also him. ed these assets to possession could have assets which upon. executed These “no evidence” been systems The are clear satellite and “insufficient evidence” issues have no Tex.Prop. ly subject exemption. See merit. (Vernon 1989). Ann. Code boat, buggy, motorcycles conceiv dune Appellant had the burden exemptions, see ably subject could be id. *8 proof to the value the establish that of however, 42.002(3)(E) (4)(B); when at § subject assets to execution was less than designate did requested, the debtor appellee’s judgment. of the amount Fant exempt. exempt the them as In order be 445, Milling May, 449 Co. v. 240 S.W.2d buggy and had to reason dune the boat be 1951, n.r. (Tex.Civ.App. writ ref’d — Dallas necessary the Id. ably for debtor. at e.). The the trial court found that debtor 42.002(3)(E). court, by finding The trial § $5,000.00 subject more had than of assets non-exempt, implicitly assets held these Although appellant chal to execution. reasonably necessary for the they were not by lenges finding “no evidence” or this Testimony indicated that the debt- debtor. point, “insufficient evidence” we review or owned other vehicles besides the also challenged if properly this as he had this Thus, applied motorcycles. the trial court finding by “against a “matter of law” and ve exemptions to these other the vehicle great weight preponderance of the hicles, motorcycle be and allowed one Croucher, objection. evidence” 660 S.W.2d exempt. Unik, 58; Mfg., see Inc. v. at also Creative by Appellee also established
Inc., (Tex.App. 726 210 S.W.2d — Fort of n.r.e.). that the value competent evidence Worth writ ref’d m $5,000.00. assets was over Appellee motion, testi- should be awarded in a § fied that the value of the debtor’s assets thus we must construe 34.065 to achieve § $10,000.00 was over at the time of their legislative purpose. Although divorce. a couch and other The statutory interpreta- cardinal rule in furnishings household exempt, see tion and construction is to seek out the 42.002(1), there was sufficient evidence legislative general intent from a view of presented to the court to find that whole, and, the enactment as a once the attempted value at the time of the execu- ascertained, intent has been to construe $5,000.00. Appellant tion was over did not give the statute so as to effect to the put any on evidence value of these purpose Legislature_ of the stat- [A] assets. proof He had the burden of ute is to be construed with reference to prove $3,164.00. their value was less than object, its language manifest and if the carry He failed to his burden here. Wheth- constructions, susceptible of two one of er the trial court had sufficient evidence carry which will out and the other defeat indicating $20,- that the debtor had over such object, manifest it should receive 000.00 of assets at the time of non-execu- the former construction. appeal. tion is not material to this issue is whether Bryan debtor had over Citizens Bank v. First State Thus, Bank, (Tex.1979); worth of assets. this find- 580 S.W.2d 348 see erroneous, ing, if is harmless City error. Tex.R. also Collins v. Campo, El 684 81(b)(1)(Vernon App.P. 1989). Appellant’s S.W.2d (Tex.App. Corpus 759 Christi — point third n.r.e.); of error is overruled. writ ref’d Gonzalez v. Gonza lez, 672 S.W.2d (Tex.App. Corpus — Appellant’s point fourth and final 1984, writ). Christi no of error is whether the sheriff exercised purpose The manifest of the stat diligence. question fact, due This is a provide ute is clear: to creditors with full and the against fact was found appellant. compensation if the sheriff fails to execute. Appellant had the proof burden of on this In Perry, Supreme Smith v. Court of Although issue. properly is not Texas primary object stated: of the “[t]he phrased as a “against “matter of law” or statute must have been to afford a redress great weight preponderance of the injuries”. at Similarly, Id. point, evidence” we address this issue for Ellis, object the court stated: is to “[i]ts thoroughness. sake of compel promptly perform sheriffs to duty The evidence supporting finding law, enjoined upon by them and to afford deputy willfully failed to execute any injuries resulting swift redress for debtor’s supports finding assets nonperformance from a duty”. Id. appellant diligence. failed to exercise due Hackler, at 310. 227 S.W.2d We therefore overrule his fourth and final writ) (Tex.Civ.App. 1950, no — Dallas point of error. appeals Dallas stated that “the primary object give of the statute is to Appellee’s point presents cross compensation to the in execution issue whether the trial court should have *9 any injury by for suffered him on account judgment against appellent rendered for of the default of the officer.” appellee’s judgment against amount of including the debtor attorney’s fees. At We are that aware this statute is $2,000.00 judge trial the in dam awarded penal in strictly nature and must be con ages against appellee. judge The did not strued in favor of the If sheriff. Id. we portion appellee’s judgment award that provide fail to in execution against represented the debtor attor which damages, with the full measure of her we ney’s fees. purposes would defeat the twin of the stat compel The statute is not clear whether that ute: the sheriff to execute portion judgment attorney’s promptly, provide compensation for fees and to full arguing points of error that Only by imposing Appellant’s he a full
if does not. granting attorneys’ fees in this court erred damages prompt will execution measure faulty on the in the instant case based in be all compensation or full assured premise granted from the fees cases. case, underlying not the the instant and points of appellant’s All of error are judgment. Appellants motion for rehear- point is Appellee’s sus- overruled. cross ing is overruled. part, in re- We therefore affirm tained. in render part, the trial court verse attorney’s appellee’s fees and
judgment for recovery the court
costs in addition
below awarded. KEYS,
Before SEERDEN
BENAVIDES, JJ. Thornton, RUSSELL, Michele William S. Lawrence, Billy Payne, M. John Webb ON FOR OPINION MOTION Dorman, T. Ann Lawrence and William REHEARING Appellants,
KEYS, Justice. complains in his motion for Appellant BRYAN and North Central CITY OF rehearing awarding in that this court erred Appellees. Corporation, Oil attorneys’ appellee. fees to There were No. C14-89-01071-CV. attorneys’ fees before the two for claims Texas, Appeals court, brought Court by for each suit trial one (14th Dist.). Houston appellee. July 1990. attorneys’ first for fees claim appellee judgment by in suit part of the Rehearing Denied Oct. Couchman, judgment against Steve judgment, the trial part As debtor. fees, attorneys’
court awarded $2,000.00 damages. It was
in addition to failed to exe- judgment appellant
cute, appellee. thereby became liable to did not trial court the instant case the por- for that judgment
render for provided which prior
tion of case, holding attorneys’ fees in the first Ann. Rem.Code
that Tex.Civ.Prae. & encompass (Vernon 1988) did Appellee raised
recovery for fees. such and this court by
that error cross ruling.
reversed that appellee’s claim is based
The second against suit
attorneys’ fees for the instant
appellant, alleged to be over which were
$2,000.00. admit did not The trial court fees
evidence of such because as witness. attorney
failed to disclose her has not raised. appeal claim been
On