Opinion
No. 05-09-00703-CV
Opinion Filed April 29, 2010.
On Appeal from the 162nd Judicial District Court Dallas County, Texas, Trial Court Cause No. 08-14740-I.
Before Justices O'NEILL, FRANCIS, and MURPHY.
Memorandum Opinion
Marc A. Wilson appeals HPSC, Inc.'s post-judgment garnishment of his bank account at Bank of America, N.A. In two issues, Wilson complains the trial court erred in (1) denying his motion to dissolve the writ of garnishment because HPSC's garnishment application and supporting affidavit were defective; and (2) entering judgment in the garnishment proceeding when the underlying judgment is pending on appeal. Because we conclude the application for writ of garnishment and supporting affidavit were deficient, we reverse the trial court's judgment and remand this case for further proceedings consistent with this opinion.
Garnishment is a statutory proceeding by a judgment creditor, in which property, money, or credits of a judgment debtor in the possession of another are applied to pay the debt. Bank One, Tex., N.A. v. Sunbelt Sav., F.S.B., 824 S.W.2d 557, 558 (Tex. 1992) (per curiam); Ramsey v. Davis, 261 S.W.3d 811, 816 (Tex. App.-Dallas 2008, pet. denied). Because the remedy of garnishment is purely statutory, garnishment proceedings cannot be sustained unless they strictly conform to statutory requirements and related rules. Beggs v. Fite, 130 Tex. 46, 106 S.W.2d 1039, 1042 (1937); In re Tex. Am. Express, Inc., 190 S.W.3d 720, 725 (Tex. App.-Dallas 2005, orig. proceeding). If any of the statutory requirements are not met, the judgment creditor's right to have a writ of garnishment entered against the property of the debtor fails. St. Louis, B. M. Ry. Co. of Tex. v. Dallas Cooperage Woodenware Co., 268 S.W. 769, 771 (Tex. Civ. App.-Dallas 1925, no writ).
Garnishment proceedings are governed by chapter 63 of the Texas Civil Practice and Remedies Code and rules 657 through 679 of the Texas Rules of Civil Procedure. See Tex. Civ. Prac. Rem. Code Ann. §§ 63.001-.008 (Vernon 2008); Tex. R. Civ. P. 657-79; see also Ramsey, 261 S.W.3d at 816. Under section 63.001(3), a post-judgment writ of garnishment is available if "a plaintiff has a valid, subsisting judgment and makes an affidavit stating that, within the plaintiff's knowledge, the defendant does not possess property in Texas subject to execution sufficient to satisfy the judgment." Tex. Civ. Prac. Rem. Code Ann. § 63.001(3). Texas Rule of Civil Procedure 658 requires the applicant to comply with all statutory requirements, which include the statement of "specific facts" relied upon to warrant the required findings by the court. Tex. R. Civ. P. 658. Additionally, the "application and any affidavits shall be made on personal knowledge and shall set forth such facts as would be admissible in evidence." Id. The facts may be based on "information and belief" if the grounds for such belief are also specifically stated. Id.; see also Metroplex Factors, Inc. v. First Nat'l Bank, Bridgeport, Tex., 610 S.W.2d 862, 865 (Tex. App.-Fort Worth 1980, writ ref'd n.r.e.).
In his first issue, Wilson complains HPSC's garnishment application and supporting affidavit do not strictly comply with the rules governing garnishment proceedings. We agree. HPSC's application stated "[w]ithin the knowledge of Plaintiff/Judgment Creditor HPSC, [Wilson] does not possess property in the state of Texas subject to execution that is sufficient to satisfy the . . . judgment." The application was supported by the affidavit of HPSC's attorney of record. Although the attorney recited the affidavit was based on his "personal knowledge," he failed to set forth any facts that would be admissible in evidence as required by rule 658. Tex. R. Civ. P. 658. The affidavit also fails under rule 658 as an affidavit based upon "information and belief" because affiant did not specifically state the grounds for such belief. Tex. R. Civ. P. 658; Metroplex Factors, 610 S.W.2d at 865.
We conclude HPSC's garnishment application and supporting affidavit are defective and cannot sustain issuance of a writ of garnishment. Accordingly, the trial court erred in denying Wilson's motion to dissolve HPSC's writ of garnishment and entering judgment in the proceeding. We sustain Wilson's first issue. Given our disposition of this issue, we do not reach Wilson's remaining issue.
We reverse the trial court's judgment and remand this case for further proceedings consistent with this opinion.