Schaefer v. Bellfort Chateau Ltd. P'ship

MICHAEL SCHAEFER, TRUSTEE, Appellant/Cross-Appellee v. BELLFORT CHATEAU LIMITED PARTNERSHIP, Appellee/Cross-Appellant

No. 01-19-00913-CV

Court of Appeals of Texas, First District

August 3, 2021

On Appeal from the 281st District Court Harris County, Texas Trial Court Case No. 2018-15069

Panel consists of Justices Countiss, Rivas-Molloy, and Guerra.

MEMORANDUM OPINION

Julie Countiss Justice

Appellant/cross-appellee Michael Schaefer, Trustee, challenges the trial court's judgment entered, after a bench trial, in favor of appellee/cross-appellant, Bellfort Chateau Limited Partnership ("Bellfort"), in their suit against each other for declaratory judgments. In four issues Schaefer contends that the evidence is legally insufficient to support the trial court's findings of fact and the trial court erred in awarding Bellfort attorney's fees.

In its sole issue on cross-appeal, Bellfort contends that the trial court erred in denying its request for contingent appellate attorney's fees.

We affirm.

Background

In his original petition, Schaefer, a California resident, alleged that Bellfort received a judgment and turnover order against Schaefer and others in "a Harris County court" on March 3, 2004 (the "underlying judgment").^[1] Schaefer asserted that the underlying judgment became dormant ten years later, on March 4, 2014 because Bellfort did not file a writ of execution within the statutory ten-year period and did not apply for a writ of scire facias or an action of debt before March 4, 2016.

According to Schaefer, Bellfort filed a writ of execution on December 19, 2014. And on June 13, 2016, the underlying judgment was "unlawfully and untimely domesticated in California" and "enforced [through] the garnishment of . . . Schaefer's wages." Schaefer sought a declaration that "because the [underlying] judgment was dormant without being properly renewed, it was not only expired, but forever barred and could not be legally domesticated or enforced in California." He requested attorney's fees under the Uniform Declaratory Judgments Act (the "DJA").^[2]

Bellfort answered, generally denying the allegations in Schaefer's petition. Bellfort also brought a counterclaim against Schaefer for declaratory relief, seeking a declaration "that the [underlying] [j]udgment [wa]s valid subsisting and enforceable," "not dormant or expired," and "domesticated in California." Bellfort requested attorney's fees under the DJA.^[3]

At trial, Randall Wilkins, Bellfort's former counsel in the suit between Bellfort and Schaefer that resulted in the underlying judgment, testified that he recalled requesting and paying the fee for a writ of execution based on the underlying judgment in late 2004. The Harris County District Clerk issued a writ of execution in January 2005. Wilkins sent the "January 2005 writ back to the clerk" after reviewing it because he was "not happy with the wording." Along with "a redline version" of the writ, he "sent the clerk a letter with some suggested changes." Wilkins did not "deliver the January [2005] writ to the constable because [he] wanted it reworded; so [he] referred it to the . . . clerk." He later "found an unsigned copy" of the January 2005 writ in the clerk's records, but he "did not find a signed copy." Ultimately, Wilkins received and returned to the clerk a "February 2005 writ," issued under the trial court cause number for the underlying judgment, for which he had no changes. Wilkins searched the trial court's records but was unable to find a signed or stamped copy of either the January 2005 writ or the February 2005 writ. He asked the clerk's office to search its records, but it was also unable to find a copy of the signed February 2005 writ. Wilkins was able to obtain an unsigned copy of the February 2005 writ "but not a signed copy."

During his testimony, Wilkins was shown Defendant's Exhibit 8, a printout of a record from the Justice Information Management System ("JIMS") of the Harris County Constable's Office ("HCCO"), Precinct One showing that a writ based on the underlying judgment was issued on January 14, 2005 and assigned tracking number 71860594, which was admitted into evidence. And he stated that Defendant's Exhibit 8 lists the "Serving Agency Receive Date" as February 24, 2005, the "Served Date" as March 11, 2005, the "Service Status" as "S," and the "Return Date" as March 30, 2005.The same tracking number that appears on Defendant's Exhibit 8 also appears on Defendant's Exhibit 9, another JIMS printout admitted into evidence, which refers to the "process type" as a "reissue" and shows a writ based on the underlying judgment was received by the HCCO, Precinct One, on February 24, 2005. Wilkins confirmed that he delivered only "one writ to the constable" in 2005, and "[i]f the constable received a writ, it ha[d] to be" the writ that Wilkins characterized as the "February 2005 writ."

Defendant's Exhibit 9 states that the writ was "executed [on March 11, 2005] by selling the defendant's real property at public auction ...." Wilkins testified that he was present at the sale the judgment-debtor property that was the subject of the writ. After the sale, Wilkins received a bill of sale for the property from the HCCO, a copy of which was admitted into evidence as Defendant's Exhibit 10. The bill of sale recites:

Whereas, by virtue of a certain "Alias" Execution and Order of Sale in Cause No. 2000-05873, . . . on a certain judgment rendered on the 3rd day of March, 2004, directed and delivered to me as Constable, Precinct 1 of Harris County, commanding me of the goods and chattels, lands and tenements of the said Michael Schaefer in his capacity as Trustee, and from Derek Schaefer and Michael Schaefer individually, jointly and severally, to make certain moneys in said writ specified I, Jack F. Abercia, Constable, Precinct 1, as aforesaid did on the 24th day of February, 2005, levy upon and take into my possession the property hereinafter described, and, after advertising the same as required by law, I did, on the 11th day of March, 2005, within the hours prescribed by law, at the Family Law Center, 1115 Congress, Harris County, in the City of Houston, Texas, sell said property at public venue when the same was struck off to Bellfort Chateau Limited Partnership for the bid of $10, 000.

Michelle Gaines testified that she was the Manager of the Civil Support Section for the Harris County District Clerk's Office and previously she was the Civil Post-Trial Supervisor for the clerk's office. While serving as the Civil Post-Trial Supervisor, Gaines spoke with Bellfort's counsel about searching for a writ of execution issued in 2005 based on the underlying judgment. Gaines confirmed that Defendant's Exhibit 8 was a screenshot of the "service return screen in the JIMS system," which was used by the clerk's office to track writs that had been issued, executed, or returned to the clerk's office at the time. And 71860594, the tracking number shown on Defendant's Exhibit 8, was unique to the writ issued by the clerk's office in 2005. The JIMS system automatically assigned the tracking number. So "if a totally new writ was issued, then it would have a different tracking number and a [different] transaction number."

At the time a writ of execution was issued by the clerk's office in 2005, the clerk's office was not "electronic; so [the writ] probably came in via mail" or it was "brought . . . into the office." According to Gaines, Defendant's Exhibit 8 shows that the receipt number for the writ issued by the clerk's office in 2005 was 104256, the "Served Date" was March 11, 2005, and the "Return Date" was March 30, 2005. The exhibit also shows that the serving agency was "CO1," which, Gaines explained, referred to the HCCO, Precinct One.

Gaines also testified that Defendant's Exhibit 7, which was admitted into evidence, is a copy of a printout of the electronic record from the clerk's office of "the transactions [i]n th[e] particular [trial court] case number," in which the underlying judgment was rendered. The tracking number and the receipt number matched those in Defendant's Exhibit 8, as did the request date of December 29, 2004 and the transaction number of 7063346.

Gaines explained that, according to the clerk's office's practice at the time the writ was processed, before "the clerk enter[ed] the information into the JIMS system," the clerk matched the number on the return to the number on the writ issued "to make sure that the tracking numbers and the dates [we]re correct." Gaines confirmed that Defendant's Exhibits 7 and 8 showed that a writ was issued by the clerk's office on January 14, 2005 (the "2005 writ of execution"), was received by the HCCO, Precinct 1, on February 24, 2005, was served by the HCCO, Precinct 1, on March 11, 2005, and was returned to the clerk's office on March 30, 2005.

As for the reason for a lack of a physical copy of the signed 2005 writ of execution issued by the clerk's office, Gaines stated that she could not determine why it was not found. But she noted that "[twelve] years ago, everything was [in] paper format" and there were "more than one set of hands touching [each] particular document ...." After diligently searching and not finding the 2005 writ of execution, Gaines assumed "that it was misplaced or displaced somewhere between the time of being entered into the [JIMS] system and going to the actual case file."

Gaines further confirmed that the copy of the post-trial clerk's record, admitted into evidence as Defendant's Exhibit 12 showed that there were three writs issued in the suit that resulted in the underlying judgment: the first writ was issued on November 9, 2004, and returned on December 10, 2004;^[4] the second writ (i.e., the 2005...