Opinion
No. 04-05-00022-CV
Delivered and Filed: September 28, 2005.
Appeal from the 150th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-CI-05797, Honorable Janet P. Littlejohn, Judge Presiding.
Reversed and Remanded.
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
In three issues, Isidro Martinez Ramirez contends that the trial court erred when it denied his motion to compel a non-party witness to answer discovery and dismissed his turnover proceeding due to lack of jurisdiction. Because we hold that the trial court had jurisdiction, we reverse the order and remand the cause to the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
In 1998, Ramirez recovered a default judgment in Bexar County Court at Law Number 2 against his ex-girlfriend, Angela Menjares Orozco, for the alleged theft and conversion of personal property. Seeking assistance in satisfying this judgment, Ramirez filed a turnover petition in the 150th Judicial District Court of Bexar County (the "trial court"). Thereafter, Ramirez moved to compel a non-party witness, Pamela Stevens of the Texas Department of Public Safety (the "Department"), to answer post-judgment discovery. In response, the Department asked that the trial court deny Ramirez's motion to compel due to a lack of jurisdiction. On December 17, 2004, having found that it had no jurisdiction over the matter, the trial court denied Ramirez's motion and entered an order dismissing Ramirez's action. Ramirez appeals from this order of the trial court.
DISCUSSION
In three issues, Ramirez contends that the trial court erred in denying his motion to compel and dismissing his turnover action. In Texas, the turnover statute is a procedural device by which judgment creditors may reach assets of a debtor that are otherwise difficult to attach or levy on by ordinary legal process. See TEX. CIV. PRAC. REM. CODE § 31.002 (Vernon Supp. 2004-05). The turnover statute is not a device, however, through which a court can determine ownership of property. Cravens, Dargan Co. v. Peyton L. Travers Co., 770 S.W.2d 573, 576-77 (Tex.App.-Houston [1st Dist.] 1989, writ denied). Here, Ramirez filed his petition as a turnover action against Orozco, requesting that the court order the judgment debtor to turnover such non-exempt property as necessary to satisfy his judgment. Ramirez's pleadings are defective, however, because they identify no specific non-exempt property of the judgment creditor to "turn over." Indeed, by his own admission, Ramirez is wholly unaware as to whether Orozco possesses any non-exempt property at all. Instead, Ramirez's pleadings show that he intended to use the action merely as a vehicle for discovery to ascertain the location and existence of the judgment debtor and her assets. This amounts to an improper use of the turnover statute.
The "turnover" label is derived from the fact that the trial judge can order the debtor to deliver, or "turnover," nonexempt assets to an officer or a receiver when the assets cannot readily be attached or levied on by ordinary legal process. See, e.g., Ex parte Johnson, 654 S.W.2d 415, 417 (Tex. 1983) (original proceeding).
Under the Texas Rules of Civil Procedure, post-judgment discovery is to be initiated and maintained in the court that rendered the judgment, and the same rules governing and related to pre-trial discovery apply in like manner to discovery proceedings after judgment. See TEX. R. CIV. P. 621a; Arndt v. Farris, 633 S.W.2d 497, 499-500 (Tex. 1982). Therefore, because Ramirez failed to make his request for post-judgment discovery in the rendering court, the trial court did not err in denying Ramirez's motion to compel. Nevertheless, here, the trial court did have jurisdiction over Ramirez's turnover action. See TEX. CIV. PRAC. REM. CODE § 31.002(d) (Vernon Supp. 2004-05) ("[t]he judgment creditor may move for the court's assistance . . . in the same proceeding in which the judgment is rendered or in an independent proceeding"). Accordingly, we reverse the order dismissing Ramirez's case for lack of jurisdiction, and remand the cause to the trial court.
CONCLUSION
Because we hold that the trial court had jurisdiction, we reverse the order and remand the cause to the trial court for Ramirez to be given an opportunity to amend his pleadings to correct his defective "Original Turnover Proceeding." Cf. Mowbray v. Avery, 76 S.W.3d 663, 677-78 (Tex.App.-Corpus Christi 2002, pet. denied) (holding that before a trial court can dismiss a case, it must allow pleader an opportunity to amend when his pleadings fail to state a cause of action); Cameron v. Univ. of Houston, 598 S.W.2d 344, 345 (Tex.App.-Houston [14th Dist.] 1980, writ. ref'd n.r.e.) ("But only after a party has been given an opportunity to amend . . . may the case be dismissed for failure to state a cause of action").