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In re Discount Rental

Court of Appeals of Texas, Tenth District, Waco
Mar 16, 2005
No. 10-05-00043-CV (Tex. App. Mar. 16, 2005)

Opinion

No. 10-05-00043-CV

Opinion Delivered and Filed March 16, 2005.

Original Proceeding Opinion concurring in denial of motion for rehearing.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.


Discount Rental has finally made me understand its issue in its motion for rehearing. A brief history of the facts is necessary.

Discount Rental suffered a default judgment. It was reversed on appeal. Disc. Rental, Inc. v. Carter, No. 10-03-00276-CV, 2004 Tex. App. LEXIS 4203 (Tex.App.-Waco May 5, 2004, pet. denied) (mem. op.). During the pendency of that appeal, the Carters, who were the original plaintiffs that obtained the default judgment, sought to collect the judgment. Discount Rental did not post a supersedeas bond. The Carters pursued collection by writ of execution upon the assets of Discount Rental. Discount Rental's assets, the property it rents, were seized pursuant to a writ of attachment.

To avoid a forced sale at a traditional sheriff's sale, the parties agreed that the sale would be conducted by a local auction company. The order of sale specified how the proceeds from the auction would be divided. Prior to the auction, the judgment upon which the writ of attachment was based was reversed. The Carters sought to proceed with the scheduled auction. The trial court ordered the execution sale to proceed.

Discount Rental filed a mandamus to obtain the return of its property pending a trial on the merits.

Without elaboration, this Court denied the mandamus. In re Disc. Rental, Inc., No. 10-04-00116-CV, 2004 Tex. App. LEXIS 6095, (Tex.App.-Waco July 7, 2004, orig. proceeding). Discount Rental petitioned the Texas Supreme Court for a writ of mandamus. That petition was also denied without an opinion which elaborated upon the reason for the denial. Carter v. Disc. Rental, Inc., No. 04-0571, 2004 Tex. LEXIS 829 (Tex. Sept. 10, 2004).

Because this Court granted a temporary stay, the original sale date had passed and was not rescheduled until after the Supreme Court denied the petition for writ of mandamus. The basis for the Supreme Court's denial is not clear. It could have been because there was not then pending an order to go forward with the forced sale, or because Discount Renal had not otherwise shown the need for a writ of mandamus, or for some other reason.

The trial court has now rendered another order regarding the sale of the property and refused to order that it be returned as required by Civil Practice and Remedies Code § 34.021 if the judgment supporting an execution sale is set aside and property has not been sold.

Discount Rental now seeks to stop the pending execution sale at auction of its property when there is no judgment to support the forced sale.

This mandamus presents issues that are more complex than what appears at first glance. Just some of the questions are:

1. Is a party's agreement to an order the equivalent of a contract?

2. If there is no Rule 11 agreement supporting the grounds upon which an order can be entered, but a party agrees to the terms of the order, is that, alone, binding or can a party revoke its agreement before the terms of the order are fulfilled?

3. Does the fact that the Carters were entitled to execute on the property, and all the parties were agreeing to the manner of conducting the sale and distribution of the proceeds, as opposed to the sale itself, change any of the analysis for answering the foregoing question?

4. If there is no separate agreement, outside the agreement to the manner of conducting an execution sale and distribution of the proceeds, does the reversal of the judgment upon which the forced sale is to be conducted remove the court's authority to order the forced sale?

Ultimately there seem to be two questions to be answered here:

1. Did Discount Rental irrevocably agree to the sale such that the Carters are entitled to compel specific enforcement of the sale without having to prevail on a breach of contract claim?

2. Even if the sale, after reversal of the judgment upon which it is based, is a wrongful execution sale of the property, has Discount Rental shown that the remedy of a suit for wrongful execution upon the property (because there is no judgment to support the forced sale) is an inadequate remedy thus authorizing issuance of the writ of mandamus?

CONCLUSION

Because Discount Rental has not shown that a suit for wrongful levy of execution would be an inadequate remedy, if the sale is conducted as scheduled, I concur in the denial of the motion for rehearing.


Summaries of

In re Discount Rental

Court of Appeals of Texas, Tenth District, Waco
Mar 16, 2005
No. 10-05-00043-CV (Tex. App. Mar. 16, 2005)
Case details for

In re Discount Rental

Case Details

Full title:IN RE DISCOUNT RENTAL, INC

Court:Court of Appeals of Texas, Tenth District, Waco

Date published: Mar 16, 2005

Citations

No. 10-05-00043-CV (Tex. App. Mar. 16, 2005)