Canyon Lake Bank appeals the trial court judgment awarding Clay Townsend a money judgment on the jury's verdict in his suit
Canyon Lake Bank obtained against Townsend a money judgment for debt, rendered February 12, 1979 in the Comal County Court-at-Law. On March 28, 1979, the judgment having become final upon rendition by the judge, Tex.R.Civ.P.Ann. 657 (1967),
On April 13, 1979, about nine days after the writ of garnishment was served on the First National Bank, Townsend protested to it that the check drawn against his trust account had been dishonored. The First National Bank communicated Townsend's protest to Canyon Lake Bank, which consented the same day to payment of the trust account check. Thereafter, Townsend sued the Canyon Lake Bank for wrongful garnishment, alleging that the impoundment of his trust account was a proximate cause of actual damages to him in the amount of $40,000.
The jury found in answer to special issues that the funds in Townsend's trust account belonged entirely to persons other than Townsend; and that the issuance of the writ of garnishment proximately caused damage to Townsend's professional reputation and good will in the amount of $20,000 and a loss in future earnings by him in the amount of $12,464.45. The trial court rendered judgment on the verdict and this appeal ensued.
It is beyond dispute that the funds in the trust account maintained by Townsend in the First National Bank were not subject to impoundment by the writ of garnishment. Belva Oil Co. v. Lowe, 27 S.W.2d 599, 600 (Tex.Civ.App.1930, no writ); King & King v. Porter, 229 S.W. 646 (Tex.Civ. App.1921) rev'd on other grounds, 113 Tex. 198, 252 S.W. 1022 (Tex.1923). Moreover, it is apparent from the parties' respective positions on appeal that their dispute involves only questions of law.
Canyon Lake Bank, in its first point of error, contends there was no evidence to establish a cause of action for wrongful garnishment. Post-judgment applications for writs of garnishment may be granted, and the writ issued, when the judgment creditor "has a valid, subsisting judgment and makes affidavit that the defendant has not, within his knowledge, property in his possession within this State, subject to execution, sufficient to satisfy such judgment." Tex.Rev.Civ.Stat.Ann. art. 4076 (1966). "A garnishment is wrongful if the allegations set forth in the affidavit as prescribed by [the] statute are false." Jarvis, Creditor's Liability in Texas for Wrongful Attachment, Garnishment, or Execution, 41 Tex.L. Rev. 692, 705 (1963). Townsend contends that the garnishment was wrongful on two alternative legal theories supported by the evidence.
First, Townsend asserts that wrongful garnishment was established by the admitted failure of Canyon Lake Bank to state in its affidavit that Townsend, within the knowledge of Canyon Lake Bank, did not possess property in Texas which was subject to execution and sufficient to satisfy the judgment against him. We disagree. The affidavit required to support the issuance of a writ of garnishment is the pleading of the applicant for the writ. Townsend, as the judgment debtor, was not a party to the garnishment proceeding between
Second, Townsend contends that his cause of action for wrongful garnishment was established merely by his showing at trial that the funds in his trust account at the First National Bank were "frozen" as a result of the writ of garnishment and that the trust account contained no credits belonging to him, but only to others for whom he held the funds in trust. Our attention has not been invited to any authority, nor have we found in any jurisdiction a case, where a judgment debtor has successfully maintained a cause of action for wrongful garnishment of funds belonging to others, although held by him in trust, seeking damages for injuries sustained by the debtor to his reputation and future earnings.
The writ of garnishment in the present case commanded the First National Bank to appear and answer under oath the following:
The record establishes that Townsend did maintain in the First National Bank checking accounts containing funds which did indeed belong to him, and that his trust account in the same bank was clearly identified as such. There is, on the other hand, no evidence that Canyon Lake Bank caused Townsend's trust account funds to be "frozen," which appears from the record to have been merely the unilateral action taken by the First National Bank to avoid exposing itself to liability to Canyon Lake Bank. Tex.Rev.Civ.Stat.Ann. art. 4084 (1966); Tex.R.Civ.P.Ann. 664 (Supp. 1982). The record contains no basis for imputing to Canyon Lake Bank the act of the First National Bank in impounding the funds in Townsend's trust account; that is
We therefore sustain the first point of error raised by Canyon Lake Bank and need not, for that reason, address the remaining points of error.
The judgment of the trial court is reversed and we render judgment that Townsend take nothing by his suit against Canyon Lake Bank for wrongful garnishment, the only cause of action alleged in his pleadings.