Industrial Indemnity Co. v. Texas American Bank—Riverside

784 S.W.2d 114, 1990 WL 17347
CourtCourt of Appeals of Texas
DecidedJanuary 24, 1990
DocketNo. 2-88-151-CV
StatusPublished
Cited by6 cases

This text of 784 S.W.2d 114 (Industrial Indemnity Co. v. Texas American Bank—Riverside) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Industrial Indemnity Co. v. Texas American Bank—Riverside, 784 S.W.2d 114, 1990 WL 17347 (Tex. Ct. App. 1990).

Opinion

OPINION

WEAVER, Chief Justice.

This appeal arises from a postjudgment garnishment proceeding. Appellee, Texas American Bank—Riverside (Bank), obtained the main judgment against Richard Shaw d/b/a Shaw Remodeling and Construction (Shaw). In execution of that judgment the Bank, as plaintiff-garnishor, served an application for writ of garnishment and a writ of garnishment on appellant, Industrial Indemnity Company (Industrial), the defendant-garnishee in the case here on appeal. Shaw had previously obtained a judgment against Industrial, which judgment was on appeal at the time the writ of garnishment was served on and answered by Industrial, but was thereafter affirmed on the appeal and became a final judgment prior to the Bank taking a judgment against Industrial in the present case. Industrial filed a verified answer to the writ of garnishment and subsequently filed a motion to discharge the writ of garnishment pursuant to Tex.R.Civ. P. 666, which motion was denied by the trial court. At the final hearing, on stipulated facts, the trial court granted judgment for the Bank against Industrial, the garnishee, for $12,-460.70, plus interest and attorney’s fees, and from which judgment Industrial has perfected this appeal. We affirm.

By its sole point of error, Industrial claims that the trial court erred in awarding judgment to the Bank because the debt from Industrial to Shaw was contingent and unliquidated, as of Industrial’s answer date under the writ, and was therefore not subject to garnishment.

Because the factual background involved in this case is complex, and involves three separate lawsuits bearing on Industrial’s debt to Shaw, we deem it appropriate to list the events chronologically.

Hambrick-Craig General Contractors, Inc. (Hambrick) was the general contractor on a construction project in Dallas. Industrial issued a statutory payment bond (bond) in connection with this project. Shaw and S.V. Delk (Delk), subcontractors, both did work on that project for which they were not paid.

Shaw Judgment

On March 3, 1986, Shaw procured judgment against Hambrick for work performed in connection with the project by partial summary judgment signed by the 141st District Court of Tarrant County (Shaw judgment). That judgment was in the sum of $12,460.70, together with prejudgment interest stipulated to be $659.56, [116]*116and attorney’s fees of $4,000.00, for a total sum of $17,120.26 plus postjudgment interest thereon until paid at the rate of 10% per annum, stipulated to be $3,883.72 as of June 9, 1988. Industrial was not a party to that action.

Delk Judgment

On February 26, 1986, Delk obtained a default judgment against Hambrick (Delk judgment) in the sum of $49,738.27 plus postjudgment interest at 10% per annum. That judgment included an award of $12,-929.70 in favor of an intervenor against Delk and Hambrick. If that award is subtracted from the $49,738.27 awarded to Delk, the remaining balance is $36,808.57. Delk is not a party to this appeal and he is mentioned only because his judgment against Hambrick is intertwined with Shaw’s claim and ultimate judgment against Industrial.

Bond Judgment

On April 7, 1986, Delk and Shaw filed suit against Industrial in the 191st District Court of Dallas County seeking recovery under the bond (bond lawsuit). They recovered a summary judgment against Industrial signed February 18, 1987 (bond judgment). Shaw was awarded judgment against Industrial in the sum of $12,460.00 (the discrepancy of $.70 between the amount of the judgment and the sum of $12,460.70 awarded to Shaw under the Shaw judgment was apparently the result of a clerical error in preparation of the bond lawsuit). Delk was awarded judgment against Industrial in the sum of $28,-177.66. Delk and Shaw together recovered $7,000.00 in attorney’s fees incurred in their respective actions against Hambrick, $6,000.00 in attorney’s fees incurred in the bond lawsuit, and $2,000.00 in attorney’s fees in the event of an appeal of the bond lawsuit to the court of appeals. That judgment erroneously stated the total of such awards, exclusive of the award for attorney’s fees on appeal, to be $53,736.66, rather than the correct total of $53,637.66.

There are discrepancies between the payment requests attached to Shaw’s and Delk’s affidavits which were filed in support of the motion for summary judgment in the bond lawsuit, and the amounts claimed by and awarded Shaw and Delk respectively, against Industrial in the bond judgment. Shaw’s payment requests totaled $11,513.63, not $12,460.00 (awarded under the bond judgment) or $12,460.70 (awarded under the Shaw judgment). Delk’s payment requests totaled $17,-535.78, not $28,177.65 (awarded under the bond judgment) or $49,738.27 (awarded under the Delk judgment).

The total amount awarded to Delk and Shaw under the bond judgment, exclusive of attorney’s fees and interest, was $40,-637.66 ($12,460.00 to Shaw plus $28,177.66 to Delk). This total was $8,631.61 less than the total sum of $49,269.27 awarded to them against Hambrick, consisting of $36,808.57 awarded to Delk, and offset by the award to the intervenor, by the Delk judgment, and $12,460.70 awarded to Shaw, exclusive of prejudgment interest and attorney’s fees under the Shaw judgment.

On March 16, 1987, Industrial filed its supersedeas bond and perfected its appeal of the bond judgment to the Fifth Court of Appeals District. That court affirmed the bond judgment by its opinion dated December 21, 1987.

Main Judgment

On June 11, 1987, the Bank obtained a default judgment against Shaw in the 342nd District Court of Tarrant County, Texas, in the amount of $60,470.23, plus postjudgment interest at the rate of 10% per annum. This is the judgment under which the writ of garnishment was issued. At the time of the issuance and service of said writ of garnishment on Industrial, this judgment was and remains a valid, subsisting judgment which has not been paid, satisfied, released, reversed, vacated, or otherwise discharged. Shaw does not possess property in Texas subject to execution sufficient to satisfy that judgment.

Writ of Garnishment

On August 5, 1987, the Bank’s application for writ of garnishment and writ of [117]*117garnishment were served on Industrial in the present ease, seeking recovery of sums owed by Industrial to Shaw. The writ contained the following language which was added to Tex.R.Civ. P. 661 in 1978, “You are further commanded not to pay to defendant any debt or deliver to him any effects, pending further order of this Court.” On August 24, 1987, Industrial filed its verified answer to the writ of garnishment, stating: that it was not indebted to Shaw; that as of that date Shaw had obtained against Industrial a full summary judgment in Cause No. 86-4310-J in the 191st Judicial District Court in and for Dallas County, Texas (bond judgment); that on or about March 16, 1987, Industrial filed a supersedeas bond in connection with its appeal from such summary judgment; that Industrial had perfected its appeal to the Court of Appeals for the Fifth District of Texas; that such appeal was still pending; and that Industrial’s indebtedness to Shaw was subject to the resolution of the appeal and any further proceedings in connection with that litigation. Industrial also stated that it had reason to believe that Hambrick was liable to Shaw under the Shaw judgment and attached a copy of that judgment to its verified answer.

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Cite This Page — Counsel Stack

Bluebook (online)
784 S.W.2d 114, 1990 WL 17347, Counsel Stack Legal Research, https://law.counselstack.com/opinion/industrial-indemnity-co-v-texas-american-bankriverside-texapp-1990.