Owen v. Vibrosearch Exploration, Inc.

694 S.W.2d 421, 1985 Tex. App. LEXIS 11615
CourtCourt of Appeals of Texas
DecidedMay 30, 1985
DocketA14-84-366-CV
StatusPublished
Cited by5 cases

This text of 694 S.W.2d 421 (Owen v. Vibrosearch Exploration, Inc.) 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
Owen v. Vibrosearch Exploration, Inc., 694 S.W.2d 421, 1985 Tex. App. LEXIS 11615 (Tex. Ct. App. 1985).

Opinion

OPINION

SEARS, Justice.

This suit began as a garnishment action. Before July of 1982, Vibrosearch Exploration incurred a debt of $86,514.13 to Western Exploration, Inc. for shot drilling services. On November 22, 1982, this debt was assigned to appellant who then secured a Montana judgment on the debt for $87,837.93 against Vibrosearch Exploration. Appellant filed this judgment in Texas under the Uniform Enforcement of Foreign Judgments Act. TEX.REV.CIV. STAT.ANN. art. 2328b-5 (Vernon Supp. 1985). Appellant had a writ of garnishment served to Superior Oil Co. on January 13, 1983. On February 1, 1983, the garnishee answered that it had been invoiced $203,956.41 by Vibrosearch Exploration for services performed. Between the time of service and answer of the writ, Vibrasonics intervened alleging that Vibrosearch Exploration’s account receivable from Superior had been sold to it on December 9, 1982. Interfirst Bank Houston intervened alleging that it received a security interest in the account from a loan transaction in July, 1982.

Appellant filed suit to recover the garnished account, damages and punitive damages alleging:

(1) that the sale of Vibrosearch Exploration’s assets to Vibrasonics on December 9, 1982 was void as a fraudulent conveyance under TEX.BUS. & COM.CODE ANN. § 24.02 and § 24.-03, (Vernon 1968).
(2) that the transfer of a security interest ’ in the accounts of Vibrosearch Exploration to Interfirst Bank on June 30, 1982 and July 1982 was not made for fair consideration and therefore void under § 24.03; and
(3) that appellees conspired to defraud appellant through the December 9, 1982, conveyance.

Sections 24.02 and 24.03 provide as follows:

§ 24.02. Transfer to Defraud Is Void
(a) A transfer of real or personal property, a suit, a decree, judgment, or execu *423 tion, or a bond or other writing is void with respect to a creditor, purchaser, or other interested person if the transfer, suit, decree, judgment, execution, or bond or other writing was intended to
(1) delay or hinder any creditor, purchaser, or other interested person from obtaining that to which he is, or may become, entitled; or
(2) defraud any creditor, purchaser, or other interested person of that to which he is, or may become, entitled,
(b) The title of a purchaser for value is not void under Sub-section (a) of this section unless he purchased with notice of
(1) the intent of his transferor to delay, hinder, or defraud; or
(2) the fraud that voided the title of his transferor.
§ 24.03. Debtor’s Transfer Not for Value Is Void
(a) A transfer by a debtor is void with respect to an existing creditor of the debtor if the transfer is not made for fair consideration, unless, in addition to the property transferred, the debtor has at the time of transfer enough property in this state subject to execution to pay all of his existing debts.
(b) Subsection (a) of this section does not void a transfer with respect to a subsequent creditor of or purchaser from the debtor.

The relationship between the appellees is that Vibrosearch, Inc. is the parent company and 100 percent owner of Vibrosearch Exploration, Inc. and Vibrosearch, Inc. (DENVER). Vibrosearch purchased the stock of Vibrosearch Exploration in March, 1982, from Roger and Dave Hodgin. The Hodgins are the owners of Vibrasonics, Inc.

The jury found in special issues:

(1) that Western Exploration was a creditor of Vibrosearch Exploration when Interfirst made a loan to Vibrosearch, Inc. in July 1982;
(2) that Interfirst gave value for the security interest that Vibrosearch Exploration granted to Interfirst on June 30, 1982;
(3) that the security interest and guarantee given by Vibrosearch Exploration to Interfirst was made for fair consideration;
(4) that appellant was a creditor of Vibro-search Exploration on December 9, 1982;
(5) and (6) that on December 9, 1982, the transfer of assets from Vibrosearch Exploration to Vibrasonics was intended by Vibrosearch Exploration to defraud appellant and to hinder or delay appellant from obtaining that to which he was entitled;
(7) that when Vibrasonics acquired the assets of Vibrosearch Exploration, Vi-brasonics had notice of the intent to defraud, delay, or hinder;
(13) that the transfer of the assets of Vi-brosearch Exploration to Vibrasonics was made for fair consideration;
(16) that appellant’s actual damages from the asset transfer to Vibrasonics was $94,321.93.

The trial court found no evidence to support the jury’s answers to issues Nos. 5, 6, 7, and 16 and disregarded them. On the basis of the jury findings that Vibrasonics paid fair consideration for the assets of the Vibrosearch companies on December 9, 1982, that Interfirst Bank gave fair consideration in exchange for the security interest in the assets of Vibrosearch Exploration on June 30, 1982, the trial court rendered judgment non obstante veredicto that appellant take nothing and that the garnished funds on deposit be paid to Vibra-sonies subject to the interest of Interfirst Bank. We affirm the judgment of the trial court.

Appellant raises twenty points of error and appellees, Interfirst Bank and Vibra-sonics, Inc. raise six cross-points of error.

Appellant contends in its second point of error that Interfirst Bank failed to prove any security interest in the garnished *424 funds. The security agreements given by Vibrosearch Exploration granted Interfirst Bank a security interest in all accounts of Vibrosearch Exploration then or thereafter existing. Appellant asserts that because the security agreement does not list the accounts used as security, or specifically name the Superior Oil account, it cannot be included. There is no legal requirement that the security agreement specifically list each account in which a security interest is being granted. A general reference to the accounts receivable may be used to cover all the accounts. Appellant’s second point of error is overruled.

Appellant contends in his third point of error that Vibrasonics failed to establish that the garnished funds were owed by the garnishee to Vibrasonics. Appellant argues that the Sale of Assets Agreement dated December 8, 1982, did not convey the account of Superior Oil because that account is not specifically named in the Agreement. The Agreement states that it covers all receivables of whatever kind or nature shown on or accruable as of the date hereof upon the books of Vibrosearch (including Vibrosearch Exploration), including, but not limited to those shown on the attached pages ... (emphasis added). No work was done for Superior Oil after the sale.

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694 S.W.2d 421, 1985 Tex. App. LEXIS 11615, Counsel Stack Legal Research, https://law.counselstack.com/opinion/owen-v-vibrosearch-exploration-inc-texapp-1985.