Charles v. Tamez

• Decision Date: 31 March 1994
• Docket Number: No. 13-93-452-CV,13-93-452-CV
• Citation: 878 S.W.2d 201
• Parties: Gloria CHARLES, Individually and on Behalf of the Estate of Gilberto Charles, Deceased, Appellant, v. Raul TAMEZ and Adams & Graham, L.L.P., (Intervenor), Appellees.
• Court: Texas Court of Appeals

Page 201

878 S.W.2d 201

Gloria CHARLES, Individually and on Behalf of the Estate of Gilberto Charles, Deceased, Appellant, v. Raul TAMEZ and Adams & Graham, L.L.P., (Intervenor), Appellees.

No. 13-93-452-CV.

Court of Appeals of Texas Corpus Christi.

March 31, 1994.

Rehearing Overruled May 26, 1994.

R. Bruce Phillips, Fleuriet & Schell, Harlingen, Philip Maxwell, Longley & Maxwell, Austin, for appellant.

Moises Vela, Vela & Vela, Harlingen, Edward Stapleton, III, Frank Costilla, Yolanda De Leon, Costilla & Stapleton, Brownsville, for appellees.

Before SEERDEN, KENNEDY and DORSEY, JJ.

OPINION

KENNEDY, Justice.

Gloria Charles, individually and on behalf of the estate of Gilberto Charles, sued Raul Tamez and others for damages resulting from the personal injuries and wrongful death of Gilberto Charles. After prevailing on the merits, Charles sought turnover by Tamez of two choses in action. Tamez's attorneys, the law firm of Adams & Graham, L.L.P., intervened. The court denied Charles her requested relief. She appeals by four points of error. We affirm.

Gilberto Charles was seriously injured in a car wreck while a passenger of Tamez. Tamez turned left into the path of an oncoming truck. Mr. Charles was paralyzed. He received treatment at Valley Baptist Medical Center and a Veterans' Administration hospital. The Charleses sued Tamez two weeks after the accident. Tamez was insured by Farmers Texas County Mutual Insurance Company. Farmers hired Adams & Graham to defend the suit by the Charleses. Mr. Charles died less than two months after the accident.

On March 25, 1991, Mrs. Charles's attorneys hand-delivered a letter offering to settle all claims in the suit brought personally and on behalf of her husband's estate. The letter offered to settle for $20,000, the limit of Tamez's policy. The letter stipulated that the offer would expire at 5 p.m. on the fifteenth day after the date of the letter. The fifteenth day was April 9.

The parties' perception of events following the transmission of the offer diverge and form part of the basis of the causes of action that Charles asserts Tamez possesses. Adams & Graham mailed a response on March 27 which Charles interpreted as saying that Tamez would not agree to the settlement unless he received a release from Mrs. Charles as well as Mr. Charles's parents; Adams & Graham asserts that they responded that they could accept the offer if Tamez got the releases and indemnity against all lienholders. Charles's attorneys declined, but left the original offer open. On April 11, Adams & Graham dropped the demand that Charles's attorneys get releases from Mr. Charles's parents. Charles's attorneys rejected this purported acceptance because it was made two days after the deadline. Adams & Graham contend that Charles's attorneys did not inform them of the liens held by the two hospitals.

The case proceeded to trial. The jury found Mr. Charles contributorily liable for forty-five percent of his injuries. Tamez was found liable for $32,354.12 to Mrs. Charles and $148,163.22 to Mr. Charles's estate for a total of $180,517.34 in damages plus post-judgment interest and costs. The judgment was not appealed. The judgment remains unsatisfied except for the policy amount, which Adams & Graham says was sent to lienholders.

In her attempt to collect on the judgment, Mrs. Charles found that Tamez had no nonexempt assets subject to execution--none, that is, except for possible lawsuits against his representatives for their failure to accept the settlement offer for policy limits. See G.A. Stowers Furniture Co. v. American Indem. Co., 15 S.W.2d 544, 547 (Tex.Comm'n App.1929, holding approved); see also Allstate Ins. Co. v. Kelly, 680 S.W.2d 595, 608 (Tex.App.--Tyler 1984, writ ref'd n.r.e.). Mrs. Charles originally sought turnover in December 1992 by Tamez only of the suit against Farmers. She served Tamez through attorneys Jaime Balli of Adams & Graham and Moises Vela.

Vela and attorneys from Adams & Graham represented Tamez at the January 21, 1993 hearing on the turnover motion. The court admitted Tamez's affidavit in which he denied dissatisfaction with Farmers or Adams & Graham's representation of him. Tamez averred that he would not have permitted Farmers to settle for policy limits if such settlement left him exposed to liens by the hospitals. The court granted turnover of Tamez's claims against Farmers and any other parties liable for the manner Farmers oversaw Tamez's defense. Tamez moved for new trial.

At the hearing on the motion for new trial on April 15, 1993, Adams & Graham represented Tamez without Vela. Tamez reasserted that the failure to settle was not unreasonable and thus no cause of action existed to be turned over. He also contended that the turnover order was too broad because it included claims against "any other liable parties;" Charles agreed, and submitted a modified order limiting potential liability to persons associated with Farmers and Adams & Graham. Both sides also agreed that the order should require accounting for excess to Tamez. Charles asked the court to order a sheriff's sale of the causes of action to determine their value. The court entered Charles's proposed modified order. The order required accounting to Tamez only of the excess proceeds from the sale, not of any excess from the suits.

Adams & Graham moved to intervene and to quash the sale. Tamez, now represented by Vela alone, also moved to quash the sale, reiterating his complaint that the turnover was not supported by evidence of a real claim and that the order was vague as to the nature of the claims to be sold. He complained that the order erroneously put the entire claims up for sale rather than only the amount of Tamez's debt. He also argued that malpractice claims are exempt and unassignable. Charles moved to strike the intervention of Adams & Graham, contending that it came after the final judgment and was thus too late.

In live testimony at the May 6, 1993 hearing on the motion to quash, Tamez reiterated his assertion that he would not have approved the settlement if it left him exposed to liability to the hospitals. He also emphasized his satisfaction with his legal counsel. He said that no one had told him that his attorneys committed malpractice. Edwin Fleuriet, Charles's counsel, took the stand and testified that Tamez's Adams & Graham attorneys had come to his offices and admitted in May or June 1991 that they had committed malpractice under Allstate v. Kelly by failing to accept the settlement offer; Fleuriet said that the Adams & Graham attorneys offered to use their malpractice coverage to effectuate the settlement. Fleuriet said that he rejected their offer because he believed that their admission would expand the amount that he could recover for his client. At the end of the hearing, the court allowed Adams & Graham to intervene, denied the motion to strike the intervention, and quashed the sale of the causes of action against both Farmers and Adams & Graham.

The court entered findings of fact and conclusions of law on June 14, 1993 to support its order quashing the sale. The court found that Tamez did not believe he had a claim against his representatives and therefore did not desire to sue. The court also found that Charles had not established that Tamez had any such claims. Based on these findings, the court exercised its discretion and denied turnover.

On June 7, 1993, Charles moved for new trial and for modification of the order granting Adams & Graham's motion to quash and Tamez's motion for new trial. On July 20, 1993, the court denied Charles's motion. On July 28, 1993, Charles perfected her appeal by filing a deposit of cash in lieu of a cost bond. ¹

By point of error four, Charles contends that the court erred when it allowed Adams & Graham to intervene. Even were we to find that the court erred by allowing the intervention, however, we see no causal connection between the intervention and the judgment complained of in this case. As Adams & Graham had represented Tamez in the early stages of this motion, its voice was not new to the proceeding. Setting aside the heated dispute over the ethicality of that representation, we believe Tamez could just as easily have presented the arguments that Adams & Graham made as intervenor. Since the disposition of the intervention of Adams & Graham had no bearing on the disputed denial of the turnover order, we decline to rule on point four. ² See TEX.R.APP.P. 90(a).

The remaining points of error are essentially variations on a theme. Charles contends by point one that the court erred in denying turnover of the causes of action against Farmers and Adams & Graham. By point two, she argues that the court erred by finding that Charles failed to show that Tamez owns these choses in action, thus entitling Tamez to turnover relief. By point three, she contends that the court erred in denying turnover relief because she was entitled to aid from the court in reaching Tamez's only known nonexempt assets--the choses in action. Charles particularly challenges these findings and conclusions:

2. Defendant Tamez does not believe he has any such claims and for that reason did not desire to sue.

3. Plaintiff has failed to establish sufficient facts of the existence of the alleged claims against Adams & Graham, and the agents, servants and employees of Farmers Insurance Group.

4. Plaintiff has failed to establish sufficient facts that Defendant Tamez is in possession of any such alleged property or alleged claims.

5. Relief under the Turnover Statute, § 31.002, Tex.Civ.Prac. & Rem.Code, is discretionary and equitable in nature. Plaintiff has failed to establish sufficient facts to support relief under the Turnover Statute.

We review the denial of turnover relief under an abuse of discretion standard. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex.1991). The turnover statute provides in part:

(a) A judgment creditor is...