DEL-PHI Engineering Associates, Inc. v. Texas Commerce Bank-Conroe, N.A., DEL-PHI

• Decision Date: 27 April 1989
• Docket Number: N,No. 09,BANK-CONRO,DEL-PHI,09
• Citation: 771 S.W.2d 589
• Parties: ENGINEERING ASSOCIATES, INC., Ernest W. DeLuca and Wife, Linda V. DeLuca, Appellants, v. TEXAS COMMERCEA. and Gibraltar Savings Association, Appellees. 88 148 CV.
• Court: Texas Court of Appeals

Page 589

771 S.W.2d 589

DEL-PHI ENGINEERING ASSOCIATES, INC., Ernest W. DeLuca and Wife, Linda V. DeLuca, Appellants, v. TEXAS COMMERCE BANK-CONROE, N.A. and Gibraltar Savings Association, Appellees.

No. 09 88 148 CV.

Court of Appeals of Texas Beaumont.

April 27, 1989.

Rehearing Denied May 18, 1989.

B.D. Griffin, Conroe, for appellants.

Don Stocking, Conroe, for appellees.

OPINION

BROOKSHIRE, Justice.

Appeal arising from a post-judgment garnishment proceeding in which an agreed judgment between Texas Commerce Bank-Conroe, N.A. (TCB) and Gibraltar Savings Association (Gibraltar) was entered over the objection of the Del-Phi Engineering Associates, Inc., and Ernest W. DeLuca and wife, Linda V. DeLuca, referred to, collectively, as the Appellants. The TCB, garnisher, had obtained a money judgment against the Appellants, above named, and Michael Glezman & Associates, Inc., a Texas corporation.

The money judgment was obtained in Cause No. 41,146-CV, filed in the 221st District Court of Montgomery County. The money judgment resulted from a loan to a partnership, DEL-PHI ENGINEERING, in which DEL-PHI ENGINEERING ASSOCIATES, INC., and MICHAEL GLEZMAN & ASSOCIATES, INC., were partners and which said loan was guaranteed by the individual Appellants, Ernest W. DeLuca and Linda V. DeLuca.

TCB filed its Application for Writ of Garnishment After Judgment on November 13, 1987, naming Gibraltar Savings Association as the garnishee. Gibraltar was served at its branch location in Conroe, Montgomery County. No service was issued or obtained upon the Appellants.

Gibraltar answered and, later, by an Amended Answer, stated that it was indebted to the Appellants by two deposit accounts. Gibraltar's Amended Original Answer admitted that, in one account, being Account Number 31-391459-6, in the name of Ernest W. DeLuca or Linda V. DeLuca, a balance existed in the amount of $21,424.55, as of the date of the service of the Writ of Garnishment, and a second account, being Account Number 47-575323-1, in the name of Del-Phi Engineering, had a balance of $20,973.32 on the date that the garnishee was served with the writ.

TCB gave no notice to the Appellants. Gibraltar gave no notice to the Appellants and Gibraltar did not interplead or implead the Appellants. Nevertheless, the Appellants filed their Motion to Dissolve Writ of Garnishment After Judgment, leveling no attack on Gibraltar's amended answer. Appellants, from the record before the District Judge, assumed the burden of their own Motion to Dissolve Writ of Garnishment.

One of the main thrusts of the Appellants' motion to dissolve the writ of garnishment after the judgment was that garnishment was not a common law procedure and was unknown to the common law. Appellants maintain that garnishment proceedings are wholly statutory and, as such, strict compliance with the statutory requirements is mandatory, citing to us, however, generally, TEX.R.CIV.P. 657 through 659 (Vernon 1967 and Vernon Supp.1989). The Appellants also averred that the District Court failed to issue a proper order upon which the writ of garnishment after judgment could have been based and that the Appellants-debtors did not receive service of the Writ of Garnishment nor a notice informing the debtors of the debtors' various rights, such as a right to file a replevy bond. Appellants further averred that TCB had knowledge of other property of Michael Glezman and Associates, Inc., which was, and is, more than sufficient to satisfy the judgment and which property was subject to the garnishment after judgment. These various facts were alleged to be well known to TCB.

Pleading affirmatively, the Appellants stated that the Account Number 47-575323-1, held in the name of Del-Phi Engineering, constituted a qualified retirement plan, which was said to be exempt from execution for the payment of the debt owed to TCB, and that, in the other Account Number 31-391459-6, standing in the name of Ernest and Linda DeLuca, the sum of $2,638.59, was a roll-over balance from an individual retirement account. Hence, it was alleged, the $2,638.59 is exempt from execution. After the Appellants had filed their Motion to Dissolve Writ of Garnishment After Judgment, the trial court overruled the same. This action was taken after hearing arguments of certain attorneys but without taking evidence. However, no evidence or testimony was proffered by the Appellants. A timely-filed Motion for New Trial, on behalf of the Appellants, was overruled.

There were two short hearings before the District Judge; one was on January 14, 1988. The second one was held on January 18, 1988. This second hearing was by agreement. In fact, this second hearing and the time thereof were specifically requested by the then trial attorney for the Appellants. This trial attorney's request advised the court that the assets of his clients were frozen. We find, in the record:

"[TRIAL COUNSEL FOR APPELLANTS]: ... This won't take, I don't think, five or ten minutes for you to rule on and since it has got some--a good deal of money frozen, it is realy [sic] rather a pressing matter. I wonder if you can dispose of this Monday morning?

"THE COURT: I can dispose of it Monday or Friday of this week.

"[TRIAL COUNSEL FOR APPELLANTS]: I was going to be in a seminar in Houston tomorrow. I would like to do it on Monday if we could.

"THE COURT: How about Monday morning, 9:00. [?]

"[TRIAL COUNSEL FOR APPELLANTS]: This is fine with me, Judge."

Again, no evidence was taken. No evidence, at all, was heard. The trial lawyer for the Appellants did take the initiative and asked the District Judge to vacate the writ, itself, citing TEX.R.CIV.P. 663. However,...