Putman & Putman, Inc. v. Capitol Warehouse, Inc.

• Decision Date: 09 August 1989
• Docket Number: No. 3-88-254-CV,3-88-254-CV
• Parties: PUTMAN & PUTMAN, INC., Appellant, v. CAPITOL WAREHOUSE, INC., et al., Appellees.
• Court: Texas Court of Appeals

Page 460

775 S.W.2d 460

PUTMAN & PUTMAN, INC., Appellant, v. CAPITOL WAREHOUSE, INC., et al., Appellees.

No. 3-88-254-CV.

Court of Appeals of Texas,

Austin.

Aug. 9, 1989.

Rehearing Denied Sept. 13, 1989.

Donald P. Stecker, Putman & Putman, Inc., San Antonio, for appellant.

Philip F. Patman, Patman & Patman, Austin, for appellees.

Before POWERS, JONES and SMITH ^*, JJ.

POWERS, Justice.

Putman & Putman, Inc., a law firm, appeals from a final judgment awarding Capitol Warehouse, Inc. certain funds deposited in court by a garnishee, American Heritage Life Insurance Company of Texas, in a post-judgment garnishment suit brought by Capitol. We will reverse the judgment and remand the cause to the trial court.

THE CONTROVERSY

Capitol brought the garnishment suit on sworn allegations, in its application for the writ, that it had recovered judgment on February 29, 1988 against Arthur Munoz in the amount of $14,326.46, together with costs and post-judgment interest; that the judgment remained unsatisfied; and that Capitol believed with reason that American had "in its possession effects belonging to" Munoz. See Tex.Civ.Prac. & Rem.Code Ann. § 63.001(3) (1986); Tex.R.Civ.P.Ann. 657 (Supp.1989).

American answered under oath that it was indebted to Munoz but in particular circumstances: that American owed Munoz $15,000.00 for his "release and discharge of all claims, rights, demands, debts, liabilities, controversies and causes of action" In its intervention, Putman had pled that it owned "a vested 40% interest" in the $15,000.00 by reason of an assignment from Munoz that preceded the 1988 judgment recovered by Capitol, as set out in an alleged contract between Munoz and Putman that was attached to and incorporated in Putman's pleading. The instrument, dated March 11, 1986, reflects that Munoz engaged Putman to represent him in his claims "arising out of [the] death of [his wife] Nelia for ins. proceeds," and assigned Putman 40% of any "recovery" obtained. The face of the contract does not indicate that it encompassed Munoz' claim against American.

and that American believed "the law firm of Putman & Putman, Inc. in San Antonio, Texas, has or claims an interest" in the $15,000.00. In apparent explanation of why American did not join Putman in the suit, the answer recited that Putman had already intervened therein. See Security Nat. Bank v. Morgan, 245 S.W. 455, 457 (Tex.Civ.App.1922, writ ref'd). American was eventually "discharged and dismissed" from the suit, under the terms of an agreed order, after depositing the $15,000.00 in the registry of the court.

Capitol did not controvert or take special exception to either American's answer or Putman's pleading in intervention. We believe, however, that American's answer, which pointed out Putman's claim to own an interest in the $15,000.00, put in issue the question of title to the funds. Thompson v. Fulton Bag & Cotton Mills, 155 Tex. 365, 286 S.W.2d 411, 414 (1956); Hendrick v. Johnston, 32 S.W.2d 883 (Tex.Civ.App.1930, no writ). The case proceeded to trial on American's answer and Putman's pleading in intervention.

Capitol introduced in evidence an abstract of its 1988 judgment against Munoz, and the testimony of a witness that the judgment debt had not been paid. It offered no evidence to show that Munoz owned any of the $15,000.00. Putman introduced in evidence a copy of the 1986 contract wherein Munoz had engaged Putman's services. A lawyer employed by the Putman firm testified that under the contract Munoz retained Putman "to represent him against various insurance companies, including American" in his claims "arising out of the death of his wife, Nelia," and assigned Putman 40% "of any recovery which was effected either through a settlement or a lawsuit." By implication, the lawyer included in the contract Munoz' claim against American, although American is not listed by name among what are, apparently, insurance companies listed in the contract: "AWOT, Am.F.d. LIC. & Nat. Life & Acc. Ins. Co." This was the sum and substance of the evidence adduced at trial.

The judgment given by the trial court awards the entire $15,000.00 to Capitol, save for $743.17 awarded American for its costs, and orders that Putman take nothing. The judgment rests upon findings of fact and conclusions of law; consequently, we may not consider in our review any other disputed fact issues as grounds for upholding the judgment. Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73, 84 (1939).

Putman assails the judgment on two points of error: (1) the trial court erred in awarding Capitol the entire $15,000.00 because $6,000.00 of that amount belonged to Putman as a "vested property interest"; and (2) the trial court erred in its express finding of fact, and related conclusion of law, that there was "no evidence" of any "relationship" between Putman and the $15,000.00, and "no evidence" of any services provided by Putman to Munoz under their contract. Capitol rejoins that Putman's employment contract did not assign Putman anything except a contingent right to share in any "recovery" Munoz might receive by his claim; and Munoz never received the $15,000.00 because the writ of garnishment intervened and American paid the $15,000.00 into court. Moreover, Capitol argues, Putman failed utterly to introduce evidence to establish the factual elements of its claim to the $6,000.00 under its contract with Munoz, even though Putman's lawyer might have related some of those elements to the court by way of

introductory remarks as opposed to sworn testimony.

DISCUSSION AND HOLDINGS

Putman's first point of error, as stated, is quite general; nevertheless, the argument thereunder directly and plainly draws our attention to Putman's specific complaint: that the $6,000.00 was not shown to belong to Munoz, but to Putman, and the trial court therefore erred in its finding of fact number six, and conclusion of law number four, which declare that Capitol was entitled to recover all of the $15,000.00 as the property of Munoz. We will sustain the point of error, albeit for a slightly different legal reason: that Capitol failed to carry its burden of proving that the $15,000.00 belonged to Munoz, when his ownership had been put in issue by American's answer.

The primary issue in a garnishment suit is whether the garnishee is indebted to, or has in his possession effects belonging to, the debtor; and this may require "a determination of the title to or ownership of funds held by the garnishee if title or ownership were doubtful...