Strobach v. Westex Cmty. Credit Union

• Decision Date: 05 April 2021
• Docket Number: No. 08-17-00182-CV,08-17-00182-CV
• Parties: Jodi STROBACH, Appellant, v. WESTEX COMMUNITY CREDIT UNION, Appellee.
• Court: Texas Court of Appeals

621 S.W.3d 856

Jodi STROBACH, Appellant,

v.WESTEX COMMUNITY CREDIT UNION, Appellee.

No. 08-17-00182-CV

Court of Appeals of Texas, El Paso.

April 5, 2021

ATTORNEY FOR APPELLANT: Richard G. Baker, Baker & Zbranek, P.C., P. O. Box 10066, 1935 Trinity, Liberty, TX 77575.

ATTORNEY FOR APPELLEE: Darrell W. Corzine, Kelly, Morgan, Dennis, Corzine & Hansen, P.C., P.O. Box 1311, Odessa, TX 79760-1311.

Before Rodriguez, C.J., Palafox, J., and Larsen, J. (Senior Judge), Larsen, J. (Senior Judge), sitting by assignment

OPINION

GINA M. PALAFOX, Justice

Appellant Jodi Strobach ("Strobach") appeals from a summary judgment dismissing her lawsuit against WesTex Community Credit Union ("WesTex"). By her suit, Strobach asserted claims of breach of contract, negligence, fraud, and deceptive trade practices against the credit union where she maintained a member account. Strobach asserted that WesTex released funds from her account in breach of her account agreement based on a garnishment judgment which was void and of no legal effect as against her or her account. We issued our original opinion on August 14, 2019, in which we agreed in part and disagreed in part with the trial court's summary judgment ruling. Thereafter, WesTex filed a motion for rehearing arguing we had made contradictory statements in our opinion by finding that a question of fact existed on Strobach's breach of contract claim while also recognizing the garnishment scheme at issue imposed duties on the creditor-garnishor that were not imposed on WesTex as garnishee. We deny the motion for rehearing, withdraw our prior opinion and judgment, and substitute the following opinion. We reverse and remand in part and affirm in part.

I. BACKGROUND

A. The Factual Background

1. The Underlying Lawsuit against Jones and Strobach

TransPecos Banks f/k/a Security State Bank of Pecos (the Bank) sued Appellant Jodi Strobach and her father, Roger Jones, in the 143rd District Court of Reeves County, Texas, Cause No. 08-12-19254-CVR. In the suit, the Bank alleged it had made a series of loans over the course of several years to Jones, individually, and to two corporate entities he had formed. Only Jones and the corporate entities were named as borrowers or guarantors of the loans at issue. Strobach, however, had served as a corporate officer of one of the two corporate entities which was by then defunct. After the loans went into default, the Bank filed suit against Jones, individually and d/b/a Jones Farms, and Strobach.¹

After filing suit, the Bank's counsel requested issuance of citations to both Jones and Strobach from the Reeves County District Clerk. The letter to the clerk requested service on Jones by the Sheriff's Department at an address specified in Pecos, Texas. As for Strobach, however, the letter provided an address at 3113 SW 102ND TER, Oklahoma City, Oklahoma 73159-6008, and included a request for citation to be forwarded to the Bank's counsel's office for service on Strobach. Although the clerk issued a citation to Strobach, the address included on the citation itself differed from what had been requested being that it was directed to Southeast 102nd TER not Southwest 102nd TER. No return reflecting the date and time of service on Strobach was ever filed of that citation. A second citation was later issued to Strobach at 4809 SE 28th Street, Moore, Oklahoma 73160, which was a different address from the first. The envelope from the clerk's office reflects that a citation was mailed by certified mail, restricted delivery, to the address stated but it was later returned unclaimed.

In April of 2010, the Bank obtained a final judgment (the "2010 Judgment") on its suit for nonpayment of two outstanding loans. The 2010 Judgment against Jones awarded damages totaling over $260,000, together with interest and attorney's fees in the amount of $7,000. The 2010 Judgment was signed by Judge Bob Parks (now deceased) of the 143rd District Court. Because Strobach had not ever been served with legal process, she did not participate in the proceeding and no judgment was adjudicated or entered against her. Regardless, the 2010 Judgment signed and entered of record retained the original case-caption of the suit such that Strobach's name appeared therein as a named defendant. Beyond the caption, however, Strobach's name was not mentioned in substance within the text of the 2010 Judgment either as a defendant or as a judgment-debtor.

2. The Applications for Writ of Garnishment

In December 2011, the Bank filed a series of post-judgment applications with the trial court requesting writs of garnishment against WesTex and two other garnishees. Along with the original case caption, each application affirmatively asserted that the Bank had obtained "a valid, subsisting judgment" not only against Jones but also against Strobach. Not having participated in the earlier suit, attorney Jody D. Jenkins signed all such applications in his capacity as the Bank's attorney. Affidavits by Jenkins attached thereto repeated the factual assertion that the Bank had obtained a judgment against both Jones and Strobach. Jenkins' affidavit averred the amount due and unpaid on the judgment was $225,277.25. One such application for a writ of garnishment was directed to WesTex, a credit union in which Strobach had maintained a member account as of 2008. Although the account agreement solely named Strobach as the account owner, it also listed Jones as a "convenient" or "authorized signer," and as discussed in more detail below, he frequently deposited and withdrew funds from the account.²

3. The Writ of Garnishment served on WesTex

On December 13, 2011, the trial court issued a writ of garnishment to WesTex, as garnishee, which was served on its president. That writ reflected it originated from the case styled, "Transpecos Bank vs. Roger Jones Indv and d/b/a Jones Farms and Jodi Strobach," Cause No. 08-12-19254-CVR, pending in the 143rd District Court of Reeves County. In the greeting portion of the preprinted form, the writ informed WesTex that the Bank—as a prerequisite to its application for a writ of garnishment—had claimed an indebtedness and "having a valid and subsisting judgment in this court [ ] against the said Roger Jones individually and d/b/a Jones Farms and Jodi Strobach," in the sum of $316,496.93, had applied for a writ of garnishment against "WesTex Community Credit Union and Roger Jones." The writ commanded WesTex to timely answer and appear. Lastly, the writ commanded WesTex "NOT to pay to defendant any debt or to deliver to him any effect, pending further order of this court."

WesTex timely answered the writ asserting it held on deposit the amount of $118,997 in a "share account" solely in Strobach's name and a total of $454.61 in two other accounts owned by Jones. The answer further asserted WesTex had engaged the services of attorneys to represent it concerning the garnishment proceeding who had performed services to date including: "Review of the pleadings, orders and writs concerning this suit, conferences with Garnishee concerning the Garnishment and the subject accounts, telephone conferences with Garnishee and counsel for Garnishor; preparation and filing of this answer, and other related services." By its answer, WesTex asked the trial court to determine and adjudicate all claims to the funds it held, and to thereafter discharge it from all liability to "Garnishor and Debtor, respecting the funds [ ] described." The prayer also requested recovery of attorney's fees in a total amount of at least $650.

It is not disputed here that the Bank gave no notice to Strobach of the writ of garnishment served on her credit union thereby precluding her from answering or contesting whether she was a judgment debtor. The certificate of service included with WesTex's answer to the writ of garnishment reflects it was served on the Bank but not on Strobach.

On March 23, 2012, Judge Bob Parks of the 143rd District Court signed and entered an Agreed Final Judgment of the garnishment proceeding which was also "agreed to and approved" by attorney Jenkins for the Bank and by counsel for WesTex. Relevant to this suit, the Agreed Final Judgment included findings of fact based on a Rule 11 agreement between the Bank and WesTex. See TEX. R. CIV. P. 11. Among its findings, the Agreed Final Judgment found that all notices required by the statutes and rules of the State of Texas had been given prior to the entry of the judgment. Additionally, the judgment found that WesTex had deposits for the accounts of: (1) Jones, a share account with a sum of $102.27, (2) Jones, a checking account with a sum of $352.34, and (3) Strobach, a share account with a sum of $118,997. It also included a statement that WesTex had represented and agreed it had employed an attorney to represent it in the garnishment proceeding who filed an answer on its behalf. Based on the findings of fact, the Agreed Final Judgment ordered, adjudged and decreed that WesTex recover $750 to be paid from the garnished accounts, and the Bank was entitled to recover the remaining funds of $118,701.61 from those accounts.

On July 5, 2012, the Bank notified the 143rd District Court it had recovered the sum of $118,701.61 in partial satisfaction of judgment. According to Strobach, she did not find out about the garnishment proceeding until over two months later when she went to withdraw money from her account, and only then discovered her funds had been garnished. When she contacted her father to ask him what he knew about the matter, he informed her that the Bank had garnished the funds but told her not to worry as he would take care of the situation.

Neither Strobach nor Jones filed a direct challenge to the Agreed Final Judgment. However, in October of 2012, when the Bank filed a second lawsuit against Jones and Strobach seeking to collect on other loans made by the Bank to Jones and his corporate entities (including the JSF Corporation of which Strobach was the...