General Electric Capital Corp. v. ICO, Inc.

against George Kupchynsky and FGH based on their breach of the implied war-

ranty that the house was constructed in a

good Thus, and workmanlike manner. I

concur in part respectfully dissent in

part majority opinion. from the

GENERAL ELECTRIC CAPITAL

CORPORATION and Morris

Tabak, Appellants

ICO, INC., Timothy Gollin, J.

Weycer Kaplan Pulaski &

Zuber, P.C., Appellees.

No. 14-05-01095-CV. Texas,

Court of Appeals of (14th Dist.).

Houston

June

MAJORITY OPINION FOWLER, McKEE WANDA Justice. (GE) Appellants, Electric General Tabak, Morris appeal the trial court’s granting of a motion to a writ dissolve ICO, garnishment appellees, favor of (ICO), Gollin, Timothy Inc. Weycer Zuber, Kaplan Pulaski & P.C. GE and 1) bring appeal: three issues on whether the trial court erred in granting the motion to dissolve on the that basis garnished funds were exempt as current 2) service; for whether it grant was error to attorney’s fees in favor 3) Tabak; against of Gollin GE and whether reversibly the court erred filing findings of fact and conclusions of requested. law as We affirm the dissolu- writ, tion but reverse the trial court’s award of attorney’s fees to Gollin. Background Factual and Procedural began June of working for ICO as Chief Executive Officer. Gol- lin’s agreement stated would receive a package severance should his contract not be renewed. The contract stated that Gollin would be entitled to a package equal severance to one time his salary immediately prior base non- not, however, renewal. The contract did specify any payment, details of the such as timing or whether would be in a lump sum or over time. After the end of term, his contract Gollin was unable to an concerning reach with ICO renewal. Gollin and ICO that his nonrenewal entitled Gollin to severance pay. proposed the severance Tabak, Asafi, Houston, Morris Jamal A. year, over a full requested but Gollin appellants. lump payment. sum The two entered into Fischer, Charlotte Jean Kaplan, Richard a compromise agreement, stating Garrison, Tanya Houston, Nicole appel- the severance over a six month lee. period. FOWLER, meantime, Panel consists of Justices In the judg- GE obtained a EDELMAN, and FROST. against ment Gollin in the United States writ) (not 21, 1992, publi designated for District Court for the Southern District of cation). $389,102. Texas November 2001 for trial court abuses its discretion A pursued in state court guiding rules if it without reference acts ICO, against who owed Gollin sever- arbitrary or unrea principles, or payment, equivalent which of one ance Aquama Downer v. sonable manner. See $247,000. trial year’s salary, or Inc., 238, 241- rine Operators, garnishment, issued writ of thereaf- (Tex.1985). Gollin filed a motion to dissolve the ter in Hold- B. Abuse Discretion No Rule pursuant 664a of Texas Wages ing Severance Was Current argued Rules of Civil Procedure. He Personal Services garnished 664a, Procedure Under Rule Civil and, such, current as wages were or account has property defendant whose Constitution,

under the Texas the Texas vacate, dis- garnished seek been Code, Civil Practice and Remedies and solve, modify garnishment writ of or then an- Property Texas Code. cause, in- writ, or extrinsic or grounds for admitting swered the its indebted- ness, but as a under Texas pleading ground, defense trinsic. One such wages. law, amount Gollin’s current exemption garnishment constituted is the from wages personal service.” “current The trial court entered an order dissolv- Const, 28; XVI, § art. Tex Tex Civ. PRAC. writ, ing stating in its order that Peop. 63.004; § also Tex see & Rem.Code found the motion to dissolve meritorious. § 42.001. Code The court further ordered that GE and $3,500 attorney’s would fees garnishment exception for “The counsel, Weycer, Kaplan, to Gollin’s Pula- applies regard current without ski, Zuber, order, Following & P.C. compensation is denominated as whether requested findings of fact conclu- “wages’ ‘salary,’ controlling issue sions law. trial court never re- per it is being compensation for whether sponded request.1 to this Texas, Inc. v. sonal service.” Davidson Garcia, 791, (Tex.App. S.W.2d 793 664 Analysis writ). 1984, no This exception Austin Improperly I. The Was Not Dis- Writ liberally should construed favor of be solved (citing J.M. wage earner. Id. Radford A. Standard of Review 639, McKean, 41 Grocery Co. v. S.W.2d writ); (Tex.Civ.App.1931, 640 no see also from Precedent this court dictates Hickman, Tex. 234 Hickman v. 149 that we an abuse apply of discretion stan (1950)) ex S.W.2d 413 “[0]ur dard resolve whether the dissolution of liberally emption laws should be construed improvidently a writ of express exemptions, favor of and should granted. Express Am. Travel Related See meaning never restricted in their be Harris, Servs. v. minimize effect their operation so as 1992, writ); App.-Houston [14th Dist.] objects of the Parts, Denton, upon the beneficent statutes. Kyanize see also Inc. C14-91-00705-CV, the exemption gener Without doubt would No. 1992 WL claimant”). May ally favor of the (Tex.App.-Houston Dist.] at *5 be resolved [14th passed away peal judgment as if he alive. 1. We note that Morris Tabak and render during pendency appeal. pro- 7.1(a). of this We P. TexR.App. determining ap- ceed the merits record tells us only services within agreement initial employment between meaning of the Constitutional and stat- required Gollin and ICO to Gollin utory exemptions because the package parties severance were was Tinsley’s additional consideration for agreement unable to reach an regarding services. Id. at 640. contract It job renewal. was the of the King Floyd extended line Radford below, now, and it is job our reasoning. player’s football King, a construe such an agreement whether is for provision contract contained a that he “personal point services.” GE and Tabak injured, while he was so language supplemental in a agreement long physician opined as team that the ICO, between which states that player perform unable to due to his will upon be owed termi (Tex.Civ. injuries. 538 S.W.2d nation relationship. App.-Houston [1st ref'd Dist.] But this language states when the n.r.e.). The court that the held paid, why severance must be the sever player injury made to the after ren ance was owed. GE and Tabak also cites compete might dered him unable to language the original employment from additional compensation considered for the proof that the severance rendered, previously services and con

package payment continuing was for obli the salary strued continuation of inbe gations, such as agree nondisclosure and satisfactory the nature a bonus for ser However, ment not to sue ICO. this cited vice. Id. provision contract deals with the severance package that would have been owed had The liberal in favor construction Gollin’s been oth terminated express exemptions, as illustrated in Rad- er than non-renewal. The severance King, disposition controls our ford package pursuant in this case was owed contradictory this issue. When no con provisions provi different contractual — exists, language tract we hold that a sever sions which not the why describe sev payment liberally ance should be con Therefore, erance was owed. look we service, satisfactory strued as a bonus for case law for guidance construing wheth payments since be might such considered er personal severance are for compensation previ additional services for services. Here, ously rendered. although pay In Radford, grocery gar- store was an ment of severance is amount over nished for owing employ- an amount to its salary, and above Gollin’s normal the con ee, Tinsley. Tinsley’s 41 S.W.2d at 639. money tract not does state that the is for provided contract that he a set would earn something already other than services ren money month, per Tinsley amount of and if dered. remaining met the condition of with the Therefore, general of the because grocery year, for store more than one we apply exemption rule that laws bonus, an paid would be additional based liberally, because this contract does on a percentage his sales. Id. The trial clearly pay state that the severance allowed the based for ment was other than something per the idea amount over and above services, sonal and because courts have his hourly wage did not “current constitute agreements qualify found severance as wages ap- personal services.” Id. service, wages reversed, personal current pellate court relying on lib- eral trial court acted within its discretion when given exemption construction to be payment statutes. It held that the was in found Logeman Co. v. F.H. Chair wages nature of current Davidson There, em- a similar issue. presented service.2 month, paid but being per ployee was $75 No of Discretion Hold- C. Abuse as it be- collecting had been ing That Did Not Lose Ex- Severance wages that the came The court held due. empt Status hands of past due and which were argue even subject garnishment, employer wages when severance constituted current Sep- the month of amount due for owed, exempt it lost its status when it was tember, unable to employee which “leave” part sever- voluntarily left with collect and was with to be over time. ance current was still employer, an exemption it is true that While Davidson, wages. at 825. S.W. circumstances, lost under certain those cir- case, Douglass, reit- A third Sloan present cumstances are not here. are control and voluntariness erates that Wages Exemption May 1. Current elements to be considered two Be Lost has wages exemption whether the protection the constitutional destroyed. deciding been whether exemption may be lost when the player’s compensation baseball deferred employee under the control of the and the said, “Appel- exemption, lost the court employee voluntarily them with his leaves fact that great emphasis lants attach employer deposits or collects and them voluntarily appellee left his else. with someone Davidson F.H. leaving wages with Rangers. Voluntarily Logeman Chair S.W. ... as employer one’s one element writ); Civ.App.1897, no see also Sloan v. wages over other discuss the cases control Douglass, (Tex.App. 713 S.W.2d element to be con- being an additional n.r.e.) Fort Worth writ ref 'd Sloan, at 440. sidered.” 713 S.W.2d and are that voluntariness control both Rely On Sloan GE and Tabak to deciding elements be considered in if wages exempt). are lan- rely exclusively GE Tabak on and their guage support contention Sloan subject The seminal of losing case the exempt its sta- that severance lost Gollin’s wages current status is Bell Indian agreed paid to have it over tus when Gollin (Tex.1889). Live-Stock S.W. 344 Sloan, In a period. a six month baseball Bell, wage the a employee In was with Texas player signed contract the month, per money but left his $200 Rangers for services to be baseball club employer only his and drew funds as he year period. See id. rendered over five needed them. Id. at 344-45. The court third, salary in fourth and at 438. His the $624.50, had held the sum which increased, substantially year fifth employee’s accrued the account with his agreed to receive most of the increased status employer, exempt had lost be year period, beginning a ten amount over wages longer cause the were no current. over. year after five contract term was Id. at 346. Dist., Indep. argues shire Sch. 2. GE also definition of "sever v. Houston (Tex.Civ.App.-Houston [14th Code ance” in the Texas Administrative con 677-78 writ) (holding a word deciding fits Dist.] trols in whether severance within necessarily deter one act not wages. We hold that defined in does the definition of definition, meaning act deal Pay Texas the word’s in another which relates to the mine Rules, ing subject). different day apply here. See Brook with a does acknowledged id. The court that the and us GE Tabak have hold that appellee voluntarily signed ordinary diligence the contract. Gollin not exercise However, part Id. at in the to collect his severance and on, opinion exempt therefore the lost their rely wages GE and Tabak now sta- tus to a signed payout court that the “contract because he stated employer when any wages his refused to appellee right any had to or before lump appear sum. and money.” GE control over the Id. (emphasis added). maintain that must sued have imme- The court that although held diately when did not the full salary voluntary, deferral have been require amount. This claim would us to appellee never had control over conclude that an employer when em- money, wages and his did not their lose ployee legitimate dispute have a over the exempt status. See id. at 440-41. payout wages, employee’s an choice to Sloan, Agreement 3. Unlike Gollin’s negotiate money to obtain the due and “Voluntary” to Defer Not Was owing qualify does not as the exercise of Although do not adopt we ordinary diligence; something more is re- in controlling Sloan standard as in this But, quired. negotiations do consti- stance, applicable, extent is it is ordinary diligence, tute the alternative is a Sloan, distinguishable. voluntariness This position lawsuit. extreme we given. pay was a The contract deferring unwilling adopt. are ment in signed freely that case was any opin- GE Tabak have not cited before any services were rendered or mon (1) ion in which a court held that one who case, however, ey paid. In this voluntari negotiate suing chose before failed to given. ness is not a left When are (2) ordinary diligence, use employer inability with an to an employer exempt held should lose their them, they voluntarily. collect left status. Suit should not be the alter- Davidson, 41 S.W. at 825. Another an employee preserve available to native has held: wages. status of and Ta- purpose provi- the constitutional position many ignores bak’s authori- sion, to exempt wage until it is recognize ties-including courts-that is in possession wage- and of the of negotiations value and other forms of earner, that, if provided he is to unable See, dispute e.g., alternative resolutions. due, exemption collect same when the pRAC. (“It § 154.002 is Tex. Civ. &Rem.Code then continues to such time can when he of policy encourage this state to the ordinary collect same the exercise of ”); of .... peaceable disputes resolution id. diligence. implementing § burden of (placing 154.003 Emerson-Brantingham Implement Lee v. courts); policy Lacy on the L.H. Co. v. 283, 222 (Tex.Civ.App.-Dallas (Tex. Lubbock, 348, S.W. 284 City 559 352 S.W.2d of writ). 1920, Here, 1977) no at the end of his (holding policy a of encouraging employment, payment Gollin demanded agreements preferable arbitration is in or sum, in a immediately lump would ICO congestion); der to alleviate Hansen court not acquiesce. negotiations, Sullivan, After 467, Gollin (Tex.App. v. 886 469 S.W.2d agreed 1994, orig. proceeding) [1st Houston DistJ a period. Clearly, made over six month (citing section Practice 154.002 Civil inability to collect the entire sum was general and Remedies Code Texas’s choosing. not of Gollin’s own It invol- resolu policy favoring peaceable dispute tion). untary.

709 Cain, 861, (Tex.1991); v. Thus, Cain 746 S.W.2d purposes maintaining wages, refuse to hold writ de (Tex.App.-El status we Paso 862-63 Commerce, employee negotiates that an who nied); v. Am. Bank Salem wages held employer payment to secure Paso (Tex.App.-El 948-49 717 S.W.2d by employer has not exercised ordi- Bradshaw, writ); v. 105 Smith nary diligence. And we hold that an em- 1937) (Tex.App.-Dallas money ployee voluntarily does not leave (1937); 180, 108 S.W.2d 200 aff'd, 130 Tex. employer employee with an when the ne- Young, 292 S.W. Sutherland sues, gotiates, than rather force writ). 1927, no Con (Tex.Civ.App.-Waco employer pay owed. merely because ICO trol is not established Payment Right Not Is the contract to Gollin Suffi- was bound Prong earlier, Meet cient To Control we As noted the severance funds. dispute as legitimate had a Gollin assuming that Still Sloan funds to be one paid to how the were —in applicable, turn to the standard is we now lump sum over time. Gollin resorted to Appellant element —control. asks second negotiations dispute. to resolve the language us to construe in Sloan to mean time money fact that he received the over right payment3 that a contractual is lump payment rather than in one de —his control destroy exemption. sufficient payment form of sired —shows Again, un position GE and Tabak’s not exercise control over funds. supported by precedent the case law. No simple right noted, holds that a con already As we have the funds right of control de stitutes sufficient to voluntarily, and since Gollin left stroy wages exemption. funds, did not exercise control over the area, leading exemp in this cases exemption, did not lose destroyed only tion been held when has trial did not abuse its discretion employee employer has treated his We overrule GE by dissolving writ. bank-accruing drawing funds and them and Tabak’s first issue. See, Davidson, out only e.g., as needed. Bell, 825; at 11 S.W. S.W. at Attorney’s II. Fees Reversed here, Clearly that was not the case when availability attorney’s time, to be over ques particular under is a fees statute intervals, not as a matter of convenience of law for the court. Holland v. Wal- tion himself, but because it was the Inc., Stores, Mart

way him. agree ICO would Besides 1999). of law questions review de We presented the situation in Bell and David Needham, Transp. Dep’t novo. Tex. son, exemption courts have said the (Tex.2002). 314, 318 “An award 82 S.W.3d destroyed when there has been “re supplied by attorney’s may of fees not be See, wages. e.g., of ceipt” “possession” or provided by implication but must be 44, Ayre, Brink v. 855 S.W.2d 45 ques express terms of the statute 1993, writ); App.-Houston [14th Dist.] Branch, City First Bank-Farmer’s tion.” 777 151 Caulley Caulley, v. S.W.2d (Tex. Guex, v. 30 1989), Texas 677 S.W.2d (Tex.App.-Houston [14th Dist.] aff'd 1984). the Texas Rules of part, 795 Rule 677 of part, rev’d in 806 S.W.2d his say guage, non-renewal of con- "right payment” we we do not because 3. When tract, a immediately. was entitled receive sever- imply that the was due Gollin package. simply We that under the contract lan- ance mean 710 fees,

Civil governs ney’s Procedure cost allocation in a than it provides more for a garnishment proceeding. It states: Therefore, garnishor’s recovery of fees.

Where garnishee discharged upon may supply authority since we not answer, of the proceeding, costs attorney’s by award implication, fees we including compensation a reasonable to hold that court authority the trial had no garnishee, against be taxed shall under attorney’s Rule 677 to award fees to plaintiff; where the answer of gar- Gollin. See id. nishee has not been controverted and argues the alternative that the thereon, garnishee is held such costs award attorney’s fees to him proper shall be against taxed defendant and 664a, under Rule that provides since rule included in provided the execution for in “may that a court make all such orders ... section; the answer where is con- However, justice may require.” as stat- tested, the abide costs shall the issue of above, long ed it has been the rule such contest. contract, Texas that provided by unless Tex.R. Civ. P. The term 677. “costs” in attorney’s an award of fees pro- must be repeatedly this rule has been interpreted express vided for terms of the as including attorney’s E.g., fees. Rowley Guex, question. statute in 677 S.W.2d at Bank, Lake Area Nat’l S.W.2d 30. A a stating rule “make 721 (Tex.App.-Houston [1st Dist.] “justice requires” orders” as falls well denied); pet. Moody Nat’l Bank v. Rieb short of specificity required support schlager, 946 S.W.2d 525 (Tex.App. See, attorney’s award of e.g., fees. denied); Houston [14th Dist.] Holland, at 95-96 that a Am., Henry v. N. Ins. Co. recovery statute providing for of “reason- 366, 369 (Tex.App.-Houston [14th Dist.] able damages” specific enough writ). 1994, no fees). attorney’s include the accrual of We to Rowley Gollin cites for the issue, appellants’ therefore sustain second proposition garnishee’s a when an and reverse portion the trial court’s contested, swer is should be costs awarded judgment attorney’s awarding fees to Gol- prevails contest, whomever in the lin. whether garnishee garnishor. Rowley, 976 722. S.W.2d at To the extent III. Findings No of Fact or Conclu- here,4 Rule applies this court is bound Necessary sions of Law Were by Henry Co. Insurance North Amer ica. GE and Tabak’s third See 879 S.W.2d issue Henry, this court contends that trial court only gave harmfully held that Rule garnishee right attorney’s to recover findings erred in filing of fact and fees, nothing in the rule a gar- allows conclusions of provides law. Rule 296 attorney’s nishor to recover fees from a any case in the district “[i]n tried or coun debtor. Id. ty jury, any party may court without a request state in writing court to

This exactly Henry, case is like except findings of fact and conclusions of law.” here it is the who is seeking debtor attor- ney’s gives Civ. P. Rule 296 party fees under 677. The rule Rule does Tex.R. provide right for a to recover fact findings debtor attor- and conclusions Here, 4. apply Rule 677 in not this case at all. Tex.R. Civ. P. 677. the court dissolved debtor, By plain language, applies gar- it where a the writ based a motion the on not answer, discharged nishee is his based on held on on the resolution of a contest as answer, garnishee’s or his answer is contested. See answer. attorney’s of court, for the award except on the a conventional trial of law after IKB Indus. Gollin, is portion the court. of the order merits before which fees Corp., v. Pro-Line (Nigeria) Ltd. reversed. (Tex.1997). all other FROST, J., concurring. cases, and of findings fact conclusions not entitled proper, party law are but a FROST, Justice, KEM THOMPSON Id. A to them. case is “tried” when concurring. Puri evidentiary hearing. an court holds in the correct result The reaches Mansukhani, 701, 708 v. 973 S.W.2d err trial court did not concluding that the 1998, no App.-Houston pet.) Dist.] [14th dissolving garnishment, writ (citing Besing Moffitt, 882 S.W.2d reasoning beyond what majority’s goes writ)). 1994, no (Tex.App.-Amarillo 81-82 the narrow issue case, evidentiary necessary resolve In this there was no no “trial on the hearing, and therefore court. before this such, there could have been merits.” As Background fact, findings and Procedural no and conclusions of Factual only advisory, would have and law been 21, 2001, Timo- appellee Effective June IKB were, therefore, unnecessary. See ICO, thy appellee and Inc. entered Gollin Indus., 938 S.W.2d at 442. employment agreement under into an employed as its Chief which ICO findings if of fact con Even (hereinafter “Original Executive Officer necessary, law it clusions of error, change holding Original Agreement not our The Agreement”). because if any, prevented appellants not has after years, an of two had initial term properly presenting case to us. from their continue on a which the was to Inc., Am., Elliott Foods N. gave Gollin Kraft year-to-year basis unless ICO (Tex.App.-Houston 54-55 sixty days the end notice at least before controlling pet.). [14th Dist.] that it did intend two-year period is whether the issue circumstances of Agreement. If Original to renew the ICO particular require appellant case would Original Agree- notice and gave this guess at the trial reasons court’s renewed, then Gollin would ment were Here, decision. Id. and Tabak entitled to severance benefit receive that the court knew based its decision salary of his annual at the in the amount wages exemption the current because Original of his employment. end argument set forth Gollin’s when this Agreement specify does not to' motion dissolve the writ. The trial exactly how it amount would be specifically court’s that it dis order stated paid. would be it solved because gave requisite Gollin the notice Thus, the motion had merit. found Original intend to renew set out the motion was the rea reason expiration of the initial Agreement after judgment. trial son for the court’s We time, two-year At the Gollin’s period.1 third issue. appellant’s overrule therefore, $247,500; salary annual Conclusion required to Gollin this ICO was time after the end of the amount some Having and Tabak’s overruled GE issues 20, 2003. Howev- two-year period on June their second one three sustained er, issue, despite having given sixty-day trial we affirm the order Supplemental Agreement. This fact is reflected (hereinafter Original notice Agreement, under the ICO severance would be paid “Fi- thought and Gollin they might still be Agreement”). nal Agree- Under Final able to to a new agreement come under ment, agreed $82,500 ICO pay to Gollin which Gollinwould continue as Chief Exec- upon receipt of signed agreement fol- Nonetheless, utive Officer. expira- as the by monthly lowed six installments of tion of employment Gollin’s under $27,500, 15, beginning August on 2003. Original Agreement approached, par- Although ICO made the first ties still negotiating to wished $82,500,before the next payment came due 20, beyond continue negotiating June 15, 2003, August on Hoard Gainer Indus- end, 2003, To 19, this effective June Co., Ltd., Gollin, try creditor served a (herein- parties agreement entered into an (“Hoard garnishment writ of on ICO Gain- after “Supplemental Agreement”) extend- Action”). er Due to the Hoard Gainer ing expiration Original date of the Action, payments ICO made no further to 15, 2003, Agreement July to to allow time Gollin. The writ of garnishment in the 14, 2003, negotiation. more July On Gainer eventually Hoard Action was dis- parties amended Supplemental any without payment having solved been Agreement change all references by made ICO and without determina- “July 15, 2003,” “August po- 2003” tion as whether payments the severance tentially extending the term of Gollin’s em- garnishment. are from See Hoard ployment through August 2003. Under Gollin, Gainer Indus. Ltd. No. 01- the Supplemental Agreement amended, 03-01320-CV, at *1-2 WL notwithstanding anything contrary to the (Tex.App.-Houston July [1st Dist.] in the Original Agreement, in the event denied). 2005, pet. Before the Hoard that Gollin terminated his employment Action completely resolved, Gainer ICO on August or before however, appellant Electric Capi- General it would “owe sever- [Gollin] Corporation tal garnish- its writ of served $247,500.” ance pay equal to Again, this ment on ICO in this case. Due to the agreement specified the amount but not pendency action, of this ICO has not paid the timing payment. $165,000 remaining Gollin. 17, 2003, July Effective resigned Gollin employment, therefore, under the Analysis amended Supplemental Agreement, majority correctly determines that $247,500 had point Gollin at some payments the severance owed ICO to time, but parties explicitly had not “current for' agreed as to when this amount service” under the Texas Constitution and due. Gollin asserted that the entire applicable Texas The majority statutes.2 amount was on his day employ- last then turns to an argument alternative ment, whereas ICO wanted this by General Capital made Electric Corpo- amount in one-year installments over the counsel, garnishment ration and its Morris period employ- after the end of Gollin’s (hereinafter collectively ment. “Gener- Contemporaneous end with the Parties”). al 17, 2003, Electric The General July Gollin’s Elec- 18, 2003, that, July effective tric Parties assert ICO and Gollin even the sever- entered into an as to how this ance are “current standard, Although phasize given this court reviews a dissolution of that this case unambiguous under an agreements abuse-of-discre- involves and undis- standard, majority puted tion seems to overem- evidence.

713 however, ICO, appar- service,” they employment; their ex- personal have lost of in day they after empt ently thought status because the it was reasonable 17, 2003, July agreed came due on Rather than monthly installments. twelve amounts. payment of these to defer by ICO agreeing postpone payments This fails based on the factual argument due, parties already past that were this court. record before pay- the future due dates for agreed to only due to be previously ments that were in Gollin testified his affidavit that July a time after termi- Agreement into Final on within reasonable entered 17, 2003, July contemporaneous with the termi nation of employment, following one-day of his not the Therefore, nation if even there were in day. No evidence the record contra employ- of Gollin’s gap between the end testimony.3 Agreeing post dicts this the Final signing ment and the parties’ “wages” they pone the due date before that the Agreement, this would mean fall are due does not under the line past due when payments on which the General Electric Par cases Agreement.4 into the Final Gollin entered rely. ties See Bell Indian Live-Stock argue on Electric Parties General (Tex.1889) (stating 11 S.W. 345 $165,000 if appeal that even ICO owes as “cur wages exempt that that had been initially as current Gollin was no wages rent service” were it wages, exemption lost this severance longer exempt wages “when the became agreed to payment had when Gollin due”). Furthermore, presuming even past allegedly was schedule while the severance argument for the that Gollin did sake above, argu- this due. As discussed past into Agreement not enter the Final until ment because there is no evidence fails 18, 2003, July employ after the end of his past due the record that the severance was before, day analysis ment the does payment sched- when Gollin change. parties not speci Because Therefore, ule.5 the trial court did not err $247,500, a fy payment a time for of the argument, rejecting regardless for performance reasonable time of this correctly Douglass whether Sloan v. states obligation implied part became an legal as to how to standard determine See, agreement. parties’ e.g., Oil Gulf exemption is lost. See 713 when this Reid, Corp. v. 337 Tex. S.W.2d (Tex.App.-Fort Worth (1960) (stating that no time is “[w]here n.r.e.) “[v]ol- writ refs performance any phase fixed for of a one’s untarily leaving employer contract, necessarily imply law will to be considered one element it to be performed within reason the current time”). wages qualify if deciding able indicates that record exemption ... other cases discuss wage reasonable time to Gollin asserted being end an addi- pay this amount was all at once control over as- Agreement it is 5.The Electric Parties have not 3. The Final states that effec- General 18, 2003, July does state when tive past that the severance serted parties signed it. longer exempt has because ICO past years withheld for several If this court had address whether Gollin having Agreement dates the Final after Agreement, voluntarily entered into the Final gar- writs with two different been served contrary majority’s would be result Therefore, ad- this court need not nishment. analysis because there is no evidence in the argument, which would lack merit dress this support the conclusion that Gollin record had raised even the General Electric Parties involuntarily. into this entered pp. it. See ante at 708-09. considered”); tional element to be also see DILSTON HOUSE Logeman

Davidson F.H. Chair CONDOMINIUM ASSOCIATION, Appellant (Tex.Civ.App.-Beaumont S.W. writ) legal standard simi- Sloan). lar to that used Although WHITE, Appellee. Dianne judgments appeal by rendered on correct, Sloan and Davidson were courts No. 14-05-00960-CV. clear legal standard used Texas, Appeals Court reaching judgments proper. these (14th Dist.). Houston legal This court recites the stan- Sloan as if it the applicable dard law6 and June 2007. analyzes the instant “to case the extent Sloan legal

[the is applica- standard] binding precedent

ble....”7 Sloan is not court, unnecessary

in this and it is

analyze the Sloan factors voluntariness dispose

and control to of this case. The

better course would be to conclude

the severance amount that ICO owes Gol-

lin constitutes exempt still personal services because there is no

evidence to support the General Electric

Parties’ assertion the severance

past pay- due when Gollin

ment schedule.

Conclusion correctly court determines that the by owed ICO to Gollin as “current

service” under the Texas Constitution

applicable cor- Texas statutes. rejects

rectly the General Electric Parties’

argument exemption. that Gollin lost this

However, reject the court should ar-

gument undisputed based on the evidence unambiguous contracts our record than analysis

rather on the of the Sloan

factors used the majority. p. p. ante at 707. ante 7. See

Case Details

Case Name: General Electric Capital Corp. v. ICO, Inc.

Court Name: Court of Appeals of Texas

Date Published: Jun 12, 2007

Citation: 230 S.W.3d 702

Docket Number: 14-05-01095-CV

Court Abbreviation: Tex. App.