Affirmed in Part, Reversed and Rendered in Part, and Majority and Concurring Opinions filed June 12, 2007.
In The
Fourteenth Court of Appeals
____________
NO. 14-05-01095-CV
____________
GENERAL ELECTRIC CAPITAL CORPORATION and MORRIS TABAK, Appellants
V.
ICO, INC., TIMOTHY J. GOLLIN, and WEYCER KAPLAN PULASKI & ZUBER, P.C., Appellees
On Appeal from the 165th District Court
Harris County, Texas
Trial Court Cause No. 2005-36250A
C O N C U R R I N G O P I N I O N
The court reaches the correct result in concluding that the trial court did not err in dissolving the writ of garnishment, but the majority=s reasoning goes beyond what is necessary to resolve the narrow issue before this court.
Factual and Procedural Background
Effective June 21, 2001, appellee Timothy Gollin and appellee ICO, Inc. entered into an employment agreement under which ICO employed Gollin as its Chief Executive Officer (hereinafter AOriginal Agreement@). The Original Agreement had an initial term of two years, after which the agreement was to continue on a year-to-year basis unless ICO gave Gollin notice at least sixty days before the end of the two-year period that it did not intend to renew the Original Agreement. If ICO gave this notice and if the Original Agreement were not renewed, then Gollin would be entitled to receive a severance benefit in the amount of his annual salary at the end of his employment. The Original Agreement does not specify when this amount would be due or exactly how it would be paid.
ICO gave Gollin the requisite notice that it did not intend to renew the Original Agreement after expiration of the initial two-year period.[1] At the time, Gollin=s annual salary was $247,500; therefore, ICO was required to pay Gollin this amount some time after the end of the two-year period on June 20, 2003. However, despite ICO having given the sixty-day notice under the Original Agreement, ICO and Gollin still thought that they might be able to come to a new agreement under which Gollin would continue as Chief Executive Officer. Nonetheless, as the expiration of Gollin=s employment under the Original Agreement approached, the parties still were negotiating and wished to continue negotiating beyond June 20, 2003. To this end, effective June 19, 2003, the parties entered into an agreement (hereinafter ASupplemental Agreement@) extending the expiration date of the Original Agreement to July 15, 2003, to allow time for more negotiation. On July 14, 2003, the parties amended the Supplemental Agreement to change all references to AJuly 15, 2003@ to AAugust 15, 2003,@ potentially extending the term of Gollin=s employment through August 15, 2003. Under the Supplemental Agreement as amended, notwithstanding anything to the contrary in the Original Agreement, in the event that Gollin terminated his employment with ICO on or before August 15, 2003, ICO agreed it would Aowe [Gollin] severance pay equal to $247,500.@ Again, this agreement specified the amount but not the timing of the payment.
Effective July 17, 2003, Gollin resigned his employment, and therefore, under the amended Supplemental Agreement, ICO had to pay Gollin $247,500 at some point in time, but the parties had not explicitly agreed as to when this amount would be due. Gollin asserted that the entire amount was due on his last day of employment, whereas ICO wanted to pay this amount in installments over the one-year period after the end of Gollin=s employment. Contemporaneous with the end of Gollin=s employment on July 17, 2003, but effective July 18, 2003, ICO and Gollin entered into an agreement as to how this severance would be paid (hereinafter AFinal Agreement@). Under the Final Agreement, ICO agreed to pay Gollin $82,500 upon receipt of the signed agreement followed by six monthly installments of $27,500, beginning on August 15, 2003.
Although ICO made the first payment of $82,500, before the next payment came due on August 15, 2003, Hoard Gainer Industry Co., Ltd., a creditor of Gollin, served a writ of garnishment on ICO (AHoard Gainer Action@). Due to the Hoard Gainer Action, ICO made no further payments to Gollin. The writ of garnishment in the Hoard Gainer Action was eventually dissolved without any payment having been made by ICO and without any determination as to whether the severance payments are exempt from garnishment. See Hoard Gainer Indus. Co., Ltd. v. Gollin, No. 01-03-01320-CV, 2005 WL 1646116, at *1B2 (Tex. App.CHouston [1st Dist.] July 14, 2005, pet. denied). Before the Hoard Gainer Action was completely resolved, however, appellant General Electric Capital Corporation served its writ of garnishment on ICO in this case. Due to the pendency of this action, ICO has not paid the remaining $165,000 to Gollin.
Analysis
The majority correctly determines that the severance payments owed by ICO to Gollin are Acurrent wages for personal service@ under the Texas Constitution and applicable Texas statutes.[2] The majority then turns to an alternative argument made by General Electric Capital Corporation and its garnishment counsel, Morris Tabak (hereinafter collectively the AGeneral Electric Parties@). The General Electric Parties assert that, even if the severance payments are Acurrent wages for personal service,@ they have lost their exempt status because the day after they came due on July 17, 2003, Gollin agreed to defer the payment of these amounts. This argument fails based on the factual record before this court.
Gollin testified in his affidavit that he entered into the Final Agreement on July 17, 2003, contemporaneous with the termination of his employment, not the following day. No evidence in the record contradicts this testimony.[3] Agreeing to postpone the due date for Awages@ before they are due does not fall under the line of cases on which the General Electric Parties rely. See Bell v. Indian Live-Stock Co., 11 S.W. 344, 345 (Tex. 1889) (stating that wages that had been exempt as Acurrent wages for personal service@ were no longer exempt Awhen the wages became past due@). Furthermore, even presuming for the sake of argument that Gollin did not enter into the Final Agreement until July 18, 2003, after the end of his employment the day before, the analysis does not change. Because the parties did not specify a time for payment of the $247,500, a reasonable time for performance of this obligation became an implied part of the parties= agreement. See, e.g., Gulf Oil Corp. v. Reid, 337 S.W.2d 267, 275 (Tex. 1960) (stating that A[w]here no time is fixed for performance of any phase of a contract, the law necessarily will imply that it is to be performed within a reasonable time@). The record indicates that Gollin asserted that a reasonable time to pay this amount was all at once at the end of his employment; ICO, however, apparently thought it was reasonable to pay in twelve monthly installments. Rather than agreeing to postpone payments by ICO that already were past due, the parties agreed to the future due dates for payments that previously were only due to be paid within a reasonable time after termination of employment on July 17, 2003. Therefore, even if there were a one-day gap between the end of Gollin=s employment and the parties= signing of the Final Agreement, this would not mean that the severance payments were past due when Gollin entered into the Final Agreement.[4]
The General Electric Parties argue on appeal that even if the $165,000 ICO owes Gollin was initially exempt as current wages, this severance lost any exemption it had when Gollin agreed to the payment schedule while the severance allegedly was past due. As discussed above, this argument fails because there is no evidence in the record that the severance was past due when Gollin agreed to the payment schedule.[5] Therefore, the trial court did not err in rejecting this argument, regardless of whether Sloan v. Douglass correctly states the legal standard as to how to determine when this exemption is lost. See 713 S.W.2d 436, 440 (Tex. App.CFort Worth 1986, writ ref=s n.r.e.) (stating that A[v]oluntarily leaving wages with one=s employer is only one element to be considered in deciding if wages qualify for the current wage exemption . . . other cases discuss control over the wages as being an additional element to be considered@); see also Davidson v. F.H. Logeman Chair Co., 41 S.W. 824, 825 (Tex. Civ. App.CBeaumont 1897, no writ) (stating legal standard similar to that used in Sloan). Although the judgments rendered on appeal by the Sloan and Davidson courts were correct, it is not clear that the legal standard used in reaching these judgments is proper.
This court recites the Sloan legal standard as if it were the applicable law[6] and analyzes the instant case Ato the extent [the Sloan legal standard] is applicable . . . .@[7] Sloan is not binding precedent in this court, and it is unnecessary to analyze the Sloan factors of voluntariness and control to dispose of this case. The better course would be to conclude that the severance amount that ICO owes Gollin still constitutes exempt current wages for personal services because there is no evidence to support the General Electric Parties= assertion that the severance was past due when Gollin agreed to the payment schedule.
Conclusion
The court correctly determines that the severance payments owed by ICO to Gollin are exempt as Acurrent wages for personal service@ under the Texas Constitution and applicable Texas statutes. The court correctly rejects the General Electric Parties= argument that Gollin lost this exemption. However, the court should reject this argument based on the undisputed evidence and unambiguous contracts in our record rather than on the analysis of the Sloan factors used by the majority.
/s/ Kem Thompson Frost
Justice
Judgment rendered and Majority and Concurring Opinions filed June 12, 2007.
Panel consists of Justices Fowler, Edelman, and Frost. (Fowler, J., majority).
[1] This fact is reflected in the Supplemental Agreement.
[2] Although this court reviews a dissolution of garnishment writ under an abuse-of-discretion standard, the majority seems to overemphasize this standard, given that this case involves unambiguous agreements and undisputed evidence.
[3] The Final Agreement states that it is effective July 18, 2003, but it does not state when the parties signed it.
[4] If this court had to address whether Gollin voluntarily entered into the Final Agreement, the result would be contrary to the majority=s analysis because there is no evidence in the record to support the conclusion that Gollin entered into this agreement involuntarily. See ante at pp. 7B9.
[5] The General Electric Parties have not asserted that the severance payments are past due and no longer exempt because ICO has withheld payment for several years past the dates in the Final Agreement after having been served with two different writs of garnishment. Therefore, this court need not address this argument, which would lack merit even if the General Electric Parties had raised it.
[6] See ante at p 6.
[7] See ante at p. 7.