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Vogler v. Pacific Life Insurance Co.

Court of Appeals of Texas, First District

July 13, 2017

CHRISTOPHER BRIAN VOGLER AND RACHAEL DAWN VOGLER, Appellants
v.
PACIFIC LIFE INSURANCE COMPANY, Appellee

         On Appeal from the 164th District Court Harris County, Texas Trial Court Case No. 2014-03635A

          Panel consists of Chief Justice Radack and Justices Brown and Lloyd.

          MEMORANDUM OPINION

          Sherry Radack Chief Justice

         After their bankruptcy proceeding concluded, appellants Christopher and Rachael Vogler filed suit against appellee Pacific Life Insurance Company, alleging that Pacific Life breached its annuity contract with them by allowing a portion of their annuity to be wrongfully garnished by a creditor, Icon Bank. Pacific Life moved for summary judgment, alleging, among other defenses, that the Voglers had no standing to pursue their breach-of-contract claim against them because they did not disclose its existence during the bankruptcy proceedings. In two issues on appeal, the Voglers contend that the trial court erred in granting Pacific Life's motion for summary judgment and in denying their motion for new trial. We vacate and dismiss.

         BACKGROUND

         Rachael Vogler purchases an annuity from Pacific Life

         On August 1, 2006, Rachael Vogler bought an $800, 000 annuity from Pacific Life. The annuity contract provides that it is "exempt from the claims of creditors to the extent permitted by law."

         Icon Bank garnishes the annuity

         On March 23, 2011, Icon Bank obtained a default judgment against Rachael Vogler for the default of a promissory note. On April 7, 2011, Icon Bank filed an Application for Writ of Garnishment against Pacific Life, as garnishee, for the sum of $244, 251.34 plus interest. As a result of the garnishment, Icon Bank obtained said amount from Rachael Vogler's annuity contract at Pacific Life in late May 2011.[1]

         The Voglers file Chapter 7 bankruptcy and an adversary proceeding against Icon

         On September 19, 2011, the Voglers filed a Chapter 7 bankruptcy case. On Schedule C, the Voglers claimed that the remaining $300, 468.34 of the Pacific Life Annuity was exempt property. They also claimed an exemption valued at $250, 000 for the "Claim against Icon Bank of Texas, N.A. for return of portion of Pacific Life Insurance Company Variable Annuity wrongfully garnished by creditor." Schedule C did not list any potential lawsuit or claims against Pacific Life.

         As part of their bankruptcy proceeding, the Voglers filed an adversary bankruptcy proceeding against Icon Bank, asserting claims for return of the garnished funds and a state-law claim for wrongful garnishment. Again, no claims of any sort were asserted against Pacific Life in the adversary proceeding. On December 10, 2013, the bankruptcy court denied the Voglers attempt to void the garnishment as a fraudulent transfer under the bankruptcy code, but held that it would be inappropriate to consider their state wrongful garnishment claim[2] and dismissed the adversary proceeding. The remaining Chapter 7 case was closed on November 14, 2012. No disposition was made regarding any potential claims against Pacific Life.

         The Voglers file a breach-of-contract action against Pacific Life

         In 2014, the Voglers filed the present lawsuit against both the garnishor, Icon Bank, and the garnishee, Pacific Life. In their First Amended Petition, they asserted claims against Icon Bank for wrongful garnishment, and against Pacific Life for wrongful garnishment, breach of contract, breach of fiduciary duty, conversion, and conspiracy.[3]

         The trial court grants Pacific Life's motion for summary judgment

         On October 28, 2014, Pacific Life moved for summary judgment, contending that the Voglers: (1) lacked standing because they did not disclose their claims against Pacific Life during their bankruptcy; (2) were judicially estopped from asserting the claims against Pacific Life that were not included in their bankruptcy schedules; and (3) their claims lacked merit as a matter of law. On December 12, 2014, the trial court granted Pacific Life's motion for summary judgment without specifying the grounds for doing so.

         On February 5, 2015, the Voglers filed a motion for reconsideration, which the trial court denied on February 18, 2015.

         The Voglers amend their ...


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