LESLIE WM. ADAMS & ASSOCIATES, Appellant
AMOCO FEDERAL CREDIT UNION, Appellee
Appeal from Civil County Court at Law No. 2 Harris County,
Texas Trial Court Case No. 1100326
consists of Justices Lloyd, Landau, and Countiss.
RUSSELL LLOYD JUSTICE
Leslie Wm. Adams & Associates appeals the trial
court's order granting summary judgment in favor of
appellee AMOCO Federal Credit Union on Adams &
Associates's claims arising from an underlying
garnishment proceeding. Adams & Associates contends that
(1) the trial court's order is not a final judgment, and
(2) the trial court erred in granting summary judgment
because its claims are not barred by (a) the debtor's
discharge in bankruptcy, (b) res judicata, or (c) the
applicable statute of limitations. We affirm.
2014, Adams & Associates sued a former client, Terence
Martinez, to recover legal fees and obtained a judgment
against him for $41, 235.20 in damages and $2, 858.50 in
attorney's fees. On July 2, 2014, Adams & Associates
filed an application for writ of garnishment to reach funds
that Martinez had in his AMOCO accounts. The trial court
granted the application and issued a writ of garnishment.
August 14, 2014, AMOCO, as garnishee, filed its original
answer stating that Martinez had $108, 601.56 in two AMOCO
accounts. Martinez thereafter filed several motions to
dissolve the writ of garnishment, alleging that all of the
funds in his AMOCO accounts were exempt from garnishment
because they came from Department of Veterans Affairs
benefits, disability benefits, and insurance settlement
proceeds. On January 15, 2015, AMOCO filed an amended answer
to the writ of garnishment, stating that it "had
maintained its hold" on the accounts "in the amount
of $46, 741.81," but that it had allowed Martinez to
have access to the excess balance of $60, 699.00, which was
withdrawn by him.
October 12, 2015, the trial court held a bench trial to
determine the amount of exempt and non-exempt funds remaining
in the AMOCO accounts. That same day, the trial court entered
an order for disbursement of garnished funds and release
("garnishment judgment"), in which it determined
that of the $46, 741.81 remaining on deposit with AMOCO, $15,
328.00 constituted nonexempt funds. The court also ordered
AMOCO to pay Adams & Associates $12, 869.64 out of
Martinez's funds. The remainder of the balance of the
nonexempt funds was awarded to AMOCO for attorney's fees.
Adams & Associates appealed.
the garnishment judgment was on appeal before this Court, and
before AMOCO released any funds to Adams & Associates,
Martinez filed a petition for bankruptcy under Chapter 7 of
the Bankruptcy Code. On December 6, 2016, the bankruptcy
court entered a discharge order.
September 7, 2017, this Court issued an opinion holding that
the bankruptcy court's order of discharge, which set
aside the underlying judgment against Martinez in favor of
Adams & Associates, voided the garnishment judgment.
Leslie Wm. Adams & Assocs. v. AMOCO Fed. Credit
Union, 537 S.W.3d 571 (Tex. App.-Houston [1st Dist.]
2017, no pet.). The Court also concluded that "[t]o the
extent that a claim could have been asserted against AMOCO
for improperly releasing funds in violation of the writ, it
has not been properly raised in this appeal because it was
not preserved in the trial court." Id. at 578.
October 23, 2017, Adams & Associates filed the underlying
suit against AMOCO, alleging that it had violated the writ of
garnishment and Texas Civil Practice and Remedies Code
section 63.003, and additionally sought declaratory relief.
Adams & Associates alleged that it had been damaged by
AMOCO's wrongful disbursement of funds to Martinez and
sought to recover the amount of $60, 699.00 disbursed in
violation of the writ. On December 1, 2017, AMOCO filed its
April 30, 2018, AMOCO filed a traditional motion for summary
judgment arguing that it was entitled to judgment as a matter
of law because (1) Adams & Associates's claims were
barred by the two-year statute of limitations applicable to
conversion claims and res judicata, and (2) Adams &
Associates sustained no damages caused by AMOCO's alleged
wrongful release of funds. The next day, AMOCO filed an
amended answer asserting the affirmative defenses of
limitations, laches, waiver, and estoppel.
17, 2018, Adams & Associates filed a first amended
petition asserting additional claims of fraud, fraud by
non-disclosure, and aiding and abetting fraud. On May 18,
2018, it filed a summary judgment response arguing that (1)
its claims were not barred by the statute of limitations for
conversion because it did not assert such a cause of action;
(2) AMOCO did not raise res judicata prior to filing its
motion and therefore waived the defense, and res judicata did
not bar its claims; and (3) AMOCO waived the affirmative
defense of discharge in bankruptcy because it failed to raise
the defense in its pleadings and its claims are not barred.
On May 25, 2018, AMOCO filed its summary judgment reply.
29, 2018, the trial court granted AMOCO's motion for