Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gore v. Pacific Western Equipment Finance

Court of Appeals of Texas, Fourteenth District

August 22, 2019

WRIGHT W. GORE, JR., Appellant
v.
PACIFIC WESTERN EQUIPMENT FINANCE, A DIVISION OF PACIFIC WESTERN BANK F/K/A MARQUETTE EQUIPMENT FINANCE, LLC, Appellee

          On Appeal from the 412th District Court Brazoria County, Texas Trial Court Cause Nos. 77937-CV, 93938-CV

          Panel consists of Justices Wise, Jewell, and Hassan

          MEMORANDUM OPI NION

          Meagan Hassan Justice.

         Appellee Pacific Western Equipment Finance, a division of Pacific Western Bank f/k/a Marquette Equipment Finance, LLC ("Pacific") filed (1) an application for writ of garnishment and (2) an application for turnover and appointment of receiver, seeking to satisfy an outstanding final judgment rendered in a separate suit. The trial court granted Pacific's applications and appellant Wright W. Gore, Jr. appealed. For the reasons below, we affirm.

         Background

         This dispute traces its beginnings to a 2011 master lease agreement signed by lessor Pacific and co-lessees Southern Tri-Star Markets, Ltd. and Southern Tri-Star Markets, II, Ltd. (collectively, "Southern Tri-Star"). Under the terms of the master lease agreement, Southern Tri-Star agreed to remit monthly payments to Pacific in exchange for the use of certain car wash equipment. Gore signed a separate agreement personally guaranteeing Southern Tri-Star's obligations.

         Southern Tri-Star breached the master lease agreement and Gore failed to satisfy its obligations. Pacific sued Southern Tri-Star, Gore, and another guarantor, and asserted claims predicated on the master lease agreement and the guaranty agreement (the "Lease Lawsuit"). The trial court signed a final judgment in the Lease Lawsuit on May 19, 2015 and awarded Pacific $268, 797 in damages as well as attorney's fees, pre- and post-judgment interest, and court costs. Gore did not appeal the Lease Lawsuit's final judgment.

         Garnishment Proceedings

         In October 2017, Pacific filed an application for a post-judgment writ of garnishment against Lynn Klement, the liquidating manager for Western Seafood Company and Western Shellfish Company (collectively, the "Seafood Companies").[1] Gore and his two brothers owned the Seafood Companies and, under the terms of a separate settlement agreement, Klement was appointed to wind down and liquidate the Companies' assets. The settlement agreement states that, after satisfying the Seafood Companies' outstanding liabilities, Klement would distribute the remaining proceeds to Gore and his brothers (with Gore receiving a 38% share and his brothers collectively receiving a 62% share). In its application for a writ of garnishment, Pacific sought to collect Gore's share of these asset distributions.

         The writ was served on Klement and Klement filed an answer with the trial court stating that he was not indebted to Gore (1) when the writ of garnishment was served on him and (2) when he filed his answer. Pacific filed a response to Klement's answer and the trial court set the writ of garnishment for a hearing.

         The day before the garnishment hearing, Gore filed a motion to dismiss Pacific's application based on a lack of jurisdiction, asserting the master lease and guaranty agreements' forum selection clauses required Pacific to bring the action in a Utah court. During the garnishment hearing, Gore filed a separate motion to dissolve the writ of garnishment contending that (1) Pacific failed to properly serve Gore; (2) collateral was available to satisfy Gore's debt; and (3) Klement did not possess any property belonging to Gore that would be subject to garnishment.

         After the garnishment hearing, the trial court denied Gore's motions and signed a final judgment on March 5, 2018. The trial court's final judgment ordered Pacific to recover $89, 960 from Klement in his role as liquidating manager of the Seafood Companies to satisfy the 2015 final judgment in the Lease Lawsuit. Gore timely appealed.

         Turnover Proceedings

         In addition to the writ of garnishment, Pacific also filed an application for post-judgment turnover and appointment of receiver which sought the trial court's assistance in satisfying the 2015 final judgment in the Lease Lawsuit. Pacific's turnover application requested (1) turnover of Gore's non-exempt assets; (2) appointment of a receiver for Gore's interest in the Seafood Companies; and (3) attorney's fees.[2] The trial court scheduled a hearing on Pacific's turnover application.

         The morning of the hearing, Gore filed a plea to the jurisdiction asserting the trial court lacked subject matter jurisdiction because the master lease and guaranty agreements' forum selection clauses required Pacific to bring the action in a Utah court.

         The trial court denied Gore's plea to the jurisdiction and signed a separate turnover order on March 5, 2018 ordering (1) Klement to deliver Gore's rights to receive future distributions from the Seafood Companies' liquidation; (2) Gore to deliver all stock certificates he possessed in the Seafood Companies and an affiliated entity, Southern Restaurants, Inc. to the Brazoria County Sheriff for execution sale; and (3) Pacific to recover from Gore $8, 000 in attorney's fees. Gore timely appealed.

         Analysis

         In two briefs, Gore raises eight issues challenging the garnishment proceeding's final judgment and the turnover order. Gore asserts the following challenges with respect to the garnishment proceeding:

1. Pacific failed to effectuate proper service;
2. the trial court erred by ordering Pacific to recover $89, 960 from Klement in his role as the Seafood Companies' liquidating manager; and
3. Pacific failed to properly dispose of the master lease agreement's collateral in a commercially-reasonable manner.

         Gore's remaining issues contend the master lease and guaranty agreements' forum selection clauses deprived the trial court of jurisdiction in both the garnishment and turnover actions. Gore also asserts the agreements' forum selection clauses required the application of Utah law in the turnover proceeding.

         We address these issues below.

         I. Pacific Effected Proper Service in the Garnishment Proceeding.

         Pacific served notice of the writ of garnishment by certified mail addressed to Gore's residence, return receipt requested, and Gore's wife signed the certified mail card. Gore argues this does not constitute proper service because the applicable rule "does not allow service by certified mail on the wife of a judgment debtor."

         Gore raised this issue in his motion to dissolve the writ of garnishment. At the garnishment hearing, Pacific offered into evidence (1) the original green card that accompanied the notice of the writ of garnishment and (2) a copy of the documents served with the notice (including the writ and Pacific's application). The green card was addressed to Gore, was signed by Gore's wife, Beth Gore, and was dated November 6, 2017. The notice includes a "certificate of service" stating that it was served on Gore via certified mail, return receipt requested. After this evidence was admitted, the trial court overruled Gore's challenge.

         We review a trial court's ruling on a motion to dissolve a writ of garnishment for an abuse of discretion. Jacobs v. Jacobs, 448 S.W.3d 626, 631 (Tex. App.-Houston [14th Dist.] 2014, no pet.). A trial court abuses its discretion if it acts without reference to guiding rules and principles or in an arbitrary or unreasonable manner. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam). The trial court does not abuse its discretion if there is some evidence of a substantive and probative character to support its decision. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002). Where, as here, no findings of fact or conclusions of law were requested or filed, we determine ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.