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Goin v. Crump

Court of Appeals of Texas, Fifth District, Dallas

January 8, 2020

JOHN GOIN, Appellant/Relator
HOPE CRUMP, Appellee/Real Party in Interest

          On Appeal from the 95th District Court Dallas County, Texas Trial Court Cause No. DC-13-03801-D

          Before Justices Whitehill, Partida-Kipness, and Pedersen, III



         This appeal and, alternatively, petition for writ of mandamus arises from the court-ordered turnover of a judgment debtor's malpractice, Deceptive Trade Practices Act (DTPA), and Insurance Code claims to a receiver who is authorized to settle the claims and to pay the settlement proceeds to the judgment creditor in satisfaction of the underlying judgment. We conclude that the turnover of each of the foregoing claims, with the exception of one claim asserted under the Insurance Code, is void because it is against public policy. We reverse the subject order in part, conditionally grant the petition for writ of mandamus in part, and remand the case for further proceedings, as explained below.



         Appellant/relator John Goin was employed by MICA Corporation in January 2012. On January 23, he was assigned to work out of town on a construction project in Tyler, Texas. MICA provided Goin with a hotel room and a 2002 Ford 450 pickup truck for the project. After work on the evening of January 25, Goin drove MICA's truck to a local club where he met appellee/real party in interest Hope Crump. The next evening, Goin drove the truck to Crump's home for dinner, and they consumed alcoholic beverages. Goin's foreman telephoned Goin during the dinner and told him to drive the truck back to the hotel. Crump rode with Goin on the return trip, and the two were involved in a rollover accident. Crump was ejected from the truck and suffered injuries that rendered her a paraplegic.

         A. The Civil and Criminal Cases against Goin

         In March 2012, Crump sued Goin and MICA in the 369th Judicial District Court of Anderson County. MICA is the named insured in two commercial policies at issue here-an auto policy with Travelers Property Casualty Company of America (Travelers) and an umbrella policy with Great American Insurance Company (Great American). The Travelers policy provides that "anyone else[, ] while using with your permission a covered 'auto' you own, hire[, ] or borrow," is an "insured." (Emphasis added). Travelers retained attorney Michael Dunn and his firm, Smead, Anderson, & Dunn (SAD), to defend Goin in the lawsuit, though Travelers also sent Goin a letter reserving its right to deny coverage "if it [is] determined that Goin's use of the MICA vehicle at the time of the accident was without MICA's permission."

         In addition to Crump's suit, the State charged Goin with the criminal offense of intoxication assault[1] related to his role in the accident. Dunn and Travelers attended Goin's criminal trial for the purpose of assisting in the defense of the civil case against him. However, Goin claims that Dunn and Travelers, in reality, worked to develop testimony favorable for Travelers-i.e., that, at the time of the accident, Goin was using MICA's truck without its permission. Goin also contends that Dunn secretly collaborated with MICA's outside counsel and provided information to Travelers to assist in its non-coverage defense. At the conclusion of the criminal trial, Goin was convicted and sentenced to twelve years' confinement. Dunn allegedly never communicated with Goin again.[2]

         Crump non-suited her case in January 2013 and filed it again three months later, this time in the 95th Judicial District Court of Dallas County. She named Goin, MICA, and Ford Motor Company as defendants. Crump asserted negligence and gross negligence claims against Goin and respondeat superior, negligent entrustment, and negligent hiring claims, among others, against MICA. Travelers settled the claims against MICA, and Ford obtained a no-evidence summary judgment, which left Goin as the sole remaining defendant. Goin asserts that he was not served with process, [3] nor was he aware at the time that Crump had re-filed her case. He claims that, under this circumstance, Travelers and Dunn decided to abandon his defense by secretly insisting that he make a "new tender" and demand a defense.

         In April 2014, the court issued notices of hearing regarding the pending dismissal of Crump's case for want of prosecution. According to Goin, Crump's trial counsel visited him in prison and advised that he should sign a handwritten pro se answer that Crump's counsel had prepared. Goin claims that he did not understand "any of what it was" but he "just signed it" because "they [were] saying this would help Hope."[4] In addition, Crump's counsel allegedly did not disclose that, if Goin did not sign the answer, it was possible that no judgment would be taken against him.[5] The pro se answer was filed on Goin's behalf, allegedly by Crump's counsel, and the dismissal hearing was cancelled.[6]

         In October 2014, Travelers retained new counsel to represent Goin in the defense of Crump's case. Goin claims that, by then, he had been unrepresented in multiple depositions, including his own, and the discovery deadline, the deadline to designate expert witnesses, and the deadline for dispositive motions had expired. The case was tried in February 2015. The jury awarded $18, 745, 000 to Crump and found Goin sixty percent responsible for the damages. Based on the jury's verdict, the district court rendered judgment for Crump in the amount of $10, 125, 433.96, plus pre-judgment and post-judgment interest. Goin appealed the judgment but later dismissed the appeal. See Goin v. Crump, No. 05-15-00649-CV, 2015 WL 3823918, at *1 (Tex. App.-Dallas June 19, 2015, no pet.) (mem. op.).

         B. Goin's Suit against the Insurers and MICA

         In April 2015, Goin filed suit in the 101st District Court of Dallas County against Travelers, Great American, and MICA. Goin asserted ten causes of action, including claims against Travelers and Great American for purported violations of the DTPA[7] and the Insurance Code.[8] His alleged damages include indemnity for the judgment rendered against him in Crump's case, pre- and post- judgment interest, actual damages, economic damages, mental anguish, disgorgement or forfeiture of fees, statutory treble damages, and exemplary damages.

         C. The Turnover Order

         In June 2015, Crump filed a motion in her lawsuit in the 95th District Court for a turnover of Goin's causes of action asserted in his lawsuit pending in the 101st District Court. At the June 18 hearing on Crump's motion, Goin's counsel confirmed that they did not oppose the turnover order. That same day, the 95th District Court granted Crump's motion and appointed Peter G. Malouf as Receiver.[9] The turnover order gave the Receiver the power to take possession of all of Goin's leviable property, including any causes of action against MICA, Travelers, and Great American. It also required Goin to execute an irrevocable assignment of the foregoing claims to the Receiver[10] and directed that the Receiver pay: (i) to Crump, ninety percent of any gross proceeds received from Goin's causes of action, and (ii) to Goin, "[ten percent] of any proceeds received, net of all costs of receivership incurred as of the date of distribution."[11]

         On the following day, Goin executed the assignment ordered by the court. The assignment covers:

all right, title, and interest in any causes of action and proceeds therefrom that I have or in the future may have against [MICA, Travelers, and Great American]. This assignment includes[, ] but is not limited to[, ] all causes of action now or hereafter asserted in John Goin v. Travelers Property Casualty Company of America, et al., Cause No. DC-15-04399, 101st Judicial District Court, Dallas County, Texas. Receiver shall have the sole authority to settle, compromise, release, or waive the causes of action assigned herein.

         Thereafter, Travelers deposited into the court's registry $303, 829.37 of remaining indemnity limits under its policy, in partial satisfaction of Crump's judgment.

         Goin represents that, despite the turnover order, he continued to actively pursue his claims.[12] In July 2015, Goin's case was transferred from the 101st to the 95th District Court, which had rendered judgment in Crump's case. In March of the following year, Goin's suit was transferred to the 336th Judicial District Court of Fannin County.[13] Crump and the Receiver then filed petitions in intervention in Goin's suit, and he amended his petition twice. Goin's amendments, among other changes, dropped Great American as a defendant and added a malpractice claim against Dunn and SAD.

         In January 2017, the 95th District Court in Crump's case approved a settlement among Great American, MICA, Crump, and Goin. In that same month, Crump withdrew from the court's registry the remaining indemnity proceeds from Travelers's policy, plus post-judgment interest. Following these events, Goin's remaining claims are his DTPA and Insurance Code claims against Travelers and his legal malpractice claim against Dunn and SAD, each of which is currently pending in Goin's suit in Fannin County. In addition, Crump's and the Receiver's petitions in intervention asserting these same claims remain pending in Goin's suit.

         Dunn and SAD responded to the Receiver's petition in intervention by alleging that the Receiver lacked standing to bring the assigned claims. They also filed a motion for leave to designate Crump's counsel as responsible third parties. See Tex. Civ. Prac. & Rem. Code Ann. § 33.004. Specifically, Dunn and SAD alleged that Crump's counsel agreed to provide legal services to Goin in Crump's lawsuit (while also representing Crump in the same suit), which formed an attorney-client relationship with Goin. Alternatively, Dunn and SAD alleged that, even if no such relationship was established, Crump's counsel "committed negligent misrepresentations directed at . . . Goin in order to coerce Goin into signing a Pro Se Answer that was insufficient, detrimental to Goin's defense, precluded a motion to transfer venue, and prevented the claims against . . . Goin from being dismissed for want of prosecution." The 336th District Court granted Dunn and SAD's motion for leave to designate.

         D. The Motions to Clarify, and to Modify, the Turnover Order

         On December 15, 2017, Crump filed a motion in her case in the 95th District Court to clarify whether the turnover order transferred ownership to the Receiver of all causes of action in Goin's suit, including the claims against Travelers and the malpractice claim that Goin added after the turnover order was signed. Goin filed a competing motion in the 95th District Court to modify the turnover order, arguing that his DTPA, Insurance Code, and legal malpractice claims were not assignable. Goin also sought to modify the order so that it transferred ninety percent of the net proceeds of any judgment rendered in Goin's favor in his lawsuit, rather than assigning the foregoing claims themselves, which Goin contends are unassignable.[14]

         The district court held a hearing on the foregoing motions on February 27, 2018, and signed an order that same day (referred to herein as the clarification order) granting Crump's motion to clarify and denying Goin's motion to modify. The order states that:

[T]he Turnover Order dated June 18, 2015 irrevocably transferred to the Receiver all causes of action and all proceeds from all causes of action now or hereafter asserted in Cause No. CV-16- 42626; John C. Goin v. Travelers Property Casualty Company of America, Great American Insurance Company, Mica Corporation and Michael Dunn, and Smead, Anderson, & Dunn; In the 336th Judicial District Court of Fannin County, Texas.

         Goin filed this "Notice of Appeal/Mandamus" with respect to the court's February 27 order.



         Goin raises three issues. His first issue contends that the district court erred in granting Crump's motion to clarify, and his second argues that the court erred in denying Goin's motion to modify. Goin's third issue asserts that he has no adequate remedy by appeal, thereby necessitating a writ of mandamus. We review a trial court's decision to grant or deny a turnover order for an abuse of discretion. HSM Dev., Inc. v. Barclay Props., Ltd., 392 S.W.3d 749, 751 (Tex. App.- Dallas 2012, no pet.). We conclude that this standard also applies to a decision to grant or deny the clarification or modification of such an order. In addition, to obtain relief by writ of mandamus, a relator must establish that an underlying order is void or a clear abuse of discretion and that no adequate appellate remedy exists. In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding). An abuse of discretion occurs when a trial court's ruling is arbitrary and unreasonable or made without regard for guiding legal principles or supporting evidence. Id.

         A. Timeliness of Appeal/Mandamus

         Crump asserts that Goin's appeal is a misguided attempt to reverse the district court's 2015 turnover order and that this Court lacks jurisdiction to review the order. She also urges that the court's plenary authority to modify the turnover order expired on July 18, 2015, long before Goin requested such a modification. We must determine these threshold questions before considering the merits of Goin's issues.

         1. Appeal

         a. Claims against Travelers

         A turnover order that acts as a mandatory injunction is a final, appealable judgment. Alexander Dubose Jefferson & Townsend LLP v. Chevron Phillips Chem. Co., 540 S.W.3d 577, 582, 586 (Tex. 2018) (per curiam);[15] see also Transcon. Realty Inv'rs, Inc. v. Orix Capital Mkts. LLC, 470 S.W.3d 844, 847 (Tex. App.-Dallas 2015, no pet.) (noting that turnover orders "are final, appealable orders because they are analogous to mandatory injunctions requiring a judgment debtor to turnover property"). As noted previously, the June 2015 turnover order required Goin to assign to the Receiver his interest in any causes of action against MICA, Travelers, and Great American. This order was a final, appealable judgment. See Alexander Dubose, 540 S.W.3d at 582, 586; Transcon. Realty, 470 S.W.3d at 847. However, Goin did not appeal the turnover order; he instead waited until this appeal from the clarification order to raise arguments that he could have raised previously. See Davis v. West, 317 S.W.3d 301, 309 (Tex. App.-Houston [1st Dist.] 2009, no pet.) (noting that turnover orders must be attacked on direct appeal); In re Wiese, 1 S.W.3d 246, 251 (Tex. App.-Corpus Christi-Edinburg 1999, orig. proceeding) (holding that relator failed to directly attack turnover order and court was without jurisdiction to grant habeas relief based upon order that was merely voidable and not void).

         For example, Goin asserts that the turnover of his Insurance Code and DTPA claims is barred by public policy and is therefore void. Goin could have, but he did not, raise this complaint in a direct appeal of the turnover order. Moreover, Goin urges that the court abused its discretion by failing to modify the turnover order to transfer the net proceeds of the foregoing claims rather than the claims themselves. Again, this argument could have been, but was not, raised in a direct appeal of the turnover order.[16] We are without jurisdiction to consider the foregoing arguments at this late juncture. See PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 272 (Tex. 2012) ("After the time to bring a direct attack has expired, a litigant may only attack a judgment collaterally."); Davis, 317 S.W.3d at 308-10 (holding that appellant could not raise alleged deficiencies in voidable turnover order when she failed to timely prosecute a direct appeal of such order or seek injunctive or mandamus relief prohibiting the execution of the order); Brashear v. Victoria Gardens of McKinney, L.L.C., 302 S.W.3d 542, 546 (Tex. App.-Dallas 2009, no pet.) ("Even void orders must be timely appealed." (citation and internal quotation marks omitted)).[17]

         b. Claim against Dunn and SAD

         The subject assignment also included within its scope "all causes of action now or hereafter asserted" in Goin's lawsuit. (Emphasis added). Goin's malpractice claim against Dunn qualified as a cause of action "hereafter asserted." However, this claim was not alleged until December 2016, nearly one and one-half years after the turnover order. Accordingly, Goin's contention that the turnover order and assignment did not transfer his legal malpractice claim, and that such an assignment is invalid as a matter of public policy, could not have been asserted within the time for filing a direct appeal of the turnover order. See Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 850-52 (Tex. 2000) (noting that ripeness is a component of subject-matter jurisdiction that "focuses on whether the case involves uncertain or contingent future events that may not occur as anticipated or may not occur at all" (citation and internal quotation marks omitted)); Camarena v. Tex. Emp't Comm'n, 754 S.W.2d 149, 151 (Tex. 1988) ("It is fundamental that a court has no jurisdiction to render an advisory opinion on a controversy that is not yet ripe."). Nor could Goin have urged his argument that the court erred by failing to modify the turnover order to transfer the net proceeds of the malpractice claim, as opposed to the claim itself. These issues became ripe for the district court's consideration in December 2016, when Goin amended his petition to allege a malpractice claim. The court's February 2018 clarification order reiterated that this claim was encompassed within Goin's June 2015 assignment, and Goin has timely appealed the clarification order. See Tex. R. App. P. 26.1 (requiring that notice of appeal be filed thirty days after judgment is signed). Accordingly, we have jurisdiction over Goin's appeal with respect to the portion of the clarification order related to the turnover of his malpractice claim.

         2. Mandamus

         The Texas Rules of Appellate Procedure do not provide a fixed deadline for filing a petition for writ of mandamus. CMH Homes v. Perez, 340 S.W.3d 444, 453 (Tex. 2011). Instead, mandamus is governed largely by equitable principles, id., and "a petition for mandamus may be denied under the equitable doctrine of laches if the relator has failed to diligently pursue the relief sought," In re Spiller, 303 S.W.3d 426, 429 (Tex. App.-Waco 2010, orig. proceeding); see also Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993) (orig. proceeding) ("[E]quity aids the diligent and not those who slumber on their rights." (citation and internal quotation marks omitted)). However, laches does not apply when the order subject to the mandamus proceeding is void. In re Choice! Energy, L.P., 325 S.W.3d 805, 810 (Tex. App.-Houston [14th Dist.] 2010, orig. proceeding).[18] To the extent Goin's issues establish that the turnover order, and the subsequent clarification order, are void, mandamus is proper in this case.

         B. Scope of Assignment

         Turning to the merits of Goin's appeal, he first contends that the turnover order and assignment did not transfer his malpractice claims to Crump or to the Receiver. We disagree. As previously explained, the turnover order grants the Receiver authority to take possession of all of Goin's leviable property, including, but not limited to, any causes of action against MICA, Travelers, and Great American. In addition, while the assignment applies to Goin's causes of action against the foregoing entities, it also "includes . . . all causes of action now or hereafter asserted" in Goin's lawsuit without reference to a specific defendant. (Emphasis added). This language, on its face, applies to the malpractice claim that Goin added to his lawsuit after the turnover order and assignment. Cf. D & M Marine, Inc. v. Turner, 409 S.W.3d 853, 857 (Tex. App.-Fort Worth 2013, no pet.) ("Generally, causes of action constitute property subject to turnover ...

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