Texas Judiciary Online - HTML Opinion

ICO gave=20 Gollin the requisite notice that it did not intend to renew the = Original=20 Agreement after expiration of the initial two-year period.^{^[1]} =20 At the time, Gollin=3Ds annual=20 salary was $247,500; therefore, ICO was required to pay Gollin = this amount=20 some time after the end of the two-year period on June 20, = 2003. =20 However, despite ICO having given the sixty-day notice under the = Original=20 Agreement, ICO and Gollin still thought that they might be able to = come to=20 a new agreement under which Gollin would continue as Chief = Executive=20 Officer. Nonetheless, as the expiration of = Gollin=3Ds=20 employment under the Original Agreement approached, the parties = still were=20 negotiating and wished to continue negotiating beyond June 20, = 2003. =20 To this end, effective June 19, 2003, the parties entered into an=20 agreement (hereinafter ASupplemental=20 Agreement@)=20 extending the expiration date of the Original Agreement to July = 15, 2003,=20 to allow time for more negotiation. On July 14, 2003, the = parties=20 amended the Supplemental Agreement to change all references to=20 AJuly 15,=20 2003@ = to=20 AAugust 15,=20 2003,@ = potentially extending the term of Gollin=3Ds=20 employment through August 15, 2003. Under the Supplemental = Agreement=20 as amended, notwithstanding anything to the contrary in the = Original=20 Agreement, in the event that Gollin terminated his employment with = ICO on=20 or before August 15, 2003, ICO agreed it would Aowe=20 [Gollin] severance pay equal to $247,500.@ =20 Again, this agreement specified the amount but not the timing of = the=20 payment.

Effective=20 July 17, 2003, Gollin resigned his employment, and therefore, = under the=20 amended Supplemental Agreement, ICO had to pay = Gollin=20 $247,500 at some point in time, but the parties had not = explicitly=20 agreed as to when this amount would be due. Gollin asserted = that the=20 entire amount was due on his last day of employment, whereas ICO = wanted to=20 pay this amount in installments over the one-year period after the = end of=20 Gollin=3Ds employment. =20 Contemporaneous with the end of Gollin=3Ds employment on July = 17, 2003,=20 but effective July 18, 2003, ICO and Gollin entered into an = agreement as=20 to how this severance would be paid (hereinafter AFinal = Agreement@). Under the = Final=20 Agreement, ICO agreed to pay Gollin $82,500 upon receipt of the = signed=20 agreement followed by six monthly installments of $27,500, = beginning on=20 August 15, 2003.

=20 Although ICO made the first = payment=20 of $82,500, before the next payment came due on August 15, 2003, = Hoard=20 Gainer Industry Co., Ltd., a creditor of Gollin, served a writ of=20 garnishment on ICO (AHoard Gainer = Action@). Due to the = Hoard=20 Gainer Action, ICO made no further payments to Gollin. The = writ of=20 garnishment in the Hoard Gainer Action was eventually dissolved = without=20 any payment having been made by ICO and without any determination = as to=20 whether the severance payments are exempt from = garnishment. See=20 Hoard Gainer Indus. Co., Ltd. v. Gollin, No. 01-03-01320-CV, = 2005 WL=20 1646116, at *1B2 (Tex. = App.CHouston [1st Dist.] = July 14,=20 2005, pet. denied). Before the=20 Hoard Gainer Action was completely resolved, however, appellant = General=20 Electric Capital Corporation served its writ of garnishment on ICO = in this=20 case. Due to the pendency of this action, ICO has not paid = the=20 remaining $165,000 to Gollin.

Analysis