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Affirmed in Part, Reversed and Rendered in Part, = and=20 Majority and Concurring Opinions filed June 12, = 2007.

 

 

 

In The

 

Fourteenth Court=20 of Appeals

____________

 

NO. 14-05-01095-CV

____________

 

GENERAL=20 ELECTRIC CAPITAL CORPORATION and MORRIS = TABAK, = Appellants

 

V.

 

ICO, INC.,=20 TIMOTHY J. GOLLIN, and WEYCER KAPLAN PULASKI & ZUBER,=20 P.C.,=20 Appellees

 

 

On Appeal from the = 165th District Court

Harris County, = Texas

Trial Court Cause = No. 2005-36250A

 

 

M A J O R=20 I T Y  O P I N I O N

Appellants,=20 General Electric (GE) and Morris Tabak,  appeal the trial=20 court=3Ds granting=20 of a motion to dissolve a writ of garnishment in favor of = appellees, ICO,=20 Inc. (ICO), Timothy Gollin, and Weycer Kaplan Pulaski & Zuber, = P.C.  GE and Tabak bring three issues on appeal: 1) whether = the trial=20 court erred in granting the motion to dissolve on the basis that = the=20 garnished funds were exempt as current wages for personal service; = 2)=20 whether it was error to grant attorney=3Ds fees in=20 favor of Gollin against GE and Tabak; 3) and whether the court = reversibly=20 erred in not filing findings of fact and conclusions of law as=20 requested.  We affirm the dissolution of the writ, but = reverse the=20 trial court=3Ds award of=20 attorney=3Ds fees to=20 Gollin.

Factual=20 and Procedural Background

In June of=20 2001, Gollin began working for ICO as Chief Executive = Officer. =20 Gollin=3Ds=20 employment agreement stated that he would receive a severance = package=20 should his contract not be renewed.  The contract stated that = Gollin=20 would be entitled to a severance package equal to one time his = base salary=20 immediately prior to his non-renewal.  The contract did not, = however,=20 specify any details of the payment, such as its timing or whether = it would=20 be payed in a lump sum or over time.  After the end of his = contract=20 term, Gollin was unable to reach an agreement with ICO concerning=20 renewal.  Gollin and ICO agreed that his nonrenewal entitled = Gollin=20 to severance pay.  ICO proposed to pay the severance over a = full=20 year, but Gollin requested a lump sum payment.  The two = entered into=20 a compromise agreement, stating that ICO would pay the severance = over a=20 six month period. 

In the=20 meantime, GE obtained a judgment against Gollin in the United = States=20 District Court for the Southern District of Texas in November of = 2001 for=20 $389,102. GE pursued a garnishment in state court against ICO, who = owed=20 Gollin the severance payment, which was equivalent of one = year=3Ds salary,=20 or $247,000.  The trial court issued a writ of garnishment, = and=20 thereafter Gollin filed a motion to dissolve the writ pursuant to = Rule=20 664a of the Texas Rules of Civil Procedure.  He argued that = the=20 garnished severance payments were current wages and, as such, were = exempt=20 under the Texas Constitution, the Texas Civil Practice and = Remedies Code,=20 and the Texas Property Code.  ICO then answered the writ, = admitting=20 its indebtedness, but pleading as a defense that the amount = constituted=20 Gollin=3Ds current=20 wages.

The trial=20 court entered an order dissolving the writ, stating in its order = that it=20 found the motion to dissolve meritorious.  The court further = ordered=20 that GE and Tabak would pay $3,500 in attorney=3Ds fees to=20 Gollin=3Ds counsel,=20 Weycer, Kaplan, Pulaski, & Zuber, P.C.  Following this = order, GE=20 requested findings of fact and conclusions of law.  The trial = court=20 never responded to this request.[1]=20

Analysis

I.       =20 The Writ Was Not Improperly Dissolved

A.     =20 Standard of Review

Precedent=20 from this court dictates that we apply an abuse of discretion = standard to=20 resolve whether the dissolution of a writ of garnishment was = improvidently=20 granted.  See Am. Express Travel Related Servs. v. = Harris, 831=20 S.W.2d 531, 533 (Tex. App.CHouston=20 [14th Dist.] 1992, no writ); see also Kyanize Paints, Inc. v.=20 Denton, No. C14-91-00705-CV, 1992 WL 105764, at *5 (Tex.=20 App.CHouston=20 [14th Dist.] May 21, 1992, no writ) (not designated for=20 publication).  A trial court abuses its discretion if it acts = without=20 reference to guiding rules or principles, or in an arbitrary or=20 unreasonable manner.  See Downer v. Aquamarine Operators,=20 Inc., 701 S.W.2d 238, 241B42 (Tex.=20 1985).

B.     =20 No Abuse of Discretion in Holding Severance Was Current Wages for = Personal=20 Services

Under Rule=20 of Civil Procedure 664a, a defendant whose property or account has = been=20 garnished may seek to vacate, dissolve, or modify the writ of = garnishment=20 for any grounds or cause, extrinsic or intrinsic.  One such = ground,=20 under Texas law, is the exemption from garnishment for = Acurrent=20 wages for personal service.@ =20 Tex. Const. art. = XVI,=20 ' = 28; Tex. Civ. Prac. & Rem. = Code=20 ' = 63.004;=20 see also Tex. = Prop. Code=20 ' = 42.001.

AThe=20 garnishment exception for current wages applies without regard to = whether=20 compensation is denominated as >wages=3D = or=20 >salary,=3D = the=20 controlling issue being whether it is compensation for personal=20 service.@ =20 Davidson Texas, Inc. v. Garcia, 664 S.W.2d 791, 793 (Tex.=20 App.CAustin=20 1984, no writ).  This exception should be liberally construed = in=20 favor of the wage earner.  Id. (citing J.M. Radford = Grocery=20 Co. v. McKean, 41 S.W.2d 639, 640 (Tex. Civ. App. 1931, no = writ);=20 see also Hickman v. Hickman, 149 Tex. 439, 234 S.W.2d 410, = 413=20 (1950) (stating A[O]ur=20 exemption laws should be liberally construed in favor of express=20 exemptions, and should never be restricted in their meaning and = effect so=20 as to minimize their operation upon the beneficent objects of the=20 statutes. Without doubt the exemption would generally be resolved = in favor=20 of the claimant@).   =20

The record=20 tells us only that the initial employment agreement between Gollin = and ICO=20 required ICO to pay Gollin a severance package if the parties were = unable=20 to reach an agreement regarding contract renewal.  It was the = job of=20 the court below, and it is our job now, to construe whether such = an=20 agreement is for Apersonal=20 services.@  GE=20 and Tabak point to language in a supplemental agreement between = Gollin and=20 ICO, which states that the severance will be owed upon termination = of the=20 employment relationship.  But this language only states when = the=20 severance must be paid, not why the severance was owed.  GE = and Tabak=20 also cites language from the original employment agreement as = proof that=20 the severance package was payment for continuing obligations, such = as=20 nondisclosure and agreement not to sue ICO.  However, this = cited=20 contract provision deals with the severance package that would = have been=20 owed had Gollin=3Ds=20 employment been terminated other than by non-renewal.  The = severance=20 package in this case was owed pursuant to different contractual=20 provisionsCprovisions=20 which did not describe why the severance was owed.  = Therefore, we=20 look to case law for guidance in construing whether severance = payments are=20 for personal services.

In=20 Radford, a grocery store was garnished for an amount owing = to its=20 employee, Tinsley.  41 S.W.2d at 639.  = Tinsley=3Ds contract=20 provided that he would earn a set amount of money per month, and = if=20 Tinsley met the condition of remaining with the grocery store for = more=20 than one year, he would be paid an additional bonus, based on a = percentage=20 of his sales.  Id.  The trial court allowed the=20 garnishment based on the idea that any amount over and above his = hourly=20 wage did not constitute Acurrent=20 wages for personal services.@ =20 Id.  The appellate court reversed, relying on the = liberal=20 construction to be given exemption statutes.  It held that = the=20 payment was current wages for personal services within the meaning = of the=20 Constitutional and statutory exemptions because the payment was = additional=20 consideration for Tinsley=3Ds=20 services.  Id. at 640.

King v.=20 Floyd extended=20 the Radford line of reasoning.  In King, a = football=20 player=3Ds contract=20 contained a provision that he would be paid while he was injured, = so long=20 as the team physician opined that the player was unable to perform = due to=20 his injuries.  538 S.W.2d 166, 169 (Tex. Civ. = App.CHouston=20 [1st Dist.] 1976, writ ref=3Dd=20 n.r.e.).  The court held that the payments made to the player = after=20 his injury rendered him unable to compete might be = considered=20 additional compensation for the services previously rendered, and=20 construed the continuation of salary to be in the nature of a = bonus for=20 satisfactory service.  Id.

The=20 liberal construction in favor of express exemptions, as = illustrated in=20 Radford and King controls our disposition of this=20 issue.  When no contradictory contract language exists, we = hold that=20 a severance payment should be liberally construed as a bonus for=20 satisfactory service, since such payments might be considered = additional=20 compensation for services previously rendered.  Here, = although the=20 payment of the severance is an amount over and above = Gollin=3Ds normal=20 salary, the contract does not state that the money is for = something other=20 than services already rendered. 

Therefore,=20 because of the general rule that we apply the exemption laws = liberally,=20 and because this contract does not clearly state that the = severance=20 payment was for something other than personal services, and = because courts=20 have found severance agreements to qualify as current wages for = personal=20 service, the trial court acted within its discretion when it found = that=20 the severance payment was in the nature of current wages for = personal=20 service.[2]=20

C.     =20 No Abuse of Discretion in Holding That Severance Did Not Lose = Exempt=20 Status

GE and=20 Tabak argue that even if the severance constituted current wages = when it=20 was owed, it lost its exempt status when Gollin agreed to = Aleave@ = part of=20 the severance with ICO to be paid over time.  While it is = true that=20 an exemption may be lost under certain circumstances, those = circumstances=20 are not present here.

1.=20       Current Wages Exemption May Be=20 Lost

The=20 protection of the constitutional exemption may be lost when the = wages are=20 under the control of the employee and the employee voluntarily = leaves them=20 with his employer or collects and deposits them with someone = else. =20 Davidson v. F.H. Logeman Chair Co., 41 S.W. 824, 825 (Tex. = Civ.=20 App. 1897, no writ); see also Sloan v. Douglass, 713 S.W.2d = 436,=20 440 (Tex. App.CFort Worth=20 1986, writ ref=3Dd n.r.e.)=20 (stating that voluntariness and control are both elements to be = considered=20 in deciding if wages are exempt). 

The=20 seminal case on the subject of losing current wages status is = Bell v.=20 Indian Live-Stock Co., 11 S.W. 344 (Tex. 1889).  In = Bell,=20 the employee was paid a wage of $200 per month, but left his money = with=20 his employer and drew funds only as he needed them.  Id. = at=20 344B45. The=20 court held that the sum of $624.50, which had accrued in the=20 employee=3Ds account=20 with his employer, had lost its exempt status because the wages = were no=20 longer current.  Id. at 346.

Davidson=20 v. F.H. Logeman Chair Co. presented=20 a similar issue.  There, an employee was being paid $75 per = month,=20 but had not been collecting his pay as it became due.  The = court held=20 that the wages which were past due and in the hands of the = employer were=20 subject to garnishment, but the amount due for the month of = September,=20 which the employee was unable to collect and was not voluntarily = left with=20 the employer, was still exempt as current wages. =20 Davidson,  41 S.W. at 825.   =

A third=20 case, Sloan v. Douglass, reiterates that control and = voluntariness=20 are the two elements to be considered in whether the current wages = exemption has been destroyed.  In deciding whether a baseball = player=3Ds deferred=20 compensation lost its exemption, the court said, AAppellants=20 attach great emphasis to the fact that appellee voluntarily left = his wages=20 with the Rangers.  Voluntarily leaving wages with = one=3Ds employer=20 is only one element ... as other cases discuss control over the = wages as=20 being an additional element to be considered.@ =20 Sloan, 713 S.W.2d at 440.

2.      =20 GE and Tabak Rely On Sloan

GE and=20 Tabak rely exclusively on language in Sloan to support = their=20 contention that Gollin=3Ds=20 severance lost its exempt status when Gollin agreed to have it = paid over a=20 six month period.  In Sloan, a baseball player signed = a=20 contract with the Texas Rangers baseball club for services to be = rendered=20 over a five year period.  See id. at 438.  His = salary in=20 the third, fourth and fifth year was substantially increased, but = he=20 agreed to receive most of the increased amount over a ten year = period,=20 beginning after the five year contract term was over.  See = id.  The court acknowledged that the appellee voluntarily = signed=20 the contract.  Id. at 440.  However, in the part = of the=20 opinion GE and Tabak now rely on, the court stated that the = Acontract=20 was signed before appellee had any right to or any control = over the=20 money.@ =20 Id. (emphasis added).  The court held that although = his salary=20 deferral may have been voluntary, appellee never had any control = over the=20 money, and his wages did not lose their exempt status.  = See id.=20 at 440B41.=20

3.      =20 Unlike Sloan, Gollin=3Ds=20 Agreement to Defer Was Not AVoluntary@

Although=20 we do not adopt the Sloan standard as controlling in this = instance,=20 to the extent it is applicable, it is distinguishable.  In=20 Sloan, voluntariness was a given.  The contract = deferring=20 payment in that case was signed freely and before any services = were=20 rendered or money paid.  In this case, however, voluntariness = is not=20 a given.  When wages are left with an employer due to an = inability to=20 collect them, they are not left voluntarily.  = Davidson, 41=20 S.W. at 825.  Another court has held:

the=20 purpose of the constitutional provision, is to exempt the wage = until it is=20 due and is in possession of the wage-earner, provided that, if he = is=20 unable to collect same when due, the exemption then continues to = such time=20 when he can collect same in the exercise of ordinary = diligence.

Lee v.=20 Emerson-Brantingham Implement Co., 222 S.W.=20 283, 284 (Tex. Civ. App.CDallas=20 1920, no writ).  Here, at the end of his employment, Gollin = demanded=20 payment immediately in a lump sum, but ICO would not = acquiesce. =20 After negotiations, Gollin and ICO agreed that payments would be = made over=20 a six month period.  Clearly, the inability to collect the = entire sum=20 was not of Gollin=3Ds own=20 choosing.  It was involuntary. 

GE and=20 Tabak would have us hold that Gollin did not exercise ordinary = diligence=20 to collect his severance payment and therefore the wages lost = their exempt=20 status because he agreed to a payout of the wages when his = employer=20 refused to pay in a lump sum.  GE and Tabak appear to = maintain that=20 Gollin must have sued immediately when ICO did not pay the full=20 amount.  This claim would require us to conclude that when an = employer and employee have a legitimate dispute over the payout of = wages,=20 an employee=3Ds choice=20 to negotiate to obtain the money due and owing does not qualify as = the=20 exercise of ordinary diligence; something more is required.  = But, if=20 negotiations do not constitute ordinary diligence, the alternative = is a=20 lawsuit.  This is an extreme position we are unwilling to=20 adopt.

GE and=20 Tabak have not cited any opinion in which a court held that (1) = one who=20 chose to negotiate before suing failed to use ordinary diligence, = or (2)=20 the wages the employer held should lose their exempt status.  = Suit=20 should not be the only alternative available to an employee to = preserve=20 the exempt status of wages.  GE and Tabak=3Ds position=20 ignores the many authoritiesCincluding=20 courtsCthat=20 recognize the value of negotiations and other forms of alternative = dispute=20 resolutions.  See, e.g., Tex. Civ. Prac. & Rem. = Code=20 ' = 154.002=20 (AIt is the=20 policy of this state to encourage the peaceable resolution of = disputes=20 ....@); id.=20 ' = 154.003=20 (placing burden of implementing policy on the courts);  = L.H. Lacy=20 Co. v. City of Lubbock, 559  S.W.2d 348, 352 (Tex. 1977) = (holding=20 that a policy of encouraging arbitration agreements is preferable = in order=20 to alleviate court congestion); Hansen v. Sullivan, 886 = S.W.2d 467,=20 469 (Tex. App.CHouston=20 [1st Dist.] 1994, orig. proceeding) (citing section 154.002 of the = Civil=20 Practice and Remedies Code for Texas=3Ds general=20 policy favoring peaceable dispute resolution). 

Thus, for=20 purposes of maintaining the exempt status of wages, we refuse to = hold that=20 an employee who negotiates with his employer to secure payment of = wages=20 held by the employer has not exercised ordinary diligence.  = And we=20 hold that an employee does not voluntarily leave money with an = employer=20 when the employee negotiates, rather than sues, to force the = employer to=20 pay the wages owed.

4.      =20 Right to Payment Is Not Sufficient To Meet Control = Prong

Still=20 assuming that the Sloan standard is applicable, we now turn = to the=20 second elementCcontrol. =20 Appellant asks us to construe language in Sloan to mean = that a=20 contractual right to payment[3]=20 is sufficient control to destroy the exemption. =20

Again, GE=20 and Tabak=3Ds position=20 is unsupported by the case law.  No precedent holds that a = simple=20 right to payment constitutes a right of control sufficient to = destroy the=20 current wages exemption.  In the leading cases in this area, = the=20 exemption has been held destroyed only when the employee has = treated his=20 employer as a bankCaccruing=20 funds and drawing them out only as needed.  See, e.g.,=20 Davidson, 41 S.W. at 825; Bell, 11 S.W. at 346.  = Clearly=20 that was not the case here, when Gollin agreed to be paid over = time, at=20 intervals, not as a matter of convenience for himself, but because = it was=20 the only way ICO would agree to pay him.  Besides the = situation=20 presented in Bell and Davidson, courts have said the = exemption is destroyed only when there has been Areceipt@ = or=20 Apossession@ = of=20 wages.  See, e.g., Brink v. Ayre, 855 S.W.2d 44, 45 = (Tex.=20 App.CHouston=20 [14th Dist.] 1993, no writ); Caulley v. Caulley, 777 S.W.2d = 147,=20 151 (Tex. App.CHouston=20 [14th Dist.] 1989), aff=3Dd in part,=20 rev=3Dd in=20 part, 806=20 S.W.2d 795 (Tex. 1991); Cain v. Cain, 746 S.W.2d 861,=20 862B63 (Tex.=20 App.CEl Paso=20 1988, writ denied); Salem v. Am. Bank of Commerce, 717 = S.W.2d 948,=20 948B49 (Tex.=20 App.CEl Paso=20 1986, no writ); Smith v. Bradshaw, 105 S.W.2d 340, 341 = (Tex.=20 App.CDallas=20 1937) aff=3Dd, 130 Tex.=20 180, 108 S.W.2d 200 (1937); Sutherland v. Young, 292 S.W. = 581, 583=20 (Tex. Civ. App.CWaco 1927,=20 no writ).  Control is not established merely because ICO was = bound by=20 the contract to pay Gollin the severance funds.  As we noted = earlier,=20 ICO and Gollin had a legitimate dispute as to how the funds were = to be=20 paidCin one=20 lump sum or over time.  Gollin resorted to negotiations to = resolve=20 the dispute.  The fact that he received the money over time = rather=20 than in one lump paymentChis=20 desired form of paymentCshows that=20 he did not exercise control over the funds.

As we have=20 already noted, the funds were not left voluntarily, and since = Gollin did=20 not exercise control over the funds, the severance did not lose = its=20 exemption, and the trial court did not abuse its discretion by = dissolving=20 the writ.  We overrule GE and Tabak=3Ds first=20 issue.

II.      =20 Attorney=3Ds Fees=20 Reversed

The=20 availability of attorney=3Ds fees=20 under a particular statute is a question of law for the = court. =20 Holland v. Wal‑Mart Stores, Inc., 1 S.W.3d 91, 94 = (Tex. 1999). We=20 review questions of law de novo.  Tex. = Dep=3Dt of=20 Transp. v. Needham, 82=20 S.W.3d 314, 318 (Tex. 2002).  AAn award=20 of attorney=3Ds fees may=20 not be supplied by implication but must be provided for by the = express=20 terms of the statute in question.@ =20 First City Bank-Farmer=3Ds Branch,=20 Texas v. Guex, 677=20 S.W.2d 25, 30 (Tex. 1984).  Rule 677 of the Texas Rules of = Civil=20 Procedure governs cost allocation in a garnishment = proceeding.  It=20 states:

Where the=20 garnishee is discharged upon his answer, the costs of the = proceeding,=20 including a reasonable compensation to the garnishee, shall be = taxed=20 against the plaintiff; where the answer of the garnishee has not = been=20 controverted and the garnishee is held thereon, such costs shall = be taxed=20 against the defendant and included in the execution provided for = in this=20 section; where the answer is contested, the costs shall abide the = issue of=20 such contest.

Tex. R.=20 Civ. P. 677.  The term Acosts@ = in this=20 rule has repeatedly been interpreted as including = attorney=3Ds=20 fees.  E.g., Rowley v. Lake Area Nat=3Dl=20 Bank, 976=20 S.W.2d 715, 721 (Tex. App.CHouston=20 [1st Dist.] 1998, pet. denied); Moody Nat=3Dl Bank v.=20 Riebschlager, 946=20 S.W.2d 521, 525 (Tex. App.CHouston=20 [14th Dist.] 1997, writ denied); Henry v. Ins. Co. of N. = Am., 879=20 S.W.2d 366, 369 (Tex. App.CHouston=20 [14th Dist.] 1994, no writ). 

Gollin=20 cites to Rowley for the proposition that when a=20 garnishee=3Ds answer=20 is contested, costs should be awarded to whomever prevails in the = contest,=20 whether garnishee or garnishor.  See Rowley, 976 = S.W.2d at=20 722.  To the extent Rule 677 applies here,[4] =20 this court is bound by Henry v. Insurance Co. of North=20 America.  See 879 S.W.2d at 369.  In = Henry,=20 this court held that Rule 677 only gave a garnishee the right to = recover=20 attorney=3Ds fees,=20 and nothing in the rule allows a garnishor to recover = attorney=3Ds fees=20 from a debtor.  Id.

This case=20 is exactly like Henry, except here it is the debtor who is = seeking=20 attorney=3Ds fees=20 under Rule 677.  The rule does not provide for a debtor to = recover=20 attorney=3Ds fees,=20 any more than it provides for a garnishor=3Ds recovery=20 of fees.  Therefore, since we may not supply authority to = award=20 attorney=3Ds fees by=20 implication, we hold that the trial court had no authority under = Rule 677=20 to award attorney=3Ds fees to=20 Gollin.  See id.    

Gollin=20 argues in the alternative that the award of attorney=3Ds fees to=20 him was proper under Rule 664a, since that rule provides that a = court=20 Amay make=20 all such orders ... as justice may require.@ =20 However, as stated above, it has long been the rule in Texas that = unless=20 provided for by contract, an award of attorney=3Ds fees=20 must be provided for by the express terms of the statute in=20 question.  Guex, 677 S.W.2d at 30.  A rule = stating that a=20 court may Amake=20 orders@ = as=20 Ajustice=20 requires@ = falls=20 well short of the specificity required to support an award of=20 attorney=3Ds=20 fees.  See, e.g., Holland, 1 S.W.3d at 95B96=20 (stating that a statute providing for recovery of Areasonable=20 damages@ = was not=20 specific enough to include the accrual of attorney=3Ds fees).=20  We therefore sustain appellants=3D = second=20 issue, and reverse the portion of the trial court=3Ds judgment=20 awarding attorney=3Ds fees to=20 Gollin.

III.     =20 No Findings of Fact or Conclusions of Law Were = Necessary

GE and=20 Tabak=3Ds third=20 issue contends that the trial court harmfully erred in not filing = findings=20 of fact and conclusions of law.  Rule 296 provides that = A[i]n any=20 case tried in the district or county court without a jury, any = party may=20 request the court to state in writing its findings of fact and = conclusions=20 of law.@ =20 Tex. R. Civ. P. = 296. =20 Rule 296 gives a party a right to findings of fact and conclusions = of law=20 after a conventional trial on the merits before the court.  = IKB=20 Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 442 = (Tex.=20 1997).  In all other cases, findings of fact and conclusions = of law=20 are proper, but a party is not entitled to them.  Id.=20   A case is Atried@ = when a=20 court holds an evidentiary hearing.  Puri v. = Mansukhani, 973=20 S.W.2d 701, 708 (Tex. App.CHouston=20 [14th Dist.] 1998, no pet.) (citing Besing v. Moffitt, 882 = S.W.2d=20 79, 81B82 (Tex.=20 App.CAmarillo=20 1994, no writ).  In this case, there was no evidentiary = hearing, and=20 therefore no Atrial on=20 the merits.@  As=20 such, there could have been no findings of fact, and any = conclusions of=20 law would have been only advisory, and were, therefore, = unnecessary. =20 See IKB Indus., 938 S.W.2d at 442.

Even if=20 findings of fact and conclusions of law were necessary, it would = not=20 change our holding because the error, if any, has not prevented = the=20 appellants from properly presenting their case to us.  See = Elliott=20 v. Kraft Foods N. Am., Inc., 118 S.W.3d 50, 54B55 (Tex.=20 App.CHouston=20 [14th Dist.] 2003, no pet.).  The controlling issue is = whether the=20 circumstances of the particular case would require an appellant to = guess=20 at the reasons for the trial court=3Ds=20 decision.  Id. at 54.  Here, GE and Tabak knew = that the=20 court based its decision on the current wages exemption because = that was=20 the only argument set forth in Gollin=3Ds motion=20 to dissolve the writ.  The trial court=3Ds order=20 specifically stated that it dissolved the writ of garnishment = because it=20 found the motion had merit.  Thus, the reason set out in the = motion=20 was the reason for the trial court=3Ds=20 judgment.  We overrule appellant=3Ds third=20 issue.

Conclusion

Having=20 overruled GE and Tabak=3Ds issues=20 one and three and sustained their second issue, we affirm the = order of the=20 trial court, except for the award of attorney=3Ds fees to=20 Gollin, which portion of the order is reversed.

 

 

 

 

/s/     =20 Wanda McKee Fowler

Justice

 

 

 

Judgment=20 rendered and Majority and Concurring Opinions filed June 7,=20 2007.

Panel=20 consists of Justices Fowler, Edelman, and Frost.  (Frost, J., = concurring).


[1]  We note that Morris Tabak passed = away=20 during the pendency of this appeal.  We proceed with = determining the=20 merits of the appeal and render judgment as if he were = alive. =20 See Tex. R. App. = P.=20 7.1(a).

[2]  GE also argues that the = definition of=20 Aseverance@ in the Texas Administrative Code = controls in=20 deciding whether severance fits within the definition of current=20 wages.  We hold that the definition, which relates to the = Texas=20 Payday Rules, does not apply here.  See Brookshire v. = Houston=20 Indep. Sch. Dist., 508 S.W.2d 675, 677B78 (Tex. Civ. App.CHouston [14th Dist.] 1974, no writ) = (holding that=20 a word defined in one act does not necessarily determine the=20 word=3Ds meaning in another act dealing with a = different=20 subject). 

[3]  When we say Aright to payment@ we do not imply that the payment was = due=20 immediately.  We mean simply that under the contract = language,=20 because of the non-renewal of his contract, Gollin was entitled to = receive=20 a severance package.

[4]  Rule 677 may not = apply in=20 this case at all.  By its plain language, it applies where a=20 garnishee is discharged on his answer, held on his answer, or his = answer=20 is contested.  See Tex. R. Civ. P. = 677.  Here,=20 the court dissolved the writ based on a motion by the debtor, not = based on=20 the resolution of a contest as to the garnishee=3Ds answer.=20

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