Matthew Goggans v. Tonia Marie Ford

AFFIRMED; Opinion Filed May 11, 2016.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-00052-CV
MATTHEW GOGGANS, Appellant
V.
TONIA MARIE FORD, Appellee
On Appeal from the 44th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-12-02281
MEMORANDUM OPINION
Before Justices Lang-Miers, Evans, and Schenck
Opinion by Justice Evans
In this appeal from a turnover order, appellant Matthew Goggans contends the trial court
erred in turning over claims he might have against his liability insurer while the underlying
judgment against him is being appealed. We conclude the trial court did not abuse its discretion
and we affirm the turnover order.
BACKGROUND
Appellee Tonia Marie Ford sued Goggans for injuries she sustained in an automobile
accident. Goggans was provided a defense by his insurer, Germania Insurance Company. Prior
to trial, Ford offered to settle her claims against Goggans for the limits of his insurance coverage.
Germania refused the settlement offer. After a trial on the merits, a jury found Goggans was
negligent in his operation of a motor vehicle and that such negligence proximately caused the
injuries and damages sustained by Ford. The trial court signed a judgment awarding Ford
$323,391.94 in damages plus post-judgment interest at a rate of five percent per annum. This
amount exceeded the limits of Goggans’s liability insurance policy.
After entry of the judgment, Goggans filed, among other things, a notice of appeal and a
motion to decrease the security required for a supersedeas bond. The trial court conducted a
hearing on the motion to decrease security and denied it without prejudice to allow Goggans to
refile his request with an amended affidavit concerning his assets. Goggans filed his first
amended motion to decrease security on November 12, 2014.
One week before Goggans filed his amended motion to decrease security, Ford filed a
motion for turnover order. The motion requested the court to order Goggans to turn over all
claims he had against his insurance company, including any cause of action for negligent failure
to settle within policy limits (a “Stowers claim”). See G. A. Stowers Furniture Co. v. American
Indem. Co., 15 S.W.2d 544, 547 (Tex. 1929) (insurer has duty to settle within policy limits when
reasonably prudent to do so). Submitted along with the motion were letters showing that Ford
offered to settle her claims against Goggans for the coverage limits of Goggans’s liability
insurance policy and that Germania refused the offer. Goggans responded to the request for
turnover order arguing that Ford’s motion was premature because the judgment establishing his
liability was not final and no Stowers claim in which he would have a property interest yet
existed. In the alternative, Goggans argued it was against public policy to allow a Stowers claim
to be made the subject of a turnover order.
At the hearing on Ford’s motion for turnover, the following exchange between the court
and Ford’s counsel occurred:
THE COURT: Well, first, let me make sure that I understand what [Ford] wants.
[Ford] wants the potential cause of action, the Stowers cause of action . . . .
That’s what you want as far as in lieu of the supersedeas bond?
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APPELLEE’S COUNSEL: Yes
The trial court granted the motion for turnover order and ordered that “any and all causes of
action [Goggans] has, or in the future may possess, including but not limited to the Stowers
action are hereby award [sic] and turned over to [Ford].” The record contains no ruling, and the
parties concede there is none, on Goggans’s motion to decrease the security required for a
supersedeas bond. Goggans then brought this appeal from the trial court’s order.
During the pendency of this appeal, a different panel of this Court affirmed the judgment
against Goggans in the underlying personal injury case. See Goggans v. Ford, No. 05-14-01239-
CV, 2015 WL 8523302 (Tex. App.—Dallas Dec. 9, 2015, pet. filed) (mem. op.). Goggans has
filed a petition for review of that decision with the Texas Supreme Court.
ANALYSIS
We review the trial court’s decision to grant or deny a turnover order for an abuse of
discretion. See HSM Dev., Inc. v. Barclay Props., Ltd., 392 S.W.3d 749, 751 (Tex. App.—
Dallas 2102, no pet.). We may reverse the trial court’s ruling only if we conclude the court acted
in an unreasonable or arbitrary manner or acted without reference to any guiding rules or
principles. Id.
Under section 31.002 of the Texas Civil Practice and Remedies Code, a trial court may
order a judgment debtor to turnover nonexempt property, including present or future rights to
such property, that cannot readily be attached or levied on by ordinary legal process. See TEX.
CIV. PRAC. & REM. CODE ANN. § 31.002 (West 2015). Rights to a judgment debtor’s claims
against his insurer may properly be made the subject of a turnover order. See D & M Marine,
Inc. v. Turner, 409 S.W.3d 853, 858 (Tex. App.—Fort Worth 2013, no pet.). Goggans argues he
has no present or future property rights in any Stowers claim against his insurer because the
Stowers claim does not yet exist and will not accrue unless all appeals of the underlying
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judgment have been exhausted and the judgment against him is affirmed. Goggans relies on the
case of Street v. Honorable Second Court of Appeals, 756 S.W.2d 299, 301 (Tex. 1988). Street,
however, contradicts Goggans’s position rather than supports it.
In Street, the court held that “a judgment is final for the purposes of bringing a Stowers
action if it disposes of all issues and parties in the case, the trial court’s power to alter the
judgment has ended, and execution on the judgment, if appealed, has not been superseded.” Id.
The court went on to hold that, if the underlying judgment against the insured has not been
superseded, the insured may bring a Stowers claim against his insurer regardless of the appellate
status of the case because the outstanding judgment causes injury while it remains unpaid. Id.
Goggans suggests the judgment against him is not final under Street because Ford cannot execute
upon the judgment until the trial court rules on his amended motion to decrease the security
required for the supersedeas bond. Goggans essentially contends that his motion, which has been
pending for almost a year and a half, has the same effect as if he had posted a sufficient bond to
supersede the judgment. Goggans cites no authority for the proposition that filing a motion to
decrease security, by itself, prevents enforcement of a judgment and we have found none.
There are only four methods by which a judgment may be superceded: (1) filing with the
trial court clerk a written agreement with the judgment creditor for suspending enforcement of
the judgment; (2) filing with the trial court clerk a good and sufficient bond; (3) making a deposit
with the trial court clerk in lieu of a bond; or (4) providing alternate security ordered by the
court. TEX. R. APP. P. 24.1. Goggans argues that the discussion between the trial court judge
and Ford’s counsel at the hearing on the turnover order constitutes an agreement suspending
enforcement of the judgment. The exchange to which Goggans refers was a question by the
judge asking if Ford wanted a turnover of the Stower’s claim “in lieu of a supersedeas bond” to
which Ford’s counsel responded “yes.” Counsel’s oral representation to the court that Ford
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would prefer a turnover order to a supersedeas bond in no way constitutes an agreement between
the parties, let alone a written agreement filed with the trial clerk as required by the Texas Rules
of Appellate Procedure. Id. Indeed, Goggans brought this appeal for the sole purpose of
attempting to reverse the very order he contends Ford accepted in exchange for suspending
enforcement of the judgment. Because the underlying judgment against Goggans has not been
superseded and is final for purposes of Stowers, a claim may be brought against Goggans’s
insurer regardless of the fact that all appeals have not been exhausted. See Gulf Ins. Co. v.
Clarke, 902 S.W.2d 156, 160 (Tex. App.—Houston [1st Dist.] 1995, writ denied) (finality of
judgments rule stated in Street equally applicable to claims brought by third parties against
insurer). The claim, therefore, exists as property subject to turnover.
Goggans next argues that public policy prohibits the turnover of his Stowers claim.
Although Goggans concedes that Stowers claims are assignable, he contends assignment by
virtue of a turnover order constitutes an impermissible “involuntary assertion” of the claim.
Generally, causes of action against third parties are properly made the subject of a turnover order
when the judgment creditor has the same interest in pursuing them to maximum value as the
judgment debtor. See D & M, 409 S.W.3d at 857. Some Texas courts have held, however, that a
Stowers claim is not subject to turnover if the insured has indicated he was satisfied with his
insurer’s decision not to settle or he has released his potential claims against the insurance
company. See Charles v. Tamez, 878 S.W.2d 201, 208 (Tex. App.—Corpus Christi 1994, writ
denied); Nationwide Mut. Ins. Co. v. Haffley, 78 Fed. Appx. 348 (5th Cir. 2003). Where the
insured has no complaints about his representation or no interest in pursuing a claim, he and the
judgment creditor would not be aligned. The duty to settle a lawsuit under Stowers is a personal
duty and the insured should not be forced to pursue a claim that he has no wish to pursue. See
Tamez, 878 S.W.2d at 208. Furthermore, where the insured is satisfied with his insurer’s
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representation and denies that he suffered any injury, no Stowers cause of action exists. See id.
at 209; Dauter-Clouse for Benefit of Bankr. Estate of Johnson v. Robinson, 936 S.W.2d 329, 332
(Tex. App.—Houston [14th Dist.] 1996, no pet.).
Unlike the cases that have held a turnover order would violate public policy, there is no
evidence here that Goggans was satisfied with his insurer’s refusal to settle the underlying suit or
that he did not wish to pursue a Stowers claim. Such evidence could easily have been produced.
Goggans has not taken the position that a Stowers claim does not exist on the basis that he was
not injured. Absent such evidence, we cannot conclude the trial court abused its discretion in
granting the turnover. See D & M, 409 S.W.3d at 858 (turnover did not violate public policy
where there was no evidence insured did not want to be indemnified).
To the extent Goggans has raised concerns that pursuit of a Stowers claim could interfere
with his defense during the pendency of his appeals, the supreme court in Street noted that “a
trial court might in some instances have the authority to abate such a suit until all appeals are
exhausted [and] it is within the sound discretion of the trial court to regulate discovery and the
setting of trial to advance the ends of justice.” Street, 756 S.W.2d at 302. Here, Goggans does
not complain that discovery, if any, pursuant to the turnover order has or may interfere with
Goggans’s prosecution of his appeals with counsel retained through his insurance policy. There
is nothing, therefore, for us to rule on regarding interference discovery might cause.
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CONCLUSION
Based on the foregoing, we resolve Goggans’s sole issue against him. We affirm the trial
court’s order.
/David Evans/
DAVID EVANS
150052F.P05 JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MATTHEW GOGGANS, Appellant On Appeal from the 44th Judicial District
Court, Dallas County, Texas
No. 05-15-00052-CV V. Trial Court Cause No. DC-12-02281.
Opinion delivered by Justice Evans. Justices
TONIA MARIE FORD, Appellee Lang-Miers and Schenck participating.
In accordance with this Court’s opinion of this date, the trial court’s order on motion for
turnover dated December 15, 2014 is AFFIRMED.
It is ORDERED that appellee TONIA MARIE FORD recover her costs of this appeal
from appellant MATTHEW GOGGANS.
Judgment entered this 11th day of May, 2016.
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