Wright W. Gore Junior v. Pacific Western Equipment Finance, a Division of Pacific Western Bank F/K/A Marquette Equipment Finance, LLC

Affirmed and Memorandum Opinion filed August 22, 2019.
In The
Fourteenth Court of Appeals
NO. 14-18-00219-CV
NO. 14-18-00253-CV
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
MEMORANDUM OPINION
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
1
The garnishment action proceeded in the trial court under cause number 93938-CV and
on appeal in cause number 14-18-00253-CV.
2
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
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(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
2
The application for turnover proceeded in the trial court under cause number 77937-CV
and on appeal in cause number 14-18-00219-CV.
4
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 whether some
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evidence supports the trial court’s implied findings of fact with respect to Pacific’s
compliance with the applicable service rules. See, e.g., Jacobs, 448 S.W.3d at 631.
Rule 663a provides that the defendant debtor in a garnishment proceeding
shall be served with the following documents in any manner prescribed for service
of citation or as provided in Rule 21a: (1) a copy of the writ of garnishment, (2) the
application, (3) accompanying affidavits, and (4) orders of the court. Tex. R. Civ.
P. 633a (citing Tex. R. Civ. P. 21a). Rule 21a permits service (other than those
filed and served electronically) “in person, mail, by commercial delivery service,
by fax, by email, or by such other manner as the court in its discretion may direct.”
Tex. R. Civ. P. 21a; see also Jacobs, 448 S.W.3d at 632. Rule 21a states that
service by mail is complete “upon deposit of the document, postpaid and properly
addressed, in the mail . . . .” Tex. R. Civ. P. 21a; see also In re E.A., 287 S.W.3d
1, 5 (Tex. 2009).
Compliance with the rules governing service on the defendant debtor in a
garnishment proceeding “does not necessarily require proof of actual acceptance of
service by the debtor.” Jacobs, 448 S.W.3d at 633-34. Instead, these rules require
the defendant be served in any manner provided by Rule 21a. Id. at 634.
A certificate by an attorney showing service or a certified mail return receipt
constitutes prima facie proof that service was proper. See Tex. R. Civ. P. 21a(e);
Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005) (per curiam). The
presumption of proper service may be rebutted by introducing opposing evidence
showing the mailing was not received. Approximately $14,980.00 v. State, 261
S.W.3d 182, 186 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
Gore asserts service was improper because his wife signed the green card,
but he does not cite any authority to support this argument. Contrary to Gore’s
challenge, Rule 21a does not require proof that the debtor actually accepted the
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service — rather, Rule 21a provides that service is complete upon deposit of the
document in the mail. See Tex. R. Civ. P. 21a; Jacobs, 448 S.W.3d at 633-34.
The green card and the “certificate of service” contained on the notice satisfy this
standard and show proper “deposit of the document, postpaid and properly
addressed, in the mail. . . .” See Tex. R. Civ. P. 21a(b)(1). To rebut the
presumption of proper service, Gore could have introduced evidence showing that
he did not receive the mailing even though his wife signed for it. See
Approximately $14,980.00, 261 S.W.3d at 186. He presented no such evidence.
The trial court’s decision therefore is supported by evidence of a substantive and
probative character. See Butnaru, 84 S.W.3d at 211.
Here, the trial court did not abuse its discretion by overruling Gore’s
challenge regarding proper service. The green card and the “certificate of service”
contained on the notice show that notice of the writ of garnishment was mailed to
Gore at his residential address. This evidence constitutes prima facie proof that
service was proper. See Tex. R. Civ. P. 21a(e); Mathis, 166 S.W.3d at 745. Gore
did not rebut this presumption and did not introduce any evidence showing that he
did not receive the mailing.
We overrule Gore’s first issue.
II. Legally Sufficient Evidence Supports the Trial Court’s Final Judgment
in the Garnishment Proceeding.
In the garnishment proceeding’s final judgment, the trial court stated:
• The 2015 final judgment in the Lease Lawsuit remained due and
unsatisfied; and
• Klement was indebted to Gore in the amount of $95,000 on November
2, 2017.
The trial court’s final judgment ordered that (1) $5,040 be deducted from the
$95,000 to satisfy Klement’s attorney’s fees incurred in the underlying proceeding;
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and (2) Pacific recover the remaining $89,960 from Klement in his capacity as the
Seafood Companies’ liquidating manager.
Challenging this judgment, Gore argues there was no evidence that Klement
was indebted to Gore (1) on the date Klement was served with the writ of
garnishment, and (2) on the date Klement filed his answer to the writ.
A. Governing Law and Standards of Review
Garnishment is a statutory proceeding that allows the property, money, or
credits of a debtor in the possession of another to be applied to the payment of a
debt. See Tex. Civ. Prac. & Rem. Code Ann. §§ 63.001-.008 (Vernon 2008) and
Tex. R. Civ. P. 657-679; see also Bank One, Tex., N.A. v. Sunbelt Sav., F.S.B., 824
S.W.2d 557, 558 (Tex. 1992) (per curiam). “‘The only real issue in a garnishment
action is whether the garnishee is indebted to the judgment debtor, or has in its
possession effects belonging to the debtor, at the time of service of the writ on the
garnishee, and at the time the garnishee files its answer.’” 24/7 Grill, LLC v.
Clark, No. 14-13-00099-CV, 2014 WL 1410210, at *2 (Tex. App.—Houston [14th
Dist.] Apr. 10, 2014, pet. denied) (mem. op.) (quoting Baytown State Bank v.
Nimmons, 904 S.W.2d 902, 905 (Tex. App.—Houston [1st Dist.] 1995, writ
denied)).
Controverted issues in a garnishment proceeding may be tried as in other
civil cases. See Tex. R. Civ. P. 674; 24/7 Grill, LLC, 2014 WL 1410210, at *2.
Likewise, on appeal from a garnishment action tried to the bench, the parties may
challenge the legal sufficiency of the evidence to support the trial court’s findings.
See HTS Servs., Inc. v. Hallwood Realty Partners, L.P., 190 S.W.3d 108, 112 (Tex.
App.—Houston [1st Dist.] 2005, no pet.). We apply the same standards for
reviewing the sufficiency of the evidence of a trial court’s findings that we use for
reviewing a jury’s findings. Id.; see also 24/7 Grill, LLC, 2014 WL 1410210, at
8
*2. Where, as here, findings of fact were not requested or filed, we infer all
findings necessary to support the trial court’s judgment. See Rosemond v. Al-
Lahiq, 331 S.W.3d 764, 766 (Tex. 2011) (per curiam); see, e.g., Exterior Bldg.
Supply, Inc. v. Bank of Am., N.A., 270 S.W.3d 769, 772-73 (Tex. App.—Dallas
2008, no pet.).
Because Gore is attacking the legal sufficiency of the evidence supporting an
adverse finding on an issue for which he did not have the burden of proof, Gore
must show that no evidence supports the trial court’s adverse finding. See Exxon
Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 215 (Tex. 2011). Evidence is
legally sufficient if it would permit reasonable and fair-minded people to reach the
finding under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).
We credit favorable evidence if a reasonable fact finder could do so and we
disregard contrary evidence unless a reasonable fact finder could not do so. Id.
B. Application
We begin with a review of the evidence and testimony at the garnishment
hearing.
Pacific introduced into evidence the 2015 final judgment in the Lease
Lawsuit, which ordered that Pacific recover $268,797 in damages as well as
attorney’s fees, pre- and post-judgment interest, and court costs from the
defendants (including Gore), jointly and severally. Pacific called its executive vice
president as a witness and he testified that the 2015 final judgment was owned by
Pacific and that no amount had been paid towards the judgment.
Pacific also called Klement as a witness. Klement testified that he was
appointed by the trial court to serve as the Seafood Companies’ liquidating
manager. Klement stated that he had been disposing of the Seafood Companies’
9
assets, using those funds to pay the Companies’ creditors, and distributing the
remaining funds to Gore and his two brothers. Klement stated that, under the
terms of the applicable settlement agreement, Gore was entitled to a 38% share of
the distributions.
Admitted into evidence during Klement’s testimony was an email sent on
November 1, 2017 from Klement to Gore, Gore’s brothers, and the brothers’
attorney. The email states:
Wright Gore, through his attorney, requested a distribution of
$300,000.00 of the remaining funds.
I currently have on hand approximately $345,000.00.
There is a proposed settlement of the personal injury case filed against
Western Seafood arising out of the injury of a seaman on one of the
boats.
In addition I am sure there are outstanding attorney’s fees for that
case. [I]n order to maintain adequate funds on hand I propose to
distribute $250,000.00 on the same proportionate basis as past
distributions.
If there is any opposition let me know ASAP.
Otherwise I intend to make the distribution on Friday.
The email is signed “Lynn Klement.” Klement testified that he was served with
Pacific’s writ of garnishment on November 2, 2017, the day after sending the
proposed distribution email. Klement stated that he chose not to proceed with the
distribution “until [he] had further directions from Court.”
We conclude that legally sufficient evidence supports the trial court’s
findings regarding the debt Klement owed Gore. Gore specifically challenges the
findings necessary to support the ordered garnishment — that the garnishee was
indebted to the judgment debtor at the time of service of the writ and at the time
the garnishee filed his answer. See 24/7 Grill, LLC, 2014 WL 1410210, at *2.
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Here, the evidence shows:
• The 2015 final judgment in the Lease Lawsuit entitled Pacific to
recover from Gore and other defendants, jointly and severally,
$268,797 in damages.
• Klement was the court-appointed liquidating manager for the Seafood
Companies. In that capacity, Klement disposed of the Seafood
Companies’ assets and distributed the funds received to the
Companies’ creditors and to Gore and his two brothers. Klement
stated that Gore was entitled to a 38% share of the distributions.
• Klement acknowledged (and his November 1, 2017 email showed)
that he planned to make a $250,000 disbursement of the Seafood
Companies’ assets to Gore and his brothers.
• Klement testified that Gore would be entitled to 38% of this
distribution, which equals $95,000.
• The writ of garnishment was served on Klement on November 2,
2017, and Klement filed his answer on November 21, 2017.
• Klement chose to delay the distribution until he received direction
from the trial court with respect to the writ of garnishment.
This evidence would permit a reasonable and fair-minded fact finder to reach the
challenged findings, namely, that Klement was indebted to Gore on the date the
writ of garnishment was served and on the date Klement filed his answer. See City
of Keller, 168 S.W.3d at 827; 24/7 Grill, LLC, 2014 WL 1410210, at *2.
We overrule Gore’s second issue.
III. Challenging the Disposition of the Master Lease Agreement’s Collateral
is an Impermissible Collateral Attack on the Lease Lawsuit’s Final
Judgment.
In his motion to dissolve the writ of garnishment, Gore asserted that Pacific
failed to dispose of the collateral car wash equipment in a commercially reasonable
manner. Raising this issue on appeal, Gore contends this alleged failure required
the trial court to dismiss the garnishment action. We review a trial court’s ruling
11
on a motion to dissolve a writ of garnishment for an abuse of discretion. Jacobs,
448 S.W.3d at 631.
Here, Gore’s challenge to the disposition of the car wash equipment is
premised on the master lease and guaranty agreements. These agreements and the
parties’ rights and liabilities thereunder were litigated in the Lease Lawsuit.
Accordingly, we construe Gore’s argument as a collateral attack on the judgment
on which the underlying garnishment was based, namely, the 2015 final judgment
in the Lease Lawsuit. See, e.g., Glassman v. Goodfriend, 347 S.W.3d 772, 778
(Tex. App.—Houston [14th Dist.] 2011, pet. denied).
“The judgment of a court of general jurisdiction is not subject to collateral
attack except on the ground that it had no jurisdiction of the person of a party or his
property, no jurisdiction of the subject matter, no jurisdiction to enter the particular
judgment, or no capacity to act as a court.” Austin Indep. Sch. Dist. v. Sierra Club,
495 S.W.2d 878, 881 (Tex. 1973); see also Glassman, 347 S.W.3d at 778-79. All
errors other than jurisdictional deficiencies render the judgment merely voidable,
and such errors may be corrected only through a direct appeal. PNS Stores, Inc. v.
Rivera, 379 S.W.3d 267, 272 (Tex. 2012). If a judgment is merely voidable, it
may not be collaterally attacked. Id. at 271-72.
Gore’s challenge regarding the disposition of the master lease agreement’s
collateral is not premised on the Lease Lawsuit’s final judgment being void for
lack of jurisdiction; rather, Gore is attacking the underlying merits of the final
judgment. This challenge constitutes an impermissible collateral attack on the
2015 final judgment. See PNS Stores, Inc., 379 S.W.3d at 272; Glassman, 347
S.W.3d at 778-79. The trial court therefore did not abuse its discretion in
overruling Gore’s motion to dissolve the writ of garnishment. See Jacobs, 448
S.W.3d at 631.
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We overrule Gore’s challenge to the disposition of the master lease
agreement’s collateral.
IV. The Master Lease and Guaranty Agreements’ Forum Selection Clauses
Did Not Deprive the Trial Court of Jurisdiction.
Four of Gore’s eight issues on appeal challenge the trial court’s jurisdiction
based on the master lease and guaranty agreements’ forum selection clauses.3 The
master lease agreement contains the following clause:
Governing Law; Waiver of Trial by Jury. THIS LEASE (AS
DEFINED IN THE EXHIBIT A HERETO) SHALL IN ALL
RESPECTS BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF UTAH,
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY
AND PERFORMANCE. THE PARTIES AGREE TO SUBMIT TO
THE EXCLUSIVE JURISDICTION OF THE STATE OF UTAH;
ANY SUIT OR OTHER PROCEEDING BROUGHT BY EITHER
PARTY TO ENFORCE OR CONSTRUE THIS LEASE (AS
DEFINED IN THE EXHIBIT A HERETO), OR TO DETERMINE
MATTERS RELATING TO THE PROPERTY OR THE
RELATIONSHIP BETWEEN THE PARTIES HERETO SHALL BE
BROUGHT ONLY IN THE STATE OR FEDERAL COURTS IN
THE STATE OF UTAH. THIS LEASE WAS EXECUTED IN THE
STATE OF UTAH (BY THE LESSOR HAVING
COUNTERSIGNED IT IN UTAH) AND IS TO BE PERFORMED
IN THE STATE OF UTAH (BY REASON OF ONE OF MORE
PAYMENTS REQUIRED TO BE MADE TO LESSOR IN UTAH).
LESSOR AND LESSEE HEREBY WAIVE THE RIGHT TO TRIAL
BY JURY OR ANY MATTERS ARISING OUT OF THE LEASE
3
Specifically, Gore raises the following three issues challenging the garnishment
proceeding: (1) the trial court erred in not dismissing the writ of garnishment because the
agreements’ forum selection clauses required the action be brought in Utah; (2) the trial court
erred in overruling Gore’s plea to the jurisdiction because the agreements conferred exclusive
jurisdiction on Utah’s courts; and (3) the Utah Supreme Court previously has held that an action
may be brought in violation of a forum selection clause only if the plaintiff proves there was an
acceptable reason for the clause’s non-enforcement. The fourth issue arises with respect to the
turnover proceeding, where Gore asserts the trial court “had no jurisdiction to do anything except
to dismiss the case for lack of jurisdiction.”
13
OR PROPERTY OR THE CONDUCT OF THE RELATIONSHIP
BETWEEN LESSOR AND LESSEE.
The guaranty agreement contains the following provision:
Applicable Law; Costs of Enforcement. Guarantor agrees that this
Guaranty shall be governed by and construed in accordance with the
substantive law of the state of Utah and that the exclusive jurisdiction
of any dispute shall be in the Utah state or federal courts. Guarantor
submits itself to such jurisdiction.
Gore asserts these forum selection clauses deprived the trial court of jurisdiction in
the garnishment and turnover proceedings. In the garnishment proceeding, Gore
raised this issue in a motion to dismiss for lack of jurisdiction; in the turnover
proceeding, Gore asserted the issue in a plea to the jurisdiction. The trial court
overruled Gore’s motion and plea.
“A motion to dismiss based on lack of subject matter jurisdiction is the
functional equivalent of a plea to the jurisdiction challenging the trial court’s
authority to determine the subject matter of a cause of action.” Smalley v. Smalley,
436 S.W.3d 801, 805 (Tex. App.—Houston [14th Dist.] 2014, no pet.). We
therefore review the trial court’s rulings on Gore’s plea and motion de novo. See
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004);
Smalley, 436 S.W.3d at 805.
We overrule Gore’s jurisdictional challenges based on the master lease and
guaranty agreements’ forum selection clauses. A “common-sense examination of
the substance” of Pacific’s claims shows the clauses are not applicable to the
underlying proceedings. See In re Int’l Profit Assocs., Inc., 274 S.W.3d 672, 677-
78 (Tex. 2009) (orig. proceeding) (per curiam). Pacific initiated the underlying
proceedings by filing (1) an application for post-judgment writ of garnishment
against Klement and (2) an application for post-judgment turnover and
14
appointment of receiver. These applications stated relief was sought to satisfy the
2015 final judgment rendered in the Lease Lawsuit. These applications did not
invoke the master lease and guaranty agreements and neither proceeding
adjudicated the parties’ rights and liabilities under the agreements — rather, these
issues previously were litigated in the Lease Lawsuit. Because the garnishment
and turnover proceedings were based solely on a liability owed pursuant to the
2015 final judgment in the Lease Lawsuit, Gore cannot invoke the master lease and
guaranty agreements’ forum selection clauses to secure a dismissal. See id.; cf. In
re Weekley Homes, L.P., 180 S.W.3d 127, 131-32 (Tex. 2005) (orig. proceeding).
We overrule Gore’s jurisdictional challenges to the underlying proceedings.
V. Gore Waived his Choice-of-Law Issue.
In his final issue, Gore asserts the trial court erred by “ordering a turnover
order without regard to the laws of the state of Utah which had been selected by
the parties in the written agreements between them.” Gore did not raise this issue
in the trial court.
A choice-of-law provision does not implicate the trial court’s subject matter
jurisdiction and may be waived. See, e.g., DaimlerChrysler Motors Co. v. Manuel,
362 S.W.3d 160, 196-97 (Tex. App.—Fort Worth 2012, no pet.); Entergy Gulf
States, Inc. v. Pub. Util. Comm’n of Tex., 173 S.W.3d 199, 210 (Tex. App.—
Austin 2005, pet. denied). By failing to raise this issue in the trial court, Gore did
not preserve it for our review. See DaimlerChrysler Motors Co., 362 S.W.3d at
196-97; Entergy Gulf States, Inc., 173 S.W.3d at 210. Moreover, like the
jurisdictional challenges discussed above, Gore’s choice-of-law challenge relies on
the master lease and guaranty agreements, which are outside the scope of the
underlying proceedings.
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We overrule Gore’s choice-of-law issue.
CONCLUSION
We overrule Gore’s issues on appeal and affirm both the trial court’s March
5, 2018 final judgment in the garnishment proceeding and its March 5, 2018 order
in the turnover proceeding.
/s/ Meagan Hassan
Justice
Panel consists of Justices Wise, Jewell, and Hassan.
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