Bahar v. Lyon Financial Serv. Inc.

• Decision Date: 05 November 2010
• Docket Number: No. 03–09–00581–CV.,03–09–00581–CV.
• Citation: Bahar v. Lyon Financial Serv. Inc., 330 S.W.3d 379 (Tex. App. 2010)
• Parties: Valerie Thomas BAHAR, M.D. and Valerie Thomas Bahar, M.D., P.A., Appellants,v.LYON FINANCIAL SERVICES, INC., A Minnesota Corporation d/b/a U.S. Bancorp Manifest Funding Services, Appellee.
• Court: Texas Court of Appeals

330 S.W.3d 379

Valerie Thomas BAHAR, M.D. and Valerie Thomas Bahar, M.D., P.A., Appellants,

v.LYON FINANCIAL SERVICES, INC., A Minnesota Corporation d/b/a U.S. Bancorp Manifest Funding Services, Appellee.

No. 03–09–00581–CV.

Court of Appeals of Texas, Austin.

Nov. 5, 2010.Rehearing Overruled Dec. 22, 2010.

Dr. Joseph R. Willie, II D.D.S., J.D., Willie & Associates, PC, Houston, TX, for Appellants.Matias Eduardo Garcia, Barnett & Garcia, PLLC, Austin, TX, for Appellee.Before Chief Justice JONES, Justices PURYEAR and PEMBERTON.

OPINION

J. WOODFIN JONES, Chief Justice.

In this restricted appeal, appellants Valerie Thomas Bahar, M.D. and Valerie Thomas Bahar, M.D., P.A. (collectively “Bahar”) appeal two post-judgment orders, asserting that the trial court erred in compelling discovery, imposing discovery sanctions on Bahar and her attorney (including assessing attorney's fees), amending a pre-existing turnover order, and denying Bahar's motion for continuance. We will dismiss the appeal in part for lack of subject-matter jurisdiction, reverse the imposition of attorney's fees against Bahar, and otherwise affirm the trial court's orders.

FACTUAL AND PROCEDURAL BACKGROUND

Appellee Lyon Financial Services, Inc., a Minnesota Corporation d/b/a U.S. Bancorp Manifest Funding Services (“Lyon”), obtained a default judgment in Minnesota against Bahar that it later domesticated in Travis County. To aid in enforcing the judgment, the trial court signed a turnover order appointing Riecke Baumann as master in chancery and receiver of Bahar's non-exempt assets. See Tex. Civ. Prac. & Rem.Code Ann. § 31.002 (West 2008) (statute authorizing turnover order and appointment of receiver); Tex.R. Civ. P. 171 (rule authorizing appointment of master in chancery). Attempting to locate Bahar's non-exempt assets, Baumann propounded various written discovery requests on Bahar and also took her deposition. Bahar's counsel objected to numerous discovery requests and terminated her deposition early due to a dispute with Baumann. Baumann filed a motion to compel and a motion to amend the turnover order to expand his investigative powers. Baumann also requested attorney's fees for the time he spent drafting and arguing both motions. Baumann scheduled these motions for hearing. Asserting that her attorney had a scheduling conflict, Bahar moved to continue the hearing on Baumann's motions, but did not set her motion for continuance for hearing or otherwise submit the motion to the trial court for a ruling. The hearing, which Baumann and counsel for Lyon attended but Bahar and her attorney did not, proceeded as scheduled. At the hearing, the court granted Baumann's motions and denied Bahar's motion for continuance. The court later memorialized its grant of Baumann's motions in two orders, but did not reduce to writing its oral denial of Bahar's motion for continuance. Bahar initially sought mandamus relief from the court's rulings, which this Court denied. See In re Bahar, No. 03–09–00359–CV, 2009 WL 2437222, at *1 (Tex.App.-Austin July 28, 2009, orig. proceeding [mand. denied] ) (mem. op.). After we denied her petition for mandamus, Bahar filed this restricted appeal.

STANDARD OF REVIEW

To prevail on a restricted appeal, the appealing party must establish that: (1) it filed notice of the restricted appeal within six months after the judgment was signed; (2) it was a party to the underlying lawsuit; (3) it did not participate in the hearing that resulted in the judgment complained of and did not timely file any postjudgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record. Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex.2004) (citing Tex.R. App. P. 26.1(c), 30; Quaestor Invs., Inc. v. State of Chiapas, 997 S.W.2d 226, 227 (Tex.1999)). We cannot consider any extrinsic evidence; our review is limited to the face of the record. Id. “The face of the record, for purposes of a restricted appeal, consists of all the papers that were before the trial court when it rendered its judgment.” Cox v. Cox, 298 S.W.3d 726, 731(Tex.App.-Austin 2009, no pet.) (citing Alexander, 134 S.W.3d at 848–49).

DISCUSSION

In five issues, Bahar asserts that (1) she “can prevail on [her] restricted appeal”; (2) the trial court abused its discretion in denying her motion for continuance; (3 & 4) the order compelling discovery is “void as a matter of law” or, alternatively, the trial court abused its discretion in granting Baumann's motion to compel; and (5) the trial court abused its discretion in rendering the amended turnover order. In response, Lyon argues that this Court lacks subject-matter jurisdiction over Bahar's appeal because there is no “final judgment” as that term is understood in the context of a post-judgment receivership proceeding. In the alternative, Lyon asserts that Bahar's restricted appeal should fail because Bahar (1) “participated” in the proceeding resulting in the orders on appeal, and (2) failed to show error on the face of the record. Lyon also requests that we impose sanctions against Bahar's counsel for filing a frivolous appeal.

Does this Court Have Jurisdiction over Bahar's Appeal?

Generally, appellate courts have jurisdiction only over appeals from “final judgments” and certain appealable interlocutory orders. Lehmann v. Har–Con Corp., 39 S.W.3d 191, 200 (Tex.2001); Tex. Civ. Prac. & Rem.Code Ann. § 51.014 (West 2008) (listing appealable interlocutory orders). In the present case, the domesticated Minnesota judgment is the “final judgment” between the parties, as it disposes of all claims and all parties in the underlying lawsuit. See Lehmann, 39 S.W.3d at 200; see also Tex.R. Civ. P. 301 (“Only one final judgment shall be rendered in any cause except where it is otherwise specially provided by law.”). Although the orders appealed here were rendered in proceedings held in aid of satisfying that judgment and thus do not fit into Lehmann's conventional final-judgment analysis, we are not without guidance.

(i) Turnover/Receivership Order

Although most writs and orders in aid of execution are not appealable, the supreme court has held that a turnover order is a final, appealable judgment. Schultz v. Fifth Judicial Dist. Court of Appeals, 810 S.W.2d 738, 740 (Tex.1991), abrogated on other grounds by In re Sheshtawy, 154 S.W.3d 114, 124–25 (Tex.2004); see also Burns v. Miller, Hiersche, Martens & Hayward, P.C., 909 S.W.2d 505, 506 (Tex.1995) (per curiam) (holding that appellate court erred in applying interlocutory appellate deadlines to appeal from turnover order “because a turnover order is a final, appealable judgment”). We also have jurisdiction over a trial court order “that resolves a discrete issue in connection with any receivership.” Huston v. Federal Deposit Ins. Corp., 800 S.W.2d 845, 847 (Tex.1990) (“pre-judgment” receivership proceeding). Further, we and our sister courts have exercised jurisdiction over the post-judgment appointment of a receiver when that appointment was made pursuant to the turnover statute. See Moyer v. Moyer, 183 S.W.3d 48, 51 (Tex.App.-Austin 2005, no pet.); see also Stanley v. Reef Sec., Inc., 314 S.W.3d 659, 670 (Tex.App.-Dallas 2010, no pet.); Suttles v. Vestin Realty Mortgage I, Inc., 317 S.W.3d 412, 415–17 (Tex.App.-Houston [1st Dist.] 2010, no pet.) (mem. op.).

Lyon concedes that we would have had jurisdiction over an appeal from the initial turnover order that was rendered in 2007 if Bahar had timely appealed that order. See Valerie Thomas Bahar, M.D., P.A. v. Lyon Fin. Servs., Inc., No. 03–07–00469–CV, 2009 WL 2341864, at *4 (Tex.App.-Austin July 28, 2009, no pet.) (mem. op.) (dismissing Bahar's appeal of turnover order for failure to timely perfect appeal). Lyon argues, however, that because the amended turnover order at issue here merely “clarif[ies] the existing receiver's powers, adjusting for the intransigence of [Bahar],” we do not have jurisdiction over it. Alternatively, Lyon appears to argue that we have jurisdiction only over complaints about the new provisions of the amended turnover/receivership order, i.e., provisions that were not also present in the prior order.

Although styled as an “amended turnover order,” the 2009 order from which the present appeal is taken is really the “second amended” turnover order in the case. The original turnover order was rendered in 2007 and was not timely appealed to this Court, as noted above. The second order (the “first amended”) was rendered in May 2008 and was not appealed.¹ The 2008 amended turnover order was, in turn, amended by the 2009 order at issue here. The 2009 order is virtually identical to the 2008 order. The only changes are the addition of several new provisions (1) expressly authorizing the receiver to bring contempt proceedings before the court, (2) ordering Bahar to produce records of her payments to her attorneys “since the first turnover order was granted,” (3) ordering Bahar to turn over all tax refunds to the receiver, (4) requiring Bahar to notify the receiver of any interests she has in any probate estates, and (5) awarding Baumann attorney's fees “for obtaining this order.”

A post-judgment turnover order is a “procedural device by which judgment creditors may reach assets of a debtor that are otherwise difficult to attach or levy on by ordinary legal process.” Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 224 (Tex.1991). A turnover order

requires the debtor to bring to the court all documents or property used to satisfy a judgment. The actual effect of the [turnover statute] is to require the burden of production of property which is subject to execution to be placed with the debtor instead of a creditor attempting to satisfy his judgment.

Id. at 226. It is because a turnover order “acts as a mandatory injunction against the judgment debtor” that it is reviewable on appeal. Schultz, 810 S.W.2d at 740; see also Kennedy v. Hudnall, 249 S.W.3d...