Buller v. Beaumont Bank, N.A.
| Decision Date | 31 August 1989 |
| Docket Number | No. 09-88-175-CV,09-88-175-CV |
| Citation | 777 S.W.2d 763 |
| Parties | Patricia H. BULLER, Individually and as Legal Representative of the Estate of Paul Buller, Appellant, v. BEAUMONT BANK, N.A., Appellee. |
| Court | Texas Court of Appeals |
This is an appeal from a post-judgment turnover order which ordered appellant to turn over $97,661.24 cash for levy to the Jefferson County Sheriff in partial satisfaction of the judgment appellee obtained in the same proceeding.
A turnover order where the court intended to exercise control over what was to be deposited, and where no funds would be turned over without further court order, and the amount to be credited for the property to be turned over was left for later determination, is not a final, appealable judgment. In re Brecheisen, 665 S.W.2d 191 (Tex.App.--Dallas 1984, writ ref'd n.r.e.). This case is distinguishable in that appellant was ordered to turn over a sum certain in cash for levy to the Jefferson County Sheriff at a specific time and place. All matters involved in the proceeding were resolved, leaving only ministerial duties to be performed; thus the proceedings are final. Samuels v. Finkelstein, 25 S.W.2d 923 (Tex.Civ.App.--Beaumont 1930, writ dism'd).
Appellant's first point of error states: "The trial court committed fundamental error in refusing appellant's timely request for separate trial by jury on substantive issues raised in the evidentiary, non-jury hearing." Appellant sets forth as fact issues the existence and ownership of the funds and whether the funds could be reached by a turnover order. Specifically, appellant argued that she held a community property interest in the funds, that she was entitled to certain exemptions provided by TEX.PROB.CODE ANN. sec. 286-293 (Vernon 1980), and that the estate fund was exhausted.
TEX.CIV.PRAC. & REM.CODE ANN. sec. 31.002(a) (Vernon 1986) aids judgment creditors in reaching property of the judgment debtor that cannot readily be attached and is not exempt. The trial court has jurisdiction to decide if property of the judgment debtor is not exempt. Pace v. McEwen, 617 S.W.2d 816 (Tex.Civ.App.--Houston [14th Dist.] 1981, no writ). The judgment debtor is entitled to trial on the merits on disputed fact issues. Steenland v. Texas Commerce Bank, 648 S.W.2d 387 (Tex.App.--Tyler 1983, writ ref'd n.r.e.); United Bank Metro v. Plains Overseas Group, Inc., 670 S.W.2d 281 (Tex.App.--Houston [1st Dist.] 1983, no writ). On timely request and payment of the jury fee, the respondent is entitled to jury trial of fact issues, including the issue of the existence of the asset which is the subject of the turnover proceeding.
The record in this cause reflects the motion for turnover relief was filed on November 23, 1987; the attorney for the estate received the motion before December 1, 1987; appellant filed responses to the motion January 7, 1988; the hearing on the motion began January 7, 1988, and was recessed to February 8, 1988, which is the hearing date stated on the order. A jury trial was requested in the response filed January 7, 1988. The jury fee was paid February 18, 1988.
The right to trial by jury is not absolute but is dependent on written request and payment of the jury fee a reasonable time before the date set for trial of the cause on the non-jury docket, but not less than thirty days in advance. TEX.R.CIV.P. 216. The time limitations of Rule 216 apply with equal force to application for jury trial and payment of the jury fee. Huddle v. Huddle, 696 S.W.2d 895 (Tex.1985). Having failed to meet these requirements for entitlement to jury trial, appellant cannot complain on appeal of the court's refusal to submit fact issues to a jury.
Appellant's second and third points of error argue that the trial court's findings that the estate is the owner of $97,661.24 cash held by Patricia Buller is not supported by the evidence. The uncontroverted testimony of Patricia Buller and the attorney for the estate was that there was no cash in the estate on the date of the hearing. While there was evidence that Patricia Buller possessed assets and cash in excess of $100,000.00, appellee produced no evidence that as of the date of the hearing the judgment debtor/estate owned or possessed $97,661.24 cash or that Patricia Buller possessed or held $97,661.24 owned or possessed by the judgment debtor/estate. Patricia Buller was not a judgment debtor in her individual capacity; appellee could only obtain an order for her to turn over estate assets. Because there is no evidence of the existence of the asset which is the subject of the turnover, the judgment of the trial court must be reversed.
Reversed.
After a hearing on or about March 14, 1988, a post-judgment turnover was issued by the district court in favor of the Appellee Bank to enforce and attempt to collect a judgment against the Estate of Paul Buller, Deceased, and Patricia Buller, as Independent Executrix of the said estate. The trial court signed an order reading in relevant part:
"... [T]hat Patricia H. Buller, Legal Representative of the estate of Paul Buller, and Patricia H. Buller, Individually, turn over $97,661.24 cash for levy to the Jefferson County Sheriff at the Jefferson County Courthouse, 1149 Pearl, Beaumont, Texas, on or before 4:00 p.m. on March 28th, 1988."
This order was suspended as to its enforcement pending this appeal. The Beaumont Bank holds and owns an unsatisfied judgment in excess of the amount of the turnover order.
Mr. Paul Buller died on October 25, 1985. Before his demise, Mr. Buller had incurred $199,553.09 in debt by way of a promissory note to the Beaumont Bank. Mrs. Buller, his wife, was named as independent executrix of the estate in his Will, qualifying as such on November 12, 1985. The estate of Mr. Buller was initially represented by another attorney at law. In the early part of December 1985 the present counselor became the attorney for the estate and Mrs. Buller continued as a personal representative of the estate.
Some time in the early part of December 1985, $99,736.99 was transferred out of an account at the First State Bank of Lumberton into a special trust account of the Honorable Marshall Rea. It is shown that the statement of facts before us are of a proceeding conducted on February 8, 1988. It is also clear that there had been a prior proceeding on this matter conducted on January 7, 1988. It was admitted that on February 28, 1986, the then-attorney for the estate who still represents the estate transferred the then-balance in the State Bank of Lumberton in the amount of $101,590.74 to his personal trust account No. 5. The increase represented interest earned.
On Mrs. Buller's specific instructions the attorney of record on two occasions had transferred money. On December 23, 1985, he had transferred $10,000.00 to the account of Brad and Vicki Mansfield and on February 6, 1986, he transferred $17,000.00 to the account of L & M Motors. There was another transfer of $20,000.00 to the account of L & M Motors on February 20, 1986. These transfers were made on specific verbal instructions from Mrs. Buller.
Some time after February 28, 1986, another series of transfers were made. These transfers were made also in accordance with specific instructions from the executrix. A total of $103,661.24 was transferred by wire from Marshall Rea's trust account No. 5 on the instructions of Mrs. Buller. The expenses of Mr. Buller's last illness were paid out of other funds. With the exception of two attorney's fees, the monies paid out did not have a connection with the estate. They were certainly not used to pay fully the just debts of the decedent's estate. Of significance is an exhibit in the record that shows in considerable detail how many of the cash disbursements were made. Virtually all of these cash disbursements were made by cashier's check. There were also a number of personal mortgage payments made. Significant and crucial is that phase of the record that clearly discloses that Mrs. Buller had no records or professed to have no records of what happened to the various large sums and funds after they were delivered to her or to her designees.
At the hearing on January 7, 1988, of which we have no transcription of the court reporter's notes, the district court ordered Mrs. Buller to bring any and all records that she had of what happened to the large sums of money, exceeding $100,000.00, after she received these sums or directed their outlays. She was definitely to bring these records to the hearing on February 8, 1988; but she brought only one record or receipt. The $17,000.00 receipt was the only record brought by the Appellant. At the second hearing it was clearly demonstrated that virtually all of the funds of the estate of Paul Buller, deceased, had been totally unaccounted for, but totally disbursed. No bank account for the estate had been opened. The record proves that the great bulk of the estate was $100,000.00 in the First State Bank of Lumberton, patently in the form of a C.D. This $100,000.00 was transferred into Mr. Rea's personal trust account as set out above, the independent executrix having failed to establish a bank account in the name of and for the estate.
From the record it is glaringly clear that the $100,000.00 in the First State Bank of Lumberton was an asset of the estate of Paul Buller. It was a C.D. being numbered 3471. In the inventory, appraisement and list of claims of the estate, the executrix Patricia H. Buller swore that these facts were true and correct, the $100,000.00 C.D. being listed as community property cash. The record is undisputed that Mr. Rea acted at all times as an attorney for the personal representative of the estate and that the money that was dealt with and disbursed was a...
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Beaumont Bank, N.A. v. Buller
...The court of appeals reversed, holding there was "no evidence of the existence of the asset which is the subject of the turnover." 777 S.W.2d 763, 765. The issue presented to this court is whether the court of appeals properly reversed the trial court on "no evidence" grounds. For the reaso......
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Ex parte Buller
...Buller, in her several capacities, appealed the turnover order. The Ninth Court of Appeals reversed. Buller v. Beaumont Bank, N.A., 777 S.W.2d 763 (Tex.App.--Beaumont 1989). One justice dissented. Then on April 3, 1991, the Texas Supreme Court reversed the Court of Appeals and affirmed the ......