Holt v. Sakowitz, Inc., No. 01-05-01194-CV (Tex. App. 4/27/2007)
| Decision Date | 27 April 2007 |
| Docket Number | No. 01-05-01194-CV.,01-05-01194-CV. |
| Parties | WILLIAM GREGORY HOLT, Appellant<SMALL><SUP>1</SUP></SMALL> v. SAKOWITZ, INC., Appellee.<SMALL><SUP>2</SUP></SMALL> |
| Court | Texas Court of Appeals |
Panel consists of Justices TAFT, KEYES, and HANKS.
Appellant, William Gregory Holt, appeals from a post-judgment turnover order, signed November 28, 2005, entered in favor of ," appellee. We determine (1) whether we have jurisdiction over the appeal; (2) whether Cedyco Corporation ("Cedyco") proved that it had standing to enforce a judgment in Sakowitz, Inc.'s favor; (3) whether Cedyco proved that the judgment was not dormant; and (4) whether the turnover order was worded too broadly and was not supported by evidence of the substantive and probative character of the property listed in it. We reverse the order, in part, and remand the cause with instructions for the trial court to vacate its turnover order signed November 28, 2005 to the extent that it concerns William Gregory Holt.
On October 24, 2005, Cedyco filed an application for a turnover order to enforce a judgment that Cedyco had purchased from Claron Corporation ("Claron") and that Claron had purchased from the original judgment creditor, Sakowitz, Inc. ("Sakowitz"). The judgment was in the principal amount of $7,250.50 against Holt and his former wife, Gay Holt. That judgment was rendered in the county civil court at law number one in Harris County, Texas on March 17, 1988.3 On September 16, 2005 and September 19, 2005, Cedyco filed in the trial court two records of assignment, which evidenced that Claron and Cedyco were assignees of the Sakowitz final judgment.
On November 28, 2005, the trial court conducted a hearing and signed an order granting Cedyco's application for turnover. Holt's counsel was not present at the hearing because he was in trial in another county.4 The November 28 turnover order appointed Ray Cain as the receiver and gave him the power and authority to "take possession of and sell the nonexempt property, real and personal, of [Holt] . . . ." It was ordered that the receiver have at his discretion the fullest and broadest powers, which included (1) ordering the production before him of evidence upon all matters pertaining to Holt's compliance with the November 28 turnover order, the assets, the location of assets, the value of assets, and all other financial matters pertaining to Holt; (2) scheduling hearings and directing all parties and witnesses to give testimony at such hearings and to rule upon the admissibility of evidence at such hearings; and (3) placing witnesses under oath and examining them himself.5
Holt was ordered to turn over to the receiver all checks, cash securities, promissory notes, documents of title, and contracts that he owned; however, the order did not list any specific assets that Holt was required to turn over. The order decreed that the receiver was "authorized to take all action necessary to gain access to all storage facilities, safety deposit boxes, real property and leased premises and personal property wherein any property may be situated" and had the following "rights, authority and power with respect to" Holt's property: (1) to collect all accounts receivable, royalties, rents, franchise fees, returns on securities, note payments, and contractual payments and to enter into compromise and settlement agreements to effectuate the collection thereof; (2) to change locks to all premises at which any property was situated or likely to be situated and to all real or personal property leased or owned by Holt, including his place of residence; (3) to open all mail directed to Holt, together with the right to redirect his mail to the receiver's address; (4) to hire a real-estate broker to sell or to lease any real property or mineral interest belonging to Holt; (5) to endorse and to cash all checks and negotiable instruments payable to or belonging to Holt; (6) to hire a business broker to sell Holt's businesses; (7) to insure any property belonging to Holt; (8) to obtain from any financial institution, bank, credit union, or savings and loan association any financial records belonging to or pertaining to Holt; (9) to hire any person or company to move and to store Holt's property; (10) to hire any person or company to accomplish any right or power under the November 28 turnover order; (11) to settle or to direct any litigation leading to the potential recovery of money or assets; (12) to disable equipment or other assets belonging to, leased by, or owned by Holt; (13) to initiate and to conduct the course of litigation to recover any debts, damages, or property belonging to Holt; (14) to withdraw funds from Holt's financial accounts; and (15) to take complete control and possession of Holt's assets to the exclusion of all persons, including Holt.
On December 5, 2005, Holt filed a "Motion to Set Aside Order of November 28, 2005." On December 14, 2005, the trial court held a hearing on Holt's motion to reconsider. No evidence was introduced at this hearing. On January 19, 2006, the trial court denied Holt's motion to reconsider, appointed a master-in-chancery, and ordered that all activities of the receiver temporarily cease pending the master-in-chancery's investigation into the extent of Holt's non-exempt property.6 In response, Holt filed a petition for writ of mandamus in this Court. On June 8, 2006, this Court conditionally granted Holt's petition for writ of mandamus, holding that the trial court abused its discretion by appointing a master-in-chancery. See In re William Gregory Holt, No., 01-06-00290-CV, 2006 WL 1549968, at *3 (Tex. App.-Houston [1st Dist.] June 8, 2006, orig. proceeding) (memo. op.). This Court directed the trial court to vacate its January 19 order appointing a master-in-chancery and any other ancillary orders.7 On December 22, 2005, Holt filed a notice of appeal from the November 28 turnover order, which is the matter now before this Court.8
We review a turnover order and an appointment of a receiver under an abuse-of-discretion standard of review. See Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991) (); Matz v. Bennion, 961 S.W.2d 445, 452 (Tex. App.-Houston [1st Dist.] 1997, pet. denied) (). We reverse a trial court for abusing its discretion only if we find that the court acted in an unreasonable or arbitrary manner. Buller, 806 S.W.2d at 226. That is, an abuse of discretion occurs when a trial court acts "without reference to any guiding rules and principles." Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). A corollary principle is that we may not reverse for abuse of discretion merely because we disagree with a decision of the trial court, if that decision was within the trial court's discretionary authority. Id. at 242. A trial court's issuance of a turnover order, even if predicated on an erroneous conclusion of law, will not be reversed for abuse of discretion if the judgment is otherwise sustainable for any reason.
Initially, Cedyco challenges this Court's jurisdiction, alleging that the November 28 turnover order, titled "Order Appointing Receiver and Order of Turnover," was not final and thus could not have been appealed because it did not dispose of all issues between the parties.
The trial court appointed a receiver "with the power and authority to take possession of and sell the nonexempt property, real and personal, of [Holt]" and ordered Holt to produce documents to that receiver. The trial court ordered Holt "to turnover to the Receiver . . . all checks, cash securities, promissory notes documents of title and contracts owned by or in the name of [Holt]." Cedyco contends that the effect of the November 28 turnover order was "stayed" as a result of the January 19 order appointing a master-in-chancery. Cedyco argues, "In the instant case, no property issues were resolved by the Turnover Order as it merely required Holt to turn over financial records to a receiver."
Turnover orders are final, appealable orders. Burns v. Miller, Hiersche, Martens & Hayward, P.C., 909 S.W.2d 505, 506 (Tex. 1995). This is because turnover orders dispose of "all the parties and all the issues, leaving nothing for further decision except as necessary to carry the decree into effect." Starr v. Starr, 690 S.W.2d 86, 88 (Tex. App.-Dallas 1985, no writ) (citing Hargrove v. Ins. Inv. Corp., 176 S.W.2d 744, 747 (Tex. 1944)); see Wilkins v. State Farm Mut. Auto. Ins. Co., 58 S.W.3d 176, 180 (Tex. App.-Houston [14th Dist.] 2001, no pet.).
Despite this general rule, Cedyco relies on Arndt v. Farris and Fisher v. P.M. Clinton for its appellate jurisdictional challenge. See Arndt v. Farris, 633 S.W.2d 497, 500 n.5 (Tex. 1982) (); Fisher v. P.M. Clinton Int'l Investigations, 81 S.W.3d 484, 485 (Tex. App.-Houston [1st Dist.] 2002, no pet.) ( for want of jurisdiction because trial court's post-judgment discovery order was not final and appealable order; moreover, other motions were still pending in trial court). These cases are distinguishable from this case because the orders being appealed in Fisher and Arndt were post-judgment discovery orders, not post-judgment turnover orders requiring that the debtors turn over property to a receiver with the authority to take possession of property, to sell it, and to pay the proceeds to the judgment creditor. See Arndt, 633 S.W.2d at 500 n.5; Fisher, 81 S.W.3d at 485.
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