Turner Bros. Trucking, L.L.C. v. Baker

• Decision Date: 21 February 2013
• Docket Number: No. 05–10–00882–CV.,05–10–00882–CV.
• Court: Texas Court of Appeals
• Parties: TURNER BROS. TRUCKING, L.L.C., Appellant v. Kristal M. BAKER, Individually and d/b/a K & D Logistics Co., Clifford Dwayne Jacks, Individually and d/b/a K & D Logistics Co., s/w Quality Hay, LLC, and C.D. Jacks, Inc., Appellees.

396 S.W.3d 672

TURNER BROS. TRUCKING, L.L.C., Appellant

v.Kristal M. BAKER, Individually and d/b/a K & D Logistics Co., Clifford Dwayne Jacks, Individually and d/b/a K & D Logistics Co., s/w Quality Hay, LLC, and C.D. Jacks, Inc., Appellees.

No. 05–10–00882–CV.

Court of Appeals of Texas,

Dallas.

Feb. 21, 2013.

Charles “Chad” Baruch, Rowlett, TX, Stephen E. Kaplan, Dallas, TX, for Appellants.

Frederick Thomas Dunbar, Abilene, TX, for Appellees.

Before Justices BRIDGES, O'NEILL, and FILLMORE.

OPINION

Opinion By Justice BRIDGES.

Turner Bros. Trucking, L.L.C. appeals the trial court's order granting in part Turner's application for a turnover order. In three issues, Turner argues the trial court abused its discretion in refusing to appoint a receiver, erred in concluding it lacked legal authority to order turnover of certain life insurance proceeds, and abused its discretion in failing to award attorney's fees. We reverse the trial court's denial of attorney's fees and remand for a determination of Turner's reasonable attorney's fees. In all other respects, we affirm the trial court's judgment.

In July 2007, Turner sued Kristal M. Baker, individually and d/b/a K & D Logistics Co., Clifford Dwayne Jacks, individually and d/b/a K & D Logistics Co., SAV Quality Hay, LLC, and C.D. Jacks, Inc., alleging claims of breach of contract, fraud, violations of the DTPA, theft of services, quantum meruit, unjust enrichment, conspiracy, alter ego, declaratory judgment, punitive damages, and sworn account claims. The petition alleged Baker and Jacks were co-owners of K & D and, among other things, acted as an agent for their clients in transporting goods and merchandise. In December 2006, Turner entered into a broker's agreement with Baker and Jacks, individually and doing business as K & D, a motor freight transport company. Under the terms of the agreement, Turner was to invoice approved customers for transportation services, receive payment, and pay K & D a commission. One customer was SAV Quality Hay. Among other things, Turner alleged SAV Quality Hay refused to pay Turner for transportation services because it considered itself K & D's customer, not Turner's customer. On February 23, 2009, the trial court entered an interlocutory summary judgment in favor of Turner awarding Turner damages on several of its claims, plus attorney's fees. Following the parties' working out of certain cross-claims, the trial court entered final judgment in favor of Turner against SAV Quality Hay, among others, on November 4, 2009.

In March 2010, Turner filed an application for turnover by which Turner sought to join, “whether by notice or other legal process,” the former managers and members of SAV Quality Hay, identified as Janice Stevens, Richard Woods, and Shirley Woods. The application alleged post-judgment discovery revealed Janice Stevens, Richard Woods, and Shirley Woods had taken out life insurance policies on the lives of Richard Woods and Mark Stevens, the deceased husband of Janice Stevens. The application alleged the insurance policies were acquired with monies from SAV Quality Hay, but the members and managers agreed “to specifically have the policy on the life of Mark Stevens owned by Janice Stevens and the policy on Richard Woods, owned by Shirley Woods, even though [SAV Quality Hay] was paying all of the premiums.” In addition, the members and managers of SAV Quality Hay “had agreed at the time of the acquisition of the policies that Janice Stevens and Richard Woods would be the beneficiaries of the policy on Mark Stevens' life and Shirley Woods would be the beneficiary of the policy on Richard Woods' life.” Shortly after the life insurance policies were acquired, Mark Stevens passed away, and the $500,000 death benefit was payable in the amounts of $300,000 to Janice Stevens and $200,000 to Richard Woods. The members and managers “divided up the proceeds of the policy, except that they used a small portion of the proceeds to pay off all the known creditors of [SAV Quality Hay], except [Turner].”

At the hearing on the turnover application, Turner argued the Woods paid $53,511.98 to trade creditors of SAV Quality Hay, and Janice Stevens paid off a tractor that belonged to the company and a truck that belonged to Richard Woods and was used by the company. Richard Woods then conveyed the truck to Janice Stevens. Turner argued the life insurance policy on Mark Stevens should have been “issued to the company,” and the funds from the policy “should have been available as trust fund doctrines [sic] to pay creditors.” Turner conceded that Janice Stevens, Richard Woods, and Shirley Woods “were not named as defendants prior to the time the judgment [against SAV Quality Hay] had been obtained and [had] not since been named as defendants.” Turner argued the trial court was required to appoint a receiver because the relief Turner sought from Janice Stevens, Richard Woods, and Shirley Woods would “have to be sued for by the company, not by a creditor. ...