Opinion issued March 6, 2025
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-21-00465-CV ——————————— BIZKEEPING CORP., IPDA CLOSED CORP., AND FADWA F. AL ALI, Appellants V. LEVI BENTON, COURT-APPOINTED RECEIVER, Appellee
On Appeal from the 157th District Court Harris County, Texas Trial Court Case No. 2019-76630
O P I N I O N
This appeal arises from a turnover proceeding in which judgment creditors
sought judicial assistance in collecting on an unpaid default judgment.
The trial court appointed a receiver, who moved for authorization to sell office
furniture and equipment allegedly belonging to one of the judgment debtors. Without formally intervening, three non-parties filed a response in opposition to the
receiver’s motion to sell this property on the grounds that they, rather than a
judgment debtor, own the furniture and equipment and that this ownership dispute
could not be decided in the turnover proceeding. After a hearing, the trial court
granted the receiver’s motion, finding that the receiver had made a prima-facie
showing that one of the judgment debtors owned the disputed property. The non-
parties moved for reconsideration, which the trial court denied. They now appeal.
On appeal, these three non-parties—Bizkeeping Corp., IPDA Closed Corp.,
and Fadwa F. Al Ali—contend the trial court erred in deciding the issue of ownership
as to the disputed items. They posit that, under settled Texas law, a turnover
proceeding is merely procedural in nature and cannot be used to adjudicate the
property rights of persons who are not parties to underlying judgment. Their rights,
these non-parties maintain, must be adjudicated in a separate legal proceeding that
affords them the full due process to which defendants in a civil suit are entitled.
The court-appointed receiver has not appeared on appeal. Instead, the
judgment creditors have appeared. They contend we should dismiss this appeal for
lack of jurisdiction because the non-party appellants cannot appeal from a judgment
to which they are not parties and because the appellants did not timely file a notice
of appeal anyway.
2 To the extent this court lacks jurisdiction over their appeal, the non-party
appellants request that we construe their appeal as a petition for a writ of mandamus.
The appellants maintain that doing so will dispose of any jurisdictional defects.
The judgment-creditor appellees, in turn, argue that mandamus relief is
inappropriate for several reasons, including lack of standing, waiver by intervention,
and the existence of an adequate remedy at law.
Consistent with our precedent, we construe the non-party appellants’ appeal
as a mandamus petition, which disposes of the appellees’ jurisdictional arguments.
Further, we reject the judgment-creditor appellees’ arguments opposing
mandamus relief. We hold the non-party appellants have standing and are entitled to
the writ. As non-parties, they do not have an adequate remedy at law. The trial court
abused its discretion by adjudicating their rights in the turnover proceeding, which
is purely procedural and—under binding precedent—cannot be used to decide
ownership claims asserted by non-parties who are not bound by the underlying
judgment.
We therefore conditionally grant the writ and instruct the trial court to
withdraw its turnover order authorizing the receiver to sell the disputed furniture and
equipment. The writ will issue only if the trial court does not comply.
3 BACKGROUND
Ross Trewhella and Trejam Properties obtained a final no-answer default
judgment in the amount of $3,075,000 in damages against NAFA Investment
Corporation; Nafa Partnership, Ltd; NAFA Management Company; Lizard Trading
Corporation; and Ataa “Tom” Shadi. In an effort to collect on the judgment,
Trewhella and Trejam Properties instituted a post-judgment turnover proceeding.
In the turnover proceeding, the trial court directed the judgment debtors to
turnover specified property to a court-appointed receiver, Levi J. Benton. Benton
later moved for an additional order authorizing him to sell certain furniture and
equipment located at a specified office address. That request underlies this appeal.
The Office Furniture and Equipment
In seeking to sell the particular furniture and equipment, Benton argued that
the lease the office (in which the furniture and equipment were located) was in the
name of a business owned by one of the judgment debtors, specifically, Ataa “Tom”
Shadi. In support, he attached as exhibits the lease, a lease amendment, and an
assumed name certificate.
The lease was executed by the landlord and “ADPI, Corp., a Texas
corporation.” Shadi signed the lease on behalf of ADPI without specifying his
connection to the company. Shadi later signed the lease amendment, this time on
4 behalf of “ADPI Corp., a Texas corporation d/b/a Bizkeeping Co.,” as president.
Shadi also signed a personal guarantee of the lease as an accompanying exhibit.
The assumed name certificate, which predates the default judgment by almost
five years, states that Ataa Salah Shadi will be conducting business under the name
of “Bizkeeping Co.,” and will conduct that business as a sole proprietorship.
Non-Party Response
Because he was aware of a lease dispute between the landlord and certain non-
parties, Benton (the receiver) provided notice to the lawyer representing these non-
parties.
Without intervening in this suit, these non-parties—Bizkeeping Corp., IPDA
Closed Corp., and Fadwa F. Al Ali—filed a response opposing the sale of the office
furniture and equipment on the basis that they held the office lease and owned the
furniture and equipment. In support, they submitted a declaration made by Ali.
In her declaration, Ali averred that she is the president and sole shareholder
of IPDA Closed Corp., which was previously named or known as ADPI Corp. She
further averred that she is the president and sole shareholder of Bizkeeping Corp.
According to Ali, ADPI Corp., now known as IPDA Closed Corp., and
Bizkeeping Corp. both occupied the leased office space in question. She denied that
Bizkeeping Corp. is one of the judgment debtors in the underlying litigation.
5 Ali did not address the nature of her relationship to Shadi in her declaration.
But the record indicates that Shadi and Ali were husband and wife at the time.1
Ali also did not address the distinction, if any, between “Bizkeeping Co.” and
“Bizkeeping Corp.” The record does not appear to clarify this matter elsewhere.
The crux of the non-parties’ opposition to the receiver’s motion to sell the
furniture and equipment was that there was a genuine dispute as to ownership, and
the trial court could not lawfully resolve this dispute in a turnover proceeding.
Court Decision
The trial court rejected the non-parties’ position. The court signed a turnover
order finding that Shadi and his company were the tenants on the office lease and
that the furniture and equipment was owned by him or one of his companies. Though
the trial court acknowledged the non-parties’ competing ownership claim, the court
said that it rejected their claim based on the prima-facie showing made by the
receiver. Accordingly, the trial court authorized the receiver to sell the furniture and
equipment and to apply the proceeds first toward the expenses associated with the
sale, then toward the satisfaction of the underlying judgment, and finally toward the
compensation of the receiver for his services.
The non-parties moved for reconsideration, which the trial court denied.
1 Ali reportedly died sometime after her brief was filed in this court. Her death has no effect on the appellate proceedings or our disposition. See TEX. R. APP. P. 7.1(a)(1). 6 The non-parties then filed this appeal. Ross Trewhella and Trejam Properties,
the judgment creditors, have filed a motion to dismiss for lack of jurisdiction.
DISCUSSION
This Court Has Jurisdiction
In their motion to dismiss, Trewhella and Trejam Properties argue that
Bizkeeping Corp., IPDA Closed Corp., and Fadwa F. Al Ali cannot appeal from the
turnover order because they are not parties. They also argue that the notice of appeal
was untimely, and that the non-parties lack standing. We disagree.
Construal as Mandamus
Trewhella and Trejam Properties are correct that non-parties cannot ordinarily
appeal from a judgment or order. See, e.g., BASF Fina Petrochemicals Ltd. P’ship
v. H.B. Zachry Co., 168 S.W.3d 867, 870 (Tex. App.—Houston [1st Dist.] 2004, pet.
denied) (it is well-settled that non-parties generally cannot appeal from judgment).
But this rule is not controlling here because the non-party appellants have asked us
to construe their appeal as a mandamus petition. And a “person need not be a party
to the underlying litigation in order to seek mandamus relief.” Terrazas v. Ramirez,
829 S.W.2d 712, 723 (Tex. 1991).
When appellants timely ask us to construe their appeal as a mandamus petition
if appellate jurisdiction is lacking, we do so rather than dismissing the appeal. See
In re R.G., 388 S.W.3d 820, 822–23 (Tex. App.—Houston [1st Dist.] 2012, orig.
7 proceeding) (construing filing as petition for writ of mandamus based on filer’s
request to do so if court of appeals concluded appellate jurisdiction was lacking).
In fact, our court has held that a mandamus petition is the proper procedural
vehicle for addressing turnover orders that affect the rights of non-parties. See In re
Alsenz, 152 S.W.3d 617, 620–21 (Tex. App.—Houston [1st Dist.] 2004, orig.
proceeding) (mandamus petition is correct vehicle for non-parties to challenge
turnover order that includes them because non-parties have no adequate remedy by
appeal). That is precisely what we face here.
Therefore, as requested, we construe the non-party appellants’ appeal as a
petition for a writ of mandamus. We have jurisdiction over that filing.
Timeliness
Because we construe the filing as a mandamus petition (and because it was
timely under the appellate rules anyway), we likewise reject Trewhella’s and Trejam
Properties’ additional argument that the non-parties did not timely file their notice
of appeal.
“[T]here is no fixed deadline for filing original proceedings in the Texas Rules
of Appellate Procedure.” CMH Homes v. Perez, 340 S.W.3d 444, 453 (Tex. 2011).
Instead, entitlement to mandamus relief is largely guided by equitable principles.
See id. Diligence is required and unreasonable delay may disentitle one to mandamus
8 relief. In re Am. Airlines, 634 S.W.3d 38, 42–43 (Tex. 2021). Equitable concepts
like unreasonable delay turn on the circumstances of a given case. See id.
Trewhella and Trejam Properties do not contend that the non-parties
unreasonably delayed in seeking relief from the trial court’s turnover order. Instead,
relying on the conventional deadline for filing a direct appeal, Trewhella and Trejam
Properties argue the non-parties’ notice of appeal was untimely because they filed it
more than 30 days after the trial court signed the order. See TEX. R. APP. P. 26.1
(providing notice usually must be filed within 30 days after judgment signed).
But, although the conventional deadline to file a notice of appeal is 30 days,
it is expanded to 90 days within the signing of the judgment if, as here, a timely new-
trial motion is filed. TEX. R. APP. P. 26.1(a)(1). The non-parties filed a timely motion
for reconsideration of the challenged turnover order, which is the equivalent of a
new-trial motion and had the effect of expanding the conventional appellate deadline
to 90 days. See, e.g., Adams v. Ross, No. 01-15-00315-CV, 2016 WL 4128335, at
*2 (Tex. App.—Houston [1st Dist.] Aug. 2, 2016, no pet.) (“We treat a motion for
reconsideration that seeks modification or reversal of a judgment as a motion for
new trial.”).
The non-parties filed their notice of appeal within this 90-day deadline. As a
result, even if the ordinary deadlines for filing a direct appeal had applied here, the
non-parties would have satisfied them.
9 On this record, we hold the non-parties exercised reasonable diligence. See
CMH Homes, 340 S.W.3d at 453 (party who filed unreviewable interlocutory appeal,
but alternatively requested mandamus relief, was diligent in seeking mandamus,
given that its filing satisfied interlocutory appeal deadline).
Standing
Finally, Trewhella and Trejam Properties argue that there is no jurisdiction
because the non-parties lack the standing required to secure mandamus relief. We
reject this argument because the non-parties’ ownership claim suffices to confer
standing. They claim that the receiver is attempting to sell property that belongs to
them, rather than to a judgment debtor. This claimed interest gives them standing.
See Perez v. Turner, 653 S.W.3d 191, 198 (Tex. 2022) (in general, one “must plead
a particularized, concrete injury” to establish standing to sue); Charles v. Dickinson
Indep. Sch. Dist., No. 01-20-00215-CV, 2022 WL 904434, at *5 (Tex. App.—
Houston [1st Dist.] Mar. 29, 2022, no pet.) (party who alleged she had been deprived
of real property without due process in prior tax delinquency suit had standing to sue
to recover ownership of property).
We have jurisdiction to hear the mandamus petition.
10 The Turnover Order Is Subject to Mandamus Relief
The standard for mandamus relief is well-settled. To be entitled to a writ of
mandamus, the relator must show the trial court abused its discretion and the relator
lacks an adequate remedy at law, such as an ordinary appeal. See, e.g., In re
Sherman-Williams Co., 668 S.W.3d 368, 370, 372 (Tex. 2023).
This mandamus petition asks if the trial court abused its discretion, leaving no
adequate remedy, by permitting the receiver to take control over and sell furniture
and equipment that was subject to an ownership dispute, and which non-parties (and
not the judgment debtors) claim to own. The answer is yes: mandamus relief is
warranted on this record.
Abuse of Discretion
The trial court abused its discretion here. Bizkeeping Corp., IPDA Closed
Corp., and Fadwa F. Al Ali—who are not judgment debtors—claim ownership of
the very office furniture and equipment that the trial court has authorized the receiver
to sell for the benefit of the judgment creditors. Despite this, the trial court permitted
the sale based on what it characterized as the receiver’s prima-facie showing that
judgment debtor Shadi or a company under his control is the owner. Binding law
says this was improper. Alexander Dubose Jefferson & Townsend LLP v. Chevron
Phillips Chem. Co., 540 S.W.3d 577, 585 (Tex. 2018) (“[T]he turnover statute has
no provision conferring authority on trial courts to decide the substantive rights of
11 the parties properly before it in a turnover proceeding, let alone the rights of strangers
to the underlying judgment.”); Elgohary v. Herrera Partners, No. 01-13-00193-CV,
2014 WL 2538556, at *4 (Tex. App.—Houston [1st Dist.] June 5, 2014, no pet.)
(judgment creditor “cannot use the turnover statute to determine ownership of
disputed funds or litigate issues of alter-ego”); see also Van Dyke v. Littlemill Ltd.,
579 S.W.3d 639, 644 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (“[W]e
conclude that, based on the recent Supreme Court of Texas opinion in Alexander
Dubose Jefferson & Townsend LLP v. Chevron Phillips Chemical Co., the trial court
was not authorized to determine the competing ownership claims of either the parties
or the third-party intervenors in a turnover proceeding.”).
The Texas turnover statute is a procedural device to aid judgment creditors in
satisfying unpaid judgments. See TEX. CIV. PRAC. & REM. CODE § 31.002. Under the
statute, a judgment creditor may seek judicial assistance to reach a judgment debtor’s
property, provided that the property is not exempt from attachment, execution, or
seizure. Id. § 31.002(a). Among other things, a court may (as here) appoint a receiver
to take possession of nonexempt property and sell it to satisfy the judgment. Id.
§ 31.002(b).
But the turnover statute does not contain any provision for resolving
substantive disputes about the ownership of property. See id. § 31.002. And, as
controlling law makes clear, a turnover proceeding cannot be used to resolve such
12 disputes. Elgohary, 2014 WL 2538556, at *4 (“Elgohary cannot use the turnover
statute to determine ownership of disputed funds or litigate issues of alter-ego.”).
This court’s precedent explains that a trial court may not issue orders under
the turnover statute as to the rights of non-parties. Id. at *3 (order cannot require
non-parties to turn over property not subject to judgment debtor’s control). “A
turnover order that issues against a non-party for property not subject to the control
of the judgment debtor completely bypasses our system of affording due process.
Otherwise, a court could simply order anyone (a bank, an insurance company, or the
like) alleged to owe money to a judgment debtor to hand over cash on threat of
imprisonment.” Id. (quoting Ex parte Swate, 922 S.W.2d 122, 125 (Tex. 1996)
(Gonzalez, J., concurring)).
Instead, ownership disputes with third parties must be litigated and decided
with all the ordinary process that is due to the parties involved. “[A] turnover order
cannot be used as a shortcut to avoid judicial proceedings necessary to provide third
parties due process in adjudicating their substantive rights.” Id. at *4–5 (concluding
that turnover statute cannot be used as mechanism to adjudicate substantive rights
of non-party, like issues of successor liability, alter ego, or ownership of disputed
property; instead, non-party has right to trial on the merits); see also Tomlinson v.
Khoury, 624 S.W.3d 601, 606 & n.4 (Tex. App.—Houston [1st Dist.] 2020, pet.
denied) (reiterating that turnover statute “is a purely procedural device” that “is not
13 to be used to determine parties’ and non-judgment debtors’ substantive rights or
ownership rights”).
Under that law, the trial court abused its discretion in entering this turnover
order: the court ordered relief the statute does not permit. See In re Alsenz, 152
S.W.3d at 620 (mandamus is proper if trial court “includes a non-judgment third-
party in a turnover order”); Repub. Ins. Co. v. Millard, 825 S.W.2d 780, 784–85
(Tex. App.—Houston [14th Dist.] 1992, orig. proceeding) (trial court abused
discretion by including non-judgment third-party in turnover order; mandamus relief
was proper); see also Mid-Am. Indem. Ins. Co. v. King, 22 S.W.3d 321, 324 (Tex.
1995) (erroneous interpretation of statute is clear abuse of discretion).
No Adequate Remedy at Law
On this record, there is also no adequate remedy at law. A turnover order, like
the one before us, is the equivalent of a final judgment that is subject to appeal by a
judgment debtor or judgment creditor. See Alexander Dubose, 540 S.W.3d at 587
(explaining that turnover order that operates like a mandatory injunction—requiring
transfer of property—is final and appealable). But Bizkeeping Corp., IPDA Closed
Corp., and Fadwa F. Al Ali are neither judgment debtors nor judgment creditors.
Thus, as non-parties to the turnover proceeding, they cannot appeal from the trial
court’s turnover order. BASF Fina Petrochemicals, 168 S.W.3d at 870.
14 Our court has held that non-parties like these may seek relief from a turnover
order that affects them via a petition for a writ of mandamus. See In re Alsenz, 152
S.W.3d at 620–21 (reasoning that non-party has no adequate remedy by appeal if its
property is turned over). They have no other way to seek review.
Acknowledging this, judgment creditors argue that the non-parties could bring
a separate suit for money damages for the loss of their furniture and equipment. We
note that they so argue without specifying what claims the non-parties could assert,
how this would offer them an adequate remedy, or against whom these claims would
be brought once the turnover and sale of this property has been judicially authorized.
The ability to bring a separate suit for damages “is simply not an appellate
remedy.” In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 139 (Tex. 2004). Nor is
it an adequate remedy at law in this case.2
In the context of this turnover order, which affects the non-parties’ property
rights as to specific property they claim to own, a separate suit for damages is not an
adequate remedy because (at a minimum) these non-parties also lose the substantive
right to insist on a trial on the merits—and to have full process—before they are
deprived of property they claim is their own. This deprivation of process cannot be
2 Cf. Manion v. Lockhart, 114 S.W.2d 216, 218–19 (Tex. 1938) (indicating mandamus would be inappropriate to compel state treasurer to pay relator who was owed funds previously deposited with treasurer when, among other things, statute authorized lawsuit against treasurer to recover such deposited funds). 15 remedied by a later suit—brought by the non-parties—for damages on the basis that
the property that was sold was in fact theirs. In that later suit, the non-parties would
be recast as plaintiffs who will bear the burden of proof, instead of as defendants
(with different burdens, potential elements of claims and defenses, and applicable
proof) defending their claims to property and resisting claims made against them.
The non-parties here have no adequate remedy at law. See In re Gonzales, 619
S.W.3d 259, 264 (Tex. 2021) (mandamus relief is appropriate when a substantive
right is lost, regardless of the ultimate outcome); Elgohary, 2014 WL 2538556, at
*4 (emphasizing that turnover proceeding that adjudicates non-parties’ substantive
rights short-circuits their due-process rights); see also Ex parte Swate, 922 S.W.2d
at 126 (Gonzalez, J., concurring) (“It may not be as efficient to require the plaintiff
to plead and prove why she has a right to a person’s money; however, our system of
jurisprudence demands it.”).
Waiver of Mandamus Relief
Finally, the judgment creditors argue that mandamus relief is inappropriate
because, in their view, the non-parties effectively intervened in the turnover
proceeding to contest ownership, so the non-parties cannot complain now that the
trial court made an ownership determination. We reject this waiver claim.
In their response opposing the receiver’s motion to sell the office furniture
and equipment, the non-parties argued (correctly) that their rights could not be
16 decided in the turnover proceeding. Yes, the non-parties did claim they, rather than
a judgment debtor, owned the furniture and equipment. But they did not seek an
adjudication of this ownership dispute in the trial court as part of the turnover
proceeding. Instead, the non-parties requested that the trial court deny the receiver’s
motion.
In any event, our Supreme Court has voiced skepticism of the waiver-by-
intervention argument the judgment creditors advance. The Court has explained that
“the turnover statute has no provision conferring authority on trial courts to decide
the substantive rights of the parties properly before it in a turnover proceeding, let
alone the rights of strangers to the underlying judgment.” Alexander Dubose, 540
S.W.3d at 585. Then, commenting on the very intermediate appellate decision the
judgment creditors cite in support of their waiver-by-intervention argument, the
Court observed that the intermediate appellate decision in question “does not explain
how a third party’s consent via a plea in intervention suddenly confers such
authority.” Id. (calling into doubt the validity of Cre8 Int’l v. Rice, No. 05-14-00377-
CV, 2015 WL 3492629 (Tex. App.—Dallas June 3, 2015, no pet.)).
Moreover, because the non-parties did not in fact intervene below, the
adoption of the judgment creditors’ position in this instance would insulate from
review the trial court’s decision to adjudicate the substantive rights of the non-
parties. That is, were we to adopt the waiver-by-intervention argument advocated by
17 the judgment creditors on these facts, the non-parties could not challenge the trial
court’s turnover order by petition for a writ of mandamus due to waiver—and yet,
as non-parties, they could not appeal from it either. They would have no possible
forum to seek review of the order.
We decline to adopt a species of waiver that would render the trial court’s
application of the turnover statute unreviewable. See Alexander Dubose Jefferson &
Townsend LLP v. Chevron Phillips Chem. Co., No. 09-14-00313-CV, 2019 WL
1181730, at *5–6 (Tex. App.—Beaumont Mar. 14, 2019, judgm’t vacated w.r.m.)
(rejecting waiver-by-intervention argument because adopting it would effectively
leave intervenor without an appellate remedy).
CONCLUSION
We deny Trewhella and Trejam Properties’ motion to dismiss. We
conditionally grant the non-party appellants’ petition for a writ of mandamus and
instruct the trial court to withdraw its July 16, 2021 turnover order authorizing the
receiver to sell the office furniture and equipment at issue. Our writ of mandamus
will issue only if the trial court fails to comply with our instruction.
Jennifer Caughey Justice
Panel consists of Justices Guerra, Caughey, and Morgan.