Bo Fontana v. Tiffany & Co.

Opinion

Court of Appeals

Tenth Appellate District of Texas

10-24-00346-CV

Bo Fontana,

Appellant

v.

Tiffany & Co.,

Appellee

On appeal from the

18th District Court of Johnson County, Texas Judge Sydney B. Hewlett, presiding Trial Court Cause No. DC-C202300102

JUSTICE HARRIS delivered the opinion of the Court.

MEMORANDUM OPINION

Appellant, Bo Fontana (hereafter “Fontana”), appeals from a turnover order rendered by the trial court in proceedings initiated by Appellee, Tiffany & Co. (hereafter “Tiffany”), to recover certain pieces of jewelry purchased on credit by Fontana and left unpaid. In two issues, Fontana asserts that the trial court abused its discretion by appointing a post-judgment receiver over property for which Tiffany produced insufficient evidence that Fontana owned, and that the trial court’s order did not provide a mechanism to allow Fontana

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to provide necessities for his family. Tiffany asserts that we lack jurisdiction over this appeal because the order is not a final, appealable order. We will first address whether this turnover order is final and appealable as to convey appellate jurisdiction. We find that the order is final for purposes of appeal, and we reverse the receivership order, in part, and render the order invalid as to “all non-exempt assets owned, directly or indirectly, by Bo Fontana,” and valid as to only the “Eight Assets” set forth below.

Background

On February 10, 2023, Tiffany filed suit against Fontana in the 18th Judicial District Court of Johnson County, Texas, to recover amounts owed for certain pieces of jewelry purchased by Fontana. On January 31, 2024, the parties entered a Rule 11 Settlement Agreement in which Fontana agreed to pay Tiffany $687,500.00 on or before March 1, 2024. Fontana did not pay the sum by that date. The trial court subsequently entered an agreed judgment awarding Tiffany recovery in the amount of $985,492.50. Fontana did not pay this judgment either.

Tiffany later filed a motion for a post-judgment receivership. Fontana filed a response. On October 3, 2024, the court held a hearing on the motion, during which the trial court informed the parties it would be granting the motion. The trial court gave the parties an opportunity to strike and revise provisions in an Order Appointing Receiver and Compelling Discovery. The

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parties made revisions. Beyond those revisions and a comment by counsel for Fontana that he is “opposed to the receiver,” the parties did not object to any provisions in the order. On the same day, the trial court granted the motion and entered the Order Appointing Receiver and Compelling Discovery which is the subject of this appeal. Fontana filed his notice of appeal on October 22, 2024.

Turnover Order

The “Turnover Statute” provides judgment creditors with a procedural device to assist them in satisfying their judgment debts. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 224 (Tex. 1991). To accomplish turnover, a court may “appoint a receiver with the authority to take possession of the nonexempt property, sell it, and pay the proceeds to the judgment creditor to the extent required to satisfy the judgment.” TEX. CIV. PRAC. & REM. CODE § 31.002(b)(3).

I. Jurisdiction

Usually, only final judgments are subject to appeal. Alexander Dubose Jefferson & Townsend LLP v. Chevron Phillips Chem. Co., L.P., 540 S.W.3d 577, 582 (Tex. 2018). However, the finality of turnover orders differs from the traditional concept of finality. Id. A turnover order is final and appealable if it was in the nature of a mandatory injunction. Schultz v. Fifth Jud. Dist. Ct. of Appeals at Dall., 810 S.W.2d 738, 740 (Tex. 1991), abrogated on other grounds, In re Sheshtawy, 154 S.W.3d 114 (Tex. 2004). A provision of a turnover order

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is in the nature of a mandatory injunction if it requires a party to take affirmative action. See Alexander Dubose Jefferson & Townsend LLP, 540 S.W.3d at 587 (stating that a portion of a turnover order was in the nature of a mandatory injunction because it required the judgment debtor to deliver funds directly to the judgment creditor).

Through multiple provisions, the order directed Fontana to deliver to the receiver “all non-exempt assets owned, directly or indirectly, wherever located, including accounts, personal property, intangible property, and real property.” These provisions order Fontana to take affirmative action and are thus injunctive and appealable. See Alexander Dubose Jefferson & Townsend LLP, 540 S.W.3d at 587; see also Schultz, 810 S.W.2d at 740. Having determined that these provisions are final for purposes of appeal, we turn to the breadth of these provisions.

II. Evidence Supporting Turnover Order By his first issue on appeal, Fontana asserts that the trial court abused its discretion in appointing a post-judgment receiver over property for which Tiffany produced insufficient evidence that Fontana owned. Fontana essentially argues that the turnover order is too broad.

Standard of Review

We review a trial court's order requiring turnover and appointing a receiver under an abuse of discretion standard. Beaumont Bank, N.A. v. Buller,

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806 S.W.2d 223, 226 (Tex. 1991). A trial court may be reversed for abusing its discretion only when it acts in an unreasonable or arbitrary manner, that is, if it acts without reference to any guiding rules and principles. Id. A trial court's issuance of a turnover order will not be reversed for abuse of discretion if the judgment is sustainable for any reason. Id. Whether there was no evidence to support the turnover award is a relevant consideration in determining if the trial court abused its discretionary authority in issuing the order. Id.

Applicable Law

Section 31.002(a) states that “a judgment creditor is entitled to aid from a court of appropriate jurisdiction, including a justice court, through injunction or other means in order to reach property to obtain satisfaction on the judgment if the judgment debtor owns property, including present or future rights to property, that is not exempt from attachment, execution, or seizure for the satisfaction of liabilities.” TEX. CIV. PRAC. & REM. CODE § 31.002(a). The statute does not specify or restrict the way in which evidence may be received for a trial court to determine whether Section 31.002(a) is satisfied. Klinek v. LuxeYard, Inc., 672 S.W.3d 830, 835 (Tex. App.—Houston [14th Dist.] 2023, no pet.). The statute does not require that such evidence be in any particular form, reach any particular level of specificity, or reach a particular quantum before the court may grant aid under Section 31.002. Id. The statute only requires that the judgment debtor: (1) own property (including present or

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future rights to property) and (2) that is not exempt from attachment, execution, or seizure for the satisfaction of liabilities. TEX. CIV. PRAC. & REM. CODE § 31.002(a).

Discussion

At the hearing on the Motion for Post-Judgment Receivership, Tiffany submitted evidence in an attempt to prove Fontana owned various property. Fontana admits that Tiffany proved Fontana had an ownership interest in three assets: (1) jewelry Fontana purchased from Tiffany, which is the subject of the underlying judgment, (2) real property located at 105 Syble Jean Drive, and (3) real property located at 401 Madeline Lane. Fontana argues that Tiffany did not prove the ownership of any assets other than the Three Assets. We do not think that Tiffany must definitively prove the ownership of every asset the order covers. Instead, we hold that as long as some evidence of a substantive and probative character tending to prove that Fontana owned a particular asset was before the trial court when it signed the order, then the trial court did not abuse its discretion as to that asset. See Tanner v. McCarthy, 274 S.W.3d 311, 331 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (“A trial court will not be reversed for an abuse of discretion so long as there is some evidence of a substantive and probative character to support the decision.”).

Moreover, while Section 31.002(h) provides that “a court may enter or enforce an order under this section that requires the turnover of nonexempt

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property without identifying in the order the specific property subject to turnover,” several Texas courts require evidence for each asset subject to the order. TEX. CIV. PRAC. & REM. CODE § 31.002(h); See Hamilton Metals, Inc. v. Glob. Metal Servs., Ltd., 597 S.W.3d 870, 883 (Tex. App.—Houston [14th Dist.] 2019, pet. denied) (holding that a trial court abused its discretion in signing a receivership order to the extent the order applied to property other than that which was sufficiently evidenced before the court); see also Great N. Energy, Inc. v. Circle Ridge Prod., Inc., No. 06-16-00029-CV, 2016 WL 7912458, at *11 (Tex. App.—Texarkana Sept. 28, 2016, no pet.) (same); Stanley v. Reef Sec., Inc., 314 S.W.3d 659, 669 (Tex. App.—Dallas 2010, no pet.) (same). We join the Houston, Dallas, and Texarkana courts and hold that for a trial court to issue a turnover order, each piece of property to be subject to the order must be sufficiently evidenced before the trial court.

The evidence before the trial court when it signed the turnover order was legally sufficient to show that Fontana had ownership interests in the following property or assets:

1) certain pieces of jewelry Fontana purchased from Tiffany which are the subject of the underlying judgment;

2) real property located at 105 Syble Jean Drive;

3) real property located at 401 Madeline Lane;

4) real property located at 1400 East Tioga Court;

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5) real property located at 330 Madeline Lane;

6) the photographed boat depicted in the record;

7) the photographed trailer depicted in the record;

8) the photographed travel trailer depicted in the record (collectively, the “Eight Assets”). It is undisputed that Tiffany proved the ownership of the first three assets. As for the remaining five assets, the record shows that there was some evidence of a substantive and probative character tending to prove Fontana owns these assets before the trial court when it issued the order. Fontana admitted to owning real property located at 1400 East Tioga Court and real property located at 330 Madeline Lane in a deposition from another lawsuit. The boat, trailer, and travel trailer can be seen on Fontana’s property in photographs. Fontana’s interests in any corporation, limited liability company, general partnership, and limited partnership were clearly excluded from the order during the parties’ revisions. Accordingly, the assets held by any such entities, in which Fontana has an ownership interest, are not subject to the turnover order and are not included in this discussion.

As for the Eight Assets, we hold that there was at least some substantive and probative evidence that Fontana owned those assets in front of the trial court when it signed the order. See Tanner, 274 S.W.3d at 331. To the extent that the trial court appointed a receiver over “non-exempt assets owned,

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directly or indirectly, by Bo Fontana,” other than the Eight Assets, the order was not sufficiently supported by evidence and constituted an abuse of discretion. See Hamilton Metals, Inc., 597 S.W.3d at 883; see also Great N. Energy, Inc., 2016 WL 7912458 at *11; Stanley, 314 S.W.3d at 669.

Fontana’s first issue is sustained in part as to “all non-exempt assets owned, directly, or indirectly, by Bo Fontana,” other than the Eight Assets.

III. Necessities

Additionally, Fontana complains that the order does not provide any mechanism for Fontana to pay for necessities. Fontana does not argue that this constitutes an abuse of the trial court’s discretion, but rather requests this Court provide such a mechanism. While Fontana complained at the hearing about a lack of such a provision, Fontana did not object to said missing provision. Moreover, Fontana was afforded the opportunity to revise the order prior to its signing but did not add such a provision. Consequently, Fontana did not preserve this complaint for appeal. TEX. R. APP. P. 33.1; D & M Marine, Inc. v. Turner, 409 S.W.3d 853 (Tex. App.—Fort Worth 2013, no pet.) (declining to reverse a turnover order for error not properly preserved for appeal).

Fontana’s second issue is overruled.

Conclusion

The trial court did not abuse its discretion in appointing a receiver as to the Eight Assets. As for “all non-exempt assets owned, directly or indirectly,

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by Bo Fontana,” subject to the order other than the Eight Assets, the trial court abused its discretion in appointing a receiver over them. Accordingly, we reverse the receivership order in part and render the order invalid as to “all non-exempt assets owned, directly or indirectly, by Bo Fontana,” and valid as to only the Eight Assets.

LEE HARRIS

Justice

OPINION DELIVERED and FILED: August 27, 2026 Before Chief Justice Johnson, Justice Smith, and Justice Harris Reversed and rendered in part Affirmed in part CV06