Buller v. Beaumont Bank, N.A.

777 S.W.2d 763, 1989 WL 126326

• Court: Court of Appeals of Texas
• Decided: September 27, 1989
• Docket: 09-88-175-CV
• Status: Published

Opinions

OPINION

BURGESS, Justice.

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 uncontro-verted 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 debt- or/estate. Patricia Buller was not a judgment debtor in her individual capacity; ap-pellee 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.