DeVore v. Central Bank & Trust

908 S.W.2d 605, 1995 Tex. App. LEXIS 2550, 1995 WL 613575

• Court: Court of Appeals of Texas
• Decided: October 19, 1995
• Docket: 2-94-128-CV
• Status: Published

Opinions

OPINION

DAY, Justice.

Stewart DeVore, Jr. appeals the trial court’s turnover order requiring him to turn over to Central Bank & Trust (the Bank) $2,000 per month. DeVore testified that his only source of income is the money he receives from his employment with Larken, Inc. The trial court found the employment contract between DeVore and Larken was a sham designed solely to evade the turnover order by rendering DeVore’s income from Larken exempt as current wages. It also found DeVore to be an independent contractor whose income from Larken was subject to turnover under section 31.002 of the Texas Civil Practice & Remedies Code. We affirm.

FACTS

On November 16, 1992, the Bank took a default judgment against DeVore and TOH, Inc. for $21,453.28. To enforce the judgment, the Bank filed an application for a turnover order against DeVore seeking a turnover of all compensation paid to him by DeVore & Carrell, P.C., DeVore’s law firm. On January 28, 1994, the trial court held a hearing on the Bank’s pending application for a turnover order. At this hearing, no evidence was introduced on the turnover, but the trial court stated that it was the court’s position that DeVore’s income, as a private attorney and an independent contractor, was subject to a turnover order. Accordingly, the trial court told the parties to negotiate the amount DeVore should turn over to the Bank, and if no compromise was reached, the trial court would schedule a hearing. The trial court, however, did not sign a turnover order pursuant to this January hearing.

On April 15,1994, the trial court conducted another hearing. The attorney for the Bank stated that the court needed to determine the amount of the turnover because DeVore never attempted to negotiate with the Bank after the January hearing. DeVore, however, was the only witness to testify at the April hearing. According to DeVore, as of March 1,1994, he was no longer an independent contractor because he became an employee of one of his longtime clients, Larken, Inc., as its in-house counsel. Therefore, De-Vore argued he was no longer subject to a turnover order because his salary from Lark-en constituted “current wages” under section 42.001(b)(1) of the Texas Property Code. See Tex.Civ.Prac. & Rem.Code ANN. § 31.002(f) (Vernon Supp.1995).

The trial court, however, rejected this argument and found the employment contract between DeVore and Larken was a sham designed solely to avoid the turnover. Furthermore, it found that DeVore was working as an independent contractor attorney for Larken, thus making his income from Lark-en subject to turnover under section 31.002 of the Texas Civil Practice & Remedies Code. Pursuant to the April hearing, the trial court signed an interlocutory turnover order, but delayed signing the final turnover order until a hearing could be held to determine the actual amount to be turned over.

On June 10, 1994, the trial court held another evidentiary hearing to determine the amount of money DeVore would be required to turn over. Based on the evidence in this hearing, the trial court signed the final turnover order requiring DeVore to turn over $2,000 per month to the Bank from the payments he receives for the services he renders as an attorney.¹

ABUSE OF DISCRETION

In points of error one, two, and four, De-Vore asserts the trial court abused its discretion: (1) in ordering him to turn over a portion of his monthly income from Larken, Inc. because there is no evidence or insufficient evidence to support the trial court’s finding that he was an independent contractor attorney working for Larken and that his employment contract with Larken was a sham; (2) in misapplying the law to the facts because a court may not order a debtor to turn over wages in any form for the satisfaction of a judgment; and (3) in ordering him to turn over $2,000 per month because no evidence or insufficient evidence exists to support that amount. We disagree.

According to the Texas Supreme Court, the proper standard of review in a turnover proceeding is an abuse of discretion. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex.1991). Under an abuse of discretion standard, legal and factual insufficiency are not independent grounds of error, but are rather relevant factors in assessing whether the trial court abused its discretion. See D.R. v. J.A.R., 894 S.W.2d 91, 95 (Tex.App.—Fort Worth 1995, writ denied); Wood v. O’Donnell, 894 S.W.2d 555, 556 (Tex.App.—Fort Worth 1995, n.w.h.). Therefore, we will only use an abuse of discretion standard in reviewing these points of error, not a legal or factual sufficiency standard.

In determining whether a trial court abused its discretion, we must determine “whether the trial court acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary and unreasonable.” Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate court in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). An abuse of discretion does not occur where the trial court bases its decision on conflicting evidence. Davis v. Huey, 571 S.W.2d 859, 862 (Tex.1978); Kirkpatrick v. Memorial Hosp. of Garland 862 S.W.2d 762, 776 (Tex.App—Dallas 1993, writ denied). Furthermore, an abuse of discretion does not occur as long as some evidence of a substantive and probative character exists to support the trial court’s decision. Holley v. Holley, 864 S.W.2d 703, 706 (Tex.App.—Houston [1st Dist.] 1993, writ denied).

A. DeVore’s Employment Contract

In point of error one, DeVore asserts the trial court abused its discretion by finding that he was working as an independent contractor attorney for Larken because the employment contract between him and Lark-en was a sham designed solely for him to avoid paying his debt. The evidence introduced at the April 15, 1994 hearing showed the following:

(1) In January 1994, the trial court scheduled a hearing on the Bank’s application for a turnover order;

(2) No evidence was received at that hearing;

(3) The trial court told both parties that because DeVore is a practicing attorney and an independent contractor, it is the court’s position that his wages are not exempt from turnover;

(4) The trial court told both parties to negotiate the amount to be turned over, and if no agreement can be reached, it would conduct another hearing;

(5) At the time of this January 1994 hearing, DeVore practiced law for and was an 80% owner in the law firm of DeVore & Carrell, P.C. (the law firm);

(6) The trial court did not sign a turnover order pursuant to the January hearing;

(7) On April 15, 1994, the trial court conducted another hearing on the Bank’s application for a turnover order;

(8) DeVore claimed his circumstances had drastically changed and that as of March 1, 1994, he was no longer an independent contractor, but instead was an employee of Larken;

(9) DeVore testified that Larken was a longtime client of his and that the work he performs for Larken as its employee is of the same quality, quantity, and nature as he did before the employment;

(10) DeVore testified that Larken exercises the same control over his work after his employment as it did before his employment and that he receives approximately the same compensation as before his employment;

(11) DeVore testified that his work for Larken prior to his employment constituted 90% of his billings;

(12) DeVore testified that he still owns 80% of the stock in the law firm;

(13) DeVore testified that he does not receive any money from the law firm and has not received any money from the law firm since his employment with Larken on March 1, 1994;

(14) DeVore testified that the only money he receives comes from Larken;

(15) DeVore testified that he maintains his same office, but Larken subleases the space from the law firm for DeVore to use;

(16) DeVore testified that the law firm pays ail of his expenses and Larken reimburses it;

(17) DeVore testified that the law firm pays ail of his travel expenses, and Larken reimburses it; and

(18) The attorney for the Bank stated that DeVore never made any attempt to negotiate the turnover amount after the January 1994 hearing.

After reviewing this evidence, we find that ample evidence of a substantive and probative character exists to support the trial court’s findings that DeVore, effectively, worked as an independent contractor attorney for Larken and that the alleged employment agreement between DeVore and Lark-en was nothing more than a sham created by DeVore because the trial court had informed him in the January hearing that in its opinion, the money he received from his law firm was subject to a turnover order. Therefore, we find the trial court did not abuse its discretion because its findings were not arbitrary and unreasonable.² We overrule point of error one.

B. Exemption Of Wages

In point of error two, DeVore asserts the trial court abused its discretion in ordering him to turn over a portion of his monthly payments from Larken because any payments made to him from Larken were exempt from turnover as “current wages.” See Tex.Civ.PraC. & ReM.Code Ann. § 31.002(f) (Vernon Supp.1995) and Tex.Prop.Code Ann. § 42.001(b)(1) (Vernon Supp.1995). In support of his point of error, DeVore argues that he is an employee of Larken. We, however, overruled that argument in point of error one. DeVore also argues that if he is not an employee of Larken, then he is an employee of his professional corporation law firm and the wages paid to him by his professional corporation law firm are “current wages” exempt from a turnover order just as wages that a doctor receives from a professional association are exempt. See Schultz v. Fifth Judicial Dist. Court of Appeals, 810 S.W.2d 738, 739 n. 2 (Tex.1991); Schultz v. Cadle Co., 825 S.W.2d 151, 153-54 (Tex.App.—Dallas 1992), writ denied per curiam, 852 S.W.2d 499 (Tex.1993).

While DeVore makes a good argument, it is inapplicable because of the facts in this case. At the January 1994 hearing, the trial court stated that in its opinion the money DeVore received from his law firm was subject to a turnover order. The trial judge, however, did not sign a turnover order pursuant to this hearing. He did sign an interlocutory turnover order pursuant to the April 15, 1994 hearing. Furthermore, he signed the final turnover order pursuant to the June 10, 1994 hearing. At the time of these turnover orders, DeVore no longer received any money from his law firm. In fact, DeVore testified that his only source of income after March 1, 1994, was the payments that Lark-en made directly to him as an alleged employee. The turnover order thus did not apply to any wages DeVore received from his professional corporation law firm because DeVore no longer received any money from his law firm. Therefore, our determination of whether the trial court abused its discretion is limited to determining whether the payments made directly from Larken to De-Vore as an independent contractor attorney constituted “current wages.”³

The term “current wages” implies a master and servant relationship, not an attorney engaged in private practice as an independent contractor. Brink v. Ayre, 855 S.W.2d 44, 45 (Tex.App.—Houston [14th Dist.] 1993, no writ); Hennigan v. Hennigan, 666 S.W.2d 322, 325 (Tex.App.—Houston [14th Dist.]), writ ref'd n.r.e per curiam, 677 S.W.2d 495 (Tex.1984); Brasher v. Carnation Co., 92 S.W.2d 573 (Tex.Civ.App.—Austin 1936, writ dism’d). Because the trial court did not abuse its discretion in finding that DeVore, effectively, works for Larken as an independent contractor attorney, it did not abuse its discretion in holding that the money Larken pays DeVore as an independent contractor attorney is not exempt from a turnover order as “current wages.” We overrule point of error two.

C. Amount Of Turnover Order

In point of error four, DeVore asserts the trial court abused its discretion by ordering him to turn over the sum of $2,000 per month because there is no evidence or insufficient evidence that DeVore is the owner of $2,000 worth of nonexempt property in excess of his reasonable and necessary living expenses. We disagree.

The trial court, after determining that Larken’s payments to DeVore were subject to turnover, conducted another hearing on June 10, 1994 to determine the amount De-Vore was to turn over. DeVore was the only witness to testify at this hearing. The evidence presented in the June hearing showed the following:

(1) DeVore nets $10,804.88 monthly from Larken;

(2) His claimed reasonable and necessary monthly living expenses total $10,601;

(3) The $10,601 living expenses include, among other things, a $1,424 monthly house payment; a $584 monthly tuition payment for his daughter to attend private school; a $286 monthly lease payment for his daughter’s car that he entered into after the date of the judgment for the Bank; a cable television monthly payment; a cellular telephone monthly payment; book and magazine, subscription monthly payments; a milk delivery service monthly payment; monthly payments to florists; and monthly payments for lawn maintenance, fertilizer, and weed killer.

DeVore argues that in order for his three-person family to meet its reasonable and necessary living expenses, he needs all of the approximately $129,000 he nets each year from Larken. The trial court, however, concluded that some of the items claimed by DeVore in his monthly expenses were not necessary and reasonable living expenses, but “pork.” It then concluded that at least $1,700 could be eliminated from DeVore’s estimated monthly living expenses. Therefore, the trial court ordered DeVore to pay $2,000 per month to the Bank. This left DeVore approximately $8,900 a month for the necessary and reasonable living expenses for his three-person family.

After reviewing all the evidence, we find the trial court did not abuse its discretion in ordering DeVore to turn over $2,000 per month to the Bank. The evidence presented at the June 10, 1994 hearing clearly shows that many of the items claimed by DeVore as necessary and reasonable living expenses are nothing more than luxuries that many people who pay their debts and necessary and reasonable living expenses do without. Therefore, we overrule point of error four.

CONSTITUTIONAL CHALLENGE TO TURNOVER ORDER

In point of error three, DeVore asserts the trial court violated section 1 of the Fourteenth Amendment of the United States Constitution and Article I, section 3 of the Texas Constitution by applying the turnover statute to his monthly income as an attorney. De-Vore argues that it is unconstitutional to not exempt the wages he receives from his professional corporation law firm because this creates a distinction between attorneys drawing wages from a professional corporation and other professionals drawing wages from a professional corporation. See Schultz v. Fifth Judicial Dist. Court of Appeals, 810 S.W.2d at 739 n. 2; and Schultz v. Cadle, 825 S.W.2d at 153-54.

While DeVore makes another good argument, it again is inapplicable to the facts in this case. As stated earlier, DeVore testified that he has not received any money from his law firm since his employment with Larken on March 1, 1994. Accordingly, the turnover order signed after March 1, 1994 never applied to any of the money DeVore had previously received from his law firm. We overrule point of error three.

We affirm the trial court’s judgment.

BILL J. STEPHENS, J., dissents (Sitting by Assignment).

1 . At the time of the turnover order, DeVore testified that the only income he receives comes directly from Larken for his services as an alleged employee attorney of Larken.

2 . In holding the trial court did not abuse its discretion, we do not rule on the merits of the trial court’s statement that the income DeVore received from his law firm was subject to a turnover order.

3 . We seriously question the applicability of the cases refusing to exempt attorney’s fees as “current wages” in a situation where an attorney is paid a salary from a professional corporation law firm. See, e.g., Brink v. Ayre, 855 S.W.2d 44, 45 (Tex.App.—Houston [14th Dist.] 1993, no writ); Ross v. 3D Tower Ltd., 824 S.W.2d 270 (Tex.App.—Houston [14th Dist.] 1992, writ denied); Hennigan v. Hennigan, 666 S.W.2d 322, 325 (Tex.App.—Houston [14th Dist.] 1984), writ ref'd n.r.e. per curiam, 677 S.W.2d 495 (Tex.1984). We, however, will not address this issue because DeVore testified that as of the time of the turnover order, he no longer received any compensation from his law firm.