ACCEPTED 01-14-00743-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 5/29/2015 12:27:30 PM CHRISTOPHER PRINE CLERK
NO. 01-14-00743-CV
________________________________________________________________________ FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS IN THE FIRST COURT OF APPEALS 5/29/2015 12:27:30 PM HOUSTON, TEXAS CHRISTOPHER A. PRINE Clerk
JULIE FISCHER, Appellant vs.
SAM RAMSAY, ET AL, Appellees ________________________________________________________________________
From the 234th District Court Harris County, Texas Cause No. 2007-63130 Hon. Wesley Ward presiding ________________________________________________________________________
APPELLEE’S BRIEF ________________________________________________________________________
James E. Thompson State Bar Card No. 24009795 F ETTNER THOMPSON 6700 Sands Point Drive Houston, Texas 77074 713.626.7277 (Tel.) 888.876.2292 (Fax)
Attorney for Appellee David A. Fettner, Receiver IDENTITY OF P ARTIES AND COUNSEL
Appellant:
Julie Fischer
Appellants’ Appellate Counsel:
William K. Vaughn State Bar No. 00797597 WILLIAM K. VAUGHN LAW FIRM 2777 Allen Parkway, Suite 800 Houston, Texas 77019 713.568.2762 (Tel.) 713.568.2732 (Fax)
Appellee:
Sam Ramsey Nancy Ramsey Kurt Ronacher Melissa Ronacher
Appellees’ Post-Judgment Counsel:
Marc L. Ellison State Bar No. 06580600 TOTZ ELLISON & TOTZ, P.C. 2211 Norfolk, Suite 510 Houston, Texas 77098 713.275.0307 (Tel.) 713.275.0306 (Fax)
i Appellee:
David A. Fettner, Court-Appointed Receiver
Appellee’s Appellate Counsel:
James E. Thompson FETTNER THOMPSON State Bar No. 24009795 6700 Sands Point Drive Houston, Texas 77074 713.626.7277 (Tel.) 888.876.2292 (Fax)
ii Table of Contents
Identity of Parties and Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
Key to Record Citations.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Argument and Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
I. Appellant Did Not Timely Perfect Appeal of Relevant Order.. . . . . . . 9
A. Order on Receiver’s Motion for Consent to Sell Property. . . . . . 9
B. Appellant Waited Two Months to File Motion to Vacate . . . . . . 9
C. Appealed Denial of Motion to Vacate to Appear Timely. . . . . . 10
D. Order on Receiver’s Motion for Consent to Sell Property Was Appealable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
II. Reliance on Scheel v. Alfaro Misplaced. . . . . . . . . . . . . . . . . . . . . . . 12
A. Distinguishable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1. Motion for new trial filed by appellees.. . . . . . . . . . . . . 12
2. Receiver appointed via ex parte turnover order. . . . . . . 12
3. Receiver’s sale of appellee’s assets. . . . . . . . . . . . . . . . 13
iii 4. Motion for new trial granted: parties settled.. . . . . . . . . 13
5. Appellees learned of sale and immediately sought to set aside same. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6. Reasons provided by Scheel court.. . . . . . . . . . . . . . . . 14
B. Circumstances Different in Case at Bar .. . . . . . . . . . . . . . . . . 14
III. Appellee Not Meet Burden . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
A. Appellant Does Not Provide Standard. . . . . . . . . . . . . . . . . . . 15
B. Likely Abuse of Discretion Standard. . . . . . . . . . . . . . . . . . . . 16
C. No Argument or Evidence that Trial Court Abused Discretion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Conclusion and Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
iv Index of Authorities
Cases:
Bollard v. Berchelmann, 921 S.W.2d 861 (Tex. App. – San Antonio 1996, no writ).. . . . . . . . . . . . . 17
Castellanos v. Littlejohn, 945 S.W.2d 236, 238 (Tex. App. – San Antonio 1997, orig. proceeding).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Gibson v. Cuellar, 40 S.W.3d 150(Tex. App.–Houston [14th Dist.], no pet.). . . . . . . . . . . . 11, 16
Huston v. Federal Deposit Insurance Corp., 800 S.W.845, 847 (Tex. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
In Re Valdes, No. 01-08-00165-CV (Tex. App. – Houston [1st Dist.], April 24, 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
London v. London, 349 S.W.3d 672, 674-75 (Tex. App.–Houston [14th Dist.] 2011, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Scheel v. Alfaro, 406 S.W.3d 216 (Tex. App.–San Antonio 2013, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 14, 15
Shanley v. First Horizon Home Loan Corp., No. 14-07-010230CV (Tex. App. – Houston [14th Dist.], December 8, 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
v KEY TO RECORD CITATIONS
Appellee will adopt the record citations as set forth in Appellant’s Brief.
The Clerk’s Record is cited as follows:
Original Clerks Record Rec.___
vi STATEMENT OF THE CASE
On July 19, 2010, a Final Judgment was rendered against Appellant Julie
Fischer (“Appellant”) and her husband, John Fischer, and in favor of Plaintiffs Sam
Ramsey, Nancy Ramsey, Kurt Ronacher, and Melissa Ronacher (“Plaintiffs” or
“Judgment Creditors”). Rec. 48-50. After Appellant failed to satisfy the judgment,
Judgment Creditors sought the appointment of a post-judgment receiver. On January
13, 2014, David A. Fettner, was appointed receiver “over each defendant’s non-
exempt assets” by the 234th Judicial District Court of Harris County, Texas (“234th
JDC”). Rec. 63-74.
On May 2, 2014, the Receiver filed his Motion for Consent to Sell Property
with the 234th JDC. Rec. 114. The Receiver sought to sell real property “next to the
lot where the Judgment Debtors reside.” Rec. 222. The real property that was
subject to the motion was 0 Norchester Village Drive, Houston, Texas 77070
(sometimes “Property”). There are no improvements on the property. Rec. 222. The
Judgment Debtors reside at 13419 Balcrest Drive, Houston, Texas 77070.
The Motion for Consent to Sell Property was properly served upon Appellant
and her husband. Rec. 111, 113, and 118. Appellant failed to respond to the motion
nor participate at the oral hearing on said motion. The Court entered its Order on
Receiver’s Motion for Consent to Sell Property on May 12, 2014 (“Order”). Rec.
1 147. In its Order, the 234th JDC found the following:
* Judgment Debtors for whom this Court-Appointed Receiver has been
appointed is the owner of the real property commonly referred to as 0
Norchester Village Drive, Houston, Texas 77070;
* Property was determined not to be a homestead; and
* Property is non exempt.
Rec. 239-242. No appeal was taken of the trial court’s Order wherein it determined
that the Property was not a homestead and non exempt.
Sixty-one days after the Order, on July12, 2014, Appellant Julie Fischer filed
her motion to vacate the 234th JDC’s Order on Receiver’s Motion for Consent to
Sell Property (“Motion to Vacate”). Rec. 20-27. In Appellant’s Motion to Vacate,
she does not argue that she did not receive notice of the Receiver’s Motion for
Consent to Sell Property. Id. The Receiver filed a response to Appellant’s Motion
to Vacate. Rec. 38-151. Thereafter, the Court entered its Order on Debtor’s Motion
to Vacate on August 7, 2014. Rec. 219-220. In said order, the Court denied
Appellant’s Motion to Vacate.
Appellant filed her Notice of Appeal giving notice of her intent to appeal the
trial court’s Order on Debtor’s Motion to Vacate rendered on August 7, 2014. Rec.
268-269.
2 STATEMENT OF F ACTS
1. Judgment Rendered Against Judgment Debtors for Fraud
On July 19, 2010, a Final Judgment was rendered against Appellant Julie
Fischer and her husband, John Fischer (“Judgment Debtors”), and in favor of
Plaintiffs Sam Ramsey, Nancy Ramsey, Kurt Ronacher, and Melissa Ronacher. Rec.
48-50. The jury rendering the judgment unanimously found that Judgment Debtors
had committed fraud against the Plaintiffs. Rec. 51-62.
2. Receiver Appointed
After said judgment remained unsatisfied for more than three years, Plaintiffs
sought the appointment of a post-judgment receiver. On January 13, 2014, David A.
Fettner (“Appellee Fettner”), was appointed receiver “over each defendant’s non-
exempt assets” by the 234th JDC of Harris County, Texas in its Order Requiring
Turnover and Appointing Receiver (“Order Appointing Receiver”). Rec. 63-74.
3. Judgment Debtors Fail to Comply with Court’s Order / Receiver
Upon his appointment as receiver, Appellee Fettner summoned Judgment
Debtors to appear and provide information in accordance with the Order Appointing
Receiver. Specifically, Appellee Fettner sent a Notice of Appointment of Receiver
and Notice to Appear to Judgment Debtor John Fischer on January 27, 2014. Rec.
75-89. Said summons was returned “unclaimed.” Rec. 90-91. Appellee Fettner also
3 sent a Notice of Appointment of Receiver and Notice to Appear to Appellant
Fischer on January 27, 2014. Rec. 92-106. Said summons was also returned
“unclaimed.” Rec.107 - 108. Despite the obligations to cooperate with the receiver
set forth in the Order Appointing Receiver, the Judgment Debtors avoided the
Receiver’s requests and ignored the mandates of the 234th JDC.
4. Order to Sell
On May 2, 2014, the Receiver filed his Motion for Consent to Sell Property
with the 234th JDC. Rec. 110-135. The Receiver sought to sell real property “next
to the lot where the Judgment Debtors reside.” Rec. 222. The real property that was
subject to the motion was 0 Norchester Village Drive, Houston, Texas 77070
(“Property”). There are no improvements on the Property. Rec. 222. The Judgment
Debtors reside at 13419 Balcrest Drive, Houston, Texas 77070. The motion and
notice of oral hearing on same were properly served upon the Judgment Debtors. In
fact, Appellant admitted receiving said motion. Rec. 40, 146, Clip 1 & 2. Appellant
Julie Fischer failed to respond to the motion or participate at the oral hearing. The
Court entered its Order on Receiver’s Motion for Consent to Sell Property on May
12, 2014. Rec. 147-150.
5. No Appeal Taken of Said Order
In its Order on Receiver’s Motion for Consent to Sell Property, the 234th
4 JDC found that the Judgment Debtors were the owners of the Property located 0
Norchester Village Drive, Houston, Texas 77070 and ordered that David A. Fettner,
Court-Appointed Receiver “shall have ownership and possession of the Property,
which is determined not to be a homestead, to the exclusion of all others.” Rec. 147-
150. The Court further found that the Property to be“non exempt.” Id. No appeal
was taken of the Order on Receiver’s Motion for Consent to Sell Property
containing the 234th JDC’s findings and determinations related to the Property.
6. Motion to Vacate Order to Sell
On July10, 2014, Appellant Julie Fischer filed her motion to vacate the 234th
Order on Receiver’s Motion for Consent to Sell Property (“Motion to Vacate”).
Rec. 20-37. Appellant’s Motion to Vacate does not argue: 1) that she was not
properly served, nor 2) that she was not provided notice of the Receiver’s motion.
Id. The Receiver filed his Receiver’s Response to Julie Fischer’s Motion to Vacate
Order Granting Receiver’s Motion for Consent to Sell Defendant’s Homestead
Property on July 25, 2015 arguing in part that the Court lacked jurisdiction to vacate
its Order on Receiver’s Motion for Consent to Sell Property. Rec. 41-44.
Additionally, the Receiver argued, that even if the Court did have jurisdiction, that
Judgment Debtors failed to assert any alleged exemption related to the Property to the
Court as required by Texas law. Rec. 38-168. The Appellant had the opportunity to
5 assert any alleged exemption related to the Property and failed to participate. The
Court denied Appellant’s Motion to Vacate on August 7, 2014. Rec. 219-220.
7. Appeal of Order Denying Motion to Vacate
On August 7, 2014, Appellant Fischer filed her Notice of Appeal of the 234th
JDC’s Order on Debtor’s Motion to Vacate. Rec. 268-269.
6 SUMMARY OF THE ARGUMENT
The 234th JDC entered its Order on Receiver’s Motion for Consent to Sell
Property on May 12, 2014. Rec. 147- 150. In said order, the Court found and
determined that the Judgment Debtor was the owner of the Property located at 0
Norchester Village Drive, Houston, Texas 77070. Id. Additionally, the Court found
and determined that the Property was not “a homestead” and was “non exempt.” Id.
And, as Appellee David A. Fettner is the “Court-Appointed Receiver over the non-
exempt assets of Julie Fischer and/or John Fischer, [he] shall have ownership and
possession of the Property ... to the exclusion of all others.” Id. Appellant was
served with and received notice of the motion and chose to not participate.
Additionally, no appeal was taken of the trial court’s Order on Receiver’s Motion
for Consent to Sell Property which set forth the Court’s findings and determinations
related to the Property.
Appellant Fischer has demonstrated a concerted effort to avoid satisfying the
Final Judgment. She willfully ignored the requests of the trial court’s receiver. Rec.
38-168. Even though she was served with a copy of the Receiver’s Motion for
Consent to Sell Property and notice of oral hearing thereon, she intentionally failed
to participate in same. She had the opportunity to provide argument and evidence to
the trial court related to the Property, yet she decided to again ignore the motion and 7 not attend the hearing. She failed to timely appeal the Court’s Order on Receiver’s
Motion for Consent to Sell Property. It was not until sixty-one days after the Order
on Receiver’s Motion for Consent to Sell Property was entered that Appellant
Fischer attempted to address the Court’s order via her Motion to Vacate.
When, the 234th JDC denied her motion, Appellant appealed the order denying
her Motion to Vacate rather than appealing the court’s Order on Receiver’s Motion
for Consent to Sell Property. The appeal of the Order on Debtor’s Motion to
Vacate may be an attempt to appear timely. However, the true issues of which
Appellant complains are contained in the Court’s Order on Receiver’s Motion for
Consent to Sell Property of which she failed to appeal, timely or otherwise. Rec.
The trial court’s Order on Receiver’s Motion for Consent to Sell Property
resolved a discrete issue in connection with the receivership. The Order on
Receiver’s Motion for Consent to Sell Property has the same force and effect as
any other final adjudication of a court, and thus, is appealable. Because Appellant did
not timely perfect her appeal from the trial court’s Order on Receiver’s Motion for
Consent to Sell Property, said appeal has not been perfected.
8 ARGUMENT AND AUTHORITIES
I. Appellant Did Not Timely Perfect Appeal of Relevant Order
A. Order on Receiver’s Motion for Consent to Sell Property
Appellant did not timely perfect the order which truly forms the basis of her
complaint on appeal. The trial court’s Order on Receiver’s Motion for Consent to
Sell Property rendered on May 12, 2014 contains the findings and determinations
related to the Property. The Order on Receiver’s Motion for Consent to Sell
Property sets forth the following:
* Judgment Debtors for whom this Court-Appointed Receiver has been
appointed is the owner of the real property commonly referred to as 0
* Property is non exempt. Rec. 239-242.
B. Appellant Waited Two Months to File Motion to Vacate
Despite being served with a copy of Receiver’s Receiver’s Motion for
Consent to Sell Property, Appellant Fischer did not file a response nor appear at the
oral hearing on same. The Court entered its Order on Receiver’s Motion for
Consent to Sell Property on May 12, 2014. Appellant Fischer did not appeal the
9 Court’s Order on Receiver’s Motion for Consent to Sell Property. About sixty
days following the trial court entering its Order on Receiver’s Motion for Consent
to Sell Property, Appellant Fischer filed her Motion to Vacate the Court’s Order on
Receiver’s Motion for Consent to Sell Property. The Court denied her Motion to
Vacate. Rather than appealing the Order on Receiver’s Motion for Consent to Sell
Property entered on May 12, 2014, Appellant Fischer instead filed a notice of appeal
of “the trial court’s ‘Order on Debtor’s Motion to Vacate’ rendered on August 7,
2014.” Rec. 268-269.
C. Appealed Denial of Motion to Vacate to Appear Timely
The trial court denied her Motion to Vacate and entered its Order on Debtor’s
Motion to Vacate on August 7, 2014. Thirty days later, on September 6, 2014,
Appellant Fischer filed her Notice of Appeal. Rec. 268-269. Appellant attempts to
appear as if she timely appealed an adverse order of the trial court. However, the
order at the heart of Appellant’s complaints is not the Order on Debtor’s Motion to
Vacate entered in August 2014. Rather, it is the Order on Receiver’s Motion for
Consent to Sell Property entered months earlier on May 12, 2014. Appealing the
Order on Debtor’s Motion to Vacate is an attempt to appear timely despite her
failure to timely appeal the order that truly forms the basis of her complaints – Order
on Receiver’s Motion for Consent to Sell Property. As stated, any appeal of the
10 findings and determinations contained in the Order on Receiver’s Motion for
Consent to Sell Property is too late.
D. Order on Receiver’s Motion for Consent to Sell Property Was
Appealable
The trial court’s Order on Receiver’s Motion for Consent to Sell Property
resolved a discrete issue in connection with the receivership. The Texas Supreme
Court has held that “orders which resolve discrete issues in connection with any
receivership are appealable.” Huston v. Federal Deposit Insurance Corp., 800
S.W.845, 847 (Tex. 1990). While the matter before the Court in Huston dealt with
insolvent banks in receivership, the Fourteenth Court of Appeals has cited Huston in
support of cases involving receivership under the turnover statute. London v.
London, 349 S.W.3d 672, 674-75 (Tex. App.–Houston [14th Dist.] 2011, no pet.). The
Order on Receiver’s Motion for Consent to Sell Property has the same force and
effect as any other final adjudication of a court, and thus, must be appealed. Gibson
v. Cuellar, 440 S.W.3d 150(Tex. App.–Houston [14th Dist.], no pet.). Given that
Appellant did not timely appeal the Order on Receiver’s Motion for Consent to
Sell Property, Appellant’s appeal should dismissed for want of jurisdiction. The
appeal at bar is nothing more than an attempt by Appellant to appear timely by trying
to bootstrap on the date of what is essentially the Court’s denial of a motion to
11 reconsider an order that had already become final.
II. Reliance on Scheel v. Alfaro Misplaced
A. Distinguishable
Appellant maintains that Scheel v. Alfaro is “directly on point.” Appellant’s
Brief, Pg. 8. However, a closer review of the case reveals that it is clearly
distinguishable.
1. Motion for new trial filed by appellees.
As correctly set forth in Appellant’s Brief, in Scheel v. Alfaro, “[o]n July 15,
2010, a final judgment was rendered in favor of [Pamela] Scheel...”. Appellant’s
Brief, Pg. 8; Scheel v. Alfaro, 406 S.W.3d 216, 220 (Tex. App.–San Antonio 2013,
pet. denied). The defendants, Primera Energy Partners, LLC and Brian Alfaro
(collectively “Alfaro”), “timely filed a motion for new trial on August 16, 2010.” Id.
In the case at bar, there was no timely motion for new trial filed.
2. Receiver appointed via ex parte turnover order.
The receiver in Scheel v. Alfaro was appointed via ex parte turnover orders.
Scheel, at 220. There is some discussion as to whether Alfaro was aware of this fact.
The court’s opinions makes reference to the fact that “[c]opies of the turnover orders
were not provided” to Alfaro by Scheel. In the case at bar, there was no such ex parte
application to appoint receiver (or any other motion). Additionally, copies of the
12 Order Appointing Receiver were repeatedly forwarded to Appellant Fischer.
3. Receiver’s sale of appellees’ assets.
The Scheel receiver, “while the motion for new trial was pending and the
parties were in settlement negotiations”, “conducted a courthouse-steps sale without
notice to appellees or their counsel.” Scheel, at 220. “In consideration for ...
$4,020.00, [the receiver] conveyed to Scheel virtually all of appellees’ assets.” Id.
In the present case, Appellant Fischer was served with a copy of the Receiver’s
Motion for Consent to Sell Property and given notice of the oral hearing for same.
Unlike Alfaro – whose non-participation was due to a lack of notice – Appellant
Fischer was properly noticed and intentionally chose not to participate.
4. Motion for new trial granted; parties settled.
“On September 28, 2010, the trial court granted appellee’s motion for new
trial.” Id. at 220. No such motion was granted in the present case. In Scheel, the
parties settled the underlying suit in January 2011. Id. At 221. Additionally, a
Satisfaction of Judgment on January 25, 2011 which specifically stated that the July
15, 2010 judgment “is paid in full, and the Defendants and sole judgment debtors,
[Alfaro and PEP], are hereby released and discharged from” the final judgment. Id.
No settlement was reached in the present case and the judgment remains unsatisfied.
13 5. Appellees learned of sale and immediately sought to set aside
same.
On April 1, 2011, the receiver filed a motion to approve the receiver’s report.
Id. It was at this time that the appellees were notified “that a receiver’s sale had been
conducted on September 21, 2010, and a bill of sale had been conveyed to Scheel...”.
Id. On April 14, 2011, the appellees took action and sought to set aside the receiver’s
sale. Id. The trial court granted appellee’s motion and Scheel appealed. In the
present case, Appellant was provided notice of all of the Receiver’s actions and chose
to not participate and demonstrate to the Court any defense or exemption.
6. Reasons provided by Scheel court.
The Scheel court provided many reasons for its affirming the trial court’s
judgment. The court held that the failure of the receiver to give notice or
insufficiency of the notice given will ordinarily render the sale invalid. Id. at 223.
In addition, the court held that the trial court, in its discretion, may have determined
the $4,020.00 for all of the assets listed in the turnover orders was a grossly
inadequate price.” Id. The court held that given all the circumstances in Scheel, they
could not “conclude the trial court acted outside its discretion in doing so.” Id. at
224. None of the facts in Scheel are present in the case at bar.
B. Circumstances Different in Case at Bar
14 The Scheel court discussed at length that the validity of a turnover order
requires that the underlying debt judgment be final. Id. at 224. The turnover order
rested on the July 15, 2010 judgment. Id. “When the trial court granted the motion
for new trial, the July 15, 2010 judgment could no longer support the turnover orders,
which in turn, became a nullity.” Id. Not only was the motion for new trial granted,
but Scheel filed a Satisfaction of Judgment in which she stated “the July 15, 2010
judgment had been paid in full and appellees were released and discharged from the
judgment.” Id. The court of appeals “conclude[d] the judgment had no further force
or authority and the turnover orders ‘lost their teeth.’” Id. All of the extraordinary
circumstances upon which Scheel was based are not present in the case at bar.
Simply put, Scheel is not “on point.”
III. Appellant Did Not Meet Burden
A. Appellant Does Not Provide Standard
Appellant fails to provide to the Court any standard of review for her appeal
of the Order on Debtor’s Motion to Vacate wherein the trial court denied her
motion to vacate a post-judgment order that is considered to be final (i.e., Order on
Receiver’s Motion for Consent to Sell Property). In all candor to the tribunal,
Appellee was also unable to locate a standard of review applicable to a trial court’s
denial of a motion to vacate a post-judgment order related to a receivership. The case
15 found and cited dismissed the appellant’s appeal as untimely before discussing a
standard of review.
Appellee is under the impression that no standard of review is fitting because
such an issue should not be reached. As demonstrated in the case of Gibson v.
Cuellar, this Court is without jurisdiction to review the Order of the Court because
the appeal was made out of time. Gibson v. Cuellar, No. 14-12-00644-CV (Tex. App.
– Houston [14th Dist.], Sept. 5, 2013). Because this Court is without jurisdiction to
review the receiver-related order at the heart of Appellant’s appeal – Order on
Receiver’s Motion for Consent to Sell Property -- the issue of the standard of
review should not be reached. Id.
B. Likely Abuse of Discretion Standard
However, if the Court determines it has jurisdiction over the issues presented
by Appellant, then the standard of review should likely be an abuse of discretion. In
cases considering trial court orders on motions for reconsideration, the appellate
courts generally use a standard based upon the underlying motion to be
reconsidered. See, e.g., In Re Valdes, No. 01-08-00165-CV (Tex. App. – Houston [1st
Dist.], April 24, 2008)(determining that a trial court that granted a motion for
reconsideration after losing its plenary power abused its discretion); Shanley v. First
Horizon Home Loan Corp., No. 14-07-010230CV (Tex. App. – Houston [14th Dist.],
16 December 8, 2009)(citing the standard of review for a motion to reconsider a prior
summary judgment as abuse of discretion); Bollard v. Berchelmann, 921 S.W.2d 861
(Tex. App. – San Antonio, 1996)(finding the standard of review to be abuse of
discretion). The test for abuse of discretion is whether the trial court acted without
reference to any guiding rules or principles, acted in an arbitrary or unreasonable
manner, or when there is a clear failure by the trial court to analyze or apply the law
correctly. See Bollard at 863; Castellanos v. Littlejohn, 945 S.W.2d 236, 238 (Tex.
App. – San Antonio, 1997).
C. No Argument or Evidence that Trial Court Abused Discretion
Appellant has failed to carry her burden nor met the standard of review – any
standard of review. To the extent that this court finds the applicable standard to be
an abuse of discretion, there has been no argument that the trial court abused its
discretion in denying Appellant’s Motion to Vacate. Additionally, the Appellant
failed to provide evidence on which this court can decide that any such abuse existed.
17 CONCLUSION AND P RAYER
Appellant is appealing the 234th Judicial District Court’s Order on Debtor’s
Motion to Vacate. However, the appeal of said order is nothing more than an
attempt to have her appeal appear timely. Appellant is clearly attempting to appeal
the Order on Receiver’s Motion for Consent to Sell Property wherein the trial
court made certain findings and determination related to the Property. Said order
resolved discrete issues in connection with a receivership and was therefore
appealable. Appellant failed to appeal the Order on Receiver’s Motion for Consent
to Sell Property.
The trial court did not abuse its discretion in denying Appellant’s motion to
vacate. There has been no arguments made or evidence proffered demonstrating that
the trial court abused its discretion in denying the Motion to Vacate. Appellee
requests that the Court affirm the trial court’s order denying Appellant’s Motion to
Vacate.
18 CERTIFICATE OF COMPLIANCE
The undersigned hereby certifies that pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure, Appellee’s Brief contains 3,271words including and excluding the contents mentioned in Rule 9.4(i)(1) of the Texas Rules of Appellate Procedure.
/s/ James E. Thompson James E. Thompson
CERTIFICATE OF SERVICE
The undersigned counsel certifies that on May 29, 2015 a true and correct copy of the Appellee’s Brief has been served on all parties and/or counsel of record in accordance with the Texas Rules of Appellate Procedure.
William K. Vaughn WILLIAM K. VAUGHN LAW FIRM 2777 Allen Parkway, Suite 800 Houston, Texas 77019 713.568.2762 (Tel.) 713.568.2732 (Fax)
Marc L. Ellison TOTZ ELLISON & TOTZ, P.C. 2211 Norfolk, Suite 510 Houston, Texas 77098 713.275.0307 (Tel.) 713.275.0306 (Fax)