Julie Fischer v. Sam Ramsey, Nancy Ramsey, Kurt Ronacher and Melissa Ronacher

• Court: Court of Appeals of Texas
• Decided: January 7, 2016
• Docket: 01-14-00743-CV
• Status: Published

Opinion

Opinion issued January 7, 2016

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-14-00743-CV ——————————— JULIE FISCHER, Appellant V. SAM RAMSEY, NANCY RAMSEY, KURT RONACHER, AND MELISSA RONACHER, Appellees

On Appeal from the 234th District Court Harris County, Texas Trial Court Case No. 2007-63130

MEMORANDUM OPINION

Appellant, Julie Fischer, challenges the trial court’s denial of her motion to

vacate its order authorizing a receiver to sell real property owned by her and her husband, John Fischer,1 to satisfy a judgment rendered against them in favor of

appellees, Sam Ramsey, Nancy Ramsey, Kurt Ronacher, and Melissa Ronacher, in

appellees’ suit against them for breach of contract and fraud in the sale of a business.

In her sole issue, Fischer contends that the trial court erred in “denying,” for lack of

jurisdiction, her motion to vacate.

We dismiss the appeal for lack of jurisdiction.

Background

In her “Motion to Vacate Order Granting Receiver’s Motion for Consent to

Sell [her] Homestead Property” (“motion to vacate”), Fischer alleged that on July

19, 2013, the trial court, after a jury trial, entered a final judgment awarding

appellees actual damages against her and her husband, jointly and severally, in the

amount of $232,791.08. On May 2, 2014, David A. Fettner, the court-appointed

receiver (“receiver”), filed a “Motion for Consent to Sell Property” to satisfy the

judgment. The receiver sought permission from the trial court to sell the Fischers’

real property, identified as “lot 8” on Norchester Village Drive in Houston. On May

12, 2014, after a hearing at which the Fischers did not appear, the trial court found

that lot 8 constituted their non-homestead, non-exempt property. And it issued an

“Order on Receiver’s Motion for Consent to Sell Property” (“consent order”)

granting the receiver “ownership and possession” of lot 8 and authorizing its sale.

1 Not a party to this appeal.

2 Fischer argued that the trial court erred in authorizing the receiver to sell lot 8

because it is “part of [her] homestead” and exempt from seizure to satisfy appellees’

judgment against her and her husband.2 She asserted that her homestead consists of

three contiguous lots, comprising a total of 0.9 acres. Fischer’s residence is located

on lot 13, and lots 8 and 12 are appurtenant and serve as her backyard. She noted

that a landowner may assert a homestead exemption on lots in addition to the one on

which a dwelling is situated, and an urban homestead, such as hers, may consist of

up to ten acres of land and “be in one or more contiguous lots.”3 Further, “a party

cannot be required to pay unsecured creditors,” as are appellees, “from homestead

proceeds.” To her motion, Fischer attached a subdivision plat and statements from

the Harris County Appraisal District and Harris County Tax Assessor-Collector,

noting a “Partial Residential Homestead” exemption on lot 8.

In his response to Fischer’s motion to vacate, the receiver argued that the trial

court lacked jurisdiction to vacate its May 12, 2014 consent order because Fischer

did not challenge the order until July 10, 2014, almost sixty days after the trial court’s

plenary power had expired. And Fischer “admits that she received the motion” for

consent, which was sent to her via certified and first class mail. The receiver also

2 See TEX. CONST. art. XVI, § 50(a); TEX. PROP. CODE ANN. § 41.002(a) (Vernon 2014). 3 See TEX. PROP. CODE ANN. § 41.002(a).

3 noted that Fischer did not challenge the trial court’s original “Order Requiring

Turnover and Appointing [a] Receiver,” despite notice.

In her brief in support of her motion to vacate, Fischer argued that the trial

court did not lack jurisdiction because it maintained “inherent power (as

distinguished from plenary power . . .) to enforce its judgments for an indefinite

period of time.”

On August 7, 2014, the trial court “denied” Fischer’s motion to vacate its

consent order, concluding that it was “without jurisdiction” because Fischer’s

“attempt to vacate” the order was “untimely.” On September 6, 2014, Fischer

appealed the trial court’s August 7, 2014 order denying her motion to vacate. Six

days later, on September 12, 2014, the receiver, having executed a contract with a

buyer for lot 8, asked the trial court to approve and confirm the sale and approve a

distribution of proceeds.

Jurisdiction

As a threshold matter, the receiver argues that we lack jurisdiction to hear this

appeal because Fischer “failed to timely appeal” the trial court’s consent order,

which “truly forms the basis of her appeal.”

We consider as a matter of law whether we have jurisdiction over an appeal.

See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). Generally,

appeals may be taken only from final judgments. Lehmann v. Har-Con Corp., 39

4 S.W.3d 191, 195 (Tex. 2001). Interlocutory orders may be appealed only if

permitted by statute. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex.

2001); see TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a) (Vernon Supp. 2015)

(authorizing interlocutory appeals). To invoke an appellate court’s jurisdiction over

an appealable order, a timely notice of appeal must be filed. See TEX. R. APP. P.

25.1, 26.1.

“A judgment is final for purposes of appeal if it disposes of all pending parties

and claims in the record.” Lehmann, 39 S.W.3d at 195. However, certain post-

judgment orders, such as turnover orders and orders that resolve certain discrete

matters in receivership proceedings, may be final for purposes of appeal, even if

these orders do not dispose of all pending parties and claims. See Burns v. Miller,

Hiersche, Martens & Hayward, P.C., 909 S.W.2d 505, 506 (Tex. 1995) (turnover

order final and appealable); Huston v. Fed. Deposit Ins. Corp., 800 S.W.2d 845, 848

(Tex. 1990) (orders rendered during receivership appealable); London v. London,

349 S.W.3d 672, 674 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (orders

resolving “discrete issues in connection with any receivership are appealable”).

A “turnover” order is a statutory procedural device through which judgment

creditors may reach the assets of a judgment debtor that are otherwise difficult to

attach or levy by ordinary legal process. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 31.002 (Vernon 2015) (the “turnover statute”); Beaumont Bank, N.A. v. Buller, 806

5 S.W.2d 223, 224 (Tex. 1991). A turnover order “requires the debtor to bring to the

[c]ourt all documents or property used to satisfy a judgment” and thereby places the

“burden of production” on the debtor rather than the on a “creditor attempting to

satisfy his judgment.” Buller, 806 S.W.2d at 226. It is this aspect of a turnover

order, i.e., that it acts “in the nature of a mandatory injunction,” that makes it

appealable. Kennedy v. Hudnall, 249 S.W.3d 520, 524 (Tex. App.—Texarkana

2008, no pet.); see Bahar v. Lyon Fin. Servs., Inc., 330 S.W.3d 379, 386 (Tex.

App.—Austin 2010, pet. denied) (“[I]t is the ability of the turnover order to be read

to act as a mandatory injunction as to the judgment debtor or transferee that allows

courts to deem it so.”). “[A] turnover order is a final, appealable judgment.” Burns,

909 S.W.2d at 506. And a trial court may render a number of turnover orders, all of

which may be final and appealable if they are, in effect, mandatory injunctions.

Bahar, 330 S.W.3d at 387. “The finality of a judgment or order is controlled by its

substance, not its label or form.” Mindis Metals, Inc. v. Oilfield Motor & Control,

Inc., 132 S.W.3d 477, 482 (Tex. App.—Houston [1st Dist.] 2004, pet. denied).

Here, the record shows that the trial court, in its original “Order Requiring

Turnover and Appointing a Receiver,” appointed the receiver and authorized him to

“take possession of all non-exempt property.” And it ordered Fischer to deliver to

the receiver certain documents and records regarding her assets. It is undisputed that

she did not appeal this order. See TEX. CIV. PRAC. & REM. CODE ANN.

6 § 51.014(a)(1), (2) (authorizing appeal from interlocutory order “appoint[ing] a

receiver” or “overrul[ing] a motion to vacate an order that appoints a receiver”);

Bahar, 330 S.W.3d at 387; Kennedy, 249 S.W.3d at 524 (appeal may be taken from

turnover order acting as mandatory injunction).

The trial court’s turnover and receivership order also provides that “[a]ll real

property sales must be individually ordered, after notice and opportunity for

hearing.” And, in its subsequent consent order, the trial court concluded that lot 8

constituted Fischer’s non-homestead, non-exempt property. And it granted the

receiver “ownership and possession” of lot 8 and authorized him to enter into a sales

contract “at a price [he] deem[ed] reasonable.” Because the trial court’s consent

order constitutes a direction or authorization to the receiver, but does not direct

Fischer to take any action, it cannot be read as an injunctive order and, thus, does

not fall under the exception for turnover orders. See Art Inst. of Chicago v. Integral

Hedging, L.P., 129 S.W.3d 564, 570 (Tex. App.—Dallas 2003, no pet.); see also

Kennedy, 249 S.W.3d at 524 (order directing sheriff to take “affirmative action” to

“seize and sell the property,” but not ordering “anything collected or turned over”

by judgment debtor, not mandatory injunction and, therefore, “not a turnover

order”).

However, in Huston v. F.D.I.C., the Texas Supreme Court concluded that “a

trial court’s order that resolves a discrete issue in connection with any receivership

7 has the same force and effect as any other final adjudication of a court, and thus, is

appealable.” 800 S.W.2d 845, 847 (Tex. 1990) (analogizing to probate orders).

Subsequently, in Crowson v. Wakeman, the supreme court modified its test as

follows:

If there is an express statute, such as the one for the complete heirship judgment, declaring the phase of the probate proceedings to be final and appealable, that statute controls. Otherwise, if there is a proceeding of which the order in question may logically be considered a part, but one or more pleadings also part of that proceeding raise issues or parties not disposed of, then the probate order is interlocutory.

897 S.W.2d 779, 783 (Tex. 1995); see also De Ayala v. Mackie, 193 S.W.3d 575,

578 (Tex. 2006) (noting Crowson modified Hutson). Under this analysis, in the

absence of a statute specifically declaring an order at the end of a particular phase of

the proceedings to be a final judgment, the trial court’s order must dispose of all

issues in a particular “phase of the proceeding.” London, 349 S.W.3d at 678 (Frost,

J., concurring).

Here, the trial court’s consent order, considered in contrast with its prior

turnover and receivership order, did finally adjudicate lot 8 as Fischer’s non-

homestead, non-exempt property, granted the receiver possession and control, and

authorized its sale, with only the final closing of a specific sale subject to approval.

Thus, the trial court’s consent order constitutes a final, appealable order. See

Crowson, 897 S.W.2d at 783; Hutson, 800 S.W.2d at 847.

8 Generally, to confer jurisdiction on an appellate court, a notice of appeal must

be filed within thirty days after the date a final order is signed. See TEX. R. APP. P.

26.1(b). The deadline to file a notice of appeal is extended to ninety days after the

date the order is signed if any party timely files a motion for new trial, motion to

modify or reinstate, or, under certain circumstances, a request for findings of fact

and conclusions of law. See TEX. R. APP. P. 26.1(a); see also TEX. R. CIV. P. 297,

329b(a), (g). A motion for new trial, if any, must be filed within thirty days after the

date the judgment is signed. TEX. R. APP. P. 329b(a).

However, Fischer did not file a notice of appeal or any post-judgment motions

seeking to modify the trial court’s May 12, 2014 consent order within thirty days

after it was signed. See TEX. R. APP. P. 26.1(a). Thus, the deadline to file her notice

of appeal expired on June 12, 2014. Even were we to construe Fischer’s motion to

vacate as a motion for new trial, because she not only sought to vacate the trial

court’s consent order but also a new judgment in her favor, she did not file her

motion until July 10, 2014, almost sixty days after the trial court signed its consent

order. See TEX. R. APP. P. 329b(a). Accordingly, we hold that we lack jurisdiction

over an appeal from the trial court’s consent order. See TEX. R. APP. P. 25.1, 26.1.

In her notice of appeal, Fischer states that she appeals from the “trial court’s

‘Order on [her] Motion to Vacate,” rendered on August 7, 2014.” However, the

deadline for filing her notice of appeal did not run from that date. Rather, it ran from

9 the date of the signing of the consent order. See Naaman v. Grider, 126 S.W.3d 73,

74 (Tex. 2003); Powell v. Girly Girl, L.P., No. 01-14-00654-CV, 2015 WL 1061095,

at *1 (Tex. App.—Houston [1st Dist.] Mar. 10, 2015, no pet.) (mem. op.); see also

In re Estate of Garza, No. 13-14-00730-CV, 2015 WL 3799370, at *4 (Tex. App.—

Corpus Christi June 18, 2015, no pet.) (mem. op.) (ruling on motion to vacate not

independently appealable); see also Emmott v. Boudreaux, No. 01-12-00951-CV,

2013 WL 127567, at *1 (Tex. App.—Houston [1st Dist.] Jan. 10, 2013, pet. dism’d

w.o.j.) (mem. op.) (order dismissing motion for new trial not independently

appealable).

Conclusion

Terry Jennings Justice

Panel consists of Justices Jennings, Higley, and Brown.