Katz v. Bianchi

848 S.W.2d 372, 1993 Tex. App. LEXIS 549, 1993 WL 46543
CourtCourt of Appeals of Texas
DecidedFebruary 25, 1993
DocketC14-92-01026-CV
StatusPublished
Cited by31 cases

This text of 848 S.W.2d 372 (Katz v. Bianchi) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Katz v. Bianchi, 848 S.W.2d 372, 1993 Tex. App. LEXIS 549, 1993 WL 46543 (Tex. Ct. App. 1993).

Opinion

OPINION

DRAUGHN, Justice.

Relator petitions this court to issue a writ of mandamus ordering Respondent, Judge Richard Bianchi, to rescind and va-' cate his order of September 15, 1992. That order required relators to pay interim fees in the amount of $200,000 to Jack T. Trot *373 ter for services rendered as Special Master in charge of selling an enterprise owned by relators, William Inglehart (Inglehart) and Larry Fradkin (Fradkin). Relators contend that the order is void because it materially alters and is inconsistent with the two agreed judgments* signed by the parties on October 13, and October 16, 1989, which govern the sale of the business and payment to Trotter. We disagree and deny mandamus.

Relator Jerold B. Katz is the majority shareholder in a group of companies in which Inglehart and Fradkin have minority interests. A dispute regarding the companies arose among the parties, and as a result, Fradkin and Inglehart filed suit against Katz and the companies to dissolve the GC Services Limited Partnership (“GCLP”) through sale of the business. Inglehart and Fradkin also sought distribution of the proceeds to the shareholders in the event of such sale. In October 1989, the trial court entered the two agreed judgments mentioned above. Those judgments purported to settle the disputes between the parties, and named Trotter as a Special Master to effectuate the sale of the business in question. The judgments provided for “a reasonable fee” to be paid to Trotter “to be agreed upon by the counsel for the Consenting Parties,” and set out specific duties and powers with regard to Trotter to enable him to effectively accomplish the sale of GCLP.

The agreed judgments also ordered all consenting parties to cooperate with Trotter to the extent necessary to achieve the purposes of the judgments. In addition, the judgments stated that the trial court retained jurisdiction of the cause to ensure the implementation of the agreed judgments, and to ensure good faith and fair dealing among the parties in effectuating the purpose of the judgments and the operation of the business pending its sale.

In April 1992, a hearing was held concerning, among other matters, payment of an interim fee to Trotter. The trial court specifically reserved a decision on this issue until counsel for each of the consenting parties had an opportunity to discuss and attempt to reach an agreement on the matter. No agreement was reached. Subsequently, on August 28, 1992, another hearing regarding the payment of interim compensation was held. At that hearing, the trial court heard argument and evidence from all parties. Evidence was offered illustrating that Trotter had spent a major portion of each day since his appointment as Special Master dealing with the sale of the business. At the time of the hearing, Trotter had been Special Master in these proceedings for almost three years without having received any compensation for his services. Trotter also testified about rela-tors’ resistance and failure to cooperate with Trotter in the performance of his necessary duties of monitoring and carrying out certain aspects of the business in connection with the ultimate sale. Trotter stated that he had been “frustrated” by relators in every way. At the conclusion of the hearing, the trial judge ordered relators to pay Trotter an interim fee in two installments: $100,000.00 on or before October 1, 1992, and $100,000.00 on or before January 15, 1993. It is from this order that Rela-tors seek mandamus relief. They contend the respondent clearly abused his discretion in ordering such interim fee payments, because he had absolutely no authority to do so under the terms of the agreed judgments. For the reasons hereinafter set out, we find he did have such discretionary authority under the concerned judgments.

Mandamus may issue to correct a “clear abuse of discretion” by the trial court. Walker v. Packer, 827 S.W.2d 833 (Tex.1992). Such an abuse of discretion occurs when a trial court reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916 (Tex.1985). Thus, the determinative issue in this proceeding is whether respondent had the authority to order the payment of interim fees under these agreed judgments.

The two agreed judgments at issue in this case are very similar, but not identical. Both attempt to provide for compensation to Trotter for his services and efforts at *374 selling and operating the company. Specifically, the Fradkin agreed judgment states: Trotter is “To be paid a reasonable fee by GCLP, to be agreed upon by the counsel for the consenting parties.” The Inglehart judgment states: “For his services, Trotter shall be paid a reasonable fee by GCLP, to be agreed upon by the counsel for the consenting parties.”

Relators argue that the language “a reasonable fee” literally means that Trotter may only be paid a sum in one single payment at the successful conclusion of the sale of the business, that sum only to be paid upon agreement by all the parties. If this interpretation is correct, the trial court clearly abused his discretion in ordering the payment of the interim fees to Trotter. After a careful review of the agreed judgments and the respondent’s authority in relation to them, we reach a different conclusion.

The trial court is vested with explicit statutory authority to enforce its judgments, Tex.R.Civ.P. 308, as well as inherent judicial authority to enforce its orders and decrees. Arndt v. Farris, 633 S.W.2d 497, 499 (Tex.1982); Eichelberger v. Eichelberger, 582 S.W.2d 395, 398 (Tex.1979). The only limit on this authority is that enforcement orders may not be inconsistent with the original judgment and must not constitute a material change in substantial adjudicated portions of the judgment. Harris County Appraisal Dist. v. West, 708 S.W.2d 893, 896 (Tex.App.—Houston [14th Dist.] 1986, orig. proceeding). A post-judgment enforcement order may properly require performance of the obligations imposed by the final judgment. Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890, 892 (1956).

In the present case, Trotter offered evidence at the August 28th hearing that rela-tors had repeatedly resisted his efforts to carry out his duties in connection with the sale and operation of the business as set out in the agreed judgments. There was also evidence that Trotter had been forced to turn to the court several times to obtain from relators financial records and other information necessary to perform his duties. At the time of the hearing on the interim fee, Trotter had been working on selling the business for approximately three years. He received no compensation for his services during any of this period.

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Bluebook (online)
848 S.W.2d 372, 1993 Tex. App. LEXIS 549, 1993 WL 46543, Counsel Stack Legal Research, https://law.counselstack.com/opinion/katz-v-bianchi-texapp-1993.