Sclafani v. Sclafani

870 S.W.2d 608, 1993 WL 540215
CourtCourt of Appeals of Texas
DecidedFebruary 10, 1994
Docket01-93-00494-CV
StatusPublished
Cited by26 cases

This text of 870 S.W.2d 608 (Sclafani v. Sclafani) 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
Sclafani v. Sclafani, 870 S.W.2d 608, 1993 WL 540215 (Tex. Ct. App. 1994).

Opinions

OPINION

HEDGES, Justice.

In this ease, we must decide whether a party may appeal an order establishing a receivership approximately five years after the entry of the order. We hold that he may not and dismiss the appeal.

The appellant, Richard Sclafani (Richard), and the appellee, Susan Sclafani (Susan), were divorced in 1979.1 Several years after their divorce, at Susan’s request, the trial court appointed a receiver to sell certain real property. Richard now appeals under Tex. Civ.PRAC. & Rem.Code Ann. § 51.014(1) and (2) (Vernon Supp.1998), which authorizes appeals from certain interlocutory orders, complaining that the trial court erred in overruling his motion to set aside the receivership and in ordering the receiver to sell the property.

In point of error one, Richard contends that the trial court erred in overruling his motion to set aside receivership and in ordering the receiver to sell the property because Susan did not file an applicant’s bond, in violation of Tex.R.Civ.P. 695a.2 In point of error two, Richard asserts that the trial court erred in overruling his motion to set aside receivership and in ordering the receiver to sell the property because the receivership “materially changes the terms” of the divorce decree. Susan contends that Richard’s appeal was not timely filed under Tex. CivPraC. & Rem.Code Ann. § 51.014(1) and (2) (Vernon Supp.1993).

Richard and Susan were divorced on August 6, 1979. On October 21, 1986, Susan filed a petition to appoint a receiver to sell the real property at issue. On November 12, Richard and Susan entered into an agreed temporary order stating that they would list the property for sale “immediately.” The agreed temporary order was approved and signed by the trial court on February 16, 1987. For reasons not clear from the record, the property was not sold.

On September 21, 1987, Susan, alleging that the lack of a sale was due to delays caused by Richard, again moved the trial court to appoint a receiver to sell the property. On October 27, 1987, the trial court ordered that if the property “is not sold by March 29, 1988 ... Ted McMorrough is appointed Receiver to take charge and possession of’ the property. The property was not sold by March 29.

On April 17, 1990, Susan moved the court to appoint a substitute receiver. In an order signed on August 10, the court reaffirmed that it was “of the opinion that proper grounds exist for the appointment of a receiver,” removed McMorrough and appointed Lee Wiley as the new receiver. On August 5,1991, Susan, dissatisfied with Wiley, moved the court to remove Wiley and appoint a new receiver. Wiley continued as the receiver. On February 12, 1993, Richard moved, for the first time, to set aside the receivership. He argued that the receivership changed the terms, set out in the divorce decree, under which the property would be sold. On May 4,1993, the trial court, finding that the initial [610]*610problems were not due to any fault of Wiley, ordered that Wiley would be kept as the receiver. In the same order, the court mandated that Wiley sell the property. In a separate order signed on the same date, the court denied Richard’s motion to set aside the receivership. Richard perfected his appeal within 20 days after the trial court’s order denying his motion was signed.3

Section 51.014(1)

Susan contends that Richard’s appeal was untimely filed under section 51.014(1) of the Civil Practice and Remedies Code. That section provides:

A person may appeal from an interlocutory order of a district court, county court at law, or county court that:
(1) appoints a receiver[.]

Tex.Civ.PRAc. & Rem.Code Ann. § 51.014(1) (Vernon Supp.1993). She argues that any appeal must have been brought within 20 days after the original order appointing a receiver was signed.

Because we have found no recent authority for Susan’s contention, we are constrained to resort to mature case law for guidance. For example, in McFarlane v. Greenameyer, 199 S.W. 304 (Tex.Civ.App.—Galveston 1917, no writ), the trial court appointed Clarke as receiver on January 11, 1917. Id. No appeal was perfected from the trial court’s order. Id. On June 7, the trial court removed Clarke as receiver, and two days later appointed Bass. Id. The appellants then perfected their appeal, complaining of the appointment of a receiver. Id. at 305.

The appellees moved to dismiss the appeal. 199 S.W. at 304. They argued that, because the question of the trial court’s right to appoint a receiver was presented when the court signed the original order appointing a receiver, “and the time in which [to] appeal from such adjudication had expired long pri- or to the time this appeal was taken,” the court of appeals should dismiss the appeal. Id. at 304-305.

The disposition of McFarlane was controlled by former article 2079 of the Texas Revised Civil Statutes, then in force, which provided:

An appeal shall lie from an interlocutory order of the district court appointing a receiver or trustee in any cause: Provided, such an appeal is taken within twenty days from the entry of such order.

199 S.W. at 305. The court interpreted the statute as follows:

We do not think this statute should be construed to authorize an appeal from a judgment or order of a court adjudicating the question of whether property in litigation should be taken into the custody of the court and administered by a receiver appointed by the court pending adjudication of the rights of the parties to the suit in the property, unless such appeal is taken within twenty days from the entry of such order....
The purpose of the statute is to grant speedy relief to a person whose property is wrongfully taken from his possession by the summary process of a receivership, but this relief is conditioned upon the prompt exercise by the defendant of his right of appeal in order that the right of plaintiff to a receivership may not be suspended longer than is necessary to have an adjudication of such right by the appellate court.... We cannot bring ourselves to believe that it is the intention of the Legislature, in the enactment of this law, to give a right of appeal every time a receiver is appointed in the course of an administration of property by a court through a receivership.

199 S.W. at 305. Noting that “Appellants did not appeal from the original order of the court taking their property into its custody by its receiver, Clarke,” the court dismissed the appeal. Id.

In Benningfield v. Benningfield, 155 S.W.2d 827 (Tex.Civ.App.—Austin 1941, no writ), the Austin Court of Appeals reached the same result as the McFarlane court. In [611]*611Benningfield, the original order appointing a receiver was signed on May 9,1940. Id. On May 15, another receiver was named to replace the first one. Id.

The appellant filed the appeal bond on June 1. 155 S.W.2d at 827. Thus, the appeal bond was filed 22 days after the original order appointing a receiver was entered. Id. at 828. The court held:

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Bluebook (online)
870 S.W.2d 608, 1993 WL 540215, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sclafani-v-sclafani-texapp-1994.