Tedde R. Blunck v. Cathy A. Blunck

Opinion

ACCEPTED 03-15-00128-CV 7209261 THIRD COURT OF APPEALS AUSTIN, TEXAS 10/2/2015 2:24:20 PM JEFFREY D. KYLE CLERK CAUSE NUMBER 03-15-00128-CV

IN THE COURT OF APPEALS FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS FOR THE THIRD COURT OF APPEALS DISTRICT 10/2/2015 2:24:20 PM AUSTIN, TEXAS JEFFREY D. KYLE Clerk

TEDDE R. BLUNCK,

Appellant, V.

CATHY A. BLUNCK,

Appellee.

ON APPEAL FROM THE 22ND DISTRICT COURT, HAYS COUNTY, TEXAS TRIAL COURT CAUSE NO. 11-1217

APPELLANT’S REPLY BRIEF

RESPECTFULLY SUBMITTED:

TEDDE R. BLUNCK, PRO SE 502 QUITMAN STREET P O BOX 1152 PITTSBURG, TEXAS 75686 TELEPHONE: (903) 855-8460 TELECOPIER: (903) 855-8465 E-MAIL: tblunck@yahoo.com

i Identity of Parties and Counsel

Appellant/Petitioner: Petitioner/Appellant’s Appellate Counsel: Tedde R. Blunck Tedde R. Blunck, Pro Se 502 Quitman Street 502 Quitman Street P O Box 1152 P O Box 1152 Pittsburg, Texas 75686 Pittsburg, Texas 75686 Telephone: (903) 855-8460 Telephone: (903) 855-8460 Telecopier: (903) 855-8465 Telecopier: (903) 855-8465 E-mail: tblunck@yahoo.com E-mail: tblunck@yahoo.com

Appellee/Respondent: Respondent/Appellee’s Appellate Counsel: Cathy A. Blunck Mr. Karl E. Hays 1433 Preston Road, Suite 1707 Law Office of Karl E. Hays, PLLC Dallas, Texas 75254 2101 South Highway 35, Suite 210 Mobile: (214) 668-9468 Austin, Texas 78741 Telecopier: unknown Telephone: (512) 476-1911 E-mail: cablunck@yahoo.com Telecopier: (512) 476-1904 service@haysfamilylaw.com

____________________________________________________

Tedde R. Blunck, Pro Se 502 Quitman Street P O Box 1152 Pittsburg, Texas 75686 Telephone: (903) 855-8460 Telecopier: (903) 855-8465 E-mail: tblunck@yahoo.com

ii TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ii

TABLE OF CONTENTS iii

INDEX OF AUTHORITIES iv

ISSUES PRESENTED 1

STATEMENT OF FACTS 1

ARGUMENT AND AUTHORITIES 2

PRAYER 10

CERTIFICATE OF NUMBER OF WORDS IN BRIEF 11

CERTIFICATE OF SERVICE 11

APPENDIX 12

iii INDEX OF AUTHORITIES CASES PAGE(S)

Bergeron v. Sessions, 561 S.W.2d 551 (Tex. Civ. App.--Dallas 1977, writ ref'd n.r.e.) 9

Freedom Commc'ns, Inc. v. Coronado, 372 S.W.3d 621 (Tex. 2012) 4

In re Shifflet, 462 S.W.3d 528 (Tex. App.—Houston [1st Dist.] 2015), no pet.) 5

In the Interest of E.W., 2015 Tex. App. LEXIS 6588, (Tex. App.—Texarkana, 2015), no pet.) 5

Perez v. Williams, 2015 Tex. App. LEXIS 9059, (Tex. App.—Houston [1st Dist.] 2015), no pet.) 4

Stephenson v. LeBoeuf, 2003 Tex. App. LEXIS 7967, (Tex. App. -- Houston [14th Dist.] 2003, no pet.) 8

Williams Farms Produce Sales, Inc. v. R&G Produce Co., 443 S.W.3d 250, (Tex. App.-Corpus Christi, no pet.) 7

STATUTES

Texas Civil Practice & Remedies Code § 31.002 3

RULES

Texas Rules of Appellate Procedure 38.1(g) 2

Texas Rules of Evidence 201(b) 4

Texas Rules of Evidence 902(1)(a) 5

iv CAUSE NUMBER 03-15-00128-CV

IN THE COURT OF APPEALS

FOR THE THIRD COURT OF APPEALS DISTRICT AUSTIN, TEXAS

ON APPEAL FROM THE 22ND DISTRICT COURT, HAYS COUNTY, TEXAS TRIAL COURT CAUSE NO. 11-1217

REPLY BRIEF OF APPELLANT __________

TO THE HONORABLE COURT OF APPEALS, FIFTH DISTRICT OF TEXAS:

Tedde R. Blunck files this Appellant reply brief which is filed as a

supplement to Appellant’s Brief and prays that the judgment of the District Court

be reversed and that the turn-over order issued by the District Court be vacated.

0 ISSUES PRESENTED

I. Whether the District Court abused its discretion by entering an Order for

turnover relief without any evidence in the record supporting the finding that

Appellant had any non-exempt property that cannot be readily attached or

levied on by ordinary legal process.

II. Whether the District Court abused its discretion because the turnover relief

ordered by the District Court is insufficiently specific regarding the property

to be turned over and extends to exempt property and property of third

parties.

III. Whether the Court abused its discretion when it awarded the Receiver, who

is an attorney, a fee of $300 per hour for all receiver services, his hourly rate

as an attorney, without consideration of a lesser reasonable fee when

performing non-attorney functions and when there is no evidence in the

record to support that the fees are usual and customary or reasonable and

necessary.

STATEMENT OF FACTS

In Appellee’s Statement of the Facts, Appellee argues that Appellant

chooses to interject both argument and opinion in his recitation of the pertinent

facts regarding the case. Appellee argues that her version of the Statement of the

Facts should be the only facts considered by the Court. Appellee’s Statement of

1 the Facts is quite limited and not in disagreement with the Appellant’s Statement of

the Facts. Appellant’s Statement of the Facts is significantly more detailed.

Appellee only disagrees in general and denies all of the Statement of the Facts

provided by the Appellant. The Appellee does not point out to the Court any

particular or specific facts cited by the Appellant that are incorrect or with which

Appellee takes exception. Texas Rules of Appellate Procedure, Rule 38.1(g) states

in pertinent part: “In a civil case, the court will accept as true the facts stated

unless another party contradicts them.” No facts provided by the Appellant were

contradicted by the Appellee. The Appellee only generally denied all of the facts

provided by the Appellant and asked the Court to substitute the Appellee’s version

of the facts, which are only a shortened version of the facts provided by the

Appellant. Appellant requests of the Court accept as true all of the relevant facts

provided by the Appellant, not just the abbreviated version of the facts provided by

the Appellee.

ARGUMENT AND AUTHORITIES

I. THE DISTRICT COURT ABUSED ITS DISCRETION WHEN IT

ENTERED AN ORDER FOR TURNOVER RELIEF WITHOUT ANY

EVIDENCE IN THE RECORD SUPPORTING THE FINDING THAT

APPELLANT HAD ANY NON-EXEMPT PROPERTY THAT CANNOT

BE READILY ATTACHED OR LEVIED ON BY ORDINARY LEGAL

2 PROCESS.

The trial court must have some evidence to establish the necessary

conditions for the application of Texas Civil Practice & Remedies Code § 31.002

exist.

Appellee argues that the evidence necessary to establish the basis for the

District Court’s order stems from the evidence obtained through judicial notice of

the file and the Final Decree of Divorce signed by the District Court on 24 October

2012.

Court Record at Volume 2, page 15 states:

MR. HAYS: I'm asking the court to do two things. One, is first take judicial notice of the file and the decree of divorce.

THE COURT: The request is granted.

MR. HAYS: And that, in and of itself, reflects the property that was awarded to Ms. Blunck. And it is that property, various items of property that we're asking for the court to appoint a receiver to be able to recover.

Appellee states in her brief: “The Final Decree of Divorce reflects that

Appellant was awarded, among other property, an interest in two timeshares, seven

separate bank accounts, life insurance policies insuring Appellant's life as well as a

life insurance policy insuring the life of a third party, travel and hotel award

benefits, timber and mineral interests, loan proceeds from various loans, and a note

receivable. All of these items constitute property that cannot readily be attached or

3 levied on by ordinary legal process.” Appellee does not make this argument to the

District Court. The Appellee provides no evidence to the District Court that any of

the aforementioned items still exist in the possession of the Appellant at the time of

the hearing, some three years after the rendition of the Divorce Decree. The

Appellee has performed no post-judgment discovery in order to represent to the

District Court that the items mentioned in the Divorce Decree still exist at the time

of the hearing in the possession of the Appellant and are in a form that cannot

readily be attached or levied on by ordinary legal process.

The Court in Perez v. Williams, 2015 Tex. App. LEXIS 9059 at 24 states:

“To be the proper subject of judicial notice, an adjudicative fact must be "either (1)

generally known within the territorial jurisdiction of the trial court or (2) capable of

accurate and ready determination by resort to sources whose accuracy cannot

reasonably be questioned." Tex. R. Evid. 201(b); Freedom Commc'ns, Inc. v.

Coronado, 372 S.W.3d 621, 623 (Tex. 2012).” Perez v. Williams, 2015 Tex. App.

LEXIS 9059, (Tex. App.—Houston [1st Dist.] 2015), no pet.) The accuracy of

whether any of the items mentioned in a three year old order currently existed at

the time of the hearing is subject to question, without further proof of their

existence. Additionally, the District Court took judicial notice of the entire file,

including the Final Decree of Divorce. The entire file contains such things as

pleadings, prior testimony, affidavits and the like that cannot be judicially noticed.

4 [W]hile the trial court can take judicial notice of the existence of certain

documents in its records, it may not take judicial notice of the truth of factual

statements and allegations contained in the pleadings, affidavits, or other

documents in the file. In the Interest of E.W., 2015 Tex. App. LEXIS 6588 at 18,

(Tex. App.—Texarkana, 2015), no pet.) "When evidence is the subject of

improper judicial notice, it amounts to no evidence." In re Shifflet, 462 S.W.3d

528, 539 (Tex. App.—Houston [1st Dist.] 2015), no pet.).

Appellee states in her brief the following: “Contrary to Appellant's

assertion, the trust document that Appellee offered into evidence at the hearing on

her request for turnover relief (Movant's Ex. 1) was a certified copy of "The Tedde

R. Blunck Living Trust" and therefore was self-authenticating under Rule

902(1)(A) of the Texas Rules of Evidence.” It should be noted that in Schedule A

of the Trust Document submitted to the Court, pages 27 and 28 of 32 are missing.

The County Clerk would not certify an incomplete document. Even though the

original of the referenced document was recorded, it had been modified in the form

of the document provided by the Appellee to the District Court as Exhibit 1, which

was never recorded and therefore could not have been certified. The fact that this

document was never recorded is evidenced by an Affidavit of the Camp County

Clerk, attached hereto as Exhibit No. 1. Appellee’s assertions to the District Court

and to this Court that the document known as Movant’s Exhibit No. 1, The Tedde

5 R. Blunck Living Trust, was certified by the County Clerk amounts to nothing less

than fraud, for which the Appellee should be appropriately sanctioned.

Volume 2, Page 19 of the Court Record, states in pertinent part: “Your

Honor, I have one additional thing that I wanted to provide to the court. I have

marked as Movant's 2 -- Mr. Breeden already mentioned this and the court knows

it. Mr. Blunck declared bankruptcy. And as the court knows, you specifically asked

the bankruptcy court for permission to be able to go against Mr. Blunck, and the

bankruptcy court has granted you that permission.

They have also -- these particular debts are outside of the bankruptcy.

There's a court order that says specifically we can collect these. He's in a Chapter

13 plan. These reason why I'm presenting -- these are the schedules that Mr.

Blunck submitted. And in those schedules Mr. Blunck represented to the

bankruptcy court that he had exempt property, in addition to what we showed you

with the trust and the contract rights that can be executed pursuant to the turnover

order.

There is [sic] also exempt properties in terms that there's a number of

firearms that he lists in here as being exempt property. [emphasis added] There's

equity interest in properties. And I would tender that to the court and move for its

admission because it's a representation by him that he had over $200,000 of

6 nonexempt property that he is still in possession of, that [sic] we want. Because if

it's over $200,000, it will go a long way toward settling this judgment of 242,000.”

The Appellant contends that the documents of the Bankruptcy Court were

not properly authenticated. Appellee contends that the document, even though not

certified as an exact copy by the Bankruptcy Court is self-authenticating relying on

Williams Farms Produce Sales, Inc. v. R&G Produce Co., 443 S.W.3d 250, (Tex.

App.-Corpus Christi, no pet.). Williams held that documents printed from

government websites are self-authenticating. Id. at 259. Also see Williams at

Footnote 7, Id. at 259. A close review of the schedules submitted to the District

Court as Movant’s Exhibit 2 will show that there is no indication whatsoever that

they were printed from a government website. There is no internet domain address

and there is no date of printing. The schedules submitted to the District Court

clearly were not printed from the Bankruptcy Court website. In fact, Appellee

does not even argue that the schedules were printed from the Bankruptcy Court

website. Additionally, there was no evidence, testimony or argument of counsel

alleging that the schedules were printed from the Bankruptcy Court website.

However, even if self-authenticated as argued by Appellee, the evidence of

exempt property is not grounds for awarding a turnover order against Appellant.

Additionally, the schedules in Bankruptcy court were filed over two years ago.

Appellee asserts to the District Court that because of the schedules, there is over

7 $200,000 in nonexempt property that is still in the Appellant’s possession. The

creditor must show the trial court that: "(1) the debtor owns the property, (2) the

property cannot be readily attached, and (3) the property is not exempt."

Stephenson v. LeBoeuf, 2003 Tex. App. LEXIS 7967, 2003 WL 22097781 at *2

(Tex. App. -- Houston [14th Dist.] 2003, no pet.). There is no evidence to prove

that there is any nonexempt property in the possession of the Appellant at the time

of the hearing. The evidence purportedly submitted to the District Court as

Movant’s Exhibit No. 1, The Tedde R. Blunck Living Trust, Schedule A, shows to

the contrary, as it includes all of the property listed on the Bankruptcy schedules as

non-exempt, making all such property exempt. This is a fact of which Appellee is

fully aware. The Court Record, Volume 2, Page 11 states as follows: MR. HAYS:

“I'm moving for the admission of Movant's 1, which is the Living Trust in which

Mr. Blunck transferred all of his property.” (emphasis added)

III. THE DISTRICT COURT ABUSED ITS DISCRETION WHEN IT

AWARDED THE RECEIVER, WHO IS AN ATTORNEY, A FEE OF $300

PER HOUR FOR ALL RECEIVER SERVICES, HIS HOURLY RATE AS

AN ATTORNEY, WITHOUT CONSIDERATION OF A LESSER

REASONABLE FEE WHEN PERFORMING NON-ATTORNEY

FUNCTIONS AND WHEN THERE IS NO EVIDENCE IN THE RECORD

TO SUPPORT THAT THE FEES ARE USUAL AND CUSTOMARY OR

8 REASONABLE AND NECESSARY.

Appellee argues that the District Court only established the hourly rate of the

Receiver, and did not set the Receiver’s fee. To establish the Receiver’s fee under

the turnover order, is purely a mathematical computation which takes the numbers

of hours of the Receiver’s service times the hourly rate set by the Court. None of

the factors required to be considered by the Court were considered in establishing

the hourly rate.

The value of a receiver's services determines the appropriate amount of

compensation. Bergeron v. Sessions, 561 S.W.2d 551, 554 (Tex. Civ. App.--Dallas

1977, writ ref'd n.r.e.). To determine the value of a receiver's services, courts

consider the following factors:

(1) the nature, extent and value of the administered estate;

(2) the complexity and difficulty of the work;

(3) the time spent;

(4) the knowledge, experience, labor and skill required of, or devoted by the

receiver;

(5) the diligence and thoroughness displayed; and

(6) the results accomplished.

The District Court abused its discretion when it found that the Receiver’s

fees requested were usual and customary. In fact in the words of the Court, it was

9 not even convinced, based on the argument of counsel, that the fee requested was

reasonable, see Court Record, Volume 2, Page 25: “[T] the amount of $300 per

hour is approved as being probably under the fair market value of what receivers

are paid in these types of matters.” There was no evidence presented to the Court

and the Court performed no analysis to come to the conclusion espoused. The

District Court clearly abused its discretion in setting the Receiver’s hourly rate at

$300.

PRAYER

Appellant Tedde R. Blunck respectfully prays that the Judgment of the

District Court granting the Turnover Order be reversed and the Turnover Order be

vacated in all respects.

10 CERTIFICATE OF THE NUMBER OF WORDS CONTAINED IN BRIEF

I hereby certify in accordance with Texas Rules of Appellate Procedure 9.4(i)(3) that the Appellant’s brief contains 2,850 words.

Tedde R. Blunck

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the above Appellant’s Brief was served on Karl Hays, 2101 South Highway 35, Suite 210 Austin, Texas 78741, attorney for Appellee Cathy A. Blunck in accordance with the Texas Rules of Appellant Civil Procedure on October 2, 2015.

11 CAUSE NUMBER 03-13-00074-CV

ON APPEAL FROM THE 22ND DISTRICT COURT, HAYS COUNTY, TEXAS TRIAL COURT CAUSE NO. 11-1217

APPENDIX -EXHIBITS TO APPELLANT’S REPLY BRIEF

TEDDE R. BLUNCK, PRO SE 502 QUITMAN STREET P O BOX 1152 PITTSBURG, TEXAS 75686 TELEPHONE: (903) 855-8460 TELECOPIER: (903) 855-8465 EMAIL: tblunck@yahoo.com

12 TABLE OF CONTENTS

Exhibit No. 1 1