Arnulfo Hernandez v. Athelia Rooker ( 2016 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00139-CV
ARNULFO HERNANDEZ APPELLANT
V.
ATHELIA ROOKER APPELLEE
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FROM THE 325TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 325-478228-10
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MEMORANDUM OPINION1
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Appellant Arnulfo Hernandez appeals from the trial court’s April 2, 2015
order holding him in contempt and reinstating a prior, suspended order
establishing a receivership. We affirm the trial court’s order as modified.
1
See Tex. R. App. P. 47.4.
I. BACKGROUND
A. CHILD SUPPORT AND RECEIVERSHIP
On May 24, 2010, appellee Athelia Rooker filed a petition to adjudicate
parentage of her two children with Hernandez, whom she had never married.
See Tex. Fam. Code Ann. §§ 160.202, 160.601 (West 2014). On May 2, 2012,
the trial court entered a letter ruling, ordering that Rooker was appointed sole
managing conservator and Hernandez was appointed possessory conservator of
the children.2 The trial court concluded that Hernandez had supported the
children inconsistently since 2007 and, therefore, should pay past and future
child-support payments in a lump sum—more than $200,000 as of the date of the
letter ruling—and not in monthly installments.3 See id. § 154.003 (West 2014).
To that end, the trial court, in the letter ruling, appointed a receiver “to sell as
many rental properties owned by [Hernandez]” as necessary to satisfy the
amount. At the conclusion of the letter ruling, the trial court requested that
Rooker’s attorney “prepare the decree and . . . submit all orders to the Court no
later than June 1, 2012.” The record does not reflect that a decree or orders
were submitted or signed in 2012.
2
The order appears to be the result of a trial that was held on April 24,
2012. Neither the clerk’s record nor the reporter’s record contains any further
information about this trial or the facts leading to the letter ruling.
3
That same day, the trial court also entered the required findings in
rendering a child-support order. See Tex. Fam. Code Ann. § 154.130 (West
2014).
2
B. RULE 11 AGREEMENT AND SUSPENSION OF RECEIVERSHIP
Later in 2012, Hernandez and Rooker entered into a rule 11 agreement
under which Rooker agreed to “be restrained from enforcement of the court’s
[letter ruling],” to “take no action to seek the appointment of a receiver to liquidate
real property owned by [Hernandez],” and to allow Hernandez to make periodic,
lump-sum payments into the court’s registry for the support of the children. The
agreement stated that Rooker would take a security interest in two of
Hernandez’s rental properties—a property on Calmont Avenue and a property on
Westhaven Drive—until the full amount stipulated in the agreement was paid.
The agreement was filed with the trial court on December 4, 2012. See Tex. R.
Civ. P. 11.
On March 26, 2013, the trial court signed a formal order memorializing
what was stated in the prior letter ruling, specifically appointing a receiver and
giving him the sole discretion “to sell as many rental properties owned by
[Hernandez]” as necessary to satisfy the arrearage, including but not limited to
the Calmont property, a property on Sandy Lane, and a property in Burleson.
Hernandez filed a motion for new trial on April 25, 2013, arguing that the
March 26 appointment order was an abuse of discretion because the parties had
filed their rule 11 agreement with the court on December 5, 2012, which
expressly dispensed with the necessity of a receiver. The record does not reflect
that the trial court expressly ruled on this motion, but there is a notation at the
3
bottom of the motion indicating that a hearing would not be “needed” because
“[e]ntering 5-1 final order.” There is no order dated May 1, 2013 in the record.
On July 2, 2013, the trial court entered two orders: (1) a second order
appointing the same receiver to “take charge and possession” of Hernandez’s
“rental properties”—including the Calmont, Sandy, and Burleson properties and
“any other real properties held in the name of [Hernandez]”—and giving the
receiver the authority to “manage, control, and dispose of the property as he
sees fit in his sole discretion” and (2) an agreed order memorializing the parties’
rule 11 agreement, suspending the ordered receivership, and authorizing agreed,
lump-sum payments into the court’s registry. In the agreed order, the trial court
ordered Hernandez to perfect a security interest in favor of Rooker in the
Calmont and Westhaven properties. Further, the trial court restrained Hernandez
from “otherwise encumbering” the Calmont and Westhaven properties “if such
encumberment would affect [Rooker’s] ability to exercise her security interest.”
The agreed order provided that if Hernandez failed to comply, Rooker could
enforce the receivership order and would be entitled to recover her reasonable
attorney’s fees, court costs, and other expenses incurred in the course of
enforcing the receivership order. No party attempted to appeal from these
orders.
On September 26, 2013, Hernandez filed a petition to modify, requesting a
temporary order reducing his child-support payments and ordering Rooker to pay
child support. The trial court denied these requests.
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C. ENFORCEMENT OF RECEIVERSHIP AND FIRST CONTEMPT ORDER
On November 13, 2014, Rooker filed a first amended motion to reinstate
and enforce the receivership and alleged that Hernandez was violating the
agreed order by failing to make the agreed payments into the court’s registry; by
encumbering and transferring the Sandy and Calmont properties to M. Diaz
Investments, LLC (MDI); by encumbering and transferring the Burleson property
to his wife; and by encumbering the Westhaven property. Accordingly, Rooker
requested that “the transfers of the [Sandy, Calmont, and Burleson] properties”
be “overturn[ed]” and that Hernandez be held in contempt. Hernandez
responded to the motion and argued that enforcement of the lump-sum payments
would be “illegal” and that the agreed order was entered without his knowing
consent based on his limited command of the English language.
On December 16, 2014, the trial court held a hearing on Rooker’s motion
for enforcement, found Hernandez in contempt, and signed an order of
commitment without signing a judgment of contempt. Accordingly, this court
granted Hernandez habeas corpus relief on January 22, 2015, and vacated the
commitment order.4 See In re Hernandez, No. 02-14-00396-CV, 2015 WL
4
As requested by Hernandez, we have taken judicial notice of this court’s
record from his writ of habeas corpus. See Tex. R. Evid. 201. We note that
Hernandez did not request that the court reporter prepare a reporter’s record
from the hearing leading to the 2014 contempt order, either in the underlying
habeas corpus proceeding or in this appeal. See Tex. R. App. P. 31.1,
34.6(b)(1).
5
294094, at *1 (Tex. App.—Fort Worth Jan. 22, 2015, orig. proceeding) (mem.
op.); see also Tex. R. App. P. 31.
D. SECOND CONTEMPT ORDER AND REINSTATEMENT OF RECEIVER
On January 27, 2015, Rooker filed a motion asking the trial court to sign a
second order holding Hernandez in contempt. On March 24, 2015, Hernandez
filed a motion to vacate the December 2012 rule 11 agreement and to release
the Calmont, Sandy, and Burleson properties from receivership because he had
“no outstanding child support arrearages.”
On April 2, 2015, the trial court held a hearing on Rooker’s motion to sign
and on Hernandez’s motion to release and vacate. Nellie Perez testified at the
hearing that she “help[s] investors with their evictions” and that she regularly
does so for MDI. Perez stated that when MDI pays her, Hernandez’s wife signs
the checks. At the hearing, Hernandez offered and the trial court admitted into
evidence two warranty deeds showing that he had conveyed title to the
Westhaven and Calmont properties to MDI in exchange for $20 consideration on
June 11, 2014, eleven months after the trial court entered the agreed order
requiring Hernandez to perfect a security interest in favor of Rooker in those
properties. At the conclusion of the hearing, the trial court orally denied
Hernandez’s motion to release the three properties from receivership. The trial
court then signed an order that (1) found that Hernandez had violated the July 2,
2013 agreed order in many respects, including by transferring title to the Calmont
property and by failing to pay the agreed, lump-sum payments; (2) revoked the
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order suspending the receivership; (3) ordered the receiver to perform the duties
provided in the July 2, 2013 order; and (4) taxed Rooker’s attorney’s fees,
expenses, and costs in the amount of $4,000 against Hernandez.5
E. POST-HEARING PROCEDURE
On April 14, 2015, Hernandez filed a request for findings of fact and
conclusions of law regarding the trial court’s April 2, 2015 “judgment.” See Tex.
R. Civ. P. 296. He filed a second request and a notice of appeal on April 22,
2015 from the trial court’s April 2, 2015 order. On April 29, 2015, the trial court
signed an order denying Hernandez’s motion to release his property and to
vacate the rule 11 agreement. Hernandez filed notices of past due findings and
conclusions on May 13, 2015. See Tex. R. Civ. P. 297. The trial court signed
findings and conclusions on December 22, 2015.
On appeal, Hernandez attacks the trial court’s April 2, 2015 order enforcing
the receivership in six issues, which may be distilled into two general arguments:
(1) the trial court did not have jurisdiction over the properties ordered into
receivership and (2) receivership was not an appropriate remedy. He also
argues that the contempt order violated due process, that the trial court erred by
failing to enter findings and conclusions upon request, and that the evidence did
not support the attorney-fee award.
5
The trial court recognized our prior disposition on habeas corpus and
stated that Hernandez “has fulfilled the punishment ordered by the Court.” The
trial court’s order was substantially similar to the order Rooker moved the court to
sign in her January 27, 2015 motion.
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II. ESTABLISHMENT OF RECEIVERSHIP IN 2013
In her brief, Rooker argues that this court does not have jurisdiction over
this appeal because Hernandez’s complaints challenge the July 2, 2013 order
appointing the receiver, which was merely reinstated on April 2, 2015. Therefore,
Rooker contends that Hernandez’s April 22, 2015 notice of appeal was untimely
and did not confer appellate jurisdiction to review the appointment of the receiver.
See Tex. R. App. P. 26.1. Hernandez has not squarely addressed Rooker’s
jurisdictional argument.
At the outset of this appeal, we expressed to the parties our concern that
we did not have jurisdiction over Hernandez’s appeal because we believed that
the contempt order Hernandez challenged was not final or otherwise appealable.
Hernandez responded and we continued the appeal at that time, but we again
must examine our jurisdiction based on Rooker’s argument that Hernandez’s
notice of appeal was untimely.
As we explained above, Hernandez argues in six of his issues that the trial
court did not have the power to order the rental properties into receivership and
that receivership was not an available remedy. These claims relate solely to the
trial court’s ultimate authority to enter the 2013 orders establishing the
receivership and conferring powers and duties on the appointed receiver.
Indeed, in its April 2, 2015 order revoking the suspension of the 2013
receivership, the trial court merely stated that the previously appointed receiver
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“shall perform the duties set out under the receivership previously ordered by this
Court in the Order Appointing Receiver signed by this court on July 2, 2013.”
The trial court appointed the receiver in 2013. Although the trial court
suspended the receivership on July 2, 2013 in an agreed order, the trial court
suspended, but did not vacate, the established receivership based on the parties’
rule 11 agreement filed on December 4, 2012 and signed by Hernandez, which
relied on and recognized that Rooker could seek to enforce the court’s order
through liquidation by a receiver if Hernandez failed to comply with the terms of
the order, including granting Rooker a security interest in the Calmont and
Westhaven properties. Accordingly, Hernandez’s complaints regarding the trial
court’s authority to initially establish the receivership, appoint the receiver, and
authorize him to manage or sell the properties arose at the time the receivership
was established in 2013. See Gibson v. Cuellar, 440 S.W.3d 150, 155–56 (Tex.
App.—Houston [14th Dist.] 2013, no pet.); Fortenberry v. Cavanaugh, No. 03-07-
00310-CV, 2008 WL 4997568, at *21–24 (Tex. App.—Austin Nov. 26, 2008, pet.
denied) (mem. op.). The ordered receivership was never vacated, but was
merely suspended pending Hernandez’s compliance with the rule 11 agreement.
Thus, Hernandez’s complaints that the receivership should never have been
established in the first place were untimely because he raised them for the first
time approximately two years after the receivership was established by the trial
court and after Rooker agreed to a suspension of the enforcement of the
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receivership’s terms in reliance on her ability to later enforce it.6
See Fortenberry, 2008 WL 4997568, at *21–24; Sclafani v. Sclafani, 870 S.W.2d
608, 610–13 (Tex. App.—Houston [1st Dist.] 1993, writ denied). We dismiss
Hernandez’s issues two, three, four, five, six, and nine because Hernandez’s
2015 notice of appeal does not vest this court with jurisdiction to review the
establishment of the receivership in 2013.
III. CONTEMPT ORDER IN 2015
In his first issue, Hernandez argues that the April 2, 2015 order holding him
in contempt was void because he did not receive notice that he could be held in
contempt as required by due process. In his eighth issue, he asserts that the
evidence did not support the award of attorney’s fees to Rooker. His seventh
issue attacks the failure of the trial court to enter findings and conclusions upon
request regarding the contempt order. These issues attack portions of the 2015
order that were independent of the prior establishment of the receivership.
A. DUE PROCESS
Hernandez asserts that because we vacated the commitment order on
habeas corpus, the trial court violated due process by entering a subsequent
commitment order and contempt judgment without a renewed motion for
6
Additionally, because the April 2, 2015 order did not appoint a receiver or
initially establish a receivership, section 51.014(a)(1) would not apply to confer
appellate jurisdiction on Hernandez’s attempted accelerated appeal from the trial
court’s April 2, 2015 order. See, e.g., Wells Fargo Bank, N.A. v. JRK Villages at
Meyerland, LLC, No. 01-10-01076-CV, 2011 WL 61170, at *1 (Tex. App.—
Houston [1st Dist.] Jan. 6, 2011, no pet.) (mem. op.).
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enforcement or a hearing on that motion. He additionally contends that the
April 2, 2015 commitment order was too remote in time from the December 16,
2014 hearing on Rooker’s motion for enforcement to satisfy due process.
First, the trial court did not sign a commitment order in connection with the
2015 order revoking the suspension of the receivership and finding Hernandez in
contempt of the 2013 agreed order. The trial court addressed Hernandez’s
concern that the factual recounting of its prior commitment order in the proposed
order would support the entry of a later commitment judgment by including a
handwritten notation: “IT is Therefore Ordered that [Hernandez] has fulfilled the
punishment [previously] ordered by the Court.” Once this change was made,
Hernandez had no further objection to the alleged commitment language.
Second, a hearing was indeed held on Rooker’s motion to sign and on
Hernandez’s motion to release the properties from receivership and vacate the
parties’ rule 11 agreement. The contempt issue was raised at this hearing and
Hernandez specifically requested the trial court to take judicial notice of “the
previous proceedings and dealings in this matter” in ruling on the motions, which
would include any evidence relating to Hernandez’s contempt of the 2013 agreed
order.
By failing to further object to the form of the April 2, 2015 order, although
given the opportunity to do so, he has waived his due-process arguments
directed to the possible commitment language or the timing of the order. Cf. In re
L.M.I., 119 S.W.3d 707, 710–11 (Tex. 2003) (in termination appeal, concluding
11
argument that termination violated parent’s right to due process was waived
when not raised to the trial court), cert. denied, 541 U.S. 1043 (2004).
Additionally, the cases cited by Hernandez in his brief to support his due-process
argument are wholly distinguishable because they are cases arising from a
commitment order, which did not occur here. See Ex parte Anderson,
900 S.W.2d 333, 334–35 (Tex. 1995) (orig. proceeding); Ex parte Delcourt,
888 S.W.2d 811, 812 (Tex. 1994) (orig. proceeding) (op. on reh’g); In re Spates,
No. 14-14-00603-CV, 2014 WL 4262197, at *4 (Tex. App.—Houston [14th Dist.]
Aug. 28, 2014, orig. proceeding) (mem. op.). Even if the April 2, 2015 order
could be construed to be a contempt order reviewable for violations of due
process, we would not have appellate jurisdiction over Hernandez’s complaints
directed to that portion of the order. See In re Office of Attorney Gen. of Tex.,
215 S.W.3d 913, 915 (Tex. App.—Fort Worth 2007, orig. proceeding); cf. In re
E.H.G., No. 04-08-00579-CV, 2009 WL 1406246, at *5 (Tex. App.—San Antonio
May 20, 2009, no pet.) (mem. op.) (“If a motion to enforce includes a request for
both a contempt finding and a money judgment for child support arrearage, an
appellate court has jurisdiction to address the arrearage judgment because it is
unrelated to the contempt order.”). We overrule issue one.
B. ATTORNEY’S FEES
In his eighth issue, Hernandez argues that there was no evidence that the
awarded attorney’s fees were reasonable and necessary. He relies on the fact
that Rooker failed to plead for attorney’s fees in her motion to sign. Rooker
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points out on appeal that she pleaded for her attorney’s fees in her motion to
enforce, which led to the 2014 contempt order, and argues that an award of
attorney’s fees is mandatory in an enforcement action. See Tex. Fam. Code
Ann. § 157.167 (West 2014); cf. E.H.G., 2009 WL 1406246, at *5 (recognizing
appellate court has jurisdiction over challenges to portions of judgment that are
independent of contempt order).
At the hearing on Rooker’s motion to sign, Rooker’s attorney attempted to
testify regarding the time she spent seeking the entry of a second contempt
order. Hernandez objected to this testimony based on Rooker’s failure to plead
for attorney’s fees in her motion to sign, which the trial court sustained. Even
though an award of attorney’s fees is mandated by section 157.167, Rooker had
the burden to plead for and produce evidence of the requested amount of
attorney’s fees. See In re A.L.S., 338 S.W.3d 59, 69–70 (Tex. App.—Houston
[14th Dist.] 2011, pet. denied). This she did not do. The fact that Rooker
pleaded for attorney’s fees in her 2014 motion to enforce does not satisfy her
burden of pleading or proof regarding the attorney’s fees she incurred regarding
the 2015 motion to sign. We sustain issue eight.
C. FINDINGS AND CONCLUSIONS
In his seventh issue, Hernandez argues that the trial court erred by failing
to enter findings and conclusions regarding its April 2, 2015 order even though
he timely requested them. See Tex. R. Civ. P. 296–97. The record reflects that
the trial court did enter findings and conclusions on December 22, 2015—more
13
than forty days after Hernandez’s May 13, 2015 notice of past-due findings.
See Tex. R. Civ. P. 297. In the absence of requested findings and conclusions,
we presume harm unless the record affirmatively shows that Hernandez was not
harmed by their absence. See Watts v. Oliver, 396 S.W.3d 124, 130 (Tex.
App.—Houston [14th Dist.] 2013, no pet.). Here, the record affirmatively shows
that Hernandez was not harmed by the absence of timely findings and
conclusions. See Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996). The April 2,
2015 order itself contains multiple factual findings and legal conclusions, and
there is no indication that Hernandez was prevented from presenting a complete
appellate argument as a result of the absence of timely findings and conclusions.
See Robles v. Robles, 965 S.W.2d 605, 611 (Tex. App.—Houston [1st Dist.]
1998, pet. denied) (op. on reh’g). Additionally, the trial court’s action in filing
findings and conclusions, even though outside the forty-day deadline, remedied
any harm arising from their untimeliness. See Kramer v. Weir SPM, No. 02-13-
00093-CV, 2014 WL 3953928, at *2 (Tex. App.—Fort Worth Aug. 14, 2014, pet.
denied) (mem. op.). We overrule issue seven.
IV. CONCLUSION
Because Hernandez attempts to attack the establishment of the
receivership in 2013 in issues two, three, four, five, six, and nine, we dismiss
those issues for want of jurisdiction. We also overrule issues one and seven.
But because Rooker did not plead for and offered no evidence in support of a
request for attorney’s fees regarding the motion to sign, we sustain issue eight.
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Therefore, we modify the trial court’s April 2, 2015 order to delete the award of
attorney’s fees, and affirm it as modified. See Tex. R. App. P. 43.2(b).
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: GARDNER, GABRIEL, and SUDDERTH, JJ.
DELIVERED: July 28, 2016
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