Dream Creek Enterprises, Inc. and Ramey J. Keith v. BBL Builders, L.P. ( 2015 )

ACCEPTED
05-15-00768-CV
FIFTH COURT OF APPEALS
DALLAS, TEXAS
8/3/2015 3:25:42 PM
LISA MATZ
CLERK
ORAL ARGUMENT REQUESTED
No. 05-15-00768-CV FILED IN
5th COURT OF APPEALS
DALLAS, TEXAS
_______________________________________________
8/3/2015 3:25:42 PM
In The COURT OF APPEALS LISA MATZ
Clerk
FIFTH DISTRICT OF TEXAS AT DALLAS
______________________________________________
DREAM CREEK ENTERPRISES, INC. and
RAMEY J. KEETH,
Appellants,
vs.
BBL BUILDERS, L.P.,
Appellee.
______________________________________________
Appeal from the 68th Judicial District Court
of Dallas County, Texas, Cause No. DC-14-13721
Honorable Martin Hoffman, Presiding Judge
______________________________________________
APPELLANTS’ OPENING BRIEF
______________________________________________
Daniel L. Bates
State Bar No. 01899900
dbates@deckerjones.com
Frank M. Newman, Jr.
State Bar No. 14970500
fnewman@deckerjones.com
Jake L. Ramsey
State Bar No. 24083705
jramsey@deckerjones.com
Molly Johnson
State Bar No. 24092590
mjohnson@deckerjones.com
DECKER JONES, P.C.
801 Cherry St., Mail Unit #46
Fort Worth, Texas 76102-6836
817-336-2400 (Telephone)
817-336-2181 (Facsimile)
ATTORNEYS FOR APPELLANTS
IDENTITY OF PARTIES AND COUNSEL
Pursuant to TEXAS RULES OF APPELLATE PROCEDURE 38.1(a), the following
is a complete list of all parties to the trial court’s judgment and the names and
addresses of all counsel:
Appellants: Dream Creek Enterprises, Trial and Appellate Counsel:
Inc. (hereinafter referred to
as “Dream Creek”) Daniel L. Bates
dbates@deckerjones.com
Ramey J. Keeth, individually Frank M. Newman, Jr.
(hereinafter referred to as fnewman@deckerjones.com
“Keeth”) Jake L. Ramsey
jramsey@deckerjones.com
Molly Johnson
mjohnson@deckerjones.com
DECKER JONES, P.C.
2000 Burnett Plaza
801 Cherry Street
Mail Unit #46
Fort Worth, Texas 76102
817-336-2400 (Telephone)
817-336-2181 (Facsimile)
Appellee: BBL BUILDERS, L.P. Trial and Appellate Counsel:
(hereinafter referred to as
“BBL”) Steven H. Thomas
sthomas@mcslaw.com
Jennifer M. Larson
jlarson@mcslaw.com
McGUIRE, CRADDOCK &
STROTHER, P.C.
2501 N. Harwood
Suite 1800
Dallas, Texas 75201
214-954-6800 (Telephone)
i
214-954-6868 (Facsimile)
Receiver: Albert “Tre” Black III Counsel for Receiver:
Kevin Buchanan, Esq.
kbuchanan@kevinbuchananlaw.com
Matthew McDougal, Esq.
mmcdougal@kevinbuchananlaw.com
KEVIN BUCHANAN &
ASSOCIATES, P.L.L.C.
900 Jackson Street, Suite 350
Dallas, TX 75202
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL.......................................................... i
TABLE OF CONTENTS ....................................................................................... iii
INDEX OF AUTHORITIES ................................................................................. vi
STATEMENT REGARDING ORAL ARGUMENT .......................................... xi
STATEMENT OF THE CASE ............................................................................ xii
STATEMENT OF JURISDICTION .................................................................. xiv
ISSUES PRESENTED ...........................................................................................xv
STATEMENT OF FACTS ......................................................................................1
SUMMARY OF THE ARGUMENT ......................................................................9
STANDARD OF REVIEW ...................................................................................10
ARGUMENT ..........................................................................................................11
I. The Trial Court Lacked Authority To Appoint A Receiver .............. 11
A. The Court Lacked Authority to Appoint a Receiver
Because the Parties Had Selected the Arbitral Forum ...................... 12
(1) Arbitral Forum Selection Severely Limits A Trial Court’s
Authority.......................................................................................... 13
B. Law Of The Arbitral Forum Does Not Authorize A Judicial
Receivership ............................................................................................ 17
(1) Receivership Was Not An Agreed Arbitration Remedy ............. 17
(2) No Contractual Agreement For A Judicial Receivership
Exists ................................................................................................ 17
(3) The AAA Rules Do Not Provide For A Judicial
Receivership .................................................................................... 18
C. Law Supporting Arbitration Does Not Authorize Judicial
Receivership ............................................................................................ 20
(1) The FAA Does Not Authorize A Judicial Receivership ............... 21
(2) The TAA Does Not Authorize Judicial Receiverships
Because A Receivership Is Not Among Orders
Authorized by § 171.086 ................................................................. 26
iii
D. Neither Remedies Code Chapter 64 Nor Business
Organizations Code Chapter 11 Authorize A
Judicial Receivership.............................................................................. 32
(1) The Trial Court Is Not A Court Of Competent
Jurisdiction Under Texas Civil Practice & Remedies
Code § 64.001(a) ............................................................................ 32
(2) The Trial Court Lacked Jurisdiction Under Texas Business
Organizations Code § 11.404 ......................................................... 34
E. BBL Does Not Have Standing To Bring A Trust Fund
Act Claim ................................................................................................. 38
(1) A Texas Construction Trust Fund Act Claim May Only Be
Asserted By Downstream Subcontractors, Not Upstream
Payors ............................................................................................... 38
(2) Lack Of Standing Results In Trial Court Lacking
Authority To Appoint A Receiver. ................................................ 43
F. Probable Conflict, Interference, And Uncertainty Between
Arbitration And Judicial Receivership Weighs Against
Authorizing Imposition .......................................................................... 44
II. The Trial Court Abused Its Discretion In Appointing A Receiver. .........46
A. BBL failed to establish that Dream Creek was in litigation and
that the action in litigation was an action by an owner or a
member of the domestic entity as required by § 11.404(a)(1) of
the Tex. Bus. Org. Code ......................................................................... 47
(1) BBL’s Damages Suit Is Not An Action By A Domestic Entity
Owner Required By § 11.404(a)(1) Of The Tex. Bus. Org. Code ...... 47
(2) BBL Is A Claimant, Not A Creditor, Of Dream Creek Or
Keeth ........................................................................................................ 49
B. The Judicial Receivership Was Not Imposed To Prevent
Arbitration Disorder, Interference, Or Delay ..................................... 52
C. Dallas County Is An Improper Venue To Order A
Receivership Over Dream Creek .......................................................... 55
D. BBL Has No Joint Ownership Or Interest In The Property Or
Fund ......................................................................................................... 55
E. BBL Failed To Prove Insolvency, Dissolution, Or Forfeiture ............ 56
iv
(1) There Is No Evidence of Dissolution, Forfeiture, Insolvency, Or
Imminent Insolvency Of Dream Creek ................................................ 57
(2) Even If Competent Evidence Exists, Case Law Opposes A
Judicial Receivership On These Facts. ................................................. 58
F. Equity Cannot Support Receivership Absent Fulfilling
Statutory Requirements ......................................................................... 59
CONCLUSION.......................................................................................................60
PRAYER .................................................................................................................61
CERTIFICATE OF COMPLIANCE ..................................................................63
CERTIFICATE OF SERVICE ............................................................................64
APPENDIX IN SUPPORT OF APPELLANTS OPENING BRIEF ................65
v
INDEX OF AUTHORITIES
Cases
A&J Printing, Inc. v. DSP Enters., L.L.C.,
153 S.W.3d 676, 680 (Tex. App.—Dallas 2004, no pet.) ....................................11
Amegy Bank N.A. v. Monarch Flight II, LLC,
870 F. Supp. 2d 441, 452 (S.D. Tex. 2012) ..........................................................18
Austin Commer. Contrs., L.P. v. Carter & Burgess, Inc.,
347 S.W.3d 897 (Tex. App.—Dallas 2011, pet denied) ...................................... xii
Benefield v. State,
266 S.W.3d 25, 31 (Tex. App.—Houston [1st Dist.] 2008, no pet.) ....................13
BMC Software Belg., N.V. v. Marchand,
83 S.W.3d 789, 794 (Tex. 2002)...........................................................................10
Bocquet v. Herring,
972 S.W.2d 19, 21 (Tex. 1998) .............................................................................11
CNOOC Southeast Asia Ltd. v. Paladin Res. (Sunda) Ltd.,
222 S.W.3d 889, 894(Tex. App.—Dallas 2007, pet. denied) ...............................11
Comed Medical Systems, Co., Ltd. v. AADCO Imaging, LLC,
2015 Tex. App. LEXIS 1762 (Tex. App.—Austin 2015)
(unpublished opinion) ...........................................................................................14
Continental Homes Co. v. Hilltown Property Owners Ass'n, Inc.,
529 S.W.2d 293 (Tex. Civ. App. Fort Worth 1975) .............................................59
Farrel Constr., Inc. v. Schreiber,
466 B.R. 903, 912 (S.D. Tex. Bankr. 2012) .................................................. 39, 42
Finance Comm’n v. Norwood,
418 S.W.3d 566, 580 (Tex. 2013) .........................................................................43
Forest Oil Corp. v. McAllen,
268 S.W.3d 51, 56 (Tex. 2008) .............................................................................14
vi
Gossett v. Hamilton,
133 S.W.2d 297, 302 (Tex. Civ. App.—Fort Worth 1939) ..................................58
Greenland v. Pryor,
360 S.W.2d 423 (Tex. Civ. App. San Antonio 1962) ...........................................58
Griggs v. Brewster,
62 S.W.2d 980 (1933) ...........................................................................................58
Gulf Guar. Life Ins. Co. v. Conn. Gen. Life Ins. Co.,
304 F.3d 476, 487 (5th Cir. 2002) ........................................................... 23, 26, 29
Haynsworth v. The Corp.,
121 F.3d 956, 963 (5th Cir. 1997) ........................................................................16
Heckman v. Williamson Cty.,
369 S.W.3d 137, 150 (Tex. 2012) .........................................................................43
Hines v. Villalba,
231 S.W.3d 550, 552 (Tex. App.—Dallas 2007) .................................................36
Holladay v. CW & A, Inc.,
60 S.W.3d 243, 245-46 (Tex. App.—Corpus Christi 2011, pet. denied) .............38
Howsam v. Dean Witter Reynolds,
537 U.S. 79, 85-86 ................................................................................................19
Hunt v. Merchandise Mart, Inc.,
391 S.W.2d 141 (Tex. Civ. App. —Dallas 1965), writ refused n.r.e. ..................58
In re AIU Ins.,
148 S.W.3d 109, 114, 121 (Tex. 2004).................................................................15
In re Automated Techs., Inc.,
156 S.W.3d 557, 559 (Tex. 2004).........................................................................15
In re Brown,
441 S.W.3d 405, 407 (Tex. App.—Dallas 2013, no pet.) ....................................16
vii
In re D. Wilson Constr. Co.,
196 S.W.3d 774, 778-79 (Tex. 2006) ...................................................................27
In re FC Stone, LLC,
348 S.W.3d 548, 551 (Tex. App.—Dallas 2011, no pet.) ....................................16
In re Houston Pipe Line Co.,
311 S.W.3d 449, 450 (Tex. 2009) .................................................................. 14, 31
In re L&L Kempwood Assocs., L.P.,
9 S.W.3d 125, 127 (Tex. 1999)...................................................................... 22, 27
In re Nexion Health at Humble, Inc.,
173 S.W.3d 67, 69 (Tex. 2005) .............................................................................22
Jack B. Anglin, Co. v. Tipps,
842 S.W.2d 266, 269-70 (Tex. 1992) ...................................................................22
Jackson v. Van Winkle,
660 S.W.2d 807, 810 (Tex. 1983) .........................................................................57
Kelleam v. Md. Cas. Co.,
312 U.S. 377, 381 (1941) ............................................................................... 24, 25
Kneisley v. Intertex, Inc.,
797 S.W.2d 343 (Tex. App.—Houston [14th Dist.] 1990, no writ) ......................56
Lively v. Carpet Servs., Inc.,
904 S.W.2d 868, 873 (Tex. App.—Houston [1st Dist.] 1995, writ denied ..........39
McCraw v. Maris,
828 S.W.2d 756, 757 (Tex. 1992).........................................................................57
Moses H. Cone Hospital v. Mercury Construction Corp.,
460 U.S. 1, 22 (1983) ............................................................................................14
Mueller v. Beamalloy, Inc.,
994 S.W.2d 855, 861 (Tex. App.—Houston [1st Dist.] 1999, no pet.) .................59
Nexen, Inc. v. Gulf Interstate Eng'g Co.,
viii
224 S.W.3d 412, 417 (Tex. App.--Houston [1st Dist.] 2006, no pet.) .................31
Robax Corp. v. Prof’l Parks, Inc.,
2008 U.S. Dist. LEXIS 60626, 2008 WL 3244150 (N.D. Tex. 2008) .......... 40, 41
Scherk v. Alberto-Culver Co.,
417 U.S. 506, 519 (1974) ............................................................................... 15, 17
Senter Invs., L.L.C. v. Amirali & Asmita Veerjee & Al-Waahid, Inc.,
358 S.W.3d 841, 844-45 (Tex. App.—Dallas 2012) ............................................14
Smith Barney Shearson, Inc. v. Boone,
47 F.3d 750, 753-54 (5th Cir. 1995) .....................................................................17
Spiritas v. Davidoff,
459 S.W.3d 224, 231 (Tex. App.—Dallas 2015, no pet) .....................................11
Transwestern Pipeline Co. v. Blackburn,
831 S.W.2d 72, 78 (Tex. App.—Amarillo 1992, orig. proceeding) .....................14
Tucker v. Baker,
214 F2d. 627, 632 (5th Cir. 1954) ........................................................................25
Wells Fargo Bank, N.A. v. Star Tex. Gasoline & Oil Distribs.,
2015 U.S. Dist. LEXIS 10673 (S.D. Tex. 2015) ........................................... 23, 24
West Orange-Cove Consol. ISD v. Alanis,
107 S.W.3d 558, 583 (Tex. 2003) .........................................................................43
Statutes
FAA, 9 U.S.C. § 16 ..................................................................................... xii, 17, 26
Tex. Bus. Org. Code § 11.402 ......................................................................... passim
Tex. Bus. Org. Code § 11.403 ......................................................................... passim
Tex. Civ. Prac. & Rem. Code § 171.081 (West 2014) ............................................27
Tex. Civ. Prac. & Rem. Code § 171.087 .................................................................21
Tex. Const. Art 5, § 6 ............................................................................................. xiii
Tex. Gov’t Code § 22.221...................................................................................... xiii
Tex. Prop. Code § 162.001 et seq. (West 2013) ......................................................38
Tex. R. App. P. 81(b) ...............................................................................................57
Tex. R. Evid. 901 .....................................................................................................58
ix
Texas Business Organizations Code § 11.001(1) ....................................................51
Texas Business Organizations Code Chapter 11 ........................................ 17, 51, 55
Texas Business Organizations Code, Chapter 11 ........................................ xiv, 9, 12
Texas Civil Practice & Remedies Code § 171.001 et seq. ........................... x, 27, 29
Texas Civil Practice & Remedies Code § 171.086 .......................................... passim
Texas Civil Practice & Remedies Code § 51.014(a)(1) .................................. xii, xiii
Texas Civil Practice & Remedies Code § 64.001 ............................................ passim
Texas Civil Practice & Remedies Code, Chapter 64 ................................... xiv, 9, 12
Texas Construction Trust Fund Act .........................................................................17
Texas Rules of Appellate Procedure 38.1(a) ............................................................. i
Other Authorities
AAA Construction Industry Rules ...........................................................................17
American Arbitration Association Areas of Expertise, Construction,
https://www.adr.org/aaa/faces/aoe/cre/construction (last visited July 23, 2015)19
x
STATEMENT REGARDING ORAL ARGUMENT
Appellants, Dream Creek and Keeth, respectfully request oral argument.
This appeal arises from a series of hearings and proceedings resulting in an Order
Appointing Receiver raising important issues regarding the authority of a trial
court to impose a receivership on parties already engaged in arbitration. The
prevalence of the use of the arbitral forum creates questions concerning the
boundaries of the parallel use of the judicial forum to impose the very severe and
harsh remedy of receivership important to litigants in this district and throughout
the State of Texas. The paucity of case authority directly on the issues raised in
this appeal, especially given their significance, convinces Appellants that oral
argument may aid the Court in its decisional process.
xi
STATEMENT OF THE CASE
Nature of This accelerated interlocutory appeal, or alternatively petition
the Case: for writ of mandamus, tests whether a trial court had
jurisdiction and, if so, properly imposed a judicial receivership
over Dream Creek and Keeth, despite the fact that BBL and
Dream Creek had selected the arbitral forum and were already
in a pending binding arbitration.
Arbitration is BBL initiated an AAA arbitration of its claims of breach of
Initiated: contract and related causes of action against Dream Creek and
Ramey Keeth, Dream Creek’s President. Keeth, individually,
was not a signatory and he contested arbitration in his
arbitration answer filed with AAA.
Trial Court Despite the pending arbitration, BBL sued Dream Creek and
Proceedings in Ramey Keeth for damages via Plaintiff’s Original Petition And
101st District Request for Disclosures, assigned to the 101st District Court of
Court: Dallas County, Texas as cause number DC-14-05976. BBL
filed an Emergency Motion for Accounting, Appointment Of
A Receiver, And Expedited Discovery On The Status of Trust
Funds. Responding to the lawsuit, Dream Creek and Keeth
objected to improper venue; moved to transfer venue to Parker
County, the principal place of business of Dream Creek and
Keeth’s place of residence; and answered with denials and
affirmative defenses. BBL Supplemented its Emergency
Motion. Dream Creek and Keeth responded to BBL’s Motion
for Accounting and Receiver asserting, inter alia, lack of
jurisdiction and improper venue. The 101st District Court
deferred consideration of a receiver but, sua sponte, appointed
an auditor. Thereafter, the 101st District Court, sua sponte,
issued a temporary injunction prohibiting Dream Creek and
Keeth from using bank accounts without court order approving
same and denied a receiver, without prejudice to
reconsideration. The 101st District Court thereafter transferred
this case to the 415th District Court of Parker County.
Proceedings in BBL moved to compel Keeth, a non-signatory, to join the
the 415th District pending arbitration. The 415th District Court compelled Keeth
Court: to arbitrate; increased the amount of the bond on the temporary
xii
injunction; and retained the temporary injunction and
jurisdiction of the Court under Subchapter D of Chapter 171 of
the Texas Civil Practice & Remedies Code for support of the
pending arbitration. Thereafter, based on venue in Dallas
County for the pending arbitration, per the arbitration
agreements, this case was transferred back to Dallas County.
Proceedings in Upon return, this case was assigned to the 68th District Court
the 68th District and given cause number DC-14-13721. BBL renewed its
Court: request for appointment of a receiver and, in addition, sought
to hold Ramey Keeth in contempt for violation of the
temporary injunction. BBL made a motion to set pending
motions for hearing which the court docketed for May 29,
2015.
68th Trial Court After the hearing on May 29, 2015, the 68th District Court
Disposition: appointed a receiver over Dream Creek, including vesting in
the Receiver possession of a portion of a personal bank
account of Keeth. The Order Appointing Receiver was signed
on June 1, 2015, a true and correct copy of which is attached
hereto as Exhibit “A.” Dream Creek and Keeth timely filed
their notice of appeal of this Order on June 19, 2015.
xiii
STATEMENT OF JURISDICTION
The Order Appointing Receiver, the subject of this appeal, was made
expressly pursuant to three statutes: (1) Texas Civil Practice & Remedies Code §
64.001(a), (3), (5), and (6); (2) Texas Business & Commerce Code §
11.404(a)(1)(A), (C), and (D); and (3) Texas Civil Practice & Remedies Code §
171.086. (CR p. 255) Accordingly, this Court of Appeals has jurisdiction over this
interlocutory appeal pursuant to Texas Civil Practice & Remedies Code §
51.014(a)(1). Because this appeal challenges the jurisdiction of the trial court, this
Court of Appeals always has jurisdiction to determine whether the trial court had
jurisdiction.
At the time the trial court appointed the receiver, all the parties were in a
pending binding arbitration pursuant selection of the arbitral forum by BBL and
Dream Creek. Because interstate commerce is involved, the Federal Arbitration
Act (“FAA”) applies. Reviewing courts, including this Court, have held
interlocutory appeals of orders made by the trial court under the FAA, 9 U.S.C. §
16, are more restrictive than those brought applying only Texas law. See Austin
Commer. Contrs., L.P. v. Carter & Burgess, Inc., 347 S.W.3d 897 (Tex. App.—
Dallas 2011, pet denied).
Appointment of a receiver is not listed in § 16 of the FAA, raising the issue
of whether Texas Civil Practice & Remedies Code § 51.014(a)(1), permitting an
xiv
interlocutory appeal from an order appointing a receiver, conflicts with and is
therefore preempted by the FAA. This issue is confounded by the fact that there is
no provision in the FAA for a receiver in the first instance. Thus far, research has
failed to reveal any case authority answering this important jurisdictional question.
In the event this Court may determine that the FAA preempts the application
of Texas Civil Practice & Remedies Code § 51.014(a)(1), with the result that this
Court does not have jurisdiction over this interlocutory appeal, Dream Creek and
Keeth request that this Court exercise its original jurisdiction and consider this
Opening Brief as Dream Creek and Keeth’s request for a Writ of Mandamus to
order the trial court to vacate the Order Appointing Receiver, pursuant to Texas
Constitution Article 5, Section 6 and Texas Government Code § 22.221.
ISSUES PRESENTED
Issue No. 1: Did the trial court have authority to establish a judicial
receivership when:
(a) BBL and Dream Creek had selected the arbitral forum and all parties
were in binding arbitration at the time the judicial receivership was
established;
(b) In connection with selecting arbitration, there was no agreement that
receivership would be an available remedy;
(c) Neither the Federal Arbitration Act nor the Texas General Arbitration
Act authorizes imposition of a judicial receivership over parties in
arbitration;
(d) The trial court was not a court of competent jurisdiction and not
authorized to appoint a receiver under Chapter 64 of the Texas Civil
xv
Practice & Remedies Code or under Chapter 11 of the Texas Business
Organizations Code because of the forum selection for arbitration;
(e) BBL did not have standing to assert the Texas Construction Trust
Fund Act as the ground supporting the judicial receivership; and
(f) The conflict, interference, and uncertainty between the arbitration and
judicial receivership weighs against authorizing imposition of same.
Issue No. 2: Did the trial court abuse its discretion in appointing a receiver
when:
(a) BBL failed to (i) establish that Dream Creek was in litigation and that
the action in litigation was an action by an owner or a member of the
domestic entity as required by § 11.404(a)(1) of the Texas Business
Organizations Code, and (ii) prove it was a creditor of Keeth or had
any justiciable interest in his personal bank account;
(b) BBL failed to plead or prove a receivership was needed to permit the
pending arbitration: (1) to be conducted in an orderly manner; and (2)
to prevent improper interference or improper delay of the arbitration;
(c) Texas Civil Practice & Remedies Code § 64.071 requires that an
action to have a receiver appointed for a corporation with property in
this state be brought in Parker County, the county of the principal
office of Dream Creek;
(d) There is no evidence or insufficient evidence to support the
receivership under Texas Civil Practice & Remedies Code §
64.001(a)(3);
(e) There is no evidence or insufficient evidence to support the
receivership under Texas Civil Practice & Remedies Code §
64.001(a)(5); and
(f) Rules of equity do not permit appointing a receiver if statutory
requirements for such appointment are not fulfilled.
xvi
No. 05-15-00768-CV
_______________________________________________
In The COURT OF APPEALS
FIFTH DISTRICT OF TEXAS AT DALLAS
______________________________________________
DREAM CREEK ENTERPRISES, INC. and
RAMEY J. KEETH,
Appellants,
vs.
BBL BUILDERS, L.P.,
Appellee.
______________________________________________
Appeal from the 68th Judicial District Court
of Dallas County, Texas, Cause No. DC-14-13721
Honorable Martin Hoffman, Presiding Judge
______________________________________________
APPELLANTS’ OPENING BRIEF
______________________________________________
TO THE HONORABLE JUSTICES OF THIS COURT OF APPEALS:
Dream Creek Enterprises, Inc. and Ramey J. Keeth (“Appellants”)
respectfully submit their Brief, and in support would respectfully show the Court as
follows:
STATEMENT OF FACTS
BBL is a contractor headquartered in Latham, New York that entered into a
Subcontract Agreement with a framing subcontractor, Dream Creek, a Texas
corporation headquartered in Springtown, Parker County, Texas, for each of four
1
construction projects. (CR pp. 17-179) Each Subcontractor Agreement was
executed by Dream Creek through its President, Ramey Keeth. (CR pp. 28, 58,
109, 140) In each Subcontractor Agreement, Dream Creek contracted to provide
wood framing for four construction projects: (1) Airline Ocean Drive in Corpus
Christi, Texas (“Airline”) (CR pp. 17, 19); (2) Bay Vista Apartments Phase II in
Corpus Christi, Texas (“Bay Vista”) (CR pp. 17, 50); (3) Mosaic Apartments, a
LEVEL Community in Oklahoma City, Oklahoma (“Mosaic”) (CR pp. 17, 100);
and (4) Tradewinds Apartments at Gateway Plaza in Midland, Texas
(“Tradewinds”). (CR pp. 17, 131)
Each Subcontractor Agreement between BBL and Dream Creek has the
identical arbitration agreement, in pertinent part, as follows:
“12.1 Any controversy or claim between Contractor and
Subcontractor arising out of or related to this AGREEMENT, or the breach
thereof, shall be settled by arbitration, which shall be conducted in the same
manner and under the same procedure as provided in the Contract
Documents with respect to claims between Owner and Contractor except
that a decision by the Initial Decision Maker or Architect shall not be a
condition precedent to arbitration. If the Contract between Owner and
Contractor does not provide for arbitration or fails to specify the manner and
procedure for arbitration, it shall be conducted in accordance with
Construction Industry Rules of the American Arbitration Association
currently in effect unless the parties mutually agree otherwise.
12.2 The venue for any arbitration proceedings shall be the County
of Dallas, State of Texas.”
(CR pp. 27, 57, 108-9, 139-40)
2
Except for the Mosaic Subcontractor Agreement, choosing Oklahoma law,
each Subcontractor Agreement provides that: “Texas law shall govern and apply to
interpretations of this Agreement.” (CR pp. 26, 56, 108, 138)
After disputes arose between BBL and Dream Creek, arbitration was
initiated by BBL with the American Arbitration Association (“AAA”) on May 5,
2014. (CR p. 9) BBL initiated arbitration not only with Dream Creek, a signatory
to each Subcontractor Agreement, but BBL also named Keeth, despite the fact that,
individually, he was not a signatory to any Subcontractor Agreement. (CR pp. 28,
58, 109, 140)
On June 3, 2014, BBL filed this damage suit against Dream Creek and Keeth
in Dallas County, assigned to the 101st District Court as cause number DC-14-
05976. (CR pp. 306-492) BBL pleaded that it had initiated arbitration with Dream
Creek and Keeth; that in Defendants’ arbitration answer, Keeth denied he was
obligated to arbitrate; and that BBL does not want to arbitrate “either.” (CR pp.
307-08) BBL then pleaded its conclusion that “the parties appear to be in
agreement that they do not wish to be in arbitration.” (CR p. 308) BBL advised
that it would ask AAA to place the arbitration in abeyance. Id.
On these facts, BBL pleaded for damages allegedly caused by Dream Creek
and Keeth and stated multiple causes of action. (CR pp. 311-14) BBL did not seek
appointment of a receiver in its original petition, however. (CR pp. 306-16)
3
On June 5, 2014, BBL filed its Emergency Motion for Accounting,
Appointment Of A Receiver, And Expedited Discovery On The Status Of Trust
Funds. (CR pp. 493-500) Therein, BBL requested a receiver on a single ground,
citing repealed Article 7.05 of the Texas Business Corporation Act as authority,
asserting that Dream Creek was insolvent or in imminent danger of insolvency.
(CR p. 495) BBL’s motion did not have any pleading or proof that: (1) any request
for receivership had been made in the arbitration; (2) that the Arbitrator had
appointed a receiver so that the trial court was being requested to enforce the
Arbitrator’s appointment; or (3) that the appointment was being sought to support
the arbitration. Id. The single ground asserted in BBL’s motion was, thus, solely in
connection with its damage suit against Dream Creek and Keeth. Id.
By a letter dated June 5, 2014, BBL’s counsel advised AAA of the filing of
this suit and requested the arbitration be held in abeyance. (CR pp. 182-83) There
is no evidence in the Record on Appeal that AAA took any action on BBL’s
abeyance request.
On June 18, 2014, Dream Creek and Keeth filed their Defendants’ Motion to
Transfer Venue and Original Answer in which they generally denied the
allegations BBL made in its original petition, which would include BBL’s
assertions about the pending arbitration. (CR pp. 612-16) They also filed a
Response to Emergency Motion for Accounting, Appointment Of A Receiver, And
4
Expedited Discovery On The Status Of Trust Funds. (CR pp. 617-22) Dream
Creek and Keeth’s response, inter alia, made a Plea to the Jurisdiction based on the
fact that only a court in the county in which the principal place of business of a
domestic corporation is located is authorized to impose a judicial receivership
pursuant to Texas Business Organizations Code § 11.404. (CR p. 617). Dream
Creek and Keeth also made objections to various portions of the Declaration of
Chad Courty, as well as to many of the exhibits, the principal support for BBL’s
request for appointment of a receiver. (CR pp. 618-19)
Later on June 18, 2014, BBL filed a Supplement To Emergency Motion For
Accounting, Appointment Of A Receiver, And Expedited Discovery On The Status
Of Trust Funds. (CR pp. 501-611) Therein, BBL asserted that in the arbitration a
preliminary conference with the Arbitration Administrator included a discussion of
the need for information BBL was seeking. (CR p. 501) However, no additional
ground of authority supporting BBL’s request for receiver was included in BBL’s
supplement. (CR pp. 501-611)
The 101st District Court heard BBL’s motion for receiver on June 18, 2014
and, by order signed on June 20, 2014, deferred the issue of whether a receiver
should be appointed; sua sponte appointed an auditor; ordered production of
documents; and set July 9, 2014 as the date for the auditor’s report. (CR pp. 623-
25) Although the order appointing an auditor has most of the same vices as the
5
Order Appointing Receiver, no interlocutory appeal is permitted from that order.
In neither its motion nor supplement did BBL plead and prove that discovery had
been ordered in the arbitration so that BBL was seeking enforcement of an
arbitration discovery order. (CR pp. 493-500, 501-611) The discovery ordered
concerned merits of the claims in arbitration, rather than validity of the agreement
to arbitrate. Thus, the 101st District Court did not have jurisdiction to order any
such discovery. Regardless, through prior counsel, Appellants agreed via a Rule
11 Agreement to produce documents and information to the court-appointed
auditor. (CR pp. 626-28)
On July 11, 2014, BBL filed Plaintiff’s First Amended Petition, the live
pleading of BBL at the time the 68th District Court appointed the receiver. (CR pp.
629-804) In its amended petition, BBL asserted entitlement to have a receiver
appointed pursuant to § 11.403 of the Texas Business Organizations Code. (CR p.
638-39) BBL pleaded no other ground supporting its request for appointment of a
receiver. The single ground asserted in BBL’s amended petition continued to be
made solely in connection with its damage suit against Dream Creek and Keeth.
(CR pp. 629-804)
Shortly after amending its pleadings, BBL filed a Brief In Support Of
Court’s Authority To Appoint A Receiver in the 101st District Court. (CR pp. 805-
815) In its brief, BBL asserted the trial court had the authority to grant its motion
6
and appoint a receiver pursuant to § 64.001 of the Texas Civil Practice &
Remedies Code and §§ 11.402 and 11.403 of the Texas Business Organizations
Code. (CR pp. 807-08) As with its pleadings, motion, and supplement, BBL’s trial
brief is void of any consideration, briefing, or citation of authority on: (1) the effect
of the choice of the parties for the arbitral forum; (2) their lack of agreement that
receivership is a potential remedy either in arbitration or judicially; and (3) the fact
that the trial court was being asked to establish a receivership in parallel to the
pending arbitration.
On August 12, 2014, the 101st District Court granted Dream Creek and
Keeth’s motion to transfer venue to Parker County. (CR pp.11, 868) After transfer,
BBL moved the 415th District Court to compel Ramey Keeth to join the pending
arbitration. (CR pp.7-183) On September 2, 2014, Keeth, a non-signatory to the
agreements to arbitrate, was compelled to join the pending arbitration for
resolution of BBL’s claims against him, individually. (CR p. 185) Therefore, as of
the time BBL renewed its request for a receiver, and the trial court appointed one,
all parties in this case were and continue to be in the pending arbitration.
On September 10, 2014, BBL moved to transfer this case from Parker
County to Dallas County. (CR pp. 186-90) On September 17, 2014, original trial
counsel for Appellants moved to withdraw and the 415 th District Court granted the
withdrawal motion on September 22, 2014. (CR pp. 191-93) From September 22,
7
2014 through March 6, 2015, when Frank Newman of Decker Jones, P.C. entered
our firm’s appearance, Dream Creek and Keeth were not represented in the trial
court. (CR pp. 195-96) On October 30, 2014, the 415th District Court granted
BBL’s motion to transfer venue and transferred this case back to Dallas County.
(CR p. 194)
On May 18, 2015, BBL filed its “Emergency Motion To Cancel Mediation
And To Set Pending Motions For Hearing.” (CR pp. 197-201) In its prayer
contained in this motion, BBL prayed that the trial court would enter an order: (1)
granting the motion; (2) setting an emergency hearing on the Motion for Contempt,
Motion to Dissolve, and Motion for Receiver; and (3) granting general relief. (CR
p. 199) In its motion, BBL reiterated and re-urged its motion under Chapter 64 of
the Remedies Code and § 11.403 of the Business Organizations Code. (CR p. 199)
On May 19, 2015, BBL filed a Notice of Hearing On Plaintiff’s Emergency
Motion to Cancel Mediation and to Set Pending Motions for Hearing for May 29,
2105. (CR pp. 202-203) However, as with all its other pleadings, this motion is
void of any consideration of any of the issues raised by the pending arbitration and
the judicial receivership BBL sought in parallel thereto.
At the May 29, 2015 hearing, the 68th District Court announced it would
appoint a receiver. On June 1, 2015, the trial court signed the Order Appointing
Receiver, establishing a judicial receivership over Dream Creek that included
8
vesting the receiver with possession over a portion of a personal deposit account of
Keeth. (CR pp. 255-60) On June 19, 2015, Dream Creek and Keeth filed their
Notice of Appeal of Order Appointing Receiver. (CR pp. 279-86)
SUMMARY OF THE ARGUMENT
BBL and Dream Creek selected the arbitral forum to resolve their disputes.
Selection of the arbitral forum significantly limited the jurisdictional authority of
the trial court, especially because as part of the agreement to select arbitration there
was no agreement that receivership would be an available remedy. Because the
subject matter involves interstate commerce, the FAA applies, preempting
conflicting provisions of Texas law, including the Texas Arbitration Act (“TAA.”)
Neither the FAA nor the TAA states that a trial court may impose a receivership on
parties in arbitration.
Resulting from selection of the arbitral forum, and especially absent any
agreement that receivership would be an available remedy in arbitration, the trial
court was not a court of competent jurisdiction and not authorized under federal or
Texas law to impose a judicial receivership on parties in arbitration. The trial court
erred and abused its discretion in its findings that the Order Appointing Receiver
was just and proper under (1) Chapter 64 of the Texas Civil Practice & Remedies
Code, the source of general authority for imposition of judicial receiverships; (2)
Chapter 11 of the Texas Business Organizations Code, applicable to domestic
9
corporations; and (3) Subchapter D of Chapter 171 of the Texas Civil Practice &
Remedies Code, the TAA.
In the event this Court concludes the trial court had the authority to impose a
judicial receivership, the trial court erred and abused its discretion in its Order
Appointing Receiver. BBL failed to plead and prove several elements required by
the statutes upon which BBL based its request for receivership and upon which the
trial court expressly relied or which could sustain its appointment. Accordingly,
there is no evidence or legally insufficient evidence to support the Order
Appointing Receiver.
STANDARD OF REVIEW
Generally, questions concerning whether a trial court has jurisdiction are
reviewed de novo. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794
(Tex. 2002) (jurisdictional holding in special appearance procedure that cases
applying only an abuse of discretion standard were disapproved in favor of de novo
review as a question of law). Where, as here, the jurisdictional issue is raised by
the presence of a forum selection clause, arbitration in our case, the standard of
review for rulings on forum selection clauses determining jurisdiction is
instructive. Following BMC Software, this Court has held that in review of a trial
court’s ruling on jurisdiction based on a forum selection clause, factual findings for
legal and factual sufficiency and legal conclusions made by the trial court are
10
reviewed de novo. CNOOC Southeast Asia Ltd. v. Paladin Res. (Sunda) Ltd., 222
S.W.3d 889, 894 (Tex. App.—Dallas 2007, pet. denied) (citing A&J Printing, Inc.
v. DSP Enters., L.L.C., 153 S.W.3d 676, 680 (Tex. App.—Dallas 2004, no pet.)).
Absent any issue of whether the trial court had jurisdiction to appoint a
receiver, this Court has held that a trial court’s order appointing a receiver is
reviewed on an abuse of discretion standard. Spiritas v. Davidoff, 459 S.W.3d 224,
231 (Tex. App.—Dallas 2015, no pet). If, despite the parties’ selection of the
arbitral forum and the pending arbitration, this Court determines that the trial court
had the authority to appoint a receiver, the trial court’s order is reviewed for abuse
of discretion. “It is an abuse of discretion for a trial court to rule arbitrarily,
unreasonably, or without regard to guiding legal principles, or to rule without
supporting evidence.” Id. (quoting Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.
1998) (internal citations omitted)). An appellate court’s review of an order
appointing a receiver focuses on whether the pleadings and evidence are sufficient
to justify a receivership. Benefield v. State, 266 S.W.3d 25, 31 (Tex. App.—
Houston [1st Dist.] 2008, no pet.).
ARGUMENT
I. The Trial Court Lacked Authority To Appoint A Receiver.
Issue No. 1 (a)-(f) (Restated): Did the trial court have authority to establish a
judicial receivership when:
11
(a) BBL and Dream Creek had selected the arbitral forum and all parties
were in binding arbitration at the time the judicial receivership was
established;
(b) In connection with selecting arbitration, there was no agreement that
receivership would be an available remedy;
(c) Neither the Federal Arbitration Act nor the Texas General Arbitration
Act authorizes imposition of a judicial receivership over parties in
arbitration;
(d) The trial court was not a court of competent jurisdiction and not
authorized to appoint a receiver under Chapter 64 of the Texas Civil
Practice & Remedies Code or under Chapter 11 of the Texas Business
Organizations Code because of the forum selection for arbitration;
(e) BBL did not have standing to assert the Texas Construction Trust
Fund Act as the ground supporting the judicial receivership; and
(f) The conflict, interference, and uncertainty between the arbitration and
judicial receivership weighs against authorizing imposition of same.
A. The Court Lacked Authority To Appoint A Receiver Because The
Parties Had Selected The Arbitral Forum.
The subject receivership is referred to as a “judicial receivership.” The
receivership is “judicial” because after having selected the arbitral forum and then
initiating arbitration, BBL entirely bypassed the arbitration and the arbiter in
seeking the appointment of a receiver by the district court. BBL did not first seek
any order for a receivership from the arbitrator in the pending arbitration. Rather,
with the arbitration pending, BBL filed a damage suit in district court and
immediately thereafter sought a receivership directly from the trial court.
Further, on BBL’s motion, Keeth was compelled to join the pending
arbitration before the trial court appointed a receiver. Accordingly, at the time the
12
trial court appointed a receiver and imposed a “judicial receivership” all parties
were in the pending binding arbitration. Thus, our judicial receivership is distinct
and different from a receivership that may have been sought in the arbitration,
imposed by an arbitrator, and then potentially supported or enforced by an order
from the trial court pursuant to Texas Civil Practice & Remedies Code §
171.086(b)(2).1
(1) Arbitral Forum Selection Severely Limits A Trial Court’s
Authority.
In the contracts between them, BBL and Dream Creek selected the arbitral
forum rather than the judicial forum to resolve their disputes. (CR pp. 27, 57, 108-
9, 139-40) Pursuant to that choice, BBL successfully compelled Keeth,
individually, a non-signatory to the agreements, to join the pending arbitration.
(CR p. 185) Thereafter, with the parties in a pending arbitration, the trial court
appointed a receiver and imposed a judicial receivership. (CR pp. 255-60)
Therefore, the forum selection for arbitration is the starting point for consideration
of whether the trial court had the authority to appoint a receiver and impose a
judicial receivership upon parties despite a pending arbitration. Important to this
analysis is a corollary question—whether, in their selection of the arbitral forum,
1
In drawing this distinction Appellants do not intend to concede that the Arbitrator had the
authority to impose or could have properly, under circumstances presented on this record,
imposed a receivership on Dream Creek.
13
the parties had any agreement that a judicial receiver would be an available
remedy. The answer is no. (CR pp. 27, 57, 108-9, 139-40)
Generally, a trial court’s authority is extremely limited upon the parties’
selection of the arbitral forum. See Senter Invs., L.L.C. v. Amirali & Asmita
Veerjee & Al-Waahid, Inc., 358 S.W.3d 841, 844-45 (Tex. App.—Dallas 2012).
Indeed, the Supreme Court of the United States has noted that the clear intent of
arbitration is to move the parties out of court and into arbitration as quickly and
easily as possible. Moses H. Cone Hospital v. Mercury Construction Corp., 460
U.S. 1, 22 (1983).
Citing Forest Oil Corp. v. McAllen, 268 S.W.3d 51, 56 (Tex. 2008), the
Austin Court of Appeals observed that when parties have agreed to arbitrate, it is
axiomatic that courts are empowered to do little more than enforce the agreement
to arbitrate and stay further judicial proceedings pending an award. Comed
Medical Systems, Co., Ltd. v. AADCO Imaging, LLC, 2015 Tex. App. LEXIS 1762
(Tex. App.—Austin 2015) (unpublished opinion). For example, a trial court lacks
jurisdiction to order discovery related to the merits of claims in a pending
arbitration unless it is to enforce the discovery orders of the arbitrator. See In re
Houston Pipe Line Co., 311 S.W.3d 449, 450 (Tex. 2009); Transwestern Pipeline
Co. v. Blackburn, 831 S.W.2d 72, 78 (Tex. App.—Amarillo 1992, orig.
proceeding).
14
Both federal law and Texas law are clear and in accord that an agreement to
arbitrate is in the nature of forum selection. The Supreme Court of the United
States has held that an agreement to arbitrate is, in effect, a specialized form of a
forum-selection clause that establishes not only the situs but also the procedure to
govern resolving the dispute. Scherk v. Alberto-Culver Co., 417 U.S. 506, 519
(1974).
Likewise, the Supreme Court of Texas treats an agreement to arbitrate as
“another type of forum-selection clause,” holding that it “sees no meaningful
distinction between this type of forum-selection clause [(judicial)]
and arbitration clauses.” In re AIU Ins., 148 S.W.3d 109, 114, 121 (Tex. 2004).
On whether arbitration was waived, and whether an adequate remedy by appeal
exists, the Texas Supreme Court has consistently applied by analogy the law
governing questions of waiver, etc. arising in the context of agreements selecting a
judicial forum. See id. at 116; In re Automated Techs., Inc., 156 S.W.3d 557,
559 (Tex. 2004) (noting that the In re AIU Insurance court, in considering whether
the right to rely on forum-selection clause had been waived, “relied on cases
concerning waiver in the arbitration context, which we found to be analogous.”)
The Fifth Circuit Court of Appeals, likewise, has concluded that law
allowing an arbitration clause to be invalidated because of fraud or overreaching
applies by analogy to judicial forum-selection clauses because arbitration clauses
15
are a sub-set of forum-selection clauses in general. Haynsworth v. The Corp., 121
F.3d 956, 963 (5th Cir. 1997).
Finally, considering the effect of selection of a judicial forum other than the
forum in which suit was filed, this Dallas Court of Appeals has in two cases made
it clear that trial courts have limited authority by holding it an abuse of discretion
to fail to enforce forum selection clauses through dismissal for want of jurisdiction.
In re Brown, 441 S.W.3d 405, 407 (Tex. App.—Dallas 2013, no pet.); In re FC
Stone, LLC, 348 S.W.3d 548, 551 (Tex. App.—Dallas 2011, no pet.).
Applying these principles to our case, BBL and Dream Creek selected the
arbitral forum, and by analogy it is as if they had selected Illinois or Virginia as the
judicial forum vis-à-vis the limitation upon the jurisdiction and authority of the
trial court. Thus, upon selection of the arbitral forum, a trial court ceased to be a
court of general jurisdiction and lacked inherent jurisdiction, including the
authority to impose a judicial receivership upon parties who are engaged in a
pending arbitration. Therefore, if it exists, the authority of the trial court to appoint
a receiver and impose a judicial receivership upon parties that had selected the
arbitral forum must come from some specific source.
Contracts containing arbitration clauses may involve three potentially
relevant sources of legal authority for a trial court that had general jurisdiction over
the parties and subject matter: (1) the law governing the selection of the arbitral
16
forum, including procedures for the arbitration—AAA Construction Industry Rules
(“AAA Rules”) in our case; (2) the law governing the agreements to arbitrate and
supporting the performance of that agreement—the FAA and TAA; and (3) the law
governing the substantive contract—Texas Civil Practice & Remedies Code
Chapter 64; Texas Business Organizations Code Chapter 11; and the Texas
Construction Trust Fund Act (TCTFA). Review and analysis of each of these
potential sources of authority for the trial court’s imposition of a judicial
receivership establishes that the trial court was not authorized through any of these
legal systems. We begin with consideration of the law of the arbitral forum-the
arbitration.
B. Law Of The Arbitral Forum Does Not Authorize A Judicial
Receivership.
(1) Receivership Was Not An Agreed Arbitration Remedy.
Selection of the arbitral forum amounts to selection of not only the situs but
the procedure to govern resolution of their dispute. Scherk, 417 U.S. at 519; Smith
Barney Shearson, Inc. v. Boone, 47 F.3d 750, 753-54 (5th Cir. 1995). Thus, a
potential source of authority for a trial court to impose a receivership upon parties
in a pending arbitration is the same agreement through which those parties selected
arbitration.
(2) No Contractual Agreement For A Judicial Receivership
Exists.
17
In our case, the arbitration provisions did not contemplate court-entered
injunctive relief pending arbitration. (CR pp. 17-179); see Amegy Bank N.A. v.
Monarch Flight II, LLC, 870 F. Supp. 2d 441, 452 (S.D. Tex. 2012)
(acknowledging the possibility of a court's entering interim relief in the form of a
preliminary injunction where the parties had contemplated its use beforehand).
The “Agreement to Arbitrate” clauses at issue do state that controversies and
claims must be arbitrated, but there is no such “Preservation of Remedies” clause
that qualifies this language. The provisions are clear: if the parties had intended to
allow “a court having jurisdiction” to provide interim relief before, during, or after
arbitration, they would have contracted for it. See Monarch Flight II, LLC, 870 F.
Supp. 2d at 453. There was no agreement that a judicial receivership was a
potential remedy either in the arbitral forum, ancillary to the arbitration, or in
parallel with the arbitration. (CR pp. 17-179). Therefore, if it exists, the trial
court’s authority to impose a judicial receivership must come from some other
source.
(3) The AAA Rules Do Not Provide For A Judicial
Receivership.
In selecting arbitration, the parties did agree that the Construction Industry
Arbitration Rules of the American Arbitration Association would apply.
Therefore, the AAA Rules are a potential source of the trial court’s authority.
18
The purpose of this specialized arbitral institution is to provide for the
resolution of disputes by respected members of the same profession who have
extensive personal experience in the subject matter of the dispute. See Howsam v.
Dean Witter Reynolds, 537 U.S. 79, 85-86. The existence of well-defined customs
in the profession or trade, the expertise of the arbitrators, and the pressure on
members to respect the rules of the professional or trade association, all encourage
respect for the arbitral process and for arbitral awards. See generally American
Arbitration Association Areas of Expertise, Construction,
https://www.adr.org/aaa/faces/aoe/cre/construction (last visited July 23, 2015).
Review fails to reveal any provision, within the specialized construction
industry AAA Rules, that authorizes, or even supports, appointment of a judicial
receiver or imposition of a judicial receivership over parties arbitrating pursuant to
these AAA Rules. From the above, it is clear that there is no basis for authority for
the trial court’s appointment of a judicial receiver over Dream Creek or Keeth
found in any agreement of the parties. Nothing in the arbitration provisions in
question, or otherwise in any Subcontractor Agreement in question, provides that
in selecting the arbitral forum, the parties agreed that a court may appoint a
receiver over any party to the arbitration. There was no agreement that a judicial
receivership was a potential remedy either in the arbitral forum or ancillary to the
arbitration. Nothing in the AAA Rules, to which the parties did agree, authorizes a
19
trial court to impose a judicial arbitration on the parties in arbitration. Thus, if it
exists, the authority of the trial court must be found in some other source.
C. Law Supporting Arbitration Does Not Authorize Judicial
Receivership.
Having agreed to participate in an arbitral process to resolve their disputes,
the parties agreed to respect the process as binding between them. Indeed, where
two parties have agreed to submit their dispute to a wise outsider for resolution,
how can one of them later refuse to defer to the wisdom yet to be applied? By and
large, parties do accept the decisions of arbitrators who are fellow professionals in
the same field of commerce.
However, where arbitration clauses either fill a vacuum—that is, take the
place of no choice of forum in the contract, which would permit a claimant to bring
suit in any court where it could get jurisdiction over the defendant, or replace a
choice of a state court—the parties are not inspired by any of the positive
sentiments which promote the voluntary respect of the arbitral process. These
unfortunates are neither motivated by the wisdom of the particular arbitrators
chosen nor by a corporative attitude of cooperation. Indeed, it is no longer unusual
that a party may fail to cooperate in the arbitral process, or even actively obstruct it
(e.g., by exploiting a trial court judge unfamiliar with the unique circumstances of
construction disputes).
20
It is this lack of cooperation that leads to the necessity to consider judicial
assistance to the arbitral process and, to assure respect of said process, recourse to
the enforcement powers enjoyed only by the State. See Tex. Civ. Prac. & Rem.
Code § 171.087.
It is against this backdrop, at least in part, that the United States Congress
and the Texas Legislature have made provisions for those parties disinclined to
respect the arbitral process. Additionally, in order to support the arbitration
proceeding and achieve its goals, procedures are prescribed by the relevant
sections of the FAA and the TAA. Although these statutes are potential sources of
a trial court’s authority, review and analysis reveals that none of these statutes
authorizes imposition of a judicial receivership.
(1) The FAA Does Not Authorize A Judicial Receivership.
Because the matters involved in the arbitration in our case patently involve
interstate commerce, the FAA applies. Thus, the question raised is whether the
federal act authorizes a trial court to appoint a receiver and impose a judicial
receivership upon parties arbitrating under the FAA. The answer is no.
The arbitration provision in each Subcontractor Agreement in question does
not specify expressly whether the agreed arbitration is governed by the FAA or the
TAA. (CR pp. 27, 57, 108-9, 139-40) Absent such express agreement, the FAA
will govern upon showing that the transaction involves or affects interstate
21
commerce. In re L&L Kempwood Assocs., L.P., 9 S.W.3d 125, 127 (Tex. 1999);
Jack B. Anglin, Co. v. Tipps, 842 S.W.2d 266, 269-70 (Tex. 1992).
From the face of the contracts in question, the transactions at issue in this
case involve or affect interstate commerce. Inter alia, BBL is a New York limited
partnership with construction projects in Texas and Oklahoma. Further, Dream
Creek, a Texas corporation, agreed to provide framing services on not only
projects in Corpus Christi and Midland, but also on the Mosaic project, located in
Oklahoma City, Oklahoma. (CR pp. 17, 19, 50, 100) Thus, without question, the
FAA applies. See In re L&L Kempwood Assocs., L.P., 9 S.W.3d 125 at 127
(holding the FAA is applicable in a case in which work on apartments in Texas
was performed for Georgia owners by Texans); In re Nexion Health at Humble,
Inc., 173 S.W.3d 67, 69 (Tex. 2005) (holding FAA is applicable to medical
negligence case for malpractice allegedly committed in Texas by Texans upon a
Texan, because Medicare had paid some of the medical charges).
Review of the FAA, concerning whether appointment of a judicial receiver
is permitted, reveals that the federal act does not contain any provision authorizing
a trial court to appoint a receiver and establish a judicial receivership upon any
party engaged in a pending arbitration governed by the FAA. Federal case
authority supports a trial court ordering preliminary relief, including appointment
of a receiver, before referring a case to arbitration. See Janvey v. Alguire, 647
22
F.3d 585, 593 (5th Cir. 2011). Research, however, has failed to reveal any United
States Supreme Court or Circuit Court of Appeals authority deciding whether after
initiation of arbitration, the FAA permits imposition of a judicial receivership upon
parties in a pending arbitration, especially absent any agreement by the parties that
judicial receivership is a potential remedy in the arbitral forum. See Gulf Guar.
Life Ins. Co. v. Conn. Gen. Life Ins. Co., 304 F.3d 476, 487 (5th Cir. 2002) (“The
FAA does not provide therefore for any court intervention prior to issuance of an
arbitral award beyond the determination as to whether an agreement to arbitrate
exists and enforcement of that agreement by compelled arbitration of claims that
fall within the scope of the agreement even after the court determines some default
has occurred. Moreover, enforcement of an agreement to arbitrate under the FAA
does not appear to include any mechanism beyond those geared toward returning
the parties to arbitration . . . .”).
Research has revealed one federal district court memorandum opinion
which, in the context of ruling on a motion to dismiss for failure to state a claim,
pursuant to Federal Rule of Civil Procedure 12(b)(6), considered but made no
decision regarding the propriety of a request for appointment of a judicial receiver
made by an arbitration party. Wells Fargo Bank, N.A. v. Star Tex. Gasoline & Oil
Distribs., 2015 U.S. Dist. LEXIS 10673 (S.D. Tex. 2015). Important to the district
23
court’s consideration was whether a bargained-for provision, including judicial
receivership as an agreed-upon remedy, was included in the agreement to arbitrate.
In Wells Fargo Bank, N.A. v. Star Tex. Gasoline & Oil Distribs., Wells
Fargo Bank requested appointment of a receiver “ancillary to an anticipated
arbitration proceeding” arising out of an alleged breach of loan agreements. 2015
U.S. Dist. LEXIS 10673, at *3. Star Texas Oil filed a Rule 12(b)(6) motion to
dismiss for failure to state a claim upon which relief could be granted. The district
court reviewed federal law concerning receiverships noting that the Supreme Court
had determined that appointment of a receiver was not an end in itself, but a means
to a legitimate end justifying a court exercising its equity powers. Id. at *7;
Kelleam v. Md. Cas. Co., 312 U.S. 377, 381 (1941).
Because of arbitration of its substantive claims, Wells Fargo agreed that its
emergency application for appointment of a judicial receiver did not include any
primary claim for relief. However, in opposition to dismissal, Wells Fargo relied
on language from a credit agreement executed by Star Texas that expressly
preserved the right of any party to, inter alia, obtain appointment of a receiver.
Obviously, based on this language in the credit agreement and giving efficacy to
the agreements of the parties, the district court denied dismissal. But, the district
court expressly disclaimed any view on whether receivership is available absent a
contract provision providing for or at least preserving a right to seek the same. In
24
so doing, the district court limited the applicability and precedential value of its
decision.
A court should not appoint a receiver when such appointment is not
auxiliary to some primary relief which is sought and which equity may
appropriately grant. Id. Further, there is no occasion for a court of equity to
appoint a receiver of property for which it is not asked to make any substantive
disposition. Tucker v. Baker, 214 F2d. 627, 632 (5th Cir. 1954).
In our case, BBL and Dream Creek had no agreement that a judicial
receivership would be an available remedy. Further, their contracts contained no
provision preserving any right to even seek such a remedy. Nothing in the
arbitration provisions in question, or otherwise in the contracts in question, provide
that, in selecting the arbitral forum, the parties agreed that a court may appoint a
receiver over any party to the arbitration. In other words, there was no agreement
that a judicial receivership was a potential remedy either in the arbitral forum or
ancillary to the arbitration. As of the time BBL renewed its request and the trial
court appointed the receiver, all substantive relief was pending in the arbitration.
Therefore, applying the general federal law concerning receiverships, coupled with
the fact the FAA does not provide for same, there is no basis for concluding federal
law supports authorizing the trial court to appoint a receiver.
25
The FAA does authorize a trial court to take certain actions and issue certain
orders. 9 U.S.C. § 16. However, absent from such authorization is imposing a
judicial receivership. Obviously, Congress could have easily included within the
FAA the authorization for federal district courts to appoint receivers and impose
judicial receiverships on parties in arbitrations. Congress, however, did not do so.
Consistent with the limitation of judicial authority by selection of the arbitral
process and absent express authorization for receiverships in the FAA, this Court
should conclude that the FAA is not a source of authority for the trial court to
appoint the receiver over Dream Creek. See Gulf Guar. Life Ins. Co., 304 F.3d at
487. If it exists, the authority must be found in yet some other source.
(2) The TAA Does Not Authorize Judicial Receiverships
Because A Receivership Is Not Among Orders Authorized
by § 171.086.
That the FAA governs the arbitration in this case is not the end of the
analysis and consideration of whether the trial court had the authority to impose a
judicial receivership on Dream Creek in this case. BBL and Dream Creek did not
expressly choose either the FAA or the TAA to govern the arbitration. (CR pp. 27,
57, 108-9, 139-40) Each Subcontractor Agreement had only a general choice of
law provision, three for the law of Texas and one for the law of Oklahoma. (CR
pp. 26, 56, 108, 138) The Supreme Court of Texas has held that in view of
agreement on merely a general choice of law, both the FAA and the TAA apply.
26
In re D. Wilson Constr. Co., 196 S.W.3d 774, 778-79 (Tex. 2006) (citing In re L
& L Kempwood Assocs., L.P., 9 S.W.3d 125 (Tex. 1999) (per curiam)). The FAA
controls only over conflicting provisions of the TAA, preempting conflicting but
not consonant state law. In re D. Wilson Constr. Co., 196 S.W.3d at 779-80. As
the FAA is silent concerning judicial receiverships, the issue raised is whether the
TAA authorizes a trial court to impose a judicial receivership upon parties in
arbitration. The answer is no.
Because a trial court would otherwise have virtually no jurisdiction over a
case in the arbitral forum, one of the purposes of the TAA, codified as Texas Civil
Practice & Remedies Code § 171.001 et seq., is to confer on the court limited
jurisdiction to act despite the agreement for arbitration. Specifically, Subchapter D
of Chapter 171 of the Remedies Code provides a trial court such authority and,
thus, is a potential source of authority to impose a judicial receivership.
Analysis begins with § 171.081 entitled “Jurisdiction.” Tex. Civ. Prac. &
Rem. Code § 171.081. Consistent with a court having only limited authority, this
section of the Remedies Code provides that an agreement to arbitrate confers
jurisdiction on the court to enforce the agreement to arbitrate and to render
judgment on an award. It is important to note that the TAA does not confer
general jurisdiction on the court as part of the selection of the arbitral forum. In §
171.086, the TAA does confer on a trial court limited authority to take only certain
27
actions and issue certain orders purposed to facilitate the initiation of arbitration, in
support of the arbitration, and to enforce the arbitration award, so long as it is not
contrary to federal law and the FAA.
Texas Civil Practice & Remedies Code § 171.086 appears at first blush to be
the most viable potential source of a trial court’s jurisdiction and authority to
impose a judicial receivership because this section authorizes a trial court to take
certain actions and issue selected orders in connection with a pending arbitration.
The specific orders that a trial court is authorized to make before arbitration
proceedings begin are set forth in § 171.086(a). Expressly permitted orders a trial
court is authorized to make while arbitration proceedings are pending are provided
in § 171.086(b). These include any of the orders listed in § 171.086(a). Tex. Civ.
Prac. & Rem. Code §171.086(b)(1). Thus, the orders a trial court has authority to
issue, while an arbitration is pending, as expressly stated, include: (1) orders for
service of process, § 171.086(a)(1); (2) exercising jurisdiction over an ancillary
proceeding in rem, including attachment, garnishment or sequestration, §
171.086(a)(2); (3) enjoining or restraining for certain limited purposes, §
171.086(a)(3); (4) pre-arbitration discovery, § 171.086(a)(4); and (5) appointing
arbitrators so that the agreed arbitration may proceed, § 171.086(a)(5). Appointing
a receiver is not listed among orders expressly set forth in § 171.086(a).
28
There are additional orders for which § 171.086(b) expressly provides.
However, review of § 171.086(a), together with § 171.086(b), readily reveals that
the appointment of a receiver and imposition of a judicial receivership to be
conducted along a parallel track with a pending arbitration is not listed in either
subsection. See In re Gulf Exploration, LLC, 289 S.W.3d 836, 841 (Tex. 2009).
There is no express authorization for the trial court to order a receiver and impose a
judicial receivership anywhere in Subchapter D of Chapter 171 of the Remedies
Code.
One subsection, § 171.086(a)(6), however, grants authorization for
unspecified orders for “other relief” raising the question of whether authorization
for a trial court’s imposition of the receivership may be found in this subsection.
Reading the applicable subsections of § 171.086 together, a party may, during a
pending arbitration, file an application for a court order “to obtain other relief,
which the court can grant in its discretion, needed to permit the arbitration to be
conducted in an orderly manner and to prevent improper interference or delay of
the arbitration.” Tex. Civ. Prac. & Rem. Code § 171.086(a)(6) (West 2014).
Two specific questions are thus raised by § 171.086(a)(6). First, is whether
a judicial receivership is ever within the scope of § 171.086(a)(6) so that judicial
receivership is an authorized remedy paralleling an arbitration. Appellants urge
that the answer is no. However, if this Court answers this question “yes,” then the
29
second question is whether the trial court properly exercised its discretion under
the pleading and proof in our case to impose a judicial receivership. The answers
to both questions are no.
Just as the U.S. Congress did not expressly include a judicial receivership in
the FAA as a remedy available to trial courts, the Texas Legislature did not
expressly include appointment of a receiver in § 171.086 of the Remedies Code.
Having listed various grants of authority, including a number of specific orders,
judicial receivership was not included on the list. Certainly had the Legislature
intended that the harshest of remedies of which courts are admonished to use very
sparingly and only as a last resort was a remedy for which an arbitration party
could apply, receivership would have been listed in § 171.086. This is especially
the case because ancillary relief in rem and injunctive relief were, within set limits,
already specifically authorized by § 171.086(a)(2) and (3). Accordingly, under the
doctrine of expressio unius est exclusio alterius—the naming of one thing excludes
another—this Court should hold that appointment of a receiver is not authorized,
especially not by a mere amorphous reference to “other relief” in § 171.086(a)(6).
Although research has failed to reveal any case squarely addressing this first
question, there are cases overturning other actions taken by trial courts because the
court lacked authority due to pending arbitrations. Texas courts generally apply
Texas procedural law even while applying the parties’ contractual choice of law
30
for substantive matters. Nexen, Inc. v. Gulf Interstate Eng'g Co., 224 S.W.3d 412,
417 (Tex. App.--Houston [1st Dist.] 2006, no pet.) (holding that because the
arbitration clauses did not authorize the trial court to appoint arbiters, mandamus
was conditionally issued to vacate the trial court’s appointment). In another case
in arbitration, the Texas Supreme Court held that § 171.086 provided only limited
authority for a trial court to order only certain discovery. In re Houston Pipe Line
Co., 311 S.W.3d 449, 451 (Tex. 2009). Pre-arbitration discovery is expressly
authorized under the TAA when a trial court cannot fairly and properly make its
decision on the motion to compel arbitration because it lacks sufficient information
regarding the scope of an arbitration provision or other issues of
arbitrability. See and 171.086(a)(4), (6). This, however, is not an authorization to
order discovery as to the merits of the underlying controversy. Id.
Because of the jurisdictional limitations resulting from arbitration, a trial
court does not have the authority to impose its choice of arbitrators and its orders
for merits-based discovery upon parties in arbitration. This Court should follow
these principles and hold that the 68th District Court did not have the authority to
impose a judicial receivership upon Dream Creek and Keeth.
The second question is whether, assuming it had authority, the trial court
properly exercised its discretion under the pleading and proof in our case to impose
31
a judicial receivership. Arguments and authorities concerning this question are
presented in analysis of Issue Two (b), infra, at page 52.
D. Neither Remedies Code Chapter 64 Nor Business Organizations
Code Chapter 11 Authorize A Judicial Receivership.
In its pleadings, motion, and supporting trial brief, BBL requested the
appointment of a receiver pursuant to Texas Civil Practice & Remedies Code §
64.001 et seq. and §§ 11.402 and 11.403 of the Texas Business Organizations
Code. (CR pp. 493-500, 501-611, 805-815) However, BBL’s submittals are all
void of any pleading, consideration, or authority on the effect of the parties’ choice
of the arbitral forum, their lack of agreement that receivership is a potential
remedy, and that the trial court was being asked to establish a judicial receivership
in parallel to the pending arbitration. Id.
(1) The Trial Court Is Not A Court Of Competent Jurisdiction
Under Texas Civil Practice & Remedies Code § 64.001(a).
Review of the Order Appointing Receiver signed by the trial court
conclusively establishes that the trial court looked, at least in part, to Texas Civil
Practice & Remedies Code §§ 64.001(a)(3), (5), and (6) for authority, or at least
justification, for its appointment. (CR pp. 255) However, while making the
remedy of receivership available, none of these code provisions within themselves
vest a trial court with any original jurisdiction necessary to impose the remedy of
receivership, especially in view of the selection of the arbitral forum by the parties.
32
To begin with, § 64.001(a) states “[A] court of competent jurisdiction may
appoint a receiver.” Tex. Civ. Prac. & Rem. Code § 64.001(a) (emphasis added).
From the above analysis, because the parties selected the arbitral forum a trial
court lacks inherent authority to appoint a judicial receiver. Applying the judicial
forum selection analogy, had BBL and Dream Creek selected Louisiana as the
forum, and BBL made its emergency motion in a trial court in Dallas County,
Texas to appoint a receiver based on § 64.001(a), the trial court would obviously
not be a “court of competent jurisdiction” to entertain BBL’s application. Because
Texas was not the selected forum, § 64.001(a) would not authorize the trial court to
appoint a receiver. The same is true in our case because the parties chose the
arbitral forum not the judicial forum in Texas.
Beyond the express application in § 64.001(a) to a court of “competent
jurisdiction,” nothing thereafter in Chapter 64 of the Remedies Code provides a
court any “competent jurisdiction.” Especially in the face of selection of the
arbitral forum, the “competent jurisdiction” required by § 64.001(a) must come
from some source other than Chapter 64 of the Remedies Code. Apparently, BBL
and the trial court merely presumed, without any consideration or analysis, that the
trial court was a court of “competent jurisdiction” despite the fact BBL selected
arbitration and compelled Dream Creek and Keeth to arbitrate. Nothing in Chapter
64 of the Remedies Code, however, supplies the trial court competent jurisdiction.
33
In the unlikely event this Court determines that Chapter 64 of the Code
somehow vests or provides a court any “competent jurisdiction,” the analysis
above reveals that federal law and the FAA preempts this application of Chapter 64
of the Code. Because nothing in Chapter 64 of the Texas Civil Practice &
Remedies Code requires an agreement of the parties in the arbitral forum that a
judicial receivership is a viable remedy in the arbitration, there is a conflict with
federal law. Therefore, any such application of Chapter 64 to vest the trial court
with “competent jurisdiction” is preempted. Thus, the trial court’s authority to
appoint a judicial receiver must come from yet some other source.
(2) The Trial Court Lacked Jurisdiction Under Texas Business
Organizations Code § 11.404.
BBL sought the receivership under and the trial court found that the
receivership was justified and proper pursuant to Texas Business Organizations
Code §§ 11.404(a)(1)(A), (C) and (D). (CR p. 255) However, the analysis must
begin with § 11.401 of the Texas Business Organizations Code which governs
appointments of receivers in general under this Subchapter I. § 11.401 provides
that a receiver may be appointed over a domestic business organization only
according to the terms and conditions of the Texas Business Organizations Code.
Therefore, by the plain reading of § 11.404(a) of the Texas Business Organizations
Code, a receivership is not “other relief” under § 171.086(a)(6) of the Remedies
Code. Rather, the Texas Business Organizations Code exclusively governs the
34
appointment of a receiver for the business and/or property of Dream Creek, a
domestic corporation. Although research has failed to reveal any case in which a
trial court has attempted to appoint a receiver over a domestic business
organization that was in a pending arbitration, Dream Creek and Keeth contend
that the plain reading of the black letter of the Texas Business Organizations Code
establishes the exclusive terms and conditions and that these are not incorporated
into § 171.086(a)(6) of the Remedies Code. Regardless, review of terms and
conditions required by the Texas Business Organizations Code reveals that
applicable requirements include jurisdictional elements.
Not unlike the “court of competent jurisdiction” requirement of § 64.001(a)
of the Remedies Code, in order to appoint a receiver over a domestic corporation, §
11.402(a) of the Texas Business Organizations Code requires a court must have
subject matter jurisdiction over the specific property of a domestic corporation or
foreign entity in this state and that entity must be in litigation. Tex. Bus. Orgs.
Code § 11.402(a) (West 2014). This section of the Texas Business Organizations
Code requires that a court have jurisdiction over the property and business
according to § 11.402(a) of the Code. The conjunction “and,” joining jurisdiction
and litigation, means that the requirement for litigation is also jurisdictional. BBL
and Dream Creek selected the arbitral forum and they are in arbitration and not
litigation. Thus, § 11.402(a) does not provide the trial court the authority to
35
impose a judicial receivership based on this section of the Texas Business
Organizations Code. Because § 11.402(a) is foundational to § 11.404, a trial court
that does not meet the jurisdictional requirements of § 11.402(a) is without
authority to impose a receivership under any subsection of § 11.404. It is axiomatic
that a trial court acting without authority to do so abuses its discretion. Hines v.
Villalba, 231 S.W.3d 550, 552 (Tex. App.—Dallas 2007) (“Lack of subject matter
jurisdiction is fundamental error.”)
The trial court erred and abused its discretion in determining that the Order
Appointing Receiver was proper under § 11.404 of the Texas Business
Organizations Code because the 68th District Court was not a court of proper
jurisdiction for the reason that it is in Dallas County, not Parker County. Pursuant
to § 11.402(b) of the Texas Business Organizations Code , “[a] district court in the
county in which the registered office or principal place of business of a domestic
entity is located has jurisdiction to: (1) appoint a receiver for the property and
business of a domestic entity for the purpose of rehabilitating the entity as provided
by Section 11.404.” Tex. Bus. Orgs. Code § 11.402(b) (emphasis added) With the
order transferring original venue in Dallas County to Parker County, based upon
the facts that Dream Creek’s principal place of business is there and Keeth is a
resident of Parker County, the venue facts have already been adjudicated in this
case. (CR pp.11, 868) Venue adjudication establishing that Dream Creek and
36
Keeth are residents of Parker County were established well before the 68th District
Court of Dallas County issued the Order Appointing Receiver and imposed the
judicial receivership.
From the plain reading of § 11.402(b) of the Texas Business Organizations
Code, a district court in Parker County, and not the 68th District Court in Dallas
County, was established as the court with jurisdiction under § 11.402(b) to appoint
a receiver pursuant to § 11.404. Therefore, in addition to lack of jurisdiction
because of the parties’ selection of the arbitral forum, the 68th District Court lacked
jurisdiction to appoint a receiver under § 11.404. Accordingly, the trial court erred
and abused its discretion in finding that its Order Appointing Receiver was
justified and proper under §§ 11.404(a)(1) (A), (C), and (D) because the 68th
District Court did not have jurisdiction to make the appointment under those
sections. For this additional reason, the Order Appointing Receiver cannot stand
and this Court should hold that the jurisdictional requirements of Chapter 11 of the
Texas Business Organizations Code are exclusive and prevail over Subchapter D
of Chapter 171 of the Remedies Code.
In the event this Court determines that somehow the trial court had the
authority to appoint a receiver pursuant to § 11.402 or § 11.404 of the Texas
Business Organizations Code, Dream Creek and Keeth present their arguments and
authorities supporting their contention that that trial court abused its discretion
37
because there was no pleading or evidence supporting the Order Appointing a
Receiver in Issue Two (a), infra at page 47.
E. BBL Does Not Have Standing To Bring A Trust Fund Act Claim.
(1) A Texas Construction Trust Fund Act Claim May Only Be
Asserted By Downstream Subcontractors, Not Upstream
Payors.
The gravamen of virtually all of BBL’s efforts in this case, including without
limitation, to have a receiver appointed, is its allegation that Dream Creek violated
the Texas Construction Trust Fund Act to BBL’s detriment. Tex. Prop. Code §
162.001 et seq. (West 2013). The Trust Fund Act provides an additional cause of
action for recovery by a materialmen or subcontractor against an upstream
contractor who received money, typically from the project owner, but failed to use
those funds to pay subcontractors or materialmen. Under the Trust Fund Act, a
“trustee” “is liable for misapplication of trust funds if he intentionally or
knowingly or with intent to defraud, directly or indirectly, retains, uses, disburses,
or otherwise diverts trust funds without first fully paying all current or past due
obligations incurred by the trustee to the beneficiaries of the trust funds.”
Holladay v. CW & A, Inc., 60 S.W.3d 243, 245-46 (Tex. App.—Corpus Christi
2011, pet. denied).
A party who misapplies trust funds under the Trust Fund Act may be subject
to civil liability if (1) he breaches his duty owed under the Trust Fund Act to the
38
beneficiaries of the trust funds, and (2) the plaintiff is within the class of people
that the act was designed to protect and have asserted the type of injury the act was
intended to prohibit. Lively v. Carpet Servs., Inc., 904 S.W.2d 868, 873 (Tex.
App.—Houston [1st Dist.] 1995, writ denied). Thus, the issue raised is whether
BBL is within the class of those the Trust Fund Act is designed to protect and thus
has standing to bring the action.
BBL claims payments it had made to Dream Creek are “trust funds;” that
Dream Creek did not properly use these funds to pay laborers, subcontractors,
materialmen and suppliers; and that Dream Creek diverted the funds. (CR pp. 633-
34) It is undisputed that the relationship between BBL and Dream Creek is
contractor and subcontractor. (CR pp. 17-179) On this basis, BBL plead for the
appointment of a receiver by the trial court. (CR pp. 638-39) The case law is
settled that an owner or an upstream contractor, such as BBL, is not a beneficiary
under the Trust Fund Act; BBL is not among the class of those the trust fund is
purposed to protect; and, therefore, BBL does not have standing to assert a cause
of action under the Trust Fund Act. A subcontractor does not hold funds paid to it
by a general contractor in trust for the benefit of the general contractor or the
owner. To the contrary, BBL held whatever funds it received from the owner in
trust for the benefit of Dream Creek, not the other way around. See Farrel
Constr., Inc. v. Schreiber, 466 B.R. 903, 912 (S.D. Tex. Bankr. 2012) (holding that
39
a general contractor who is a statutory trustee to its subcontractor under the Trust
Fund Act cannot also be a beneficiary that can sue the subcontractor for
misapplication of those funds).
Every construction trust fund case Dream Creek has been able to identify
has held that an upstream contractor does not have standing to sue a downstream
subcontractor for a violation of the Trust Fund Act. For example, the case of
Robax Corp. v. Prof’l Parks, Inc., 2008 U.S. Dist. LEXIS 60626, 2008 WL
3244150 (N.D. Tex. 2008) is very persuasive.
In Robax, Texas Waterworks was retained to design and build an aquatic
facility for the City of Frisco, Texas. Texas Waterworks then subcontracted with
Professional Parks, Inc. to manufacture, deliver, and install the waterslides for the
project. Professional Parks, in turn, contracted with Polin to manufacture one of
the waterslides. Robax Corp. v. Prof’l Parks, Inc., 2008 U.S. Dist. LEXIS 60626,
*3, 2008 WL 3244150 (N.D. Tex. 2008).
The evidence showed that Texas Waterworks paid to Professional Parks
funds that were intended to cover the cost for Polin’s manufacture of the slide.
The evidence also showed that Professional Parks had wrongfully failed to pay
those funds over to Polin. This resulted in delays on the project and Texas
Waterworks having to replace Professional Parks at a significant increased cost.
Id. at *4-5. Texas Waterworks then sued Professional Parks for violations of the
40
Texas Construction Trust Fund Act. The court, however, dismissed Texas
Waterworks’ claim for lack of standing. As the court stated:
Although Texas Waterworks has met many of the elements of a Trust
Act claim against defendants, it has not demonstrated that it is among
the class of persons whom the Trust Act was intended to protect. The
funds Texas Waterworks paid Professional were trust funds, but Texas
Waterworks was not a beneficiary of these funds. If anyone was a
beneficiary, it was Polin, or anyone else furnishing material or labor
in manufacturing the waterslides that Professional was required to
deliver to Texas Waterworks.
Texas Waterworks was not required to perform, and in fact did not
perform, any services to assist Professional in fabricating the
waterslides for the Project. The Trust Act was meant to protect those
contractors or subcontractors who have completed labor or have
provided materials and who are entitled to payments of trust funds and
thus are beneficiaries of these funds. Texas Waterworks is not
among the class of persons.
Texas Water works has presented no authority to suggest that non-
beneficiaries of misappropriated trust funds can bring a claim under
the Trust Act. The court is not aware of any case in which a party
in Texas Waterworks’ situation—a contractor who has paid the
trust funds at issue to a downstream subcontractor—has
successfully asserted a Trust Act claim against a downstream
subcontractor for misappropriation of those funds. Texas
Waterworks in complaining of Professional’s non-performance,
not its non-payment. Thus Texas Waterworks cannot bring this
claim against Professional under the Trust Act. Id. at *11-13
(emphasis added).
The Robax court then went on to reject Texas Waterworks’ argument that it
could assert a claim under the Trust Fund Act as a third-party beneficiary or under
the doctrine of equitable subrogation. Id. at *17 (“the doctrine of equitable
subrogation would not allow Texas Waterworks to stand in Polin’s shoes to assert
this claim . . . And even if Texas Waterworks’ theory had force, the doctrine of
41
equitable subrogation applies only if the payments satisfying Professional’s debt to
Polin were made involuntarily.”).
In a more recent case, a court affirmed Robax’s holding that a general
contractor cannot assert a Texas Construction Trust Fund Act claim against one of
its subcontractors. Farrell Constr., Inc. v. Schreiber, 466 B.R. 903 (S.D. Tex.
Bankr. 2012). In Farrell, the general contractor, T.D. Farrell, attempted to get
around its standing problem by relying on an express cause of action assignment to
it from a downstream supplier. The court rejected this argument out of hand,
stating:
T.D. Farrell has submitted no authority for the proposition that a
general contractor who has acted as trustee for trust funds can by
means of assignment, subrogation, or indemnity assert a statutory
claim in place of the actual statutory beneficiary under the Texas
Construction Trust Fund Act . . . Where a Texas statute requires a
plaintiff to have particular characteristics to obtain the benefit of
a protected status, an assignment of the protected status is
ineffective. Id. at 913 (emphasis added) (internal citations omitted).
The Farrell court also found meritless the argument that language in T.D.
Farrell’s contract with the defendant was sufficient to impose trust-like duties on a
subcontractor in favor of T.D. Farrell. The court held that just because one calls
funds received from an owner “trust funds” in a construction contract does not
satisfy the legal requirements for creating an express trust, and this does not get
around the fundamental problem that a general contractor who is a trustee cannot
also be the intended beneficiary of such a trust. Id. at 916.
42
The foregoing analysis of the Trust Fund Act, and the cases interpreting it,
show that BBL never had and never will have standing to assert a claim for
violation of the Texas Construction Trust Fund Act against Dream Creek. In its
trial brief, BBL apparently merely assumed it could bring a trust fund action and
failed to cite any authority supporting its standing to do so. (CR pp. 805-815)
Further, there is no evidence in this Record on Appeal by which BBL established it
has standing to bring the trust fund action.
(2) Lack Of Standing Results In Trial Court Lacking Authority
To Appoint A Receiver.
Standing is not only a prerequisite to filing suit and maintaining a cause of
action, but also concerns jurisdiction. If a party does not have standing to bring an
action, the trial court does not have jurisdiction over the action. Heckman v.
Williamson Cty., 369 S.W.3d 137, 150 (Tex. 2012). Standing is a component of
subject matter jurisdiction and, as such, can be raised by an appealing party for the
first time on appeal or even by the court at any time. West Orange-Cove Consol.
ISD v. Alanis, 107 S.W.3d 558, 583 (Tex. 2003); Finance Comm’n v. Norwood,
418 S.W.3d 566, 580 (Tex. 2013). BBL’s lack of standing is another reason the
trial court was not a court of “competent jurisdiction” required under the analysis
of Chapter 64 of the Remedies Code, generally governing receiverships in the
judicial forum.
43
F. Probable Conflict, Interference, And Uncertainty Between
Arbitration And Judicial Receivership Weighs Against
Authorizing Imposition.
The Order Appointing Receiver in this case serves as a good example of the
consequences of a parallel judicial track in which the parties’ selection of the
arbitral forum has been, at very most, an afterthought. Unbridled from the
limitation on judicial authority resulting from the pending arbitration, the judicial
receivership imposed by the trial court goes way beyond the bounds of the claimed
purpose of preservation of funds received by Dream Creek and its assets to be
available should BBL prevail on the merits of its claims in the pending arbitration.
The charge given the receiver by the trial court in our case includes: (1)
managing the day-to-day affairs of Dream Creek; (2) control over the management
and operation of Dream Creek; (3) control of all property; (4) authority to hire and
fire employees; (5) authority to sell and lease property; (5) authority to establish
bank accounts, make payments and receive payments from Dream Creek’s debtors.
(CR pp. 256-58) There is nothing in the order through which the receiver has any
instruction, much less duty, to coordinate any activity with the Arbitrator or take
the pending arbitration into account in any way. It is obvious that the potential
exists for the judicial receivership, running in parallel with the arbitration and
unmoored from the limitation of authority resulting from selection of the arbitral
44
forum for resolution of the disputes out of which the perceived need for a
receivership arose, to result in interference, conflict, and uncertainty.
It is simply bad policy to permit such an intrusion of judicial activities upon
a pending arbitration through a determination that, through inference of “other
relief” or another amorphous reference, a judicial receivership is a remedy
authorized by the FAA or the TAA. This Court should hold in this case, and in
absence of an agreement of the parties in arbitration, that a receivership is not an
available remedy, and the trial court lacked the authority to impose a judicial
receivership upon Dream Creek and Keeth. A holding that the trial court has full
authority, despite the selection of the arbitral forum, to simply run a parallel case,
even under the guise of “supporting the purposes of the arbitration,” not only
frustrates the arbitral process but diminishes the choice of forum the parties made
in their contract. Holding that a trial court may impose a judicial receivership upon
a party in arbitration, despite selection of the arbitral forum, nullifies the efficacy
of the choice of that forum. The Order Appointing Receiver cannot stand.
45
II. The Trial Court Abused Its Discretion In Appointing A Receiver.
Issue No. 2 (Restated): Did the trial court abuse discretion in appointing a
receiver when:
(a) BBL failed to (i) establish that Dream Creek was in litigation and that
the action in litigation was an action by an owner or a member of the
domestic entity as required by § 11.404(a)(1) of the Texas Business
Organizations Code, and (ii) prove it was a creditor of Keeth or had
any justiciable interest in his personal bank account;
(b) BBL failed to plead or prove a receivership was needed to permit the
pending arbitration: (1) to be conducted in an orderly manner; and (2)
to prevent improper interference or improper delay of the arbitration;
(c) Texas Civil Practice & Remedies Code § 64.071 requires that an
action to have a receiver appointed for a corporation with property in
this state be brought in Parker County, the county of the principal
office of Dream Creek;
(d) There is no evidence or insufficient evidence to support the
receivership under Texas Civil Practice & Remedies Code §
64.001(a)(3);
(e) There is no evidence or insufficient evidence to support the
receivership under Texas Civil Practice & Remedies Code §
64.001(a)(5); and
(f) Rules of equity do not permit appointing a receiver if statutory
requirements for such appointment are not fulfilled.
46
A. BBL failed to (i) establish that Dream Creek was in litigation and
that the action in litigation was an action by an owner or a
member of the domestic entity as required by § 11.404(a)(1) of the
Texas Business Organizations Code, and (ii) prove it was a
creditor of Keeth or had any justiciable interest in his personal
bank account.
(1) BBL’s Damages Suit Is Not An Action By A Domestic
Entity Owner Required By § 11.404(a)(1) Of The Texas
Business Organizations Code.
Chapter 11 of the Texas Business Organizations Code governs the winding
up and termination of domestic business organizations. BBL neither pleaded nor
proved that Dream Creek was winding up its business affairs or was in the process
of termination. There is no evidence in the Record on Appeal of any winding up or
termination. Therefore, as a matter of law Chapter 11 is inapplicable and does not
support the receivership.
If held to apply, Subchapter I of Chapter 11 has additional specific
requirements beyond threshold jurisdictional requirements analyzed in Issue One
(d), supra, pages 32-38. In addition to the fact that the trial court in Dallas County
did not have jurisdiction to appoint a receiver under § 11.402(a) or (b) in the first
instance, § 11.404 (a)(1) has a specific limitation that, as a matter of law, BBL did
not and can never satisfy.
Texas Business Organizations Code § 11.404 (a)(1) provides:
“Subject to Subsection (b), a court that has jurisdiction over the
property and business of a domestic entity under Section 11.402(b)
may appoint a receiver for the entity's property and business if: (1) in
47
an action by an owner or member of the domestic entity, it is
established that: (A) the entity is insolvent or in imminent danger of
insolvency; . . . (C) the actions of the governing persons of the entity
are illegal, oppressive, or fraudulent; (D) the property of the entity is
being misapplied or wasted . . . .” Tex. Bus. Orgs. Code § 11.404
(a)(1) (West 2014) (emphasis added).
The trial court’s Order Appointing Receiver states that the appointment
was proper under Texas Business Organizations Code § 11.404(a)(1)(A), (C), and
(D). (CR p. 255) However, any and all appointments of a receiver under
subsection (a)(1) of § 11.404 must, by the plain reading of the Code, comply with
the requirement that the necessary elements be established in an action brought by
an owner or member of the domestic entity. Clearly, BBL’s damage suit against
Dream Creek is not “an action by an owner or member of the domestic entity.” As
it did with respect to attempting to assert construction trust fund act claims without
standing, BBL improperly attempts to take on the mantle of an owner or member
of the entity to justify the judicial receivership.
Therefore, even if BBL submitted evidence that Dream Creek was
insolvent, or in imminent danger thereof, and Dream Creek was truly in dire
financial condition, pursuant to § 11.404(a)(1)(A), such showing is unavailing
because this is BBL’s damage suit and not an action brought by an owner or
member of Dream Creek. Similarly, even if BBL brought evidence of some illegal
action on the part of a governing person and/or misapplication or wasting of
property, BBL’s case is a damage suit filed in the face of arbitration that will not
48
support a receivership on these grounds because of the lack of any legal action by
an owner or member of a domestic entity. Accordingly, the Order Appointing
Receiver cannot be sustained on the basis of § 11.404(a) (1) (A), (C), and (D). The
trial court clearly abused its discretion in appointing the receiver on these grounds.
(2) BBL Is A Claimant, Not A Creditor, Of Dream Creek Or
Keeth.
Although the trial court’s order did not state that its appointment was
justified and proper under any section of the Texas Business Organizations Code
other than § 11.404(a), in its amended petition, BBL asserted entitlement to have a
receiver appointed pursuant to § 11.403 of the Texas Business Organizations Code.
(CR p. 638-39) The following analysis of § 11.403 of the Texas Business
Organizations Code demonstrates that the Order Appointing Receiver cannot be
sustained under this section, either. To the extent the trial court appointed the
receiver based on § 11.403, it erred and abused its discretion. For purposes of the
following analysis, it is assumed that this Court has rejected Appellants’ position
that the trial court did not have the requisite jurisdictional authority to appoint a
receiver, including our assertion that the trial court did not have jurisdiction
required by § 11.403(a) of the Texas Business Organizations Code.
The receivership in question cannot properly be based on § 11.403 of the
Texas Business Organizations Code because: (1) compliance with all other
requirements of law mandated by § 11.403(b)(3) cannot be satisfied; (2) BBL is a
49
claimant of Dream Creek, has failed to prove it is a creditor, and thereby cannot
satisfy the creditor requirement in § 11.403(a)(2); (3) the Order Appointing
Receiver imposed a judicial receivership over the entire business of Dream Creek,
well beyond concerning specific property as authorized by § 11.403; and (4) a
judicial receivership imposed pursuant to § 11.403 includes the trial court
determining the rights of the parties to the subject property or fund by § 11.403(c),
which is squarely at odds with the arbitration.
In addition to competent jurisdiction, § 11.403(b)(3) and § 11.403(a)(2)
require that BBL demonstrate standing, including that it is a creditor of Dream
Creek. Because, as a matter of law, BBL is not a creditor and has no standing to
prosecute the claims of others who actually have creditor status, the Order
Appointing Receiver cannot be sustained under § 11.403 of the Texas Business
Organizations Code. BBL’s pleading and proof supporting its motion makes it
clear that, although BBL seeks to become a judgment creditor of Dream Creek,
BBL is not a creditor. From the analysis of the Construction Trust Fund Act in
Section I.E., supra, pages 38-43, BBL has no standing under the Act to assert trust
fund violations, if any. BBL failed to prove that it has any account, debt, or other
transaction with Dream Creek wherein BBL has status as a creditor. All BBL has
demonstrated is that it has a chose in action, a claim, against Dream Creek for
assertion of breach of contract and fraud. BBL is a claimant and not a creditor.
50
Texas Business Organizations Code § 11.001(1) defines the term “claim”
applicable to Chapter 11 of the Code. A “claim” means a right to payment,
damages, or property, whether liquidated or unliquidated, accrued or contingent,
matured or unmatured. Tex. Bus. Orgs. Code § 11.001(1) (West 2014). From the
plain reading of this definition, BBL has, for purposes of a receivership under
Chapter 11 of the Texas Business Organizations Code, a claim and is a claimant.
Appointment of a receiver pursuant to § 11.403(a)(2) requires creditor status and
not claimant status.
Beyond the arguments and authorities presented on lack of construction trust
fund standing, including without limitation, that BBL cannot rely on an equitable
subrogation argument to attain standing, BBL failed to prove it is a creditor of
Dream Creek. There is no evidence in the Record on Appeal of any assignment of
any claim by any true creditor of Dream Creek in favor of BBL. That Matheus
Lumber swore out lien affidavits for debts which Dream creek owes Matheus
Lumber is but another potential chose in action and does not make BBL a creditor
of Dream Creek within the ambit of § 11.403(a)(2) of the Texas Business
Organizations Code. (CR pp. 519-22, 534-39)
The same analysis applies to BBL’s failure to plead or prove creditor status
as to Keeth, individually. BBL attempts, inter alia, to impose liability upon Keeth,
individually, for Dream Creek’s alleged breaches. Again, as with Dream Creek,
51
BBL is a claimant and not a creditor of Keeth, individually. There is no evidence
in the record that would give BBL the status of a creditor as to Keeth, individually,
nor give BBL an interest in Keeth’s personal account of the sort required to
support placing it in the hands of a receiver.
B. The Judicial Receivership Was Not Imposed To Prevent
Arbitration Disorder, Interference, Or Delay.
BBL failed to plead or prove a receivership was needed to permit the
pending arbitration: (1) to be conducted in an orderly manner; and (2) to prevent
improper interference or improper delay of the arbitration. Tex. Civ. Prac. & Rem.
Code § 171.086(a)(6). In addition to Chapter 64 of the Remedies Code and
Chapter 11 of Business Organizations Code, the trial court found that its
appointment of a receiver was justified and proper under § 171.086 of the
Remedies Code. (CR p. 255) Analysis concerning whether the trial court had
authority under § 171.086 to make the appointment made it clear that an order for a
receiver is not listed among the orders authorized by this section. However, a
potential source of authority of appointment of a receiver may be § 171.086(a)(6),
authorizing “other relief.” The plain reading of § 171.086(a)(6), however, readily
reveals that authorization of “other relief” is limited to certain specific
circumstances.
In the event this Court concludes that § 171.086(a)(6) may authorize a trial
court to appoint a receiver and impose a judicial receivership on parties in
52
arbitration, the plain reading of § 171.086(a)(6) significantly limits the
circumstances under which this section would support a receivership. This section
requires that BBL establish that a receivership, as “other relief,” was needed to
permit the pending arbitration to be conducted in an orderly manner and prevent
improper interference or improper delay. The test is conjunctive.
Note that from the plain reading of § 171.086(a)(6) the conjunction “and” is
used. Thus, in addition to preventing disorder in the arbitration, one must also
show either that improper interference or improper delay must be prevented by a
receiver. Accordingly, the burden on the party applying for a receivership
authorized by this section, BBL in this case, is to plead and prove that one of the
two combination of circumstances exists in order for this section to authorize a
receiver, if it does so at all.
BBL has neither pleaded nor proven any basis upon which § 171.086(a)(6)
would authorize or support the Order Appointing Receiver. Without such pleading
and proof, the trial court erred and abused its discretion in appointing the receiver
and in concluding that the appointment was justified and proper under §
171.086(a)(6). BBL’s original petition and its amended petition are void of any
pleading of § 171.086(a)(6) or of any facts that express or infer that there has been
disorder in the arbitration, improper interference or undue delay in the arbitration
which a receiver needs to address. Likewise, BBL’s so-called emergency motion
53
and its supplement are void of any assertion of § 171.086(a)(6). (CR pp. 493-500,
501-611)
The proof BBL submitted with its motion and supplement is void of any
proof there has been disorder in the arbitration, improper interference or undue
delay in the arbitration which a receiver needs to address. Id. Further, proof BBL
submitted with its motion and supplement is void of any proof as to how and why a
receiver would prevent either (i) disorder and interference, or (ii) disorder and
improper delay. Id. The only shred of evidence that even remotely relates to any
circumstance germane to § 171.086(a)(6) is the letter from BBL’s counsel to AAA
advising of the filing of the lawsuit and requesting that the AAA hold the
arbitration in abeyance. (CR p. 182-83) Thus, the only evidence in the record
regarding arbitration “delay” establishes that BBL sought a delay as part and parcel
of its request for a receivership. Id. BBL proved nothing about the required
element, that the order sought was purposed to prevent improper delay. BBL has it
backwards in this case. Here, BBL sought delay in the arbitration to appoint a
receiver, rather than appointing a receiver to prevent delay of the arbitration.
In determining that § 171.086(a)(6) justified its appointment of a receiver
and that the Order Appointing Receiver was proper thereunder, the trial court
wholly failed to follow guiding principles, including without limitation, the plain
reading of this section. The trial court acted without any evidence to establish the
54
legal requirements and further when the only evidence germane to the issue
established the exact opposite of the circumstance required. Thus, the trial court
erred and abused its discretion. The Order Appointing Receiver cannot stand.
C. Dallas County Is An Improper Venue To Order A Receivership
Over Dream Creek.
Subchapter E of the Chapter 64 of the Texas Civil Practice & Remedies
Code governs appointment of receivers over corporations. An action to have a
receiver appointed over a corporation with property in this state is required to be
brought in the county in which the principal office of the corporation is located.
Tex. Civ. Prac. & Rem. Code § 64.071. The principal place of business of Dream
Creek is in Parker County. The 68th District Court of Dallas County obviously
erred and abused its discretion in imposing the judicial receivership upon Dream
Creek, even if it otherwise had jurisdiction.
Although the discussion focused on Chapter 11 of the Texas Business
Organizations Code, prior counsel for Dream Creek raised the impropriety of
venue with the trial court arguing against appointment of a receiver. (RR Vol. 2 pp.
27-29)
D. BBL Has No Joint Ownership Or Interest In The Property Or
Fund.
The trial court found that the Order Appointing Receiver was just and proper
under Texas Civil Practice & Remedies Code § 64.001(a)(3). (CR p. 255) This
55
subsection provides that a court of competent jurisdiction, which the trial court was
not, may appoint a receiver in an action between partners or others jointly owning
or interested in any property or fund. BBL has failed to prove that it is “jointly
owning or interested in any property or fund.” Reviewing courts have construed
the “joint ownership or interest” to require a demonstration of unity of interest or
liability. For the same reasons that BBL has no standing under the construction
trust fund act to bring an action for alleged breach against Dream Creek, BBL
lacks a joint ownership or interest in property or fund of the sort required by
§64.001(a)(3). See Kneisley v. Intertex, Inc., 797 S.W.2d 343 (Tex. App.—
Houston [14th Dist.] 1990, no writ) (holding competing claims to real property
insufficient to fulfill joint ownership or interest requirement for receiver).
E. BBL Failed To Prove Insolvency, Dissolution, Or Forfeiture.
The trial court erroneously found that Texas Civil Practice & Remedies
Code § 64.001(a)(5) supported the receivership. (CR p. 255) This subsection
provides that a court of competent jurisdiction, which the trial court is not, may
appoint a receiver for a corporation that is insolvent, is in imminent danger of
insolvency, has been dissolved, or has forfeited its corporate rights. Tex. Civ.
Prac. & Rem. Code § 64.001(a)(5). The record is void of evidence, or any
evidence therein is clearly insufficient, upon which the trial court could properly
56
make any such findings. Further, case law indicates § 64.001(a)(5) is inapplicable
to the case at bar.
(1) There Is No Evidence of Dissolution, Forfeiture, Insolvency, Or
Imminent Insolvency Of Dream Creek.
A trial court’s evidentiary rulings are reviewed applying the abuse of
discretion standard of review. Jackson v. Van Winkle, 660 S.W.2d 807, 810 (Tex.
1983). To obtain reversal of a judgment based upon error of the trial court in
admission or exclusion of evidence, there must be a showing (1) that the trial court
did in fact commit error and (2) that the error was reasonably calculated to cause
and probably did cause rendition of an improper judgment. Tex. R. App. P. 81(b);
McCraw v. Maris, 828 S.W.2d 756, 757 (Tex. 1992). The appellate court must
review the record to make this determination. McCraw at 758.
The record contains no evidence regarding the corporate status of Dream
Creek with respect to dissolution or forfeiture. Concerning insolvency or
imminent threat thereof, the record contains no direct evidence. (RR Vol 2 pp. 6-
25) There is contrary evidence, however, including the court appointed auditor
(admittedly from his incomplete analysis (RR Vol. 4 p. 43)), that Dream Creek had
funds on hand estimated to be in the six figures, had funds after payments of
accounts and sources of cash. (RR Vol. 3 pp. 5-7; Vol. 4 pp. 15-17, 20) The record
also contains some evidence concerning Dream Creek’s financial activity which
may indirectly concern these required elements. In error, the trial court admitted
57
hearing Exhibit 1, including inter alia, bank statements. (RR Vol. 4 p. 8; 5 pp. 23,
29; Vol. 7) However, without laying the proper evidentiary foundation, such
banking records are inadmissible hearsay and cannot sustain the propriety of the
Order under § 64.001(a)(5). Tex. R. Evid. 901. Moreover, proving insolvency or
being in danger thereof requires a great degree more proof than the subject bank
statements provide. Gossett v. Hamilton, 133 S.W.2d 297, 302 (Tex. Civ. App.—
Fort Worth 1939) (insolvency must be shown by entity’s liabilities, assets, and
testimony that the entity is unable to promptly meet its obligations). The trial court
erred in overruling the hearsay objection to Exhibit 1. (RR Vol. 5 pp. 28-29)
(2) Even If Competent Evidence Exists, Case Law Opposes A
Judicial Receivership On These Facts.
Insolvency alone does not justify a receivership; there must be also some
right of action existing in favor of the applicant. Hunt v. Merchandise Mart, Inc.,
391 S.W.2d 141 (Tex. Civ. App. —Dallas 1965, writ refused n.r.e. (receivership is
necessarily ancillary to a pending principal action to establish or vindicate a right
other than the appointment of a receiver); Greenland v. Pryor, 360 S.W.2d 423
(Tex. Civ. App.—San Antonio 1962) (party cannot require a receiver to perform
functions relating to a dispute about which the appointing court is not asked to
decide); Griggs v. Brewster, 62 S.W.2d 980 (Tex. 1933) (receivership proceeding
must stand or fall with the pendency of the main suit to which it is incidental). A
receiver will be appointed only when the party seeking the appointment shows a
58
right to, or interest in, the property or fund in litigation. See Continental Homes
Co. v. Hilltown Property Owners Ass'n, Inc., 529 S.W.2d 293 (Tex. Civ. App.—
Fort Worth 1975).
Even if competent evidence is held to exist, Texas case law opposes a
judicial receivership without some right in favor of the applicant. For the same
reasons that BBL has no claims under the construction trust fund act and moreover
lacks ownership or interest in the property or fund of the sort required by §
64.001(a)(3) because BBL is not a creditor, the trial court’s appointment of a
judicial receiver was error and cannot stand.
F. Equity Cannot Support Receivership Absent Fulfilling Statutory
Requirements.
The trial court found that the Order Appointing Receiver was just and proper
under Tex. Civ. Prac. & Rem. Code § 64.001(a)(6). (CR p. 255) This subsection
provides that a court of competent jurisdiction, which the trial court was not, may
appoint a receiver if appropriate under the “rules of equity.” Tex. Civ. Prac. &
Rem. Code § 64.001(a)(6). However, where, as here, specific statutory
requirements exist, these must be fulfilled in order to support appointment of a
receiver. Reviewing courts have held that it is an abuse of discretion to appoint a
receiver merely referring to the “rules of equity” if specific statutory requirements
applicable to the appointment were not fulfilled. Mueller v. Beamalloy, Inc., 994
S.W.2d 855, 861 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (holding that an
59
additional subsection of § 64.001(a) of the Remedies Code permitting appointment
of a receiver under the rules of equity did not permit the trial court to disregard
specific requirements applicable to appointing a receiver over a corporation).
Having demonstrated that the specific statutory requirements applicable to
imposition of a receivership over Dream Creek as a domestic corporation have not
been fulfilled, the trial court abused its discretion in making the appointment under
Tex. Civ. Prac. & Rem. Code § 64.001(a)(6).
CONCLUSION
The forum selection for arbitration limited the jurisdiction of the trial court.
Nothing in the law of the arbitral forum, supporting arbitration, or substantive
contract law authorized the trial court to establish a judicial receivership over
parties in arbitration. Judicial receiverships paralleling arbitrations are not
authorized and produce problems. Chapter 11 of the Texas Business Organizations
Code contains exclusive, jurisdictional requirements over receiverships and should
control over more general receivership provisions of the Remedies Code. The
jurisdictional requirements of Chapter 11 of the Texas Business Organizations
Code were not fulfilled. The trial court had no authority to impose a judicial
receivership.
Even if the trial court had the requisite authority, it abused its discretion
because the court in Parker County is the only court permitted to appoint a receiver
60
over Dream Creek. Further, the pleading and proof did not establish the elements
necessary to sustain the order, including without limitation, the insolvency of
Dream Creek; BBL’s status as a creditor and joint interest owner, rather than a
mere claimant; or that the receivership was necessary to prevent disorder and
interference, or disorder and improper delay of the arbitration.
PRAYER
Appellants pray that this Court will reverse the Order Appointing Receiver
and remand this cause to the trial court with instructions to vacate the receivership.
Alternatively, Appellants pray that this Court will issue a writ of mandamus
ordering the trial court to vacate the Order Appointing Receiver and vacating the
receivership. Appellants pray for general and such other relief, at law or in equity,
to which they may show themselves justly entitled.
Respectfully submitted,
DECKER JONES, P.C.
Burnett Plaza, Suite 2000
801 Cherry Street, Unit No. 46
Fort Worth, Texas 76102
(817) 336-2400 (Telephone)
(817) 336-2181 (Facsimile)
By:
Daniel L. Bates
State Bar No: 01899900
dbates@deckerjones.com
61
Frank M. Newman, Jr.
State Bar No. 14970500
fnewman@deckerjones.com
Jake L. Ramsey
State Bar No. 24083705
jramsey@deckerjones.com
Molly Johnson
State Bar No. 24092590
mjohnson@deckerjones.com
ATTORNEYS FOR APPELLANTS
62
CERTIFICATE OF COMPLIANCE
On the 3rd day of August, 2015, the undersigned certifies that in compliance
with Rule 9.4(i)(2)(B) of the Texas Rules of Appellate Procedure and upon
reliance of the word count of the computer program used to prepare this document,
the foregoing Appellants’ Opening Brief contains approximately 14,668 words.
_____________________________
Daniel L. Bates
63
CERTIFICATE OF SERVICE
Pursuant to the Texas Rules of Appellate Procedure, the undersigned hereby
certifies that a true and correct copy of the foregoing Appellants’ Opening Brief
was served on counsel of record on August 3, 2015 in the matter indicated below:
Steven H. Thomas
Jennifer M. Larson
McGUIRE, CRADDOCK & STROTHER, P.C.
2501 N. Harwood, Suite 1800
Dallas, Texas 75201
sthomas@mcslaw.com
jlarson@mcslaw.com
ATTORNEYS FOR APPELLEE, BBL BUILDERS, L.P.
Via electronic serve (ECF)
Kevin Buchanan, Esq.
Matthew McDougal, Esq.
KEVIN BUCHANAN & ASSOCIATES, P.L.L.C.
900 Jackson Street, Suite 350
Dallas, TX 75202
kbuchanan@kevinbuchananlaw.com
mmcdougal@kevinbuchananlaw.com
ATTORNEYS FOR RECEIVER
Via E-mail
Honorable Martin Hoffman, District Justice
68th Judicial District Court
George L Allen Sr. Courts Building
600 Commerce St # 540
Dallas, TX 75202
TRIAL COURT JUDGE
Via First Class Mail
_____________________________
Daniel L. Bates
10971.45001/405340
64
No. 05-15-00768-CV
______________________________________________
In The COURT OF APPEALS
FIFTH DISTRICT OF TEXAS AT DALLAS
______________________________________________
DREAM CREEK ENTERPRISES, INC. and
RAMEY J. KEETH,
Appellants,
vs.
BBL BUILDERS, L.P.,
Appellee.
______________________________________________
Appeal from the 68th Judicial District Court
of Dallas County, Texas, Cause No. DC-14-13721
Honorable Martin Hoffman, Presiding Judge
______________________________________________
APPENDIX IN SUPPORT OF
APPELLANTS’ OPENING BRIEF
______________________________________________
EXHIBIT “A” - Order Appointing Receiver signed on June 1, 2015 .............. 1-6
65
•·
EXHIBIT "A"
f'0582
CAUSE NO. DC-14-13721
BBL BUILDERS, L.P., § IN THE DISTRICT COURT
§
Plaintiff, §
§
§
v. § 68th JUDICIAL DISTRICT
§
DREAM CREEK ENTERPRISES, INC., §
and RAMEY J. KEETH, §
§
Defendllnts. § DALLAS COUNTY, TEXAS
ORDER APPOINTING RECEIVER
On this date, the Court considered Plaintiff's Request for Appointment of a
Receiver. Having considered the request, the arguments of counsel, the admissible
evidence, and the relevant legal principles, the Court is of the opinion that the request
should be, and hereby is, GRANTED.
1. The Court finds that the appointment of a receiver over Dream Creek
Enterprises, Inc. ("Dream Creek") is justified and proper under TEX. C1v. PRAC. & REM.
CODE § 64.001 (a), (3), (5), and (6).
2. The appointment of a receiver over Dream Creek is also proper under
TEX. Bus. ORG.:CODE § 11.404(a)(1 )(A), (C), and (D).
3. The appointment of a receiver is justified and proper under TEX. C1v. PRAc.
& REM. CODE§ 171.086, as this matter is currently under arbitration.
4. Based on the evidence before the Court, it appears that Ramey J. Keeth is
the manager amd owner of Dream Creek.
5. The appointment of a receiver is necessary to ensure full and complete
accounting, locate and secure any trust funds, preserve and protect the assets of
ORDER APPOINTitJG RECEIVER- PAGE 1
255
1
-,
I
Dream Creek, preserve and protect the interests of creditors, and to manage its day-to-
day affairs.
6. The Court finds that Dream Creek, as well as its creditors, guarantors,
employees, and stakeholders, face a likelihood of irreparable harm if a receiver is not
appointed immediately to take control over the management and operation of Dream
Creek. This irreparable harm includes, but is not limited to, dissipation of the trust funds
received by Defendants for the sole purpose of paying "beneficiaries" of trust funds-
artisans, laborers, mechanics, contractors, subcontractors, suppliers, and materialmen.
The Court finds that such further dissipation of funds would result in irreparable harm
and that it is unlikely that creditors and guarantors would have a meaningful remedy at
law if further dissipation occurs.
7. A receiver is necessary to realize value for Dream Creek for all interested
entities.
8. Accordingly, the Court hereby appoints Albert "Tre" Black, Ill as a receiver
(hereinafter, the "Receiver''), for Dream Creek Enterprises, Inc.
9. The Court finds that Tre Black is qualified to serve as a Receiver, and
upon being sworn and a bond of $500.00 for Dream Creek being posted, shall
immediately assume the rights and responsibilities as the Receiver of Dream Creek.
Further, Plaintiff BBL is ordered to pay a bond in the amount of $1,000.00.
10. The Court orders, pursuant to the authorities cited in paragraphs 1, 2, and
3 above, that tne Receiver is vested with all powers necessary or appropriate to carry
out the Receiver's functions and duties including: (1) the power to control all property
and non-exempt assets of Dream Creek Enterprises, Inc.; (2) the power to take charge
ORDER APPOINTIJ!G RECEIVER- PAGE 2
256
2
and keep possession of all non-exempt property owned or controlled by Dream Creek;
(3) collect and ·compromise demands; (4) make transfers and payments to third parties;
(5) take actions to preserve all assets of Dream Creek, including the institution of legal
actions; and (6) perform all such other acts as necessary to preserve the assets of
Dream Creek pursuant to Texas Law.
11. The Receiver shall take charge and possession of the business and non-
exempt assets·of Dream Creek.
12. The Receiver has the authority to pay all expenses incurred by Dream
Creek in the course of business, to the extent determined necessary by Receiver or his
agents.
13. The Receiver has authority to take possession of and receive from a~l
accounts held by or for the benefit of Dream Creek Enterprises, Inc. any money on
deposit in any financial institution to the credit of Dream Creek, and the receipt of
Receiver forth~ funds will discharge such financial institutions from further responsibility
for accounting to Dream Creek. Such accounts include, but are not limited to, the
following:
• Wells Fargo account ending 6944 for Dream Creek Enterprises, Inc.
• North Texas Bank account ending 0087 for Dream Creek Enterprises,
Inc.; and
• First Financial Bank account ending 5819 for Ramey Keeth up to the first.
$200,000.00.
14. The Receiver has the authority to hire and employ servants, agents,
employees, clerks, accountants, and other professionals and to purchase merchandise,
ORDER APPOINTitfG RECEIVER- PAGE 3
257
3
inventory, materials, supplies, and services in connection with operating and conducting
the business of Dream Creek, and to pay for them at the ordinary and usual rates and
prices from the funds that may come into the Receiver's possession.
15. The Court further orders that the Receiver may negotiate for the sale or
lease of the property, or any assets thereof, and conduct all day-to-day operations of
Dream Creek.
16. The Receiver shall have the power to hire and fire employees,
consultants, and professionals for Dream Creek. The Receiver shall have the power to
negotiate with any and all creditors and claimants of Dream Creek.
17. The Receiver may, in the Receiver's discretion, seek Court approval for
major or material transactions before concluding such transactions.
18. It is ordered that all banks and other financial institutions shall cooperate
with all reasonable requests of the Receiver relating to implementation and enforcement
of this Order, including transferring funds at Receiver's discretion and producing records
related to the assets and liability of Dream Creek. The Receiver shall have the right to
have signature authority on all existing bank accounts of Dream Creek.
19. It is ordered that the Receiver is authorized to open one or more bank
accounts with financial institutions insured by an agency of the United States, deposit all
cash and other liquid assets of Dream Creek, and make all payments and
disbursements from the assets of Dream Creek held in such accounts.
20. It is further ordered that the Receiver has the sole authority to prosecute
or defend any legal actions or proceedings for Dream Creek, except for the pending
arbitration case styled case number 01-14-0000-3531, BBL Builders, LP, vs. Dream
ORDER APPOINTING RECEIVER- PAGE 4
258
4
Creek Enterprises, Inc. and Ramey J. Keeth. The Receiver has the sole authority to
initiate any proceedings pursuant to the United States Bankruptcy Code. Any such
actions in violation of this paragraph shall be null and void.
21. The Receiver and any professionals hired by Receiver shall be paid from
funds and assets of Dream Creek. The Receiver shall be compensated out of the
assets of Dream Creek on an hourly basis not to exceed $250 per hour and reimbursed
for all reasonable and necessary expenses. If Dream Creek lacks sufficient assets or
funds to timely pay the Receiver's fees and reimbursement of expenses; the Plaintiff
and Defendants shall be jointly and severally liable for such fees and expenses. The
Receiver shall. provide a copy of his bills for fees and expenses and any invoices for
fees or expenses charged by professionals or agents hired by the Receiver to all parties
every thirty (30) days. Each party shall have five (5) days in which to object to the bills
presented. If a party wishes to object to the bill(s) presented, the objection must be filed
with the Court and set for hearing at the earliest available setting within the five (5) day
period. If no objection to the Receiver's bills, or bills for professionals or agents hired by
the Receiver, are made by any counsel, party represented by counsel, or party pro se,
within the five (5) days of receipt, the Receiver is authorized to pay the bills presented
from the assets of Dream Creek. Plaintiff is ordered to pay the sum of $20,000.00 in the
form of a refundable retainer to The Receiver to bill against for all fees and expenses
pursuant to pracedure above, and subject to further order of the court.
22. Alternatively, in the event that the Receiver and any professionals hired by
Receiver are paid from funds previously tendered into the registry of the court, the
Receiver shall be compensated on an hourly basis not to exceed $250 per hour and be
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reimbursed through the funds held within registry of the court. The Receiver shall
provide a copy of his bills for fees and expenses and any invoices for fees or expenses
charged by professionals or agents hired by the Receiver to all parties every thirty (30)
days. Each party shall hav·e five (5) days in which to object to the bills presented. If a
party wishes to object to the bill(s) presented, the objection must be filed with the Court
and set for hearing at the earliest available setting within the five (5) day period. If no
objection to the Receiver's bills, or bills for professionals or agents hired by the
Receiver, are made by any counsel, party represented by counsel, or party pro se,
within the five (5) days of receipt, the Receiver is authorized to seek reimbursement
through the funds previously tendered into the registry of the court.
23. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED, that the
authority granted to the Receiver as set forth herein shall continue until further order of
the Court, and that any party may petition the Court for termination of the Receivership
upon a showing that the condition necessitating the appointment of the receiver as set
forth herein is remedied, at which time the management of the domestic entity shall be
restored to its managerial officials, along with all property, statutory, common law and
equitable rights, duties, obligations, that exist and/or existed immediately prior to entry
of this Order.
SO ORDERED.
DATED: June JY-; 2015.
HON. M RTIN HOFFMAN
DISTRI T JUDGE
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