Fela B. Olivarez v. Cristo Rey Garza ( 2021 )

NUMBER 13-20-00025-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
FELA B. OLIVAREZ, Appellant,
v.
CRISTO REY GARZA, ET AL., Appellees.
On appeal from the County Court at Law No. 5
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Tijerina
Memorandum Opinion by Justice Tijerina
Appellant and cross-appellee Fela B. Olivarez appeals the trial court’s modification
of a final judgment in a turnover proceeding awarding damages and attorney’s fees to
appellees and cross-appellants Cristo Rey Garza, Justino Garza, Jr., and Keith C.
Livesay.1 By five issues, Fela asserts the trial court erred in: (1) awarding damages in
Cristo’s favor (a) without an underlying judgment against her and (b) without evidence to
support a breach of contract claim; (2) awarding liquidated damages without hearing
evidence of actual damages; (3) awarding attorney’s fees without statutory or contractual
authority; (4) awarding attorney’s fees in the amount of $7,700 without hearing evidence
to support the award; and (5) partially denying her motion for new trial.
By four issues, appellees and cross-appellants argue the trial court erred by
“deleting the award for” post-judgment interest, court costs, appellate attorney’s fees, and
turnover relief. We affirm in part and reverse and remand in part.
I. BACKGROUND
A. Procedural History
In a prior cause, Cristo sued Sandra Arroyo in July 2013, alleging that property in
Sandra’s name belonged to him. He later filed a motion for summary judgment, and the
district court granted Cristo’s motion, which this Court affirmed. See Arroyo v. Garza,
No.13-15-00211-CV, 2015 WL 9487259 (Tex. App.—Corpus Christi–Edinburg Dec. 29,
2015, no pet.) (mem. op.). Sandra then filed a bill of review in the district court seeking to
set aside the judgment. Cristo again filed a motion for summary judgment, and on October
13, 2016, the district court granted summary judgment in Cristo’s favor. Sandra appealed.
See Arroyo v. Garza, No. 13-16-00633-CV, 2018 WL 3583789, at *1 (Tex. App.—Corpus
Christi–Edinburg July 26, 2018, pet. denied) (mem. op.).
1 We will address the parties by their first names for simplicity.
2
Meanwhile, Cristo filed an eviction proceeding in a justice of the peace court asking
that Sandra be evicted from his property. A justice of the peace entered a judgment in
Sandra’s favor, which Cristo appealed to the county court on April 26, 2017. On August
10, 2017, the county court granted summary judgment in Cristo’s favor requiring Sandra
to vacate the premises, and Sandra appealed to this Court (2017 summary judgment).
See Arroyo v. Garza, No. 13-17-00496-CV, 2018 WL 3583789 (Tex. App.—Corpus
Christi–Edinburg Aug. 8, 2018, pet. denied) (mem. op.).
While both of Sandra’s appeals were pending before us, on August 19, 2017,
Sandra, as principal, signed a supersedeas bond. As a surety, Sandra’s previous trial
counsel, Fela “covenant[ed] that [Sandra] would prosecute her appeal with effect and pay
all costs and damages which may be adjudged against her, provided the surety shall not
be liable in an amount greater than $11,000, said amount being the amount of the bond
herein.” In her affidavit of personal surety, Fela attested to the fact that she currently held
nonexempt assets that exceeded the amount of $22,000. About a year later, this Court
affirmed the district court’s October 13, 2016 summary judgment in Cristo’s favor and
dismissed Sandra’s 2017 summary judgment appeal as moot. See Arroyo, 2018 WL
3583789, at *1.
B. Demand for Payment
On August 15, 2018, after all appeals were exhausted, Cristo filed a forcible entry
and detainer lawsuit in county court against Sandra to obtain use of his property and filed
a motion to “Determine Plaintiff’s Damages and Motion to Require Sureties to Deposit
$11,000.00 into Registry of the Court.” In the motion, Cristo averred that Fela, as surety,
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swore under oath that she would pay all costs and damages which may be adjudged
against Sandra and that the amount of $11,000 was agreed to as the proper measure of
damages for rental value of the property. On October 3, 2018, the county court granted
Cristo a writ of possession for the property. On October 12, 2018, the county court issued
a permanent injunction enjoining Sandra from interfering with the property.
On March 19, 2019, Cristo filed a motion to modify the supersedeas bond to a cash
bond. On April 26, 2019, Cristo filed a second motion for writ of possession to enforce the
county court’s 2017 summary judgment while Sandra filed for bankruptcy and requested
an automatic stay of the proceedings. After the bankruptcy stay was lifted, the writ of
possession was executed on August 16, 2019.
On August 22, 2019, Cristo filed an application for turnover relief against Fela
requesting that a receiver be appointed to assist in collection of his judgment. In turn, Fela
filed a third-party petition against Sandra, claiming that Sandra is responsible to satisfy
the judgment.
Two months later, Cristo amended his application and requested a judgment
against Fela for the bond, plus interest, and reasonable attorney’s fees. Fela responded
asserting the judgment had been satisfied in its entirety upon the execution of the writ of
possession when a constable took possession of the property and turned it over to Cristo.
Therefore, Fela requested that turnover relief be denied as the judgment was against
Sandra, not Fela.
C. Turnover Hearing
On October 9, 2019, the county court held a hearing on Cristo’s amended turnover
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application. Cristo’s trial counsel, Keith and Justino, appeared and testified; Fela did not
appear. According to cross-appellants, Keith and Justino presented live testimony that:
Fela signed the supersedeas bond and conditions for her liability on it had been satisfied;
the agreed-to bond amount was to pay for the loss of rental value on the property and
was less than Cristo’s actual damages; the appointment of a receiver was necessary for
the collection of the judgment because Fela was unwilling to satisfy her legal obligations;
and attorney’s fees were reasonable.2
D. Motion to Show Cause
On October 15, 2019, the county court issued a final judgment granting the
amended application for turnover relief and appointing a receiver (final judgment). On
October 24, 2019, the receiver filed a motion to show cause, stating that he noticed Fela
for examination under oath on October 24, 2019, and Fela failed to appear. Additionally,
he alleged that Fela failed to produce documents that the trial court ordered her to
produce. The motion stated:
Given [Fela] is an officer of the Court, [Fela’s] conduct is even more
egregious and demands firm action in which the Court insists [Fela] comply
with the order and issue punitive and/or coercive measures/remedies to
force compliance. [Fela] is acting as though she is above the law and does
not have to comply with lawful orders and directives made in accordance
with law and due process.
Four days later, the county court judge recused himself from serving on the case.3 A third
judge was appointed (third court), and he granted the receiver’s motion to show cause on
November 13, 2019.
2 Testimony from this hearing is not included in the appellate record.
3 A second appointed judge also voluntarily recused himself from the case.
5
E. Show Cause and Motion or New Trial Hearing
On the same day, Fela filed a motion for new trial asserting she met all the
requirements of the Craddock test. See Craddock v. Sunshine Bus. Lines, Inc., 133
S.W.2d 124, 126 (Tex. 1939). The third court held a hearing on the motion to show cause
and whether it should grant the motion for new trial (SC hearing). At the SC hearing, the
third court stated that the issues to be resolved were: (1) was there a bond, and what are
the consequences of signing the bond under these circumstances; (2) should [Fela] be
granted a new trial; and (3) if the third court denies the motion for new trial, what should
it do regarding the show cause order?
Fela asserted she met all the Craddock factors to be granted a new trial. See id.
at 393. She explained to the third court that she did not appear at the October 9 hearing
because normally the county court does not proceed without her presence. She argued
that based on that impression, her failure to appear was not the result of conscious
indifference. Next, she orated that she had a meritorious defense because there was no
judgment against her for the county court to have granted turnover relief or the
appointment of the receiver. Lastly, she asserted that granting the new trial would not
harm Cristo. See id.Cristo argued that Fela did not meet the Craddock factors because: (1) she
voluntarily chose to eat breakfast with her husband instead of appearing; therefore, her
failure to appear was not an accident or mistake; and (2) the county court issued a final
judgment against her because she signed the supersedeas bond as a surety, and his
client was unable to profit from his property for over three years.
6
The third court questioned how the county court could award $11,000 of damages
without any evidence before it.4 Justino testified that in 2017, the parties agreed the bond
would be set at $11,000—the fair market value for over nine acres and a house. He
explained that while he argued for a higher bond amount, Fela argued for a lesser amount,
and ultimately, the parties negotiated for $11,000. Therefore, this number was not in
dispute at the SC hearing. Fela chose not to cross-examine Justino.
Following the parties’ arguments, the third court asked if the parties were ready to
proceed and present evidence if it granted a new trial “because part of filing a [motion for]
new trial is saying this will not cause delay. . . .” The parties informed the third court that
they were set only on the motion to show cause and not on whether to grant the new trial;
consequently, they needed time to prepare for the new trial. Specifically, cross-appellants
needed time to bring in their witnesses to testify, and Fela requested time to seek an
attorney to represent her if a new trial was granted.
F. Modification of Final Judgment
The third court modified the final judgment stating: “I’m just going to modify the
[final judgment.] I’m going to give [cross-appellants] your $11,000 judgment and your
attorney’s fees. I’m going to dissolve the appointment of the receiver.” See Moritz v.
Preiss, 121 S.W.3d 715, 720 (Tex. 2003) (noting that a trial court can always “vacate,
modify, correct or reform the judgment” during its plenary power). The third court prepared
its own modification order titled “Order Granting Partial Motion for New Trial” wherein it
vacated the final judgment, granted Cristo damages in the amount of $11,000, and
4 We note that Fela did not raise this issue at the SC hearing or in her motion.
7
awarded attorney’s fees in the amount of $7,700 to the attorneys directly (modified
judgment). The third court denied all other relief. Fela appealed.
G. Motion for Reconsideration
Cristo and his attorneys, now newly joined as parties to the cause, filed a motion
for reconsideration of the modified judgment. They asserted the third court erred in
“deleting [cross-appellants’] award of post judgment interest and costs of court,” and in
setting aside the receivership. The third court denied the motion, and cross-appellants
appealed.
II. DAMAGES
By her first issue, Fela argues that the third court erred when it granted Cristo
damages in the amount of $11,000 because: (1) there was no judgment against her on
the supersedeas bond, and (2) there was no evidence to support a breach of contract
claim.
A. There is a Final Judgment Against Fela—the Surety
At the SC hearing, Fela offered into evidence the October 9, 2019 hearing
transcript and the final judgment. The final judgment ordered that Cristo recover from Fela
“the sum of $18,700, post judgment interest at the rate of 5% from the date of the
judgment until satisfied, and all costs of court,” “the sum of $15,000 in attorney’s fees,”
and attorney’s fees in the event of further appeals. The judgment specifically provides:
[Fela], although having appeared in these proceedings, and being duly
notified of the hearing, failed to appear, even though the [county] Court
waited over an hour and a half for her [to] appear. The [county] Court took
judicial notice of its file [and] judicial notice of reasonable attorney’s fees.
The [county] Court then proceeded to hear the evidence presented. The
[county] Court finds that [Fela] signed as a surety for the supersedeas bond,
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and that all conditions precedent for her liability on this bond have been
satisfied . . . . Evidence was presented concerning the willingness of [Fela]
to satisfy her obligations herein. The [county] Court finds that [Fela] will not
voluntarily satisfy such obligation . . . [and] a receiver is needed to assist
with compliance.
Thus, Fela specifically provided the third court with a final judgment contrary to her
assertion that there was no judgment against her. As exhibit three, Fela also provided the
third court with the supersedeas bond—bearing her signature—in the amount of $11,000.
Therefore, we reject Fela’s argument that the third court erred in awarding damages
because there was no judgment against her.
B. Breach of Contract Claim
Regarding the lack of evidence in the breach of contract claim, by a single
sentence, Fela generally asserts “the [third] court erred when it granted a judgment
against Fela on the supersedeas bond when no evidence was provided establishing [a]
breach of contract.” Other than the assertion stated above, Fela has not presented any
substantive legal argument applying legal authorities to the facts of this case. See TEX.
R. APP. P. 38.1(i). Instead, Fela merely makes this assertion without citation to authority
and without explaining how that authority applies to the facts here. We are prohibited from
making Fela’s argument, researching the law, and then fashioning a legal argument when
Fela has failed to do so. See Canton-Carter v. Baylor Coll. of Med., 271 S.W.3d 928, 931
(Tex. App.—Houston [14th Dist.] 2008, no pet.); see also The Tex. Brandon Corp, Inc. v.
EOG Res., Inc., No. 04-19-00403-CV, 2020 WL 7232135, at *2 (Tex. App.—San Antonio
Dec. 19, 2020, pet. denied) (mem. op.) (“We may not perform an independent review of
the record and applicable law to craft these allegations into a coherent legal argument.”).
9
Accordingly, we overrule her first issue.
III. LEGAL SUFFICIENCY
By her second issue, relying on Baxter v. Gates of Normandie, No. 05-03-00245-
CV, 2004 WL 303594, at *1 (Tex. App.—Dallas Feb.18, 2004, no pet.) (mem. op.), Fela
argues that there was no evidence of actual damages, and the evidence was legally and
factually insufficient to support the award of liquidated damages. Specifically, she states
that in confirming the $11,000 award in damages, the third court improperly concluded
that it was not necessary for appellees to present evidence of actual damages in order to
recover under the supersedeas bond. Fela relies on two unpublished cases handed down
by our sister courts to support her contention that we must reverse the third court’s
modified judgment. See id; see also Lee v. Aurora Loan Services, L.L.C., No. 06-08-
00077-CV, 2009 WL 167067, at *4 (Tex. App.—Texarkana Jan. 27, 2009, no pet.) (mem.
op.) (providing that a supersedeas bond intended to indemnify a judgment creditor from
losses caused by the delay of an appeal “must be determined by proof of facts transpiring
after judgment and during the pendency of the appeal”).
Unpublished cases from our sister courts are not binding on this Court. See Dowell
v. Quiroz, 462 S.W.3d 578, 585 n.6 (Tex. App.—Corpus Christi–Edinburg 2015, no pet.)
(op. on reh’g) (“[T]he decisions of sister appellate courts may be persuasive but are not
binding on this Court.). Nonetheless, Baxter specifically concerned the non-payment of
rent in a landlord-tenant dispute, and the supersedeas bond covered the tenant’s unpaid
rentals under the parties’ lease agreement: “When, as here, the supersedeas covers such
items as rentals which accrued while the case is on appeal, the damages cannot be
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determined in an appellate court but must be determined by proof of facts transpiring after
judgment and during the pendency of the appeal.” Baxter, 2004 WL 303594, at *1.
However, this case does not concern the non-payment of rent in a landlord-tenant
dispute, and the parties are not assessing the calculation of rentals under a lease
agreement as in Baxter. See TEX. PROP. CODE ANN. § 24.007 (expressly providing that in
setting a supersedeas bond, the court shall take “into consideration the value of rents
likely to accrue during appeal, damages which may occur as a result of the stay during
appeal, and other damages or amounts as the court may deem appropriate”) (emphasis
added). Therefore, we find this authority unpersuasive.
Fela does not ask us to review the merits of the county court’s supersedeas bond.
See id. Rather, she prays that we reverse the third court’s order of damages based on
the lack of evidence before it. In this regard, we note that at the SC hearing, Justino
testified that after ongoing negotiation, the parties had previously agreed that $11,000
would cover the fair market value of the property; therefore, the county court set the bond
at this amount. Although Fela argued for a lesser amount of bond and Cristo argued for
more, “after much back and forth,” they “finally reached the decision that the liquidated
damage would be $11,000.” Fela objected: “I want to make an objection that he not say
what I said in chambers . . . I don’t want him to testify [to] things that happened three
years ago.” The third court responded, “the bond was set regardless of how it was set.”
Aside from her objection, Fela did not controvert Justino’s testimony with testimony
of her own, cross-examine Justino, or provide any evidence to refute Justino’s testimony.
Conversely, the supersedeas bond in the amount of $11,000, which Fela offered into
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evidence, bears her signature. The modified judgment reflects that the third court
considered the “evidence on file[5] and the arguments of counsel.” Because we are not
reviewing the merits of the county court’s supersedeas bond, we conclude that the
evidence presented to the third court, including Justino’s uncontroverted testimony and
the supersedeas bond bearing Fela’s signature, is sufficient to support damages in the
amount of the county court’s supersedeas bond. See id. (allowing the county court to set
the bond in an amount as the court may deem appropriate); McFadin v. Broadway
Coffeehouse, LLC, 539 S.W.3d 278, 285 (Tex. 2018) (“[T]he evidence presented at the
[original] hearing setting the bond amount was evidence of what damages the appeal
might cause [the creditor] if its judgment were not immediately enforced, not what
damages the appeal actually did cause it.”); see also Hernandez v. U.S. Bank Tr. N.A. for
LSF8 Master Participation Tr., 527 S.W.3d 307, 309 (Tex. App.—El Paso 2017, no pet.)
(“A trial judge is given broad discretion in determining the amount and type of security
required” and “[§] 24.007 of the Texas Property Code provides further guidance for the
trial court’s exercise of discretion in setting the supersedeas bond.”); Adams v. Godhania,
No. 03-20-00115-CV, 2021 WL 2604054, at * (Tex. App.—Austin June 25, 2021)
(“Contrary to appellants’ assertion, the trial court, in exercising that discretion, is not
limited to damages . . . .”); In re Levitas, No. 13-10-00345-CV, 2010 WL 2968189, at *3
(Tex. App.—Corpus Christi–Edinburg July 27, 2010, orig. proceeding) (mem. op.). We
overrule Fela’s second issue. See TEX. R. APP. P. 43.5 (“When a court of appeals affirms
5 This included prior motions, responses, orders, judgments, appeals, the supersedeas bond, the
writ of possession, supporting affidavits, and the arguments of the parties.
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the trial court judgment . . . the court of appeals must render judgment against the
sureties on the appellant’s supersedeas bond.”).
IV. WAIVER
By her third issue, Fela complains that the third court “erred in awarding attorney’s
fees without statutory or contractual authority to do so.” Cross-appellants assert that Fela
waived her attorney’s fees’ complaints.
To present a complaint for appellate review, a party generally must have presented
its complaint to the trial court by timely request, objection, or motion with sufficient
specificity to make the trial court aware of the complaint. See TEX. R. APP. P. 33.1(a).
“Complaints that attorney’s fees were not recoverable either by statute or by other basis
may be waived on appeal if no such objection was properly made in the trial court.”
Gipson-Jelks v. Gipson, 468 S.W.3d 600, 604 (Tex. App.—Houston [14th Dist.] 2015, no
pet.). Here, Fela did not object to the award of attorney’s fees at the SC hearing or
challenge the recoverability of attorney’s fees in any motion following the modified
judgment. Additionally, Fela does not explain that a complaint challenging the statutory
or contractual basis for attorney’s fees is a type of claim that cannot be waived and can
be raised for the first time on appeal. Id. (stating that preservation of error regarding
attorney’s fees requires a complaint to the trial court by timely request, objection, or
motion with sufficient specificity to bring awareness of complaint to the trial court); see
also Snowden v. Artesia Wells Ranch 1994, Ltd., No. 13-19-00157-CV, 2020 WL
2610924, at *2 (Tex. App.—Corpus Christi–Edinburg May 21, 2020, no pet.) (mem. op.)
(holding that a claim about the lack of statutory authority for attorney’s fees was waived
13
by the failure to appropriately object). Thus, this complaint has not been preserved for our
review, and we decline to address it. We overrule Fela’s third issue.
V. ATTORNEY’S FEES
In her fourth issue, Fela complains that “the evidence was legally and factually
insufficient to award [Justino] and Keith attorney’s fees in the amount of $7,700.”6 Cross-
appellants respond that the “[county] court’s award of attorney[’s] fees was premised on
judicial notice”; therefore, this Court must presume the third court took such notice.
By their third issue, cross-appellants assert that the third court erred in deleting the
award of appellate attorney’s fees without explanation. Because both Fela and cross-
appellants’ issues regarding attorney’s fees are interrelated, we address them together.7
A. Applicable Law
In the turnover statute, “[t]he judgment creditor is entitled to recover reasonable
costs, including attorney’s fees.” TEX. CIV. PRAC. & REM. CODE ANN. § 31.002(e); Feldman
v. Watts, 586 S.W.3d 591, 595 (Tex. App.—Houston [14th Dist.] 2019, no pet.). “Under
section 31.002(e)’s plain text, the trial court must award a judgment creditor reasonable
attorney’s fees.” Feldman, 586 S.W.3d at 595. “When a claimant wishes to obtain
attorney’s fees from the opposing party, the claimant must prove that the requested fees
are both reasonable and necessary.” Rohrmoos Venture v. UTSW DVA Healthcare, LLP,
6 Cross-appellants respond that Fela waived this complaint. We reject cross-appellants’ suggestion
that Fela waived this complaint, and we address the merits. See Gipson, 468 S.W.3d at 604 (providing that
in a bench trial, a party may raise a complaint regarding the sufficiency of the evidence to support attorney’s
fees for the first time on appeal).
7 As an initial matter, we note that in its judgment, the third court improperly awarded attorney’s
fees directly to counsel, rather than the litigant. See Fort Bend County v. Martin–Simon, 177 S.W.3d 479,
486 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (“A claim for attorney’s fees belongs to the litigant, not
to his attorney.”).
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578 S.W.3d 469, 484 (Tex. 2019); In re Nat’l Lloyds Ins., 532 S.W.3d 794, 809 (Tex.
2017) (stating that a party seeking recovery of attorney’s fees from the losing party “bears
the burden of establishing the fees are reasonable and necessary”). Both elements are
questions of fact to be determined by the fact finder and act as limits on the amount of
fees that a prevailing party can shift to the non-prevailing party. See Transcon. Ins. Co.
v. Crump, 330 S.W.3d 211, 231 (Tex. 2010) (observing that generally the reasonableness
of particular fees presents a fact question that the fact finder must decide, as does
necessity). The fee claimant bears the burden of providing sufficient evidence to support
the trial court’s attorney’s fee award. Rohrmoos, 578 S.W.3d at 498. This includes
evidence of (1) the particular services performed, (2) who performed those services, (3)
approximately when the services were performed, (4) the reasonable amount of time
required to perform the services, and (5) the reasonable hourly rate for each person
performing such services.8 Id.
B. Discussion
1. Sufficiency
At the conclusion of the SC hearing, on its own accord, the third court vacated the
final judgment and awarded attorney’s fees in the amount of $7,700, stating: “I have
testimony of an attorney about hours spent and time done for $7,700.” However, there is
8 Generally, in determining whether attorney’s fees are reasonable and necessary, courts consider:
(1) the time and labor required, the novelty and difficulty of the question presented, and the skill required to
properly perform the legal service; (2) the likelihood that the acceptance of employment precluded other
employment by the lawyer; (3) the fee customarily charged in the locality for similar services; (4) the amount
involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6)
the nature and length of the professional relationship with the client; (7) the experience, reputation, and
ability of the lawyer performing the services; and (8) whether the fee is fixed or contingent on results
obtained or uncertainty of collection before the legal services have been rendered. Arthur Andersen & Co.
v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997).
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no testimony about attorney’s fees, hours spent, or time done included in the record for
us to review. See Rohrmoos, 578 S.W.3d at 496 (holding that generalities such as
“testimony about an attorney’s experience, the total amount of fees, and the
reasonableness of the fees” are “not sufficient to support a fee-shifting award under the
lodestar method, which applies in fee-shifting situations”). The third court did not hold an
evidentiary hearing regarding cross-appellants’ request for attorney’s fees, and the
attorneys did not testify at the SC hearing detailing attorney’s fees. Moreover, there is no
invoice, bills, or any documents regarding attorney’s fees in the record to support the third
court’s award of reasonable or necessary attorney’s fees. See Bocquet v. Herring, 972
S.W.2d 19, 21 (Tex. 1998) (“To determine whether attorney[’s] fees are reasonable, the
trial court must consider the Arthur Andersen factors.”). The only evidence before the third
court to justify the modified judgment regarding attorney’s fees was an affidavit wherein
Keith averred that Cristo had been awarded attorney’s fees in the final judgment but was
now requesting additional attorney’s fees because of pending litigation. The affidavit
states:
As a result of [Fela’s] motion for new trial, [Cristo] was required to retain me
to prepare and file a response and this affidavit. This took a great deal of
time, not only to present the applicable law, but also because of [Fela’s]
frequent misstatements. A reasonable attorney’s fee for the preparation of
such response and affidavit is $4,000.
But “general, conclusory testimony devoid of any real substance will not support a fee
award.” Rohrmoos, 578 S.W.3d at 501.
With no evidence of attorney’s fees before us, we are unable to justify or review
the third court’s award of reasonable and necessary attorney’s fees. See Rio Grande
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Valley Gas Co. v. Lopez, 907 S.W.2d 622, 625 (Tex. App.—Corpus Christi–Edinburg,
1995 no pet.) (finding that the trial court had not abused its discretion in awarding
attorney’s fees when the evidence consisted of testimony that the amount was reasonable
and an affidavit that the amount requested was reasonable). Based on this record, we
conclude that the evidence is insufficient to support the attorney’s fees amount of $7,700.
See Rohrmoos, 578 S.W.3d at 498 (providing that a fact finder’s starting point in
calculating an attorney’s fee award is determining the reasonable hours worked multiplied
by a reasonable hourly rate). Accordingly, we sustain Fela’s third issue. See id. at 506
(reversing this Court’s judgment as to attorney’s fees because the record failed to provide
requisite details supporting that award and remanding the cause to trial court for a
redetermination of fees).
2. Appellate Attorney’s Fees
By their third issue, cross-appellants allege that appellate attorney’s fees are
recoverable under Texas Civil Practice and Remedies Code § 38.001, “[a]nd if a trial court
is required to award attorney’s fees through trial, it is required to award attorney’s fees on
appeal.” See TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(8) (setting forth that reasonable
attorney’s fees may be awarded if the claim is for an oral or written contract). However,
cross-appellants did not file a breach of contract cause of action against Fela, and they
did not request attorney’s fees under § 38.001(8). Compare id. § 31.002(e) with id.
§ 38.001(8). Therefore, cross-appellants are not entitled to appellate attorney’s fees on
this basis, and we reject this argument. See Lloyds, 532 S.W.3d at 809 (“[A] prevailing
party has no inherent right to recover attorney’s fees from the non-prevailing party unless
17
there is specific statutory or contractual authority allowing it.”).
Nonetheless, it is well-settled that where attorney’s fees are recoverable, the
award may include appellate attorney’s fees. Cessna Aircraft Co. v. Aircraft Network, LLC,
345 S.W.3d 139, 149 (Tex. App.—Dallas 2011, no pet.). However, an unconditional
award of appellate attorney’s fees is improper; the trial court must condition fees to
appellee on appellant’s unsuccessful appeal. Id.Here, cross-appellants requested reasonable attorney’s fees in their turnover
application. See TEX. CIV. PRAC. & REM. CODE ANN. § 31.002(e). The final judgment
awarded $15,000 in attorney’s fees “in the event that an appeal to the Court of Appeals
is filed” plus $8,500 in attorney’s fees “in the event that a petition for review is filed with
the Texas Supreme Court,” and $17,500 in attorney’s fees “in the event that a petition for
review is granted with the Texas Supreme Court” without regard to Cristo’s success on
appeal. Thus, the final judgment awarding prospective appellate fees was erroneous to
the extent that it was not conditioned on success on appeal or a successful petition to the
supreme court. See Cessna, 345 S.W.3d at 145; see also Henderson v. Chrisman, No.
05-14-01507-CV, 2016 WL 1702221, at *5 (Tex. App.—Dallas Apr. 27, 2016, no pet.)
(mem. op.) (providing that the trial court could not unconditionally award prospective
appellate attorney’s fees to judgment creditors in a post-judgment turnover action against
a debtor). Therefore, the third court did not err in omitting this relief. Accordingly, we
overrule cross-appellants’ third issue regarding the deletion of appellate attorney’s fees.
VI. PARTIAL DENIAL OF MOTION FOR NEW TRIAL
By her last issue, Fela argues the trial court abused its discretion when it partially
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denied her motion for new trial because she met all the Craddock factors and was entitled
to a new trial as a matter of law.
A. Standard of Review & Applicable Law
“We review a trial court’s refusal to grant a motion for new trial for abuse of
discretion.” Dolgencorp of Tex. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009). We determine
whether the trial court acted without reference to any guiding rules and principles or
whether it acted unreasonably or arbitrarily. Beaumont Bank, N.A. v. Buller, 806 S.W.2d
223, 226 (Tex. 1991). When a defaulting party moving for a new trial meets all three
elements of the Craddock test, then a trial court abuses its discretion if it fails to grant a
new trial. Dolgencorp of Tex., 288 S.W.3d at 925. A default judgment should be set aside,
and a new trial granted when the defaulting party establishes that (1) the failure to appear
was not intentional or the result of conscious indifference, but was the result of an accident
or mistake, (2) it has a meritorious defense, and (3) granting the motion will occasion no
delay or otherwise injure the plaintiff. Id.; see Craddock, 133 S.W.2d 124 at 126. When
as here, no findings of fact and conclusions of law are filed, the denial of motions to set
aside the default judgment and for new trial must be upheld on any legal theory supported
by the evidence. See Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984).
Beginning our analysis of Craddock, we first determine whether Fela proved that
her failure to appear at the turnover hearing on October 9, 2019, was not intentional or
the result of her conscious indifference. See Craddock, 133 S.W.2d at 126. In making our
determination, we turn to Fela’s actions and knowledge. See Lynch v. Lynch, 540 S.W.3d
107, 121 (Tex. App.—Houston [1st Dist.] 2017, pet. denied). The first Craddock element
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is satisfied when the defaulting party’s “factual assertions, if true, negate intentional or
consciously indifferent conduct . . . and the factual assertions are not controverted.”
Roman v. Ramirez, 573 S.W.3d 341, 352 (Tex. App.—El Paso 2019, pet. denied) (citing
Sutherland v. Spencer, 376 S.W.3d 752, 755 (Tex. 2012)).
B. Discussion
In her motion for new trial, Fela asserted that her failure to appear was a mistake
or accident because she notified Keith she was “unexpectedly running late” as it was her
birthday, and her family surprised her with breakfast. In her motion, she stated that in
county court, “we have done cases at 12:00 noon or 12:30 p.m. waiting for other counsel.
It is a custom of the Court to be courteous. [I] was deprived the opportunity to be heard
and present [my] case against [Cristo].”
In their response, cross-appellants adamantly denied that Fela requested that they
wait for her because they would have refused the request.9 Cross-appellants asserted
that Fela “maintains an attitude that courts run on her schedule” as “she appears when
she wants, and not when a hearing is set.” According to cross-appellants, there was
nothing unexpected about her delay because she deliberately chose to have breakfast
with her husband instead of complying with the trial court’s order.10 At the motion for new
9 In his affidavit, Keith stated:
First, as previously mentioned, [Fela] never told me that she was given a surprise
breakfast. Second, [Fela] never told me that she was running late. Third, [Fela] never told
me she would appear in court at 11:00 in the morning. Fourth, [Fela] never requested that
we wait for her on the hearing; had she asked, I would have refused in light of the
circumstances. Fifth, [Fela] never requested that I text her about the status of the hearing;
I have never done that in the past. Sixth, [Fela] never told me that she was on her way.
Seventh, I never told [Fela] that I would wait for her.
10 Keith continued:
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trial hearing, Fela orated to the third court, “It’s my responsibility to be here, but I relied
on the friendship of these lawyers . . . I told Mr. Keith . . . it’s my birthday. Let’s pass the
case. And he said: No. Show me the money.” Keith maintained his position that Fela was
consciously indifferent because she voluntarily chose to eat with her husband as opposed
to attend the scheduled hearing.
Here, Fela’s factual assertions were controverted, and as the factfinder, the third
court may have generally believed all, none, or part of her testimony. See Lynch, 540
S.W.3d at 122. In her brief, Fela states that she did not “demonstrate intentional or
conscious indifference. Both the trial court and opposing counsel knew of her personal
extenuating circumstances, knew Fela would be late to the hearing, and proceeded
without her anyway.” However, Fela does not direct us to legal authority that supports her
position that voluntarily enjoying a leisurely breakfast in lieu of attending a court hearing
is a personal extenuating circumstance, a mistake or accident, and not the result of
conscious indifference.
After reviewing the record, we conclude that the third court could have reasonably
determined that Fela’s acts and knowledge demonstrated conscious indifference to the
October 9, 2019 hearing and, as a result, did not meet the first Craddock element. See
Lynch, 540 S.W.3d at 121. Accordingly, the third court did not abuse its discretion by
In all my time practicing in the Rio Grande Valley, I have never seen Fela Ol[i]varez appear
in court on time, both in cases which we are opposed to each other, and in other cases in
which I am merely in the courtroom, witnessing the proceedings. Her cases are called, and
then the court’s staff will announce to the court that [Fela] has called in and said that she
is running late. Most of the local judges will usually wait for her a limited amount of time,
usually no more than a half hour or forty[-]five minutes. Usually[,] she appears by then. If
she fails to appear by that time, the court will proceed without her.
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acting unreasonably or arbitrarily when it denied Fela’s motion for a new trial. Lerma, 288
S.W.3d at 926. We overrule her last issue.
VII. TURNOVER RELIEF
By their third issue, cross-appellants argue the third court erred in omitting turnover
relief from its modified judgment.
A. Applicable Law
“The Texas turnover statute provides judgment creditors with a procedural device
to assist them in satisfying their judgment debts.” Alexander Dubose Jefferson &
Townsend LLP v. Chevron Phillips Chem. Co., 540 S.W.3d 577, 581 (Tex. 2018). A
turnover proceeding is “purely procedural in nature” and is limited in scope. Kothmann v.
Cook, 113 S.W.3d 471, 475 (Tex. App.—Amarillo 2003, no pet.). To obtain relief under
the turnover statute, a judgment creditor must prove: (1) the judgment debtor owns
property, including present or future rights to property; (2) the property is not exempt from
attachment, execution, or seizure; and (3) the property “cannot readily be attached or
levied on or by ordinary legal process.” TEX. CIV. PRAC. & REM CODE ANN. § 31.002; Black
v. Shor, 443 S.W.3d 170, 176 (Tex. App.—Corpus Christi–Edinburg 2013, pet. denied).
“Upon finding that the elements of [§] 31.002(a) are satisfied, a trial court has discretion
to issue a range of remedies, including . . . appointing a receiver with the authority to take
possession of the nonexempt property, sell it, and pay the proceeds to the judgment
creditor to the extent required to satisfy the judgment.” Black, 443 S.W.3d at 175.
B. Discussion
Here, the original court held an evidentiary hearing on turnover relief and appointed
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a receiver. The receiver subsequently filed a motion to show cause asserting that Fela
failed to comply with the final judgment, did not appear for examination under oath, and
refused to communicate with the receiver. After the SC hearing, the third court vacated
the original court’s final judgment granting turnover relief, and it dissolved the appointment
of a receiver in a separate order.
At the SC hearing, Fela insisted there was no judgment against her. However, the
county court issued a final judgment against Fela in the amount of $11,000 plus attorney’s
fees.
Regarding the appointment of the receiver, the third court stated:
I absolutely cannot understand how you get a receiver on the day that you
get a judgment. I don’t think that’s the purpose of the Practice and
Remedies Code. This is not a situation where these guys are in business
together and I need to appoint a receiver to go to work on this case. And I
just think it’s absolutely ludicrous. I think the first thing you do is get a
judgment against her, and then find out if she is going to appeal. And then
after 30 days have gone by and the judgment is final and there is not an
appeal, then I think it might be appropriate to begin the process of collecting
the judgment. And if you can’t get the judgment collected, then you say:
Judge, we can’t get it worked out. We need special help. That’s what
receivers do. I’ve been a receiver and it is usually a complex, difficult,
complicated case. This is a money judgment that might be for either
$11,000 or $17,000.
However, § 31.002 contains no such requirement; there is no thirty-day waiting period for
a judgment to become final or to “find out if [the surety] is going to appeal.” See TEX. CIV.
PRAC. & REM. CODE ANN. 31.002(e) (“The court may . . . appoint a receiver with authority
to take possession of the nonexempt property, sell it, and pay the proceeds to the
judgment creditor to the extent required to satisfy the judgment.”); see also Plaza Court,
Ltd. v. West, 879 S.W.2d 271, 276 (Tex. App.—Houston [14th Dist.] 1994, no writ.)
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(explaining that the turnover statute does not provide for notice or a hearing to be afforded
a judgment debtor in a turnover proceeding). Therefore, the third court should not have
eradicated turnover relief on this basis. See Black, 443 S.W.3d at 176 (“The only limit on
a trial court’s authority to enforce its judgment is that enforcement orders must not be
inconsistent with the original judgment and must not constitute a “‘material change in
substantial adjudicated portions of the judgment.’”).
The record demonstrates that Cristo was unable to enjoy his property for over three
years. Fela, as the surety, refused to comply with the final judgment and the trial court’s
directives: she did not appear at the final judgment hearing, she did not comply with the
final judgment, and she did not communicate with the receiver. Fela did not provide any
testimony or evidence to refute this. Thus, we conclude that the third court abused its
discretion when it eliminated the turnover relief. See id. at 175 (“A turnover order is proper
if the conditions of the statute are met.”); see also Buller, 806 S.W.2d at 226 (“In the
context of turnover orders, it has been held that a trial court’s issuance of a turnover order,
even if predicated on an erroneous conclusion of law, will not be reversed for abuse of
discretion if the judgment is sustainable for any reason.”). We sustain cross-appellants’
third issue.
VIII. POST-JUDGMENT INTEREST & COSTS
By their first and second issues, cross-appellants assert that the final judgment
awarded post-judgment interest and costs to Cristo, but the third court refused to award
the same, and “such deletion constitutes error.” Fela responds that the third court did not
err in vacating post-judgment interest and costs because the county court erred in
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granting judgment on the bond in the first place.
Pursuant to the turnover statute, “[t]he judgment creditor is entitled to recover
reasonable costs, including attorney’s fees.” TEX. CIV. PRAC. & REM. CODE ANN.
§ 31.002(e). “Postjudgment interest is a creation of statute to which appellant is entitled
whether or not specifically awarded in the judgment.” El Universal, Compania Periodistica
Nacional, S.A. de C.V. v. Phoenician Imports, 802 S.W.2d 799, 804 (Tex. App.—Corpus
Christi–Edinburg 1990, writ denied) (citing Cranshaw v. Swenson, 611 S.W.2d 886, 892
(Tex. Civ. App.—Austin 1980, writ ref’d n.r.e.)).
As a judgment creditor who obtained turnover relief in this case, Cristo was
“entitled” to recover his reasonable costs. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 31.002(e); Ventling v. Johnson, 466 S.W.3d 143, 149 (“Prejudgment interest and
postjudgment interest compensate a judgment creditor for the lost use of money due as
damages.”); Great Global Assurance Co. v. Keltex Props., Inc., 904 S.W.2d 771, 776
(Tex. App.—Corpus Christi–Edinburg 1995, no writ) (providing that recovery of
reasonable costs and attorney’s fees are mandatory for a judgment creditor who obtains
turnover relief under § 31.002). Moreover, Cristo is entitled to postjudgment interest. See
El Universal, Compania Periodistica Nacional, S.A. de C.V., 802 S.W.2d at 804.
Accordingly, we sustain cross-appellants’ first and second issues as they relate to the
third court’s failure to award costs and post-judgment interests. See TEX. CIV. PRAC. &
REM. CODE. ANN. § 31.002(e).
IX. CONCLUSION
We reverse in part the judgment regarding the award of attorney’s fees, turnover
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relief, post-judgment interests, and costs pursuant to § 31.002(e) and remand for
proceedings consistent with this memorandum opinion. We affirm the remainder of the
judgment.
JAIME TIJERINA
Justice
Delivered and filed on the
18th day of November, 2021.
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