Carol Yancey v. SLJ Company, LLC ( 2022 )

Affirmed and Opinion Filed December 7, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00404-CV
CAROL YANCEY, Appellant
V.
SLJ COMPANY, LLC, Appellee
On Appeal from the 101st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-19-04449
MEMORANDUM OPINION
Before Justices Schenck, Molberg, and Pedersen, III
Opinion by Justice Pedersen, III
This is an appeal from the trial court’s April 30, 2021 Order Appointing
Receiver (the Order). Appellant Carol Yancey challenges the Order in five appellate
issues, contending that the trial court abused its discretion by (1) appointing a
receiver under section 64.001 of the Texas Civil Practice and Remedies Code, (2)
appointing a receiver for a natural person, (3) appointing a receiver to take
possession of a judgment debtor’s exempt assets, (4) appointing a receiver without
evidence of the existence of assets not exempt from execution, and (5) appointing a
receiver without evidence of the existence of assets not readily subject to levy or
attachment. We affirm the trial court’s Order.
Background
Yancey acknowledges that she signed a guarantee for a commercial lease in
2011. Appellee SLJ Company, LLC (SLJ) was the landlord to whom rent was due
under that lease; the tenant was Yancey Energy L.L.C. The guarantee states that
Yancey is “the owner and holder of a specific portion of the membership interests in
Tenant” and that SLJ would not have entered into the lease without this “full and
unconditional” guarantee by Yancey. As part of the guarantee process, Yancey gave
SLJ a Personal Financial Statement dated June 15, 2010. That statement represented
that Yancey’s net worth was $3,416,580, which included $1,013,002 “cash on hand
and in banks,” and an additional $716,214 in “savings accounts.” In 2019, when the
then-tenant’s rent payments were in arrears, SLJ sued Yancey and obtained a default
judgment against her in the amount of $210,096.70, plus interest and attorney’s fees.
Yancey does not challenge either her liability under the guarantee or the default
judgment process. The judgment remains unpaid.
In response to post-judgment discovery, which has included document
production and Yancey’s deposition testimony, SLJ learned that Yancey is the
trustee of the Yancey Family Trust (the Trust). The Trust was created by the will of
Yancey’s husband, who died on February 11, 2010. The Trust is a spendthrift trust,
and its beneficiaries are Yancey and her adult son. At her 2019 deposition, Yancey
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estimated that the corpus of the Trust was approximately $1 million. She testified
she is responsible for investing the funds held in the Trust and that she withdraws
funds from the Trust as they are needed. A limited number of tax returns for the
Trust indicated that distributions from the Trust between 2013 and 2018 were
approximately equal to the income claimed by the Trust.1
SLJ has also been able to identify certain transactions made by Yancey since
she signed the Personal Financial Statement and the guarantee:
 In May 2010, after her husband’s death, Yancey entered into an Asset
Purchase Agreement, which sold the assets of her husband’s business
for $35,000.2
 In August 2013, Yancey sold her Dallas residence for $590,000; she
paid the remaining mortgage balance of $201,546 to Bank of America
and paid miscellaneous amounts attendant to the sale.3 Her net gain
from the transaction was $353,024.31. At her deposition, Yancey
testified that she used $60,000 from that amount for a down payment
on her new home and put the rest of the funds into the Trust account.
 The Yanceys also owned a second home in Maine, which they
purchased as joint tenants in May 2008. After her husband died,
Yancey—as surviving joint tenant—conveyed the property first to an
entity named The Caroline Marie Yancey Trust (with herself as trustee)
and subsequently to the Trust (again, with herself as trustee).
1
At the time of the hearing on the motion for a receiver, Yancey had produced the Trust’s tax returns
for 2013 through 2018. Those returns showed distributions of approximately $280,000. Returns were not
produced for the years 2010 through 2012 or 2019.
2
The sales agreement also provided for Yancey to receive income from percentages of revenue earned
from ongoing—and some future—contracts; the agreement excluded royalty and patent assets, which
Yancey retained.
3
In her June 2010 Personal Financial Statement, Yancey had listed the present market value of the
Dallas property at $776,000; she stated that the balance owed to Bank of America on that date was only
$159,434.
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Documents produced by Yancey represent that the Yanceys purchased
the Maine property for $814,600 and the Trust sold it in October 2012
for a total of $776,000. Yancey testified at her deposition that she
incurred a loss on this sale; as trustee of the Trust, she likewise
represented to the Maine Revenue Services that she was incurring a loss
of the sale.4
The only evidence we find in our record of personal funds held by Yancey is
found in her deposition. When asked what she and her husband had in savings or
checking accounts when he passed away, Yancey responded that the night before
her husband died, he deposited $45,000 in their checking account, which she
believed was an inheritance from his mother. As to savings, she replied only that “I
don’t think we had much.” And as to current income—other than withdrawals from
the Trust—Yancey testified that she receives $1,911 monthly from Social Security
and Medicaid. Her monthly house payment is approximately $600. She testified she
lives “very frugally”; her attorney characterized her Trust withdrawals as “modest
amounts to cover Ms. Yancey’s living expenses.”
SLJ first moved for appointment of a receiver in this case in February 2020.
That motion was denied. SLJ moved a second time for appointment of a receiver in
November 2020. A hearing was held in January 2021, and we have a record of the
proceeding. Counsel for SLJ pointed to the multi-million dollar loss of assets by
Yancey since the time of her Personal Financial Statement. He argued that SLJ was
4
In her June 2010 Personal Financial Statement, Yancey had listed the present market value of the
Maine property at $1,100,000. She represented the original purchase price as $604,700 and stated that the
balance owed on mortgages for the property on that date was $592,221.
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unable to determine, based on the post-judgment discovery it had received, where
all of those assets had gone, and he contended that appointment of a receiver was the
only way to determine whether Yancey in fact owned assets that could satisfy its
judgment. Counsel pointed to evidence, based on the transactions discussed above,
that Yancey had in fact possessed significant amounts of cash at different times and
that at least some of that cash had been made property of the Trust. Counsel for
Yancey argued that “this is not a receivership case. This is a case where the Plaintiff
has a big judgment. They’re disappointed that they can’t collect it from Ms. Yancey
because she has nonexistent assets.”
The trial court granted SLJ’s motion and named Kevin Buchanan as the
receiver. This appeal followed.
Appointment of the Receiver
A judgment creditor is entitled to aid from the court to obtain satisfaction on
the judgment; the court can help the creditor reach property of the debtor that is not
exempt from attachment, execution, or seizure for the satisfaction of liabilities. TEX.
CIV. PRAC. & REM. CODE ANN. § 31.002(a). To that end, the court may “appoint 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.” Id. § 31.002(b)(3). We review the trial court’s appointment of a receiver
for an abuse of discretion. Spiritas v. Davidoff, 459 S.W.3d 224, 231 (Tex. App.—
Dallas 2015, no pet.).
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The Applicable Statute
In her first issue, Yancey states that it was an abuse of discretion to appoint a
receiver under section 64.001(a) of the Texas Civil Practice and Remedies Code
because SLJ is not a secured creditor. Yancey is correct (a) that there is no evidence
SLJ is a secured creditor, and (b) that section 64.001(a) provides for appointment of
a receiver only when the creditor is secured. See Jay & VMK, Corp. v. Lopez, 572
S.W.3d 698, 704 (Tex. App.—Houston [14th Dist.] 2019, no pet.). However, there
is no indication that SLJ ever relied upon section 64.001 for appointment of the
receiver. We find no citation to section 64.001 anywhere in SLJ’s argument for such
an appointment, either in the trial court or on appeal. Nor does the trial court’s Order
purport to rely upon that section.
We conclude Yancey’s first argument has no relevance to our review of this
case. Accordingly, we discern no abuse of discretion by the trial court on this ground,
and we overrule Yancey’s first issue.
The Object of the Receivership
In her second issue, Yancey complains that the trial court ordered “a receiver
of Ms. Yancey’s person.” She argues that Texas law does not support appointment
of a receiver of a natural person. The Order states that Mr. Buchanon “be and is
appointed as receiver for Caroline Marie Yancey.” We disagree that the Order
specifically grants the receiver authority over Yancey’s person. However, the Order
does not specifically grant the receiver authority over Yancey’s estate either. We
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construe an ambiguous order in light of the motion on which it was granted. Hahn
v. Sw. Double D Ranch, LP, No. 05-16-00111-CV, 2017 WL 1832505, at *2 (Tex.
App.—Dallas May 8, 2017, no pet.) (mem. op.) (citing Lone Star Cement Corp. v.
Fair, 467 S.W.2d 402, 404 (Tex. 1971)). It is undisputed that SLJ’s motion for
appointment of a receiver asked the trial court specifically “[to] appoint a Receiver
for the estate of Caroline Marie Yancey.” No argument either in the parties’ briefing
or during the hearing on the motion alluded to a receivership of Yancey’s person.
By granting SLJ’s motion, it is apparent that the trial court intended to appoint a
receiver over the estate of appellant, which is unquestionably within the trial court’s
discretion. See CIV. PRAC. & REM. § 31.002(b)(3).
We conclude the trial court did not abuse its discretion by appointing a
receiver over Yancey’s estate. We overrule appellant’s second issue.
The Assets Subject to the Receiver’s Authority
In her third issue, appellant contends that the Order exceeds the trial court’s
authority because it does not limit the receiver’s authority to non-exempt property.
As we discussed above, section 31.002 provides that a judgment creditor is entitled
to assistance from the court to reach property from the debtor “that is not exempt
from attachment, execution, or seizure for the satisfaction of liabilities.” Id.
§ 31.002(a). A trial court may authorize a receiver to take possession of “the
nonexempt property” of the judgment debtor.” Id. § 31.002(b)(3). We interpret the
trial court’s Order to invest the receiver in this case only with authority that is
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compliant with section 31.002. See Gutman v. De Giulio, No. 05-20-00735-CV,
2022 WL 574968, at *7 (Tex. App.—Dallas Feb. 25, 2022, no pet.) (mem. op.) (“By
definition, the Receiver’s authority extends only to non-exempt property.”). We
conclude the trial court was not required to identify the property subject to the
receiver’s authority. If the receiver were to attempt to take control of exempt
property, the judgment debtor could always seek relief from the trial court that
appointed the receiver. See, e.g., id., at *3 (“A court that appoints a receiver to assist
with enforcement thus retains ‘continuing jurisdiction and control’ over
the receiver and receivership property until concluding the proceeding.”). There is
no such complaint before us.
The receiver’s authority in this case is limited by statute; we conclude that the
trial court did not abuse its discretion when it did not specifically set forth those
statutory limits in its Order. We overrule Yancey’s third issue.
Evidence of Ownership of Exempt Assets
In her fourth issue, Yancey argues that the trial court abused its discretion by
ordering a receivership because there was no evidence that Yancey owned non-
exempt assets. She contends that evidence that she once had cash proceeds from any
of the transactions discussed above does not prove that she currently has that amount
of cash on hand. Yancey relies on the statutory protection for spendthrift trusts,
arguing that the Trust accounts are not subject to execution for her debts. See Burns
v. Miller, Hiersche, Martens & Hayward, P.C., 948 S.W.2d 317, 326 (Tex. App.—
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Dallas 1997, writ denied). Burns states that: “Spendthrift trust assets while in the
hands of the trustees, before being distributed, are exempt from attachment,
execution, garnishment, or seizure, and therefore, are not subject to turnover.” Id.(citing TEX. TRUST CODE ANN. § 112.035; CIV. PRAC. & REM. § 31.002(a)(2)). Stated
differently, “Neither the corpus, the accrued income which has not been paid to the
beneficiary or the future income to be paid to a beneficiary of a spendthrift trust are
subject to the claims of the creditors of the beneficiary while those amounts are in
the hands of the trustee.” In re BancorpSouth Bank, No. 05-14-00294-CV, 2014 WL
1477746, at *2 (Tex. App.—Dallas Apr. 14, 2014, no pet.) (mem. op.).
SLJ contends that Yancey has improperly attempted to shelter her personal
funds from creditors by placing those funds within the Trust or otherwise hiding her
assets. Yancey has conceded that she placed some proceeds from sale of her Dallas
residence in the Trust’s account. And documents indicate that any funds received
from the sale of the Maine property were received in the name of the Trust. But
Yancey argues that she has, over time, withdrawn more money from the Trust than
the evidence shows she deposited in its accounts. We agree with her that if she
comingled her own money with trust funds, we will presume that her own funds
were expended first. See Batmanis v. Batmanis, 600 S.W.2d 887, 890 (Tex. Civ.
App.—Houston [14th Dist.] 1980, writ ref’d n.r.e.).
We cannot, however, assume that the transactions pieced together by SLJ—
which raise accounting questions based upon Yancey’s own records—necessarily
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represent the entire universe of transactions made by Yancey that could implicate
her personal funds and Trust funds. SLJ has identified assets Yancey represented
that she owned in 2010, assets that purportedly calculated her net worth at more than
$3.4 million. SLJ has identified significant transactions—sale of two residential
properties and of a business—that resulted in personal funds to Yancey. But Yancey
asserts that “the truth was and is that Ms. Yancey has no non-exempt assets.” If
indeed those various funds that are or were in Yancey’s possession are exempt from
a receiver’s authority, it is her burden to prove that is true. We have made the parties’
burdens in this regard clear: the judgment creditor bears the burden of tracing assets
to the judgment debtor, but it is the judgment debtor’s burden to show that those
assets are exempt from execution. In re C.H.C., 290 S.W.3d 929, 931 (Tex. App.—
Dallas 2009, no pet.). Moreover, it is not sufficient for the judgment debtor to assert
that the funds have been spent without giving an accounting of the expenditures. See
Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 227 (Tex. 1991) (“All unaccounted
for cash is presumed to be in the possession of the debtor; simply asserting ‘I spent
it’ is unacceptable.”).
We conclude that SLJ sufficiently identified personal funds in the possession
of Yancey and offered evidence that at least some of those funds found their way
into Trust accounts. We conclude further that the trial court did not abuse its
discretion in appointing a receiver to attempt to identify amounts within those or
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other personal funds that may be available to satisfy SLJ’s judgment. We overrule
Yancey’s fourth issue.
Assets Not Readily Subject to Levy or Attachment
The entirety of Yancey’s fifth issue is composed of this single sentence:
“When there is no evidence of non-exempt assets it follows that there is no evidence
of non-exempt assets that are not readily subject to levy or attachment.” We have
held that bare assertions of error, without argument or authority, waive error. Teter
v. Comm’n For Lawyer Discipline, 261 S.W.3d 796, 799 (Tex. App.—Dallas 2008,
no pet.). If an appellant fails to brief a complaint adequately, she waives that issue
on appeal. Id.Moreover, we have already concluded that SLJ identified apparently non-
exempt assets sufficiently to trigger Yancey’s burden to prove the assets are exempt.
We overrule Yancey’s fifth issue.
Conclusion
We affirm the trial court’s Order.
/Bill Pedersen, III//
210404f.u05 BILL PEDERSEN, III
Do Not Publish JUSTICE
TEX. R. APP. P. 47
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CAROL YANCEY, Appellant On Appeal from the 101st Judicial
District Court, Dallas County, Texas
No. 05-21-00404-CV V. Trial Court Cause No. DC-19-04449.
Opinion delivered by Justice
SLJ COMPANY, LLC, Appellee Pedersen, III. Justices Schenck and
Molberg participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee SLJ Company, LLC recover its costs of this
appeal from appellant Carol Yancey.
Judgment entered this 7th day of December, 2022.
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