Julie Fischer v. Sam Ramsey, Nancy Ramsey, Kurt Ronacher and Melissa Ronacher

Opinion issued January 7, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00743-CV
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JULIE FISCHER, Appellant
V.
SAM RAMSEY, NANCY RAMSEY, KURT RONACHER,
AND MELISSA RONACHER, Appellees
On Appeal from the 234th District Court
Harris County, Texas
Trial Court Case No. 2007-63130
MEMORANDUM OPINION
Appellant, Julie Fischer, challenges the trial court’s denial of her motion to
vacate its order authorizing a receiver to sell real property owned by her and her
husband, John Fischer,1 to satisfy a judgment rendered against them in favor of
appellees, Sam Ramsey, Nancy Ramsey, Kurt Ronacher, and Melissa Ronacher, in
appellees’ suit against them for breach of contract and fraud in the sale of a business.
In her sole issue, Fischer contends that the trial court erred in “denying,” for lack of
jurisdiction, her motion to vacate.
We dismiss the appeal for lack of jurisdiction.
Background
In her “Motion to Vacate Order Granting Receiver’s Motion for Consent to
Sell [her] Homestead Property” (“motion to vacate”), Fischer alleged that on July
19, 2013, the trial court, after a jury trial, entered a final judgment awarding
appellees actual damages against her and her husband, jointly and severally, in the
amount of $232,791.08. On May 2, 2014, David A. Fettner, the court-appointed
receiver (“receiver”), filed a “Motion for Consent to Sell Property” to satisfy the
judgment. The receiver sought permission from the trial court to sell the Fischers’
real property, identified as “lot 8” on Norchester Village Drive in Houston. On May
12, 2014, after a hearing at which the Fischers did not appear, the trial court found
that lot 8 constituted their non-homestead, non-exempt property. And it issued an
“Order on Receiver’s Motion for Consent to Sell Property” (“consent order”)
granting the receiver “ownership and possession” of lot 8 and authorizing its sale.
1
Not a party to this appeal.
2
Fischer argued that the trial court erred in authorizing the receiver to sell lot 8
because it is “part of [her] homestead” and exempt from seizure to satisfy appellees’
judgment against her and her husband.2 She asserted that her homestead consists of
three contiguous lots, comprising a total of 0.9 acres. Fischer’s residence is located
on lot 13, and lots 8 and 12 are appurtenant and serve as her backyard. She noted
that a landowner may assert a homestead exemption on lots in addition to the one on
which a dwelling is situated, and an urban homestead, such as hers, may consist of
up to ten acres of land and “be in one or more contiguous lots.”3 Further, “a party
cannot be required to pay unsecured creditors,” as are appellees, “from homestead
proceeds.” To her motion, Fischer attached a subdivision plat and statements from
the Harris County Appraisal District and Harris County Tax Assessor-Collector,
noting a “Partial Residential Homestead” exemption on lot 8.
In his response to Fischer’s motion to vacate, the receiver argued that the trial
court lacked jurisdiction to vacate its May 12, 2014 consent order because Fischer
did not challenge the order until July 10, 2014, almost sixty days after the trial court’s
plenary power had expired. And Fischer “admits that she received the motion” for
consent, which was sent to her via certified and first class mail. The receiver also
2
See TEX. CONST. art. XVI, § 50(a); TEX. PROP. CODE ANN. § 41.002(a) (Vernon
2014).
3
See TEX. PROP. CODE ANN. § 41.002(a).
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noted that Fischer did not challenge the trial court’s original “Order Requiring
Turnover and Appointing [a] Receiver,” despite notice.
In her brief in support of her motion to vacate, Fischer argued that the trial
court did not lack jurisdiction because it maintained “inherent power (as
distinguished from plenary power . . .) to enforce its judgments for an indefinite
period of time.”
On August 7, 2014, the trial court “denied” Fischer’s motion to vacate its
consent order, concluding that it was “without jurisdiction” because Fischer’s
“attempt to vacate” the order was “untimely.” On September 6, 2014, Fischer
appealed the trial court’s August 7, 2014 order denying her motion to vacate. Six
days later, on September 12, 2014, the receiver, having executed a contract with a
buyer for lot 8, asked the trial court to approve and confirm the sale and approve a
distribution of proceeds.
Jurisdiction
As a threshold matter, the receiver argues that we lack jurisdiction to hear this
appeal because Fischer “failed to timely appeal” the trial court’s consent order,
which “truly forms the basis of her appeal.”
We consider as a matter of law whether we have jurisdiction over an appeal.
See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). Generally,
appeals may be taken only from final judgments. Lehmann v. Har-Con Corp., 39
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S.W.3d 191, 195 (Tex. 2001). Interlocutory orders may be appealed only if
permitted by statute. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex.
2001); see TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a) (Vernon Supp. 2015)
(authorizing interlocutory appeals). To invoke an appellate court’s jurisdiction over
an appealable order, a timely notice of appeal must be filed. See TEX. R. APP. P.
25.1, 26.1.
“A judgment is final for purposes of appeal if it disposes of all pending parties
and claims in the record.” Lehmann, 39 S.W.3d at 195. However, certain post-
judgment orders, such as turnover orders and orders that resolve certain discrete
matters in receivership proceedings, may be final for purposes of appeal, even if
these orders do not dispose of all pending parties and claims. See Burns v. Miller,
Hiersche, Martens & Hayward, P.C., 909 S.W.2d 505, 506 (Tex. 1995) (turnover
order final and appealable); Huston v. Fed. Deposit Ins. Corp., 800 S.W.2d 845, 848
(Tex. 1990) (orders rendered during receivership appealable); London v. London,
349 S.W.3d 672, 674 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (orders
resolving “discrete issues in connection with any receivership are appealable”).
A “turnover” order is a statutory procedural device through which judgment
creditors may reach the assets of a judgment debtor that are otherwise difficult to
attach or levy by ordinary legal process. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 31.002 (Vernon 2015) (the “turnover statute”); Beaumont Bank, N.A. v. Buller, 806
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S.W.2d 223, 224 (Tex. 1991). A turnover order “requires the debtor to bring to the
[c]ourt all documents or property used to satisfy a judgment” and thereby places the
“burden of production” on the debtor rather than the on a “creditor attempting to
satisfy his judgment.” Buller, 806 S.W.2d at 226. It is this aspect of a turnover
order, i.e., that it acts “in the nature of a mandatory injunction,” that makes it
appealable. Kennedy v. Hudnall, 249 S.W.3d 520, 524 (Tex. App.—Texarkana
2008, no pet.); see Bahar v. Lyon Fin. Servs., Inc., 330 S.W.3d 379, 386 (Tex.
App.—Austin 2010, pet. denied) (“[I]t is the ability of the turnover order to be read
to act as a mandatory injunction as to the judgment debtor or transferee that allows
courts to deem it so.”). “[A] turnover order is a final, appealable judgment.” Burns,
909 S.W.2d at 506. And a trial court may render a number of turnover orders, all of
which may be final and appealable if they are, in effect, mandatory injunctions.
Bahar, 330 S.W.3d at 387. “The finality of a judgment or order is controlled by its
substance, not its label or form.” Mindis Metals, Inc. v. Oilfield Motor & Control,
Inc., 132 S.W.3d 477, 482 (Tex. App.—Houston [1st Dist.] 2004, pet. denied).
Here, the record shows that the trial court, in its original “Order Requiring
Turnover and Appointing a Receiver,” appointed the receiver and authorized him to
“take possession of all non-exempt property.” And it ordered Fischer to deliver to
the receiver certain documents and records regarding her assets. It is undisputed that
she did not appeal this order. See TEX. CIV. PRAC. & REM. CODE ANN.
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§ 51.014(a)(1), (2) (authorizing appeal from interlocutory order “appoint[ing] a
receiver” or “overrul[ing] a motion to vacate an order that appoints a receiver”);
Bahar, 330 S.W.3d at 387; Kennedy, 249 S.W.3d at 524 (appeal may be taken from
turnover order acting as mandatory injunction).
The trial court’s turnover and receivership order also provides that “[a]ll real
property sales must be individually ordered, after notice and opportunity for
hearing.” And, in its subsequent consent order, the trial court concluded that lot 8
constituted Fischer’s non-homestead, non-exempt property. And it granted the
receiver “ownership and possession” of lot 8 and authorized him to enter into a sales
contract “at a price [he] deem[ed] reasonable.” Because the trial court’s consent
order constitutes a direction or authorization to the receiver, but does not direct
Fischer to take any action, it cannot be read as an injunctive order and, thus, does
not fall under the exception for turnover orders. See Art Inst. of Chicago v. Integral
Hedging, L.P., 129 S.W.3d 564, 570 (Tex. App.—Dallas 2003, no pet.); see also
Kennedy, 249 S.W.3d at 524 (order directing sheriff to take “affirmative action” to
“seize and sell the property,” but not ordering “anything collected or turned over”
by judgment debtor, not mandatory injunction and, therefore, “not a turnover
order”).
However, in Huston v. F.D.I.C., the Texas Supreme Court concluded that “a
trial court’s order that resolves a discrete issue in connection with any receivership
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has the same force and effect as any other final adjudication of a court, and thus, is
appealable.” 800 S.W.2d 845, 847 (Tex. 1990) (analogizing to probate orders).
Subsequently, in Crowson v. Wakeman, the supreme court modified its test as
follows:
If there is an express statute, such as the one for the complete heirship
judgment, declaring the phase of the probate proceedings to be final and
appealable, that statute controls. Otherwise, if there is a proceeding of
which the order in question may logically be considered a part, but one
or more pleadings also part of that proceeding raise issues or parties not
disposed of, then the probate order is interlocutory.
897 S.W.2d 779, 783 (Tex. 1995); see also De Ayala v. Mackie, 193 S.W.3d 575,
578 (Tex. 2006) (noting Crowson modified Hutson). Under this analysis, in the
absence of a statute specifically declaring an order at the end of a particular phase of
the proceedings to be a final judgment, the trial court’s order must dispose of all
issues in a particular “phase of the proceeding.” London, 349 S.W.3d at 678 (Frost,
J., concurring).
Here, the trial court’s consent order, considered in contrast with its prior
turnover and receivership order, did finally adjudicate lot 8 as Fischer’s non-
homestead, non-exempt property, granted the receiver possession and control, and
authorized its sale, with only the final closing of a specific sale subject to approval.
Thus, the trial court’s consent order constitutes a final, appealable order. See
Crowson, 897 S.W.2d at 783; Hutson, 800 S.W.2d at 847.
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Generally, to confer jurisdiction on an appellate court, a notice of appeal must
be filed within thirty days after the date a final order is signed. See TEX. R. APP. P.
26.1(b). The deadline to file a notice of appeal is extended to ninety days after the
date the order is signed if any party timely files a motion for new trial, motion to
modify or reinstate, or, under certain circumstances, a request for findings of fact
and conclusions of law. See TEX. R. APP. P. 26.1(a); see also TEX. R. CIV. P. 297,
329b(a), (g). A motion for new trial, if any, must be filed within thirty days after the
date the judgment is signed. TEX. R. APP. P. 329b(a).
However, Fischer did not file a notice of appeal or any post-judgment motions
seeking to modify the trial court’s May 12, 2014 consent order within thirty days
after it was signed. See TEX. R. APP. P. 26.1(a). Thus, the deadline to file her notice
of appeal expired on June 12, 2014. Even were we to construe Fischer’s motion to
vacate as a motion for new trial, because she not only sought to vacate the trial
court’s consent order but also a new judgment in her favor, she did not file her
motion until July 10, 2014, almost sixty days after the trial court signed its consent
order. See TEX. R. APP. P. 329b(a). Accordingly, we hold that we lack jurisdiction
over an appeal from the trial court’s consent order. See TEX. R. APP. P. 25.1, 26.1.
In her notice of appeal, Fischer states that she appeals from the “trial court’s
‘Order on [her] Motion to Vacate,” rendered on August 7, 2014.” However, the
deadline for filing her notice of appeal did not run from that date. Rather, it ran from
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the date of the signing of the consent order. See Naaman v. Grider, 126 S.W.3d 73,
74 (Tex. 2003); Powell v. Girly Girl, L.P., No. 01-14-00654-CV, 2015 WL 1061095,
at *1 (Tex. App.—Houston [1st Dist.] Mar. 10, 2015, no pet.) (mem. op.); see also
In re Estate of Garza, No. 13-14-00730-CV, 2015 WL 3799370, at *4 (Tex. App.—
Corpus Christi June 18, 2015, no pet.) (mem. op.) (ruling on motion to vacate not
independently appealable); see also Emmott v. Boudreaux, No. 01-12-00951-CV,
2013 WL 127567, at *1 (Tex. App.—Houston [1st Dist.] Jan. 10, 2013, pet. dism’d
w.o.j.) (mem. op.) (order dismissing motion for new trial not independently
appealable).
Conclusion
We dismiss the appeal for lack of jurisdiction.
Terry Jennings
Justice
Panel consists of Justices Jennings, Higley, and Brown.
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