Dessie Maria Andrews and William T. Veith v. Timothy C. Smith, Independent of the Estate of William F. Baska ( 2006 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-05-00835-CV
Dessie Maria Andrews and William T. Veith, Appellants
v.
Timothy C. Smith, Independent Executor of the Estate of William Baska, Deceased,
Appellee
FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT
NO. 20808, HONORABLE GUILFORD L. JONES, III, JUDGE PRESIDING
MEMORANDUM OPINION
Dessie Maria Andrews and William T. Veith appeal a postjudgment turnover order
entered by the district court requiring that $25,000 posted as a bond on behalf of Andrews be
delivered to Timothy C. Smith, Independent Executor of the Estate of William Baska, Deceased, in
partial satisfaction of a prior, uncollected civil judgment. We affirm the order.
This appeal has its roots in a long-running dispute between Smith and Andrews.1
Smith is the executor of Baska’s estate and sole heir. See Andrews v. Smith, No. 03-01-00402-CV,
2002 Tex. App. LEXIS 3642, at *2 (Tex. App.—Austin May 23, 2001, pet. dism’d w.o.j.) (op. on
reh’g) (Andrews). According to the trial court, Andrews was in a fiduciary relationship with Baska
1
The background information in this paragraph comes from the trial court judgment dated
September 28, 2001, attached to the motion for enforcement in the clerk’s record. See Smith v.
Andrews, No. 20808 (33rd Dist. Ct., Burnet County, Tex. Sept. 28, 2001) (Smith). For convenience,
we may also refer to this court’s opinion on the appeal from judgment on the merits in the underlying
dispute. See Andrews v. Smith, No. 03-01-00402-CV, 2002 Tex. App. LEXIS 3642 (Tex.
App.—Austin May 23, 2001, pet. dism’d w.o.j.) (op. on reh’g) (Andrews).
and was a “Purported Trustee of an Alleged LCS Trust.” See Smith v. Andrews, No. 20808, at 1-2
(33rd Dist. Ct., Burnet County, Tex. Sept. 28, 2001) (Smith). Trial was held on August 6, 2001. A
final judgment on the merits was signed on September 28, 2001. The judgment provided, among
other things, that the LCS Trust “is null and void and does not exist by law,” and that any property
held in the name of the trust that originally belonged to Baska was subject to the legal control of
Smith as executor of Baska’s estate. See Andrews, 2002 Tex. App. LEXIS 3642, at *4-*5; Smith,
at 2. The judgment also awarded personal property to Smith, as executor, and actual damages of
$47,332.44 and exemplary damages of $200,000, as well as attorney’s fees and interest in favor of
Smith. Smith, at 4-10.
On July 30, 2002, Smith filed a motion for enforcement of the judgment. According
to the district court’s docket sheet,2 a hearing was set on the motion for enforcement. According to
the court’s docket sheet and discussions during the hearing, Andrews was in the courthouse but
opted not to appear at the hearing. The docket sheet reflects that a show cause order issued regarding
Andrews on August 1, 2002, and that the district court held a hearing on a motion for contempt. At
the hearing on the motion for contempt, the court ordered attachment “per Rule 692.” Later, state
court activity ceased when the action was removed to federal court.3
2
“Although docket entries are not generally considered to be binding orders of the court,
they are effective in certain circumstances and can be used to show the appellate court what occurred
in the lower court.” American Indus. Life Ins. Co. v. Ruvalcaba, 64 S.W.3d 126, 132 (Tex.
App.—Houston [14th Dist.] 2001, pet. denied) (citing Quaestor Investments, Inc. v. State of
Chiapas, 997 S.W.2d 226, 229 (Tex. 1999); N-S-W Corp. v. Snell, 561 S.W.2d 798, 799 (Tex. 1977)
(orig. proceeding)).
3
The state court action resumed when the federal court action was dismissed.
2
A bond dated June 4, 2004, states that $25,000 in cash was deposited to ensure that
Andrews would appear in court in Burnet County to answer to a felony charge of failure to appear.4
On February 14, 2005, Andrews filed a demand for return of the bond. On August 11, 2005, Veith
filed a demand for return of the bond, asserting that he and others deposited the funds as sureties for
Andrews. He complained that the bond was unnecessary because Andrews had never been
summoned and had not failed to appear for a hearing. On August 22, 2005, Smith filed a motion to
apply cash bond toward judgment. By that motion, he sought to apply the $25,000 cash bond
deposited on Andrews’s behalf on the charge of failure to appear toward the damages due under “the
Judgment of August 6, 2001.”
The court held a hearing on the motions to enforce and to apply the bond on
September 9, 2005. In its docket entry concerning the hearing, the district court noted that Andrews
did not appear at the hearing despite having notice.5 Veith, describing himself as a surety on the cash
bond, objected to the motion contending that he and other sureties—not Andrews—were the owners
of the funds deposited with the clerk’s office to back the appearance bond, and they did not consent
to use of the funds to satisfy Andrews’s judgment debt. The court noted at the hearing that the cash
bond was not a surety bond, that it was posted by Andrews, and that it called for the return of the
deposited funds to Andrews, not Veith. The court accordingly concluded that, with respect to
4
Smith’s attorney stated at the September 9, 2005 hearing that a writ of attachment was
issued for Andrews in 2002 after she failed to appear at a show cause hearing related to the motion
for enforcement of the underlying judgment in this cause. Andrews denies being charged with a
felony.
5
Smith’s attorney referred to Texas Code of Criminal Procedure article 17.02 (West 2005),
which provides, “Any cash funds deposited under this Article shall be receipted for by the officer
receiving the same and shall be refunded to the defendant if and when the defendant complies with
the conditions of his bond, and upon order of the court.”
3
Andrews, Veith was a lender, not a surety. The docket entry relating to the hearing reflects that the
court found that the bond was forfeited and ordered the funds turned over to Smith. By order signed
September 9, 2005, the district court granted the motion and issued an “Order Turning Over Cash
Bond to Judgment Creditor.” The court ordered the District Clerk of Burnet County to release the
$25,000 cash bond by executing a check payable to Smith and his attorney.
We review the district court’s turnover order under an abuse of discretion standard.
Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). We may reverse for an abuse of
discretion only if the district court acted in an unreasonable or arbitrary manner—i.e., if the district
court acted without reference to any guiding rules and principles. See Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). We may not find an abuse of discretion and
reverse an order merely because we disagree with a decision by the trial court, if that decision was
within the trial court’s discretionary authority. See id. at 242.
Most of appellants’ complaints are based on the premise that Smith, his attorney, and
the court acted with disregard for trust property. They complain that the LCS Trust was never sued,
that the district court raided the trust, and that the district court lacked jurisdiction over the trust.
These complaints are addressed and answered by the judgment on the merits in which the trial court
held that the LCS Trust was null and void. Smith, at 2. That judgment was affirmed. Andrews,
2002 Tex. App. LEXIS 3642, at *4. The petition for review was dismissed for want of jurisdiction
by the Texas Supreme Court on August 29, 2002, and this Court issued its mandate on October 21,
2002. Thus, the judgment is final. Because the LCS Trust had been adjudged null, void, and
nonexistent at the time of the turnover proceeding, its absence from the motions and turnover
proceeding is not error.
4
Appellants complain that no motion to enforce was filed or served and that none is
on record. However, the clerk’s record in this appeal contains a motion for enforcement filed with
the district court on July 30, 2002. The hearing reviewed in this appeal also was based on the motion
to apply the cash bond toward judgment, filed on August 22, 2005, and contained in the clerk’s
record in this appeal. In the motion to apply cash bond, Smith’s attorney, Richard Mock, certified
that he served copies of that motion on Andrews and Veith by certified mail. At the hearing, the
following exchange occurred after Mock explained that the hearing concerned both the motion to
enforce and the motion to apply the cash bond to the judgment:
MR. VEITH: Here’s how I knew I was supposed to be here today: I have this copy.
Is that what you have?
MR. MOCK: That’s what I mailed you—
MR. VEITH: Okay. Okay. I got this from Dessie. Her son gave it to me. I didn’t
get it certified mail, but I got her copy.
MR. MOCK: I sent it to both of you.
MR. VEITH: I didn’t get it, but I got her copy.
MR. MOCK: So you got the motion also?
MR. VEITH: Right. So I got her copy. But I haven’t picked up the mail.
MR. MOCK: Okay. So she did acknowledge—
MR. VEITH: She got it, yes.
MR. MOCK: —getting notice of this setting—
MR. VEITH: Yes.
MR. MOCK: —today? Okay.
5
Nothing in the record controverts these indicia of filing, service, and receipt of the motions.
Appellants also complain about the bond—whether it was proper and whether the
funds could be released to someone other than Andrews. The scope of our review in this appeal
from the turnover order is limited to the turnover proceeding. The challenged bond issued on June
4, 2004, so any appellate deadlines concerning related orders ran before appellants filed the notice
of this appeal on December 21, 2005. See Tex. R. App. P. 26.1. Thus, in this appeal, we cannot
consider whether the bond was appropriate. As appellants assert, the cash bond states that Andrews
is the person entitled to receive the cash if and when the bond is ever released. That excludes Veith
and supports Andrews’s ownership right. However, the turnover statute empowers courts to help
a judgment creditor “reach property to obtain satisfaction on the judgment if the judgment debtor
owns property, including present or future rights to property . . . .” See Tex. Civ. Prac. & Rem. Code
Ann. § 31.002(a) (West Supp. 2006). Like her right to other property, Andrews’s right to receive
the cash deposited with the clerk as the bond—a nonexempt asset—is subject to Smith’s rights as
her judgment creditor. See id. The district court ordered the bond released and the funds held by
the clerk’s office applied to the partial satisfaction of the amounts due under the outstanding
judgment. The court is expressly empowered to do this pursuant to section 31.002(b)(2). Id. We
conclude that the district court acted within its discretion by ordering the funds turned over to satisfy
the judgment in favor of Smith rather than returned to Andrews.
Appellants complain that Smith has not sought a writ of possession or contacted the
Department of Motor Vehicles. This is apparently a reference to the transfer of title of motor
vehicles required by the judgment. That transfer is only part of the judgment on the merits of this
suit and is not a precondition to payment of the monetary damage awards. The district court’s
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judgment included an award in favor of Smith of actual damages of $47,332.44 and exemplary
damages of $200,000, as well as attorney’s fees and interest. The judgment requires payment of
these amounts irrespective of enforcement efforts relating to the nonmonetary relief in the judgment.
Finally, Andrews asserts that she is not a United States citizen and that this Court and
the district court have jurisdiction only over citizens. To the contrary, Texas courts can exercise
jurisdiction over defendants without reference to whether they are citizens even if the defendant is
not a Texas resident. See Tex. Civ. Prac. & Rem. Code Ann. § 17.042 (West 1997); Michiana Easy
Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 784-85 (Tex. 2005); Schlobohm v. Schapiro, 784
S.W.2d 355, 356 (Tex. 1990). Andrews’s Austin, Texas address—used in the cash bond, the
certificate of service in Smith’s motion to apply the cash bond, and appellants’ brief—indicates that
she is a Texas resident. Regardless, Andrews’s assertion of noncitizenship is not dispositive of and
is irrelevant to whether Texas courts may exercise jurisdiction over her.
Concluding that appellants have raised no reversible error, we affirm the order.
G. Alan Waldrop, Justice
Before Justices Puryear, Pemberton and Waldrop
Affirmed
Filed: September 29, 2006
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