Tedde R. Blunck v. Cathy A. Blunck ( 2015 )

ACCEPTED
03-15-00128-CV
6708004
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/28/2015 3:58:50 PM
JEFFREY D. KYLE
CLERK
NO. 03-15-00128-CV
FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS AUSTIN, TEXAS
8/28/2015 3:58:50 PM
FOR THE JEFFREY D. KYLE
Clerk
THIRD COURT OF APPEALS DISTRICT
AT AUSTIN, TEXAS
Tedde R. Blunck
Appellant
V.
Cathy A. Blunck
Appellee
From the 22nd Judicial District Court
of Hays County, Texas
APPELLEE'S BRIEF
LAW OFFICE OF KARL E. HAYS, PLLC
2101 South IH35, Suite 210
Austin, Texas 78741
512-476-1911
512-476-1904 facsimile
service@haysfamilylaw.com
Karl E. Hays
State Bar Number 09307050
Pursuant to fl-X. R. APR. P. 39.7,
Appellee waives oral argument.
IDENTITY OF PARTIES AND COUNSEL
In compliance with Rule 38.2(a)(1)(A) of the Texas Rules of Appellate
Procedure which provides that the list of all parties to the trial court's judgment and
the names and addresses of all counsel is not required to be included in an appellee's
briefunless such information is necessary to supplement or correct the appellant's list,
Appellee advises the Court that Appellant has correctly identified the parties and their
counsel in this matter.
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL i
TABLE OF CONTENTS ii
INDEX OF AUTHORITIES iii
REFERENCE TO THE RECORD ON APPEAL v
STATEMENT OF THE CASE vi
WAIVER OF ORAL ARGUMENT vii
APPELLEE'S RESPONSE TO ISSUES PRESENTED viii
SYNOPSIS OF THE ARGUMENT 2
STATEMENT OF FACTS 5
STANDARD OF REVIEW 7
ARGUMENT AND AUTHORITIES 8
PRAYER 16
CERTIFICATE OF COMPLIANCE 17
CERTIFICATE OF SERVICE 18
APPENDIX 19
11
INDEX OF AUTHORITIES
CASES
Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991) 7, 10
Burns v. Miller, Hiersche, Martens & Hayward, P.C.
948 S.W.2d 317, 324 (Tex. App. -Dallas 1997, writ denied) 7
Clayton v. Wisener, 169 S.W.3d 682, 683-84
(Tex. App. -Tyler 2005, no pet.) 10
Guerinot v. Wetherell, 2013 WL 2456741, at *4 (Tex. App. June 6, 2013) .... 9
Jones V. Am. Airlines, Inc., 131 S.W.3d 261, 266
(Tex. App. -Fort Worth 2004, no pet.) 7
Schultz V. Fifth Judicial Dist. Court ofAppeals at Dallas
810S.W.2d 738, 740 (Tcx. 1991) 9
Tanner v. McCarthy, 274S.W.3d311,322
(Tex. App. -Houston [1 st Dist.] 2008, no pet.) 7, 9, 15
Williams Farms Produce Sales, Inc. v. R iSc G Produce Co.
443 S.W.3d 250, 259 (Tex. App. -Corpus Christi 2014, no pet 12, 13
RULES
Texas Rules of Appellate Procedure 38.1(g) 5
Texas Rules of Appellate Procedure 38.2 1
Texas Rules of Fvidence 902 12
111
STATUTES
Section 31.002 of the Texas Civil Practice and Remedies Code 4, 8, 9
Section 31.002(a) of the Texas Civil Practice and Remedies Code 8, 10
Section 31.002(b) of the Texas Civil Practice and Remedies Code 8
Section 31.002(h) of the Texas Civil Practice and Remedies Code 3, 14
SECONDARY SOURCES
David Hittner, Texas Post-Judgment Turnover & Receivership Statutes^
45 Tex. Bar J. 417,417-18 (1982) 10
Second Amended Order Regarding Mandatory Reports of
Judicial Appointments and Fees,
S. Ct. Misc. Docket No. 07-9188 (Oct. 30, 2007) 16
IV
REFERENCE TO THE RECORD ON APPEAL
Citations to the clerk's record are designated herein by "CR" followed by the
applicable page nLimber(s) thereof.
Citations to the reporter's record are designated herein by "RR" followed by the
applicable volume, page and line number(s) thereof. Citations to exhibits included
in the reporter's record are designated herein by "RR" followed by the applicable
exhibit number.
Citations to the Appendix are designated herein by "AFP EX" followed by the
applicable exhibit number assigned within the text of this brief.
STATEMENT OF THE CASE
Rule 38.2(a)(1)(B) of the Texas Rules of Appellate Procedure expressly
provides that an appellee's brief need not include a statement of the case "unless the
appellee is dissatisfied with that portion of the appellant's brief." Accordingly,
Appellee advises this Court that she is satisfied with Appellant's description of the
nature of the case, the course of the proceedings, and the trial court's disposition of
the case.
VI
WAIVER OF ORAL ARGUMENT
Pursuant to Tex. R. App. P. 39.7, Appellee, Cathy A. Blunck, advises the
C0U1I: that she waives her right to argue this case to the Court.
vn
APPELLEE'S RESPONSE TO ISSUES PRESENTED
The trial court did not abuse its discretion by entering an order for
turnover relief, because there was sufficient evidence to support th^
District Court's order.
(In reply to Appellant's Issue No. I).
The trial court did not abuse its discretion by entering an order that
did not identify the specific property that was subject to turnover.
(In reply to Appellant's Issue No. II).
The trial court did not abuse its discretion by establishing the rate at
which the Receiver would be paid and by including a finding that the
established rate was the customary and usual fee for a receiver.
(In reply to Appellant's Issue No. III).
vin
NO. 03-15-00128-CV
IN THE COURT OF APPEALS
FOR THE
THIRD COURT OF APPEALS DISTRICT
AT AUSTIN, TEXAS
Tedde R. Blunck
Appellant
V.
Cathy A. Blunck
Appellee
From the 22nd Judicial District Court
of Hays County, Texas
APPELLEE'S BRIEF
Pursuant to Rule 38.2 of the Texas Rules of Appellate Procedure, Cathy A.
Blunck, the Appellee in these proceedings, responds to the arguments presented to
this Court by Appellant, Tedde R. Blunck. For the reasons set forth below, Cathy A.
Blunck requests that this Court affirm the order of the trial court in all respects.
SYNOPSIS OF ARGUMENT
The trial court did not abuse its discretion by granting Appellee's request for
turnover relief. As a judgment creditor, Appellant was entitled to receive aid from
the trial court in the form of a turnover order if Appellant established that Appellee
owns property that cannot readily be attached or levied on by ordinary legal process
and that is not exempt from attachment, execution or seizure for the satisfaction of
liabilities. At the hearing on Appellant's request for turnover relief, the trial court
took judicial notice of the Final Decree ofDivorce in this case, which reflects on its
face that Appellant was awarded assets in his divorce that cannot readily be attached
or levied on by ordinary legal process and which are not exempt from attachment,
execution or seizure. Even without any additional evidence, the trial court had
sufficient cause to grant the request for turnover relief.
Appellee also offered additional evidence in support of her request, which
clearly supports her entitlement to relief. In addition to the information contained
within the parties' Final Decree ofDivorce, Appellee presented the trial court with
a certified copy of "The Tedde R. Blunck Living Trust" which reflected that
Appellant was in possession ofcertain contract rights with respect to property that he
had transferred into the Trust. Appellee also presented copies of the official
schedules that Appellant submitted to the Bankruptcy Court in connection with his
bankruptcy. Those schedules reflect Appellant's interest in certain accounts
receivable, bank accounts and other assets that had been awarded to him in his
divorce, as well as his interest in his law practice. The bankruptcy schedules, which
were signed by Appellant under penalty of perjury were self-authenticating and
established that Appellant was in possession assets such as the revenue from his law
practice and two accounts receivable valued at $59,500.00 that cannot readily be
attached or levied on by ordinary legal process. Consequently, the trial court had a
sufficient evidentiary basis upon which to grant the requested turnover relief.
The trial court also did not abuse its discretion by failing to identify in the
turnover order the specific property that was subject to the order. Appellant's
argument in that regard is based upon case law that has specifically been superseded
by statute. Section 31.002(h) ofthe Texas Civil Practice and Remedies Code, which
was adopted in 2008, specifically provides that a turnover order does not have to
identify the specific property that is subject to turnover.
Finally, the trial court did not abuse its discretion by establishing the rate at
which the Receiver will be compensated. Appellant is correct in his assertion that the
trial court cannot "pre-approve" the Receiver's right to compensation. Establishing
the rate to be charged by the Receiver, however, is not the same as awarding the
Receiver his fees. The Receiver will still need to submit a report to the Court and
obtain the trial court's approval of any request for fees. At that time, Appellant will
be able to challenge the Receiver's request and assert any relevant arguments in
opposition to the Receiver's request.
The order signed by the trial court on 9 February 2015, is supported by
sufficient evidence, is in compliance with the express provisions of Section 31.002
of the Texas Civil Practice and Remedies Code, and is proper in all respects.
Accordingly, the order should be affirmed by this Court.
STATEMENT OF FACTS
Rule 38.1 (g) of the Texas Rules of Appellate Procedure states,
The brief must state concisely and without
argument the facts pertinent to the issues or
points presented. In a civil case, the court
will accept as true the facts stated unless
another party contradicts them. The statement
must be supported by record references.
Despite the plain language ofRule 38.1(g), Appellant chooses to interject both
argument and opinion in his recitation of the pertinent facts regarding this case.
Accordingly, Appellee respectfully urges this Court to disregard the extraneous and
irrelevant nature of the majority of Appellant's statement of facts and focus instead
only on those facts that are relevant to the disposition of this appeal.
Mindful of the fact that Rule 38.1 (g) provides that the Court will accept as true
the facts stated in an appellant's statement of facts unless those facts are controverted.
Appellee advises this Court that she generally denies Appellant's version ofthe facts.
Additionally, Appellee incorporates herein by reference her Statement of Facts
presented below, and any reference to the facts in her argument presented herein and
offers both in contravention of the relevant facts asserted by Appellant.
Appellee obtained a judgment against Appellant on 24 October 2012, which
Appellant has refused to pay. (CR 36-70)(The Final Decree of Divorce is not a
formal part of the record in this case, but is attached as an exhibit to Appellee's
request for turnover relief). On 30 January 2015, Appellee filed a Motionfor Post-
Judgment Receivership Pursuant to Section 31.002, Civil Practice and Remedies
Code, seeking judicial assistance in collecting the outstanding judgment. (CR 33 -
35). On 9 February 2015, the trial court considered Appellee's request for turnover
relief. Although he had been provided with notice of the hearing, Appellant did not
attend. At the conclusion ofthe hearing the trial court granted Appellee's request for
turnover relief and appointed a receiver with the authority to take possession of
Appellant's non-exempt property. (CR 72 - 78).
STANDARD OF REVIEW
Turnover orders are reviewed under an abuse of discretion standard.
Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). Under the abuse
of discretion standard, legal and factual insufficiency challenges do not constitute
independent grounds for error, but are factors that the appellate court examines in
assessing whether the trial court abused its discretion. See Tanner v. McCarthy, 21A
S. W.3d 311,322 (Tex. App.-Houston [1stDist.] 2008, no pet.); Jonesv. Am. Airlines,
Inc., 131 S.W.3d261,266(Tex.App.-Fort Worth 2004, nopet.). Atrial court abuses
its discretion when it acts in an unreasonable or arbitrary manner, without reference
to any guiding rules and principles. Beaumont Bank, 806 S.W.2d at 226. An
appellate court should not reverse for an abuse of discretion ifthere is some evidence
of a substantive and probative character to support the trial court's decision. Tanner,
274S.W.3d at 321;Burnsv. Miller, Hiersche, Martens &Hayward, P.€., 948S.W.2d
317, 324 (Tex. App.-Dallas 1997, writ denied). Therefore, lack of evidence to
support a turnover order is a relevant consideration in determining whether a trial
court abused its discretion in granting the order. BeaumontBank, 806 S.W.2dat 226.
ARGUMENT AND AUTHORITIES
The District Court did not abuse its discretion by entering an order
for turnover relief, because there was sufficient evidence to support
the District Court's order.
(In reply to Appellant's Issue No. I).
In his first issue, Appellant argues that there was no evidence to support the
trial court's order. A trial court's entry ofa turnover order is governed by Texas Civil
Practice and Remedies Code section 31.002. See, Tex. Civ. Prac. and Rem. Code
Ann. § 31.002(a) (Vernon 2015). Under that section, a judgment creditor is entitled
to receive aid from a court in order to reach property to obtain satisfaction on a
judgment "ifthe judgment debtor owns property... that: (1) cannot readily be attached
or levied on by ordinary legal process; and (2) is not exempt from attachment,
execution, or seizure for the satisfaction of liabilities." Id. Ifthe foregoing conditions
are met, the trial court may order the judgment debtor to turn over nonexempt
property to a designated sheriff or constable for execution, may otherwise apply the
property to the satisfaction of the judgment, or, as was the case in this instance, the
trial court may appoint a receiver with the authority to take possession of the
nonexempt property, to sell it, and to pay the proceeds to the judgment creditor as
required to satisfy the judgment. Id. § 31.002(b) (Vernon 2015).
As specifically noted by the Court of Appeals in Tanner v. McCarthy, 274
5.W.3d 311, 322 (Tex. App. -Houston [1st Dist.] 2008, no pet).
Section 31.002 does not specify, or restrict,
the manner in which evidence may be received in
order for a t r i a l court to determine whether the
conditions of section 31.002(a) exist, nor does
it require that such evidence be in any
particular form, that it be at any particular
level of specificity, or that i t reach any
particular quantum before the court may grant
aid under section 31.002.
In fact. Section 31.002 does not even require that the trial court conduct an
evidentiary hearing prior to granting relief under the statute. Tanner, 274 S.W.3 at
322,fn.21.
Even though Section 31.002 does not specify the manner in which evidence
may be received by the trial court, or state the fonn, level of specificity or quantum
of evidence required to justify the issuance of a turnover order, a trial court is
required to have some evidence before it that establishes the existence of the
necessary conditions before the trial court can properly enter an order granting relief
under that section. Guerinot v. Wetherell, 2013 WL 2456741, at *4 (Tex. App. June
6, 2013), citing. Tanner, 274 S.W.3d at 322; Schultz v. Fifth Judicial Dist. Court of
Appeals at Dallas, 810 S.W.2d 738, 740 (Tex.l991)(holding that turnover statute
requires factual showing that judgment debtor has nonexempt property that is not
readily subject to ordinary execution); Clayton v. Wisener, 169 S.W.3d 682, 683-84
(Tex. App.-Tyler 2005, no pet.) (holding that trial court abused its discretion in
entering turnover order without any evidence of facts required by Section 31.002(a)
and based only on motion and argument of judgment creditor's counsel); accord
Beaumont Bank, 806 S.W.2d at 226 (holding that lack ofevidence to support turnover
order is relevant consideration in determining whether trial court abused its discretion
in entering order).
The basis of Appellant's first argument is the assertion that Appellee failed to
present competent evidence to support her request for turnover relief. That assertion
is simply incorrect.
The stated purpose of the turnover statute is to permit a judgment creditor to
reach intangible assets such as contract rights, accounts receivable, negotiable
instruments and corporate stocks, in addition to other assets that cannot readily be
attached or levied on by ordinary legal process. David Hittner, Texas Post-Judgment
Turnover & Receivership Statutes, 45 Tex. Bar J. 417, 417-18 (1982)(citing House
and Senate committee reports). At the hearing on Appellee's request for relief, the
trial court took judicial notice of the file and, specifically of the Final Decree of
Divorce signed by the trial court on 24 October 2012. (RR Vol. II11. 14-17). The
Final Decree ofDivorce reflects that Appellant was awarded, among other property,
10
an interest in two timeshares, seven separate bank accounts, life insurance policies
insuring Appellant's life as well as a life insurance policy insuring the life of a third
party, travel and hotel award benefits, timber and mineral interests, loan proceeds
from various loans, and a note receivable. (CR 41-45)(Applicable pages attached as
EX. 1 in the Appendix). All ofthese items constitute property that cannot readily be
attached or levied on by ordinary legal process.
Appellant does not join issue with the fact that the trial court had sufficient
evidence to support a request for turnover relief by virtue of having taken judicial
notice of the file. Instead, Appellant's argument in support of his first issue centers
around a challenge to the authenticity ofthe additional evidence that Appellee offered
to the Court in support of her request. Contrary to Appellant's assertion, the trust
document that Appellee offered into evidence at the hearing on her request for
turnover relief (Movant's Ex. 1) was a certified copy of"The Tedde R. Blunck Living
Trust" and therefore was self-authenticating under Rule 902( 1)(A) ofthe Texas Rules
of Evidence. The fact that the document was a certified copy is clearly evident from
the record. For the Court's benefit, a copy ofthe last page ofthe document, reflecting
the certification ofthe Camp County Clerk is included as APP EX. 2 in the Appendix
to this Brief.
11
The import of the trust agreement is that it reflects on its face that Appellant
has certain valuable contract rights regarding property that Appellant had transferred
into his living trust. Those contract rights constitute assets that cannot readily be
attached or levied on by ordinary legal process.
With respect to the second exhibit that Appellee offered in support of her
request for turnover relief, that document also was self-authenticating under Rule 902
ofthe Texas Rules ofEvidence. Movant's Ex. 2 was copies ofthe required schedules
that Appellant had filed in connection with his bankruptcy, and which reflected,
among other things, Appellant's interest in certain accounts receivable, bank
accounts, and his law practice - all ofwhich are assets that cannot readily be attached
or levied on by ordinary legal process. Aside from the fact that the bankruptcy
schedules rellect that they were signed by Appellant under penalty of perjury, (which
should call into question the sincerity of his challenge as to the authenticity of the
exhibit), each page of Movant's Ex. 2 bears the electronic file stamp from the
Bankruptcy Court. In addressing a similar challenge to a docket sheet printed from
the uscourts.org website, the Corpus Christi Court of Appeals in Williams Farms
Produce Sales, Inc. v. R&G Produce Co., 443 S.W.Sd 250,259 (Tex. App. - Corpus
Christi 2014, no pet.) concluded.
12
Relying on federal case law and the plain
language of the statute, we hold that documents
printed from government websites are
self-authenticating under Texas Rule of Evidence
902(5) .
The Court further explained,
In addition, under Texas law, evidence may be
authenticated by its [a] ppearance, contents,
substance, internal patterns, or other
distinctive characteristics, taken in
conjunction with circumstances" that support a
finding that a document is what its proponent
claims. Tex.R. Evid. 901(b) (4) . While we hold
that the documents printed from government
websites are self-authenticating under Rule
902(5), we also acknowledge that, because they
indicate they originated from government
websites, they could also have been internally
authenticated under Rule 901(b)(4). See id.;
Tienda v. State, 358 S.W.3d 633, 647 (Tex. Crim.
App.2012) (holding that printouts from MySpace
webpages were admissible because there was
sufficient evidence on them indicating that they
''were what they purported to be - MySpace pages
the contents of which the appellant was
responsible for"); see also U.S. E.E.O.C. v.
E.I. DuPont de Nemours & Co.^ CIV. A. 03-1605,
2004 WL 2347559, at *2 (E.D.La. Oct. 18, 2004)
(finding that, in addition to being admissible
under Federa]. Rule of F,vidence 902 (5) , an
exhibit printed from a government website was
also admissible under the Rule 901 because i t
contained the i n t e r n e t domain address from the
website and the date on which i t was printed).
443 S.W.Sd at 259, fn. 7.
13
In light of the foregoing, it is clear that the trial court did not abuse its
discretion by granting Appellee's request for turnover relief. The trial court clearly
had sufficient evidence upon which to base an order granting turnover relief
The District Court did not abuse its discretion by entering an order
that did not identify the specific property that was subject to
turnover.
(In reply to Appellant's Issue No. II).
In his second issue, Appellant makes the argument that the trial court's order
is invalid because it "fails to state specifically what non-exempt property in the
possession of Judgment Debtor is to be turned overor when it is to be turned over."
(Appellant's Briefat p. 20). Insupport of hisargument. Appellant citesthree separate
appellate opinions,' each of which predate the adoption of §31.002(h) of the Texas
Civil Practice and Remedies Code. Section 31.002(h) specifically provides,
(h) A court may enter or enforce an order under
this section that requires the turnover of non-
exempt property without identifying in the order
the specific property subject to turnover.
' Schultz V. Fifth Judicial Dist. Ct. ofApp. at Dallas, 810 S.W.2d 738, 740 (Tex.
1991); Mayer v. Mayer, 183 S.W.3cl 48,54 (Tex. App. -Austin 2005); Bergman v. Bergman,
828 S.W.2d 555. 557( Tex. App. -HI Paso. 1992. nowrit). The fourth case cited byAppellant
isan order From an United States Magistrate Judge whieh, aside from having noprecedential
value, is simply wrong. A review of the order, which is included in the Appendix as APP
EX. 3, reflects that it is based upon case law that predates the 2008 addition of § 31.002(h)
to the Civil Practice and Remedies Code.
14
As stated by the Court of Appeals in Tanner v. McCarthy, 274 S.W.3d 311
(Tex. App. -Houston [1st Dist] 2008, no pet),
Indeed, section 31.002 does not require that a
judgment creditor seeking a turnover order
identify all, or even any, of the judgment
debtor's assets that are to be the subject of
the turnover order, nor does the statute require
the trial court to identify the specific
property subject to turnover in its turnover
order. See id. §31.002(h).
Appellant's argument that the trial court's order had to identify the specific
property that was subject to turnover is based on a line of cases that has been
specifically superseded by statute and is simply wrong.
The District Court did not abuse its discretion by establishing the
rate at which the Receiver would be paid and by including a finding
that the established rate was the customary and usual fee for a
receiver.
(In reply to Appellant's Issue No. 111).
In its order, the trial court specifically established the rate at which the
Receiver would be paid. Additionally, the trial court made a finding that the rate
established by the trial court is the customary and usual fee for a receiver. Appellant
misconstrues the trial court's order and argues, essentially, that the trial court has
prematurely ruled upon the validity of the Receiver's fees. That is simply not the
case. In order to be paid, the Receiver will need to submit a separate request for
15
payment and obtain approval from the trial court. See, Second Amended Order
Regarding Mandatory Reports of Judicial Appointments and Fees, S. Ct Misc.
Docket No. 07-9188 (Oct. .30, 2007). (APP EX. 4). The trial court's order makes no
attempt to usurp the requirements established by the Texas Supreme Court. Any
argument that Appellant may have regarding the reasonableness of charges can be
asserted by Appellant at the time the Receiver files a motion requesting payment and
would properly be addressed at that time. Appellant can cite this Court to no
authority which provides that it is improper for a trial court to establish the rate at
which a receiver is to be compensated and to include that rate in its turnover order.
The trial court's finding that the rate established by the trial court is the customary and
usual rate for a receiver is not a determination before the fact of the reasonableness
of the Receiver's fees. Accordingly, there was nothing improper about putting the
Receiver's rate in the turnover order or the trial court's finding in that regard.
PRAYER
For the reasons stated in this brief, Cathy A. Blunck respectfully asks this
Court to overrule the issues presented by Tedde R. Blunck and affirm the trial court's
order in all respects.
16
Respectfully submitted,
LAW OFFICE OF KARL E. HAYS, PLLC
2101 South IH-35, Suite 210
Austin, Texas 78741
512-476-1911
512-476-1904 facsimile
service@.havsfamilylaw.com
By: /s/ Karl E. Hays
Karl E. Hays
State Bar Number 09307050
ATTORNEY FOR APPELLEE
CERTIFICATE OF COMPLIANCE
I Certify that this document was produced on a computer using WordPerfect
and contains 4402 words, as determined by the computer software's word-count
function, excluding the sections of the document listed in Texas Rules of Appellate
Procedure 9.4(1)(1).
/s/ Karl E. Havs
Karl E. Hays
17
CERTIFICATE OF SERVICE
In compliance with Rule 9.5(a), 9.5(d) and 9.5(e) of the Texas Rules of
Appellate Procedure, the undersigned attorney certifies that a true and correct copy
ofthe foregoing Appellee's Briefhas been served upon the below-named individual,
in the manner noted below, as prescribed by Rule 9.5(b) of the Texas Rules of
Appellate Procedure on this 28th day of August 2015.
/s/ Karl E. Hays
Karl E. Hays
Via E-File Transmission
Tedde R. Blunck
502 Quitman Street
P.O. Box 1152
Pittsburg, Texas 75686
tblunck@yahoo.com
18
APPENDIX TO APPELLEE'S BRIEF
1. Pages 7-10 (Vol. 584, pg 0663 - 0666) from Final Decree ofDivorce, Cause
No. \\-\l\l, In the Matter ofthe Marriage ofTedde R. Blunck and Cathy A,
Blunck, in the 22nd District Court of Hays County, Texas.
2. Last page of certified copy of "The Tedde R. Blunck Living Trust" reflecting
the certi fication of the Camp County Clerk.
3. Findings, Conclusions, and Recommendation ofthe United States Magistrate
Judge, No. 3:13-cv-4311 -D, Shanze Enterprises, Inc., v. Amigo MGA, LLC, In
the United States District Court, Northern District of Texas, Dallas Division
4. Second Amended Order Regarding Mandatory Reports of Judicial
Appointments and Fees, S. Ct Misc. Docket No. 07-9188 (Oct. 30, 2007)
19
EXHIBIT 1
Oct. 24. 2012 9: 22AM Barrett &Coble No. 0865 P. 9
Declaration upon and subject to all of the terms, restrictions, covenantSi
conditions, provision inthe Declaration andanyamendments thereto, i
b. A 2% undivided interest as tenant-in-common in and to Unit 057 (the
"Unit"), Hill Countty Resort, Phase 3, a vacation resort in Comal County,
Texas, according to the Second Amended and Restated Declaration of
Restrictions, Covenants and conditions recorded under File No. 20000
6037046 and Si^plemental Declaration recorded under FileNo. N/A Real
Property Records ofComal County, Texas, (collectively the '^Declaration"),
and as shown and described in the Plat of)^1 Country Resort recorded in
Volume 8, Page 345 of the Plat Records, Comal County, Texas, together
vrith the exclusive right to occupy the Unit during Use Period No. 17,
beginning APR1L26,2008, as said Use Period is definedin the Declaration
upon and subject to all of the terms, restrictions, covenants, conditions,
provision in theDeclaration and any amendments thereto.
4. The real property and improvements located at 502 Qultman Street,
Pittsburg, Camp County, Texas, 75686 including but not limited tp any
escrow timds, easements, homeowners association ri^ts, p^aid
insurance, utility deposits, keys, house plans, home security access and
code, keys and garage door opener, warranties and service contracts, and
title and closing documents related to the property, which is .more
particularly described as:
.52 acre Nancy Glass Survey, Abstract No. 073. A-43 (aka Lot 08, E Pt.
City Block 48 perCCAD), City ofPittsburg, Camp County, Texas
Being a lot, tract, or parcel of land situated in the Nancy Glass Survey,
Abstract No. 073, Camp County, Texas, and being all ofthat certain tract of
cry land conveyed from Zeliah Heath etvir to Dr. Manuel Guerra, by Warranty
«X) deed, as recorded in Volume 141, page 342, Deed Records, Camp County,
^ Texas, and being more particularly described by metes and boun^ as
2
a.
follows: ;
BEGINNING at a 60d nail set in asphalt at the Northeast comer of the
® remainder of a called 0.623 acre tract conveyed to Carolyn Rape, by
—I
C3
Warranty Deed, as recorded in Volume 041, page 106, Real Property
Records, Camp County, Texas, said point being in the South line of State
Highway No. 11 (aJc.a. Quitman Street), from said point, a Vz inch iron rod
found, bears North 69 Degrees 03 Minutes 27 Seconds West, a distaime of
IMMO'Blundt
Find Decree ofD'tvorce
Fagfil
0.00181
Page 42 of 207 34 000042
Oct. 24. 2012 9:22AM Barrett &Coble No. 0865 i P. 10
64.00 feet;
THENCE South 69 Degrees 03 Minutes 27 Seconds East, with the;South
line of said State HighwayNo. 11, a distance of 60.38 feet to a 14 inch iron
rod set with a yellow plastic cap stamped (CBG INC) at the NorAwest
comer of a tract of land once conveyed to Mollie Thomison by Warranty
Deed as recorded in Volume 051, page 165, Deed Records, Camp County,
Texas, &om said point, a '/S inch iron pipe found, bears North 12Degrees
53 Minutes 11 SecondsWest, a distance of 0.98 feet;
THENCE South 12 Degrees 53 Mmutes 11 Seconds West, with the; West
line of said Tbomison tract, and passing the Southwest comer of said
Thomison tract, and a Northwest comer of the remainder of a called; 1-1/4
acre tract conveyed to Camp County-City of Pittsbuig, Texas, by Warranty
Deed, as recorded in Volume 122, page 483, DeedRecords, Camp County,
Texas, and continuing on for a total distance of283.36 feet to a 14 inch iron
rod set with a yellow plastic stamped (CBG INC) at the Eastern most
Northeast comer of a called 0.253 acre tract conveyed to the East Texas
Medical Center Regional Healthcare System, by Warranty Dec^, as
recorded in Volume 179, page 128, Officid Public Records, Camp County,
Texas, from said point, a 14 inch iron rod found with a red plastic cap
stamped (S&A), bears South 10 Degrees 49 Minutes 21 Seconds West, a
distance of 73M feet;
THENCE North 71 Degrees 36 Mmutes 01 Seconds West, with a North
line of said 0.253 acre tract, a distance of 100.00 feet to a 14 inch iron rod
set with a yellow plastic cap stamped (CBG INC) at an ell comer of said
0.253 acre tract;
kO
^ THENCE North 20 Degrees 54 Minutes 16 Seconds East, (Reference
^ Bearing), with the an East line of said 0.253 acre tract, and passing at a
£ distance of 11,29 feet, a 14 inch iron rod found with a red plastip cap
^ stamped (S&A) at the Northern most Northeast comer of said 0.253 acre
tract, and the Southeast ccmier of theremainder of said0.623 acre tract, and
in
continuing on for a total distance of 285.00 feet to the POINT OF
BEGINNING and CONTAINING 22,707 square feet or 0.52 acres of land,
more or less. !
5. All household furniture, furnishings, fixtures, goods, art objects,
collectibles, appliances, and equipment in the possession ofTedde R. Blundk orsubject
1
/MMO Blunek
Final Decree ofPivcree
Page 8
000182
Page 43 of 207 35 000043
Oct. 24. 2012 9:22AM Barreit &Coble No. 0865 . F. j]
I
tohis sole control exc€])t as specifically listed below.
The funds on deposit, together with accrued but unpaid interest, in the
following banks, savings institutions, or other financial institutions:
a. Wells Fargo checking account number ending in **1488; !
b. Wells Fargo checking account number ending in **0348;
0. Wells Faigo checking account number ending in **9173;
d. WellsFargo checking account number ending in **4223;
e. WellsFargo checking account number endingin **1927; and ;
f. WellsFargo checking account number endingin **0879.
g. The remaining balance in Wells Fargo savings account number
ending in xxxx2983 after$40,291.00 ispaidto Cathy A. Blunck.
7. FORTY-FIVE PERCENT (45%) ofTedde R. Blimck's benefits in P^ons
Brinckerfaoff Inc. Exec Def Comp Plan (DCOMP I), c/o T. Rowe Price, arising out of
Tedde R. Blunck's employment with Parsons Brindcerhoff, Inc. to be paid as set out
below.
8. FORTY-FIVE PERCENT (45%) of Tedde R Blunck's benefits in Parsons
Brinckcrhoff Inc. Exec Def Comp Plan (DCOMP II), c/o T. Rowe Price, arising out of
Tedde R. Blunck's employment with Parsons BrinckerhofF, Inc. to be paid as s6t out
below.
9. All policies of life insurance (including cash values) insuring Tedde R.
Blunck's life.
10. The MIL Insurance Company life insurance policy insuring S. J.
Hawkinson.
11- The 2008 Ford F150 motor vehicle, vehicle identification number
1FTPW14V88FB48320, together with allprepaid insurance, keys, and title documents.
o
CO
ex.. 12. The 2012 Ford Escape motor vehicle, vehicle identification number
-a- 1FMCUCEG7CKA65259, together with all prepaid insurance, keys, and title documents.
00
^ 13. The 1976 Bethany Citation Travel Trailer motor vehicle, veshicle
CO
identification number BFl111CFB464015, togedier withellprepaid insurance, keys, and
title documents.
IMMOBlmek
final Dtcrtt ofPivcrce
Page 9
000183
Page 44 of 207 33 000044
0(t. 24. 20] 2 9:22AM Barrcit i Coble No. 0865 P. 12
1|4. The following travel and hotel award benefits:
t
a. Marriott account number ending in **S894;
b. 50% ofGold Delta Sky Miles account number ending **1008;
c. Southwest Airlines benefitsheld in Husband's name;
d. American Airlines benefits held in Husband's name; and
e. WelJs Fargo account number ending in*•1165.
15. The contents ofthe storage unit located in Pittsburgh, Texas.
16. An undivided one half (14) interest in timber and mineral interests on the
property located at ABS A060 Mary Hayes, Tract, 41-5000, 406.93 (:+-1.55
AC in Rd.) acres, and morecommonly Imown as 1347 CR 4510 Pittsburg,
Texas. ;
t
17. Theoutstanding loanproceeds fit)m Kelle Hawkinson.
t
I
18. Theoutstanding loanproceeds firom Michelle Jolie.
19. The outstanding loan proceeds fiom Beau Shafer.
20. The proceeds from the Note receivable from Richard and Vanessa Antpinc.
21. The hunting trophies and prints save and except forthetrophies awarded to
CathyA. Blunckand Ordered delivered to Riduvd Antoine herein.
22. Contents ofthe gun safe and hunting gear in his possession.
Property to Cathv A. Blunck
^ IT IS ORDERED AND DECREED that Cathy A. Blunck is awarded the
VD
o
following as her sole and separate property, and Tedde R. Blunck is divested of all right.
CD
a_
^ title, interest, and claim in and to that property:
CO
1. All household furniture, furnishings, fixtures, goods, art objects,
^ collectibles, appliances, and equipment inthe possession of thewife or subject to hersole
control.
/Mh40Blimek
FiruU Deerte ofD,tvorce
Page 10
000184
Page 45 of 207 37 000045
EXHIBIT 2
334 PAGE
"3^ Q)
THE STATE OF TEXAS ^ EtAtNE YOUNG, COUNTT CLERK , CAMP COUNTY, TEXAS
COUNTY OF CAMP /462 F.3d
417, 426 (5th Cir. 2006) (citing Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 224
(Tex. 1991)). The turnover statute itself does not require notice and a hearing prior to
issuance of a turnover order. See Ex parle Johnson, 654 S.W.2d 415, 418 (Tex. 1983).
Nevertheless, the trial court "must have some evidence before it that establishes that
the necessary conditions for the application of 31.002 exist." Tanner v. McCarthy, 274
S.W.3d 311, 322 (Tex. App.-Houston [1st Dist.] 2008, no pet.). The creditor must show
the trial court that: "(1) the debtor owns the property, (2) the property cannot be
readily attached, and (3) the property is not exempt." Stephenson v. LeBoeuf, No.
14-2-130-cv, 2003 WL22097781, at *2 (Tex. App.-Houston [14thDist.] Sept. 11, 2003,
no pet.).
For a judgment creditor to prove the required elements, the creditor must
"introduce more evidence than just a motion for turnover. The statute requires a
-2-
Case 3:13-cv-04311-D Document 25 Filed 09/23/14 Page 3 of 5 PagelD 73
factual showing that the judgment debtor has non-exempt property that is not readily
subject to ordinary execution." Id. (citing SduUlz i'. Fifth Judicial Dist. Court of
Appeals at Dallas, 810S.W.2d 738, 740 (Tex. 1991)). "A turnover order must be specific
in both identifying the non-exempt property that is susceptible to turnover relief and
in tailoring the turnover relief to that property." Moyer v. Moyer, 183 S.W.3d 48, 54
(Tex. App. - Austin 2005, no pet.); see also Roebuck v. Horn, 74 S.W.3d 160, 163 (Tex.
App. - Beaumont 2002, no pet.) ("A reference to broad categories of assets does not
constitute a reference to specific assets that is required in a turnover order."); Finotti
V. Old Harbor Co., No. 5-97-1365-cv, 1999 WL 1034607, at *1 (Tex. App. —Dallas Nov.
16, 1999, no pet.) C'[T]he trial court's order must be definite, clear, and concise in its
description of the property to be turned over eliminating the need for interpretations,
inferences or conclusions.").
The Court therefore may not properly enter a turnover order if there is not at
least some probative evidence of the necessary facts supporting the trial court's
discretion. See Williams Farms Produce Sales, Inc. v. R&G Produce Co., No. 13-12-
00365-CV, 2014 WL 1266118, at *4 (Tex. App. - Corpus Christi 2014, no pet.).
Analysis
Shanze has failed to establish that it is entitled to the turnover relief that it
requests. Shanze's motion states only;
As allowed by Federal Rule of Civil Procedure 64 and Section 31.002 of
the Texas Civil Practice & Remedies Code, Plaintiff and judgment
creditor Shanze Enterprises Inc. ("Shanze") seeks an order requiring
Defendant Amigo MGA, LLC to turn over to Plaintiff all present and
future rights to non-exempt property that cannot readily be attached or
Case 3:13-cv-04311-D Document 25 Filed 09/23/14 Page 4 of 5 PagelD 74
levied on by ordinary legal process, including accounts receivable,
intangibles, causes of action, stocks, partnership, and equity interests,
and all other property that is properly subject to a turnover order.
Dkt. No. 14.
Shanze has the burden to - but does not - identify any specific non-exempt
property or provide any evidence to establish that any specific non-exempt property is
susceptible to turnover relief. Shanze has failed to establish that: (1) Amigoowns the
property, (2) the property cannot be readily attached, and (3) the property is not
exempt. Shanze's motion only identifies "broad categories of assets," rather than
specific assets as required for a turnover order. Roebuck, 74 S.W.Bd at 163.
Therefore the record at this point does not allow for the Court to enter a
turnover order that is "definite, clear, and concise in its description of the property to
be turned over eliminating the need for interpretations, inferences or conclusions."
Finotti, 1999 WL 1034607, at *1. As such, Shanze's Motion For Turnover Order should
be denied without prejudice.
Recommendation
Shanze's Motion For Turnover Order [Dkt. No. 14] should be denied without
prejudice.
A copy of these findi ngs, conclusions, and recommendation shall be served on all
parties in the manner provided by law. Any party who objects to any part of these
findings, conclusions, and recommendation must file specific written objections within
14days after being served with a copy. See28 U.S.C. § 636(b)(1); FED. R. CiV. P. 72(b).
In order to be specific, an objection must identify the specific finding or
-4-
Case 3:13-cv-04311-D Document 25 Filed 09/23/14 Page 5 of 5 PagelD 75
recommendation to which objection is made, state the basis for the objection, and
specify the place in the magistrate judge's findings, conclusions, and recommendation
where the disputed determination is found. An objection that merely incorporates by
reference or refers to the briefing before the magistrate judge is not specific. Failure
to file specific written objections will bar the aggrieved party from appealing the
factual findings and legal conclusions of the magistrate judge that are accepted or
adopted by the district court, except upon grounds of plain error. See Douglass v.
United Servs. Auto. Ass'n, 79 F.Sd 1415, 1417 (5th Cir. 1996).
DATED: September 23, 2014
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
-5-
EXHI®IT4
IN THE SUPREME COURT OF TEXAS
Misc. Docket No. 07-
9188
SECOND AMENDED ORDER REGARDING
MANDATORY REPORTS OF JUDICIAL
APPOINTMENTS AND FEES
ORDERED;
Section 1. Every appointment made ina civil ca.se, probate case, or proceeding govemed by
Titles I, 2, or 4 of the Family Code, by a regular or assigned judge of any district court,
constitutional county court, statutory county court, statutory probate court, court master or court
referee of a person to a position for which any type of fee may be paid shall be made by written
order.
Section 2. Every application or request for the payment of a fee by such anappointee shall
be approved by the court ofthe judge making the appointment. This approval shall be accomplished
by a separate uTitten order.
Section 3. Orders regarding appointments made and fees paid may notbesealed orotherwise
withheld from public disclosure for anyreason, regardless of whether anyotherinformation in tlie
case is protected from disclosure.
Section 4. This order does not apply to appointments where compensation is solely by
government salary rather than by fee. or where the right to select the person appointed is reserved
by law to a party, as with independent executors and executrixes, or to appointments of private
processservers pursuant to Tex. R. Civ. P. 103. TTiis order does not apply to criminal cases and to
proceedings governed by Title 3 of the Family Code(Delinquent Children and Children in Need of
Supervision).
Section 5. At the end of each month, eachdistrict and countyclerkshall prepare a report to
include each feeapproved duringthat month for payment intheamount of $500 or more. The report
shall indicate;
(1) the nameof each personappointed by thejudge of each district court, countycourt,
statutory county court, and statutory probate court in the county to a position for
which a fee of$500 or more has been approved during the month to bepaid from any
source;
(2) the name of the judge approving the payment of the fees;
(3) thecase number and style of the case in which the fee was approved to be paid;
(4) the date of the order approving the payment of the fee;
(5) the position to which the person was appointed; and
(6) whether theappointee isanattorney, a private professional guardian, associated with
a public guardianship program, or a friend or familv member of the ward or the
deceased: and
(7) the amount of the fee approved for payment, and the source of such payment.
Misc. Docket No. 07- 9i 8S Pagg 2of4
Section 6. The clerk shall make a copy of this report available for public inspection in the
clerk's olTice, and shall, before the twentieth day of the month following the month reported,
transmit a copyof the reportto the Supreme Courtthrough the StateOfficeof Court Administration
in Austin.
Section 7. The clerk .shall retain each report for at least two years following the date it is
made available for public inspection.
Section 8. The clerk may charge the normal reasonable fee charged by the clerk for similar
reproductions for reproducing the report for a person requesting a copy of a report.
Section9. The orders signed pursuant to Sections 1and 2 above shall be sufficientlyspecific
to enable the clerk to prepare the report required by Section 5 above.
Section 10. This order is effective immediately, and applies to all fees of $500 or more
approved for paymenton or after September-1; 1994 November 1. 2007 and required to be reported
before the twentieth day of the following montli.
Section 11. A copy of this order shall be transmitted by the Clerk of the Supreme Court to
each district and county-level judge and to each district and county clerk.
Section 12. This order amends and supersedes Miscellaneous Order No. 94''9014 94-9143
(Januai v 18 September 21. 1994) of this Court.
In Chambers, this day of October, 2007.
Misc. Docket No. 07- 9188 Page 3of4
Wallace B. Jefferson, Chief
NatnM L. Hecht, Justice
Han [et O'Neill, Justice
Dale wainwright. Justice
JnstefrJustice
David M. Medina, Justice
Paul W. Green, Justice
Phil Johnson, Ju
UJdLljLdh
Don R. Willelt, Ju.stice
Misc. Docket No. 07- 9188 Page 4 of 4