                                                                                             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       /<sld hecj&toy eertify that the foregofrig ihstrument of writingvyith its
Certificateof autH          js^led for record in my office on the           tfay of               A.D. 2012
          ,v                   ftp' Ml ajadldulv fecordedbn the Z7d&V of                          A O. 2012
Frt&np,   am                                      Of Offidal Piiblfc Record of said countv.
Witn^ss my hahd                                       day and year laa above written.
                                                   / j) U .            ELAfNE YOUNG. COUNTV CURK
                                          By: _                                        , DEPUTY
                                 KIM PiTTMAN
EXIiIBIT3
                 Case 3:13-cv-04311-D Document 25 Filed 09/23/14        Page 1 of 5 PagelD 71



                                 IN THE UNITED STATES DISTRICT COURT
                                        NORTHERN DISTRICT OF TEXAS
                                             DALLAS DIVISION

           SHANZE ENTERPRISES, INC.,                    §
                                                        §
                           Plaintiff,                   §
                                                        §
           V.                                           §         No. 3:13-cv-4311-D
                                                        §
           AMIGO MGA, LLC,                              §
                                                        §
                           Defendant.                   §

                     FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
                                  UNITED STATES MAGISTRATE JUDGE


                     PlaintiffShanze Enterprises, LLC ("Shanze") filed on July 15,2014 a Motion For

           Turnover Order requesting the Court enter an order requiring Defendant AmigoMGA,

           LLC ("Amigo") to turn over to Plaintiff "all present and future rights to non-exempt

           property that cannot readily be attached or 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. Chief Judge Sidney A. Fitzwater referred the motion to the undersigned

           magistrate judge for hearing, if necessary, and recommendation or determination. See

           Dkt. No. 21. Amigo has not filed a response.

                     For the reasons explained below, Shanze's Motion for Turnover Order should be

           denied without prejudice.

                                                 Background

                     On October 25, 2013, Shanze filed this breach of contract action under the


                                                        1-



AUTMENTrLVTE:)
Ob CiUX
 INrORMAT(ON     1
    Case 3:13-cv-04311-D Document 25 Filed 09/23/14         Page 2 of 5 PagelD 72



Court's diversity jurisdiction. After Amigo failed to answer or otherwise respond to the

complaint, Shanze sought a default judgment. The Court granted Shanze's motion for

judgment and ordered that Shanze recover judgment in the principal amount of

$455,924.70 plus prejudgment and postjudgment interest. See Dkt. No. 12.

       Shanze now seeks a turnover order pursuant to Federal Rule of Civil Procedure

64 and Texas Civil Practice & Remedies Code § 31.002. See Dkt. No. 14.

                                  Legal Standards

       The Texas Turnover Statute, Texas Civil Practice & Remedies Code § 31.002, is

a procedural device by which judgment creditors may reach assets of a debtor that are

otherwise difficult to attach or levy. See Af-Cap, Inc. v. Republic of Congo, 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
