                                IN THE
                        TENTH COURT OF APPEALS

                              No. 10-18-00050-CV

A-MEDICAL ADVANTAGE HEALTHCARE
SYSTEMS, ASSOCIATED, KEVIN WILLIAMS, M.D.,
ADVANTAGE MEDICAL CLINIC, INC.,
JOHN ZACHARIAS AND LINDA RILEY,
                                     Appellants
 v.

JULIA SHWARTS, INDIVIDUALLY
AND AS EXECUTOR OF THE ESTATE
OF KALMAN SHWARTS, AND
KAL SHWARTS, M.D., P.A.,
                                                       Appellees



                         From the 13th District Court
                           Navarro County, Texas
                        Trial Court No. D15-24567-CV


                        MEMORANDUM OPINION

      Appellants A-Medical Advantage Healthcare Systems, Associated (“AHS”), Kevin

Williams, M.D. (“Williams”), Advantage Medical Clinic, Inc. (“AMC”), John Zacharias

(“Zacharias”), and Linda Riley (“Riley”) (collectively “Appellants”) bring this
interlocutory appeal challenging the trial court’s order appointing a receiver. We will

affirm.

                                                Background

          Appellees initiated this suit as ancillary to an existing probate proceeding—In the

Estate of Kalman J. Shwarts, Deceased, Cause No. P18036—filed in the Navarro County

Court. In their Third Amended Petition, Appellees outline the events preceding the filing

of their lawsuit.         In 2003, Kalman Shwarts, M.D. started an urgent care clinic in

Waxahachie, Texas known as Enviva Health Services (“Enviva”). The clinic was operated

by Kal Shwarts, M.D., P.A., a Texas professional association formed by Dr. Shwarts in

1977 (“the PA”).          Dr. Shwarts died unexpectedly on August 3, 2012.                      A probate

proceeding styled In the Estate of Kalman Jay Shwarts, Deceased, was filed under Cause No.

P18036 in Navarro County, Texas on August 9, 2012. Dr. Shwarts’s heirs are his wife,

Julia Shwarts (“Mrs. Shwarts”); his son, Adam Shwarts; and his daughter, Anastasia

Israel (collectively “the Heirs”). Mrs. Shwarts is the step-mother of Mr. Shwarts and Ms.

Israel. She is also an executor of Dr. Shwarts’s estate (“the Estate”).

          While Dr. Shwarts was alive, Riley, Zacharias, Pin Point Management, L.L.C.

(“Pinpoint”),1 and/or AHS provided management services to Enviva. From 2011 to the

present, the sole member, director and officer of AHS has been Williams. Zacharias and

Riley acted as agents of AHS both in communicating with the Estate and in managing the

day-to-day operations of AHS. After Dr. Shwarts’s death, AHS, Pinpoint, Riley and/or




1   Pinpoint is named as a defendant in the original and amended petitions, but is not a party to this appeal.

A-Medical v. Shwarts                                                                                   Page 2
Zacharias agreed to continue to provide management services to Enviva. From August

2012 until February 2014, AHS, Pinpoint, Riley and/or Zacharias caused Enviva to issue

distribution payments to the Heirs and to Pin Point and took the position that they owned

50 percent of Enviva.

       On March 11, 2014, AMC entered into a written agreement to purchase Enviva

from the Estate. The officers of AMC are Zacharias and Riley. The closing of the sale was

to take place on or before April 15, 2014. Because of the imminent closing, the Heirs

agreed that Enviva could stop paying distributions to them. The sale of Enviva did not

close in April 2014. Over the following months, Zacharias and Riley each communicated

with the Estate about the status of the closing. As late as July 2014, Riley assured the

Estate of AMC’s intention to close. The closing never occurred, but the payment of

distributions to the Heirs never resumed.

       The Estate made multiple requests to Appellants to be provided Enviva’s clinic’s

financial records, but no records were provided. On March 18, 2015, Mrs. Shwarts sent a

letter to counsel for Appellants requesting to inspect Enviva’s books and records. On

March 25, 2015, Appellants responded, stating that they could not comply with Mrs.

Shwarts’s request because they had ceased management of the clinic. Appellants also

claimed that Enviva had stopped operating in April 2014 and that Appellants were

holding Enviva’s equipment “in trust.” None of the Appellants had notified the Heirs,

the Estate or the PA that they planned to stop managing Enviva, or that their

management had ceased.



A-Medical v. Shwarts                                                               Page 3
       On April 8, 2015, Mrs. Shwarts sent another letter requesting access to Enviva’s

records and equipment. Once again, Appellants failed to provide any information

regarding Enviva’s records or equipment. Mrs. Shwarts then discovered that Enviva’s

sign had been removed from its location and replaced with a sign reading “Advantage

Medical Clinic,” and that the phones were being answered as “Advantage” instead of

“Enviva.”     Appellants subsequently moved the clinic to a new location without

consulting with or notifying Appellees.

       Appellees filed suit seeking damages for breach of fiduciary duty, theft of trade

secrets, breach of contract and additionally seeking declaratory relief, disgorgement, an

accounting, and the appointment of a receiver.

       Pin Point filed counterclaims for breach of contract, promissory estoppel, and

negligent misrepresentation.    The trial court granted Appellees’ motion for partial

summary judgment as to these counterclaims. Appellees filed a motion for partial

summary judgment based upon their claim for declaratory relief, requesting that the trial

court find that AMC is actually Enviva and is an asset of the Estate. Appellees also filed

a motion for partial summary judgment against the Appellants for breach of fiduciary

duty. The trial court granted both of Appellees’ motions for partial summary judgment.

Appellees’ motion for appointment of a receiver was also granted after an evidentiary

hearing.    As noted, Appellants’ interlocutory appeal challenges the trial court’s

appointment of the receiver.




A-Medical v. Shwarts                                                                Page 4
         After the appeal was filed, Appellants filed three motions to stay proceedings and

an emergency motion to modify supersedeas bond, all of which were denied by the

Court.

                                             Issues

         Appellants present the following issues:

                 1.    The trial court did not provide a reasoning [sic] behind its
         ruling; however, that conclusion could not have been made without an
         affirmative finding that Appellees, had standing and capacity to assert
         claims and request extraordinary relief. Did the trial court err by granting
         Appellees’ Motion to Appoint a Receiver of the P.A. beyond the cessation
         of the three-year corporate survival period following the P.A.’s dissolution
         on November 7, 2012?

              2.      Did the trial court err in appointing a receiver to operate and
         conduct the business operations of a professional association located in Ellis
         County?

                 3.     Did the trial court abuse its discretion in appointing a receiver
         to operate and conduct the business of the P.A., a legally non-existent
         entity, when Appellees failed to prove—and the court did not find—any of
         the statutory requirements for the appointment of a receiver under TEX. CIV.
         PRAC. & REM. CODE § 64.001(a)(6)?

                                           Discussion

         A. Issues One and Two. In their first issue, Appellants argue that the trial court

erred in appointing a receiver for three reasons: (1) Appellees’ claims are barred by

limitations because the P.A. was dissolved over three years prior to suit being filed and

none of the claims Appellees have asserted constitute “existing claims” or derive from

acts necessary for winding up the P.A.’s affairs; (2) the Texas Business Organizations

Code prohibits Appellees from continuing the affairs of the P.A.; and (3) Appellees lack




A-Medical v. Shwarts                                                                        Page 5
standing. These issues were presented to the trial court in Appellants’ plea to the

jurisdiction and motion for summary judgment.

       In their second issue, Appellants assert that the trial court had no jurisdiction to

appoint a receiver because Enviva is now located in Ellis County while the trial court is

in Navarro County. This issue was not previously presented to the trial court.

       An appeal may be taken only from a final judgment, unless a statute specifically

authorizes an interlocutory appeal. See Lehmann v. Har–Con Corp., 39 S.W.3d 191, 195

(Tex. 2001); see also TEX. PRAC. & REM. CODE ANN. § 51.012. We strictly construe statutes

authorizing interlocutory appeals because they are a narrow exception to the general rule

that interlocutory orders are not immediately appealable. CMH Homes v. Perez, 340

S.W.3d 444, 447 (Tex. 2011). Section 51.014 of the Civil Practice and Remedies Code

authorizes several specific instances in which an interlocutory appeal may be taken. TEX.

CIV. PRAC. & REM. CODE ANN. § 51.014. “Colloquially, these instances are referred to as

‘interlocutory appeals as of right,’ because parties need not secure judicial permission

before filing an interlocutory appeal.” Sabre Travel Int’l, Ltd. v. Deutsche Lufthansa AG, 567

S.W.3d 725, 730 (Tex. 2019). An order appointing a receiver is included in the list of

“interlocutory appeals as of right.” § 51.014(a)(1). Not included are orders denying

motions for summary judgment, except in certain delineated instances not present in this

case, and pleas to the jurisdiction that do not involve governmental units. See Borowski v.

Ayers, 432 S.W.3d 344, 347 (Tex. App.—Waco 2013, no pet.) (“An order denying a

summary judgment motion is . . . generally not appealable because it is an interlocutory

order and not a final judgment.”); Cantu Services, Inc. v. United Freedom Associates, Inc., 329

A-Medical v. Shwarts                                                                    Page 6
S.W.3d 58, 64 (Tex. App.—El Paso 2010, no pet.) (appellate court without jurisdiction to

consider interlocutory appeal from denial of plea to jurisdiction from non-governmental

party).

          Section 51.014 of the Civil Practice and Remedies Code, however, provides that

certain matters may be appealed on an interlocutory basis if certified by the trial court

and accepted by the appellate court. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d), (f).

Such appeals, referred to colloquially as “permissive interlocutory appeals,“ require that

the trial court certify in a written order that:

          (1) the order to be appealed involves a controlling question of law as to
          which there is a substantial ground for difference of opinion; and

          (2) an immediate appeal from the order may materially advance the
          ultimate termination of the litigation.

Id. at § 51.014(d); see Sabre Travel, 567 S.W.3d at 731. The record before us includes no

written authorization from the trial court in this case for any type of interlocutory appeal.

          As Appellants have not established that they are entitled to either an

“interlocutory appeal as of right” or a “permissive interlocutory appeal” as to the denial

of their motion for summary judgment and plea to the jurisdiction, we have no

jurisdiction to consider Appellants’ first and second issues.

          Appellants’ second issue is additionally barred because the record contains

nothing to indicate that an objection to improper venue was made by written motion in

the trial court. See TEX. R. CIV. PRO. 86(1) (“An objection to improper venue is waived if

not made by written motion filed prior to or concurrently with any other plea, pleading

or motion. . . .”).

A-Medical v. Shwarts                                                                   Page 7
       B. Issue Three. In their third issue, Appellants assert that there is no legal or

equitable basis for the appointment of a receiver. Appellants assert that the trial court

erred because the Appellees are statutorily prohibited from acquiring an ownership

interest in the clinic and because there is no threat of injury to Appellees.

       As noted, a party may bring an interlocutory appeal from an order appointing a

receiver. TEX. CIV. PRAC. & REM. CODE ANN. § 54.014(a)(1); see Estate of Hoskins, 501 S.W.3d

295, 301 (Tex. App.—Corpus Christi 2016, no pet.); see also Krumnow v. Krumnow, 174

S.W.3d 820, 826 (Tex. App.—Waco 2005, pet. denied). We review an order appointing a

receiver for an abuse of discretion. Benefield v. State, 266 S.W. 3d 25, 31 (Tex. App.—

Houston [1st Dist.] 2008, no pet.); Krumnow, 174 S.W.3d at 828. “A court may abuse its

discretion by ruling arbitrarily, unreasonably or without reference to any guiding rules

and principles, or without supporting evidence.” Krumnow, 174 S.W.3d at 828. We

examine the entire record when conducting an abuse of discretion review. Id. “When, as

here, the trial court makes no separate findings of fact or conclusions of law, we draw

every reasonable inference supported by the record in favor of the trial court’s judgment.”

Perry v. Perry, 512 S.W.3d 523, 526 (Tex. App.—Houston [1st Dist.] 2016, no pet.).

       A trial court’s order must be affirmed if it can be upheld on any legal theory that

finds support in the evidence. Perry, 512 S.W.3d at 526. If there is some evidence of a

substantive and probative character to support the trial court’s order, the trial court did

not abuse its discretion. Estate of Price, 528 S.W.3d 591, 593 (Tex. App.—Texarkana 2017,

no pet.); see also Estate of Hoskins, 501 S.W.3d at 306 (“[T]he trial court generally does not

abuse its discretion when its decision is based on conflicting evidence and some evidence

A-Medical v. Shwarts                                                                    Page 8
in the record reasonably supports the trial court’s decision.”). Because the appointment

of a receiver is “a harsh, drastic, and extraordinary remedy, to be used cautiously,”

Benefield, 266 S.W.3d at 31, “receivership is warranted only if the evidence shows a threat

of serious injury to the applicant.” Perry, 512 S.W.3d at 527 (quoting Benefield, 266 S.W.3d

at 31).

          The Civil Practice and Remedies Code provides a number of instances in which a

court of competent jurisdiction may appoint a receiver, including “in any other case in

which a receiver may be appointed under the rules of equity.” TEX. CIV. PRAC. & REM.

CODE ANN. § 64.001(a)(6).

          In its prior rulings on the various motions for summary judgment, the trial court

held that Enviva is an asset of the Estate and that Zacharias, Riley and Pin Point breached

their fiduciary duties to Appellees. The trial court noted that its decision regarding the

appointment of a receiver was based upon the testimony and exhibits introduced at the

evidentiary hearing on Appellees’ motion for appointment of a receiver and the exhibits

included with Appellees’ motion for partial summary judgment.

          The record before the trial court reflects that Appellants had sole control over the

day-to-day management of Enviva after Dr. Shwarts’s death. Appellants did not pay the

agreed purchase price for Enviva on the closing date. Appellants did not resume

payments from Enviva’s profits to the Heirs after the closing date had passed without a

finalization of the sale of Enviva. Appellants changed the name of Enviva to Advantage

Medical Care without consulting with, or approval from, Appellees. Appellants moved

the clinic without consulting with, or approval from, Appellees. Appellants rebuffed all

A-Medical v. Shwarts                                                                    Page 9
attempts by Appellees to obtain the financial records of Enviva, leading to the filing of

the present suit.

       Records from the Secretary of State reflect that notices of federal tax liens totaling

hundreds of thousands of dollars have been filed against Riley and Zacharias and a

number of the various health care entities that they have owned and/or operated. After

Enviva became AMC, a state tax lien was filed against the company for unemployment

taxes as well as a UCC-1.

       From the foregoing, the trial court was justified in concluding that the

appointment of a receiver was necessary to determine whether Appellants were properly

managing the financial affairs of Enviva and that Appellees were threatened with serious

injury if Appellants continued to collect Enviva’s profits without any distribution to the

Heirs or to the Estate.

       The trial court did not abuse its discretion in appointing a receiver. Appellants’

third issue is overruled.

                                        Conclusion

       We are without jurisdiction to consider Appellants’ first and second issues. We

overrule Appellants’ third issue and affirm the order of the trial court granting Appellees’

motion to appoint a receiver.




                                                  REX D. DAVIS
                                                  Justice


A-Medical v. Shwarts                                                                  Page 10
Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
Affirmed
Opinion delivered and filed December 31, 2019
[CV06]




A-Medical v. Shwarts                            Page 11
