                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-11-00358-CV


Gilda M. Brawley                          §   From the 325th District Court

                                          §   of Tarrant County (325-427357-07)
v.
                                          §   December 6, 2012

Cherri Huddleston                         §   Opinion by Justice Meier

                                  JUDGMENT

      This court has considered the record on appeal in this case and holds that

there was error in the trial court’s judgment awarding Appellee Cherri Huddleston

receivership and attorney’s fees. It is ordered that the judgment of the trial court

is reversed and we render a judgment that Appellee Cherri Huddleston take

nothing on her intervention for receivership fees.

      It is further ordered that Appellee Cherri Huddleston shall pay all costs of

this appeal, for which let execution issue.


                                     SECOND DISTRICT COURT OF APPEALS

                                     By_________________________________
                                       Justice Bill Meier
                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-11-00358-CV


GILDA M. BRAWLEY                                                  APPELLANT

                                        V.

CHERRI HUDDLESTON                                                  APPELLEE


                                     ----------

          FROM THE 325TH DISTRICT COURT OF TARRANT COUNTY

                                     ----------

                        MEMORANDUM OPINION1

                                     ----------

      In two issues, Appellant Gilda M. Brawley appeals from a judgment

awarding Appellee Cherri Huddleston receivership fees. We will reverse and

render judgment in favor of Gilda.

      Gilda and her husband, Samuel Brawley, were involved in divorce

proceedings when on June 2, 2009, the trial court appointed Huddleston receiver



      1
       See Tex. R. App. P. 47.4.


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of a property owned by the Brawleys.          Huddleston’s primary responsibility—

according to the order appointing her receiver—was to sell the property.

      Soon thereafter, Gilda filed a motion for new trial (1) referencing a letter

issued by the trial court on May 29, 2009, that apparently set out the trial court’s

proposed property division in the divorce; (2) arguing that the trial court’s

property division was ―grossly disproportionate, unjust and without justification‖;

and (3) requesting that the order appointing a receiver be set aside.2 The trial

court denied the motions for new trial.

      On September 1, 2009, Huddleston filed a ―Motion for Enforcement of

Receivership,‖ alleging that she had been unable to fully perform her duties as

receiver because of various conflicts that she had encountered with Gilda and

Samuel.    A few weeks later, the trial court signed an order dismissing the

Brawleys’ divorce action but indicating that Huddleston’s ―request . . . for

payment survives.‖

      On October 13, 2009, Huddleston filed her first amended post-judgment

petition in intervention for receivership fees, requesting ―recovery for the

reasonable value of the services [that she] performed‖ as receiver and attorney’s

fees. After a hearing on the petition, the trial court issued a letter finding that

Huddleston was entitled to recover $5,700 for her services rendered as receiver



      2
      Samuel also filed a motion for new trial challenging the trial court’s
proposed property division.


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and $1,591 in attorney’s fees. The trial court signed a final judgment awarding

Huddleston the same in June 2011.

      In her first issue, Gilda argues that the trial court abused its discretion by

appointing Huddleston receiver of the Brawleys’ property. She contends that

there was no risk of harm to the property and that neither party requested that a

receiver be appointed.

      In addition to pointing out that Gilda never pursued an interlocutory appeal

of the order appointing a receiver, Huddleston responds that Gilda designated

only a partial reporter’s record but failed to comply with rule of appellate

procedure 34.6(c)(1). Huddleston contends that we must therefore presume that

the non-designated portions of the record support the trial court’s decision to

appoint a receiver. We address this contention first.

      An appellant may pursue an appeal on a partial reporter’s record if he

includes a statement of points or issues to be presented on appeal in his request

for the reporter’s record. Tex. R. App. P. 34.6(c)(1). Any other party may then

designate additional portions of the record that they believe are relevant to the

appeal, and the appellate court will presume that the partial reporter’s record

constitutes the entire record for purposes of reviewing the stated points or issues.

Tex. R. App. P. 34.6(c)(2), (4).

      But in Bennett v. Cochran, the supreme court held that the statement of

points or issues need not be included in the request for the reporter’s record so

long as the statement is made at such a time that the other side’s appellate


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posture is not impaired.    96 S.W.3d 227, 229 (Tex. 2002).         Bennett’s tardy

statement of points or issues was sufficient to satisfy rule 34.6(c) because

Cochran had more than two months after he first received notice of Bennett’s

statement of issues to file his appellee’s brief, and Cochran did not argue that

Bennett’s delay prevented him from identifying the relevant issues or

supplementing the reporter’s record or that he had insufficient time to adequately

prepare his appellate arguments.       Id. at 229–30.     The supreme court thus

―adopted a more flexible approach in certain cases . . . when a rigid application of

Rule 34.6 would result in denying review on the merits, even though the appellee

has not established any prejudice from a slight relaxation of the rule.‖ Id. at 229.

      Here, the only trial court proceeding that Gilda designated to be included in

the reporter’s record was the November 20, 2009 hearing on Huddleston’s action

to recover receivership fees. Gilda did not include a statement of points with the

request, but she did indicate in her notice of appeal that she intended to

challenge the trial court’s judgment awarding Huddleston receivership and

attorney’s fees. See Melton v. Toomey, 350 S.W.3d 235, 237 (Tex. App.—San

Antonio 2011, no pet.) (holding that statement of points in notice of appeal

sufficient to invoke rule 34.6(c)(4) presumption). Moreover, to the extent that

Huddleston harbored any lingering doubts about the issues that Gilda intended to

raise, Gilda’s appellate brief unambiguously identified her intent to challenge the

trial court’s decision to appoint Huddleston receiver, and several months elapsed

between when Gilda filed her brief and when Huddleston filed her brief. Thus,


                                         5
Huddleston had an opportunity to request that the reporter’s record be

supplemented with additional trial court proceedings, including the hearing at

which the parties apparently litigated the property division, which preceded the

trial court’s order appointing Huddleston receiver, and she does not argue that

she had insufficient time to prepare her arguments or that she was otherwise

prejudiced. Therefore, because Huddleston could have designated additional

trial court proceedings that she may have considered relevant to the issues

raised by Gilda but did not do so, and because she does not argue that she was

prejudiced by Gilda’s failure to strictly comply with rule 34.6(c), we will implement

rule 34.6(c)(4)’s presumption that the reporter’s record as designated constitutes

the entire record for purposes of reviewing Gilda’s issues. See Tex. R. App. P.

34.6(c)(4); Bennett, 96 S.W.3d at 229–30.

      The family code permits the trial court to appoint a receiver during a suit for

dissolution of a marriage for the preservation and protection of the property of the

parties. Tex. Fam. Code Ann. § 6.502(a)(5) (West 2006). We will not disturb the

trial court’s order appointing a receiver absent an abuse of discretion. Norem v.

Norem, 105 S.W.3d 213, 216 (Tex. App.—Dallas 2003, no pet.). A trial court

abuses its discretion if the court acts without reference to any guiding rules or

principles, that is, if the act is arbitrary or unreasonable. Low v. Henry, 221

S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex.

2004).




                                         6
      At the hearing on November 20, 2009, Huddleston testified about her fees

and the problems that she had encountered dealing with Gilda and Samuel when

attempting to perform her duties as receiver. Although she acknowledged that

Gilda’s and Samuel’s attorneys had told her not to proceed with the sale of the

property, she explained that she only takes instructions from the trial court and

that she had continued to perform services as receiver because she was abiding

by the order of the court to do so.           Gilda testified that she had informed

Huddleston that she and Samuel did not want to sell the house, and Samuel

testified that he told Huddleston that they were going to sell the property at a later

date. Thus, the hearing consisted of Gilda and Samuel questioning Huddleston

as to why she continued to perform receivership services after being told not do

so and Huddleston explaining that she had an obligation to perform services as

receiver until ordered otherwise. There was no testimony or evidence relating to

whether the appointment of a receiver was necessary for the preservation and

protection of the Brawleys’ property. See Tex. Fam. Code Ann. § 6.502(a)(5).

      Huddleston additionally argues that Gilda’s first issue is unpersuasive

because she did not pursue an interlocutory appeal of the order appointing a

receiver, as she could have done, see Tex. Civ. Prac. & Rem. Code Ann.

§ 51.014(a)(1) (West Supp. 2012); Tex. Fam. Code Ann. § 6.507 (West 2006),

but Huddleston directs us to no authority holding that Gilda’s decision to not

pursue an interlocutory appeal of the order appointing a receiver somehow

prohibits her from raising the same issue now in a direct appeal after a final


                                          7
judgment has been entered. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)

(stating that a person ―may‖ appeal from an interlocutory order under certain

circumstances).

      We hold that the trial court abused its discretion by appointing Huddleston

receiver. We sustain Gilda’s first issue and do not address her second issue.

See Tex. R. App. P. 47.1. Having sustained Gilda’s first, dispositive issue, we

reverse the trial court’s judgment awarding Huddleston receivership and

attorney’s fees and render judgment that Huddleston take nothing on her

intervention for receivership fees.




                                                 BILL MEIER
                                                 JUSTICE

PANEL: GARDNER, MCCOY, and MEIER, JJ.

DELIVERED: December 6, 2012




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