                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-15-00254-CV


DEBORAH LOGSDON                                                   APPELLANT

                                         V.

KERRY OWENS                                                        APPELLEE


                                      ----------

            FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 096-279970-15

                                      ----------

                           MEMORANDUM OPINION1

                                      ----------

      Appellant Deborah Logsdon appeals from the trial court’s summary

judgment in favor of Appellee Kerry Owens, the court-appointed receiver in

Logsdon’s divorce.       Because we hold that the trial court properly granted

summary judgment on the ground that Owens has derived judicial immunity, we

affirm the trial court’s judgment.

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

      In early 2012, Deborah filed for divorce from her husband Mark Logsdon

(Mark) after almost twenty-eight years of marriage.2 During the marriage, the

couple started and ran Champion Sweeping Company, which performed parking

lot, property, and building maintenance.3 In July 2012, the family court signed an

agreed order appointing Owens as receiver “to preserve and immediately protect

all of the property of the parties.” The order authorized Owens to do “any and all

acts necessary to effect the proper administration and lawful conduct of th[e]

receivership, including . . . any other acts in regard to the aforesaid property (real

and personal) as ordered herein by this Court.” The final divorce decree ordered

Owens to sell “Champion Sweeping and all assets, equipment, tools, implements

and related items . . . under terms and conditions determined by . . . Owens.”

The net sales proceeds were to be distributed 25% to Deborah and 75% to Mark.

      On appeal, this court modified the divorce decree to delete an award of

attorney’s fees to Mark for defending against Deborah’s tort claims.4 We affirmed

the decree as modified, upholding the family court’s finding that Deborah had

committed actual fraud on the community and stating in our opinion that in the

month after Mark admitted having an affair, Deborah “began depleting the

      2
     Logsdon v. Logsdon, No. 02-14-00045-CV, 2015 WL 7690034, at *1 (Tex.
App.—Fort Worth Nov. 25, 2015, no pet.).
      3
          Id.
      4
          Id. at *1, *12–13.


                                          2
Champion Sweeping account; she wrote backdated checks, cashed them, and

transferred the money into accounts in her name and in [her s]on’s name.”5

      Owens sold off the company’s assets by auction instead of selling

Champion Sweeping as a going concern. Owens sold the tangible assets of

Champion Sweeping for a total of $374,763.18. His office staff provided both

parties the results of the auction, with a list of the items sold and a description of

how the proceeds were to be distributed, both by line item and in toto. Champion

Sweeping’s business name, goodwill, and customer lists were not sold.

      Before the auction of Champion Sweeping’s assets, Mark formed a new

sweeping company. Mark purchased some Champion Sweeping assets at the

auction for use in his new business. Mark also kept the same cell phone and

phone number that had been acquired for Champion Sweeping for his new

business.

      At the hearing on Owens’s motion to distribute the auction proceeds,

Deborah did not complain that the Champion Sweeping name, goodwill, or

customer list had not been sold, nor did she complain that Owens had failed to

keep her informed. At the end of the hearing, the family court granted Owens’s

motion and found that he had performed his duties as receiver regarding the

auction of Champion Sweeping.




      5
          Id. at *1, *2, *5–7.


                                          3
      Deborah sued Owens and Mark. She claimed that Owens’s failure to sell

the business as a whole allowed Mark to use all the equipment and intangible

assets from Champion Sweeping for the benefit of his new business. She sued

Owens for breach of fiduciary duty, fraud, negligence, and gross negligence.

Against Mark, she asserted claims of fraud, negligence, and gross negligence.

      At a deposition, Owens, who at least at the time of the filing of his motion

for summary judgment was still the receiver concerning those “assets, financial

accounts, real and personal property and other issues” that had been placed

“under his authority,” admitted that he had “always felt that [the business] would

[have] more value if it could be sold in its entirety.” He testified that he believed

that the business had been valued at between $500,000 and $600,000, if not

more. He also testified that he did not market the business as a whole because

he was not asked to market it, he could not get a noncompetition agreement from

both Mark and Deborah when one broker showed interest, and Mark had told him

that requiring a noncompetition agreement “was traditional in their business.”

Owens admitted that he never calculated the component parts of goodwill. He

explained that he believed that Champion Sweeping lost goodwill of any value

when the trial court ordered it liquidated because it was awarded to neither party

and neither spouse would sign a noncompetition clause. While he recognized

that a customer list is a proprietary asset of a business, Owens also testified that

the Champion Sweeping customer list had very little value because “[t]he clients

would come and go.” He clarified that he did not auction the list off because it


                                         4
had no value. He later reiterated that he did not auction off the goodwill, the

company name, and the business customer list “[b]ecause they had no value.

No one would buy them.”         He based this conclusion at least in part on his

conversations with Brian Rice, the accountant retained to value the business.

      Owens filed a traditional motion for summary judgment on three grounds:

(1) he was immune from all claims and causes of action because of derived

judicial immunity, (2) Deborah suffered no harm from his actions, and (3) she

could not have justifiably relied upon any of his representations. The trial court

granted the motion without specifying the grounds. Owens filed a motion to

sever, the trial court severed Deborah’s claims against Owens into the underlying

cause, and Deborah timely appealed.

Standard of Review

      We review a summary judgment de novo.6           We consider the evidence

presented in the light most favorable to the nonmovant, crediting evidence

favorable to the nonmovant if reasonable jurors could, and disregarding evidence

contrary to the nonmovant unless reasonable jurors could not.7        We indulge

every reasonable inference and resolve any doubts in the nonmovant’s favor.8 A

defendant is entitled to summary judgment on an affirmative defense if the

      6
          Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).
      7
      Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844,
848 (Tex. 2009).
      8
          20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).


                                          5
defendant conclusively proves all the elements of the affirmative defense.9 To

accomplish this, the defendant-movant must present summary judgment

evidence that conclusively establishes each element of the affirmative defense.10

      When a trial court’s order granting summary judgment does not specify the

ground or grounds relied on for its ruling, summary judgment will be affirmed on

appeal if any of the theories presented to the trial court and preserved for

appellate review are meritorious.11

Derived Judicial Immunity

      In her first issue, Deborah contends that Owens acted outside the scope of

his authority as receiver in the divorce and that he therefore does not have

derived judicial immunity. As this court has explained in a case on point,

      When entitled to derived judicial immunity, a person appointed to
      perform services for the court receives the same absolute immunity
      from liability as a judge acting in his or her official capacity. Judicial
      immunity can attach to certain nonjudges because the policy
      reasons for judicial immunity—protection of individual judges and of
      the public’s interest in an independent judiciary are also implicated
      when judges delegate their authority, appoint another to perform
      services for the court, or allow another to otherwise serve as an
      officer of the court. In those circumstances, the immunity attaching
      to the judge follows the delegation, appointment, or court
      employment. The person acting in such a capacity thus also enjoys
      absolute immunity, which is known as derived judicial immunity.

      9
      Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508–09 (Tex. 2010), cert.
denied, 562 U.S. 1180 (2011); see Tex. R. Civ. P. 166a(b), (c).
      10
           See Chau v. Riddle, 254 S.W.3d 453, 455 (Tex. 2008).
      11
        Provident Life and Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex.
2003); Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).


                                          6
            Texas employs a “functional approach” to determine whether
      someone is entitled to derived judicial immunity. This approach
      “looks to whether the person seeking immunity is intimately
      associated with the judicial process” and whether “that person
      exercises discretionary judgment comparable to that of the judge.”
      The functional approach looks to the nature of the function
      performed, not the identity of the actor, and considers whether the
      court officer’s conduct is like that of the delegating or appointing
      judge.12

      Further, when a function is entitled to derived judicial immunity, that

absolute immunity covers “every action taken with regard to that function—

whether good or bad, honest or dishonest, well-intentioned or not.”13 Thus, the

negligence and bad-faith exceptions Deborah relies on from dated caselaw do

not exist under the current functional approach.14


      12
      Conner v. Guemez, No. 02-10-00211-CV, 2010 WL 4812991, at *3 (Tex.
App.—Fort Worth Nov. 24, 2010, no pet.) (mem. op.) (citations omitted).
      13
        B.K. v. Cox, 116 S.W.3d 351, 357 (Tex. App.—Houston [14th Dist.] 2003,
no pet.).
      14
         Compare Dillingham v. Putnam, 109 Tex. 1, 5, 14 S.W. 303, 305 (1890)
(“[A]s a defendant, a receiver is not personally liable even for costs. In case a
judgment is rendered against him, unless in cases in which his own wrong
created the liability, he is not liable personally[.]”), and Best & Russell Cigar Co.
v. William Reese Co., 210 S.W. 317, 318 (Tex. Civ. App.—Fort Worth 1919, no
writ) (“The sole liability of the receivers, except in cases in which they are
personally at fault (and nothing of that character is alleged in this suit) is official;
and when their official career ceases, and when the property delivered to them
as receivers has passed from their hands under orders of the court that
appointed them, and they have been by that court discharged from their trust,
then no judgment can be rendered against them.”), and Harrison v. Coutret, 157
S.W.2d 454, 456 (Tex. Civ. App.—San Antonio 1941, writ ref’d w.o.m.) (“[H]aving
acted within the authority given him in the order appointing him, he is not
responsible for any loss which may have accrued, unless he acted in bad faith or
failed to use ordinary care and discretion in the management of the business.”),
with Dallas Cty. v. Halsey, 87 S.W.3d 552, 554 (Tex. 2002) (“When entitled to the

                                           7
      Deborah’s reliance on Alpert v. Gerstner15 is likewise misplaced. Citing

Alpert, she argues that Owens was acting not as an arm of the court but as a

representative of Mark and her when he was ordered to sell Champion Sweeping

and that she was a beneficiary of Champion Sweeping’s liquidation. But as this

court explained in Conner, a case involving a divorced husband suing a receiver

for breach of fiduciary duty,

      In Alpert, the court had appointed Gerstner as a receiver for the
      plaintiffs’ trusts and granted him “the same powers and duties as a
      trustee.” The Alpert plaintiffs argued that Gerstner should not be
      immune from various acts because they were not normal judicial
      functions. The court determined that Gerstner was entitled to judicial
      immunity for some acts and not for others. That is, Gerstner was
      entitled to immunity “to the extent that she was authorized, as a
      receiver of the property in the Trusts, to take charge and keep
      possession of the Trust property.” But as to her actions regarding
      investing and managing the stock portfolios, “Gerstner was acting as
      a representative of the interests of the beneficiaries and not as an
      agent of the Court.” The court went on to cite a number of cases, all
      discussing the fiduciary duty that arises out of a trustee
      relationship—not, it is worth noting, arising out of a receivership.

              One of the cases Alpert cites and distinguishes is Ramirez v.
      Burnside & Rishebarger, L.L.C. In Ramirez, the plaintiff complained
      that the receiver falsely represented the condition of a house the
      plaintiff purchased from the estate. The court held that the language
      of the order, which allowed the receiver to “sell, negotiate, transfer or
      redeem any . . . real property” of the estate, was a broad grant of
      power and the receiver was immune for all acts associated with that
      duty, including “mak[ing] false promises to third parties concerning

protection of derived judicial immunity, an officer of the court receives the same
immunity as a judge acting in his or her official judicial capacity—absolute
immunity from liability for judicial acts performed within the scope of
jurisdiction.”).
      15
           232 S.W.3d 117 (Tex. App.—Houston [1st Dist.] 2006, pet. denied).


                                         8
      the property.” The language of the order granting Mr. Conner his
      powers of receiver much more closely resembles that of the Ramirez
      order than that of the Alpert order.

             In Alpert, the fiduciary duty owed by the receiver to the
      beneficiaries was not created by her appointment as receiver, but
      through the grant of power as trustee. Here, the complained-of
      actions and omissions all fall squarely under the authority delegated
      to Mr. Conner by the order appointing him receiver. The sale of the
      stores was also approved by the court in a later order, providing
      further evidence that Mr. Conner's role was as an arm of the court.16

      Likewise, the broad language of the agreed order appointing Owens the

receiver and of the divorce decree more closely resembles the Ramirez order

than the Alpert order.17 Just as the complaints about Conner concerned his

conduct as a receiver, Deborah’s complaints about Owens “all fall squarely under

the authority delegated to” Owens by the family court.18 There is no evidence

that Owens had a relationship with the Logsdons outside his role as receiver.

Finally, the family court’s finding that Owens “ha[d] performed his duties as Court

Appointed Receiver in regards to the auction of Champion Sweeping” further

supports the conclusion that Owens acted as an arm of the family court in selling

Champion Sweeping.19



      16
           Conner, 2010 WL 4812991, at *3–4 (citations omitted).
      17
        See id. at *3; Ramirez v. Burnside & Rishebarger, L.L.C., No. 04-04-
00160-CV, 2005 WL 1812595, at *2 (Tex. App.—San Antonio Aug. 3, 2005, no
pet.) (mem. op.).
      18
           See Conner, 2010 WL 4812991, at *4.
      19
           See id.


                                          9
       Owens proved as a matter of law that all of his acts and omissions

Deborah complains of occurred in his capacity as a receiver and thus in his

service as an arm of the family court.           He therefore has absolute judicial

immunity from liability.20 The trial court correctly granted summary judgment on

Owens’s affirmative defense of derived judicial immunity. We overrule Deborah’s

first issue.

Conclusion

       Because our holding on Deborah’s first issue is dispositive, we do not

reach her remaining issues.21 Having held that Owens is entitled to absolute

judicial immunity, we affirm the trial court’s judgment.




                                                      /s/ Lee Ann Dauphinot
                                                      LEE ANN DAUPHINOT
                                                      JUSTICE

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

DELIVERED: June 9, 2016




       20
            See id. at *3; see also Halsey, 87 S.W.3d at 554.
       21
            See Tex. R. App. P. 47.1.


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