                                NUMBER 13-08-194-CV

                               COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI - EDINBURG


KURT D. TUGMAN,                                                               Appellant,

                                              v.

LENNIS BENNETT TUGMAN,                                                         Appellee.


   On appeal from the 214th District Court of Nueces County, Texas.



                            MEMORANDUM OPINION

                Before Justices Rodriguez, Garza, and Benavides
                  Memorandum Opinion by Justice Benavides

          Appellant, Kurt D. Tugman, appeals the appointment of a receiver to sell Tugman’s

family residence as part of the property division in a divorce decree. By one issue,

Tugman argues that the trial court abused its discretion in appointing a receiver. We

affirm.
                                      I. BACKGROUND

       This matter arises from an acrimonious divorce proceeding between appellant, Kurt

D. Tugman, and appellee, Lennis Bennett Tugman. Appellee filed a petition to divorce

appellant on May 10, 2006. Pursuant to a stipulation made on the record in August of that

year, the parties agreed that appellee would occupy their former marital residence and that

the property would be listed for sale for a mutually agreed-upon price, with the proviso that

any sale of the property would not close and possession would not be delivered to a buyer

until on or about January 31, 2007. This was done in order to maximize tax benefits. The

parties also agreed to allow appellant sufficient time to notify his customers regarding the

sale of his home.

       The property did not sell during the pendency of the divorce proceedings. According

to an affidavit by Kim Erwin, the broker/owner of Realty World Island Properties, the house

was listed for sale on November of 2006. According to her affidavit:

       I have been a realtor for twenty-six years; I am the broker/owner of Realty
       World Island Properties. I have been selling residential property on [Padre]
       Island for sixteen years. I am familiar with the property at 13906 El Socorro
       Loop on Padre Island which has been on the market since 11/02/06. The
       house is listed on MLS and has been since its original listing. During the
       time Mr. Tugman occupied the property, I never had any difficulties arranging
       for the house to be shown and the house was in proper condition to be
       shown.

       Regarding the sale of 13906 El Socorro Loop, Corpus Christi, TX, 78418 that
       was listed for $799,900 on all three offers.

       1st offer – Offer was for $675,000. The buyers increased their offer to
       $711,000. There was a verbal conversation with the buyers at a function at
       my office, they told me that Kurt would sell the home at $725,000, but that
       they already purchased a house.

       2nd offer – Offer was for $750,000. I wrote the contract on October 11,
       2007. On Monday, October 15, 2007, the buyer withdrew his offer because


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       he did not want to wait. Lennis agreed to the price but did not sign. Kurt
       said he needed to contact his attorney. Neither party signed.

The parties’ final decree of divorce, signed on November 15, 2007, contains the following

provisions pertaining to the sale of the residence.

               IT IS FURTHER ORDERED AND DECREED that the property and all
       improvements located thereon at lot 25, block 25, COCQUINA BAY
       subdivision, according to the map, plat, or deed records of Nueces County,
       Texas, and more commonly known as 13906 El Socorro Loop, Corpus
       Christi, Nueces County, Texas, shall be sold under the following terms and
       conditions:

              1.      The parties shall list the property with a duly licensed real
                      estate broker having sales experience in the area where the
                      property is located, provided further that the real estate broker
                      shall be an active member in the Multiple Listing Service with
                      the Corpus Christi Board of Realtors.

              2.      The property shall be sold for a price that is mutually agreeable
                      to Petitioner and Respondent. If Petitioner and Respondent
                      are unable to agree on a sales price, on the application of
                      either party, the property shall be sold under terms and
                      conditions determined by a court-appointed receiver.

              3.      Respondent shall continue to make all payments of principal,
                      interest, taxes, and insurance on the property during the
                      pendency of the sale, and Respondent shall have the
                      exclusive right to enjoy the use and possession of the
                      premises until closing.

              4.      The net sales proceeds (defined as the gross sales price less
                      cost of sale and full payment of any mortgage indebtedness or
                      liens on the property) shall be distributed as follows: 50% to
                      Petitioner and 50% to Respondent.

The divorce decree specifically gave the trial court the right to enter further clarifying orders

and orders of enforcement.




                                               3
       Erwin retained the listing for the house following the entry of the divorce decree, and

her affidavit detailed a third offer on the house as follows:

       3rd offer – Offer was for $715,000 cash. Kurt countered the closing date from
       January 23, 2008 to January 28, 2008. Lennis and Kurt agreed on the sales
       price. Lennis signed the contract, but Kurt did not.

       It is unclear whether this third offer was made prior to, or after, the divorce decree

was entered. Appellee filed an emergency motion to approve a sale of the property, heard

on January 11, 2008, which appears to concern the third offer detailed above. At that

hearing, the trial court ordered the parties to consummate a sale with a third-party

purchaser if it could be accomplished. The court also gave appellant the option of

purchasing the house for $735,000. According to the trial court:

       If they’re willing to go $735,000, get a contract and sell it. If they’re not, then
       I’ll give Mr. Tugman until the 23rd to bring in a check to pay Mrs. Tugman off.
       If not, we’ll get a receiver to take over the sale.

The sale with a third-party purchaser did not take place, and appellant failed to pay

appellee by the date specified by the trial court.

       On January 31, the parties were before the trial court on an enforcement hearing,

and the parties began discussing the sale of the residence. Appellant testified that he had

obtained $50,000 from his parents to purchase the residence, but did not have the

remainder of the money that he would owe appellee for her share of the sale proceeds.

He argued that he should not have to pay appellee $67,954 because that included a share

of the escrow fees that he believed appellee should have paid pursuant to the terms of the

divorce decree.




                                               4
        The trial court directed appellant to pay appellee $50,000 and give her $12,500 from

a retirement account, which had allegedly not been divided in earlier proceedings.1

Appellant told the trial court that “I cannot put [my parents’] money on the line if I can’t

afford to pay the bills.” The trial court told appellant that “it’s going to be one or the other.

That, or Mr. Mark Giles will be the receiver and he will sell this house immediately.” The

trial court imposed a new deadline of February 15 and told appellant to vacate the house

as of that date.

        The sale to appellant was not consummated by February 15. Some of the facts

relating to this failed purchase are in dispute. It is clear that appellant left the $50,000

check at the title company and executed documents for the transfer of the retirement

funds. Appellant alleges that appellee failed to complete the transaction, and appellee

argues that appellant failed to complete the transaction. Appellant’s own argument and

evidence on this issue is conflicting. Appellant contends that appellee failed and refused

to execute the deed and release because she remained liable on the note for the house.

While appellant’s counsel suggested escrowing the deed, appellant refused and

“instructed Security [T]itle not to release the check” because his parents found this solution

unacceptable.

        On March 6, the trial court held a hearing and executed the order, subject to appeal

herein, appointing Mark Giles as receiver. Giles ordered appellant to vacate the residence

and listed the property for sale. Giles obtained a contract for the sale of the home which

was set to close on March 15.



        1
         W e note that the division of m arital property was not challenged on appeal following entry of the final
decree of divorce, and we do not express any opinion herein regarding the division of the m arital estate.

                                                        5
        On April 1, the trial court held a hearing on appellant’s emergency motion to oppose

the appointment of a receiver and to enforce the sale of property. Stating that he had

terminated his counsel, appellant appeared and argued his motion pro se.2 The trial court

denied appellant’s motion.

        After retaining appellate counsel, appellant filed a notice of appeal and filed a

motion for temporary orders asking this Court (1) to allow him to move back into the family

residence, and (2) to stay the sale of that property, scheduled for May 15, 2008, until

disposition of this interlocutory appeal. This Court granted the motion, in part, and ordered

stayed the sale of real property scheduled for May 15, 2008 until further order of this Court,

and denied the motion insofar as appellant sought to resume residence in the subject

property. Appellant also filed an emergency motion to expedite decision on appellant’s

motion for temporary orders, which we granted. We further ordered an expedited briefing

schedule.3

                                             II. JURISDICTION

        As a threshold matter, we address appellee’s motion to dismiss this appeal.

Appellee complains that we lack jurisdiction over this matter because appellant is making

an impermissible collateral attack on the final decree of divorce and that this is not an

interlocutory appeal.




        2
           Appellant has been represented by a series of different counsel at varying tim es during the course
of this proceeding.

        3
           Appellee’s brief was received after business hours on the date it was due to be filed in this Court.
After review and consideration, the Court grants appellee’s request to consider her brief and orders the sam e
filed herein. The brief is substantially not in com pliance with the appellate rules of procedure; however, the
Court accepts it for filing given the exigent nature of the case and the circum stances of its filing.

                                                      6
       As a general rule, only final judgments are appealable. See TEX . CIV. PRAC . & REM .

CODE ANN . § 51.012 (Vernon 1997). One exception to this rule is an interlocutory order

“[appointing] a receiver or trustee.” See id. § 51.014(a)(1) (Vernon Supp. 2007). We

construe this exception strictly because it “is a narrow exception to the general rule that

only final judgments and orders are appealable.” See Montgomery County v. Fuqua, 22

S.W.3d 662, 665 (Tex. App.–Beaumont 2000, pet. denied) (quoting Tex. Dep't of Transp.

v. City of Sunset Valley, 8 S.W.3d 727, 730 (Tex. App.–Austin 1999, no pet.)).

       Appellant’s sole issue on appeal pertains not to the divorce decree but to the trial

court’s appointment of a receiver. Because appellant challenges the appointment of a

receiver, the trial court's order is appealable. See TEX . CIV. PRAC . & REM . CODE ANN . §

51.014(a)(1); see also Edmonds v. Gray, No. 12-07-00258-CV, 2008 Tex. App. LEXIS

1520, at *10 (Tex. App.–Tyler Feb. 29, 2008, no pet.) (mem. op.). Accordingly, we overrule

appellee’s motion to dismiss the appeal.

                             III. APPOINTMENT OF A RECEIVER

       The court that rendered the decree of divorce retains the power to enforce the

property division. TEX . FAM . CODE ANN . § 9.002 (Vernon 2006). A court may render further

orders to enforce the division of property made in the decree of divorce to assist in the

implementation of or to clarify the prior order. Id. § 9.006(a) (Vernon 2006). However, a

court may not amend, modify, alter, or change the division of property made or approved

in the decree of divorce. Id. § 9.007(a) (Vernon 2006). Such orders may more precisely

specify the manner of carrying out the property division previously ordered. Dechon v.

Dechon, 909 S.W.2d 950, 956 (Tex. App.–El Paso 1995, no writ).




                                             7
       Section 7.001 of the Texas Family Code grants a trial court broad authority to divide

marital property in a manner that it deems just and right upon the dissolution of marriage.

TEX . FAM . CODE ANN . § 7.001 (Vernon 2006); Rusk v. Rusk, 5 S.W.3d 299, 306 (Tex.

App.–Houston [14th Dist.] 1999, pet. denied). That broad authority sometimes includes

the power to enlist the aid of a receiver to effectuate the trial court's orders and judgments.

Rusk, 5 S.W.3d at 306-07.

       In this case, the trial court, as the court that rendered the divorce decree, retained

the power to enforce the property division. See TEX . FAM . CODE ANN . § 9.002. Both parties

agreed, in pretrial hearings and in the divorce decree, that their residence would be sold

for a mutually agreed upon price. We cannot conclude that appointment of a receiver

amends, modifies, or alters the substantive division of property. See id. § 9.007(a).

Rather, the appointment of a receiver simply specifies the precise manner of carrying out

the property division previously ordered, i.e., the sale of the property. See Rusk, 5 S.W.3d

at 306; Dechon, 909 S.W.2d at 956. Because the appointment of a receiver does not

amend, modify, alter, or change the substantive division of property in the divorce decree,

the trial court had the power to appoint a receiver.

                                 IV. STANDARD OF REVIEW

       Receivership is an extraordinarily harsh remedy and one that courts are particularly

loathe to utilize. Rusk, 5 S.W.3d at 306. However, a trial court has broad powers to enlist

the aid of a receiver in order to effectuate its orders and judgments. Vannerson v.

Vannerson, 857 S.W.2d 659, 673 (Tex. App.–Houston [1st Dist.] 1993, writ denied). We

review an appointment of a receiver for an abuse of discretion. Sheikh v. Sheikh, 248

S.W.3d 381, 386 (Tex. App.–Houston [1st Dist.] 2007, no pet.); Moyer v. Moyer, 183


                                              8
S.W.3d 48, 51 (Tex .App.–Austin 2005, no pet.); Vannerson, 857 S.W.2d at 673. The test

for abuse of discretion is whether the court acted without reference to any guiding rules

and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985).

In other words, we must determine whether the act was arbitrary or unreasonable. Id. at

242. The mere fact that a trial court may decide a matter within its discretionary authority

in a manner different from that of an appellate judge in a similar circumstance does not

demonstrate that an abuse of discretion has occurred. Id.

       Under the abuse of discretion standard, neither legal nor factual insufficiency are

independent reversible grounds, but are relevant in assessing whether the trial court

abused its discretion. In re L.R.P., 98 S.W.3d 312, 313 (Tex. App.–Houston [1st Dist.]

2003, pet. dism'd); Farish v. Farish, 921 S.W.2d 538, 542 (Tex. App.–Beaumont 1996, no

writ). In making this determination, the reviewing court must view the evidence in the light

most favorable to the actions of the trial court and indulge every legal presumption in favor

of the judgment. Nordstrom v. Nordstrom, 965 S.W.2d 575, 578 (Tex. App.–Houston [1st

Dist.] 1997, pet. denied); In re S.B.C., 952 S.W.2d 15, 17-18 (Tex. App.–San Antonio

1997, no writ). If there is some evidence of a substantive and probative character to

support the judgment, the trial court did not abuse its discretion. Nordstrom, 965 S.W.2d

at 578; In re S.B.C., 952 S.W.2d at 18.

                                       V. ANALYSIS

       Appellant contends that the trial court erred in appointing a receiver because it did

so based on the argument of counsel without sufficient evidentiary support. See Norem

v. Norem, 105 S.W.3d 213, 216 (Tex. App.–Dallas 2003, no pet.) (holding that an

appointment of a receiver under the family code requires evidence that the receivership is


                                             9
for the protection and preservation of the marital estate); see also Stoker v. Stoker, No. 12-

07-00334-CV, 2008 Tex. App. LEXIS 3455, at *4-*6 (Tex. App.–Tyler May 14, 2008, no

pet. h.) (mem. op.) (collecting and analyzing cases and concluding that “there remains

some commonality to the analysis with regard to the requirement that the order appointing

a receiver must be supported by evidence of some sort”).

       While we agree with appellant that several of the hearings before the trial court

consisted solely of the arguments of counsel, we nevertheless determine that the trial court

had before it sufficient evidence to support its order appointing a receiver. The record

contains: (1) affidavit testimony from appellant, Erwin, and others; (2) the stipulation

entered by the parties on the record regarding the sale of the property; and (3) sworn

testimony offered by appellant himself. Accordingly, we conclude that the trial court’s order

appointing a receiver was not devoid of evidentiary support.

       Appellant further contends that the trial court established the terms under which

appellant could purchase the residence, and appellant fully complied with the court’s

requirements. According to appellant, the trial court merely ordered him to pay appellee

$50,000 and give her $12,500 from an undivided retirement fund before February 15,

2008. Appellant argues that he complied with these requirements, and there is no

evidence to the contrary. Based on the evidence previously recounted herein, we disagree

with appellant’s contention. Moreover, it is undisputed that the parties were unable or

unwilling to complete the transaction as contemplated by February 15, and the property

remains unsold to date.




                                             10
         In the instant case, the parties stipulated in August 2006, that the property would

be listed for sale and sold for a mutually agreeable price. The divorce decree itself

provides that the property would be listed and sold for a mutually agreeable price. The

decree also states, without further detail, that if appellant and appellee “are unable to agree

on a sales price, on the application of either party, the property shall be sold under terms

and conditions determined by a court-appointed receiver.”

       The residence has been on the market for approximately eighteen months, and

there have been at least four offers from third parties to purchase the property. Appellant

and appellee have failed to complete any of those transactions. Further, based on the

record before this Court, the trial court gave appellant two separate opportunities to

purchase the property. The trial court first ordered appellant to pay appellee for the

property by January 23, and appellant failed to do so. The trial court again allowed

appellant an opportunity to purchase the property by February 15, but as detailed above,

appellant again failed to complete the purchase. Based on the foregoing, we conclude that

the trial court gave the parties a reasonable period of time within which to complete the

sale of their former residence. See Cherco Prop., Inc. v. Law, Snakard & Gambill, 985

S.W.2d 262, 266 (Tex. App.–Fort Worth 1999, no pet.) (stating that where a contract does

not specify the time for performance, the law will imply a reasonable time). The trial court

did not abuse its discretion in appointing a receiver to sell the property.

                                      VI. CONCLUSION

       Because there was some evidence of a substantive and probative character to

support the trial court's order appointing a receiver, the trial court did not abuse its

discretion.   See Nordstrom, 965 S.W.2d at 578; In re S.B.C., 952 S.W.2d at 18.


                                              11
Accordingly, we overrule appellant’s sole issue on appeal and lift the stay previously

ordered by this Court. The order of the trial court is affirmed.


                                                        _____________________________
                                                        GINA M. BENAVIDES,
                                                        Justice

Memorandum Opinion delivered and
filed this the 22nd day of May, 2008.




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