Opinion issued June 6, 2013.




                                     In The

                               Court of Appeals
                                    For The

                          First District of Texas
                           ————————————
                               NO. 01-12-00194-CV
                           ———————————
       GERARD GUERINOT AND BETTE GUERINOT, Appellants
                                        V.
                       DONNA WETHERELL, Appellee



                   On Appeal from the 190th District Court
                            Harris County, Texas
                      Trial Court Case No. 2007-53957



                         MEMORANDUM OPINION

      The trial court granted Donna Wetherell’s application for a turnover order to

aid in the enforcement of a default judgment against Gerard and Bette Guerinot.

On the Guerinots’ appeal, we determine whether (1) the Guerinots properly
invoked this Court’s appellate jurisdiction by filing a timely notice of appeal, (2)

the trial court had jurisdiction to issue the turnover order, and if so, (3) the trial

court erred by issuing the turnover order. Concluding that the record does not

support the trial court’s issuance of the turnover order against the Guerinots, we

vacate the order.

                                    Background

      Donna Wetherell obtained a default judgment against her brother, Gerard

Guerinot, and his wife, Bette Guerinot, arising from Gerard’s breach of a

promissory note. According to Wetherell, the dispute underlying the promissory

note concerned the administration of the estate of her mother, Mary Louise

Guerinot. The Guerinots did not challenge the default judgment by appeal,

restricted appeal, or bill of review. When the default judgment went unsatisfied,

Wetherell applied for a turnover order in the same court that rendered the default

judgment. The Guerinots filed a response to the turnover application, challenging

the propriety of the default judgment on the basis that Wetherell obtained it

through fraud.

      After a hearing on the turnover application, the trial court found that

Wetherell was a judgment creditor with a judgment in the amount of $55,371.47

against the Guerinots that remained wholly unsatisfied; Gerard had a one-half

beneficiary interest in the estates of his parents, Walter C. Guerinot and Mary


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Louise Guerinot; and money was held in the name of Gerard, Bette, Walter, and

Mary Louise in the Unclaimed Property Funds of Texas and New York. The trial

court then ordered the Guerinots to (1) “turnover their interest to the [unclaimed

funds], which interest totals approximately $17,165.77 (100% interest in $1,104.14

[the monies held in the Guerinots’ own names] and 50% interest in $32,123.26 [the

monies held in the names of Gerard’s deceased parents]) in Texas, as well as an

unknown amount in New York” and (2) “execute any and all documents required

by the entity holding the above funds . . . in order to allow such funds to be

transferred from the entities currently holding them to [Wetherell].” This appeal

followed.

                                    Jurisdiction

      At the outset, the Guerinots raise two jurisdictional issues. Their first issue

regards the timeliness of their notice of appeal and thus implicates our jurisdiction

to review the trial court’s turnover order. Their second issue relates to the

jurisdiction of the trial court to enter the turnover order. We overrule both of these

issues for the following reasons.

A.    Appellate court jurisdiction

      The Guerinots first complain that the trial court erred in designating the

turnover order as an interlocutory order from which an appeal had to be taken

under the accelerated deadline stated in rule 26.1(b) of the Texas Rules of


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Appellate Procedure. See TEX. R. APP. P. 26.1(b) (establishing 20-day deadline for

filing notice of accelerated appeal). According to the Guerinots, the turnover order

constitutes a final judgment that was subject to challenge under the rules governing

ordinary appeals. See TEX. R. APP. P. 26.1 (establishing 30-day deadline for filing

notice of ordinary appeal).

      The basis for the Guerinots’ complaint is not clear; the order itself does not

state that it is interlocutory, and the trial court did not make any oral

pronouncements regarding the character of the order at the turnover hearing. Thus,

we do not find any reason to declare error on the trial court’s part. Moreover, the

Guerinots’ notice of appeal invoking this Court’s jurisdiction was not untimely. It

is settled that a turnover order is a final, appealable judgment. Schultz v. Fifth

Judicial Dist. Court of Appeals at Dallas, 810 S.W.2d 738, 740 (Tex. 1991)

(holding that court of appeals had jurisdiction to hear contempt motion for

violation of turnover order because order entered pursuant to turnover statute, like

mandatory injunction, is final judgment), abrogated on other grounds by In re

Sheshtawy, 154 S.W.3d 114 (Tex. 2004); see also Burns v. Miller, Hiersche,

Martens & Hayward, P.C., 909 S.W.2d 505, 506 (Tex. 1995) (per curiam)

(holding that appellate court erred in applying interlocutory appellate deadlines to

appeal from turnover order “because a turnover order is a final, appealable

judgment”). Because the Guerinots filed their notice of appeal within the thirty

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days permitted by the rule governing ordinary appeals from a final judgment, this

Court has jurisdiction over their appeal. See TEX. R. APP. P. 26.1; see also Burns,

909 S.W.2d at 506.

B.    Trial court jurisdiction

      The Guerinots next complain that the trial court was without jurisdiction to

enter the turnover order because the underlying default judgment is void due to the

trial court’s failure to recite the basis of its jurisdiction on the face of the judgment.

The Guerinots assert that because the default judgment does not recite the basis for

the trial court’s jurisdiction, we should consider extrinsic evidence that Wetherell

fraudulently obtained the default judgment.

      A judgment is void only when it is apparent that the court rendering

judgment “had no jurisdiction of the parties or property, no jurisdiction of the

subject matter, no jurisdiction to enter the particular judgment, or no capacity to act

as a court.” Browning v. Placke, 698 S.W.2d 362, 363 (Tex.1985). Jurisdictional

recitations in a judgment that is regular on its face import absolute verity and can

be attacked only directly by appeal, writ of error, or bill of review, not collaterally

as the Guerinots attempt here. Akers v. Simpson, 445 S.W.2d 957, 959 (Tex. 1969);

Solomon, Lambert, Roth & Assocs., Inc. v. Kidd, 904 S.W.2d 896, 900 (Tex.

App.—Houston [1st Dist.] 1995, no writ). Even “‘when the recitations of the

judgment on a particular subject are insufficient affirmatively to show jurisdiction,


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so long as they do not show affirmatively a lack of jurisdiction, the usual

presumption in favor of the judgment prevails.’” Kidd, 904 S.W.2d at 901 (quoting

Huffstutlar v. Koons, 789 S.W.2d 707, 710 (Tex. App.—Dallas 1990, no writ)).

      The default judgment in this case neither expressly states the basis for the

trial court’s jurisdiction, nor affirmatively demonstrates the absence of jurisdiction.

On its face, the default judgment recites that the Guerinots were duly served, they

failed to appear and answer, and Wetherell was entitled to judgment in an amount

in excess of the minimum jurisdictional limits of the trial court. Because the

default judgment under attack does not affirmatively show a lack of jurisdiction, a

presumption of jurisdiction applies and the Guerinots’ complaints about the merits

of the default judgment fail. See id.

                                  Turnover Order

      The Guerinots’ remaining issues pertain to the trial court’s ruling under the

turnover statute. The turnover statute, section 31.002 of the Civil Practice and

Remedies Code, entitled “Collection of Judgment Through Court Proceeding,” is a

procedural device that assists judgment creditors in reaching a judgment debtor’s

property that is not easily seized by the more typical post-judgment procedures of

execution or garnishment. See TEX. CIV. PRAC. & REM. CODE ANN. § 31.002 (West

2008). Although the Guerinots assert a number of challenges to the trial court’s

turnover order, we address only one challenge―the absence of evidence to


                                          6
indicate that the Guerinots owned any nonexempt property that could not be

readily attached or levied on by ordinary legal process and thus was subject to

turnover―because it is dispositive of this appeal.1

A.    Standard of review

      The issuance of a turnover order is reviewed for abuse of discretion.

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 we examine in assessing

whether the trial court abused its discretion. Tanner v. McCarthy, 274 S.W.3d 311,

322 (Tex. App.—Houston [1st Dist.] 2008, no pet.); Jones v. Am. Airlines, Inc.,

131 S.W.3d 261, 266 (Tex. App.—Fort Worth 2004, no pet.). A trial 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.

We will not reverse if there is some evidence of a substantive and probative

character to support the trial court’s decision. Burns v. Miller, Hiersche, Martens

& Hayward, P.C., 948 S.W.2d 317, 324 (Tex. App.―Dallas 1997, pet. denied);

Tanner, 274 S.W.3d at 321−22.

1
      The arguments we do not reach include the Guerinots’ assertions that the trial
      court erred by (1) subjecting unidentified and undetermined interests in property to
      turnover; (2) requiring the direct transfer of property to Wetherell, rather than to a
      constable, the court’s registry, or some other third-party intermediary; and (3)
      failing to make a finding that the property ordered to be turned over by third
      parties was subject to the Guerinots’ control.
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B.    Lack of evidence to support turnover

      As part of their third issue, the Guerinots argue the trial court abused its

discretion in entering a turnover order because Wetherell did not present sufficient

evidence of the conditions pursuant to which a judgment creditor may receive aid

under the statute, namely, that the Guerinots owned any nonexempt property that

could not be readily attached or levied on by ordinary legal process.

      The turnover statute provides in subsection (b) that to aid a judgment

creditor in the collection of an unsatisfied judgment, a trial court may:

         (1) order the judgment debtor to turn over nonexempt property that
      is in the debtor’s possession or is subject to the debtor’s control,
      together with all documents or records related to the property, to a
      designated sheriff or constable for execution;

         (2) otherwise apply the property to the satisfaction of the
      judgment; or

         (3) appoint a receiver with the authority to take possession of the
      nonexempt property, sell it, and pay the proceeds to the judgment
      creditor to the extent required to satisfy the judgment.

TEX. CIV. PRAC. & REM. CODE ANN. § 31.002(b).

      The relief allowed in subsection (b) may be granted only when the

conditions in subsection (a) exist. Tanner, 274 S.W.3d at 322. Under subsection

(a), a judgment creditor may receive aid from the trial court only if the judgment

debtor owns property that is nonexempt and that could not readily be attached or

levied on by ordinary legal process. TEX. CIV. PRAC. & REM. CODE ANN.


                                          8
§ 31.002(a). Conversely then, a judgment creditor may not receive aid from the

court under section 31.002 if the judgment debtor does not own nonexempt

property that could not readily be attached or levied on by ordinary legal process.

Id.; see Tanner, 274 S.W.3d at 322 (listing elements of obtaining relief under

section 31.002(b), including proof that judgment debtor owns property that (1)

cannot be readily attached or levied on by ordinary legal process and (2) is not

exempt from attachment, execution, or seizure for satisfaction of liabilities).

      Section 31.002 does not specify the manner in which evidence may be

received in order for a trial court to determine whether the conditions of section

subsection (a) exist, or state the form, level of specificity, or quantum of the

evidence. Tanner, 274 S.W.3d at 322. However, a trial court must determine that a

pending request for aid falls within the scope of section 31.002 before it enters an

order granting relief under that section. See Main Place Custom Homes, Inc. v.

Honaker, 192 S.W.3d 604, 628 (Tex. App.—Fort Worth 2006, pet. denied)

(explaining that turnover statute does not require notice and hearing, but “a factual

showing that the judgment debtor has nonexempt property that is not readily

subject to ordinary execution is of particular importance in applying section

31.002.”). In making this determination, the trial court must have some evidence

before it that establishes the existence of the conditions necessary for section

31.002’s application. Tanner, 274 S.W.3d at 322; Schultz, 810 S.W.2d at 740

                                          9
(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 Buller, 806 S.W.2d at 226 (holding that lack

of evidence to support turnover order is relevant consideration in determining

whether trial court abused its discretion in entering order).

      The order in this case subjected two general categories of property to

turnover: (1) monies held by the Texas Comptroller in the Texas Unclaimed

Property Fund in the Guerinots’ own names and (2) monies held by the Texas

Comptroller and the New York State Comptroller in their respective state’s

Unclaimed Property Funds in the names of Walter C. Guerinot, Mary Louise

Guerinot, and Mary L. Sullivan. Regarding this property, Wetherell’s application

for turnover recites:

      Defendant Gerard Guerinot is believed to be a beneficiary, heir, or
      assignee of rights with respect to any remaining assets of the estates of
      Walter C. Guerinot and Mary Louise Guerinot. It is believed that
      Plaintiff Donna Wetherell has a one-fourth beneficiary interest in the
      estates of Walter C. Guerinot and Mary Louise Guerinot; that Debtor
      Gerard Guerinot has a one-half beneficiary interest in the estates of
      Walter C. Guerinot and Mary Louise Guerinot (his one-fourth interest
      plus the one-fourth interest of his sister Eileen Moen believed to be
      previously assigned to him); and that the heirs of Joseph Guerinot
      have a one-fourth beneficiary interest in the estates of Walter C.
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      Guerinot and Mary Louise Guerinot. Such remaining assets may
      include “Unclaimed Property” held by the State of Texas, State of
      California, State of New York, or any other government or business
      entity, and specifically those identified hereto in Exhibit A.

      As stated in the motion, Wetherell attached a single exhibit―Exhibit A― in

support of the recitations in her application for the turnover order. The exhibit

appears to be a copy of information from the Texas Comptroller’s website listing

the property held in the Texas Unclaimed Property Fund in the names of Gerard,

Bette, Walter, and Mary Louise. Wetherell, however, did not introduce the exhibit

into evidence during the hearing on her turnover application, or offer any

testimonial or other documentary evidence at the hearing to support her assertions

of Gerard’s interest as a beneficiary to his parents’ estate or the monies in the New

York Unclaimed Property Fund.

      Documents attached to pleadings are not evidence unless they are offered

and admitted as evidence by the trial court. See Atchison v. Weingarten Realty

Mgmt. Co., 916 S.W.2d 74, 76−77 (Tex. App.―Houston [1st Dist.] 1996, no pet.)

(observing that mere physical presence of document in clerk’s record does not

allow appellate court to consider document that is otherwise not properly part of

appellate record); cf. Tanner, 274 S.W.3d at 323 (holding that trial court erred by

ordering turnover because application adduced no evidence, by affidavit or

otherwise, that would have provided trial court basis for concluding debtor owned

nonexempt property subject to turnover); City of Galveston v. Shu, 607 S.W.2d
                                         11
942, 944 (Tex. Civ. App.―Houston [1st Dist.] 1980, no writ) (summary judgment

affidavits and evidence were not admitted at trial, and on appeal from trial on

merits, appellate court cannot consider summary judgment evidence that was not

admitted in evidence at trial); Am. Fire & Indem. Co. v. Jones, 828 S.W.2d 767,

769 (Tex. App.―Texarkana 1992, writ denied) (document assigning rights in truck

was attached to pleadings, but was not introduced into evidence; therefore, no

evidence in record supported trial court’s finding of ownership); see also El Paso

Field Servs. Mgmt., Inc. v. Lopez, No. 01-07-00999-CV, 2010 WL 2133885, at *5

n.6 (Tex. App.—Houston [1st Dist.], no pet.) (mem. op.) (refusing to consider

evidence attached to motion to modify judgment that was not admitted during

hearing on motion). Simply attaching a document to a pleading neither makes the

document admissible as evidence nor dispenses with proper foundational

evidentiary requirements. Accordingly, because Wetherell did not offer the exhibit

into evidence at the hearing, she did not meet her burden of proving that the

Guerinots owned any property subject to turnover under section 31.002.

      Wetherell argues that the trial court’s turnover order nonetheless can be

sustained based on the admissions contained in the Guerinots’ response to her

application. Specifically, Wetherell contends that the Guerinots’ response and the

exhibits attached to the response constitute binding admissions of Gerard’s interest

as a beneficiary of Mary Louise’s estate. Even had the exhibits attached to the

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Guerinots’ response been admitted into evidence at the hearing on the turnover

application, they do not provide a substantive basis for the trial court’s ruling. The

order admitting Mary Louise’s will to probate as a muniment of title and the rule

11 agreement resolving the dispute regarding the administration of Mary Louise’s

estate establish only that Mary Louise had four children, including Wetherell and

Gerard, each of whom had some interest in her estate. The documents do not

specify what those interests are, or provide any indication of Gerard’s interest in

the estate of his father, Walter. In addition, these documents are not any evidence

of the ownership of the property made subject to turnover, i.e., the amounts in the

Unclaimed Property Funds of Texas and New York. Thus, there is no evidence to

indicate that the Guerinots owned any nonexempt property that could not be

readily attached or levied on by ordinary legal process.

      Although a challenge to the lack of evidence is ordinarily not an independent

basis of error, see Jones, 131 S.W.3d at 266, this record does not contain any

evidence of a substantive or probative character on which the trial court’s turnover

order can be sustained. See Tanner, 274 S.W.3d at 322. Accordingly, we hold that

the trial court abused its discretion in entering the turnover order, and we sustain

the Guerinots’ third issue.




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                                  Conclusion

      Having found that the trial court erred in entering the turnover order, we

vacate the turnover order.




                                            Harvey Brown
                                            Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.




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