        TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-00-00021-CV



                                Janice Suzanne Allen, Appellant

                                                v.

                     Benson A. E. Bentzin and Joan S. Bentzin, Appellees



       FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
        NO. 96-11523, HONORABLE CHARLES F. CAMPBELL, JR., JUDGE PRESIDING




               Appellant Janice Suzanne Allen appeals from the district court’s order directing her

to turn over more than $18,000 in assets to satisfy a judgment rendered against her in favor of

appellees Benson and Joan Bentzin. We will affirm.

               This suit arises out of a dispute between neighbors. Allen owned lots nineteen,

twenty, and twenty-four in a subdivision in Travis County.1 Frank and Aline Fagan owned lots

twenty-one and twenty-three, which were adjacent and contiguous to Allen’s lots. In October 1995,

the Fagans sold one of their lots to the Bentzins. In September 1996, following several disputes

concerning a property easement, Allen sued the Fagans and the Bentzins. The Fagans filed a motion

for summary judgment, and on April 28, 1997, the district court signed an order granting their

motion; the order was filed with the district clerk on May 1, 1997. The order states that the court



   1
     Sometime after the beginning of this suit, Allen sold lot twenty-four, which included a house,
for $915,323.
heard “the Motion for Summary Judgment filed by Defendants Frank Fagan and Aline Fagan,”

granted the motion, ordering that Allen “take nothing in her suit against Frank Fagan and Aline

Fagan.” The order concludes, “All other relief not expressly granted is denied.”2

               On October 17, 1997, Allen filed a motion for clarification of the April 1997 summary

judgment, asking whether the Mother Hubbard clause had the effect of disposing of all of the claims

in the suit or only of Allen’s claims against the Fagans. On November 12, 1997, the district court

signed an order clarifying that the earlier summary judgment disposed only of the claims between

Allen and the Fagans and severing that portion of the lawsuit into a separate action in which the

summary judgment was a final judgment. The Bentzins and Allen continued to litigate the remaining

issues, with Allen filing an amended petition and agreeing to a pretrial scheduling order. On February

24, 1999, the district court signed a final order disposing of the remaining issues and parties and

ordering Allen to pay the Bentzins $18,000. After a hearing on December 23, 1999 (the turnover

hearing), the district court signed the order from which Allen appeals, ordering her to turn over assets

to satisfy the $18,000 judgment (the turnover order).

                In her first point of error, Allen argues that the inclusion of the Mother Hubbard clause

in the May 1996 summary judgment rendered it a final judgment and disposed of all issues and parties

in the case. Therefore, she contends, the turnover order was void. We disagree.

                When a summary judgment order appears to be final by its use of language purporting

to dispose of all claims and parties, that judgment should be treated as final for purposes of appeal.




   2
    Such language is commonly referred to as a “Mother Hubbard” clause. Mafrige v. Ross, 866
S.W.2d 590, 590 n.1 (Tex. 1993).

                                                   2
Mafrige v. Ross, 866 S.W.2d 590, 592 (Tex. 1993). This does not mean that any order granting

summary judgment that contains a Mother Hubbard clause is automatically considered a final

judgment with regard to all claims and parties to a suit. Whether an order granting summary

judgment is considered a final judgment is determined by the language of the order, the record, and

the parties’ conduct. Continental Airlines, Inc. v. Kiefer, 920 S.W.2d 274, 277 (Tex. 1996).

                  In this case, the order granting summary judgment, while containing Mother Hubbard

language, references only the motion for summary judgment filed by the Fagans, and recites that the

Fagans’ motion should be granted and that Allen should take nothing against the Fagans. The order

does not reference the remaining parties or claims which were not addressed by the Fagans’ motion

for summary judgment. Allen and the Bentzins continued to litigate the remaining claims, and Allen

asked for and received clarification from the district court that the order granting the Fagans’

summary judgment was not a final judgment. Viewing the record, order, and the parties’ conduct,

we think it is clear that the May 1997 order was not intended to be a final judgment. Kiefer, 920

S.W.2d at 277. The Mother Hubbard language in the order disposed only of the claims against the

Fagans and does not clearly evidence an intent to dispose of other parties or claims not addressed by

the Fagans’ motion for summary judgment. Vanderwiele v. Llano Trucks, Inc., 885 S.W.2d 843, 845

(Tex. App.—Austin 1994, no writ). Thus, the May 1997 order was not a final judgment, and actions

taken by the district court after the entry of that judgment are not void. Id. We overrule Allen’s first

point of error.

                  In her second point of error, Allen contends there is no evidence to support the

turnover order.



                                                   3
                A judgment creditor may turn to the courts to obtain satisfaction of the judgment if

the judgment debtor owns property that cannot readily be reached by ordinary legal processes and

is not exempt from attachment, execution, or seizure for satisfaction of debts. Tex. Civ. Prac. &

Rem. Code Ann. § 31.002(a) (West Supp. 2000). Except in certain circumstances, a court may not

order the turnover of property exempt under any statute, such as paychecks, retirement checks, and

various personal property exempted under chapter 42 of the Texas Property Code. Id. § 31.002(f);

Tex. Prop. Code Ann. §§ 42.001-.005 (West 2000); Caulley v. Caulley, 806 S.W.2d 795, 797-98

(Tex. 1991). A turnover proceeding is intended to determine whether an asset is in the possession

or under the control of the debtor. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 227 (Tex.

1991). The party claiming that property is exempt from court-ordered turnover has the burden of

proving the exemption. Jacobs v. Adams, 874 S.W.2d 166, 167 (Tex. App.—Houston [14th Dist.]

1994, no writ); Rucker v. Rucker, 810 S.W.2d 793, 795-96 (Tex. App.—Houston [14th Dist.] 1991,

writ denied).

                We review a turnover order under an abuse of discretion standard. Buller, 806

S.W.2d at 226; Parks v. Parker, 957 S.W.2d 666, 667 (Tex. App.—Austin 1997, no pet.). We will

not reverse a trial court’s decision unless the court acted in an unreasonable or arbitrary manner or

without reference to any guiding rules or principles. Buller, 806 S.W.2d at 226; Parks, 957 S.W.2d

at 668. Whether a turnover order is supported by evidence is a relevant consideration in determining

if a trial court abused its discretion. Buller, 806 S.W.2d at 226; Parks, 957 S.W.2d at 668. Even a




                                                 4
turnover order predicated on an incorrect conclusion of law will not be reversed if it is sustainable

for any reason. Buller, 806 S.W.2d at 226. 3

               Allen was the only witness to testify at the turnover hearing. She testified that she had

established a revocable living trust and had transferred all of her property into the trust. She stated

she did not own any property outside of the assets transferred into the trust. Allen is the trustee and

has the power to buy and sell trust properties. Allen’s three adult children are beneficiaries of the

trust. Included in the trust are payments of $7,000 Allen receives each month in payment of the

$915,323 note owed to her by the buyer of her house (the note), all of Allen’s personal possessions,

a mutual fund account, her art collection, and three lots of real estate. Allen stated her main source

of support is from the note. She said each $7,000 monthly payment “goes into the trust, and I—I use

it as a checking account.” She uses the trust as a checking account to pay all bills for her personal

needs. Allen stated that other than the trust, she had no other means to pay the Bentzins’ judgment.

Allen signed the instrument creating the trust on January 21, 1999, to be effective as of November

10, 1998. Allen testified as follows:


       Bentzins’ attorney: [I]t was your intent to transfer all of your property into the trust,
       correct?




  3
     Allen cites Herschbach v. City of Corpus Christi, 883 S.W.2d 720 (Tex. App.—Corpus Christi
1994, writ denied), for the proposition that a judgment unsupported by evidence cannot stand. In
Herschbach, the trial court stated that plaintiffs’ counsel had conceded two causes of action, but the
evidence indicated and the appellate court held that no such concession had been made. Id. at 734.
However, Herschbach concerned a summary judgment, which is reviewed under a different standard
than are turnover orders. As noted above, a turnover order is reviewed for an abuse of discretion and
whether the order is supported by evidence is simply a factor to be considered. Buller, 806 S.W.2d
at 226; Parks, 957 S.W.2d at 668.

                                                  5
        Allen: Yes.

        Bentzins’ attorney: To make sure there was nothing left.

        Allen: To protect — Yeah, for protection —

        Bentzins’ attorney: That’s right.

        Allen: — for my children.


                On cross examination by her own attorney, Allen said that she had control over the

trust’s checking account and that she believed “revocable” meant she had the authority to use the

trust. She stated she began working on the trust in 1994 or 1995, when she attempted to create a

trust by herself. She later dissolved her self-created trust and had an attorney draw up the current

trust documents. Allen said the only reason she created the trust is because she believed it would

protect her assets upon her death for the benefit of her children.

                While Allen is correct that she did not testify as to some of the findings recited in the

turnover order, that by itself does not mean that the turnover order must be struck down.4 Allen

testified that she had transferred all of her assets into the trust to protect them. She stated she did not

own any property outside of the trust. She stated she used the trust as a checking account for her

own expenses. While Allen did testify that she had tried to establish a trust long before the entry of

the judgment against her, the district court as the fact finder at the hearing was not obligated to




   4
     The turnover order states that Allen had refused to fully answer discovery propounded by the
Bentzins and refers to Travis County real property records. However, Allen did not testify about
discovery and the record from the hearing does not include any real property records. In any event,
those findings are not essential to the findings that Allen’s transferring her property into the trust was
an attempt to avoid creditors and that Allen should be ordered to turnover assets to the Bentzins.

                                                    6
believe all of her testimony. Buller, 806 S.W.2d at 227. The district court could reasonably have

believed that Allen’s use of the trust was an attempt to avoid her creditors. Allen has not shown that

the court abused its discretion in entering the turnover order. We overrule Allen’s second point of

error. We affirm the trial court’s judgment.




                                               J. Woodfin Jones, Justice

Before Justices Jones, Yeakel and Patterson

Affirmed

Filed: November 30, 2000

Do Not Publish




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