Full Opinion (html_with_citations)

Affirmed and Opinion Filed December 7, 2022




                                     In The
                            Court of Appeals
                     Fifth District of Texas at Dallas
                              No. 05-21-00404-CV

                         CAROL YANCEY, Appellant
                                  V.
                        SLJ COMPANY, LLC, Appellee

               On Appeal from the 101st Judicial District Court
                            Dallas County, Texas
                    Trial Court Cause No. DC-19-04449

                        MEMORANDUM OPINION
               Before Justices Schenck, Molberg, and Pedersen, III
                        Opinion by Justice Pedersen, III
      This is an appeal from the trial court’s April 30, 2021 Order Appointing

Receiver (the Order). Appellant Carol Yancey challenges the Order in five appellate

issues, contending that the trial court abused its discretion by (1) appointing a

receiver under section 64.001 of the Texas Civil Practice and Remedies Code, (2)

appointing a receiver for a natural person, (3) appointing a receiver to take

possession of a judgment debtor’s exempt assets, (4) appointing a receiver without

evidence of the existence of assets not exempt from execution, and (5) appointing a
receiver without evidence of the existence of assets not readily subject to levy or

attachment. We affirm the trial court’s Order.

                                   Background

      Yancey acknowledges that she signed a guarantee for a commercial lease in

2011. Appellee SLJ Company, LLC (SLJ) was the landlord to whom rent was due

under that lease; the tenant was Yancey Energy L.L.C. The guarantee states that

Yancey is “the owner and holder of a specific portion of the membership interests in

Tenant” and that SLJ would not have entered into the lease without this “full and

unconditional” guarantee by Yancey. As part of the guarantee process, Yancey gave

SLJ a Personal Financial Statement dated June 15, 2010. That statement represented

that Yancey’s net worth was $3,416,580, which included $1,013,002 “cash on hand

and in banks,” and an additional $716,214 in “savings accounts.” In 2019, when the

then-tenant’s rent payments were in arrears, SLJ sued Yancey and obtained a default

judgment against her in the amount of $210,096.70, plus interest and attorney’s fees.

Yancey does not challenge either her liability under the guarantee or the default

judgment process. The judgment remains unpaid.

      In response to post-judgment discovery, which has included document

production and Yancey’s deposition testimony, SLJ learned that Yancey is the

trustee of the Yancey Family Trust (the Trust). The Trust was created by the will of

Yancey’s husband, who died on February 11, 2010. The Trust is a spendthrift trust,

and its beneficiaries are Yancey and her adult son. At her 2019 deposition, Yancey

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estimated that the corpus of the Trust was approximately $1 million. She testified

she is responsible for investing the funds held in the Trust and that she withdraws

funds from the Trust as they are needed. A limited number of tax returns for the

Trust indicated that distributions from the Trust between 2013 and 2018 were

approximately equal to the income claimed by the Trust.1

        SLJ has also been able to identify certain transactions made by Yancey since

she signed the Personal Financial Statement and the guarantee:

             In May 2010, after her husband’s death, Yancey entered into an Asset
              Purchase Agreement, which sold the assets of her husband’s business
              for $35,000.2

             In August 2013, Yancey sold her Dallas residence for $590,000; she
              paid the remaining mortgage balance of $201,546 to Bank of America
              and paid miscellaneous amounts attendant to the sale.3 Her net gain
              from the transaction was $353,024.31. At her deposition, Yancey
              testified that she used $60,000 from that amount for a down payment
              on her new home and put the rest of the funds into the Trust account.

             The Yanceys also owned a second home in Maine, which they
              purchased as joint tenants in May 2008. After her husband died,
              Yancey—as surviving joint tenant—conveyed the property first to an
              entity named The Caroline Marie Yancey Trust (with herself as trustee)
              and subsequently to the Trust (again, with herself as trustee).

    1
      At the time of the hearing on the motion for a receiver, Yancey had produced the Trust’s tax returns
for 2013 through 2018. Those returns showed distributions of approximately $280,000. Returns were not
produced for the years 2010 through 2012 or 2019.
    2
     The sales agreement also provided for Yancey to receive income from percentages of revenue earned
from ongoing—and some future—contracts; the agreement excluded royalty and patent assets, which
Yancey retained.
    3
      In her June 2010 Personal Financial Statement, Yancey had listed the present market value of the
Dallas property at $776,000; she stated that the balance owed to Bank of America on that date was only
$159,434.


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                Documents produced by Yancey represent that the Yanceys purchased
                the Maine property for $814,600 and the Trust sold it in October 2012
                for a total of $776,000. Yancey testified at her deposition that she
                incurred a loss on this sale; as trustee of the Trust, she likewise
                represented to the Maine Revenue Services that she was incurring a loss
                of the sale.4

        The only evidence we find in our record of personal funds held by Yancey is

found in her deposition. When asked what she and her husband had in savings or

checking accounts when he passed away, Yancey responded that the night before

her husband died, he deposited $45,000 in their checking account, which she

believed was an inheritance from his mother. As to savings, she replied only that “I

don’t think we had much.” And as to current income—other than withdrawals from

the Trust—Yancey testified that she receives $1,911 monthly from Social Security

and Medicaid. Her monthly house payment is approximately $600. She testified she

lives “very frugally”; her attorney characterized her Trust withdrawals as “modest

amounts to cover Ms. Yancey’s living expenses.”

        SLJ first moved for appointment of a receiver in this case in February 2020.

That motion was denied. SLJ moved a second time for appointment of a receiver in

November 2020. A hearing was held in January 2021, and we have a record of the

proceeding. Counsel for SLJ pointed to the multi-million dollar loss of assets by

Yancey since the time of her Personal Financial Statement. He argued that SLJ was



    4
      In her June 2010 Personal Financial Statement, Yancey had listed the present market value of the
Maine property at $1,100,000. She represented the original purchase price as $604,700 and stated that the
balance owed on mortgages for the property on that date was $592,221.
                                                  –4–
unable to determine, based on the post-judgment discovery it had received, where

all of those assets had gone, and he contended that appointment of a receiver was the

only way to determine whether Yancey in fact owned assets that could satisfy its

judgment. Counsel pointed to evidence, based on the transactions discussed above,

that Yancey had in fact possessed significant amounts of cash at different times and

that at least some of that cash had been made property of the Trust. Counsel for

Yancey argued that “this is not a receivership case. This is a case where the Plaintiff

has a big judgment. They’re disappointed that they can’t collect it from Ms. Yancey

because she has nonexistent assets.”

      The trial court granted SLJ’s motion and named Kevin Buchanan as the

receiver. This appeal followed.

                           Appointment of the Receiver

      A judgment creditor is entitled to aid from the court to obtain satisfaction on

the judgment; the court can help the creditor reach property of the debtor that is not

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

CIV. PRAC. & REM. CODE ANN. § 31.002(a). To that end, the court may “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.” Id. § 31.002(b)(3). We review the trial court’s appointment of a receiver

for an abuse of discretion. Spiritas v. Davidoff,
459 S.W.3d 224, 231
 (Tex. App.—

Dallas 2015, no pet.).

                                         –5–
                                The Applicable Statute

      In her first issue, Yancey states that it was an abuse of discretion to appoint a

receiver under section 64.001(a) of the Texas Civil Practice and Remedies Code

because SLJ is not a secured creditor. Yancey is correct (a) that there is no evidence

SLJ is a secured creditor, and (b) that section 64.001(a) provides for appointment of

a receiver only when the creditor is secured. See Jay & VMK, Corp. v. Lopez,
572 S.W.3d 698, 704
 (Tex. App.—Houston [14th Dist.] 2019, no pet.). However, there

is no indication that SLJ ever relied upon section 64.001 for appointment of the

receiver. We find no citation to section 64.001 anywhere in SLJ’s argument for such

an appointment, either in the trial court or on appeal. Nor does the trial court’s Order

purport to rely upon that section.

      We conclude Yancey’s first argument has no relevance to our review of this

case. Accordingly, we discern no abuse of discretion by the trial court on this ground,

and we overrule Yancey’s first issue.

                           The Object of the Receivership

      In her second issue, Yancey complains that the trial court ordered “a receiver

of Ms. Yancey’s person.” She argues that Texas law does not support appointment

of a receiver of a natural person. The Order states that Mr. Buchanon “be and is

appointed as receiver for Caroline Marie Yancey.” We disagree that the Order

specifically grants the receiver authority over Yancey’s person. However, the Order

does not specifically grant the receiver authority over Yancey’s estate either. We

                                          –6–
construe an ambiguous order in light of the motion on which it was granted. Hahn

v. Sw. Double D Ranch, LP, No. 05-16-00111-CV,
2017 WL 1832505
, at *2 (Tex.

App.—Dallas May 8, 2017, no pet.) (mem. op.) (citing Lone Star Cement Corp. v.

Fair,
467 S.W.2d 402, 404
 (Tex. 1971)). It is undisputed that SLJ’s motion for

appointment of a receiver asked the trial court specifically “[to] appoint a Receiver

for the estate of Caroline Marie Yancey.” No argument either in the parties’ briefing

or during the hearing on the motion alluded to a receivership of Yancey’s person.

By granting SLJ’s motion, it is apparent that the trial court intended to appoint a

receiver over the estate of appellant, which is unquestionably within the trial court’s

discretion. See CIV. PRAC. & REM. § 31.002(b)(3).

      We conclude the trial court did not abuse its discretion by appointing a

receiver over Yancey’s estate. We overrule appellant’s second issue.

                   The Assets Subject to the Receiver’s Authority

      In her third issue, appellant contends that the Order exceeds the trial court’s

authority because it does not limit the receiver’s authority to non-exempt property.

As we discussed above, section 31.002 provides that a judgment creditor is entitled

to assistance from the court to reach property from the debtor “that is not exempt

from attachment, execution, or seizure for the satisfaction of liabilities.” Id.

§ 31.002(a). A trial court may authorize a receiver to take possession of “the

nonexempt property” of the judgment debtor.” Id. § 31.002(b)(3). We interpret the

trial court’s Order to invest the receiver in this case only with authority that is

                                         –7–
compliant with section 31.002. See Gutman v. De Giulio, No. 05-20-00735-CV,
2022 WL 574968
, at *7 (Tex. App.—Dallas Feb. 25, 2022, no pet.) (mem. op.) (“By

definition, the Receiver’s authority extends only to non-exempt property.”). We

conclude the trial court was not required to identify the property subject to the

receiver’s authority. If the receiver were to attempt to take control of exempt

property, the judgment debtor could always seek relief from the trial court that

appointed the receiver. See, e.g., id., at *3 (“A court that appoints a receiver to assist

with enforcement thus retains ‘continuing jurisdiction and control’ over

the receiver and receivership property until concluding the proceeding.”). There is

no such complaint before us.

      The receiver’s authority in this case is limited by statute; we conclude that the

trial court did not abuse its discretion when it did not specifically set forth those

statutory limits in its Order. We overrule Yancey’s third issue.

                      Evidence of Ownership of Exempt Assets

      In her fourth issue, Yancey argues that the trial court abused its discretion by

ordering a receivership because there was no evidence that Yancey owned non-

exempt assets. She contends that evidence that she once had cash proceeds from any

of the transactions discussed above does not prove that she currently has that amount

of cash on hand. Yancey relies on the statutory protection for spendthrift trusts,

arguing that the Trust accounts are not subject to execution for her debts. See Burns

v. Miller, Hiersche, Martens & Hayward, P.C.,
948 S.W.2d 317, 326
 (Tex. App.—

                                          –8–
Dallas 1997, writ denied). Burns states that: “Spendthrift trust assets while in the

hands of the trustees, before being distributed, are exempt from attachment,

execution, garnishment, or seizure, and therefore, are not subject to turnover.”
Id.

(citing TEX. TRUST CODE ANN. § 112.035; CIV. PRAC. & REM. § 31.002(a)(2)). Stated

differently, “Neither the corpus, the accrued income which has not been paid to the

beneficiary or the future income to be paid to a beneficiary of a spendthrift trust are

subject to the claims of the creditors of the beneficiary while those amounts are in

the hands of the trustee.” In re BancorpSouth Bank, No. 05-14-00294-CV,
2014 WL 1477746
, at *2 (Tex. App.—Dallas Apr. 14, 2014, no pet.) (mem. op.).

      SLJ contends that Yancey has improperly attempted to shelter her personal

funds from creditors by placing those funds within the Trust or otherwise hiding her

assets. Yancey has conceded that she placed some proceeds from sale of her Dallas

residence in the Trust’s account. And documents indicate that any funds received

from the sale of the Maine property were received in the name of the Trust. But

Yancey argues that she has, over time, withdrawn more money from the Trust than

the evidence shows she deposited in its accounts. We agree with her that if she

comingled her own money with trust funds, we will presume that her own funds

were expended first. See Batmanis v. Batmanis,
600 S.W.2d 887, 890
 (Tex. Civ.

App.—Houston [14th Dist.] 1980, writ ref’d n.r.e.).

      We cannot, however, assume that the transactions pieced together by SLJ—

which raise accounting questions based upon Yancey’s own records—necessarily

                                         –9–
represent the entire universe of transactions made by Yancey that could implicate

her personal funds and Trust funds. SLJ has identified assets Yancey represented

that she owned in 2010, assets that purportedly calculated her net worth at more than

$3.4 million. SLJ has identified significant transactions—sale of two residential

properties and of a business—that resulted in personal funds to Yancey. But Yancey

asserts that “the truth was and is that Ms. Yancey has no non-exempt assets.” If

indeed those various funds that are or were in Yancey’s possession are exempt from

a receiver’s authority, it is her burden to prove that is true. We have made the parties’

burdens in this regard clear: the judgment creditor bears the burden of tracing assets

to the judgment debtor, but it is the judgment debtor’s burden to show that those

assets are exempt from execution. In re C.H.C.,
290 S.W.3d 929
, 931 (Tex. App.—

Dallas 2009, no pet.). Moreover, it is not sufficient for the judgment debtor to assert

that the funds have been spent without giving an accounting of the expenditures. See

Beaumont Bank, N.A. v. Buller,
806 S.W.2d 223, 227
 (Tex. 1991) (“All unaccounted

for cash is presumed to be in the possession of the debtor; simply asserting ‘I spent

it’ is unacceptable.”).

      We conclude that SLJ sufficiently identified personal funds in the possession

of Yancey and offered evidence that at least some of those funds found their way

into Trust accounts. We conclude further that the trial court did not abuse its

discretion in appointing a receiver to attempt to identify amounts within those or



                                         –10–
other personal funds that may be available to satisfy SLJ’s judgment. We overrule

Yancey’s fourth issue.

                 Assets Not Readily Subject to Levy or Attachment

      The entirety of Yancey’s fifth issue is composed of this single sentence:

“When there is no evidence of non-exempt assets it follows that there is no evidence

of non-exempt assets that are not readily subject to levy or attachment.” We have

held that bare assertions of error, without argument or authority, waive error. Teter

v. Comm’n For Lawyer Discipline,
261 S.W.3d 796, 799
 (Tex. App.—Dallas 2008,

no pet.). If an appellant fails to brief a complaint adequately, she waives that issue

on appeal.
Id.

      Moreover, we have already concluded that SLJ identified apparently non-

exempt assets sufficiently to trigger Yancey’s burden to prove the assets are exempt.

We overrule Yancey’s fifth issue.

                                     Conclusion

We affirm the trial court’s Order.



                                           /Bill Pedersen, III//
210404f.u05                                BILL PEDERSEN, III
Do Not Publish                             JUSTICE
TEX. R. APP. P. 47




                                        –11–
                            Court of Appeals
                     Fifth District of Texas at Dallas
                                   JUDGMENT

CAROL YANCEY, Appellant                        On Appeal from the 101st Judicial
                                               District Court, Dallas County, Texas
No. 05-21-00404-CV           V.                Trial Court Cause No. DC-19-04449.
                                               Opinion delivered by Justice
SLJ COMPANY, LLC, Appellee                     Pedersen, III. Justices Schenck and
                                               Molberg participating.

       In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.

      It is ORDERED that appellee SLJ Company, LLC recover its costs of this
appeal from appellant Carol Yancey.


Judgment entered this 7th day of December, 2022.




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