This case arises from the trial court's application of the Texas "turnover" statute, the procedural device by which judgment creditors may reach assets of a debtor that are otherwise difficult to attach or levy on by ordinary legal process.
Paul Buller died on October 25, 1985, leaving a will designating his wife, Patricia Buller, sole heir and independent executrix of his estate. At the time of his death, Paul Buller owned a $100,000 certificate of deposit ("CD."), which was deposited at the First State Bank of Lumberton in a bank account held jointly with his wife. This CD. was scheduled as community property in the estate inventory. Mr. Buller was also guarantor on promissory notes totalling $199,553.09 held by Beaumont Bank.
On December 2, 1985, proceeds from the CD. totalling $99,736.99 were transferred from the Lumberton bank account into the "Special Trust Account" of Marshall Rea— Mrs. Buller's attorney. Between December 23, 1985 and February 20, 1986, Mr. Rea made three wire transfers, totalling $47,010, from another trust account (styled "Trust Account no. 5") to Mrs. Buller's relatives. Although at the time of these
Soon after Mr. Buller's death, representatives of Beaumont Bank contacted Mr. Rea requesting that Mr. Buller's estate pledge the $100,000 CD. as additional collateral against the promissory notes guaranteed by Mr. Buller. The parties engaged in several discussions concerning Beaumont Bank's claims against the Buller estate. A primary concern of these discussions was the ultimate disposition of the CD., which Beaumont Bank believed was still deposited in the Lumberton Bank. At some point in these negotiations, Mr. Rea revealed to Beaumont Bank that the CD. money had been transferred into his personal trust account.
In January 1986, the promissory notes guaranteed by the decedent went into default. In February 1986, Beaumont Bank filed suit on the notes, recovering a judgment in excess of $270,000. Subsequently, the Bank filed a motion for turnover relief, and a hearing was held on this issue on January 7, 1988 and February 8, 1988.
At the turnover relief hearing, Mrs. Buller testified that the funds transferred from the Lumberton account to Mr. Rea's trust fund were the proceeds from the $100,000 CD. belonging to Mr. Buller's estate. Mrs. Buller also testified that she was fully cognizant of her fiduciary duties as a personal representative of the estate, which included a duty to ascertain the liabilities of the estate. Nonetheless, Mrs. Buller admitted to personally authorizing the transfers from Mr. Rea's trust accounts for the express purpose of thwarting the seizure of the CD. monies by Beaumont Bank, a legitimate creditor of the estate. The evidence at the hearing showed many, if not all, of the various disbursements from Mr. Rea's trust account were made to Mrs. Buller and other persons having no legitimate claim on the estate of Paul Buller.
When ordered by the trial court to provide receipts of the disbursements of the $100,000, Mrs. Buller provided only one: a receipt of the $17,000 wire transfer from Mr. Rea's "Special Trust Account" to the account of her son-in-law, who had no legitimate claim against the estate. Mrs. Buller claimed to have no other receipt that could account for how she spent the CD. monies. Other testimony by Mrs. Buller revealed that she transferred approximately $250,000 to an account in the Cayman Islands in the summer of 1986. Mrs. Buller claimed that these Cayman Island funds were proceeds from an unspecified life insurance policy; however, no evidence was ever introduced as to the origin or exact amount of the alleged life insurance policy. Indeed, when questioned under oath about
Although the court of appeals reversed the trial court on the ground that there was "no evidence" to support the issuance of the turnover order, the court of appeals should have reviewed the trial court's judgment under an abuse of discretion standard. See, e.g., Buttles v. Navarro, 766 S.W.2d 893 (Tex.App.—San Antonio 1989, no writ); Sloan v. Douglass, 713 S.W.2d 436 (Tex.App.—Fort Worth 1986, writ ref'd n.r.e.); Barlow v. Lane, 745 S.W.2d 451 (Tex.App.—Waco 1988, writ denied). Whether there was no evidence to support the turnover award would, of course, be a relevant consideration in determining if the trial court abused its discretionary authority in issuing the order.
A trial court may be reversed for abusing its discretion only when the court of appeals finds the court acted in an unreasonable or arbitrary manner. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex.1985). Stated somewhat differently, abuse of discretion occurs when a trial court acts "without reference to any guiding rules and principles." Id. at 241-42 (citations omitted). A corollary principle is that the court of appeals may not reverse for abuse of discretion merely because it disagrees with a decision by the trial court, if that decision was within the trial court's discretionary authority. Id. at 242. In the context of turnover orders, it has been held that a trial court's issuance of a turnover order, even if predicated on an erroneous conclusion of law, will not be reversed for abuse of discretion if the judgment is sustainable for any reason. Buttles, 766 S.W.2d at 894-95. We now address whether the trial court abused its discretionary authority in ordering Mrs. Buller to turn over the nearly $100,000 in cash directly traceable to her in her representative capacity.
The evidence is indisputable that the proceeds from the original CD., which was estate property, were traced to Mrs. Buller. Thus, since Mrs. Buller held estate property, she became a holder of property of a judgment debtor, the estate.
Hittner, Texas Post-Judgment Turnover and Receivership Statutes, 45 Tex.Bar J. 417, 418 (April 1982) (quoting House and Senate Committee reports, Tex.Rev.Civ. StatAnn. art. 3827a (Vernon Supp.1980) (now Tex.Civ.Prac. & Rem.Code sec. 32.001 (Vernon 1986 and Supp.1991))). The efficacy of such a rule is underscored when the asset is cash. Unlike other assets, cash is fungible; thus, it will almost always be impossible for a judgment creditor to specifically identify a particular cash sum. Consequently, we hold that once cash was traced to Mrs. Buller, she was presumed to possess the entire amount traced and it became her burden to show she was not in possession of all or part of the traced amount.
At trial, Mrs. Buller's primary defense to enforcement of the statute was her argument that she had spent the original $100,000
Mrs. Buller and Mr. Rea did proffer some evidence as to how certain specific portions of the CD. monies were transferred from the account. There was some evidence showing the payment of Mr. Rea's legal fees, three mortgage payments, and other payments. If the trial court had found that this evidence rebutted the presumption that Mrs. Buller possessed or had subject to her control estate assets traced to her, those amounts accounted for by Mrs. Buller would have to have been deducted from the overall amount ordered turned over. The purpose of the turnover proceeding is merely to ascertain whether or not an asset is in the possession of the judgment debtor or subject to the debtor's control. If the asset sought is a cash sum, then the turnover proceeding can only order the debtor to turn over as much of the cash amount as is in the possession or control of the debtor. Tex.Civ.Prac. & Rem.Code sec. 31.002(b)(2) (Vernon 1986).
The court of appeals correctly recognized that the turnover statute could only reach Patricia Buller in her capacity as representative of the estate. Texas courts do not apply the turnover statute to non-judgment debtors. See, e.g., Cravens, Dargan & Co. v. Trovers Co., 770 S.W.2d 573, 576 (Tex.App.—Houston [1st Dist.] 1989, writ denied) (no turnover action against State Board of Insurance for judgment debtor's licensing deposit); Detox Industries, Inc. v. Gullett, 770 S.W.2d 954, 956 (Tex.App.—Houston [1st Dist.] 1989, no writ) (no turnover action against nondebtor corporation to cancel stock in judgment debtor's name and reissue in creditor's name); United Bank Metro v. Plains Overseas Group, 670 S.W.2d 281, 284 (Tex. App.—Houston [1st Dist] 1983, no writ) (no turnover action against corporate alter ego of judgment debtor). The trial court's original judgment imposed liability on Mrs. Buller as legal representative of her husband's estate. The judgment did not make Mrs. Buller a debtor in her individual capacity. Nonetheless, the trial court's turnover order improperly imposed liability on Mrs. Buller in her representative and individual capacities.
Based on the foregoing analysis, we reverse the judgment of the court of appeals and affirm the judgment of the trial court to the extent it orders assets turned over by Mrs. Buller in her representative capacity.
GONZALEZ, J., files concurring opinion joined by CORNYN, J.
MAUZY, J., files a dissenting opinion.
I agree that the proper standard of appellate review is abuse of discretion. However, the court glosses over the fact that Mrs. Buller only brought forward a partial statement of facts.
Even if recast under the proper standard of abuse of discretion, Mrs. Buller's complaint is still that the state of the evidence does not justify the trial court's action. Generally, points dependent on the state of the evidence cannot be reviewed in the absence of a complete statement of facts. Lane v. Fair Stores, 150 Tex. 566, 243 S.W.2d 683, 684 (1952). As we said in The Englander Co. v. Kennedy, 428 S.W.2d 806 (Tex. 1968):
Id. at 807. To this list I would add complaints that the trial court abused its discretion because of the state of the record. See, e.g., Ward v. Cornyn, 700 S.W.2d 281, 282 (Tex.App.—San Antonio 1985, orig. proceeding) (in absence of a statement of facts of discovery hearings, no abuse of discretion could be shown); Drozd v. McKinley, 670 S.W.2d 405, 406-07 (Tex.App.—Corpus Christi 1984) (no abuse of discretion in division of costs absent complete record), reversed on other grounds, 685 S.W.2d 7 (Tex.1985); Mercer v. Mercer, 503 S.W.2d 395, 397 (Tex.Civ.App.—Corpus Christi 1973, no writ) (no abuse of discretion shown in division of community property without complete record). The burden for showing harmful error because of the state of the record, whether on "abuse of discretion" or "no evidence" grounds, is the same. Generally, if an appellant files a partial statement of facts, the reviewing court must presume the omitted portions of the record would have been relevant to the determination of appellant's evidentiary arguments. The Englander Co., 428 S.W.2d at 807.
The absence of a complete record is not always fatal to appellate review or review by original proceeding. Since the time of The Englander Co., we have amended the rules to allow for limited appeals. Tex.R. App.P. 53(d).
For these reasons, I concur in the result.
CORNYN, J., joins this concurring opinion.
MAUZY, Justice, dissenting.
The real problem underlying this cause is that Beaumont Bank chose an improper vehicle to resolve its dispute with Patricia Buller. The Texas turnover statute, Tex. Civ.Prac. & Rem.Code Ann. sec. 31.002 (Vernon 1986 & Supp.1991), is simply an unsuitable mechanism for resolving this dispute. The majority opinion, however, effectively condones the Bank's misplaced reliance on the statute. I therefore dissent.
The inadequacy of the turnover statute in this context is patent. The majority acknowledges that the turnover statute cannot be applied to Buller in her individual capacity. All Buller needed to establish, then, was that she had spent the estate funds. Her expenditures did not need to be legitimate; any expenditure would serve, no matter how frivolous, as long as Buller documented her spending to this court's satisfaction.
Even as to any estate assets which Buller has not spent, the turnover order will ultimately prove unenforceable. The Texas Bill of Rights prohibits the trial court from enforcing the turnover order by imprisonment. Article I, section 18 of the Texas Constitution unequivocally provides that "[n]o person shall ever be imprisoned for debt." This prohibition has appeared in every version of our constitution.
Fortunately, the Texas legislature has provided a suitable remedy for the problem at hand. When the representative of an estate fails to make a court-ordered payment, the claimant's remedy properly lies under section 328 of the Texas Probate Code. See, e.g., Fillion v. Osborne, 585 S.W.2d 842, 844 (Tex.Civ.App.—Houston [1st Dist.] 1979, no writ). Section 328(b) enables a court to "cite the representative and the sureties on his bond to show cause why they should not be held liable" on the outstanding judgment. Absent a showing of good cause,
Tex.Prob.Code Ann. sec. 328(b) (Vernon 1971 & Supp.1991). See 18 M. Woodward and E. Smith, Probate and Decedents' Estates § 950 (Texas Practice 1971).
With its enactment of section 328(b), the legislature has established an appropriate procedure for determining the substantive rights of debtors and creditors in a situation such as this. The advantages of section 328(b) are manifest. By requiring notice and a hearing, section 328(b) ensures that the representative of an estate will have a fair opportunity to assert substantive rights. And by providing for personal liability, section 328(b) also ensures that a judgment creditor may have redress for misuse of estate funds. The turnover procedure, in contrast, is "purely procedural in nature," and is not amenable to the determination of substantive rights. Steenland v. Texas Commerce Bank, 648 S.W.2d 387, 390 (Tex.Civ.App.—Tyler 1983, writ refd n.r.e.).
A court should not permit a party to bypass an established statutory procedure by way of the turnover statute. See Cravens, Dargan & Co. v. Travers Co., 770 S.W.2d 573, 577 (Tex.Civ.App.—Houston [1st Dist] 1989, writ denied). In most instances, as in this case, the turnover statute will prove wholly inappropriate for resolving substantive disputes.
(a) A judgment creditor is entitled to aid from a court of appropriate jurisdiction through injunction or other means in order to reach property to obtain satisfaction on the judgment if the judgment debtor owns property, including present or future rights to property, that:
(b) The court may:
(c) The court may enforce the order by contempt proceedings or by other appropriate means in the event of refusal or disobedience.
(d) The judgment creditor may move for the court's assistance under this section in the same proceeding in which the judgment is rendered or in an independent proceeding.
(e) The judgment creditor is entitled to recover reasonable costs, including attorney's fees.
(f) A court may not enter or enforce an order under this section that requires the turnover of the proceeds of, or the disbursement of, property exempt under any statute, including Section 42.0021, Property Code. This subsection does not apply to the enforcement of a child support obligation or a judgment for past due child support.
Under Tex.R.App.P. 53(c), matters which are not "essential to the decision of the questions presented on appeal shall be omitted" from the statement of facts filed on appeal. The trial court's recessing of the first hearing to allow the parties to gather their documentation is not a matter which is essential to the decision of the question before us.