Opinion
NO. 02-16-00215-CV
07-19-2016
IN RE JULIA TERESA HECKERT RELATOR
ORIGINAL PROCEEDING MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Relator Julia Teresa Heckert (Teresa) filed a petition for writ of injunction and a motion for emergency relief with this court on June 29, 2016. We granted Teresa's motion for emergency relief by order dated June 30, 2016 and requested a response from Respondent Clyde L. Heckert, Jr. (Clyde). See Tex. R. App. P. 52.10(b) (authorizing court of appeals to grant temporary relief). Clyde filed a response that included a "cross motion for temporary relief." We grant Teresa's petition for writ of injunction and deny Clyde's cross motion for temporary relief.
Background
The parties were divorced in 2013. Tort claims brought by Teresa in the divorce proceeding were severed into a separate lawsuit and tried in the 324th District Court, resulting in a judgment for Teresa against Clyde in the amount of $381,342.47, plus postjudgment interest and costs. That judgment was signed on December 22, 2014. Teresa also received a separate judgment against Clyde in the amount of $17,068.87 for his failure to comply with the terms of their divorce decree. As of the filing of Teresa's petition for writ of injunction in this court, the judgments remained unpaid.
Teresa accuses Clyde of attempting to hide money and property in order to prevent her from collecting on the judgments. Teresa alleges that prior to trial on her tort claims, Clyde created entities and transferred stocks and securities to the entities in order to prevent her from collecting those assets in the future. Teresa further claims that Clyde has transferred property to his second wife, who he married shortly before the trial on Teresa's tort claims, in order to keep assets from her reach. She further alleges that Clyde has "emptied his bank accounts" and "[run] his income through [his new wife's] accounts so that they could not be garnished."
Teresa began her postjudgment collection efforts shortly after the judgments were signed. Characterizing Clyde's postjudgment discovery responses as "evasive," Teresa filed a motion to compel and sought sanctions against Clyde. The parties subsequently agreed to an order requiring Clyde to respond to particular discovery requests. Based on the results of this postjudgment collection activity, Teresa has filed another lawsuit against Clyde in the 342nd District Court of Tarrant County, this time alleging fraudulent transfers. That lawsuit remains pending and is not the subject of this original proceeding.
On February 1, 2016, Teresa filed a motion for a turnover order in the 324th District Court. See Tex. Civ. Prac. & Rem. Code § 31.002 (West 2015) (providing procedure for turnover relief). In her motion, Teresa requested that Clyde be ordered to turn over property in a number of financial accounts, including a "Fidelity account" and a "Vanguard account," to a receiver so that the property could be used to satisfy her judgments against him. Although a hearing on her motion occurred on February 17, 2016, a ruling was not made until May 20, 2016. Teresa alleges that during the interim Clyde emptied another of his bank accounts to avoid collection.
Discussion
In its May 20, 2016 order, the trial court directed Clyde to turn over a number of accounts, but not the Fidelity account. Teresa is currently appealing the trial court's turnover order in a separate appeal pending in this court under Cause No. 02-16-00213-CV. The merits of that appeal are not at issue in this original proceeding, but included in her appeal is a challenge to the trial court's refusal to order the turnover of the Fidelity account. Teresa therefore has requested we enter an order enjoining Clyde, his agents, attorneys, and all those acting in concert or participation with him from "transferring, depleting, or moving the assets" in the Fidelity account during the pendency of the direct appeal.
The government code grants a court of appeals the authority to issue writs necessary to enforce its jurisdiction. Tex. Gov't Code Ann. § 22.221 (West 2004); see id. § 21.001(a) (West 2004). "A court of appeals may issue such a writ to prevent an appeal from becoming moot." In re Shields, 190 S.W.3d 717, 719 (Tex. App.—Dallas 2005, orig. proceeding); see In re Williams, No. 02-13-00087-CV, 2013 WL 1437253, at *2 (Tex. App.—Fort Worth Apr. 8, 2013, orig. proceeding) (mem. op.).
In his response, Clyde states that he "does not object to an order that the 401K not be disturbed pending appeal." We therefore grant Teresa's petition for writ of injunction.
Although Clyde's response was titled "Response to Relator's Motion for Emergency Temporary Relief and Cross Motion for Temporary Relief," we interpret it as a response to Teresa's petition for writ of injunction because he clearly states he does not oppose the relief she seeks.
Earlier in his response, Clyde identifies this account as the "401K at Fidelity."
Clyde's Cross Motion for Temporary Relief
Clyde included a "cross motion for temporary relief" in his response, requesting that we grant an injunction regarding an IRA held by Clyde at Vanguard, one of the accounts directed to be turned over to the receiver in the May 20 order. In his cross-appeal in Cause No. 02-16-00213-CV, Clyde anticipates he will challenge the order relating to the Vanguard IRA. Therefore, Clyde requests that we issue temporary relief enjoining Teresa from "taking any action" with regard to the Vanguard IRA.
Not only is the Vanguard IRA arguably outside the scope of this petition for writ of injunction—which seeks relief only as to the Fidelity account—but injunctive relief is not permitted under these circumstances. Clyde can properly obtain the relief he seeks by superseding the turnover order pursuant to rule 24.1 of the rules of appellate procedure. Tex. R. App. P. 24.1(f) ("Enforcement of a judgment must be suspended if the judgment is superseded."). We therefore deny Clyde's cross motion for temporary relief.
A turnover order, such as the one at issue here, can be superseded. Schultz v. Fifth Jud. Dist. Ct. App., 810 S.W.2d 738, 739 n.3 (Tex. 1991) ("Whether [a turnover] order is properly classified as a money judgment or an injunction, it can be superseded."), abrogated on other grounds by In re Sheshtawy, 154 S.W.3d 114, 124-25 (Tex. 2004); see also In re Karlsing, No. 05-14-00049-CV, 2014 WL 1018321, at *2 (Tex. App.—Dallas Feb. 12, 2014, orig. proceeding) (mem. op.). --------
Conclusion
Having considered Teresa's petition for writ of injunction and Clyde's response agreeing to an injunction regarding the Fidelity account, we grant the relief requested in Teresa's petition for writ of injunction.
Therefore, until this court has determined the appeal pending in Cause No. 02-16-00213-CV, or until otherwise ordered by this court, Clyde L. Heckert, Jr. and his agents, attorneys, and all those acting in concert or participation with Clyde L. Heckert, Jr. are:
(a) Enjoined from withdrawing, transferring, depleting, or moving the assets in Clyde L. Heckert, Jr.'s Fidelity account, as referred to on pages 3 and 5 of Relator's Motion for Turnover Order filed on February 1, 2016 in the trial court, to any different account with Fidelity or to any other financial institution.See Tex. R. App. P. 52.10(b).
(b) Enjoined from encumbering the assets in Clyde L. Heckert, Jr.'s Fidelity account, as referred to on pages 3 and 5 of Relator's Motion for Turnover Order filed on February 1, 2016 in the trial court, in any manner.
We express no opinion concerning the merits of Teresa's appeal or Clyde's cross-appeal in Cause No. 02-16-00213-CV.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
JUSTICE PANEL: LIVINGSTON, C.J.; WALKER and SUDDERTH, JJ. DELIVERED: July 19, 2016