Bahar v. LYON FINANCIAL SERVICES, INC.
330 S.W.3d 379
| Tex. App. | 2010Background
- Lyon Financial Services obtained a default Minnesota judgment against Bahar and domesticated it in Texas, leading to a turnover order appointing a receiver/master in chancery to locate Bahar's non-exempt assets.
- Baumann, the receiver, propounded discovery and took Bahar's deposition; Bahar objected to many requests and Bahar’s counsel objected and the deposition was terminated early due to disputes.
- Baumann moved to compel discovery, sought to amend turnover to expand powers, and sought attorney's fees; Bahar moved for continuance but did not timely pursue or submit the motion for ruling.
- A hearing was held (attended by Baumann and Lyon, but Bahar and her attorney did not attend); the court granted the motions to compel and denied Bahar's continuance; two orders memorialized the rulings.
- Bahar sought mandamus relief in this Court; after mandamus relief was denied, Bahar filed this restricted appeal challenging the amended turnover order, discovery sanctions, and related rulings.
- The court held Bahar’s appeal in part: lack of jurisdiction over portions duplicative of an unappealed 2008 turnover order, dismissal of challenges to the master-in-chancery provisions, and limited review of discovery sanctions while affirming other aspects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction over the amended turnover order | Bahar asserts appellate review is available for the 2009 amended turnover order. | Lyon argues only the unappealed 2008 order portions are reviewable and the 2009 order cannot resurrect them. | Court lacks jurisdiction to review portions echoed from the unappealed 2008 order. |
| Reviewability of the master-in-chancery provisions | Amended turnover includes master-in-chancery provisions appealed as part of the turnover order. | Master-in-chancery appointment is reviewable only by mandamus, not on direct appeal. | Dismiss Bahar's appeal to the extent it challenges master-in-chancery provisions. |
| Discovery sanctions and attorney's fees | Discovery sanctions and attorney's fees against Bahar are final and appealable. | Discovery sanctions are not final, and fee awards require evidentiary support; sanctions against Bahar’s attorney lack standing for Bahar to challenge. | Partially sustained: sanctions against Bahar’s attorney lack standing; fee awards lack supporting evidence; otherwise the discovery sanctions portion reviewed. |
| Bahar's participation in the hearing | Bahar participated by submitting written responses to motions and thus was not non-participatory. | Participation should be judged by actual hearing, not just written responses; Bahar attended or did not attend the hearing as required. | Bahar met the non-participation requirement; despite written responses, she participated in the hearing for purposes of restricted appeal. |
| Continuance denial and related rulings | The continuance denial prejudiced Bahar by forcing a hearing without counsel. | Record shows no abuse of discretion; Bahar failed to show compliance with notice rules for continuance. | No abuse of discretion apparent on the face of the record; issue over continuance denied. |
Key Cases Cited
- Schultz v. Fifth Judicial Dist. Court of Appeals, 810 S.W.2d 738 (Tex. 1991) (turnover orders are final, appealable judgments)
- Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001) (final judgments; scope of appellate review)
- Old Republic Ins. Co. v. Scott, 846 S.W.2d 832 (Tex. 1993) (amended final orders; supersede prior judgments)
- Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732 (Tex. 2001) (timeliness and jurisdiction in appellate review)
- Arndt v. Farris, 633 S.W.2d 497 (Tex. 1982) (attorney's fees; enforceability and evidence requirements)
- Moyer v. Moyer, 183 S.W.3d 48 (Tex. App.-Austin 2005) (appellate review of turnover order; abuse-of-discretion standard)
- Alexander v. Lynda's Boutique, 134 S.W.3d 845 (Tex. 2004) (restricted appeal non-participation standard; face-of-record review)
- Cox v. Cox, 298 S.W.3d 726 (Tex. App.-Austin 2009) (participation in decision-making event; restricted appeal)
- Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223 (Tex. 1991) (turnover and enforcement powers; mandatory injunction concept)