OPINION
This is an appeal from an order granting turnover relief and appointing a receiver and master in chancery who had participated in the underlying action as a testifying expert. In the underlying action, ap-pellee Marsha Ann Moyer was awarded a divorce from appellant Gary Moyer, actual damages for intentional infliction of emotional distress, and punitive damages. 1 Gary did not supersede the judgment. It is undisputed that, following the verdict, Gary assigned property of his wholly-owned corporation to a pair of newly-created foreign limited partnerships in which he had controlling interests; he also assigned certain real property from the corporation to himself individually and proceeded to claim it as his homestead. Based on evidence of these transactions, Marsha obtained the order on appeal in this proceeding.
In eight issues, Gary argues that the district court abused its discretion because (1) the turnover relief ordered by the district is insufficiently specific regarding the property to be turned over and extends to exempt property; (2) the appointed receiver had an interest in the underlying litigation and the district court improperly awarded him fees without a showing of reasonableness or completed work; and (3) there was no showing of good cause to appoint a master in chancery, the appointee had an interest in the litigation, and was not a licensed attorney. We will reverse and remand the order as it pertains to the turnover, the receiver appointed, and the receiver’s fee. We are without jurisdiction to consider the issues related to the appointment of a master in chancery.
BACKGROUND
In this cause, Marsha sought a range of remedies to aid in enforcing her judgment against Gary in the underlying action. The district court heard evidence that, around the time the court rendered judgment on the jury’s verdict, Gary undertook a series of transactions that had the effect of:
• transferring the business assets of his wholly-owned Texas corporation, Paper Resources International, Inc. — including office equipment, intellectual property, tax credits, and accounts receivable — to a newly-created Aaska limited partnership, Paper Resources International L.P., which Moyer subsequently designated as the successor to his Texas corporation;
• transferring certain land and assets “pertinent to the land” — including livestock, horses, a sprayer, a truck, trailers, heavy equipment, and a welder — from the Texas corporation to a newly-created Aaska limited partnership, Florence Investments L.P.;
• transferring the Texas corporation’s 100 acres of remaining land to Gary individually, who proceeded to claim the property as his homestead; and
• placing control of both limited partnerships in Gary, who had 98% limited partnership interests in both, 2 as well as 100% membership in each limited partnership’s general partners, a pair of newly-created West Indies limited liability corporations. The general partner of Paper Resources International L.P. was Paper Resources Management, L.L.C.; the general partner of Florence Investments L.P. was Florence Investments Management, L.L.G.
The principal place of both limited partnerships was the same Florence, Texas, address as the original Texas corporation. 3
Although admitting to an earlier utterance that he had wanted to “preserve something for myself,” Gary insisted that there was nothing “illegal or immoral” about these transactions. He emphasized that, in the underlying action, the issue of whether Paper Resources International, Inc. was his alter ego had been submitted to the jury, which had found in the negative. Gary concluded that because only he, and not Paper Resources International, Inc., was a judgment debtor, nothing prevented the company from restructuring and transferring its assets so as to avoid entanglement with Gary’s personal legal problems. As he put it, “Paper Resources is and was a separate entity from me, and I had a responsibility to do the best I could by those companies to keep them from being subject to anything that would go wrong with me.”
Marsha characterizes the transactions as a “pattern of shifting funds and assets to avoid execution” on the unsuperseded judgment. At the close of the hearing, the district court granted the remedies Marsha had requested, including (1) a temporary injunction barring Gary from transferring assets related to his businesses; (2) a charging order against Gary’s interests in the two limited partnerships, see Tex.Rev.Civ. Stat. Ann. art. 6132a-1 (West Supp.2004-05); (3) a turnover order; and (4) the appointment of Steve Pena, an accountant who had served as Marsha’s damages expert in the underlying case, as both receiver and master in chancery, and awarding him fees. Gary largely did not contest either the injunction or the charging order, and neither are at issue on appeal, 4 but contends that the district court abused its discretion with regard to other relief it ordered.
DISCUSSION
Gary brings eight issues in which he challenges the district court’s order of turnover relief, its appointment of Pena as receiver, its fee award to Pena, and its appointment of Pena as master in chancery.
Standard of review
We review a turnover order, an appointment of a receiver, and an award of fees to the receiver for an abuse of discretion.
See Beaumont Bank, N.A. v. Buller,
Turnover relief
Gary asserts in his first issue that the district court’s turnover order constitutes an abuse of discretion because it fails to identify specific non-exempt property to be turned over. In his second, somewhat overlapping issue, he contends that the turnover order impermissibly extends to exempt property. A “turnover” order is a statutory procedural device through which judgment creditors may reach assets of a judgment debtor that are otherwise difficult to attach or levy by ordinary legal process.
See
Tex. Civ. Prac. & Rem.Code Ann. § 31.002 (West Supp.2004-05);
Beaumont Bank, N.A.,
1.Defendant owns property described as 100% membership interest in Paper Resources Management, L.L.C. and 100% membership interest in Florence Investments Management, L.L.C. Paper Resources Management, L.L.C. is purportedly the general manager of Paper Resources Limited Partnership, and Florence Investments Management, L.L.C. is purportedly the general manager of Florence Investments Limited Partnership. Paper Resources Limited Partnership is purportedly the successor of Paper Resources International, Inc., of which Defendant is the sole owner, officer, and director;
2. These properties are not exempt under any statute from attachment, execution or seizure for the satisfaction of liabilities.
3. These properties cannot readily be attached or levied upon by ordinary legal process.
Upon finding that the elements of section 31.002(a) are satisfied, a trial court has discretion to issue a range of remedies, including ordering the judgment debtor to turn over nonexempt property that is in the debtor’s possession or is subject to the debtor’s control to a designated sheriff or constable for execution, and “appointing] 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). Here, the district court appointed Steve Pena as receiver and vested him with the following powers:
all the power and authority to take possession of all nonexempt property of Gary Moyer that is in the actual or constructive possession or control of Gary Moyer, including but not limited to all property incidental to or associated with the daily operations of Paper Resources International, Inc., Paper Resources Management, L.L.C., and Florence Investments Management, L.L.C., including but not limited to all cash, accounts receivable, notes receivable, promissory notes, drafts and checks, monies on deposit in financial institutions, financial accounts (bank accounts), certificates of deposit, money market accounts, accounts held by any third party, stocks, all securities, all real property deeds to real property, titles to automobiles or other vehicles, boats, planes, all safe deposit boxes or vaults and the contents therein, monies received by the Defendant in the form of checks, cash or credit card payments or receipts; any and all causes of action or chooses of action, contract rights whether present or future; and all furniture, fixtures, equipment, supplies and inventory, and all documents, books and records related to any of the herein described property (including financial records) that are in the actual or constructive possession or control of Gary Moyer; and to pay the proceeds to Plaintiff to the extent required to satisfy her judgment (or the balance due if the judgment has been partially satisfied) which amount includes principal, prejudgment and post-judgment interest, together with costs.
Gary urges that this order impermissibly fails to identify specific non-exempt property or rights thereto that he possessed that would enable him to comply with the order, but merely employs a “laundry list” of broad property categories with little or no relationship to the evidence. In response, Marsha contends that it is sufficient that the order purports to be limited to “nonexempt property of Gary Moyer that is in the actual or constructive possession or control of Gary Moyer,” and identifies “all property incidental to or associated with the daily operations of Paper Resources International, Inc., Paper Resources Management, L.L.C., and Florence Investments Management, L.L.C.” While herself characterizing the remainder of the paragraph as a “laundry list,” Marsha suggests that the district court did not abuse its discretion in employing broad categories in the face of evidence that Gary had been “engaged in a complicated maneuvering of assets that had converted previously non-exempt assets to homestead and that has made the execution on assets difficult.”
Gary’s argument finds support in decisions invalidating turnover orders in whole or part for lack of specificity concerning the property to be turned over.
See Newman v. Toy,
But the specificity requirement is not merely a means to these ends. Instead, it derives from the statutory requirements and limitations governing turnover relief. To meet the requirements of section 31.002, the court’s order must be specific in both identifying the non-exempt property that is susceptible to turnover relief and in tailoring the turnover relief to that property. As the Bergman court explained:
In the Schultz opinion, the [Supreme] Court referring to the turnover statute said: The statute requires a factual showing that the judgment debtor has non-exempt property that is not readily subject to ordinary execution.... Upon proof of the necessary facts, it authorizes the trial court to order affirmative action by the judgment debtor and others to assist the judgment creditor in subjecting such non-exempt property to satisfaction of the underlying judgment.
this language certainly mandates that the trial court is to have a hearing, determine what specific assets are exempt, and what assets are subject to the court’s order and then to direct the payment as the court determines is proper. If the statute requires a factual showing of non-exempt property, the court has to be acting with regard to certain specific property that it will direct be turned over to satisfy a judgment. It is not to be left to the debtor to determine what property that person has and whether it is exempt. Otherwise, there would be no need for any Tactual showing’ by ‘proof of the necessary facts’ as required by [the supreme court’s] opinion.
Id.
The turnover order in this case does not comply with section 31.002.
See
Tex. Civ. Prac. & Rem.Code § 31.002. It compels Gary to turn over property beyond the sole non-exempt property the district court found that he possessed and controlled and that “cannot readily be attached or levied upon by ordinary legal process,” his “100% membership interest in Paper Resources Management, L.L.C. and 100% membership interest in Florence Investments Management, L.L.C.” Moreover, the list refers to property items whose existence— whether controlled by Moyer, Paper Resources International, Inc., or any other entity — is not supported by the evidence. For example, there was no evidence presented regarding any “boats,” “planes,” and “safe deposit boxes or vaults and the contents therein.” ■ In
Neuman,
we invali
Some of the categories, as Marsha observes, do appear to encompass property whose existence was established in the evidence. But the mere fact that general property categories in a turnover order coincide with some actual existing property is insufficient to cure the order’s lack of specificity. The Beaumont Court of Appeals invalidated a similar turnover order that “did not make any specific reference to the assets that were proved during the hearing” but referred generally to “books,” “stocks,” “titles to automobiles,” “cash,” “other vehicles,” and “real property/deeds to real property.”
Roebuck,
We are similarly persuaded that we must reverse and remand the turnover order in this case. Its fatal lack of specificity cannot be justified, as Marsha urges, by evidence of Gary’s “complicated maneuvering of assets that had converted previously non-exempt assets to homestead and that has made the execution on assets difficult.” Even if these are valid concerns, we are not permitted to ignore the restrictions and limitations the legislature has placed in section 31.002. We note that injunctive relief is available to prevent judgment debtors from dissipating or converting assets and that, in fact, the district court granted such relief here. Nor did Gary’s transfer of assets appear to create uncertainty regarding the nature of the assets at issue. To the contrary, the evidence clearly identified several specific items of business assets, real property, and assets “pertinent to the land.” To the extent that Marsha desires greater clarity concerning the nature of Gary’s property, she may seek it through post-judgment discovery. 5 See Tex.R. Civ. P. 621a.
We sustain Gary’s first issue, and reverse and remand the turnover order for further proceedings consistent with this opinion. We thus do not reach Gary’s second issue in which he contends the current order improperly extends to exempt property, but trust that the district court, while ensuring the required specificity regarding non-exempt property, will ensure that any further turnover orders comply with this limitation.
Appointment of Marsha’s expert as receiver
The receiver appointed by the district court, Steve D. Pena, a certified public accountant, had been Marsha’s retained damages expert in the underlying case. Gary contends that Pena’s appointment was an abuse of discretion because Pena has an interest in the matter. We agree that the district court abused its discretion in appointing Pena.
We agree with Marsha that the focus on our inquiry must be whether Pena has a disqualifying interest in “the action for appointment of receiver” in particular, not the underlying action; we may not ignore the language the legislature has deliberately chosen.
See Sorokolit v. Rhodes,
However, this case presents the somewhat different question of whether a retained expert in the underlying cause may nonetheless not be interested in a post-judgment proceeding to appoint a receiver. This appears to be a question of first impression under Texas law, as Marsha observes. Our resolution of that issue depends in part on the nature of the “interest” with which the legislature was concerned in section 64.021 and its statutory predecessors.
See
Tex. Civ. Prac.
&
Rem. Code Ann. § 64.021. Texas courts have long assumed that a financial stake in one
However, we need not decide whether, as a general proposition, retained experts in underlying litigation could ever be appointed as receiver in a subsequent receivership proceeding. On the record before us, there was no evidence that Pena met the statutory requirements for serving as receiver in this case.
See Pena v. Sell,
Receivership fees
In his fourth and fifth issues, Gary argues that the district court abused its discretion by setting the receiver’s fee without any evidence of reasonableness, and by allowing the receiver to be compensated prior to his discharge. Marsha responds that the order authorizing fees is interlocutory because the trial court did not purport to determine the total value of the receiver’s fee up to a certain time, depriving this Court of jurisdiction to consider this issue.
Bergeron v. Sessions,
The order states that “it is hereby ORDERED, DIRECTED and AUTHORIZED that Receiver, STEVE D. PENA, CPA pay himself as receiver’s fees an amount not more than twenty-five percent (25%) of all proceeds coming into his possession to be paid by the Receiver, which amount the Court finds to be a fair, reasonable and necessary fee for the Receiver, and to distribute all remaining proceeds to Plaintiffs attorneys.... Receiver fees in excess of twenty-five percent (25%) may be awarded after application to a separate order of this Court.” (Emphasis added.) The plain language of the order indicates that at the time the order was signed, the court made a determination that a twenty-five percent commission would be reasonable. The commission could be collected as the proceeds came into the receiver’s possession; only remaining proceeds would be distributed. Moreover, the court found that if the receiver determined that twenty-five percent was not sufficient, he could apply for more in a separate request. The plain language of the order results in a final determination that twenty-five percent of proceeds was a fair, reasonable and necessary fee, and was made when the order was signed. Therefore, the order was not interlocutory and we have jurisdiction to consider whether there was evidence to support a finding that the fee was reasonable. Id.
The receiver’s fee should be measured by the value of the services rendered; the results which are accomplished by the receiver must be considered in determining a reasonable fee.
Stanfield,
Marsha urges us to presume that the fee is reasonable because there was evidence that it would be difficult to trace Gary’s assets and collect them. Even assuming she is correct, however, there was no testimony or other evidence establishing how much the receiver should be compensated for the task. Furthermore, the value of the receiver’s future or ultimate accomplishments could not have been considered at the time the order appointing him was signed. We sustain Gary’s fourth and fifth issues.
Master in chancery
In his sixth, seventh, and eighth issues, Gary asserts that the trial court erred by appointing Pena as master in chancery without a finding of good cause and when Pena is not an attorney and- has an interest in the litigation. See Tex.R. Civ. P. 171. Marsha responds that the appointment of a master in chancery is not a final, appealable order.
Texas Rule of Civil Procedure 171 permits the trial court, “in exceptional cases, for good cause,” to appoint a master in chancery “who shall be a citizen of this State, and not an attorney for either party to the action, nor related to either party.” Id. The order gives Pena, as master, “the fullest and broadest powers” under rule 171, including but not limited to ordering the production of evidence, scheduling hearings, and examining witnesses under oath. Also pursuant to rule 171, Pena must file a master’s report, and the court may then confirm, modify, correct, reject, reverse or recommit the report, after it is filed, as the court may deem proper and necessary in the particular circumstances of the ease. Id.
As a general rule, an appeal may be taken only from a final judgment.
See Lehmann v. Har-Con Corp.,
CONCLUSION
Having sustained Gary’s first five issues, we reverse and remand for further proceedings consistent with this opinion.
Notes
. Gary has appealed this judgment, which is presently pending in Cause No. 03-03-00751-CV in this Court.
. Gary's daughter, Annette Capriotti, was assigned a one percent interest in each limited partnership. The remaining one percent of each limited partnership was held by its general partner.
. This may explain the references to Florence in the names of some of the new entities.
. The record does not indicate whether this or any other injunctive relief is presently in effect.
. At the turnover hearing, Gary’s attorney stated that "not one single piece of post-judgment discovery has gone out.” Marsha’s attorney argued that post-judgment discovery was not required because Gary "does not get to dictate or choose how I go about collecting on my judgment.”
. We express no opinion regarding the merits of these issues in the event they are later presented through other appellate avenues.