Greg Gibson and Christine Gibson v. Jose Fernando Cuellar

Affirmed and Opinion filed September 5, 2013.

In the

Fourteenth Court of Appeals

NO. 14-12-00644-CV

GREG GIBSON AND CRISTINE GIBSON, Appellants
V.

JOSE FERNANDO CUELLAR, Appellee

On Appeal from the 11th District Court
Harris County, Texas
Trial Court Cause No. 2010-13000

OPINION

Appellants Greg and Christine Gibson (the Gibsons) appeal from a final
judgment awarding attorney’s fees in the amount of $40,182.50 to appellee Jose
Fernando Cuellar. In an underlying action, the parties entered into a rule 11
agreement and agreed judgment regarding the sale and transfer of a parcel of real
estate. After the Gibsons failed to deliver clear title in accordance with the
settlement agreement, Cuellar filed the instant suit. The trial court appointed a
receiver to conduct the real estate transaction, and then awarded Cuellar attorney’s
fees after a bench trial. In their first issue, the Gibsons attack the trial court’s
appointment of the receiver, arguing that the evidence was legally and factually
insufficient to support the appointment of a receiver for their interests. In their
second issue, the Gibsons contend that the evidence is legally insufficient to
support the award of attorney’s fees. We conclude that we lack jurisdiction to
address the trial court’s appointment of the receiver and receiver-related orders.
With regard to the award of attorney’s fees, we conclude that the Gibsons’
arguments lack merit. Therefore, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1998, appellant Greg Gibson and appellee Jose Fernando Cuellar entered
into a contract for deed to real property located on Wallisville Road in Harris
County, Texas. In 2007, Cuellar brought suit against the Gibsons concerning the
sale of said property and performance of the contract. The parties agreed to terms
and filed a rule 11 agreement. On March 31, 2009, an agreed judgment was
entered in the underlying action. However, the Gibsons did not deliver clear title
to Cuellar as agreed in the settlement.

On February 26, 2010, Cuellar again filed suit against the Gibsons, seeking
specific performance of the settlement agreement and damages, including
attorney’s fees.1 Cuellar moved for appointment of a receiver to close the real
estate sale and transfer. On February 21, 2011, the trial court signed an order
appointing a receiver “to take any and all necessary steps to close the real estate
transaction on the parcel of real property . . . as agreed by and between [Cuellar]
and [the Gibsons] in the previous Judgment entered in this Court.” On April 11,

1
The instant case was originally assigned to the 129th District Court and was transferred
to the 11th District Court, where judgment in the underlying suit was entered.

2
2011, based on the receiver’s application to sell the property, the trial court signed
an order that the receiver, in the place of the Gibsons, close on the property in
question. On April 18, 2011, based on the receiver’s report of sale, the trial court
signed a decree confirming the property’s sale to Cuellar.

On March 29, 2012, the trial court held a bench trial on attorney’s fees.
Based on testimony from Cuellar and Cuellar’s attorney, the trial court determined
that Cuellar was entitled to attorney’s fees on his breach of contract claim. On
April 11, 2012, the trial court signed its final judgment against the Gibsons,
awarding Cuellar $40,182.50 in attorney’s fees, plus conditional fees in the event
of appeal.

The Gibsons requested findings of fact and conclusions of law, which the
trial court issued on May 29, 2012. The trial court issued findings that “[t]he
Gibsons’ breach of contract and refusal to participate or attend a closing of the sale
of the property necessitated the appointment of a receiver to close the transaction
on behalf of the Gibsons” and that “[u]pon consideration of [Cuellar’s] Motion to
Appoint a Receiver, the Gibsons’ breach of the Rule 11 Agreement was
determined and through the granting of the relief requested, the Court found that a
breach had occurred.” The court also issued a finding that “Cuellar made a proper,
reasonable demand at least 30 days prior to filing this lawsuit, and otherwise
fulfilled all necessary conditions in order to recover his reasonable and necessary
attorney’s fees.” The Gibsons timely appealed. In two issues, the Gibsons argue
that the trial court erred by appointing a receiver to sell the property and by
awarding Cuellar attorney’s fees.

3
 II. ANALYSIS

A. We lack jurisdiction to review the trial court’s order appointing the
receiver and subsequent receiver-related orders.
In their first issue, in two subparts addressing each of their respective
interests in the subject property, the Gibsons challenge the trial court’s
appointment of the receiver based on legal and factual insufficiency. After
appointing the receiver, the trial court also issued an order approving the receiver’s
application to sell the property and a decree confirming the sale of the property by
the receiver. We conclude that we lack jurisdiction to review the trial court’s
appointment order, and any subsequent receiver-related order, because the appeal
was not timely.2

Section 51.014 of the Civil Practice and Remedies Code expressly
authorizes an appeal from certain “interlocutory orders” of the trial court, including
orders appointing a receiver. TEX. CIV. PRAC. & REM. CODE § 51.014(a)(1) (West
2011). Rule 26.1(b) of the Texas Rules of Appellate Procedure provides that an
interlocutory appeal “must be filed within 20 days after the judgment or order is
signed.” TEX. R. APP. P. 26.1(b); see id. 28.1 (stating appeals from interlocutory
orders, when allowed by statute, are accelerated and are perfected by filing a notice
of appeal “within the time allowed by Rule 26.1(b),” and filing a motion for new
trial, post-trial motion, or request for findings of fact “will not extend the time to
perfect an accelerated appeal”).

Several Texas courts have concluded that where a party seeks to appeal the

2
Even when the parties do not challenge jurisdiction, we must inquire into our
jurisdiction to consider an appeal. Baylor Coll. of Med. v. Hernandez, 208 S.W.3d 4, 7 (Tex.
App.—Houston [14th Dist.] 2006, pet. denied). We provided notice to all the parties that we
questioned our jurisdiction over this issue pursuant to Texas Rule of Appellate Procedure 42.3
and requested letter briefing. The Gibsons did not respond to our request.

4
appointment of a receiver beyond such 20-day period, such appeal is not timely
and should be dismissed. See, e.g., Wells Fargo Bank, N.A. v. JRK Villages at
Meyerland, LLC, No. 01-10-01076-CV, 2011 WL 61170, at *1 (Tex. App.—
Houston [1st Dist.] Jan. 6, 2011, no pet.) (mem. op.) (“[T]his Court has held that
section 51.014(a)(1) requires a party to appeal within 20 days of the original order
appointing a receiver.”); Fortenberry v. Cavanaugh, No. 03-07-00310-CV, 2008
WL 4997568, at *24 (Tex. App.—Austin Nov. 26, 2008, pet. denied) (mem. op.)
(“Given the nature of a receivership, a party’s ability to seek termination or
modification, and the policy reasons behind the twenty-day time limit to appeal,
we conclude that the [appellants] were required to appeal the appointment of the
receiver within twenty days from the [appointment] order.”); Long v. Spencer, 137
S.W.3d 923, 926 (Tex. App.—Dallas 2004, no pet.) (“A challenge to the
receivership order after twenty days has passed is untimely and will be dismissed
by the appellate court.”)3; Boyd v. State, No. 03-03-00734-CV, 2004 WL 210619,
at *1 (Tex. App.—Austin Feb. 5, 2004, no pet.) (mem. op.) (dismissing for want of
jurisdiction appeal challenging order appointing receiver after 91 days); Sclafani v.
Sclafani, 870 S.W.2d 608, 611 (Tex. App.—Houston [1st Dist.] 1993, writ denied)
(same after five years); Revier v. Spragins, 810 S.W.2d 298, 302 (Tex. App.—Fort
Worth 1991, no writ) (same after 87 days); see also Pouya v. Zapa Interests, Inc.,
No. 03-07-00059-CV, 2007 WL 2462001, at *6 (Tex. App.—Austin Aug. 31,
2007, pet. denied) (mem. op.) (“[B]y the time that [appellant] filed the motion to
terminate the receivership, six months had passed after the order appointing the
receiver was entered, much longer than the twenty days necessary for perfecting an
appeal of an interlocutory order. . . . The order appointing the receiver is thus final
3
Long involved orders appointing a receiver and a substitute receiver in the context of a
suit for partition. 137 S.W.3d at 926 (concluding that order appointing receiver and/or order
appointing substitute receiver “should have been appealed following the entry of the relevant
order(s)”).

5
and cannot be collaterally attacked.”).

However, all but one of these cases were decided before Hernandez v.
Ebrom, 289 S.W.3d 316 (Tex. 2009).4 In Hernandez, the Supreme Court allowed
an appeal from an order denying a challenge to an expert report after final
judgment, even though that order was subject to an interlocutory appeal pursuant to
section 51.014(a)(9). Id. at 319–20.

And some lower courts previously have concluded there are other orders,
subject to the interlocutory appeal statute, that courts will still review after final
judgment, such as special appearances. See GJP, Inc. v. Ghosh, 251 S.W.3d 854,
866–67 (Tex. App.—Austin 2008, no pet.) (holding that appellate jurisdiction to
review special appearance rulings was not limited solely to interlocutory appeal
authorized by section 51.014(a)(7)); Canyon (Australia) Pty., Ltd. v. Maersk
Contractors, Pty., Ltd., No. 08–00–00248–CV, 2002 WL 997738, at *4 (Tex.
App.—El Paso May 16, 2002, pet. denied) (not designated for publication)
(concluding that interlocutory appeal was not “mandatory” and trial court’s special
appearance grant could be reviewed on appeal from final judgment); but see Matis
v. Golden, 228 S.W.3d 301, 305 (Tex. App.—Waco 2007, no pet.) (concluding that
challenge to order denying special appearance, raised for the first time on appeal
from final judgment, was untimely because parties failed to bring an interlocutory
appeal).

In addition, although waiver was not expressly at issue, the Supreme Court
has countenanced review after final judgment where a government entity could
have sought interlocutory appeal of the denial of its jurisdictional plea pursuant to
section 51.014(a)(8) but did not. See State ex rel. State Dep’t of Highways & Pub.

4
In JRK-Villages, a memorandum opinion, the First Court of Appeals did not address
Hernandez’s import, if any.

6
Transp. v. Gonzalez, 82 S.W.3d 322, 331 (Tex. 2002); Fed. Sign v. Tex. S. Univ.,
951 S.W.2d 401, 412 (Tex. 1997). Likewise, our court will review, after final
judgment, a previously denied—but not appealed under section 51.014(8)—plea to
the jurisdiction. Larsen v Santa Fe Indep. Sch. Dist., 296 S.W.3d 118, 122 n.2
(Tex. App.—Houston [14th Dist.] 2009, pet. denied).

But there is another line of cases which concludes that certain orders in
proceedings involving receivers are final and must be appealed. See Huston v.
F.D.I.C., 800 S.W.2d 845, 848 (Tex. 1990) (op. on reh’g) (aligning probate
proceedings to receivership proceedings and concluding that “[t]he same standards
apply”). If a trial court enters an order resolving “a discrete issue in connection
with any receivership,” that order “has the same force and effect as any other final
adjudication of a court, and thus, is appealable.” Id. at 847. In Huston, a receiver
was appointed for an insolvent bank. The Texas Supreme Court concluded that the
trial court’s order determining the bank creditors’ entitlement to interest resolved a
discrete receivership issue and thus was an appealable final order. Id. at 846–47;
cf. London v. London, 349 S.W.3d 672, 674–75 (Tex. App.—Houston [14th Dist.]
2011, no pet.) (determining that order which appellant sought review of—denial of
motion for disbursement—did not meet Huston so was not appealable). Because
the appellant did not timely appeal the order—indeed only filing appeal over six
months later when the receivership proceeding was terminated—the court held the
appeal was untimely and the issue was waived. Huston, 800 S.W.2d at 847–49;
see TEX. R. APP. P. 26.1.

Either this appeal involves an interlocutory appeal of the receiver
appointment order, subject to a mandatory accelerated 20-day timetable under rules
26.1 and 28.1,5 or involves final appealable orders resolving the discrete

5
This court has not yet ruled on this precise issue, either before or after Hernandez.
7
receivership-related issues that the property sale should occur and be confirmed,6
subject to the presumptive 30-day timetable of rule 26.1 for perfecting appeal, or
both. In any event, we conclude that the Gibsons have failed to timely perfect their
appeal.

Here, the trial court signed its order appointing the receiver on February 21,
2011. The trial court signed its order approving the property sale on April 11,
2011, and its decree confirming the sale on April 18, 2011. The Gibsons did not
appeal the order appointing the receiver within 20 days, did not appeal the orders
approving and confirming the sale within 30 days, and did not otherwise file
anything to extend the 30-day deadlines. Instead, the Gibsons did not file this
appeal until more than a year and four months after the receiver was appointed, and
more than a year and two months after the receiver effected the sale of the
property. “Allowing the vacation of a receivership at any time after its creation
would work undue hardship on third parties who have dealt in good faith with the
receiver.” Sclafani, 870 S.W.2d at 611. Permitting appeals such as this one also
would work against finality interests. See Huston, 800 S.W.2d at 848; Sclafani,

However, in the context of a bankruptcy proceeding, we considered whether we had jurisdiction
over an appeal from a turnover order that also appointed a receiver. In Wilkins v. State Farm
Mutual Automobile Insurance Co., the appellee argued that the appeal was untimely because the
turnover order appointed a receiver and thus was an interlocutory order, and the appellant filed
his notice of appeal more than 20 days after the turnover order was signed. 58 S.W.3d 176, 179
(Tex. App.—Houston [14th Dist.] 2001, no pet.). While we acknowledged that, “[o]rdinarily,
appointing a receiver begins a proceeding,” and would be interlocutory in nature pursuant to
section 51.041(a)(1) and rules 26.1 and 28.1, we concluded that a “turnover order, however, is a
final order, even though it may appoint a receiver.” Id. (citation omitted). Therefore, we held
that the appellant’s motion for new trial, filed within 30 days of the turnover order, extended the
appellate deadlines and the appeal was timely. Id. at 179–80.
6
See Huston, 800 S.W.2d at 848 (discussing with approval Chapman v. Guaranty State
Bank, 267 S.W. 690, 694 (Tex. Comm’n App. 1924, holding approved), where court determined
that trial court’s order of sale of insolvent bank’s assets and decree of confirmation of sale “have
the same force and effect as any other final adjudication of a court, and are subject to attack only
by such methods as may be available to set aside other decrees”).

8
870 S.W.2d at 611. We conclude that the Gibsons’ appeal of the appointment of
the receiver, and any subsequent receiver-related order, is not timely filed, and we
therefore dismiss this issue for want of jurisdiction.

B. The trial court did not abuse its discretion in awarding attorney’s fees for
breach of contract.
In their second issue, the Gibsons argue that the evidence is not legally and
factually sufficient to support the trial court’s award of attorney’s fees because
Cuellar failed to include a specific request for attorney’s fees under section 38.001
of the Texas Civil Practice and Remedies Code in his live pleading (his second
amended original petition). The Gibsons also contend that Cuellar failed to plead
and prove facts to show presentment of his contract claim to satisfy section 38.002.
Neither of these arguments has merit.

“A person may recover reasonable attorney’s fees . . . in addition to the
amount of a valid claim and costs, if the claim is for . . . an oral or written
contract.” TEX. CIV. PRAC. & REM. CODE § 38.001(8) (West 2011); see Weaver v.
Jamar, 383 S.W.3d 805, 813 (Tex. App.—Houston [14th Dist.] 2012, no pet.). We
review a trial court’s award of attorney’s fees based on breach of contract for an
abuse of discretion. Weaver, 383 S.W.3d at 813. The trial court abuses its
discretion when its decision was arbitrary or unreasonable. Id.

1. The trial court properly allowed Cuellar’s claim for attorney’s fees.

At the bench trial, the Gibsons objected that the trial court should not allow
attorney’s fees because Cuellar did not specifically mention section 38.001 of the
Texas Civil Practice and Remedies Code in his live petition. The trial court
overruled this objection and chose to construe Cuellar’s pleadings as properly
asserting a claim for attorney’s fees under section 38.001. The trial court noted
that, despite not mentioning section 38.001, Cuellar included a claim for attorney’s

9
fees within his breach of the settlement contract claim and generally in his prayer.

The trial court’s treatment of Cuellar’s pleadings is consistent with our case
law. “[I]f a party pleads facts which, if true, entitle him to the relief sought, he
need not specifically plead the applicable statute in order to recover [attorney’s
fees] under it.” Mitchell v. LaFlamme, 60 S.W.3d 123, 130 (Tex. App.—Houston
[14th Dist.] 2000, no pet.); Bellefonte Underwriters Ins. Co. v. Brown, 663 S.W.2d
562, 575 (Tex. App.—Houston [14th Dist.] 1983), rev’d in part on other grounds,
704 S.W.2d 742 (Tex. 1986); see also O’Connell v. Hitt, 730 S.W.2d 16, 18 (Tex.
App.—Corpus Christi 1987, no writ) (citing Bellafonte).

In his live petition, Cuellar alleged that he entered into a settlement
agreement with the Gibsons in connection with the underlying action; that Cuellar
secured financing and was “ready, willing and able to close on the property”; that
the Gibsons failed to deliver title to the property; and that Cuellar has incurred
damages, specifically including “reasonable and necessary attorney’s fees,”
resulting therefrom. If true, these facts as alleged by Cuellar would support the
elements of a breach of contract claim and entitle him to the relief sought. See
Parker Drilling Co. v. Romfor Supply Co., 316 S.W.3d 68, 72 (Tex. App.—
Houston [14th Dist.] 2010, pet. denied) (outlining elements of breach of contract).
Moreover, as the record does not indicate that the Gibsons specially excepted to
Cuellar’s lack of specific identification of section 38.001 in his request for
attorney’s fees, we construe the pleadings liberally in favor of Cuellar. See
Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex. 2000). Thus,
we conclude that the trial court did not abuse its discretion in allowing Cuellar’s
claim for attorney’s fees.

2. The evidence is legally sufficient to meet section 38.002’s
presentment requirement.

10
 We next determine whether Cuellar satisfied the presentment requirement to
recover his attorney’s fees. To recover attorney’s fees, the claimant must present
the claim to the opposing party, and payment must not have been tendered before
30 days have elapsed after the claim is presented. TEX. CIV. PRAC. & REM. CODE
§ 38.002 (West 2011). The claimant bears the burden to plead and prove
presentment of the claim. Ellis v. Waldrop, 656 S.W.2d 902, 905 (Tex. 1983).
The purpose of the presentment requirement is to allow the party against whom the
claim is asserted an opportunity to pay it or tender performance within 30 days
after they have notice of the claim without incurring an obligation for attorney’s
fees. Jones v. Kelley, 614 S.W.2d 95, 100 (Tex. 1981) (applying predecessor
statute to section 38.001 to a suit for specific performance of written contract to
sell property). “No particular form of presentment is required.” Id. The term
“presentment,” as applied in section 38.002, is not defined in the Code; however,
our supreme court has construed the word to mean simply a demand or request for
payment or performance, whether written or oral. See id.; Garner v. Redeaux, 678
S.W.2d 124, 129 (Tex. App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.).

Here, the trial court found that Cuellar met the presentment requirement.7
The evidence shows that notice and presentment of the claim were given to the
Gibsons more than 30 days before Cuellar filed the instant suit. Pursuant to the
rule 11 agreement and agreed judgment in the underlying action, the Gibsons were
required to provide clear title and close on the property within 60 days after March
31, 2009.8 Cuellar testified that he was ready, willing, and able and had “[his]

7
Although the specific finding appears in the trial court’s conclusions of law, it is a fact
finding, and we treat it as such because such designation is not controlling on appeal. See Ray v.
Farmers’ St. Bank of Hart, 576 S.W.2d 607, 608 n.1 (Tex. 1979); Atkin v. Cobb, 663 S.W.2d 48,
53 (Tex. App.—San Antonio 1983, writ dism’d) (characterizing presentment as fact issue).
8
The rule 11 agreement and agreed judgment also provided that Cuellar be awarded
$10,000 in attorney’s fees through the granting of the agreed judgment. Cuellar’s attorney
11
finances” to close on the property as of June 1, 2009, but closing did not occur by
this date. Cuellar testified that the parties attended a court hearing and agreed to a
reset closing date of November 16, 2009, but again the Gibsons failed to close and
provide clear title. The trial court recounted its own recollection of “there being
hearing after hearing in which we all scratched our heads [to] figure out what we
[we]re going to do” due to the continued delay in closing. Cuellar did not file his
original petition in the instant action until over three months later on February 26,
2010. The Gibsons “cannot seriously contend that [they were] unaware that
[Cuellar] was asserting a claim for specific performance in the sale of the real
property.” See Carrington v. Hart, 703 S.W.2d 814, 818 (Tex. App.—Austin
1986, no writ). Moreover, “[t]he reason and purpose of the rule was duly
accomplished and the [Gibsons were] afforded ample opportunity to avoid
attorney’s fees.” See Various Opportunities, Inc. v. Sullivan Invs., Inc., 677
S.W.2d 115, 119 (Tex. App.—Dallas 1984, no writ) (evidence of presentment
sufficient where selling party failed to close on property within 30 days); see also
Allright, Inc. v. Guy, 696 S.W.2d 603, 605 (Tex. App.—Houston [14th Dist.] 1985,
no writ) (explaining that “all that is necessary is the assertion of the right to recover
and a request for recovery” to meet presentment).

We conclude this evidence, viewed in the light most favorable to the
challenged finding, would enable a reasonable and fair-minded fact finder to find
that Cuellar met the presentment requirement. See City of Keller v. Wilson, 168
S.W.3d 802, 827 (Tex. 2005); Carrington, 703 S.W.2d at 818; Garner, 678
S.W.2d at 129; Various Opportunities, 677 S.W.2d at 119–20; Atkin v. Cobb, 663
S.W.2d 48, 53 (Tex. App.—San Antonio 1983, writ dism’d). Therefore, the trial

testified to reasonable and necessary fees totaling $50,182.50 at the bench trial. Thus, the trial
court credited the Gibsons for this $10,000 when it awarded Cuellar $40,182.50 in the instant
final judgment.

12
court did not abuse its discretion in awarding Cuellar attorney’s fees, and we
overrule this issue.

III. CONCLUSION

We conclude that we lack jurisdiction over the Gibsons’ first issue. Having
overruled the Gibsons’ sole remaining issue, we affirm the trial court’s final
judgment.

/s/ Tracy Christopher
Justice

Panel consists of Justices Brown, Christopher, and McCally.

13