COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00358-CV
Gilda M. Brawley § From the 325th District Court
§ of Tarrant County (325-427357-07)
v.
§ December 6, 2012
Cherri Huddleston § Opinion by Justice Meier
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was error in the trial court’s judgment awarding Appellee Cherri Huddleston
receivership and attorney’s fees. It is ordered that the judgment of the trial court
is reversed and we render a judgment that Appellee Cherri Huddleston take
nothing on her intervention for receivership fees.
It is further ordered that Appellee Cherri Huddleston shall pay all costs of
this appeal, for which let execution issue.
SECOND DISTRICT COURT OF APPEALS
By_________________________________
Justice Bill Meier
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00358-CV
GILDA M. BRAWLEY APPELLANT
V.
CHERRI HUDDLESTON APPELLEE
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FROM THE 325TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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In two issues, Appellant Gilda M. Brawley appeals from a judgment
awarding Appellee Cherri Huddleston receivership fees. We will reverse and
render judgment in favor of Gilda.
Gilda and her husband, Samuel Brawley, were involved in divorce
proceedings when on June 2, 2009, the trial court appointed Huddleston receiver
1
See Tex. R. App. P. 47.4.
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of a property owned by the Brawleys. Huddleston’s primary responsibility—
according to the order appointing her receiver—was to sell the property.
Soon thereafter, Gilda filed a motion for new trial (1) referencing a letter
issued by the trial court on May 29, 2009, that apparently set out the trial court’s
proposed property division in the divorce; (2) arguing that the trial court’s
property division was ―grossly disproportionate, unjust and without justification‖;
and (3) requesting that the order appointing a receiver be set aside.2 The trial
court denied the motions for new trial.
On September 1, 2009, Huddleston filed a ―Motion for Enforcement of
Receivership,‖ alleging that she had been unable to fully perform her duties as
receiver because of various conflicts that she had encountered with Gilda and
Samuel. A few weeks later, the trial court signed an order dismissing the
Brawleys’ divorce action but indicating that Huddleston’s ―request . . . for
payment survives.‖
On October 13, 2009, Huddleston filed her first amended post-judgment
petition in intervention for receivership fees, requesting ―recovery for the
reasonable value of the services [that she] performed‖ as receiver and attorney’s
fees. After a hearing on the petition, the trial court issued a letter finding that
Huddleston was entitled to recover $5,700 for her services rendered as receiver
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Samuel also filed a motion for new trial challenging the trial court’s
proposed property division.
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and $1,591 in attorney’s fees. The trial court signed a final judgment awarding
Huddleston the same in June 2011.
In her first issue, Gilda argues that the trial court abused its discretion by
appointing Huddleston receiver of the Brawleys’ property. She contends that
there was no risk of harm to the property and that neither party requested that a
receiver be appointed.
In addition to pointing out that Gilda never pursued an interlocutory appeal
of the order appointing a receiver, Huddleston responds that Gilda designated
only a partial reporter’s record but failed to comply with rule of appellate
procedure 34.6(c)(1). Huddleston contends that we must therefore presume that
the non-designated portions of the record support the trial court’s decision to
appoint a receiver. We address this contention first.
An appellant may pursue an appeal on a partial reporter’s record if he
includes a statement of points or issues to be presented on appeal in his request
for the reporter’s record. Tex. R. App. P. 34.6(c)(1). Any other party may then
designate additional portions of the record that they believe are relevant to the
appeal, and the appellate court will presume that the partial reporter’s record
constitutes the entire record for purposes of reviewing the stated points or issues.
Tex. R. App. P. 34.6(c)(2), (4).
But in Bennett v. Cochran, the supreme court held that the statement of
points or issues need not be included in the request for the reporter’s record so
long as the statement is made at such a time that the other side’s appellate
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posture is not impaired. 96 S.W.3d 227, 229 (Tex. 2002). Bennett’s tardy
statement of points or issues was sufficient to satisfy rule 34.6(c) because
Cochran had more than two months after he first received notice of Bennett’s
statement of issues to file his appellee’s brief, and Cochran did not argue that
Bennett’s delay prevented him from identifying the relevant issues or
supplementing the reporter’s record or that he had insufficient time to adequately
prepare his appellate arguments. Id. at 229–30. The supreme court thus
―adopted a more flexible approach in certain cases . . . when a rigid application of
Rule 34.6 would result in denying review on the merits, even though the appellee
has not established any prejudice from a slight relaxation of the rule.‖ Id. at 229.
Here, the only trial court proceeding that Gilda designated to be included in
the reporter’s record was the November 20, 2009 hearing on Huddleston’s action
to recover receivership fees. Gilda did not include a statement of points with the
request, but she did indicate in her notice of appeal that she intended to
challenge the trial court’s judgment awarding Huddleston receivership and
attorney’s fees. See Melton v. Toomey, 350 S.W.3d 235, 237 (Tex. App.—San
Antonio 2011, no pet.) (holding that statement of points in notice of appeal
sufficient to invoke rule 34.6(c)(4) presumption). Moreover, to the extent that
Huddleston harbored any lingering doubts about the issues that Gilda intended to
raise, Gilda’s appellate brief unambiguously identified her intent to challenge the
trial court’s decision to appoint Huddleston receiver, and several months elapsed
between when Gilda filed her brief and when Huddleston filed her brief. Thus,
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Huddleston had an opportunity to request that the reporter’s record be
supplemented with additional trial court proceedings, including the hearing at
which the parties apparently litigated the property division, which preceded the
trial court’s order appointing Huddleston receiver, and she does not argue that
she had insufficient time to prepare her arguments or that she was otherwise
prejudiced. Therefore, because Huddleston could have designated additional
trial court proceedings that she may have considered relevant to the issues
raised by Gilda but did not do so, and because she does not argue that she was
prejudiced by Gilda’s failure to strictly comply with rule 34.6(c), we will implement
rule 34.6(c)(4)’s presumption that the reporter’s record as designated constitutes
the entire record for purposes of reviewing Gilda’s issues. See Tex. R. App. P.
34.6(c)(4); Bennett, 96 S.W.3d at 229–30.
The family code permits the trial court to appoint a receiver during a suit for
dissolution of a marriage for the preservation and protection of the property of the
parties. Tex. Fam. Code Ann. § 6.502(a)(5) (West 2006). We will not disturb the
trial court’s order appointing a receiver absent an abuse of discretion. Norem v.
Norem, 105 S.W.3d 213, 216 (Tex. App.—Dallas 2003, no pet.). A trial court
abuses its discretion if the court acts without reference to any guiding rules or
principles, that is, if the act is arbitrary or unreasonable. Low v. Henry, 221
S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex.
2004).
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At the hearing on November 20, 2009, Huddleston testified about her fees
and the problems that she had encountered dealing with Gilda and Samuel when
attempting to perform her duties as receiver. Although she acknowledged that
Gilda’s and Samuel’s attorneys had told her not to proceed with the sale of the
property, she explained that she only takes instructions from the trial court and
that she had continued to perform services as receiver because she was abiding
by the order of the court to do so. Gilda testified that she had informed
Huddleston that she and Samuel did not want to sell the house, and Samuel
testified that he told Huddleston that they were going to sell the property at a later
date. Thus, the hearing consisted of Gilda and Samuel questioning Huddleston
as to why she continued to perform receivership services after being told not do
so and Huddleston explaining that she had an obligation to perform services as
receiver until ordered otherwise. There was no testimony or evidence relating to
whether the appointment of a receiver was necessary for the preservation and
protection of the Brawleys’ property. See Tex. Fam. Code Ann. § 6.502(a)(5).
Huddleston additionally argues that Gilda’s first issue is unpersuasive
because she did not pursue an interlocutory appeal of the order appointing a
receiver, as she could have done, see Tex. Civ. Prac. & Rem. Code Ann.
§ 51.014(a)(1) (West Supp. 2012); Tex. Fam. Code Ann. § 6.507 (West 2006),
but Huddleston directs us to no authority holding that Gilda’s decision to not
pursue an interlocutory appeal of the order appointing a receiver somehow
prohibits her from raising the same issue now in a direct appeal after a final
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judgment has been entered. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)
(stating that a person ―may‖ appeal from an interlocutory order under certain
circumstances).
We hold that the trial court abused its discretion by appointing Huddleston
receiver. We sustain Gilda’s first issue and do not address her second issue.
See Tex. R. App. P. 47.1. Having sustained Gilda’s first, dispositive issue, we
reverse the trial court’s judgment awarding Huddleston receivership and
attorney’s fees and render judgment that Huddleston take nothing on her
intervention for receivership fees.
BILL MEIER
JUSTICE
PANEL: GARDNER, MCCOY, and MEIER, JJ.
DELIVERED: December 6, 2012
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