Sun Tec Computer, Inc. v. the Recovar Group, LLC, Tax Debt Acquisition Company, LLC

ACCEPTED
05-14-00257-CV
FIFTH COURT OF APPEALS
DALLAS, TEXAS
3/5/2015 11:10:46 AM
LISA MATZ
CLERK

FILED IN
5th COURT OF APPEALS
DALLAS, TEXAS
3/6/2015 9:12:00 AM
LISA MATZ
Clerk
KELLY J. CURNUTT
DIRECT DIAL - (817) 548-1180
EMAIL – KCurnutt@CurnuttHafer.com

March 5, 2015

VIA EFILE
Fifth Court of Appeals
Attn: Lisa Matz, Clerk of the Court
600 Commerce Street, Suite 200
Dallas, Texas 75202

Re: Sun Tec Computer Inc., et al. v. The Recovar Group, LLC, et al.; Case No. 05-
14-00257-CV, Fifth Court of Appeals, Dallas, Texas

Dear Ms. Matz:

Following the March 3, 2015 submission by oral argument in the above-referenced cause,
Appellants’ counsel, Emil Lippe, Jr., filed a post-submission letter brief to the Court asking for
leave to file said letter brief. Appellee, Tax Debt Acquisition Company, LLC (“TDAC”), hereby
submits its post-submission letter brief and, should the Court grant leave to Appellants to file
their post-submission letter brief, TDAC asks for leave to submit this post-submission letter brief
in response.

Appellants raise two brand-new arguments in their post-submission brief: (1) that they
previously moved for the 2013 case to be consolidated into the 2010 case, and that this somehow
precluded the trial court from entering judgment in the 2013 case, despite the fact that the Court
never ruled on the motion to consolidate; and (2) that Section 64.052 of the Texas Civil Practice
and Remedies Code somehow authorizes Appellants’ collateral attack of the turnover order and
the receiver’s sale in the 2010 case.

As a preliminary matter, TDAC points out that the two arguments raised in Appellants’
post-submission brief were not raised in Appellants’ Brief. Accordingly, Appellants have
waived the arguments they are now making. See, e.g., Dallas County v. Gonzalez, 183 S.W.3d
94, 104 (Tex. App.—Dallas 2006, pet. denied) (holding that issue presented for first time in a
reply brief was not properly before the Court); City of Houston v. Precast Structures, Inc., 60
S.W.3d 331, 340 n. 4 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (argument waived
where raised for first time in letter brief filed after oral argument); Tex. Med. Ass’n v. Tex.
Fifth Court of Appeals
Attn: Lisa Matz, Clerk of the Court
March 5, 2015
Page 2

Workers Comp. Comm’n, 137 S.W.3d 342, 351 (Tex. App.—Austin 2004, no pet.) (argument
waived where asserted during oral argument and in post-submission brief, but not in pre-
submission brief); Green v. Texas Dep’t of Protective & Regulatory Servs., 25 S.W.3d 213, 210
(Tex. App.—El Paso 2000, no pet.) (“This argument, however, was not raised in Appellant’s
brief and has therefore been waived.”).

Even if the Court were to consider Appellants’ two new post-submission arguments,
nothing would change the fact that the trial court’s judgment should be affirmed. As to the first
argument, Appellants contend that they filed a motion to consolidate the 2013 case into the 2010
case prior to the summary judgment ruling in TDAC’s favor. See C.R. 663-665. Appellants
never set that motion for hearing, and they even admit in their post-submission brief that they
never obtained a ruling on that motion. As Appellants did not obtain a ruling on their motion,
they have waived any error regarding the motion. See, e.g., McLemore v. Johnston, 585 S.W.2d
347, 349 (Tex. Civ. App.—Dallas 1979, no writ) (“Appellee’s complaint was not ruled upon in
the trial court and was therefore waived.”); Well Solutions, Inc. v. Stafford, 32 S.W.3d 313, 316
(Tex. App.—San Antonio 2000, no pet.) (“a complaint is preserved for appellate review only if
the record establishes the complaint was made known to the trial court in a timely manner, and
the trial court ruled on the complaint.”); In re C.A.W.P., No. 13-12-00382-CV, 2014 Tex. App.
LEXIS 9914, at *7 (Tex. App.—Corpus Christi Sept. 4, 2014, pet. denied) (motion that was not
ruled upon by the trial court “presents nothing for review”).

In their second argument, Appellants contend that Section 64.052 of the Texas Civil
Practice and Remedies Code somehow authorizes their collateral attack of the turnover order and
the receiver’s sale in the 2010 case. Section 64.052 is simply a statute authorizing direct claims
against a receiver for damages. Nothing about Section 64.052 authorizes a court to invalidate a
turnover order issued by another court, nor authorizes a court to invalidate actions taken by a
receiver appointed by another court. This is particularly true where, as here, the receiver was
named simply as a “nominal defendant.” See C.R. 447 (“Defendant Michael Lawrence, Receiver
of Sun Tec Computer, Inc., is a nominal defendant only herein, named solely because he was the
Court-appointed Receiver for Sun Tec. No relief, other than an injunction and order declaring
void his prior assignment of causes of action to TDAC, is being sought against such nominal
defendant, and no personal liability is being asserted against him.”).

Notably, as stated in Campbell v. Wood, 811 S.W.2d 753, 756 (Tex. App.—Houston [1st
Dist.] 1991, no writ), a case construing Section 64.052, the First Court of Appeals held:

A receiver may sue and be sued in a court, other than the court that
appointed the receiver, as long as the second court does not take any
action to disturb the possession, control, or management of the property
by the receiver, or that would conflict with any order of the appointing
court about its control of the receivership property. [Emphasis added]
Fifth Court of Appeals
Attn: Lisa Matz, Clerk of the Court
March 5, 2015
Page 3

Here, of course, Appellants expressly seek to disturb the possession, control, or
management of the property by the receiver. Namely, they are trying to unwind the receiver’s
sale of Sun Tec Computer, Inc.’s causes of action to TDAC, and seek a finding that such causes
of action are truly owned by Liberty Tech Computer Worldwide, Inc. See C.R. 452-454. As
made clear in TDAC’s Brief, and during oral argument, such relief is only available to
Appellants in the 2010 case, not the present 2013 case. See Scheel v. Alfaro, 406 S.W.3d 216,
222 (Tex. App.—San Antonio 2013, pet. denied) (“Appellees contend the trial court had
continuing jurisdiction over the receiver’s sale and, therefore, it had jurisdiction to set aside the
sale. We agree with appellees.”).

Simply put, nothing about Appellants’ new arguments changes the fact that Appellants
are in the wrong case. The judgment of the trial court should be affirmed.

Respectfully,

/s/Kelly J. Curnutt

cc: Emil Lippe, Jr. (via e-service)