ACCEPTED
03-15-00128-CV
7209261
THIRD COURT OF APPEALS
AUSTIN, TEXAS
10/2/2015 2:24:20 PM
JEFFREY D. KYLE
CLERK
CAUSE NUMBER 03-15-00128-CV
IN THE COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
FOR THE THIRD COURT OF APPEALS DISTRICT
10/2/2015 2:24:20 PM
AUSTIN, TEXAS JEFFREY D. KYLE
Clerk
TEDDE R. BLUNCK,
Appellant,
V.
CATHY A. BLUNCK,
Appellee.
ON APPEAL FROM THE 22ND DISTRICT COURT, HAYS COUNTY,
TEXAS
TRIAL COURT CAUSE NO. 11-1217
APPELLANT’S REPLY BRIEF
RESPECTFULLY SUBMITTED:
TEDDE R. BLUNCK, PRO SE
502 QUITMAN STREET
P O BOX 1152
PITTSBURG, TEXAS 75686
TELEPHONE: (903) 855-8460
TELECOPIER: (903) 855-8465
E-MAIL: tblunck@yahoo.com
i
Identity of Parties and Counsel
Appellant/Petitioner: Petitioner/Appellant’s Appellate Counsel:
Tedde R. Blunck Tedde R. Blunck, Pro Se
502 Quitman Street 502 Quitman Street
P O Box 1152 P O Box 1152
Pittsburg, Texas 75686 Pittsburg, Texas 75686
Telephone: (903) 855-8460 Telephone: (903) 855-8460
Telecopier: (903) 855-8465 Telecopier: (903) 855-8465
E-mail: tblunck@yahoo.com E-mail: tblunck@yahoo.com
Appellee/Respondent: Respondent/Appellee’s Appellate Counsel:
Cathy A. Blunck Mr. Karl E. Hays
1433 Preston Road, Suite 1707 Law Office of Karl E. Hays, PLLC
Dallas, Texas 75254 2101 South Highway 35, Suite 210
Mobile: (214) 668-9468 Austin, Texas 78741
Telecopier: unknown Telephone: (512) 476-1911
E-mail: cablunck@yahoo.com Telecopier: (512) 476-1904
service@haysfamilylaw.com
____________________________________________________
Respectfully Submitted:
Tedde R. Blunck, Pro Se
502 Quitman Street
P O Box 1152
Pittsburg, Texas 75686
Telephone: (903) 855-8460
Telecopier: (903) 855-8465
E-mail: tblunck@yahoo.com
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ii
TABLE OF CONTENTS iii
INDEX OF AUTHORITIES iv
ISSUES PRESENTED 1
STATEMENT OF FACTS 1
ARGUMENT AND AUTHORITIES 2
PRAYER 10
CERTIFICATE OF NUMBER OF WORDS IN BRIEF 11
CERTIFICATE OF SERVICE 11
APPENDIX 12
iii
INDEX OF AUTHORITIES
CASES PAGE(S)
Bergeron v. Sessions,
561 S.W.2d 551 (Tex. Civ. App.--Dallas 1977, writ ref'd n.r.e.) 9
Freedom Commc'ns, Inc. v. Coronado,
372 S.W.3d 621 (Tex. 2012) 4
In re Shifflet,
462 S.W.3d 528 (Tex. App.—Houston [1st Dist.] 2015), no pet.) 5
In the Interest of E.W.,
2015 Tex. App. LEXIS 6588, (Tex. App.—Texarkana, 2015), no pet.) 5
Perez v. Williams,
2015 Tex. App. LEXIS 9059,
(Tex. App.—Houston [1st Dist.] 2015), no pet.) 4
Stephenson v. LeBoeuf,
2003 Tex. App. LEXIS 7967,
(Tex. App. -- Houston [14th Dist.] 2003, no pet.) 8
Williams Farms Produce Sales, Inc. v. R&G Produce Co.,
443 S.W.3d 250, (Tex. App.-Corpus Christi, no pet.) 7
STATUTES
Texas Civil Practice & Remedies Code § 31.002 3
RULES
Texas Rules of Appellate Procedure 38.1(g) 2
Texas Rules of Evidence 201(b) 4
Texas Rules of Evidence 902(1)(a) 5
iv
CAUSE NUMBER 03-15-00128-CV
IN THE COURT OF APPEALS
FOR THE THIRD COURT OF APPEALS DISTRICT
AUSTIN, TEXAS
TEDDE R. BLUNCK,
Appellant,
V.
CATHY A. BLUNCK,
Appellee.
ON APPEAL FROM THE 22ND DISTRICT COURT, HAYS COUNTY,
TEXAS
TRIAL COURT CAUSE NO. 11-1217
APPELLANT’S REPLY BRIEF
REPLY BRIEF OF APPELLANT
__________
TO THE HONORABLE COURT OF APPEALS, FIFTH DISTRICT OF TEXAS:
Tedde R. Blunck files this Appellant reply brief which is filed as a
supplement to Appellant’s Brief and prays that the judgment of the District Court
be reversed and that the turn-over order issued by the District Court be vacated.
0
ISSUES PRESENTED
I. Whether the District Court abused its discretion by entering an Order for
turnover relief without any evidence in the record supporting the finding that
Appellant had any non-exempt property that cannot be readily attached or
levied on by ordinary legal process.
II. Whether the District Court abused its discretion because the turnover relief
ordered by the District Court is insufficiently specific regarding the property
to be turned over and extends to exempt property and property of third
parties.
III. Whether the Court abused its discretion when it awarded the Receiver, who
is an attorney, a fee of $300 per hour for all receiver services, his hourly rate
as an attorney, without consideration of a lesser reasonable fee when
performing non-attorney functions and when there is no evidence in the
record to support that the fees are usual and customary or reasonable and
necessary.
STATEMENT OF FACTS
In Appellee’s Statement of the Facts, Appellee argues that Appellant
chooses to interject both argument and opinion in his recitation of the pertinent
facts regarding the case. Appellee argues that her version of the Statement of the
Facts should be the only facts considered by the Court. Appellee’s Statement of
1
the Facts is quite limited and not in disagreement with the Appellant’s Statement of
the Facts. Appellant’s Statement of the Facts is significantly more detailed.
Appellee only disagrees in general and denies all of the Statement of the Facts
provided by the Appellant. The Appellee does not point out to the Court any
particular or specific facts cited by the Appellant that are incorrect or with which
Appellee takes exception. Texas Rules of Appellate Procedure, Rule 38.1(g) states
in pertinent part: “In a civil case, the court will accept as true the facts stated
unless another party contradicts them.” No facts provided by the Appellant were
contradicted by the Appellee. The Appellee only generally denied all of the facts
provided by the Appellant and asked the Court to substitute the Appellee’s version
of the facts, which are only a shortened version of the facts provided by the
Appellant. Appellant requests of the Court accept as true all of the relevant facts
provided by the Appellant, not just the abbreviated version of the facts provided by
the Appellee.
ARGUMENT AND AUTHORITIES
I. THE DISTRICT COURT ABUSED ITS DISCRETION WHEN IT
ENTERED AN ORDER FOR TURNOVER RELIEF WITHOUT ANY
EVIDENCE IN THE RECORD SUPPORTING THE FINDING THAT
APPELLANT HAD ANY NON-EXEMPT PROPERTY THAT CANNOT
BE READILY ATTACHED OR LEVIED ON BY ORDINARY LEGAL
2
PROCESS.
The trial court must have some evidence to establish the necessary
conditions for the application of Texas Civil Practice & Remedies Code § 31.002
exist.
Appellee argues that the evidence necessary to establish the basis for the
District Court’s order stems from the evidence obtained through judicial notice of
the file and the Final Decree of Divorce signed by the District Court on 24 October
2012.
Court Record at Volume 2, page 15 states:
MR. HAYS: I'm asking the court to do two things. One, is first take
judicial notice of the file and the decree of divorce.
THE COURT: The request is granted.
MR. HAYS: And that, in and of itself, reflects the property that was
awarded to Ms. Blunck. And it is that property, various items of
property that we're asking for the court to appoint a receiver to be able
to recover.
Appellee states in her brief: “The Final Decree of Divorce reflects that
Appellant was awarded, among other property, an interest in two timeshares, seven
separate bank accounts, life insurance policies insuring Appellant's life as well as a
life insurance policy insuring the life of a third party, travel and hotel award
benefits, timber and mineral interests, loan proceeds from various loans, and a note
receivable. All of these items constitute property that cannot readily be attached or
3
levied on by ordinary legal process.” Appellee does not make this argument to the
District Court. The Appellee provides no evidence to the District Court that any of
the aforementioned items still exist in the possession of the Appellant at the time of
the hearing, some three years after the rendition of the Divorce Decree. The
Appellee has performed no post-judgment discovery in order to represent to the
District Court that the items mentioned in the Divorce Decree still exist at the time
of the hearing in the possession of the Appellant and are in a form that cannot
readily be attached or levied on by ordinary legal process.
The Court in Perez v. Williams, 2015 Tex. App. LEXIS 9059 at 24 states:
“To be the proper subject of judicial notice, an adjudicative fact must be "either (1)
generally known within the territorial jurisdiction of the trial court or (2) capable of
accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned." Tex. R. Evid. 201(b); Freedom Commc'ns, Inc. v.
Coronado, 372 S.W.3d 621, 623 (Tex. 2012).” Perez v. Williams, 2015 Tex. App.
LEXIS 9059, (Tex. App.—Houston [1st Dist.] 2015), no pet.) The accuracy of
whether any of the items mentioned in a three year old order currently existed at
the time of the hearing is subject to question, without further proof of their
existence. Additionally, the District Court took judicial notice of the entire file,
including the Final Decree of Divorce. The entire file contains such things as
pleadings, prior testimony, affidavits and the like that cannot be judicially noticed.
4
[W]hile the trial court can take judicial notice of the existence of certain
documents in its records, it may not take judicial notice of the truth of factual
statements and allegations contained in the pleadings, affidavits, or other
documents in the file. In the Interest of E.W., 2015 Tex. App. LEXIS 6588 at 18,
(Tex. App.—Texarkana, 2015), no pet.) "When evidence is the subject of
improper judicial notice, it amounts to no evidence." In re Shifflet, 462 S.W.3d
528, 539 (Tex. App.—Houston [1st Dist.] 2015), no pet.).
Appellee states in her brief the following: “Contrary to Appellant's
assertion, the trust document that Appellee offered into evidence at the hearing on
her request for turnover relief (Movant's Ex. 1) was a certified copy of "The Tedde
R. Blunck Living Trust" and therefore was self-authenticating under Rule
902(1)(A) of the Texas Rules of Evidence.” It should be noted that in Schedule A
of the Trust Document submitted to the Court, pages 27 and 28 of 32 are missing.
The County Clerk would not certify an incomplete document. Even though the
original of the referenced document was recorded, it had been modified in the form
of the document provided by the Appellee to the District Court as Exhibit 1, which
was never recorded and therefore could not have been certified. The fact that this
document was never recorded is evidenced by an Affidavit of the Camp County
Clerk, attached hereto as Exhibit No. 1. Appellee’s assertions to the District Court
and to this Court that the document known as Movant’s Exhibit No. 1, The Tedde
5
R. Blunck Living Trust, was certified by the County Clerk amounts to nothing less
than fraud, for which the Appellee should be appropriately sanctioned.
Volume 2, Page 19 of the Court Record, states in pertinent part: “Your
Honor, I have one additional thing that I wanted to provide to the court. I have
marked as Movant's 2 -- Mr. Breeden already mentioned this and the court knows
it. Mr. Blunck declared bankruptcy. And as the court knows, you specifically asked
the bankruptcy court for permission to be able to go against Mr. Blunck, and the
bankruptcy court has granted you that permission.
They have also -- these particular debts are outside of the bankruptcy.
There's a court order that says specifically we can collect these. He's in a Chapter
13 plan. These reason why I'm presenting -- these are the schedules that Mr.
Blunck submitted. And in those schedules Mr. Blunck represented to the
bankruptcy court that he had exempt property, in addition to what we showed you
with the trust and the contract rights that can be executed pursuant to the turnover
order.
There is [sic] also exempt properties in terms that there's a number of
firearms that he lists in here as being exempt property. [emphasis added] There's
equity interest in properties. And I would tender that to the court and move for its
admission because it's a representation by him that he had over $200,000 of
6
nonexempt property that he is still in possession of, that [sic] we want. Because if
it's over $200,000, it will go a long way toward settling this judgment of 242,000.”
The Appellant contends that the documents of the Bankruptcy Court were
not properly authenticated. Appellee contends that the document, even though not
certified as an exact copy by the Bankruptcy Court is self-authenticating relying on
Williams Farms Produce Sales, Inc. v. R&G Produce Co., 443 S.W.3d 250, (Tex.
App.-Corpus Christi, no pet.). Williams held that documents printed from
government websites are self-authenticating. Id. at 259. Also see Williams at
Footnote 7, Id. at 259. A close review of the schedules submitted to the District
Court as Movant’s Exhibit 2 will show that there is no indication whatsoever that
they were printed from a government website. There is no internet domain address
and there is no date of printing. The schedules submitted to the District Court
clearly were not printed from the Bankruptcy Court website. In fact, Appellee
does not even argue that the schedules were printed from the Bankruptcy Court
website. Additionally, there was no evidence, testimony or argument of counsel
alleging that the schedules were printed from the Bankruptcy Court website.
However, even if self-authenticated as argued by Appellee, the evidence of
exempt property is not grounds for awarding a turnover order against Appellant.
Additionally, the schedules in Bankruptcy court were filed over two years ago.
Appellee asserts to the District Court that because of the schedules, there is over
7
$200,000 in nonexempt property that is still in the Appellant’s possession. The
creditor must show the trial court that: "(1) the debtor owns the property, (2) the
property cannot be readily attached, and (3) the property is not exempt."
Stephenson v. LeBoeuf, 2003 Tex. App. LEXIS 7967, 2003 WL 22097781 at *2
(Tex. App. -- Houston [14th Dist.] 2003, no pet.). There is no evidence to prove
that there is any nonexempt property in the possession of the Appellant at the time
of the hearing. The evidence purportedly submitted to the District Court as
Movant’s Exhibit No. 1, The Tedde R. Blunck Living Trust, Schedule A, shows to
the contrary, as it includes all of the property listed on the Bankruptcy schedules as
non-exempt, making all such property exempt. This is a fact of which Appellee is
fully aware. The Court Record, Volume 2, Page 11 states as follows: MR. HAYS:
“I'm moving for the admission of Movant's 1, which is the Living Trust in which
Mr. Blunck transferred all of his property.” (emphasis added)
III. THE DISTRICT COURT ABUSED ITS DISCRETION WHEN IT
AWARDED THE RECEIVER, WHO IS AN ATTORNEY, A FEE OF $300
PER HOUR FOR ALL RECEIVER SERVICES, HIS HOURLY RATE AS
AN ATTORNEY, WITHOUT CONSIDERATION OF A LESSER
REASONABLE FEE WHEN PERFORMING NON-ATTORNEY
FUNCTIONS AND WHEN THERE IS NO EVIDENCE IN THE RECORD
TO SUPPORT THAT THE FEES ARE USUAL AND CUSTOMARY OR
8
REASONABLE AND NECESSARY.
Appellee argues that the District Court only established the hourly rate of the
Receiver, and did not set the Receiver’s fee. To establish the Receiver’s fee under
the turnover order, is purely a mathematical computation which takes the numbers
of hours of the Receiver’s service times the hourly rate set by the Court. None of
the factors required to be considered by the Court were considered in establishing
the hourly rate.
The value of a receiver's services determines the appropriate amount of
compensation. Bergeron v. Sessions, 561 S.W.2d 551, 554 (Tex. Civ. App.--Dallas
1977, writ ref'd n.r.e.). To determine the value of a receiver's services, courts
consider the following factors:
(1) the nature, extent and value of the administered estate;
(2) the complexity and difficulty of the work;
(3) the time spent;
(4) the knowledge, experience, labor and skill required of, or devoted by the
receiver;
(5) the diligence and thoroughness displayed; and
(6) the results accomplished.
The District Court abused its discretion when it found that the Receiver’s
fees requested were usual and customary. In fact in the words of the Court, it was
9
not even convinced, based on the argument of counsel, that the fee requested was
reasonable, see Court Record, Volume 2, Page 25: “[T] the amount of $300 per
hour is approved as being probably under the fair market value of what receivers
are paid in these types of matters.” There was no evidence presented to the Court
and the Court performed no analysis to come to the conclusion espoused. The
District Court clearly abused its discretion in setting the Receiver’s hourly rate at
$300.
PRAYER
Appellant Tedde R. Blunck respectfully prays that the Judgment of the
District Court granting the Turnover Order be reversed and the Turnover Order be
vacated in all respects.
10
CERTIFICATE OF THE NUMBER OF WORDS CONTAINED IN BRIEF
I hereby certify in accordance with Texas Rules of Appellate Procedure 9.4(i)(3)
that the Appellant’s brief contains 2,850 words.
Tedde R. Blunck
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the above Appellant’s Brief was served on Karl
Hays, 2101 South Highway 35, Suite 210 Austin, Texas 78741, attorney for
Appellee Cathy A. Blunck in accordance with the Texas Rules of Appellant Civil
Procedure on October 2, 2015.
Tedde R. Blunck
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CAUSE NUMBER 03-13-00074-CV
IN THE COURT OF APPEALS
FOR THE THIRD COURT OF APPEALS DISTRICT
AUSTIN, TEXAS
TEDDE R. BLUNCK,
Appellant,
V.
CATHY A. BLUNCK,
Appellee.
ON APPEAL FROM THE 22ND DISTRICT COURT, HAYS COUNTY,
TEXAS
TRIAL COURT CAUSE NO. 11-1217
APPENDIX -EXHIBITS TO APPELLANT’S REPLY BRIEF
RESPECTFULLY SUBMITTED:
TEDDE R. BLUNCK, PRO SE
502 QUITMAN STREET
P O BOX 1152
PITTSBURG, TEXAS 75686
TELEPHONE: (903) 855-8460
TELECOPIER: (903) 855-8465
EMAIL: tblunck@yahoo.com
12
TABLE OF CONTENTS
Exhibit No. 1 1
0