Reversed and Remanded and Opinion on Rehearing filed August 13, 2019.

In The 

Fourteenth Court of Appeals 

NO. 14-17-00670-CV

HAMILTON METALS, INC., Appellant 

V.

GLOBAL METAL SERVICES, LTD., Appellee 

On Appeal from the 11th District Court 

Harris County, Texas 

Trial Court Cause No. 2016-32078 

O P I N I O N ON R E H E A R I N G 1

In this appeal a judgment debtor challenges the trial court’s order appointing 

a receiver under section 31.002(b) of the Texas Civil Practice and Remedies Code. 

Because evidence in the record shows that the judgment debtor had certain assets, 

we conclude that the trial court did not err in granting the receivership order as to 

 

1 On January 8, 2019, this court granted rehearing, vacated our judgment of November 27, 2018,

withdrew the opinion in this case issued on November 27, 2018, and ordered this case 

resubmitted to a panel consisting of Chief Justice Frost and Justices Wise and Zimmerer.
2

these assets. Likewise, because the evidence does not show that the judgment 

debtor owned any other property, we conclude the trial court abused its discretion 

in granting the receivership order as to any other assets. We reverse and remand. 

I. FACTUAL AND PROCEDURAL BACKGROUND

The trial court rendered a final money judgment on October 2, 2016, in favor 

of appellee/plaintiff Global Metal Services, Ltd. and against appellant/defendant 

Hamilton Metals, Inc. (“Judgment”). Global initiated a garnishment proceeding 

against PNC Bank, N.A., a financial institution holding three accounts in the name 

of Hamilton Metals, Inc. (“Hamilton”). 

Global filed an “Amended Ex Parte Application for Turnover After 

Judgment and for Appointment of Receiver,” asserting that it held and owned the 

Judgment. According to Global, before seeking turnover relief Global made 

several attempts to contact Hamilton, and Global recorded various abstracts of 

judgment in the real property records of various Texas counties. Global also noted 

that it had initiated the garnishment proceeding against PNC Bank. Global 

asserted that none of these actions resulted in the collection of any money to be 

credited against the Judgment. Global noted that it had come to Global’s attention 

that some of Hamilton’s assets were pledged in connection with a Revolving 

Credit and Security Agreement with PNC Bank. Global stated that this line of 

credit “was subsequently foreclosed upon [by PNC Bank] under UCC Article 9 

and [Hamilton’s] tangible and intangible assets . . . were made available to third 

parties for purchase via private sale and were subsequently sold.” Global asserted 

that at the time of the application, these assets were “not believed to be within the 

scope of this Application,” but Global stated that it reserved the right to ask the 

trial court for additional relief as to these assets. The record does not reflect that 

Global ever sought such relief. 
3

In its application, Global alleged that, upon information and belief, Hamilton 

continues to exist. Global claimed to have made a good faith effort to collect the 

Judgment but had been unsuccessful in doing so. Global asserted that Hamilton’s 

failure to make any attempt to resolve the matter made it necessary for Global to 

seek appointment of a receiver to facilitate the collection of the Judgment. Global 

alleged that it had reason to believe that Hamilton, either directly or indirectly 

through its Chief Executive Officer, owned property not exempt from attachment, 

execution, or seizure for the satisfaction of liabilities and asked the trial court to 

appoint a receiver under the Texas turnover statute. See Tex. Civ. Prac. & Rem. 

Code Ann. § 31.002 (West, Westlaw through 2017 1st C.S.).

The trial court signed an order appointing a receiver. In the order the trial 

court gave the receiver the power to take possession of “any non-exempt property . 

. . of [Hamilton] necessary to pay judgments outstanding against [Hamilton], 

including, but not limited to” the following:

(1) all documents or records, including financial records, related to 

such property that is in the actual or constructive possession or control 

of [Hamilton]; (2) all financial accounts (bank accounts), certificates 

of deposit, money market accounts, accounts held by any third-party; 

(3) all securities; (4) all real property, equipment, vehicles, boats and, 

planes; (5) all safety deposit boxes, private storage spaces and vaults; 

(6) all cash; (7) all negotiable instruments, including promissory 

notes, drafts and checks; (8) causes of action or choices [sic] of 

action; (9) contract rights whether present or future; and (10) accounts 

receivable. 

The trial court gave the receiver the discretion to liquidate any of Hamilton’s nonexempt property necessary to pay judgments outstanding against Hamilton. The 

trial court also ordered Hamilton to turn over to the receiver within five days of 

receiving a copy of the order “all checks, cash, securities (stocks and bonds), 
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interest in any business and/or partnerships, promissory notes, documents of title 

and contracts owned by or in the name of [Hamilton].” 

On appeal from the trial court’s order, Hamilton asserts various appellate 

arguments in an attempt to show that the trial court abused its discretion in issuing 

the receivership order. 

II. ISSUE AND ANALYSIS

A. Did the judgment creditor have to prove that the judgment debtor 

owned property that could not readily be attached or levied on by 

ordinary legal process?

Hamilton asserts that even if Global submitted evidence that Hamilton 

owned property, Global did not present evidence that Hamilton owned any 

property that could not readily be attached or levied on by ordinary legal process. 

Hamilton argues that Global had to make this showing to be entitled to 

appointment of a receiver under section 31.002(b).

 When Global filed its amended application on May 11, 2017, the turnover 

statute provided in pertinent part as follows: 

(a) A judgment creditor is entitled to aid from a court of appropriate 

jurisdiction through injunction or other means in order to reach 

property to obtain satisfaction on the judgment if the judgment debtor 

owns property, including present or future rights to property, that: 

(1) cannot readily be attached or levied on by ordinary legal 

process; and 

(2) is not exempt from attachment, execution, or seizure for the 

satisfaction of liabilities. 

(b) The court may: 

 (1) order the judgment debtor to turn over nonexempt property that 

is in the debtor’s possession or is subject to the debtor’s control, 

together with all documents or records related to the property, to a 

designated sheriff or constable for execution; 
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 (2) otherwise apply the property to the satisfaction of the judgment; 

or

 (3) appoint 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.

Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3242, 

3269 (amended 2017, 2019) (current version at Tex. Civ. Prac. & Rem. Code Ann. 

§ 31.002) (emphasis added). If this statute were to apply, Global would have the 

burden of proving that Hamilton owns property that cannot readily be attached or 

levied on by ordinary legal process. See Stephenson v. LeBoeuf, No. 14-02-00130-

CV, 2003 WL 22097781, at *2 (Tex. App.—Houston [14th Dist.] Sept. 11, 2003, 

no pet.) (mem. op.). Hamilton asserts that this version of the statute applies and 

that Global presented no evidence that any of Hamilton’s property could not 

readily be attached or levied on by ordinary legal process. 

 The trial court held a hearing on the amended application on June 5, 2017. 

The trial court gave Hamilton time to file a response and did not rule on the 

application at the hearing. Hamilton filed a response, and Global filed a reply. 

After these events and after Global had submitted all of its evidence but before the 

trial court ruled on the application, the Texas Legislature amended section 

31.002(a) effective June 15, 2017, by deleting the text emphasized in the statute 

quoted above. See Act of May 24, 2017, 85th Leg., R.S., ch. 996, § 1, 2017 Tex. 

Sess. Law Serv. 4026, 4026 (eff. June 15, 2017). The trial court signed the order 

on July 25, 2017. In the order, the trial court granted the application as of this date, 

and the trial court did not state that it considered or ruled on the application before 

June 15, 2017 — the statutory amendment’s effective date.

We review the trial court’s interpretation of applicable statutes de novo. See 

Johnson v. City of Fort Worth, 774 S.W.2d 653, 655–56 (Tex. 1989). In 
6

construing a statute, our objective is to determine and give effect to the 

Legislature’s intent. See Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 

(Tex. 2000). If possible, we must ascertain that intent from the language the 

Legislature used in the statute and not look to extraneous matters for an intent the 

statute does not state. Id. If the meaning of the statutory language is unambiguous, 

we adopt the interpretation supported by the plain meaning of the provision’s 

words. St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex. 1997). 

We must not engage in forced or strained construction; instead, we must yield to 

the plain sense of the words the Legislature chose. See id. 

Under the unambiguous language of the amended statute, a judgment 

creditor no longer has the burden of proving that a judgment debtor’s property 

cannot readily be attached or levied on by ordinary legal process. See Act of May 

24, 2017, 2017 Tex. Sess. Law Serv. at 4026. Though Global had this burden 

when it applied for the relief, before the trial court ruled on the application the 

Legislature amended the statute to remove this burden. See id. The Legislature 

stated that the amended statute “applies to the collection of any judgment, 

regardless of whether the judgment was entered before, on, or after the effective 

date of this Act.” Act of May 24, 2017, 85th Leg., R.S., ch. 996, § 2, 2017 Tex. 

Sess. Law Serv. 4026, 4026. The amendment took effect on June 15, 2017. See

Act of May 24, 2017, 85th Leg., R.S., ch. 996, § 3, 2017 Tex. Sess. Law Serv. 

4026, 4026. We conclude that the Legislature made this amendment applicable to 

judgments entered before the effective date of June 15, 2017, and that the amended 

statute applies to all applications considered after that date, even if the application 

was filed before the effective date of the statute. See id. Thus, under the amended 

statute, Global did not have the burden of proving that property owned by 

Hamilton could not readily be attached or levied on by ordinary legal process. 
7

Instead, Global had to prove only that Hamilton owned property not exempt from 

attachment, execution, or seizure for the satisfaction of liabilities. See id. 

Hamilton asserts that applying the amended version of section 31.002(a) to 

this case would constitute a retroactive application of the amended statute that 

would be improper because the Legislature did not clearly provide for a retroactive 

application. Hamilton concedes that the amended statute applies to the collection 

of the Judgment, but Hamilton asserts that the amended statute does not apply to 

applications for relief under section 31.002 that were pending on June 15, 2017. 

 Applying the amended version of section 31.002(a) to the trial court’s 

granting of the application on July 25, 2017, does not amount to a retroactive 

application of the amended statute because the trial court’s determination as to 

whether Global satisfied its burden of proof under section 31.002(a) occurred after 

the effective date of the statute. The Legislature did not provide that the prior 

version of the statute would continue in effect and apply to all applications pending 

on the statute’s effective date. In addition, it would not be reasonable to construe 

the 2017 statute as requiring all pending applicants to refile their applications and 

resubmit evidence to obtain the benefit of the lesser burden of proof the 2017 

statute provided. 

 Hamilton also cites various cases decided after the statute’s effective date, in 

which the courts of appeals have applied the pre-amendment version of section 

31.002(a). See, e.g., Tidwell v. Roberson, No. 14-16-00170-CV, 2017 WL 

3612043, at *6 (Tex. App.—Houston [14th Dist.] Aug. 22, 2017, pet. denied). 

But, none of the cases Hamilton cites are on point. In most of the cases, the trial 

court ruled on the application for relief under section 31.002(a) before the statute’s 

effective date. See, e.g., Tidwell, 2017 WL 3612043, at *1. In addition, in none of 

these cases did the court address the issue of whether the amended statute applied. 

See, e.g., id. at *6–7. Thus, none of these cases stand for the proposition that the 
8

pre-amendment version of the statute applies to rulings by the trial court issued 

after the statute’s effective date. See, e.g., id. at *1, 6–7.

 Hamilton asserts that Global waived the applicability of the amended 

version of section 31.002(a) by not raising this issue in the trial court. Hamilton 

cites a case holding that an appellant failed to preserve error in the trial court on a 

complaint the appellant raised on appeal. In this case Global is the appellee, and 

we must use the applicable version of section 31.002 in our analysis of Hamilton’s 

appellate complaints. When Global filed its amended application, the Legislature 

had not yet enacted the statute amending section 31.002(a). See Act of May 24, 

2017, 2017 Tex. Sess. Law Serv. at 4026. In any event, Global sought relief under

section 31.002, and the amended version of this statute applied when the trial court 

granted Global’s request for relief. In this context, the law did not require Global 

to make a specific request that the trial court apply the amended version of section 

31.002(a) to get the benefit of this statute in Global’s request for relief.

Hamilton asserts that Global waived the applicability of the amended 

version of section 31.002(a) by not raising this issue in its appellee’s brief on 

original submission.2

 In its appellant’s brief, Hamilton asserted that the trial court 

erred in granting relief under section 31.002 because Global did not submit any 

evidence to the trial court showing that Hamilton owned any property that could 

not readily be attached or levied on by ordinary legal process. Because Hamilton 

raised the issue of whether the statute required proof of this point, we cannot 

conclude that this issue was not raised on original submission. Though Hamilton, 

as appellant, has the burden to show that the trial court erred, Global, as appellee, 

need not raise any issue to have this court consider what took place in the trial 

court and determine whether Hamilton has shown that the trial court erred. See 

 

2 Global raised this issue in the motion for rehearing that this court granted.
9

Tijerina v. Wysong, No. 14-15-00188-CV, 2017 WL 506779, at *1–2 (Tex. App.—

Houston [14th Dist.] Feb. 7, 2017, no pet.) (mem. op.). If under the applicable law 

and the appellate record, an appellant has not shown that the trial court erred, we 

may not reverse the trial court’s ruling, even if the appellee filed no brief or filed a 

brief that does not present a proper basis for affirming the trial court’s ruling. See 

id. A trial court’s issuance of a turnover order will not be reversed for abuse of 

discretion if the order is sustainable for any reason, and that reason need not be 

contained in the appellee’s brief. Gillet v. ZUPT, LLC, 523 S.W.3d 749, 754 (Tex. 

App.—Houston [14th Dist.] 2017, no pet.); Tijerina, 2017 WL 506779, at *1–2.

Under the version of section 31.002(a) that applies to the trial court’s ruling, 

Global did not have the burden of proving that any property owned by Hamilton 

cannot readily be attached or levied on by ordinary legal process. See Act of May 

24, 2017, 2017 Tex. Sess. Law Serv. at 4026. Thus, presuming that Global 

presented no evidence to the trial court of any property owned by Hamilton that 

cannot readily be attached or levied on by ordinary legal process, this failure does

not show any trial-court error. See id.

B. Did the judgment creditor prove that the judgment debtor owned any 

property?

Hamilton also asserts that Global failed to prove that Hamilton owns any 

assets. We review a trial court’s order requiring turnover and appointing a receiver 

for an abuse of discretion. Gillet, 523 S.W.3d at 753. The trial court abuses its 

discretion if it acts in an unreasonable or arbitrary manner. Id. A trial court’s 

issuance of a turnover order, even if predicated on an erroneous conclusion of law, 

will not be reversed for abuse of discretion if the order can be sustained for any 

reason. Id. at 754. 

A judgment creditor may pursue turnover relief against a judgment debtor if 

the debtor owns property not exempt from attachment, execution, or seizure for the 
10

satisfaction of liabilities. See Act of May 24, 2017, 2017 Tex. Sess. Law Serv. at 

4026. To get turnover relief, the judgment creditor must carry the burden of 

proving that the judgment debtor owns property that is not exempt from 

attachment, execution, or seizure for the satisfaction of liabilities. See id.; Gillet, 

523 S.W.3d at 757. Simply filing an application or motion for turnover relief does 

not suffice; rather, the judgment creditor must submit evidence establishing these 

elements. See Shultz v. Fifth Judicial District Court of Appeals at Dallas, 810 

S.W.2d 738, 740 (Tex. 1991), abrogated on other grounds by, In re Sheshtawy, 

154 S.W.3d 114, 124–25 (Tex. 2004); Gillet, 523 S.W.3d at 757. 

Under section 31.002(b), the trial court may order the judgment debtor to 

turn over non-exempt property to a designated sheriff or constable for execution, 

may otherwise apply the property to satisfy the judgment, or may appoint a 

receiver with the authority to take possession of the non-exempt property, to sell it, 

and to pay the proceeds to the judgment creditor to satisfy the judgment. See Tex. 

Civ. Prac. & Rem. Code Ann. § 31.002(b) (West, Westlaw through 2017 1st C.S.). 

A court may enter or enforce an order under section 31.002 that requires the 

turnover of nonexempt property without identifying in the order the specific 

property subject to turnover. Tex. Civ. Prac. & Rem. Code Ann. § 31.002(h) 

(West, Westlaw through 2017 1st C.S.); Gillet, 523 S.W.3d at 754. Moreover, 

while there must be some evidence that the judgment debtor has non-exempt 

property, section 31.002 does not specify, or restrict, the manner in which evidence 

may be received for a trial court to determine whether the conditions of section 

31.002(a) exist, nor does the statute require that such evidence be in any particular 

form, that the evidence be at any particular level of specificity, or that the evidence

reach any particular quantum before the court may grant aid under section 31.002. 

Gillet, 523 S.W.3d at 754. The lack of evidence supporting a turnover order does 

not automatically invalidate the order, but is a relevant consideration in 
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determining if the trial court abused its discretionary authority in issuing the order. 

Id. Even so, under binding precedent from this court, a trial court abuses its 

discretion if the court grants turnover relief and appoints a receiver under section 

31.002(b) as to property without any evidence that the judgment debtor owns that 

property. See id. at 754–57. 

1. The Receivership Application 

In its receivership application, Global alleged that it in good faith had reason 

to believe that Hamilton, either directly or indirectly through its Chief Executive 

Officer, owned property that is not exempt from attachment, execution, or seizure 

for the satisfaction of liabilities. Global alleged that this property includes the 

following: 

funds at financial institutions, dividends, stocks, lines of credit, 

interest in subsidiaries and/or affiliates, real property, leases, licenses, 

permits, contract rights, royalties, patents, trademarks, instruments 

(including promissory notes), chattel paper (including electronic 

chattel paper), general intangibles relating to accounts, instruments, 

drafts and acceptances, credit card receivables arising out of or in 

connection with the sale or lease of inventory or the rendition of 

services, and all supporting obligations, guarantees and other security 

therefor, equipment and fixtures, payment intangibles and all 

software, inventory, capital stock, securities, membership interests, 

partnership interests, limited liability company interests or other 

equity interests of each direct or indirect subsidiary of [Hamilton], 

money, investment property, instruments and other property credited 

to any subsidiary and/or any subsidiary of such subsidiaries, cash and 

cash equivalents of [Hamilton] and any subsidiary, rights of payment 

which have been earned under contract rights, commercial tort claims 

(whether now existing or hereafter arising), warehouse receipts and 

bills of lading, deposit accounts, goods, letters of credit, cash, 

certificates of deposit, insurance proceeds (including hazard, flood 

and credit insurance), security agreements, eminent domain proceeds, 

condemnation proceeds, tort claim proceeds and all supporting 

obligations, computers, computer software, computer programs, 

proceeds and products of the property, receivables, leasehold interests; 
12

guarantor rights, title, and interest; merchandise returned or rejected 

relating to, or securing, any receivables; all proceeds and products in 

whatever form, and all other non-exempt assets (hereinafter “List of 

Property”). 

Global’s counsel verified the application, stating under oath that “every statement 

contained [in the application] is within her personal knowledge as counsel for 

[Global] and is true and correct to the best of her knowledge.” Hamilton failed to 

get a ruling from the trial court on its objection that Global’s counsel only stated 

that each statement is true and correct “to the best of her knowledge.” We presume 

that this failure allowed the trial court to consider the application as evidence. In 

this verified application, Global’s counsel stated that (1) Global in good faith had 

reason to believe that Hamilton owns property not exempt from attachment, 

execution, or seizure for the satisfaction of liabilities, including the general 

categories of property listed in the application, and (2) the foregoing statement was 

true and correct to the best of the knowledge of Global’s counsel.3 These tenuous 

statements that to the best of counsel’s knowledge Global had reason to believe 

that Hamilton owns property that falls within general categories is not legally 

sufficient to support a finding that Hamilton owns property in any of these 

categories. See Rohrmoos Venture v. UTSW DVA Healthcare, LLP, No. 16-0006, 

2019 WL 1873428, at *24–25 (Tex. Apr. 26, 2019).

2. The Exhibits to Global’s Reply 

 In its reply to Hamilton’s response in opposition to the application, Global 

submitted the following evidence: (1) a letter from an attorney for BioUrja 

 

3 Hamilton asserts that at a hearing on Global’s application, Global’s counsel made a judicial 

admission that directly contradicted the verified application. But none of counsel’s statements at 

the hearing rise to the level of a clear, deliberate, and unequivocal statement that directly 

contradicts the verified application. See Regency Advantage Ltd. P'ship v. Bingo Idea–Watauga, 

Inc., 936 S.W.2d 275, 278 (Tex. 1996); In re S.A.M., 321 S.W.3d 785, 790, n. 1 (Tex. App.—

Houston [14th Dist.] 2010, no pet.). 
13

Trading, LLC and Hamilton Metals, LLC, (2) an answer PNC Bank filed in a 

garnishment proceeding Global initiated, and (3) an affidavit of James Millman, 

Hamilton’s Chief Executive Officer. Global submitted this evidence more than a 

month before the trial court granted the application. On appeal, Hamilton asserts 

that the trial court should not have considered this evidence because Global did not 

present the evidence in a timely manner. Hamilton cites summary-judgment cases 

applying Texas Rule of Civil Procedure 166a for the timely filing of summaryjudgment evidence. Hamilton does not cite any cases holding that these summaryjudgment rules apply to an application under section 31.002 or addressing the 

deadline for filing evidence in a section 31.002 proceeding. We conclude that Rule 

166a’s deadlines for filing summary-judgment evidence do not apply to the filing 

of evidence in support of an application for relief under section 31.002 and that 

Global filed its evidence in a timely manner. See Gillet, 523 S.W.3d at 754. 

 Hamilton asserts that the letter from the attorney for BioUrja Trading, LLC 

and Hamilton Metals, LLC amounts to inadmissible hearsay. Hamilton waived the 

hearsay objection by failing to get a ruling from the trial court. See Mock v. Nat’l 

Collegiate Student Loan Trust 2007-4, No. 01-17-00216-CV, 2018 WL 3352913, 

at *3 (Tex. App.—Houston [1st Dist.] Jul. 10, 2018, no pet.) (mem. op.). 

Hamilton also asserts that the letter from the attorney for BioUrja Trading, 

LLC and Hamilton Metals, LLC is inadmissible because there was no 

authentication of this document. We presume for the sake of argument that the 

trial court properly could have considered this document despite the lack of 

authentication. In this letter, the attorney states that some, but not all of 

Hamilton’s assets were sold on October 6, 2016. The attorney also states that, as 

to the three accounts at PNC Bank in Hamilton’s name, Hamilton Metals, LLC has 

taken control of one account, and as to the other two, “it is our understanding that 
14

these accounts still belong to, and are controlled by, [Hamilton] and that there may 

only be a nominal, if any, amount of money in them, but this would need to be 

discussed with [PNC Bank].” The attorney did not state which assets of Hamilton 

were not sold on October 6, 2016. Though the attorney conveys his understanding 

that two bank accounts still belong to and are controlled by Hamilton, the attorney 

does not say that PNC Bank owes Hamilton any amount as to either of these two 

accounts. This letter is not legally sufficient to support a finding that Hamilton 

owns any property. See Rohrmoos Venture, 2019 WL 1873428, at *24–25; Gillet, 

523 S.W.3d at 757.

 Hamilton asserts that the answer PNC Bank filed in the garnishment 

proceeding constitutes inadmissible hearsay. Hamilton failed to get a ruling on this 

objection and thus waived it. See Mock, 2018 WL 3352913, at *3. The answer 

indicates that PNC Bank still holds three accounts in Hamilton’s name. After 

asserting various objections in its answer, PNC Bank stated that it was unable to 

definitively determine whether it was indebted to Hamilton at the time of the 

answer because PNC Bank was unable to definitively determine the ownership of 

monies held in three Hamilton accounts. On appeal, Global asserts that the two 

accounts at PNC Bank that counsel for BioUrja Trading, LLC and Hamilton 

Metals, LLC understood were still owned and controlled by Hamilton are 

“accounts subject to collections.” Yet, neither the garnishment answer nor any 

other evidence before the trial court showed that PNC Bank was indebted to 

Hamilton under any of the three accounts. See Gillet, 523 S.W.3d at 757. Thus, 

the answer does not stand as legally sufficient to support a finding that Hamilton 

owns any property. See id.

Hamilton asserts that the documents filed as part of Millman’s affidavit 

amount to inadmissible hearsay and that there was no authentication of these 
15

documents. Hamilton waived the hearsay objection by failing to secure a ruling on 

it from the trial court. See Mock, 2018 WL 3352913, at *3. The no-authentication 

argument lacks merit because Millman stated that the attached notice containing 

the documents was a true and correct copy of the original. See In re Estate of 

Guerrero, 465 S.W.3d 693, 704 (Tex. App.–Houston [14th Dist.] 2015, pet. 

denied) (en banc).

Millman testified by affidavit as follows: 

 Hamilton was a Houston-based wholesaler of non-corrosive steel pipe used 

in oil and gas exploration and production operations.

 Hamilton financed its operations in part by a revolving line of credit issued 

by PNC Bank, N.A. that was secured by a duly-perfected, first-priority lien 

on all of Hamilton’s assets. 

 After encountering financial difficulties, Hamilton defaulted under the terms 

of its credit agreement with PNC Bank. 

 As a result of the default, PNC Bank exercised its remedies under the credit 

agreement and disposed of its collateral at a private foreclosure sale 

conducted on October 6, 2016. 

 The buyer at the foreclosure sale was BioUrja Trading, LLC. Neither 

Hamilton, nor any of its current or former officers and directors, have any 

interest in BioUrja Trading, LLC or Hamilton Metals, LLC, the entity 

formed by BioUrja to take ownership of Hamilton’s former assets. 

 The sale price at the foreclosure sale did not satisfy the total amount of PNC 

Bank’s secured indebtedness, and PNC Bank currently holds a deficiency 

claim against Hamilton in excess of $6 million. PNC Bank’s deficiency 

claim remains secured by a first-priority lien on any remaining assets, 

although Millman is not aware of any such assets. 

 After foreclosure and liquidation of Hamilton’s assets, Hamilton ceased 

operations. 

 Hamilton “is a dormant legal entity with no valuable assets or equity.” 
16

 Global did not dispute that the private foreclosure sale of Hamilton’s assets 

had occurred on October 6, 2016 (before the trial court rendered the Judgment). In 

Global’s application for a receiver, Global stated that Hamilton’s line of credit 

“was subsequently foreclosed upon [by PNC Bank] under UCC Article 9 and 

[Hamilton’s] tangible and intangible assets . . . were made available to third parties 

for purchase via private sale and were subsequently sold.” Global asserted that at 

the time of the application, these assets were “not believed to be within the scope 

of this Application,” but Global stated that it reserved the right to ask the trial court 

for additional relief as to these assets. The record does not reflect that Global ever 

sought such relief. Consistent with this part of the application, in the trial court’s 

receivership order, the trial court excluded from the scope of the order the assets 

and property formerly owned by Hamilton that were acquired by BioUrja Trading, 

LLC and Hamilton Metals, LLC from PNC Bank through the foreclosure sale and 

related transactions. The trial court stated that this exclusion was without prejudice 

to Global’s or the receiver’s ability to petition the court for additional relief with 

respect to such assets and property. The record does not reflect that Global or the 

receiver petitioned for any such additional relief. 

 Global also cites “Schedule 5” to the notice attached to Millman’s affidavit. 

Schedule 5 lists assets not included in the private sale by PNC Bank. Global 

asserts that this schedule shows assets owned by Hamilton that were not sold on 

October 6, 2016. According to Schedule 5, the private sale was not to include the 

following items: 

(1) any lease, license, contract, or agreement to which Hamilton is a 

party to the extent that a security interest therein is prohibited by or in 

violation of any applicable law or a term or condition of any such 

lease, license, contract, or agreement; 

(2) any equipment owned by Hamilton that is subject to a purchasemoney lien or a capital-lease obligation if the grant of a security 
17

interest therein would constitute a violation of a valid and enforceable 

restriction in favor of a third party, unless any required consents have 

been obtained; 

(3) any monies, checks, securities or other items on deposit or 

otherwise held in deposit accounts or trust accounts specifically and 

exclusively used for payroll, payroll taxes, deferred compensation and 

other employee wage and benefit payments to or for the direct benefit 

of Hamilton’s employees. 

 Schedule 5 does not contain any statement that Hamilton owns or possesses 

any of the above-described assets; rather, Schedule 5 and the notice document of 

which it is a part provide that if Hamilton owns any such assets, the assets would

not be part of the private sale. No evidence before the trial court showed that 

Hamilton owned any such assets. 

 The list of excluded assets in Schedule 5 also includes certain tubular goods 

delivered to Hamilton as consignee and stored on Hamilton’s property, for which 

ownership of the goods had not been transferred to Hamilton or its customers 

under an agreement between Hamilton and another company. Hamilton would not 

own any of these consigned goods. 

 The list of excluded assets in Schedule 5 also includes the following assets: 

(1) six copiers, identified by serial number, securing Hamilton’s 

obligations to Konica Minolta Business Solutions USA, Inc.; 

(2) three Caterpillar assets, identified by serial number, securing 

Hamilton’s obligations to De Lage Landen Financial Services, Inc.; 

and 

(3) one Chevy Traverse SUV, identified by VIN number. 

(collectively the “Ten Assets”). The evidence before the trial court when it signed 

the receivership order was sufficient to show that Hamilton had an ownership 

interest in each of the Ten Assets. The trial court did not abuse its discretion by 

granting relief under section 31.002(b) as to Hamilton’s ownership interests in the 
18

Ten Assets. See Gillet, 523 S.W.3d at 756. To the extent that the trial court 

granted relief under section 31.002(b) as to any other property, the order lacks 

supporting evidence. See id. at 757; Great N. Energy, Inc. v. Circle Ridge Prod., 

Inc., No. 06-16-00029-CV, 2016 WL 7912458, at *11 n.16 (Tex. App.—

Texarkana Sept. 28, 2016, no pet.) (mem. op.); Stanley v. Reef Sec., Inc., 314 

S.W.3d 659, 666–67 (Tex. App.—Dallas 2010, no pet.). Under the applicable 

standard of review, we conclude that the trial court abused its discretion in signing 

the receivership order to the extent the order applies to property other than 

Hamilton’s ownership interests in the Ten Assets. See Gillet, 523 S.W.3d at 757; 

Great N. Energy, Inc., 2016 WL 7912458, at *11 n.16; Stanley, 314 S.W.3d at 

666–67. 

The receivership order is thirteen pages long and contains various detailed 

provisions, including one requiring Hamilton to turn over to the receiver 28 

categories of documents within five days of Hamilton’s receipt of a copy of the 

receivership order. The record does not reflect that Hamilton has superseded the 

receivership order, and neither the appellate briefing nor the appellate record 

reflect what actions have occurred vis-à-vis the receivership since the receiver filed 

his oath and cash deposit in lieu of receiver bond soon after the trial court signed 

the receivership order. Under these circumstances, we conclude that a remand is 

necessary for further proceedings, and so we do not render judgment. See Tex. R. 

App. P. 43.3. We reverse the receivership order and remand with instructions to 

the trial court to issue a new order that applies only to Hamilton’s ownership 

interests in the Ten Assets. See id.; Gillet, 523 S.W.3d at 757; Great N. Energy, 

Inc., 2016 WL 7912458, at *11 n.16; Stanley, 314 S.W.3d at 666–67. 
19

C. Do the judgment debtor’s challenges to two specific parts of the order 

have merit?

Hamilton also asserts that in the order the trial court impermissibly 

adjudicated the rights of third parties by giving the receiver the “exclusive right, 

power and authority to vote any shares of stock, partnership interest, or other 

business interests of [Hamilton]” and “the exclusive right, power, and authority to 

sign any orders, or minutes or resolutions of directors authorizing any action of 

[Hamilton] requiring such resolution or signed minutes by [Hamilton’s] operating 

agreement.” We need not address this complaint because, as explained above, we 

are reversing the trial court’s receivership order and remanding with instructions to 

the trial court to issue a new order that applies only to Hamilton’s ownership 

interests in the Ten Assets, and none of the Ten Assets are shares of stock or equity 

interests.

 Hamilton also complains that in the order the trial court provides that, “if it 

is discovered that Hamilton . . . or any of its owners and/or officers both former 

and present, held or hold an interest in the entities that purchased [Hamilton’s] 

assets and property,” Global and the receiver need not provide notice to BioUrja 

Trading, LLC, Hamilton Metals, LLC, and LogiBio Port Allen, LLC of any 

petition or request for additional relief with respect to the assets acquired from 

Hamilton by BioUrja Trading, LLC, Hamilton Metals, LLC, and LogiBio Port 

Allen, LLC. No evidence in the record shows that the condition stated in this part 

of the order has occurred, and we are reversing the trial court’s order. We 

conclude that this complaint is not ripe for adjudication, and we do not address it. 

See Patterson v. Planned Parenthood of Houston & Se. Tex., Inc., 971 S.W.2d 439, 

442 (Tex. 1998).
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III. CONCLUSION

The trial court abused its discretion in signing the receivership order to the 

extent the order applies to property other than Hamilton’s ownership interests in 

the Ten Assets. We reverse the receivership order and remand with instructions to 

the trial court to issue a new order that applies only to Hamilton’s ownership 

interests in the Ten Assets.

 /s/ Kem Thompson Frost

 Chief Justice

Panel consists of Chief Justice Frost and Justices Wise and Zimmerer.