Opinion issued April 2, 2019

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-18-00217-CV

———————————

IN RE ESTATE OF GLORIA BANUELOS MARTINEZ

On Appeal from the County Court at Law No. 2

Fort Bend County, Texas

Trial Court Case No. 13-CPR 026038

MEMORANDUM OPINION

This interlocutory appeal arises from a probate dispute. See TEX. CIV. PRAC.

& REM. CODE § 51.014(a)(1). The sole issue in this appeal is whether the trial court 

properly appointed a receiver to sell real estate that was jointly owned by the estate 

and one of the heirs. Because there is insufficient evidence to satisfy the statutory 
2

requirements for appointment of a receiver, we reverse the trial court’s order, and 

we remand for further proceedings. 

Background

In March 2004, Gloria Banuelos Martinez bought a house in Fort Bend 

County with her daughter and son-in-law, Belinda and Thomas Kasmiersky. A

“Joint Ownership Agreement and Non-Testamentary Transfer Agreement” provided 

that the property would be owned 50% by Belinda and Thomas, and 50% by Gloria, 

who would be responsible for paying all ad valorem taxes and insurance. The 

agreement established that upon Gloria’s death one-third of her one-half interest 

would pass to Belinda in a non-testamentary transfer, and Belinda and Thomas 

would have the option to purchase the remaining interest in the property at thencurrent fair market value.

Gloria died intestate on August 4, 2013. She was survived by three children: 

Belinda Kasmiersky, Yolanda Sanders, and Paul Martinez. No will was admitted to 

probate, and the trial court appointed attorney Suzanne Kornblitt as dependent

administrator. Belinda sought reimbursement for ad valorem taxes paid during 

Gloria’s lifetime. Belinda and Thomas also sought to buy the remaining interest in 

the property.

For years, Gloria’s heirs have argued about the Fort Bend County property, 

the estate’s most valuable asset. They have also disputed the validity of the non-
3

testamentary transfer agreement, Belinda’s claims for reimbursement, and the costs 

of administration. Belinda and Yolanda have each filed declaratory judgment actions

seeking a determination of the validity and effect of the Joint Ownership Agreement 

and Non-Testamentary Transfer Agreement. Belinda has maintained that, as a result 

of the non-testamentary transfer, she owns a two-thirds interest in the property,1

whereas Yolanda has argued that the estate owns a one-half interest in the property 

because the Agreement was invalid.

The trial court authorized the administrator to sell the entire property, and the 

administrator and a third party entered into a sales contract, which required that the 

closing date of the sale be on or before February 7, 2018.

The trial court confirmed the sale on February 5, 2018. Ten days later, the 

administrator filed an amended application for sale of real property, which showed 

the acreage associated with the property to be 1.8065 acres rather than 1.502 acres, 

as indicated in the earnest money contract, the prior application for sale of real 

property, and the prior order confirming the sale. On March 8, 2018, the trial court 

vacated its February 5, 2018 decree confirming the sale of real property In its order, 

the trial court indicated that the contract for sale of the property “terminated on 

February 6, 2018 for many reasons, especially because albeit it has no effect on the 

 

1

(1⁄3 of Gloria’s 1⁄2 interest) = 1⁄3 × 1⁄2 = 1⁄6; and 1⁄6 + 1⁄2 (Belinda & Thomas’s 

interest) = 1⁄6 + 3/6 = 

4

/6 = 2⁄3.
4

appraised value, the acreage reflected in the Application and Order to Sell and the 

Report and Decree does not match the acreage shown on the deed records.” 

Referencing the heirs’ contentious relationship, the administrator sought

appointment of a receiver to sell the property. She asserted that the heirs had orally 

agreed to sell the house, but they disagreed about what amount of the sale proceeds 

would be placed in the court’s registry. She contended that this had created a problem 

for the title company and jeopardized the sale. In the application, the administrator 

stated that there was “a sale pending for $180,000,” and the property was “in danger 

of being lost, damaged, or materially injured” because there was a risk that “we may 

lose the buyer.” The administrator also stated that the estate lacked the funds to pay 

its debts, including insurance and property taxes. No evidence was attached to the 

application, and although no reporter’s record was made of the hearing on the 

application for appointment of a receiver, it is undisputed that no evidence was 

presented at the hearing.

The trial court appointed a receiver to sell the entire property, deduct costs, 

and disburse one-half of the proceeds to Belinda and one-half of the proceeds to the 

registry of the court. Belinda then filed this interlocutory appeal. 

Analysis

In her sole issue, Belinda argues that the trial court erred by granting the 

administrator’s application for appointment of a receiver to sell the property. Among 
5

other arguments, she contends that there was no evidence that the property was in 

danger of being lost, damaged, or materially injured.

I. Evidentiary sufficiency is considered in an abuse-of-discretion review.

A party may bring an interlocutory appeal from an order appointing a receiver. 

TEX. CIV. PRAC. & REM. CODE § 51.014(a)(1); see Estate of Hoskins, 501 S.W.3d 

295, 301 (Tex. App.—Corpus Christi 2016, no pet.). We review an order appointing 

a receiver for an abuse of discretion. Perry v. Perry, 512 S.W.3d 523, 526 (Tex. 

App.—Houston [1st Dist.] 2016, no pet.); Benefield v. State, 266 S.W.3d 25, 31 

(Tex. App.—Houston [1st Dist.] 2008, no pet.). “A trial court abuses its discretion 

when it rules arbitrarily, unreasonably, without regard to guiding legal principles, or 

without supporting evidence.” Bennett v. Baker Broocks & Lange, LLP, No. 01-13-

00674-CV, 2014 WL 3107661, at *1 (Tex. App.—Houston [1st Dist.] July 8, 2014, 

no pet.) (mem. op.) (citing Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998)). 

Under the abuse-of-discretion standard, legal and factual sufficiency of the evidence 

are not independent grounds of error: they are relevant factors in assessing whether 

the trial court abused its discretion. See Fannin v. Fereday, No. 01-13-00951-CV, 

2015 WL 4463694, at *3 (Tex. App.—Houston [1st Dist.] July 21, 2015, no pet.). 

II. Chapter 64 provides the legal standard for appointment of a receiver 

over jointly owned property. 

The party seeking the appointment of a receiver has the burden of proof to 

demonstrate that the circumstances justify the appointment of a receiver. Benefield, 
6

266 S.W.3d at 31. Texas Civil Practice and Remedies Code section 64.001 provides 

that a “court of competent jurisdiction” may appoint a receiver in six specific 

circumstances, including “(3) in an action between partners or others jointly owning 

or interested in any property or fund . . . or (6) in any other case in which a receiver 

may be appointed under the rules of equity.” TEX. CIV. PRAC. & REM. CODE

§ 64.001(a). When a movant seeks appointment of a receiver under subsection 

(a)(3), the movant “must have a probable interest in or right to the property or fund, 

and the property or fund must be in danger of being lost, removed, or materially 

injured.” Id. § 64.001(b) (emphasis supplied). Because the appointment of a receiver 

is “a harsh, drastic, and extraordinary remedy, to be used cautiously,” Benefield, 266 

S.W.3d at 31, “receivership is warranted only if the evidence shows a threat of 

serious injury to the applicant.” Perry, 512 S.W.3d at 527 (quoting Benefield, 266 

S.W.3d at 31).

III. The appointment of a receiver in this case cannot be justified “under the 

rules of equity” alone.

Throughout her brief, the administrator argues that the appointment of a 

receiver is justified on equitable grounds, suggesting that evidence of a danger of 

loss, removal, or material injury to property is not necessary. For example, she 

asserts that a court may appoint a receiver, on its own motion and in the absence of 

a party’s application, when such an appointment is justified or to preserve property 

that is the subject of litigation. She also argues that appointment of a receiver is 
7

appropriate in a probate case when the heirs cannot agree and years of litigation have 

ensued. She maintains that the trial court acted properly and “within its equitable 

jurisdiction” based on the judge’s memory of hearings that had been held over more 

than five years of litigation. 

The administrator relies on In re Estate of Trevino, 195 S.W.3d 223 (Tex. 

App.—San Antonio 2006, no pet.), and In re Estate of Herring, 983 S.W.2d 61 (Tex. 

App.—Corpus Christi 1998 no pet.), to support her argument that the appointment 

of a receiver in this case could be justified under either subsection (a)(3) or (a)(6) of 

section 64.001. 

In Trevino, the executrix of an estate was the sole beneficiary, and she 

inherited a bar. 195 S.W.3d at 226. The bar’s operator claimed an ownership interest 

under a handwritten bill of sale. Id. The executrix engaged an attorney to recover the 

property and resolve the operator’s ownership claims, and for that representation she 

agreed to 40% contingency fee. Id. When the attorney prevailed in favor of the 

executrix, he became a 40% owner of the bar, which he contended the executrix was 

mismanaging. Id. at 228. The attorney then petitioned the court for partition by sale 

and appointment of a receiver, which the court granted. Id. On appeal the executrix 

argued that, in an action between co-owners of property, a receiver may be appointed 

under section 64.001(a)(3) upon a showing that the property is “in danger of being 

lost, removed, or materially injured.” Id. at 231. 
8

The court of appeals also noted that, under what was then subsection (a)(5), a 

trial court could appoint a receiver based on the rules of equity. Id. Quoting Herring, 

the court of appeals observed that “the appointment of a receiver will solve most, if 

not all, of the vexations and problems confronting the parties on the issue of 

partition, as well as management of the properties.” Id. at 231 (quoting Herring, 983 

S.W.2d at 65). The court of appeals concluded that the court could have appointed a 

receiver on an equitable basis due to the years of disputes and ongoing litigation 

about the management of the bar. Id. Notably, the court also concluded that there 

was some evidence that the bar was in danger of being lost, removed, or materially 

injured because of decreasing revenues and the declining value of the business, as 

shown by appraisals and purchase offers. Id. at 232. 

The administrator’s reliance on Trevino and Herring is misplaced. This Court 

has previously construed section 64.001 and reached a conclusion different from 

Trevino and Herring, both of which found that the equitable basis for appointment 

of a receiver could apply even if another subsection of 64.001 was applicable. See 

id. at 231; Herring, 983 S.W.2d at 65.

In Mueller v. Beamalloy, Inc., 994 S.W.2d 855 (Tex. App.—Houston [1st 

Dist.] 1999, no pet.), this Court considered an interlocutory appeal from an order 

appointing a receiver to liquidate a corporation. 994 S.W.2d at 857. Mueller and 

Wilson jointly owned an electron-beam welding business. Id. After about 15 years, 
9

Mueller brought a shareholder’s derivative suit against Wilson. Id. On Wilson’s 

application, which was based on the Business Corporations Act and the “rules of 

equity” provision of section 64.001, the trial court appointed a receiver to liquidate 

Beamalloy. Id. at 857–58. Mueller appealed. Id. at 858.

On appeal, this Court noted that then section 64.001(a)(5) applied to 

corporations, but required a showing of insolvency, dissolution, or forfeiture of 

corporate rights to justify appointment of a receiver. Id. at 861. Beamalloy could not 

satisfy that requirement. Id. at 861 The Court also considered the language of the 

rules-of-equity provision, which was then section 64.001(a)(7) and is currently 

codified as section 64.001(a)(6). Id.; see TEX. CIV. PRAC. & REM. CODE 

§ 64.001(a)(6). That provision authorized the appointment of a receiver “in any other 

case in which a receiver may be appointed under the rules of equity.” See Mueller, 

994 S.W.2d at 861. The Court explained: “In authorizing a receiver in any other

case, subsection (a)(7) applies to instances beyond those listed” in the other 

subsections. Mueller, 994 S.W.2d at 861 (emphasis original). “Given the specific 

grant of authority to appoint a receiver for a corporation under the circumstances 

listed in section 64.001(a)(5), the trial court had no authority to appoint a receiver” 

for Beamalloy under the rules-of-equity provision. Id.

For the same reasons, section 64.001(a)(6) applies to instances beyond the 

specific circumstances in subsections (a)(1) through (a)(5). Thus, if subsection (a)(3) 
10

applies, then subsection (a)(6) does not. The administrator, as the representative of 

the estate, jointly owned the Fort Bend property with Belinda and Thomas. That 

made the underlying case “an action between . . . others jointly owning . . . property.” 

TEX. CIV. PRAC. & REM. CODE § 64.001(a)(3). Because subsection (a)(3) applies in 

this case, we reject the administrator’s arguments that the appointment of a receiver 

was justified “under the rules of equity,” and we focus our review on whether the 

administrator met her burden to show that the property was in danger of being lost, 

removed, or materially injured. See TEX. CIV. PRAC. & REM. CODE § 64.001(b).

IV. A conclusion that the property was in danger of loss, removal, or material 

injury must be supported by evidence. 

On appeal the administrator relies on three categories of support for the 

appointment of a receiver. First, she relies on arguments made in pleadings and 

hearings and factual assertions in pleadings and motions. Second, she presumes that 

the trial court took judicial notice of its own records. Third, she relies on the judge’s 

recollection of testimony adduced at a prior hearing in connection with another 

motion. None of this is legally competent evidence capable of supporting the 

appointment of a receiver. 

A. Factual assertions and arguments in pleadings and motions are not 

evidence.

Evidence may be in the form of testimony, documents, or tangible objects. 

See Black’s Law Dictionary (10th ed. 2014) (defining “evidence”). Neither
11

allegations in pleadings and assertions in motions nor arguments of counsel 

constitute evidence. See Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 

S.W.2d 656, 660 (Tex. 1995) (“Generally, pleadings are not competent evidence, 

even if sworn or verified.”); ODIN Demolition & Asset Recovery, LLC v. Marathon 

Petroleum Co., LP, No. 01-17-00438-CV, 2018 WL 4131038, at *5 (Tex. App.—

Houston [1st Dist.] Aug. 30, 2018, no pet.) (mem. op.) (“Unsupported arguments in 

briefs or motions are not evidence.”); Cleveland v. Taylor, 397 S.W.3d 683, 693 

(Tex. App.—Houston [1st Dist.] 2012, pet. denied) (“Neither an attorney’s argument 

nor the pleadings or motions of a party constitute evidence.”).

B. A trial court’s discretion to take judicial notice is not unlimited.

A trial court “may judicially notice a fact that is not subject to reasonable 

dispute because it: (1) is generally known within the trial court’s territorial 

jurisdiction; or (2) can be accurately and readily determined from sources whose 

accuracy cannot reasonably be questioned.” TEX. R. EVID. 201(b). A trial court may

take judicial notice of its own file, but such judicial notice is limited to 

acknowledgement of the existence of the documents in the court’s file. Perez v. 

Williams, 474 S.W.3d 408, 419 (Tex. App.—Houston [1st Dist.] 2015, no pet.). The 

“trial court may not take judicial notice of the truth of factual statements and 

allegations contained in the pleadings, affidavits, or other documents in the file.” 

Guyton v. Monteau, 332 S.W.3d 687, 693 (Tex. App.—Houston [14th Dist.] 2011,
12

no pet.). “When evidence is the subject of improper judicial notice, it amounts to no 

evidence.” Id. 

C. The trial court’s recollection of testimony from prior hearings is not 

evidence.

A judge may not take judicial notice of a fact learned over the course of 

litigation because “‘personal knowledge is not judicial knowledge.’” Id. at 692 

(quoting Wilson v. State, 677 S.W.2d 518, 524 (Tex. Crim. App. 1984)). Testimony 

from a prior hearing or trial may be considered in a subsequent proceeding when the 

transcript of that testimony is “properly authenticated and entered into evidence.” 

Id. at 693.

Based on these principles, we conclude that much of what the administrator 

relies on to support the appointment of a receiver is legally no evidence, including:

(1) unsupported arguments in pleadings and motions filed with the court, because 

the court may not take judicial notice of the truth of factual assertions in such 

documents; (2) testimony, argument, and documentary evidence from earlier 

hearings, transcripts of which do not appear in the record and were not admitted into 

evidence at the hearing on the application for receiver; and (3) any other personal 

knowledge that the trial court acquired about this case over the course of the

litigation. We now consider whether evidence that was properly before the court 

supports the appointment of a receiver. 
13

V. There is no evidence to support the appointment of a receiver under 

Section 64.001(a)(3). 

In the application, the administrator asserted that the Fort Bend property was 

in danger of being lost, damaged, or materially injured because (1) “there exists a 

contract for sale, for a very good price, and we may lose the buyer,” and (2) the 

estate had “insufficient funds” to pay its debts. 

A. There was no evidence of a pending contract for sale of the house or 

the likelihood of losing a buyer.

In the application, the administrator asserted, among othering things,2that a 

cash sale for $180,000 was pending. The day after the application was filed, the trial 

 

2

In the application for appointment of a receiver, the administrator asserted 

that at a hearing in January 2018, “all the Parties before the Court insisted” that she 

“place the property for sale and sell the property.” Neither a record from that hearing 

nor an affidavit from a participant was attached to the application, and no such 

evidence appears elsewhere in the appellate record.

The administrator recited facts about engaging a realtor, accepting an offer, 

and the ambiguity of a prior court order to sell the property. She also asserted that 

the title company “now refuses to commit to a title insurance policy” without

agreement of all parties about disbursement of sale proceeds. These factual 

assertions are not supported by the record. 

In her brief on appeal, the administrator argues that at a hearing on January 

11, 2018, attorney Cassandra McGarvey, who was hired to represent the 

administrator in the competing declaratory judgment actions, testified that the 

November 2017 order of sale could make it difficult for a realtor or title company 

to “open title” and that a receivership was likely to be a better way to satisfy a title 

company. No record from this January 2018 hearing is in the appellate record, but 

even if we accepted the administrator’s contention, we would nevertheless find that 

it does not support the factual assertions in the application because McGarvey’s 

testimony was opinion evidence offered by another attorney. It was not evidence 

that any specific title company had refused to commit to a title insurance policy, as 

represented in the application for appointment of a receiver. 
14

court determined that the contract for sale had terminated three weeks earlier. The 

trial court appointed a receiver on March 8, 2018, over a week after it entered the 

order to vacate, which recognized the earlier termination of the contract for sale. 

Only the original earnest money contract, which terminated in early February, 

appears in the appellate record. Thus, when the trial court appointed the receiver, 

there was no sale pending. The administrator presented no evidence that a sale would 

be lost or that the property could not be sold to another buyer if a sale was lost.

The administrator argues that testimony presented at the January 11, 2018 

hearing established that appointment of a receiver would satisfy the concerns of the 

title company. But she failed to present evidence that a specific title company refused 

to commit to a title insurance policy, and there is no record of the January 11, 2018 

hearing. The administrator referenced testimony from attorney Cassandra 

McGarvey, who recommended appointment of a receiver in light of the language of 

the court’s order of sale. Nothing in the record indicates that McGarvey’s testimony 

was admitted into evidence at the hearing on the application for a receiver. See 

Guyton, 332 S.W.3d at 693.

In addition, the administrator presented no evidence that the property itself 

was in danger of loss, removal, or material injury. She argues that the court could 

have relied on photographs she showed the judge at a hearing in November 2017, 

when the trial court signed its order of sale. But the photographs are not in the record 
15

and the hearing was non-evidentiary. At the hearing, the administrator described the 

property as “a lovely home” and “adorable.” The trial court judge could not have 

properly taken judicial notice of the photographs. See id. at 692–93.

B. Evidence of cash-flow insolvency does not demonstrate that the real 

property was in danger of loss, removal, or material injury.

Relying on her report and the vacated decree of sale, the administrator argues

that the estate was “insolvent” and that she has “never been paid or reimbursed for 

her own cash outlays and for time spent on the case and at hearings.” In the 

application for appointment of a receiver, she asserted that there were no estate funds 

available to pay for insurance or taxes.

Attached to the February 15, 2018 amended application for sale of real 

property was a verified exhibit showing the financial condition of the estate. It 

demonstrated that the estate had more assets than debts but lacked available cash to 

pay its debts. Evidence of this type of insolvency does not satisfy the statutory 

standard, however, because it does not show that the real property at issue is in 

danger of being lost, removed, or materially injured. See TEX. CIV. PRAC. & REM.

CODE § 64.001(b). There is no evidence that a tax foreclosure suit had been 

threatened or filed and no evidence that Belinda and Thomas would not pay the taxes 

on the property, subject to a claim for reimbursement. See Kneisley v. Intertex, Inc., 

797 S.W.2d 343, 346 (Tex. App.—Houston [14th Dist.] 1990, no writ) (holding 
16

evidence insufficient to support appointment of a receiver under Chapter 64 despite 

filing of tax foreclosure suit because danger of foreclosure was slight). 

Conclusion

We conclude that the administrator failed to carry her burden of proof on the 

danger of loss, removal, or material injury to the Fort Bend County real property 

over which the trial court appointed a receiver. See TEX. CIV. PRAC. & REM. CODE

§ 64.001(b). Accordingly, we hold that, based on this record, the trial court erred by 

appointing a receiver. We sustain Belinda’s sole issue. 

We vacate the order of the trial court appointing a receiver, and we remand 

for further proceedings.

Peter Kelly

Justice

Panel consists of Justices Lloyd, Kelly, and Hightower.