Conditionally GRANT; and Opinion Filed February 12, 2014.

S

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-14-00049-CV

IN RE CATHERINE KARLSENG, Relator

Original Proceeding from the 192nd Judicial District Court

Dallas County, Texas

Trial Court Cause No. DC-08-14206-K

MEMORANDUM OPINION

Before Justices Bridges, Lang-Miers, and Myers 

Opinion by Justice Lang-Miers

Relator, Catherine Karlseng, filed this mandamus proceeding after the trial court rendered 

a turnover order requiring her to turn over certain income that she receives from the law firm 

where her husband Robert Karlseng, the judgment debtor, works. We conditionally grant relief. 

BACKGROUND

This petition for writ of mandamus arises from a turnover proceeding following the trial 

court’s rendition of summary judgment against Robert Karlseng for the unpaid principal, interest, 

and charges on a promissory note. Catherine Karlseng was not a party in the case. After 

attempting a variety of means to identify executable property owned by Robert Karlseng, Wells

Fargo Bank, N.A.1

, the party seeking to enforce the judgment and real party in this proceeding, 

 1 Catherine Karlseng argues that Wells Fargo is not the proper party to enforce the judgment in this case because the judgment was in favor 

of Wachovia Bank, National Association. Because we conclude that the issuance of a turnover order against Catherine Karlseng was improper in 

a proceeding in which she was not joined as a party, we need not reach this issue.
–2–

filed an application for a turnover order, the appointment of a receiver, and a temporary 

restraining order pursuant to Section 31.002(b)(3) of the Texas Civil Practice and Remedies 

Code. During the course of the proceedings on the turnover order, Wells Fargo sought to 

establish that while Robert Karlseng is nominally an employee of the professional corporation 

where he is a named principal and works as a lawyer, he is actually an independent contractor. 

Wells Fargo further sought to establish that while Catherine Karlseng is also nominally 

employed by the same law firm, she does not do any work for the firm and receives wages only 

by virtue of Robert Karlseng’s work at the firm. Wells Fargo argued that the amounts Catherine 

Karlseng receives from the firm are actually Robert Karlseng’s income held on his behalf by 

Catherine Karlseng. Wells Fargo argued that all of the proceeds that the Karlsengs receive from 

the law firm, whether paid to Robert Karlseng or Catherine Karlseng, are not wages, which are 

exempt from execution under Texas law, but rather are subject to execution as the proceeds from 

Robert Karlseng’s work as an independent contractor.

After reviewing extensive briefing and argument and conducting several evidentiary 

hearings on the application for turnover, the trial court rendered an order requiring Catherine 

Karlseng to turn over “all income and other amounts derived by Catherine Karlseng, directly or 

indirectly, from Defendant's work as a lawyer and his law firm” and to further turn over a variety 

of assets related to that income. Catherine Karlseng then brought this mandamus proceeding. 

Robert Karlseng is not a party to the petition for writ of mandamus.

AVAILABILITY OF MANDAMUS REVIEW

Standard of Review

To obtain mandamus relief, a relator must show both that the trial court has clearly 

abused its discretion and that she has no adequate appellate remedy. In re Prudential Ins. Co., 

148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 
–3–

839-40 (Tex. 1992) (orig. proceeding). A trial court has “no ‘discretion’ in determining what the 

law is or applying the law to facts.” In re Prudential, 148 S.W.3d at 135 (quoting Walker, 827 

S.W.2d at 840). 

Adequacy of Appeal

Wells Fargo argues first that Catherine Karlseng is not entitled to relief because she has 

an adequate remedy by appeal. As between the judgment debtor and the judgment creditor, a

turnover order is a final, appealable judgment. See Davis v. West, 317 S.W.3d 301, 309 (Tex. 

App.—Houston [1st Dist.] 2009, no pet.); Burns v. Miller, Hiersche, Martens & Hayward, P.C., 

909 S.W.2d 505, 506 (Tex. 1995). 

Third parties also have a right to appeal turnover orders to “protect their affected property 

interests.” Schultz v. Fifth Judicial Dist. Court of Appeals, 810 S.W.2d 738, 739 n.3 (Tex. 1991)

(dictum), abrogated on other grounds, In re Sheshtawy, 154 S.W.3d 114 (Tex. 2004); see also 

Gerjets v. Davila, 116 S.W.3d 864, 869-70 (Tex. App.—Corpus Christi 2003, no pet.). Texas 

Courts of Appeals disagree, however, on whether appeal is the only appropriate remedy for 

attacking an improvidently granted turnover order rendered against a third party. Compare Plaza 

Court, Ltd. v. West, 879 S.W.2d 271, 276-77 (Tex. App.—Houston [14th Dist.] 1994, no writ)

(mandamus appropriate where turnover order authorized receiver to dispose of assets of third 

party); Republic Ins. Co. v. Millard, 825 S.W.2d 780, 783 (Tex. App.—Houston [14th Dist.] 

1992, no writ) (third party lacked adequate remedy by appeal) with Int'l Paper Co. v. Garza, 872 

S.W.2d 18 (Tex. App.—Corpus Christi 1994, no writ) (mandamus denied because third party 

had an adequate remedy by appeal). 

Whether an appellate remedy is adequate depends heavily on the circumstances 

presented. In re Prudential, 148 S.W.3d at 136–37; In re Estate of Hutchins, 391 S.W.3d 578, 

583 (Tex. App.—Dallas 2012, orig. proceeding). Mandamus review is not justified simply 
–4–

because an appeal would arguably involve more cost or delay than mandamus. Walker, 827 

S.W.2d at 842. But this case does not involve a complaint simply that appeal would involve a 

costly delay in the resolution of Catherine Karlseng’s complaints. Rather, in this case she asserts 

that the receiver has frozen her bank account and refuses to disclose whether her funds are still 

being held in her bank account or whether they have been disposed of in some other fashion. She 

contends that she has been unable to pay her living expenses and that checks she has written 

from her checking account have been returned for insufficient funds. A complaint that a 

turnover action will permanently impact the rights of a third party is not a complaint about the 

delay or expense associated with appeal. Plaza Court, 879 S.W.2d at 276-77. 

Here, Wells Fargo argues that Catherine Karlseng has an adequate remedy on appeal

because she can supersede execution of the judgment against her assets and obtain appellate 

review. We disagree. A judgment debtor can supersede a turnover order to suspend its 

enforcement of the judgment. Schultz, 810 S.W.2d at 739 n.3; Elaine A. Carlson, Reshuffling 

the Deck: Enforcing and Superseding Civil Judgments on Appeal After House Bill 4, 46 S. TEX.

L. REV. 1035, 1062 (2005). But that does not necessarily mean the same path provides an 

adequate remedy in all circumstances for a non-party to the underlying judgment who has been 

ordered to turn over property in which the non-party claims an ownership interest. The 

provisions of the Texas Rules of Appellate Procedure and the Texas Civil Practice & Remedies 

Code concerning supersedeas bonds apply expressly to judgment debtors. TEX. R. APP. P.

24.1(a); TEX. CIV. PRAC. & REM. CODE ANN. §52.006(b). A supersedeas bond is security for 

delay in enforcing the judgment against the judgment debtor. Universe Life Ins. Co. v. Giles, 982 

S.W.2d 488, 493 (Tex. App.—Texarkana 1998, pet. denied); Weber v. Walker, 591 S.W.2d 559, 

563 (Tex. Civ. App.—Dallas 1979, no writ); Mudd v. Mudd, 665 S.W.2d 128, 130 (Tex. App.—

San Antonio 1983, no writ); see generally Elaine A. Carlson, Mandatory Supersedeas Bond 
–5–

Requirements-A Denial of Due Process Rights?, 39 BAYLOR L. REV. 29, 61 (1987). Catherine 

Karlseng is not a judgment debtor in this case and cannot be required to supersede the judgment 

to prevent execution against her assets. Accordingly, mandamus lies for her to seek relief from 

the turnover order that purports to allow execution against assets she claims are hers. 

ENFORCEMENT OF TURNOVER ORDER AGAINST NON-PARTY

The legislature's purpose in enacting the turnover statute was to facilitate the collection of 

assets from judgment debtors. Republic Ins. Co. v. Millard, 825 S.W.2d 780, 783 (Tex. App.—

Houston [14th Dist.] 1992, no writ). But “Texas courts do not apply the turnover statute to nonjudgment debtors,” Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 227 (Tex. 1991) 

(representative of estate could not be ordered to turn over property she possessed in her 

individual capacity), and we have said that a trial court may not adjudicate third party ownership 

claims in a turnover proceeding. Turner Bros. Trucking, L.L.C. v. Baker, 396 S.W.3d 672, 675 

(Tex. App.—Dallas 2013, no pet.) (turnover statute was not available to obtain relief from nonparties in their individual capacities). The turnover statute is purely procedural and does not 

allow for the determination of the substantive rights of third parties. Cross, Kieschnick & Co. v. 

Johnston, 892 S.W.2d 435, 439 (Tex. App.—San Antonio 1994, no writ) (turnover order could 

not be rendered against partners when underlying judgment involved corporation); Republic Ins., 

825 S.W.2d at 783 ( judgment creditor could not use turnover proceeding to force a third party to 

litigate a bad faith claim in court issuing turnover order); Cravens, Dargan & Co. v. Peyton L. 

Travers Co., 770 S.W.2d 573, 576–77 (Tex. App.—Houston [1st Dist.] 1989, writ denied) 

(judgment creditor could not use turnover statute to reach funds held by State Board of 

Insurance); United Bank Metro v. Plains Overseas Group, Inc., 670 S.W.2d 281, 284 (Tex.

App.—Houston [1st Dist.] 1983, no writ) (judgment creditor who obtained judgment against 

individual was not entitled to turnover order against corporation). But see Dale v. Fin. Am. 
–6–

Corp., 929 S.W.2d 495, 498 (Tex. App.—Fort Worth 1996, writ denied) (adjudicating a claim 

that a trust was community property in a turnover proceeding); Norsul Oil & Mining Ltd. v. 

Commercial Equip. Leasing Co., 703 S.W.2d 345, 349 (Tex. App.—San Antonio 1985, no writ) 

(determining whether judgment debtor had actually assigned and conveyed shares of stock to 

third party).

It is undisputed that Catherine Karlseng was not a party before the court in the underlying 

litigation and was not a judgment debtor. A judgment may be enforced against a non-party to the 

judgment only by bringing a separate suit alleging a basis for enforcing the judgment against that 

party. In re Smith, 192 S.W.3d 564, 568 (Tex. 2006) (judgment may not be amended to include 

an alter ego or any other nonjudgment debtor that was not named in the suit); see also Custom 

Corporates, Inc. v. Sec. Storage, Inc., 207 S.W.3d 835, 840 (Tex. App.—Houston [14th Dist.] 

2006, no pet.) (neither a court's inherent authority to enforce a judgment nor the Texas Rules of 

Civil Procedure authorize joinder of parties post-judgment). As a result, the trial court could not

order her to turn over property in which she claims an ownership interest without conducting 

proceedings in which she was a party and afforded the opportunity to assert her claim to that 

property. Accordingly, we CONDITIONALLY GRANT the relator’s petition for writ of 

mandamus. A writ will issue only in the event the trial court fails to vacate its November 21, 

2013 Order Granting Plaintiff’s Designation of Assets (Related to Catherine Karlseng Received 

Income) for Turnover to Receiver and Granting Powers and Duties of Receiver.

140049F.P05

/Elizabeth Lang-Miers/

ELIZABETH LANG-MIERS

JUSTICE