## In the Court of Appeals Second Appellate Di strict of Texas at F ort Wort h

___________________________ No. 02

- 20

- 00107

- CV

___________________________

On Appeal from the 271st District Court Wise County, Texas Trial Court No. CV12

- 04

- 254
Before Birdwell, Womack, and Walker, JJ. Memorandum Opinion by Justice Birdwell 

### G ARY 

### B RUCE 

### P EEK 

### , Appellant

V



### . L INDA 

### M AYFIELD 

### , Appellee2 MEMORANDUM OPINION Appellant Gary Bruc e Peek (Bruc e ) appe a l s an interim judgment in this trust
dis pute
. Only one question is properly before us in this interlocutory appeal , and it

concerns compliance with a simpl e rule that requir es a pplicant s for receivership to post bond. The dis trict court did not require Appellee Lin da Mayfield to post bond ,

so the receivership must be disso lved. W e reverse and remand.
I. B ACKG ROU ND
A. Bac kground from the El P aso Court of A p peals
The factual se t ting for this case was well stated in an earlier opinion from the
El Paso Co urt of Appeal s : FACTUAL SUM MARY Rus sell and Dorothy Peek were the par ents of [L inda] and Bruce. During their lifet ime , Russell and Dorothy set up the Peek Family Revocable Trust ( 2000), a revocable trust that would benefit Bruce , [Linda] , and several othe r relatives. Several real properti es and other assets were placed i n the trust

. The trust was to become irrevocab le on the death of either Russell or Dorothy. Russell and Doroth y were trustees until January 2010 at which ti me [Linda] ’s daughter, [Lainie] Latshaw, and Bruce were app ointed as trustees. Latshaw was asked to
r esign as trustee in October 2012. By the time Do rothy and Russell were in their nineties, the record reflect s significant family discord. Bruce and [Linda] , t hough brother and sister, h ad not spoken to one anothe r in thirt y years. Several family members c laimed t hat Dorothy and Bruce had restricted ac cess to Russell, who at times was in an assisted living cent er , and at times lived in a house that Bruce had bu ilt right next to his own r esidence. Fo r the time Rus sell was in the assisted living center, the f acility excluded visits from most family me mbe rs, and disallowed Russell access to a phone. A locked gate r estricts access to Bruce ’ s property. Some family members3 called the police and adult pro tective servic es, questioni ng whether Russell was being held again st his will

. Conversely, Dorothy al leg ed that a disinherited relative had made death threats again st her, and others were taking advantage of Russell ’ s diminished mental capaci ty for financ ial gain. In 2 011, Dorothy w as appointed as guardian of Russe ll. After her death on November 20, 2012 , B ruce was appointed Russell ’ s guardian. Russell passed away on May 12, 2014. PROCEDURAL SUMMARY The suit before us was first filed [in the district court] on Apri l 20, 2012, b y Dorothy agai nst her niece, [ Belinda ] , and her granddaughter, [Ji ll]

. After Dorothy passed away, Bru ce was named independent executor to he r estate and continued the lawsuit in both his repr es entative and individual capacity. The last live petition, whi ch add ed [Lind a] as a defendant, asser ted claims of libel, slander , and intentional infliction of emot ion al distress. These claims largely a ro se out of the defendants ’ alleged calls to the au tho rities expressing concern for how Russell was be ing treated b y Doro thy, and later by Bruce

. [Linda] filed counterclaims against Bruce alleging three claims germane to this appeal, which we categorize as t he Trust Claim, the Guardianship Claim , and the W ill Claim:

• Bruce, as trustee of The Peek Family R evoca ble Livi ng Trust (2000 ), violated his fiduciary duties to the trust ’ s bene ficiaries by using undue influence o ver Russell and Dorothy to amend and ul ti mately terminate the trust, to re move all other b eneficiaries except for himself and to transfer all of the trust property to a nother trust. The suit alleges this as a violation of his duties as trustee (the ‘Trust Cl aim’).

• [Linda] asserts that Bruce an d a non

- party attorney applied to make Dorothy gu ardian of Russell knowing she was not qualified or capable, or a lternatively, they l earned that while she was guardian, and took a dvantage of the situation to take fo r t hemselves trust and estate assets. [L inda] also makes a similar claim against Bruce in his capacity as guardian of Russell ’ s person (the ‘Guardianshi p Claim’).4 • B ruce pa rticipated in a joint enterprise with a non

- p arty attorney to use undue influence ov er Dorothy to change her will to disi nh erit [Linda] (the ‘Will Claim’). [Linda] sought a n accounting from the original trust, and the lat e r trust that Bruce set up, alon g with restitution of financial gains to Bruce
a nd return of any property removed. The suit also sought removal of Bruce as t rustee, and appointment of a suc cessor trustee an d receiver to take possession of the trust assets. Mayfield v. Peek , 546 S. W. 3d 253, 25 6

– 5 7 (Tex. App.

— El Paso 2017, no pet.) (footnotes omitted)

. B
. The El Paso C o urt of Appeals’ D ispo sit ion
U ltimat ely , t he El Paso Court of Ap peals disposed of the W i ll Claim and t he
G uar dian ship Claim with instructions that they be dismisse d on remand ; it reversed

an d remanded t he T ru st Claim for further development of the recor d on the
domi nant jurisdic tion issue ; a nd it af firmed the unchallen ged portion of the final judgment disposi ng of Li nda ’ s , Beli nd a ’ s, and Bruce ’ s other claims

. I d. a t 267

– 68

. Af ter the El Paso court ’ s d isposition , the only surviving claim was the Trust Claim , which is Linda ’ s counter clai m f or breac h of fid uciary duty

. In it, Linda alleged that
Br uce “ violated his fid uciary duties to the trust ’ s beneficiaries by usin g undue
influ enc e over the trust set tlors an d beneficiaries ” in an eff ort “ to terminate the trust,
to remove all other benef ici aries ex ce pt for himse lf and t o transfer all of the trust
property ” to his own trust. According to the El P aso cou rt , the key i ssue as to the
Trust Cl aim was dominant jurisdiction, and the “ only questio n ” that had bearing o n5 whether anoth er court had dominant jur is dictio n was whether another proceeding had previ ously “ been filed in a county court at law that raised th e Tr ust Claim

. ” Id. at 266.
C. Afte r Remand
On rema nd, Bruce filed a m otion to dismiss on the basis of d ominant jurisdicti on in distric t court , and h e appe nded documents me ant to better d evelop the
issue

. The district court initial ly gran ted Bruc e ’s moti on and dismissed the ca se . Linda filed a motion for new trial. W ithin plenary power , the district co urt granted a

new tr ial

. See Tex. R. Civ. P. 32 9b

. The district court then hel d a bench trial

. On Marc h 1 7, 2 020, the di strict court rendered a n “ in terim judgment ” on the merits in which i t found :

• that Bruce had breache d his fiduc iary duties to the tr ust beneficiaries ;

• that he had exerted u ndue inf l u ence over Dorothy ;

• that var ious deed transfers should be voided ;

• that Bruce should a ccount for the trust p r oper ty ;

• that Linda was entitled to compensation for lost profits and an y depre ciation in
the value o f her share of the trust property;

• that Linda s h o uld be aw arded $1 ,000,00 0 in pu nitiv e damages;

• that Bruce should be r e moved as trus t ee and that a receiver should be appointed in his place;6 • that Bruce should be enjoined from taking a ny action in administ ering the trust

exc ept providing an accoun ting; a n d

• that a lien should be placed on all property transferr ed from the t rust to Bruce
or his own t rust
. The district court in dicated that it would sign a final judgment upon consideration of

a r eport p ro vided by the newly appointed rec eiver. B ruce filed th is interl ocutory
appea l

. II. J U RI SDIC T ION ON I NTERLOCUT O RY A PPEAL In their briefs, Bruce and Linda argue the gamut of issues in the case, which

ran ge from the question of dominant jurisdiction to the sufficiency of th e evidence to support the district cou rt ’s findings of und ue influ e nce and br each of fiduciary duty , and to the propriety of the receivership and punitive damages

. H owever , the district

court ’s order is not a final judgment, and many of these issues are b eyond the limited scope of this interl oc utory appeal.
A s to the finali ty of the judgment , “[a ] s a general rule, appeals may be taken only from final judgments. ” Sabre Travel Int ’ l, Ltd. v. Deutsche Lufthans a AG , 567 S.W.3d 725, 730 (Tex. 2019)

. This rule serv es the interests of c onsistency, fi nality, and judic ial economy , and it en sures that app ellate courts “ decide issues on a full record, do not unnecessarily delay the underlying tria l, avoid futility, an d consider all issues in a single round of review

. ” Id. “ [ A

] judgment is final eit her i f it actually7 d is poses of ever y pe nding claim and par ty or it clearly and unequivocally states that it finally disposes of all claims and all part ies. ” Bella Palma, L LC v. Young , 601 S.W.3d 799, 801 (Tex. 2020) (per curi am) (cleaned up). Neither of tho se conditions is

s atisfied here

. J ust the opposite, t he interim judgment unequi vocally states that the
district court was reserving final judgment in the case ; the inte rim judgment indicate s that the district court “ w ill sign a final judgment upon conside ra tion of a report
prov ided by the receiver

. ” Cf. In re S.L. , No. 05

- 11

- 00560

- CV, 2012 WL 5355708, at
*3

– 4 (Tex. App.

— Dallas Oct. 30, 201 2, no pet.) (mem. op. ) ; Able Cabling Serv s ., Inc. v.
Aaron

– Carter Ele c ., Inc. , 16 S.W.3d 98, 100

– 01 (Tex. App.

— Houston [ 1st Dist.] 2000, pet. denied)

. Tha t being the case, the i nterim judgment remai ns interlocut ory. T o the extent
that th e interloc utory o rder appoints a recei ver, it is appealable; “ [a] perso n may appeal fr o m an interlocutory order of a district co urt
. . . tha t
. . . appoint s a receiver

o r trus tee
. ” Tex. Civ. Pr ac. & Rem. Co de Ann. § 51.014 (a)(1).
But in handling interloc utor y appeals und er this provision , court s h ave generally refused to consid er any issues b e yond the pro p riety of the receivership it sel f

. See A

- Med. Advant age Healthca re Sys. v. Shwarts , No. 1 0

- 18

- 00050

- CV, 2019 WL 7374735, at *2

– 3 (Tex. App.

— Waco Dec. 31, 20 19, pet. deni ed) (mem. op .); Krumnow

v. Krumnow , 174 S.W.3d 820, 826 (T ex. App.

— Waco 2 0 05, pe t. denied) ; Alert Synteks,
Inc. v. Jer r y Spencer , L.P. , 151 S.W.3d 246, 249 (T ex. App.

— Tyler 2004, no pet.) ; In re Estate of Dillard , No. 07

- 00

- 0504

- CV, 2001 WL 13 9082, at * 2 ( Tex. App.

— Amarillo8 Feb. 5, 2001, no pet.) (not designated for publication )

. 1 These opinions have often

re lied on the in terpretive rule that court s shou ld “ stric tly apply s tatutes gran ting
in terlocutory appeals because they are a narrow except ion to the ge neral rule that
interlocuto ry orders are not immediate ly a ppealable. ” CM H Homes v. Perez , 340 S.W.3d 444, 447 (Tex. 2 01 1) ; accord Sabre Travel , 567 S.W .3d at 73 6

. Likewis e, c ourts de aling w it h interloc utory appeals under other parts of Secti on 51.01 4(a) have
declined to consider i ssues u nrelated to the top ic th at is expressly authorized for appeal

. See Dall

. Symphony A ss ’ n, Inc. v. Reyes , 571 S.W. 3 d 753, 761 & nn. 3 4 , 36 (Tex.
2 019) (c ollecting cases in wh ich courts refused to consider unrel ated issues u nder
various provisions of Section 51.014 (a) , though setti ng out an excep t ion for appeals
under Section 51.014(a) (6) ).
T rue to these holdings, we decline to consider the many iss ues briefed b y the parties that are not germa ne to the p ropriety of the rec ei vership

. 2 Those questions are beyond the limited scope of this appeal.

1 B ut see Kenworthy v. Kenworthy Corp

. , 149 S.W.3d 296, 297 n .1 (Te x. App.

— Eastland 2004, pet. denied) ( review ing issue s unrelated to the re ceivers hip but offering
n o citation s or re asoning to justify this a pproach )

.
2 Nor does the scope of this a ppeal properly include the issue of dominant ju r isdiction. Dom inant jurisdic tion has been d es cribed a s “ more of a venue issue than a true jurisdic tio nal one , ” 1 McDonald & Carls on Tex. Civ. P rac. § 3:13 (2d. ed.) ; se e Barcro ft v. Walton , No. 02

- 16

- 00110

- C V, 201 7 WL 3910911, at *2 n.5 (T ex. App.

— Fort W o rth Sept. 7 , 2017, no pet.) ( m em. op.) , and th e proper ve hicle to raise it is a plea in abatement r ather than a p l ea to the jurisd iction , In re Puig , 351 S. W.3d 301, 30 3 (Tex. 2 011) (orig. proceeding) (per cu riam)

.9 I I I
. R ECEIVERSHIP
Bruce ’s fourth issue is the o nl y o ne that falls within the limited scop e of this appeal. In it, he c onte nds that the d istrict court abused i ts discreti on by appoin ting a
receiver without firs t re quiring Linda to post a b on d, as re quired b y Rul e 695a of the
Texas Rules of Civil Proc ed ure . Linda does not dispute this arg ument
. W e review t he a ppointment of a receiver for an abuse of discretion. Templeton
v. RKR Inv s . Inc. , No. 02

- 18

- 00024

- CV, 2 018 WL 2344675, at *3 (Tex. App

. — Fort
Worth Ma y 24, 2018, no pet.) (mem. o p.) ; Dale v. Fin. A m. Corp. , 929 S.W.2d 495, 497 (Tex. A pp.

— F ort Worth 1996, w rit denied)

. “ A trial court ab uses its discretion if it
acts wi thout refere nce to guiding rules and pri nciples such that the ruling is arbitrary

or u n reasonable. ” Brewer v. Lennox Hearth Prod s . , LLC , 601 S.W.3d 704, 717 (Tex. 2020)

. A d ecis ion is arbitr ary when it i s made without fai r, solid , and substantial cause
Even if it were a tr ue jurisdictional i ssue, dominant jurisdiction wou ld not be before us . If dom in ant jurisdiction were truly jurisdicti onal , Bruce ’ s motion concerning dominant jurisdiction w ould qualify a s a plea to the jurisdiction for purposes of an interloc utory appea l , because whether a motion qualifies as a plea to t he jurisdiction i s determine d not by the mot ion ’s lab el but by “ the substance of the issue raised. ” Tex. Dep ’ t of Crimin al Justice v. Simons , 140 S.W.3d 338, 349 (Tex. 2004)

. But Section 51.014(a)(8 ) provides for interlocutory appeals only of the grant o r denial of “ a pl ea to the j ur isdiction by a governm en tal unit

. ” Tex. Civ. Prac. & Rem. Code A nn. § 51.014 (a)(8) (empha sis added ) . Thus, t h is court has consistently rejected appeals from den ial s of plea s to the jurisdiction when brought by private partie s rat her than gov ernmental u nits

. See , e.g . , In re C. V. , No. 0 2

- 20

- 00281

- CV , 2020 WL 7063680, at *1 (Tex. App.

— Fort Wor th Dec. 3, 2020, no p e t.) (p er curiam) (mem. op .) ; Liverman v. Denton C ty

. , No. 02

- 17

- 00240

- CV, 2017 WL 6377437, at *2 (Tex. App.

— Fort W orth Dec. 14, 201 7, no pet.) (mem . op.); Clifton v. Bu rroughs , N o. 2

- 08

- 404

- CV, 2008 WL 5401489 , at *1 (Tex. App.

— Fort W orth Dec. 23, 2008, n o pet.) (p er curiam) (mem. op.). Because Bruce is not a go vernmental unit , he could not bring an interloc utory app eal of a district court ’ s ru ling on its jurisdiction

.10 o r reason. B urlington N. & Santa Fe Ry. Co. v. S. Plains Switching, Ltd

. , 174 S.W. 3 d 348, 352 (Tex. App.

— Fort Worth 2005, no pet. ). “ Th e burden to show the existence of

c ircu mstances just ifying the ap pointment of a rec eiver rests on the party seeking the appointm ent. ” Estate of Hoskins , 50 1 S.W.3d 295, 306 (Tex. App.

— Co rpus Christi

– E d i nburg 2016, no pet.) ; Spiritas v. Davidoff , 45 9 S.W.3d 224, 232 (Tex. App.

— Dallas
2 015, no p et.) ; see Lan glois v. Mart in , 105 S.W.2d 440 , 442 (Tex. App.

— Fort Worth 1937, no writ)

. R

ule 695a provides that n o re ceiver shall be appointed with authority to ta k e charge of property until the party requestin g the appointment has f iled “ a goo d and
suf ficient bond

. . . payable to the defendant in the amount fixed by the court

. ” Tex.
R. Civ. P. 695a

. “ The purpose of t he bond is to ensure that the d efendant can be reimbursed for any damages caused by the appoi nt ment of the receiver in the even t tha t th e receiver was w rongfully app ointed. ” A hmad v. Ahmed , 199 S.W.3d 573, 575 (Tex. App.

— Housto n [1st Dist.] 2006, no pet.) (citing Tex. R. Civ. P. 695a , and Cont ’ l
Home s Co. v. Hilltown Prop. Owners Ass ’ n, Inc. , 529 S .W.2d 293, 295 (Tex. App.

— Fort
W orth 1975 , no writ) ). Th e applicant ’ s bond is a prerequ isite to the appointment of a

rec eiver, and t he trial court ’ s failure to require the bond necessitates r eversal

. Id. ; C

ont ’ l Homes , 529 S.W.2d at 295

. “ The filing o f a bond by the receiver pursuant to Te x as Civil Practice a nd Remedies C ode s ection 64.023 will not satisfy this requiremen t. ” A hma d , 199 S.W.3d at 575 ; Cont ’ l Ho mes , 529 S.W.2d at 295

.11 In this case, the dist r ict court ’ s order does not require Linda to fi le a bond payable to Bruce, nor does it in dica te an appropr iate amount f or such a bond. B ruce brought t his d eficiency to t he distri ct court ’s attention in his mot ion to vacate appointment of th e re ceiver , but the district court too k no ac tion to corr ect t he e rror, and the record does not sho w t hat Linda posted su c h a bond

. Therefo re, the requirements of Rule 695a have not been met, and the receivership must be dissolved.
We sustain Bruce ’s f ourth i ssu e . I V. C ONCLUSION
W e rev e rse the district court ’s inte ri m judgment to the e xtent tha t it appoint s a

r eceive r , and we rem and for furt her proceedings c onsistent with t his opini on. /s/ Wade Birdwell
W ade Birdwell J ustice
De livered: July 29, 2021