Opinion issued De cember 22, 2020

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 19
- 00622
- CV

——————————— SEAN ROBERTS , Appella nt

V. ABRAHAM , WAT K INS, NICHOLS, SORRELS, AGOSTO & FRIEND ,

AND SETH KRETZER , RECEIVER, Appell e e s

O n Appeal from the 215th District Court

Harris County, Texas Trial Court Ca se No. 2012
- 64419

MEMORANDUM OPINION Appellant Sean Roberts challeng es the trial cour t ’ s award of receivership fees
to appellees Abraha m, Watkins, Nichols, Sorrel s, Agosto & Fr iend (Abraham Watk ins) and Seth Krezter, Receiver. In his sole issue on appeal, Roberts argues that2

the trial court abused its discret ion in rendering an order requ i r ing him to pay $28,200 to Abraham Wa tkins and the r eceiver. We aff irm.
Back ground Roberts is a former partner of appellee Abraham Watkins

. A disp ute arose

a fter Roberts left the partnership and Abraham Watkins filed s uit against Roberts. That li tigatio n resulted in the trial court ’ s November 1, 2013 final judgment, requiring Robe rts to pay Abr aham Watkins $60,283.36 p l us $3,500 in att orney ’ s fe es , with 8% int erest until Roberts paid the judgment in full

. 1 Several years passed during which Roberts did not p a y the judgment despite having assets that would have sati sf ied the judgment de bt. Accordingly , in 2 019 , Abraham Watkins sought appointment of a receiver

. T he trial court appointed real party in interest Seth Kretzer as receiver on March 18, 2019. In the order ap p o inting
Kretzer as rece iver , the trial court also ordered Robe rts to turn over ce rtain finan cial
document s and records. Th e trial court ordere d Roberts to pay $800 in reasonable and necessary legal f

ees to Abraham Watkins for fees it incurred in pursuing the motion to appoint a rec eiv e r, $650 of which was to be paid to the receiver. The tri al

1 Roberts refers to thi s as a n “ agreed j u dgment , ” but the language in the judgment itself does not support his assertion. The final ju dgment, rendered November 1, 2013, s tates on its face that it was rendered in res ponse t o Ab raham Watkins ’ s
“ Motion to Vacate O r der Granting N e w T r ial and to Rein s tate Default Judgment. ” The trial court found that Rober t s “ has failed to fulfill the conditi ons set forth in the trial court ’ s Order of June 3, 2013 conditionally set t ing aside the Cour t ’ s M a rch 4, 2013 de fault judgment and granting a new trial. ” The tri a l court thus rendered judgment in favor of Abraham Watkins as set out above.3

court also stated in its order that the receiver’s fee was 25% “ of all gross proceeds that ca me into the receiver’s possession, not to exceed 25% of the balance due on

t he judgment, plus any ou t

- o f

- pocket expenses inc urred by the R eceiver in his scope

a s a recei ver in this case , ” and the trial court made an affirmative finding th at this

was “ a fair, reasonable and necessary fee for the Receiver. ” Finally, the trial court
found that “ [a]ll Receiv er ’ s fees will be taxed as costs against the Defendant [ Robe rts]. ”
On March 30, 2019, Kretzer sent a letter to various financial inst itutions stating that he had been appointed receiver and request ing the freezing of all
accounts an d other property held by th o se institutions up t o the amount of $100,000

. Kretzer al so advise d Roberts of the trial court ’ s order appointing him as rec eiver and of his intent to freeze Robert s’ s bank accounts

. K ret zer sent a letter to Roberts
inform ing him that the “ c urrent b alance o f the judgmen t, wit h all interest, receivership fees, an d expenses is $144,177. 97, ” and Kretzer identified va rious categories of financial information that Roberts was required to turn over to Krezter pursuant to the trial court ’ s March 18, 2019 order app o inting the receiver

. Roberts did not provide any informa tion to Kr e tzer. O n May 6, 2019, Kretzer moved to compel Roberts t o turn over the property and records identified in the trial
court ’ s March 18, 2019 order appointing him a s receiver

. Kretzer alleged in the motion to co mpel that , althou gh Roberts ’ s co unsel stated tha t Roberts “ desire[d] to4

resolve this matter as quickly as possible, ” Roberts had not made any payments or prod uced any documents. Kretze r thus requested that the trial court compel Robe rts
t o produce the finan c ial records and assets specifi ed in the recei v ership order. The trial court never ruled on Kretzer ’ s motion to compel because , on that same day, Roberts paid the judgment plus intere st . He pr ovided a c ashier ’ s check directly to Abraham W atkins for $107,47 3.48. 2 Roberts then filed a motion t o close the receivership on May 15, 2019. He asserted that he had paid the November 1, 2013 judgment in full directly to Abraham Wa tkins and requested that the trial court

c lose the receivership . H e th e n asked that the t rial court “ [to] reconsider the
Rece ivership costs a nd expenses in this matter, as the j udgment has been satisfied within the first 60 days of the receivership estate ’ s exi stence

. ” He also asked the t rial
court to issue an order awarding the re c e iver “ his reasonable hourly fees for the work he has complet ed toward collecting the judgme nt. ” Following a hearing 3 o n July 12, 2019, the trial court entered an order requiring Roberts to pay Kretzer $650 plus $26,7 50 for reasonable and necessary

2 It appears th at Abraham Wa tkins subsequently turned the money over to the r ec eiver.

3 T her e is no t ranscript of this hearing. In a later hearing held on December 5, 2019 , ad d ressing, in p art, Kre tzer ’ s motion to co mpel Roberts ’ s compliance with the order appointing the rec eiver , the partie s acknowledge d that a hearing on the issue of receive r ’ s fees was held in Ju ly 2019 and that Roberts ’ s attorney appeared at the hearing and argued that Ro berts should not have to pay the r eceiver ’ s fee

.5

recei v ershi p fees and expenses (the July 12 order)

. T he trial cour t also ordered Roberts to pay Abraham Watkins $800. Thus, the July 12 order requ ired Roberts to pay a total of $28,200. The July 12 order further ordered Kre tzer, “ withi n ten days of receipt of t he pay ments ordered herein and notice that the p a ym ents order ed herein
h ave been made to [Abraham Watkins ] , [to ] submit a final accounting with the Court along with his application to close the receivership and propose d order. ”
On August 1, 2019, Robert s m oved the trial court to reconsider the July 12 order , argui ng that , “ prior to a final accou nting and discharge of the receiver, only a partial advance tow ard a final fee may be made because the reasonabl eness of the
fee is measured in l ight of the value of the receiver ’ s work. ” Robert s further asserte d that “ [t]he re was no evidence presented of w hat would constitute a fair, reasonable, or necessary fee. ” It does not appear that the trial court ruled on this motion. O n August 10, 2019, Roberts filed a not i ce of appeal challe nging the July 12, 2019 order , resulting i n this appeal. 4

4 After the notice of appeal w as filed in this case, the parties con tinued to litigate in the trial cour t

. O n Octobe r 20, 2019, Kretzer filed an application for a charging order , seeking to sa tisfy the awa rd of his fees from Roberts ’ s membership interest i n his business partners hips. On December 6, 2019, the trial court declined to enter a charging order, but ordered Ro ber t s t o depos it $28,200

— the amount that Roberts was ordered to pay in th e July 12, 2019 order

— into the court ’ s registry

. This resulted i n a mandamus pr oceeding in this Court, i n which we determined that th e trial court was required to allow Roberts to sup ers ede t h e J uly 12, 2019 order

. See In re Roberts , No . 01

- 20

- 00370

- CV , 20 2 0 W L 5415242, at *2

– 3 (Tex. App.

— Houston [1st Dist.] Sept. 10, 2020, orig. procee ding).6 Juri sdiction As a preliminary matter, Kretzer argues in a motion to d ismiss and in his appellant ’ s brief that this appeal must be di smissed f or lack of jurisdiction. Kretzer argues that the J u ly 12 order is not a final appealab le order. 5
Ge nerally, appellate courts h ave jurisdiction only over appeals from “final judgments” and certain appealable interlocutory orders. Lehmann v. Har

– Con Corp. , 39 S.W.3d 191, 200 (Tex. 2001); see also, e.g

. , T E X
. C IV
. P RAC
. & R EM
. C ODE § 51.014 ( a) (1) ( au tho riz ing interlocutory app eal fr om order appointing receiver ).

“ We also have jurisdiction over a trial court order ‘ that resolves a discrete issue in connection with any receivership. ’ ” Bahar v. Lyon Fin. S ervs. , Inc. , 330 S.W.3d 379,
385 (Tex. App

. —

Austin 2 010 , pet. denied ) ( quoting Huston v. Federal Deposit Ins. Corp. , 800 S.W.2d 845, 847 (Tex. 1990) ) ; see also Hill v. Hill , 460 S.W.3d 751, 763 (Tex. App.

— Da llas 2015, pet. denied ) ( “[D]iscrete orders in re ceivership
p roceedings are an exception to the one

- fina l

- judgment rule

. ”)

.

5 Kret zer fu rther argue s that , because Roberts failed to appeal the 2013 final j udgme nt and the Mar c h 2019 order appointing Kretzer as receiver, Roberts cannot now c omplain about th ose o rders. Roberts , however, i s not asserting a challenge to eithe r the final judgment or the order appoint ing Kretzer as receiver. His notice of appeal li sted on ly the July 1 2 , 2019 order, and that is the only order he addresses in his b r iefing on app eal.7

In Huston , t he supreme court drew a parallel between determin ing the appealability of orders relating to receivership pro ceedings a nd orders in the probate
conte xt : A pro bate order or judgmen t is final if it con clusively d isposes of an d is decisive of the issue or con troverted question for which that particular part of the proceeding was brought, even if the decision does not fully an d finally dispose of the entire probate proceedin g. A probat e order is appealable if it fin ally adju dica tes a substantial right, whereas if it merely leads to further h earings on the issue, it is interl ocutory. The same standard s apply to orders ren dered d uring a receivership proceeding. 800 S.W.2d at 84 8 (internal citations omitted) . The court held that “ a trial court ’s order that resolves a discrete issue in connection with any receivership has the same force and effect as a ny other fina l adjudication of a court, and thus, is appealable ” and justified i ts departur e from the one - final

- judgment r

ule because “ [t]here must be some finality to orders which dispose of discrete issues or controverted questions by which the parties are going to be bound.” Id. at 847

– 48 ; see also Ber

geron v. Sessio n , 554 S.W. 2 d 7 71, 773 (T e x. App.

— Dallas 1977 ) (op. direc t i ng clerk to accept appeal) (holding that order allowing fees to rec eiver was “ fi nal and appealable with respect to the fees for services to the date of the or der, even though no order finally terminating the rece ivership a n d directing disposition of its ass ets had be en rendered ” ) , appeal decided by 561 S.W.2d 551 (Tex. App.

— Dallas 1977, writ ref ’ d n.r.e.)

.8

Roberts acknowledges that he did not file a timely no t ice of appeal to

c hallenge either the November 1, 201 3 final jud g ment or the March 18, 2019 orde r
app ointing Kretzer as the receiver. He argues , however, that this Court has jurisdiction to review the July 12, 2019 order requiring him to pay receiver ’ s fee s , and we agree. In its July 12 orde r, the trial cou rt resolved a discrete issue in connection w ith the recei vership, namely, the amount of re ceiver ’ s fees that Roberts owed as of that date

. See Huston , 800 S.W.2d at 847

– 48; Bergeron , 554 S.W.2d at 77 3. In arguing that this Court lack s jurisdiction over this appeal, K r etzer asserts that Roberts has “ crea ted a pa lpable contradiction: he keeps litigating the order in the trial court, ” noting that several motions remain pending in the trial court

. Re ceivers hip proceedings, however , ar e “ not like an ordinary laws uit in whi c h the
issues may be drawn by th e ple adings a s soon as discovery is complete, and then
pro mptly trie d to a final judgment, which may then be enforced by execution. ” Bergeron , 55 3 S.W. 2d at 774

– 75. [A receivership] is frequently an ongoing procee ding in wh i ch the rights of various partie s are determi ned by orders of the court from time to time, and it is not finally terminated until all of the assets in the hands of the receiver are applied to payment of claims or delivered to the parties determin ed by the c ourt to be entitled. It would b e int olerable fo r all payments and deliveries of property to the receiver and by the receiver, as ordered by the court from time to time, to remain tentative and subject to final adjudication on settling the receiv er ’ s final account. It would also be intol erabl e if suc h i ntermediate orders should be considered conclusive and not subject to review until termination of the9

receivership. In this kind of proceedi ng, the policy behind the “one final judgment” rule does n ot apply.
I d. at 775. Thus, the fact that the m atter re mains pending and that other motions have been filed in the trial court does not preclude this Court from exercising juri s diction
to review th e discrete issue resolved in the July 12 order. See Huston , 800 S.W.2 d at 847

– 48

. Krezter f urther arg ues that the July 12 order “ merel y reduced the amount ” of receiver ’ s fees to writing after the trial court ’ s March 1 8, 2019 ruling

. Roberts did not challe nge the March 18, 2019 order appointing Kretzer as receiver and provid i ng that the receiver ’ s fee was 25% “ of all g ross proceeds that ca me into the rece iver’s possession, not to exceed 25% of the balance due on the judgment, plus any out

- of

pocket expenses incurred by the R eceiver in his scope as a receiver in this case . ” Th e March 18, 201 9 order appointin g a receiver, thus , provided a calculation for determining the receiver ’ s fees but did not itself award actual compensation. The
amount o f receiver ’ s fees could not have been determined at the time of the March 18, 2019 orde r ; rather, the trial court could only determi ne what amount of fees were due a fter identifying the amount of “ all gross proceeds that came into the receiver ’ s possession ” in satisfaction of Abraham Watk ins ’ s fin al judgment . The July 12 order thus resolved t h e discrete issue of the amount of comp ensat ion due to the receiver after Roberts made a p ayment toward satisfaction of his judgment debt

.10

We conclude that we have jurisdiction to rev iew the trial court ’ s July 12 order. We overrule Kretze r ’ s arguments o n this ground and deny the pendi ng motion to
dismiss for want of jurisdiction. Awar d of Fees In his sole issue, Roberts argues that the trial court abused its discreti on in ordering him to pay the “ final ” receiver fees of 25 % of the receiver ship estate , or $28,200 , because it amounte d to “ t hou sands o f dollars per hour in receiver fees ” a nd was ordered “ without any evidence submitted by the receiver or any fact

- finding by the trial court t o determine reasonable ness or necessity of the v alue of the receiver ’ s services , even th ough it w as no t disputed th e receiver performed very little work. ” A receiver ’ s fees and expenses “are considered court costs and are governed by rules regarding the aw ard of costs.” Hill , 460 S.W.3d at 767 (rejecting argum ent that trial court had no legal basis to asse ss 1 00 % of re ceiver ’ s pos tjudgment fees against single party and that doing so amounted to impermissible sanction ); see T EX
. R. C IV
. P . 131, 141 . Those rules provide that the tr i al court is responsible for adj udicating which party or parties will pay costs

. Di ggs v. VS M Fin., L.L.C. , 482 S.W.3d 672, 674 (Tex. App.

— Houston [1st Dist.] 2015, no pet.) ; see als o T EX
. C IV
. P RAC
. & R EM
. C ODE § 64.00 4 ( “ Unless inconsistent with this cha p ter or other general law, the r ules of equity govern all matters relating to t he a ppointmen t, powers, duties, and liabilit ies of a receiver and to the powers of a court regarding a11

receiver. ” )

. “ [W]here a receiver is appointed, ta xation of costs of the re c eivership and the manner of the ir collection are matters entirely within the s ound discreti on of
the trial court. ” H i ll , 460 S.W.3d at 767 (quoting Theatres of Am., Inc. v. State , 5 77 S .W.2d 542, 547 (Tex. App.

— Tyler 1979, no writ)). Roberts argues t h at the trial court abused its discre tion by awarding Kretzer

“ final ” fees despite t he fact that K ret zer ha s not made a final accounting. Rob erts further argues that , despite his pay ment o f approxi mately $107,000 to A braham Watkins, Kretzer “ opposed the cl o sure of the receivership estate clai ming to be owed

an additional 25 per cent of the amount paid to the judgment debtor by Roberts as reasonable and necessary receiver fees. ” But Rob erts ’ s arguments that this was a

“ final ” award of fees and that he “ fully s a tisfied ” the November 1, 2013 judgm ent are not supported by the record. N othing in the trial cou rt ’ s July 12 order indicates
that it was making a final determination regarding the r eceivership, and, in fact, t he trial court expressly stated in its order t h at a final accounting was still req uired. Rather, the amount of receiver ’ s fees aw arded in the J uly 12 was calculated as
p rovided in the order appointing the receiver based on t he amount Roberts had paid as of July 12 , 2019 , t oward the satisfaction of his judgment debt. Roberts further asserts that his payment of approxim ately $107,000 fully
sat isfied his judgment d ebt, but he cites no ev idence o r other authority supporting this contention. The trial court has no t ruled that the judgment debt is fully satisfied,12

nor has it discharged th e rec eiver. T he letter Krezter as rec eiver sent to Roberts
in dicated that “ the current balance of the judgment [as of April 5, 2019] , with all
int erest, receivership fees, and expenses is $144,177.97 , ” and it does n ot ap p ear that Roberts has fully satisfie d this amount. Beca use the trial court awarded the rec eiver
f ees in accord ance with the terms set out in the unchallenged March 18, 2019 order
app ointing the receiver , we cannot conclude that the trial court abused i ts d i scretio n . See H i ll , 460 S.W.3d at 7 67 (holding that taxation of costs of receivership a nd

manner of their collection is matter entirely within trial court ’ s discretion). Roberts fur ther argues that Kr ezter failed to prove the reaso nableness o r necessity o f his services and that he failed to establish the value of hi s services, and, thus, th e trial co urt erred in den ying Roberts ’ s r e quest to close the receivership estate and in rejecting his motion for the trial court to re consider the amount of receiver ’ s fee s . We review a trial court ’ s awa rd of receiver ’ s fees for an abuse of discretion,

c onsidering al l the material facts and circumstances. Moyer v. Moyer , 183 S.W.3d 48, 51 (Tex. App.

—

Austin 2005, no pet.); U

.S. v. Admiral Refining Co. , 146 S.W.2d
8 3 0, 831 (Tex. App.

— Texarkana 1940, no wri t) ; see also Bergeron , 561 S.W.2d at 5 55 ( receiver ’ s fee s should be sufficient to induce competent persons to serve as receiver, attorney, or accountant , but they should also “ be moderate rather than
generous ” )

. A r e cei ver ’ s fee should be measu red by the value of the services13

rendered, and there must be evi denc e to establish the reason ableness of the fee. Moyer , 183 S.W.3d at 57

– 58. To determin e the value of a receiver ’ s services, courts
consider (1) the nature, ext e nt , and value of the adminis tered estate; (2) the complexity and difficulty of the work; (3) the time spent; (4) the knowl edge, experience, labor , and skill required of, or devoted by , the receiver; (5) the diligence and thoroughness displayed; and (6) the r e sul ts accomplished. Berge ron , 561 S.W.2d at 554

– 55. Roberts acknowledges on appeal that he is not challenging t he March 18, 2019 order appointing Kretzer as receiver and determi ning that a fee comprised of 2 5%

“ of all gross proceeds that ca me into the rec e ive r’s possession ” was “ a fair, reasonable and necessary fee for the Receiver. ” The partie s l ikewise acknowledged that the trial court held a hearing in July 2019 bef ore it rend ered its July 12 order , b ut Roberts has failed to bring forward a record of th a t h earing

. Without a reco rd demonstrating what evidence, if any, was presented to the tria l c ourt regarding the receiver ’ s services, it is impossible for us to review the entirety o f the evidence presented to the trial court or to apply the appropr iate su f fic iency standards. S ee S areen v. Sareen , 350 S.W.3d 314, 317 (Tex. App.

— San Antonio 2011, no pet.) (holding that court could not review sufficiency of evidence in absence of complete record or agreed statement of facts); s ee also, e.g. , Huston v. United Parcel Serv.,
Inc. , 434 S. W.3d 630, 636 (Tex. App.

— H ouston [1st Dist.] 2014, pet. denied)14

( app ellant bears burden to bring forward on appeal sufficie nt record to show error committed by trial court) ; Willms v. Am. Tire Co. , 190 S .W.3d 796, 803 (Tex. App.

— Dallas 2006, pet. denied) ( “[W]hen an appellant fails to bring a reporter ’ s record, an appel lat e court must presume the evidence presented was suffici ent to support the trial court ’ s order.”)

. The record as it s tands b efore thi s Court demon strates that A braham Watkins ob tained a judgment against Roberts on November 1, 2013 . Roberts f ailed to pay th is judgment despite having assets th at could satisfy hi s obligation. More than five
years after the final judgment was rendered , t he trial court appointed a receiver who sought financial informat ion ; who , among o ther actions, s eiz ed Robe rts ’ s accounts ;

an d who engaged with both the trial and appellate courts to fulfill the receiver ’ s obligation s in collecting payment of Abraham Wat ki n s ’ s final judgment

. A lthough
Roberts never comp lied with the tria l court ’ s March 1 8, 2019 order appointing the receiver an d req uiring him to turn over releva nt financial i nformation, he nevertheless paid approxi mately $107,000 to Abraham Watkins as a resul t of the

rec eivership proce ss . In light of thes e facts and Roberts ’ s failure to provide a full record of the proceedi ngs b efore the trial court , w e cannot say that Roberts has shown t h at the trial c ourt has abused i ts discretion in the amount of fees awarde d to Kretzer. See Moyer , 183 S.W.3d at 57

– 58 ; Bergeron , 561 S.W.2d at 554

– 55

.15

Finally, Roberts argue s that the trial cour t abus ed its discretion in finding in its March 18, 2019 ord e r appointing the receiver that “ [a]ll Receiver ’ s fees will be
taxed as cos t s a gainst the Defendant [ Robe rts] ” and by ord ering, in its July 1 2 order, that Roberts pay the entirety of the receiver ’ s fees that were then due and ow ing

. Under Rule of Civil Proc e dure 131, “ The successful party to a suit shall recover of his adversary a ll costs incurred therein, except where other wise provided. ” T EX
. R. C IV
. P. 131; see Hill , 460 S.W.3d at 767. Abraham W atkins, as the successful party to the litigation, was entitled t o recovery of all costs, inclu ding the costs of receivership. See T EX
. R. C IV
. P. 131; Hill , 460 S.W.3d at 767

. Alth ough the trial
court ha d the discretion to allocate these costs differently , see T EX
. R. C IV
. P . 141 (permitt ing court to adjudge costs “ oth erwise than as provided by law of these rules ”
for “ good cause, to be stat e d o n the record ” ) , it did not do so , and Roberts cannot show that this was an abuse of discretion , s ee H ill , 460 S.W .3d at 767

. We overrule Rober ts ’ s sole issue. Conclusion We affir m the July 12 , 2019 order of the trial court.

Richard Hightower Justice
Panel consists of Justices Keyes, Hightower, and Countiss.16