*Pursuant to 5TH CIR. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 98-10155

Summary Calendar

_____________________

STONEHENGE/FASA-TEXAS JDC, Limited Partnership,

Plaintiff-Appellee,

versus

VANCE C. MILLER,

Defendant-Appellant.

_______________________________________________________

Appeal from the United States District Court for

the Northern District of Texas

(3:94-CV-912-G)

_______________________________________________________

September 24, 1998

Before REAVLEY, BENAVIDES and PARKER, Circuit Judges.

PER CURIAM:*

Vance C. Miller appeals an order of a magistrate judge

directing him to turn over stock in the Preston Trail Golf Club,

a country club, to appellee and judgment creditor

Stonehenge/FASA-Texas, JDC, L.P. (Stonehenge). Stonehenge sought
 

1 Tex. Civ. Prac. & Rem. Code § 31.002 (Vernon 1997). 

Under Fed. R. Civ. P. 64, state law remedies are available in

federal court to secure satisfaction of a judgment.

 

2 79 F.3d 1415, 1417-18 (5th Cir. 1996) (en banc). 

2

the stock pursuant to the Texas turnover statute.1 We reverse

and remand for further proceedings.

The district judge referred the application for turnover

relief to the magistrate judge “for a hearing, if necessary, and

for determination,” under 28 U.S.C. § 636(b). Stonehenge argues

that since Miller failed to file objections to the magistrate’s

order, review on appeal is limited to the plain error standard of

review. 

In Douglass v. United Services Automobile Association,

2 we

held that the plain error standard applies when the complaining

party fails to object to a report and recommendation of the

magistrate judge under 28 U.S.C. § 636(b)(1)(B). Section

636(b)(1) provides that a party may object to the proposed

findings of fact and recommendations of a magistrate judge under

§ 636(b)(1)(B), and the plain error standard adopted in Douglass

provides the consequence of failing to file objections as

contemplated by the statute. In the pending case, however, the

district court did not refer the application for turnover relief

to the magistrate judge for a report and recommendation under §

636(b)(1)(B), but referred the matter to the magistrate “for

determination.” The statutory basis for this referral is less
 

3 Miller does not argue on appeal that the magistrate

lacked the statutory authority to rule on the application for

turnover. Accordingly this issue is waived. Webb v.

Investacorp, Inc., 89 F.3d 252, 257 n.2 (5th Cir. 1996). An

exception to this rule is that the court of appeals has a duty to

consider, sua sponte if necessary, the basis of the district

court’s jurisdiction. Solsona v. Warden, F.C.I., 821 F.2d 1129,

1132 n.2 (5th Cir. 1987). However, we have held that proceeding

before a magistrate judge without consent is only a procedural

error, rather than a jurisdictional error, so long as the

judgment in the case was entered by the district judge. EEOC v.

West La. Health Servs., Inc., 959 F.2d 1277, 1282 (5th Cir.

1992). Here the judgment in the case was entered by the district

judge; the application for a turnover order was merely an

ancillary proceeding in aid of collecting the judgment. The

parties could have proceeded before the magistrate judge by

consent under 28 U.S.C. § 636(c), regardless of any other basis

for referring the turnover application to the magistrate judge,

and therefore a failure to obtain such consent was at most a

procedural error, rather than a jurisdictional defect that we are

oblige to notice sua sponte. 

 

4 Under Rule 72(a), if a magistrate judge hears and

determines a “pretrial matter not dispositive of a claim or

defense,” a party objecting to the order may file objections to

the order within ten days, thus tracking the language of §

636(b)(1) with respect to proposed findings of fact and

recommendations made pursuant to § 636(b)(1)(B). The Rule

further provides that “a party may not thereafter assign as error

a defect in the magistrate judge’s order to which objection was

not timely made.” The Advisory Committee Notes indicates that

the purpose of this language is to provide a uniform 10-day rule

for nondispositive motions decided by the magistrate judge and

3

than clear.3 Section 636(b)(1)(A) authorizes a district court to

designate a magistrate judge to “hear and determine any pretrial

matter,” excepting certain dispositive motions, but here the

motion concerned a post-trial matter. Arguably the referral was

made under § 636(b)(3), providing that “[a] magistrate may be

assigned such additional duties as are not inconsistent with the

Constitution and laws of the United States.” Neither the statute

nor Fed. R. Civ. P. 72 set out a procedure for making an

objection to a § 636(b)(3) ruling.4 We further note that the
dispositive motions on which the magistrate makes proposed

findings of fact and recommendations. However, the wording of

Rule 72(a), with its reference pretrial matters, only applies to

pretrial nondispositive motions under § 636(b)(1)(A). 

 

5 Douglass, 79 F.3d at 1429.

 

6 Applying the same standard of review we would apply if

the ruling had been made by the district judge is consistent with

our practice of applying the same standards when the magistrate’s

ruling is directly appealable to the court of appeals, without

intermediate review by the district judge, as when the magistrate

tries a case and enters judgment by consent of the parties

pursuant to 28 U.S.C. § 636(c). See Matter of Toyota of

Jefferson, Inc., 14 F.3d 1088, 1090 (5th Cir. 1994) (“We review a

judgment rendered by a magistrate pursuant to 28 U.S.C. § 636(c)

as we would a judgment rendered by a district judge.”).

 

7 Santibanez v. Wier McMahon & Co., 105 F.3d 234, 239 (5th

Cir. 1997).

 

8 Esmark Apparel, Inc. v. James, 10 F.3d 1156, 1163 (5th

Cir. 1994).

4

plain error standard adopted in Douglass only applies if “the

party has been served with notice that such consequences will

result from a failure to object.”5 We are unable to locate any

such notice in the record. We therefore apply the same standard

of review we would apply if the turnover order had been made by

the district judge.6

Treating the magistrate’s order as we would an order of the

district judge, a turnover order “is reviewed under an abuse of

discretion standard and may be reversed only if the court has

acted in an unreasonable or arbitrary manner.”7 “A district

court abuses its discretion if it bases its decision on an

erroneous view of the law or on a clearly erroneous assessment of

the evidence.”8 
 

9 53 F.3d 72 (5th Cir. 1995).

5

Miller argued below that he transferred the stock in issue

to a partnership of his then minor children on May 1, 1980. 

There was conflicting evidence on this issue. Miller’s son, an

attorney, could not confirm the existence of the children’s

partnership to which the stock was allegedly transferred, nor did

the country club learn of the alleged transfer until a few days

before the hearing on the turnover application. Miller did not

follow club procedures for the transfer of the stock. He

continued to use the club facilities and pay club dues after the

alleged transfer. He testified that his children had “no

membership rights or membership privileges whatsoever, except to

receive the proceeds if and when they choose to sell it.” 

However, Miller testified that he had transferred the stock by a

written assignment, which was produced at the hearing. He

further testified, and produced documentation, that payment for

the stock was made from the savings accounts of the children, in

the cumulative amount of $11,000. He had originally paid $4,000

for the stock. 

Miller argues that in these circumstances, as a legal

matter, the Texas turnover statute is not the appropriate vehicle

for determining the substantive issue of ownership of the stock. 

We agree, as we find indistinguishable our decision in RTC v.

Smith.

9

In Smith, the RTC obtained a judgment against the Smiths. 

The Smiths then pledged stock they owned to their attorney,
 

10 Smith, 53 F.3d at 77 (quoting Cross, Kieschnick & Co. v.

Johnston, 892 S.W.2d 435, 439 (Tex. App.--San Antonio 1994, no

writ) and Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 227

(Tex. 1991)).

 

11 Smith, 53 F.3d at 78.

6

Fuqua, to secure legal services. The RTC asked the district

court to use the Texas turnover statute to void the transfer of

the stock to Fuqua as a fraudulent transfer and command the

turnover of the stock. After a number of hearings and motions,

the district court declared the Smiths’ pledge of the stock to

Fuqua void, and ordered the United States Marshal to execute on

the stock and sell it. 

We reversed in part. We noted that the Texas turnover

statute “is purely procedural in nature; the statute does not

provide for the determination of the substantive rights of the

parties,” and that “Texas courts do not apply the turnover

statute to non-judgment debtors.”10 Applying our understanding

of Texas law, we held that the district court could use the Texas

turnover statute to compel the Smiths to turn over whatever

interest they had in the stock.11 However, we further held that

the statute could not be used to void the pledge of the stock to

Fuqua. Noting that the statute “cannot be used to litigate the

property rights of third parties,” we held that “the district

court erred in using the turnover proceeding to determine that

the stock pledge was a fraudulent transfer and was therefore
 

12 Id. at 79-80.

 

13 Id. at 78.

 

14 Id. at 80.

 

15 Miller separately argues that the turnover statute cannot

be used to seize stock because it can only be used to reach

property which “cannot readily be attached or levied on by

ordinary legal process,” Tex. Civ. Prac. & Rem. Code §

31.002(a)(1), and Texas law provides an alternative legal process

for the seizure of stock in execution of a judgment. We rejected

a similar argument in Smith, noting that “[n]either the statute

7

void. The validity of the pledge agreement must be challenged in

a further proceeding.”12

As Smith upheld the turnover order insofar as it ordered the

Smiths “to turn over whatever interest they had in the Park Club

stock to the district court,”13 the magistrate in the pending

case was authorized to direct Miller to turn over whatever

interest he has in the country club stock. In Smith, we held

that the stock should remain in the registry of the district

court until such time as Fuqua’s interest in the stock was

determined in another proceeding.14 In the pending case,

however, the court ordered the stock turned over to Stonehenge,

without any restrictions on Stonehenge’s ability to sell the

stock to satisfy its judgment (other than a stay pending appeal). 

In effect, therefore, the court declared the transfer of the

stock to the children and their alleged interest in the stock

void, thus deciding the substantive property rights of third

parties, in contravention of our holding in Smith. We therefore

reverse the turnover order, and remand the case for further

proceedings consistent with this opinion.15 
nor the case law provides a corresponding requirement that the

judgment creditor demonstrate that other methods of collecting

the judgment have failed.” Smith, 53 F.3d at 78. See also

Norsul Oil & Mining Ltd. v. Commercial Equip. Leasing Co., 703

S.W.2d 345 (Tex. App.--San Antonio 1985, no writ) (affirming

order under turnover statute that stock be turned over to

judgment creditor). Stonehenge made a sufficient showing that

the stock could not readily be attached or levied on by ordinary

legal process. On the day Stonehenge attempted to execute on the

judgment at Miller’s home, the stock certificate was removed from

his home and given to his children, by Miller’s own admission. 

The magistrate judge properly noted “concern that this stock

certificate was removed from the property after the execution was

attempted; and that gets very close to an obstruction of

justice.”

8

REVERSED and REMANDED.