## In the Court of Appeals Second Appellate District of Te xas

at For t Worth

___________________________ No. 02

- 22

- 00261

- CV

___________________________

On Appeal from the 352nd District Court Tarrant County, Texas Trial Court No. 352

- 291883

- 17

Before Birdwell, Bassel, and Wal ker, JJ. Memorandum Opinion by Justi ce Walker 

### A LLSTATE 

### C OUNTY 

### M UTUAL 

### I NSURANCE 

### C OMPANY 

### , Appellant

V



### . C HRISTINE 

### H ILL 

### , Appellee2 MEMORANDUM OPI NION
After Appellee Christine H i ll obtained a judgment against Appel lant Allstate County Mutual Insurance Comp any (Allstate) , she applied for and ob tained a turnover order and the appointment of a receiver to satisfy that judgment. On appeal, Allstate

ass erts that the trial court abused its discretion by appointing the r eceiver ex parte
pursuant to the turnover order and by awarding a receivership fe e of $15,000. We will affirm, b ecause Allstate ’ s appeal of the turnover order and the a ppointment of the

rec ei ver were untimely , and because the tri a l court did not abuse its discretion in
award ing the rec eiver ’ s fees

.

I. FACTUAL AND PROCEDURAL BACKGROUND Following a motor vehicle accident, Hill sued Allstate to rec over under her

u ninsured/ u nderinsu r ed m otorist (UIM) po licy. After a jury trial, the tr ial cour t signed its f

inal j udgment on March 24, 2020

. The judgment award ed Hill $30,000 in
UIM bene fits; court costs; $42,668.75 in attorney’s fees ; a nd p ost

- judgment intere st
. Allstate appeale d the award of attorney’s fees. We affirmed the judgment , see Allstate Cnty. Mut. Ins. Co. v. Hill

, No. 02

- 20

- 00174

- CV, 2021 WL 2978746, at *3 (Tex. App.

— Fort Worth July 15, 2021, no pet.) (me m. op.) ( Allstate I ), and mandate i ssued on October 8, 2021. 1

1 Allstate ’ s counsel allege d that s he was not notified of th e Alls tate I m and a te until the r eceiver emailed her on December 17 ; h owever, the clerk of this court delivered it v

i a email to e a ch partie s ’ counsel on O ctober 8, 2021. Further, Allstate ’ s3

On November 19, 2021 , H ill filed her Application for Ex Parte Turnover Relief and Appointment of Receiver , alleging that she had yet to re ceive payment from All state to satisfy the j udgment

. In s upport of her a pplication, Hill offered the
affidavit of Caleb Moore , the proposed receiver, in which he attested that he had performed a post

- judgment asset investigation and described Allstate’s nonexempt
property
. On D ecember 16, 2021, the tri al court s igned its Ord e r Requiring Turnover and Appointing R eceiver 2 , wh ich appointed Moore as the re c eiver

. That same day, Moore emailed Allstate ’s counsel informing her o f his appointment and his intenti o n to collect the judgment. In respon se to this email , Allstate alleg e d that it h ad sent Hill ’ s counsel a $30,000 check on March 27, 2020,
which it claimed was an attempt to pay the policy

- benefits portion of the final judgment

. A ccordin g t o Allstate , this check expired with out being cashed, so it sent a replacement check o n April 16, 2021. 3 Ultimately , on January 4, 2022

— less than a

counsel conceded that she was aware of our July 15 , 2021 opinion in All s tate I befor e mandate iss ued.

2 Specifically, t he trial court ordered Allstate and third

- parties in possession of Allstate property “ to immediately turnover ” all relevant documents and property to Moore and enjoined Allstate from transferring , en c umbering, or conceal i ng i ts non

ex empt property
.

3 Thoug h there is some indication in the record that these checks were written
o r printed by Allstate, it is unclear if either check was actually sent to Hill or her counsel. Hill and her counse l denied ever receiving th ese c h eck s or being notified that the y had been sent.4

month after the trial co urt ’ s order for tu rnover and appointment of re ceiver

— Allstate paid Hi ll the full amount of the judgment, $ 109,382.0 2

. On April 13, 2022, Moore filed his receiver’s re p ort and fee application stating that the full judgment amount had been collected from A llstate, and he requested a
receiver’ s fee of $2 7,3 45

— 25% of th e collected amount.
On A pril 14, 2022, the trial cou rt approved Moore ’ s report and awarded him

t he r equ e sted 25% fee

. That same day, Al lstate sent a letter to the trial court stating that it would be filing an objection to Moore ’ s appo intment and the fee award

. 4 In

res ponse to this letter , t he trial court vacated its April 14 fee award and s et a h earing

o n Moor e ’ s repo rt and fee application f or May 26

. At the hearing, the trial court heard evidence by way of Moore ’ s affidavit, in whi ch he atte sted that:

• He ha d extensive exper ience as a receiver;

• It was customary for a receiver to be award ed 25% of the jud g ment as a reasonable fee for his services;

• A t the time of his appointment, Alls tate had not paid the unde rlying judgment;

• He had performed fourteen hours of work as receiver i n this case ;

4 This letter is the first re cord evidence showing any intenti o n on Allstate ’ s part to formally object to the order for turnover and appoint ing Moore as receiv e r , despite Allstate ’ s ack nowledgme nt that it h a d receiv ed notice of the order soon af ter it was entered on December 16

. Still, Allstate did not f ile its object

ion to Moo re ’ s appointment until the night of May 25

— more than five months after hi s appointment and less tha n fifteen hours in advance of the hearing to app r ove Moore ’ s final report and fees.5

• A ll of this work was done while he was on vacation and during the holiday
season and consisted of numerous communica tions and n ego tiations with the parties , reviewing docu m ents, and filing his oat h and bond ;

• He obtained full payment of the $109,382 judgment

— that had gone un paid for nearly two years

—

in nin eteen days, wh i ch he characterized as “ an e xtraordinary result , ” given th at it typic all y takes at least thirty days for i nsurance companies to pa y judgment s to him as a receiver and that it occurred during the holidays

. Allstate pr offered no evidence at the hearing.
After the hearing, the trial court entered its Or der Approving Receiver ’ s Fee in
whic h it again approv ed Moore ’ s report but award ed him a reduced fee of $15,000.
In this order, the trial court found that “ 25% of the amount c ollec ted ” was the u sual
and c ust omary fee paid to post

- judgment re ceiv ers in Tarrant County. Bu t , considering the eviden ce in lig ht of the Bergeron factors , it found that the reduced fee

was reasonable

. See Bergeron v. Session , 561 S.W.2d 551 , 554 (Tex. App.

— Dallas 1977,
writ ref’d n.r.e.)

. Allstate file d its n oti ce of appeal on Jul y 7, 2022, see k ing to appeal both the
O rder Requ iring Turnover and Appointing R eceiver and the Order Approving
Receiver’s Fee.
II
. STANDARD O F REV IEW
We r eview the trial court ’ s ruling of a turnover o rder, an order appointing a

r ece iver , and an order approvin g a receiv er ’ s fee for ab use of di scretion

. Beaumont Bank, N.A. v. Buller

, 806 S.W.2d 223 , 226 (Tex. 1991 ) ; Wells v. Poindexter , No. 14

- 13

- 00982

- CV, 2014 WL 4202527, at *3 (Tex. App.

— Houston [14t h Dist.] Aug. 26, 2014,6

pet. d eni ed) (mem. op.) (citing Beau m o nt Bank , 806 S.W.2d at 226 ) ; Moy er v. Moy er , 183 S.W.3d 48, 51 (Tex. App.

— Austin 2005, no pet.)

. A trial court abuses its discretion if it acts without reference to any guiding rules or princip l es
— that is, if its
act is arb itr ary or unreasonable. Low v

. Henry , 2 21 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings , 134 S.W.3d 835, 838

– 39 (Tex. 2004).

III. DISCUSSION On appeal, Allstate raises t wo issue s : wh ether the trial cour t abused its
discret i on by (1) entering its Order Requiring T urnover and Appoint i ng Receiver and ( 2 ) awar ding a re ceiversh ip fee of $ 15,000.
A. O RDER R EQUIRING T URNOVER AND A PPO INTING R ECEIVER Allstate first argues that the trial court abused its discretion by entering the
O r der Requiring Turnover and Ap pointing Receiver on December 1 6, 2021.
Allstat e ’ s m ain conte ntion is that no grounds or evidence existed to sup port the
turnover order or to necessi t ate the appoint ment of a receiver

. But w e must dismiss
A llstate ’ s appeal a s it relates to th is order because it was not t imely filed

. A turnove r order t hat serves as a mandatory injunction is a final , appealable judgment

. Alexander Dubose Jefferson & Townsend LLP v . Chevron Phillips C hem. Co. , 540 S.W.3d 577, 586

– 87 (Tex. 2018 ) ; Burns v. Mil ler, Hiersche, Martens & Haywa r d, P.C. , 909 S.W.2d 505, 506 (Tex . 1995) (p er curiam)

. This is true even when the turnover order also appoints a receiver. Abira Med. Lab ’ ys, LLC v. St. Jude Med. SC, I nc. , No. 14

- 17

- 00849

- CV, 2018 WL 3911084 , at *1 (Tex. A pp.

— Houston [14th Dist.] Aug. 1 6,7

2018, no pet.) (mem. op.); see Bahar v. Lyon Fin. Servs., Inc. , 330 S.W.3d 379, 386

– 87 (Tex. App.

—

Austin 2010, pet. denied) (holding that the ap pel lant failed to timely appeal fr om the final turnover order, w hich also appo inted a receiver) ; see also Wi l kin s v. State Farm Mut. Auto . Ins

. , 58 S.W.3d 176, 179

– 80 (Tex. App.

— Houston [14th Dist.] 2001, no pet.) (holding that a motion for new trial filed more than twenty days after the trial court signed a turnover o rder that also appoint ed a receiver extended appellate deadlines beca use the o rder was final, not interl ocutory). N otices of appeal
from f inal judgments “ must be filed within 30 days after the judgment is signed. ”
Tex. R . App. P. 26.1

. The time for fil i ng a notice of appeal is jurisdictional in t h e appellate courts and w e must di smiss the appeal absent a timely

- filed notice of appeal.
In re K.L.V. , 109 S.W. 3d 61, 67 (Tex. App.

— Fort Worth 200 3, pet . denied) (citing
Verb urgt v. Dorner

, 959 S.W.2d 615, 6 1 7 (Tex. 1997).
The turnover order here was a final , appealable order bec ause it served as a mandatory injunction by requir ing Allstate and th ird parties to turnover relevant assets
and enjoined Allstate from transferring , encumbering, or concealing non

- e xempt
prop erty. See Schultz v. Fifth Ju d icial Dist. Court of App eals at D allas , 81 0 S.W.2d 738,
7 39

– 40 (Tex. 1991) (holding that a turnover order was a mandatory in junction and,
there fore, final and appealable where it ordered , among oth e r things , the ju d gm ent debtor to turnover paychecks to th e receiver ) , abrog ated on other grounds by In re
Sh eshtawy , 154 S.W.3d 114, 124

– 25 (Tex. 2004)

. The trial court signed the order on Decembe r 16, 2 021. But Allstat e did not file its notice o f appeal of th i s order u n til8

July 7 , 2022. Given that more than 200 days passed between the signing of the

turnover order and the filing of Allstate ’ s notice of appeal, it was untimely, a nd we do not have jur isdiction t o consid er it

. See Burns , 909 S.W.2 d at 506.
For these rea s ons , we d i smiss Allstate ’ s appeal so far as it pertains to the trial

court ’ s Order Requiring Turnover and Appointing Receiver.

B
. O R DER A

PPROVING R

ECEIVER ’ S F E E Allstate next contends t hat the trial court abused its discretion by awar ding $15,000 in rec e ivership f ees because the receive r “ sought a windfall rather than a
reasonable fee

. ” According to Allst ate, Moore ’ s fee was not reasonable because he only sent “ a couple of emails ” and Allstate ’ s payment of the judgment was spurred not by thes e email s bu t rather Allstate lea rning of the issuance of mandate in Allstate I

. We hold that the trial court did not abuse its discretion in awarding the receivership
fees.
The turn over statu te provides a trial court with the discretion to “ appoint a receiver with t h e a uth or ity to take possession of the nonexempt property, sell it, an d pay the proceeds to the judgment creditor. ” Tex. Civ. Prac. & Rem. Code Ann. § 31.002(b)(3). “ T he judgment creditor is entitled t o recover reasonable costs. ” Id. § 31.002( e )

. “ A re c eiver ’ s fees ar e con sidered court costs, and th u s a trial co urt may award reasonable receiver ’ s fees. ” Vaccaro v. Raymond James & Assocs. , 655 S.W.3d 485,
490 (Tex. App.

— Fort Worth 2022, no pet.)

. Whe ther a receiver ’ s fee is reasonabl e is9

deter mined by t he val ue of his services

. Bergeron , 561 S.W.2d at 554

. We consider s ix
f actors in determin ing this value: (1 ) the nature, exte nt and value of the administered estate; (2) the co mplexity and difficulty of the work; (3) the time spent; ( 4) the k nowledge, exp eri ence, lab or, and s kill r equired of, or devoted by the receiver; (5) the diligence and thoroughness dis played; and (6) the r esults accomplished.
Id

. at 55 4

– 55. Here, the value of the judgment was $10 9,382.02 , and the only evidenc e before
the trial court was that this amount remained unpaid for approximately twenty
months before Moore was appointed receiver

. This included two months of
nonpay ment even after ma ndate issued from our judgment affirming the award of
attorney ’ s fees in Allstate I

. Mo or e attes ted that he was an experienced receiver who performed fourteen hours of work on this case , most of which occurred while he was on vacation during the holidays. This work consisted mainly of communication s with the parties but also included document review and the filing of his oath and bond.
A nd Moore ’ s work resulted in the expeditious and full payment of the judgment

w ithin three weeks of his appointment

. Additionally, even though the trial court initially awarded Moore a fee of 25% of the judg m ent ( $27,345) , i t with drew this award upon Allstate ’s objection . After the
heari ng , the trial court reduced th e award to $15,000 ( or about 14% of the judgment)

— d espite finding that 25% was the customary receivership fee in Tarrant
Coun t y . See Evans v. F

r ost N at ’ l Bank , No. 05

- 12

- 01491

- CV, 201 5 WL 4736543, at *510

(Tex. App.

— Dallas Aug. 11, 2015, no pet.) (mem. op.) ( affirming award of receiver ’ s fee on th e basis that t he trial court determined the reasonable fee after holding an evidenti a ry hearing

)

. Tak in g t h is evidence and record together , we cannot con clude that the trial court acted unreasonably or a rbitra rily in awarding $15,000 in receiver ’ s fees to
Moore

. See Low

, 2 2 1 S

. W

. 3 d at 614

.

I V
. CON CLUSION
Ac cordingly , w e dismiss Allsta t e ’ s appeal as to t h e tria l court ’ s Order Requiring
Turnover and Appointing Receiver and affirm the trial court ’ s Order Approvin g Receiv er ’ s Fees

. /s/ Brian Walker
Brian Walker Justice
Delivere d: April 27, 2023