### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00581- CV

Valerie Thomas Bahar, M.D. and Valerie Thomas Bahar, M.D., P .A., Appellants

v. Lyon Financial S ervic es, Inc., A Minnesota Cor poration d/ b/a U.S. Ban corp Manifest F und ing S ervic es, Appellee

F ROM CO UNTY COURT AT LAW NO . 1 O F TRAVIS CO UNTY NO. C-1 -CV- 06- 0033 90, H ONO RAB LE J. DAVID P HI LLIP S, JUDGE P RESIDING

O P I N I O N

I n this restric ted appea l, appellants Valer ie Thomas Ba har, M.D. and Valer ie Thomas Ba har, M.D., P.A. (collec tively “B ahar ”) appea l two post-judgme nt orde rs , as s erting t hat t he trial
court err ed in compelling discovery , imposing discovery sanctions o n Ba har and her attorney (including assessing attorney ’s fee s), amending a pre- exis ting turnover order , and deny ing Ba har’ s motion for continuance

. We w ill dismiss the appea l in part for lack of subject- matter jurisdiction,

reve rse the imposit ion of attorney ’s fee s ag ainst Ba har, and otherwise aff

irm the trial court’s order s.

F ACTUAL AND P ROCEDURAL BACK GR OUND Appellee L y on Financ ial Service s, I nc., a Minnesota Corporation d/b/a U.S. Ba ncorp Manifest Funding Service s (“L y on”), obtained a defa ult judgme nt in Minnesota ag ainst Ba har that it later domesticated in Travis County

. To aid in en fo rcing the judgme nt, the trial court signe d aturnover order appointing Riecke Ba umann as master in chanc ery and rec eiver of Ba har’ s non-exempt assets. See Tex. Civ. Prac. & Rem. C o d e An n. § 31.002 (West 2008) (statute authorizing turnover order and appoint m ent of rec eiver ); Tex. R. Civ. P. 171 (rule authorizing appointment of master in chanc ery ). Attempting to locate Ba har’ s non-exempt assets, Ba umann propounded various written discovery reque sts on Ba har and also t o o k h er deposition. Ba har’ s counsel objected to numer o u s discovery reque sts and terminated her deposition ear ly due to a dispute with Ba umann. Ba

umann filed a motion to co m p el and a motion to amend the turnover order to

ex pand his investiga tive power s. Ba umann also reque sted attorney ’s fee s for the time he s p en t draf ting and arg uing both motions. Ba umann schedule d these motions for hear ing. Asserting that her attorney had a scheduling conflict, Ba har moved to continue the hear ing on Ba umann’s motions, but did not set her motion for continuance for hear ing or otherwise submit the mo t i o n t o t h e trial court for a ruling . The he aring , which B aumann a nd counsel for L y on attended but B ahar and her attorney did not, proce eded as schedule d. At the hear ing, the court g rante d Ba umann’s motions and denied Ba

har’ s motion for continuance

. The court later memorialized its g rant of Ba umann’s motions in two order s, but did not reduc e to writing its oral denial o f Ba har’ s motion for continuance

. Ba

har initially soug ht mandamus re l i ef from the court’s ruling s, which this Court denied. See In re Bahar , No. 03-09-00359- CV, 2009 WL 2437222 , at *1 (Tex. App.—Austin J uly 28, 2009, orig

. proce edin g [m and. denied]) (mem op.). After we denied her petition for mandamus, B ahar

filed this restricte d appea l.

2STANDARD OF REVIEW To preva il on a restric ted appea l, the appea ling party must establish that: (1) it filed notice of the restric ted appea l within six months afte r the judgme nt was signe d; (2) it was a party to the underlying lawsuit; (3) it did not participa te in the hear i n g t h at re s ulted in the judgme nt complained of and did not timely file any postjudgment motions or reque sts for finding s of fac t and

co nclusions of law; and (4) err or is appar ent on the fac e of the rec ord. Alexande r v. L yn d a ’s Boutique , 134 S.W .3d 845, 848 (Tex. 2004) (citing Tex. R. Civ. P. 26.1(c) , 30; Quaestor Invs., Inc.

v. State of Chiapas , 997 S.W .2d 226, 227 (Tex. 1999)). We cannot consider any extrinsi c evidenc e;

our revie w is limit ed to the fac e o f t h e rec ord. Id. “The fac e of the rec ord, for purposes of a restri cted appea l, consists of all the paper s that wer e befor e the trial court when it rende red its judgme nt.” Cox v. Cox , 298 S.W .3d 726, 731(Tex. App.—Austin 2009, no pet.) (citing Alexande r , 134 S.W .3d at 848-49).

DISCUSSIO N

I n five iss u es , Ba h ar asser ts that (1) she “ca

n preva il on [her] restric ted appea l”; (2) the trial court abused its discretion in deny ing her motion fo r co n t i n u ance; (3 & 4) the order compelling discovery is “void as a matter of law” or, alterna tively , t h e trial court abused its discretion in g ranting Ba

umann’s motion to compel; and ( 5) the trial c ourt abused its discretion in rende ring the amende d turnover order

. I n response , L y on arg ues that this Court lacks subject-matter jurisdiction ove r B ahar ’s appe al bec ause the re is no “fina l judg ment” as that term is unde rstood in the context of a post-judgme nt rec eiver ship proce eding

. I n the alterna tive, L y on asser

ts that Ba har’ s restric ted appea l should fail beca use Ba har ( 1 ) “ p a

r ticipated” in the proce eding resulting in the order s
3on appea l, and (2) failed to show err or on the fac e of the rec ord. L y on also reque sts that we impose

sanctions ag ainst Ba

har’ s counsel for

filing a frivolous appe al.

Does this Cou rt Have Jurisdiction over Bahar’s Appeal?

Gene rally , appellate courts hav e ju r is d ic ti o n o n ly o v e r a

p p e a ls f r o m “ f in a l ju d g me nts” and cer tain appea lable interlocutory order s. Lehmann v. Har-Con Corp. , 39 S.W .3d 191, 200 (Tex. 2001); Tex. C i v . Prac. & Rem. Code Ann. § 51.014 (West 2008) (lis ting appeala ble i nterlocutory order s). I n the prese nt case , the domesticated Minnesota judgme nt is the “fina l judgme nt” betwee n the parties, as it disposes of all claims and all parties in the underly ing l aw s u i t

. S

ee Lehmann , 39 S.W .3d at 200; see also Tex. R. Civ. P. 301 (“O nly one final judgme nt sha ll be rende red in a ny

cause except wher e it is otherwise specia lly provided by law.”)

. Although the order s appea led here

wer e rende red i n p ro ceeding s held in aid of satisfy ing that judgme nt and thus do not fit into Lehmann ’s conventional f inal-judg ment analy sis, we ar e not without guida nce. ( i) Turnover/Rec eive rship Order Although most writs and order s in aid of execution a re not a ppeala ble, the supreme court has held that a turnover order is a final, appea lable judgme nt. Schultz v. Fif t h Judicial Dist. Court of Appeals , 810 S.W .2d 738, 740 (Tex. 1991), a b r o g a t ed o n other grounds by In re Sheshtawy , 154 S.W .3d 114, 124-25 (Tex. 2004); see also Burns v. Miller, Hiersche , Martens & Hayward, P.C. , 909 S.W .2d 505, 506 (Tex. 1995) (per curia m) (holding that appellate court err ed in apply ing interlocutory appellate deadlines to appea l from turnover order “bec ause a turnover order i s a final, appea lable judgme nt”). We also have jurisdiction over a trial court order “th at

4resolves a discrete issue in connec tion with any rec eiver ship.” Huston v. Fede ral Deposit Ins. Corp. ,

800 S.W .2d 845, 847 (Tex. 1990) (“pr e-judg ment” rec eiver ship procee ding) . Fur ther, we and our sister courts have exercised jurisdiction over the post-judgme nt appointment of a rec eiver when that appointment was made pursuant to the turnover statute. See Moye r v. Moye r , 183 S.W .3d 48, 51 (Tex. App.—Austin 2005, no pet.); see also Stanley v . Ree f Sec., I nc. , 314 S.W .3d 659, 670 (Tex. App.—Dallas 201 0 , no pet.); Suttles v. Vestin Realty Mortgage I, Inc. , Nos. 01-09-01023- CV & 01- 10-00071-CV, 2010 WL 1611765, at *2 (Tex . App.—Houston [1st Dist.] Apr. 22, 2010, no pet.) (me m. op.).

L y on conce des t hat we would have had jurisdiction over an appea l from the initial
t u rn o v er order that was rende red in 2007 if Ba har had timely appea led that order

. See Valer i e Thomas Bahar, M.D., P.A. v. L yon Fin. Servs., Inc. , No. 03-07-00469-CV, 20 0 9 W L 2341864, at *4 (Tex. App.—Austin J uly 28, 2009, no pet.) (me m. op.) (dism issing Baha r’s appeal of turnover order for failure to timely perf ect appea l). L y on arg ues, howeve r, that beca use the amende d turnover order at issue here mere ly “cla rif[ies] the exis ting rec eiver ’s power s, adjusting for the intransig ence of [Bahar ],” we do not have jurisdiction over it. Alterna tively , L y on appea

rs to arg ue that we have jurisdiction only over complaints about the new provisions of the amende d turnover/r ece ivership order , i.e., provisions that were not also prese nt in the prior orde r.

Although sty led as an “ame nded turnover order ,” the 2009 order from which the
prese nt appea l is taken is rea l l y t h e “sec ond amende d” turnover order in the case . The orig inal
turnover order was rende red in 2007 and was not timely appea led to this Court, as noted above. The

5second order (the “first amende d”) was rende red in May 2008 and was not appea led. The 2008 1 amende d turnover or der w as, in turn, amende d by the 2009 order at i ssue here. The 2009 orde r is virtually identical to the 2008 order

. The only chang es are the addition of several new provisions (1) expressly authorizing the rec eiver to br ing contempt proce eding s befor e the court, (2) order ing Ba har to produce rec ords of her pay ments to her attorney s “since t h e fi rst turnover order was g rante d,” (3) order ing Ba

har to turn over all tax ref

unds to the rec eiver , (4) requiring Ba har to notify the rec eiver of any interests she has in any probate estates, and (5) awa rding Ba umann attorney ’s fee s “for obtaining this orde r.”

A post-judgme nt turnover order is a “proc edura l device by which judgme nt cre ditors
may rea ch assets o f a d eb t o r t h at are otherwise difficult to attach or levy on by ordinary leg al
proce ss.” Beaumont Bank , N.A. v. Buller , 806 S.W .2d 223, 224 (Tex. 1991). A turnover order
require s the debtor to bring to the cou rt all documents or proper ty used t o satisfy a judgme nt. The actua l eff ect of the [t urnov er statute] is to require the burden of p ro d u ct i on of proper

ty which is subject to execution to be place d with the debt o r instead of a

cre ditor attempting to satisfy his judgment.

The May 2008 t u rn o v er /rec eiver ship order was not included in the record of the present 1 appellate cause . A copy of that order was, howeve r, included in the rec ord of a rela ted appea l from the same trial-cour

t cause involving the same parties. See Valerie Thomas Bahar, M.D., P.A. v. Lyon Fin. Servs., Inc. , No. 03-07-00469-CV, 2009 WL 2341864 (Tex. App.—Austin J uly 28, 2009, no pet.) (mem. op.). “I t is well rec og nized that a trial court may take judicial notice of its own rec ords in a cau s e involving the same subject matter betwee n the same, or prac tically the same, parties.” Sierad v. Barnett , 16 4 S

. W

. 3 d 471, 481 (Tex. App.—Dallas 2005, no pet.) (quoting Gardner v. Martin , 345 S.W .2d 274, 276 (Tex. 1961)). Acc ording ly , we take judicial notice of the amende d turnover order rende red by the tr i al co u rt in 2008 and contained in the rec ord of appellate cause number 03-07- 00469-CV. 6Id. at 2 2 6

. I t i s beca use a turnover order “ac ts as a mandatory injunction ag ainst the judgme nt debtor” that it is reviewable on appea l. Schultz , 810 S.W .2d at 740; see also K ennedy v. Hudnall , 249 S. W

. 3 d 5 2 0, 524 (Tex. App.—Texarkana 2008, no pet.) (holding that self-sty led “turnove r order ” that mere ly require d sheriff to “seize and sal e [ sic] the proper ty ” did not act as injunction
ag ainst debtor and was not appea lable). Of course , a turnover order is not rea lly a “fina l judgme nt” in that it does not finally dispose of all parties an d al l issues. See Lehmann , 39 S.W .3d at 200. Rather , i t i s t h e ab i lity of t he turnover order t o be “rea d to act as a mandatory injunction as t o the judgme nt debtor or transfe ree ” that allows courts to deem it so. Kennedy , 249 S.W .3d at 524. One important conseque nce o f deeming the turnover order a final judgme nt is to subject it to the deadlines for perf

ecting appea l contained in Texas Rul e o f Appellate Procedur e 26.1, see Burns , 909 S.W .2d at 506, and, we think, to the acc ompany ing jurisdictional analy sis should a timely appea l
not be filed, see W

agner & Brown, Ltd. v. Horwood , 58 S.W .3d 732, 737 (Tex. 2001) (app ellate court doe s not have jurisdiction unless timely notice of a

ppeal is filed)

. Ordinar ily , an amende d final order superse des any prior final order when the “orde r amounts to something more than marking throug h [an ear lier date] and substitut ing another date on the final order .” Old Republic Ins. Co. v. Scott , 846 S.W .2d 832, 833 n.2 (Tex. 1993) (holding date of final judgme nt for purpose of appellate filing deadlines was later date, not ear lier). When the trial
court signs an amende d order , the orig inal order become s “a nullity .” Id. As the orig inal judgme nt

cea ses to have le g al ef

fec t, only the amende d judgme nt can support a n appea l. Although the core of the amende d-orde r rule articula ted in Old Republic —that an amende d order superse des the order it amends—a lso applies to “fina l, appea lable” order s rende red

7in aid of enfor cin g a judgme nt, the rule’s eff ect on our appellate j urisdiction in that context is not

as clea r cut. This is beca

use the rule makes at least two key assumptions not prese nt in appea ls from order s rende red i n ai d of enfor ceme nt. First, it assumes that the trial court has a finite—and rela tively short—amount of time during which to amend its final judgme nts, i.e., the plenar y -powe r period. See Tex. R. Civ. P. 329b (deta iling time period for expiration of court’s plenar y power ); see also M alone v. Hampton , 182 S.W .3d 465, 470 (Tex. App.—Dallas 2006, no pe t.) (“[A] suit ends when the trial court’s plenar y power over the proce eding ends. The very purpose of limit ing a trial court’s plenar

y power over a proce eding is to fore close the p o s s i b i l i t y of a suit continuing indefinitely even though a final judgme nt has been obtained.”)

. Second, the rule assumes that there

can be only one “fina l” judgme nt, except in the rar e instance wher e it is provided for by other law. See Tex. R. Civ. P . 301; Lehmann , 39 S.W .3d at 195 (c iting Thomas v. Oldham , 895 S.W .2d 352, 356 (Tex. 1995)).

I n contra st, the court’s post-judgme nt power to enfor ce its judgme nt and to aid t he judgme nt c reditor in his eff orts to c ollect on that judgme nt can last until the judgme nt is satisfied. See Tex. R. Civ. P. 308; Matz v. Bennion , 961 S.W .2d 445, 4 5 2 (T ex . Ap p.—Houston [1st Dist.] 1997, pet. denied) (“The only limit o n a t ri al court’s authority to enfor ce its [j udg ment] is ‘that enforceme nt order s may not be inconsistent with the orig inal judgme nt and must not constitu t e a materia l chang e in substantial adjudicate d portions of the judgme nt.’” (quoting K a t z v. Bianchi , 848 S.W .2d 372, 374 (T ex . Ap p . —Houston [14t h Dist.] 1993, orig

. proce eding [l eave denied])). Thus, the court may rende r a number of amende d turnover order s, al l o f wh i ch could be final, appea lable judgme nts if they satisfy Schultz ’s test by acting as mandatory injunctions. See

8Arndt v. Farris , 633 S.W .2d 497, 499 (Tex. 1982) (“While the trial court’s power t o v ac at e,

modify , corr ect, or ref

orm a judgment ceases under R ule 329b(d) thirty day s after

the judg ment is signe d, the court’ s power to enfor ce its judgme nt is not so limit ed. The g ener al rule is that ever y court having jurisdiction to rende r a jud gm en t h as the inhere nt power to enfor ce its judgme nts.” (Citation omit ted)).

Thus, we actua lly have the opposite set of assumptions opera ting here : the court can (1) exercise its inhere nt power to enfor ce its judgme nts for a indefinite period of time, and (2) rende r

m u l t i p l e judgme nts, on the same or differ ent issues, over a period of months or even y ear s . T h i s

means that, as is the case here , the trial court could amend an otherwise final, appea lable order long afte r the deadline for appea ling the first order has passed. I n that circ umstance, exercisi ng jurisdiction over the portions of the amende d order that could have been timely appea led, but wer e not, would rende r the a

ppellate de adlines of r

ule 26.1 meaning less. Kee ping in mind the filing deadlines of rule 26.1, we conclude that beca use the 2008 order was not appea led, an asser tion of jurisdiction by this Court over the entire 2009 order —which i n cludes, verba tim, the 2008 order ’s s ubstantive provisions—would serve to improperly resur rect the unappea led, “fina lly final” portions of the 2008 orde r. See Tex. R. App. P. 26.1; W agner & Brown, Ltd. , 58 S.W .3d at 737. Acc ording ly , we hold that Ba har’ s failure to appea l the 2008 order

means that this Court lacks jurisdiction to revie w those portions o f t h e 2009 order that wer e also
prese nt in the 2008 order. 2

Our holding is nece ssarily limit ed to case s in which, as here , the am en d ed o rd er was 2 rende red after rule 26.1’s deadlines for appea l of the orig inal order had passed. We do not addre ss the circ umstance wher e a post-judgme nt order is amende d befor e the expiration of those deadlines. 9( ii) Master-in-Chance ry Order We lack appellate jurisdiction to revie w an o rder appointing a master in chanc ery ,
even w hen the maste r is appointed at the sa me time a s a rec eiver and in the same orde r manda ting
turnover. See Moye r , 183 S.W .3d 48 at 58; see also Sheik v. Sheik , 248 S.W .3d 381, 3 9 3 -94 (Tex. App.—Houston [1st Dist.] 2007, no p et.). The appointment of a master in chanc ery is revie wable only by mandamus. S h ei k , 2 4 8 S.W .3d at 394 (“The proper vehicle to challeng e the master- in-cha ncer y portion of the complained- of order is by mand am u s.”). Consequently , we must dismiss Ba har’ s appea l insofar as it challeng es the amende d turnover order ’s
master- in-cha

ncer y provisions.
( iii) D iscove ry Order and D iscove ry Sanctions Post-judgment o r d e r s r e g a r d in g d is c o v e r

y d is p u te s a

r e n o t f in a l, a p p e a la b le ju d g ments

over which this Court has jurisdiction. See Fisher v. P.M. Clint o n Int’l Inve stigati ons , 81 S.W .3d 484, 486 (Tex. App.—Houston [1st Dist.] 2002, no pet.); Colli er Servs. Corp. v. Salinas , 8 1 2 S.W .2d 372, 375 (Tex. App.—Corpus Christi 1991, no pet.); see also Arndt , 633 S

. W

. 2 d at 500 n.5. Such order s are revie wable only by mandamus. Salin as , 812 S.W .3d at 375; Parks

v. Huffington , 616 S.W .2d 641, 645 (Tex. Civ. App.—Houston [1st Dist.] 1981, writ ref ’d n.r.e.)

. Consequently , we lac k jurisdiction to review the or der c ompelling discove ry .

A post-judg ment imposit ion of monetary sanctions, however, is a final, appea lable judgme nt “whe n the sanctions are reduc ed to a j u d gm en t and execution is authorized there on.” Arndt , 633 S.W .2d at 500 n.5. Her e, the or der c ompelling discove ry imposed monetary sanctions

10on Ba

har. Although the order did not expli citly state that “execution is a uthorized,” it disposed of the sanc tions iss ue and w ould support execution. Accor dingly , we ha ve jurisdiction to reviewit.

I n addition to g ranting Ba umann’s motion to compel discovery and imposing sanctions on Ba

har, the court’s order also stated that “Joseph Wil lie, I I I , defe nse counsel, is order ed to personally

appea r for all future he aring s, depositions and examinations.” Ba har c omplains that this order violates numerous rules and statutes. We c annot addre ss this part of Ba har’ s complaint, howeve r, bec ause she lacks standing to assert it.

“[A] lack of standing deprive s a court of subject matter jurisdiction beca use standing is an element of such jurisdiction.” Texas Ass’n of Bus. v. Texas Air Control Bd. , 852 S.W .2d 440, 444-45 (Tex. 1993). “Te x as courts have long held that an appea ling party may not complain of

err ors that do not injuriously aff ect it or that mere ly aff

ect the ri gh t s of others.” Torringt on Co.

v. S t utzman , 46 S.W .3d 829, 843 (Tex. 2000). “An appellant is not harme d when san ct i o n s

are imposed solely ag ainst the appellant’ s attorney

. . . . Acc ording ly , such an appellant lacks standing to challeng e sanctions on appea l.” Niera v. F r o s t N a t ’l Bank , No. 04-09-00224- CV, 2010 WL 816191, at * 1 (Tex

. App.—San Antoni o Mar. 10, 2010, pet. denied) (mem. op.) (citing Matbon, Inc. v . Gries , 287 S.W .3d 739, 740 (Tex. App.—Eastland 2009, no pet.) ).

As in Niera , the sanction in question here was imposed only on the attorney , not on the litigant her self. Althoug h the cour t’s order require s Wi llie to personally appea r at future court proce eding s, it does not constrain Ba har’ s fre edom to dismiss Wil lie or instruct him not to repr esent her at those proce eding s. Also, the transcr ipt from the sanctions hear ing indicates that by order ing

11Wil lie to personally appea r at future proce eding s, the court wa s sanctioning him—not Baha r—for what it viewed a s Wi llie’s “obstrepe rousness.” T he cour t’s oral ruling makes this plain.

And I will order Mr. Willie—Dr. Will ie . . . t o appea r per sonally

since his motions for continuance have all said that his persona l appea ranc e is nece ssary to adequately assure the re prese ntation of Dr. Ba har and her P.A. I think he should cer tainly be her e.

Be cause Ba

har lacks standing to complain about the imposit ion of sanctions ag ainst Wil lie, we lack subject-matter

jurisdiction over this portion of the discover y order

. See id.

Did Bahar “Part

icipate in th e Hearing that Resulted in the Judgm ent Com plained of”? L y on arg ues that Ba

har’ s restric ted appea l f

a il s b e c a u s e s h e p a r ti c ip a ted in the hear ing that resulted in the judgme nt by fili n g wr i t t en re s p onses to the motions at issue. I t arg ues that, beca use the court did not need to have a “for mal fac t-finding hear ing” and beca use Ba har “ac tually did file written response s to eac h motion,” Ba har participa ted in the “key decision-making event.” See Cox , 298 S.W .3d at 730 (“To deter mine wh et h er [t he appellant] meets the non-par ticipation require ment of a restric ted appea l, we ask whether he took part in the decision-making event that resulted in the a djudication of his rig hts.”).

Although Ba

har submitt ed written arg

ument and evi d e n c e in response to the motions,

we cannot say that she “par ticipate[d] in the hear ing that resulted in the judgme nt complained of.” Alexande r , 134 S.W .3d at 848. “The nature and extent of participa tion neces s ar y to prec lude

a restric ted appea l in any particula r ca s e i s a matter of deg ree beca use trial courts decide

case s in a wide variet y o f p ro ce d u ral settings.” Id. (citing Texaco v. Central Power & Light

12Co. , 925 S.W .2d 586, 589 (Tex. 1996)). “The pivotal question to be answe red when an al y zing the participa tion require ment of a restric ted appea l is whethe r appellant took part in the decision-making event that results in the adjudication of his r ights.” Rivero v. Blue Keel Funding, L.L.C

. , 127 S.W .3d 421, 423-24 (Te x . App.—Dallas 2004, no pet.). At the hearing in the present

case , the trial co urt considere d the evidenc e and orally ruled on the motions. Unlike summary judgme nt pr ocedur e, Ba

har would have had an opportunity to present e vidence at the hea ring

. Cf. id. (noting that written response to motion for summary judgme nt is party ’s opportunity to pr esent evidenc e and, for that rea so n , co n s t i t u tes participa tion). We think that, under the circ umstances, the hear ing from which Ba har was absent constituted the “a ct u al trial” of the issues decide d by the order s appea led here

. See i d

. Ac co rdi ng ly , we hold that Ba har met the
non-par ticipation require ment.

Is Error A

pparent on t

he Face of the Rec ord?
( i) Denial of Motion for Cont inuance I n Ba har’ s second issue, she arg ues that the trial court err ed in overr uling her motion for continuance of the hear ing on Ba umann’s motions. Be cause the 2009 order was, at least in part,

a “fina l, a ppeala ble” order , and beca

use Ba har’ s motion for continuance rela ted to the hear ing that resulted in that order , we have jurisdiction to revie w the trial court’s denial of Ba har’ s motion. We revie w a trial court’s ruling on a motion for continuance for an abuse of discretion. See BMC Software Belg., N.V. v. Marchand , 83 S.W .3d 789, 800 (Tex. 2002). “A trial court ‘abuse s its discretion when it rea ches a decision so arbitra ry and unrea sonable as to amount t o a cl ea r and

13prejudicia l error of law.’ ” Id. (quoting Johnson v. Fourth Court of A ppeals , 700 S.W .2d 916, 917 (T ex . 1985)). Be cause this is a restricted appeal, our revie w i s limit ed to deter mining whether an abuse of discretion is appa

rent on the f

ace of the re cord. See A lexande r , 134 S.W .3d at 848. Ba har reque sted a continuance of the April 29, 2009 hear ing, asser ting t h at her lawy er, Mr. Wi l l i e, was schedule d to be at a jury trial in a criminal case in Houston beg inning the same day

. She arg ues that the local administrative rules that g overn conf l icting court settings required the court to g ra n t h er m o tion. Citi ng the reg ional rules of administration for the second a dminist rative judicia l reg ion of Tex as, Bahar contends that the j udg e lac ked discre tion to deny her continuance

. The second reg ion, howeve r, does not include Travis Cou n t y , wh er e this matter is pending ; thus, those rules did not bind the trial court. See Tex. R. Civ. P. 3(a) (allowing

enac tment of local and reg ional rules of proce dure)

. The third reg ion, of which Travis County is a part, has simil ar rules fo r h andling attorney scheduling conflicts. Rule 7, entitled “Conflicting Eng ag ements,” state s:

B. When an attorne y is assigne d to two courts for the same da te: 1. I t is the duty of the attorney to call the aff ecte d judge s’ attention to all conflicting settings as soon as they are known or rea sonab l y may be anticipa ted. 2. When a conflicting setting problem is made known, the af fe cted judge s should confer

and ag ree on which ca se has pr iority

. 3. The following priorities are established to aid judge s in de termining which ca se has pr iority :

a. Criminal case

. . . . b. Case g iven pre fer ence by statute
14c. Earliest set c ase d. Earliest filed c ase e. Court i n multi-judge counties should y ield to single judge counties and c ourts of multi-county districts 4. I n the event the aff ecte d judge s cannot ag ree on which case has priority , the question shall be resolved by the reg ional presiding judge or judge s. I f two or more reg ions are aff ecte d and the reg ional presiding judge s cannot a gree, the questi on shall be resolved by the Chief J u s tice of the Supreme Court of the State of Texas, or by another Supreme Court Jus tice desig nated by the Chief Just ice.

Tex

. R

. J u d. Admin. [3d Admin. Dist.] 7, available at http:// www.c ourts.state.tx .us/3ajr/pdf/ 3ajr-r ules.pdf. Assuming without deciding that Ba har is corr ect that the trial court had no choice but
to g rant her continuance if she complied with the require ment s o f t h e fore g oing rule, Ba har’ s challeng e fails beca

use the rec ord does not d em o nstrate her compliance

. Specifica lly , the rec ord does not show that Ba

har’ s atto rn ey n o t i fi ed the Har ris County criminal court of the conflicting settings. See id. R. 7(B )(1)

. Such notification is ma ndatory

. See id. (“I t is the duty of the attorney
to c all the aff

ecte d judge s’ attention to a ll c onflicting settings

. . . .”). Be cause the rec ord does not show that Ba

har g ave both judg es the required notice, there is no err or apparent on the face of the

rec ord. Alexande r , 134 S.W .3d at 848. We overr ule B ahar ’s third issue. 3

I n addition, we note that there is evidenc e in the rec ord that could support a conclusion that 3 Ba har’ s lawy er delibera tely set the criminal matter in Har ris County to conflict with the previously schedule d hear ing in Travis County as a way to delay that hear ing. The rec ord sug g ests that Ba har’ s lawy er reque sted the April 29 criminal setting in Har ris County only after repr esenting to Ba umann that he wa s available for the Travis Count y hear ing on that day . Ba umann, who lives in Houston, actua lly attended the Har

ris County criminal proc eeding in question, y et also attende d the hearing in Austin later that day

. At the hear ing in Austin, he repr esente d to the trial court that Ba har’ s lawy er had appea red at the Har

ris County docket call for less than ten minutes in order to rese t the rele vant

15(

ii) The Turnover/Rec eive r Order I n her f ifth issue, Ba

har asserts num erous c halleng es to the cour t’s turnover or der. Only her challeng e to the court’s awa rd of attorney ’s fee s, howeve r, is direc ted at a provision of the 2009 order not also prese nt in the 2008 order ; there fore , that is the only challeng e over which we have jurisdiction. Ba

har arg ues that the trial court abused its discretion in awa rding attorney ’s fee s to Ba umann for obtain i n g t h e am ended turnover order beca use he provided no evidenc e as to the method of ca lculating the fe e, nor its re asonable ness or ne cessity

.

“We revie w a turnover order , an appointment of a rec eiver , and an awa rd of fee s to the rec eiver for an abuse of discretion.” Mo ye r , 1 83 S.W .3d at 51 (citing Beaumont Bank , 806 S.W .2d at 226). “[R] equests for attorney ’s fees i n g ener al m ust meet cert ai n re q u i re m ents.” W oollett v. Matyastik , 23 S.W .3d 48, 52 (Tex. App.—Austin 2000, pet. denied)

. Such reque sts must be rea sonable and be supported by expert testimony and evidenc e of the attorney ’s “hourly rate and the hours expended.” Id. at 52-53.

Deter mining a rea sonable attorney ’s fee is a question of fac t and the fee awa rd must be supported by competent evidenc e. A court does not have authority to adjudicate t h e re as onablene ss of attorney ’s fee s on judicial knowledg e without the benef it of evidenc e. . . . Whe n n o evidenc e or insufficient evidenc e supports an awa rd, the court a buses its discretion in making the awa rd.

Id. at 53 (c itations omi tted).

cr i m i n al m att er for further procee dings. Ba umann also noted t hat he had no trouble driving from Houston to Austin in t ime for the a fternoon he aring in the Ba har c ase. 16A revie w of the appellate rec ord here shows that the fee awa rd is unsupported by any testimony , either oral or written, t hat would indicate how the fe e wa s calc ulated or w hether it was

rea sonable. This c omplete lack of supporting evidenc e constitutes e rror on the fac e of the rec ord. Acc ording ly , we sustain this portion of Ba har’ s fifth issue.
( iii) D iscove ry Sanctions I n her fourth issue, Ba

har asser ts that the court abused its discretion in awa rding attorney ’s fee s to L y on and Ba umann without supporting evidenc e. The trial court sanctioned Ba har for discovery abuse, order ing her to pay L y on $500 and Ba umann $2,500 in attorney ’s fee s for their time spent prepa

ring the m otion to compel and attending the hearing

. L ike the turnove r-or der f ee

awa rd, awa rding attorn ey ’s fe es here was an abuse of discretion beca use the rec ord contains no evidenc e indicating how the awa rds wer e calc ulated or whether they wer e rea sonable or nece ssary . We sustain Baha

r’s four th issue.
Lyon’s Motion for Ru le 45 Sanction s

L y on reque sts that we impose sanctions ag ainst Ba har for filing a frivolous appea l. See Tex. R. App. P. 45. We conclude that sanctions are not appropr iate. See Easter v. Providenc e Lloyds Ins. Co. , 17 S.W .3d 788, 792 (Tex. App.—Austin 2000, pet. denied) (sanc tions unwar rante d when pa rty had re asonable expectation of re versa l). L y on’s motion for sanc tions is denied.

CONCLUSION We dismiss Ba

har’ s complaints that the trial court abused its discretion in rende ring the 2009 amende d turnover order beca use it (1) “wholly jeopar dizes [Bahar ’s] business

. . . and [her]

17privac y and constitutional rig hts”; (2) failed to “take into consideration the superior fede ral tax lien”;

(3) order ed turnover of Ba har’ s as s et s from third parties; (4) order ed holders of GPS information about Ba har’ s movements to turn over such information to Ba umann; (5) allowed Ba

umann to open all of Bahar ’s m ail without a duty to timely return i t t o h er; and (6) ordere d utilit y companies and financ ial instit utions to provide inf o rm at i o n about Ba

har. We lack subject-matter jurisdiction to
enter tain those complaints beca use the complained- of portions of the 2009 amende d turnover order

wer e also c ontained in the unappe aled 2008 turnove r orde r. I n addition, w e dismiss her c halleng e t o t he trial court’s order complaining that the rec ord lacks the “re quired evidenc e that Ba h ar attempted to hide asse ts.” We also dismis s Ba har’ s challeng es to the orde r appointing a master in chanc ery and the discove ry

order , except as it imposes monetary sanctions on B ahar

. We reve rse the portions of the 2009 amende d turnover order and the discovery order insofar as they require Ba

har to pay L y on’s and Ba

umann’s attorney ’s fee s and rende r judgme nt that L y on and B aumann take nothing by their reque sts f or attorne y ’s fe es. We aff irm the rema inder of the 2009 amende d turnover or der.

__________________________________________ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Pury ear and Pember

ton Affir med in part; Dismissed in part; Rever sed and Rende red in pa rt Filed: Nove mber 5, 2010

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