Court of Appeals
Tenth Appellate District of Texas
10-24-00346-CV
Bo Fontana,
Appellant
v.
Tiffany & Co.,
Appellee
On appeal from the
18th District Court of Johnson County, Texas
Judge Sydney B. Hewlett, presiding
Trial Court Cause No. DC-C202300102
JUSTICE HARRIS delivered the opinion of the Court.
MEMORANDUM OPINION
Appellant, Bo Fontana (hereafter “Fontana”), appeals from a turnover
order rendered by the trial court in proceedings initiated by Appellee, Tiffany
& Co. (hereafter “Tiffany”), to recover certain pieces of jewelry purchased on
credit by Fontana and left unpaid. In two issues, Fontana asserts that the trial
court abused its discretion by appointing a post-judgment receiver over
property for which Tiffany produced insufficient evidence that Fontana owned,
and that the trial court’s order did not provide a mechanism to allow Fontana to provide necessities for his family. Tiffany asserts that we lack jurisdiction
over this appeal because the order is not a final, appealable order. We will first
address whether this turnover order is final and appealable as to convey
appellate jurisdiction. We find that the order is final for purposes of appeal,
and we reverse the receivership order, in part, and render the order invalid as
to “all non-exempt assets owned, directly or indirectly, by Bo Fontana,” and
valid as to only the “Eight Assets” set forth below.
Background
On February 10, 2023, Tiffany filed suit against Fontana in the 18th
Judicial District Court of Johnson County, Texas, to recover amounts owed for
certain pieces of jewelry purchased by Fontana. On January 31, 2024, the
parties entered a Rule 11 Settlement Agreement in which Fontana agreed to
pay Tiffany $687,500.00 on or before March 1, 2024. Fontana did not pay the
sum by that date. The trial court subsequently entered an agreed judgment
awarding Tiffany recovery in the amount of $985,492.50. Fontana did not pay
this judgment either.
Tiffany later filed a motion for a post-judgment receivership. Fontana
filed a response. On October 3, 2024, the court held a hearing on the motion,
during which the trial court informed the parties it would be granting the
motion. The trial court gave the parties an opportunity to strike and revise
provisions in an Order Appointing Receiver and Compelling Discovery. The Fontana v. Tiffany & Co. Page 2 parties made revisions. Beyond those revisions and a comment by counsel for
Fontana that he is “opposed to the receiver,” the parties did not object to any
provisions in the order. On the same day, the trial court granted the motion
and entered the Order Appointing Receiver and Compelling Discovery which
is the subject of this appeal. Fontana filed his notice of appeal on October 22,
2024.
Turnover Order
The “Turnover Statute” provides judgment creditors with a procedural
device to assist them in satisfying their judgment debts. Beaumont Bank, N.A.
v. Buller, 806 S.W.2d 223, 224 (Tex. 1991). To accomplish turnover, a court
may “appoint a receiver with the authority to take possession of the nonexempt
property, sell it, and pay the proceeds to the judgment creditor to the extent
required to satisfy the judgment.” TEX. CIV. PRAC. & REM. CODE § 31.002(b)(3).
I. Jurisdiction
Usually, only final judgments are subject to appeal. Alexander Dubose
Jefferson & Townsend LLP v. Chevron Phillips Chem. Co., L.P., 540 S.W.3d
577, 582 (Tex. 2018). However, the finality of turnover orders differs from the
traditional concept of finality. Id. A turnover order is final and appealable if it
was in the nature of a mandatory injunction. Schultz v. Fifth Jud. Dist. Ct. of
Appeals at Dall., 810 S.W.2d 738, 740 (Tex. 1991), abrogated on other grounds,
In re Sheshtawy, 154 S.W.3d 114 (Tex. 2004). A provision of a turnover order Fontana v. Tiffany & Co. Page 3 is in the nature of a mandatory injunction if it requires a party to take
affirmative action. See Alexander Dubose Jefferson & Townsend LLP, 540
S.W.3d at 587 (stating that a portion of a turnover order was in the nature of
a mandatory injunction because it required the judgment debtor to deliver
funds directly to the judgment creditor).
Through multiple provisions, the order directed Fontana to deliver to the
receiver “all non-exempt assets owned, directly or indirectly, wherever located,
including accounts, personal property, intangible property, and real property.”
These provisions order Fontana to take affirmative action and are thus
injunctive and appealable. See Alexander Dubose Jefferson & Townsend LLP,
540 S.W.3d at 587; see also Schultz, 810 S.W.2d at 740. Having determined
that these provisions are final for purposes of appeal, we turn to the breadth
of these provisions.
II. Evidence Supporting Turnover Order
By his first issue on appeal, Fontana asserts that the trial court abused
its discretion in appointing a post-judgment receiver over property for which
Tiffany produced insufficient evidence that Fontana owned. Fontana
essentially argues that the turnover order is too broad.
Standard of Review
We review a trial court's order requiring turnover and appointing a
receiver under an abuse of discretion standard. Beaumont Bank, N.A. v. Buller, Fontana v. Tiffany & Co. Page 4 806 S.W.2d 223, 226 (Tex. 1991). A trial court may be reversed for abusing its
discretion only when it acts in an unreasonable or arbitrary manner, that is, if
it acts without reference to any guiding rules and principles. Id. A trial court's
issuance of a turnover order will not be reversed for abuse of discretion if the
judgment is sustainable for any reason. Id. Whether there was no evidence to
support the turnover award is a relevant consideration in determining if the
trial court abused its discretionary authority in issuing the order. Id.
Applicable Law
Section 31.002(a) states that “a judgment creditor is entitled to aid from
a court of appropriate jurisdiction, including a justice court, through injunction
or other means in order to reach property to obtain satisfaction on the
judgment if the judgment debtor owns property, including present or future
rights to property, that is not exempt from attachment, execution, or seizure
for the satisfaction of liabilities.” TEX. CIV. PRAC. & REM. CODE § 31.002(a). The
statute does not specify or restrict the way in which evidence may be received
for a trial court to determine whether Section 31.002(a) is satisfied. Klinek v.
LuxeYard, Inc., 672 S.W.3d 830, 835 (Tex. App.—Houston [14th Dist.] 2023, no
pet.). The statute does not require that such evidence be in any particular
form, reach any particular level of specificity, or reach a particular quantum
before the court may grant aid under Section 31.002. Id. The statute only
requires that the judgment debtor: (1) own property (including present or Fontana v. Tiffany & Co. Page 5 future rights to property) and (2) that is not exempt from attachment,
execution, or seizure for the satisfaction of liabilities. TEX. CIV. PRAC. & REM.
CODE § 31.002(a).
Discussion
At the hearing on the Motion for Post-Judgment Receivership, Tiffany
submitted evidence in an attempt to prove Fontana owned various property.
Fontana admits that Tiffany proved Fontana had an ownership interest in
three assets: (1) jewelry Fontana purchased from Tiffany, which is the subject
of the underlying judgment, (2) real property located at 105 Syble Jean Drive,
and (3) real property located at 401 Madeline Lane. Fontana argues that
Tiffany did not prove the ownership of any assets other than the Three Assets.
We do not think that Tiffany must definitively prove the ownership of every
asset the order covers. Instead, we hold that as long as some evidence of a
substantive and probative character tending to prove that Fontana owned a
particular asset was before the trial court when it signed the order, then the
trial court did not abuse its discretion as to that asset. See Tanner v. McCarthy,
274 S.W.3d 311, 331 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (“A trial
court will not be reversed for an abuse of discretion so long as there is some
evidence of a substantive and probative character to support the decision.”).
Moreover, while Section 31.002(h) provides that “a court may enter or
enforce an order under this section that requires the turnover of nonexempt Fontana v. Tiffany & Co. Page 6 property without identifying in the order the specific property subject to
turnover,” several Texas courts require evidence for each asset subject to the
order. TEX. CIV. PRAC. & REM. CODE § 31.002(h); See Hamilton Metals, Inc. v.
Glob. Metal Servs., Ltd., 597 S.W.3d 870, 883 (Tex. App.—Houston [14th Dist.]
2019, pet. denied) (holding that a trial court abused its discretion in signing a
receivership order to the extent the order applied to property other than that
which was sufficiently evidenced before the court); see also Great N. Energy,
Inc. v. Circle Ridge Prod., Inc., No. 06-16-00029-CV, 2016 WL 7912458, at *11
(Tex. App.—Texarkana Sept. 28, 2016, no pet.) (same); Stanley v. Reef Sec.,
Inc., 314 S.W.3d 659, 669 (Tex. App.—Dallas 2010, no pet.) (same). We join
the Houston, Dallas, and Texarkana courts and hold that for a trial court to
issue a turnover order, each piece of property to be subject to the order must
be sufficiently evidenced before the trial court.
The evidence before the trial court when it signed the turnover order was
legally sufficient to show that Fontana had ownership interests in the following
property or assets:
1) certain pieces of jewelry Fontana purchased from Tiffany which are
the subject of the underlying judgment;
2) real property located at 105 Syble Jean Drive;
3) real property located at 401 Madeline Lane;
4) real property located at 1400 East Tioga Court;
Fontana v. Tiffany & Co. Page 7
5) real property located at 330 Madeline Lane;
6) the photographed boat depicted in the record;
7) the photographed trailer depicted in the record;
8) the photographed travel trailer depicted in the record
(collectively, the “Eight Assets”). It is undisputed that Tiffany proved the
ownership of the first three assets. As for the remaining five assets, the record
shows that there was some evidence of a substantive and probative character
tending to prove Fontana owns these assets before the trial court when it
issued the order. Fontana admitted to owning real property located at 1400
East Tioga Court and real property located at 330 Madeline Lane in a
deposition from another lawsuit. The boat, trailer, and travel trailer can be
seen on Fontana’s property in photographs. Fontana’s interests in any
corporation, limited liability company, general partnership, and limited
partnership were clearly excluded from the order during the parties’ revisions.
Accordingly, the assets held by any such entities, in which Fontana has an
ownership interest, are not subject to the turnover order and are not included
in this discussion.
As for the Eight Assets, we hold that there was at least some substantive
and probative evidence that Fontana owned those assets in front of the trial
court when it signed the order. See Tanner, 274 S.W.3d at 331. To the extent
that the trial court appointed a receiver over “non-exempt assets owned, Fontana v. Tiffany & Co. Page 8 directly or indirectly, by Bo Fontana,” other than the Eight Assets, the order
was not sufficiently supported by evidence and constituted an abuse of
discretion. See Hamilton Metals, Inc., 597 S.W.3d at 883; see also Great N.
Energy, Inc., 2016 WL 7912458 at *11; Stanley, 314 S.W.3d at 669.
Fontana’s first issue is sustained in part as to “all non-exempt assets
owned, directly, or indirectly, by Bo Fontana,” other than the Eight Assets.
III. Necessities
Additionally, Fontana complains that the order does not provide any
mechanism for Fontana to pay for necessities. Fontana does not argue that
this constitutes an abuse of the trial court’s discretion, but rather requests this
Court provide such a mechanism. While Fontana complained at the hearing
about a lack of such a provision, Fontana did not object to said missing
provision. Moreover, Fontana was afforded the opportunity to revise the order
prior to its signing but did not add such a provision. Consequently, Fontana
did not preserve this complaint for appeal. TEX. R. APP. P. 33.1; D & M Marine,
Inc. v. Turner, 409 S.W.3d 853 (Tex. App.—Fort Worth 2013, no pet.) (declining
to reverse a turnover order for error not properly preserved for appeal).
Fontana’s second issue is overruled.
Conclusion
The trial court did not abuse its discretion in appointing a receiver as to
the Eight Assets. As for “all non-exempt assets owned, directly or indirectly, Fontana v. Tiffany & Co. Page 9 by Bo Fontana,” subject to the order other than the Eight Assets, the trial court
abused its discretion in appointing a receiver over them. Accordingly, we
reverse the receivership order in part and render the order invalid as to “all
non-exempt assets owned, directly or indirectly, by Bo Fontana,” and valid as
to only the Eight Assets.
LEE HARRIS
Justice
OPINION DELIVERED and FILED: August 27, 2026
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Reversed and rendered in part
Affirmed in part
CV06
Fontana v. Tiffany & Co. Page 10