CLARKE AS NEXT FRIEND OF v. WOLF (2025)

OPINION

This appeal concerns the propriety of orders dismissing claims under Texas Rule of Civil Procedure 91a based on derived judicial immunity. Appellees Jeanna Clarke Wolf, Joy Eckelkamp, and Eva S. Engelhart were alleged to be involved in the administration of the estate of Donald Mack Clarke. In this proceeding ancillary to the probate of that estate, appellant Ruth Braham Clarke, as next friend of B.D.C., the estate beneficiary, asserted tort and professional malpractice claims against appellees, claiming that they conspired to dilute the value of the estate's asset to the detriment of B.D.C. The trial court dismissed all claims under rule 91a. In two issues, Clarke contends that the trial court erred in determining that her claims have no basis in law or fact. We affirm.

Background

In October 2023, Clarke sued Wolf, Eckelkamp, and Engelhart for breach of fiduciary duty, constructive fraud, negligence and gross negligence, unjust enrichment, and professional malpractice. According to Clarke's petition, Donald Mack Clarke (“Donald”) died on January 31, 2021, which resulted in the underlying probate case.¹ Clarke's allegations focus on one asset of Donald's estate, Clarke Distributing Company, LLC (“CDC”), alleged to be a “dynastic” business entity valued at millions of dollars. After Donald's death, Clarke alleges, “Wolf took control of the Estate and acted as manager of CDC and administrator of the Estate.” Wolf later requested that Eckelkamp be appointed as successor administrator. Engelhart was appointed as receiver for CDC. Clarke alleges that the “three defendants conspired to cause CDC to become insolvent so that they can benefit as much as possible from taking [B.D.C.]’s money and interest in the Estate by misuses of their various positions, authority and a deliberate chain of appointments to dilute liability and cover their tortious acts.” Clarke contends that appellees’ mismanagement of CDC caused the company to “lose significant market value,” resulting in its ultimate sale for less than $200,000. Clarke claims that the use of a receiver maximized appellees’ aggregate profit and deprived the minor beneficiary of his inheritance, thereby enriching themselves at the beneficiary's expense.

Engelhart and Eckelkamp answered with general denials and pleaded the affirmative defense of derived judicial immunity. Engelhart claimed derived judicial immunity as a court-appointed receiver in the underlying probate matter, and she attached to her answer a copy of the agreed order appointing her as receiver of CDC. Eckelkamp claimed derived judicial immunity based on her appointment as dependent administrator. Wolf asserted a general denial and did not raise any affirmative defenses. All three defendants filed motions to dismiss under Texas Rule of Civil Procedure 91a.

A. Engelhart's Motion

Engelhart argued in her motion that she was entitled to derived judicial immunity as a court-appointed receiver. She relied on the factual allegations in Clarke's pleading to support her defense of derived judicial immunity, because Clarke alleged that Engelhart was appointed as receiver in July 2022. Additionally, Engelhart attached to her motion a copy of the order appointing her as receiver, as well as other orders in the underlying probate matter, including the court order approving the sale of CDC.

In Clarke's response, she acknowledged that the court appointed Engelhart as receiver and that Engelhart “sought judicial approval at each step of the liquidation process.” She urged, however, that Engelhart's “status alone does not automatically confer derived judicial immunity for all of her actions” and that derived judicial immunity “does not shield receivers acting outside the scope of authority granted by the appointing court.” According to Clarke, Engelhart's “motion is premature, as the applicability of derived judicial immunity depends on factual determinations that cannot be made at this early stage.” Although Clarke suggested that Engelhart acted outside the scope of her authority, Clarke's petition complains only of acts Engelhart allegedly took in her capacity as receiver of CDC. After a hearing, the trial court granted Engelhart's motion and dismissed with prejudice all claims against her.

B. Eckelkamp's Motion

In her motion to dismiss, Eckelkamp also relied on derived judicial immunity as an appointed dependent administrator of Donald's estate. She asserted that court appointed administrators, such as herself, are immune from liability for actions grounded on their conduct as administrators. She stated that it was “undisputed” that she was appointed as temporary dependent administrator in the probate proceedings and that Clarke's statement in her petition that Eckelkamp “was appointed” on January 13, 2022, standing alone, is sufficient to establish the affirmative defense of derived judicial immunity. Eckelkamp's motion also refers to numerous pleadings in the underlying probate matter that were not attached to Clarke's petition, nor do they otherwise appear in our record; however, Eckelkamp requested that the trial court take judicial notice of its “file.”

In her response, Clarke asserted that derived judicial immunity “does not protect actions outside of official duties or those undertaken with malfeasance or in bad faith” and that Eckelkamp's “conduct exceeded her administrative responsibilities, lacking proper court supervision or approval,” and thus she did not qualify for judicial-immunity protection. The trial court signed an order granting Eckelkamp's motion and dismissing with prejudice all claims against her.

C. Wolf's Motion

In Wolf's motion to dismiss, she argued she was entitled to dismissal under rule 91a because a rule 11 agreement in the probate case (attached to her motion) settled the underlying will contest and defeated the alleged factual and legal grounds for recovery against her. She also attached the court order dismissing the will contest and admitting the will to probate.

In her response, Clarke asserted that her claims were “legally cognizable” because representatives of estates are fiduciaries. She contended that she “alleged specific acts and omissions ․ that, if true, could establish the elements of each claim.” The trial court granted Wolf's motion to dismiss and dismissed with prejudice all claims against her.

After the court dismissed with prejudice her claims against all three appellees, Clarke filed a motion for new trial, which the court denied. Clarke timely appealed.

Analysis

A. Standard of Review

Rule of Civil Procedure 91a provides that “a party may move to dismiss a cause of action on the grounds that it has no basis in law or fact.” Tex. R. Civ. P. 91a.1. A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought. Id. A cause of action has no basis in fact if “no reasonable person could believe the facts pleaded.” Id. “We review the merits of a Rule 91a motion de novo.” San Jacinto River Auth. v. Medina, 627 S.W.3d 618, 628 (Tex. 2021) (citing City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) (per curiam)); see Cooper v. Trent, 551 S.W.3d 325, 329 (Tex. App.—Houston [14th Dist.] 2018, pet. denied).

We look solely to the pleading of the cause of action and any attachments to determine whether the dismissal standard is satisfied. Cooper, 551 S.W.3d at 329. We construe the pleadings liberally in favor of the pleader, look to the pleader's intent, and accept as true the factual allegations in the pleadings. Id. In doing so, we apply the fair-notice standard of pleading. Id.; see also Tex. R. Civ. P. 45. Courts are not to consider evidence in deciding a motion to dismiss under rule 91a. See Tex. R. Civ. P. 91a.6.

Appellees based their respective motions to dismiss on affirmative defenses. Rule 91a permits motions to dismiss based on affirmative defenses “if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought.” Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d 651, 656 (Tex. 2020) (quoting Tex. R. Civ. P. 91a.1). A court may consider the defendant's pleading if necessary to determine whether an affirmative defense has been properly raised. Id.

All three appellees attached documents to their motions to dismiss that Clarke had not attached to her petition. We typically do not consider exhibits attached to a defendant's answer or motion in rule 91a proceedings. Id. at 654 (quoting Tex. R. Civ. P. 91a.6). Clarke, however, did not object to appellees’ attachments in the trial court but rather acknowledged them in her responses. On appeal, moreover, Clarke does not assert that the trial court erred by considering appellees’ evidence. In the absence of any complaint in the trial court or on appeal regarding a failure to limit consideration to the plaintiff's pleading in rule 91a proceedings, we will consider the record as presented to the trial court. See Tex. R. App. P. 33.1(a)(1) (party must object in trial court to preserve error); Sposito v. Rollins-Threats, No. 05-23-00597-CV, 2024 WL 3355048, at *4-5 & n.2 (Tex. App.—Dallas July 10, 2024, pet. denied) (mem. op.); see also Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d 763, 782 (Tex. 2020) (“A court of appeals may not reverse a trial court judgment on a ground not raised.”).

B. Application

Engelhart and Wolf first argue that we should affirm the judgment as to them without addressing the merits because Clarke's brief fails to comply with several briefing rules. See Tex. R. App. P. 38.1(g) (statement of facts must be supported by record references), 38.1(i) (argument must be supported with appropriate citations to authorities and to the record). To be sure, Clarke's brief is not a good example of a rule-compliant one. And much of her substantive argument consists of unsupported, conclusory assertions. While we would be justified in overruling many of her arguments for these reasons, we will address her issues as best we can in the interest of justice.

1. Engelhart

In her first issue, Clarke challenges the trial court's dismissal of her claims against Engelhart. Engelhart sought dismissal under rule 91a based on the affirmative defense of derived judicial immunity.

When judges delegate their authority or appoint others to perform services for the court, the absolute judicial immunity barring civil liability that attaches to the judge may follow the delegation or appointment. Dallas County v. Halsey, 87 S.W.3d 552, 554 (Tex. 2002); Davis v. West, 317 S.W.3d 301, 306-07 (Tex. App.—Houston [1st Dist.] 2009, no pet.); Delcourt v. Silverman, 919 S.W.2d 777, 781 (Tex. App.—Houston [14th Dist.] 1996, writ denied). This is so because the policy reasons for judicial immunity—protection of individual judges and of the public's interest in an independent judiciary—are also implicated when judges delegate their authority and appoint persons to perform services as officers of the court. Davis, 317 S.W.3d at 306-07 (citing Halsey, 87 S.W.3d at 554). Those clothed with authority to perform judicially appointed or delegated duties, including court-appointed receivers, are entitled to derived judicial immunity if they actually function as an arm of the court. See Delcourt, 919 S.W.2d at 782.

Texas uses a functional approach in determining whether a person is entitled to absolute derived judicial immunity. Halsey, 87 S.W.3d at 556-57; Davis, 317 S.W.3d at 307; Delcourt, 919 S.W.2d at 782. Under that approach, courts determine whether the activities of the person seeking immunity are intimately associated with the judicial process and whether the person exercises discretionary judgment comparable to a judge. Halsey, 87 S.W.3d at 554; Davis, 317 S.W.3d at 307; Delcourt, 919 S.W.2d at 782. “The functional approach focuses on the nature of the function performed, not the identity of the actor, and considers whether the conduct is like that of the delegating or appointing judge.” Davis, 317 S.W.3d at 307 (citing Halsey, 87 S.W.3d at 555). Once a person is cloaked with derived judicial immunity because of a particular function being performed for a court, every action taken with regard to the function, whether good or bad, honest or dishonest, well-intentioned or not, is covered and immune from civil suit. Id.; B.K. v. Cox, 116 S.W.3d 351, 357 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (“Once applied to the function, the cloak of immunity covers all acts, both good and bad.”).

It is undisputed that Engelhart performed the function of a court-appointed receiver. A court-appointed receiver “ ‘acts as an arm of the court and is immune from liability for actions grounded in [her] conduct as receiver.’ ” See Davis, 317 S.W.3d at 307 (gathering cases holding that court-appointed receivers were entitled to derived judicial immunity) (quoting Rehabworks, LLC v. Flanagan, No. 03-07-00552-CV, 2009 WL 483207, at *2 (Tex. App.—Austin Feb. 26, 2009, pet. denied) (mem. op.)).

Because derived judicial immunity is an affirmative defense, we look to Clarke's pleading to determine whether the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle her to the relief sought. Bethel, 595 S.W.3d at 656. Clarke alleges that Engelhart was appointed receiver of CDC, and this fact is not disputed. Moreover, all of the actions about which Clarke complains are grounded in Engelhart's conduct as a receiver. For example, Clarke contends that the defendants breached their fiduciary duties by: (1) making “the unilateral decision to terminate key employees who were integral to the business's operations and success”; (2) engaging “in reckless depletion and squandering” of CDC's assets; (3) “discontinuing efforts to collect on outstanding accounts receivable”; (4) failing to ensure “the business was adequately staffed to maintain its operations”; and (5) mismanaging CDC, resulting in “a significant erosion of the business's goodwill.” These alleged breaches, according to Clarke, resulted in CDC's assets being liquidated at “firesale [sic] prices, far below their actual worth.” Clarke alleges that the defendants engaged in constructive fraud by providing “misleading information about the financial health and prospects of the business,” “diverting business opportunities, misappropriating funds, and engaging in self-dealing.” She asserts the defendants were negligent by failing to ensure CDC's “safe and proper management,” “failing to adhere to industry standards,” inadequately training employees, and neglecting to implement necessary safety measures. Clarke complains that the defendants were grossly negligent by “knowingly cutting corners on safety to save costs, ignoring known hazards, and failing to take corrective action when problems were identified.” She claims the defendants were unjustly enriched because they “took advantage of their position of power and control over the business” and “used the assets and opportunities presented to them in the course of business to secure profits and benefits for themselves” instead of acting in the business's best interests. Finally, she contends the defendants engaged in professional malpractice because they “represented themselves as professionals capable of maximizing the economic benefits of the company as a going concern,” when they were instead “solely interested in liquidating the company to receive money from the sale.”

In support of her contention that Engelhart is not entitled to derived judicial immunity, Clarke relies heavily on Alpert v. Gerstner, 232 S.W.3d 117 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). There, beneficiaries of three trusts disputed who should be trustee. Id. at 119. The probate court appointed Gerstner as trust receiver so that no loss or injury would impair the trusts pending resolution. Id. at 119-20. The order appointing Gerstner provided her “the same powers and duties as a trustee.” Id. at 120. Later, Gerstner resigned as receiver, and the beneficiaries sued Gerstner and the law firm she used in performing her duties as receiver for breach of fiduciary duty, alleging that the trusts had significantly declined in value and that Gerstner failed to properly exercise her trustee powers. Id. at 120-21. Gerstner sought summary judgment, asserting that the beneficiaries’ claims were barred by judicial immunity. Id. at 122. The beneficiaries argued that Gerstner was not protected by judicial immunity because their claims “were based on her failure to perform her duties and obligations as a trustee for the Trusts, not on her ‘judicial functions.’ ” Id. at 122. The trial court granted summary judgment in Gerstner's favor, and the beneficiaries appealed. Id.

The First Court of Appeals held that Gerstner was entitled to derived judicial immunity in part, to the extent that her duties aligned with the purposes for which she was appointed as receiver, but not to the extent she “was acting as a representative of the interests of the beneficiaries and not as an agent of the court.” See id. at 130-31.

The facts of today's case are readily distinguishable. The probate court appointed Engelhart solely as receiver for CDC, not as a trustee, and none of the purportedly tortious acts identified in Clarke's petition were alleged to have been taken by Engelhart in any capacity other than as receiver. Clarke acknowledges that Engelhart was appointed solely as a receiver to liquidate CDC's assets. Although Clarke argues on appeal that derived judicial immunity applicable to a court-appointed receiver does not apply to acts taken outside the receiver's authority, she identifies in her pleading no acts that Engelhart undertook supposedly outside her authority.

While it is unnecessary to consider the attachments to Engelhart's rule 91a motion, we note in particular one document—the agreed order appointing Engelhart receiver—is not disputed. Clarke's arguments ignore that the trial court empowered Engelhart, as CDC's receiver, “unequivocally and unilaterally, to sell or abandon” all of CDC's assets.² To achieve that end, the trial court delegated to Engelhart broad powers, such as authorizing her to take control of CDC's “finances, bookkeeping, accounting, revenue, tax reporting, record keeping, business operations, and property.” Engelhart was authorized to “settle any debts of the Company, hire or terminate any persons, add or remove any officer, director, or manager of the Company, and/or act as sole manager for the Company.” In short, the receivership order imbues Engelhart with broad authority to take such as action necessary to “comply with the directives contained in the Order, namely to sell, abandon, or dispose of all Receivership Assets.”

Accordingly, under the functional approach to derived judicial immunity, we hold that Engelhart is entitled to derived judicial immunity for her actions taken in association with her receivership duties, about which Clarke complains. See, e.g., Wilkinson v. USAA Fed. Sav. Bank Tr. Servs., No. 14-13-00111-CV, 2014 WL 3002400, at *8 (Tex. App.—Houston [14th Dist.] July 1, 2014, pet. denied) (mem. op.) (receiver was entitled to derived judicial immunity where plaintiff alleged claims for defamation, fraud, breach of fiduciary duty, and DTPA violations that he allegedly committed while performing his duties). None of Clarke's allegations reasonably can be construed to extend to actions taken outside of Engelhart's authority as receiver. Cf. 1st & Trinity Super Majority, LLC v. Milligan, 657 S.W.3d 349, 367-68 (Tex. App.—El Paso 2022, pet. denied) (“Parsing out the [plaintiffs]’ allegations in their pleadings, however, we find nothing in their claims that would support a finding that the trial court assigned any duties to Milligan outside his role as receiver, or that Milligan exceeded his authority in performing his duties.”).

In part of her first issue, Clarke mentions in passing that the probate court “lacked jurisdiction to create a rehabilitative receivership,” that it “had no functional authority to appoint” Engelhart, and that the “kind of receivership ordered by the Court could only be issued by Brazoria district court.” But the propriety of the receivership order itself is not before this court. E.g., In re Est. of Hallmark, 629 S.W.3d 433, 436-37 (Tex. App.—Eastland 2020, pet. denied) (reviewing interlocutory appeal of order appointing receiver).

We overrule Clarke's first issue.

2. Eckelkamp and Wolf

In her second issue, Clarke challenges the trial court's orders dismissing her claims against Eckelkamp and Wolf based on rule 91a.

In her motion to dismiss, Eckelkamp asserted that she was entitled to the defense of derived judicial immunity because she was appointed by the trial court as temporary dependent administrator of Donald's estate in the underlying probate proceedings, a fact Clarke does not contest.³ Eckelkamp referred the court to several documents contained in the probate court's file and asked the court to take judicial notice of its file.⁴ Again, Clarke raises no complaint that the trial court improperly considered documents or matters outside of her petition.

Eckelkamp argued that her appointment as temporary dependent administrator meant that she acted as an “arm of the court” and could “take no action as administrator of Decedent's Estate without first obtaining approval from the Court and must account for every asset that comes into her possession as administrator.” Eckelkamp asserted that, just as a court-appointed bankruptcy trustee is entitled to derived judicial immunity, see Clements v. Barnes, 834 S.W.2d 45, 46 (Tex. 1992) (per curiam), so too is she. Thus, according to Eckelkamp, she is entitled to derived judicial immunity and Clarke's claims fail as both a matter of law and fact.

Derived judicial immunity may attach to persons authorized or appointed by a judge to perform services for the court. See Halsey, 87 S.W.3d at 554. A temporary administrator is considered an officer or agent of the court, assisting in the temporary administration of the estate. Cathey v. Shields, 385 S.W.2d 889, 891 (Tex. App.—Austin 1965, writ ref'd n.r.e.) (citing Ex parte Lindley, 354 S.W.2d 364, 366 (Tex. 1962) (noting that temporary administrator “is but an officer or agent of the court to assist the court in the temporary administration of estates”)); see generally Tex. Est. Code ch. 452 (“Temporary Administration of Estates”). In her role as temporary dependent administrator of Donald's estate, therefore, Eckelkamp was entitled to derived judicial immunity. Cf. Halsey, 87 S.W.3d at 554 (“The policy reasons for judicial immunity are also implicated when a judge delegates or appoints another person to perform services for the court or when a person otherwise serves as an officer of the court.” (emphasis added)); Delcourt, 919 S.W.2d at 782; see also Cathey, 385 S.W.2d at 891. Clarke has not demonstrated that the trial court erred in granting Eckelkamp's motion to dismiss. We overrule this part of Clarke's second issue.

As to Wolf, Clarke makes no mention of the rule 11 agreement that Wolf relied on in her motion to dismiss. She did not object to consideration of the rule 11 agreement in the trial court, and she does not argue that the trial court erred in granting Wolf's motion to dismiss based on this agreement. When, as here, the trial court does not specify the ground on which it relied, a party appealing the grant of a rule 91a motion to dismiss must challenge every ground on which the trial court could have granted the motion. Emmanuel v. Izoukumor, 611 S.W.3d 453, 458 (Tex. App.—Houston [14th Dist.] 2020, no pet.). Because Clarke has not challenged every ground on which the trial court could have relied when granting Wolf's motion to dismiss, we must affirm that dismissal. See id. Accordingly, we overrule Clarke's second issue.

Conclusion

Having overruled both of Clarke's issues, we affirm the trial court's orders dismissing her claims.

FOOTNOTES

1.   Clarke's lawsuit is ancillary to Donald's probate proceeding, cause no. PR41274.

2.   In her brief, Clarke acknowledges: (1) that Engelhart was appointed as receiver by the trial court to liquidate CDC; (2) that “receivers generally enjoy broad protection for faithful performance of judicial functions”; (3) the “broad language” contained in the trial court's “liquidation order”; (4) that Engelhart “sought judicial approval at each step of the liquidation process”; and (5) that Clarke had “notice of Engelhart's actions and did not object.”

3.   Eckelkamp was acting as temporary dependent administrator when she filed her petition to appoint Engelhart as receiver.

4.   Clarke did not object to the request for judicial notice, and we presume the court did so. See In re K.F., 402 S.W.3d 497, 504 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (stating that reviewing court presumes trial court took judicial notice of its record without any request being made and without any announcement that it has done so).

Kevin Jewell, Justice