CAROLINE ALLISON AND RICHARD ALLISON v. BORUNDA JORGE BORUNDA NICHOLAS ABAZA LAW OFFICES OF NICHOLAS ABAZA MICHAEL TREVINO AND LAW OFFICE OF MICHAEL TREVINO PLLC (2026)

MAJORITY OPINION

Appellants Caroline Allison and Richard Allison appeal from the trial court's “Order of Turnover & Appointment of Receiver” (Turnover Order). We affirm.

BACKGROUND

We have seen these parties before. See Allison v. Borunda, P.C., No. 14-24-00753-CV, 2025 WL 3523083 (Tex. App.—Houston [14th Dist.] Dec. 9, 2025, pet. filed) (mem. op.). The background facts underlying this appeal are set forth in our previous memorandum opinion, so we do not repeat them here. See id. We instead set forth only those facts necessary to resolve this appeal challenging the Turnover Order.

After the trial court signed its final judgment in the underlying case, appellees filed a motion seeking to enforce the judgment. Appellees asked the trial court to enforce the final judgment and order appellants to pay the judgment amount within five business days. Appellants filed a response in which they asked the trial court to stay the execution of the final judgment pending the completion of the appeal they had filed challenging the trial court's final judgment. The trial court subsequently signed two orders on the same day related to appellees' motion to enforce. In the first order, the trial court specifically denied appellees' motion to enforce. In the second, the trial court ordered that “the freeze on the Charles Schwab One account of the Minaki Limited Partnership referenced in the judgment shall remain in effect until all appeals of this matter are exhausted or until further notice of the Court.” The trial court, however, specifically struck out the following proposed language from the order: “the Court finds that this alternate security is adequate to protect [appellees]. It is therefore, ORDERED that, pursuant to Texas Rules of Appellate Procedure 24.1(a)(4), (c) and (f), the judgment is superseded and execution of the judgment is suspended until all appeals of this matter are exhausted.”

Soon thereafter, appellees filed an “Application for Post-Judgment Turnover & Appointment of Receiver” pursuant to section 31.002 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code § 31.002. Appellants filed a response opposing the requested relief asserting that appellees had produced no evidence that appellants owned any non-exempt assets that would be subject to such a turnover order. Appellants also renewed their motion to stay execution of the judgment pending appellate review of the underlying final judgment. After an unrecorded oral hearing, the trial court signed appellees' proposed turnover order and added language staying the Turnover Order for thirty days.

Appellants filed a notice of appeal challenging the Turnover Order. They also filed a motion asking the trial court to vacate the Turnover Order or to stay it pending completion of the appeal. The trial court notified the parties that it would be unavailable for a period of time to hear appellants' motions filed after their notice of appeal. At this point, appellants filed a motion to stay the Turnover Order in this court, which we granted. We turn now to appellants' issues raised in this appeal.

ANALYSIS

Appellants raise four issues in this appeal and we address them in order.

I. Standard of review and applicable law

We review the granting of a turnover order for an abuse of discretion. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991); Hamilton Metals, Inc. v. Global Metal Servs., Ltd., 597 S.W.3d 870, 878 (Tex. App.—Houston [14th Dist.] 2019, pet. denied). The trial court abuses its discretion if it acts in an unreasonable or arbitrary manner. Beaumont Bank, 806 S.W.2d at 226.

A judgment creditor may seek a turnover order against a judgment debtor for the satisfaction of liabilities if the debtor owns property, including present or future rights to property, not exempt from attachment, execution, or seizure for the satisfaction of liabilities. Tex. Civ. Prac. & Rem. Code § 31.002(a). A trial court may order the judgment debtor to turn over non-exempt property and may appoint a receiver with the authority to take possession of the non-exempt property, to sell it, and to pay the proceeds to the judgment creditor to satisfy the judgment. See id. § 31.002(b). A trial court may enter or enforce an order under section 31.002 that requires the turnover of non-exempt property without identifying in the order the specific property subject to turnover. Id. § 31.002(h); Hamilton Metals, 597 S.W.3d at 878.

Section 31.002 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. Hamilton Metals, 597 S.W.3d at 878–79; Gillet v. ZUPT, LLC, 523 S.W.3d 749, 754 (Tex. App.—Houston [14th Dist.] 2017, no pet.). The statute also does not require that the evidence be in any particular form, that it be at any particular level of specificity, or that the evidence reach any particular amount before the court may grant a turnover order pursuant to section 31.002. Hamilton Metals, 597 S.W.3d at 878-79. The lack of evidence supporting a turnover order does not automatically invalidate the order, but it is a relevant consideration in determining whether the trial court abused its discretion by signing a turnover order. Id.

This court has previously held that the burden of proving that property owned by a judgment debtor is exempt from execution rests with the judgment debtor. See Klinek v. Luxeyard, Inc., 672 S.W.3d 830, 836 (Tex. App.—Houston [14th Dist.] 2023, no pet.) (collecting cases). Consistent with this precedent, we reject appellants' contention that appellees had the burden to prove that appellants' property is not exempt from execution.¹ Instead, appellees had the initial burden to present some evidence that appellants owned property; the burden then shifted to appellants to assert and prove that they either did not own the identified property, or that the identified property was exempt from execution. Id.

II. The trial court did not abuse its discretion when it signed the Turnover Order.

Appellants initially argue that the trial court abused its discretion when it signed the Turnover Order because there was no evidence in the record that either of them possessed non-exempt property. Appellants' argument focuses on the undisputed fact that they are co-trustees of the Allison Family Trust, and their assertion that appellees improperly used those trust assets to support the entry of the Turnover Order. Because the record contains admissions or other evidence that both appellants owned property subject to seizure to satisfy the judgment against them, we disagree.

We turn first to Caroline. Caroline admitted in the “Motion to Stay Execution of Judgment and Response to Defendants' Motion to Enforce Same” that she and her brother filed that she possessed $422,213.00 worth of “real estate holdings that cannot be liquidated without causing her to suffer severe financial hardship.” We conclude that the trial court could have relied on this judicial admission when it rendered its decision to sign the Turnover Order. See Holy Cross Church of God in Christ v. Wolf, 446 S.W.3d 562, 568 (Tex. 2001) (stating that a judicial admission may be made in a response to a motion or a counter-motion). Turning to Richard, in that same motion, he admitted that he possessed “illiquid fractional interests in entities that Defendants know about.” The trial court could have relied on this admission when it rendered the Turnover Order. See id. Once these admissions were made, the burden shifted to appellants to establish that those assets were exempt from execution. See Klinek, 672 S.W.3d at 836. Neither has pointed to any evidence in the record showing they met this burden. We conclude that the trial court did not abuse its discretion when it signed the Turnover Order because it was supported by some evidence. We overrule appellants' first issue.

III. Appellants have not demonstrated that they were harmed by the trial court's denial of their motion to stay and signing of the Turnover Order.

Appellants argue in their second issue that the trial court abused its discretion when it signed the Turnover Order because they had provided “alternative security” protecting appellees' interest in the underlying judgment. Even if we assume for purposes of appeal that the trial court abused its discretion when it denied appellants' motion to stay and then signed the Turnover Order, we conclude appellants were not harmed because this Court issued a per curiam order on June 11, 2025, staying enforcement of the underlying judgment “pending resolution of this appeal.” Because all trial court proceedings and enforcement of the underlying judgment have been stayed until this appeal is resolved on its merits, we conclude appellants have not established that their substantial rights were affected by the trial court's denial of their motion to stay and the granting of the Turnover Order. See Tex. R. App. P. 44.2(b). We overrule appellants' second issue.

IV. The trial court did not abuse its discretion when it signed the Turnover Order because the order does not exceed the scope of section 31.002 of the Civil Practice and Remedies Code.

Appellants next argue that the trial court abused its discretion because it signed a Turnover Order that exceeded the scope of the authorizing statute in two ways. We address each allegation in turn.

Appellants first argue that the Turnover Order improperly adjudicates the rights of third parties. While it may be true that a turnover order cannot adjudicate the substantive rights of a third-party to the litigation underlying the turnover order, the debtor who is the subject of the challenged turnover order does not have standing to complain about the turnover order's potential burden on third parties. See Michael J. Dixson, PDG, Inc. v. Crimmins, 2025 WL 567552, *7 (Tex. App.—El Paso Feb. 20, 2025, no pet.) (mem. op.) (stating that the judgment debtor has “no standing to complain about the Order's improper burden, if any, on third parties”).

Second, appellants argue that the Turnover Order improperly reaches exempt property. As pointed out above, appellants bore the burden to establish the exempt status of any property appellees sought through enforcement of the Turnover Order. Appellants failed to meet this burden. Further, having reviewed the Turnover Order, we conclude that it carefully delineates that only non-exempt property fits within the definition of “Receivership Assets” turned over to the control of the Receiver appointed by the Turnover Order. We overrule appellants' third issue.

V. Appellants failed to preserve their fourth issue.

Finally, in their fourth issue, appellants argue that the trial court violated their due process rights when the trial court signed the Turnover Order even though appellees did not provide them with a copy of the proposed order a reasonable time before the hearing on the motion. It is undisputed on appeal that appellants timely received (1) a copy of appellees' motion seeking a turnover order; and (2) notice of the hearing addressing the motion. It is also not disputed that appellants failed to lodge any objection to the alleged lack of notice of the proposed order in the trial court. Because a party must preserve a due process complaint like the one raised here by bringing the lack of notice to the trial court's attention through an objection or a motion for continuance, we hold appellants failed to preserve their fourth issue for appellate review. See Tex. R. App. P. 33.1; Low v. Henry, 221 S.W.3d 609, 618 (Tex. 2007) (stating that the proper method to preserve a complaint regarding the lack of adequate notice is to bring the issue to the attention of the trial court through an objection and/or move for a continuance). We overrule appellants' fourth issue.

CONCLUSION

Having overruled appellants' issues, we affirm the trial court's turnover order. We also lift the stay entered by this Court on June 11, 2025.

CONCURRING OPINION

Neither party presented evidence below as to whether the judgment debtor's property was exempt from execution; only the burden of proof can resolve this stalemate. I join the court's opinion placing the burden on the debtor but write separately to offer further thoughts.

The judgment creditor and debtor each say the burden should be placed on the other—and each has cases from our court to support its position. For a sampling of our conflicting case law, compare Klinek v. LuxeYard, Inc., 672 S.W.3d 830, 836 (Tex. App.—Houston [14th Dist.] 2023, no pet.), stating that “the burden of proving that property owned by the debtor is exempt from execution rests with the judgment debtor,”¹ with Stephenson v. LeBoeuf, No. 14-02-00130-CV, 2003 WL 22097781, at *2 (Tex. App.—Houston [14th Dist.] Sept. 11, 2003, no pet.), stating that “the creditor has the burden of proof.”² This conflict has spanned decades. It was first recognized in Lozano v. Lozano, 975 S.W.2d 63, 70 (Tex. App.—Houston [14th Dist.] 1998, pet. denied) (Yates, J., dissenting), and most recently in 2023 when we called our precedent “unclear or inconsistent,” Klinek, 672 S.W.3d at 836 n.3; see also 5 Roy W. McDonald & Elaine A. Grafton Carlson, McDonald & Carlson Texas Civil Practice § 31:65 (2d ed. 2019) (“A split of authority exists as to which party, the creditor or debtor, has the burden to prove the exempt status of property.”).

The court today correctly follows Klinek, which itself adopted our holding in our first pronouncement on this issue. See Rucker v. Rucker, 810 S.W.2d 793, 795 (Tex. App.—Houston [14th Dist.] 1991, writ denied); see also Mitschke v. Borromeo, 645 S.W.3d 251, 258 (Tex. 2022) (intermediate courts must follow “the earliest non-superseded line of cases” when case law conflicts). I therefore join the court in placing the burden of proof on the debtor. And, as night follows day, where we place the burden of proof determines the turnover issue in this and almost all cases.⁴

Placing the burden on the judgment debtor puts us in line with the majority of the courts of appeals in Texas. See Heckert v. Heckert, No. 02-16-00213-CV, 2017 WL 5184840, at *4 n.4 (Tex. App.—Fort Worth Nov. 9, 2017, no pet.); Mata v. Ellis, No. 11-14-00207-CV, 2016 WL 4386187, at *1 (Tex. App.—Eastland Aug. 11, 2016, no pet.); Hanif v. Clarksville Oil & Gas Co., No. 06-09-00110-CV, 2010 WL 2105936, at *5 n.7 (Tex. App.—Texarkana May 27, 2010, no pet.); Pillitteri v. Brown, 165 S.W.3d 715, 722 (Tex. App.—Dallas 2004, no pet.); Gary Pools, Inc. v. McCaffety, No. 03-01-00446-CV, 2002 WL 1070890, at *2 (Tex. App.—Austin May 31, 2002, no pet.); Leibman v. Grand, 981 S.W.2d 426, 433 (Tex. App.—El Paso 1998, no pet.).

It sets us apart from our sister court, however, which has twice implicitly placed the burden on the judgment creditor. See Tanner v. McCarthy, 274 S.W.3d 311, 323 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (reversing turnover order because no evidence property was non-exempt); see also Guerinot v. Wetherell, No. 01-12-00194-CV, 2013 WL 2456741, at *6 (Tex. App.—Houston [1st Dist.] June 6, 2013, no pet.) (vacating turnover order because of “the absence of evidence to indicate that the Guerinots owned any nonexempt property”).⁴ Other courts have held similarly. See Vaccaro v. Raymond James & Assocs., Inc., 655 S.W.3d 485, 489 (Tex. App.—Fort Worth 2022, no pet.); Clayton v. Wisener, 169 S.W.3d 682, 684 (Tex. App.—Tyler 2005, no pet.); Sloan v. Douglass, 713 S.W.2d 436, 441 (Tex. App.—Fort Worth 1986, writ ref'd n.r.e.); see also 5 Roy W. McDonald & Elaine A Grafton Carlson, McDonald & Carlson Texas Civil Practice § 31:65 (“The creditor must demonstrate that the property sought to be turned over ‘is not exempt from attachment, execution, or seizure for the satisfaction of liabilities.’ ”). Nonetheless, our precedent controls, and our precedent places the burden of proof on the debtor.

But I can see the argument for placing the burden on the creditor if we were writing on a clean slate. The statute doesn't squarely address this issue but, if anything, it leans toward the creditor—who is “entitled to aid from a court ․ if the judgment debtor owns property ․ that is not exempt ․” See Tex. Civ. Prac. & Rem. Code § 31.002(a). Under the statute's plain text, the debtor's ownership of nonexempt property is a mandatory condition because “only one option exists to satisfy the condition”—the property's nonexempt status. See Regal Fin. Co.. v. Tex Star Motors, Inc., 355 S.W.3d 595, 600 (Tex. 2010). So, we can read the statute as saying that a creditor can get a turnover order “only if” the debtor owns nonexempt property. See id. “Conversely then,” the creditor “may not receive aid from the court” if the debtor does not own nonexempt property. Guerinot, 2013 WL 2456741, at *4. The bottom line: if the debtor's property is exempt, the creditor loses. By my estimation, that means the burden should be on the creditor.

And that is in line with the general rule that the party who is “seeking a change in the status quo” bears the burden. Matter of Approximately $80,600.00, 537 S.W.3d 207, 211 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (citing Pace Corp. v. Jackson, 284 S.W.2d 340, 350 (1955)). In post judgment proceedings, the creditor is the one seeking a change, as acknowledged by both section 31.002(a) itself (a judgment creditor is “entitled to aid from a court ․”) and case law. See, e.g., Ross v. Am. Radiator & Standard Sanitary Corp., 507 S.W.2d 806, 809 (Tex. App.—Dallas 1974, writ ref'd n.r.e.) (“It has long been the rule in Texas that the burden is upon the judgment creditor to prove that execution has been issued on his judgment within the statutory period.”).

I write separately to suggest that the supreme court may want to speak definitively on this issue when given the chance so we can have a consistent statewide rule.

FOOTNOTES

1.   Appellants cite Stephenson v. Leboeuf, a memorandum opinion from this Court, for the proposition that appellees bore the burden to establish appellants' assets were not exempt. No. 14-02-00130-CV, 2003 WL 22097781, *2 (Tex. App.—Houston [14th Dist.] Sept. 11, 2003, no pet.) (mem. op.). While Stephenson undisputedly states that the judgment creditor bears the burden of proof on the exempt status of the judgment debtor's assets, we nonetheless conclude it is non-binding precedent because it relied on non-14th Court of Appeals cases and ignored prior cases from this Court on the subject. See Lozano v. Lozano, 975 S.W.2d 63, 67 (Tex. App.—Houston [14th Dist.] 1998, pet. denied) (party claiming exemption has burden to prove the exemption in turnover context); Roosth v. Roosth, 889 S.W.2d 445, 459 (Tex. App.—Houston [14th Dist.] 1994, writ denied) (same); Rucker v. Rucker, 810 S.W.2d 793, 795–96 (Tex. App.—Houston [14th Dist.] 1991, writ denied) (same). The Supreme Court of Texas has instructed the intermediate courts of appeal that when there are conflicting panel opinions from the same court, a later panel must follow the earlier non-superseded authority. Mitschke v. Borromeo, 645 S.W.3d 251, 258 (Tex. 2022). The Stephenson panel failed to follow this stare decisis principle. The Klinek panel did not, however, because it applied the earlier precedent when it held that the judgment debtor bore the burden to establish that the identified assets were exempt. 672 S.W.3d at 836. We therefore follow Klinek, not Stephenson, in resolving this appeal. Mitschke, 645 S.W.3d at 258.

1.   See also, e.g., Marrs v. Marrs, 401 S.W.3d 122, 124 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (“As a general rule, the party asserting an exemption bears the burden of establishing entitlement to the exemption.”); Roosth v. Roosth, 889 S.W.2d 445, 459 n.4 (Tex. App.—Houston [14th Dist.] 1994, writ denied) (“[W]e believe the better interpretation is to hold the debtor responsible for proving that his or her property is exempt from execution.”); Jacobs v. Adams, 874 S.W.2d 166, 168 (Tex. App.—Houston [14th Dist.] 1994, no writ) (“If a party claims that property is exempt, it is that party's burden to prove that it is exempt.”); Rucker v. Rucker, 810 S.W.2d 793, 795-96 (Tex. App.—Houston [14th Dist.] 1991, writ denied) (“It is the burden of the party claiming the exemption to prove that he is entitled to it.”).

2.   See also, e.g., Bran v. Spectrum MH, LLC, No. 14-22-00479-CV, 2023 WL 5487421, at *8 (Tex. App.—Houston [14th Dist.] Aug. 24, 2023, pet. denied) (“To get turnover relief, the judgment creditor must carry the burden of proving that the judgment debtor owns property that is not exempt ․”); Hamilton Metals, Inc. v. Glob. Metal Servs., Ltd., 597 S.W.3d 870, 878 (Tex. App.—Houston [14th Dist.] 2019, pet. denied) (“To get turnover relief, the judgment creditor must carry the burden of proving that the judgment debtor owns property that is not exempt ․”); Lozano v. Lozano, 975 S.W.2d 63, 67 (Tex. App.—Houston [14th Dist.] 1998, pet. denied) (“By the plain meaning of this provision, evidence that an account is an individual retirement annuity is sufficient to establish that it is exempt unless evidence is presented that the IRA does not qualify for such treatment under the IRC.”).

3.   The party with the burden of proof—whether the debtor or the creditor—lost the turnover issue in about seventy-five percent of cases I've reviewed. For cases where the debtor has the burden of proof and lost, see Great Value Storage, LLC v. Princeton Capital Corp., No. 01-21-00284-CV, 2023 WL 3010773, at *17 (Tex. App.—Houston [1st Dist.] Apr. 20, 2023, no pet.), review granted, opinion vacated (Mar. 8, 2024); Mata v. Ellis, No. 11-14-00207-CV, 2016 WL 4386187, at *1 (Tex. App.—Eastland Aug. 11, 2016, no pet.); Stanley v. Reef Secs., Inc., 314 S.W.3d 659, 667 (Tex. App.—Dallas 2010, no pet.); Hanif v. Clarksville Oil & Gas Co., No. 06-09-00110-CV, 2010 WL 2105936, at *5 n.7 (Tex. App.—Texarkana May 27, 2010, no pet.); Pillitteri v. Brown, 165 S.W.3d 715, 722 (Tex. App.—Dallas 2004, no pet.); Gary Pools, Inc. v. McCaffety, No. 03-01-00446-CV, 2002 WL 1070890, at *2 (Tex. App.—Austin May 31, 2002, no pet.); Leibman v. Grand, 981 S.W.2d 426, 428 (Tex. App.—El Paso 1998, no pet.); Dale v. Fin. Am. Corp., 929 S.W.2d 495, 496 (Tex. App.—Fort Worth 1996, writ denied); Jacobs, 874 S.W.2d at 168; Rucker, 810 S.W.2d at 795. For cases in which the creditor has the burden of proof and lost, see Vaccaro v. Raymond James & Assocs., Inc., 655 S.W.3d 485, 489 (Tex. App.—Fort Worth 2022, no pet.); Guerinot v. Wetherell, No. 01-12-00194-CV, 2013 WL 2456741, at *6 (Tex. App.—Houston [1st Dist.] June 6, 2013, no pet.); Tanner v. McCarthy, 274 S.W.3d 311, 323 (Tex. App.—Houston [1st Dist.] 2008, no pet.); Clayton v. Wisener, 169 S.W.3d 682, 684 (Tex. App.—Tyler 2005, no pet.); Stephenson, 2003 WL 22097781, at *2; Sloan v. Douglass, 713 S.W.2d 436, 441 (Tex. App.—Fort Worth 1986, writ ref'd n.r.e.).

4.   The First Court of Appeals has once explicitly placed the burden on the judgment debtor, but that opinion was vacated after the supreme court determined that the appeal was moot. See Great Value Storage, LLC, 2023 WL 3010773, at *17 (“If a judgment debtor claims that an asset is exempt, it is the debtor's burden to prove the exemption.”).

Chad Bridges Justice