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Logsdon v. Logsdon

Court of Appeals of Texas, Second District, Fort Worth

February 16, 2017



          PANEL: GABRIEL and KERR, JJ.; and KERRY FITZGERALD (Senior Justice, Retired, Sitting by Assignment).


          PER CURIAM.

         Appellant Deborah Logsdon appeals from the trial court's summary judgment granted in favor of appellee Mark E. Logsdon. Because we conclude the trial court did not err, we affirm the trial court's judgment. See Tex. R. App. P. 43.2(a).

         I. BACKGROUND

         A. Divorce and Liquidation of Assets by Auction

         Deborah and Mark married in 1984 and jointly operated a business, Champion Sweeping. In 2010, the couple separated, and Deborah filed for divorce on February 10, 2012. When Deborah filed for divorce, their son was 22 and their daughter was 15. As described by Mark, "[t]o say the Logsdon's divorce was contentious would be a monumental understatement." The family court appointed a receiver "to take charge and possession" of their assets, including Champion Sweeping, based on Deborah and Mark's voluntary agreement to the appointment.

         The family court heard the divorce action on October 21 and 22, 2013. During the trial, the family court heard evidence that Deborah began depleting Champion's assets in January 2012 by transferring business funds into her and their son's bank accounts. At the conclusion of the trial, the family court orally recognized that although Deborah had "engaged in fraud" on the community, the fraud was not an independent action but "a property division consideration." The family court also stated, "The divorce is granted today."

         Three days later on October 25, 2013, Mark filed a certificate of assumed name, forming a new company-New Mark Property Services (NMPS). On November 4, 2013, the family court entered a written rendition of judgment, reflecting its property division and ordering "all assets" of Champion to be liquidated. In the rendition, the family court found that Deborah had committed actual fraud against the community estate and awarded Mark 75% and Deborah 25% of the net proceeds from the liquidation of Champion. On February 3, 2014, the family court signed a final divorce decree, which reflected the property division that had been provided in the written rendition and ordered the receiver to liquidate much of the community estate, including Champion. On May 14, 2014, Mark filed an assumed name certificate for Champion, effective as of July 1, 2014, and listed himself as the owner.

         In June or July 2014, the receiver auctioned the assets of Champion, with the exception of its name, good will, and customer list. The net proceeds of the auction totaled $333, 986.86. Mark bought some of the assets at the auction.[2]This court affirmed the property division as ordered by the trial court even though Mark had been given a larger portion of the community estate based on Deborah's fraud on the community. Logsdon v. Logsdon, No. 02-14-00045-CV, 2015 WL 7690034, at *5-7, *8-10 (Tex. App.-Fort Worth Nov. 25, 2015, no pet.) (mem. op.).

         B. Post-Divorce Litigation

         At some point in early 2015, Deborah filed suit against the receiver for breach of fiduciary duty, fraud, negligence, and gross negligence. She argued that the receiver's failure to sell the business as a whole, including its name, good will, and customer list, allowed Mark to use all of Champion's assets for the benefit of NMPS. She later added Mark as a defendant and raised claims for fraud, negligence, and gross negligence against him. Deborah's claims against Mark centered on his formation of NMPS before the divorce decree was signed and his use of Champion assets in his new business both before and after the 2014 auction.

         On June 25, 2015, the trial court granted the receiver's motion for summary judgment on Deborah's claims against him and severed those claims from those brought against Mark. We affirmed the trial court's summary judgment in favor of the receiver based on the receiver's derived judicial immunity from liability. Logsdon v. Owens, No. 02-15-00254-CV, 2016 WL 3197953, at *5 (Tex. App.-Fort Worth June 9, 2016, no pet.) (mem. op.).

         On September 21, 2015, Mark filed a traditional and no-evidence motion for summary judgment, supported by summary-judgment evidence, directed to Deborah's claims raised against him and on his affirmative defenses of res judicata and collateral estoppel. See Tex. R. Civ. P. 166a(b)-(c), (i). Deborah responded to Mark's motion and proffered additional summary-judgment evidence. On December 8, 2015, ten days before the scheduled hearing on Mark's motion, Deborah amended her petition (the amended petition) to drop the claims against the receiver and to add claims against Mark for (1) a declaration of the community-property character of NMPS, (2) an accounting, (3) conversion, (4) violations of the Theft Liability Act, (5) unjust enrichment, and (6) knowing participation in the receiver's breach of fiduciary duty. She further requested a partition and a constructive trust. These claims were based on Mark's formation of NMPS and use of Champion's unsold name and good will.[3] All of these actions occurred after the family court had orally granted the divorce on October 22, 2013.

         On December 15, 2015, three days before the hearing, Deborah filed a supplemental petition against Mark (the supplemental petition), raising the same claims as those raised in the amended petition but clarifying that she sought "to recover all such actual damages from [Mark], " not the receiver. The trial court held a hearing on Mark's motion on December 18, 2015, and took the motion under advisement. On February 5, 2016, the trial court granted Mark's traditional and no-evidence motion in ...

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