Court of Appeals of Texas, Second District, Fort Worth
THE 96TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO.
GABRIEL and KERR, JJ.; and KERRY FITZGERALD (Senior Justice,
Retired, Sitting by Assignment).
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.
Divorce and Liquidation of Assets by Auction
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.
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."
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
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.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.).
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.
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.).
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. All of these actions occurred after the
family court had orally granted the divorce on October 22,
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 ...