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Calvillo v. Guerra

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

July 13, 2017

DAVID N. CALVILLO, Appellant,
v.
MARIA DE LOS ANGELES GUERRA, Appellee.

         On appeal from the 370th District Court of Hidalgo County, Texas.

          Before Chief Justice Valdez and Justices Benavides and Longoria

          MEMORANDUM OPINION

          NORA L. LONGORIA Justice

         Appellant David N. Calvillo appeals an order that: (1) denied his motion to amend the trial court's judgment; (2) denied his post-judgment application for the appointment of a receiver and for turnover relief; and (3) granted appellee Maria De Los Angeles Guerra's ("Maria") motion to retax costs. We affirm.

          I. Background

          A. The Domit Divorce Case

         Antun Domit ("Antun"), a McAllen-area property developer, filed for divorce from Maria in the 370th District Court of Hidalgo County in 2006. During the course of the case, Maria asked the trial court to appoint a receiver to take charge of the parties' numerous properties and business entities. See Tex. Fam. Code Ann. § 6.502(a)(5) (West, Westlaw through Ch. 49, 2017 R.S.). The trial court granted the motion and appointed appellant as the receiver on November 18, 2008.

         On August 26, 2009, the trial court entered an agreed order regarding the receiver's compensation. The order directed appellant to "prepare periodic statements of services rendered and time and expenses expended during the course of the receivership. Those periodic statements shall NOT be filed with the Court but will be made available to the parties in the litigation." If none of the parties objected within ten days of receipt, appellant "was authorized to pay the invoice." It is unclear how many invoices were submitted or approved through this process but, on June 7, 2013, appellant submitted an invoice to the parties for $289, 112.46 for fees incurred since November 30, 2012. Neither party objected within ten days of receipt, but appellant apparently did not pay the invoice to himself.

         The trial court signed a final decree of divorce in December 2013. The decree expressly discharged appellant as receiver, terminated the receivership, and provided that "[t]he costs of the receivership are to be borne 75% by Petitioner Antun and 25% by Respondent [Maria], " but did not award a specific amount of fees.

         Appellant thereafter timely filed his "Amended Motion for Entry of Supplemental Judgment or Alternatively, Motion to Amend Judgment, and Motion for Issuance of Post Judgment Writs." Appellant informed the trial court in this motion that he was owed the $289, 112.46 in fees from his invoice of June 7, 2013 and that he had incurred additional fees after that date which he had not billed. In addition, appellant informed the trial court that he had hired the law firm of Cox and Smith to represent the marital estate's interests in an involuntary bankruptcy proceeding at the cost of $145, 000 in attorneys' fees. According to appellant's motion, the total of the fees incurred by him and Cox and Smith was $432, 112.46.[1] Appellant requested in his motion that the trial court either amend the decree of divorce "to provide for a judgment in favor of Receiver for the full amount of $432, 112.46 as against the parties and the business entities subject to the Receivership" or enter a supplemental judgment to that effect. The trial court took no action on appellant's motion.

         Antun appealed the decree of divorce to this Court, but appellant did not file his own notice of appeal. Cf. Wiley v. Sclafani, 943 S.W.2d 107, 110 (Tex. App.-Houston [1st Dist.] 1997, no writ) (holding that a receiver had standing to appeal the trial court's award of his fees in a final judgment).

         While Antun's appeal was pending in this Court, appellant submitted his fees to the district clerk. The fee amounts in his submission were slightly higher than in his motion to the trial court: the same $289, 112.46 in fees for appellant but $160, 959.94 in attorneys' fees for Cox and Smith. After subtracting a $2, 231 credit, the total amount of fees was $450, 072.40. The district clerk included these fee amounts in the bill of costs as receivership fees and prepared a Civil Fee Docket and Fee Book including these figures.

         This Court subsequently rejected Antun's appeal and affirmed the decree of divorce. Domit v. Domit, No. 13-14-00001-CV, 2014 WL 5500475, at *1 (Tex. App.- Corpus Christi Oct. 30, 2014, no pet.) (mem. op.).

         B. ...


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