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Byrom v. Penn

Court of Appeals of Texas, Twelfth District, Tyler

May 31, 2019

JERRY BYROM, DIMPLE BYROM, AND DOROTHY BERRY, APPELLANTS
v.
JILL CAMPBELL PENN, IN HER CAPACITY AS COURT APPOINTED RECEIVER, APPELLEE

          Appeal from the 4th District Court of Rusk County, Texas (Tr.Ct.No. 2016-072)

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          Brian Hoyle, Justice.

         In this protracted struggle for possession and control of certain property, Jerry Byrom, Dimple Byrom, and Dorothy Berry appeal from an injunction and order of eviction and an order approving a contract and sale, denying an easement, and enforcing the prior injunction order rendered in favor of Jill Campbell Penn, in her capacity as court appointed receiver of the property at issue. In two issues, Appellants contend the receiver lacked authorization for the relief she obtained in the 4th District Court of Rusk County and allege that certain prior orders of the County Court of Cherokee County are void because that court did not affirmatively adjudicate the homestead status of the real property. We affirm.

         Background

         In 2005, Jerry Byrom was appointed executor of his mother's estate by the Cherokee County court, and later, he was removed due to gross mismanagement, misappropriation of funds, and gross misconduct.[1] After finding that Byrom breached his fiduciary duty to the estate by using estate funds to build a house, the court imposed a constructive trust on the home, and, when Byrom failed to deposit the required funds into the court's registry, the court ordered the home to be sold.[2]

         In 2012, the court appointed Penn receiver, and she filed a petition to partition the property in Rusk County where the property is located.[3] The district court of Rusk County authorized Penn to sell the property. In March 2018, the trial court granted Penn's application for a permanent injunction enjoining Appellants from interfering with the sale of the property or destroying the property. The court further ordered Appellants to vacate the property. In August 2018, the trial court approved the contract and sale of the property, denied an easement requested by Appellants, and granted Penn's motion to enforce the prior injunction order. This appeal followed.

         Authority of Receiver

         In their first issue, Appellants assert that Penn acted beyond her authority in seeking and obtaining orders of injunction, eviction, and denial of their requested easement. They contend that because Penn was not authorized to seek the relief sought, the Rusk County trial court lacked jurisdiction to render its March 7, 2018, permanent injunction and order on eviction and its August 14, 2018, order approving the contract and sale, denying the easement, and enforcing the prior injunction order.

         Applicable Law

         A receiver has only that authority conferred by the court's order appointing him, and the order must comply with the statute authorizing the appointment. Ex parte Hodges, 625 S.W.2d 304, 306 (Tex. 1981). Subject to the control of the court, a receiver may (1) take charge and keep possession of the property; (2) receive rents; (3) collect and compromise demands; (4) make transfers; and (5) perform other acts in regard to the property as authorized by the court. Tex. Civ. Prac. & Rem. Code Ann. § 64.031 (West 2008). Once a receiver is appointed, the property is in custodia legis, or in the custody of the court. Tex. Am. Bank/West Side v. Haven, 728 S.W.2d 102, 104 (Tex. App.-Fort Worth 1987, writ denied). By virtue of an order of appointment a receiver becomes invested with full right to the possession and control of the property. Sligh v. Stanley, 204 S.W. 700, 701 (Tex. Civ. App.-Fort Worth 1918, no writ). The receiver must protect her possession of the property as long as the order requiring her to hold it remains in force. Haven, 728 S.W.2d at 104. In case of any interference, the receiver must bring the matter to the attention of the court. Id. The court may then enjoin any interference with the property in the receiver's hands. Id.

         Analysis

         Appellants argue that Penn was not authorized to do anything more than take possession of the property, file for partition, oversee the listing and sale of the property, and make disbursements of the proceeds from the sale. We disagree.

         The Cherokee County court rendered orders on September 4, 2012, and May 13, 2013, appointing Penn receiver and ordering that she "is authorized, subject to control of this court, to do any and all acts necessary" to the proper and lawful conduct of the receivership. As receiver, Penn has full ...


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