Heckert v. Heckert

CLYDE L. HECKERT, JR. AND CAROLINA FARMER, Appellants v. JULIA TERESA HECKERT, Appellee

No. 02-19-00298-CV

Court of Appeals Second Appellate District of Texas at Fort Worth

May 21, 2020

On Appeal from the 342nd District Court Tarrant County, Texas

Trial Court No. 342-278046-15

Before Sudderth, C.J.; Gabriel and Bassel, JJ.

Memorandum Opinion by Justice Gabriel MEMORANDUM OPINION

Appellants Clyde L. Heckert, Jr. and his wife Carolina Farmer appeal from the trial court's judgment in favor of Clyde's ex-wife, Appellee Julia Teresa Heckert.¹ In two issues, Clyde and Carolina argue that the trial court erred by denying their motion to transfer venue and by ordering the avoidance of certain contributions to Clyde's retirement account. We will affirm the trial court's denial of Clyde and Carolina's motion to transfer venue, but we will reverse the trial court's avoidance of the contributions to Clyde's retirement account.

I. BACKGROUND

In 2014, a jury awarded Teresa $381,342.47 in a personal-injury action she had filed against Clyde.² The judgment from that award remained unsatisfied, and in 2015, Teresa filed the present lawsuit against Clyde and Carolina alleging that Clyde had made certain fraudulent transfers with the intent of hindering, delaying, or defrauding his creditors, including Teresa.³ Among other things, Teresa alleged that Clyde hadfraudulently given Carolina $95,000 in exchange for a fifty percent ownership interest in certain real property owned by Carolina in Denton County (the Denton County Property) and had fraudulently made certain contributions to his retirement account. In her original petition, Teresa sought "an order from the Court awarding her an interest, whether a subrogation interest or otherwise, in the [Denton County Property]." Teresa also filed a notice of lis pendens in the Denton County real property records. The notice referred to the present lawsuit and stated that through the lawsuit, Teresa sought to establish an interest in the Denton County Property.

Clyde and Carolina later filed a motion to transfer venue, arguing that venue was mandatory in Denton County pursuant to the mandatory venue provision pertaining to an interest in land. See Tex. Civ. Prac. & Rem. Code Ann. § 15.011. Teresa amended her petition thirty-one days before the motion to transfer venue was heard by the trial court. In her amended petition, Teresa deleted her request that the trial court award her an interest in the Denton County Property. In her amended petition—which is her live petition—Teresa sought: (1) actual damages; (2) exemplary damages; (3) avoidance of the fraudulent transfers to the extent necessary to satisfy the underlying judgment; (4) an attachment against the assets fraudulently transferred or other property belonging to Clyde and Carolina; (5) an injunction against further disposition by Clyde and Carolina of the assets transferred or other property owned by them; (6) execution of the assets fraudulently transferred; (7) any other relief she may require, including turnover orders and the appointment of a receiver; and(8) costs and attorney's fees. The trial court ultimately denied Clyde and Carolina's motion to transfer venue.⁴

The case proceeded to a bench trial. During the trial, evidence was presented that Clyde had made certain payments to Carolina in or around 2014, including making a payment to her for $95,000 in exchange for an interest in the Denton County Property. Evidence was also presented that between January 2014 and April 2015, Clyde contributed over $64,000 to a 401(k) account he had through his employer and that the account was governed by the Employee Retirement Income Security Act (ERISA). See 29 U.S.C. §§ 1001 et seq. The trial court ultimately signed a judgment awarding Teresa actual damages of $159,990.49 and attorney's fees of $56,154.12. The trial court also ordered the avoidance of transfers to Clyde's 401(k) account in the amount of $64,626.02. The trial court later issued findings of fact and conclusions of law, including a conclusion stating that "Teresa is entitled to void all fraudulent transfers." This appeal followed.

II. CLYDE AND CAROLINA'S MOTION TO TRANSFER VENUE

In their first issue, Clyde and Carolina argue that the trial court erred by denying their motion to transfer venue because venue was purportedly mandatory inDenton County pursuant to Civil Practice and Remedies Code Section 15.011. See Tex. Civ. Prac. & Rem. Code Ann. § 15.011.

A. STANDARD OF REVIEW

We review a trial court's denial of a motion to transfer venue de novo. In re E.P., No. 02-16-00049-CV, 2016 WL 4141041, at *5 (Tex. App.—Fort Worth Aug. 4, 2016, no pet.) (mem. op.); Killeen v. Lighthouse Elec. Contractors, L.P., 248 S.W.3d 343, 347 (Tex. App.—San Antonio 2007, pet. denied). In deciding whether the trial court properly determined venue, we consider the entire record. Tex. Civ. Prac. & Rem. Code Ann. § 15.064(b); Killeen, 248 S.W.3d at 347.

B. THE LAW - SECTION 15.011'S MANDATORY VENUE PROVISION

Section 15.011 is a mandatory venue provision concerning certain actions relating to real property. Tex. Civ. Prac. & Rem. Code Ann. § 15.011. That section provides:

Actions for recovery of real property or an estate or interest in real property, for partition of real property, to remove encumbrances from the title to real property, for recovery of damages to real property, or to quiet title to real property shall be brought in the county in which all or a part of the property is located.

Id.

When determining whether a suit falls within Section 15.011's mandatory venue provision, we consider the "true nature" of the dispute. In re Harding, 563 S.W.3d 366, 370 (Tex. App.—Texarkana 2018, orig. proceeding); In re Kerr, 293 S.W.3d 353, 356 (Tex. App.—Beaumont 2009, orig. proceeding) (per curiam). In determining the"true nature" of a dispute, we examine the pleadings, looking at the facts alleged, the rights asserted, and the relief sought. Kerr, 293 S.W.3d at 356; see Harding, 563 S.W.3d at 371.

A trial court must base its venue determination on the last pleading that was timely filed. In re Hardwick, 426 S.W.3d 151, 157 (Tex. App.—Houston [1st Dist.] 2012, orig. proceeding); see Nabors Loffland Drilling Co. v. Martinez, 894 S.W.2d 70, 73 (Tex. App.—San Antonio 1995, writ denied) (rejecting argument that allowing a plaintiff to amend its petition prior to venue hearing would circumvent venue statutes). A party may freely amend its pleadings at least seven days prior to a hearing on a motion to transfer venue. See In re Fluor Enters., Inc., No. 13-11-00260-CV, 2011 WL 2463004, at *4 (Tex. App.—Corpus Christi-Edinburg June 13, 2011, orig. proceeding) (mem. op.) ("Whalen was clearly entitled to amend his pleadings at least seven days before the hearing on the motion to transfer [venue]."); Watson v. City of Odessa, 893 S.W.2d 197, 200 (Tex. App.—El Paso 1995, writ denied) (holding that amended petition filed seven days before venue hearing was timely and trial court was "bound" to consider it); see also Tex. R. Civ. P. 63.

C. ANALYSIS

Clyde and Carolina spend much of their argument discussing Kerr. 293 S.W.3d at 353. As we will explain, Kerr is distinguishable because that suit involved a dispute over the rightful ownership of an interest in land, unlike Teresa's live petition. In Kerr, an oil and gas operator sued its former president, alleging that he fraudulently locatedoil and gas reserves in Harris County. Id. at 355. The former president later developed those reserves on his own, and the operator filed suit against him in Jefferson County. Id. In its original petition, the operator sought damages and the recovery of existing mineral interests, operating interests, and leasehold interests. Id. at 357-58. Citing Section 15.011, the former president moved to transfer venue to Harris County. Id. at 355. The operator then amended its petition and specifically disclaimed any attempt to recover an interest in land. Id. at 358. The trial court denied the motion to transfer venue, and the former president filed a petition for writ of mandamus. Id. at 356.

The Beaumont Court of Appeals conditionally granted the writ of mandamus. Id. at 360. While noting that a plaintiff has the right to timely amend its pleadings, the court also noted that mandatory venue provisions may not be evaded by merely artful pleading. Id. at 358. The court determined that, despite the disclaimer in the operator's amended petition, the true nature of the dispute was "essentially over the rightful ownership of an interest in land in Harris County"—namely, the operator had to establish an ownership interest in the subject leases in order to obtain damages. Id. at 359-60. The court held that because the "rightful ownership of real property must be decided as a prerequisite to the relief requested, the mandatory venue statute govern[ed]." Id. at 360.

Here, in contrast to Kerr, Teresa's lawsuit was not "essentially over the rightful ownership of an interest in land." Id. at 360. Rather, Teresa's lawsuit was essentially asuit for damages arising from Clyde's purported fraudulent transfers. To prove those damages, Teresa was not required to prove that she had an ownership interest in the Denton County Property; rather, she simply had to prove that Clyde fraudulently transferred money to Carolina. While Teresa's initial pleading sought an ownership interest in the Denton County Property, she timely amended her pleadings thirty-one days before the hearing on the motion to transfer venue. See Hardwick, 426 S.W.3d at 157; Watson, 893 S.W.2d at 200. As amended, Teresa did not seek an ownership interest in the Denton County Property. And while her amended petition did list other remedies like an attachment of the assets transferred or other property belonging to Clyde and Carolina, the appointment of a receiver to take possession of Clyde and Carolina's assets, and execution on the assets transferred, we note that these other remedies simply...