Benton Wilcoxon v. Sparkie Properties LLC

Opinion filed December 31, 2025

In The

Eleventh Court of Appeals
__________

No. 11-23-00292-CV
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BENTON WILCOXON, Appellant
V.
SPARKIE PROPERTIES LLC., Appellee

On Appeal from the 238th District Court
Midland County, Texas
Trial Court Cause No. CV58242

MEMORANDUM OPINION
This is an appeal from the trial court’s order appointing a receiver. In two
issues, Appellant, Benton Wilcoxon, appeals the trial court’s order. We affirm.
Background Facts
In December 2021, Appellee, Sparkie Properties LLC., sued Wilcoxon and
NextMetals, LTD for breach of promissory notes. On September 2, 2022, the trial
court rendered a default judgment against Wilcoxon and NextMetals, awarding
Sparkie in excess of one million dollars for the amounts owed under the promissory
notes plus accrued interest, postjudgment interest, court costs, and attorney’s fees.
Because the judgment remained unpaid, Sparkie filed a motion seeking a
turnover order in November. In its motion, Sparkie sought the turnover of certain
issued and outstanding shares of NEXT-ChemX (a Nevada corporation). Sparkie
alleged that the shares were owned by NEXT-ChemX Corp/TX (a Texas
corporation), which was owned in part by judgment debtors Wilcoxon and
NextMetals.
The trial court signed the first turnover order on December 1, 2022. The trial
court ordered Equity Stock Transfer to turnover and deliver to Sparkie “all of the
stock, certificates, books, records or other property of, or belonging to, or held by”
Wilcoxon and NextMetals in NEXT-ChemX (Nevada), NEXT-ChemX (Texas), or
any other company.
On January 10, 2023, Wilcoxon and NextMetals filed an Ex Parte Motion for
a Temporary Restraining Order requesting that the trial court sign a temporary
restraining order that would “restrain [Sparkie] from executing with respect to the
Order covering the transfer of the stipulated shares in NEXT-CHEMX
CORPORATION (Nevada) to SPARKIE for a period of fourteen (14) days from the
entry of the TRO order requested herein.”
On February 22, 2023, Wilcoxon and NextMetals also filed a Supplement of
Information in Support of Relief Requested, which provided certain documentation
including “[a] Letter from Andro AG confirming liquidation of Nextmetals, LTD
assets which will provide necessary funds to settle this matter and pay the judgment
ordered.” On the same day, Wilcoxon and NextMetals filed a Motion to Withdraw
Pleadings, in which they asked the trial court to “order that the listed pleadings be
withdrawn, and to proceed to adjudicate the merits of the bill of review” that was
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filed in a separate cause number. The pleadings that Wilcoxon and NextMetals
sought to be withdrawn included the Ex Parte Motion for a Temporary Restraining
Order filed on January 10.
Sparkie sought a second turnover order due to the termination of the stock
transfer agent referenced in the first turnover order. Sparkie’s application for the
second turnover order included, as evidence of the judgment debtors’ nonexempt
property, attached exhibits and explanations of those exhibits.
The trial court signed a second turnover order on June 13, 2023. The second
turnover order contained a finding by the trial court “[t]hat NEXT-ChemX Texas
holds non-exempt property owned by one or more of the Judgment Debtors.” It
ordered NEXT-ChemX (Texas) to turn over nonexempt property owned by
NextMetals, as well as corporate documents and other evidence of ownership of
stock connected to NextMetals and Wilcoxon. The second turnover order also
ordered Wilcoxon, NextMetals, and any third parties in possession of property of
either Wilcoxon or NextMetals to turn over any records related to or evidence of
nonexempt property held by either. 1
With the judgment still unpaid in October 2023, Sparkie moved to depose
Wilcoxon. The trial court granted the motion and ordered the deposition to be taken
within thirty days of October 5, 2023. After being noticed with the deposition,
Wilcoxon filed a Motion to Quash and for Protective Order. He asked the trial court
to “quash the Notice of Deposition” and enter a protective order or “such other and

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The trial court signed a third turnover order in April 2024, after Wilcoxon filed his notice of appeal
in this cause. The third turnover order required the transfer of shares of specific stock to Sparkie. Once
Sparkie received those shares, it moved to sell the shares to satisfy a portion of the judgment. In
August 2024, the trial court signed an order permitting Sparkie to sell the shares and for the proceeds of the
sale of the shares to be released to Sparkie. In our cause number 11-24-00233-CV, NextMetals attempted
to appeal the order for the sale of the shares. We determined that the order was not appealable, and we
dismissed the appeal for want of jurisdiction. See NextMetals Ltd. v. Sparkie Properties, LLC, No. 11-24-
00233-CV, 2024 WL 4457037, at *1–2 (Tex. App.—Eastland Oct. 10, 2024, no pet.) (mem. op).
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further relief that may be awarded at law or in equity.” He stated he would agree to
a deposition taking place “in late November or December.”
In November, Sparkie filed a motion for sanctions as well as a request for the
trial court to appoint a receiver against Wilcoxon and NextMetals. The trial court
signed an order on December 11, 2023, appointing Glenn A. Little, Sparkie’s
manager, as receiver of the estate of Benton Wilcoxon.
Wilcoxon filed a Notice of Appeal on December 20, 2023, that stated that
“Wilcoxon desires to appeal the order appointing receiver as well as any final
judgments in this case.”
Analysis
Wilcoxon raises two issues on appeal. In his first issue, Wilcoxon challenges
the trial court’s turnover orders, asserting the trial court lacked personal jurisdiction
over him and NextMetals to enter the turnover orders. In his second issue, Wilcoxon
contends that the trial court abused its discretion by appointing a receiver without
sufficient proof that the property was owned by him.
We review both a turnover order and an order appointing a receiver under an
abuse-of-discretion standard. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226
(Tex. 1991) (turnover order standard); Moyer v. Moyer, 183 S.W.3d 48, 51 (Tex.
App.—Austin 2005, no pet.) (receivership order standard). A trial court abuses its
discretion if it acts “without reference to any guiding rules and principles, such that
its ruling was arbitrary or unreasonable.” Low v. Henry, 221 S.W.3d 609, 614 (Tex.
2007) (citing Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004)).
Wilcoxen’s Attempt to Challenge the Turnover Orders
“The Texas turnover statute provides judgment creditors with a procedural
device to assist them in satisfying their judgment debts.” Alexander Dubose
Jefferson & Townsend LLP v. Chevron Phillips Chem. Co., L.P., 540 S.W.3d 577,
581 (Tex. 2018) (per curiam), superseded by statute on other grounds as stated in
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Vaccaro v. Raymond James & Assoc., Inc., 655 S.W.3d 485, 489 n.3 (Tex. App.—
Fort Worth 2022, no pet.). When an underlying judgment remains unpaid, the statute
allows a judgment creditor to seek assistance from a court of appropriate jurisdiction
in reaching the judgment debtor’s nonexempt property. Id.; TEX. CIV. PRAC. & REM.
CODE ANN. § 31.002 (West 2020). Pursuant to the statute, a court may order a
judgment debtor to “turn over nonexempt property that is in the debtor’s possession
or is subject to the debtor’s control, together with all documents or records related
to the property, to a designated sheriff or constable for execution.” CIV. PRAC. &
REM. § 31.002(b)(1). Alternatively, a court may “appoint a receiver with the
authority to take possession of the nonexempt property, sell it, and pay the
proceeds to the judgment creditor to the extent required to satisfy the judgment.” Id.
§ 31.002(b)(3).
In his first issue, Wilcoxon challenges the first two turnover orders. He
contends that the trial court lacked personal jurisdiction over him, NextMetals, and
the non-parties referenced in the orders. As set forth below, Wilcoxon cannot
challenge the turnover orders in this appeal. In this regard, the turnover orders were
appealable orders that should have been timely appealed to challenge their
provisions.
Absent a timely filed notice of appeal, this court does not have jurisdiction to
consider the merits of an appeal. Wilkins v. Methodist Health Care Sys., 160 S.W.3d
559, 564 (Tex. 2005). Ordinarily, a notice of appeal must be filed within thirty
days after the judgment or appealable order is signed by the trial court. TEX. R.
APP. P. 26.1.
A turnover order that acts as a mandatory injunction is a final, appealable
judgment. Alexander Dubose, 540 S.W.3d at 586–87 (citing Schultz v. Fifth Judicial
Dist. Court of Appeals at Dallas, 810 S.W.2d 738, 740 (Tex. 1991), abrogated on
other grounds by In re Sheshtawy, 154 S.W.3d 114 (Tex. 2004). A turnover order
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functions as a mandatory injunction if it requires a party to take affirmative action.
See id. at 587 (citing Prodeco Expl., Inc. v. Ware, 684 S.W.2d 199 (Tex. App.—
Houston [1st Dist.] 1984, no writ) (explaining that portions of an order that require
affirmative action are injunctive in nature)); see also Kennedy v. Hudnall, 249
S.W.3d 520 (Tex. App.—Texarkana 2008, no pet.) (declining to view an order as a
mandatory injunction because it did not require the judgment debtor or transferee to
take any affirmative action); Robison v. Watson, No. 04-20-00138-CV, 2021 WL
2117936, at *3 (Tex. App.—San Antonio May 26, 2021, no pet.) (mem. op.)
(concluding turnover orders were in the nature of a mandatory injunction where they
ordered the parties to take some affirmative action).
The first and second turnover orders both function as mandatory injunctions
because they both order Wilcoxon, NextMetals, or third-party holders of their
nonexempt property to turn over such nonexempt property or the documents related
to it. See Alexander Dubose, 540 S.W.3d at 587. Because each turnover order
required affirmative action by a party, they functioned as final, appealable
judgments. 2 Id. Neither turnover order was timely appealed. The trial court signed
the first turnover order on December 2, 2022, and the second turnover order on
June 13, 2023. Wilcoxon did not file his Notice of Appeal until December 20, 2023,
over a year after the first turnover order and 190 days after the second turnover order.
The receivership order of December 11, 2023, is the only order Wilcoxon timely
appealed from. See TEX. R. APP. P. 26.1.
Because Wilcoxon did not timely appeal either turnover order, we do not have
jurisdiction to review the turnover orders. See Wilkins, 160 S.W.3d at 564. Thus,
we do not consider Wilcoxon’s challenges to the turnover orders.

We also concluded in NextMetals that the trial court’s turnover orders were appealable orders.
2

2024 WL 4457037, at *2.
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Further, Wilcoxon cannot prevail on the personal jurisdictional challenges he
raises in his first issue. Wilcoxon contends that the trial court lacked personal
jurisdiction over NextMetals because NextMetals was not properly served as a
foreign corporation. See In re E.R., 385 S.W.3d 552, 566 (Tex. 2012) (A complete
failure of service deprives a trial court of personal jurisdiction.). Wilcoxon also
contends that the trial court did not have jurisdiction over NEXT-ChemX (Nevada)
and NEXT-ChemX (Texas). However, NextMetals, NEXT-ChemX, and NEXT-
ChemX are not parties to this appeal, and Wilcoxon lacks standing to assert appellate
claims on their behalf.
To alter a judgment, a party must file a notice of appeal, and without filing a
notice, one is not a party to an appeal. See TEX. R. APP. P. 25.1(c); Brumfield v.
Williamson, 634 S.W.3d 170, 192 (Tex. App.—Houston [1st Dist.] 2021, pet.
denied). Wilcoxon is the only party that has filed a notice of appeal in this cause.
“Texas courts have long held that an appealing party may not complain of errors that
do not injuriously affect it or that merely affect the rights of others.” Torrington
Co. v. Stutzman, 46 S.W.3d 829, 843 (Tex. 2000). “Generally, a party lacks standing
to assert a due process violation based on improper service of another party.” In re
Guardianship of V.A., 390 S.W.3d 414, 418 (Tex. App.—San Antonio 2012, pet.
denied); see Sw. Const. Receivables, Ltd. v. Regions Bank, 162 S.W.3d 859, 864
(Tex. App.—Texarkana 2005, pet. denied) (“Generally, only the entity that has not
been properly served has standing to challenge the lack of due process.”).
Wilcoxon complains of injuries affecting others. See Torrington, 46 S.W.3d
at 843. He has no standing to bring personal jurisdictional challenges on behalf of
NextMetals, NEXT-ChemX (Nevada), or NEXT-ChemX (Texas). Therefore, we
cannot consider those claims. Further, NextMetals, though a party below, did not
bring an appeal here. See TEX. R. APP. P. 25.1(c).

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Wilcoxon also asserts that the trial court lacked personal jurisdiction over him
because he was never properly served with process. We do not address whether
Wilcoxon was properly served because he waived personal jurisdiction by entering
a general appearance.
“Whether a court has personal jurisdiction over a nonresident defendant is a
question of law, which we review de novo.” Zinc Nacional, S.A. v. Bouché Trucking,
Inc., 308 S.W.3d 395, 397 (Tex. 2010) (citing BMC Software Belgium, N.V. v.
Marchand, 83 S.W.3d 789, 794 (Tex.2002)). Personal jurisdiction, unlike subject
matter jurisdiction, may be waived by a defendant. See Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 472 n.14 (1985). Rule 120a of the Texas Rules of Civil
Procedure allows a nonresident defendant to enter a special appearance to challenge
personal jurisdiction in a Texas court without waiving the objection. TEX. R.
CIV. P. 120a. Under the rule, a special appearance “shall be made by sworn motion
filed prior to motion to transfer venue or any other plea, pleading or motion.” Id.
The rule requires that a specially appearing defendant “timely request a hearing,
specifically bring that request to the trial court’s attention, and secure a ruling on the
preliminary question of personal jurisdiction.” Milacron Inc. v. Performance Rail
Tie, L.P., 262 S.W.3d 872, 875–76 (Tex. App.—Texarkana 2008, no pet.).
Strict compliance with the rule is required, and a nonresident defendant will
be subject to personal jurisdiction if he enters a general appearance instead.
Arnold v. Price, 365 S.W.3d 455, 458 (Tex. App.—Fort Worth 2011, no pet.) (citing
Morris v. Morris, 894 S.W.2d 859, 862 (Tex. App.—Fort Worth 1995, no writ));
Klingenschmitt v. Weinstein, 342 S.W.3d 131, 133 (Tex. App.—Dallas 2011, no
pet.). Rule 120a provides that “[e]very appearance, prior to judgment, not in
compliance with this rule is a general appearance.” TEX. R. CIV. P. 120a(1). A party
enters a general appearance when he (1) invokes the judgment of the court on a
question other than the court’s jurisdiction, (2) recognizes by his acts that an action
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is properly pending, or (3) seeks affirmative action from the court. Exito Elecs. Co.,
Ltd. v. Trejo, 142 S.W.3d 302, 304 (Tex. 2004) (citing Dawson–Austin v. Austin,
968 S.W.2d 319, 322 (Tex. 1998)). Ultimately, a party enters a general appearance
by seeking affirmative relief inconsistent with an assertion that the trial court lacks
jurisdiction. Dawson–Austin, 968 S.W.2d at 323.
Here, Wilcoxon did not file a special appearance, nor anything that could be
construed as a special appearance. See Arnold, 365 S.W.3d at 458. Instead,
Wilcoxon repeatedly filed pleadings that constituted general appearances. In his Ex
Parte Motion for a Temporary Restraining Order, he sought affirmative relief from
the trial court by asking the court to prevent the transfer of shares. See Trejo, 142
S.W.3d at 304. In his Supplement of Information in Support of Relief Requested,
he included a letter offering proof of assets which would “provide necessary funds
to settle this matter and pay the judgment ordered.” This language recognizes the
trial court’s personal jurisdiction over him, rather than contesting it. See id. (a party
enters a general appearance when he recognizes by his acts an action is properly
pending). Further, in his Motion to Withdraw Pleadings, he moved the trial court to
withdraw his pleadings and sought to proceed with the merits of a separate bill of
review, again seeking affirmative relief from the trial court. Id. Finally, in his
Motion to Quash and for Protective Order, he sought affirmative relief by asking the
trial court to quash the notice of deposition, and by doing so recognized the pending
action by agreeing to sit for a deposition in November or December. Id.
Wilcoxon waived any lack of personal jurisdiction in the trial court by
entering general appearances. Accordingly, we overrule Wilcoxon’s first issue.
Wilcoxen’s Challenge to the Receivership Order
In his second issue, Wilcoxon contends that the trial court abused its discretion
by appointing a receiver without sufficient proof that the property was owned by
him. In making this challenge, Wilcoxon references the specific shares that are
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described by the two turnover orders, and he complains that Sparkie made no
showing that Wilcoxon owned the shares referenced in the turnover orders.
However, the receivership order is the only order Wilcoxon timely appealed from,
and it does not reference the specific shares. See CIV. PRAC. & REM. § 31.002(h)
(“A court may enter or enforce an order under [Section 31.002] that requires the
turnover of nonexempt property without identifying in the order the specific property
subject to turnover.”). Because Wilcoxon did not appeal the turnover orders that
reference the specific property, we do not address whether the trial court abused its
discretion in ordering the turnover of that property. See Wilkins, 160 S.W.3d at 564.
Accordingly, we overrule Wilcoxon’s second issue.
This Court’s Ruling
We affirm the order of the trial court.

JOHN M. BAILEY
CHIEF JUSTICE

December 31, 2025

Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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