Clifford Fischer
Gail Corder Fischer
The Business Court has granted the Rule 91a motion of a court-assigned receiver who allegedly committed dishonest and fraudulent acts in conducting the sale of community property under a divorce decree on the basis of judicial immunity. Two entities created by the receiver to facilitate the sale, however, did not get off the hook at the pleading stage of the litigation.
Gail Corder Fischer, Individually and derivatively on behalf of Clifford Fischer & Company LLC, successor-by-conversion of Clifford Fischer & Company, Inc. v. Clifford R. Fischer, Clifford R. Fischer & Company, LLC, successor-by-conversion of Clifford Fischer & Company, Inc.; Fischer Seller, LP; Michael Newmand; Ted Uzelac; Jeff Kernochan; Chris Joyner; Fischer Purchaser Holdings, LP; Cresa, LLC; Cresa Holdings II, Inc.; James D. Carreker; Andrea Weiss; Ivan T. Hofmann III; and Alejandria Gamino (2026 Tex. Bus. 54; July 29, 2026) arose from a post-divorce dispute over the disposition of business interests. Gail and Clifford divorced in 2019. Part of the community property included Clifford Fischer & Company and related entities. The court ordered the companies sold and the interests and distributions be divided equally between the parties. It appointed Newman as receiver, to which Gail objected. While her objection was pending in the Dallas Court of Appeals, Newman sold the properties.
Subsequently, the Dallas Court of Appeals reversed the district court and vacated the receivership order. Gail filed suit in Denton County against the Receiver parties and 11 other defendants, alleging that the sale materially undervalued the company and her equity interest, paid improper insider bonuses, misallocated residual revenues to Clifford, utilized rollover equity instead of cash consideration, denied Plaintiff her 50% share of excluded revenue streams, and disclosed the company’s trade secrets. She alleged breach of fiduciary duty and self-dealing claims against Newman, unjust enrichment/constructive trust, accounting, civil conspiracy (Newman only), disgorgement of sale proceeds, fraud (Newman only), equitable monetary relief/value substitution (Fischer purchaser only), disgorgement of profits and unjust enrichment (Fischer purchaser only), and misappropriation of trade secrets (Newman and Fischer purchaser only). The case was removed to the Business Court. The Receiver parties moved to dismiss all claims against them under Rule 91a based on derived judicial immunity.
In an opinion by Judge Stagner, the court granted the motion in part and denied it in part. First, the court considered whether derived judicial immunity applied to the Receiver parties. Generally, court-appointed receivers executing court orders receive judicial immunity, regardless of how dishonest or fraudulent their actions might be as long as those actions are related to the court-delegated function. As to Newman, Plaintiff’s petition explicitly tied his conduct to his court-appointed role as a receiver. Consequently, he was entitled to immunity. He structured the sale, allocated consideration, approved bonuses, addressed revenue streams, shared information with prospective buyers, negotiated releases, and performed other duties related to the disposition of the community property. Additionally, the Dallas Court of Appeals’ vacatur of the trial court’s receivership order did not retroactively defeat Newman’s immunity. Here the court of appeals vacated the order “because it exceeded the District Court’s authority under Section 9.0007 of the Family Code—not because the District Court lacked subject-matter jurisdiction over post-divorce enforcement proceedings generally.” The court thus dismissed all claims against Newman with prejudice.
The same was not the case with regard to the Fischer seller and Fischer purchaser, who likewise sought Rule 91a dismissal. The court observed that “[w]hen a defendant moves for a Rule 91a dismissal based on an affirmative defense, the court’s factual inquiry is restricted to the plaintiff’s pleading.” This means that “the petition’s own factual allegations [must] conclusively establish every element of the defense.” Here the petition didn’t allege that the Fischer seller and Fischer purchaser acted in a receivership capacity or had anything in particular to do with Newman. The Receiver parties argued that Newman created both entities and served as their general partner solely in his capacity as receiver, but since the petition itself didn’t substantiate any of that, Rule 91a dismissal at this stage of the game was improper. The Receiver parties alternatively argued that Plaintiff’s petition lacked allegations of specific, independent acts by either entity, but the court didn’t bite. Those issues will have to be decided at summary judgment or trial, not Rule 91a. The Receiver parties thus remain in the case.
