Lisa Rodriguez v. Fred Rodriguez, No. 04-07-00252-CV (Tex.App.- San Antonio, Nov. 7, 2007)(Opinion by Justice Speedlin )(trust for child, breach of fiduciary duty)(Before Chief Justice López, Justices Marion and Speedlin)
Appeal from 407th District Court of Bexar County
From the 407th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CI-11632
Honorable Joe Frazier Brown, Jr., Judge Presiding
Opinion by: Phylis J. Speedlin, Justice
Sitting: Alma L. López, Chief Justice
Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: November 7, 2007
Dispostion: Affirmed in part, reformed in part
Lisa Rodriguez appeals the trial court's judgment on a motion for contempt arguing that the evidence is factually insufficient to support the court's findings that she breached her fiduciary duty as constructive trustee for her minor child and must repay certain sums to the child's trust. She further asserts the trial court erred in denying her motion for new trial. We affirm the trial court's judgment, but reform that portion of the judgment extending the maturity date of the trust to provide that the trust shall terminate when the child reaches the age of eighteen years and one day.
Factual and Procedural Background
An agreed final divorce decree dissolving the marriage between Lisa and Fred Rodriguez was entered on May 4, 2004. (1) As part of the division of the marital estate, the decree contained a provision requiring Lisa to pay Fred $27,050 by cash, cashier's check, or money order on July 3, 2004. It was undisputed that Lisa tendered Fred a check for $22,263 in July 2004, leaving a balance of $4,787 for which Fred later obtained a judgment against Lisa. The divorce decree additionally provided that, with respect to the parties' duplex located at 354 and 356 East Craig, Lisa was to pay the mortgage and related expenses, refinance the mortgage within 60 days, releasing Fred from any liability, and "execute a trust instrument and any other documents necessary to transfer the ownership of the duplex . . . to LISA M. RODRIGUEZ as trustee for FRED RYAN RODRIGUEZ," the parties' minor child. The decree further provided that the trust would terminate when the child reached the age of 18 years and one day.
In November 2004, Fred filed a motion for enforcement of the decree alleging that Lisa had failed to establish the trust for their son, had failed to pay the mortgage payments and related expenses on the duplex, and had transferred a one-half interest in the duplex to her mother upon the refinancing of the duplex. On February 4, 2005, after a hearing, the trial court found the previous orders regarding the real property to be held in trust for the minor child were vague and unenforceable. The court entered a clarifying order requiring Lisa to establish a separate savings account for her minor son with her designated as trustee, to deposit all income from the duplex into the account, to pay all mortgage payments and expenses related to the duplex out of the account, and to provide Fred with an accounting of the income and expenses twice a year. (2) The order specifically stated that Lisa "is designated as constructive trustee for the minor child FRED RYAN RODRIGUEZ;" at the conclusion of the hearing, the court explained to Lisa that being a trustee "imposes on you a greater duty . . . to make sure that you care for it as a fiduciary; that is, make sure that you manage the property prudently and any other obligations at law."
In April 2006, Fred filed a motion for contempt alleging Lisa had violated the court's February 4, 2005 clarifying order by: (1) failing to set up a separate savings account in trust for their child; (2) depositing the monthly rental proceeds from the duplex into her personal checking account instead of a separate account for their child; (3) failing to provide an adequate accounting of the income and expenses related to the property; (4) obtaining a home equity loan on the duplex in excess of $22,000 which she used for her sole benefit; and (5) selling the duplex that was to be held in trust for their child. Fred requested that Lisa be held in contempt and fined, that a different trustee be appointed for their child, and that he be awarded $5,000 in attorney's fees. (3)
On November 28, 2006, the court held an evidentiary hearing on the motion for contempt; both Fred and Lisa testified. At the conclusion of the hearing, the court declined to hold Lisa in contempt, but found that she had breached her fiduciary duty as constructive trustee for her son because funds were removed from the trust to satisfy Lisa's personal debts with her knowledge. The court ordered Lisa to reimburse the child's trust for the actual damages caused by her breach, a total of $27,055, which was the aggregate amount deducted from the duplex sale proceeds to pay two personal debts owed by Lisa: $22,268 owed to her parents; and $4,787 owed to Fred. The court also ordered Lisa to transfer the additional $29,000 in sale proceeds, being held in a certificate of deposit and separate account, into the child's trust account. Finally, the court removed Lisa as trustee, ordered the child's trust to be set up at a bank, independent of both parents, and awarded Fred $4,500 in attorney's fees for enforcing the trust. A written "Final Judgment and Order on Motion for Contempt" reflecting the court's oral ruling was signed on January 12, 2007; it appointed the trust department of Randolph Brooks Federal Credit Union ("RBFCU") as interim constructive trustee and ordered the child's trust to be established there. In addition, the written judgment contains a provision extending the maturity date of the child's trust to his twenty-fifth birthday. Subsequently, a clarifying order was entered which removed RBFCU as trustee and appointed a third party individual as trustee for the child's trust; all other provisions of the January 12, 2007 judgment remained in effect. Lisa timely appealed.
Analysis
In her first issue, Lisa contends the evidence is factually insufficient to support the trial court's finding that she breached her fiduciary duty as trustee and that she owes $27,055 to her son's trust. In her brief, Lisa makes a convoluted argument that the "missing" trust money was actually paid to Fred under her "misunderstanding of her obligations" and her "good faith effort to comply" with the terms of the "original" divorce decree, and asserts that the trust should recover the funds from Fred, instead of her. (4)
Fred responds on appeal that this argument was not raised in the trial court and is nevertheless contrary to all the evidence in the record; he asserts that Lisa's appeal is frivolous in view of her stipulations and the evidence, and requests that we impose sanctions. While we agree that Lisa's argument on appeal is illogical in view of the evidence presented at the hearing, as well as her own stipulation, we decline to sanction her for bringing a frivolous appeal because we find some merit in her challenge to the extended maturity date of the trust, and thus her appeal is not wholly frivolous. See Tex. R. App. P. 45 (replacing former Rule 84); see also Mid-Continent Cas. Co. v. Safe Tire Disposal Corp., 2 S.W.3d 393, 396-97 (Tex. App.--San Antonio 1999, no pet.).
At the beginning of the contempt hearing, Lisa's attorney stated on the record that Lisa agreed it was "right and fair" that she should pay back the trust for the $22,268 deducted from the sale proceeds to pay her parents' lien on the duplex, as well as the $4,787 deducted from the proceeds to pay Fred's judgment. Later, during her testimony Lisa stipulated that she owes her son's trust the $22,268 that was taken from the sale proceeds for payment of her parents' lien on the duplex; however, she refused to stipulate that she owed the $4,787 to the trust, arguing that Fred received that money and should pay it back to the trust. Given Lisa's stipulation on the record that she owes $22,268 to the trust, we will only address the sufficiency of the evidence to support the court's findings that Lisa breached her fiduciary duty and owes an additional $4,787 to the trust. (5)
At the hearing, Fred testified that several months after Lisa paid him $22,263, he obtained a judgment against Lisa for the $4,787 balance owed on the original $27,050 debt created by the divorce decree. He then filed an abstract of judgment, not intending it to encumber the duplex. Lisa conceded at the contempt hearing that she knew the $4,787 judgment was against her personally, not against her son's trust, and that she knew the title company was going to withhold $4,787 from the duplex sale proceeds thereby causing her son's trust to effectively pay her personal judgment, but she proceeded with the closing of the sale. Fred stated that he received, and retained, a check from the title company in payment of the $4,787 judgment when Lisa sold the duplex. Lisa testified that the duplex was deeded in her name, and that she signed "everything I've ever done with the duplex" in her name, not in her name as trustee for her son. She stated, however, that she made the title company and her real estate agent aware that the duplex was held in trust for her son. On the closing statement for the sale of the duplex, the "seller" is listed as Lisa, with no reference to a trust.
Further, Lisa admitted that after the February 2005 clarifying order was signed, she did not establish a separate savings account for her son with herself designated as trustee. She explained that she did not intend to disregard the court's order, but that her son already had two savings accounts available. Lisa testified that she understood she was the trustee for her son, Ryan, and agreed the judge told her she had a "fiduciary duty" at the time of the clarifying order. Lisa explained that she understood her duty was "to take care of the duplex and look after [her] son's property" and to "safeguard his money," and expressed her belief that she had done so "100%" and had "done nothing wrong." In addition, Lisa stated there was no income from the duplex to deposit in her son's accounts because the duplex was "in the negative." However, she later testified that she deposited "the income that was derived from the duplex" into her personal checking account. Finally, Lisa stated that when the duplex was sold, the title company deposited the proceeds into her checking account but then "that money went directly into an account for Ryan." Lisa stated she opened a savings account for her son at RBFCU after the duplex sale and she "explained to them about the trust;" she stated that she is not designated as a trustee on the RBFCU account, but is "on the account" and "looks over" the funds.
Based on the record before us, we hold that the trial court's finding that Lisa breached her fiduciary duty is not against the great weight and preponderance of the evidence. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (in reviewing a factual sufficiency challenge, appellate court considers and weighs all the evidence in support of and contrary to the judgment, and will set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust). It is clear from the record that the trial court based its finding that Lisa breached her duty on her prior knowledge that a portion of the duplex sale proceeds due to the trust would be deducted in order to satisfy two of Lisa's personal debts: a $22,268 debt to her parents; and a $4,787 debt to Fred. The evidence as to this finding of breach was undisputed. The record evidence is more than factually sufficient to support the court's finding of breach of duty and of the amount owed to the trust. (6) We overrule Lisa's first issue.
In her second issue, Lisa argues the court abused its discretion in denying her motion for new trial because (1) the trust funds were paid to Fred and he should be the person to reimburse the trust, and (2) neither breach of fiduciary duty nor a request for extension of the trust's maturity date were pled in Fred's motion for contempt. We review a trial court's denial of a motion for new trial for an abuse of discretion. Director, State Employees Workers'Comp. Div. v. Evans, 889 S.W.2d 266, 269 (Tex. 1994). We have already rejected Lisa's argument that the evidence shows that Fred, not her, should reimburse the trust. As to her argument that the court erred in denying her motion for new trial because Fred did not specifically plead breach of fiduciary duty in his contempt motion, that ground was not raised in Lisa's motion for new trial; therefore, the trial court could not have abused its discretion in denying her motion for new trial on a ground not raised. Further, Fred's contempt motion was based on allegations that Lisa had breached her duty as trustee in several ways; even though it was not phrased in terms of a "breach of fiduciary duty," the gist of the motion was a request for a finding of contempt and removal of Lisa as trustee of the child's trust based on her misdeeds as trustee. Lisa made no objection to the admission of evidence concerning her duties, actions and omissions as trustee, and never argued that the issue of breach of fiduciary duty was not before the court. Thus, the issue of breach of fiduciary duty was tried by consent. See Tex. R. Civ. P. 67; see also Frazier v. Havens, 102 S.W.3d 406, 411 (Tex. App.--Houston [14th Dist.] 2003, no pet.) (party's unpleaded issue may be deemed tried by consent when evidence on the issue is developed under circumstances indicating that both parties understood the issue was in the case, and other party fails to object).
Finally, Lisa complained in her motion for new trial that the court erred in changing the maturity date of the child's trust from eighteen to twenty-five years of age; the motion for new trial was denied by written order. The record shows that Fred did not request that the trust term be extended in his motion for contempt. Further, at the hearing there was no evidence or argument presented concerning extension of the trust's maturity date, and the court made no finding regarding extension of the trust; therefore, the issue was not tried by consent. See Frazier, 102 S.W.3d at 411. The extended maturity date first appeared in the written judgment signed by the court. It is well established that a judgment must conform to the pleadings, and a judgment rendered without pleadings to support it is fatally defective. Stoner v. Thompson, 578 S.W.2d 679, 682-83 (Tex. 1979); Bilderback v. Priestley, 709 S.W.2d 736, 743 (Tex App.--San Antonio 1986, writ ref'd n.r.e.). Because the record is devoid of any pleadings, evidence or findings to support the court's extension of the trust's maturity date, we reform that portion of the judgment to provide that the trust shall terminate when the child reaches the age of eighteen years and one day, as originally provided in the divorce decree.
Except as reformed, the trial court's judgment is affirmed.
Phylis J. Speedlin, Justice
1. In her appellant's brief, Lisa Rodriguez characterizes the May 4, 2004 final divorce decree as the "second" decree, repeatedly referencing the terms of an "original" or "first" divorce decree in November 2003; however, while a proposed divorce decree containing other terms may have been previously discussed and even agreed to by the parties at one time, the appellate record does not contain a prior divorce decree signed by the trial court. Lisa attached a copy of a divorce decree dated November 13, 2003 that does not contain the trial judge's signature as an appendix to her appellant's brief. We may not consider documents not contained in the appellate record which are attached to a party's brief or appendix. Tex. R. App. P. 34.1; Samara v. Samara, 52 S.W.3d 455, 456 (Tex. App.--Houston [1st Dist.] 2001, pet. denied). In resolving this appeal, therefore, we are only concerned with the final divorce decree signed on May 4, 2004 which appears in the clerk's record. We likewise may not consider the copy of a check attached to the appellant's brief because it is not included in the appellate record.
2. No appeal was taken from the February 4, 2006 order.
3. Fred also requested that the case be forwarded to the district attorney for prosecution for embezzlement of trust funds.
4. Lisa also asserts the divorce decree placed the duplex under a constructive trust for the benefit of her son, with her as trustee, "unbeknownst to her." The record establishes the opposite. The agreed decree reflects Lisa's signature, and Lisa admitted at the contempt hearing that she was familiar with the terms of the divorce decree, and understood that she held the duplex as trustee for her son.
5. We note, however, that the evidence presented at the hearing is more than sufficient to support the court's finding that Lisa owes $22,268 to the trust.
6. Lisa does not argue that she had no fiduciary duty, merely that she did not breach her duty. See S.V. v. R.V., 933 S.W.2d 1, 8 (Tex. 1996) (parents generally stand in the role of fiduciaries toward their minor children).
Sunday, November 11, 2007
Monday, November 5, 2007
Jailed Husband's affidavit of indigence was not too late to justify dismissal of his appeal from divorce decree
In two cases decided Nov. 2, 2007 the Texas Supreme Court cuts poor divorce litigants some slack and reverses the dismissal of their appeals for failure to immediately file the required affidavit of inability to pay costs.
Springer v. Springer, No. 06-0382 (Tex. Nov. 2, 2007)(per curiam)(deadline for appeal fee payment or affidavit of indigence)
MICHAEL DAVID SPRINGER v. LISA FERGASON SPRINGER; from Johnson County; 10th district (10-06-00040-CV, ___ SW3d ___, 03‑22‑06) Also see --> companion case
Michael Springer’s wife filed for divorce while he was incarcerated and Springer sought to appeal the resulting judgment dividing marital property. Springer timely filed a notice of appeal, but did not pay the filing fee or file an affidavit of indigence “with or before” the notice as Texas Rule of Appellate Procedure 20.1(c)(1) requires. One month after filing his notice of appeal, Springer filed an affidavit of indigence. Two months later, the court of appeals notified Springer that his filing fee was past due and his case would be dismissed if the fee was not paid within ten days. Springer did not pay the fee. The court of appeals dismissed Springer’s appeal for failure to pay the fee or file an affidavit of indigence “with or before” the notice of appeal. We hold that the court of appeals erred in dismissing Springer’s appeal.
We recently decided two cases similar to the one presented. In Higgins v. Randall County Sheriff’s Office, the court of appeals dismissed an inmate’s appeal for failure to file an affidavit of indigence “with or before” the notice of appeal, although the affidavit was filed within the ten days the court of appeals’ order allowed to correct the error by paying the fee. 193 S.W.3d 898, 899-900 (Tex. 2006). Similarly, in Hood v. Wal-Mart Stores, Inc., the court of appeals dismissed an appeal when the appellant filed an affidavit of indigence not “with or before” the notice of appeal but within the ten-day period for paying the filing fee. 216 S.W.3d 829, 830 (Tex. 2007). We reversed those dismissals, noting that the affidavit of indigence is no longer a jurisdictional requirement and holding that Rule 44.3 prohibits dismissal for formal defects or irregularities in appellate procedure without first allowing the appellant a reasonable time to correct the error. Id. at 830; Higgins, 193 S.W.3d at 899-900. Thus, failure to file an affidavit of indigence “with or before” a notice of appeal will not support dismissal unless the appellant is given a reasonable time to correct the defect and fails to do so.
In this case, Springer’s notice of appeal was initially defective because it was unaccompanied by the filing fee or an affidavit of indigence as required by Rule 20.1(c)(1). However, Springer corrected the defect by filing his affidavit of indigence shortly thereafter; it was not even necessary for the court of appeals to permit him additional reasonable time to correct the defect. Accordingly, without hearing argument, we grant the petition for review, reverse the court of appeals’ judgment, and remand to that court for further proceedings consistent with this opinion. See Tex. R. App. P. 59.1.
Opinion Delivered: November 2, 2007
Springer v. Springer, No. 06-0382 (Tex. Nov. 2, 2007)(per curiam)(deadline for appeal fee payment or affidavit of indigence)
MICHAEL DAVID SPRINGER v. LISA FERGASON SPRINGER; from Johnson County; 10th district (10-06-00040-CV, ___ SW3d ___, 03‑22‑06) Also see --> companion case
Michael Springer’s wife filed for divorce while he was incarcerated and Springer sought to appeal the resulting judgment dividing marital property. Springer timely filed a notice of appeal, but did not pay the filing fee or file an affidavit of indigence “with or before” the notice as Texas Rule of Appellate Procedure 20.1(c)(1) requires. One month after filing his notice of appeal, Springer filed an affidavit of indigence. Two months later, the court of appeals notified Springer that his filing fee was past due and his case would be dismissed if the fee was not paid within ten days. Springer did not pay the fee. The court of appeals dismissed Springer’s appeal for failure to pay the fee or file an affidavit of indigence “with or before” the notice of appeal. We hold that the court of appeals erred in dismissing Springer’s appeal.
We recently decided two cases similar to the one presented. In Higgins v. Randall County Sheriff’s Office, the court of appeals dismissed an inmate’s appeal for failure to file an affidavit of indigence “with or before” the notice of appeal, although the affidavit was filed within the ten days the court of appeals’ order allowed to correct the error by paying the fee. 193 S.W.3d 898, 899-900 (Tex. 2006). Similarly, in Hood v. Wal-Mart Stores, Inc., the court of appeals dismissed an appeal when the appellant filed an affidavit of indigence not “with or before” the notice of appeal but within the ten-day period for paying the filing fee. 216 S.W.3d 829, 830 (Tex. 2007). We reversed those dismissals, noting that the affidavit of indigence is no longer a jurisdictional requirement and holding that Rule 44.3 prohibits dismissal for formal defects or irregularities in appellate procedure without first allowing the appellant a reasonable time to correct the error. Id. at 830; Higgins, 193 S.W.3d at 899-900. Thus, failure to file an affidavit of indigence “with or before” a notice of appeal will not support dismissal unless the appellant is given a reasonable time to correct the defect and fails to do so.
In this case, Springer’s notice of appeal was initially defective because it was unaccompanied by the filing fee or an affidavit of indigence as required by Rule 20.1(c)(1). However, Springer corrected the defect by filing his affidavit of indigence shortly thereafter; it was not even necessary for the court of appeals to permit him additional reasonable time to correct the defect. Accordingly, without hearing argument, we grant the petition for review, reverse the court of appeals’ judgment, and remand to that court for further proceedings consistent with this opinion. See Tex. R. App. P. 59.1.
Opinion Delivered: November 2, 2007
Texas Supreme Court says mother's appeal should not have been dismissed for failure to file affidavit of indigence together with her notice of appeal
Sprowl v. Payne, No. 06-0533 (Tex. Nov. 2, 2007)(per curiam)(appellate procedure, payment for record, indigence)
Full style of case: LINDA SPROWL AND J.S., A CHILD v. GEORGE MARTIN PAYNE; from Dallas County; 5th district (05-06-00062-CV, ___ SW3d ___, 05‑04‑06)
Respondent's motion to strike and to disregard the appendices granted Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court.
PER CURIAM OPINION
The trial court dismissed Linda Sprowl’s fourth paternity suit against George Payne concerning her daughter, Jennifer, based on res judicata. Sprowl timely filed a notice of appeal, but did not pay to have the record prepared or file an affidavit of indigence “with or before” the notice as Texas Rule of Appellate Procedure 20.1(c)(1) requires. Seven days after filing her notice of appeal, Sprowl filed an affidavit of indigence.
The clerk contested the timeliness of Sprowl’s affidavit, and the trial court sustained that contest. The court of appeals agreed that Sprowl’s affidavit of indigence was untimely because it was not filed “with or before” her notice of appeal, and ordered Sprowl to file proof within ten days that she had paid or made arrangements to pay for the appellate record. When Sprowl failed to do so, the court dismissed her appeal. We hold that the court of appeals erred in dismissing Sprowl’s appeal.
We recently decided two cases similar to the one presented. In Higgins v. Randall County Sheriff’s Office, the court of appeals dismissed an inmate’s appeal for failure to pay the filing fee or file an affidavit of indigence “with or before” the notice of appeal, although the affidavit was filed within the ten days the court of appeals’ order allowed to correct the error by paying the fee. 193 S.W.3d 898, 899-900 (Tex. 2006).
Similarly, in Hood v. Wal-Mart Stores, Inc., the court of appeals dismissed an appeal when the appellant filed an affidavit of indigence not “with or before” the notice of appeal but within the ten-day period for paying the filing fee. 216 S.W.3d 829, 830 (Tex. 2007).
We reversed those dismissals, noting that the affidavit of indigence is no longer a jurisdictional requirement for an appeal and holding that Rule 44.3 prohibits dismissal for formal defects or irregularities in appellate procedure without first allowing the appellant a reasonable time to correct the error. Id. at 830; Higgins, 193 S.W.3d at 899-900. Thus, failure to file an affidavit of indigence “with or before” a notice of appeal will not support dismissal unless the appellant is given a reasonable time to correct the defect and fails to do so.
In this case, Sprowl’s notice of appeal was initially defective because it was unaccompanied by the filing fee or an affidavit of indigence as required by Rule 20.1(c)(1). However, Sprowl corrected the defect by filing her affidavit of indigence shortly thereafter; it was not even necessary for the court of appeals to permit her additional reasonable time to correct the defect. Accordingly, without hearing argument, we grant the petition for review, reverse the court of appeals’ judgment, and remand to that court for further proceedings consistent with this opinion. See Tex. R. App. P. 59.1.
Opinion Delivered: November 2, 2007
Full style of case: LINDA SPROWL AND J.S., A CHILD v. GEORGE MARTIN PAYNE; from Dallas County; 5th district (05-06-00062-CV, ___ SW3d ___, 05‑04‑06)
Respondent's motion to strike and to disregard the appendices granted Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court.
PER CURIAM OPINION
The trial court dismissed Linda Sprowl’s fourth paternity suit against George Payne concerning her daughter, Jennifer, based on res judicata. Sprowl timely filed a notice of appeal, but did not pay to have the record prepared or file an affidavit of indigence “with or before” the notice as Texas Rule of Appellate Procedure 20.1(c)(1) requires. Seven days after filing her notice of appeal, Sprowl filed an affidavit of indigence.
The clerk contested the timeliness of Sprowl’s affidavit, and the trial court sustained that contest. The court of appeals agreed that Sprowl’s affidavit of indigence was untimely because it was not filed “with or before” her notice of appeal, and ordered Sprowl to file proof within ten days that she had paid or made arrangements to pay for the appellate record. When Sprowl failed to do so, the court dismissed her appeal. We hold that the court of appeals erred in dismissing Sprowl’s appeal.
We recently decided two cases similar to the one presented. In Higgins v. Randall County Sheriff’s Office, the court of appeals dismissed an inmate’s appeal for failure to pay the filing fee or file an affidavit of indigence “with or before” the notice of appeal, although the affidavit was filed within the ten days the court of appeals’ order allowed to correct the error by paying the fee. 193 S.W.3d 898, 899-900 (Tex. 2006).
Similarly, in Hood v. Wal-Mart Stores, Inc., the court of appeals dismissed an appeal when the appellant filed an affidavit of indigence not “with or before” the notice of appeal but within the ten-day period for paying the filing fee. 216 S.W.3d 829, 830 (Tex. 2007).
We reversed those dismissals, noting that the affidavit of indigence is no longer a jurisdictional requirement for an appeal and holding that Rule 44.3 prohibits dismissal for formal defects or irregularities in appellate procedure without first allowing the appellant a reasonable time to correct the error. Id. at 830; Higgins, 193 S.W.3d at 899-900. Thus, failure to file an affidavit of indigence “with or before” a notice of appeal will not support dismissal unless the appellant is given a reasonable time to correct the defect and fails to do so.
In this case, Sprowl’s notice of appeal was initially defective because it was unaccompanied by the filing fee or an affidavit of indigence as required by Rule 20.1(c)(1). However, Sprowl corrected the defect by filing her affidavit of indigence shortly thereafter; it was not even necessary for the court of appeals to permit her additional reasonable time to correct the defect. Accordingly, without hearing argument, we grant the petition for review, reverse the court of appeals’ judgment, and remand to that court for further proceedings consistent with this opinion. See Tex. R. App. P. 59.1.
Opinion Delivered: November 2, 2007
Wednesday, October 31, 2007
Recent Texas Appellate Opinions on Family Law Issues
Recent Domestic Relations Cases and Case Law of Interest:
Appellate Family Law Decisions from the Houston Courts of Appeals
Appellate SAPCR opinions from the Austin Court of Appeals
CPS suits and termination of parental rights appeals (Houston)
Texas DFPS termination appeals (Austin) Anders Brief appeals
Appellate Family Law Decisions from the Houston Courts of Appeals
Appellate SAPCR opinions from the Austin Court of Appeals
CPS suits and termination of parental rights appeals (Houston)
Texas DFPS termination appeals (Austin) Anders Brief appeals
Grandparent Custody Affirmed in Divorce Case
Fourteenth Court of Appeals affirms award of managing conservatorship to grandparents despite parental presumption; Houston family trial court heard evidence of domestic violence and pimping and found that legal presumption favoring parents as primary caregivers was rebutted.
Heiskell v. Kendrick, No. 14-06-00972-CV (Tex.App.- Houston [14th Dist.] Oct. 26, 2007)(Hedges)(domestic relations case law, divorce, SAPCR, grandparent intervention)
Disposition: Appointment of grandparents affirmed:
Opinion by Chief Justice Hedges
Full style: Brrian K. Heiskell v. Kennith and Sheri Kendrick
Appeal from 311th Family District Court of Harris County
M E M O R A N D U M O P I N I O N
Brian Heiskell appeals the custody award pursuant to a decree of divorce rendered in the matter of the marriage of Brian Heiskell and Misty Heiskell and in the interest of their minor children. The challenged order appoints the maternal grandparents joint managing conservators of the children. We affirm.
I. BACKGROUND
Brian Heiskell ("Father") and Misty Heiskell ("Mother") were married on March 14, 1998. Two children were born of this marriage on September 14, 1998 and June 18, 2001. The marriage was a turbulent one. Mother made several allegations against Father of verbal and physical abuse during the marriage. Father made similar allegations against Mother and claimed that Mother was promiscuous. Mother and Father separated in October 2003. Upon their separation, Mother and Father voluntarily left the two children in the care of the maternal grandparents, appellees, who reside in Sweetwater. Mother stayed in Houston while Father moved to Harlingen. Thereafter, the children returned to stay with Mother in Houston for approximately eight months. The children have been in the constant care of appellees since November 2004.
Mother filed for divorce in February 2005, requesting that she be appointed sole managing conservator of the children. Father filed his counter-petition two months later and also requested to be appointed sole managing conservator of the children. In December 2005, appellees filed an intervention alleging that appointment of Father and Mother as joint managing conservators would not be in the best interest of the children and requesting appointment as joint managing conservators of the children. Following a bench trial held on May 22, 2006, the district court appointed appellees joint managing conservators and Father and Mother possessory conservators with corresponding periods of possession.
Father presents two issues for review in this appeal. He argues that (1) appellees failed to prove that his appointment as managing conservator would significantly impair the children's physical health or emotional development and (2) appellees failed to satisfy the higher standard of proof required to rebut the parental presumption that appointment of Father as managing conservator is in the best interest of the children. We will address each issue in turn.
II. ANALYSIS
A. Standards of Review
When courts resolve questions regarding conservatorship, the best interest of the child is the primary consideration. Tex. Fam. Code Ann. ' 153.002 (Vernon 2002). Moreover, the trial judge has wide latitude in determining best interest. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). Indeed, we cannot interfere with the trial court's ultimate decision unless we conclude that it abused its discretion. In the Interest of Doe, 917 S.W.2d 139, 141 (Tex. App.CAmarillo 1996, writ denied). Generally, the test for abuse of discretion is whether the trial court acted without reference to any guiding rules and principles or whether the trial court acted arbitrarily and unreasonably. See McDaniel v. Yarbrough, 898 S.W.2d 251, 253 (Tex. 1995). Under an abuse of discretion standard, legal and factual insufficiency are not independent grounds of error, but rather are relevant factors in assessing whether the trial court abused its discretion. In re T.J.L., 97 S.W.3d 257, 266 (Tex. App.-Houston [14th Dist.] 2002, no pet.). There is no abuse of discretion as long as some evidence of a substantive and probative character exists to support the trial court's decision. Id.
In a sufficiency review, appellate courts apply a hybrid analysis because sufficiency of the evidence and abuse of discretion standards of review often overlap in family law cases. See In re D.S., 76 S.W.3d 512, 516 (Tex. App.-Houston [14th Dist.] 2002, no pet). Within this overarching standard, we engage in a two-pronged inquiry to determine whether the trial court (1) had sufficient information on which to exercise its discretion and (2) erred in its application of discretion. Zeifman v. Michels, 212 S.W.3d 582, 588 (Tex. App.CAustin 2006, pet. denied). The traditional sufficiency review comes into play with regard to the first question, and those standards are discussed below. See id. With regard to the second question, we determine whether, based on the elicited evidence, the trial court made a reasonable decision. Id. Thus, we resolve the second question by determining whether the trial court's findings constitute an abuse of discretion. The mere fact that a trial judge may decide a matter within his discretion in a different manner than appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Whitworth v. Whitworth, 222 S.W.3d 616, 623 (Tex. App.-Houston [1st Dist.] 2007, no pet.).
B. Legal and Factual Sufficiency
In appellant's first issue, he argues that the evidence presented at trial is not legally or factually sufficient to support the trial court's decision to appoint appellees joint managing conservators based on its implied finding that Father's appointment would significantly impair the physical health or emotional development of the children. The evidence is legally insufficient only if (1) the record discloses a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998). In determining whether there is legally sufficient evidence to support the trial court's exercise of discretion, we consider evidence and inferences favorable to the finding if a reasonable factfinder could, and disregard evidence contrary to the finding unless a reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); In Re H.C. & S.C., 942 S.W.2d 661, 664 (Tex. App.-San Antonio 1997, no writ). In analyzing a challenge to the factual sufficiency of the evidence, we examine the entire record to determine if the trial court=s finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. See In re C.H., 89 S.W.3d 17, 25 (Tex. 2002); Manon v. Tejas Toyota, Inc., 162 S.W.3d 743, 752-53 (Tex. App.-Houston [14th Dist.] 2005, no pet.).
Next, in analyzing whether to appoint a parent or nonparent as managing conservator, statute requires the court to presume that appointing a biological parent is in the best interest of the child. See Tex. Fam. Code Ann. ' 153.131(a) (Vernon 2001). Consequently, this parental presumption imposes a heavy burden on a non-parent seeking conservatorship. See Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990). It is not adequate to offer evidence that a nonparent would be a better custodian of the child. Id. Still, this parental presumption is rebuttable. For instance, proof that such an appointment would significantly impair the child=s physical health or emotional development negates the parental presumption, as does a finding of a history of family violence involving the parents of a child. See Tex. Fam. Code Ann. '' 153.131(a), 153.131(b),153.004(b) (Vernon 2001).
In the instant case, we must determine whether there was sufficient evidence to support the trial court's implied finding (1) that appointing Father as managing conservator would significantly impair the children's physical health or emotional development or (2) that there exists a history of family violence involving the parents of the children.[1] See id.
1. Impairment to Children's Physical Health or Emotional Development Under Section 153.131
For the court to award managing conservatorship to a nonparent under section 153.131, the nonparent must prove by a preponderance of credible evidence that appointing the parent as a managing conservator would result in serious physical or emotional harm to the child. Whitworth, 222 S.W.3d at 623. There must be evidence to support the logical inference that some specific, identifiable behavior or conduct of the parent will probably cause that harm. Id. In essence, section 153.131 presumes that the best interests of a child is served when a biological parent is appointed managing conservator unless there is evidence that the biological parent has engaged in specific acts that would impair the child's physical health or emotional development.
Father alleges that there is insufficient evidence to support the implied finding that his appointment as managing conservator would impair the children=s physical health or emotional development. Specifically, he argues that the evidence presented at trial was insufficient to rebut the parental presumption under section 153.131. In support of his argument, Father cites excerpts from the testimony at the divorce proceeding to the effect that (1) he was never convicted of a crime involving family violence; (2) he removed himself from a volatile situation with Mother and began counseling to deal with his violent outbursts; (3) he has not been involved in any physical altercation since June 2004; (4) he has maintained health insurance on the children; (5) he has exercised possession and access to the children during the pendency of the divorce; and (6) he has made some child support payments to Mother and appellees. Relying on May v. May, 829 S.W.2d 373, 377-78 (Tex. App.CCorpus Christi 1992, writ denied), Father contends that the material time concerning fitness for child custody is the present, not the past; the fact that the parent would not have been a proper custodian sometime in the past is not controlling.
Though highly disputed by Father, there is evidence that awarding Father managing conservatorship would significantly impair the children=s physical health or emotional development. Specifically, there is evidence that Father physically attacked Mother on a number of occasions, one of which transpired while the daughter was in harm=s way. Father made only sporadic visits to the children following the separation (ten visits over two years and seven months) and has failed to provide adequate financial support for the children.
Additionally, Mother and appellees testified that the son has exhibited violent behavior towards his sister, Mother, and appellees, indicating that such violence was acceptable because ADaddy did it.@ The violent behavior diminished after the child was placed in the care of appellees. There is evidence that Father accepted money from a man in consideration for his wife=s Acompanionship.@[2] See Whitworth, 222 S.W.3d at 623 (stating that an adult=s future conduct may be somewhat determined by recent past conduct.).
An abuse of discretion does not occur as long as some evidence of a substantive and probative character exists to support the trial court=s decision. Id. We find that there is sufficient evidence to support the trial court=s implied finding that appointing Father as managing conservator would significantly impair the children=s physical health or emotional development.
2. Finding of a History of Family Violence Under Sections 153.131(b) and 153.004(b)
A finding of a history of family violence also rebuts the section 153.131 parental presumption that the appointment of a parent as the sole managing conservator of a child or as the conservator who has the exclusive right to determine the primary residence of a child is in the best interest of the child. See Tex. Fam. Code Ann. ' 153.131(b). The presumption is rebutted if sufficient evidence is presented showing a history or pattern of past or present child neglect, or physical abuse by that parent directed against the other parent, a spouse or a child. Tex. Fam. Code Ann. ' 153.004(b).
In the instant case, there is sufficient evidence to support a finding of a history of family violence. See Tex. Fam. Code Ann. ' 71.004 (Vernon 2002) (family violence is an act by a member of a family against another member of the family that is intended to result in physical harm, bodily injury, assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury or assault). There was testimony that Father physically attacked Mother on a number of occasions during the marriage. One such attack led to a thirty-day deferred adjudication of guilt and a magistrate order for emergency protection against Father. At least one of the physical altercations occurred while the daughter was endangered. It is undisputed by Father that he made an oral threat to beat his wife to death. All of these incidents occurred within two years of the divorce action. See Tex. Fam. Code Ann. ' 153.004 (in determining whether to appoint a party a managing conservator, the court shall consider evidence of the intentional use of abusive physical force by a party against the party=s spouse committed within a two-year period preceding the filing of the suit). There is sufficient evidence to support the trial court=s implied finding of a history of family violence to rebut the parental presumption.
Considering the evidence and inferences in favor of the finding, we find the evidence to be legally sufficient to support the trial court=s decision. Additionally, we find that the evidence is not so against the great weight and preponderance of the evidence to be manifestly unjust. We find that (1) there is sufficient evidence that Father=s appointment as managing conservator would significantly impair the children=s physical health or emotional development and (2) there is sufficient evidence to support the court=s implied finding of a history of family violence involving the parents and the children. This evidence negates the parental presumption. Under the applicable standard of review, we find the evidence is legally and factually sufficient to support the trial court=s decision. We overrule Father=s first issue.
C. Best Interest Test
In Father=s second issue, he contends that the trial court abused its discretion in finding that appellees successfully rebutted the presumption that his appointment as managing conservator was in the best interests of the children. Specifically, he argues that appellees failed to meet the Ahigher standard@ of proof required to rebut the parental presumption.
In 1995, the Texas Legislature substantially revised to the Texas Family Code regarding the parental presumption and family violence in custody cases. Father argues that when a non-parent is appointed managing conservator, the court must apply a higher standard to determine the best interests of the child. He attempts to support his contention that the standard "best interests" test is inappropriate in this case based on Brooks v. Brooks, 881 S.W.2d 297, 298 (Tex. 1994). He argues that Brooks imposes a higher level of analysis under section 14.07 in cases awarding custody to a nonparent. We note that section 14.07 was repealed in 1995. Act of May 10, 1991, 72nd Leg., R.S., ch. 161, ' 3, 1991 Tex. Gen. Laws 771, repealed and recodified by Act of April 6, 1995, 74th Leg., R.S., ch. 20, 1995 Tex. Gen. Laws 113. Even under the former section 14.07, the higher standard outlined in Brooks is essentially the current parental presumption under the new section 153.131(a). See Brooks, 881 S.W.2d at 298 (holding that before appointing a non-parent sole conservatorship, there must be proof that "appointment of the parent would significantly impair the child's health or emotional development"). It is undisputed that statute requires primary consideration of the best interest of the child in determining the issues of conservatorship and possession of and access to the child. See Tex. Fam. Code Ann. ' 153.002. There is no authority imposing a different test or higher standard to be applied to a custody case awarding non-parents sole managing conservatorship and biological parents possessory conservatorship. We hold that the trial court did not abuse its discretion in finding that appointment of appellees as managing conservators is in the best interest of the children. We overrule Father's final issue.
We affirm the judgment of the trial court.
/s/ Adele Hedges, Chief Justice
Judgment rendered and Memorandum Opinion filed October 23, 2007.
Panel consists of Chief Justice Hedges and Justices Frost and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] The record does not contain an explicit affirmative finding by the trial court that (1) appointment of Father as managing conservator would significantly impair the children's physical health or emotional development or (2) there exists a history of family violence. We do note, however, that the trial court made an oral finding during the divorce trial that Aall Family Code requirements for the Court to make t[he conservatorship] appointments have been satisfied by the evidence presented in the course of this trial." The final decree of divorce also states "The Court finds that all requirements of the Family Code, necessary to award custody of the children to Intervenors, have been met."
[2] Mother testified at trial that Father "pimped" her out to a Mr. Ward. Mother indicated that Mr. Ward and Father met in person and made an agreement wherein for Mr. Ward's payment of $15,000, Father would allow Mr. Ward to spend time with Mother while Mr. Ward's wife was out of town. Father testified that he took the money from Mr. Ward because it was "easy money," but denied that he entered into such an agreement to prostitute his wife.
Heiskell v. Kendrick, No. 14-06-00972-CV (Tex.App.- Houston [14th Dist.] Oct. 26, 2007)(Hedges)(domestic relations case law, divorce, SAPCR, grandparent intervention)
Disposition: Appointment of grandparents affirmed:
Opinion by Chief Justice Hedges
Full style: Brrian K. Heiskell v. Kennith and Sheri Kendrick
Appeal from 311th Family District Court of Harris County
M E M O R A N D U M O P I N I O N
Brian Heiskell appeals the custody award pursuant to a decree of divorce rendered in the matter of the marriage of Brian Heiskell and Misty Heiskell and in the interest of their minor children. The challenged order appoints the maternal grandparents joint managing conservators of the children. We affirm.
I. BACKGROUND
Brian Heiskell ("Father") and Misty Heiskell ("Mother") were married on March 14, 1998. Two children were born of this marriage on September 14, 1998 and June 18, 2001. The marriage was a turbulent one. Mother made several allegations against Father of verbal and physical abuse during the marriage. Father made similar allegations against Mother and claimed that Mother was promiscuous. Mother and Father separated in October 2003. Upon their separation, Mother and Father voluntarily left the two children in the care of the maternal grandparents, appellees, who reside in Sweetwater. Mother stayed in Houston while Father moved to Harlingen. Thereafter, the children returned to stay with Mother in Houston for approximately eight months. The children have been in the constant care of appellees since November 2004.
Mother filed for divorce in February 2005, requesting that she be appointed sole managing conservator of the children. Father filed his counter-petition two months later and also requested to be appointed sole managing conservator of the children. In December 2005, appellees filed an intervention alleging that appointment of Father and Mother as joint managing conservators would not be in the best interest of the children and requesting appointment as joint managing conservators of the children. Following a bench trial held on May 22, 2006, the district court appointed appellees joint managing conservators and Father and Mother possessory conservators with corresponding periods of possession.
Father presents two issues for review in this appeal. He argues that (1) appellees failed to prove that his appointment as managing conservator would significantly impair the children's physical health or emotional development and (2) appellees failed to satisfy the higher standard of proof required to rebut the parental presumption that appointment of Father as managing conservator is in the best interest of the children. We will address each issue in turn.
II. ANALYSIS
A. Standards of Review
When courts resolve questions regarding conservatorship, the best interest of the child is the primary consideration. Tex. Fam. Code Ann. ' 153.002 (Vernon 2002). Moreover, the trial judge has wide latitude in determining best interest. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). Indeed, we cannot interfere with the trial court's ultimate decision unless we conclude that it abused its discretion. In the Interest of Doe, 917 S.W.2d 139, 141 (Tex. App.CAmarillo 1996, writ denied). Generally, the test for abuse of discretion is whether the trial court acted without reference to any guiding rules and principles or whether the trial court acted arbitrarily and unreasonably. See McDaniel v. Yarbrough, 898 S.W.2d 251, 253 (Tex. 1995). Under an abuse of discretion standard, legal and factual insufficiency are not independent grounds of error, but rather are relevant factors in assessing whether the trial court abused its discretion. In re T.J.L., 97 S.W.3d 257, 266 (Tex. App.-Houston [14th Dist.] 2002, no pet.). There is no abuse of discretion as long as some evidence of a substantive and probative character exists to support the trial court's decision. Id.
In a sufficiency review, appellate courts apply a hybrid analysis because sufficiency of the evidence and abuse of discretion standards of review often overlap in family law cases. See In re D.S., 76 S.W.3d 512, 516 (Tex. App.-Houston [14th Dist.] 2002, no pet). Within this overarching standard, we engage in a two-pronged inquiry to determine whether the trial court (1) had sufficient information on which to exercise its discretion and (2) erred in its application of discretion. Zeifman v. Michels, 212 S.W.3d 582, 588 (Tex. App.CAustin 2006, pet. denied). The traditional sufficiency review comes into play with regard to the first question, and those standards are discussed below. See id. With regard to the second question, we determine whether, based on the elicited evidence, the trial court made a reasonable decision. Id. Thus, we resolve the second question by determining whether the trial court's findings constitute an abuse of discretion. The mere fact that a trial judge may decide a matter within his discretion in a different manner than appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Whitworth v. Whitworth, 222 S.W.3d 616, 623 (Tex. App.-Houston [1st Dist.] 2007, no pet.).
B. Legal and Factual Sufficiency
In appellant's first issue, he argues that the evidence presented at trial is not legally or factually sufficient to support the trial court's decision to appoint appellees joint managing conservators based on its implied finding that Father's appointment would significantly impair the physical health or emotional development of the children. The evidence is legally insufficient only if (1) the record discloses a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998). In determining whether there is legally sufficient evidence to support the trial court's exercise of discretion, we consider evidence and inferences favorable to the finding if a reasonable factfinder could, and disregard evidence contrary to the finding unless a reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); In Re H.C. & S.C., 942 S.W.2d 661, 664 (Tex. App.-San Antonio 1997, no writ). In analyzing a challenge to the factual sufficiency of the evidence, we examine the entire record to determine if the trial court=s finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. See In re C.H., 89 S.W.3d 17, 25 (Tex. 2002); Manon v. Tejas Toyota, Inc., 162 S.W.3d 743, 752-53 (Tex. App.-Houston [14th Dist.] 2005, no pet.).
Next, in analyzing whether to appoint a parent or nonparent as managing conservator, statute requires the court to presume that appointing a biological parent is in the best interest of the child. See Tex. Fam. Code Ann. ' 153.131(a) (Vernon 2001). Consequently, this parental presumption imposes a heavy burden on a non-parent seeking conservatorship. See Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990). It is not adequate to offer evidence that a nonparent would be a better custodian of the child. Id. Still, this parental presumption is rebuttable. For instance, proof that such an appointment would significantly impair the child=s physical health or emotional development negates the parental presumption, as does a finding of a history of family violence involving the parents of a child. See Tex. Fam. Code Ann. '' 153.131(a), 153.131(b),153.004(b) (Vernon 2001).
In the instant case, we must determine whether there was sufficient evidence to support the trial court's implied finding (1) that appointing Father as managing conservator would significantly impair the children's physical health or emotional development or (2) that there exists a history of family violence involving the parents of the children.[1] See id.
1. Impairment to Children's Physical Health or Emotional Development Under Section 153.131
For the court to award managing conservatorship to a nonparent under section 153.131, the nonparent must prove by a preponderance of credible evidence that appointing the parent as a managing conservator would result in serious physical or emotional harm to the child. Whitworth, 222 S.W.3d at 623. There must be evidence to support the logical inference that some specific, identifiable behavior or conduct of the parent will probably cause that harm. Id. In essence, section 153.131 presumes that the best interests of a child is served when a biological parent is appointed managing conservator unless there is evidence that the biological parent has engaged in specific acts that would impair the child's physical health or emotional development.
Father alleges that there is insufficient evidence to support the implied finding that his appointment as managing conservator would impair the children=s physical health or emotional development. Specifically, he argues that the evidence presented at trial was insufficient to rebut the parental presumption under section 153.131. In support of his argument, Father cites excerpts from the testimony at the divorce proceeding to the effect that (1) he was never convicted of a crime involving family violence; (2) he removed himself from a volatile situation with Mother and began counseling to deal with his violent outbursts; (3) he has not been involved in any physical altercation since June 2004; (4) he has maintained health insurance on the children; (5) he has exercised possession and access to the children during the pendency of the divorce; and (6) he has made some child support payments to Mother and appellees. Relying on May v. May, 829 S.W.2d 373, 377-78 (Tex. App.CCorpus Christi 1992, writ denied), Father contends that the material time concerning fitness for child custody is the present, not the past; the fact that the parent would not have been a proper custodian sometime in the past is not controlling.
Though highly disputed by Father, there is evidence that awarding Father managing conservatorship would significantly impair the children=s physical health or emotional development. Specifically, there is evidence that Father physically attacked Mother on a number of occasions, one of which transpired while the daughter was in harm=s way. Father made only sporadic visits to the children following the separation (ten visits over two years and seven months) and has failed to provide adequate financial support for the children.
Additionally, Mother and appellees testified that the son has exhibited violent behavior towards his sister, Mother, and appellees, indicating that such violence was acceptable because ADaddy did it.@ The violent behavior diminished after the child was placed in the care of appellees. There is evidence that Father accepted money from a man in consideration for his wife=s Acompanionship.@[2] See Whitworth, 222 S.W.3d at 623 (stating that an adult=s future conduct may be somewhat determined by recent past conduct.).
An abuse of discretion does not occur as long as some evidence of a substantive and probative character exists to support the trial court=s decision. Id. We find that there is sufficient evidence to support the trial court=s implied finding that appointing Father as managing conservator would significantly impair the children=s physical health or emotional development.
2. Finding of a History of Family Violence Under Sections 153.131(b) and 153.004(b)
A finding of a history of family violence also rebuts the section 153.131 parental presumption that the appointment of a parent as the sole managing conservator of a child or as the conservator who has the exclusive right to determine the primary residence of a child is in the best interest of the child. See Tex. Fam. Code Ann. ' 153.131(b). The presumption is rebutted if sufficient evidence is presented showing a history or pattern of past or present child neglect, or physical abuse by that parent directed against the other parent, a spouse or a child. Tex. Fam. Code Ann. ' 153.004(b).
In the instant case, there is sufficient evidence to support a finding of a history of family violence. See Tex. Fam. Code Ann. ' 71.004 (Vernon 2002) (family violence is an act by a member of a family against another member of the family that is intended to result in physical harm, bodily injury, assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury or assault). There was testimony that Father physically attacked Mother on a number of occasions during the marriage. One such attack led to a thirty-day deferred adjudication of guilt and a magistrate order for emergency protection against Father. At least one of the physical altercations occurred while the daughter was endangered. It is undisputed by Father that he made an oral threat to beat his wife to death. All of these incidents occurred within two years of the divorce action. See Tex. Fam. Code Ann. ' 153.004 (in determining whether to appoint a party a managing conservator, the court shall consider evidence of the intentional use of abusive physical force by a party against the party=s spouse committed within a two-year period preceding the filing of the suit). There is sufficient evidence to support the trial court=s implied finding of a history of family violence to rebut the parental presumption.
Considering the evidence and inferences in favor of the finding, we find the evidence to be legally sufficient to support the trial court=s decision. Additionally, we find that the evidence is not so against the great weight and preponderance of the evidence to be manifestly unjust. We find that (1) there is sufficient evidence that Father=s appointment as managing conservator would significantly impair the children=s physical health or emotional development and (2) there is sufficient evidence to support the court=s implied finding of a history of family violence involving the parents and the children. This evidence negates the parental presumption. Under the applicable standard of review, we find the evidence is legally and factually sufficient to support the trial court=s decision. We overrule Father=s first issue.
C. Best Interest Test
In Father=s second issue, he contends that the trial court abused its discretion in finding that appellees successfully rebutted the presumption that his appointment as managing conservator was in the best interests of the children. Specifically, he argues that appellees failed to meet the Ahigher standard@ of proof required to rebut the parental presumption.
In 1995, the Texas Legislature substantially revised to the Texas Family Code regarding the parental presumption and family violence in custody cases. Father argues that when a non-parent is appointed managing conservator, the court must apply a higher standard to determine the best interests of the child. He attempts to support his contention that the standard "best interests" test is inappropriate in this case based on Brooks v. Brooks, 881 S.W.2d 297, 298 (Tex. 1994). He argues that Brooks imposes a higher level of analysis under section 14.07 in cases awarding custody to a nonparent. We note that section 14.07 was repealed in 1995. Act of May 10, 1991, 72nd Leg., R.S., ch. 161, ' 3, 1991 Tex. Gen. Laws 771, repealed and recodified by Act of April 6, 1995, 74th Leg., R.S., ch. 20, 1995 Tex. Gen. Laws 113. Even under the former section 14.07, the higher standard outlined in Brooks is essentially the current parental presumption under the new section 153.131(a). See Brooks, 881 S.W.2d at 298 (holding that before appointing a non-parent sole conservatorship, there must be proof that "appointment of the parent would significantly impair the child's health or emotional development"). It is undisputed that statute requires primary consideration of the best interest of the child in determining the issues of conservatorship and possession of and access to the child. See Tex. Fam. Code Ann. ' 153.002. There is no authority imposing a different test or higher standard to be applied to a custody case awarding non-parents sole managing conservatorship and biological parents possessory conservatorship. We hold that the trial court did not abuse its discretion in finding that appointment of appellees as managing conservators is in the best interest of the children. We overrule Father's final issue.
We affirm the judgment of the trial court.
/s/ Adele Hedges, Chief Justice
Judgment rendered and Memorandum Opinion filed October 23, 2007.
Panel consists of Chief Justice Hedges and Justices Frost and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] The record does not contain an explicit affirmative finding by the trial court that (1) appointment of Father as managing conservator would significantly impair the children's physical health or emotional development or (2) there exists a history of family violence. We do note, however, that the trial court made an oral finding during the divorce trial that Aall Family Code requirements for the Court to make t[he conservatorship] appointments have been satisfied by the evidence presented in the course of this trial." The final decree of divorce also states "The Court finds that all requirements of the Family Code, necessary to award custody of the children to Intervenors, have been met."
[2] Mother testified at trial that Father "pimped" her out to a Mr. Ward. Mother indicated that Mr. Ward and Father met in person and made an agreement wherein for Mr. Ward's payment of $15,000, Father would allow Mr. Ward to spend time with Mother while Mr. Ward's wife was out of town. Father testified that he took the money from Mr. Ward because it was "easy money," but denied that he entered into such an agreement to prostitute his wife.
Substitution of Counsel: The Client is King
Houston Court of Appeals rules that attorney who did not want to withdraw from divorce case had no standing to challenge the authority of his replacement to proceed with post-judgment motions on behalf of the client; voids trial court's ruling on Rule 12 motion, holding that the motion was not brought by or on behalf of any party, as required by the rule.
Philips v. Philips, No. 01-06-00526-CV (Tex.App.- Houston [1st. Dist.] Oct. 18, 2007)(Hanks)(Rule 12 motion, motion for new trial)
Disposition: REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Hanks
Before Justices Taft, Hanks and Higley
Full style: Patricia Phillips v. Charles T. Phillip
OPINION BY JUSTICE GEORGE C. HANKS, JR.
After Patricia and Charles T. Phillips's divorce decree was signed, Patricia retained a new attorney to file a motion for new trial. The trial court struck the motion for new trial after hearing Patricia's trial attorney's Rule 12 motion to show authority, challenging the new attorney's authority to represent Patricia. In one point of error, Patricia argues that the trial court erred in striking her motion for new trial. We agree, reverse the trial court's grant of the Rule 12 motion, and remand for a hearing on the motion for new trial.
Background
On December 13, 2005, Patricia and Charles's uncontested divorce was granted, and their property division was approved, judgment to be entered on January 9, 2006. However, several changes were made to the decree, which was not signed until February 16, 2006. Patricia twice told her trial counsel, Bruce Mauzy, to file a motion for new trial or notice of appeal. He refused and told her that she would have to hire another attorney to file her requests and have the new attorney send him a motion to substitute counsel. Patricia retained Charles A. Hood, who timely filed her motion for new trial and set it for hearing on April 12, 2006. Mauzy was served with a subpoena duces tecum the day before the hearing requesting that he turnover Patricia's file.
On the day of hearing on Patricia's motion for new trial, Mauzy filed a motion to show authority under Texas Rule of Civil Procedure 12 and a motion to quash the subpoena duces tecum. In the Rule 12 motion, Mauzy argued that Hood lacked authority to file the motion for new trial because Mauzy was still Patricia's attorney when the motion for new trial was filed, and Hood was thus interfering with their attorney/client relationship. The trial court found that Hood lacked authority and struck Patricia's motion for new trial. Hood responded the same day with a motion to substitute counsel and an amended motion for new trial, neither of which was ruled on by the trial court. He also later filed a motion to reconsider, which the trial court denied after a hearing. Patricia now appeals. Summary of Argument
In her sole issue, Patricia argues that the trial court erred in striking her motion for new trial. She asserts that, because Mauzy no longer represented her at the time Hood filed the motion for new trial, the motion should have been heard, not stricken. In support, Patricia contends that: (1) because only a party may challenge an attorney's authority through a Rule 12 motion, Mauzy lacked standing to challenge Hood's authority; (2) it was error for the trial court to hear Mauzy's motion to show authority on the same day it was filed; (3) a client can discharge her attorney and hire new counsel at anytime, for any reason, and, once discharged, the former attorney must withdraw; (4) a motion to substitute counsel was unnecessary; and (5) she was harmed by being denied the counsel of her choice.
Standard of Review
We review a trial court's striking of a motion for new trial for an abuse of discretion. See Air Park-Dallas Zoning Comm. v. Crow-Billingsley Airpark, Ltd., 109 S.W.3d 900, 908 (Tex. App.--Dallas 2003, no pet.). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. CHCA Mainland, L.P. v. Burkhalter, 227 S.W.3d 221, 226 (Tex. App.--Houston [1st Dist.] 2007, no pet.). When reviewing matters committed to the trial court's discretion, we may not substitute our own judgment for that of the trial court. Id.
Standing
Patricia argues that, because Rule 12 states that "[a] party in a suit or proceeding" may bring a motion to show authority, Mauzy, a non-party, lacked standing to bring such a motion. Tex. R. Civ. P. 12. Because standing is a component of subject-matter jurisdiction, we review a trial court's determination of standing de novo. Hairgrove v. City of Pasadena, 80 S.W.3d 703, 705 (Tex. App.--Houston [1st Dist.] 2002, pet. denied). An order is void, among other things, if the trial court lacks subject-matter jurisdiction to render it. Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 439 (Tex. App.--Houston [1st Dist.] 2007, no pet.).
We are also called upon to interpret the meaning of "party" in Rule 12. "[R]ule interpretation is 'a pure question of law over which the judge has no discretion.'" Bradt v. Sebek, 14 S.W.3d 756, 762 (Tex. App.--Houston [1st Dist.] 2000, pet. denied) (quoting Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436, 437 (Tex. 1997)). Thus, we also review rule interpretation de novo. BASF Fina Petrochemicals Ltd. P'ship v. H.B. Zachry Co., 168 S.W.3d 867, 871 (Tex. App.--Houston [1st Dist.] 2004, pet. denied). When a rule of procedure is clear, unambiguous, and specific, we construe its language according to its literal meaning. Bradt, 14 S.W.3d at 762.
Rule 12 has long been the exclusive method for questioning the authority of an attorney to bring a suit. Angelina County v. McFarland, 374 S.W.2d 417, 423 (Tex. 1964). At its roots, Rule 12 (originally Article 320 of the Texas Revised Civil Statutes) was created to protect defendants by giving them a means for determining whether a plaintiff had authorized an attorney to act. Id. Until 1981, a Rule 12 motion was limited to a defendant challenging a plaintiff's attorney's authority to prosecute a suit; afterward, Rule 12 was changed to also allow a plaintiff to challenge another party's attorney's authority. See Gulf Reg'l Educ. Television Affiliates v. Univ. of Houston, 746 S.W.2d 803, 810 (Tex. App.--Houston [14th Dist.] 1988, writ denied).
In the present case, Mauzy, Patricia's original trial counsel, filed a Rule 12 motion contesting Hood's authority to represent Patricia in a motion for new trial. Rule 12 does not address whether a motion can be filed by a non-party attorney. Therefore, we must strictly adhere to the Rule's language, which plainly grants a party standing to challenge an attorney's authority. See Bradt, 14 S.W.3d at 762.
Charles claims that, because he "urged the trial court to grant" Mauzy's Rule 12 motion during the hearings on the Rule 12 motion and the motion to reconsider, the "party" requirement of Rule 12 was met. Regardless, Mauzy filed the Rule 12 motion on his own accord--Charles was not represented by Mauzy, and he did not prompt Mauzy to bring this motion. The motion challenging Hood's authority was not brought by or on behalf of any party.
Thus, because Mauzy lacked standing to file the Rule 12 motion, the trial court's order ruling on the merits and finding that Hood lacked authority is void. See Hong Kong Dev., 229 S.W.3d at 439. The trial court struck Patricia's motion for new trial after erroneously hearing the Rule 12 motion and determining that Hood lacked authority to represent Patricia. As a result, the trial court abused its discretion in striking the motion for new trial. Because this holding is dispositive of Patricia's appeal, we need not address the merits of her other arguments.
Conclusion
We reverse the trial court's striking of the motion for new trial and remand to the trial court for a hearing on the motion for new trial.
George C. Hanks, Jr.
Justice
Panel consists of Justices Taft, Hanks, and Higley.
Philips v. Philips, No. 01-06-00526-CV (Tex.App.- Houston [1st. Dist.] Oct. 18, 2007)(Hanks)(Rule 12 motion, motion for new trial)
Disposition: REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Hanks
Before Justices Taft, Hanks and Higley
Full style: Patricia Phillips v. Charles T. Phillip
OPINION BY JUSTICE GEORGE C. HANKS, JR.
After Patricia and Charles T. Phillips's divorce decree was signed, Patricia retained a new attorney to file a motion for new trial. The trial court struck the motion for new trial after hearing Patricia's trial attorney's Rule 12 motion to show authority, challenging the new attorney's authority to represent Patricia. In one point of error, Patricia argues that the trial court erred in striking her motion for new trial. We agree, reverse the trial court's grant of the Rule 12 motion, and remand for a hearing on the motion for new trial.
Background
On December 13, 2005, Patricia and Charles's uncontested divorce was granted, and their property division was approved, judgment to be entered on January 9, 2006. However, several changes were made to the decree, which was not signed until February 16, 2006. Patricia twice told her trial counsel, Bruce Mauzy, to file a motion for new trial or notice of appeal. He refused and told her that she would have to hire another attorney to file her requests and have the new attorney send him a motion to substitute counsel. Patricia retained Charles A. Hood, who timely filed her motion for new trial and set it for hearing on April 12, 2006. Mauzy was served with a subpoena duces tecum the day before the hearing requesting that he turnover Patricia's file.
On the day of hearing on Patricia's motion for new trial, Mauzy filed a motion to show authority under Texas Rule of Civil Procedure 12 and a motion to quash the subpoena duces tecum. In the Rule 12 motion, Mauzy argued that Hood lacked authority to file the motion for new trial because Mauzy was still Patricia's attorney when the motion for new trial was filed, and Hood was thus interfering with their attorney/client relationship. The trial court found that Hood lacked authority and struck Patricia's motion for new trial. Hood responded the same day with a motion to substitute counsel and an amended motion for new trial, neither of which was ruled on by the trial court. He also later filed a motion to reconsider, which the trial court denied after a hearing. Patricia now appeals. Summary of Argument
In her sole issue, Patricia argues that the trial court erred in striking her motion for new trial. She asserts that, because Mauzy no longer represented her at the time Hood filed the motion for new trial, the motion should have been heard, not stricken. In support, Patricia contends that: (1) because only a party may challenge an attorney's authority through a Rule 12 motion, Mauzy lacked standing to challenge Hood's authority; (2) it was error for the trial court to hear Mauzy's motion to show authority on the same day it was filed; (3) a client can discharge her attorney and hire new counsel at anytime, for any reason, and, once discharged, the former attorney must withdraw; (4) a motion to substitute counsel was unnecessary; and (5) she was harmed by being denied the counsel of her choice.
Standard of Review
We review a trial court's striking of a motion for new trial for an abuse of discretion. See Air Park-Dallas Zoning Comm. v. Crow-Billingsley Airpark, Ltd., 109 S.W.3d 900, 908 (Tex. App.--Dallas 2003, no pet.). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. CHCA Mainland, L.P. v. Burkhalter, 227 S.W.3d 221, 226 (Tex. App.--Houston [1st Dist.] 2007, no pet.). When reviewing matters committed to the trial court's discretion, we may not substitute our own judgment for that of the trial court. Id.
Standing
Patricia argues that, because Rule 12 states that "[a] party in a suit or proceeding" may bring a motion to show authority, Mauzy, a non-party, lacked standing to bring such a motion. Tex. R. Civ. P. 12. Because standing is a component of subject-matter jurisdiction, we review a trial court's determination of standing de novo. Hairgrove v. City of Pasadena, 80 S.W.3d 703, 705 (Tex. App.--Houston [1st Dist.] 2002, pet. denied). An order is void, among other things, if the trial court lacks subject-matter jurisdiction to render it. Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 439 (Tex. App.--Houston [1st Dist.] 2007, no pet.).
We are also called upon to interpret the meaning of "party" in Rule 12. "[R]ule interpretation is 'a pure question of law over which the judge has no discretion.'" Bradt v. Sebek, 14 S.W.3d 756, 762 (Tex. App.--Houston [1st Dist.] 2000, pet. denied) (quoting Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436, 437 (Tex. 1997)). Thus, we also review rule interpretation de novo. BASF Fina Petrochemicals Ltd. P'ship v. H.B. Zachry Co., 168 S.W.3d 867, 871 (Tex. App.--Houston [1st Dist.] 2004, pet. denied). When a rule of procedure is clear, unambiguous, and specific, we construe its language according to its literal meaning. Bradt, 14 S.W.3d at 762.
Rule 12 has long been the exclusive method for questioning the authority of an attorney to bring a suit. Angelina County v. McFarland, 374 S.W.2d 417, 423 (Tex. 1964). At its roots, Rule 12 (originally Article 320 of the Texas Revised Civil Statutes) was created to protect defendants by giving them a means for determining whether a plaintiff had authorized an attorney to act. Id. Until 1981, a Rule 12 motion was limited to a defendant challenging a plaintiff's attorney's authority to prosecute a suit; afterward, Rule 12 was changed to also allow a plaintiff to challenge another party's attorney's authority. See Gulf Reg'l Educ. Television Affiliates v. Univ. of Houston, 746 S.W.2d 803, 810 (Tex. App.--Houston [14th Dist.] 1988, writ denied).
In the present case, Mauzy, Patricia's original trial counsel, filed a Rule 12 motion contesting Hood's authority to represent Patricia in a motion for new trial. Rule 12 does not address whether a motion can be filed by a non-party attorney. Therefore, we must strictly adhere to the Rule's language, which plainly grants a party standing to challenge an attorney's authority. See Bradt, 14 S.W.3d at 762.
Charles claims that, because he "urged the trial court to grant" Mauzy's Rule 12 motion during the hearings on the Rule 12 motion and the motion to reconsider, the "party" requirement of Rule 12 was met. Regardless, Mauzy filed the Rule 12 motion on his own accord--Charles was not represented by Mauzy, and he did not prompt Mauzy to bring this motion. The motion challenging Hood's authority was not brought by or on behalf of any party.
Thus, because Mauzy lacked standing to file the Rule 12 motion, the trial court's order ruling on the merits and finding that Hood lacked authority is void. See Hong Kong Dev., 229 S.W.3d at 439. The trial court struck Patricia's motion for new trial after erroneously hearing the Rule 12 motion and determining that Hood lacked authority to represent Patricia. As a result, the trial court abused its discretion in striking the motion for new trial. Because this holding is dispositive of Patricia's appeal, we need not address the merits of her other arguments.
Conclusion
We reverse the trial court's striking of the motion for new trial and remand to the trial court for a hearing on the motion for new trial.
George C. Hanks, Jr.
Justice
Panel consists of Justices Taft, Hanks, and Higley.
Friday, October 12, 2007
Houston Court of Appeals throws out trial court's sanctions for filing of lis pendens in the course of a divorce suit
Mary Ann Parker v. Sheryl King Walton, No. 14-06-00095-CV (Tex.App.- Houston [14th Dist.] Aug. 28, 2007)(Opinion by Justice Brock Yates)(divorce property and lis pendens, sanctions reversed)(Before Justices Brock Yates, Edelman and Seymore)
Appeal from County Court No. 3 of Galveston County
Disposition: REVERSED AND RENDERED:
O P I N I O N
In five issues, appellant Mary Ann Parker challenges the trial court’s order imposing sanctions against her for recording a lis pendens on property awarded to appellee Sheryl King Walton in a divorce proceeding. We reverse the trial court’s sanctions order and render judgment that Walton take nothing.
I. Factual and Procedural Background
On July 1, 2003, Walton filed for divorce from her husband, Ronnie Joe Walton ("Ronnie Joe"). Ronnie Joe’s mother, Mary Ann Parker, was subsequently joined in the divorce proceeding to litigate claims by Walton regarding two properties at issue in the divorce, including property in Walton’s name located at 84 Harbor Lane in Kemah, Texas.[1] Parker counter-claimed based upon her alleged ownership interest in the Harbor Lane property and attempted to impose a constructive trust. During the course of the litigation, Walton sought to refinance the mortgage on the Harbor Lane property to obtain a lower interest rate. Walton sought authorization from the trial court to refinance the property, and, at a hearing on July 27, 2005, the court orally granted her such authorization. The following week, on August 3, Parker’s attorneys recorded a lis pendens on the Harbor Lane property, which Walton claims precluded her from refinancing. At the ensuing divorce trial on December 6-9, the trial court awarded Walton the Harbor Lane property as her separate property. The court did not submit Parker’s constructive trust claim to the jury.
Thereafter, on December 15, Walton filed a motion for sanctions against Parker, Parker’s attorneys, Ronnie Joe, and Ronnie Joe’s attorneys under Texas Rule of Civil Procedure 13, generally alleging that they filed groundless claims in bad faith and/or to harass her.[2] On December 19, Parker responded, contending that Walton failed to meet her burden to show Parker’s claims were groundless or brought in bad faith or for the purpose of harassment and complaining that the motion was too vague to provide proper notice. At the hearing on December 21, Walton, through her testimony and her attorney’s arguments, principally alleged that Parker recorded the lis pendens to prevent her from refinancing the property and to undermine the court’s order authorizing refinancing. Walton testified that her inability to refinance and obtain a lower interest rate caused her to incur significant costs in additional interest and other charges. Parker’s attorney, Toni Sharretts, responded that, although she was aware Walton might attempt to refinance the property, she recorded the lis pendens only to protect her client’s interests and not to prevent Walton from refinancing. She explained that she was unaware of the hearing or the court’s order when she recorded the lis pendens, as she never received a copy of the motion or other notice, and thus she could not have recorded the lis pendens to undermine the court’s order. According to Sharretts, she first learned of the court’s order when Walton’s attorney contacted her demanding a release of the lis pendens.
Incredulous that the hearing took place or that the court gave such an order, Sharretts requested a copy of documentation reflecting the court’s order, which Walton failed to provide. Walton’s attorney, on the other hand, informed the trial court he properly served all parties in the case with the motion and noted that Ronnie Joe appeared at the motion hearing to contest the refinancing. Walton’s attorney maintained, and Sharretts admitted, that he told her the lis pendens precluded refinancing when he requested that she release it, but she still refused. Although our record does not contain any written documentation of the court’s order, the trial judge stated that he "remember[ed] the motion" and "recall[ed] permitting [Walton] to refinance."
At the close of the hearing, the trial court stated, "All right. I’m going to grant your motion, and I’m going to award the sanctions at . . . $3,500 in the attorney’s fees, and I’m going to award 6,750 in the difference in the interest rates . . . ." After the court’s pronouncement, Walton’s attorney stated that he would prepare a "separate order on that and submit it to opposing counsel."[3] The docket sheet entry from the day of the hearing accordingly reads, "Mot for sanctions granted per order to be filed by Petitioner on or before 1/6/06." However, Walton’s attorney did not file, and the court did not sign and enter, a written judgment signifying the sanctions order on or before January 6, 2006. According to Walton, this was an "inadvertent mistake," and, on June 22, 2006, Walton’s attorney filed a motion to enter judgment nunc pro tunc on the sanctions order. Parker opposed the motion, arguing that a judgment nunc pro tunc operates only to correct a clerical error in a written judgment, and, because no written order existed, a judgment nunc pro tunc was improper. The trial court granted Walton’s motion and entered the judgment nunc pro tunc on the sanctions order on July 13, 2006, awarding sanctions against "Mary Ann Parker" for "sanctionable conduct."[4]
Parker now appeals, claiming the trial court abused its discretion in imposing sanctions against her for recording the lis pendens against the Harbor Lane property.
II. Standard of Review
We review the trial court’s imposition of Rule 13 sanctions for an abuse of discretion. See Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007). We may reverse the trial court’s ruling only if the trial court acted without reference to any guiding rules and principles, such that its ruling was arbitrary or unreasonable. Id. To determine if the sanctions were appropriate or just, the appellate court must ensure there is a direct nexus between the improper conduct and the sanction imposed. Id.
III. Analysis
We first address the second sub-point under Parker’s fifth issue, in which she contends that Walton failed to overcome the presumption that Parker recorded the lis pendens on the Harbor Lane property in good faith to put third parties on notice of the pending litigation concerning the property. Walton counters that the trial court sanctioned Parker not only for recording a lis pendens but also for filing the groundless constructive trust claim against the property "which Walton characterizes as her "homestead" that formed the basis of the lis pendens. Texas Rule of Civil Procedure 13 authorizes imposition of sanctions against an attorney, a represented party, or both, who file pleadings that are (1) groundless and brought in bad faith or (2) groundless and brought to harass. See Tex. R. Civ. P. 13; City of Houston v. Chambers, 899 S.W.2d 306, 309 (Tex. App.-Houston [14th Dist.] 1995, no writ). When determining whether Rule 13 sanctions are proper, the trial court must examine the facts available to the litigant and the circumstances existing when the litigant filed the pleading. See State v. PR Invs. & Specialty Retailers, Inc., 180 S.W.3d 654, 670 (Tex. App.-Houston [14th Dist.] 2005, pet. granted); Neely v. Comm’n for Lawyer Discipline, 976 S.W.2d 824, 828 (Tex. App.-Houston [1st Dist.] 1998, no pet.). Rule 13 requires sanctions based on the acts or omissions of the represented party or counsel and not merely on the legal merit of the pleading. See PR Invs., 180 S.W.3d at 670; Neely, 976 S.W.2d at 828. The trial court must provide notice and hold an evidentiary hearing "to make the necessary factual determinations about the motives and credibility of the person signing the groundless petition." Aldine Indep. Sch. Dist. v. Baty, 946 S.W.2d 851, 852 (Tex. App.-Houston [14th Dist.] 1997, no writ). "Groundless" means no basis in law or fact and not warranted by good faith argument for the extension, modification, or reversal of existing law. Tex. R. Civ. P. 13. Bad faith is not simply bad judgment or negligence; rather, it is the conscious doing of a wrong for dishonest, discriminatory, or malicious purposes. See PR Invs., 180 S.W.3d at 670. Improper motive is an essential element of bad faith. Elkins v. Stotts Brown, 103 S.W.3d 664, 669 (Tex. App.-Dallas 2003, no pet.). Harassment means that the pleading was intended to annoy, alarm, and abuse another person. See PR Invs., 180 S.W.3d at 670. Courts must presume that papers are filed in good faith, and the party moving for sanctions bears the burden of overcoming this presumption. Id.
Walton maintains that Parker’s constructive trust claim was groundless and brought in bad faith and to harass because the trial court refused submission of this claim to the jury at trial, which signaled that the court found no evidence to support it. She further asserts that Parker recorded the lis pendens in bad faith and to harass because she did so only a few days after the court authorized refinancing of the property over Ronnie Joe’s objection, and the lis pendens effectively prevented her from refinancing. Walton notes that, on the day of the sanctions hearing, the trial court "had the entire record of the case before [it]," which shows that both the constructive trust claim and lis pendens were "clearly malicious." Walton adds that Parker’s failure to request findings of fact and conclusions of law constitutes an additional basis for affirming the court’s sanctions order.
We agree with Parker that Walton failed to overcome the presumption that Parker filed her constructive trust claim regarding the Harbor Lane property "and, by extension, the lis pendens"in good faith.[5] At the sanctions hearing, Walton focused exclusively on Parker’s recording of the lis pendens and failed to adduce any evidence showing Parker’s claim, on which the lis pendens was based, was groundless and brought in bad faith or to harass. As to groundlessness, the only statement from the hearing that we construe as relevant to this issue is Walton’s attorney’s statement to the trial court, "It’s difficult for me to understand why they took an interest in [the Harbor Lane property because it] is owned by my clients." The record is otherwise devoid of evidence showing that Parker’s underlying claim lacked a basis in law or fact and was not warranted by a good faith argument for the extension, modification, or reversal of existing law. The record does not contain the pleadings filed in the divorce proceeding or a transcript of the trial record. Further, although the final divorce decree indicates the Harbor Lane property was in Walton’s name and that the constructive trust claim was not in fact submitted to the jury, the decree does not specify that Parker’s claim was groundless. Nor did the court or the parties so specify during the charge conference[6] or in the judgment nunc pro tunc imposing the sanctions, which does not set forth with particularity the acts or omissions on which the sanctions are based.[7] Moreover, we reject Walton’s summary conclusion that
Parker’s claim was groundless simply because the trial court refused to submit it to the jury. Walton does not cite, and we do not find, any authority holding that the court’s refusal to submit a claim to the jury in itself establishes that the claim was groundless. See generally GTE Commc’ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 731 (Tex. 1993) (noting that Rule 13 does not permit sanctions for every pleading or motion requesting relief that is denied).
Similarly, Walton failed to adduce any evidence at the hearing indicating Parker filed the constructive trust claim in bad faith or to harass. The testimony at the hearing focused largely on Parker’s attorneys’ purpose for recording the lis pendens and whether they had notice of the trial court’s order authorizing financing. Such evidence does not adequately explain the facts and circumstances existing at the time Parker filed the constructive trust or the motives, intent, and credibility of Parker or her attorneys in so filing. See Karlock v. Schattman, 894 S.W.2d 517, 523 (Tex. App.-Fort Worth 1995, no writ) (noting that without hearing evidence on circumstances surrounding filing of pleading signer’s credibility and motives, trial court has no evidence to determine that pleading was filed in bad faith or to harass). Again, Walton simply points to the timing of the lis pendens as directly subsequent to the trial court’s order authorizing refinancing and the court’s refusal to submit the constructive trust claim to the jury as conclusive evidence that Parker filed the claim in bad faith and to harass. Therefore, even absent findings of fact and conclusions of law, we conclude Walton failed to overcome the presumption that Parker’s constructive trust claim on the Harbor Lane property was filed in good faith by failing to present any evidence that the claim was groundless and filed in bad faith or to harass. See, e.g., PR Invs., 180 S.W.3d at 671-72 (holding trial court erred in imposing sanctions under Rule 13 where there was no evidence at hearing that petitions were groundless and brought in bad faith or for purpose of harassment); Elkins, 103 S.W.3d at 668-69 (holding trial court abused its discretion in imposing sanctions against attorney for filing motion for sanctions because no evidence of attorney’s motive in filing motion was presented at hearing and thus there was no evidence of bad faith or harassment); see also $19,070.00 v. State, 869 S.W.2d 608, 611B12 (Tex. App.-Houston [14th Dist.] 1994, no writ) ("When there are no findings of fact in an appeal from a trial to the court, the reviewing court must affirm the judgment if it can be upheld on any legal theory that finds support in the evidence." (emphasis added)). We accordingly hold that the trial court abused its discretion in imposing sanctions on Parker.
We sustain issue five, and, because we find this issue dispositive, we need not address Parker’s additional issues. We thus reverse the trial court’s award of sanctions and render judgment that Walton take nothing.
/s/ Leslie B. Yates
Justice
Judgment rendered and Opinion filed August 28, 2007.
Panel consists of Justices Yates, Edelman, and Seymore.
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[1] Although Parker maintains that Walton joined her in the divorce proceeding, we cannot verify the accuracy of this assertion because the record fails to contain the pleadings filed in the proceeding. However, because Walton does not challenge this factual assertion, we will accept it as true. See Tex. R. App. P. 38.1(f); Choice v. Gibbs, 222 S.W.3d 832, 836 n.6 (Tex. App.-Houston [14th Dist.] 2007, no pet.).
[2] Parker contends that Walton did not in fact file a new motion for sanctions after trial on December 15 but simply set a hearing on a motion for sanctions Walton previously filed on December 5 that the trial court struck as untimely on December 6. Thus, Parker concludes there was no live motion for sanctions pending before the court on which it could have rendered judgment. The record contains conflicting documentation to this end; however, because it will not affect the outcome of our decision, we need not address this issue.
[3] The trial court also granted Walton’s requests to enter the final judgment and decree of divorce and to release the lis pendens.
[4] In issue one, Parker claims the trial court’s July 13 order of sanctions was void and requests us to reverse and render a judgment denying Walton sanctions on this ground. Specifically, Parker claims the trial court’s oral pronouncement at the hearing was insufficient to render an order granting sanctions because it contemplated a future reduction of the order to writing by January 6, which did not occur. Thus, Parker concludes, the trial court’s entry of the July 13 written order after the court’s plenary power had expired was void. Upon our review of the trial court’s oral pronouncement and the surrounding context, we conclude the court in fact orally rendered an order granting Walton’s prejudgment motion for sanctions, and, thus, the trial court properly entered such order subsequently via nunc pro tunc. See generally Hannon v. Henson, 15 S.W.2d 579, 583 (Tex. Comm’n App. 1929) (holding that where evidence shows judgment has been actually rendered but not properly entered on record, trial court has power to order entry of such judgment nunc pro tunc); Ex parte Cole, 778 S.W.2d 599, 600 (Tex. App.-Houston [14th Dist.] 1989, no writ) (noting that order is valid when orally pronounced in open court and that formal entry of orally rendered order constitutes only ministerial act). We overrule issue one.
[5] Because we find that Walton failed to meet her burden to justify sanctions with respect to the constructive trust claim that gave rise to the lis pendens, we need not determine whether the lis pendens was by itself sanctionable under Rule 13 or otherwise. See generally Sharif Munir Davidson Dev. Corp. v. Bell, 788 S.W.2d 427, 428B29 (Tex. App.-Dallas 1990, writ denied) (noting that party had "statutory right to advise one and all by lis pendens of the lawsuit he filed" with respect to real estate in dispute and declining to allow imposition of sanctions against party Afor exercising his right to file suit and notice of lis pendens").
[6] We note that our record contains only an excerpt of the transcript from the charge conference.
[7] Parker also complains that the judgment nunc pro tunc imposing sanctions fails to comply with Rule 13. See Tex. R. Civ. P. 13 ("No sanctions under this rule may be imposed except for good cause, the particulars of which must be stated in the sanction order."); PR Invs., 180 S.W.3d at 672 (noting that trial court has duty to set forth expressly and with particularity acts or omissions on which it based Rule 13 sanctions). However, because Parker failed to raise this objection to the trial court, she waived this complaint. See Appleton v. Appleton, 76 S.W.3d 78, 87 (Tex. App.-Houston [14th Dist.] 2002, no pet.) (holding that party waived complaint that sanctions order lacked particularized findings of good cause because party failed to object on this ground in trial court).
Appeal from County Court No. 3 of Galveston County
Disposition: REVERSED AND RENDERED:
O P I N I O N
In five issues, appellant Mary Ann Parker challenges the trial court’s order imposing sanctions against her for recording a lis pendens on property awarded to appellee Sheryl King Walton in a divorce proceeding. We reverse the trial court’s sanctions order and render judgment that Walton take nothing.
I. Factual and Procedural Background
On July 1, 2003, Walton filed for divorce from her husband, Ronnie Joe Walton ("Ronnie Joe"). Ronnie Joe’s mother, Mary Ann Parker, was subsequently joined in the divorce proceeding to litigate claims by Walton regarding two properties at issue in the divorce, including property in Walton’s name located at 84 Harbor Lane in Kemah, Texas.[1] Parker counter-claimed based upon her alleged ownership interest in the Harbor Lane property and attempted to impose a constructive trust. During the course of the litigation, Walton sought to refinance the mortgage on the Harbor Lane property to obtain a lower interest rate. Walton sought authorization from the trial court to refinance the property, and, at a hearing on July 27, 2005, the court orally granted her such authorization. The following week, on August 3, Parker’s attorneys recorded a lis pendens on the Harbor Lane property, which Walton claims precluded her from refinancing. At the ensuing divorce trial on December 6-9, the trial court awarded Walton the Harbor Lane property as her separate property. The court did not submit Parker’s constructive trust claim to the jury.
Thereafter, on December 15, Walton filed a motion for sanctions against Parker, Parker’s attorneys, Ronnie Joe, and Ronnie Joe’s attorneys under Texas Rule of Civil Procedure 13, generally alleging that they filed groundless claims in bad faith and/or to harass her.[2] On December 19, Parker responded, contending that Walton failed to meet her burden to show Parker’s claims were groundless or brought in bad faith or for the purpose of harassment and complaining that the motion was too vague to provide proper notice. At the hearing on December 21, Walton, through her testimony and her attorney’s arguments, principally alleged that Parker recorded the lis pendens to prevent her from refinancing the property and to undermine the court’s order authorizing refinancing. Walton testified that her inability to refinance and obtain a lower interest rate caused her to incur significant costs in additional interest and other charges. Parker’s attorney, Toni Sharretts, responded that, although she was aware Walton might attempt to refinance the property, she recorded the lis pendens only to protect her client’s interests and not to prevent Walton from refinancing. She explained that she was unaware of the hearing or the court’s order when she recorded the lis pendens, as she never received a copy of the motion or other notice, and thus she could not have recorded the lis pendens to undermine the court’s order. According to Sharretts, she first learned of the court’s order when Walton’s attorney contacted her demanding a release of the lis pendens.
Incredulous that the hearing took place or that the court gave such an order, Sharretts requested a copy of documentation reflecting the court’s order, which Walton failed to provide. Walton’s attorney, on the other hand, informed the trial court he properly served all parties in the case with the motion and noted that Ronnie Joe appeared at the motion hearing to contest the refinancing. Walton’s attorney maintained, and Sharretts admitted, that he told her the lis pendens precluded refinancing when he requested that she release it, but she still refused. Although our record does not contain any written documentation of the court’s order, the trial judge stated that he "remember[ed] the motion" and "recall[ed] permitting [Walton] to refinance."
At the close of the hearing, the trial court stated, "All right. I’m going to grant your motion, and I’m going to award the sanctions at . . . $3,500 in the attorney’s fees, and I’m going to award 6,750 in the difference in the interest rates . . . ." After the court’s pronouncement, Walton’s attorney stated that he would prepare a "separate order on that and submit it to opposing counsel."[3] The docket sheet entry from the day of the hearing accordingly reads, "Mot for sanctions granted per order to be filed by Petitioner on or before 1/6/06." However, Walton’s attorney did not file, and the court did not sign and enter, a written judgment signifying the sanctions order on or before January 6, 2006. According to Walton, this was an "inadvertent mistake," and, on June 22, 2006, Walton’s attorney filed a motion to enter judgment nunc pro tunc on the sanctions order. Parker opposed the motion, arguing that a judgment nunc pro tunc operates only to correct a clerical error in a written judgment, and, because no written order existed, a judgment nunc pro tunc was improper. The trial court granted Walton’s motion and entered the judgment nunc pro tunc on the sanctions order on July 13, 2006, awarding sanctions against "Mary Ann Parker" for "sanctionable conduct."[4]
Parker now appeals, claiming the trial court abused its discretion in imposing sanctions against her for recording the lis pendens against the Harbor Lane property.
II. Standard of Review
We review the trial court’s imposition of Rule 13 sanctions for an abuse of discretion. See Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007). We may reverse the trial court’s ruling only if the trial court acted without reference to any guiding rules and principles, such that its ruling was arbitrary or unreasonable. Id. To determine if the sanctions were appropriate or just, the appellate court must ensure there is a direct nexus between the improper conduct and the sanction imposed. Id.
III. Analysis
We first address the second sub-point under Parker’s fifth issue, in which she contends that Walton failed to overcome the presumption that Parker recorded the lis pendens on the Harbor Lane property in good faith to put third parties on notice of the pending litigation concerning the property. Walton counters that the trial court sanctioned Parker not only for recording a lis pendens but also for filing the groundless constructive trust claim against the property "which Walton characterizes as her "homestead" that formed the basis of the lis pendens. Texas Rule of Civil Procedure 13 authorizes imposition of sanctions against an attorney, a represented party, or both, who file pleadings that are (1) groundless and brought in bad faith or (2) groundless and brought to harass. See Tex. R. Civ. P. 13; City of Houston v. Chambers, 899 S.W.2d 306, 309 (Tex. App.-Houston [14th Dist.] 1995, no writ). When determining whether Rule 13 sanctions are proper, the trial court must examine the facts available to the litigant and the circumstances existing when the litigant filed the pleading. See State v. PR Invs. & Specialty Retailers, Inc., 180 S.W.3d 654, 670 (Tex. App.-Houston [14th Dist.] 2005, pet. granted); Neely v. Comm’n for Lawyer Discipline, 976 S.W.2d 824, 828 (Tex. App.-Houston [1st Dist.] 1998, no pet.). Rule 13 requires sanctions based on the acts or omissions of the represented party or counsel and not merely on the legal merit of the pleading. See PR Invs., 180 S.W.3d at 670; Neely, 976 S.W.2d at 828. The trial court must provide notice and hold an evidentiary hearing "to make the necessary factual determinations about the motives and credibility of the person signing the groundless petition." Aldine Indep. Sch. Dist. v. Baty, 946 S.W.2d 851, 852 (Tex. App.-Houston [14th Dist.] 1997, no writ). "Groundless" means no basis in law or fact and not warranted by good faith argument for the extension, modification, or reversal of existing law. Tex. R. Civ. P. 13. Bad faith is not simply bad judgment or negligence; rather, it is the conscious doing of a wrong for dishonest, discriminatory, or malicious purposes. See PR Invs., 180 S.W.3d at 670. Improper motive is an essential element of bad faith. Elkins v. Stotts Brown, 103 S.W.3d 664, 669 (Tex. App.-Dallas 2003, no pet.). Harassment means that the pleading was intended to annoy, alarm, and abuse another person. See PR Invs., 180 S.W.3d at 670. Courts must presume that papers are filed in good faith, and the party moving for sanctions bears the burden of overcoming this presumption. Id.
Walton maintains that Parker’s constructive trust claim was groundless and brought in bad faith and to harass because the trial court refused submission of this claim to the jury at trial, which signaled that the court found no evidence to support it. She further asserts that Parker recorded the lis pendens in bad faith and to harass because she did so only a few days after the court authorized refinancing of the property over Ronnie Joe’s objection, and the lis pendens effectively prevented her from refinancing. Walton notes that, on the day of the sanctions hearing, the trial court "had the entire record of the case before [it]," which shows that both the constructive trust claim and lis pendens were "clearly malicious." Walton adds that Parker’s failure to request findings of fact and conclusions of law constitutes an additional basis for affirming the court’s sanctions order.
We agree with Parker that Walton failed to overcome the presumption that Parker filed her constructive trust claim regarding the Harbor Lane property "and, by extension, the lis pendens"in good faith.[5] At the sanctions hearing, Walton focused exclusively on Parker’s recording of the lis pendens and failed to adduce any evidence showing Parker’s claim, on which the lis pendens was based, was groundless and brought in bad faith or to harass. As to groundlessness, the only statement from the hearing that we construe as relevant to this issue is Walton’s attorney’s statement to the trial court, "It’s difficult for me to understand why they took an interest in [the Harbor Lane property because it] is owned by my clients." The record is otherwise devoid of evidence showing that Parker’s underlying claim lacked a basis in law or fact and was not warranted by a good faith argument for the extension, modification, or reversal of existing law. The record does not contain the pleadings filed in the divorce proceeding or a transcript of the trial record. Further, although the final divorce decree indicates the Harbor Lane property was in Walton’s name and that the constructive trust claim was not in fact submitted to the jury, the decree does not specify that Parker’s claim was groundless. Nor did the court or the parties so specify during the charge conference[6] or in the judgment nunc pro tunc imposing the sanctions, which does not set forth with particularity the acts or omissions on which the sanctions are based.[7] Moreover, we reject Walton’s summary conclusion that
Parker’s claim was groundless simply because the trial court refused to submit it to the jury. Walton does not cite, and we do not find, any authority holding that the court’s refusal to submit a claim to the jury in itself establishes that the claim was groundless. See generally GTE Commc’ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 731 (Tex. 1993) (noting that Rule 13 does not permit sanctions for every pleading or motion requesting relief that is denied).
Similarly, Walton failed to adduce any evidence at the hearing indicating Parker filed the constructive trust claim in bad faith or to harass. The testimony at the hearing focused largely on Parker’s attorneys’ purpose for recording the lis pendens and whether they had notice of the trial court’s order authorizing financing. Such evidence does not adequately explain the facts and circumstances existing at the time Parker filed the constructive trust or the motives, intent, and credibility of Parker or her attorneys in so filing. See Karlock v. Schattman, 894 S.W.2d 517, 523 (Tex. App.-Fort Worth 1995, no writ) (noting that without hearing evidence on circumstances surrounding filing of pleading signer’s credibility and motives, trial court has no evidence to determine that pleading was filed in bad faith or to harass). Again, Walton simply points to the timing of the lis pendens as directly subsequent to the trial court’s order authorizing refinancing and the court’s refusal to submit the constructive trust claim to the jury as conclusive evidence that Parker filed the claim in bad faith and to harass. Therefore, even absent findings of fact and conclusions of law, we conclude Walton failed to overcome the presumption that Parker’s constructive trust claim on the Harbor Lane property was filed in good faith by failing to present any evidence that the claim was groundless and filed in bad faith or to harass. See, e.g., PR Invs., 180 S.W.3d at 671-72 (holding trial court erred in imposing sanctions under Rule 13 where there was no evidence at hearing that petitions were groundless and brought in bad faith or for purpose of harassment); Elkins, 103 S.W.3d at 668-69 (holding trial court abused its discretion in imposing sanctions against attorney for filing motion for sanctions because no evidence of attorney’s motive in filing motion was presented at hearing and thus there was no evidence of bad faith or harassment); see also $19,070.00 v. State, 869 S.W.2d 608, 611B12 (Tex. App.-Houston [14th Dist.] 1994, no writ) ("When there are no findings of fact in an appeal from a trial to the court, the reviewing court must affirm the judgment if it can be upheld on any legal theory that finds support in the evidence." (emphasis added)). We accordingly hold that the trial court abused its discretion in imposing sanctions on Parker.
We sustain issue five, and, because we find this issue dispositive, we need not address Parker’s additional issues. We thus reverse the trial court’s award of sanctions and render judgment that Walton take nothing.
/s/ Leslie B. Yates
Justice
Judgment rendered and Opinion filed August 28, 2007.
Panel consists of Justices Yates, Edelman, and Seymore.
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[1] Although Parker maintains that Walton joined her in the divorce proceeding, we cannot verify the accuracy of this assertion because the record fails to contain the pleadings filed in the proceeding. However, because Walton does not challenge this factual assertion, we will accept it as true. See Tex. R. App. P. 38.1(f); Choice v. Gibbs, 222 S.W.3d 832, 836 n.6 (Tex. App.-Houston [14th Dist.] 2007, no pet.).
[2] Parker contends that Walton did not in fact file a new motion for sanctions after trial on December 15 but simply set a hearing on a motion for sanctions Walton previously filed on December 5 that the trial court struck as untimely on December 6. Thus, Parker concludes there was no live motion for sanctions pending before the court on which it could have rendered judgment. The record contains conflicting documentation to this end; however, because it will not affect the outcome of our decision, we need not address this issue.
[3] The trial court also granted Walton’s requests to enter the final judgment and decree of divorce and to release the lis pendens.
[4] In issue one, Parker claims the trial court’s July 13 order of sanctions was void and requests us to reverse and render a judgment denying Walton sanctions on this ground. Specifically, Parker claims the trial court’s oral pronouncement at the hearing was insufficient to render an order granting sanctions because it contemplated a future reduction of the order to writing by January 6, which did not occur. Thus, Parker concludes, the trial court’s entry of the July 13 written order after the court’s plenary power had expired was void. Upon our review of the trial court’s oral pronouncement and the surrounding context, we conclude the court in fact orally rendered an order granting Walton’s prejudgment motion for sanctions, and, thus, the trial court properly entered such order subsequently via nunc pro tunc. See generally Hannon v. Henson, 15 S.W.2d 579, 583 (Tex. Comm’n App. 1929) (holding that where evidence shows judgment has been actually rendered but not properly entered on record, trial court has power to order entry of such judgment nunc pro tunc); Ex parte Cole, 778 S.W.2d 599, 600 (Tex. App.-Houston [14th Dist.] 1989, no writ) (noting that order is valid when orally pronounced in open court and that formal entry of orally rendered order constitutes only ministerial act). We overrule issue one.
[5] Because we find that Walton failed to meet her burden to justify sanctions with respect to the constructive trust claim that gave rise to the lis pendens, we need not determine whether the lis pendens was by itself sanctionable under Rule 13 or otherwise. See generally Sharif Munir Davidson Dev. Corp. v. Bell, 788 S.W.2d 427, 428B29 (Tex. App.-Dallas 1990, writ denied) (noting that party had "statutory right to advise one and all by lis pendens of the lawsuit he filed" with respect to real estate in dispute and declining to allow imposition of sanctions against party Afor exercising his right to file suit and notice of lis pendens").
[6] We note that our record contains only an excerpt of the transcript from the charge conference.
[7] Parker also complains that the judgment nunc pro tunc imposing sanctions fails to comply with Rule 13. See Tex. R. Civ. P. 13 ("No sanctions under this rule may be imposed except for good cause, the particulars of which must be stated in the sanction order."); PR Invs., 180 S.W.3d at 672 (noting that trial court has duty to set forth expressly and with particularity acts or omissions on which it based Rule 13 sanctions). However, because Parker failed to raise this objection to the trial court, she waived this complaint. See Appleton v. Appleton, 76 S.W.3d 78, 87 (Tex. App.-Houston [14th Dist.] 2002, no pet.) (holding that party waived complaint that sanctions order lacked particularized findings of good cause because party failed to object on this ground in trial court).
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