Lisa Kay Dawson v. William Jeffrey Dawson ( 2010 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-08-00553-CV
Lisa Kay Dawson, Appellant
v.
William Jeffrey Dawson, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
NO. D-1-FM-05-002142, HONORABLE GISELA D. TRIANA-DOYAL, JUDGE PRESIDING
MEMORANDUM OPINION
This is an appeal from the trial court’s final decree of divorce. In two issues,
appellant Lisa Kay Dawson challenges the trial court’s award of attorney’s fees in favor of appellee
William Jeffrey Dawson.1 Because we conclude that appellant has either failed to preserve these
issues for our review or, in the alternative, has waived these complaints, we affirm the trial court’s
final decree of divorce.
Jeff filed an original petition for divorce on March 30, 2005, which he later amended
to include a request for attorney’s fees. Lisa filed a counter-petition for divorce in which she also
sought attorney’s fees and requested a jury trial. At the start of the trial, the court inquired as to
which issues the parties would submit to the jury. The parties agreed that the issues of managing
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Because the parties have the same surname, we will refer to them as “Lisa” and “Jeff,” their
preferred first names, to avoid confusion.
conservatorship and geographic restrictions relating to their two minor children would be decided
by the jury, and that all property issues would be tried to the court. The trial court then
inquired further:
THE COURT: Anything else that the jury is going to be—
MR. WEEKS [Counsel for Jeff]: No, I don’t believe so, Judge.
THE COURT: Mr. Furlow?
MR. FURLOW [Counsel for Lisa]: There will be issues on attorney fees, as usual.
THE COURT: Are y’all submitting that to the jury?
MR. WEEKS: Either way. It’s up to him. I’ll go either way.
THE COURT: Okay. Attorney’s fees will be submitted to
the jury.
Consideration of the matter continued, however, as the parties discussed how the trial
court’s rulings on their motions in limine would affect the presentation of their evidence on
attorney’s fees. By her motion, Lisa sought to prohibit any testimony regarding settlement offers and
to limit any reference to the fact that settlement discussions had or had not taken place or to the
statements or conduct of any party in connection with such settlement discussions. Jeff’s attorney
objected insofar as such a limitation would prevent him from putting on evidence before the jury of
his reasonable and necessary attorney’s fees that directly resulted from dilatory or bad-faith
negotiation tactics from opposing counsel. The trial court then interjected:
THE COURT: Mr. Furlow, you kind of have to make a decision. If the
attorney’s fees are going to go to the jury, then I believe that
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it will be reasonable for them to determine, if the claim is
made that one or both sides are being unreasonable and, you
know, they’re—what they’re doing as an attorney, they’re
going to hear that.
So—and I—my firm belief is what’s good for the goose is
good for the gander—
MR. FURLOW: Absolutely.
THE COURT: —so if y’all want to sit here and throw mud at each other and
talk about how bad the lawyers are in the case, and that’s how
you choose to spend your time, I’m not going to object to that.
If y’all want to allow me to decide the attorney’s fees at the
end of the case, then I’ll let y’all put that on outside the
presence of the jury. But right now on—I guess—and you
don’t need to decide this second, but the decision is going to
have to be made. If the attorney’s fees are going to be
presented to the jury, then I need to know because I will deny
No. 4 [of Lisa’s motion in limine]. Okay?
....
But my ruling is going to be, if attorney’s fees are going to go
to the jury, if the jury is going to decide attorney’s fees, I will
allow—I will deny request for Motion in Limine No. 4 with
the understanding, Mr. Weeks—I don’t want to hear about
actual negotiations. . . . The only—the only testimony that I’m
going to allow is for the misconduct, if you want to call it, or
the obstructing the process, if that is what y’all are arguing to
the jury. . . .
MR. FURLOW: That’s fair. And I’ll discuss with Mr. Weeks, once we finish
here—
THE COURT: That’s fine.
MR. FURLOW: —whether he wants to submit it to the jury.
THE COURT: Y’all come to a determination and let me know.
MR. WEEKS: I’m done. You can do the attorney’s fees. I do not need to
discuss that.
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THE COURT: Okay. And so it will be his decision.
The record contains no indication, however, of whether or how the issue was
ultimately resolved. The court’s charge contained only four questions, all of which related to the
managing conservatorship of the children and the right to designate their primary residence. During
the charge conference, both parties stated that they had no objections to the jury charge. The jury
returned a verdict that Jeff and Lisa be named joint managing conservators and that Jeff have the
exclusive right to designate the children’s primary residence.
In the months following the jury trial, the court heard further evidence regarding the
property issues. During those proceedings, Mr. Weeks testified without objection that his reasonable
and necessary attorney’s fees totaled just over $38,000.
The trial court signed a final decree of divorce dividing the marital estate and ordering
that Lisa pay Jeff’s attorney’s fees in the amount of $38,000. Lisa now appeals, raising the following
two issues:
POINT OF ERROR NO. ONE (1)
Appellant presents an issue that Appellee failed to prepare and/or present issues for
the Jury to consider as to facts to determine an amount, if any, Appellant would owe
for attorney fees to Appellee, though Appellant requested such findings of fact.
POINT OF ERROR NO. TWO (2)
The Court committed reversible error by granting attorney fees for Appellee against
Appellant, though Appellant requested that the jury make finding of fact as to any
attorney fees and Appellee failed to submit any issues to the jury on that issue.
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Lisa’s entire argument as presented in her brief to this Court consists of the following:
The Court was aware, prior to the beginning of the jury trial, that Appellant was
requesting any fact issue as to attorney fees be submitted to the jury for the jury to
find facts to determine whether attorney fees should be granted and any amount
thereof. See the discussion between the Court and both attorneys beginning at page
8, line 18 of Vol. 2 of 7 and continuing for several pages so it was made abundantly
clear to Appellee’s attorney that any and all issues about attorney fees would be
submitted to the jury.
The Texas Rules of Appellate Procedure control the required contents and
organization of an appellate brief. See Tex. R. App. P. 38.1. One of those requirements is that an
appellant’s brief must concisely state all issues or points presented for review. Id. An issue
presented for appellate review is sufficient if it directs the reviewing court’s attention to the error
about which the complaint is made. Id.; see Canton-Carter v. Baylor Coll. of Med., 271 S.W.3d 928,
931 (Tex. App.—Houston [14th Dist.] 2008, no pet.). Lisa’s first issue fails to meet this
requirement, as it is directed at the actions of the opposing party and not the trial court and
thus presents nothing for our review. See Canton-Carter, 271 S.W.3d at 931; see also Taylor
v. First State Bank, No. 03-98-00474-CV, 1999 Tex. App. LEXIS 6329, at *6 (Tex. App.—Austin
Aug. 26, 1999, no pet.) (not designated for publication).
In addition, an appellant’s brief must contain a clear and concise argument for the
contentions made therein and include appropriate citations to legal authority and the appellate record.
See Tex. R. App. P. 38.1(i); Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007,
no pet.). Lisa’s argument in support of her second issue fails to comply with these requirements.
Furthermore, to complain of a ruling or action by the trial court on appeal, the record must
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demonstrate that the complained-of ruling or action actually occurred. See Tex. R. App. P.
33.1(a)(2). The record in this case does not support Lisa’s assertion that the issue of attorney’s fees
was to be tried to the jury; rather, it shows only that the parties discussed the possibility of presenting
the issue to the jury but never conclusively decided that they would do so. Even more importantly,
Lisa failed to object to the court’s charge, which included no questions regarding attorney’s fees, nor
did she object when the trial court heard evidence regarding Jeff’s attorney’s fees during the bench
trial on Jeff’s motion for enforcement. Therefore, she failed to preserve error regarding her
complaint that the attorney’s fee issue should have been determined by the jury. See id. 33.1(a)(1).
In light of the foregoing, we overrule Lisa’s appellate issues.
CONCLUSION
Having concluded that Lisa failed to preserve any alleged error in the trial court’s
judgment or, in the alternative, has waived her claims due to inadequate briefing in her appeal to this
Court, we affirm the trial court’s final decree of divorce.
J. Woodfin Jones, Chief Justice
Before Chief Justice Jones, Justices Waldrop and Henson
Affirmed
Filed: April 30, 2010
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