Sharon Kay Keith v. Randall Dean Keith

Opinion issued July 20, 2006                    

    In The    

Court of Appeals  

For The  

First District of Texas  

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  NO. 01-04-01214-CV

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SHARON KAY KEITH, Appellant

V.

RANDALL DEAN KEITH, Appellee

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On Appeal from the 312th District CourtHarris County, Texas

Trial Court Cause No. 2000-24422

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O P I N I O N

             Appellant, Sharon Kay Keith (“Sharon”), appeals a sanctions order under Texas Rule of Civil Procedure 13 awarding appellee, Randall Dean Keith (“Randall”), $36,913.51 in attorney’s fees and awarding Linda Thompson, attorney ad litem for the couple’s minor children, $7,400.00 in attorney’s fees. See Tex. R. Civ. P. 13. We determine (1) whether the trial court erred by not giving Sharon the requisite 45-day notice of the first trial setting, (2) whether the trial court erred in failing to specify in its order the particulars of good cause, (3) whether the trial court erred in finding that Sharon’s emergency petition to modify the parent-child relationship (“emergency petition”) was groundless and filed in bad faith, (4) whether the trial court erred in providing that the attorney’s fees were collectible as child support, (5) whether there was legally sufficient evidence to support the award of appellate attorney’s fees, (6) whether the trial court erred in improperly conditioning the award of appellate attorney’s fees, (7) whether the trial court erred in finding that there was legally and factually sufficient evidence to support the ad litem’s attorney’s fees, and (8) whether the trial court erred in awarding 10% post-judgment interest on the fees awarded in the sanctions judgment. We modify the judgment and affirm the judgment as modified.

Facts

          The final divorce decree had been rendered on December 17, 2002. On June 16, 2003, Sharon’s attorney sent a letter to Randall’s attorney, requesting to schedule a mediation of some issues concerning modification of the divorce decree. In response, Randall telephoned Sharon’s attorney regarding his request for mediation and sent a letter in response to the request for mediation. On July 11, 2003, Sharon filed the emergency petition and requested that the court make temporary orders for the safety and welfare of the children. Sharon obtained a temporary restraining order (“TRO”), which, in part, enjoined Randall from leaving the United States with their three children. Randall had been scheduled to leave on a Caribbean cruise with his children on July 14, 2003, a trip that had been planned since May 2003. In Sharon’s affidavit, she alleged that Randall had spanked, isolated, and failed to take their autistic child to therapy; denied the children food; yelled at them frequently; returned the children with horrible sunburns and unexplained bruises; and failed to take the children to scheduled doctor’s appointments. On July 14, 2003, the trial court dissolved the portion of the TRO that prohibited Randall from taking the children on the cruise.

          On July 30, 2003, Randall filed a motion for sanctions, pursuant to rule 13 of the Texas Rules of Civil Procedure, alleging that Sharon’s emergency petition was groundless and brought in bad faith and solely for the purposes of harassment. He further alleged that Sharon’s emergency petition was a direct attempt to sabotage and to thwart his family’s vacation plans. On August 6, 2003, Randall filed a counter-petition seeking both modification of the divorce decree and attorney’s fees and expenses through trial and appeal. On September 16, 2003, Sharon filed a notice of non-suit of her emergency petition’s claim.

          The trial court held two sanctions hearings on October 16, 2003 and October 22, 2003. During the hearings, the trial court considered Randall’s motion for sanctions and the affirmative claim for attorney’s fees asserted in Randall’s counter-petition. On July 12, 2004, the trial court entered an “Order Granting Respondent’s Counterclaims, Opposed Motion For Sanctions Pursuant to Rule 13 and Judgment For Attorney’s Fees.” In the July 12 order, the court granted Randall’s motion for sanctions, finding that Sharon’s emergency petition had been groundless and brought in bad faith. The court awarded attorney’s fees to Randall and Thompson, making the fees collectible as child support. The court provided in the order that “[i]t is ordered that said [$36,913.51] money judgment shall be reduced to Twenty-Six Thousand Nine Hundred Thirteen Dollars and 51/100 ($26,913.51) if this case is not appealed by either party to the Supreme Court resulting in a ruling adverse to Sharon Kay Keith” and “it is further ordered that said money judgment shall be reduced to Nineteen Thousand Four Hundred Thirteen Dollars and 51/100 ($19,413.51) if this case is not appealed by either party to the Court of Appeals resulting in a ruling adverse to Sharon Kay Keith.” On August 20, 2004, the court entered findings of fact and conclusions of law regarding the sanctions.

Final Judgment

          Although neither party contends that the summary judgment is not a final, appealable order, we review sua sponte jurisdictional issues. M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004) (citing N.Y. Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678 (Tex. 1990) (per curiam)).

          It is well-established that, in general, an appeal may be taken only from a final judgment; that is, an appeal may be taken only from a judgment that disposes of all pending parties and claims. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Absent a conventional trial on the merits, a judgment is final “if and only if either it actually disposes of all claims and parties then before the court, regardless of its language, or it states with unmistakable clarity that it is a final judgment as to all claims and all parties.” Id. at 192–93. The law does not require that a final judgment be in any particular form. Id. at 195. The language of an order or judgment can make it final, even though it should have been interlocutory, if that language expressly disposes of all claims and all parties. Id. at 200. If the intent to finally dispose of the case is clear, “then the order is final and appealable, even though the record does not provide an adequate basis for rendition of judgment.” Id. Therefore, whether an order is a final judgment must be determined from its language and the record in the case. Id. at 195.

           The parties have treated the July 12 order as a final judgment. See Cont’l Airlines, Inc. v. Kiefer, 920 S.W.2d 274, 277 (Tex. 1996) (finding that finality “must be resolved by a determination of the intention of the court as gathered from the language of the decree and record as a whole, aided on occasion by the conduct of the parties.”); see Lehmann, 39 S.W.3d at 203. On appeal, neither of the parties contests that the July 12 order was the trial court’s final judgment.   The title of the order appealed, “Order Granting Respondent’s Counterclaims, Opposed Motion For Sanctions Pursuant to Rule 13 and Judgment For Attorney’s Fees,” although not dispositive, is indicative that the order was intended to be final. See Cont’l Airlines, Inc., 920 S.W.2d at 277. Further, in this case, the judgment’s “Mother Hubbard” language and the conduct of the parties indicate the trial court’s intent to make the judgment final. See Lehmann, 39 S.W.3d at 195. The substance of the order recognizes Sharon’s non-suit and specifically states that the order is to resolve all counterclaims, providing that “[t]he Court finds that SHARON KAY KEITH’s request for affirmative relief was non-suited. This Order resolves all facts and claims between all parties regarding this case, including all other Counterclaims filed therein. All relief not granted herein is denied.” (Emphasis added.) Additionally, the trial court assessed post-judgment interest, which is typically assessed in a final judgment. See Tex. Fin. Code Ann. § 304.001 (Vernon 2005). Finally, because Sharon non-suited her emergency petition and because Randall represents on appeal that he never sought a hearing on any remaining issues of his counter-petition, we are left with the firm implication that the court intended that the July 12, 2004 order, signed almost nine months after the October 22 hearing, be its final decree.  

Counter-Petition

          Sharon argues in point of error one that the trial court erred in rendering judgment on Randall’s counter-petition for attorney’s fees because the court did not provide adequate notice, pursuant to Texas Rule of Civil Procedure 245, that the court would consider Randall’s counter-claim for fees at the sanctions hearing. See Tex. R. Civ. P. 245. Although Sharon admits in her brief that the only issue before the court on October 16 and October 22 was Randall’s motion for sanctions, she argues that the trial court “converted” the judgment for sanctions into a judgment for attorney’s fees on Randall’s counter-claim because the trial court found in conclusion of law 16 that “Randall Dean Keith’s Counter-Petition in Suit Affecting the Parent-Child Relationship requested attorney’s fees and expenses, which Respondent/Counter Petitioner elected to pursue under his Motion for Sanctions.”  

           A court must provide “reasonable notice of not less than 45 days to the parties of a first setting for trial. . . .” Tex. R. Civ. P. 245. However, when a party fails to object timely and specifically to the first trial setting on the basis of insufficiency of notice under rule 245, he preserves nothing for review. State Farm Fire & Cas. Co. v. Price, 845 S.W.2d 427, 432 (Tex. App.—Amarillo 1992, writ dism’d by agr.); see Tex. R. App. P. 33.1. On appeal, Sharon has not demonstrated that she preserved this complaint.

          Further, under the doctrine of invited error, an appellant may not complain on appeal that a court granted the appellant’s own request. Tittizer v. Union Gas Corp., 171 S.W.3d 857, 862 (Tex. 2005); Texaco, Inc. v. Pennzoil Co., 729 S.W.2d 768, 835 (Tex. App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.). Simply put, a party may not lead a trial court into error and then complain about it on appeal. Id. At the October 22 hearing, Sharon’s attorney urged the court to consider the hearing as the final one in the case. The following excerpt from the record demonstrates that the parties agreed to consider both the attorney’s fees on the motion for sanctions and the affirmative claim for attorney’s fees in Randall’s counter-petition at that hearing:

[RANDALL’S ATTORNEY]: The underlying lawsuit is still pending, Mr. Keith’s counter-petition to modify.

[SHARON’S ATTORNEY]: This is the hearing for the motion to modify.

COURT: That’s what I thought.

[RANDALL’S ATTORNEY]: This is the hearing on the motion for sanctions. The counter-petition—his counter-petition is still pending.

[SHARON’S ATTORNEY]: When he asked for attorney’s fees that’s what I thought we were here deciding.

COURT: Well, technically he may be correct in that he’s got a cross-petition to modify. . . .

[SHARON’S ATTORNEY]: Judge, if I can respond? Mr. Stocker—[sic] and a couple of weeks ago I believe correctly stated that the only thing in the counter-petition is his request for fees, so this is the final hearing on the case. We nonsuited our case, he had his counter-petition ready, it wasn’t a temporary hearing, it’s—it is the final hearing.

COURT: Well—

[SHARON’S ATTORNEY]: —it addresses all the issues.

                    . . .

[SHARON’S ATTORNEY]: I would request the Court to make a finding that we heard the attorney’s fees issue that was requested in [Randall’s] petition.

THE COURT: Well, yeah, that’s why we’re here.

[SHARON’S ATTORNEY]: Thank you, Judge.  

          Sharon not only referred to the hearing as the final hearing several times, but she also made a request for the court to find that the attorney’s fees claim in the counter-petition was heard at the sanctions hearing. Because Sharon requested that the sanctions hearing be the final hearing on the award of attorney’s fees requested in Randall’s counter-petition, she may not now complain that the hearings were not set for trial in accordance with Rule 245—even assuming that the court erred in so doing.

          We overrule point of error one.

Particularity Requirement and Merits

          In points of error two and three, Sharon argues that the trial court erred “in finding Appellant’s Emergency Petition was groundless and filed in bad faith” and “in failing to specify in its Findings of Facts and Conclusions of Law the particulars for good cause to support its Sanctions Order.”         

A.      Particularity

          In evaluating an allegation of a rule 13 violation, “[c]ourts shall presume that pleadings, motions, and other papers are filed in good faith.” Tex. R. Civ. P. 13. Rule 13 requires the trial court to hold an evidentiary hearing to make the necessary factual determinations about the motives and credibility of the person signing the allegedly groundless petition. Bisby v. Dow Chem. Co., 931 S.W.2d 18, 21 (Tex. App.—Houston [1st Dist.] 1996, no writ). Rule 13 provides for sanctions if a party files a pleading that is either (1) groundless and brought in bad faith or (2) groundless and brought to harass. Tex. R. Civ. P. 13. Groundless means no basis in law or fact and not warranted by a good-faith argument for the extension, modification, or reversal of existing law. Id. If a pleading is filed in violation of rule 13, “the court, upon motion or upon its own initiative, after notice and hearing, shall impose an appropriate sanction available under Rule [of Civil Procedure] 215.2(b), upon the person who signed it, a represented party, or both.” Id. No sanctions may be imposed under rule 13 “except for good cause, the particulars of which must be stated in the sanctions order.” Id.

          Rule 13 is clear: the particulars for good cause “must be stated in the sanctions order.” Tex. R. Civ. P. 13. When a rule of procedure is clear, unambiguous, and specific, we construe the rule’s language according to its literal meaning. Murphy v. Friendswood Dev. Co., 965 S.W.2d 708, 709 (Tex. App.—Houston [1st Dist.] 1998, no pet.). One purpose of the rule 13 particularity requirement is to justify the imposition of the sanctions and to give some evidence that the sanctions were carefully weighed and imposed in an appropriate manner when justified by the circumstances. TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991); Braden v. Downey, 811 S.W.2d 922, 929 (Tex. 1991).

          “A trial court’s failure to specify the good cause for sanctions in a sanction order may be an abuse of discretion.” Gaspard v. Beadle, 36 S.W.3d 229, 239 (Tex. App.—Houston [1st Dist.] 2001, pet. denied); Bradt v. Sebek, 14 S.W.3d 756, 769–70 (Tex. App.—Houston [1st Dist] 2000, pet. denied). A failure to make particular findings in the order may be harmless error, however, if the trial court’s findings of fact and conclusions of law “supply the particulars of the good cause required by Rule 13.” Gaspard, 36 S.W.3d at 239 (holding that trial court’s failure to make particular findings in sanctions order was harmless error because trial court stated on record in its findings that “[The trial court] find[s] good cause to issue sanctions . . . under Rule 13 for the conduct that happened after [the filing of the initial lawsuit] and the counterclaim and discovery and the whole proceedings of this case up to then. [The trial court also finds] that your conduct was not up to the standards of how lawyers should conduct themselves in a lawsuit. . . .”); see Gorman v. Gorman, 966 S.W.2d 858, 867–68 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) (holding that trial court’s failure to make particular findings in sanctions order was harmless because trial court’s findings of fact stated that “[husband’s] only purpose in filing suit was to keep [wife] from receiving the benefit of previous agreements, and that [husband] acted in concert with the plaintiff in the underlying suit, thereby unnecessarily extending the litigation.”).

          The order here did not recite the particular reasons supporting good cause to issue the sanction. The order simply stated: “This Court finds that the Emergency Petition to Modify Parent-Child Relationship . . . was groundless and brought in bad faith, as is defined and contemplated by Rule 13 of the Texas Rules of Civil Procedure.” Consequently, by neglecting adequately to recite the particular reasons supporting good cause to issue the sanctions, the order did not meet the particularity requirement of rule 13. See Tex. R. Civ. P. 13. However, the trial court entered findings of fact and conclusions of law reciting the bases for finding good cause:

1.Sharon Kay Keith’s Emergency Petition to Modify Parent–Child Relationship was groundless and brought in bad faith.

1.(a)The Court Finds that the allegations made by Sharon Kay Keith in her affidavit attached to the emergency motion were so disparate from the testimony received in open court, including that from the affiant herself, and in interviews with the children to cause the Court to conclude that the affidavit was meant to deceive and mislead the Court.

1.(b)The emergency hearing given as a result of affiant’s misleading affidavit was requested at a time that caused enormous inconvenience and expense to Randall Dean Keith.

1.(c)That [sic] the motion to modify supported by Sharon Kay Keith’s affidavit was subsequently non-suited by Sharon Kay Keith.

          The trial court’s conclusions of law provide, in part, that

1.Sharon Kay Keith’s Emergency Petition to Modify Parent–Child Relationship was filed in violation of Rule 13 of the Texas Rules of Civil Procedure, based on findings recited in 1, 1(a), 1(b) and 1(c).

                    . . .

14.All claims brought by Sharon Kay Keith in her Emergency Petition to Modify Parent–Child Relationship were non-suited.    

Based on the foregoing, we hold that the trial court’s failure to recite particular reasons supporting good cause in the sanctions order was harmless because its findings of fact and conclusions of law supplied the particulars of good cause required by rule 13. See Gaspard, 36 S.W.3d at 239; Gorman, 966 S.W.2d at 867–68.  

B.      Merits

          We review a trial court’s rule 13 sanction’s award for an abuse of discretion. Downer v. Aquamarine Operators Inc., 701 S.W.2d 238, 241–42 (Tex. 1985); Gaspard, 36 S.W.3d at 239. We examine the entire record and will overturn a trial court’s discretionary ruling only if it was based on an erroneous view of the law or a clearly erroneous assessment of the evidence. See Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996); Downer, 701 S.W.2d at 241–42. The evidence supports the trial court’s findings of fact 1, 1(a), 1(b), and 1(c) and conclusions of law 1 and 14. Here, the record supports the finding that Sharon filed an emergency motion without sufficient cause within the year following the entry of their divorce decree. Sharon and Randall’s divorce decree had a mediation requirement before the filing of any suits; however, no such mediation occurred. On June 16, 2003, Sharon’s attorney sent a letter to Randall’s attorney, requesting to schedule a mediation of some issues concerning modification of the divorce decree. In response, Randall telephoned Sharon’s attorney and sent a letter within 10 days of having received Sharon’s request for mediation. Randall did not receive any further communication from Sharon’s attorney, which indicated to him that the matter was closed. On July 11, 2003, Sharon filed the emergency petition and requested that the trial court make temporary orders for the safety and welfare of the children.

          At the July hearing, Sharon testified that Andrew, the couple’s autistic son, was fearless of the water and that she was concerned about how he would react to being away from her. The trial court pointed out that nothing alleged in the emergency petition made the cruise any more of a concern than would otherwise exist with normal periods of access because the cruise was only five days and Randall had already had visitation with the children from July 1 to July 11. Further, Sharon testified to ongoing concerns, such as the children’s being improperly disciplined and missing therapy sessions. Thus, the trial court dissolved part of the TRO because there did not seem to be anything in Sharon’s affidavit to justify prohibiting the children from going on the trip.   

          At the October 16 sanctions hearing, Randall testified that there had not been a material or substantial change since the divorce decree had been entered. Specifically, Randall explained that the children’s living environment at his residence had not changed, that the children’s physical health was not endangered, that their emotional development was not significantly impaired, that he had at all times paid the child support ordered by the trial court, and that his income had not increased, but, rather, had decreased since the time of the divorce. Randall testified that Andrew was not spanked and isolated for saying “no,” the children were not denied food or drink, they were not yelled at frequently, and his wife had always acted appropriately around the Keith children. Randall testified that the children were crying and upset about not being able to go on the cruise. When Randall asked the children about allegations that he had cut their nails too short and had not fed them, Emma and Kevin, two of the Keith children, responded that “Mommy twists our words.” On October 15, 2003, the trial court had met and spoken with the children.   

          During the October 22 sanctions hearing, Sharon testified that she did not have personal knowledge of the allegations that she had made in her supporting affidavit for the TRO. She relied on statements made by her children and acknowledged that the children made statements that were sometimes untrue. Sharon admitted that although she alleged in the emergency petition that Emma’s hair had been cut, the haircut had occurred before the divorce was granted, which was seven months prior to the filing of her emergency petition. Although Sharon had alleged that Randall had not taken Andrew to therapy sessions, Randall explained that, after the divorce, Andrew’s therapy was arranged so that it would not be scheduled during Randall’s visitation, in order for Sharon to control Andrew’s therapy sessions.

          The record also reflects that Sharon spoke to an attorney regarding Randall’s taking the children on a trip out of the country two months before Sharon filed the emergency petition; yet, Sharon waited until three days before the trip to file the petition. Randall testified that in August 2003, Sharon had taken the children on an eight- or nine-day vacation out of state and that she had not told him about the vacation prior to their departure. Sharon further admitted that she had called the police to Randall’s home at least five times from January 2003 through October 2003. Sharon non-suited her emergency petition before the sanctions hearing.  

          We hold that the trial court did not abuse its discretion by finding that Sharon’s emergency petition was groundless and filed in bad faith.Accordingly, we overrule points of error two and three.Attorney’s Fees as Child Support

          In points of error four and five, Sharon argues that the trial court erred in making the attorney’s fees awarded to Randall and the attorney ad litem collectible as child support. We construe Sharon’s contentions as challenging the trial court’s legal conclusion that attorney’s fees may be awarded as child support.

          We review the trial court’s conclusions of law de novo. See In re Humphreys, 880 S.W.2d 402, 404 (Tex. 1994). As an appellate court, we must independently evaluate conclusions of law to determine their correctness and will uphold them on appeal if the judgment can be sustained on any legal theory supported by the evidence. Houston Bellaire, Ltd. v. TCP LB Portfolio I, L.P., 981 S.W.2d 916, 919 (Tex. App.—Houston [1st Dist.] 1998, no pet.). Attorney’s fees are permissibly taxed as child support when incurred during child-support enforcement proceedings. In re Moers, 104 S.W.3d 609, 611 (Tex. App.—Houston [1st Dist.] 2003, no pet.). The Legislature has permitted attorney’s fees to be taxed as child support solely in Family Code section 157.167, which is limited to child-support enforcement proceedings. Tex. Fam. Code Ann. § 157.167 (Vernon Supp. 2005).

          The trial court’s findings of fact provided, in part, that

3. The attorney’s fees and expenses incurred by the [sic] Randall Dean Keith were necessaries for the children.

                    . . .

7. The attorney’s fees and expenses incurred by Linda A. Thompson were necessaries for the representation of the children.

The trial court’s conclusions of law provided, in part, that

6. The amount collectible by Randall Dean Keith is collectible as child support.

7. The amount collectible by Linda A. Thompson is collectible as child support.  

          The case before us does not involve attorney’s fees and costs incurred in a child-support enforcement proceeding. Rather, this case involves attorney’s fees and costs incurred defending against Sharon’s emergency petition and prosecuting Randall’s motion for sanctions against Sharon. Randall recognizes that this Court has ruled that attorney’s fees can be taxed as child support only in child-support enforcement proceedings. See In re Moers, 104 S.W.3d at 611. However, he argues that other appellate courts in Texas have awarded attorney’s fees as necessaries in suits affecting the parent-child relationship. Accordingly, Randall asserts that the law is unsettled in this respect. Regardless of what other courts of appeals have done, we have previously held in In re Moers that attorney’s fees can be taxed as child support solely in child-support enforcement proceedings. We are not persuaded that we should hold differently. Thus, we hold that the trial court erred in characterizing attorney’s fees as child support. See In re Moers, 104 S.W.3d at 611–12.   

          We sustain points of error four and five. Appellate Attorney’s Fees  

          The trial court conditionally awarded Randall $10,000 for appellate attorney’s fees for an appeal to the Supreme Court and $7,500 for an appeal to the Court of Appeals. In point of error six, Sharon argues that “the trial court erred in awarding appellate attorney’s fees which are not supported by the evidence.” We construe this as a legal-sufficiency challenge.

          In City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005), the supreme court concluded, “the final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review . . . [L]egal-sufficiency review in the proper light must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not.” Id.

          When reviewing a no-evidence point of error, “all the record evidence must be considered in the light most favorable to the party in whose favor the verdict has been rendered, and every reasonable inference deducible from the evidence is to be indulged in that party’s favor.” Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). “Anything more than a scintilla of evidence is legally sufficient to support the finding.” Formosa Plastics Corp., v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998).

           As a general rule, the party seeking to recover attorney’s fees carries the burden of proof. Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991). The trial court’s award of attorney’s fees may include appellate attorney’s fees. Siegler v. Williams, 658 S.W.2d 236, 241 (Tex. App.—Houston [1st Dist.] 1983, no writ). However, there must be evidence of the reasonableness of fees for appellate work to support the award of appellate attorney’s fees. Id. Factors to be considered in reviewing the reasonableness of attorney’s fees include the difficulties and complexities in the nature of the case; the amount of money involved; the time devoted by the attorney to the case; and the attorney’s experience and skill in presenting the case. Stuckey v.White, 647 S.W.2d 35, 38 (Tex. App.—Houston [1st Dist.] 1982, no writ).

          An appellate court has the authority in looking at the entire record to draw on the common knowledge of the justices of the court and their legal experience and to view the issue in light of the experience and the amount in controversy. C.M. Asfahl Agency v. Tensor, Inc., 135 S.W.3d 768, 802 (Tex. App.—Houston [1st Dist.] 2004, no pet.). The amount of an attorney’s fees award rests in the sound discretion of the trial court, and its judgment will not be reversed on appeal without a clear showing of an abuse of that discretion. Rowley v. Lake Area Nat’l Bank, 976 S.W.2d 715, 724 (Tex. App.—Houston [1st Dist.] 1998, pet. denied). A trial court abuses it discretion when it acts arbitrarily or unreasonably, without reference to any guiding rules and principles. Downer, 701 S.W. 2d at 241–42.  

          Expert opinion evidence on the reasonableness and necessity of attorney’s fees, although not conclusive, is competent evidence of those matters. Lincoln Income Life Ins. Co. v. Mayberry, 347 S.W.2d 598, 601 (Tex. 1961); see Moore v. Bank Midwest, N.A. 39 S.W.3d 395, 406 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). The general rule is that an attorney’s statements must be under oath to constitute evidence. Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997). However, such error is waived by the failure to object when the opponent knew or should have known that an objection was required. Id.   

          Sharon argues that the only mention of appellate attorney’s fees in the record occurred in a dialogue between Randall’s attorney, Stocker, and the trial court. Sharon argues that at that time, Stocker was not under oath. However, the record reflects that Stocker was duly sworn and testified as a witness on the issue of his trial-court attorney’s fees. Stocker testified that he was a board-certified family-law lawyer. He testified as to his rate and that his fees were reasonable for the same or similar services in Harris County. Later in the hearing and on the record, the trial court asked Stocker and Sharon’s attorney to estimate the amount of appellate fees, if the case were to be appealed to the Court of Appeals and the Texas Supreme Court. Stocker estimated that the amount of appellate fees for the Court of Appeals would be $15,000 and for the Supreme Court would be $20,000; however, Sharon’s attorney estimated that the amount of fees for an appeal would be $7,500 for an appeal to the Court of Appeals and $10,000 to the Supreme Court.   

          Here, the court’s questioning of both attorneys regarding their opinions on the amount of appellate attorney’s fees is evidence within the meaning of Banda because it was evidentiary in nature. The trial court asked:

THE COURT: . . . So if Glen [Sharon’s attorney] or if you were to appeal, how much would the appellate [sic] have to pay to defend the appeal? Do you know or do you have an opinion?

[RANDALL’S ATTORNEY]: I have an opinion.

                    THE COURT: How much?

                    [RANDALL’s ATTORNEY]: $15,000

                    THE COURT: Do you agree with that?

[SHARON’s ATTORNEY]: My opinion would be $7,500, Judge, from this end; but my hourly rate is a lot less than [that of Randall’s attorney], so the time might be approximately equal.

THE COURT: And how about if the losing party were not satisfied with the Court of Appeals’ ruling and it was appealed to the Supreme Court, how much would be involved time wise to defend an appeal to the Supreme Court, [Randall’s attorney]?

                    [RANDALL’s ATTORNEY]: Judge, if I might give you an estimated dollar amount based on my experience as opposed to time, I would say in the vicinity of $20,000.

                    COURT: [Sharon’s attorney], what do you think?

                    MR. LILLY: $10,000 Judge but the time again, is approximately the same.

Sharon did not object to the court’s questioning, despite the circumstances’ clearly indicating that each attorney was tendering evidence on the record based on personal knowledge of appellate attorney’s fees. Sharon thus waived the oath reqiuement. See Banda, 955 S.W.2d at 272.   

          Sharon nonetheless contends that Randall’s attorney failed to state an exact dollar amount and to give the number of hours that it would take to appeal the suit. Sharon does not support her argument with any law requiring the reversal of an attorney’s fees award due to the absence of such specific testimony. We should not impose such a requirement. See George Pharis Chevrolet, Inc. v. Polk, 661 S.W.2d 314, 318 (Tex. App.—Houston [1st Dist] 1983, no writ) (holding that complained-of deficiency concerning number of hours spent and reasonable hourly rate goes only to weight of evidence and is not of magnitude that would render it insufficient as matter of law). Moreover, the trial court, in fact, awarded the amount of contingent appellate fees to which Sharon’s attorney subscribed, and Sharon does not complain about her own expert’s conclusion as to contingent appellate fees.     Accordingly, we hold that Randall produced more than a scintilla of evidence regarding appellate attorney’s fees. We overrule point of error six.

Conditional Provision of Attorney’s Fees

          In points of error seven, eight, and nine, Sharon argues that the trial court erred because it improperly conditioned the appellate attorney’s fees.

           A trial court may not penalize a party for taking a successful appeal. Moore, 39 S.W.3d at 401; Sipco Serv’s Marine v. Wyatt Field Serv., 857 S.W.2d 602, 607 (Tex. App.—Houston [1st Dist.] 1993, no writ). An unconditional award of an appellant’s appellate attorney’s fees is improper. Id. at 607–08. Therefore, the trial court must condition the award of appellate attorney’s fees upon the appellant’s unsuccessful appeal. Id. at 607. However, an unconditional award of appellate attorney’s fees does not require reversal; instead, we may modify a trial court’s judgment to make the award of appellate attorney’s fees contingent upon the receiving party’s success on appeal. Pao v. Brays Vill. E. Homeowners Ass’n, 905 S.W.2d 35, 38–39 (Tex. App.—Houston [1st Dist.] 1995, no writ); Houston Livestock Show & Rodeo, Inc. v. Hamrick, 125 S.W.3d 555, 586 (Tex. App.—Austin 2003, no pet.).

          Sharon argues that the portion of the judgment reciting that “it is ordered that said money judgment shall be reduced to Twenty-Six Thousand Nine Hundred Thirteen Dollars and 51/100 ($26,913.51) if this case is not appealed by either party to the Supreme Court resulting in a ruling adverse to Sharon Kay Keith” and that “it is further ordered that said money judgment shall be reduced to Nineteen Thousand Four Hundred Thirteen Dollars and 51/100 ($19,413.51) if this case is not appealed by either party to the Court of Appeals resulting in a ruling adverse to Sharon Kay Keith” imposes improper conditions. She contends that the terminology in the order is ambiguous and does not condition the award on an unsuccessful appeal because the order states that the judgment would be reduced if “the case is not appealed by either party to the Court of Appeals resulting in an adverse ruling to Sharon Kay Keith.”

          We sustain points of error seven, eight, and nine and modify the district court’s judgment so that the award of appellate attorney’s fees is expressly and unambiguously contingent on Sharon’s lack of success on appeal. We modify the trial court’s order in part to state, “It is ordered that the Thirty-Six Thousand Nine Hundred Thirteen Dollars and 51/100 ($36,913.51) money judgment shall be reduced to Twenty-Six Thousand Nine Hundred Thirteen Dollars and 51/100 ($26,913.51) if this case is not appealed by either party to the Supreme Court or if the appeal results in a favorable ruling to Sharon Kay Keith” and “It is further ordered that said money judgment shall be reduced to Nineteen Thousand Four Hundred Thirteen Dollars and 51/100 ($19,413.51) if this case is not appealed by either party to the Court of Appeals or if the appeal results in a favorable ruling to Sharon Kay Keith.”  

Ad Litem Attorney’s Fees

          In point of error 10, Sharon argues that “the trial court erred in awarding the ad litem a money judgment for attorney’s fees because there is no evidence or insufficient evidence to support the ad litem’s attorney’s fees as reasonable and necessary.” We construe this as a legal- and factual-sufficiency challenge. In support of her argument, Sharon contends that no sworn testimony was presented to demonstrate that the ad litem’s fees were reasonable and necessary because, when Thompson spoke to the trial court on the subject of fees, she was not under oath and her statements thus did not constitute evidence.

          The Texas Family Code authorizes a court to award reasonable attorney’s fees to an attorney appointed to represent a child. Tex. Fam. Code. Ann. § 107.015 (Vernon 2005). Attorney’s fees must be supported by competent evidence showing their reasonableness. In re R.D.Y., 51 S.W.3d 314, 321, 325 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). The general rule is that an attorney’s statements as to the reasonableness of his fees must be under oath to constitute evidence. Banda, 955 S.W.2d at 272. However, any error in failing to provide sworn testimony is waived by the failure to object when the opponent knew or should have known that an objection was required. See id.

          The trial court asked Sharon if she wanted to cross-examine or to refute the statements of Thompson, and Sharon responded that she had no issue with Thompson’s credentials, rate, or amount of time spent on the case. A party may not lead a trial court into error and then complain about it on appeal. Texaco, Inc., 729 S.W.2d at 835; Saper v. Rodgers, 418 S.W.2d 874, 877 (Tex. App.—Houston [1st Dist.] 1967, writ ref’d n.r.e.). Accordingly, Sharon is estopped from complaining on appeal about the sufficiency of the evidence. See Texaco, Inc., 729 S.W.2d at 835.  

          In any event, the record shows that Thompson clearly attempted to prove her request for attorney’s fees at the hearing. Thompson stated during the sanctions hearing that she had worked 25 hours in the case, which had not been apportioned or addressed, and that by the end of the hearing, the hours that she worked in the case would have increased to 28 hours. Thompson also stated that her hourly billing rate was $275.00 per hour and that that amount was reasonable, customary, and necessary.

          Therefore, even if Sharon were not estopped from complaining about the sufficiency of the evidence on appeal, we would hold that Thompson’s statements to the court were legally and factually sufficient evidence to support the ad litem’s attorney’s fees as reasonable and necessary.  

          We overrule point of error 10.

Post-Judgment Interest

          In point of error 11, Sharon argues that “the trial court erred in awarding 10% post judgment interest on the money sanctions.”      

          Except for fundamental error, which Sharon does not claim that this is, to preserve a complaint for appellate review, a party must present to the trial court a timely and specific request, objection, or motion. Tex. R. App. P. 33.1(a). A complaint regarding the award of post-judgment interest must be preserved in the trial court by a motion to amend or to correct the judgment or by a motion for new trial. See Allright, Inc. v. Pearson, 735 S.W.2d 240, 240 (Tex. 1987) (holding that error regarding award of pre-judgment interest must be preserved); Miller v. Kendall, 804 S.W.2d 933, 944 (Tex. App.—Houston [1st Dist.] 1990, no writ) (holding that motion to amend or to correct judgment or motion for new trial is proper vehicle for preserving error in judgment). Sharon did not object in these ways.

          Accordingly, we hold that Sharon waived her objection to the court’s calculation of post-judgment interest by not making it in the trial court. See Tex. R. App. P. 33.1(a); Wohlfhart v. Holloway, 172 S.W.3d 630, 640 (Tex. App.—Houston [14th Dist.] 2005, pet. den.) (holding that party waived argument regarding post-judgment interest rate by not making it in trial court); Hachar v. Hachar, 153 S.W.3d 138, 145 (Tex. App.—San Antonio 2004, no pet.); El Paso Dev. Co. v. Berryman, 769 S.W.2d 584, 592 (Tex. App.—Corpus Christi 1989, writ denied).

          We overrule point of error 11.  

Conclusion

           We modify the trial court’s order to delete all of the order’s provisions in any way characterizing the awarded attorney’s fees as “child support” or “necessaries for the children.” We also modify the trial court’s order to state, “It is ordered that the Thirty-Six Thousand Nine Hundred Thirteen Dollars and 51/100 ($36,913.51) money judgment shall be reduced to Twenty-Six Thousand Nine Hundred Thirteen Dollars and 51/100 ($26,913.51) if this case is not appealed by either party to the Supreme Court or if the appeal results in a favorable ruling to Sharon Kay Keith” and “It is further ordered that said money judgment shall be reduced to Nineteen Thousand Four Hundred Thirteen Dollars and 51/100 ($19,413.51) if this case is not

appealed by either party to the Court of Appeals or if the appeal results in a favorable ruling to Sharon Kay Keith.”   

          We affirm the judgment as so modified.  

                                                             Tim Taft

                                                             Justice

Panel consists of Justices Taft, Keyes, and Hanks.

Justice Keyes, dissenting.