Michael Alan Ford v. Selma Gay Harbour

Affirmed and Memorandum Opinion filed March 17, 2009

Affirmed and Memorandum Opinion filed March 17, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-07-00832-CV

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MICHAEL ALAN FORD, Appellant

V.

SELMA GAY HARBOUR, Appellee

On Appeal from the 311th District Court

Harris County, Texas

Trial Court Cause No. 2007-47857

M E M O R A N D U M   O P I N I O N

Appellant, Michael Alan Ford, challenges a protective order entered against him pursuant to the Texas Family Code.  See Tex. Fam. Code Ann. ' 71.001B87.004 (Vernon 2008).  We affirm.

Factual and Procedural Background

On August 13, 2007, appellee, Selma Gay Harbour, filed an application for a protective order in which she also requested an ex parte temporary protective order.  On August 15, 2007, the trial court granted appellee an ex parte protective order and set the hearing on the application for protective order for August 27, 2007.  Appellant was served with the temporary protective order, application for protective order, and hearing notice.  On August 27, 2007, appellant appeared for the hearing along with counsel.  The trial court granted appellant=s request that the hearing be rescheduled and it was reset until August 31, 2007.  On August 31, appellant appeared at the hearing along with his attorney.  However, appellant=s counsel filed a motion to withdraw.  The trial court asked appellant if he objected to his attorney withdrawing and appellant told the court he did not.  The trial court then granted the attorney=s motion.  The trial court then proceeded with the hearing on appellee=s request for a protective order.

Appellee was the first to testify.  Appellee testified that, at the time of the hearing, appellant and appellee had been involved in an on and off relationship for about six years.  According to appellee, appellant relocated to Houston, Texas and moved into appellee=s residence. Appellant and appellee then resided together in an intimate relationship. Appellee testified that, throughout their relationship, appellant had engaged in episodes of dating or family violence.  This conduct included sexually assaulting appellee, wrestling appellee to the floor and stuffing a dirty sock in her mouth, placing appellant=s pet rat on appellee=s face while she was sleeping, which resulted in appellee receiving facial scratches, as well as conduct damaging the walls and appliances in the residence.   According to appellee, these episodes occurred after appellant had been drinking alcohol or using drugs.  Appellee eventually learned to recognize when appellant=s rages were coming and would leave the residence for a couple of nights to give appellant time to calm down.  Appellee testified she asked appellant to leave many times, but he always refused.  On August 7, 2007 appellee fled her residence for two days when appellant threatened to throw a boom box radio through appellee=s car window. After appellee returned to her residence, on August 11, 2007, some guests found a large rubber mallet under the cushions of the sofa where appellant was sleeping.  The police were called and appellant then moved out of the residence into a hotel. At the protective order hearing appellee testified she feared appellant would engage in future violent conduct against her.

Appellee=s attorney, W. Tyler Moore, then testified regarding his legal fees.  Mr. Moore testified he has been licensed to practice law since 1972 and is certified as a specialist in both civil trial law and family law by the Texas Board of Legal Specialization.  He testified he is familiar with fees customarily charged in Harris County, Texas in similar matters and that his hourly rate is $295 and that, in his opinion, this is a fair rate for an attorney of his expertise and experience.  Mr. Moore then testified his total legal fees incurred to that date were $2,500, representing just over eight hours of work.  According to Mr. Moore, that eight hours of work included client conferences, preparation of documents, filing the documents with the court, and three court appearances.  Mr. Moore then concluded by opining that the $2,500 is a reasonable and necessary fee in this case.  Appellant did not cross-examine Mr. Moore.

Finally, appellant himself testified.  On direct, appellant testified he has AADD@ and he did not have access to his medication for that condition.  On cross-examination, appellant admitted another woman had obtained a protective order against him in Oklahoma.  During his testimony, appellant did not deny that the incidents appellee described had occurred, nor did he offer any testimony as to his financial ability to pay the attorney=s fees sought by appellee.

Following the testimony by appellee, appellee=s counsel, and appellant, the trial court granted the Final Protective Order and awarded appellee $2,500 in attorney=s fees.  This appeal followed.

Discussion

Appellant brings four issues on appeal.  In his first issue, appellant contends the evidence supporting the ex parte temporary protective order is legally and factually insufficient.  In his second issue, appellant contends the evidence supporting the final protective order is legally and factually insufficient.  In his third issue, appellant generally contends the trial court did not protect his fundamental rights of due process.  Finally, in his fourth issue,  appellant challenges the legal sufficiency of the evidence supporting the award of appellee=s attorney=s fees.  We address appellant=s issues in order.

A.      Appellant=s first issue challenging the sufficiency of the evidence supporting the ex parte temporary protective order is moot.

In a recent memorandum opinion addressing this same issue, the Austin Court of Appeals determined it did not have subject matter jurisdiction to resolve complaints about a temporary protective order that had been superseded by a final protective order.  Erlewine v. Erlewine, no. 03-06-00308-CV, 2007 WL 2462042 *2 (Tex. App.CAustin August 29, 2007, no pet.) (mem. op.).  The Austin Court held that because the order was labeled temporary, was no longer in effect, and had been superceded by a final protective order, it was moot.  Id.  We agree with the Austin Court. Because we do not have subject matter jurisdiction to resolve a complaint about a superceded temporary protective order, we overrule appellant=s first issue.

B.      The evidence supporting the final protective order is legally and factually sufficient.

1.       The standard of review.

When both legal and factual sufficiency challenges are raised on appeal, we must first examine the legal sufficiency of the evidence.  City of Houston v. Cotton, 171 S.W.3d 541, 546 (Tex. App.CHouston [14th Dist.] 2005, pet. denied).  In conducting a legal sufficiency review, we must consider the evidence in the light most favorable to the appealed order and indulge every reasonable inference that supports it.  City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005); Harris County v. Vernagallo, 181 S.W.3d 17, 24 (Tex. App.CHouston [14th Dist.] 2005, pet. denied); Prairie View A & M Univ. v. Brooks, 180 S.W.3d 694, 705 (Tex. App.CHouston [14th Dist.] 2005, no pet.).  The evidence is legally sufficient if it would enable reasonable and fair-minded people to reach the decision under review.  Keller, 168 S.W.3d at 827; Vernagallo, 181 S.W.3d at 24; Brooks, 180 S.W.3d at 705.  This court must credit favorable evidence if a reasonable trier of fact could, and disregard contrary evidence unless a reasonable trier of fact could not.  Keller, 168 S.W.3d at 827; Vernagallo, 181 S.W.3d at 24; Brooks, 180 S.W.3d at 705.  The trier of fact is the sole judge of the witnesses= credibility and the weight to be given their testimony.  Keller, 168 S.W.3d at 819; Vernagallo, 181 S.W.3d at 24; Brooks, 180 S.W.3d at 705.

This court may sustain a legal sufficiency, or no evidence, point only if the record reveals one of the following: (1) the complete absence 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 scintilla; or (4) the evidence established conclusively the opposite of the vital fact.  Keller, 168 S.W.3d at 810; Brooks, 180 S.W.3d at 705.  When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is less than a scintilla and, in legal effect, is no evidence.  See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004).

In reviewing factual sufficiency, we must examine the entire record, considering both the evidence in favor of, and contrary to, the challenged findings.  See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406B07 (Tex. 1998); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).  We may set aside the verdict for factual sufficiency only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.  See Ellis, 971 S.W.2d at 407; Nip v. Checkpoint Systems, Inc., 154 S.W.3d 767, 769 (Tex. App.CHouston [14th Dist.] 2004, no pet.).  However, we may not substitute our judgment for that of the trier of fact, even if the evidence would clearly support a different result.  Nip, 154 S.W.3d at 769.

2.       The evidence is legally and factually sufficient.

A trial court shall render a protective order if, after a hearing, it finds that family violence has occurred and is likely to occur in the future.  Tex. Fam. Code Ann. '' 81.001, 85.001 (Vernon 2002).  AFamily violence@ means

an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself.

Id. ' 71.004(1).  A>Household= means a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other.@  Id. ' 71.005.  A A>dating relationship= means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature.@  Id. ' 71.0021(b).  In the Final Protective Order, the trial court found that appellant and appellee were involved in a dating relationship.  In addition, the trial court found that appellant and appellee had been residing together.  Finally, the trial court found that family violence had occurred, would likely occur in the future, and that appellant had committed family violence.

Viewing the evidence in the light most favorable to the trial court=s order, we hold  appellee=s testimony, recounted above, provided more than a scintilla of evidence to support the trial court=s findings and imposition of a protective order.  Dempsey v. Dempsey, 227 S.W.3d 771, 777 (Tex. App.CEl Paso 2005, no pet.).  Therefore, the evidence is legally sufficient.

We turn next to appellant=s factual sufficiency challenge.  As already mentioned, appellee was the sole witness testifying in support of her application.  In addition, while appellant testified during the hearing, he did not offer any testimony controverting appellee=s version of the events.  As the sole judge of the credibility of the witnesses, the trial court was free to accept or reject appellee=s uncontroverted testimony.  Dempsey, 227 S.W.3d at 777.  Because the evidence is not too weak to support the trial court=s findings regarding family violence nor are the findings so against the overwhelming weight of the evidence as to be clearly wrong or manifestly unjust, we hold the evidence is factually sufficient.  We overrule appellant=s second issue.

C.      Appellant=s due process rights were not violated.

In his third issue, appellant, without specifying a specific right, asserts his due process rights were violated.  Liberally construing his brief as we must, we conclude appellant=s third issue contends his due process rights were violated in two ways: (1) when the trial court allegedly refused to grant appellant a continuance in order to obtain replacement counsel; and (2) when the trial court allegedly deprived appellant of the opportunity to present evidence.

1.       The trial court did not violate appellant=s due process rights when it proceeded to hold the protective order hearing following the withdrawal of appellant=s counsel.

In his brief, appellant admits he was served on August 17, 2007 with the Temporary Ex Parte Protective Order, Application for Protective Order, and a notice to appear for the protective order hearing scheduled for August 27, 2007.  In response to that notice, appellant appeared with counsel at the August 27, 2007 hearing and requested a continuance of the hearing, which the trial court granted.  The trial court continued the  hearing until August 31, 2007.   Appellant, along with his attorney, appeared again on August 31, 2007.  At that point, appellant=s attorney filed a motion to withdraw as appellant=s counsel.  The trial court asked appellant if he objected to his attorney withdrawing and appellant informed the trial court he did not.  The trial court then granted the attorney=s motion to withdraw.  The trial court then proceeded with the protective order hearing and appellant did not object to the hearing taking place.  During the hearing, appellant made rambling comments that he wanted to obtain counsel for the hearing.

Assuming without deciding appellant made a proper request for a continuance in order to obtain replacement counsel, and the trial court erred by not granting appellant=s request, appellant, in his brief to this court, has not shown how such a failure by the trial court resulted in the rendition of an improper judgment in the case.  Tex. R. App. P. 44.1(a); see In re A.R., 236 S.W.3d 460, 476 (Tex. App.CDallas 2007, orig. proceeding) (stating, in a child custody modification case, to succeed on appeal an appellant must show how the failure to grant a continuance for additional time to retain counsel probably caused the rendition of an improper judgment).  Therefore, we overrule the first part of appellant=s third issue.

2.       The trial court did not deprive appellant of the opportunity to present evidence.

Appellant next complains the trial court denied him the opportunity to present evidence.  We disagree.

General principles of due process dictate that a litigant has a right to be heard and that a court must protect that right.  Streidel v. Streidel, 15 S.W.3d 163, 166 (Tex. App.CCorpus Christi 2000, no pet.).  The opportunity to be heard and present evidence must generally amount to more than a cursory opportunity to cross-examine the other party=s witnesses.  Id. However, that right is not unlimited as a trial court has the discretion to impose reasonable limits on cross-examination based upon concerns about harassment, prejudice, confusion of the issues, and marginally relevant interrogation.  Mercer v. State, 13-07-00412-CV, 2008 WL 2930290 *3 (Tex. App.CCorpus Christi July 31, 2008, no pet.) (mem. op.).

In a hearing on a family violence protective order the only relevant issues are whether family violence has occurred and whether it is likely to occur in the future.  Id. (citing Tex. Fam. Code Ann. ' 85.001).  Because a trial court has the discretion to limit irrelevant questions on cross-examination, it logically follows that a trial court in a family violence protective order hearing may limit cross-examination if the questions asked are not relevant to whether family violence has occurred in the past or is likely to occur in the future.  Id.  In this case, appellant had the opportunity to confront and cross-examine appellee, the applicant for protective order, regarding the alleged family violence as well as appellee=s veracity.  While the trial court did limit appellant=s cross-examination regarding threats allegedly made against him by acquaintances of appellee, because the questions had nothing to do with whether family violence had occurred in the past or is likely to occur in the future, this action was within the trial court=s discretion to limit irrelevant questions on cross-examination.  Id.

Appellant also contends the trial court violated his due process rights because he claims he was unable to fully question appellee regarding her history of allegedly making false accusations against him. According to appellant, appellee had denied appellant access to documents relevant to this claim.  However, through appellant=s cross-examination of  appellee, the trial court learned that while appellee had placed appellant=s property left at her residence in a storage facility, she had paid the first month=s rent, and gave appellant the key with the responsibility to continue paying the rent.  This testimony by appellee demonstrates that not only did appellant have the opportunity to question appellee about the supposedly hidden documents, but it also established that appellant, not appellee, had control over the allegedly missing documents.  Appellant also had the opportunity to ask appellee if she had ever made false accusations of family violence against him.  Appellee denied that she had ever made false accusations against appellant.

During the protective order hearing, appellant had the opportunity to cross-examine appellee=s counsel on the issue of attorney=s fees, but declined the opportunity. Finally, appellant testified on his own behalf.  We hold appellant had a constitutionally adequate opportunity to confront and cross-examine appellee and to present evidence and therefore the trial court did not violate his due process right to be heard.  See Streidel, 15 S.W.3d at 166 (holding the trial court violated the respondent=s due process rights when it completely denied him the opportunity to present any evidence during the protective order hearing).

Because we have determined both arguments made by appellant under his third issue are without merit, we overrule his third issue.

D.      The evidence supporting the trial court=s award of attorney=s fees is legally sufficient.

In his final issue, appellant, citing section 81.005(b) of the Texas Family Code,^[1] contends the trial court had to consider his ability to pay the assessed attorney=s fees and  there was no evidence in the record appellant had the ability to pay the assessed attorney=s fees.  Appellant also argues that since the Family Code provides that the county attorney or district attorney is responsible for filing applications for protective orders, the award of attorney=s fees must be reversed because there was no evidence on the necessity of the services.^[2]

While it is true section 81.007(a) of the Texas Family Code provides that the county attorney or the criminal district attorney is the prosecuting attorney responsible for filing applications for a protective order, sections 81.005(a) and 81.006(1) both authorize the award and payment of attorney=s fees to a privately employed attorney.  Tex. Fam. Code Ann. '' 81.005(a) & 81.006(1).  Therefore, we hold the Family Code, while authorizing a county attorney or criminal district attorney to file an application for protective order, it also permits an applicant to retain a private attorney if they choose and the applicant may then seek the assessment of reasonable attorney=s fees against the respondent.  Id., see In re S. S., 217 S.W.3d 685, 686 (Tex. App.CEastland 2007, no pet.).

Appellant also contends the evidence is legally insufficient to support the award of attorney=s fees because there was Ano evidence that [appellant] had any income or ability to pay the fee that was assessed as is required by the code.@  While it is true there is no evidence to be found in the record as to appellant=s ability to pay the assessed attorney=s fees, we disagree this makes the evidence supporting the award legally insufficient.

Under section 81.005(a) a court may assess reasonable attorney=s fees against a party found to have committed family violence.  Tex. Fam. Code Ann. ' 81.005(a).  In addition, under section 81.005(b), the trial court, when determining the amount of attorney=s fees to be assessed, is required to consider the respondent=s ability to pay.  Id. at ' 81.005(b).  We believe this statutory language creates a divided burden of proof on the issue of the amount of attorney=s fees to be assessed in a family violence protective order case.  Appellee, as the applicant for a family violence protective order that includes a request for attorney=s fees, had the initial burden to ask for and then put forward competent evidence proving she incurred reasonable attorney=s fees as a result of applying for and prosecuting her application for a protective order.  Id. at ' 81.005(a). Then, pursuant to section 81.005(b), appellant had to come forward, not with evidence contesting the amount of attorney=s fees incurred by appellee or even denying the reasonableness of those fees, but with evidence addressing his ability to pay the attorney=s fees sought by appellee.  Because appellant=s burden under section 81.005(b) is not to deny the fees incurred by appellee, but to avoid being assessed some or all of those fees because of an independent reason, his inability to pay, we hold the burden is in the nature of an affirmative defense.  See In re C. M., 996 S.W.2d 269, 270 (Tex. App.CHouston [1st Dist.] 1999, no pet.)(describing an affirmative defense as a defense that seeks to establish an independent reason that a plaintiff should not recover and is therefore a defense of avoidance, rather than a defense of denial).  This division of the burden of proof also makes logical sense because it imposes the burden of proof on the party with the best access to the required information.  Therefore, we hold appellant had the burden to come forward with evidence on that subject if he wanted the trial court to consider his ability to pay any assessment of attorney=s fees.

In support of the assessment of attorney=s fees against appellant, Mr. Moore, appellee=s attorney, testified as detailed above regarding the amount of attorney=s fees incurred and that, in his opinion, said amount was reasonable and necessary.  Appellant offered no controverting evidence and did not cross-examine Mr. Moore. Appellant also failed to offer any evidence as to his ability to pay an assessment of attorney=s fees.  Therefore, we hold the evidence is legally sufficient to support the trial court=s assessment of $2,500 in attorney=s fees against appellant.  We overrule appellant=s fourth and final issue.

Conclusion

Having overruled all of appellant=s issues on appeal, we affirm the final protective order.

/s/      John S. Anderson

Justice

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

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^[1]  Section 81.005(b) provides: AIn setting the amount of attorney=s fees, the court shall consider the income and ability to pay of the person against whom the fee is assessed.@  Tex. Fam. Code Ann. ' 81.005(b) (Vernon 2008).

^[2]  Section 81.007(a) of the Texas Family Code provides: AThe county attorney or the criminal district attorney is the prosecuting attorney responsible for filing applications under this subtitle unless the district attorney assumes the responsibility by giving notice of that assumption to the county attorney.@  Tex. Fam. Code Ann. ' 81.007(a).