Richard Mark Watts v. Ruth Oliver

Affirmed as Modified and Opinion filed January 24, 2013.
In The
Fourteenth Court of Appeals
NO. 14-11-00637-CV
RICHARD MARK WATTS, Appellant
V.
RUTH OLIVER, Appellee
On Appeal from the 387th District Court
Fort Bend County, Texas
Trial Court Cause No. 06-DCV-148449
OPINION
In this appeal from a final order in a suit to modify the parent-child
relationship, appellant Richard Mark Watts complains that the trial court erred by:
(1) limiting expert testimony relevant to the child’s best interest; (2) failing to enter
findings of fact and conclusions of law; (3) awarding Ruth attorney’s fees when
Richard’s petition was not frivolous; (4) awarding Ruth advisory appellate
attorney’s fees; and (5) transferring the case to Harris County on the court’s own
motion. For the reasons explained below, we modify a portion of the trial court’s
judgment and affirm as modified.
Background
Richard and Ruth were married in 1996. In 2003, they had a son, R.A.W.
Richard and Ruth were divorced by a final decree of divorce signed May 23, 2007,
as supplemented by an order signed August 3, 2007. The decree was signed by the
judge of the 387th District Court of Fort Bend County. At the time of the divorce,
Ruth and R.A.W. lived in Bellaire, Texas, and Richard was living in Houston.
After the divorce, Richard moved to Missouri City. The parties had many
disagreements concerning R.A.W.’s upbringing; communication and co-parenting
problems were ongoing.
About a year after the divorce, Ruth made plans to remarry and move to
Cypress, Texas. On August 5, 2008, Ruth notified Richard by email of her plans to
move and relocate R.A.W. to a new school. Richard objected to the move and five
days later filed suit seeking to change primary custody of R.A.W. Ruth filed a
counter-petition to modify, requesting her own affirmative relief.
Trial began on February 28, 2011, and proceeded off and on for eight days,
ending on April 14, 2011. After Richard rested, the trial court partially granted
Ruth’s request for judgment. When Ruth concluded her case the next day, the trial
court denied Richard’s request to change primary custody and rendered judgment
on the remaining issues. The trial court signed a final order on May 24, 2011.
Richard filed a request for findings of fact and conclusions of law and a one-page
motion for new trial. The trial court did not make findings of fact and conclusions
of law, and Richard’s motion for new trial was overruled by operation of law. This
appeal followed.
2
Abuse of Discretion
Richard complains that the trial court erred or abused its discretion by: (1)
limiting expert testimony relevant to the child’s best interest; (2) failing to sign
findings of fact and conclusions of law; (3) awarding Ruth attorney’s fees when
Richard’s petition was not frivolous; (4) awarding Ruth appellate attorney’s fees
that were advisory; and (5) transferring the case to Harris County on the court’s
own motion.
Because a trial court has broad discretion to decide the best interest of a
child in family-law matters such as custody, visitation, and possession, we review a
trial court’s modification ruling under an abuse-of-discretion standard. Gillespie v.
Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). A trial court abuses its discretion
when it acts arbitrarily or unreasonably, or when it clearly fails to correctly analyze
or apply the law. In re D.S., 76 S.W.3d 512, 516 (Tex. App.—Houston [14th Dist.]
2002, no pet.). We also review the trial court’s decision to exclude evidence and to
award attorney’s fees for abuse of discretion. See In re J.P.B., 180 S.W.3d 570,
575 (Tex. 2005) (per curiam) (decision to admit or exclude evidence); In re C.Z.B.,
151 S.W.3d 627, 634 (Tex. App.—San Antonio 2004, no pet.) (decision to grant or
deny award of attorney’s fees and costs).
1. Limitation on Expert Testimony
In his first issue, Richard contends the trial court erred in limiting the expert
testimony of Dr. Kit Harrison, a psychologist who had provided counseling and
therapy to Richard. According to Richard, the trial court’s limitation on Dr.
Harrison’s testimony was an excessive discovery sanction that harmed Richard’s
case because the trial court declined to hear testimony that was relevant to the best
interest of the child. Ruth responds that Richard has waived his complaint by
3
failing to make an offer of proof specifically summarizing Dr. Harrison’s
anticipated testimony and its relevance.
Before trial resumed on April 13, 2011, the trial court and counsel for the
parties had discussions off the record about additional witnesses that may be called
and the length of time remaining for trial. On the record, Ruth objected to
Richard’s intention to call Dr. Harrison, asserting that Richard had failed to timely
supplement discovery regarding this witness and requesting that his testimony be
excluded. In response, Richard offered this summary of Dr. Harrison’s testimony:
We’ll offer testimony regarding efforts taken by [Richard] to
co-parent with [Ruth] and to minimize conflicts with the child.
We’ll also offer testimony regarding the effects of [Ruth’s]
actions on the child, potentially on the child’s relationship with both
parents.
We’ll also offer testimony regarding general psychological
issues affecting children of divorced parents and of parents who
engage in actions [Ruth] has engaged in and [Richard’s] efforts in
working with Dr. Harrison to minimize such harm to the child.
The trial court ruled that Dr. Harrison’s testimony would be limited in scope to
therapy he had provided to Richard; however, the trial court specified that if Dr.
Harrison’s testimony were ultimately to rely on documents which had not been
timely produced in discovery, Dr. Harrison might be precluded from testifying
further.
Later in the day, Richard finished his case in chief with the exception of
calling Dr. Harrison. Ruth’s counsel objected to calling Dr. Harrison out of order,
and at that point the trial court ruled that Dr. Harrison would not be allowed to
testify. Ruth then moved for judgment on some of the affirmative relief Richard
requested. The trial court granted a partial judgment on certain issues, but did not
rule on Richard’s request for a modification of primary conservatorship.
4
When trial resumed the next morning, the trial court announced that it had
reconsidered its decision regarding Dr. Harrison’s testimony. The trial court
advised that Dr. Harrison would be allowed to testify that day over Ruth’s
objection, but his testimony remained limited to Dr. Harrison’s therapy with
Richard. Richard then presented Dr. Harrison’s testimony. After Dr. Harrison
testified, Richard did not ask the trial court to reconsider its earlier decision to
grant judgment on some of Richard’s requested relief, nor did Richard seek to
make an offer of proof regarding the substance of Dr. Harrison’s excluded
testimony to augment the brief summary provided the day before.
Initially, we consider Ruth’s contention that Richard has not preserved his
complaint about the trial court’s ruling limiting Dr. Harrison’s testimony because
he failed to make an offer of proof concerning the excluded testimony. See Tex. R.
Evid. 103(a)(2). Rule 103(a) provides that error may not be predicated on a ruling
that excludes evidence unless a substantial right of the party is affected, and the
substance of the objection was made known to the trial court by offer of proof. Id.
In response, Richard argues that it was not necessary for him to have
demonstrated the substance of what Dr. Harrison would have testified to, because
the arbitrary restriction of his testimony alone was sufficient error to reverse and
remand. To support his contention, Richard cites two cases from this court, Van
Heerden v. Van Heerden, 321 S.W.3d 869 (Tex. App.—Houston [14th Dist.] 2010,
no pet.) and In re N.R.C., 94 S.W.3d 799 (Tex. App.—Houston [14th Dist.] 2002,
pet. denied). These cases, however, do not hold that error preservation is not
required when a trial court excludes part of a witness’s testimony in a suit affecting
the parent-child relationship.
In both Van Heerden and N.R.C., this court considered whether striking all
fact witnesses of a party as a discovery sanction in a suit involving conservatorship
issues constituted an excessive sanction that probably caused the rendition of an
5
improper judgment. See Van Heerden, 321 S.W.3d at 877–79; In re N.R.C., 94
S.W.3d at 812–13. Here, however, the trial court did not strike all Richard’s fact
witnesses; the trial court merely limited the testimony of one witness. Further, in
Van Heerden, failure to preserve error was not alleged regarding the excluded
evidence. See 321 S.W.3d at 876–77. An error-preservation issue was raised in
N.R.C., and this court concluded that the appellant’s offer of proof concerning
three witnesses was sufficient because the offer described the substance of the
proposed testimony, included a detailed letter prepared by one of the witnesses,
and referenced the best interests of the child. See 94 S.W.3d at 806. These cases
cited by Richard did not hold that an adequate offer of proof was not necessary to
preserve error.
To adequately and effectively preserve error, an offer of proof must show
the nature of the evidence specifically enough so that the reviewing court can
determine its admissibility. In re N.R.C., 94 S.W.3d at 806. The offer of proof may
be made by counsel, who should reasonably and specifically summarize the
evidence offered and state its relevance, unless already apparent. Id. If counsel
makes such an offer, he must describe the actual content of the testimony and not
merely comment on the reasons for it. Id.
Richard argues that Dr. Harrison’s expertise could have provided
―substantial evidence to support the merits of Richard’s claims.‖ But his counsel’s
description of Dr. Harrison’s anticipated testimony at trial does not describe the
actual content of his testimony; it merely comments generally on the nature of the
evidence offered and the reasons for it.1 See In re N.R.C., 94 S.W.3d at 806. We
conclude that counsel’s description of Dr. Harrison’s anticipated testimony is
insufficient to preserve the issue for appeal because it is not specific enough to
1
Moreover, counsel’s description did not reference the best interest of the child standard.
See In re N.R.C., 94 S.W.3d at 806.
6
enable this court to determine its admissibility. See id.
Even if we held that Richard made a sufficient offer of proof, we would
nevertheless conclude that Richard has not shown that the trial court abused its
discretion in limiting Dr. Harrison’s testimony. To show that the trial court abused
its discretion, the appellant must demonstrate that: (1) the court erred in not
admitting the evidence; (2) the excluded evidence was controlling on a material
issue dispositive of the case and was not cumulative; and (3) the error probably
caused the rendition of an improper judgment. Van Heerden, 321 S.W.3d at 875.
Because the offer merely refers to generalized categories of testimony,
Richard has not demonstrated that the evidence would have been material to the
trial court’s decision or whether its exclusion was harmful. Notably, Richard does
not contend on appeal that the evidence is legally or factually insufficient to
support the trial court’s conservatorship ruling or otherwise complain about the
ruling. Absent a complaint about the trial court’s substantive ruling, it is difficult to
see how the exclusion of the evidence probably caused the rendition of an
improper judgment.
Further, Dr. Harrison was permitted to testify regarding Richard’s concerns
about R.A.W.’s upbringing and the conflicts between Richard and Ruth. Dr.
Harrison acknowledged, however, that he could not address the authenticity or
veracity of Richard’s concerns. Dr. Harrison also declined to offer testimony
concerning whether he believed Richard was ―competent to make important
decisions‖ regarding R.A.W. Moreover, Dr. Harrison testified that he had never
treated or evaluated R.A.W. and, in fact, he had seen R.A.W. only once when the
child was in a waiting room with Richard in 2007. Thus, Dr. Harrison could not
have testified to any personal knowledge of harm to R.A.W. because he never
treated the child.
On this record, we cannot say that the trial court abused its discretion in
7
limiting Dr. Harrison’s testimony. We overrule Richard’s first issue.
2. No Findings of Fact and Conclusions of Law Filed
In his second issue, Richard contends the trial court erred by failing to sign
findings of fact and conclusions of law. Under Texas Rule of Civil Procedure 296,
when a party makes a proper and timely request for findings of fact and
conclusions of law and the trial court fails to comply, harm is presumed unless the
record affirmatively shows that the requesting party was not harmed by their
absence. Tex. R. Civ. P. 296; Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996)
(per curiam); Haut v. Green Café Mgmt., Inc., 376 S.W.3d 171, 182 (Tex. App.—
Houston [14th Dist.] 2012, no pet.).
It is undisputed that Richard timely filed his request for findings of fact and
conclusions of law. But Richard concedes that he filed and served his notice of past
due findings of fact and conclusions of law thirty-one days after filing his original
request, missing the deadline by one day. See Tex. R. Civ. P. 297. Ruth responds
that Richard’s complaint regarding the court’s failure to file findings of fact and
conclusions of law is waived because he failed to meet the required deadlines.
In his reply brief, Richard contends the late-filed notice of past-due findings
was nevertheless ―timely‖ under Texas Rule of Appellate Procedure 33.1, because
―it brings the trial court’s error to the court’s attention in sufficient time for the
court to correct its error,‖ citing Solomon v. Steitler, 312 S.W.3d 46, 58 (Tex.
App.—Texarkana 2010, no pet.). Richard acknowledges that there is no case law
directly on point to support his argument, but he cites In re E.A.C., a case in which
the trial court belatedly issued its findings of fact in response to a timely request,
and the appellate court explained that in such a case, ―the only issue that arises is
whether the appellant was harmed.‖ See 162 S.W.3d 438, 443 (Tex. App.—Dallas
8
2005, no pet.). Therefore, Richard contends, a late-filed notice of past-due findings
should do no more than remove the presumption of harm.
Rule 33.1, titled ―Preservation; How Shown,‖ provides in relevant part:
(a) In General. As a prerequisite to presenting a complaint for
appellate review, the record must show that:
(1) the complaint was made to the trial court by a timely request,
objection, or motion that:
(A) stated the grounds for the ruling that the complaining party sought
from the trial court with sufficient specificity to make the trial court
aware of the complaint, unless the specific grounds were apparent
from the context; and
(B) complied with the requirements of the Texas Rules of Civil or
Criminal Evidence or the Texas Rules of Civil or Appellate Procedure
....
Tex. R. App. P. 33.1(a). Thus, Rule 33.1 requires not only a timely request,
objection, or motion, but also requires that a party comply with the rules of
procedure and evidence to preserve error for appeal. See id. 33.1(a)(1)(B).
Consistent with Rule 33.1(a), courts have held that a past-due notice not
filed within the thirty-day deadline imposed by Rule 297—even only a few days
late—is untimely and waives a complaint that the trial court failed to file findings
of fact and conclusions of law. See Haut, 376 S.W.3d at 183 (holding that past-due
notice filed three days late waived issue); see also Las Vegas Pecan & Cattle Co.
v. Zavala Cnty., 682 S.W.2d 254, 255 (Tex.1984) (holding appellant’s complaint
that trial court failed to file findings of fact and conclusions of law was waived
when appellant filed past-due notice four days after deadline provided in earlier
version of rule). On this record, therefore, we decline to overturn precedent from
this court and the Supreme Court of Texas requiring that a party timely file its
9
request for findings of fact and conclusions of law and its past-due notice within
the time frame specified by the rules of civil procedure.
Even if we were to presume Richard had not waived error, we would
conclude that he was not harmed. When a trial court fails to file findings of fact
and conclusion of law, error is harmful if it prevents an appellant from properly
presenting a case to the appellate court. Tenery, 932 S.W.2d at 30; Rumscheidt v.
Rumscheidt, 362 S.W.3d 661, 665 (Tex. App.—Houston [14th Dist.] 2011, no
pet.). Richard contends he can demonstrate harm because ―he is forced to guess the
grounds and nature of the attorney’s fees awarded against him, which is otherwise
challenged at issue 3.‖ In his third issue, Richard posits that Ruth is not entitled to
attorney’s fees under either Family Code section 156.005 or 106.002. Thus,
arguably one of two statutes governs the trial court’s award of attorney’s fees to
Ruth. Richard has addressed the issues relevant to either possibility in his brief.
Moreover, Richard does not identify any issue that he was unable to brief as a
result of the trial court’s failure to make findings of fact and conclusions of law.
Therefore, Richard has not been prevented from properly presenting his attorney’s-
fees complaint to this court. See Rumscheidt, 362 S.W.3d at 665. We overrule
Richard’s second issue.
3. Award of Attorney’s Fees
In his third issue, Richard contends the trial court erred in awarding Ruth
$80,000 in attorney’s fees because Richard’s petition was not frivolous. Richard
argues that, absent any findings that his suit was filed frivolously or to harass Ruth,
the trial court’s award was not authorized under Family Code section 156.005.
Alternatively, Richard argues that the award was not authorized under Family
Code section 106.002 because the trial court did not order the attorney’s fees ―to be
paid directly to [Ruth’s] attorney‖; rather, the judgment is awarded to Ruth and she
10
is authorized to enforce it. See Tex. Fam. Code § 106.002. Additionally, Richard
contends that the interest rate on the judgment for attorney’s fees and expenses
exceeds the prevailing legal rate. Richard does not challenge the amount of the
attorney’s-fees award or whether the attorney’s fees awarded were reasonable and
necessary.
Ruth responds that the record contains no evidence that Richard timely
raised his complaints with the trial court and therefore he has not preserved them
for appeal.2 Subject to her waiver argument, however, Ruth concedes that the
interest rate applied is incorrect. Richard replies that he may raise his issues for the
first time on appeal because, in this bench trial, he is challenging the legal and
factual sufficiency of the evidence and contending that the damages awarded are
excessive. See Tex. R. App. P. 33.1(d) (providing that a complaint regarding the
legal or factual insufficiency of the evidence, including a complaint that damages
are excessive or inadequate, may be made for the first time on appeal in a nonjury
case).
As a general rule, an appellant must first complain to the trial court by a
timely request, objection, or motion and obtain a ruling as a prerequisite for
appellate review of that complaint, but the general rule does not apply to
complaints about the sufficiency of the evidence in a trial to the court. Office of
Atty. Gen. of Texas v. Burton, 369 S.W.3d 173, 175 (Tex. 2012) (per curiam); see
Tex. R. App. P. 33.1(d). Liberally construing Richard’s issue as challenging the
legal sufficiency of the evidence regarding the entitlement to attorney’s fees, we
2
The entirety of the substantive portion of Richard’s motion for new trial is as follows:
This court should grant a new trial in the best interest of the child and in the
interest of justice. The prior possession schedule should be restored along with the
prior rights, powers, privileges, and duties. This motion is not brought just for
delay, but that justice may be done.
11
hold that he may raise the issue for the first time on appeal. See Tex. R. App. P.
33.1(d) & 38.9 (briefing rules to be construed liberally).
Family Code section 106.002 permits the award of attorney’s fees and
expenses in suits affecting the parent-child relationship, including modification
proceedings:
(a) In a suit under this title, the court may render judgment for
reasonable attorney’s fees and expenses and order the judgment and
postjudgment interest to be paid directly to an attorney.
(b) A judgment for attorney’s fees and expenses may be enforced in
the attorney’s name by any means available for the enforcement of a
judgment for debt.
See Tex. Fam. Code § 106.002; Lenz v. Lenz, 79 S.W.3d 10, 21 (Tex. 2002). The
award of attorney’s fees in a suit affecting the parent-child relationship is within
the trial court’s discretion. Bruni v. Bruni, 924 S.W.2d 366, 368 (Tex. 1996).
The trial court’s judgment awarding attorney’s fees to Ruth provided as
follows:
IT IS ORDERED that good cause exists to award Ruth Oliver
judgment against Richard Mark Watts in the amount of Eighty
Thousand and NO/100 Dollars ($80,000.00) for reasonable and
necessary attorney’s fees and expenses incurred by Ruth Oliver to be
paid to her attorney of record, Joel A. Nass, with interest at six percent
(6%) per year compounded annually from the date the judgment is
signed until paid. The judgment, for which let execution issue, is
awarded against Richard Mark Watts. Ruth Oliver may enforce this
judgment for attorney’s fees and expenses by any means available for
the enforcement of a judgment for debt.
IT IS ORDERED that Ruth Oliver shall be responsible for the
balance of her attorney’s fees incurred on her behalf.
IT IS ORDERED that Richard Mark Watts shall be responsible
for his attorney’s fees incurred on his behalf.
According to Richard, the trial court’s award fails to comply with the requirements
12
of section 106.002 because the attorney’s fees ―would have to be awarded to the
attorney, not the party, in order to be enforced in the attorney’s name.‖
Under section 106.002, the trial court may render judgment for reasonable
attorney’s fees and order payment directly to an attorney. See Tex. Fam. Code
§ 106.002(a). The statute does not state that the party’s attorney must be awarded
the judgment. Further, although the statute provides that a judgment for attorney’s
fees and expenses may be enforced in the attorney’s name, nothing in the statutory
language requires that the judgment be paid directly to an attorney. See id. At least
one sister court has reached the same conclusion. See In re J.R.L., No. 09-03-553-
CV, 2004 WL 2315120, at *2 (Tex. App.—Beaumont Oct. 14, 2004, no pet.)
(mem. op.) (per curiam) (holding that trial court’s award of attorney’s fees to party
rather than her attorney did not compel conclusion that award must have been
based on section 156.005 and not section 106.002). Richard cites no authorities to
support his interpretation of section 106.002. Considering the statute as a whole, it
contains no terms which would prevent a trial court from awarding a judgment in
the name of the party and giving them the right to enforce that judgment while
ordering that any amounts recovered should be paid to the party’s attorney.
We therefore hold that the trial court’s award of attorney’s fees was
authorized under section 106.002 and, consequently, we do not reach Richard’s
alternative argument that the award was not authorized under section 156.005.
Richard further complains that the trial court misapplied the law in awarding
a six-percent rate of interest on the attorneys-fees award. See Tex. Fin. Code
§ 304.003. Ruth argues Richard has waived his complaint about the interest rate
because he failed to raise it in the trial court. In his reply brief, Richard contends
that he was not required to preserve this complaint below according to the
appellate rules because this was a bench trial and he is challenging the legal
13
sufficiency of the evidence and excessive damages. See Tex. R. App. P. 33.1(d).
But Richard offers no authority for his argument that the trial court’s failure to
award the legally correct interest rate constitutes an issue of legal sufficiency or
excessive damages. Moreover, Richard cites no case law applying Rule 33.1(d) in
this context.
A complaint that the trial court misapplied the law must be raised in the trial
court. Solomon, 312 S.W.3d at 61; see also Basic Energy Serv., Inc. v. D-S-B
Props., Inc., 367 S.W.3d 254, 263–64 (Tex. App.—Tyler 2011, no pet.) (holding
that point of law not raised in bench trial was waived). This court and others have
held that a complaint about the award of post-judgment interest is not preserved for
appeal when the appellant failed to raise the issue in the trial court after a bench
trial. See, e.g., Morton v. Hung Nguyen, 369 S.W.3d 659, 677 (Tex. App.—
Houston [14th Dist.] 2012, pet. filed) (trial judge awarded no pre-judgment interest
despite finding entitlement to same; error not preserved); Tucker v. Thomas, ___
S.W.3d ___, No. 14-09-01081-CV, 2011 WL 6644710, at *15 (Tex. App.—
Houston [14th Dist.] Dec. 20, 2011, pet. granted) (en banc) (holding appellant
waived complaint that post-judgment interest rate on amicus attorney’s fees was
incorrect); Keith v. Keith, 221 S.W.3d 156, 173 (Tex. App.—Houston [1st Dist.]
2006, no pet.) (trial court awarded 10% rather than 5% post-judgment interest;
error not preserved); Hachar v. Hachar, 153 S.W.3d 138, 145 (Tex. App.—San
Antonio 2004, no pet.) (holding that error was not preserved when appellants failed
to apprise trial court of their objection to award of post-judgment interest at rate
that exceeded the percentage rate permitted by the Texas Finance Code). Richard
does not distinguish this precedent. We therefore overrule Richard’s third issue.
4. Award of Attorney’s Fees on Appeal
In his fourth issue, Richard contends the trial court erred in awarding Ruth
14
attorney’s fees on appeal that were advisory. Specifically, Richard complains that
the trial court granted a ―speculative judgment that may or may not arise in the
future‖ because ―[t]here is no way to determine on what date the judgment is
awarded or on what date the interest begins to accrue.‖ Richard also complains the
trial court erred by awarding post-judgment interest at the rate of six percent per
year. According to Richard, this interest rate exceeds the maximum authorized by
law, and the correct interest rate should be five percent. Although Ruth contends
that Richard has waived his complaint concerning the post-judgment interest rate,
Ruth acknowledges that the judgment should be clarified to specify more precisely
when post-judgment interest begins to accrue.
Here, the trial court ordered Richard to pay Ruth’s reasonable and necessary
attorney’s fees ―in the event [Richard] files an unsuccessful appeal‖ to the court of
appeals or the supreme court, and ordered that ―[Ruth] shall be awarded a
judgment against [Richard], for attorney’s fees on appeal‖ (emphasis added). The
trial court also ordered that each judgment ―shall bear interest at six percent (6%)
compounded annually from the date of judgment, for which let execution issue.‖
Richard did not raise his complaint about the post-judgment interest rate on
appellate fees in the trial court. Therefore, as discussed in our analysis of issue
three, his complaint is waived. See Morton, 369 S.W.3d at 677; Keith, 221 S.W.3d
at 173; Hachar, 153 S.W.3d at 145.
Turning to Richard’s argument that the trial court’s award was speculative
and advisory, we agree that the judgment for appellate attorney’s fees fails to
specify with certainty the date on which post-judgment interest should accrue.3
3
To the extent Richard argues that the award to Ruth was unconditional, we disagree.
The trial court may not grant a party an unconditional award of appellate attorney’s fees because
to do so could penalize a party for taking a meritorious appeal. Werley v. Cannon, 344 S.W.3d
527, 536 (Tex. App.—El Paso 2011, no pet.). The award to Ruth is predicated upon Richard’s
15
This court previously has held that post-judgment interest on appellate attorney’s
fees does not accrue until the appellate court issues its final judgment. Apache
Corp. v. Dynegy Midstream Servs., Ltd. P’ship, 214 S.W.3d 554, 566–67 (Tex.
App.—Houston [14th Dist.] 2006), rev’d in part on other grounds, 294 S.W.3d
164 (Tex. 2009); Protechnics Int’l, Inc. v. Tru-Tag Sys., Inc., 843 S.W.2d 734, 736
(Tex. App.—Houston [14th Dist.] 1992, no writ).4 We have explained that,
because an award of appellate attorney’s fees depends on the outcome of the
appeal, it is not a final award until the appeal is concluded and the appellate court
issues its final judgment. Apache Corp., 214 S.W.3d at 566–67; Protechnics Int’l,
Inc., 843 S.W.2d at 736.
We therefore partially sustain Richard’s fourth issue and modify that portion
of the trial court’s judgment to clarify that the interest on appellate attorney’s fees
does not begin until the appellate court’s judgment is final.
5. Transfer to Harris County
In his fifth issue, Richard contends the trial court erred in ordering the case
to be transferred to Harris County on its own motion and in the absence of any
pleadings requesting this relief. Richard requests that this court modify the
judgment to delete that portion of the trial court’s order. In response, Ruth again
argues that Richard has failed to preserve this issue, but concedes, subject to her
unsuccessful appeal and, therefore, is conditioned upon her success. We need not further modify
the judgment. Cf. Ansell Healthcare Prods., Inc. v. United Med., 355 S.W.3d 736, 745 (Tex.
App.—Houston [1st Dist.] 2011, pet. denied).
4
Ruth notes that other appellate courts have concluded that post-judgment interest on
appellate attorney’s fees should begin accruing when the appeal is perfected or when
proceedings begin in the supreme court. See, e.g., Moore v. Bank Midwest, N.A., 39 S.W.3d 395,
404 (Tex. App.—Houston [1st Dist.] 2001, pet. denied); O’Farrill Avila v. Gonzalez, 974
S.W.2d 237, 250 (Tex. App.—San Antonio 1998, pet. denied); Sw. Bell Tel. Co. v. Vollmer, 805
S.W.2d 825, 834 (Tex. App.—Corpus Christi 1991, writ denied), overruled on other grounds by
Hous. Lighting & Power Co. v. Auchan USA, Inc., 995 S.W.2d 668 (Tex. 1999). However, we
decline to reconsider our earlier precedent.
16
waiver argument, that the trial court may have exceeded its authority in ordering
the transfer.
In his reply, Richard argues in a cursory manner that he is challenging the
legal sufficiency of the evidence and therefore he was not required to preserve the
issue below. See Tex. R. App. P. 33.1(d). But he does not explain why he believes
this issue to be one of evidentiary sufficiency rather than an issue of law, nor does
he cite any authority so holding. We decline Richard’s invitation to characterize
this issue as one of legally insufficient evidence.
Richard also argues that the court’s action constitutes fundamental error that
may be raised for the first time on appeal. In support of this contention, Richard
cites generally to Family Code chapter 155 and Pirtle v. Gregory, 629 S.W.2d 919,
920 (Tex. 1982) (per curiam).
Except for fundamental error, appellate courts are not authorized to consider
issues not properly raised by the parties. Mack Trucks, Inc. v. Tamez, 206 S.W.3d
572, 577 (Tex. 2006) (citing In re B.L.D., 113 S.W.3d 340, 350–52 (Tex. 2003)).
Fundamental error exists in those instances in which error directly and adversely
affects the interest of the public generally, as that interest is declared by the statutes
or Constitution of Texas, or instances in which the record affirmatively and
conclusively shows that the court rendering the judgment was without jurisdiction
of the subject matter. Id.; Pirtle, 629 S.W.2d at 920. The Supreme Court of Texas
has explained that, in the context of civil appeals, fundamental error is a limited
doctrine used only in rare instances. In re B.L.D., 113 S.W.3d at 350–51 (declining
to review unpreserved jury-charge error in parental-rights termination case as
fundamental error).
Here, Richard argues that the trial court’s transfer on its own motion
constituted fundamental error ―because it violates the legislative scheme regarding
continuing, exclusive jurisdiction and the procedures for transferring venue of
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cases within the state.‖ Richard does not argue that the trial court making the
transfer lacked jurisdiction or the capacity to act as a court, nor does he argue that
that the trial court’s action adversely affects the public interest generally. Further,
the record demonstrates the trial court had jurisdiction over the parties and the
subject matter. See Tex. Fam. Code § 155.001; see also Alexander v. Russell, 699
S.W.2d 209, 210 (Tex. 1985) (per curiam) (holding that court rendering original
divorce decree and establishing original conservatorship for minor children
remained the court of continuing and exclusive jurisdiction despite an attempted
transfer that failed to comply with the Texas Family Code). Moreover, the alleged
error affects only the rights of the particular litigants in this case, and does not
adversely affect the interests of the public generally. See Newman v. King, 433
S.W.2d 420, 422 (Tex. 1968) (holding that failure to appoint a guardian ad litem
for a minor affects only the rights of the minor and the litigants in the case, not the
public generally). Therefore, we decline to apply the fundamental-error doctrine to
this issue. See In re B.L.D., 113 S.W.3d at 350–51; Mack Trucks, Inc., 206 S.W.3d
at 577. Because Richard failed to properly preserve the alleged error in the trial
court, we overrule his fifth issue.5
5
We express no opinion as to the effectiveness of the attempted transfer in this case.
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Conclusion
We overrule Richard’s first, second, third, and fifth issues, but sustain in part
Richard’s fourth issue. Accordingly, we modify the trial court’s judgment to clarify
that post-judgment interest on appellate attorney’s fees begins to accrue when the
appellate court issues a final judgment. We affirm the judgment as modified.
/s/ Martha Hill Jamison
Justice
Panel consists of Chief Justice Hedges and Justices Jamison and Busby.
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