In the Matter of Marriage of Walston, No. 10-05-00193-CV (Tex. App. 5/9/2007)

• Decision Date: 09 May 2007
• Docket Number: No. 10-05-00193-CV.,10-05-00193-CV.
• Parties: IN THE MATTER OF THE MARRIAGE OF SUE WALSTON AND LARRY WALSTON.
• Court: Texas Court of Appeals

Page 1

IN THE MATTER OF THE MARRIAGE OF SUE WALSTON AND LARRY WALSTON.

No. 10-05-00193-CV.

Court of Appeals of Texas, Tenth District, Waco.

Opinion delivered and filed May 9, 2007

Appeal from the 19th District Court, McLennan County, Texas, Trial Court No. 92-3724-1.

Affirmed

Before Justice VANCE, Justice REYNA, and Judge SCOGGINS¹³

MEMORANDUM OPINION

FELIPE REYNA, Justice.

This is the fourth direct appeal from the divorce proceedings of Sue and Larry Walston.¹ In the latest trial, a jury: (1) determined the fair market value for each of about 100 assets held by the marital estate; (2) found that both parties had engaged in some tortious acts but refused to find that they had engaged in others; (3) found that Central Transportation Systems, Inc. had transported and stored the Walstons' personal property under an agreement with a receiver who acted on the Walstons' behalf; and (4) found that the Walstons owed Central Transportation $35,013 in transportation and storage fees and $5,000 in trial attorney's fees. The court's judgment largely corresponds to the jury's findings. Among other things, the judgment: (1) effects a partition of a Cessna airplane in which Sue and Larry were each found to have an undivided one-half separate property interest by decreeing that Larry had the right to purchase Sue's interest for $40,000; (2) divides the various community property assets between Sue and Larry; (3) awards $39,446² to Central Transportation for transportation and storage fees and trial attorney's fees to be paid out of community property funds in the court's registry; and (4) decrees that $800 of funds in the court's registry (to the extent any funds remained after Central Transportation was paid) be applied to pay an Internal Revenue Service bill for taxes owed on the interest accrued by the funds in the registry.

Sue contends in eight issues that:

(1) this Court lacks jurisdiction because the trial court's judgment is not final;

(2) the judgment is void because the trial judge is constitutionally disqualified;

(3) the court abused its discretion by sustaining the special exceptions filed by Larry's attorneys and dismissing her conspiracy claims against them;

(4) the court abused its discretion by denying her continuance motions;

(5) the court erred by awarding damages to Central Transportation;

(6) Section 117.054 of the Local Government Code, which permits a trial court clerk to retain 10% of any interest earned by funds in the court's registry, violates her right to due process;

(7) the court failed to divide the community estate in a just and right manner; and

(8) the jury question submitted on her conspiracy claim is erroneous.

We will affirm.

Finality of Judgment

Sue contends in her first issue that this Court does not have jurisdiction because the judgment is too indefinite and uncertain to constitute a final judgment. She argues that the judgment is too indefinite because disputes remain about what documentation she must sign before Larry's purchase of her one-half separate property interest in the Cessna can be effectuated. We disagree.

"After a full trial on the merits, the statement in a judgment that all relief not requested is denied signifies finality." Lehmann v. Har-Con Corp., 39 S.W.3d 191, 201 (Tex. 2001). The judgment in this case has such a statement, and "there is nothing to indicate that the trial court did not intend to finally dispose of the entire case." Moritz v. Preiss, 121 S.W.3d 715, 719 (Tex. 2003). Accordingly, we overrule Sue's first issue.

Constitutional Disqualification

Sue contends in her second issue that the judgment is void because the trial judge is constitutionally disqualified due to his service as counsel in the case.

Under article V, section 11 of the Texas Constitution, a judge is disqualified "when the judge shall have been counsel in the case." TEX. CONST. art. V, § 11. "Before a judge is disqualified on this ground, `it is necessary that the judge acted as counsel for some of the parties in [the] suit before him in some proceeding in which the issues were the same as in the case before him.'" In re O'Connor, 92 S.W.3d 446, 448 (Tex. 2002) (orig. proceeding) (per curiam) (quoting Lade v. Keller, 615 S.W.2d 916, 920 (Tex. Civ. App.-Tyler 1981, no writ)).

Sue contends that the trial judge is disqualified under this provision because he "advocated on Larry's behalf" in a post-judgment hearing regarding the documentation she must sign to effectuate Larry's purchase of her interest in the Cessna. The judge ruled as follows on Sue's motion to release funds Larry deposited in the registry as payment for her interest:

MOTION TO RELEASE FUNDS: The jury found the value of the airplane to be $80,000. It is undisputed that the parties each own an undivided one half separate property interest. The decree gave each party the option of purchasing the interest of the other party for $40,000. Mr. Walston exercised this option and placed that sum of money in the registry of the court to be paid to Mrs. Walston upon the occurrence of certain events. Although requested to release her interest in the Cessna, Mrs. Walston declines to do so and seeks to be paid the funds in the registry of the court without releasing her ownership interest. She takes the position that the family code has no application to this issue because the property issue is one of separate property and therefore § 9.007(c) does not apply to this issue.

The Court declines to sign any order or authorize the release of the purchase money to Mrs. Walston until such time as she relinquishes her interest as would be necessary in any such exchange or purchase and sale transaction. The Court finds no legal grounds for the position taken by Mrs. Walston and that her refusal to release her interest in the Cessna is both arbitrary and capricious and constitutes an abuse of the judicial system. The result of this conduct is to deprive Mr. Walston of both his purchase money and the use of the airplane which he had the right to purchase. Nevertheless enforcement is prevented by Family Code § 9.007(c) and cases cited hereinabove.³

The Court would urge the Court of Appeals in its wisdom to bring this portion of the case to a conclusion by: 1) order requiring Petitioner to sign the instruments attached hereto, or 2) referral for appropriate hearings concerning enforcement, sanctions and attorney fees, as their jurisdiction might permit.

Sue contends that the last paragraph constitutes a "plea on Larry's behalf" by the trial judge which is "a function of counsel." We disagree.

The trial judge clearly expressed his opinion that he agreed with Larry's position and disagreed with Sue's. Because this litigation has been ongoing since 1992, it is certainly understandable that the trial judge would have an interest in bringing it to a conclusion. We simply cannot agree that the judge "acted as counsel" for Larry by making the statements at issue. See O'Connor, 92 S.W.3d at 448. Thus, we overrule Sue's second issue.

Claims against Larry's Attorneys

Sue contends in her third issue that the court abused its discretion by sustaining the special exceptions filed by Larry's attorneys and dismissing her conspiracy claims against them.

Sue alleges in her sixth amended petition that Larry and his attorneys conspired to deprive her of her right to a hearing before an impartial tribunal, to deprive her of her right to a just and right division of the marital estate, to intentionally inflict severe emotional distress, and to impose duress on her. She makes the following factual allegations⁴ to support her conspiracy claims:

(1) During the 1993 trial, one of Larry's attorneys "participated in an improper ex parte communication with the trial judge";

(2) During the course of the 1994 appeal, one of Larry's attorneys "made false statements" to Sue's appellate counsel which prompted Sue's counsel to give "serious consideration to withdrawing from the case";

(3) The trial judge improperly "extended the receivership" to include the community assets located inside the Walstons' home and instructed the receiver to place those assets in storage at the request of the receiver and one of Larry's attorneys;

(4) One of Larry's attorneys assisted the receiver in preparing a false affidavit;

(5) One of Larry's attorneys contacted Sue's counsel before the July 1996 trial "and offered to pay her to withdraw from the case";

(6) Larry and one of his attorneys participated in an improper ex parte meeting with the trial judge on a Saturday in August 1996;

(7) One of Larry's attorneys filed a motion for release of funds from the court's registry supported by a false affidavit signed by Larry;

(8) Two of Larry's attorneys participated in an improper ex parte meeting with the elected trial judge, who later recused himself;

(9) One of Larry's attorneys had improper ex parte contact with the assigned trial judge;

(10) Larry's attorneys "knowingly and willfully participated in illegal acts and knowingly and willfully assisted and encouraged [Larry and the receiver] in the commission of illegal acts"; and

(11) Larry's attorneys conspired with Larry, the receiver, and the four district judges to deprive Sue of her rights by committing the acts listed above and by hiring a private investigator who followed Sue, observed her in her home, and sorted through her garbage.

Under Texas law however, an attorney generally has qualified immunity from suit by an opposing party for the attorney's conduct in the course of the litigation. See Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398, 405-06 (Tex. App.-Houston [1st Dist.] 2005, pet. denied).

Texas case law has discouraged lawsuits against an opposing counsel if the lawsuit is based on the fact that counsel represented an opposing party in a judicial proceeding. An attorney has a duty to zealously represent his clients within the bounds of the law. In fulfilling this duty, an attorney has...