Keim v. Anderson

• Decision Date: 03 April 1997
• Docket Number: No. 08-96-00004-CV,08-96-00004-CV
• Citation: 943 S.W.2d 938
• Parties: Jeffrey Reynald KEIM, Appellant, v. Kathleen C. ANDERSON, Appellee. Kathleen C. ANDERSON, Appellant, v. Jeffrey Reynald KEIM, Appellee.
• Court: Texas Court of Appeals

Page 938

943 S.W.2d 938

Jeffrey Reynald KEIM, Appellant, v. Kathleen C. ANDERSON, Appellee.

Kathleen C. ANDERSON, Appellant, v. Jeffrey Reynald KEIM, Appellee.

No. 08-96-00004-CV.

Court of Appeals of Texas,

El Paso.

April 3, 1997.

Mary C. Baker, Law Offices of Keith C. Gorman, El Paso, for Kathleen C. Anderson.

Jesus E. Tirrez, Diaz, Tirrez, Martinez & Associates, Austin, for Jeffrey Reynald Keim.

Mitzi T. Shannon, Kemp, Smith, Duncan & Hammond, P.C., El Paso, for Interested Party Carol Williams Keim.

Before BARAJAS, C.J., and McCLURE and CHEW, JJ.

OPINION

McCLURE, Justice.

Two separate appeals have been perfected from the final decree of divorce entered by the trial court below. By two points of error, Dr. Jeffrey Keim challenges the portion of the divorce decree reducing to judgment the trial court's order of interim attorney's fees to Kathleen C. Anderson. Anderson challenges the same judgment on the ground that the court denied her request for attorney's fees incurred in connection with bringing the petition in intervention. We reverse and remand.

FACTUAL SUMMARY

On February 17, 1994, Dr. Keim filed an original petition for divorce from Carol Williams Keim. Mrs. Keim retained Anderson to represent her. Temporary Orders were entered on June 29, 1994. Following discovery disputes and Dr. Keim's request for a jury trial ¹, Anderson filed on behalf of Mrs. Keim, motions for sanctions and interim attorney's fees. At a hearing in March of 1995, the trial court granted both motions and ordered Dr. Keim to pay to Anderson attorney's fees of $1,050, related to the discovery disputes, and interim attorney's fees in the amount of $5,000. ² The interim fees were to be paid in five installments of $1,000 each. Dr. Keim, however, made only one payment of $1,000.

On June 20, 1995, Anderson withdrew and new counsel was substituted for Mrs. Keim. A mere ten days later, on June 30, 1995, the parties appeared in open court with their attorneys, announced that they had entered into a Rule 11 Stipulation, and filed the written stipulation with the court. Pertinent to the issues before this Court, the written stipulation provided that each party would "pay debts incurred by them during the separation." It referenced neither the June 1994 temporary orders nor the order for interim attorney's fees. It did specify, however, that Dr. Keim would pay $3,500 in attorneys' fees to the firm of Kemp, Smith, Duncan & Hammond, of which Mrs. Keim's newly substituted attorneys were members. During the prove-up of the agreement, both parties testified that they had voluntarily entered into the agreement after consulting with their attorneys. While the testimony detailed the parties' agreements concerning conservatorship, support and the division of assets, no one mentioned the resolution of the temporary orders or the order for interim fees. The trial judge accepted the stipulation and granted the divorce.

Later that same day, Anderson, who was not present at the stipulation hearing, filed a petition in intervention seeking to enforce the trial court's prior order for interim attorney's fees. Dr. Keim did not file an answer to the petition in intervention nor did he file a motion to strike. On July 31, 1995, Mrs. Keim filed a motion for entry of judgment in accordance with the stipulation. A hearing on the intervention and the motion for entry of judgment was conducted on September 8, 1995. Dr. Keim objected to the court's consideration of the intervention, arguing that it was untimely since judgment had been previously rendered. The trial court overruled Dr. Keim's objection and took judicial notice of the prior hearings and orders. At the conclusion of the hearing, the trial court found that its prior order regarding the award of interim attorney's fees had not been withdrawn by the stipulation and ordered that it would be included in the final decree of divorce. The court denied Anderson's request for attorney's fees in connection with the preparation and filing of the petition in intervention. Thereafter, on September 19, the court entered a written final decree of divorce which contained the following relevant provisions:

1. Dr. Keim would pay all debts incurred solely by him during the separation.

2. Mrs. Keim would pay all debts incurred solely by her during the separation.

3. Dr. Keim would pay to Kemp, Smith, Duncan & Hammond the amount of $3,500 for attorneys' fees incurred on behalf of Mrs. Keim.

4. Any community liability not expressly assumed by a party under the decree would be paid by the party incurring the liability.

5. Dr. and Mrs. Keim were mutually discharged from all liabilities and obligations imposed by the June 29, 1994 Temporary Orders.

As we have previously noted, these latter two provisions did not appear in the Rule 11 Stipulation nor were they the subject of testimony during the prove-up of the agreement. Lastly, the decree added a provision reducing to judgment the prior order that Dr. Keim pay interim attorney's fees to Anderson and awarded judgment to Anderson for the $4,000 balance due. Dr. Keim filed a notice of limitation of appeal and a designation of points on appeal, in compliance with TEX.R.APP.P. 40(a)(4) and 53(d). Thereafter, Anderson perfected an independent appeal concerning the trial court's failure to award her attorney's fees for the filing and presentation of the petition in intervention.

In response to Dr. Keim's timely request, the trial court filed its findings of fact and conclusions of law, stating that: (1) the interim attorney's fees were for work performed by Anderson; (2) the Rule 11 agreement did not seek to supersede, waive, or vacate by mutual agreement the prior order awarding interim attorney's fees to Anderson; and (3) the trial court did not supersede, waive, or vacate the order on interim attorney's fees to Anderson. Dr. Keim does not challenge any of these findings on appeal. Nor does he assert as error the fact that the final decree does not comport with, and the trial judge lacked the authority to enter judgment deviating from, the Rule 11 Stipulation. Instead, he assigns as error the trial court's action in considering Anderson's intervention after it had rendered judgment, and the trial court's action in awarding fees to Anderson after she had withdrawn as counsel and abandoned her claim for attorney's fees. We address the second point first.

ABANDONMENT OF CLAIM

Dr. Keim purports to address both points of error together. Indeed, his entire brief of the argument encompasses two paragraphs in roughly one page of text. He contends in Point of Error No. Two that Anderson abandoned her claim for attorney's fees by withdrawing from representation of Mrs. Keim, and therefore, the trial court erred in rendering judgment for Anderson. He provides no argument or authority in support of this point of error. Failure to cite authority in support of a point of error on appeal waives the complaint. City of El Paso v. Zarate, 917 S.W.2d 326, 332 (Tex.App.--El Paso 1996, no writ); Romero v. Parkhill, Smith & Cooper, Inc., 881 S.W.2d 522, 529 (Tex.App.--El Paso 1994, writ denied); TEX.R.APP.P. 74(f). Point of Error No. Two is overruled.

CONSIDERATION OF PETITION IN INTERVENTION AFTER ORAL

RENDITION OF JUDGMENT

In Point of Error No. One, Dr. Keim asserts, citing First Alief Bank v. White, 682 S.W.2d 251, 252 (Tex.1984); Comal County Rural High School District No. 705 v. Nelson, 158 Tex. 564, 314 S.W.2d 956, 957 (1958); and Central Mutual Insurance Co. v. Dunker, 799 S.W.2d 334, 336 (Tex.App.--Houston [14th Dist.] 1990, writ denied), that the trial court erred in considering the petition in intervention without first setting aside the judgment that had been orally rendered on June 30, 1995. ³ Anderson asserts that Dr. Keim cannot prevail on appeal because he failed to answer the petition in intervention or file a motion to strike pursuant to TEX.R.CIV.P. 60.

The issues presented are: (1) whether the trial court's oral announcement at the conclusion of the June 30 hearing constitutes a rendition of final judgment within the meaning of First Alief Bank and Comal County; (2) whether the rule announced in First Alief Bank and Comal County has application in this case; and if it does; (3) whether the trial court set aside its prior judgment before considering the petition in intervention at the September 8 hearing; and (4) whether Dr. Keim waived this complaint by failing to answer the petition in intervention or file a motion to strike.

Was Judgment Orally Rendered at the June 30 Hearing?

Judgment is rendered when the trial court officially announces its decision in open court or by written memorandum filed with the clerk. S & A Restaurant Corp. v. Leal, 892 S.W.2d 855, 857 (Tex.1995); Samples Exterminators v. Samples, 640 S.W.2d 873, 875 (Tex.1982); Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 59 (Tex.1970). Rendition is distinguishable from the entry of judgment which is a purely ministerial act by which judgment is made of record and preserved. Arriaga v. Cavazos, 880 S.W.2d 830, 833 (Tex.App.--San Antonio 1994, no writ); Ex parte Gnesoulis, 525 S.W.2d 205, 209 (Tex.Civ.App.--Houston [14th Dist.] 1975, no writ). The words used by the trial court must clearly indicate the intent to render judgment at the time the words are expressed. S & A Restaurant, 892 S.W.2d at 858. The judge's intention to render judgment in the future cannot be a present rendition of judgment. S & A Restaurant, 892 S.W.2d at 858, quoting Reese v. Piperi, 534 S.W.2d 329, 330 (Tex.1976). The rendition of judgment is a present act, either by spoken word or signed memorandum, which decides the issues upon which the ruling is made. Id.

At the conclusion of the June 30 proceeding, the trial court stated the following:

The Court: I have gone through the stipulation. I have the Rule 11 Stipulation. I will grant the divorce as of this time on June 30, 1995. I will accept the stipulation, and I...