Keith v. Keith

• Decision Date: 20 July 2006
• Docket Number: No. 01-04-01214-CV.,01-04-01214-CV.
• Citation: 221 S.W.3d 156
• Parties: Sharon Kay KEITH, Appellant, v. Randall Dean KEITH, Appellee.
• Court: Texas Court of Appeals

221 S.W.3d 156

Sharon Kay KEITH, Appellant, v. Randall Dean KEITH, Appellee.

No. 01-04-01214-CV.

Court of Appeals of Texas, Houston (1st Dist.).

July 20, 2006.

Herbert Lackshin, Steven Engelhardt, Houston, for Appellant.

Gus E. Pappas, Dabney & Pappas, Houston, for Appellee.

Panel consists of Justices TAFT, KEYES, and HANKS.

OPINION

TIM TAFT, Justice.

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.¹ 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.² 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" language³ 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,⁴ 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...