Sherer v. Sherer
| Decision Date | 04 January 2013 |
| Docket Number | No. 06-12-00023-CV,06-12-00023-CV |
| Parties | PATRICIA J. SHERER, Appellant v. JAMES RAY SHERER AND GLORIA JEAN SHERER (F/K/A GLORIA JEAN ROBERSON), INDIVIDUALLY AND JAMES RAY SHERER AS POWER-OF-ATTORNEY FOR BERTHA M. SHERER, Appellees |
| Court | Texas Court of Appeals |
Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Justice Carter
Patricia J. Sherer appeals the trial court's judgment awarding Gloria Jean Sherer, individually, and James Ray Sherer, individually and with power of attorney for Bertha M. Sherer,1 $72,891.21 in damages, attorney's fees in the amount of $18,531.36, and costs in the amount of $4,891.25.
James and Gloria sued their stepmother, Patricia, to recover property belonging to their grandmother, Bertha, held under the name of her son, J. Ray Sherer (Ray), who predeceased Bertha in 1999. Although the family members could not recall the reasons for this arrangement,2 Bertha's teacher retirement checks were deposited into a bank account under the name of Ray Sherer at the First National Bank of Bonham. In addition, Bertha provided Ray with investment money which he deposited in a Merrill Lynch account. From the beginning, the investment money was commingled with Ray's property.3
In 1994, Ray and Patricia set up a revocable trust called the "J. Ray Sherer and Patricia J. Sherer Trust" (Trust). Ray and Patricia were the primary beneficiaries of the Trust. Upon the deaths of Ray and Patricia, the Trust assets were to be distributed among the couple's children. The investment money Bertha gave to Ray in 1978 was commingled with the Trust assets.4 The Trust also designated Ray and Patricia as co-trustees and, upon the death of Ray in 1999, Patricia become the sole trustee of the Trust.5
After Ray passed away, Patricia sent Bertha a letter offering to tender to her $14,368.00 provided that she sign a release that the Trust did not have any assets belonging to her.6 Bertha refused to sign the release. A little more than four years later, Bertha, James, and Gloria brought suit against Patricia complaining that the Trust contained separate property of Ray, that Patricia had been selling real estate owned by the Trust, and that Patricia was converting the assets of the Trust into individual ownership to avoid the distribution clause of the Trust. James and Gloria sought Patricia's removal as trustee, and Bertha sought recovery of money owned by Bertha held by the Trust.
After a hearing at which the motions for summary judgment were considered along with other issues, the late Honorable Jim Dick Lovett rendered judgment that Patricia had notconverted any asset belonging to Bertha,7 ordered Patricia to make an annual accounting of the Trust to James and Gloria pursuant to the Texas Trust Code, and additionally made the following orders:
We will refer to this document as the First Judgment.
On February 9, 2006, the trial court held Patricia in contempt and ordered her to pay $14,368.00 by the end of the day. It is uncontested that Patricia made this payment. The contempt order, though, made it clear that this amount did not resolve the dispute. The order specifically provides, "[S]uch amount is subject to modification upon receipt and approval of the accounting to be tendered by the Constructive Trustee." Shortly after being held in contempt ofcourt, the parties executed a Rule 11 agreement that was filed with the court on March 10, 2006. In this agreement, the parties "stipulate that the beginning balance for the purpose of accounting is $11,825.00, which was the beginning balance as of October 27, 1978, deposited in either the Bank account or Merrill Lynch account" and modified the terms for the accounting to permit "a recap of monthly totals . . . in lieu of providing a more detailed accounting as provided by the Texas Trust Code." The Rule 11 agreement, though, did not modify the time period covered by the accounting. On March 9, 2006, Patricia's accountant provided an accounting of the bank account and the Merrill Lynch account from 1978 until December 31, 1998. As of December 31, 1998, the two commingled accounts had a combined balance of $78,375.00. James and Gloria sent, on June 14, 2006, a demand letter for $145,935.00.8
Bertha passed away in 2007, and the case apparently languished for several years.
On October 26, 2010, James and Gloria filed a "Motion to Enforce the Declaratory Judgment." At the hearing, James and Gloria presented expert testimony by Brian K. Cunningham, a certified public accountant, who testified that a conservative rate of return for the $78,375.00 in the Merrill Lynch account from 1999 until 2011 would be an increase of $56,426.79. Cunningham also testified that a conservative rate of return on the $14,368.00 from 1999 until 2011 would be an increase of $9,265.34.
Patricia presented expert testimony of Steven W. Mohundro, a certified public accountant. Mohundro testified that the bank account at First National Bank of Bonham was a "cash management account" for the Merrill Lynch account and, as of December 31, 1998, had abalance of $30,076.91. The Merrill Lynch account had a securities value of $48,299.00 for a total value of $78,375.00. Mohundro also testified that on November 15, 1978, there was an initial deposit of $23,950.37. Mohundro, though, testified that assuming Bertha did not accumulate any savings from her retirement and social security checks that were deposited into the bank account9 and assuming Bertha paid rent to Ray,10 the $11,825.00 would have been depleted.
On January 12, 2012, the current district judge signed an order awarding Bertha's estate, James, and Gloria $72,891.21 in damages, attorney's fees in the amount of $18,531.36, and costs in the amount of $4,891.25. We will refer to this order as the Second Judgment.
In her first two issues, Patricia argues that the trial court lacked jurisdiction to render the Second Judgment. Patricia also argues that the Second Judgment violates the one judgment rule and, consequently, is void.11 Alternatively, Patricia claims the trial court erred in granting reliefthat exceeded the supplemental ancillary relief available under the Texas Declaratory Judgment Act.12
The majority of Patricia's brief assumes that the First Judgment was a final judgment. When discussing the application of the statute of limitations, Patricia provides an alternative argument that the First Judgment was not final. According to James and Gloria, the proceeding being appealed was an enforcement action.13 Alternatively, James and Gloria argue that all of the issues disposed of in the First Judgment became final, but the issues not decided in the First Judgment did not become final.
We first note that the First Judgment cannot be final as to some issues but not other issues. Subject to limited exceptions not present in this case,14 there can only be one final judgment in a case. TEX. R. CIV. P. 301 (); see Lehmann, 39 S.W.3d at 192;Cavazos v. Hancock, 686 S.W.2d 284, 286 (Tex. App.—Amarillo 1985, no writ); see also Glunz v. Hernandez, 908 S.W.2d 253, 257 (Tex. App.—San Antonio 1995, writ denied). An interlocutory judgment becomes final when it merges into the final judgment disposing of the entire case.15 Thus, the issue before this Court is whether the First Judgment was final as to all issues or whether the First Judgment became final only after the trial court rendered the Second Judgment.
We note that the First Judgment was titled "Final Declaratory Judgment" and contained a "Mother Hubbard" 16 clause. At one time, the Texas Supreme Court took the position that the inclusion of a Mother Hubbard clause could cause an otherwise interlocutory judgment to be final. Mafrige v. Ross, 866 S.W.2d 590, 592 (Tex. 1993), overruled in part by Lehmann, 39 S.W.3d at 204. The Texas Supreme Court, however, rejected this approach a decade ago. See Lehmann, 39 S.W.3d at 192-93.
A final judgment17 is one that disposes of all parties and all issues in a lawsuit.18 Id. at 200; Schlipf v. Exxon Corp., 644 S.W.2d 453, 454 (Tex. 1982) (per curiam). "Finality 'must beresolved by a determination of the intention of the court as gathered from the language of the decree and the record as a whole, aided on occasion by the conduct of the parties.'" Lehmann, 39 S.W.3d at 203 (quoting 5 Ray W. McDonald, Texas Civil Practice § 27:4[a], at 7 (John S. Covell, ed., 1992 ed.)). The Texas Supreme Court has explained:
But 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. It is not enough, of course, that the order or judgment merely use the word "final"....
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