Miss Deadline to Appeal, and Risk Dismissal

30-DAY DEADLINE TO FILE NOTICE OF APPEAL MISSED - UNTIMELY FILING WILL RESULT IN ORDER DISMISSING THE APPEAL

Normally anyhow. There is a grace period - 15 extra days - but a proper motion should be filed within that time period with a good reason or excuse. After that, it's too late, unless the requirements for restricted appeal are satisfied.

PER CURIAM MEMORANDUM OPINION
OF THE 14TH COURT OF APPEALS

This is an attempted appeal from a judgment signed March 10, 2008. Appellant's notice of appeal was filed October 19, 2009.

The notice of appeal must be filed within thirty days after the judgment is signed when appellant has not filed a timely motion for new trial, motion to modify the judgment, motion to reinstate, or request for findings of fact and conclusions of law. See Tex. R. App. P. 26.1.

Appellant's notice of appeal was not filed timely. A motion for extension of time is necessarily implied when an appellant, acting in good faith, files a notice of appeal beyond the time allowed by Rule 26.1, but within the fifteen-day grace period provided by Rule 26.3 for filing a motion for extension of time. See Verburgt v. Dorner, 959 S.W.2d 615, 617-18 (Tex. 1997) (construing the predecessor to Rule 26). Appellant's notice of appeal was not filed within the fifteen-day period provided by Rule 26.3

On February 3, 2010, notification was transmitted to all parties of the Court's intent to dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a). Appellant's response fails to demonstrate that this Court has jurisdiction to entertain the appeal.

Accordingly, the appeal is ordered dismissed.

Hendrix v. Bryant (pdf) (Tex.App.- Houston [14th Dist.] Mar. 4, 2010)(per curiam)
(untimely notice of appeal; no timely motion for extension for additional 15 days)
DISMISSED: Per Curiam
Before Justices Frost, Boyce and Sullivan
14-09-00897-CV Jake Hendrix v. Cheryl Bryant
Appeal from 247th District Court of Harris County
Trial Court Judge: Judge Bonnie Crane Hellums

RELATED TERMS AND PHRASES: appellate time-table, deadline for notice of appeal when no post-judgment motion and no findings or facts and conclusions of law are filed, motion for extension of time to file notice of appeal, invoke the appellate court's jurisdiction, consequences of failure to meet deadline

Right to jury trial grounded in the constitution, but not automatic

A per curiam opinion issued yesterday by the 1st Court of Appeals provides a useful reminder that even constitutional rights in the litigation process can be waived. The Plaintiff did not timely make a jury demand, or pay the jury fee, and thus waived the right to have the case tried to and decided by a jury.

No reversible error. Take-nothing judgment affirmed.

FROM THE OPINION BY THE CHIEF JUSTICE:

Thomas’s case was called for trial on July 5, 2007. It is undisputed that Thomas had neither requested a jury trial, nor paid a jury fee, prior to the day of trial. Thomas requested a jury trial in open court, which the trial court denied. Alternatively, Thomas requested a motion for continuance, which the trial court also denied. The case was then tried, with Thomas refusing to prosecute her case further. After Thomas put on no evidence, Radioshack and Reyes moved for a judgment in their favor. The trial court rendered judgment that Thomas take nothing on her claims against Radioshack and Reyes. This appeal followed.

REQUEST FOR JURY TRIAL

In her first issue on appeal, Thomas contends the trial court erred in denying her request for a jury trial. We review a trial court’s refusal to grant a jury trial under an abuse-of-discretion standard. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996). Rule 216(a) of the Texas Rules of Civil Procedure states that “[n]o jury trial shall be had in any civil court, unless a written request for a jury trial is filed with the clerk of the court a reasonable time before the date set for trial of the cause on the non-jury docket, but not less than thirty days in advance.” Tex.R. Civ. P. 216(a). Here, Thomas’s request for a jury was made on the day of trial, not at least thirty days in advance as required by Rule 216(a).

Nevertheless, Thomas argues that she is constitutionally entitled to a jury trial, and that this Court should conduct a de novo review of the trial court’s denial of a jury trial. While Thomas may have a constitutional right to a jury trial, such a right can be waived by failing to comply with Rule 216(a). See In re Prudential Ins. Co., 148 S.W.3d 124, 130 (Tex. 2004) (stating that jury trial can be waived if prerequisites of rule 216 not met). By not filing her request for a jury trial in a timely manner, Thomas has waived her right to a jury. We see no need to depart from the abuse-of-discretion standard.

We overrule issue one.

Thomas v Radioshack Corp. (Tex.App.- Houston [1st Dist.] Mar. 4, 2010)(Radack) (request for jury trial, motion for continuance properly denied, oral motion to continue trial date was insufficient)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Alcala and Higley
01-08-00400-CV Arva Thomas v. Radioshack Corporation d/b/a Radioshack #8002 and Danica Reyes, Employee in her Official and Individual Capacity
Appeal from 11th District Court of Harris County
Trial Court Judge: Hon. Mark Davidson

RELATED TERMS: right to trial by jury of peers in civil cases, procedure and deadline to assure jury trial, get on the jury docket, deadline to file jury demand, requirement to pay jury fee, consequences of failure to timely request trial by jury, and pay required jury fee

Another Appeal Dissed for Lack of a Final Appealable Order

RECURRING REASON FOR JURISDICTIONAL DISMISSAL:

NO FINAL JUDGMENT OR OTHERWISE APPEALABLE ORDER

This time, the First Court of Appeals dismisses an attempted appeal from an order entered in a family court case that was not final and for which interlocutory appellate review was not authorized by statute.

FROM THE PER CURIAM OPINION:

On December 31, 2009, the Clerk of this Court sent appellant a notice letter advising him that the August 25, 2009 order he was appealing appeared to be an interlocutory one, not legally authorized to be appealed. In the letter, the Clerk advised appellant that the Court might dismiss the appeal for want of jurisdiction, unless, in a written response, he provided a meritorious explanation showing that the Court had jurisdiction of the appeal. Appellant has filed his response, conceding that the appeal must be dismissed for want of jurisdiction.

The general rule, with a few mostly statutory exceptions, is that an appeal may be taken only from a final judgment. Kossie v. Smith, No. 01-08-00065-CV, 2009 Tex. App. LEXIS 1739 at *1 (Tex. App.--Houston [1st Dist.] March 9, 2009, no pet.) (mem. op.) (citing Lehmann v. Har-Con Corp. 39 S.W.3d 191, 195 (Tex. 2001)). Interlocutory orders may be appealed only if allowed by statute. Kossie, at *1(citing Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001)). The August 25, 2009 interlocutory order from which appellant has appealed is not an order that is made appealable by statute. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a) (Vernon 2008). Thus, we lack subject-matter jurisdiction over the interlocutory order that appellant has appealed. See Kossie at *2 (dismissing appeal of interlocutory order sustaining contest to affidavit of indigence); Kilsby v. Mid-Century Ins. Co. of Tex., No. 14-07-00981-CV, 2008 Tex. App. LEXIS 2380, (Tex. App.--Houston [14th Dist.] Apr. 3, 2008, no pet.) (memo op.) (dismissing appeal of interlocutory order sustaining challenge to affidavit of inability to pay costs); see also In re K. J. M., No. 02-08-038-CV, 2008 Tex. App. LEXIS 1924 (Tex. App.--Fort Worth Mar. 13, 2008, no pet.) (memo op.) (dismissing appeal of interlocutory order sustaining challenge to indigency affidavit and denying appointment of counsel to represent appellant in habeas challenge to order of contempt in child-support-enforcement action).

We dismiss the appeal for lack of subject-matter jurisdiction. Any pending motions are overruled as moot.

Tilotta v. Smith-Tilotta (Tex.App.- Houston [1st Dist.] March 4, 2010)(per curiam) (no final order to appeal from, interlocutory appeal not authorized) DISMISS APPEAL: Per Curiam
Before Justices Jennings, Hanks and Bland
01-09-00817-CV Michael Tilotta v. Dewana Smith-Tilotta
Appeal from 257th District Court of Harris County
Trial Court Judge: The Honorable Judy L. Warne

RELATED TERMS & PHRASES: interlocutory appeal (ILA), finality of order or judgment required for regular appeal, dismissal of appeal for want of jurisdiction (DWOJ), no appellate jurisdiction in absence of appealable order

Property Tax Protester Must Have Standing to Bring Judicial Review Suit Contesting Appraisal of Real Estate

A Houston court of appeals reiterated in two cases decided today that a property tax protest - and subsequent judicial review suit - challenging the Appraisal District's valuation of real property cannot be brought by a person or entity that did not own the property at the relevant point in time (and was not an agent or lessee of the owner), and that Rule 28 cannot be used to substitute the true owner once litigation is under way.

The issue of who has the right to pursue administrative remedies, and - subsequently file suit against the appraiser/appraisal district for judicial review - is one of standing, and thus jurisdictional. The appellate panel of the 1st Court of Appeals affirms dismissal of both suits by the Harris County district courts in per curiam opinions, citing to an earlier case involving the same legal issues, in which the Fourteenth Court of Appeals (which also sits in Houston), issued a signed opinion. [click case name to read opinion]

Scott Plaza Associates Ltd v. HCAD
(Tex.App.- Houston [14th Dist.] March 4, 2010)(per curiam) (HCAD property tax appeal, plaintiff did not own property and did not have standing to bring judicial review suit of property tax appraisal, substitution under rule 28 not available, order granting plea to the jurisdiction affirmed)
Steward did not own the property as of January 1, 2007. Steward did not claim rights to protest under the Property Tax Code as either a lessee or an agent. Therefore, Steward lacked standing to pursue judicial review as a “party who appeals” under section 42.21(a). The record does not reflect that Scott Plaza pursued its right of protest as the actual property owner. According to the record, Scott Plaza was not named as a party until May 22, 2009 when Steward filed a first amended original petition. Therefore, the Review Board had not determined a protest by the actual property owner, Scott Plaza, upon which Scott Plaza could premise a right to appeal as the property owner.
AFFIRMED: Per Curiam
Before Justices Brock Yates, Anderson and Seymore
14-09-00707-CV Scott Plaza Associates LTD, commonly known as J & Friedman S. Steward v.
Harris County Appraisal District
Appeal from 55th District Court of Harris County

Woodway Drive LLC v. HCAD
(Tex.App.- Houston [14th Dist.] March 4, 2010)(per curiam)
(owner must file property tax protext judicial review suit; dismissal for want of jurisdiction affirmed;no substitution of new owner under Rule 28)
AFFIRMED: Per Curiam
Before Justices Brock Yates, Seymore and Brown
14-09-00524-CV Woodway Drive LLC aka First Reliance Metering LP v.
Harris County Appraisal District Appeal from 189th District Court of Harris County
Trial Court Judge: William R. Burke JR.

PRIOR CASE ADDRESSING STANDING FOR TAX PROTEST PURPOSES AND ATTEMPTED SUBSTITUTION UNDER TRCP 28 (with signed opinion by Justice Frost):

BACM 2002 PBs Westpart Dr LP v. HCAD (Tex.App.- Houston [1st Dist.] Jul. 21, 2009)(Frost)
(prior owner did not have standing to bring ad valorem tax protests appeal, judicial review suit, assumed name theory as basis for substitution of correct party rejected, no standing - no subject matter jurisdiction).
AFFIRMED: Opinion by Justice Frost
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-08-00493-CV BACM 2002 PB2 Westpark Dr LP, Houston Parkwest Place Ltd, as the Property Owners and the Property Owners v. Harris County Appraisal District and the Appraisal Review Board of Harris
County Appraisal District Appeal from 11th District Court of Harris County
Trial Court Judge: Mark Davidson

RELATED TERMS: property tax appraisal appeals, tax protests, challenging valuation of real property, judicial review suit, exhaustion of administrative remedies, standing to invoke legal remedies, prosecute law suit TRCP 28, Tex. R. Civ. P. 28, substitution of parties, common name, assumed name, doing business as (dba)

Spoliation no reason to overturn summary judgment for grocery store in slip & fall premises liability lawsuit

First Court of Appeals, in opinion by Justice Elsa Alcala, rejects spoliation of evidence as ground to preclude summary judgment for the defendant in premises liability lawsuit. Defendant store did not preserve complete video recording of the slip & fall incident upon which the lawsuit was based. While acknowledging that the tape recording would be relevant, the Court opines that absence of the footage did not harm Defendant.

Clark v. Randalls Food (Tex.App.- Houston [1st Dist.] Feb. 25, 2010)(Alcala) (trial court's refusal to find spoliation by Defendant and take-nothing judgment affirmed)

FROM THE OPINION BY JUSTICE ELSA ALCALA

Applicable Law Concerning Spoliation

The act of spoliation refers to destruction of evidence relevant to a case. Buckeye Ret. Co. v. Bank of Am., N.A., 239 S.W.3d 394, 401 (Tex. App.--Dallas 2007, no pet.). Trial courts have broad discretion in taking measures to address spoliation of evidence that include "measures ranging from a jury instruction on the spoliation presumption to, in the most egregious cases, death penalty sanctions." Trevino v. Ortega, 969 S.W.2d 950, 953 (Tex. 1998). "As with any discovery abuse or evidentiary issue, there is no one remedy that is appropriate for every incidence of spoliation; the trial court must respond appropriately based upon the particular facts of each individual case." Id.

The inquiry as to whether a spoliation sanction or presumption is justified requires a court to consider (1) whether there was a duty to preserve evidence, (2) whether the alleged spoliator breached that duty; and (3) whether the spoliation prejudiced the non-spoliator's ability to present its case or defense. Adobe Land Corp., 236 S.W.3d at 357; Offshore Pipelines, Inc. v. Schooley, 984 S.W.2d 654, 666 (Tex. App.--Houston [1st Dist.] 1998, no pet.).

* * *

Prejudice

The final step of our inquiry focuses on whether Randalls's spoliation prejudiced Clark's ability to present his case. See Schooley, 984 S.W.2d at 666 (citing Trevino, 969 S.W.2d at 954-55 (Baker, J., concurring); Adobe Land Corp., 236 S.W.3d at 360. "[T]he spoliating party is [ ] free to attempt to show that . . . no prejudice" resulted from the negligently destroyed evidence." Trevino, 969 S.W.2d at 958 (Baker, J., concurring). In making this determination, we look to a variety of circumstances such as (a) the harmful effect of the missing evidence, and (b) the availability of other evidence to take the place of the missing information. Adobe Land Corp., 236 S.W.3d at 360; Schooley, 984 S.W.2d at 667.

a. Harmful Effect of Missing Evidence

Having already determined the footage not preserved by Randalls was relevant to the premises liability lawsuit, we must address how the failure to preserve it has prejudiced Clark's lawsuit. In determining whether a party was harmed by spoliated evidence, we consider "whether the destroyed evidence supports key issues in the case." Trevino, 969 S.W.2d at 958 (Baker, J., concurring).

The trial court could reasonably have determined that the missing videotape footage was not evidence that supports key issues in the case because the key issue here is whether there was liquid on the floor, and the camera was unable to capture whether there was liquid on the floor and when it may have gotten there. For example, if the tape showed an employee performing a walk-though one hour before the event, that would not reveal whether the employee saw the liquid because the tape of Clark's fall does not show any visible liquid. Similarly, if the tape showed no employee was seen performing a walk-through one hour before the event, a walk-though could still have occurred at that area with the employee standing nearby but outside of the camera range. The trial court could have reasonably determined that because the counter blocks the camera's visibility of the floor where Clark fell, the camera would not have captured the liquid falling on the floor. Although the tape is relevant, the trial court could have reasonably determined it had limited value in the case because the tape is unclear, it does not show any liquid on the part of the floor that can be seen on the tape, and due to the angle of the camera and the height of the counter, it does not show the part of the floor where Clark fell.

As noted above, the primary significance of this tape is that it would show whether another person at this location slipped prior to Clark at the same location. But nothing in our record suggests that another person slipped there before Clark. The pharmacist, the other people working at the pharmacy counter, and the store manager do not mention any other complaints about people slipping there. The trial court could reasonably have determined that the tape would not show anyone else slipping at the location before Clark because the other evidence in the case fails to suggest that occurred.

b. Availability of Other Evidence

As Randalls points out, there was evidence other than the tape to show the condition of the floor. The pharmacist and Clark could each testify about the condition of the floor when Clark fell. The store manager described the walk-through procedures to check the condition of the floor in the hour preceding the fall.
Even if the tape had been produced and the walk through was not visible on the tape, the walk though could have been conducted outside of camera range, given that the stationary camera captured only a limited range. As noted above, the primary significance of this tape is that it would show whether another person at this location slipped prior to Clark at the same location, but the tape is not the only evidence that would show that, and the people working in that area did not mention any complaints about people slipping there. The trial court, therefore, could have reasonably determined the unavailable footage was cumulative of other competent evidence that Clark could use in place of the destroyed evidence. See Trevino, 969 S.W.2d at 958 (Baker, J., concurring).

The trial court could have reasonably determined Randalls was not negligent in its failure to preserve more of the tape of the events preceding the fall. Importantly, Clark never asked Randalls to preserve the tape until after the tapes had been destroyed pursuant to Randalls policy. Randalls, sua sponte, preserved the tape in the anticipation of litigation by Clark. Randalls had to independently surmise how much of the footage Clark would want, without the benefit of any instructions or request from Clark.

We conclude that based on the arguments and evidence presented, the trial court could have reasonably determined the videotaped footage would not show whether liquid was on the floor, how long it was on the floor, whether the walk through was done, and when it was done. Based on the arguments and evidence presented in this case, we hold the trial court did not abuse its discretion by finding no prejudice resulted from Randalls's failure to preserve the footage of events preceding the fall. See, e.g., Ordonez v. M.W. McCurdy & Co., 984 S.W.2d 264, 274 n.13 (Tex. App.--Houston [1st Dist.] 1998, no pet.) (discretion not abused in denying spoliation instruction where evidence showed log books were disposed of pursuant to company policy and missing data not shown to be harmful).

We hold the trial court did not abuse its discretion in refusing to grant a spoliation finding. Because the challenge to the spoliation finding is the sole ground presented in this appeal to challenge the summary judgment ruling, we affirm the trial court's take-nothing summary judgment. See Adobe Land Corp., 236 S.W.3d at 357 (citing Aguirre, 2 S.W.3d at 457); Sowell, 263 S.W.3d at 38.

We overrule Clark's sole issue.

Clark v. Randalls Food (Tex.App.- Houston [1st Dist.] Feb. 25, 2010)(Alcala)
(premises liability suit, spoilation of evidence claim rejected; defendant did not preserve complete video
recording of slip & fall incident in store)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Elsa Alcala
01-08-00732-CV Ralph Clark v. Randalls Food
Appeal from 157th District Court of Harris County
Trial Court Judge: Hon. Randy Wilson

Appeal from Partial Summary Judgment in Bill-of-Review Proceeding Dismissed for Want of Jurisdiction

First Court of Appeals finds that it does not have jurisdiction to entertain merits of attempted appeal from a partial summary judgment in a bill of review suit, absent proper severance. Bill of review petition in family law dispute challenged two separate orders in a single case, and trial court granted summary judgment only with respect to one, leaving the second one pending and precluding a final judgment from with a regular appeal could properly be taken. No statute otherwise authorized interlocutory appeal from the partial summary judgment order.

MEMORANDUM OPINION BY JUSTICE JIM SHARP

Appellant, Marsha Whyte, is appealing the trial court’s grant of appellee’s, Lawrence Robert Whyte’s, motion for partial summary judgment. We dismiss for want of jurisdiction.

BACKGROUND

When Marsha and Lawrence were divorced in 1998, they were named joint managing conservators of N.W. (trial court cause number 1995-44409). Lawrence subsequently filed a petition seeking to modify custody. He also filed a second, separate, petition for interference with child custody. Both petitions were filed under cause number 1995-44409. In 2001, the trial court granted Lawrence’s first petition, modified the Whytes’ divorce decree and awarded Lawrence full custody of N.W. (“2001 Custody Order”). In 2002, the trial court granted Lawrence’s motion to sever his pending petition for interference with child custody from cause number 1995-44409 and move it into a separate cause number. The next year, the trial court awarded Lawrence monetary damages against Marsha in the severed suit for interference with child custody (“2003 Interference Judgment”).[1] Marsha, who did not enter an appearance in either proceeding, filed an Original Petition for Bill of Review in 2004 (trial court cause number 2004-51912) asking the trial court to set aside both the 2001 Custody Order and the 2003 Interference Judgment. Three years later, in 2007, she filed her First Amended Petition for Bill of Review, which is substantively identical to her original petition. Lawrence then filed a motion for partial summary judgment in the Bill of Review case with respect to the 2003 Interference Judgment only. On August 8, 2008, the trial court granted Lawrence’s motion for partial summary judgment. Marsha is now attempting to appeal that order. Lawrence has filed a motion to dismiss Marsha’s appeal for lack of jurisdiction.

JURISDICTION

As a preliminary matter, we address whether this court has jurisdiction with respect to Marsha’s appeal of the trial court’s granting of Lawrence’s motion for partial summary judgment in her bill of review case. A bill of review is an independent, equitable proceeding to set aside a judgment that is not void on the face of the record but is no longer appealable or subject to a motion for new trial. See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). “[A] bill of review is a separate proceeding from the underlying suit.” Ross v. Nat’l Ctr. for the Employment of the Disabled, 197 S.W.3d 795, 798 (Tex. 2006) (per curiam). Accordingly, we evaluate our jurisdiction over this appeal with respect to the bill of review itself, rather than the underlying suit. See In re L.N.M., 182 S.W.3d 470, 474 (Tex. App.—Dallas 2006, no pet.) (holding that appellate court jurisdiction with respect to appeal of denial of bill of review seeking to set aside termination order is to be determined under general rules of appellate procedure).

With few exceptions, an appeal may only be taken from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). When there has been no conventional trial on the merits, an order or judgment is not final for purposes of appeal unless it actually disposes of every pending claim and party or clearly and unequivocally states that it finally disposes of all claims and parties. Id. at 205. Here, the August 8, 2008 order being appealed granted Lawrence’s motion for partial summary judgment with respect to the 2003 Interference Judgment only; the order did not dispose of, nor did it state that it disposed of, Marsha’s claim with respect to the 2001 Custody Order.

Marsha contends that the August 8, 2008 order is a final order with respect to the 2003 Interference Judgment and that severance of her 2001 Custody Order claim is unnecessary to render the order final because the 2003 Interference Judgment cause of action had already been severed (2002) from the 2001 Custody Order cause of action. Although both the 2003 Interference Judgment and the 2001 Custody Order are final and were appealable at the time they were issued, Marsha is not attempting to directly appeal either of these judgments. Instead, Marsha is attempting to have both set aside through a separate, independent proceeding—a bill of review. See King Ranch, Inc., 118 S.W.3d at 751. While Marsha could have filed separate bills of review, she chose instead to combine her challenges to both the 2003 Interference Judgment and the 2001 Custody Order together into one bill of review (trial court cause number 2004-51912). In doing so, she filed a single petition that raised two separate claims. Although an order disposing of one of those two claims is interlocutory, it may be rendered final if the disposed of claim is later severed. The record before us reflects that there has been no severance of the two claims raised in this bill of review proceeding (trial court cause number 2004-51912) and no disposition of Marsha’s remaining cause of action for a bill of review relating to the 2001 Custody Order. Accordingly, the August 8, 2008 order is a non-appealable, interlocutory order.

Appellant does not cite, nor have we found, any statutory basis for our jurisdiction to consider her interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a) (Vernon Supp. 2009) (listing interlocutory orders from which interlocutory appeal may be taken); Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992) (holding that Texas appellate courts only have appellate jurisdiction over appeals from final orders or judgments, unless statute permits appeal from interlocutory order). Accordingly, we do not have jurisdiction to consider this appeal. See Tex. R. App. P. 42.3(c) (allowing involuntary dismissal of appeal for lack of jurisdiction upon party’s motion).

We grant Lawrence’s motion to dismiss.

Whyte v. Whyte (Tex.App.- Houston [1st Dist.] Feb. 25, 2010)(Sharp)
(bill of review, partial summary judgment, no interlocutory appellate jurisdiction)
DISMISS APPEAL: Opinion by Justice Sharp
Before Justices Keyes, Sharp and Massengale
01-08-00834-CV Marsha Whyte v. Lawrence Whyte
Appeal from 247th District Court of Harris County
Trial Court Judge: Hon. Bonnie Hellums

TAGS: Dismissal for want of jurisdiction (DWOJ) | interlocutory appeal not authorized |

Property division in divorce from foreign tag-along spouse affirmed

WHEN GENDER ROLES ARE REVERSED: CAREER WIFE VS. HOUSE-HUSBAND

Female petroleum engineer's appeal of property division in divorce from nonworking spouse fails. Trial court considered evidence that husband had made career sacrifice for the marriage and followed wife on work assignments to several foreign countries on a spouse visa. Wife also failed to rebut community property presumption and trace separate-property funds to support reimbursement claim against the marital (community-property) estate.

MEMORANDUM OPINION BY JUSTICE JEFF BROWN

Appellant Tammy C. Jensen appeals the property division in a divorce case. Tammy contends that the evidence does not support several of the trial court’s findings of fact and that these findings resulted in a manifestly unjust and unfair property division. She also contends that the trial court abused its discretion by awarding Barry Jensen one-half of the shares of stock from one of her accounts while allocating all of the associated debt to her and by denying her claim for reimbursement of her separate funds used for the down payment on their residence. We affirm.

I

Tammy and Barry met in July 2001 and were married on July 19, 2003. Their only child was born on July 7, 2004. The Jensens separated in May 2007, and were granted a divorce on November 20, 2007.

Tammy and Barry are both Canadian citizens. When the couple met, Tammy had a degree in petroleum engineering and had been working for Schlumberger for three years. Barry had been working as a credit analyst with DaimlerChrysler Financial in Canada for twelve years. Barry resigned his position before he married Tammy, and after they were married, they moved to Brazil, where Tammy was working. Tammy’s job required that she travel frequently. During their marriage, the couple lived in four different countries—Brazil, Trinidad and Tobago, France, and the United States. In 2006, Tammy accepted a job offer with Hess Corporation in Houston and the couple purchased a home in Fort Bend County. Throughout the marriage, Tammy worked continuously, except during her maternity leave, but Barry remained unemployed.

In May 2007, Barry left Tammy and their child and went to Canada. Shortly after that, he returned to Fort Bend County and petitioned for divorce. Tammy filed a counter-petition. Issues concerning the child and the property division were tried in a four-day bench trial. On February 28, 2008, the trial court signed the final decree of divorce. The trial court also made findings of fact and conclusions of law. The trial judge signed an amended final decree of divorce on September 9, 2008. On appeal, Tammy challenges only the property division.

II

Tammy raises four issues: (1) the evidence does not support the trial court’s findings of fact 12.a, d, f, and i concerning Barry’s employment decisions and employment opportunities; (2) the trial court’s erroneous and unsupported findings resulted in a manifestly unjust and unfair division of property; (3) the trial court erred in awarding Barry one-half of her shares of stock from her Mellon One account while allocating one-hundred percent of the debt encumbering the account to her; and (4) the trial court erred in evaluating her claim for reimbursement of $60,000 that she paid from separate funds for their residence. We will address the first three issues together, as Tammy does, and separately address her fourth issue concerning reimbursement.

III

A

The Texas Family Code requires that the trial court “shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.” Tex. Fam. Code Ann. § 7.001 (Vernon 2006). The trial court has broad discretion when dividing the marital estate. Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex. 1985). We presume that the trial court did not abuse its discretion in dividing the estate, and we will not disturb the division on appeal unless appellant demonstrates a clear abuse of discretion. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). The trial court’s ultimate division need not be equal, so long as it is equitable and so long as the court has some reasonable basis for an unequal division. Zieba v. Martin, 928 S.W.2d 782, 790 (Tex. App.—Houston [14th Dist.] 1996, no writ) (op. on reh’g).

A trial court abuses its discretion when it acts arbitrarily or unreasonably, and without reference to any guiding rules or principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). A trial court does not abuse its discretion when it bases its decision on conflicting evidence, nor does a trial court abuse its discretion when it bases its decision on some evidence of a substantial and probative character. Zieba, 928 S.W.2d at 787. Under this abuse-of-discretion standard, the legal and factual sufficiency of the evidence are not independent grounds of error but are merely relevant factors in assessing whether the trial court abused its discretion. Id. at 786–87. The trial court’s judgment should be reversed on appeal when the trial court’s abuse of discretion results in a division of property so disproportionate that it is manifestly unjust and unfair. See Hedtke v. Hedtke, 112 Tex. 404, 411, 248 S.W. 21, 23 (1923).

B

In her first three issues, Tammy challenges the sufficiency of the evidence supporting the trial court’s findings of fact 12.a, d, f, and i, and contends that these findings resulted in a manifestly unjust and unfair division of property. In reviewing a trial court’s findings of fact, we apply the same standards that we apply in reviewing jury findings. Ulmer v. Ulmer, 130 S.W.3d 294, 299 (Tex. App.—Houston [14th Dist.] 2004, no pet.).

First, Tammy challenges finding of fact 12.a, contending that the evidence does not support a finding that “Barry Jensen would be unable to continue his education in Canada” and noting that “[t]he proposition that there are numerous educational institutions in Canada is self-evident and can be made no plainer by repetitions or illustrations.” But Tammy’s contention does not accurately reflect finding 12.a. Instead, the trial court found that Barry “would have benefited from the continuation of the marriage as he had enrolled in college to continue his education and he was attempting to gain the skills necessary to change his career to allow for his possible future employment in the same industry and future pay scale as [Tammy].” The court also found that “[w]hen the parties separated, [Barry] had to drop out of the program in the Houston area and return to Canada as he did not have a legal right to remain in the United States once divorced because he was in the Unites States under [Tammy’s] immigration status as a dependent.” It is evident that in its finding, the trial court was referring to the divorce-related interruption in Barry’s education in Houston, and did not state or imply that Barry would be unable to continue his education in Canada. Further, the finding is supported by Barry’s testimony that, before the divorce, he had registered to attend Houston Community College for the 2007 fall semester to advance his education and job skills, but has since withdrawn.

Tammy also complains of the portion of finding 12.a that Barry did not have the legal right to remain in the Unites States after the divorce because he testified that he could legally move to Houston “for six months, then you have to return to Canada for a day and then come back for another six months.” Reviewed in context, however, Barry’s testimony merely reflects that he was explaining a way in which he could change his status. Further, it was undisputed that he was allowed in the various countries where he and Tammy lived based on a spousal visa, rather than his own visa. Therefore, the evidence is sufficient to support the trial court’s finding of fact 12.a.

Tammy next contends that finding of fact 12.d—that Barry’s unemployment during the marriage was due to the number of moves to foreign countries—is not supported by the evidence. The parties presented conflicting testimony on the reasons for Barry’s unemployment. Tammy testified that her employer, Schlumberger, provided job search assistance, but to her knowledge, Barry never submitted a resume to Schlumberger. Tammy also testified that there were jobs available, included a listing with Barry’s former employer DaimlerChrysler, but he refused to talk to DaimlerChrysler. She also testified that most spouses of Schlumberger employees that she knew in Brazil worked. When she went to work for Hess, Tammy testified, Hess provided Barry with job counseling and other resources but he did not take advantage of them. In contrast, Barry testified that he registered with the Schlumberger-related job listing service, but there were no suitable jobs listed in Brazil. He did not know of any spouses in Brazil who had obtained jobs through the service. Barry testified that, while in Brazil, he networked with potential employers and others and enrolled in a Portuguese-language course to improve his skills. He also testified to various efforts he made to find employment while the couple lived in Trinidad and Tobago, and he testified that after he and Tammy moved to Fort Bend County, he made efforts to find employment, including speaking with an immigration lawyer and applying for a position with Amerada Hess. Barry testified that he and Tammy had lived in four different countries in their four-year marriage. Further, Barry testified that he did not have a work visa and was not allowed to work in those countries with only a spousal visa. The credibility of witnesses in a divorce action, including the husband and wife, is solely under the purview of the trial court, not an appellate court. Zagorski v. Zagorski, 116 S.W.3d 309, 318 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (op. on reh’g). Here, the trial court resolved the disputed evidence in Barry’s favor. Based on our review of record, the evidence is sufficient to support finding of fact 12.d.

Tammy next contends that finding 12.f is against the great weight of the credible evidence. Finding 12.f reflects the following: “Prior to the marriage [Barry] was employed in the finance industry and earning approximately $90,000.00 plus benefits annually, but left his employment to support the development and advancement of [Tammy’s] career.” Tammy complains that the evidence, viewed as a whole, instead “paints the picture of a man who simply showed no interest in working and was perfectly content to live off the earnings of his wife.” She specifically points to her testimony that, in Brazil, Barry was not interested in working for his former employer, DaimlerChrysler, or anyone else, and her testimony that, even before the marriage, Barry took an extended leave of absence to live with Tammy in Indonesia at a place paid for by her employer.

It is undisputed that Barry worked as a credit analyst for DaimlerChrysler for twelve years before the marriage. He testified that that he gave up his career for marriage because Tammy had been offered the position in Brazil and they agreed that she should take the position to advance her career. Barry also testified that after he took the leave of absence to live with Tammy in Indonesia, he returned to his work in Canada in December 2002, and did not leave his job until July 17, 2003, two days before they married. And, as discussed above, Barry testified concerning his ultimately unsuccessful efforts to obtain employment in the places he and Tammy lived. Thus, although the parties disputed whether Barry intended to work during the marriage and the details of Barry’s employment history shortly before the marriage, the trial court, as the fact finder, had the opportunity to observe the witnesses and determine their credibility and the weight of the evidence. See id. at 318. The evidence shows that the couple agreed that they would follow Tammy’s job opportunity in Brazil to advance her career, and the trial court reasonably could have found that that this choice eventually compromised Barry’s own career path. Therefore, finding of fact 12.f is supported by sufficient evidence.

Next, Tammy contends that finding 12.i—that Tammy has greater earning power and potential than Barry does—is “unsupported by the evidence.” Tammy points to that portion of finding 12.f in which the trial court found that Barry was earning $90,000.00 plus benefits annually, and posits that this is evidence that “if [Barry] wants to work and apply himself, he is certainly capable of earning just as much as is his former wife.” But this analysis fails to take into account all of the relevant facts, including the evidence that Barry left his career when he married Tammy, he gained no career experience during the four-year marriage, and he lacked a college degree. In contrast, Tammy had a bachelor’s degree in engineering and was continuously employed as a petroleum engineer with oil companies before and during the marriage. This evidence is sufficient to support the trial court’s finding.

Based on the premise that the evidence was insufficient to support the trial court’s findings of fact 12.a, d, f, and i, Tammy further contends that the trial court’s property division was manifestly unjust and unfair. To illustrate the allegedly unjust and unfair division, Tammy argues that the trial court unfairly awarded Barry fifty percent of the shares in her Mellon One account, but allocated one-hundred percent of the debt encumbering the stock to Tammy. But we have determined that the trial court’s findings were supported by legally and factually sufficient evidence; therefore, the premise upon which Tammy’s argument is based must fail. Moreover, although the trial court divided the account’s 745 community shares roughly equally between the parties, with Barry receiving 373 of these shares, Tammy fails to mention that the court awarded her 1,015 of the shares in the account as her separate property as well as the debt. Barry was not awarded any ownership in, or future benefits from, Tammy’s separate property shares. Also, the trial court had before it testimony and documentary evidence concerning any related debt. A trial court’s division of property “must take into consideration all the equities, the nature of the property, [and] the debts secured by liens on the property awarded to each.” Walker v. Walker, 527 S.W.2d 200, 203 (Tex. Civ. App.—Fort Worth 1975, no writ). On this record, therefore, we cannot say that the trial court erred in awarding the debt to Tammy.

The trial court is authorized to consider many factors, including the disparity of the parties’ incomes and their earning capacities throughout the marriage, when dividing the parties’ estate. See Murff, 615 S.W.2d at 698–99. Tammy has not demonstrated that the trial court’s evaluation of the evidence resulted in an abuse of discretion as required to overturn its property division. See id. Accordingly, we overrule Tammy’s first three issues.

IV

In her fourth issue, Tammy contends that the trial court erred in evaluating her claim for reimbursement of $60,000.00 that she paid from separate funds for the community residence. Therefore, she argues, the trial court’s conclusion of law 18, that Tammy “failed to offer evidence sufficient to support her claims for reimbursement,” is contrary to the evidence and an abuse of discretion. We review the trial court’s conclusions of law de novo. Stavinoha v. Stavinoha, 126 S.W.3d 604, 608 (Tex. App.—Houston [14th Dist.] 2004, no pet.).

A

The Texas Family Code defines separate property as that property owned by a spouse before marriage, acquired during the marriage by gift, devise, or descent, or as a recovery for personal injuries sustained during the marriage. Tex. Fam. Code Ann. § 3.001 (Vernon 2006). In contrast, community property consists of the property, other than separate property, acquired by either spouse during marriage. Tex. Fam. Code Ann. § 3.002 (Vernon 2006). All property possessed by either spouse during or on dissolution of marriage is presumed to be community property. Tex. Fam. Code Ann. § 3.003(a) (Vernon 2006).

To overcome the community-property presumption, a spouse claiming assets as separate property is required to establish their separate character, not merely by a preponderance of the evidence, but by clear and convincing evidence. Tex. Fam. Code Ann. § 3.003(b); Stavinoha, 126 S.W.3d at 607. Clear and convincing evidence means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. Stavinoha, 126 S.W.3d at 607.

The party seeking to rebut the community presumption must generally trace and clearly identify property claimed as separate property. McKinley v. McKinley, 496 S.W.2d 540, 543 (Tex. 1973). Mere testimony that the property was purchased with separate funds, without any tracing of the funds, is generally insufficient to rebut the presumption. McElwee v. McElwee, 911 S.W.2d 182, 188 (Tex. App.—Houston [1st Dist.] 1995, writ denied).

Reimbursement is an equitable right that arises when the funds or assets of one estate are used to benefit and enhance another estate without itself receiving some benefit. Vallone v. Vallone, 644 S.W.2d 455, 458–59 (Tex. 1982). The party claiming the right of reimbursement has the burden of pleading and proving that the expenditures were made and that they are reimbursable. Id. at 459. Reimbursement is not available as a matter of law but lies within the discretion of the court. Id. The discretion to be exercised in evaluating a claim for reimbursement is equally as broad as the discretion exercised in making a just and right division of the community estate. Zieba, 928 S.W.2d at 787.

B

Tammy argues that the trial court erred in evaluating her claim for reimbursement of $60,000 she borrowed from her parents to make a down payment on the couple’s home, on the basis that she repaid the loan from her separate property. Tammy contends that she repaid the loan from the parties’ joint Wells Fargo account, into which she had transferred $36,706.52 from her Hansard International account and $102,662.93 from her Schlumberger account. She further contends that the Hansard account was an investment account opened before the marriage. She acknowledges that some of the Schlumberger account contained funds that accumulated during the marriage, but states that “the overwhelming majority . . . was [acquired] prior to the marriage and [is] separate property.” Tammy also points to Barry’s admissions that the Hansard account was an investment account she had before they married and that she took $36,000 out of that account and put it in the joint account to pay back the loan.

Tammy’s Schlumberger separation package consisted of pension-plan contributions, medical, savings, insurance, and stock options, which accrued before and during the marriage, and were paid out in a lump sum when she ceased working for the company. But, significantly, Tammy points to no evidence that shows what portion of the Schlumberger deposit was her separate property and what portion was earned by the community.[1] Tammy then deposited the money from both the Schlumberger and the Hansard accounts into the couple’s Wells Fargo joint checking account, further commingling them. Tammy testified that this joint account was used for community expenses as well as to pay back the loan. Tammy and Barry disputed whether separate or community money was used to pay for certain purchases and expenses.

Concerning the Hansard account, Tammy testified that this was an investment fund account that required a deposit of $1,000.00 per month for five years. She opened the account in November 2001, before the marriage. Tammy testified that the Hansard account totaled $56,000.00, $20,000.00 of which she accumulated before the marriage. Over time, all of the money was transferred to the Wells Fargo joint account. Tammy testified that “[w]e withdrew $39,000 and 3,000 of that was my separate property money that we withdrew.” Tammy thus appears to concede that $36,000 of the money from the Hansard account was community property. The Wells Fargo statement shows a deposit was made in July 2006 of $36,706.52 from Hansard into the couple’s joint account. This is the same $36,000 Barry was questioned about on cross-examination.

Thus, the evidence concerning the separate character of the funds removed from the couple’s joint account to repay the loan for the down payment on their home was not clearly demonstrated. To the extent that Schlumberger account funds may have been used to repay the loan, Tammy produced no evidence to segregate what portion of those funds belonged to her separate estate as opposed to the community estate. Tammy also conceded that at least $36,000 of the money in her Hansard account was community money. Further, the funds Tammy contends were used to repay the loan were first deposited into the parties’ joint checking account, further commingling them, and Tammy did not sufficiently trace them. See McKinley, 496 S.W.2d at 543–44. Because Tammy failed to demonstrate by clear and convincing evidence that she repaid the loan for the down payment on the parties’ home with her separate funds, the trial court did not abuse its discretion in concluding that she failed to offer sufficient evidence to support her claim for reimbursement. We overrule Tammy’s fourth issue.

* * *

The trial court’s judgment is affirmed.

Jensen v. Jensen (Tex.App.- Houston [14th Dist.] Feb. 23, 2010)(Brown) (divorce property division, foreign spouse, international aspects of family/divorce law)(divorce property division affirmed) (community vs. separate property, reimbursement claim)
AFFIRMED: Opinion by Justice Jeff Brown
Before Justices Brock Yates, Frost and Brown
14-08-00221-CV Tammy C. Jensen v. Barry Dale Jensen
Appeal from 328th District Court of Fort Bend County
Trial Court Judge: Ronald R. Pope

TAGS: marriage and divorce, property division, sex roles, gender roles, gender-neutrality, international marriage, foreign spouses, marital estates, community property, separate property, community property presumption, disparity in earnings potential, discrepancy in income

No community property - Nothing for the divorce court to divide

In this divorce action, appellant [husband] challenges the trial court’s failure to award him certain property he owned prior to the marriage. The court affirms.

FROM THE OPINION

Appellee testified that the parties owned no community property and that any property they owned was acquired before the marriage. She testified that she delivered some of appellant’s clothes, paperwork, court files, and “other collectible stuff” to a relative’s house and placed the remainder in a storage facility. Appellee failed to pay the fees for the storage facility and forfeited the property as a result of the failure to pay.

The trial court entered a divorce decree in which it determined that no children were born of the marriage and there was no community property to divide between the parties. Appellant filed an appeal in which he maintains that appellee failed to prove that the items were forfeited from the storage unit.

Standard of Review

In a divorce decree, the trial court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage. Tex. Fam. Code Ann. § 7.001 (Vernon 2006). The phrase “estate of the parties” means the parties’ community property. Wilson v. Wilson, 44 S.W.3d 597, 600 (Tex. App.—Fort Worth 2001, no pet.) (citing Cameron v. Cameron, 641 S.W.2d 210, 214–15 (Tex. 1982). The trial court has broad discretion in dividing the community estate of the parties, and we will not disturb its decision unless the trial court has clearly abused its discretion. Smith v. Smith, 22 S.W.3d 140, 143 (Tex. App.—Houston [14th Dist.] 2000, no pet.).


Property Division

Here, appellant and appellee did not acquire any community assets. The trial court found that there was no “estate of the parties” to be divided, and appellant does not challenge that finding. Appellant’s complaint centers around the fact that appellee forfeited his separate property that was in the storage facility. Appellee testified under oath that she gave some of appellant’s possessions to his relative and that she forfeited some of them when she failed to pay the fee for the storage facility. Neither appellant, nor his mother, presented any evidence to contradict appellee’s testimony. In granting the divorce and finding that no community property existed, the trial court did not abuse its discretion.

The judgment of the trial court is affirmed.

Baros v. Baros (Tex.App. - Houston [14th Dist.] Feb. 25, 2010)(per curiam)
(divorce property dispute)(no community property accumulated during short marriage)
AFFIRMED: Per Curiam
Before Justices Brock Yates, Seymore and Brown
14-09-00038-CV Waymond Troy Baros v. Melissa Baros
Appeal from County Court at Law No 1 of Montgomery County