Opinion
No. 05-05-01664-CV
Opinion issued June 8, 2007.
On Appeal from the 199th Judicial District Court Collin County, Texas, Trial Court Cause No. 416-51175-02.
MEMORANDUM OPINION
Appellant Steven Louis Greenstein appeals the trial court's award of attorney's fees to his former attorney, appellee George M. Parker d/b/a Parker Montgomery. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We affirm the trial court's judgment.
Parker represented Greenstein in a divorce proceeding during which the parties sold their marital residence. A portion of the proceeds from the sale of the residence was placed in the court's registry. Before the divorce was final, Parker withdrew as Greenstein's attorney and intervened in the proceeding seeking unpaid attorney's fees. After a hearing on the intervention, the trial court awarded attorney's fees to Parker from the funds in the court's registry.
In his first two issues on appeal, Greenstein argues the trial court erred by awarding attorney's fees to Parker from funds in the court's registry because those funds were exempt proceeds from the sale of his homestead.
A party asserting that proceeds from the sale of a homestead are protected must first plead and prove the existence of a homestead. See Burk Royalty Co. v. Riley, 475 S.W.2d 566, 568 (Tex. 1972); Roberson v. Home Owners' Loan Corp., 147 S.W.2d 949, 953 (Tex.Civ.App.-Dallas 1941, writ dism'd judgm't cor.). Once the homestead is proved, proceeds from its sale maintain their protected status for six months following release from the court's registry. See Harleaux v. Harleaux, 154 S.W.3d 925, 927 (Tex.App.-Dallas, 2005, no pet.); see also Tex. Prop. Code Ann. § 41.001(c) (Vernon Supp. 2006).
Here, Greenstein does not cite to the record where he pleaded and proved the marital residence was his homestead. Throughout the record, the parties refer to the residence as the "residence," the "home," the "marital residence" or the "marital house," but never as the "homestead." And when Parker asked the trial court to award him attorney's fees from the funds in the court's registry, Greenstein neither objected nor otherwise raised the homestead issue.
The first time Greenstein argued the proceeds were from the sale of his homestead was in a written objection to the proposed final judgment. Even then, Greenstein did not attach property records showing he claimed the homestead exemption on this residence or an affidavit to support his objection. See Roberson, 147 S.W.2d at 953. The record does not show Greenstein proved the proceeds in the court's registry were from the sale of his homestead. We resolve appellant's first and second issues against him.
In his third issue, Greenstein argues that a sale of his homestead did not take place because he was not paid at the closing. Greenstein did not preserve this issue for our review because he did not raise it below. See Tex. R. App. P. 33.1. In a subpart to this issue, he argues he was not afforded an opportunity to reinvest the proceeds in another homestead. We reject this argument for reasons discussed under appellant's fourth issue. We resolve appellant's third issue against him.
In his fifth issue, Greenstein argues the trial court erred by not taking into consideration his homestead objection prior to entering final judgment in the intervention. Greenstein simply argues that because the final judgment was signed one day after he filed his objection, the trial court could not have considered it. But even if the trial court did not consider the homestead issue before rendering final judgment, the record shows the trial court did consider the issue after Greenstein filed a motion for new trial arguing the trial court erred by awarding attorney's fees to Parker out of the proceeds from the sale of his homestead. The parties submitted case law to support their respective positions on the homestead issue. After consideration, the trial court concluded Greenstein's actions showed he intended to abandon the exempt status of the proceeds; the trial court sent the parties a letter in which it stated its conclusion. We believe it is this letter about which Greenstein now complains on appeal.
Also under his fifth issue, Greenstein argues the trial court erred by entering final judgment without requiring a motion to enter and without holding a hearing on the issue of the entry of the final judgment. The court held a hearing on the intervention, after which the court rendered final judgment. Greenstein does not cite any authority, and we have found none, that requires a motion to enter the final judgment and a hearing on that motion. We resolve appellant's fifth issue against him.
In his fourth issue, Greenstein argues the trial court erred by concluding he abandoned the exempt status of the proceeds from the sale of his homestead. However, we construe Greenstein's fourth issue as arguing the trial court abused its discretion by failing to grant his motion for new trial on the homestead issue.
We previously concluded Greenstein did not prove the residence was his homestead. However, even if he did prove homestead status, we cannot agree the trial court abused its discretion by failing to grant Greenstein's motion for new trial on this ground.
Greenstein did not obtain a ruling on his motion for new trial. If a motion for new trial "is not determined by written order signed within seventy-five days after the judgment was signed, it shall be considered overruled by operation of law on expiration of that period." Tex. R. Civ. P. 329b(c). Because the court did not rule within the stated time period, Greenstein's motion for new trial was overruled by operation of law. See id. In cases where the motion for new trial is overruled by operation of law, the issue is whether the trial court abused its discretion by not granting the motion for new trial and by allowing it to be overruled by operation of law. Cont'l Carbon Co. v. Sea-Land Serv., Inc., 27 S.W.3d 184, 187 (Tex.App.-Dallas 2000, pet. denied). A trial court abuses its discretion when it fails to correctly analyze or apply the law. In re E.I. DuPont de Nemours Co., 136 S.W.3d 218, 223 (Tex. 2004). The test is whether the trial court acted in an arbitrary and unreasonable manner or without reference to any guiding principles. Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004).
Here, the record shows that Greenstein signed a rule 11 agreement in July 2003 authorizing the proceeds from the sale of the residence to be disbursed one-half to himself as his separate property, and one-half to be placed in the court's registry. The record also shows Greenstein used $25,000 of the one-half he received to pay attorney's fees. There is no evidence in the record that Greenstein reinvested the remaining proceeds into another homestead. Greenstein did not raise the homestead issue until August 2004, over a year after approving the disbursement of the funds. But in January 2005, the trial court signed an order releasing over $13,000 of the proceeds in the court's registry to Greenstein's new attorney, and Greenstein did not object to this order.
These actions are inconsistent with Greenstein's intent to maintain the exempt status of the proceeds. See Ferguson v. Ferguson, 111 S.W.3d 589, 598 (Tex.App.-Fort Worth 2003, pet. denied) (abandonment of homestead may be express or inferred from intentional conduct that is inconsistent with intent to claim property as homestead) (citing Tenneco, Inc. v. Enter. Prod. Co., 925 S.W.2d 640, 643 (Tex. 1996)); see also Kendall Builders, Inc. v. Chesson, 149 S.W.3d 796, 808 (Tex.App.-Austin 2004, pet. denied) (abandonment occurs when party asserting homestead right ceases to use property and intends not to use it as homestead again). We conclude the trial court did not abuse its discretion by allowing the motion for new trial to be overruled by operation of law. We resolve appellant's fourth issue against him.
In his sixth issue, Greenstein argues the trial court erred by severing the intervention without a motion to sever and without a hearing. Although we note the August 27, 2004 final judgment in the intervention bears a different cause number from the second amended final decree of divorce dated October 20, 2005, nothing in the record explains this difference. The record does not contain an order of severance, and the docket sheet does not contain an entry showing the intervention was severed.
Greenstein, as appellant, bore the responsibility of providing the court with a record supporting his issues on appeal. Tex. Rs. App. P. 34.5; 35.1, .3; see Enter. Leasing Co. of Houston v. Barrios, 156 S.W.3d 547, 549-50 (Tex. 2004). Without a record supporting this issue, Greenstein presents nothing upon which we can conclude the trial court abused its discretion. See Barrios, 156 S.W.3d at 549-50; Simon v. York Crane Rigging Co., Inc., 739 S.W.2d 793, 795 (Tex. 1987); Nix v. Fraze, 752 S.W.2d 118, 120 (Tex.App.-Dallas 1988, no writ). We resolve appellant's sixth issue against him.
We affirm the trial court's judgment.