Opinion
NO. 02-16-00332-CV
09-14-2017
ANDRE HUEY-YOU APPELLANT v. CLARETTA HUEY-YOU APPELLEE
FROM THE 360TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 360-521029-12 MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
This appeal concerns the award of attorney's fees following an action brought pursuant to Chapter 9 of the Texas Family Code to enforce the trial court's property division in a divorce case. Although the factual and procedural history of this case is complicated, the single issue is not. Appellant Andre Huey- You (Huey-You) contends that the trial court abused its discretion by denying his motion to modify, correct, or reform the order authorizing the distribution of funds from a sale of property because the attorney fees awarded were not segregated, necessary, or reasonable. We affirm.
I. BACKGROUND FACTS
The facts pertinent to this appeal follow the trial court's final decree of divorce signed August 12, 2014. In the decree, the trial court ordered certain Charles Schwab investment accounts be divided equally between appellee Clarette Kimp, formerly known as Clarette Huey-You (Kimp), and Huey-You. Kimp and Huey-You were also to receive 50% each of the proceeds from the court-ordered sale of two pieces of real property owned by the community estate. In the decree, the court awarded $3,000 to the attorney for each party from the liquidation of a Charles Schwab Roth IRA and ordered that each party was responsible for his or her own additional attorney's fees, expenses, and costs incurred in the case.
There were two children of the marriage, and orders concerning the children were included in the final decree. There were also post-decree motions concerning child-related issues filed and ruled on by the court.
In the months and years that followed the trial court's decree, there was extensive litigation to effectuate the trial court's property-division orders, the details of which are unnecessary to the only issue raised by Huey-You here. Ultimately, the trial court appointed a receiver on March 4, 2016, to sell the community estate's real properties. After further motions and court appearances dedicated primarily to obtaining the cooperation of Huey-You in allowing the receiver to do her job, the court held a hearing and signed orders that authorized the receiver to close on contracts she had obtained for the sale of both properties. Kimp filed a motion to approve distribution of funds from the sale of the properties, which amounted to $167,217.36. Attached to that motion was a verified declaration signed by Kimp's attorney, setting forth time and billing records to support his request that the court order $32,025 in reasonable and necessary attorney's fees incurred in connection with the property-enforcement issues only. Additionally, Kimp's attorney declared that "the property enforcement issues were necessarily intertwined and handled together and could not reasonably be segregated; but time spent dealing with custody and possession issues [have] been segregated, in anticipation that such segregation might be necessary." The record before this court reflects that Huey-You did not respond or otherwise object to Kimp's motion requesting the distribution of the proceeds on the sale and the award of attorney's fees.
On July 5, 2016, the trial court signed an order authorizing distribution of the $167,217.36 as follows: "$91,478.24 to Clarette Kimp; $45,739.12 to Andre Huey-You; and $30,000 to [Kimp's attorney]." Huey-You then filed a motion to modify, correct, or reform this order, complaining of the attorney's fees awarded. Specifically, Huey-You alleged that "[i]t was improper for the Court to enter orders that awarded attorney's fees; or in the alternative awarded the wrong amount of attorney's fees which resulted in an[] unfair and unreasonable award; and provided excessive relief to the prevailing party." At the hearing on this motion, counsel for Huey-You expanded on the motion by arguing for the first time that the fees awarded were not properly segregated. Although counsel's arguments to the trial court are somewhat difficult to follow, it appears she was arguing that the attorney's fees concerning property issues were not segregated from attorney's fees concerning child-custody issues. Counsel for Huey-You conceded at the hearing that she was not arguing that the rate for Kimp's attorney was unreasonable under "any of the Arthur Anderson factors." Following the hearing, the trial court signed an order denying Huey-You's motion to modify, correct, or reform the order. After Huey-You's timely request, the trial court filed findings of facts and conclusions of law. Specifically, the trial court found that "[r]easonable and necessary attorney's fees incurred by Ms. Kimp for enforcement of property division are $30,000[]. The trial court then concluded,
On appeal, Huey-You lists the Arthur Anderson factors in full in support of his current position that the attorney's fees ordered were not necessary or reasonable. See Arthur Anderson & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997) (op. on reh'g).
1. This court has jurisdiction over Ms. Kimp's motion for enforcement pursuant to Family Code Chapter 9 (enforcement as to property).
. . . .
4. Petitioner's attorney . . . should be awarded attorney's fees in the sum of $30,000.00 from the proceeds of the sale.
5. The issues of property enforcement were so intertwined that it would not be appropriate to require segregation of fees.Huey-You appeals and argues in one point that the trial court abused its discretion by failing to segregate the attorney's fees and that the evidence was insufficient to show that the award was necessary or reasonable.
II. DISCUSSION
A. STANDARDS OF REVIEW
Generally we review the decision by a trial court to either grant or deny attorney's fees under an abuse-of-discretion standard and review the amount awarded under a legal-sufficiency standard. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998); EMC Mortg. Corp. v. Davis, 167 S.W.3d 406, 418 (Tex. App.—Austin 2005, pet. denied). The test for abuse of discretion is whether the court acted without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). Because we review the amount of attorney's fees awarded under a legal-sufficiency standard, if more than a scintilla of evidence supports the award, the challenge must fail. Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003).
B. WAIVER OF SEGREGATION ARGUMENT
Kimp's motion to approve distribution of funds from the sale of properties with the attached verified declaration of her attorney was filed on June 22, 2016, with a certificate of service attesting that the motion and attachment were sent to Huey-You, who was representing himself at the time. The record before this court does not reflect that Huey-You filed any response to the motion or any objection to the attorney's sworn declaration concerning fees prior to the trial court's order. On July 1, 2016, the trial court signed a handwritten "JUDGE'S ORDER," distributing the proceeds held in trust by Kimp's attorney with a recitation that the attorney would prepare an order. Four days later—July 5, 2016—the trial court signed a prepared order reflecting the same distribution of sale proceeds.
On appeal, Huey-You argues that we must reverse the trial court's award of attorney's fees because the fees were not properly segregated. Huey-You waived this objection by failing to raise it by motion, objection, or otherwise prior to either of the court's July 2016 orders distributing funds and awarding fees. Green Int'l, Inc. v. Solis, 951 S.W.2d 384, 389 (Tex. 1997); Chambers v. Ochiltree, No. 03-04-00143-CV, 2004 WL 2814288, at *5 (Tex. App.—Austin Dec. 9, 2004, no pet.) (mem. op.). "[I]f no objection is made to a failure to segregate attorney's fees . . . at the time the evidence of attorney's fees is presented . . ., the error is waived." Fire Ins. Exch. v. Kennedy, No. 02-11-00437-CV, 2013 WL 441088, at *5 (Tex. App.—Fort Worth Jan. 31, 2013, pet. denied) (mem. op.); see also Am. Homeowners Preservation Fund v. Pirkle, 475 S.W.3d 507, 529 & n.29 (Tex. App.—Fort Worth 2015, pet. denied). In a bench trial, the objection that attorney's fees are not segregated as to specific claims must be raised before the trial court issues its ruling. Raising the issue for the first time post-judgment, such as in a motion for new trial, is untimely and any error is waived. See Horvath v. Hagey, No. 03-09-00056-CV, 2011 WL 1744969, at *6 (Tex. App.—Austin May 6, 2011, no pet.) (mem. op. on reh'g); see also Red Rock Props. 2005, Ltd. v. Chase Home Fin., L.L.C., No. 14-08-00352-CV, 2009 WL 1795037, at *6-7 (Tex. App.—Houston [14th Dist.] June 25, 2009, no pet.) (mem. op.). Huey-You did not object based on a failure to segregate before the trial court issued its ruling and, thus, any error was waived. See Tex. R. App. P. 33.1(a)(1); see also Tex. R. Evid. 103(a).
Even if Huey-You preserved his segregation argument for our review, we would conclude that he has not shown the trial court abused its discretion by finding, based on the evidence, that the claims were too intertwined to segregate the requested attorney's fees. See, e.g., Pike v. Tex. EMC Mgmt., LLC, No. 10-14-00274-CV, 2017 WL 2507783, at *21 (Tex. App.—Waco June 7, 2017, pet. filed) (mem. op.); McCarty v. Montgomery, 290 S.W.3d 525, 540 (Tex. App.—Eastland 2009, pet. denied).
C. SUFFICIENT EVIDENCE OF AMOUNT
Huey-You also argues that the amount of the award was supported by insufficient evidence to show that it was either necessary or reasonable. As with his segregation argument, Huey-You failed to object to the quantum or quality of the evidence regarding the reasonableness of the requested attorney's fees when the evidence was presented to the trial court. But reasonableness is a fact issue to be determined by the fact-finder; therefore, a challenge to the reasonableness of fees is a challenge to the sufficiency of the evidence to support the award, which may be raised for the first time on appeal. See Tex. R. App. P. 33.1(d); Bocquet, 972 S.W.2d at 21; Universal MRI & Diagnostics, Inc. v. Med. Lien Mgmt. Inc., 497 S.W.3d 653, 663 (Tex. App.—Houston [14th Dist.] 2016, no pet.).
We conclude, however, that the record reflects that there was sufficient substantive evidence submitted to support the fees awarded by the trial court. The unobjected-to, verified evidence the trial court considered in ruling on the motion to distribute funds was that the requested sum of $32,025 was reasonable, necessary, and incurred in connection with property enforcement issues. Although the uncontroverted testimony of an interested witness, such as an attorney seeking fees, generally does nothing more than create a fact issue, such testimony is taken as a matter of law if it is not contradicted by any other witness and is clear, direct, positive, and free from inaccuracies and circumstances tending to cast suspicion on it. See AMX Enters., L.L.P. v. Master Realty Corp., 283 S.W.3d 506, 519-20 (Tex. App.—Fort Worth 2009, no pet.) (op. on reh'g); see also Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990) (holding uncontroverted testimony regarding attorney's fees conclusively established right to recover fees as a matter of law). This exception is particularly true in cases such as this one where the opposing party had the opportunity to disprove the verified declaration yet failed to do so. See AMX Enters., 283 S.W.3d at 520. Kimp's counsel's declaration and supporting documentation were clear, direct, positive, free from inaccuracies, and uncontroverted and, therefore, sufficiently supported the trial court's award. See, e.g., Eitel v. Horobec, No. 02-12-00500-CV, 2014 WL 584780, at *5 (Tex. App.—Fort Worth Feb. 13, 2014, no pet.) (mem. op.).
III. CONCLUSION
By not raising a segregation argument to the trial court before the attorney's fees were awarded, Huey-You waived any error arising from the trial court's finding that the fees could not be segregated. And although Huey-You did not have to preserve his argument that the evidence was insufficient to support the trial court's award, the uncontradicted evidence before the trial court supported the amount of the award. Accordingly, we overrule Huey-You's point and affirm the trial court's order.
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE PANEL: WALKER, GABRIEL, and KERR, JJ. DELIVERED: September 14, 2017