Opinion
No. 04-03-00864-CV
Delivered and Filed: April 20, 2005.
Appeal from the 216th Judicial District Court, Gillespie County, Texas, Trial Court No. 8766, Honorable Stephen B. Ables, Judge Presiding.
Affirmed.
Sitting: Catherine STONE, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
This appeal arises out of the administration of the Estate of Jake Edward Damron. In four issues, Appellants Betty Walker and Bonny Damron argue that the trial court should not have set aside net proceeds from the sale of Jake Edward Damron's home as exempt property. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the judgment in this memorandum opinion. See Tex.R.App.P. 47.4.
In their first issue, appellants argue that the trial court erred in denying their request for findings of fact and conclusions of law. We disagree. The supreme court has stated that findings of fact and conclusions of law have no purpose and should not be requested, made, or considered in proceedings in which a judgment was rendered as a matter of law. See IKB Indus. v. Pro-Line Corp., 938 S.W.2d 440, 443 (Tex. 1997). Examples of such proceedings include those relating to summary judgment, judgment after directed verdict, judgment n.o.v., default judgment awarding liquidated damages, dismissal for want of prosecution without an evidentiary hearing, dismissal for want of jurisdiction without an evidentiary hearing, dismissal based on the pleadings or special exceptions, and any judgment rendered without an evidentiary hearing. Id. Here, the trial court was presented with a purely legal issue: whether the net proceeds of the sale of the deceased's home were exempt. And, there was no evidentiary hearing. As such, findings of facts and conclusions of law would have no purpose. We overrule appellants' first issue.
In their second issue, appellants argue that the trial court erred in determining that the net proceeds from the sale of the home were exempt "because more than six months had elapsed since the sale and such proceeds . . . were no longer exempt by the express language of section 41.001(c)" of the Texas Property Code. Appellants never presented this argument regarding section 41.001(c) to the trial court and, as such, have failed to preserve it for appeal. See Tex.R.App.P. 33.1. We overrule appellants' second issue.
In their third issue, appellants argue that Appellee Ericka Hardin breached her fiduciary duty. Like their second issue, appellants failed to argue this breach of fiduciary duty to the trial court. Nonetheless, appellants argue that such error is fundamental, not requiring preservation for review. Appellants cite nothing for this proposition, and we find nothing to support it. See Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982) (describing fundamental error as "those rare instances in which the record shows the court lacked jurisdiction or that the public interest is directly and adversely affected as that interest is declared in the statutes or the Constitution of Texas"). We overrule appellants' third issue.
In their fourth issue, appellants argue in a conclusory fashion that the trial court abused its discretion:
Though requested, the court refused to enunciate any guiding principles for its decision. Had the court analyzed the facts, the application of the statute would have been plain, and Ms. Walker's claim approved. Plaintiff respectfully submits the court abused its discretion.
Appellants have not properly briefed this issue and have waived it. See Tex.R.App.P. 38.1(h). Appellants have not argued why the court abused its discretion or even what statute the court should have applied. Indeed, in their reply brief, appellants merely add the following:
How the trial court judge reached his decision is a mystery to appellant. He was properly requested to elucidate his decision making. No answer was given. If that doesn't constitute decision making that "is arbitrary, unreasonable, and without reference to guiding principles," then nothing will.
We assume from this last statement that appellants are referring to the trial court's refusal to provide findings of facts and conclusions of law. However, as we have already noted, the trial court did not err in refusing to do so. We overrule appellants' fourth issue.
In a cross issue, appellee urges this court, pursuant to Texas Rule of Appellate Procedure 45, to impose sanctions against appellants for filing a frivolous appeal. Rule 45 allows an appellate court, after a determination that an appeal is frivolous, to award the prevailing party "just damages." Tex.R.App.P. 45. Typically, the courts have awarded the amount of attorney's fees incurred by the appellee as proven by testimony or affidavit. See, e.g., Smith v. Marshall B. Brown, P.C., 51 S.W.3d 376, 382 (Tex.App.-Houston [1st Dist.] 2001, pet. denied) (awarding appellees $5,000 in attorney's fees which were proven by affidavit); Mid-Continent Cas. v. Safe Tire Disposal Corp., 2 S.W.3d 393, 397 (Tex.App.-San Antonio 1999, no pet.) (awarding appellee $5,000 in attorney's fees that it proved it would incur if an appeal were filed); Tex. State Taekwondo Assoc. v. Lone Star State Taekwondo Assoc., No. 08-01-00403-CV, 2002 WL 1874852, at *3 (Tex.App.-El Paso 2002, no pet.) (not designated for publication) (noting that although rule 45 does not provide method for proving damages in appellate court, proof by affidavit is proper to establish $7,693.36 in attorney's fees). Appellee's attorney states in briefing that his reasonable and necessary rate is $125.00 and that he has spent in excess of fifty hours working on this appeal. As such, appellee requests at least $6,250.00 in sanctions. Appellee's attorney, however, did not attach an affidavit to this effect or establish proof, in any manner, of his attorney's fees. We are not inclined to award attorney's fees based on unsworn statements in a brief. For that reason, we find that appellee has waived her cross-point on appeal.
Having overruled all issues, we affirm the judgment of the trial court.