Michael S. Land v. Stephanie Anne Land , 561 S.W.3d 624 ( 2018 )

Affirmed in Part, Reversed and Remanded in Part, and Opinion filed July 19,
2018.
In The
Fourteenth Court of Appeals
NO. 14-17-00013-CV
MICHAEL S. LAND, Appellant
V.
STEPHANIE ANNE LAND, Appellee
On Appeal from the 310th District Court
Harris County, Texas
Trial Court Cause No. 2013-06029
OPINION
Michael S. Land and Stephanie Anne Land divorced in March 2014. The trial
court’s final divorce decree incorporates an agreement dividing the marital estate.
In a post-divorce suit, Stephanie sought (1) a division of $81,000 in assets she says
were left undivided by the parties’ agreement; and (2) the return of a diamond
engagement and wedding ring.
After a bench trial, the trial court signed a final judgment awarding Stephanie
(1) $38,637 as her portion of the assets left undivided by the parties’ agreement; and
(2) any insurance funds received as compensation for claims paid on the ring. The
trial court’s final judgment also awards $30,480.10 as Stephanie’s reasonable
attorney’s fees and costs. Michael challenges the relief granted in the trial court’s
final judgment. For the reasons below, we affirm in part and reverse and remand in
part.
BACKGROUND
The parties’ dispute focuses on (1) the trial court’s post-divorce division of
$81,000 deducted from Michael’s 2013 year-end employment bonus; and (2) the
ring.
I. Divorce and Division of Assets
Michael filed suit seeking a divorce from Stephanie in January 2013. The trial
court signed a final divorce decree on March 13, 2014.
The trial court’s final divorce decree incorporates Michael’s and Stephanie’s
“Agreement Incident to Divorce,” signed in March 2014, which establishes a
detailed division of the marital estate based on an informal settlement agreement
Michael and Stephanie signed at an earlier settlement conference.
Among other things, the parties’ informal settlement agreement and
Agreement Incident to Divorce address the disposition of Michael’s 2013 year-end
employment bonus. Schedule A to the informal settlement agreement provides as
follows.
DIVISION: All assets result in 53% division to wife, 47% to husband,
including after sale of certain assets including the house, except as
noted. Any division is net of all costs of sale, maintenance, etc.
Stephanie Land shall receive [a] 53% portion of the 2013 year[-]end
bonus paid to Michael in February 2014, if and when paid.
2
The parties do not dispute on appeal that any undivided assets are subject to this 53-
47 percent division. The parties’ Agreement Incident to Divorce states that Michael
is entitled to receive as his sole and separate property “[a] 47% interest in the net
amount of the 2013 year[-]end bonus from Occidental Petroleum undistributed as of
the date of divorce,” and that Stephanie is entitled to receive as her sole and separate
property “[a] 53% interest in the net amount after taxes and deductions of the 2013
year[-]end bonus from Occidental Petroleum undistributed as of the date of
divorce . . . .” The Agreement Incident to Divorce does not address Michael’s 2013
year-end bonus in any other provisions, nor does it state that the agreement purports
to divide all of the parties’ assets.1 The parties’ Agreement Incident to Divorce
provides that the ring is Stephanie’s “separate property.”
The agreement’s terms addressing the distribution of Michael’s 2013 year-
end employment bonus use similar but not identical language with respect to each
party’s respective share: The distribution to Michael references a “net amount” of
the 2013 year-end bonus, while the distribution to Stephanie references a “net
amount after taxes and deductions.” The parties do not assert that this difference
reflects an intent to apply the phrase “net amount” differently to Michael and
Stephanie.
Michael’s February 2014 pay stub from Oxy USA Inc. shows the receipt of
his 2013 year-end bonus in the gross amount of $460,000.2 The pay stub shows that
Michael’s 2013 year-end bonus is subject to two pre-tax deductions: $75,000 for a
deferred annual bonus and $6,000 for a personal savings account contribution. After
these pre-tax deductions, Michael’s 2013 year-end bonus equaled $379,000 and was
1
The agreement states that “[a]ny assets of the parties not divided by this agreement will
be subject to future division as provided in the Texas Family Code.”
2
Michael testified at trial that his “actual employer” was Oxy USA, Inc., a subsidiary of
Occidental Petroleum.
3
subject to $108,711.10 in taxes. The February 2014 pay stub lists the “net pay” for
Michael’s 2013 year-end bonus as $270,288.90. This amount was deposited in
Michael’s checking account.
Michael paid Stephanie 53 percent of the net amount of $270,288.90, which
equaled $143,253.12. Michael retained the remaining 47 percent, which equaled
$127,035.78.
II. Post-Divorce Legal Proceedings and Property Division
After the parties’ March 2014 final divorce decree, the next item in the
appellate record is Stephanie’s “Second Amended Petition for Enforcement of
Property Division by Contempt” filed in February 2015.
Stephanie’s February 2015 pleading sought an order enforcing the parties’
Agreement Incident to Divorce and directing Michael to convey to Stephanie a 53
percent interest in the remainder of Michael’s 2013 year-end bonus from Occidental
Petroleum: (1) the $75,000 deferred annual bonus; and (2) the $6,000 personal
savings account contribution. This 53 percent interest represents $39,750 of the
deferred annual bonus and $3,180 of the personal savings account contribution. In
the alternative, Stephanie’s second amended petition asked the trial court to treat the
deferred annual bonus and personal savings account contribution as “undivided
assets” and award her 53 percent of each.
Michael filed a no-evidence motion for summary judgment in August 2015.
Michael’s motion asserted that Stephanie “cannot . . . demonstrate all the elements
for an action for enforcement of a decree,” and requested a “partial summary
judgment.” Michael’s motion did not address Stephanie’s alternative claim for
division of undivided assets. The trial court signed an order on August 28, 2015,
granting Michael’s no-evidence motion for summary judgment with respect to
4
Stephanie’s enforcement action.
In October 2015, Stephanie filed her “Second Amended Petition for
Enforcement of Property Division by Contempt and Original Counterpetition for
Breach of Contract, Petition to Divide Undivided Asset and Motion fo[r]
Clarification.” Stephanie’s October 2015 pleading reiterated her enforcement claim
with respect to the $75,000 deferred annual bonus and $6,000 personal savings
account contribution deducted from Michael’s 2013 year-end employment bonus.
Stephanie’s October 2015 pleading also asserted (1) a claim to divide as undivided
assets the $75,000 deferred annual bonus and $6,000 personal savings account
contribution; (2) a breach of contract claim asserting that Michael’s failure to
distribute to Stephanie 53 percent of the deferred annual bonus and personal savings
account contribution constituted a breach of the parties’ Agreement Incident to
Divorce; and (3) a breach of contract claim alleging that Michael retained the ring
in violation of the parties’ Agreement Incident to Divorce.
Michael filed an amended answer in response to Stephanie’s October 2015
pleading. Michael asserted the affirmative defense of res judicata, contending that
all of Stephanie’s claims other than breach of contract for retention of the ring were
barred. Michael asserted counterclaims for breach of contract and libel.
Michael filed a motion for traditional and no-evidence summary judgment in
January 2016. Michael’s January 2016 summary judgment motion asserted that res
judicata barred Stephanie’s claims seeking a division of Michael’s 2013 year-end
bonus; Michael claimed that the trial court’s August 28, 2015 order on Michael’s
summary judgment motion “disposed of all of [Stephanie’s] claims regarding the
disposition of the bonus . . . .” The trial court held a hearing on Michael’s January
2016 summary judgment motion and denied the motion.
The parties proceeded to a bench trial in October 2016. Michael’s and
5
Stephanie’s testimony at trial addressed (1) the $75,000 deferred annual bonus and
$6,000 personal savings account contribution deducted from Michael’s 2013 year-
end employment bonus; and (2) the location of the ring. The parties’ attorneys
testified regarding attorney’s fees.
At the conclusion of trial, the trial court orally rendered judgment in favor of
Stephanie and ordered Michael to “pay to [Stephanie] 53 percent of the $81,000 after
federal income tax deduction.” The trial court also awarded Stephanie “any
insurance funds for claims paid for the ring that’s the subject of this suit.” The trial
court ordered Michael to pay Stephanie’s attorney’s fees and costs in the amount of
$30,480.10.
On October 20, 2016, the trial court signed its “Order Granting Award of
Undivided Asset.” This order is a final judgment. It lists 11 factual findings.3 The
following findings are relevant to the issues presented in this appeal.
2. Michael S. Land had $6,000.00 of that year[-]end bonus withheld
in a Personal Savings Account (“PSA”, the 401(K) offered by
Michael S. Land’s employer at that time);
3. The $6,000.00 withheld in that PSA is an undivided asset;
4. Michael S. Land had $75,000.00 of that year[-]end bonus
withheld as a Deferred Annual Bonus;
5. The $75,000.00 withheld in that Deferred Annual Bonus is an
3
Under Texas Rule of Civil Procedure 299a, findings of fact should not be recited in a
judgment but should be filed as a separate document. See Tex. R. Civ. P. 299a. If findings are
made in the final judgment and they conflict with findings filed separately under Texas Rules of
Civil Procedure 297 and 298, then the latter findings control for appellate purposes. See id. Here,
the trial court did not file any separate written findings that could conflict with those included in
its final judgment. Because they were not supplanted by separate findings, the findings included
in the trial court’s final judgment are accorded probative value. See In re C.A.B., 289 S.W.3d 874,
881 (Tex. App.—Houston [14th Dist.] 2009, no pet.).
6
undivided asset;
6. Those undivided assets are community property;
7. The intention of the parties was to award Stephanie Anne Land
53% of the community estate and Michael S. Land 47% of the
community estate;
8. 53% of those undivided assets (totaling $81,000) is $42,930.00;
9. The award to Stephanie Anne Land shall be reduced 10% for
taxes;
10. Stephanie Anne Land shall receive $38,637.00 net of taxes . . . .
The trial court’s final judgment awards Stephanie $38,637 for her portion of the
$81,000 in undivided assets after taxes, as well as “any and all insurance funds
received for claims paid for the diamond engagement and wedding ring.” The trial
court’s final judgment awards Matthew Skillern, Stephanie’s attorney, $30,480.10
in attorney’s fees and costs. The final judgment includes a Mother Hubbard clause
that states, “All relief requested by the parties and not expressly granted is denied.”
Michael did not request additional or amended findings of fact and
conclusions of law.
Michael filed a motion for new trial challenging the trial court’s division of
the $75,000 deferred annual bonus and $6,000 personal savings account contribution
deducted from his 2013 year-end employment bonus, as well as its award of
attorney’s fees and costs. Michael’s new trial motion was overruled by operation of
law. See Tex. R. Civ. P. 329b(c). Michael timely appealed.
ANALYSIS
Michael’s arguments on appeal challenge (1) the trial court’s post-divorce
division of the $75,000 deferred annual bonus and $6,000 personal savings account
contribution; (2) Stephanie’s breach of contract claim pertaining to the ring; (3) the
7
portion of the trial court’s final judgment that awards Stephanie “any and all
insurance funds received for claims paid for the diamond engagement and wedding
ring;” and (4) the attorney’s fee award included in the final judgment.
I. Post-Divorce Division of Michael’s $75,000 Deferred Annual Bonus and
$6,000 Personal Savings Account Contribution
The trial court determined that the $75,000 deferred annual bonus and $6,000
personal savings account contribution deducted from Michael’s 2013 year-end
employment bonus were assets left undivided by the parties’ final divorce decree
and Agreement Incident to Divorce. Concluding that the $81,000 was community
property, the trial court determined that the parties intended to award Stephanie 53
percent of the community estate with Michael entitled to the remaining 47 percent.
The trial court awarded Stephanie 53 percent of $81,000 after taxes, for a total award
of $38,637.
We turn first to Michael’s argument that the trial court’s order on his August
2015 no-evidence summary judgment motion foreclosed the trial court’s subsequent
division of the deferred annual bonus and personal savings account contribution.
Michael contends that “[t]he [August 2015] summary judgment granted by the trial
court disposed of the very claims” Stephanie asserts here, and that “res judicata bars
relitigation of the terms of the Decree.”
Res judicata prevents parties from relitigating matters that were or could have
been litigated in a previous suit. Hallco Tex., Inc. v. McMullen Cty., 221 S.W.3d 50,
58 (Tex. 2006). To establish res judicata, a party must show (1) a prior final
judgment on the merits by a court of competent jurisdiction; (2) identity of parties
or those in privity with them; and (3) a second action based on the same claims that
were raised or could have been raised in the first action. Hernandez v. Del Ray
Chem. Int’l, Inc., 56 S.W.3d 112, 115 (Tex. App.—Houston [14th Dist.] 2001, no
8
pet.). With respect to the first element, a judgment is final if it “disposes of all
remaining parties and claims” in a case. Lehmann v. Har-Con Corp., 39 S.W.3d
191, 200 (Tex. 2001).
Michael’s res judicata argument fails because the trial court’s order granting
Michael’s August 2015 summary judgment motion is not a final judgment in a prior
suit.
Stephanie’s February 2015 pleading sought enforcement of the parties’ final
divorce decree or, in the alternative, a division of Michael’s deferred annual bonus
and personal savings account contribution as undivided assets. Michael’s August
2015 motion sought summary judgment with respect to Stephanie’s enforcement
claim and asserted that Stephanie “cannot . . . demonstrate all the elements for an
action for enforcement of a decree.” Contending that Stephanie’s “Petition for
Enforcement must fail,” Michael’s motion requested a “partial summary judgment”
with respect to Stephanie’s enforcement claim.
The trial court granted Michael’s August 2015 motion and signed an order
directing that Stephanie take nothing in her “Suit for Enforcement.” The trial court’s
order did not dispose of Stephanie’s alternative claim seeking a division of Michael’s
deferred annual bonus and personal savings account contribution as undivided
assets. Because the trial court’s August 28, 2015 order on Michael’s August 2015
summary judgment motion did not dispose of all claims in the case, it is not a final
judgment. See Hernandez, 56 S.W.3d at 115.
Michael’s second argument asserts that the trial court committed an error of
law when it determined that the $75,000 deferred annual bonus and $6,000 personal
savings account contribution were undivided assets subject to post-divorce division.
According to Michael, the trial court’s judgment impermissibly modifies the
9
unambiguous distribution included in the parties’ Agreement Incident to Divorce.4
Under Michael’s reading of the Agreement Incident to Divorce and the final divorce
decree, Stephanie receives no portion of the disputed $81,000 because these assets
“were excepted from the distribution” and Stephanie “is not entitled to further
distribution from [Michael’s] estate.”
Stephanie contends that the Agreement Incident to Divorce is unambiguous
and does not distribute the $75,000 deferred annual bonus and $6,000 personal
savings account contribution, which makes these amounts “undivided assets” that
are properly subject to a post-divorce partition.
As part of their divorce proceedings, parties may enter into an agreement
incident to divorce to address “the division of the property and the liabilities of the
spouses and maintenance of either spouse.” Tex. Fam. Code Ann. § 7.006(a)
(Vernon 2006). If the trial court approves the agreement, the court may incorporate
the agreement by reference in the final divorce decree. Id. § 7.006(b). Once the trial
court approves the parties’ agreement incident to divorce and incorporates it into the
final divorce decree, the agreement is the judgment of the court. Russell v. Russell,
478 S.W.3d 36, 46 (Tex. App.—Houston [14th Dist.] 2015, no pet.).
After approving the agreement incident to divorce, the trial court “may not
amend, modify, alter, or change the division of property” included in the agreement.
Tex. Fam. Code Ann. § 9.007(a) (Vernon Supp. 2017). An order that amends,
modifies, alters, or changes the agreement’s division of property is beyond the trial
court’s power and is unenforceable. Id. § 9.007(b).
4
These challenges were asserted in Michael’s motion for new trial and are preserved for
our review. See Tex. R. App. P. 33.1(b) (“[i]n a civil case, the overruling by operation of law of a
motion for new trial or a motion to modify the judgment preserves for appellate review a complaint
properly made in the motion”).
10
If a final divorce decree or an agreement incident to divorce fails to dispose
of property subject to division, either former spouse may file suit to divide the
property. Id. § 9.201(a) (Vernon 2006). In a post-divorce partition suit, the trial
court has the power to “divide the property in a manner that the court deems just and
right, having due regard for the rights of each party . . . .” Id. § 9.203(a) (Vernon
2006). The burden is on the party seeking the division to establish that community
property existed when the marriage was being dissolved and that the property was
not divided by the court when rendering the final divorce decree. Brown v. Brown,
236 S.W.3d 343, 348 (Tex. App.—Houston [14th Dist.] 2007, no pet.).
An agreement incident to divorce is treated as a contract, and its legal force
and meaning are governed by the law of contracts. Allen v. Allen, 717 S.W.2d 311,
313 (Tex. 1986). If the agreement’s provisions can be given a certain or definite
meaning, then the agreement is unambiguous and we ascertain its meaning as a
matter of law. Buys v. Buys, 924 S.W.2d 369, 372 (Tex. 1996). Courts should
examine and consider the entire writing in an effort to harmonize and give effect to
all the provisions of the contract. See Watson v. Heaton, No. 14-09-00717-CV, 2010
WL 5132565, at *2 (Tex. App.—Houston [14th Dist.] Dec. 14, 2010, no pet.) (mem.
op.).
The Agreement Incident to Divorce is not ambiguous and we construe its
meaning as a matter of law. See Buys, 924 S.W.2d at 372. The Agreement Incident
to Divorce unambiguously divides the “net amount” of the 2013 year-end
employment bonus but does not divide deducted amounts for the deferred annual
bonus and personal savings account contribution.
With respect to Michael’s 2013 year-end employment bonus, the agreement
states that Michael is entitled to receive as his sole and separate property “[a] 47%
interest in the net amount of the 2013 year[-]end bonus from Occidental Petroleum
11
undistributed as of the date of divorce,” and that Stephanie is entitled to receive as
her sole and separate property “[a] 53% interest in the net amount after taxes and
deductions of the 2013 year[-]end bonus from Occidental Petroleum undistributed
as of the date of divorce . . . .” These corresponding distributions encompass only
the “net amount” of Michael’s 2013 year-end bonus; the provision distributing
Stephanie’s 47 percent explicitly states that the “net amount” is exclusive of “taxes
and deductions.” This conforms to the plain meaning of “net” as defined in Black’s
Law Dictionary as an amount of money “minus any deductions for expenses,
commissions, and taxes.” Net, Black’s Law Dictionary at 1202 (10th ed. 2014).
Accordingly, the parties’ Agreement Incident to Divorce unambiguously divides
only the “net amount” of Michael’s 2013 year-end bonus; it does not divide or
distribute amounts excluded from that classification.
Michael’s February 2014 pay stub states that the “net pay” Michael received
for his $460,000 2013 year-end bonus equaled $270,288.90. Under the
unambiguous terms of the parties’ Agreement Incident to Divorce, this “net amount”
of $270,288.90 is the only portion of the bonus distributed by the agreement. The
$75,000 deferred annual bonus and $6,000 personal savings account contribution
fall outside of this “net amount” classification and are not otherwise divided or
distributed by the parties’ agreement. Therefore, these assets are subject to division
in a post-divorce partition suit. The trial court’s order dividing these assets does not
modify the parties’ Agreement Incident to Divorce. See Tex. Fam. Code Ann.
§§ 9.007, 9.201(a), 9.203(a).
In Finding of Fact No. 6, the trial court determined that “[t]hese undivided
assets are community property[.]” In Finding of Fact No. 7, the trial court found as
follows: “The intention of the parties was to award Stephanie Anne Land 53% of
the community estate and Michael S. Land 47% of the community estate[.]” The
12
parties do not dispute these findings. Because the deferred annual bonus and
personal savings account contribution are community property and were not
otherwise divided, these amounts are subject to the 53-47 percent division intended
by the parties.
Our disposition of this issue comports with Loya v. Loya, 526 S.W.3d 448
(Tex. 2017). In Loya, the ex-spouses’ mediated settlement agreement addressed
future income as follows: “All future income of a party and/or from any property
herein awarded to a party is partitioned to the person to whom the property is
awarded.” Id. at 452. Guided by the provision’s plain meaning, the Supreme Court
determined that the future income provision encompassed the ex-husband’s 2011
bonus — an amount based in part on services provided before the divorce but paid
after the divorce was final. Id. at 451-52.
Here too, we are guided by the plain meaning of the parties’ Agreement
Incident to Divorce, which divides only the “net amount” of Michael’s 2013 year-
end employment bonus. Construing Michael’s February 2014 pay stub in light of
the agreement’s unambiguous directive, the $75,000 deferred annual bonus and
$6,000 personal savings account contribution are excluded from the net amount of
Michael’s 2013 year-end bonus. Accordingly, these assets were not divided by the
parties’ Agreement Incident to Divorce and are subject to distribution in a post-
divorce partition suit. See Tex. Fam. Code Ann. §§ 9.007, 9.201(a), 9.203(a).
Michael asserts that the agreement’s specific reference to “deductions”
precludes a conclusion that these assets are unidentified because “the text itself
identifies the purportedly unidentified asset.”
But the dispositive issue before us is not whether the Agreement Incident to
Divorce “identifies” the disputed assets; instead, the dispositive issue is whether the
Agreement Incident to Divorce divides the disputed assets. See id. at § 9.201(a);
13
Brown, 236 S.W.3d at 348. As discussed above, under the unambiguous terms of
the parties’ Agreement Incident to Divorce, the parties divide only the “net amount”
of Michael’s 2013 year-end employment bonus. This “net amount” does not include
the $75,000 deferred annual bonus and $6,000 personal savings account
contribution. Under unchallenged Finding of Fact No. 6, these assets are community
property. Under unchallenged Finding of Fact No. 7, the default for undivided
community property assets is the 53-47 percent division.
We overrule Michael’s challenges to the trial court’s post-divorce division of
the $75,000 deferred annual bonus and $6,000 personal savings account contribution
deducted from Michael’s 2013 year-end employment bonus.
II. Breach of Contract With Respect to the Ring
The October 20, 2016 Order Granting Award of Undivided Asset does not
expressly state that Michael breached the Agreement Incident to Divorce by
retaining the ring. It states: “Stephanie Anne Land is awarded any and all insurance
funds received for claims paid for the diamond engagement and wedding ring.”
Michael asserts that (1) Stephanie presented no evidence to support her claim
that Michael breached the Agreement Incident to Divorce by holding or converting
the ring; and (2) the trial court abused its discretion by awarding to Stephanie “any
and all insurance funds received for claims paid for the diamond engagement and
wedding ring.”
We conclude that (1) legally sufficient evidence supports Stephanie’s breach
of contract claim, and (2) Michael waived his challenge to the trial court’s final
judgment insofar as he complains about the judgment’s reference to insurance
proceeds.
14
A. Legal Sufficiency
The findings included in the trial court’s final judgment do not expressly state
whether the trial court found in Stephanie’s favor on her breach of contract claim
arising from Michael’s alleged retention of or failure to return the ring. For the
purposes of our review, it is implied that the trial court “made all the findings
necessary to support its judgment.” Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.
1990) (per curiam). Because the trial court’s final judgment awards Stephanie relief
based on the value of the ring, it is implied that the trial court found in Stephanie’s
favor on the breach of contract claim seeking relief for the loss of the ring. See id.;
see also Perez v. Le Prive Enters., L.L.C., No. 14-15-00291-CV, 2016 WL 3634298,
at *5 (Tex. App.—Houston [14th Dist.] July 7, 2016, no pet.) (mem. op.) (where
trial court awarded damages for conversion claim but failed to include findings of
fact, it was implied that the court determined the evidence satisfied all elements of a
conversion cause of action).
The essential elements of a breach of contract claim are (1) the existence of a
valid contract; (2) the plaintiff performed or tendered performance; (3) the defendant
breached the contract; and (4) the plaintiff was damaged as a result of the breach.
Sec. Nat’l Ins. Co. v. Waloon Inv., Inc., 384 S.W.3d 901, 907 n.2 (Tex. App.—
Houston [14th Dist.] 2012, no pet.). Michael challenges the breach element and
asserts that no evidence supports a finding that he retained or refused to return the
ring in breach of the parties’ Agreement Incident to Divorce. A “no evidence” or
legal sufficiency complaint may be asserted for the first time on appeal in a civil
nonjury case. Tex. R. App. P. 33.1(d).
Implied findings of fact are reviewable for legal sufficiency of the evidence
by the same standards as applied to the review of a jury’s findings. RR Maloan Invs.,
Inc. v. New HGE, Inc., 428 S.W.3d 355, 359 (Tex. App.—Houston [14th Dist.] 2014,
15
no pet.). Evidence is legally insufficient if: (1) there is a complete absence of
evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving
weight to the only evidence offered to prove a vital fact; (3) the evidence offered to
prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes
conclusively the opposite of a vital fact. City of Keller v. Wilson, 168 S.W.3d 802,
810 (Tex. 2005).
We review the evidence in the light most favorable to the trial court’s implied
findings and assume that the court resolved all conflicts in accordance with its
judgment. See id. at 820. We credit evidence favorable to the trial court’s findings
if reasonable factfinders could and we disregard contrary evidence unless reasonable
factfinders could not. See id. at 827. The ultimate test is whether the evidence at
trial would enable reasonable and fair-minded people to reach the finding under
review. Id. In applying these standards, we consider the undisputed evidence and
the evidence that supports the implied finding; we do not consider evidence that a
factfinder reasonably could have disbelieved. In re J.F.C., 96 S.W.3d 256, 268 (Tex.
2002).
The evidence introduced at trial is legally sufficient to support the trial court’s
implied finding that Michael breached the Agreement Incident to Divorce by
retaining or refusing to return the ring. Stephanie testified that she last saw the ring
in November 2012, when she left it at the marital residence in Houston before
traveling to California. Stephanie testified that she did not see the ring when she
returned to the marital residence in May 2013. Michael remained at the marital
residence during this period of time.
Michael had the ring appraised at the Houston Gemological Laboratory.
When questioned, Michael did not recall the date of the appraisal but agreed that it
occurred “after [Stephanie] left the marital residence.” The appraisal was admitted
16
as an exhibit at trial. The appraisal was dated September 11, 2013, and included a
photograph of the ring labeled “Actual Picture of Item.”
Michael testified that he last saw the ring “[b]efore [Stephanie] left for
California” in 2012. When asked about the photograph of the ring included with the
September 2013 appraisal completed at his request, Michael testified that the
photograph was “a picture of a picture of the ring” taken from an earlier appraisal.
A reasonable factfinder could have concluded that Michael had possession of
the ring in September 2013, when he had it appraised, and thereafter. This evidence
would enable reasonable and fair-minded people to find that Michael retained or
refused to return the ring in breach of the parties’ Agreement Incident to Divorce.
The evidence is legally sufficient to support the trial court’s implied finding with
respect to Stephanie’s breach of contract claim.
We overrule Michael’s legal sufficiency challenge to Stephanie’s breach of
contract claim pertaining to the ring.
B. Trial Court’s Final Judgment
The trial court’s final judgment awards to Stephanie “any and all insurance
funds received for claims paid for the diamond engagement and wedding ring.”
Michael’s challenge to this portion of the trial court’s final judgment is
unclear. Michael asserts that this award constitutes “an abuse of discretion” because
“[n]o declaratory judgment was sought on an insurance matter.” Michael also
acknowledges that the ring “is [Stephanie’s] separate property by agreement of the
parties” and asserts that he is not challenging the trial court’s declaration regarding
insurance proceeds — a declaration he describes as “accurate but irrelevant to [the]
disposition of the issues presented.”
Insofar as Michael seeks to challenge this portion of the trial court’s final
17
judgment, he has waived his right to do so. To preserve a complaint for appellate
review, a party must present to the trial court a timely request, motion, or objection,
state the specific grounds therefore, and obtain a ruling, or voice an objection to the
trial court’s failure or refusal to rule. Tex. R. App. P. 33.1(a). “To preserve a
complaint of error in a judgment, a party must apprise the trial court of its objection
by a motion to amend or correct the judgment, a motion for new trial, or some other
similar method.” Willis v. Willis, 826 S.W.2d 700, 702 (Tex. App.—Houston [14th
Dist. 1992, no writ); see also Rooney v. Rooney, No. 14-10-01007-CV, 2011 WL
3684618, at *9 (Tex. App.—Houston [14th Dist.] Aug. 23, 2011, no pet.) (mem.
op.).
Here, Michael appears to complain of asserted error in the trial court’s final
judgment, specifically, its award to Stephanie of any insurance funds received for
claims paid for the ring. Michael did not apprise the trial court of this objection in a
motion to amend or correct the judgment, a motion for new trial, or some other
similar vehicle. Therefore, Michael failed to preserve for our review his complaint
addressing the trial court’s final judgment. See Willis, 826 S.W.2d at 702; see also
Rooney, 2011 WL 3684618, at *9.
We overrule Michael’s challenge to the trial court’s final judgment with
respect to its disposition of the claim concerning the ring.
III. Attorney’s Fees
Michael asserts that the trial court erred by (1) awarding Stephanie attorney’s
fees; and (2) failing to award attorney’s fees to Michael. We sustain Michael’s
challenge to the trial court’s attorney’s fee award insofar as it awards fees for work
performed by non-attorney staff members.
18
A. Stephanie’s Attorney’s Fees
Michael asserts on appeal several arguments challenging the trial court’s
attorney’s fees award:
1. Stephanie’s attorney’s fee evidence was not segregated between claims
for which attorney’s fees are recoverable and claims for which they are
not;
2. Stephanie prevailed on a single claim but was awarded all her fees; and
3. no evidence was offered addressing the qualifications of the non-
attorneys for whom fees were awarded.
These issues were raised in Michael’s motion for new trial and are preserved for our
review. See Tex. R. App. P. 33.1(b). We sustain Michael’s third challenge
addressing fees awarded for work completed by non-attorney staff.
Stephanie’s attorney Matthew Skillern provided the following testimony with
respect to attorney’s fees:
 “My hourly rate is $350.00 an hour. That is an amount that is
customary for a lawyer with my skill and my experience.”
 “[M]y associate, Triston Longino, who has been licensed for five years,
has charged $250.00 an hour. Additionally, Melissa Skillern has been
a paralegal at $100.00 an hour. Those are both customary rates for [a]
paralegal and associate attorney with their skill and experience.”
 “My total firm’s attorney’s fees in this matter, with the billable
expenses that we’ve had to incur, are $36,080.10.”
The trial court admitted as an exhibit 30 pages of billing sheets and invoices showing
the time spent and expenses incurred by attorneys and non-attorney staff members
working on Stephanie’s case. The billing sheets and invoices detail the work
performed and expenses incurred from December 2014 through August 2016. The
total amount of charges equals $36,080.10; hourly work performed by non-attorney
19
staff totaled approximately $8,875. Each work entry on the billing sheets and
invoices includes the date the work was performed; the individual who performed
the work; that person’s hourly billing rate; a description of the tasks completed; the
amount of time spent; and the total amount billed.
During cross-examination, Skillern agreed that “it would be appropriate to
deduct the amounts” incurred for Stephanie’s enforcement claim and estimated that
those fees equaled $3,500. Skillern agreed that segregation of fees was necessary as
to the enforcement claim and estimated that $3,500 should be deducted from the
overall fees for this purpose. Skillern stated that he did not segregate fees between
“the ring issue versus the bonus issue.”
The trial court’s final judgment awards Skillern $30,480.10 in attorney’s fees
and costs. The trial court did not specify the basis for its award and Michael did not
request findings of fact or conclusions of law on this issue.
We will not disturb a trial court’s award of attorney’s fees absent an abuse of
discretion. Cole Chem. & Distrib., Inc. v. Gowing, 228 S.W.3d 684, 689-90 (Tex.
App.—Houston [14th Dist.] 2005, no pet.) (bench trial). “Generally, the test for
abuse of discretion is whether the trial court acted without reference to any guiding
rules and principles or whether the trial court acted arbitrarily and unreasonably.”
Charette v. Fitzgerald, 213 S.W.3d 505, 512 (Tex. App.—Houston [14th Dist.]
2006, no pet.). When determining an appropriate fee award, the trial court is entitled
to examine the entire record and “to view the matter in light of the amount in
controversy, the nature of the case, and his or her personal experience as a lawyer or
judge.” Cole Chem. & Distrib., Inc., 228 S.W.3d at 690.
A party may employ the lodestar method to prove its attorney’s fees; the
lodestar method requires proof “showing the hours worked for each of the attorneys
multiplied by the applicable hourly rate for a total fee . . . .” Auz v. Cisneros, 477
20
S.W.3d 355, 360 (Tex. App.—Houston [14th Dist.] 2015, no pet.); see also Saad v.
Valdez, No. 14-15-00845-CV, 2017 WL 1181241, at *4, 20 (Tex. App.—Houston
[14th Dist.] March 30, 2017, no pet.) (lodestar method used in bench trial). A
lodestar fee determination begins with the number of hours reasonably expended on
the litigation. El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 762 (Tex. 2012). “That
proof should include the basic facts underlying the lodestar, which are: (1) the nature
of the work, (2) who performed the services and their rate, (3) approximately when
the services were performed, and (4) the number of hours worked.” Id. at 763. This
showing is generally met by “refer[ing] to some type of record or documentation to
provide this information.” Id.
Attorney’s fees are recoverable only when provided for by statute or by the
parties’ agreement. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310 (Tex.
2006). A party seeking attorney’s fees is required to “segregate fees between claims
for which they are recoverable and claims for which they are not.” Id. at 311.
Segregation is not required when attorney’s fees are recoverable for all causes of
action. See Law Office of David E. Williams, II, P.C. v. Fort Worth Tex. Magazine
Venture, LP, No. 02-10-00373-CV, 2011 WL 2651865, at *4 (Tex. App.—Fort
Worth July 7, 2011, no pet.) (mem. op.). But “when discrete legal services advance
both a recoverable and unrecoverable claim[,] . . . they are so intertwined that they
need not be segregated.” Chapa, 212 S.W.3d at 313-14.
We first address Michael’s contention that Stephanie failed to segregate her
attorney’s fee evidence between claims for which fees are recoverable and claims
for which they are not. We overrule this contention.
Stephanie’s October 2015 pleading asserted four causes of action: (1) an
enforcement claim; (2) a claim to divide undivided assets; (3) a breach of contract
claim with respect to Michael’s 2013 year-end employment bonus; and (4) a breach
21
of contract claim with respect to the ring. At the hearing held on Michael’s January
2016 summary judgment motion, Stephanie stated that she was not proceeding on
her enforcement cause of action and acknowledged that the enforcement claim was
disposed of pursuant to Michael’s August 2015 summary judgment motion.
Stephanie stated that she would seek to recover only with respect to her claims for
undivided assets and breach of contract.
Attorney’s fees are recoverable for both claims. See Tex. Civ. Prac. & Rem.
Code Ann. § 38.001(8) (Vernon 2015) (fees recoverable for a contract claim); Tex.
Fam. Code Ann. § 9.205 (Vernon Supp. 2017) (fees recoverable for a claim to divide
undivided assets). The parties’ Agreement Incident to Divorce also includes a
provision providing for the recovery of attorney’s fees:
Reasonable attorney’s fees and expenses of a party incurred in
successfully prosecuting or defending a suit under this agreement
against the other party or the other party’s estate will be recoverable by
the successful party in the action.
Both statute and contract authorize Stephanie’s recovery of attorney’s fees for the
three claims on which she proceeded to trial. Therefore, Stephanie was not required
to segregate her attorney’s fee evidence among these three claims for which fees are
recoverable. See Chapa, 212 S.W.3d at 310-11; see also Law Office of David E.
Williams, II, P.C., 2011 WL 2651865, at *4. Stephanie was required to segregate
her attorney’s fees proof to exclude attorney’s fees for her unsuccessful enforcement
claim, but Stephanie did so because her expert testified that $3,500 should be
deducted for the work on this claim. See Chapa, 212 S.W.3d at 313-14.
Michael’s second argument challenging the attorney’s fee award asserts that,
“[o]f the claims brought by [Stephanie], [Stephanie] prevailed on only one, and
[Michael] prevailed on the balance, but [Stephanie] was awarded all her fees. This
is reversible error and an abuse of discretion.” We overrule Michael’s second
22
challenge.
Michael did not request findings of fact and conclusions of law with respect
to the trial court’s attorney’s fee award. See Tex. R. Civ. P. 296. On matters tried
to the bench, where findings of fact and conclusions of law are not requested or filed,
it will be implied that the trial court made all the findings necessary to support its
judgment. Builders First Source-South Tex., LP v. Ortiz, 515 S.W.3d 451, 456 (Tex.
App.—Houston [14th Dist.] 2017, pet. denied). “In determining whether some
evidence supports the judgment and the implied findings of fact, ‘it is proper to
consider only that evidence most favorable to the issue and to disregard entirely that
which is opposed to it or contradictory in its nature.’” Worford, 801 S.W.2d at 109
(quoting Renfro Drug Co. v. Lewis, 235 S.W.2d 609, 613 (Tex. 1950)). The trial
court’s judgment must be affirmed if it can be upheld on any legal theory that finds
support in the evidence. Id.
We are instructed to affirm the trial court’s attorney’s fee award “if it can be
upheld on any legal theory that finds support in the evidence.” Id. Stephanie was
entitled to recover attorney’s fees for each of the claims on which she proceeded to
trial. See Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8); Tex. Fam. Code Ann.
§ 9.205. As discussed above, we conclude that (1) the trial court was correct in
dividing as undivided assets the $75,000 deferred annual bonus and $6,000 personal
savings account contribution; and (2) the evidence is legally sufficient to support
finding in Stephanie’s favor on her breach of contract claim pertaining to the ring.
Stephanie segregated her proof as to the enforcement claim — the only claim on
which she was unsuccessful.
Michael’s third challenge relies on El Apple I, Ltd., 370 S.W.3d 757, and
asserts that Stephanie “offered no evidence on the qualifications or supervision of
the non-attorneys for whom fees were awarded.” We sustain Michael’s third
23
challenge.
When using the lodestar method to quantify a fee recovery, “the applicant
must provide sufficient details of the work performed” which “includes, at a
minimum, documentation of the services performed, who performed them and at
what hourly rate, when they were performed, and how much time the work
required.” El Apple I, Ltd., 370 S.W.3d at 764. To recover fees for work performed
by non-attorney staff, courts have required additional evidence showing (1) the staff
member’s qualifications to perform substantive legal work; (2) that the staff member
performed the substantive legal work under the direction and supervision of an
attorney; (3) the nature of the legal work performed by the staff member; (4) the staff
member’s hourly rate; and (5) the total number of hours expended by the staff
member. Id. at 763; see also Bencon Mgmt. & Gen. Contracting, Inc. v. Boyer, Inc.,
178 S.W.3d 198, 209 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (court
affirmed fees awarded for work performed by non-attorney staff and cited Moody v.
EMC Servs., Inc.); Moody v. EMC Servs., Inc., 828 S.W.2d 237, 248 (Tex. App.—
Houston [14th Dist.] 1992, writ denied) (evidence insufficient to support fees for
work done by non-attorney staff where it did not “establish the qualifications of the
para-professionals, the type of work performed, the hourly rate for these persons, or
the number of hours expended”).
Here, the billing records include entries showing work completed by three
non-attorney staff members that yielded approximately $8,875 in fees. Each entry
lists the date the work was performed; who performed the work; the hourly rate of
the person who performed the work; a description of the tasks completed; the amount
of time spent; and the total amount billed. No evidence was presented to show the
non-attorney staff members’ qualifications to perform the substantive legal work for
which they billed. Nor did any evidence show that the non-attorney staff member
24
performed the substantive legal work under the direction and supervision of an
attorney. Consistent with the cases above, a fee award cannot compensate for work
performed by non-attorney staff members without evidence showing the staff
members’ qualifications to perform the substantive legal work and showing that the
staff member performed the substantive legal work under the direction and
supervision of an attorney. See El Apple I, Ltd., 370 S.W.3d at 763; Moody, 828
S.W.2d at 248. We cannot determine how much of the attorney’s fee award was
based on work performed by non-attorney staff. Therefore, we reverse the entire
award of $30,480.10 in attorney’s fees and costs and remand to the trial court with
instructions to delete from this award any amount based on the work of a person who
is not an attorney and to make a new award of attorney’s fees and costs not based on
the work of any such person because the proof regarding this work is legally
insufficient. See El Apple I, Ltd., 370 S.W.3d at 763; Moody, 828 S.W.2d at 248.
B. Michael’s Attorney’s Fees
Michael contends that he “prevailed on two of the three causes of action” and
requests that the trial court “be directed to redetermine the award of fees to
[Michael].”
Although Michael’s attorney testified regarding attorney’s fees, the trial court
made no findings of fact or conclusions of law on the issue of whether Michael was
entitled to attorney’s fees. The trial court’s final judgment does not indicate that
Michael prevailed on any of his affirmative claims, and Michael did not request
findings of fact or conclusions of law regarding the trial court’s attorney’s fee
determination. See Tex. R. Civ. P. 296.
Because Michael did not request findings of fact and conclusions of law, we
imply all findings necessary to support the trial court’s judgment. Builders First-
Source-South Tex., LP, 515 S.W.3d at 456. We imply a finding by the trial court
25
that Michael did not prevail on any of his affirmative claims and should not recover
attorney’s fees as to any of Stephanie’s claims, a conclusion supported by the trial
court’s final judgment. See Nipp v. Broumley, 285 S.W.3d 552, 560 (Tex. App.—
Waco 2009, no pet.) (“Because of the absence of any findings on the issue of
attorney’s fees, we will not render judgment in [defendant’s] favor for attorney’s
fees.”).
CONCLUSION
We reverse the award of $30,480.10 in attorney’s fees and costs and remand
to the trial court with instructions to delete from this award any amount based on the
work of a person who is not an attorney and to make a new award of attorney’s fees
and costs not based on the work of any such person due to the legal insufficiency of
the proof for this work. We affirm the remainder of the judgment.
/s/ William J. Boyce
Justice
Panel consists of Chief Justice Frost and Justices Boyce and Jewell.
26