Lisa Kastleman v. Bryan Kastleman ( 2014 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
ON MOTION FOR REHEARING
NO. 03-13-00133-CV
Lisa Kastleman, Appellant
v.
Bryan Kastleman, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
NO. D-1-FM-09-002598, HONORABLE ORLINDA NARANJO, JUDGE PRESIDING
SUPPLEMENTAL OPINION
In her motion for rehearing, Lisa Kastleman argues that this Court erroneously
dismissed her appeal as moot on the ground that she was estopped from appealing the final divorce
decree that was based on the parties’ settlement agreement because she had accepted the benefits of
the decree. We issue this supplemental opinion to clarify our decision to deny the motion
for rehearing.
In her first issue, Lisa contends that this Court should grant rehearing because the
amount of property she is alleged to have accepted is less that 4% of the total community estate.1
In re-urging arguments on this issue presented in her response to Bryan’s motion to dismiss and
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Lisa also clarifies that the amount of rental income she accepted was just over 1% of the
value of the community estate, not 10%, as stated in her response to Bryan’s motion to dismiss and
repeated by this Court in our original opinion.
responding to our original opinion, she also raises new arguments for the first time in her motion for
rehearing. Likewise, in her second issue, Lisa asserts for the first time on rehearing the alternative
argument that even if she is estopped from appealing the property division, this Court should address
the severable parent-child and attorney’s fees issues.
Generally, we do not base our rulings on arguments raised for the first time on
rehearing. Wells Fargo Bank, N.A. v. Leath, 425 S.W.3d 525, 540 (Tex. App.—Dallas 2014, pet.
filed) (supp. op. on reh’g); AVCO Corp. v. Interstate Sw., Ltd., 251 S.W.3d 632, 676 (Tex.
App.—Houston [14th Dist.] 2007, pet. denied) (supp. op. on reh’g); see Sherrod v. Moore,
819 S.W.2d 201, 205 (Tex. App.—Amarillo 1991, no writ) (“It is well established that points of
error raised for the first time in a motion for rehearing are too late and will not be considered.”)
(citing Morrison v. Chan, 699 S.W.2d 205, 207 (Tex. 1985)). The sole purpose of a motion for
rehearing is to provide the court an opportunity to correct any errors on issues already presented.
Wentworth v. Meyer, 839 S.W.2d 766, 778 (Tex. 1992) (Cornyn, J., concurring). “‘Rehearing is not
an opportunity to test alternative arguments after finding other arguments unsuccessful.’” OAIC
Commercial Assets, L.L.C. v. Stonegate Vill., L.P., 234 S.W.3d 726, 746 (Tex. App.—Dallas 2007,
pet. denied) (op. on reh’g) (quoting ICM Mortg. Corp. v. Jacob, 902 S.W.2d 527, 535 (Tex.
App.—El Paso 1994, writ denied)). An issue adequately briefed in a motion for rehearing is waived
if the original brief—in this case the original response to Bryan’s motion to dismiss—“is not
sufficient to acquaint the Court with the issue and does not present an argument that would allow
the court to decide the issue.” Wheeler v. Methodist Hosp., 95 S.W.3d 628, 646 (Tex.
App.—Houston [1st Dist.] 2002, no pet.).
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“A motion for rehearing does not afford a party an opportunity to raise new issues
after the case has been briefed, argued, and decided on other grounds unless the error is
fundamental.” OAIC, 234 S.W.3d at 747; see Texas Mun. Power Agency v. Public Util. Comm’n
of Tex., 150 S.W.3d 579, 591 n.13 (Tex. App.—Austin 2004), rev’d in part on other grds., 253
S.W.3d 184 (Tex. 2007). Fundamental error exists “in 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.” Pirtle v. Gregory, 629 S.W.2d 919,
920 (Tex. 1982); see OAIC, 234 S.W.3d at 747; Texas Mun. Power, 150 S.W.3d at 591 n.13. In her
motion for rehearing, Lisa does not raise an issue of fundamental error, and we decline to address
the new arguments she asserts for the first time in her motion for rehearing.
CONCLUSION
We deny Lisa’s motion for rehearing.
__________________________________________
Melissa Goodwin, Justice
Before Justices Puryear, Rose, and Goodwin
Filed: October 23, 2014
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