Brent Douglas Dyer v. Jodi Marie Dyer ( 2022 )

Opinion filed July 14, 2022
In The
Eleventh Court of Appeals
__________
No. 11-20-00212-CV
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BRENT DOUGLAS DYER, Appellant
V.
JODI MARIE DYER, Appellee
On Appeal from the 259th District Court
Jones County, Texas
Trial Court Cause No. 024708
MEMORANDUM OPINION
This is an appeal from a Final Decree of Divorce in which, after discussing
the matter with both parties during the final hearing, the trial court ordered that Brent
Douglas Dyer (Appellant) and Jodi Marie Dyer (Appellee) sell two pieces of
respective separate property together, as a single asset, and equally split the proceeds
therefrom. In his first two issues, Appellant argues that the trial court abused its
discretion in ordering the sale of his separate property. We disagree. Because
Appellant invited the trial court to take this course of action, he is estopped from
complaining about it on appeal. In his third issue, Appellant argues that the trial
court abused its discretion by awarding unconditional appellate attorney’s fees to
Appellee. We agree. Accordingly, we modify the Final Decree of Divorce to
condition the trial court’s award of appellate attorney’s fees to Appellee upon her
success on appeal. We affirm the Final Decree of Divorce as modified.
Background
In May of 2019, Appellant filed a petition for divorce from his wife, Appellee.
A final hearing was held in December. The parties stipulated that a certain five-acre
parcel of land was Appellant’s separate property (the five acres) but that the mobile
home sitting on that five-acre parcel was Appellee’s separate property (the mobile
home). The County Appraisal District valued the five acres to be worth $13,750 and
valued the mobile home to be worth $17,000.
On direct examination during the final hearing, Appellant testified that he
wanted to either buy the mobile home from Appellee or sell the five acres and mobile
home as a single asset and split the proceeds equally. Appellant also testified that
he already had interested buyers for the two pieces of separate property as a single
asset. On direct examination, Appellee testified that she wanted to sell her mobile
home to Appellant for $15,000 or, in the alternative, to sell her mobile home along
with the five acres, as a single asset, and equally divide the proceeds between herself
and Appellant. Appellant stated a preference for buying the mobile home over
selling his five acres along with the mobile home as a single asset. Finally, in the
latter part of the final hearing, Appellant was asked on cross-examination whether
he was in agreement to sell his five acres along with the mobile home and split the
proceeds. Appellant answered without qualification: “Yes.” When then questioned
regarding division of the 56-acre parcel of marital property, Appellant responded: “I
mean . . . I think we’ve agreed on the five acres and the mobile home, so I feel like
we can come to an agreement on the 56 acres.” The trial court explained that the
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time for negotiation between the parties had ended and that it was the court that
would decide the property division. Having been so informed, the trial court asked
Appellant some questions, and in the discussion the court stated, “And clearly you’re
not going to have the five acres and the mobile home in Hawley.”
To conclude the hearing, the trial court then asked: “Okay. Anything else,
Counselors?”—prompting the following brief exchange:
[APPELLANT’S COUNSEL]: I would just urge the Court to
consider something along the line of just selling the one asset. I think
-- and I think he probably already knows somebody that will buy it.
THE COURT: Okay.
[APPELLEE’S COUNSEL]: The five acres and mobile home.
The trial court then took the matter under advisement. Accordingly, the trial court
had heard Appellant’s unconditional affirmation that he agreed to the plan of a joint
sale of the five acres and mobile home and then splitting the proceeds of that sale.
Appellant had offered sua sponte that they were “agreed on the five acres and the
mobile home,” and the trial court had then reminded Appellant that he would not
have the five acres and the mobile home. The trial court invited the parties to bring
up “anything else” before closing the final hearing so that it could take the matter
under advisement before issuing a final order. Clearly, the trial court had given the
parties every opportunity to modify, change, clarify, or explain their positions
regarding the five acres and the mobile home—the separate properties of each.
The trial court issued a Final Decree of Divorce and subsequently issued
Findings of Fact and Conclusions of Law. In its decree, the trial court ordered that
the five-acre lot was Appellant’s separate property and that the mobile home was
Appellee’s separate property. The trial court ordered “that the mobile home and 5-
acre lot be listed for sale at the fair market value” and “that the net proceeds . . . be
divided 50/50 as testified by the parties.” The trial court further ordered that, “[i]n
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the event the parties are unable to agree on the terms of sale . . . a receiver shall be
appointed upon request of either party.” Finally, the trial court ordered that either
party “may purchase or ‘buy out’ the separate property of the other party in the event
the parties mutually agree.” The decree also contained an award of unconditional
appellate attorney’s fees to Appellee in the amount of $5,000 in the event of an
appeal to this court, and another $5,000 in the event of an appeal from this court to
the Supreme Court of Texas.
Synopsis
Appellant raises three issues on appeal. In his first two issues, Appellant
contends that the trial court erred when it divested Appellant of his separate property.
We do not address the arguments Appellant advances to support this contention
because, as Appellee avers and as we explain below, Appellant is estopped from
making this argument under the invited error doctrine. In his third issue, Appellant
contends that the trial court abused its discretion in awarding unconditional appellate
attorney’s fees to Appellee. As discussed below, we agree. Appellant challenges
the unconditional nature of the award of appellate attorney’s fees, and we modify
the Final Decree of Divorce to make the award conditional.
Discussion
I. Error, if any was invited by Appellant
A. Applicable Law
The invited error doctrine has been recognized repeatedly by the Texas
Supreme Court. See In re G.X.H., 627 S.W.3d 288, 301 (Tex. 2021); In re Dep’t of
Family & Protective Servs., 273 S.W.3d 637, 646 (Tex. 2009) (invited error doctrine
applies when “a party requests the court to make a specific ruling, then complains of
that ruling on appeal”); Tittizer v. Union Gas Corp., 171 S.W.3d 857, 862 (Tex.
2005) (estoppel requires a party to have “unequivocally taken a position in the trial
court that is clearly adverse to its position on appeal”); see also Holland v. Wal–
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Mart Stores, Inc., 1 S.W.3d 91, 94–95 (Tex. 1999); Litton Indus. Prods., Inc. v.
Gammage, 668 S.W.2d 319, 321–22 (Tex. 1984); Patton v. Dallas Gas Co., 192
S.W. 1060, 1062–63 (Tex. 1917). It is “elementary” that a party may not invite error
by asking “something of a court and then complain[ing] that the court committed
error in giving it to him.” Ne. Tex. Motor Lines, Inc. v. Hodges, 158 S.W.2d 487,
488 (Tex. [Comm’n Op.] 1942); Bluestar Energy Inc. v. Murphy, 205 S.W.3d 96,
101 (Tex. App.—Eastland 2006, pet. denied). “Simply put, a party may not lead a
trial court into error and then complain about it on appeal.” Keith v. Keith, 221
S.W.3d 156, 163 (Tex. App.—Houston [1st Dist.] 2006, no pet.). This “rule is
grounded in justice and dictated by common sense.” Tittizer, 171 S.W.3d at 861. It
“bars a party from convincing a trial court to take a particular action and then
convincing an appellate court that the trial court’s action was erroneous—that is, it
prevents an appellant from having his cake and eating it too.” In re S.T., 508 S.W.3d
482, 485 (Tex. App.—Fort Worth 2015, no pet.). In short, the invited error doctrine
“prevents a litigant from complaining about mistakes that he helped cause.” In re
Marriage of Palacios, 358 S.W.3d 662, 664 (Tex. App.—Amarillo 2009, pet.
denied) (citing Bluestar Energy, Inc., 205 S.W.3d at 101; Keith, 221 S.W.3d at 163).
B. Analysis
Appellant testified on direct examination that he either wanted to buy the
mobile home from Appellee or wanted to sell the mobile home and five acres as a
single asset and split the proceeds equally between himself and Appellee. On cross-
examination, Appellant testified that he agreed to sell the mobile home and five acres
as a single asset and split the proceeds equally between himself and Appellee.
Further, at the end of the hearing, Appellant’s trial counsel urged the trial court to
order the sale of the mobile home and five acres as a single asset. Appellant “cannot
now complain on appeal that [he] got what [he] asked for.” Sentinel Integrity Sols.,
Inc. v. Mistras Grp., Inc., 414 S.W.3d 911, 920 (Tex. App.—Houston [1st Dist.]
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2013, pet. denied). If, in fact, the trial court should not have ordered that Appellant
either sell his five acres along with Appellee’s mobile home or purchase the mobile
home from Appellee, the trial court’s error in doing so was unmistakably induced
by Appellant. “One will not be permitted to induce the trial court to adopt and pursue
a certain course of action . . . and, after the court has done so, to then complain that
the court committed error thereby.” Patton, 192 S.W. at 1062. “A party cannot
encourage the court to take a particular action and then complain on appeal that the
trial court erred by taking it.” Garcia v. Garza, 311 S.W.3d 28, 38 (Tex. App.—San
Antonio 2010, pet. denied) (quoting Doucet v. Owens-Corning Fiberglas Corp., 966
S.W.2d. 161, 165 (Tex. App.—Beaumont 1998, pet. denied)).
Appellant argues that the invited error doctrine is inapplicable because he
never personally asked the trial court to order him to sell his five acres along with
Appellee’s mobile home and split the proceeds. We disagree. Invited error does not
depend on the existence of an explicitly worded request. See, e.g., In re Marriage
of Palacios, 358 S.W.3d at 664 (explaining that the trial court’s error, if any, in
dividing parties’ marital property “was effectively invited by their effort, or lack
thereof.”); In re Marriage of Postar, No. 07-99-0116-CV, 2000 WL 1854770, at *3
(Tex. App.—Amarillo 2000, pet. denied) (not designated for publication) (applying
invited error doctrine where Appellant did not explicitly request sale of his homes
but “told the judge . . . [they] ‘need to be sold[,]’” and “[t]he judge thereafter
announced his decision to order the . . . houses sold.”). Thus, even absent a targeted,
explicitly worded request from Appellant that the trial court order the sale of his five
acres, the error, if any, in doing so was still invited by Appellant.
But Appellant is mistaken for another reason. Namely, Appellant did, through
his counsel, specifically request that the trial court order the sale of Appellant’s
five acres and Appellee’s mobile home as one asset. At the conclusion of the
hearing, when the trial court asked whether the parties had anything else to add,
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Appellant’s trial counsel responded, “I would just urge the Court to consider
something along the line of just selling the one asset. . . . [A]nd I think he probably
already knows somebody that will buy it.” Appellee’s trial counsel then said,
ostensibly to clarify, “[t]he five acres and mobile home.” Neither Appellant nor his
trial counsel said anything else in reply or for further clarification. Appellant now
argues that “it is entirely unclear” what Appellant’s trial counsel was referring to
when he requested a course of action that involved “selling the one asset.” We
disagree. Earlier in the proceedings, Appellant was asked about selling the two
separate properties together and splitting the proceeds, and he not only supported the
idea but said, “I have had interested people.” Viewed in the context of the entire
hearing, the trial court reasonably understood Appellant’s trial counsel to be
referring to the five acres and mobile home when he requested “selling the one
asset[,]” particularly since he had explained to the trial court that Appellant
“probably already knows somebody that will buy it.”
We are further persuaded by the fact that Appellant’s trial counsel remained
silent after Appellee’s trial counsel offered the clarificatory remark— “[t]he five
acres and the mobile home.”1 We would expect, as the trial court could have
expected, that if this clarification offered by Appellee’s trial counsel were incorrect,
Appellant’s trial counsel would have said something to disabuse the trial court of
that notion. “[W]here a definite statement of a matter of fact, affecting a party or his
rights, is made in his presence or hearing so that he understands it, and the statement
is of such a nature as to call for a reply, the statement, in connection with a total or
partial failure to reply, is admissible as tending to show a concession of the truth of
1
There was no relevant objection or clarification offered during the hearing on the Motion to Sign
Final Decree on June 16, 2020. Appellant’s filed Motion for New Trial states only that “this Court abused
its discretion in making the property division” and nothing more. We decline to rule, as unnecessary,
whether Appellant preserved error for review of the matter per Rule 33.1(a) of the Texas Rules of Appellate
Procedure. See In re Marriage of Postar, 2000 WL 1854770, at *4.
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the facts stated.” Miller v. Dyess, 151 S.W.2d 186, 191 (Tex. 1941). The trial
court’s error, if any, “was effectively invited by [Appellant’s trial counsel’s] effort,
or lack thereof.” In re Marriage of Palacios, 358 S.W.3d at 664. In context, absent
further reply or denial from Appellant’s trial counsel, the trial court reasonably
interpreted the phrase “the single asset” as referring to “[t]he five acres and the
mobile home” uttered in immediate follow-up and in apparent clarification thereto.
Accordingly, because Appellant invited the trial court’s complained-of
treatment of his five acres, we hold that he is estopped from complaining about it on
appeal. As such, Appellant’s first two issues are overruled.
II. The trial court abused its discretion in awarding unconditional
appellate attorney’s fees to Appellee.
A. Applicable Law
“We review a trial court’s award of appellate attorney’s fees under the abuse
of discretion standard.” J.C. Penney Life Ins. Co. v. Heinrich, 32 S.W.3d 280, 289
(Tex. App.—San Antonio 2000, pet. denied) (citing In re Ford Motor Co., 988
S.W.2d 714, 721 (Tex. 1998)). A trial court abuses its discretion when it acts
“arbitrarily, unreasonably, or without reference to legal principles.” Berkel & Co.
Contractors, Inc. v. Lee, 612 S.W.3d 280, 287 (Tex. 2020). “A trial court may not
penalize a party for taking a successful appeal.” Keith, 221 S.W.3d at 171. Thus,
an unconditional award of appellate attorney’s fees is improper. Id. Trial courts
“must condition the award of appellate attorney’s fees upon the appellant’s
unsuccessful appeal.” Id.B. Analysis
The trial court awarded unconditional appellate attorney’s fees to Appellee.
The trial court abused its discretion because a grant of unconditional appellate
attorney’s fees is never allowed. See id.; see also Berkel & Co. Contractors, Inc.,
612 S.W.3d at 287. However, “an unconditional award of appellate attorney’s fees
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does not require reversal; instead, we may modify a trial court’s judgment to make
the award of appellate attorney’s fees contingent upon the receiving party’s success
on appeal.” Keith, 221 S.W.3d at 171. Accordingly, we modify the trial court’s
decree to make the award of appellate attorney’s fees contingent upon the Appellee’s
success on appeal. Id.Appellant does not challenge an award of appellate attorney’s fees to
Appellee. Nor does Appellant challenge the reasonableness of the amount that was
awarded—$5,000 per appeal. Consequently, we do not address those issues. Rather,
Appellant challenged the unconditional nature of the award of appellate attorney’s
fees. We sustain Appellant’s third issue. Thus, having overruled Appellant’s other
issues, we affirm, as modified, the trial court’s award of $5,000 in appellate
attorney’s fees to Appellee. If Appellant appeals our decision, an award of further
appellate attorney’s fees to Appellee shall be contingent upon her success before the
Supreme Court of Texas.
This Court’s Ruling
We modify the trial court’s Final Decree of Divorce to condition the award of
appellate attorney’s fees to Appellee on the successful outcome of those appeals. As
modified, we affirm the trial court’s Final Decree of Divorce.
W. BRUCE WILLIAMS
JUSTICE
July 14, 2022
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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