Elizabeth Ann Allmond v. Loe, Warren, Rosenfield, Kaitcer, Hibbs & Windsor, P.C. and Mark J. Rosenfield ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-282-CV
ELIZABETH ANN ALLMOND APPELLANT
V.
LOE, WARREN, ROSENFIELD, APPELLEES
KAITCER, HIBBS & WINDSOR, P.C.
AND MARK J. ROSENFIELD
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FROM THE 322ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Elizabeth Ann Allmond (“Elizabeth”) and Larry Wayne Allmond (“Larry”)
were divorced in November 2005. Elizabeth later complained to her attorneys,
Loe, Warren, Rosenfield, Kaitcer, Hibbs & Windsor, P.C. (“Loe Warren”) that
Larry was not remitting assets as provided in the decree. On Elizabeth’s behalf,
1
… See Tex. R. App. P. 47.4.
Loe Warren filed a motion for enforcement of agreed final decree of divorce,
which was served on Larry. Stating that Elizabeth had not paid attorneys’ fees,
Loe Warren simultaneously filed a motion to withdraw as attorney of record,
which the trial court later granted. Loe Warren then intervened in the
enforcement action, seeking to recover fees from Elizabeth.
After a June 2007 bench trial, the trial court entered a “Final Judgment”
awarding Loe Warren unpaid attorneys’ fees, pre- and post-judgment interest,
and attorneys’ fees for the action to recover fees from Elizabeth. Notably, Larry
is not mentioned in this judgment, and the record does not reflect any
appearance by Larry or resolution of Elizabeth’s enforcement action against him.
Elizabeth appealed, arguing that Loe Warren’s intervention in the
enforcement action was invalid and that the trial court never obtained
jurisdiction over Loe Warren’s attorneys’ fees claims. We do not reach
Elizabeth’s arguments because we do not have jurisdiction over this appeal.
Absent a statute expressly conferring appellate jurisdiction, interlocutory
orders are not appealable.2 Here, the underlying action is a motion to enforce
a divorce decree filed by Elizabeth against Larry. Chapter 9 of the Family Code
authorizes such actions and provides that, “[e]xcept as otherwise provided in
2
… See, e.g., Stary v. DeBord, 967 S.W.2d 352, 352–53 (Tex. 1998).
2
this chapter, a suit to enforce shall be governed by the Texas Rules of Civil
Procedure applicable to the filing of an original lawsuit.” 3 Moreover, when all
parties who may be affected by the enforcement action have been properly
served, “the proceedings shall be as in civil cases generally.” 4 Accordingly, like
interlocutory orders “in civil cases generally,” interlocutory orders in an
enforcement action are appealable only if expressly permitted by statute. 5
Based on the record presented, the “Final Judgment” adjudicating Loe
Warren’s claims against Elizabeth is interlocutory because it does not dispose
of all parties and all issues in the enforcement action.6 The record reflects no
resolution of Elizabeth’s claims against Larry. Accordingly, we do not have
3
… Tex. Fam. Code Ann. § 9.001(b) (Vernon 2006).
4
… Id. § 9.001(c).
5
… See Sheikh v. Sheikh, 248 S.W.3d 381, 393–94 (Tex. App.—Houston
[1st Dist.] 2007, no pet.) (holding that order in enforcement action appointing
master in chancery is not appealable, but reviewable only by mandamus).
6
… See Rotella v. Nelson Architectural Eng’rs, Inc., 251 S.W.3d 216, 218
(Tex. App.—Dallas 2008, no pet.) (holding summary judgment for two
defendants not final and appealable where record contained no severance
orders, nonsuits, or other orders disposing of claims against remaining
defendants). We acknowledge the general rule that a judgment rendered after
a conventional trial can be presumed to fully and finally dispose of all parties
and all issues. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 199 (Tex. 2001).
In an enforcement suit under chapter 9 of the Family Code, however, a
“conventional trial” would be one that adjudicated the enforcement action itself,
which did not occur here.
3
jurisdiction over this appeal, which we dismiss for lack of jurisdiction. We
express no opinion on the merits of Elizabeth’s appeal. 7
PER CURIAM
PANEL: CAYCE, C.J.; LIVINGSTON and HOLMAN, JJ.
DELIVERED: October 16, 2008
7
… See Cherokee Water Co. v. Ross, 698 S.W.2d 363, 365 (Tex. 1985)
(“[O]ur rendition of a judgment on the merits implies a decision by this court
that it had jurisdiction of that which was adjudged.”).
4