Higgins v. Higgins

514 S.W.3d 382, 2017 WL 361761, 2017 Tex. App. LEXIS 570
CourtCourt of Appeals of Texas
DecidedJanuary 25, 2017
DocketNo. 04-16-00178-CV
StatusPublished
Cited by5 cases

This text of 514 S.W.3d 382 (Higgins v. Higgins) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Higgins v. Higgins, 514 S.W.3d 382, 2017 WL 361761, 2017 Tex. App. LEXIS 570 (Tex. Ct. App. 2017).

Opinion

MEMORANDUM OPINION

Sandee Bryan Marion, Chief Justice

This is an appeal from the trial court’s granting of appellee’s motion for summary judgment on all of appellant’s claims and a judgment granting appellee’s motion to enforce. We reverse a portion of the trial court’s judgment imposing an equitable lien for attorney’s fees and affirm in all other respects.

BACKGROUND

Virginia Higgins and Edwin Dean Higgins were divorced by an agreed divorce decree signed by the trial court on December 20, 2011. The decree awarded Virginia various assets including the family homestead consisting of approximately 50.63 acres of land in Kerr County and property and a business known as the Kerr Villa Kountry Store. Virginia assumed all debts associated with the 50.63 acres and the Kerr Villa Kountry Store. The decree awarded Edwin various assets including the following:

The sum of $690,000.00 cash payable [by Virginia to Edwin] on or before 90 days after the entry of the Final Decree of Divorce (which shall be entered in the month of September 2011). The payment [385]*385of this sum is to be secured by a lien on the 50.68 acres of land awarded to [Virginia] and by a lien on the business and real property known as the Kerr Villa Kountry Store, which shall be subordinate only to a lien to be placed on said property to obtain the $690,000.00 payoff to [Edwin].

Because the trial court awarded the family homestead to Virginia, the decree contained the following:

It is ordered and decreed that -an encumbrance for owelty of partition is imposed against the entirety of the homestead property described as follows: Legal Description.
The purpose of the encumbrance is to secure the payment of the debt of [Virginia] in favor of [Edwin] of six hundred ninety thousand dollars ($690,000.00), resulting from the award of the homestead in this divorce proceeding. The debt shall bear interest at 0 percent per year and shall be payable as follows: This debt shall be payable in full within ninety (90) days from the date the Court enters this Final Decree of Divorce.
To further evidence the debt, [Virginia] is ORDERED to sign a note payable to [Edwin] in the amount of the debt specified above and payable according to the terms specified above. [Virginia] is FURTHER ORDERED to sign a deed of trust to secure payment of the debt resulting from the owelty of partition.
This debt is part of the division of community property between the parties and shall not constitute or be interpreted to be any form of spousal support, alimony, or child support.

Virginia executed a Real Estate Lien Note in the amount of $690,000 and a Deed of Trust to Secure Owelty of Partition on each property, which reflected, the terms of the divorce decree. The deeds of trust allowed Edwin to foreclose on the 50.63 acres or the .Kerr Villa Kountry -Store if Virginia defaulted on the note,-

No appeal from the decree was taken, and the decree became final.

After the decree was entered, Virginia unsuccessfully attempted to secure a loan to pay Edwin the $690,000. Because Virginia could not pay Edwin the $690,000, Edwin enforced his rights pursuant to the deed of trust and foreclosed on the 50.68 acres. At the foreclosure sale, Edwin bid on and was awarded the 50.63-acre tract. Although originally Virginia’s obligation under the divorce decree, after Edwin purchased the 50.63-acre tract at foreclosure, he was then required to pay Security State Bank & Trust the $48,666.57 balance due on the loan secured by the property. The Kerr Villa Kountry Store was sold for $200,000 to a third party and Edwin received this money.

Edwin then filed a Motion to Enforce and for Contempt. In the motion, Edwin asked the trial court to enforce the property division contained in the divorce decree pursuant to Texas Family Code Chapter 9, and to And Virginia in ■ contempt for not paying the debt associated with the 50.63-acre tract and not paying the debt'owed to the IRS for past-due taxes on the Kerr Villa Kountry Store. Virginia answered the motion and filed a petition,- in which she alleged Edwin was entitled to receive $690,000, but following the foreclosure he received $200,000 in cash and approximately $800,000 in real estate (the 50.63 acres).1 Virginia asked for a declaratory judgment [386]*386that she was entitled to any additional equity in the 50.63 acres acquired by Edwin in excess of $490,0002 and an equitable lien and owelty lien on the real property to the extent the equity exceeded $490,000. Virginia also asked for a constructive trust and an equitable lien on all equity held by Edwin in excess of $690,000. Finally, Virginia alleged Edwin was unjustly enriched, she asked the trial court to render further orders to enforce the property division, and she alleged a cause of action for wrongful foreclosure.

Edwin moved for summary judgment on all of Virginia’s claims. The trial court rendered summary judgment on Virginia’s wrongful foreclosure and constructive trust claims, but denied Edwin’s motion for summary judgment on all other claims. Edwin then filed a second motion for summary judgment on the remaining claims. The trial court granted this motion, which left only Edwin’s motion to enforce and for contempt pending. Following a bench trial, at which the only two witnesses were Virginia and Edwin, the trial court rendered judgment in favor of Edwin. Virginia now appeals both the summary judgment on her claims and the final judgment on Edwin’s motion, to enforce.

ATTORNEY’S FEES

In its final judgment, the trial court awarded Edwin $15,926.08 in attorney’s fees. On appeal, Virginia asserts the trial court erred because Edwin did not segregate the fees attributable to his motion to enforce. Virginia contends the claims she brought in her petition were distinct from the claims Edwin brought in his motion to enforce. According to Virginia, Edwin argued in his motion for summary judgment that all of her claims arose from Family Code chapter 9. But, Virginia asserts her deelaratory judgment claim arose under Civil Practice and Remedies Code chapter 37, and the remainder of her claims (with the exception of her request for enforcement of the property division) were all equitable or tort claims. On appeal, Virginia does not specifically state how Edwin should have segregated his claims, but we interpret her argument as stating Edwin’s attorney’s fees attributable to his motion to enforce under Family Code chapter 9 should be segregated from his fees attributable to defending against her declaratory judgment, equitable, and tort claims.

A trial court may award reasonable attorney’s fees in a chapter 9 proceeding. Tex Fam. Code Ann. § 9.014 (West Supp. 2016). “Texas law [does] not allow[ ] for recovery of attorney’s fees unless authorized by statute or contract.” Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310 (Tex. 2006). “As a result, [attorney’s] fee claimants have always been required to segregate fees between claims for which they are recoverable and claims for which they are not.” Id. at 311. The need to segregate fees is a question of law. Id. at 312.

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514 S.W.3d 382, 2017 WL 361761, 2017 Tex. App. LEXIS 570, Counsel Stack Legal Research, https://law.counselstack.com/opinion/higgins-v-higgins-texapp-2017.