Opinion issued July 26, 2018
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-17-00513-CV ——————————— PATRICK MCSHANE, Appellant V. CLAUDIA MCSHANE, AS NEXT FRIEND OF J. M., Appellee
On Appeal from the 22nd District Court Comal County, Texas Trial Court Case No. C2000-0491A
OPINION
This is an appeal from an order granting an application for a writ of scire
facias to revive a dormant judgment.1 On September 21, 2001, the trial court
1 The Texas Supreme Court transferred this appeal from the Court of Appeals for the Third District of Texas. Misc. Docket No. 17-9066 (Tex. June 20, 2017); see TEX. GOV’T CODE § 73.001 (authorizing transfer of cases). We are unaware of any signed its final judgment, which granted Claudia McShane a divorce from her
husband, Patrick McShane, and awarded her damages on her claim for intentional
infliction of emotional distress.2 Other than filing an abstract of judgment, Claudia
did not attempt to collect on the judgment, and the judgment became dormant. See
TEX. CIV. PRAC. & REM. CODE § 34.001(a). On September 20, 2013, Claudia filed
an application for a writ of scire facias to revive the judgment. See id. § 31.006.
The trial court granted Claudia’s application, impliedly finding that the judgment
was rendered on September 21, 2001.
On appeal, Patrick contends that there is legally insufficient evidence to
support the trial court’s implied finding. He contends that the trial court’s docket
sheet and signed final judgment show that the trial court orally rendered judgment
on February 16, 2001, making Claudia’s application untimely filed. See id. We
disagree.
Although the trial court announced that it had decided to grant the divorce
and award Claudia a judgment for damages on February 16, the trial court did not
actually render judgment on February 16 because numerous issues remained
pending as of that date. The trial court did not officially announce its resolution of
conflict between precedent of that court and this court on any relevant issue. See TEX. R. APP. P. 41.3. 2 Because the parties share the same last name, for clarity, we will refer to them by their first names. 2 all the issues in the lawsuit—including the issues that remained pending as of
February 16—until it signed its final judgment on September 21, 2001. We
therefore hold that Claudia timely filed her application for a writ a scire facias and,
accordingly, affirm the trial court’s order reviving the dormant judgment.
Background
While stationed with the military in Germany in 1984, Patrick McShane met
and married Claudia Maria McShane, a German citizen.3 They moved to the
United States in 1985 and to Texas in 1986, where they had two children—Robert,
born in August 1986, and Joan, born in January 1988.4
In February 2000, Claudia learned, through a counselor, that Joan had
accused Patrick of sexual abusing her.5 Claudia moved out of the house with
Robert and Joan and filed a petition for divorce. In her petition, Claudia sought
numerous forms of relief, including sole managing conservatorship of Robert and
Joan, a disproportionate share of the community property, and child support. She
also asserted, as Joan’s next friend, a claim for intentional inflectional of emotional
distress, seeking actual and exemplary damages. Patrick filed a counter-petition for
divorce, which sought numerous forms of relief as well, including the perfection of 3 McShane v. McShane, No. 03-01-00721-CV, 2003 WL 1338722, at *1 (Tex. App.—Austin Mar. 20, 2003, no pet.) (mem. op.). 4 Id. To protect their privacy, we refer to the McShanes’ children by pseudonyms. 5 Id. at *2.
3 a purchase money lien on Claudia’s homestead and the return of property alleged
to be separate.
The case was tried to a jury. The jury found for Claudia on her IIED claim
and awarded her $934,400 in actual and exemplary damages.
On February 16, 2001, the trial court held a post-trial hearing. The trial
court’s docket sheet from that day indicates that it heard a number of motions,
including Patrick’s motion to impose a purchase money lien on Claudia’s
homestead, which the trial court held in abeyance; Patrick’s motion to compel
Claudia to release Patrick’s separate personal property, which the trial court
granted; and Claudia’s motion for entry of final judgment, with respect to which
the trial court made a number of rulings. Specifically, the docket sheet indicates
that the trial court ruled that Claudia be granted a divorce and appointed managing
conservator of the children, Patrick be appointed possessory conservator with no
access to the children, Patrick pay for child support and the children’s health
insurance, the community personal property and debts be divided
disproportionately in Claudia’s favor, and the community real property be sold and
the proceeds divided. The docket sheet further indicates that the trial court ruled
that Claudia be awarded a judgment for actual and exemplary damages in
accordance with the jury’s verdict: “[Claudia] awarded jdmt for damages,
exemplary damages as awarded by jury.”
4 On June 22, 2011, the trial court held another post-trial hearing. At the June
22 hearing, the trial court heard eight motions filed by Patrick: (1) a motion for the
appointment of a receiver, (2) a motion for the entry of a final decree of divorce,
(3) a motion to require the release of his separate personal property, (4) a motion
for sanctions, (5) a motion to require the separation of Claudia’s attorney’s fees
and expenses, (6) a motion to impose a purchase money lien on Claudia’s
homestead, (7) a motion to impose an equitable lien on Claudia’s separate
property, and (8) a motion to approve the release and payment of appellate
attorney’s fees and appellate record expenses.6 At the close of the June 22 hearing,
Patrick and Claudia “agreed” that “it would not be appropriate” for the trial court
“to enter the final decree of divorce” until it ruled on Patrick’s motions for the two
liens.
On June 27, 2001, the trial court signed an order on the motions heard at the
June 22 hearing. The trial court “conditionally granted” Patrick’s motion for the
entry of a final divorce decree, “subject to” its rulings on the two lien motions, and
ordered that the parties “continue to confer in an attempt to reach agreement as to
the form of the final decree of divorce.” The trial court further ordered that the
parties submit a proposed final decree of divorce within ten days of its rulings on
the lien motions.
6 The trial court also heard Claudia’s motion for contempt. 5 On July 10, 2001, the trial court denied both of Patrick’s motions for liens.
On September 21, 2001, the trial court signed its final judgment. The
judgment was divided into two parts: (1) a final divorce decree and (2) a final
judgment on Claudia’s IIED claim.
The final decree of divorce ordered that (1) Claudia be granted a divorce
from Patrick and that their marriage be dissolved on the ground of insupportability,
(2) Claudia be appointed sole managing conservator of Robert and Joan and
Patrick pay for child support and for Robert and Joan’s health insurance, (3) the
community personal property be divided as specified, (4) the community real
property be sold as specified, (5) Claudia and Patrick each own certain separate
personal property as specified, (6) Claudia be awarded court costs, and (7) all relief
requested but not expressly granted be denied. The final paragraph of the divorce
decree, entitled “Date of Judgment,” stated as follows:
This divorce judicially PRONOUNCED AND RENDERED in court at New Braunfels, Comal County, Texas, on February 16, 2001, and further noted on the court’s docket sheet on the same date, but signed on the date indicated below, immediately above the signature of the Court.
In the final judgment, the trial court stated that “judgment should be
rendered on the verdict in favor of [Claudia] and against Patrick . . . .” The trial
court then ordered that Claudia be awarded a judgment in accordance with the
jury’s verdict:
6 IT IS HEREBY ORDERED, ADJUDGED AND DECREED that [Claudia] have and recover from [Patrick] judgment in the amount of NINE HUNDRED AND THIRTY-FOUR THOUSAND AND FOUR HUNDRED AND NO/100 DOLLARS ($934,400.00), together with interest (i.e., prejudgment interest) on the sum of $650,400.00 (Plaintiff’s actual damages) at the rate of twelve percent (12%) per annum, compounded annually, from May 25, 2000 (the date this cause was filed) to the date this judgment is signed and with interest (i.e., post judgment interest) on said sum of $934,400.00 at the rate of twelve percent (12%) per annum, compounded annually, from the date this judgment is signed until paid, for all of which let execution ISSUE.
On October 10, 2001, the clerk issued an abstract of judgment. The abstract
stated: “[Claudia,] as next friend of [Joan], a minor, recovered judgment on the
21st day of September, 2001, against [Patrick] for the sum of $934,400.00.” The
abstract further stated that prejudgment interest accrued “on the sum of
$660,400.00 . . . from May 23, 2000 to [the] judgment date.”7
Claudia did not otherwise attempt to collect on the judgment for money
damages, and the judgment became dormant. Years later, on September 20, 2013,
Claudia filed an application for a writ of scire facias to revive the dormant
judgment. Patrick filed a motion and briefing in opposition, arguing that Claudia’s
application was untimely filed. In May 2017, without issuing any findings of fact
7 We note a slight discrepancy: The abstract of judgment identifies the date on which suit was filed as May 23, 2000, whereas the final judgment identifies the date as May 25, 2000.
7 or conclusions of law, the trial court signed an order that granted the application
and ordered the issuance of the writ. Patrick appeals.
Scire Facias
In his sole issue, Patrick argues that the trial court erred in reviving the
judgment because there is insufficient evidence that Claudia’s application for the
writ was timely filed. According to Patrick, the evidence shows that the trial court
rendered judgment in February 2001, making Claudia’s deadline to file her
application February 2013. Claudia responds that the evidence shows that the trial
court rendered judgment in September 2001, making her deadline September 2013.
A. Applicable law and standard of review
When, as here, “neither party requests findings of fact and conclusions of
law following a nonjury trial, all fact findings necessary to support the trial court’s
judgment are implied.” Shields Ltd. P’ship v. Bradberry, 526 S.W.3d 471, 480
(Tex. 2017). “When the appellate record includes the reporter’s and clerk’s
records, these implied findings are not conclusive and may be challenged for legal
and factual sufficiency in the appropriate appellate court.” BMC Software Belgium,
N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002).
Under the legal-sufficiency standard, we must credit evidence that supports
the judgment if a reasonable factfinder could, and we must disregard contrary
evidence unless a reasonable factfinder could not. See City of Keller v. Wilson, 168
8 S.W.3d 802, 827 (Tex. 2005). Evidence is legally insufficient to support an implied
finding when (1) the record bears no 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 conclusively establishes the opposite of a vital
fact. See Bradberry, 526 S.W.3d at 480. In reviewing the factual sufficiency of the
evidence, we consider all the evidence and will set aside an implied finding only if
the evidence supporting the finding is so weak or so against the overwhelming
weight of the evidence that the finding is clearly wrong and unjust. See Dow Chem.
Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).
Under the Civil Practice and Remedies Code, “[i]f a writ of execution is not
issued within 10 years after the rendition of a judgment of a court of record or a
justice court, the judgment is dormant . . . .” TEX. CIV. PRAC. & REM.
CODE § 34.001(a). Once dormant, “execution may not be issued on the judgment
unless it is revived.” Id.
To revive a dormant judgment, a judgment creditor may file an application
for a writ of scire facias.8 Id. § 31.006. The creditor must file the application “no
later than two years after the judgment becomes dormant.” Harper v. Spencer &
Assocs., P.C., 446 S.W.3d 53, 55 (Tex. App.—Houston [1st Dist.] 2014, pet.
8 Alternatively, the judgment creditor may file an action of debt. TEX. CIV. PRAC. & REM. CODE § 31.006. 9 denied); see TEX. CIV. PRAC. & REM. CODE § 31.006. Thus, the Civil Practice and
Remedies Code “has the effect of creating a twelve-year residual limitations period
for final judgments.” Harper, 446 S.W.3d at 55.
“In deciding whether a judgment should be revived, the trial court is without
discretion to revive a judgment if the statutory requirements are satisfied.” Webb v.
Yorkshire W. Capital, Inc., No. 05-16-00390-CV, 2017 WL 677825, at *2 (Tex.
App.—Dallas Feb. 21, 2017, pet. denied) (mem. op.). A scire facias proceeding is
normally “a non-evidentiary hearing for which there is no need for findings of fact
and conclusions of law.” Cadle Co. v. Rollins, No. 01-09-00165-CV, 2010 WL
670561, at *2 (Tex. App.—Houston [1st Dist.] Feb. 25, 2010, no pet.) (mem. op.).
But if “the date of rendition of judgment is disputed, the trial court may consider
evidence relevant to the date of rendition.” Cadles of Grassy Meadow, II, LLC v.
Herbert, No. 07-09-00190-CV, 2010 WL 1705307, at *3 (Tex. App.—Amarillo
Apr. 27, 2010, no pet.) (mem. op.).
“The rendition of judgment is a present act, either by spoken word or signed
memorandum, which decides the issues upon which the ruling is made.” S&A Rest.
Corp. v. Leal, 892 S.W.2d 855, 858 (Tex. 1995) (per curiam) (quoting Reese v.
Piperi, 534 S.W.2d 329, 330 (Tex. 1976)). “Generally, a judgment is rendered
when the decision is officially announced orally in open court, by memorandum
10 filed with the clerk, or otherwise announced publicly.” Garza v. Tex. Alcoholic
Beverage Comm’n, 89 S.W.3d 1, 6 (Tex. 2002).
However, “to be an official judgment, the trial court’s oral pronouncement
must indicate an intent to render a full, final, and complete judgment at that point
in time.” Gamboa v. Gamboa, 383 S.W.3d 263, 270 (Tex. App.—San Antonio
2012, no pet.); see Herbert, 2010 WL 1705307, at *4. Thus, a trial court’s oral
pronouncement does not constitute a rendition of judgment if “it announces . . . an
‘intention to render judgment in the future.’” State v. Naylor, 466 S.W.3d 783, 788
(Tex. 2015) (quoting Leal, 892 S.W.2d at 858). Nor does a trial court’s
pronouncement constitute a rendition of judgment if essential issues remain
pending when the pronouncement is made. Gamboa, 383 S.W.3d at 270–71
(holding that trial judge’s oral statement that she was “granting the divorce
effective today” and “approv[ing] the settlement agreement” did not render
judgment when she also mentioned “get[ting] this final agreement done” and
setting deadline for parties to complete agreement when record showed there were
many issues essential to divorce judgment still pending at time of statement).
Additionally, “when there is a question concerning the date judgment was
rendered, the date the judgment was signed prevails over a conflicting docket sheet
entry.” Garza, 89 S.W.3d at 7.
11 B. The trial court properly revived the dormant judgment because Claudia timely filed her application
Patrick argues that the trial court erred in granting Claudia’s application
because Claudia failed to file it within twelve years of the judgment’s rendition.
Patrick contends that the judgment was rendered in February 2001 when the trial
court orally announced its decision to grant the divorce and award Claudia a
judgment for damages. Claudia contends that the judgment was rendered on
September 21, 2001 when the trial court signed its final judgment. Claudia did not
file her application until September 20, 2013. Thus, in granting Claudia’s
application, the trial court impliedly found that the judgment was rendered on
September 21, 2001. We therefore consider whether there is sufficient evidence to
support the trial court’s implied finding. We hold that there is.
When the trial court orally announced its decision to grant the divorce and
award Claudia a judgment for damages at the February 16 hearing, the trial court
did not render a “full, final, and complete” judgment. At the time, there were a
number of pending issues, the resolution of which was necessary to render a final
judgment disposing of all parties and claims. The docket sheet itself notes that two
motions were “held in abeyance”: (1) a motion for severance filed by one of the
parties (the docket sheet does not say who) and (2) Patrick’s motion to impose a
purchase money lien on Claudia’s homestead, which requested relief that Patrick
originally requested in his counter-petition.
12 And although the docket sheet indicates that the trial court ruled that Patrick
pay for child support and the children’s health insurance, that the community
personal property and debts be divided disproportionately in Claudia’s favor, and
that the community real property be sold and the proceeds divided, the docket
sheet does not specify the details of those rulings. That is, the docket sheet does not
specify how much child support Patrick had to pay, the type of health insurance
Patrick had to provide, the pieces of community personal property each spouse was
awarded, or when and for how much the community real property had to be sold.
Indeed, the docket sheet does not even specify the amount of damages awarded to
Claudia or the rate at which interest on those damages will accrue. These and other
issues were not resolved until later, when the trial court signed subsequent orders
and, ultimately, its final judgment.
After the February 16 announcement, the trial court issued an order on June
27 that:
• denied Patrick’s motion for the appointment of a receiver,
• conditionally granted Patrick’s motion for entry of a final divorce decree, subject to the trial court’s rulings on Patrick’s motions for liens, which the order stated that the trial court had “taken under advisement,”
• denied, in part, Claudia’s motion for contempt,
• ordered that Patrick pay Claudia $8,450, representing 26 weekly payments of $325 “due and owing” Claudia and “continue to make” weekly $325 payments to Claudia until further ordered by the trial court,
13 • ordered that Patrick “continue to timely pay” other community debts that he had paid since Claudia’s filing of the divorce action,
• ordered that Patrick pay $4,252.16 “to bring the mortgage payments current on the martial residence” and continue to make “the monthly mortgage payments . . . due and owing . . . for the mortgage . . . on the martial residence,”
• ordered that Patrick pay $1,619.40 “to bring current the mortgage” on another residence and continue to pay “the monthly mortgage payments . . . due and owing for the mortgage” on that residence,
• ordered that the parties list the marital residence and other residence for sale at specified prices, and
• ordered that Patrick “make available . . . the sum of $7,500 to be used exclusively for improvements and repairs to the martial residence . . . .”
And in its July 10 order, the trial court denied Patrick’s motion to impose a
purchase money lien against Claudia’s homestead and his motion to impose an
equitable lien against Claudia’s separate property.
The trial court’s September 21 final judgment represents a “full, final, and
complete” judgment. It resolved the remaining issues in the case. Among other
things, it specified the amount of child support Patrick had to pay, the type of
health insurance Patrick had to provide, and the pieces of community personal
property each spouse was awarded. It also specified further requirements
concerning the sale of the community real property and stated the exact amount of
damages awarded to Claudia. In the final judgment, the trial court also stated that
“judgment should be rendered on the verdict in favor of [Claudia] and against
14 Patrick,” which indicates that the trial court did not attempt to render judgment for
Claudia at the February 16 hearing but rather announced its intent to render
judgment for Claudia in the future. See Naylor, 466 S.W.3d at 788 (trial court’s
pronouncement does not constitute rendition of judgment if it announces intent to
render judgment in future).
Against all this, Patrick contends that the trial court’s February 16 docket
sheet entry constitutes a rendition of judgment under Section 101.026 of the
Family Code. According to Patrick, under Section 101.026, in a suit affecting the
parent-child relationship (SAPCR), the trial court may render judgment on its
docket sheet. See TEX. FAM. CODE § 101.026. Patrick observes that the trial court’s
final divorce decree states that the divorce was “PRONOUNCED AND
RENDERED . . . on February 16, 2001.” Patrick contends that this statement
shows that the trial court intended to render judgment on February 16 under
Section 101.026. We disagree.
Assuming without deciding that this suit is a SAPCR in which judgment
could have been rendered on the trial court’s docket sheet under Section 101.026
of the Family Code, the trial court’s February 16 docket sheet still does not
constitute a rendition of judgment; as discussed above, numerous issues remained
pending when the trial court made its oral rulings on February 16. Moreover, the
statement in the trial court’s final divorce decree refers to the divorce but not to the
15 judgment for damages. In fact, the portion of the final judgment addressing the
judgment for damages states that “judgment should be rendered on the verdict in
favor of [Claudia] and against Patrick.” “Ordinarily, when there is a question
concerning the date judgment was rendered, the date the judgment was signed
prevails over a conflicting docket sheet entry.” Garza, 89 S.W.3d at 7. Thus, the
portion of the final judgment stating that “judgment should be rendered” on
Claudia’s IIED clam in accordance with the jury’s verdict prevails over the
conflicting docket sheet entry, to the extent a conflict actually exists.
We hold that there is sufficient evidence to support the trial court’s implied
finding that it rendered judgment on September 21, 2001. Accordingly, we
overrule Patrick’s sole issue.
Conclusion
We affirm the trial court’s order.
Harvey Brown Justice
Panel consists of Chief Justice Radack and Justices Massengale and Brown.