Terri S. Holloway v. John Paul Land, Jr.

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 2-09-045-CV

TERRI S. HOLLOW AY APPELLANT

V.

JOHN PAUL LAND, JR. APPELLEE

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FROM THE 415TH DISTRICT COURT OF PARKER COUNTY

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MEMORANDUM OPINION 1

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After their divorce, Appellant Terri S. Holloway and her ex-husband, Appellee

John Paul Land, Jr., filed competing motions for enforcement. The trial court held

Land in contempt and awarded both parties money judgments and attorney’s fees.

Holloway appeals, contending in four points that the trial court had no jurisdiction to

sign the amended order on the petitions for enforcement, that the trial court erred by

signing three judgments, that the evidence is legally and factually insufficient to

1  See Tex. R. App. P. 47.4. support the judgment against her, and that the trial court erred by allowing Land to

impermissibly testify about the value of personal property awarded to him in the

decree. 2 Holloway also complains in two points that the contempt order is vague and

void, that the contempt fine imposed against Land is too small, and that she should

have been awarded attorney’s fees and costs for prosecuting the contempt

proceeding. 3 Because we agree that the trial court lacked plenary jurisdiction to sign

the amended order and because we have no appellate jurisdiction to address

Holloway’s complaints about the contempt order, we dismiss this appeal for want of

jurisdiction.

I. Background Facts

In November 2007, Land and Holloway entered into a rule 11 agreement

regarding the terms of their pending divorce, and the trial court approved the

agreement. In December 2007, the trial court signed an agreed final decree of

divorce ordering Land to pay Holloway $5,000 monthly (in two installments of $2,500

each) for six months. The trial court further awarded certain personal property to

Land and ordered Holloway to deliver the property to him at a specific place and

time.

After the divorce, both parties filed petitions for enforcement. Holloway

alleged in her petition that Land had failed to make eight of the ordered $2,500

2  See Terri S. Holloway’s First Amended Appellant’s Brief at 13. 3  See id.

2 payments to her. Land alleged that Holloway had failed to deliver specific items of

personal property that had been awarded to him in the decree.

The trial court held a hearing on the motions on September 25, 2008. Land

stipulated that he had failed to make the eight payments totaling $20,000. Both

parties testified about the personal property that Land alleged Holloway had not

delivered to him. The attorneys testified about their attorney’s fees. At the end of

the hearing, the trial court signed Land’s proposed order awarding $20,000 to

Holloway and $14,750 to Land. The court then rendered judgment that each party

would be responsible for his or her own costs but would pay the other party $4,000

in attorney’s fees, but Land’s proposed order already signed by the court had recited

that each party would be responsible for his or her own attorney’s fees. The trial

court therefore instructed Land’s attorney to prepare a new order that would order

each party to bear his or her own costs and to recover $4,000 in attorney’s fees from

the other party. The trial court instructed Holloway’s attorney to prepare the

contempt order. The record does not indicate that a postjudgment motion extending

the trial court’s plenary power was filed.

On November 14, 2008, the trial court signed an amended order on the

petitions to enforce, awarding Holloway $20,000 and Land $14,750 and ordering

each party to pay the other $4,000 in attorney’s fees and to pay his or her own costs.

A handwritten sentence on the order and before the trial judge’s signature states,

3 “This order supercedes and replaces that certain ‘Order on Petitions for

Enforcement’ signed Sept. 25, 2008.”

Also on November 14, the trial court signed a separate order holding Land in

contempt for his failure to pay the eight $2,500 payments. The court fined Land

$480 for contempt and ordered that he could purge himself of contempt by paying

the $24,000 owed Holloway directly to her attorney’s office within thirty days of the

order.

Holloway filed a motion for new trial after the trial court signed the amended

order. After the motion for new trial was denied, she filed a notice of appeal.

II. Jurisdiction

In her third point, Holloway contends that the trial court lacked jurisdiction to

sign the amended order on the petitions for enforcement because it had lost plenary

power in that the original order signed September 25, 2008, was a final order

disposing of all the issues and parties. W e agree:

[T]he language of an order or judgment can make it final, even though it should have been interlocutory, if that language expressly disposes of all claims and all parties. It is not enough, of course, that the order or judgment merely use the word “final”. The intent to finally dispose of the case must be unequivocally expressed in the words of the order itself. But if that intent is clear from the order, then the order is final and appealable, even though the record does not provide an adequate basis for rendition of judgment. . . .

....

4 [I]f the language of the order is clear and unequivocal, it must be given effect despite any other indications that one or more parties did not intend for the judgment to be final. 4

The judgment entered September 25, 2008, entitled “Order on Petitions for

Enforcement,” appears final. It grants a money judgment to each party, plus interest,

and it orders each party to pay his or her own attorney’s fees and costs.

Accordingly, we hold that the September 25, 2008 judgment is the trial court’s final

judgment.

A judgment cannot be vacated by oral pronouncement or written docket entry;

a trial court must vacate a judgment by signing a written order. 5 Nothing in the

record indicates that the trial court signed a written order vacating the September 25,

2008 judgment within its plenary power. Further, the record does not indicate that

a postjudgment motion extending the trial court’s plenary power was filed.

Consequently, as Land points out, Holloway’s notice of appeal, filed February 12,

2009, is untimely. 6 W e therefore have no jurisdiction to address Holloway’s first four

points.

4  Lehmann v. Har-Con Corp., 39 S.W .3d 191, 200, 206 (Tex. 2001). 5  See Tex. R. Civ. P. 329b(c); Faulkner v. Culver, 851 S.W .2d 187, 188 (Tex. 1993) (orig. proceeding). 6  See Tex. R. App. P. 26.1(a)(1).

5 Further, we have no jurisdiction to address Holloway’s complaints about the

contempt order, signed November 14, 2008, on appeal. 7

III. Conclusion

Because we have no jurisdiction to address any of Holloway’s points, we

dismiss this appeal for want of jurisdiction. 8

LEE ANN DAUPHINOT JUSTICE

PANEL: DAUPHINOT, GARDNER, and MCCOY, JJ.

DELIVERED: June 24, 2010

7  See In re Office of Att’y Gen. of Tex., 215 S.W .3d 913, 915–16 (Tex. App.—Fort W orth 2007, orig. proceeding) (noting that there is no appeal from contempt order or a refusal to hold someone in contempt); Cadle Co. v. Lobingier, 50 S.W .3d 662, 671 (Tex. App.—Fort W orth 2001, pet. denied) (noting that contempt orders are not appealable); see also Tex. Animal Health Comm’n v. Nunley, 647 S.W .2d 951, 952 (Tex. 1983) (agreeing that court of appeals had no jurisdiction to review contempt order on appeal). 8  See Tex. R. App. P. 43.2(f).