noting propriety afforded him the discretion to decide when to exercise the of attorney's fees award was in part dependent on success on options. As explained above, this issue still presents a live the merits
How later courts described this case
- noting propriety afforded him the discretion to decide when to exercise the of attorney's fees award was in part dependent on success on options. As explained above, this issue still presents a live the merits
Written by the judges who cited it.
The opinion
ACCEPTED
01-14-00601-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
4/2/2015 6:20:13 PM
CHRISTOPHER PRINE
CLERK
GARDERE FILED IN
1st COURT OF APPEALS
attorneys and counselors ■ www.gardere.com HOUSTON, TEXAS
4/2/2015 6:20:13 PM
CHRISTOPHER A. PRINE
John MacVane Clerk
Direct Dial: 713-276-5281
Direct Fax: 713-276-6281
Email: jmacvane@gardere.com
April 2, 2015
Christopher A. Prine, Clerk
Court of Appeals, First District
301 Fannin Street
Houston, TX 77002-2066
Re: No. 01-14-00601-CV; Rosehurst Homeowners Association v. Hughes
Natural Gas, Inc. and Real Provencher
(On appeal from the County Court at Law No. 2 of Harris
County, Texas, Case No. 980933)
Recent Authority Addressing Sufficiency of Evidence to Support
Appellate Fees
Dear Mr. Prine:
Please circulate this letter to the panel assigned to this matter.
An issue in this appeal is whether trial counsel’s unrebutted affidavit
testimony regarding reasonable appellate fees sufficed to support the trial
court’s award of appellate fees to Hughes Natural Gas, Inc. (“Hughes”).
The Fourteenth Court of appeals recently issued an opinion addressing
similar evidence of appellate fees and held that the evidence sufficed to
support the trial court’s award.
Gardere01 - 6576648v.1
GARDERE WYNNE SEWELL LLP
1000 Louisiana, Suite 3400, Houston, Texas 77002-5011 713.276.5500 Phone 713.276.5555 Fax
Austin Dallas Houston Mexico City
April 2, 2015
Page 2
In Messier v. Messier, No. 14-13-00572-CV, 2015 WL 452171, at *10 (Tex.
App.—Houston [14th Dist.] Jan. 27, 2015, no. pet. h.) (a copy of which follows
this letter), the evidence of appellate fees consisted of:
1. Counsel’s testimony;
2. A stipulation to counsel’s rate and qualifications;
3. Billing statements for trial work; and
4. The judge’s presumed familiarity with the complexity of the case, the
size of the record, and potential issues on appeal.
Just as in Messier, trial counsel in this case testified to the amount of
reasonable fees. And—though counsel’s rate and qualifications in this case
were not stipulated—they were never challenged. In addition, trial counsel
provided a lengthy and detailed account of the work performed in the case.
Finally, not only was the trial court in this case presumptively familiar with
the nature of the appeal, it expressly took notice of the contents of its file in
awarding Hughes’s appellate fees. CR 191.
It also bears noting that while Messier involved a fee award under the
Family Code, the trial court awarded appellate fees in this case to sanction
Rosehurst for “significantly interferr[ing] with the Court’s exercise of its core
power to decide issues of fact and questions of law.” CR 191. The trial court’s
findings are therefore entitled to particular deference. See Glass v. Glass, 826
S.W.2d 683, 688 (Tex. App.—Texarkana 1992, writ denied) (“[T]he choice of
the appropriate sanctions is for the trial court to determine, and so long as the
sanctions are within the authority vested in the trial court, they will not be
overturned unless they constitute a clear abuse of discretion.”)
For these reasons, the evidence of appellate fees in this case suffices to
support the trial court’s award, just as the evidence did in Messier.
Sincerely,
John MacVane
Gardere01 - 6576648v.1
April 2, 2015
Page 3
cc: J. Marcus Hill
Hill & Hill, P.C.
1770 St. James Place, Suite 115
Houston, Texas 77056
[via efile]
cc: Kevin Dubose
Alexander Dubose Jefferson & Townsend LLP
1844 Harvard St.
Houston, Texas 77008
[via efile]
cc: Michael P. Fleming
Michael P. Fleming & Associates
440 Louisiana, Suite 1920
Houston, Texas 77002
[via efile]
cc: Mike Stafford [Firm]
Stacy R. Obenhaus [Firm]
Katharine David [Firm]
Gardere01 - 6576648v.1
Messier v. Messier, --- S.W.3d ---- (2015)
[7] former wife's award of appellate attorney fees was
modified on appeal to make it contingent on her success on
2015 WL 452171
appeal.
Only the Westlaw citation is currently available.
OPINION
Court of Appeals of Texas, Affirmed in part; vacated in part; judgment modified in part.
Houston (14th Dist.
Luc J. Messier, Appellant
v. West Headnotes (32)
Katy Shuk Chi Lau Messier, Appellee
NO. 14–13–00572–CV | [1] Appeal and Error
Opinion filed January 27, 2015 Matters Not Necessary to Decision on
Review
Synopsis The appellate court cannot decide moot issues.
Background: Former wife brought postdissolution action
seeking enforcement of order awarding her a share of former Cases that cite this headnote
husband's stock options and clarification of divorce decree.
The 311th District Court, Harris County, Denise Pratt, J., [2] Appeal and Error
entered order requiring former husband to exercise options on Determination of questions of jurisdiction
stock and awarded former wife attorney fees. Former husband in general
appealed.
Mootness is a jurisdictional issue, and the
appellate court is required to review such issues
even if not raised by the parties.
Holdings: The Court of Appeals, Martha Hill Jamison, J.,
held that: Cases that cite this headnote
[1] issues relating to former husband's failure to exercise [3] Divorce
stock options were rendered moot by his compliance with trial Issues not necessary to review
court's order requiring him to exercise the stock options and
Issues raised by former husband on appeal
deliver proceeds to former wife;
relating to trial court's judgment that purported
to clarify the parties' divorce decree and which
[2] divorce decree unambiguously afforded former wife the
found that former husband had breached his
right to determine when her portion of stock options should
fiduciary duty to former wife by failing to
be exercised;
exercise options on her share of stock as required
by the decree were rendered moot by former
[3] trial court was authorized to award former wife attorney
husband's compliance with trial court's order
fees even absent a finding of contempt;
requiring him to exercise the stock options and
deliver proceeds to former wife; trial court's
[4] former wife was not entitled to award for expert witness
“clarifications” of the decree no longer had any
fees;
possible force or effect, given that the options
had been exercised and proceeds distributed to
[5] former wife was not required to segregate fees between
former wife's satisfaction.
claims for which they were recoverable and claims for which
they were not; Cases that cite this headnote
[6] evidence was sufficient to support former wife's award of
appellate attorney fees; and [4] Costs
Particular Actions or Proceedings
West lawNiaxr © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
Messier v. Messier, --- S.W.3d ---- (2015)
Attorney fees are generally not recoverable for Nature of constructive trust
breaches of fiduciary duties. A constructive trust is imposed when one party
holds property that legally belongs to the other.
Cases that cite this headnote
Cases that cite this headnote
[5] Divorce
Methods of Distribution [9] Trusts
Divorce Nature of constructive trust
Construction and interpretation The scope and application of a constructive trust
Divorce decree unambiguously afforded former is generally left up to the court imposing it.
wife the right to determine when her portion
of stock options should be exercised; contrary Cases that cite this headnote
to former husband's assertion on appeal, the
constructive trust was not created to afford him [10] Appeal and Error
discretion in exercising the options in order Attorney fees
to maximize former wife's benefit, and the
Appeal and Error
additional language in the decree regarding who
Questions of Fact on Motions or Other
had control of the options in the event of former
Interlocutory or Special Proceedings
husband's death may have been included simply
The appellate court reviews a trial court's
to prevent any confusion should former husband
decision to grant attorney fees under an abuse of
die before the options were exercised.
discretion standard, but reviews the amount of
Cases that cite this headnote attorney fees awarded under a legal sufficiency
standard.
[6] Divorce Cases that cite this headnote
Amendments, additional proofs, and trial of
cause anew
[11] Divorce
Divorce
Conduct of litigation; misconduct in general
Enforcement and arrearages
Divorce
A trial court's ruling on a motion for enforcement
Nature of proceeding as factor in general
of divorce decree is reviewed under an abuse
Trial court was authorized to award former
of discretion standard; however, issues regarding
wife attorney fees in action to enforce divorce
interpretation of a divorce decree are subject to
decree even absent a finding of contempt;
de novo review on appeal.
regardless of whether trial court held former
Cases that cite this headnote husband in contempt, former wife nonetheless
was required to pursue the lawsuit after former
husband refused to exercise her share of parties'
[7] Divorce
stock options upon her demand and deliver the
Authority and discretion of court
proceeds to her, and fee statute authorized trial
If the divorce decree, when read as a whole, is court to award reasonable attorney fees in a
unambiguous as to the property's disposition, the proceeding to enforce a decree. Tex. Fam. Code
court must effectuate the order in light of the Ann. § 9.014.
literal language used.
Cases that cite this headnote
Cases that cite this headnote
[12] Divorce
[8] Trusts Nature of proceeding as factor in general
West lawNiaxr © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
Messier v. Messier, --- S.W.3d ---- (2015)
Divorce required to properly perform the legal service;
Attorney Fees the novelty and difficulty of the questions
A trial court may award reasonable attorney fees involved; the customary fees charged in the local
in a divorce decree enforcement or clarification legal community for similar legal services; the
action. amount involved and the results obtained; the
nature and length of the professional relationship
Cases that cite this headnote with the client; and the experience, reputation
and ability of the lawyer performing the services.
[13] Divorce Cases that cite this headnote
Existence of other remedy
Contempt is not the only available remedy in a
[17] Costs
suit to enforce a divorce decree.
Evidence as to items
Cases that cite this headnote When determining whether the amount of an
attorney fee award is reasonable, a trial court
need not hear evidence on each reasonableness
[14] Divorce
factor but can consider the entire record,
Estoppel
the evidence presented on reasonableness, the
Evidence was sufficient to establish
amount in controversy, the common knowledge
reasonableness of attorney fees awarded to
of the participants as lawyers and judges, and the
former wife who succeeded in action to enforce
relative success of the parties.
divorce decree; having stipulated to opposing
counsel's qualifications and that he would Cases that cite this headnote
provide testimony supporting the reasonableness
of his fees, without the necessity of actually
[18] Divorce
having to provide such testimony, and having
Particular services
failed to contest the evidence of fees, former
husband's counsel essentially conceded that there Divorce
was at least some evidence to support the Nature of proceeding as factor in general
reasonableness of the fees. Former wife was not entitled to award for expert
witness fees, in postdissolution divorce decree
Cases that cite this headnote enforcement action; the statutes authorizing
awards of attorney fees and costs in enforcement
[15] Appeal and Error actions simply did not allow for an award
Total failure of proof of expert witness expenses in an enforcement
action. Tex. Fam. Code Ann. §§ 9.013, 9.014.
The appellate court will reverse a determination
of the reasonableness of attorney fees awarded Cases that cite this headnote
on the basis of a legal sufficiency challenge
only if there is no evidence to support the
determination. [19] Costs
Experts
Cases that cite this headnote Generally speaking, the fee of an expert witness
constitutes an incidental expense in preparation
[16] Costs for trial and is not recoverable as costs.
Items and amount; hours; rate
Cases that cite this headnote
Factors that a fact finder should consider when
determining the reasonableness of an attorney
fee award include: the time, labor and skill [20] Costs
West lawNiaxr © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3
Messier v. Messier, --- S.W.3d ---- (2015)
American rule; necessity of contractual or of the proceeds to her, and former wife's counsel
statutory authorization or grounds in equity testified that the billing statements admitted into
Costs evidence represented “fees that were incurred
Form and requisites of application in solely for this enforcement,” to which former
general husband's counsel did not object.
Absent a contract or statute, trial courts do not Cases that cite this headnote
have inherent authority to require one party
to pay another party's attorney's fees; thus,
claimants generally are required to segregate fees [24] Costs
between claims for which they are recoverable Form and requisites of application in
and claims for which they are not. general
The party seeking to recover attorney fees has
Cases that cite this headnote the burden of demonstrating that segregation
between claims for which fees are recoverable
[21] Costs and claims for which they are not is unnecessary.
Form and requisites of application in
Cases that cite this headnote
general
When discrete legal services advance both
a recoverable and unrecoverable claim, the [25] Appeal and Error
resulting fees are considered intertwined and Attorney fees
need not be segregated between claims for which A trial court's award of appellate attorney fees is
they are recoverable and claims for which they reviewed for an abuse of discretion.
are not.
Cases that cite this headnote
Cases that cite this headnote
[26] Costs
[22] Costs Taxation of costs on appeal or error
Form and requisites of application in To support an award of appellate attorney
general fees, there must be evidence of the fees'
If any attorney's fees relate solely to a reasonableness pertaining to appellate work.
claim for which fees are unrecoverable, a
claimant must segregate the recoverable from the Cases that cite this headnote
unrecoverable fees.
[27] Divorce
Cases that cite this headnote
Appeal or review
Divorce
[23] Divorce Evidence in general
Affidavit, summary or itemization
Evidence was sufficient to support former
Former wife was not required to segregate wife's award of appellate attorney fees, in
fees between claims for which they were postdissolution action to enforce divorce decree;
recoverable and claims for which they were not, former husband's counsel stipulated to the
in postdissolution divorce decree enforcement qualifications and rate charged by former wife's
action; all of former wife's causes of action counsel, billing statements were admitted into
involved essentially the same allegations evidence showing the work done on trial of the
regarding the same facts and sought essentially case, and the judge herself would have been
the same ultimate relief, which was an order familiar with the complexity of the case, the size
requiring former husband to exercise her share of of the record, and potential issues on appeal.
stock options as she directed and disbursement
West lawNiaxr © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4
Messier v. Messier, --- S.W.3d ---- (2015)
Trial court's order requiring former husband to
Cases that cite this headnote pay former wife's appellate fees within a day
after she perfected her appeal in an intermediate
[28] Costs appellate court or sought review in the Supreme
Taxation of costs on appeal or error Court and providing that post-judgment interest
would begin to accrue on the amount awarded
A trial court may not grant a party an
for appellate fees as of the date the trial
unconditional award of appellate attorney fees
court entered its judgment in the postdissolution
because to do so could penalize a party for taking
divorce decree enforcement action was modified
a meritorious appeal.
by Court of Appeals to clarify that payment of
Cases that cite this headnote the fees was not due, and interest on the fees
did not begin, until the appellate court issued its
judgment.
[29] Appeal and Error
Modifying provisions of judgment or order Cases that cite this headnote
An unconditional award of attorney fees for
appeal does not require reversal; instead, the
appellate court may modify a trial court's
judgment to make the award of appellate On Appeal from the 311th District Court, Harris County,
attorney's fees contingent upon the receiving Texas, Trial Court Cause No. 2009–45158. Denise Pratt,
party's success on appeal. Judge
Cases that cite this headnote Attorneys and Law Firms
Sallee S. Smyth, Richmond, TX, for Appellant.
[30] Divorce
Attorney fees and costs Pamela E. George, Bobby King Newman, Houston, TX, for
Trial court's order awarding former wife Appellee.
appellate attorney fees in postdissolution action
Panel consists of Justices Boyce, Jamison, and Donovan.
to enforce divorce decree was modified by Court
of Appeals to make it contingent on former wife's
success on appeal.
OPINION
Cases that cite this headnote
Martha Hill Jamison, Justice
[31] Costs *1 Luc J. Messier appeals from the trial court's order
Taxation of costs on appeal or error purporting to enforce and clarify portions of the final decree
Because an award of appellate fees depends on of divorce between Luc and his ex-wife, Katy Shuk Chi Lau
the outcome of the appeal, it is not a final award Messier. The issues below and on appeal revolve around
until the appeal is concluded and the appellate community property stock options held in Luc's name. A
court issues its judgment; thus, the fees will portion of these options were awarded to Katy in the decree,
not be due and interest on those fees will not and the principal dispute concerns whether Luc was required
begin to accrue until the appellate court issues its to exercise the options upon Katy's demand or, instead, was
judgment. entitled or required to use his own discretion in deciding
when to execute them. The trial court determined that the
Cases that cite this headnote options had to be exercised on Katy's demand and issued an
order providing for enforcement mechanisms. The trial court
[32] Divorce further found that, in failing to exercise the options on Katy's
Attorney fees and costs demand, Luc breached his fiduciary duty to Katy, and the
court awarded Katy attorney's fees.
West lawNiaxr © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5
Messier v. Messier, --- S.W.3d ---- (2015)
restrictions of the Company's Stock Incentive Plan ... as
In four issues, Luc contends that the trial court erred in (1) well as other restrictions that may be imposed by the
construing the decree as requiring Luc to exercise the options Company, such as those designated in the Company's
on Katy's demand, (2) “clarifying” the decree by adding insider trading policy.
detailed orders for Luc to perform and consequences for
failure to do so, (3) holding Luc breached his fiduciary duty, Pursuant to the terms of the Plans, the stock options
and (4) awarding Katy her attorney's fees. Because certain awarded to [Katy] cannot be assigned and/or transferred
claims and issues have become moot during the pendency from [Luc] to [Katy] by the Company. The parties
of the appeal, we vacate the portions of the trial court's acknowledge that (i) the stock options awarded to [Katy]
order that purport to clarify the divorce decree and that hold may be exercisable only by [Luc] (or [Luc's] legal
Luc breached his fiduciary duty to Katy, and we dismiss representative or estate) and (ii) the exercise of the stock
those claims. Additionally, we modify the award of Katy's options may be subject to restrictions by reason of [Luc's]
attorney's fees. We affirm the trial court's order as modified. employment, including but not limited to the applicable
insider trading rules and regulations. However, [Katy] shall
have equitable ownership of the stock options awarded to
[Katy].
I. Background
[Katy's] stock options are subject to a constructive trust.
The final decree was signed on February 11, 2011. Among [Katy's] rights in and to the stock options awarded to
other things, the decree divided the marital estate and [Katy] herein, and all benefits appurtenant thereto, shall
determined issues relating to the custody of the children of inure to the benefit of [Katy's] heirs, executors and assigns.
the marriage. 1 As part of the division of property, Katy Similarly, [Luc's] obligations as set forth herein shall
was awarded a 60% interest and Luc a 40% interest in a be binding on [Luc] and on [Luc's] heirs, executors,
number of stock options that Luc had earned through his administrators and assigns. Upon the death of [Luc], any
employment during the marriage as a senior executive for stock options awarded to [Katy] which are still exercisable
ConocoPhillips. 2 Specifically, as to Luc's share, the decree shall be exercised by [Luc's] executor or administrator, or
awarded him “[t]he following ConocoPhillips Stock Option by the person who acquires such stock options by will or
Awards, representing 40% of the community portions from the laws of descent and distribution, or otherwise by reason
[Luc's] employment, subject to all related tax liabilities and of the death of [Luc], as directed by [Katy].
withholdings....” The decree then listed specific numbers of
[Luc] shall account for taxes assessed on the exercised
options from among nine sets of options earned on particular
stock options and shall cause the proceeds from the stock
days, for example: “16,320 options of the vested options
option exercise, net of taxes assessed, to be transferred to
attributable to the 40,800 options from the 02/08/07 award
[Katy]. [Katy] shall pay all taxes related to any portion
with an exercise price of $66.37.” In the portion of the decree
of benefits awarded to her herein by either reporting
awarding property to Katy, it awarded her “[a] portion of
the income and related withholdings on her return(s), or
the benefits, if any, received by Luc ... upon exercise of the
reimbursing [Luc] for any taxes he is required to pay on
following ConocoPhillips Stock Option Awards, representing
amounts awarded to her that are in excess of the related
60% of the community portions from [Luc's] employment,
withholdings on her portion.
subject to all related actual tax liabilities and withholdings....”
It then listed nine sets of options corresponding to the nine When [Luc] exercises any option in which [Katy] has an
sets listed for Luc, for example, “24,480 options of the vested interest ..., he will account to her by delivering the net
options attributable to the 40,800 options from the 02/08/07 proceeds. The division of the options will be proportionate
award with an exercise price of $66.37.” between [Luc's] separate property and the community
property portions henceforth owned jointly between [Luc]
*2 A subsequent section of the decree contained “Special and [Katy], and the division of the community property
Provisions Regarding Stock Options.” This section stated in portions of the options shall be 60% to [Katy] and 40% to
part: [Luc].
The award to [Katy] of a portion of the community stock
options is subject to all of the terms, conditions and
West lawNocr © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6
Messier v. Messier, --- S.W.3d ---- (2015)
In April 2012, Katy filed suit in the court of continuing court stated that the fees were “warranted for numerous
jurisdiction after Luc declined to exercise the stock options reasons including the delay caused by [Luc's] refusal
on her demand. 3 In her Third Amended Motion, her live to exercise [options] upon [Katy's] request.” The court
pleading at the time of trial, Katy essentially contended that also stated that Luc had stipulated to the amount and
the final decree unambiguously established rights and duties reasonableness of the fees. The court subsequently issued
that Luc had failed to follow. On that basis, she sought a set of 134 separately numbered findings of fact and
enforcement of the decree, damages for breach of fiduciary conclusions of law. Luc requested additional findings.
duty, imposition of a fine among other relief for contempt, Among the findings, the court stated that Luc “did not have
an accounting, and declaratory judgment setting forth Luc's unlimited discretion as to whether to exercise the stock
obligations relating to the options. In the alternative, she options awarded to Katy” and he breached his fiduciary duty
sought clarification of the decree. and failed to comply with the decree when he refused to
exercise options as Katy requested. During oral argument
*3 During a hearing on December 19, 2012, Luc testified before this court, counsel representing both parties informed
that he believed that under the final decree, he had a duty the court that Luc has exercised all of the stock options that
as the constructive trustee to use his discretion in deciding were the subject of this action and delivered the proceeds to
when to exercise the options so as to maximize the benefit for Katy.
Katy. Luc introduced evidence that the options had increased
significantly in value from the time of Katy's demand to the
time of trial. Luc acknowledged, however, that at least a part II. The Mootness Doctrine
of his motivation in refusing to exercise the options upon
Katy's demand was to prevent Katy from leaving the country [1] [2] [3] As stated, counsel for both parties have
with the children in violation of travel restrictions placed upon represented to this court that Luc has, in fact, exercised
her in the final decree. Katy presented a financial expert who all of the options assigned to Katy in the decree and
emphasized the significant differences between the financial delivered the proceeds to her as per her request. In post-
situations of Luc and Katy and suggested Katy had a more submission briefing, Katy's counsel has indicated acceptance
immediate need for access to the options proceeds than did of Luc's performance and no intention to pursue any further
Luc. enforcement, claims, or remedies concerning the exercise of
the options and distribution of the proceeds. We cannot decide
The court signed an Order of Enforcement of Final Decree of moot issues. See, e.g., Valley Baptist Med. Ctr. v. Gonzalez,33
Divorce and Order of Clarification of Property Division on S.W.3d 821, 822 (Tex.2000) (per curiam) (holding appeal
March 25, 2013. In the order, the court held that Luc breached of trial court's order became moot once appellant complied
his fiduciary duty as constructive trustee of Katy's stock with order and court of appeals was notified of compliance
options by failing to exercise the options on her request. The and court of appeals erred in issuing advisory opinion on
order also included declarations or clarifications requiring merits of appeal). 6 The question then becomes which, if
Luc to exercise within 24 hours the options that Katy already any, of Luc's appellate issues still present live controversies
had requested be exercised and imposing a fine of $5,000 requiring resolution by this court. See Robinson v. Alief I.S.D.,
a day for each business day that he failed to do so. 4 The 298 S.W.3d 321, 324 (Tex.App.–Houston [14th Dist.] 2009,
court further ordered Luc to exercise any options requested pet. denied) (“The mootness doctrine precludes a court from
by Katy no later than 10 a.m. on the first day following rendering an advisory opinion in a case where there is no
the expiration of 48 hours from the receipt of written notice live controversy.”); Thompson v. Ricardo, 269 S.W.3d 100,
to exercise the options. The order additionally included 103 (Tex.App.–Houston [14th Dist.] 2008, no pet.) (“[I]f
provisions governing the possibility that requests may come a judgment cannot have a practical effect on an existing
during periods when Luc was prohibited from exercising the controversy, the case is moot and any opinion issued on
options and provisions ensuring distribution of the proceeds the merits in the appeal would constitute an impermissible
to Katy. advisory opinion.”).
In its order, the court further awarded Katy her “reasonable *4 As set forth above, Luc raises four issues in this appeal,
and necessary” attorney's fees and costs of $59,198.75, plus contending the trial court erred in (1) construing the decree
additional amounts in the event Luc filed an appeal. 5 The as requiring Luc exercise the options on Katy's demand,
West lawNocr © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7
Messier v. Messier, --- S.W.3d ---- (2015)
(2) “clarifying” the decree by adding detailed orders for 816736, at *5 (Tex.App.–Austin Oct. 14, 1999, pet. denied)
Luc to perform as directed and consequences should he (not designated for publication) (vacating judgment on claim
fail to do so, (3) holding Luc breached his fiduciary duty, rendered moot by change in the law and dismissing that
and (4) awarding Katy attorney's fees. The attorney's fees claim). 7
issue clearly still presents a live controversy as Katy has
not relinquished her claim to the award and Luc has not *5 We will now proceed to consider the remaining live
conceded that he should have to pay the fees. See Allstate issues concerning the trial court's construction of the decree
Ins. Co. v. Hallman, 159 S.W.3d 640, 642–43 (Tex.2005) and award of attorney's fees. See In re Kellogg Brown & Root,
(holding that a dispute concerning attorney's fees preserved Inc., 166 S.W.3d 732, 737 (Tex.2005) (orig. proceeding) (“A
a live controversy in an otherwise moot appeal); Camarena case is not rendered moot simply because some of the issues
v. Tex. Emp't Comm'n, 754 S.W.2d 149, 150–51 (Tex.1988) become moot during the appellate process.”).
(same). Similarly, the question of who possessed the right
to decide when the options would be exercised is likewise
a live controversy because in exercising the options and
distributing the proceeds to Katy, Luc did not concede that III. Construction of the Decree
she had the right to demand he take these actions and, if Luc is
[5] In his first issue, Luc contends that the trial court erred in
correct that he had the right to determine when to exercise the
interpreting the decree as requiring him to exercise the options
options, there would be no basis for awarding attorney's fees
on Katy's demand. To the contrary, Luc asserts that the decree
to Katy. See Camarena, 754 S.W.2d at 151 (noting propriety
afforded him the discretion to decide when to exercise the
of attorney's fees award was in part dependent on success on
options. As explained above, this issue still presents a live
the merits). These two issues are, therefore, not moot and still
controversy as it pertains to the question of whether Katy is
need to be resolved in this appeal.
entitled to her attorney's fees.
[4] However, because the trial court's “clarifications” no
[6] [7] A trial court's ruling on a motion for enforcement
longer have any possible force or effect, given that the
is reviewed under an abuse of discretion standard; however,
options have been exercised and proceeds distributed to
issues regarding interpretation of a divorce decree are subject
Katy's satisfaction, the clarifications and the appellate issue
to de novo review on appeal. Shanks v. Treadway, 110
challenging them have been rendered moot. Likewise,
S.W.3d 444, 447 (Tex.2003). The general rules regarding
because the only remedy clearly provided based on the breach
the construction of judgments are applied. Id. “If the decree,
of fiduciary duty finding was the clarifications, and they
when read as a whole, is unambiguous as to the property's
have no possible force or effect, the breach of fiduciary
disposition, the court must effectuate the order in light
duty issue is also rendered moot. Accordingly, we vacate
of the literal language used.” Id. We agree with the trial
the portions of the trial court's judgment that purport to
court that the decree unambiguously afforded Katy the right
clarify the divorce decree and that hold Luc breached his
to determine when her portion of the options should be
fiduciary duty to Katy, and we dismiss Katy's causes of
exercised.
action seeking clarification and alleging breach of fiduciary
duty. See Houston Mun. Emps. Pension Sys. v. Ferrell, 248
Luc's primary argument is a negative one: at no point in the
S.W.3d 151, 153–54, 156–57 (Tex.2007) (vacating portions
decree does it expressly require him to exercise the options
of court of appeals' judgment and trial court's order that
on Katy's demand. The decree, however, also is devoid of any
became moot after plaintiff nonsuited cause of action and
express language authorizing or requiring Luc to use his own
dismissing that cause of action); Daftary v. Prestonwood
discretion regarding when to exercise the options. Moreover,
Mkt. Square, Ltd., 399 S.W.3d 708, 710 (Tex.App.–Dallas
the decree clearly awards certain of the options to Katy as her
2013, pet. denied) (vacating portion of judgment awarding
property and gives her control over that property.
possession of property and dismissing moot claim); Lawton v.
Lawton, No. 01–12–00932–CV, 2014 WL 3408699, at *1, 5
Luc acknowledged in his testimony that Katy's options could
(Tex.App.–Houston [1st Dist.] July 10, 2014, no pet.) (mem.
be exercised separately from his own options, even those
op.) (vacating portion of order granting summary judgment
on moot claims and dismissing those claims); McConnell awarded on the same day. 8 Indeed, the decree culls out
v. State Farm Lloyds, No. 03–98–00078–CV, 1999 WL a specific number of options for Katy for each date on
which options were awarded to Luc. As explained in the
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Messier v. Messier, --- S.W.3d ---- (2015)
decree, the ConocoPhillips Stock Incentive Plan prevented parallel fashion, the decree would have expressly authorized
transfer of ownership of the options themselves; Katy could Katy to direct the exercise of any remaining options during
receive the proceeds only upon exercise. For this reason, Luc's lifetime if the trial court had intended to create such a
the decree awarded her “[a] portion of the benefits, if right. However, as discussed above, the decree clearly gave
any, received by Luc ... upon exercise of the following ... Katy the right to exercise her options during Luc's lifetime.
Awards,” and it described her ownership of the options as The additional language regarding who had control of the
“equitable ownership” and established a constructive trust options in the event of Luc's death may have been included
over the options prior to their exercise. Equitable ownership simply to prevent any confusion should Luc die before the
is commonly defined as “the present right to compel legal options were exercised.
title.” See, e.g., AHF–Arbors at Huntsville I, LLC v. Walker
Cnty. Appraisal Dist., 410 S.W.3d 831, 837 (Tex.2012). The The trial court did not err in holding that the decree
court, by awarding equitable ownership, therefore intended unambiguously gave Katy the right to determine when the
to give Katy the right to direct when the options would be options assigned to her would be exercised. Accordingly, we
exercised. 9 The decree repeatedly describes the award to overrule Luc's first issue.
Katy as “[t]he award to [Katy] of a portion of the community
stock options” and “the stock options awarded to [Katy].” It
is clear that this was Katy's property. IV. Attorney's Fees & Expenses
*6 [8] [9] Luc insists that the creation of a constructive [10] In his fourth issue, Luc challenges the trial court's award
trust necessarily provided him with the authority and of $59,198.75 in attorney's fees, costs, and expenses. We
discretion to determine when the options awarded to Katy review a trial court's decision to grant attorney's fees under
were to be exercised, but in doing so, he appears to an abuse of discretion standard, but we review the amount
misunderstand the nature of a constructive trust. 10
A of attorney's fees awarded under a legal sufficiency standard.
constructive trust is imposed when one party holds property Am. Risk Ins. Co. v. Abousway, No. 14–13–00124–CV, 2014
that legally belongs to the other. See In re Marriage of WL 2767402, at *5 (Tex.App.–Houston [14th Dist.] June 17,
Harrison, 310 S.W.3d 209, 214 (Tex.App.–Amarillo 2010, 2014, no pet.) (mem. op.).
pet. denied) (“[C]onstructive trusts are used to right a wrong
or prevent unjust enrichment....”). The scope and application Luc raises numerous sub-issues related to this award, and
of a constructive trust is generally left up to the court we have grouped them into the following categories for
imposing it. Baker Botts, L.L.P. v. Cailloux, 224 S.W.3d 723, discussion purposes: (1) the award was in error because Katy
736 (Tex.App.–San Antonio 2007, pet. denied). There is no did not succeed on her contempt claim, (2) the evidence is
indication in the court's creation of a constructive trust or the legally insufficient to support the award, (3) there is no legal
language of the decree that gave Luc discretion to determine or factual basis for the award of expert fees, (4) Katy failed
when to exercise the options. to properly segregate fees for causes of action on which fees
are recoverable from those for which they are not, and (5) the
Luc additionally points to language in the decree providing award of appellate fees was in error for multiple reasons. We
that “[w]hen [he] exercises any option in which [Katy] has will address each set of arguments in turn, finding merit in
an interest ..., he will account to her by delivering the net some but not all.
proceeds” as indicating he was to exercise his discretion in
determining when to exercise her options. This language,
A. Contempt Claim
however, merely reiterates the fact that only Luc could legally
*7 [11] We begin with Luc's assertion that Katy was not
perform the mechanical process of exercising the options and
entitled to recover attorney's fees because the trial court did
describes what must happen once he performs that function.
not hold Luc in contempt. The gist of the argument appears
It does not suggest that he had the right to determine when the
to be that (1) the trial court did not hold Luc in contempt;
options were exercised.
(2) therefore, it must have granted Katy judgment based
on her breach of fiduciary duty cause of action; and (3)
Next, Luc points to decree language providing that Katy had
attorney's fees generally cannot be recovered on a claim for
a right to direct the exercise of any remaining options upon
breach of fiduciary duty. See Hollister v. Maloney, Martin &
Luc's death. Luc relies on this language to argue that, in
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Messier v. Messier, --- S.W.3d ---- (2015)
Mitchell LLP, No. 14–12–00529–CV, 2013 WL 2149823, at the questions involved; the customary fees charged in the
*2 (Tex.App.–Houston [14th Dist.] May 16, 2013, no pet.) local legal community for similar legal services; the amount
(mem. op.). involved and the results obtained; the nature and length of the
professional relationship with the client; and the experience,
[12] [13] Katy pleaded generally for attorney's fees and reputation and ability of the lawyer performing the services.
pleaded several grounds that could potentially support an Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d
award of attorney's fees, including a declaratory judgment 812, 818 (Tex.1997). The trial court does not need to hear
action and enforcement and clarification of the decree. In evidence on each factor but can consider the entire record,
making the award, the court did not state the basis for its the evidence presented on reasonableness, the amount in
decision but stated that “[t]he award of attorneys' fees to controversy, the common knowledge of the participants as
[Katy] is warranted for numerous reason[s] including the lawyers and judges, and the relative success of the parties.
delay caused by [Luc's] refusal to exercise upon [Katy's] In re Marriage of C.A.S. & D.P.S., 405 S.W.3d 373, 387
request, options equitably owned by [Katy].” This language (Tex.App.–Dallas 2013, no pet.); Hagedorn v. Tisdale, 73
links the award to the necessity of filing the enforcement S.W.3d 341, 353 (Tex.App.–Amarillo 2002, no pet.).
action. A trial court may award reasonable attorney's fees in
an enforcement or clarification action. See Tex. Fam. Code Luc begins by assailing the trial court's statement in its order
§ 9.014; McKnight v. Trogdon–McKnight, 132 S.W.3d 126, and in its findings of fact and conclusions of law that Luc had
132 (Tex.App.–Houston [14th Dist.] 2004, no pet.). Although stipulated to the reasonableness of Katy's fees. The supposed
the trial court did not provide Katy with all of the relief she stipulation occurred when, toward the end of the trial, Katy's
requested related to the enforcement action (i.e., the trial court counsel began his testimony in support of fees:
did not hold Luc in criminal contempt), it did order Luc to
exercise the options as Katy had previously directed and turn [Luc's counsel]: Your Honor, I will stipulate that if he
the proceeds over to her. Contempt is not the only available testifies, he will testify that the amount that he's claimed
remedy in a suit to enforce a divorce decree. See generally here [apparently indicating Exhibit M150, which was a
Tex. Fam. Code §§ 9.001–.014. Because Katy was required billing statement] is his fees in connection with this matter.
to file suit in order to enforce her right to determine when
[Katy's counsel]: That's correct. And my fees, [expert]
the stock options were to be exercised, the trial court did not
fees, which have been paid through my firm. My fees,
abuse its discretion in awarding attorney's fees to Katy. See
[expert] fees through my firm and [co-counsel's] fees. So if
Tex. Fam. Code § 9.014; Pahlavan v. Ghods, No. 14–02–
I understand the stipulation, he's stipulating not that they be
00585–CV, 2003 WL 21981819, at *1–2 (Tex.App.–Houston
paid, but that the rates and amounts charged are reasonable
[14th Dist.] Aug. 21, 2003, no pet.) (mem. op.). 11 Regardless and necessary.
of whether the trial court held Luc in criminal contempt,
Katy nonetheless was required to pursue the lawsuit after Luc [Luc's counsel]: I stipulate that's what you're going to
refused to exercise the options upon her demand and deliver testify to.
the proceeds to her. 12
[Katy's counsel]: All right. Well, do you stipulate to my
qualifications and rate?
B. Sufficiency of the Evidence
[Luc's counsel]: Yes.
*8 [14] [15] [16] [17] Luc next challenges the
sufficiency of the evidence to support the reasonableness of [Katy's counsel]: All right. And [co-counsel's]?
the attorney's fees awarded. We will reverse a determination
of the reasonableness of attorney's fees on the basis of a [Luc's counsel]: All your experts, yes.
legal sufficiency challenge only if there is no evidence to
[Katy's counsel]: Very good. I would offer Exhibit M150,
support it. See Redwine v. Wright, No. 14–10–00030–CV,
fees that were incurred solely for this enforcement.
2010 WL 5238572, at *2 (Tex.App.–Houston [14th Dist.]
Dec. 16, 2010, no pet.) (mem. op.). Factors that a factfinder ....
should consider when determining the reasonableness of a
fee include: the time, labor and skill required to properly
perform the legal service; the novelty and difficulty of
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Messier v. Messier, --- S.W.3d ---- (2015)
*9 [18] [19] Luc further challenges the award of expert
[Luc's counsel]: May I see it? Your honor, we have no fees in the amount of $27,090.76 on the grounds that there
objection to this as the testimony he would give. We do
is no legal or factual basis for the award. 14 Generally
object to paying fees.
speaking, the fee of an expert witness constitutes an incidental
expense in preparation for trial and is not recoverable as
Although it is not entirely clear exactly how broad the
costs. In re Weisinger, No. 14–12–00558–CV, 2012 WL
stipulation was intended to be, at a minimum, Luc's counsel
3861960, at *2–3 (Tex.App.–Houston [14th Dist.] Sept. 6,
stipulated to Katy's counsel's qualifications and rate and that
2012, orig. proceeding) (mem. op.); see also Stanley Stores,
Katy's counsel's would testify that “the rates and amounts
Inc. v. Chavana, 909 S.W.2d 554, 563 (Tex.App.–Corpus
charged [were] reasonable and necessary.” At the conclusion
Christi 1995, writ denied) (holding the trial court erred in
of this exchange, the trial court admitted the detailed billing
making an equitable award of expert witness fees absent
statement, and Katy's counsel further testified that “all of
statutory authorization). As we explained in Weisinger,
the actions on the [statement] were taken and all of the fees
expert fees have been awarded under certain provisions of
were reasonable and necessary in and around Harris County
the Family Code, such as chapters 6 (governing suits for
for similarly complex cases for similarly qualified lawyers.”
dissolution of marriage) and 106 (concerning suits affecting
Luc's counsel did not ask any questions or present any
the parent-child relationship). Each of the cited chapters,
opposing evidence regarding fees. In addition to its statement
however, contains provisions permitting courts to award
regarding the stipulation, the court further specifically found
expenses in addition to costs and attorney's fees. See Tex.
that the attorney's fees awarded were reasonable given the
Fam. Code § 6.708 (authorizing court to award attorney's
experience and expertise of counsel and the circumstances
fees, costs, and expenses in a divorce action), 106.001
presented in the case.
(authorizing award of costs in SAPCR), 106.002 (authorizing
award of attorney's fees in SAPCR). In contrast, chapter 9,
On appeal, Luc contends that the stipulation regarding what
subchapter A, governing enforcement actions such as this,
Katy's counsel would testify to was insufficient to support
only authorizes the award of attorney's fees and costs. Id. §§
the award of fees because it was only an admission regarding
9.013 (authorizing award of costs in an enforcement action),
what counsel would say and not an agreement the fees were
9.014 (authorizing award of attorney's fees in an enforcement
reasonable and necessary. While this much is true, having
action). Indeed, section 9.013 expressly states that costs may
stipulated to Katy's counsel's qualifications and that he would
be awarded in such actions “as in other civil cases.” Because
provide testimony supporting the reasonableness of his fees
expert fees are neither attorney's fees nor costs, and because
(without the necessity of actually having to provide such
chapter 9, subchapter A does not allow an award of expenses
testimony), and having failed to contest the evidence of fees,
in an enforcement action, the trial court erred in awarding
Luc's counsel essentially conceded that there was at least
some evidence to support the reasonableness of the fees. Katy her expert witness fees. 15 Accordingly, we modify the
At the time, Luc's counsel expressed concern only about trial court's judgment to decrease the award of fees and costs
whether Luc would be required to pay the fees, not about the by $27,090.76.
reasonableness of the fees charged. Moreover, Katy's counsel
then went on to testify as to the reasonableness of the fees and
D. Segregation
provide a detailed billing statement and a contract showing
[20] [21] [22] [23] Next, Luc argues that Katy failed
services provided, time spent, and amount charged. The trial
to properly segregate the fees expended in regards to causes
court was entitled to and—according to its findings and
of action on which attorney's fees are recoverable, such as
conclusions—did consider the entire record, the particular
the enforcement action, from those expended on causes of
circumstances of the case, and the common knowledge of
action for which fees are generally not recoverable, such
the participants as lawyers and judges. See In re Marriage of
as breach of fiduciary duty. Absent a contract or statute,
C.A.S. & D.P.S., 405 S.W.3d at 387; Hagedorn, 73 S.W.3d
trial courts do not have inherent authority to require one
at 353. The evidence is sufficient to support the trial court's
party to pay another party's attorney's fees; thus, claimants
award of attorney's fees. 13 generally are required to segregate fees between claims for
which they are recoverable and claims for which they are not.
Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 311
C. Expert Fees
(Tex.2006). However, when discrete legal services advance
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Messier v. Messier, --- S.W.3d ---- (2015)
both a recoverable and unrecoverable claim, the resulting fees 487, 493 (Tex.App.–Dallas 2005, no pet.). To be proper, there
are considered “intertwined” and need not be segregated in must be evidence of the fees' reasonableness pertaining to
order to be recovered. Id. at 313–14; Alief I.S.D. v. Perry, 440 appellate work. State and County Mut. Fire Ins. Co. ex rel.
S.W.3d 228, 245 (Tex.App.–Houston [14th Dist.] 2013, pet. S. United Gen. Agency of Tex. v. Walker, 228 S.W.3d 404,
denied). Still, if any attorney's fees relate solely to a claim for 410 (Tex.App.–Fort Worth 2007, no pet.). Luc acknowledges
which fees are unrecoverable, a claimant must segregate the that at trial, Katy's lead counsel testified that if the case
recoverable from the unrecoverable fees. Chapa, 212 S.W.3d were appealed, the amounts awarded by the court were
at 313; Perry, 440 S.W.3d at 246. reasonable for attorneys with similar experience to himself
and his co-counsel. Luc asserts, however, that this statement
[24] The party seeking to recover attorney's fees has the was too conclusory and unsupported by other evidence. The
burden of demonstrating that fee segregation is not required. statement, however, was not made in a vacuum. As discussed
Westergren v. Nat'l Prop. Holdings, L.P., 409 S.W.3d 110, above, Luc's counsel stipulated to the qualifications and rate
138 (Tex.App.–Houston [14th Dist.] 2013), aff'd in part, charged by Katy's counsel, billing statements were admitted
rev'd in part on other grounds, No. 13–0801, ––– S.W.3d into evidence showing the work done on trial of the case,
––––, 2015 WL 123099 (Tex.2015). Here, when the trial and the judge herself would have been familiar with the
court rejected Luc's segregation argument, the court had complexity of the case, the size of the record, and potential
before it the parties' pleadings, the evidence presented on the issues on appeal. This evidence was sufficient to support the
substantive issues in the case, the testimony of Katy's counsel, trial court's award of appellate attorney's fees.
and Katy's counsel's billing statements. All of Katy's causes
of action involved essentially the same allegations regarding
the same facts and sought essentially the same ultimate relief: (ii.) Unconditional Award
exercise of the options as she directs and disbursement of [28] [29] [30] Next, Luc complains that the award of
the proceeds to her. Even if segregation were required in appellate fees was not conditioned on Katy's success in the
this case, Katy's counsel testified that the billing statements appeal. A trial court may not grant a party an unconditional
admitted into evidence represented “fees that were incurred award of appellate attorney's fees because to do so could
solely for this enforcement.” Luc's counsel did not object, penalize a party for taking a meritorious appeal. In re Ford
cross-examine Katy's counsel regarding this statement, or Motor Co., 988 S.W.2d 714, 721 (Tex.1998); Watts v. Oliver,
present any evidence contradicting this representation. For 396 S.W.3d 124, 135 n. 3 (Tex.App.–Houston [14th Dist.]
the foregoing reasons, Luc's segregation arguments are 2013, no pet.). However, an unconditional award of attorney's
without merit. fees for appeal 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
E. Appellate Fees on appeal. Keith v. Keith, 221 S.W.3d 156, 171 (Tex.App.–
*10 Lastly, Luc raises several complaints regarding the trial Houston [1st Dist.] 2006, no pet.). Accordingly, we will
court's award of appellate fees to Katy. The court awarded modify the trial court's award of appellate fees in the present
Katy $25,000 in the event of an appeal to an intermediate case to make it contingent on Katy's success on appeal.
court of appeals and $15,000 in the event a petition for review
was filed with the Texas Supreme Court. Luc specifically
complains that the award was not supported by sufficient (iii.) Date Due and Accrual of Interest
evidence, was not conditioned on Katy's success on appeal, [31] [32] Lastly, Luc complains that the trial court ordered
and was ordered to be paid the day after appeal was perfected, him to pay Katy's appellate fees within a day after she
and that Katy was awarded post-judgment interest accruing perfected her appeal in an intermediate appellate court or
on the amount of appellate fees from the date of the trial sought review in the Texas Supreme Court and provided that
court's order. post-judgment interest would begin to accrue on the amount
awarded for appellate fees as of the date the trial court entered
its judgment. We have previously explained that, because an
(i) Sufficiency of the Evidence award of appellate fees depends on the outcome of the appeal,
[25] [26] [27] We generally review a trial court's award of it is not a final award until the appeal is concluded and the
appellate attorney's fees for an abuse of discretion. See, e.g., appellate court issues its judgment; thus, the fees would not be
Law Offices of Windle Turley, P.C. v. French, 164 S.W.3d due and interest on those fees should not begin to accrue until
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*11 We vacate the portions of the trial court's order
the appellate court issues its judgment. See Watts, 396 S.W.3d
that purport to clarify the divorce decree and that hold
at 134–35 (citing Apache Corp. v. Dynegy Midstream Servs.,
Luc breached his fiduciary duty to Katy, and we dismiss
Ltd. P'ship, 214 S.W.3d 554, 566–67 (Tex.App.–Houston
those causes of action. Additionally, we modify the
[14th Dist.] 2006), rev'd in part on other grounds, 294 S.W.3d
amount awarded as attorney's fees and costs by subtracting
164 (Tex.2009), and Protechnics Int'l, Inc. v. Tru–Tag Sys.,
$27,090.76 from the amount awarded. We further modify
Inc., 843 S.W.2d 734, 736 (Tex.App.–Houston [14th Dist.]
the trial court's award of appellate fees to make such fees
1992, no writ)). Accordingly, we further modify the trial
contingent on Katy's success on appeal and to clarify that
court's judgment to clarify that payment of the fees is not due
payment of the fees is not due and interest on the fees does not
and interest on the fees does not begin until the appellate court
begin to accrue until the appellate court issues its judgment.
issues its judgment. See id.
We affirm the remainder of the trial court's order.
V. Conclusion
Footnotes
1 In a prior appeal from the decree, Katy, a native of Hong Kong, challenged the trial court's grant of permanent injunctions concerning
international travel with the children. Messier v. Messier, 389 S.W.3d 904, 905 (Tex.App.–Houston [14th Dist.] 2012, no pet.). This
court modified the decree to remove certain requirements that were not supported by the record, but otherwise affirmed the travel
restrictions and the decree. Id. at 911.
2 The decree confirmed certain other stock options were his separate property.
3 Between the time the final decree issued and Katy filed the present action, the presiding judge of the trial court retired and a new
judge was appointed.
4 The section of the order in which the instructions appear is titled “Declaratory Judgment & Clarification.”
5 As will be discussed below, the order required the appellate fees to be paid the day after a notice of appeal was filed for an appeal to
the court of appeals and the day after the Texas Supreme Court requested briefing if a petition for review was filed with that court.
The appellate fees were not made contingent on a successful defense by Katy. The amount for an appeal to the court of appeals was
set at $25,000, and the amount for a petition for review was set at $15,000.
6 Mootness is a jurisdictional issue, and we are required to review such issues even if not raised by the parties. See M.O. Dental Lab
v. Rape, 139 S.W.3d 671, 673 (Tex.2004); Robinson v. Alief I.S.D., 298 S.W.3d 321, 330 (Tex.App.–Houston [14th Dist.] 2009,
pet. denied).
7 Luc asserts that issues two and three, concerning, respectively, the clarifications and breach of fiduciary duty finding, also are relevant
to the question of whether the trial court properly awarded attorney's fees to Katy. As will be discussed more fully below, because we
find the award of attorney's fees is supported by the trial court's determination that Katy had the right to decide when the options would
be exercised, we need not consider whether the award was additionally supported by the clarifications or the breach of fiduciary duty
finding. We further note that attorney's fees are generally not recoverable for breaches of fiduciary duties. See Hollister v. Maloney,
Martin & Mitchell LLP, No. 14–12–00529–CV, 2013 WL 2149823, at *2 (Tex.App.–Houston [14th Dist.] May 16, 2013, no pet.)
(mem. op.). Issues two and three are therefore moot.
In post-submission briefing, Luc urges application of the collateral consequences exception to the mootness doctrine. “The
‘collateral consequences' exception has been applied when Texas courts have recognized that prejudicial events have occurred
‘whose effects continued to stigmatize helpless or hated individuals long after the unconstitutional judgment had ceased to operate.
Such effects were not absolved by mere dismissal of the cause as moot.’ ” Gen. Land Office v. OXY U.S.A., Inc., 789 S.W.2d 569,
571 (Tex.1990) (quoting Spring Branch I.S.D. v. Reynolds, 764 S.W.2d 16, 19 (Tex.App.–Houston [1st Dist.] 1988, no writ)).
Luc's arguments appear premised on the notion that the mootness of these issues would leave the trial court's order unchanged,
including the finding of a breach of fiduciary duty. He makes no argument that any disadvantage he perceives from the court's
order would persist even once the portion of the order he complains about has been vacated. We find no merit in his argument. See
Reule v. RLZ Invs., 411 S.W.3d 31, 33 (Tex.App.–Houston [14th Dist.] 2013, no pet.) (declining to apply collateral consequences
exception where appellant failed to explain why perceived disadvantage would persist after judgment was vacated).
8 Luc suggests in his brief that “Katy can be assured that Luc's decision to exercise options will be made with the utmost consideration
for time and price as he will be acting, in part, for his own financial benefit, having been awarded 40% of the divisible options, with
others confirmed as his separate property.” But nothing in the record supports this assurance.
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Messier v. Messier, --- S.W.3d ---- (2015)
9 Luc suggests that the fact Katy could not own the options as per the Stock Incentive Plan means that the reference to her equitable
ownership was a “contradiction in terms.” But it is the very fact that she cannot legally own the options that apparently led the court
to describe her ownership as equitable. Moreover, the fact that she could not legally own them does not necessarily mean she cannot
control their exercise.
10 In his reply brief, Luc states without supporting citation that “imposition of a constructive trust ... vests in Luc the right to exercise
the [options] at his discretion in Katy's best interest.” At trial and in his briefing, Luc emphasized that he has significant expertise
regarding his employer and the market value of its stock, and he asserts that the decree required him to use his discretion in exercising
the options in order to maximize the benefit to Katy.
11 See also John J. Sampson & Harry L. Tindall, et. al, Sampson & Tindall's Texas Family Code Annotated 140 (2014) (“Before passage
of [section 9.014] there was no provision for the recovery of attorney's fees against an uncooperative party after a divorce. Thwarting
the order of the court elicited no punitive consequences, even when a party was found to be the wrongdoer. This section now makes
clear that the award of attorney's fees is appropriate in such a fact situation.”).
12 At least one court of appeals has observed that Section 9.014 does not expressly require that the trial court find a party as the prevailing
party before awarding attorney's fees to that party. See In re S.E.C., No. 05–08–00781–CV, 2009 WL 3353624, at *3 (Tex.App.–
Dallas Oct. 20, 2009, no pet.) (mem. op.). “Rather, by its express language, the statute's only requirements are that the award be
‘reasonable’ and in connection with a proceeding to enforce a decree of divorce or annulment providing for a division of property.” Id.
Luc cites one case in support of his argument, Preston v. Preston, No. 04–03–00333–CV, 2004 WL 1835765 (Tex.App.–Houston
[14th Dist.] Aug. 18, 2004, no pet.) (mem. op.). In Preston, we determined that the four-year statute of limitations governing
breach of fiduciary duty causes of action applied where a constructive trust had been created rather than the two-year statute which
generally governs suits to enforce the property. Id. at *2. We addressed the breach of fiduciary duty cause of action, however, as
an action “to enforce the divorce decree.” Section 9.014 authorizes trial courts to award reasonable attorney's fees in a proceeding
to enforce a decree. Nothing in Preston restricts this authority.
13 Luc specifically mentions that the billing statements contained a few entries for an associate attorney and a paralegal. The evidence
was sufficient to support these fees as well. As discussed, Luc's counsel stipulated that Katy's counsel was qualified and would testify
regarding the reasonableness of the charged fees. Katy's counsel also testified in support of the reasonableness and necessity of the
amounts contained within the billing statement. The charged rates were listed in the attorney-client contract that was admitted into
evidence, and the trial judge was permitted to take her own knowledge into account regarding the case and the practice of law.
14 The expert fees were included as a line item in the billing statement by Katy's attorney that was admitted into evidence. In her briefing
to this court, Katy does not offer any rebuttal to Luc's arguments concerning expert fees.
15 In dicta in In re Slanker, 365 S.W.3d 718, 720 (Tex.App.–Texarkana 2012, orig. proceeding), the Sixth Court of Appeals interpreted
dicta in another court of appeals' opinion, Parliament v. Parliament, 860 S.W.2d 144, 147 (Tex.App.–San Antonio 1993, writ denied),
as recognizing that expert witness fees were authorized in enforcement actions. We do not agree with this reading of the Parliament
analysis, wherein the court was merely presenting and rejecting a party's argument. Regardless, as dicta from a sister court, the
discussion in In re Slanker is not precedential. See generally Walden v. Affiliated Computer Servs., Inc., 97 S.W.3d 303, 330 n. 22
(Tex.App.–Houston [14th Dist.] 2003, pet. denied).
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