Opinion
No. 10-05-00193-CV
Opinion delivered and filed May 9, 2007.
Appeal From the 19th District Court, McLennan County, Texas Trial Court No. 92-3724-1.
Affirmed.
Before Justice VANCE, Justice REYNA, and Judge SCOGGINS
The Honorable R. Al Scoggins, Jr., Judge of the 378th District Court of Ellis County, sitting by assignment of the Chief Justice of the Supreme Court of Texas pursuant to section 74.003(h) of the Government Code. See TEX. GOV'T CODE ANN. ` 74.003(h) (Vernon 2005).
MEMORANDUM OPINION
This is the fourth direct appeal from the divorce proceedings of Sue and Larry Walston. In the latest trial, a jury: (1) determined the fair market value for each of about 100 assets held by the marital estate; (2) found that both parties had engaged in some tortious acts but refused to find that they had engaged in others; (3) found that Central Transportation Systems, Inc. had transported and stored the Walstons' personal property under an agreement with a receiver who acted on the Walstons' behalf; and (4) found that the Walstons owed Central Transportation $35,013 in transportation and storage fees and $5,000 in trial attorney's fees. The court's judgment largely corresponds to the jury's findings. Among other things, the judgment: (1) effects a partition of a Cessna airplane in which Sue and Larry were each found to have an undivided one-half separate property interest by decreeing that Larry had the right to purchase Sue's interest for $40,000; (2) divides the various community property assets between Sue and Larry; (3) awards $39,446 to Central Transportation for transportation and storage fees and trial attorney's fees to be paid out of community property funds in the court's registry; and (4) decrees that $800 of funds in the court's registry (to the extent any funds remained after Central Transportation was paid) be applied to pay an Internal Revenue Service bill for taxes owed on the interest accrued by the funds in the registry.
See Walston v. Walston, 119 S.W.3d 435 (Tex.App.-Waco 2003, no pet.); Walston v. Walston, 971 S.W.2d 687 (Tex.App.-Waco 1998, pet. denied); Walston v. Walston, No. 10-94-169-CV (Tex.App.-Waco June 14, 1995, writ denied) (not designated for publication); see also In re Walston, No. 10-05-421-CV, 2006 WL 301107 (Tex.App.-Waco Feb. 8, 2006, orig. proceeding) (mem. op.) (per curiam); Walston v. Stewart, No. 10-05-135-CV, 2005 WL 3072919 (Tex.App.-Waco Nov. 16, 2005, pet. denied) (mem. op.) (per curiam); In re Walston, No. 10-05-259-CV, 2005 WL 2787651 (Tex.App.-Waco Oct. 26, 2005, orig. proceeding) (mem. op.); Walston v. Lockhart, No. 10-03-183-CV, 2005 WL 428433 (Tex.App.-Waco Feb. 23, 2005, pet. denied) (mem. op.); In re Walston, No. 10-04-354-CV, 2004 WL 2830871 (Tex.App.-Waco Dec. 6, 2004, orig. proceeding) (mem. op.); In re Walston, No. 10-04-330-CV, 2004 WL 2616317 (Tex.App.-Waco Nov. 13, 2004, orig. proceeding) (mem. op.) (per curiam); Walston v. Lockhart, 36 S.W.3d 278 (Tex.App.-Waco 2001, order), disp. on merits, 62 S.W.3d 257 (Tex.App.-Waco 2001, pet. denied) (per curiam).
The court found that Central Transportation is entitled to $34,446 for transportation and storage fees because Central Transportation offered a remittitur of $567 against the jury's finding of $35,013.
Sue contends in eight issues that:
(1) this Court lacks jurisdiction because the trial court's judgment is not final;
(2) the judgment is void because the trial judge is constitutionally disqualified;
(3) the court abused its discretion by sustaining the special exceptions filed by Larry's attorneys and dismissing her conspiracy claims against them;
(4) the court abused its discretion by denying her continuance motions;
(5) the court erred by awarding damages to Central Transportation;
(6) Section 117.054 of the Local Government Code, which permits a trial court clerk to retain 10% of any interest earned by funds in the court's registry, violates her right to due process;
(7) the court failed to divide the community estate in a just and right manner; and
(8) the jury question submitted on her conspiracy claim is erroneous.
We will affirm.
Finality of Judgment
Sue contends in her first issue that this Court does not have jurisdiction because the judgment is too indefinite and uncertain to constitute a final judgment. She argues that the judgment is too indefinite because disputes remain about what documentation she must sign before Larry's purchase of her one-half separate property interest in the Cessna can be effectuated. We disagree.
"After a full trial on the merits, the statement in a judgment that all relief not requested is denied signifies finality." Lehmann v. Har-Con Corp., 39 S.W.3d 191, 201 (Tex. 2001). The judgment in this case has such a statement, and "there is nothing to indicate that the trial court did not intend to finally dispose of the entire case." Moritz v. Preiss, 121 S.W.3d 715, 719 (Tex. 2003). Accordingly, we overrule Sue's first issue.
Constitutional Disqualification
Sue contends in her second issue that the judgment is void because the trial judge is constitutionally disqualified due to his service as counsel in the case.
Under article V, section 11 of the Texas Constitution, a judge is disqualified "when the judge shall have been counsel in the case." TEX. CONST. art. V, § 11. "Before a judge is disqualified on this ground, `it is necessary that the judge acted as counsel for some of the parties in [the] suit before him in some proceeding in which the issues were the same as in the case before him.'" In re O'Connor, 92 S.W.3d 446, 448 (Tex. 2002) (orig. proceeding) (per curiam) (quoting Lade v. Keller, 615 S.W.2d 916, 920 (Tex.Civ.App.-Tyler 1981, no writ)).
Sue contends that the trial judge is disqualified under this provision because he "advocated on Larry's behalf" in a post-judgment hearing regarding the documentation she must sign to effectuate Larry's purchase of her interest in the Cessna. The judge ruled as follows on Sue's motion to release funds Larry deposited in the registry as payment for her interest:
MOTION TO RELEASE FUNDS: The jury found the value of the airplane to be $80,000. It is undisputed that the parties each own an undivided one half separate property interest. The decree gave each party the option of purchasing the interest of the other party for $40,000. Mr. Walston exercised this option and placed that sum of money in the registry of the court to be paid to Mrs. Walston upon the occurrence of certain events. Although requested to release her interest in the Cessna, Mrs. Walston declines to do so and seeks to be paid the funds in the registry of the court without releasing her ownership interest. She takes the position that the family code has no application to this issue because the property issue is one of separate property and therefore § 9.007(c) does not apply to this issue.
The Court declines to sign any order or authorize the release of the purchase money to Mrs. Walston until such time as she relinquishes her interest as would be necessary in any such exchange or purchase and sale transaction. The Court finds no legal grounds for the position taken by Mrs. Walston and that her refusal to release her interest in the Cessna is both arbitrary and capricious and constitutes an abuse of the judicial system. The result of this conduct is to deprive Mr. Walston of both his purchase money and the use of the airplane which he had the right to purchase.
Nevertheless enforcement is prevented by Family Code § 9.007(c) and cases cited hereinabove.
In re Fischer-Stoker, 174 S.W.3d 268 (Tex.App.-Houston [1st Dist.] 2005, orig. proceeding); English v. English, 44 S.W.3d 102 (Tex.App.-Houston [14th Dist.] 2001, no pet.).
In re Fischer-Stoker, 174 S.W.3d 268 (Tex.App.-Houston [1st Dist.] 2005, orig. proceeding); English v. English, 44 S.W.3d 102 (Tex.App.-Houston [14th Dist.] 2001, no pet.).
The Court would urge the Court of Appeals in its wisdom to bring this portion of the case to a conclusion by: 1) order requiring Petitioner to sign the instruments attached hereto, or 2) referral for appropriate hearings concerning enforcement, sanctions and attorney fees, as their jurisdiction might permit.
Sue contends that the last paragraph constitutes a "plea on Larry's behalf" by the trial judge which is "a function of counsel." We disagree.
The trial judge clearly expressed his opinion that he agreed with Larry's position and disagreed with Sue's. Because this litigation has been ongoing since 1992, it is certainly understandable that the trial judge would have an interest in bringing it to a conclusion. We simply cannot agree that the judge "acted as counsel" for Larry by making the statements at issue. See O'Connor, 92 S.W.3d at 448. Thus, we overrule Sue's second issue.
Claims against Larry's Attorneys
Sue contends in her third issue that the court abused its discretion by sustaining the special exceptions filed by Larry's attorneys and dismissing her conspiracy claims against them.
Sue alleges in her sixth amended petition that Larry and his attorneys conspired to deprive her of her right to a hearing before an impartial tribunal, to deprive her of her right to a just and right division of the marital estate, to intentionally inflict severe emotional distress, and to impose duress on her. She makes the following factual allegations to support her conspiracy claims:
Sue's petition actually contains at least eighteen separate factual allegations supporting her conspiracy claims against Larry, his attorneys, the receiver, and the four trial judges who have presided over various stages of this litigation. We recite here only those allegations pertinent to Larry's attorneys.
(1) During the 1993 trial, one of Larry's attorneys "participated in an improper ex parte communication with the trial judge";
(2) During the course of the 1994 appeal, one of Larry's attorneys "made false statements" to Sue's appellate counsel which prompted Sue's counsel to give "serious consideration to withdrawing from the case";
(3) The trial judge improperly "extended the receivership" to include the community assets located inside the Walstons' home and instructed the receiver to place those assets in storage at the request of the receiver and one of Larry's attorneys;
(4) One of Larry's attorneys assisted the receiver in preparing a false affidavit;
(5) One of Larry's attorneys contacted Sue's counsel before the July 1996 trial "and offered to pay her to withdraw from the case";
(6) Larry and one of his attorneys participated in an improper ex parte meeting with the trial judge on a Saturday in August 1996;
(7) One of Larry's attorneys filed a motion for release of funds from the court's registry supported by a false affidavit signed by Larry;
(8) Two of Larry's attorneys participated in an improper ex parte meeting with the elected trial judge, who later recused himself;
(9) One of Larry's attorneys had improper ex parte contact with the assigned trial judge;
(10) Larry's attorneys "knowingly and willfully participated in illegal acts and knowingly and willfully assisted and encouraged [Larry and the receiver] in the commission of illegal acts"; and
(11) Larry's attorneys conspired with Larry, the receiver, and the four district judges to deprive Sue of her rights by committing the acts listed above and by hiring a private investigator who followed Sue, observed her in her home, and sorted through her garbage.
Under Texas law however, an attorney generally has qualified immunity from suit by an opposing party for the attorney's conduct in the course of the litigation. See Alpert v. Crain, Caton James, P.C., 178 S.W.3d 398, 405-06 (Tex.App.-Houston [1st Dist.] 2005, pet. denied).
Texas case law has discouraged lawsuits against an opposing counsel if the lawsuit is based on the fact that counsel represented an opposing party in a judicial proceeding. An attorney has a duty to zealously represent his clients within the bounds of the law. In fulfilling this duty, an attorney has the right to interpose defenses and pursue legal rights that he deems necessary and proper, without being subject to liability or damages. If an attorney could be held liable to an opposing party for statements made or actions taken in the course of representing his client, he would be forced constantly to balance his own potential exposure against his client's best interest. Such a conflict hampers the resolution of disputes through the court system and the attainment of justice. Thus, to promote zealous representation, courts have held that an attorney is "qualifiedly immune" from civil liability, with respect to non-clients, for actions taken in connection with representing a client in litigation.
. . . .
[However, a]s the Texas Supreme Court observed in McCamish, a lawyer's protection from liability arising out of his representation of a client is not without limits. For example, a cause of action could exist against an attorney who knowingly commits a fraudulent act outside the scope of his legal representation of the client. If a lawyer participates in independently fraudulent activities, his action is "foreign to the duties of an attorney." A lawyer thus cannot shield his own willful and premeditated fraudulent actions from liability simply on the ground that he is an agent of his client.
Id. (citing McCamish, Martin, Brown Loeffler v. F.E. Appling Interests, 991 S.W.2d 787, 793-94 (Tex. 1999) (quoting Likover v. Sunflower Terrace II, Ltd., 696 S.W.2d 468, 472 (Tex.App.-Houston [1st Dist.] 1985, no writ) (other citations omitted)).
Sue's allegations are similar to those considered by the Dallas Court of Appeals in Toles v. Toles. 113 S.W.3d 899, 905-07 (Tex.App.-Dallas 2003, no pet.). That court observed that the policies behind the principles enunciated in Alpert and similar cases "are sound and vital to our adversary system of justice." Id. at 910.
"An attorney should not go into court knowing that he may be sued by the other side for something he does in the course of representing his client; such a policy would favor tentative representation, not the zealous representation that our profession rightly regards as an ideal and that the public has a right to expect."
Id. (quoting Bradt v. West, 892 S.W.2d 56, 72 (Tex.App.-Houston [1st Dist.] 1994, writ denied)). Rather, "[a]n attorney's misconduct in litigation gives rise to remedies other than a separate action seeking damages from the attorney, which remedies are properly administered in the case in which the misconduct occurred." Id. at 911.
Sue argues that the alleged actions of Larry's attorneys are actionable because their actions are the type of "independently fraudulent activities" which are "foreign to the duties of an attorney." See McCamish, 991 S.W.2d at 793-94; Alpert, 178 S.W.3d at 406; Toles, 113 S.W.3d at 911; Likover, 696 S.W.2d at 472. We disagree. See Alpert, 178 S.W.3d at 406-08; Toles, 113 S.W.3d at 911-12. Accordingly, we overrule Sue's third issue.
Continuance Motions
Sue contends in her fourth issue that the court abused its discretion by denying her pretrial continuance motion and the oral continuance motion she made on the day of trial.
During a pretrial hearing on October 11, 2004, the court announced its intention to set the case for jury trial on Monday, December 6. Sue expressed concerns about this setting.
[T]hat's a problem for me. I am free Monday and Tuesday, but Wednesday, Thursday and Friday — again, this is the week that the only person who can replace me is on vacation. She is out from December 1st through the 8th. I mean, I will arrange it if I have to; but it is my job.
Nevertheless, the court decided to set the trial for December 6 and signed a pretrial scheduling order at the conclusion of the hearing setting various pretrial deadlines and setting the case for jury trial on December 6.
This pretrial order also addressed several motions which were pending at the time.
Sue filed a verified motion for continuance on December 1. She asked for the continuance because, "[d]espite due diligence," she could not be "ready to present her case on that date" because: (1) at the October 11 pretrial hearing, the court denied her request for release of funds in the court's registry; (2) she had not had sufficient time to conduct necessary legal research in response to the court's November 15 granting of the special exceptions filed by Larry's attorneys and the summary judgment filed by the receiver; (3) she had not had sufficient time to conduct necessary legal research and prepare documents necessary for presentation of her case; and (4) the court had previously granted "numerous continuances" requested by Larry but denied previous continuances requested by herself. Sue further explained in the affidavit supporting her motion that, because of her work schedule, she is generally able to perform legal research only on weekends at the Baylor law library and that she was required to work extra hours during the week before trial.
The court denied Sue's continuance motion the same day it was filed.
The denial of a continuance motion is reviewed under an abuse-of-discretion standard. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004); In re Z.A.T., 193 S.W.3d 197, 208 (Tex.App.-Waco 2006, pet. denied). Generally, "the denial of a motion for continuance based on lack of time to prepare for trial is not an abuse of discretion." Perrotta v. Farmers Ins. Exch., 47 S.W.3d 569, 577 (Tex.App.-Houston [1st Dist.] 2001, no pet.); accord Clemons v. State Farm Fire Cas. Co., 879 S.W.2d 385, 394 (Tex.App.-Houston [14th Dist.] 1994, no writ). Therefore, the court did not abuse its discretion by denying Sue's written continuance motion.
Sue also contends that the court abused its discretion by denying her oral continuance motion on the day of trial. Sue's oral continuance motion did not comply with Rule of Civil Procedure 251. See TEX. R. CIV. P. 251; Z.A.T., 193 S.W.3d at 208. Therefore, the court did not abuse its discretion by denying this motion. See Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); Z.A.T., 193 S.W.3d at 208.
Sue states in her brief that she also made "multiple requests for continuance, postponement or even for early recess so that she might have time to prepare for presentation of evidence," which were all denied during the course for the trial. However, because Sue failed to pay for the reporter's record, we have no record of these "multiple requests."
Accordingly, we overrule Sue's fourth issue.
Central Transportation Systems
Sue contends in her fifth issue that the award of damages to Central Transportation Systems is not supported by the verdict, the pleadings, the law, or the evidence.
To be more precise, Sue argues that the award of damages to Central Transportation is erroneous because: (a) there is no evidence or factually insufficient evidence to support the award; (b) the court erroneously applied the doctrine of quantum meruit and abused its discretion by requiring Sue to pay any debt owed Central Transportation; (c) the judgment is not supported by the verdict and findings; and (d) the court erroneously granted relief not requested.
The receiver retained Central Transporation in 1995 to transport and store the Walstons' household goods and furnishings, and those assets have been in storage ever since. In the second divorce decree (signed in August 1996), the court ordered as part of the division of the marital estate that each party pay "1/2 of any and all debts or charges being unpaid incurred by virtue of the storing of the furniture and personal property." In the third divorce decree (signed in February 2002), the court ordered that Central Transportation's fees be paid from funds in the court's registry.
After this Court reversed the third divorce decree, Central Transportation intervened in the divorce proceedings. Central Transportation alleged in its first amended plea in intervention that it "is entitled to payment of the amounts owing to it as set forth above from the estate of the Petitioner and Respondent and declaratory relief regarding the obligations of the parties and Intervenor in this matter." Central Transportation alleged in the alternative that it was entitled to: (1) judgment against the Walstons, jointly and severally, for its charges and expenses; and/or (2) declaration and foreclosure of a warehousemen's lien. Central Transportation also requested attorney's fees.
The jury found that: (1) Central Transportation had an agreement with the receiver, who was acting on the Walstons' behalf, to transport and store their personal property; (2) the Walstons owe Central Transportation $35,013 for the transport and storage of the property; (3) Central Transportation performed "compensable work" for the Walstons with a reasonable value of $1,604; and (4) Central Transportation was entitled to attorney's fees of $5,000 for trial, $10,000 for an appeal to this Court, and $2,500 for an appeal to the Supreme Court.
Because Central Transportation offered a remittitur, the court awarded damages of $34,446 for transportation and storage fees and awarded trial and appellate attorney's fees in the amounts found by the jury. The court also declared that Central Transportation has "a valid and subsisting possessory lien on the personal property of Petitioner and Respondent." After judgment, Central Transportation was paid these transportation and storage fees and its trial attorney's fees from the registry of the court. The court's decree addressed the future storage of the items held by Central Transportation as follows:
Intervenor is under no further obligation from the Court to store the property, and in the event the parties do not agree on further storage or the claiming or disposition of the goods within sixty days from the date this judgment is signed, Intervenor may dispose of the goods by public or private sale of the goods as provided by law. In the event of any such sale, any sums of money, over the amount due of the storage and attorneys fees and costs collected at the sale, if any, shall be given to Petitioner and Respondent in equal portions.
Sue argues that Central Transportation's pleadings do not support this portion of the court's decree. We disagree.
Central Transportation's first amended plea in intervention requests "declaratory relief regarding the obligations of the parties and Intervenor in this matter." Its prayer for relief specifically asks the court for:
judgment against Petitioner and Respondent, jointly and severally, for any and all unpaid storage charges, interest and expenses presently existing or which may arise in the future due and owing Intervenor for the storage of Petitioner and Respondent's personal property; [and] that it have declaratory relief setting forth the obligations of the parties and Intervenor regarding continued storage of the property; that a lien be declared and/or foreclosed upon an a judgment for the deficiency, if any, be entered against Petitioner and Respondent, jointly and severally.
Therefore, Central Transportation's pleadings support the judgment in this regard.
Sue next contends that the evidence does not support the award of damages to Central Transportation. However, Sue failed to pay the reporter's fee for preparation of a transcription of the trial. See TEX. R. APP. P. 37.3(c)(2). In the absence of this portion of the reporter's record, we must presume that the evidence supports the judgment. See Sam Houston Hotel, L.P. v. Mockingbird Rest., Inc., 191 S.W.3d 720, 721 (Tex.App.-Houston [14th Dist.] 2006, no pet.); In re Guardianship of Berry, 105 S.W.3d 665, 667 (Tex.App.-Beaumont 2003, no pet.); In re L.C.H., 80 S.W.3d 689, 691 (Tex.App.-Fort Worth 2002, no pet.); In re Marriage of Spiegel, 6 S.W.3d 643, 646 (Tex.App. — Amarillo 1999, no pet.).
Sue did pay the court reporter to prepare a limited reporter's record which includes some pretrial matters and a postjudgment hearing.
Sue next contends that Central Transportation is not entitled to judgment as a matter of law because: (1) the receiver was acting as the agent of the trial court and not the Walstons; and (2) Central Transportation alleged that it had a contract and offered that contract in evidence, which precludes a recovery in quantum meruit.
We may address questions of law even if we do not have a trial record. In re L.C.H., 80 S.W.3d 689, 691 (Tex.App.-Fort Worth 2002, no pet.).
Sue relies on this Court's holding in Spigener v. Wallis for the proposition that, as a matter of law, the receiver could not enter a contract which was binding on the Walstons. 80 S.W.3d 174 (Tex.App. — Waco 2002, no pet.). In Spigener, we unequivocally stated, "The receiver is the agent of the trial court, not the owners." Id. at 183 (citing Payne v. Snyder, 661 S.W.2d 134, 143 (Tex.App.-Amarillo 1983, writ ref'd n.r.e.)). However, it would have been more accurate for us to say that " generally [the receiver] is the agent of the appointing court and not the agent of the owner whose property is placed in his charge." Payne, 661 S.W.2d at 143 (emphasis added) (citation omitted).
The issue in Spigener was whether the receiver had "acted as `counsel for plaintiffs'" (and presumably to the defendant's detriment) in selling the real property in dispute. See Spigener, 80 S.W.3d at 183. This Court concluded that the receiver had not so acted. Id. at 183-84. Nevertheless, in taking possession of property which is the subject of litigation, a receiver necessarily takes some actions as a representative of the property owners, who are generally on opposing sides in the litigation. See Alpert v. Gerstner, No. 01-05-418-CV, 2006 WL 2523028, at *12 (Tex.App.-Houston [1st Dist.] Aug. 31, 2006, pet. filed); Payne, 661 S.W.3d at 143; see also Ex parte Britton, 127 Tex. 85, 92 S.W.2d 224, 226 (1936) ("Generally speaking, a receiver is an arm of the court. He represents the court and all the parties interested in the litigation wherein he is appointed.").
If the evidence warrants, a factfinder may be asked to determine whether a receiver has acted as an agent for the parties. See, e.g., Payne, 661 S.W.2d at 143-44. Here, such a question was submitted, and the jury found that Central Transportation agreed with the receiver, who was acting on the Walstons' behalf, to transport and store their personal property. We must presume that the evidence supports this finding. See Sam Houston Hotel, 191 S.W.3d at 721; Berry, 105 S.W.3d at 667; L.C.H., 80 S.W.3d at 691; Spiegel, 6 S.W.3d at 646.
Sue also contends that Central Transportation is not entitled to judgment as a matter of law because it pleaded and proved that it had a contract, which precludes a recovery in quantum meruit. Sue is correct that a litigant generally may not recover in quantum meruit if there is a contract which is enforceable against the party from whom the litigant seeks to recover. See Vortt Exploration Co. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex. 1990); Jones v. Blume, 196 S.W.3d 440, 451 (Tex.App.-Dallas 2006, pet. denied); Double Diamond, Inc. v. Hilco Elec. Co-op., 127 S.W.3d 260, 268 (Tex.App.-Waco 2003, no pet.). Here, however, the jury found that the receiver reached the agreement with Central Transportation on behalf of the Walstons.
"Texas law has long recognized that nonparties may be bound to a contract under various legal principles." In re Weekley Homes, L.P., 180 S.W.3d 127, 131 (Tex. 2005) (orig. proceeding). One of these legal principles arises when a party to the contract is acting on behalf of another. See id. at 131 n. 15 (citing Biggs v. U.S. Fire Ins. Co., 611 S.W.2d 624, 629 (Tex. 1981)); see also Builders Transp., Inc. v. Grice-Smith, 167 S.W.3d 1, 12 (Tex.App.-Waco 2005, pet. denied) (agents actions are binding on principal when agent acts with actual or apparent authority).
Here, the jury found that the receiver was acting on the Walstons' behalf when he reached an agreement with Central Transportation to transport and store their personal property. There is nothing in the judgment to indicate that the court awarded damages to Central Transportation on anything other than a contract theory. Therefore, Sue's arguments with regard to quantum meruit are without merit.
Accordingly, we overrule Sue's fifth issue.
Disbursement of Funds in Registry
Sue contends in her sixth issue that the district clerk's reliance on section 117.054(b) of the Local Government Code to withdraw a percentage of funds from the court's registry violated her right to due process.
Section 117.054 provides:
(a) If a special or separate account earns interest, the clerk, at the time of withdrawal, shall pay in a manner directed by a court with proper jurisdiction the original amount deposited into the registry of the court and any interest credited to the account in the manner calculated in Subsection (b).
(b) The interest earned on a special account or a separate account shall be paid in the following amounts:
(1) 10 percent of the interest shall be paid to the general fund of the county to compensate the county for the accounting and administrative expenses of maintaining the account; and
(2) 90 percent of the interest shall be credited to the special or separate account.
TEX. LOC. GOV'T CODE ANN. § 117.054 (Vernon 1999).
When the judgment was signed, approximately $41,000 in community funds remained in the registry. The court decreed that Central Transportation be paid $39,446 from these funds. The court also ordered that funds from the registry be used to pay an $800 bill for Sue's federal income taxes arising from interest earned on the funds in the registry, to the extent that any funds remained after Central Transportation was paid. The remainder of funds on deposit, if any, after these items were paid was to be divided equally between the Walstons.
The district clerk paid Central Transportation in accordance with the terms of the decree. The clerk then notified the parties that there remained a balance of $2,215 in community funds in the registry. However, after the clerk deducted ten percent of the interest earned in accordance with section 117.054(b) (which amounted to $2,556), there were no community funds remaining with which to pay the IRS. Thus, the clerk advised that the remainder of the ten percent owed ($341) would be taxed as court costs and that no check would issue for payment of Sue's IRS bill.
The court's registry also contains $40,000 in Sue's separate property funds which Larry tendered to purchase her one-half interest in the Cessna. However, those funds have not been released to Sue because she has refused to sign documents: (1) disclaiming any interest in the Cessna; and (2) transferring her ownership interest to "Larry Walston d/b/a Walston Aviation."
Sue contends that the clerk erroneously calculated the percentage by basing it on the amount of interest earned on all of the Walstons' funds in the court's registry between 1996 and 2005 rather than on the $41,000 which was on deposit when the clerk paid Central Transportation.
A review of the balance sheet documenting deposits and withdrawals of the Walstons' community funds in the court's registry reveals that the account earned $25,557 in interest between 1996 and 2004. The balance sheet reflects that the original amount of funds placed in the registry was $211,166 and that Larry and Sue withdrew $195,516 between 1996 and 2004 for various reasons. Thus, only $15,650 of the original funds remained from which the $39,446 to Central Transportation was to be paid, and the clerk had to use about $23,800 of the interest earned to pay this obligation.
The funds earned additional interest in 2005 before the certificates of deposit in which the funds had been invested were cashed out. However, the precise amount of interest earned in 2005 is not clear from the balance sheet.
Under the plain language of section 117.054, the clerk had a statutory duty to retain ten percent of the interest earned on the Walstons' community property funds deposited in the court's registry. See TEX. LOC. GOV'T CODE ANN. § 117.054(b)(1) ("10 percent of the interest shall be paid to the general fund of the county") (emphasis added); see also TEX. GOV'T CODE ANN. § 311.016(2) (Vernon 2005) ("`Shall' imposes a duty"). And because subsection (b)(1) is designed "to compensate the county for the accounting and administrative expenses of maintaining the account," the statute necessarily contemplates that the county be compensated for the entire time period during which the account is maintained. Thus, the clerk properly calculated the percentage to be retained based on the interest earned on all of the Walstons' community funds deposited in the registry rather than the amount attributable to only those funds remaining at the time of judgment.
Nevertheless, Sue contends that this denies her right to due process because: (1) she "finds no provision in the applicable statutes authorizing the district clerk to determine whether Central Transportation, attorneys for Central, McLennan County or Appellant has the superior claim to funds held by her office"; (2) "no constitutional provision or statute confers upon a district clerk the authority to divide community property"; and (3) her property was "taken" by the clerk without an opportunity to be heard.
Regarding Sue's first two contentions, the district clerk has disbursed funds from the registry during the course of litigation in compliance with section 117.121 of the Local Government Code and only when ordered to do so by the trial court. See TEX. LOC. GOV'T CODE ANN. § 117.121 (Vernon Supp. 2006). In the decree, the court specifically ordered the clerk to pay the monies owed to Central Transportation before paying Sue's IRS bill and expressly recognized in the decree that there may not be sufficient funds remaining to pay the IRS bill.
Finally, we conclude that Sue's right to due process has not been denied because of any lack of opportunity to be heard. Sue makes no complaint regarding the $195,516 in disbursements which were made from the registry throughout the course of this litigation before judgment. Those disbursements left only $15,650 of the original balance to pay the monies owed Central Transportation. In the end, the Walstons' liabilities exceeded the amount of community funds on deposit in the court's registry. The court did not abuse its discretion, nor was Sue's right to due process violated, by the order in which the court determined that the Walstons' creditors should be satisfied. See Lifshutz v. Lifshutz, 199 S.W.3d 9, 18 (Tex.App.-San Antonio 2006, pet. denied) (trial court has broad discretion in dividing community estate); Fischer-Stoker v. Stoker, 174 S.W.3d 272, 277 (Tex.App. — Houston [1st Dist.] 2005, pet. denied) (same); Beard v. Beard, 49 S.W.3d 40, 66 (Tex.App.-Waco 2001, pet. denied) (same).
Of those disbursements, Larry received $144,154 and Sue received $51,362.
Accordingly, we overrule Sue's sixth issue.
Division of Community Estate
Sue contends in her seventh issue that the court failed to divide the community estate in a just and right manner. See TEX. FAM. CODE ANN. § 7.001 (Vernon 2006). In the absence of a reporter's record, however, we must presume that the evidence supports the court's decision. See Sam Houston Hotel, 191 S.W.3d at 721; Berry, 105 S.W.3d at 667; L.C.H., 80 S.W.3d at 691; Spiegel, 6 S.W.3d at 646. Therefore, we overrule Sue's seventh issue.
Jury Charge on Conspiracy
Sue contends in her eighth issue that the question in the charge regarding her conspiracy claim is erroneous. Because Sue contends that the conspiracy question was defective as submitted, a contemporaneous objection to submission of that question would suffice to preserve error. See Holubec v. Brandenberger, 111 S.W.3d 32, 39 (Tex. 2003); Religious of the Sacred Heart of Tex. v. City of Houston, 836 S.W.2d 606, 613-14 (Tex. 1992); Builders Transp., 167 S.W.3d at 13. We have no record that Sue objected to the question as submitted. In the absence of a reporter's record, we will presume that she did not. See NCAA v. Yeo, 114 S.W.3d 584, 593-94 (Tex.App.-Austin 2003), rev'd on other grounds, 171 S.W.3d 863 (Tex. 2005).
A party may also preserve a complaint regarding an error in the charge by tendering a written request to the trial court for submission of the desired question in substantially correct wording. TEX. R. CIV. P. 278; Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162, 166 (Tex. 2002); Gerdes v. Kennamer, 155 S.W.3d 523, 534 (Tex.App.-Corpus Christi 2004, pet. denied). Here, however, there is nothing in the record to show that Sue tendered such a request before the charge was submitted to the jury. One way to make a record demonstrating that a proper request has been tendered is to have the trial court endorse on the tendered request that it was "refused." See TEX. R. CIV. P. 276; Dallas Market Ctr. Dev. Co. v. Liedeker, 958 S.W.2d 382, 386 (Tex. 1997) (per curiam). However, this is not the exclusive means for preserving such errors. See Dallas Market Ctr. Dev. Co., 958 S.W.2d at 386.
More than five months after the signing of the judgment, Sue filed an application to make a bill of exceptions to supplement the record with the questions she alleges she "requested the Court to give" to the jury but which the court refused. In a hearing on several post-judgment matters including the application for bill of exceptions, the court denied Sue's application and stated essentially that it would rely on the trial record to demonstrate whether appropriate requests and objections were made. The court later signed an order denying the application, stating in pertinent part, "The Court will rely on the trial record and not unsigned, unfiled suggestions purporting to have been submitted to the Court and presented in this application some seven months later." Cf. id. at 385-86 (error preserved where trial court stated on record in post-judgment proceeding that requested questions had been properly submitted and apologized for not endorsing requests with ruling made).
For the foregoing reasons, we hold that Sue failed to properly preserve this issue for appellate review. Thus, we overrule Sue's eighth issue.
We affirm the judgment.