Opinion
NO. 02-15-00231-CV
04-21-2016
NORMAN CLARENCE TOLPO APPELLANT v. MARY CRAVER DENNY APPELLEE
FROM THE 442ND DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. 14-03723-362 MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
I. Introduction
In four issues, appellant Norman Clarence Tolpo appeals the trial court's judgment awarding a condominium to appellee Mary Craver Denny as her separate property, awarding $4,536.32 to Denny for damages to the condominium, and awarding trial and conditional appellate attorney's fees to Denny. We affirm.
II. Background
The parties married in May 2005, and Denny filed for divorce nine years later. By the time of the April 28, 2015 trial, the parties had entered into an agreement for the division of all of their property except for a condominium located in Austin, Texas (referred to as the Westgate Condominium in the parties' agreement incident to divorce), which Denny claimed as her separate property. Denny's attorney testified about the attorney's fees in the case, and his billing records were admitted into evidence. Some examples of his work in the case were also admitted into evidence: Denny's request for production and inspection, a rule 11 agreement on Tolpo's deposition and Tolpo's subsequent motion for continuance, Denny's motion to compel and for sanctions against Tolpo for failure to respond to discovery, and Denny's letter to Tolpo's lawyer regarding condominium expenses. In response to Tolpo's objection that Denny's attorney did not divide his billing records between what was spent on the condominium and what was spent on the agreement incident to divorce, Denny's attorney further testified that everything after the August 28 billing "would be fair to attribute to the efforts to get the Austin condominium issue resolved," subtracting $6,000 from the total amount of $23,871.31, to leave $17,871.31. Tolpo stated that he had no further questions for Denny's counsel.
Denny acquired the condominium in November 1992 by warranty deed.
Three days before the date Tolpo had selected for the deposition, Tolpo filed a motion for continuance of his deposition and alternatively requested that his deposition be taken telephonically because of his poor health. The deposition never took place.
Denny filed the motion to compel on February 18, 2015, asserting that she had served Tolpo with her request for disclosure and request for production and inspection in December 2014 and that he had made no response to either request, even though they had signed an agreement incident to divorce in January 2015 that resolved all issues except for any related to the condominium. One of the attachments within the exhibit was Denny's February 2, 2015 letter, stating that because the parties had been unable to resolve the condominium issues, Tolpo should answer the December 19, 2014 requests for production "with regard to all items requested which pertain to the Austin Condominium."
In its final decree of divorce, signed on May 26, 2015, the trial court approved the parties' agreement incident to divorce and incorporated it by reference into the decree. The decree reflected that the agreement confirmed each party's separate property and divided any community or mixed character property "except for any claim, liability, debt, obligation, or causes of action of any kind relating to or arising from the ownership and liabilities of the" condominium. The trial court confirmed the condominium as Denny's separate property and awarded to Denny's lawyers $7,500 in attorney's fees incurred in connection with presenting the issues related to the condominium.
Pursuant to the parties' request, the trial court did not file a copy of the agreement with the records of the court.
Tolpo filed a request for findings of fact and conclusions of law on June 8, 2015. Sixteen days later, Denny filed a motion to modify the judgment and a motion for temporary orders pending appeal, asking the trial court to add $12,500 in appellate attorney's fees, and Tolpo filed a motion for new trial. Tolpo then filed an amended answer to Denny's original petition for divorce in which he asserted, for the first time in a pleading, an undivided one-half interest in the condominium as his separate property. He also filed objections to Denny's motions. On July 7, 2015, Tolpo filed a notice of past-due findings of fact and conclusions of law.
The trial court denied Tolpo's motion for new trial on July 10, 2015, after a hearing. On July 17, 2015, the trial court signed its order modifying the final decree of divorce, adding conditional appellate attorney's fees of $12,500 for Denny if Tolpo unsuccessfully appealed to the court of appeals and $10,000 for an unsuccessful appeal to the supreme court and awarding $4,536.32 for condominium repairs to Denny.
The July 10, 2015 hearing covered Tolpo's motion for new trial, Denny's motion to modify, correct, or reform the judgment, and Denny's motion for temporary orders pending appeal. During the hearing, Denny's lawyer testified that he thought reasonable appellate attorney's fees would be $12,500.
The trial court reformed the judgment to require Tolpo to pay $4,536.32 in damages to the condominium that Tolpo testified at trial that he would pay because he had caused them.
III. Discussion
In his first two issues, Tolpo complains that the trial court erred by refusing to award to him a one-half interest in the condominium and by refusing to admit the exhibit he relies upon to support his argument that he has such an ownership interest. In his third issue, he argues that the trial court erred by failing to enter findings of fact and conclusions of law, and in his fourth issue, he contends that the trial court erred by awarding trial and appellate attorney's fees to Denny.
A. Preservation of Error
In his second issue, Tolpo argues that the trial court abused its discretion by refusing to admit the exhibit he relies upon to support his claim to an undivided one-half interest in the property. Denny responds that Tolpo did not make an offer of proof to the trial court or file a bill of exception, thereby failing to preserve anything for our review.
A trial court's rulings in excluding evidence are reviewable for an abuse of discretion. Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 347 (Tex. 2015). An appellate court must uphold the trial court's evidentiary ruling if there is any legitimate basis in the record for the ruling. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). A trial court abuses its discretion if the court acts without reference to any guiding rules or principles, that is, if the act is arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004).
Tolpo also argues in this section of his brief that the trial court abused its discretion under rule of civil procedure 193.6(c) by denying his motion for a continuance "to allow [him] to formerly disclose the deed that was the entire basis of the trial." At the beginning of trial, Tolpo's attorney made an oral motion for continuance. Generally, when the movant fails to provide an affidavit in support of the motion, the appellate court presumes that the trial court did not abuse its discretion in denying the motion for continuance. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); Frequent Flyer Depot, Inc. v. Am. Airlines, Inc., 281 S.W.3d 215, 226 (Tex. App.—Fort Worth 2009, pet. denied), cert. denied, 559 U.S. 1036 (2010). And a litigant who fails to diligently follow the rules of civil procedure for discovery purposes is not entitled to a continuance. State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex. 1988); D.R. Horton-Tex., Ltd. v. Savannah Props. Assocs., L.P., 416 S.W.3d 217, 223 (Tex. App.—Fort Worth 2013, no pet.).
Here, Denny's attorney pointed out to the trial court that during this yearlong, oneissue case, he had sent a request for production in December to which Tolpo failed to respond, followed by a motion to compel in March to which Tolpo also failed to respond, that Tolpo had likewise failed to appear for his scheduled deposition, and that the April 2015 trial date was agreed upon by both parties. Based on the record before us, we cannot say that the trial court abused its discretion by denying the motion for continuance after implicitly finding that there was no good cause for Tolpo's failure to timely make, amend, or supplement his discovery response or that Tolpo's failure to do so would unfairly prejudice Denny. See Tex. R. Civ. P. 193.6(a)(c). Therefore, to the extent Tolpo has raised this argument as part of his second issue, we overrule it.
To preserve error in the exclusion of evidence, the complaining party must both (1) timely object or move to admit the evidence, stating the specific ground of objection if the specific ground is not apparent from the context; and (2) present a formal bill of exception to the trial court unless the substance of the excluded evidence was apparent from the context within which the questions were asked. See Tex. R. App. P. 33.2; Tex. R. Evid. 103(a)(2).
The record reflects that Tolpo's counsel attempted to introduce an alleged deed between Denny and Tolpo, beginning with his opening statement, and that Denny's counsel objected every time the alleged deed was mentioned. Tolpo's counsel did not make an offer of proof in response to any of the trial court's rulings sustaining Denny's counsel's objections to the admission of Tolpo's exhibit.
Finally, just before the conclusion of the trial, the following dialogue occurred:
[Tolpo's attorney]: . . . And I do want -- where is that deed? I would like to leave it and put it with the record, Your Honor, if I may. Yeah, if you'll take it and put it with the record.It is not apparent from the context of this record which deed Tolpo's attorney referenced when he requested that the deed be included in the record. The only deed contained within the reporter's record of exhibits is the 1992 deed to Denny from the condominium's previous owners. With regard to the document that was admitted into evidence, it appears that the trial court admitted the agreement incident to divorce, not the document that Tolpo's attorney had repeatedly attempted to get into evidence and that the trial court had repeatedly rejected. Tolpo subsequently attached a copy of the alleged 2005 deed to his motion for new trial, but this was too late under rule of evidence 103 for an offer of proof and was not newly discovered evidence that could be considered under rule of civil procedure 324(b)(1).See L.H. v. N.H., No. 02-15-00116-CV, 2015 WL 7820489, at *3 (Tex. App.—Fort Worth Dec. 3, 2015, no pet.) (mem. op.) (see also Hoxie Implement Co. v. Baker, 65 S.W.3d 140, 145 (Tex. App.—Amarillo 2001, pet. denied) ("[I]ncluding the objection and grounds in a motion for new trial does not satisfy the contemporaneous objection rule if the complaint could have been urged earlier."). Tolpo did not file a formal bill of exception. Cf. Tex. R. App. P. 33.2(c).
I guess we're admitting -- I know it hasn't been filed under this e-filing -- the Agreement Incident to the Divorce.
THE COURT: It was admitted. It's in evidence.
In his motion for new trial, Tolpo asked the trial court to reconsider its decision to exclude the attached deed from evidence. The trial court denied the motion, and Tolpo does not appeal from the denial of his motion for new trial.
While an appellate court may be able to discern from the record the nature of the evidence and the propriety of the trial court's ruling, without an offer of proof, we can never determine whether the exclusion of the evidence was harmful. Kyle v. Zepeda, No. 01-11-00388-CV, 2013 WL 2246030, at *5 n.3 (Tex. App.—Houston [1st Dist.] May 21, 2013, no pet.) (mem. op.). Because it is at best unclear from the record that Tolpo made an offer of proof of the exhibit or took any other step required to preserve his complaint, we overrule his second issue.
B. Findings of Fact and Conclusions of Law
Tolpo complains in his third issue that the trial court erred by failing to enter findings of fact and conclusions of law.
The purpose for requesting written findings of fact and conclusions of law is to narrow the bases of judgment to only a portion of the multiple claims and defenses in a case, thereby reducing the number of contentions that the appellant must raise on appeal. In re D.H., No. 02-05-00179-CV, 2006 WL 133523, at *1 (Tex. App.—Fort Worth Jan. 19, 2006, no pet.) (mem. op.). When a trial court fails to file findings of fact and conclusions of law despite the timely filing of a request and a timely filed notice of past due findings, the error is harmless when it does not prevent that party from properly presenting its case to the court of appeals or supreme court. Graham Cent. Station, Inc. v. Pena, 442 S.W.3d 261, 263 (Tex. 2014).
Tolpo did not ask this court to abate the appeal so that the trial court could enter findings and conclusions, he does not argue that the absence of findings and conclusions prevented him from properly presenting his case to this court or the supreme court, and there was only one ultimate issue in this case for the trial court to resolve: Who owned the condominium? Therefore, without reaching Denny's contention that Tolpo waived this complaint because his notice of past-due findings was untimely, we conclude that the trial court's error, if any, was harmless, and we overrule Tolpo's third issue. See id.
C. Separate Property
In his first issue, Tolpo complains that the trial court erred by refusing to award to him a one-half separate property interest in the condominium.
In a trial to the court in which no findings of fact or conclusions of law are filed, the trial court's judgment implies all findings of fact necessary to support it. Rosemond v. Al-Lahiq, 331 S.W.3d 764, 766-67 (Tex. 2011); Wood v. Tex. Dep't of Pub. Safety, 331 S.W.3d 78, 79 (Tex. App.—Fort Worth 2010, no pet.). When a reporter's record is filed, however, these implied findings are not conclusive, and an appellant may challenge them by raising both legal and factual sufficiency of the evidence issues. Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003); Liberty Mut. Ins. Co. v. Burk, 295 S.W.3d 771, 777 (Tex. App.—Fort Worth 2009, no pet.). When such issues are raised, the applicable standard of review is the same as that to be applied in the review of jury findings or a trial court's findings of fact. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989); Liberty Mut. Ins. Co., 295 S.W.3d at 777. The judgment must be affirmed if it can be upheld on any legal theory that finds support in the record. Rosemond, 331 S.W.3d at 767; see also Liberty Mut, 295 S.W.3d at 777 (stating that the judgment must be affirmed if it can be upheld on any legal theory that finds support in the evidence).
Property possessed by either spouse during or on dissolution of marriage is presumed to be community property, and the degree of proof necessary to establish that property is separate property is clear and convincing evidence. Tex. Fam. Code Ann. § 3.003 (West 2006). The trial court admitted into evidence the 1992 deed from the condominium's previous owners to Denny, and Denny testified that she never intended to convey an ownership interest in the condominium to Tolpo. While Denny said that the reason she put him "on the deed" was so that he would have a place to live if she died, she also stated that she had never intended to give him any interest in the condominium, that her intent was to keep the entire condominium, that it was her property, and that she should get to retain it. Denny further testified that Tolpo had always told her that he believed that she owned the condominium. Denny said that the first time she realized that he was going to claim that he owned an interest in the condominium was "a good while after he asked [her] for the divorce."
During cross-examination, Denny replied, "I did," in response to the question, "You said you did sign a deed to the condominium to [Tolpo], did you not?" However, Denny's attorney raised an objection to this testimony because Tolpo had not pleaded for separate property and had not complied with the discovery rules or local rules on exhibits. Tolpo's attorney admitted that he never "officially" produced a copy of the alleged deed in response to Denny's request for production of documents. The trial court observed that there were documents "clearly requested that have not been produced" and sustained Denny's objection to any references to the alleged deed but also said that Denny could be questioned about what she had already brought up regarding a deed.
Tolpo testified that Denny had given him a half interest in the condominium. He further testified that they had orally agreed "[i]n some way" that they would each own half of the condominium. A May 22, 2014 letter from Tolpo's attorney to Denny's attorney, which the trial court admitted into evidence, stated that Tolpo
is not in any hurry to proceed with this matter. He prefers not to get a divorce but if a divorce must happen, there is only one significant piece of community property and that is a mortgage on a building on Guadalupe Street in downtown Austin. Mr. Tolpo also has some pictures hanging on the walls in Ms. Denny's condominium in Austin. [Emphasis added.]But a February 2, 2015 letter from Denny's counsel to Tolpo's counsel stated, "In view of Ms. Denny's settlement offer which would have granted a life estate to Mr. Tolpo in the Austin Condominium, I fail to understand why that settlement offer will not resolve the remaining issues unless Mr. Tolpo intends to will his interest to some third party after his death." [Emphasis added.]
Denny proved to the trial court that she had purchased the condominium prior to marriage through the 1992 deed. See Tex. Fam. Code Ann. § 3.001(1) (West 2006) (defining a spouse's separate property in part as "property owned or claimed by the spouse before marriage"). As set out above, Tolpo did not preserve his complaint regarding the exclusion of the alleged deed from Denny to him during marriage, and he failed to otherwise show by clear and convincing evidence that he had acquired a separate interest in the property by gift. Cf. id. § 3.001(2) (West 2006) (defining a spouse's separate property in part as "property acquired by the spouse during marriage by gift, devise, or descent"); Sharma v. Routh, 302 S.W.3d 355, 360 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (op. on reh'g) ("Whether property is separate or community is determined by its character at the inception of the party's title."). Based on the evidence before the trial court, Tolpo failed to establish what his interest, if any, was or how he acquired it.See Castelnuovo v. Faieta, No. 11-12-00085-CV, 2014 WL 4251154, at *4 (Tex. App.—Eastland Aug. 21, 2014, no pet.) (mem. op.) ("In the absence of evidence of either a donative intent to give a portion of the $600,000 to Appellant or his acceptance of the gift, the trial court did not abuse its discretion by characterizing the money as solely Appellee's separate property."). We overrule Tolpo's first issue.
A general denial "'properly raises the issue of ownership of the property.'" Sherwood v. Sherwood, No. 09-13-00453-CV, 2014 WL 4105068, at *3 (Tex. App.—Beaumont Aug. 21, 2014, no pet.) (mem. op.) (quoting Anderson v. Anderson, 282 S.W.3d 150, 155 (Tex. App.—El Paso 2009, no pet.); Chavez v. Chavez, 269 S.W.3d 763, 766 (Tex. App.—Dallas 2008, no pet.)). But in the absence of a pleading that puts the character of the property in issue, the trial court cannot render a judgment characterizing parts of a divorcing couple's property as separate. Id. (citing Tex. R. Civ. P. 301)). Denny pleaded for separate property, and Tolpo filed a general denial. As pointed out by Denny during the hearing on Tolpo's motion for new trial, Tolpo made no attempt to try to prove what kind of alleged deed Denny had given him—gift, purchase, or other. Further, Tolpo did not otherwise establish what sort of alleged interest he might have been given, e.g., a life estate, a fee simple interest of some sort, or some other interest entirely.
D. Attorney's Fees
Tolpo argues in his final issue that the trial court erred by awarding attorney's fees at the trial and appellate levels because the agreement incident to divorce specifically excluded litigation over the condominium, the award was not equitable because Denny had more money than he did, Denny did not segregate her attorney's fees regarding the litigation over the condominium, and no evidence supports the reasonableness of the conditional award of attorney's fees on appeal.
Denny responds that that the parties' agreement as a whole shows that they did not intend to limit any claims related to the condominium, including claims for attorney's fees incurred in litigating claims related to the condominium. She also states that Tolpo judicially admitted that Denny segregated her attorney's fees in his motion for new trial.
1. Agreement Incident to Divorce
Under family code section 7.006, spouses may enter into a written agreement incident to divorce, and if the court approves the agreement, it may, as here, incorporate the agreement by reference into the final decree. See Tex. Fam. Code Ann. § 7.006(a)-(b) (West 2006). Divorce agreements are considered contracts and their legal force and meaning are governed by contract law. Abrams v. Salinas, 467 S.W.3d 606, 610 (Tex. App.—San Antonio 2015, no pet.). In construing a written contract, the court's primary concern is to ascertain the true intentions of the parties as expressed in the instrument. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 662 (Tex. 2005). Contract terms are given their plain, ordinary, and generally accepted meanings unless the contract itself shows them to be used in a technical or different sense. Id. When construing a contractual provision, the provision is usually reviewed in light of the entire contract. BBVA Compass Inv. Sols Inc. v. Brooks, 456 S.W.3d 711, 719 (Tex. App.—Fort Worth 2015, no pet.).
The agreement incident to divorce provided that the parties agreed on the division of their community or mixed character "save and except for the Westgate condominium described elsewhere herein." It then set out which assets, debts, and liabilities (excepting the condominium and any items located therein) would belong to each party and how they would handle their income taxes. Section 3.2 provided for a release of all claims "except from any claims, liabilities, debts, obligations, actions, and causes of action related to the Westgate condominium." Section 3.3 provided for indemnification of each other's debts and liabilities if sued, "except as pertains to the Westgate condominium." Section 3.4 contained each party's warranty that there was no known pending litigation that would affect community property "except as pertains to the Westgate condominium." Section 3.5 provided for the execution of any documents needed to effectuate the agreement's provisions and purposes. Section 3.6 stated that the agreement "contains the entire agreement of the parties, except as pertains to the Westgate condominium." The agreement contained standard clauses on partial invalidity, waiver of breach, amendment and modification, successors and assigns, notice, governing law, and place of performance.
The agreement also provided, in section 3.14, for attorney's fees and expenses for enforcement:
Reasonable attorney's fees and expenses of a party incurred in successfully prosecuting or defending a suit under this agreement against the other party or the other party's estate will be recoverable by the successful party in the action. This provision does not apply to any litigation over the Westgate condominium. [Emphasis added.]It further provided that if either party sought modification by equitable bill of review and failed to set aside the agreement, the initiating party would be liable to the defending party for any costs, attorney's fees, and other fees and expenses incurred in defending the action.
In section 3.17, the agreement provided, "The parties agree and stipulate that either party may assert any claim, liability, debt, obligation, action or causes of action of any kind relating to or arising from the ownership and liabilities of the Westgate condominium[.]" [Emphasis added.] The final clause provided, among other things, that each party stipulated that the agreement was a just and right division of marital debts and assets "except for any claims pertaining to the Westgate condominium." [Emphasis added.]
Tolpo contends that "Section 3.14 clearly implies that the parties did not want attorney fees awarded in litigation involving ownership of the Westgate condominium" and that "[t]his is the logical reason only the Westgate condominium was excluded from the attorney fees provision." He claims that reading sections 3.17 and 3.14 together requires a conclusion that the parties wanted to exclude attorney's fees regarding any suits involving the parties' contested issues surrounding the condominium.
Contrary to Tolpo's argument, as set out above, the agreement excludes anything to do with the condominium (including its contents)—not just attorney's fees. And the plain language of the agreement specifically provides for the parties to be able to assert any of their claims involving the condominium, which could reasonably include claims for attorney's fees if available by statute or rule. Therefore, while the agreement itself provided no basis for the trial court's award of attorney's fees here, it did not otherwise prohibit such an award. We overrule this portion of Tolpo's fourth issue.
2. Tolpo's Other Complaints
In her first amended original petition for divorce, Denny added a claim for breach of oral contract, and she requested attorney's fees under the family code as part of the equitable division of the parties' estate and also under civil practice and remedies code chapter 38 under her breach-of-oral-contract theory. Specifically, Denny asserted that she and Tolpo had entered into a valid and enforceable oral contract that provided that Tolpo would confirm that the condominium was her separate property, that both she and her attorney had presented this claim to Tolpo and his attorney, and that Tolpo had not complied with the terms of the oral contract within 30 days after the claim was presented.
Under civil practice and remedies code section 38.001(8), a person who prevails on her underlying claim and recovers monetary or equitable relief may recover reasonable attorney's fees if the claim is for an oral or written contract, but to do so, the claimant must be represented by an attorney and must present the claim to the opposing party or his duly authorized agent, and payment must not have been tendered before the expiration of the 30th day after the claim is presented. See Tex. Civ. Prac. & Rem. Code Ann. §§ 38.001(8), 38.002 (West 2015); Ventling v. Johnson, 466 S.W.3d 143, 154 (Tex. 2015). Under chapter 38, there is a rebuttable presumption that the usual and customary attorney's fees are reasonable, and in a bench trial, the court may take judicial notice of the usual and customary attorney's fees and contents of the case file without receiving further evidence. Tex. Civ. Prac. & Rem. Code Ann. §§ 38.003-.004 (West 2015). "Appellate courts may presume that the trial court did take such judicial notice," and such judicial notice of the usual and customary fees constitutes some evidence on which the trial court may base an award. Nguyen v. Bui, No. 01-14-00239-CV, 2015 WL 1825658, at *3 (Tex. App.—Houston [1st Dist.] Apr. 21, 2015, no pet.) (mem. op.) (holding that the evidence supporting attorney's fees was legally sufficient after observing that the record showed that the trial court took judicial notice of its case file because it did not award Bui the entire amount of attorney's fees that she requested but instead reduced the amount awarded).
The trial court awarded "a portion of the attorney's fees incurred by [Denny] in connection with presenting the issues relating to the Westgate Condominium" in the amount of $7,500, but it did not state the basis for the award other than to reference it "[a]s part of the claims and causes of action relating to the ownership of the Westgate Condominium described elsewhere herein." Tolpo does not challenge the chapter 38 basis for attorney's fees at trial or on appeal. Instead, he attacks the award as inequitable under family code section 6.709 because Denny has more money than he does. But under section 38.001, the trial court has no discretion to deny attorney's fees when presented with evidence of them. Ventling, 466 S.W.3d at 154.
Further, Denny pleaded for attorney's fees, expenses, and costs "through trial and appeal" in her first amended original petition. Post trial, Denny asked for the trial court to add $12,500 in appellate attorney's fees. At the hearing, her counsel, who had previously testified as to Denny's attorney's fees during trial, testified that he thought $12,500 was a fair and reasonable appellate fee, if "probably low" because Denny had already incurred around $6,000 in post-trial fees ($3,900, followed by "a couple of thousand dollars" accrued over the two days before the hearing), and with whatever Tolpo's subsequent actions on appeal would be, he anticipated Denny's fees to "accumulate fairly rapidly." He suggested $9,000 to be paid on or before August 1, with a balance of $3,500 to be paid around 45 days later—i.e., unconditional attorney's fees.
During trial, Denny's counsel testified that he had been licensed to practice law in Texas since 1969 and had become board-certified in family law by the Texas Board of Legal Specialization (TBLS) in 1975, with over 95% of his practice since 1975 in family law. He had also served on the TBLS exam commission, grading family law specialization exams for seven years in the 1990s. By general category, he itemized the legal services he rendered to Denny during his representation of her, affirmed that his hourly rate of $450 per hour was usual and customary in Denton County, and reasonable and necessary for the services rendered. He referenced the total amounts of time as shown in the billing statement, Plaintiff's Exhibit 7, which contained everything but the full billing for April because that month had not yet ended. Tolpo objected to the admission of Plaintiff's Exhibit 7 on the basis that the billing had not been divided between time spent on the condominium issue and time spent on the agreement incident to divorce. The trial court overruled this objection and admitted the billing records. The billing records show that the case began on May 12, 2014 and they describe every action taken in the case, along with how long it took (actual and billed), and who did it (by initial)—Denny's lead counsel, another board-certified family lawyer at his firm, or one of two paralegals, whose qualifications and billing rates were also described by Denny's counsel.
At the conclusion of the hearing, the trial court stated that it would take the issue of appellate attorney's fees under advisement. After the hearing, the trial court modified the judgment to accommodate conditional appellate attorney's fees in the amount of $12,500 in the court of appeals, due within 30 days following a judgment affirming the trial court's judgment, and $10,000 in the supreme court, due 30 days following a final judgment denying a petition for review filed by Tolpo.
If trial attorney's fees are mandatory under section 38.001, then appellate attorney's fees are also mandatory when proof of reasonable fees is presented, i.e., when there is some evidence to support the award. Ventling, 466 S.W.3d at 154. The trial court has discretion as to the amount of reasonable and necessary appellate attorney's fees. Id. at 155. The trial court heard testimony that Denny had already accrued almost half of the total amount of appellate attorney's fees that she requested by the time of the hearing. Based on this testimony and Denny's counsel's previous testimony about his and his firm's qualifications and hourly rates, the trial court did not abuse its discretion by modifying the judgment to accommodate conditional appellate attorney's fees.
Finally, as pointed out by Denny, Tolpo acknowledged on page 8 of his motion for new trial that "[e]ven the attorney['s] fees to Petitioner's attorney related to the title and ownership of the condominium and not the settlement of the vast majority of the parties' assets," which moots his failure-to-segregate complaint. We overrule the remainder of Tolpo's final issue.
Even if this admission did not effectively moot his segregation complaint, Tolpo's segregation complaint was rendered harmless by the subsequent admission of additional evidence, from which the trial court could have reasonably found sufficient information to determine the amount of trial attorney's fees to award to Denny. Tolpo objected to Denny's counsel's billing records—offered to show the services provided and hours worked—on the basis that they did not show time divided between what was spent on the condominium versus the agreement incident to divorce. The trial court overruled this objection and admitted the billing records, and then Denny's counsel moved to admit several exhibits of the work required in the case, to which Tolpo had no objections. Denny's counsel then testified that everything after September 1 (after the August 28th billing) "would be fair to attribute to the efforts to get the Austin condominium issue resolved," which would take $6,000 off of the $23,871.31 total he had testified to earlier. Tolpo did not ask any questions or raise any additional objections. During closing argument, Tolpo argued that Denny's counsel's fees were excessive. Denny's counsel responded that when the case started, he thought it was going to be a $3,500 divorce and that—until the end of August—he thought it should have been able to be handled for $6,000, but "it didn't turn out that way . . . [a]nd so from that point on, that's where I think the attorney's fees are necessary and justified, and the Court ought to award all or some significant part of them to Ms. Denny."
In an unnumbered issue presented in his fact statement and statement of the case and without any argument or citation to authorities, cf. Tex. R. App. P. 38.1(d), (f), (g), (i), Tolpo also complains that the trial court should not have allowed Denny to call a witness who did not testify at trial to testify during the hearing on his motion for new trial and her motions to modify and for temporary orders because "[i]t was patently unfair to award an additional $4,536.33 in damages to [Denny] because an almost-80-year-old man accidently fell into a wall." But then Tolpo also admits that he testified at trial that he would be willing to pay this damage, rendering the trial court's error, if any, harmless. Therefore, to the extent that Tolpo has presented an issue for our review, we overrule it. --------
IV. Conclusion
Having overruled all of Tolpo's issues, we affirm the trial court's judgment.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
JUSTICE PANEL: LIVINGSTON, C.J.; GABRIEL and SUDDERTH, JJ. DELIVERED: April 21, 2016