Opinion
No. 05-16-01116-CV
06-06-2018
DEBORAH UGWA, Appellant v. GODSWILL N. UGWA, Appellee
On Appeal from the 255th Judicial District Court Dallas County, Texas
Trial Court Cause No. DF-10-04258
MEMORANDUM OPINION
Before Justices Lang-Miers, Fillmore, and Stoddart
Opinion by Justice Lang-Miers
Deborah Ugwa appeals the trial court's order entered after a non-jury trial on claims and counterclaims relating to an earlier decree awarding the division of Deborah's and Godswill N. Ugwa's marital property as part of their divorce. Deborah contends that the trial court erred by awarding Godswill $80,000 plus prejudgment interest and attorney's fees, that Godswill did not present legally sufficient evidence to support his counterclaims, that the trial court did not have jurisdiction to enter the order, and that Deborah is entitled to a judgment for enforcement of the divorce decree because of Godswill's constructive fraud. We affirm. We also deny Godswill's motion for damages under rule of appellate procedure 45.
Deborah and Godswill N. Ugwa Jr. filed an appellate brief. For the reasons stated below, this court does not have jurisdiction over Godswill N. Ugwa Jr. in this appeal and only Deborah's appeal is before us. For clarity, we refer to the parties by their first names. We also refer to Godswill N. Ugwa Jr. as "Godswill Jr." and Godswill N. Ugwa as "Godswill."
Deborah also requests that this Court set aside an order appointing a receiver on the ground that there is no evidence that "the business has been depleted" under Deborah's management. However, Deborah's brief does not contain argument for this contention or any citation to authorities or the record supporting this contention. As a result, we conclude that Deborah's contention regarding the appointment of a receiver is not sufficiently presented for our review. TEX. R. APP. P. 38.1(i).
BACKGROUND
This appeal is the culmination of a long-running dispute between the former spouses over a business that they owned together, Destiny's Home Health Care, and that was divided in the divorce decree in October 2012. The divorce decree placed a minimum value on the parties' respective interests in the business and gave Deborah the option of buying Godswill's interest for a specific amount. It also required the parties to sell the business and divide the proceeds if Deborah did not chose to buy Godswill's interest on the terms provided in the decree.
The decree stated:
Provisions for Purchase of Destiny's Home Health Care
It is ORDERED AND DECREED that the wife Debra [sic] Ugwa shall have the first right to purchase the 40% interest which Godswill Ugwa has been awarded by the Court in the Business known as "Destiny's Home Health Care" , for an amount to be not less than $80,000.00. It is Ordered that Debra Ugwa shall have until Friday October 19, 2012, in which to exercise her option to purchase the interest of Godswill Ugwa in "Destiny's Home Health Care" , by paying him no less than $40,000.00 down in total, including her share of the proceeds from the sale of the home in question. It is Ordered that if Debra Ugwa shall fail to exercise her first option to purchase the interest of Godswill Ugwa in "Destiny's Home Health Care" , as set out herein, then the business shall be listed for sale, with a broker having experience in the sale of home healthcare businesses. It shall then be sold at the earliest date possible for the highest offer made, and the net proceeds from the sale shall be divided between the parties in the manner as the Court has awarded the parties an interest in said business.
It is further Ordered that Debra Ugwa shall pay this initial down payment on the purchase of the business from the net proceeds of the sale of the real property, by paying the money through her attorney unto Godswill Ugwa's attorney as set out herein.
It is [f]urther Ordered that the remaining balance due, after the initial down payment of $40,000.00 for the purchase of "Destiny's Home Health Care" , shall be paid by Debra Ugwa unto Godswill Ugwa in monthly installments of Two Thousand Dollars ($2,000.00) each, plus simple interest of 6% per annum, with the first payment being due and payable by Debra Ugwa on or before the 15th day of November, 2012, and a like payment being due and payable every 15th day of each month thereafter, until the entire balance of $40,000.00, plus interest, has been paid in full.
The Court finds and Orders, that "Destiny's Home Health Care" has been appraised and valued at the sum of Two Hundred Thousand Dollars ($200,000.00). The Court further finds that for the purpose of Debra Ugwa purchasing Godswill Ugwa's interest in the business, Debra Ugwa was awarded a 60% share of the business value and Godswill Ugwa was awarded a 40% share of this value. It is therefore Ordered that Godswill Ugwa's share of the business is the sum of [] Eighty Thousand Dollars ($80,000.00).
Owelty Judgment in Favor of Godswill Ugwa
The Court finds that it is necessary to grant and enter an Owelty Lien, against Debra Ugwa, and in favor of Godswill Ugwa in order to secure the payment of the balance of $40,000.00 (Forty thousand dollars) which she shall owe for the purchase of the parties'[] home healthcare business known as "Destiny's Home Health Care". The Court therefore grants and enters an Owelty Judgment for said amount ($40,000.00) against Debra Ugwa.
It is therefore Ordered and Decreed that an encumbrance for owelty of partition or sale is imposed against the entirety of the business known as "Destiny's Home Health Care" until such time as Debra Ugwa has paid the entire sum of $40,000.00, plus interest as set out in this decree.
Attorney's Fees
To effect an equitable division of the estate of the parties and as a part of the division, and for services rendered in connection with conservatorship and support of the child, each party shall be responsible for his or her own attorney's fees, expenses, and costs incurred as a result of legal representation in this case.
After the decree was entered, Deborah transferred Destiny's Medicare provider number to herself and her son, operated the business, and did not pay Godswill for his interest in Destiny's or agree to offer it for sale as provided in the decree. She filed a petition for enforcement and claimed that the business was not worth the value placed on it by the court in the decree because Godswill had diverted clients, employees, and equipment of the business. Godswill responded and denied that he had done anything wrong and claimed he wanted Deborah to pay him or sell the business. Godswill also asked the court to appoint a receiver, alleging that she had not paid him and the parties could "not agree on the terms of sale for Destiny's[.]" The court denied that request for a receiver. Godswill then filed his first amended "Response" to Deborah's petition for enforcement and asserted counterclaims for breach of duty of loyalty upon dissolution of partnership, accounting, breach of fiduciary duty, breach of contract, unjust enrichment, and declaratory judgment and alternative counterclaims for redemption, enforcement of owelty lien, and enforcement of division of property.
Ultimately, the court conducted a nonjury trial. In an order signed upon conclusion of the trial, the court held that Deborah had "continued to use the property of the business for her personal gain" and had not paid Godswill for his interest, she had breached her duty of loyalty, her fiduciary duty, and her duty to redeem to Godswill, violated the divorce decree, wrongfully secured a benefit, and breached the partnership agreement. The court ordered that Godswill was entitled to judgment against Deborah for $80,000, plus $11,500 as attorney's fees, prejudgment interest, postjudgment interest, and costs. The court also ordered that, if Deborah did not pay the judgment awarded by September 15, 2016, Destiny's "shall be listed for sale" and "sold at the earliest date possible for the highest offer made[.]" And the court ordered that, if sold, the net proceeds were to be paid to Godswill to satisfy the court's judgment, with any remainder distributed to Deborah. The court later also appointed a receiver to dispose of the business. Deborah appealed the trial court's order.
STANDING OF GODSWILL JR.
Deborah and Godswill N. Ugwa Jr.—Deborah and Godswill's son—filed an appellate brief. We first address Godswill's argument that Godswill Jr. does not have standing to appeal the trial court's order. "Standing is a component of subject-matter jurisdiction" and "appellate standing is typically afforded 'only to parties of record.'" State v. Naylor, 466 S.W.3d 783, 787 (Tex. 2015) (quoting Gunn v. Cavanaugh, 391 S.W.2d 723, 724-25 (Tex. 1965)); see Gore v. Peck, 191 S.W.3d 927, 928 (Tex. App.—Dallas 2006, no pet.) ("Once a final judgment has been entered, only parties of record may exercise the right of appeal."). "Consequently, an appeal filed by an improper party must be dismissed." Naylor, 466 S.W.3d at 787. We review questions of standing de novo. Id.
The record indicates that Godswill Jr. was not a party of record before the trial court. Deborah and Godswill Jr. argue, however, that Godswill Jr. has standing "as a 5% shareholder of the business affected by the order to sell in the August 30, 2016 Judgment, who stands to lose the value of all of his shares, and who filed a timely Notice of Appeal."
Although Deborah and Godswill Jr. argue that Godswill Jr. "filed a timely notice of appeal" and that this filing grants this Court jurisdiction to address his issues on appeal, they do not cite where in the record the notice of appeal that he contends he filed challenging the order of the trial court is located. And the only notice of appeal in the record was filed solely by Deborah. Without regard to his claimed standing, and because Godswill Jr. did not file a notice of appeal, we conclude that this Court lacks jurisdiction over his appeal. See TEX. R. APP. P. 25.1(c) ("A party who seeks to alter the trial court's judgment or other appealable order must file a notice of appeal."); Sluder v. Ogden, No. 03-10-00280-CV, 2011 WL 116058, at *2 (Tex. App.—Austin Jan. 13, 2011, pet. denied) (mem. op.) (stating that, when party does not file a notice of appeal, the court lacks jurisdiction over his appeal). As a result, only Deborah's appeal is before us.
The notice of appeal states, "This Notice of Appeal is filed by Deborah Ugwa, Appellant, through her attorney, Ugalahi Offoboche, Esq., the petitioner and judgment debtor in the above styled and numbered cause, who seeks to alter the trial court's Judgment signed on August 30th, 2016."
GODSWILL'S COUNTERCLAIMS
In her second issue, Deborah argues that the evidence supporting Godswill's counterclaims was not legally sufficient, that Godswill did not satisfy his burden of proof on any of his counterclaims or the amount of damages arising from any of his counterclaims, and that he is "not entitled to the award of $80,000 plus prejudgment interest[.]" Godswill argues that "ample" and legally sufficient evidence supports each of his counterclaims and the judgment.
First, we note that the trial judge did not enter findings of fact and conclusions of law. As a result, we imply that the trial court made all necessary findings to support its judgment, and we may uphold the judgment on any legal theory supported by the pleadings and evidence. See Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992) (in a nonjury trial where no findings of fact or conclusions of law were filed or requested, it is implied that the trial court made all necessary findings to support the judgment); Weisfield v. Tex. Land Fin. Co., 162 S.W.3d 379, 381 (Tex. App.—Dallas 2005, no pet.) (where trial court did not file findings of fact and conclusions of law, we imply all the necessary findings to support the trial court's judgment and may uphold the judgment on any legal theory supported by the pleadings and evidence).
In response to Godswill's argument that the trial court did not make separate findings of fact and conclusions of law, Deborah points to language in the August 30, 2016 order stating that the court "finds" that Deborah had not paid Godswill "any sum of money" for the business. She then argues that "[i]t is not a reach" to state that, "having found that Deborah Ugwa did not pay for Godswill Ugwa's share, the court made the finding" that Deborah did not exercise her option to purchase. But Deborah does not cite any legal authority for her contention.
Second, a party who challenges the legal sufficiency of the evidence to support an adverse finding on which she did not have the burden of proof at trial must demonstrate that there is no evidence to support the adverse finding. Fulgham v. Fischer, 349 S.W.3d 153, 157 (Tex. App.—Dallas 2011, no pet.). When reviewing a "no evidence" point, we determine "whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We credit favorable evidence if reasonable jurors could and disregard contrary evidence unless reasonable jurors could not. Id. at 827. We will uphold the finding if more than a scintilla of competent evidence supports it. Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex. 2005) (per curiam); see Citibank (S.D.), N.A. v. Tran, No. 05-11-01423-CV, 2013 WL 3205878, at *2 (Tex. App.—Dallas June 21, 2013, pet. denied) (mem. op.). We may affirm the judgment if we conclude that there is legally sufficient evidence to support any of the claims the court found in favor of Godswill. See Weisfield, 162 S.W.3d at 381.
Godswill alleged several counterclaims against Deborah. The court found against her on many of those claims and generally awarded damages to Godswill. As a result, we only need to determine whether one of the claims that was the basis of the court's award supports the order. See Weisfield, 162 S.W.3d at 381. One of Godswill's claims was for breach of contract. The elements of a breach of contract claim are (1) the existence of a valid contract between the plaintiff and the defendant, (2) performance or tendered performance by the plaintiff, (3) breach of the contract by the defendant, and (4) damages sustained by the plaintiff as a result of the breach. Sharifi v. Steen Auto., LLC, 370 S.W.3d 128, 140 (Tex. App.—Dallas 2012, no pet.). Deborah contests two of these elements on appeal. She first states "Godswill Ugwa has failed to prove was [sic] performance he tendered after the divorce decree was signed[.]" However, she states no other argument and includes no citations to authority or to the record to establish her position and she has presented nothing for us to review by this statement. TEX. R. APP. P. 38.1(i) (requiring the brief to contain a clear and concise argument for the contentions made with appropriate citations to authorities and to the record).
Deborah also argues that Godswill has not "established what damages he suffered." At trial, however, the evidence showed that the decree valued Destiny's at $200,000 and awarded forty percent to Godswill, which Deborah could purchase by October 19, 2012 for a total of $80,000.00. The court found that she had not paid Godswill any amount for his forty percent interest, continued to use the property of the business for her personal gain, had not accounted to him for the profit, and, among other things, breached the partnership agreement. We conclude that there was sufficient evidence to support the court's award of $80,000 to Godswill and that the trial court did not err in finding that Godswill was entitled to a judgment against Deborah in the amount of $80,000 plus prejudgment interest and costs. See Fulgham, 349 S.W.3d at 157 (stating a legal sufficiency challenge fails if more than a scintilla of evidence supports the finding).
Additionally, Deborah argues that it "would run contrary to public policy" for "the court to enforce an option when the holder did not comply with the terms of offer of the option." But she cites no authority to support her argument regarding public policy. Rather, her position is a restatement of her argument (albeit as a public policy argument) that the court erred by concluding that Deborah—not Godswill—did not comply with the terms of the divorce decree.
We conclude that there was legally sufficient evidence to support the trial court's order that Godswill was entitled to judgment against Deborah for $80,000 plus prejudgment interest. We overrule Deborah's second issue.
CONSTRUCTIVE FRAUD CLAIM
In her third issue, Deborah argues that " [i]t was harmful error for the District Court to Dismiss Deborah Ugwa's Petition for Enforcement on Godswill Ugwa's Motion for Directed Verdict " because she " alleged facts to show constructive fraud in her pleadings without using the word 'fraud' in the petition ." She contends that she "raised the presumption of constructive fraud but did not make a Fraud claim[.]" She argues that the "court erred in arriving at the conclusion that [she] was not entitled to enforce her right to 60% unless she filed a fraud claim or raised affirmative defenses to Godswill Ugwa's counterclaims when she was entitled to seek clarification of the divorce decree through a suit for enforcement." However, that is not what the record reflects. Instead, the reference she makes to the court stating that she had not raised the affirmative defense of fraud to Godswill's pleadings was when the court sustained an objection to the introduction of an exhibit during the testimony of a witness.
Most importantly, however, the record reflects that, during trial, Godswill moved for "directed verdict" on Deborah's "petition for enforcement on the ground that she has failed to provide any evidence of a violation of the decree of divorce, and on the ground that she has not presented any evidence of damages." Consequently, the trial court did not grant the motion for "directed verdict" because she had not sufficiently pleaded fraud. Instead, as noted, the court granted it based on Godswill's argument that there was a lack of evidence of Godswill's violation of the decree or of her damages. She has not challenged the court's ruling on either basis.
Motion for judgment is what it is referred to in a nonjury trial.
We overrule appellant's third issue.
COURT'S POWER TO ENTER ORDER
In her first issue, Deborah argues that the August 30, 2016 order modified or reformed the property division in the final decree of divorce and, as a result, the trial court acted beyond its plenary power under section 9.007 of the family code and rule 306a of the rules of civil procedure. See TEX. FAM. CODE ANN. § 9.007 (West Supp. 2017) ("An order under this section that amends, modifies, alters, or changes the actual, substantive division of property made or approved in a final decree of divorce or annulment is beyond the power of the divorce court and is unenforceable."); TEX. R. CIV. P. 306a (stating that the period prescribed for the trial court's plenary power to vacate, modify, correct, or reform a judgment begins on the date the judgment is signed). She contends that the court modified the divorce decree because the decree provides that, if Deborah does not exercise her right of first purchase, Deborah and Godswill would receive sixty percent and forty percent respectively of the net proceeds of the sale of the business for the highest offer. She argues that the trial court's order "effectively stripped" her of the sixty percent share that the divorce decree awarded to her because it requires the business to be sold if she does not buy Godswill's interest and that Godswill's judgment has to be satisfied before she is paid anything. She contends that, because the trial court erred and acted outside of its plenary power, the order is either void or voidable. We disagree.
Deborah argues that the trial court erred by "impos[ing] a burden on Deborah Ugwa to list the property for sale when the divorce decree does not identify the party with the burden to arrange for the sale if Deborah Ugwa chooses not to exercise her option to purchase Godswill Ugwa's share of the business." But the trial court's order does not require Deborah to list the business for sale. Instead, it states that, if Deborah does not pay the judgment by December 15, 2016, "the business, Destiny's Home Health Care, that Deborah Ugwa is currently operating shall be listed for sale, with a broker having experience in the sale of home healthcare businesses, and sold at the earliest date possible for the highest offer made[.]"
The court granted a motion for judgment and dismissed Deborah's claims for enforcement. The court did not amend, modify, alter, or change the actual, substantive division of property in the decree. Instead, the court granted Godswill's recovery based on Godswill's counterclaims, including breach of the partnership agreement discussed earlier.
The record reflects that Godswill's attorney referred to this motion as a "directed verdict" and the trial court granted the motion.
We overrule Deborah's first issue.
GODSWILL'S ATTORNEY'S FEES
Deborah also argues that Godswill was not entitled to recover attorney's fees because Godswill "failed to meet his burden of proof on any of the counterclaims[.]" As discussed above, Godswill satisfied his burden of proof on his counterclaim for breach of the partnership agreement. "Texas law [does] not allow[] for recovery of attorney's fees unless authorized by statute or contract." Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310 (Tex. 2006). Godswill contends that he was entitled to attorney's fees under section 9.014 of the family code, on his claim for redemption under section 152.609(c)(2) of the business organizations code, and on his claim of breach of contract under section 38.001 of the civil practice and remedies code. See TEX. FAM. CODE ANN. § 9.014 (West Supp. 2017); TEX. BUS. ORGS. CODE ANN. § 152.609(c)(2) (West 2012); TEX. CIV. PRAC. & REM. CODE ANN. § 38.001 (West 2015). Without addressing Godswill's arguments concerning the other two statutes, we conclude that Godswill was entitled to recover attorney's fees under section 38.001 of the civil practice and remedies code because he has recovered damages for a breach of contract claim. See Green Int'l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997) (stating that party must prevail on a cause of action for which attorney's fees are recoverable and recover damages to recover attorney's fees under section 38.001).
Deborah also argues that the trial court erred in awarding attorney's fees "by failing to make a determination of reasonableness and necessity in the award." She generally argues that there was not sufficient evidence "to establish[] the reasonableness of the attorney's fees." When attorney's fees are authorized, the reasonableness of attorney's fees is a fact question. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). As noted above, because the trial court did not file findings of fact and conclusions of law, we imply that the trial court made all necessary findings to support its judgment and we may uphold the judgment on any legal theory supported by the pleadings and evidence. See Holt Atherton Indus., Inc., 835 S.W.2d at 83-84; Weisfield, 162 S.W.3d at 381.
The issue of reasonableness and necessity of attorney's fees requires expert testimony. Woodhaven Partners, Ltd. v. Shamoun & Norman, L.L.P., 422 S.W.3d 821, 830 (Tex. App.—Dallas 2014, no pet.). Testimony from a party's attorney about a party's attorney's fees is taken as true as a matter of law if the testimony "is not contradicted by any other witness and is clear, positive, direct, and free from contradiction." In re A.B.P., 291 S.W.3d 91, 98 (Tex. App.—Dallas 2009, no pet.). This is especially true where the opposing party had the opportunity and means to disprove the testimony but failed to do so. Id.
"A 'reasonable' attorney's fee 'is one that is not excessive or extreme, but rather moderate or fair.'" Sullivan v. Abraham, 488 S.W.3d 294, 299 (Tex. 2016) (quoting Garcia v. Gomez, 319 S.W.3d 638, 642 (Tex. 2010)). A trial court should consider several factors in determining the amount of reasonable attorney's fees to award, including the time, labor, and skill required to properly perform the legal service, the novelty and difficulty of the questions involved, the customary fees charged in the local legal community for similar legal services, the amount involved and the results obtained, the nature and length of the professional relationship with the client, and the experience, reputation, and ability of the lawyer performing the services. Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997). But the trial court is not required to receive evidence on all of these factors. In re A.B.P., 291 S.W.3d at 98. The court can also look at the entire record, the evidence presented on reasonableness, the common knowledge of the participants as lawyers and judges, the amount in controversy, and the relative success of the parties. McCafferty v. McCafferty, No. 05-16-00587-CV, 2017 WL 3124470, at *3 (Tex. App.—Dallas July 24, 2017, no pet.) (mem. op.); In re A.B.P., 291 S.W.3d at 98.
The record reflects that, at the time of trial, Godswill's attorney Jacob Higgins had been working as his counsel for five months. Higgins testified:
I'm looking at Godswill's Exhibit 29. It includes a one-page summary of my attorney's fees in this case. I have been required to spend significant hours in drafting, pleading, researching, and prosecuting Godswill's counter claim [sic] in this action. The hours that I have billed through today are 98.1 [sic] hours. I bill $225 an hour.
Now, I just said I billed 98 — 91.8 hours. In this case, some of the partners have chipped in, the partners at my firm. They may have billed up to ten, maybe eight of the hours that are included in this summary of attorney's fees. They are also billing $225 an hour in this case.
Two hundred twenty-five dollars is reasonable in the community. It is within the standards, and it is reasonable compared to the amount other attorneys in the area charge.
The 98.1 [sic] hours comes to a total of $20,655. All of the time I spent on Mr. Ugwa's case was necessary to prosecute this case. I'll also note that I have spent over ninety hours in this case that I did not bill Mr. Ugwa for, which comes to a total of $20,000. So I'm not asking for anything relating to that 92 hours, I just emphasize it so that the Court understands that this is not a case that I'm sitting back and billing hours nonstop.
. . . I anticipate that if the Court renders an order that is favorable to Godswill in this case, that I will spend approximately 10 more hours at $225 an hour, which comes to $2250. Therefore, the total amount in attorney's fees that Mr. Ugwa is requesting today on his petition for enforcement of the decree, and his petition for breach of the partnership agreement, breach of contract under 38.001 of the Civil Practice and Remedies Code is $23,148.68.
. . . I also have included in Godswill's Exhibit No. 29, which I'm not going to introduce unless the Court requests or Ms. Fisher requests, but she does have them anyway.
My invoices do document all the time what I did for each entry on Mr. Ugwa's case. The only thing that's missing from these invoices is time that I spent on the case in August because we completed our invoices after a month is complete. Any amount of time I have spent in August on this case is quite significant. [sic]
So I ask to admit Godswill's Exhibit 29.
Deborah's counsel responded, "No objection as a summary" and the court admitted Godswill's Exhibit 29. The record does not reflect that Deborah submitted any objection concerning attorney's fees or contradicted Higgins's testimony regarding attorney's fees.
On appeal, Deborah argues that Higgins did not present "affidavits showing the itemized time spent in drafting pleadings or any of the other generally asserted work that he carried out" and did not present "the alleged invoices but submits a summary which only states the hours he claims were reasonable and necessary as well as the hourly rate." She argues that this "hardly meets the standard for establishing the reasonableness of the attorney's fees[.]" She also contends that Godswill "never accounts for" "an anticipated 10 hours" other than stating that the hours would be "anticipated additional time." She argues that the "court did not consider any of the A[r]thur Anders[e]n Factors in determining whether or not Godswill Ugwa's attorney's fees were reasonable and necessary."
However, because no other witness contradicted Higgins's testimony and his testimony was clear, positive, direct, and free from contradiction and because Deborah had the opportunity and means to disprove his testimony but failed to do so, we consider Higgins's testimony about his attorney's fees as true as a matter of law. See In re A.B.P., 291 S.W.3d at 98. In addition, "[u]nder the traditional, non-lodestar method of proving up the reasonableness of attorney's fees, 'an attorney's testimony about his experience, the total amount of fees, and the reasonableness of the fees charged is sufficient to support an award.'" In re Moore, 511 S.W.3d 278, 287-88 (Tex. App.—Dallas 2016, no pet.).
Deborah also argues that the trial court abused its discretion by "enforc[ing] the divorce decree by awarding attorney's fees to Godswill Ugwa when the divorce decree specifically proscribes it." But Deborah did not assert this argument below and may not raise this argument for the first time on appeal. TEX. R. APP. P. 33.1(a).
Deborah requested attorney's fees in her enforcement action concerning the same final decree of divorce.
We resolve Deborah's issue concerning attorney's fees against her.
GODSWILL'S RULE 45 MOTION
Godswill filed a Rule 45 Motion for Damages arguing that he should be awarded damages under rule of appellate procedure 45 because Deborah's appeal is frivolous. After considering the record, briefs, and other papers filed in this Court, we may award just damages to each prevailing party if we determine that an appeal is frivolous. TEX. R. APP. P. 45; Archer v. Tunnell, No. 05-15-00459-CV, 2016 WL 519632, at *4 (Tex. App.—Dallas Feb. 9, 2016, no pet.) (mem. op.). Recovery is authorized if an appeal is objectively frivolous and injures an appellee. Solares v. Solares, 232 S.W.3d 873, 883 (Tex. App.—Dallas 2007, no pet.). An appeal is frivolous when the record, viewed from the perspective of the advocate, does not provide reasonable grounds for the advocate to believe that the case could be reversed. Archer, 2016 WL 519632, at *4. The decision to grant appellate sanctions is a matter of discretion that an appellate court exercises with caution and prudence and only after careful deliberation. Id. Although imposing sanctions is within our discretion, we will do so only in circumstances that are truly egregious. Id. After considering the record, briefs, and other papers filed, we decline to impose appellate sanctions against Deborah. We deny the motion for damages.
CONCLUSION
We resolve Deborah's issues against her and affirm the trial court's order. We deny Godswill's motion for damages for a frivolous appeal.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE 161116F.P05
JUDGMENT
On Appeal from the 255th Judicial District Court, Dallas County, Texas
Trial Court Cause No. DF-10-04258.
Opinion delivered by Justice Lang-Miers, Justices Fillmore and Stoddart participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee GODSWILL N. UGWA recover his costs of this appeal from appellant DEBORAH UGWA. Judgment entered this 6th day of June, 2018.