Sherer v. Sherer, 393 S.W.3d 480

Bertha Sherer’s funds were held in Ray Sherer’s name and commingled with Ray’s assets, including a bank account and a Merrill Lynch investment, held for the benefit of Bertha via a trust.
In 1994, the J. Ray Sherer and Patricia J. Sherer Trust was created, with Ray and Patricia as primary beneficiaries and co-trustees, and Ray’s death in 1999 left Patricia as sole trustee under the Trust’s terms.
Patricia allegedly used and converted Bertha’s funds held in the Trust, including real estate sales, and obstructed distribution to Bertha’s heirs; Bertha, James, and Gloria sued Patricia to recover Bertha’s money and seek removal of Patricia as trustee.
The trial court entered the First Judgment (Final Declaratory Judgment) with directions for accounting and potential further court action, concluding no conversion occurred but imposing a constructive trust and ordering an accounting.
Patricia was held in contempt in 2006, and the parties executed a Rule 11 agreement revising the accounting scope to a recap of monthly totals; the accounting reported a combined balance of $78,375 as of December 31, 1998.
Bertha died in 2007; in 2012 the court rendered the Second Judgment awarding damages of $72,891.21, fees, and costs, which Patricia appealed, challenging finality and timeliness under the statute of limitations.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was the First Judgment final or interlocutory?	First Judgment was final under the title and clause.	First Judgment was interlocutory because it reserved amount and further proceedings.	First Judgment was interlocutory; final disposition occurred only with Second Judgment.
Did the statute of limitations bar the claims?	No limitations bar because Final Judgment modified by later proceedings.	Two-year unjust enrichment statute applies; suit timely or barred.	Two-year statute of limitations bars unjust enrichment claims; judgment was barred.
Did the First Judgment’s accounting and subsequent proceedings resolve damages unambiguously?	Accounting finalized the amount due to Bertha.	Damages remained unsettled and contingent on the accounting.	Accounting reserved damages for later determination; not a final, dispositive judgment.

Lehmann v. Har-Corp, 39 S.W.3d 191 (Tex. 2001) (one final judgment rule; finality depends on judgment language and record)
Cavazos v. Hancock, 686 S.W.2d 284 (Tex.App.-Amarillo 1985) (one final judgment rule generally; interlocutory dispositions)
Glunz v. Hernandez, 908 S.W.2d 253 (Tex.App.-San Antonio 1995) (finality of judgments and merger of interlocutory into final)
McCormick Operating Co. v. Gibson Drilling Co., 717 S.W.2d 425 (Tex.App.-Tyler 1986) (damages unliquidated or contingent; not final)
Ferguson v. Ferguson, 338 S.W.2d 945 (Tex. 1960) (accounting treated as ministerial act aligned with final judgment)
Hunt Oil Co. v. Moore, 639 S.W.2d 459 (Tex. 1982) (accounting can prevent finality when damages depend on accounting)
Hinde v. Rinde, 701 S.W.2d 637 (Tex. 1985) (judgment cannot condition finality on uncertain post-judgment events)
Taylor v. Hicks, 691 S.W.2d 839 (Tex.App.-Fort Worth 1985) (finality cannot depend on uncertain future events)
In re R.J.A.H., 101 S.W.3d 762 (Tex.App.-Houston [1st Dist.] 2003) (parental rights termination; finality considerations)
Meadows v. Bierschwale, 516 S.W.2d 125 (Tex. 1974) (constructive trust and unjust enrichment remedies)
Elledge v. Frieberg-Cooper Water Supply Corp., 240 S.W.3d 869 (Tex. 2007) (statutes of limitations for unjust enrichment; two-year rule)