In the Interest of D.W.G., a Child.
No. 04-11-00089-CV.
Court of Appeals of Texas, San Antonio.
Aug. 29, 2012.
ner—have been negated by our previous determination of no enforceable agreement or partnership, we hold the trial court erred in awarding damages and attorney‘s fees. See State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 437 (Tex.1995) (holding attorney‘s fees not generally recoverable unless party prevails under cause of action for which attorney‘s fees are recoverable and damages are recovered); S. Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334, 335 (1939) (holding damage award immaterial when no liability). Accordingly, we sustain issues four and six.5
Conclusion
We reverse the judgment of the trial court and render judgment that Phelps and Helms take nothing.
William H. Ford, Ford & Massey, P.C., Steven A. Sinkin, San Antonio, TX, for Appellee.
Sitting: KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
OPINION
Opinion by: KAREN ANGELINI, Justice.
This is an appeal from a judgment determining appellant Jim Wilburn owes
On appeal, Jim argues the trial court erred in (1) denying his motion to dismiss; (2) denying his motion for partial summary judgment; and (3) granting Virginia‘s summary judgment motions. First, we conclude Jim‘s motion to dismiss was properly denied. Second, we conclude we are unable to review the denial of Jim‘s partial summary judgment motion. Finally, we conclude summary judgment was properly granted as to three of Jim‘s defenses, but was otherwise improperly granted. We reverse the trial court‘s judgment, and remand this case to the trial court for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Jim and Virginia were divorced in Nueces County, Texas, in 1958. In the divorce decree, Jim was ordered to pay $15.00 per week for support of the couple‘s minor child, Diane. This amount was later modified to $60.00 per month. The payments were ordered to be made to the domestic relations department of the district attorney‘s office at the Nueces County Courthouse. When Jim failed to make payments as ordered, Virginia initiated a contempt action against him. The trial court found Jim guilty of contempt for failing to pay child support as ordered, and found Jim “in arrears with his child support payments” “in the amount of $1500.00.” Jim was ordered to pay $10.00 per month toward “the amount in arrears in past child support payments, which sum has been stipulated to be the total sum of $1,500.00.” The contempt order, which was approved by the attorneys for both parties, was signed by the trial court on December 11, 1970. Jim‘s child support obligation ended in 1975, when Diane turned eighteen years old.
More than three decades later, on March 9, 2009, Virginia filed a notice of application for a judicial writ of withholding with the trial court clerk in Nueces County. In the application, Virginia contended Jim owed her $129,950.58 in past due child support as of March 3, 2009. Jim was served with the notice on March 20, 2009. On March 23, 2009, Jim filed a motion to stay the issuance and delivery of the judicial writ of withholding, denying he owed any past-due child support and disputing the amount of arrears. Virginia filed an answer to Jim‘s motion to stay, and asked for affirmative relief consisting of a determination of arrearages under
Next, Jim filed pleadings in which he raised various defenses, including dormancy, laches, res judicata, collateral estoppel, payment, and accord and satisfaction. Additionally,
Thereafter, Virginia filed an amended notice of application for a writ of judicial withholding stating that Jim owed her arrearages totaling $171,626.65 as of July 31, 2009. Virginia also filed three separate motions for summary judgment. Her first motion for summary judgment asserted Jim‘s failure to secure a hearing on his motion to stay within the time period prescribed in
Virginia‘s second motion for summary judgment, which purports to be a no-evidence summary judgment motion, challenged some but not all of the defenses raised by Jim. Specifically, Virginia‘s second motion for summary judgment argued summary judgment should be granted against Jim‘s affirmative defenses based on
On April 27, 2010, the trial court held a hearing on the pending motions. On November 9, 2010, the trial court signed an order (1) granting all of Virginia‘s summary judgment motions; (2) denying Jim‘s dismissal and summary judgment motions; (3) granting Virginia a determination of arrearages in the amount of $171,626.65;1 and (4) awarding Virginia $50,739.00 in attorney‘s fees. Jim appealed.
Notes
MOTION TO DISMISS
Jim argues the trial court erred in denying his motion to dismiss. In this motion, Jim argued that Virginia‘s request for a judicial writ of withholding and a determination of arrearages was precluded by
A. Section 157.005(b) of the Texas Family Code
The court retains jurisdiction to confirm the total amount of child support arrearages and render a cumulative money judgment for past-due child support, as provided by
Section 157.263 , if a motion for enforcement requesting a cumulative money judgment is filed not later than the 10th anniversary after the date:(1) the child becomes an adult; or
(2) on which the child support obligation terminates under the child support order or by operation of law.
Here, Virginia sought a writ of judicial withholding, which is authorized under
The Texas appellate courts that have been presented with the issue of whether
B. Dormancy Statute
On appeal, Jim advances two theories to support his dormancy argument. First, Jim argues that each child support payment not timely made was a final judgment.
Jim further argues that
Having concluded that the arguments presented in Jim‘s motion to dismiss lack merit, we hold the trial court did not err in denying Jim‘s motion to dismiss.
MOTIONS FOR SUMMARY JUDGMENT
Next, Jim argues the trial court erred in granting Virginia‘s motions for summary judgment, and in denying his motion for partial summary judgment.
A. Standard of Review
We review the trial court‘s summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). To prevail on a traditional motion for summary judgment, a movant must show that there is no genuine issue of material fact and that she is entitled to judgment as a matter of law.
When a movant files a no-evidence summary judgment motion, she must specifically challenge the evidentiary support for an element of a claim or defense.
B. Virginia‘s Motion for Summary Judgment Based on Jim‘s Failure to Timely Secure a Hearing
In her first summary judgment motion, Virginia argued that because Jim failed to timely request and secure a hearing on his motion to stay as required by
In response to Virginia‘s summary judgment motion, Jim argued it was the trial court‘s duty to set a hearing on his motion to stay within thirty days. Additionally, Jim contested Virginia‘s calculation of arrearages, and urged that his defenses precluded summary judgment in favor of Virginia. In his response to Virginia‘s motion for summary judgment, Jim argued his motion to stay was filed in the manner required by
On appeal, Jim argues the trial court erred in granting Virginia‘s summary judgment motion for two reasons. First, Jim argues the ground presented in Virginia‘s summary judgment motion, that a party contesting a judicial writ of withholding waives his defenses by failing to timely secure a hearing, was rejected by this court in In re R.G., 362 S.W.3d 118, 123 (Tex. App.—San Antonio 2011, pet. filed). Second, Jim argues that fact issues precluded the trial court‘s finding that Jim owed $171,626.65 in arrearages.
The procedures governing judicial writs of withholding are important to our review of these arguments.
(a) If a motion to stay is filed in the manner provided by
Section 158.307 , the court shall set a hearing on the motion and the clerk of court shall notify the obligor, obligee, or their authorized representatives, and the party who filed the application for judicial writ of withholding of the date, time, and place of the hearing.(b) The court shall hold a hearing on the motion to stay not later than the 30th day after the date the motion was filed, except that a hearing may be held later than the 30th day after filing if both the obligor and obligee agree and waive the right to have the motion heard within 30 days.
(c) Upon hearing, the court shall:
(1) render an order for income withholding that includes a determination of the amount of child support arrearages, including medical support and interest; or
(2) grant the motion to stay.
In R.G., we interpreted
Here, no one disputes that Jim timely filed his motion to stay. However, Virginia asserts
Jim also argues the evidence he submitted in response to Virginia‘s summary judgment motion created a fact issue as to the existence or the amount of arrearages. In reviewing the summary judgment evidence, we must take as true all evidence favorable to Jim, and we must indulge every reasonable inference and resolve any doubts in his favor. See Valence Operating Co., 164 S.W.3d at 661; Knott, 128 S.W.3d at 215. Here, Jim submitted a copy of a 1970 contempt order containing a stipulation as to the amount of arrearages as of December 11, 1970. Jim also submitted an affidavit. Among other things, Jim testified in his affidavit that he remembered making all of the payments required by the December 11, 1970, contempt order. Additionally, Jim testified he made these payments through his attorney‘s office or directly to Virginia; he did not make these payments through the district attorney‘s office at the Nueces County Courthouse. Finally, Jim testified that after his child support obligation ended he gave Virginia $850 in cash and a gold chain necklace with a gold medallion worth at least $1,200.00 in settlement of his child support arrears. We agree that the evidence submitted by Jim in response to Virginia‘s summary judgment motion raised a genuine issue of material fact as to the existence or amount of arrearages.
We, therefore, hold the trial court erred in granting Virginia‘s first motion for summary judgment.
C. Jim‘s Motion for Partial Summary Judgment Based on the Parties’ Stipulation
Jim argues the trial court erred in denying his motion for partial summary judgment based on res judicata and collateral estoppel. Jim acknowledges that normally the denial of a motion for summary judgment is not reviewable on appeal; however, he contends that this case fits within an exception to the general rule because the parties filed cross-motions for summary judgment. However, because this case does not involve cross-motions for summary judgment seeking final relief, it is guided by a different principle. See XTO Energy Inc. v. Smith Production Inc., 282 S.W.3d 672, 676 n. 3 (Tex. App.—Houston [14th Dist.] 2009, pet. dism‘d) (recognizing that appellate review of the denial of a partial summary judgment motion was unavailable when the motion did not seek a final judgment); Bryceland v. AT & T Corp., 114 S.W.3d 552, 555 (Tex. App.—Dallas 2002, pet. granted, judgm‘t vacated w.r.m.) (same); Krohn v. Marcus Cable Assoc., L.P., 43 S.W.3d 577, 583 (Tex. App.—Waco 2001), aff‘d, 90 S.W.3d 697 (Tex. 2002) (same); see also Timothy Patton, Summary Judgments in Texas, § 3.08[4][b] (3rd ed. 2011) (“This principle, that the denial of a cross-motion for summary judgment is reviewable on appeal, should apply only if that cross-motion sought a disposition of all claims in the trial court.“). Here, both parties did not present a summary judgment motion seek- ing a final judgment. Jim‘s motion only sought summary judgment that as of December 11, 1970, the total amount of child support arrears, including interest, was the sum of $1500.00. We, therefore, cannot review the denial of Jim‘s motion for partial summary judgment in this appeal.
D. Virginia‘s Summary Judgment Motions Challenging Jim‘s Defenses
Finally, Jim argues the trial court erred in granting Virginia‘s summary judgment motions challenging his defenses. The defenses raised in Jim‘s live pleadings were
Virginia‘s second motion for summary judgment, filed on March 30, 2010, argues summary judgment should be granted as to Jim‘s defenses under
1. Section 157.005(b) and the Dormancy Statute
Virginia‘s purported no-evidence summary judgment motions do not challenge a specific element or elements of Jim‘s
2. Laches
Virginia‘s purported no-evidence summary judgment motions do not challenge a specific element or elements of Jim‘s laches defense. Thus, we treat these motions as traditional summary judgment motions. In both her second and third motions for summary judgment, Virginia argued that laches was not available as a defense to Jim‘s past due child support obligation or to a judicial writ of withholding. The defense of laches is not available when a party is asserting a statutory legal right. In re M.W.T., 12 S.W.3d 598, 604 (Tex. App.—San Antonio 2000, pet. denied). Here, Virginia, who sought relief under
3. Res Judicata
Res judicata, or claim preclusion, prevents the relitigation of a claim or a cause of action that has been finally adjudicated, as well as related matters that, with the use of diligence, should have been litigated in a prior suit. Gracia v. RC Cola-7-Up Bottling Co., 667 S.W.2d 517, 519 (Tex.1984); In re M.K.R., 216 S.W.3d 58, 62 (Tex. App.—Fort Worth 2007, no pet.). Res judicata requires proof of the following elements: (1) a prior final judgment on the merits by a court of competent jurisdiction, (2) identity of parties or those in privity with them, and (3) a second action on the same claims as were raised or could have been raised in the first action. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex.1996); M.K.R., 216 S.W.3d at 63. Res judicata applies to an agreed judgment and is conclusive on matters actually raised and litigated in the prior action. Smith v. Huston, 251 S.W.3d 808, 825 (Tex. App.—Fort Worth 2008, pet. denied); Jistel v. Tiffany Trail Owners Ass‘n, Inc., 215 S.W.3d 474, 480 (Tex. App.—Eastland 2006, no pet.).
Virginia‘s no-evidence summary judgment motion asserts the 1970 contempt order is not evidence that could support Jim‘s res judicata defense. The motion identifies all the elements of res judicata. It also expressly challenges the first element of Jim‘s res judicata defense, and can be fairly construed as challenging the third element of Jim‘s res judicata defense. Specifically, the motion states “there is not a ‘prior final judgment on the merits by a court of competent jurisdiction’ because prior to January 1, 1974, this remedy did not exist.” Thus, as to res judicata, Virginia‘s summary judgment motion is in fact a no-evidence motion and we treat it as such.
The first element of res judicata involves whether the order in the first action is a final, rather than an interlocutory, order. See M.K.R., 216 S.W.3d at 63-64. Here, there is no question that the 1970 contempt order is a final order. Additionally, there is no question that, even though the remedy of a money judgment for unpaid child support was not available in 1970, the trial court had the authority to determine the amount of arrears owed by Jim.
The third element of res judicata involves whether the second action is based on the same claims as were raised in the first action. Amstadt, 919 S.W.2d at 652. For res judicata to apply, a claim must be in existence at the time the suit is filed. Hernandez v. Del Ray Chem. Int‘l., Inc., 56 S.W.3d 112, 116 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (holding claims concerning transfer of property and promissory note were not barred by res judicata when transfer of property took place after the first trial and promissory note was not the subject of the first trial). Res judicata does not bar a subsequent suit on a cause of action that was not recognized until after judgment was rendered in the first suit. Marino v. State Farm Fire & Cas. Ins. Co., 787 S.W.2d 948, 949 (Tex.1990) (holding insured‘s suit to recover on an insurance policy did not bar a subsequent suit for breach of the duty of good faith when the duty was not recognized at the time of the first suit).
Here, Virginia argues the current case is not affected by the 1970 contempt order because the remedy of a money judgment for unpaid child support did not exist until January 1, 1974. See Harrison v. Cox, 524 S.W.2d 387, 390 (Tex. Civ. App.—Fort Worth 1975, writ ref‘d n.r.e.) (recognizing that prior to January 1, 1974, the only remedy available for collecting unpaid child support was contempt; “[t]he person to whom such support was payable could not prior to that date sue for and reduce the unpaid child support to judgment.“). Nevertheless, whether the remedy of a money judgment for unpaid child support was available at the time the 1970 contempt order was signed has no bearing here. In the 1970 contempt order, the trial court determined, in accordance with the parties’ stipulation, the amount of arrears as of December 11, 1970. Thus, the trial court actually addressed the child support payments owed to Virginia in the 1970 contempt order. This is precisely the issue that was before the court in the current case. We, therefore, conclude the trial court erred in granting Virginia‘s no-evidence summary judgment motion as to Jim‘s res judicata defense.
Finally, Virginia makes an additional res judicata argument on appeal. Virginia argues the 1970 contempt order is void and unenforceable, and therefore, cannot support Jim‘s res judicata defense. A summary judgment, however, must stand or fall on the grounds presented in the motion. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993). Because this argument was not raised in Virginia‘s summary judgment motions, we cannot consider it on appeal. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex.1996) (“[I]n an appeal from a summary judgment, issues an appellate court may review are those the movant actually presented to the trial court.“).
4. Collateral Estoppel, Payment, and Accord and Satisfaction
Virginia‘s summary judgment motions failed to challenge Jim‘s additional defenses of collateral estoppel, payment, and accord and satisfaction. “A summary judgment cannot be granted on the entirety of an opponent‘s case unless the motion addresses each cause of action or affirmative defense of the non-movant.” Timothy Patton, Summary Judgments in Texas, § 3.06[3] (3rd ed. 2011). Because Virginia‘s summary judgment motions failed to address all of Jim‘s affirmative defenses, the trial court erred in granting summary judgment as to the entirety of Jim‘s case.
CONCLUSION
In sum, the trial court erred in granting summary judgment based on Jim‘s failure to set a hearing on his motion to stay within thirty days of its filing. Although the trial court properly granted summary judgment as to Jim‘s defenses based on
We, therefore, reverse the judgment of the trial court in its entirety, and remand to the trial court for proceedings consistent with this opinion.