Luс J. MESSIER, Appellant v. Katy Shuk Chi Lau MESSIER, Appellee
NO. 14-13-00572-CV
Court of Appeals of Texas, Houston (14th Dist.)
Opinion filed January 27, 2015
459 S.W.3d 155
Pamela E. George, Bobby King Newman, Houston, TX, for Appellee.
Panel consists of Justices Boyce, Jamison, and Donovan.
OPINION
Martha Hill Jamison, Justice
Luc J. Messier appeals from the trial court‘s order purporting to enforce and clarify portions of the final decree of divorce between Luc and his ex-wife, Katy Shuk Chi Lau Messier. The issues below and on appeal revolve around community property stock options held in Luc‘s name. A portion of these options were awarded to Katy in the decree, and the principal dispute concerns whether Luc was required to exercise the options upon Katy‘s demand or, instead, was entitled or required to use his own discretion in deciding when to execute them. The trial court determined that the options had to be exercised on Katy‘s demand and issued an order providing for enforcement mechanisms. The trial court further found that, in failing to exercise the options on Katy‘s demand, Luc breached his fiduciary duty to
In four issues, Luc contends that the trial court erred in (1) construing the decree as requiring Luc to exercise the options on Katy‘s demand, (2) “clarifying” the decree by adding detailed orders for Luc to perform and consequences for failure to do so, (3) holding Luc breached his fiduciary duty, and (4) awarding Katy her attorney‘s fees. Because certain claims and issues have become moot during the pendency of the appeal, we vacate the portions of the trial court‘s order that purport to clarify the divorce decree and that hold Luc breached his fiduciary duty to Katy, and we dismiss those claims. Additionally, we modify the award of Katy‘s attorney‘s fees. We affirm the trial court‘s order as modified.
I. Background
The final decree was signed on February 11, 2011. Among other things, the decree divided the marital еstate and determined issues relating to the custody of the children of the marriage.1 As part of the division of property, Katy was awarded a 60% interest and Luc a 40% interest in a number of stock options that Luc had earned through his employment during the marriage as a senior executive for Conoco-Phillips.2 Specifically, as to Luc‘s share, the decree awarded him “[t]he following ConocoPhillips Stock Option Awards, representing 40% of the community portions from [Luc‘s] employment, subject to all related tax liabilities and withholdings....” The decree then listed specific numbers of options from among nine sets of options earned on particular days, for example: “16,320 options of the vested options attributable to the 40,800 options from the 02/08/07 award with an exercise price of $66.37.” In the portion of the decree awarding property to Katy, it awarded her “[a] portion of the benefits, if any, received by Luc ... upon exercise of the following ConocoPhillips Stock Option Awards, representing 60% of the community portions from [Luc‘s] employment, subject to all related actual tax liabilities and withholdings....” It then listed nine sets of options corresponding to the nine sets listed for Luc, for example, “24,480 options of the vested options attributable to the 40,800 options from the 02/08/07 award with an exercise price of $66.37.”
A subsequent section of the decree contained “Special Provisions Regarding Stock Options.” This section stated in part:
The award to [Katy] of a portion of the community stock options is subject to all of the terms, conditions and restrictions of the Company‘s Stock Incentive Plan ... as well as other restrictions that may be imposed by the Company, such as those designated in the Company‘s insider trading policy.
Pursuant tо the terms of the Plans, the stock options awarded to [Katy] cannot be assigned and/or transferred from [Luc] to [Katy] by the Company. The parties acknowledge that (i) the stock options awarded to [Katy] may be exercisable only by [Luc] (or [Luc‘s] legal representative or estate) and (ii) the exercise of the stock options may be sub-
[Katy‘s] stock options are subject to a constructive trust. [Katy‘s] rights in and to the stock options awarded to [Katy] herein, and all benefits appurtenant thereto, shall inure to the benefit of [Katy‘s] heirs, executors and assigns. Similarly, [Luc‘s] obligations as set forth herein shall be binding on [Luc] and on [Luc‘s] heirs, executors, administrators and assigns. Upon the death of [Luc], any stock options awarded to [Katy] which are still exercisable shall be exercised by [Luc‘s] executor or administrator, or by the person who acquires such stock options by will or the laws of descent and distribution, or otherwise by reason of the death of [Luc], as directed by [Katy].
[Luc] shall account for taxes assessed on the exercised stock options and shall cause the proceeds from the stock option exercise, net of taxes assessed, to be transferred to [Katy]. [Katy] shall pay all taxes related to any portion of benefits awarded to her herein by either reporting the income and related withholdings on her return(s), or reimbursing [Luc] for any taxes he is required to pay on amounts awarded to her that are in excess of the related withholdings on her portion.
When [Luc] exercises any option in which [Katy] has an interest ..., he will account to her by delivering the net proceeds. The division of the options will be proportionate between [Luc‘s] separate property and the community property portions henceforth owned jointly between [Luc] and [Katy], and the division of the community property portions of the options shall be 60% to [Katy] and 40% to [Luc].
In April 2012, Katy filed suit in the court of continuing jurisdiction after Luc declined to exercise the stock options on her demand.3 In her Third Amended Motion, her live pleading at the time of trial, Katy essentially contended that the final decree unambiguously established rights and duties that Luc had failed to follow. On that basis, she sought enforcement of the decree, damages for breach of fiduciary duty, imposition of a fine among other relief for contempt, an accounting, and declaratory judgment setting forth Luc‘s оbligations relating to the options. In the alternative, she sought clarification of the decree.
During a hearing on December 19, 2012, Luc testified that he believed that under the final decree, he had a duty as the constructive trustee to use his discretion in deciding when to exercise the options so as to maximize the benefit for Katy. Luc introduced evidence that the options had increased significantly in value from the time of Katy‘s demand to the time of trial. Luc acknowledged, however, that at least a part of his motivation in refusing to exercise the options upon Katy‘s demand was to prevent Katy from leaving the country with the children in violation of travel restrictions placed upon her in the final decree. Katy presented a financial expert who emphasized the significant differences between the financial situations of Luc and Katy and suggested Katy had a more immediate need for access to the options proceeds than did Luc.
The court signed an Order of Enforcement of Final Decree of Divorce and Order
In its order, the court further awarded Katy her “reasonable and necessary” attorney‘s fees and costs of $59,198.75, plus additional amounts in the event Luc filed an appeal.5 The court stated that the fees were “warranted for numerous reasons including the delay caused by [Luc‘s] refusal to exercise [options] upon [Katy‘s] request.” The court also stated that Luc had stipulated to the amount and reasonableness of the fees. The court subsequently issued a set of 134 separately numbered findings of fact and conclusions of law. Luc requested additional findings. Among the findings, the court stated that Luc “did not have unlimited discretion as to whether to exercise the stock options awarded tо Katy” and he breached his fiduciary duty and failed to comply with the decree when he refused to exercise options as Katy requested. During oral argument before this court, counsel representing both parties informed the court that Luc has exercised all of the stock options that were the subject of this action and delivered the proceeds to Katy.
II. The Mootness Doctrine
As stated, counsel for both parties have represented to this court that Luc has, in fact, exercised all of the options assigned to Katy in the decree and delivered the proceeds to her as per her request. In post-submission briefing, Katy‘s counsel has indicated acceptance of Luc‘s performance and no intention to pursue any further enforcement, claims, or remedies concerning the exercise of the options and distribution of the proceeds. We cannot decide moot issues. See, e.g., Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000) (per curiam) (holding appeal of trial court‘s order became moot once appellant complied with order and court of appeals was notified of compliance and court of appeals erred in issuing advisory opinion on merits of appeal).6 The question then becomes which, if any, of Luc‘s appellate issues still present live controversies requiring resolution
As set forth above, Luc raises four issues in this аppeal, contending the trial court erred in (1) construing the decree as requiring Luc exercise the options on Katy‘s demand, (2) “clarifying” the decree by adding detailed orders for Luc to perform as directed and consequences should he fail to do so, (3) holding Luc breached his fiduciary duty, and (4) awarding Katy attorney‘s fees. The attorney‘s fees issue clearly still presents a live controversy as Katy has not relinquished her claim to the award and Luc has not conceded that he should have to pay the fees. See Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642-43 (Tex. 2005) (holding that a dispute concerning attorney‘s fees preserved a live controversy in an otherwise moot appeal); Camarena v. Tex. Emp‘t Comm‘n, 754 S.W.2d 149, 150-51 (Tex. 1988) (same). Similarly, the question of who possessed the right to decide when the options would be exercised is likewise a live controversy because in exercising the options and distributing the proceeds to Katy, Luc did nоt concede that she had the right to demand he take these actions and, if Luc is correct that he had the right to determine when to exercise the options, there would be no basis for awarding attorney‘s fees to Katy. See Camarena, 754 S.W.2d at 151 (noting propriety of attorney‘s fees award was in part dependent on success on the merits). These two issues are, therefore, not moot and still need to be resolved in this appeal.
However, because the trial court‘s “clarifications” no longer have any possible force or effect, given that the options have been exercised and proceeds distributed to Katy‘s satisfaction, the clarifications and the appellate issue challenging them have been rendered moot. Likewise, because the only remedy clearly provided based on the breach of fiduciary duty finding was the clarificatiоns, and they have no possible force or effect, the breach of fiduciary duty issue is also rendered moot. Accordingly, we vacate the portions of the trial court‘s judgment that purport to clarify the divorce decree and that hold Luc breached his fiduciary duty to Katy, and we dismiss Katy‘s causes of action seeking clarification and alleging breach of fiduciary duty. See Houston Mun. Emps. Pension Sys. v. Ferrell, 248 S.W.3d 151, 153-54, 156-57 (Tex. 2007) (vacating portions of court of appeals’ judgment and trial court‘s order that became moot after plaintiff nonsuited cause of action and dismissing that cause of action); Daftary v. Prestonwood Mkt. Square, Ltd., 399 S.W.3d 708, 710 (Tex. App.-Dallas 2013, pet. denied) (vacating portion of judgment awarding possession of property and dismissing moot claim); Lawton v. Lawton, No. 01-12-00932-CV, 2014 WL 3408699, at *1, 5 (Tex. App.-Houston [1st Dist.] July 10, 2014, no pet.) (mem. op.) (vacating portion of order granting summary judgment on moot claims and dismissing those claims); McConnell v. State Farm Lloyds, No. 03-98-00078-CV, 1999 WL 816736, at *5 (Tex. App.-Austin Oct. 14, 1999, pet. denied) (not designated for publication) (vacаting judgment on claim rendered moot by change in the law and dismissing that
We will now proceed to consider the remaining live issues concerning the trial court‘s construction of the decree and award of attorney‘s fees. See In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005) (orig. proceeding) (“A case is not rendered moot simply because some of the issues become moot during the appellate process.“).
III. Construction of the Decree
In his first issue, Luc contends that the trial court erred in interpreting the decree as requiring him to exercise the options on Katy‘s demand. To the contrary, Luc asserts that the decree afforded him the discretion to decide when to exercise the options. As explained above, this issue still presents a live controversy as it pertains to the question of whether Katy is entitled to her attorney‘s fees.
A trial court‘s ruling on a motion for enforcement is reviewed under an abuse of discretiоn standard; however, issues regarding interpretation of a divorce decree are subject to de novo review on appeal. Shanks v. Treadway, 110 S.W.3d 444, 447 (Tex. 2003). The general rules regarding the construction of judgments are applied. Id. “If the decree, when read as a whole, is unambiguous as to the property‘s disposition, the court must effectuate the order in light of the literal language used.” Id. We agree with the trial court that the decree unambiguously afforded Katy the right to determine when her portion of the options should be exercised.
Luc‘s primary argument is a negative one: at no point in the decree does it expressly require him to exercise the options on Katy‘s demand. The decree, however, also is devoid of any express language authorizing or requiring Luc to use his own discretion regarding when to exercise the options. Moreover, the decree clearly awards certain of the options to Katy as her property and gives her control over that property.
Luc insists that the creation of a constructive trust necessarily provided him with the authority and discretion to determine when the options awarded to Katy were to be exercised, but in doing so, he appears to misunderstand the nature of a constructive trust.10 A constructive trust is imposed when one party holds property that legally belongs to the other. See In re Marriage of Harrison, 310 S.W.3d 209, 214 (Tex. App.-Amarillo 2010, pet. denied) (“[C]onstructive trusts are used to right a wrong or prevent unjust enrichment....“). The scope and application of a constructive trust is generally left up to the court imposing it. Baker Botts, L.L.P. v. Cailloux, 224 S.W.3d 723, 736 (Tex. App.-San Antonio 2007, pet. denied). There is no indication in the court‘s creation of a constructive trust or the language of the decree that gave Luc discretion to determine when to exercise the options.
Luc additionally points to language in the decree providing that “[w]hen [he] exercises any option in which [Katy] has an interest ..., he will account to her by delivering the net proceeds” as indicating he was to exercise his discretion in determining when to exercise her options. This language, however, merely reiterates the fact that only Luc could legally perform the mechanical proсess of exercising the options and describes what must happen
Next, Luc points to decree language providing that Katy had a right to direct the exercise of any remaining options upon Luc‘s death. Luc relies on this language to argue that, in parallel fashion, the decree would have expressly authorized Katy to direct the exercise of any remaining options during Luc‘s lifetime if the trial court had intended to create such a right. However, as discussed above, the decree clearly gave Katy the right to exercise her options during Luc‘s lifetime. The additional language regarding who had control of the options in the event of Luc‘s death may have been included simply to prevent any confusion should Luc die before thе options were exercised.
The trial court did not err in holding that the decree unambiguously gave Katy the right to determine when the options assigned to her would be exercised. Accordingly, we overrule Luc‘s first issue.
IV. Attorney‘s Fees & Expenses
In his fourth issue, Luc challenges the trial court‘s award of $59,198.75 in attorney‘s fees, costs, and expenses. We review a trial court‘s decision to grant attorney‘s fees under an abuse of discretion standard, but we review the amount of attorney‘s fees awarded under a legal sufficiency standard. Am. Risk Ins. Co. v. Abousway, No. 14-13-00124-CV, 2014 WL 2767402, at *5 (Tex. App.-Houston [14th Dist.] June 17, 2014, no pet.) (mem. op.).
Luc raises numerous sub-issues related to this award, and we have grouped them into the following categories for discussion purposes: (1) the award was in error because Katy did not succeed on her contempt claim, (2) the evidence is legally insufficient to support the award, (3) there is no legal or factual basis for the award of expert fees, (4) Katy failed to properly segregate fees for causes of action on which fees are recoverable from those for which they are not, and (5) the award of appellate fees was in error for multiple reasons. We will address each set of arguments in turn, finding merit in some but not all.
A. Contempt Claim
We begin with Luc‘s assertion that Katy was not entitled to recover attorney‘s fees because the trial court did not hold Luc in contempt. The gist of the argument appears to be that (1) the trial court did not hold Luc in contempt; (2) therefore, it must have granted Katy judgment based on her breach of fiduciary duty cause of action; and (3) attorney‘s fees generally cannot be recovered on a claim for breach of fiduciary duty. See Hollister, 2013 WL 2149823, at *2.
Katy pleaded generally for attorney‘s fees and pleaded several grounds that could potentially suрport an award of attorney‘s fees, including a declaratory judgment action and enforcement and clarification of the decree. In making the award, the court did not state the basis for its decision but stated that “[t]he award of attorneys’ fees to [Katy] is warranted for numerous reason[s] including the delay caused by [Luc‘s] refusal to exercise upon [Katy‘s] request, options equitably owned by [Katy].” This language links the award to the necessity of filing the enforcement action. A trial court may award reasonable attorney‘s fees in an enforcement or clarification action. See
B. Sufficiency of the Evidence
Luc next challenges the sufficiency of the evidence to support the reasonableness of the attorney‘s fees award-ed. We will reverse a determination of the reasonableness of attorney‘s fees on the basis of a legal sufficiency challenge only if there is no evidence to support it. See Redwine v. Wright, No. 14-10-00030-CV, 2010 WL 5238572, at *2 (Tex. App.-Houston [14th Dist.] Dec. 16, 2010, no pet.) (mem. op.). Factors that a factfinder should consider when determining the reasonableness of a fee include: 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). The trial court does not need to hear evidence on each factor but can consider the entire record, the evidence presented on reasonableness, the amount in controversy, the common knowledge of the participants as lawyers and judges, and the relative suc-
Luc begins by assailing the trial court‘s statement in its order and in its findings of fact and conclusions of law that Luc had stipulated to the reasonableness of Katy‘s fees. The supposed stipulation occurred when, toward the end of the trial, Katy‘s counsel began his testimony in support of fees:
[Luc‘s counsel]: Your Honor, I will stipulate that if he testifies, he will testify that the amount that he‘s claimed here [apparently indicating Exhibit M150, which was a billing statement] is his fees in connection with this matter.
[Katy‘s counsel]: That‘s correct. And my fees, [expert] fees, which have been paid through my firm. My fees, [expert] fees through my firm and [co-counsel‘s] fees. So if I understand the stipulation, he‘s stipulating not that they be paid, but that the rates and amounts charged are reasonable and necessary.
[Luc‘s counsel]: I stipulate that‘s what you‘re going to testify to.
[Katy‘s counsel]: All right. Well, do you stipulate to my qualifications and rate?
[Luc‘s counsel]: Yes.
[Katy‘s counsel]: All right. And [co-counsel‘s]?
[Luc‘s counsel]: All your experts, yes.
[Katy‘s counsel]: Very good. I would offer Exhibit M150, fees that were incurred solely for this enforcement.
....
[Luc‘s counsel]: May I see it? Your honor, we have no objection to this as the testimony he would give. We do object to paying fees.
Although it is not entirely clear exactly how broad the stipulation was intended to be, at a minimum, Luc‘s counsel stipulated to Katy‘s counsel‘s qualifications and rate and that Katy‘s counsel‘s would testify that “the rates and amounts charged [were] reasonable and necessary.” At the conclusion of this exchange, the trial court admitted the detailed billing statement, and Katy‘s counsel further testified that “all of the actions on the [statement] were taken and all of the fees were reasonable and necessary in and around Harris County for similarly complеx cases for similarly qualified lawyers.” Luc‘s counsel did not ask any questions or present any opposing evidence regarding fees. In addition to its statement regarding the stipulation, the court further specifically found that the attorney‘s fees awarded were reasonable given the experience and expertise of counsel and the circumstances presented in the case.
On appeal, Luc contends that the stipulation regarding what Katy‘s counsel would testify to was insufficient to support the award of fees because it was only an admission regarding what counsel would say and not an agreement the fees were reasonable and necessary. While this much is true, having stipulated to Katy‘s counsel‘s qualifications and that he would provide testimony supporting the reasonableness of his fees (without the necessity of actually having to provide such testimony), and having failed to contest the evidence of fees, Luc‘s counsel essentially conceded that there was at least some evidence to support the reasonableness of the fees. At the time, Luc‘s counsel expressed concern only about whether Luc would be required to pay the fees, not about the reasonableness of the fees charged. Moreover, Katy‘s counsel then went on to testify as to the reasonableness of the fees and provide a detailed billing statement and a contract showing services provided, time spent, and
C. Expert Fees
Luc further challenges the award of expert fees in the amount of $27,090.76 on the grounds that there is no legal or factual basis for the award.14 Generally speaking, the fee of an expert witness constitutes an incidental expense in preparation for trial and is not recoverable as costs. In re Weisinger, No. 14-12-00558-CV, 2012 WL 3861960, at *2-3 (Tex. App.--Houston [14th Dist.] Sept. 6, 2012, orig. proceeding) (mem. op.); see also Stanley Stores, Inc. v. Chavana, 909 S.W.2d 554, 563 (Tex. App.-Corpus Christi 1995, writ denied) (holding the trial court erred in making an equitable award of expert witness fees absent statutory authorization). As we explained in Weisinger, expert fees have been awarded under certain provisions of the Family Code, such as chapters 6 (governing suits for dissolution of marriage) and 106 (concerning suits affecting the parent-child relationship). Each of the cited chapters, however, contains provisions permitting courts tо award expenses in addition to costs and attorney‘s fees. See
D. Segregation
Next, Luc argues that Katy failed to properly segregate the fees еxpended in regards to causes of action on which attorney‘s fees are recoverable, such as the enforcement action, from those expended on causes of action for which fees are generally not recoverable, such as breach of fiduciary duty. Absent a contract or statute, trial courts do not have inherent authority to require one party to pay another party‘s attorney‘s fees; thus, claimants generally are required to segregate fees between claims for which they are recoverable and claims for which they are not. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 311 (Tex. 2006). However, when discrete legal services advance both a recoverable and unrecoverable claim, the resulting fees are considered “intertwined” and need not be segregated in order to be recovered. Id. at 313-14; Alief I.S.D. v. Perry, 440 S.W.3d 228, 245 (Tex. App.-Houston [14th Dist.] 2013, pet. denied). Still, if any attоrney‘s fees relate solely to a claim for which fees are unrecoverable, a claimant must segregate the recoverable from the unrecoverable fees. Chapa, 212 S.W.3d at 313; Perry, 440 S.W.3d at 246.
The party seeking to recover attorney‘s fees has the burden of demonstrating that fee segregation is not required. Westergren v. Nat‘l Prop. Holdings, L.P., 409 S.W.3d 110, 138 (Tex. App.-Houston [14th Dist.] 2013), aff‘d in part, rev‘d in part on other grounds, 453 S.W.3d 419 (Tex. 2015). Here, when the trial court rejected Luc‘s segregation argument, the court had before it the parties’ pleadings, the evidence presented on the substantive issues in the case, the testimony of Katy‘s counsel, and Katy‘s counsel‘s billing statements. All of Katy‘s causes of action involved essentially the same allegations regarding the same facts and sought essentially the same ultimate relief: exercise of the options as she directs and disbursement of the proceeds to her. Even if segregation were required in this case, Katy‘s counsel testified that the billing statements admitted into evidence represented “fees that were incurred solely for this enforcement.” Luc‘s counsel did not object, cross-examine Katy‘s counsel regarding this statement, or present any evidence contradicting this representation. For the foregoing reasons, Luc‘s segregation arguments are without merit.
E. Appellate Fees
Lastly, Luc raises several complaints regarding the trial court‘s award of appellate fees to Katy. The court awarded Katy $25,000 in the event of an appeal to an intermediate court of appeals and $15,000 in the event a petition for review was filed with the Texas Supreme Court. Luc specifically complains that the award was not supported by sufficient evidence, was not conditioned on Katy‘s success on appeal, and was ordered to be paid the day after appeal was perfected, and that Katy was awarded post-judgment interest accruing on the amount of appellate fees from the date of the trial court‘s order.
(i) Sufficiency of the Evidence
We generally review a trial court‘s award of appellate attorney‘s fees for an abuse of discretion. See, e.g., Law Offices of Windle Turley, P.C. v. French, 164 S.W.3d 487, 493 (Tex. App.-Dallas 2005, no pet.). To be proper, there must be evidence of the fees’ reasonableness pertaining to appellate work. State and County Mut. Fire Ins. Co. ex rel. S. United Gen. Agency of Tex. v. Walker, 228 S.W.3d 404, 410 (Tex. App.-Fort Worth 2007, no pet.). Luc acknowledges that at trial, Katy‘s lead counsel testified that if the case were appealed, the amounts awarded by the court were reasonable for attorneys with similar experience to himself and his co-counsel. Luc asserts, however, that this statement was too conclusory and unsupported by other evidence. The statement, however, was not made in a vacuum. As discussed above, Luc‘s counsel stipulated to the qualifications and rate charged by Katy‘s counsel, billing statements were admitted into evidence showing the work done on trial of the case, and the judge herself would have been familiar with the complexity of the case, the size of the record, and potential issues on appeal. This evidence was sufficient to support the trial court‘s award of appellate attorney‘s fees.
(ii) Unconditional Award
Next, Luc complains that the award of appellate fees was not conditioned on Katy‘s success in the appeal. A trial court may not grant a party an unconditional award of appellate attorney‘s fees because to do so could penalize a party for taking a meritorious appeal. In re Ford Motor Co., 988 S.W.2d 714, 721 (Tex. 1998); Watts v. Oliver, 396 S.W.3d 124, 135 n. 3 (Tex. App.-Houston [14th Dist.] 2013, no pet.). However, an unconditiоnal award of attorney‘s fees for appeal does not require reversal; instead, we may modify a trial court‘s judgment to make the award of appellate attorney‘s fees contingent upon the receiving party‘s success on appeal. Keith v. Keith, 221 S.W.3d 156, 171 (Tex. App.-Houston [1st Dist.] 2006, no pet.). Accordingly, we will modify the trial court‘s award of appellate fees in the present case to make it contingent on Katy‘s success on appeal.
(iii) Date Due and Accrual of Interest
Lastly, Luc complains that the trial court ordered him to pay Katy‘s appellate fees within a day after she perfected her appeal in an intermediate appellate court or sought review in the Texas Supreme Court and provided that post-judgment interest would begin to accrue on the amount awarded for appellate fees as of the date the trial court entered its judgment. We have previously explained that, because an award of appellate fees depends on the outcome of the appeal, it is not a final award until the appeal is concluded and the appellate court issues its judgment; thus, the fees would not be due and interest on those fees should not begin to accrue until the appellate court issues its judgment. See Watts, 396 S.W.3d at 134-35 (citing Apache Corp. v. Dynegy Midstream Servs., Ltd. P‘ship, 214 S.W.3d 554, 566-67 (Tex. App.-Houston [14th Dist.] 2006), rev‘d in part on other grounds, 294 S.W.3d 164 (Tex. 2009), and Protechnics Int‘l, Inc. v. Tru-Tag Sys., Inc., 843 S.W.2d 734, 736 (Tex. App.-Houston [14th Dist.] 1992, no writ)). Accordingly, we further modify the trial court‘s judgment to clarify that payment of the fees is not due and interest on the fees does not begin until the appellate court issues its judgment. See id.
V. Conclusion
We vacate the portions of the trial court‘s order that purport to clarify the divorce decree and that hold Luc breached his fiduciary duty to Katy, and we dismiss those causes of action. Additionally, we modify the amount awarded as attorney‘s feеs and costs by subtracting $27,090.76 from the amount awarded. We further modify the trial court‘s award of appellate fees to make such fees contingent on Katy‘s success on appeal and to clarify that payment of the fees is not due and interest on the fees does not begin to accrue until the appellate court issues its
Notes
In post-submission briefing, Luc urges application of the collaterаl consequences exception to the mootness doctrine. “The ‘collateral consequences’ exception has been applied when Texas courts have recognized that prejudicial events have occurred ‘whose effects continued to stigmatize helpless or hated individuals long after the unconstitutional judgment had ceased to operate. Such effects were not absolved by mere dismissal of the cause as moot.‘” Gen. Land Office v. OXY U.S.A., Inc., 789 S.W.2d 569, 571 (Tex. 1990) (quoting Spring Branch I.S.D. v. Reynolds, 764 S.W.2d 16, 19 (Tex. App.-Houston [1st Dist.] 1988, no writ)). Luc‘s arguments appear premised on the notion that the mootness of these issues would leave the trial court‘s order unchanged, including the finding of a breach of fiduciary duty. He makes no argument that any disadvantage he perceives from the court‘s order would persist even once the portion of the order he complains about has been vacated. We find nо merit in his argument. See Reule v. RLZ Invs., 411 S.W.3d 31, 33 (Tex. App.-Houston [14th Dist.] 2013, no pet.) (declining to apply collateral consequences exception where appellant failed to explain why perceived disadvantage would persist after judgment was vacated).
Luc cites one case in support of his argu- ment, Preston v. Preston, No. 04-03-00333-CV, 2004 WL 1835765 (Tex. App.-Houston [14th Dist.] Aug. 18, 2004, no pet.) (mem. op.). In Preston, we determined that the four- year statute of limitations governing breach of fiduciary duty causes of action applied where a constructive trust had been created rather than the two-year statute which generally gov- erns suits to enforce the property. Id. at *2. We addressed the breach of fiduciary duty cause of action, however, as an action “to enforce the divorce decree.” Section 9.014 authorizes trial courts to award reasonable attorney‘s fees in a proceeding to enforce a decree. Nothing in Preston restricts this au- thority.