Opinion by
Patricia J. Sherer appeals the trial court’s judgment awarding Gloria Jean Sherer, individually, and James Ray Sherer, individually and with power of attorney for Bertha M. Sherer,
I. Factual and Procedural History
James and Gloria sued their stepmother, Patricia, to recover property belonging to their grandmother, Bertha, held under the name of her son, J. Ray Sherer (Ray), who predeceased Bertha in 1999. Although the family members could not recall the reasons for this arrangement,
In 1994, Ray and Patricia set up a revocable trust called the “J. Ray Sherer and Patricia J. Sherer Trust” (Trust). Ray and Patricia were the primary beneficiaries of the Trust. Upon the deaths of Ray and Patricia, the Trust assets were to be distributed among the couple’s children. The investment money Bertha gave to Ray in 1978 was commingled with the Trust assets.
After Ray passed away, Patricia sent Bertha a letter offering to tender to her $14,368.00 provided that she sign a release that Patricia did not have any assets belonging to her.
After a hearing at which the motions for summary judgment were considered along with other issues, the late Honorable Jim Dick Lovett rendered judgment that Patricia had not converted any asset belonging to Bertha,
N. Patricia J. Sherer is to make a full and complete accounting on or before December 1, 2005, of any assets currently held in the Trust which belong to Bertha M. Sherer, and upon which the Court has imposed a constructive trust....
O. In the event, the Plaintiffs do not approve the accounting made by Patricia J. Sherer of the assets held in constructive trust for the benefit of Bertha M. Sherer, then, in that event, the matter will be submitted to the Court of the Court’s approval and/or determination and direction.
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4. Patricia J. Sherer, as constructive trustee, is to turn over to James Ray Sherer, as attorney in fact for Bertha Sherer, all funds held in the Trust by Patricia J. Sherer, as constrictive trustee, for the benefit of Bertha Sherer, by cashiers .check made payable to James Ray Sherer, as attorney in fact for Bertha M. Sherer, within ten days of the approval by either the Plaintiffs or the Court, of the accounting ...
We will refer to this document as the First Judgment.
On February 9, 2006, the trial court held Patricia in contempt and ordered her to pay $14,368.00 by the end of the day. It is uncontested that Patricia made this payment. The contempt order, though, made it clear that this amount did not resolve the dispute. The order specifically provides, “[S]uch amount is subject to modification upon receipt and approval of the accounting to be tendered by the Constructive Trustee.” Shortly after being held in contempt of court, the parties executed a Rule 11 agreement that was filed with the court on March 10, 2006. In this agreement, the parties “stipulate that the beginning balance for the purpose of accounting is $11,825.00, which was the beginning balance as of October 27, 1978, deposited in either the Bank account or Merrill Lynch account” and modified the terms for the accounting to permit “a recap of monthly totals ... in lieu of providing a more detailed accounting as provided by the Texas Trust Code.” The Rule 11 agreement, though, did not modify the time period covered by the accounting. On March 9, 2006, Patricia’s accountant provided an accounting of the bank account and the Merrill Lynch account from 1978 until December 31, 1998. As of De
Bertha passed away in 2007, and the case apparently languished for several years.
On October 26, 2010, James and Gloria filed a “Motion to Enforce the Declaratory Judgment.” At the hearing, James and Gloria presented expert testimony by Brian K. Cunningham, a certified public accountant, who testified that a conservative rate of return for the $78,375.00 in the Merrill Lynch account from 1999 until 2011 would be an increase of $56,426.79. Cunningham also testified that a conservative rate of return on the $14,368.00 from 1999 until 2011 would be an increase of $9,265.34.
Patricia presented expert testimony of Steven W. Mohundro, a certified public accountant. Mohundro testified that the bank account at First National Bank of Bonham was a “cash management account” for the Merrill Lynch account and, as of December 31, 1998, had a balance of $30,076.91. The Merrill Lynch account had a securities value of $48,299.00 for a total value of $78,375.00. Mohundro also testified that on November 15, 1978, there was an initial deposit of $23,950.37. Mo-hundro, though, testified that assuming Bertha did not accumulate any savings from her retirement and social security checks that were deposited into the bank account
On January 12, 2012, the current district judge signed an order awarding Bertha’s estate, James, and Gloria $72,891.21 in damages, attorney’s fees in the amount of $18,531.36, and costs in the amount of $4,891.25. We will refer to this order as the Second Judgment.
II. The First Judgment Was an Interlocutory Judgment
In her first two issues, Patricia argues that the trial court lacked jurisdiction to render the Second Judgment. Patricia also argues that the Second Judgment violates the one judgment rule and, consequently, is void.
We first note that the First Judgment cannot be final as to some issues but not other issues. Subject to limited exceptions not present in this case,
We note that the First Judgment was titled “Final Declaratory Judgment” and contained a “Mother Hubbard”
A final judgment
But the language of an order or judgment can make it final, even though it should have been interlocutory, if that language expressly disposes of all claims and all parties. It is not enough, of course, that the order or judgment merely use the word “final”. The intent to finally dispose of the case must be unequivocally expressed in the words of the order itself. But if that intent is clear from the order, then the order is final and appealable, even though the record does not provide an adequate basis for rendition of judgment.
Id. at 200. Whether an order is a final judgment must be determined from its language, the record, and the conduct of the parties in the case. Id. at 195. At oral argument, the parties agreed that the First Judgment was not rendered after a conventional trial on the merits.
The general rule is that “[a] judgment must be sufficiently definite and certain to define and protect the rights of all litigants, or it should provide a definite means of ascertaining such rights, to the end that ministerial officers can carry the judgment into execution without ascertainment of facts not therein stated.” Stewart v. USA Custom Paint & Body Shop,
Patricia argues that the judgment became final when Bertha failed to object to the accounting within thirty days.
In Hinde, the trial court determined that a life insurance policy was improperly cancelled and awarded the plaintiff $49,547.11. Hinde,
“A judgment may not rest upon what may or may not occur after its rendition, and must take its validity from the action of the court and not from what persons may or may not do after the court has rendered the judgment.” Taylor v. Hicks,
Further, even if Bertha’s failure to object resulted in the accounting being approved, the accounting fails to resolve the amount of damages owed. In McCormick, a judgment contingent on the resolution of another suit and which failed to specify the amount of damages under some circumstances was not a final judgment. McCormick Operating Co. v. Gibson Drilling Co.,
Similar to McCormick, the First Judgment fails to determine the amount of the damages. Although Patricia claims the accounting shows she only possessed $14,368.00 of Bertha’s money, the accounting makes no such determination. The accounting merely established that as of December 31, 1998, the commingled accounts had a cumulative balance of $78,375.00. It did not identify what portion of that money belonged to Bertha. Even if a timely objection was not made, the amount of the damages could not be determined without a judicial adjudication. Further, Patricia was also ordered to “turn over to James Ray Sherer, as attorney in fact for Bertha Sherer, all funds held in Trust....” It is uncontested that Patricia
The express language of the First Judgment indicates further proceedings will occur. The question is whether these further proceedings render the judgment intrinsically interlocutory. We note that “a judgment may be final even though further proceedings incidental to its proper execution are provided for on the face of the judgment.” Med. Admrs., Inc. v. Roger Properties, Inc.,
We note that there is some authority that a judgment can be final despite ordering an accounting. In Ferguson v. Ferguson, the Texas Supreme Court determined that a judgment awarding the wife one-half of the profits of the husband’s business and ordering the husband to furnish a future accounting to decide the amount of the profits was a final judgment. Ferguson v. Ferguson,
An accounting, though, can prevent a judgment from being final. In Hunt Oil Co. v. Moore, the Texas Supreme Court distinguished Ferguson and concluded that the partial summary judgment was not final because of a later accounting. Hunt Oil Co. v. Moore,
We believe Ferguson and Hunt Oil can be reconciled based on whether the accounting was a ministerial act or whether the accounting would require a judicial determination of disputed facts. In Ferguson, the court viewed the rendering of the accounting and profits as a “ministerial act incident to the final judgment.” Ferguson,
Patricia argues that the Second Judgment modified the amount of Bertha’s money previously determined to be in her possession. The problem is that the First Judgment did not make any determination as to that amount and explicitly ordered an accounting in contemplation of a later determination of the amount. The amount of Bertha’s money in Patricia’s possession was never determined until the rendition of the Second Judgment. The First Judgment was merely an interlocutory order which could be modified until the trial court finally disposed of the case.
Although the First Judgment is titled “Final Declaratory Judgment,” the First Judgment contemplated further proceedings and further judicial action. The First Judgment explicitly left the amount of money that belonged to Bertha to be determined. As a result, the First Judgment was intended, despite its title, to be an interlocutory action. The First Judgment did not become a final judgment until the trial court rendered the Second Judgment disposing of all of the issues.
III. The Statute of Limitations Bars Suit
Before the trial court rendered the First Judgment, Patricia filed a summary judgment motion arguing, among other things, that the claims were barred by the statute of limitations. When the trial court rendered the Second Judgment, the denial of this summary judgment became final. Patricia renewed her statute of limitations argument in the “Defendant’s objections to Plaintiffs Proposed Judgment,” which states, “Further the Plaintiffs are barred from this recovery by limitations.” In addition, Patricia submitted proposed findings of fact and conclusions of law,
The Plaintiffs filing of their declaratory judgment on July 27, 2004, was more than four (4) years after the date that the Plaintiffs had knowledge of their claim and had in fact made demand upon the Defendant on June 29, 2000, resulting in the Plaintiffs’ claims against the Defendant being barred by limitations.
On appeal, Patricia argues that limitations ran before the suit was filed in 2004 and, alternatively, that limitations began to run when the First Judgment declared Patricia a constructive trustee. In their brief, James and Gloria argue that Patricia has waived any statute of limitations argument by failing to appeal the First Judgment.
In the Appellees’ original pleadings, it was alleged that Patricia had retained monies lawfully owned by Bertha and had directly taken money from such
The statute of limitations did not start to run when the trial court imposed a constructive trust; rather, the limitations period started to run when the unjust enrichment cause of action accrued. Patricia’s argument presumes that a constructive trust is a cause of action. A constructive trust is a remedy — not a cause of action. See Meadows v. Bierschwale,
Although Bertha only specifically pled conversion, the First Judgment made an implied finding of unjust enrichment.
The record conclusively established Bertha failed to timely file suit. On June 29, 2000, Bertha sent Patricia a letter, which provides as follows:
FURTHERMORE, WE DEMAND THAT ALL MONIES HELD BY PATRICIA J. SHERER BELONGING TO BERTHA SHERER BE RETURNED IMMEDIATELY. IF SAID MONIES ARE NOT RETURNED IMMEDIATELY, THEN ALL EVIDENCE REGARDING THIS MATTER WILL ALSO BE PRESENTED TO THE PROPER AUTHORITIES FOR PROSECUTION.
On July 21, 2000, Patricia advised Bertha that she was in possession of $14,368.00 of Bertha’s money. Patricia, though, demanded that Bertha sign a release that the Trust did not have any other assets belonging to Bertha before she would tender the $14,368.00. Bertha, James, and Gloria did not file suit until July 27, 2004.
The record conclusively establishes that the applicable two-year statute of limitations for unjust enrichment bars suit. See Tex. Civ. Prac. & Rem.Code Ann. § 16.003. The trial court erred in rendering judgment awarding damages for Patricia’s unjust enrichment.
IV. Conclusion
We conclude that the trial court had jurisdiction to render the Second Judgment because the First Judgment, despite claiming to be final, was actually only an interlocutory judgment. The intent of the First Judgment was for further proceedings to occur. The First Judgment became final when the trial court rendered the Second Judgment. The trial court, though, erred in concluding that the statute of limitations did not bar suit. Bertha failed to timely bring suit against Patricia.
We reverse the trial court’s judgment and render a take nothing judgment in favor of Patricia.
Notes
. We note that Bertha M. Sherer passed away on October 30, 2007. Although the record contains a notice of death and a request for an amendment of the parties, the parties have proceeded without any amendment of the parties. See Tex.R.App. P. 7.1 (“[T]he appellate court will proceed to adjudicate the appeal as if all parties were alive .... [t]he decedent party’s name may be used on all papers.”); Tex.R. Civ. P. 151 (procedures for filing suggestion of death of plaintiff).
. The reasons for this arrangement appear to have been forgotten in the mists of time. None of the witnesses at the second hearing could remember the reasons for this arrangement. We note that Bertha’s husband passed away in 1979 after a prolonged illness. Testimony at the second hearing established that the funds were transferred to Ray’s name and Bertha moved into a house on Ray’s property around the time that Bertha’s husband was admitted to a long-term-care facility. In her motion for summary judgment, Patricia suggests the arrangement was to help Bertha qualify for Medicaid benefits. In her affidavit, Patricia claims Bertha certified, in 1990, she had no assets and qualified for Medicaid. At the second hearing, James testified Bertha was not on "public assistance” until she was 104 years old because her income was too high due to her teacher’s retirement and social security.
. Testimony at trial established that Ray frequently acknowledged that he was looking after Bertha’s money.
. At the second trial, Patricia testified, "We never put any of Bertha's money in our personal trust.” The trial court resolved this disputed fact issue by finding the Trust did contain comingled funds. This conclusion has not been challenged on appeal.
. We note that the First Judgment, discussed below, approves of Patricia serving as trustee. We note this finding has not been challenged on appeal.
. In a letter attached as an exhibit to her response to the motion for sanctions, Patricia claims this is the amount of funds transferred into the account from Bertha’s account. We note this letter was not admitted as evidence at trial.
. This finding of fact was rendered in the judgment. Findings of fact should not be rendered in the body of a judgment and, if rendered in the body of a judgment, cannot be considered on appeal. See Tex.R. Civ. P. 299a ("Findings of fact shall not be recited in a judgment.”); Sutherland v. Cobern,
. This demand was based on twenty-eight years of return based on an average Federal Reserve six-month Certificate of Deposit rate of nine percent.
. Mohundro testified that he assumed Bertha’s living expenses exceeded her retirement, but did not base this assumption on any personal knowledge and was not presented with any evidence of what Bertha's expenses actually were.
. Patricia testified that the agreed $11,825.00 would have been depleted based on rent payments. Patricia presented one check from 1978, which she claimed to be a rent payment in the amount of $150.00. The copy of the check in the appellate record is illegible, and Patricia did not present any other evidence that a landlord-tenant relationship existed between Bertha and Ray.
. Travelers Ins. Co. v. Joachim,
. Under the Texas Declaratory Judgment Act, a trial court may award supplemental ancillary relief to enforce a declaratory judgment. See Tex. Civ. Prac. & Rem.Code Ann § 37.011 (West 2011). It is not necessary for us to determine whether the relief awarded exceeds that which may be awarded as supplemental ancillary relief under the Act.
.James and Gloria argue that this Court’s opinion in In re Sherer, No. 06-11-00045-CV,
. Exceptions have been recognized for probate and receiver cases. Lehmann v. Har-Con Corp.,
. See Webb v. Jorns,
. As used in this context, a Mother Hubbard clause recites that all relief requested and not granted is denied.
. We note that the term "final judgment” may have different meanings in different contexts. Street v. Honorable Second Court of Appeals,
. We note that an exception may exist if some of the defendants have not been served. A judgment is final for purposes of appeal when (1) a judgment expressly disposes of some, but not all, defendants, (2) the only remaining defendants have not been served or answered, and (3) nothing in the record indicates that the plaintiff ever expected to obtain service on the unserved defendants, such that the case "stands as if there had been a discontinuance” as to the unserved defendants. In re Sheppard,
. Patricia has not argued accord and satisfaction. There is no evidence of any settlement or similar agreement in the record.
. We note that the defendant’s proposed findings of fact and conclusions of law were filed on the same day that the trial court issued its findings of fact and conclusions of law. Although the proposed findings were filed after the notice of appeal, the trial court still retained jurisdiction to vacate or modify its judgment. See Tex.R. Civ. P. 329b(d) ("The trial court, regardless of whether an appeal has been perfected, has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment within thirty days after the judgment is signed.”).
. On appeal, James and Gloria argue limitations do not apply because (1) no appeal was taken from Judge Lovett's judgment, (2) a judgment does not become dormant for ten years, and (3) Patricia has not pled or argued laches. These arguments, though, require the First Judgment to have been a final judgment. As discussed above, the First Judgment was not a final judgment. The arguments of the parties concerning whether the First Judgment was final are addressed above.
.
The unjust enrichment doctrine applies the principles of restitution to disputes which for one reason or another are not governed by a contract between the contending parties. See Lone Star Steel Co. v. Scott,759 S.W.2d 144 , 154 (Tex.App.-Texarkana 1988, writ denied). When a defendant has been unjustly enriched by the receipt of benefits in a manner not governed by contract, the law implies a contractual obligation upon the defendant to restore the benefits to the plaintiff. Barrett v. Ferrell,550 S.W.2d 138 , 143 (Tex.Civ.App.-Tyler 1977, writ ref’d n.r.e.); 42 C.J.S. Implied and Constructive Contracts § 5. Unjust enrichment is typically found under circumstances in which one person has obtained a benefit from another by fraud, duress, or the taking of an undue advantage. Heldenfels Bros. v. City of Corpus Christi,832 S.W.2d 39 , 41 (Tex.1992). Recovery under principles of unjust enrichment is also appropriate when a contemplated agreement is unenforceable, impossible, not fully performed, thwarted by mutual mistake, or void for other legal reasons. City of Harker Heights v. Sun Meadows Land, Ltd.,830 S.W.2d 313 , 319 (Tex.App.-Austin 1992, no writ).
Burlington N. R.R. v. Sw. Elec. Power,
. We note that Bertha was entitled to a choice of either a constructive trust or an equitable lien. See Meadows,
. We note that James, Gloria, and Bertha did not plead unjust enrichment. Patricia, though, has not complained about this pleading defect on appeal and we will presume unjust enrichment was tried by consent. See Tex.R. Civ. P. 67.