TERRY LEE BIZZLE v. EVE LYNN BAKER
No. 02-20-00075-CV
Court of Appeals Second Appellate District of Texas at Fort Worth
January 13, 2022
Justice Gabriel
On Appeal from the 367th District Court Denton County, Texas Trial Court No. 18-9925-367. Before Bassel and Womack, JJ.; and Lee Gabriel (Senior Justice, Retired, Sitting by Assignment)
MEMORANDUM OPINION
In this appeal, we are asked to decide if the trial court lacked subject matter jurisdiction when it signed a final decree of divorce after the appellee, Eve Lynn Baker, died. In his first issue, the appellant, Terry Lee Bizzle, asserts that the final decree of divorce signed by the trial court after Baker‘s death is void due to the trial court‘s lack of subject matter jurisdiction. We will address only Bizzle‘s first issue because it is dispositive of this appeal. We reverse the decision of the trial court and render judgment dismissing the case.
I. BACKGROUND1
On October 23, 2018, Baker filed a divorce petition to dissolve her twenty-year marriage to Bizzle. See
On September 17, 2019, during a bench trial, there was a great deal of back and forth between the court and attorneys dealing with property valuation and division.
THE COURT: Okay. I‘ll say, I cannot do this in 40 minutes. I have to do a spreadsheet here, look at the two spreadsheets, see what the differences are.
MR. NELSON: Do you want to e-mail it to us?
THE COURT: Yes.
. . . .
THE COURT: All right. And so I‘m trying to get some idea of how long this is going to take. I have one case right now that is going to take a little while. This is – this is definitely not going to happen by the end of the week. This is – your best hope is a week from Friday.
I will, though, certainly e-mail the parties with the decision on it.
The parties were then poised to leave without any ruling in the case.
THE COURT: Thank you all very much. I appreciate all the work that y‘all have done for me.
MR. NELSON: Are we excused?
THE COURT: Yes.
After a break on the record, the proceedings resumed.
THE COURT: That‘s what the parties want?
MS. ROSE: Please.
THE COURT: (Overlapping) Right? All right. The parties are divorced. I pronounce and render all of that as of today and that entry of the final decree of divorce will be ministerial in nature.
On October 4, 2019, the court sent the following email to the attorneys:
Baker/Bizzle divorce ruling
Granted on the ground of insupportability.
- Neither party proved by clear and convincing evidence their claims for reimbursement.
- H cashed out and used his two retirements without proving how much, if any, was separate.
- W awarded the CD in the amount of $7,745
- Using wife‘s Exhibit 1, I believe the only items on the list that are not agreed to were those highlighted on a copy for the court. Those disputed items are awarded to W.
- Each party keeps the motor vehicles in their possession and any debt thereon.
- The TN house and its contents with any debts or liens thereon to H. House valued at $98,000
- The TX house with all contents except those specifically awarded to H. House valued at $217,000. Second mortgage of approximately $35,000 debt to wife.
- The wife‘s $12,500 school loan is community debt; awarded to W.
- H awarded all items listed on H Ex. 3 entitled H‘s “Requested items from Carrollton Residence“, except the Maytag washer & dryer.
- Each party pays their own attorney‘s fees, and their own credit card debt, and any lien or other debt encumbering any item they were awarded.
Mr. Nelson to prepare the Decree. If I have missed something, please visit between yourselves and designate one of you to send an email to me. Please do not send separate emails.
Thank you for your courtesy,
Judge Barnes
The court never filed this email with the clerk.3
The court sent the parties an email on November 8, 2019, expressing an intent to set the case for a dismissal-for-want-of-prosecution (DWOP) hearing in December because a decree had not been submitted. The hearing was set for December 13, 2019. On December 3, 2019—prior to Baker‘s death—the court sent another email in response to the parties’ canceling the December dismissal setting. The court addressed the delay and its expectation:
This case was set nearly a month ago for a DWOP. Now, it is reset for a DWOP for another six weeks. Please use this six weeks to work out
whatever is holding up entry of the Order. If there is no Order for me to sign on Jan. 24, you should presume a high probability that the case will be dismissed on that date. Feel free to efile a Final Decree that has at least the signatures of the lawyers before that date.
On or about December 19, 2019, Baker passed away, and on December 27, 2019, Baker‘s counsel filed a motion to sign. On December 30, 2019, Bizzle filed his first notice of death, motion to abate, and motion to dismiss, and he amended that pleading on January 3, 2020. The court held its dismissal hearing on January 24, 2020.
At the dismissal hearing, the court recognized that there were multiple motions pending before the court but suggested that “the first question [would] simply be whether or not this Court has jurisdiction anymore?” The parties agreed. The entire hearing focused on this issue and it was argued at length. A decree was furnished to the court. Baker‘s counsel represented that “[he] prepared the decree pursuant to your instructions. [Counsel for Bizzle] inter--- redlined it, and I was scheduled to meet with my client and she died.” The court then stated that “nobody signed on the . . . final document because of, again, horrific circumstances.” The court took the issue under advisement. On January 31, 2020, the trial court implicitly granted Baker‘s motion to enter a final decree of divorce when it modified the decree submitted, added exhibits, and signed the modified final decree of divorce.4 By signing the decree, the trial court denied Bizzle‘s pending motions. On February 28, 2020, Bizzle
II. DISCUSSION
In his first issue, Bizzle argues that the final decree of divorce is void for lack of subject matter jurisdiction because Baker died before a full and final rendition of judgment on all issues in the case and because the decree was entered over objection after Baker‘s death. Bizzle contends that the trial court‘s September 17, 2019 oral rendition of divorce was interlocutory and that the trial court‘s October 4, 2019 email was not a rendition because it was never filed with the clerk or officially announced on the record and further did not express a present intent to render.
Subject matter jurisdiction concerns the court‘s power to hear and determine a particular type of case. CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex. 1996) “Subject-matter jurisdiction cannot be waived, and can be raised at any time.” Alfonso v. Skadden, 251 S.W.3d 52, 55 (Tex. 2008). “A judgment is void if rendered by a court without subject matter jurisdiction.” In re USAA, 307 S.W.3d 299, 309 (Tex. 2010) (orig. proceeding). Whether a trial court has subject matter jurisdiction is a question subject to de novo review. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998); In re G.S.G., 145 S.W.3d 351, 353 (Tex. App.—Houston [14th Dist.] 2004, no pet.).
While the issue is whether the trial court lacked subject matter jurisdiction when the final decree was entered, the answer to that question depends on whether the oral rendition on September 17, 2019, or the oral rendition plus the email of October 4, 2019, are legally sufficient to constitute a full and final rendition of judgment in the case.
We will address the oral rendition first. It is undisputed that at the conclusion of the hearing, the trial court took the property valuation and division issues under
Rendition of judgment is “the judicial act by which the court settles and declares the decision of the law upon the matters at issue.” Genesis Prod. Co. v. Smith Big Oil Corp., 454 S.W.3d 655, 659 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (citing Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 58 (Tex. 1970) (orig. proceeding)). “In order to be an official judgment, the trial court‘s oral pronouncement must indicate an intent to render a full, final and complete judgment at that point in time.” Gamboa v. Gamboa, 383 S.W.3d 263, 270 (Tex. App.—San Antonio 2012, no pet.); In re Marriage of Joyner, 196 S.W.3d 883, 887 (Tex. App.—
Next we will consider whether the October 4, 2019 email transformed the interlocutory oral pronouncement into a final judgment. “Judgment is rendered when the trial court officially announces its decision in open court or by written memorandum filed with the clerk.” S&A Rest. Corp. v. Leal, 892 S.W.2d 855, 857 (Tex. 1995); Wittau v. Storie, 145 S.W.3d 732, 735 (Tex. App.—Fort Worth 2004, no pet.) (per curiam). It is undisputed that the trial court‘s ruling on which ground (alleged, but not withdrawn) it was granting the divorce and its property issues rulings
At the January 24, 2020 dismissal hearing, where this issue was thoroughly argued, Baker relied heavily on Dunn. See 439 S.W.2d at 831–34. While Dunn‘s facts concerning a divorce filing, a trial, and the death of one party before a decree was signed resemble the facts of this case, that is where the similarities end. At the conclusion of the trial in Dunn, the trial judge stated, “May I say as a preliminary remark, and I am going to decide the case right now, not going to take it under advisement. I am going to grant the divorce to Mrs. Dunn . . . .” Id. at 831. The trial court went on to orally pronounce a decision on property division, payment of certain taxes, and attorney‘s fees. Id. at 831–32. Two days later, Mr. Dunn passed away. Id. at 832. Mrs. Dunn filed a motion to dismiss, which was denied by the court, and a final decree of divorce, reflecting the orally pronounced rulings of the court, was signed. Id. The supreme court found the trial court‘s oral judgment to be a final judgment that was dispositive of all the issues. Id. at 833. On the record, the trial judge in Dunn made it perfectly clear that it was his intent to pronounce, and that he was pronouncing, a final ruling in the case. Id. at 831. Dunn is factually distinguishable from this case.
On appeal, Baker took a largely different approach to this issue. Baker relies on cases that state that “a decision announced by letter from the court to the parties when no announcement is made in open court or any memorandum filed with the
In Ortiz, the jurisdiction of the appellate court was challenged because the appeal bond was filed 31 days after a judgment was signed and filed on September 24, 1979. Ortiz, 611 S.W.2d at 863. A letter dated the following day from the trial court to the attorneys created the issue of the actual date of rendition. Id. In that case, the court noted that “the record does contain a letter dated September 25, 1979, and signed by the trial judge which informed the attorneys of his decision in the case on the merits and stated that the judgment would be ‘. . . entered as of this date.‘” Id. at 864. On October 25, 1979, the trial judge signed an order amending the judgment to reflect a date of September 25, 1979, instead of September 24, 1979. Id. The court found that the trial judge‘s letter to counsel was the public announcement and rendition of the court‘s final decision and that appellate timelines began on September 25, 1979; thus, the appeal bond was timely filed. Id.
The issue in Ortiz differs from the issue in this case. The sole issue in Ortiz was whether an appeal was timely perfected. No one challenged the sufficiency of the letter as expressing a full and final ruling on all issues or asserted that it did not
Atlantic Richfield Co. also dealt with a timing-of-rendition question that would determine whether a party could pursue discovery. 663 S.W.2d at 864. Although the trial judge signed an order granting partial summary judgment on May 10, 1982, the court found April 2, 1982 to be the date of rendition of the partial summary judgment in the case because “that is the date when the trial court‘s decision was publicly announced both through a memorandum filed with the clerk, i.e., the initialed docket entry, and letter to counsel for one of the parties.” Id. at 863 (emphasis added). The memorandum filed with the clerk by the trial judge stated “Apr 2 1982 M/Partial S.J. granted. W.E.J.” Id. at 862. The April 2, 1982 ruling filed with the clerk was a clear and final ruling granting a partial summary judgment, and the court‘s present intent to finally rule on April 2, 1982 was not the issue in that case. As with Ortiz, Atlantic Richfield‘s facts and issues are distinguishable from the case at hand.
Rhima involves a ruling on a motion for summary judgment that was heard by the trial court on June 28, 1990. 829 S.W.2d at 913. The court sent an August 7, 1990 letter containing its decision to grant the defendant‘s motion for summary judgment. Id. It appears that “neither a docket entry nor memorandum of judgment was made at the time.” Id. On August 13, 1990, the plaintiff attempted to amend his petition without leave of court. Id. The trial court struck the amended petition, and that ruling was appealed. Id. The court found that the trial court did not abuse its discretion by striking the pleading because leave was not obtained to amend it
Bizzle relies on cases that apply a filing requirement for a written rendition of judgment. “A trial court‘s letter to the parties setting out its findings and requesting counsel to prepare a judgment has been held to be a memorandum that can serve as the rendition of judgment if it is filed with the clerk.” Robert v. Wells Fargo Bank, N.A., 406 S.W.3d 702, 705 (Tex. App.—El Paso 2013, no pet.); see Abarca v. Roadstar Corp. of Am., 647 S.W.2d 327, 327–28 (Tex. App.—Corpus Christi 1982, no writ).8 It is
Bizzle also argues that the October 4, 2019 email is not a full and complete judgment that reflects a present intent to render judgment. We agree. The facts and the issues in the present case are analogous to Ex Parte Gnesoulis, 525 S.W.2d 205, 207–08 (Tex. App.—Houston [14th Dist.] 1975, orig. proceeding). In this family law case, the court found that an unfiled letter containing rulings and signed by the court did not, as a matter of law, constitute a rendition of judgment in the case. Id. The court first found that the letter was not a rendition because although it was signed by the judge, it was not “delivered to the clerk for filing, signifying to the clerk in his official capacity and for his official guidance the sentence of law pronounced by the judge.” Id. at 209; see Dibrell, 450 S.W.2d at 56. The court‘s letter in Ex parte Gnesoulis stated, “I have concluded that Judgment should be entered in the above cause as follows . . . .” 525 S.W.2d at 207. Thereafter, the court set forth twelve specific paragraphs containing rulings on custody, property issues, and costs. Id. at 207–08. The court then went further than the court in the present case to say that if the parties
[I]t is obvious from the very general terms of the provisions . . . that the trial judge intended this letter to be no more than a guideline upon which the attorneys for both parties were to draw up and submit their proposed judgments. In spite of the fact that the trial judge indicated that he would not hear arguments about the substance of the judgment until the entrance of a final judgment and motions for new trial filed subsequent thereto, the judge left a great deal of room for refinement and definition of terms of the judgment as proposed in the letter. It is the useful prerogative of the trial judge to communicate, both orally and in writing, with the attorneys of the parties in crystallizing the provisions of a judgment prior to rendition.
In the present case, the email sent by the trial judge contained ten brief rulings that did not encompass a single page. Further, the court explicitly left open the issue of whether “I have missed something . . . .” and invited the attorneys to send an email to express what remained unaddressed. The court‘s email allowed for the possibility of further rulings and clarifications. It did not express a present intent to render a full, final, and complete judgment at that point in time. See Gamboa, 383 S.W.3d at 270; Joyner, 196 S.W.3d at 886.
A final decree was not presented to the court until after Baker died. The decree presented was fourteen pages long. One must only look at the decree to determine that it contains numerous provisions not addressed in the email. One such example is the section dealing with the treatment and allocation of community income
The decree itself also raises concerns. Throughout the decree there are provisions that state “the parties agree.” There is nothing in the record to support the proposition that the parties ever agreed to any provision in this decree and certainly none that there was an agreement at the time the decree was signed, when one of the parties had been deceased for several weeks. At the hearing on the motion to enter filed by Baker, her counsel imparted the only information about the efforts to obtain an agreement on the decree when he stated that once a draft of the decree was prepared “[counsel for Bizzle] inter --- redlined it, and I was scheduled to meet with my client and she died.” It seems clear from these facts that there was never an agreement, yet the decree repeatedly recites that “the parties agree,” “the parties understand,” and “the parties acknowledge.” Finally, the decree the trial court signed contains the following:
Petitioner and Respondent each acknowledge that before signing this Final Decree of Divorce they have read this Final Decree of Divorce fully and completely, have had the opportunity to ask any question regarding the same, and fully understand that the contents of this Final Decree of Divorce constitute a full and complete resolution of this case. Petitioner and Respondent acknowledge that they have voluntarily affixed their signatures to this Final Decree of Divorce, believing this agreement to be a just and right division of the marital debt and assets. . . .
The decree did not bear the signature of either party or their attorneys.
Having found that the September 17, 2019 oral pronouncement was not a rendition of judgment of all issues in the case, we further find that the October 4, 2019 email was not a full, complete, and final rendition of judgment either standing alone or in combination with the prior oral pronouncement. The parties’ marriage was therefore terminated by Baker‘s death. The final decree in the case is void for lack of subject matter jurisdiction, and we sustain Bizzle‘s first issue. We need not address Bizzle‘s remaining issues. See
III. CONCLUSION
Having sustained Bizzle‘s first issue, we reverse the judgment of the trial court and render judgment dismissing the case as moot. See
/s/ Lee Gabriel
Lee Gabriel
Justice