Patricia J. Sherer v. James Ray Sherer and Gloria Jean Sherer (f/K/A Gloria Jean Roberson), Individually and James Ray Sherer as Power-Of-Attorney for Bertha M. Sherer

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana

_________________________

No. 06-12-00023-CV
______________________________

PATRICIA J. SHERER, Appellant

V.

JAMES RAY SHERER AND GLORIA JEAN SHERER
(F/K/A GLORIA JEAN ROBERSON), INDIVIDUALLY AND
JAMES RAY SHERER AS POWER-OF-ATTORNEY
FOR BERTHA M. SHERER, Appellees

On Appeal from the 336th Judicial District Court
Fannin County, Texas
Trial Court No. 36332

Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Justice Carter
 OPINION

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, 1 $72,891.21 in damages, attorney’s fees in the amount of $18,531.36, and costs in the

amount of $4,891.25.

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, 2

Bertha’s teacher retirement checks were deposited into a bank account under the name of Ray

Sherer at the First National Bank of Bonham. In addition, Bertha provided Ray with investment

money which he deposited in a Merrill Lynch account. From the beginning, the investment

money was commingled with Ray’s property. 3

1
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).
2
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.
3
Testimony at trial established that Ray frequently acknowledged that he was looking after Bertha’s money.

2
 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. 4 The

Trust also designated Ray and Patricia as co-trustees and, upon the death of Ray in 1999, Patricia

become the sole trustee of the Trust. 5

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. 6 Bertha

refused to sign the release. A little more than four years later, Bertha, James, and Gloria brought

suit against Patricia complaining that the Trust contained separate property of Ray, that Patricia

had been selling real estate owned by the Trust, and that Patricia was converting the assets of the

Trust into individual ownership to avoid the distribution clause of the Trust. James and Gloria

sought Patricia’s removal as trustee, and Bertha sought recovery of money owned by Bertha held

by the Trust.

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

4
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.
5
We note that the First Judgment, discussed below, approves of Patricia serving as trustee. We note this finding has
not been challenged on appeal.
6
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.

3
converted any asset belonging to Bertha, 7 ordered Patricia to make an annual accounting of the

Trust to James and Gloria pursuant to the Texas Trust Code, and additionally made the following

orders:

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.

....

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

7
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, 843 S.W.2d 127, 131 n.7 (Tex.
App.—Texarkana 1992, writ denied) (refusing to consider findings rendered in judgment); accord Frommer v.
Frommer, 981 S.W.2d 811, 814 (Tex. App.—Houston [1st Dist.] 1998, pet. dism’d).

4
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 December 31,

1998, the two commingled accounts had a combined balance of $78,375.00. James and Gloria

sent, on June 14, 2006, a demand letter for $145,935.00. 8

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
8
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.

5
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. Mohundro, though, testified that assuming Bertha did not

accumulate any savings from her retirement and social security checks that were deposited into

the bank account 9 and assuming Bertha paid rent to Ray, 10 the $11,825.00 would have been

depleted.

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. 11 Alternatively, Patricia claims the trial court erred in granting relief

9
Mohundro testified tht 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.
10
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.
11
Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 863 (Tex. 2010) (“A judgment is void . . . when it is apparent that
the court rendering judgment had no jurisdiction of the parties or property, no jurisdiction of the subject matter, no
jurisdiction to enter the particular judgment, or no capacity to act.”).

6
that exceeded the supplemental ancillary relief available under the Texas Declaratory Judgment

Act. 12

The majority of Patricia’s brief assumes that the First Judgment was a final judgment.

When discussing the application of the statute of limitations, Patricia provides an alternative

argument that the First Judgment was not final. According to James and Gloria, the proceeding

being appealed was an enforcement action. 13 Alternatively, James and Gloria argue that all of

the issues disposed of in the First Judgment became final, but the issues not decided in the First

Judgment did not become final.

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, 14 there can only be one final

judgment in a case. TEX. R. CIV. P. 301 (“Only one final judgment shall be rendered in any

cause except where it is otherwise specially provided by law.”); see Lehmann, 39 S.W.3d at 192;

12
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.
13
James and Gloria argue that this Court’s opinion in In re Sherer, No. 06-11-00045-CV, 2011 Tex. App. LEXIS
4112 (Tex. App.—Texarkana May 26, 2011, orig. proceeding) (mem. op.) held this action to be an enforcement
action and that this conclusion has become the “law of the case.” Under the law of the case doctrine, a court of
appeals is ordinarily bound by its initial decision if there is a subsequent appeal in the same case. Briscoe v.
Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003). The law of the case doctrine only applies to matters that are
fully litigated and determined in an appeal. See id. A mandamus, though, is not an appeal. The denial of
mandamus relief is not an adjudication on the merits and does not prevent reconsideration of the matter in a
subsequent appeal. Chambers v. O’Quinn, 242 S.W.3d 30, 32 (Tex. 2007). Further, we did not express any opinion
as to the finality of the First Judgment in our denial of mandamus relief and the Second Judgment had yet to be
rendered. The law of the case doctrine does not preclude us from reconsidering whether this case is an enforcement
action.
14
Exceptions have been recognized for probate and receiver cases. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192
n.1 (Tex. 2001); Lavender v. Lavender, 291 S.W.3d 19, 21 (Tex. App.—Texarkana 2009, no pet.) (except for
probate and receiver cases, only one final judgment may be rendered). We note that partition suits have two final
judgments. See Griffin v. Wolfe, 610 S.W.2d 466 (Tex. 1980).

7
Cavazos v. Hancock, 686 S.W.2d 284, 286 (Tex. App.—Amarillo 1985, no writ); see also Glunz

v. Hernandez, 908 S.W.2d 253, 257 (Tex. App.—San Antonio 1995, writ denied). An

interlocutory judgment becomes final when it merges into the final judgment disposing of the

entire case. 15 Thus, the issue before this Court is whether the First Judgment was final as to all

issues or whether the First Judgment became final only after the trial court rendered the Second

Judgment.

We note that the First Judgment was titled “Final Declaratory Judgment” and contained a
16
“Mother Hubbard” clause. At one time, the Texas Supreme Court took the position that the

inclusion of a Mother Hubbard clause could cause an otherwise interlocutory judgment to be

final. Mafrige v. Ross, 866 S.W.2d 590, 592 (Tex. 1993), overruled in part by Lehmann, 39

S.W.3d at 204. The Texas Supreme Court, however, rejected this approach a decade ago. See

Lehmann, 39 S.W.3d at 192–93.

A final judgment 17 is one that disposes of all parties and all issues in a lawsuit. 18 Id. at

200; Schlipf v. Exxon Corp., 644 S.W.2d 453, 454 (Tex. 1982) (per curiam). “Finality ‘must be

15
See Webb v. Jorns, 488 S.W.2d 407, 409 (Tex. 1972); see also Hyundai Motor Co. v. Alvarado, 892 S.W.2d 853,
855 (Tex. 1995) (per curiam) (partial summary judgment becomes final upon disposition of other issues in case).
16
As used in this context, a Mother Hubbard clause recites that all relief requested and not granted is denied.
17
We note that the term “final judgment” may have different meanings in different contexts. Street v. Honorable
Second Court of Appeals, 756 S.W.2d 299, 301 (Tex. 1988). Under the facts of this case, the term refers to whether
the judgment is final for purposes of appeal.
18
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, 193 S.W.3d 181, 187 (Tex. App.—Houston [1st Dist.] 2006, orig.
proceeding); see also M.O. Dental Lab. v. Rape, 139 S.W.3d 671, 674–75 (Tex. 2004) (per curiam); In re Miranda,

8
resolved by a determination of the intention of the court as gathered from the language of the

decree and the record as a whole, aided on occasion by the conduct of the parties.’” Lehmann,

39 S.W.3d at 203 (quoting 5 Ray W. McDonald, Texas Civil Practice § 27:4[a], at 7 (John S.

Covell, ed., 1992 ed.)). The Texas Supreme Court has explained:

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, 870

S.W.2d 18, 20 (Tex. 1994); see Hinde v. Hinde, 701 S.W.2d 637, 639 (Tex. 1985) (per curiam);

Ziemian v. TX Arlington Oaks Apts., Ltd., 233 S.W.3d 548, 553 (Tex. App.—Dallas 2007, pet.

dism’d). Any judgment that expressly reserves an issue for later adjudication is interlocutory.

Wilcox v. St. Mary’s Univ. of San Antonio, Inc., 501 S.W.2d 875, 876 (Tex. 1973); Cowan v.

Moreno, 903 S.W.2d 119, 124 (Tex. App.—Austin 1995, no writ).

142 S.W.3d 354, 357 (Tex. App.—El Paso 2004, orig. proceeding). However, this exception does not apply in this
case.

9
 Patricia argues that the judgment became final when Bertha failed to object to the

accounting within thirty days. 19 As noted above, the First Judgment provides, “Patricia J. Sherer

is to make a full and complete accounting on or before December 1, 2005 . . . . In the event, the

Plaintiffs do not approve the accounting . . . . the matter will be submitted to the Court for the

Court’s approval and/or determination and direction.” We disagree that the judgment became

final for two reasons: (1) a judgment cannot condition finality on uncertain events and (2) even

if Bertha’s alleged failure to object approved the accounting, the amount of the damages was still

unresolved.

The Texas Supreme Court has instructed that “a judgment cannot condition recovery on

uncertain events, or base its validity on what the parties might or might not do post-judgment.”

Hinde, 701 S.W.2d at 639; Griffin v. Long, No. 12-09-00260-CV, 2011 Tex. App. LEXIS 8910

(Tex. App.—Tyler Nov. 9, 2011, no pet.) (mem. op.). A final judgment must be final under all

circumstances. A judgment that is only final under some circumstances but not all circumstances

is not a final judgment.

In Hinde, the trial court determined that a life insurance policy was improperly cancelled

and awarded the plaintiff $49,547.11. Hinde, 701 S.W.2d at 639. The trial court, though,

alternatively provided that if the defendant reinstated the life insurance policy, the award would

be reduced by $25,000.00 to $24,547.11. The Texas Supreme Court held that this judgment was

final because “it neither conditions nor clouds with uncertainty the rights and obligations it

19
Patricia has not argued accord and satisfaction. There is no evidence of any settlement or similar agreement in the
record.

10
establishes.” Id. Although the amount of compensation differed depending on the

circumstances, the amount was certain under all possible circumstances.

“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, 691 S.W.2d 839, 841 (Tex. App.—Fort

Worth 1985, no writ). In Tully, a judgment that granted relief assuming a pregnant woman

would give birth to a child was not final because there were “multiple contingencies that could

occur that would prevent the judgment from becoming operative.” Tully v. Tully, 595 S.W.2d

887, 889 (Tex. Civ. App.—Austin 1980, no writ) (“Although it was certain on December 13,

1978, that appellant was pregnant, it was surely uncertain and indefinite when, and if, she would

be delivered of child.”). The First District has held that a judgment terminating parental rights

but awarding visitation dependent upon the agreement of the adoptive parents and a

determination by Child Protective Services that the visitation would be in the child’s best interest

was not a final judgment. In re R.J.A.H., 101 S.W.3d 762, 764 (Tex. App.—Houston [1st Dist.]

2003, no pet.). In this case, because whether Bertha would object to the accounting was an

uncertain event, the First Judgment was not final.

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., 717

S.W.2d 425, 426 (Tex. App.—Tyler 1986, no writ). The Tyler Court held, “A judgment is not

11
final if the damages awarded are unliquidated, conditional or contingent upon the outcome of

another trial.” Id.

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 did not turn over any

additional funds to Bertha. Assuming Bertha failed to timely object to the accounting, the

judgment was still not final. Further judicial proceedings were necessary to resolve the amount

of the damages.

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. Koger Properties,

Inc., 668 S.W.2d 719, 722 (Tex. App.—Houston [1st Dist.] 1983, no writ); see Hargrove v. Ins.

Inv. Corp., 176 S.W.2d 744, 747 (Tex. 1944); Pillitteri v. Brown, 165 S.W.3d 715, 718 (Tex.

App.—Dallas 2004, no pet.) (judgment was final despite later determination of attorney’s fees

incurred in execution and collection of judgment). But see Myers v. Ribble, 796 S.W.2d 222,

12
224 (Tex. App.—Dallas 1990, no writ) (amount of attorneys’ fees and costs incurred in

connection with primary dispute is not issue incidental to execution of judgment). Thus, the

question is whether the trial court’s act in ordering an accounting to determine the amount of

Bertha’s investments reserves an issue for later adjudication.

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, 338 S.W.2d 945 (1960).

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, 639

S.W.2d 459, 460 (Tex. 1982) (“Any award of damages based on the accounting necessarily had

to occur at a subsequent time.”). The Texas Supreme Court concluded the partial summary

judgment only resolved ownership in the leasehold estate and the amount of damages was left to

be determined based on the subsequent accounting. Id.

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, 338 S.W.2d at 948. Similar to Hunt

Oil, we believe the accounting in this case prevented the First Judgment from being a final

13
judgment. By providing for a judicial determination, the First Judgment recognized that the

accounting would be more than a ministerial act. The First Judgment failed to definitively settle

the rights of the parties; specifically, it reserved the issue of the amount of the damages for later

determination. The evidence at the hearing demonstrates that the amount of the investment was

contested, and the expert testimony on this issue differed substantially. Patricia presented

evidence that Bertha’s expenses had completely offset the investment, while James and Gloria

presented evidence supporting the trial court’s $72,891.21 award. The accounting and

subsequent determination of the amount of Bertha’s investments were significant judicial

decisions and were not ministerial. This accounting, similar to the one at issue in Hunt Oil, was

not a mere incidental issue to the judgment’s execution.

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

14
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 Plaintiff’s 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, 20 including the following:

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

20
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.”).

15
by failing to appeal the First Judgment. 21 At oral argument, Bertha argued that the lawsuit was

brought within the four year statute of limitations.

In the Appellees’ original pleadings, it was alleged that Patricia had retained monies

lawfully owned by Bertha and had directly taken money from such funds. The Appellees prayed

that the court impose a constructive trust on any of Bertha’s funds held in such a manner.

Further the Appellees urged that Patricia’s actions amounted to a conversion of Bertha’s funds to

her own use. In the First Judgment, the trial court found that there had been no conversion of the

funds, but did impose a constructive trust on any funds of Bertha held by Patricia and ordered

that such funds be restored to Bertha. In so doing, the trial court implicitly found that Patricia

had been unjustly enriched with Bertha’s funds. 22

21
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.
22
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, 925 S.W.2d 92, 96 (Tex. App.—Texarkana 1996), aff’d, 965
S.W.2d 467 (Tex. 1998).

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 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, 516 S.W.2d

125, 131 (Tex. 1974) (concluding based on “the broad and flexible nature of the constructive

trust remedy” that it applies to unjust enrichment); In re Estate of Arrendell, 213 S.W.3d 496,

504 (Tex. App.—Texarkana 2006, no pet.). An underlying cause of action such as a breach of

fiduciary duty, conversion, or unjust enrichment is required. The constructive trust is merely the

remedy used to grant relief on the underlying cause of action. 23

Although Bertha only specifically pled conversion, the First Judgment made an implied

finding of unjust enrichment. 24 After the second trial, the appellees submitted proposed findings

of facts and conclusions of law which specifically stated that repayment of Bertha’s funds was

required “to prevent unjust enrichment.” Likewise, the trial court’s findings of fact and

conclusions of law signed after the rendition of the Second Judgment contain an explicit finding

of unjust enrichment. Although Patricia argued that the two-year statute of limitations applied at

trial, Patricia argues on appeal that the residual four-year statute of limitations should apply. The

Texas Supreme Court has held that the two-year statute of limitations applies to unjust

23
We note that Bertha was entitled to a choice of either a constructive trust or an equitable lien. See Meadows, 516
S.W.2d at 130.
24
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.

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enrichment. Elledge v. Friberg-Cooper Water Supply Corp., 240 S.W.3d 869, 871 (Tex. 2007);

see TEX. CIV. PRAC. & REM. CODE ANN. § 16.003 (West Supp. 2012).

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

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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.

Jack Carter
Justice

Date Submitted: November 8, 2012
Date Decided: January 4, 2013

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