Opinion issued March 14, 2017
In The
Court of Appeals
For The
First District of Texas
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NO. 01-16-00251-CV
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MIGUEL ZARAGOZA FUENTES, ET AL., Appellants
V.
EVANGELINA LOPEZ GUZMAN ZARAGOZA, Appellee
On Appeal from the 245th District Court
Harris County, Texas
Trial Court Case No. 2014-30215
MEMORANDUM ORDER
In this order, we determine whether the intervenors to a divorce proceeding
have standing to appeal the final judgment. Evangelina Lopez Guzman Zaragoza has
moved to dismiss the appeals brought by Dade Aviation, Inc., Abbington Marine,
Inc., Ezar Management, LLC, Ezar Properties, L.P., Eagle Ridge Properties, LLC,
Elsa Esther Anchondo Carrillo, Ernesto Carrillo, and Texas LPG Storage Company.
Evangelina contends that these parties must be dismissed from the appeal for lack of
standing because their interventions in the trial court were untimely. Because the
intervenors filed their pleas in intervention before the trial court signed the final
judgment, the pleas were not untimely. We therefore deny the motion.
BACKGROUND
Evangelina filed for divorce in May 2014 against Miguel Zaragoza Fuentes.
Evangelina’s petition named Miguel and each of the intervenors as parties, with the
exception of Eagle Ridge Properties. Beginning in February 2015 and continuing
through October 2015, Evangelina non-suited the intervenors initially named in her
petition.
Approximately a week before trial, Evangelina supplemented her amended
petition, again naming Dade Aviation, Abbingdon Marine, Ezar Managment, Ezar
Properties, and Esther Carrillo as co-respondents. The October 26 supplement did
not name Ernesto Carrillo and Texas LPG Storage Company.
At a pre-trial conference two days before trial, intervenors’ counsel objected
that Evangelina’s supplemental petition sought affirmative relief against them.
Evangelina confirmed that she would not seek affirmative relief from the intervenors
and again nonsuited the intervenors on November 3, 2015.
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The case proceeded to trial the following day, November 4, and continued
through November 5. Having been nonsuited, the intervenors did not appear at trial.
On November 5, at the conclusion of the evidence, the trial court stated that, subject
to the later submission of attorney’s fees, it was “going to grant a divorce” in favor
of Evangelina; it orally announced that it would accept Evangelina’s proposed
property division:
Therefore, based upon the pleadings on file and testimony
presented today, subject to the submission of your attorney’s fees
and all of that, the Court’s going to grant a divorce . . . . The
Court will accept and make as its order the proposed division as
set forth in the record, as the Court’s just and right division under
the pleadings and the evidence presented.
On November 19 and December 10, the intervenors filed petitions to intervene
in the case, claiming that property they owned was among the assets to be awarded
as marital property in the divorce. Eagle Ridge, which was never previously named
as a party, also intervened, contending that the proposed division purported to divide
property owned by Eagle Ridge.
On December 21, 2015, the trial court signed its Final Decree of Divorce.
Miguel and the intervenors have filed separate appeals from the decree.
DISCUSSION
Evangelina requests that we dismiss the intervenors from the appeal because,
she contends, they lack standing to appeal. Evangelina claims the intervenors lack
standing because they were not parties to the underlying case, and their petitions to
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intervene were filed too late. See Tex. Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31, 36
(Tex. 2008) (petition in intervention is timely if filed before signing and rendition of
final judgment). Intervenors’ petitions, however, were filed before the trial court
issued its written final decree on December 21, 2015, and thus appear to be timely
filed under Ledbetter. See id.
Evangelina responds that the final decree is not determinative because the trial
court orally pronounced judgment at the close of trial on November 5 and this oral
rendition constituted the final judgment. Thus, she argues, the petitions to intervene
were not timely filed because the intervenors did not file them until after the oral
pronouncement. As support for her position that the trial court’s oral pronouncement
is determinative, Evangelina relies on State v. Naylor, 466 S.W.3d 783 (Tex. 2015).
The trial court in Naylor orally announced that the “divorce is granted
pursuant to the agreement [the parties had] recited into the record” and stated that it
“is intended to dispose of all economic issues and liabilities as between the parties
whether they [are] divorced or not.” Id. at 787, 789. On appeal, the Texas Supreme
Court determined that the State’s intervention in the case filed after the trial court
orally rendered its judgment on the record was untimely. Id. at 787–89. The Supreme
Court held that, because of the trial court’s clear statement that it was disposing of
all issues immediately, the oral pronouncement constituted the rendition of
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judgment, and the signing of the later written judgment was purely a ministerial act.
Id. at 789.
Unlike the judgment described in Naylor, the final order in this case was not
a ministerial act. Rather, the trial court’s November 5 oral pronouncement was
conditional and “subject to the submission of [] attorney’s fees and all that . . . .” The
trial court’s statement that it was “going to grant the divorce” subject to the
submission of attorney’s fees indicated an intent to issue a future judgment. See
James v. Hubbard, 21 S.W.3d 558, 559 (Tex. App.—San Antonio 2000, no pet.)
(“We hold that a judge does not render judgment when he says, ‘I am going to grant
the divorce in this case.’”); see also Inwood Forest Comm. Improvement Ass’n v.
Arce, 485 S.W.3d 65, 71 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (trial
judge’s statement that she was “going to grant the motions to dismiss” indicated
intent to rule in future); In re M.G.F., No. 02–07–241–CV, 2008 WL 4052992, at *3
(Tex. App.—Fort Worth 2008, no pet.) (statements that “the Court will approve the
agreement . . . , and I will sign a written order to that effect” indicated intent to render
judgment in future). A trial court’s intention to render judgment in the future cannot
be a present rendition of judgment. S & A Rest. Corp. v. Leal, 892 S.W.2d 855, 857–
58 (Tex. 1995) (citing Reese v. Piperi, 534 S.W.2d 329, 330 (Tex. 1976)).
Accordingly, we hold that the oral pronouncement was conditional and not
final; it failed to dispose of all pending parties and claims in the case. See Lehmann
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v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). (“A judgment is final for
purposes of appeal if it disposes of all pending parties and claims in the record,
except as necessary to carry out the decree.”). The outstanding claim for attorney’s
fees prevented the judgment from becoming final. See Farm Bureau Cty. Mut. Ins.
Co. v. Rogers, 455 S.W.3d 161, 163–64 (Tex. 2015); McNally v. Guevara, 52
S.W.3d 195, 196 (Tex. 2001); see also In re K.M.B., 148 S.W.3d 618, 620–21 (Tex.
App.—Houston [14th Dist.] 2004, no pet.) (order’s failure to address attorney’s fees
precluded it from being final judgment).
Evangelina contends that an outstanding claim for attorney’s fees should not
open the window to intervention, relying on the United States Supreme Court’s
decision in Budinich v. Becton Dickinson & Co., 486 U.S. 196, 200 (1988) (holding
that federal district court’s decision on merits leaving request for attorney’s fees
unresolved was final decision for purposes of appeal under 28 U.S.C. § 1291).
Budinich, however, applied federal law in determining finality under a federal
statute, whereas finality in this case is governed by state law. Accordingly, we follow
the Texas Supreme Court’s holdings that a judgment is not final if it fails to dispose
of a claim for attorney’s fees. See Farm Bureau Cty. Mut. Ins. Co., 455 S.W.3d at
163–64; McNally, 52 S.W.3d at 196; see also Dullye v. Gume Transp. & Storage,
Inc., No. 04–16-00200–CV, 2016 WL 3181396, at *1 (Tex. App.—San Antonio
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June 8, 2016, no pet.) (“[I]n Texas courts, unlike federal courts, a judgment is not
final if it fails to dispose of a party’s claim for attorney’s fees.”).
CONCLUSION
Because the intervenors joined the lawsuit before the judgment was final in
the trial court, we deny Evangelina’s motion to dismiss the intervenors’ appeals for
lack of standing.
It is so ordered.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Higley and Bland.
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