Brown v. Fullenweider

STOVER, Justice,

dissenting.

I respectfully dissent. As explained in the majority opinion, attorney Fullenweider filed a motion to enforce or, alternatively, to clarify the decree of divorce of Michael Brown and Deborah Brown. As the basis for filing a motion in an action in which the judgment had become final some thirteen months earlier, Fullenweider cited section 3.70 of the Texas Family Code, which allows a party seeking to enforce the property division in a decree of divorce to file such a motion even after the judgment has become final.2

The majority opinion correctly notes that the divorce decree ordered the parties to “divide their assets and liabilities as set out in the Agreement Incident to Divorce” and to “do all necessary acts to carry out the provisions of such Agreement.” The Agreement Incident to Divorce (“AID”) allocated specific “debts” to each party in the divorce action and specifically provided that Michael Brown would pay “[a]ll out*337standing attorney fees and fees for other professionals incurred by Michael G. Brown in connection with this lawsuit.” The substance of Fullenweider’s argument is that such provisions, in conjunction with section 3.70, made him a party to the divorce action and, therefore, gave him authority to bring the motion to enforce/clarify pursuant to the Texas Family Code. As an alternative, Fullenweider likewise pled in his motion to enforce/clarify a sworn account on a debt, as well as other alternative causes of action for breach of contract and quantum meruit. After the motion to enforce/clarify was severed from the divorce action and given a new cause number, Fullenweider filed a motion for summary judgment in which the sole ground was the sworn account action on the debt for fees incurred in the divorce action, including his attorney’s fees of $79,-258.35 and the $18,019.81 in other fees. Since the debt action was the sole ground in Fullenweider’s motion for summary judgment, it was the only ground on which the trial court could have granted the motion. See McConnell v. Southside Indep. Sch. Dist, 858 S.W.2d 337, 339-42 (Tex.1993). The summary judgment itself simply orders that Fullenweider recover such amounts from Brown.

The majority holds that an attorney is a party in a divorce action with respect to the issue of attorney’s fees and, therefore, is entitled to sue for his attorney’s fees in a motion to enforce/clarify. Based on the narrow circumstances of this case, I respectfully dissent to the majority opinion and would hold instead that attorney Ful-lenweider cannot use a motion to enforce/clarify as a vehicle to sue his own client for attorney’s fees in the divorce suit — the very action in which he is representing the client.

I agree with the majority’s statement that, generally speaking, an attorney is not a party in a divorce action. See Beach v. Beach, 912 S.W.2d 345, 348 (Tex.App.— Houston [14th Dist.] 1995, no writ); Martinez v. Martinez, 608 S.W.2d 719, 720 (Tex.Civ.App. — San Antonio 1980, no writ). However, I disagree with the majority’s conclusion that the exception outlined in John M. Gillis, P.C. v. Wilbur, 700 S.W.2d 734, 736 (Tex.App. — Dallas 1985, no writ), applies to the instant case. ' In Gillis, the Dallas court of appeals took the position that, with respect to the issue of attorney’s fees, an attorney representing a party in a divorce action is also considered a party in regard to collection of attorney’s fees. Even if that general principle were true, I would hold it has no application in this case.

The pertinent facts from Gillis are detailed below. Attorney Gillis represented Karen, the former wife of Craig Wilbur, in her divorce action against Craig. No attorney’s fees were requested in the petition for divorce. Ultimately, Craig and Karen entered into an agreed decree of divorce. Although the decree made no express reference to attorney’s fees, it did contain a provision requiring Craig and Karen to each pay “ ‘any and all debts, charges, liabilities and other obligations incurred by such respective party from and after April 12, 1983,’ the date the parties separated.” Id. at 735. A few days after the signing of the agreed divorce decree, attorney Gillis sent Craig, the opposing party, a demand letter for Karen’s fees in the divorce action3 and some time after that filed a separate “debt suit” against Craig. Ultimately, the trial court granted a summary judgment in favor of Craig on the ground of res judicata.

On appeal, Gillis contended he was not a party to the divorce suit and, therefore, was not required to make his claim for attorney’s fees against the opposing party in the divorce action itself. Citing other Texas cases, the Dallas court of appeals disagreed and held the parties’ attorneys, *338by virtue of their participation in the divorce action, were “bound by the divorce decree as if they had been parties to the suit.” Id. at 736 (quoting Roberts v. Roberts, 144 Tex. 603, 192 S.W.2d 774, 778 (1946)). The Gillis court concluded that “the issue of attorney’s fees to be recovered by one spouse, in her own behalf or on behalf of her attorney, from the other spouse is an integral part of the divorce action and must be brought in the divorce action.” Id. at 736 (emphasis added). Attorney’s fees are “one factor to be considered by the court in making an equitable division of the estate, considering the conditions and needs of the parties and all of the surrounding circumstances.” Id. In short, the Dallas court held the award of attorney’s fees is intertwined with all of the equities in the case; thus, the “issue of whether a party should be awarded attorney’s fees from the opposing spouse in a divorce action must be raised in the divorce action or else the issue is barred by res judicata.” Id. at 737 (emphasis added).

The facts of the instant case are distinguishable from those in Gillis. Here, attorney Fullenweider did not file a motion to enforce/clarify seeking attorney’s fees from the opposing party. To the contrary, he filed in the divorce action a motion to enforce/clarify in which he sought attorney’s fees from his own client. Such an action is proper in an independent suit on a debt or a sworn account action, but not, in my view, in the present context.

Accordingly, under the narrow circumstances of this case, I would hold that Fullenweider was not a party to the divorce suit for the purpose of suing his own client for attorney’s fees and, thus, had no standing to file the motion to enforce/clarify’-the decree some thirteen months after the divorce decree was signed. As a result, the trial court did not have jurisdiction to entertain Fullenweider’s motion, because its plenary power had already expired. See Tex.R. Civ. P. 329b(d). I would, therefore, sustain issue one and dismiss the suit.

. See Act of May 30, 1983, 68th Leg., R.S., ch. 424, § 2, sec. 3.70, 1983 Tex. Gen. Laws 2346, 2350 (current version at Tex. Fam.Code Ann. § 9.001 (Vernon 1998)).

. In light of the divorce decree’s provision that each party would pay his own debts and obligations and the silence of the opinion otherwise, we cannot say on what basis Gillis made a demand upon Craig for attorney’s fees.