Opinion issued March 14, 2017




                                    In The

                             Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                             NO. 01-16-00251-CV
                           ———————————
           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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