      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-08-00222-CV



                                  Robert Fernander, Appellant

                                                 v.

                                 Monique Fernander, Appellee


            FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY
       NO. C-1-CV-07-00-2807, HONORABLE J. DAVID PHILLIPS, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Robert Fernander filed a notice of a restricted appeal complaining of the

final summary judgment signed by the county court at law in favor of appellee, his ex-wife Monique

Fernander, in a suit she brought seeking indemnification from appellant for attorney’s fees and other

expenses she alleged she incurred as a result of his failure to discharge a judgment he owed to his

previous wife, Kristi Fernander. Appellant complains that the county court lacked jurisdiction over

the proceeding and that the evidence was insufficient to support the court’s award. We reverse the

trial court’s summary judgment and remand the cause for further proceedings.


                                       Factual Background

               The parties were married from December 2000 until October 2006. Before his

marriage to appellee, appellant was married to Kristi, who obtained a child-support judgment

against appellant while appellant and appellee were still married. The parties were divorced on
October 16, 2006, when the district court signed an agreed divorce decree. Appellee was awarded

the parties’ house in the divorce decree.1 The decree recited that the parties had warranted that they

had no other debts, obligations, or other liabilities not already disclosed and provided that “if any

claim, action, or proceeding is hereafter initiated seeking to hold the other party liable for any

liability, act, or omission of the party, that party is ORDERED, at his or her sole expense, to defend

the other party against any such claim . . . and will indemnify . . . the other party from all damages

resulting therefrom.” The parties were required to provide each other with prompt written notice of

any litigation that might provide a basis for indemnification under the decree.

               About six months later, appellee filed a petition in the county court, complaining that

appellant had never discharged Kristi’s judgment against him, as ordered by the divorce decree.

Appellee asserted that when she attempted to sell the house she had been awarded in the divorce,

Kristi’s judgment resulted in a cloud on appellee’s title. Appellee also alleged that she was named

as a defendant in a turnover application filed by Kristi. Appellee complained that to clear her title,

she was forced to file a declaratory judgment against Kristi, an action in which appellee won

summary judgment, and to defend against Kristi’s turnover application, eventually reaching a

settlement under which Kristi agreed that the property was appellee’s sole property and that Kristi’s

judgment was appellant’s sole liability. Appellee alleged that because of the cloud on the title, the

sale of the house was delayed and that the house ultimately sold for $11,000 less than the original

offer. Appellee sought attorney’s fees incurred in her declaratory judgment action, defending Kristi’s

turnover proceeding, and bringing the indemnification suit, as well as the difference in value for the


       1
         Although appellee was apparently awarded the house in the divorce, in his pro se answer,
appellant stated that he bought the house in May 2000, before the parties were married, which would
make the house his separate property. This fact was not established by any evidence, however.

                                                  2
house’s sale and costs she incurred when the sale was delayed. Appellant filed a pro se answer,

alleging appellee obtained the house in the divorce through fraud.

               Appellee filed a motion for summary judgment, attaching her own affidavit setting

out the facts surrounding this case; a partial copy of the parties’ divorce decree; the order granting

partial summary judgment in appellee’s favor in her suit for declaratory relief against Kristi; the

settlement agreement between appellee and Kristi in which Kristi released any claims against the

property2; a listing of expenses appellee averred she had incurred in the several proceedings,

including the $11,000 difference between offered sales prices for the house, attorney’s fees in the

declaratory proceeding and the turnover application, court costs, and repairs and upkeep for the

house, for a total of $45,612.82; and her attorney’s affidavit, stating that appellee had incurred

$1,500 in attorney’s fees in the indemnification proceeding. Appellant did not file a response to

appellee’s motion for summary judgment, and the county court at law, after a hearing, granted

judgment in appellee’s favor, awarding her the full $45,612.82 she sought. About four months after

the county court signed the final summary judgment, appellant filed his notice of restricted appeal.


                                             Discussion

               In a restricted appeal, the complaining party must show that he was a party to the

underlying lawsuit who did not participate in the hearing resulting in the judgment under attack and


       2
           In the order granting appellee partial summary judgment in her declaratory judgment suit
against Kristi, the court ordered that Kristi should pay appellee’s costs and her reasonable and
necessary attorney’s fees, “the amount of such fees to be determined by agreement of the parties or
at trial.” Appellant points to this provision to argue that appellee was attempting to obtain a double-
recovery of attorney’s fees. However, under appellee’s and Kristi’s settlement agreement, appellee
released Kristi from “any and all claims, demands, damages, costs, losses, expenses,” or other
obligations that she had against Kristi.

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did not timely file post-judgment motions or requests for findings of fact and conclusions of law and

that error is apparent on the face of the record. Tex. R. App. P. 30; Insurance Co. v. LeJeune,

297 S.W.3d 254, 255 (Tex. 2009). In this case, appellant filed an answer to appellee’s petition but

did not respond to her motion for summary judgment, appear at the hearing, or file post-judgment

motions or requests, and his notice of appeal was filed within six months of the granting of summary

judgment. The only issue is whether error is apparent on the face of the record. Legally or factually

insufficient evidence amounts to error on the face of the record and is reviewable in a restricted

appeal. See Norman Commc’ns v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997); Whitaker

v. Rose, 218 S.W.3d 216, 220 (Tex. App.—Houston [14th Dist.] 2007, no pet.). Further, because

appellant filed an answer, although he did not respond to appellee’s motion for summary judgment,

appellee was required to prove her entire case, including appellant’s liability and her damages. See

Whitaker, 218 S.W.3d at 220.

               Appellant argues that there is error on the face of the record because (1) the county

court at law lacked jurisdiction over appellee’s suit for indemnification; (2) the court lacked the

authority to award to appellee any sums beyond the property awarded to her in the divorce decree,

including the attorney’s fees she incurred in defending against Kristi’s turnover proceeding; and

(3) the evidence supporting the trial court’s award of damages and attorney’s fees is legally

insufficient. We hold that the county court properly exercised jurisdiction over the proceeding but

that the evidence was legally insufficient to support the granting of summary judgment.




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                                              Jurisdiction

               In his first issue, appellant asserts that the county court lacked jurisdiction over

appellee’s suit for indemnification. He argues that the family code barred the county court from

amending or changing the property division made in the divorce decree signed in 2006 by the district

court. He insists that the county court’s judgment awarding appellee damages and attorney’s fees

incurred when appellant failed to comply with the divorce decree “blatantly changed the property

division.” We disagree.

               The divorce decree divided the couple’s property between the parties. The county

court’s judgment in this proceeding did not change that division. It merely awarded damages and

fees incurred by appellee as a result of appellant’s failure to comply with the decree and either

discharge Kristi’s judgment or indemnify appellee for having to defend against Kristi’s attempt to

obtain satisfaction of her judgment through the property awarded to appellee. Appellee’s suit was

not seeking to clarify or modify the decree. The county court properly exercised jurisdiction over

appellee’s suit. See Solares v. Solares, 232 S.W.3d 873, 878 (Tex. App.—Dallas 2007, no pet.) (ex-

wife’s suit for breach of warranty deed and fraud related to ownership of property awarded to her

in divorce was suit for common law fraud and conversion, not suit to enforce or clarify decree). We

overrule appellant’s first issue on appeal.


                                    Sufficiency of the Evidence

               In his second issue, appellant complains that the evidence was insufficient to support

the county court’s judgment, raising several arguments related to appellee’s evidence. In one of his

arguments, appellant complains that the evidence is legally insufficient because appellee did not


                                                   5
provide evidence of a valid, enforceable agreement; appellant’s breach of that agreement; or

causation between any breach by appellant and appellee’s alleged damages. Appellee attached to

her motion for summary judgment two pages of the parties’ divorce decree. The attached excerpt

refers to other parts of the decree, which appellee did not attach. Because the summary judgment

evidence does not “clearly reflect the terms of [appellant’s] obligation,” appellant argues, the

evidence was legally insufficient to support the trial court’s judgment. We agree.

               The evidence attached to appellee’s motion for summary judgment establishes that

Kristi obtained her child-support judgment against appellant in August 2003, while appellant and

appellee were still married; the record does not establish when Kristi abstracted her judgment, when

she filed her turnover application, or whether the turnover application was filed against appellant and

appellee together or solely against appellee. Appellee’s affidavit states that she was awarded the

parties’ house in the divorce decree, although she did not attach that portion of the decree. Appellee

averred that she was unable to sell the house in February 2007 due to the cloud on the title created

by Kristi’s abstracted judgment. The evidence also shows that appellant filed her suit for declaratory

judgment against Kristi after the parties’ divorce, obtaining partial summary judgment that Kristi’s

abstracted judgment did not attach to the property; and that she and Kristi signed a settlement

agreement in March 2007, in which Kristi agreed to nonsuit her application for turnover relief

against appellee and agreed that appellee had no liability under Kristi’s abstracted judgment.

               Appellant attached as summary judgment evidence two pages of the parties’ divorce

decree. The excerpt includes a paragraph titled, “Indemnification,” which recites that the parties

have represented that they have



                                                  6
       not incurred any debt, obligation, or other liability, other than those described in this
       Decree, on which the other party is or may be liable. It is therefore ORDERED and
       DECREED that if any claim, action, or proceeding is hereafter initiated seeking to
       hold the other party liable for any liability, act, or omission of the party, that party is
       ORDERED, at his or her sole expense, to defend the other party against any such
       claim or demand, whether or not well-founded, and will indemnity and hold harmless
       the other party from all damages resulting therefrom.


(Emphasis added.)      The paragraph preceding the indemnification paragraph also addresses

indemnification, stating that “any community liability not expressly assumed by a party under this

decree is to be paid by the party incurring the liability, and the party incurring the liability shall

indemnify and hold the other party and his or her property harmless from any failure to so discharge

the liability.” (Emphasis added.)

               We agree with appellant that, on the face of the record, we are unable to tell what

liabilities were described elsewhere in the decree, whether Kristi’s judgment against appellant was

addressed by the decree, or that the indemnification paragraph should apply to these facts.3 The

evidence put forth by appellee does not show (1) that her declaratory judgment action against Kristi

is one that would trigger the indemnification paragraph, which requires appellant’s indemnification

in a proceeding brought against appellee and after the date of the divorce decree; or (2) when

Kristi’s turnover application was filed and thus whether the indemnification paragraph should apply

to that proceeding. Nor is there evidence that the earlier indemnification provision related to a

party’s failure to discharge an unaddressed community liability should apply. Finally, there is no


       3
           In her amended petition, appellee states that appellant was required by the decree to pay
Kristi’s judgment and indemnify appellee from any liability she might incur as a result of his failure
to discharge the judgment. However, appellee’s motion for summary judgment and affidavit do not
mention any such provision in the decree.

                                                   7
evidence whether appellant’s liability to Kristi was in any way addressed in the decree or whether

his failure to satisfy that judgment triggered any indemnification requirement set out in the decree.

Thus, appellee has not established as a matter of law that appellant was required by the decree to

indemnify her for her costs related to contesting her liability for Kristi’s judgment or that her lost

profits related to the sale of the house should have been included in her claim for damages. See

Whitaker, 218 S.W.3d at 220 (plaintiff must establish liability and damages in post-answer default).

Thus, the evidence was legally insufficient to support the county court’s summary judgment.

                                             Conclusion

               Because the evidence did not establish as a matter of law that appellant was liable for

appellee’s damages related to Kristi’s judgment against him, the county court erred in granting

summary judgment in appellee’s favor. Due to our resolution of this portion of appellant’s second

issue on appeal, we need not address his complaints related to whether he was required by the decree

to indemnify appellee for lost profits or expenses related to the property, the trial court’s attorney’s

fee award or the sufficiency of appellee’s affidavit or the evidence supporting her claim of damages.

We reverse the judgment and remand the cause to the county court for further proceedings.



                                               __________________________________________

                                               David Puryear, Justice

Before Chief Justice Jones, Justices Puryear and Pemberton

Reversed and Remanded

Filed: May 7, 2010



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