Affirmed , Motion for Rule 45 Damages Granted, Memorandum Opinion of December 23, 2014 , Withdrawn, and Substitute Opinion filed January 22, 2015.

In The 

## Fourteenth Court of Appeals

NO. 14

- 13

- 00604

- CV

MARY RIGGINS , Appellant
V. RONALD E. HILL, LIND A C. HILL, WEST COLU MBIA PLAZA , LTD., AND LUCKY LIND Y DEVELOPMENT , Appellees

On Appeal from the 239th District Court Brazoria County, Texas Trial Court Cause No. 35931



### SUBSTITUTE O PINION 1
This appeal involves a challenge to a n order in which the trial court enforc ed

a judgment tha t was final by appeal. At issue is whether the trial court erred in determining that it lacked jurisdiction over post

- mandate motions to alter the

1 The memorandum opinion issued on December 23, 2014 , is withdrawn, and this opinion is issued in its place to address appellees’ motion for damages under Texas Rule of Appellate Procedure 45

.attorne y ’s fees awarded in the judgment , whether the trial court’s enforcement order was pro per , and whether damages under Texas Rule of Appellate Procedure 45 should be imposed against appellant’s counsel . We affirm the trial court’s judgment and grant appellee s’ motion for Rule 45 damages

.

I. F ACTUAL AND P ROCEDURAL B ACKGROUND Nearly a decade ago, a ppellant/plaintiff Mary Riggins filed suit against various parties, including appellees/defendants Ronald E. Hill, Linda C. Hill, West Columbia Plaza, Ltd., and Lucky Lind y Development (hereinafter collectively the
“West Columbia Parties ” ). Riggins asserted various claims against the West Columbia Parties, including that their failure to provide her with reasonable accommodations for her disability caused her to fall an d suffer injuries. A few years later, Riggins and the W est Columbia Parties en tered into a n agreement under Texas Rule of Civil Procedure 11 , in which they agreed to settl e Riggins’ s claims

. After the parties enter ed into th e Rule 11 agreement in May 2008 , but before the trial court rendered judgment based on it , Riggins informed the West Columbia Parties that she was withdrawing her consent to the settlement agreement . In response, t he West Columbia Parties filed a counterclaim seeking to enf orce the settlement agreement

. In t he following year , t he trial court granted the West Columbia Parties’
summary

- judgment motion and rendered judgment enforcing the settlement agreement and awarding the West Columbia Parties attorney’s fees (hereinafter the “Judgment”)

. In the J udgment , signed in February 2009 , the trial court awarded the West Columbia Parties $3,000 as “ attorney’s fees and expenses for the filing and hearing on [their summary

- judgment motion].” The trial court also awarde d
the West Columbia Parties $4,000 as additional attorney’s fees “if [Riggins] should appeal . . . to the Court of Appeals,” as well as $3,500 as additional attorney’s fees

2“if [Riggins] should appeal . . . to the Texas Supreme Court.” Riggins appealed the J udgment to this court (hereinafter the “First Appeal”). See Riggins v. Hill , No. 14

- 09

- 00495

- CV, 2011 WL 5248347, at *1 (Tex. App.

— Houston [14th Dist.] Nov. 3, 2011, pet.denied) (mem. op.). On appeal, this court sustained one of Riggins’s issues, modifi ed the Judgment to condition the award of appellate attorney’s fees on the West Columbia Parties’ success on appeal, and affirmed the Judgment as modified. See id . at *12. This court did not reverse any part of the Judgment or remand the case for further proceedings in the trial court.
See id

. Riggins then filed a petition for review in the Supreme Court of Texas

. See
id . at *1. The high court denied review , an d this court issued its mandate. See id

. In July 2012, Riggins filed a motion in the trial court requesting
disbursement of the funds in the registry of the court . In her motion, Riggins requested that the trial court order that only $3,000 of the funds be disbursed to counsel for the West Columbia Parties . In response, t he West Columbia Parties
filed a motion in which they requested that $10,500 plus interest be disbursed to
the ir counsel b ased on the attorney’s fees awarded to the West Columbia Parties in the Judgment. Later that year, Riggins filed a motion to transfer the case to the 239 th Judicial District Court. The West Columbia Parties did not oppose this motion,
and the case was transferred. 2 The parties engaged in post

- judgment discovery . In late 2012 and early 2013, Riggins filed a motion for sanctions against the West Columbia Parties, a motion for determination of attorney’s fees and for release of the money in the registry of the court, and a motion for attorne y’s fees (hereinafter collectively the “Post

- Mandate Motions ” )

. Riggins also filed a “ counterclaim ,”in which she purported to assert claims for breach of contract and intentional

2 The propriety of this transfer is not at issue in this appeal. 3infliction of emotional distress. In April 2013, t he trial court signed a n o rder enforcing the Judgment , as modified by this court, and ordering the court clerk to disburse $7,500 to counsel
for the West Columbia Parties. In its order, the trial court also found that it did not have jurisdiction over Riggins’ s Post

- Mandate Motions. In June 2013, Riggins perfected an appeal from this order , which we resolve today

. II. I SS UES AND A NALYSIS In six appellate issues, Riggins asserts various arguments in support of her
contention that the trial court erred in grant ing the West Columbia Parties awards
of attorney’s fees and in failing to grant her an award of attorney’s fees. Riggins

asserts , among other things, that the trial court erred in awarding the West Columbia Parties attorney’s fees because ( 1) the West Col umbia Parties were not prevailing part ies ; ( 2) attorney’s fees are not available for defendants in civil rights
and torts actions and because seeking to enforce a settlement agreement did not change the nature of the action; ( 3) the West Columbia Parties’ attorneys did not
file a brief or response in the Supreme Court of Texas; ( 4) awarding attorney’s fees for appellate work violates an indigent person’s right of access to the courts; ( 5) a Rule 11 agreement containing prospective language is not a contract ; and ( 6) Riggins is entitled to attorney’s fees.

A. Jurisdiction Over the Post

- Mandate Motions
In the order from which Riggins appeals , the trial court determined that it lacked jurisdiction over the Post

- Mandate M otions. The West Columbia Parties argue that the trial court was correct in making this determin ation. Construing Riggins’s appellate brief liberally, we conclude that Riggins asserts on appeal that the trial court had juri sdiction over the Post

- Mandate M otions because the
J udgment i s void. Though Riggins’ s briefing lacks clarity and precision , s he appears to be assert ing that the J udgment i s void because the trial court allegedly
4erred in enforcing the Rule 11 agreement , ordering attorney’s fees, and ren dering the Judgment. 3 Jurisdiction refers to a court’s authority to adjudicate a case. Reiss v. Reiss , 118 S.W.3d 439, 443 (Tex. 2003). If a court has jurisdiction to resolve a dispute, an error in its resolution of the merits does not deprive the court of jurisdiction.
See Reiss , 118 S.W.3d at 443 (holding that a judgment is not void merely because
the court erred in adjudicating the merits). Riggins does not argue that the trial court lacked jurisdiction to determine whether to enforce the Rule 11 agreement and to determine whether any of the parties were entitled to attorney’s fees. Instead, Riggins appears to be assert ing that the Judgment is void because the trial

court allegedly ma de the wrong decision. Riggins has not cited any authority that supports this proposition. Any error by the trial court in adjudicating the merits in the Judgment did n ot deprive the trial court of jurisdiction to render the Judgment , nor did it make the Judgment void. See id. Though Riggins states in a conclu sory manner that the Judgment i s void or void ab initio, Riggins has not provided any analysis in support of th is statement. We conclude that the Judgment is neither
void ab initio n or void.
In the remainder of her appellate brief, Riggins does not raise any other challenge to the trial court’s conclusion that it lacked jurisdiction over the Post

Mandate Motions. Riggins’ s argument challenging the trial court’s decision based on a purported lack of jurisdiction over the Post

- Mandate Motions is without merit. To the extent that Riggins c hallenge s the trial court’s determination that it lacked jurisdiction over the Post

- Mandate Motions in her six appellate issues , th os e issues
are overruled.

3 Riggins asserts that “[t]he judgment awarding attorney’s fees to Appellee’s [sic] counsel was in all th ings void for the foregoing referenced reasons, as well as those set out below.” 5B. Challenges to Enforcement of the Judgment The Texas Rules of Civil Procedure limit a trial court’s jurisdiction in the period after the trial court has render ed a final judgment. Custom Corporates, Inc. v. Security Storage, Inc. , 207 S.W.3d 835, 839 (Tex. App.

— Houston [14th Dist.] 2006, no pet.). A fter a trial court’s plenary power over a judgment expires, the
trial court has an affirmative duty to enforce it s judgment , and the trial court r etains statutory and inherent authority to do so. See Tex. R. Civ. P. 308; In re Crow

Billingsley Air Park, Ltd. , 98 S.W.3d 178, 179 (Tex. 2003); Bancorp South Bank v.
Prevot , 256 S.W.3d 719, 724 (Tex. App.

— Houston [14th D ist.] 2008, no pet.). But, a fter its plenary power over a judgment expires, the trial court may not issue
an order that is inconsistent with the judgment or that otherwise constitutes a material change in the substantive adjudicative portions of the judgme nt. Custom Corporates, Inc. , 207 S.W.3d at 839.
Under her third issue, Riggins argues that the West Columbia Parties are not entitled to attorney’s fees because they did not file a brief or a response in the Supreme Court of Texas. Under the language of the J udgment, as modified by this

court in the First Appeal , the West Columbia Parties are entitled to an additional $4,000 in appellate attorney’s fees “if [Riggins] should appeal . . . to the Texas Supreme Court,” conditioned on the West Columbia Partie s’ success on appeal. Under the unambiguous language of the Judgment , as modified by this court , the
West Columbia Parties were not required to file a response or a brief to be entitled
to recover th ese additional appellate fees. Riggins has not cited an y authority in which a court concludes that a judgment creditor must file an appellate brief or response to be entitled to recover appellate attorney’s fees awarded to the judgment creditor, even though that condition is not contained in the judgment. Ri ggins has
not shown that the trial court erred to the extent the trial court ordered the

6disbursement of the additional attorney’s fees from the registry of the court. 4 Under her first issue, Riggins also asserts that the trial court erred in ordering disbursement of attorney’s fees directly to the law firm representing the West Columbia Parties rather than to the West Columbia Parties. Riggins does not explain how she p reserved error as to this complaint. A review of the record
reveals that Riggins did not lay the proper predicate for appeal by voicing this complaint and obtain ing an adverse ruling in the trial court. Therefore, Riggins failed to preserve error as to t his appellate complaint. See Tex. R. App. P. 33.1(a);
Gammill v. Fettner , 297 S.W.3d 792, 801

– 02 (Tex. App.

— Houston [14th Dist.] 2009, no pet.). This portion of her first issue is thus waived. We have addressed all of Riggins ’s appellate arguments that constitute a challenge to the manner in which the trial court enforced the Judgment rather than an attempt to relitigate the Judgment after the trial court lost plenary power over the Judgment. We conclude that, in these arguments, Riggins has not shown t hat the trial court erred in the manner in which it enforced the Judgment. Having concluded that all of Riggins’s arguments lack merit, we overrule Riggins’s appellate issues. C. Damages Und er Texas Rule of Appellate Procedure 45 Texas Rule of Appellate Procedure 45, entitled “Damages for F rivolous Appeals in Civil Cases, ” provides for the assessment of just damages if the court of appeals determines that a civil appeal is frivolous

. See T ex. R. App. P. 45 (stating that, “[i] f the court of appeals determines that an appeal is frivolous, it may

— on motion of any party or on its own initiative, after notice and a reasonable opportunity for response

— award each prevailing party just damages”); Hatton v.

4 Riggins does not assert that the West Columbia Parties were not entitled to these fees because Riggins filed a petition for review rather than an appeal in the Supreme Court of Texas. Even if Riggins had made such an argument, we would conclude it lack s merit. 7Grigar , No. 14

- 09

- 00630

- CV, 2011 WL 175501, at *3 (Tex. App.

— Houston [14th Dist.] Jan. 20, 2011, no pet

. ) (ordering appellant and appellant’s attorney to pay Rule 45 damages to appellee) (mem. op.); Lookshin v. Feldman , 127 S.W.3d 100, 107 (Tex. App.

— Houston [1st Dist.] 2003, pet. de nied) (ordering only appellant’s attorney to p ay Rule 45 damages to appellee). Based on this rule, the West Columbia Parties have moved for just damages against Veronica L. Davis, counsel of record for Riggins. This court may award just damages under Rul e 45 if, after considering everything in its file, this court makes an objective determination that the appeal is frivolous. Glassman v. Goodfriend , 347 S.W.3d 772, 782 (Tex. App.

— Houston [14th Dist.] 2011, pet. denied) (en banc). To determine whether an appeal is objectively frivolous, this court reviews the record from the viewpoint of the advocate and decides whether the advocate had reasonable grounds to believe
the case could be reversed. Id

. But, Rule 45 does not mandate tha t this court award just damages in every case in which an appeal is frivolous. Id. The decision to award such damages is a matter within this court’s discretion, which this court exercises with prudence and caution after careful deliberation. Id.
In t he First Appeal, Riggins had the opportunity to show that the trial court reversibly erred in rendering the Judgment. In that appeal, this court addressed the arguments that Riggins made, found merit in only one of her arguments, and affirmed the Judgment as modified. See Riggins , 2011 WL 5248347, at *1

– 12. The Supreme Court of Texas denied Riggins’s petition for review and motion for rehearing of the denial of that petition. This court issued its mandate commanding
the trial court to observe and execute the Judgment as modified . Nonetheless, after issuance of this mandate, Riggins, represented by Davis, sought to relitigate the issues determined by the Judgment in the trial court . Riggins, through Davis, filed a “counterclaim,” in whi ch Riggins purported to assert claims for breach of
contract and intentional i nfliction of emotional distress. The trial court signed an

8order enforcing the Judgment, as modified by this court. In its order, the trial court found that it did not have jur isdiction over Riggins’s Post

- Mandate Motions. Riggins perfected an appeal from this order.
In most of he r appellate arguments , Riggins , through her counsel Davis,
seek s to relitigate the issues already resolved by the Judgment, which was final by appeal before Riggins perfected this appeal. Riggins has not shown, and the record does not reflect, any reasonable ground for concluding that the Judgment is void. Riggins has not made any other argument that, if successful, would allow her to
obtain relief in consistent with the Judgment, as modified by this court. As to Riggins’s challenges to the enforcement of the Judgment as modified by this court, the record does not show any reasonable ground for concluding that the West Columbia Parties were required to file a response or a brief to be entitled to recover the appellate fees awarded in that judgment. Nor does the record reveal any reasonable ground for concluding that Riggins preserved error in the trial court regarding her other challenge to the enforcem ent of the Judgment as modified.
The West Columbia Parties filed a Rule 45 motion asking this court to assess against Davis more than $54,000 in damages

. At no time during the pendency of this appeal has Davis or Riggins filed any response in opposition to this motion

. Nor has either Riggins or Davis undertaken to refute the stated reasons for the Rule
45 damages sought , though each has had ample notice of the relief sought and opportunity to be heard

. Considering everything in this court’s file and reviewing the record from the viewpoint of Davis, Riggins’s attorney, we conclude that Davis
ha d no reasonable grounds to believe that the case could be reversed

. Accordingly, we make an objective determination that this appeal is frivolous. See Glassman , 347 S.W.3d at 782

– 83. We also conclude that the West Columbia Parties should
be awarded Rule 45 damages against Davis. See id .; Hatton , 2011 WL 175501, at *3; Lookshin , 127 S.W.3d at 107.

9T he West Columbia Parties seek damages based upon the attorney’s fees and expenses they have incurred since the trial court rendered the Judgment

. Although
Rule 45 does not pre scribe a method for determining the amount of the “just damages,” c ourts have awarded just damag es based on proof of expenditures incurred by the appellee as a result of the frivolous appeal. See Chapman v.
Hootman , 999 S.W.2d 118, 123

– 25 (Tex. App.

— Houston [14th Dist.] 1999, no pet. ); Lookshin , 127 S.W.3d at 105

- 07. In this case, we conclude that just damages
should be calculated based upon the West Columbia Parties’ attorney’s fees and expenses incurred as a result of this appeal. See Chapman , 999 S.W.2d at 123

– 25;
Lookshin , 127 S.W.3d at 105

- 07. Therefore , we calculate just damages based on
the West Columbia Parties’ attorney’s fees and expenses in this case from the point Riggins perfected appeal in June 2013. The West Columbia Parties have submitted uncontroverted proof of reasonable attorney’s fees during this period in the amount of $12,175. 50 and of $161.28 in expenses , for a total of $12,336.78

. III. C ONCLUSION

W e affirm the trial court’s order . In addition, under Rule 45, we order Veronica L. Davis to pay the West Columbia Parties $12,336.78 in just damages. 5

/s/ Kem Thompson Frost Chief Justice

Panel consists of Chief Justice Frost and Justices Jamison and Wise.

5 The West Columbia Parties have not asked that Riggins be ordered to pay any damages under Rule 45, and we do not order Riggins to pay any Rule 45 damages. 10