### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-08-00553- CV

Lisa Kay Dawson , Appellan t

v. William Je ff

rey D aws on, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 200 TH JUDICI AL DISTRICT NO. D-1 -F M- 05- 0021 42, H ONO RAB LE GISELA D. TRI ANA-DO Y AL, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

This is an appea l from the trial court’s final decr ee of d i v orce . I n two issues, appellant L isa Kay Dawson challeng es the trial court’s awa rd of attorney ’s fee s in favor of appellee Wil liam J eff

rey Dawson. Be cause we conclude that appellant has either failed to preserv e t h ese

1 issues for our revie w or, in the alterna tive, has waived these complaints, we aff irm the trial court’s final dec ree of divorce

.

J eff filed an orig inal petition for divorce on Marc h 30, 2005, which he later amende d to include a request for attorney ’s fees. L isa filed a counter- petition for divorce in which she a lso
soug ht attorney ’s fee s and reque sted a jury trial. At the start of the trial, the court inquired as to which is sues t he parties would subm i t t o t h e jury

. The parties ag ree d that the i ssues of m anag ing

Be cause the parties have the same surname, we will ref er to them as “L isa” and “Jeff,” their 1 pref err ed first na

mes, to avoid confusion.conser

vatorship and g eog raphic restric tions relating to their t wo m inor children w ould be dec ided by the jury , and that all p ro p er t y i s s u es would be tried to the court. The trial court then inquired fur

ther:

THE COURT: Any thing e lse that the jury

is going to be—
MR. W EEKS [C ounsel for Jeff]: No, I don’t believe so, J udg e. THE COURT: Mr. Fur low?
MR. FURL OW [C ounsel for L isa]: There will be issues on attorney fee s, as usual. THE COURT: Are y ’all submitting that to the jury ?
MR. WEEKS: Either way . I t’s up to him. I ’ll g o either way . THE COURT: Ok ay . Attorney ’s fee s will be s u b m i t t ed t o the jury

.
Consideration of the matter continued, howeve r, as the parties discussed how the trial court’s ruling s on their m o t i o n s i n limine would aff ect the prese ntation of their evidenc e on attorney ’s fee s. By her motion, L isa soug ht to prohibit any testimony reg arding settlement offe rs and
to limit any refer en ce to the fac t that settlement discussions had or had not taken place or to the
statements or conduct of any party in c onnection with suc h settlement discussions. J eff ’s attorney objected insofar as such a limit ation would preve nt him from putting on evidenc e befor e the jury of his rea sonable and nece ssary at t o rn ey ’s fee s that direc tly resulted from dilatory or bad-f aith
neg otiation tactics from opposing counsel. The trial court then inter jected:

THE COURT: Mr. Fur low, y ou kind of h av e t o m ak e a d ec i sion. I f the

attorney ’s fe es ar e g oing to g o to the jury , then I believe tha t
2it wi l l be rea sonable for them to deter mine, if the claim is made that one or both side s are being unrea sonable a nd, y ou know, they ’re —what they ’re doing as an attorney , they ’re g oing to he ar tha t. So—and I

—my firm b el i ef is what’s g ood for the g oose is g ood for the g ander

— MR. FURL OW: Absolutely

. THE COURT: —so if y ’all want to sit here and throw mud at eac h other and

talk about how bad the lawy ers are in the case , and that’s how y ou choose to spend y our time, I ’m not g oing to object to that. I f y ’all want to allow me to decide the attorney ’s fee s at th e end of the case , then I ’ll let y ’all pu t that on outside the prese nce o f t he jury

. But rig ht now on—I g uess—and y ou don’t need to de cide this second, but the decision is g oing to h av e t o be made. I f the attorney ’s fee s are g oing to b e prese nted to the jury , then I need to know beca use I will deny No. 4 [of L isa’s motion in li mine]. Okay ?

. . . . But my ruling is g oing to be, if attorney ’s fee s are g oing to g o

to the jury , if the jury is g oing to decide attorney ’s fee s, I will all ow—I will deny reque st for Moti on in L imine No. 4 with the understanding , Mr. Weeks—I d o n ’t want to hear about actua l neg otiations.

. . . The only —the only testimony that I ’m g oing to allow is for the misconduct, if y ou want to call it, or the obstructing the proce ss, if that is what y ’all are arg uing to the jury

. . . . MR. FURL OW: That’s fair. And I ’ll discuss with Mr. Weeks, once we f inish here

— THE COURT: That’s fine

. MR. FURL OW: —whether he wa nts to submi t it to t he jury

. THE COURT: Y’a ll come to a dete rmination and let me know.
MR. W EEKS: I ’m done. You can do the attorney ’s fee s. I d o n o t n ee d to

discuss that.

3THE COURT: Okay . And so it will be his decision.

The rec ord contains no indication, howeve r, of whether or how the issue was ultimately resolved. The court’s char g e contained only four questions, all of which rela ted to the
manag ing conser

vatorship of the children and the rig ht to desig nate their primary residenc e. During the charg e confere nce, both parties stated that they had no objections to the j ury char g e. The jury
returne d a verdic t that J eff an d L isa be named joint manag ing conser vators and that J eff have the exclusive right to desig nate the c hildren’s primar y residenc e. I n the months following the jury trial, the court hear d further evidenc e reg arding the
proper ty issues. D u

r in g those proce eding s, Mr. Weeks testified without objection that his rea sonable and nec essar

y attorney ’s fe es totaled just over $38,000. The tri a l c o urt signe d a final decr ee of divorce dividing the marital estate and order ing that L isa pay J eff

’s attorney ’s fee s in the amount of $38,000. L isa now appea ls, raising the following two issues:

POI NT OF ERROR NO. ONE (1) Appellant prese nts an issue that Appellee failed to prepa re and/or prese nt issues for the J ury to consider as to fac ts to deter mine an amount, if any , Appellant would owe for a ttorney

fee s to Appellee, thoug h Appellant re quested such f indings of f

act. POI NT OF ERROR NO. TWO (2) The Court committed reve rsible err or by g ranting attorney fee s for Appellee ag ainst Appellant, though Appellant reque sted that t h e j u ry make finding of fac t as to any attorney fee s and Appe llee fa iled to submit any issues to the jury

on that issue.

4L isa’s entire arg umen t as prese nted in her brief to this Court consists of the following :

T h e C ourt was awa

re, prior to the beg inning of the jury trial, that Appella n t wa s reque sting any fac t issue as t o attorney fee s be subm itted to the j u ry fo r t h e jury to find fac ts to deter

mine whether attorney fee s should be g rante d and any am o u n t there of. See the discussion betwee n the Court and both attorney s beg inning at pag e 8, line 18 of Vol. 2 of 7 and continuing for sever al pag es so it was made abundantly clea r to Appellee ’s at torney that any and all issues about attorney fee s would be submitt ed to the jury

.
The Texas Rules of Appellate Procedur e control the req u i re d contents and
org anization of an appellate brief. See Tex. R. App. P . 38.1. One of those requir ements is that an appellant’ s brief must concise ly state all issues or points prese nted fo r review. Id. An issue
prese nted for appellate revie w i s sufficie nt if it direc ts the revi ew i n g co u rt ’s attention to the error about which the complaint is made. Id. ; see Canton-Carter v. Baylor Coll. of Med. , 271 S.W .3d 928, 931 (Tex. App.—Houston [14t h Dist.] 2008, no pet.). L isa’s first issue fails to m ee t this
req u i re m en t , as it is direc ted at the actions of the opposing party and not the trial court and thus p re s en t s n othing for our revie w. See Canton-Carter , 271 S.W .3d at 931; see also Taylor

v. First State Bank , No. 03-98-00474- CV, 1999 Tex. App. L EXI S 6329, at *6 (Tex. App.—Austin Aug . 26, 1999, no pet.) (not de signa ted for publication).

I n addit ion, an appellant’ s brief must contain a clea r and concise arg ument fo r t h e contentions made there in and include appropr iate c it a ti o n s to le g a l a

u th o r it y a n d the appellate rec ord. See Tex. R. App. P. 38.1(i); Valadez v. Avitia , 238 S.W .3d 843, 845 (Tex. App.—El P as o 2007,

no pet.). L isa’s arg ument in support of her second issue f

ails to comply with these requireme nts. Fu rt h ermore, to complain of a ruling or action by the trial court on appea l, the rec ord must

5demonstrate that the complained- of ruling or action actua lly occur red. See Tex. R. App. P. 33.1(a) (2). The rec ord in this case does not support L isa’s asser tion that the issue of attorney ’s fee s

was to be tried to the jury ; rathe r, it shows only that the parties discussed the possibili ty of prese nting the issue to the jury but never conclusively decide d that they would do so. Even more importantly , L isa failed to object to the court’s char g e, which included no questions reg arding attorney ’s fee s, nor did she object when the trial court hear d evidenc e reg arding J eff ’s attorney ’s fee s during the bench trial on J eff

’s motion for enfor ceme nt. There fore , she failed to prese rve err or reg arding her complaint that the attorney ’s fee issue should have been deter mined by the jury

. See id. 33.1(a) (1).
I n light of the fore g oing, w e over rule L isa’s appe llate issues.

CONCLUSION Having conclude d that L isa failed to prese rve any alleg ed er ro r i n t h e trial court’s judgme nt or, in the alterna tive, has waived her claims due to inadequa te briefing in her appea l to this Court, we af

firm the trial c ourt’s final de cre e of divorc e.

J . Woodfin J ones, Chief Just ice
Be fore Chief J ustice Jones, J ustices Waldrop and He nson Affir med Filed: Apr il 30, 2010

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