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Phillips v. Phillips

Court of Appeals of Texas, Fourteenth District

December 19, 2013


On Appeal from the 246th District Court Harris County, Texas Trial Court Cause No. 2011-20224

Panel consists of Justices Boyce, Jamison, and Busby.


William J. Boyce Justice

James Patrick Phillips appeals from an Agreed Final Decree of Divorce and an order denying his motion for new trial. James contends that his attorney lacked authority to sign a Rule 11 agreement on his behalf while James was in federal prison. We affirm.


James and Stacey Lynn Phillips were married on May 15, 2003. During their marriage they had one son, J.M.R.

On December 17, 2009, James was sentenced to 135 months in prison followed by three years of supervised release. See United States v. Brooks, 681 F.3d 678, 689 (5th Cir. 2012). James and Stacey separated in May 2010. Stacey filed for divorce on April 1, 2011 and asked for a division of community property; confirmation of her separate property; sole managing conservatorship of J.M.R.; and child support. James filed a counterclaim seeking joint managing conservatorship; division of community property; and confirmation of his separate property.

During pretrial settlement discussions, James's conviction and sentence were affirmed by the United States Court of Appeals for the Fifth Circuit. See id. at 684. Notwithstanding his incarceration in Alabama, James hired three different attorneys to represent him throughout the course of this litigation. The first attorney, Teresa Waldrop, was replaced by Thomas A. Martin after a temporary orders hearing and before trial.

The divorce was set for trial on May 21, 2012. On that date, Martin signed an agreement under Texas Rule of Civil Procedure 11 on James's behalf; this agreement resolved all issues in connection with the divorce. James was not present at trial or at the signing of the settlement agreement due to his incarceration. Martin signed James's name on the Rule 11 agreement "by permission." Stacey, her attorney, and Martin filed the Rule 11 agreement with the trial court. The trial court stated as follows on the record on May 21: "[T]he Court approves your agreement, and your Rule 11 Agreement, and your divorce is granted." The parties then agreed on the record that entry of judgment in conformity with the trial court's pronouncement would be set for June 22, 2012. James's attorney Martin requested this date because "it takes at least 7 to 10 days for paper to get there to Montgomery, Alabama and then to come back." The trial court then stated: "Ma'am you are divorced, but we are waiting on the paperwork."

James filed for bankruptcy on June 21, 2012. James's attorney Martin filed a Notice of Respondent's Bankruptcy and Request for an Immediate Stay in the 246th District Court on the same day and sent a copy to Stacey's attorney. On June 22, 2012, Stacey's attorney appeared for a hearing on the signing and entry on the Agreed Final Decree of Divorce. The trial court signed the divorce decree on June 22, 2012 in conformity with the previously announced judgment "as a ministerial act based on rendition on May 21, 2012 per record."[1] Neither James nor his attorney Martin signed the Agreed Final Decree of Divorce.

James hired new counsel, Liza Greene, and filed an opposed motion to vacate judgment on July 6, 2012. James argued in the motion to vacate that the June 22, 2012 divorce decree had been signed in violation of the automatic bankruptcy stay. After a hearing on July 19, 2012, the trial court denied James's motion to vacate judgment.

James filed a motion for new trial on July 19, 2012. James asserted that he was entitled to a new trial based upon the following contentions: (1) attorney Martin signed the Rule 11 agreement without James's consent; (2) the trial court abused its discretion when dividing the marital estate; and (3) the trial court failed to grant his motion to vacate judgment.

At the August 29, 2012 hearing on James's motion for new trial, James did not testify in person, telephonically, or by deposition. James submitted no written communications to the trial court. Martin testified at the hearing pursuant to a subpoena.

Martin testified that he represented James and was present when the divorce was called to trial on May 21, 2012. Martin further testified that he communicated with James in prison through e-mail and mail, and that he believed he had negotiation and settlement authority on James's behalf. James's attorney Greene offered several documents into evidence in connection with James's contention that Martin signed the Rule 11 agreement without James's consent. The trial court excluded some of the documents, including Exhibits 1, 2, 6, and 7. The court excluded Exhibits 1, 2, and 7 based on Martin's assertion of the attorney-client privilege on James's behalf. Exhibit 6 was excluded on relevance grounds. After denying the motion for new trial, the trial court ordered that all of the exhibits be included in the record on appeal.

James timely filed his notice of appeal on September 24, 2012.

Standard of Review

James's appeal focuses on the denial of his motion for new trial. We review the trial court's disposition of a motion for new trial for abuse of discretion. See In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 210 (Tex. 2009); see also In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 756-57 (Tex. 2013); Miller v. Ferguson, 05-98-01246-CV, 2001 WL 845764, *1 (Tex. App.—Dallas July 27, 2001, no pet.) (not designated for publication). We also review a trial court's decision to admit or exclude evidence for abuse of discretion. In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005) (citing State v. Bristol Hotel Asset Co., 65 S.W.3d 638, 647 (Tex. 2001)).

A trial court abuses its discretion if it acts arbitrarily and without reference to guiding rules and principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003); Miller, 2001 WL 845764, at *1; see also Bradford v. Bradford, 971 S.W.2d 595, 597 (Tex. App.—Dallas 1998, no pet.). In determining whether the trial court has abused its discretion, we review the record in the light most favorable to the trial court's action. Holley v. Holley, 864 S.W.2d 703, 706 (Tex. ...

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