author: Justice MOSELEY.

text:
    Mari BECK, Appellant, v. Jamie WALKER, Appellee.
    No. 05-03-00016-CV.
    Court of Appeals of Texas, Dallas.
    Jan. 31, 2005.

      James W. Creech, Dallas, for Appellant.
    Howard Shapiro, Howard Shapiro & Associates, Plano, Georganna L. Simpson, Law Offices of Georganna L. Simpson, Dallas, for Appellee.
    Suzanne Duvall, Dallas, for Attorney-Mediator.
    Before Justices MOSELEY, FITZGERALD, and LANG.
   OPINION

Opinion by

Justice MOSELEY.

This is an appeal of an order granting judgment for a child support obligation. In three issues, Mari Beck contends that the trial court abused its discretion by failing to award her the child support arrears she proved, medical expenses, and reimbursement for child support she paid under a void order. In a fourth issue, Beck contends the trial court abused its discretion by awarding an offset without evidence of direct support and that is not authorized by the family code. In a fifth issue, Beck contends the trial court abused its discretion in awarding her an amount of attorney’s fees less than she requested, and that the evidence is factually insufficient to support the trial court’s attorney’s fee award. For the following reasons, we resolve Beck’s fourth issue in her favor and reverse the order as to the amount of child support arrears and render judgment for child support 'arrears in the amount of $7,350. Also, we resolve Beck’s fifth issue in her favor and reverse the amount of attorney’s fees and remand that issue to the trial court for further proceedings. We affirm the order in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND

In 1997, the 219th Judicial District Court of Collin County, Texas, signed an “Order Under Uniform Interstate Family Support Act” ordering appellee, Jamie Walker, to pay Beck $350 per month in child support for their child, T.B. The obligation began May 15, 1997, and continued until T.B. was eighteen years old or until he was no longer enrolled in high school, whichever occurred later. In addition, the court also ordered Walker: (1) to maintain health insurance on T.B. for as long as child support was payable; (2) to pay all of T.B.’s health care expenses if, at the time they were incurred, Walker was not providing health insurance as ordered; and (3) to pay $2,450 with interest to the Texas Attorney General in retroactive child support.

Walker later sued Beck in Tennessee to modify visitation and the above child support obligation, and to change custody. The Tennessee court entered several orders pertaining to the suit. Under one order, Walker was awarded attorney’s fees and travel expenses. Pursuant to the Tennessee orders, T.B. lived with Walker from November 1999 to November 2000. During that time, Beck payed child support to Walker. However, in 2000, the Tennessee court determined that it did not have jurisdiction over the suit and vacated all orders.

In 2000, Beck filed suit in Georgia, where she was living, seeking custody of T.B. That suit was dismissed for lack of jurisdiction, and Beck was ordered to pay Walker’s attorney’s fees and travel and other expenses.

In 2001, Beck filed in Collin County a “Motion to Modify Child Support” and a “Motion to Enforce Child-Support Obligation and to Confirm Unpaid Child Support to Judgment and for Reimbursement for Health Care Expenses with Order to Appeal' and Show Cause.” Walker answered the motion to modify, generally denying the allegations. He also filed an answer to the motion to enforce, in which he both generally denied the allegations and pled that “there is no arrearage of child support.”

The trial court heard both motions. Beck testified that Walker owed her $13,949.32 in child support arrears as of September 23, 2002. She supported her testimony with a “Texas Child Support Arrearage Summary Report” and a “State Registry Payment History.” Beck also testified that Walker owed her for certain health care expenses, including T.B.’s share of her health insurance payments, certain co-pays, and eye care. Beck also claimed that Walker owed her $4,000 for ten payments of $400 she made to Walker when T.B. lived with Walker, which she was ordered to pay by the Tennessee court. She produced a $400 money order dated May 18, 2000, and testified that she did not have all the documentation of her payments because it was in storage. Walker admitted receiving “some payments.”

Walker testified that the Texas Attorney General closed his child support account in September 1999 because he had zero balance of child support. Accordingly, the amount of arrearage was $11,550 ($350 per month, due on the fifteenth day of each month, for the thirty-three months from October 1999 through June 2002). However, Walker also testified that he was entitled to some credits against that amount. He claimed he was entitled to a credit of $4,200 ($350 per month .for twelve months) for the period of time T.B. lived with him pursuant to the Tennessee court orders. He also testified Beck owed him $3,150, consisting of $1,000 in attorney’s fees and $250 expenses awarded by the Tennessee court and $1,500 in attorney’s fees and $400 in travel and related expenses awarded by the Georgia court.

Walker also testified that he obtained health insurance for T.B. from 1997 to 2002. He testified that he informed Beck of the coverage. Exhibits 9 and 10 were letters dated, respectively, January and February 1997, in which Walker provided Beck information on the coverage beginning in 1997 and included health insurance documents. Exhibits 7 and 8 were certificates of health insurance coverage covering 1998 through 2002. Walker also testified that he understood from Beck that she had a problem regarding coverage at a doctor’s visit and that he wrote her in response that he sent the insurance card, the coverage, and “all the information.” Further, Walker testified that he never received any statement from Beck that T.B. was not covered on health insurance or that Walker owed reimbursement for health insurance premiums. Even though Walker did not provide a copy of any letters to Beck regarding the 1998 through 2002 coverage, he testified he sent them.

Beck’s counsel testified that he had a contingent fee contract by which he would receive twenty-five percent of the child support arrears that were collected. He also testified regarding the hourly rate and the number of hours he had spent on the motion for enforcement, totaling $4,995.

On December 5, 2002, the trial court signed an “Order Granting Judgment on a Child Support Obligation.” The court ordered Walker to pay $4,200 in child support arrears, with prejudgment interest, and $1,050 in attorney’s fees. On December 30, 2002, Beck moved for new trial and requested findings of fact and conclusions of law. The trial court did not enter any findings or conclusions, and Beck’s motion for new trial apparently was overruled by operation of law.

On appeal, Beck makes no complaint regarding the trial court’s implied denial of her motion to modify child support. We therefore affirm that portion of the trial court’s judgment.

JUDGMENT FOR CHILD SUPPORT ARREARS

Beck’s first four issues attack the amount awarded her as “child support arrears.” Specifically, she contends the trial court abused its discretion by: (1) reducing the amount of child support arrearage and by not confirming the arrearage before reducing the judgment to reflect any offsets and counterclaims (issue one), and (2) awarding an offset or counterclaim in Walker’s favor without evidence of direct support and that was not authorized by the family code (issue four); (2) not awarding her an arrearage based on Walker’s health insurance obligation pursuant to section 154.188 of the family code (issue two); and (3) not awarding her reimbursement for child support she paid to Walker under Tennessee court orders (issue three). The record shows that the arrearage issue was raised by both parties’ pleadings, and that the offsets, health insurance obligation, and child support reimbursement issues were tried by consent.

A. Standard of Review

In a nonjury trial, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Thomas v. Thomas, 852 S.W.2d 31, 34 (Tex.App.-Waco 1993, no writ). The trial court is also the judge of the facts proved and the reasonable inferences to be drawn from those facts. Brigham v. Brigham, 863 S.W.2d 761, 762-63 (Tex.App.-Dallas 1993, writ denied). Generally, when a fact finder is presented with conflicting evidence, it may believe one witness and disbelieve others. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986).

Most appealable issues in a family law case, including a trial court’s confirmation of child support arrearages, are reviewed under an abuse of discretion standard. Attorney Gen. of Tex. v. Stevens, 84 S.W.3d 720, 722 (Tex.App.-Houston [1st Dist.] 2002, no pet.); Tate v. Tate, 55 S.W.3d 1, 5-6 (Tex.App.-El Paso 2000, no pet.). A trial court’s judgment is reversed only when it appears from the record as a whole that the trial court abused its discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990); Stevens, 84 S.W.3d at 722. A trial court abuses its discretion as to factual matters when it acts unreasonably or arbitrarily. Stevens, 84 S.W.3d at 722 (citing Worford, 801 S.W.2d at 109). A trial court abuses its discretion as to legal matters when it fails to act without reference to any guiding principles. Id. (citing Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992)).

To obtain findings of fact and conclusions of law, a party must file with the clerk of the trial court and present to the court a “Request for Findings of Fact and Conclusions of Law” within twenty days after judgment is signed. Tex.R. Civ. P. 296. Here, the trial court signed the order granting judgment on December 5, 2002, and Beck filed a “Request for Findings of Fact and Conclusions of Law” twenty-five days later, on December 30, 2002. Accordingly, Beck’s request was untimely. See Niskar v. Niskar, 136 S.W.3d 749, 753 (Tex.App.-Dallas 2004, no pet.). In a nonjury trial, where findings of fact and conclusions of law are neither filed nor timely requested, it is implied that the trial court made all necessary findings to support its judgment. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex.1992). The legal and factual sufficiency of the evidence to support these implied findings may be challenged when, as in this case, a reporter’s record is brought forward. Id. at 84 (citing Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex.1989)). However, under an abuse of discretion standard, arguments of legal and factual sufficiency of the evidence to support the judgment are not independent grounds for asserting error, but are relevant factors in assessing whether a trial court abused its discretion. Niskar, 136 S.W.3d at 753.

We assume for the sake of argument, as does Walker, that the trial court impliedly found the total amount of arrears of $4,200 by using Walker’s numbers — i.e., by subtracting from Walker’s stated amount of gross arrearages ($11,550) the amounts of his claimed credits for the period of time when T.B. lived with him ($4,200) and the amounts Beck owed him under Tennessee and Georgia court orders ($3,150). Thus, the trial court impliedly found that Beck was not entitled to health care expenses or reimbursement for the child support she paid. In addition, Beck and Walker assume that the trial court calculated the attorney’s fee award of $1,050 by taking twenty-five percent of $4,200. We agree these implied findings were necessarily findings because this is the only combination of the amounts in evidence that equals the judgment amount and the amount of attorney’s fees awarded. Accordingly, these implied findings are elements in our review of the record for abuse of discretion.

B. Child Support Arrears

In her first issue, Beck contends the trial court abused its discretion in reducing the amount of child support arrearage and by failing to confirm the arrearage before reducing the judgment to reflect any offsets and counterclaims. In her fourth issue, Beck contends the trial court abused its discretion by awarding an offset or counterclaim in Walker’s favor that was not authorized by the family code and when he produced no evidence of direct support. Because these issues attack the trial court’s judgment for child support arrears pursuant to chapter 157 of the family code, we address them together.

1. Applicable Law

Section 157.263 provides for confirmation of child support arrearages in the event of a motion to enforce the payment of child support:

(a) If a motion for enforcement of child support requests a money judgment for arrearage, the court shall confirm the amount of arrearage and render one cumulative money judgment.
(b) A cumulative money judgment includes:
(1) unpaid child support not previously confirmed;
(2) the balance owed on previously confirmed arrearage or lump sum or retroactive support judgments;
(3) interest on the arrearage; and
(4) a statement that it is a cumulative judgment.

Tex. Fam.Code Ann. § 157.263(a) (Vernon Supp.2004-05); Stevens, 84 S.W.3d at 722. Section 157.261 of the family code provides for the reduction of unpaid child support to judgment:

(a) A child support payment not timely made constitutes a final judgment for the amount due and owing, including interest as provided in this chapter.
(b) For the purposes of this subchapter, interest begins to accrue on the date the judge signs the order for the judgment, unless the order contains a statement that the order is rendered on another specific date.

Tex. Fam.Code Ann. § 157.261 (Vernon 2002). Section 157.262 provides, in pertinent part:

(a) Except as provided by this section, ... in rendering a money judgment, the court may not reduce or modify the amount of child support arrearage.
(f) The money judgment for arrearage rendered by the court may be subject to a counterclaim or offset as provided by this subchapter.

Id. § 157.262 (Vernon 2002). Thus, although the amount of arrearages is subject to a counterclaim for offset, the trial court has no authority to reduce or modify the amount of arrearage in rendering judgment. Curtis v. Curtis, 11 S.W.3d 466, 471 (Tex.App.-Tyler 2000, no pet.); Lewis v. Lewis, 853 S.W.2d 850, 854 (Tex.App.Houston [14th Dist.] 1993, no writ) (citing Williams v. Patton, 821 S.W.2d 141, 143 (Tex.1991)). In other words, the trial court acts as a “mere scrivener” in “mechanically” tallying the amount of arrear-age. Curtis, 11 S.W.3d at 471. However, the final judgment is to be rendered only after offset and counterclaim are considered. Lewis, 853 S.W.2d at 854.

Section 157.008 provides for an “affirmative defense to motion for enforcement of child support”:

(a) An obligor may plead as an affirmative defense in whole or in part to a motion for enforcement of child support that the obligee voluntarily relinquished to the obligor actual possession and control of the child.
(b) The voluntary relinquishment must have been for a time period in excess of any court-ordered periods of possession of and access to the child and actual support must have been supplied by the obligor.
(d) An obligor who has provided actual support to the child during a time subject to an affirmative defense under this section may request reimbursement for that support as a counterclaim or offset against the claim of the obligee.
(e) An action against the obligee for support supplied to a child is limited to the amount of periodic payments previously ordered by the court.

Id. § 157.008(a), (b), (d), (e) (Vernon 2002); Curtis, 11 S.W.3d at 471-72.

Under these statutory provisions, Beck had the burden of establishing the arrearage — the difference between the payments made by Walker and the payments required under the 1997 Collin County order. See id. at 472. Thereafter, Walker had the burden of establishing any counterclaim or offset. See id.; Buzbee v. Buzbee, 870 S.W.2d 335, 339 (Tex.App.Waco 1994, no writ) (discussing predecessor statute).

2. Discussion

In her first issue, Beck argues that she met her burden of proving the child support arrearage by providing a “Texas Child Support Arrearage Summary Report” and the “State Registry Payment History.” She contends this undisputed evidence showed arrearage of $13,949.32 as of September 23, 2002; thus, the trial court clearly abused its discretion by failing to make a finding of arrears in the amount of $13,949.32.

Walker testified that the Texas Attorney General closed his child support account in September 1999 because he had zero balance of child support. Accordingly, there was some evidence that the amount of arrearage was $11,550. This evidence conflicts with Beck’s testimony. Accordingly, we reject Beck’s argument that evidence established as a matter of law the amount of the child support ar-rearage. Moreover, because Beck did not timely file her request for findings of fact and conclusions of law, we reject her argument that the trial court abused its discretion by failing to make a finding confirming this amount of arrearage.

Beck makes two additional arguments in her first issue regarding the calculation of the $4,200 judgment amount. First, Beck argues there is no interest reflected in the judgment amount. However, section 157.263 provides that the court “shall confirm the amount of arrearage and render one cumulative money judgment” that includes “interest on the arrearage.” Tex. Fam.Code Ann. § 157.263(a), (b)(3) (Vernon Supp.2004-05). The “Order Granting Judgment on a Child Support Obligation” provides that judgment in the total amount due of $4,200 “together with legal interest at the rate of 6% simple interest per an-num from SEPTEMBER 23, 2002, is granted in favor of [Beck].” Further, the order states, “This Judgment is a cumulative judgment, covering all child support arrears and accrued interest as of this date.” (Emphasis added.) Accordingly, the record does not show that the judgment amount does not include interest.

Second, Beck argues that the trial court abused its discretion by failing to specify a period of time for the payments, thus effectively reducing the amount of the judgment. However, nothing in the judgment shows the judgment amount is not immediately due and payable. See In re M.C.R., 55 S.W.3d 104, 109 (Tex.App.-San Antonio 2001, no pet.) (“The trial court is accorded broad discretion in setting and modifying child support payments.”). Accordingly, because we have rejected Beck’s challenges to the calculation of arrearage, Beck has not shown an abuse of discretion as to any amount of arrearage. We resolve Beck’s first issue against her.

“Only after the arrearage is confirmed can the judge reduce the amount of the judgment to reflect offsets and counterclaims for actual support.” Buzbee, 870 S.W.2d at 340. In her fourth issue, Beck argues that Walker presented no evidence of expenditures made on behalf of T.B. during his period of possession (November 1999 through November 2000), and that this possession was not voluntary on her part because it was ordered by the Tennessee court.

Walker testified that T.B. lived with him from November 1999 to November 2000, and was enrolled in high school during that time. There was evidence that the Tennessee court ordered this change in custody. However, when this and other Tennessee orders were vacated, the period of relinquishment by Beck could have been considered by the trial court to be voluntary on her part. Accordingly, there was some evidence that Walker was entitled to the affirmative defense of voluntary relinquishment and an offset of $350 per month for twelve months, for a total of $4,200. See Tex. Fam.Code Ann. § 157.008(a), (b), (d), & (e).

Relying on Curtis, 11 S.W.3d at 474, and Buzbee, 870 S.W.2d at 341, Beck argues that Walker was nevertheless required to provide some evidence of his expenditures on T.B. during this period. We disagree.

In Curtis, the Tyler Court of Appeals held that to receive a credit against the arrearage, the obligor must provide the court with “some evidence of his expenditures on the child.” Curtis, 11 S.W.3d at 473 (quoting Buzbee, 870 S.W.2d at 341). In Buzbee, the Waco Court of Appeals, interpreting section 14.41(c) of the family code, the predecessor statute of section 157.008(e), held that the plain language of section 14.41(e) provided that the party claiming its benefits “must prove (1) that he had possession of the child for periods in excess of the court-ordered periods of possession (2) during which he incurred expenses for actual support of the child.” Buzbee, 870 S.W.2d at 340-41.

However, as explained by the Corpus Christi Court of Appeals in In re A.M., 101 S.W.3d 480, 487-88(Tex.App.-Corpus Christi 2002, pet. filed), Curtis relied on cases, including Buzbee, that were decided before the recodification of the family code in which section 157.008(e) was enacted and its predecessor statute, section 14.41(c), was repealed. The Corpus Christi Court of Appeals rejected the rationale of Curtis, and, by extension, Buzbee, on grounds that statutory language of section 14.41(c) was omitted and that an obligor who gained possession of a child was under no more obligation to file ac-countings to show money spent for actual support than was the obligee. M The plain language of section 158.008 does not require evidence of the obligor’s expenditures on the child. See Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex.1999) (“If the meaning of the statutory language is unambiguous, we adopt, with few exceptions, the interpretation supported by the plain meaning of the provision’s words and terms.”). We are persuaded by the reasoning of the Corpus Christi Court of Appeals in In re A.M. and decline to follow Curtis and Buzbee. Accordingly, we reject Beck’s argument that Walker was required to provide some evidence of his expenditures on T.B. to be entitled to an offset. We resolve Beck’s fourth issue against her to this extent.

In addition to the $4,200 offset or credit discussed above, Walker testified that Beck owed him $3,150, as detailed above. Walker refers to these amounts as “equitable offsets.” Beck’s fourth issue states, “Did the trial court abuse its discretion ... by awarding an offset or counterclaim for matters not authorized by the Texas Family Code?” We agree that these amounts are not expressly authorized by subchapter F of chapter 157 of the family code. See Tex. Fam.Code Ann. § 157.262(f) (“The money judgment for arrearage rendered by the court may be subject to a counterclaim or offset as provided, by this subchapter.”) (emphasis added). Nor are they expressly authorized by section 157.008, which provides for the affirmative defense of voluntary relinquishment and reimbursement as an offset of counterclaim for actual support provided during a time subject to an affirmative defense. See id. § 157.008(a), (d).

In Stevens, 84 S.W.3d at 723-24, the Houston First Court of Appeals considered whether a Social Security payment to a child was a proper credit towards child support arrearage to which the parent was entitled “as a matter of equity and law.” That court analyzed the language of sections 157.262 and 158.008 and determined that “counterclaims and offsets must be found exclusively in the [family] code.” Id. at 724. The Houston First Court of Appeals declined to follow case law permitting Social Security payments to be credited toward satisfaction of court-ordered child support payments. The Houston First Court of Appeals’s overriding consideration was “the binding provisions” of the family code. Id. at 725. That court also determined that equitable factors favored the denial of the credit. Specifically, payment of arrearage serves two purposes: (1) fulfilling a previously unfulfilled duty to the child, and (2) reimbursing the custodial parent for extra resources expended to support the child. Id. “Giving credit to Stevens for a Social Security dependent’s disability payment made directly to his adult son may arguably serve the first purpose, but it ignores the second.” Id.

Applying the reasoning of the Houston First Court of Appeals to the attorney’s fees and expenses here, we conclude that they are not “actual support” provided for by section 158.008 and do not serve either purpose stated by Stevens. Accordingly, we conclude that any consideration of these amounts as an “equitable offset” was an abuse of discretion. We resolve Beck’s fourth issue in her favor to the extent that $3,150 ordered by the Georgia and Tennessee courts were considered by the trial court as an offset or counterclaim.

C. Child Support

In her third issue, Beck contends the trial court should have awarded her reimbursement for amounts of child support she paid Walker under a void Tennessee court order.

Beck contends that because all Tennessee court orders were voided, Walker’s child support obligation to her continued as if uninterrupted and that she should be reimbursed for her support payments to him. As to Walker’s child support obligation, that issue is addressed above in our discussion of arrears. However, Beck’s claim for payments made by her is not a claim to enforce child support arrearage under chapter 157. See Tex. Fam.Code Ann. § 157.001(a) (Vernon 2002) (defining “motion for enforcement as provided in the chapter” as motion “to enforce a final order for conservatorship, child support, possession of or access to a child, or other provisions of a final order”). Indeed, Beck does not cite chapter 157 or any other authority to support her argument.

Walker responds that the trial court could have found that Beck was not entitled to reimbursement of the payments she made under the Tennessee orders because she had a duty to support T.B. even when he was in Walker’s possession. This obligation is based on a parent’s duty to support her child, regardless of whether the parent is under a court order to support the child. See id. § 151.001(a)(3); In re B.T., 954 S.W.2d 44, 49 (Tex.App.-San Antonio 1997, pet. denied). Walker argues Beck’s duty to support T.B. is not negated by the fact that she paid support pursuant to a void order. In light of this authority, we conclude that Beck has not shown any abuse of discretion regarding reimbursement. We resolve Beck’s third issue against her.

D. Health Insurance Expenses

Beck’s second issue states, “Must the trial court award necessary medical expenses for the child if the obligor fails to provide health insurance as ordered under a valid court order?” Beck argues that Walker presented no evidence that he provided notice to her of health insurance coverage for 1998 through 2002. We assume for the sake of argument that the trial court impliedly found that Walker provided health insurance for T.B. as ordered in the 1997 Collin County order and thus was not responsible for health care expenses incurred by Beck.

1. Applicable Law

Section 154.188 of the family code provides that “[a] parent ordered to provide health insurance who fails to do so is hable for: (1) necessary medical expenses of the child, without regard to whether the expenses would have been paid if health insurance had been provided; and (2) the cost of health insurance premiums or contributions, if any, paid on behalf of the child.” Tex. Fam.Code Ann. § 154.188 (Vernon 2002).

2. Discussion

As detailed above, there was some evidence supporting the trial court’s implied finding that Walker provided health insurance for T.B. from 1997 through 2002, informed Beck of the coverage, and therefore was not liable for health expenses or premiums under section 154.188. Accordingly, we resolve Beck’s second issue against her.

ATTORNEY’S FEES

In her fifth issue, Beck contends the award of $1,050 is an abuse of discretion and against the great weight of the evidence. She argues she should have received twenty-five pex-cent of the full amount of arrearage she proved ($13,-949.32), not after any offset or counterclaim, or $3,487.33. She also contends that awarding a percentage fee based on an inaccurate judgment amount because of failure to apply the law properly in determining the judgment amount was arbitrary or unreasonable.

Section 157.167(a) of the family code provides for the payment of the mov-ant’s reasonable attorney’s fees in addition to arrearage when the court finds that the respondent has failed to make child support payments. Tex. Fam.Code Ann. § 157.167(a) (Vernon Supp.2004-05). Whether to award attorney’s fees pursuant to the family code is within the discretion of the trial court. See Rinehold v. Rinehold, 790 S.W.2d 404, 407 (Tex.App.-Houston [14th Dist.] 1990, no writ) (interpreting predecessor statute, section 14.33(b)), disapproved of on other grounds by Bruni v. Bruni, 924 S.W.2d 366, 368 (Tex.1996).

We have rejected Beck’s arguments that she proved $13,949.32 in arrears as a matter of law and the trial court should have confirmed a judgment for $13,949.32 in child support arrears. Moreover, Beck cites no authority to support her argument that the attorney’s fees should have been awarded on an amount other than the judgment, that is, on the amount of arrears, without taking into consideration any offsets or counterclaims. Accordingly, we reject Beck’s argument that attorney’s fees of twenty-five percent of this amount should have been awarded.

In her argument regarding attorney’s fees as a percentage of judgment, despite citing the standard for factual sufficiency, Beck contends that “[t]he award of attorney’s fees should be ordered in a minimum amount of $3,487.33 or at the hourly rate testified to by Movant’s attorney, being $4,995.” Nevertheless, we have agreed with Beck’s argument that the judgment amount is improper because the trial court impliedly included offsets not allowed by the family code. Therefore, in the interest of justice, we resolve Beck’s fifth issue in her favor to the extent we conclude that the amount of attorney’s fees impliedly found by the trial court was awarded on an inaccurate judgment amount.

CONCLUSION

Because of our disposition of Beck’s fourth issue, we reverse that part of the trial court’s order granting judgment on a child support obligation ordering judgment for child support arrears and render judgment that the total amount due is $7,350 ($4,200 plus $3,150). Because of our disposition of Beck’s fifth issue, we reverse the amount found by the trial court as reasonable attorney’s fees and remand this issue to the trial court for further proceedings.

      . The record shows that T.B. graduated from high school in 2002, and that his eighteenth birthday was July 10, 2002.

      . Beck asked the trial court to take judicial notice of the order, and the trial court did so. The order was not offered as an exhibit. It is not found in the record on appeal. The court reporter’s certificate states that the reporter’s record contains "all portions of evidence and other proceedings requested in writing by counsel ...” and "reflects the exhibits, if any, offered by the respective parties.” The record does not show that Beck designated the judicially noticed order be included in the reporter’s record. See Tex.R.App. P. 34.6(b)(1) (providing that appellant's written request for preparation of the reporter’s record "must designate the exhibits to be included”). Beck included the full text of the order as an appendix to her brief. The attachment of a document as an exhibit or appendix to a brief is not formal inclusion in the record on appeal and, thus, the document cannot be considered. See Perry v. Kroger Stores Store No. 119, 741 S.W.2d 533, 534 (Tex.App.-Dallas 1987, no writ); see also Sabine Offshore Serv., Inc. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex.1979) (per curiam) (matters outside record cannot be considered by appellate court for any purpose other than determining its own jurisdiction); Kaman v. State, 923 S.W.2d 129, 131-32 (Tex.App.-Houston [1st Dist] 1996, no pet.) (outlining method for including judicially noticed document in record on appeal). However, the order is quoted in part in Beck’s motion to modify and in the order granting judgment on a child support obligation, which do appear in the record on appeal. Accordingly, we consider only that part of the order that appears in these documents.

      . Walker did not plead a statutory counterclaim or offset or the out-of-state awards, which he calls “equitable offsets.” In addition, Beck did not plead that she was entitled to reimbursement for child support. Neither party amended its pleadings to include these claims. However, the parties offered evidence on these claims without objection. Accordingly, we conclude these claims were tried by implied consent. See Tex.R. Civ. P. 67 ("When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”); RE/MAX of Tex., Inc. v. Katar Corp., 961 S.W.2d 324, 328 (Tex.App.-Houston [1st Dist.] 1997) ("To determine whether the issue was tried by consent, the Court must examine the record not for evidence of the issue, but rather for evidence of trial of the issue.”), pet. denied, 989 S.W.2d 363 (Tex.1999).

      . Section 14.41(c) read:
      Possession of Child by Obligor. If the managing conservator has voluntarily relinquished to the obligor the actual care, control, and possession of a child for a time period in excess of the court-ordered periods of possession of and access to the child, the child support order continues unabated until further order of the court as provided by Section 14.08 of this code. However, an obligor who has provided actual support to the child during such time periods may seek reimbursement for that support as a counterclaim or offset against the claim of the managing conservator. An action against the managing conservator for support supplied to a child shall be limited to the amount of periodic payments previously ordered by the court.
      Act of May 27, 1985, 69th Legis., R.S., ch. 232, § 9, 1985 Tex. Gen. Laws 1158, 1163 (emphasis added), repealed by Act of April 6, 1995, 74th Leg., R.S., ch. 20 § 2(1), 1995 Tex. Gen. Laws 113, 282.

      . The Corpus Christi Court of Appeals noted that the language emphasized in footnote 4 was omitted. Id. at 487.

        . See In re Rich, 993 S.W.2d 272 (Tex.App.-San Antonio 1999, no pet.); In re Allsup, 926 S.W.2d 323 (Tex.App.-Texarkana 1996, no writ).


source: Caselaw Access Project

author: Justice MORRIS.

license: Public Domain

text:
    Angela Lee O’BRIEN, Appellant, v. The STATE of Texas, Appellee.
    Nos. 05-03-01014-CR to 05-03-01016-CR.
    Court of Appeals of Texas, Dallas.
    Jan. 31, 2005.

      William R. Barr, Dallas, for appellant.
    William T. (Bill) Hill, Jr., Christina O’Neil, Dist. Attorney Office, Dallas, for state.
    Before Justices MORRIS, WHITTINGTON, and O’NEILL.
   OPINION

Opinion by

Justice MORRIS.

After being indicted for three theft offenses, Angela Lee O’Brien pleaded guilty before the court without the benefit of a plea bargain. She contends on appeal that her due process rights were violated because the evidence against her was legally and factually insufficient to support her convictions. Concluding appellant’s contentions are without merit, we affirm the trial court’s judgments.

Appellant admitted at her trial she was freely and voluntarily pleading guilty to the charges against her. She testified to the trial court that she made “a lot of mistakes” and acknowledged that “innocent people ... have been hurt.” She attempted to explain the reasons for her acts. She also explained that she desired to pay back her victims. She stated that she had committed “crimes, very serious ones.” But she also stated that she did not “intentionally mean to” commit the offenses. In his closing argument, appellant’s attorney admitted there was “no question” she had defrauded and stolen from people. Now on appeal, appellant contends in four points of error that her federal due process rights have been violated. More specifically, she contends her conviction violated her due process rights because the testimony given at her trial, including her own, rendered the evidence against her both legally and factually insufficient to support her convictions.

The Due Process Clause of the United States Constitution prohibits a criminal defendant from being convicted of an offense and denied her liberty except upon proof sufficient to persuade a rational fact finder of guilt beyond a reasonable doubt. Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App.2003). The United States Supreme Court case of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), sets out the federal constitutional due process standard by which we measure the legal sufficiency of evidence in cases where the federal constitution places the burden on the prosecution to establish guilt beyond a reasonable doubt. See Fuller v. State, 73 S.W.3d 250, 252 (Tex.Crim.App.2002); Ex parte Williams, 703 S.W.2d 674, 682 (Tex.Crim.App.1986). Under that standard, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson, 443 U.S. at 318-19, 99 S.Ct. 2781; Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App.2000). In contrast to the application of the legal sufficiency standard, the factual sufficiency standard for the State of Texas has no bearing on a federal due process complaint. See Clewis v. State, 922 S.W.2d 126, 132 (Tex.Crim.App.1996).

Moreover, where a defendant knowingly, intelligently, and voluntarily enters a plea of guilty or nolo contendere, the legal sufficiency standard of Jackson is also inapplicable. Williams, 703 S.W.2d at 682; see Wright v. State, 930 S.W.2d 131, 132 (Tex.App.-Dallas 1996, no pet.). Appellant makes no claim in these appeals that her pleas were made involuntarily or without knowledge. Accordingly, her federal due process claims based upon the legal and factual sufficiency of the evidence are without merit. We overrule appellant’s four points of error.

We affirm the trial court’s judgments.


author: Justice MAZZANT.

text:
    EMPLOYERS MUTUAL CASUALTY COMPANY, Appellant, v. ST. PAUL INSURANCE COMPANY, Appellee.
    No. 05-03-01682-CV.
    Court of Appeals of Texas, Dallas.
    Feb. 1, 2005.

      Thomas D. Caudle, Mateer & Shaffer L.L.P., Dallas, for appellant.
    R. Brent Cooper, Diana L. Faust, Devon Joy Fultz, Cooper & Scully, P.C., Dallas, for appellee.
    Before Justices WRIGHT, RICHTER, and MAZZANT.
   OPINION

Opinion by

Justice MAZZANT.

Employers Mutual Casualty Company (Employers) appeals the take-nothing summary judgment rendered in favor of St. Paul Insurance Company (St.Paul) on Employers’ suit against St. Paul for reimbursement of claims against the parties’ mutual insured. Employers brings five issues asserting the trial court erred by granting St. Paul’s motion for summary judgment and denying Employers’ motion. We affirm the trial court’s judgment.

BACKGROUND

Employers insured Hanna Construction, Inc., a contractor for road maintenance, under a commercial general liability (CGL) policy. Hanna subcontracted the road striping job to Striping Technologies, Inc. (STI). STI was insured by St. Paul under an auto liability policy and a CGL policy. Hanna required that STI make Hanna an additional insured under STI’s CGL with St. Paul.

On July 15, 1998, STI’s road-work convoy was in Smith County on 1-20 eastbound marking the location for the yellow stripe on the inside lane next to the center median. The convoy consisted of the trucks that performed the road marking and two “supply truek[s]/erash truck[s].” The supply truck/crash truck (crash truck) bringing up the rear of the convoy was a 1985 Volvo flat-face truck. This crash truck had a flatbed on the back with a cargo grate around it, an arrow board on the back, and a crash barrier. At the time of the accident, the driver of the rear crash truck had stopped the truck and taken it out of gear just before the crest of a hill while he waited for the road-marking trucks to start climbing the next hill. The speed limit was 70 miles per hour, and the driver of the crash truck observed several vehicles nearly hit his truck. Suddenly, the truck driver saw a red blur and braced as a Suburban drove into the crash barrier at full speed. The Suburban driver, Gary Hudman, and one of his passengers, Er-cille Hudman, were killed, and the other passenger, John Hudman, was seriously injured. They sued STI and Hanna for negligence.

STI settled with the Hudmans for one million dollars, the policy limit of its auto insurance policy with St. Paul. Hanna settled with the Hudmans for $625,000 paid from its CGL policy with Employers. Employers then asserted it was subrogat-ed to Hanna’s right to reimbursement as an additional insured under the St. Paul CGL policy issued to STI. Employers sued for a declaratory judgment that St. Paul had a duty to reimburse Employers for funds it paid on behalf of Hanna in settlement of the Hudman lawsuit.

Both sides moved for traditional summary judgment. St. Paul asserted the coverage was excluded by the CGL policy’s auto exclusion and because the policy limits of all St. Paul policies had already been paid. The trial court granted St. Paul’s motion, denied Employers’ motion, and entered judgment that Employers take nothing.

STANDARD OF REVIEW

The standards for reviewing a traditional summary judgment are well established. Tex.R. Civ. P. 166a(c); Sysco Food Servs. v. Trapnell, 890 S.W.2d 796, 800 (Tex.1994); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). In deciding whether there was a fact issue raised to preclude summary judgment, we accept all evidence favorable to the nonmovant as true, indulge the nonmovant with every favorable reasonable inference, and resolve any doubt in the nonmovant’s favor. Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 311 (Tex.2002); Nixon, 690 S.W.2d at 548-49. On appeal, the movant must show there is no material fact issue and that the movant is entitled to judgment as a matter of law. Limestone Prods. Distrib., Inc., 71 S.W.3d at 311. When both sides move for summary judgment and the trial court grants one motion and denies the other, the appellate court reviews both sides’ summary judgment evidence, determines all questions presented, and renders the judgment that the trial court should have rendered. Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex.2001). When a trial court’s order granting summary judgment does not specify the grounds relied upon, the reviewing court must affirm the summary judgment if any of the summary judgment grounds are meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000).

For a defendant to prevail on summary judgment, he must show there is no genuine issue of material fact concerning one or more essential elements of the plaintiffs cause of action or establish each element of an affirmative defense as a matter of law. Tex.R. Civ. P. 166a(c); Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex.1990). Only after the defendant produces evidence entitling him to summary judgment does the burden shift to the plaintiff to present evidence raising a fact issue on the elements negated. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Muckelroy v. Richardson Indep. Sch. Dist., 884 S.W.2d 825, 828 (Tex.App.-Dallas 1994, writ denied).

ST. PAUL’S CGL POLICY

St. Paul’s CGL policy contained the following statement of general coverage of liability for bodily injury and property damage:

Bodily injury and property damage liability. We’ll pay amounts any protected person is legally required to pay as damages for covered bodily injury, property damage or premises damage that:
• happens while this agreement is in effect; and
• is caused by an event.

The policy stated that “Event means an accident including continuous or repeated exposure to substantially the same general harmful conditions.” In explaining who qualified as a “protected person,” the policy stated, “Your employees are protected persons only for work done within the scope of their employment by you.”

The policy contained the following auto exclusion:

Auto. We won’t cover bodily injury, property damage or medical expenses that result from the:
• ownership, maintenance, use or operation;
• loading or unloading; or
• entrustment to others;
of any auto owned, operated, rented, leased or borrowed by any protected person.
But we won’t apply this exclusion to bodily injury, property damage or medical expenses that result from the:
• parking of an auto on any premises you own, rent, lease or borrow, or on ways next to such premises, if the auto isn’t owned rented, leased or borrowed by any protected person; or
• operation of specialized equipment. Auto means any land motor vehicle, trailer or semitrailer designed for travel on public streets or roads. It includes any permanently attached machinery or equipment. But we won’t consider mobile equipment to be an auto.

Mobile equipment means any land vehicle that:

• is kept for use only on or next to premises you own, rent or lease;
• travels on crawler treads;
• is kept primarily for the ready movement of permanently attached construction equipment; or
• doesn’t travel under its own power and is kept primarily for the ready movement of permanently attached specialized equipment.

Mobile equipment includes any land vehicle not described above that’s kept primarily for purposes other than carrying people or cargo. But we won’t consider such a vehicle to be mobile equipment if it:

• travels under its own power;
• is operated like an auto during travel on a public street or road; and
• has permanently attached specialized equipment; or
• has permanently attached equipment designed for snow removal, street cleaning, or street or road maintenance — but not construction or resurfacing.

Construction equipment includes any grader, scraper, roller or power crane, shovel, loader, digger or drill.

Specialized equipment means any:

• cherry picker or similar device used to lift workers;
• pump, generator or air compressor; or
• other equipment, such as building cleaning, geophysical exploration, lighting, spraying, welding or well-servicing equipment, that has a built-in pump, generator or air compressor.

ANALYSIS

In this case, it is undisputed that the Hudmans’ injuries were the result of an event—an accident—that happened while the policy was in effect. Thus, the incident falls within the general coverage provision.

We next must determine whether coverage is excluded by the auto exclusion. The auto exclusion states that the policy does not cover bodily injury, property damage, or medical expenses that result from the use or operation of any auto owned or operated by any protected person. It is undisputed that STI owned the crash truck and that its employee was operating the crash truck. Employers argues that the auto exclusion does not apply because, it asserts, the accident did not arise from the use of the crash truck as an “auto,” and it disputes that the crash truck was an “auto.”

Employers argues, “Although the Hud-mans’ impact with STI crash truck may have caused the deaths and injuries, they were not caused by the use or operation of the crash truck as a vehicle.” Employers asserts the Hudmans’ deaths and injuries were instead caused by the use of the crash truck as a “stationary steel barricade,” and by STI’s failure to use appropriate warning systems to safely guide the traffic around the work zone.

The supreme court has used the following three-prong test to determine whether an injury arises out of the use of a motor vehicle for purposes of auto liability insurance coverage:

(1) the accident must have arisen out of the inherent nature of the automobile as such,
(2) the accident must have arisen within the natural territorial limits of an automobile, and the actual use must not have terminated,
(3) the automobile must not merely contribute to cause the condition which produces the injury, but must itself produce the injury.

Mid-Century Ins. Co. v. Lindsey, 997 S.W.2d 153, 157 (Tex.1999) (quoting 8 Couch on Insurance 3d § 119.37 (1997)).

Employers argues the accident does not meet this test. Employers first argues the accident did not arise out of the inherent nature of the truck as such and that the use of the truck had terminated because the truck was stopped on the freeway when the Hudmans drove into it. Employers argues the truck was being used as a barrier, not a vehicle. We disagree. The truck was being used to transport the driver, the crash barrier, and the flashing arrow sign when the Hudmans drove into it. Although the truck was not moving and was not in gear when the Hudmans drove into it, the truck was still being used to transport the driver, crash barrier, and sign at the time of the accident.

Employers next argues the truck merely contributed to cause the condition producing the injury and did not itself produce the injury. According to Employers, what caused the accident was not the truck but STI’s failure to provide warning and traffic diversion around the crash truck and the work convoy. Thus, Employers argues, the crash truck was merely the locational setting for the accident and not its cause.

Employers asserts this case is similar to LeLeaux v. Hamshire-Fannett Independent School District, 835 S.W.2d 49 (Tex.1992). In LeLeaux, a school girl hit her head while trying to close the back door of a school bus. Id. at 50. The girl jumped from the ground into the rear doorway of the bus. She mistakenly thought she was inside the doorway, and when she straightened up, she hit her head on the door frame. Id. at 51. When the girl hit her head, the bus was parked, its engine was not running, and the bus driver was not on the bus. Id. The supreme court stated the girl did not jump back into the bus to take her seat. Id. The supreme court concluded the girl's injury did not “arise[] from the operation or use of a motor-driven vehicle,” which would have waived the school district’s governmental immunity under the Tort Claims Act; instead, the court concluded that “[t]he bus was nothing more than the place where Monica happened to injury herself.” Id.

Employers argues that the crash truck, like the bus in LeLeaux, was simply the place where the accident happened. Employers asserts,

while idling in park the truck was not performing the work of transportation, but instead obviously served as a source of power for the flashing arrow board. Moreover, the fact that [the driver] chose to remain in the track was simply happenstance; he could have just as easily, for example, stretched his legs in the median, or walked the short distance to the crest of the hill to observe the STI work crew.

We disagree. The fact that the crash truck was stopped is not determinative of whether it was being used or operated. See Denton v. State, 911 S.W.2d 388, 389-90 (Tex.Crim.App.1995); Stagg v. Tex. Dep’t of Pub. Safety, 81 S.W.3d 441, 444-45 (Tex.App.-Austin 2002, no pet.). The crash truck was transporting the driver, the crash barrier, and the flashing arrow board at the time of the accident. The driver was in the truck, the engine was running, and the driver was waiting to drive the crash truck over the crest of the hill when the accident occurred. We conclude the crash truck was not merely the place where the accident happened. Instead, the evidence establishes the accident was caused by the use of the crash truck as an “auto.” It was the truck’s presence on the roadway and the decision to stop the track in the left lane in fast-moving traffic that resulted in the accident.

Employers also asserts that coverage is not barred by the auto exclusion because the Hudmans’ lawsuit alleged non-vehicular negligence, including the failure to properly warn the traffic of the stopped crash truck and the work convoy’s presence through signs, lane closures, etc. When a plaintiff alleges multiple independent “but for” claims of injury, some of which are excluded and some which are not, the insurer is subject to the independent claims that are not excluded. Travelers Indem. Co. v. Citgo Petroleum Corp., 166 F.3d 761, 771 (5th Cir.1999); see Fid. & Guar. Ins. Underwriters, Inc. v. McManus, 633 S.W.2d 787, 790 (Tex.1982) (insured’s negligent entrastment of vehicle was not cause of injury independent of driver’s negligence); Warrilow v. Norrell, 791 S.W.2d 515, 525-26 (Tex.App.-Corpus Christi 1989, writ denied). In this case, the underlying plaintiff alleged that STI and Hanna were negligent by instructing an employee to stop the crash truck in the fast lane of a busy highway without adequate warning and traffic control. The facts in this case, however, conclusively establish that the accident was caused by the “use or operation” of the truck by stopping it in the fast lane of a busy highway; the failure to provide adequate warnings and traffic control were causes dependent upon the use or operation of the truck and were not independent causes of the accident. But for the “use or operation” of the truck, there would not have been an accident. Cf. Fid. & Guar. Ins. Underwriters, Inc., 633 S.W.2d at 790 (when liability from use or operation of vehicle is excluded, liability from negligent entrustment of vehicle is also excluded because “there would have been no accident in this case without the negligent operation or use of ... [the] vehicle”).

Employers also argues the auto exclusion does not apply because the crash truck was “specialized equipment.” St. Paul’s CGL policy provides that the auto exclusion “won’t apply ... to bodily injury, property damage or medical expenses that result from the ... Operation of specialized equipment.” Specialized equipment is defined in the policy as “cherry picker or similar device used to lift workers; pump, generator or air compressor; or other equipment, such as building cleaning, geophysical exploration, lighting, spraying, welding or well-servicing equipment, that has a built-in pump, generator or air compressor.” In this case, it is undisputed that the crash truck did not have a “cherry picker or similar device used to lift workers,” and the crash truck was not a “pump, generator or air compressor.” Thus the, issue is whether the operation of the crash truck constituted operation of “other equipment, such as building cleaning, geophysical exploration, lighting, spraying, welding or well-servicing equipment, that has a built-in pump, generator or air compressor.”

The crash truck did not constitute “other equipment” under the definition of “specialized equipment.” The types of “other equipment” listed in the definition of “specialized equipment” (building cleaning, geophysical exploration, etc.) are all equipment that participate in the performance of the actual work. The crash truck did not participate in the marking of the road; with its flashing arrow board, the truck warned the traffic of the lane blockage. Employers argues the crash truck was “other equipment” because it must have had a generator for the flashing arrow board and an air compressor for the crash barrier’s pneumatic lift. The record contains no evidence of how the flashing arrow board and crash barrier were powered. However, even if they required electricity and compressed air to operate, the record contains no evidence that the crash truck had “a built-in pump, generator, or air compressor.” (Emphasis added.) We conclude Employers has failed to show the “specialized equipment” exception to the auto exclusion applies to the crash truck.

Employers also argues the auto exclusion does not apply because the crash truck constituted “mobile equipment.” St. Paul’s CGL policy stated, “we won’t consider mobile equipment to be an auto.” The definition of “mobile equipment” in the policy gave specific examples of mobile equipment and then included a catch-all category. The crash truck did not fit any of the specific examples because (1) it was not kept for use only on or next to STI’s premises; (2) it did not travel on crawler treads; (3) it was not kept primarily for the ready movement of permanently attached construction equipment (the flashing arrow board and crash barrier are not “construction equipment” as defined by the policy); and (4) it travels under its own power and is not kept primarily for the ready movement of permanently attached “specialized equipment.”

The catch-all provision for mobile equipment states, “Mobile equipment includes any land vehicle not described above that’s kept primarily for purposes other than carrying people or cargo.” Employers argues the crash truck fits this definition because “the truck traveled under its own power, operated on public roads like a regular auto, and had permanently attached equipment, for purposes of the definition’s exception to its exception, that equipment was designed for use in road resurfacing projects.” However, regardless of whether the flashing arrow board and crash barrier were “equipment designed for use in road resurfacing projects,” the crash truck, with its flatbed and cargo grate, was designed to carry cargo, and nothing in the record shows the crash truck involved in the accident was “kept primarily for purposes other than carrying people or cargo.” We conclude Employers has failed to show the mobile-equipment exception to the auto exclusion applies to the crash truck.

We hold the trial court did not err in granting St. Paul’s motion for summary judgment on the ground that St. Paul’s liability under its CGL policy was precluded by the auto exclusion. Because Employers’ motion for summary judgment was premised on the existence of coverage under St. Paul’s CGL policy, we hold that the trial court did not err in denying Employers’ motion for summary judgment. Since the auto exclusion supports the summary judgment, we need not reach the ground asserting exhaustion of the policy limits. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 475 (Tex.1995).

We affirm the trial court’s judgment.

      . In Warrilow, the underlying parties were riding in a vehicle that got a flat tire. Warrilow, 791 S.W.2d at 517. The defendant was carrying a pistol. The pistol had a defect allowing it to fire when dropped, but the defendant had not repaired the defect. The defendant also had a bullet in the chamber under the hammer, which was shown to be negligent behavior. Id. at 518. The parties got out of the vehicle, and the defendant removed his fully loaded pistol from his holster to set it inside the vehicle while helping to change the tire. Id. at 517. However, the defendant dropped the pistol, which went off, killing the plaintiff. Id. The defendant’s insurance policy excluded coverage for loading and unloading a vehicle or performing maintenance on a vehicle. Id. at 518. The court of appeals concluded coverage was not excluded because the injury to the plaintiff from the defendant’s negligence in not having the pistol repaired and in failing to have an empty chamber under the hammer caused the plaintiff's injury, and these acts of negligence were independent of the act of loading or unloading the vehicle or changing the tire. Id. at 526.


author: Justice FITZGERALD.

text:
    Mark BAILEY, Appellant, v. Angela GARDNER, M.D., Appellee.
    No. 05-04-00914-CV.
    Court of Appeals of Texas, Dallas.
    Feb. 1, 2005.

      Paul D. Rich, Rich & Associates, L.L.C., Dallas, for appellant.
    Michael C. Lawrence, Godwin Gruber P.C., Kirk Willis, Julia F. Pendery, Daon Robbins, Godwin Gruber, LLP, Dallas, for áppellee.
    Before Justices WRIGHT, FITZGERALD, and LANG-MIERS.
   OPINION

Opinion by

Justice FITZGERALD.

Mark Bailey appeals a take-nothing judgment granted in favor of Angela Gardner, M.D. Bailey asserted a health care liability claim against Gardner. Gardner moved for and obtained summary judgment based upon the statute of limitations. In a single issue, Bailey contends the trial court erred in granting Gardner’s motion for summary judgment. For the reasons stated below, we affirm the trial court’s judgment.

Background

On March 12, 2001, when Bailey was seventeen years of age, Bailey’s aunt filed a lawsuit in the 44th Judicial District Court on Bailey’s behalf asserting a medical negligence claim against Gardner. The petition alleged that on March 25, 1999, when Bailey was fifteen years of age, he went to St. Paul Medical Center with pain and swelling in his left testicle. Gardner attended Bailey and prescribed Motrin, stating Bailey had epididymitis. No diagnostic tests were ordered or performed. Bailey was later admitted to Children’s Medical Center, diagnosed with testicular torsion, and had immediate surgery to remove his left testicle. On November 10, 2003, the date of the trial, Bailey requested a continuance because his expert witness was not available. The trial judge denied the request. Bailey filed a motion for nonsuit that same day and the case was dismissed without prejudice. The next day, Bailey, who was now twenty years of age, re-filed the lawsuit in the 14th Judicial District Court, alleging the same medical negligence claims against Gardner.

Gardner filed an answer to the re-filed lawsuit and a motion to transfer the case from the 14th Judicial District Court to the 44th Judicial District Court. The judge of the 14th Judicial District Court granted Gardner’s motion and transferred the case to the 44th Judicial District Court. Gardner and Bailey entered into a Rule 11 agreement stipulating that the evidence from the first lawsuit would be admissible in the re-filed lawsuit. Gardner filed a motion for summary judgment, alleging under civil procedure rule 166a(a) the statute of limitations had expired. The trial court granted summary judgment.

Standard of Review

This Court reviews a summary judgment de novo to determine whether a party’s right to prevail is established as a matter of law. Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex.App.-Dallas 2000, pet. denied). The standards for reviewing motions for summary judgment are well established. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985); Thompson v. Curtis, 127 S.W.3d 446, 449 (Tex.App.-Dallas 2004, no pet.). The movant for summary judgment has the burden of showing there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.2000) (per curiam); Mitchell v. Baylor Univ. Med. Ctr., 109 S.W.3d 838, 840 (Tex.App.-Dallas 2003, no pet.). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. Nixon, 690 S.W.2d at 548-49. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Id.

When a defendant moves for summary judgment on the affirmative defense of limitations, the defendant has the burden of conclusively establishing that defense as a matter of law. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999); Gibson v. Ellis, 126 S.W.3d 324, 331 (Tex.App.-Dallas 2004, no pet.). Once the defendant establishes its right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact, thereby precluding summary judgment. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995); Mitchell, 109 S.W.3d at 840.

Discussion

Bailey acknowledges he nonsuited his original lawsuit and re-filed the suit after the statute of limitations had run. Nonetheless, he argues the circumstances of this case are unusual, and the trial court should have “tempered the harshness of a statute of limitations” as other courts have done in unusual circumstances. Bailey asserts that if not for circumstances beyond his control, this lawsuit would have already proceeded through trial. We understand Bailey’s legal argument to be grounded in the doctrine of equitable tolling.

Gardner responds that because there is nothing unusual in this case that would cause an unjust result, this Court should find the equitable tolling theory is inapplicable. Gardner contends that because Bailey voluntarily nonsuited his lawsuit, then re-filed it after the limitations period had run, his claim is barred as a matter of law. Gardner further argues Bailey failed to show how he was unable to get his expert’s testimony after almost two years, and that he did not exercise due care in preventing the running of the limitations period.

Bailey voluntarily nonsuited Ms original lawsuit on November 10, 2003. He re-filed the lawsuit on November 11, 2003. A lawsuit that is voluntarily abandoned does not interrupt the running of. the statute of limitations. Irwin v. Basham, 507 S.W.2d 621, 625 (Tex.Civ.App.-Dallas 1974, writ ref'd n.r.e.). Thus, Bailey’s voluntary nonsuit is treated as though the first lawsuit had never been filed. See BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 841 (Tex.1990). The statute of limitations began to run on August 14, 2001, when Bailey reached eighteen years of age, and ran without interruption until it expired on October 28, 2003, two years and seventy-five days after his disability was removed. Fourteen days after the statute had run, Bailey re-filed the lawsuit.

Equitable tolling applies in situations where a claimant actively pursued his judicial remedies but filed a defective pleading during the statutory period, or where a complainant was induced or tricked by his adversary’s misconduct into allowing filing deadlines to pass. See Czerwinski v. Univ. of Tex. Health Sch. Ctr. at Houston Sch. of Nursing, 116 S.W.3d 119, 122-23 (Tex.App.-Hous. [14th Dist.] 2002, pet. denied). Bailey relies on the equitable tolling theory articulated in Palmer v. Enserch Corp., 728 S.W.2d 431 (Tex.App.Austin 1987, writ ref'd n.r.e.). Under this theory, statutes of limitation should not apply in situations in which no party is misled or disadvantaged by an error in pleading. Id. at 434. However, this theory has been applied when the wrong defendant is sued and the proper defendant is not named until after the limitations has expired. See Walls v. Travis County, 958 S.W.2d 944, 946 (Tex.App.-Austin 1998, pet. denied). Here, Bailey did not file a defective pleading during the statutory period nor was he tricked by Gardner into allowing the deadline to pass. Instead, Bailey made a tactical decision to nonsuit his case rather than face trial without expert testimony to support his claim. Taking a voluntary nonsuit for tactical advantage will not support an equitable extension of the limitations period. See Irwin, 507 S.W.2d at 625. We conclude equitable tolling does not apply to give Bailey an extension on the limitations period.

Conclusion

Because the limitations period had expired at the time Bailey re-filed the lawsuit, his cause of action was barred as a matter of law unless equitable tolling applies. The circumstances surrounding Bailey’s voluntary nonsuit of his claim do not support application of the doctrine of equitable tolling. Thus, the trial court did not err in granting Gardner’s summary judgment based upon the application of the statute of limitations. Accordingly, .we overrule Bailey’s sole issue on appeal.

We affirm the trial court’s judgment.

      . In casting his issue on appeal, Bailey avers that:
      [T|he Trial Court erred when it granted Defendant’s Motion for Summary Judgment because a genuine issue of material fact exists regarding the Defendant’s cognizance of the relevant facts.
      This formulation addresses only one facet of equitable tolling and thus focuses the limitations analysis much too narrowly. We will treat Bailey’s issue as complaining broadly of the trial court's granting of Gardner's summary judgment motion on limitations grounds in light of Bailey’s equitable tolling argument.


text:
    Keisha Rasheedah NURRIDIN a/k/a Keisha Rena Curry, Appellant, v. The STATE of Texas, Appellee.
    Nos. 05-04-00499-CR to 05-04-00501-CR.
    Court of Appeals of Texas, Dallas.
    Feb. 1, 2005.

      Michael Curtis Lowe, Dallas, for appellant.
    William T. (Bill) Hill, Jr., Laura Anne Coats, Assistant District Attorney, Dallas, for the State.
    Before Justices MORRIS, MOSELEY, and FITZGERALD.
   OPINION NUNC PRO TUNC

Opinion by

Justice FITZGERALD.

This Court’s opinion of January 26, 2005 is withdrawn. The following is the opinion of this Court.

Keisha Rasheedah Nurridin a/k/a Keisha Rena Curry appeals the revocation of community supervision from her conviction for robbery and her two convictions for forgery. Appellant asserts the trial court erred in determining the affirmative defense of the State’s lack of due diligence in apprehending appellant applied only to the allegation that appellant violated her community supervision by failing to report and not to any of the other alleged violations of community supervision. We conclude the trial court correctly interpreted the statute. We affirm the trial court’s judgments.

BACKGROUND

On September 5,1997, appellant pleaded nolo contendere to two charges of forgery, and the trial court sentenced her to two years’ confinement and a $300 fine in each case. The trial court suspended imposition of the term of confinement and placed appellant on community supervision for a two-year term. On April 27, 1998, appellant pleaded guilty to robbery, and the trial court sentenced her to five years’ imprisonment and a $500 fine. The trial court suspended imposition of the term of imprisonment and placed appellant on community supervision for a five-year term. On July 2, 1999 and September 3, 1999, the State filed motions to revoke appellant’s community supervision in the two forgery cases, alleging appellant violated the terms of her community supervision by using marijuana, failing to pay fees, fines, and court costs, failing to perform community service, and failing to report. The trial court issued a capias for appellant on July 2, 1999. On April 7, 2003, the State filed a motion to revoke appellant’s community supervision in the robbery case, alleging appellant violated the terms of her community supervision by using marijuana and failing to report. Appellant was taken into custody on December 23, 2003. On March 18, 2004, the trial court heai*d evidence on the motions to revoke. On March 22, 2004, the trial court announced from the bench that the allegation of failing to report was not true, apparently because the State failed to act with due diligence in apprehending appellant, and that the other allegations were true. The trial court revoked appellant’s community supervision in each case and sentenced her to two years’ imprisonment.

JURISDICTION AFTER EXPIRATION OF COMMUNITY SUPERVISION TERM

Before 2003, article 42.12 of the code of criminal procedure did not expressly provide that a trial court had jurisdiction to revoke a defendant’s community supervision and sentence him after the expiration of the term of community supervision for a violation occurring during the term of community supervision. In Peacock v. State, 77 S.W.3d 285 (Tex.Crim.App.2002), the court of criminal appeals discussed a trial court’s jurisdiction under the law in 2002 to revoke a defendant’s community supervision after the term of community supervision had expired. A trial court could hold a hearing on a motion to revoke community supervision after the term of community supervision had expired. Id. at 287. However, the trial court lacked jurisdiction to revoke community supervision after expiration of the term unless (1) the record showed a motion to revoke was filed and a capias was issued before the community supervision term expired, and (2) the State proved by a preponderance of the evidence that it used due diligence in executing the capias and in holding a hearing on the motion to revoke. Id. at 287-88. The reason for this system of continuing jurisdiction was to prevent a defendant from benefitting by absconding until the expiration of the term of community supervision. Id. at 288. The reason for the requirement that the State prove due diligence was to ensure that the policy of continuing jurisdiction was exercised only in those cases where a defendant was eluding capture. Id. at 289. “Just as the probationer should not benefit from hiding, the State should not benefit by doing nothing meaningful to execute a capias, i.e., if a probationer is not being sought, there is no reason for the court to have continuing jurisdiction.” Id.

In 2003, the legislature indicated it disagreed with the system of continuing jurisdiction created by case law, and it amended article 42.12 to address the trial court’s continuing jurisdiction to revoke community supervision after the expiration of the term of community supervision. See Act of May 30, 2003, 78th Leg., R.S., ch. 250, §§ 2, 3, 2003 Tex. Gen. Laws 1158, 1158 (codified at Tex.Code Crim. PROC. Ann. art. 42.12, §§ 21(e) & 24 (Vernon Supp.2004-05)). To section 21 of article 42.12, the legislature added paragraph (e):

A court retains jurisdiction to hold a hearing under Subsection (b) and to revoke, continue, or modify community supervision, regardless of whether the period of community supervision imposed on the defendant has expired, if before the expiration the attorney representing the state files a motion to revoke, continue, or modify community supervision and a capias is issued for the arrest of the defendant.

Tex.Code CRIM. Proc. Ann. art. 42.12, § 21(e). The legislature also added section 24:

For the purposes of a hearing under Section ... 21(b), it is an affirmative defense to revocation for an alleged failure to report to a supervision officer as directed or to remain within a specified place that a supervision officer, peace officer, or other officer with the power of arrest under a warrant issued by a judge for that alleged violation failed to contact or attempt to contact the defendant in person at the defendant’s last known residence address or last known employment address, as reflected in the files of the department serving the county in which the order of community supervision was entered.

Id. art. 42.12, § 24.

In her single issue on appeal, appellant questions whether the legislature, by enacting section 24, intended to end the “due-diligence defense” as to all allegations of violations of conditions of community supervision except for failing to report or to remain in a specified place.

The overall goal when interpreting a statute is to discern the collective intent or purpose of the legislators who enacted the legislation. Sanchez v. State, 138 S.W.3d 324, 325 (Tex.Crim.App.2004); Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). “[W]e necessarily focus our attention on the literal text of the statute in question and attempt to discern the fair, objective meaning of that text at the time of its enactment.” Boykin, 818 S.W.2d at 785. When reviewing the literal text of the statute, this Court will read the words and phrases of the statute in context and construe them “according to the rules of grammar and common usage.” Tex. Gov’t Code Ann. § 311.011(a) (Vernon 1998). When the meaning of the text of a statute should have been plain to the legislators who voted on it, “we ordinarily give effect to that plain meaning.” Boykin, 818 S.W.2d at 785. ‘Where the statute is clear and unambiguous, the Legislature must be understood to mean what it has expressed, and it is not for the courts to add or subtract from such a statute.” Coit v. State, 808 S.W.2d 473, 475 (Tex.Crim.App.1991) (quoting Ex parte Davis, 412 S.W.2d 46, 52 (Tex.Crim.App.1967)).

Appellant argues section 24 shows the legislature intended to preserve the due-diligence defense and to relax the State’s burden of proof. Appellant asserts that if “the legislature intended for the due diligence defense to apply only to allegation [sic] of not reporting, the bill would have used more limiting language, such as ‘only’ or ‘is limited to.’ ” Appellant then appears to argue that the legislature intended for the affirmative defense to apply to all allegations of violations of community supervision as long as the violations include the failure to report or to remain in a specified place.

We disagree with appellant’s interpretation. The language of section 24 is clear. The affirmative defense applies “to revocation for an alleged failure to report to a supervision officer as directed or to remain within a specified place.” Tex.Code CRIM. Pkoc. Ann. art. 42.12, § 24. The legislature could have used the words “only” or “limited to,” but it did not have to do so.

Appellant’s argument that the affirmative defense applies to all allegations of community supervision violations that include the failure to report or to remain in a specified place lacks merit because section 24 specifically limits the applicability of the affirmative defense to two grounds, the failure to report and the failure to remain in a specified place. Contrary to appellant’s argument, the statute does not state, and cannot reasonably be interpreted to read, that it applies to all allegations as long as one of the allegations is the failure to report or to remain in a specified place.

Appellant also argues the trial court’s interpretation of section 24 would promote revocations based solely upon “technical” violations, which appellant asserts is contrary to the legislature’s intent. Appellant asserts that if section 24’s affirmative defense applies only to allegations for failure to report, “then courts would be free to revoke probations for other technical reasons.” Whether to revoke community supervision is within the discretion of the trial court. Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App.1984); Lee v. State, 952 S.W.2d 894, 897 (Tex.App.Dallas 1997, no pet.). Courts may revoke community supervision for a violation of any condition, including violations of any single “technical” condition. See Allbright v. State, 13 S.W.3d 817, 819 (Tex.App.-Fort Worth 2000, pet. ref'd); Lee, 952 S.W.2d at 900; see also Tex.Code Crim. Proc. Ann. art. 42.12, § 21(b) (if violation found, court may continue, extend, modify, or revoke community supervision). Appellant’s assertion lacks merit.

We conclude the plain, unambiguous language of section 24 makes clear that this affirmative defense applies only to revocations on the grounds of failing to report or to remain in a specified place. We resolve appellant’s issue against her.

We affirm the trial court’s judgments.

      . The Senate Criminal Justice Committee explained the purpose of the bill:
      Current case law requires the state to “exercise due diligence” to apprehend a defendant for violating probation including for absconding. The state is penalized if it does not continually, until the defendant is apprehended, make efforts to locate the absconder. Some feel that the defendant, who has been given a second chance by being placed on probation, should have the responsibility to comply with all terms and conditions of probation and not have as a possible result the dismissal of the state’s motion to revoke probation. C.S.H.B. 1634 ensures the ability of a court to maintain jurisdiction over a person who absconds while on probation.
      Senate Criminal Justice Comm., Bill Analysis, Tex. H.B. 1634, 78th Leg., R.S., 2003. The House Committee on Criminal Jurisprudence used similar language to explain the purpose of the bill:
      Current case law requires the state to "exercise due diligence” to apprehend a defendant for violating his probation. As the law stands now, the defendant is rewarded for not complying with the terms and conditions of his probation by absconding. The state is penalized if it does not continually, until the defendant is apprehended, make efforts to locate the absconder. The defendant, who has been given a second chance by being placed on probation, should have the responsibility to comply with all terms and conditions of probation and not be rewarded with a dismissal of the state’s motion to revoke probation when he absconds. C.S.H.B. 1634 ensures the ability of a court to maintain jurisdiction over a person who absconds while on probation.
      House Criminal Jurisprudence Comm., Bill Analysis, Tex. H.B. 1634, 78th Leg., R.S., 2003.


text:
    Linda Jo WHALEY, Appellant, v. COUNTY OF DALLAS, City of Dallas, Dallas Independent School District, Dallas County School Equalization Fund, Dallas Community College District, and Parkland Hospital District, Appellees.
    No. 05-04-00469-CV.
    Court of Appeals of Texas, Dallas.
    Feb. 2, 2005.

      Richard C. Jenkins, Dallas, for appellant.
    Pamela Pope Johnson, Linebarger, Gog-gan, Blair, Pena & Sampson, L.L.P., Dallas, for appellees.
    Before Justices MOSELEY, FRANCIS, and MAZZANT.
   OPINION

Opinion by

Justice MAZZANT.

The Court has received the parties’ joint motion for entry of judgment, requesting the trial court’s judgment be reversed and the case remanded to the trial court for entry of an agreed final judgment. The parties agree to bear their own costs, including attorneys’ fees. The Court prefers not to reverse trial court judgments without consideration of the merits.

Accordingly, without consideration of the merits, we VACATE the trial court’s judgment, and we REMAND this case to the trial court for further proceedings in accordance with the parties’ agreement. We ORDER each party to bear its own costs on appeal. See Tex.R.App. P. 42.1(a)(1).


author: Justice WRIGHT.

text:
    E. Eileen HARLEAUX, Appellant v. Lionel J. HARLEAUX, Appellee.
    No. 05-04-00188-CV.
    Court of Appeals of Texas, Dallas.
    Feb. 7, 2005.

      Michelle May, The May Firm, and Bradford Winston Nace, Brad Nace & Associates, Dallas, for Appellant.
    E. Eileen Harleaux, pro se.
    William Emil Minkley, Law Offices of William E. Minkley, Dallas, for Appellee.
    Before Justices WRIGHT, FITZGERALD, and LANG-MIERS.
   OPINION

Opinion by

Justice WRIGHT.

E. Eileen Harleaux appeals the trial court’s order requiring attorney’s fees and interest to be paid out of the homestead proceeds held in the registry of the court. In three issues, appellant contends the trial court (1) abused its discretion by awarding sanctions without conducting an evidentiary hearing; (2) lacked legal authority to convert a judgment for attorney’s fees into a sanctions order; and (3) lacked legal authority to order the attorney’s fees to be paid out of the proceeds from the sale of the parties’ homestead. Because the trial court erred by ordering the attorney’s fees to be paid from homestead proceeds, we reverse that portion of the trial court’s order.

Background

Following a meditated agreement, the trial court entered a decree of divorce between appellant and appellee. As part of the agreement, appellant remained in the couple’s homestead, but she was required to perform certain obligations relating to the sale of the home. When she did not do so, appellee filed a motion for enforcement. After a hearing, the trial court granted appellee’s motion for enforcement, appointed a receiver, ordered the property sold, and ordered appellant to pay appellee $6000 for attorney’s fees. Appellee later filed a motion for sanctions, asking the trial court to authorize the previously awarded judgment for attorney’s fees to be paid out of the homestead proceeds held in the registry of the court. The trial court granted appellee’s request, and ordered the judgment awarding attorney’s fees be paid from the homestead proceeds “as sanctions and as a part of the division of the homestead interest in the property.” This appeal followed.

Discussion

Appellant briefed her second and third issues together. Likewise, we will consider these issues together. To address appellant’s complaints under these issues, we must decide whether the trial court had the authority to order the attorney’s fees to be paid out of the proceeds from the sale of the parties’ homestead. We conclude it did not, whether characterized as a part of the division of the homestead interest in the property or as a sanction.

The homestead is given special protections in the Texas Constitution. Tex. Const, art. XVI, § 50. The homestead is generally protected from all debts, except those listed in article XVI, section 50 which deal with secured debts or tax liens. See Tex. Const, art. XVI, § 50; Boudreaux Civic Ass’n v. Cox, 882 S.W.2d 543, 547 (Tex.App.-Houston [1st Dist.] 1994, no pet.). Homestead proceeds retain their homestead characteristics for six months after the release of the funds from the registry of the court. Tex. PROp.Code Ann. § 41.001(c) (Vernon Supp.2004-05). Because of these homestead protections, the trial court may not order that the proceeds from the sale of the parties’ homestead be used to extinguish the liabilities due unsecured, or general, creditors. In the Matter of the Marriage of Banks, 887 S.W.2d 160, 164 (Tex.App.-Texarkana 1994, no pet.). Attorney’s fees are such liabilities. Id. Thus, to order payment of the attorney’s fees from the proceeds from the sale of the house circumvents the constitutional and statutory provisions protecting the homestead and its proceeds. In re Garza, 153 s.W.3d 97, 102 (Tex.App.-San Antonio 2004, n.p.h.); Banks, 887 S.W.2d at 160; McIntyre v. McIntyre, 722 S.W.2d 533, 538 (Tex.App.-San Antonio 1986, no writ).

Having determined it is not proper to award attorney’s fees to be paid from the homestead proceeds, we must next decide whether characterizing the award of attorney’s fees as either a part of the division of the homestead interest in the property or as a sanction changes our conclusion.

We begin with the first of the trial court’s characterizations — as a division of the homestead interest in the property. In its disposition of marital property, the trial court must divide the marital estate in a manner the court determines just and right, having regard for the rights of each party and any children of the marriage. Tex. Fam.Code Ann. § 7.001 (Vernon 1998). Attorney’s fees are one factor to be considered by the trial court in making an equitable division of the estate. Roever v. Roever, 824 S.W.2d 674, 676 (Tex.App.-Dallas 1992, no writ). However, property adjudications in a divorce decree become final the same as other judgments relating to title and possession of property. Schwartz v. Jefferson, 520 S.W.2d 881, 887 (Tex.1975). Consequently, after the trial court’s plenary power expires, the trial court may not alter, amend, or modify the substantive division of the property in the final decree. See Tex. Fam.Code Ann. § 9.007 (Vernon 1998); Garza, at 102. Thus, even assuming the trial court could properly alter the parties’ agreement regarding the division of property, it could not do so on November 21, 2003 — well after the trial court’s plenary power over the May 18, 2000 divorce decree expired. See id.

The trial court’s order also characterized the award of attorney’s fees as a sanction. Every court having jurisdiction to render a judgment has the inherent power to enforce its judgments. Arndt v. Farris, 633 S.W.2d 497, 499 (Tex.1982); Greiner v. Jameson, 865 S.W.2d 493, 499 (Tex.App.-Dallas 1993, writ denied). That power is part of the court’s jurisdiction, and the court may employ suitable methods to enforce its jurisdiction. Greiner, 865 S.W.2d at 499. However, although the trial court has broad discretion in the methods it employs to enforce its judgments, that power is not without limitation. Id.

Here, the trial court converted the existing judgment for attorney’s fees into a sanction and ordered it to be paid from the homestead proceeds in an attempt to ensure appellee did not have to pay attorney’s fees for the enforcement proceeding from his share of the community. Appel-lee does not cite a case, nor can we find one, that allows a trial court to convert an existing judgment into a sanction in order to circumvent well-established law precluding the court from ordering payment of attorney’s fees from homestead proceeds. While we sympathize with the tidal court’s motives, nevertheless, we must conclude that converting the judgment into a sanction circumvents the constitutional and statutory provisions protecting the homestead and its proceeds. Therefore, it cannot be utilized as a means to enforce the trial court’s previous judgment for attorney’s fees. Thus, we conclude the trial court abused its discretion by doing so. We sustain appellant’s second and third issues. Having done so, we need not address appellant’s first issue.

Because the trial court could not properly award the payment of attorney’s fees from the homestead proceeds, and characterizing the attorney’s fees as a part of the division of the homestead interest in the property or as a sanction does not change that conclusion, we reverse that portion of the trial court’s November 21, 2003 order and render that portion of the order deleted. In all other respects, the trial court’s November 21, 2003 order is affirmed.