Lea Percy McLaurin v. Scott Sutton McLaurin ( 2015 )

ACCEPTED
01-14-00710-cv
FIRST COURT OF APPEALS
HOUSTON, TEXAS
2/2/2015 8:58:23 PM
CHRISTOPHER PRINE
CLERK
NO. 01-14-00710-CV
FILED IN
1st COURT OF APPEALS
IN THE COURT OF APPEALS HOUSTON, TEXAS
FOR THE FIRST JUDICIAL DISTRICT OF TEXAS AT HOUSTON
2/2/2015 8:58:23 PM
CHRISTOPHER A. PRINE
Clerk
LEA PERCY MCLAURIN,
APPELLANT
v.
SCOTT SUTTON MCLAURIN,
APPELLEE
On appeal from the 309th Judicial District Court
Harris County, Texas | Cause No. 2009-06775
APPELLANT’S BRIEF
Respectfully submitted,
LAW OFFICE OF DANIEL J. LEMKUIL LAW OFFICE OF JANICE L. BERG
Daniel J. Lemkuil Janice L. Berg
State Bar No. 00789448 State Bar No. 24064888
1314 Texas Avenue, Suite 1515 1314 Texas Avenue, Suite 1515
Houston, Texas 77002 Houston, Texas 77002
Telephone: 713-993-9100 Telephone: 713-993-9100
Facsimile: 713-225-0099 Facsimile: 713-225-0099
daniel_lemkuil@flash.net janice@janiceberglaw.com
ATTORNEYS FOR APPELLANT
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Appellant/Movant
LEA PERCY McLAURIN (former wife)
Representing Appellee at Trial:
Daniel J. Lemkuil
State Bar No. 00789448
1314 Texas Avenue, Suite 1515
Houston, Texas 77002
Telephone: (713) 993-9100
Facsimile: (713) 225-0099
daniel_lemkuil@flash.net
Representing Appellant on Appeal:
Daniel J. Lemkuil Janice L. Berg
State Bar No. 00789448 State Bar No. 24064888
1314 Texas Avenue, Suite 1515 1314 Texas Avenue, Suite 1515
Houston, Texas 77002 Houston, Texas 77002
Telephone: (713) 993-9100 Telephone: (713) 993-9100
Facsimile: (713) 225-0099 Facsimile: (713) 225-0099
daniel_lemkuil@flash.net janice@janiceberglaw.com
Respondent
HON. SHERI Y. DEAN
Judge of 309th Judicial District Court of Harris County, Texas
Appellee/Respondent
SCOTT SUTTON McCLAURIN (former husband)
Representing Appellant at Trial:
Richard L. Flowers, Jr.
State Bar No. 07180500
5020 Montrose Boulevard, Suite 700
Houston, Texas 77007
Telephone: (713) 654-1415
Facsimile: (713) 654-9898
service@rflowerslaw.com
ii
Representing Appellee on Appeal:
Todd M. Frankfort
State Bar No. 00790711
5020 Montrose Boulevard, Suite 700
Houston, Texas 77007
Telephone: (713) 654-1415
Facsimile: (713) 654-9898
todd@rflowerslaw.com
iii
TABLE OF CONTENTS
Identity of Parties and Counsel ................................................................................. ii
Table of Contents ..................................................................................................... iv
Index of Authorities ................................................................................................ vii
Statement of the Case................................................................................................ x
Statement Regarding Oral Argument........................................................................ x
Appellee’s Issues Presented ..................................................................................... xi
Issue 1:
The trial court erred in granting sanctions as the case was
neither frivolous nor brought in bad faith. The pre-trial
investigation made was adequate. The entry of the findings
and resulting order are contrary to the evidence and are, thus,
an abuse of discretion. ........................................................................ xi
Issue 2:
The imposition of a date and time certain for the payment of
the sanctions award was an abuse of discretion, as the court
has no authority or jurisdiction to compel a party to pay a
debt. .................................................................................................... xi
Issue 3:
The trial court erred in denying Lea’s requested relief. The
take-nothing judgment rendered by the trial court was
contrary to the great weight and preponderance of the
evidence and was, therefore, an abuse of discretion. ......................... xi
Statement of Facts ..................................................................................................... 1
A.
First Enforcement .................................................................................. 1
B.
Second Enforcement .............................................................................. 1
C.
Lea amends her Enforcement Motion prior to trial ............................... 2
D.
Remaining issues at trial ........................................................................ 3
iv
E.
Judge denies Lea’s requested relief and sanctions her more than
$50,000 in attorney’s fees .................................................................. 3
F.
Judge incarcerates Lea for failure to pay the sanctions by a date
certain................................................................................................. 4
Summary of the Argument........................................................................................ 4
Argument and Authorities......................................................................................... 5
I.
The trial court erred in granting sanctions against Lea. The suit was
neither frivolous nor brought in bad faith. The pre-trial
investigation made was adequate. The entry of findings of fact and
the order are contrary to the evidence and are, thus, an abuse of
discretion (ISSUE 1) ................................................................................ 5
A.
Rule 13 Sanctions .................................................................................. 5
B.
Section 10.004 Sanctions ....................................................................... 7
C.
Challenges to separately filed Findings of Fact (CR 34) ....................... 9
D.
Challenges to Sanctions Order ............................................................ 22
II.
Trial court abused its discretion by including a due date for the
judgment to be paid (ISSUE 2) .............................................................. 28
III.
The trial court abused its discretion by denying Lea’s requested
relief. The great weight and preponderance of the evidence
supported enforcement of the property division on the issue of
bonuses and the diamond (ISSUE 3). ................................................... 29
A.
Bonuses/Reimbursements .................................................................... 29
B.
Brannon Diamond ................................................................................ 30
Prayer ...................................................................................................................... 30
Certificate of Word Count Compliance .................................................................. 32
v
Certificate of Service .............................................................................................. 32
vi
INDEX OF AUTHORITIES
Cases
American Flood Research, Inc. v. Jones, 192 S.W.3d 581 (Tex. 2006) ............... 8, 9
Attorney General of Texas v. Cartwright, 874 S.W.2d 210 (Tex. App.—Houston
[14th Dist.] 1994, writ denied) .............................................................................. 7
Ball v. Rao, 48 S.W.3d 332 (Tex. App.—Forth Worth 2001, pet. denied) .............. 7
Busby v. Dow Chem. Co., 931 S.W.2d 18 (Tex. App.—Houston [1st Dist.] 1996,
no writ) .................................................................................................................. 6
Campos v. Ysleta Gen. Hosp. Inc. 879 S.W.2d 67 (Tex. App—El Paso 1994, writ
denied)................................................................................................................... 6
Downer v. Aquamarine Operators, Inc. 701 S.W.2d 238 (Tex. 1985) ................... 20
Elkins v. Stotts-Brown, 103 S.W.3d 664 (Tex. App.—Dallas 2003, no pet.) ........... 6
Falk & Mayfield L.L.P. v. Molzan, 974 S.W.2d 821 (Tex. App.—Houston [14th
Dist.] 1998, pet. denied) ........................................................................................ 6
Highland Church of Christ v. Powell, 640 S.W.2d 235 (Tex. 1982)...................... 28
Home Owners Funding Corp. of Am. v. Scheppler, 815 S.W.2d 884 (Tex. App.—
Corpus Christi 1991, no writ.) ............................................................................ 20
In re Y.B., 300 S.W.3d 1 (Tex. App.—San Antonio 2009, pet. denied) ................... 7
Jenkins v. Henry C. Beck Company, 449 S.W.2d 454 (Tex. 1969) ........................ 29
vii
Jimenez v. Transwestern Prop. Co., 999 S.W.2d 125 (Tex. App.—Houston [14th
Dist.] 1999, no pet.) ............................................................................................ 22
Laub v. Pesikoff, 979 S.W.2d 686 (Tex. App.—Houston [1st Dist.] 1998, pet.
denied)................................................................................................................. 20
Monroe v. Grider, 884 S.W.2d 811 (Tex. App.—Dallas 1994, writ denied) ........... 6
Ochsner v. Ochsner, No. 14-11-00395-CV; 2012 WL 1854743 (Tex. App. [14th
Dist.] May 22, 2012, no pet.) ................................................................................ 8
Paradigm Oil, Inc. v. Retamco Oper., Inc., 372 S.W.3d 177 (Tex. 2012) ............... 8
Rudisell v. Paguette, 89 S.W.3d 233 (Tex. App.—Corpus Christi 2002, no pet.) . 21
Tarrant County v. Chancey, 942 S.W.2d 151 (Tex. App.—Fort Worth 1997, no
pet.) ....................................................................................................................... 6
Thelemann v. Kethan, 371 S.W.3d 286 (Tex. App.—Houston [1st Dist.] 2012, pet.
denied)................................................................................................................. 20
Thompson v. Davis, 901 S.W.2d 939 (Tex. 1995) .................................................. 27
University of Texas v. Bishop, 997 S.W.2d 350 (Tex. App.—Fort Worth 1999, pet.
denied)................................................................................................................. 21
Statutes
Tex. Civ. Prac. & Rem. Code § 10.001 .................................................................... 7
Tex. Civ. Prac. & Rem. Code § 10.004 .................................................................... 7
viii
Rules
Tex. R. Civ. P. 13 ...................................................................................... 5, 6, 21, 22
ix
STATEMENT OF THE CASE
Nature of the case: Former wife moved to enforce the property division
contained in a Final Decree of Divorce. Former husband
answered and sought sanctions against former wife for
frivolous filing.
Course of A multi-day bench trial was held on the enforcement motion.
proceedings:
Trial court The trial court rendered judgment denying all of former
disposition wife’s requested relief and granted as sanctions a judgment
against former wife for more than $50,000 in attorney’s fees.
STATEMENT REGARDING ORAL ARGUMENT
Appellant, Lea Percy McLaurin, respectfully requests the opportunity to
present oral argument. Oral argument would significantly aid the Court in deciding
this case by providing additional explanation of the facts and issues presented. See
Tex. R. App. P. 38.1(e), 39.1(d).
x
APPELLEE’S ISSUES PRESENTED
Issue 1: The trial court erred in granting sanctions as the case was neither
frivolous nor brought in bad faith. The pre-trial investigation
made was adequate. The entry of the findings and resulting order
are contrary to the evidence and are, thus, an abuse of discretion.
Issue 2: The imposition of a date and time certain for the payment of the
sanctions award was an abuse of discretion, as the court has no
authority or jurisdiction to compel a party to pay a debt.
Issue 3: The trial court erred in denying Lea’s requested relief. The take-
nothing judgment rendered by the trial court was contrary to the
great weight and preponderance of the evidence and was,
therefore, an abuse of discretion.
xi
Appellant, Lea Percy McLaurin, submits the following Appellant’s Brief.
Appellant asks this Court to reverse the judgment of the trial court and remand for
a new trial. In support, Appellant offers as follows:
STATEMENT OF FACTS
Lea Percy McLaurin and Scott Sutton McLaurin were divorced on
September 3, 2010. (7RR, Exhibit P-1). The property division was substantively
disposed of in an Agreement Incident to Divorce (AID). (7RR, Exhibit P-2).
A. First Enforcement
On January 4, 2011, Lea filed a motion to enforce certain terms of the
property division contained in the AID. (2RR 57, ln. 21 to 58, ln. 1). On February
1, 2011, a specific demand for the requested property was provided to counsel in
anticipation of a meeting to discuss the case. (7RR, Exhibit R-25). After that
meeting, the January 4, 2011 enforcement was nonsuited.
B. Second Enforcement
In March 2011, having narrowed the issues since the first motion was
nonsuited, Lea filed a second motion to enforce. (7RR, Exhibit R-55; 3RR 59, ln.
20 through 61, ln. 2). At the time that suit was filed the following major property
issues remained:
1. Scott had not signed a quitclaim deed for a piece of real property
located in Oklahoma (RR. P. 56, line 13 - p. 57. line 9; RR; Finding of
1
Fact 23 and 24). This issue was later abandoned after Scott signed a
quitclaim deed.
2. Lea’s portion of the Lincoln investment account had not been
transferred. (7RR, Exhibit R-55, Exhibit A, p. 2; Finding of fact no.
27). This issue was later abandoned after Lea’s portion had been
transferred.
3. The bonds awarded to Lea in the divorce had not been transferred.
(2RR 63, ln. 23 – 64, ln. 1; Finding of Fact 13). This issue was later
abandoned after the bonds had been transferred.
4. The Patrick Brannon diamond awarded to Lea had not been
surrendered. (6RR 72, ln. 1-6; 2RR 54, ln. 17-20; 3RR 11, ln. 21- p.
12, ln. 20; Finding of Fact 15). This issue remained at trial.
5. Lea was still owed bonuses and reimbursement received by Scott.
(5RR 125, ln. 13-16). This issue remained at trial.
6. Numerous personal property items had not been surrendered to Lea.
(2RR 67, ln. 12 –68, ln. 8; Finding of Fact 18; 3RR 13, ln. 24 - 17, ln.
5). This issue was later abandoned after the personal property items
had been surrendered to Lea.
All these issues were covered in the demand letter sent to Scott’s counsel
prior to the nonsuit and prior to filing the suit at bar. (7RR, Exhibit R- 25).
C. Lea amends her Enforcement Motion prior to trial
Movant amended her original motion for enforcement three times prior to
trial. After the suit was filed, Scott finally complied with certain terms of the
property division (as described above), and Lea was able to get some of the
property identified in her enforcement. For example, Lea was successful in
2
obtaining all of the bonds she had been entitled to (3RR 14). As various issues
became moot, Lea amended her pleadings.
Respondent’s live pleading at trial was the Second Amended Answer to
Amended Motion to Enforce. (CR 3).
D. Remaining issues at trial
As explained above, several of the claims contained in earlier pleadings
were abandoned by the time of trial. Two issues remained: (1) the division of
bonuses and reimbursements received by Scott, and (2) the transfer of a diamond.
(7RR, Exhibit R-55). It was undisputed that, as of the time of trial, neither the
diamond nor the bonuses had been tendered to Lea. (6RR 72, ln. 1-6; 5RR 125 ln.
13-16).
E. Judge denies Lea’s requested relief and sanctions her more than
$50,000 in attorney’s fees
On March 3, 2014, the trial court issued its rendition.
On April 8, 2014, the trial court signed its Final Judgment on Lea Percy
McLaurin’s Motion to Enforce and Scott Sutton McLaurin’s Motion for Sanctions
and Bad Faith Filing (the “Final Judgment”). (CR 12, Appendix 1). The Final
Judgment denies all of Lea’s requested relief. (CR 13). The Final Judgment also
grants a judgment against Lea for attorney’s fees in the amount of $52,378.88. The
trial court ordered the sanctions to be paid by 3:00 p.m. on June 12, 2014. (CR 15).
3
The trial court’s order specified that the sanctions were imposed as
punishment for Lea’s Fourth Amended enforcement petition. (CR 27, last
paragraph).
Lea timely requested findings of fact. (CR 17). The trial judge signed
findings on July 7, 2014. (CR 34-38)
This appeal was timely filed. (CR 62)
F. Judge incarcerates Lea for failure to pay the sanctions by a date
certain
While this appeal was pending, Scott moved the trial court to enforce the
attorney’s fees sanction by holding her in contempt and committing her to jail. (See
also Petition for Writ of Habeas Corpus filed by Lea on November 14, 2014, in
No. 01-14-00920-CV). The trial court granted Scott’s motion and incarcerated Lea.
Id. This incarceration for failure to pay a debt is the subject of the pending petition
for writ of habeas corpus filed by Lea on November 14, 2014. This Court ordered
that Lea be released from custody pending determination of the petition. As of the
date of this brief, this Court has not yet ruled on the petition.
SUMMARY OF THE ARGUMENT
The trial court abused its discretion by granting sanctions against Lea
because her suit was neither groundless nor brought for an improper purpose. Lea
had a good faith basis for her claims and made a reasonable inquiry prior to filing.
4
Lea did not bring her claims to harass but to enforce and/or clarify the terms of the
divorce and to ensure a proper transfer of the estate. The entry of the findings and
resulting order are contrary to the evidence before the trial court.
The trial court improperly imposed a date certain for the sanctions to be
paid. Forcing a party to pay a money judgment prior to the disposition of an appeal
forces the judgment debtor to waive his appellate issues. Moreover, a trial court
has no authority to incarcerate a person for failure to pay a debt.
The trial court improperly denied Lea’s requested relief. The great weight
and preponderance of the evidence at trial demonstrated that Lea was entitled to
relief on her claims for bonuses and the Brannon diamond. The trial court’s ruling
otherwise was an abuse of discretion.
ARGUMENT AND AUTHORITIES
I. The trial court erred in granting sanctions against Lea. The suit was
neither frivolous nor brought in bad faith. The pre-trial investigation
made was adequate. The entry of findings of fact and the order are
contrary to the evidence and are, thus, an abuse of discretion (ISSUE 1)
A. Rule 13 Sanctions
In evaluating an allegation of a Rule 13 violation, “courts shall presume that
pleadings, motions, and other papers are filed in good faith.” Tex. R. Civ. P. 13.
Rule 13 requires the trial court to hold an evidentiary hearing to make the
necessary factual determination about the motives and credibility of the person
5
signing the allegedly groundless petition. Busby v. Dow Chem. Co., 931 S.W.2d
18, 21 (Tex. App.—Houston [1st Dist.] 1996, no writ). Rule 13 provides for
sanctions if a party files a pleading that is either (1) groundless and brought in bad
faith or (2) groundless and brought to harass. Tex. R. Civ. P. 13. Importantly,
both bases require the document to be groundless.
The trial court must examine the circumstances existing when the litigant
filed the pleadings to demine whether Rule 13 sanctions are proper. Monroe v.
Grider, 884 S.W.2d 811, 817 (Tex. App.—Dallas 1994, writ denied). Bad faith
does not exist when a party exercises bad judgment or even negligence. Rather, “it
is the conscious doing of a wrong for dishonest, discriminatory, or malicious
purposes.” Falk & Mayfield L.L.P. v. Molzan, 974 S.W.2d 821, 828 (Tex. App.—
Houston [14th Dist.] 1998, pet. denied) (quoting Campos v. Ysleta Gen. Hosp. Inc.
879 S.W.2d 67, 71 (Tex. App—El Paso 1994, writ denied)). Courts must presume
that papers are filed in good faith, and the party moving for sanctions bears the
burden of overcoming this presumption. See Tarrant County v. Chancey, 942
S.W.2d 151, 154 (Tex. App.—Fort Worth 1997, no pet.). Improper motive is an
essential element of bad faith. Elkins v. Stotts-Brown, 103 S.W.3d 664, 669 (Tex.
App.—Dallas 2003, no pet.).
“Groundless” as used in Rule 13 means “there is no arguable basis for the
cause of action.” Attorney General of Texas v. Cartwright, 874 S.W.2d 210, 215
6
(Tex. App.—Houston [14th Dist.] 1994, writ denied). Texas courts have
consistently held that when the underlying claim or assertion has merit and
evidentiary support, it is an abuse of the trial court’s discretion to impose
sanctions. See In re Y.B., 300 S.W.3d 1, 5-6 (Tex. App.—San Antonio 2009, pet.
denied) (holding that the underlying claim had merit and, therefore, trial courts
imposition of sanctions finding that underlying claim was groundless, brought in
bad faith and for the purposes of harassment was an abuse of discretion). Ball v.
Rao, 48 S.W.3d 332, 336-338 (Tex. App.—Forth Worth 2001, pet. denied)
(holding that imposition of sanctions was abuse of discretion because claims had
evidentiary support and were, therefore, not baseless, frivolous, or groundless).
B. Section 10.004 Sanctions
Texas Civil Practice and Remedies Code section 10.004 allows sanctions if a
motion or pleading signed by a person (1) is presented for an “improper purpose,”
including harassment or to unnecessarily delay or increase the expense of
litigation; (2) contains a legal contention that was not warranted by existing law or
non-frivolous argument for modification, extension or reversal of current law; (3)
contains factual contentions that are not supported by evidence, or is unlikely to
have evidentiary support after discovery; or (4) contains denials not warranted by
the evidence. Tex. Civ. Prac. & Rem. Code §§ 10.001, 10.004 (West 2002),
7
Ochsner v. Ochsner, No. 14-11-00395-CV; 2012 WL 1854743 (Tex. App. [14th
Dist.] May 22, 2012, no pet.).
Scott failed to demonstrate that Lea was not entitled to any one item
requested at the time it was requested. The relevant inquiry is when the pleading
was filed. There was no evidence that the suit was brought for an improper
purpose. Lea had a right to enforce the property division. There is no evidence that
the pleading contained a legal contention that was not warranted by existing law or
non-frivolous argument for modification, extension, or reversal of current law.
Lea’s claims were authorized by the Texas Family Code. There is no evidence that
the pleadings contained factual contentions that were not supported by evidence or
are unlikely to have support after discovery. There was no evidence that the
pleading contained denials not warranted by the evidence. Therefore, there was no
basis for the trial court to impose sanctions under Rule 13 of the Texas Rules of
Civil Procedure or Chapter 10 of the Civil Practices and Remedies Code.
Sanctions must be “just.” Paradigm Oil, Inc. v. Retamco Oper., Inc., 372
S.W.3d 177, 184 (Tex. 2012). Sanctions should be directly related to the offensive
conduct. Id. A just sanction must be directed against the abuse and toward
remedying the prejudiced caused to the innocent party. American Flood Research,
Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006). Sanctions should be no more
severe than necessary to promote full compliance with the rules. Paradigm Oil,
8
372 S.W.3d at 187. Courts should consider the least-stringent sanction necessary to
promote compliance. American Flood, 192 S.W.3d at 583.
In this case, the sanction is excessive and not “just.” Lea was sanctioned
with a judgment against her of more than $50,000 in attorney’s fees. This does not
have any direct relationship to the conduct complained of. Moreover, there is no
evidence that Lea’s claims were groundless or brought in bad faith or for an
improper purpose. In addition, at the time her original motion was filed, she had a
good faith basis for each allegation. As the litigation progressed and issues became
moot, Lea amended her pleadings and proceeded to trial on only the last two
remaining issues. Sanctions are imposed to protect the innocent party. Scott was
not innocent in this case. It was undisputed at the time of trial that Lea was owed
money for reimbursements and a diamond.
C. Challenges to separately filed Findings of Fact (CR 34)
The trial court entered findings of fact and conclusions of law (CR 34) and
also included findings in the sanctions order (CR 26). Appellant challenges both
sets of findings. Appellant’s challenges to the separately filed findings of fact are
as follows:
Finding of fact no. 3 states:
3. In March 2011, Lea filed a Motion to Enforce Final Decree of
Divorce and Agreement Incident to Divorce (the “Enforcement”), in
which she:
9
A. Sought to enforce the provision of the Decree and AID,
awarding Lea the diamond given to wife by Patrick Brannan,
which was located in a safe deposit box at Chase Bank,
Medical Center location,
B. Sought to enforce the provision of the Decree and AID,
awarding Lea the coins belonging to Lea or Christopher
McLaurin, which was located at a safe deposit box at Chase
Bank, Medical Center location;
C. Sought to enforce the provision of the Decree and AID,
awarding Lea certain real property located in Payne County,
Oklahoma;
D. Sought to enforce the provisions of the Decree and AID,
awarding Lea the First Colony Life Insurance Policy, No.
5164362;
E. Sought to enforce the provision of the Decree and AID,
awarding Lea a portion of the Lincoln Investments account
ending in 0305,
F. Sought to enforce the provisions of the Decree and AID,
awarding Lea certain United States Savings Bonds, in Scott’s
possession;
G. Sought to enforce the provision of the Decree and AID,
awarding Lea a 2006 Lexus GX470.
H. Sought to enforce the provision of the Decree and AID,
awarding Lea “fifty percent (50%) net of taxes of ANY bonuses
or reimbursements received by Husband through April 30,
2010”;
I. Sought to enforce the provision of the Decree and AID,
awarding Lea the contents of the safe deposit boxes at BBVA
Compass and Wells Fargo Bank.
10
J. Sought to enforce the provisions of the Decree and AID,
awarding Lea various Christmas ornaments, Gibson plates,
stuffed animals, and family photographs and videos
(collectively, the “Personal Property”).
K. Brought a cause of action for conversion against Scott; and
L. Sought recovery of her attorney’s fees.
(CR 34-35).
Response: There was no evidence presented of the substance of the March 2011
petition or nature of the case. Neither the clerk’s record nor the reporter’s record
contains such a motion.
Finding of fact no. 4 states:
4. On November 9, 2012, Lea served on Scott’s counsel of record a First
Amended Motion to Enforce Final Decree of Divorce and Agreement
Incident to Divorce (the “1st Amended Enforcement”), in which she
restated the allegations contained in Enforcement.
(CR 35).
Response: There was no evidence presented as to the allegations and date of the
“First Amended Motion to Enforce”.
5. On March 6, 2013, Lea served upon Scott’s counsel her Second
amended Motion to Enforce Final Decree of Divorce and Agreement
Incident to Divorce (“2” Amended Enforcement”) in which she
abandoned all prior allegations, EXCEPT for those in which she:
A. Sought to enforce the provision of the Decree and AID,
awarding Lea the diamond given to wife by Patrick Brannan,
which was located in a safe deposit box in Chase Bank,
Medical Center location;
11
B. Sought to enforce the provisions of the Decree and AID,
awarding Lea certain United States Savings Bonds, in Scott’s
Possession;
C. Sought to enforce the provision of the Decree ad AID, awarding
Lea “fifty percent (50%) net of taxes of ANY bonuses or
reimbursements received by Husband through April 30, 2010”.
D. Brought a cause of action for conversion against Scott; and
E. Sought recovery of her attorney’s fees.
Response: There is no evidence as to the allegations and date of the “Second
Amended Motion to Enforce”.
Finding of fact no. 6 states:
6. On March 18, 2013, Lea served upon Scott’s counsel her Third
Amended Motion to Enforce Final Decree of Divorce and Agreement
Incident to Divorce (“3rd Amended Enforcement”), in which she
restated those allegations contained in the 2nd Amended Enforcement.
Response: There is no evidence as to the allegations and date of the “Third
Amended Motion to Enforce”. No such motion appears in the record.
As for findings 3, 4, 5, and 6 above, there were no sanctions granted on these
pleadings. The sanctions order does complain of any of those filings. Nor were
those filings presented into evidence.
Finding of fact no. 7 states:
7. On March 27, 2013, Lea served upon Scott’s counsel her Fourth
Amended Motion to Enforce Final Decree of Divorce and Agreement
12
Incident to Divorce (“4” Amended Enforcement”), in which she
abandoned all prior allegations, EXCEPT for those in which she:
A. Sought to enforce the provision of the Decree and AID,
awarding Lea the diamond given to wife by Patrice Brannan,
which was located in a safe despot box at Chase Bank, Medical
Center location,
B. Sought to enforce the provision of the Decree and AID,
awarding Lea “fifty percent (50%) net of taxes of ANY bonuses
or reimbursements received by Husband through April 30,
2010”; and
C. Brought a cause of action for conversion against Scott.
Response: Lea adopts the following arguments in demonstrating that the filing of
the suit and its original complains were based in facts, were meritorious, and
remained unresolved to the extent complained of in the 4th Amended Motion.
Finding of fact no. 11 states:
11. Lea’s prior counsel prepared and forwarded to Scott’s counsel an
Assignment of Interest, transferring certain United States Savings
Bonds to Lea, and on or about September 8, 2010, Scott executed
such Assignment of Interest, and returned it to Lea’s counsel.
Response: There is no evidence the document referenced in this finding would be
effective to transfer ownership of the securities at issue.
Finding of fact no. 12 states:
12. On or about October 28, 2010, Scott, by and through his
counsel of record, provided a “corrected” Assignment of Interest
transferring such United States Savings Bonds to Lea, which he had
executed, to Lea’s counsel of record, for Lea’s execution, and Lea
refused to execute such Assignment of Interest.
13
Response: The document would have Lea surrender to Scott her bonds. It is not
“correct”. (RR. V. 7, R-23). Such is contrary to the property award. (7RR,
Exhibit P-2) and is not supported by any evidence. The fact, although true, is of no
moment, other than it does demonstrate a need to proceed with litigation to get the
actual award transferred.
Finding of fact no. 13 states:
13 On or about March 8, 2013, while the litigation was pending, Lemkuil
provided a new form of an assignment of interest in such United Sates
Savings Bonds. Scott executed the new assignment of interest prior to
trial.
Response: Although this is true, the date is after the litigation had been filed. The
relevant inquiry for reviewing sanctions is the facts known at the time the petition
was filed. The enforcement motion was clearly based in fact and was not
groundless or sanctionable.
Finding of fact no. 14 states:
14. Prior to the initiation of this lawsuit, Scott attempted to exchange the
diamond and coins (if any) which had been located in the safe deposit
box at Chase Bank, Medical Center location in Scott’s name for the
Rolex watch, which was awarded to him pursuant to the Decree and
AID; however, Lea refused to cooperate in exchanging such items.
Response: Scott’s attorney stated this in argument at trial, but there was no
evidence presented that this event ever occurred.
Finding of fact no. 15 states:
14
15. On or about November 7, 2012, Scott tendered to Lea, by delivery to
her attorney, the diamond referenced in Lea’s pleadings.
Response. The entire trial involved whether particular diamonds were conveyed.
Scott testified it was the Mine Cut Diamond. (RR: Vol. 5, p 104, line 15 to p. 105,
line 22). Lea testified it was NOT the Brannon Diamond (RR: Vol 3, p. 12, lines
17-20).
Finding of fact no. 16 states:
16. Prior to the initiation of this lawsuit, Scott packaged the Christmas
ornaments, the Gibson plates, and the stuffed animals, and made them
available to Lea.
Response: Scott’s attorney stated this in argument at trial, but there was no
evidence presented that this event ever occurred.
Finding of fact no. 17 states:
17. Lea made no attempt to take possession of the Christmas ornaments,
the Gibson plates, or the stuffed animals after Scott made them
available.
Response: The uncontroverted evidence says otherwise. (See e.g., 2RR, p. 71,
lines 23 - p. 72, line 3); see also Finding of Fact 18).
Finding of fact no. 18 states:
18. After the initiation of this lawsuit, Lea retrieved some of the personal
property from Scott’s counsel’s office.
15
Response: This is true but is of no moment. Indeed, the fact that such property was
not transferred until after the suit was filed indicates that Lea’s lawsuit had a basis
in law and fact and was not groundless or frivolous.
Finding of fact no. 19 states:
19. The AID states that Scott shall make the family photographs and video
available to Lea so that she may duplicate them, however as of her
filing of this litigation, Lea had not requested the photographs or
videos for duplication.
Response: There is no evidence that Scott made the photos and videos available.
There was, however, evidence that a demand for them made prior to the suit.
(7RR, Exhibit R-25).
Finding of fact no. 20 states:
20. Prior to initiating this litigation for performance of the contracts or
payment of any alleged money due and owing, neither Lea nor her
attorney of record made demand upon Scott, upon his attorney of
record, or upon any other dully authorized agent for performance or
payment.
Response: There is no requirement that a party must make a demand for property
before filing a suit for enforcement. Failure to make a demand is not an issue
related to whether a good faith investigation was conducted prior to filing suit. The
finding is in direct conflict with the uncontroverted facts. The final transfer of
funds did not occur until after suit was filed. (4RR 112, ln. 23 to 113, ln. 14).
16
Further, the finding conflicts with the evidence of the existence of the prior
lawsuit for ostensibly the same relief. (3RR 59, ln. 20 - 61, ln. 2). There is also a
written request offered as one of Scott’s own exhibits. (7RR, Exhibit R-25).
Finding of fact no. 21 states:
21. Prior to entry of the Decree, Scott paid all sums owed to Lea as a
result of the provision of the Decree and AID awarding Lea “fifty
percent (50%) net of taxes of ANY bonuses or reimbursement received
by Husband through April 30, 2010.
Response: This is contrary to Scott’s testimony. (5RR 125, ln. 13-16). It is also
contrary to Lea’s testimony. (3RR 13, ln. 24 - 17, ln. 5).
Finding of fact no. 22 states:
22. Prior to initiating this litigation for performance of the contract as it
related to the real property in Payne County, Oklahoma, Lea did not
present any conveyance documents to Scott for execution.
Response. The evidence on this issue is conflicting, but it is of no moment.
Finding of fact no. 23 states:
23. On or about May 3, 2012, Lemkuil forwarded to Scott’s counsel a
Quitclaim Deed, transferring the real property located in Pain
County, Oklahoma, and asked that Scott execute such Quitclaim
Deed.
Response: Although this is true, it was after the lawsuit had already been filed.
Finding of fact no. 24 states:
24. Scott executed the Quitclaim Deed, and returned it to Lemkuil.
17
Response: There is no evidence of this in the record. Again the finding is of no
moment as the issue was abandoned prior to trial.
Finding of fact no. 25 states:
25. Prior to Lea initiating this litigation, Scott made numerous attempts to
transfer Lea’s portion of Lincoln Investments account no 0305 (the
Lincoln Account”) to her.
Response: This is not relevant to the sanctions order wherein Lea was sanctioned
for failing to investigate prior to filing suit. Moreover, Scott’s alleged efforts to
transfer money to Lea were for less money than was properly awarded to Lea.
(4RR 112, ln. 23 – 113, ln. 14). Lea had a good faith basis for enforcing this
provision. The lawsuit was necessary to clarify and enforce the prior orders.
Finding of fact no. 26 states:
26. Lea continually refused to supply Scott, his financial advisor, or her
own financial advisor with the information required to enable Scott to
transfer her portion of the Lincoln Account to her.
Response: In response to this finding, Lea adopts the proceeding response to 25
above.
Finding of fact no. 27 states:
27. In November 2011, after the unnecessary expenditure of attorney’s
fees, Lea provided the required information to enable the transfer of
her portion of the Lincoln account, and the transfer was completed.
Response: This finding is in conflict with conclusions of law nos. 4 and 5. The
transfer was not completed until after the suit was filed. After the suit was filed, a
18
new calculation was made wherein Lea was able to recover a more accurate
percentage then offered to her pre-filing. The final Lincoln Investment money was
not offered until after it was first held for ransom to Lea for to dismiss her claims
for bonus and expenses money. (7RR, Exhibit R-55, Ex. A). “Finally, I am
authorized to say that Scott will transfer the Lincoln Account if Leah drops
any claims against him.” Id.
Finding of fact no. 28 states:
28. Lea by and through her attorney of record failed to make reasonable
inquiry into the facts surrounding the allegations contained in the
Enforcement, the Amended Enforcement, the 2nd Amended
Enforcement, the 3rd Amended Enforcement, or the 4th Amended
Enforcement, prior to filing each such pleading.
Response: The reasonable inquiry issue as to each amendment was not a basis for
sanctions as provided by the order (CR 12-16) as opposed to conclusion 7 (CR 38).
As the basis for the sanctions must be provided in the order, these issues as stated
here are without meaning. Tex. R. Civ. P. 13.
Scott fails to provide or identify any fact that was not considered or
identified by Lea prior to her filing the suit. The Final Judgment does not address
the 1st Amended Enforcement, 2nd Amended Enforcement, or 3rd Amended
Enforcement. There is no evidence or pleadings to support the findings.
Finding of fact no. 29 states:
19
29. After the facts surrounding Lea’s, by and through her attorney of
record, failure to make reasonable inquiry were brought to their
attention in a meeting with Scott’s attorney of record, he continued to
pursue a trial regarding Lea’s allegations.
Response: This is not a basis for sanctions as provided by the order CR 12-16 as
opposed to conclusion 7, CR 38). Further, the moving party must prove the
pleading party’s subjective state of mind. Thelemann v. Kethan, 371 S.W.3d 286,
294 (Tex. App.—Houston [1st Dist.] 2012, pet. denied). Scott has not done so.
There is no evidence of any issue that counsel failed to uncover that supports
a finding or sanction for failure to make inquiry. To the contrary, Scott associates a
failure to make a demand as evidence of a failure to make reasonable inquiry. Yet
Scott’s own evidence, specifically Exhibit R-25, demonstrates that a demand was
made.
The applicable standard of review on a sanction order is abuse of discretion.
Laub v. Pesikoff, 979 S.W.2d 686, 693 (Tex. App.—Houston [1st Dist.] 1998, pet.
denied). The test is whether the trial court acted without reference to any guiding
rules and principles. Downer v. Aquamarine Operators, Inc. 701 S.W.2d 238, 241-
42 (Tex. 1985). A sanctions order will be overturned if it is based on an erroneous
view of the law or a clearly erroneous assessment of the evidence. Home Owners
Funding Corp. of Am. v. Scheppler, 815 S.W.2d 884, 889 (Tex. App.—Corpus
Christi 1991, no writ.). In reviewing sanctions orders, courts are not bound by the
20
trial court’s findings of fact and conclusions of law; rather, appellate courts must
independently review the entire record to determine whether the trial court abused
its discretion.” American Flood, 192 S.W.3d at 583.
Scott provided no evidence that the petition was factually untrue. No
argument that there is not a body of law that supports enforcement proceedings to
compel compliance with property divisions. Therefore, Rule 13 sanctions do not
apply and were improperly imposed by the trial court. Likewise, Chapter 10
sanctions were not appropriate. Scott made no demonstration that Lea’s claims
were frivolous or made for an improper purpose. There is no evidence of an
improper benefit derived by Lea as a result of the litigation.
No sanctions may be imposed under Rule 13 “except for good cause, the
particulars of which must be stated in the sanctions order.” Tex. R. Civ. P. 13.
This requirement to include particular findings (1) ensures that the trial court is
held accountable and adheres to the standard of the rule; (2) requires the trial court
to reflect carefully on its order before imposing sanctions; (3) informs the
offending party of the particular conduct warranting the sanction, for the purpose
of deterring similar conduct in the future; and (4) enables the appellate court to
review the order in light of the particular findings made by the trial court. Rudisell
v. Paguette, 89 S.W.3d 233, 237 (Tex. App.—Corpus Christi 2002, no pet.).
21
D. Challenges to Sanctions Order
A sanctions order must contain an explanation of the basis for the sanctions
awarded. University of Texas v. Bishop, 997 S.W.2d 350, 355 (Tex. App.—Fort
Worth 1999, pet. denied); Jimenez v. Transwestern Prop. Co., 999 S.W.2d 125,
130 (Tex. App.—Houston [14th Dist.] 1999, no pet.). The Final Judgment here
makes clear that the sanctions ordered against Lea were the result of her Fourth
Amended Motion to Enforce. (CR 27). Citing Rule 13, the order states that “The
lawyer filing these pleadings failed to make reasonable inquiry before filing said
groundless and bad faith pleadings.” Rule 13 does not support an award of
sanctions for that purpose. Nevertheless, there is no evidence that the petition was
filed for an improper purpose.
The specific reasons for the sanctions set out in the Final Judgment are not
supported by the evidence. Appellant challenges each of the reasons as follows:
LEA PERCY McLAURIN claimed that SCOTT SUTTON McLAURIN
breached his contractual obligation by failing to sign a quitclaim deed
conveying his interest in real property located in Payne County,
Oklahoma to LEA PERCY McLAURIN. In fact, LEA PERCY
McLAURIN has never presented a quitclaim deed to SCOTT SUTTON
McLAURIN for his signature.
(CR 28, para. 1).
The claim regarding the Payne County, Oklahoma property was dropped and
is not contained in the Fourth Amended enforcement motion. (See 7RR, Exhibit R-
22
55). Moreover, this paragraph conflicts with finding of fact 23, discussed above,
which states that Lea did in fact present the quitclaim deed to Scott for his
signature.
LEA PERCY MCLAURIN claimed that SCOTT SUTTON MCLAURIN
had breached his contractual obligation by failing to surrender to
LEA PERCY MCLAUIRN her portion of the Lincoln Investment
account ending in 0305. Prior to LEA PERCY MCAURIN filing this
suit. SCOTT SUTTON MCLARIN made numerous attempts to transfer
LEA PERCY MCLURIN’s portion of the account to her. LEA PERCY
MCLAURIN continually refused to supply SCOTT SUTTON
MCLAURIN, his financial advisor, Ross McLaurin, or her own
financial advisor, Allen Weiner, with the information required to
transfer her portion of the account. Finally, in November 2011, only
after the unnecessary expenditure of attorney’s fees, LEA PERCY
MCLAURIN provided the repaired information for transfer of her
portion of the account, and the transfer was completed.
(CR 28, para. 2).
This issue was abandoned in the Fourth Amended Motion. It was not an
issue at trial. Regardless, this finding conflicts with the evidence at trial and the
findings entered by the court. Specifically, conclusion of law deemed as a finding
of fact, 4 and 5. (4RR 112, ln. 23 to 113, ln. 14) Evidence also establishes that the
ultimate funds transferred as a result of litigation in an amount different than those
contemplated by Scott prior to litigation. In other words, even if it is true that Scott
attempted to give Lea some money prior to litigation, the fact remains that the
amount of money she was entitled to was in dispute. This was the proper subject of
23
an enforcement suit. Lea cannot be punished for demanding that Scott follow the
AID.
LEA PERCY MCLAURIN claimed that SCOTT SUTTON MCLAURIN
breached his contractual obligation by failing to sign the documents
necessary to transfer nine (9) savings bonds to LEA PERCY
MCLAURIN which are in the name of SCOTT SUTTON MCLAUIRIN.
On or about October 28, 2010, SCOTT SUTTON MCLAURIN
provided LEA PERCY MCLAURIN, by and through her previous
attorney, J.D. Bucky Allshouse, with an Assignment of Interest in said
bonds. LEA PERCY MCLAURIN refused to execute the Assignment.
(CR 28, para. 3).
This issue was not included in the Fourth Amended Motion. Moreover, the
finding is contrary to the record, wherein the referenced assignment would have
conveyed the ownership of the bonds to Scott, contrary to the award. (7RR
Exhibit, R-23). It was not until after the suit had been filed that Scott executed the
papers necessary to transfer the bonds as contemplated by the agreement. (2RR 63
ln. 23 – 64. ln 1). After transfer had been completed, Lea amended her pleadings
and dropped that issue. (7RR, Exhibit R-55).
LEA Percy McLaurin claimed that SCOTT SUTTON McLAURIN
breached his contractual obligation by failing to surrender to LEA
PERCY MCLAURIN the diamond given to LEA PERCY MCLAURIN
by Patrick Brannan and the coins belonging to LEA PERCY
MCLAURIN or Christopher McLaurin. SCOTT SUTTON MCLAURIN
attempted to turn over the diamond and coins to LEA PERCY
MCLAURIN in exchange for the Rolex watch awarded to him,
however prior to this suit LEA PERCY MCLAURIN refused to
cooperate in exchanging the items.
24
(CR 28, para. 4).
The foregoing issue of the diamond was a contested trial issue. The evidence
presented was conflicting. The issue of the coins were abandoned and were not
tried because Scott claimed that they were lost or missing. (5RR, p. 133, lines 2-
10). There was no evidence that Scott attempted to exchang the coins. The AID
awards a watch to Scott and the contents of a safe deposit box to Lea. The watch
provided Scott was from the box awarded to Lea. The diamond provided to Lea
was not provided until after the suit had been filed. There was legitimate confusion
among the parties as to which diamond was which. This determination was a
legitimate subject of the litigation. (3RR 102, ln. 9-12; 97, ln. 1-3; 5RR 104, ln. 15
– 105, ln. 22).
LEA PERCY MCLAURIN claimed that SCOTT SUTTON MCLAURIN
had breached his contractual obligation by failing to surrender to
LEA PERCY MCLAURIN certain Christmas ornaments, Gibson
Plates, stuffed animals, family photographs, and videos. Although
SCOTT SUTTON MCLAURIN had made these items available to LEA
PERCY MCLAURIN prior to the filing this lawsuit. LEA PERCY
MCLAURIN failed to pick up or otherwise take possession of the
items. The parties Agreement Incident to Divorce stated that SCOTT
SUTTON MCLAURIN shall make the family photographs and videos
available to LEA PERCY MCLAURIN so that she could copy or
duplicate them. As of her filing of the suit LEA PERCY MCLAURIN
had not requested the photographs or videos for duplicating.
(CR 29, para. 1).
25
This issue was not included in the Fourth Amended Motion on which the
parties proceeded to trial. (7RR, R-55). Therefore, there is no basis for this
reasoning for the sanction. It was not until after she filed suit that the items
referenced in this paragraph were made available to Lea for her to pick up. (2RR
71, ln. 23 - 72, ln. 8. It was arbitrary to sanction Lea for anything related to this
issue.
The attorney who filed these pleadings failed to make the reasonable
inquiry required prior to filing this suit. Further, after these facts
were brought to the attention of the attorney during a meeting with the
undersigned, he continued to refuse to dismiss this frivolous suit.
(CR 29, para. 2).
This paragraph suggests that the attorney met with the judge. There is no
evidence of such a meeting. The only evidence of a meeting was one that was held
prior to filing suit. (7RR, Exhibit R-24).
Therefore, the undisputed facts are that at the time of the filing of the
motion:
1. There was no signed quitclaim deed. (RR 56, ln. 13 – 57 ln. 9; Finding
of Fact 23 and 24)
2. Lincoln investment account had not been transferred. (7RR, Exhibit
R-55, Exhibit A to the petition at p. 2; Finding of Fact 27).
3. The bonds had not been transferred. (2RR 63, ln. 23 – 64, ln. 1;
Finding of Fact 13)
26
4. As of final trial, the Brannon diamond had not been surrendered.
(2RR 54, ln. 17-20; 3RR 11, ln. 21- 12, ln. 20; Finding of Fact No. 15)
5. Not all the bonus and expense money was paid. (5RR 125, ln. 13 -16).
6. Numerous items of personal property had not been surrendered. (2RR
67, ln. 12 –68, ln. 8; Finding of Fact 18; 3RR 13, ln. 24 - 17, ln. 5).
All of these missing items were covered in the demand letter sent to Scott’s
counsel prior to the nonsuit and the suit at bar. (7RR, Exhibit R- 25). Thus, demand
was made for the items. To the extent that the trial court intended to punish Lea for
the enforcement petition that was nonsuited, this is not supported by the pleadings
and would be improper under existing law. Thompson v. Davis, 901 S.W.2d 939,
940 (Tex. 1995) (court could not extend sanction from earlier motion to modify
child support to later motion to modify custody).
The trial was had on the issue of the payment of the bonuses and the third
referenced diamond. Neither of these issues is listed as a specific basis for the
sanctions. In fact, Scott himself admitted that as of trial he still owed Lea money
on the bonuses and expenses portion of the AID. (5RR 125, ln. 13 -16). Scott also
admitted that he could still have the Brannon diamond, having only turned over the
mine cut diamond. (5RR 104, ln. 15 – 105, ln. 22).
27
II. Trial court abused its discretion by including a due date for the
judgment to be paid (ISSUE 2)
The trial court ordered that the sanctions were to be paid on or before June
12, 2014 at 3:00 p.m. (CR 29). This was an abuse of discretion. In aid of her
argument on this issue, Appellant also respectfully refers this Court to the Petition
for Writ of Habeas corpus filed by Lea on November 14, 2014 in No. 01-14-
00920-CV. The trial court attempted to enforce the sanctions order by
incarcerating Lea for her failure to pay by a date certain. Lea sought a writ of
habeas corpus and this Court conditionally granted that habeas relief pending
review of her petition.
Moreover, Lea cannot be forced by the trial court to abandon her appellate
issues by paying the judgment that she had properly appealed. “It is a settled rule
of law that when a judgment debtor voluntarily pays and satisfies a judgment
rendered against him, the cause becomes moot. He thereby waives his right to
appeal and the case must be dismissed.” Highland Church of Christ v. Powell, 640
S.W.2d 235, 236 (Tex. 1982) (internal citations omitted). Lea timely appealed the
sanctions order.
The trial court’s inclusion of a deadline for payment of the judgment was
improper and an abuse of discretion. Lea asks this Court to render an order that any
deadline language be stricken from the Final Judgment.
28
III. The trial court abused its discretion by denying Lea’s requested relief.
The great weight and preponderance of the evidence supported
enforcement of the property division on the issue of bonuses and the
diamond (ISSUE 3).
The trial court erred by denying Lea’s requested relief with respect to the
only two remaining issues at trial: the bonuses she was owed and the missing
diamond. It was undisputed that, as of the time of trial, neither the diamond nor
the bonuses had been tendered to Lea. (6RR 72, ln. 1-6; 5RR 125, ln. 13-16).
A. Bonuses/Reimbursements
Scott confessed that at least some money was owed to Lea at the time of
trial:
Q: Do you believe you owe any money related to the bonus and
reimbursements portions of the AID?
A. Yes.
(5RR 125, ln. 13-16). The great weight and preponderance of the evidence
indicates that Scott owed money to Lea and the trial court should have ordered the
accounting requested by Lea. The failure to do so was arbitrary and an abuse of
discretion.
Although Scott plead accord and satisfaction and tendered some of the
missing money, it was only done so in trust for a release from the other money he
owed. (7RR, Exhibit R-42). There was no showing of accord and satisfaction for
the bonus money, and no evidence entered in support of the other affirmative
29
defenses asserted. The essential elements of accord and satisfaction have remained
unchanged for many years and are clearly expressed in Jenkins v. Henry C. Beck
Company, 449 S.W.2d 454, 456 (Tex. 1969) (providing full disclosure, dispute,
unmistakable message of intent with tender, and an agreement of the parties to
accept a lesser amount.). (3RR 8, ln. 9-22).
Further, despite no pleadings asserting that the provision of the AID
addressing the bonuses and expenses was vague, the court did not permit
examination into the bonus money paid since the divorce was filed until the closing
date set by the AID. The refusal to allow this testimony was arbitrary and an abuse
of discretion. The issue of an accounting and the monies owed should be reversed
and remanded for a complete examination of what money is due. It is clear form
the record that said bonuses were substantial. Therefore, Lea was harmed by this
error. (7RR, pgs. 67, 73, 75, and 77).
B. Brannon Diamond
Scott confessed that he did not attempt to return the Brannon diamond. Scott
admitted he only tendered the mine cut stone. (5RR 104, ln. 15 - 105, ln. 22). The
value of the Brannon diamond should have been paid to Lea. The evidence showed
that the value of that diamond was $15,000.00. (2RR 82, ln. 20-22).
PRAYER
For the foregoing reasons, Lea Percy McLaurin prays that this Court will:
30
1. Reverse the sanctions order and render an order that Scott take
nothing on his request for sanctions. Alternatively, Lea asks this Court
to reverse and remand on the issue of payment on a date certain.
2. Reverse and remand this case for a full determination of the money
still owed to Lea under the terms of the divorce decree and AID;
3. In the event that this Court affirms the imposition of sanctions, to
reverse and remand on the issue of the severity of the sanctions and
costs.
Respectfully submitted,
LAW OFFICE OF DANIEL J. LEMKUIL
/s/ Daniel J. Lemkuil
Daniel J. Lemkuil
State Bar No. 00789448
1314 Texas Avenue, Suite 1515
Houston, Texas 77002
Telephone: (713) 993-9100
Facsimile: (713) 225-0099
daniel_lemkuil@flash.net
LAW OFFICE OF JANICE L. BERG
Janice L. Berg
State Bar No. 24064888
1314 Texas Avenue, Suite 1515
Houston, Texas 77002
Telephone: (713) 993-9100
31
Facsimile: (713) 225-0099
janice@janiceberglaw.com
ATTORNEYS FOR APPELLANT
CERTIFICATE OF WORD COUNT COMPLIANCE
Pursuant to Rule 9.4, I hereby certify that the number of words in this
document—exclusive of caption, identity of parties and counsel, statement
regarding oral argument, table of contents, index of authorities, statement of the
case, statement of issues presented, statement of jurisdiction, signature, proof of
service, certification, certificate of compliance and appendix is—7264.
/s/ Daniel J. Lemkuil
Daniel J. Lemkuil
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing served on all counsel of
record in accordance with the Texas Rules of Appellate Procedure on February 2,
2015.
/s/ Daniel J. Lemkuil
Daniel J. Lemkuil
32
NO. 01-14-00710-CV
IN THE COURT OF APPEALS
FOR THE FIRST JUDICIAL DISTRICT OF TEXAS AT HOUSTON
LEA PERCY MCLAURIN,
APPELLANT
v.
SCOTT SUTTON MCLAURIN,
APPELLEE
On appeal from the 309th Judicial District Court
Harris County, Texas | Cause No. 2009-06775
APPENDIX
Tab No. Title
1 Final Judgment on Lea Percy McLaurin’s Motion to
Enforce and Scott Sutton McLaurin’s Motion for
Sanctions and Bad Faith Filing, signed April 8, 2014.
2 Fourth Amended Motion to Enforce Final Decree of
Divorce and Agreement Incident to Divorce, filed
March 27, 2013.
3 TEX. R. CIV. P. 13
4 CIV. PRAC. & REM. CODE § 10.004
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APPENDIX!1!
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Final&Judgment&on&Lea&Percy&McLaurin’s&
Motion&to&Enforce&and&Scott&Sutton&
McLaurin’s&Motion&for&Sanctions&and&
Bad&Faith&Filing,&signed&April&8,&2014&
& &
CAUSE NO. 2()()9..06775