Lee Arthur Bush v. Emma Jean Bush

AFFIRMED; Opinion Filed July 7, 2016.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-00586-CV
LEE ARTHUR BUSH, Appellant
V.
EMMA JEAN BUSH, Appellee
On Appeal from the 254th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-13-06120-R
MEMORANDUM OPINION
Before Justices Bridges, Evans, and O'Neill1
Opinion by Justice Evans
In this appeal from a divorce decree, Lee Arthur Bush challenges the trial court’s award
of two pieces of real property to his former wife, Emma Jean Bush. In two issues, Lee contends
the trial court erred in failing to enforce a rule 11 agreement and not making findings of fact and
conclusions of law after being properly requested to do so. For the reasons that follow, we
affirm the trial court’s judgment.
BACKGROUND
Emma filed this suit for divorce in March 2013. In response, Lee filed a counter petition
for divorce and a motion to enforce a rule 11 agreement on division of property that he and
1
The Hon. Michael J. O'Neill, Justice, Assigned
Emma filed in a previous divorce suit dismissed in 2006. Lee then filed a motion to transfer and
consolidate this case with the prior divorce suit that was dismissed.
The trial court rendered a decision on October 9, 2013, in which it addressed both the
motion to transfer and the enforceability of the rule 11 agreement. In the decision, the court
noted that the prior divorce suit was dismissed by an agreed order of dismissal signed by both
parties stating that the parties no longer desired to proceed.2 The trial court then stated that
because the parties agreed to the dismissal and signed the order, “all the prior proceedings are
dismissed and held for naught.” The court concluded the previous case did not exist for purposes
of consolidation and no procedure required the case to be “reinstated into the original court.”
As for the rule 11 agreement filed in the prior suit, the October 9 decision stated that,
because rule 11 agreements are revocable until accepted by the court and incorporated into a
final order, and that was not done in the prior case, the parties’ rule 11 agreement became a
nullity when the case was dismissed. The court further held that, even if the rule 11 agreement
survived the dismissal, it lacked the specificity necessary for enforcement. The court noted,
however, that with respect to the sale of a certain piece of property in Louisiana, and the
subsequent division of proceeds from that sale, the agreement might be enforceable under “basic
contractual law and theories.”
The case went to trial before the court on January 7, 2015. During trial, Lee’s counsel
acknowledged that the court had previously found the rule 11 agreement unenforceable and
stated “I’m not gonna argue it’s a valid rule 11.” Evidence pertaining to the agreement was
limited to whether it was enforceable as an independent contract. After hearing the evidence, the
2
In a footnote in his reply brief on appeal, Lee states that he submitted an affidavit one year after the trial court
rendered its decision in which he testified that his signature on the agreed dismissal was forged. The affidavit is not
in our record and Lee has brought no challenge to the trial court’s ruling based on evidence of an alleged forgery
that was submitted one year after the decision was rendered.
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judge signed a “rendition” in which he set out the division of property. Due to the elected trial
judge’s ill health, the final decree of divorce was signed by a visiting judge. Although the
divorce decree includes additional holdings, the division of property essentially tracks what was
set forth in the earlier “rendition.” Lee timely filed both a request for findings of fact and
conclusions of law and a notice of past due findings and conclusions. No findings or conclusions
were filed by the trial court. Lee now brings this appeal.
ANALYSIS
A. Rule 11 Agreement
In his first issue, Lee challenges the award of two pieces of real property to his former
wife. Lee contends the properties were purchased with proceeds he obtained from a
discrimination suit and, pursuant to the rule 11 agreement filed in the earlier dismissed divorce
action, the lawsuit proceeds were his separate property.3 Arguing that the two pieces of real
property were purchased with funds that were his separate property under the rule 11 agreement,
Lee asserts the trial court erred in failing to award him the two properties in the final divorce
decree.4 See Cameron v. Cameron, 641 S.W.2d 210, 215 (Tex. 1982) (in division of marital
estate court may not divest party of separate property).
Although Lee cites several authorities for the proposition that a trial court has a duty to
enforce a valid rule 11 agreement, he cites no authority, and provides no real argument,
challenging the trial court’s finding that the rule 11 agreement at issue could not validly be
enforced in the current suit. The trial court concluded that the agreement became a nullity for
purposes of the rule once the case in which it was made was dismissed. Lee addresses this
conclusion summarily, and only in his reply brief, by stating “the fact that a trial court judge
3
Lee does not argue the proceeds were his separate property on any basis other than the rule 11 agreement.
4
Lee makes no argument on appeal that the agreement was enforceable as an independent contract outside of
rule 11.
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states what he believes the law to be simply does not make that the law.” Lee does not, however,
show how the trial court’s conclusion is erroneous which is his burden. See Jackson v. U.S. Fid.
and Guar. Co., 689 S.W.2d 408, 412 (Tex. 1985) (burden on appellant to show judgment of trial
court rendered erroneously); see also Blanks v. Liberty Mut. Fire Ins. Co., 196 S.W.3d 451, 452
(Tex. App.—Dallas 2006, pet. denied) (bare assertions of error, without argument or authority,
present nothing for review).
Lee notes that there is no language in the agreement limiting its enforceability to the case
in which it was made. But an agreement under rule 11 must be made in connection with a
pending suit. See TEX. R. CIV. P. 11; In re Guthrie, 45 S.W.3d 719, 728 (Tex. App.—Dallas
2001, pet. denied). There is no dispute that the agreement was not made in the present suit, nor
was the current suit pending when the agreement was made in the previous suit. Lee cites no
authority and makes no argument that a rule 11 agreement can be enforced under rule 11 in a suit
other than one to which it relates that was pending when the agreement was made.
In addition, Lee cites no authority and makes no argument challenging the trial court’s
finding that the rule 11 agreement as a whole lacked the specificity necessary for enforcement.
Lee states only that there is nothing ambiguous about the parties’ statement that the proceeds
from his discrimination suit were his separate property. The portion of the agreement addressing
the discrimination suit proceeds is one sentence in a four-page agreement. To be enforceable, a
rule 11 agreement must be complete within itself in every material detail and contain all essential
elements of the agreement. See Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex. 1995). Lee
makes no argument that the rule 11 agreement as a whole meets the requirements necessary for
enforceability or that the agreement is capable of being enforced in part.
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Based on the foregoing, we conclude Lee has failed to show the trial court erred in
refusing to enforce the rule 11 agreement when it divided the marital estate. We resolve Lee’s
first issue against him.
B. Findings of Fact and Conclusions of Law
In his second issue, Lee contends the trial court committed reversible error in failing to
make findings of fact and conclusions of law after being timely requested to do so. Generally the
failure to make requested findings of fact and conclusions of law is presumed to be harmful error
because the absence of findings and conclusions forces the appellant to guess at the reasons the
trial court ruled against him and prevents him from properly presenting his case on appeal. See
R.H. v. Smith, 339 S.W.3d 756, 766 (Tex. App.—Dallas 2011, no pet.). A trial court’s failure to
make findings of fact and conclusions of law is not harmful error, however, if the record before
the appellate court affirmatively shows that the complaining party suffered no injury. See Tenery
v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996). Where the appellant in a divorce suit challenges only
one aspect of the property division, and the basis for the property award is clear from the record,
the appellant is not injured by the trial court’s failure to make findings and conclusions. See
Guzman v. Guzman, 827 S.W.2d 445, 447 (Tex. App.—Corpus Christi 1992, writ denied).
In this case, appellant does not contend the division of property as a whole was erroneous
or unjust. He contends only that the trial court erred in awarding Emma two pieces of property
because those properties were purchased with proceeds that were his separate property pursuant
to a rule 11 agreement. The issue of the validity of the rule 11 agreement was decided as a
matter of law months before the case was tried. Indeed, Lee’s counsel specifically
acknowledged that the validity of the rule 11 agreement was not at issue in the trial.5 Therefore,
5
Although evidence pertaining to the agreement was presented at trial, it was limited to whether the agreement
could be enforced as an independent contract outside of rule 11. Lee brings no issue on appeal contending the trial
court erred in failing to award him the properties at issue under a contract theory.
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there could not be any fact findings as to that matter. Findings of fact and conclusions of law are
not appropriate and serve no purpose with respect to an issue decided as a matter of law. See
IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 443 (Tex. 1997).
Lee argues the basis for the trial court’s award of the properties is not clear based on a
variety of hypotheticals such as the trial court could have concluded the properties were Lee’s
separate property, but that he gave them to Emma as a gift. Or he asserts the court could have
concluded the properties were Lee’s separate property but simply awarded them to Emma in
error. There is no basis in the record to support either of these hypotheticals. The only ground
upon which Lee claims the properties were his separate property is the rule 11 agreement. The
trial court rendered a written order months before trial stating that the rule 11 agreement was not
enforceable. Because the trial court held invalid the only basis upon which Lee has claimed the
real properties were his separate property, it necessarily held the properties were part of the
community estate properly subject to division.
The trial court’s October 9, 2013 decision set forth two specific reasons to support its
conclusion that the rule 11 agreement was not enforceable in this suit. Accordingly, Lee does
not have to guess at the reasons for the trial court’s ruling. Even if findings of fact and
conclusions of law were appropriate as to this matter, because Lee does not have to guess at the
reasoning behind the trial court’s ruling, he has suffered no harm by virtue of the trial court’s
failure to provide the requested findings and conclusions. See Smith, 339 S.W.3d at 766. We
resolve Lee’s second issue against him.
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CONCLUSION
We affirm the trial court’s judgment.
/David Evans/
DAVID EVANS
JUSTICE
150586F.P05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
LEE ARTHUR BUSH, Appellant On Appeal from the 254th Judicial District
Court, Dallas County, Texas
No. 05-15-00586-CV V. Trial Court Cause No. DF-13-06120-R.
Opinion delivered by Justice Evans. Justices
EMMA JEAN BUSH, Appellee Bridges and O'Neill participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee EMMA JEAN BUSH recover her costs of this appeal from
appellant LEE ARTHUR BUSH.
Judgment entered this 7th day of July, 2016.
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