in the Matter of Marriage of Larry Don Bivins and Carmen Martinez Bivins

IN THE
TENTH COURT OF APPEALS
No. 10-11-00018-CV
IN THE MATTER OF THE MARRIAGE OF
LARRY DON BIVINS
AND
CARMEN MARTINEZ BIVINS
From the 378th District Court
Ellis County, Texas
Trial Court No. 68,799D
OPINION
Larry Don Bivins appeals the trial court’s judgment awarding damages and
attorney fees using Chapter 9 of the Texas Family Code to enforce post-divorce
turnover of real property. We affirm the trial court’s judgment.
BACKGROUND
Larry Don Bivins (―Bivins‖) was married to Carmen Martinez (―Martinez‖).
When the parties split up in 2004, Temporary Orders were entered giving Bivins the
residence to live in and prohibiting Martinez from access to it. Other property was
maintained by each party which is not relevant to this appeal. In early 2006, the parties
resolved their marital issues through a Mediated Settlement Agreement (―MSA‖).
Bivins agreed to vacate the marital residence on April 1, 2006. The Decree of Divorce
was entered on August 4, 2006. At some point in time, the agreements fell apart. Both
parties dug their heels in and several Motions to Enforce were filed with ensuing court
orders that give insight into the continuing animosity between the parties. After one
such Motion to Enforce, the court ordered Bivins to leave the residence on August 18th.
Martinez took possession on August 19th of a demolished home. In December, 2006,
Martinez filed her Original Petition for Damages and Enforcement seeking damages for
repairs to make the home livable. After the trial, Martinez was awarded a money
judgment on December 10, 2010 for the cost of repairs and attorney fees. Findings of
Fact and Conclusions of Law were entered.
The provision of the Decree that is the focus of this litigation follows:
Larry Don Bivins is ORDERED to vacate the premises at 1100 FM 983,
Ferris, Texas, on or before April 1, 2006, and represents that all
improvements are in workmanlike state of repair at the time of signing
this Decree, and will be of same or better repair on date of delivery.
Bivins complains to this Court that Martinez’s claims are barred by res judicata;
that an improper measure of damages was applied; that the experts were not qualified
nor is their testimony factually or legally sufficient; and that attorney fees should be
limited and are not supported by the evidence.
RES JUDICATA
Bivins complains that Martinez’s claim for damages could have been decided
during the divorce and that at the time Martinez took possession of the residence and
saw its condition, the trial court’s plenary power had not expired. He maintains that
Martinez should have requested a new trial instead of seeking damages long after the
court lost jurisdiction to set aside the Decree.
Facts
In the Matter of the Marriage of Bivins Page 2
Bivins, in the prior litigation, sued Martinez for divorce which included only
property and debt division. There were no minor children. During the divorce, the
parties operated under Temporary Orders which gave Bivins exclusive possession of
the residence. Martinez was enjoined from access. The parties divided the property
and debts by mediation and the agreement was signed by both parties in February,
2006. It contained a provision making it ―binding on the parties and shall not be subject
to revocation.‖ The Divorce Decree entered by the trial court on August 4, 2006, was
not signed by the parties. Bivins asked the court to enforce the property division.
Martinez was ordered to transfer retirement benefits to him. Martinez also requested
enforcement of the property division. Bivins was ordered to deliver a vehicle and
vacate the home by August 18, 2006. Martinez took possession on August 19th. While
those orders were not appealed, they impact an evaluation of facts in the prior
litigation.
By her Original Petition for Damages and Enforcement, Martinez asserted causes
of action for negligence, exemplary damages, breach of contract, enforcement of the
MSA and Temporary Orders, deceptive trade practices, and Texas Family Code Chapter
9, damages for repairs and the diminished value. She did not challenge the property
division awarded in the Decree. She had no claim for damages until after she took
possession of the home and saw its condition. Through various Motions for Summary
Judgment and Special Exceptions, the trial court excluded claims that were attacks on
the Decree. She has not appealed these rulings. The claim that survived was for Texas
Family Code Chapter 9 damages.
Holding
In the Matter of the Marriage of Bivins Page 3
Res judicata, or claims preclusion, prevents the re-litigation of a claim that was
adjudicated and resolved by a final judgment, as well as related matters that with the
use of diligence should have been litigated in the earlier suit. Barr v. Resolution Trust
Corp., 837 S.W.2d 627, 628 (Tex. 1992).
Texas takes a transactional approach to claims preclusion. The Supreme Court in
Barr stated that
A determination of what constitutes the subject matter of a suit necessarily
requires an examination of the factual basis of the claim or claims in the
prior litigation. It requires an analysis of the factual matters that make up
the gist of the complaint, without regard to the form of action. Any cause
of action which arises out of those same facts should, if practicable, be
litigated in the same lawsuit.
Id. at 630.
Texas Family Code section 9.010(a) states that ―If a party fails to comply with a
decree of divorce or annulment and delivery of property awarded in the decree is no
longer an adequate remedy, the court may render a money judgment for the damages
caused by that failure to comply.‖ TEX. FAM. CODE ANN. § 9.010(a) (West 2006).
Martinez did not challenge the property division awarded in the Decree. The orders on
the various Motions to Enforce were necessary to give effect to the property division in
the Decree.
Martinez had no claim for damages until after she took possession and saw its
condition. Bivins cannot use his right to exclusive possession of the premises as a shield
of protection and later argue that Martinez should have made a claim for damages to
the home using his claim as a sword against her subsequent suit.
Bivins would have his ex-wife file a Motion for New Trial if she wasn’t happy
In the Matter of the Marriage of Bivins Page 4
with the property division. By the time Martinez took possession of the home, the
property had been divided: he had his business, one half of her retirement and his
vehicles, she had the house, one half of her retirement, her vehicles, and they each had
assorted personal property. Martinez had to choose whether to re-litigate the property
division or seek damages for the failure to comply with the property division in the
decree. She chose to file a suit for damages. The issues involved in the divorce are not
the same as those in the suit for damages. See e.g. Eberstein v. Hunter, 260 S.W.3d 626,
628-629 (Tex. App.—Dallas 2008, no pet.) (where post-divorce petitions to enforce
property award and to enforce contractual alimony provision were filed under same
case number as underlying divorce, both petitions were distinctly different actions that
were prosecuted separately).
Bivins’s first issue is overruled.
EXCEEDING THE AUTHORITY OF TEXAS FAMILY CODE CHAPTER 9
Bivins complains that the trial court exceeded its authority in enforcing the
Mediated Settlement Agreement (―MSA‖); that the Decree is incapable of enforcement;
that the court was without authority to clarify or modify its Decree; and that awarding
damages is an impermissible divesting of Bivins’s separate property.
Facts
As recited above, the provision of the Decree that is the focus of this litigation is
as follows:
Larry Don Bivins is ORDERED to vacate the premises at 1100 FM 983,
Ferris, Texas, on or before April 1, 2006, and represents that all
improvements are in workmanlike state of repair at the time of signing
this Decree, and will be of same or better repair on date of delivery.
In the Matter of the Marriage of Bivins Page 5
Ultimately, the trial court ordered Bivins to vacate the property on August 18,
2006. The property was vacated by Bivins as ordered. The testimony and exhibits
indicated that when Martinez took possession the next day, there was trash in the house
(four dumpsters full); sewage backed up in the garbage disposal and in the dishwasher
from the septic tank overflow; an icemaker was removed allowing the water line to leak
over the floor causing mildew and warping the floor; water stains on the ceilings on the
first and second floors; tubs and sinks so poorly cared for they had to be replaced; stairs
and porches that were unusable; rotting wood and peeling paint on the house, gazebo,
and barn; fret work on the front porch that could not be replaced and missing doors;
carpet that had to be replaced after attempts to clean it were unsuccessful; a front
driveway with holes so numerous and large that a separate path had been created to
reach the house; dented siding on the barn; telephone units pulled from the walls; and
other damages too numerous to detail every item.
Martinez testified that ―[the house] wasn’t like that when I left.‖ This testimony
by her was not refuted.
The trial court entered Findings of Fact and Conclusions of Law which in
relevant part are as follows:
…
2. The Court finds that the parties entered into a Mediated Settlement
Agreement on the first day of February, 2006 which provides as follows:
…all improvements are in a workmanlike state of repair at time of
signing and will be of same or better repair on the date of delivery
– signed by Larry Don Bivins, Petitioner.
3. The terms of the Decree of Divorce between Plaintiff and
Defendant provides as follows:
In the Matter of the Marriage of Bivins Page 6
Larry Don Bivins is ordered to vacate the premise [sic] at 1100 FM
983, Ferris, Texas, on or before April 1, 2006 and represents that all
improvements are in workmanlike state of repair at the time of
signing this Decree and will be of same or better repair on date of
delivery.
…
6. The Court further finds and concludes that under the provision of
the Family Code, Section 9.010, the court has the power to award a
judgment to enforce its decree in the event delivery of property is no
longer an adequate remedy.
…
7. The Court finds that Defendant failed to deliver the property in a
workman-like state of repair to the Plaintiff as Defendant had agreed to
do.
8. The Court further finds that delivery of property is no longer an
adequate remedy and renders [sic] money judgment for the damages
sustained by the Plaintiff.
…
15. The Court finds that the Mediated Settlement Agreement should be
enforced.
Holding
In Ex parte Gorena, 595 S.W.2d 841, 844 (Tex. 1979), the Supreme Court held that
once an agreement of the parties is incorporated into the decree it is not merely a
contract but is the judgment of the court. This appeal is distinguishable from Gorena
since the Bivins/Martinez Decree was not signed by the parties and would be
unenforceable as a contract. ―Despite the fact that a judgment has its genesis in an
agreement between the parties, the judgment itself has an independent status.‖ Id.
Martinez did not seek to have the Decree enforced as a contract. It is, however,
enforceable as the judgment of the court.
The trial court, however, found that the MSA should be enforced. Findings of
In the Matter of the Marriage of Bivins Page 7
Fact in a bench trial have the same force as a jury’s answers to questions in a jury trial.
They are reviewed for factual and legal sufficiency by the same standards. Ortiz v.
Jones, 917 S.W.2d 770, 772 (Tex. 1996) (factual sufficiency); Anderson v. Seven Points, 806
S.W.2d 791, 794 (Tex. 1991) (legal and factual sufficiency). A complete reporter’s record
was part of the record reviewed by this Court. Therefore, findings by the trial court are
not conclusive. Tierra Sol Joint Venture v. City of El Paso, 311 S.W.3d 492, 498 (Tex.
App.—El Paso 2009, no pet.). The trial court had within its power the ability to enforce
its judgment and did so.
Bivins, on appeal, asserts that he repudiated the MSA and, therefore, it cannot be
enforced. Bivins did not appeal any denial of his repudiation after the trial court’s
incorporation of the MSA into the Divorce Decree which was entered on August 4, 2006.
Repudiation cannot be raised for the first time in this appeal. TEX. R. APP. P. 33.1; see
Milner v. Milner, 361 S.W.3d 615, 618-619 (Tex. 2012).
Bivins also complains that the Decree cannot be modified or clarified and that the
―representation‖ is incapable of enforcement. The trial court neither modified nor
clarified this paragraph of the decree by its decision. Martinez asked for and was
awarded monetary damages. ―We look to the substance of a plea for relief to determine
the nature of the pleading, not merely at the form of title given to it.‖ State Bar of Texas
v. Heard, 603 S.W.2d 829, 833 (Tex. 1980); TEX. R. CIV. P. 71.
The trial court properly applied Texas Family Code section 9.010 to this situation
and heard evidence as to why enforcement of the Decree was no longer an adequate
remedy indicating that an award of damages was the appropriate remedy. These facts
are a classic reason for the creation of this statute.
In the Matter of the Marriage of Bivins Page 8
Bivins offers no case law in support of his position that the court abused its
discretion in awarding damages.
Bivins would urge this Court to hold that the trial court divested him of separate
property to pay these damages. A claim for separate property usually arises when
there is a dispute over characterization. The property awarded to each of these parties
in the Decree became their separate property when the divorce was final. It then
became subject to whatever debts each incurred afterwards. His assertion is
implausible.
Bivins’s second issue is overruled.
MEASURE OF DAMAGES USING NON-SCIENTIFIC EXPERT TESTIMONY
Bivins’s next three issues will be dealt with together since they relate to damages,
Martinez’s experts’s interpretation of the phrase ―workmanlike state of repair,‖ and the
sufficiency of the evidence.
Facts
In her Third Amended Original Petition for Damages and Enforcement, Martinez
asserted damages of $107,198.14. Martinez testified that when she took possession of
the house, she and others took pictures. She testified that she paid $88,682.10 for the
repairs. The testimony consisted of payments for repairs to the items mentioned
previously and many others. There was also testimony that would not have been
associated with the repair of the house, i.e. replacement of slashed tires on the tractor
and veterinarian bills for a sick dog; that the agriculture exemption had been lost
thereby increasing taxes owed by Martinez; that numerous items of personal property
awarded to Martinez were missing; that insurance proceeds had paid for some repairs;
In the Matter of the Marriage of Bivins Page 9
and that some repairs were upgrades. After hearing from the witnesses, the trial court
ordered Bivins to pay $48,305.42.
Martinez proffered the testimony of three individuals as experts: William
Robertson (―Robertson‖) and John Foster (―Foster‖) – building contractors, and Patrick
Barrientez (―Barrientez‖) – fencing contractor. Robertson and Foster had been
residential contractors for over 10 years. Barrientez had been building fences for over
15 years.
Robertson testified about the condition of the property when Martinez took
possession, the repairs needed to make the house livable, and the reasonableness of the
invoices for the work done. He did not testify about the completed repairs. His
testimony was not refuted.
Foster opined on his inspection of the property after repairs were completed.
During this inspection, he reviewed Martinez’s invoices. He also compared the
completed repairs to photos taken by Martinez of the condition of the home before the
repairs were started. As they walked through the house, he examined and tested the
new equipment and its installation. He related that there were certain items he did not
test such as phones and the roof. He reported that certain repairs were unfinished.
Over the objections of Bivins’s attorney, he testified in laborious detail of specific
repairs that he observed comparing the work which had been completed at the time of
his inspection to the pictures taken by Martinez and the invoices. He repeatedly stated
that the repairs which he observed had been done correctly. When asked by Bivins’s
attorney his interpretation of ―workmanlike condition,‖ Foster stated, ―…it is in a
working condition.‖ His testimony was uncontroverted.
In the Matter of the Marriage of Bivins Page 10
Barrientez testified about the perimeter fence and pens at the barn – before and
after repairs. Bivins objected to Barrientez testifying about the ―workmanlike state of
repair‖ and the work he performed. Barrientez related that
…(the fence) was broken up. The whole fence was broken; fence
posts bent over; H-poles pulled up out of the corners…The external pen
the barn where the chutes and all that were, it was – like I say, the pipe
was rusted out. The weeds were overgrown in the barn…the dirt had
settled so much that the concrete was exposed. So there was no – nothing
holding the structure together outside of that. All that had to come out.
And the pipe was replaced, and chutes were put back in.
When asked by Bivins’s attorney the meaning of ―workmanlike state of repair‖ he
replied, ―I would think that it would be something that’s within working order.‖
Holding
The proper measure of damages is the cost of repairs. Pasadena State Bank v. Isaac,
288 S.W.2d 127, 128-129 (Tex. 1950); Z.A.O., Inc. v. Yarbrough Drive Ctr. Joint Venture, 50
S.W.3d 531, 545-546 (Tex. App.—El Paso 2001, no pet.); Nielson v. Okies, 503 S.W.2d 614,
616 (Tex. Civ. App.—El Paso 1973, no writ); Hill & Hill Truck Line, Inc. v. Powell, 319
S.W.2d 128, 133 (Tex. Civ. App.—Waco 1958, no writ).
None of these men had formal education in their areas of expertise. The trial
court properly determined that these witnesses were qualified to testify in the areas for
which their testimony was offered. They did not need college degrees to be qualified.
TEX. R. EVID. 702; Glasscock v. Income Property Services, Inc., 888 S.W.2d 176, 180 (Tex.
App.—Houston [1st Dist.] 1994, writ dism’d by agreement). See Page v. State Farm
Lloyds, 259 S.W.3d 257, 266-268 (Tex. App.—Waco 2008) rev’d on other grounds, 315
S.W.3d 525 (Tex. 2010).
Were their opinions reliable?
In the Matter of the Marriage of Bivins Page 11
After reviewing invoices of the work, Robertson gave his opinion about the
fairness of the invoices and reasonableness of the costs of repair. He was not permitted
to testify about the actual repairs. He was also not allowed to testify about an
examination of the property and repairs made immediately before his testimony since
the opinions were not disclosed. Over the objection of Bivins’s attorney, Robertson
testified that the work as invoiced was reasonable and that the work shown on the
invoices was necessary. These invoices had been produced in response to a Request for
Production. Over Bivins’s objection, the court admitted them. Experts are permitted to
use evidence that may otherwise be hearsay in rendering their opinions. In re Christus
Spohn Hosp. Kleberg, 222 S.W.3d 434, 440 (Tex. 2007).
The trial court’s responsibility is to evaluate the facts against the opinions to
determine if there is a sufficient connection between the facts and the opinions, i.e. that
the opinions are reliable and relevant. TEX. R. EVID. 702; see Daubert v. Merrell Dow
Pharms., 509 U.S. 579, 590; 113 S. Ct. 2786; 125 L. Ed. 2d 469 (1993) (―Proposed testimony
must be supported by appropriate validation - i.e. 'good grounds,' based on what is
known.‖). "... [A] beekeeper need not have published his findings that bees take off into
the wind in a journal for peer review, or made an elaborate test of his hypotheses.
Observations of enough bees in various circumstances to show a pattern would be
enough to support his opinion. But there must be some basis for the opinion offered to
show its reliability. Experience alone may provide a sufficient basis for an expert's
testimony in some cases, but it cannot do so in every case." Gammill v. Jack Williams
Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex. 1998); see also In the Interest of D.S., 19 S.W.3d
525, 529 (Tex. App.—Fort Worth 2000, no pet.). This Court finds that the trial court
In the Matter of the Marriage of Bivins Page 12
properly admitted the expert testimony.
Once the court has determined the expert is properly qualified and the testimony
comports with Rule 702 and case law, the court must decide the weight to be given to
the opinion. See id. This Court will not invade the trial court’s decision regarding the
weight given an expert’s testimony unless there is a clear abuse of discretion. See E.I. du
Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995). This Court finds no
such abuse.
Bivins also takes issue with Foster and Barrientez testifying about ―workmanlike
state of repair.‖
With no cases construing this phrase in the context of the Family Code, the Court
looks to similar phrases in other areas of the law.
Claims for breach of implied warranty use a comparable phrase ―to repair in a
good and workmanlike manner.‖ The Texas Supreme Court defined good and
workmanlike as ―that quality of work performed by one who has the knowledge,
training, or experience necessary for the successful practice of a trade or occupation and
performed in a manner generally considered proficient by those capable of judging such
work.‖ Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 354 (Tex. 1987). Thus, the
inquiry is into the performance of the service provider. Id. at 355. In this case it is
undisputed that Bivins in the MSA agreed ―that all improvements are in workmanlike
state of repair at the time of signing this Decree, and will be of the same or better repair
on date of delivery.‖ They were not. Bivins’s attorney unsuccessfully questioned
several witnesses about when these damages occurred or the condition of the property
before the damage. All responses save one were, ―I don’t know.‖ Martinez alone
In the Matter of the Marriage of Bivins Page 13
testified, ―[the house] wasn’t like that when I left.‖ Bivins chose not to testify or present
any expert testimony.
Bivins’s third, fourth and fifth points of error relating to damages and expert
opinions are overruled.
ATTORNEY FEES
Bivins, by points of error six and seven, asserts that the trial court erred in not
limiting attorney fees and that they are not supported by the evidence.
Facts
In response to Bivins’s Request for Disclosure, Martinez designated her attorney
as an expert on attorney’s fees. In response to Requests for Production, she objected to
producing records from her attorney, except her contract which was produced,
asserting attorney-client privilege. Bivins filed Special Exceptions to Martinez’s First
Amended Original Petition for Enforcement and for Damages requesting more specific
details on attorney fees. It was denied. No Motion to Compel or request for a
Protective Order was considered by the trial court addressing objections to attorney-
client privilege.
Bivins objected at the trial to attorney testimony of time and fees which were
overruled. In response to an objection to a summary of costs not produced by Martinez,
the trial court properly refused to admit it. It was not produced in discovery.
The trial court partially granted summary judgment, special exceptions, and
struck an expert based on motions filed by Bivins. Martinez’s attorney testified about
his hourly rate, the number of hours expended on the case, and the costs he had paid on
behalf of his client. He further testified about his legal experience, that the time was
In the Matter of the Marriage of Bivins Page 14
necessary, and that the fees were reasonable in Ellis County. He testified that he had
$22,200 in fees and $1,891 in court costs. Martinez was awarded $20,000 as attorney
fees.
Holding
Where there are objections to discovery, the party seeking discovery can either
file a Motion to Compel or seek a ruling on objections. TEX. R. CIV. P. 193.4(a) or
215.1(b). The requestor waives the failure to produce documents when there is no
ruling on the objections. Pace v. Jordan, 999 S.W.2d 615, 622 (Tex. App.—Houston [1st
Dist.] 1999, pet. denied).
Bivins complains that Martinez did not refer to the relevant statute to recover
attorney fees. No Special Exception complained of any omission. It is waived in light
of Texas Family Code section 9.014 authorizing the award of attorney fees for suits to
enforce divorce decrees. TEX. FAM. CODE ANN. § 9.014 (West Supp. 2011).
The party requesting attorney fees is required to exclude fees that are not earned
in pursuing the claims presented during trial of the case. Normally, ―…a claimant must
segregate recoverable from unrecoverable fees. [And]…it is only when discrete legal
services advance both a recoverable and unrecoverable claim that they are so
intertwined that they need not be segregated.‖ Tony Gullo Motors I, L.P. v. Chapa, 212
S.W.3d 299, 313-314 (Tex. 2006).
We overrule Bivin’s issues on attorney fees.
In the Matter of the Marriage of Bivins Page 15
CONCLUSION
Having found no reversible error, we affirm the judgment of the trial court.
JANET LITTLEJOHN
District Judge
Before Chief Justice Gray,
Justice Davis, and
Judge Littlejohn1
Affirmed
Opinion delivered and filed December 6, 2012
[CV06]
1 Janet Littlejohn, Judge of the 150th District Court of Bexar County, sitting by assignment of the Chief
Justice of the Texas Supreme Court pursuant to Section 74.003(h) of the Government Code. See TEX.
GOV’T CODE ANN. § 74.003(h) (West 2005).
In the Matter of the Marriage of Bivins Page 16