Lea Percy McLaurin v. Scott Sutton McLaurin

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
 !
!
!
!
!
!
!
!
!
APPENDIX!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&
& &
 CAUSE NO. 2()()9..06775