                                                                              ACCEPTED
                                                                           01-14-00710-cv
                                                               FIRST COURT OF APPEALS
                                                                       HOUSTON, TEXAS
                                                                    8/12/2015 11:58:37 PM
                                                                    CHRISTOPHER PRINE
                                                                                   CLERK

                NO. 01-14-00710-CV
         _________________________________
                                                         FILED IN
                      IN THE                      1st COURT OF APPEALS
                                                      HOUSTON, TEXAS
            FIRST COURT OF APPEALS                8/12/2015 11:58:37 PM
                 HOUSTON, TEXAS                   CHRISTOPHER A. PRINE
         _________________________________                 Clerk


              LEA PERCY MCLAURIN,
                        Appellant

                          v.

            SCOTT SUTTON MCLAURIN,
                            Appellee
____________________________________________________

                BRIEF OF APPELLEE
____________________________________________________

             Todd Frankfort
             State Bar No. 00790711
             Richard L. Flowers, Jr.
             State Bar Number 07180500
             5020 Montrose Boulevard, Suite 700
             Houston, Texas 77006
             Telephone 713/654-1415
             Facsimile 713/654-9898
             Email: rflowers@rflowerslaw.com

        ATTORNEYS FOR SCOTT SUTTON MCLAURIN,
        APPELLEE
                          Oral Argument Not Necessary

      Pursuant to Tex. R. App. P. 39.7, Appellee, Scott Sutton McLaurin, requests
that this cause be decided without oral argument.




                                          1
                                               Table of Contents

Oral Argument Not Necessary .................................................................................1
Table of Contents ......................................................................................................2
Index of Authorities ..................................................................................................3
Record References & Abbreviations ......................................................................7
Statement of Facts ....................................................................................................9
Summary of the Argument ...................................................................................33
Argument and Authorities .....................................................................................34
    I.     LEA’S SUIT WAS FRIVOLOUS AND BROUGHT IN BAD
           FAITH, SO SANCTIONS WERE PROPER (APPELLANT
           ISSUE I. A. & B.) ........................................................................................34
    II. LEA DID NOT PRESERVE ERROR CONCERNING THE
        SANCTIONS ORDER, AND THE SANCTIONS ORDER
        PROVIDES THE BASIS FOR SANCTIONS. (APPELLANT
        ISSUE I. D.) ................................................................................................46
    III. THE TRIAL COURT WAS WITHIN ITS DISCRETION TO
         IMPOSE A DATE AND TIME CERTAIN FOR APPELLANT
         TO PAY THE SANCTIONS ORDERED. (APPELLANT
         ISSUE II.) ...................................................................................................49
    IV. ALTHOUGH THIS COURT IS NOT BOUND BY FINDINGS
        OF FACT, SUFFICIENT EVIDENCE EXISTS IN SUPPORT
        OF THE FINDINGS, THE SANCTIONS ORDER, AND THE
        DENIAL OF LEA’S REQUESTED RELIEF. (APPELLANT’S
        ISSUES I.C. AND 3) ...................................................................................52
CONCLUSION.......................................................................................................60




                                                           2
                                        Index of Authorities
Cases
Alexander v. Alexander,
956 S.W.2d 712, 714 (Tex. App.—Houston [14th Dist.] 1997, pet. denied) ... 44, 45

Am. Flood Research, Inc. v. Jones,
192 S.W.3d 581, 583 (Tex. 2006)............................................................................50

Braden v. Downey,
811 S.W.2d 922, 924 (Tex. 1991)............................................................................48

Bradt v. Sebek,
14 S.W.3d 756, 761 (Tex. App. – Houston [1st Dist.] 2000, pet. denied) ...............33

Bushell v. Dean,
803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g) ....................................................44

Byrnes v. Ketterman, 440 S.W.3d 688, 690 (Tex. App.—El Paso 2013, no pet.)...48

Catalina v. Blasdel,
881 S.W.2nd 295, 297 (Tex. 1994)..........................................................................51

Cire v. Cummings,
134 S.W.3d 835, 838 (Tex. 2004)............................................................................32

Cooter & Gell v. Hartmarx Corp.,
496 U.S. 384, 398, 110 S.Ct. 2447, 2457, 110 L.Ed.2d 359 (1990)................. 40, 43

Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 242 (Tex. 1985)............................................................................33

Elec. Data Sys. Corp. v. Tyson,
862 S.W.2d 728, 734 (Tex. App.—Dallas 1993, no writ) .......................................49

Elkins v. Stotts-Brown,
103 S.W.3d 664, 668-69 (Tex. App.—Dallas 2003, no pet.) ..................................35

Falk & Mayfield L.L.P. v. Molzan,
974 S.W.2d 821, 827 (Tex. App. – Houston [14th Dist.] 1998, writ denied) ..........34


                                                     3
Franz v. Katy Indep. Sch. Dist.,
35 S.W.3d 749, 755 (Tex. App.—Houston [1st Dist.] 2000, no pet.) .....................49

Gaspard v. Beadle,
36 S.W.3d 229, 239 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) ..............46

Greene v. Young,
174 S.W.3d 291, 301 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) ..... 35, 43

Harrison v. Harrison,
363 S.W.3d 859, 863 (Tex. App.—Houston [14th Dist.] 2012, no pet.) ................35

Hatteberg v. Hatteberg,
933 S.W.2d 522, 526 (Tex. App. 1994, no writ) .....................................................33

In re Barber,
982 S.W.2d 364, 366 (Tex. 1998)............................................................................32

In re Crow-Billingsley Air Park, Ltd.,
98 S.W.3d 178, 179 (Tex. 2003)....................................................................... 47, 48

In re King's Estate,
150 Tex. 662, 244 S.W.2d 660, 661 (1951).............................................................51

Keith v. Keith,
221 S.W.3d 156, 165 (Tex. App.—Houston [1st Dist.] 2006, no pet.) ...................47

Lewis v. Texas Emp. Ins. Ass'n,
151 Tex. 95, 97-98, 246 S.W.2d 599, 600 (1952) ...................................................44

Low v. Henry,
221 S.W.3d 609, 614 (Tex. 2007)..................................................................... 32, 38

Mattox v. Grimes County Com'rs Court,
305 S.W.3d 375, 386 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) ..........37

McGalliard v. Kuhlmann,
733 S.W.2d 694, 696-97 (Tex. 1986) ......................................................................51




                                                     4
Monroe v. Grider,
884 S.W.2d 811, 817 (Tex. App.—Dallas 1994), writ denied ................................35

Nath v. Texas Children’s Hosp.,
446 S.W.3d 355, 361 (Tex. 2014)............................................................... 33, 40, 43

O'Connor v. Towns,
1 Tex. 107 (1846) .....................................................................................................44

Pool v. Ford Motor Co.,
715 S.W.2d 629, 635 (Tex. 1986)............................................................................51

Robinson v. National Cash Register Co.,
808 F.2d 1119, 1131 (5th Cir.1987),
overruled on other grounds, 836 F.2d 866 (5th Cir.1988) ......................................35

Rudisell v. Paquette,
89 S.W.3d 233, 238 (Tex. App.—Corpus Christi 2002, no pet.) ............................46

Scott & White Mem'l Hosp. v. Schexnider,
940 S.W.2d 594, 596-97 (Tex. 1996) .............................................................. passim

SMB Partners, Ltd. v. Wightman,
01-99-00217-CV, 1999 WL 994057, at *1-2 (Tex. App.—Houston [1st Dist.] Oct.
28, 1999, no pet.) (not designated for publication)..................................................44

Thomas v. Capital Sec. Services, Inc.,
836 F.2d 866, 868 (5th Cir. 1988) ...........................................................................48

TransAmerican Natural Gas Corp. v. Powell,
811 S.W.2d 913, 917 (Tex. 2002)............................................................................40

Unifund CCR Partners v. Villa,
299 S.W.3d 92, 97 (Tex. 2009)......................................................................... 32, 38

Westergren v. Jennings,
441 S.W.3d 670, 677 (Tex. App.—Houston [1st Dist.] 2014, no pet.) ...................33
Statutes
Tex. Civ. Prac. & Rem. Code Ann. § 10.001 (Vernon)...........................................37


                                                           5
Tex. Civ. Prac. & Rem. Code Ann. § 10.002 (Vernon)...........................................38
Tex. Civ. Prac. & Rem. Code Ann. § 10.004 (Vernon)...........................................37
Rules
Fed. R. Civ. P. 11 .....................................................................................................40
Tex. R. App. P. 33.1.................................................................................................44
Tex. R. App. P. 38.1(i) .............................................................................................49
Tex. R. App. P. 44.1.................................................................................................46
Tex. R. Civ. P. 13 .............................................................................................. 34, 35
Tex. R. Civ. P. 308 ...................................................................................................47




                                                            6
                       Record References & Abbreviations

      All references to the Clerk’s Record will be noted by “CR” followed by the

appropriate page number (e.g. CR 17).

      All references to the Supplemental Clerk’s Record will be noted by “Supp.

CR” (e.g. Supp. CR 12).

      All references to the Reporter’s Record will be noted by “RR” followed by

the appropriate volume and page number (e.g. RR 2:22 refers to Reporter’s Record

Volume 2, Page 22).

      All references to the exhibits offered at trial by Appellant (Petitioner at trial)

will be noted by “PE ___” followed by the trial exhibit number, and page number,

if applicable.

      The exhibits offered at trial by Appellee (Respondent below) will be denoted

“RE ___” followed by the trial exhibit number and page number, if applicable.




                                           7
                             NO. 01-14-00710-CV
                         __________________________

                                  IN THE
                        FIRST COURT OF APPEALS
                             HOUSTON, TEXAS
                    ___________________________________

                          LEA PERCY MCLAURIN,
                                    Appellant

                                       v.

                        SCOTT SUTTON MCLAURIN,
                                       Appellee
             _________________________________________________

                            BRIEF OF APPELLEE
             __________________________________________________

TO THE COURT OF APPEALS:

      Appellee, Scott Sutton McLaurin (“Scott”), submits this Appellee’s Brief, in

response to Appellant’s Brief, filed by Lea Percy McLaurin (“Lea”). This matter

stems from Lea’s post-divorce filing of an enforcement action against Scott. At

the conclusion of trial, Scott was awarded sanctions against Lea for her having

filed a frivolous motion. All matters between the parties were heard in the 309th

Judicial District Court of Harris County, Texas, the Honorable Sherry Y. Dean,

presiding.




                                        8
                                     Statement of Facts

      To correct certain inaccuracies contained in Appellant’s Statement of Facts,

Scott offers this Statement of Facts.

      Lea and Scott, each a medical doctor by training, were married, but on

February 4, 2009, Lea filed a divorce action. (RR 1:46).

      In their divorce action, Lea’s counsel was J.D. Bucky Allshouse

(“Allshouse”), and Scott’s counsel was Richard L. Flowers, Jr. (“Flowers”) (PE 1).

The parties attended two mediation sessions in an effort to resolve the issues in

their divorce. (RR 3:45) They reached an agreement at mediation, which was

ultimately memorialized in a Final Decree of Divorce (“Decree”) (PE 1) and an

Agreement Incident to Divorce (“AID”) (PE 2). The parties signed the AID and

the trial court entered the Decree on September 3, 2010. (PE 1 & 2).

      On September 7, 2010 – four days following the divorce – Flowers sent a

letter to Allshouse, which, included the following pertinent statements:

                   • “I’m sending an assignment for Scott’s share of the savings
                     bonds. However, I think the bonds will have to be endorsed.”

                   • “The Lincoln Investment account is being divided as per the
                     AID. The actual securities are being divided so Lea will need
                     to let Ross McLaurin 1 know where he is to send her share of
                     these securities.”

                   • “Otherwise, here’s what I see as the remaining action items:


      1
          Ross McLaurin shall be hereinafter referred to as “Ross.”


                                                9
                         1. The savings bonds need to be divided. Lea has
                            possession of all the bonds so I need to know when
                            and where to pick them up from her.
                         2. Scott will exchange the diamond for his Rolex.
                            Again, please let me know when Lea’s ready to do
                            that.
                         3. Scott needs to get the plates, Christmas ornaments and
                            stuffed animals ready for Lea to pick up.
                         4. The parties need to make arrangements for copying
                            photos and videos.”

(RE 20). The letter was part of Scott’s effort to divide the property awarded to

each of the parties pursuant to the AID and Decree. (RR 6:25).

      Following the September 7 letter, Scott received additional documents from

Allshouse that he was to sign in order to transfer “things” to Lea. (RR 5:154).

      On September 8, 2010, Scott executed three transfer documents, assigning to

Lea various assets. (RE 22). Scott signed these documents in an effort to promptly

effectuate transfer following the conclusion of the divorce. (RR 6:26). Later,

Flowers sent a “corrected Assignment of Interest” to Allshouse for Lea’s signature

(R 23) to effectively divide the savings bonds. (RR 6:28).

      On Tuesday, January 4, 2011, Lea, by and through Daniel Lemkuil

(“Lemkuil”) filed a Motion to Enforce Final Decree of Divorce and Agreement

Incident to Divorce (the “Original Enforcement”) (Supp. CR 37). In the Original

Enforcement, Lea sought (generally and in addition to various unfounded tort

claims) to enforce the transfer of ten items awarded to Lea in the AID: (i) a

diamond given to Lea by Patrick Brannan (“Item 1”); (ii) “coins belonging to Lea

                                         10
or Christopher” (the parties’ son) (“Item 2”); (iii) real property in Oklahoma (“Item

3”); (iv) a First Colony Life Insurance Policy (“Item 4”); (v) a portion of an

account with Lincoln Investments (“Item 5”); (vi) various United States Savings

Bonds (“Item 6”); (vii) a 2006 Lexus GX470 (“Item 7”); (viii) the award of “fifty

percent (50%) net of taxes of ANY bonuses or reimbursements received by

Husband through April 30, 2010” (“Item 8”); (ix) the contents of safety deposit

boxes at BBVA Compass and Wells Fargo banks (“Item 9”); and (x) various

Christmas ornaments and other personal property (“Item 10”). (Supp. CR 37-44).

      Upon learning of the Original Enforcement, Flowers sent Lemkuil a letter

dated January 11, 2011, which – in pertinent part – said:

                   As a vital part of the reasonable inquiry you
                   are required to have done prior to initiating
                   this motion, I’m assuming you have spoken
                   to Bucky Allshouse and members of his
                   staff, including Rebecca Tipton about the
                   efforts they made along with my office to
                   conclude the property transfers. I invite you
                   to call Ross McLaurin, telephone number
                   713/789-0800, and inquire about his many
                   efforts to date to transfer property to your
                   client. You (sic) client refuses to cooperate
                   with anyone. She also refuses to transfer
                   property she has to my client.

(RE 24).




                                         11
       On January 25, 2011, Flowers sent a letter to Lemkuil “following up to

schedule a meeting to discuss what remains to be done to close this case.” (RE

26).

       On February 1, 2011, Lemkuil sent a letter to Flowers, asking Flowers to

make Items 1 through 10 available to him at a meeting scheduled for February 3,

2011. (RE 25).

       On February 3, 2011, Flowers and Lemkuil met at Flowers’ office,

ostensibly to resolve the matter. (RR 6:133; RE 27). Lemkuil abruptly ended the

meeting after a short period. Flowers then sent an email outlining Scott’s position

relative to the Original Enforcement, stating, “The September 7th letter [to

Allshouse] addresses nearly every item made the basis of your enforcement action.

Virtually every issue not addressed in my September 7th letter but made the basis

of your enforcement suit has never been requested or addressed until you filed your

lawsuit.” (RE 27). Flowers specifically addressed the following issues:

                                Item 1 (Diamond)

            “We’ve always stood ready to exchange the diamond for
            my client’s Rolex watch, but Lea refuses.”

                  Items 4 & 6 (First Colony & Savings Bonds)

            “Also attached are copies of assignments signed by my
            client last September and October which we’ve had ready
            to exchange for the assignments from your client to
            mine.”



                                        12
                          Item 5 (Lincoln Investments)

            “In my January 11, 2011 letter to you I invited you to call
            my client’s financial advisor, Ross McLaurin, and
            provided his telephone number, 713/789 – 0800. I know
            you never called Ross. If you had you would have
            learned about his efforts to transfer funds to your client.
            You also seemed to know nothing about the financial
            advisor Lea hired who Ross has been working with. You
            also knew nothing about the information Ross and Lea’s
            financial advisor had exchanged about the very issue
            made the basis of your lawsuit. You could have asked
            Ross to provide the documentation your client wants
            about the Lincoln account.”

                        Item 10 (Christmas Ornaments)

            “[Lea has] never attempted to arrange to pick up the
            plates, ornaments, and other items which have been
            boxed and ready to exchange for months.”

Id. Flowers concluded, stating, “Dan, if you pursue this lawsuit without making

any inquiry I will immediately file a bad faith claim against you and your client.

Handle it correctly and we’ll get it resolved.”     Id.   In response to Flowers’

February 3 email, Lemkuil pithily stated, “You are wrong. Strike three.” Id.

      On March 15, 2015, at 10:34 a.m., Lea non-suited the Original Enforcement.

(Supp. CR 47).

      That same day, at 2:09 p.m., Lea filed a Motion to Enforce Final Decree of

Divorce and Agreement Incident to Divorce (the “New Enforcement”). (Supp. CR

48). In her brief, Lea claims that she filed the New Enforcement after “having




                                        13
narrowed the issues,” but Items 1 through 10 in the New Enforcement were

identical to the Original Enforcement. (Supp. CR 37).

      On April 25, 2011, upon learning of the filing of the New Enforcement,

Flowers agreed to accept service on Scott’s behalf, and inquired as to Lemkuil’s

authority for serving a precept in what amounted to a breach of contract case. (RE

28). The record is void of any response from Lemkuil.

      On April 27, 2011, Flowers, having accepted service of a precept, inquired

as to the legal authority upon which Lemkuil relied. Lemkuil refused to discuss

the matter. (RE 29). At the conclusion of his April 27 letter, Flowers stated, “You

are urged once again to immediately non-suit this bad faith claim so as to mitigate

any further unnecessary expense to my client. It’s been very obvious since you

first appeared in this matter that you have made no inquiry into these facts

whatsoever.” Id. The record is void of any response from Lemkuil.

      Later in the day on April 27, 2011, Flowers sent a follow-up letter,

correcting a misunderstanding about a hearing date. (RE 30). At the conclusion of

the second April 27 letter, Flowers gave a similar warning to Lemkuil. Id. The

record is void of any response from Lemkuil.

      On Sunday, May 1, 2011, Flowers sent another email to Lemkuil, which

says, in part, “You’ve failed to respond to my letters regarding the improvident




                                        14
motion to enforce and the show cause order and precept you had issued.” (RE 31).

The record is void of any response from Lemkuil.

      On June 21, 2011, Flowers’ office sent another letter, again addressing each

of the items raised in the New Enforcement. (RE 32). The June 21 letter begins,

“I have called your office several times to discuss closing this case. I have not

heard back from you.      This is another effort at resolving this matter and to

minimize the time and unnecessary expenses accruing in concluding this matter.”

Id. Moreover, the June 21 letter specifically addresses each of Items 1 through 10.

Id. Rather than recite the entire contents of the June 21 letter, a true and correct

copy has been attached hereto as Appendix 1.

      After a few months, on August 18, 2011, Scott filed a Motion for Sanctions

for Bad Faith Filing, but Scott proceeded to trial on his Second Amended Motion

for Sanctions for Bad Faith Filing (“Sanctions Motion”).        (CR 3-8).     In the

Sanctions Motion, Scott sought recovery of his attorney’s fees, court costs, and

litigation expenses, jointly and severally from Lea and from Lemkuil. (Id.)

      On September 7, 2011, Flowers sent yet another email to Lemkuil after Lea

had appeared, unannounced, at Flowers’ office. (RE 33). The letter concludes,

“This is another amazing chapter of a ridiculously difficult case. There is no

conceivable way this could be worth the time and money which has been and will

be spent.” Id.



                                        15
      On May 25, 2012, Flowers sent “another attempt at settlement” to Lemkuil.

(RE 37). (The letter dated May 25, 2012 is among the voluminous attachments to

RE 37. For ease of reference and to save the Court’s time in reviewing exhibits, a

true and correct copy of the letter is attached hereto as Appendix 2 and cited as

“RE 37-A.”) In Flowers’ May 25 letter, he again tracks Items 1 through 10, states

his belief that each of the Items had been resolved, and offers to settle the matter.

(RE 37-A)

      On November 9, 2012, Lea filed 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 the Original

Enforcement and the New Enforcement. (Supp. CR 58). Over the course of the

litigation, Lea filed five different versions of her enforcement pleading, amended

her pleading four times, each time, either omitting causes of action that were

clearly not valid OR not changing the allegations in the pleading – AT ALL.

(Supp. CR 66, 71, 144)

      On March 27, 2013, Lea filed her Fourth Amended Motion to Enforce Final

Decree of Divorce and Agreement Incident to Divorce (“4th Amended

Enforcement”), in which she abandoned all prior allegations, EXCEPT for the

following:

             • The award of the diamond given by Patrick Brannan, and located
               in a safe deposit box at Chase Bank, Medical Center location;

                                         16
               • The “fifty percent (50%) net of taxes of ANY bonuses or
                 reimbursements received by Husband through April 30, 2010”; and

               • A cause of action for conversion against Scott.
(RE 55).

         During trial, each side testified on their own behalf. In addition, Scott called

one fact witness to present evidence of some of the difficulties that had been

encountered in transferring property to Lea. Given Lea’s sufficiency challenges

and challenges to the findings of fact, it is important to review a summary of the

pertinent testimony adduced at trial.

         Scott’s Testimony

         During trial, Scott testified that at the beginning of the lawsuit, he

recognized that he was being sued over a list of “about 10 things,” initially. (RR

6:68):

         Item 1 (Diamond) – Scott testified that there was some confusion, at least in

his mind, about which diamond Lea had, which diamond was in question, and

which diamond he was obligated to turn over to Lea. (RR 6:74). Scott said that he

turned over both the “mine cut diamond” and the “Brandon (sic) diamond.” (RR

5:129). He testified that he found one diamond in his safe, and – thinking it was

the Patrick Brannan Diamond –gave it to Lea. (RR 5:149). He later found a

second diamond, and turned it over to Lea, too. (RR 5:150). He further testified




                                            17
that each time Lea insisted that he had the Patrick Brannan Diamond, he looked for

it, and was unable to find it. (RR 6:74)

      Item 2 (Coins) – Scott testified that he did not have any of the coins

referenced in the AID.     (RR 5:133).      Flowers’ office confirmed as much to

Lemkuil in writing. (RE 32).

      Item 3 (Oklahoma Property) – Scott testified that he was not given a deed to

sign, transferring any interest in the Oklahoma property, but that when Lea finally

did send a deed, he “accepted it.” (RR 6:57-58) Correspondence from Flowers’

office informed Lea and Lemkuil of this fact. (RE 32)

      Item 4 (Life Insurance Policy) – Scott testified that he did not recall any

document pertaining to transfer of the First Colony Life Insurance policy to Lea

(RR 5:159-160); however, Scott did sign an Assignment of Interest dated

September 8, 2010, and received from Allshouse, which purported to transfer the

policy to Lea. (RE 22).

      Item 5 (Lincoln Investments) – Scott testified that he signed a document

transferring the Lincoln account to Lea. (RR 5:143).

      Item 6 (Savings Bonds) – Scott testified that he signed documents

transferring the applicable savings bonds to Lea, around the time their divorce was

finalized. (RR 5:159; RE 20, 22). Scott further testified on cross-examination that

he executed transfer documents for the savings bonds awarded to Lea “every time



                                           18
[he] was asked to do it.” (RR 5:107). Correspondence from Flowers’ office

confirms Scott’s testimony. (RE 20, 22, 27, 32, 37-A). Although at one point

during the litigation, Lea claimed that all of the savings bonds were lost, in fact,

Lea had some in her possession, and Scott had none. (RR 6:22).

      Item 7 (Lexus) – Scott maintained that he did not possess Lea’s Lexus keys.

(RR 5:132). Correspondence from Flowers’ office informed Lea and Lemkuil of

this fact. (RE 32, 37-A).

      Item 8 (Bonus & Reimbursement) – Scott testified that he recognized that he

had an obligation to pay Lea a portion of bonuses and reimbursement that he

received by April 21, 2010. (RR 5:139). Scott further testified that he was paid a

bonus for the first quarter 2010, but that he did not receive it until the end of April,

2010 – after April 21. (RR 6:10). Scott presented a copy of his bonus check (RE

7), identified the net amount of the bonus received, and testified that he paid Lea

one-half of that amount.      (RR 6:11-12).     Scott identified the cashier’s check

payable to Lea for half of his first quarter 2010 bonus. (RE 9; RR 6:12). Finally,

Scott testified that while investigating whether he had paid the correct amount of

bonus, he realized that on May 3, 2010, he received his “February draw check,”

and gave a reason for the delay in payment. (RE 5 & 6; RR 6:14-17). Scott

confirmed this additional draw check was paid after the date the parties signed the

AID. He further confirmed that Lea had never claimed any interest in this draw,



                                          19
but that upon receipt, he tendered to Lea a cashier’s check for half. (RE 8; RR

6:18-19).

      Item 9 (Safe Deposit Boxes) – Although Scott did not testify regarding the

existence (or not) of a safety deposit box to which Lea was entitled, RE 32 and 37-

A both state, “Scott doesn’t have a document listing the contents of the safe deposit

boxes at BBVA Compass or Wells Fargo Bank as of September 3, 2010.”

      Item 10 (Christmas Ornaments) – Scott testified that he made the Christmas

ornaments and other related personal property available for Lea, as required by the

AID, and the items sat, boxed at his residence for 1.5 years, and then at Flowers’

office because Lea refused to retrieve them. (RR 5:111-112).

      Lea’s Testimony

      Lea, in response to the questions, “What inquiries did you make into

whether or not Mr. McLaurin had your things before you sued him about it?” and

“You filed a lawsuit that preceded this one on the same issues, right, virtually?,”

stated:

                                 “I have no idea.”

(RR 3:103 & 60, respectively). Lea further testified that she did not see any of her

pleadings prior to filing, and could not vouch for their contents because she had not

read them. (RR 4:30). Lea testified that she was unaware of any of the efforts

made to settle the case (RR 4:32), but then – moments later – testified about a letter



                                         20
Lemkuil had received (RE 37), and admitted that she was aware of settlement

efforts. (RR 4:33).

       Testifying over the course of 4 of the 5 days that the case was presented, Lea

spoke at length about Items 1 through 10. Although Lea’s testimony was difficult

to follow at times and she received several admonishments from the trial court

concerning her answers (See, e.g. RR 2:50, 2:55, 2:60, 2:68, 3:20, 3:25, 3:28, 3:31,

3:39, 3:40, 3:42, 3:45, 3:57, 3:65, 3:101, 3:126, 3:1372, 4:16, 4:20, 4:36, 4:40,

4:44, 4:46, 5:18, 5:21, and 5:45), her testimony may be summarized as follows:

       Item 1 (Diamond) – Lea testified that she was awarded the Brannan

Diamond in the AID. (RR 2:48). She testified that she received a diamond from

Scott following their divorce, but that it was not the Brannan Diamond. (RR 2:54).

Lea, later, testified that it was possible that she had received the Brannan Diamond.

(RR 3:7). Later still, she testified that Scott had showed her the inside of his safe

deposit box, and that it contained 2 diamonds. (RR 3:117). Lea confirmed that she

is not a jewelry collector; has no specialized knowledge of diamonds; and has no

special training or knowledge to enable her to discern one diamond from another.

(RR 3:119-120).         Lea further admitted that she was “unsure” whether the

description of the Brannan Diamond contained in her pleading was accurate. (RR

3:131). Finally, Flowers asked: “You’ve made these comparisons if it wasn’t the

       2
          The trial court admonished Lea, this time, by saying, “And ma’am, I’m telling you right
now, if I hear you ask one more question, I’m going to fine you. Do you understand that?”


                                               21
round cut diamond it’s the old mine cut diamond. You put it in your pleading.

That’s what I’m asking you about. I’m asking you what investigation research,

inquiry, what sort of legwork, if you will, did you do to investigate that claim

before you made it?” (RR 3:138). Lea’s response: “Nothing.” Id.

       Item 2 (Coins) – In response to Flowers’ question “Did you ever send a

demand asking your husband -- former husband for coins and stamps out of the

safe deposit box?,” Lea stated, “I have no idea.” (RR 3:66). Moreover, despite

her testimony that she and Scott do not communicate via email and that she only

“occasionally” speaks to him on the telephone (RR 3:67), Lea testified that she

asked him for the coins (and stamps) on more than one occasion before she filed

the New Enforcement, but could not recall when or how many times. (RR 3:66-

67).

       Item 3 (Oklahoma) – Lea testified that she had asked Scott to execute a

Quitclaim deed to the Oklahoma property “several times,” but that he never signed

it. (RR 2:56-57). On cross examination, however, she stated that she did present

Scott with a deed, but did bring a copy to trial because she did not know to. She

testified that she gave the deed to Scott directly, but that the document was also

sent “by the attorney” to Scott and to Flowers’ office; and that she “had no idea”

whether anyone responded to the request. (RR 3:102-103). The record is void of

any such document, and Lea abandoned the issue at trial. (RE 55).



                                       22
      Item 4 (Life Insurance) – Lea testified that she believed Scott was holding

the copy of the life insurance policy that she was awarded pursuant to the AID

because “he’s mean” and for “revenge,” but had “no idea” whether he had

economic reasons for holding the policy. (RR 3:89) (emphasis added). She further

testified that prior to filing for divorce, , she had taken “some boxes” with “some”

financial documents out of the house. (RR 3:92). Lea’s removal of financial

documents would dove-tail with Scott’s assertion that he did not have the

insurance documents.

      Item 5 (Lincoln) – Regarding the Lincoln Investments account, Lea testified

that: (i) she hired Allen Weiner, a third party, to assist with dividing the Lincoln

account (RR 3:81); (ii) she refused to sign documents that would have transferred

her share of the Lincoln account to her (RR 3:78); (iii) she “had no idea” that the

funds could not be transferred to her without her providing account information

(RR 3:85); (iv) she – finally – admitted that she did not provide an account into

which her share could be transferred until August, 2012 (RR 3:85), (v) she was no

longer pursuing a claim against Scott related to the Lincoln account (RR 3:86), and

(vi) she had “no idea” how much money Scott had spent on lawyers dealing with

that issue (RR 3:87).

      Issue 6 (Bonds) – Lea admitted that she refused to sign documents that

would transfer her share of the savings bonds to her (RR 3:78), but she had also



                                        23
already received all of the savings bonds to which she believed she was entitled.

(RR 3:14).

      Issue 7 (Lexus) – Lea testified that, if she had sent a written demand for

return of the key prior to filing suit, she did not bring a copy of that demand with

her to court. (RR 3:66). When asked whether she received a letter from Flowers’

office, stating that Scott does not have the keys to the Lexus, Lea replied, “I have

no idea.” (RR 3:65). Lea gave the same response to an inquiry as to the value of

the Lexus key for which she sued. (RR 3:66). Lea was, in fact, advised in writing

that Scott did not have her Lexus key. (RE 32, 37-A).

      Issue 8 (Bonus & Reimbursement) – During cross-examination, the

following exchange occurred:

             Q:          (By Mr. Flowers) In that first paragraph [of page 3 of the
                         4th Amended Enforcement], just for clarity, I’ll read it
                         and you tell me if I read it correctly. ‘The bonuses and
                         reimbursements referenced in the Agreement Incident to
                         Divorce include all bonuses or reimbursements earned or
                         received net of taxes only from February 1, 2009 through
                         April 30th, 2010 in an amount not less than $8,526.31 nor
                         more than $75,310.89 prior to interest on the IMED pay,
                         together with other bonuses and reimbursement claims as
                         expressed below for an additional pre-interest claim of
                         $31,618.95.’
                         Did I read that correctly?
             A:          Umm, okay.
             Q:          Did I read it correctly?
             A:          Yes.
                                        *    *      *


                                        24
            Q:           (By Mr. Flowers) Can you please tell the Court what in
                         the world that means?
            A:           That he has agreed to pay me 50 percent net of taxes of
                         any bonus or reimbursement.
            Q:           Where did you get the number $8,526.31? Why is that
                         the minimal?
            A:           I’m not sure.
            Q:           Okay. Where did you get the number $75,310.89?
            A:           I’m not sure.
                                         *    *   *
            Q:           Okay. Let me break it up. I’m sorry. Bad question. Let
                         me start with IMED pay. Prior to interest on the IMED
                         pay, what is the interest on the IMED pay?
            A:           I’m not sure.

(RR 4:19-21).

      Ultimately, Lea was unable to testify as to an exact amount of money that

she was seeking or as to how any amount was calculated. (RR 4:26). At first, she

indicated that she needed additional paperwork, but could not identify any

document that had not been produced (RR 4:27), and admitted that she had not

asked the trial court to order production of documents. (RR 4:28).

      The following day, Lea testified that she was “not sure” whether she had

ever itemized her reimbursement claim for Scott (RR 5:71) or had ever sent the list

of expenses (RR 5:72-73). Lea “believed” the total amount owed to her was

$98,000 (RR 5:73), but was unable to offer any basis for the amount of the claim.

(RR 5:75-76).



                                         25
      Issue 9 (Safe Deposit Boxes) – Lea testified that, pursuant to the AID, she

was to receive the contents of two safe deposit boxes, one at BBVA Compass, and

one at Wells Fargo. (RR 2:70). She maintained she received the entire contents of

the Wells Fargo box, but was abandoning the claim. (RR 2:70-71). The record is

void of any accounting of items from the Wells Fargo safe deposit box to which

Lea claimed she was entitled.

      Issue 10 (Christmas Ornaments) – Lea testified that she (i) requested the

Christmas ornaments from Scott by sending him typewritten letters, (ii) “may or

may not” have copies of the letters, (iii) did not bring any such letters to court (RR

3:56), and (iv) could not remember the time frame of sending the letters.

(RR3:58). Although Lea testified that she believed she did not receive all of her

Christmas things, she did not ask the trial court to make any orders concerning

them (RR 3:14), and the record is void of any reference to any specific item still

outstanding.

      Ross McLaurin

      Scott called Ross McLaurin, his brother. Ross is employed with Lincoln

Investments, and acted as the parties’ investment advisor both before and during

the parties’ marriage. (RR 4:71-72). During the time that Ross managed the

parties’ money, Lea never complained about fees, did not question Ross’ honesty,

and did not write complaint letters to Lincoln. (RR 4:122). After the parties’



                                         26
divorce, Ross was to divide the accounts in conformity with the mediated

settlement agreement. (RR 4:75). A brokerage account and a retirement account

were to be divided. (RR 4:76). The retirement account called for a specific

amount to go to Lea, but in the brokerage account, he “took a pro-rata share of

each investment and each accounting that’s shared and divided it to each party.”

(RR 4:75-76). In arriving at the division, Ross “…was trying to be as impartial as

[he] could to give each person the equal share, after tax benefit, of the assets.” (RR

4:100).

      Ross testified that in order to initiate a transfer to Lea, she needed to provide

the account into which she wanted her shares placed, and that he had difficulty in

obtaining that information from Lea. (RR 4:75-76). Ross made effort to obtain the

information from Lea directly and from Mr. Weiner. (RR 4:78).

      Ross calculated the division of the account in September, 2010. (RR 4:90).

He discussed those calculations with Mr. Weiner in mid-November, 2010. (RR

4:79). Ross segregated Scott’s portion of the account into a separate account on

December 21, 2010. (RR 4:90). In early January, Ross also removed Scott’s share

of dividends that were paid into the account. (RR 4:91). The interest, dividends,

gains, and losses on Lea’s portion of the account remained with Lea. (RR 4:111).

      In speaking with Mr. Weiner in mid-November, 2010, Ross explained the

method by which the account was divided, and Mr. Weiner voiced no objection.



                                         27
(RR 4:79). Lea did not send any letters to Lincoln Investments, objecting to Ross’

division of the account or his management of it. (RR 4:99) Even after Ross and

Mr. Weiner reviewed a “spreadsheet with all of the details,” neither of them were

able to get Lea to designate an account for the transfer or sign paperwork necessary

to effect transfer of the Lincoln Investments account. (RR 4:79-80).

      Nearly two years later, Ross received a Brokerage and Client Account

Transfer Form, signed by Lea and dated August 22, 2012, that finally designated

the account into which Lea wanted her assets transferred.          (RR 4:81).    Ross

testified that Scott signed the document within less than a week following receipt,

and the assets eventually were transferred to Lea. (RR 4:82-83).

      Ross testified that at the end of 2012, when Lea attempted to transfer the

assets, she did not include all of the paperwork necessary to effectuate the transfer,

so “…[he] provided additional documentation to make the transfer occur, including

a letter from Scott, which he signed immediately, to expedite the transfer and make

it happen.” (RR 4:85). The transfer was completed on January 4, 2013, but the

delay was not a result of anything that Scott did. Id. Moreover, Ross testified that

he asked Lemkuil for assistance in expediting the transfer of Lea’s assets, and that

Lemkuil told him he would not assist. (RR 4:86-87).




                                         28
      Despite any whatever complaints she may have had, Lea still asked Ross to

transfer the assets to her Vanguard account (RR 4:125), and had dropped Lincoln

Investments complaint by the time of trial. (RR 4:126-127).

      Flowers Testimony

      Testifying as an expert on the issue of attorney’s fees, Flowers first received

notice of Lea’s enforcement action before any attempt at service via an email he

received from the district clerk’s office.    (RR 6:119).     Almost immediately,

Flowers reached out to Lemkuil in an effort to resolve the matter. When Flowers

initially inquired as to whether Lemkuil had reviewed the file, Lemkuil responded,

“why would he review the file, this is a new case.” (RR 6:120). From that point,

Flowers began to investigate the case himself, and realized that the breach of

contract matter had been improperly filed as a contempt case, with the issuance of

a precept (rather than citation). Id. Ultimately, that issue was resolved, but before

Flowers filed a motion and prevailed at the hearing. (RR 6:121).

      In addition to attending to the matter of the improperly issued precept,

Flowers continued his efforts to resolve the case. (RR 6:122; see e.g. RE 32, 37-

A). Flowers discovered that no effort had been made by Lemkuil or Lea to make

inquiry into the claims asserted prior to filing either lawsuit. Id. As early as

February, 2011, Flowers informed Lemkuil of his belief that no investigation had

been made. (RR 6:133-134).



                                         29
      Lea (through Lemkuil) served written discovery to which Scott (through

Flowers) had to respond (RR 6:122). Lea (through Lemkuil) noticed several

depositions which Flowers attended. (RR 6:124). There were several discovery

disputes, each of which required a discovery hearing before Judge David Farr,

312th Judicial District Court. Id. In November, 2011, everyone realized that Judge

Farr had previously mediated the parties’ temporary orders during a time when he

was not on the bench, so the matter was assigned to the 309th. Id. All of these

ancillary matters consumed substantial time and effort from Flowers and his staff.

      In addition to the several court appearances and trial resets that occurred

(RR 6:125), it proved necessary for Flowers to spend an extraordinary amount of

time trying to “sort out the very nebulous claims that had been made.” Id. Flowers

testified that “…up to this moment we didn’t know what the claims were. It’s been

difficult. It was very difficult to sort through that…a lot of attorney time to sort

through these various things to figure out what it was she claimed was missing.”

(RR 6:125-126).

      Flowers testified that the total amount invoiced by his firm was $68,844.25

based upon three invoices, which were collectively admitted into evidence. (RR

6:126; RE 36). Flowers further testified to an additional amount of $25,000.00,

which were the attorney’s fees Scott incurred through the trial of the case. (RR

6:127).



                                        30
      Trial Court Ruling

      At the conclusion of the evidence, the trial court took the matter under

advisement. (RR 6:148). On March 3, 2014, the trial court rendered its ruling, and

on April 8, 2014, the trial court entered its Final Judgment on Lea Percy

McLaurin’s Motion to Enforce and Scott Sutton McLaurin’s Motion for Sanctions

and Bad Faith Filing (the “Sanctions Judgment”). (CR 12).

      The Sanctions Judgment denied Lea the relief she sought (CR 13), granted

the Sanctions Motion (CR 13-15), and ordered sanctions, stating, in pertinent part:

                The Court having considered the pleadings,
                evidence, and arguments of counsel finds that the
                allegations    contained      in    LEA   PERCY
                                  th
                McLAURIN’s 4 Amended Motion to Enforce
                Final Decree of Divorce and Agreement Incident
                to Divorce are generally false, groundless and
                brought in bad faith. The lawyer filing these
                pleadings failed to make reasonable inquiry before
                filing said groundless and bad faith pleadings.
                Rule 13, Texas Rules of Civil Procedure. The
                Court makes the following findings in support of
                this final judgment for sanctions, to wit

                                     *   *    *

                The attorney who filed these pleadings failed to
                make the reasonable inquiry required prior to filing
                the suit. Further, after these fact were brought to
                the attention of the attorney during a meeting with
                the undersigned, he continued to refuse to dismiss
                this frivolous suit.

                The Court having considered the pleadings,
                evidence and argument of counsel GRANTS the

                                         31
                Motion for Sanctions for Bad Faith Filing filed by
                SCOTT SUTTON MCLAURIN. It is therefore,

                ORDERED, ADJUDGED and DECREED that
                SCOTT SUTTON MCLAURIN is hereby granted
                a judgment against LEA PERCY MCLAURIN as
                reimbursement for attorney’s fees incurred and
                paid in this case in the amount of Fifty Two
                Thousand Three Hundred Seventy Eight and
                88/100 Dollars ($52,378.88).        It is further
                ORDERED that all Lea PERCY MCLAURIN
                shall pay to SCOTT SUTTON MCLAURIN the
                judgment amount of $52,378.88 by cash, cashier’s
                check or money order on or before June 12, 2014
                at or before 3:00 PM, by delivering cash, cashier’s
                check or a money order in said amount payable to
                SCOTT SUTTON MCLAURIN at the law offices
                of Flowers & Frankfort, attention Richard L.
                Flowers, Jr., 5020 Montrose Blvd., Suite 700,
                Houston, Texas.

(CR 13-15).

      Lea timely appealed the Sanctions Judgment (CR 62), but has neither

superseded nor paid the amount of the judgment.

      Given the evidence presented at trial, the trial court was well within its

discretion to: (i) issue the Sanctions Order, (ii) to include a date and time certain by

which Lea was to comply with the sanctions issued, and (iii) to deny Lea the relief

she sought.

      The Sanctions Order should be AFFIRMED.




                                          32
                   Summary of the Argument

  I.   LEA’S SUIT WAS FRIVOLOUS AND BROUGHT IN BAD FAITH,
       SO SANCTIONS WERE PROPER (APPELLANT ISSUE I. A. & B.)

 II.   LEA DID NOT PRESERVE ERROR CONCERNING THE
       SANCTIONS ORDER, AND THE SANCTIONS ORDER
       PROVIDES THE BASIS FOR SANCTIONS. (APPELLANT ISSUE
       I. D.)

III.   THE TRIAL COURT WAS WITHIN ITS DISCRETION TO
       IMPOSE A DATE AND TIME CERTAIN FOR APPELLANT TO
       PAY THE SANCTIONS ORDERED. (APPELLANT ISSUE II.)

IV.    ALTHOUGH THIS COURT IS NOT BOUND BY FINDINGS OF
       FACT, SUFFICIENT EVIDENCE EXISTS IN SUPPORT OF THE
       FINDINGS, THE SANCTIONS ORDER, AND THE DENIAL OF
       LEA’S REQUESTED RELIEF. (APPELLANT’S ISSUES I.C. AND
       3)




                             33
                                 Argument and Authorities

     I.    LEA’S SUIT WAS FRIVOLOUS AND BROUGHT IN BAD
           FAITH, SO SANCTIONS WERE PROPER (APPELLANT
           ISSUE I. A. & B.)3

           A. STANDARD OF REVIEW & REQUIREMENTS FOR SANCTIONS

       Standard of Review

       A court’s imposition of a sanction order under is to be reviewed for abuse of

discretion.    Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); see also GTE

Communications Sys. Corp. v. Tanner, 856 S.W.2d 725, 730 (Tex. 1993) (applying

abuse of discretion standard for review of Rule 13 sanctions). The trial court’s

ruling should only be reversed upon a showing that the trial court “acted without

reference to any guiding rules and principals, such that its ruling was arbitrary or

unreasonable.” Id.; Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004). “The

trial court does not abuse its discretion if it bases its decision on conflicting

evidence and some evidence supports its decision.” Unifund CCR Partners v.

Villa, 299 S.W.3d 92, 97 (Tex. 2009) (citing In re Barber, 982 S.W.2d 364, 366

(Tex. 1998)).

       In conducting its review, the appellate court “must indulge every legal

presumption in favor of the trial court’s ruling and view the evidence in the light


       3
         To avoid confusion, the issue raised by Appellant’s Brief is listed (in parentheses) to
which the indicated heading is responsive.


                                                34
most favorable to the trial court’s ruling.” Hatteberg v. Hatteberg, 933 S.W.2d

522, 526 (Tex. App. 1994, no writ). A mere error in judgment by the trial court

does not constitute an abuse of discretion. Bradt v. Sebek, 14 S.W.3d 756, 761

(Tex. App. – Houston [1st Dist.] 2000, pet. denied). The Supreme Court of Texas

“…will not hold that a trial court abused its discretion in levying sanctions if some

evidence supports its decision.” Nath v. Texas Children’s Hosp., 446 S.W.3d 355,

361 (Tex. 2014).

      Moreover, “[t]he mere fact that a trial judge may decide a matter within his

discretionary authority in a different manner than an appellate judge in a similar

circumstance does not demonstrate that an abuse of discretion has occurred.”

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985). The

appellate court should “…make an independent inquiry of the entire record to

determine whether the trial court abused its discretion in imposing the particular

sanctions.” Westergren v. Jennings, 441 S.W.3d 670, 677 (Tex. App.—Houston

[1st Dist.] 2014, no pet.) No abuse of discretion occurs if the trial court decision is

based upon conflicting evidence where some evidence supports the decision.

Barber, 982 S.W.2d at 366. (Tex. 1998).

      Importantly, “[t]he degree of discretion afforded the trial court is…greater

when sanctions are imposed for groundless pleadings than when imposed for




                                          35
discovery abuse.” Falk & Mayfield L.L.P. v. Molzan, 974 S.W.2d 821, 827 (Tex.

App. – Houston [14th Dist.] 1998, writ denied).

      Rule 13

      “Courts impose sanctions against parties filing frivolous claims to deter

similar conduct in the future and to compensate the aggrieved party by reimbursing

the costs incurred in responding to baseless pleadings.” Scott & White Mem'l

Hosp. v. Schexnider, 940 S.W.2d 594, 596-97 (Tex. 1996). Rule 13 of the Texas

Rules of Civil Procedure provides, in relevant part, the following:

                   The signatures of attorneys or parties constitute a
                   certificate by them that they have read the
                   pleading, motion, or other paper; that to the best of
                   their knowledge, information, and belief formed
                   after reasonable inquiry the instrument is not
                   groundless and brought in bad faith or groundless
                   and brought for the purpose of harassment... If a
                   pleading, motion or other paper is signed in
                   violation of this rule, the court, upon motion or
                   upon its own initiative, after notice and hearing,
                   shall impose an appropriate sanction available
                   under Rule 215-2b, upon the person who signed it,
                   a represented party, or both.

Tex. R. Civ. P. 13. As used in Rule 13, the term “groundless” means that the suit

“had no basis in law or fact and [was] not warranted by good faith argument for the

extension, modification, or reversal of existing law.”         Id.    In making its

determination of whether a pleading was groundless, the trial court should use the

objective standard of whether the party and her counsel made a reasonable inquiry



                                         36
into the legal and factual basis of the claim, looking “to the facts available to the

litigant and circumstances at the time the suit was filed.” Harrison v. Harrison,

363 S.W.3d 859, 863 (Tex. App.—Houston [14th Dist.] 2012, no pet.).               In

addition, the trial court may consider the entire history of the case. Greene v.

Young, 174 S.W.3d 291, 301 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).

      In addition to showing that the offending pleading is groundless, the party

seeking sanctions must further demonstrate that it was brought in bad faith. Tex.

R. Civ. P. 13. “A party acts in bad faith when discovery puts him on notice that his

understanding of the facts may be incorrect, and he does not make reasonable

inquiry into the facts before filing the pleading.” Elkins v. Stotts-Brown, 103

S.W.3d 664, 668-69 (Tex. App.—Dallas 2003, no pet.) In other words, sanctions

may be imposed “…for a party’s or his counsel’s failure to inquire into the facts

after he is on notice the facts are not what he believes.” Monroe v. Grider, 884

S.W.2d 811, 817 (Tex. App.—Dallas 1994), writ denied (citing Robinson v.

National Cash Register Co., 808 F.2d 1119, 1131 (5th Cir.1987), overruled on

other grounds, 836 F.2d 866 (5th Cir.1988)).

      In this case, Lemkuil was notified that his understanding of the facts may be

incorrect as early as January, 2011, but he did not make further inquiry into the

facts. (RE 24, 25, 26, 27,) Instead, he filed the New Enforcement. (Supp. CR 48

& ___). Lemkuil’s investigation of Lea’s claims was minimal at best, but was



                                         37
certainly not adequate. At trial, Lea ended up abandoning all but 2 of the initial

Items 1 through 10 (RE 55), but not before Scott had to endure years of litigation

in disproving Lea’s nebulous claims. Lea admitted that she did “nothing” to

investigate her claims related to the Brannan Diamond (RR 3:138), and could not

substantiate any of the $98,000 bonus/reimbursement claim. (RR 5:73-75).

       The trial court properly granted sanctions because – examining the facts at

the time the New Enforcement was filed and considering the entire history of the

case, Lea’s pleading was groundless and, after she (or her lawyer) learned that the

facts may not what she believed, no reasonable inquiry was made. The trial court’s

judgment should be affirmed.

       Chapter 10 – Civil Practice and Remedies Code

       Similar to Rule 13, Chapter 10 of the Texas Civil Practice & Remedies Code

provides further relief for litigants, stating:

                 The signing of a pleading or motion as required by the
                 Texas Rules of Civil Procedure constitutes a
                 certificate by the signatory that to the signatory's best
                 knowledge, information, and belief, formed after
                 reasonable inquiry:

                 (1) the pleading or motion is not being presented for
                 any improper purpose, including to harass or to cause
                 unnecessary delay or needless increase in the cost of
                 litigation;

                 (2) each claim, defense, or other legal contention in
                 the pleading or motion is warranted by existing law or
                 by a nonfrivolous argument for the extension,

                                            38
                modification, or reversal of existing law or the
                establishment of new law;

                (3) each allegation or other factual contention in the
                pleading or motion has evidentiary support or, for a
                specifically identified allegation or factual contention,
                is likely to have evidentiary support after a reasonable
                opportunity for further investigation or discovery; and

                (4) each denial in the pleading or motion of a factual
                contention is warranted on the evidence or, for a
                specifically identified denial, is reasonably based on a
                lack of information or belief.

Tex. Civ. Prac. & Rem. Code Ann. § 10.001 (Vernon).

      In other words, “[s]anctions under chapter 10 of the Civil Practice and

Remedies Code are authorized if the evidence establishes that (1) a pleading or

motion was brought for an improper purpose, (2) there were no grounds for legal

arguments advanced, or (3) a factual allegation or denial lacked evidentiary

support.” Mattox v. Grimes County Com'rs Court, 305 S.W.3d 375, 386 (Tex.

App.—Houston [14th Dist.] 2010, pet. denied). When a court determines that a

litigant has filed a pleading in violation of Sec. 10.001, it may impose a sanction,

which may include “an order to pay to the other party the amount of the reasonable

expenses incurred by the other party because of the filing of the pleading or

motion, including reasonable attorney’s fees.” Tex. Civ. Prac. & Rem. Code Ann.

§ 10.004 (Vernon). Furthermore, “[t]he court may award to a party prevailing on a

motion under this section the reasonable expenses and attorney's fees incurred in



                                         39
presenting or opposing the motion, and if no due diligence is shown the court may

award to the prevailing party all costs for inconvenience, harassment, and out-of-

pocket expenses incurred or caused by the subject litigation.” Tex. Civ. Prac. &

Rem. Code Ann. § 10.002 (Vernon).

         B.   LEA  DID NOT MAKE THE APPROPRIATE INQUIRY BEFORE
              FILING THE NEW ENFORCEMENT, SO TRIAL COURT WAS
              WITHIN ITS DISCRETION TO ORDER SANCTIONS AGAINST HER.

      To support the Sanctions Motion, Scott needed competent proof that (1) a

reasonable inquiry into Lea’s allegations would have disclosed that not all the

allegations pled had or would likely have evidentiary support, and (2) Lea did not

make a reasonable inquiry before filing suit. Unifund, 299 S.W.3d at 97 (Tex.

2009) (citing Low, 221 S.W.3d at 617 (Tex. 2007))..

      Flowers notified Lemkuil that Lea’s claims were frivolous in January, 2011

(RE 24), at least twice in February, 2011 (RR 6:133; RE 27), at least twice in

April, 2011 (RE 29 & 30), and at least once in May, 2011 (RE 31). In June, 2011,

Flowers’ office sent Lemkuil a detailed letter, specifically addressing Items 1

through 10.    (RE 32).     The record is void of any evidence of Lemkuil’s

investigation of Lea’s claims following his receipt of any of these notifications

(especially after Flowers’ June, 2011 letter); instead, Lemkuil proceeded with

serving written discovery and noticing depositions, causing Scott’s prolonged

involvement in frivolous litigation – at great expense. (RR 6:122, 124, 125).



                                        40
      Lea has taken the position that her amending her pleadings to eliminate moot

issues renders the Sanctions Order improper because it is based, in part, on the

eliminated allegations, a situation similar to that presented in Scott & White

Memorial Hospital v. Schexnider. In Scott & White, the plaintiffs filed suit against

some 33 defendants in a medical malpractice suit. Scott & White, 940 S.W.2d at

595 (Tex. 1996). All 33 defendants, filed a motion for summary judgment, but

before the trial court could rule, plaintiffs nonsuited all but two defendants by

omitting them from an amended pleading. Id. The trial court ended up granting

summary judgment in favor of the remaining defendants, after which all

defendants moved for sanctions pursuant to Rule 13, which the trial court granted.

Id. The Austin Court of Appeals overruled the sanctions order. Id. In overturning

the court of appeals, the Supreme Court of Texas followed the United States

Supreme Court holding interpreting Federal Rule of Civil Procedure 11 (prior to

that rule’s amendment to allow a “safe-harbor”):

                   Baseless filing puts the machinery of justice
                   in motion, burdening courts and individuals
                   alike with needless expense and delay. Even
                   if the careless litigant quickly dismisses the
                   action, the harm triggering Rule 11’s
                   concerns has already occurred. Therefore, a
                   litigant who violates Rule 11 merits
                   sanctions even after a dismissal. Moreover,
                   the imposition of such sanctions on abusive
                   litigants is useful to deter such misconduct.
                   If a litigant could purge his violation of Rule
                   11 merely by taking a dismissal, he would

                                         41
                   lose all incentive to “stop, think and
                   investigate more carefully before serving
                   and filing papers.

Id. at 597 (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 398, 110 S.Ct.

2447, 2457, 110 L.Ed.2d 359 (1990) (citation omitted); see also Fed. R. Civ. P.

11).

       Similarly, Lea should not be permitted to escape sanctions for her frivolous

claims on the basis that she eliminated those claims along the way. Lea did not

conduct any investigation of her claims prior to filing suit, and had she done so, the

ensuing two and a half years of litigation would probably not have occurred. The

Sanctions Order should be affirmed.

          C. THE SANCTIONS ORDERED BY THE TRIAL COURT ARE “JUST,”
             AND SHOULD BE UPHELD.

       In considering whether sanctions ordered by a trial court comport with due

process, the Supreme Court of Texas, in TransAmerican Natural Gas Corp. v.

Powell, adopted a two prong test. See Nath, 446 S.W.3d at 363 (Tex. 2014).

“First, a direct relationship must exist between the offensive conduct and the

sanction imposed. This means that that a just sanction must be directed against the

abuse and toward remedying the prejudice caused the innocent party.”

TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 2002).

“Second, just sanctions must not be excessive. The punishment should fit the

crime.” Id.

                                         42
In this case, the trial court heard the following evidence:

          • Scott was in the process of executing
            documents to effectuate the transfer of Lea’s
            property almost immediately following their
            divorce. (RR 5:154, 6:26).

          • Without warning or investigation, Lea filed
            a contempt action in an effort to enforce the
            AID, a contract. (Supp. CR 37; RR 6:119-
            120).

          • When Flowers attempted to resolve the
            matter before protracted litigation occurred,
            it became apparent that no investigation had
            occurred. (RR 6:120).

          • After Flowers informed Lemkuil that the
            facts may not be as Lemkuil understood,
            Lemkuil     non-suited       the     Original
            Enforcement    and      filed    the    New
            Enforcement, a virtually identical pleading.
            (RE 27; Supp CR 47 & 48)

          • Substantial attorney and staff time was
            devoted to responding to discovery and
            attempting to figure out what property Lea
            claimed she did not receive. (RR 6:125-
            126).

          • Lea conducted several depositions of
            witnesses (RR 6:124), but the record does
            not reflect that any of them were used at
            trial.

          • By trial, Lea had abandoned all but two of
            the claims related to Items 1 through 10:
            issues related to the Brannan Diamond and
            bonus/reimbursements. (RE 55).


                                   43
               • Lea did “nothing” to investigate her claims
                 related to the Brannan Diamond before
                 filing suit. (RR 3:138).

               • Lea has no special training or knowledge to
                 enable her to discern one diamond from
                 another (RR 3:119-120), and it was possible
                 that she had received the Brannan Diamond.
                 (RR 3:7).

               • On April 30, 2010, Scott received a bonus
                 for the first quarter of 2010 in the net
                 amount of $12,955.27 (RE 7), and prior to
                 her filing the Original Enforcement or the
                 New Enforcement, he paid Lea the sum of
                 $6,877.63, by cashier’s check. (RE 9).

               • Lea was “not sure” how the damages related
                 to bonus/reimbursement contained in her
                 pleading were calculated. (RR 4:19-21).

               • In defending against the frivolous suit(s) Lea
                 filed, Scott incurred attorney’s fees and
                 expenses in the amount of $68,844.25 (RE
                 36; RR 6:126), plus an additional
                 $25,000.00 incurred through the trial of the
                 case (RR 6:127).

      Scott incurred $93,844.25 in attorney’s fees, and asked the trial court to

sanction Lea in that amount. (RR 6:127). After considering the evidence, the trial

court sanctioned Lea in the amount of $52,378.88 (CR 29), an amount that is over

$41,000 less than the amount Scott requested.




                                       44
      A sanction “…should be no more severe than necessary to satisfy its

legitimate purposes.” Nath, 446 S.W.3d at 363 (Tex. 2014). Two legitimate

purposes of sanctions against frivolous claimants are the deterrence of similar

conduct in the future, and the compensation of the aggrieved party by reimbursing

the costs incurred in responding to baseless pleadings. Scott & White, 940 S.W.2d

at 597 (Tex. 1996).

      Here, Lea, through her abusive litigation and her failure to “stop, think and

investigate more carefully before serving and filing papers,” caused Scott to incur

nearly $100,000.00 in attorney’s fees and expense related to his defense. Cooter &

Gell, 496 U.S. at 398, 110 S.Ct. at 2457, 110 L.Ed.2d 359 (1990). Moreover, in

issuing sanctions, the trial court may consider the entire history of the case.

Greene, 174 S.W.3d at 301 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).

      The trial court made specific findings related to certain of Items 1 through

10, considered the pleadings and evidence presented (including the entire case

history), and, based upon such evidence and findings, “therefore” ordered

sanctions against Lea. (CR 13-15).

      The sanctions ordered by the trial court were directly related to Lea’s and

Lemkuil’s conduct, were directed against the abuse and towards remedying the

prejudice caused to Scott, and were not excessive; therefore, the Sanctions Order

should be affirmed.



                                        45
    II.   LEA DID NOT PRESERVE ERROR CONCERNING THE
          SANCTIONS ORDER, AND THE SANCTIONS ORDER
          PROVIDES THE BASIS FOR SANCTIONS. (APPELLANT
          ISSUE I. D.)

          A. LEA’S FAILURE TO PRESERVE ANY PERCEIVED ERROR IN THE
             SANCTIONS ORDER RESULTS IN HER WAIVING COMPLAINTS ON
             APPEAL.

      It is well established – since the beginning of Texas jurisprudence – that

“…to preserve a complaint for appellate review, a party must present to the trial

court a timely request objection or motion, state the specific grounds therefor, and

obtain a ruling.” Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g);

Lewis v. Texas Emp. Ins. Ass'n, 151 Tex. 95, 97-98, 246 S.W.2d 599, 600 (1952);

see also O'Connor v. Towns, 1 Tex. 107 (1846); Tex. R. App. P. 33.1. It follows

that an appellant must object to a lack of particularity of a sanctions order in the

trial court before it may raise the complaint on appeal. Alexander v. Alexander,

956 S.W.2d 712, 714 (Tex. App.—Houston [14th Dist.] 1997, pet. denied); accord

SMB Partners, Ltd. v. Wightman, 01-99-00217-CV, 1999 WL 994057, at *1-2

(Tex. App.—Houston [1st Dist.] Oct. 28, 1999, no pet.) (not designated for

publication).

      In the instant case, the record is devoid of any objection by Lea to the lack of

specificity of the Sanctions Order, about which she now complains. Lea’s point of




                                         46
error relating to the specificity of the Sanctions Order, accordingly, should be

overruled. Alexander, 956 S.W.2d at 714.




                                      47
          B. EVEN IF LEA HAD PRESERVED ERROR, IT IS HARMLESS ERROR,
             SO THE SANCTIONS ORDER SHOULD BE AFFIRMED.

      “A Rule 13 sanction order must be supported by specific allegations of good

cause,” and the failure to do so may be an abuse of discretion. Gaspard v. Beadle,

36 S.W.3d 229, 239 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). Such a

failure may be harmless error if a trial court’s findings of fact and conclusions of

law provide the particulars of good cause. Id. The Corpus Christi Court of

Appeals has concluded that error by the trial court in failing to state the particulars

of good cause may be harmless based upon whether the trial court “…did not so

‘obscure its reasoning’ as to prevent…being able to present [the] issue on appeal.”

Rudisell v. Paquette, 89 S.W.3d 233, 238 (Tex. App.—Corpus Christi 2002, no

pet.) (citations omitted); see also, Tex. R. App. P. 44.1.

      In the instant case, the trial court made specific findings in the Sanctions

Order concerning Item 1 (diamond), Item 2 (coins), Item 3 (Oklahoma property),

Item 5 (Lincoln Investment account), Item 6 (savings bonds), and Item 10

(Christmas ornaments, etc.). (CR 28-29). In addition, the trial court’s Findings of

Fact and Conclusions of Law (collectively, the “Findings of Fact”) made specific

findings regarding each of the items addressed in the Sanctions Order. (CR 34-38).

On the final page of the Findings of Fact, the trial court judge interlineated on the

typewritten document, which concluded, “After the facts surrounding Lea’s, by

                                          48
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.” (CR 38)

      Even if Lea had not waived her objection to the Sanctions Order’s lack of

particularity, the Sanctions Order and the Findings of Fact contain sufficient

particularity such that the trial court did not obscure its reasoning to the extent that

Lea was prevented from being able to present the issue for appeal. (See CR 13-15,

34-38). Moreover, the findings contained in the Sanctions Order and the Findings

of Fact give sufficient evidence that the sanctions ordered by the trial court

“…were carefully weighed and imposed in an appropriate manner when justified

by the circumstances.” Keith v. Keith, 221 S.W.3d 156, 165 (Tex. App.—Houston

[1st Dist.] 2006, no pet.).

      The Sanctions Order should be affirmed.

   III.   THE TRIAL COURT WAS WITHIN ITS DISCRETION TO
          IMPOSE A DATE AND TIME CERTAIN FOR APPELLANT
          TO PAY THE SANCTIONS ORDERED. (APPELLANT ISSUE
          II.)

          A. LEA DID NOT SUPERSEDE THE SANCTION ORDER WHILE ON
             APPEAL, AS PERMITTED UNDER TEXAS LAW.

      Texas Courts have an affirmative duty to enforce their judgments. In re

Crow-Billingsley Air Park, Ltd., 98 S.W.3d 178, 179 (Tex. 2003); Tex. R. Civ. P.

308. Lea has taken the position that her having appealed the Sanctions Order

                                          49
should – in effect – abate the trial court’s ability to enforce it; however, the

Supreme Court of Texas and the other appellate courts have held otherwise. Id.

(“Our procedural rules allow a judgment debtor to supersede a judgment, thereby

suspending enforcement, by posting security set by the trial court, not by merely

filing an appeal.”); Byrnes v. Ketterman, 440 S.W.3d 688, 690 (Tex. App.—El

Paso 2013, no pet.) (holding that the losing party “has a choice to either submit to

the judgment or supersede the judgment by filing of a proper bond while the case is

pending appellate review”).

      The Supreme Court of Texas addressed an issue with a similar argument in

Braden v. Downey, a mandamus proceeding where a district judge ordered a

litigant to pay sanctions, and gave a specific deadline by which the sanctions

needed to be paid. Braden v. Downey, 811 S.W.2d 922, 924 (Tex. 1991). In

Braden, the deadline for payment preceded the final resolution of the litigation in

the trial court. Id. The relator contended that the imposition of the monetary

sanctions would threaten his ability to continue the litigation. Id. In determining

the circumstances under which appeal would provide an adequate remedy at law,

the Braden court reasoned that deferral of the due date for payment of the sanction

until entry of a final judgment would afford the sanctioned party an opportunity to

supersede the judgment and perfect his appeal. Id. at 929 (citing Thomas v.

Capital Sec. Services, Inc., 836 F.2d 866, 868 (5th Cir. 1988)).



                                         50
      In the instant case, the Sanctions Order allowed Lea a period of over two (2)

months to pay the sanctions, giving her plenty of time to have superseded the

Sanctions Order, pending the outcome of this appeal; however, she did not avail

herself of supersedeas relief, so Lea’s Issue 2 should be overruled. See Elec. Data

Sys. Corp. v. Tyson, 862 S.W.2d 728, 734 (Tex. App.—Dallas 1993, no writ).

         B. LEA DID NOT ADEQUATELY BRIEF ISSUE 2, SO THIS            COURT
            SHOULD AFFIRM THE JUDGMENT OF THE TRIAL COURT.

      Aside from one case relating to waiver of appeal upon payment of judgment

– an issue Scott does not contest – Lea cites no authority for the position she

adopts related to the deadline for payment of the sanctions imposed by the trial

court, as required by Tex. R. App. P. 38.1(i). Her failure to do so constitutes a

waiver of the issue on appeal, so Issue 2 should be overruled, and the Sanctions

Order should be affirmed. Franz v. Katy Indep. Sch. Dist., 35 S.W.3d 749, 755

(Tex. App.—Houston [1st Dist.] 2000, no pet.); Tex. R. App. P. 38.1(i).

         C. THIS COURT   HAS RULED ON THE ISSUE OF WHETHER THE
            SANCTIONS ORDERED BY THE TRIAL COURT CONSTITUTE A
            DEBT, SO SCOTT DOES NOT ADDRESS THAT ISSUE HERE

      In her Issue 2, Appellant has taken the position that the sanction awarded in

the Sanction Order is an “adjudicated debt” for which she cannot, constitutionally,

be imprisoned, an issue which the parties briefed extensively in No. 01-14-00920-

CV, Appellant’s habeas application. This Court granted Lea’s petition for habeas

relief on the basis that “Lea cannot be imprisoned pursuant to either civil or

                                        51
criminal contempt for failing to pay a debt.” In re McLaurin, 01-14-00920-CV,

2015 WL 1967536, at *4 (Tex. App.—Houston [1st Dist.] Apr. 30, 2015, no pet.).

Based on this Court’s prior ruling, Scott will not address whether the awarded

sanction constitutes a debt.

   IV.     ALTHOUGH THIS COURT IS NOT BOUND BY FINDINGS
           OF FACT, SUFFICIENT EVIDENCE EXISTS IN SUPPORT
           OF THE FINDINGS, THE SANCTIONS ORDER, AND THE
           DENIAL OF LEA’S REQUESTED RELIEF. (APPELLANT’S
           ISSUES I.C. AND 3)4

           A. APPELLATE  COURTS MUST INDEPENDENTLY REVIEW THE
              ENTIRE RECORD WHEN EXAMINING A SANCTIONS ORDER, SO
              THEY ARE NOT BOUND BY THE TRIAL COURT’S FINDINGS OF
              FACT AND CONCLUSIONS OF LAW. (APPELLANT ISSUE I. C.)

       “In reviewing sanctions orders, the appellate courts are not bound by a 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.” Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex.

2006). Since appellate courts are not bound by the trial court’s findings of fact and

conclusions of law, it seems that Lea’s point challenging them should be

disregarded as moot.



       4
         Out of an abundance of caution, Lea’s challenges to the findings of fact and conclusions
of law will be addressed; however, in an effort to most efficiently present this Court with the
appropriate factual review, Scott will review the trial court evidence only one time, in response
to Lea’s various challenges.


                                               52
           B. STANDARD   OF REVIEW FOR CHALLENGED FINDINGS OF FACT
                                           5
               AND FOR FACTUAL SUFFICIENCY

       Findings of fact following a bench trial are reviewable for factual sufficiency

of the evidence under the same standards used to review a jury’s finding. Catalina

v. Blasdel, 881 S.W.2nd 295, 297 (Tex. 1994).                      In determining a factual

sufficiency challenge, the reviewing court must weigh and consider all of the

evidence and determine (i) whether the evidence in support of a finding is so weak

as to be clearly wrong and unjust, or (ii) whether the finding is so against the great

weight and preponderance of the evidence as to be clearly wrong and manifestly

unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); Pool v. Ford

Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); In re King's Estate, 150 Tex. 662,

244 S.W.2d 660, 661 (1951).

       Unchallenged findings of fact with a reporter’s record are binding on an

appellate court unless the contrary is established as a matter of law or if there is no

evidence to support the finding. McGalliard v. Kuhlmann, 733 S.W.2d 694, 696-

97 (Tex. 1986).

           C. SUFFICIENT EVIDENCE EXISTS TO SUPPORT EACH OF THE TRIAL
              COURT’S FINDINGS OF FACT AND THE DENIAL OF LEA’S
               REQUESTED RELIEF


       5
          While Lea, in Appellant’s Brief, does not specifically state that she is challenging the
factual sufficiency of the evidence supporting the denial of her requested relief, she does seem to
apply the same standard, stating that “great weight and preponderance of the evidence supported
[her position].” Again, out of an abundance of caution, Scott has included a discussion of the
factual sufficiency standard.


                                                53
       Lea has challenged 24 of the 29 findings of fact issued by the trial court as

well as the factual sufficiency of the evidence supporting the denial of Lea’s

requested relief. Sufficient evidence exists in support of each of the challenged

findings, as follows 6:




       6
         Rather than recite each individual finding of fact herein, Scott has attached the Findings
of Fact as Appendix 3, for ease of referral by this Court.


                                                54
      Findings 3, 4, 5, 6, 7 – Amended Enforcement Pleadings

      At Flowers’ request, the trial court took judicial notice of its file, including

the Original Enforcement and each amendment to the Original Enforcement, over

Lea’s objection. (RR 3:38). Lea’s statements to the effect that the clerk’s record

does not contain such a motion are curious in that Lea designated the original

clerk’s record, omitting each amended enforcement pleading, even though a

reference to each amended enforcement pleading is contained in the Findings of

Fact. The Original Enforcement is, in fact, contained in the clerk’s record (Supp.

CR 48-55), as are the 1st Amended enforcement pleading (Supp. CR 58-65), the 2nd

Amended enforcement pleading (Supp. CR 66-70), the 3rd Amended enforcement

pleading (Supp. CR 71-76), and the 4th Amended enforcement pleading (Supp. CR

144-148).

      Additionally, the record is replete with references, by Lemkuil, to the

various causes of action that Lea had, at one point, included, but had since

abandoned. (See, e.g. RR 2:57, 58, 69). The argument that the trial court did not

consider the allegations contained in these pleadings is untenable.

      Additionally, the Findings of Fact specifically refer to each of the amended

enforcement pleadings, stating, “Lea, by and through her attorney of record, failed

to make reasonable inquiry into the facts surrounding the allegations contained in



                                         55
the [New] Enforcement, the [1st] Amended Enforcement, the 2nd Amended

Enforcement, the 3rd Amended Enforcement, or the 4th Amended Enforcement,

prior to filing each such pleading.”

      The trial court took judicial notice of its file and these documents are

contained as part of the clerk’s record, so Findings 3 through 7 are appropriate.

      Findings 11, 12, & 13 – Savings Bonds Assignments of Interest

      The evidence adduced at trial was that, more than once, Scott signed

documents purporting to transfer the applicable savings bonds to Lea. (RR 5:159;

RE 20). The assignment document referenced in Finding 11 was prepared by

Lea’s then counsel of record, and Scott signed it. (RR 5:154-155). During the

course of the litigation, Lemkuil determined that the parties were not using the

appropriate forms for the transfer of these documents, and, as referenced in

Finding 13, asked that new documents be executed, which Scott received on March

8, 2015, and executed on March 19, 2013. (See RR 5:146).

      The purpose of the assignment document referenced in Finding 12 (included

in RE 23) was to transfer savings bonds to Scott, which – as indicated in

Appellant’s Brief – is “of no moment.”

      Finding 14 – Attempted exchange of Rolex for Diamonds

      Flowers attempted to exchange the Brannan Diamond for Scott’s Rolex

watch on several occasions, all of which are included in the record. (RE 20, 27,



                                         56
and 32). Moreover, Flowers conducted an extensive cross-examination of Lea

concerning the Rolex watch, its whereabouts, and whether she was asked to return

it (RR 3:94-101); Lea gave the following responses:

                 • “I never swore I didn’t have it. You didn’t
                   ask for it.” (RR 3:94).

                 • That the divorce had been over for 2 years
                   before sending the watch. (RR 3:95-96).

                 • “I don’t know when [you asked for it.]”
                   (RR 3:97).

                 • In response to the question, “Is it still your
                   testimony that there were no written
                   demands made of you for that watch before
                   you sent that watch to my office through Mr.
                   Lemkuil almost two years after the fact?,”
                   Lea replied, “I don’t know.” (RR 3:101).

For Lea to now take the position that no evidence was presented at trial concerning

the Rolex watch and a proposed exchange for the Brannan Diamond is simply

unfounded.

        Finding 15 – Delivery of Diamonds

        Lea testified that it is possible that she received the Brannan Diamond. (RR

3:7).

        Findings 16, 17, 18, & 19 – Christmas Ornaments & Photos

        Like the Rolex watch, Flowers, on Scott’s behalf, tried to make

arrangements for Lea to retrieve the Christmas ornaments, etc. on numerous


                                         57
occasions, each of which is reflected in the record. (RR 5:111-112; RE 27, 32, 33,

37-A). Moreover, Lea did appear, unannounced at Flowers’ office for the purpose

of retrieving these items, mentioned that not all of the property was present, and

took the property that WAS present, but never specified what items she believed to

be missing (RE 33).

      Findings 20 & 21 – Bonus/Reimbursement

      Lea did not, in fact, make demand for any alleged money due prior to filing

the Original Enforcement or the New Enforcement, as none is apparent from the

record.   The record reference given in Appellant’s Brief in support of their

“response” to Finding 20 deals with the transfer of the Lincoln Investments

account, which is not the subject matter of the finding.

      Scott testified that a week prior to giving testimony on September 16, 2013,

he became aware that during the 1st quarter of 2010, he received mileage checks

totaling $150, and that Lea should receive 50% of that amount. (RR 5:140)

      Findings 22, 23 & 24 – Oklahoma Property

      The evidence concerning a deed to the Oklahoma property was not

conflicting, as Lea asserts; on any of the 5 days of trial, she could not produce a

copy of a deed that she had sent to Scott for signature. (RR 3:102-103) Lea

further admitted that she “had no idea” whether she checked into the deed issue




                                         58
before filing suit about it. Id. Scott agrees that Lea did not send a deed for Scott’s

signature until after the litigation had started, on May 3, 2012.

      Findings 25, 26, & 27 – Lincoln Investment

      Lea has taken the position that the attempts and difficulties experienced in

transferring her portion of the Lincoln Investment account are “irrelevant”;

however, Lea did not object as to relevance to ANY of the questions asked of her,

of Scott, or of Ross concerning these items, so the objection would be waived.

Moreover, the individual Lea hired to review the transfer of these funds approved

Ross’ calculations of the division. (RR 4:79). The fact that Lea delayed in

providing an account into which assets should be transferred is undisputed. Scott

and Ross tried for nearly 2 years to receive the information from her (RR 4:81),

and she did not complain about any of the calculations until August, 2012. (See

PE 19).

      Lea testified that: (i) she hired Allen Weiner, a third party, to assist with

dividing the Lincoln account (RR 3:81); (ii) she refused to sign documents that

would have transferred her share of the Lincoln account to her (RR 3:78); (iii) she

“had no idea” that the funds could not be transferred to her without her providing

account information (RR 3:85); (iv) she – finally – admitted that she did not

provide an account into which her share could be transferred until August, 2012

(RR 3:85), (v) she was no longer pursuing a claim against Scott related to the



                                          59
Lincoln account (RR 3:86), and (vi) she had “no idea” how much money Scott had

spent on lawyers dealing with that issue (RR 3:87).

      Lea has not cited any evidence of the “more accurate percentage” for which

she was hoping by filing suit.

      Findings 28 & 29 – Reasonable Inquiry

      Scott has reviewed evidence in support of these findings, above, in Section

I.B., and disagrees that these findings are not the basis for sanctions. See Scott &

White, 940 S.W.2d at 596 (Tex. 1996).

                                 CONCLUSION

      Lea’s suit was frivolous and brought in bad faith because she did not make

adequate inquiry into the facts prior to filing, and even after she learned that the

facts may not be as she believed, she and her lawyer continued to pursue a trial

regarding Lea’s spurious claims. The Sanctions Order and the Findings of Fact are

sufficiently specific to support sanctions. Sufficient evidence exists to support the

Findings of Fact, the sanctions ordered, and the entry of a take nothing judgment

denying Lea’s claims. For these reasons, the judgment of the trial court should be

AFFIRMED.




                                         60
                        Respectfully submitted,
                        FLOWERS & FRANKFORT,
                            ATTORNEYS AT LAW

                        By: /s/ Todd Frankfort
                               TODD FRANKFORT
                               State Bar No. 00790711
                               RICHARD L. FLOWERS, JR.
                               State Bar Number 07180500
                               5020 Montrose Boulevard, Suite 700
                               Houston, Texas 77002
                               Telephone 713/654-1415
                               Facsimile 713/654-9898
                               Email rflowers@rflowerslaw.com
                               Service Email: Service@rflowerslaw.com

                              ATTORNEYS    FOR   SCOTT             SUTTON
                              MCLAURIN, APPELLEE



Appendices

Appendix 1 – Respondent’s Exhibit 32
Appendix 2 – Respondent’s Exhibit 37-A (as so designated herein)
Appendix 3 – Findings of Fact & Conclusions of Law




                                      61
                          TRAP 9.4(i)(3) Certification
      I certify that (i) the foregoing is a computer generated document, (ii) I am
relying upon the word count of the computer program used to prepare the
document, and (iii) that the document contains 11,827 words.

                                          /s/ Todd Frankfort
                                     Todd Frankfort




                                       62
                              Certificate Of Service

      I hereby certify that on this the 12th day of August, 2015, a true and correct
copy of the foregoing Appellee’s Brief was served in accordance with Rule 9.5 of
the Texas Rules of Appellate Procedure on the following party’s attorney of record
by e-service:




                                           /s/ Todd Frankfort
                                      Todd Frankfort




                                        63
                         LAW OFFICE OF RICHARD L. FLOWERS, JR.
·'
                                5020 Montrose, Suite 700
                                  Houston, Texas 77006
                                Telephone (713) 654-1415
                                 Facsimile (713) 654-9898

                                           June 21, 2011

     Mr. Daniel J. Lemkuil (Via Facsimile 713/225-0099)
     The Law Office of Daniel J. Lemkuil
     1314 Texas Avenue, Suite 1515
     Houston, Texas 77002

           FOR SETTLEMENT PURPOSES AND ADMISSBLE ONLY ON THE ISSUE OF
                                ATTORNEYS FEES

     Re:    No. 2009-06775; In the Matter of the Marriage of Lea Percy Mclaurin and Scott
            Sutton Mclaurin and In the Interest of Christopher Mclaurin, a Minor Child; In
            the 31ih Judicial District Court of Harris County, Texas

     Dear Mr. Lemkuil:

           I have called your office several times to discuss closing this case.   I have not
     heard back from you.

            This is another effort at resolving this matter and to m1mm1ze the time and
     unnecessary expenses accruing in concluding this matter. I am confident that if you'll
     call me back we can coordinate an agreeable date and time to exchange the following
     documents and other things necessary to end this.

            Outstanding issues as per your February 1, 2011 letter:

            1. Scott will exchange the diamond given to Lea by Patrick Brannan for his
               Rolex watch.

            2. Scott does not have any coins belonging to Lea or Christopher;

            3. Scott will execute a quitclaim deed for the Oklahoma property if you provide
               one;

            4. Scott doesn't have the First Colony life insurance policy number 5164362;

            5. Scott's financial advisor, Ross Mclaurin, had been working with Lea's
               financial advisor, Allen Weiner, to transfer Lea's share of the Lincoln account
               ending 0305. That effort apparently broke down when Lea refused to provide
               information for an account where she wants her share of the Lincoln account
                                      g;    EXHIBIT
                                      ~

                                      i fl-.~2
1\   ~   _   r'\ -   ·- • -   I    I   I   ___ I . .   . I
lVII. UdiiiC"I J .                     Lt;l I 11\ LIII

.J une 21, 2011
Page             I2
                                  assets transferred .  Ross is under the impression he had provided all
                                  documentation 1\tlr. \J\Jeiner requested . If you 'll provide the account
                                  information, Ross will transfer the assets . If you need additional
                                  documentation on this account let me know what you want and I'll do my best
                                  to provide it.

                     6. Scott has executed forms Bucky Allshouse sent for transferring the savings
                        bonds. Copies of those documents were sent to Mr. Allshouse . If you want
                        Scott to sign different forms, please provide the completed forms and we'll
                        exchange them for Scott's bonds that Lea has and similar transfer documents
                        signed by Lea .

                     7 . Scott does not have any keys to Lea's Lexus GX4 70;

                     8. Bonus/reimbursement        Documents reflecting · Scott's bonuses and
                        reimbursements were previously provided and additional copies are attached
                        for your convenience. Scott received no reimbursements during the period in
                        question.

                              On May 28, 2010 Scott received a bonus from GHA in the amount of
                              $12,648.31. I understand that on the date the divorce decree was entered
                              Lea received a $6,877.47 check, which is $553.32 more than half of the
                              bonus . She was reportedly upset that day about the amount of the check.
                              However, she accepted and negotiated the check.

                              Scott's now aware of the overpayment. Scott offers to allow Lea to let keep
                              the overpayment if that ends this matter. If that's not agreeable, Lea owes
                              Scott $553 .32 .

                     9. Scott doesn't have a document listing the contents of the safe deposit boxes
                        at BBVA Compass or Wells Fargo Bank as of September 3, 2010;

                     10. Scott has previously offered to make the Christmas ornaments, Gibson
                         plates, and stuffed animals available for Lea to pick up but she never
                         arranged to do so . Let us know when she wants to do that.

                     11 . We will also arrange to have the family photographs and videos delivered to a
                          commercial copying service for duplication . Let us know which service Lea
                          wants to use . Each party is responsible for half of the copying charges.

                     12. Finally, page 12 of the AID states the amount Scott received for his 2009 tax
                         refund : $31,943 .00 . Lea was provided with a copy of the U.S. Treasury
                         Department refund check. Lea received a check for $16,000.00 when the
                         decree was entered. The amount owed is a sum certain and Lea accepted
                         the check. It's outside the scope of discovery to request Scott's tax return.
IVIr. Oan1e1   J.   LemKUII

Page   I3
               However, in a further effort to settle this matter Scott offers to provide a copy
               of his tax return in exchange for a copy of Lea's. If she received a refund she
               never disclosed such to Scott. Again, he's willing to let that go it we can end
               this.

       I hope you'll view this as I do - a simple matter of coordinating the exchange of
property. Thank you for your assistance in wrapping this up. I look forward to hearing
from you soon.




LCB:dmh
Enclosure

cc:     ScottS. Mclaurin, M.D.
                      LAW OFFICE OF RICHARD L. FLOVVERS, JR.
                             5020 Montrose, Suite 700
                               Houston, Texas 77005
                             Telephone (713) 554-1415
                              Facsimile (713) 554-9898

                                           May 25, 2J 42

!v1r. Da:-tiel J. Lemkuii (Via Facsimile   r   3!225-0:J99)
The Law Office of Daniel J. Lemk~il
1314 Texas Avenue, Suite 1515
Houston, Texas 77002

      FOR SETTLEMENT PURPOSES AND ADMISSIBLE ONLY ON THE ISSUE OF
                           ATTORNEYS FEES

Re:    No . 2009-06775; In the Matter of the Marriage of Lea Percy Mclaurin and Scott
       Sutton Mclaurin and In the Interest of C~ristop~er Mclaurin, a Minor Child ; In
       the 3~ih Judicial District Court of Harris County, Texas

Dear Mr. Lemkuil:

       Here's another attempt at settlement.

       Outstandinq issues as per your Feb;uary 1. 2011 letter:

       1. Lea has returned Scott's Rolex watch .

       2 . We received the partial diar71o:-td appraisa ~ report you sent. The report
           describes a 2 carat stone. I've never seen the stone, but reportediy :t does
           not appear to be 2 carats . Scott thinks t.,e :epor. may describe the
           engagement ring he gave Lea. In .any event, S::;ot will take the stone a no the
           repor: you se:1t to the store Lea p~oposed - Rei :~ er's Fine Jewelry, 221 0
           Vvestheimer Houston, TX 77098. lf he has the stone des::;ribed in the report,
           I'll have the stone del:verec:i to your office. If not, we oug ht ~o have the stone
           in Lea's engagement ring co:npared to the report. Othervvise, if Sco:t does
           not have the stone descri::>ed in t1e report tell me how you want to handle.

       3.   Scott does not have any coins belonging to Lea or Christopher.

       4. Please e:!it the quitc!air.l deej for the Ok~ahoma p;-operty yo ~ previously
          p:-ovided to in~ l ude the fo 'iov\•ing language: "For the Co:~sideratio:~ , G rar:tor
          quit::;laims to Grantee ai: of G ~antor' s rig~t . :itle, anc ::1terest in anci :c t~e
          p:-operty, if a:-1y, to have a:1d to hold to Grantee and Gran:ee's heirs,
          successors, and assig;,s 7orever. Neither Grantor nor Grantor's heirs ,
          successors, or assigns will have, c aim, Oi :lema:ld any :-ight or titie to the
lk. Da1ie' ~. ~eiKw i!
May 25, 2: ~ 2
Pa~e . 2

             p-~oe::}' or a:1y par.     :>~   it". S..J:,je:: to hat change being 1ade, Sco:t wili s igl
             a o.1i~claim deed .

       5     Scott ooss~/t have t~e First Coiony iife i'lsu:-a:~:e p:>licy nurlbei 5 ~ 54352. rle
             does ·'lot :~ave t'le "::,:>ok" ~'OU Jesc-ibeo i :~ our ias: telephone· cal:.

       6     We've :Yc:>:r.Jced all tne statemen~s for the Li;,co!:: accou1t yo:.: reJJeste::: . is
             his iss:.Je reso ~ved? If so, the assets wil ' be t-a'lsfe:-red to a 1 a:c::>:.J'l: Lea
             des1~nates .      8:.J: to do that she wil 1ave to ;xovide us he acc::;,unt
             info'Tlati::w.. l7 there's still a problem, what is it?

       7. Lea delivered Scott's savi;,gs bonds. Encbsed are the f:Jiiy executed forms
          yo:J sent Do we have any remaining issues on the savings bo:~ds?

       8. Scott does ;,ot have any keys to Lea's Lexus GX470;

       9. Reimbursement - All reimbursements have been accou:1ted fo:. Scott
          received no reimbursements foliowing mediation. What reimb.Jrseme:~t issue
          remains?

       10. Bonus - Lea has :eceived her share of the bonus . All the bon:Js money
           received was accounted for and shared. If there's still an iss:Je aboJt bon us
           money, what is it?

       11. As furthe: discussed below, the    mo:Jt1~y draw that had been skipped bec3 use
             o~Scott's iow production followin~ his bike wreck but paid afte~ mediation has
             bee:-t disciosed. A cashier's check for ~ea's share was tendered at Steven
             Jahn's depost:ion. You ::leclineo :o accept it. Let :ne k:1ow if your clier.t wa1:s
             it

       'i 2. Scott doesr. ·: have a documer.t iis:ing t:Je contents of the safe deposi: boxes
             a: BBVA Compass o:- Wells Fargo Bank as of September 3, 2010;

       ~   3. Lea picked up t~e ChristMas o ~na m e .'l ts, Gibson plates, and stL.:~ed ani;na !s
              c:vai:able . is :here any reMaini ng issue here?

       ',4 . Let me know whicr. service Lea wa:1ts to use to             ~opy    :he fa:niiy   p~ob;; :-ap h s
             c:nci videos.

       ~   5. Lea has    ~ece ' ved   he:   s~a~e   of he 20)9 hco:-ne tax   re~..:nd.


       At:o-nev's Fees

       This case should have never bee l ~i 1 ed . Scott peio:-:-neo a:-td/or :e1oe;ed ft..t
perfo:mance foliowing e:;t-y of tne dec~ee. ~ ea re~used to perfo:-:7~ a::y par. of her
!vi~ .   :)anie: .J. Le'TlKJi'
!Jiay 25 , 20i 2
Page 13

ojiigat1o:s. S~e ::>enie: havi:-1;; Scott's Roiex unti i the j::y it was oel !vereQ She·s
de'lied havi:"lg the savings b:m:is t:-1a: a~~;\,e:::J wit" the wat:::~ . She's ::>ee ~ n ::>rea:::- alJ
can ha-d!y co -n;:> lair a:>ou: a breach ever if :here was o'le .

       if there was a ? ~oble:-n , Lea faile:J ~o send a w:-itte:-1 der11a:rd prior to fi lhg t:1is
b:-each of :::or.t:-act case a:-1d th:Js :::annot ~ecover a :m~;,ey · s fees . -:-e>~ Civ. ?ra:::. Rem.
Code §38 .::10 1, et seq. Yo:.; co:J id ~ave ever: calied me. instead Lea jus: filed t1ls
lawsuit.

        ~ ea told Scot (though the mediator) a: the final mediation that :1e was getting a
bonus . Lea has he ~ share of that bonus. T:-:rough investigating that claim I came to
iearn that i'l addition to a b:nus , Scott also :eceived a mo:-1th!y d;-aw whi:::h had beer.
withheld due to his lack of production following his November 25 , 20::19 cycling accide :~t.
I did not know prior to investigating that claim that the draw had even ~eer. withneld .

        As soar: as I sorted through w~at had happened, I re;:>orted it to you . No later
tha:l the day Steve~ Jahn was deposed the details of :h a~ were discl:::lsed and Lea's
s~are of the m:::>'ley te;,dered. That shoulc have bee~ the end of this.


        Despite that effort t1is iawsuit co:ltin:Jed . Another deposition was taken. We've
bee:-~ breed to prepare for final trial and eve1 attended a p:-etrlal confere:1ce . Sco:t's
fees prior to writing this letter exceed $35 ,0:>0

      Scott o~ght to try this case and iet J:Jdge Dean decde wh:::>'s in breach . Instead ,
once again he offers to resolve t~i s entire matter and move forward .

       If this case is settie::i immediately, Sco~t wili waive recovery of his attorney's fees
:Jpon receipt o7 p :oo ~ Lea has deposited $ ~ J ,OOCJ ir.to Ch~isto:>he :-'s 529 Plan.

        There's usual'y 'lO poi::t to deadlines on settle;.,ent proposals . So            :·t: say   only
that this offer can be wit1drawn a: any '.:ine. Le:'s end this.

                                                        Very   trJ~Y   yo;.rs,


                                                        Richard L. Fiowe:-s , J".

R.LF:dr:lh
C.ncios:J:-es

c::         S:;::>t: S.   fvi c L au ~i n *   rV. .D.
                                             CAUSE NO. 2009-06775


IN THE MATTER OF                                           §                 IN THE DISTRICT COURT OF
THE MARRIAGE OF                                            §
                                                           §
LEA PERCY MCLAURIN                                         §
AND                                                        §
SCOTT SUTTON MCLAURIN                                      §                    HARRIS COUNTY, TEXAS
                                                           §
                                                           §
AND IN THE INTEREST OF                                     §
CHRISTOPHER MCLAURIN,                                      §
A MINOR CHILD                                              §                    309rh JUDICIAL DISTRICT


         PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW


      Comt.:s Now Respondent/Countt.:r-Penciont.:t, Scott Sutton i\Ic.Launn ("Scort''                   or
"Respondent"), and subnuts the followmg Proposed Findmgs of Fact and Conclusions of Law.

                                                FINDINGS OF FACT

    1.    lf any statement   dus documenr listed as a finding of bet IS actually a conclusion of law,
                               10                                                                       It
         will be considered as   :~ conclusJOn of law     If anv statement in this document ll~reJ as    ::1
         concluston of law 1s actually a findmg of fact tt wtll com1dered a flndmg of fact.

    2. Scott was marned to Lea Perc~· :\IcLaunn (''Lea" or "PecitJOner"), and on September 3, 2fll 0,
       that marri::~ge was chssokcd by Final Decree <.)f DiYotce ("Decree"), which mcorporated an
       .r\grcemcnt Incident to Di,·nrce, wluch w::~s also ("Xecuted on September 3, 2010 (":\lD")

    3. In \larch, 2011, Lea filed a l\locion to Enforce Final Decree of D1,·orce and :\brrecment
       lnCJdent to Dn·orce (the "Enforcement"). Ill which ~he·
               • Sought ro enforce the pro,·islon of the Decree and ;\ ID, awarcLng Lea the
                   diamond gJ\"I:'n to -..vtfe by Parnck Brannan, \Vhtch was located in a safe depostt
                   box at Chase Bank, Medical Center locanon,
               • Sought to enforce the prm·ision of the Decree and :\10, a\vardll1g Lea the coms
                   belongmg ro Lt.:a or Chnstopher :--fcl.aurm, \\'htch \Vas located m a safe deposit
                   box at Chase Bank, .tvfed1eal Center location;
               • Sought to enforce the p10v1s1on of the Decree and.:\ ID, awardmg Lea certarn 1e:tl
                   property loc::~tcd 111 Pa~·nc County, Oklahoma;
               • Sought to enforce the provlSlon of the Decree and :\ID, aw:nd111g Lea the F1tst
                   Colony L.tfc Insurance Poltcy No. 5164362;
               • Sought 10 enforce the pronston of the Decree and AID, a\vardmg ] .ea a poruon
                   of the Lincoln I m-e:;tmenrs account endmg 111 0305,



 McLmnn   l"   i\1cLmn11- Propo:;ed Fmclmgs of Fact and Condu,1ons of La••




                                                                                                               34
                  •    Sought to enforce the prm·is10n of the Decree and A lD, awarding Lea cerram
                       United Stales S:n·ings Bonds, 111 Scort 's possession;
                  •    Sought to enforce the prO\·ision of the Decree and AID, awardwg Lea a ~006
                       Lcxus GX4 70,
                  •    Sought to enforce the provision of the Decree and AID, awardmg Lea "fifty
                       percent (50'%) net of taxes of ANY bonuses or reunbursemcnts rccervcd br
                       Hu~band through i\plil30, 2010";
                  •    Sought to enforce the provision of rhc Decree and AID, awardmg Lea the
                       contents of the safe deposit boxes at BBV i\ Compass and \X' dis Fargo Bank,
                  •    Sought to enforce the prm·ision of the Decree and A 10, awardmg Lea \·arious
                       Chnstrnas ornaments, Gibson plate~, stuffed animals, and f:uruly photographs and
                       vtdeos (collectively, the "Personal Property");
                  •    Brought a cause of action for conversiOn against Scott; and
                  •    Sought recm-ery oi her attorney's fee~.

    4. On November 9. 2012, Lea se.rYed on Scott\ counsel of record a rust I\ mended 1\.fotion to
       Enforce Fmal Decree of D1n>rce and :\greement Inctdem to OiYorce (the "1 '' :\mended
       Enforcement"), in wluch she restated the :tllegation~ conramed tn the Enforcement

    5. On r>.hrch 6, 2013, Lea sen·ed upon Scott's counsel her Second Amended Mouon ro Enforce
       Final Decree of Di\·orce and ;\grcement lnctdem to Dt\·orce ("2 ·" :\mended Enforcement"),
       tn whtch she abandoned all pr10r allegatwns, l=<".XCEPT for tho~e in whtch she.
               • Sought to enf01cc the prO\·ision of the Decree and :\10, awardmg Lea Lhe
                  diamond g1ven ro wife by Patrick Brannan, wluch \\·as located 111 a :;;afc depos1r
                   box at Chase Bank, i\fcdtcal Center locanon;
               • Sought to enforce the prO\·isinn of the Decree and :\ID. awarding Lea certam
                   lfmted States Sannb~ Bonds, 111 Scott's pos~ession;
               • Sought to enforce the prO\'ISion of the Decree anJ AID, awarding Lea "fifl~·
                   percent (Sll~'o) net of taxes of ANY bonuses or retmburscmenr:, tcccrnd b\·
                   Husband through Apnl 30, 20 I 0":
               • Brought a cause of acnon for conYerston agamst Scott; and
               • Sought reCl1\'ery of her attorney's fees

   6.   On i\farcb 1 H, 2013, l.xa serYed upon Scott's counsel her Thud :\mended ,\lotion to Enforce
        Fmal Decree of Di,·orce and Agreement lnctdenr to Ot\·orce ("3rd Amended Enforcemcm"),
        111 which she restaled those alkganons cont:uned 111 the 2"J :\mended Enforcement.


    7    On \larch 27, 2013, Lea ~etYed upon Scort's counsel he1 Fourth _\mended i\1otJOn to
         Enforce Ftnal Decree of Di\·orce and Agreement lncident to Dn·orce ("4'" .\mended
         Enforcement"), in which she abandoned all pnor allegauons, EXCEPT for those m which
         she:
                • Sought to enforce the pro\·tston of rhe Deetee and :\ ID, awardmg Lea the.:
                   diamond gn·en to wife by Patnck Brannan. wlllch was located 111 a safe depostt
                   box at Chase Bank, \·kdical Center locauon,
                • Sought to enforce the proYtston of the Decree and ...-\JD, awardtng l.<:a "fifty
                   percent (SO~'o) net of taxes of ;\~Y bemuse:> or reimbursements received by



,\fcLmn11 t' }/.J.....;;,m'n- Proposed FHlthngs of F:tct and Conclus10n:: <)fLaw             Pc~ge   2 of S




                                                                                                              35
                        Husband through April 30, ~01 0"; and
                   •    Brought a cause of action for cotwer~lon a!:,ratnst Scott.

    8.   fn response to Lea's claims in the Enfotcemenr, the :\mended Enforcemenr, rhe 2"'1
                                   1
         _-\mended Enforcement. 3" .-\mended Enforcement and 4' 11 Amended Enforcement on !vb\·
         13, 20B, Scott filed a Second .Amended \lon~n f01 Sanctions for Bad hu:h rthng
         ("Sancnons Motion"), seeking recovery of Ius attorney's fees, courr costs, and linganon
         expenses, JOmtly and seYcrally from Lea and from Lea'~ counsd of record, Daniel Lcmkutl
         ("Lemkwl").

    9. All issues were heard and ruled upon by the Coun

    I0. On 7\farch 3, 2014, the Court 1ssued Its rcndnwn in this matter iJy wnrten letter addressed to
         both attorneys of record for the parties

    Savil(g.r Bondi

    11 Lea's pnor counsel prepared and forwarded to Scort's counsel an Asstgment of Interest,
         transfernng certain Umted Stares Savmgs Bonds to Lea, and on or about September 8, 2010,
         Scott exccut<:d such .Asstgnment of Inrere~t, and returned It to Lea's counsel.

    12. On or about October 28, 20 I U, Scott, by and through Ius counsel of recotd, pronded a
        "corrected" Assignment of Interest transfernng such Umtcd States Sa,·ings Bonds to Lea.
        wluch he had executed, to Lea's counsel of record, for Lea's cxecutwn, and Lea refused to
        execute such ;\sstgnmcnt of I nrere~t.

    13. On or about i\farch 8, 2013, while the ltugation \\·as pending, LemkuJ.l pronded a new form
         of an assi,gnment of interest in !iuch Unttcd States Sa\·ings Bond:;. Scott executed the new
         asstgnmenr of mterest prior to ttlal

    Diamond & CoJ/1.1

    14. Pnor to the imnarion of th1s lawsutt, Scott auempted to exchange rhc d1amond and coins (if
        any) wluch had been located in lhe safe deposn box at Chase Bank, .).·fed.tcal Center locauun
        u1 Scort's name for the Rolcx watch, wh1ch was awarded to him pursuam to the Decree and
        AID; howc,·er, Lea refused to cooperate in c~:changmg such ttem!i.

    15. On or around November 7, 2012, Scott tendered to Lea, b) ddin·rv lO her atwmcy, the
        illamond referenced in Lea's plead1ngs.

    Pe1:ronal Pmprrry

    16. Pnor to the llltnation of rh1s l:nvsuit, Scort packaged the Chnst nus mnaments. the Gibson
        plates, and the stuffed ammals, and made them available to Lea

    17. Lea made no attempt to rake posscsston of the Chnstmas ornaments, the Gibson plates, or
        the stuffed ammals after Scott made them available.




:Hd....:nmn v. :\J,LJUr:n- Proposed Fmillngs of F,1.:t and   Conc!ustoi~:i   oi Law         Page 3 of 5




                                                                                                          36
    17. Lea made no attempt 10 take pos:,cssion of rhc Christmas ornaments, the Gibson plates, or
        rhe stuffed arumals after Scott made them aY:ulable.

    18. _-\fter the i.tuuauon of thi::: lawsuit, Lea retrieved some of the Personal Property from Scott's
        counsel's ofl:ice.

    19. The AID stares that Scott shall make rhe family photographs and \·ideos m·auable to Lea so
        that she may duplic:!te them; howe\·cr as of her filmg of this lmgation, Lee had not requested
        the phorographs or vrdeos for duplicatron

    Boll/IS   rlmds

    20. Pnor to m1Uatmg rhis hugation for performance of rhc.: contt::tct for performance of rhe
        contract or payment of any alleged momcs due and owmg, neither Lea nor her attorney of
        record may demand upon Scott, upon h1s attorney of record, or upon anv other duly
        authorized agent for performance or payment.

    21. Pnor to entry of the Decree, Scott paid all sums owed to Lea a~ a result of the provis10n of
        the Decree and _-\ID awarding Lea "fifty percent (50%) net of taxes of :\NY bonuses or
        reimbursements recei\Tcd by Husband thtough _r\pru 30, 201 0."

    Oklaboma Proper()'

    22. Pnor to miuanng this iltigauon for performance of the contract as 1t relates to rhc re:~l
        property in Payne Count:.', Oklahoma, Lea did not present any conveyance document to Scott
        for execution.

    23 On or about ~lay 3, 2012, Lemkml forwarded to :.'->cott's counsel :1 Qwtcl:um Deed,
       tramfcrring the real property located 10 Pain County, Oklahoma, and asked that Scott execute
       such Qwtclaim Deed.

    24. Scott executed the Qwtcl:um Deed, and returned It ro Lcmkuu.

    U11rol11 lm.'fslmmiJ Aal. j\1o. 0305

    ~5.   Prior to Lea 1111Uaung this lrugauon, Scou made numerous ,utcmph ro transfer Lea's port10n
          of Lmco\n Investments account no. 0305 (the "Lincoln ,\ccount") to her.

    26. Lee continually refused to supply- Scott, h1s fi.n:mCJal aJ,·i:::or, or her own finane1al adnsor
        \\·ith the mform:ltlon tcquired to enable Scclft to transfer her pornon of the Lmcoln :\ccount
        to her

    27. In Nm·ember, 2011, after the unnecessary expcndnure of attorney's fees, Lea proY1c.led the
        requtred mformanon to enable the transfer of her pottlon of the Lincoln Account. and the
        transfer was completed




.\-f.!.Am'!lll'..H.-i..Liunn- Propo;ed Fmding> of Fact :1:1d Conclusion:; ot L:m               Page 4 oi 5




                                                                                                             37
       Lf4 by~~)'(}u~~ her a.\Wr ne y '1A..tcPzr1
   28. "Jififiiiliijf f:nled to make rea::.onablc mguiry into the facts smroundmg the alleganons con tamed
       ill rhe Enforcement. the "\mended Enforcement, the 2"J :\mended Enforcement, the 3'J
       .\mended Enforcement, or the 4'h ;\mended Enforcement, prior to fihng each such pleading.                                CJ
                                   leA's ~(.ote.nt'/fttrouj-4 ~rr~eyo+r~Q)rz;(              . Jqjj)/
   29 ..After the facts    surroundtngU~ failure to make reasonable inquiry were brought to~~

@       attennon 111 a meeting with Scotr's attorney of res;ord, 1-w co.ntmued to~
      ~fur~ue.u-h"'"iA...L~&t'~ Leq~ ··-
                                           CONCLUSIONS OF LAW
                                                                                  ·~..~~
                                                                                                                        C()ll



   1. The Court has JUrischction of all parues and the subJeCt matter of this sun.

   2. The amended plcadmgs of the parties upon whiCh 1he case was tned are m due form and
      contained aU the allcgauons and information reglllred by law

   3. Lea proceeded to mal wnh the 4'" Amended Enforcement as her ''live" plc:~dmg.

   4. The attorney fees incmred by Lea in th1s matrer were both reasonable and necessary.

   5. The atwmey fees incurred by Scotr in this matter were both reasonable and necessar).

   6. The Court, h:n·i.ng considered the aboYe Fmdings of Fact, demcd the relief sought               111   the 4'h
      Amended Enforcemcnr.

   7. The Court, hanng constdered the abon: Findings of Fact, granted the rellef sought                     111   rhe
      Sanctions 1\-louon, and granted attorney's fcc~ in the amounr of SS2.378.88 agamst Lea

    8. On J\prll 8, 2014, the Court entered a "Fmal Judr:,rrnent on Lea Percy \IcL:lllnn's \lotion to
       Enforce and Scott Sutton 1\-lcL:wnn's l\·lcmon for Sancuons d Bad Farrtl -·


         1/ltJ/XJ;?


                                                                                     RECORDER'S MEMORANDUM
                                                                                     This lnslrumant Is r:A poor quallly
                                                                                           at the lime of inaging




:\f,Lmmn v Md..-aunn-   Propo~ed   f-md:ngs oi Fact and CvndusJOns of 1.:1\\                         Page 5 of j




                                                                                                                    38
