                                                                             ACCEPTED
                                                                        14-14-00208-CV
                                                          FOURTEENTH COURT OF APPEALS
                                                                      HOUSTON, TEXAS
                                                                   2/9/2015 11:27:09 AM
                                                                    CHRISTOPHER PRINE
                                                                                 CLERK

                       No. 14-14-00208-CV
                             IN THE
                                                       FILED IN
                                                14th COURT OF APPEALS
              FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS
                       at Houston, Texas        2/9/2015 11:27:09 AM
                                                CHRISTOPHER A. PRINE
             ––––––––––––––––––––––––––––––––––––        Clerk

                  LETICIA B. LOYA, Appellant
                                v.
                MIGUEL ANGEL LOYA, Appellee
             ––––––––––––––––––––––––––––––––––––
             Appealed from Cause No. 2012-32502 in the
           257th Family District Court of Harris County, Texas
________________________________________________________________
                 APPELLEE’S SUR-REPLY BRIEF
________________________________________________________________

                                     Randall B. Wilhite
                                     State Bar No. 21476400
                                     Grady Reiff
                                     State Bar No. 24074941
                                     FULLENWEIDER WILHITE, P.C.
                                     4265 San Felipe, Ste. 1400
                                     Houston, Texas 77027
                                     713.624.4100
                                     713.624.4141 Facsimile
                                     ATTORNEYS FOR APPELLEE,
                                     MIGUEL ANGEL LOYA



                ORAL ARGUMENT REQUESTED
                                          TABLE OF CONTENTS
                                                                                                                  Page
TABLE OF CONTENTS ........................................................................................ ii

INDEX OF AUTHORITIES.................................................................................. iii

SUR-REPLY TO APPELLANT’S CONTENTION REGARDING Sprague
  v. Sprague, 363 S.W.3d 788 (Tex. App.—Houston [14th Dist.] 2012,
  pet. denied)......................................................................................................... 1

PRAYER ................................................................................................................. 5

CERTIFICATE OF COMPLIANCE ...................................................................... 6

CERTIFICATE OF SERVICE ............................................................................... 6




                                                             ii
                                       INDEX OF AUTHORITIES

                                                           Cases

                                                                                                                         Page
Arnold v. Leonard, 114 Tex. 535, 273 S.W. 799 (1925) ........................................... 3

Butler v. Butler, 975 S.W.2d 765 (Tex. App.—Corpus Christi 1998,
   no pet.) ..................................................................................................................4

Cearley v. Cearley, 544 S.W.2d 661 (Tex. 1976) ..................................................... 3

Frommer v. Frommer, 981 S.W.2d 811 (Tex. App.—Houston [1st
   Dist.] 1998, pet. dism’d) .......................................................................................5

Gordon v. Gordon, No. 14-10-01031-CV (Tex. App.—Houston [14th
  Dist.] Nov. 29, 2011, no pet.) (memo op.) ........................................................... 5

Loiaza v. Loiaza, 130 S.W.3d 894 (Tex. App.—Fort Worth 2004, no
   pet.) .......................................................................................................................4

Murff v. Murff, 615 S.W.2d 696 (Tex. 1981)............................................................. 5

Roach v. Roach, 672 S.W.2d 524 (Tex. App.—Amarillo 1984, no
  writ) .......................................................................................................................3

Simpson v. Simpson, 727 S.W.2d 662 (Tex. App.—Dallas 1987, no
   writ) .......................................................................................................................5

Smith v. Smith, 836 S.W.2d 688 (Tex. App.—Houston [1st Dist.]
  1992, no writ) ........................................................................................................4

Sprague v. Sprague, 363 S.W.3d 788 (Tex. App.—Houston [14th
   Dist.] 2012, pet. denied)................................................................................ 1-2, 4

                                                      Constitution

Tex. Const. art. XVI, §15 ...........................................................................................3

                                                              iii
                                                        Statutes

Tex. Fam. Code §3.001 ..............................................................................................3

Tex. Fam. Code §3.002 ..........................................................................................3, 4



                                                   Other Sources

Black’s Law Dictionary (9th ed. 2009) ..................................................................... 2

Merriam-Webster.com, 2015, http://www.merriam-webster.com
(7 Feb. 2015) ..............................................................................................................3




                                                             iv
   SUR-REPLY TO APPELLANT’S CONTENTIONS REGARDING
Sprague v. Sprague, 363 S.W.3d 788 (Tex. App.—Houston [14th Dist.] 2012,
                              pet. denied).

      Leticia’s claim in her Reply Brief that Sprague v. Sprague, 363 S.W.3d 788,

801 (Tex. App. – Houston [14th Dist.] 2012, pet. denied), is “incompatible with

Miguel’s contract right theory” is completely misplaced. (Reply Brief, p. 10). On

the contrary, the Sprague case fully supports Miguel’s legal theories set forth in

issues one and two of his Appellee’s Brief (Amended). The relevant time line in

Sprague is as follows:

      1.     February 21, 1985 (before the Spragues got married):              Mr.

Sprague’s employer sent him a letter offering him “the option to defer payment of

additional compensation if any should be awarded that year in connection with [the

employer’s] planned merger.” Id. at 801. Mr. Sprague exercised this option and

“elected to defer” this additional compensation. Id. at 801-802.

      2.     July 6, 1985: Robert and Deborah Sprague were married. Id. at 791.

      3.     August 20, 1985 (during the Sprague’s marriage): In accordance

with Mr. Sprague’s election to defer the bonus payment(s), Mr. Sprague’s CEO

sent him a letter “notifying [him] that he . . . had been awarded bonus

compensation.” Id. at 801. This letter further stated, “This bonus will express our

thanks to you in a tangible way for your contribution to the Company especially

during the uncertainties of the past 18 months.” Id. at 801-802. Mr. Sprague’s

                                    Page 1 of 6
employer further stated that “the bonus with which [he] was credited in August

1985 was intended to compensate him for work done in the preceding eighteen

months”, of which sixteen and a half predated his marriage. Id. at 802.

      4.     August 21, 1985: Mr. Sprague received one-half of his deferred

bonus. Id.

      5.     January 1986, 1987: Mr. Sprague twice received an additional one-

quarter of his deferred bonus. Id.

      In light of the pre-marital bonus granted to Mr. Sprague, and which he

elected to defer, this Court held that, based on these facts, a reasonable jury could

have found that a portion of Mr. Sprague’s deferred bonus was his separate

property and, therefore, remanded the case to the trial court for such a

determination. Id.

      Both the Texas Constitution and the Texas Family Code provide that a

person has a separate-property interest in all property that the person “owned or

claimed” before the marriage1 or acquired during the marriage by gift, devise or




      1
         Black’s Law Dictionary defines “claim” as, inter alia, “[a]n interest or
remedy recognized at law; the means by which a person can obtain a privilege,
possession, or enjoyment of a right or thing.” Black’s Law Dictionary (9th ed.
2009).

                                     Page 2 of 6
descent.2 Tex. Const. art. XVI, §15; Tex. Fam. Code §3.001. By statute (and by

implied exclusion (see Arnold v. Leonard, 114 Tex. 535, 273 S.W. 799 (1925)),

community property consists of all property, other than separate property, acquired

by either spouse during marriage. Tex. Fam. Code §3.002.

      Mr. Sprague’s exercise of his option to defer the payment of his bonus for

work done prior to the marriage into subsequent years gave him his legal claim to

the bonus, which he brought into the marriage. 3 Sprague, like the litany of other

cases Miguel cites in his Appellee’s Brief, is, therefore, completely compatible

with Miguel’s “property right theory,” which has, as its underlying premise, the

principle that a court may only deal with property interests and not expectancies.

To have a community property component, there must be some recognized

property right that was acquired during the marriage (see, e.g., Cearley v. Cearley,

544 S.W.2d 661, 662 (Tex. 1976); see also Tex. Fam. Code §3.002)) and, in order

for a property interest to have a separate property component, there must be some


      2
          Merriam-Webster’s Dictionary defines “acquire” as “to come into
possession or control of often by unspecified means.” Merriam-Webster.com (7
Feb. 2015).
      3
         See, e.g., Roach v. Roach, 672 S.W.2d 524 (Tex. App.—Amarillo 1984,
no writ) (unmarried man entered into an option agreement pertaining to land, but
the deed was placed into escrow and delivered after marriage; inception of title
occurred at time of original option agreement, not when the deed was removed
from escrow and delivered to husband, making the land his separate property).

                                    Page 3 of 6
recognized property right that had its “inception of title” at a time other than during

the marriage (see, e.g., Sprague, id. and Butler v. Butler, 975 S.W.2d 765, 768

(Tex. App.—Corpus Christi 1998, no pet.) (husband’s post-divorce earnings from

psychiatric practice could not be characterized as community property)).

      On the way out of his marriage, Miguel had not acquired any claim of right

to his bonus, and, therefore, he had no property right to be divided, which Tex.

Fam. Code §3.002 expressly requires. A divorce court cannot divide something

that is not a property right acquired during marriage. Id.; Loiaza v. Loiaza, 130

S.W.3d 894 (Tex. App.—Fort Worth 2004, no pet.) (“A spouse is only entitled to

a division of property that the community owns at the time of the divorce”

(emphasis added) (citing Smith v. Smith, 836 S.W.2d 688, 692 (Tex. App.—

Houston [1st Dist.] 1992, no writ)).

      In summary, on the way into his marriage, Mr. Sprague had a claim of right

to his bonus that he “elected to defer.” Bringing this Constitutionally supported

claim into the marriage provided Mr. Sprague with a separate property right: the

bonus plan was in place, and an option for payment had been offered and accepted.

Because Miguel did not acquire any property right to the 2011 Possible Bonus until

it was declared and granted by his employer well after the parties were divorced,




                                       Page 4 of 6
no community property component ever existed in such bonus as a matter of law.4

If Miguel had carried with him (post-divorce) any legal right to the bonus (like

what happens with retirement plans, stock option plans and other such legal

entitlements that are ratably earned over time and paid into the future according to

contractual promises and compensation agreements), Sprague would stand for the

position that such “right” would have, at least in part, accrued during the marriage,

and would be subject to division upon divorce. Miguel had no such right in the

2011 Possible Bonus.

                                      PRAYER

      The summary judgment should be affirmed. Appellee respectfully requests

this Court grant all other relief to which he may be entitled.




      4
         That is not to say, however, that a trial court may not take the potential for
a bonus to be paid into the future as a factor it could use in making a division of the
estate of the parties. See Murff v. Murff, 615 S.W.2d 696, 99 (Tex. 1981); Frommer
v. Frommer, 981 S.W.2d 811, 814 (Tex. App.—Houston [1st Dist.] 1998, pet.
dism’d); Simpson v. Simpson, 727 S.W.2d 662, 664 (Tex. App.—Dallas 1987, no
writ); see also, e.g., Gordon v. Gordon, No. 14-10-01031-CV (Tex. App.—
Houston [14th Dist.] Nov. 29, 2011, no pet.) (memo op.) (court considered
disparity in income between parties and fact that wife had been out of workforce
for 20 years).

                                     Page 5 of 6
                                         Respectfully Submitted,

                                         FULLENWEIDER WILHITE, P.C.
                                         4265 San Felipe, Ste. 1400
                                         Houston, Texas 77027
                                         713.624.4100
                                         713.624.4141 Facsimile

                                         By: /s/ Randall B. Wilhite____________
                                             Randall B. Wilhite
                                             State Bar No. 21476400
                                             Grady Reiff
                                             State Bar No. 24074941
                                             ATTORNEYS FOR APPELLEE,
                                             MIGUEL ANGEL LOYA

                     CERTIFICATE OF COMPLIANCE
       Under Tex. R. App. P. 9.4(i)(3) as amended effective December 1, 2012, I
certify there are 1,167 words within this document exclusive of those contained in
the cover page, table of contents, index of authorities, signatures, certificate of
compliance, and certificate of service, as tabulated by the computer program used
with preparing this document.
                                         By: /s/ Randall B. Wilhite____________
                                           Randall B. Wilhite
                         CERTIFICATE OF SERVICE
      I certify a true copy of the foregoing Appellee’s Sur-Reply Brief was served
on each party’s lead counsel under the Texas Rules of Appellate Procedure as
follows:

      Date of service: February 9, 2015
      Method of service: Via efile service
      Lead Attorney: Richard R. Orsinger
      Party: Leticia B. Loya
                                         By: /s/ Randall B. Wilhite____________
                                           Randall B. Wilhite



                                   Page 6 of 6
