                                                                                           ACCEPTED
                                                                                      01-14-00710-cv
                                                                            FIRST COURT OF APPEALS
                                                                                    HOUSTON, TEXAS
                                                                                  2/2/2015 8:58:23 PM
                                                                                 CHRISTOPHER PRINE
                                                                                               CLERK

                           NO. 01-14-00710-CV

                                                                      FILED IN
                                                               1st COURT OF APPEALS
                 IN THE COURT OF APPEALS                           HOUSTON, TEXAS
   FOR THE FIRST JUDICIAL DISTRICT OF TEXAS                   AT   HOUSTON
                                                               2/2/2015 8:58:23 PM
                                                               CHRISTOPHER A. PRINE
                                                                       Clerk

                        LEA PERCY MCLAURIN,
                              APPELLANT

                                      v.

                     SCOTT SUTTON MCLAURIN,
                             APPELLEE

               On appeal from the 309th Judicial District Court
                Harris County, Texas | Cause No. 2009-06775


                          APPELLANT’S BRIEF



                                           Respectfully submitted,

LAW OFFICE OF DANIEL J. LEMKUIL            LAW OFFICE OF JANICE L. BERG
Daniel J. Lemkuil                          Janice L. Berg
State Bar No. 00789448                     State Bar No. 24064888
1314 Texas Avenue, Suite 1515              1314 Texas Avenue, Suite 1515
Houston, Texas 77002                       Houston, Texas 77002
Telephone: 713-993-9100                    Telephone: 713-993-9100
Facsimile: 713-225-0099                    Facsimile: 713-225-0099
daniel_lemkuil@flash.net                   janice@janiceberglaw.com



                    ATTORNEYS FOR APPELLANT

                   ORAL ARGUMENT REQUESTED
                  IDENTITY OF PARTIES AND COUNSEL

Appellant/Movant
LEA PERCY McLAURIN (former wife)

Representing Appellee at Trial:
Daniel J. Lemkuil
State Bar No. 00789448
1314 Texas Avenue, Suite 1515
Houston, Texas 77002
Telephone: (713) 993-9100
Facsimile: (713) 225-0099
daniel_lemkuil@flash.net

Representing Appellant on Appeal:
Daniel J. Lemkuil                            Janice L. Berg
State Bar No. 00789448                       State Bar No. 24064888
1314 Texas Avenue, Suite 1515                1314 Texas Avenue, Suite 1515
Houston, Texas 77002                         Houston, Texas 77002
Telephone: (713) 993-9100                    Telephone: (713) 993-9100
Facsimile: (713) 225-0099                    Facsimile: (713) 225-0099
daniel_lemkuil@flash.net                     janice@janiceberglaw.com

Respondent
HON. SHERI Y. DEAN
Judge of 309th Judicial District Court of Harris County, Texas

Appellee/Respondent
SCOTT SUTTON McCLAURIN (former husband)

Representing Appellant at Trial:
Richard L. Flowers, Jr.
State Bar No. 07180500
5020 Montrose Boulevard, Suite 700
Houston, Texas 77007
Telephone: (713) 654-1415
Facsimile: (713) 654-9898
service@rflowerslaw.com
                                        ii
Representing Appellee on Appeal:
Todd M. Frankfort
State Bar No. 00790711
5020 Montrose Boulevard, Suite 700
Houston, Texas 77007
Telephone: (713) 654-1415
Facsimile: (713) 654-9898
todd@rflowerslaw.com




                                     iii
                                           TABLE OF CONTENTS

Identity of Parties and Counsel ................................................................................. ii	  

Table of Contents ..................................................................................................... iv	  

Index of Authorities ................................................................................................ vii	  

Statement of the Case................................................................................................ x	  

Statement Regarding Oral Argument........................................................................ x	  

Appellee’s Issues Presented ..................................................................................... xi	  

   Issue 1:	   The trial court erred in granting sanctions as the case was
                 neither frivolous nor brought in bad faith. The pre-trial
                 investigation made was adequate. The entry of the findings
                 and resulting order are contrary to the evidence and are, thus,
                 an abuse of discretion. ........................................................................ xi	  

   Issue 2:	   The imposition of a date and time certain for the payment of
                 the sanctions award was an abuse of discretion, as the court
                 has no authority or jurisdiction to compel a party to pay a
                 debt. .................................................................................................... xi	  

   Issue 3:	   The trial court erred in denying Lea’s requested relief. The
                 take-nothing judgment rendered by the trial court was
                 contrary to the great weight and preponderance of the
                 evidence and was, therefore, an abuse of discretion. ......................... xi	  

Statement of Facts ..................................................................................................... 1	  

           A.	   First Enforcement .................................................................................. 1	  

           B.	   Second Enforcement .............................................................................. 1	  

           C.	   Lea amends her Enforcement Motion prior to trial ............................... 2	  

           D.	   Remaining issues at trial ........................................................................ 3	  


                                                              iv
           E.	   Judge denies Lea’s requested relief and sanctions her more than
                    $50,000 in attorney’s fees .................................................................. 3	  

           F.	   Judge incarcerates Lea for failure to pay the sanctions by a date
                    certain................................................................................................. 4	  

Summary of the Argument........................................................................................ 4	  

Argument and Authorities......................................................................................... 5	  

       I.	   The trial court erred in granting sanctions against Lea. The suit was
               neither frivolous nor brought in bad faith. The pre-trial
               investigation made was adequate. The entry of findings of fact and
               the order are contrary to the evidence and are, thus, an abuse of
               discretion (ISSUE 1) ................................................................................ 5	  

           A.	   Rule 13 Sanctions .................................................................................. 5	  

           B.	   Section 10.004 Sanctions ....................................................................... 7	  

           C.	   Challenges to separately filed Findings of Fact (CR 34) ....................... 9	  

           D.	   Challenges to Sanctions Order ............................................................ 22	  

       II.	   Trial court abused its discretion by including a due date for the
                judgment to be paid (ISSUE 2) .............................................................. 28	  

       III.	   The trial court abused its discretion by denying Lea’s requested
                relief. The great weight and preponderance of the evidence
                supported enforcement of the property division on the issue of
                bonuses and the diamond (ISSUE 3). ................................................... 29	  

           A.	   Bonuses/Reimbursements .................................................................... 29	  

           B.	   Brannon Diamond ................................................................................ 30	  

Prayer ...................................................................................................................... 30	  

Certificate of Word Count Compliance .................................................................. 32	  

                                                                v
Certificate of Service .............................................................................................. 32	  




                                                            vi
                                        INDEX OF AUTHORITIES

Cases	  

American Flood Research, Inc. v. Jones, 192 S.W.3d 581 (Tex. 2006) ............... 8, 9

Attorney General of Texas v. Cartwright, 874 S.W.2d 210 (Tex. App.—Houston

   [14th Dist.] 1994, writ denied) .............................................................................. 7

Ball v. Rao, 48 S.W.3d 332 (Tex. App.—Forth Worth 2001, pet. denied) .............. 7

Busby v. Dow Chem. Co., 931 S.W.2d 18 (Tex. App.—Houston [1st Dist.] 1996,

   no writ) .................................................................................................................. 6

Campos v. Ysleta Gen. Hosp. Inc. 879 S.W.2d 67 (Tex. App—El Paso 1994, writ

   denied)................................................................................................................... 6

Downer v. Aquamarine Operators, Inc. 701 S.W.2d 238 (Tex. 1985) ................... 20

Elkins v. Stotts-Brown, 103 S.W.3d 664 (Tex. App.—Dallas 2003, no pet.) ........... 6

Falk & Mayfield L.L.P. v. Molzan, 974 S.W.2d 821 (Tex. App.—Houston [14th

   Dist.] 1998, pet. denied) ........................................................................................ 6

Highland Church of Christ v. Powell, 640 S.W.2d 235 (Tex. 1982)...................... 28

Home Owners Funding Corp. of Am. v. Scheppler, 815 S.W.2d 884 (Tex. App.—

   Corpus Christi 1991, no writ.) ............................................................................ 20

In re Y.B., 300 S.W.3d 1 (Tex. App.—San Antonio 2009, pet. denied) ................... 7

Jenkins v. Henry C. Beck Company, 449 S.W.2d 454 (Tex. 1969) ........................ 29

                                                             vii
Jimenez v. Transwestern Prop. Co., 999 S.W.2d 125 (Tex. App.—Houston [14th

   Dist.] 1999, no pet.) ............................................................................................ 22

Laub v. Pesikoff, 979 S.W.2d 686 (Tex. App.—Houston [1st Dist.] 1998, pet.

   denied)................................................................................................................. 20

Monroe v. Grider, 884 S.W.2d 811 (Tex. App.—Dallas 1994, writ denied) ........... 6

Ochsner v. Ochsner, No. 14-11-00395-CV; 2012 WL 1854743 (Tex. App. [14th

   Dist.] May 22, 2012, no pet.) ................................................................................ 8

Paradigm Oil, Inc. v. Retamco Oper., Inc., 372 S.W.3d 177 (Tex. 2012) ............... 8

Rudisell v. Paguette, 89 S.W.3d 233 (Tex. App.—Corpus Christi 2002, no pet.) . 21

Tarrant County v. Chancey, 942 S.W.2d 151 (Tex. App.—Fort Worth 1997, no

   pet.) ....................................................................................................................... 6

Thelemann v. Kethan, 371 S.W.3d 286 (Tex. App.—Houston [1st Dist.] 2012, pet.

   denied)................................................................................................................. 20

Thompson v. Davis, 901 S.W.2d 939 (Tex. 1995) .................................................. 27

University of Texas v. Bishop, 997 S.W.2d 350 (Tex. App.—Fort Worth 1999, pet.

   denied)................................................................................................................. 21

Statutes	  

Tex. Civ. Prac. & Rem. Code § 10.001 .................................................................... 7

Tex. Civ. Prac. & Rem. Code § 10.004 .................................................................... 7

                                                              viii
Rules	  

Tex. R. Civ. P. 13 ...................................................................................... 5, 6, 21, 22




                                                         ix
                         STATEMENT OF THE CASE

Nature of the case:   Former wife moved to enforce the property division
                      contained in a Final Decree of Divorce. Former husband
                      answered and sought sanctions against former wife for
                      frivolous filing.

Course of             A multi-day bench trial was held on the enforcement motion.
proceedings:

Trial court           The trial court rendered judgment denying all of former
disposition           wife’s requested relief and granted as sanctions a judgment
                      against former wife for more than $50,000 in attorney’s fees.


               STATEMENT REGARDING ORAL ARGUMENT

      Appellant, Lea Percy McLaurin, respectfully requests the opportunity to

present oral argument. Oral argument would significantly aid the Court in deciding

this case by providing additional explanation of the facts and issues presented. See

Tex. R. App. P. 38.1(e), 39.1(d).




                                         x
                   APPELLEE’S ISSUES PRESENTED


Issue 1:   The trial court erred in granting sanctions as the case was neither
           frivolous nor brought in bad faith. The pre-trial investigation
           made was adequate. The entry of the findings and resulting order
           are contrary to the evidence and are, thus, an abuse of discretion.


Issue 2:   The imposition of a date and time certain for the payment of the
           sanctions award was an abuse of discretion, as the court has no
           authority or jurisdiction to compel a party to pay a debt.


Issue 3:   The trial court erred in denying Lea’s requested relief. The take-
           nothing judgment rendered by the trial court was contrary to the
           great weight and preponderance of the evidence and was,
           therefore, an abuse of discretion.




                                     xi
      Appellant, Lea Percy McLaurin, submits the following Appellant’s Brief.

Appellant asks this Court to reverse the judgment of the trial court and remand for

a new trial. In support, Appellant offers as follows:

                            STATEMENT OF FACTS

      Lea Percy McLaurin and Scott Sutton McLaurin were divorced on

September 3, 2010. (7RR, Exhibit P-1). The property division was substantively

disposed of in an Agreement Incident to Divorce (AID). (7RR, Exhibit P-2).

      A. First Enforcement

      On January 4, 2011, Lea filed a motion to enforce certain terms of the

property division contained in the AID. (2RR 57, ln. 21 to 58, ln. 1). On February

1, 2011, a specific demand for the requested property was provided to counsel in

anticipation of a meeting to discuss the case. (7RR, Exhibit R-25). After that

meeting, the January 4, 2011 enforcement was nonsuited.

      B. Second Enforcement

      In March 2011, having narrowed the issues since the first motion was

nonsuited, Lea filed a second motion to enforce. (7RR, Exhibit R-55; 3RR 59, ln.

20 through 61, ln. 2). At the time that suit was filed the following major property

issues remained:

      1.     Scott had not signed a quitclaim deed for a piece of real property
             located in Oklahoma (RR. P. 56, line 13 - p. 57. line 9; RR; Finding of


                                          1
             Fact 23 and 24). This issue was later abandoned after Scott signed a
             quitclaim deed.

      2.     Lea’s portion of the Lincoln investment account had not been
             transferred. (7RR, Exhibit R-55, Exhibit A, p. 2; Finding of fact no.
             27). This issue was later abandoned after Lea’s portion had been
             transferred.

      3.     The bonds awarded to Lea in the divorce had not been transferred.
             (2RR 63, ln. 23 – 64, ln. 1; Finding of Fact 13). This issue was later
             abandoned after the bonds had been transferred.

      4.     The Patrick Brannon diamond awarded to Lea had not been
             surrendered. (6RR 72, ln. 1-6; 2RR 54, ln. 17-20; 3RR 11, ln. 21- p.
             12, ln. 20; Finding of Fact 15). This issue remained at trial.

      5.     Lea was still owed bonuses and reimbursement received by Scott.
             (5RR 125, ln. 13-16). This issue remained at trial.

      6.     Numerous personal property items had not been surrendered to Lea.
             (2RR 67, ln. 12 –68, ln. 8; Finding of Fact 18; 3RR 13, ln. 24 - 17, ln.
             5). This issue was later abandoned after the personal property items
             had been surrendered to Lea.

      All these issues were covered in the demand letter sent to Scott’s counsel

prior to the nonsuit and prior to filing the suit at bar. (7RR, Exhibit R- 25).

      C. Lea amends her Enforcement Motion prior to trial

       Movant amended her original motion for enforcement three times prior to

trial. After the suit was filed, Scott finally complied with certain terms of the

property division (as described above), and Lea was able to get some of the

property identified in her enforcement. For example, Lea was successful in



                                           2
obtaining all of the bonds she had been entitled to (3RR 14). As various issues

became moot, Lea amended her pleadings.

      Respondent’s live pleading at trial was the Second Amended Answer to

Amended Motion to Enforce. (CR 3).

      D. Remaining issues at trial

      As explained above, several of the claims contained in earlier pleadings

were abandoned by the time of trial. Two issues remained: (1) the division of

bonuses and reimbursements received by Scott, and (2) the transfer of a diamond.

(7RR, Exhibit R-55). It was undisputed that, as of the time of trial, neither the

diamond nor the bonuses had been tendered to Lea. (6RR 72, ln. 1-6; 5RR 125 ln.

13-16).

      E. Judge denies Lea’s requested relief and sanctions her more than
         $50,000 in attorney’s fees

      On March 3, 2014, the trial court issued its rendition.

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

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

and Bad Faith Filing (the “Final Judgment”). (CR 12, Appendix 1). The Final

Judgment denies all of Lea’s requested relief. (CR 13). The Final Judgment also

grants a judgment against Lea for attorney’s fees in the amount of $52,378.88. The

trial court ordered the sanctions to be paid by 3:00 p.m. on June 12, 2014. (CR 15).


                                         3
      The trial court’s order specified that the sanctions were imposed as

punishment for Lea’s Fourth Amended enforcement petition. (CR 27, last

paragraph).

      Lea timely requested findings of fact. (CR 17). The trial judge signed

findings on July 7, 2014. (CR 34-38)

      This appeal was timely filed. (CR 62)

      F. Judge incarcerates Lea for failure to pay the sanctions by a date
         certain

      While this appeal was pending, Scott moved the trial court to enforce the

attorney’s fees sanction by holding her in contempt and committing her to jail. (See

also Petition for Writ of Habeas Corpus filed by Lea on November 14, 2014, in

No. 01-14-00920-CV). The trial court granted Scott’s motion and incarcerated Lea.

Id. This incarceration for failure to pay a debt is the subject of the pending petition

for writ of habeas corpus filed by Lea on November 14, 2014. This Court ordered

that Lea be released from custody pending determination of the petition. As of the

date of this brief, this Court has not yet ruled on the petition.

                        SUMMARY OF THE ARGUMENT

      The trial court abused its discretion by granting sanctions against Lea

because her suit was neither groundless nor brought for an improper purpose. Lea

had a good faith basis for her claims and made a reasonable inquiry prior to filing.

                                            4
Lea did not bring her claims to harass but to enforce and/or clarify the terms of the

divorce and to ensure a proper transfer of the estate. The entry of the findings and

resulting order are contrary to the evidence before the trial court.

      The trial court improperly imposed a date certain for the sanctions to be

paid. Forcing a party to pay a money judgment prior to the disposition of an appeal

forces the judgment debtor to waive his appellate issues. Moreover, a trial court

has no authority to incarcerate a person for failure to pay a debt.

      The trial court improperly denied Lea’s requested relief. The great weight

and preponderance of the evidence at trial demonstrated that Lea was entitled to

relief on her claims for bonuses and the Brannon diamond. The trial court’s ruling

otherwise was an abuse of discretion.

                       ARGUMENT AND AUTHORITIES

 I.   The trial court erred in granting sanctions against Lea. The suit was
      neither frivolous nor brought in bad faith. The pre-trial investigation
      made was adequate. The entry of findings of fact and the order are
      contrary to the evidence and are, thus, an abuse of discretion (ISSUE 1)

      A. Rule 13 Sanctions

      In evaluating an allegation of a Rule 13 violation, “courts shall presume that

pleadings, motions, and other papers are filed in good faith.” Tex. R. Civ. P. 13.

Rule 13 requires the trial court to hold an evidentiary hearing to make the

necessary factual determination about the motives and credibility of the person


                                           5
signing the allegedly groundless petition. Busby v. Dow Chem. Co., 931 S.W.2d

18, 21 (Tex. App.—Houston [1st Dist.] 1996, no writ). Rule 13 provides for

sanctions if a party files a pleading that is either (1) groundless and brought in bad

faith or (2) groundless and brought to harass. Tex. R. Civ. P. 13. Importantly,

both bases require the document to be groundless.

      The trial court must examine the circumstances existing when the litigant

filed the pleadings to demine whether Rule 13 sanctions are proper. Monroe v.

Grider, 884 S.W.2d 811, 817 (Tex. App.—Dallas 1994, writ denied). Bad faith

does not exist when a party exercises bad judgment or even negligence. Rather, “it

is the conscious doing of a wrong for dishonest, discriminatory, or malicious

purposes.” Falk & Mayfield L.L.P. v. Molzan, 974 S.W.2d 821, 828 (Tex. App.—

Houston [14th Dist.] 1998, pet. denied) (quoting Campos v. Ysleta Gen. Hosp. Inc.

879 S.W.2d 67, 71 (Tex. App—El Paso 1994, writ denied)). Courts must presume

that papers are filed in good faith, and the party moving for sanctions bears the

burden of overcoming this presumption. See Tarrant County v. Chancey, 942

S.W.2d 151, 154 (Tex. App.—Fort Worth 1997, no pet.). Improper motive is an

essential element of bad faith. Elkins v. Stotts-Brown, 103 S.W.3d 664, 669 (Tex.

App.—Dallas 2003, no pet.).

      “Groundless” as used in Rule 13 means “there is no arguable basis for the

cause of action.” Attorney General of Texas v. Cartwright, 874 S.W.2d 210, 215
                                          6
(Tex. App.—Houston [14th Dist.] 1994, writ denied). Texas courts have

consistently held that when the underlying claim or assertion has merit and

evidentiary support, it is an abuse of the trial court’s discretion to impose

sanctions. See In re Y.B., 300 S.W.3d 1, 5-6 (Tex. App.—San Antonio 2009, pet.

denied) (holding that the underlying claim had merit and, therefore, trial courts

imposition of sanctions finding that underlying claim was groundless, brought in

bad faith and for the purposes of harassment was an abuse of discretion). Ball v.

Rao, 48 S.W.3d 332, 336-338 (Tex. App.—Forth Worth 2001, pet. denied)

(holding that imposition of sanctions was abuse of discretion because claims had

evidentiary support and were, therefore, not baseless, frivolous, or groundless).

      B.     Section 10.004 Sanctions

      Texas Civil Practice and Remedies Code section 10.004 allows sanctions if a

motion or pleading signed by a person (1) is presented for an “improper purpose,”

including harassment or to unnecessarily delay or increase the expense of

litigation; (2) contains a legal contention that was not warranted by existing law or

non-frivolous argument for modification, extension or reversal of current law; (3)

contains factual contentions that are not supported by evidence, or is unlikely to

have evidentiary support after discovery; or (4) contains denials not warranted by

the evidence. Tex. Civ. Prac. & Rem. Code §§ 10.001, 10.004 (West 2002),



                                          7
Ochsner v. Ochsner, No. 14-11-00395-CV; 2012 WL 1854743 (Tex. App. [14th

Dist.] May 22, 2012, no pet.).

      Scott failed to demonstrate that Lea was not entitled to any one item

requested at the time it was requested. The relevant inquiry is when the pleading

was filed. There was no evidence that the suit was brought for an improper

purpose. Lea had a right to enforce the property division. There is no evidence that

the pleading contained a legal contention that was not warranted by existing law or

non-frivolous argument for modification, extension, or reversal of current law.

Lea’s claims were authorized by the Texas Family Code. There is no evidence that

the pleadings contained factual contentions that were not supported by evidence or

are unlikely to have support after discovery. There was no evidence that the

pleading contained denials not warranted by the evidence. Therefore, there was no

basis for the trial court to impose sanctions under Rule 13 of the Texas Rules of

Civil Procedure or Chapter 10 of the Civil Practices and Remedies Code.

      Sanctions must be “just.” Paradigm Oil, Inc. v. Retamco Oper., Inc., 372

S.W.3d 177, 184 (Tex. 2012). Sanctions should be directly related to the offensive

conduct. Id. A just sanction must be directed against the abuse and toward

remedying the prejudiced caused to the innocent party. American Flood Research,

Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006). Sanctions should be no more

severe than necessary to promote full compliance with the rules. Paradigm Oil,
                                         8
372 S.W.3d at 187. Courts should consider the least-stringent sanction necessary to

promote compliance. American Flood, 192 S.W.3d at 583.

      In this case, the sanction is excessive and not “just.” Lea was sanctioned

with a judgment against her of more than $50,000 in attorney’s fees. This does not

have any direct relationship to the conduct complained of. Moreover, there is no

evidence that Lea’s claims were groundless or brought in bad faith or for an

improper purpose. In addition, at the time her original motion was filed, she had a

good faith basis for each allegation. As the litigation progressed and issues became

moot, Lea amended her pleadings and proceeded to trial on only the last two

remaining issues. Sanctions are imposed to protect the innocent party. Scott was

not innocent in this case. It was undisputed at the time of trial that Lea was owed

money for reimbursements and a diamond.

      C. Challenges to separately filed Findings of Fact (CR 34)

      The trial court entered findings of fact and conclusions of law (CR 34) and

also included findings in the sanctions order (CR 26). Appellant challenges both

sets of findings. Appellant’s challenges to the separately filed findings of fact are

as follows:

      Finding of fact no. 3 states:

       3.     In March 2011, Lea filed a Motion to Enforce Final Decree of
              Divorce and Agreement Incident to Divorce (the “Enforcement”), in
              which she:

                                         9
A.   Sought to enforce the provision of the Decree and AID,
     awarding Lea the diamond given to wife by Patrick Brannan,
     which was located in a safe deposit box at Chase Bank,
     Medical Center location,

B.   Sought to enforce the provision of the Decree and AID,
     awarding Lea the coins belonging to Lea or Christopher
     McLaurin, which was located at a safe deposit box at Chase
     Bank, Medical Center location;

C.   Sought to enforce the provision of the Decree and AID,
     awarding Lea certain real property located in Payne County,
     Oklahoma;

D.   Sought to enforce the provisions of the Decree and AID,
     awarding Lea the First Colony Life Insurance Policy, No.
     5164362;
E.   Sought to enforce the provision of the Decree and AID,
     awarding Lea a portion of the Lincoln Investments account
     ending in 0305,

F.   Sought to enforce the provisions of the Decree and AID,
     awarding Lea certain United States Savings Bonds, in Scott’s
     possession;

G.   Sought to enforce the provision of the Decree and AID,
     awarding Lea a 2006 Lexus GX470.

H.   Sought to enforce the provision of the Decree and AID,
     awarding Lea “fifty percent (50%) net of taxes of ANY bonuses
     or reimbursements received by Husband through April 30,
     2010”;

I.   Sought to enforce the provision of the Decree and AID,
     awarding Lea the contents of the safe deposit boxes at BBVA
     Compass and Wells Fargo Bank.



                         10
              J.    Sought to enforce the provisions of the Decree and AID,
                    awarding Lea various Christmas ornaments, Gibson plates,
                    stuffed animals, and family photographs and videos
                    (collectively, the “Personal Property”).

              K.    Brought a cause of action for conversion against Scott; and

              L.    Sought recovery of her attorney’s fees.

(CR 34-35).

Response:     There was no evidence presented of the substance of the March 2011

petition or nature of the case. Neither the clerk’s record nor the reporter’s record

contains such a motion.

      Finding of fact no. 4 states:

      4.      On November 9, 2012, Lea served on Scott’s counsel of record a First
              Amended Motion to Enforce Final Decree of Divorce and Agreement
              Incident to Divorce (the “1st Amended Enforcement”), in which she
              restated the allegations contained in Enforcement.

(CR 35).

Response:     There was no evidence presented as to the allegations and date of the

“First Amended Motion to Enforce”.

      5.      On March 6, 2013, Lea served upon Scott’s counsel her Second
              amended Motion to Enforce Final Decree of Divorce and Agreement
              Incident to Divorce (“2” Amended Enforcement”) in which she
              abandoned all prior allegations, EXCEPT for those in which she:

              A.    Sought to enforce the provision of the Decree and AID,
                    awarding Lea the diamond given to wife by Patrick Brannan,
                    which was located in a safe deposit box in Chase Bank,
                    Medical Center location;
                                         11
             B.    Sought to enforce the provisions of the Decree and AID,
                   awarding Lea certain United States Savings Bonds, in Scott’s
                   Possession;

             C.    Sought to enforce the provision of the Decree ad AID, awarding
                   Lea “fifty percent (50%) net of taxes of ANY bonuses or
                   reimbursements received by Husband through April 30, 2010”.

             D.    Brought a cause of action for conversion against Scott; and

             E.    Sought recovery of her attorney’s fees.

Response:    There is no evidence as to the allegations and date of the “Second

Amended Motion to Enforce”.

      Finding of fact no. 6 states:

      6.     On March 18, 2013, Lea served upon Scott’s counsel her Third
             Amended Motion to Enforce Final Decree of Divorce and Agreement
             Incident to Divorce (“3rd Amended Enforcement”), in which she
             restated those allegations contained in the 2nd Amended Enforcement.

Response:    There is no evidence as to the allegations and date of the “Third

Amended Motion to Enforce”. No such motion appears in the record.

      As for findings 3, 4, 5, and 6 above, there were no sanctions granted on these

pleadings. The sanctions order does complain of any of those filings. Nor were

those filings presented into evidence.

      Finding of fact no. 7 states:

      7.     On March 27, 2013, Lea served upon Scott’s counsel her Fourth
             Amended Motion to Enforce Final Decree of Divorce and Agreement

                                         12
             Incident to Divorce (“4” Amended Enforcement”), in which she
             abandoned all prior allegations, EXCEPT for those in which she:

             A.     Sought to enforce the provision of the Decree and AID,
                    awarding Lea the diamond given to wife by Patrice Brannan,
                    which was located in a safe despot box at Chase Bank, Medical
                    Center location,

             B.     Sought to enforce the provision of the Decree and AID,
                    awarding Lea “fifty percent (50%) net of taxes of ANY bonuses
                    or reimbursements received by Husband through April 30,
                    2010”; and

             C.     Brought a cause of action for conversion against Scott.

Response:    Lea adopts the following arguments in demonstrating that the filing of

the suit and its original complains were based in facts, were meritorious, and

remained unresolved to the extent complained of in the 4th Amended Motion.

      Finding of fact no. 11 states:

             11. Lea’s prior counsel prepared and forwarded to Scott’s counsel an
                 Assignment of Interest, transferring certain United States Savings
                 Bonds to Lea, and on or about September 8, 2010, Scott executed
                 such Assignment of Interest, and returned it to Lea’s counsel.

Response:    There is no evidence the document referenced in this finding would be

effective to transfer ownership of the securities at issue.

      Finding of fact no. 12 states:

             12. On or about October 28, 2010, Scott, by and through his
             counsel of record, provided a “corrected” Assignment of Interest
             transferring such United States Savings Bonds to Lea, which he had
             executed, to Lea’s counsel of record, for Lea’s execution, and Lea
             refused to execute such Assignment of Interest.
                                          13
Response: The document would have Lea surrender to Scott her bonds. It is not

“correct”. (RR. V. 7, R-23). Such is contrary to the property award. (7RR,

Exhibit P-2) and is not supported by any evidence. The fact, although true, is of no

moment, other than it does demonstrate a need to proceed with litigation to get the

actual award transferred.

      Finding of fact no. 13 states:

      13    On or about March 8, 2013, while the litigation was pending, Lemkuil
            provided a new form of an assignment of interest in such United Sates
            Savings Bonds. Scott executed the new assignment of interest prior to
            trial.

Response:   Although this is true, the date is after the litigation had been filed. The

relevant inquiry for reviewing sanctions is the facts known at the time the petition

was filed. The enforcement motion was clearly based in fact and was not

groundless or sanctionable.

      Finding of fact no. 14 states:

      14.   Prior to the initiation of this lawsuit, Scott attempted to exchange the
            diamond and coins (if any) which had been located in the safe deposit
            box at Chase Bank, Medical Center location in Scott’s name for the
            Rolex watch, which was awarded to him pursuant to the Decree and
            AID; however, Lea refused to cooperate in exchanging such items.

Response:   Scott’s attorney stated this in argument at trial, but there was no

evidence presented that this event ever occurred.

      Finding of fact no. 15 states:
                                         14
      15.    On or about November 7, 2012, Scott tendered to Lea, by delivery to
             her attorney, the diamond referenced in Lea’s pleadings.

Response.    The entire trial involved whether particular diamonds were conveyed.

Scott testified it was the Mine Cut Diamond. (RR: Vol. 5, p 104, line 15 to p. 105,

line 22). Lea testified it was NOT the Brannon Diamond (RR: Vol 3, p. 12, lines

17-20).

      Finding of fact no. 16 states:

      16.    Prior to the initiation of this lawsuit, Scott packaged the Christmas
             ornaments, the Gibson plates, and the stuffed animals, and made them
             available to Lea.

Response:    Scott’s attorney stated this in argument at trial, but there was no

evidence presented that this event ever occurred.

      Finding of fact no. 17 states:

      17.    Lea made no attempt to take possession of the Christmas ornaments,
             the Gibson plates, or the stuffed animals after Scott made them
             available.

Response:    The uncontroverted evidence says otherwise. (See e.g., 2RR, p. 71,

lines 23 - p. 72, line 3); see also Finding of Fact 18).

      Finding of fact no. 18 states:

      18.    After the initiation of this lawsuit, Lea retrieved some of the personal
             property from Scott’s counsel’s office.




                                           15
Response: This is true but is of no moment. Indeed, the fact that such property was

not transferred until after the suit was filed indicates that Lea’s lawsuit had a basis

in law and fact and was not groundless or frivolous.

      Finding of fact no. 19 states:

      19.    The AID states that Scott shall make the family photographs and video
             available to Lea so that she may duplicate them, however as of her
             filing of this litigation, Lea had not requested the photographs or
             videos for duplication.

Response: There is no evidence that Scott made the photos and videos available.

There was, however, evidence that a demand for them made prior to the suit.

(7RR, Exhibit R-25).

      Finding of fact no. 20 states:

      20.    Prior to initiating this litigation for performance of the contracts or
             payment of any alleged money due and owing, neither Lea nor her
             attorney of record made demand upon Scott, upon his attorney of
             record, or upon any other dully authorized agent for performance or
             payment.

Response:    There is no requirement that a party must make a demand for property

before filing a suit for enforcement. Failure to make a demand is not an issue

related to whether a good faith investigation was conducted prior to filing suit. The

finding is in direct conflict with the uncontroverted facts. The final transfer of

funds did not occur until after suit was filed. (4RR 112, ln. 23 to 113, ln. 14).




                                          16
      Further, the finding conflicts with the evidence of the existence of the prior

lawsuit for ostensibly the same relief. (3RR 59, ln. 20 - 61, ln. 2). There is also a

written request offered as one of Scott’s own exhibits. (7RR, Exhibit R-25).

      Finding of fact no. 21 states:

      21.    Prior to entry of the Decree, Scott paid all sums owed to Lea as a
             result of the provision of the Decree and AID awarding Lea “fifty
             percent (50%) net of taxes of ANY bonuses or reimbursement received
             by Husband through April 30, 2010.

Response: This is contrary to Scott’s testimony. (5RR 125, ln. 13-16). It is also

contrary to Lea’s testimony. (3RR 13, ln. 24 - 17, ln. 5).

      Finding of fact no. 22 states:

      22.    Prior to initiating this litigation for performance of the contract as it
             related to the real property in Payne County, Oklahoma, Lea did not
             present any conveyance documents to Scott for execution.

Response. The evidence on this issue is conflicting, but it is of no moment.

      Finding of fact no. 23 states:

      23.    On or about May 3, 2012, Lemkuil forwarded to Scott’s counsel a
             Quitclaim Deed, transferring the real property located in Pain
             County, Oklahoma, and asked that Scott execute such Quitclaim
             Deed.

Response: Although this is true, it was after the lawsuit had already been filed.

      Finding of fact no. 24 states:

      24.    Scott executed the Quitclaim Deed, and returned it to Lemkuil.



                                         17
Response: There is no evidence of this in the record. Again the finding is of no

moment as the issue was abandoned prior to trial.

      Finding of fact no. 25 states:

      25.    Prior to Lea initiating this litigation, Scott made numerous attempts to
             transfer Lea’s portion of Lincoln Investments account no 0305 (the
             Lincoln Account”) to her.

Response: This is not relevant to the sanctions order wherein Lea was sanctioned

for failing to investigate prior to filing suit. Moreover, Scott’s alleged efforts to

transfer money to Lea were for less money than was properly awarded to Lea.

(4RR 112, ln. 23 – 113, ln. 14). Lea had a good faith basis for enforcing this

provision. The lawsuit was necessary to clarify and enforce the prior orders.

      Finding of fact no. 26 states:

      26.    Lea continually refused to supply Scott, his financial advisor, or her
             own financial advisor with the information required to enable Scott to
             transfer her portion of the Lincoln Account to her.

Response: In response to this finding, Lea adopts the proceeding response to 25

above.

      Finding of fact no. 27 states:

      27.    In November 2011, after the unnecessary expenditure of attorney’s
             fees, Lea provided the required information to enable the transfer of
             her portion of the Lincoln account, and the transfer was completed.

Response:    This finding is in conflict with conclusions of law nos. 4 and 5. The

transfer was not completed until after the suit was filed. After the suit was filed, a
                                         18
new calculation was made wherein Lea was able to recover a more accurate

percentage then offered to her pre-filing. The final Lincoln Investment money was

not offered until after it was first held for ransom to Lea for to dismiss her claims

for bonus and expenses money. (7RR, Exhibit R-55, Ex. A). “Finally, I am

authorized to say that Scott will transfer the Lincoln Account if Leah drops

any claims against him.” Id.

      Finding of fact no. 28 states:

      28.    Lea by and through her attorney of record failed to make reasonable
             inquiry into the facts surrounding the allegations contained in the
             Enforcement, the Amended Enforcement, the 2nd Amended
             Enforcement, the 3rd Amended Enforcement, or the 4th Amended
             Enforcement, prior to filing each such pleading.

Response: The reasonable inquiry issue as to each amendment was not a basis for

sanctions as provided by the order (CR 12-16) as opposed to conclusion 7 (CR 38).

As the basis for the sanctions must be provided in the order, these issues as stated

here are without meaning. Tex. R. Civ. P. 13.

      Scott fails to provide or identify any fact that was not considered or

identified by Lea prior to her filing the suit. The Final Judgment does not address

the 1st Amended Enforcement, 2nd Amended Enforcement, or 3rd Amended

Enforcement. There is no evidence or pleadings to support the findings.

      Finding of fact no. 29 states:



                                         19
        29.   After the facts surrounding Lea’s, by and through her attorney of
              record, failure to make reasonable inquiry were brought to their
              attention in a meeting with Scott’s attorney of record, he continued to
              pursue a trial regarding Lea’s allegations.

Response: This is not a basis for sanctions as provided by the order CR 12-16 as

opposed to conclusion 7, CR 38). Further, the moving party must prove the

pleading party’s subjective state of mind. Thelemann v. Kethan, 371 S.W.3d 286,

294 (Tex. App.—Houston [1st Dist.] 2012, pet. denied). Scott has not done so.

        There is no evidence of any issue that counsel failed to uncover that supports

a finding or sanction for failure to make inquiry. To the contrary, Scott associates a

failure to make a demand as evidence of a failure to make reasonable inquiry. Yet

Scott’s own evidence, specifically Exhibit R-25, demonstrates that a demand was

made.

        The applicable standard of review on a sanction order is abuse of discretion.

Laub v. Pesikoff, 979 S.W.2d 686, 693 (Tex. App.—Houston [1st Dist.] 1998, pet.

denied). The test is whether the trial court acted without reference to any guiding

rules and principles. Downer v. Aquamarine Operators, Inc. 701 S.W.2d 238, 241-

42 (Tex. 1985). A sanctions order will be overturned if it is based on an erroneous

view of the law or a clearly erroneous assessment of the evidence. Home Owners

Funding Corp. of Am. v. Scheppler, 815 S.W.2d 884, 889 (Tex. App.—Corpus

Christi 1991, no writ.). In reviewing sanctions orders, courts are not bound by the

                                          20
trial court’s findings of fact and conclusions of law; rather, appellate courts must

independently review the entire record to determine whether the trial court abused

its discretion.” American Flood, 192 S.W.3d at 583.

      Scott provided no evidence that the petition was factually untrue. No

argument that there is not a body of law that supports enforcement proceedings to

compel compliance with property divisions. Therefore, Rule 13 sanctions do not

apply and were improperly imposed by the trial court. Likewise, Chapter 10

sanctions were not appropriate. Scott made no demonstration that Lea’s claims

were frivolous or made for an improper purpose. There is no evidence of an

improper benefit derived by Lea as a result of the litigation.

      No sanctions may be imposed under Rule 13 “except for good cause, the

particulars of which must be stated in the sanctions order.” Tex. R. Civ. P. 13.

This requirement to include particular findings (1) ensures that the trial court is

held accountable and adheres to the standard of the rule; (2) requires the trial court

to reflect carefully on its order before imposing sanctions; (3) informs the

offending party of the particular conduct warranting the sanction, for the purpose

of deterring similar conduct in the future; and (4) enables the appellate court to

review the order in light of the particular findings made by the trial court. Rudisell

v. Paguette, 89 S.W.3d 233, 237 (Tex. App.—Corpus Christi 2002, no pet.).



                                          21
      D. Challenges to Sanctions Order

      A sanctions order must contain an explanation of the basis for the sanctions

awarded. University of Texas v. Bishop, 997 S.W.2d 350, 355 (Tex. App.—Fort

Worth 1999, pet. denied); Jimenez v. Transwestern Prop. Co., 999 S.W.2d 125,

130 (Tex. App.—Houston [14th Dist.] 1999, no pet.). The Final Judgment here

makes clear that the sanctions ordered against Lea were the result of her Fourth

Amended Motion to Enforce. (CR 27). Citing Rule 13, the order states that “The

lawyer filing these pleadings failed to make reasonable inquiry before filing said

groundless and bad faith pleadings.” Rule 13 does not support an award of

sanctions for that purpose. Nevertheless, there is no evidence that the petition was

filed for an improper purpose.

      The specific reasons for the sanctions set out in the Final Judgment are not

supported by the evidence. Appellant challenges each of the reasons as follows:

             LEA PERCY McLAURIN claimed that SCOTT SUTTON McLAURIN
             breached his contractual obligation by failing to sign a quitclaim deed
             conveying his interest in real property located in Payne County,
             Oklahoma to LEA PERCY McLAURIN. In fact, LEA PERCY
             McLAURIN has never presented a quitclaim deed to SCOTT SUTTON
             McLAURIN for his signature.

(CR 28, para. 1).

      The claim regarding the Payne County, Oklahoma property was dropped and

is not contained in the Fourth Amended enforcement motion. (See 7RR, Exhibit R-


                                        22
55). Moreover, this paragraph conflicts with finding of fact 23, discussed above,

which states that Lea did in fact present the quitclaim deed to Scott for his

signature.

             LEA PERCY MCLAURIN claimed that SCOTT SUTTON MCLAURIN
             had breached his contractual obligation by failing to surrender to
             LEA PERCY MCLAUIRN her portion of the Lincoln Investment
             account ending in 0305. Prior to LEA PERCY MCAURIN filing this
             suit. SCOTT SUTTON MCLARIN made numerous attempts to transfer
             LEA PERCY MCLURIN’s portion of the account to her. LEA PERCY
             MCLAURIN continually refused to supply SCOTT SUTTON
             MCLAURIN, his financial advisor, Ross McLaurin, or her own
             financial advisor, Allen Weiner, with the information required to
             transfer her portion of the account. Finally, in November 2011, only
             after the unnecessary expenditure of attorney’s fees, LEA PERCY
             MCLAURIN provided the repaired information for transfer of her
             portion of the account, and the transfer was completed.

(CR 28, para. 2).

      This issue was abandoned in the Fourth Amended Motion. It was not an

issue at trial. Regardless, this finding conflicts with the evidence at trial and the

findings entered by the court. Specifically, conclusion of law deemed as a finding

of fact, 4 and 5. (4RR 112, ln. 23 to 113, ln. 14) Evidence also establishes that the

ultimate funds transferred as a result of litigation in an amount different than those

contemplated by Scott prior to litigation. In other words, even if it is true that Scott

attempted to give Lea some money prior to litigation, the fact remains that the

amount of money she was entitled to was in dispute. This was the proper subject of



                                          23
an enforcement suit. Lea cannot be punished for demanding that Scott follow the

AID.

             LEA PERCY MCLAURIN claimed that SCOTT SUTTON MCLAURIN
             breached his contractual obligation by failing to sign the documents
             necessary to transfer nine (9) savings bonds to LEA PERCY
             MCLAURIN which are in the name of SCOTT SUTTON MCLAUIRIN.
             On or about October 28, 2010, SCOTT SUTTON MCLAURIN
             provided LEA PERCY MCLAURIN, by and through her previous
             attorney, J.D. Bucky Allshouse, with an Assignment of Interest in said
             bonds. LEA PERCY MCLAURIN refused to execute the Assignment.

(CR 28, para. 3).

       This issue was not included in the Fourth Amended Motion. Moreover, the

finding is contrary to the record, wherein the referenced assignment would have

conveyed the ownership of the bonds to Scott, contrary to the award.            (7RR

Exhibit, R-23). It was not until after the suit had been filed that Scott executed the

papers necessary to transfer the bonds as contemplated by the agreement. (2RR 63

ln. 23 – 64. ln 1). After transfer had been completed, Lea amended her pleadings

and dropped that issue. (7RR, Exhibit R-55).

             LEA Percy McLaurin claimed that SCOTT SUTTON McLAURIN
             breached his contractual obligation by failing to surrender to LEA
             PERCY MCLAURIN the diamond given to LEA PERCY MCLAURIN
             by Patrick Brannan and the coins belonging to LEA PERCY
             MCLAURIN or Christopher McLaurin. SCOTT SUTTON MCLAURIN
             attempted to turn over the diamond and coins to LEA PERCY
             MCLAURIN in exchange for the Rolex watch awarded to him,
             however prior to this suit LEA PERCY MCLAURIN refused to
             cooperate in exchanging the items.

                                         24
(CR 28, para. 4).

      The foregoing issue of the diamond was a contested trial issue. The evidence

presented was conflicting. The issue of the coins were abandoned and were not

tried because Scott claimed that they were lost or missing. (5RR, p. 133, lines 2-

10). There was no evidence that Scott attempted to exchang the coins. The AID

awards a watch to Scott and the contents of a safe deposit box to Lea. The watch

provided Scott was from the box awarded to Lea. The diamond provided to Lea

was not provided until after the suit had been filed. There was legitimate confusion

among the parties as to which diamond was which. This determination was a

legitimate subject of the litigation. (3RR 102, ln. 9-12; 97, ln. 1-3; 5RR 104, ln. 15

– 105, ln. 22).

             LEA PERCY MCLAURIN claimed that SCOTT SUTTON MCLAURIN
             had breached his contractual obligation by failing to surrender to
             LEA PERCY MCLAURIN certain Christmas ornaments, Gibson
             Plates, stuffed animals, family photographs, and videos. Although
             SCOTT SUTTON MCLAURIN had made these items available to LEA
             PERCY MCLAURIN prior to the filing this lawsuit. LEA PERCY
             MCLAURIN failed to pick up or otherwise take possession of the
             items. The parties Agreement Incident to Divorce stated that SCOTT
             SUTTON MCLAURIN shall make the family photographs and videos
             available to LEA PERCY MCLAURIN so that she could copy or
             duplicate them. As of her filing of the suit LEA PERCY MCLAURIN
             had not requested the photographs or videos for duplicating.

(CR 29, para. 1).




                                         25
         This issue was not included in the Fourth Amended Motion on which the

parties proceeded to trial. (7RR, R-55). Therefore, there is no basis for this

reasoning for the sanction. It was not until after she filed suit that the items

referenced in this paragraph were made available to Lea for her to pick up. (2RR

71, ln. 23 - 72, ln. 8. It was arbitrary to sanction Lea for anything related to this

issue.

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

(CR 29, para. 2).

         This paragraph suggests that the attorney met with the judge. There is no

evidence of such a meeting. The only evidence of a meeting was one that was held

prior to filing suit. (7RR, Exhibit R-24).

         Therefore, the undisputed facts are that at the time of the filing of the

motion:

         1.    There was no signed quitclaim deed. (RR 56, ln. 13 – 57 ln. 9; Finding
               of Fact 23 and 24)

         2.    Lincoln investment account had not been transferred. (7RR, Exhibit
               R-55, Exhibit A to the petition at p. 2; Finding of Fact 27).

         3.    The bonds had not been transferred. (2RR 63, ln. 23 – 64, ln. 1;
               Finding of Fact 13)



                                             26
      4.     As of final trial, the Brannon diamond had not been surrendered.
             (2RR 54, ln. 17-20; 3RR 11, ln. 21- 12, ln. 20; Finding of Fact No. 15)

      5.     Not all the bonus and expense money was paid. (5RR 125, ln. 13 -16).

      6.     Numerous items of personal property had not been surrendered. (2RR
             67, ln. 12 –68, ln. 8; Finding of Fact 18; 3RR 13, ln. 24 - 17, ln. 5).

      All of these missing items were covered in the demand letter sent to Scott’s

counsel prior to the nonsuit and the suit at bar. (7RR, Exhibit R- 25). Thus, demand

was made for the items. To the extent that the trial court intended to punish Lea for

the enforcement petition that was nonsuited, this is not supported by the pleadings

and would be improper under existing law. Thompson v. Davis, 901 S.W.2d 939,

940 (Tex. 1995) (court could not extend sanction from earlier motion to modify

child support to later motion to modify custody).

      The trial was had on the issue of the payment of the bonuses and the third

referenced diamond. Neither of these issues is listed as a specific basis for the

sanctions. In fact, Scott himself admitted that as of trial he still owed Lea money

on the bonuses and expenses portion of the AID. (5RR 125, ln. 13 -16). Scott also

admitted that he could still have the Brannon diamond, having only turned over the

mine cut diamond. (5RR 104, ln. 15 – 105, ln. 22).




                                         27
II.   Trial court abused its discretion by including a due date for the
      judgment to be paid (ISSUE 2)

      The trial court ordered that the sanctions were to be paid on or before June

12, 2014 at 3:00 p.m. (CR 29). This was an abuse of discretion. In aid of her

argument on this issue, Appellant also respectfully refers this Court to the Petition

for Writ of Habeas corpus filed by Lea on November 14, 2014 in No. 01-14-

00920-CV. The trial court attempted to enforce the sanctions order by

incarcerating Lea for her failure to pay by a date certain. Lea sought a writ of

habeas corpus and this Court conditionally granted that habeas relief pending

review of her petition.

      Moreover, Lea cannot be forced by the trial court to abandon her appellate

issues by paying the judgment that she had properly appealed. “It is a settled rule

of law that when a judgment debtor voluntarily pays and satisfies a judgment

rendered against him, the cause becomes moot. He thereby waives his right to

appeal and the case must be dismissed.” Highland Church of Christ v. Powell, 640

S.W.2d 235, 236 (Tex. 1982) (internal citations omitted). Lea timely appealed the

sanctions order.

      The trial court’s inclusion of a deadline for payment of the judgment was

improper and an abuse of discretion. Lea asks this Court to render an order that any

deadline language be stricken from the Final Judgment.


                                         28
III.     The trial court abused its discretion by denying Lea’s requested relief.
         The great weight and preponderance of the evidence supported
         enforcement of the property division on the issue of bonuses and the
         diamond (ISSUE 3).

         The trial court erred by denying Lea’s requested relief with respect to the

only two remaining issues at trial: the bonuses she was owed and the missing

diamond. It was undisputed that, as of the time of trial, neither the diamond nor

the bonuses had been tendered to Lea. (6RR 72, ln. 1-6; 5RR 125, ln. 13-16).

         A. Bonuses/Reimbursements

         Scott confessed that at least some money was owed to Lea at the time of

trial:

         Q:    Do you believe you owe any money related to the bonus and
               reimbursements portions of the AID?
         A.    Yes.

(5RR 125, ln. 13-16). The great weight and preponderance of the evidence

indicates that Scott owed money to Lea and the trial court should have ordered the

accounting requested by Lea. The failure to do so was arbitrary and an abuse of

discretion.

         Although Scott plead accord and satisfaction and tendered some of the

missing money, it was only done so in trust for a release from the other money he

owed. (7RR, Exhibit R-42). There was no showing of accord and satisfaction for

the bonus money, and no evidence entered in support of the other affirmative


                                          29
defenses asserted. The essential elements of accord and satisfaction have remained

unchanged for many years and are clearly expressed in Jenkins v. Henry C. Beck

Company, 449 S.W.2d 454, 456 (Tex. 1969) (providing full disclosure, dispute,

unmistakable message of intent with tender, and an agreement of the parties to

accept a lesser amount.). (3RR 8, ln. 9-22).

      Further, despite no pleadings asserting that the provision of the AID

addressing the bonuses and expenses was vague, the court did not permit

examination into the bonus money paid since the divorce was filed until the closing

date set by the AID. The refusal to allow this testimony was arbitrary and an abuse

of discretion. The issue of an accounting and the monies owed should be reversed

and remanded for a complete examination of what money is due. It is clear form

the record that said bonuses were substantial. Therefore, Lea was harmed by this

error. (7RR, pgs. 67, 73, 75, and 77).

      B. Brannon Diamond

      Scott confessed that he did not attempt to return the Brannon diamond. Scott

admitted he only tendered the mine cut stone. (5RR 104, ln. 15 - 105, ln. 22). The

value of the Brannon diamond should have been paid to Lea. The evidence showed

that the value of that diamond was $15,000.00. (2RR 82, ln. 20-22).

                                     PRAYER

      For the foregoing reasons, Lea Percy McLaurin prays that this Court will:
                                         30
1.   Reverse the sanctions order and render an order that Scott take

     nothing on his request for sanctions. Alternatively, Lea asks this Court

     to reverse and remand on the issue of payment on a date certain.

2.   Reverse and remand this case for a full determination of the money

     still owed to Lea under the terms of the divorce decree and AID;

3.   In the event that this Court affirms the imposition of sanctions, to

     reverse and remand on the issue of the severity of the sanctions and

     costs.




                                      Respectfully submitted,

                                      LAW OFFICE OF DANIEL J. LEMKUIL

                                      /s/ Daniel J. Lemkuil
                                      Daniel J. Lemkuil
                                      State Bar No. 00789448
                                      1314 Texas Avenue, Suite 1515
                                      Houston, Texas 77002
                                      Telephone: (713) 993-9100
                                      Facsimile: (713) 225-0099
                                      daniel_lemkuil@flash.net

                                      LAW OFFICE OF JANICE L. BERG
                                      Janice L. Berg
                                      State Bar No. 24064888
                                      1314 Texas Avenue, Suite 1515
                                      Houston, Texas 77002
                                      Telephone: (713) 993-9100
                                 31
                                              Facsimile: (713) 225-0099
                                              janice@janiceberglaw.com

                                              ATTORNEYS FOR APPELLANT


             CERTIFICATE OF WORD COUNT COMPLIANCE

       Pursuant to Rule 9.4, I hereby certify that the number of words in this
document—exclusive of caption, identity of parties and counsel, statement
regarding oral argument, table of contents, index of authorities, statement of the
case, statement of issues presented, statement of jurisdiction, signature, proof of
service, certification, certificate of compliance and appendix is—7264.


                                              /s/ Daniel J. Lemkuil
                                              Daniel J. Lemkuil

                         CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the foregoing served on all counsel of
record in accordance with the Texas Rules of Appellate Procedure on February 2,
2015.


                                              /s/ Daniel J. Lemkuil
                                              Daniel J. Lemkuil




                                         32
                        NO. 01-14-00710-CV


              IN THE COURT OF APPEALS
FOR THE FIRST JUDICIAL DISTRICT OF TEXAS AT HOUSTON


                     LEA PERCY MCLAURIN,
                           APPELLANT

                                   v.

                  SCOTT SUTTON MCLAURIN,
                          APPELLEE

            On appeal from the 309th Judicial District Court
             Harris County, Texas | Cause No. 2009-06775


                               APPENDIX

        Tab No.        Title

        1              Final Judgment on Lea Percy McLaurin’s Motion to
                       Enforce and Scott Sutton McLaurin’s Motion for
                       Sanctions and Bad Faith Filing, signed April 8, 2014.

        2              Fourth Amended Motion to Enforce Final Decree of
                       Divorce and Agreement Incident to Divorce, filed
                       March 27, 2013.

        3              TEX. R. CIV. P. 13
        4              CIV. PRAC. & REM. CODE § 10.004
                    !
                    !
                    !
                    !
                    !
                    !
                    !
                    !
                    !
             APPENDIX!1!
                       !
 Final&Judgment&on&Lea&Percy&McLaurin’s&
    Motion&to&Enforce&and&Scott&Sutton&
   McLaurin’s&Motion&for&Sanctions&and&
   Bad&Faith&Filing,&signed&April&8,&2014&
&            &
                                     CAUSE NO. 2()()9..06775
                                                                                                     <Jvfq
IN THE MATTER OF                                 §              IN THE DISTRICT COURT OF .
THE MARRIAGE OF

LEA PERCY MCLAURIN
                                                 §
                                                 §
                                                 §
                                                                                                     I   o'h
AND                                              §
SCOTT SUTION MCLAURIN                            §              HARRIS COUNTY. TEXAS
                                                 §
AND IN THE lNTER.EST OF                          §
CHRISTOPHER MCLAURIN.                            §
A MINOR CHILD                                    §              309TH JUDICIAL DISTRICT
                                             '
FINAL JUDGMENT ON LEA PERCY McLAURIN'• MOTION TO ENFORCE and SCOTT
    SUUQN MgLAUf!IN's MQTION FOR SANCTI2rf§6ND BAD FAITH FlUNG

           On September 10. 2013, this case was called to trial on its           regular place on this
Court's docket.
1. Appea1111JC8S
           LEA PERCY MCLAURIN. Petitioner/Counter-Respondent$ appeared in person and
by and through her attorney of record* Daniel J. LemkuR, and announced ready for trial.
           SCOTT SUTTON MCLAURIN* Respondent/Counter-Petitioner, appeared in pei"$On
and by and through his attorney of record, Richard L. Flowers. Jr.pnf                   at9oECfl ready
for· u 1                                                                          Chrls Daniel
           ·•                                                                     Dlstrlet Clerk
2. Proceedings                                                                   APR 02 20Vt
           LEA PERCY McLAURIN. Petitioner, proceeded to           twtff31tQ :tmended
Motion to Enforce Final Decree of Divorce and Agreement lt\!trtertt to Qi{Qp. · SC&TT
SUTTON McLAURIN timely filed an answer. SCOTT SUTTON MclAURIN proceeded to
trial on his Second Amended Answer to LEA PERCY MclAURIN's Second Amended
Motion to Enforce Final Decree of Divorce and Agreement Incident to Divorce, and Motion
for Sanctions for Bad Faith Filing.
           Trial began on September 10. 2013. Thereafterl the Court sitting without a jury
conducted a trial of this matter on September 10. 11, 13, 16, and 20, 2013. AU parties
rested. The Court invited final argument. At the conclusion of final              argument. the Court



                     Anal Judgment on lea Petey Mclawin'a Motion to             and
                    Scott Sutton Mclaurin's Motion for sanctions and Bad Faith Filing
                                       McLAURIN v. McLAURIN
                                            Peg& 1 0(5                                             EXHIBIT
                                                                                                      26
took the matter under advisement. All matters of taw and of fact were submitted to the
Court
   On March 3, 2014, the Court issued its rendition in this matter by a written letter
addressed to both attorneys of record for the parties. The Court's rendition has been
incorporated into this Final Judgment
3. Jurisdiction and Venue
        The Court has jurisdiction over LEA PERCY MclAURtN•s Motion to Enforce as well
as SCOTT SUTTON McLAURtN•s Motion for Sanctions and Bad Faith Filing as a result of
prior proooedings. Venue is proper in Harris County.
   Ret:onl
        The record of testimony was duly reported by Delores Johnson. the offlCial court
reporter for the 30WH Judicial District Court of Hartis CountyJ Texat\.
5. Enfon:ement
        The Court having considered the pleadings, evidence, and arguments of counsel
finds that aU relief reques.ted in LEA PERCY McLAURIN's Fourth Amended Motion to
Enforce Final Decree of Divorce and Agreement Incident to Divorce is DENIED. It is
therefore.
        ORDERED. ADJUDGED and DECREED that the relief requested by LEA PERCY
MclAURIN in her Fourth Amended Motion to Enforce Final Decree of Divorce and
Agreement Incident to Divorce is DENIED and that she shall have and recover nothing from
SCOTT SUTTON MclAURIN.
6. Afothm for Sanctions
        The Court having considered the pleadings, evidence, and arguments of counsel
finds that the allegations contained in LEA PERCY McLAURIN's Fourth Amended Motion
to Enforce Final Decree of Divorce and Agreement Incident to Divorce are generally false,
groundleu 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.



                  Final Judgment on lea Percy Mclaurin's Motion to Enforce and
                 Scott Sulton Mcl.aunn•s Mctlon for Sancticnt and Bad Faith Filing
                                     McLAURIN v. McLAURIN
                                           Page2of!J

                                                                                     27
. .....
                 LEA PERCY McLAURIN daimed that SCOTT SUTTON MclAURIN breached his
          contractual obligation by failing to sign a quitclaim deed conveying his interest in real
          property located in Payne County, Oklahoma to LEA PERCY MclAURIN. In fact, LEA
          PERCY MclAURIN has never presented a quitclaim deed to SCOTT SUTION
          McLAURIN for his signature.
                 LEA PERCY MclAURIN claimed that SCOTI SUTTON McLAURIN had breached
          his contractual obligation by failing to surrender to LEA PERCY MCI.AURtN her portion
          of the lincoln Investments account ending in 0305. Prior to LEA PERCY MCLAURIN
          filing this suit, SCOIT SUTTON McLAURIN made numerous attempts to transfer LEA
          PERCY McLAURINls portion of the account to her, LEA PERCY McLAURIN continually
          refused to supply SCOTT SUTTON MclAURIN, his financial advisor, Ross Mclaurin, or
          her   own   financial advisor, Allen   Wetnerl with    the information required        to transfer her
          portion of the account Finally, in November 2011, only after the unnecessary expenditure
          of attorneys fees, LEA PERCY McLAURIN provided the required information for transfer
          of her portion of the account. and the transfer was completed.
                 LEA PERCY MclAURIN claimed that SCOTT SUTTON MclAURIN breached his
          contractual obligation by faiUng       to sign the documents necessary to transfer nine {9}
          savings bonds to LEA PERCY MclAURIN which are in the name of SCOTT SUlTON
          MclAURIN. On or about October 28, 2010, SCOTT SUTTON McLAURIN provided LEA
          PERCY MclAURIN, by and through her previous attorney, J.D. Bucky AUshouse, with an
          Assignment of lnteresis in said bonds. LEA PERCY MclAURIN refused to execute the
          Assignment
                  LEA PERCY MclAURIN claimed that SCOTI SUlTON MclAURIN breached his
          contractual obligation by failing to surrender to LEA PERCY MclAURIN the diamond
          given to LEA PERCY McLAURIN by Patrick Brannan and the coins belonging to LEA
          PERCY McLAURIN or Christopher Mclaurin. SCOTT SUTTON McLAURIN attempted
          to tum over the diamond and coins to LEA PERCY MclAURIN in exchange for the Rolex
          watch awarded to him, however prior to this suit, LEA PERCY MclAURIN refused to
          cooperate in exchanging the items.



                               Final Judgment on Lea Percy Mcl.aunn's Motion to Enfoft:e and
                             Scott Sutton Mclaurin's Motion for Sanctions and Bad Faith Filing
                                                 McLAURIN V, McLAURIN
                                                      Page3of5

                                                                                                              28
        LEA PERCY McLAURIN claimed that SCOTI SUTTON MclAURIN had breached
his contractual obUgation by failing to surrender to LEA PERCY MclAURIN certain
Christmas ornaments, Gibson plates., stuffed animals, family photographs, and videos.
Atthough SCOTT SUTTON MclAURIN had made these items available to LEA PERCY
MclAURIN prior to filing this lawsuit, LEA PERCY McLAURIN failed to pick up or
otherwise take possession of the items. The parties' Agreement Incident to Divorce
states that SCOTT SUTTON MclAURIN shall make the family photographs and videos
available to LEA PERCY MclAURIN so that she could copy or duplicate them. As of her
filing. of the     LEA PERCY McLAURIN had not requested the photographs or videos
for duplication.
        The attorney who filed these pleadings failed to make the reasonable inquiry
required priOr to filing this suit Further, after these facts were brought to the attention of
the attorney during a meeting with the undersigned, he continued to refuse to dismiss this
frivolous suit.
        The Court having considered the pleadings, evidence and argument of counsel
GRANTS the Motion for Sanctions for Bad Faith Filing filed by SCOTT SUTTON
MclAURIN. It i& 1hefefore,
         ORDERED, ADJUDGED and DECREED that SCOTT SUTION MclAURIN is
hereby granted a judgment against LEA PERCY MclAURIN as reimbursement for
attorneys fees incurred and paid in this case in the amount of Fifty Two Thousand Three
Hundred Seventy Eight and 88/100 DoUars ($52.378.88). It is further ORDERED that 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               by delivering cash, cashier's cheek 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 Boulevard, Suite 700, Houston, Texas.
1. Relief Not Granted and Court Costs
         It is ORDERED. ADJUDGED and DECREED that all relief requested by any party
and not granted herein is DENtED. It is further ORDERED that court costs are assessed
against LEA PERCY McLAURIN. This is a final judgment.

                     Final Judgment on lea Peroy Mclaurin's Motion to Enforce and
                   Scott SUtton Mct.aurtn's Motion for Sanctions and Bad Faith Filing
                                       Mci..AURIN V, McLAURIN
                                              Pege4of5

                                                                                            29
                                                                     oqegt;e to      counsel of record
and further noted in the Courfs file. but signed                                             2014.




APPROVED A.S TO FORM ONLY:




       RICHAR L           S, J .
       State B number 07180
       KRISTEN MARIE MILLER
       State Bar number 24084323
       5020 Montrose, Suite 700
       Houston, Texas 77006
       Telephone (713) 654-1415
       Facsimile (713)
       Service: seNice@rtlowers!aw.com
ATTORNEYS FOR SCOTf SUITON MCLAURIN

APPROVED AS TO FORM ONLY:

THE LAW OFFICE OF DANIEL J. LEMKU!L

By:--------------
  DANIEL J. LEMKUtL
  State bar number 00789448
       1314 Texas Avenue, Suite 1515
       Houston, Texas n002
       Telephone (713) 993-9100
       Facsimile (713) 225-0099

ATTORNEY FOR LEA PERCY MClAURIN




                   Final Judgment on Lea Percy McLaufin•s Motion to Enforce and
                 &:ott Sutton Mclaurin's Motion fot Sanctions and Bad Faith Filing
                                    Mcf..AURIN v. McLAURIN
                                           Page 5af5

                                                                                                  30
     l, Chris Daniel, District Clerk nf Harris
     County, Texas certify that this is a tme and
     correct copy of the original record .filed and or
     recorded in my office, electmnically or hard
     copy, as it appears on this date.
     Witness my oft1ciai hand and seal of office
     this Julyul. 2014


     Cert.ified Document Number:




     Chris Daniel, DISTRlCT CLERK
     HARRIS COUNTY, TEXAS




ln              l\''itb Texas Government Code 406.013 electtonicaUy transmitted authenticated
documents are valid.lf there is a question regarding      validity of this documtmt and or seal
please e--mail support(a}ltcdi!trictclerk.com



                                                                                                  31
                    !
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            APPENDIX!2!
                      !
    Fourth&Amended&Motion&to&Enforce&
  Final&Decree&of&Divorce&and&Agreement&
    Incident&to&Divorce,&filed&March&27,&
                   2013&
&             &
                                                                                     RECEIVED
                                               NO. 2009-06775
                                                                                      MAR 2 7 20\3
     IN THE MATTER OF                                §      IN THE DISTRICT COURT
     THE MARRIAGE OF                                 §                          FLOWERS LAW FIRM
                                                     §
     LEA PERCY MCLAURIN                              §
     AND                                             §      312TH JUDICIAL DISTRICT
     SCOTT SUTTON MCLAURIN                           §
                                                     §
     AND IN THE INTEREST OF                          §
     CHRISTOPHER MCLAURIN,                           §
     ACIDLD                                          §      HARRIS COUNTY, TEXAS

     FOURTH AMENDED MOTION TO ENFORCE FINAL DECREE OF DIVORCE AND
                   AGREEMENT INCIDENT TO DIVORCE

            This Fourth Amended Motion to Enforce Final Decree of Divorce and Agreement Incident to

    Divorce, intended to amend the third amended such motion and is filed by Lea Percy McLaurin,

    Movant, who shows in support:

            I.     Discovery in this case is intended to be conducted under level 2 of rule 190 of the

    Texas Rules of Civil Procedure.

           2.      This court has continuing, exclusive jurisdiction of this case.

           3.      Scott Sutton McLaurin, Respondent, may be served by and through his attorney of

    record, Richard L. Flowers, Jr., 5020 Montrose, Suite 700, Houston, TX 77006; VIA Fax 713-654-

    9898, in compliance with Rule 21, Texas Rules of Civil Procedure.

           4.      On September 3, 2010, this court signed an order entitled Final Decree ofDivorce

    appearing of record at image number 46280239 of the minutes of this court, which adopts and

    incorporates an Agreement Incident to Divorce executed on September 3, 2010.

           5.      The diamond described on page 6 of the agreement and expressly awarded to Lea

    Percy McLaurin under W-3 " ... including but not limited to the diamond given to wife by husband in

)                                                                                                    1
                                           i      EXHIBIT
his possession and furs in storage ... ", last seen in the safe deposit box located at Chase, Medical

Center, 6560 Fannin, Houston, Texas 77030, has been returned as identified in the correspondence

accompanying the transfer of the diamond from Scott Sutton McLaurin's attorney is attached hereto

as Exhibit A, and incorporated hearing for identification purposes. The returned diamond is not the

Patrick Brannan diamond.

       On page 5, the agreement provides that Scott Sutton McLaurin was awarded:

       "H-13. OTHER ASSETS TO HUSBAND

               a.   The safe deposit box located at Chase, Medical Center, 6560 Fannin, Houston,
                    Texas 77030, together with all prepaid fees, contents, and keys, except the actual
                    diamond given to LEA PERCY MCLAURIN by Patrick Brannan, and any coins
                    belonging to LEA PERCY MCLAURIN or CHRISTOPHER SCOTT
                    MCLAURIN."

       Lea Percy McLaurin would further describe the missing diamond (be it the Patrick Brannan
                  diamond or the above described and unnamed diamond) as: Round brilliant cut,
                  approximately two carats in weight, measuring LxWxD: 8.4- 8.5- 4.8 mm.,
                  Clarity Il, and Color I. The value of the diamond is approximately $10,000 to
                  $15,000.

       Alternatively, the diamond that has not been surrendered is the mine cut diamond also

described in Exhibit A.

       A diamond belonging to Movant as described above remains in Scott Sutton McLaurin's

possession and control despite repeated demands for its return. He has converted it to his own use.

If the diamond has become lost or stolen, demand is hereby made for judgment in an amount

sufficient to compensate Lea Percy McLaurin for the loss of the diamond. Additionally, since the

unlawful retention of the diamond has been knowing and intentional and with such malice as

necessary to support punitive damages, punitive damages should be awarded Lea Percy McLaurin.

       6.      On page 8, the agreement provides that Lea Percy McLaurin was awarded:


                                                                                                    2
      "W-11. Fifty percent (50%) net of taxes of ANY bonuses or reimbursements received by
Husband through April30, 2010."

       Scott Sutton McLaurin has breached his contractual obligations by failing to surrender to Lea

Percy McLaurin 50% net of taxes of any bonuses or reimbursements received by Scott Sutton

McLaurin through April30, 2010. Scott Sutton McLaurin continues to hold the funds in trust and as

a fiduciary for Lea Percy McLaurin. In violation of his duty as a trustee, he has failed to convey the

funds or otherwise invest the funds in an interest bearing account or otherwise minimize the loss of

interest income. Further, Scott Sutton McLaurin has failed to perform his duties as a trustee in

maximizing the proceeds for distribution to Lea Percy McLaurin.

       Scott Sutton McLaurin should be ordered to provide an accounting of the bonus accounts and

distributions, including reimbursements, expenses, draws, and other considerations giving rise to the

bonuses and reimbursements available for distribution. Scott Sutton McLaurin should be required to

pay not only the 50% of any bonuses and reimbursements he received, but 50% of any bonuses and

reimbursements he should have received.

       The bonuses and reimbursements referenced in the agreement incident to divorce, include all

bonuses and reimbursements earned or received (net of taxes only) from February 1, 2009 through

April 30, 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 the other bonuses and reimbursement claims as expressed below for an

additional pre-interest claim of: $31,618.95.

       The additional claims are further expressed as: $2,788.43; $557.50; $24; $2,124.72; $43.10;

$45.20; $1,279.50; $655.00; $2,086.00; $4,175.00; $449.50; $456.50; $223.00; $15,081.00;

$1,630.50, as more fully described in Exhibit 10, attached hereto with its sub parts.



                                                                                                    3
       7.      Conversion:

       Scott Sutton McLaurin has intentionally retained the possession of property awarded to Lea

Percy McLaurin despite her lawful demands for the property. As such, Scott Sutton McLaurin is

guilty of conversion. He continues to hold the property for the purpose of defrauding Lea Percy

McLaurin and attempting to permanently deprive her of her use of the property. Such acts are

intentional and knowing and of such a nature that punitive damages should be awarded to Lea Percy

McLaurin. The value of the goods should be awarded as a judgment or the property ordered

returned.

       8.      Movant requests that, if the court finds that any part ofthe order sought to be enforced

is not specific enough to be enforced by contempt, the court enter a clarifying order more clearly

specifying the duties imposed on Respondent and giving Respondent a reasonable time within which

to comply.

       9.      It was necessary to secure the services of Daniel J. Lemkuil, a licensed attorney, to

enforce and protect Movant's rights. Respondent should be ordered to pay reasonable attorney's fees,

expenses, and costs, and a judgment should be rendered in favor of the attorney and against

Respondent and be ordered paid directly to the undersigned attorney, who may enforce the judgment

in the attorney's own name.

       Movant prays that the specific relief requested above be granted, the property be ordered

surrendered to Lea Percy McLaren at a date, location, and time certain, a money judgment be

awarded for those monetary claims expressed above, reasonable and necessary attorney's fee be

awarded and that the court award pre and post judgment interest at the maximum legal rate. Movant

prays for such further and other relief as she may show herself entitled at law or in equity.


                                                                                                     4
                                            Respectfully submitted,

                                            The Law Office of Daniel J. Lemkuil
                                            1314 Texas Avenue, Suite 1515
                                            Houston, Texas 77002
                                            Tel: (713) 993-9100
                                            Fax: (713)                        //- " / )
                                                        /'   /1/(     /r;J'         /
                                                     ll·/'            ,         .
                                            By:       .A.      .    :;/". ·
                                                  Daniel J. Lemkuil
                                                  State Bar No. 00789448
                                                  Attorney for Lea Percy McLaurin




                               CERTIFICATE OF SERVICE

      I certify that a true copy of the foregoing was served on each attorney of record on March

27,2013.



                                            Daniel Lemkuil




                                                                                               5
                    LAW OFFICE OF RICHARD L. FLOWERS, JR.
                           5020 Montrose, Suite 700
                             Houston, Texas 77006
                           Telephone (713) 654-1415
                            Facsimile (713) 654-9898

                                   November 7, 2012

Mr. Daniel J. Lemkuil ·    (Via Hand Delivery, signed receipt required)
The Law Office of Daniel J. Lemkuil
1314 Texas Avenue, Suite 1515
Houston, Texas 77002

Re:   No. 2009-06775; Lea Percy Mclaurin v. Scott Sutton Mclaurin; In the 309th
      Judicial District Court of Harris County, Texas

Dear Mr. Lemkuil:

        This letter is being sent to your office via courier, signed receipt required. My
office called yours prior to delivery to confirm someone would accept and sign for it.

      Accompanying this letter please find   th'e following:
      1. Old mine-cut diamond;
      2. Original diamond appraisal;
      3. ·          copies of executed documents necessary to transfer Lea's share of
           the Lincoln account; and,
      4. Copies of the May 25, 2012 settlement proposal 1 sent to you and your June
           28, 2012 response.

       I am pleased to report that after further search, Scott has found another diamond.
This newly discovered diamond is enclosed and is the diamond described in the parties'
Agreement Incident to Divorce. It is this diamond that I am delivering to you.

      The second diamond is for the stone from the engagement ring Scott gave Lea.
She has the ring itself.             ·                                    ·

      I'm sending copies of the transfer documents for Lea's share of the Lincoln
account. We've marked them "copies". I am authorized to exchange the originals for
signed mutual notices of non-suit and a mutual release signed by Lea .

     . I am new to this case and trying to come up to speed. I've reviewed the case file
and the most recent communiQations concerning settlement. (It's attached.) I want to
be sure we are on the same pag-e.                                      ·


                                             EXHIBIT

                                              a
Mr.' Daniel J. Lemkuil
November 7, 2012
21Page

       I understand that Scott is wiHing to drop his financial claims, including those for
attorney's fees. This letter was sent with Leah's diamond.

       lf I am correct, the only outstanding issues are the transfer of Leah's share of the
Lincoln account and the resolution of Leah's $98,000 damage claim. What's Leah's
damage theory? Rick said he's asked for your calculations several times without
success. If you have a damage theory would you please share it with me?

      I've also been told that Leah will settle this case if Scott contractually obligates
himself for Christopher's college expenses. I've been told that is unacceptable.

      Finally, I am authorized to say that Scott will transfer the Lincoln account if Leah
drops any claims against him. We'll draft a mutual release and this matter will be over.
I hope that you and I can bring this matter to final resolution. I look forward to your
response.




Enclosures

cc:    ScottS. Mclaurin, M.D.
       Richard L. Flowers, Jr.
 DIAMONDS
                                      APPRAISAL                                                           ESTATES
 WATCHES
                                                                                                         APPRAISED
 JEWELRY



                                    1749 Post Oak Blvd - Houston, TX 77056
                                    ·          Tet: 713.960.8950

                                                                                    June 18, 2012
                                                                               DATE __________________ __


 TO WHOM fT MAY CONCERN:

 This is to Certify THAT WE ARE ENGAGED IN THE JEWELRY BUSINESS, Appraising Diamonds, Watches,
 Jewelry and Precious Stones of all descriptions and have been so engaged in said business tor many years.
 We herewith certify that we have this day carefully         the following listed and described articles the
 property of:

 M r. Scott Mclaurin

 ADDRESS 3820 Rice Boulevard, Houston, TX 77005

 We estimate the value as listed tor Insurance or other purpose at the current retail value, excluding Federal and
 other taxes. tn making this Appraisal, we do NOT agree to Purchase or replace the articles.




 One Old-Mine-cut diamond weighing 1.24 carats with approximate color J-K                                 $4,000.00
 and approximate clarity 811. Diamond is slightly "out of round".




 The forgoing Appraisal is made and accepted                                                                         6-_
 upon the express understanding that NO Liability
 or Responsibility is incurred by the Appraiser
.giving same.                                        PRINTED NAME -,--"'Sa.eo;gf."'e=V_,Z,.,a.._.d.._.o"-!.k,___ _ _ __
                                                                             GIA Graduate Gemologist
          !
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     APPENDIX!3!
             !
    TEX.&R.&CIV.&P.&13&
&   &
Rule 13. Effect of Signing of Pleadings, Motions and Other..., TX R RCP Rule 13




  Vernon's Texas Rules Annotated
    Texas Rules of Civil Procedure
      Part I. General Rules (Refs & Annos)

                                             TX Rules of Civil Procedure, Rule 13

                      Rule 13. Effect of Signing of Pleadings, Motions and Other Papers; Sanctions

                                                           Currentness


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. Attorneys or parties who shall bring a fictitious
suit as an experiment to get an opinion of the court, or who shall file any fictitious pleading in a cause for such a purpose,
or shall make statements in pleading which they know to be groundless and false, for the purpose of securing a delay of the
trial of the cause, shall be held guilty of a contempt. 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, 1 upon the person who signed it, a represented party, or both.

Courts shall presume that pleadings, motions, and other papers are filed in good faith. No sanctions under this rule may be
imposed except for good cause, the particulars of which must be stated in the sanction order. “Groundless” for purposes of this
rule means no basis in law or fact and not warranted by good faith argument for the extension, modification, or reversal of
existing law. A general denial does not constitute a violation of this rule. The amount requested for damages does not constitute
a violation of this rule.


Credits
Oct. 29, 1940, eff. Sept. 1, 1941. Amended by orders of July 15, 1987, eff. Jan. 1, 1988; April 24, 1990, eff. Sept. 1, 1990.


Editors' Notes

COMMENT--1990
   To require notice and hearing before a court determines to impose sanctions, to specify that any sanction imposed be
   appropriate, and to eliminate the 90-day “grace” period provided in the former version of the rule.



Notes of Decisions (585)



Footnotes
1      Probably Vernon's Ann.Rules Civ.Proc., rule 215.2(b).
Vernon's Ann. Texas Rules Civ. Proc., Rule 13, TX R RCP Rule 13
Current with amendments received through August 15, 2014

End of Document                                                       © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   1
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        APPENDIX!4!
               !
CIV.&PRAC.&&&REM.&CODE&§&10.004&
§ 10.004. Violation; Sanction, TX CIV PRAC & REM § 10.004




  Vernon's Texas Statutes and Codes Annotated
    Civil Practice and Remedies Code (Refs & Annos)
      Title 2. Trial, Judgment, and Appeal
         Subtitle A. General Provisions
           Chapter 10. Sanctions for Frivolous Pleadings and Motions (Refs & Annos)

                                    V.T.C.A., Civil Practice & Remedies Code § 10.004

                                                  § 10.004. Violation; Sanction

                                                          Currentness


(a) A court that determines that a person has signed a pleading or motion in violation of Section 10.001 may impose a sanction
on the person, a party represented by the person, or both.


(b) The sanction must be limited to what is sufficient to deter repetition of the conduct or comparable conduct by others similarly
situated.


(c) A sanction may include any of the following:


  (1) a directive to the violator to perform, or refrain from performing, an act;


  (2) an order to pay a penalty into court; and


  (3) 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.


(d) The court may not award monetary sanctions against a represented party for a violation of Section 10.001(2).


(e) The court may not award monetary sanctions on its own initiative unless the court issues its order to show cause before a
voluntary dismissal or settlement of the claims made by or against the party or the party's attorney who is to be sanctioned.


(f) The filing of a general denial under Rule 92, Texas Rules of Civil Procedure, shall not be deemed a violation of this chapter.


Credits
Added by Acts 1995, 74th Leg., ch. 137, § 1, eff. Sept. 1, 1995.



Notes of Decisions (74)

V. T. C. A., Civil Practice & Remedies Code § 10.004, TX CIV PRAC & REM § 10.004



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              1
§ 10.004. Violation; Sanction, TX CIV PRAC & REM § 10.004


Current through the end of the 2013 Third Called Session of the 83rd Legislature

End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                2
