                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-11-00018-CV

                 IN THE MATTER OF THE MARRIAGE OF
                         LARRY DON BIVINS
                               AND
                      CARMEN MARTINEZ BIVINS


                          From the 378th District Court
                               Ellis County, Texas
                             Trial Court No. 68,799D


                                    OPINION

      Larry Don Bivins appeals the trial court’s judgment awarding damages and

attorney fees using Chapter 9 of the Texas Family Code to enforce post-divorce

turnover of real property. We affirm the trial court’s judgment.

                                     BACKGROUND

      Larry Don Bivins (―Bivins‖) was married to Carmen Martinez (―Martinez‖).

When the parties split up in 2004, Temporary Orders were entered giving Bivins the

residence to live in and prohibiting Martinez from access to it. Other property was

maintained by each party which is not relevant to this appeal. In early 2006, the parties

resolved their marital issues through a Mediated Settlement Agreement (―MSA‖).

Bivins agreed to vacate the marital residence on April 1, 2006. The Decree of Divorce

was entered on August 4, 2006. At some point in time, the agreements fell apart. Both
parties dug their heels in and several Motions to Enforce were filed with ensuing court

orders that give insight into the continuing animosity between the parties. After one

such Motion to Enforce, the court ordered Bivins to leave the residence on August 18th.

Martinez took possession on August 19th of a demolished home. In December, 2006,

Martinez filed her Original Petition for Damages and Enforcement seeking damages for

repairs to make the home livable. After the trial, Martinez was awarded a money

judgment on December 10, 2010 for the cost of repairs and attorney fees. Findings of

Fact and Conclusions of Law were entered.

        The provision of the Decree that is the focus of this litigation follows:

        Larry Don Bivins is ORDERED to vacate the premises at 1100 FM 983,
        Ferris, Texas, on or before April 1, 2006, and represents that all
        improvements are in workmanlike state of repair at the time of signing
        this Decree, and will be of same or better repair on date of delivery.

        Bivins complains to this Court that Martinez’s claims are barred by res judicata;

that an improper measure of damages was applied; that the experts were not qualified

nor is their testimony factually or legally sufficient; and that attorney fees should be

limited and are not supported by the evidence.

                                          RES JUDICATA

        Bivins complains that Martinez’s claim for damages could have been decided

during the divorce and that at the time Martinez took possession of the residence and

saw its condition, the trial court’s plenary power had not expired. He maintains that

Martinez should have requested a new trial instead of seeking damages long after the

court lost jurisdiction to set aside the Decree.

Facts


In the Matter of the Marriage of Bivins                                             Page 2
        Bivins, in the prior litigation, sued Martinez for divorce which included only

property and debt division. There were no minor children. During the divorce, the

parties operated under Temporary Orders which gave Bivins exclusive possession of

the residence. Martinez was enjoined from access. The parties divided the property

and debts by mediation and the agreement was signed by both parties in February,

2006. It contained a provision making it ―binding on the parties and shall not be subject

to revocation.‖ The Divorce Decree entered by the trial court on August 4, 2006, was

not signed by the parties. Bivins asked the court to enforce the property division.

Martinez was ordered to transfer retirement benefits to him. Martinez also requested

enforcement of the property division. Bivins was ordered to deliver a vehicle and

vacate the home by August 18, 2006. Martinez took possession on August 19th. While

those orders were not appealed, they impact an evaluation of facts in the prior

litigation.

        By her Original Petition for Damages and Enforcement, Martinez asserted causes

of action for negligence, exemplary damages, breach of contract, enforcement of the

MSA and Temporary Orders, deceptive trade practices, and Texas Family Code Chapter

9, damages for repairs and the diminished value. She did not challenge the property

division awarded in the Decree. She had no claim for damages until after she took

possession of the home and saw its condition. Through various Motions for Summary

Judgment and Special Exceptions, the trial court excluded claims that were attacks on

the Decree. She has not appealed these rulings. The claim that survived was for Texas

Family Code Chapter 9 damages.

Holding

In the Matter of the Marriage of Bivins                                            Page 3
        Res judicata, or claims preclusion, prevents the re-litigation of a claim that was

adjudicated and resolved by a final judgment, as well as related matters that with the

use of diligence should have been litigated in the earlier suit. Barr v. Resolution Trust

Corp., 837 S.W.2d 627, 628 (Tex. 1992).

        Texas takes a transactional approach to claims preclusion. The Supreme Court in

Barr stated that

        A determination of what constitutes the subject matter of a suit necessarily
        requires an examination of the factual basis of the claim or claims in the
        prior litigation. It requires an analysis of the factual matters that make up
        the gist of the complaint, without regard to the form of action. Any cause
        of action which arises out of those same facts should, if practicable, be
        litigated in the same lawsuit.

Id. at 630.

        Texas Family Code section 9.010(a) states that ―If a party fails to comply with a

decree of divorce or annulment and delivery of property awarded in the decree is no

longer an adequate remedy, the court may render a money judgment for the damages

caused by that failure to comply.‖        TEX. FAM. CODE ANN. § 9.010(a) (West 2006).

Martinez did not challenge the property division awarded in the Decree. The orders on

the various Motions to Enforce were necessary to give effect to the property division in

the Decree.

        Martinez had no claim for damages until after she took possession and saw its

condition. Bivins cannot use his right to exclusive possession of the premises as a shield

of protection and later argue that Martinez should have made a claim for damages to

the home using his claim as a sword against her subsequent suit.

        Bivins would have his ex-wife file a Motion for New Trial if she wasn’t happy


In the Matter of the Marriage of Bivins                                                 Page 4
with the property division. By the time Martinez took possession of the home, the

property had been divided: he had his business, one half of her retirement and his

vehicles, she had the house, one half of her retirement, her vehicles, and they each had

assorted personal property. Martinez had to choose whether to re-litigate the property

division or seek damages for the failure to comply with the property division in the

decree. She chose to file a suit for damages. The issues involved in the divorce are not

the same as those in the suit for damages. See e.g. Eberstein v. Hunter, 260 S.W.3d 626,

628-629 (Tex. App.—Dallas 2008, no pet.) (where post-divorce petitions to enforce

property award and to enforce contractual alimony provision were filed under same

case number as underlying divorce, both petitions were distinctly different actions that

were prosecuted separately).

        Bivins’s first issue is overruled.

               EXCEEDING THE AUTHORITY OF TEXAS FAMILY CODE CHAPTER 9

        Bivins complains that the trial court exceeded its authority in enforcing the

Mediated Settlement Agreement (―MSA‖); that the Decree is incapable of enforcement;

that the court was without authority to clarify or modify its Decree; and that awarding

damages is an impermissible divesting of Bivins’s separate property.

Facts

        As recited above, the provision of the Decree that is the focus of this litigation is

as follows:

        Larry Don Bivins is ORDERED to vacate the premises at 1100 FM 983,
        Ferris, Texas, on or before April 1, 2006, and represents that all
        improvements are in workmanlike state of repair at the time of signing
        this Decree, and will be of same or better repair on date of delivery.


In the Matter of the Marriage of Bivins                                                Page 5
        Ultimately, the trial court ordered Bivins to vacate the property on August 18,

2006. The property was vacated by Bivins as ordered. The testimony and exhibits

indicated that when Martinez took possession the next day, there was trash in the house

(four dumpsters full); sewage backed up in the garbage disposal and in the dishwasher

from the septic tank overflow; an icemaker was removed allowing the water line to leak

over the floor causing mildew and warping the floor; water stains on the ceilings on the

first and second floors; tubs and sinks so poorly cared for they had to be replaced; stairs

and porches that were unusable; rotting wood and peeling paint on the house, gazebo,

and barn; fret work on the front porch that could not be replaced and missing doors;

carpet that had to be replaced after attempts to clean it were unsuccessful; a front

driveway with holes so numerous and large that a separate path had been created to

reach the house; dented siding on the barn; telephone units pulled from the walls; and

other damages too numerous to detail every item.

        Martinez testified that ―[the house] wasn’t like that when I left.‖ This testimony

by her was not refuted.

        The trial court entered Findings of Fact and Conclusions of Law which in

relevant part are as follows:

                                             …

        2.   The Court finds that the parties entered into a Mediated Settlement
        Agreement on the first day of February, 2006 which provides as follows:

             …all improvements are in a workmanlike state of repair at time of
             signing and will be of same or better repair on the date of delivery
             – signed by Larry Don Bivins, Petitioner.

        3.    The terms of the Decree of Divorce between Plaintiff and
        Defendant provides as follows:

In the Matter of the Marriage of Bivins                                              Page 6
             Larry Don Bivins is ordered to vacate the premise [sic] at 1100 FM
             983, Ferris, Texas, on or before April 1, 2006 and represents that all
             improvements are in workmanlike state of repair at the time of
             signing this Decree and will be of same or better repair on date of
             delivery.
                                               …

        6.     The Court further finds and concludes that under the provision of
        the Family Code, Section 9.010, the court has the power to award a
        judgment to enforce its decree in the event delivery of property is no
        longer an adequate remedy.
                                           …

        7.   The Court finds that Defendant failed to deliver the property in a
        workman-like state of repair to the Plaintiff as Defendant had agreed to
        do.

        8.     The Court further finds that delivery of property is no longer an
        adequate remedy and renders [sic] money judgment for the damages
        sustained by the Plaintiff.
                                           …

        15.   The Court finds that the Mediated Settlement Agreement should be
        enforced.

Holding

        In Ex parte Gorena, 595 S.W.2d 841, 844 (Tex. 1979), the Supreme Court held that

once an agreement of the parties is incorporated into the decree it is not merely a

contract but is the judgment of the court. This appeal is distinguishable from Gorena

since the Bivins/Martinez Decree was not signed by the parties and would be

unenforceable as a contract. ―Despite the fact that a judgment has its genesis in an

agreement between the parties, the judgment itself has an independent status.‖ Id.

Martinez did not seek to have the Decree enforced as a contract.              It is, however,

enforceable as the judgment of the court.

        The trial court, however, found that the MSA should be enforced. Findings of

In the Matter of the Marriage of Bivins                                                Page 7
Fact in a bench trial have the same force as a jury’s answers to questions in a jury trial.

They are reviewed for factual and legal sufficiency by the same standards. Ortiz v.

Jones, 917 S.W.2d 770, 772 (Tex. 1996) (factual sufficiency); Anderson v. Seven Points, 806

S.W.2d 791, 794 (Tex. 1991) (legal and factual sufficiency). A complete reporter’s record

was part of the record reviewed by this Court. Therefore, findings by the trial court are

not conclusive. Tierra Sol Joint Venture v. City of El Paso, 311 S.W.3d 492, 498 (Tex.

App.—El Paso 2009, no pet.). The trial court had within its power the ability to enforce

its judgment and did so.

        Bivins, on appeal, asserts that he repudiated the MSA and, therefore, it cannot be

enforced. Bivins did not appeal any denial of his repudiation after the trial court’s

incorporation of the MSA into the Divorce Decree which was entered on August 4, 2006.

Repudiation cannot be raised for the first time in this appeal. TEX. R. APP. P. 33.1; see

Milner v. Milner, 361 S.W.3d 615, 618-619 (Tex. 2012).

        Bivins also complains that the Decree cannot be modified or clarified and that the

―representation‖ is incapable of enforcement.            The trial court neither modified nor

clarified this paragraph of the decree by its decision. Martinez asked for and was

awarded monetary damages. ―We look to the substance of a plea for relief to determine

the nature of the pleading, not merely at the form of title given to it.‖ State Bar of Texas

v. Heard, 603 S.W.2d 829, 833 (Tex. 1980); TEX. R. CIV. P. 71.

        The trial court properly applied Texas Family Code section 9.010 to this situation

and heard evidence as to why enforcement of the Decree was no longer an adequate

remedy indicating that an award of damages was the appropriate remedy. These facts

are a classic reason for the creation of this statute.

In the Matter of the Marriage of Bivins                                                Page 8
        Bivins offers no case law in support of his position that the court abused its

discretion in awarding damages.

        Bivins would urge this Court to hold that the trial court divested him of separate

property to pay these damages. A claim for separate property usually arises when

there is a dispute over characterization. The property awarded to each of these parties

in the Decree became their separate property when the divorce was final. It then

became subject to whatever debts each incurred afterwards.                His assertion is

implausible.

        Bivins’s second issue is overruled.

             MEASURE OF DAMAGES USING NON-SCIENTIFIC EXPERT TESTIMONY

        Bivins’s next three issues will be dealt with together since they relate to damages,

Martinez’s experts’s interpretation of the phrase ―workmanlike state of repair,‖ and the

sufficiency of the evidence.

Facts

        In her Third Amended Original Petition for Damages and Enforcement, Martinez

asserted damages of $107,198.14. Martinez testified that when she took possession of

the house, she and others took pictures. She testified that she paid $88,682.10 for the

repairs.    The testimony consisted of payments for repairs to the items mentioned

previously and many others. There was also testimony that would not have been

associated with the repair of the house, i.e. replacement of slashed tires on the tractor

and veterinarian bills for a sick dog; that the agriculture exemption had been lost

thereby increasing taxes owed by Martinez; that numerous items of personal property

awarded to Martinez were missing; that insurance proceeds had paid for some repairs;

In the Matter of the Marriage of Bivins                                               Page 9
and that some repairs were upgrades. After hearing from the witnesses, the trial court

ordered Bivins to pay $48,305.42.

        Martinez proffered the testimony of three individuals as experts: William

Robertson (―Robertson‖) and John Foster (―Foster‖) – building contractors, and Patrick

Barrientez (―Barrientez‖) – fencing contractor.     Robertson and Foster had been

residential contractors for over 10 years. Barrientez had been building fences for over

15 years.

        Robertson testified about the condition of the property when Martinez took

possession, the repairs needed to make the house livable, and the reasonableness of the

invoices for the work done. He did not testify about the completed repairs. His

testimony was not refuted.

        Foster opined on his inspection of the property after repairs were completed.

During this inspection, he reviewed Martinez’s invoices.       He also compared the

completed repairs to photos taken by Martinez of the condition of the home before the

repairs were started. As they walked through the house, he examined and tested the

new equipment and its installation. He related that there were certain items he did not

test such as phones and the roof. He reported that certain repairs were unfinished.

Over the objections of Bivins’s attorney, he testified in laborious detail of specific

repairs that he observed comparing the work which had been completed at the time of

his inspection to the pictures taken by Martinez and the invoices. He repeatedly stated

that the repairs which he observed had been done correctly. When asked by Bivins’s

attorney his interpretation of ―workmanlike condition,‖ Foster stated, ―…it is in a

working condition.‖ His testimony was uncontroverted.

In the Matter of the Marriage of Bivins                                         Page 10
        Barrientez testified about the perimeter fence and pens at the barn – before and

after repairs. Bivins objected to Barrientez testifying about the ―workmanlike state of

repair‖ and the work he performed. Barrientez related that

               …(the fence) was broken up. The whole fence was broken; fence
        posts bent over; H-poles pulled up out of the corners…The external pen
        the barn where the chutes and all that were, it was – like I say, the pipe
        was rusted out. The weeds were overgrown in the barn…the dirt had
        settled so much that the concrete was exposed. So there was no – nothing
        holding the structure together outside of that. All that had to come out.
        And the pipe was replaced, and chutes were put back in.

When asked by Bivins’s attorney the meaning of ―workmanlike state of repair‖ he

replied, ―I would think that it would be something that’s within working order.‖

Holding

        The proper measure of damages is the cost of repairs. Pasadena State Bank v. Isaac,

288 S.W.2d 127, 128-129 (Tex. 1950); Z.A.O., Inc. v. Yarbrough Drive Ctr. Joint Venture, 50

S.W.3d 531, 545-546 (Tex. App.—El Paso 2001, no pet.); Nielson v. Okies, 503 S.W.2d 614,

616 (Tex. Civ. App.—El Paso 1973, no writ); Hill & Hill Truck Line, Inc. v. Powell, 319

S.W.2d 128, 133 (Tex. Civ. App.—Waco 1958, no writ).

        None of these men had formal education in their areas of expertise. The trial

court properly determined that these witnesses were qualified to testify in the areas for

which their testimony was offered. They did not need college degrees to be qualified.

TEX. R. EVID. 702; Glasscock v. Income Property Services, Inc., 888 S.W.2d 176, 180 (Tex.

App.—Houston [1st Dist.] 1994, writ dism’d by agreement). See Page v. State Farm

Lloyds, 259 S.W.3d 257, 266-268 (Tex. App.—Waco 2008) rev’d on other grounds, 315

S.W.3d 525 (Tex. 2010).

        Were their opinions reliable?

In the Matter of the Marriage of Bivins                                              Page 11
        After reviewing invoices of the work, Robertson gave his opinion about the

fairness of the invoices and reasonableness of the costs of repair. He was not permitted

to testify about the actual repairs.      He was also not allowed to testify about an

examination of the property and repairs made immediately before his testimony since

the opinions were not disclosed. Over the objection of Bivins’s attorney, Robertson

testified that the work as invoiced was reasonable and that the work shown on the

invoices was necessary. These invoices had been produced in response to a Request for

Production. Over Bivins’s objection, the court admitted them. Experts are permitted to

use evidence that may otherwise be hearsay in rendering their opinions. In re Christus

Spohn Hosp. Kleberg, 222 S.W.3d 434, 440 (Tex. 2007).

        The trial court’s responsibility is to evaluate the facts against the opinions to

determine if there is a sufficient connection between the facts and the opinions, i.e. that

the opinions are reliable and relevant. TEX. R. EVID. 702; see Daubert v. Merrell Dow

Pharms., 509 U.S. 579, 590; 113 S. Ct. 2786; 125 L. Ed. 2d 469 (1993) (―Proposed testimony

must be supported by appropriate validation - i.e. 'good grounds,' based on what is

known.‖). "... [A] beekeeper need not have published his findings that bees take off into

the wind in a journal for peer review, or made an elaborate test of his hypotheses.

Observations of enough bees in various circumstances to show a pattern would be

enough to support his opinion. But there must be some basis for the opinion offered to

show its reliability. Experience alone may provide a sufficient basis for an expert's

testimony in some cases, but it cannot do so in every case." Gammill v. Jack Williams

Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex. 1998); see also In the Interest of D.S., 19 S.W.3d

525, 529 (Tex. App.—Fort Worth 2000, no pet.). This Court finds that the trial court

In the Matter of the Marriage of Bivins                                               Page 12
properly admitted the expert testimony.

        Once the court has determined the expert is properly qualified and the testimony

comports with Rule 702 and case law, the court must decide the weight to be given to

the opinion. See id. This Court will not invade the trial court’s decision regarding the

weight given an expert’s testimony unless there is a clear abuse of discretion. See E.I. du

Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995). This Court finds no

such abuse.

        Bivins also takes issue with Foster and Barrientez testifying about ―workmanlike

state of repair.‖

        With no cases construing this phrase in the context of the Family Code, the Court

looks to similar phrases in other areas of the law.

        Claims for breach of implied warranty use a comparable phrase ―to repair in a

good and workmanlike manner.‖             The Texas Supreme Court defined good and

workmanlike as ―that quality of work performed by one who has the knowledge,

training, or experience necessary for the successful practice of a trade or occupation and

performed in a manner generally considered proficient by those capable of judging such

work.‖ Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 354 (Tex. 1987). Thus, the

inquiry is into the performance of the service provider. Id. at 355. In this case it is

undisputed that Bivins in the MSA agreed ―that all improvements are in workmanlike

state of repair at the time of signing this Decree, and will be of the same or better repair

on date of delivery.‖ They were not.         Bivins’s attorney unsuccessfully questioned

several witnesses about when these damages occurred or the condition of the property

before the damage. All responses save one were, ―I don’t know.‖ Martinez alone

In the Matter of the Marriage of Bivins                                              Page 13
testified, ―[the house] wasn’t like that when I left.‖ Bivins chose not to testify or present

any expert testimony.

        Bivins’s third, fourth and fifth points of error relating to damages and expert

opinions are overruled.

                                          ATTORNEY FEES

        Bivins, by points of error six and seven, asserts that the trial court erred in not

limiting attorney fees and that they are not supported by the evidence.

Facts

        In response to Bivins’s Request for Disclosure, Martinez designated her attorney

as an expert on attorney’s fees. In response to Requests for Production, she objected to

producing records from her attorney, except her contract which was produced,

asserting attorney-client privilege. Bivins filed Special Exceptions to Martinez’s First

Amended Original Petition for Enforcement and for Damages requesting more specific

details on attorney fees.         It was denied.   No Motion to Compel or request for a

Protective Order was considered by the trial court addressing objections to attorney-

client privilege.

        Bivins objected at the trial to attorney testimony of time and fees which were

overruled. In response to an objection to a summary of costs not produced by Martinez,

the trial court properly refused to admit it. It was not produced in discovery.

        The trial court partially granted summary judgment, special exceptions, and

struck an expert based on motions filed by Bivins. Martinez’s attorney testified about

his hourly rate, the number of hours expended on the case, and the costs he had paid on

behalf of his client. He further testified about his legal experience, that the time was

In the Matter of the Marriage of Bivins                                               Page 14
necessary, and that the fees were reasonable in Ellis County. He testified that he had

$22,200 in fees and $1,891 in court costs. Martinez was awarded $20,000 as attorney

fees.

Holding

        Where there are objections to discovery, the party seeking discovery can either

file a Motion to Compel or seek a ruling on objections. TEX. R. CIV. P. 193.4(a) or

215.1(b). The requestor waives the failure to produce documents when there is no

ruling on the objections. Pace v. Jordan, 999 S.W.2d 615, 622 (Tex. App.—Houston [1st

Dist.] 1999, pet. denied).

        Bivins complains that Martinez did not refer to the relevant statute to recover

attorney fees. No Special Exception complained of any omission. It is waived in light

of Texas Family Code section 9.014 authorizing the award of attorney fees for suits to

enforce divorce decrees. TEX. FAM. CODE ANN. § 9.014 (West Supp. 2011).

        The party requesting attorney fees is required to exclude fees that are not earned

in pursuing the claims presented during trial of the case. Normally, ―…a claimant must

segregate recoverable from unrecoverable fees. [And]…it is only when discrete legal

services advance both a recoverable and unrecoverable claim that they are so

intertwined that they need not be segregated.‖ Tony Gullo Motors I, L.P. v. Chapa, 212

S.W.3d 299, 313-314 (Tex. 2006).

        We overrule Bivin’s issues on attorney fees.




In the Matter of the Marriage of Bivins                                            Page 15
                                             CONCLUSION

        Having found no reversible error, we affirm the judgment of the trial court.



                                                JANET LITTLEJOHN
                                                District Judge

Before Chief Justice Gray,
       Justice Davis, and
       Judge Littlejohn1
Affirmed
Opinion delivered and filed December 6, 2012
[CV06]




1  Janet Littlejohn, Judge of the 150th District Court of Bexar County, sitting by assignment of the Chief
Justice of the Texas Supreme Court pursuant to Section 74.003(h) of the Government Code. See TEX.
GOV’T CODE ANN. § 74.003(h) (West 2005).

In the Matter of the Marriage of Bivins                                                           Page 16
