Geary H. Lee v. Elizabeth Deanne Holoubek, F/K/A Elizabeth Deanne Lee ( 2015 )

ACCEPTED
06-15-00041-CV
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
11/17/2015 12:17:02 AM
DEBBIE AUTREY
CLERK
CASE NO. 06-15-0041-CV
IN THE COURT OF APPEALS FOR THE FILED IN
6th COURT OF APPEALS
SIXTH APPELLATE DISTRICT OF TEXAS TEXARKANA, TEXAS
AT TEXARKANA, TEXAS 11/17/2015 9:00:00 AM
DEBBIE AUTREY
Clerk
GEARY H. LEE, APPELLANT
VS.
ELIZABETH DEANNE HOLOUBEK, f/k/a ELIZABETH DEANNE LEE,
APPELLEE
Appeal from the County Court at Law of
Rusk County, Texas
Cause No. 2012-09-449 CCL
BRIEF OF APPELLANT
JOE SHUMATE
State Bar No. 18327500
JAMES J. ROSENTHAL
State Bar No. 24088801
107 North Main Street
P. O. Box 1915
Henderson, Texas 75653-1915
(903) 657-1416
(903) 655-8211
Attorney for Appellant
ORAL ARGUMENT REQUESTED
CERTIFICATE OF INTERESTED PARTIES
The undersigned counsel of record for Appellant certifies that the following
listed persons have an interest in the outcome of this case. These representations are
made so that this Court may evaluate possible disqualifications or recusal.
APPELLANT COUNSEL
Geary H. Lee, Appellant Joe Shumate (Lead Appellate Counsel)
State Bar No. 18327500
James J. Rosenthal (Counsel on the Brief)
State Bar No. 24088801
107 North Main Street
P. O. Box 1915
Henderson, Texas 75653
Tel: (903) 657-1416
Fax: (903) 655-8211
APPELLEE COUNSEL
Elizabeth Deanne Holubek Clay Wilder
State Bar No. 21462500
200 N. Main Street
Henderson, Texas 75652
Phone: (903) 657-0561
Fax: (903) 657-5088
TRIAL COURT JUDGE
Hon. Chad W. Dean
Rusk County Courthouse
115 North Main Street, Ste. 201
Henderson, Texas 75652
Tel: (903) 657-0344
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TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STANDARD OF REVIEW .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1. THE TRIAL COURT ERRED AS A MATTER OF LAW IN AWARDING APPELLEE
A CONTINGENT ATTORNEY FEE IN A DOMESTIC RELATIONS CASE.
2. THERE IS NO EVIDENCE, OR IN THE ALTERNATIVE, INSUFFICIENT
EVIDENCE, TO SUSTAIN THE TRIAL COURT’S FINDING THAT THE
ATTORNEY’S FEES AWARDED TO APPELLEE IN THE AMOUNT OF
$30,774.27 WERE REASONABLE AND NECESSARY.
3. THERE IS NO EVIDENCE, OR IN THE ALTERNATIVE, INSUFFICIENT
EVIDENCE, TO SUSTAIN THE TRIAL COURT’S FINDING THAT RETIREMENT
FUNDS AWARDABLE TO APPELLEE WOULD HAVE GROWN IN THE AMOUNT
OF $29,660.48 BETWEEN 2006 AND 2015.
4. THERE IS NO EVIDENCE, OR IN THE ALTERNATIVE, INSUFFICIENT
EVIDENCE, TO SUSTAIN THE TRIAL COURT’S FINDING THAT A
CONSTRUCTIVE TRUST (OR OTHER LIEN) SHOULD ATTACH TO THE
APPELLANT’S FUNDS ON DEPOSIT WITH EDWARD JONES.
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
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INDEX OF AUTHORITIES
Cases: Pages
Argonaut Ins. Co. v. ABC Steel Products,
582 S.W.2d 883 (Tex.Civ.App.—Texarkana 1979, writ ref'd n.r.e.). . . . . . . . . . . 27
Arthur Anderson & Co. v. Perry Equip. Corp.,
945 S.W.2d 812, 818 (Tex.1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27
Baker Botts, L.L.P. v. Cailloux, 224 S.W.3d 723, 736
(Tex.App.–San Antonio 2007, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Brent v. Field, 275 S.W.3d 611, 621 (Tex. App.-Amarillo 2008, no pet.) .. . . 5, 20
Brockie v. Webb, 244 S.W.3d 905, 909 -910 (Tex.App.–Dallas,2008) . . . . . . . . . 5
Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health and Human Res.,
532 U.S. 598, 602, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001) . . . . . . . . . . . . . . 21
Burnside Air Conditioning v. T.S. Young, 113 S.W.3d 889, 897–98
(Tex.App.-Dallas 2003, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27
Castle Texas Prod. Ltd. P'ship v. Long Trusts,
134 S.W.3d 267, 278-79 (Tex. App.—Tyler 2003, pet. denied). . . . . . . . . . . . . . 27
Day v. Day, 603 S.W.2d 213, 215 (Tex., 1980) .. . . . . . . . . . . . . . . . . . . . . . . . . . 24
Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 139 (Tex.1977) . . . . . . . . . . . . . . . . . 2
Giles v. Cardenas, 697 S.W.2d 422, 429-430 (Tex.App. 4 Dist.,1985). . . . . . . . . 25
Hays & Martin, L.L.P. v. Ubinas–Brache, M.D.,
192 S.W.3d 631, 636 (Tex.App.-Dallas 2006, pet. denied) .. . . . . . . . . . . . . . . . . 27
Huie v. DeShazo, 922 S.W.2d 920, 927–28 (Tex.1996). . . . . . . . . . . . . . . . . . . . . 2
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In re Wells, 294 Fed. Appx. 841, 845 (5th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . 25
Kostelnik v. Roberts, 680 S.W.2d 532, 534
(Tex. App.—Corpus Christi 1984), writ refused NRE (Jan. 16, 1985) .. . . . . . . . 34
Landram v. Robertson, 195 S.W.2d 170, 174
(Tex. Civ. App.—San Antonio 1946), writ refused NRE. .. . . . . . . . . . . . . . . . . . 34
Material P'ships, Inc. v. Ventura, 102 S.W.3d 252, 257
(Tex.App.– Houston [14th Dist.] 2003, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . 3
Merrell Dow Pharmaceuticals, Inc. v. Havner,
953 S.W.2d 706, 711, 40 Tex. Sup. Ct. J. 846 (Tex. 1997). . . . . . . . . . . . . . . . . . . 3
Murff v. Murff, 615 S.W.2d 696 (Tex. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Patel v. Kuciemba, 82 S.W.3d 589, 594
(Tex. App.—Corpus Christi 2002, pet. denied) .. . . . . . . . . . . . . . . . . . . . . . . . . . 31
Plas-Tex, Inc. v. U.S. Steel Corp.,
772 S.W.2d 442, 445, 32 Tex. Sup. Ct. J. 329 (Tex. 1989). . . . . . . . . . . . . . . . . . . 3
Pool v. Ford Motor Co.,
715 S.W.2d 629, 635, 29 Tex. Sup. Ct. J. 301 (Tex. 1986). . . . . . . . . . . . . . . . . . . 4
Rankin v. Naftalis, 557 S.W.2d 940, 944 (Tex. 1977). . . . . . . . . . . . . . . . . . . . . . 34
Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex.1998) . . . . . . . . . . . . . . . . . . . . 2
Sherrick v. Wyland, 14 Tex. Civ. App. 299,
37 S.W. 345, 345 (Tex. Civ. App. 1896) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Smith v. Smith, 22 S.W.3d 140, 143–44
(Tex.App.-Houston [14th Dist.] 2000, no pet.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Southland Life Ins. Co. v. Norton, 5 S.W.2d 767
(Tex.Comm'n App.1928, holding approved). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
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Tate v. Tate, 55 S.W.3d 1, 5-6 (Tex.App.– El Paso 2000, no pet.) . . . . . . . . . . . . . 2
Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310-11 (Tex. 2006) .. . . . 20
Wal–Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex.2003). . . . . . . . . . . . . 3
Wittau v. Storie, 145 S.W.3d 732, 735
(Tex. App.—Fort Worth 2004, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24-25
Wm. Cameron & Co. v. Am. Sur. Co. of N.Y.,
55 S.W.2d 1032, 1035 (Tex. Comm'n App. 1932, judgm't adopted) . . . . . . . . . . 20
Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). . . . . . . . . . . . . . . . . . . . . . 2
Wuagneux Builders, Inc. v. Candlewood Builders, Inc.,
651 S.W.2d 919, 922 -923 (Tex.App. 2 Dist.,1983) . . . . . . . . . . . . . . . . . . . . . . . 27
Statutes and Rules: Pages
1. TX ST RPC Rule 1.04.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22
2. TX R EVID Rule 801. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
3. TX R EVID Rule 802. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
4. TX R EVID Rule 803(17). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
5. Family Code § 9.205. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
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STATEMENT OF THE CASE
This is an appeal from a Judgment entered upon Petitioner’s Fourth Amended
Petition for Division of Property Not Divided on Divorce, entered on May 14, 2015,
by the County Court at Law of Rusk County, Texas, the Honorable Chad W. Dean,
presiding. 1 CR 41-42. Petitioner/Appellee originally filed this instant underlying
action on or about September 13, 2012. 1 CR 5-13. Trial was conducted on April 30,
2015. 1 CR 41; 1 RR 1. The trial court made its Findings of Fact and Conclusions
of Law in response to Respondent/Appellant’s request on or about July 7, 2015.
Respondent/Appellant, Geary H. Lee, commenced this appeal by notice filed on July
24, 2015.
For consistency and ease, the Reporter’s Record will be cited as “[Vol #] RR
[Page #s]:[Line #s],” and the Clerk’s Record will be cited as “[Vol #] CR [Page
#s]:[Line #s].” The Clerk’s Record under the instant action– Rusk County Court at
Law Cause No. 2012-09-449CCL– contains only the recent post-decree petition. For
this reason, Appellant has requested the record be supplemented with the original
divorce and post-decree petition filed under Rusk County Court at Law Cause No. 88-
05-260CCL. The Supplemental Clerk’s Record will be cited as “[Vol #] Supp. CR
[Page #s]:[Line #s].”
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STANDARD OF REVIEW
The standard of review for property division issues in family law cases is
generally abuse of discretion. A trial court has broad discretion in dividing the
“estate of the parties,” but must confine itself to community property. Eggemeyer v.
Eggemeyer, 554 S.W.2d 137, 139 (Tex.1977).
The trial court’s discretion to divide marital property upon divorce should be
corrected on appeal only when an abuse of discretion has been shown. Murff v.
Murff, 615 S.W.2d 696 (Tex. 1981); Schlueter v. Schlueter, 975 S.W.2d 584, 589
(Tex.1998). A trial court abuses its discretion when it acts without reference to any
guiding principles or acts in an arbitrary or unreasonable manner. Worford v.
Stamper, 801 S.W.2d 108, 109 (Tex.1990). To determine whether the trial court
abused its discretion in its property division incident to divorce, the court should
engage in a two-pronged inquiry: (1) Did the trial court have sufficient information
upon which to exercise its discretion; and (2) Did the trial court err in its application
of discretion? See Tate v. Tate, 55 S.W.3d 1, 5-6 (Tex.App.– El Paso 2000, no pet.).
The trial court has no discretion in making a determination of law or in the
application of the law. Consequently, the trial court’s erroneous legal conclusion,
even in an unsettled area of the law, is an abuse of discretion. Huie v. DeShazo, 922
S.W.2d 920, 927–28 (Tex.1996). The appellate court should review the trial court’s
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conclusions of law de novo. Smith v. Smith, 22 S.W.3d 140, 143–44
(Tex.App.-Houston [14th Dist.] 2000, no pet.). The standard of review for
conclusions of law is whether they are correct. Material P’ships, Inc. v. Ventura, 102
S.W.3d 252, 257 (Tex.App.– Houston [14th Dist.] 2003, pet. denied).
In reviewing a legal sufficiency or no-evidence point of error, an appellate
court must consider only the evidence and inferences tending to support the trial
court's finding and disregard all contrary evidence and inferences. See Wal–Mart
Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex.2003). An appellate court should
sustain a “no evidence” point when the record discloses one of the following: (a)
there is a complete absence of evidence of a vital fact, (b) the court is barred by rules
of law or evidence from giving weight to the only evidence offered to prove a vital
fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla of
evidence, or (d) the evidence establishes conclusively the opposite of a vital fact. See
Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711, 40 Tex. Sup.
Ct. J. 846 (Tex. 1997).
When conducting a factual sufficiency review, an appellate court must consider
all of the evidence, including any evidence contrary to the verdict. Plas-Tex, Inc. v.
U.S. Steel Corp., 772 S.W.2d 442, 445, 32 Tex. Sup. Ct. J. 329 (Tex. 1989).
Furthermore, an appellate court must reverse on the basis of factual insufficiency if
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the trial court’s finding is so against the great weight and preponderance as to be
manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635, 29 Tex. Sup. Ct.
J. 301 (Tex. 1986).
Whether attorney’s fees are awardable is generally a question of law subject to
de novo review. Brent v. Field, 275 S.W.3d 611, 621 (Tex. App.-Amarillo 2008, no
pet.) (citing Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94, 95 (Tex. 1999)).
Whether the amount of attorney’s fees awarded is appropriate is generally reviewed
under the abuse of discretion standard. Brockie v. Webb, 244 S.W.3d 905, 909 -910
(Tex.App.–Dallas,2008)
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ISSUES PRESENTED
1. THE TRIAL COURT ERRED AS A MATTER OF LAW IN AWARDING
APPELLEE A CONTINGENT ATTORNEY FEE IN A DOMESTIC
RELATIONS MATTER.
2. THERE IS NO EVIDENCE, OR IN THE ALTERNATIVE, INSUFFICIENT
EVIDENCE, TO SUSTAIN THE TRIAL COURT’S FINDING THAT THE
ATTORNEY’S FEES AWARDED TO APPELLEE IN THE AMOUNT OF
$30,774.27 WERE REASONABLE AND NECESSARY.
3. THERE IS NO EVIDENCE, OR IN THE ALTERNATIVE, INSUFFICIENT
EVIDENCE, TO SUSTAIN THE TRIAL COURT’S FINDING THAT
RETIREMENT FUNDS AWARDABLE TO APPELLEE WOULD HAVE
GROWN IN THE AMOUNT OF $29,660.48 BETWEEN 2006 AND 2015.
4. THERE IS NO EVIDENCE, OR IN THE ALTERNATIVE, INSUFFICIENT
EVIDENCE, TO SUSTAIN THE TRIAL COURT’S FINDING THAT A
CONSTRUCTIVE TRUST (OR OTHER LIEN) SHOULD ATTACH TO THE
APPELLANT’S FUNDS ON DEPOSIT WITH EDWARD JONES.
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STATEMENT OF FACTS
PROCEDURAL HISTORY AND BACKGROUND– CAUSE NO. 88-05-260-CCL:
1. Geary H. Lee and Elizabeth D. Holoubek (f/n/a “Lee”) were married on
or about April 6, 1974, and ceased to live together as husband and wife on or about
May 11, 1988. 1 Supp. CR 4-6.
2. Geary H. Lee originally filed for divorce on or about May 31, 1988 in
the Rusk County, Texas County Court at Law, under Cause No. 88-05-260-CCL1. 1
Supp. CR 4-6.
3. The original Decree of Divorce was entered by then presiding Judge
Darrell Hyatt, on August 3, 1988, following an apparent uncontested hearing on or
about August 1, 1988. 1 Supp. CR 7-13.
4. On or about December 4, 1992, Appellee, Elizabeth Holoubek, filed a
Motion for Division of Property Not Divided on Divorce, by and through her attorney
Clay Wilder, seeking a post-decree division of Appellant’s retirement benefits from
Texas Eastman Company. 1 Supp. CR 14-23.
1
This cause number controlled the action until Appellee filed a Petition for Division of
Property Not Divided on Divorce on or about September 13, 2012 under a new cause number.
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5. The trial court took testimony and argument in a hearing on or about
October 12, 1993. The court designated this as a “Clarification and modification”
hearing in its docket. 1 Supp. CR 32.
6. After allowing the parties time to brief the subject, the trial court entered
the following handwritten memorandum in its docket on October 25, 1993: “Ct ruled.
Mr. Lee award 65% of retirement + Mrs. Lee awarded $35%.” 1 Supp. CR 33; 1 RR
25:7-15.
7. No final order or judgment having been prepared, the post-decree
clarification and division then moved by Appellee was set for dismissal docket for
failure to prosecute on June 14, 1995. 1 Supp. CR 28, 33; 1 RR 25:16-21.
8. On or about November 25, 1997, the matter was again ordered to be set
on the dismissal docket on December 5, 1997. 1 Supp. CR 29, 33; 1 RR 25:22-25.
9. On or about December 15, 1997, the matter was ordered dismissed for
want of prosecution. 1 Supp. CR 30, 33; 1 RR 26:1-4.
10. Appellant went to work for Texas Eastman on or about August 6, 1973,
participating in the Eastman Retirement Assistance Plan Pre ‘98 from 1973 until
2006– roughly thirty-two and one half years. 1 RR 41:22–42:4; 1 RR 45:5-7; 1 RR
61:9–62:7. Between 1973 and Appellant’s retirement on or about February 1, 2006,
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the total value of the retirement account was $306,306.00. 1 RR 41:13–44:20; 1 RR
54:21–55:8; 1 RR 69:20–70:1.
FACTS RELATING TO THE INSTANT ACTION– CAUSE NO. 2012-09-449CCL:
11. On or about September 13, 2012– almost twenty years after the first
motion to divide was filed– Appellee filed a Petition for Division of Property Not
Divided on Divorce– this time under Cause No. 2012-09-449CCL. 1 CR 5-12.
12. After several revisions, Appellee landed on her Fourth Amended Petition
for Division of Property Not Divided on Divorce on or about April 26, 2015. 1 CR
32-36.
13. Therein, Appellee explained that this action was a continuation of the
prior post-decree division ruling in October 1993 which awarded Appellee a 35%
interest in Appellant’s retirement benefits during the marriage. 1 CR 32.
14. Appellee alleged that Appellant had retired in or about February 2006,
withdrawn the funds from the retirement plan, and attempted to interfere with
Appellee’s access to the funds thereafter. 1 CR 32-33.
15. The cause was set and heard, over the Appellant’s request for a
continuance, on or about April 30, 2015. 1 CR 37-40.
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THE JUDGMENT
16. Judgment in favor of the Appellee, Elizabeth Holoubek was entered of
record on or about May 14, 2015. 1 CR 41-42.
17. In pertinent part, the judgment awarded Appellee lump sum damages of
$75,935.68, and an additional award of $30,774.27 for Appellee’s attorney fees. 1
CR 41.
18. The trial court further impressed a lien upon “those accounts standing
in the name of GEARY H. LEE, Respondent, at Edward Jones Investments to secure
payment of those amount ordered herein.” 1 CR 42.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
19. The following Findings of Fact were entered and approved by the trial
court:
“1. Petitioner [Appellee] was entitled to thirty-five percent (35%) of
Respondent’s [Appellant’s] employment/retirement benefits
accumulated during their marriage.
2. Respondent [Appellant] retired from said employment on February 1,
2006 and completely withdrew one hundred percent (100%) of all said
employment/retirement benefits, including those belonging to Petitioner.
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3. Respondent [Appellant] would not deliver Petitioner [Appellee] her
share of the asset, despite her demands for payment and held it without
authority.
4. When Respondent [Appellant] retired and withdrew the accounts,
Petitioner’s [Appellee’s] portion thereof was $47,275.20.
5. The reasonable rate of return for the nine (9) years that Respondent
[Appellant] held Petitioner’s [Appellee’s] money was 5.6% per year,
which produced additional damage to her of $29,660.48.
6. Petitioner incurred reasonable and necessary attorney’s fees in
connection with recovering her property.” 1 CR 58.
20. The following Conclusions of Law were entered and approved by the
trial court:
“1. Petitioner [Appellee] is entitled to recover of and from the Respondent
[Appellant] the sum of $76,935.68.
2. Counsel for Petitioner [Appellee] is entitled to recover the sum of
$30,774.27 for reasonable attorney’s fees, said amount payable to the
attorney.
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3. The indebtedness of Respondent [Appellant] to Petitioner [Appellee]
shall bear interest at the rate of six percent (6%) from May 14, 2015, the
date of the entry of the Judgment, until paid.
4. Payment of the amounts ordered herein are secured by a lien against all
accounts standing in the name of Respondent [Appellant] at Edward
Jones Investments.” 1 CR 59.
PERTINENT TESTIMONY AND EVIDENCE ADDUCED AT TRIAL
21. Appellee retained Attorney Clay Wilder to represent her in the
underlying action on a contingency fee arrangement. 1 RR 12.
22. The retainer contract at issue was entered into on or about March 26,
2013 and purports to entitle Attorney Clay Wilder to a forty percent (40%) attorney
fee on “any and all recovery obtained for Client.” 2 RR 671 (Plaintiff’s Exhibit No.
9).
23. Appellee and her attorney testified that they understood a forty percent
(40%) contingency fee to be a standard contingency fee amount for the recovery of
money in litigation in East Texas. 1 RR 12; 1 RR 80:16-25.
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24. Appellee and her attorney testified that they believed Appellee would
have been unable to retain Attorney Clay Wilder on an hourly basis to represent her
interests in the underlying matter. 1 RR 13:2-17; 1 RR 80:4-15.
25. After discussing the fact that her prior efforts to obtain a post-decree
division of Appellant’s retirement benefits in 1993 had been dismissed for want of
prosecution, Appellee admitted that she did not ask Appellant to protect her interest
in the retirement account in any manner. 1 RR 26:22–27:11.
26. Appellee never asked Appellant to protect her interest in the retirement
account. Nor did she ask him to pay over her interest in the retirement account after
the divorce.2 1 RR 27:16-20.
27. When questioned, Appellee could identify no instance of Appellant
being “anything but cooperative” with her attempts to clarify and recover her spousal
interest in his retirement account. 1 RR 28:4–29:10.
28. As of the date of the trial of the underlying matter on April 30, 2015,
Appellee could not identify how much of Appellant’s retirement account she was
entitled to, despite conferring with counsel and an accountant. 1 RR 29:11–30:14.
29. Appellant had one year of employment in at Eastman Texas in
Longview, Texas when the parties were married, fourteen years of employment at
2
This admission is directly contrary to Finding of Fact No. 3. 1 CR 58.
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Eastman Texas during the marriage (1974-1988), and another eighteen years of
employment at Eastman Texas following the divorce. 1 RR 30:15–32:2. Altogether,
Appellant worked for Texas Eastman about thirty-two and one half years. 1 RR
61:7–62: 7.
30. Because Appellee failed to segregate her portion of the retirement funds
before Appellant retired in 2006, the parties could not ascertain what her share of the
retirement funds was pursuant to the trial court’s 1993 ruling without coming back
to court. 1 RR 35:20–36:6.
31. Appellant testified that, of the rollover amount deposited with Smith
Barney after his retirement in 2006, $306,306 was directly traceable to his employee
retirement plan at Texas Eastman. The other $97,400 rolled over into the Smith
Barney account was from the Eastman Investment Plan ESOP; a separate retirement
saving account which was begun after the parties divorce in 1988. 1 RR
41:13–44:20; 1 RR 54:21–55:8.
32. Appellant admits that Appellee is entitled to a thirty-five percent
fractional share of his Eastman Retirement Assistance Plan Pre ‘98 during the
marriage, which lasted for fourteen of the thirty-two and one half years that he
worked for Texas Eastman– to-wit: a thirty-five percent share of forty-four percent
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of the total amount of the funds rolled over following his retirement in 2006, or
approximately $45,000. 1 RR 61:9–63:8.
33. Petitioner’s [Appellee’s] trial Exhibit No. 4 summarizes the dates of
marriage, dates of employment, and retirement contributions used to calculate the
$47,275.20 judgment entered in Appellee’s favor. 2 RR 640 (Marked Plaintiff’s
Exhibit No. 4)
34. Appellee introduced “Plaintiff’s Exhibit No. 6” at trial– a document
purporting to be a market report and commercial publication relevant “to address the
need to compound this base number [with interest] and go forward.” Appellant
objected on the ground of hearsay, and was overruled. 1 RR 72:10–73:14
35. Appellee deduced from “Plaintiff’s Exhibit No. 6” at trial that retirement
funds “properly invested” over the period of time between Appellant’s retirement on
February 1, 2006 and the first quarter of 2015 would have earned 5.56 percent. 1 RR
73:15-22.
36. Utilizing the 5.56% growth rate, Appellee introduced a summary exhibit
purporting to show a total nine year compounded interest amount on the base rate of
$29,660.48. 1 RR 73:23–74:8; 2 RR 659-664 (Marked as “Plaintiff’s Exhibit No. 7”)
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36. Appellee’s Attorney, the Honorable Clay Wilder (“Wilder”), testified in
support of the award of attorney fees against Appellant as costs. 1 RR 77:1– 93:6.
Mr. Wilder testified substantially as follows:
A. That he has been a licensed Texas attorney for thirty years, is
experienced and familiar with the type of work he performed on behalf
of Appellee, and is familiar with the types of fees that are charged for
this type of work. 1 RR 77:1-15.
B. The final hearing on this matter before the trial court took approximately
an hour and a half. 1 RR 77:21-23.
C. The presentation of this matter before the court “required a great deal of
work, a great deal of effort on my part, on my office’s part, and on my
staff’s part.” 1 RR 77:24-25.
D. That but for Appellee hiring an attorney to intervene, she would never
have recovered her share of the retirement fund. 1 RR 78:1-15.
E. That records were subpoenaed and obtained from Edward Jones in St.
Louis, Missouri and Raymond James at a cost of $300. 1
RR78:20–79:18.
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F. That “multiple hour of effort”... “a great amount of time,” was required
to do the work necessary to get the case ready for trial. 1 RR
79:20–80:3.
G. That “there are very standard and acceptable contingent fee rates in East
Texas to recover sums of money in litigation is 40 percent.” 1 RR
80:16-25.
H. That Wilder entered a contingent representation contract in this matter
with Appellee because at his going standard rate of $200 an hour,
“would have exceeded greatly what we believe is the appropriate
amount in relation to her claim.” 1 RR 80:4-7
I. That Wilder incurred $1,220.74 in litigation expenses. 1 RR 83:13-17.
J. That attorney’s fees may be awarded in a post-decree division of
property pursuant to Texas Family Code 9.205.
37. On cross-examination, Wilder testified that he previously represented
Appellee in the post-decree Motion to Divide Property Not Divided in Divorce in
1993, when the trial court awarded Appellee thirty-five percent of Appellant’s
retirement fund. 1 RR 84:12-16.
38. Wilder further testified that Appellee was aware that she was awarded
a portion of the Appellant’s retirement account at that time. 1 RR 84:1-8
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39. Wilder further testified that the prior action was dismissed for want of
prosecution in 1993 and had no explanation for the dismissal except what appeared
in the docket. 1 RR 84:12–85:5.
40. Wilder agreed that “that if a proper qualified domestic relations order
had been prepared subsequent to the hearing in October 1993, that that would have
disposed of all of these issues and we wouldn’t be here today.” 1 RR 85:9-14.
41. The trial court orally found and ruled during the hearing as follows:
A. There was $306,306.00 in the retirement account when Appellant
retired. 1 RR 93:16-18.
B. “that it was necessary that Appellee have to employ an attorney to sort
it all out... so I’m going to award the attorney’s fees. 1 RR 94:12-17.
C. That, “based on the circumstances in this case, and other factors required
under the Anderson matter, as well as Section 9.205 of the Family
Code,” attorney’s fees of forty percent are justified. 1 RR 94:18-22.
D. That judgment in favor of Appellee for $76,935.68, which are traceable
to an Edward Jones’ account upon which Appellee is granted a lien. 1
RR 94:23–95:2.
E. That an award of attorney fees in the amount of $30,774.27, enforceable
directly by the attorney is appropriate. 1 RR 95:2-5.
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SUMMARY OF THE ARGUMENT
Appellant asserts several arguments in opposition to award of contingent
attorney fees in the amount of $30,774.27 herein. As an overriding matter, Appellant
believes that the trial court lacked the authority to enter the award of contingent
attorney fees as a matter of law for three reasons. First, because such fees are
generally not awardable in family law cases. Second, Appellee’s petition was a post-
decree petition for division of undivided property– subject to the attorney’s fee
provisions of Family Code § 9.205– in name only, because, the property had in fact
already been divided in 1993. And, third, because further action seeking an award
of attorney fees for the post-decree division of undivided property was barred by res
judicata. Moreover, from an equitable perspective, the Appellee’s cause of action to
identify and encumber funds attributable to the 1993 order of division was only
necessary because of Appellee’s severe neglect of her own legal interests. Had
Appellee not waited almost twenty years to attempt to enter a qualified domestic
relations order or otherwise protect her share of the retirement funds, this suit would
have been unnecessary.
Furthermore, Appellant asserts that Appellee failed to present sufficient
evidence in support of the contingent attorney fee as reasonable and necessary.
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Appellant does not appeal the trial court’s findings or conclusions in relation
to the establishment of the amount awardable to the Appellee from Appellant’s
retirement account. Appellant does, however, appeal the finding that Appellee’s
share of the retirement account would have experienced compound growth of 5.56%
per year for the nine years after Appellant retired until Appellee sought to claim her
share of the funds. Such a finding could only be based upon conclusions which were
either not in evidence, or not supported by admissible evidence. In particular,
Appellant argues that the trial court erred in admitting an alleged “market
report/commercial publication” which purported to establish the growth rate of the
fund in the abstract, in the absence of expert testimony to qualify the material under
the hearsay exception.
Finally, the Appellant asserts, that even should the judgment be upheld in all
other respects, there is no basis in equity to impose a constructive trust upon
Appellant’s Edward Jones account simply because the funds are traceable to the
account. There being no pre-existing fiduciary duty or special relationship imposing
an obligation upon the Appellant to safeguard the Appellee’s funds– as could have
existed by reason of an order from the court had the Appellee not abandoned the 1993
action– there was no lawful basis for imposing such a special remedy.
-19-
ARGUMENT AND AUTHORITIES
ISSUES PRESENTED
1. THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING
APPELLEE A CONTINGENT ATTORNEY FEE IN A DOMESTIC
RELATIONS MATTER.
Whether a party may recover reasonable attorney's fees is a question of law for
the trial court which appellate courts review de novo. Brent v. Field, 275 S.W.3d 611,
621 (Tex. App.-Amarillo 2008, no pet.) (citing Holland v. Wal-Mart Stores, Inc., 1
S.W.3d 91, 94, 95 (Tex. 1999)). It has long been the rule in Texas that attorney's fees
paid to prosecute or defend a lawsuit cannot be recovered in that suit absent a statute
or contract that allows for their recovery. See Tony Gullo Motors I, L.P. v. Chapa,
212 S.W.3d 299, 310-11 (Tex. 2006) ("Absent a contract or statute, trial courts do not
have inherent authority to require a losing party to pay the prevailing party's fees.");
Wm. Cameron & Co. v. Am. Sur. Co. of N.Y., 55 S.W.2d 1032, 1035 (Tex. Comm'n
App. 1932, judgm't adopted) ("It is settled law in this state that, unless provided for
by statute or by contract between the parties, attorneys' fees incurred by a party to
litigation are not recoverable against his adversary either in an action in tort or a suit
upon a contract."); Sherrick v. Wyland, 14 Tex. Civ. App. 299, 37 S.W. 345, 345
(Tex. Civ. App. 1896) ("It has often been ruled, in this state and elsewhere, that fees
of counsel, incurred in prosecuting a suit for or defending against a wrong, are not
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ordinarily recoverable as actual damages, because they are not considered proximate
results of such wrong."). The rule is known as the American Rule. See Buckhannon
Bd. & Care Home, Inc. v. W. Va. Dep't of Health and Human Res., 532 U.S. 598, 602,
121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001) ("[P]arties are ordinarily required to bear
their own attorney's fees—the prevailing party is not entitled to collect from the
loser.").
A. CONTINGENT FEES ARE GENERALLY NOT PERMISSIBLE IN FAMILY LAW CASES.
The Texas Rules of Professional Conduct provide that, “A fee may be
contingent on the outcome of the matter for which the service is rendered, except in
a matter in which a contingent fee is prohibited by paragraph (e) or other law.” TX
ST RPC Rule 1.04. There are, however, certain limitations imposed upon the type
of representations which a lawyer may undertake on a contingency fee basis. For
instance, contingent fees are not permissible when representing a defendant in a
criminal case. TX ST RPC Rule 1.04(e). Another such limitation is contained within
the Reporter’s Notes to Rule 1.04, and provides that “contingent fee arrangements in
domestic relations cases are rarely justified.” TX ST RPC Rule 1.04, n.9.
While there is admittedly not an immediate concern that permitting a twenty
year tardy post-decree division of retirement funds will “tend to promote divorce,”
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there is similarly no precedent in favor of permitting contingent fee arrangements in
a post-decree division of retirement funds. Id. Setting such a precedent, particularly
under circumstances in which the prevailing party neglected to act to protect her legal
interest in previously divided retirement accounts for almost twenty years, seems to
run contrary to the intent and purpose of the Texas Rules of Professional Conduct.
B. APPELLEE CREATED THIS SITUATION BY HER OWN NEGLECT.
The reality of this situation, as acknowledged by counsel for Appellee, is that
this entire trial, indeed this entire action, could have been avoided had Appellee acted
upon the ruling of the trial court in 1993 when she was awarded a thirty-five percent
interest in Appellant’s retirement account. Instead of drafting an appropriate order
confirming the judgment of the trial court in 1993, or preparing a Qualified Domestic
Relations Order (QDRO) to effect the court’s ruling and protect her interest in the
retirement funds, as is standard practice in Texas divorces, Appellee did nothing.
Appellee did nothing despite receiving two separate notices of intent to dismiss the
case for want of prosecution. Had Appellee taken any action to protect her interest
in the previously adjudicated division of Appellant’s retirement fund between
rendition of the judgment in 1993 and Appellant’s retirement in 2006, this entire case
would have been moot.
-22-
In addition to acknowledging that this entire situation arose by virtue of her
own negligence, Appellee also admitted, contrary to her pleadings and Finding of
Fact No. 3, that she never made demand on Appellant to protect or pay over her
interest in the retirement funds. To reward Appellee and her counsel for two decades
of negligence by awarding Appellee and her counsel a forty percent contingency fee
on top of a money judgment is simply unconscionable.
C. APPELLEE’S CLAIM FOR ATTORNEY FEES IS NOT COGNIZABLE PURSUANT TO
FAMILY CODE § 9.205.
Looking past the title given to the Appellee’s pleadings to the true nature of the
claims and relief Appellee sought in the trial court, it is questionable whether attorney
fees are even awardable pursuant to Family Code § 9.205. Family Code § 9.205
applies to post-decree proceedings to “divide property previously undivided.” Tex.
Fam. Code Ann. § 9.205. In such cases, the court may award reasonable attorney
fees. Id. However, the evidence at trial, and even the pretrial pleadings of Appellee,
reveal that the property sought to be divided– to-wit: the Appellant’s Texas Eastman
retirement account– had already been divided by the trial court in 1993. As such,
Family Code § 9.205 cannot be used to justify the award of attorney fees.
-23-
D. RES JUDICATA BARS THE AWARD OF ATTORNEY FEES TO APPELLEE.
There is no indication in the court’s docket notations from 1993 that any
attorney fees were awarded to Appellee, let alone a contingent fee. In the absence of
such a ruling or order upon Appellee’s original motion to divide undivided property,
Appellant believes that the trial court’s original order in 1993 acts as res judicata as
to all matters which were actually or which might have been raised in that action,
including the determination of whether an attorney’s fee should have been awarded
to Appellee. See Day v. Day, 603 S.W.2d 213, 215 (Tex., 1980) (attempt to relitigate
previously divided property barred by res judicata.)
The rendition of the judgment of the trial court in 1993, as reflected in the
docket notations of the court for the preceding cause, constitutes the final judgment
dividing the previously undivided marital property– to-wit: Appellant’s Texas
Eastman retirement account. See Wittau v. Storie, 145 S.W.3d 732, 735 (Tex.
App.—Fort Worth 2004, no pet.) (Oral rendition of judgment by the trial court is
effective immediately; entry of the written judgment is merely a ministerial act.)
Appellee’s failure to draft and record an order of judgment following the rendition
does not negate the judgment, nor create the authority for the trial court to go back
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and make a new ruling on the availability of attorney fees some twenty years later.3
See Id., at 735-36. (Only clerical errors may be corrected after entry; not judicial
errors.)
For the foregoing reasons, Appellant respectfully asserts that the trial court
abused its discretion in awarding contingent attorney fees in this action.
2. THERE IS NO EVIDENCE, OR IN THE ALTERNATIVE, INSUFFICIENT
EVIDENCE, TO SUSTAIN THE TRIAL COURT’S FINDING THAT THE
ATTORNEY’S FEES AWARDED TO APPELLEE IN THE AMOUNT OF
$30,774.27 WERE REASONABLE AND NECESSARY.
“Attorney's fees, where recoverable, must be reasonable under the particular
circumstances of the case and must have some reasonable relationship to the amount
in controversy or to the complexity of the issue to be determined, such as the issue
here presented.” Giles v. Cardenas, 697 S.W.2d 422, 429-430 (Tex.App. 4
Dist.,1985). In determining whether attorney's fees are reasonable, the trial court
3
An aspect of the court’s award of attorney fees for a second division of Appellant’s
retirement account some twenty years after the first division, which was not explored at trial, but
which is nonetheless troubling, is that the same attorney represented Appellee in both 1993 and
2015. This fact suggests that there may have been a prior, controlling attorney-client contract
between Appellee and her attorney which obligated Mr. Wilder to perform the post-decree
division on a basis other than contingent fee representation. Such revised contracts are subjected
to close scrutiny to ensure fairness to the client. In re Wells, 294 Fed. Appx. 841, 845 (5th Cir.
2008).
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should consider the factors discussed in Arthur Anderson & Co. v. Perry Equip.
Corp., 945 S.W.2d 812, 818 (Tex.1997):
1. the time and labor required, the novelty and difficulty of the questions
involved, and the skill required to perform the legal service properly;
2. the likelihood that the acceptance of the particular employment will preclude
other employment;
3. the fee customarily charged in the locality for similar legal services;
4. the amount involved and the results obtained;
5. the time limitations imposed by the client or by the circumstances;
6. the nature and length of the professional relationship with the client;
7. the experience, reputation, and ability of the lawyer or lawyers performing
the services; and
8. whether the fee is fixed or contingent on results obtained or uncertainty of
collection before the legal services have been rendered. See Arthur Andersen
& Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex.1997).
Generally, the nature and extent of the attorney's services are expressed by the
number of hours and the hourly rate. Burnside Air Conditioning v. T.S. Young, 113
S.W.3d 889, 897–98 (Tex.App.-Dallas 2003, no pet.). However, there is no rigid
requirement that these facts must be introduced into evidence to support a finding that
-26-
attorney's fees are necessary and reasonable. Id.; Hays & Martin, L.L.P. v.
Ubinas–Brache, M.D., 192 S.W.3d 631, 636 (Tex.App.-Dallas 2006, pet. denied).
The trial court can also look at the entire record and the common knowledge of the
participants as lawyers and judges, and the relative success of the parties when
determining reasonable and necessary attorney's fees. Burnside Air Conditioning v.
T.S. Young, 113 S.W.3d at 897. Absence of evidence pertaining to the reasonableness
factors set forth in TRPC 1.04 and Arthur Anderson decision, can invalidate an award
of attorney’s fees. Castle Texas Prod. Ltd. P'ship v. Long Trusts, 134 S.W.3d 267,
278-79 (Tex. App.—Tyler 2003, pet. denied).
The trial or appellate court has the duty to reduce the fee awarded if it is
excessive. Southland Life Ins. Co. v. Norton, 5 S.W.2d 767 (Tex.Comm'n App.1928,
holding approved); Argonaut Ins. Co. v. ABC Steel Products, 582 S.W.2d 883
(Tex.Civ.App.—Texarkana 1979, writ ref'd n.r.e.). In determining whether the award
is excessive, the reviewing court is entitled to look at the entire record and to view
the matter in the light of the testimony, the amount in controversy, the nature of the
case, and its common knowledge and experience as lawyers and judges. Wuagneux
Builders, Inc. v. Candlewood Builders, Inc., 651 S.W.2d 919, 922 -923 (Tex.App.
2 Dist.,1983).
-27-
The trial court stated in its Findings of Fact No. 6 that, “Petitioner incurred
reasonable and necessary attorney’s fees in connection with recovering her property.”
The trial court stated in its Conclusion of Law No. 2 that, “Counsel for Petitioner
[Appellee] is entitled to recover the sum of $30,774.27 for reasonable attorney’s fees,
said amount payable to the attorney.” The only evidence supporting the amount of
the attorney fee awarded was the representation contract itself and the testimony of
Wilder regarding the reasonableness and necessity of the contingency fee
arrangement.
Attorney Wilder testified that he had thirty years of experience in the type of
work for which Appellee retained his services, and that he was familiar with the types
of fees that are charged for such work. Appellee and her attorney testified that they
understood a forty percent (40%) contingency fee to be a standard contingency fee
amount for the recovery of money in litigation in East Texas. Appellee and her
attorney testified that they believed Appellee would have been unable to retain
Attorney Clay Wilder on an hourly basis to represent her interests in the underlying
matter. Attorney Wilder testified that the final hearing of this matter took
approximately an hour and a half.
Despite the brief time required to hear the matter, Attorney Wilder assured the
trial court that the case “required a great deal of work, a great deal of effort on my
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part, on my office’s part, and on my staff’s part.” 1 RR 77:24-25. Attorney Wilder
further described the amount of work performed in relation to the representation as
“multiple hours of effort”... “a great amount of time.” 1 RR 79:20–80:3.
Attorney Wilder also testified to the need to prepare and review documents
obtained via business record subpoenas in advance of the hearing, and approximately
$1,200.00 in case expenses, including depositions.
Analyzing Attorney Wilder’s time according the Arthur Anderson factors
produces the following chart:
Reasonableness Factor Evidence
1. Time and labor, novelty and difficulty, and Amount of time and labor described as a great
skill required deal of work/effort; requisite skill level
unclear
2. Preclusion of other employment None
3. Customary fee charged None
4. Amount involved; results obtained See Judgment
5. Time limitations imposed by client or None
circumstances
6. Nature and length of client relationship At least twenty years
7. Experience, reputation and ability Thirty years of experience
8. Whether fee is fixed or contingent on Fee is contingent upon results; uncertainty not
results obtained or uncertainty of collection discussed.
before the legal services have been rendered
-29-
By and large, Attorney Wilder’s painted the picture that he undertook the
Appellee’s representation on a contingency basis due to her need and inability to
afford to retain him hourly. Missing from his testimony was information about the
prior representation wherein he was retained by the same client to obtain the same
division of Appellant’s retirement account in 1993, information about the actual
hours spent working on the 2015 case, an explanation as to why he characterized this
a complex case due to the need to prepare one, perhaps two, business record
subpoenas and take a deposition, or any testimony to the effect that it was standard
and acceptable practice to take domestic relations work such as this on a contingent
fee basis. Appellant will leave it to the review of this Honorable Court to determine
if the record herein supports the award of a $30,774.27 attorney’s fee under these
circumstances. Appellant’s position is that even if this were the type of case in which
contingent fees were appropriate, the attorney’s fee awarded by the trial court is
patently excessive given the simplicity of the issues involved and the limited amount
of court time required to resolve the issues in dispute.
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3. THERE IS NO EVIDENCE, OR IN THE ALTERNATIVE, INSUFFICIENT
EVIDENCE, TO SUSTAIN THE TRIAL COURT’S FINDING THAT
RETIREMENT FUNDS AWARDABLE TO APPELLEE WOULD HAVE
GROWN IN THE AMOUNT OF $29,660.48 BETWEEN 2006 AND 2015.
Appellee introduced “Plaintiff’s Exhibit No. 6” at trial– a document purporting
to be a market report and commercial publication relevant “to address the need to
compound this base number [with interest] and go forward.” Appellant objected on
the ground of hearsay, and was overruled, apparently on the ground that Texas Rule
of Evidence 803(17) excepts market reports and similar commercial publications.
Based upon the purported “market report,” Appellee deduced at trial that her portion
of the retirement funds “properly invested” over the period of time between
Appellant’s retirement on February 1, 2006 and the first quarter of 2015 would have
earned 5.56 percent. 1 RR 73:15-22. Utilizing the 5.56% growth rate, Appellee
introduced a summary exhibit purporting to show a total nine year compounded
interest amount on the base rate of $29,660.48. 1 RR 73:23–74:8; 2 RR 659-664
(“Plaintiff’s Exhibit No. 7”).
This all seems perfectly reasonable, until one realizes that Appellee failed to
qualify the exhibit under Rule 803(17). TX R EVID Rule 803(17). Appellee
produced no evidence that the purported market report was “reliable and regularly
used in a trade or specialized activity by persons so engaged.” See Patel v.
-31-
Kuciemba, 82 S.W.3d 589, 594 (Tex. App.—Corpus Christi 2002, pet. denied). The
fact is, that while the Appellee identified what could have been a proper hearsay
exception when combined with foundational testimony, there is no evidence
whatsoever in the record to support the reliability of the purported market record used
to establish the 5.56% rate of return. Moreover, in reviewing the purported market
record, it seems quite obvious to Appellant that only an expert used to reading
financial reports and projections of this type would be able to say with any certainty
what the annual rate of return established by the document would actually be.
There is no question that the purported market report was an out-of-court
statement offered by Appellee to prove the truth of the matter asserted. See TX R
EVID Rule 801. In the absence of foundational testimony to establish reliability and
regular use by persons engaged in the financial trades, the document marked at trial
as “Plaintiff’s Exhibit No. 6” does not qualify for the Rule 803(17) exception to the
hearsay rule, and the trial court’s admission of the exhibit as evidence of the 5.56%
growth rate was error. There being no admissible evidence to substantiate the 5.56%
growth rate, or the award of $29,660.48 as “additional damage” during the nine years
that Appellant “held” Appellee’s money, the trial court’s Finding of Fact and
Conclusion of Law on that point is clearly erroneous.
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4. THERE IS NO EVIDENCE, OR IN THE ALTERNATIVE, INSUFFICIENT
EVIDENCE, TO SUSTAIN THE TRIAL COURT’S FINDING THAT A
CONSTRUCTIVE TRUST (OR OTHER LIEN) SHOULD ATTACH TO THE
APPELLANT’S FUNDS ON DEPOSIT WITH EDWARD JONES.
The trial court made the following requisite Findings of Fact in favor of
impressing a constructive trust upon Appellant’s Edward Jones account:
1. Petitioner [Appellee] was entitled to thirty-five percent (35%) of
Respondent’s [Appellant’s] employment/retirement benefits
accumulated during their marriage.
2. Respondent [Appellant] retired from said employment on February 1,
2006 and completely withdrew one hundred percent (100%) of all said
employment/retirement benefits, including those belonging to Petitioner.
3. Respondent [Appellant] would not deliver Petitioner [Appellee] her
share of the asset, despite her demands for payment and held it without
authority.
4. When Respondent [Appellant] retired and withdrew the accounts,
Petitioner’s [Appellee’s] portion thereof was $47,275.20.
Based upon these factual findings, the trial court concluded as a matter of law that,
“Payment of the amount ordered herein are secured by a lien against all accounts
standing the name of Respondent [Appellant] at Edward Jones Investments.”
-33-
Arguably missing from Appellee’s testimony and case was evidence that
Appellant wrongfully took property owned by Appellee. Baker Botts, L.L.P. v.
Cailloux, 224 S.W.3d 723, 736 (Tex.App.–San Antonio 2007, pet. denied). The
Appellee herself admitted that she had failed to segregate her specific interest in the
retirement account following the 1993 judgment, or secure a QDRO for the funds.
She also admitted to having never asked the Appellant to safeguard or turnover her
share of the account. Appellee asserted via argument that Appellant wrongfully
withheld Appellee’s share of the funds, but the available evidence undermines this
assertion.
Also missing from Appellee’s case was evidence that Appellant and Appellee
were involved in a fiduciary or special relationship in regards to the retirement funds.
Such evidence is a prerequisite to the imposition of a constructive trust. Kostelnik v.
Roberts, 680 S.W.2d 532, 534 (Tex. App.—Corpus Christi 1984), writ refused NRE
(Jan. 16, 1985); Rankin v. Naftalis, 557 S.W.2d 940, 944 (Tex. 1977). The mere fact
that Appellant and Appellee are former spouses with a co-tenancy in a portion of
Appellant’s retirement account is insufficient to impose a constructive trust upon his
accounts. “The mere failure to pay an unsecured debt cannot possibly be grounds for
impressing upon real estate a constructive trust.” Landram v. Robertson, 195 S.W.2d
170, 174 (Tex. Civ. App.—San Antonio 1946), writ refused NRE.
-34-
PRAYER FOR RELIEF
For all reasons set out, Appellant, Geary Lee prays that this Court reverse the
orders of the Rusk County Court and Law ordering Appellant to pay an unreasonable
and unjust attorney fee, ordering Appellant to pay unproven and unjust prejudgment
interest, ordering a constructive trust and equitable lien to be placed upon the
retirement funds of Appellant, and reverse such orders in favor of Appellant, or
alternatively, remand for new trial in a manner consistent with the law and rulings of
this Honorable Court.
Respectfully Submitted,
LAW OFFICES OF JOE SHUMATE
107 N. Main Street
P O Box 1915
Henderson, Texas 75652
Tel: (903) 657-1416
Fax: (903) 655-8211
By: ________________________________
JOE SHUMATE
State Bar No. 18327500
JAMES J. ROSENTHAL
State Bar No. 24088801
Attorney for Appellant
-35-
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that this
brief contains 6,086 words (excluding any 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, statement of
procedural history, signature, proof of service, certification, certificate of compliance,
and appendix). This is a computer-generated document created in WordPerfect, using
14-point typeface for all text, except for footnotes which are in 12-point typeface. In
making this certificate of compliance, I am relying on the word count provided by the
software used to prepare the document.
Date: November 16, 2015
________________________________________
James J. Rosenthal
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above and foregoing document
has been served upon all known counsel of record and/or parties without counsel via:
_____ certified U.S. mail, return receipt requested
_____ hand/messenger delivery
_____ regular first class U. S. mail, postage prepaid
__X__ facsimile transmission or e-service
Said service being made this 16th day of November, 2015, by sending to:
Clay Wilder
200 N. Main Street
Henderson, Texas 75652
__________________________________________
JAMES J. ROSENTHAL
-36-
APPENDIX
Exhibit A: Judgment
Exhibit B: Texas Rule of Evidence 801
Exhibit C: Texas Rule of Evidence 802
Exhibit D: Texas Rule of Evidence 803
Exhibit E: Texas Rule of Professional Conduct 1.04
-37-
Texas Rule of Evidence 801
Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay
(a) Statement. “Statement” means a person's oral or written verbal expression, or
nonverbal conduct that a person intended as a substitute for verbal expression.
(b) Declarant. “Declarant” means the person who made the statement.
(c) Matter Asserted. “Matter asserted” means:
(1) any matter a declarant explicitly asserts; and
(2) any matter implied by a statement, if the probative value of the statement as
offered flows from the declarant's belief about the matter.
(d) Hearsay. “Hearsay” means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the
statement.
(e) Statements That Are Not Hearsay. A statement that meets the following
conditions is not hearsay:
(1) A Declarant-Witness's Prior Statement. The declarant testifies and is subject to
cross-examination about a prior statement, and the statement:
(A) is inconsistent with the declarant's testimony and:
(i) when offered in a civil case, was given under penalty of perjury at a trial,
hearing, or other proceeding or in a deposition; or
(ii) when offered in a criminal case, was given under penalty of perjury at a trial,
hearing, or other proceeding--except a grand jury proceeding--or in a deposition;
(B) is consistent with the declarant's testimony and is offered to rebut an express
or implied charge that the declarant recently fabricated it or acted from a recent
improper influence or motive in so testifying; or
(C) identifies a person as someone the declarant perceived earlier.
(2) An Opposing Party's Statement. The statement is offered against an opposing
party and:
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement on the
subject;
(D) was made by the party's agent or employee on a matter within the scope of that
relationship and while it existed; or
(E) was made by the party's coconspirator during and in furtherance of the
conspiracy.
(3) A Deponent's Statement. In a civil case, the statement was made in a
deposition taken in the same proceeding. “Same proceeding” is defined in Rule of
Civil Procedure 203.6(b). The deponent's unavailability as a witness is not a
requirement for admissibility.
Texas Rule of Evidence 802
Rule 802. The Rule Against Hearsay
Hearsay is not admissible unless any of the following provides otherwise:
• a statute;
• these rules; or
• other rules prescribed under statutory authority.
Inadmissible hearsay admitted without objection may not be denied probative
value merely because it is hearsay.
Texas Rule of Evidence 803(17)
Rule 803. Exceptions to the Rule Against Hearsay--Regardless of Whether the
Declarant Is Available as a Witness
The following are not excluded by the rule against hearsay, regardless of whether
the declarant is available as a witness:
...
(17) Market Reports and Similar Commercial Publications. Market quotations,
lists, directories, or other compilations that are generally relied on by the public or
by persons in particular occupations.
Texas Rule of Professional Conduct 1.04
(a) A lawyer shall not enter into an arrangement for, charge, or collect an illegal
fee or unconscionable fee. A fee is unconscionable if a competent lawyer could
not form a reasonable belief that the fee is reasonable.
(b) Factors that may be considered in determining the reasonableness of a fee
include, but not to the exclusion of other relevant factors, the following:
(1) the time and labor required, the novelty and difficulty of the questions
involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular
employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the
services; and
(8) whether the fee is fixed or contingent on results obtained or uncertainty of
collection before the legal services have been rendered.
(c) When the lawyer has not regularly represented the client, the basis or rate of
the fee shall be communicated to the client, preferably in writing, before or within
a reasonable time after commencing the representation.
(d) A fee may be contingent on the outcome of the matter for which the service is
rendered, except in a matter in which a contingent fee is prohibited by paragraph
(e) or other law. A contingent fee agreement shall be in writing and shall state the
method by which the fee is to be determined. If there is to be a differentiation in
the percentage or percentages that shall accrue to the lawyer in the event of
settlement, trial or appeal, the percentage for each shall be stated. The agreement
shall state the litigation and other expenses to be deducted from the recovery, and
whether such expenses are to be deducted before or after the contingent fee is
calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide
the client with a written statement describing the outcome of the matter and, if
there is a recovery, showing the remittance to the client and the method of its
determination.
(e) A lawyer shall not enter into an arrangement for, charge, or collect a contingent
fee for representing a defendant in a criminal case.
(f) A division or arrangement for division of a fee between lawyers who are not in
the same firm may be made only if:
(1) the division is:
(i) in proportion to the professional services performed by each lawyer; or
(ii) made between lawyers who assume joint responsibility for the representation;
and
(2) the client consents in writing to the terms of the arrangement prior to the time
of the association or referral proposed, including:
(i) the identity of all lawyers or law firms who will participate in the fee-sharing
agreement, and
(ii) whether fees will be divided based on the proportion of services performed or
by lawyers agreeing to assume joint responsibility for the representation, and
(iii) the share of the fee that each lawyer or law firm will receive or, if the division
is based on the proportion of services performed, the basis on which the division
will be made; and
(3) the aggregate fee does not violate paragraph (a).
(g) Every agreement that allows a lawyer or law firm to associate other counsel in
the representation of a person, or to refer the person to other counsel for such
representation, and that results in such an association with or referral to a different
law firm or a lawyer in such a different firm, shall be confirmed by an arrangement
conforming to paragraph (f). Consent by a client or a prospective client without
knowledge of the information specified in subparagraph (f)(2) does not constitute
a confirmation within the meaning of this rule. No attorney shall collect or seek to
collect fees or expenses in connection with any such agreement that is not
confirmed in that way, except for:
(1) the reasonable value of legal services provided to that person; and
(2) the reasonable and necessary expenses actually incurred on behalf of that
person.
(h) Paragraph (f) of this rule does not apply to payment to a former partner or
associate pursuant to a separation or retirement agreement, or to a lawyer referral
program certified by the State Bar of Texas in accordance with the Texas Lawyer
Referral Service Quality Act, Tex. Occ. Code 952.001 et seq., or any amendments
or recodifications thereof.