in Re Lowell Scott Gilbreath, Relator
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Opinion
In The Court of Appeals Seventh District of Texas at Amarillo ________________________
No. 07-20-00244-CV ________________________
IN RE LOWELL SCOTT GILBREATH, RELATOR
Original Proceeding Arising From Proceedings Before the 110th District Court Floyd County, Texas Trial Court No. 11078; Honorable William Smith, Presiding
September 17, 2020
ORDER ON EMERGENCY MOTION TO STAY ORDER OF SANCTIONS Before PIRTLE, PARKER, and DOSS, JJ.
Pending before this court is Lowell Scott Gilbreath’s Emergency Motion to Stay
Order of Sanctions and his Petition for Writ of Mandamus stemming from a pending
lawsuit against the Real Party in Interest, Brian Pemberton, in a land dispute. In the
underlying suit, the trial court entered an order of sanctions requiring Gilbreath to pay
$19,949.75 in monetary sanctions (representing reasonable and necessary attorney’s
fees) by Friday, September 18, 2020. The order also barred him from presenting any evidence of a common law marriage or special relationship between him and Debra
Moses, Pemberton’s deceased mother, at a trial on the merits.
Pursuant to this court’s request, Pemberton filed a response to the emergency
motion. We grant the request for emergency relief and stay the Order of Sanctions
conditioned upon the filing of a bond as provided hereinbelow. By this order, we also
request that Pemberton file a response to Gilbreath’s Petition for Writ of Mandamus on or
before October 2, 2020.
BACKGROUND
According to the mandamus record before us, Gilbreath gave Moses refuge from
an abusive marriage in 2010. She subsequently divorced her husband in 2012. Gilbreath
asserts he and Debra became romantically involved and they became engaged in 2013.
He further asserts they entered into a general farming partnership that eventually included
the land in question. In 2016, Gilbreath provided financial resources to assist Moses in
litigation to acquire real property from a trust of which she was a named beneficiary. That
property became “the lifeblood” of their farming relationship and Gilbreath claims that
Moses promised he could farm the land for the remainder of his life.
Apparently unbeknownst to Gilbreath, in April 2017, Moses deeded the property to
her son and reserved only a life estate. She died on May 19, 2019. Gilbreath asserts he
discovered the conveyance during probate of the estate and that he and Pemberton
entered into an agreement by which Gilbreath would continue to farm the property in 2019
and then have the right of first refusal to purchase the land. In July 2019, Gilbreath
prepared the property and planted wheat and rye. His understanding was that Pemberton
2 also agreed to allow him to farm the land in 2020. However, in September 2019,
Pemberton revoked his offer and in December 2019, he obtained a no-trespass order.
Gilbreath filed suit and an application for a temporary restraining order in February 2020.
By his live pleading, Gilbreath alleges claims of unjust enrichment, quantum
meruit, promissory estoppel, beneficiary of fraud, and conversion. In response,
Pemberton’s pleadings allege that Gilbreath was his mother’s “live-in boyfriend” and that
his agreement to farm the land was pursuant to an unwritten year-to-year lease
agreement. He alleged that Gilbreath misrepresented the nature of the relationship with
his mother and also made false representations regarding the property. Pemberton filed
an application for a temporary injunction.
Relevant to the underlying proceeding is a lengthy telephone call between
Gilbreath and a fact witness, Sherry Regnier. Regnier was Moses’s sister-in-law and
Pemberton is her nephew. She had known Moses for forty years. Regnier initiated the
call on September 15, 2019, to discuss retrieving some of Moses’s Christmas ornaments.
Regnier recorded the call without Gilbreath’s consent. According to her, during the call,
Gilbreath coerced her into withholding testimony regarding whether he and Moses had a
common law marriage or a special relationship. Regnier insisted that if Moses and
Gilbreath had been engaged or had a common law marriage, Moses would have told her
about it. She alleged that Gilbreath threatened her and her children by telling her his
lawyer was ruthless and that he would “[rip] you-all to pieces up there on that stand” if
they were called to testify. Regnier also claimed that Gilbreath pressured her to lie if
called as a witness by answering questions with “I don’t recall.”
3 Relying on Rule 215.3 of the Texas Rules of Civil Procedure, 1 on May 13, 2020,
Pemberton filed a Motion for Sanctions alleging that Gilbreath unlawfully tampered with
a material fact witness. He described Gilbreath’s conduct as “egregious” and prayed for
death penalty sanctions—striking Gilbreath’s pleadings, dismissing his claims with
prejudice, rendering a default judgment against him, and awarding attorney’s fees and
costs. In support of his prayer for death penalty sanctions, he further alleged Gilbreath’s
conduct violated the provisions of Section 36.05(a) of the Texas Penal Code, pertaining
to tampering with a witness. Gilbreath responded that he did not coerce Regnier and that
Pemberton’s reliance on section 36.05(a) of the Penal Code, a criminal statute, was
misplaced. He also contests the imposition of death penalty sanctions as being
excessive.
A hearing on the Motion for Sanctions was held on June 10, 2020, after which the
trial court issued a letter ruling reciting the following: “Motion for Sanctions is Granted.
[Gilbreath] cannot present any evidence of a marriage to Debra Moses, common law or
other.” As requested by the trial court, Pemberton’s counsel drafted a proposed order
which was objected to by Gilbreath.
On August 19, 2020, the trial court issued its formal Order of Sanctions. Among
the findings, the order recites that Gilbreath “committed the offense of witness tampering
under Texas Penal Code § 36.05 by coercing witness Sherri [sic] Regnier in an official
proceeding . . . .” The order recites that it was issued “under [the trial court’s] inherent
1 Rule 215.3 is entitled “Abuse of Discovery Process in Seeking, Making, or Resisting Discovery.” TEX. R. CIV. P. 215.3.
4 authority to impose sanctions for abuse of the judicial process.” Another provision recites
that “[s]anctions that terminate or inhibit the presentation of the merits of a party’s claims
for decision are authorized by Texas Rule of Civil Procedure 215” and that Gilbreath is
barred by the order “from presenting any evidence of a common law marriage or other
special relationship with Debra Moses, deceased.” According to the order, lesser
unnamed sanctions were considered and rejected by the trial court. Finally, the order
awards Pemberton “reasonable and necessary attorney’s fees in the amount of
$19,949.75, which shall be paid by [Gilbreath] to [Pemberton] within 30 days,” presumably
from the date of that order.
By his emergency motion for relief, Gilbreath requests a stay of the Order of
Sanctions pending this court’s decision on the merits of his Petition for Writ of Mandamus.
By his response, Pemberton asserts that temporary relief is neither necessary to prevent
undue prejudice nor maintain the status quo pending a decision on the Petition for Writ of
Mandamus. Alternatively, Pemberton requests that should this court grant emergency
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