in Re Todd Durden

• Court: Court of Appeals of Texas
• Decided: March 25, 2015
• Docket: 02-15-00106-CV
• Status: Published

Opinion

ACCEPTED 02-15-00106-CV SECOND COURT OF APPEALS FORT WORTH, TEXAS 3/25/2015 3:23:10 PM DEBRA SPISAK CLERK

IN THE COURT OF APPEALS FILED IN 2nd COURT OF APPEALS FORT WORTH, TEXAS SECOND COURT OF APPEALS DISTRICT 03/25/2015 3:23:10 PM DEBRA SPISAK FORT WORTH, TEXAS Clerk

No. 2-15-00106-CV

In re Todd Durden,

Relator,

__________________________________________________________________

REPORTER’S SWORN RECORD __________________________________________________________________

Todd A. Durden State Bar of Texas No. 06276680

THE DURDEN LAW FIRM 131 E. Vine St. Keller, Texas 76248 Tel: (817) 431-0099 Fax: (817) 431-0096 Email: durdenlawyer@att.net Relator 1

1 R E P O R T E R ' S R E C O R D

3 VOLUME 1 OF 1

4 Trial Court Cause No. 324-551602-14

5 IN THE MATTER OF THE )( IN THE DISTRICT COURT MARRIAGE OF: )( 6 BETTE JILL SCOTT )( TARRANT COUNTY, TEXAS AND )( 7 CALVIN GREGORY SCOTT )( 324TH JUDICIAL DISTRICT

10 ***********************************************************************

11 MOTION FOR CONTEMPT

12 ***********************************************************************

14 BE IT REMEMBERED that on the 24th, day of

15 September, 2014, the above-entitled and numbered cause came

16 on for hearing before the Honorable Beth A. Poulos,

17 Associate Judge of the 324th District Court, Fort Worth,

18 Tarrant County, Texas, and whereupon the proceedings

19 hereinafter contained were had of record:

20 Proceedings were reported by Stenotype Method.

Kelvin E. Johnson, CSR 2

1 A P P E A R A N C E S

3 MR. ROBERT T. STITES ATTORNEY AT LAW 4 State Bar of Texas No. 19251900 933 W. Weatherford Street, Ste. #200 5 Fort Worth, Texas 76102-1812 Phone No. (817) 336-7577 6 Fax No. (817) 336-7583

7 ATTORNEY ON BEHALF OF MOVANT

9 MR. TODD A DURDEN THE DURDEN LAW FIRM 10 State Bar of Texas No. 06276680 131 East Vine Street 11 Keller, Texas 76248 Phone No. (817) 431-0099 12 Fax No. (817) 431-0096

13 ATTORNEY ON BEHALF OF RESPONDENT

Kelvin E. Johnson, CSR 3

1 C H R O N O L O G I C A L I N D E X

2 VOLUME NO. 1

3 MOTION FOR CONTEMPT

4 September 24th, 2014 PAGE

5 PROCEEDINGS........................................................ 4

6 M O V A N T ' S E V I D E N C E

7 WITNESS: Direct Cross Voir Dire 8 CALVIN G. SCOTT 10 N/A N/A ROBERT T. STITES 20 23 N/A 9

11 E X H I B I T I N D E X M O V A N T 12 NUMBER MRKD IDNTD OFFRD RECD VOL 13 PX-EXHIBIT NO. 1: 15 15 15 17 1 PX-EXHIBIT NO. 2: 18 18 18 20 1 14

16 E X H I B I T I N D E X R E S P O N D E N T 17 NUMBER MRKD IDNTD OFFRD RECD VOL 18 RX-EXHIBIT NO. 1: 24 24 24 25 1

20 COURT REPORTER'S CERTIFICATE........................................31 21

Kelvin E. Johnson, CSR 4

1 P R O C E E D I N G S

3 THE COURT: All right. The Court calls Cause Number

4 324-5516o2-14, in the matter of the marriage of "Bette" or "Bette" --

5 MRS. SCOTT: It's "Bette Jill". I go by "Jill".

6 THE COURT: -- Scott and Calvin Gregory Scott.

7 The matter that we are undertaking today is the Motion

8 for Enforcement and for Sanctions. And at this point the Court will take

9 Judicial Notice of it's file. And, specifically, the Motion for

10 Enforcement and for Sanctions that were filed on August 28th, 2014.

11 Is the Movant ready?

12 MR. STITES: Yes.

13 THE COURT: Is the Respondent ready to go forward?

14 MR. DURDEN: Yes, your Honor.

15 THE COURT: Mr. Stites.

16 MR. STITES: May it please the Court. May I make a

17 statement to you?

18 THE COURT: Yes.

19 MR. STITES: When I'm done, I'm going to ask you to take

20 notice of the underlying Court Order, the relevant portions of which are

21 cited in the Motion for Enforcement and for Sanctions of which you just

22 stated.

23 Calvin Gregory Scott doesn't believe that these orders

24 apply to him. On August the 25th, I received a fax, an email and a

25 certified letter, all three, from Attorney Durden admitting that his

Kelvin E. Johnson, CSR 5

1 client, Number 1; accessed community funds, to wit, the Texas Trust

2 Certificate Of Deposit, the identification number is correctly stated on

3 Page 2 of our enforcement motion, cashed it out in the amount of

4 $70,089.00, deposited half of that amount, approximately $35,042.00, into

5 Attorney Durden's IOLTA Trust Account for prospective, apparently, attorney

6 fees. The remainder, and this is according to Mr. Durden's fax, letter and

7 certified letter to me, dated August 25th, the remainder of the funds were

8 allegedly deposited into a new Texas Trust Account, the account number is

9 correctly recited on my contempt pleading, in the name only of Calvin

10 Gregory Scott. This was done without the signed written agreement of the

11 parties; without any order of the Court in advance. The reason that

12 sanctions have been asked for is that it is apparent to me that Mr. Durden

13 was complicit in this action either by advising his client to take the

14 action or certainly after he cashed out this CD. Which, obviously, cost

15 the community estate whatever accrued interest was there. He had the

16 monies to be placed under his control and in his trust account for attorney

17 fees that he had not even yet rendered.

18 I've got a proposed order which, again, I'm asking that

19 Mr. Scott be held in contempt. I'm not asking for incarceration. I'm

20 asking that he be found in contempt, however. That he pay a fine. That he

21 pay my attorney fees. And that Mr. Durden be sanctioned in a monetary

22 amount for his actions, his obvious actions, in being complicit with this

23 Court Order violation or maybe even advising his client to take these

24 actions.

25 And with that statement, I'm ready to proceed, your

Kelvin E. Johnson, CSR 6

1 Honor.

2 MR. DURDEN: If I may briefly respond, your Honor.

3 THE COURT: Yes.

4 MR. DURDEN: May it please the Court. The subject of

5 attorney fees and the payment of those attorney fees have been at issue

6 between the parties. There had been discussions -- there's a letter in the

7 Court's file of which you've taken Judicial Notice. And attorney fees had

8 been paid by Mrs. Scott to Mr. Stites throughout this case. The -- I will

9 say there was a letter that Mr. Stites has referenced, but one thing that's

10 very important, your Honor, one thing and I have this in two letters that

11 I've written to him, one-half was paid toward attorney fees and expenses.

12 The other half was put into an account of both parties' name. This

13 documentation was provided to them immediately. And it's simply a false

14 statement in a pleading for him to say it was put in to an account with his

15 name only. I expect that there would be a copy of the checkbook for this

16 new account that has both names. And in showing that, no, this was not

17 money that was taken out and accessed in such a way that prohibited, as to

18 the remainder of the CD, the other party from accessing of that.

19 Finally, there were two separate letters bringing that to

20 Mr. Stites' attention. I'm concerned that he's here saying that it's in

21 Mr. Scott's sole name only. I'm concerned about that representation. I

22 will say that after he and I called to discuss the attorney fees issue,

23 okay -- It was actually a Certificate of Conference of his filing the

24 motion. I said I don't agree with you, but I will preserve the money in my

25 IOLTA Account. So all of the money is there. And it is there today. So

Kelvin E. Johnson, CSR 7

1 as far as there's been no depleting. And this was my -- and I have --

2 Again, this is a letter I actually sent this before I received by mail, a

3 certified mail copy of his motions. But it was -- It's been Mr. Scott's

4 intent at all times to follow the letter and spirit of the order. I

5 understand the Court's reading. I understand the Court's reading. But I

6 will certainly say as far as his position in this case, he understands

7 there's -- there was a -- there was a savings account from which attorney

8 fees were being paid which no longer has any funds. After the mediation,

9 both sides were going to need to have attorney fees to move forward. Now,

10 would it have been more -- I guess that's what I would say, that a good

11 faith effort was made to comply with the orders and to present this issue

12 to the Court. And I will just tell you right away, I understand the way

13 that you are reading that, and I will just tell the Court I'm sorry. I did

14 not read it that way. My client didn't read it that way. But we've done

15 everything we can to try to bring this issue before the Court and do so in

16 a way that respects the parties and their rights, their right to be

17 properly represented in this action. And to avail themselves of the rights

18 of the orders therein presented.

19 Thank you, your Honor.

20 THE COURT: We are going to go off the record for one

21 moment.

22 (At this time a discussion was held off the record, after which 23 the Proceedings continued as follows:) 24

25 THE COURT: Mr. Stites, call your first witness.

Kelvin E. Johnson, CSR 8

1 MR. STITES: My first witness would be Calvin Gregory

2 Scott, adversely, under the Adverse Witness Rule.

3 THE COURT: You have asked for jail time?

4 MR. STITES: No, specifically, not. I asked for a

5 finding of contempt, a fine and attorney fees and sanctions against

6 Attorney Durden for being complicit in this.

7 THE COURT: I think if you ask for a finding of contempt,

8 it is a sanction that the Court can make and confine the Respondent to

9 jail. So I am going to give him his 5th Amendment warning.

10 MR. STITES: Very good.

11 THE COURT: Mr. Scott, you are charged with contempt of

12 this Court. As such, you are entitled to be represented by an attorney.

13 If you are too poor to afford one, a Court appointed attorney will

14 represent you. You are entitled to have a record of this hearing made by a

15 Court Reporter. And standing besides you is a competent attorney. And you

16 have the Court Reporter taking down all of this. So those rights have been

17 protected by you so far.

18 The contempt charge against you must be proven beyond a

19 reasonable doubt. You have the right to remain silent and not make any

20 statements and you may not be forced to testify in this hearing if you do

21 not wish to do so.

22 If the written charging instrument requests you be

23 imprisoned more than six months or requests you be fined more than $500.00,

24 you have a right to a Jury. And neither of those provisions are in the

25 motion. So you do not have the right to a Jury here today.

Kelvin E. Johnson, CSR 9

1 Do you understand these warnings?

2 MR. SCOTT: Yes.

3 THE COURT: Thank you.

4 MR. DURDEN: Your Honor, my client invokes his 5th

5 Amendment privilege.

6 THE COURT: Okay.

7 MR. STITES: I have the right -- I respect that. I do

8 have the right to ask him some questions and have him invoke whatever he's

9 going to invoke in response to my questions.

10 THE COURT: Right.

11 Please take the stand.

12 Mr. Durden, be vigilant.

13 MR. DURDEN: Thank you, your Honor.

14 THE COURT: Mr. Stites.

15 MR. STITES: Judge Poulos, I said this earlier in my

16 opening statement --

17 THE COURT: Yes --

18 Be seated please.

19 MR. DURDEN: Yes.

20 THE COURT: The que to the witness that you are making an

21 objection and that he shouldn't answer the question is you on your feet.

22 Otherwise, I would appreciate you stay seated so that que remains obvious

23 to him.

24 MR. DURDEN: Thank you, your Honor.

25 MR. STITES: May it please the Court.

Kelvin E. Johnson, CSR 10

1 THE COURT: Yes.

2 MR. STITES: Can I address you by standing?

3 THE COURT: I thought you were going to ask this witness

4 questions.

5 MR. STITES: I am. I said this in my opening statement,

6 but I would ask you to take notice of the underlying Court Order signed

7 March 21st, 2014. The relevant portions of which are recited in the Motion

8 for Enforcement and for Sanctions filed August 28th. You did take notice

9 of the motion.

10 THE COURT: The Court will take Judicial Notice of the

11 temporary orders entitled temporary orders in the file which were signed by

12 me on March 21st of 2014.

13 MR. STITES: Thank you very much.

14 May I proceed?

15 THE COURT: Yes, you may.

17 CALVIN GREGORY SCOTT

18 said witness, having been first duly cautioned and sworn, was

19 called as a witness on behalf of the MOVANT, and

20 testified as follows, to-wit:

22 DIRECT EXAMINATION

24 BY MR. STITES:

25 Q. You are Calvin Gregory Scott; is that true?

Kelvin E. Johnson, CSR 11

1 MR. DURDEN: Your Honor, my client invokes his 5th

2 Amendment privilege.

3 MR. STITES: I can ask him who he is and prove -- One of

4 my burdens is to prove that he is the Respondent. He is the obligor on the

5 temporary orders. I don't think that's in dispute, but I believe I have to

6 give evidence to you in that regard.

7 MR. DURDEN: Your Honor, it's my position that he doesn't

8 have to testify at all. If he wishes to overrule my objection --

9 THE COURT: I am overruling your objection.

10 Thank you.

11 MR. STITES: May I redirect the question?

12 THE COURT: Yes.

13 Q. (BY MR. STITES:) You are Calvin Gregory Scott?

14 MR. DURDEN: I re-urge my objection, your Honor.

15 A. Yes.

16 THE COURT: If you are going to object, if you want me to

17 rule on it, you need to stand and make your objection.

18 MR. DURDEN: Thank you, your Honor.

19 THE COURT: Your client has answered because you were not

20 on your feet.

21 MR. DURDEN: Thank you.

22 THE COURT: Thank you.

23 It is overruled in any case.

24 Q. (BY MR. STITES:) Mr. Scott, you are married to Bette Jill

25 Scott; is that true?

Kelvin E. Johnson, CSR 12

2 Amendment privilege not to answer the question.

3 THE COURT: Overruled.

4 I didn't mean for you to object -- When I said, "be

5 vigilant", I mean when you hear a question that deals with the enforcement

6 that might incriminate your client, then that's when I think that you need

7 to object. But you don't have to object to every question proposed to your

8 client. Because I will overrule them as we go along. And all you are

9 doing is making the proceedings lengthy in nature and repetitive.

10 MR. DURDEN: I don't wish to tire the Court. I wish then

11 to make a running bill. It's my position that my client should not even be

12 able to be called as a witness under the 5th Amendment. I understand the

13 Court has overruled my objection on that. I would ask the Court then to

14 make a running bill as to every question asked of my client, of Mr. Scott,

15 that I would be objecting to the question on the basis of the 5th Amendment

16 privilege, and that your ruling would be overruled until I -- if I make no

17 objection and then if I make -- re-urge the objection that you can rule on

18 it.

19 THE COURT: I don't believe there's any such thing as a

20 running bill. But what I will do is give you an opportunity to make a bill

21 at the conclusion of the hearing to that effect. But I don't want to

22 impose any kind of chilling effect on appropriate objections which deal

23 with the enforcement and may tend to incriminate your client.

25 MR. STITES: May I proceed?

Kelvin E. Johnson, CSR 13

2 Q. (BY MR. STITES:) Mr. Scott, you are the same Calvin Gregory

3 Scott named as Respondent in the temporary orders signed on March 21st,

4 2014; is that true?

5 MR. DURDEN: I object, your Honor, on the basis of the

6 5th Amendment privilege. That's one of the elements he has to prove. My

7 client does not have to establish --

8 THE COURT: Sustained.

9 Q. (BY MR. STITES:) Well, are you the Respondent in this divorce

10 case, Mr. Scott?

11 MR. DURDEN: Your Honor, I object again on the 5th

12 Amendment privilege. He doesn't --

13 THE COURT: Overruled.

14 A. Yes.

15 MR. STITES: Based on that, can the record reflect that

16 we have identified Calvin Gregory Scott, the person that's now testifying,

17 as the one in the same Respondent in the Motion for Enforcement and for

18 Sanctions indicated in the pleading of August 28th and reference to the

19 order of March 21st, 2014.

20 THE COURT: The record reflects what the record reflects.

21 MR. STITES: Thank you very much.

22 THE COURT: You are welcome.

23 Q. (BY MR. STITES:) Mr. Scott, Mr. Durden represents you today;

24 is that true?

25 MR. DURDEN: No objection, your Honor.

Kelvin E. Johnson, CSR 14

1 A. Yes.

2 Q. He represented you on August the 25th, 2014; is that true?

3 MR. DURDEN: I would object, your Honor, on the 5th

4 Amendment privilege.

5 THE COURT: Overruled.

6 MR. DURDEN: I'm going to object on the basis of

7 relevancy.

8 MR. STITES: Well, like I said in my opening statement,

9 on August the 25th, 2014, Attorney Durden sent me a lengthy fax, email,

10 regular mail letter --

11 THE COURT: Do you have a legal response to the legal

12 objection of relevance?

13 MR. STITES: The answer is "yes". His agent, Mr. Durden,

14 made admissions in a written letter to me of August the 25th, where he

15 admits he, Mr. Durden, admits the allegations contained in the contempt

16 pleading.

17 MR. DURDEN: That's why the 5th Amendment applies, your

18 Honor. First of all, because he's trying to establish that an agency

19 relationship exists. Secondly, the -- I would ask the Court to take -- We

20 are taking up, my understanding is, the contempt issue. Which is the

21 quasi-criminal action, not the sanctions action, only the quasi-criminal

22 action.

23 THE COURT: It's all in the motion.

24 MR. DURDEN: I understand that, your Honor. But the --

25 My position is this witness can not be asked questions as to whether he

Kelvin E. Johnson, CSR 15

1 made statements or made statements through us.

2 THE COURT: The witness may answer the question as to

3 whether you represented him on a date, sir.

4 Overruled.

5 MR. DURDEN: Thank you, your Honor.

6 MR. STITES: May I redirect the question?

7 THE COURT: Yes.

8 Q. (BY MR. STITES:) Mr. Scott, did Mr. Durden represent you on

9 August the 25th, 2014?

10 A. Yes.

11 Q. Did he have the right as your lawyer on August 25th, 2014, to

12 state your legal position with respect to issues in this divorce case?

13 MR. DURDEN: Objection, 5th Amendment privilege.

14 MR. STITES: I would really think that that's obviously

15 inherent with everything that we have happening here. I think it's a fair

16 question.

17 THE COURT: Let's go go off the record.

18 (At this time a discussion was held off the record, after which 19 the Proceedings continued as follows:) 20 (At this time Movant's Exhibit 21 No. 1 was marked for identification, after which, the Proceedings continued 22 as follows:)

23 THE COURT: Mr. Stites has offered Movant's 1 in the form

24 of a letter from The Durden Law Firm dated August 25th of 2014.

25 Mr. Durden, any objection as to the admission of Movant's

Kelvin E. Johnson, CSR 16

1 1?

2 MR. DURDEN: Yes, your Honor. I object to this letter as

3 not being the admission of the alleged contemptnor. I object to this

4 letter as being hearsay. And I object on the 5th Amendment privilege.

5 MR. STITES: May I respond?

6 THE COURT: Yes.

7 MR. STITES: I think that I have established, I don't

8 think I really need to establish, that on August 25th, Mr. Durden was

9 Mr. Scott's lawyer, his agent. And he has the right to speak for him, as

10 agent. And any admissions that the lawyer made with regard to the facts

11 relevant to this case, which these admissions clearly are right spot on,

12 are put on Mr. Scott. So that the objection that was made is not a good

13 objection. He's relied on this, and even argued this. He doesn't deny it

14 happened.

15 THE COURT: The objection is overruled.

16 MR. DURDEN: Your Honor, briefly, one further thing.

17 Relevancy as to this letter. This letter does not state

18 that Mr. Scott in anyway -- It does not state --

19 THE COURT: Overruled as to relevance.

20 Anything else?

21 MR. DURDEN: Yes. Your Honor, I object because it's not

22 a statement that the alleged contemptnor --

23 THE COURT: What's your legal objection?

24 MR. DURDEN: There's no showing of an adoption of this

25 statement by the principal.

Kelvin E. Johnson, CSR 17

1 THE COURT: Overruled.

2 Anything else?

3 MR. DURDEN: I object on the basis of the 5th Amendment

4 privilege.

5 THE COURT: You did already. And I overruled it.

6 Anything else?

7 MR. DURDEN: No, your Honor.

8 THE COURT: It's admitted.

9 MR. STITES: Could I ask the Court to do two things:

10 Number 1, to look at the third page of this document, the Texas Trust

11 Credit Union membership application, to wit the account that was opened

12 with the $35,000.00 that wasn't put in Mr. Durden's trust account, and draw

13 your attention to the fact at the very top of the page under the account

14 number it says, "Ownership Type: Single Party". If you look down you see

15 the signature of Calvin G. Scott.

16 THE COURT: I see that.

17 MR. STITES: Thank you very much. Could I also draw --

18 This concerns the issue of the sanctions. Could I also direct the Court's

19 attention to the second paragraph of the letter, Page 1, "Accordingly, my

20 client has accessed community funds pursuant to Texas Family Code Section

21 1. -- 3.102 for litigation."

22 THE COURT: "Expenses".

23 MR. STITES: If you look at that section, which I have,

24 that has not a darn thing to do with litigation, litigation expenses. It

25 deals with sole management of community property in a marital context. So

Kelvin E. Johnson, CSR 18

1 the legal basis for which he has apparently recommended his client, or been

2 complicit with his client, is wrong. It doesn't deal with this at all. So

3 I would ask the Court to consider that.

4 And I'll also ask the Court to consider Exhibit Number 2,

5 which is my immediate response to Attorney Durden saying hold your horses.

6 Where is my "hold your horses" letter?

7 (At this time Movant's Exhibit No. 2 was marked for identification, 8 after which, the Proceedings continued as follows:) 9

10 THE COURT: Any objection?

11 MR. DURDEN: Yes, your Honor.

12 Hearsay.

13 THE COURT: Sorry?

14 MR. DURDEN: Hearsay.

15 THE COURT: Mr. Stites?

16 MR. STITES: My letter -- I would be happy to testify.

17 It's my letter to him.

18 THE COURT: You are not a party to this case. So what's

19 your response?

20 MR. STITES: My response is: I wrote the letter to him

21 and it's a basis for my request for attorney fees and the basis for my

22 request that you take some action about this. I can certainly testify. I

23 took the oath. I can testify to firsthand information. I have firsthand

24 information. I would be happy to testify and swear that I sent this to

25 Attorney Durden. He's never denied it. And this objection is not very

Kelvin E. Johnson, CSR 19

1 well made.

2 I'll testify to my attorney fees too, please.

3 THE COURT: It is hearsay. So the objection is well

4 made.

5 It's an out of Court statement, not made by a party,

6 offered to prove the matter asserted within the statement. That's clear

7 hearsay. And I don't hear any exception that you cite.

8 MR. STITES: Well, I'll be happy to testify to my letter.

9 That that will make it easier, your Honor. And I was sworn. At the

10 appropriate time, whatever that appropriate time is.

11 THE COURT: Go ahead. Testify from the table.

12 MR. DURDEN: Your Honor, it would be the same objection,

13 whether he puts it in paper or if he testifies to what he said earlier.

14 It's still hearsay.

15 THE COURT: With respect to attorney fees, it's not.

16 MR. DURDEN: If it's a limited offer, your Honor --

17 THE COURT: That's what he just said in his argument,

18 that it was being admitted for the purpose of sustaining attorney fees in

19 this case.

20 MR. STITES: Well, it's obviously so. We've already

21 established what happened by Durden's Exhibit 1 --

22 MR. DURDEN: I would object to any rule because this was

23 made as a general offer. Which, again, it could be used for evidence for

24 all purposes. If this is being offered and it's admitted solely as to the

25 issue of attorney fees, that's a separate issue. And I don't object on

Kelvin E. Johnson, CSR 20

1 that basis.

2 MR. STITES: Suits me.

3 THE COURT: It's admitted.

4 MR. STITES: May it please the Court --

5 MR. DURDEN: For the limited purpose, your Honor?

6 MR. STITES: May it please the Court --

7 THE COURT: I can read it myself. It doesn't please the

8 Court to read it to me --

9 MR. DURDEN: It --

10 THE COURT: Can you just stop talking when I'm talking?

11 Is that possible.

12 Do you know how hard that is -- And I don't know why we

13 are having a record. But if we are having a record made, please be

14 courteous enough to allow him to do it in a controlled way.

15 Mr. Durden, do you have a comment you want to make?

16 MR. DURDEN: Just briefly. When you said, "It's

17 admitted", my understanding is: It's admitted for the limited purpose.

18 THE COURT: Exactly.

19 MR. DURDEN: Thank you.

20 THE COURT: Anything else, Mr. Stites?

21 MR. STITES: I would like to testify to my legal fees.

22 THE COURT: Go ahead.

23 MR. STITES: Do you want to hear the background about the

24 fact that I was an Eagle Scout and Board Certified --

25 THE COURT: I wouldn't belief it if you testified to it,

Kelvin E. Johnson, CSR 21

1 even under oath.

2 MR. STITES: That I'm an Eagle Scout?

3 THE COURT: I would like to dispense with testimony I've

4 heard before.

5 Mr. Durden, do you want to stipulate to --

6 MR. DURDEN: I stipulate, your Honor --

7 THE COURT: Okay. Thank you.

8 MR. DURDEN: -- I stipulate to his qualifications.

9 MR. STITES: I'm Robert Stites. I'm Board Certified in

10 Family Law. I have been Board Certified since 1984. A month or so ago I

11 just recertified in Family Law for an additional five years. I've been

12 licensed by the Supreme Court --

13 THE COURT: I think he stipulated to all of that.

14 MR. STITES: Thank you very much.

15 Judge, I received Exhibit Number 1 by fax, by hard copy,

16 by certified mail, and I believe by email too. But certainly by those

17 three. I received that on August the 25th, Exhibit 1. Exhibit 2, I sent

18 by email to Mr. Durden on the next day, August the 26th, expressing,

19 obviously, that I was unhappy -- we were unhappy, and saying please do not

20 force me to seek relief from the 324th District Court. Which,

21 unfortunately, we were required to do.

22 I have expended seven and a half hours of my time on

23 this. I have prepared proposed orders. I have reviewed the documents.

24 I've prepared the pleadings. I've caused Mr. Scott to be served. By the

25 way, the service fee from the private process server was $150.00. He was

Kelvin E. Johnson, CSR 22

1 served on September 3rd at 9:20 a.m., it looks like. The filing fees to

2 file the contempt motion, which I've prepared, Motion for Enforcement, is

3 $31.00.

4 I spent a lot of time talking to my client about this.

5 I've been here at the Court's attendance, I've had nothing else to do

6 except this matter, since 8:30 this morning. I've been here since 8:30

7 primarily --

8 THE COURT: Is all of that included in the seven point

9 five?

10 MR. STITES: Yes. I anticipate that there will be some

11 time after this to prepare whatever order comes from this. There's going

12 to be some order. That there will be some time, probably an hour or so to

13 prepare it, send it to Todd Durden, whatever objections, get it signed by

14 you. So that would be an additional hour. So I charge at an hourly

15 billing rate of $350.00. That's fair, just and reasonable for a lawyer

16 with my experience and my competence, having been a Family Law Attorney for

17 38 years or so. That's comparable to other attorneys with my skill,

18 competence and ability in Tarrant County. I'm asking for attorney fees of

19 $2,750.00 to be taxed, and I'm asking it be to taxed against monies under

20 Mr. Scott's control. He gets money under his control. Jill gets in 3K a

21 month. I'm asking it not to be just taken out of community funds. That

22 punishes Jill for something she shouldn't be punished for. Mr. Scott has

23 money under his control. He has a credit card. He has a Wells Fargo

24 credit card, perhaps he can put fees, attorney fees, on. I'm asking that

25 he pay $150.00 for the service fee and $35.00 for the filing fee.

Kelvin E. Johnson, CSR 23

1 Everything I've talked about I have firsthand knowledge

2 of. All of the attorney fees are based on my understanding of what a

3 reasonable attorney fee of a lawyer of my competence, skill and ability in

4 Tarrant County.

5 That's all. Thank you.

6 THE COURT: Mr. Durden.

7 MR. DURDEN: Thank you, your Honor.

8 May it please the Court.

10 CROSS-EXAMINATION

12 BY MR. DURDEN:

13 Q. Let me see if I understand your testimony. Seven and a half

14 hours was for drafting, filing, preparing and for the hearing on the motion

15 of enforcement and sanctions; is that correct?

16 A. Talking to the client, reviewing the exhibits, preparing the

17 proposed Court Order, being present today since 8:30, preparing and talking

18 with Jill a number of times about this, seeing if there can be any

19 resolution without a Court hearing. And then I'm going to spend an hour or

20 so of time after today preparing an order. So, yes, to all of those

21 conditions.

22 Q. All right. Let me show a document to you. Did you receive

23 this document?

24 A. You are handing me a fax, probably a hard copy, you send me

25 things -- You send me three copies of things. I don't recall,

Kelvin E. Johnson, CSR 24

1 specifically. I can't believe you would hand something to me and make some

2 representation that you sent it, if you didn't, in fact, send it. So I

3 don't really recall.

4 Q. Is that your fax number?

5 A. (817) 336-7583 is my fax.

6 Q. Does it show that this fax was received?

7 A. It does.

8 Q. Okay. Now, in spending seven and a half hours, wouldn't it be

9 customary to review the correspondence received on the motion before you

10 actually go to Court on it?

11 A. Let me see. Well, the answer is: We filed our pleading on

12 August the 28th. This was sent to me August the 29th. Your client was

13 served September 3rd. Responding to that, I'm not sure that I did respond,

14 specifically, to it. The answer to your question is "no".

15 MR. DURDEN: Let me mark this as an exhibit.

16 (At this time Respondent's Exhibit No. 1 was marked for identification, 17 after which, the Proceedings continued as follows:) 18

19 MR. DURDEN: Your Honor, I offer Respondent's Exhibit 1.

20 THE COURT: Any objection?

21 MR. STITES: It's not relevant.

22 MR. DURDEN: Your Honor, under the Rule of Optional

23 Completeness you have the first letter. You have his response. This would

24 be my response to his response.

25 THE COURT: How is that not relevant, Mr. Stites?

Kelvin E. Johnson, CSR 25

1 MR. STITES: Well, it deals with the real estate

2 appraisal, which has nothing to do with this. You have to look at it. I

3 don't know it's relevant. I would object to it.

4 THE COURT: It's admitted over objection. I find it

5 relevant.

6 Q. (BY MR. DURDEN:) Mr. Stites, you had already prepared this

7 motion when you spoke to me on the phone, hadn't you?

8 A. I don't remember talking to you on the phone on August the

9 29th --

10 Q. August the 28th when you filed it, you had already prepared it,

11 hadn't you?

12 A. When I filed it I had already prepared it, yes.

13 Q. Let me restate the question.

14 That letter is dated August 29th.

15 A. Fax and there should be a letter too at the same time. I

16 typically do. I don't recall you and I talking about any of this at that

17 time.

18 MR. DURDEN: We would object as nonresponsive.

19 THE COURT: Sustained.

20 Q. (BY MR. DURDEN:) Now, the day before at about 4:50 p.m., you

21 and I spoke on the phone.

22 A. I don't remember that. I'm sorry.

23 Q. You filed this electronically at or about the same time we were

24 on the phone, didn't you?

25 A. I don't recall being on the phone. The file mark is August the

Kelvin E. Johnson, CSR 26

1 28th, 2014, at 5:11 p.m., e-faxed -- e-filed --

2 Q. Do you remember --

3 A. I don't stay until 5:00 in the evening. John Eck takes care of

4 this.

5 Q. My question to you was: Do you remember what time of day it

6 was that we spoke on the phone?

7 A. I don't recall speaking to you, Todd. I'm sorry.

8 Q. At the time you filed this, you did fax it and -- or any

9 other -- anything else that would give me to understand that it had been

10 filed until I received it by certified mail; is that correct?

11 A. I'm sure we sent it to you by certified mail shortly after it

12 was filed. If you are on the e-filing system you get a copy of this as a

13 matter of course, I do. Some lawyers are and some lawyers aren't. But the

14 e-filing if you're on that system --

15 MR. DURDEN: Objection. Nonresponsive.

16 THE COURT: Sustained.

17 Q. (BY MR. DURDEN:) I was not e-served with a copy of that

18 motion, was I?

19 A. I don't have any knowledge about that. You should have been.

20 I get regularly served e-filings from my --

21 MR. DURDEN: Objection. Nonresponsive. Everything after

22 "I don't know".

23 THE COURT: Sustained.

24 Q. (BY MR. DURDEN:) Now, Mr. Stites, in addition to the Motion

25 for Contempt that was set and we heard today, we had a pretrial conference;

Kelvin E. Johnson, CSR 27

1 isn't that correct?

2 A. I had requested a pretrial conference today, yes.

3 Q. We had a hearing on that matter; is that correct?

4 A. We spent a little bit of time on that.

5 Q. Now, in the exhibit that you offered to the Court, I had asked

6 for your help in cooperating with me in order to get an appraisal on the

7 house; isn't that true?

8 MR. STITES: I don't know what relevance that has with

9 the contempt pleading. So I object.

10 THE COURT: What's the relevance?

11 MR. DURDEN: Your Honor, as to the issue of attorney

12 fees.

13 THE COURT: Sustained as to relevance.

14 MR. DURDEN: I'm sorry. Okay.

15 Q. (BY MR. DURDEN:) Is it usual and customary in Tarrant County

16 for attorneys to agree to matters which are not truly in dispute?

17 A. Todd, every situation is different. Dealing with you has been

18 difficult. Sometimes you say things that I find out later are not correct,

19 sadly.

20 MR. DURDEN: Objection. Nonresponsive.

21 THE COURT: Sustained.

22 Come on you guys. Let's get through this, all right?

23 It's about attorney fees. Did he spend it? Was it reasonable? Was it

24 necessary? Let's go.

25 MR. DURDEN: Okay.

Kelvin E. Johnson, CSR 28

1 THE COURT: I'm leaving at noon for lunch.

2 MR. STITES: Sounds good to me.

3 MR. DURDEN: I'll pass the witness, your Honor.

4 MR. STITES: Do you want any other evidence with respect

5 to the underlying contempt motion?

6 THE COURT: No.

7 MR. STITES: Is there any issue with the fact that

8 Mr. Calvin Gregory Scott who testified is, in fact, the same Calvin Gregory

9 Scott, who is the Respondent --

10 THE COURT: There's absolutely no issue. It's on the

11 record.

12 MR. STITES: I think that you understand what has brought

13 us here and why we've had to do this. I think you understand that there

14 wasn't any resolution to this until you heard it, based on the statements

15 that Durden has made to you.

16 I wish you would consider the documents that he submitted

17 to me as opposed to not necessarily the things that he said here today.

18 MR. DURDEN: May I add something, just in closing.

19 THE COURT: Uh-huh.

20 MR. DURDEN: There's usually four points we are supposed

21 to submit to the Court for the Court to consider in setting attorney fees;

22 usual and customary, reasonable and necessary. My question would be: What

23 was really necessary in this case, in light of this -- of this

24 misunderstanding or disagreement between the parties. And what's the

25 appropriate resolve. I would say as far as usual and customary goes, I

Kelvin E. Johnson, CSR 29

1 think the Court, under Chapter 38 of the Civil Practice and Remedies Code,

2 can take Judicial Notice of that, and also the practice here in Tarrant

3 County.

4 We do have a couple of other motions.

5 THE COURT: You are going to have to reset them. They

6 are not going to get heard today.

7 MR. DURDEN: Thank you very much, your Honor.

8 MR. STITES: May I respond to that quickly and then shut

9 up?

10 THE COURT: Yes.

11 MR. STITES: Your Honor, this order says neither party

12 will access or deplete, then it lists some things, Texas Trust CD's. Then

13 it says, "signed written agreement of both parties or order of the Court."

14 That is as clear as a bell. And Attorney Durden is arguing to you as a

15 lawyer an hour ago that it is not clear. If that doesn't indicate to you

16 that we had to come to Court to resolve this --

17 THE COURT: All right. I will render by letter to y'all,

18 hopefully, by tomorrow, after I think about the testimony, the arguments,

19 and the evidence that's been admitted. And if I don't render by Friday,

20 somebody needs to call me, okay?

21 MR. DURDEN: Thank you, your Honor.

23 MR. DURDEN: Again, you have taken Judicial Notice of the

24 file. I would ask that you to find that there is no real injustice that is

25 at issue in this case.

Kelvin E. Johnson, CSR 30

1 Thank you.

2 THE COURT: Thank you.

3 (Close Of Proceedings)

Kelvin E. Johnson, CSR 31

1 C E R T I F I C A T E

3 STATE OF TEXAS )( 4 )( COUNTY OF TARRANT )( 5

6 I, KELVIN E. JOHNSON, Official Court Reporter in and for the 324th

7 Associate Court, Tarrant County, Texas, do hereby certify that the above

8 and foregoing typewritten pages contain a full, true and correct

9 transcription of my shorthand notes requested by counsel for the parties

10 upon the occasion set forth in the caption hereof, as reduced to

11 typewriting by me or under my direction.

12 I further certify that the total cost for the preparation of this

13 Reporter's Record is $____________________ and was paid/will be paid by

14 _______________________________________.

15 WITNESS my hand this the __3rd______ day of __October______, A.D.,

16 2014.

22 ________________________________

23 Expiration Date: December 31st, 2015 Official Court Reporter 24 324th Associates Court, Tarrant County, Texas 76196-0211 25 (817) 884-1192

Kelvin E. Johnson, CSR Aut:; ?G 2014 2:03PM Durden Law firm 817-431-0096 page 2

DURDENLAWFmM 131 E. Vine St. Office.' 817/431-0099 Todd A. Durden, Esq. Keller, TX 76248 Fax: 8171431-0096 dur denLawyer@au.net www.thedurdenlawfirm.com

Robert T. Stites, Esq. August 25, 2014 933 West Weatherford st. Via Fax: 817-336-7583 Fort Worth, Texas 76102 Via First Class Mail

Re: ITMOTMO Bette Jill Scott and Calvin Gregory Scott Cause No. 324-551602-14

Dear Mr. Stites:

We are in receipt of your correspondence dated August 20, 2014, wherein you present a counter offer to the settlement offer Mr. Scott made in mediation with Dale O'Neal. My client cannot accept this settlement offer. So, as it stands, the parties are still quite a bit off in their settlement positions.

Accordingly, my client has accessed community funds pursuant to Texas Family Code Section 3,102 for litigation expenses. Specifically, MegaFlex CD, identification number 155517-90, was cashed today for a value of $70\089, One half of the total, $35,042, is deposited into my lOLTA account, to be applied to litigation expenses. The remainder has been deposited into a new Texas Trust account, account number 404797-30 in the names of Mr. and Mrs. Scott. Please see the attached documentation from Texas Trust Credit Union detailing these transactions.

I look forward to your cooperation in minimizing the costs and attorney fees necessary at this juncture. First, an appraisal will need to be done of the house, and of course, the appraiser will need access to the house in order to conduct &'1 appraisal. The differences in values between the parties necessitate a professional appraisal. I would appreciate your cooperation in allowing access to the house such that a motion and hearing is not necessary.

Further, the contents of the house need to be valued. My client wishes for a video recording to be made of a walkthrough of the house, and wishes to be present when it is made. TJ:l1.S is to assure him that contents have not been taken from the house, and also form a basis for an appraisal of the contents of the home. Certamly the household goods and furnishings in a home worth half a million dollars are not without value, but no value for these items is reflected upon your client's settlement proposal.

EXHIBIT Aug 25 2014 2:03A'1 Durden Law firm 817-431-0096 page 3

To: Robert T. Stites. Esq. Acgust 25, 2014 ?rom: Todci A. Durden Page 2 of 2

Another difference that needs to be explored is the value of survivor benefit annuity. As you are probably aware, Mrs. Scott enjoys a 75% survivor annuity on Mr. Scott's pension. An actuary will need to be employed to properly value this asset, and he will be presented for deposition. Along with the deposition of the actuary, the deposition of the CPA will need to be taken. You have taken the position that the amount of monies used by Mr. Scott for his addiction is approximately $ 20,000.00. We believe the true amount is $10,000.00, and this will be borne out by a deposition of Mr. Rice.

Further, a valuation on the country membership will need to be performed by a professional. Although it cannot be sold, it does have value, at least to the parties. The value may have to be set at replacement value, but apparently neither party wishes to give it up. My client is willing to take the country club membership at the cost value.

Finally, my client would like access to the family photos over 40 years of marriage. It is his intent to take the hard copies and digitize them, which he may be able to do on his time and with his equipment. In any event, the pictures over the 40 years of marriage are valuable, and he desires to enjoy access to them as Mrs. Scott currently does.

Thank you for your attention to this letter and please respond as to the appraisal of the house at your earliest convenience.

Sincerely,

Todd A. Durden

TAD/jcg

Enclosur es: As Stated

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ltcct **~***"'J\'*17 Eff: oa/25/H. Data' 08/25/14 Tll;: 1249 ':'ilI.tl: 1: 07pm Do~ Number: ~e36956

Deposi.t to MECA FLEX CD 90 Prev Ba1: 70,145.96 Maturi.ty date: 11/13)14 Alu.o.unt; 20.76 New Bal: 7Q/166.74 Seer: #326696 Comment for MEGA FLEX CD 90 ;..:pl:. Ea:r:ned O. 4.!H OB/01(14 to 09/24/14 Sh"re Di v-idend 2D.76

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Eft: 08(25(14 Date: 08/25/14 T11:: 1249 Time; 1: 09p"" DOC Number: 98369-69

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Go to Texa~rrustCJ.org/survey and enter the following response code: WJ-RXRHJ-19 'I:'i:* A!JQ 2S 2014 2:03PM Durden Law firm 817-431-0095 page 1

DURDEN LAW FIRM

13 i E. Vine St. Phone 817/431-0099 Todd A. Durden, Esq. Keller, TX 76248 Fax 817/431-0096 durdenlawyertiiott.net l1-Ww. thedur denlawfirm .com

Robert T. Stites, Esq. Fax: 817/336-7583 933 West Weatherford St. Phone: 817/336-7577 Fort Worth, Texas 76102 Sent on August 25. 2014

Copy by regular mail: Yes No. of pages including cover:_9_

FA){ COVER SHEET I The information contained in this facsimile transmission is confidential and may be privileged I under the attorney/client privilege recognized under Texas and Federal law. It is intended for use I by the above-named recipient only. If for some reason this transmission is not received by the, above-named recipient, you are hereby put on notice that any dissemination, distribution, I publication or copying of this communication is prohibited. If you have received this communication in error, please call the sender at 817/431-0099 (you may call collect); we will arrange to have the documents you have received destroyed or returned to us at no cost to you.

Re: Cause No, 324-551602-14, ITMOMO of Scott

Enclosed herewith please find correspondence from Mr. Durden in connection with the above referenced matter.

Sincerely.

Carmen Griffith Legal Assistant to Todd A. Durden

Enc!osure: As stated above

cc: Client (wI enc's) Via ernail 3S2.~1- In the Matter of the Marriage of Scott https://Imil.google. com/mail/u/ Ol?ui =2&ik=a0048a5 7de&vi ew=pt&se ...

I Robert Stites

In the Matter of the Marriage of Scott

Robert Stites Tue, Aug 26, 2014 at 2:48 PM To: durdenlawyer@att.net Cc: Jill Scott

Mr. Durden:My client and I have received your August 25, fax. I am surprised, frustrated and upset that you and Mr Scott would undertake to unilaterally violate provisions 6, 9, 10 and 11 of the mutual temporary injunction in effect. You and Mr. Scott have absolutely no right to negotiate a community property Certificate of Deposit for hypothetical future legal fees. You have cost the community estate lost interest on the CD and perhaps a penalty for cashing out early. The documents you sent me indicate that a $35,000 account has been opened only in the name of Calvin Scott. Please restore these monies to the community estate immediately--including lost interest and penalty, if any. Please provide verification of this immediately. Please do not force me to seek relief from the 324 th District Court. Robert Stites

of 1 8/26/20142:48 PM DURDEN LAW FIRM 131 E. Vine St. Office: 817/431-0099 xid A. Durden, Esq. Keller, TX 76248 Fax: 817/431-0096 durdenlawyer@alt.net www.thedurdenlawfirm.com

Robert T. Stites, Esq. August 29, 2014 933 West Weatherford St. Via Fax: 817-336-7583 Fort Worth, Texas 76102 Via First Class Mail

Re: ITMOTMO Bette Jill Scott and Calvin Gregory Scott Cause No. 324-551602-14

Thank. you for calling my office yesterday to follow up on our recent exchange of correspondence. I understand your position that you do not believeO Mr. Scott has properly accessed community property for the purpose of the payment of attorney's fees and litigation expenses. I also understand your position that you oppose a real estate appraisal of the parties' principal residence.

As we discussed, no community funds have been expended. The certificate of deposit was closed. One half of this funds from the CD were left on deposit with the same bank. The other half were deposited into my trust account. I will preserve the funds in my trust account until a hearing is held in this matter, and Mr. Scott will not access the other half of the funds.

My legal assistant, Lorraine, will try to arrange a time for a hearing in this case with respect to these issues. I look forward to your cooperation to set this matter for a time and date convenient for the parties and the attorneys.

~tfl}~ Todd A. Durden

TAD/lmr

cc: Client Via Email DURDEN LAW FIRM 131 E.VineSt. Phone 817/431-0099 Todd A. Durden, Esq. Keller, TX 76248 Fax 817/431-0096 durdenlawyer@att.net www.thedurdenlawfirm.com

Robert T. Stites, Esq. Fax: 817/336-7583 933 West Weatherford St. Phone: 817/336-7577 Fort Worth, Texas 76102 Sent on August 29,2014

Copy by regular mail: Yes No. of pages including cover:_2_

FAX COVER SHEET The information contained in this facsimile transmission is confidential and may be privileged under the attorney/client privilege recognized under Texas and Federal law. It is intended for use by the above-named recipient only. If for some reason this transmission is not received by the above-named recipient, you are hereby put on notice that any dissemination, distribution, publication or copying of this communication is prohibited. If you have received this communication in error, please call the sender at 817/431-0099 (you may call collect); we will arrange to have the documents you have received destroyed or returned to us at no cost to you.

Re: Cause No. 324-551602-14, ITMOMO of Scott

Enclosed herewith please find correspondence from Mr. Durden in connection with the above referenced matter.

Lorraine M. Robinson Legal Assistant to Todd A. Durden

TADllmr

cc: Client Via email HP LaserJet M1536dnf MFP

Fax Confirmation Durden Law firm 8i7-431-0096 Aug-29-2014 1·26PM

Job Date Time Type Identification Duration Pages Result 5229 8/29/2014 1:25:47PM Send 8173367583 1: 06 2 OK

DURDEN LAw FiDI

III £.Vil1eSt. Photic 31"4:3Io01J99 Todd A. Du:den. E>q. lUlin. TX 762" fu 1l7lU 1.00116 dvI"''''~SIll'l·'''' - rMdwthNtrWf'""-COM

Robert T. Stites. Esq. Fa.: 8171336-7583 933 West WealhBl10rd S1. Phone: 8171336-7577 Fort WOrth. Texa. 76102 Senl on AWVl!t 29 2014

Copy by "'1lular mall: :iu No. of pag"" Including cov"':....i...

FAX COVER SHEET The Infot1na:lon contained In this lacUnUo tr&lWT'is.s.ion 1:1 eonteDnUal eee May be Il'Mlegecl vn40t tile,"'o""Jldin' ~, rOCGgoiAd undar T__ .nd Fot!enllow. n 111_ fer 1M

. pu~ca~n ~o~~~~~~:=:t!~ ! :r::.=n::"~:'l:~t.!,:; or copYll'li of tflia comt'lU1~ 11 prohibited. If you neve roceivod tl'lia comtnutticst.lOn In error, p1081O ca!llhu acnder 81 817/431-0099 (you may oa!1 coiled); we will arr e 10 ha'o'oIhtt docu/'TJcWIls u ha..,. tWcolvod dOl 04"rctlumed to \j,.a~ no ooat lD u.

Ro: Cause No. 32+~~1602-14. ITMOMO 01 scon DeBf Mr. Stees:

Enc!o..,d hlJrewith please find correspondence from Mr. Durden In connection wllh the above referenced matter.

lorraine M. Robinson Lugsi A$Si$l/lllt to Todd A. DUrrion

CC: Client Voaemail CERTIFICATE OF SERVICE

I hereby to certify the timely service of this Reporter’s sworn record in

accordance with Rule 9.5 of the Texas Rules of Appellate Procedure upon the

following:

Respondent: Hon. Jerome S. Hennigan, Presiding Judge 324th Judicial District Court Tarrant County Family Law Center 200 East Weatherford Street, 4th Fl. Fort Worth, Texas 76196-0232

Attorney for Robert T. Stites Real Party in Interest - Wife 933 West Weatherford Street Fort Worth, Texas 76102

Attorney for Mark J. Rosenfield Real Party in Interest - Husband 933 West Weatherford Street Fort Worth, Texas 76102

/s/ Todd A. Durden