Lee Arthur Bush v. Emma Jean Bush

CourtCourt of Appeals of Texas
DecidedSeptember 21, 2015
Docket05-15-00586-CV
StatusPublished

This text of Lee Arthur Bush v. Emma Jean Bush (Lee Arthur Bush v. Emma Jean Bush) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lee Arthur Bush v. Emma Jean Bush, (Tex. Ct. App. 2015).

Opinion

ACCEPTED 05-15-00586-CV FIFTH COURT OF APPEALS DALLAS, TEXAS 9/21/2015 5:54:39 PM LISA MATZ CLERK

NO. 05-15-00586-CV IN THE COURT OF APPEALS FILED IN FOR THE FIFTH DISTRICT OF TEXAS 5th COURT OF APPEALS DALLAS, TEXAS AT DALLAS 9/21/2015 5:54:39 PM LISA MATZ Clerk

LEE ARTHUR BUSH APPELLANT V.

EMMA JEAN BUSH APPELLEE

On Appeal from the 254“‘ District Court of Dallas County, Texas The Honorable James Martin (deceased) presiding

APPELLEE’S BRIEF Appellee’s attorney Thelma S. Clardy 610 Uptown Blvd. #2000 Cedar Hill, TX 75104 Tel: 972-298-6001 Fax: 972-432-7646 E-mail: thelclardy2012@att.net

NO ORAL ARGUMENT REQUESTED IDENTITY OF PARTIES AND COUNSEL

Appellant Apgellee Lee Arthur Bush Emma Jean Bush

Trial Counsel for Appellant Trial and Appellate Counsel for Agpellee Robert S. Widner Thelma S. Clardy 291 1 Turtle Creek Blvd. 610 Uptown Blvd. Suite 405 Suite 2000 Dallas, TX 75219 Cedar Hill, TX 75104

Appellate Counsel for Appellant Chad M. Ruback 81 17 Preston Rd.

Suite 300 Dallas, TX 75225 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ......................................... .. [1]

TABLE OF CONTENTS ................................................................ .. [2]

INDEX OF AUTHORITIES ............................................................ .. [3]

STATEMENT OF THE CASE ........................................................... .. [4]

RESPONSE TO ISSUES ON APPEAL ................................................... .. [5]

STATEMENT OF FACTS .................................................................. .. 1

ARGUMENT ................................................................................ .. 2 ARGUMENT RELATED TO ISSUE ......................................... 1 .. 2 ARGUMENT RELATED TO ISSUE 2; ........................................ .. 6 PRAYER ...................................................................................... .. 9 CERTIFICATE OF COMPLIANCE ..................................................... .. 10 CERTIFICATE OF SERVICE ........................................................... .. 10 APPENDIX A: COMPLETE CASE HISTORY REGISTER

[2] INDEX OF AUTHORITIES

Tex. Family Code, Sec. 6.711

Hyundai Motor Co. v. Alvarado, 892 S. W.2d 853 H"ex. I 995) In the Marriage of C.A.S., 405 S. VV3d3 73 (I'ex.App. ——Dallas 201 3)reh. Dismissed.

Pakdimounivong v. City ofArlington, 210 S.W.3d 401, 412 (Tex.App — Fort Worth 2006, pet. denied).

White HarriS—White, N0. 01-07-0052] -C V, V. 2009 WL 1493015 at *6 (Tex.App.— Houston [1“ Dist.] May 28, 2009, pezideniea) STATEMENT OF THE CASE

This is a divorce case initiated by Appellee, Emma Jean bush. Appellant, Lee Arthur Bush, is appealing certain parts of the division of property. After a bench trial before the Honorable James B. Martin, at which both parties were represented

by counsel, Judge Martin signed a written rendition on January 11, 2015 explaining his decision and making a division of the property. A Visiting judge signed the formal Final Decree of Divorce on February 26, 2015. Judge Martin died on April 19, 2015 after a lengthy battle against cancer.

[4] RESPONSE TO ISSUES ON APPEAL

RESPONSE TO ISSUE #1: The “Rule 11 agreement” relied upon by Appellant was made in a case that was initiated in 2002 but was voluntarily nonsuited by the parties some six years prior to the filing of the lawsuit at issue here. (RR 61). That agreement A signed by the lawyers in that case and not the parties — was made during the pendency of, filed in, and specifically referenced in that other cause. It has no relationship nor application to this cause. Thus, there was no agreement to be established in the case at bar. Furthermore, Appellant did not seek to enforce the whole agreement, nor did he prove that any part of the agreement had actually been performed.

The trial court did not commit reversible error in awarding certain property to Appellant. Appellant’s verbal testimony was insufficient to conclusively prove by clear and convincing evidence that the two pieces of realty were his separate property. Appellant admitted that he had “tracing” documents that supposedly proved his contention but his lawyer failed--or perhaps refused—to introduce them into evidence. Only after his trial lawyer withdrew, did Appellant as pro se file the documents with the Court, which was a dilatory and improper effort on his part to support his position.

RESPONSE TO ISSUE #2: Proposed findings of fact and conclusions of law were submitted to the court. The failure to issue findings of fact and conclusions of law was not a fatal error and did not prevent Appellant from knowing the reasons for the court’s ruling.

[5] STATEMENT OF FACTS

In March, 2013, Appellee filed her petition for divorce against appellant, to

which Appellant responded by filing a counter petition. (RR — 11-19; R— 25-37).

During the case, appellant at times represented himself but at the time of trial was

represented by counsel. During the pendency of the trial, appellee propounded

discovery to appellant but he submitted incomplete responses. Additionally,

appellee was required to respond to appellant’s groundless pleadings wherein he

sought to revive a 2002 case which was voluntarily nonsuited by both parties and

was never reinstated or appealed.

At the trial, at which the husband was represented by counsel, he failed to

provide clear and convincing evidence to support his argument regarding the

division of property.

Page 1110 THE ARGUMENT

I. APPELLANT’S ATTEMPT TO RAISE A DEFUNCT RULE 11

AGREEMENT FROM A NONSUITED CASE WAS PROPERLY REJECTED; HE FAILED TO INTRODUCE SUFFICIENT EVIDENCE AT TRIAL TO SUPPORT HIS CLAIM THAT THE TWO PIECES OF REAL PROPERTY WERE HIS SEPARATE

PROPERTY.

(Appellee ’s Response to Issue No. 1)

Appellant throughout the processing of this case at the trial court level, argued

that a Rule 11 agreement entered in an earlier divorce case initiated in 2002 by

Appellee deserved to be honored. He started his argument by initially filing a

motion to enforce a Rule 11 agreement, which had been entered in the earlier

2002 case. Cause No. DF-O2-20587-V (hereinafter referred to as the “2002

case”) (RR 38-46). In his motion, appellant argued that the Rule 11 agreement

should be enforced as a contract because of alleged adherence to said agreement

by both parties. (RR 39). In the 2002 case referred to by appellant, the parties

had voluntarily nonsuited the 2002 case in which they both signed the nonsuit

order which was signed on May 3, 2006 (RR 61). The nonsuit was never

appealed nor was any type of motion for new trial was filed. Thus, the case was

Page2I10 dead as of May 3, 2006 — over eight years ago! In response to Appe1lant’s

frivolous motion, Appellee filed a motion to deny relief and quash motion for

enforcement of property division (RR 56-60). In her controverting affidavit

attached to the motion, appellee made it clear that the purported Rule 11

agreement was null and void, as it was of no force and effect in this Case. (R 58).

At the trial court level, the Associate Judge initially issued a ruling

transferring the 2013 case to the 2002 case (RR 75), to which Appellee filed an

appeal (RR 76-77). Appellant was thus attempting to enforce compliance of an

agreement that died in the 2002 case when that case was nonsuited into the case at

bar. No Rule 11 agreement was entered in this case. This was made clear in

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Related

Mann v. Fender
587 S.W.2d 188 (Court of Appeals of Texas, 1979)
Hyundai Motor Co. v. Alvarado
892 S.W.2d 853 (Texas Supreme Court, 1995)
Brown v. Bailey
210 S.W.3d 397 (Missouri Court of Appeals, 2006)

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