No. 14-14-00208-CV

IN THE

FOURTEENTH COURT OF APPEALS

at Houston, Texas

––––––––––––––––––––––––––––––––––––

LETICIA B. LOYA, Appellant

v.

MIGUEL ANGEL LOYA, Appellee

––––––––––––––––––––––––––––––––––––

Appealed from Cause No. 2012-32502 in the 

257th Family District Court of Harris County, Texas

________________________________________________________________

APPELLEE’S SUR-REPLY BRIEF 

________________________________________________________________

Randall B. Wilhite

State Bar No. 21476400

Grady Reiff

State Bar No. 24074941

FULLENWEIDER WILHITE, P.C.

4265 San Felipe, Ste. 1400

Houston, Texas 77027

713.624.4100

713.624.4141 Facsimile

ATTORNEYS FOR APPELLEE,

MIGUEL ANGEL LOYA

ORAL ARGUMENT REQUESTED 

ACCEPTED

14-14-00208-CV

FOURTEENTH COURT OF APPEALS

HOUSTON, TEXAS

2/9/2015 11:27:09 AM

CHRISTOPHER PRINE

CLERK

 FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS 2/9/2015 11:27:09 AM CHRISTOPHER A. PRINE Clerk
ii

TABLE OF CONTENTS

Page

TABLE OF CONTENTS........................................................................................ii

INDEX OF AUTHORITIES..................................................................................iii

SUR-REPLY TO APPELLANT’S CONTENTION REGARDING Sprague 

v. Sprague, 363 S.W.3d 788 (Tex. App.—Houston [14th Dist.] 2012, 

pet. denied)......................................................................................................... 1

PRAYER................................................................................................................. 5

CERTIFICATE OF COMPLIANCE...................................................................... 6

CERTIFICATE OF SERVICE ............................................................................... 6
iii

INDEX OF AUTHORITIES

Cases

Page

Arnold v. Leonard, 114 Tex. 535, 273 S.W. 799 (1925)...........................................3

Butler v. Butler, 975 S.W.2d 765 (Tex. App.—Corpus Christi 1998, 

no pet.) ..................................................................................................................4

Cearley v. Cearley, 544 S.W.2d 661 (Tex. 1976) .....................................................3

Frommer v. Frommer, 981 S.W.2d 811 (Tex. App.—Houston [1st 

Dist.] 1998, pet. dism’d).......................................................................................5

Gordon v. Gordon, No. 14-10-01031-CV (Tex. App.—Houston [14th 

Dist.] Nov. 29, 2011, no pet.) (memo op.) ...........................................................5

Loiaza v. Loiaza, 130 S.W.3d 894 (Tex. App.—Fort Worth 2004, no 

pet.) .......................................................................................................................4

Murff v. Murff, 615 S.W.2d 696 (Tex. 1981).............................................................5

Roach v. Roach, 672 S.W.2d 524 (Tex. App.—Amarillo 1984, no 

writ).......................................................................................................................3

Simpson v. Simpson, 727 S.W.2d 662 (Tex. App.—Dallas 1987, no 

writ).......................................................................................................................5

Smith v. Smith, 836 S.W.2d 688 (Tex. App.—Houston [1st Dist.] 

1992, no writ)........................................................................................................4

Sprague v. Sprague, 363 S.W.3d 788 (Tex. App.—Houston [14th 

Dist.] 2012, pet. denied)................................................................................ 1-2, 4

Constitution

Tex. Const. art. XVI, §15...........................................................................................3
iv

Statutes

Tex. Fam. Code §3.001..............................................................................................3

Tex. Fam. Code §3.002..........................................................................................3, 4

Other Sources

Black’s Law Dictionary (9th ed. 2009) .....................................................................2

Merriam-Webster.com, 2015, http://www.merriam-webster.com 

(7 Feb. 2015)..............................................................................................................3
Page 1 of 6

SUR-REPLY TO APPELLANT’S CONTENTIONS REGARDING

Sprague v. Sprague, 363 S.W.3d 788 (Tex. App.—Houston [14th Dist.] 2012, 

pet. denied).

Leticia’s claim in her Reply Brief that Sprague v. Sprague, 363 S.W.3d 788, 

801 (Tex. App. – Houston [14th Dist.] 2012, pet. denied), is “incompatible with 

Miguel’s contract right theory” is completely misplaced. (Reply Brief, p. 10). On 

the contrary, the Sprague case fully supports Miguel’s legal theories set forth in 

issues one and two of his Appellee’s Brief (Amended). The relevant time line in 

Sprague is as follows:

1. February 21, 1985 (before the Spragues got married): Mr. 

Sprague’s employer sent him a letter offering him “the option to defer payment of 

additional compensation if any should be awarded that year in connection with [the 

employer’s] planned merger.” Id. at 801. Mr. Sprague exercised this option and 

“elected to defer” this additional compensation. Id. at 801-802.

2. July 6, 1985: Robert and Deborah Sprague were married. Id. at 791.

3. August 20, 1985 (during the Sprague’s marriage): In accordance 

with Mr. Sprague’s election to defer the bonus payment(s), Mr. Sprague’s CEO 

sent him a letter “notifying [him] that he . . . had been awarded bonus 

compensation.” Id. at 801. This letter further stated, “This bonus will express our 

thanks to you in a tangible way for your contribution to the Company especially 

during the uncertainties of the past 18 months.” Id. at 801-802. Mr. Sprague’s 
Page 2 of 6

employer further stated that “the bonus with which [he] was credited in August 

1985 was intended to compensate him for work done in the preceding eighteen 

months”, of which sixteen and a half predated his marriage. Id. at 802.

4. August 21, 1985: Mr. Sprague received one-half of his deferred 

bonus. Id.

5. January 1986, 1987: Mr. Sprague twice received an additional onequarter of his deferred bonus. Id.

In light of the pre-marital bonus granted to Mr. Sprague, and which he 

elected to defer, this Court held that, based on these facts, a reasonable jury could 

have found that a portion of Mr. Sprague’s deferred bonus was his separate 

property and, therefore, remanded the case to the trial court for such a 

determination. Id.

Both the Texas Constitution and the Texas Family Code provide that a 

person has a separate-property interest in all property that the person “owned or 

claimed” before the marriage1

or acquired during the marriage by gift, devise or 

 

1

 Black’s Law Dictionary defines “claim” as, inter alia, “[a]n interest or 

remedy recognized at law; the means by which a person can obtain a privilege, 

possession, or enjoyment of a right or thing.” Black’s Law Dictionary (9th ed. 

2009).
Page 3 of 6

descent.2 Tex. Const. art. XVI, §15; Tex. Fam. Code §3.001. By statute (and by 

implied exclusion (see Arnold v. Leonard, 114 Tex. 535, 273 S.W. 799 (1925)), 

community property consists of all property, other than separate property, acquired 

by either spouse during marriage. Tex. Fam. Code §3.002.

Mr. Sprague’s exercise of his option to defer the payment of his bonus for 

work done prior to the marriage into subsequent years gave him his legal claim to

the bonus, which he brought into the marriage.3 Sprague, like the litany of other 

cases Miguel cites in his Appellee’s Brief, is, therefore, completely compatible 

with Miguel’s “property right theory,” which has, as its underlying premise, the 

principle that a court may only deal with property interests and not expectancies. 

To have a community property component, there must be some recognized 

property right that was acquired during the marriage (see, e.g., Cearley v. Cearley, 

544 S.W.2d 661, 662 (Tex. 1976); see also Tex. Fam. Code §3.002)) and, in order 

for a property interest to have a separate property component, there must be some 

 

2

 Merriam-Webster’s Dictionary defines “acquire” as “to come into 

possession or control of often by unspecified means.” Merriam-Webster.com (7 

Feb. 2015).

3

 See, e.g., Roach v. Roach, 672 S.W.2d 524 (Tex. App.—Amarillo 1984, 

no writ) (unmarried man entered into an option agreement pertaining to land, but 

the deed was placed into escrow and delivered after marriage; inception of title 

occurred at time of original option agreement, not when the deed was removed 

from escrow and delivered to husband, making the land his separate property).
Page 4 of 6

recognized property right that had its “inception of title” at a time other than during 

the marriage (see, e.g., Sprague, id. and Butler v. Butler, 975 S.W.2d 765, 768 

(Tex. App.—Corpus Christi 1998, no pet.) (husband’s post-divorce earnings from 

psychiatric practice could not be characterized as community property)). 

On the way out of his marriage, Miguel had not acquired any claim of right 

to his bonus, and, therefore, he had no property right to be divided, which Tex. 

Fam. Code §3.002 expressly requires. A divorce court cannot divide something 

that is not a property right acquired during marriage. Id.; Loiaza v. Loiaza, 130 

S.W.3d 894 (Tex. App.—Fort Worth 2004, no pet.) (“A spouse is only entitled to 

a division of property that the community owns at the time of the divorce” 

(emphasis added) (citing Smith v. Smith, 836 S.W.2d 688, 692 (Tex. App.—

Houston [1st Dist.] 1992, no writ)).

In summary, on the way into his marriage, Mr. Sprague had a claim of right 

to his bonus that he “elected to defer.” Bringing this Constitutionally supported 

claim into the marriage provided Mr. Sprague with a separate property right: the 

bonus plan was in place, and an option for payment had been offered and accepted.

Because Miguel did not acquire any property right to the 2011 Possible Bonus until 

it was declared and granted by his employer well after the parties were divorced, 
Page 5 of 6

no community property component ever existed in such bonus as a matter of law.4

If Miguel had carried with him (post-divorce) any legal right to the bonus (like 

what happens with retirement plans, stock option plans and other such legal 

entitlements that are ratably earned over time and paid into the future according to 

contractual promises and compensation agreements), Sprague would stand for the 

position that such “right” would have, at least in part, accrued during the marriage, 

and would be subject to division upon divorce. Miguel had no such right in the 

2011 Possible Bonus.

PRAYER

The summary judgment should be affirmed. Appellee respectfully requests 

this Court grant all other relief to which he may be entitled.

 

4

 That is not to say, however, that a trial court may not take the potential for 

a bonus to be paid into the future as a factor it could use in making a division of the 

estate of the parties. See Murff v. Murff, 615 S.W.2d 696, 99 (Tex. 1981); Frommer 

v. Frommer, 981 S.W.2d 811, 814 (Tex. App.—Houston [1st Dist.] 1998, pet. 

dism’d); Simpson v. Simpson, 727 S.W.2d 662, 664 (Tex. App.—Dallas 1987, no 

writ); see also, e.g., Gordon v. Gordon, No. 14-10-01031-CV (Tex. App.—

Houston [14th Dist.] Nov. 29, 2011, no pet.) (memo op.) (court considered 

disparity in income between parties and fact that wife had been out of workforce 

for 20 years).
Page 6 of 6

Respectfully Submitted,

FULLENWEIDER WILHITE, P.C.

4265 San Felipe, Ste. 1400

Houston, Texas 77027

713.624.4100

713.624.4141 Facsimile

By: /s/ Randall B. Wilhite____________

Randall B. Wilhite

State Bar No. 21476400

Grady Reiff

State Bar No. 24074941

ATTORNEYS FOR APPELLEE,

MIGUEL ANGEL LOYA

CERTIFICATE OF COMPLIANCE

Under Tex. R. App. P. 9.4(i)(3) as amended effective December 1, 2012, I 

certify there are 1,167 words within this document exclusive of those contained in 

the cover page, table of contents, index of authorities, signatures, certificate of 

compliance, and certificate of service, as tabulated by the computer program used 

with preparing this document.

By: /s/ Randall B. Wilhite____________

Randall B. Wilhite

CERTIFICATE OF SERVICE

I certify a true copy of the foregoing Appellee’s Sur-Reply Brief was served 

on each party’s lead counsel under the Texas Rules of Appellate Procedure as 

follows:

Date of service: February 9, 2015

Method of service: Via efile service

Lead Attorney: Richard R. Orsinger

Party: Leticia B. Loya

By: /s/ Randall B. Wilhite____________

Randall B. Wilhite