CourtListener 10292508•Tatiana Telegina v. Valadimir Nechayuk
Full text
In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-22-00383-CV
________________
TATIANA TELEGINA, Appellant
V.
VALADIMIR NECHAYUK, Appellee
________________________________________________________________________
On Appeal from the County Court at Law No. 3
Montgomery County, Texas
Trial Cause No. 17-11-14052-CV
________________________________________________________________________
MEMORANDUM OPINION
On July 20 or 21, 2017, Tatiana Telegina and Valadimir Nechayuk, both
Russian citizens, executed a “Marital Settlement Agreement for Dissolution of
Marriage” (“Dissolution Agreement”) before they filed a joint application on July
21, 2017, with the Russian Consulate seeking a divorce certificate. On August 22,
2017, the Russian Consulate granted a certificate of divorce to Telegina and
Nechayuk. On November 17, 2017, Telegina subsequently filed her Original Petition
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for divorce in the Montgomery County Court at Law. She later added claims for
post-divorce division of property, bodily injury, and breaches of contract.
Nechayuk filed his “Plea to the Jurisdiction, Motion to Dismiss, and Original
Answer,” contending the trial court lacked subject matter jurisdiction, as the parties
were already divorced. Following a Rule 308b hearing, the trial court agreed with
Nechayuk and determined the parties were effectively divorced in proceedings
carried out by the Russian Consulate which disposed of Telegina’s divorce claim.
Telegina proceeded with her claims for post-divorce division of property, bodily
injury, and breaches of contract. The trial court later granted two partial motions for
summary judgment for Nechayuk which disposed of all Telegina’s claims except
one, then dismissed Telegina’s sole remaining claim. Nechayuk’s attorney’s fees
claim was the sole matter tried to a jury. The jury awarded him: $816,871.50 for
defending against the divorce suit and mandamus proceedings; appellate attorney’s
fees totaling $300,000.00; and $10,641.00 in costs. The trial court signed a Final
Judgment consistent with the jury’s findings, with the appellate attorney’s fees being
contingent upon Telegina’s unsuccessful appeal.
In 102 issues, Telegina appeals the trial court’s Final Judgment and complains
about several interlocutory orders. Nechayuk responds that Telegina’s Brief fails to
comply with the Texas Rules of Appellate Procedure’s briefing requirements, and
has thus, waived her issues. For the reasons discussed below, we affirm the trial
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court’s judgment, except as to appellate attorney’s fees. Since we conclude that the
evidence is insufficient to support $300,000.00 for appellate attorney’s fees, we
sustain issues ninety-four and ninety-five in part. Thus, should Nechayuk timely
accept our suggested remittitur of $145,000.00, we will reform the trial court’s
judgment and affirm the judgment as reformed. Should Nechayuk reject the
remittitur, we will reverse and remand for a new trial only on the issue of appellate
attorney’s fees.
I. INITIAL MATTERS: THE RECORD AND WAIVER
Since September 18, 2018, Telegina has acted pro se. Despite the trial court’s
September 12, 2018 ruling determining that the parties were divorced in August
2017, she persisted in filing pleadings, motions, and discovery about claims the trial
court had already disposed of previously. The filings often spanned over a hundred
pages, and she repeatedly moved for “reconsideration” of the trial court’s rulings.
Telegina also filed two petitions for writ of mandamus in this Court, which we
denied. See In re Telegina, No. 09-22-00162-CV, 2022 WL 2719709, at *1 (Tex.
App.—Beaumont July 14, 2022, orig. proceeding) (mem. op.) (complaining of the
trial court’s denial of her request to depose Nechayuk and his attorney on the issue
of attorney’s fees); In re Telegina, No. 09-19-00133-CV, 2019 WL 1976481, at *1
(Tex. App.—Beaumont May 2, 2019, orig. proceeding) (mem. op.) (complaining of
the trial court’s granting of temporary protective orders limiting the discovery to: the
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validity of the parties’ marital settlement agreement; claims that Nechayuk violated
the settlement agreement; and claims for partition of undivided marital assets).
The Clerk’s Record in this appeal spans twenty-three volumes, one
supplemental volume, and exceeds 39,000 pages. 1 The Reporter’s Record includes
twelve volumes and one supplemental volume. Telegina’s Brief raises what she
labels as “102 issues,” contains no citations to the record other than referencing the
dates motions or orders were filed, and in support of each of her points, she
“incorporates by reference” legal arguments she made in trial court filings. She also
fails to explain how she preserved error on each of her issues.
Generally, we liberally construe an appellant’s pro se brief. See Giddens v.
Brooks, 92 S.W.3d 878, 880 (Tex. App.—Beaumont 2002, pet. denied) (“pro se
1At one point, the trial court described the state of the record in this matter as
follows:
Over the span of 5 years of litigation in this court the Petitioner has
represented herself pro se for a large majority of the time. She has filed
6 amended petitions, 3 motions to recuse the trial judge, at least 5
motions to hold the opposing party in contempt and has unsuccessfully
sought a writ of mandamus from an appellate court. After two motions
to recuse the trial judge were denied, the trial judge voluntarily recused
herself in October 2020 after the filing of the third motion to recuse her.
The undersigned judge was assigned to preside and has presided over
the case since that time. As of January 24, 2023 the clerk’s file for this
case contains 862 documents that include 44,189 pages, the large
majority of which have been filed by Petitioner. It is the most
voluminous civil file among active or disposed cases filed in
Montgomery County since January 1, 2017. It is over l.5 times larger
than the next largest file.
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pleadings and briefs are to be liberally construed[]”); see also Senegal v. Mr.
Transmission, No. 09-22-00377-CV, 2023 WL 6631943, at *3 (Tex. App.—
Beaumont Oct. 12, 2023, pet. denied) (mem. op.) (same). Still, a pro se litigant must
comply with applicable laws and rules of procedure and is held to the same standards
as licensed attorneys. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex.
1978); see Senegal, 2023 WL 6631943, at *3. “The brief must articulate the issues
we are to decide, and it fails to comply with the rules if we must speculate or guess
about the appellant’s issues.” Senegal, 2023 WL 6631943, at *3 (citing Golden v.
Milstead Towing & Storage, Nos. 09-21-00044-CV, 09-21-00045-CV, 2022 WL
1412303, at *2 (Tex. App.—Beaumont May 5, 2022, no pet.) (mem. op.)). We do
not (1) advocate for any parties, (2) search the record to identify possible or
unassigned trial court error, or (3) search for facts or legal authorities that may
support a party’s position. See Senegal, 2023 WL 6631943, at *3; Golden, 2022 WL
1412303, at *2.
The Texas Rules of Appellate Procedure require that an appellant’s brief
include a statement of facts that “must be supported by record references.” Tex. R.
App. P. 38.1(g). Additionally, an appellant’s “brief must contain a clear and concise
argument for the contentions made, with appropriate citations to authorities and to
the record.” Id. at 38.1(i); see also Lion Copolymer Holdings, LLC v. Lion Polymers,
LLC, 614 S.W.3d 729, 732 (Tex. 2020). “However, briefs must also ‘be liberally,
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but reasonably, construed so that the right to appeal is not lost by waiver.’” Lion
Polymers, 614 S.W.3d at 732 (citing Horton v. Stovall, 591 S.W.3d 567, 569 (Tex.
2019) (per curiam)). We hesitate to resolve cases based on procedural defects, rather
we try to resolve cases on the merits. See id. (citation omitted). We must look not
only at the wording of parties’ issues, “but also the arguments, evidence, and
citations relied on by those parties to determine which issues the parties intended to
and actually briefed.” Id. (citing St. John Missionary Baptist Church v. Flakes, 595
S.W.3d 211, 214 (Tex. 2020) (per curiam)). Even so, it is not the appellate court’s
duty to scour through a voluminous record and find facts to support a party’s
position. See Lowry v. Tarbox, 537 S.W.3d 599, 620 (Tex. App.—San Antonio 2017,
pet. denied) (“When appellants fail to discuss the evidence supporting their claim or
apply the law to the facts, they present nothing for review.”); Dunn v. Bank-Tec
South, 134 S.W.3d 315, 328 (Tex. App.—Amarillo 2003, no pet.) (explaining it is
not appellate court’s duty to search for evidence that supports a party’s contention
in a multi-volume trial record).
An appellant does not satisfy the appellate briefing requirements by simply
incorporating by reference the argument and analysis she presented in the trial court
into her appellant’s brief. See Balderas as Next Friend of Balderas v. Hous. Foam
Plastics, Inc., No. 01-20-00755-CV, 2022 WL 17254954, at *9 (Tex. App.—
Houston [1st Dist.] Nov. 29, 2022, no pet.) (mem. op.); Allen v. United of Omaha
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Life Ins., 236 S.W.3d 315, 325 (Tex. App.—Fort Worth 2007, pet. denied); see
also Khan v. Safeco Surplus Lines, No. 14-13-00024-CV, 2014 WL 3907976, at *5–
6 (Tex. App.—Houston [14th Dist.] Aug. 12, 2014, pet. denied) (mem. op.) (holding
appellant’s briefing was inadequate and appellant could not incorporate by reference
into his appellant’s brief the argument and authorities from his summary-judgment
response in the trial court).
Engaging in a review of this voluminous record without adequate record
citations is almost impossible. See Senegal, 2023 WL 6631943, at *3 (explaining
that we do not search the record to identify possible trial court error or for facts or
legal authority’s that may support a party’s position); Golden, 2022 WL 1412303, at
*2. That said, after liberally construing her brief, it appears Telegina’s complaints
relate to the trial court’s Rule 308b Order, partial summary judgment orders, and
Final Judgment and depend on whether: (1) the parties obtained a valid divorce from
the Russian Consulate based on the parties’ Dissolution Agreement and Prenuptial
Agreement; (2) the parties had any community property that required post-divorce
division; and (3) whether Telegina has a cause of action against Nechayuk for
breaching the Dissolution Agreement or Prenuptial Agreement. See Lion Polymers,
614 S.W.3d at 732; Senegal, 2023 WL 6631943, at *3; Golden, 2022 WL 1412303,
at *2. We endeavor to reach the merits of these questions central to Telegina’s
appeal. See Lion Polymers, 614 S.W.3d at 732. That said, because Telegina has
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failed to provide this Court with adequate citations to the record and legal authority
with argument for how it supports her other stated issues, we conclude that she has
waived all other issues due to inadequate briefing. See Tex. R. App. P. 38.1(g), (i).
II. BACKGROUND
A. The Parties’ Relationship and Prenuptial Agreement
On August 12, 2010, Russian citizens Telegina and Nechayuk, entered into a
Prenuptial Agreement governing aspects of their property during marriage, which
included a provision characterizing each party’s earnings during the marriage as
each person’s separate property. Among other things, the Prenuptial Agreement
provided that passive income shall retain the character from which it is derived, and
passive income earned on separate property after the marriage remained separate
property. Applicable provisions from the Prenuptial Agreement include:
WHEREAS, neither party has consulted with an attorney concerning
this agreement prior to entering into it;
WHEREAS both parties acknowledge that they have read and
understand this agreement, have not been subjected to any form of
coercion, duress or pressure, and believe this agreement to be fair and
to represent their intentions with regards to their relationship, assets and
to any estate that shall result from their marriage;
...
II. Separate Property.
A. Definition of “Separate Property”. As used in this agreement, the
term “Separate Property” means all rights and interests in property of
any kind, including contingent interests, owned by each party on the
effective date of this agreement. The term “Separate Property”, as used
in this agreement, is further defined below.
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B. Earnings After Effective Date of Agreement Also Separate
Property.
1. Earnings During Marriage - Passive Income. Passive income derived
from property of any type shall have the same character for purposes of
this agreement as the property from which it is derived. Thus, passive
income from Separate Property earned or accruing after the effective
date of this agreement -shall be the Separate Property of the owner of
that asset. The term “passive income” means dividends, capital gains,
interest, rents, royalties, disruptions and other income accrued from
property of a party and obtained after the effective date of this
agreement.
...
2. Earnings During Marriage – Earned Income
Earned income of the parties during the marriage shall be considered
the Separate property.
a.
The term “earned income” means any income obtained by a party after
the effective date of [t]his agreement that does not meet the definition
of passive income as set forth in the previous section. Types of earned
income include, but are not limited to, salary and bonus from
employment, earnings derived from the performance of services as an
independent contractor, and income derived from a business run as a
sole proprietorship.
...
5. Separate Property shall include substitutions and exchanges for such
property now in existence, and any proceeds there from, [sic] and from
any income derived from such Separate Property, and any property
purchased from the proceeds or income from such property.
6. Separate property shall also include gifts or inheritances one party
receives from a third party after the effective date of this agreement.
...
8. Contributions and accumulations in retirement plans and accounts:
In regard to retirement plans and accounts, the parties covenant and
agree that all accumulations in, and contributions to, retirement plans
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and accounts whether before or during the marriage shall be the
Separate Property of the party who owns the account or is the plan
beneficiary.
C. Waiver of Rights and Claims to Separate Property. Except as
otherwise provided herein, each party waives and releases all rights,
interests in and claims to the Separate Property of the other party arising
under common or statutory law of any jurisdiction (present or future).
The Prenuptial Agreement prohibited adultery and had two “Annexes” the parties
executed that required payment of $50,000 if either party contacted individuals from
a “persona non grata” list. On August 13, 2010, Telegina and Nechayuk married at
the Consulate General of Russia in Houston, Texas.
B. Russian Divorce and “Marital Settlement Agreement
for Dissolution of Marriage”
On July 21, 2017, both parties signed a “Marital Settlement Agreement for
Dissolution of Marriage” (“Dissolution Agreement”). Later the same day, the parties
went together and filed a joint application for divorce with the Russian Consulate in
Houston Texas.
The Dissolution Agreement contained the following provisions:
B. Because of irreconcilable differences PARTIES have made a joint
decision to dissolve the marriage by filing an appropriate application
with the General Consulate of Russian Federation in Houston;
C. PARTIES have made this agreement to settle once and for all what
each of the PARTIES owes to and will expect from the other PARTY;
D. The prenuptial agreement entered by the PARTIES on July 12, 2010,
including all its Amendments entered on July 12, 2010 and February
17, 2011, is hereby terminated and rendered null and void without any
consequences under any of the Prenuptial agreement provisions and its
Amendments for any of the PARTIES, except Section II (Private
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Property), Section III (Alimony), Section VI (Waiver of Rights Upon
Death), Section VI (Debts)
E. On the date of official dissolution of the marriage as certified by the
Certificate of dissolution of marriage issued by the Consulate General
of Russian Federation in Houston, the PARTIES will assume
responsibilities as specified below Section III of this Agreement. The
list of responsibilities provided in this Agreement is exhaustive and no
other responsibility resulting from the marriage or dissolution of the
marriage will be assumed by any of the PARTIES unless agreed by both
PARTIES in writing and attached to this Agreement as unalienable
amendment[.]
Section III of the Dissolution Agreement then states that Nechayuk would pay
Telegina a total of $340,000 in five installments over the four years following the
divorce. The first payment was for $100,000 and to be paid within a week after the
Russian Consulate issued the Certificate of Dissolution of Marriage. The remaining
four payments would be once a year for the next four years in equal amounts of
$60,000. The Dissolution Agreement added that the “PARTIES will restrain from
collecting information or interfering with each other’s life, including immediate
relatives and known associates directly or through third parties, unless explicitly
requested or authorized by the other party.”
On August 22, 2017, the parties received their Divorce Certificate from the
Consulate General of Russia in Houston, Texas. The Divorce Certificate stated that
they filed their “joint application” for divorce on July 21, 2017, and the marriage
between Nechayuk and Telegina was terminated on August 22, 2017.
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C. Telegina’s Divorce Petition and Proceedings in Montgomery County
Less than three months later, in Montgomery County Court at Law, Telegina
filed her “Original Petition for Divorce” requesting a divorce. In March 2018,
Nechayuk filed his “Plea to the Jurisdiction, Motion to Dismiss, and Original
Answer” (hereinafter Answer). In his Answer, Nechayuk argues there was a
Prenuptial Agreement, and the parties entered into a Dissolution Agreement. He also
argues that the parties were already divorced by the Russian Consulate as of August
22, 2017, and no justiciable interest exists, so the case is moot. Nechayuk asserts
that there is no subject matter jurisdiction since Telegina is seeking a divorce, but
the parties are already divorced. Shortly thereafter, and “subject to and without
waiving” his Plea to the Jurisdiction, Nechayuk filed a “Counterpetition for Divorce”
arguing that their marriage was registered with Russian Consulate in Houston on
August 13, 2010, and they divorced through the Russian Consulate. With his
Counterpetition, he attached the Dissolution Agreement and Prenuptial Agreement.
Ten days after filing his Plea to the Jurisdiction and Original Answer, Nechayuk
filed his “Notice of Foreign Law” attaching Russian statutes applicable to divorce
proceedings. He asserted the parties obtained an agreed Russian divorce finalized at
the Consulate General of Russia in Houston, Texas on August 22, 2017, under
Russian law. He attached the laws regarding divorce in Russia, which allow for a
nonjudicial divorce process.
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After Nechayuk filed his Plea to the Jurisdiction, Motion to Dismiss, and
Answer, Telegina filed her “Second Amended Petition for Divorce” in April 2018.
In that pleading, she claims there is undivided marital property subject to division,
and she asserts causes of action for bodily injury, intentional infliction of emotional
distress, and breach of contract.
The parties later filed an “Agreed Texas Rule of Civil Procedure 308b
Scheduling Order” setting the 308b hearing for August 30, 2018. See generally Tex.
R. Civ. P. 308b. The parties also entered into a Rule 11 agreement, which provided
“the Court may consider the expert affidavits/reports submitted by the parties,
whether or not admissible, in accordance with TRE203(c).” “The parties agreed to
submit translated documents, statutes and expert reports.”
We have a complete Reporter’s Record of this hearing and the evidence
admitted at the hearing. Evidence admitted at the hearing includes: the translated
“Divorce Certificate” from the Russian Consulate with translator’s certificate; the
Dissolution Agreement; a translated Russian statute with translator’s certificate
providing that “[u]pon mutual consent of spouses who do not have common minor
children, divorce shall be performed in vital records bodies[,]” and the “[d]ivorce
and issuance of the divorce certificate shall be performed by a vital records body
upon the expiration of a one month period starting from the date of application for
divorce[;]” a certified translated statute providing that divorces between Russian
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citizens living abroad and eligible to have their marriages dissolved in vital records
bodies under Russian law, may have their marriage “dissolved in . . .consulates of
the Russian Federation;” and affidavits of Russian family lawyer Liudmila
Iablokova discussing the applicable Russian statutes.
The trial court’s “Order and Findings from TRCP308(b)-(f) Hearing” shows
that it also heard Nechayuk’s Plea to the Jurisdiction at the same time. This Order
included the trial court’s detailed findings, including that “the parties complied with
the requirements of Russian law in obtaining their administrative divorce from the
Russian Consulate” and “were divorced on August 22, 2017.” The trial court also
found,
11. Both parties voluntarily traveled together to the Russian Consulate
in Houston after negotiating and drafting a property settlement for their
divorce. Both parties knowingly and freely signed the divorce papers
and property settlement papers at the Russian Consulate on July 21,
2017, and both acknowledged their intent to divorce, in writing, at the
Russian Consulate. Both parties filed a joint application for divorce at
the Russian Consulate. Telegina was aware that court processes were
available to her, both in Russia and in the state courts in Texas, to
resolve their divorce but she voluntarily chose to proceed with, and to
finalize their divorce, pursuant to the Russian administrative divorce
process. Therefore, Telegina’s rights to due process were not violated.
12. The Russian administrative divorce process did not violate
Telegina’s right to due process.
The court also found that Telegina failed to demonstrate that the Russian divorce
violated Texas public policy.
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Although the trial court determined the divorce from the Russian Consulate
was valid and the parties were already divorced, Telegina proceeded with her claims
for post-divorce division of marital assets, breach of contract, and intentional
infliction of emotional distress and bodily injury. Nechayuk filed a no-evidence
motion for summary judgment and traditional motion for summary judgment as to
those claims. In his motion for summary judgment, Nechayuk asserted that the
Dissolution Agreement settled all matters related to the divorce, and its terms
showed there were no unresolved issues and no evidence of any undivided property.
He also argued that the Dissolution Agreement stated that certain provisions in the
Premarital Agreement remained effective, including a provision that designated
everything as each spouse’s separate property such that there was no community
property acquired during the marriage.
Telegina served Nechayuk with discovery requests, noticed his deposition,
and filed multiple motions to compel. In essence, Telegina asserted that although
they were divorced, the Russian divorce did not divide the marital property; that the
property division was left for the courts, and she contested the validity of the
Dissolution Agreement. Nechayuk resisted discovery of any matters beyond whether
the Dissolution Agreement was valid and whether Telegina released all her claims
arising from the marriage and divorce by signing that Agreement. He sought
protection from discovery on that basis. Telegina, in turn, countered that she could
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not adequately respond to the motions for summary judgment without discovery.
Nechayuk moved for a protective order, and in November 2018, the trial court held
a hearing on several pending motions, including Telegina’s multiple motions to
compel and motions for sanctions.
The trial court limited its initial determination to whether the Dissolution
Agreement was valid and whether Telegina released any claims arising from the
marriage. The trial court likewise restricted discovery to the validity of the
Agreement and to Nechayuk’s alleged breach of that agreement. The trial court
allowed Telegina to depose Nechayuk on those limited matters, although it later
noted that determining whether Telegina was precluded as a matter of law from
bringing independent claims did not require his deposition. The trial court also ruled
that it would not require Nechayuk to produce an inventory, as the parties were
already divorced, and if the Dissolution Agreement was valid and Telegina released
all claims by signing it, then there was no need for Nechayuk to provide an inventory.
At the November hearing, the trial court informed the parties it would rule on the
initial matter of the Dissolution Agreement’s validity and Telegina’s release of all
claims and would delay ruling on the other grounds in the motions for summary
judgment. The trial court extended Telegina’s deadline to respond to the traditional
motion for summary judgment until November 26, 2018, focusing on the sole issue
of whether the Dissolution Agreement and release language precludes her from
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bringing independent claims. The trial court explained that the only matter it would
address when considering the pending motions for summary judgment would be
whether Telegina was prevented as a matter of law from bringing independent
claims.
On December 12, 2018, the trial court signed an “Order Granting Partial
Summary Judgment” in favor of Nechayuk as to Telegina’s claims of bodily injury
and intentional infliction of emotional distress. The trial court specified that it
considered Nechayuk’s Traditional Motion for Summary Judgment and Telegina’s
Response. The Order included a finding “that by executing the Marital Settlement
Agreement for Dissolution of Marriage, Telegina released Nechayuk from any claim
for bodily injury and intentional infliction of emotional distress[,]” and granted the
partial judgment for Nechayuk on those claims.
The trial court, however, allowed Telegina to proceed with her claims for post-
divorce property division, breach of the Dissolution Agreement, and breach of the
Prenuptial Agreement. Over the ensuing months, there were protracted disputes over
discovery and its scope. Nechayuk maintained that the only relevant materials were
the Dissolution Agreement and Prenuptial Agreement, and discovery should be
limited to the validity of those agreements. Nechayuk contended that threshold
matter should be determined, since if the agreements were determined valid, there
was no community property.
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In contrast, Telegina sought a wide range of discovery about Nechayuk’s
alleged mistresses and retirement benefits, among other things. Telegina also
repeatedly filed voluminous motions with exhibits that regularly consisted of over
one hundred pages and requested sanctions on multiple occasions. Telegina
ultimately deposed Nechayuk and questioned him about their agreements, along
with the circumstances surrounding the parties seeking a divorce through the
Russian Consulate.
Nechayuk filed several other motions for summary judgment addressing
Telegina’s pending claims for post-divorce division of property and breach of the
Dissolution Agreement and Prenuptial Agreement, which the trial court did not
grant. Ultimately, in an order signed March 5, 2021, the trial court granted
Nechayuk’s Motion for Summary Judgment filed on December 23, 2020, which
addressed the Dissolution Agreement’s and Prenuptial Agreement’s enforceability,
post-divorce division of property, and certain breaches of the Dissolution Agreement
and Prenuptial Agreement. On March 5, 2021, the trial court dismissed Telegina’s
sole remaining claim for breach of the Dissolution Agreement after repeatedly
sustaining Nechayuk’s special exceptions when she failed to comply with the court’s
orders that she replead to cure defects in her petitions.
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III. ANALYSIS
A. Principles of Comity and Validity of Russian Divorce
We first determine whether the trial court properly recognized the parties’
divorce obtained from the Russian Consulate, as Telegina challenges the trial court’s
recognition of the Russian divorce in issues three, five, eighty, eighty-three, and
eighty-four. She seems to assert that the trial court erred in recognizing the Russian
divorce, because: (1) the parties lived in Texas; (2) she was denied due process; and
(3) it was against public policy.
After a hearing, which included the parties’ testimony and consideration of
the expert’s affidavits, the trial court dismissed Telegina’s divorce action based on
Rule 308b, which allows the trial court the discretion to recognize a foreign
judgment based on comity. See id. 308b(a), (b). At the Rule 308b hearing, the trial
court characterized the issue before it as whether it had jurisdiction, and the scope
of the hearing was “whether or not this Russian divorce denied either of these parties
constitutional protections or [was] against public policy.”
1. Standard of Review and Applicable Law
A court must have subject-matter jurisdiction to have authority to decide a
case. In re Marriage of Sabir and Javed, No. 05-23-00837-CV, 2024 WL 3507200,
at *2 (Tex. App.—Dallas July 23, 2024, no pet.) (mem. op.) (stating same in context
of foreign divorce determination). Subject matter jurisdiction is never presumed and
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cannot be waived. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–
44 (Tex. 1993); see also Marriage of Sabir, 2024 WL 3507200, at *2 (citing Ashfaq
v. Ashfaq, 467 S.W.3d 539, 541 (Tex. App.—Houston [1st Dist.] 2015, no pet.)). We
review de novo questions implicating a court’s subject matter jurisdiction. See In re
H.S., 550 S.W.3d 151, 155 (Tex. 2018); In re J.W.W., No. 09-23-00292-CV, 2024
WL 630869, at *9 (Tex. App.—Beaumont Feb. 15, 2024, pet. denied) (mem. op.).
At issue here is whether the trial court had the authority to recognize the
Russian divorce based on principles of comity. See Tex. R. Civ. P. 308b. Since states
“are not required to give full faith and credit to foreign country judgments; dismissal
based on comity is a matter of discretion.” Ashfaq, 467 S.W.3d at 541 (citations
omitted); see also Marriage of Sabir, 2024 WL 3507200, at *2; Acain v. Int’l Plant
Servs., LLC, 449 S.W.3d 655, 659 (Tex. App.—Houston [1st Dist.] 2014, pet.
denied) (discussing principles of comity and standard of review). Thus, we review
the trial court’s order recognizing the Russian divorce for abuse of discretion. See
Marriage of Sabir, 2024 WL 3507200, at *2; Ashfaq, 467 S.W.3d at 541; Acain, 449
S.W.3d at 659. A trial court abuses its discretion if it acts arbitrarily, unreasonably,
or without reference to guiding rules or principles. See Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985); Ashfaq, 467 S.W.3d at 541.
When, as here, the parties tried issues to the bench, the trial court acts as the
factfinder and determines the witnesses’ credibility and weight to be given their
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testimony. See Estate of Wright, No. 09-18-00227-CV, 2020 WL 1173701, at *4
(Tex. App.—Beaumont Mar. 12, 2020, no pet.) (mem. op.) (discussing same in
context of motion for new trial); see also City of Keller v. Wilson, 168 S.W.3d 802,
819 (Tex. 2005); Ashfaq, 467 S.W.3d at 542. In resolving factual disputes, the trial
court may resolve any inconsistencies in a witness’s testimony. See City of Keller,
168 S.W.3d at 820; Estate of Wright, 2020 WL 1173701, at *4; Ashfaq, 467 S.W.3d
at 542. As to factual disputes, a trial court does not abuse its discretion “if it bases
its decision on conflicting evidence and some evidence supports its
decision.” See Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex.
2009) (citation omitted); Ashfaq, 467 S.W.3d at 542 (citation omitted).
2. Application
We now turn to the three reasons Telegina argues should have precluded the
trial court from recognizing the Russian divorce: domicile; public policy; and due
process. We take each of these in turn.
a. Domicile
We first address Telegina’s contention that the parties were domiciled in
Texas. “Texas courts treat foreign law as a fact issue.” Ashfaq, 467 S.W.3d at 542
(citing Nguyen v. Nguyen, 355 S.W.3d 82, 89 (Tex. App.—Houston [1st Dist.] 2011,
pet. denied)). A party relying on foreign law must strictly plead and prove the
law. Id.; see also Tex. R. Evid. 203 (requiring party who intends to raise issue about
21
law of foreign country to give notice by pleadings or other writing and supply to all
parties copies of any written materials that party intends to use at least 30 days before
trial); Tex. R. Civ. P. 308b (governing trial court proceedings for recognizing foreign
judgments).
Nechayuk adduced evidence that Russian law allowed Russian citizens
residing abroad to obtain an administrative divorce through the Russian Consulate
if they had no children or property disputes. They have no children, and they are
Russian citizens living in Texas. The trial court took judicial notice of Russian law
permitting an administrative divorce process and found the parties complied with
Russian law in obtaining their administrative divorce from the Russian Consulate.
The trial court found that the parties had the option of obtaining their divorce this
way or through the courts, either in Russia or in Texas. This was supported by the
Russian statutes, and the affidavit testimony of Nechayuk’s expert. The trial court
also considered affidavit testimony of Vitaliy Nakrhratov, Telegina’s expert, who
asserted that the administrative divorce was not available to the parties given a
property dispute. Nechayuk’s expert opined that the parties’ divorce was “valid and
recognized in Russia.” Telegina’s expert opined that there was no valid property
division, the spouses did not divide their property, and “the Russian Federation
administrative process for divorce was neither applicable nor shown to have been
followed. In a rebuttal affidavit, Nechayuk’s expert likewise testified that the parties
22
were only eligible for divorce if they did not have children and “did not have any
disputes in regards to their common marital property.” Further, Nechayuk’s expert
noted that she reviewed the Dissolution Agreement and Prenuptial Agreement,
which were evidence no property dispute existed when the parties’ divorced.
The trial court was free to weigh this evidence and determine that Iablakova’s
testimony, the statutes, and the parties’ agreements stating they settled their property
disputes established the administrative divorce was available and valid. See Ashfaq,
467 S.W.3d at 542. Based on the record, we conclude the trial court did not abuse
its discretion when it rejected Telegina’s argument that the parties’ domicile in Texas
prevented it from recognizing the Russian divorce.
b. Public Policy
We next turn to whether the trial court’s recognition of the parties’ Russian
divorce violated Texas public policy, as the trial court found that Telegina failed to
demonstrate a violation of Texas public policy. “[A] court need not enforce a foreign
law if enforcement would be contrary to Texas public policy.” Larchmont Farms,
Inc. v. Parra, 941 S.W.2d 93, 95 (Tex. 1997) (per curiam) (citations omitted) (stating
rule in the context of a workers’ compensation appeal). “To promote the amicable
settlement of disputes in a suit for divorce[,]” the Texas Family Code expressly
allows for agreements “concerning the division of property and liabilities of the
spouses and maintenance of either spouse.” Tex. Fam. Code Ann. § 7.006(a).
23
In her brief, Telegina generally complains that the United States has
sanctioned Russia and characterized Russia as the United States’ “biggest global
rival[.]” That said, she does not explain how the trial court’s recognition of a divorce
the parties sought jointly at the Russian Consulate violates any public policy of the
State of Texas. Liberally construing her brief, she argues that allowing Russia to
grant divorces on United States soil is problematic and that the Russian divorce fails
to divide the parties’ property. Again, she does not explain how it is against public
policy for two citizens of Russia who voluntarily apply for a divorce certificate and
receive one violates Texas public policy.
The trial court found the parties entered a Dissolution Agreement, which was
admitted into evidence at the 308b hearing, and the trial court made findings
consistent with that Dissolution Agreement. Based on this record, the trial court
could have reasonably concluded that recognizing the parties’ administrative divorce
through the Russian Consulate based on the parties’ decision to jointly apply for the
divorce at the Russian Consulate coupled with their signed Dissolution Agreement
and Prenuptial Agreement promoted the amicable settlement of this divorce. See id.
Thus, the trial court did not abuse its discretion when it rejected Telegina’s
arguments that recognizing the Russian divorce violated public policy.
24
c. Due Process
We next address Telegina’s due process complaint. Telegina contends that the
Russian divorce violated her constitutional right to due process. “Recognition of a
foreign judgment in the absence of due process constitutes an abuse of discretion.”
In re Marriage of Sabir, 2024 WL 3507200, at *2 (citation omitted); Ashfaq, 467
S.W.3d at 541 (citations omitted). “‘[D]ue process requires that no other jurisdiction
shall give effect, even as a matter of comity, to a judgment elsewhere acquired
without due process.’” Ashfaq, 467 S.W.3d at 541 (quoting Griffin v. Griffin, 327
U.S. 220, 228 (1946)). “Due process at a minimum requires notice and an
opportunity to be heard at a meaningful time and in a meaningful manner.” Mosley
v. Tex. Health and Hum. Servs. Comm’n, 593 S.W.3d 250, 265 (Tex. 2019) (citation
omitted); In re Marriage of Sabir, 2024 WL 3507200, at *2 (citation omitted); see
also Glawson v. Polk Cnty. Bail Bond Bd., 654 S.W.3d 763, 771 (Tex. App.—
Beaumont 2022, pet. denied).
Besides finding that the parties complied with Russian law in obtaining their
administrative divorce from the Russian Consulate, the trial court determined,
Both parties voluntarily traveled together to the Russian Consulate in
Houston after negotiating and drafting a property settlement for their
divorce. Both parties knowingly and freely signed the divorce papers
and property settlement papers at the Russian Consulate on July 21,
2017, and both acknowledged their intent to divorce, in writing at the
Russian Consulate. Telegina was aware that court processes were
available to her both in Russia and in state courts in Texas, to resolve
their divorce, but she proceed with, and to finalize their divorce,
25
pursuant to the Russian administrative divorce process. Therefore,
Telegina’s rights to due process were not violated.
The record supports the trial court’s finding and this determination.
Nechayuk testified that the parties discussed two options for divorce, (1) U.S.
courts or (2) the Russian Consulate. He explained that Telegina said, “One option is
to go to the U.S. court and litigate and it would be much worse for me than I would
agree to her conditions and we would get the Russian divorce.” Telegina testified
that on July 21, 2017, she went with her husband to the Russian Consulate to discuss
divorce, but she denied seeing or signing the joint application. Telegina testified that
they returned to the Russian Consulate on August 22, 2017, and they received their
divorce certificate. She also testified that she signed the Dissolution Agreement,
initialed each page, intended to abide by the document, and she agreed to the things
in the document. She also testified that she did not return the first $100,000 payment
Nechayuk made under the Dissolution Agreement. We give deference to the
factfinder’s role in judging the witnesses’ credibility and resolving conflicts in the
evidence. See City of Keller, 168 S.W.3d at 820; Estate of Wright, 2020 WL
1173701, at *4; Ashfaq, 467 S.W.3d at 541–42; see also Villa, 299 S.W.3d at 97 (in
context of sanctions explaining that trial court does not abuse its discretion of it bases
its decision on conflicting evidence and some supports its decision).
Based on the evidence presented to the trial court, the trial court could have
reasonably determined that Telegina had notice of the administrative Russian
26
divorce proceeding, as she participated in the decision to pursue it and negotiating
the Dissolution Agreement. The evidence also establishes that Telegina knew she
could pursue a divorce through the court system but elected to obtain an
administrative Russian divorce. Since the record supports that the parties chose to
proceed with the Russian divorce and filed a joint application to do so, Telegina had
notice “and an opportunity to be heard at a meaningful time and in a meaningful
manner.” Mosley, 593 S.W.3d at 265; In re Marriage of Sabir, 2024 WL 3507200,
at *2 (citation omitted); Ashfaq, 467 S.W.3d at 541. Accordingly, we conclude the
trial court did not abuse its discretion when it determined the Russian divorce did
not violate Telegina’s right to due process.
We overrule issues one, three, five, eighty, eighty-three, and eighty-four.
B. Summary Judgment: Post-Divorce Division Claims and Alleged Breaches
of Dissolution Agreement and Prenuptial Agreement
Once the trial court determined the Russian divorce was valid and the parties
were already divorced, Telegina’s remaining claims depended on the validity of the
Dissolution Agreement and Prenuptial Agreement and whether those agreements
foreclosed the possibility of her other claims. Those claims included post-divorce
division of property and alleged breaches of the parties’ Dissolution Agreement and
Prenuptial Agreement. We consider these points as part of issues ten and twenty.
On December 23, 2020, Nechayuk filed another traditional Motion for
Summary Judgment. In his Motion for Summary Judgment, Nechayuk asserts the
27
parties’ Prenuptial Agreement and Dissolution Agreement are valid and enforceable
and resolve all property issues between the parties. Specifically, he contends that she
made a judicial admission in her live pleading that the Dissolution Agreement is
valid and enforceable. He also asserts that Telegina waived any claim that he
breached the Prenuptial Agreement when she executed the subsequent Dissolution
Agreement. Finally, he argues that Telegina’s claim that he breached the Dissolution
Agreement is not viable. His summary judgment evidence includes: Prenuptial
Agreement; Marital Settlement Agreement for Dissolution of Marriage; excerpts of
testimony from August 30, 2018 hearing; “Order and Findings from TRCP308(b)-
(f) Hearing;” and “Order on Petitioner’s Motion for Partial Summary Judgment on
the Prenuptial Agreement and Marital Settlement Agreement.”
Telegina filed her “Response to Resp[o]ndent’s Motion for Summary
Judgment,” and argues that the Dissolution Agreement and Prenuptial Agreement
are ambiguous, and the ambiguity creates a fact issue which precludes summary
judgment. She also contends that the Prenuptial Agreement was unenforceable as it
was ambiguous, not voluntarily executed, was unconscionable and signed without
adequate disclosures.
On March 5, 2021, the trial court signed an order granting Nechayuk’s Motion
for Summary Judgment filed on December 23, 2020. The Order states it renders
judgment on all Telegina’s claims except her claim that Nechayuk breached the
28
Dissolution Agreement by “collecting information on or interfering with
[Telegina’s] life.” It also left open Nechayuk’s claim for reasonable and necessary
attorney’s fees to defend the suit.
1. Standards of Review and Applicable Law
We review a trial court’s grant of a traditional summary judgment de
novo. Zive v. Sandberg, 644 S.W.3d 169, 173 (Tex. 2022) (citation omitted). The
moving party has the burden to show with competent summary judgment evidence
that no genuine issue of material fact exists, and it is entitled to summary judgment
as a matter of law. See Tex. R. Civ. P. 166a(c) (setting forth standard for traditional
summary judgment); Zive, 644 S.W.3d at 173. On appeal, we review the summary
judgment record “in the light most favorable to the nonmovant, indulging every
reasonable inference and resolving any doubts against the motion.” City of Keller,
168 S.W.3d at 824; see also Zive, 644 S.W.3d at 173 (citation omitted).
Summary judgment for a defendant is proper if the defendant negates at least
one element of each of the plaintiff’s theories of recovery or pleads and conclusively
establishes each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez,
941 S.W.2d 910, 911 (Tex. 1997); see also Henkel v. Norman, 441 S.W.3d 249, 251
(Tex. 2014) (citation omitted) (“A traditional summary judgment motion is properly
granted where a defendant conclusively negates at least one essential element of a
cause of action.”). With a traditional motion for summary judgment, only if the
29
movant meets their burden of conclusively negating an essential element of a cause
of action does the burden shift to the nonmovant to present evidence raising a
genuine issue of material fact. See Energen Res. Corp. v. Wallace, 642 S.W.3d 502,
514 (Tex. 2022) (citing Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018))
(other citations omitted); see also Tex. R. Civ. P. 166a(c). When a trial court grants
summary judgment without specifying the basis, we affirm if any of the movant’s
theories has merit. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.
1995).
To be enforceable, “a premarital agreement must be in writing and signed by
both parties.” Tex. Fam. Code Ann. § 4.002. Likewise, spouses may enter into
marital property agreements partitioning their existing and future property, which
must be in writing and signed by both parties. See id. §§ 4.102, 4.103, 4.105. For
either agreement to be unenforceable, a party must prove:
(1) the party did not sign the agreement voluntarily; or
(2) the agreement was unconscionable when it was signed and, before
execution of the agreement, that party:
(A) was not provided a fair and reasonable disclosure of the property
or financial obligations of the other party;
(B) did not voluntarily and expressly waive, in writing, any right to
disclosure of the property or financial obligations of the other party
beyond the disclosure provided; and
(C) did not have, or reasonably could not have had, adequate
knowledge of the property or financial obligations of the other party.
Id. §§ 4.006(a), 4.105(a). The issue of unconscionability is a question of law for the
court. See id. §§ 4.006(b), 4.105(b). “Because disclosure forms the second prong of
30
the test to rebut the presumption of enforceability, lack of disclosure is material only
if the premarital agreement is unconscionable.” Marsh v. Marsh, 949 S.W.2d 734,
743 (Tex. App.—Houston [14th Dist.] 1997, no writ) (citation omitted); see Tex.
Fam. Code Ann. §§ 4.006(a), 4.105(a). The burden is on the party seeking to avoid
enforcement of the agreement to establish these things. See Tex. Fam. Code Ann. §§
4.006(a), 4.105(a).
To determine whether a contract is unconscionable, courts consider the
circumstances in which the agreement was made, including “‘the alternatives, if any,
which were available to the parties at the time of the making of the contract; the non-
bargaining ability of one party; whether the contract is illegal or against public
policy, and, whether the contract is oppressive or unreasonable.’” Marsh, 949
S.W.2d at 739 (quoting Wade v. Austin, 524 S.W.2d 79, 86 (Tex. Civ. App.—
Texarkana 1975, no writ)). In considering whether a premarital agreement or marital
property agreement is unconscionable, courts have considered factors like the
maturity and age of the individuals, their business backgrounds, their educational
levels, prior marriages, and other motivations. See id. at 741; see also In re Marriage
of A.M.H., No. 14-17-00908-CV, 2019 WL 4419195, at *4 (Tex. App.—Houston
[14th Dist.] Sept. 17, 2019, no pet.) (mem. op.) (citation omitted) (addressing
prenuptial agreement); In re Marriage of Smith, 115 S.W.3d 126, 135 (Tex. App.—
Texarkana 2003, pet. denied) (addressing marital property agreement). Generally,
31
“the term ‘unconscionable’ describes a contract that is unfair because of its overall
one-sidedness or the gross one-sidedness of its terms.” In re Marriage of Smith, 115
S.W.3d at 135 (citation omitted). “‘[T]he fact that a bargain is a hard one does not
entitle a party to be relieved therefrom if he assumed it fairly and voluntarily.’” Id.
(citing Wade, 524 S.W.2d at 86); Marsh, 949 S.W.2d at 739, 741 (explaining that
the fact premarital agreement was signed shortly before the wedding does not make
it unconscionable).
“Texas has a ‘strong public policy freedom of contract’ that is ‘firmly
embedded in our jurisprudence.’” In re Marriage of I.C. and Q.C., 551 S.W.3d 119,
124 (Tex. 2018) (quoting Philadelphia Indem. Ins. Co. v. White, 490 S.W.3d 468,
471 (Tex. 2016)). Texas law recognizes that parties “‘shall have the utmost liberty
of contracting,’” and that contracts entered “‘freely and voluntarily shall be held
sacred and shall be enforced by [c]ourts.’” Id. (quoting Gym-N-I Playgrounds, Inc.
v. Snider, 220 S.W.3d 905, 912 (Tex. 2007)). This public policy favoring
enforcement of contracts includes agreements directly affecting the division of
property acquired during marriage. See, e.g., Beck v. Beck, 814 S.W.2d 745, 749
(Tex. 1991) (enforcing premarital agreement providing that income from separate
properties would be separate property of owner spouse and acknowledging state’s
public policy determination to enforce premarital agreements).
32
“The construction of an unambiguous written contract is a question of law for
the court.” Willis v. Donnelly, 199 S.W.3d 262, 275 (Tex. 2006) (citation omitted);
Williams v. Williams, 246 S.W.3d 207, 215 (Tex. App.—Houston [14th Dist.] 2007,
no pet.) (“Because the premarital agreement is not ambiguous, we may construe the
agreement as a matter of law.”). Whether an agreement is ambiguous is a question
of law for the court. See Nat’l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d
517, 520 (Tex. 1995); In re Marriage of McNelly, No. 14-13-00281-CV, 2014 WL
2039855, at *3 (Tex. App.—Houston [14th Dist.] May 15, 2014, pet. denied) (mem.
op.) (stating same in context of premarital agreement). “[I]f contractual text ‘is
subject to two or more reasonable interpretations, it is ambiguous.’” Bd. of Regents
of Univ. of Tex. Sys. v. IDEXX Lab’ys, Inc., 691 S.W.3d 438, 443 (Tex. 2024)
(citations omitted). “Words aren’t ambiguous merely because they can be read
differently in the abstract. They must be read in context, another fundamental rule.”
Id. “‘For an ambiguity to exist, both interpretations must be reasonable.’” N. Shore
Energy, LLC v. Harkins, 501 S.W.3d 598, 602 (Tex. 2016) (quoting Columbia Gas
Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex. 1996)).
2. Application
We begin our analysis with the enforceability of the agreements. The evidence
shows that both parties signed the Dissolution Agreement, which was a two-page
written document addressing their property, thus we conclude it complies with the
33
statute. See Tex. Fam. Code Ann. § 4.102 (governing marital property agreements).
Likewise, the Prenuptial Agreement and its “Annexes” are in writing and signed by
both parties, so we conclude it likewise complies with the statutory requirements.
See id. § 4.002 (governing premarital agreements). These agreements are
enforceable unless Telegina proves they were (1) not signed voluntarily, or (2) they
were unconscionable and there was not adequate disclosure. See id. §§ 4.006(a),
4.105(a).
As for the Dissolution Agreement, despite conclusory and self-serving
statements in her affidavit denying she signed it voluntarily, the summary judgment
evidence shows that during the 308b hearing Telegina admitted that she signed the
Dissolution Agreement, initialed each page, intended to abide by the document, and
she agreed to its terms. This supported the trial court’s findings, also attached as
summary judgment evidence, that the parties “freely and voluntarily” entered into
the Dissolution Agreement.
She also generally responds to the summary judgment motion that the
Dissolution Agreement was unconscionable and avers in her affidavit that she was
suffering from anxiety and her mother died the month before she signed the
agreement. She also states in her affidavit that she did not have the money to consult
a lawyer. Still, the summary judgment evidence shows that Telegina reviewed the
Dissolution Agreement over the span of three days and negotiated revisions. See
34
Marsh, 949 S.W.2d at 741 (explaining that agreement signed shortly before wedding
was not unconscionable). The summary judgment evidence also shows that Telegina
was educated and had a legal background in Russia. See id.; see also In re Marriage
of A.M.H., 2019 WL 4419195, at *4; In re Marriage of Smith, 115 S.W.3d at 135.
The Dissolution Agreement specified that Section II of the Prenuptial Agreement
survived. Section II of the Prenuptial Agreement provided that each party kept their
separate property and any earnings or substitution of that separate property during
the marriage likewise remained their separate property. Plus, Telegina received
$340,000 from Nechayuk. Most importantly, the Dissolution Agreement itself
stated, “the parties acknowledge that they have read and understand this agreement,
have not been subjected to any form of coercion, duress or pressure, and believe this
agreement to be fair[.]” Thus, viewing the evidence in the light most favorable to
Telegina, we conclude that the Dissolution Agreement was not unconscionable. See
In re Marriage of A.M.H., 2019 WL 4419195, at *4; In re Marriage of Smith, 115
S.W.3d at 135; Marsh, 949 S.W.2d at 741. Since we have determined the Dissolution
Agreement was not unconscionable, and lack of disclosure forms the second prong
of the test to rebut the presumption of enforceability, we do not address Telegina’s
claims that there was no disclosure. See Marsh, 949 S.W.2d at 743; see also Tex.
Fam. Code Ann. § 4.105(a).
35
She also contends that the Dissolution Agreement is ambiguous, and she
argues the trial court had determined it contained ambiguities. This is an apparent
reference to the trial court’s prior determination that the Dissolution Agreement was
unambiguous, except as to certain language in Sections III (E) and (F) of the
Dissolution Agreement relating to the destruction of materials and property they
possess about one another and interfering with each other’s lives. Even so, the trial
court did not grant summary judgment on her claim that Nechayuk breached the
Dissolution Agreement by “collecting information on or interfering with
[Telegina’s] life.” The trial court separately dismissed that claim based on Telegina’s
failure to comply with a court’s order sustaining Nechayuk’s special exceptions and
requiring her to replead to cure the defects. We address the trial court’s dismissal of
that claim in greater detail later in this opinion.
In her affidavit responding to the summary judgment, Telegina also complains
that the Dissolution Agreement’s language incorporating the Prenuptial Agreement
is ambiguous, because it: (1) refers to incorrect dates; and (2) refers to Section II of
the Prenuptial Agreement “Private Property” rather than “Separate Property,” which
was the language used in the Prenuptial Agreement. Regarding the incorrect dates,
Telegina does not allege or offer any evidence that any other Prenuptial Agreement
exists such that the parties would not recognize the document referenced. After years
of litigation, there is only one Prenuptial Agreement in over 39,000 pages of the
36
Clerk’s Record. Since there is only one reasonable interpretation, the Dissolution
Agreement’s reference to the parties’ sole Prenuptial Agreement, even with an
incorrect date, does not create an ambiguity. See Harkins, 501 S.W.3d at 602.
Additionally, she contends the fact that there is a disparity in how the
Dissolution Agreement References Section II of the Prenuptial Agreement means
there is an ambiguity. We disagree. We must read the words in context. See Bd. of
Regents of Univ. of Tex. Sys., 691 S.W.3d at 443. Doing so reveals that the
Dissolution Agreement expressly provided that the
prenuptial agreement entered by the PARTIES on July 12, 2010,
including all its Amendments entered on July 12, 2010 and February
17, 2011, is hereby terminated and rendered null and void without any
consequences under any of the Prenuptial agreement provisions and its
Amendments for any of the PARTIES, except Section II (Private
Property), Section III (Alimony), Section VI (Waiver of Rights Upon
Death), Section VI (Debts)[.]
Since the Dissolution Agreement incorporates provisions of the Prenuptial
Agreement and designates which of those provisions survive, we also look at the
Prenuptial Agreement, reading the words in context. See id. The Prenuptial
Agreement shows it is divided into sections by Roman numerals, with “Section II”
corresponding to “Separate Property,” “Section III” corresponding to “Alimony”
and later sections addressing “Waiver of Rights Upon Death” and “Debts.” There is
only one Section II in the sole Prenuptial Agreement, and it only addresses Separate
Property. Other than arguing there is no such section as “Private Property” in the
37
Prenuptial Agreement, Telegina advocates no other possible interpretation for the
Dissolution Agreement’s reference to “Section II” of the Prenuptial Agreement
covering “Separate Property.” Since Telegina has failed to show more than one
reasonable interpretation, the Dissolution Agreement’s reference to “Section II
(Private Property)” of the Prenuptial Agreement, does not create an ambiguity. See
Harkins, 501 S.W.3d at 602.
In her Response, Telegina also complains that the Prenuptial Agreement is
ambiguous but fails to identify any specific provision that contains an ambiguity.
Rather, in her Response, she refers to the Dissolution Agreement, which we
addressed above. Her affidavit complains that the original of the Prenuptial
Agreement was not produced, complains it “does not look right to me,” there are
different dates on the document, and it fails to “list a single item of property but has
numerous references to such property.” She also states that she is “unable to confirm
with certainty that the signature on the document is mine[.]” Yet despite complaining
of the copy’s poor quality, Telegina does not unequivocally deny that she signed the
Prenuptial Agreement.
We conclude the parties signed the Dissolution Agreement and Prenuptial
Agreement voluntarily, the documents are not unconscionable and are valid and
enforceable. See Tex. Fam. Code Ann. §§ 4.002, 4.006(a), 4.102, 4.105(a).
38
Telegina also brought a claim for post-divorce division of property.
“The burden is on the party seeking the division to establish that community
property existed when the marriage was being dissolved and that the property was
not divided by the court when rendering the final divorce decree.” Land v. Land, 561
S.W.3d 624, 634 (Tex. App.—Houston [14th Dist.] 2018, pet. denied) (citations
omitted); see also Embesi v. Hall, No. 09-17-00254-CV, 2018 WL 3579930, at *3
(Tex. App.—Beaumont July 26, 2018, no pet.) (mem. op.) (explaining that party
seeking post-divorce division has the burden to prove there is property requiring
division that was not addressed by divorce). As the party seeking a post-divorce
division of property, Telegina had the burden to prove property existed requiring
division. See Land, 561 S.W.3d at 634; see also Embesi, 2018 WL 3579930, at *3.
The Dissolution Agreement terminated the parties’ earlier Prenuptial Agreement and
declared it “null and void” except for several specific provisions. One surviving
provision was “Section II” which governed the characterization of the parties’
property in detail. Telegina spent years seeking information about Nechayuk’s
salary, income, and retirement accounts arguing that she was community property
that was not divided in the parties’ Russian divorce and required post-divorce
division. The parties’ Dissolution Agreement read in conjunction with the surviving
“Section II” from the Prenuptial Agreement conclusively establishes that none of
this was community property. Rather, the parties designated everything they each
39
brought into the marriage and any earnings thereon during the marriage as separate
property. Likewise, they designated all income and earnings each acquired during
the marriage as the separate property of the individual earning it, including any
passive income derived from those earnings. Retirement accounts were also the
separate property of the individual spouse. Since the parties’ Dissolution Agreement
and surviving Section II of the Prenuptial Agreement conclusively establish there
was no community property requiring post-divorce division, Nechayuk was entitled
to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Zive, 644 S.W.3d at 173;
Henkel, 441 S.W.3d at 251. The trial court did not err by granting summary judgment
for Nechayuk on Telegina’s claim for post-divorce division of property. See Tex. R.
Civ. P. 166a(c); Zive, 644 S.W.3d at 173; Henkel, 441 S.W.3d at 251.
We now address Telegina’s claim that the trial court improperly granted
summary judgment on her claim for breach of the Prenuptial Agreement, specifically
her claims that Nechayuk engaged in affairs. To establish a claim for breach of
contract, a party must prove: (1) formation of a valid contract; (2) performance by
the plaintiff; (3) the defendant breached the contract; and (4) the plaintiff sustained
damages because of the breach. See S&S Emergency Training Sols., Inc. v. Elliott,
564 S.W.3d 843, 847 (Tex. 2018) (citation omitted); Ace Real Prop. Invs., LP v.
Cedar Knob Invs., LLC, No. 09-19-00375-CV, 2022 WL 120016, at *8–9 (Tex.
App.—Beaumont Jan. 13, 2022, pet. denied) (mem. op.).
40
In her Response in the trial court, Telegina asserts that he had multiple affairs,
and by doing so breached their Prenuptial Agreement. Specifically, Sections VIII
and IX of the Prenuptial Agreement and the Annexes prohibited adultery or either
spouse contacting individuals designated as “persona non-grata.” If either party did
so, under the Prenuptial Agreement, the offending spouse had to pay the other spouse
$50,000. Even so, the Dissolution Agreement terminated the Prenuptial Agreement,
rendering it “null and void,” except for specified provisions. The parties did not
designate adultery, “persona non-grata,” and Annex provisions as surviving the
contract’s termination. Under the Dissolution Agreement, Nechayuk agreed to pay
Telegina $340,000 and the parties agreed they would assume the responsibilities set
forth in the Dissolution Agreement, which they agreed was “exhaustive and no other
responsibility resulting from the marriage or dissolution of the marriage will be
assumed by any of the PARTIES.” Since the summary judgment evidence
conclusively establishes that the parties’ adultery provisions and Annex from the
Prenuptial Agreement did not survive termination, Telegina cannot show Nechayuk
breached their Agreement, which is a requisite element of her breach of contract
claim. See Elliott, 564 S.W.3d at 847; Ace Real Prop. Invs., LP, 2022 WL 120016,
at *8–9. Therefore, Nechayuk was entitled to summary judgment on Telegina’s
claim that he breached the Prenuptial Agreement by committing adultery. See Tex.
R. Civ. P. 166a(c).
41
Next, we address Telegina’s claims that the trial court erred by granting
summary judgment on her claims that Nechayuk breached the Dissolution
Agreement by: lying to her about their 2016 tax return, preventing her from
accessing the return, and keeping the tax refund; and delaying the initial payment
under the Dissolution Agreement. Regarding the 2016 tax return and refund claims,
that claim predated the parties’ Dissolution Agreement, and is also resolved by the
parties’ express language that their agreement was “exhaustive” and “no other
responsibility resulting from the marriage or dissolution of the marriage.” The
evidence conclusively establishes the parties’ Dissolution Agreement did not require
return of the 2016 tax refund, which predated the Dissolution Agreement. Since the
Dissolution Agreement did not require this, Nechayuk has likewise negated the
requisite breach element. See Elliott, 564 S.W.3d at 847; Ace Real Prop. Invs., LP,
2022 WL 120016, at *8–9. The trial court properly granted summary judgment on
Telegina’s claim that Nechayuk breached the Dissolution Agreement by failing to
return the 2016 tax refund. See Tex. R. Civ. P. 166a(c); Zive, 644 S.W.3d at 173;
Henkel, 441 S.W.3d at 251.
Finally, we examine her claim that Nechayuk breached the Dissolution
Agreement by paying a portion of the first installment two days late. Nechayuk
argues in Motion for Summary Judgment that Telegina “has not shown nor can she
establish that she suffered any monetary loss as a result of the two-day late partial
42
payment.” The parties’ Dissolution Agreement outlines a payment schedule
requiring Nechayuk to pay the first $100,000 installment to Telegina within one
week after the Russian Consulate issued the divorce certificate. The evidence
establishes they Nechayuk paid the entire $100,000 in $25,000 installments over
four days due to “bank procedures” but was two days late with one of the payments.
The evidence also shows that Telegina accepted the $100,000 and did not complain
at the time. Once Nechayuk established that Telegina was not damaged when he paid
a portion of the first installment two days late, the burden shifted to her to present
evidence creating a genuine issue of material fact on damages. See Energen Res.
Corp., 642 S.W.3d at 514 (citations omitted); see also Tex. R. Civ. P. 166a(c). Since
she failed to do so, the trial court did not err in granting Nechayuk’s summary
judgment on her claim that he breached the Dissolution Agreement by making part
of the first payment two days late. See Energen Res. Corp., 642 S.W.3d at 514
(citations omitted); see also Tex. R. Civ. P. 166a(c).
We overrule issues ten and twenty.
C. Special Exceptions and Dismissal of Telegina’s Remaining Claim
We now turn to issue sixty-five and the trial court’s dismissal of Telegina’s
sole remaining claim that Nechayuk breached the Dissolution Agreement by
“collecting information on or interfering in [her] life.” Telegina contends the trial
43
court abused its discretion when it imposed death-penalty sanctions against her by
dismissing this claim.
On December 23, 2020, Nechayuk also filed a separate Motion to Dismiss
based on Telegina’s repeated failure to comply with the trial court’s orders
sustaining his special exceptions that required her to replead and cure the pleading
defects. Telegina filed multiple petitions alleging various causes of action. Starting
in February 2020, Nechayuk filed special exceptions, motions to strike, and motions
to dismiss these various petitions. On February 11, 2020, the trial court sustained the
special exceptions and first ordered Telegina to replead. The trial court thereafter
sustained Nechayuk’s additional special exceptions and ordered Telegina to replead
five other times, including on November 23, 2020. The trial court’s November 23
“Order on Petitioner’s Motion to Reconsider Order on Respondent’s Special
Exceptions to Petitioner’s Sixth Amended Petition, Motion to Strike and Motion to
Dismiss” addressed deficiencies in Telegina’s Sixth Amended Petition and required
her to file a seventh amended petition curing the pleading defects by December 4,
2020. 2 As with the prior orders, the trial court warned Telegina that “failure to
comply with this order may result in dismissal of her suit[.]”Telegina chose not to
amend her petition.
2On October 19, 2020, the first trial judge voluntarily recused herself. On
Telegina’s motion, the new judge reconsidered the previous judge’s ruling on special
exceptions to the Sixth Amended Petition.
44
On March 5, 2021, the trial court signed a separate Order granting Nechayuk’s
Motion to Dismiss filed on December 23, 2020. The Order states that “to the extent
any issues remain following the Court’s Order Granting Respondent’s Motion for
Summary Judgment, the Court GRANTS Respondent’s Motion to Dismiss in its
entirety.”
1. Standard of Review and Law
A trial court has broad discretion to grant special exceptions, and an appellate
court will not disturb the trial court’s ruling absent an abuse of discretion. Ford v.
Performance Aircraft Servs., 178 S.W.3d 330, 335 (Tex. App.—Fort Worth 2005,
pet. denied); Hefley v. Sentry Ins., 131 S.W.3d 63, 65 (Tex. App.—San Antonio
2003, pet. denied); Mowbray v. Avery, 76 S.W.3d 663, 678 (Tex. App.—Corpus
Christi 2002, pet. denied); see also Hoover v. J&J Home Inspections, No. 09-13-
00454-CV, 2015 WL 367105, at *4 (Tex. App.—Beaumont Jan. 29, 2015, no pet.)
(mem. op.). If the party fails to amend after being ordered to do so, or if the amended
pleading fails to state a cause of action, the trial court may dismiss the
case. Mowbray, 76 S.W.3d at 677–78; see also Gallien v. Washington Mut. Home
Loans, Inc., 209 S.W.3d 856, 862–64 (Tex. App.—Texarkana 2006, no pet.) (A trial
court generally should afford a party the right to amend and cure the defect before
striking a claim, but a trial court has the inherent power to strike a party’s pleadings
and enter judgment for the opposing party in response to repeated noncompliance
45
with the trial court’s orders.) (citing Humphreys v. Meadows, 938 S.W.2d 750, 753
(Tex. App.—Fort Worth 1996, writ denied)). “Accordingly, a trial court may strike
pleadings and enter a judgment for the opposing party or dismiss when the party fails
to replead ‘in response to repeated noncompliance with the trial court’s
orders.’” Hoover, 2015 WL 367105, at *4 (quoting Gallien, 209 S.W.3d at 864). If
the trial court sustains special exceptions and requires a party to replead, the party
must obey the court’s order and file a curative amendment or suffer the consequences
of dismissal. Hoover, 2015 WL 367105, at *4; Hefley, 131 S.W.3d at 65. “[T]he
right to amend is not unlimited and it ‘does not extend to the privilege of multiple
opportunities to amend in the face of repeated grants of special
exceptions.’” Hoover, 2015 WL 367105, at *4; (quoting Mowbray, 76 S.W.3d at
678).
2. Application
The trial court sustained Nechayuk’s special exceptions and ordered Telegina
to replead six times. The trial court admonished her if she failed to cure the pleading
defects, her claims could be dismissed. The trial court ordered her to file a seventh
amended petition to cure defects in her Sixth Amended Petition, which she failed to
do. Given the trial court’s repeated orders to replead and her failure to cure the
pleading defects, we conclude the trial court did not abuse its discretion in dismissing
Telegina’s remaining claim that Nechayuk breached the Dissolution Agreement by
46
collecting information on her or interfering with her life. See Hoover, 2015 WL
367105, at *4; see also Gallien, 209 S.W.3d at 862–64; Mowbray, 76 S.W.3d at
677–78. We overrule issue sixty-five.
D. Attorney’s Fees
We turn to Telegina’s claim that the trial court erred by awarding Nechayuk
attorney’s fees and costs for defending the lawsuit. We address issues ninety-four
and ninety-five, in which the trial court erred by failing to require Nechayuk to
segregate his attorney’s fees. She also contends the evidence is legally and factually
insufficient to support the award, because the jury awarded “significantly more” than
Nechayuk requested.
Nechayuk requested attorney’s fees in the trial court. He pleaded for
attorney’s fees in his Answer and requested them in his Motion for Summary
Judgment. In October 2021, he also filed a separate Motion for Attorney’s Fees after
the trial court granted his summary judgment while leaving open the issue of
attorney’s fees. With his Motion for Attorney’s Fees, Nechayuk attached many
exhibits, including, among others, messages from Telegina dated March 16 and 17,
2017. In the messages, Telegina threatens to litigate and advises Nechayuk to hire
lawyers in multiple countries, warning that if he did not contact her and “come to an
agreement” within “24 hours” they “will be engaged in litigation till there will be no
courts on earth left. And then we’ll start litigation on Mars[.]” Before trial, Telegina
47
filed her “1st Amended Combined Motion for Clarification, Reset of Trial Dates and
Request for Amended Scheduling Order, Motion for Continuance, Motion to
Compel, Motion to Rule,” which included a request that the trial court require
Nechayuk to segregate his fees based on her Sixth Amended Petition. The trial court
denied her Motion to Compel and ruled that Nechayuk did not have to segregate the
bills for attorney’s fees after reasoning that the trial court may award fees in a divorce
suit and that all Telegina’s claims alleged in her suit for divorce and that the
attorney’s fees were solely for representing Nechayuk in the divorce. She again
complained about the lack of segregation in her “Emergency Motion to Stay Trial
Court Proceedings or in the Alternative – Motion to Reconsider Court’s Order of
May 3, 2022 Motion for Continuance.”
The parties tried the sole issue of attorney’s fees to the jury, but the trial court
did not require Nechayuk to segregate his claim for fees. Following a jury trial, the
trial court awarded Nechayuk the following attorneys’ fees, consistent with the
jury’s answers: $816,871.50 to defend against the divorce suit and mandamus
actions in the trial court; $150,000.00 for representation in the court of appeals;
$30,000.00 to file a petition for review in the Supreme Court of Texas; $100,000.00
for merits briefing in the Supreme Court of Texas; and $20,000.00 through oral
argument and completion of Supreme Court of Texas proceedings. The trial court
48
also awarded Nechayuk $10,647.00 for costs and expenses incurred to defend
against the suit and related mandamus actions.
The jury heard testimony from Nechayuk’s lawyer, Tasha Peeples regarding
the attorney’s fees and costs incurred. Evidence was admitted showing Telegina’s
threats to continue litigation “there will be no courts on earth left” and “on Mars.”
Additional evidence admitted included an itemized list of Telegina’s filings and
pleadings through the course of the litigation, CVs for Nechayuk’s attorneys, the
letters of representation with the attorneys’ rates, documentation showing itemized
fees and expenses through June 2022 were $683,254.76, attorney’s fee invoices
itemized by timekeeper, date, hourly rate, task, and time spent, and fee invoices for
Nechayuk’s experts and Russian translating services. The jury also heard Peeples’s
testimony that she believed Telegina would appeal, and they were asking for
reasonable and necessary fees if that occurred. Peeples explained that after June
2022, in July and August, they incurred an additional $100,000, plus each day they
were in trial it cost approximately $10,000 to their client. The trial lasted five days.
Peeples also testified that Telegina was litigating “very aggressively,” so they “had
to defend very aggressively.”
Peeples also testified that she believed handling the matter for Nechayuk at
the Court of Appeals level “could easily be 50,000 to $75,000” given the types of
pleadings Telegina filed in the past. If she filed a petition with the Supreme Court of
49
Texas, Peeples testified it could be $15,000 if the Court did not request a response,
but if it did, it would cost another $50,000 if there was no oral argument. She
explained that if the Court granted oral argument it “could easily be another 10 or
$15,000.”
Peeples testified that the attorney’s fees incurred by Nechayuk were
“reasonable, … necessary, and required.” Peeples testified they were seeking
attorney’s fees under every available avenue, including under Family Code
provisions and for breach of contract. Telegina’s expert on attorney’s fees, Nicholas
Dupre, also testified. He did not challenge the amount of fees incurred by Nechayuk
or contest that they were reasonable and necessary.
1. Standard of Review and Applicable Law
We review a trial court’s grant of attorney’s fees for an abuse of discretion,
but we review the amount of attorney’s fees awarded under a legal sufficiency
standard. See Messier v. Messier, 458 S.W.3d 155, 165 (Tex. App.—Houston [14th
Dist.] 2015, no pet.) (discussing fees in the context of divorce and post-divorce
enforcement action). As noted elsewhere in this opinion, a trial court abuses its
discretion when it acts arbitrarily or unreasonably or without reference to any
guiding rules and principles. See Downer, 701 S.W.2d at 241–42. Since we review
the amount of attorney’s fees awarded under a legal sufficiency standard, we will
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affirm if more than a scintilla of evidence supports the award. See Wal–Mart Stores,
Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003).
Attorney’s fees are recoverable only when allowed by statute or by the parties’
agreement. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310 (Tex. 2006).
The Family Code authorizes the award of attorney’s fees, costs, and expenses in
divorce actions and in post-divorce actions. See Tex. Fam. Code Ann. § 6.708
(authorizing award of attorney’s fees, costs, and expenses in divorce action), § 9.013
(authorizing award of costs in an enforcement action), § 9.014 (authorizing award
of attorney’s fees in enforcement action). Likewise, attorney’s fees are authorized in
a breach of contract cause of action. See Tex. Civ. Prac. & Rem. Code Ann. §
38.001(8).
Generally, when a lawsuit involves multiple causes of action, claimants are
required to segregate fees between claims for which they are recoverable and claims
for which they are not. Chapa, 212 S.W.3d at 311. “Segregation is not required when
attorney’s fees are recoverable for all causes of action.” Land, 561 S.W.3d at 639–
40 (citing Law Office of David E. Williams, II, P.C. v. Fort Worth Tex. Magazine
Venture, LP, No. 02-10-00373-CV, 2011 WL 2651865, at *4 (Tex. App.—Fort Worth
July 7, 2011, no pet.) (mem. op.)). Additionally, “when discrete legal services
advance both a recoverable and unrecoverable claim[,] ... they are so intertwined that
they need not be segregated.” Chapa, 212 S.W.3d at 313–14; Land, 561 S.W.3d at
51
640. One of our sister courts has explained, “The language of section 6.708 is very
broad, and we construe it to give the trial court discretion to award a party any or all
of its costs incurred in a suit for dissolution of a marriage, even if the suit includes
other claims as well.” Smith v. Deneve, 285 S.W.3d 904, 918 (Tex. App.—Dallas
2009, no pet.).
2. Application
The record reflects that Telegina sued Nechayuk for divorce despite the fact
the parties had already obtained a divorce from the Russian Consulate. The record
further shows that despite the incongruent nature of the causes of action, Telegina
sued for breaches of the Dissolution Agreement and Prenuptial Agreement while
simultaneously arguing those agreements should not be enforced. The record
likewise establishes that Telegina sought a post-divorce division of community
property, despite the Prenuptial Agreement and Dissolution Agreement expressly
characterizing the parties’ property as separate. The record also shows that for years
she repeatedly filed lengthy motions regularly exceeding a hundred pages with
exhibits that were redundant and asking the trial court to reconsider its prior rulings.
Telegina’s claims required Nechayuk to defend against a divorce action, post-
divorce division claim, and claims for breaches of contract simultaneously.
Additionally, he had to defend against her other asserted causes of action for torts
and fraud in the inducement of the contract, and Nechayuk necessarily had to prove
52
the validity of the contracts and their enforceability. That was required to determine
whether the contracts preclude those causes of action where the Dissolution
Agreement states it is “exhaustive” and meant to outline the parties’ responsibilities
and “to settle once and for all what each of the PARTIES owes” the other. Since the
“discrete legal services” by Nechayuk’s attorneys needed to defend against the
divorce suit, post-divorce division claim, and establish the enforceability of the
agreements precluding her tort and fraud claims, the recoverable and any non-
recoverable claims “are so intertwined that they need not be segregated.” Chapa,
212 S.W.3d at 313–14; Land, 561 S.W.3d at 640; see also Tex. Fam. Code Ann. §§
6.708, 9.014; Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8).
As for the sufficiency of the evidence for the attorney’s fees incurred in
defending the case through trial, the jury heard evidence that Telegina aggressively
litigated this case. The jury also heard testimony and saw other evidence that
supported the amount of attorney’s fees in this case through trial. Nechayuk’s experts
testified that the fees incurred were reasonable and necessary, which Telegina failed
to contradict. Since more than a scintilla of evidence supports the attorney’s fees
awarded through trial, we conclude the evidence was sufficient to support the award
of attorney’s fees incurred in the trial court. See Canchola, 121 S.W.3d at 739. We
overrule issues ninety-four and ninety-five in part as it relates to the attorney’s fees
incurred in the trial court.
53
That said, the record reflects the jury awarded almost double the amount of
attorney’s fees for each stage of the appeal. On the upper end of Peeples’s estimation,
the cost of attorney’s fees for appeal would be $155,000.00, but the jury awarded
$300,000.00. “When an appellant complains that the evidence is insufficient to
support a trial court’s award of attorney’s fees and we agree but conclude the
evidence is sufficient to support an award of a lesser amount of fees, we may suggest
a remittitur of the fees under Texas Rule of Appellate Procedure 46.3.” Wendt v.
Moore, No. 14-22-00263-CV, 2024 WL 4456965, at *8 (Tex. App.—Houston [14th
Dist.] Oct. 10, 2024, no pet. h.) (mem. op.) (citing Advanced Tech. Transfer & Intell.
Prop. Grp. LLC v. Krenek, 627 S.W.3d 540, 547 (Tex. App.—Houston [14th Dist.]
2021, no pet.); Corral-Lerma v. Border Demolition & Env’t Inc., 467 S.W.3d 109,
128 (Tex. App.—El Paso 2015, pet. denied)). Here, since the evidence is legally and
factually sufficient to support an award of appellate attorney’s fees to Nechayuk of
$155,000.00 but not in the amount found by the jury and included in the judgment,
we suggest a remittitur in the amount of $145,000.00. See id.; see also Tex. R. App.
P. 46.3. We sustain issues ninety-four and ninety-five in part and to the extent they
challenge the amount of the appellate attorney’s fees awarded.
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IV. CONCLUSION
Except the award of appellate attorney’s fees, we affirm the trial court’s
judgment. We affirm the award of appellate attorney’s fees conditioned on the
remittitur of $145,000.00. See Tex. R. App. P. 46.3. If Nechayuk files a remittitur of
$145,000.00 with this Court within fifteen days of this opinion and notifies this
Court of the same, we will reform the trial court’s judgment and, as reformed, affirm
the judgment. See id. at 46.3, 46.5. If the Clerk of this Court does not receive
Nechayuk’s remittitur within fifteen days of this opinion, we will reverse the trial
court’s judgment as to the entire award of appellate attorney’s fees and remand the
cause to the trial court for a new trial on the issue of appellate attorney’s fees.
AFFIRMED IN PART, CONDITIONALLY AFFIRMED IN PART WITH
REMITTITUR SUGGESTED.
W. SCOTT GOLEMON
Chief Justice
Submitted on June 24, 2024
Opinion Delivered December 12, 2024
Before Golemon, C.J., Johnson and Chambers, JJ.
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