Brian Dierschke and Marvin Dierschke v. Cheryl Lynn Dierschke, Dana Joy Dierschke Nezwek, and Grant Steven Dierschke
03-15-00400-CV
| Tex. App. | Nov 30, 2015Background
- Five siblings (including appellants Brian and Marvin Dierschke and appellees Cheryl, Dana, and Grant) derived interests from a 1979 trust created by Carmelita; successor trustee (Wells Fargo) conveyed undivided 1/5 interests to the five children after Carmelita's 2009 death.
- Appellees sued for partition of the trust lands and an accounting for income appellants had received from farming those lands; appellants refused discovery and the trial court struck their pleadings and entered default judgment on liability.
- The trial court signed a June 1 decree and then a June 16 amended decree (setting aside the June 1 decree and entering a final decree), adjudicating ownership, appointing commissioners, and awarding appellees $264,724.13.
- Appellants (pro se) filed two separate notices/motions to appeal, producing two appellate docket numbers; appellees contend the June 1 decree is not appealable because it was set aside and therefore at least one appeal lacks jurisdiction.
- Appellants challenged admission/authenticity of several documents (deeds, divorce agreement, affidavits) and alleged forgery/perjury; appellees respond that appellants waived evidentiary objections by failing to object at trial and cannot raise affirmative defenses after their pleadings were struck.
- Appellees cross-appeal (cross-point) seeking Rule 45 sanctions (damages for a frivolous appeal) and ask for recovery of $6,012 in appellate attorney’s fees incurred responding to the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction over two appeals | At least one notice challenges the June 1 decree; both were docketed and should proceed | June 1 decree was set aside by June 16 amended decree; an appeal from a set-aside judgment is not permitted; appeals must be bona fide to invoke appellate jurisdiction | Appeal from the original (set-aside) decree is jurisdictionally defective; appellate review runs from the amended/final decree date; court should dismiss the appeal lacking jurisdiction |
| Evidentiary objections / authenticity of documents | Documents (Beesley affidavit, Carmelita deed, divorce instruments, Wells Fargo deed) are forged/false and should not have been admitted | Appellants failed to timely, specifically object at trial; objections waived; many contested documents were not admitted into evidence | Objections waived for failure to preserve error; documents not admitted at trial cannot be considered on appeal; claimed forgery amounts to affirmative defenses that were not pleaded and cannot be raised after pleadings were struck |
| Effect of striking pleadings & default judgment | Appellants contest ownership and accounting findings | Trial court struck appellants’ pleadings for discovery refusal and entered default; default established liability and the pleaded ownership facts as law | Default established appellees’ claims as a matter of law; any evidentiary error would be harmless as ownership and accounting were established by default |
| Rule 45 sanctions for frivolous appeal | Appellees: appellants’ brief raises unpreserved, unsupported claims, cites non‑admitted documents, and is objectively frivolous — request damages ($6,012) | Appellants (pro se) assert fraud and forgery but fail to cite record or preserve issues | Court may impose Rule 45 damages for frivolous appeals; appellants had no reasonable grounds to believe reversal was likely; awarding appellees’ reasonable appellate fees is appropriate (discretionary) |
Key Cases Cited
- Wang v. Hsu, 899 S.W.2d 409 (Tex. App.—Houston [14th Dist.] 1995) (setting aside a judgment renders the first judgment nonappealable)
- Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985) (preservation of error: timely, specific objection required to challenge admission of evidence)
- Brazos River Authority v. Graham, 354 S.W.2d 99 (Tex. 1961) (affirmative defenses must be pleaded or are waived)
- Hagen v. Hagen, 282 S.W.3d 899 (Tex. 2009) (collateral attack on a regular, unappealed divorce decree is not permitted; judgment presumed valid)
- PNS Stores, Inc. v. Rivera, 379 S.W.3d 267 (Tex. 2012) (presumption of validity for judgments attacked collaterally)
- Petro. Solutions, Inc. v. Head, 454 S.W.3d 482 (Tex. 2014) (striking defenses removes them from the case; consequences on appeal)
- Owen v. Jim Allee Imps., Inc., 380 S.W.3d 276 (Tex. App.—Dallas 2012) (spurious appeals impose burdens on parties and courts; courts may impose sanctions to deter frivolous appeals)