Gary Phillips v. Boo 2 You, LLC George Steven Smith And Linda K. Smith
03-14-00406-CV
| Tex. App. | Oct 23, 2015Background
- Plaintiff Gary Phillips sued appellees Boo 2 You, LLC and George and Linda Smith claiming a partnership and owed profits; trial court granted summary judgment for appellees.
- Phillips relied in his summary-judgment response and on appeal on "deemed admissions" he asserted were established by his Requests for Admissions.
- Appellees (initially pro se) filed a Motion to Set Aside Deemed Admissions; the trial court granted that motion from the bench on May 20, 2014, before ruling on summary judgment.
- Phillips did not include the Motion to Set Aside or the reporter’s record of that hearing in the portion of the appellate record he requested; appellees supplemented the record and paid for the reporter’s transcript.
- On appeal Phillips continued to treat the (now set-aside) deemed admissions as part of the record and, in his reply brief, attempted to challenge the validity/effect of the trial court’s undeeming order for the first time.
- Appellees moved for appellate sanctions under Texas Rule of Appellate Procedure 45, seeking $20,491.79 in appellate fees and costs, arguing the appeal was frivolous and the omissions/misrepresentations were intentional.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity/effect of trial court's setting aside deemed admissions | Phillips treats deemed admissions as evidence creating fact issues | Smiths: trial court properly "undeemed" admissions before summary-judgment ruling; admissions were not considered | Trial court properly set aside deemed admissions; they were not evidence for summary judgment |
| Completeness of appellate record / omission of Motion to Set Aside | Phillips omitted the reporter's record and motion from requested record; relied on omitted items as evidence | Smiths: Phillips intentionally omitted material items so appellate court would not see the undeeming ruling | Omitted record items would be presumed to support trial court; omission undermines appellant's position |
| Raising new issue in reply (challenge to undeeming ruling) | Phillips asserted in reply that the undeeming ruling was invalid and prejudicial | Smiths: new issue not preserved; Texas appellate rules bar new issues in reply briefs | Appellant barred from raising new error in reply; the argument is untimely and improper |
| Sanctions under Tex. R. App. P. 45 for frivolous appeal and misrepresentation | Phillips contends the admissions/support create reversible error | Smiths: appeal objectively frivolous, misrepresented record, acted in bad faith; seek just damages (fees) | Court may find appeal frivolous and award just damages; appellees requested $20,491.79 in fees incurred |
Key Cases Cited
- Howell v. Texas Workers' Comp. Comm'n, 143 S.W.3d 416 (Tex. App.—Austin 2004) (appellate rules do not permit raising new issues in a reply brief)
- Wheeler v. Green, 157 S.W.3d 439 (Tex. 2005) (trial courts have broad discretion to withdraw deemed admissions)
- Nat. Cas. Co. v. Lane Exp., Inc., 998 S.W.2d 256 (Tex. App.—Dallas 1999) (bench rulings granting relief are valid even without written order)
- Glassman v. Goodfriend, 347 S.W.3d 772 (Tex. App.—Houston [14th Dist.] 2011) (appellate court must determine appeal is frivolous before awarding Rule 45 damages)
- Smith v. Brown, 51 S.W.3d 376 (Tex. App.—Houston [1st Dist.] 2001) (objective test for frivolous appeal considers counsel's reasonable grounds)
- Enterprise Leasing Co. v. Barrios, 156 S.W.3d 547 (Tex. 2004) (when record is incomplete on appeal, the omitted evidence is presumed to support the trial court)
- Christiansen v. Prezelski, 782 S.W.2d 842 (Tex. 1990) (appellate presumptions where evidence omitted)
- Tate v. E.I. DuPont de Nemours & Co., Inc., 954 S.W.2d 872 (Tex. App.—Houston [14th Dist.] 1997) (factors for awarding appellate sanctions)
- State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374 (Tex. 1993) (appellant must negate all possible grounds supporting summary judgment)
- Star-Telegram, Inc. v. Doe, 915 S.W.2d 471 (Tex. 1995) (reviewing court affirms summary judgment if any ground is meritorious)
- Twist v. McAllen Nat'l Bank, 248 S.W.3d 351 (Tex. App.—Corpus Christi-Edinburg 2007) (appellate counsel should not misrepresent the factual record)
- In re Hasbro, Inc., 97 S.W.3d 894 (Tex. App.—Dallas 2003) (discipline for misrepresenting record on appeal)