Falk & Mayfield L.L.P. v. Molzan

HUDSON, Before FOWLER and ASK ME ABOUT ROBERTSON,* JJ. THE OF LAW FIRM FALK & MAYFIELD AND OPINION ATTORNEY ANGELA HUDSON, Justice. MOGAN MCALLISTER DETAILS INSIDE Attorneys Mayfield David Falk and Marc appeal Mayfield their law firm Falk & Ruggles Several customers of Grill and a awarding triple investigator from a order private attor- retained * sitting by assignment. Justice Sam Robertson 215(2)(b)(8). Thus, they inquired fees.” Tex.R.

reported that when about Crv. P. trial court’s sanction appellant claims the sign, referenced “details” cost of not have exceeded the personnel should told restaurant however, states, the list- The rule fees. had filed a “frivolous lawsuit” inclusive, not exclusive. See attempt in an food ed sanctions restaurant extort 215(2)(b). Accordingly, while money employee owner. One re- Tex.R. Civ. from the P. 215(2)(b) certainly au- provision of Rule to the cause of action as “bulls—t” ferred in imposition sanctions following day, thorizes of appellants lawsuit. The sued fees, libel, slander, interpret attorney we do not Ruggles amount of the owner of Grill or $500,000 being the nature of a limitation seeking of it privacy and invasion as $1,000,000 damages ceiling upon exemplary actual such sanctions. damages.1 may imposed Sanctions be later, appellants non-suited Several months can be variety of and their function reasons immediately Appellees their entire case. or in na compensatory, punitive deterrent purpose reinstate for the of filed motion to ture. Natural Gas See TransAmerican awarding sanctions under Rule At the (Tex. Powell, 913, 922 Corp. v. 811 S.W.2d appellees’ mo- conclusion of the 1991) (Gonzalez, J., concurring). exam For sanctions, tion for trial held that abuse, discovery sanc ple, imposed for appellants’ suit was (1) seeming primarily at tions are directed purpose in bad faith for the of harassment. rules, (2) discovery compliance de with The court further concluded that sanctions litigants terring from similar miscon other Mayfield

were warranted Falk and (3) duct, punishing the violators. See individually, pay and each was ordered to 623, Harris, Arkla, Inc. S.W.2d 628 v. 846 $21,180. sanctions, The total award for 1993, no (Tex.App.-Houston [14th Dist.] $42,360, therefore, triple was or the amount writ). 13, imposed Rule When under howev attorney appellees’ of fees. er, purpose chief of sanctions is to cheek process. pleading further abuses error, point their first of (Tex. Grider, 811, 818 Monroe v. awarding the trial contend court erred 1994, denied); App.-Dallas Home Own triple attorney fees a sanction because its Corp. Scheppler, v. Funding ers America authority awarding “compen- limited of was 884, (Tex.App.-Corpus 815 889 S.W.2d satory,” “punitive” rather than sanctions. writ). 1991, degree of deter Christi words, argue other sanc- if inextricably a sanction is rence achieved case, tions were warranted in this the trial punitive is related its effect. Restitution im- court was authorized under Rule 13 to punishment; simply it is the restoration pose appellees’ attorney equaling sanctions or of a caused one’s own misfeasance loss fees, authority but had no award sanctions hold, therefore, that a trial malfeasance. We appellees’ expenses. over and above circumstances, may, appropriate court under provides Rule 13 that where a is impose sanctions under Rule 13 excess groundless and filed in bad has been faith for expenses by the the costs or incurred defen hai’assment, purpose of the court shall Accordingly, imposi trial dant. court’s un- impose appropriate sanction available times the amount tion of sanctions for three 215-2b. See Tex.R. Civ. P. der Rule attorney per impermissible fees was not 215(2)(b) grants Rule the trial court authori- se. just.” such ... as are ty to “make orders 215(2)(b). imposed under The rule sanctions See Tex.R. Civ. also While P. may punitive, they must be examples eight specific Rule 13 be also recites sanctions Smith, Valley, “just.” v. 921 imposed. such sanction See Butan N.V. One th 822, including (Tex.App.-Houston expenses, [14 S.W.2d “reasonable MOGAN MCALLISTER 1996, after the lawsuit ATTORNEY ANGELA 1. On January day changed read: filed, COMMITS ABUSE LAWSUIT I FEEL THAT THE & CHEF BRUCE LAW FIRM OF FALK MAYFIELD & propriety just employed metaphor Dist.] term hyper tive ness of a is a bole, sanction matter which expression opinion is an which may differ, reasonable we minds must absolutely protected by the First Amend therefore extend to the trial mea court some ment the United States Constitution and sure Accordingly, of discretion. “[a] I, article Section the Texas Constitution. impose court’s decision to under .Brasher, v See Carr S.W.2d Tex.R. Civ. P. will not be overruled on (Tex.1989) (“All pro assertions appeal unless an abuse of discretion is tected the first amendment of the United Management, shown.” Zarsky v. Zurich I, States Constitution and article section 8 399 (Tex.App.-Houston S.W.2d Constitution.”); Yiamouyiannis the Texas v. 1992, writ); Notgrass Equi [14th Dist.] (Tex. Thompson, 764 S.W.2d 340-41 Corp., lease denied). 1988, App.-San writ Antonio n.r.e.). 1984, —Houston[1st Dist.] writ ref'd The test for of discretion “whether abuse “groundless,” A lawsuit is not and any court acted without reference 13, subject therefore to sanctions under Rule guiding principles,” rules and or “whether merely plaintiff pursue because a chooses to arbitrary the act was or unreasonable.” Monroe, a case. “weak” 884 S.W.2d Inc., Aquamarine Operators, Downer v. 701 “Groundless,” 13, 817. as used in Rule 238, (Tex.1985). S.W.2d 241-42 arguable means “there is no basis for the Here, trial ap court examined Attorney of action.” cause General Texas pellants’ they pleadings and concluded 210, Cartwright, S.W.2d filed in bad faith for the 1994, denied) (em [14th Dist.] Houston writ purpose of harassment. That conclusion is added). Here, however, phasis appellant’s amply supported by an of the examination vacuous, blatantly is so lawsuit it is hard pleadings. An essential element of libel “is any lawyer, layman, conceive that or even a that alleged defamatory statement be a absurdity.3 not immediately would its discern opinion.” statement of fact rather than viability, Having legal the value of this (Tex. Hecht, Howell v. solely upon power cause action rests its denied). Here, App.-Dallas intimidate and coerce. meaning ambiguous, of the is somewhat appellants but at most it accused of “lawsuit Moreover, to establish element of “bad say abuse.” engaged To one has faith,” appellees two offered witnesses who legally lawsuit abuse is to accuse him of allegedly of other testified frivolous lawsuits manipulating justice system gain the civil by appellants. filed One defendant testified advantage personal an unfair commer sued for “negligent was rescue” when he dispute. judgment cial It is an individual pulled plaintiff Clear from Lake. Accord- solely eye that rests in the of the beholder. defendant, ing plaintiff, who had Admittedly, derogatory the accusation is socializing become intoxicated while disparaging, this is but no different than boat, fell overboard. After the defendant scurrilous, saying ugly, disgusti that one is lake, plaintiff pulled the from she dried not, ng.2 The term “lawsuit abuse” does off, drinking. years and continued Two la- fact, convey usage, its common a verifiable ter, is, nature, “negligent sued him for its somewhat res- but indefinite ambiguous. figura- claiming it is a plaintiff suffering Because loose and cue” was from false, abusive, Welch, 339-40, unpleasant, 2. "A statement v. Robert 418 U.S. Gertz objectionable being (1974). ... without defamato 94 S.Ct. 41 L.Ed.2d 789 ry.” 437, Sys., Schauer v. Memorial Care S.W.2d st (Tex.App.-Houston [1 Dist.] Appellees’ attorney he informed testified both writ.). appellants’ counsel that the cause attorney ap- Appellees’ was frivolous. also told Under the First Amendment there is no such pellants he would seek no sanctions if thing pernicious would as a false idea. However an seem, their opinion may depend dismiss cause of action before his client we correc- its juries expenses. judges legal Appellees’ tion not on the conscience of incurred further competition but on the of other was rebuffed. ideas. offer half and a filing of one for the sanction allegedly suffered a clavicular dislocation light lawsuit. million dollar frivolous was rescued.4 when she us, say cannot before we the record case, attorney testified an another Accordingly, ap- its discretion. court abused client, builder, into a home entered error is overruled. point of pellants’ first purchase a small money contract to earnest pend- sale still tract of land. While point of argue in their Appellants second pro- ing, builder and the Falk sued both the was not en- cause of action error that their injunc- spective seeking temporary seller greater portion tirely and that frivolous constructing prevent tion to the builder from claim, proper. Appellants suit was of their attorney, property. two houses therefore, in award- trial court erred that the real who is certified commercial board attorney gen- fees ing upon sanctions based estate, predicated injunction testified defending the entire while erated face, that, deed restrictions their action. cause of express expired pursuant to the Mayfield their lawsuit filed Falk Never- covenants. terms of restrictive January against appellees on theless, prospective the builder canceled Thereafter, Mayfield retained Mi- Falk and purchase of the seller. with the consent represent them the suit. chael Garrett to Falk, in- builder’s then contacted Garrett filed Plaintiffs On March him that his client had never formed Original dif- First Petition which Amended contract, executory anything than an other only original petition the slightly fered from money that the earnest contract had been later, by Mayfield. days Falk Two filed and canceled, in the and that he had interest Although filed a notice of non-suit. Garrett property. attorney re- The builder’s further Mayfield, the Falk and trial court sanctioned quested that his be the client dismissed from it concluded that sanctions were warrant- suit. against Because ed Garrett. Garrett was builder, pro- Rather than dismiss the Falk sanctioned, appellants the trial court contend naming petition ceeded to file an amended must the First Amended have concluded the alleging builder as a defendant and facts Original by filed Garrett was neither Petition longer that true. In the amended groundless Appellants nor filed in bad faith. (1) alleged petition, Falk the builder had original petition was theorize that their since agreement purchase entered into an the very original to the first amended similar (2) property in question, the builder had Garrett, only petition by portion filed a small (3) reputation “shoddy for workmanship,” original petition must have been sanc- the multiple that the construction of residences therefore, argue, that Appellants tionable. property existing would violate deed appellees for at- compensated should be (4) restrictions, plaintiff, adjacent and the an defending against torney generated fees owner, property adequate remedy had no suit, portion of the but that small entire prevent prospective law to construction. and filed in groundless the suit which was injunction, requested Falk independent an bad faith. impact study paid environmental to be defendants, fees, reasonable however, “enti judge, trial all other and such further relief to which history of ease tled the entire to consider might plaintiffs show themselves to enti- v. DeHa before him.” Allied Chemical Co. Although ultimately tled. suit was dis- ven, (Tex.App.-Houston later, months missed 18 builder incurred writ). Further, 1992, no he was [14th Dist.] unnecessary legal expenses defending while obliged to whether the offensive determine against himself a frivolous suit. attorney, conduct was referable to the Co., evidence, face this party, Remington the trial court Arms both. $42,360 Caldwell, just n. 9 apparently was a Inc. concluded boat, Appellants polluted into which the 4. also sued the owner of the claimed had the water alleg- present plaintiff plaintiff aspiration lake water who was not fell over- fell. The board, lungs. edly plaintiff’s "pits” numerous businesses which caused (Tex.1993). true, Garrett did not bigs, initiate the suit if justify even do not sanctions. against appellees, although he filed an Appellants argue appellees had the burden of petition, days amended proving followed it two the libel suit was later with a notice of non-suit. The trial filed in bad faith. Because no evidence was court have taken these facts into regarding consid offered the facts and circum- concluding eration when no sanctions were surrounding suit, stances of the against warranted Garrett. It logi appellants does not contend findings the trial court’s follow, cally contend, cannot be sustained the evidence. plausible trial court found some merit Appellants correctly observe that the trial First Original Amended Petition. Accord findings court’s highly unusual many ingly, appellants point second of error supported are not However, evidence.5 without merit. appellee’s request for sanctions was not error, point the third facts, grounded upon con- contested ap- but tend there is insufficient pellants’ evidence to pleadings. pleadings While are not the trial findings court’s normally and that the find- cognizable evidence of the events judge, particulars, 5.The in his lawyers, statement of higher duty 12. As Plaintiffs have a following made the observations: average litigant stop type than the public opprobrium against legal profession 1. filed this Plaintiffs lawsuit less than one justice system, day perpetuate put portable after rather than Bruce Molzan Houston, Texas, it. front of his restaurant in Currently, lawyers doing good public invited the abuse, are not to ask him about lawsuit job acting way put in such a that will Mayfield, the law firm of an end Falk & type Angela Mogan to this dissatisfaction. McAllister. Original attorney’s 14. Defendants have In their incurred Petition and in their $14,120 9, 1996, defending fees of January demand letter this lawsuit and dated Plaintiffs seeking accurately depict did not Defen- contents of Mr. Plaintiffs. attorney put sign. dants' Molzan's Plaintiffs on notice in writ- ing that sign 3. Defendants would not seek Plaintiffs believed the sanctions if accused them abuse, committing Plaintiffs dismissed their lawsuit before Defen- sign lawsuit but the did required say dants were to file an that. answer and spend money defending time 4. and vague The term this lawsuit. "lawsuit abuse” is and Plaintiffs declined meaning. does not have a to do so. definite It is a hyperbolic expression 15. opinion, Sanctions should be assessed under not a verifia- ble Texas statement of fact. Rules of Civil Procedure 13. filed, sign may 5. The 16. After the have offended Plaintiffs lawsuit was Plaintiffs discomfort, caused represent them retained but it was not action- Michael J. Garrett to them. Thereafter, put able. Defendants' voluntary Plaintiffs on filed a Plaintiffs notice of writing notice in prejudice. before this lawsuit nonsuit was filed without All of Mr. Garrett’s sign protected speech pleadings that Mr. Molzan’s good were filed in faith and no sanc- under the First against Amendment. tions will issue him his law firm. By initially seeking temporary 6. restrain- 17. Sanctions should be assessed order, ing picked up by which was Harper Christopher the local May- David field, Falk and Marc press, Plaintiffs increased attorneys originally whatever dis- the two who filed this sign lawsuit, by comfort Mr. good Molzan’s caused them because cause has been shown. calling everyone’s sign. $42,360, attention to the appropriate 18. An sanction is Plaintiffs, lawyers, already 7. attorney’s which is three times the fees in- public short end of the stick curred Defendants. This will ade- sanction polls. Defendants, quately repair punish the offend- ers, quick 8. Plaintiffs were too to take offense and deter them and others from future adequately investigate and failed filings. the facts or applicable $1.5 law before million 19. Half of the total sanction should be the lawsuit. responsibility Harper of David Falk and half 9. Plaintiffs should have responsibility realized the better should be the of Marc Christo- response would have pher Mayfield. been to ask Mr. Molzan sign L.L.P., very to take the down Mayfield, because it was not 20. The law firm of Falk & tasteful. jointly severally responsible should be for 10. Plaintiffs should not have filed this law- the entire sanction. groundless suit. It is Payment in bad faith of this sanction shall sus- purpose and for the pended appellate harassment. until an court determines Filing frivolous lawsuits like this one whether or not this sanction is an abuse of only perpetuates discretion, lawyers rumors about timely and the or until Plaintiffs fail to file legal system put and will not appeal. an end to them. their notice of light plead- show, they filed in bad faith. therein,6 do was alleged alone, trial court not believe the ings we do here, alleged defamatory statement was concluding the suit discretion its abused state absolutely both our privileged under solely of harass- purpose for the was filed and federal constitutions. ment. Nevertheless, imposes “Rule “to ‘check purpose of Rule 13 is abus duty point trial court to out with ie., insure that pleading process, in the es particularity or omissions on which the acts challenged pleading was filed at the time Zarsky v. Zurich sanctions are based.” factually grounded litigant’s position was (Tex. Management, County v. legally Tarrant tenable.’” th writ).7 App.-Houston [14 Dist.] Chancey, Here, correctly as Justice Fowler observes ground A suit is Worth —Fort judge’s irreg dissenting opinion, her the trial fact. if it in law or less has basis question ular as to whether findings raise a Here, there is no material Tex.R. Crv. P. 13. complied provision of the rule. with this facts, appellants’ regarding the dispute findings are cer While court’s written is, face, nakedly on its frivolous. suit tainly emulate no model for other courts to findings necessary essential par attempting to draft a statement of made the trial court. sanctions were ticulars, satisfies, document mini least Moreover, findings supported are these mally, requirements of Rule 13. Most Accordingly, ap pleadings evidence. importantly, the trial found: pellants’ overruled. point third of error is Plaintiffs filed this than one lawsuit less error, point appel final In their portable day put after Bruce Molzan lants contend trial court abused its dis Houston, in front of his restaurant Tex- degree by imposing sanctions. The cretion as, that invited the to ask him about is, the trial court we discretion afforded abuse, lawsuit the law firm Falk & believe, imposed greater when sanctions Mayfield, Angela Mogan McAllister. pleadings imposed than when discovery imposed for abuse. Sanctions vague The term “lawsuit abuse” is discovery litigant’s impede a abil abuse often meaning. does definite It is a “ ‘[tjhere such, ity present ease. As hyperbolic expression opinion, anot ver- power limitations are constitutional ifiable statement of fact. courts, of in aid of their own valid even may have offended or Plaintiffs processes, af to dismiss an action without discomfort, caused them but it was not hearing fording opportunity a party for ” actionable. on the merits of his cause.’ TransAmeri can, “ Thus, at a sanction 811 S.W.2d 917. Plaintiffs should not have filed law- discovery no more ‘for abuse should be groundless It brought suit. satisfy bad necessary legitimate severe than its ” purpose Level, 15, faith and for the of harassment. purpose.’ v. 917 S.W.2d Hamill (Tex.1996). always The trial court must 16 one fact Whether accusation is or possibility explore the of whether lesser opinion, defamatory, hence it is whether compliance might compel sanctions with the question is a of law for the court. See Sim discovery rules and correct the abuse (Tex. Ware, 438, mons v. 920 S.W.2d 446 has occurred. See Occidental Chemical writ); Carr, 1996, no App.-Amarillo 776 (Tex. Banales, 488, Corp. v. 490 907 S.W.2d Here, S.W.2d at 570. the court concluded 1995). was, of lawsuit accusation abuse as law, opinion. 13 imposed matter of statement of We When sanctions are under Rule faith, filing agree. groundless court further concluded the suit suit bad for Hecht, at Tex.R. 6. Howell v. 821 S.W.2d 631. must be stated in the sanction order.” See Civ.P. 13. may imposed this rule "No under be cause, good particulars except for of which 828

considerations are not the groundless same. Because or brought purposes for the decided, the suit has imposition 13; been of harassment. See Tex.R. Civ. P. GTE Tanner, sanctions under Sys. these Corp. circumstances does not Communications v. 856 (Tex.1993). litigant’s 725, obstruct a access to the courts or S.W.2d 730 Rule 13 defines presentation threaten the “groundless” having his ease “no basis in law must, the merits. Rule 13 sanctions fact and by good as we not warranted argu faith said, just, extension, modification, and a tidal court ment does not for the or re authority have unfettered punish existing an of versal of law.” Tex.R. Civ. P. not, fender. He example, purpose for sanction The of the rule is to check abuses in simply him applications pleading process. innovative See Home Owners law advocating changes or for Funding Corp. Scheppler, the law. America v. 815 Dyson 884, See Corp. Descendant Explo Sonat S.W.2d (Tex.App. Corpus 889 Christi — Co., 942, writ). ration 1991, 861 S.W.2d (Tex.App.— 951 no Trial court work under the writ). 1993, Houston [1st presumption parties Dist.] More and their counsel over, “bad faith” simply judgment papers is not file good faith, bad all party and the negligence. It is the doing seeking “conscious of a pre sanctions must overcome that wrong dishonest, discriminatory, sumption or mali showing and has the burden of purposes.” Campos cious right 13; v. Ysleta General to relief. Civ. P. GTE Tex.R. Hosp., 879 (Tex.App. S.W.2d Sys. Corp., Communications S.W.2d — El denied); 731; Grider, Paso writ Elbaor v. Sander Monroe v. son, denied). (Tex.App.-Fort S.W.2d — Dallas Worth “[rjule addition, requires the trial , However, stated, previously we have evidentiary court to hearing hold an to make light us, pleadings and evidence before necessary factual determinations about say we cannot the trial court abused his credibility the motives and person of the imposing $42,360. discretion in sanctions of signing pleadings, and the Accordingly, appellants’ point fourth of error trial court must examine the facts available overruled, and the trial court’s sanction litigant to the and the existing circumstances order is affirmed. litigant pleading.” filed Kar Schattman, (Tex. lock v. FOWLER, Justice, dissenting. App. 1995, writ); see, e.g., Worth —Fort Tex.R. Civ. P. 13. As Justice Baker wrote I respectfully majority dissent from the when he Appeals, was on the Fifth Court of very First, specific for two reasons. “Without evidence the circum this record is devoid evidence that the surrounding stances of the suit was purposes bad faith or for motives, signer’s credibility and the Second, appellant’s harassment. law- trial court had no evidence to determine that groundless, suit is not “blatantly much less [plaintiff] attorneys or [his] filed the nothing vacuous” or absurd. I find vacuous pleading in bad faith or to harass.” McCain and, mind, about the my only lawsuit to the v. NME Hospitals, 856 S.W.2d thing absurd about this case is the trial (Tex.App. 757-58 no Al judge’s unique and findings unorthodox of — Dallas though give the rule not does a reason for reasons, fact. For these I believe the trial why judge the hearing must hold a and make court abused its in imposing discretion sanc- fact, findings of common sense tells us that it against appellants. tions is to ensure that Rule 13 sanctions are en only they tered are warranted. STANDARD OF REVIEW emphasize I would aspects like to select of NO EVIDENCE TO SUPPORT the standard of review for this case. Accord- FINDINGS ing to Rule a trial court impose attorney, sanctions represented a problems There are two with the trial both, party, or First, 6, 9, who files a which is findings findings court’s of fact. groundless faith, brought 11, 12, either and in bad support and 13 could not a sanction issue, of they parties the act the and order because are immaterial to the trial anof records, witnesses, through in the medium of ultimate issue the case. The ultimate documents, exhibits, etc., objects, concrete judge appel- the issue before whether (1) inducing in the purpose of belief the groundless lants filed a lawsuit that was jury (2) minds the court or as to their conten- of brought and in bad faith tion”) added). fact, only In the (emphasis purposes and of harassment. things accomplished by appellees’ request for 6, 9, 11, Findings inappro- and make (1) agreed judicial judge the as, “Plaintiffs, notice were that priate observations such him, file includ- to consider the whole before lawyers, already on the end of short the knowledge transpired ing of what had his public opinion in polls” “Currently, stick historically the case procedurally and in lawyers job acting doing good are not a in happened hearings in the before what had a way put type such that will an end to this (2) allegations him was aware the dissatisfaction.” These irrelevant pleadings. in the These consider- contained findings bearing immaterial no up prove could the ations did not and support the ultimate issue could allegations pleadings. factual in the sanctions order. Appellees prove up the circum- to fundamental, second, A more insurmounta- surrounding bringing law- stances findings ble flaw affects each of the 20 prove appellants suit before could acted fact: the record no to sup- contains evidence appellee. Appel- harass bad faith port reporter’s them. The record con- prove up these lees did not circumstances. testimony attorney’s tains about fees and two result, reporter’s As record contains allegedly other filed frivolous lawsuits imposition supporting of sanc- evidence fact, Mayfield. Falk & record See, e.g., Sys. tions. GTE Communications contains evidence rele- Corp., (referring at 730-31 856 S.W.2d vant the ultimate issue. There is not even what the evidence in the record showed and any proving language evidence on the noting proof that the record contained no controversy. fact the trial court’s im- essential parties now act as if evidence before sanction); Karlock, position aof appeal. us on The briefs describe the law (holding at 523 has tidal court background rely suit and the facts and a pleading evidence to determine that is filed facts not in the Although appellate record. if bad faith or to harass does not hear rule 38.1 accept authorizes this court to un- surrounding evidence circumstances true, contradieted facts in briefs it does pleadings signer’s credibility not transform those facts into admitted motives); McCain, accord 856 S.W.2d at Tex.R.App. court evidence. See P. 38.1. 757-58. Even if granted appellee’s the trial court parties stipulated Perhaps the back- request judicial to take notice of the court’s ground stipulation not in facts and the evidence, file and the pleadings admit into Perhaps judge his record. made decision allegations pleadings the factual still hearings conduct in him. based on before Hecht, proved. would not be See Howell v. facts, case, parties stipulated if the to the —Dallas stipulation should have been re- either denied) (stating pleadings are not writing duced to and filed in the record or usually legally cognizable considered evi If the based read into the record. dence). prove allegations To the factual part happened decision in on events that pleadings, appellees would still have to him, put hearings before to needed testimony present at documents an and/or is, nothing it we in record. As evidentiary hearing. Hidalgo Surety See testimony the record other than the about Ass’n, Savings & Loan testimony attorney’s fees and about (Tex.1971) (stating pleadings not evi unrelated lawsuits. Dictionary dence); also see Law Black’s th ed.1990) (6 judge him (defining “[a]ny evidence as had no evidence before species proof legally presented findings, ... at is evi- support of there that, surrounding denee of the I conclude because the circumstances had no appellant’s Accordingly, of suit.1 there support evidence before him to the sanctions imposition order, was no evidence to in awarding he abused his discretion sanctions. sanctions. majority apparently decided that the appellees could show bad faith/harassment THE SUIT WAS NOT GROUNDLESS by presenting testimony alleged- about other majority spent Since the a fair amount of ly brought by appellants; frivolous lawsuits discussing petition ground- that the time was appellees presented a witness who was the less, subject. obligated I feel to address the in defendant an unrelated lawsuit and a wit- say pleading ground- a Before a court can is lawyer a in ness who was defendant’s anoth- less, pleading it must conclude that the has But, par- er unrelated lawsuit. none of the in not no basis law or fact and is warranted same, ties in the three lawsuits were the extension, good argument a faith in none the issues the lawsuits were the modification, existing or law. reversal Further, same. no Rule 13 sanctions had 13; Tex.R. Civ. P. GTE Communications case, imposed though been in either even Sys. Corp., 856 S.W.2d at 730. subjected

witnesses felt were to frivo- The elements of libel are defined Texas lous lawsuits. Civil Practice and Remedies Code as testimony This was both irrelevant and expressed in a defamation written or other inappropriate hearing. in a Rule If injure ... graphic form that tends a testimony court used this to conclude that thereby living person’s reputation and ex- appellants’ petition against appellees was hatred, contempt pose person public groundless, it Fur- abused its discretion. thermore, ridicule, injury or to im- testimony if the court used or or financial peach any person’s honesty, integrity, vir- appellants brought petition conclude that harassment, tue, purposes reputation publish faith or to the natural bad or anyone thereby expose abused its discretion. defects of hatred, ridicule, person or finan- hearing, only way judge In a Rule 13 a injury. cial pleading can tell if a is is looking pleading question. at the A court § & 73.001 Tex. Ann. Civ. PRAC. Rem.Code pleading ground- cannot determine if one is (Vernon 1997). by looking pleadings; less at other it must Libelous statements must be construed as allegations governing look to the law in a whole, light surrounding circum pleading groundless. if to decide person ordinary based how stances Likewise, a court cannot determine that a perceive intelligence the entire state would suit has been bad faith or to Rankin, Diaz v. ment. See by looking harass one defendant at other (Tex.App Corpus 498-99 Christi .— lawsuits other defendants. This re- is a Whether a matter is libelous especially striction is most true when a court question of law for the court. See id. has not those other lawsuits to be found complained if determines the But the court sanctionable under Rule 13. Other unrelated import, language ambiguous or of doubtful are, stated, simply irrelevant. The lawsuits jury the state it should allow a to determine only allowing I time that can conceive of meaning and the effect the statement ment’s testimony about other lawsuits a Rule 13 ordinary listener. See has on the reader or 1) lawyers party is if id. at 499. by a Rule 13 for sanctioned court under 2) lawsuit, Appellees claimed the was libelous bringing the the information First, they claimed it was factor for two reasons. was used as an additional opinion, that it determining quintessentially court in the amount verifiable, objectively regard in this to award. lawsuit, surrounding filing of the Possibly, pleading cumstances could be so meritless on its category. prove cir- but this is not in that one would not need to face that recognize to “another First- ed the courts phrase “governmental like the waste.” Sec- defamatory ond, argued protection for they average reader would Amendment-based as phrase categorized ‘opinion’ that the meant an as understand statements which sign seriously. take epithet and would not at 110 S.Ct. opposed to ‘fact’.” Id. appellees law Although presented no case to positions, these Thus, passage not think this from we do majority apparently agrees both these with intended to create wholesale Gertz was contentions. exemption anything that defamation disagree I with both and base conclusions only ... Not might “opinion.” labeled be disagreement primarily my on Milkovich v. contrary interpretation would such an Co., Journal a 1990 United States Lorain passage, of the to the tenor context by appellants Supreme opinion Court cited to ex- ignore also the fact that but it would v. the trial court. See Milkovich Lorain “opinion” may imply often an pressions of Co., Journal 497 U.S. S.Ct. objective fact. assertion of (1990). my opinion, L.Ed.2d Milkovich says, my opinion speaker If a “In John responds appellees’ contentions. both liar,” implies knowledge Jones is a id. I will not recite facts in Milko-v the conclusion that facts which lead to only I need describe debate ich.2 be speak- Even if Jones told an untruth. the court. The fore defendants maintained facts which he bases his er states the allegedly newspaper that an libelous column imply a opinion ... still statement opinion, Relying not fact. on a Simply couching false assertion fact. Supreme opinion, United States Court opinion does such statements terms defendants claimed that facts could be implications; these and the dispel opinions excepted libelous liar,” statement, my opinion “In Jones is a protected laws speech. from libel See id. reputation damage can much cause as Welch, (citing 110 S.Ct. 2695 Gertz statement, Judge “Jones is a liar.” As 418 U.S. 41 L.Ed.2d S.Ct. Friendly aptly de- “[It] stated: would be (1974)). Supreme granted The Court certio- if a could structive of the law of libel writer important questions

rari “to consider escape liability for accusations [defama- by the recognition raised courts’ of a Ohio tory simply by using, explicitly or conduct] constitutionally ‘opinion’ exception required implicitly, the T think’.” words application of its defamation laws.” 10, 110 Id. at S.Ct. 2695. (brackets 18-19, 110 Id. at S.Ct. 2695 acknowledge original). Supreme opin- The Court refused Court held there is no developed factors the lower exception, ion in- number of disavowed the defendants’ Gertz,2 terpretation explained courts a statement was that a to determine whether that, misinterpret- paragraph from an fact. The Court found Gertz been 4-5, facts, Milkovich, Although going I 497 U.S. at 110 S.Ct. 2695 am review I original). newspaper (quotes will set out the column. libelous Milkovich, high said that the coach of a column Scott, superinten- wrestling school team school, differently dent of testified in a court hearing during than had testified an OSHAA 4-5, hearing. Id. at 110 S.Ct. 2695. The column taught their stated Milkovich Scott stu- thing by testimony: their dents one " simply you get jam, your If lie ‘It is this: in a " enough, way you're out. ‘If successful enough, powerful and can sound sincere enough, you chance of mak- stand excellent regardless ing up, really the lie stand of what happened.... "‘Anyone who attended the meet, ... knows in his heart that Milkovich having Scott lied at the after each given tell his solemn oath to the truth.

832 survive, expression phrase the freedoms of could determine that the “lawsuit rely injure an “artificial appellee’s reputation court must not on dichoto- abuse” could 19, my ‘opinion’ between and fact.” Id. at allegation that such an these circum under See, S.Ct. 2997. financially injurious. e.g., stances was Buck, Frank B. Hall & Co. v. majority rely on the The cases the cites 612, (Tex.App. [14th Dist.] artificial and fact distinction between —Houston n.r.e.) (stating that the com writ ref'd rejected by Supreme Court. The Yiam disparaging munication of remarks like “clas ouyiannis Thompson opinion majority slander), sociopath” and “zero” sical is cert. predates relies Milkovich and cites denied, Supreme U.S. 105 S.Ct. very language from Court Gertz against misinterpreting L.Ed.2d 720. cautioned too broad n.2; ly. majority Yiamouy opinion at See answering questions, we would After these Thompson, iannis v. S.W.2d ask if the act were accused of then denied), Antonio — San committing susceptible being proved 1021, 110 cert. denied 493 U.S. S.Ct. Appellees’ allegations true or false. of law- (1990). fact, majority In L.Ed.2d 742 very specific suit abuse stemmed from a inci- opinion appears rely very on the distinc dent and lawsuit. Based on the file before tion disavowed court Milkovich us, appears capable being that it states that “an essential element of libel is proved true false. defamatory alleged that the statement be a opinion.” statement of fact rather than See my job, appellant’s It not to defend majority opinion p. lawsuit, but to determine if the lawsuit has looking Instead of at whether the column my any arguable basis in law or fact. “opinion,” Supreme was Court U.S. arguably opinion, phrase “lawsuit abuse” looked first at “whether a reasonable factfin- statement, and, defamatory my opin- is a could that the statements in the der conclude ion, appellant’s arguable lawsuit has an basis imply petitioner ... that column assertion Therefore, I would find that the trial law. judicial perjured pro- Milkovich himself in a holding that court abused its discretion Milkovich, ceeding.” 497 U.S. at 110 appellees’ groundless.4 suit was then asked S.Ct. 2695. Court whether summary, trial court abused its the' per- that Milkovich committed inference against ap- entering discretion in jury sufficiently susceptible factual to be findings fact are un- pellees because the being proved true or false. Finding ap- supported by record. that inqui question guide should us in our This three and four pellants’ points of error ry. apply questions If one were to these sustained, I reverse the should be would ease, if a fact one would ask reasonable reasons, I re- For these sanctions award. (1) appellees finder could conclude ac spectfully dissent. engaging in lawsuit cused (2) abuse, phrase “lawsuit injure appellant’s repu

abuse” would tend exposing public contempt,

tation them to ridi

cule, injury impeach appel or financial or to thereby integrity reputation

lant’s hatred, ridicule,

expose appellants to injury.

or financial Tex. Prac. & Civ. (Vernon 1997). § 73.001 Ann. Rem.Code depending pleadings,

Based on juror arguably testimony, a reasonable issue, restraining request If Having my opinion appellant’s for a order. I can- stated obviously help thought blatantly the district but also mention that she vacuous, the suit sitting ancillary judge for the Harris Coun- required appellees she should not ty merit, have felt the suit had some district courts must charges. respond to the she set for a show cause because

Case Details

Case Name: Falk & Mayfield L.L.P. v. Molzan

Court Name: Court of Appeals of Texas

Date Published: Jun 18, 1998

Citation: 974 S.W.2d 821

Docket Number: 14-96-01134-CV

Court Abbreviation: Tex. App.