Herring v. Welborn

HERRING, Appellant, Lemuel O. WELBORN, Kubicek,

Michael Donald Corrigan,

Richard Joseph, Robert

Murray Guaranty Co., Title Robert

Hyatt, Cynthia Hyatt, Appellees.

No. 04-99-00473-CV. Texas, Appeals

Court of

San Antonio.

July 2000.

Rehearing Aug. Overruled

Lazarte, Holstein, Rick Law Office of Rick Holstein, Corpus Christi, Janna K. What- ley, Joseph P.C., Sinton, & Whatley, Rich- Antonio, ard P. Corrigan, San Appel- lee. HARDBERGER, PHIL

Sitting: Chief Justice, LÓPEZ, Justice, ALMA L. PAUL GREEN, W. Justice.

OPINION Opinion HARDBERGER, by: PHIL Chief Justice. appeal

This arises from order of dis missal and of by award sanctions the 81st Judicial Court in District Wilson County. however, dispute, The underlying stems from a sale of land ordered the San County Patricio during Court at Law (“Eth probate of Ethel Herring’s Arnetta el”) estate. The land is located in Wilson County. appellees, One of the Michael Welborn, has filed a motion to sanction Lemuel and his counsel for filing frivo appeal. lous We affirm court’s order dis- missal, modify it preju- but to be without dice. We vacate trial court’s award of deny sanctions and Welborris motion for appellate sanctions.

For Ease Reference Several individuals are mentioned throughout opinion: /

Plaintiff His Appellant, Family, His Counsel Herring Lemuel O. Plaintiff Appellant / Herring Ethel Wife; Arnetta Lemuel’s Deceased Daughter Katina Brauchle of Lemuel & Ethel; Former Administra- trix of Ethel’s Estate Son; Robert Ethel’s Jimmy Keys Stepson Paula S. Waddle Lemuel’s Attorney / Defendant Appellee Movant Sanctions I Judge, Michael Welborn San Patricio County at Law. This court Court Dorn, Gail Berry, Jr., William H. Paula sitting Ethel’s estate and ordered sale Waddle, Christi, Corpus S. for Appellant. of the land. Whitten,Law James M. Offices James Defendants Appellees I Whitten, Christi, Corpus M. Kirk Dockery, Donald Kubicek Successive Ad- Dependent P.C., Floresville, Dockery, Donaho & of Ethel’s Es- ministrator Lazarte, Frank A. Law Office Frank A. tate of the Land. Purchasers Robert & Cynthia Hyatt (and Thirteenth law the the facts The Hyatts’ Attorney Robert Joseph facts) after the to those applied Court Corrigan Pa- The San The Receiver. Richard Cor- tricio court appointed purchase the Hyatts signed contract rigan would when Lemuel land: sale not consummate the the Hyatts. [administra- and an Ethel died When Escrow Title Co. Title Company Murray Guaranty ... Agent. ... the ... land appointed trix] assets, into her other along with passed, We refer San ad- court” and control management as the “San Patricio Court at Law During District Court as estate. and the 81st Judicial ministrator her estate, Except and Lemu the ... “trial for Ethel court.” administration ... el, surnames people refer to their an order court issued [San Patricio] refer uniformity. ... to sell and We authorizing for convenience the administrator land_ .,. as “the land.” land in Wilson to the [administratrix] [the] authority, [then] had the of estate [her] appeal springs third is the This court, to by Patricio] of the [San order of Ethel’s estate. from the administration community interest in entire convey the 970 Herring, In re S.W.2d Estate of including inter- property, the 1998, no Christi (Tex.App.-Corpus 588 party.... ... to third est I); also In re Estate pet.) (Herring see of or- property real a sale of (Tex.App.-Corpus [W]hen Herring, 61 II). approved by the and In dered pet.) (Herring Christi court, has the I, the [administratrix] the San Herring Keys Lemuel sued trans- to a deed prop- authority and execute community court to recover property.... fraudulently such erty alleges ferring title to that he Ethel II, requirement Lemu- is no additional Herring transferred him. In There to ap- community of a interest el attacked the San Patricio the holder carry join out the to in the deed.... pointment property of a receiver the court-ordered sale of the land. II, (emphasis 63 983 at Herring S.W.2d deed, added). sign the Lemuel refused to

BACKGROUND the transaction have allowed which would of community property The land was pay off the debts and Brauchle to to close died, Herring. Ethel and Lemuel Ethel community. The unclear record of the Brauchle, Lemuel, Keys. by and survived events, San of but the sequence as to the an undivided interest Lemuel inherited appointed soon Kubicek Patricio court land; inherited an of the each child 1/2 Eth- of dependent administrator successor n interest of the land. undivided Thirteenth According to the el’s estate. eventually inter- quit-claimed Brauchle her Court: Lemuel. The court later est to issued Patricio] court later [San [T]he awarded Lemuel the interest held to sign Lemuel compelling an order Keys. The trial court made this award ... ... refused and Lemuel deed.... failed way Keys constructive trust when of administrator, present successor Herring /was re- at trial after appear Kubicek, sought appointment Donald to the San Patricio court. manded com- purpose of for the sole receiver of the estate, conveyance and pleting the sale Ethel’s During mo- The ... court heard the property. money contract Hyatts signed an earnest a receiver sell Brauchle, appointed dependent administra- tion with proceeds, estate, property and distribute purchase the land. tor of Ethel’s present debts administration, finding that estate dependent the sale As a only out of could be satisfied [that] of the San subject approval property, proceeds from sale following excerpt Patricio court. has a sales summary presently the estate helpful II Herring provides a property contract for the trial [Lemu- not the San Patricio court. Ac- order, el] convey. refuses to Lemuel, From that cording to the trial court erred brings present Lemuel interlocutory dismissing the suit.

appeal, ... challenging right appoint court to a receiver. a. Standard of Review Id. 63-64. The court concluded that the Whether the trial subject court had [San Patricio] court had “discretion ap- matter question “is a of law point carry a receiver to out the order of subject to de novo review.” See W. Wen sale.” Id. at 65. eventually The estate Hall, Texas, dell Standards Review in conveyed the Hyatts. land to the Mary’s (1998). 29 St. L.J. We Unsatisfied with the outcome in the San review the trial court’s dismissal courts, appeals Patricio and by construing pleadings in Lemuel’s brought suit Wilson County, where the looking favor and his intent. See Texas located, Welborn, Kubicek, land is Bd., Ass’n Bus. Texas Air Control Corrigan, Joseph, Hyatts, Murray (Tex.1993). Guaranty. addition to several causes of action, Lemuel sought temporary re- Construing b. Pleadings

straining temporary injunction and enjoin the defendants from further “en- alleges the San Patricio cumbering, subdividing, deeding, transfer- improper procedures followed in sell- ring or affecting otherwise property.” the ing In petition, the land. original his Le- The trial granted the temporary re- muel asserts various causes of action to straining order. ownership restore his interest and obtain separate The defendants pleas filed probate redress for the allegedly court’s jurisdiction. the In addition improper receivership court-ordered and questioning jurisdiction, the court’s Wel- sale: born filed motion for sanctions. At the (cid:127) (Lemuel declaratory judgment asked hearing, granted the trial court the defen- the trial court conveyance to void the pleas jurisdiction. dants’ to the The court to the Hyatts quiet and title in favor of then awarded sanctions to the defendants Lemuel); on the they basis the amount expended in attorney’s fees. (cid:127) (while cancellation of the deed sale was pending, pen- Lemuel recorded a lis appeal, On Lemuel raises four issues. County; dens Wilson he asserts 1) He asserts that the by: trial court erred improper, that the transfer was among dismissing jurisdic- the case for a lack reasons, pen- other because of lis 2) tion, 3) sanctions, awarding denying the dens, consideration, inadequate and in- application temporary injunction, and adequate prior notice 4) dismissing suit prejudice. with sale);

court’s order of Discussion (cid:127) (he legal conversion seeks both title land); possession and 1. Jurisdiction San Patricio Statuto- ry (Issue One) County Court at Law (cid:127) paid recovery money (Joseph, Kubi- issue, cek, In his first Lemuel asserts that and Murray Title received funds jurisdiction closed). over this case lies with the when the transaction pendens Although The lis is irrelevant. Property Lytton, Law, Handbook on Texas Real may pendens 22-12, Tubb, transfers still made after a lis (citing King § at 270 recorded, party acquire "the third will no (Tex.Civ.App.-Corpus 551 S.W.2d 436 Christi better title than that which remains 1977, writ)). vendor at close of the suit.” Lee H. court, “the addition, county punitive dam- constitutional

In Lemuel seeks county courts.” See id. ... Hyatts jurisdiction the transfer ages because 25.0003(d). requires Probate Code § far market value. allegedly below to be filed and motions applications injunctive relief Lemuel also seeks court or the constitutional San any bar the defendants that would county court: Lemuel states further action on land. not want petition that he does his ais statu- where there those counties Herring pending land sold outcome of law, court, county tory probate /lawsuit, on the which dealt with fraud exercising the statutory court or other son, Keys. community Ethel her court, appli- all of a issue: disposed //court Herring cations, regarding petition and motions allega- fact Herring “The made shall be probate and administrations compo- affect the might tions fraud in such and the filed and heard courts estate, Herring amount sition county rather than constitutional community ultimately his may receive for courts, otherwise in the district unless interest, [probate] deprive does not provided by legislature.... prior out ability carry of its 5(c) (Vernon § Supp. Tex. PRob.Code Ann. opportunity for order of sale before the added). 2000) (emphasis Because stat- II, Herring that sale lost.” utory county court San Patricio at 65. jur- “exercising original probate is a court punitive damages Other than the isdiction,” hear “all it has the relief, a res- injunctive only Lemuel seeks 5(e). an estate.” Id. matters incident to ownership toration his interest calls land. Because the standard review jurisdiction Patricio court’s San by intent this court to ascertain Lemuel’s broad, and includes the probate matters is favor, construing in his pleadings his there “probate wills ... and transact power to (possibly overlapping) are two results that appertaining subject all business estates possible construing believe his we are administration the including ... settle- pleadings: ment, and distribution such partition, 3(ii), §§ estates.” See petition filed the trial court Ann. Tex. PRob.Code (Vernon Supp.2000). apper- 4 In matters to a on the amounts collateral attack estate, incident, the taining, San proceedings San Patricio court’s be- power “all court to handle Patricio has alleged procedural

cause deficiencies incident to actions for trial of title land complaints; are at the heart of his ... all matters generally an estate and/or ... of estates.” relating to the settlement sought 2. The relief trial court 5A(a) (Vernon Supp.2000). § id. See an objection amounts to to the sale request and a sale ordered county such as Traditionally, courts (and by the Patricio court other San County at did Patricio Court Law the San activities) be halted. development probate jurisdiction. enjoy such broad not this con- In order to resolve the effect of Standerfer, Note, Greg Pro See Statute struction, probate must examine Ex 5: Jurisdictional bate Code Section jurisdiction the San Patricio court. Is It Through Con pansion Redefinition: the San c. The Probate Jurisdiction of stitutional?, Baylor 291, L.Rev. 291-95 Patricio Court recently has reviewed (1985). This court jur background probate statutory history has one San explained Legisla isdiction county court. See Tex. Gov’t Code Ann. (Vernon statutory county § This statu- ture has broadened Supp.2000). 25.2071 county has, jurisdiction: court’s tory court concurrent with the amended, expanded particularly county As section 5 ... [in] where the jurisdiction county pro- located, of the property probate a even while bate to allow it matters open.” remains The cases to which he estate, hear all matters incident to an cites, however, distinguishable are from to, not including, but limited an action to present facts case.

construe a will.... Carroll-Independent v. De- v. Carroll Rodriguez, Garza v. 18 S.W.3d pendent ADMINISTRATION Yet, (Tex.App.-San Antonio pet.). no probate necessary a pending matter is sup- Lemuel cites Carroll v. Carroll to power: invoke that port expansive an view the district Section 5’s clause “matter incident to jurisdiction pendency during estate,” however, jur- will not create probate proceeding statutory county county isdiction for the court in the ab- Carroll, court. See Carroll v. pending probate

sence of a matter.... (Tex.App.-Corpus 68-69 Christi differently, Stated before a can matter writ). Yet, Carroll involved a constitu- be as incident regarded to an estate over county has tional which concurrent county pro- acting probate jurisdiction district with the bate jurisdiction, court would have county when there is no statutory probate proceeding actually must been Legislature created pending.... empowered [A] court with probate jurisdiction. id. exercise See probate jurisdiction may only exercise 5(b) 66; § also Tex. see Ann. Prob.Code probate jurisdiction its in- over matters (Vernon Supp.2000). in- Because Carroll cident to an estate when a mat- administration, independent fur- volved an proceeding ter related to such matter is county court was not ther action already pending.... permitted being because the estate Now, statutory Id. “under current independently. administered Herbst jurisdiction, (Tex. scheme of district 313-14 Sheppard, court can a mat- exercise over 1999, pet. denied); App.-Corpus Christi ter estate incident to an where no 145(h) see also Tex. Prob.Code Ann. acquired jurisdiction court has otherwise 1980). (Vernon Carroll, pres- the Unlike over the Id. estate.” dependent ent involves a administra- case statutory in county tion court. “provide full quick

The desire to and settlement of a decedent’s estate in sin h Kent-In Goodwin Court Were

gle proceeding” underpinnings Which forms the Pleadings the Filed First? of the intent to the Legislature’s broaden scope statutory county jurisdic of court Kent, appeals In v. the court Goodwin Note, Standerfer, Greg tion. See Statute (the County which considered court Court Probate 5: Code Section Jurisdictional or County of Smith the district Law Expansion Through Is It Redefinition: juris County) court in Rusk had dominant Baylor 291, Constitutional?, 37 300 L.Rev. dispute. See diction to resolve a land title Cobb, (1985); English v. 593 see also Kent, 466, v. 469 Goodwin 745 S.W.2d (Tex.1979) 674, (stating that S.W.2d 676 writ). (Tex.App.-Tyler The statu purpose changes the to underlying the tory county court admitted decedent’s the probate the was to “increase scheme independent in will to 1974 as an ‘mat county the courts in See id. at 467-68. No administration. ” full promote ters incident to an estate’ to the had been made that estate showing settlements). and quick See id. at 468. administration was closed. th the 4 petitioned that In Goodwin Dis argues “substantial authori- (where County the ty filing regard- of a trict of Rusk exists for the lawsuit Court located) owner- in to determine his ing real estate title a district land was

139 past ad taxes. See due valorem ship in decedent’s tracts land. one the Crawford Mound, year, petitioned 933 S.W.2d See id. Later that Glass v. Flower Town of County court to determine (Tex.App.-Fort writ de Smith Worth id. then filed title of the land. See Glass nied). requires tax Tax Code The Texas to plea in abatement and motion transfer delinquent ing bring suit for entities County. County to venue from Rusk Smith county where the real tax in the property month, following The Goodwin See id. See Tex. estate is located. Tax Code a Plea in Abatement in Smith filed 1992). 33.41(a) (Vernon § Crawford alleged court and that district County providing provision construed juris- County in Rusk had dominant jurisdiction to a court which dominant (of Judge Kent Smith diction. See id. county over the the land located County) plea overruled Goodwin’s abate- Crawford, at 731. probate. See 933 S.W.2d ment; petitioned Tyler Goodwin then merely stated that The court Appeals of manda- Court of to issue a writ not provisions of and 5A “do sections compel the abatement. See id. mus to judgments foreclosures extend found both appeals that courts property taxes on lo property delinquent hear de- have “at least the county outside the cated ap- a title Id. at 469. The cide issue.” Id.; Bailey v. Cherokee proceeding.” see county that peals court stated Dist., County Appraisal duty petitions had a to dismiss the (Tex.1993) statutory (stating that the County. filed in id. Goodwin Smith County, court in county Cherokee Yet, re- apparently the court reached this jurisdiction, was exercising probate dispute title had not sult because the been past hear a due proper court to suit previously filed the Smith court. See id. ad tax instead of the district court valorem he petition Lemuel states his County). in Cherokee objected throughout probate pro- “had case, present Lemuel cites the In the ceedings in San Patricio sale mandatory provision venue for suits involv- addition, when the property.” his suit in ing support maintaining land probate court issued an to sell Le- order county. See Wilson Tex. Prac. & Rem. Civ. land, approv- muel’s followed an order 1986). (Vernon Yet, 15.011 Ann. Code (as sale, ing party) he interested brought that suit be requirement “the complained could have then the sale was one county where the land is located is improper. Finally, Lemuel’s counsel con- jurisdic- privilege, and not venue issues, during argument ceded oral tion, may it be waived.” Camellia personal property such as should whether Chance, Diced Cream Co. pay have been sold first (Tex.Civ.App.-Houston no 561 debts, estate remain unresolved. These writ). jurisdictional requirement The reasons, light Patricio court’s of the San good policy makes sense Tax Code depen- continuing supervising role taxing authorities to be it allows because estate, of Ethel’s dent administration2 litigate county. in one See to Craw- able the trial court’s dismissal of Le- support ford, 933 S.W.2d at 730. muel’s suit. Ginsberg-The Gaynier (4) (3) v. District v. Town of Flower Mound-A Crawford Statutory Retains Jurisdiction Over Some Court to Limit PRObate Jurisdic- n Matters tion the Dallas Gaynier Ginsberg, v. v. in- Town Flower Mound Crawford type of Appeals addressed which taxing Court of volved a suit entities recover independent. was possibility, 2. the administration One unclear from Goodwin opinion, is that it reached its result because 140 (district jurisdiction

court or had county) partition proceeding among pro- heirs to ceed county a suit in a sought to remove court at law no a trustee because probate proceeding pending was in the impose a constructive trust. Gay See court). words, statutory “In other (Tex. v. Ginsberg, nier 462 pendency probate proceeding of a is a writ). App.-Dallas appeals The requisite for a jurisdic- exercise court concluded that because district tion over matters related to it.” The Id. jurisdiction courts have to remove trust court, authority broad San Patricio ees, the jur district court maintain should which ongoing continuing because of the isdiction over the suit. See id. estate, administration of Ethel’s exists explained The court also “[w]hile County exclusion of the Wilson district amendments to the Texas Constitution and court in matters that are incident to jurisdic the Probate Code did broaden the estate. probate courts, tion they did not take The authority San Patricio had away jurisdiction the district issue an order that authorized the sale. courts.” Id. “[A]s far as in [the] action (Vernon See Tex. § Prob.Code Ann. 355 imposition volves the aof constructive 1980). The court’s action “in confirming trust, it properly brought in the dis disapproving report of sale Prop.Code Id.; trict court.” see Tex. “force and effect” of a final judgment.” 115.001(a) (Vernon 1995). Although Le such, Id. As “any person interested in the imposition sought muel of a constructive estate or shall right the sale have the trust when I Herring was on remand to have such as in decrees reviewed other the San Patricio he does not seek judgments proceedings.” final Also, remedy present case. added); Id. (emphasis Dignowity see v. suggest facts that Gaynier involved an Baumblatt, Tex.Civ.App. 363, 366, 38 85 independent administration, may S.W. see also Heath v. (1905); outcome, have affected as discussed Layne, (1884). Tex. above Carroll. Gaynier, conveyance Resolution of the S.W.2d at 462. Hyatts, probate-court, aby ordered is vital management to the overall and settlement d. The Court Not Err in Trial Did Dis- conveyance the estate’s debts. If missing Lemuel’s Claim voided, satisfy then the estate will need ways. its in other debts Because Lemuel’s The trial did err not in dismissing pleadings attack a sale ordered the San Lemuel’s claim for a lack sale, the proper Patricio court’s method several related reasons. Lemuel to seek relief is to exhaust his procedural remedies with the San Patricio PROBATE AUTHORITY OF SAN THE pursue then an appeal accord- Encompasses Patricio Court This Law- ingly. during Lemuel’s actions the estate suit support administration Under result. Legislature has the Kent, Goodwin the Wilson dis- increase statutory county or diminish jurisdiction. trict court not should exercise jurisdiction. and district court To complained about sale end, Legislature this the has conferred in throughout the of Ethel’s estate jurisdiction upon broad the San Patricio the alleged San Patricio court and attacked court, statutory a county empowered (cul- procedural deficiencies there as well probate. in probate proceed to sit Once a II). minating in Herring is ing way, under the statutory county TRump (2) Requirements JuRisdiction Ven- authority court’s to deal with all matters ue Provisions incident triggered. to an estate is See Dembrinski, Schuld requirement jurisdictional This (Tex.App.-Dallas pet.) provision (allowing “trumps” bringing a the venue objection in locat- hear the for several county suit the where the land is to First, afforded the concept, the Tax reasons. the is ed. To illustrate this (discussed above) its opportunity to correct mistake. Sec- exam- provides an Code ond, responsible the court is because a for de- ple jurisdictional requirement estate, change in any the settlement tax suits linquent ad valorem suits. These disposition of asset affect the might the county in in which brought must be Third, its ability satisfy debts. estate’s is Practice the land located. The Civil judicial economy favors consolidated ser- provision Code’s venue for suits Remedies in than one court rather ies actions Al- jurisdictional. relating land not many multiple litigation in courts. We county land is though the in which the imagine anything cannot more chaotic than mandatory located venue for land- parties and their counsel visit- interested suits, in privilege litigating related of our state’s 254 ing various courts county may jurisdic- A that waived. disputes in to settle land (such counties that requirement tional as contained that from the administration of an Codes) arise prece- Tax in the Probate or takes sitting in has estate. The court requirement. dence over a venue authority complex, broad to resolve the interwoven, that and difficult matters County (8) foe Wilson is Not APPROPRIATE present for its consider- parties interested Against Relief Adminis- SuccessoR Legislature ation. believe that our We TRATOR to be authority to allow that exer- intended injunctive Lemuel seeks relief3 possi- cised in as unfettered manner punitive Kubicek, damages from the suc ble. cessor administrator. Lemuel asserts dismissal for We affirm trial court’s is, part, against because suit Kubi- jurisdiction. lack in his capacity, cek official the district original juris court Wilson (Issue Hearing Injunctive on Relief If Le disagree. diction this case. We Three) bring muel wished to Kubicek suit proper in a district district court a. Standard of Review relief, injunctive assuming to seek such We review the trial court’s de proper district court were the injunction under temporary nial of forum, County, would be San Patricio standard. See W. abuse of discretion county being in which the estate is Hall, Review in Tex Wendell Standards of 5(a) probated. See Tex. Prob.Code Ann. (1998). Mary’s as, 29 St. L.J. (Vernon Supp.2000). denying trial court abused its discretion injunc temporary application Policy Support Reasons the Wilson law misapplied if to the estab tion it County CouRt’s Dismissal of Lemuel’s reasonably ifor the evidence lished facts Pleadings supports the conclusion that Lemuel has Finally, policy recovery. State v. support probable right reasons sitting trial court’s dismissal. A court Bell Tel. Co. 526 S.W.2d Southwestern (Tex.1975). reviewing issue the trial has the orders application, land of Lemuel’s regardless the administrator sell denial from the county legitimate located. If an draw “all inferences land is sale, objects in a manner most favorable to the party interested to the evidence judgment.” the orders is the best trial court’s issued injunctive that matter on re- problem court resolved 3. A related relief such, Herring the issue is moot and there question relates to the I. mand. As resolution provided by Lemuel that using longer Her- pendency Lemuel of the basis If relief, halting supports activity on the land. ring injunctive as a for the San I basis Application b. A. pleading is for an improp- purpose, er in violation of Texas Because the trial court dis Civil and Practice Remedies Code missed the lawsuit a lack jurisdic for 10.001(1); section and tion, its decision not to hold a hearing on B. legal arguments Plaintiffs injunctive proper relief was as well. A pleading not are warranted ex- jurisdiction subject over matter law, isting in violation of section of the case authority is essential to its 10.001(2). decide the merits of the case. See Texas Welborn sought also sanctions under Tex- Bus., Ass’n 852 S.W.2d 443-44 as Rule of Civil Procedure 13. At the (Tex.1993); Southwest Airlines v.Co. cf. hearing, joined defendants Wel- Auth., Texas Highr-Speed Rail born’s motion or filed their own motions 125-26 (Tex.App.-Austin writ for sanctions. denied) (concluding that trial court properly dismissed Southwest Airlines’ The court specifically found that Lemuel injunctive for suit relief after the court had 10.001(l)-(2) and Waddle sections violated previously decided it lacked subject that of the Texas Civil Practice and Remedies jurisdiction matter to determine the air Code.4The trial awarded sanctions in line’s suit judicial review of an agency favor of each defendant the amount of order). stop par Lemuel’s desire to their respective attorney’s fees. The court ties from carrying the order of out the San held Lemuel jointly and Waddle and sever- Patricio court’s was central to Le ally liable for the sanctions. The trial muel’s ease. We overrule Lemuel’s third court also issued an order dismissal with issue. prejudice. argues Lemuel that the trial court erred (Issues 3. Trial Court Sanctions Two in awarding that, sanctions. He also asks Four) in the event this court concludes that the trial court in dismissing did not err for a turn propriety We next to the jurisdiction, lack of judgment that the against trial court’s sanctions Lemuel and modified to reflect dismissal without assume, Waddle. We without deciding, prejudice. Welborn, Kubieek, and Joseph that the trial court had to con- argue that not the court did err dismiss- sider the appellees’ various motions for ing prejudice. with Corrigan, Hyatts, sanctions. Murray agree Guaranty although Welborn moved for sanctions the trial court not err dismissing did Waddle, arguing prejudice, judgment that: with should be statute, Although the court found that another Lemuel and rule or or fall within the sanction, misrepresented telephonic Waddle court’s inherent the dic- notice defendants, given require specifici- tates of specifically it did the statute us not before ty University in the order. See provisions find that trial court’s this conduct violated the (Tex. Welborn, pleaded Bishop, Tex. v. sanctions were filed) App.-Fort pet. (allowing Worth warranted on of this the basis conduct. As a findings result, of fact and conclusions of law when we do not consider this conduct as a they supplied particulars lacking basis for the trial court’s sanctions. See Tex. order). sanctions (Vernon Civ. Prac. & Rem.Code Ann. 10.005 Supp.2000) (stating that "[a] shall de- any award trial court did not sanctions scribe in imposing an order a sanction had, under question if under Rule 13. it Even chapter the conduct court has deter- whether we would choose consider this mined explain violated Section 10.001 and conduct aas basis for sanctions. See Tex.R. imposed”). the basis for the sanction In addi- (stating Civ. P. "[n]o sanctions under tion, we imposed except good are not convinced that this conduct this rule shall be 10.001(1)- cause, supports an particulars award under section of which must be stated (2). order”). Although may support it sanctions under sanction (2) into pay penalty a an order to without to reflect a dismissal modified court; and prejudice. (3) party pay to the other an order Scope of and Review

a. Standard ex- the reasonable the amount of by party other of incurred the penses a trial court’s award We review plead- filing of of abuse of discretion because under the sanctions motion, including reason- ing or College, Del See Kutch v. Mar standard. fees. attorney’s able 506, (Tex.App.-Corpus 831 S.W.2d writ). re scope Our of no Christi 10.004(b)-(c). §Id. before the entire record that was view is party seeking a sanc In order for review id. at 512. We the trial court. See no must little or prevail, there be tions to most conflicting light evidence claims, argu grounds legal no for basis for ruling, trial court’s favorable facts, ments, of or misrepresentation law in favor of all inferences draw reasonable in bad faith. sought action that is legal or See judgment. the court’s id. Mynatt, appeals Skepnek In v. a court’s award of sanctions affirmed trial Applicable Law b. My attorney. Skepnek an provides, part: 10.001 Section natt, Paso (Tex.App.-El 8 S.W.3d signing pleading or motion of filed). findings of Among pet. its by Texas of Civil required Rules fact, explained: fac “[e]ach the trial court by Procedure constitutes certificate Special Appearance tual contention of best signatory signatory’s that evidentiary support” have did not information, belief, knowledge, Special Appearance in the denials “[t]he after inquiry: formed reasonable jur amenability to this Court’s Raymark’s (1) being motion is not pleading or evi by are not warranted isdiction presented any purpose, improper for Conversely, Id. another court dence.” un- to harass to cause including for appellant’s request appeals denied an necessary delay or increase needless cost appellee sought when the sanctions in the litigation; cost of [and] under the not authorized bond (2) defense, claim, legal each or other Marriage re Rules of Procedure. See In pleading or motion contention Richards, (Tex.App. by by law or existing is warranted Amarillo that the pet.) (explaining argument the exten- nonfrivolous may that such a motion appellee believed sion, modification, ex- or reversal of because subjectively reasonable have been isting law or the establishment court). These granted by the it was law.... new severity with which highlight cases must reach party counsel and conduct 10.001 Tex. & Rem.Code Ann. Civ. PrAc. (Vernon 2000). continues, to be sanctionable. Supp. The code limitations on explaining the sanctions Rule 13 sanc- confronting the issue of to the trial court: are available tions, ex- Appeals First Court “ (b) must limited sanction ba- means without ‘Groundless’ plained: repetition to deter what is sufficient by a and not law or fact warranted sis comparable conduct or conduct extension, argument faith an good similarly others situated. modification, law.” existing or reversal (c) may any A sanction include (Tex. 686, 693 Pesikoff, 979 S.W.2d Laub v. following: denied). 1998, pet. App.-Houston Dist.] [1st that the argued per- The movants for sanctions a directive to the violator “be- groundless form, claims were performing, appellant’s or refrain from privilege judicial communication act; cause the 144

clearly bars the appel- response claims which [the His pleadings legal offer further in authority jurisdictional lant] raised this case.... for arguments. [The his argue appellant] Although properly movants] also that the trial [the disa- extension, greed specifically argued interpretation never with Lemuel’s for an case statute, modification, law and these authorities offer at or reversal of law....” Texas least a debatable argument Id. extending jurisdiction to the Wilson district The appeals court held that the trial court. its awarding abused discretion in put, Simply parties disagree over sanctions, explaining: how issue is to be framed and whether Clearly, rule 13 is a tool that must be casting pleadings particular Lemuel’s a available trial egre- courts those light litigating warrants in one forum over gious situations where the of the worst another. attempt reaching system bar uses our for ill motive with- result arguable favorable had legal some regard out to reason guiding and the Any misrepresen- basis. misstatements rule, principles the law. howev- explained, were appear tations to be er, cannot become a weapon used to legal authority inadvertent. The relied punish those with whose intellect or upon misrepresented. was not Lemuel at- philosophic viewpoint trial tempted to stretch to be applicable the law finds fault. Innovative changes It his case. did not work. But because applications law or by the law must rejected the argument correctly was necessity come from creative and inno- it the trial court does not was sane- mean definition, By vative their very sources. tionable.5 changes in the law are from different We conclude that the trial erred and in disagreement with what has been awarding monetary accepted. sanctions. historically We cannot allow rule 13 to have a on chilling effect those (2) With PREJUDICE change who seek in legal precedent. Dismissal We turn next to dismissal with Id. at 693-94. prejudice. Welborn that argues “the trial AWARD OF MONETARY SANCTIONS preju court’s issuance of a with dismissal” case, In present there is dice Appellant “amounts to a directive on scarce evidence of factual misrepresenta from an refrain act.” performing Wel tions that heavily upon bear Le the case. born further calls our to Clough attention interpretation might N.A., muel’s of the ly facts Seguin, v. NBC Bank — debatable, 652, but is not without basis (Tex.App.-San Antonio denied). trial alleged record. Lemuel the is Cloughly, quot writ surrounding sues the land not been permits had ed Rule dismissal litigated, alleging prejudice that his distinct incorpo case was a suit with it because 215.2(b)(5). pending from the estate administration. rates reference Rule at, 5. We example, are unsure of the extent which the appropriate summary issue upon Morales, trial court awarded sanctions based judgment proceeding. See Garza Yet, judicial immunily. during Welbom’s (Tex.App.-Corpus Christi hearing, Waddle clarified that writ) (rendering take-nothing sum- suing capacity. not Rather, Welborn in his official mary judicial judgment grounds on stated, trying stop she "[w]e are sovereign immunity). today Our result does doing anything him from with further prospective litigants not mean have li- property, judicial Your Honor.” Welborn's Rather, judges. cense to sue trial under the pleaded immunity was of the context us, record, light trial facts before Yet, jurisdiction. judi- party's court's hangs uncertainty with over the trial immunity require cial necessarily does not it award, support for its sanctions mone- jurisdiction; judicial lack dismiss for tary appropriate. are not sanctions defense, immunity is a which would be an 215.2(b)(5). id; permitted if his lawsuit. Even to refile see also Civ. P. Tex.R. sanction, prej- with a similar dismissal provide outright Section 10.004 does not beyond list. is “sufficient to incorporation goes another sanctions udice what conduct” repetition of the deter law that ex have not located case We Prac. & Rem.Code present case. Tex. Civ. 10.004 to the dismissal tends section allow 10.004(b) (Vernon Supp.2000). § Ann. prejudice. decline to of cases with We 10.004 dismissals bend section to allow and fourth Lemuel’s second We sustain If the wishes prejudice. Legislature with issues. power empower to trial courts with this impose under the when courts sanctions Appellate 4. Motion Sanctions Code, may- it Civil Practices and Remedies a motion for sanc Welborn filed order, light do In of the trial court’s so. Waddle, claiming tions Lemuel and court are not convinced that the trial pending appeal is frivolous. Wel- preju to dismiss cause with intended why appeal explain does not born a sanction.6 dice as See Tex. Civ. Prac. Waddle) (and respond Lemuel frivolous. (Vernon Supp. 10.005 Rem Code Ann. reply in a brief. allegations ed to Welborn’s 2000). a decision We turn first how Because we are outside appellate regarding award of court the dis considering area of sanctions will be sanctions reviewed. next prejudice, we determine missal with appeals If court of determines that to dis whether the court had the frivolous, appeal may-on an it motion suit with “A tri prejudice. miss Lemuel’s any party after notice and [and] powerless al a cause court is to dismiss response- opportunity for reasonable prejudice’ ‘with after it lacks determining party just dam- prevailing award each subject-matter over the cause.” ages. determining In whether to award Houston, Dep’t Star Inc. v. Texas must not consider damages, court (Tex. 102, Transp., 957 S.W.2d 111-12 appear in any matter that does not 1997, pet. denied); App.-Austin see also briefs, record, papers or other filed Antonio, City Schenker v. 369 San appeals. the court 626, (Tex.Civ.App.-San 5.W.2d 630 Antonio Tex.R.App. P. 45. n.r.e.) (stating writ ref d that because merits, the court did not hold a trial on the grant Whether sanctions is it in dismissing prejudice). erred with reviewing the discretion of the within Hall, If a dismissal with were a W. Wendell Standards prejudice court. See Mary’s Texas, L.J. viable sanction under Practice Review in 29 St. the Civil (1998). Code, argument As long and Remedies we would conclude 514 as Lemuel’s a “reasonable in law and consti that the trial abused its discretion has basis informed, challenge prejudice. good with faith dismissing Because tuted juris- court’s this court’s judgment,” court concluded it lacked the trial diction, juris- probably have had award of sanctions would not be another could Elec. hearing, appropriate. Toward the of the See General Credit diction. end Dist., possibility Corp. Appraisal v. Midland Cent. acknowledged the trial court (Tex.1991) (per cu- could in San that Lemuel refile the suit riam). have that an award of county. The trial should not We stated appeal imposed only “will be attempting sanctions on prohibited have Lemuel from reporter’s replied, though, conclu- "I think that she could supports our The record Court,” argued Judge record that counsel sion. The shows refile it in Welborn's Court, prohibiting for the court consider replied, Judge Welborn's counsel "In County, refiling the "in Wilson from lawsuit yes.” anywhere State of Texas.” clearly appellant if the record shows the Conclusion expectation reasonable of reversal.” We affirm the trial of dis- Campos v. Management Investment Prop- jurisdiction, missal lack but order erties, (Tex.App.-San that it be modified be a dismissal with- denied). Antonio writ out prejudice. We vacate the trial court’s sanctions, award of and we overrule Wel- Campos, the appellant misrepresen- appellate born’s motion for sanctions. plain language Property ted (Green, Code to this court. id. at 358 Concurring opinion dissenting by: J., concurring). appellant’s argu- GREEN, PAUL W. Justice. Campos in supported by ments were not Justice, GREEN, W. concurring PAUL case law. id. at Any 355. citations to dissenting. and case law instead were irrelevant to the I concur in and part part. dissent I appeal. merits of the See id. at 355-56. would affirm the trial court’s order in its appellant, The court sanctioned the deter- and I entirety, appellate would add sanc- mining appellant that the had no reason- Herring. tions against basis for believing able that the case would I majority’s concur with the decision be reversed. See id. Such sanc- affirming dismissing trial court’s order only tions serve punish, not but to dis- lawsuit, I Herring’s but dissent to the ma- litigants suade and counsel from straining jority’s reform decision to the order into judicial resources in faith. bad prejudice deny dismissal without and case, however, present The does not Welborn monetary defendants the sanc- present itself as of devoid merit. Lemuel they tions were awarded below. dispute. does not of twist facts majority says Herring’s attempt is only significant There one disagreement litigate title the land issues Wilson (wheth- regarding one the factual issues County arguable legal had I some basis. Hyatt’s er the received refund of their disagree. Although the land was located money). particular earnest That factual County, property Wilson once the came allegation does not form an underpinning jurisdiction under the of the San Patricio opinion, of our nor im- is that conclusion County probate in- any title issue probable a very reading property without close of volving properly raised reasonably there. argued, It cannot be question. the evidence in creatively, however that title issues fore- The law of is jurisdiction less by judgment closed final in one court Hill, perfectly than clear. v. See Weldon competent relitigated can 268, 274 (Tex.App.-Fort Worth jurisdiction. another court of equal n.r.e.) 1984, writ ref d vari- (regarding the Moreover, harassing the frivolous and sections, statutes, code ous and constitu- Herring’s clearly character of are actions provisions tional relating revealed the fact that he sued the San constituting “jurisdictional an estate ruling judge trial whose of, nightmare”). light perhaps de- like, appeals he did even not now murkiness, spite, managed this I against judge. dismissal his claim advocate a position supported by amply supports believe the record the trial appropriate law citations case stat- Herring brought courts conclusion that interpretation of previous utes. improper groundless pur- lawsuit opinions courts’ area poses. jurisdiction, application and their attorney evidently his plaintiff case, present is not out touch with reali- thought they find a might friendlier forum ty. disagree interpretation We with the County. They not. The Wilson did the case But do law Lemuel. not court made an assessment the situ- think the appeal deny frivolous. We I ation them see no and sanctioned both. I affirm appellate Welborn’s motion for abuse of discretion. would sanctions. sanctions, appel- and would trial court add Herring for frivo-

late sanctions

lously appealing Judge the dismissal of despite judicial clear immuni-

Welborn his

ty- MATA, Appellant,

Joe M.D.,

Joseph SIMPSON, Appellee.

No. 04-99-00499-CV Texas, of Appeals

Court

San Antonio.

July 2000.

Rehearing Aug. Overruled Christi, for Westergren, Corpus

Sam A. Appellant. Mainz, Jr., Kendall, Keith A.

Edward C. Waters, Thornton, Summers, Vaughan E. Brown, Antonio, Biechlin, Dunham & San Appellee.

Case Details

Case Name: Herring v. Welborn

Court Name: Court of Appeals of Texas

Date Published: Aug 4, 2000

Citation: 27 S.W.3d 132

Docket Number: 04-99-00473-CV

Court Abbreviation: Tex. App.