*1 A party’s appeal decision should professional judgment
based on made after George JIMENEZ, Appellant, preserved careful review of the record for light applicable standards of Here, Chapman it is review. obvious that TRANSWESTERN PROPERTY
was motivated other factors in pursuing COMPANY, Appellee. appeal. thinking amount No of wishful Chapman could have led to a reasonable No. 14-97-00916-CV. belief that this court would overrule the Texas, Appeals judgment Court based on issues (14th Dist.). appeal, especially given he raised on Houston inadequate briefing argu- and meritless July ments. is no room at court- There litigation. par- house for frivolous When merit,
ty pursues appeal an that has it
places unnecessary burden on both
appellee and the courts. important- More
ly, unfairly deprives litigants those who
pursue legitimate appeals judi- of valuable
cial resources. impose appellate
only clearly where the record shows
appellant had no expectation reasonable
reversal, pursue and that he did not Finch,
appeal in good faith. Finch v. [1st (interpreting former Texas Rules of Appellate Proce
dure). It is not unreasonable to infer that
Chapman pursued this faith appeal in bad
and for improper purposes, including delay
and harassment. The deficien numerous brief, in Chapman’s
cies coupled with his challenge
failure to request Hootman’s
sanctions, inescapable lead conclu appeal
sion that his find frivolous. We Chapman’s filing appeal of this war
rants the under damages assessment Accordingly,
Rule 45. we sustain Hoot- cross-point
man’s Chapman
pay $5000, a damages Hootman sum
representing attorney’s the reasonable expenses
fees and in related Hootman responding appeal.
curred in to this judgment of the trial is af-
firmed. *2 Houston, ap-
Garry Washington, L. pellants. addition, Magee, Timothy Ray
Michael High- W. uance. Transwestern had not tower, Houston, appellees. been served with the continuance motion. nor pres- Neither Jimenez his counsel was ANDERSON, Panel consists of Justices 2May proceeding. ent at the *3 EDELMAN and SEARS.* reporter’s May There is no record of the However, proceedings. call docket MAJORITY OPINION a Transwestern filed motion for sanctions day describing on that same the at ANDERSON, events S. JOHN Justice. May 2 hearing, the and that motion (Jimenez) George brought Jimenez by verified affidavit. Transwestern no- personal injury against action Transwest- misrepresentations ticed certain in Jime- (Transwestern). Property ern Company continuance, nez’s motion for which Tran- trial, On the Jimenez announced time, reading swestern was the for first ready that he was not proceed brought and these matters were to the and trial court dismissed ease court’s attention.1 call During docket prosecution want of and imposed sanctions. proceedings, placed trial court a call to appeals that order. In four office, Jimenez’s spoke, using counsel’s and points error, argues the trial a speaker phone so that Transwestern’s (1) court abused its discretion in dismiss- Tay- participate, counsel could with Luro (2) ing relying parte on ex com- lor, paralegal office. Before sanctions, munications to sanc- call, end of the docket the trial court vacat- appellant’s assistant, tioning paralegal and continuance, again ed the and set the case (4) sanctioning appellant’s attorney. We on 7.2May trial part affirm in reverse and render part. May 7th trial On court called Jime suit against
nez’s Transwestern to trial. appeared Another attorney on behalf of I. Jimenez’s counsel who was ill. That sub Background attorney brought stitute to the original Jimenez filed his petition response nam- to the motion for sanctions ing Transwestern as the defendant on requested Jan- which counsel Jimenez’s uary 1996. His first original amended deny the trial court set sanctions and petition was filed October 1996. vacating Jime- aside the order continuance. against nez’s suit response, Transwestern was set for This which is in the nature May 7, 25, 1997, continuance, trial on April 1997. On a motion for supported Jimenez’s filed a by counsel motion for contin- affidavit Jimenez’s counsel’s settings uance based on conflicts with trial Rule 251. physician required by as in other counties. The court appar- trial Tex.R. Civ. 251. Transwestern’s ently reset the case to August 1997. ready, plaintiffs counsel announced May call, At a 2 docket ready Transwestern counsel announced not because learned the continuance had been Jimenez’s was ill. Transwestern granted, though even plain- orally requested had notified the court to dismiss tiffs opposition counsel to the contin- case for want of and asked * sitting by Senior Justice Ross A. 2. Sears as- The trial court's docket sheet includes the following entry proceedings for the that oc signment. May curred on 2: to trial Wed. "[C]alled 189th; morning 9 ... AM Courtroom sought Transwestern’s motion for sanctions appearance; DWOP for late entertain mo only attorney’s misrepre- fees for the asserted Nothing tions for sanctions first.” in the rec sentations contained in Jimenez’s motion for suggests dis ord court’s intention to continuance. plaintiff’s case miss was communicated either Jiminez or his counsel. prose- to dismiss for want of grant impose
the court to its motion and court’s intent reversal). Here, monetary requires counsel cution filed a motion to reinstate and had hear- paralegal. requests Both were ing on the merits of that motion. In Vil- granted reflected court’s order larreal, however, appeal- Martin Villarreal clearly signed May 7. Because dismissal for want of ed distinguishes between dismissal filing without rein- by putting the sanctions those actions id., in the trial court. state it cannot be con separate paragraphs, 634-35, n. S.W.2d 628 at 2. Because we part that the is a cluded hearing on believe Jimenez’s his motion to Indeed, sanctions. the title of dis- significantly distinguishes the Dismissing positive order is “Order Case *4 Villarreal, judice sub from and con- case for Want of Prosecution and Order Im comitantly analysis, due process appli- Attorneys posing Sanctions and Fees.” of cation Villarreal here would obfuscate May 7th Appellant appeals the order. perceive bright precedent what we line litigant’s of a regarding satisfaction due II. process applicable to a of rights Analysis prosecution. a case want of For of A. Dismissal Want Prosecution requires process adequate Due error, an order is entered given notice before In his con- first of Jiminez dismissing prosecution. a suit for want of it tends the trial court erred when dis- Assistance See Hubert v. Illinois State plaintiffs prosecu- for want of missed suit Comm’n, 160, (Tex.App.— 867 S.W.2d 163 ready plaintiff tion when not announced th writ). 1993, Be [14 Houston no Dist.] for trial was ill and because his give deprives a cause failure to such notice to trial. Fur- go unable forward with the by to be heard party right of ther, argues Jiminez he was denied due court, such notice is a omission of process when his of under law cause process of under the Four denial due prosecu- action was dismissed for want of Id. teenth Amendment. he did notice tion because not receive his case was set dismissal. Miller, In v. the Texas County Harris held that either notice of Supreme Court 1. Due Process trial to dismiss notice court’s intent is of the order of dismissal suffi The record in the instant case re actual (Tex.1979) (em 808, 576 810 veals that on the substituted cient. S.W.2d added); phasis see Lowe v. U.S. stated that also Shoe appeared counsel 888, (Tex.App.— 891 proceed. Corp., trial 849 S.W.2d ready was not to denied) 1993, writ the suit for failure Houston [14 Dist.] that time dismissed necessary (holding only that there be to prosecute to based on Jimenez’s failure to subsequently the intent dismiss or proceed trial. notice either to dismissal) reinstate, (emphasis original). to and the order filed verified motion us, denied, it is on, apparent appel In hearing trial court the case held 18, July actual notice the order by that motion dated lant received order Inn, Inc., In v. Pizza It not court failed dismissal. Bilnoski disputed trial 55, (Tex.App. 57 any of its provide notice — Houston «i writ), we held that prosecution Dist.] intent to dismiss for want of actual notice of appellant received prior to time the case was dismissed on because ample dismissing her case May 7. Villarreal v. Antonio San reinstate, her due a motion to Sup.Ct. 42 Tex. J. time file Equip., Truck & though process (holding rights were satisfied even 994 628 failure S.W.2d Ac- file a reinstate. the trial she did not adequate notice of provide
129 Wittig, cord South Main Bank al for the sole issue is want whether can demonstrate clear appellant S.W.2d [14th court. (rejecting abuse of discretion Id. argument To determine whether there is an abuse of that dismissal order was invalid for lack of discretion, reviewing court must deter- appellant notice because filed motion to mine whether the trial court acted without promptly following the order and any guiding princi- reference to rules and thus received actual the order in notice of Inc., H.E.B., ples. See Morrow v. time to protect appellant’s process due (Tex.1986). dismissal). right regarding be heard Thus, although appellant provid determining was not a party whether ed with of the diligence notice trial court’s intent to has demonstrated a lack of claim, may case for prosecuting dismiss the want of a trial court con case, prior history sider hearing, the dismissal he was the entire includ nev file, ing the length ertheless afforded his of time the case was process rights due activity because he received extent of whether a actual notice of the setting requested, dismissal order file a was exis time to motion to reinstate, delay. tence of reasonable excuses for hearing held on was *5 Holland, 231, (Tex. King v. 884 237 hearing motion. S.W.2d This held at a was time denied). 1994, App. Corpus Christi writ when the trial court had full control of the — single No is dispositive, factor and a belat judgment. Andrews, Macarangal See setting ed trial or stated 632, pro readiness 838 (Tex.App. 633 — Dallas ceed to not 1992, conclusively trial does establish (holding motion verified diligence. See Ozuna v. Bio- Southwest the plenary extends trial court’s (Tex. Lab., Clinical 766 S.W.2d 902 jurisdiction in the same manner as a mo denied). App. Antonio writ tion for new under Tex.R. Civ. — San 329(b)). the supreme As noted in in the instant record case reveals no v.Rotello, State hearing this on the rein activity discovery after of the initiation statement motion is the hearing same with trial, lawsuit. Two weeks before Jimenez proof same burden of that Jimenez filed a continuance based on given should have been before the order of scheduling conflicts with the trial date. signed. dismissal was See 671 S.W.2d dispute There the record over (Tex.1984). hearing hold the on whether Jimenez stated in motion that Jimenez’s reinstatement motion satisfied it was an agreed motion. Jimenez failed the due process rights applicable to the to include motion in appellate this rec- dismissal of his case.3 Therefore, ord. we will assume Jimenez
misrepresented to the court that the mo- Diligent 2. Prosecution tion agreed by op- for continuance was posing counsel. See Simon v. York Crane possess Trial courts inherent and (Tex. Co., & Rigging 739 S.W.2d express power dismiss cases have 1987) (holding that when we are confront- prosecuted not been diligence. with incomplete appeal, ed with an record on we Rotello, at 671 S.W.2d 509. In presume portions are to that the omitted for want of test not rul- record the trial court’s abandonment; diligence. test is due ing). Malone, See City Houston v. 828 S.W.2d When the trial court discovered 1992, writ). motion, reviewing When opposed dismiss- Transwestern vacat- adequacy deciding properly The issue of the notice fore whether the trial court intent court's to invoke inherent concluded Jimenez failed dili- to exercise Villarreal, authority gent prosecution. to dismiss for want 994 S.W.2d appellate must be addressed court he- at 631-32. (Tex. Tanner, 725, 730 continuance, Corp. v. did not Jimenez ed the 1993). an attor- Taylor was not Because motion for continuance file another in the sign any an not document day ney and did of trial. On authority case, not have attorney of rec- trial court did attorney was not an who any and stated that other rule to sanc- appeared for Jimenez under Rule 13 or ord misrepresentations4 ill and could not alleged was him for Jimenez’s tion trial. The trial court as the rec- proceed with the to the court. Inasmuch made for want of dismissed the suit trial court acted that time ord reflects the manner, prosecution. unreasonable arbitrary and court, failing to follow hold that the trial filed a motion subsequently Jimenez of Rule abused its requirements reinstate, a hear- and the trial court held point of sustain Jimenez’s discretion. We hearing, At that Jime- ing on that motion. three. discovery, any proof of provide nez did not diligently that he had any other indication four, why he any reason prosecuted trial court erred sanction complains the the case. If diligently prosecuted had not Spe attorney, Garry Washington. ing his diligent pros- any proof had the trial court cifically, contends ecution, place it was his burden particularity the point out with failed to trial court at the hear- before the evidence were on which sanctions acts or omissions He did ing the motion to reinstate. 13, and thus the required by Rule based as in this burden of failed not. Since Jimenez error. reversible trial court committed not abuse its trial court did proof, the duty on the trial court imposes a Rule 13 dismissing ease. discretion on which acts or omissions specify is overruled. Point of error one *6 Alexander are based. See sanctions (Tex. Alexander, Ex Parte Communications B. 1997, writ de Dist.] App. — Houston two, complains point of error nied). fails However, party if a sanctioned parte relying in on ex the trial court erred imposing of the order object to to the form for a motion communications grounds be request that the sanctions or Because we sustain sanctions. pre therein, party fails specified complain- points and fourth third appellate review. the issue for serve of the trial portion sanctions ing of the id. order, address this need not pro- Here, imposing sanctions the order is of error two overruled. point. Point vides, follows: part, in Sanc- considering [for the Motion After C. Sanctions affidavits and supporting and tions] error, Jimenez In his third counsel’s substi- of Plaintiffs response in sanction the trial court erred contends hearing at a full attorney, and after tute assistant, Luro attorney’s paralegal ing his Motion, taken on the evidence was which Rule 13 Procedure Taylor. Texas Civil Gary Washing- L. finds that the Court impose sanc trial court to authorizes the in violation of Rule pleading ton filed attorney, represented against tions Procedure. The Rules of Civil Texas both, pleading that is who filed party, or Taylor that Luro C. further finds Court (1) in bad brought groundless and either: the court. facts to misrepresented faith; brought for groundless During proceedings purpose of harassment. Tex.R. colloquy following May court on 13; Systems- GTE Communications Civ. been made. to have were asserted sentations appeal does not contain the 4. The record misrepre- which for continuance SEARS, Justice, concurring. occurred between the trial court and the ROSS A. attorney Mr. appearing Washington: for majority I opinion’s concur with the dis Umoja: Honor, Ms. Your is the Court one, two, position error points making a finding of fact Rule 13 is However, major three. I dissent from the actually by hearsay? violated ity opinion reversing against the sanctions making finding Court: The Court of Garry Washington. majority opinion The fact Rule 13 has been violated in finds error based on the failure of the trial
this case. assessing court to set forth the basis for pursuant the sanctions to Rule 13. That
iji Sjí >;< t[i }£ sji % holding prior holding conflicts with this court. court has held that This I have modified im- [the Court: complaining by failing party waives $2,980 posing to include sanctions] object to the form against $1,000 Gary Washington L. Alexander, ordered. See Alexander v. Taylor filing
from Luro C. motions in [14th this case violation Rule Texas denied). majority writ Rules of misrep- Civil Procedure and for preserved by states the error was the sub resenting facts to Court. attorney asking stitute “which facts where misrepresented,” cites Rule 33.1 of the Texas Rules of Civil Procedure. Umoja: Honor, just Ms. Your clarify record, you would indicate which appeal The facts in are this remarkable misrepresented? facts were similar to faced this the facts No, ma'am, Court: I won’t. attorney Alexander. The for Mr. Alexan- der requested also verbal clarification of Jimenez, pursuant We hold that imposition the reasons for the of sanctions. 33.1, Appellate preserved Procedure Rule appeal, As this Mr. Alexander’s appellate review court’s failure attempt made no further have the court specify the acts or omissions on which specify the basis for the sanction order. requirement the sanctions are based. The Further, appeal, as in Mr. this Alexander’s particularity 13 mandatory, *7 objection did not file written and failure of a trial comply court to with seeking particularity a written motion on requirement anis abuse of discretion. the reasons for the sanctions. This court See Tarrant County Chancey, 942 merely held Alexander asking Wort — Fort more, question, without was insufficient 1997, writ). Because point ap- of error was waived on lacks particularity findings peal. preserve Because failed to required by hold the trial review, this complaint for we cannot con- court abused its imposing discretion sider it. Gary Washington sanctions on under Rule 13. We sustain Accordingly, I affirm would the sanc- four. Washington. against Garry tions III.
Conclusion affirm the dismissal of Jimenez’s judgment reverse the trial court’s
imposing judgment render sanctions and Tay-
that no sanctions imposed Luro Gary Washington.
lor and