Leigh Gomer v. Altha/Ann Steinlage, Donald Davis and Ruby Davis

Waco, he saw Hobbs’s location house work truck. He Stephens’s

vehicle and fully with his load- warehouse

entered the However, re- Ray handgun.

ed 9mm Hobbs or Ste- shooting denied

peatedly stated he did repeatedly He also

phens. trigger. pulling remember Ray attempting with charged

The State Hobbs and Ste- intentionally kill both by shooting transaction

phens in same with a firearm “which Stephens

Hobbs and preparation mere more than

amounted to to effect the com- but failed

that tended Ray intended.” the offense

mission of intending to kill Hobbs

never admitted shooting them with a or to Stephens

or Thus, Ray never admitted

firearm. which would then

committing the conduct necessity instruction.

permit err the trial court did not

Accordingly, instruction, and requested denying The trial Ray’s sole issue.

we overrule judgment is affirmed.

court’s GOMER,

Leigh Appellant

v. Ruby Davis, DAVIS,

Donald Altha/Ann

Steinlage, Appellees.

No. 01-11-00829-CV. Texas, Appeals

Court of Dist.). (1st

Houston

June 2013.

Rehearing Overruled Nov. 2013. Hubbard, TX, Kingwood,

Patrick G. for Appellant. Jr., H.

Raymond Attorney Stauffacher Law, Houston, TX, Appellees. KEYES, Panel consists Justices SHARP, and HUDDLE.

OPINION KEYES, EVELYN V. Justice. Leigh Gomer appellees, sued Donald (col- Davis, Davis, Ruby Steinlage and Ann “Davis”), lectively, for conversion of a trial, purebred poodle. a During bench the trial court rendered a directed verdict $5,000 in imposed favor of Davis and attorney Gomer and her In bringing frivolous lawsuit. two (1) issues, Gomer that trial contends in granting court erred a directed verdict presented legally because she sufficient ev- (2) dog idence that she owned the erroneously imposed trial court sanctions. vacate the imposition We of sanctions only. Gomer affirm the re- We judgment. mainder of the trial court’s

Background Gomer had been friends with Jane Ar- tall, mother, Donald since the mid- Davis’s dog 1980’s. Gomer and Artall were both breeders, throughout course occasionally friendship, they their bred dogs. pure- each other’s Artall obtained a poodle shortly April bred after its birth in gave this 2007. Gomer testified that Artall “[bjecause dog August to her she going was afraid she was to die soon and dog.” wanted someone to care for the she dog that had the Gomer testified part- from possession form, and signed Gomer this that she 2008 and through September Artall. way the form after testified that she mailed numerous occasions Gomer him on also “had acknowledged, howev- she returned the AKC. that.” She stated September er, not mail the form to the possession to Artall’s that she did dog “loved the animal and Artall after Artall 2008 because until November AKC him in that, she have agreement that acknowledged it was our died. Gomer also had Gomer, Artall According death, her home.” she never claimed to until Artall’s care took [Gomer] her that “because told dog. that she owned the Davis him.” keep me to dog] she wanted of [the cross-examination, Davis’s counsel On health, Artall, pos- had poor was in who following exchange: and Gomer had in the she was not of the when session Gom- your pleadings, Mrs. [Counsel]: possession had hospital, and Gomer er, you did not ever you indicate hospital. in the Gom- dog while Artall was possession intend to have expect or from late er had until after Mrs. Artall’s 2010, while Ar- through mid-April March death; that accurate? gave but she then hospital, was in the tall of time Except periods for [Gomer]: Artall dog the to Davis when possession of unable to care for whenever she was hospital. the When was released from breeding I was him. him or facility in Artall went to a rehabilitation 2010, Stemlage possession took April Ann Steinlage, Gom- why asked she sued When from dog. picked up dog the Gomer the of dog supposed that the “was responded er dog Stemlage September kept only and until [Artall] to be with [Artall] weeks, three and with her for two or Steinlage and that removed the she died” dog to Artall. The brought dog back per- without dog apartment from Artall’s until she died on remained with Artall mission. that 2010. Gomer estimated November verdict. The Davis moved for a directed September time from during period granted the motion. The court trial court in November

2008 until Artall’s death stated, for the defendant. I “Judgment possession dog Gomer had of the for attorney’s fees for application want an time,” and Artall percent “about 10 case counsel and a frivolous dog for the remain- had case; bringing Ms. Gomer for ing time. when that deal with that is and we’ll died, Davis day The after Artall Donald subsequently Davis moved for made.” her picked up dog apartment. from to Texas Rule of Civil pursuant later, hus- days Several Gomer and her and Practice and Reme- Procedure 13 Civil to him to band went to Davis’s house ask Chapter although he did not dies Code Davis, Ruby Don- give dog, her the identify which subsections of Civil Practice wife, speak let Gomer to ald’s refused to that he and Remedies Code section 10.001 give The refused to Gomer him. Davises Davis re- believed Gomer had violated. ultimately and Gomer sued the dog, $9,125, in the amount of quested sanctions Stemlage for conversion. Davises attorney’s reasonable fees representing response, argued created and costs. The trial court admitted a form (“AKC”), support evidence to presented that she had by the American Kennel Club of her claim and she registration to transfer of own- all elements purporting good-faith negotiations to participаted Artall to Gomer. ership dog from to resorting matter without 2008. Both resolve the This form was dated affidavit, finding in award of sanctions based on that is also attached trial. Gomer The trial court denied Gomer’s unjust.” which she averred: motion for new trial. faith brought good This case was the truth of the my belief of based on pre- the evidence Directed

allegations made and Verdict sented; gave the mainly that Jane Artall issue, In her Gomer contends that first me, then delivered the signed granting erred in a directed the trial court to me. papers and registration her conversion claim because verdict on good [con- this claim all brought I presented legally sufficient evidence science], improperly with no interest a from that she received the as Also, offers to settle burden the Court. Artall and thus had an interest seriously con- were made and the case dog. in the This claim was prior to trial. sidered A. Standard of Review intentions and re- brought ‍​​​​​​‌​‌‌‌‌​‌‌‌‌‌​​​‌​‌​​‌​​‌​​‌​‌‌​​‌‌‌​‌‌​​‌​‍with honest spect for this Court. may A a trial court direct verdict 11, 2011, signed July On plaintiff present when a fails to evidence which stated that judgment, “[t]he final raising right a fact issue essential to its motion for directed FINDS that the Court recovery conclusively or when the evidence taken, verdict is well the suit proves a fact that establishes the movant’s entirely Plaintiff frivolous and without judgment as a matter of law. right merit, and that Defendants’ motion should Ins. Am. v. Fin. Review Prudential Co. of judgment The then stat- be GRANTED.” Inc., Servs., (Tex.2000); ed: Garrett, L.L.C., 574, 245 Cox v. S. S.W.3d is, therefore, ORDERED, AD- It 2007, no (Tex.App.-Houston [1st Dist.] 578 JUDGED, Plain- AND DECREED that A pet.). apрropriate directed verdict is suit, nothing by reason of this tiff take only when reasonable minds can draw one with- that Plaintiffs suit is frivolous and from the v. conclusion evidence. Smith merit, judgment and that be and is out (Tex. Inc., 473, Aqua-Flo, 23 S.W.3d 476 for AL- by here entered Defendants denied). 2000, pet. App.-Houston [1st Dist.] STEINLAGE, DONALD THA/ANN reviewing granting the of a directed jointly DAVIS AND RUBY DAVIS and verdict, we follow the standard of review Plaintiff, LEIGH GOMER and assessing legal sufficiency the of the for counsel, HUBBARD, PATRICK G. Cox, at evidence. 245 S.W.3d 578. We individually, jointly severally, and as light consider the evidence in the most to Tex. Prac. & pursuant Civ. the whom the party against favorable to 13, §Ann. 10.004 and Rule Rem.Code Id.; verdict is directed. see also R.U. v. Procedure, Rules of for De- Texas Civil (Tex.1996) (“In R.V., 1, 8 re 933 S.W.2d fees, attorney

fendants’ reasonable ex- verdict, viewing a directed wе examine the pert witness fees and costs incurred light evidence in the most favorable to the [$5,000], this cause in the amount of person suffering judgment.”). an adverse any if Gomer moved for a new trial and ar- We must determine there is conflict gued, portion judgment ing probative of the of the evidence of value that raises “The Cox, that the Movant is a material fact issue. finding court suit (“If Smith, 578; without merit con- 23 S.W.3d at 476 the entirely frivolous and is Smiths introduced some evidence on each trary contrary to the law and is to the Further, defect, design for the trial weight of the evidence. the of the elements 476 has been transferred from the donor Aqua-Flo’s ship motion granting

court erred verdict.”). Edwards, We can consider to the donee. 38 S.W.3d at 197. for directed verdict should An inter vivos must bе absolute and any why the directed reason if the even reason future reconsideration. Soto granted, open have been not for Cox, Bank, 245 party’s in the motion. not stated v. First Gibraltar FSB San Anto- Willis, nio, 400, (citing Gonzales v. (Tex.App.-San S.W.3d at 578 868 403 S.W.2d 729, (Tex.App.-San 1993, d); Antonio 995 740 Dorman S.W.2d Antonio writ ref see also 1999, Arnold, 225, pet.)). no (Tex.App.- v. 932 S.W.2d 228 writ) 1996, that, (holding as Texarkana no B. Evidence of Gift law, plaintiff pres- matter of did show voluntary is a transfer giftA ent donative intent because donor intended gratuitously and property to another made death); his until his property for to remain Lopez Lopez, v. without consideration. Cortez, 561, v. 660 564 Woodworth S.W.2d 2008, (Tex.App.-Waco 788 (Tex.App.-San Antonio writ refd pet.). no To establish existence of n.r.e.) (“A gift may generally not be made gift, plаintiff must valid inter vivos effect in future a mere to take since (1) make a show that the donor intended to give is unenforceable without promise (2) (3) gift; delivery property; of the consideration.”). property by the donee. acceptance of Here, Broumley, v. 285 S.W.3d Gomer testified that Artall Nipp pet.); ownership dog no Edwards v. transferred to her on (Tex.App.-Waco Pena, 1, 2008, (Tex.App.-Cor August posses she took this time. She pus pet.). plaintiff dog no The sion of the also Christi testified, however, that requisite brought establishes the donative intent she Artall in by, among things, mid-September other “evidence that back to that, years, only donor intended an immediate and uncon over the next two possessed his or her when Artall was in the ditional divestiture of hospital. and an immediate and uncondi Gomer estimated that she had interests vesting approximately tional of such interests in the do- 1, August at 559 ten of the time from Nipp, (emphasis percent nee.” 285 S.W.3d 2008, 1, original); Bishop, in Troxel v. 201 until Artall’s death on November S.W.3d 2006, 290, (Tex.App.-Dallas pet.) agreed 297 no 2010. Gomer with Davis’s counsel (“[T]o that, gift praesenti present except periods be a in the for when Artall could [at time], must, dog at he or the donor the time not care the when Gomer was it, expect the she did breeding dog, makes intend an immediate divestiture not ownership dog out of of the until after Ar- rights possession of the of himself have vesting immediate of Davis’s counsel asked consequent and tall’s death. When donee.”). why Steinlage, such sued had taken rights the Until the dо who absolutely irrevocably possession dog nor has divest of the when Artall was in a title, dominion, brought dog facility ed herself of the and con rehab and who death, respond after subject gift, trol of the of the she has the Davis Artall’s Edwards, dog supposed that the “was to be with power gift. to revoke the 38 ed 197; Troxel, only until she died.” [Artall] S.W.3d at see also 201 S.W.3d [Artall] (“All Although at the trial court admitted a trans 296 dominion and control over owner.”). form, by Artall property ownership signed must be released fer of 1, 2008, ownership August The of the Gomer and dated donee does not have subject gift complete acknowledged until owner- Gomer that she did at-

477 tempt to file this form with the AKC until and we therefore review the court’s sanc after Artall died. Gomer also tions order fоr testified an abuse of discretion. See (Tex. 609, that she Low v. 221 Henry, never made a claim of S.W.3d 614 2007); over the Mattox v. dog Cnty. to Davis until after Artall Grimes Comm’rs Ct., 375, 305 died. S.W.3d 386 (Tex.App.-Hous 2010, denied); ton pet. [14th Dist.] Greene presented Gomer thus no evidence that 291, v. Young, 174 S.W.3d 297 (Tex.App. Artall intended an “immediate and uncon denied). Houston pet. [1st Dist.] We ditional divestiture” of her ownership in may reverse the trial ruling court’s on a terest and an “immediate and only sanctions order if the court acted vesting unconditional of such interests” any without reference to guiding rules and Gomer when Artall first allowed Gomer to principles, such that ruling its was arbi have dog. 285 Nipp, Low, trary or unreasonable. 559; Troxel, at S.W.3d 201 at S.W.3d 297. at 614 (citing v. Cummings, Cire 134 contrary, To the the evidence reflects (Tex.2004)). S.W.3d 838-39 General Artall intеnded to continue to exercise do ly, presume courts parties file plead minion and control over the until her ings in good faith. (citing Id. GTE Troxel, 296; death. 201 S.W.3d at Ed Tanner, Sys. Commc’ns Corp. v. 856 wards, 197; Dorman, 38 S.W.3d at 932 (Tex.1993)). S.W.2d 730 The party S.W.2d at 228. We therefore conclude seeking imposition of sanctions bears that Gomer failed to establish the exis the burden of overcoming this presumption tence of a gift. valid inter vivos Nipp, See good faith. Id. (citing GTE Commc’ns 559; Troxel, at S.W.3d 201 S.W.3d at 731). Sys., 856 S.W.2d at 297; Edwards, 38 S.W.3d at 197. B. Sanctions Under Rule IB We hold that because Gomer presented no evidence that Artall intended to make Rule 13 permits sanctions an absolute and irrevocable against attorneys and represented parties when she first allowed Gomer to have pos- groundless who file a pleading in bаd faith session in the trial court or purpose ‍​​​​​​‌​‌‌‌‌​‌‌‌‌‌​​​‌​‌​​‌​​‌​​‌​‌‌​​‌‌‌​‌‌​​‌​‍for the of harassment. Tex.R. correctly directed a verdict 13; favor of Crv. P. R.M. Dudley Constr. Co. v. Am., Davis. See Prudential Ins. Co. 29 Dawson, (Tex.App. S.W.3d 77; Cox, 578; denied); Greene, Waco pet. Smith, 23 S.W.3d at 476. party S.W.3d at 301. The seeking to im pose pursuant to Rule 13 must

We overrule first Gomer’s issue.

demonstrate first that opposing party’s Sanctions pleadings groundless, are and then the party must demonstrate that the ground issue, In her second Gomer contends less pleadings were either in filed bad faith that the trial court in finding erred that or filed for purpose the of harassment. her claim was frivolous and in awarding Dawson, 707; 258 S.W.3d at see also GTE $5,000 in attorney’s fees as pur- sanctions (“To Sys., Commc’ns at 731 suant to Ride 13 and Civil Practice and impose sanctions under Rule the dis Chapter Remedies Code 10. trict court was also rеquired to find that A. Standard of Review GCSC’s assertions were in made bad faith harassment.”). The imposition of purpose sanctions or for the of A pursuant to both Chapter Rule 13 and 10 pleading “groundless” if it has “no basis court, is within the discretion of the trial in law or fact and not [is] warranted extension, in bad brought that she the case the establish for argument good faith purpose for the of harassment. modification, existing of law.” faith or reversal or Dawson, Therefore, requires 13; generally 258 S.W.3d at Id. Rule 13 P. Tex.R. Civ. evidentiary an trial court hold that the 708. the hearing make a determination about to Rule 13 sanc imposing When credibility person sign- motives and required to state tions, court is the trial circum- the Id. In some ing petition. the justifying cause good particulars the stances, to may be able (“No P. 13 sanctions. See Tex.R. Civ. by taking judicial make a determination may imposed this rule be under sanctions Id. The trial court notice of the case file. cause, particulars the good for except in sanctions imposing abuses its discretion in the sanction or stated which must be in the under Rule 13 if there is no evidence Gilbreath, der.”); 267 S.W.3d Robson v. that the for the court to determine record pet. de (Tex.App.-Austin in bad faith plaintiff brought petition nied). abuses its discretion The trial court Id. the of harassment. purpose or for requirement. with this comply if it fails to 407; Robson, Tex.-Ohio See 267 S.W.3d Here, an the trial court did not hold Mecom, Gas, v. 28 S.W.3d Inc. concerning whether evidentiary hearing pet.). How no (Tex.App.-Texarkana or for the Gomer filed suit in bad faith ever, if, here, whom party against as Instead, after the purpose of harassment. object to imposed are does sanctions granted trial court a directed verdict order, party of the sanctions that the form stated, Davis, appli- favor of it “I want an the absence of a any objection waives attorney’s fees for a frivolous cation for finding. See Rob faith or harassment bad against counsel and Ms. Gom- case Mecom, son, 407; case; bringing er for and we’ll deal (“[B]y failing timely to make a at 136 then with that when that is made.” Davis objection, complaint Texas-Ohio waived its for Gomer and moved of the sanction regarding particularity Chap- to Rule 13 and pursuant her counsel order.”). circumstance, In that we consid any not attach evidence ter 10. Davis did any er the record contains evi whether response, to this motion. In her implied finding an support dence to affidavit, averring that attached her own her claim in bad faith plaintiff brought good faith “based brought she the case purpose of harassment. See or for allega- the truth of the on belief of [her] Robson, 267 S.W.3d at 407. presented; and the evidence tions made mainly gave motive is an essen that Jane Artall Improper [her], regis- delivered the signed of bad faith. See id. Bad and then tial element She just judgment papers [her].” faith than bad or tration is more “brought further this claim negligence; bad faith “means the conscious stated that dishonest, [conscience], with no interest to wrong good of a discrimina аll doing improperly In burden the Court” and tory, purpose.” or malicious Id. decid brought with honest in- plaintiff pleading filed a claim was ing “[t]his whether harassment, respect tentions and for the Court.” purpose bad faith or for the the trial court awarded plaintiffs judgment, measure the the final the trial court must $5,000 and costs to attorney’s to fees conduct and examine the facts available Davis, both Gomer and plead time the relevant assessed plaintiff at the Mecom, to attorney, pursuant her “as sanctions ing signed. was See section] cannot Practice and Remedies Code plaintiffs petition [Civil 139. The alone delay or needless increase necessary found 13.” The trial court and Rule 10.004 frivolous, of litigation; in the cost but it did case was that Gomer’s that she any explicit findings (2) claim, defense, not make legal each or other in bad faith or for brought the suit pleading contention in the or motion purpose of harassment. by existing by is warranted law or a argument nonfrivolous for exten- presume Because courts must sion, modification, or reversal of ex- faith, Gomer’s pleadings good are filed isting law or the establishment of cannot establish that she petition alone law; new her case in bad faith or for the brought (3) other factual con- allegation each or party harassment. Id. As the purpose of pleading tention in the or motion has sanctions, Davis had the bur moving for or, evidentiary a support specifi- for good presumption den to overcome this cаlly allegation identified or factual present faith and evidence that Gomer contention, likely is to have eviden- purpose or for the filed suit in bad faith tiary support op- after a reasonable Low, 614. harassment. See for portunity investigation further or any such evidence to Davis did not attach discovery; arid sanctions, and the trial court his motion for (4) pleading each denial in the or motion evidentiary hearing, not hold an as it did of a factual contention is warranted do, “make determina required was a or, specifically on the evidence for a credibility of tion about the motives and denial, reasonably identified based Mecom, signing petition.” person on a lack of information or belief. court thus had at 139. The trial § Prac. & 10.001 Ann. Tex. Civ. Rem.Code it to determine that no evidence before (Vernon Mattox, 2002); see also in bad faith or for the Gomer filed suit (“Sanctions chapter under S.W.3d at 386 of harassment. See id. Because purpose 10 of the Practice and Remedies Civil requires both that the claims be Rule if evidence Code are authorized estab- the suit be filed in bad groundless and that (1) pleading lishes that a or motion was harassment, and purpose faith or for the (2) brought improper purpose, for an there sup evidence to the record lacks sufficient grounds legal arguments were no for ad- port a determination that Gomer filed (3) vanced, allegation a factual or denial or harass, faith or to we con petition bad evidentiary support.”). lacked The trial that the trial court abused its discre clude may person court sanctions on a impose the extent that it sanctioned Gomer tion to signed pleading who has in violation of attorney pursuant and her to Rule 13. See section 10.001. See Tex. Civ. Prac. & Rem. 136,139. id. at (Vernon 2002). 10.004(a) § Ann. Code Chapter 10 C. Sanctions Under judgment, In the final Practice and Remedies Code sec- Civil $5,000 it for at- imposing stated that was signing that the of a provides tion 10.001 torney’s “pursuant as a sanction fees constitutes a certification pleading Ann. Tex. Prac. & Rem.Code Civ. best signatory signatory’s to the § allows a simply 10.004.” Section 10.004 belief, information, and formed knowledge, person trial court to sanction a who vio- inquiry: after reasonable lates а subsection of section 10.001. Tex. 10.004(a). (1)the § Prac. & Ann. pleading being or motion is Civ. Rem.Code identify The trial court did not the final presented any improper purpose, what subsection of section 10.001 judgment to harass or to cause un- including violated, uncontroverted evidence that Ar- despite had that Gomer it determined tall retained and control over for the explain the basis and it did not despite own the Gomer’s testimo- that Gomer’s than to state sanction other to receive unin- ny expect that she did not and without merit.”1 was “frivolous suit until Ar- terrupted possession 2002) (Vernon (requiring § id. 10.005 See however, 10.004(d), Section tall’s death. impos- “describe an order trial court to provides “may the trial court chapter the con- under this ing a sanction a monetary against repre- award sanctions violated court has determined duct the for a violation of Section party sented for the explain the basis Section 10.001 10.001(2).” Tex. Civ. Prac. & Rem.Code We therefore consid- imposed”). sanction (Vernon 2002). 10.004(d) Here, § the Ann. 10.001. er each of section subsection $5,000 imposed trial court in sanctions under Rule As with sanctions Gomer, represented a party. Un- under section impose 10.001(2) facts, therefore, der these section 10.001(1), must hold an evi- support cannot sanctions award hearing necessary make the dentiary Gomer, although attorney Gomer’s party’s about the or factual determinations may be sanctioned under this section. See attorney’s credibility. motives and Arlington Bishop, Univ. Tex. at v. Dawson, The party 258 S.W.3d at 709. (Tex.App.-Fort Worth prove plead for sanctions must moving denied); pet. Loejfler see also v. mind, and, ing subjective state of party’s Dish, Lytle Indep. Sch. thus, evidentiary hearing, without an (Tex.App.-San pet. 349-50 Antonio whether court lacks evidence determine denied) (holding attorney that because de- a filed in bad faith or for the pleading was legal which claims party cides to file and Here, Id. at 710. purpose harassment. most, claims, provides, at factual basis for as with the sanctions under ‍​​​​​​‌​‌‌‌‌​‌‌‌‌‌​​​‌​‌​​‌​​‌​​‌​‌‌​​‌‌‌​‌‌​​‌​‍Rule we punished “should not be for their party sup conclude that insufficient evidence attorney’s party conduct unless the is im- ports finding that Gomer and her attor apart having from entrusted its plicated 10.001(1). ney violated section legal reprеsentation,” and trial court sanctioning party abused its discretion 10.001(4)refers to Section denials 10). Chapter under pleading made in a of a factual contention inapplicable and is here. See Tex. Civ. Thus, only other subsection of 10.001(4)(Vernon § & Ann. Prac. Rem.Code section 10.001 that the trial court could 2002). 10.001(2) provides Section that a attorney have found that Gomer and that “each signatory pleading 10.001(3). to a certifies respect violated is section With claim, defense, legal other contention in or section, applicable to this standard is by existing ... warranted pleading is that, signatory’s knowledge, “to the best argument law or a nonfrivolous for the information, belief, formed after rea extension, modification, or reversal of ex inquiry, allegation sonable each or other isting law or the establishment of new pleading factual contention in a has evi- 10.001(2). or, § law.” ap dentiary support specifically Id. This section for a iden contention, pears likely to be the basis for sanc allegation most tified or factual tions, given likely evidentiary support contention that Artall to have after a Gomer’s further investi- opportunity made a inter vivos reasonable valid sanctions, Similarly, lating See Tex. Civ. Prac. & 1. in the motion for Davis Section 10.001.” 2002). 10.002(a) (Vernon § specific conduct vio- failed to "descríbete] Rem.Code Ann. Dawson, discovery.” regarding allega- which of Gomer’s factual gation or 711; Low, 221 at 617 evidentiary see also S.W.3d tions and contentions lacked (“Under moving party ... chapter 10 [the support, we conclude that insufficient evi- required specifically show bad not is] supports dence a decision to sanction Gom- intent, just faith or malicious that 10.001(3). [the violating er for section See he made a reasonable pleader] certified Low, (“Generally, 221 S.W.3d at 614 courts allegations all of when he inquiry into presume pleadings that and other papers not and that he certified that all the did good are filed in faith. party seeking The evidentiary in the had allegations petition overcoming sanctions bears the burden of likely evidentiary or were to have support, faith.”). presumption good of not.”). allegations when some did support, Because we conclude that no evidencе the facts and The trial court must examine the trial supports court’s decision to im- party evidence available to the pose sanctions under either Rule 13 or existing party when the circumstances Chapter Civil Practice and Remedies Code Dawson, pleading. filed the 10, we hold that trial court abused its ground- 711. “Sanctions for frivolous or discretion to the extent it ordered pleadings apply pursuit less do not to the $5,000 pay attorney’s Gomer to fees to to be of an action later determined Davis as sanctions. Because Gomer’s groundless pleadings after were filed.” law, by existing claim was warranted Id. 10.001(2), and thus violated section the tri- original petition, alleged In her al court did not abuse its discretion in acquired that she from Artall on $5,000 assessing in sanctions Gom- 1, 2008, and she referred to the attorney. er’s form, transfer AKC which part. We sustain Gomer’s second issue in she attached as an exhibit. She also al- leged passed away that Artall before she Conclusion possession dog, could take of the that Ste- inlage dog upon $5,000 took vacate the We award of attor- death, Steinlage brought Artall’s and that Gomer, ney’s fees as a sanction allega- to Davis. Gomer’s factual individually. We affirm the remainder of petition evidentiary tions in her sup- had judgment, including the award of stated, port. As have the fatal flaw in we $5,000 attorney’s fees as a sanction her conversion claim was that she could against Gomer’s counsel. gift

not establish that Artall’s absolute and irrevocablе and was thus was SHARP, concurring Justice Thus, a valid inter gift. vivos under dissenting. case,

facts of this her claim was not war- SHARP, Justice, dissenting JIM by existing ranted law. See Tex. CIV. concurring. 10.001(2). § Prac. & Rem.Code Ann. How- Leigh Ruby Gomer sued Donald and ever, the fact un- ultimately that she was Ann Steinlage (collectively, “ap- Davis and successful in her claim does not control pellees”), for conversion the purebred pursuant whether she should be sanctioned 10.001(3) poodle Gomer contends she received as a making alle- section factual Artall, from Jane Donald Davis’s gations original and contentions issues, mother. pleading evidentiary sup- that did not have two Gomer contends (1) Dawson, granting at 711. In the trial court erred in port. See any the absence of in favor appеllees statement Davis directed verdict be- 482 agree- “loved the animal and it was our evi- tall legally sufficient presented

cause she (2) in her home. I ment that she have him the dog the she owned dence that $5,000 ownership retain and she would in would erroneously imposed trial court keep him.” attorney her Gomer and Although the suit. a frivolous bringing until Artall’s years, the next two For of sanc- imposition the majority vacates 1, 2010, Gomer would death on November verdict tions, the directed affirms it in hospi- Artall was the keep Gabriel when in majority the join I against Gomer. tal, was home and Artall had him when she award, but would the sanctions vacating she convalescing. Gomer estimated that verdict and remand the directed reverse percent for “about 10 had Gabriel evidence because Gomer’s for a new trial kept and Artall during period, time” dog to her gift intended to that Artall testified remaining him the time. Gomer legally was sufficient. keep Artall to Gabriel that she wanted her, was unable to care with unless Artall

Background breeding him. for him or Gomer was Artall, breeders, dog both Gomer and hospital, final visit to the During Artall’s the mid-1980’s and friends since had been however, to Steinlage Ann took Gabriel dogs. Ar occasionally one another’s bred day after apartment, her and the Artall’s Blow Your Horn tall obtained Ras Come death, picked up Donald Davis (aka Gabriel), purebred Marquise him home with Steinlage from and took shortly after his birth in poodle, miniature give him and refused to him to Gomer. Patricia Redmond. April 2007 from the Davises apparent it became When refusal to relin- gave that Artall Gabriel were steadfast their Gomer testified “[bjecause 1, dog, ultimately ‍​​​​​​‌​‌‌‌‌​‌‌‌‌‌​​​‌​‌​​‌​​‌​​‌​‌‌​​‌‌‌​‌‌​​‌​‍sued the August quish [Ar- to her on Steinlage to die soon for conversion. going afraid she was Davises and was tall] care for Gomer re- why Steinlage, wanted someone to Asked she sued and she Gomer, chose to be According sponded supposed Artall that Gabriel “was [him].” only care of until she [Ga- Gomer “because took with [Artall] [Artall] [Gomer] dog’s origi- Steinlage illegally and that took Ga- testimony The of the died” briel].” breeder/owner, Redmond, too, without apartment per- nal Patricia briel from Artall’s hospital from Artall when Artall went into the confirmed the mission fact, pro- to Gomer. In Redmond further for the last time. why, аs Artall herself

vided the reason trial, trial court During the bench Redmond, poo- it to Gabriel the explained an American Kennel Club admitted Gomer rather than to given dle was (“AKC”) form executed both Artall and Redmond, Gomer did unlike Redmond: 2008, August purporting to Gomer dated dog. not crate the ownership from Artall transfer original Gomer mailed the that she had Gabriel to Gomer. Gomer testified in November 2010. until form to AKC possession her from that, prior to acknowledged that she also Gomer also mid-September 2008 and death, any never claimed to after Artall’s she “had him on numerous occasions own- appellees to Artall’s that she was Gabriel’s that.” She returned Gabriel acknowledged that she Ar- er.1 Gomer further September 2008 because any- never mаde a claim of majority Gomer’s testimo- 1. The misconstrues death; testify prior to Artall’s Gomer testified ny point. one on this Gomer did (Tex.2000); April 29 S.W.3d Cox v. S. “falling Artall had a out” (Tex. Garrett, L.L.C., to rescind attempted Artall never but that 2007, no A App.-Houston pet.). [1st Dist.] gift. appropriate directed verdict is when rea a di- motion for granting appellees’ only sonable minds can draw one conclu verdict, stated, rected Aqua- evidence. v. sion from the Smith I an for the defendant. want “Judgment Flo, Inc., 473, (Tex.App.- 23 S.W.3d 476 frivo- attorney’s fees for a application for denied). 2000, pet. Houston [1st Dist.] against counsel and Ms. lous case reviewing granting of a directed ver case; we’ll bringing this and Gomer for dict, we follow the standard of review for Appel- that is made.” deal with that when suffiсiency the evi assessing legal of subsequently pur- moved for sanctions lees Cox, (citing City dence. 245 S.W.3d at 578 of Procedure 13 suant to Texas Rule Civil (Tex. Wilson, Keller v. 168 S.W.3d 802 of Practice and Remedies Code and Civil 2005)). We examine the evidence in the 10, which subsections of Chapter although light party against most favorable to the Remedies section Civil Practice and Code directed, the verdict whom was and we that Gomer was to have violated 10.001 any determine whether there is evidence were never identified. value to probative of raise a material fact 11, 2011, signed the trial court a July On question presented. issue on the Id. We judgment, final which recited Court “[t]he credit favorable evidence if reasonable ju the motion for directed ver- FINDS that disregard contrary rors could and evidence taken, by suit Plaintiff dict is well that the jurors unless reasonable could not. See merit, entirely frivolous and without and Keller, 168 at City S.W.3d 827. of that Defendants’ motion should be B. Evidence of Gift judgment GRANTED.” The also awarded gift voluntary A is a transfer of property $5,000 in appellees Gom- gratuitously to another made and without counsel, jointly severally. and er and Lopez Lopez, consideration. v. 271 S.W.3d The trial court denied Gomer’s motion for 780, 2008, (Tex.App.-Waco pet.). 788 no appeal new trial and this ensued. To establish the existence of a valid inter (1) gift, plaintiff vivos must show Directed Verdict (2) gift; the donor intended to make a issue, In her first contends (3) delivery of the property; accep and granting a erred directed prоperty by Nipp tance of the the donee. verdict on her conversion claim because (Tex. 552, Broumley, v. 285 558 S.W.3d legally evidence presented sufficient 2009, App.-Waco pet.); no Edwards v. gift that she received Gabriel as a from Pena, 191, 197 (Tex.App.-Cor ownership Artall and thus had an interest pus pet.). plaintiff Christi no The poodle. the miniature establishes the requisite donative intent A. of Review Standard with, among things, other “evidence that may A trial court direct a verdict when a an the donor intended immediate and un plaintiff present raising fails to evidence a conditional divestiture of his or her own right recovery fact issue essential to its of ership interests and an immediate and un conclusively proves or when the evidence vesting cоnditional of such interests in the right fact that establishes the movant’s Nipp, (empha donee.” 285 at 559 S.W.3d judgment original); Bishop, as a matter of law. Prudential Troxel 201 sis v. Servs., Inc., (Tex.App.-Dallas Ins. Am. v. Fin. Review S.W.3d no Co. of ownership that she never made a claim of any appellees. Or, (“[T]o light the evidence in the considering praesenti [at be a

pet.) must, Gomer, time], appellate at the time as an the donor most favorable present it, circumstances, an immediate divesti- makes intend he court must do under these out of rights Cox, ture of the one could reason- vest- consequent and a immediate himself gave ably conclude that Artall Gabriel to donee.”). rights of such in the ing as evidenced Gomer on (intent) ownership form the transfer of absolutely has and irre the donor Until immediate that Gomer took title, domin vocably divested herself him for a month and a kept ion, subject of the gift, and control of the (delivery acceptance). Nipp, half gift. to revoke the Ed power she has the 197; Troxel, wards, (setting requirements at 558 forth see also S.W.3d (“All at 296 dominion and con gifts). 201 S.W.3d for inter vivos One could also rea- property Gomer, over the must be released trol sonably conclude that who had owner.”). does have The donee not Artall twenty- been friends with for over subject gift until ownership of years, keep five wanted Artall to the little ownership has been transferred complete long that she loved with her for as as Edwards, the donor to the donee. 38 from able, agreed so the two women was gift at 197. An inter vivos must be S.W.3d her, keep that Artall would Gabriel with open for future reconsid absolute and except hospital. when she was in the Bank, eration. v. First Gibraltar Soto agreement There is no evidence that this Antonio, 868 S.W.2d 403 FSB San donor, Artall, a that was condition ref'd); (Tex.App.-San Antonio writ placed gift. on the The fact that Gomer Arnold, see also Dorman v. Artall keep allowed to Gabriel for extend- (Tex.App.-Texarkana 228 no ed does not her periods rights diminish as writ) that, law, as matter of (holding pres the owner. intent ent donative not shown because do I Accordingly, would hold that Gomer property nor intended for to remain his introduced some evidence of each of the death); Cortez, until his Woodworth v. necessary elements еstablish exis- (Tex.App.-San S.W.2d Antonio a gift. Nipp, tence of valid inter vivos See n.r.e.) (“A gift may gener writ refd 559; Troxel, at S.W.3d ally not be made to take effect in the 297; Edwards, 38 at 197. I would promise give future since a mere therefore hold that the trial court erred in consideration.”). unenforceable without granting ap- a directed verdict favor of case, The evidence in which consists this pellees light of this evidence. See Redmond, testimony of Gomer and (“If Smith, 23 S.W.3d at 476 the Smiths and the exhibits admitted into evidence at introduced some evidence on each of the trial, interpreted the bench can be in one defect, design elements for ways. of two One could look at the evi- in granting Aqua-Flo’s erred motion for although dence and that Artall conclude verdict.”). directed purportedly gave Gabriel to Gomer on Au- Accordingly, I would sustain Gomer’s 1, 2008, gust by the as evidenced transfer first issue. form, she never intended to make an irrevocable gift absolute and Sanctions contingent that time because the was Gabriel, Although majority’s I with the agree upon keeping possession so him, disposition of the sanctions award in this long as she was able to care for until case, separately my her death. I "write to note concern apparent against over the trial court’s bias Indeed, would, that the court sua

Gomer. litigant provide

sponte, party demand speaks

him with a motion for sanctions judge’s predisposi- to the trial

volumes as (“I an regarding appli-

tion this case want attorney’s fees for a frivolous

cation

case counsel and Ms. Gom- ”). case.... The fact bringing

er for not, appellees’ attorney either would not,

or could even articulate his motion Practice and

which subsections Civil 10.001 he

Remedies Code section be-

lieved Gomer had violated also offers a “tell.”

disturbing

Conclusion suffi- presented legally

Because Gomer evidence that Artall intended to make

cient

an absolute and irrevocable of Gabriel I would

to her reverse

judgment of the trial court as it relates ‍​​​​​​‌​‌‌‌‌​‌‌‌‌‌​​​‌​‌​​‌​​‌​​‌​‌‌​​‌‌‌​‌‌​​‌​‍to for di- granting appellees’ motion

rected verdict and remand for a new trial.

BP AMERICA PRODUCTION

COMPANY, Appellant

v. Sr.,

Carlos M. ZAFFIRINI Dolores Garza,

Angelina De la De La Clarissa

Garza, Benavides, Cristina Lorena Benavides,

Servando Roberto Delia Martinez,

Hilda Benavides Maria

Eugenia Gutierrez, Benavides Las Ti Minerals, Ltd.,

najas and Diana Bena Solis, Appellees.

vides

No. 04-11-00550-CV. Texas, Appeals

Court of

San Antonio.

Aug. 2013.

Case Details

Case Name: Leigh Gomer v. Altha/Ann Steinlage, Donald Davis and Ruby Davis

Court Name: Court of Appeals of Texas

Date Published: Jun 18, 2013

Citation: 419 S.W.3d 470

Docket Number: 01-11-00829-CV

Court Abbreviation: Tex. App.