Condit v. Gonzales, No. 13-04-426-CV (Tex. App. 9/28/2006), 13-04-426-CV.
| Decision Date | 28 September 2006 |
| Docket Number | No. 13-04-426-CV.,13-04-426-CV. |
| Parties | BRADFORD M. CONDIT, Appellant, v. LISA GONZALES, Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the County Court at Law No. of Nueces County, Texas.
Before Chief Justice VALDEZ and Justices RODRIGUEZ and GARZA.
This is an appeal from a sanctions order arising out of a suit for temporary injunction. After the trial court granted summary judgment in favor of appellee Judge Lisa Gonzales1 on the basis of judicial immunity, it granted sanctions against appellant Bradford M. Condit, attorney for Mary "Judy" Dancer Perring (Perring), former wife of the deceased, Gordon N. Dancer (Dancer).2
On appeal, appellant complains that the trial court erred (1) in finding Perring's suit against Judge Gonzales violated section 10.005 of the Texas Civil Practice and Remedies Code and rule 13 of the Texas Rules of Civil Procedure, (2) in failing to adequately state the basis of its conclusions, (3) in allowing undisclosed witnesses to testify regarding attorney's fees, and (4) in awarding attorney's fees that were arbitrary, excessive, unreasonable, without evidentiary support, and unconditional. As reformed, in accordance with this opinion, the judgment is affirmed.
On September 29, 2003, clients of Dancer, who had recently died, and his tax and management consulting business filed an application for temporary injunction against Perring, Dancer's former secretary Darlene McCormack, and the property owner Landlord Resources, Inc.3 They sought to enjoin the defendants from entering Dancer's office and removing any files, documents or electronic files or documents, or from interfering with their right to possession. Judge Gonzales was the presiding judge in this injunction action.
On October 1, 2003, Judge Gonzales signed an agreed order for temporary injunction which stated, in relevant part, as follows:
1.The Plaintiffs and/or their representatives [and] Defendant Mary "Judy" Dancer [Perring] or [her] representative will meet at 3:30 p.m. on October 1, 2003 at the accounting offices of Gordon Dancer . . . for the purpose of removal of Plaintiffs' files, accounting, tax and other business records together with any tax or accounting work in progress.
2.Any disputes between plaintiffs and Defendant Dancer [Perring] as to Plaintiff's right of possession to any particular documents or record, such document or record shall be taken into possession by an attorney of record and delivered to this court for later disposition upon motion and hearing or agreement by the parties.
3.Defendants Judy Dancer [Perring] and Darlene McCormack are enjoined from removing, destroying, copying, altering or concealing any of Plaintiffs' files, accounting, tax and other business records together with any tax or accounting work in progress that are later discovered upon any further inventory of Gordon Dancer's possessions.
An entry on Judge Gonzales's October 3, 2003 civil docket in the injunction action indicates that on that day "Mark DeKock with Burkett's office appeared w[ith] documents and computer towers, [t]elephone conference w[ith] Brad Condit, David Burkett and Mark DeKoch; [d]ocuments & towers held by court subject to hearing."4 At the sanctions hearing, appellant confirmed that he participated in this telephone conference and testified that during the conference he informed Judge Gonzales that the property was from Dancer's office, no interpleader had been filed, and she should not take possession of it. According to appellant, Judge Gonzales said that she was going to take possession of it and that either attorney/plaintiff Burkett or a lawyer from his office should file an interpleader sometime that afternoon. See Tex. R. Civ. P. 39 (). A hearing to determine matters related to the disputed property was scheduled for October 6, 2003.
At approximately 4:00 p.m., on October 3, 2003, Reece Rozelle, who had been Dancer's attorney in his divorce action, filed an interpleader petition in the injunction action. See Union Gas Corp. v. Gisler, 129 S.W.3d 145, 153 (Tex. App.-Corpus Christi 2003, no pet.) ("The purpose of interpleader is to allow an innocent stakeholder facing rival claims to let the courts decide who is entitled to the fund and thus avoid the peril of acting as judge and jury itself."). In his petition, Rozelle asserted that he had reasonable grounds to anticipate rival claims to disputed property that included two computer towers and miscellaneous life insurance documents by persons entitled to be administrators of Dancer's estate, that the rival claimants were persons representing Perring and individuals claiming to represent the estate or community interest in the estate, that it was believed that the property may contain information regarding qualification of the administrator, and that Rozelle had been threatened with civil and criminal action for not turning over the property to one rival.5 The petition indicated that the court had possession of the disputed property that was delivered to the court earlier in the day. See id. at 152 (). Rozelle prayed that the court set his petition for hearing and, after the hearing, sign an order discharging him from the suit, enjoin the rival claimants from taking action against him, and award him costs.6
A hearing was set for October 6, 2003. According to Judge Gonzales, the hearing was scheduled so that she could attempt to determine who had the right to possession of the computer towers and miscellaneous life insurance documents as directed by the October 1st temporary injunction order. However, on October 6th, before the scheduled hearing, appellant filed a motion to disqualify/recuse Judge Gonzales. The motion asserted that, pursuant to rule 18b of the Texas Rules of Civil Procedure, "because of collateral proceedings before a governmental investigatory commission, the nature of which is confidential, the current judge's impartiality might be reasonably questioned," see Tex. R. Civ. P. 18b(2)(a), and that "the judge has a direct adverse legal interest as to a party in this case." See id. at rule 18b(1)(b) & (2)(b), (e), (f)(ii), (f)(iii). In response to the motion to recuse, Judge Gonzales informed all parties at the hearing that she had decided not to recuse herself and, without stating that there was good cause for further action taken, had signed an order referring the case to Judge Darrell Hester, Presiding Judge of the Fifth Administrative Judicial District, to make that determination. See id. at rule 18a(d). Based on this decision, Judge Gonzales informed appellant that she was unable to do anything further with the case and that the matters regarding the property at issue should be considered by another judge. Thereafter, Judge Hester assigned the case to Judge Martin Chiuminatto.
On October 8, 2003, when appellant filed his client's original answer generally denying plaintiffs' claims, he also filed her crossclaim and counterclaim against Rozzell, among others, for invasion of privacy, conversion and conspiracy to commit theft under the Texas Civil Liability Theft statute. See Tex. Civ. Prac. & Rem. Code Ann. § 134 (Vernon 2005). This same pleading named Judge Gonzales as a defendant and asserted that she was Judge Gonzales filed an answer and supplemental answer generally denying the claims, asserting the affirmative defense of immunity, and cross-claiming or counterclaiming for sanctions.
On March 15, 2004, Judge Gonzales moved for summary judgment based on the affirmative defense of judicial immunity asserting that she was "entitled to summary judgment because she was immune, as she was acting in her official capacity at all times with respect to the underlying case at issue." On that same day, Judge Gonzales filed a motion for sanctions, later amended on April 23, 2004. In her motion she alleged that appellant had filed frivolous and groundless pleadings and that she was immune and should not have been named as a party because she was acting in her judicial capacity at all times. She urged sanctions against appellant and Perring under chapters 9 and 10 of the Texas Civil Practice and Remedies Code, see id. §§ 9.001-.014, 10.001-.006 (Vernon 2002) (), and rules 13 and 215-2b of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 13, 215-2b (providing sanctions for groundless pleadings and identifying types of sanction that can be imposed). In support of her sanctions motion, Judge Gonzales incorporated exhibits 1 through 7 from her motion for summary judgment.7
On April 26, 2004, appellant's client responded to Judge Gonzales's motion for summary judgment and filed her own summary judgment motion arguing that her claim against Judge Gonzales was filed in good faith and that there was no evidence that the claims were motivated by a "consciously [sic] doing of a wrong for a dishonest, discriminatory or malicious purpose." See Appleton v. Appleton, 76 S.W.3d 78, 86-87 (Tex....
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