Darnell v. Broberg
| Decision Date | 07 December 2018 |
| Docket Number | No. 08-16-00282-CV,08-16-00282-CV |
| Citation | 565 S.W.3d 450 |
| Parties | Eric B. DARNELL, Appellant, v. Carmen BROBERG and Michael J. Zimprich, Appellees. |
| Court | Texas Court of Appeals |
Hon. Michael Zimprich, The Law Offices of Michael J. Zimprich, PLLC, El Paso, TX, for Appellee.
Hon. Joseph L. Hood Jr., Windle, Hood, Norton, Brittain & Jay, LLP, El Paso, TX, for Appellant.
Before McClure, C.J., Rodriguez, and Palafox, JJ.
Appellant Eric B. Darnell, an attorney, appeals from an order of the trial court imposing sanctions on him for making misrepresentations to the court and for disobeying a court order. We affirm.
This case started with the filing of a lawsuit against an auto repair shop for work performed on a BMW automobile. Appellee Carmen Broberg filed suit against Jaime Parra, Jr., an individual doing business as "Lube-Tune," and Rick Parra, his brother who worked as manager of the business, based on repairs performed on her vehicle. Broberg claimed she took her car to Lube-Tune on several occasions from February through September of 2013, yet her car was returned to her in unsatisfactory condition after each repair. Broberg sued for breach of the implied warranty of good and workmanlike services, deceptive trade practices, breach of contract, and negligence. Attorney Michael Zimprich, who is an Appellee on this appeal, represented Broberg and signed all her pleadings.
In responding, Jaime Parra, Jr., filed a general denial and two affirmative claims: (1) a counterclaim against Broberg, claiming that she failed to pay for repairs made to her vehicle; and (2) a third-party petition against Appellee Zimprich for claims of business disparagement.1 The third-party petition alleged identical claims against Broberg and Zimprich asserting that each of them had contacted Jaime Parra, Jr., in the fall of 2013, and demanded repairs be made to Broberg’s vehicle to avoid litigation. Parra alleged repairs were made as agreed; yet, Zimprich filed suit on Broberg’s behalf falsely asserting repairs had not been made. Appellant Darnell represented both Parras and signed their pleadings as attorney of record.
Soon the suit itself turned into a morass of motions for sanctions and contempt. On February 8, 2016, Darnell moved to disqualify Zimprich from serving as Broberg’s attorney asserting he was both a fact witness and a party to the litigation. In response, Broberg and Zimprich filed a motion for contempt and for imposition of sanctions against Jaime Parra, Jr., Rick Parra, and Darnell, claiming these parties filed a frivolous third-party petition containing false statements about events occurring in the fall of 2013. The motion for contempt asserted that Zimprich was not retained by Broberg until April of 2015. Thus, the motion alleged that Darnell filed groundless pleadings, without any legal basis, in bad faith, and for improper purposes. The motion recited Rule 13 and section 10.001 of the Texas Civil Practice and Remedies Code as the basis for the request for sanctions.
On February 9, 2016, the trial court held a hearing presided over by Judge Patrick Garcia on the motion for contempt and sanctions and a separate motion to quash filed by Darnell. At the hearing, Zimprich argued the third-party petition filed against him and his client was frivolous, both factually and legally, and asserted that Darnell had filed his pleading for the improper purpose of attempting to disqualify him from serving as Broberg’s attorney. Zimprich asserted, without objection, that the facts set forth in the third-party petition were false as he personally did not contact Lube-Tune in 2013 to arrange a settlement agreement given he was retained two years later in 2015. Zimprich also argued that even if the facts alleged were true, nonetheless, there would be no legal basis to sue him individually for his representation of Broberg. Zimprich requested the court strike the third-party claim as a frivolous pleading.
In an order signed February 16, 2016, the trial court granted relief and struck Jaime Parra Jr.’s third-party petition as a frivolous pleading that was filed for unethical motives. The trial court also struck Parra’s third-party claim as a sanction for his contempt of court and disobedience of the court’s prior order to be present at a show cause hearing. The court ordered recovery of $451.51 from Darnell as reasonable and necessary expenses incurred in obtaining the court’s order.2 Lastly, the order expressly stated that Jaime Parra Jr. was barred from refiling both the third-party petition and the counter petition.
On March 31, 2016, and April 1, 2016, respectively, Jaime Parra, Jr. filed a motion to reconsider the trial court’s sanction award and a motion to set aside the court’s order. Before these motions were heard, however, the trial court was recused for reasons that are not apparent from the record. Thereafter, Judge Susan Larsen, a visiting judge, was appointed to hear all pending motions and the remainder of the case. On May 3, 2016, Darnell re-filed both an amended counter-petition and an amended third-party petition against Zimprich setting forth virtually identical factual allegations and legal claims as before despite the court’s order barring him from doing so. In response, Zimprich filed a second motion for contempt and sanctions arguing that Darnell acted in contempt and in violation of the trial court’s earlier order. In addition, Zimprich also argued that Darnell made numerous false representations including (1) a claim that Zimprich had not served pleadings, when in fact the record demonstrated that he had, and (2) a claim that Darnell had served Zimprich with pleadings, when in fact the record demonstrated that he had not. With supporting documentation, Zimprich also asserted that Darnell falsely represented that he had failed or refused to allow Darnell to inspect Broberg’s vehicle that was the subject of the suit. Zimprich asked the trial court to impose sanctions of $9,460 in attorney’s fees for services he had been forced to perform to address Darnell’s misconduct. Zimprich attached an exhibit and affidavit attesting to the time spent and work performed in response to Darnell’s allegedly improper conduct.
On July 6, 2016, the trial court held a hearing on Darnell’s motion to disqualify Zimprich from serving as Broberg’s attorney presided over by Judge Larsen. At the hearing, both Parras testified about their first encounter with Zimprich describing it as occurring approximately two-and-a-half years after repairs were completed on Broberg’s car. They described Broberg as coming to their repair shop and demanding they contact her attorney to avoid litigation. The Parras testified they left a voicemail for Zimprich but did not hear back from him. Later, after the lawsuit had been filed, the Parras recalled that Zimprich came to the shop to ask questions about their business operations and to obtain a business card.3 Darnell acknowledged that Zimprich had no further contact with the Parras other than what was described by their testimony. On July 22, 2016, the court denied the motion to disqualify Zimprich from representing Broberg.
Thereafter, on July 28, 2016, the court heard Zimprich’s motion for contempt and for sanctions regarding Darnell’s conduct in re-filing the third-party petition that had been barred by the court earlier. At the hearing, Darnell’s attorney asked for a reconsideration of the court’s initial order finding the third-party petition to be frivolous claiming it was not groundless or filed in bad faith. He argued the newly-filed third-party petition was a new and different pleading although largely containing the same allegations. In response, Zimprich argued that Darnell filed a third-party petition identical to his original, in bad faith, and in violation of the trial court’s original order expressly prohibiting him from doing so. At the hearing, the parties also argued over whether Darnell acted in bad faith by alleging that misrepresentations were made to the trial court. Darnell’s attorney argued he had simply been mistaken in the representations he had made.
On October 5, 2016, the trial court found, among other things, that Darnell, "without explanation or permission," had refiled his third-party petition against Zimprich, and held that the "refiling of pleadings in the face of a court order striking them [was] sanctionable."4 The trial court further found that the re-filed third-party petition was "void and of no legal effect." The court also found that Darnell had in fact made at least two false representations to the trial court claiming that he had not been served with documents, and that Darnell’s statements to the contrary were not credible and were "made in bad faith and for improper purposes." The court found that Darnell had stated on numerous occasions that he had completed service of documents upon opposing counsel when in fact he had not done so. And finally, the court found that Darnell had stated numerous times throughout the proceedings that Zimprich had refused to proffer the subject vehicle for inspection when the record clearly indicated that such a proffer had been made by Zimprich earlier in the litigation. Based on these findings, the court imposed a sanction of $2,000 in attorney’s fees against Darnell, in addition to the amounts previously ordered by the court. The court, however, found that none of the complained-of conduct rose to the level of contempt of court.
Once the case proceeded to a jury trial on the merits, the jury ruled against Broberg and entered a take-nothing judgment.
In one issue on appeal, Darnell asserts that the trial court abused its discretion in awarding monetary sanctions against him. In three sub-parts, Darnell argues the award of sanctions lacked an evidentiary basis, that it covered conduct that fell outside the scope of sanctionable conduct, and no nexus existed between the award of...
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