Elwell v. Mayfield, No. 10-04-00322-CV (TX 8/10/2005)
| Decision Date | 10 August 2005 |
| Docket Number | No. 10-04-00322-CV.,10-04-00322-CV. |
| Parties | LARRY ELWELL AND BRADLEY PARSONS, Appellants, v. ROBERT MAYFIELD, Appellee. |
| Court | Texas Supreme Court |
Appeal from the 18th District Court, Johnson County, Texas, Trial Court No. C200400085.
Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Chief Justice Gray concurs in the judgment only)
Appellants filed suit against a sitting judge after the judge refused to permit Bradley Parsons to appear for Larry Elwell in Elwell's appeal of a Class C misdemeanor conviction. The trial court dismissed the suit as frivolous and ordered Appellants to pay Judge Robert Mayfield's attorney's fees. Appellants contend in six issues that: (1) "their right to the use [of] a tool of law" was denied; (2) their right to the pursuit of happiness was denied; (3) their right to contract was denied; (4) the court erroneously found that their suit was filed in bad faith; (5) their right to petition the government for redress of grievances was denied; and (6) their suit cannot be maintained under 42 U.S.C. § 1983 as alleged by Appellee. We will affirm and grant Mayfield's request for sanctions.
Appellants' First Amended Petition lists six allegations arising from Mayfield's denial of Parsons's request to appear for Elwell pursuant to a duly executed power of attorney: (1) denial of Appellants' right to contract under the state and federal constitutions; (2) denial of Elwell's right to counsel under both constitutions; (3) denial of Elwell's right to due course of law under the Texas Constitution; (4) denial of Appellants' right to liberty under both constitutions; (5) violation of the separation of powers provisions of the Texas Constitution; and (6) making of a false statement "which [Appellants] were forced to rely upon to their detriment."
Appellants' First Amended Petition also identifies four causes of action: (1) violation of Elwell's right to contract and his right to due course of law thereby causing damages of $125,000; (2) violation of Parsons's right to contract thereby causing damages of $125,000; (3) making a false statement (that Parsons could not appear on Elwell's behalf) which Elwell and Parsons "were forced to rely on" thereby causing damages of $2,500,000; and (4) commission of sedition thereby causing damages of $2,500,000.
Mayfield filed a general denial, asserted "judicial, official and/or qualified immunity," and specially excepted to Appellant's First Amended Petition on the basis that the petition failed to state an actionable claim.
The trial court sustained Mayfield's special exceptions and gave Appellants twenty days to replead. The court's order specifically required Appellants to replead the six initial allegations regarding denials of their constitutional rights and other violations and assert "valid cause[s] of action under Texas law." The order required Appellants to specify the false statement which served as the basis for their fraud claim and how they relied to their detriment on that statement. The order also required Appellants to replead their sedition claim "to assert a cause of action for which relief can be granted."
Appellants alleged in their Second Amended Petition (among other allegations) that Mayfield denied their constitutional right to contract because: (1) they are not "person[s]" as that term is defined by article 17A.01(b)(4) of the Code of Criminal Procedure;1 (2) Chapter 81 of the Government Code, which prohibits the unauthorized practice of law,2 does not apply to Appellants because they "are sovereigns." They alleged that Mayfield denied their constitutional right to counsel because the Sixth Amendment does not require that counsel be a licensed practitioner. They alleged that Mayfield denied Elwell's right to due course of law because he did not permit Elwell to be represented by counsel of his own choosing.
Appellants alleged in the Second Amended Petition that Mayfield denied them their right to liberty and the pursuit of happiness because no criminal law prohibits Parsons from representing Elwell. They contended that Mayfield violated the separation of powers provisions of the Texas Constitution by: (1) "craft[ing] a law which prohibited Parsons [from representing] Elwell," (2) submitting this law to himself for approval; and (3) "immediately enforce[ing] the law he had just crafted." They contended that Mayfield committed sedition by: (1) "altering the constitutional form of government of this state"3 by "legislating from the bench" and committing the various constitutional violations alleged; and (2) knowingly participating in the management of Johnson County which engaged or attempted to engage in an attempt to alter the constitutional form of government of this state.4
They alleged that Mayfield committed fraud by prohibiting "Parsons from acting as Elwell," by failing "to disclose that Parsons had a right to do so," and by failing to disclose "that Elwell had a right to Parsons'[s] services [under the power of attorney]."
The only substantive difference between the "Causes of Action" alleged in the First Amended Petition and the Second Amended Petition was that in the latter Appellants listed Mayfield's alleged violation of Elwell's right to contract and the alleged violation of his right to due course of law separately, seeking $125,000 for each.
Mayfield responded to Appellants' amended pleading with a motion to dismiss and a motion for sanctions. Mayfield contended in his motion to dismiss that Appellants' Second Amended Petition did not alter the substance of the allegations against him "despite increased verbiage." He sought a finding that Appellants' suit was frivolous and sought as sanctions an order that Appellants pay his court costs, attorney's fees, and out-of-pocket expenses.
After a hearing, the court granted Mayfield's motions to dismiss and for sanctions. The court dismissed the suit with prejudice and ordered Appellants to pay costs of court and Mayfield's attorney's fees of $6,000.
We review an order sustaining or denying special exceptions for an abuse of discretion. Adams v. First Natl. Bank of Bells/Savoy, 154 S.W.3d 859, 876 (Tex. App.-Dallas 2005, no pet.); Mulvey v. Mobil Producing Tex. & N.M., Inc., 147 S.W.3d 594, 603 (Tex. App.-Corpus Christi 2004, pet. denied). Here however, Appellants challenge the court's dismissal of their suit after they amended their petition, not the court's prior order sustaining Mayfield's special exceptions. In such a case, we "accept as true all the material factual allegations and all factual statements reasonably inferred from the allegations set forth in the pleading." Sherman v. Triton Energy Corp., 124 S.W.3d 272, 281-82 (Tex. App.-Dallas 2003, pet. denied) (citing Sorokolit v. Rhodes, 889 S.W.2d 239, 240 (Tex. 1994)). We review the dismissal for an abuse of discretion. Id. at 282.
Appellants contend in their first issue that the court's dismissal of their suit was erroneous because the court failed to recognize their statutory right to use a power of attorney. This issue (and the whole of Appellants' lawsuit) rests primarily on their assertion that the Durable Power of Attorney Act applies to criminal prosecutions. It does not, however.
Appellants' first issue actually embraces two sub-issues: (1) whether an attorney in fact under a power of attorney may "appear as" the principal; and (2) whether an attorney in fact under a power of attorney may act as counsel for the principal.
Article I, section 10 of the Texas Constitution and article 1.05 of the Code of Criminal Procedure both provide that a criminal defendant has "the right of being heard by himself or counsel, or both." Tex. Const. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 1.05 (Vernon 2005). Section 500(4) of the Durable Power of Attorney Act provides that an attorney in fact under a power of attorney is empowered to, "in connection with an action or litigation, perform any lawful act the principal could perform . . . ." TEX. PROB. CODE ANN. § 500(4) (Vernon 2003).
First, we hold that the provisions of the Durable Power of Attorney Act apply to only civil litigation and not to criminal prosecutions. Cf. TEX. CODE CRIM. PROC. ANN. art. 1.02 (Vernon 2005) (). In addition, the specific provisions of the Code of Criminal Procedure control over the more general provisions of the Durable Power of Attorney Act with respect to criminal procedure. See Tex. Gov't Code Ann. § 311.026(a) (Vernon 2005). Therefore, an attorney in fact under a power of attorney has no authority to "appear as" a defendant in criminal proceedings.
The statutory and constitutional right to counsel in criminal prosecutions is limited to licensed counsel. See Coyle v. State, 775 S.W.2d 843, 844-45 (Tex. App.-Dallas 1989, no pet.) (citing Harkins v. Murphy & Bolanz, 51 Tex. Civ. App. 568, 112 S.W. 136, 138 (1908, writ dism'd)). This is so because a power of attorney designates another as the principal's "attorney in fact" or agent. Tex. Prob. Code Ann. § 482(1) (Vernon 2003).
An "attorney in fact" is "one who is designated to transact business for another; a legal agent." Black's Law Dictionary 138 (Bryan A. Garner ed., 8th ed., West 2004); see also Harkins, 112 S.W. at 138; TEX. PROB. CODE ANN. § 491(7) (Vernon 2003) (). Conversely, an attorney at law is one "who practices law; [a] lawyer." Black's Law Dictionary at 138; see also Harkins, 112 S.W. at 138.
From these authorities we hold that the designation of someone as attorney in fact under a power of attorney does not authorize the designee to act as counsel (i.e., a licensed attorney) for...
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