Smale v. Thurman

• Decision Date: 03 November 2021
• Docket Number: 12-20-00202-CV
• Court: Texas Court of Appeals
• Parties: BRIAN A. SMALE, APPELLANT v. GLEN THURMAN, A/K/A GLEN THURMAN BUILDER, INC., A/K/A ROSE HILL SPRINGS DEVELOPMENT, LLC AND WOOD COUNTY COMMISSIONER'S COURT, APPELLEE

BRIAN A. SMALE, APPELLANT
v.
GLEN THURMAN, A/K/A GLEN THURMAN BUILDER, INC., A/K/A ROSE HILL SPRINGS DEVELOPMENT, LLC AND WOOD COUNTY COMMISSIONER'S COURT, APPELLEE

No. 12-20-00202-CV

Court of Appeals of Texas, Twelfth District, Tyler

November 3, 2021

Appeal from the 402nd District Court of Wood County, Texas (Tr.Ct. No. 2019-483)

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

MEMORANDUM OPINION

Brian Hoyle Justice

Brian A. Smale appeals the summary judgment and award of attorney's fees in favor of Appellee Glen Thurman a/k/a Glen Thurman Builder, Inc. a/k/a Rose Hill Springs Development, LLC (collectively Thurman). Smale raises four issues on appeal. We reverse, vacate, remand in part, and affirm in part.

Background

Wood County, Texas approved a subdivision plat filed by Thurman. Thereafter, Smale sought to acquire information related to drainage on utility easements leading to his adjoining property. Proceeding pro se, Smale filed the instant suit against Thurman and others, in which he alleged that after excavation for water supply pipes began on the utility easements, he noticed "rust colored sediment," which appeared in a fish-stocked pond located on his property. In his petition, Smale alleged that Thurman was liable to him for negligence, interference, and violations of Texas Water Code, Section 11.086 because the Wood County Commissioner's Court, approved, without notice of hearing to adjoining property owners, Thurman's subdivision plat without investigating the potential impact on neighboring properties. As a result, he alleged he was entitled to recover

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damages of $431, 000.00, an amount estimated to be the maximum estimated value of his adjoining property.

Thurman answered, asserting a general denial and affirmative defenses. He further made special exceptions to Smale's petition and alleged that Smale is a vexatious litigant pursuant to Texas Civil Practice and Remedies Code, Section 11.101. Lastly, Thurman brought counterclaims for malicious prosecution and tortious interference with property rights and sought to recover actual and exemplary damages, as well as reasonable and necessary attorney's fees and court costs by way of his counterclaim.

Subsequently, ^[1] Thurman filed two separate no-evidence motions for summary judgment, which the trial court granted. Thereafter, Thurman filed a traditional motion for summary judgment on his counterclaims, to which Smale responded. Following a hearing on the matter, the trial court granted Thurman's motion. In so doing, the trial court ruled that Thurman was entitled to recover attorney's fees "based on the totality of the lawsuit and the circumstances." In its written order granting Thurman's motion for summary judgment, the trial court awarded Thurman attorney's fees in the amount of $43, 018.50 "for the defense of the instant litigation." This appeal followed.

Attorney's Fees

In his first issue, Smale argues that the trial court abused its discretion by awarding Thurman attorney's fees.^[2] In his motion for summary judgment, Thurman sought attorney's fees both as sanctions under Texas Civil Practice and Remedies Code, Sections 9.011 and 9.012 and in conjunction with his counterclaim for malicious prosecution.

Attorney's Fees as Sanctions Under Sections 9.011 and 9.012

We first address whether the trial court abused its discretion in awarding attorney's fees pursuant to Sections 9.011 and 9.012.

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Standard of Review and Governing Law

We review the imposition of sanctions under an abuse of discretion standard.Nath v. Tex. Children's Hosp., 446 S.W.3d 355, 361 (Tex. 2014); Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); see also Altesse Healthcare Solutions, Inc. v. Wilson, 540 S.W.3d 570, 573 (Tex. 2018). A sanctions award will not withstand appellate scrutiny if the trial court acted without reference to guiding rules and principles to such an extent that its ruling was arbitrary or unreasonable.Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004). A sanctions award that fails to comply with due process constitutes an abuse of discretion because a trial court has no discretion in determining what the law is or applying the law to the facts.See TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991); see also Huie v. DeShazo, 922 S.W.2d 920, 927 (Tex. 1996). But we will not hold that a trial court abused its discretion in levying sanctions if some evidence supports its decision.Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 2009). Generally, courts presume pleadings and other papers are filed in good faith.GTE Commc'ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 730 (Tex. 1993). The party seeking sanctions bears the burden of overcoming this presumption of good faith.Id. at 731.

In its order awarding sanctions, the trial court does not identify the statute or rule under which it imposed sanctions, but a judgment imposing sanctions will be upheld "on any applicable theory that finds support in the record."Bradt v. Sebek, 14 S.W.3d 756, 764 (Tex. App.-Houston [1st Dist.] 2000, pet. denied); N.Y. Underwriters Ins. Co. v. State Farm Mut. Auto. Ins. Co., 856 S.W.2d 194, 205 (Tex. App.-Dallas 1993, no writ). To determine whether any applicable theory finds support in the record, we must consider the "theories" under which Thurman sought sanctions, i.e., Texas Civil Practice and Remedies Code, Chapter 9.See Dunavin v. Meador, No. 02-07-00230-CV, 2008 WL 2780782, at *4 (Tex. App.-Fort Worth Jul. 17, 2008 (mem. op.); cf. also Guerra v. L&F Distributors, LLC, 521 S.W.3d 878, 889 (Tex. App.-San Antonio 2017, no pet.) (appellate court review confined to specific rule cited as basis for ordering sanctions when determining whether sanctions are proper); see also Hardaway v. Nixon, 544 S.W.3d 402, 412 (Tex. App.-San Antonio 2017, pet. denied) (when defendant moves for summary judgment, he must state expressly in motion specific grounds upon which relief is sought, and summary judgment only may be granted on those grounds).

Section 9.011 provides as follows:

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The signing of a pleading as required by the Texas Rules of Civil Procedure constitutes a certificate by the signatory that to the signatory's best knowledge, information, and belief, formed after reasonable inquiry, the pleading is not:

(1) groundless and brought in bad faith;

(2) groundless and brought for the purpose of harassment; or

(3) groundless and interposed for any improper purpose, such as to cause unnecessary delay or needless increase in the cost of litigation.

TEX. CIV. PRAC. &REM. CODE ANN. § 9.011 (WEST 2017). THE TRIAL COURT MAY AWARD SANCTIONS IF IT DETERMINES THAT A PLEADING HAS BEEN SIGNED IN VIOLATION OF ANY ONE OF THE STANDARDS PRESCRIBED BY SECTION 9.011.Id. § 9.012(a) (West 2017).Chapter 9 does not apply to any proceeding to which Section 10.004 of Texas Civil Practice and Remedies Code or Texas Rule of Civil Procedure 13 applies.Id. § 9.012(h); Low, 221 S.W.3d at 614.

Availability of Sanctions under Chapter 9

In his motion for summary judgment, after setting forth the three potential bases for sanctions under Section 9.011, Thurman declined to specify whether he contended Smale acted in bad faith or for some other underlying purpose. Instead, he made only the following, cursory argument: "Defendant incorporates and adopts the arguments above as if fully stated herein. Defendant requests the Court impose sanctions and award reasonable expenses, court costs, and attorney's fees incurred in the defense of Plaintiff's frivolously filed Petition." As they may relate to bad faith or another, underlying purpose, the "arguments above" in his motion for summary judgment are contained within his arguments underlying his counterclaim for malicious prosecution. There, he describes Smale's petition and the litany of ensuing pleadings as being redundant, meritless, malicious, ^[3] reckless, and grossly indifferent to the truth. But even given these myriad descriptions, he neither expressly nor implicitly contends that Smale acted with any specified purpose.

In this context, "bad faith" exists when a party fails to make a reasonable inquiry into the facts before filing the pleading.See Elkins v. Stotts-Brown, 103 S.W.3d 664, 669 (Tex. App.-Dallas 2003, no pet.). Improper motive is an essential element of bad faith.Id. Bad faith is not simply bad judgment or negligence but means the conscious doing of a wrong for dishonest, discriminatory, or malicious purpose. Id. "Harass" often is used to describe actions that tend to

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annoy, alarm, and verbally abuse another person.Id. Based on the words Thurman chose to describe Smale's conduct and his failure to specify that Smale acted with any specific purpose, albeit improper, we conclude that Thurman's contention properly is construed to be that Smale made groundless pleadings in bad faith. See id.; see alsoTEX. CIV. PRAC. &REM. CODE ANN. § 9.011(1).

As set forth previously, Chapter 9's application is limited to proceedings in which neither Rule 13 nor Chapter 10 applies.SeeTEX. CIV. PRAC. &REM. CODE ANN. § 9.012(H); see also Low, 221 S.W.3d at 614.Chapter 9 largely has been subsumed by subsequent revisions to the code.Nath, 446 S.W.3d at 362 n.6 (citing Cynthia Nguyen, An Ounce of Prevention is Worth a Pound of Cure?: Frivolous Litigation Diagnosis Under Texas Government Code Chapters 9 and 10, and Texas Rule of Civil Procedure 13, 41 S. TEX. L. REV. 1061, 1083-84 (2000) (THEORIZING "IT WOULD BE DIFFICULT TO CONCEIVE OF A SCENARIO IN WHICH CHAPTER 9 WOULD BE APPLICABLE," AND NOTING THAT "THERE ARE ONLY A HANDFUL OF CASES THAT EVEN CITE CHAPTER 9, AND THESE DATE FROM BEFORE THE 1999 AMENDMENT TO SECTION 9.012")).

Rule 13 provides as follows:

The signatures of attorneys or parties constitute a certificate by them that they have read the pleading, motion, or other paper; that to

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