Lam Nguyen, Van Hong Do, Eric B. Dick, and Dick Law Firm, PLLC v. Aventus Insurance Company ( 2021 )

Dismissed in part, Affirmed in part, and Memorandum Opinion filed
September 30, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00607-CV
LAM NGUYEN, VAN HONG DO, ERIC B. DICK,
AND DICK LAW FIRM, PLLC, Appellants
V.
AVENTUS INSURANCE COMPANY, Appellee
On Appeal from the County Civil Court at Law No. 2
Harris County, Texas
Trial Court Cause No. 1100805
MEMORANDUM OPINION
Appellants Lam Nguyen and Van Hong Do had a dispute with their insurer,
appellee Aventus Insurance Company, over a claim for property damage caused by
Hurricane Harvey. Contemporaneously with invoking an appraisal procedure under
the policy, Nguyen and Do’s attorney—appellant Eric B. Dick—also filed a
lawsuit against Aventus in the Harris County Civil Court at Law, purportedly for
the purpose of “managing” the appraisal. The suit ultimately was dismissed, and
Dick was sanctioned. This appeal ensued.
I. Appellate jurisdiction
As a preliminary matter, we note that the notice of appeal was joined by
Dick Law Firm, PLLC. Because the Dick Law Firm was not named as a party to
the final judgment being appealed, including the sanctions order incorporated
therein, it was given notice that its appeal would be dismissed unless it
demonstrated its standing to pursue an appeal. See Tex. R. App. P. 42.3(a). It
having failed to do so, we now dismiss the attempted appeal by Dick Law Firm,
PLLC for want of jurisdiction. See id.; Tex. Ass’n of Bus. v. Tex. Air Control Bd.,
852 S.W.2d 440, 446 (Tex. 1993) (“The general test for standing in Texas requires
that there ‘(a) shall be a real controversy between the parties, which (b) will be
actually determined by the judicial declaration sought.’”).
II. Sanctions order
Appellants argue that the trial court abused its discretion when it ordered
sanctions pursuant to Rule 13 of the Texas Rules of Civil Procedure and Civil
Practices and Remedies Code section 10.001. They contend that no evidence was
presented to support any award of sanctions, relying on the arguments that an
evidentiary hearing is a prerequisite to awarding sanctions under Rule 13, and
chapter 10 sanctions were unjustified because Nguyen and Do’s causes of action
were “viable.” Sanctions orders are reviewed for abuse of discretion. See Pressley
v. Casar, 567 S.W.3d 327, 333 (Tex. 2019) (chapter 10); Mattly v. Spiegel, Inc., 19
S.W.3d 890, 895 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (Rule 13).
With respect to the requirement for an evidentiary hearing, Rule 13 provides,
in relevant part, that “[i]f a pleading, motion or other paper is signed in violation of
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this rule, the court . . . after notice and hearing, shall impose an appropriate
sanction. . . .” Appellants rely on McCain v. NME Hospitals, Inc., in which the
Dallas court of appeals stated: “Rule 13 requires the trial court to hold an
evidentiary hearing to make the necessary factual determinations about the motives
and credibility of the person signing the alleged groundless petition.” 856 S.W.2d
751, 757 (Tex. App.—Dallas 1993, no writ) (citing Home Owners Funding Corp.
v. Scheppler, 815 S.W.2d 884, 888–89 (Tex. App.—Corpus Christi 1991, no
writ)). But in a directly analogous context, the Supreme Court of Texas later held
that Rule 215.3’s authorization of sanctions “after notice and hearing” does not
indicate a requirement of an oral hearing. See Cire v. Cummings, 134 S.W.3d 835,
844 (Tex. 2004). Appellants do not distinguish Cire, identify any request to the
trial court for an oral hearing or objection in the trial court to sanctions awarded in
the absence of an oral hearing, or present any other specific argument that the trial
court’s evaluation of the record and award of sanctions did not constitute a
“hearing.” See id. at 843-44; Tex. R. App. P. 33.1(a), 38.1(i).
With respect to the argument that chapter 10 sanctions were improper
because Nguyen and Do’s causes of action were “viable,” appellants contend that a
declaratory-judgment action may be used to resolve a dispute about an insurer’s
duty to defend. But the petition did not allege any duty to defend, nor did it
implicate one. Moreover, appellants’ argument makes no effort to address other
grounds for sanctions recited in the April 2, 2018 sanctions order, such as findings
that the lawsuit had no basis in fact, that it was brought in bad faith for the
improper purpose of intimidating and harassing Aventus, and that appellants
hindered the litigation process and failed to make reasonable inquiries to ensure
that the claims and pleadings were not groundless. Without addressing all the
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grounds invoked by the trial court in support of its sanctions order, appellants
cannot demonstrate reversible error. See Tex. R. App. P. 44.1(a).
We conclude that appellants have failed to demonstrate any abuse of
discretion in the trial court’s award of sanctions. See Tex. R. App. P. 33.1(a),
38.1(i), 44.1(a). We overrule appellants’ challenge to the award of sanctions.
III. New-trial order
Appellants contend that the trial court abused its discretion by granting their
motion for new trial, then subsequently dismissing the case and awarding sanctions
without actually conducting a new trial.
On April 2, 2018, the trial court granted a plea to the jurisdiction in favor of
Aventus, at the same time awarding sanctions against Nguyen, Do, and Dick. The
trial court subsequently entered a final judgment shortly before the then-presiding
judge’s term of office concluded at the end of 2018. Nguyen and Do timely filed a
motion for new trial, which had the effect of extending the trial court’s plenary
power to vacate, modify, correct, or reform the judgment. See Tex. R. Civ.
P. 329b(a), (e). The new presiding judge granted the motion for new trial,
reinstated the case on the docket, and vacated both the final judgment entered by
the previous judge, as well as the April 2, 2018 order.
On February 21, 2019, the day after granting the new trial, the court entered
a new final judgment, revising the amounts of sanctions awarded and dismissing
all claims without prejudice. Thus the immediate result of granting the motion for
new trial was the trial court’s reconsideration and revision of the vacated orders.
Aventus then timely filed a motion to modify judgment, raising two issues.
First, it argued the revised version of the final judgment reflected no justification
for dismissing any claims with prejudice, considering that the April 2, 2018 order
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granting Aventus’s plea to the jurisdiction had been vacated. Second, Aventus
argued that another effect of vacating the April 2, 2018 order was to eliminate the
justifications that the previous judge had provided to support the award of
sanctions. Nguyen and Do filed their own motion for new trial, seeking to reinstate
their petition.
Ultimately, the trial court timely vacated the February 21, 2019 judgment
and substituted yet another final judgment dated April 17, 2019. This judgment
expressly reinstated the April 2, 2018 order and incorporated it by reference.
Appellants’ challenge to the failure to actually conduct a new trial identifies
no procedural defect in this chain of events. Their brief suggests it was
“nonsensical” for the final judgment to incorporate the text of the April 2, 2018
order because that order was “already vacated.” But the order that vacated the
April 2, 2018 order was itself interlocutory. The trial court expressly reinstated that
order in the same final judgment that incorporated the order by reference.
In general, a trial court retains plenary power over its interlocutory orders
until a final judgment is entered. Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84
(Tex. 1993). “A trial court’s plenary jurisdiction gives it not only the authority but
the responsibility to review any pre-trial order upon proper motion.” In re Baylor
Med. Ctr. at Garland, 280 S.W.3d 227, 231 (Tex. 2008); Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985). As such, a trial court has the
inherent authority to change, modify, or set aside an interlocutory order at any time
before the expiration of its plenary power. See Fruehauf, 848 S.W.2d at 84; see
also In re Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827,
831 (Tex. 2005).
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Appellants offer no legal argument or authority that the trial court could not
incorporate the entire substance of the April 2, 2018 order into the final judgment.
Accordingly, their challenges related to the new-trial order are overruled.
IV. Waiver of remaining issues
As the threshold issue in its brief, Aventus argued that the appellants waived
most if not all their arguments on appeal by failing to support their brief with
record citations and by failing to provide legal authorities or analysis in support of
their appellate issues. See Tex. R. App. P. 38.1(i) (“The brief must contain a clear
and concise argument for the contentions made, with appropriate citations to
authorities and to the record.”); WorldPeace v. Comm’n for Lawyer Discipline, 183
S.W.3d 451, 460 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (finding
waiver of appellate arguments in the absence of “argument or citations to the
record or to authority”). Apart from a conclusory denial of waiver, appellants
presented no legal argument disputing Aventus’s five pages of legal argument
alleging briefing waiver.
Aventus is correct that the appellants’ brief lacks required record citations.
Recognizing this court’s obligation to construe the rules of appellate procedure
“reasonably, yet liberally,” we have addressed the appellants’ arguments to the
extent possible, but their remaining arguments are not supported by appropriate
citations to authorities and to the record. See Republic Underwriters, Ins. Co. v.
Mex–Tex, Inc., 150 S.W.3d 423, 427 (Tex. 2004) (quoting Verburgt v. Dorner, 959
S.W.2d 615, 616 (Tex. 1997)); Tex. R. App. P. 38.1(i) (requiring clear and concise
argument for contentions made with appropriate citation to record).
The appellants’ brief suggests an issue relating to the denial of a motion to
appoint an umpire and related public policy issues. But the record reveals that the
suit was dismissed without prejudice based upon a plea to the jurisdiction and
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special exceptions. Appellants do not address these grounds for dismissal of the
lawsuit, and they do not identify where in the record the trial court otherwise
addressed the subject of appointing an umpire. These briefing defects are fatal to
this purported appellate issue. See Tex. R. App. P. 33.1(a), 38.1(i), 44.1(a).
Appellants also suggest a deficiency in the evidence presented to support the
trial court’s award of attorneys’ fees as a sanction, under the standard of Rohrmoos
Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469 (Tex. 2019). Appellants’
argument on this point is a single paragraph, it contains no record citations to the
evidence concerning fees presented in the trial court, and it contains no argument
tailored to establish the alleged deficiency under Rohrmoos of any evidence that
was presented. In its response, Aventus identified the evidence it presented to the
trial court to support its attorney’s fees, and it provided a legal analysis of why the
evidence satisfied Rohrmoos. Appellees’ reply brief contained no substantive
response. We hold that appellees’ objection to the legal sufficiency of the evidence
to support an award of attorneys’ fees as a sanction is waived because of briefing
deficiency. See Tex. R. App. P. 38.1(i), 44.1(a).
To the extent appellants intended to raise any other issues that have not been
addressed above, we hold they too were waived by inadequate briefing. See Tex.
R. App. P. 33.1(a), 38.1(i), 44.1(a). No authority obligates us to become advocates
for appellants by performing their research and developing their argument for
them. See Tello v. Bank One, N.A., 218 S.W.3d 109, 116 (Tex. App.—Houston
[14th Dist.] 2007, no pet.) (citing Jordan v. Jefferson Cty., 153 S.W.3d 670, 676
(Tex. App.—Amarillo 2004, pet. denied)).
***
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We affirm the judgment.
/s/ Michael Massengale
Justice
Panel consists of Justices Wise, Bourliot, and Massengale.*
*
Justice Michael Massengale sitting by assignment.
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