Harpreet S. & Rajinder K. Kang v. Advanta Mortgage Corp.,USA ( 2005 )

Supplemental Opinion issued July 21, 2005   

In The  

Court of Appeals

For The  

First District of Texas

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NO. 01-03-00091-CV

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HARPREET KANG AND RAJINDER K. KANG, Appellants

V.

BARBARA KEEN AND REAL ESTATE CHAMPIONS, Appellees

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On Appeal from the 11th District Court

Harris County, Texas

Trial Court Cause No. 2001-2847

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SUPPLEMENTAL MEMORANDUM OPINION ON MOTION FOR REHEARING

          In their motion for rehearing, the Kangs contend that this Court erroneously analyzed the trial court’s award of attorney’s fees to Champions under § 17.50 of the Deceptive Trade Practices Act, rather that Rules 13 and 214-2(b) of the Rules of Civil Procedure. Specifically, the Kangs contend that Champions abandoned its request for sanctions under the DTPA when it filed its First Amended Counterclaim. We disagree. While Champions’ First Amended Counterclaim specifically references Rules 13 and 214-2(b) of the Rules of Civil Procedure, it also asserts that “Plaintiff’s Original Petition is groundless and brought in bad faith or brought for purposes of harassment . . .” These are all grounds for an award of attorney’s fees under § 17.50(c) of the DTPA. Because the Kangs’ petition contained a claim under the DTPA, Champions specifically requested a finding that the Kangs’ Original Petition was groundless and brought in bad faith, and the trial court’s judgment awards Champions “25,000.00 in satisfaction of all reasonable and necessary attorneys’ fees and expenses in defending [the Kangs’] groundless claims brought in bad faith,” this Court properly analyzed the judgment under § 17.50(c) of the DTPA. As such, we need not also address the propriety of the attorney’s fees award under any other provision.

          The Kangs also contend on rehearing that the trial court could not award attorney’s fees based on the fact that they filed an Amended Petition after the trial court found their Original Petition to be groundless. This contention is based on case law holding that a party cannot be sanctioned for filing a pleading unless there has been a hearing inquiring into the party’s purpose in filing it. See Bisby v. Dow Chem. Co., 931 S.W.2d 18, 21, (Tex. App.—Houston [1st Dist.] 1996, no writ). The Kangs point out that, although there was a hearing on September 6, 2002, after which the trial court determined that their Original Petition was groundless, there was never another hearing after they filed their Amended Petition on September 20, 2002.

          This Court’s analysis of the attorney’s fee issue did not consider the Amended Petition. Instead, we analyzed whether the trial court’s finding that the Original Petition was groundless was correct. The fact that the trial court found the filing of the Amended Petition also to be groundless is irrelevant. The trial court’s judgment states that “[t]he filing of the Amended Petition was done with knowledge of the court’s prior finding that the claims [in the Original Petition] were groundless. Such a filing in the face of the trial court’s ruling as well as prior conduct of Plaintiffs and their counsel are sufficient to show good cause for sanctions and judgment against Plaintiffs and their counsel.” (Emphasis added).

          The record clearly shows that the trial court found the filing of the Original Petition, as well as the Amended Petition, to be groundless. The trial court’s finding that the Original Petition was groundless is sufficient to support an award of attorney’s fees to Champions, as we discussed in our opinion.

          Finally, the Kangs argue that the Court erred by holding that Champions presented legally sufficient evidence to show that the fixtures had been removed from the house before the Kangs ever agreed to purchase the house. Specifically, the Kangs argue that it is equally likely that the fixtures were placed in the house after July 1998 (the date the photographs depicting the house without expensive fixtures were developed), and then removed after the Kangs agreed to purchase the house, as it is that the fixtures were removed before the photographs were taken and never replaced. Because, the Kangs argue, the two competing inferences are equally likely to have occurred, Champions’ evidence is legally insufficient.

          The equal inference rule provides that a fact finder may not reasonably infer an ultimate fact from meager circumstantial evidence “which could give rise to any number of inferences, no more probable than another.” Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex. 1997). Thus, in cases with only slight circumstantial evidence, something else must be found in the record to corroborate the probability of the fact’s existence or non-existence. Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex. 2001) (C.J. Phillips, concurring).

          There is not an equal likelihood that the fixtures were removed for the photographs, replaced in the house when the Kangs agreed to buy the house, and removed again after the sale, as it is that the fixtures were removed from the house and sold before the Kangs agreed to buy the house. There is evidence tending to corroborate Champions’ positions that the fixtures were removed and sold before the Kangs ever agreed to purchase the house. First, we note that the 8,000 square foot house was sold for just $350,000, which supports the inference that the house was been sold in a “stripped down” condition. Second, several of the photographs, which were taken before the Kangs agreed to buy the house, show price tags on the fixtures, supporting the inference that the fixtures were being removed from the house and sold. Because the inferences arising from the photographic evidence are not equally plausible, this Court concluded that Champions had presented legally sufficient evidence in support of its motion for summary judgment.

          We OVERRULE the Kangs’ motion for rehearing, as well as all other pending motions.

                                                                        Sherry Radack

                                                                        Chief Justice

Panel consists of Chief Justice Radack and Justices Keyes and Alcala.