Dell R. Cullum v. Dalene M. White and Diamond A. Ranch ( 2010 )

i i i i i i
MEMORANDUM OPINION
No. 04-09-00695-CV
Dell CULLUM,
Appellant
v.
Dalene WHITE and Diamond A Ranch,
Appellees
From the 38th Judicial District Court, Real County, Texas
Trial Court No. 2007-2704-DC
Honorable Camile G. DuBose, Judge Presiding
INTERLOCUTORY OPINION ON APPEAL OF ORDERS
SUSTAINING CONTEST TO AFFIDAVIT OF INABILITY TO PAY COSTS
AND DENYING FREE RECORD
Opinion by: Steven C. Hilbig, Justice
Sitting: Catherine Stone, Chief Justice
Steven C. Hilbig, Justice
Marialyn Barnard, Justice
Delivered and Filed: August 25, 2010
ORDER SUSTAINING CONTEST TO AFFIDAVIT OF INABILITY TO PAY COSTS
REVERSED; ORDER DENYING FREE RECORD AND FINDING APPEAL FRIVOLOUS
REVERSED IN PART
Dell Cullum appeals the trial court’s orders sustaining the contest to his affidavit of indigence
and finding his appeal is frivolous. We reverse in part.
04-09-00695-CV
BACKGROUND
The trial court issued a permanent injunction as a sanction against Cullum before a trial on
the merits of White’s claims.1 The case was tried to a jury on White’s defamation claim, and the trial
court signed a final judgment that awarded White actual damages in the amount of $100,000.00, split
equally between mental anguish and injury to reputation. The judgment also awarded White
$100,000.00 in punitive damages. After Cullum filed a notice of appeal and an affidavit of indigence,
the court reporter filed a contest, and a dispute arose over the timeliness of the contest. We deemed
the contest timely and ordered the trial court to conduct an evidentiary hearing to determine whether
Cullum is indigent and unable to pay all or some of the costs of an appeal from the final judgment
and the permanent injunction, and whether the appeal is frivolous.
The trial court conducted a hearing on February 12, 2010, but did not sign the order
sustaining the contest until February 25, 2010. The trial court also signed a separate order ruling that
Cullum failed to prove his appeal was not frivolous. Cullum appeals both orders.
DISCUSSION
CONTEST TO AFFIDAVIT OF INDIGENCE
We ordered the trial court to conduct an evidentiary hearing, not later than February 16, 2010,
“to determine in accordance with Rule 20.1(i) of the Texas Rules of Appellate Procedure, whether
Cullum is indigent and unable to pay all or some of the costs of an appeal of the final judgment,
including the permanent injunction.” Rule 20.1(i)(4) of the Texas Rules of Appellate Procedure
provides:
1
… Appellees will be collectively referred to as “W hite.”
-2-
04-09-00695-CV
Unless—within the period set for the hearing—the trial court signs an order
sustaining the contest, the affidavit’s allegations will be deemed true, and the party
will be allowed to proceed without advance payment of costs.
The trial court held the hearing within the period set for the hearing, February 12, 2010, but did not
sign the order until February 25, 2010. Because the trial court did not sign the order sustaining the
contest within the time set for the hearing, Cullum’s allegations of indigence are deemed true. TEX .
R. APP . P. 20.1(i)(4); see Sabanos v. Rivera, 893 S.W.2d 275, 275 (Tex. App.—Houston [1st Dist.]
1995, no writ).
FRIVOLOUS APPEAL
Section 13.003 of the Texas Civil Practice and Remedies Code provides that a free record
shall be provided only if the trial judge finds the appeal is not frivolous and the statement of facts
and clerk’s transcript is needed to decide the issue presented on appeal. TEX . CIV . PRAC . & REM .
CODE ANN . § 13.003(2)(A), (B) (Vernon 2008). A proceeding is frivolous when it “lacks an arguable
basis in law or in fact.” De La Vega v. Taco Cabana, Inc., 974 S.W.2d 152, 154 (Tex. App.—San
Antonio 1998, no pet.)(en banc)(quoting Neitske v. Williams, 490 U.S. 319, 325 (1989)). A trial
court’s ruling will be reversed only if the trial court abuses its discretion. Id.
Cullum contends he has non-frivolous complaints about both the final judgment and the
permanent injunction. He refers to the arguments he made at the hearing on frivolouness and to those
in his motion for judgment notwithstanding the verdict and his motion and amended motion for new
trial. Cullum argues the permanent injunction was erroneously entered without a trial and that the
injunction violates his First Amendment rights. Additionally, he asserts numerous challenges to the
final judgment, including arguments that there is no evidence or insufficient evidence to support a
finding White suffered an actual injury caused by Cullum or an award of exemplary damages.
-3-
04-09-00695-CV
Permanent Injunction
White filed a motion to enter a permanent injunction, asserting Cullum should be sanctioned
for using delay tactics and violating the temporary injunction. According to White’s attorney, these
tactics included repeated attempts to remove the case to federal court, violations of the docket
control order, late designation of an expert, and filing a no evidence motion for summary judgment.
No evidence was introduced at the permanent injunction hearing, and White’s attorney did not refer
to any rule or statute as the basis for imposing sanctions.
After argument of counsel, the trial court granted a permanent injunction. The permanent
injunction provided in part:
IT IS, THEREFORE, ORDERED, ADJUDGED, AND DECREED that Defendant,
DELL R. CULLUM be, and hereby is, commanded to desist and refrain from:
1. contacting any existing or former clients of Plaintiffs for any purpose;
2. posting any information, on any internet medium, about Plaintiff White,
the Diamond A Ranch, or any operations, affiliations, or employees associated
therewith;
3. communicating with third parties, either orally or in writing via the
internet or any recognized postal delivery method any information regarding Plaintiff
White, the Diamond A Ranch, or any operations, affiliations, or employees
associated therewith;
4. creating or assisting in the creation of any website which mentions Leakey,
Real County, Plaintiff White, Diamond A Ranch, or any operations, affiliations, or
employees associated therewith;
5. publishing, by any means, any material that in any way refers to Plaintiff
White, the Diamond A Ranch (or any operations, affiliation, or employees associated
therewith);
6. publishing, by any means, any information or material that has been
recorded electronically, digitally, or by video, and whether or not created by
Defendant, his agents, or anyone acting on his behalf, that in anyway refers to
-4-
04-09-00695-CV
Plaintiff White, the Diamond A Ranch (or any operations, affiliation, or employees
associated therewith); and
7. posting the website “diamondalcoholicranch.com” on the internet.
Cullum complains it was improper to enter a permanent injunction as a sanction. Texas Rule
of Civil Procedure 13 authorizes imposition of sanctions against an attorney, a represented party, or
both, who file pleadings that are (1) groundless and brought in bad faith or (2) groundless and
brought to harass. TEX . R. CIV . P. 13; City of Houston v. Chambers, 899 S.W.2d 306, 309 (Tex.
App.—Houston [14th Dist.] 1995, no writ). Rule 215 allows a court to impose sanctions for
discovery abuse. TEX . R. CIV . P. 215. Chapter 10 of the Civil Practice and Remedies Code allows
sanctions for filing a pleading or motion “for any improper purpose, including to harass or to cause
unnecessary delay or needless increase in the cost of litigation.” TEX . CIV . PRAC. & REM . CODE
ANN . § 10.001 (Vernon 2008). White did not argue at the hearing that there had been any discovery
abuse; therefore, the sanction must be pursuant to either Rule 13 or Chapter 10.
When determining whether to impose Rule 13 sanctions, the trial court must examine the
facts available to the litigant and the circumstances existing when the litigant filed the pleading. See
Elkins v. Stotts-Brown, 103 S.W.3d 664, 667 (Tex. App.—Dallas 2003, no pet.); Neely v. Comm’n
for Lawyer Discipline, 976 S.W.2d 824, 828 (Tex. App.—Houston [1st Dist.] 1998, no pet.). Rule
13 requires sanctions be based on the acts or omissions of the represented party or counsel and not
merely on the legal merit of the pleading. See Elkins, 103 S.W.3d at, 667; Neely, 976 S.W.2d at 828.
Good cause for the sanction must exist and the particulars must be stated in the sanction order. TEX .
R. CIV . PROC. 13. The trial court must also hold an evidentiary hearing. Id. “Rule 13 requires that
sanctions imposed be ‘appropriate’, which is the equivalent of ‘just’ under Rule 215.” GTE
-5-
04-09-00695-CV
Communic’ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 731 (Tex. 1993). Case-determinate sanctions
may not be imposed unless the violation warrants adjudication on the merits. Id.
Under Chapter 10 of the Texas Civil Practices and Remedies Code, an attorney’s signature
on a pleading certifies that he made “reasonable inquiry” that:
(1) the pleading or motion is not being presented for any improper purpose, including
to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) each claim, defense, or other legal contention in the pleading or motion is
warranted by existing law or by a non-frivolous argument for the extension,
modification, or reversal of existing law or the establishment of new law;
(3) each allegation or other factual contention in the pleading or motion has
evidentiary support or, for a specifically identified allegation or factual contention,
is likely to have evidentiary support after a reasonable opportunity for further
investigation or discovery; and
(4) each denial in the pleading or motion of a factual contention is warranted on the
evidence or, for a specifically identified denial, is reasonably based on a lack of
information or belief.
TEX . CIV . PRAC. & REM . CODE ANN . § 10.001 (Vernon 2002). A trial court may impose sanctions
against a party if the trial court finds that the party has failed to comply with any one of the above
requirements. See id. § 10.002 (Vernon 2002) (“A party may make a motion for sanctions, describing
the specific conduct violating Section 10.001.”). The trial court shall describe in its order imposing
sanctions “the conduct the court has determined violated Section 10 .001 and explain the basis for
the sanction imposed.” See id. § 10.005.
The trial court did not hold an evidentiary hearing before entering the permanent injunction.
The permanent injunction order did not specify under what authority sanctions were being imposed.
See TEX . CIV . PRAC. & REM . CODE ANN . §§ 10.002, 10.004 (Vernon 2002); TEX . R. CIV . P. 13. Nor
did the order include findings to support the basis of the sanction. See TEX . CIV . PRAC. & REM .
-6-
04-09-00695-CV
CODE ANN . § 10.005 (Vernon 2008) (requiring court to describe in sanctions order sanctionable
conduct and basis for sanction); TEX . R. CIV . P. 13 (requiring that sanctions order state particulars
of good cause supporting sanctions).
Cullum also contends the permanent injunction is an impermissible restraint on speech and
violates Cullum’s constitutional right to free speech. “Defamation alone is not a sufficient
justification for restraining an individual’s right to speak freely.” Hajek v. Bill Mowbray Motors,
Inc., 647 S.W.2d 253, 255 (Tex. 1983)(striking down an injunction because the language at issue
“evoked no threat of danger to anyone and, therefore, may not be subject to the prior restraint of a
temporary injunction.”). A prior restraint may be permissible only when essential to avoid an
impending danger. Id.; see also Ex Parte Tucker, 220 S.W. 75, 76 (Tex. 1920)(speech is properly
restrained only when involving an actionable and immediate threat); Pirmantgen v. Feminelli, 745
S.W.2d 576, 579 (Tex. App.—Corpus Christi 1988, no writ) (restriction against disseminating an
allegedly libelous letter was an unconstitutional prior restraint).
We hold Cullum’s complaint that the trial court erred in entering a permanent injunction is
not frivolous.
The Judgment
Cullum raises numerous complaints related to the final judgment, including sufficiency of
the evidence to support White’s claim for damages for defamation. Having reviewed the record from
the trial court’s hearing on frivolousness, we cannot determine whether the trial court abused its
discretion in finding Cullum’s appeal of the judgment is frivolous. The record contains only
conclusory statements of the evidence, from which it is impossible to ascertain whether the trial court
abused its discretion in finding Cullum’s appeal is frivolous. Cullum is entitled to a record of
-7-
04-09-00695-CV
sufficient completeness to enable him to establish the trial court erred in finding his appeal is
frivolous. De La Vega, 974 S.W.2d at 154; see also In re J.J.L., No. 04-10-00061, 2010 WL
2841863, *1 (Tex. App.—San Antonio July 21, 2010, no pet. h.)(in appeal of termination of parental
rights it is appropriate to consider the entire record if reviewing court is unable to determine from
the record of the new trial hearing alone whether the trial court abused its discretion in finding the
appeal frivolous).
CONCLUSION
We hold Cullum is deemed indigent because the trial court did not sign the order sustaining
the contest to Cullum’s affidavit of inability to pay costs within the time prescribed by TEX . R. APP .
P. 20.1(i)(4). We also hold the trial court abused its discretion in finding the appeal of the permanent
injunction is frivolous. Finally, Cullum is entitled to a record of all the evidence from the trial so that
we can determine if the trial court abused its discretion in finding the appeal of the final judgment
is frivolous.2
Steven C. Hilbig, Justice
2
… However, if the court determines the appeal of the judgment is frivolous, the court may tax costs as it deems
appropriate. T EX . R. A PP . P. 43.4; see also Recognition Commc’ns., Inc. v. Am. Auto. Ass’n, Inc. 154 S.W .3d 878, 894
(Tex. App.— Dallas 2005, pet. denied)(“courts of appeals have considerable discretion in taxing costs on appeal.”).
-8-