Wayne M. English v. Parcel Express, Inc. ( 2022 )

Affirmed and Opinion Filed November 7, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00961-CV
WAYNE M. ENGLISH, Appellant
V.
PARCEL EXPRESS, INC., Appellee
On Appeal from the County Court at Law No. 4
Dallas County, Texas
Trial Court Cause No. CC-20-00291-D
MEMORANDUM OPINION
Before Justices Partida-Kipness, Reichek, and Goldstein
Opinion by Justice Partida-Kipness
Appellant Wayne M. English appeals a sanctions order awarding $4,500 in
attorney’s fees to appellee Parcel Express, Inc. Finding no abuse of discretion, we
affirm.
BACKGROUND
On November 30, 2018, English mailed a package from Parcel Express in
Mesquite, Texas. The package contained reply briefs for filing in the Third Circuit
Court of Appeals in Philadelphia, Pennsylvania. English purchased United States
Postal Service (USPS) Priority Mail service for the package. According to English,
he contacted the Third Circuit on December 5, 2018, and discovered the court had
not received the package. English maintains he then checked the tracking
information on-line and found the package “had not moved since he handed it to
Parcel.” He contends a Parcel Express employee told him the next day that the
package had been given to the postal service and denied the package was still at
Parcel Express. On December 7, 2018, English mailed a motion for extension of
time to file the reply briefs and new copies of the reply brief to the Third Circuit
directly from the Mesquite Post Office. The package mailed from Parcel Express
arrived at its destination on December 10, 2018.
On December 14, 2018, English sued Parcel Express in Justice Court. He
alleged Parcel Express “never turned over” the package to the USPS for shipment
and, as a result, the package was not delivered to the Third Circuit. According to
English, Parcel Express’s failure to transfer the package required him to prepare and
ship new copies of his reply brief to the Third Circuit at greater cost to him. He
sought judgment for the additional expenses and punitive damages. He attached the
following to his petition: (1) a copy of the Parcel Express sales receipt showing the
Priority Mail tracking number, (2) a copy of a USPS tracking report purportedly
obtained from a USPS employee regarding the package, (3) an undated copy of an
on-line tracking report for the package, and (4) a screenshot purportedly of English’s
cell phone showing a phone call to an 800 number on December 6.
Parcel Express answered the lawsuit on April 9, 2019. Before trial, counsel
for Parcel Express, John Bowdich, corresponded with English via e-mail about
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English’s allegations. In a September 26, 2019 e-mail, Bowdich told English that
Parcel Express contends the lawsuit had no merit because the package was delivered,
and English did not purchase shipping with a guaranteed delivery date. Bowdich
asked English to dismiss the lawsuit and warned that Parcel Express would seek its
attorney’s fees for defending the suit if English refused to dismiss. Bowdich attached
documents to support Parcel Express’s position. Those documents included a
printout from the company’s Endicia tracking program showing delivery of a
package with the same tracking number as the Priority Mail package to Philadelphia
on December 10, 2018, USPS definitions of Priority Mail ship times, and the Third
Circuit’s on-line docket sheet showing receipt of English’s reply brief on December
10, 2018, with a notation the reply brief had a certificate of service of November 28,
2018. Bowdich and English communicated via e-mail over the course of several
days. English accused Bowdich of misinterpreting the facts and insisted Parcel
Express did not give the package to USPS and the package was not delivered. Parcel
Express asked English twice more to voluntarily dismiss the case and included an
agreed order of dismissal with prejudice for his signature. Parcel Express also
provided English with a link to track the package through the Endicia software used
by Parcel Express.
After English refused to dismiss the case, Parcel Express filed its motion for
sanctions on October 3, 2019. In the motion, Parcel Express argued English should
take nothing by his claims and be sanctioned because he continued to pursue the
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litigation and assert the package was not delivered despite receiving “conclusive
proof” from Parcel Express that the package was delivered to the Third Circuit. In
support of the sanctions motion, Parcel Express submitted the sales receipt for
English’s package, which included its Priority Mail tracking number, a printout from
the company’s Endicia tracking program showing delivery of a package with the
same tracking number as the Priority Mail package to Philadelphia on December 10,
2018, and the Third Circuit’s on-line docket sheet showing receipt of English’s reply
brief on December 10, 2018. The docket sheet noted the reply brief had a certificate
of service of November 28, 2018. A separate docket entry showed receipt of
English’s motion for extension of time to file the reply brief with a certificate of
service date of December 6, 2018. In response to the sanctions motion, English
reiterated the allegations in his petition, attached the same exhibits included with his
petition, and added a copy of the receipt and shipping label for the second package
mailed to the Third Circuit on December 7, 2018.1
The case proceeded to trial on November 5, 2019.2 The Justice Court signed
a final judgment the same day, rendered a take-nothing judgment against English,
granted Parcel Express’s motion for sanctions, and awarded Parcel Express
1
The Justice Court record includes two copies of English’s response to the motion for sanctions. One
copy is signed and file-stamped, the other is unsigned and not file-stamped. Five exhibits are attached to
the signed and file-stamped copy of the response, while fourteen exhibits are attached to the unsigned copy.
It is unclear why an unsigned and non-file-stamped copy was included in the record. Any references to the
response are limited to the signed and file-stamped copy and its five exhibits.
2
The transcript is not part of the appellate record.
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attorney’s fees of $2,500. The judgment included findings that English presented its
petition for an improper purpose, including to harass or increase the cost of litigation,
and the petition contained factual contentions without evidentiary support. English
filed a motion for new trial in which he denied alleging Parcel Express never
delivered the package to the postal service. He maintained, instead, that Parcel
Express held the package until December 8, 2018, and misrepresented to him that
the package was not in the store. To support those allegations, English included a
tracking report purportedly obtained from the IT department of Stamps.com. Parcel
Express filed a response in which it argued English’s new evidence supported Parcel
Express’s position by showing USPS received the package on November 30, 2018,
and USPS delivered the package on December 10, 2018. Parcel Express relied on
the affidavit of Richard Swanner, its owner, to support the arguments in opposition
to the motion for new trial. The Justice Court denied the motion for new trial on
December 16, 2019. English appealed to the County Court at Law on January 3,
2020 (the Appeal).
In the Appeal, the parties were ordered to mediation, and English moved for
return of an appeal bond overpayment. On July 14, 2020, Parcel Express filed an
original counterclaim, a motion for sanctions, and a traditional and no evidence
motion for summary judgment. Parcel Express submitted the following evidence in
support of each of those filings: (1) the sales receipt for USPS Priority Mail of
English’s package dated November 30, 2018, (2) Endicia Tracking information
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showing delivery of the package to its destination on December 10, 2018, (3) the
declaration of Richard Swanner with Endicia’s Full Tracking spreadsheet for
English’s package and Code explanations attached, (4) the Third Circuit’s on-line
docket sheet showing delivery of English’s package on December 10, 2018, and (5)
the USPS Disclaimer for Priority Mail showing Priority Mail does not provide a
guaranteed delivery date. English filed responses to Parcel Express’s filings and
included the same evidence relied on in the Justice Court as support.
Trial was held in the County Court at Law on August 5, 2020. That court
signed a final judgment on August 7, 2020, rendered a take-nothing judgment against
English, and dismissed English’s claims with prejudice. English filed a request for
findings of fact and conclusions of law and a “motion for new trial or to modify,
correct, or to reform judgment.” The court held a hearing on Parcel Express’s motion
for sanctions on September 8, 2020, and granted the motion. The court made several
written findings in the order granting the motion for sanctions:
 English had evidence, or should have known after reasonable
inquiry, that his package was delivered to its destination prior to
trial in the Justice Court;
 Before filing his motion for new trial in the Justice Court and the
Appeal, English (1) had conclusive evidence that his package
was delivered to its destination, and (2) had no evidence that
Parcel Express failed to provide his package to USPS on a timely
basis;
 English misrepresented to Parcel Express that his package was
not delivered to its destination after he knew, or should have
known after reasonable inquiry, that the package was delivered
to its destination;
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 English filed his motion for new trial in the Justice Court, the
Appeal, and all filings in the Appeal when he knew, or after
reasonable inquiry should have known, the filings were
groundless and did not have any factual support;
 English “presented and continued” his motion for new trial in the
Justice Court, the Appeal, and all filings in the Appeal for an
improper purpose, including to harass Parcel Express and
needlessly increase the cost of litigation, in violation of section
10.001(1) of the Texas Civil Practice and Remedies Code; and
 English violated section 10.001(3) of the Texas Civil Practice
and Remedies Code by filing his motion for new trial in the
Justice Court, the Appeal, and all filings in the Appeal when he
knew, or after reasonable inquiry should have known, the filings
contained factual contentions that did not have any competent
evidentiary support.
The court awarded Parcel Express attorney’s fees of $4,500 and found those fees
reasonable and necessary based on the services provided and due to English’s
Chapter 10 violations. The County Court at Law denied English’s amended motion
for new trial on October 14, 2020, and this appeal followed.
ANALYSIS
English brings four issues on appeal. The overarching legal challenge asserted
by English, however, is whether the trial court abused its discretion by awarding
Parcel Express attorney’s fees as sanctions. He asserts the trial court abused its
discretion by awarding sanctions because (1) Parcel Express’s evidence failed to
meet the standards required by Chapter 10 of the Texas Civil Practice and Remedies
Code, (2) English’s complaint was not filed for an improper purpose, and (3)
English’s complaint had evidentiary support.
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We review a sanctions order for an abuse of discretion. 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); Aubrey v. Aubrey, 523 S.W.3d 299, 315 (Tex. App.—Dallas 2017, no pet.).
An assessment of sanctions will only be reversed if the trial court acted without
reference to any guiding rules and principles, such that its ruling was arbitrary or
unreasonable. Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 2009). To
determine if the sanctions were appropriate or just, we must ensure that there is a
direct nexus between the improper conduct and the sanction imposed. Shultz v.
Shultz, No. 05-20-00819-CV, 2022 WL 336564, at *6 (Tex. App.—Dallas Feb. 4,
2022, pet. filed) (mem. op.) (citing Spohn Hosp. v. Mayer, 104 S.W.3d 878, 882
(Tex. 2003), and Owen v. Jim Allee Imports, Inc., 380 S.W.3d 276, 282 (Tex. App.—
Dallas 2012, no pet.)). When reviewing an order for sanctions, we examine the entire
record to determine whether the trial court’s sanctions were proper. Daniels v.
Indem. Ins. Co. of N. Am., 345 S.W.3d 736, 741 (Tex. App.—Dallas 2011, no pet.);
Am. Flood Research, Inc., v. Jones, 192 S.W.3d 581, 583 (Tex. 2006). We review
the evidence in the light most favorable to the trial court’s ruling and draw all
reasonable inferences from the evidence to sustain the order. Daniels, 345 S.W.3d
at 741.
Here, the County Court at Law awarded Parcel Express attorney’s fees based
on English’s violations of sections 10.001(1) and 10.001(3) of the Texas Civil
Practice and Remedies Code. TEX. CIV. PRAC. & REM. CODE §§ 10.001(1),
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10.001(3). Those sections provide that the signing of a pleading or motion
constitutes a certificate by the signer that to the best of his knowledge, information,
and belief after reasonable inquiry:
(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; [and]
***
(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;
***
TEX. CIV. PRAC. & REM. CODE §§ 10.001(1),(3). If a court determines a pleading was
signed in violation of Section 10.001, sanctions may be imposed on the signer, a
party represented by the signer, or both. Id. § 10.004(a). Sanctions ordered under
Chapter 10 “must be limited to what is sufficient to deter repetition of the conduct
or comparable conduct by others similarly situated.” Id. § 10.004(b). A sanction may
include any of the following: (1) a directive to the violator to perform, or refrain
from performing, an act; (2) an order to pay a penalty into court; and (3) an order to
pay to the other party the amount of the reasonable expenses incurred by the other
party because of the filing of the pleading or motion, including reasonable attorney’s
fees. Id. § 10.004(c). A court shall describe in an order imposing a sanction under
Chapter 10 the conduct the court has determined violated section 10.001 and explain
the basis for the sanction imposed. Id. § 10.005.
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The basis of English’s claims in the Justice Court was his contention Parcel
Express failed to deliver the package to USPS and, as a result, the package did not
reach its destination. The record shows English refused to dismiss those claims after
receiving proof from Parcel Express that the package was delivered, and that Priority
Mail service did not provide a guaranteed delivery date. As a result, the case
proceeded to trial and resulted in a take-nothing judgment against English and a fees
award to Parcel Express as sanctions.
Instead of ending the dispute in the Justice Court, English filed a motion for
new trial with “new” evidence he insisted established Parcel Express’s failure to
timely deliver the package to USPS. The “new” evidence was a spreadsheet showing
detailed tracking information from Endicia concerning the package. Parcel Express
responded with affidavit testimony from its owner, Richard Swanner. In the
affidavit, Swanner explained the Endicia tracking information provided by English
conclusively proved Parcel Express gave USPS the package on November 30, 2018.
Specifically, Swanner testified the tracking information confirmed USPS “picked up
the package” from Parcel Express and “loaded it on the truck” on November 30,
2018. The printout further confirmed the package was lost in the USPS system for
seven days after leaving Parcel Express. The tracking information also showed
delivery of the package to its destination on December 10, 2018.
Despite Swanner’s testimony, English did not withdraw his motion for new
trial. Instead, he appealed the Justice Court’s final judgment and denial of the motion
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for new trial. In the Appeal, he continued to insist Parcel Express did not transfer the
package to USPS in a timely manner. The Appeal proceeded through trial and again
ended with a take-nothing judgment rendered against English, a motion for new trial
filed by English, and a motion for sanctions filed by Parcel Express. At the hearing
on the motion for sanctions, English continued to insist Parcel Express was
misrepresenting that facts. English maintained Parcel Express did not transfer the
package to USPS on November 30, 2018.
Based on the record before it, the County Court at Law could have determined
English violated sections 10.001(1) and 10.001(3) by continuing to pursue the
lawsuit after Parcel Express provided him conclusive proof the package was
delivered. Moreover, Swanner’s testimony provided definitive proof to defeat
English’s revamped argument that Parcel Express did not timely deliver the package
to USPS. Yet, despite that evidence, English decided to appeal the Justice Court
judgment and pursue his claims through trial and post-trial proceedings in the
County Court at Law. English had multiple opportunities to accept the deficiencies
in his evidence and arguments. Instead, he chose at each juncture to continue the
litigation. Under this record, we conclude the trial court did not abuse its discretion
by finding English’s filings after trial in the Justice Court and his filings in the
Appeal were filed for an improper purpose and included frivolous arguments without
factual support. Further, after reviewing the entire record, including the timing and
substance of the various pleadings and the attorney’s fees testimony at the sanctions
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hearing, we conclude the trial court did not abuse its discretion in awarding Parcel
Express $4,500 in sanctions. See Law Offices of Windle Turley, P.C. v. French, 164
S.W.3d 487, 491–92 (Tex. App.—Dallas 2005, no pet.).
CONCLUSION
The record supports the trial court’s decision to award sanctions to Parcel
Express. Further, the sanctions awarded are appropriate under section 10.004(c).
We, therefore, conclude the trial court did not abuse its discretion in granting Parcel
Express’s motion for sanctions. Accordingly, we overrule English’s appellate issues
and affirm the judgment and the trial court’s sanctions order.
/Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
JUSTICE
200961F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
WAYNE M. ENGLISH, Appellant On Appeal from the County Court at
Law No. 4, Dallas County, Texas
No. 05-20-00961-CV V. Trial Court Cause No. CC-20-00291-
D.
PARCEL EXPRESS, INC., Appellee Opinion delivered by Justice Partida-
Kipness. Justices Reichek and
Goldstein participating.
In accordance with this Court’s opinion of this date, the trial court’s August
7, 2020 Final Judgment and September 8, 2020 Order Granting Defendant’s
Motion for Sanctions are AFFIRMED.
It is ORDERED that appellee PARCEL EXPRESS, INC. recover its costs
of this appeal from appellant WAYNE M. ENGLISH.
Judgment entered this 7th day of November 2022.
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