Connie Brenners v. Timothy Ray Green ( 2020 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-20-00044-CV
CONNIE BRENNERS, Appellant
V.
TIMOTHY RAY GREEN, Appellee
On Appeal from the 202nd District Court
Bowie County, Texas
Trial Court No. 20C0021-202
Before Morriss, C.J., Burgess and Stevens, JJ.
Memorandum Opinion by Justice Stevens
MEMORANDUM OPINION
Connie Brenners appeals the trial court’s decision to impose a $20,971.18 sanction
against her attorney in a lawsuit filed against her brother, Timothy Ray Green. Because we find
no abuse of discretion in the trial court’s decision to impose sanctions, we affirm the sanctions
order.
I. Factual Background
Nell Heifner executed a will that appointed Green as her independent executor and left
three-fourths of her estate to Green and one-fourth to Brenners. In the event Brenners became
incapacitated, her distribution of assets was to be held in trust, and Green was named as the
trustee of that trust.
In a lawsuit filed against Green in the 192nd Judicial District Court of Dallas County
(Dallas Court), Brenners, who claimed she was incapacitated, alleged that Green secured a
greater bequest of Heifner’s estate through undue influence and that Green misappropriated
assets belonging to her estate.1 The suit, which included a prayer for a jury trial so that the jury
could award three-fourths of Heifner’s estate to Brenners, also alleged that there were
ambiguities in Heifner’s will and claimed that Green had committed “a serious First-Degree
Felony” as a result of his “brand of fraud.” Even though these same claims were previously filed
by Brenners against Green in a probate proceeding in the County Court at Law of Bowie County
(CCL) and Brenners’s petition before the Dallas Court characterized her claims as a “Will
Contest,” it also asserted that venue and jurisdiction were proper in Dallas County. Because the
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Brenners and Green’s father predeceased Heifner.
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CCL denied Brenners’s application to probate Heifner’s will, which included the claims she
made in the Dallas Court, and admitted the will to probate as a muniment of title, Green filed a
motion to transfer venue to Bowie County.2 See TEX. EST. CODE ANN. § 257.001 (a will is
admitted to probate as a muniment of title only when “the court: (1) is satisfied that the testator’s
estate does not owe an unpaid debt, other than any debt secured by a lien on real estate; or
(2) finds for another reason that there is no necessity for administration of the estate”).
In her response, Brenners admitted that she filed the same claims raised in the Dallas
Court in the CCL, but complained that the CCL would not hear the claims as a result of adverse
rulings and the decision to probate Heifner’s will as a muniment of title. The Dallas Court
granted Green’s motion to transfer the case to the 202nd Judicial District Court of Bowie
County, Texas (District Court), where Brenners filed another petition raising essentially the same
claims.
Because Brenners (1) was raising the same claims as those raised in the CCL, (2) was
challenging the same will she sought to admit to probate in the CCL, and (3) failed to object to or
appeal the probate of Heifner’s will as a muniment of title, Green filed a plea to the District
Court’s jurisdiction. In support of his motion, Green attached documents showing that Brenners
waited until after the CCL admitted her mother’s will to probate as a muniment of title to file a
motion with the CCL to transfer the case to a district court. Because no issues were pending at
the time, the CCL denied the motion to transfer the case to the district court, and we denied
Brenners’s petition for a writ of mandamus filed in this Court complaining of the failure to
Even though Brenners was not the named executrix of Heifner’s will, Brenners applied to admit the will to probate,
2
while challenging it at the same time.
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transfer the case. In re Brenners, No. 06-19-00049-CV, 2019 WL 2518467, at *1 (Tex. App.—
Texarkana June 19, 2019, orig. proceeding) (mem. op.) (concluding that Brenners “provided
nothing to suggest the trial court abused its discretion in denying her request for a transfer”).
After reviewing Green’s plea to the jurisdiction and supporting documents, the District Court
granted the plea.
Green also moved for sanctions against Brenners’s counsel, Charles J. Paternostro. At a
hearing, Green’s counsel rehashed the prior procedural history of the case. He testified and
included documentary proof showing that Paternostro engaged in harassing conduct by
threatening to send some subpoenas to third parties that were previously quashed by the CCL.3
Green’s counsel also showed that Paternostro falsely misrepresented himself to be the “Attorney
for the Estate of Nell Heifner” to third parties and to the CCL, claimed in Brenners’s petition that
his attorney fees would be paid out of estate funds, and filed an affidavit in the Dallas Court
stating that, when the CCL “refused the transfer” motion filed after Heifner’s will was probated
as a muniment of title, it “basically committed [Paternostro] and [Brenners] to a lifetime in
Purgatory.”
As a result of Brenners’s petition that Paternostro filed in Dallas County, Green’s counsel
testified that he had to assist Green in securing counsel in Dallas to pursue this matter and was
then hired to represent him before the District Court. Green’s counsel set forth his hourly rate
and the hourly rate of his paralegals and presented evidence showing that Green had incurred
Green’s counsel also pointed out several misrepresentations made by Brenners’s counsel in his brief filed with this
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Court in connection with Brenners’s petition for a writ of mandamus.
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$12,101.00 in legal fees as a result of Brenners’s ligation in the District Court and $8,869.00 in
legal fees for litigation in the Dallas Court, for a total of $20,971.00.
The District Court granted Green’s motions for sanctions for improper pleading4 by an
order that found that “good cause for the imposition of sanctions on Charles J. Paternostro
exist[ed] based on Rule 13 of the Texas Rules of Civil Procedure as well as Chapter 10 of the
Texas Civil Practices and Remedies Code.” The order further stated,
Charles J. Paternostro has engaged in a pattern of conduct in the filing of
groundless, bad faith and frivolous pleadings and motions in the above-entitled
cause. Moreover, it is apparent from the evidence and testimony presented that
Mr. Paternostro previously engaged in the same or substantially similar conduct in
legal actions instituted in cause number 42390-CCL in the County Court at Law
of Bowie County, Texas, and cause number DC-19-09469 in the 192nd Judicial
District Court of Dallas County, both of which preceded this legal action. At the
hearing on this motion, Mr. Paternostro was neither able to present competent
evidence or testimony to substantiate or justify his filing of the referenced
pleadings and motions, nor was he able to present a good faith basis for the filing
of same in the above-entitled cause.
Based on the aforementioned conduct, Charles J. Paternostro, Plaintiff’s
counsel in the above-entitled cause, has violated both Rule 13 of the Texas Rules
of Civil Procedure[] and Chapter 10 of the Texas Civil Practice and Remedies
Code; specifically, the filing of groundless, bad faith and frivolous pleadings and
motions in the above-entitled cause, the obvious intent of which was to harass
Defendant. Furthermore, said counsel failed to offer a plausible legal or factual
basis for the pursuit of said pleadings and motions filed before this Court.
In view of the circumstances and the evidence presented at the hearing on
this motion, the most appropriate sanction to be imposed on Charles J. Paternostro
is an award of attorney’s fees and costs payable to the Movant in the amount of
$20,971.18 as the evidence introduced at the sanctions hearing established that
Movant has incurred reasonable and necessary attorney’s fees and costs in said
amount. In considering lesser sanctions, Movant could not receive adequate
redress to offset the fees and expenses incurred as a direct result of
Mr. Paternostro’s bad faith actions.[5]
4
Brenners’s counsel also filed a motion for sanctions against Green’s attorney.
5
In response to the order imposing sanctions, Brenners filed a motion to change venue “to another District Court
outside of Bowie County.”
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Brenners appeals the sanctions order and asks that we impose sanctions against Green’s
attorney.
II. Standard of Review
“We review a trial court’s order on a motion for sanctions under Rule 13 and Section
10.001 for an abuse of discretion.” Orbison v. Ma-Tex Rope Co., 553 S.W.3d 17, 35 (Tex.
App.—Texarkana 2018, pet. denied) (citing Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007);
Mobley v. Mobley, 506 S.W.3d 87, 93 (Tex. App.—Texarkana 2016, no pet.) (“an appellate court
will not hold that a trial court abused its discretion in levying sanctions if some evidence
supports its decision”); R.M. Dudley Const. Co. v. Dawson, 258 S.W.3d 694, 707, 709 (Tex.
App.—Waco 2008, pet. denied)). “We will reverse the trial court’s ruling ‘only if the trial court
acted without reference to any guiding rules or principles, such that its ruling was arbitrary or
unreasonable.’” Id. (quoting Mobley, 506 S.W.3d at 93 (quoting Low, 221 S.W.3d at 614)).
“In considering a motion for sanctions, the trial court is to presume that the pleadings
were filed in good faith.” Id. (citing Low, 221 S.W.3d at 614; see TEX. R. CIV. P. 13). “It is the
burden of the party seeking sanctions to overcome the presumption of good faith.” Id. (citing
Low, 221 S.W.3d at 614 (citing GTE Commc’ns Sys. v. Tanner, 856 S.W.2d 725, 731 (Tex.
1993)).
“To prevail on a motion for sanctions under Rule 13, the movant must establish that the
suit was (1) groundless and (2) brought either in bad faith or for the purpose of harassment.” Id.(citing Mobley, 506 S.W.3d at 94 (citing TEX. R. CIV. P. 13)). ‘“Groundless’ for purposes of this
rule means no basis in law or fact and not warranted by good faith argument for the extension,
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modification, or reversal of existing law.” TEX. R. CIV. P. 13. Such a finding “turns on the legal
merits of a claim.” Mobley v. Mobley, 506 S.W.3d 87, 94 (Tex. App.—Texarkana 2016, no
pet.). “For the purposes of imposing sanctions, ‘harassment means that the pleading was
intended to annoy, alarm, and abuse another person.”’ Akinwamide v. Transp. Ins. Co., 499
S.W.3d 511, 527 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (quoting Parker v. Walton,
233 S.W.3d 535, 540 (Tex. App.—Houston [14th Dist.] 2007, no pet.)).6 “In deciding whether a
pleading was filed in bad faith or for the purpose of harassment, the trial court must measure a
litigant’s conduct at the time the relevant pleading was signed.” Mobley, 506 S.W.3d at 94
(quoting Tex.-Ohio Gas, Inc. v. Mecom, 28 S.W.3d 129, 139 (Tex. App.—Texarkana 2000, no
pet.)).
III. Analysis
Brenners does not argue that the District Court erred in finding that the claims raised
before it and before the Dallas Court were the same ones that were previously raised in the CCL.
Brenners also does not challenge the District Court’s order granting Green’s plea to the
jurisdiction. Instead, she argues that her counsel should not have been sanctioned.
At the hearing on Green’s motion for sanctions, the District Court noted, “There’s no
question that the pleadings that were filed in this court were not necessary,” were frivolous, and
resulted in the case being “drug from Bowie County over to Dallas County” where “[a]dditional
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“Under Section 10.001, the movant must establish ‘(1) that the pleading or motion was brought for an improper
purpose, (2) that there were no grounds for the legal arguments advanced, or (3) that the factual allegations or
denials lacked evidentiary support.’” Orbison, 553 S.W.3d at 35 (quoting Mobley, 506 S.W.3d at 95 (citing TEX.
CIV. PRAC. & REM. CODE ANN. § 10.001)). As explained below, because we find no abuse of discretion in the
District Court’s decision to impose sanctions under Rule 13, we need not conduct a Rule 10.001 analysis.
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trips to Dallas” and “[a]dditional attorneys were involved . . . unnecessarily.” The trial court’s
comments shed light on its finding of groundlessness.
The claims Brenners filed in both the Dallas Court and District Court were the same
challenges to Heifner’s will that were filed in the CCL. Under the Texas Estates Code, only the
CCL had jurisdiction over these claims that were raised before Heifner’s will was admitted to
probate as a muniment of title. See TEX. EST. CODE ANN. § 32.001(a) (“All probate proceedings
must be filed and heard in a court exercising original probate jurisdiction. The court exercising
original probate jurisdiction also has jurisdiction of all matters related to the probate
proceeding . . . . ”). Brenners did not appeal any judgment entered by the CCL. Instead, even
though neither the Dallas Court nor the District Court had jurisdiction over her claims, Brenners
refiled her claims in those courts. Paternostro signed the petitions after falsely representing in
those petitions that his attorney fees could be recovered from Heifner’s estate, despite the CCL’s
finding that there was no need for administration of an estate. As a result, we find no abuse of
discretion in the District Court’s decision that Brenners’s claims had no basis in law or fact.
Likewise, we find no abuse of discretion in the District Court’s finding that Brenners’s
petition was intended to annoy, alarm, and abuse Green. The District Court found that
Paternostro engaged in a pattern of harassing behavior. By the time the petition was in the
District Court, he (1) had filed a baseless motion to transfer the case in the CCL after Heifner’s
will was admitted as a muniment of title; (2) had raised claims previously raised in the CCL with
the Dallas Court, which had no jurisdiction to decide the claims; (3) falsely held himself out as
the attorney for Heifner’s estate; (4) claimed without basis that his attorney fees would be paid
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out of Heifner’s estate; (5) threatened to send subpoenas that were previously quashed by the
CCL; (6) required Green to expend resources fighting claims without legal basis in the Dallas
Court and District Court; (7) sought a jury trial for the baseless claims; and (8) filed a petition for
a writ of mandamus in this Court, which we concluded was “without merit.” Brenners, 2019
WL 2518467, at *1.
Next, Brenners argues that Green presented no evidence of the reasonableness of the
sanctions imposed. We disagree. The amount of sanctions awarded is left to the sound
discretion of the trial court. Low v. Henry, 221 S.W.3d 609, 619 (Tex. 2007) (citing
TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991)). However, “a
sanction must be neither unjust nor excessive.” Nath v. Tex. Children’s Hosp., 446 S.W.3d 355,
363 (Tex. 2014). We look to the “relationship between the conduct evinced and the sanction
imposed and require[] a direct nexus between the offensive conduct, the offender, and the
sanction award.” Id. “A just sanction must be directed against the abusive conduct with an eye
toward remedying the prejudice caused to the innocent party, and the sanction must be visited
upon the true offender.” Id. “A court must attempt to determine whether the offensive conduct
is attributable to counsel only, to the party only, or to both.” Id. Brenners’s petition claimed that
she was incapacitated. As a result, the District Court determined that the sanctionable conduct
included pleadings signed and filed by Paternostro and actions and misrepresentations made by
him. As a result, the sanctions were ordered paid by Paternostro directly and not by Brenners.
We also consider “the proportionality of the punishment relative to the misconduct” to
determine whether sanctions are just and not excessive. Id. “Not only should a punishment (i.e.,
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sanctions) fit the crime (i.e., the triggering offense), the sanction imposed should be no more
severe than necessary to satisfy its legitimate purposes.” Id. “Legitimate purposes may include
securing compliance with the relevant rules of civil procedure, punishing violators, and deterring
other litigants from similar misconduct.” Id. Thus, courts must “consider less stringent
sanctions and weigh whether such lesser sanctions would serve to promote compliance.” Id.Here, the District Court looked to Paternostro’s pattern of behavior, which included filing the
same claims that were raised in the CCL with both the Dallas Court and the District Court, and
the filing of a meritless petition for a writ of mandamus in this Court. In fashioning the
appropriate sanction, the trial court took evidence of the attorney fees Green had accumulated in
the District Court and Dallas Court and this evidence went uncontested at the hearing. Due to
Paternostro’s conduct and evidence of the amount of attorney fees presented at the hearing, we
find no abuse of discretion in the trial court’s finding that $20,971.18 was an appropriate and just
sanction.7
IV. Conclusion
We affirm the trial court’s judgment.
Scott E. Stevens
Justice
Date Submitted: November 23, 2020
Date Decided: December 11, 2020
7
Although not part of our analysis, we note that this is not the first time Paternostro has been sanctioned for filing
frivolous and harassing pleadings. See Estate of Huffhines, No. 02-15-00293-CV, 2016 WL 1714171, at *8 (Tex.
App.—Fort Worth Apr. 28, 2016, pet. denied) (per curiam) (upholding sanction of $32,500.00 in attorney fees
against Paternostro); see also In re Estate of Alexander, 188 S.W.3d 327, 329 (Tex. App.—Waco 2006, no pet.).
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