Robert T. O'Donnell v. Julia L. Vargo ( 2015 )

Affirmed in part; Reverse and Render in part; and Opinion Filed August 10, 2015
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00404-CV
ROBERT T. O’DONNELL, Appellant
V.
JULIA L. VARGO, Appellee
On Appeal from the 302nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-86-15027
MEMORANDUM OPINION
Before Justices Lang-Miers, Whitehill, and Schenck
Opinion by Justice Whitehill
Appellee Julia L. Vargo sued appellant Robert T. O’Donnell for divorce in Collin
County. O’Donnell responded that their marriage was void based on the premise that Vargo was
not legally divorced from her first husband. More specifically, O’Donnell argued that Vargo’s
prior 1987 divorce decree was void because the trial court signed that decree a few days after
dismissing the case for want of prosecution and without first reinstating the case.
After two Collin County courts did not give him the relief he sought, O’Donnell filed a
motion in Vargo’s 1986 Dallas County divorce case seeking a declaration that her 1987 divorce
decree was void. The trial court granted summary judgment for Vargo and assessed a sanction
of $7,617.27 against O’Donnell. O’Donnell appeals only the sanction.
In three issues, O’Donnell argues that (1) the sanction order is void because it does not
itself recite the sanctionable misconduct; (2) the court should have imposed the sanctions against
the attorney who signed his petition instead of against O’Donnell; and (3) the evidence is
insufficient to support an award of sanctions. We reverse, concluding that the trial court abused
its discretion because there is no evidence supporting essential elements of Rule 13 and Chapter
10 sanctions.
I. BACKGROUND
In 1986, Vargo filed this suit in Dallas County seeking a divorce from Richard Charles
Turi. On March 2, 1987, the trial court dismissed the suit for want of prosecution. There is no
reinstatement order in the record. Notwithstanding that dismissal and the apparent lack of formal
reinstatement, the trial court on March 9, 1987 signed an agreed divorce decree ending the
Vargo–Turi marriage.
Vargo and O’Donnell married in 1992. In February 2013, Vargo sued O’Donnell for
divorce in Collin County. O’Donnell responded, in part, by filing a petition in the divorce case
to have his marriage to Vargo declared void on the theory that the 1987 Vargo–Turi divorce
decree was void because the decree was not preceded by an order reinstating the case. The
Collin County judge dismissed O’Donnell’s petition without prejudice and without stating the
reasons.
The case was then transferred to a different court in Collin County, and O’Donnell filed
an amended petition to have his marriage to Vargo declared void. In August 2013, the new
presiding judge, in a non-final order, denied O’Donnell’s amended petition, stating in his order
that the Texas Declaratory Judgments Act did not authorize him to declare a different court’s
judgment void and that O’Donnell’s petition was an impermissible collateral attack on the
Vargo–Turi divorce decree.
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O’Donnell filed in this case, the 1986 Dallas County Vargo–Turi divorce case, a “motion
to set aside and vacate void judgment” arguing that the trial court lacked jurisdiction to render
the Vargo–Turi divorce decree because the case was dismissed for want of prosecution and was
not reinstated before the divorce decree was signed. O’Donnell further asserted his standing to
attack the judgment because he was Vargo’s putative husband and Vargo had filed for divorce
against him in Collin County.
In response to O’Donnell’s motion, Vargo filed a combined plea to the jurisdiction,
response, and sanctions motion invoking Texas Rule of Civil Procedure 13 and Texas Civil
Practice and Remedies Code Chapter 10.
Vargo and O’Donnell filed cross-motions for summary judgment. The trial court heard
those motions and Vargo’s sanction motion together. After hearing the summary judgment
motions, the court granted Vargo’s motion, denied O’Donnell’s motion, and took up Vargo’s
sanctions motion.
After taking evidence and hearing arguments on the sanctions motion, the trial court
granted Vargo’s sanctions motion and awarded her $7,617.27. The court signed written orders
consistent with its oral rulings.
O’Donnell requested findings of fact and conclusions of law. The judge complied with
that request. O’Donnell then perfected this appeal.
II. ANALYSIS
A. Standard of Review
We review a sanction order for abuse of discretion. Keith v. Solls, 256 S.W.3d 912, 917
(Tex. App.—Dallas 2008, no pet.) (sanctions under Rule 13); Law Offices of Windle Turley, P.C.
v. French, 164 S.W.3d 487, 490 (Tex. App.—Dallas 2005, no pet.) (sanctions under civil
practice and remedies code Chapters 9 and 10). A trial court abuses its discretion in imposing
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sanctions only if it bases its order on an erroneous view of the law or a clearly erroneous
assessment of the evidence. 164 S.W.3d at 490. The legal sufficiency of the evidence is a
relevant factor when assessing whether the trial court abused its discretion. Armstrong v. Collin
Cnty. Bail Bond Bd., 233 S.W.3d 57, 62 (Tex. App.—Dallas 2007, no pet.); see also Rodriguez
v. MumboJumbo, L.L.C., 347 S.W.3d 924, 928 (Tex. App.—Dallas 2011, no pet.) (reversing
sanction because there was no evidence that appellant had committed conduct trial court
sanctioned him for).
Where, as here, a sanctions order names a specific rule or tracks a rule’s language, the
appellate court is confined to determining whether sanctions are proper under that rule alone.
See Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583–84 (Tex. 2006) (per curiam);
Metzger v. Sebek, 892 S.W.2d 20, 51 (Tex. App.—Houston [1st Dist.] 1994, writ denied); see
also GTE Commc’ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 731 (Tex. 1993) (orig. proceeding)
(“Since plaintiffs do not contend, and the district court did not find, that GCSC’s assertions were
harassing, a finding of bad faith was a prerequisite to sanctions.”).
Because O’Donnell’s third issue is case dispositive, we address it first.
B. O’Donnell’s Third Issue: Did the trial court abuse its discretion by ordering
sanctions based on insufficient evidence?
O’Donnell’s issue argues that there is insufficient evidence that he committed any
sanctionable conduct and, alternatively, the evidence does not support the sanction’s amount.
For the reasons discussed below, we conclude that the evidence does not support essential
elements under both Rule 13 and Chapter 10.
1. The trial court’s findings
The trial court made these relevant findings:
1. O’Donnell’s conduct in continuing to ask the Court to set aside as
void the Agreed Final Decree of Divorce entered in 1987 in this case is without
factual basis.
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...
4. The filings by O’Donnell in this case were groundless.
5. The filings by O’Donnell in this case were without a good faith
investigation into the applicable law.
....
8. O’Donnell brought a bill of review proceeding more than 20 years
after limitations had expired to bring such action in this case.
9. O’Donnell should have known that limitations had long since
expired to bring an action for bill of review in this case.
10. The filings of O’Donnell in this case were not made with a good
faith intention for the extension of existing law.
11. The allegations made by O’Donnell in this case are groundless and
have been brought in bad faith (emphasis added).
2. Rule 13
Rule 13 provides that a person who signs a pleading certifies that (1) he has read the
pleading, and (2) to the best of his knowledge, information, and belief formed after reasonable
inquiry, the pleading is not (i) groundless and brought in bad faith or (ii) groundless and brought
for the purpose of harassment. TEX. R. CIV. P. 13. Under Rule 13, the court may sanction the
person who signed the pleading, a represented party, or both. Id.
The focus here is on element “(2)(i)” listed above because that is the Rule 13 prong upon
which the trial court relied.
The rule defines “groundless” as having no basis in law or fact and not warranted by a
good faith argument for the extension, modification, or reversal of existing law. Id. It is not
enough, however, to support Rule 13 sanctions that the pleading was groundless; the movant
must also prove that the party (or counsel) also acted in bad faith or for the purpose of
harassment. TEX. R. CIV. P. 13; Dike v. Peltier Chevrolet, Inc., 343 S.W.3d 179, 191 (Tex.
App.—Texarkana 2011, no pet.) (“A groundless pleading is not sanctionable unless it is also
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brought in bad faith or for the purpose of harassment.”). For purposes of this appeal, we assume
without deciding that O’Donnell’s motion was groundless and focus on whether the record
supports the finding that O’Donnell filed the motion in bad faith.
“Bad faith [under Rule 13] is not simply bad judgment or negligence, but means the
conscious doing of a wrong for dishonest, discriminatory, or malicious purpose[s].” Keith, 256
S.W.3d at 916. The non-movant’s intent is an element of bad faith and may be shown by direct
or circumstantial evidence. See id. at 919.
The rule rebuttably presumes that pleadings are filed in good faith. TEX. R. CIV. P. 13.
And the movant must overcome that presumption. Cherry Petersen Landry Albert LLP v. Cruz,
443 S.W.3d 441, 453 (Tex. App.—Dallas 2014, pet. filed).
3. Did the trial court abuse its discretion under Rule 13 by finding that
O’Donnell brought the motion in bad faith?
We conclude that Vargo did not rebut the presumption that O’Donnell’s pleading was
filed in good faith.
At the sanctions hearing, the trial court admitted three exhibits: (1) O’Donnell’s amended
petition for declaratory judgment filed in Collin County, (2) Vargo’s plea to the jurisdiction and
response to that amended petition, and (3) Vargo’s attorneys’ fee statements. The trial court also
took judicial notice of the Collin County orders and pleadings that were attached to the summary
judgment motions. And Vargo’s attorney testified briefly about the fees Vargo had incurred in
the case and about the course of proceedings in Collin County before O’Donnell filed the motion
to set aside in Dallas County. While O’Donnell was available to testify, he was not called at the
hearing.
Although the two Collin County judges did not grant O’Donnell the relief he sought, one
judge stated no reasons for her decision and the other stated that he believed that he was not
authorized to declare void a final judgment issued by another trial court. Neither ruling held that
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O’Donnell could not obtain the relief he sought from the Dallas County district court that issued
the judgment. Those rulings do not rebut the presumption that O’Donnell filed the Dallas
County motion to set aside in good faith. Cf. Dike, 343 S.W.3d at 191–92 (fact that attorneys
had previously filed and withdrawn eleven similar lawsuits, standing alone, was no evidence of
bad faith).
Vargo argues that the affidavit of Chandler Lindsley, which she attached to her sanctions
motion, supplied some evidence of O’Donnell’s bad faith. But we cannot consider this affidavit
because (1) it was not admitted into evidence at the sanctions hearing, and (2) we cannot take
judicial notice of its contents. See B.L.M. v. J.H.M., III, No. 03-14-00050-CV, 2014 WL
3562559, at *11 (Tex. App.—Austin July 17, 2014, pet. denied) (mem. op.) (“A court may take
judicial notice of the existence of pleadings and other documents that have been filed in a case,
but the court cannot take judicial notice of the truth of allegations in those documents unless they
have been admitted into evidence.”).
First, Rule 13 requires an evidentiary hearing so that the trial court can make the
necessary factual determinations about motives and credibility. See, e.g., Keith, 256 S.W.3d at
917; N.Y. Underwriters Ins. Co. v. State Farm Mut. Auto. Ins. Co., 856 S.W.2d 194, 205 (Tex.
App.—Dallas 1993, no writ). “In order for the trial court to consider documents as evidence in a
rule 13 context, they must be admitted in compliance with the rules of evidence at the
evidentiary hearing.” Alejandro v. Bell, 84 S.W.3d 383, 393 (Tex. App.—Corpus Christi 2002,
no pet.); see also Bedding Component Mfrs., Ltd. v. Royal Sleep Prods., Inc., 108 S.W.3d 563,
564 (Tex. App.—Dallas 2003, no pet.) (“Without a hearing on a motion for sanctions, the trial
court has no evidence before it to determine that a pleading is sanctionable.”). Because the
Lindsley affidavit was not admitted into evidence at the sanctions hearing, it was not before the
trial court and cannot supply the required evidence of O’Donnell’s alleged bad faith. See
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Alejandro, 84 S.W.3d at 393 (letter attached to sanctions motion but not admitted into evidence
at sanctions hearing could not be considered as evidence).
Second, Vargo argues that the trial court might have taken judicial notice of its own
records. But the trial court made no such finding and, in all events, could not take judicial notice
of the truth of Lindsley’s assertions in her affidavit. See Guyton v. Monteau, 332 S.W.3d 687,
693 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (“[T]he trial court may not take judicial
notice of the truth of factual statements and allegations contained in the pleadings, affidavits, or
other documents in the file.”); see also B.L.M., 2014 WL 3562559, at *11.
Because the Lindsley affidavit was not admitted into evidence, we cannot consider it.
See Barnard v. Barnard, 133 S.W.3d 782, 789 (Tex. App.—Fort Worth 2004, pet. denied) (“As a
general rule, documents not admitted into evidence are not considered by an appellate court”).
We conclude that the trial court abused its discretion to the extent it relied on Rule 13 as a
basis for the sanctions order. See Rodriguez, 347 S.W.3d at 928.
4. Chapter 10
As relevant here, civil practice and remedies code § 10.001 provides as follows:
The signing of a pleading or motion as required by the Texas Rules of Civil
Procedure constitutes a certificate by the signatory that to the signatory’s best
knowledge, information, and belief, formed 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;
(2) each claim, defense, or other legal contention in the pleading or
motion is warranted by existing law or by a nonfrivolous argument for the
extension, modification, or reversal of existing law or the establishment of
new law; [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 ANN. § 10.001(1)–(3) (West 2002).
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A trial court, however, may not assess a monetary sanction against a represented party for
frivolous legal contentions in violation of § 10.001(2). Id. § 10.004(d). Because O’Donnell was
represented by counsel in this case, only § 10.001(1) and § 10.001(3) are potential bases for the
sanction.
As under Rule 13, a Chapter 10 movant bears the burden of overcoming the presumption
that pleadings and other papers are filed in good faith. See Unifund CCR Partners v. Villa, 299
S.W.3d 92, 97 (Tex. 2009) (per curiam). The movant must carry that burden with competent
proof. Id. “Incompetent evidence, surmise, or speculation will not suffice for the proof
required.” Id.
3. Did the trial court abuse its discretion under Chapter 10 by finding that
O’Donnell brought the motion without a factual basis and in bad faith?
The trial court’s findings do not precisely track the provisions of § 10.001. But in finding
1, the court found that O’Donnell’s conduct in continuing to seek to set aside Vargo’s 1987
divorce decree was “without factual basis.” We construe this finding to indicate a sanction under
§ 10.001(3), which requires factual contentions to have evidentiary support or to be likely to
have evidentiary support after a reasonable opportunity for investigation or discovery. And in
finding 11, the court found that O’Donnell’s allegations were groundless and brought in bad
faith. We construe this finding to indicate a sanction under § 10.001(1), which requires
pleadings and motions not to be presented for any improper purpose.
But we have already concluded that Vargo did not rebut the presumption that that
O’Donnell brought the motion to set aside in good faith. The only “improper purpose” found by
the trial court was that O’Donnell brought the motion to set aside in bad faith. Accordingly, the
sanction cannot be supported by the improper purpose prong of § 10.001(1).
O’Donnell alleged only a few facts in support of the motion to set aside. Essentially,
O’Donnell alleged that (1) the Vargo–Turi divorce case was dismissed for want of prosecution,
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(2) no motion to reinstate was ever filed, (3) no reinstatement order was ever signed, and (4) the
divorce decree was signed several days after the dismissal order was signed. Vargo did not show
that these allegations had no evidentiary support. Thus, the sanction cannot be supported by a
violation of § 10.001(3).
We conclude that the trial court abused its discretion to the extent it relied on Chapter 10
as a basis for the sanction order. See Rodriguez, 347 S.W.3d at 928.
C. Conclusion
Based on O’Donnell’s arguments in his third issue, we conclude that the trial court’s
sanction order was an abuse of discretion. Accordingly, we need not address O’Donnell’s other
issues. See TEX. R. APP. P. 47.1.
III. DISPOSITION
For the foregoing reasons, we reverse the trial court’s order granting Vargo’s motion for
sanctions and render judgment denying that motion. In all other respects, we affirm the trial
court’s judgment.
140404F.P05 /Bill Whitehill/
BILL WHITEHILL
JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ROBERT T. O'DONNELL, Appellant On Appeal from the 302nd Judicial District
Court, Dallas County, Texas
No. 05-14-00404-CV V. Trial Court Cause No. DF-86-15027.
Opinion delivered by Justice Whitehill.
JULIA L. VARGO, Appellee Justices Lang-Miers and Schenck
participating.
In accordance with this Court’s opinion of this date, we REVERSE the trial court’s order
granting appellee Julia L. Vargo’s motion for sanctions and RENDER judgment denying that
motion for sanctions. In all other respects, we AFFIRM the trial court’s judgment.
It is ORDERED that appellant Robert T. O’Donnell recover his costs of this appeal from
appellee Julia L. Vargo.
Judgment entered August 10, 2015.
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