Judy Cook v. Joe Alfred Izen Jr. and Karen Lee Cooley ( 2019 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-17-00025-CV
____________________
JUDY COOK, Appellant
V.
JOE ALFRED IZEN JR. AND KAREN LEE COOLEY, Appellees
_______________________________________________________ ______________
On Appeal from the 253rd District Court
Liberty County, Texas
Trial Cause No. CV1104671
________________________________________________________ _____________
MEMORANDUM OPINION
All the parties appeal from the trial court’s rulings on their respective
combined traditional and no-evidence motions for summary judgment. In her appeal,
Judy Cook argues the trial court erred in granting Joe Alfred Izen Jr.’s and Karen
Lee Cooley’s motion for summary judgment because fact issues exist that prevented
the court from disposing of her claims by summary judgment. In a cross-appeal, Izen
1
and Cooley argue that the trial court erred by denying their requests for attorney’s
fees and sanctions. We conclude the issues the parties have raised in their respective
appeals are either without merit or were not preserved for our review. For these
reasons, we affirm the trial court’s judgment.
Background
Izen is an attorney who holds a license to practice law in Texas. Cook is a
Montana resident, who, at one time, held a license to sell real estate there. Cook has
never been licensed to sell real estate in Texas.
Before the trial of the case that resulted in this appeal, Izen represented Cook
in a lawsuit in Harris County, Texas. When that lawsuit ended, Cook failed to pay
Izen’s bill. In 2004, Izen sued Cook for the fees he claimed that Cook failed to pay.
The parties settled that suit in October 2009. To carry out the settlement, Izen
dismissed his suit against Cook in return for Cook’s signing a $40,000 promissory
note. The note required Cook to make monthly installment payments on the principal
and interest due each month on her note.
The same day Cook signed the note, Cook, Cooley, and Izen signed a written
agreement titled “AGREEMENT TO FORM AND MANAGE L.L.C.” The 2009
Agreement contemplated that Cook would market and sell real estate that, on the
date the agreement was signed, was owned by Izen, Cooley, and a company they
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controlled. All the property that is described in the 2009 Agreement is in Liberty
County. The 2009 Agreement anticipated that
• Cook, Cooley, and Izen would become members in a limited liability
company named Cedar Woods Estates, L.L.C.;
• Izen and Cooley would perform the necessary legal and clerical work
to develop any real estate held by Cedar Woods;
• Cook would market and sell any property acquired by Cedar Woods;
• Izen and Cooley would convey a 120-acre tract of property they own in
Liberty County to Cedar Woods;
• Cook, Izen, and Cooley would contribute equally to the costs required
to develop the property held by the L.L.C.;
• an entity, named Measures Realty Corporation, which Izen and Cooley
controlled, would become a part of Cedar Woods, and any money that
Cedar Woods realized from then sales of lots owned by Measures
Realty would be used by Cedar Woods to “pay the development costs”
incurred by Cedar Woods;
• Izen, Cooley, and Cook would receive equal membership interests in
Cedar Woods;
• a debt owed to The Sykes Company for survey work on the land Cedar
Woods was to acquire would “be paid out of the first profits[,]” of
Cedar Woods, but Izen and Cooley were not assuming “any personal
Liability (sic) for making such payments[;]”
• Cedar Woods recognized debts of $30,000 that it owed Cook for the
payments she made toward developing the property identified in the
agreement, and a debt of $10,000 that it owed to Izen for the payments
he made toward developing the property identified in the agreement;
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• funds advanced to Cedar Woods would “be treated as loans repayable
by [Cedar Woods] to the member(s) advancing same[;]”
• the parties would use any money realized from the sales of property
owned by Cedar Woods to pay the costs attributable to those properties;
and
• the members of Cedar Woods would split the profits, if any, realized by
Cedar Woods “[q]uarterly or as all members agree.”
Several months after Cook signed the promissory noted, she defaulted on her
obligation to make monthly payments. Also, Izen never formed Cedar Woods, and
he and Cooley never transferred any real property to Cedar Woods.
In July 2011, Izen and Cooley sued Cook in Liberty County alleging they were
entitled to rescission on the 2009 Agreement. When Cook answered, she filed a
general denial and a counterclaim, alleging that Izen and Cooley breached the
obligations they owed her under the 2009 Agreement.
In 2012, Cook amended her counterclaim, suing Izen and Cooley on theories
ranging from promissory estoppel to fraud. In September 2015, Izen and Cooley
amended their petition and added a claim alleging that Cook had defaulted on the
promissory note she gave Izen in return for his agreement to dismiss his suit for
attorney’s fees.
In September 2016, Cook filed a hybrid traditional and no-evidence motion
for summary judgment on Izen’s and Cooley’s claims. In October 2016, Izen and
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Cooley filed a hybrid traditional and no-evidence motion for summary judgment. In
their hybrid motion, Izen and Cooley addressed all of Cook’s claims as well as their
claims for rescission, Izen’s claim to foreclose on Cook’s note, and their claims
seeking attorney’s fees. Following a hearing, the trial court signed interlocutory
orders on the cross-motions. In the orders, the trial court denied Cook’s hybrid
motion and granted Izen’s and Cooley’s hybrid motion, except as to their claims for
attorney’s fees.
Less than one month later, Cook filed a motion asking the court to reconsider
its rulings on the parties’ hybrid motions. In January 2017, the trial court conducted
a hearing on Cook’s request. By motion, Cook also asked the trial court to allow her
to file additional summary judgment evidence. In the hearing, the trial court denied
both of Cook’s motion.
In the same hearing, the trial court considered Izen’s and Cooley’s requests
for attorney’s fees.1 The trial court also considered Izen’s and Cooley’s motion for
1
The traditional section of Izen’s and Cooley’s combined motion for summary
judgment asked the trial court to award them attorney’s fees of $106,325. Izen’s and
Cooley’s combined motion includes an itemized bill for legal services performed
between July 2011 and October 2016 on the suit that is the subject of this appeal.
The bill appears to reflect fees for all the work Izen performed, ranging from the
work required to defend Izen and Cooley from Cook’s counterclaims to his work to
foreclose on the note Cook signed in consideration for a release of Izen’s claim for
attorney’s fees in the other suit.
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sanctions. After hearing argument, the trial court denied Izen’s and Cooley’s request
for sanctions and Izen’s and Cooley’s motion for summary judgment on their claims
for attorney’s fees. After announcing its rulings, the trial court stated: “I would like
to have an order stating all of those things.” At that point, Izen volunteered to draft
the order. He suggested that the trial court include language of finality in the order
so that it functioned as “a final judgment disposing of all parties and all claims[.]”
The trial court agreed with Izen’s suggestion, stating “[t]hat’s certainly how I intend
it to be.”
Six days later, the trial court signed a final judgment. In the judgment, the trial
court (1) ordered Cook to pay Izen $39,676.40 in unpaid principal and accrued
interest due on Cook’s note, (2) denied Izen’s and Cooley’s motion for summary
judgment on their respective claims for attorney’s fees, (3) ordered that Cook take
nothing on her claims, (4) denied Izen’s and Cooley’s motion for sanctions, and (5)
denied relief on all claims not otherwise mentioned. Later, all parties filed timely
notices of appeal.
Standard of Review
We review rulings on motions for summary judgment using a de novo
standard. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
Because the trial court’s judgment fails to specify the grounds on which it resolved
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Izen’s and Cooley’s hybrid motion, we presume the ruling is based on one or more
of the grounds that Izen and Cooley advanced in their motion. See Lightning Oil Co.
v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017). When a trial
court’s summary judgment ruling fails to identify the ground or grounds on which
the trial court’s ruling is based, we must affirm the judgment if any of the theories
presented in the motion and preserved for appeal support the manner the trial court
resolved the motion. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d
211, 216 (Tex. 2003); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).
In resolving Cook’s appellate issues, we first consider the trial court’s ruling
on the no-evidence part of Izen’s and Cooley’s hybrid motion. See Ford Motor Co.
v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). Under Rule 166a(i) of the Texas
Rules of Civil Procedure, a court may rule on a no-evidence motion for summary
judgment after the party opposing the motion has had adequate time for discovery
on the claims the moving party’s no-evidence motion has challenged. Tex. R. Civ.
P. 166a(i). Rule 166a(i) requires that trial courts “grant the motion unless the
respondent produces summary judgment evidence raising a genuine issue of material
fact” on the elements of the claims that the party moving for summary judgment has
challenged. Id.
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As for no-evidence motions for summary judgment, the Texas Supreme Court
has explained the no-evidence motion must be granted if “‘(a) there is a complete
absence of evidence of a vital fact, (b) the court is barred by rules of law or of
evidence from giving weight to the only evidence offered to prove a vital fact, (c)
the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the
evidence conclusively establishes the opposite of the vital fact.’” King Ranch, Inc.
v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Merrell Dow Pharms., Inc
v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). Because a trial court’s decision to
grant a no-evidence motion for summary judgment is essentially a pretrial directed
verdict, we use the same legal sufficiency standard to review the trial court’s ruling
that is used to review rulings on motions for directed verdicts. Id. at 750-51.
In their no-evidence motion, Izen and Cooley alleged that Cook could produce
no evidence to show that the 2009 Agreement was valid, that Cook had performed
or tendered performance under the agreement, that they had breached the agreement,
or that Cook had been damaged by their alleged breach. These allegations shifted
the burden of proof to Cook to produce enough evidence to show that a genuine issue
of material fact existed on each of the elements of her breach of contract claim. See
Tex. R. Civ. P. 166a(i); Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.
2006).
8
In reviewing the evidence Cook produced in response to Izen’s and Cooley’s
no-evidence motion, we view the evidence the trial court considered in the light that
favors Cook’s claims. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).
In our review, we must determine whether the evidence before the trial court “‘rises
to a level that would enable reasonable and fair-minded people to differ in their
conclusions.’” Chapman, 118 S.W.3d at 751 (quoting Havner, 953 S.W.2d at 711).
If the party responding to a no-evidence motion fails to produce evidence sufficient
to establish that fact issues exist on the elements of her claims that the no-evidence
motion challenged, the trial court must grant the no-evidence motion. See Tex. R.
Civ. P. 166a(i).
Cook’s Issues
Cook raises four issues in her appellate brief. In these, Cook argues the trial
court erred (1) by failing to find that Izen and Cooley breached the 2009 Agreement;
(2) by finding the agreement to be void; (3) by considering certain summary
judgment attached to Izen’s and Cooley’s hybrid motion, declarations signed by
Izen, in resolving the hybrid motions; and (4) by concluding that Cook defaulted on
the note that she gave Izen.
We address the trial court’s ruling on the no-evidence section of Izen’s and
Cooley’s motion first. See Ridgway, 135 S.W.3d at 600. For convenience, we focus
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on whether Cook produced evidence raising a fact issue showing she was damaged
when Izen and Cooley breached the 2009 Agreement before addressing whether the
record showed that a fact issue exists on the other elements of her breach of contract
claim. In her brief, Cook argues that she was damaged when Izen and Cooley
breached the 2009 Agreement because she was not compensated for the services she
provided to them for her efforts to market and sell properties that they continued to
own but should have transferred to Cedar Woods. As to Cook’s damages, Cook’s
response to Izen’s and Cooley’s motion alleges that she “performed work, and [she]
incurred out of pocket expenses” associated with marketing and sale of the properties
that are the subject of the parties’ 2009 Agreement.
On appeal, Cook cites four pages from her deposition in her brief to support
her claim that she presented evidence to show that a fact issue existed on her
damages claim. Cook, however, did not include these four pages in the response she
filed in the trial court. Nor are the pages found elsewhere in the appellate record. 2
2
Cook attached sixty-five pages of documents to her response, but these do not
include any pages from her deposition. The documents Cook attached to her
response show that Cook received an invoice for a sign advertising property in Cedar
Woods. The invoice, however, does not show that Cook paid the bill. Another
document attached to Cook’s response is an email from Izen to Cook. It reflects that
Izen represented that he would mail the individual who sent the invoice for the sign
a check.
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Under the 2009 Agreement, Cook, Izen, and Cooley agreed to split the profits,
if any, from the sales of land that Izen and Cooley agreed to convey to an entity to
be named Cedar Woods. To prove that the breach of the agreement resulted in
damages, Cook needed to produce some evidence to show the activities associated
with carrying out the obligations under the 2009 Agreement would have produced
profits. See Southwest Battery Corp. v. Owen, 115 S.W.2d 1097, 1098 (Tex. 1938)
(explaining that a plaintiff cannot recover anticipated profits when the record fails
to contain any evidence from which the profits may be estimated). The record before
the trial court contains no evidence raising a fact issue showing that Cook would
have received profits had Izen and Cooley performed the obligations imposed on
them by the 2009 Agreement.
At most, Cook’s evidence shows that she paid expenses and spent time and
effort marketing the properties that are identified in the 2009 Agreement. But under
the 2009 Agreement, any funds advanced by a member for the benefit of Cedar
Woods were treated as loans payable by Cedar Woods. Thus, Cook’s evidence that
she spent time and money on the project and that her work generated offers fails to
show that Cook would have realized a profit from the activities associated with the
work she performed under the 2009 Agreement. See Horizon Health Corp. v. Acadia
Healthcare Co., Inc., 520 S.W.3d 848, 865 (Tex. 2017) (holding that the plaintiff’s
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evidence on damages was legally insufficient to support a jury’s finding on lost
profits when the evidence admitted in the trial addressed gross sales, not profits).
Assuming without deciding that the 2009 Agreement was enforceable, that
Cook performed the obligations she had under the agreement, and that Izen and
Cooley breached the agreement, the summary judgment evidence before the trial
court fails to show that Cook would have realized a profit from the work she did or
the loans she made to promote and develop Cedar Woods. Because Cook failed to
meet her burden to raise an issue on whether she lost profits when Izen and Cooley
breached the 2009 Agreement, we hold the trial court was authorized to grant Izen’s
and Cooley’s no-evidence motion. Because we have resolved issue one against
Cook, we need not address her next two issues. See FM Props. Operating Co. v. City
of Austin, 22 S.W.3d 868, 872 (Tex. 2000).
In issue four, Cook challenges the trial court’s ruling allowing Izen to
foreclose on her note. The trial court’s ruling on this issue is based on the traditional
section of Izen’s and Cooley’s hybrid motion. The summary judgment evidence
relevant to Izen’s claim on Cook’s promissory note includes a copy of the note,
Cook’s deposition testimony acknowledging that she signed the note, and Izen’s
demand letter notifying Cook that she had defaulted on the note. In her brief, Cook
has not argued that the summary judgment evidence failed to establish that she quit
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making payments on the note. Instead, she argues that she was not in default because
the value of the services she provided in performing the 2009 Agreement satisfied
her payment obligations under the terms of her note.
We disagree with Cook’s argument that the terms of her promissory note
allowed her to substitute in-kind services for the obligation created by the note. The
note called for Cook to pay the note “in the legal currency of the United States.”
None of the provisions in the note allowed Cook to fulfill her obligation by
performing a service. Moreover, under the 2009 Agreement, Cook contributed her
services to market and develop Cedar Woods in return for a one-third interest in
Cedar Woods.
In her brief, Cook also raises a statute of limitations defense to Izen’s legal
right to recover what she owed on her note. According to Cook’s brief, the four-year
statute of limitations bars Izen’s breach of contract claim. See Tex. Civ. Prac. &
Rem. Code Ann. § 16.051 (West 2015) (providing a four-year statute of limitations
for breach of contract claims). In response to Cook’s argument, Izen contends that
Cook failed to plead limitations as a defense and that her failure to raise limitations
waived the defense.
The record shows that in September 2015, Izen sued Cook alleging that she
was in default on her note, so he sued more than five years after Cook quit making
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the monthly installment payments required by her note. 3 Our review of Cook’s
pleadings reveals that she failed to plead limitations until after the trial court granted
Izen’s motion. Under Rule 94 of the Texas Rules of Civil Procedure, limitations is
an affirmative defense that must be pleaded to avoid waiver. Tex. R. Civ. P. 94.
Under Texas law, “[a]n affirmative defense that is not pleaded or proved and on
which findings are not obtained is waived and cannot be preserved by raising the
affirmative defense for the first time in a motion for new trial.” Hamm v. Millennium
Income Fund, L.L.C., 178 S.W.3d 256, 268 (Tex. App.—Houston [1st Dist.] 2005,
pet. denied) (citing In re C.M., 996 S.W.2d 269, 270 (Tex. App.—Houston [1st
Dist.] 1999, no pet.)).
While a statute of limitations defense is an issue that the parties can try by
consent, a trial by consent did not occur based on the record of the proceedings in
this case. The record shows that Izen objected when Cook raised limitations for the
first time in her motion to reconsider. See Frazier v. Havens, 102 S.W.3d 406, 411
(Tex. App.—Houston [14th Dist.] 2003, no pet.) (explaining the record did not
support the appellant’s claim that the parties tried a statute of limitations issue by
3
The summary judgment evidence includes an amortization schedule for Cook’s
note. Both the schedule and Cook’s note reflect that the note was to be paid over a
period of twenty years and that Cook had to make monthly payments on the debt
beginning in the month of November 2009. There is no dispute between the parties
that Cook quit making payments in 2010.
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consent). It also shows that the trial court denied Cook’s request to reconsider after
informing Cook that her request to reconsider was untimely. Thus, the trial court
never reached the merits of Cook’s claim that Izen’s breach of contract claim was
barred by limitations. Because Cook failed to timely raise a limitations defense, we
hold that she waived the defense and cannot rely on the defense to overturn the ruling
the trial court made on Izen’s claim. 4
In a reply brief, Cook argues for the first time that the promissory note she
gave Izen is unenforceable because the invoices Izen sent her on the note were issued
by Izen & Associates, P.C., an entity that she argues is defunct. Yet Cook, while in
the trial court, never challenged Izen’s standing to sue her on his breach of contract
claim. Therefore, Cook failed to preserve her lack of capacity argument for appellate
review. See Tex. R. Civ. P. 93 (requiring defendants to file verified pleadings to
challenge a plaintiff’s legal capacity to sue).
4
Even had Cook raised limitations promptly, Izen would have had a right to
recover most of the money that Cook owed on her note. Most of Cook’s installment
payments were due within four years or later of September 1, 2015, the date that
Izen first added his claim alleging that Cook had defaulted on her note. See Wood v.
Pyramid Cmty. Dev. Corp., No. 14-13-00990-CV, 2014 Tex. App. LEXIS 12578, at
*21 (Tex. App.—Houston [14th Dist.] Nov. 20, 2014, no pet.) (mem. op.)
(explaining that a debtor breaches an installment agreement each time the debtor
misses a payment); Slusser v. Union Bankers Ins. Co., 72 S.W.3d 713, 717 (Tex.
App.—Eastland 2002, no pet.) (same).
15
Under Texas law, a party cannot raise issues that concern another party’s lack
of standing unless they file verified pleadings alleging lack of capacity before trial.
Id. Cook failed to file a verified pleading challenging Izen’s standing to sue her on
the note. We hold that Cook cannot now challenge Izen’s legal capacity to collect
the money she owed on her note. See Pledger v. Schoellkopf, 762 S.W.2d 145, 146
(Tex. 1988) (holding that a verified plea must be filed if there is a question over a
party’s “right to bring suit or be sued”); see also El T. Mexican Rests., Inc. v. Bacon,
921 S.W.2d 247, 250 (Tex. App.—Houston [1st Dist.] 1995, writ denied) (holding
that a “[l]ack of capacity must be challenged with a verified plea in abatement or it
is waived”).
Izen’s Appeal
In two cross-points in their brief, Izen and Cooley argue the trial court erred
by denying their claim for attorney’s fees and by denying their motion for sanctions.
See Tex. R. App. P. 38.2(b)(1) (allowing appellees to raise cross-points in their
briefs). In a third cross-point, they request that this Court sanction Cook for pursuing
what they argue is a frivolous appeal. Tex. R. App. P. 45 (authorizing appellate
courts to award damages against a party for filing a frivolous appeal).
First, we address Izen’s and Cooley’s complaint that the trial court erred by
denying their claims for attorney’s fees. We note that Izen’s and Cooley’s arguments
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encompass claims by Izen for attorney’s fees for successfully prosecuting his claim
to foreclose on Cook’s note, the attorney’s fees Izen and Cooley sought for Izen’s
work to defend against Cook’s breach of contract claim, and attorney’s fees for
Izen’s prosecuting Izen’s and Cooley’s claim for rescission. See Tex. Civ. Prac. &
Rem. Code Ann. § 38.001(1) (West 2015) (authorizing recovery of attorney’s fees
when the party recovers on a contract), § 37.009 (West 2015) (authorizing award of
court costs and reasonable and necessary attorney’s fees in declaratory judgment
actions “as are equitable and just”). We note that when the trial court denied the
claims for attorney’s fees, it made the ruling based on the traditional section of Izen’s
and Cooley’s hybrid motion. For that reason, the trial court’s ruling denying their
claims was interlocutory, not final. See Webb v. Jorns, 488 S.W.2d 407, 409 (Tex.
1972) (explaining that an interlocutory order disposing of some claims in a case does
not become final until the trial court renders a judgment that disposes of all the
claims before it).
As for Izen’s claim for attorney’s fees for foreclosing on Cook’s note, we
recognize that Izen has a statutory right to recover reasonable fees because he
successfully prosecuted his breach of contract claim. See Smith v. Patrick W.Y. Tam
Trust, 296 S.W.3d 545, 547 (Tex. 2009) (citing Bocquet v. Herring, 972 S.W.2d 19,
20 (Tex. 1998) (holding that some award of attorney’s fees is required under chapter
17
38 of the Texas Civil Practice and Remedies Code in a breach of contract case when
the party is represented by an attorney and prevails on a claim alleging the other
party breached the contract)). That said, the issue as to what amount is reasonable is
one that is ordinarily a question of fact and cannot be decided without a trial. See
Garcia v. Gomez, 319 S.W.3d 638, 642 (Tex. 2010) (noting that “[g]enerally, the
determination of reasonable attorney’s fees is a question of fact”).
As to Izen’s and Cooley’s attorney’s fees claim, Izen and Cooley are not
entitled to recover fees for successfully prosecuting their no-evidence motion for
summary judgment, as such an award is not authorized by statute. Under Texas law,
a party may not recover attorney’s fees unless attorney’s fees are authorized by
statute or by the parties’ contract. See Holland v. Wal-Mart Stores, Inc., 1 S.W.3d
91, 95 (Tex. 1999). No statute authorizes a recovery of attorney’s fees for
successfully prosecuting a no-evidence motion for summary judgment.
Additionally, the 2009 Agreement between Cook, Cooley, and Izen has no provision
in it that authorizes the prevailing party to recover attorney’s fees for filing or
defending a breach of contract case. Therefore, Izen and Cooley are not entitled to
attorney’s fees for the time that Izen spent defending himself and Cooley against
Cook’s breach of contract claim. Id.
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While we have recognized the trial court’s error in completely denying Izen’s
claim for the attorney’s fees associated with his claim to foreclose on Cook’s note,
we conclude the trial court’s judgment should not be reversed based on that error.
When the trial court announced its ruling denying all claims for attorney’s fees, the
ruling was proper because the ruling meant only that a fact issue existed on whether
the fees were reasonable. In this case, the trial court’s error occurred when the trial
court made what should have been an interlocutory ruling final. By suggesting to the
trial court that the court make its rulings final, Izen invited that error.
Under the invited-error doctrine, we cannot overturn a judgment that resulted
from the trial court’s agreement to comply with a request made by the party who is
complaining about the ruling on appeal. See Tex. R. App. P. 33.1; Tittizer v. Union
Gas Corp., 171 S.W.3d 857, 862 (Tex. 2005) (explaining that under the invited-error
doctrine, a party cannot complain on appeal about an action that party specifically
requested). The invited-error doctrine applies to Izen’s and to Izen’s and Cooley’s
claims for attorney’s fees. For that reason, we overrule cross-point one.
In cross-point two, Izen and Cooley argue that the trial court abused its
discretion by denying their motion for sanctions. We apply an abuse-of-discretion
standard to review a trial court’s ruling on a motion for sanctions. Low v. Henry, 221
S.W.3d 609, 614 (Tex. 2007). An abuse of discretion occurs if the trial court acted
19
without reference to any guiding rules or principles. Horizon Health Corp., 520
S.W.3d at 884.
Izen and Cooley asked the trial court to impose sanctions on Cook and her
attorneys under Chapter 10 of the Texas Civil Practice and Remedies Code and under
Rule 13 of the Texas Rules of Civil Procedure. See Tex. Civ. Prac. & Rem. Code
Ann. § 10.004(a) (West 2017) (authorizing sanctions against the party and the
party’s attorney if a court determines that a person has made a claim that has no
reasonable basis in fact or under the law); Tex. R. Civ. P. 13 (authorizing trial court’s
to sanction parties and attorneys for filing pleadings that are knowingly groundless
or false). The trial court denied their motion.
In their brief, Izen and Cooley have cited no cases where any appellate courts
have overturned a trial court’s decision denying a motion for sanctions. We note that
when parties have moved for sanctions but the motion was denied, our sister courts
have affirmed the rulings, explaining that no abuse of discretion occurred when the
trial court denied the motion. See In re Nicholas, No. 09-08-00452-CV, 2010 Tex.
App. LEXIS 3381 (Tex. App.—Beaumont May 6, 2010, pet. denied) (mem. op);
Great W. Drilling, Ltd. v. Alexander, 305 S.W.3d 688, 697-98 (Tex. App.—Eastland
2009, no pet.); Allstate Ins. Co. v. Garcia, No. 13-02-092-CV, 2003 Tex. App.
LEXIS 6246, at *2 (Tex. App.—Corpus Christi July 18, 2003, no pet.) (mem. op.).
20
Here, the trial court may have determined that Cook and her counsel did not
bring claims that were groundless and brought in bad faith. See Tex. R. Civ. P. 13.
Or, the trial court may have determined that Cook’s claims, while without merit, did
not violate Chapter 10. See Tex. Civ. Prac. & Rem. Code Ann. § 10.001 (West 2017).
We conclude that Izen’s and Cooley’s brief fails to show that the trial court abused
its discretion by denying their motion for sanctions. We overrule cross-point two.
In their third cross-point, Izen and Cooley argue that this Court should
sanction Cook and her attorneys for pursuing a frivolous appeal. In deciding whether
sanctions are justified under Rule 45 of the Texas Rules of Appellate Procedure, we
exercise caution. See Goss v. Houston Cmty. Newspapers, 252 S.W.3d 652, 657
(Tex. App.—Houston [14th Dist.] 2008, no pet.) (“Whether to grant sanctions for a
frivolous appeal is a matter of discretion that this court exercises with prudence and
caution and only after careful deliberation in truly egregious circumstances.”). “If an
appellant’s argument on appeal fails to convince us but has a reasonable basis in law
and constitutes an informed, good-faith challenge to the trial court’s judgment,
sanctions are not appropriate.” Id.
Mainly, Izen and Cooley argue that Cook’s appeal is frivolous because the
2009 Agreement is unenforceable because Cook never held a license to sell real
estate in Texas. See Tex. Occ. Code Ann. § 1101.806(b) (West Supp. 2018). While
21
we have not addressed that argument in resolving the parties’ other issues, we
address it to determine whether Cook’s appeal is frivolous.
Examining the Occupations Code’s requirement that individuals who market
real estate must hold a real estate license, we note that various exceptions exist to
the statute’s requirement. See Davis v. Campbell, 524 S.W.2d 790 (Tex. Civ. App.—
Dallas 1975, no writ) (explaining that the statutory licensing requirement did not
apply to the owner’s sale of his own property and no commission was involved);
Kaiser Gypsum Co. v. Jordan, 399 S.W.2d 588 (Tex. Civ. App.—Waco 1966, writ
ref’d n.r.e.) (noting that the statutory licensing requirement for realtors do not apply
to individuals sharing profits who are engaging in a joint venture); Mummert v.
Stekoll Drilling Co., 352 S.W.2d 526, 527 (Tex. Civ. App.—Dallas 1961, writ ref’d
n.r.e.) (recognizing that the statutory requirement to have a real estate license did not
apply to “joint adventurers and transactions between joint adventurers”); Coats v.
Windham, 254 S.W.2d 530, 534 (Tex. Civ. App.—Beaumont 1953, writ ref’d n.r.e.)
(applying joint venture exception to a transaction involving timber deeds); Gill v.
Smith, 233 S.W.2d 223, 229 (Tex. Civ. App.—Galveston 1950, writ ref’d n.r.e)
(holding that real estate licensing requirement did not apply to prevent joint ventures
from selling property and dividing the profits).
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In our opinion, the parties to the 2009 Agreement structured the agreement in
a way that allowed Cook to market and sell property as a joint venturer in a company
in which she was a managing member. The agreement gave Cook the right to receive
profits, not commissions, from the operations that involved Cedar Woods. Because
Cook’s claim that Izen and Cooley breached the 2009 Agreement was at least
arguable, we cannot fairly characterize her suit as frivolous. See Tex. R. App. P. 45.
For that reason, we overrule cross-point three.
Conclusion
For the reasons discussed, we affirm the trial court’s judgment. We decline
Izen’s and Cooley’s request to impose sanctions.
AFFIRMED.
_________________________
HOLLIS HORTON
Justice
Submitted on October 25, 2018
Opinion Delivered January 31, 2019
Before Kreger, Horton and Johnson, JJ.
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