David Barnes v. Justin M. Walsh ( 2023 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-20-00212-CV
________________
DAVID BARNES, Appellant
V.
JUSTIN M. WALSH, Appellee
________________________________________________________________________
On Appeal from the 284th District Court
Montgomery County, Texas
Trial Cause No. 20-02-02578-CV
________________________________________________________________________
MEMORANDUM OPINION
A person who aids or assists the taking, retaining, or concealing of a child in
violation of another’s possessory rights to the child may be jointly and severally
liable in damages to the injured person (emphasis added). Tex. Fam. Code §§
42.002(b), 42.003. Barnes, the father of two minor boys, appeals from a take nothing
summary judgment granted in favor of Walsh, a person Barnes accuses of aiding or
assisting Barnes’s former wife in taking, retaining or concealing his children from
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Barnes, in violation of Barnes’s possessory rights to the children. Barnes also
appeals the trial court’s award to Walsh of his attorney’s fees. Barnes, acting pro se,
argues that he submitted sufficient evidence to defeat the summary judgment on his
claim that Walsh may be civilly liable for damages under § 42.002(b) and 42.003 of
the Texas Family Code, because Walsh aided and assisted Barnes’s former wife in
interfering with Barnes’s possessory rights to his children by helping her to move
with the children to Russia and in selling her assets that she left behind to allow her
to retain possession of the children in Russia, contrary to a valid court order of a
Montgomery County family law court. Barnes further argues the trial court erred in
awarding Walsh attorney’s fees against Barnes pursuant to § 42.009 of the Texas
Family Code. We affirm in part, and reverse and remand part of the case for further
proceedings.
Background
A. The History of the Case
Barnes and his former wife, Svetlana Barnes, are the parents of two minor
children, Danny and Chip.1 Barnes and Svetlana were divorced in 2015, and as part
of the divorce decree, the 418th District Court of Montgomery County, Texas,
1
We use pseudonyms or initials in place of the names of the individuals who
were minors at the time that the underlying suit was filed, to protect the minors’
identities. Tex. R. App. P. 9.9(a)(3).
2
entered a standard possession order. In April of 2018, Svetlana filed a petition to
modify the parent-child relationship, alleging that Barnes had sexually abused one
of their children. In March of 2019, after a trial on Svetlana’s allegations of sexual
abuse against Barnes, a jury found Svetlana’s allegations against Barnes were
unfounded and, on March 26, 2019, the trial court entered an order denying
Svetlana’s petition to modify and reinstating Barnes’s possessory rights. Walsh
admitted that he attended the trial.
On the evening of March 26, 2019, after Svetlana’s allegations against Barnes
were rebuffed by the family law court, Walsh, Svetlana’s friend and former romantic
partner, accompanied Svetlana, her mother, and the children to the airport. Walsh
contends Svetlana told Walsh that she was taking the children on a vacation and
needed him to drive Svetlana’s mother home after Svetlana and the children were
dropped off at the airport. Svetlana then boarded an international flight with the
children, and the three of them have lived in Russia, the country of Svetlana’s birth,
ever since. Walsh admits that, on March 29, 2019, he learned of Svetlana’s intention
to remain in Russia with the children. In spite of this knowledge, Walsh continued
to communicate with and assist Svetlana in selling her home and vehicles in Texas
and he deposited the sales proceeds from such assets in her local bank account.
Barnes, acting pro se, subsequently filed three separate lawsuits to recover
damages against Svetlana, Walsh, and C.L. Crawley, Svetlana’s former attorney,
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alleging various grounds for recovery, including violations of Chapter 42 of the
Texas Family Code seeking civil liability for interference with his possessory
interest in his children. Barnes obtained a default judgment in his suit against
Svetlana, and the trial court awarded him a substantial amount in damages against
her. In Barnes’s suit against C.L. Crawley, after a trial, the trial court entered a take
nothing judgment as to Barnes’s claims against Crawley. On appeal in that case, we
affirmed in part and reversed and rendered in part. We affirmed that part of the trial
court’s judgment that rendered a take nothing judgment on Barnes’s claims against
Crawley, and we concluded that the intentional infliction of emotional distress claim
was barred by attorney immunity. However, we reversed that part of the trial court’s
judgment ordering Barnes to pay sanctions in the amount of Crawley’s attorney’s
fees and we rendered judgment that Crawley take nothing on his motion for
sanctions. Barnes v. Crawley, No. 09-20-00224-CV, 2022 Tex. App. LEXIS 3859(Tex. App.—Beaumont June 9, 2022, no pet.)(mem. op.).
Barnes also filed a separate suit individually, and on behalf of his two minor
sons, against Walsh. In his suit against Walsh, Barnes alleged that Walsh aided and
assisted Svetlana in taking the children to Russia and keeping the children in Russia
to prevent Barnes from exercising his extended possession rights granted by the child
custody order of the 418th District Court. Barnes alleged that Walsh intentionally
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caused severe emotional distress to Barnes and the children and that Walsh interfered
with the possession of his children under the trial court’s order.
Walsh filed a no-evidence and traditional motion for summary judgment as to
all of Barnes’s claims against Walsh. In his no-evidence motion for summary
judgment, Walsh argued that he had no knowledge of Svetlana’s plan to take the
children out of the United States permanently and that Barnes could produce no
evidence in support of any of the causes of action Barnes brought against Walsh.
Walsh also argued that there was no evidence to support Barnes’s claims on behalf
of the children. Barnes responded to the motion for summary judgment and argued
that there was sufficient evidence to defeat the summary judgment motion because
he had shown Walsh aided or assisted Svetlana in taking, retaining, or concealing
Barnes’s children in violation of Barnes’s possessory rights, and he attached a copy
of Walsh’s deposition to his response. The trial court granted Walsh’s motion for
summary judgment, and ordered that Barnes take nothing from Walsh, and it also
awarded Walsh attorney’s fees pursuant to § 42.009 of the Texas Family Code.
Barnes filed a pro se appeal of the take nothing judgment and attorney’s fee award
to this court.
B. Barnes’s Summary Judgment Evidence
Barnes submitted the sworn deposition testimony of Walsh in opposition to
the summary judgment and in his response to the motion for summary judgment
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Barnes cited the portions of the deposition that he contends creates an issue of
material fact sufficient to defeat Walsh’s motion for summary judgment. Walsh
testified in his deposition that he met Svetlana in approximately April of 2015. The
two of them enjoyed a romantic relationship for a time, but after their dating
relationship ended in 2017, they remained friends. Walsh indicated that although he
was generally aware that Barnes had some possessory right to the children, he was
not privy to the details of the court-ordered arrangement. Barnes submitted summary
judgment evidence that Walsh was present for the March 26, 2019, custody hearing
that restored the custody arrangement “to normal”; Walsh admitted in his deposition
that Svetlana took the children to the airport that same evening, because he
accompanied them, ostensibly because Svetlana’s mother needed a ride back to her
home after joining them on the trip to the airport. Walsh denied knowing on March
26, 2019, that Svetlana was in the process of taking the children to Russia to live
permanently, and further denied having entertained any intent to preclude Barnes’s
access to his children. Instead, Walsh indicated that it was initially his understanding
that Svetlana was taking the children “on vacation[,]” and it was not until March 29,
2019, when he read Svetlana’s social media post, that Walsh realized Svetlana’s
intent not to return to the United States. After Walsh learned of Svetlana’s plan to
remain in Russia with the children, Svetlana and Walsh communicated through “a
couple of hundred” emails between March 26, 2019, and February 2020, and Walsh
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assisted her in the sale of two cars she owned in Texas and helped her get her home
in Texas sold or rented. Walsh assisted Svetlana to transfer title to her cars into
Walsh’s name or give Walsh power of attorney on her behalf to sell the vehicles.
Walsh then sold the cars and deposited the sales proceeds into Svetlana’s local bank
account well after Svetlana had posted notice of her intent to keep the children in
Russia on March 29th.
Standard of Review
We review summary judgment orders de novo. Provident Life & Accident Ins.
Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). When, as here, the trial court’s order
does not specify the basis of its decision, we must affirm the judgment if any of the
movant’s theories are meritorious. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473
(Tex. 1995). When both no-evidence and traditional grounds for summary judgment
are asserted, we first review the trial court’s order under the no-evidence
standard. PAS, Inc. v. Engel, 350 S.W.3d 602, 607 (Tex. App.—Houston [14th Dist.]
2011, no pet.).
To prevail on a no-evidence summary judgment, the movant must allege that
no evidence exists to support one or more essential elements of a claim for which
the non-movant bears the burden of proof at trial. Tex. R. Civ. P. 166a(i); Kane v.
Cameron Int’l Corp., 331 S.W.3d 145, 147 (Tex. App.—Houston [14th Dist.] 2011,
no pet.). A no-evidence motion may not be conclusory but must instead give fair
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notice to the non-movant as to the specific element of the non-movant’s claim that
is being challenged. See Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310-11 (Tex.
2009). To defeat a no-evidence motion, the non-movant must then present evidence
raising a genuine issue of material fact on the challenged elements. Kane, 331
S.W.3d at 147. A fact issue exists where there is more than a scintilla of probative
evidence. See Buck v. Palmer, 381 S.W.3d 525, 527 (Tex. 2012) (per curiam). More
than a scintilla of evidence exists if the evidence rises to a level that would allow
reasonable and fair-minded people to differ in their conclusions as to the existence
of a vital fact. See Dworschak v. Transocean Offshore Deepwater Drilling, Inc., 352
S.W.3d 191, 196 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (citing Ford
Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004)). If more than one
reasonable inference may be drawn, a question of fact is ordinarily presented for the
fact finder to decide. Benoit v. Wilson, 239 S.W.2d 792, 796-97 (Tex. 1951).
To prevail on a traditional motion for summary judgment, a movant must
establish that no genuine issue of material fact exists so that the movant is entitled
to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Mann Frankfort Stein &
Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). Summary
judgment is appropriate if the movant conclusively negates at least one essential
element of the plaintiff’s claim. Wyly v. Integrity Ins. Sols., 502 S.W.3d 901, 905
(Tex. App.—Houston [14th Dist.] 2016, no pet.).
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“The movant must establish that no material fact issue exists and that it is
entitled to judgment as a matter of law.” Triton 88, L.P. v. Star Elec., L.L.C., 411
S.W.3d 42, 55 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (citing M.D. Anderson
Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam)). “In
reviewing the summary judgment, we must indulge every reasonable inference in
favor of the non-movant and resolve any doubts in [her] favor.” Grace v. Titanium
Electrode Prods., Inc., 227 S.W.3d 293, 297 (Tex. App.—Houston [1st Dist.] 2007,
no pet.). “We consider all grounds on which the trial court ruled that are preserved
for review and that are necessary for disposition of the appeal ....” Id. (quoting
Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996)). “Because a
motion for summary judgment must stand on its own merits, the nonmovant may
argue on appeal that the movant’s summary judgment proof is insufficient as a matter
of law, even if the nonmovant filed no response to the motion.” Id. See also Hall v.
Green Ridge Townhouse Homeowners Ass’n, Inc., 635 S.W.3d 697, 700-01 (Tex.
App.—Texarkana 2021, pet. denied).
When the trial court does not specify the basis for its summary judgment, the
appealing party must show it is error to base it on any ground asserted in the motion.
Star-Telegram, Inc., 915 S.W.2d at 473. The appellate court must affirm the
summary judgment if any one of the movant’s theories has merit. Id. We will now
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consider whether any of the grounds asserted by Walsh support the summary
judgment.
Analysis
A. No-Evidence Motion for Summary Judgment
Walsh’s no-evidence motion for summary judgment alleged that there was no
evidence as to necessary elements of Barnes’s claims for the following:
1. False imprisonment,
2. Intentional infliction of emotional distress, and
3. Interference with a possessory right.
Elsewhere in Walsh’s motion, Walsh alleged that a no-evidence summary judgment
was also appropriate as to his contention that the one satisfaction rule applied to this
matter, because “there remains no evidence to support a separate and distinct injury
for BARNES’ damages[.]”
1. False Imprisonment
Walsh’s motion contends that Barnes presented no evidence of false
imprisonment. Barnes’s Second Amended Original Petition was the live pleading at
the time the Final Summary Judgment was signed by the trial court, and therein,
Barnes omits any claim for false imprisonment. Barnes abandoned this cause of
action before the trial court rendered its judgment. And, that claim was no longer at
issue when the trial court granted the summary judgment. Tex. R. Civ. P. 65.
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Because that claim was abandoned by Barnes in the trial court, we need not
determine whether it was properly adjudicated by the trial court.
2. Intentional Infliction of Emotional Distress
To prevail on his claim for intentional infliction of emotional distress, Barnes
must prove that Walsh acted intentionally or recklessly; that Walsh’s conduct was
extreme and outrageous; that Walsh’s actions caused Barnes emotional distress; and
that Barnes’s emotional distress was severe. See Kroger Tex. Ltd. P’ship v. Suberu,
216 S.W.3d 788, 796 (Tex. 2006).
However, intentional infliction of emotional distress has been called a “gap-
filler” tort accepted in those “rare instances” where the victim has “no other
recognized theory of redress.” See Hoffman-La Roche v. Zeltwanger, 144 S.W.3d
438, 447 (Tex. 2004) (citing Standard Fruit and Vegetable Co. v. Johnson, 985
S.W.2d 62, 68 (Tex. 1998)). See also Finley v. May, No. 07-17-00233-CV, 2017
Tex. App. LEXIS 11036 (Tex. App. Amarillo Nov. 28, 2017), reh’g denied, No. 07-
17-00233-CV, 2017 Tex. App. LEXIS 12103 (Tex. App. Amarillo Dec. 28, 2017)
where the Seventh Court of Appeals explained that the gravamen of a father’s
complaint against a mother for alienation of his children implicated the same course
of conduct sought to be redressed via Tex. Fam. Code Ann. § 42.002, that being
one’s interference with a parent’s possessory rights; therefore, a claim for intentional
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infliction of emotional distress was not available. Finley, 2017 Tex. App. LEXIS
11036, at *7-8.
The gravamen of Barnes’s complaint is that Walsh aided or assisted Svetlana
in violating his rights to possession of the children. Therefore, his claims for
intentional infliction of emotional distress cannot stand on their own and summary
judgment was proper and is affirmed.
As to the Barnes children, Barnes presented no evidence of severe emotional
distress experienced by the children in response to the motion for summary
judgment. Therefore, as to the claims for intentional infliction of emotional distress,
brought on behalf of the Barnes children, the summary judgment is affirmed.
3. Interference with a Possessory Right
Chapter 42 of the Texas Family Code imposes civil liability for interfering
with a possessory right, or for aiding or assisting such interference. Tex. Fam. Code
Ann. §§ 42.002, 42.003. In this case, Barnes has not alleged that Walsh, himself,
interfered with Barnes’s possessory right to the children, but that Walsh assisted
Svetlana in her interference. Therefore, the relevant inquiry is whether either
subsection of § 42.003(b) of the Texas Family Code applies under the facts of this
case. Tex. Fam. Code Ann. § 42.003(b).
If Walsh had reasonable cause to believe that 1) the Barnes children were the
subject of an order and that 2) his actions were likely to violate the order, he may be
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held liable under § 42.003(a) and (b)(2) of the Family Code. Barnes provided more
than a scintilla of evidence that established a genuine issue of material fact on the
initial prong of § 42.003(b)(2) by showing that Walsh was generally aware of the
possession order regarding the children. There is, however, no direct evidence that
Walsh had reasonable cause to believe that his actions of taking Svetlana and the
children to the airport for a vacation would likely violate the order because he
testified that he thought Svetlana was only going on vacation. See Bos v. Smith, 556
S.W.3d 293, 302 (Tex. 2018). If that were the extent of Walsh’s actions, under Bos,
summary judgment might be proper on this cause of action. Id.However, the summary judgment evidence presented here also shows that
after Svetlana had flown the children to Russia, and after Walsh had seen her
“Facebook post” that she did not intend to bring the children back, Walsh assisted
Svetlana in liquidating some of her assets. Barnes alleged that Walsh knew or
reasonably should have known that when Svetlana asked him to assist her in selling
her home, her cars, depositing the sale proceeds in her bank account, and disposing
of the family pets, he would be aiding or assisting further interference with the
possession provisions of the court order because he was assisting Svetlana to remain
in the foreign country with the children, thereby depriving Barnes of his possessory
rights to his children. The summary judgment evidence showed that after Walsh
learned of Svetlana’s plan to remain in Russia with the children, Svetlana
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communicated with Walsh through “a couple hundred” emails and Walsh assisted
Svetlana in selling her cars and in readying her home to be sold or rented, as well as
taking one of her pets to a shelter. There remains an issue to be determined by the
factfinder as to whether Svetlana required the money or proceeds from the sale of
the assets to remain in Russia. There was no direct evidence that Walsh intentionally
interfered with Barnes’s possession of the children. That said, Barnes contends that
he presented more than a scintilla of evidence that created a genuine issue of material
fact as to whether Walsh aided or assisted Svetlana in retaining possession of
Barnes’s children and interfering with Barnes’s possessory rights in and to his
children. See generally Lozano v. Lozano, 52 S.W.3d 141, 143-44 (Tex. 2001)
(evidence that defendant aided or assisted in the taking, retaining, or concealing of
another’s child in violation of another’s possessory rights to the child by providing
financial assistance after the fact may be sufficient to impose civil liability under
chapter 42); see also Weirich v. Weirich, 833 S.W.2d 942, 943-45 (Tex. 1992) (in
which the plaintiff-mother obtained a temporary restraining order precluding her
husband from interfering with her custody, but he abducted their two children three
days later and his mother supplied money and materials to assist him). We agree.
And we conclude that Barnes met his burden and presented more than a scintilla of
evidence to create a genuine issue of material fact on the cause of action he stated
for civil liability under chapter 42 of the Texas Family Code, § 42.003(b).
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Next, we examine the traditional motion for summary judgment. To prevail
on a traditional motion for summary judgment, a movant must establish that no
genuine issue of material fact exists so that the movant is entitled to judgment as a
matter of law. Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc.
v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). “In reviewing the summary judgment,
we must indulge every reasonable inference in favor of the non-movant and resolve
any doubts in [her] favor.” Grace, 227 S.W.3d at 297. “We consider all grounds on
which the trial court ruled that are preserved for review and that are necessary for
disposition of the appeal ....” Id. (quoting Cates, 927 S.W.2d at 626)). Having
reviewed the evidence submitted by Walsh, in support of his traditional motion for
summary judgment, and the evidence submitted by Barnes in response, we find that
there are genuine issues of material fact that preclude the granting of a traditional
summary judgment.
To prevail on his motion for summary judgment, Walsh was required to show
there was no genuine issue of material fact and he was entitled to summary judgment
as a matter of law. In his motion for summary judgment Walsh alleged that there is
no genuine issue of a material fact that he violated the Family Code provision at
issue because “[t]he summary judgment evidence establishes that WALSH never
had possession of the Barnes children, and that he had no knowledge of BARNES’
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ex-wife’s plan to take them out of the United States[,]” and [t]here is no evidence of
interference with a possessory right.”
The elements of a claim for interference with possessory rights under
42.003(b) require that Barnes establish Walsh had either “actual notice of the
existence and contents of the order[]” or “had reasonable cause to believe that the
child[ren] w[ere] the subject of an order and that the person’s actions were likely to
violate the order.” See Tex. Fam. Code § 42.003(b)(1), (2).
In his deposition Walsh admitted he attended the trial, and he was aware there
was an existing possession order. Walsh had been present at exchanges of the
children between Svetlana and Barnes in the past under the possession order. Barnes
contends he created a genuine issue of material fact as to whether Walsh knew when
he drove Svetlana to the airport that Svetlana intended to interfere with the
possession order by not returning the children for Barnes’s period of possession.
Additionally, Barnes argues that Walsh’s actions in assisting Svetlana to sell her
automobiles and her home which occurred after March 29, 2019, when Walsh admits
he saw a Facebook post indicating Svetlana did not intend to return the children
which sufficiently established a genuine issue of a material fact that Walsh violated
section 42.003(b)(2) of the Family Code. We agree that Barnes has created a genuine
issue of material fact on this claim. We reverse the summary judgment as to Barnes’s
claim against Walsh under Chapter 42.003(b)(2).
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4. The One Satisfaction Rule
The relevant Family Code provision provides for joint and several liability for
those who aid and assist a parent in violating another’s possessory rights. To the
extent the trial court could have based its summary judgment on Walsh’s one
satisfaction argument, we find that the trial court erred because the one satisfaction
rule is an affirmative defense that Walsh did not plead and prove. Matthews v. P.D.
Sohn, No. 13-12-00302-CV, 2013 WL 2949562, *2 n.4 (Tex. App.—Corpus Christi-
Edinburg June 13, 2013, no pet.). In order to obtain a summary judgment on the
basis of the one satisfaction rule, Walsh was required to plead and prove all elements
of the rule. Id. *2-3.
For purposes of the one satisfaction rule, it is crucial to distinguish between
obtaining a judgment and obtaining satisfaction of that judgment. Daryapayma v.
Park, No. 02-15-00159-CV, 2016 WL 6519117, *3 (Tex. App.—Fort Worth Nov.
3, 2016, no pet.) (mem. op.). Nowhere has Walsh established that Barnes has
collected any amounts to satisfy his judgment against Svetlana on the judgment
against her; in the absence of such proof, the one satisfaction rule does not apply to
the case before us, and traditional summary judgment on that basis was improper
and must be reversed.
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5. Attorney’s Fees
Walsh brought his counterclaim for attorney’s fees pursuant to § 42.009 of the
Texas Family Code. Because we reverse the trial court’s ruling on Barnes’s claim
under § 42.003 of the Texas Family Code, we also reverse the trial court’s award for
attorney’s fees.
Conclusion
In conclusion, we find the false imprisonment claim was abandoned in the
trial court, and we conclude the trial court correctly granted summary judgment on
the intentional infliction of emotional distress claims. We therefore affirm that part
of the trial court’s judgment that Barnes take nothing on his false imprisonment
claim and his claims, individually, and on behalf of the minor children for intentional
infliction of emotional distress. That said, because Barnes established a genuine
issue of material fact as to whether Walsh is jointly and severally liable under 42.003
of the Family Code for interfering with Barnes’s possessory rights to the children,
we reverse the trial court’s Final Summary Judgment on the claims of interference
with possessory rights under the Family Code, and we remand that matter to the trial
court. Next, because Walsh failed to meet his burden in his motion for summary
judgment to show that the “one satisfaction rule” applies in this case, the judgment
is reversed as to that portion of the judgment finding that Barnes’s claims have
already been satisfied. Finally, because we have found the trial court erred in
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awarding a summary judgment to Walsh on Barnes’s claims brought pursuant to §
42.003 of the Texas Family Code, we also reverse the trial court’s Final Summary
Judgment award of attorney’s fees to Walsh, and we remand Walsh’s counterclaim
and request for attorney’s fees to the trial court.
AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.
________________________________
JAY WRIGHT
Justice
Submitted on April 8, 2022
Opinion Delivered March 9, 2023
Before Golemon, C.J., Johnson and Wright, JJ.
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