Bernard Buecker, Administrator of the Estate of Christine Wesner Standifer v. Joseph C. Roell ( 2009 )

NUMBER 13-07-00515-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
BERNARD BUECKER, ADMINISTRATOR OF THE
ESTATE OF CHRISTINE WESNER STANDIFER, Appellant,
v.
JOSEPH C. ROELL, ET AL., Appellees.
On appeal from the 156th District Court
of Live Oak County, Texas.
MEMORANDUM OPINION
Before Justices Yañez, Benavides, and Vela
Memorandum Opinion by Justice Yañez
By various sub- issues, appellant Bernard Buecker contends the trial court abused
its discretion in imposing sanctions against him and in favor of appellee, Joseph C. Roell.
Because we conclude the trial court abused its discretion in imposing the sanctions, we
reverse the sanctions orders.
Background1
Buecker is an attorney, and Roell is a former physician.2 On March 2, 2000, Roell’s
“close personal friend” and patient, Christine Wesner Standifer, died.3 Several days later,
Roell asserted to a court that Standifer had confided her wishes to him regarding the
disposition of her estate, and that she had a will naming him executor of her estate. Roell
requested, and was granted, permission to search Standifer’s home for the will. On June
27, 2000, Roell filed an application to probate Standifer’s will, which named him as her
personal representative. The will bequeathed: (1) Standifer’s real estate and personal
property to Roell; (2) her jewelry (“except that given to [her] by [Roell]”) to Sandra
Gilkerson; (3) $10,000 to Mary Sanders; and (4) $10.00 each to her stepbrother, Michael
Gollmer, and her two stepsons.
On August 16, 2000, Buecker, as counsel for Gollmer, filed a plea in intervention
challenging Roell’s designation as executor.4 On May 3, 2001, Buecker filed (on Gollmer’s
behalf) an amended plea in intervention, stating that Roell should not be named as
executor because he was being sued by the Texas Medical Board for causing Standifer’s
death by over-prescribing drugs. On June 28, 2001, the court appointed William L.
Hardwick as temporary administrator of Standifer’s estate.
1
W e rely prim arily on appellant’s statem ent of facts. See T EX . R. A PP . P. 38.1(g) (providing that an
appellate court will accept facts as stated in appellant’s brief as true unless contradicted by another party).
Here, Roell has filed a four-page pro se “Reply” to appellant’s brief, which includes several paragraphs
entitled, “Facts as I See Them .” However, Roell’s “facts” prim arily challenge Buecker’s objectivity and the
validity of the findings of the Texas State Board of Medical Exam iners, which led to the Board’s revocation
of Roell’s license to practice m edicine.
2
Roell’s license to practice m edicine was revoked on August 16, 2002.
3
Standifer was Roell’s patient from approxim ately 1993 until her death in March 2000.
4
The August 16, 2000 plea in intervention is not included in the record before us.
2
On August 5, 2001, the Texas State Board of Medical Examiners filed its Second
Amended Complaint against Roell, alleging multiple violations of the Medical Practice Act,5
including allegations that Roell “violat[ed] the standard of care” by unsafely allowing
Standifer to self-administer intravenous narcotics and that Standifer “died of a drug
overdose.” Buecker asserts that on February 28, 2002, he sent a “notice-of-claim” for
medical malpractice letter to Roell, with copies to Roell’s counsel and Hardwick, the
temporary administrator.6
On August 16, 2002, the Texas State Board of Medical Examiners issued its final
order, by which it revoked Roell’s license to practice medicine. The final order consists of
twenty-six pages of findings of fact and conclusions of law, which included findings that
Roell treated Standifer “with strong, addictive pain medications without adequate medical
justification” and that his “long-term treatment of [her] with injectable narcotics caused
injection site abscesses [sic].” Buecker received a copy of the Board’s order in late
September 2002. In late December 2002 , Hardwick resigned as temporary administrator
of the estate.
In March 2003, Buecker (on Gollmer’s behalf) filed a handwriting analysis report,
which concluded that Standifer’s purported signature on the will offered for probate by
Roell was not genuine.7 The court appointed Mark Eggert as the second temporary
5
See T EX . O C C . C OD E A N N . §§ 155.001-167.202 (Vernon 2004 & Supp. 2009).
6
See T EX . C IV . P RAC . & R EM . C OD E A N N . § 74.051 (Vernon 2005). Buecker subm itted a copy of the
letter as a “Supplem ent” to his “Appendix.” However, docum ents that appear solely in the appendix of a brief
are not part of the record and are generally not considered on appeal. See Till v. Thomas, 10 S.W .3d 730,
733-34 (Tex. App.–Houston [1st Dist.] 1999, no pet.). Thus, we do not consider the letter on appeal.
7
The handwriting analysis report, which is included in the record, is dated April 2, 2001. No
explanation is provided as to why it was not presented to the court until alm ost two years later.
3
administrator of the estate. On May 16, 2003, the court appointed Buecker as the third
temporary administrator, an appointment which became effective on July 17, 2003, upon
the posting of a $10,000.00 bond.
On August 28, 2003, Buecker, as administrator of Standifer’s estate, filed a medical
negligence claim against Roell. The petition asserted two “exceptions” to the statute of
limitations: (1) that Roell’s malpractice was not discovered within the statutory period; and
(2) that Buecker became aware of Roell’s negligence pursuant to the State Board of
Medical Examiners’ report, but that he lacked the capacity to file suit until he (Buecker) was
appointed administrator of Standifer’s estate.
On February 9, 2004, Roell filed a traditional motion for summary judgment, arguing
that Buecker’s suit was time-barred by the two-year statute of limitations.8 In his motion,
Roell argued that Buecker had actual knowledge of the alleged malpractice by May 3,
2001, if not earlier—well within the statutory period. He also argued that Buecker had the
capacity “to insist that this malpractice lawsuit be brought within the statutory period.”
On April 14, 2004, Buecker filed a response to Roell’s motion. In the response,
Buecker asserted that he was not a party entitled to sue under section 71.004 of the civil
practice and remedies code9 and that he had no standing to sue until after his appointment
as administrator in July 2003.10 Buecker’s response also asserted causes of action for
fraud and breach of fiduciary duty, which carry a four-year statute of limitations.
8
See T EX . C IV . P RAC . & R EM . C OD E A N N . § 74.251 (Vernon 2005).
9
See id. § 71.004 (Vernon 2008) (providing for wrongful death action accruing to surviving spouse,
children, and parents of a deceased for their own dam ages suffered as a result of the death of the decedent).
10
See id. § 71.021 (providing for a survival of cause of action, by which a decedent m ay have sought
recovery for personal injuries, pain and suffering, and other dam ages suffered prior to his or her death).
4
On April 19, 2004, Roell filed a brief and reply to Buecker’s response, in which he
argued that because Buecker failed to file an expert report as required by the medical
liability statute, he was entitled to (1) dismissal of the health care liability claim against him,
and (2) sanctions consisting of his attorneys’ fees and costs in an amount of $7,500.00.11
On June 18, 2004, the trial court granted Roell’s motion for summary judgment as to
Buecker’s medical malpractice claim on the basis of limitations.
On August 13, 2004, Roell filed a motion for attorneys’ fees and costs, again arguing
he was entitled to such fees and costs under the medical liability statute. The motion
requested $18,500 in attorneys’ fees and $508.15 in expenses and interest. Attached to
the motion were thirteen pages detailing over 123 hours in legal services rendered to Roell.
On December 16, 2005, Buecker filed a second amended petition, in which he
added Nancy McDonald as a defendant, and asserted a claim for conspiracy to commit
fraud.12 On February 8, 2007, Buecker (1) filed a third amended petition, adding a claim
for conversion,13 and (2) non-suited the claims against McDonald.14 On February 12, 2007,
Buecker filed a motion for non-suit of Roell, without prejudice.15
On February 16, 2007, the trial court held a hearing on Roell’s pending motion for
11
See id. § 74.351(b) (Vernon Supp. 2009).
12
On April 21, 2003, Nancy McDonald, a nurse form erly em ployed by Roell, subm itted a letter to Mark
Eggert, then adm inistrator of Standifer’s estate, requesting paym ent in the am ount of $32,611.50 in storage
fees for the storage of two boats and an autom obile that belonged to the estate. Buecker contends that
although he had no authority to do so, Roell ordered the boats and vehicle stored on property that he owned,
then claim ed to have paid “storage fees,” and conspired with McDonald to obtain reim bursem ent from the
estate for paym ent of such fees.
13
Buecker alleged that the defendants converted the two boats and vehicle for their own use.
14
The court granted the estate’s non-suit of claim s against McDonald on February 16, 2007.
15
The court granted the m otion for non-suit as to Roell on February 12, 2007.
5
attorneys’ fees, even though Roell had been non-suited.16 On the same day as the
hearing, Roell filed a motion for sanctions, contending that Buecker’s pleadings, motions,
and other documents were filed in violation of rule 13 of the Texas Rules of Civil Procedure
and chapter 10 of the civil practice and remedies code.17 At the February 16 hearing,
Roell’s counsel presented a statement of attorneys’ fees incurred by Roell’s prior counsel.18
Roell testified that he had not paid the full amount reflected on the statement, and did not
recall what amount he had paid. Buecker’s attorney noted that in 2001, prior to filing suit
in 2003, Buecker had filed a copy of the State Board of Medical Examiners’ Second
Amended Complaint and its Final Order with the probate court. Roell’s counsel argued that
he was entitled to $18,500 in attorneys’ fees plus expenses because of Buecker’s failure
to file an expert report under the medical liability statute. Buecker’s counsel argued that
(1) the statute was not applicable because Roell was not a physician at the time he was
sued, and (2) that the Board of Medical Examiners’ final report satisfied the requirement
for an expert report. After advising the parties that he “[couldn’t] tell which case was
handled more miserably, the case on behalf of the petitioner or the case on behalf of the
defendant,” the trial court awarded $5,000 in attorneys’ fees plus filing fees to Roell solely
on the issue of Buecker’s failure to produce an expert report in compliance with the
medical malpractice statute.19
16
In his August 13, 2004 m otion for attorneys’ fees, Roell’s prior counsel requested $18,500 in
attorneys’ fees and $508.15 in expenses.
17
See T EX . C IV . P RAC . & R EM . C OD E A N N . § 10.001-.004 (Vernon 2002); T EX . R. C IV . P. 13.
18
At the tim e of the hearing, Roell’s prior counsel, R. W . R odriguez, was in jail. The tim e sheet
reflected fees up to around the tim e sum m ary judgm ent was granted in 2004.
19
The trial court’s order ordering Buecker to pay Roell $5,000 in attorneys’ fees is dated May 23,
2007.
6
On May 23, 2007, Roell filed a “Motion for New Trial on Sanctions,” in which he
argued that the trial court erred in refusing to consider his earlier-filed motions for
sanctions. On July 27, 2007, the trial court granted a new trial on the issue of sanctions.
On August 23, 2007, Buecker filed a notice of appeal, prior to the new trial hearing on
Roell’s motion for sanctions.
On October 27, 2007, the trial court held a hearing on Roell’s February 16, 2007
motion for sanctions.20 At the hearing, the following persons testified: Buecker, Roell,
R.W. Rodriguez (Roell’s prior counsel), and Charles R. Manning (Roell’s then-present
counsel).
Rodriguez testified that he represented Roell in the medical malpractice suit filed by
Buecker. Rodriguez testified that after researching the issue, he told Buecker in December
2003 that the medical malpractice statute had a strict two-year statute of limitations, with
no exception for the discovery rule. In Rodriguez’s opinion, Buecker added the common-
law claims because he knew the trial court likely would grant summary judgment in Roell’s
favor on the medical malpractice claims on the issue of limitations. Rodriguez did not
investigate the fraud and breach of fiduciary duty claims against Roell because the
“easiest” way to defend against those claims was to rely on Buecker’s failure to respond
to discovery requests, including requests for admissions. Rodriguez did not investigate
Buecker’s conversion claim or Roell’s relationship with McDonald because he was relying
on the deemed admissions. For the same reason, he did not investigate the claim that
there was a lien against the estate for $32,611. Rodriguez testified that his attorneys’ fees
20
W e note that the Honorable Joel B. Johnson presided over the February 16, 2007 hearing.
However, the Honorable Ronald M. Yeager, Senior Retired Judge, presided over the O ctober 27, 2007
hearing.
7
through June 2004 totaled about $18,500, and that approximately sixty to seventy percent
of that amount could have been avoided had Buecker accepted that his suit was barred
by limitations.21
On cross-examination, Rodriguez admitted that he did not segregate his fees
between the medical malpractice claims and the common-law claims. Rodriguez testified
that he did not pay too much attention to the report that Standifer’s signature on the will
was not genuine “because again of the admissions.”
Roell testified that Standifer had not told him that she had a will or who her executor
was. Roell did not know where the will was prepared; he knew that the two witnesses to
the will were his patients, but he had not talked to them about it. Roell testified that he was
friends with Standifer and her deceased husband. According to Roell, after Standifer died,
her bank called and notified him that he was authorized to write checks on her bank
account. The bank sent him a check for around $800.00, which was the balance in the
account. Roell testified that because the estate’s two boats and vehicle were becoming
overgrown with weeds and were being “vandalized,” he made arrangements to have those
items stored by Robert Buerger. Roell testified that he did not recall any specifics about
the storage arrangements. Roell also did not recall whether he had ever requested
reimbursement for the $32,611.50 in storage fees. Roell testified that on the day of the
February 16, 2007 hearing, Buecker told him that he would “follow [Roell] through the gates
of hell” to seek justice for Standifer.
On cross-examination, Roell was shown the motion he submitted to search
21
Rodriguez was later recalled as a witness and testified that he did not know what his fees were from
July 2004 through Decem ber 2004. He testified that from January 2005 through August 2006, his fees were
approxim ately $15,560.00.
8
Standifer’s house for her will. Roell testified that did not recall the document. Roell
conceded that Standifer’s will awarded him all of her real estate, but stated that “[Standifer]
gave it to me to dispose of.” Roell also admitted that the will awards Standifer’s jewelry to
Sandra Gilkerson, except for the jewelry that he had given to Standifer. Roell did not recall
anything about the patients who had witnessed the will. Roell also did not recall anything
about how he was supposed to dispose of Standifer’s property. According to Roell, he
couldn’t “recall hardly anything about [the will].”
Manning testified that at his hourly rate of $120.00, his attorneys’ fees for working
on the sanctions issue amounted to $1,150.00, plus his time spent at the hearing, for a
total of around $1,500.00.
Buecker testified that when he filed the medical malpractice action, he believed that
there may be two applicable exceptions to the statute of limitations: (1) the one-year delay
in filing suit if an executor administrator is appointed and (2) the date-of-discovery
exception. Buecker said he learned of the revocation of Roell’s license (and the Board’s
findings regarding Roell’s treatment of Standifer) in August 2002. Buecker testified that
the filing of the medical malpractice claim against Roell was based on the Board’s findings.
Buecker testified that before he was appointed administrator, he tried to get the existing
administrator of the estate to file the medical negligence action. As soon as Buecker was
named administrator, he filed the medical negligence action against Roell. With regard to
the basis for the common-law claims, Buecker testified that he knew (1) on the same day
that $52,000 was deposited into Standifer’s bank account, Roell became the beneficiary
of the account and a joint signatory on the account; and (2) the same day that $52,000 was
deposited, there was a $5,000 cash withdrawal on the account. Buecker testified that after
9
he became administrator, he received a bill, submitted by Nancy McDonald, for payment
of $32,611.50 in “storage fees” for storing the two boats and automobile belonging to the
estate.22 According to Buecker, Roell denied owning the property where the speed boat
belonging to the estate was stored, but Buecker later learned that Roell did own the
property. Buecker testified that the fraud claim was based in part on the request to the
estate for reimbursement of the “storage fees.” The breach of fiduciary duty claim was
based on Roell’s doctor/patient relationship with Standifer and the fact that Roell obtained
an interest in her bank account upon her death. The claims against Nancy McDonald were
based on the request for reimbursement of the storage fees. The claims for conversion
were based on Roell’s taking the two boats and automobile without authorization.
Buecker testified that he interviewed the witnesses to Standifer’s will. One of the
witnesses, interviewed at 10:00 in the morning, told Buecker the will was signed at the
clinic; the witness kept asking Buecker for beer. Buecker located the other witness, but
was unable to talk to him because he was “shaking” and “looked like he was having a
seizure withdrawal or something.” Buecker testified that after he submitted the expert
report stating that Standifer’s signature on the will was non-genuine, Roell withdrew his
application to probate the will. Buecker also testified that he learned from the Beeville
Police Department that Roell was known in the community as “Dr. Feel Good.” Buecker
testified that he non-suited the claims after he “got the [estate’s] property back.”
At the conclusion of the hearing, the trial court gave the parties an opportunity to
submit any additional arguments. On February 13, 2008, the trial judge that presided over
22
The storage receipts reflect that the estate’s two boats and autom obile were stored within about
thirty-five days after Standifer’s death.
10
the October 27, 2007 hearing held a hearing on the proposed judgment. At the hearing,
the trial court explained how it arrived at its order that Buecker should pay Roell $30,
841.00 as sanctions for expenses and attorneys’ fees, plus post-judgment interest. The
trial court explained that (1) it included the $5,000 awarded on February 16, 2007 in the
$30,841.00; and (2) it awarded 60% of $18, 500.00, which is $11,100.00, plus $15,560.00,
plus $4,181.00, for a total of $30,841.00.
On March 11, 2008, the trial court signed findings of fact and conclusions of law.
Generally, the findings and conclusions included the following: (1) Buecker failed to
establish why his medical malpractice claim could not have been filed within the two-year
statute of limitations; (2) Buecker’s common-law claims were filed outside the applicable
statutes of limitations; (3) Buecker’s original and amended petitions violated rule 13 and
section 10 of the civil practice and remedies code, in that the claims were brought in bad
faith and to harass Roell; and (4) the award of $30,841.00 is no more than necessary to
satisfy the purpose of rule 215.2 of the rules of civil procedure.
Standard of Review and Applicable Law
A trial court's imposition of sanctions is reviewed for abuse of discretion.23 An
assessment of sanctions will be reversed only if the trial court acted without reference to
any guiding rules and principles, such that its ruling was arbitrary or unreasonable. 24 The
trial court does not abuse its discretion if it bases its decision on conflicting evidence and
some evidence supports its decision.25 However, a trial court abuses its discretion when
23
Unifund CCR Partners v. Villa, No. 08-1026, 53 Tex. Sup. Ct. J. 57, 2009 Tex. LEXIS 823, at *11
(Tex. Oct. 23, 2009) (citing Low v. Henry, 221 S.W .3d 609, 614 (Tex. 2007)).
24
Id. at *11-12.
25
Id. at *12.
11
its decision is contrary to the only permissible view of probative, properly-admitted
evidence.26 Legal sufficiency of the evidence to support the trial court’s finding is a factor
in deciding whether the trial court abused its discretion.24
We examine the entire record and will overturn a trial court’s discretionary ruling only
if the ruling is based on an erroneous view of the law or a clearly erroneous assessment
of the evidence.25 In reviewing sanctions orders, the appellate courts are not bound by a
trial court's findings of fact and conclusions of law; rather, appellate courts must
independently review the entire record to determine whether the trial court abused its
discretion.26 Generally, courts presume that pleadings and other papers are filed in good
faith.27 The party seeking sanctions bears the burden of overcoming this presumption of
good faith.28
If a sanction order refers to a specific rule, either by citing the rule, tracking its
language, or both, we determine whether the sanction is appropriate under that particular
rule.29 Here, the trial court’s sanction order specified that Buecker failed to comply with the
requirements of rule 13 and chapter 10 of the civil practice and remedies code.28
26
Id.
24
Armstrong v. Collin Co. Bail Bond Bd., 233 S.W .3d 57, 62 (Tex. App.–Dallas 2007, no pet.).
25
Houtex Ready Mix Concrete & Materials v. Eagle Constr. & Envtl .Servs., 226 S.W .3d 514, 522
(Tex. App.–Houston [1st Dist.] 2006, no pet.).
26
Am. Flood Research, Inc. v. Jones, 192 S.W .3d 581, 583 (Tex. 2006).
27
Low, 221 S.W .3d at 614.
28
Id.
29
Houtex, 226 S.W .3d at 521.
28
See T EX . C IV . P RAC . & R EM . C OD E A N N . § 10.001; T EX . R. C IV . P. 13.
12
Texas Rule of Civil Procedure 13 authorizes imposition of sanctions against an
attorney, a represented party, or both, who file pleadings that are (1) groundless and
brought in bad faith, or (2) groundless and brought to harass.29 When determining whether
Rule 13 sanctions are proper, the trial court must examine the facts available to the litigant
and the circumstances existing when the litigant filed the pleading.30 Rule 13 requires
sanctions based on the acts or omissions of the represented party or counsel and not
merely on the legal merit of the pleading.31 The trial court must provide notice and hold an
evidentiary hearing “to make the necessary factual determinations about the motives and
credibility of the person signing the groundless petition.”32 “Groundless” means no basis
in law or fact and not warranted by good faith argument for the extension, modification, or
reversal of existing law.33 Bad faith is not simply bad judgment or negligence; rather, it is
the conscious doing of a wrong for dishonest, discriminatory, or malicious purposes.32
Improper motive is an essential element of bad faith.32 Harassment means that the
pleading was intended to annoy, alarm, and abuse another person.33
Section 10.004 provides “[a] court that determines that a person has signed a
29
See T EX . R. C IV . P. 13; Parker v. W alton, 233 S.W .3d 535, 539 (Tex. App.–Houston [14th Dist.]
2007, no pet.).
30
W alton, 233 S.W .3d at 539.
31
Id.
32
Id. (citing Aldine Indep. Sch. Dist. v. Baty, 946 S.W .2d 851, 852 (Tex. App.–Houston [14th Dist.]
1997, no writ)).
33
See T EX . R. C IV . P. 13; W alton, 233 S.W .3d at 539.
32
W alton, 233 S.W .3d at 539.
32
Id.
33
Id.
13
pleading or motion in violation of Section 10.001 may impose a sanction on the person, a
party represented by the person, or both.”34 Section 10.001 states that a person signing
a motion or pleading certifies that “to the signatory's best knowledge, information, and
belief, formed after reasonable inquiry:” (1) the motion or pleading is not presented for an
improper purpose, (2) each legal contention is warranted, (3) each factual contention is
likely to have evidentiary support, and (4) each denial of a factual contention is warranted.35
To prevail under Chapter 10, there must be little or no basis for the claims, no
grounds for legal arguments, misrepresentation of law or facts, or legal action that is
sought in bad faith.36 “Under Section 10.001, the signer of a pleading or motion certifies
that each claim, each allegation, and each denial is based on the signatory’s best
knowledge, information, and belief, formed after reasonable inquiry.”37 “The statute
dictates that each claim and each allegation be individually evaluated for support.”38
Discussion
The trial court’s conclusions of law included, in pertinent part, the following: (1) that
the signing of Buecker’s original and amended petitions, asserting that Roell committed
medical malpractice, violated rule 13 and section 10.001, in that the assertions were made
in bad faith and to harass Roell; (2) that Buecker’s claim that the malpractice action was
not barred by limitations was brought in bad faith and for harassment, and there was “no
34
T EX . C IV . P RAC . & R EM . C OD E A N N . § 10.004 .
35
Id. § 10.001.
36
Loeffler v. Lytle Indep. Sch. Dist., 211 S.W .3d 331, 348 (Tex. App.–San Antonio 2006, pet. denied).
37
Low, 221 S.W .3d at 615 (em phasis in original).
38
Id.
14
basis in existing law” for his contentions regarding limitations; (3) that Buecker’s claims that
Roell committed fraud and breach of fiduciary duty were brought in bad faith and to harass
Roell, and that the claims lacked factual grounds; (4) that Buecker’s allegations that the
fraud and breach of fiduciary duty claims could not have been discovered within the four-
year statutory period were brought in bad faith and without any basis in existing law; and
(5) Buecker’s claims that Roell conspired with Nancy McDonald to defraud the estate and
converted estate property were brought in bad faith and for harassment and “lacked factual
grounds.” The trial court also concluded that Buecker’s legal arguments asserted at the
sanctions hearing (1) did “not legally establish that at the time he signed and filed the
pleadings,” that to the best of his knowledge, information and belief, formed after
reasonable inquiry, the pleadings “were not groundless and brought in bad faith or
groundless and brought for the purpose of harassment;” and (2) lacked legal merit.
We disagree. As the party moving for sanctions, Roell was required to prove
Buecker’s subjective state of mind.39 Here, there was no evidence that Buecker had any
improper purpose of harassment or improper motive. At the October 27, 2007, hearing,
Buecker’s counsel questioned Roell’s former counsel, Rodriguez:
Q [Buecker’s counsel]: Did Mr. Buecker indicate to you that he was
personally upset with Dr. Roell or that he was bringing this for any purpose
other than for a legal determination of the applicable limitations?
A [Rodriguez]: Not at that juncture, no.
39
See R. M. Dudley Constr. Co. v. Dawson, 258 S.W .3d 694, 710 (Tex. App.–W aco 2008, pet. filed)
(citing Brozynski v. Kerney, No. 10-05-300-CV, 2006 Tex. App. LEXIS 6817, at *12-13 (Tex. App.–W aco Aug.
2, 2006, pet. denied) (“The party m oving for sanctions m ust prove the pleading party's subjective state of
m ind: bad faith does not exist when a party exercises bad judgm ent or negligence; under Rule 13, bad faith
exists only for the conscious doing of a wrong for dishonest, discrim inatory, or m alicious purposes. Im proper
m otive is an essential elem ent of bad faith for purposes of im posing sanctions for groundless, bad-faith
pleadings.” (internal citations om itted)).
15
Roell gave the following testimony regarding Buecker’s motives:
Well, I got on the elevator, and the question was brought up why is he
[Buecker] doing this and he said basically that the spirit of Christine Standifer
had come from the grave and wanted him to seek justice and to that matter
he would follow me through the gates of hell until this happened.
....
Q [Roell’s counsel]: Okay. Now, Dr. Roell, have you seen any other
indications—or let me ask you what other indications you have seen that
leaves you to think that this action has been maintained and kept going for
so many years to harass you?
A [Roell]: I don’t think—my own personal opinion he did not act in good faith.
At the results of the mediation he wanted $10,000 legal fees—
....
Q: Beyond that you really can’t go into it, but what other evidence do you
have or you think supports your view that he was harassing you?
A: Just continuation of paper after paper[,] allegation after allegation[,] some
of his remarks in court[,] calling me Dr. Feel Good and some of the other
things that he got out of the pleadings of the Texas State Board of Medical
Examiners; [he] just really berated me.
Buecker testified that when he filed the petition for medical negligence, he relied on
the facts in the report of the State Board of Medical Examiners, which found that Roell had
violated the standard of care with regard to several patients, including Standifer. Buecker
stated that he had some “legal questions that were not resolved” in his mind, including
whether any exceptions to the two-year statute of limitations applied.
Buecker gave the following testimony:
Q [Buecker’s counsel]: You have heard Dr. Roell imply that you had an
animus against Dr. Roell and that you had some spiritual connection from
Ms. Standifer, the decedent, and as a result of that you were going to
pursue Dr. Roell from the gates of hell. Is that what he has testified to ?
A [Buecker]: I heard that testimony.
16
Q: And do you recall based upon his testimony today when Dr. Roell said
that you said that?
A: He said I said that at the—when the Court sanctioned me as
administrator for $5,000.
Q: And that was on February 16th of 2007?
A: That is when that hearing was held.
Q: And, in fact, did you tell Dr. Roell those words?
A: I wasn’t here at that hearing.
Q: Okay. So did you have any personal animus against Dr. Roell before
filing the original petition for medical negligence?
A: No.
Q: Or in any of the other pleadings that are alleged as being made subject
to these sanctions ordered, including the April 14th, 2004 response to a
motion for summary judgment?
A: No.
Q: For the April 14th, 2004 pleadings in which you allege fraud and breach
of fiduciary duty?
A: No.
Q: Or the December 16, 2005 pleading joining Nancy McDonald as a
defendant in alleging additional claims regarding estate property?
A: No.
Q: Or the February 6th, 2007 pleading in which there was an amended
petition in which you added a claim of conversion?
A: No.
....
Q: And at the time that you filed your common law claims and that was after
on [sic] April 14th, 2004, December 16th, 2005, February 6th, 2007, when
you filed your claims or amendments to the claims[,] did you have a
reasonable expectation of prevailing when you filed those petitions?
17
A: Yes.
Q: Why is that?
A: The evidence I had garnered.
Q: And then you dismissed the case; is that correct?
A: Yes.
Q: Why is that?
A: I had obtained the return of the property through my lawsuit with Nancy
McDonald. I had established what I needed to establish on the record
regarding Dr. Roell’s involvement in this thing because he testified at a
deposition that he had retrieved the property right after her death with the
authority of Mr. Hardwick and had given it to storage. The fact of the matter
is Mr. Hardwick was not appointed as administrator until 21 months after he
had said he had retrieved the property with the authority of Mr. Hardwick.
I had established the elements that I had looked to establish. I didn’t
have to pursue it anymore when I got the property back. There is no money
in the estate to pay for trials and lawyers to do this thing. I got the property
back. I cut my losses, and I got what the object of the suit was to do. I got
it done.
Q: So you recovered the property of the estate that you were trying to get
recovered from Dr. Roell?
A: Yes.
We conclude that Roell failed to establish Buecker’s bad faith—the conscious doing
of a wrong for dishonest, discriminatory, or malicious purposes.40 Similarly, we find no
evidence of harassment—that the pleadings were intended to annoy, alarm, and abuse
another person.41 We conclude that Roell failed to overcome the presumption that
Buecker’s claims, including the medical malpractice claim and the common-law claims,
40
See W alton, 233 S.W .3d at 540.
41
See id.
18
were filed in good faith by failing to present any evidence that the claims were groundless
and filed in bad faith or to harass.42
We note that the May 23, 2007 order ordering Buecker to pay Roell $5,000 in
attorney’s fees is included in the final order ordering sanctions in the amount of $30,
841.00. At the February 13, 2008 hearing on the entry of judgment, the trial court
admitted, regarding the $5,000, that he did not “know what Judge Johnson used. I don’t
know how he arrived at it. I don’t know if it’s pure sanctions or just an amount of attorneys’
fees.” We also note that at the February 16, 2007 hearing, when Buecker’s counsel
objected that “there is no credible evidence as to amount of attorney’s fees,” the trial court
stated, “Now you pulled out your hammer and hit on a nail.” At the February 13 hearing,
Roell testified that he did not recall what he had actually paid his counsel in attorneys’ fees.
We conclude that based on the record before us, there is insufficient evidence to support
the award of $5,000 in attorneys’ fees awarded in the May 23, 2007 sanctions order.
We sustain Buecker’s first and third sub-issues.43 Because we find these issues
dispositive, we need not address Buecker’s additional issues. We reverse the trial court’s
May 23, 2007 and February 13, 2008 orders imposing sanctions, and render judgment that
Roell take nothing.
____________________
LINDA REYNA YAÑEZ,
Justice
Delivered and filed the
24th day of November, 2009.
42
See id. at 541.
43
By his first sub-issue, Buecker contends the trial court abused its discretion in awarding the May
23, 2007 order of sanctions; by his third sub-issue, Buecker contends the trial court abused its discretion in
awarding the February 13, 2008 order of sanctions for $30,841.00.
19