Mark Lee Newby v. Dianne Marie Uhl ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00466-CV
MARK LEE NEWBY APPELLANT
V.
DIANNE MARIE UHL APPELLEE
----------
FROM THE 324TH DISTRICT COURT OF TARRANT COUNTY
----------
MEMORANDUM OPINION1
----------
I. INTRODUCTION
In what we construe as seven issues, Appellant Mark Lee Newby, pro se,
appeals from a divorce decree dissolving his marriage to Appellee Dianne Marie
Uhl. We will affirm.
1
See Tex. R. App. P. 47.4.
II. BACKGROUND
Newby and Uhl married in 1999. They had one child together, B.N., born
in September 1999. Newby worked as a land developer and a builder. Uhl
worked for a computer company.
Uhl filed for divorce in the summer of 2009. As part of its temporary
orders, the trial court issued a mutual temporary injunction enjoining Newby and
Uhl from selling community or separate property and ordered that all oil and gas
monies or checks received by Newby be delivered to his then-attorney to be
deposited and held in the attorney’s escrow account. Uhl obtained a protective
order against Newby around the same time; the trial court found that family
violence had occurred and was likely to occur in the future, and the court
prohibited Newby from, among other things, communicating with and committing
family violence against Uhl and B.N. Uhl supplemented her original petition to
allege claims against Newby for forgery, fraud, invasion of privacy, and breach of
fiduciary duty.
During the pendency of the divorce, Uhl filed motions to compel and for
sanctions against Newby for his repeated failure to adequately respond to Uhl’s
discovery requests. The associate judge ultimately struck Newby’s pleadings as
a discovery sanction. At the outset of the final bench trial, the trial court stated
that it had reviewed and approved the associate judge’s recommendation
regarding sanctions.
2
Aside from Uhl’s attorney’s testimony about fees, Uhl and Newby were the
only two witnesses who testified at trial.2 Uhl testified that Newby had treated her
cruelly and that their marriage was unendurable. According to Uhl, Newby
wanted to control her “a hundred percent.” For example, he would take her cell
phone, their cars, her car keys, and her work laptop; he would force her to sign
business documents; he would wake her up in the middle of the night, yelling at
her; and he would say ugly things about her other son to her. Uhl testified that
Newby had a problem with hydrocodone; that he committed adultery; that he
would lunge at her and grab her, get in her face, and yell at her; that he dragged
her to the balcony and threatened to throw her off of it on one occasion; and that
he had harassed and threatened to kill her during the course of the divorce. Uhl
also testified about child support, a possession schedule for B.N, and dividing the
community property and debt. Newby’s testimony is largely highlighted by his
evasive answers and his repeated invocation of his Fifth Amendment privilege
against self-incrimination.
The corrected final decree of divorce granted the divorce on the grounds of
adultery and cruel treatment; appointed Uhl sole managing conservator and
Newby possessory conservatory of B.N.; ordered Newby to pay child support to
Uhl; divided the marital estate, including the debt; pierced the corporate veils of
four business entities owned or controlled by Newby, permitting their assets, if
2
Both Uhl and Newby were represented by counsel at trial.
3
any, to be characterized as community property; found that Newby had
committed fraud by nondisclosure against Uhl, had violated Uhl’s privacy, and
had breached his fiduciary duty owed to Uhl; awarded Uhl actual damages of
$100,000 and exemplary damages of $100,000; ordered Newby to pay attorney’s
fees; extended the protective order for an additional two years; and permanently
enjoined Newby from, among other things, threatening and harassing Uhl. The
trial court later amended the protective order to include within its coverage Uhl’s
attorney, the attorney’s law firm, and the attorney’s paralegal.3
III. SANCTIONS
In what we construe as his first issue, Newby argues that the trial court
abused its discretion by striking his pleadings as a discovery sanction and erred
3
The trial court stated the following at the conclusion of the trial:
Mr. Newby, we’ve talked before. I cannot imagine how
anyone could have done any worse [of a] job tha[n] you’ve done in
this divorce. You’ve had five attorneys. All of them I respect. And I
cannot imagine that they had much of an influence on you because
you wouldn’t have done this.
I don’t know how you could have done any worse, as I’ve said.
And that’s not even to mention what may be occurring in the
bankruptcy court or other criminal courts. I’m just talking about the
things you’ve done in this court which led to your- -to the striking of
you[r] pleadings.
You’ve just- -I was trying to think during this trial of anything
that you’ve done right. There’s almost nothing. You’ve left the Court
with no choice.
4
by failing to conduct a full hearing before approving the associate judge’s
sanctions recommendation.
Trial courts have broad discretion to impose discovery sanctions to secure
compliance with discovery rules, to deter other litigants from similar misconduct,
and to punish violators. See Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849
(Tex. 1992). We therefore review a trial court’s imposition of discovery sanctions
for an abuse of discretion. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004).
A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner,
or if it acts without reference to any guiding rules or principles. Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985), cert. denied,
476 U.S. 1159 (1986). In reviewing sanctions orders, we are not bound by a trial
court’s findings of fact and conclusions of law; rather, we must independently
review the entire record to determine whether the trial court abused its discretion.
Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006).
Texas rule of civil procedure 215.2(b) allows a trial court to sanction a
party for failure to comply with a discovery order or request. Tex. R. Civ.
P. 215.2(b). Sanctions that a trial court may impose include an order refusing to
allow the disobedient party to support or oppose designated claims or defenses
and an order striking pleadings or rendering a judgment by default against the
disobedient party. Tex. R. Civ. P. 215.2(b)(4), (5).
In discovery-sanction cases, a trial court’s discretion is limited by the
requirement that the sanctions be just. TransAmerican Natural Gas Corp. v.
5
Powell, 811 S.W.2d 913, 917–19 (Tex. 1991). A sanction is just if a direct
relationship exists between the offensive conduct and the sanctions imposed. Id.
at 917; see Chrysler Corp., 841 S.W.2d at 849. A direct nexus exists when the
sanction is directed against the true offender and is tailored to remedy any
prejudice the discovery abuse caused. TransAmerican, 811 S.W.2d at 917. To
be just, a sanction must also not be excessive. Id. The record must reflect that
the trial court considered the availability of lesser sanctions. Otis Elevator Co. v.
Parmelee, 850 S.W.2d 179, 181 (Tex. 1993). A sanction imposed for discovery
abuse should be no more severe than necessary to satisfy its legitimate
purposes. Cire, 134 S.W.3d at 839.
Here, Uhl filed her first motion to compel discovery and for sanctions
against Newby in October 2009. The parties passed on the hearing on the
motion to compel, but on November 6, 2009, the trial court ordered Newby to
fully and completely answer all discovery previously propounded by Uhl,
including her interrogatories and requests for disclosure and for production of
documents. In February 2010, Uhl filed a second motion to compel discovery
and for sanctions, indicating that Newby had responded to the interrogatories
and request for production but complaining that the interrogatory responses were
“totally incomplete and evasive” and that the production responses were “evasive
and incomplete,” and requesting that sanctions be imposed against Newby.
Approximately five months later, Newby had still not adequately responded to
Uhl’s discovery requests, so on or about July 15, 2010, the trial court ordered
6
Newby to completely respond to Uhl’s interrogatories and to produce all
documents previously requested of him on or before July 29, 2010, and it
sanctioned Newby $1,500 for filing frivolous objections to Uhl’s discovery
requests. Soon after the July 29, 2010 deadline had passed, Uhl filed a third
motion to compel discovery and for sanctions against Newby, indicating that he
had provided additional responses to Uhl’s discovery requests but complaining
that the responses continued to be evasive. The trial court granted Uhl’s motion
and struck Newby’s pleadings as a sanction for his discovery abuse.
The trial court’s decision to strike Newby’s pleadings was just. See
TransAmerican, 811 S.W.2d at 917–19. The record demonstrates that over the
course of between nine months and one year, Uhl was forced to file numerous
motions to compel and for sanctions against Newby because of his failure to
adequately respond to Uhl’s discovery requests. The trial court initially tested
lesser sanctions against Newby, but when they proved to be ineffective, it struck
his pleadings. A direct relationship exists between Newby’s offensive conduct
and the sanction, and the sanction is not excessive. Accordingly, we hold that
the trial court did not abuse its discretion by striking Newby’s pleadings.
Newby contends that the trial court should have conducted a full hearing
as part of its review of the associate judge’s sanctions recommendation, but
nothing in the record shows that he raised this issue in the trial court, nor does
the record contain a written notice appealing the associate judge’s
recommendation and identifying the associate judge’s findings and conclusions
7
to which Newby objected.4 See Tex. R. App. P. 33.1(a); In re E.M., 54 S.W.3d
849, 852 (Tex. App.—Corpus Christi 2001, no pet.) (holding that “to be entitled to
a de novo hearing on appeal of an associate judge’s recommendations to the
referring court, a party must timely file a written notice of appeal containing the
associate judge’s findings and conclusions to which the party objects”). We
overrule Newby’s first issue.
IV. OIL AND GAS INCOME
In what we construe as his second issue, Newby argues that the associate
judge erroneously divested him of his separate property when, near the
beginning of the case and as part of the temporary orders, she ordered that any
oil and gas income received by Newby or one of his businesses be delivered to
his then-attorney to be held in her escrow account. Newby contends that the
action “forced an unfair burden on [him and that he] was forced Pro-Se early in
the case.”5 Newby’s argument is unpersuasive for several reasons. While a suit
for dissolution of a marriage is pending, the family code specifically authorizes
the trial court to “render an appropriate order . . . for the preservation of the
property and protection of the parties as deemed necessary.” See Tex. Fam.
4
Newby does not assert any argument that he was improperly prohibited
from participating in any portion of the final trial on the merits. See Paradigm Oil,
Inc. v. Retamco Operating, Inc., No. 10-0997, 2012 WL 2361725, at *6–7 (Tex.
June 22, 2012) (holding that sanction of precluding party from damages portion
of trial was excessive).
5
Newby does not challenge the divorce decree’s disposition of separate
property.
8
Code Ann. § 6.502(a) (West 2006). The trial court thus had the authority to direct
that the oil and gas income be “preserved” pending the divorce proceedings; the
temporary order did not “divest” Newby of the oil and gas income. Further, even
if the trial court somehow lacked the authority to preserve Newby’s separate
property pending the divorce, which it did not, the record on appeal contains no
transcript of a temporary-orders hearing at which Newby demonstrated that the
oil and gas income was indeed his separate property. Newby could have
challenged the trial court’s temporary order by filing a petition for writ of
mandamus, but he never did. See Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex.
1991) (orig. proceeding) (op. on reh’g); In re Russell, 321 S.W.3d 846, 853 (Tex.
App.—Fort Worth, orig. proceeding [mand. denied]). We overrule Newby’s
second issue.
V. RECUSAL
In what we construe as his third issue, Newby argues that the trial judge
abused his discretion by not recusing himself.6
To recuse a judge, a party must comply with the procedural requirements
prescribed by rule of civil procedure 18a. Rammah v. Abdeljaber, 235 S.W.3d
269, 274 (Tex. App.—Dallas 2007, no pet.). A motion to recuse must be verified
and must not be filed after the tenth day before the date set for trial, unless the
6
The presiding judge of the eighth administrative judicial region denied
Newby’s motion to recuse.
9
movant neither knew nor reasonably should have known “that the ground stated
in the motion existed.” Tex. R. Civ. P. 18a(a)(1), (b)(1)(B)(ii).
Here, not only was Newby’s motion to recuse not verified, he filed it two to
three months after the final trial concluded, and the contents of the motion do not
show that he was unaware that the grounds stated therein did not exist. We hold
that there was no abuse of discretion in the denial of Newby’s defective motion to
recuse, and we overrule his third issue.
VI. DIVISION OF COMMUNITY ESTATE
In what we construe as his fourth issue, Newby argues that the trial court
abused its discretion by disproportionately dividing the community estate in favor
of Uhl.
A trial judge is charged with dividing the community estate in a “just and
right” manner, considering the rights of both parties. Tex. Fam. Code Ann.
§ 7.001 (West 2006); Watson v. Watson, 286 S.W.3d 519, 522 (Tex. App.—Fort
Worth 2009, no pet.). The court has broad discretion in making a just and right
division, and absent a clear abuse of discretion, we will not disturb that division.
Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex. 1985); Boyd v. Boyd, 131 S.W.3d
605, 610 (Tex. App.—Fort Worth 2004, no pet.).
Community property does not have to be divided equally, but the division
must be equitable. Kimsey v. Kimsey, 965 S.W.2d 690, 704 (Tex. App.—El Paso
1998, pet. denied). In determining whether to disproportionately divide the
community estate, the trial court may consider, among other things, a spouse’s
10
dissipation of the community estate, any misuse of community property, and fault
in the breakup of the marriage. Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981);
Vannerson v. Vannerson, 857 S.W.2d 659, 669 (Tex. App.—Houston [1st Dist.]
1993, writ denied). When one spouse not only deprives the other of community
assets but does so with dishonesty and intent to deceive, the trial court may
consider such heightened culpability in its division. Schlueter v. Schlueter, 975
S.W.2d 584, 589–90 (Tex. 1998). A disproportionate division must be supported
by some reasonable basis. Smith v. Smith, 143 S.W.3d 206, 214 (Tex. App.—
Waco 2004, no pet.).
Uhl testified that Newby forged her name to several checks, causing her to
incur approximately $85,000 in tax liability to the IRS; that Newby routinely
transferred ownership of property (including vehicles) between several business
entities “to protect them or something”; that Newby made her execute several
bank notes (including one so that Newby could get $15,000 cash) that are
presently due and owing; that Newby sold property (mineral rights) during the
pendency of the divorce despite the trial court’s mutual temporary injunction
enjoining the parties from disposing of both community and separate property;
and that Newby pawned her diamond earrings. Newby testified after Uhl, but
instead of contradicting Uhl’s testimony, he repeatedly invoked his Fifth
11
Amendment privilege against self-incrimination and evasively answered Uhl’s
attorney’s questions.7
A reasonable basis exists for the trial court’s decision to disproportionately
divide the community estate in favor of Uhl. Accordingly, we hold that the trial
court did not abuse its discretion in its equitable division of the marital estate, and
we overrule Newby’s fourth issue.
VII. INADEQUATELY BRIEFED ISSUES
In what we construe as his fifth, sixth, and seventh issues, Newby argues
that the trial court abused its discretion by awarding attorney’s fees, damages for
fraud, and custody of B.N. to Uhl. One of our sister courts recently explained,
We construe liberally pro se pleadings and briefs; however,
we hold pro se litigants to the same standards as licensed attorneys
and require them to comply with applicable laws and rules of
procedure. To do otherwise would give a pro se litigant an unfair
advantage over a litigant who is represented by counsel. The law is
well established that, to present an issue to this Court, a party’s brief
shall contain, among other things, a concise, nonargumentative
statement of the facts of the case, supported by record references,
and a clear and concise argument for the contention made with
appropriate citations to authorities and the record. Bare assertions
of error, without argument or authority, waive error. When a party
fails to adequately brief a complaint, he waives the issue on appeal.
Washington v. Bank of New York, 362 S.W.3d 853, 854–55 (Tex. App.—Dallas
2012, no pet.) (citations omitted).
7
At one point, Newby commented, “I plead the fifth. You can’t get that
through your head.” See Wilz v. Flournoy, 228 S.W.3d 674, 677 (Tex. 2007)
(reasoning that factfinder in civil case may draw negative inference from party’s
assertion of privilege against self-incrimination); see also Tex. R. Evid. 513(c).
12
Here, Newby’s fifth, sixth, and seventh issues consist of these three bullet
points: “•Judgment to pay petitioners absorbent [sic] attorney fees of $93,000”;
“•Judgment of $100,000 . . . regarding alleged business fraud”; and “•‘Sole’
custody of [B.N.], The Child in this matter.” All three issues are waived as
inadequately briefed because they are nothing more than bare assertions of
alleged error that fail to set forth any argument or authorities. See Tex. R. App.
P. 38.1(i); Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284
(Tex. 1994) (discussing “long-standing rule” that issue may be waived due to
inadequate briefing). We overrule Newby’s fifth, sixth, and seventh issues.
VIII. CONCLUSION
Having overruled all of Newby’s issues, we affirm the trial court’s judgment.
PER CURIAM
PANEL: MEIER, GARDNER, and WALKER, JJ.
DELIVERED: August 2, 2012
13