Colleen Marie Fisher v. Paul M. Cooke, Sr. ( 2022 )

Affirmed and Opinion Filed August 22, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00243-CV
COLLEEN MARIE FISHER, Appellant
V.
PAUL M. COOKE, SR., Appellee
On Appeal from the 191st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-18-05882
MEMORANDUM OPINION
Before Justices Partida-Kipness, Pedersen, III, and Nowell
Opinion by Justice Nowell
Colleen Marie Fisher appeals a final judgment in favor of Paul M. Cooke, Sr.
in this declaratory judgment suit regarding ownership of real property. The trial court
granted a motion for partial summary judgment against Fisher declaring Cooke to
be the owner of the property and subsequently entered orders sanctioning Fisher and
striking her counterclaim. The court ultimately rendered a final judgment
incorporating the partial summary judgment, a summary judgment against another
party, the orders sanctioning Fisher, and awarding Cooke attorney’s fees under the
declaratory judgment act. Only Fisher appeals. We affirm.
Background
This dispute involves ownership of a residence in Dallas County (the
Property). In July 2008, Fisher and her husband conveyed the Property to Cooke (her
father) and her mother by general warranty deed. The deed was recorded on July 30,
2008. Sometime in 2010, the house was damaged in a fire and has remained vacant
since that time.
In April 2018, Cooke entered into a contract to sell the Property to a third
party. The sale was scheduled to close in June 2018. On May 4, 2018, however,
Fisher’s son, Jonathan, as trustee of the JCLLA trust (the Trust), filed this suit against
Cooke seeking a declaratory judgment that the Trust, as assignee of Fisher, held an
option to repurchase the Property and seeking an order enforcing that option.
Alternatively, the Trust asserted a claim for damages for breach of the option
contract. Jonathan also filed a lis pendens notice regarding the Property.
The Trust’s claim is based on an agreement regarding real property (Option
Agreement) prepared in July 2008. The Trust’s petition alleged the Option
Agreement gave Fisher and her husband an option to repurchase the Property. The
petition alleged that Fisher received all rights under the Option Agreement from her
husband in a 2012 divorce decree and that Fisher assigned all of her rights under the
Option Agreement to the Trust on April 1, 2018.
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Cooke contends the Option Agreement was never executed by all parties and
that Fisher and her husband never paid the consideration recited in the agreement.
Thus, he contends the agreement is unenforceable.
On June 28, 2018, Cooke answered the lawsuit and filed a counterclaim
against the Trust and third-party claims against Fisher and her now ex-husband,
Kelly. Cooke alleged claims for a declaratory judgment that the Option Agreement
was void and unenforceable; the lis pendens notice was improper and void; the Trust,
Fisher, and Kelly had waived or otherwise forfeited any rights under the alleged
Option Agreement; and that Cooke was the sole, lawful owner of the Property.
Cooke also alleged a claim for breach of the Option Agreement against Fisher and
Kelly, and a suit to quiet title to the Property. He sought a temporary restraining
order and temporary and permanent injunctions, supported by his affidavit, to
require the removal of the lis pendens and to restrain any actions to interfere with
Cooke’s title to the Property or his ability to sell.
The trial court granted the temporary restraining order ex parte. Fisher states
in her brief that she learned of the temporary restraining order and filed a motion for
reconsideration. Neither the temporary restraining order nor the motion for
reconsideration are included in the appellate record. Fisher also states in her brief
that the trial court conducted a hearing on her motion for reconsideration on July 2,
2018. There is no record of this hearing before us.
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On July 12, 2018, the trial court conducted a hearing on the application for a
temporary injunction. An attorney appeared at the hearing and announced he was
representing Fisher for purposes of the hearing. Cooke’s counsel then announced
that the parties had reached an agreement on the temporary injunction and on a Rule
11 agreement regarding access to the Property for a period of sixty days. The Rule
11 agreement was dictated into the record and counsel for Fisher and Cooke
indicated their agreement to its terms. Jonathan was also present and confirmed his
agreement as trustee. The trial judge announced she was signing the written
temporary injunction, indicating that it was agreed and that it was subject to the Rule
11 agreement announced on the record. No one objected to or indicated any
disagreement with the court or with the temporary injunction signed at the
conclusion of the hearing.
The temporary injunction nullified the lis pendens notice and restrained the
Trust, Fisher, and Kelly from “filing any future lis pendens or other cloud against
the title to the Property, pending further order of this Court” and “from taking any
other action, legal or otherwise, to impede or prevent [Cooke]’s sale of the Property
or his peaceable use, enjoyment, and/or disposition of the Property as he pleases.” It
set a bond and recognized Cooke’s prior bond payment for the temporary restraining
order as full payment of the bond for the temporary injunction. The temporary
injunction set the case for trial on January 7, 2019.
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On November 16, 2018, Cooke filed a no-evidence motion for summary
judgment on the Trust’s claims for declaratory judgment and breach of contract. He
asserted the Trust had no evidence to support any of the elements of a breach of
contract claim based on the Option Agreement and no evidence of an ownership
interest in the Property to support a declaratory judgment. Jonathan filed an affidavit
in response; however, the trial court struck the affidavit and its exhibits on Cooke’s
objections. The trial court then granted the no-evidence motion for summary
judgment and rendered judgment that the Trust take nothing on its claims.
On September 24, 2019, Cooke filed a motion for partial summary judgment
on his claims for a declaratory judgment, permanent injunction, and attorney’s fees
against Fisher. Fisher did not file a response to the motion for partial summary
judgment.
On October 17, 2019, Cooke filed a motion for sanctions against Fisher
arguing she violated the temporary injunction by filing a notice of claim in the Bexar
County Probate Court administering her mother’s estate. The claim asserted that
Fisher’s mother executed a quitclaim deed of her interest in the Property to Fisher in
2008 and that Fisher held a fifty-percent interest in the Property and any proceeds
from its sale.
On November 12, 2019, Fisher filed an original answer and counterclaim
against Cooke, just three days before the hearing on the motion for partial summary
judgment and without leave of court. She alleged affirmative defenses of judicial
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estoppel and unclean hands and claims for a declaratory judgment that she is entitled
to enforce the Option Agreement, breach of contract, breach of fiduciary duty, and
attorney’s fees. On the same day, Cooke filed a second motion for sanctions,
supplementing the prior motion, and asserting that Fisher’s counterclaim was filed
without leave of court and in violation of the temporary injunction.
The motion for partial summary judgment and motions for sanctions were
heard on November 15, 2019. On February 21, 2020, the trial court granted
summary judgment declaring that Cooke was the lawful owner of the Property free
of any claims under the Option Agreement and that Fisher and the Trust have no
ownership interest or repurchase rights in the Property. The summary judgment
permanently enjoined Fisher from “further interfering with Cooke’s clear title, use,
and/or disposition of the Property.” The summary judgment awarded Cooke
attorney’s fees in an amount to be determined later.
Also on February 21, 2020, the trial court granted the motions for sanctions
and sanctioned Fisher and her attorney for violating the temporary injunction by
filing the notice of claim in Bexar County and the original answer and counterclaim
without leave of court. The court struck Fisher’s counterclaim, imposed a sanction
of $5,000 against Fisher and her attorney, and ordered Fisher to withdraw or dismiss
the Bexar County filing within two days of the order. The trial court subsequently
denied Fisher’s motion to reconsider this order.
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On February 25, 2020, Fisher, again without leave of court, filed an amended
answer and counterclaim against Cooke. She alleged she paid Cooke and her mother
the consideration recited in the Option Agreement and that Cooke held the property
for the benefit of her and her children. She asserted a claim for a declaratory
judgment imposing a constructive trust on the proceeds of any sale of the Property
and alternatively a claim for money had and received.
Cooke filed a motion for sanctions relating to the amended counterclaim on
March 10, 2020. He sought sanctions for filing the amended counterclaim without
leave of court, failure to dismiss the Bexar County notice of claim, and failure to pay
the monetary sanctions awarded in the February 21, 2020 sanction order.
On June 22, 2020, the court signed an order sanctioning Fisher and striking
her amended counterclaim for filing without leave of court and ordering her to
dismiss the Bexar County notice of claim within two days and to pay the prior
monetary sanctions and an additional monetary sanction of $7,500.
Fisher later filed a motion for rehearing regarding the June 22, 2020 sanction
order because her attorney did not have proper notice of the hearing on the motion
for sanctions. The trial court held a new hearing on September 27, 2020 on various
motions including the motion for rehearing.
On December 9, 2020, Cooke moved for entry of a final judgment after
reaching an agreement with Jonathan Fisher as trustee and dismissing his claim for
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tortious interference against Fisher. A hearing was held on the motion for entry of
final judgment, but there is no transcript included in the appellate record.
On January 5, 2021, the trial court signed a final judgment reciting that the
no-evidence and partial summary judgments, the sanctions orders, and Cooke’s
dismissal of his remaining claims resolved all claims against all parties except
Cooke’s claim for attorney’s fees. The trial court rendered judgment as follows:
declaring that Cooke was the sole, lawful owner of the Property free and clear of any
repurchase rights; incorporating the no-evidence and partial summary judgments;
ordering that the Trust and Fisher take nothing on any claims against Cooke;
permanently enjoining Fisher and all parties in accordance with the partial summary
judgment from further interfering with Cook’s clear title, use, and/or disposition of
the Property; making separate awards of attorney’s fees to Cooke against the Trust
and Fisher under the declaratory judgment act; incorporating the sanction orders;
and awarding Cooke costs and post-judgment interest. The judgment states that it is
final, disposes of all issues and all parties, and is appealable.
Standard of Review
We review the trial court’s summary judgment de novo. Provident Life &
Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). A party moving for
traditional summary judgment has the burden to prove that there is no genuine issue
of material fact, and it 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,
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848 (Tex. 2009). If the movant establishes its right to summary judgment, the burden
shifts to the non-movant to raise a genuine issue of material fact. Knott, 128 S.W.3d
at 215. A party relying on an affirmative defense to oppose a motion for summary
judgment must present summary judgment evidence raising a fact issue on each
element of the affirmative defense. Brownlee v. Brownlee, 665 S.W.2d 111, 112
(Tex. 1984); Birenbaum v. Option Care, Inc., 971 S.W.2d 497, 504 (Tex. App.—
Dallas 1997, no pet.). “When reviewing a summary judgment, we take as true all
evidence favorable to the nonmovant, and we indulge every reasonable inference
and resolve any doubts in the nonmovant’s favor.” Valence Operating Co. v. Dorsett,
164 S.W.3d 656, 661 (Tex. 2005).
We review a trial court’s ruling on a motion for sanctions for an abuse of
discretion. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007). A trial court abuses its
discretion if its ruling is unreasonable or arbitrary or made without reference to any
guiding rules or principles. See id. In reviewing the trial court’s order, we ordinarily
look to its formal findings of fact and conclusions of law. McCain v. NME Hosps.,
Inc., 56 S.W.2d 751, 756 (Tex. App.—Dallas 1993, no writ). However, when, as
here, the trial court does not make findings of fact and conclusions, the trial court’s
order implies all necessary fact findings to support it. Id. We must uphold the order
on any applicable theory that finds support in the record. Id.–9–
Discussion
Fisher is pro se on appeal. Pro se litigants are required to adhere to the rules
of evidence and procedure, including the appellate rules of procedure. See Bolling v.
Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893, 895 (Tex. App.—Dallas 2010,
no pet.). Pro se litigants will not be treated differently than a party who is represented
by a licensed attorney. Id. 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. In re N.E.B.,
251 S.W.3d 211, 211–12 (Tex. App.—Dallas 2008, no pet.) (citing Mansfield State
Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978)). To do otherwise would give a
pro se litigant an unfair advantage over a litigant who is represented by counsel. Id.
at 212.
Many of Fisher’s issues overlap and are repetitive. She complains about
several rulings in the trial court. Liberally construing her brief, we discuss her issues
in the context of those rulings.
A. Right to Jury Trial
Initially, Fisher argues her rights to due process and to a jury trial were
violated. She argues it was improper to grant the temporary restraining order ex parte
and that she never had the opportunity to present evidence of her claims to a jury.
The rules of procedure permit a temporary restraining order to be issued ex
parte under appropriate circumstances, see TEX. R. CIV. P. 680, and Fisher admits in
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her brief that she received notice of the temporary restraining order and filed a
motion for reconsideration, which the trial court heard.1 Thus, she was given notice
and an opportunity to be heard on the temporary restraining order. Further, because
a temporary restraining order must expire by its terms within fourteen days after it
is signed, Fisher’s complaints about the temporary restraining order are moot. See
id.; Nat’l Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999) (“Appellate
courts are prohibited from deciding moot controversies.”); See Hermann Hosp. v.
Tran, 730 S.W.2d 56, 57 (Tex. App.—Houston [14th Dist.] 1987, orig. proceeding)
(holding issues regarding temporary restraining order were moot after temporary
restraining order expired without further extension).
Regarding her complaint about a jury trial, Fisher had the opportunity to
respond to the motion for partial summary judgment and raise a genuine issue of
material fact for a jury to resolve. See TEX. R. CIV. P. 166a(c). The summary
judgment process provides a method of terminating a case when only questions of
law are involved and there are no genuine issues of material fact. Bliss v. NRG Indus.,
162 S.W.3d 434, 437 (Tex. App.—Dallas 2005, pet. denied); Martin v. Commercial
Metals Co., 138 S.W.3d 619, 627 (Tex. App.—Dallas 2004, no pet.). The process
will not deprive litigants of a jury trial where material questions of fact exist.
However, if there is nothing to submit to a jury, then the grant of summary judgment
1
Although there is no record of a hearing on a motion to reconsider the temporary restraining order,
the trial court’s docket sheet indicates a hearing was held.
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cannot violate a party’s constitutional right to a jury trial. Bliss, 162 S.W.3d at 437;
Martin, 138 S.W.3d at 627. We discuss the motion for partial summary judgment
below.
We overrule Fisher’s first issue.
B. Temporary Injunction
In her second issue, Fisher complains about the temporary injunction. She
contends she did not sign or agree to the temporary injunction and that it fails to
comply with Rule 683.
The transcript of the temporary injunction hearing shows that an attorney
appeared on Fisher’s behalf and never indicated any disagreement when Cooke’s
counsel represented to the court that the parties had reached an agreed temporary
injunction. Fisher’s attorney also indicated his agreement with the terms of a Rule
11 agreement dictated into the record. The judge stated on the record that she was
signing the temporary injunction, indicating it was an agreed temporary injunction,
and adding language that it was subject to the terms of the Rule 11 agreement. No
objection was raised. Thus, the trial court did not abuse its discretion by concluding
the temporary injunction was agreed. See Butnaru v. Ford Motor Co., 84 S.W.3d
198, 204 (Tex. 2002) (whether to grant or deny temporary injunction is within trial
court’s sound discretion).
In relevant part, Rule 683 provides that every order granting a temporary
injunction shall set forth the reasons for its issuance and shall include an order setting
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the cause for trial on the merits with respect to the ultimate relief sought. TEX. R.
CIV. P. 683. The requirements of Rule 683 are mandatory. Qwest Commc’ns Corp.
v. AT & T Corp., 24 S.W.3d 334, 337 (Tex. 2000).
In the temporary injunction, the trial court found that Cooke had a contract to
sell the Property set to close on June 29, 2018, the sale did not close due to this
lawsuit and the lis pendens notice, and the lawsuit and lis pendens notice impede
Cooke’s ability to sell, refinance, obtain loans, and enjoy the full use of the Property.
The court also found that Cooke will likely suffer irreparable harm without the
injunction due to the lost sale, losing the ability to sell, refinance, or obtain additional
loans for the Property, and the difficulty of finding another buyer. The court found
that damages would be inadequate because of the opposing parties’ inability to pay
damages and that injunctions may issue if irreparable injury to real property is
threatened irrespective of any remedy at law. See TEX. CIV. PRAC. & REM. CODE §
65.011(5); Butnaru, 84 S.W.3d at 211 (recognizing trial court may grant equitable
relief when dispute involves real property). The court further found that Cooke was
likely to succeed on the merits.
Fisher argues no temporary injunction bond was filed. However, the
temporary injunction sets a bond and recognizes the bond paid in support of the
temporary restraining order as payment of the bond for the temporary injunction.
See Ex parte Coffee, 328 S.W.2d 283, 285, 291–92 (Tex. 1959) (trial court may
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authorize bond filed for temporary restraining order continued as bond supporting
temporary injunction).
Fisher also argues the temporary injunction was void because it did not
include the date of trial after the trial court later granted several continuances. The
temporary injunction includes an order setting the case for trial on the merits on
January 7, 2019. Thus, the temporary injunction satisfied the requirement of Rule
683 that it set the case for trial. See TEX. R. CIV. P. 683. It is immaterial to the
sufficiency of the temporary injunction that the trial date was later continued.
Fisher contends she presented conflicting evidence in her motion for
reconsideration of the temporary restraining order. This motion is not included in
the appellate record and there is no record of the hearing. Further, this motion, as
indicated in the court’s docket sheet, was filed before the temporary injunction was
granted and nothing in the record shows it was presented to the trial court afterwards
as basis for dissolving the temporary injunction. But even if Fisher presented
conflicting evidence on the temporary injunction, a trial court does not abuse its
discretion by granting a temporary injunction based on conflicting evidence. See
Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978); Tom James of Dallas, Inc. v. Cobb,
109 S.W.3d 877, 883 (Tex. App.—Dallas 2003, no pet.).
We conclude the temporary injunction satisfies the requirements of Rule 683
and is not void. Any remaining complaints about the temporary injunction are now
moot in light of the permanent injunction. See Nat’l Collegiate Athletic Ass’n, 1
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S.W.3d at 86 (holding temporary injunction becomes moot when it becomes
inoperative due to change in status of parties or passage of time); Faddoul, Glasheen
& Valles, P.C. v. Oaxaca, 52 S.W.3d 209, 212 (Tex. App.—El Paso 2001, no pet.).
We overrule Fisher’s second issue.
C. Partial Summary Judgment
Fisher’s fourth, fifth, sixth, and ninth issues address the motions for summary
judgment. We discuss these issues together.
In the motion for partial summary judgment, Cooke, while denying any rights
existed under the Option Agreement, argued that Fisher had assigned whatever rights
she had under that agreement to the Trust and those rights, if any, were denied by
the no-evidence summary judgment against the Trust. In addition, he argued and
presented summary judgment evidence that the Option Agreement was never fully
executed and the consideration for it was never paid. He also presented evidence that
Fisher waived any rights under the Option Agreement by failing to assert those rights
despite multiple triggering events. Thus, he argued that even if there were fact issues
about whether the Option Agreement was valid, Cooke was entitled to partial
summary judgment against Fisher based on the no-evidence summary judgment.
Cooke also requested that the temporary injunction be converted to a permanent
injunction to prevent interference with his title to the Property.
Fisher argues in her brief that the permanent injunction was improper. We
review the granting of a permanent injunction for an abuse of discretion. See Lagos
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v. Plano Econ. Dev. Bd., Inc., 378 S.W.3d 647, 650 (Tex. App.—Dallas 2012, no
pet.). We must consider all the summary judgment evidence to determine whether
the trial court clearly abused its discretion by granting the permanent injunction. Id.Specifically, Fisher argues the permanent injunction was improper because
Cooke did not show a valid cause of action against her, irreparable injury, or
inadequate remedy at law. We disagree. Cooke alleged a cause of action against
Fisher for declaratory judgment that the Option Agreement was void and
unenforceable and that she waived, breached, or failed to timely exercise any right
of repurchase under the Option Agreement. He also alleged an alternative claim for
breach of contract and a suit to quiet title. Cooke stated in his affidavit that he
discussed the April 2018 contract of sale with Fisher, that Fisher never asserted any
right to purchase the Property under the Option Agreement, and that Fisher was
involved with her son in filing this lawsuit and the lis pendens based on text
messages with her, Jonathan, and Kelly asserting the others were involved in and
controlling the litigation.
Further, the ownership and potential loss of real property is at issue here. The
loss of rights in real property is considered an irreparable injury. See Yarto v.
Gilliland, 287 S.W.3d 83, 97 (Tex. App.—Corpus Christi 2009, no pet.) (holding
the potential loss of rights in real property is a probable, imminent, and irreparable
injury that qualifies a party for a temporary injunction). An injunction may issue
where irreparable injury to property is threatened without regard to an adequate
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remedy at law. TEX. CIV. PRAC. & REM. CODE § 65.011(5); Butnaru, 84 S.W.3d at
211. After considering all the summary judgment evidence, we cannot say the trial
court clearly abused its discretion by granting the permanent injunction.
Fisher also argues the Property was not Cooke’s community property because
of the inception of title rule and that the Property was refinanced with funds from
both her and Cooke. However, community property principles apply to property
owned by spouses. See TEX. FAM. CODE § 3.002. They have no application to claims
of ownership of property as between a father and his child.
Without identifying any specific statements, Fisher contends that Cooke’s
affidavit is conclusory. Cooke stated in his affidavit that the Option Agreement was
not fully executed because Fisher never signed it and that Fisher and Kelly never
paid the consideration, approximately $100,000, required by the agreement. Fisher
asserts on appeal that she paid the consideration for the Option Agreement, but it
was her burden to file summary judgment evidence of that fact in order to create a
genuine issue of fact. She failed to do so because she never filed any summary
judgment evidence in response to the motion for partial summary judgment. While
she points to certain documents attached as exhibits to other motions filed in the
case, none of those documents were authenticated and filed in response to the motion
for partial summary judgment as required by Rule 166a(c). TEX. R. CIV. P. 166a(c).
We conclude that Cooke’s affidavit was not conclusory.
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Fisher argues on appeal that Cooke’s affidavit was not clear, positive, direct
or free from contradiction as required for an interested witness. See TEX. R. CIV. P.
166a(c). This is an objection to the form of a summary judgment affidavit and must
be raised in the trial court in order to give the opposing party an opportunity to
amend. See Hogan v. J. Higgins Trucking, Inc., 197 S.W.3d 879, 883 (Tex. App.—
Dallas 2006, no pet.). Failure to raise the objection and obtain a ruling in the trial
court results in waiver of the objection. Id.; see also TEX. R. APP. P. 33.1(a); Choctaw
Prop., L.L.C. v. Aledo I.S.D., 127 S.W.3d 235, 241 (Tex. App.—Waco 2003, no pet.)
(holding objection that affidavit of interested witness is not clear, positive, direct, or
free from contradiction is defect-in-form complaint).
Next, Fisher contends Cooke should be judicially estopped because of
statements he allegedly made about the Property in prior litigation with a third party.
Fisher raised this as an affirmative defense in her original answer and counterclaim.
However, she did not raise it or produce evidence on all elements of the defense in
response to the motion for partial summary judgment. In order to defeat a motion for
summary judgment based on an affirmative defense, a non-movant must produce
summary judgment evidence raising a genuine issue of material fact on all elements
of the affirmative defense. See Brownlee, 665 S.W.2d at 112; Birenbaum, 971
S.W.2d at 504. Fisher failed to meet her burden to raise a fact issue on her judicial
estoppel defense.
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Lastly, Fisher asserts she has standing on behalf of the Trust to assert rights
under the Option Agreement. However, the Trust’s rights, if any, under the Option
Agreement were defeated in the no-evidence summary judgment. Fisher does not
challenge the striking of Jonathan’s affidavit filed in response to the no-evidence
motion for summary judgment. Without evidence raising a fact issue on the
challenged elements of the Trust’s claims, the trial court was required to grant
summary judgment. See TEX. R. CIV. P. 166(i); Tarver v. 4441 Alma Rd., LLC, No.
05-20-00707-CV, 2022 WL 1564547, at *3 (Tex. App.—Dallas May 18, 2022, no
pet. h.). As a result, any claim the Trust—or Fisher—had under the Option
Agreement was barred by that judgment. Thus, even if Fisher has standing to appeal
the no-evidence summary judgment, she has failed to show the trial court erred by
granting it.
We overrule Fisher’s fourth, fifth, sixth, and ninth issues.
D. Sanctions
In her third issue, Fisher argues the trial court abused its discretion by striking
her counterclaims as a sanction. She argues her counterclaim and amended
counterclaim did not violate the temporary injunction. She points to a statement at
the temporary injunction hearing where the parties agreed that filing for relief with
the court would not violate the court’s order in the temporary injunction. However,
it does not appear from the record that this issue was ever presented to the trial court.
See TEX. R. APP. P. 33.1(a) (requirements for preserving error).
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Further, we conclude that any error in striking the counterclaims as a sanction
was harmless because they were filed within seven days of or after the partial
summary judgment hearing without leave of court. See TEX. R. CIV. P. 63, 166a(c).
Fisher filed her answer and counterclaims three days before the hearing on the
motion for partial summary judgment. She did not seek or obtain leave of court to
file the pleading within seven days of the summary judgment hearing, which is a
trial for purposes of Rule 63. See TEX. R. CIV. P. 63. Nor did she seek or obtain leave
of court to file her amended counterclaim after the trial court granted the motion for
partial summary judgment. Thus, even if it was an abuse of discretion to strike the
counterclaims as a sanction, any error was harmless. See Dickens v. Jason C.
Webster, P.C., No. 05-17-00423-CV, 2018 WL 6839568, at *14 (Tex. App.—Dallas
Dec. 31, 2018, no pet.) (mem. op.) (holding trial court did not abuse its discretion by
striking amended counterclaim filed morning of summary judgment hearing without
leave of court); Nairn v. Killeen Ind. Sch. Dist., 366 S.W.3d 229, 249 (Tex. App.—
El Paso 2012, no pet.) (finding no abuse of discretion after trial court struck
appellant’s petition for not seeking leave after a trial court’s ruling on a motion for
partial summary judgment); Cherry v. McCall, 138 S.W.3d 35, 42–43 (Tex. App.—
San Antonio 2004, pet. denied) (upholding a trial court’s striking of appellant’s
amended pleadings that added causes of action after a hearing and order on a take-
nothing partial summary judgment).
We overrule Fisher’s third issue.
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E. Remaining issues
In her seventh issue, Fisher complains that the trial court erred by failing to
rule on her motion to reconsider the temporary restraining order and her motion for
rehearing regarding the motion for sanctions. However, by rendering a final
judgment expressly stating that the judgment is “final, disposes of all issues and all
parties, and is appealable,” the trial court impliedly denied these motions. See
Lehmann v. Har-Con Corp., 39 S.W.3d 191, 206 (Tex. 2001). Further, Fisher failed
to bring forward a record of the motion and hearing regarding the temporary
restraining order and that order is now moot. See Enter. Leasing Co. of Houston v.
Barrios, 156 S.W.3d 547, 549 (Tex. 2004) (per curiam) (stating that burden is on
appellant to present sufficient record to show error requiring reversal). We overrule
Fisher’s seventh issue.
In issues eight and ten, Fisher complains about the trial court granting two
motions for continuance filed by Cooke. She argues the motions were supported by
false affidavits or no affidavits. However, Fisher has not shown how the trial court
abused its discretion or how the granting of the continuances probably caused the
rendition of an improper judgment. See TEX. R. APP. P. 44.1(a). We overrule issues
eight and ten.
In her eleventh issue, Fisher argues the award of attorney’s fees to Cooke
under the declaratory judgment act was not equitable and just. See TEX. CIV. PRAC.
& REM. CODE § 37.009. Other than her complaints about the trial court’s rulings,
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which we have addressed, she does not show how or why the trial court abused its
discretion by awarding fees to Cooke. We overrule Fisher’s eleventh issue.
Conclusion
Having overruled Fisher’s issues on appeal, we affirm the trial court’s
judgment.
/Erin A. Nowell//
ERIN A. NOWELL
JUSTICE
210243f.p05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
COLLEEN MARIE FISHER, On Appeal from the 191st Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. DC-18-05882.
No. 05-21-00243-CV V. Opinion delivered by Justice Nowell.
Justices Partida-Kipness and
PAUL M. COOKE, SR., Appellee Pedersen, III participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee PAUL M. COOKE, SR. recover his costs of
this appeal from appellant COLLEEN MARIE FISHER.
Judgment entered this 22nd day of August, 2022.
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