in the Guardianship of Vassil v. Tchokoev, an Incapacitated Person ( 2022 )

NO. 12-22-00193-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN THE GUARDIANSHIP OF VASSIL § APPEAL FROM THE
V. TCHOKOEV, AN INCAPACITATED § COUNTY COURT AT LAW
PERSON § CHEROKEE COUNTY, TEXAS
MEMORANDUM OPINION
William K. Wilder appeals the trial court’s order imposing monetary sanctions against
him. He also appeals the denial of his motion for sanctions. He presents six issues on appeal.
We affirm.
BACKGROUND
This is an appeal from an order granting sanctions in a guardianship proceeding. Much
of the underlying facts are unknown and not contained in the appellate record. 1 However, the
record does indicate that during the guardianship proceeding, Wilder represented the ward, Dr.
Vassil V. Tchokoev. It appears Vassil’s sons, Vastan and Nicholas (the Applicants), applied for
the guardianship. In accordance with the Texas Estates Code, the Applicants requested an
independent medical examination (IME) of Vassil’s competency. The record indicates that there
were some issues finding a doctor covered by Vassil’s insurance. Once the examination was
conducted, it appeared that Vassil’s wife, Olga, participated in the examination. In addition, the
examination notes referenced a more “physical” examination instead of a mental or
psychological examination. Therefore, the Applicants requested an additional IME. At the
hearing, the Applicants provided the trial court with the name of a doctor in Dallas that had
1
Wilder makes a number of factual allegations in his brief; however, the majority of those “facts” are not
contained in the appellate record.
agreed to perform the examination. The Applicants also agreed to provide or arrange
transportation for Vassil to and from the appointment. The trial court granted the motion on
February 22, 2022 and gave the parties thirty days to conduct the IME.
The examination was scheduled for March 3. That morning, Wilder advised Olga not to
permit Vassil to go to the exam. He claimed the exam must be done by a psychiatrist or
psychologist while the current doctor was a neurologist. Therefore, he refused to allow Vassil to
attend. Vassil later died on March 20, under allegedly suspicious circumstances.
The Applicants filed a motion for sanctions against Wilder, alleging that his conduct on
March 3, and throughout the guardianship, was unscrupulous. Following a hearing, the trial
court granted the motion; however, it allowed the Applicants to amend the motion to include the
amount of attorney’s fees owed.
Wilder filed his own motion for sanctions alleging that the Applicants made false
accusations against him and failed to post the bond required under the Texas Estates Code. The
trial court denied the motion.
After the trial court closed the guardianship, the sanctions orders became final. This
appeal followed.
SANCTIONS
In his first three issues, Wilder asserts the trial court abused its discretion in imposing
sanctions against him. In issues one and two, Wilder contends that the trial court required that
Vassil be examined by a psychiatrist and not a neurologist; therefore, Wilder’s advice to not
undergo the examination did not warrant sanctions. In his third issue, Wilder argues that he
could not be sanctioned until after the date set forth in the trial court’s order. 2 In his fourth and
fifth issues, Wilder states that his motion for sanctions should have been granted. Specifically,
he urges that the bond required by the Texas Estates Code was never posted and the Applicants
should be accordingly sanctioned.
Standard of Review
We review a trial court’s imposition of sanctions for an abuse of discretion. Cire v.
Cummings, 134 S.W.3d 835, 383-39 (Tex. 2004). A court abuses its discretion when it acts
arbitrarily or without reference to any guiding rules or principles. Downer v. Aquamarine
2
Wilder does not dispute the amount of the sanctions ordered.
2
Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985). Although we view conflicting evidence
favorably to the court’s decision, we are not bound by a trial court’s fact findings or conclusions
of law and must, instead, review the entire record independently to determine whether the trial
court abused its discretion. Brewer v. Lennox Hearth Products, LLC, 601 S.W.3d 704, 717
(Tex. 2020). A decision lacking factual support is arbitrary and unreasonable and must be set
aside. Id.Applicants’ Motion for Sanctions
At the hearing on the motion for sanctions, Vastan testified that a nurse approached him
about Vassil’s HIPAA form. The release included two people: Olga and “Dr. Wilder.” The
nurse said that Wilder represented himself as a medical doctor. Vastan told her to remove both
individuals and add him, his brother, and his wife, Megan. On cross-examination, Wilder pointed
out that his wife has a Ph.D. and goes by “doctor.”
Vastan further testified that on another occasion, he contacted the Tyler Police
Department because he “was concerned about foul play due to the serious bump and laceration
[on] top of [his] father’s head that was not there on Tuesday morning that [he] can remember.”
The officers gave him a case number, took photographs, and collected some other evidence.
They also gave Vastan a number to call when Vassil passed away. During their investigation,
Tyler Police learned that several medical records had been deleted. Vastan stated:
They informed my brother and I that the records appeared to have been deleted, that they were told
by the Hospice staff that they no longer had any records or the HIPAA forms on Olga or Bill
[Wilder].
Vastan testified that he received a new case number and that the officers believed a different
crime may have been committed. 3
During a second hearing on the motion, it was discussed that Wilder filed a response to
the motion for sanctions in which he clarified that he never represented Olga. However,
Vastan’s attorney urged that he was unaware that Olga was acting pro se during the pendency of
3
Vastan prepared an affidavit for the first hearing to support the motion for sanctions. He did not testify
from the affidavit. Rather, he used it “for recollection.” As noted above, this Court was not provided a complete
clerk’s record because Wilder only requested certain documents be contained in it. As a result, in reviewing the
reporter’s record, this Court asked the clerk’s record be supplemented to contain the affidavit referenced in Vastan’s
testimony. Wilder filed an objection to the affidavit. It does not appear that he objected to the affidavit in the trial
court. And it appears the trial court may have considered the affidavit in granting the motion for sanctions. As a
result, we overrule Wilder’s objection.
3
the guardianship. According to Vastan, Wilder was advising Olga as if he was her attorney
regarding the examination scheduled for March 3. According to Vastan’s attorney:
. . . the question is we never communicated to Dr. Tchokoev, Vassil; he was in bed. That was the
testimony. Wilder only communicated to Olga, who I thought was his client. I could have
communicated with her, anybody else could have. She refused access to him, and that was the
moment that we felt that the order had been disobeyed completely in taking him to the
independent medical evaluation had been realized, but it was Mr. Wilder who directed him not to
get out of bed through somebody he did not represent. It gets confusing.
...
So when we show up on the morning of March 3rd after all of this argument, after all of this
presentation to take the man to go see a doctor and this man fights it, he directs to go see it, to not
see it vociferously to this tangential one-off person I didn’t know he didn’t represent where I
could’ve talked to her directly myself. He directly interfered in the intent of your order,
psychologist or psychologist (sic) aside.
Now, I’d be willing to argue the psychologist/psychologist (sic) question I thought we already
had. We were in chambers when we did this and you signed an order. I think that somebody that’s
been practicing law 51 years, who has a duty to a client who is obviously incapacitated in some
capacity, you would think would have a responsibility to see that a medical doctor looked at him,
no matter what, and if they had a problem with the results that came back the day later -- the
second day later, whenever they came back, he could’ve came [sic] here before you and said, “I
object. Let’s seal them. Protective order. Quash them. In camera.” 51 years of experience, but he
had a responsibility to know what mental health and physical condition his client was in, and my
clients paid for that opportunity as neutrally and by golly as gracefully as they could.
...
I’m mad, but I didn’t come here to embarrass or impugn Mr. Wilder. I respect his 51 years of
practice, but enough is enough. He used every ounce -- every bit of his skills to evade, dodge,
weave, obfuscate. Got a phrase for it; it’s called officious intermeddling. It’s production of work
just for generation of costs, and we’re kindly asking that the Court award these costs expressly
related to misconduct after March 3rd and paid to Vastan and Nicholas Tchokoev.
Wilder argued that Applicants were complying with the court order because the doctor was not a
psychiatrist or psychologist. He also argued that he had until March 24th to comply with the
order. However, because Vassil died prior to that date, he argued he did not violate the order.
Generally, a trial court has “inherent power to sanction bad faith conduct during the
course of litigation that interferes with the administration of justice or the preservation of the
court’s dignity and integrity.” Phillips & Akers, P.C. v. Cornwell, 927 S.W.2d 276, 280 (Tex.
App. Houston [1st Dist.] 1996, no writ) (citing Onwuteaka v. Gill, 908 S.W.2d 276, 280 (Tex.
App.—Houston [1st Dist.] 1995, no writ); Metzger v. Sebek, 892 S.W.2d 20, 51 (Tex. App.—
Houston [1st Dist.] 1994, writ denied)). Such powers, however, are limited. “The trial court’s
4
inherent power to sanction exists only to the extent necessary to deter, alleviate, and counteract
bad faith abuse of the judicial process, such as significant interference with core judicial
functions . . . of Texas courts.” Id. at 280 (citing Onwuteaka, 908 S.W.2d at 280).
Parties must generally obey even an invalid order until it is overturned on appeal.
Bachynsky v. State, 747 S.W.2d 847, 849 (Tex. App.—Dallas 1988), aff’d in part and rev’d in
part on other grounds, 770 S.W.2d 563 (Tex. 1989). A party’s failure to comply with a court
order could result in the party being held in contempt or in other sanctions being imposed. See
Koslow’s v. Mackie, 796 S.W.2d 700, 704 (Tex. 1990) (discussing various sanctions for failure
to comply with court orders); Ex parte Johns, 807 S.W.2d 768, 770 (Tex. App.—Dallas 1991,
no writ) (contempt); see also TEX. R. APP. P. 60 (dismissal of appeal for failure to comply with
order of appellate court).
Based on the record before us, the trial court could have reasonably concluded that
Wilder instructed his client, Vassil, via Olga, to not comply with the trial court’s order
compelling an IME. Even if the trial court intended for Vassil to be examined by a psychologist
as Wilder argues, the record indicates that the trial court granted the motion for an IME after the
parties agreed to a specific doctor. The fact that the doctor is a neurologist does not negate the
trial court’s order or the parties’ agreement. In addition, there is no evidence in the record that
Wilder intended to comply with the trial court’s order within the time frame allotted. Because
the record contains evidence from which the trial court could reasonably conclude that Wilder
failed to comply with a court order, we conclude that the trial court did not abuse its discretion in
granting the Applicants’ motion for sanctions. See Koslow’s, 796 S.W.2d at 704; see also
Downer, 701 S.W.2d at 241. We overrule Wilder’s first, second, and third issues.
Wilder’s Motion for Sanctions
Wilder also filed a motion for sanctions alleging the Applicants failed to post bond for
the temporary restraining order as required.
On March 18, 2022, the trial court held an emergency hearing on the Applicants’ request
for temporary guardianship and heard their request for a temporary restraining order, which it
granted. That order enjoined Olga from accessing, withdrawing, transferring, removing,
transmitting, or otherwise engaging in financial transactions on behalf of Vassil. The trial court
further ordered that “within five (5) business days, the Movants must execute and file with the
clerk a bond in the amount of $50,000.00 to the adverse party in accordance with Rule 684 of the
5
Texas Rules of Civil Procedure.” Wilder contends the bond was never provided, and therefore,
the trial court erred in not granting sanctions against the Applicants. However, he acknowledged
that there is money in the registry of the court. Thus, he contends Applicants failed to follow the
form of the bond.
The entirety of Wilder’s argument for both issues four and five are found in his
“summary of the argument” section of his brief:
Appellees failed to post a bond for their temporary restraining order as clearly required by law,
and sanctions should be ordered against them and/or their attorneys.
...
The conduct of Appellees and/or their attorneys which amounted to extreme annoyance,
harassment and unprofessional conduct of Appellant and his Client justified an order of sanctions
against Appellees and/or their attorneys to include an award of attorneys fees and costs of court to
Appellant.
Wilder cites no authority for his arguments and no factual basis or explanation. Instead,
he merged all six of his issues together, focusing on facts supporting the first three issues. Rule
38.1 of the Texas Rules of Appellate Procedure mandates that an appellant’s brief must 1) state
concisely all issues or points presented for review and 2) contain a clear and concise argument
for the contentions made, with appropriate citations to authorities and to the record. TEX. R. APP.
P. 38.1(e), (h). The failure to brief, or to adequately brief, an issue by an appellant effects a
waiver of that issue on appeal. General Servs. Comm’n v. Little-Tex Insulation Co., Inc., 39
S.W.3d 591, 598 n.1 (Tex. 2001). We have liberally construed Wilder’s brief in order to give
effect to his arguments. See TEX. R. APP. P. 38.9. But it is not our duty to review the record,
research the law, and fashion a legal argument for an appellant when he has failed to do so.
Zhang v. Capital Plastic & Bags, Inc., 587 S.W.3d 82, 90 (Tex. App.—Houston [14th Dist.]
2019, pet. denied). Wilder’s brief does not contain a clear and concise argument and contains no
citations to authority or the record. In addition, he did not argue his fifth issue before the trial
court. TEX. R. APP. P. 33.1. Accordingly, we hold he has waived any alleged error with respect
to issues four and five.
In his sixth issue, Wilder urges the Applicants be charged the costs of this appeal,
including attorney’s fees. We decided that the trial court did not err. Because Wilder’s sixth
6
issue is premised upon the trial court’s alleged error in its judgment, Wilder’s sixth issue is moot.
Accordingly, we overrule Wilder’s sixth issue.
DISPOSITION
Having overruled Wilder’s first, second, and third issues, concluded that issues four and
five are waived, and overruled his sixth issue, we affirm the trial court’s judgment.
BRIAN HOYLE
Justice
Opinion delivered November 17, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
7
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
NOVEMBER 17, 2022
NO. 12-22-00193-CV
IN THE GUARDIANSHIP OF VASSIL V. TCHOKOEV,
AN INCAPACITATED PERSON
Appeal from the County Court at Law
of Cherokee County, Texas (Tr.Ct.No. G00030)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed and that all costs of this appeal are hereby adjudged
against the Appellant, WILLIAM K. WILDER, and that this decision be certified to the court
below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
8
9