kip-allison-v-conglomerate-gas-ii-lp-crestview-farm-250-lp-crestview ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00205-CV
KIP ALLISON APPELLANT
V.
CONGLOMERATE GAS II L.P., APPELLEES
CRESTVIEW FARM 250 L.P.,
CRESTVIEW FARM, L.L.C.,
CRESTVIEW FARM, L.L.C. “A
MONTANA LLC,” CRESTVIEW
FARM AIKEN LLC, THE BARNETT
SHALE WATER CONSERVATION
CO., CONGLOMERATE GAS,
L.L.C., CONGLOMERATE GAS I,
L.P., CONGLOMERATE HOLDING
LLC, CONGLOMERATE GAS III
L.P., DAN MEEKER
MANAGEMENT, INC.,
VANCOUVER SKY MANAGEMENT
LLC, TRACY BOLT AS TRUSTEE
OF DAVID ALAN MEEKER FAMILY
IRREVOCABLE TRUST, THOMAS
BALLARD AS TRUSTEE OF THE
DAN H. MEEKER CHILDREN’S
IRREVOCABLE TRUST, AND
CLIFFORD W. GINN
----------
FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 342-236004-09
----------
MEMORANDUM OPINION 1
----------
Kip Allison challenges a sanctions order against him arising from pleadings
he filed for his client in the underlying suit. 2 In five issues, Allison contends that
the trial court abused its discretion by awarding sanctions because (1) there is no
evidence supporting the trial court’s determination that the invasion of privacy
claim was groundless or that it was brought in bad faith or for purposes of
harassment or delay, challenging the award of rule 13 sanctions (issues one and
two); (2) there is no evidence supporting the trial court’s determination that the
invasion of privacy claim was brought for an improper purpose, challenging the
imposition of sanctions under chapter 10 of the civil practice and remedies code
(issue three); and (3) there is no evidence supporting the award of sanctions for
Allison’s attachment of an improperly notarized affidavit to a response to a
motion for summary judgment (issue four). Allison also challenges the amount of
sanctions as excessive and complains that the evidence of attorney’s fees upon
which the sanctions were based was not properly segregated (issue five). We
affirm.
1
See Tex. R. App. P. 47.4.
2
This appeal was originally submitted with oral argument on May 13, 2014.
On February 13, 2015, the appeal was assigned to a new panel and author.
After appellant moved for oral argument before the new panel, the appeal was
resubmitted with oral argument on April 14, 2015.
2
Background
Mindy (Wife) and Alan (Husband) Meeker were married in 2002 and had
two children. During the marriage, Husband worked for businesses “owned
within [his] family or operated by and among family members.” These include the
nontrust appellees 3 (the Companies). In addition, both Husband and his brother
Dan Meeker created trusts (the Trusts) for their minor children. 4 In this opinion,
we will refer to the Companies and the Trusts collectively as the Meeker Entities.
Wife and Husband separated in late summer or fall 2008. On the morning
of November 8, 2008, a Saturday, Wife entered the office of the Meeker Entities. 5
She brought a computer specialist with her. While there, she took documents
related to the Meeker Entities. In addition, although the computer specialist
testified that he tried but failed to install a keylogger program on one of the
computers in the office, a forensic examination of Husband’s computer showed
that spyware had been installed at approximately 10:20 a.m. on November 8,
3
Conglomerate Gas II L.P., Crestview Farm 250 L.P., Crestview Farm,
L.L.C., Crestview Farm, L.L.C. “A Montana LLC,” Crestview Farm Aiken LLC,
The Barnett Shale Water Conservation Co., Conglomerate Gas, L.L.C.,
Conglomerate Gas I, L.P., Conglomerate Holding LLC, Conglomerate Gas III
L.P., and Vancouver Sky Management LLC. The Companies are primarily
owned by the Trusts (defined below). Although Dan Meeker Management, Inc. is
solely owned by Husband’s brother, we will also include it in our references to the
Companies.
4
The David Alan Meeker Family Irrevocable Trust and the Dan H. Meeker
Children’s Irrevocable Trust.
5
The Meeker Entities alleged that Wife’s mother and brother assisted her.
3
2008, during the time Wife and the computer specialist were in the office. Later
that day, Wife met with Allison at his office and gave him at least some of the
documents. Husband and his brother were both out of town when this occurred,
but Husband’s brother discovered the entry the following Monday, November 10,
when he viewed surveillance video for the building.
Allison filed a divorce petition for Wife on November 21, 2008 in the 325th
District Court of Tarrant County. On December 2, 2008, Jason Nash, one of the
attorneys for the Meeker Entities, sent Allison a letter alleging that Wife had
entered their office without consent, installed spyware on a laptop, and taken
documents related to the Meeker Entities; he expressed the Meeker Entities’
demand that all materials taken and all matters intercepted from the laptop be
returned to them. On December 15, 2008, Allison served discovery on each of
the Companies except for Dan Meeker Management, Inc. Two days later, Allison
responded to Nash’s letter: “I am in receipt of your letter and will provide a more
detailed response next week. Until then, any and all documents associated with
this case are being maintained in my office and not being disseminated in any
fashion.” On December 22, 2008, Bill Warren, the Meeker Entities’ lead counsel,
sent a letter acknowledging Allison’s response but continuing to demand the
return of documents and information.
On January 30, 2009, the associate judge in the divorce case––the
Honorable Terri White––issued temporary orders enjoining both parties from
allowing Wife’s boyfriend to be in the children’s presence or to treat them as their
4
pediatrician. Husband became concerned that Wife was violating the order, so
he asked a private investigator to perform surveillance when Wife had
possession of the children.
On February 17, 2009, the Meeker Entities sued Wife, her mother, and her
brother 6 in the 342nd District Court of Tarrant County for claims related to Wife’s
entry of the office in November 2008. They sought a temporary restraining order
as well as damages. In partial response, Allison forwarded the trial court an
original and one copy of “documents in our possession pertaining to
Conglomerate Gas.” In April 2009, the parties agreed that the trial court should
forward those documents to the Meeker Entities’ attorneys.
In May 2009, Wife responded to the Meeker Entities’ discovery by refusing
to answer any questions on Fifth Amendment grounds. On May 14, 2009, Allison
filed a motion to amend the temporary orders in the divorce, seeking among
other things that the trial court enjoin Husband from “[d]irecting private
investigators to follow Wife and/or the children.” Although Associate Judge White
had several hearings related to other specific requests in the motion, she did not
issue a ruling on the request to enjoin the surveillance, and Allison did not bring
the issue to her attention by requesting a hearing or presenting evidence on that
part of the motion. 7 According to an affidavit from Jim Loveless, Husband’s
6
They added the computer specialist in a later petition.
7
Allison described a series of housekeeping-type hearings on the
temporary orders motion taking place over a series of months.
5
divorce attorney, all of the parties, their counsel, the trial court, an amicus
attorney appointed for the children, and a counselor for the children knew about
the ongoing surveillance at the time. Additionally, Loveless averred that while
the parties were working out access issues with the amicus attorney at Judge
White’s direction, the amicus told them not to point out or acknowledge to the
children “the security personnel” who were doing the surveillance.
In August 2009, the presiding judge in the divorce––the Honorable Judith
Wells––signed an order dismissing a master in chancery that she had previously
appointed but indicating that she would re-appoint one if additional discovery
issues arose. She also clarified a prior ruling she had made that Wife could not
conduct discovery related to the Companies until Wife proved that there was a
community property interest in them.
In November 2009, the trial court in the instant suit denied a motion for
summary judgment that Wife had filed on behalf of all the then-named
defendants. Thereafter, the Meeker Entities filed a Third Amended Petition.
Meanwhile, in the divorce case, Judge Wells heard a second motion to end
the surveillance and verbally ordered the surveillance to cease; she signed an
order to that effect on April 6, 2010, also ordering Husband to request the trustee
of his children’s trust to stop paying for any surveillance. The evidence shows
that the surveillance could have ended as early as December 31, 2009 but no
later than February 12, 2010.
6
On June 15, 2010, while the parties were present at the courthouse
negotiating terms in an attempt to settle before the final divorce trial, Wife
terminated Allison’s representation of her in the divorce. She retained Barbara
Nunneley, who had been Allison’s co-counsel, solely for the purpose of assisting
her with the settlement and any associated paperwork. Wife and Husband
entered into an informal rule 11 agreement, resolving all issues in the divorce.
Judge Wells allowed Allison’s withdrawal and the substitution of Nunneley and
approved the rule 11 agreement. Tex. R. Civ. P. 11.
During the prove-up of the rule 11 agreement, Loveless told Judge Wells
that “there would be mutual[] releases executed between” representatives of the
Meeker Entities, Wife’s mother and brother, and Wife and that Warren had
already prepared a release document and would circulate it the next day.
Loveless represented that the agreement would end “all the litigation that’s within
the Meeker family and in [Wife’s] family.” Nunneley agreed with Loveless’s
description of the agreement. The rule 11 agreement contained the following
about the release:
Communication has been made to counsel for the trust (and
trust entities) as to whether or not the trust and trust entities will
execute a mutual release of all claims and civil liabilities that may
have been claimed or could have been claimed in the past or
present and to enter a dismiss[al] with prejudice of the lawsuit
pending in the 342nd Judicial District Court. This release is separate
from this agreement.
Warren emailed the release to Loveless three days later, and Loveless
forwarded the email to Nunneley. Because Warren had not heard from
7
Nunneley, he called her on July 6, 2010. Nunneley told Warren that Wife was
supposed to be coming into her office, so he emailed Nunneley an amended
release draft the next day. In his email, he noted (1) that it had “recently become
[his] understanding that [Wife], at some point, approached another lawyer(s) to
put together yet another lawsuit against the trust and/or its entities” and (2) that
he had accordingly amended the release document to broaden its scope and to
add Wife’s “acknowledgement that the Trustee and Co-Trustee of the David Alan
Meeker Family Irrevocable Trust have not breached their duties and obligations
owed under the trust document, that after receiving an accounting the amicus
attorney decided not to allege any claim against them in the family court
proceeding, and that [Wife] agrees with that decision of the amicus attorney.”
Warren never received any response about the release.
On July 26, 2010, Warren faxed Allison a letter inquiring whether he was
still the attorney in charge for Wife in this suit. Allison responded by fax on July
28, 2010, stating only, “In response to your correspondence yesterday, please be
advised I am still representing [Wife] in connection to this matter.”
On July 29, 2010, Allison filed a claim for Wife in this suit against the
Meeker Entities alleging claims for intrusion of privacy (seclusion) and aiding and
abetting, 8 related to the surveillance that had taken place during 2009 and
possibly the early part of 2010. She also named one of the private investigators
8
We have collectively referred to Wife’s claim as her invasion of privacy
claim.
8
who had performed the surveillance––Clifford W. Ginn––as a third party
defendant. In the filing, Wife pled as follows: (1) “Counter-Plaintiff [Wife] is
followed, spied upon, harassed and placed in danger by Counter-Defendant’s
conduct”; and (2) “Counter-Defendant’s intrusions have placed Counter-Plaintiff
in danger and without court relief [she] will remain in danger.” [Emphasis added.]
She also pled for both damages and injunctive relief.
On August 6, 2010, Nunneley wrote Loveless and Warren stating that her
representation of Wife had ended with the signing of a Corrected Final Decree of
Divorce on August 4, 2010.
On September 20, 2010, the Meeker Entities filed a motion for traditional
summary judgment, claiming that they had conclusively proven their claims
against Wife and the other defendants. They also sought a summary judgment
on Wife’s invasion of privacy counterclaim. Ginn also filed a motion for summary
judgment with his answer to the invasion of privacy claim. The Meeker Entities
and Ginn also filed separate motions for sanctions against both Wife and Allison.
Both motions for sanctions alleged violations of both chapter 10 of the civil
practice and remedies code and rule 13. Tex. Civ. Prac. & Rem. Code Ann.
§§ 10.001–.006 (West 2002); Tex. R. Civ. P. 13.
Allison filed Wife’s response to the motions for summary judgment in
October 2010 and attached a document purporting to be a sworn affidavit from
Wife (the Purported Affidavit). In it, she attempted to explain that she had not
entered the Meeker Entities’ office without permission, that she was only looking
9
for evidence of the community estate because all of her and Husband’s personal
paperwork had been kept at the offices, and that she had only accessed
Husband’s laptop, not anyone else’s. She denied having put spyware on any
laptop or taking any items with her when she left. The Purported Affidavit also
contained representations that no one had permission to follow her, that her
children had been having nightmares because of the surveillance, that she had
lost friends because of it, and that it was causing her to be fearful. Finally, the
Purported Affidavit also contained this statement, “When the divorce was settled
by agreement on June 15, 2010, both [Husband] and his attorneys agreed as
part of the divorce that this case and all claims against me in this case would be
dismissed.”
The trial court held a hearing on appellees’ motions for summary judgment
on October 22, 2010 but did not rule and instead took the motions as well as their
motions for sanctions under advisement.
In March 2011, the trial court granted summary judgment for the Meeker
Entities on their claims against Wife and also granted summary judgment for all
appellees on Wife’s invasion of privacy claim. The trial court initially set a trial on
damages for April 2011, but Wife asked for it to be continued. At the hearing on
her motion for continuance, Wife told the trial court, for the first time, that Allison
had filed documents in the suit without her permission and that she had not
communicated with Allison since August or September 2010. In the midst of
10
these settings and hearings on continuance motions, Allison filed a motion to
withdraw from representing Wife in this suit.
On May 23, 2011, the Meeker Entities entered into an agreed judgment
with Wife’s mother and brother in which Wife’s mother and brother agreed to be
permanently enjoined from entering property owned or controlled by the Meeker
Entities, Husband, or Husband’s brother. The next day, Wife filed a notice of
nonsuit of her invasion of privacy claim. Although Wife sought a continuance of
the trial on damages on the Meeker Entities’ claims against her that same day,
the trial court denied it and proceeded to hear testimony over a two-day period.
In June 2011, the Meeker Entities filed an amended motion for sanctions.
In his response, Allison pled that Wife had “represented to [him] . . . that the civil
litigation had also been resolved in the divorce settlement and nothing more
would be need[ed] for that litigation. That proved not to be true when in
September 2010, [Husband] filed a No Evidence Summary Judgment, to which
. . . Allison prepared and filed a timely response on October 14, 2010.”
[Emphasis added.] He also attached email correspondence between Wife and
his paralegal indicating that Wife had signed and faxed back her purported
affidavit to the paralegal the same day it was filed with the summary judgment
response.
On June 30, 2011, the trial court signed a judgment awarding the Meeker
Entities damages for Wife’s violations of the Texas Theft Liability Act, harmful
access by computer, and trespass.
11
The trial court heard the motions for sanctions on four separate days from
June through October 2011. Ultimately, 9 the trial court signed a twenty-page
order containing detailed findings. The trial court ordered (1) Wife individually to
pay sanctions of $6,324 for agreeing to but failing to attend one of the sanctions
hearings and for filing, withdrawing, and failing to attend a hearing on a motion
for new trial that she had filed pro se, (2) Allison individually to pay sanctions of
$2,967.24 for filing the Purported Affidavit in response to appellees’ summary
judgment motions, and (3) Wife and Allison to pay jointly and severally $16,758
in sanctions for the Meeker Entities’ reasonable and necessary attorney’s fees––
and $18,600 for Ginn’s reasonable and necessary attorney’s fees and lost time––
in defending the invasion of privacy claim and in bringing and presenting their
motions for sanctions. 10 The trial court signed an amended final judgment
incorporating the sanctions and an order nonsuiting Wife’s invasion of privacy
claim.
Standard of Review and Applicable Law on Sanctions
Appellees moved for sanctions under rule 13 and chapter 10 of the civil
practice and remedies code. Tex. Civ. Prac. & Rem. Code Ann. §§ 10.001–.006;
Tex. R. Civ. P. 13. We review a sanctions award under either of these
9
The trial court vacated the June 30, 2011 judgment on the last day of
plenary power so that it could include the sanctions in its final judgment.
10
We do not address the propriety of sanctions as to Wife because she did
not appeal. See State Office of Risk Mgmt. v. Foutz, 279 S.W.3d 826, 829 (Tex.
App.––Eastland 2009, no pet.).
12
authorities for an abuse of discretion. Nath v. Tex. Children’s Hosp., 446 S.W.3d
355, 361 (Tex. 2014). A sanctions award that fails to comply with due process
constitutes an abuse of discretion because a trial court has no discretion in
determining what the law is or applying the law to the facts. Id. But a trial court
does not abuse its discretion by awarding sanctions if some evidence supports
its decision. Id.
Section 10.001 of the civil practice and remedies code provides that a
signatory to a pleading attests that
(1) the pleading or motion is not being presented for any
improper purpose, including to harass or to cause unnecessary
delay or needless increase in the cost of litigation;
(2) each claim, defense, or other legal contention in the
pleading or motion is warranted by existing law or by a nonfrivolous
argument for the extension, modification, or reversal of existing law
or the establishment of new law;
(3) each allegation or other factual contention in the pleading
or motion has evidentiary support or, for a specifically identified
allegation or factual contention, is likely to have evidentiary support
after a reasonable opportunity for further investigation or discovery;
and
(4) each denial in the pleading or motion of a factual
contention is warranted on the evidence or, for a specifically
identified denial, is reasonably based on a lack of information or
belief.
Tex. Civ. Prac. & Rem. Code Ann. § 10.001. A trial court may monetarily
sanction only an attorney who files an unfounded pleading under section
10.001(2) and not a represented party. Id. §§ 10.001(2), 10.004(a), (d).
Pleadings that are groundless and also filed either (1) in bad faith, (2) with the
13
intent to harass, or (3) with the knowledge of their falsity when made are also
sanctionable under rule 13. Tex. R. Civ. P. 13; Nath, 446 S.W.3d at 362–63.
Generally, courts presume pleadings and other papers are filed in good
faith. Nath, 446 S.W.3d at 361. The party seeking sanctions bears the burden of
overcoming this presumption of good faith. Id.
Propriety of Sanctions For Filing Invasion of Privacy Claim
In his first through third issues, Allison challenges the award of sanctions
for filing the invasion of privacy claim under both chapter 10 and rule 13. But
because either a finding of groundlessness or improper purpose can support a
sanctions award under chapter 10––as opposed to both findings being necessary
to impose sanctions under rule 13––we will first review the propriety of sanctions
under chapter 10. See, e.g., id. at 366 n.14 (“While bad faith must be coupled
with groundless pleadings to support sanctions under Rule 13, an improper
purpose alone is a sufficient predicate for sanctions under Chapter 10.” (citations
omitted)); Bennett v. Reynolds, No. 03-12-00568-CV, 2014 WL 4179452, at *13
(Tex. App.––Austin Aug. 22, 2014, pet. denied) (mem. op.) (“In other words,
Chapter 10 authorizes sanctions where a lawyer or party files a pleading that is
either groundless or brought for an improper purpose, and does not require
both.”).
In an appeal from a bench trial, the trial court’s findings of fact have the
same force and effect as jury findings. Anderson v. City of Seven Points, 806
S.W.2d 791, 794 (Tex. 1991). Because Allison has not challenged specific
14
findings of fact, they are binding on this court unless there is no evidence to
support them or the contrary is established as a matter of law. McGalliard v.
Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986). When the appellate record
contains a reporter’s record, findings of fact on disputed issues are not
conclusive and may be challenged for sufficiency of the evidence. Sixth RMA
Partners, L.P. v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003); Fraser v. Purnell, No.
05-13-01269-CV, 2015 WL 4481702, at *3 (Tex. App.—Dallas July 23, 2015, no
pet. h.) (mem. op.). Allison contends that there is no evidence to support the trial
court’s finding that he filed Wife’s invasion of privacy claim for an improper
purpose.
In their pleadings and at the sanctions hearing, appellees focused on the
timing of the filing of the invasion of privacy claim in contending that it was
brought for an improper purpose. See, e.g., Harden v. Merriman, No. 02-12-
00385-CV, 2013 WL 5874708, at *7 (Tex. App.––Fort Worth Oct. 31, 2013, no
pet.) (mem. op.) (citing authorities that under chapter 10 and rule 13, relevant
time period for court to consider is when pleading is filed). The evidence showed
that in discharging Allison and settling the divorce in June 2010, Wife agreed to
accept a payment of $100,000 from Husband in lieu of Husband’s paying directly
to Allison $100,000 in fees that Judge Wells had previously ordered Husband to
pay Allison in a temporary order. Allison testified that after the settlement but
before he filed the invasion of privacy claim, Wife contacted him and agreed to
pay him the $100,000 when she received it from Husband in exchange for
15
Allison’s remaining her counsel in this suit. Allison also testified that Wife had a
hard time collecting the $100,000 and that Husband had instead paid it into the
divorce court’s registry and “began to charge all kinds of things against her when
she was unrepresented.”
Allison testified that he filed the invasion of privacy claim in this suit
because he could not file it in the divorce as a result of Judge Wells’s order
prohibiting discovery from the Companies. But in his response to the amended
sanctions motion, Allison asserted that Wife told him that “nothing more would be
need[ed] for [this] litigation.” He then attributed the continuation of this suit to the
Meeker Entities’ filing of their motion for summary judgment even though it was
filed after he filed the invasion of privacy claim for Wife.
The trial court made the following finding pertinent to the invasion of
privacy claim: 11
Allison’s and [Wife’s] contention that [Wife] actually suffered mental
anguish is undermined by Allison’s admission that neither of them
pursued their request in the Divorce Proceeding that the surveillance
be discontinued until early February 2010. Indeed, the fact that the
request was first made in March 2009, but never pursued until
almost a year later, renders [Wife’s] and Allison’s testimony with
respect to any alleged mental anguish not credible. [Footnote
omitted.]
11
Although this finding of fact was included in the findings related to
whether the invasion of privacy claim was groundless, it nevertheless also
pertains to the findings in the bad faith/improper purpose section of the order.
16
As a result, it concluded the following:
3. In addition, [Wife] and Allison both claimed that the
[Meeker Entities’] claims were released by a mutual release entered
on or about June 15, 2010. Nonetheless, they brought the invasion
of privacy claim even though [appellees’] underlying acts all occurred
before the mutual release was allegedly entered. Either they
believed the mutual release was effective or they believed it was not.
....
7. Several aspects of the status of events weigh in favor of a
bad faith and/or harassment finding. Though this case has been
pending since February 2009 (shortly after the surveillance began),
[Wife] and Allison never chose to assert the [i]nvasion of [p]rivacy
claim in this matter until July 29, 2010; this was five months after the
discovery period ended and just one month before the second trial
setting. Moreover, they brought the claim after [Wife] entered what
both she and Allison later claimed was a valid mutual release of all
claims between the parties. Then after filing the new claim, [Wife]
and Allison used it as a reason to delay the impending trial date.
[Internal citations omitted.]
We conclude and hold that the evidence supports the trial court’s findings
and conclusions that the invasion of privacy claim was brought in bad faith or for
the improper purposes of harassment or delay. If, as Allison and Wife
contended, they thought that the parties had agreed to a binding mutual release
of claims such that “nothing more would be need[ed]” in this suit, there was no
reason to bring the invasion of privacy claim. See Nath, 446 S.W.3d at 360–61
(concluding that evidence that irrelevant pleading against third party had been
filed to leverage a settlement with original defendants was evidence of improper
purpose); see also Nolte v. Flournoy, 348 S.W.3d 262, 269–70 (Tex. App.––
Texarkana 2011, pet. denied) (holding that suit filed in response to counteroffer
17
for purchase of property with disputed ownership was filed for improper purpose
of attempting to obtain better price); Trantham v. Isaacks, 218 S.W.3d 750, 754–
55 (Tex. App.––Fort Worth, pet. denied) (holding that filing suit in attempt to
preclude potential liability for negative public statements about political opponent
through pleadings, or in attempt to have court resolve political debate, was
improper under section 10.001(1)), cert. denied, 552 U.S. 892 (2007). Much of
the pleading is written in the present tense, as if the surveillance were still
ongoing, and one of the types of the relief requested is an injunction. Neither
Allison nor Wife presented evidence––or even contended––that any surveillance
occurred after Judge Wells ordered that it be ceased.
And, finally, the following evidence supports the conclusion that at the time
the invasion of privacy claim was filed, it was not filed because of a need to end
the surveillance or compensate Wife for mental anguish damage caused by the
surveillance: (1) the delay in asking the divorce court to stop the surveillance;
(2) the delay in filing the invasion of privacy claim in this suit; (3) evidence that
Wife had waved to and conversed with the detectives performing the surveillance
while it was ongoing; and (4) in the summer of 2009 the parties had worked out
with the amicus attorney how best to discuss the surveillance with the children.
Indeed, the evidence supports a conclusion that the claim was filed as an attempt
to salvage some cash from the divorce that Allison and Wife were not otherwise
going to be paid. Filing a claim after the discovery period had ended in an
attempt to delay until a settlement could be reached would fall within the ambit of
18
sanctionable conduct described by section 10.001(1). See, e.g., Nath, 446
SW.3d at 360–61. Accordingly, we conclude and hold that the trial court did not
abuse its discretion by awarding sanctions against Allison under section
10.001(1). We overrule Allison’s third issue. 12
Propriety of Sanctions for Sponsoring Purported Affidavit
In his fourth issue, Allison claims that there is no evidence supporting the
trial court’s award of sanctions for filing Wife’s response to the motion for
summary judgment with the defective Purported Affidavit attached.
The trial court’s extensive fact findings show that the judge did not believe
Wife’s representations at the motion for continuance hearings, and at one of the
sanctions hearings, that she had either never seen or signed the Purported
Affidavit or had signed only a blank page and returned it. Instead, the trial court
found that Wife signed the Purported Affidavit between October 11 through
October 14, 2010, but not before the notary, and that she did not swear to its
contents.
The trial court also found that the Purported Affidavit “played a central role
in [Wife] and Allison’s efforts to avoid summary judgment” and “[b]ecause of its
role in attempting to defeat summary judgment, and because [appellees] had no
way of knowing that the ‘affidavit’ was simply unsworn, inadmissible hearsay,
12
Because his third issue is dispositive of the propriety of the sanctions
award regarding the invasion of privacy claim, we need not address his first and
second issues contending that there is no evidence that the claim was
groundless. See Tex. R. App. P. 47.1.
19
their counsel prepared and filed various objections to the Purported Affidavit and
a reply brief addressing why summary judgment should nonetheless be granted.”
The trial court also made the following pertinent conclusions of law:
9. When attempting to defeat the [Meeker Entities’] motion for
summary judgment, Allison filed [Wife’s] “Purported Affidavit.” Allison
represented both in his pleading and in court that the document was
a true “affidavit.” Allison made these representations even though
[Wife] never swore to the document’s contents and such contents
were altered between the time [Wife] received it and the time it was
filed. 13
10. In addition, documents filed by Allison and/or persons
working under his authority have made various, inconsistent
representations to this Court concerning the document’s creation
and notarization. Specifically, such pleadings and attachments claim
that [Wife] signed the document on October 11; that she signed the
document on October 12; that she signed the document on October
13; and that she signed the document in person before Allison’s
paralegal and notary, Smith. None of these representations are
true.
11. Further, the document trail establishes that Allison
allowed his paralegal to notarize the document illegally, and then
submitted it to this Court to support a summary judgment response;
in short, he submitted a document as an “affidavit,” but failed to
disclose it was materially defective and facially misleading.
12. Though Allison contends that he was unaware that the
document was not properly sworn, such would not change the
Court’s conclusions. First, in light of the evidence, the Court simply
does not find such testimony credible. Second, Texas Disciplinary
Rule of Professional Conduct 5.03 requires a lawyer to ensure that
the conduct of nonlawyers under his supervision is compatible with
the lawyer’s professional obligations. Texas case law has long-
required the same. Moreover, the best that can be said of Allison’s
13
The evidence showed that Allison’s paralegal made nonsubstantive
revisions to the body of the Purported Affidavit after Wife sent her the signed
version.
20
conduct is that he recklessly allowed those working directly under
him to receive an unsworn, faxed copy of an intended affidavit; make
changes to the body of the affidavit; notarize the document after the
fact; and then file it with the court with nothing to reflect its myriad of
shortcomings. Such behavior simply cannot escape sanction.
13. Moreover, supervising lawyers are required to take
remedial steps upon learning of a nonlawyer’s misconduct. On this
record, it does not appear that Allison took any remedial step at any
time up through and including the conclusion of this sanctions
hearing. [Internal citations and footnote omitted.]
Allison contends that there is no requirement that a person sign an affidavit
in a notary’s physical presence. The government code defines an affidavit as “a
statement in writing of a fact or facts signed by the party making it, sworn to
before an officer authorized to administer oaths, and officially certified to by the
officer under his seal of office.” Tex. Gov’t Code Ann. § 312.011(1) (West 2013).
That definition contains the statutory requirements for an affidavit. Mansions in
the Forest, L.P. v. Montgomery Cnty., 365 S.W.3d 314, 316 (Tex. 2012). When
an affidavit meets the government code’s requirements, it may be presented as
summary judgment evidence if it also complies with rule of civil procedure
166a(f). See Tex. R. Civ. P. 166a(f); Mansions in the Forest, L.P., 365 S.W.3d at
316. When a written statement does not meet this basic definition, however, it is
“no affidavit at all.” Mansions in the Forest, L.P., 365 S.W.3d at 316.
In the absence of any statutory definition, we are to give words used in a
statute their common meanings unless a different meaning is apparent from the
context or such a construction leads to absurd or nonsensical results. Ross v.
St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 501 (Tex. 2015). Webster’s Third
21
New International Dictionary defines “before” as “in the presence of[,] face to face
with.” Webster’s Third New International Dictionary 197 (2002). It would not be
out of context with other statutes to construe the word “before” in the phrase,
“sworn to before an officer authorized to administer oaths,” as requiring that an
affidavit must be sworn to in the officer’s physical presence. See Tex. Civ. Prac.
& Rem. Code Ann. §§ 121.003(1), .004(a), .006(b)(1) (West 2011) (relating to the
acknowledgement of a document “before” a notary); Tex. Gov’t Code Ann.
§ 406.009(a), (d)(5) (West 2013), as amended by Act of May 25, 2015, 84th Leg.,
R.S., ch. 766, § 2, 2015 Tex. Sess. Law Serv. 2316, 2317 (West) (providing that
Secretary of State has good cause to suspend or revoke the commission of a
notary public for “performing any notarization when the person for whom the
notarization is performed did not personally appear before the notary at the time
the notarization is executed”); cf. Smith v. State, 207 S.W.3d 787, 790–91 (Tex.
Crim. App. 2006) (distinguishing affiant’s signature as memorialization of fact that
oath was taken, not as oath itself, and discussing purpose of oath in context of
code of criminal procedure requirement that search warrant affidavit be sworn to,
noting that the purpose of the administration of an oath is to call upon the
affiant’s moral duty to tell the truth and instill a sense of seriousness and
responsibility regarding that oath). Likewise, neither would such a construction
lead to absurd or nonsensical results.
22
Moreover, although an affidavit is not required to have a jurat affixed to
meet the statutory definition of an affidavit, 14 the Purported Affidavit contained
one signed by the notary stating that Wife had both signed and sworn to the
affidavit “before” the notary. Thus, even if government code section 312.011(1)
does not require an affiant to swear to the affidavit’s truth in the physical
presence of a notary, the jurat on the Purported Affidavit falsely claimed that Wife
had done so. See Olsen v. Comm’n for Lawyer Discipline, 347 S.W.3d 876,
883–84 (Tex. App.––Dallas 2011, pet. denied) (describing jurat on purported self-
proving will as “false” when witness did not sign in notary’s physical presence as
stated in the jurat). Nothing in the evidence shows that Wife swore to the truth of
the Purported Affidavit’s contents before the notary.
The evidence supports the trial court’s findings and conclusions. Allison
testified about the difficulty he and his paralegal had getting Wife to come by his
office to sign an affidavit to attach to the summary judgment response. Although
Allison testified that he needed to file a response by the deadline set forth in the
rules, he acknowledged that he could have filed a motion seeking leave to file a
late response. He consistently testified that he had no specific memory of when
Wife signed the Purported Affidavit other than what his fax and email records
showed. However, he also testified that he did not believe Wife signed and faxed
the affidavit to his paralegal and then drove to his office to swear to its contents.
14
Tex. Gov’t Code Ann. § 312.011(1); Mansions in the Forest, L.P., 365
S.W.3d at 316; see also Tex. R. Civ. P. 166a(f).
23
Allison said that if he followed his usual procedure, he finalized the form of the
motion on the morning of October 14, 2010 before leaving the office to go to the
courthouse and left the finalizing and execution of the Purported Affidavit to his
paralegal, who would have obtained a signed version of the Purported Affidavit
and filed it with the summary judgment response that same day. Thus, the
evidence supports a conclusion that Allison––who testified that he drafted the
Purported Affidavit that included the jurat––should have known that his paralegal
could not have accomplished having Wife swear to the Purported Affidavit in her
presence before filing the response.
That Allison did not personally witness the manner in which the Purported
Affidavit was obtained and attached to the response that his paralegal filed does
not absolve him of responsibility for its filing. See Tex. Disciplinary R. Prof’l
Conduct, 5.03, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A (West
2013) (describing lawyer’s responsibilities regarding nonlawyer assistants); cf.
Big Country Elec. Co-op, Inc. v. Hill, No. 11-09-00368-CV, 2011 WL 5307858, at
*3 (Tex. App.––Eastland Nov. 3, 2011, no pet.) (mem. op.) (acknowledging, in
holding that sanctions could not be assessed against client for paralegal’s
conduct, that attorney could be held responsible for that conduct). Allison
testified that he relied on his paralegal’s knowledge of how the Purported
Affidavit was executed to determine whether to file it; if she had told him that Wife
did not need to sign it in her presence for it to be valid, he would have filed it. But
Allison was responsible for ensuring that what he attached to the summary
24
judgment response as affidavit evidence was truly what he represented it to be.
Cf. Sellers v. Foster, 199 S.W.3d 385, 401–02 (Tex. App.––Fort Worth 2006, no
pet.) (holding that trial court did not abuse its discretion by determining that
attorney who relied on her assistant to send expert report but did not confirm that
assistant did so was consciously indifferent in failing to file report timely).
Additionally, he argues that he cannot be held responsible for his
assistant’s actions in improperly notarizing the document because he does not
have supervisory authority over a notary. However, the trial court’s concern was
with the paralegal’s filing of the summary judgment response with the Purported
Affidavit attached, and Allison’s failure to attempt to remedy the matter after it
was discovered, not Allison’s supervision of the paralegal in her notarial duties.
Allison specifically testified that he relied on his paralegal, at his direction, to file
the document in the proper form. Additionally, he personally signed the
response, which stated that “[t]his response depends on the following evidence
included in the appendix: a. Affidavits. Affidavit of Mindy Meeker as Exhibit ‘A’.”
Even after researching how the Purported Affidavit was signed and returned, and
finding the fax copy that Wife signed and returned on October 14, 2010, the day
the Purported Affidavit was filed with the summary judgment response, Allison
never attempted to amend the response with a properly sworn affidavit or
withdraw the Purported Affidavit. 15
15
We recognize that by the time Allison was able to investigate the alleged
problems Wife raised with the Purported Affidavit, Wife was no longer
25
Accordingly, we conclude and hold that the evidence supports the trial
court’s conclusion that the Purported Affidavit was filed for an improper purpose,
namely to avoid summary judgment on both the merits of the Meeker Entities’
claims but also to avoid a dismissal of the invasion of privacy claim that had
likewise been improperly filed to leverage Wife’s position in this suit. See
Skepnek v. Mynatt, 8 S.W.3d 377, 380–83 (Tex. App.––El Paso 1999, pet.
denied) (affirming sanctions against attorney who filed special appearance with
affidavit containing false statements attached). We overrule Allison’s fourth
issue.
Reasonableness of Sanctions Award
In his fifth issue, Allison contends that the sanctions award for filing the
Purported Affidavit is excessive, that the evidence of the Meeker Entities’
attorney’s fees was not properly segregated between fees related to his conduct
versus Wife’s, and that neither the record nor the trial court’s sanctions order
identifies a nexus between the fees awarded as sanctions and the underlying
conduct. He also challenges the award of $3,000 for Ginn’s lost time in
researching the claim and attending hearings.
Sanctions must not be either unjust or excessive. Nath, 446 S.W.3d at
363. A complaint that sanctions are unjust or excessive must be raised at trial.
cooperating with him and Allison had sought to withdraw. However, he continued
to maintain that the Purported Affidavit was competent summary judgment
evidence.
26
See Tex. R. App. P. 33.1(a)(1); The Shops at Legacy (Inland) Limited P’ship v.
Fine Autographs & Memorabilia Retail Stores, Inc., No. 05-14-00889-CV, 2015
WL 2201567, at *2–3 (Tex. App.––Dallas May 8, 2015, no pet. h.) (mem. op.);
Gott v. Rice Consol. ISD, No. 01-07-00051-CV, 2008 WL 4670257, at *8 (Tex.
App.––Houston [1st Dist.] Oct. 23, 2008, no pet.) (mem. op.). Allison did not
complain about the excessiveness of the sanctions award in the trial court.
Moreover, his argument on appeal regarding excessiveness addresses the
merits of the imposition of sanctions against him rather than Wife, not the amount
of fees awarded; we have already concluded that the trial court’s imposition of
sanctions against Allison was supported by the evidence of his conduct. Thus,
we conclude that Allison has not preserved his excessiveness complaint, apart
from his complaint on the underlying merits of the imposition of sanctions, for
review.
But Allison did file written objections to Warren’s attorney’s fees affidavit as
well as the affidavit of Ginn’s counsel Robert W. Bush in which Allison
complained about the attorneys’ failure to segregate their fees between fees
related to his conduct and fees related to Wife’s with respect to the filing of both
the invasion of privacy claim and the Purported Affidavit. Allison cites Glass v.
Glass, in which the court reversed an award of sanctions against the client for
her attorneys’ actions in filing frivolous pleadings. 826 S.W.2d 683, 688–90 (Tex.
27
App.––Texarkana 1992, writ denied). 16 However, depending on the facts
adduced in a sanctions proceeding, a trial court may be justified in finding that
both the attorney and client were responsible for filing––and causing to be filed––
a sanctionable pleading. See Tex. Civ. Prac. & Rem. Code Ann. § 10.004(a) (“A
court that determines that a person has signed a pleading or motion in violation
of Section 10.001 may impose a sanction on the person, a party represented by
the person, or both.”); Sluder v. Ogden, No. 03-10-00280-CV, 2011 WL 116058,
at *4 (Tex. App.––Austin Jan. 13, 2011, pet. denied) (mem. op.) (holding that trial
court could have reasonably determined that client was complicit in filing of
frivolous suit, thereby justifying sanctions against both attorney and client).
According to Allison, the record shows that most of the misconduct was
Wife’s and that he could not be jointly and severally liable for the “entire
sanctions proceedings when he was her target and not her ally.” We have set
forth the trial court’s findings and conclusions in detail, which we have concluded
are supported by the evidence. The trial court found that even though both Wife
and Allison said they believed all claims in the suit had been released, they
nevertheless were responsible for the subsequent filing of the invasion of privacy
16
Allison also cites Metzger v. Sebek, 892 S.W.2d 20 (Tex. App.––Houston
[1st Dist.] 1994, writ denied), cert. denied, 516 U.S. 868 (1995), in support of his
argument. But that court did not hold that a party could not be sanctioned jointly
and severally with counsel when both of them had committed misconduct in
signing a pleading; instead, that court held that imposing joint and several liability
of $994,000 was excessive in light of Metzger’s one act of lying in an affidavit.
Id. at 52–53.
28
claim and Purported Affidavit. Contrary to Allison’s arguments on appeal, the
trial court clearly set forth the conduct it believed Allison engaged in with respect
to both filings that was improper. And the effect of both Allison’s and Wife’s
conduct was the same: not only were the Meeker Entities forced to go forward
on claims they had agreed to release––because the invasion of privacy claim
was filed before they filed their motion for summary judgment in this case, thus
leaving them little choice in light of the fact that Wife did not sign the release––
they also had to research and defend the invasion of privacy claim, including the
propriety of the Purported Affidavit. 17 Allison did not testify, nor does he contend
on appeal, that he filed either the invasion of privacy claim or Purported Affidavit
for Wife against his will. The same reasoning likewise applies to Ginn;
additionally, because he was brought into the suit solely because of the invasion
of privacy claim, there was no need to segregate his fees further. See Tex. Civ.
Prac. & Rem. Code Ann. § 10.004(c)(3); Softech Int’l, Inc. v. Diversys Learning,
Inc., No. 03-07-00687-CV, 2009 WL 638203, at *7 (Tex. App.––Austin Mar. 13,
2009, no pet.) (mem. op.). Because the trial court’s sanctions award for the filing
of the Purported Affidavit was based on the costs and fees incurred by Ginn and
17
Allison contends that the fact that the Purported Affidavit was not sworn
is immaterial because Wife had already submitted a substantially similar affidavit
in connection with the motion to end the surveillance in the divorce proceeding.
But because an unsworn document is not an affidavit––and therefore not
evidence for summary judgment purposes––appellees would not have needed to
reply to Allison’s response to prevent a denial of their motion for summary
judgment had they known the Purported Affidavit was not what Allison had
represented it to be.
29
the Meeker Entities as a direct result of both Allison’s and Wife’s sanctionable
conduct as described above––and likewise described with particularity in the
detailed sanctions order––we hold that the trial court did not abuse its discretion
in ordering Allison and Wife to pay the sanctions jointly and severally. See
Bennett, 2014 WL 4179452, at *15; Softech Int’l, Inc., 2009 WL 638203, at *7;
Thottumkal v. McDougal, 251 S.W.3d 715, 718 (Tex. App.––Houston [14th Dist.]
2008, pet. denied).
Allison also complains that the trial court’s order cites no authority for the
award of $3,000 to Ginn for his lost time, which we construe as an argument that
there is no evidence to support Ginn’s lost time as a basis for recovery.
However, civil practice and remedies code section 10.004(c)(3) allows a trial
court to award a party “reasonable expenses incurred by the other party because
of the filing of the pleading or motion.” Tex. Civ. Prac. & Rem. Code Ann.
§ 10.004(c)(3). Ginn testified that he expended personal time researching the
facts alleged by Wife in her invasion of privacy claim. 18
Finally, Allison contends that the attorney’s fees awarded as sanctions
improperly include $95,820.41 in attorney’s fees awarded to the Meeker Entities
separately for prevailing on their motion for summary judgment. Allison did not
raise this complaint in the trial court; therefore, he failed to preserve it for review.
18
Allison has not challenged the sufficiency of the evidence to support the
amount of the lost time award.
30
See Tex. R. App. P. 33.1(a)(1); Holland v. Hayden, 901 S.W.2d 763, 765 (Tex.
App.––Houston [14th Dist.] 1995, writ denied).
Accordingly, we overrule Allison’s fifth issue.
Conclusion
Having overruled Allison’s dispositive issues, we affirm the trial court’s
sanctions order against Allison.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; WALKER and GABRIEL, JJ.
DELIVERED: August 31, 2015
31