Sue Walston v. David L. Lockhart and Rebecca G. Lockhart ( 2005 )

IN THE

TENTH COURT OF APPEALS

No. 10-03-00183-CV

Sue Walston,

                                                                      Appellant

 v.

David L. Lockhart and

Rebecca G. Lockhart,

                                                                      Appellees

From the 19th District Court

McLennan County, Texas

Trial Court # 2003-365-1

MEMORANDUM Opinion

        Sue Walston, appearing pro se, filed a bill of review concerning a 1994 judgment to partition her former home, seeking the return of her property.  The trial court dismissed her case with prejudice and enjoined her from filing another lawsuit regarding the property.  Walston appeals the judgment.  We affirm.

Procedural History

          Given the issues raised on appeal, it is necessary to relate the extensive procedural history of this case.

          In 1992, Walston and her husband, Larry, filed for a divorce.  In 1994, a final decree of divorce was entered, and Walston appealed the property division.[1]  While the appeal was pending, Larry filed a separate suit to partition the homestead.  The trial court appointed a receiver to sell the homestead pursuant to the divorce decree.  Subsequently, Walston appealed the appointment of the receiver; however, Walston did not file a supersedeas bond.  While her appeal was pending, Walston filed three motions for leave to file a petition for a writ of mandamus seeking to halt the partition.  We denied leave to file each time.

          In February of 1995, the receiver sold the property to David and Rebecca Lockhart.  Subsequently, the trial court discharged the receiver and closed the receivership.  Because the receivership had ended, Walston’s appeal of the appointed receiver was moot, and we dismissed the appeal for want of jurisdiction.  Walston v. Walston, No. 10-94-169-CV, No. 10-94-251-CV (Tex. App.—Waco June 14, 1995, writ denied) (not designated for publication).

          Four years later, Walston filed suit against the Lockharts and Larry claiming trespass to try title and seeking the return of her property.  She claimed that the contract for sale between the receiver and the Lockharts terminated before the sale of the property because the Lockharts did not obtain financing by the effective date.  Consequently, she argued that the receiver acted outside the scope of his authority by proceeding with the sale despite the termination of the contract, and that therefore, the deed was void.  In 2001, the trial court granted the Lockharts’ motion for summary judgment.  Walston appealed the summary judgment, however we dismissed her appeal finding that Walston did not have standing to complain about the receiver’s sale in an independent cause of action.  Walston v. Lockhart, 62 S.W.3d 257 (Tex. App.—Waco 2001, pet. denied).  Walston’s petition for review and motion for rehearing were both denied by the Texas Supreme Court.  Thereafter, Walston filed a writ of certiorari with the United States Supreme Court on the issue of whether the Texas system of electing the judiciary violates due process when the judiciary is supported by campaign contributions from parties who have an interest in proceedings before the court. In 2002, the writ was denied as was Walston’s motion for rehearing.  Walston v. Lockhart, 537 U.S. 1067, 123 S. Ct. 632, 154 L. Ed. 2d 556 (2002); reh’g denied, 537 U.S. 1179, 123 S. Ct. 1013, 154 L. Ed. 2d 928 (2003).

          In 2003, Walston filed a bill of review against Larry and the Lockharts regarding the judgment in the original partition suit. She again argued that the order of sale was void, and that the Lockharts committed fraud by a fiduciary because they knowingly aided the receiver in the fraudulent transfer of the property.  In their answer, the Lockharts filed a motion to dismiss, motion for sanctions, and a counterclaim for a permanent injunction preventing Walston from filing any more lawsuits regarding the Lockharts’ property.  The answer also provided notice of a hearing concerning these issues.  The hearing was cancelled after Walston filed a motion to recuse the trial judge.  After the judge recused himself, a second notice of a hearing was sent.  Walston then moved to recuse the assigned judge, and the hearing was cancelled.  The recusal motion was referred to the administrative judge, who denied it.  A third notice for a hearing was sent.  The hearing was held, and after finding that Walston’s suit was frivolous, the trial court dismissed her case with prejudice and issued a permanent injunction enjoining Walston from filing or causing to be filed on her behalf any further lawsuits regarding the property.

          On appeal, Walston argues that (1) the trial court erred in conducting a hearing on the merits without proper notice; (2) there is no evidence or factually insufficient evidence that the sale was not rendered as a result of fraud; (3) the trial court erred in denying her motion for jury trial on issues of fact; (4) there is no evidence or factually insufficient evidence to support the trial court’s finding that Walston’s suit is barred by the statute of limitations; (5) the trial court erred in finding that Walston’s suit is barred by res judicata; (6) there is no evidence or factually insufficient evidence to support that trial court’s finding that Walston sought appellate review of the final order of sale; (7) there is no evidence or factually insufficient evidence to support the trial court’s finding that Walston’s defenses are barred as a matter of law; (8) the trial court abused its discretion in dismissing the case with prejudice; (9) there is no evidence or factually insufficient evidence to support the trial court’s finding that Walston’s bill of review is frivolous; (10) there is no evidence or factually insufficient evidence to support the trial court’s finding that the Lockharts have suffered and continue to suffer irreparable injury to their real property, and the trial court abused its discretion in permanently enjoining Walston from filing any lawsuit regarding the property; and (11) the trial court abused its discretion by failing to review its former judgment in light of allegations of fraudulent conduct by its court-appointed receiver.

The Trial Court did not Abuse its Discretion

 in Dismissing Walston’s Case with Prejudice

          Walston argues in her eighth issue that the trial court abused its discretion in dismissing her case with prejudice.  The trial court dismissed Walston’s case with prejudice as a sanction under section 9.012 of the Civil Practice and Remedies Code and Rule of Civil Procedure 13.  See Tex. Civ. Prac. & Rem. Code Ann. § 9.012(e) (Vernon 2002); Tex. R. Civ. P. 13.  Section 9.012(c) requires a ninety-day interval between the date of determination of a violation and the imposition of a sanction.  Tex. Civ. Prac. & Rem. Code Ann. § 9.012(c) (Vernon 2002).  Because the trial court did not wait the required ninety days, Chapter 9 does not support the trial court’s order.  See id.; Elkins v. Stotts-Brown, 103 S.W.3d 664, 668-69 (Tex. App.—Dallas 2003, no pet.).  Therefore, we will review the order under Rule 13.  See Tex. R. Civ. P. 13.

          Imposing Rule 13 sanctions is within the trial court's sound discretion.  See Monroe v. Grider, 884 S.W.2d 811, 816 (Tex. App.—Dallas 1994, writ denied).  Accordingly, we review a court’s order for sanctions under an abuse of discretion standard.  Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004).  “The test for an abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action, but ‘whether the court acted without reference to any guiding rules and principles.’”  Cire, 134 S.W.3d at 838-39 (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985)).  The trial court's ruling should be reversed only if it was arbitrary or unreasonable. Id.

          Under Rule 13, a court may impose sanctions if it finds that a party’s pleading is groundless and brought in bad faith or groundless and brought for the purpose of harassment.  Tex. R. Civ. P. 13.  The rule defines "groundless" as having "no basis in law or fact and not warranted by good faith argument for the extension, modification, or reversal of existing law."  Tex. R. Civ. P. 13.

          It appears from the record that the trial court determined that the bill of review is effectively groundless because the statute of limitations bars Walston’s claim.  See Tex. Civ. Prac. & Rem. Code Ann. § 16.004 (Vernon 2002) (four year statute of limitations).  Walston’s bill of review was brought eight years after the Lockharts purchased the property.  Previously, Walston argued that the discovery rule applied to toll the four year statute of limitations because she did not discover the alleged fraud of the receiver until late 1999, at which time she attempted to collaterally attack the judgment by filing a trespass to try title suit against the Lockharts.  Now, eight years after the conclusion of the suit to partition the homestead, she attempts to directly attack the original suit, and again claims the discovery rule applies because she did not discover that the Lockharts participated in fraud by a fiduciary until 1999.

          Rule 13 generally requires that the trial court hold an evidentiary hearing to make a determination about the motives and credibility of the person signing the petition.  Texas-Ohio Gas, Inc. v. Mecom, 28 S.W.3d 129, 139 (Tex. App.—Texarkana 2000, no pet.); New York Underwriters Ins. Co. v. State Farm Mut. Auto. Ins. Co., 856 S.W.2d 194, 205 (Tex. App.—Dallas 1993, no writ).  It is clear that the trial court did not accept Walston’s argument as credible. The trial court took judicial notice of the previous cases, including appellate history.  See Texas-Ohio Gas, Inc., 28 S.W.3d at 139.  Also, having been involved in the previous trespass to try title suit, the trial court was extremely familiar with the parties and issues litigated in 1999.  Accordingly, we cannot find that the trial court abused its discretion in finding Walston’s bill of review groundless.  See Cire, 134 S.W.3d at 838-39; Spiller v. Spiller, 21 S.W.3d 451, 456 (Tex. App.—San Antonio 2000, no pet.) (a trial court’s finding that the plaintiff’s fraud claim was frivolous was no abuse of discretion given the trial court’s experience with the parties and knowledge of the prior litigation); Beasley v. Peters, 870 S.W.2d 191, 195 (Tex. App.—Amarillo 1994, no writ).

          Likewise, we cannot say that the trial court abused its discretion in finding that Walston brought the bill of review for purposes of harassment.  The evidence shows that Walston has taken the Lockharts to court numerous times over ten years, exhausting all of her appellate rights, even to the United States Supreme Court.  Her numerous motions to recuse are further evidence of Walston’s delay tactics.  After taking judicial notice of the previous cases and appellate history, the trial court admonished Walston by saying “to continue on with this thing ad infinitum, I don’t think is healthy for you and certainly not for the people that are in this case.”  The record does not indicate that the trial court’s actions were arbitrary or unreasonable.  See Attorney General of Tex. v. Carwright, 874 S.W.2d 210, 216 (Tex. App.—Houston [14th Dist.] 1994, writ denied).  Therefore, the trial court did not abuse its discretion in dismissing Walston’s case with prejudice.  See Cire, 134 S.W.3d at 838-39.  Accordingly, we overrule Walston’s eighth issue.

The Evidence is Legally and Factually Sufficient to Support

the Trial Court’s Finding of Irreparable Harm

          Walston argues in her tenth issue that there is no evidence or factually insufficient evidence supporting the trial court’s finding that the Lockharts have suffered and continue to suffer irreparable injury to their real property, and that the trial court abused its discretion in permanently enjoining Walston from filing any lawsuit regarding the property.

When an appellant who did not have the burden of proof at trial complains of legally insufficient evidence, the appellant must show there is no evidence to support the contested finding.  Beard v. Beard, 49 S.W.3d 40, 55 (Tex. App.—Waco 2001, pet. denied).  The appellate court must consider only the evidence and inferences that support the adverse finding and ignore all evidence and inferences to the contrary. Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex. 2002).  A “no evidence” claim will be sustained if: (a) there is a complete absence of evidence of a vital fact; (b) the rules of law or evidence prevent the court from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is not more than a scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact.  Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998) (citing Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 362‑63 (1960)).  When the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusion,” then there is more than a scintilla of evidence.  Beard, 49 S.W.3d at 55 (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)).

          A trial court's findings of fact are reviewed for factual sufficiency of the evidence under the same legal standards as those applied to review jury verdicts for factual sufficiency of the evidence.  Hitzelberger v. Samedan Oil Corp., 948 S.W.2d 497, 503 (Tex. App.—Waco 1997, pet. denied).  When the party complaining of factual insufficiency did not have the burden of proof at trial, we conduct our review by considering all the evidence in the record both for and against the finding, and we can find the evidence factually insufficient only if we conclude that the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Checker Bag Co. v. Washington, 27 S.W.3d 625, 633 (Tex. App.—Waco 2000, pet. denied).

          While there is no direct evidence that the Lockharts had lost a contract to sell the property, the court took judicial notice of the record containing two lis pendens placed by Walston against the property. A lis pendens is notice to the world of pending litigation that may affect the real property.  See Tex. Prop. Code Ann. §§ 12.007, 13.004 (Vernon 2003).  Any party who takes an interest in real property, when the title to the property is being litigated, and subsequent to the filing of a lis pendens notice, takes that interest subject to any judgment rendered in the pending cause.  Abraham Inv. Co. v. Payne Ranch, Inc., 968 S.W.2d 518, 527-28 (Tex. App.—Amarillo 1998, pet. denied) (citing Hartel v. Dishman, 135 Tex. 600, 145 S.W.2d 865, 868 (1940)).  Therefore, the trial court correctly noted that a lis pendens legally precludes a purchaser from becoming a bona fide purchaser, and this fact would hinder any potential purchaser of the Lockharts’ property.  Moreover, in Walston’s argument to the trial court that the lis pendens is not evidence of irreparable harm, she stated, “But if there were some way to stop them from selling this property, I would have found it, and I would have done it.”

          We find that there is more than a scintilla of evidence to support the trial court’s finding of irreparable harm.  See Beard, 49 S.W.3d at 55.  Furthermore, we cannot say that the trial court’s finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Checker Bag Co., 27 S.W.3d at 633.  Therefore, the evidence is legally and factually sufficient to support the trial court’s finding that the Lockharts’ suffered and continue to suffer irreparable harm.

The Trial Court did not Abuse its Discretion in Issuing

an Anti-Suit Injunction Against Walston

          We review the issuance of an anti-suit injunction under an abuse of discretion standard.  Christensen v. Integrity Ins. Co., 719 S.W.2d 161, 163 (Tex. 1986); AVCO Corp. v. Interstate Southwest, Ltd., 145 S.W.3d 257, 262 (Tex. App.—Houston [14th Dist.] 2004, no pet.).  The circumstances of each situation must be carefully examined to determine whether the injunction is necessary to prevent an irreparable miscarriage of justice.  Gannon v. Payne, 706 S.W.2d 304, 307 (Tex. 1986); AVCO Corp., 145 S.W.3d at 262.

          Anti-suit injunctions are appropriate in four instances: (1) to address a threat to the court's jurisdiction; (2) to prevent the evasion of important public policy; (3) to prevent a multiplicity of suits; or (4) to protect a party from vexatious or harassing litigation.  Golden Rule Ins. Co. v. Harper, 925 S.W.2d 649, 651 (Tex. 1996) (citing Gannon, 706 S.W.2d at 307); Howell v. Tex. Workers’ Compensation Commn., 143 S.W.3d 416, 433-34 (Tex. App.—Austin 2004, no pet.).  However, the principle of comity requires that courts exercise this equitable power sparingly, and only in very special circumstances.  Christensen v. Integrity Ins. Co., 719 S.W.2d 161, 163 (Tex. 1986); London Market Insurers v. American Home Assur. Co., 95 S.W.3d 702, 706 (Tex. App.—Corpus Christi 2003, no pet.).

          Here the trial court’s injunction appears to have issued to prevent a multiplicity of suits and to protect the Lockharts from vexatious or harassing litigation.  As stated above, the trial court presided over the earlier case, and therefore was familiar with the issues raised.  Furthermore, the trial court took judicial notice of the issues and procedural history of the case, providing ample evidence for harassing litigation.  Walston’s appeal of the appointment of the receiver and her collateral attack on the property division through a trespass to try title suit required the Lockharts to answer and defend all the way to the steps of the United States Supreme Court. Once the Supreme Court denied certiorari, the Lockharts were required to answer and defend in the current case, eight years after their initial purchase of the property.  Nguyen v. Intertex, Inc., 93 S.W.3d 288, 299 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (finding anti-suit injunction warranted given the appellant’s repeated appeals and the appellee’s requirement to answer and defend each one).

          Also, the Lockharts’ attempt to commence a hearing on their motions were delayed with Walston’s motions to recuse.  Delay and expense of litigation are factors which may be considered in determining whether an injunction should issue.  In re Est. of Dilasky, 972 S.W.2d 763, 767 (Tex. App.—Corpus Christi 1998, no pet.).

          Given this evidence, we cannot say that the trial court abused its discretion in issuing the injunction preventing Walston from filing another lawsuit regarding the Lockharts’ property.  Chandler v. Chandler, 991 S.W.2d 367, 403 (Tex. App.—El Paso 1999, pet. denied) (finding injunction proper because husband’s continuous barrage of law suits against his former wife was vexatious and meant to harass).  Therefore, we overrule Walston’s tenth issue.

Conclusion

          We overrule Walston’s eighth and tenth issues. Because these issues are dispositive of Walston’s appeal, we need not decide her other issues.  Accordingly, we affirm the judgment of the trial court.

                                                                   FELIPE REYNA

                                                                   Justice

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

          (Chief Justice Gray concurring)

Affirmed

Opinion delivered and filed February 23, 2005

[CV06]

---

    [1]       We remanded to the trial court for a just and right division of community property. Walston v. Walston, No. 10-94-169-CV, No. 10-94-251-CV (Tex. App.—Waco 1995, writ denied)(not designated for publication).  On remand, the trial court awarded each party an undivided fifty percent interest in the remainder of the community property. Walston again appealed.  Finding the trial court abused its discretion, we reversed and remanded.  Walston v. Walston, 971 S.W.2d 687 (Tex. App.—Waco 1998, pet. denied).