Frank C. Powell v. Kevin Alan Fletcher ( 2024 )

Opinion issued March 26, 2024
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-20-00322-CV
———————————
FRANK C. POWELL, Appellant
V.
KEVIN ALAN FLETCHER AND STEPHEN FLETCHER, Appellees
On Appeal from the 257th District Court
Harris County, Texas
Trial Court Case No. 2018-67151
OPINION
This is an appeal of an order sanctioning an attorney for a recusal motion filed
in bad faith. Appellant Frank Powell sought to recuse the trial court judge.1
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Powell was disbarred, and his disbarment is pending on appeal in this Court. See
01-23-00224-CV, Frank C. Powell v. Comm’n for Lawyer Discipline.
Following a hearing, the recusal motion was denied. Finding that the recusal motion
was brought in bad faith, the court sanctioned Powell $19,000. Powell appealed. We
affirm.
Background
This case arises out of a suit involving the parent-child relationship
(“SAPCR”) between Catherine Murrah Molloy and appellees, Kevin Alan Fletcher
and Stephen Alan Fletcher, father and paternal grandfather, respectively, of the
children. Appellant Frank Powell began representing Molloy after the parties
reached a mediated settlement agreement (“MSA”).
A. Powell’s Representation of Molloy
Once he began representing Molloy, Powell threatened opposing counsel for
refusing to renegotiate the MSA and told them that he would create as much “hell”
for them as possible. He filed more than sixty documents including an “Application
for Court Order.” This application claimed that appellee Stephen Fletcher
“submitted false pleadings in a fraudulent attempt” to meet standing requirements in
the SAPCR. The court held a hearing on Powell’s “Application” and several other
motions in August 2019. At the hearing, the trial court granted a motion to enter the
MSA and denied all other motions, including Powell’s “Application for Court
Order.” After the hearing, inconsistent with her oral rulings and other written rulings,
the trial court signed the proposed order. Within two weeks, the court entered a
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written ruling that the court order was erroneously signed and “VOIDED.” The trial
court made a written notation that the original order was signed in error. The district
clerk’s office then followed standard procedures for voided orders.
When the underlying case was appealed, Powell requested that the original,
voided order be included in the clerk’s record, and he requested to supplement the
record with the order. In response, the appellees stated that they had noticed the
clerical error and brought it to the clerk’s attention, who then spoke with the trial
judge. The order was removed from the file and the clerk’s website. Based on these
interactions, Powell moved to recuse the trial judge.
In his recusal motion, Powell alleged that by communicating with the clerk
regarding the status of the voided order, the trial judge participated in ex parte
communications, became “a witness to how this signed court order became
unavailable,” and committed the criminal offense of tampering with a government
record.2 The motion was brought under Texas Rule of Civil Procedure 18b(1)
(“impartiality might reasonably be questioned”); 18b(3) (“personal knowledge of
disputed evidentiary facts concerning the proceeding”); and 18b(4) (“judge . . . has
been a material witness concerning the proceeding”). See TEX. R. CIV. P. 18b
(“Grounds for Recusal and Disqualification of Judges”).
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Powell cited TEX. PENAL CODE § 37.10(a)(3).
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The Honorable Susan Brown, Presiding Judge of the Eleventh Administrative
Judicial Region of Texas, held a recusal hearing. See TEX. R. CIV. P. 18a(g)(1). Judge
Brown denied the recusal motion and found that it had been brought in bad faith.
The court, addressing Powell, stated:
[Mr. Powell] brought this motion in bad faith. Based on the fact that—
of your communication with the District Clerk’s Office. You knew full
well and good that that order had been voided back in September. And
you made the choice to make—to file this recusal, make allegations
against [the trial judge], against the District Clerk’s Office, when all
you had to do, sir, was to file a motion and the judge would have given
you that information. So I don’t need to hear anything else to show that
you filed this in bad faith. So I can end this now, Counsel, because I
believe, as I have never in a recusal hearing believed, that someone
brought it in bad faith.
Judge Brown sanctioned Powell and Molloy $19,000. See TEX. R. CIV. P. 18a(h).
Powell and Molloy filed a supersedeas bond in the trial court. Powell and
Molloy each appealed.
B. Proceedings after appeal
At one time, Powell represented Molloy in four proceedings pending in this
court, including two appeals and two original proceedings. See In re Molloy, No. 01-
19-00894-CV, 2021 WL 1618469, at *1 n.3 (Tex. App.—Houston [1st Dist.] Apr.
27, 2021, orig. proceeding) (mem. op.) (listing appellate case numbers). In June
2020, following unsolicited communications from Molloy, the appellees and their
counsel filed a motion to show authority, alleging that Molloy had informed Kevin
Fletcher that she no longer wished to prosecute her appeals but that her attorney
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refused to follow her instructions. Id. at *1. This Court abated the appeals and
remanded to the trial court to hold a hearing. Id.
The trial court held a five-day evidentiary hearing in August 2020. The trial
court concluded that Powell and his firm did not have authority to represent Molloy
and that Molloy had unequivocally desired to dismiss her four pending causes. In re
Molloy, 2021 WL 1618469, at *1. The court concluded that there was no legal basis
for the issues raised in the appeals, that they were groundless and frivolous on their
merits, and that there was no factual basis for raising the issues in each proceeding.
Id. The court found that Powell attempted to relitigate issues repeatedly to needlessly
increase the cost of litigation, and that he pursued this litigation in bad faith to harass
the Fletchers, opposing counsel, and the trial court. Id. The court also found that
Powell committed several violations of the Disciplinary Rules. Id. The court
recommended sanctioning Powell and his firm $491,582.72. Id.Tragically, Molloy died after the hearing. The Fletchers moved to dismiss
Molloy’s appeal after her death and moved this Court for the imposition of appellate
sanctions against Powell for his conduct, including the filing of this appeal in bad
faith. The Fletchers filed the motion in each of the appeals in which Molloy was
represented by Powell, and requested, for efficiency, that we rule on the motion in
this appeal. See Scott Bader, Inc. v. Sandstone Prods., Inc., 248 S.W.3d 802, 806 n.1
(Tex. App.—Houston [1st Dist.] 2008, no pet.) (court may take judicial notice of
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record in other appeal involving same parties and related issue). This Court
dismissed Molloy’s appeals. Only Powell’s appeal of the $19,000 sanctions order
for filing a bad faith motion to recuse the trial judge and the Fletchers’s motion for
the imposition of sanctions remain.
Sanctions Order
In a single issue, Powell contends that the trial court abused its discretion by
issuing sanctions against him. We disagree.
A. Standard of Review
“Various rules and statutes imbue courts with authority to sanction attorneys
for professional lapses of one kind or another with or without bad faith.” Brewer v.
Lennox Hearth Products, LLC, 601 S.W.3d 704, 717–18 (Tex. 2020) (citing, among
other rules, TEX. R. CIV. P. 18a(h)). “Courts also possess inherent powers that aid
the exercise of their jurisdiction, facilitate the administration of justice, and preserve
the independence and integrity of the judicial system.” Id. at 718 We review a trial
court’s sanctions order for abuse of discretion. Id. at 717. “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 v. Cummings, 134 S.W.3d 835,
838–39 (Tex. 2004) (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d
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238, 241 (Tex. 1985)). The trial court’s ruling should be reversed only if it was
arbitrary or unreasonable. Cire, 134 S.W.3d at 839.
Texas Rule of Civil Procedure 18a(h) permits the judge who hears a motion
for recusal to order the party or attorney who filed the motion, or both, to pay
“reasonable attorney fees and expenses incurred . . . if the judge determines that the
motion was (1) groundless and filed in bad faith or for the purpose of harassment, or
(2) clearly brought for unnecessary delay and without sufficient cause.” TEX. R. CIV.
P. 18a(h).
B. Analysis
1. Form of Sanctions Order
On appeal, Powell argues that the sanctions order should be reversed because
the order “does not follow the statutory language of the relevant statute.” Appellant’s
Br. 9. The order states:
Powell argues that the word “filed” should have been included in the order
rather than crossed out.
Powell did not preserve this issue for our review because it was not presented
to the trial court. TEX. R. APP. P. 33.1(a). Texas Rule of Appellate Procedure 33.1(a)
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provides that, as a prerequisite for presenting a complaint on appeal, the record must
demonstrate that the complaining party made his complaint to the trial court by a
timely request, objection, or motion that stated the grounds for the ruling sought with
sufficient specificity to make the trial court aware of the complaint. TEX. R. APP. P.
33.1(a)(1)(A). “[W]hen an attorney fails to complain of the sanction imposed and
fails to ask the trial court to reconsider its actions in imposing the sanction, the
attorney waives any complaint about the trial court’s actions.” Wilner v. Quijuano,
No. 01-11-00322-CV, 2012 WL 531147, at *3 (Tex. App.—Houston [1st Dist.] Oct.
25, 2012, no pet.) (mem. op.). (holding attorney did not preserve error with trial
court’s sua sponte decision to impose sanction upon him because trial court had no
opportunity to correct alleged error). Powell never objected to the form of the
sanctions order and the record does not reflect that he made Judge Brown “aware of
his complaint” about its form. TEX. R. APP. P. 33.1(a). This issue is not preserved for
our review.
Even if the issue had been preserved for our review, any alleged error with the
form of the order is not reversible error. “No judgment may be reversed on appeal
on the ground that the trial court made an error of law unless the court of appeals
concludes that the error complained of: (1) probably caused the rendition of an
improper judgment; or (2) probably prevented the appellant from properly
presenting the case to the court of appeals.” TEX. R. APP. P. 44.1 (“Reversible Error
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in Civil Cases”). Powell has not shown that an error, if any, in the wording of the
sanctions order harmed him. The trial court stated on the record that Powell was
sanctioned because he “brought this motion in bad faith” and Powell’s brief states
that he was sanctioned “for filing a motion to recuse [the trial court judge].”
Powell argues that the court erred because the order needed the word “filed,”
and the court crossed it out. The crossed out “filed” is the second instance of that
word in the same sentence. Therefore, the word “filed” still appears. Reading the
remaining language of the order, the court ruled that “the Motion to Recuse the Trial
Judge filed by Catherine Molloy and her counsel, Frank C. Powell, was groundless
and in bad faith.” (emphasis added). Even if he had preserved the issue for appeal,
Powell has not shown that he was harmed by any alleged deficiency in the wording
of the sanctions order.
2. Sufficiency of the Evidence Supporting Sanctions
To the extent Powell challenges the sufficiency of the evidence to support
sanctions against him, the trial court did not abuse its discretion in awarding
sanctions because the record demonstrates that Powell filed his recusal motion in
bad faith. TEX. R. CIV. P. 18a(h)(1). A party acts in bad faith when it makes factual
allegations that a reasonable inquiry would have disproven. See McLaurin v.
McLaurin, No. 01-14-00710-CV, 2016 WL 3023020, at *15 (Tex. App.—Houston
[1st Dist.] May 26, 2016, pet. denied) (mem. op.) (analyzing sufficiency to support
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sanctions for filing pleading in bad faith under Texas Rule of Civil Procedure 13).
Powell’s allegations against the trial court, including that the trial court engaged in
ex parte communications and engaged in criminal conduct, could have been
disproven with reasonable inquiry, such as a call to the district court clerk’s office,
a call to opposing counsel, or filing a motion in the trial court. Moreover, despite
being confronted at the recusal hearing with evidence confirming his extreme
accusations were incorrect, Powell continued to argue before the recusal judge that
the trial court and clerk’s office had engaged in criminal behavior. To the extent
Powell argues that the evidence is insufficient to support an award of sanctions, the
trial court did not abuse its discretion in sanctioning Powell for filing a motion to
recuse in bad faith. TEX. R. CIV. P. 18a(h).
Rule 45 Damages
The Fletchers request this Court impose sanctions against Powell for bringing
a frivolous appeal. See TEX. R. APP. P. 45. Powell did not file a response to the
request.
Texas Rule of Appellate Procedure 45 provides:
If the court of appeals determines that an appeal is frivolous, it
may–on motion of any party or on its own initiative, after notice
and a reasonable opportunity for response–award each prevailing
party just damages. In determining whether to award damages,
the court must not consider any matter that does not appear in the
record, briefs, or other papers filed in the court of appeals.
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TEX. R. APP. P. 45. We must exercise our discretion to impose Rule 45 damages with
prudence, caution, and only after careful consideration. Deaner v. Marchese, No.
02-03-0029-CV, 2004 WL 177480, at *1 (Tex. App.—Fort Worth Jan. 29, 2004, no
pet.) (mem. op.) (citing Casteel-Diebolt v. Diebolt, 912 S.W.2d 302, 306 (Tex.
App.—Houston [14th Dist.] 1995, no writ)); Dyson Descendant Corp. v. Sonat Expl.
Co., 861 S.W.2d 942, 952 (Tex. App.—Houston [1st Dist.] 1993, no writ). “We
impose sanctions only under circumstances we find truly egregious.” Byrd v. Hutton,
No. 05-19-01191-CV, 2020 WL 4013150, at *6 (Tex. App.—Dallas July 16, 2020,
pet. denied) (mem. op.) (citing D Design Holdings, L.P. v. MMP Corp., 339 S.W.3d
195, 205 (Tex. App.—Dallas 2011, no pet.). We review the record from the
appellant’s point of view at the time the appeal was taken and decide whether he had
any reasonable grounds to believe the case would be reversed. Smith v. Brown, 51
S.W.3d 376, 381 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). “We will not
permit spurious appeals, which unnecessarily burden parties and our already
crowded docket, to go unpunished.” Bradt v. West, 892 S.W.2d 56, 79 (Tex. App.—
Houston [1st Dist.] 1994, writ. denied).
Although Rule 45 does not provide a method for determining an amount of
“just damages,” courts exercising their discretion in awarding damages have
generally relied on proof by testimony or affidavit. See, e.g., Smith v. Marshall B.
Brown, P.C., 51 S.W.3d 376, 381–82 (Tex. App.—Houston [1st Dist.] 2001, pet.
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denied) (awarding sanctions proven by affidavit). On the other hand, some courts
have awarded damages in situations in which no evidence of damages as the basis
for the award was provided to the courts. See Lee v. Aurora Loan Servs., L.L.C., No.
06-08-00077-CV, 2009 WL 167067, at *3 (Tex. App.—Texarkana Jan. 27, 2009, no
pet.) (mem. op.) (awarding $7,500); Njuku v. Middleton, 20 S.W.3d 176, 178 (Tex.
App.—Dallas 2000, pet. denied) (awarding $5,000.00 per frivolous appeal); Salley
v. Houston Lighting & Power Co., 801 S.W.2d 230, 232 (Tex. App.—Houston [1st
Dist.] 1990, writ denied) (awarding $6,000); Rosenthal v. Nat’l Terrazzo Tile &
Marble, Inc., 742 S.W.2d 55, 57 (Tex. App.—Houston [14th Dist.] 1987, no writ)
(awarding $2,500.00).
We find this situation and Powell’s actions concerning the appeal particularly
egregious. In its September 3, 2020 order, the trial court made the following
findings:
• Powell had no authority to initiate, file briefs, file motions, or otherwise
participate in this appeal.
• Molloy instructed Powell to dismiss the appeal and he refused.
• The instruction from Molloy to dismiss the appeal should not have been
necessary because Powell never had authority to file the appeal.
• This appeal is clearly groundless and frivolous, and no reasonable
attorney could fail to conclude that this court would uphold the trial
court’s ruling.
• The appellate briefing in this case was groundless because the issue was
not preserved for lack of objection to the form of the order.
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• The appeal was brought in bad faith and includes several false
accusations against the Harris County District Clerk’s Office, the trial
court, and opposing counsel, including accusations of ex parte
communications and manipulation of government documents.
• Appellees were injured by the frivolous proceedings because their
attorneys expended time and expense on frivolous appeals.
We agree. Powell’s conduct was egregious, and this appeal was frivolous,
brought in bad faith, and intended to delay and harass the appellees.
During the 2020 hearing regarding Powell’s authority to represent Molloy, the
parties stipulated to the Fletchers’ counsel’s calculation of attorney’s fees. In July
2022, the trial court ordered Powell to pay the appellate attorney’s fees to which the
parties stipulated at the August 2020 hearing. Powell appeals that order by separate
cause number.3
Given the fact that the trial court has already imposed more than $500,000 in
sanctions against Powell, we decline to add additional sanctions. TEX. R. APP. P. 45
(stating court “may” award sanctions for frivolous appeals).
3
No. 01-22-00640-CV, Frank C. Powell and Evans Powell PLLC v. Kevin Fletcher
and Steven Fletcher
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Conclusion
We affirm the judgment of the trial court. All pending motions are denied.
Judgment is rendered against the sureties on the appellant’s supersedeas bond for the
performance of the judgment and for costs rendered against appellant. See TEX. R.
APP. P. 43.5.
Peter Kelly
Justice
Panel consists of Justices Kelly, Landau, and Farris.
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