Danielle Sposito v. Linda Rollins-Threats, Ph.D. ( 2024 )

Affirmed and Opinion Filed July 10, 2024
S
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00597-CV
DANIELLE SPOSITO, Appellant
V.
LINDA ROLLINS-THREATS, PH.D., Appellee
On Appeal from the County Court at Law No. 4
Dallas County, Texas
Trial Court Cause No. CC-22-05777-D
MEMORANDUM OPINION
Before Justices Partida-Kipness, Pedersen, III, and Carlyle
Opinion by Justice Partida-Kipness
Appellant Danielle Sposito appeals the dismissal of her suit against Appellee
Dr. Rollins-Threats under Texas Rule of Civil Procedure 91a. In three issues, Sposito
asserts the trial court erred in: (1) granting the motion to dismiss; (2) awarding
attorney’s fees; and (3) denying Sposito’s motion to reconsider. We affirm.
BACKGROUND
Sposito’s lawsuit arises from Dr. Rollins-Threats’s involvement in a suit
affecting the parent-child relationship (SAPCR).1 Sposito is the grandmother of the
1
See TEX. FAM. CODE § 101.032(a).
children at issue in the SAPCR. The SAPCR court appointed Dr. Rollins-Threats as
a parenting facilitator, in accordance with the parties’ agreement. In that role, Dr.
Rollins-Threats visited with the parties, issued reports for the court, and gave
testimony at several hearings.
Displeased with the SAPCR outcome, Sposito filed the present suit against
Dr. Rollins-Threats. In a single-page petition, Sposito asserted claims for
malpractice, “child endangerment,” and slander. Sposito alleged Dr. Rollins-Threats
was the parenting facilitator in the SAPCR case, and in that role she “[broke] both
state and federal laws,” “told multiple lies,” and “violated [Sposito’s] rights.”
Sposito’s petition provided no additional detail regarding these claims.
Dr. Rollins-Threats answered and included the affirmative defense of derived
judicial immunity in her role as a court-appointed parenting facilitator. Dr. Rollins-
Threats moved to dismiss under Rule 91a, asserting Sposito’s claims had no basis in
law because of the immunity defense. Dr. Rollins-Threats also sought attorney’s
fees.
In response, Sposito asserted Dr. Rollins-Threats was not entitled to immunity
because she was not appointed as parenting facilitator in the SAPCR suit, and in any
event Dr. Rollins-Threats had lied and broken various laws in her role as facilitator.
The parties engaged in additional briefing related to the Rule 91a motion. The trial
court held a hearing and later granted the motion to dismiss and awarded Dr. Rollins-
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Threats attorney’s fees. Sposito filed a motion to reconsider which was overruled by
operation of law. This appeal followed.
STANDARD OF REVIEW
We review the merits of a Rule 91a ruling de novo. San Jacinto River Auth.
v. Medina, 627 S.W.3d 618, 628 (Tex. 2021). The availability of a remedy under the
facts alleged is a question of law and the rule’s factual-plausibility standard is akin
to a legal-sufficiency review. City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex.
2016).
ANALYSIS
In three issues, Sposito asserts the trial court erred in: (1) granting the motion
to dismiss; (2) awarding attorney’s fees; and (3) denying Sposito’s motion to
reconsider. We address each issue in turn.
I. The Trial Court Did Not Err in Granting the Motion to Dismiss
In her first issue, Sposito asserts the trial court erred in granting the Rule 91a
motion to dismiss. We disagree.
A. Rule 91a
Under Rule 91a, party may move to dismiss a cause of action on the grounds
it has no basis in law or fact. TEX. R. CIV. P. 91a.1. A cause of action has no basis in
law if the allegations, taken as true, together with inferences reasonably drawn from
them, do not entitle the claimant to the relief sought. Id. A cause of action has no
basis in fact if no reasonable person could believe the facts pleaded. Id. Except on
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issues of costs and attorney’s fees, the court may not consider evidence in ruling on
the motion and must decide it based solely on the pleading of the cause of action,
together with any pleading exhibits permitted by Rule 59. TEX. R. CIV. P. 91a.6.
Rule 91a provides a harsh remedy and should be strictly construed. Renate
Nixdorf GmbH & Co. KG v. TRA Midland Props., LLC, No. 05-17-00577-CV, 2019
WL 92038, at *10 (Tex. App.—Dallas Jan. 3, 2019, pet. denied) (mem. op.) (citing
Gaskill v. VHS San Antonio Partners, LLC, 456 S.W.3d 234, 238 (Tex. App.—San
Antonio 2014, pet. denied)).
1) “No Basis in Fact”
The “no basis in fact” prong of Rule 91a.1 relates to the believability of the
facts alleged by a plaintiff in pleading a cause of action and, thus, seldom rises to a
point of contention in the case law. Long v. Long, 681 S.W.3d 805, 816–17 (Tex.
App.—Dallas 2023, no pet.). The “no basis in fact” prong is a “factual plausibility
standard.” Id. (citing Sanchez, 494 S.W.3d at 724). We do not consider whether such
allegations are likely, or even if the conduct alleged is outlandish, but only if a
reasonable person could believe the alleged conduct. Longhorn Creek Ltd. v.
Gardens of Connemara Ltd., 686 S.W.3d 418, 425 (Tex. App.—Dallas 2024, pet.
filed) (quoting Drake v. Walker, No. 05-14-00355-CV, 2015 WL 2160565, at *3
(Tex. App.—Dallas May 8, 2015, no pet.) (mem. op.)).
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2) “No Basis in Law”
A cause of action alleged by a claimant has no basis in law “if the allegations,
taken as true, together with inferences reasonably drawn from them, do not entitle
the claimant to the relief sought.” TEX. R. CIV. P. 91a.1. In assessing whether the
non-movant’s pleading has no basis in law, we apply a fair-notice pleading standard
to determine whether the allegations of the petition are sufficient to allege a cause
of action. Long, 681 S.W.3d at 817 (citations omitted). A petition is sufficient if it
gives fair and adequate notice of the facts upon which the pleader bases his claim.
Id. “Even the omission of an element is not fatal if the cause of action may be
reasonably inferred from what is specifically stated.” Thomas v. 462 Thomas Fam.
Props., LP, 559 S.W.3d 634, 639 (Tex. App.—Dallas 2018, pet. denied) (quoting In
re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015) (orig. proceeding)). Under this standard,
courts assess whether an opposing party can ascertain from the pleading the nature
of the controversy, its basic issues, and the type of evidence that might be relevant.
Id. at 640.
In applying the fair-notice pleading standard to our review in a Rule 91a
context, “we must construe the pleadings liberally in favor of the plaintiff, look to
the pleader’s intent, and accept as true the factual allegations in the pleadings to
determine if the cause of action has a basis in law or fact.” Longhorn Creek, 686
S.W.3d at 426 (quoting In re RNDC Tex., LLC, No. 05-18-00555-CV, 2018 WL
2773262, at *1 (Tex. App.—Dallas June 11, 2018, no pet.) (mem. op.)). “[I]f nothing
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in the pleading itself triggers a clear legal bar to the claim, then there is a basis in
law and the motion should be denied.” Id.Typically, there are two circumstances in which a court may determine a cause
of action has no basis in law under Rule 91a: (1) where the plaintiff fails to plead a
legally cognizable cause of action, or (2) where the allegations in the plaintiff’s own
pleading establish a complete legal bar to the plaintiff’s claims by affirmatively
negating entitlement to the relief requested. Long, 681 S.W.3d at 817-18 (citing
Reaves v. City of Corpus Christi, 518 S.W.3d 594, 608 (Tex. App.—Corpus Christi–
Edinburg 2017, no pet.)).
Rule 91a permits motions to dismiss based on affirmative defenses “if the
allegations, taken as true, together with inferences reasonably drawn from them, do
not entitle the claimant to the relief sought.” Bethel v. Quilling, Selander, Lownds,
Winslett & Moser, P.C., 595 S.W.3d 651, 656 (Tex. 2020) (quoting TEX. R. CIV. P.
91a.1)). In deciding a Rule 91a motion, a court may consider the defendant’s
pleadings if doing so is necessary to make the legal determination of whether an
affirmative defense is properly before the court. Id.B. Derived Judicial Immunity
Dr. Rollins-Threats asserted derived judicial immunity as a legal bar to
Sposito’s suit. When entitled to the protection of derived judicial immunity, an
officer of the court receives the same immunity as a judge acting in his or her official
judicial capacity—absolute immunity from liability for judicial acts performed
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within the scope of jurisdiction. Dallas Cnty. v. Halsey, 87 S.W.3d 552, 554 (Tex.
2002). The policy reasons for judicial immunity are also implicated when a judge
delegates or appoints another person to perform services for the court or when a
person otherwise serves as an officer of the court. Id. (citing Delcourt v. Silverman,
919 S.W.2d 777, 782 (Tex. App.—Houston [14th Dist.] 1996, writ denied)). In this
circumstance, the immunity attached to the judge follows the delegation,
appointment, or court employment. Id. The person acting in such a capacity also
enjoys absolute immunity, known as derived judicial immunity. Id. (citing Clements
v. Barnes, 834 S.W.2d 45, 46 (Tex. 1992); Delcourt, 919 S.W.2d at 782).
Derived judicial immunity provides broad protection:
Once an individual is cloaked with derived judicial immunity because
of a particular function being performed for a court, every action taken
with regard to that function—whether good or bad, honest or dishonest,
well-intentioned or not—is immune from suit. Once applied to the
function, the cloak of immunity covers all acts, both good and bad. The
whole either is protected or it is not.
B.W.D. v. Turnage, No. 05-13-01733-CV, 2015 WL 869289, at *6 (Tex. App.—
Dallas Mar. 2, 2015, pet. denied) (mem. op.) (cleaned up and citations omitted).
Texas courts apply a “functional approach” to determine if a party is entitled
to judicial immunity. Halsey, 87 S.W.3d at 554-57. The functional approach focuses
on the nature of the function performed, not the identity of the actor, and considers
whether the court officer’s conduct is like that of the delegating or appointing judge.
Id. at 555 (citations omitted). Importantly, if the tasks necessitate the exercise of
discretion, judicial immunity will apply. See id. at 557. “If an action involves
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personal deliberation, decision and judgment, it is discretionary.” Id. (quoting City
of Lancaster v. Chambers, 883 S.W.2d 650, 654 (Tex. 1994)). A party is entitled to
absolute immunity when the party is acting as an integral part of the judicial system
or an “arm of the court.” Delcourt, 919 S.W.2d at 782.
We have not located any Texas case addressing whether a parenting facilitator
may be entitled to derived judicial immunity. However, Delcourt is instructive.
After Karen Delcourt was removed as sole managing conservator of her daughter,
she sued the court-appointed psychologist, Dr. Silverman. Delcourt, 919 S.W.2d at
779-80. Dr. Silverman asserted he was entitled to judicial immunity. Id.
The Houston Court of Appeals concluded derived judicial immunity should
apply to mental health experts appointed to provide psychological expertise in child
custody suits. Id. at 782-83. The court noted many other jurisdictions recognize
psychiatrists and psychologists performing court-ordered custody evaluations
perform a judicial function and enjoy absolute immunity. Id. at 783 (collecting
cases). The court then stated:
When a court appoints a mental health professional to examine the child
and the parents in a custody proceeding, the professional is acting as a
fact finder for the court. The court relies on the professional to provide
information essential to the decision-making process. Without the
protection of absolute immunity, such professionals would be, at the
very least, reluctant to accept these appointments. This would in turn
inhibit judges from performing their duties.
Id. Dr. Silverman was appointed to assist in the determination of the emotional and
medical issues surrounding allegations of sexual abuse. Id. Silverman met with the
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parents and minor child, conducted evaluations, and gave an opinion as a mental
health expert. Id. The evidence established he was appointed by and acted as a
functionary of the court when he took the actions forming the basis of Delcourt’s
claims. Thus, he was entitled to absolute judicial immunity. Id. We reach the same
conclusion with respect to Dr. Rollins-Threats.
C. Dr. Rollins-Threats is entitled to derived judicial immunity
Under the Family Code, a “parenting facilitator” is an impartial third party
appointed by the court on its own or agreement of the parties, who performs any
function described in Section 153.6061 of the code. TEX. FAM. CODE § 153.601(3-
a). The parenting facilitator’s duties are largely co-extensive with those of a
parenting coordinator. Id. §§ 153.606–.6061. Those duties include aiding the parties
in:
 understanding parenting plans and reaching agreements about
issues to be included in such plans;
 complying with the court’s orders regarding conservatorship or
possession of an access to the child;
 implementing parenting plans; and
 settling disputes.
Id. § 153.505(a). The parenting facilitator may also monitor compliance with court
orders. Id. § 153.6061(a). These provisions support the conclusion a parenting
facilitator exercises personal deliberation, decision, and judgment in assisting the
parties in understanding and complying with court-ordered plans, and in monitoring
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compliance with court orders. The parenting facilitator also acts as a fact-finder for
the court to provide information essential to the decision-making process. Delcourt,
919 S.W.2d at 783. As such, a parenting facilitator acts as an integral part of the
judicial system or “arm of the court” and is entitled to derived judicial immunity.
See id.
In her barebones petition, Sposito affirmatively states: “Dr. Linda R. Threats
was a parent facilitator in my family law case.” Sposito claims “Dr. Threats began
to break both state and federal laws in regard to my case disregarding the health and
well-being of the children she was hired to protect! Told multiple lies and violated
my rights as well.” Sposito provided no other specifics regarding her claims.
Taking Sposito’s allegations as true, together with inferences reasonably
drawn therefrom, the acts forming the basis of Sposito’s claims arise from Dr.
Rollins-Threats’ role as a court-appointed parenting facilitator. The order appointing
her as parenting facilitator supports this conclusion.2 The order expressly appoints
2
The court order was attached to and incorporated into Dr. Rollins-Threats’s answer and her motion
to dismiss. Courts typically do not consider exhibits attached to the defendant’s answer or motion in a Rule
91a proceeding. Bethel, 595 S.W.3d at 654 (quoting TEX. R. CIV. P. 91a.6). However, Sposito did not object
to the consideration of this evidence at the trial court. See TEX. R. APP. P. 33.1(a)(1) (party must object in
trial court to preserve error and obtain ruling on objection). Indeed, both parties invited the trial court to
consider evidence attached to their motions and responses. Similarly, at this Court Sposito does not
complain of the trial court’s consideration of her or Dr. Rollins-Threats’s evidence. Under these
circumstances, we will not assign error to the trial court in considering the parties’ evidence as they
requested. See Sw. Airlines Pilots Ass'n v. Boeing Co., No. 05-21-00598-CV, 2022 WL 16735379, at *7
(Tex. App.—Dallas Nov. 7, 2022, pet. denied) (mem. op.) (examining whether plaintiff preserved or invited
error regarding consideration of evidence in Rule 91a proceeding); see also Pike v. Tex. EMC Mgmt., LLC,
610 S.W.3d 763, 782 (Tex. 2020) (“A court of appeals may not reverse a trial court judgment on a ground
not raised.”).
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Dr. Rollins-Threats as the facilitator.3 Dr. Rollins-Threats’ duties were to “assess the
parenting plan situation” and guide the parties through the plan phases. The order
includes the duties in Sections 153.606 and 153.6061 of the Family Code described
above, including monitoring compliance with the court order.
Dr. Rollins-Threats had discretion to determine: when it would be in the best
interest of the children to move to the next phase of the plan for possession; when
additional visits would be in the best interest of the children after Father completed
Phase 1; additional periods of supervised possession, with supervisors approved by
Dr. Rollins-Threats; and the circumstances under which Father would have
unsupervised possession of the children. Dr. Rollins-Threats wrote reports for the
SAPCR court and testified at several hearings regarding the parties’ participation
and progress in the plan and the child possession the parents and grandparents should
have.
Sposito contends Dr. Rollins-Threats “told lies” in her reports and during her
testimony in the SAPCR, and attacks Dr. Rollins-Threats’s judgment and
recommendations. Even assuming Sposito’s allegations are true, such acts were in
the context of her role as parenting facilitator to aid the court in its decision-making
process. Delcourt, 919 S.W.2d at 783; Turnage, 2015 WL 869289, at *5 (court-
appointed drug testing company and its owner were entitled to derived judicial
3
Sposito disputed Dr. Rollins-Threats had been court-appointed but conceded her prior attorney
agreed to Dr. Rollins-Threats as a parenting facilitator, and Sposito approved the court order as to form and
substance.
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immunity where they were acting as an “arm of the court” when they conducted the
drug testing, and they did not exceed the order’s scope by interpreting the drug
testing results). Accordingly, Dr. Rollins-Threats is entitled to derived judicial
immunity. See Delcourt, 919 S.W.2d at 78.
Sposito cites several cases to support her argument Dr. Rollins-Threats
committed non-judicial acts and was not entitled to immunity.4 We do not dispute
that in some instances, a judge or court-appointed actor may not be entitled to
immunity because their acts are truly non-judicial or extra-judicial. However,
Sposito’s cases are distinguishable, and there is no indication Dr. Rollins-Threats
acted outside her role as a parenting facilitator. Even if, as Sposito asserts, Dr.
Rollins-Threats lied, broke the law, or came to the wrong conclusions in her
recommendations, these acts were performed in her role as a parenting facilitator
appointed by the court and as such are shielded by derived judicial immunity. See
Delcourt, 919 S.W.2d at 783; Turnage, 2015 WL 869289, at *5. Accordingly,
4
Forrester v. White, 484 U.S. 219, 230, 108 S. Ct. 538, 546, 98 L. Ed. 2d 555 (1988) (judge not
entitled to absolute immunity for his decisions to demote and discharge employee because such acts were
administrative rather than judicial); Harper v. Merckle, 638 F.2d 848, 858-59 (5th Cir. 1981) (judge used
his judicial office as an offensive weapon to vindicate personal objectives, and no party had invoked the
judicial machinery for any purpose, such that the judge’s actions were not “judicial acts” entitled to
immunity); Harris v. Harvey, 605 F.2d 330, 336 (7th Cir. 1979) (judge’s acts outside of courtroom and not
part of his judicial functions, such as derogatory comments about the defendant to media and others, were
not shielded by judicial immunity); Gibson v. Goldston, No. 5:21-CV-00181, 2022 WL 2719725, at *6
(S.D.W. Va. July 13, 2022) (judge performed an executive, non-judicial act when she personally conducted
a warrantless search and seizure at the defendant’s residence), aff'd, 85 F.4th 218 (4th Cir. 2023); see also
Stump v. Sparkman, 435 U.S. 349, 356-64. 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978) (judge acted in his
judicial capacity in approving mother’s petition to have her daughter sterilized and was therefore entitled
to immunity, where he performed the type of act normally performed only by judges, and regardless of
procedural or due process error involved in the decision).
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Sposito’s suit has no basis in law, and the trial court did not err in granting Dr.
Rollins-Threats’s motion to dismiss. We overrule Sposito’s first issue.
II. Remaining Issues
In her second and third issues, Sposito asserts the trial court erred in awarding
attorney’s fees and denying Sposito’s motion to reconsider. We address these issues
together and conclude Sposito has waived any such complaints.
Rule 91a gives the trial court discretion to award reasonable and necessary
attorney’s fees to the prevailing party. TEX. R. CIV. P. 91a.7. Generally, we review a
trial court’s award of attorney’s fees for an abuse of discretion. Arnold v. Addison,
No. 05-20-00001-CV, 2021 WL 5984875, at *14 (Tex. App.—Dec. 17, 2021, no
pet.) (mem. op.) (citing Ridge Oil Co., Inc. v. Guinn Invs., Inc., 148 S.W.3d 143, 163
(Tex. 2004)). We also review a trial court’s denial of a motion to reconsider for abuse
of discretion. Henry v. Halliburton Energy Servs., Inc., 100 S.W.3d 505, 510 (Tex.
App.—Dallas 2003, pet. denied).
However, an appellant’s brief must contain a clear and concise argument for
the contentions made, with appropriate citations to authorities and the record. TEX.
R. APP. P. 38.1(i). When a party fails to adequately brief a complaint, she waives the
issue on appeal. Washington v. Bank of N.Y., 362 S.W.3d 853, 854 (Tex. App.—
Dallas 2012, no pet.).
In her appellate brief, Sposito presents no argument or authorities to support
her contentions the trial court abused its discretion in awarding attorney’s fees and
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in denying the motion to reconsider. She has presented nothing for review and has
waived any such complaints. Washington, 362 S.W.3d at 854.
Even if Sposito had properly presented the issue in this Court, Rule 91a gives
the trial court broad discretion to award attorney’s fees to the prevailing party. TEX.
R. CIV. P. 91a.7. Dr. Rollins-Threats prevailed on her motion to dismiss, requested
attorney’s fees, and submitted evidence in support. Furthermore, Sposito’s motion
to reconsider did not present any new argument for why Dr. Rollins-Threats was not
entitled to judicial immunity. We perceive no abuse of discretion by the trial court
on these issues. Accordingly, we overrule Sposito’s second and third issues.
CONCLUSION
Sposito’s claims arise out of Dr. Rollins-Threats’s role as a court-appointed
parenting facilitator. As such, Dr. Rollins-Threats is shielded by derived judicial
immunity, and Sposito’s claims against her have no basis in law. Therefore, the trial
court did not err in granting the Rule 91a motion to dismiss. Furthermore, even if
Sposito had not waived the issues, she has not demonstrated the trial court abused
its discretion in awarding Dr. Rollins-Threats attorney’s fees or in denying the
motion to reconsider. Accordingly, we affirm the trial court’s judgment.
/Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
230597F.P05 JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DANIELLE SPOSITO, Appellant On Appeal from the County Court at
Law No. 4, Dallas County, Texas
No. 05-23-00597-CV V. Trial Court Cause No. CC-22-05777-
D.
LINDA ROLLINS-THREATS, Opinion delivered by Justice Partida-
PH.D., Appellee Kipness. Justices Pedersen, III and
Carlyle participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee LINDA ROLLINS-THREATS, PH.D.
recover her costs of this appeal from appellant DANIELLE SPOSITO.
Judgment entered this 10th day of July, 2024.
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