Lynda Helton v. Richard A. Willner and William A. Dudley

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Lynda Helton

Appellant

Vs.                   No. 11-00-00345-CV B Appeal from Hunt County

Richard A. Willner and William A. Dudley

Appellees

Lynda Helton (movant) filed a motion for sanctions under TEX.R.CIV.P. 13, contending that Richard A. Willner and his attorney, William A. Dudley (respondents) filed a pleading alleging causes of action against her which were Agroundless@ and which were brought in bad faith or for harassment.  After hearing evidence and argument of counsel, the trial court denied the motion for sanctions.  Helton appeals,^[1] arguing that the trial court abused its discretion in denying sanctions.   We affirm.

                                                                Background Facts

Willner and Susan McBeath were never married; however, they lived together for 16 years and were the parents of a young girl. When Willner and McBeath separated in 1995, Willner filed the first lawsuit in Hunt County.  Among other issues, that lawsuit dealt with the conservatorship of the child.  In December of that year, McBeath took the child, moved to Nueces County, and filed the second lawsuit.  Among other issues, that lawsuit also dealt with the conservatorship of the child. The district judge in the second lawsuit appointed Helton to serve as attorney ad litem for the child.  In 1997, the Nueces County lawsuit was transferred to the Hunt County District Court which had first acquired continuing jurisdiction over the conservatorship of the child.

Respondents then filed pleadings in Hunt County which alleged causes of action against the child=s maternal grandparents and Helton, the attorney ad litem for the child.  Helton filed a motion for sanctions against Willner and Dudley, alleging that the causes of action alleged against her were Agroundless,@ brought in bad faith, and brought for harassment. All of the claims against the grandparents and the attorney ad litem were severed for a separate trial, and the conservatorship dispute was tried to a jury which found that Willner, the child=s father, should be appointed managing conservator of the child.  Willner then dismissed his claims against the maternal grandparents and the child=s attorney ad litem. 

When Helton urged her motion for sanctions, the trial court ruled that it did not have jurisdiction to consider the motion for sanctions.  Helton appealed that ruling to the Dallas Court of Appeals, and that court held in an unpublished opinion that the trial court did have jurisdiction to rule on the motion for sanctions which had been filed before the other issues were tried on their merits or dismissed.  After an evidentiary hearing in which Dudley and another attorney who had represented Willner testified, the trial court refused to impose sanctions.

                                                                  Issues Presented

Helton presents four issues for appellate review. The first issue is dispositive, and it reads in full as shown:

The Trial Court abused its discretion in denying sanctions against Richard Willner and Willner=s attorney, William A. Dudley, because Helton proved that [they] filed a pleading against Helton that was groundless and brought in bad faith, or was groundless and brought for the purpose of harassment.

The other three issues^[2] need not be discussed.  See TEX.R.APP.P. 47.1.

                                            Evidence at Hearing on Motion for Sanctions

Helton=s lawyers explained to the trial court that Helton was unable to attend the hearing on her motion for sanctions because of serious illness, and they advised this court that she died before the oral arguments in this court. 

Two of the attorneys who had represented Willner were called as adverse witnesses by Helton=s attorneys. Both of them testified that the pleadings which they filed were not filed in bad faith or for harassment. Helton relies upon voluminous exhibits which were attached to her motion for sanctions and which were offered into evidence at the hearing.  Respondents, Willner and Dudley, urged hearsay objections to those exhibits. Some of the exhibits are unsigned copies of pleadings, and some of the exhibits are identified as Apartial@ statements of fact.

Rule 13 refers to Aan appropriate sanction available under Rule 215-2b,@ and it also provides that courts shall Apresume that pleadings, motions, and other papers are filed in good faith.@  Rule 13 sanctions shall not be imposed Aexcept for good cause@ which must be stated in the order imposing sanctions.

The trial court announced in open court that it would screen the exhibits and that it would exclude Ahearsay, self-serving statements and irrelevant matters.@  We have reviewed the same exhibits as the trial court, and we hold that they do not conclusively establish that the pleadings were filed in bad faith or for harassment.

                                                               Abuse of Discretion

As this court recently noted in Cone v. Fagadau Energy Corporation, No. 11-00-00003-CV, slip op. at 11, 2001 WL 1663246, at *14 (Tex.App. - Eastland, Dec. 20, 2001, no pet=n h.), the imposition of sanctions under Rule 13 is Awithin the discretion of the trial court,@ and an appellate court will set aside such a decision Aonly on a showing of a clear abuse of discretion.@  The trial court was the fact finder at the hearing on the motion for sanctions, and it was authorized to believe all or any part of the testimony of the witnesses.  The exhibits which were considered by the trial court do not compel a finding that respondents filed the pleadings against movant in bad faith or for harassment.  See also Koslow=s v. Mackie, 796 S.W.2d 700, 704 (Tex.1990), where the supreme court notes that the trial court, as fact finder, hears the testimony and is able to view the demeanor of the witnesses. See also and compare, Campos v. Ysleta General Hospital, Inc., 879 S.W.2d 67, 71 (Tex.App. - El Paso 1994, pet=n den=d). The issue presented for appellate review is overruled.

                                                                 Frivolous Appeal

Respondents have asked this court to Aconsider an award of damages@ against movant pursuant to TEX.R.APP.P. 45.  That rule authorizes an appellate court to award damages against an appellant if the court determines that the appeal was frivolous.  We find that movant brought her appeal in good faith, and this court denies the request for damages under Rule 45. 

                                                                This Court=s Ruling

The issue presented for appellate review is overruled. The record shows that the trial court did not abuse its discretion in refusing to grant movant=s motion for sanctions under Rule 13. This court denies respondents= request for damages under Rule 45.

The trial court=s order is affirmed.

BOB DICKENSON

SENIOR JUSTICE

January 24, 2002

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of:  Wright, J., and

McCall, J., and Dickenson, S.J.^[3]

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^[1]Counsel on appeal informed this court that Helton died prior to oral arguments.  Pursuant to TEX.R.APP.P. 7.1(a)(1), Helton=s name will be used as the appellant in this case.

^[2]In those issues, Helton argues that: (2) the trial court abused its discretion in denying sanctions because she had overcome the presumption that the pleadings were not groundless, not brought in bad faith, nor for harassment; (3) the trial court abused its discretion in failing to award her fees and expenses; and (4) she should receive appellate attorney fees Awhich this court can take judicial notice.@

^[3]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.