Sheryl Johnson-Todd v. John S. Morgan

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-17-00168-CV
NO. 09-17-00194-CV
____________________
SHERYL JOHNSON-TODD, Appellant
V.
JOHN S. MORGAN, Appellee
and
JOHN S. MORGAN, Appellant
V.
SHERYL JOHNSON-TODD, Appellee
__________________________________________________________________
On Appeal from the County Court at Law No. 1
Jefferson County, Texas
Trial Cause No. 126841
__________________________________________________________________
MEMORANDUM OPINION
This opinion addresses two appeals in trial cause number 126841, which this
Court has consolidated for purposes of appeal. In appellate cause number 09-17-
1
00168-CV, Sheryl Johnson-Todd filed an accelerated appeal, challenging the trial
court’s order denying her motion to dismiss John S. Morgan’s 2017 motions for
sanctions under the Texas Citizens Participation Act (“TCPA”). In appellate cause
number 09-17-00194-CV, Morgan appeals the trial court’s final judgment awarding
Johnson-Todd attorney’s fees and sanctions under the TCPA for a 2014 suit Morgan
filed against Johnson-Todd. We overrule all the parties’ issues except for the trial
court’s ruling denying Johnson-Todd’s request for an award of attorney’s fees,
expenses, and court costs for this appeal.
Procedural Background
In December 2014, Morgan filed suit against Johnson-Todd, his ex-wife’s
divorce attorney, for damages and injunctive relief, alleging that Johnson-Todd
violated court orders by disclosing and publishing restricted information that
Morgan asserted was subject to an order of non-disclosure. See Johnson-Todd v.
Morgan, 480 S.W.3d 605, 606-08 (Tex. App.—Beaumont 2015, pet. denied).
Johnson-Todd filed a motion to dismiss Morgan’s suit under the TCPA, arguing that
she should not be subjected to suit for providing a court with information about
Morgan in a case in which she was acting as an attorney for a party. See id. at 606,
608; see also Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a) (West 2015) (providing
that a party may file a motion to dismiss a legal action if the legal action is based on,
2
relates to, or is in response to the party’s exercise of the right to petition). After
Johnson-Todd’s motion to dismiss was overruled by operation of law, Johnson-Todd
filed an interlocutory appeal. See Johnson-Todd, 480 S.W.3d at 609.
On appeal, this Court concluded that the trial court was required to dismiss
Morgan’s suit against Johnson-Todd because the complained-of disclosures that
Johnson-Todd made in the family-law proceeding were based on, related to, or were
in response to Johnson-Todd’s or her client’s exercise of the right to petition. See
id.; see also Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b) (West 2015).
Accordingly, we reversed the trial court’s ruling and remanded the case to the trial
court with instructions to enter a judgment dismissing Morgan’s 2014 claims and to
award Johnson-Todd damages and costs as provided by the TCPA. See Johnson-
Todd, 480 S.W.3d at 612; see also Tex. Civ. Prac. & Rem. Code Ann. § 27.009
(West 2015). The mandate issued by this Court provides, in pertinent part, that the
“cause is remanded to the trial court for further proceedings consistent with this
Court’s opinion[,]” and that all costs of the appeal are assessed against Morgan.
The record shows that after we remanded the case, Johnson-Todd filed an
amended motion to award mandatory attorney’s fees and sanctions under the TCPA.
Before the trial court rendered a final judgment awarding Johnson-Todd damages
and costs, Johnson-Todd filed a second amended motion to declare Morgan a
3
vexatious litigant and require Morgan to furnish security. Additionally, in 2017,
Morgan filed two motions seeking sanctions against Johnson-Todd and her counsel,
Jeffrey Dorrell, under Rule 13 of the Texas Rules of Civil Procedure, section 10.001
of the Texas Civil Practice and Remedies Code, and the trial court’s inherent
authority. In his first motion, Morgan argued that the trial court should sanction
Johnson-Todd for filing motions to declare Morgan a vexatious litigant. According
to Morgan, Johnson-Todd’s motions to declare him vexatious are groundless in law
and fact, filed for the purpose of harassment, and grossly misrepresented the law and
facts to the court. In his second motion for sanctions, Morgan contends that Johnson-
Todd should be sanctioned for filing motions for protection that allegedly contained
false statements. In both of his motions for sanctions, Morgan acknowledged that he
has the burden of proving that Johnson-Todd’s motions were groundless and filed in
bad faith or for the purposes of harassment.
Johnson-Todd filed a motion to dismiss Morgan’s motions for sanctions under
the TCPA, arguing that Morgan’s motions are “legal actions” that relate to Johnson-
Todd’s exercise of the right to petition and that Morgan cannot show “clear and
specific evidence” of each element of his claims. In his response to Johnson-Todd’s
motion to dismiss, Morgan argued that his motions for sanctions do not qualify as
“legal actions” subject to dismissal under the TCPA because the motions are not
4
new, independent, affirmative claims for relief or for monetary damages. According
to Morgan, his motions for sanctions are derivative claims based on pleadings that
were previously filed, and the TCPA does not provide for interlocutory appeals
every time a party files a motion for sanctions. Morgan also filed a motion to dismiss
Johnson-Todd’s motion for sanctions under the TCPA, arguing, among other things,
that because Johnson-Todd has argued that motions for sanctions violate the TCPA,
Johnson-Todd is estopped from arguing that her motion for sanctions does not
violate the TCPA.
The trial court denied Johnson-Todd’s motion to dismiss Morgan’s motions
for sanctions under the TCPA, and Johnson-Todd filed a second interlocutory appeal
in this case. The trial court also denied Morgan’s motions for sanctions and motion
to dismiss under the TCPA. Upon remand, the trial court entered a final judgment.
Among other things, the judgment dismisses Morgan’s claims against Johnson-Todd
and orders Morgan to pay Johnson-Todd the following amounts: $40,000 in total
reasonable attorney’s fees, litigation expenses, and court costs for the trial and two
appeals that occurred before the trial court rendered the final judgment; and $25,000
in sanctions sufficient to deter Morgan from filing similar actions in the future.
Morgan appealed the trial court’s judgment awarding Johnson-Todd attorney’s fees
and sanctions, and Johnson-Todd filed a cross-appeal.
5
Johnson-Todd’s Appeal
In two issues on appeal, Johnson-Todd challenges the trial court’s denial of
her motion to dismiss Morgan’s post-remand motions for sanctions under the TCPA.
When an appellate court remands a case and limits the remand to a particular issue,
the trial court may only determine that particular issue. Hudson v. Wakefield, 711
S.W.2d 628, 630 (Tex. 1986). Thus, instructions given to a trial court in a former
appeal will be adhered to and enforced in a subsequent appeal. Id. When interpreting
the mandate of an appellate court, courts should look not only to the language in the
mandate, but also to the court’s opinion. Id.
In Johnson-Todd, this Court instructed the trial court to dismiss Morgan’s
2014 claims and to award Johnson-Todd damages and costs, and our mandate
instructed the trial court to conduct further proceedings consistent with this Court’s
opinion. See Johnson-Todd, 480 S.W.3d at 612. Our instructions in the prior appeal
did not allow the trial court to consider Johnson-Todd’s post-remand motion to
dismiss Morgan’s 2017 motions for sanctions under the TCPA. See Hudson, 711
S.W.2d at 630; Johnson-Todd, 480 S.W.3d at 612. We conclude that the trial court
had no authority to consider Johnson-Todd’s post-remand motion to dismiss. See
Phillips v. Bramlett, 407 S.W.3d 229, 234 (Tex. 2013). Although the trial court
6
exceeded its authority and acted beyond the scope of our remand by considering
Johnson-Todd’s motion, the error is harmless because the trial court denied Johnson-
Todd’s motion to dismiss. See id. We overrule issues one and two and affirm the
trial court’s order denying Johnson-Todd’s motion to dismiss.
Morgan’s Appeal
Morgan appeals the trial court’s judgment awarding Johnson-Todd attorney’s
fees and sanctions. In six appellate issues, Morgan argues that: (1) the trial court
abused its discretion by awarding $40,000 in TCPA attorney’s fees; (2) the trial court
erred by refusing to exclude Johnson-Todd’s attorney’s fees evidence under Texas
Rules of Civil Procedure 193.6 and 215; (3) the trial court abused its discretion by
awarding $25,000 in sanctions; (4) Johnson-Todd is not entitled to recover appellate
attorney’s fees; (5) the administrative judge erred in denying Morgan’s verified
motion to recuse; and (6) the trial court erred by permitting Johnson-Todd’s attorney
to provide evidence on TCPA attorney’s fees and sanctions because Morgan did not
have sufficient notice.
In his first issue, Morgan argues that the trial court abused its discretion by
awarding $40,000 in attorney’s fees because there is either no evidence or
insufficient evidence to support the trial court’s award. In two cross-issues, Johnson-
Todd contends that the trial court abused its discretion by awarding $40,000 in
7
attorney’s fees, because she presented extensive evidence showing that her
reasonable attorney’s fees in defending Morgan’s suit totaled $191,865 as of March
15, 2017. Johnson-Todd submitted forty-one pages of billing records and an affidavit
from Dorrell, in which Dorrell addressed the relevant factors under the lodestar
method for determining a reasonable attorney’s fee and offered an opinion regarding
the amount of reasonable attorney’s fees Johnson-Todd had incurred. Morgan filed
a controverting affidavit, in which he averred that Johnson-Todd sought an
unreasonable amount of attorney’s fees that included an unreasonable billing rate,
unnecessary and repeated work, work unrelated to the TCPA, excessive briefing,
unreasonable charges for a legal assistant, and continual review of the file.
We review a trial court’s award of attorney’s fees under the TCPA for an
abuse of discretion. Sullivan v. Abraham, 488 S.W.3d 294, 299 (Tex. 2016). If the
trial court dismisses a legal action under the TCPA, the trial court must award “court
costs, reasonable attorney’s fees, and other expenses incurred in defending against
the legal action as justice and equity may require[.]” Tex. Civ. Prac. & Rem. Code
Ann. 27.009(a)(1); Sullivan, 488 S.W.3d at 299. “A reasonable [attorney’s] fee is
one that is not excessive or extreme, but rather moderate or fair.” Garcia v. Gomez,
319 S.W.3d 638, 642 (Tex. 2010).
8
The record shows that the parties applied the lodestar method and the Arthur
Andersen factors to the attorney’s fee evaluation. See El Apple I, Ltd. v. Olivas, 370
S.W.3d 757, 760 (Tex. 2012); Arthur Andersen & Co. v. Perry Equip. Corp., 945
S.W.2d 812, 818 (Tex. 1997). Although the award of attorney’s fees generally rests
in the sound discretion of the trial court, a party applying for an award of attorney’s
fees under the lodestar method bears the burden of documenting the hours expended
on the litigation and the value of those hours. El Apple I, 370 S.W.3d at 761. Under
the lodestar method, the trial court: (1) determines the reasonable hours spent by
counsel in the case and a reasonable hourly rate for such work and multiplies the
reasonable number of hours by the applicable rate to produce the base fee or lodestar;
and (2) adjusts the base lodestar up or down by applying a multiplier, if relevant
factors indicate an adjustment is necessary to reach a reasonable fee in the case. Id.
at 760. “Charges for duplicative, excessive, or inadequately documented work
should be excluded.” Id. at 762. The nonexclusive factors considered in determining
the reasonableness of an attorney’s fee include: (1) the time and labor required, the
novelty and difficulty of the questions involved, and the skill required to perform the
legal service properly; (2) the likelihood that acceptance of the particular
employment will preclude other employment by the lawyer; (3) the fee customarily
charged in the locality for similar legal services; (4) the amount involved and the
9
results obtained; (5) the time limitations imposed by the client or by the
circumstances; (6) the nature and length of the professional relationship with the
client; (7) the experience, reputation, and ability of the lawyer performing the
services; and (8) whether the fee is fixed or contingent on results obtained or the
uncertainty of collection before the legal services have been rendered. Arthur
Andersen, 945 S.W.2d at 818. “We generally accord considerable deference to a trial
court’s findings regarding whether prevailing counsel’s claimed hours are excessive,
redundant, or unreasonable.” El Apple I, 370 S.W.3d at 763-64.
The award of attorney’s fees under the TCPA rests within the trial court’s
discretion. Sullivan, 488 S.W.3d at 299. In reviewing the trial court’s ruling for an
abuse of that discretion, we determine whether the trial court acted arbitrarily and
unreasonably, without reference to any guiding principles. McGibney v. Rauhauser,
549 S.W.3d 816, 820 (Tex. App.—Fort Worth 2018, pet. denied). “In the proper
exercise of its discretion, a trial judge is obliged to do more than simply act as a
rubber-stamp, accepting carte blanche the amount appearing on the bill.” Id. at 821.
The award must be based upon supporting evidence. Id. Because Morgan filed a
controverting affidavit, Johnson-Todd had the burden of proving the reasonableness
of the amount of attorney’s fees in Dorrell’s bill. See id. at 826.
10
Dorrell testified that as of March 15, 2017, Johnson-Todd had incurred
$191,865 in attorney’s fees and $3918.88 in expenses, and that all the attorney’s fees
had been incurred in prosecuting the TCPA motion to dismiss except for a few
thousand dollars for preparing a motion for summary judgment and a few hundred
dollars for drafting documents related to a counterclaim. Dorrell explained that the
attorney’s fees included two appeals to this Court as well as two petitions to the
Texas Supreme Court. Dorrell submitted an affidavit for TCPA attorney’s fees and
attached billing records to support his claim for attorney’s fees. Dorrell testified that
he was asking for attorney’s fees the substantive legal work performed on this case.
Dorrell further testified about the Arthur Andersen factors and explained that in his
opinion, Johnson-Todd’s attorney’s fees were reasonable. During a subsequent
hearing, Dorrell offered an updated bill and testified that as of April 20, 2017,
Johnson-Todd had incurred $229,067.88 in attorney’s fees.
Morgan offered testimony summing up his controverting affidavit regarding
TCPA attorney’s fees. Morgan testified that Dorrell did not segregate the actual
attorney’s fees relating to the TCPA, billed for motions unrelated to the TCPA, and
billed for filing amended motions to dismiss that Morgan alleged were unwarranted.
According to Morgan, Dorrell’s attorney’s fees were not reasonable, necessary, or
justified under the TCPA. Morgan cross-examined Dorrell about repeatedly
11
amending motions and about filing motions that were unrelated to the TCPA, but
Dorrell maintained that his work fell within the purview of defending the lawsuit.
The trial court awarded Johnson-Todd $40,000 in attorney’s fees. The trial court did
not make any detailed findings but found “[t]otal reasonable attorney’s fees,
litigation expenses, and court costs for the trial and first two appeals of $40,000[.]”
Our review of the record shows that Johnson-Todd’s billing records from
Dorrell included attorney’s fees that are excessive or extreme, not moderate or fair.
See Sullivan, 488 S.W.3d at 299. The billing records show that Dorrell not only
billed for matters unrelated to the TCPA, but also billed a substantial number of
hours to prepare amended documents, repeatedly review the file, research and
prepare for the appeals, and prepare documents to litigate matters that were beyond
the scope of our remand. The billing records show excessive hours devoted to filing
the motion to award attorney’s fees and sanctions and for preparing the affidavit on
attorney’s fees that Johnson-Todd incurred in the case.
When a statute authorizes fee-shifting, the party seeking to recover those fees
bears the burden of establishing the reasonableness of the fee sought. See In re Nat’l
Lloyds Ins. Co., 532 S.W.3d 794, 809 (Tex. 2017). Before fees can be shifted from
the incurring party to the opposing party, the calculation of a reasonable attorney’s
fee that is “not excessive or extreme, but rather moderate or fair” requires deep
12
scrutiny. See Sullivan, 488 S.W.3d at 299. Because the billing records reflect
duplicative and excessive work, as well as work unrelated to the TCPA, it was
reasonable for the trial court to eliminate those charges in determining a reasonable
attorney’s fee. See El Apple I, 370 S.W.3d at 762. It was also reasonable for the trial
court to exclude attorney’s fees for matters that were beyond the scope of our
remand. See Johnson-Todd, 480 S.W.3d at 612.
Giving considerable deference to the trial court’s determination regarding
whether Dorrell’s claimed hours for work performed in defending the lawsuit are
excessive, redundant, or unreasonable, we conclude that the trial court did not abuse
its discretion by awarding $40,000 in attorney’s fees. See El Apple I, 370 S.W.3d at
762; McGibney, 549 S.W.3d at 824. Accordingly, we overrule Morgan’s first issue.
We also overrule Johnson-Todd’s second cross-issue, as well as her argument in her
first cross-issue complaining that the trial court abused its discretion by awarding
only $40,000 in attorney’s fees.
In issue two, Morgan complains that the trial court erred by refusing to
exclude all Johnson-Todd’s evidence regarding attorney’s fees under Rules 193.6
and 215.2 of the Texas Rules of Civil Procedure. Morgan argues that the trial court
should have excluded Johnson-Todd’s evidence regarding attorney’s fees because
she abused the discovery process by ignoring deposition notices, requests for
13
production, and subpoenas duces tecum for the deposition notices. See Tex. R. Civ.
P. 215.2(b). In his motion to strike Johnson-Todd’s evidence regarding attorney’s
fees, Morgan maintains that Johnson-Todd’s and Dorrell’s refusal to properly appear
for their depositions denied him the opportunity to “any discovery.” Morgan also
complains that Johnson-Todd refused to produce documents in response to his
request for production and that such documents were essential for Morgan to
controvert Johnson-Todd’s claim for TCPA attorney’s fees and sanctions.
According to Morgan, because Johnson-Todd failed to timely respond to his
discovery requests without showing good cause or unfair surprise or prejudice, the
trial court should have excluded Johnson-Todd’s evidence. See Tex. R. Civ. P.
193.6.
We review a trial court’s decision denying discovery under the TCPA for an
abuse of discretion. Walker v. Shion, 420 S.W.3d 454, 458 (Tex. App.—Houston
[14th Dist.] 2014, no pet.). If the trial court abuses its discretion by denying
discovery, the complaining party must show harm to obtain a reversal. Ford Motor
Co. v. Castillo, 279 S.W.3d 656, 667 (Tex. 2009); see Tex. R. App. P. 44.1(a). An
error is harmful if it “probably caused the rendition of an improper judgment[]” or
“probably prevented the appellant from properly presenting the case to the court of
appeals.” Tex. R. App. P. 44.1(a).
14
On the filing of a motion to dismiss under the TCPA, all discovery in the legal
action is suspended until the trial court has ruled on the motion to dismiss. Tex. Civ.
Prac. & Rem. Code Ann. § 27.003(c) (West 2015). However, on a motion by a party
or on the court’s own motion, and based on a showing of good cause, the trial court
may allow specified and limited discovery relevant to a motion to dismiss under the
TCPA. Id. § 27.006(b) (West 2015). On remand, Johnson-Todd propounded
interrogatories and requests for production to Morgan to aid the trial court in
determining the amount of sanctions, and Johnson-Todd maintained that this Court’s
ruling had lifted the automatic discovery stay under the TCPA. Morgan objected to
Johnson-Todd’s interrogatories and requests for production. Morgan then filed
deposition notices, subpoenas duces tecum, and requests for production.
The record shows that when the parties filed their discovery requests in 2016,
all discovery was suspended because the trial court had not yet ruled on Johnson-
Todd’s motion to dismiss. See Tex. Civ. Prac. & Rem. Code Ann. § 27.003(c). The
record does not show that either party filed a motion showing good cause for the trial
court to allow “specified and limited discovery” relevant to the scope of our remand.
See id. § 27.006(b). Nor does the record show that the trial court, on its own motion,
allowed the parties to conduct specified and limited discovery regarding attorney’s
fees and sanctions, which would have been within the trial court’s discretion. See id.
15
Although Morgan claimed that taking the noticed depositions was directly relevant
to the amount of attorney’s fees and sanctions that may be awarded, Morgan’s
notices contained an eleven item subpoena duces tecum that requested documents
concerning matters that were beyond the scope of our remand. The record further
shows that Morgan’s requests for production also included documents that were
beyond the scope of our remand.
Morgan filed a motion to compel depositions and all responsive documents
pursuant to the subpoena duces tecum for each deposition, arguing that he was
entitled to discovery on the issue of attorney’s fees. Morgan complained that
Johnson-Todd did not file motions to quash the depositions or objections to the
subpoenas duces tecum or requests for production. In response to Morgan’s
discovery requests, Johnson-Todd filed a motion for protection. In her motion for
protection, Johnson-Todd argued that Morgan had propounded discovery requests
in violation of the trial court’s stay and that Morgan had failed to request “specified
and limited discovery” as provided by the TCPA. Morgan complained that Johnson-
Todd’s motion for protection was frivolous.
In January 2017, the trial court conducted a hearing and heard arguments
concerning Johnson-Todd’s motion to award attorney’s fees and sanctions as
instructed by this Court’s remand, as well as arguments regarding Morgan’s motion
16
to exclude Johnson-Todd’s evidence because of discovery abuse. During the
hearing, Johnson-Todd argued that the TCPA suspends all discovery until the trial
court dismisses all claims under the TCPA. Morgan argued that his claims had
already been dismissed. According to Morgan, when this Court’s opinion dismissed
his claims and lifted the discovery stay, he sent deposition notices and subpoenas
duces tecum to Johnson-Todd and Dorrell, and because Johnson-Todd and Dorrell
failed to file any objections or motions to quash, Johnson-Todd’s evidence regarding
attorney’s fees should be excluded. After hearing arguments, the trial court granted
Johnson-Todd’s motion to dismiss and awarded attorney’s fees in the amount of
$5000 and sanctions in the amount of $2500.
Approximately three months later, the trial court conducted a second hearing,
during which the trial court discussed its decision to reconsider its prior award of
attorney’s fees and sanctions. Dorrell advised the trial court that because Morgan
controverted Dorrell’s affidavit, Dorrell was required to present evidence of
Johnson-Todd’s attorney’s fees by expert testimony. Morgan objected to Dorrell
offering expert testimony because Dorrell had ignored Morgan’s discovery and
prevented Morgan from taking depositions that related to the issue of attorney’s fees.
At that point, the trial court denied Morgan’s second amended motion to strike
Johnson-Todd’s evidence on attorney’s fees and Morgan’s motion to compel
17
depositions. After Dorrell testified regarding attorney’s fees and offered an updated
statement of attorney’s fees, Morgan objected to Dorrell offering new evidence of
attorney’s fees. The trial court overruled Morgan’s objection, stating that it had given
the parties notice that it would consider any motions and allow new evidence. During
the trial court’s third hearing on attorney’s fees and sanctions, Morgan reiterated his
objection that he had been denied the opportunity to conduct discovery.
Assuming without deciding that the trial court abused its discretion by
denying Morgan’s motion to compel and motion to strike all Johnson-Todd’s
evidence regarding attorney’s fees, Morgan has failed to show harm. See Castillo,
279 S.W.3d at 667; see also Tex. R. App. P. 44.1(a). The record shows that Morgan
had an opportunity to cross-examine Dorrell regarding Dorrell’s affidavit for TCPA
attorney’s fees and whether individual entries in Dorrell’s bill were incurred in filing
the motion to dismiss under the TCPA. Morgan also filed a controverting affidavit
regarding Johnson-Todd’s request for attorney’s fees and sanctions and offered
testimony that $5000 was a reasonable attorney’s fee award. The record further
shows that although Johnson-Todd requested $229,000 in attorney’s fees, the trial
court only awarded $40,000 in attorney’s fees, which included litigation expenses,
court costs, and the first two appeals. We conclude that on this record, Morgan has
failed to show that the trial court’s rulings probably caused the rendition of an
18
improper judgment or probably prevented him from properly presenting the case on
appeal. See Castillo, 279 S.W.3d at 667; see also Tex. R. App. P. 44.1(a).
Accordingly, we overrule issue two.
In issue three, Morgan argues that the trial court abused its discretion by
awarding $25,000 in sanctions, and Johnson-Todd argues in her third cross-issue
that this award was not an abuse of discretion. Section 27.009 of the TCPA requires
the trial court to award sanctions if it dismisses a claim pursuant to section 27.003,
and the trial court has broad discretion in determining the amount of sanctions. Tex.
Civ. Prac. & Rem. Code Ann. § 27.009(a)(2); see Sullivan, 488 S.W.3d at 299. The
amount of sanctions should be sufficient to deter the party who brought the legal
action from bringing similar actions in the future. Tex. Civ. Prac. & Rem. Code Ann.
§ 27.009(a)(2). Section 27.009 does not expressly require the trial court to explain
how it reached its determination. See id.; cf. id. § 10.005 (West 2017).
During the hearing, Dorrell requested that the trial court award a sanction of
$229,000 to deter Morgan from filing similar lawsuits in the future. Dorrell
explained to the trial court that in determining the amount of TCPA sanctions, the
trial court should consider Morgan’s history of filing similar suits, the amount of
attorney’s fees incurred in the suit, and any aggravating misconduct. Dorrell
represented to the trial court that while Morgan had not been previously sanctioned
19
under the TCPA, Morgan had a history of filing similar actions prior to the enactment
of the TCPA. Dorrell stated that Johnson-Todd had incurred $229,000 in attorney’s
fees defending against Morgan’s 2014 suit, which this Court concluded was required
to be dismissed. Dorrell argued that the trial court should consider Morgan’s history
of harassing Johnson-Todd and Dorrell, which is a pattern of behavior that Dorrell
has experienced in other cases with Morgan. Dorrell explained that he was asking
for a sanction of $229,000, an amount equal to the requested attorney’s fees.
During the hearing, Morgan disputed Dorrell’s contention that Morgan had a
history of filing similar actions that showed aggravating misconduct. Morgan argued
that the cases that Dorrell cited were filed before the TCPA was enacted, some of
the cases were resolved by agreement, and he had not been previously sanctioned.
Morgan explained to the trial court that he filed the 2014 suit against Johnson-Todd
so that his information would remain sealed. According to Morgan, a TCPA sanction
is not a punishment but a deterrent, and Morgan claimed that he was deterred and
did not want to be in this situation again. According to Morgan, a sanction of $1000
would sufficiently discourage him from filing similar suits in the future. The record
shows that after the trial court heard arguments regarding Morgan’s history of filing
similar actions, the trial court awarded a $25,000 sanction, finding that amount
sufficient to deter Morgan from filing similar actions.
20
It was within the trial court’s discretion to weigh the evidence and determine
how large the sanction needed to be to accomplish its statutory purpose. See Am.
Heritage Capital, LP v. Gonzalez, 436 S.W.3d 865, 881 (Tex. App.—Dallas 2014,
no pet.). Given the history of the litigation, the trial court could have reasonably
determined that a lesser sanction would not have served the purpose of deterrence.
See Stromberger v. Turley Law Firm, 315 S.W.3d 921, 924-25 (Tex. App.—Dallas
2010, no pet.) (awarding sanctions based on conduct over a two-year period). We
also note that the trial court awarded a sanction that was substantially smaller than
the one that Johnson-Todd sought. Based on this record, and considering the broad
discretion provided to the trial court by section 27.009, we conclude that the trial
court did not abuse its discretion in determining that a $25,000 sanction was required
to deter further actions by Morgan. We overrule Morgan’s third issue and sustain
Johnson-Todd’s third cross-issue.
In issue four, Morgan argues that Johnson-Todd is not entitled to recover
conditional appellate attorney’s fees. In her first cross-issue, Johnson-Todd
complains that the trial court abused its discretion by failing to award conditional
appellate attorney’s fees. Dorrell offered testimony that $50,000 was the proper
amount of conditional attorney’s fees for an appeal to the Court of Appeals and an
additional $25,000 if Morgan filed a petition for review that did not result in a
21
complete reversal. In his controverting sworn affidavit regarding attorney’s fees,
Morgan averred that the trial court should award no more than $1000 for any
successful appeal by Johnson-Todd. Although the record contains evidence of
conditional appellate attorney’s fees, the trial court did not award Johnson-Todd any
conditional attorney’s fees for a subsequent appeal.
Generally, when a statute requires the trial court to award attorney’s fees to
the prevailing party, “the trial court has no discretion to deny attorney’s fees when
presented with evidence of the same.” Ventling v. Johnson, 466 S.W.3d 143, 154
(Tex. 2015). When a trial court dismisses a legal action under the TCPA, section
27.009 requires the trial court to award reasonable attorney’s fees, which includes
appellate attorney’s fees. Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a)(1);
DeAngelis v. Protective Parents Coal., 556 S.W.3d 836, 864-65 (Tex. App.—Fort
Worth 2018, no pet.). We conclude the trial court abused its discretion by failing to
award conditional attorney’s fees for this appeal, and we reverse the trial court’s
failure to grant Johnson-Todd’s request for an award of conditional attorney’s fees
incurred in defending the award against Morgan’s appeal. Therefore, we remand the
case to the trial court to award Johnson-Todd the attorney’s fees and expenses she
incurred in defending the trial court’s award as authorized by the TCPA. See
22
DeAngelis, 556 S.W.3d at 865. We overrule Morgan’s fourth issue and sustain
Johnson-Todd’s first cross-issue in part.
In issue five, Morgan complains that the administrative judge erred in denying
his motion to recuse the presiding trial judge. According to Morgan’s motion,
Morgan received emails that were exchanged between non-parties that allegedly
show that the trial judge, after January 25, 2017, had ex parte communications with
Johnson-Todd’s representatives. Morgan attached the emails to his motion and
asserted that the emails corroborated his claim that the trial court was influenced by
the emails he received from an individual who was not a party to the litigation.
According to Morgan, one of the emails affirmatively states that the trial judge had
an ex parte communication with one of Johnson-Todd’s representatives, which
caused the trial judge to change his past ruling on the issue of TCPA attorney’s fees
and sanctions and to make a new ruling against Morgan. Morgan argued that these
rulings, along with Morgan’s lack of notice of a bench trial and his inability to
conduct discovery, show that the trial judge had a pervasive bias against Morgan
from an extrajudicial source and that the judge’s impartiality might reasonably be
questioned, making recusal mandatory.
We review the denial of a motion to recuse for an abuse of discretion. See Tex.
R. Civ. P. 18a(j)(1)(A). “A party seeking recusal must satisfy a ‘high threshold’
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before a judge must be recused.” In the Interest of E.R.C., 496 S.W.3d 270, 279
(Tex. App.—Texarkana 2016, pet. denied). Under Texas Rule of Civil Procedure
18b(1) and (2), a judge shall recuse himself in any proceeding in which his
impartiality “might reasonably be questioned[]” or in which he has a “personal bias
or prejudice concerning the subject matter or a party[.]” Tex. R. Civ. P. 18b(1), (2).
Morgan had the burden to prove recusal was warranted, and such a burden is only
met through a showing of bias or impartiality to such an extent that he was deprived
of a fair trial. In the Interest of H.M.S., 349 S.W.3d 250, 253 (Tex. App.—Dallas
2011, pet. denied). A judicial ruling alone almost never constitutes a valid basis for
a motion to recuse based on bias or partiality. See id. at 255. Under Rule 18b(2), the
test for recusal is “‘whether a reasonable member of the public at large, knowing all
the facts in the public domain concerning the judge’s conduct, would have a
reasonable doubt that the judge is actually impartial.’” Hansen v. JP Morgan Chase
Bank, N.A., 346 S.W.3d 769, 776 (Tex. App.—Dallas 2011, no pet.) (quoting Sears
v. Olivarez, 28 S.W.3d 611, 615 (Tex. App.—Corpus Christi 2000, no pet.)); see
also Tex. R. Civ. P. 18(b)(2).
The record shows that on January 26, 2017, the day after the trial judge
initially ruled on attorney’s fees and sanctions, he sent a letter to the parties
indicating that he would reconsider his prior ruling because he wanted to ensure that
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his ruling comports with the law, especially Sullivan v. Abraham, 488 S.W.3d 294
(Tex. 2016). The record further shows that the trial judge conducted a second hearing
on April 21, 2017, during which he made various rulings that Morgan complained
about in his motion to recuse. According to Morgan, these rulings and the emails
Morgan attached to his motion provide substantial evidence to demonstrate that the
trial judge’s impartiality can be reasonably questioned and that he has a pervasive
bias and antagonism against Morgan that was derived from an extrajudicial source.
After reviewing the evidence that Morgan attached to his motion to recuse,
including Dorrell’s affidavit denying any relationship with the purported author of
the emails, we conclude that Morgan failed to show under the applicable law that
the trial judge displayed a bias or prejudice towards Morgan that would make a fair
judgment impossible. See In the Interest of H.M.S., 349 S.W.3d at 256. We further
conclude that a reasonable person, being aware of all the facts, would not doubt that
the trial judge was impartial. See Hansen, 346 S.W.3d at 776. Accordingly, the
administrative judge did not abuse his discretion in denying Morgan’s motion to
recuse. We overrule issue five.
In issue six, Morgan complains that the trial court erred by permitting Dorrell
to testify and provide evidence regarding attorney’s fees and sanctions, because
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Morgan did not receive forty-five days’ notice of a bench trial. In her cross-issue,
Johnson-Todd contends that Morgan waived his complaint by failing to assert it
before the hearing began on April 21, 2017.
The record shows that Morgan did not object to a lack of notice during the
April 21 hearing. The record further shows that the trial court recessed the April 21
hearing, and when the hearing resumed on April 28, 2017, Morgan then complained
that he was entitled to forty-five days’ notice. The trial court overruled Morgan’s
objection. Based on this record, we conclude that Morgan failed to preserve his
complaint for our review. See Tex. R. App. P. 33.1. We overrule Morgan’s sixth
issue. Having determined that Morgan waived his issue six complaint, we need not
address Johnson-Todd’s fourth cross-issue, as it would not result in greater relief.
See Tex. R. App. P. 47.1.
Conclusion
We hold the trial court did not err by awarding Johnson-Todd $40,000 in
attorney’s fees, expenses, and court costs or by awarding $25,000 in sanctions under
the TCPA. Nevertheless, we further hold the trial court erred by failing to award
Johnson-Todd some amount for the attorney’s fees, expenses, and court costs that
she incurred for defending against Morgan’s legal action, as authorized by section
27.009(a)(1) of the TCPA. See Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a)(1).
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For that reason, we remand the case to the trial court for further proceedings
consistent with the scope of this limited remand.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
______________________________
STEVE McKEITHEN
Chief Justice
Submitted on October 17, 2018
Opinion Delivered December 20, 2018
Before McKeithen, C.J., Kreger and Horton, JJ.
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