Opinion
NO. 02-14-00295-CV NO. 02-14-00296-CV
03-24-2016
A. DAVID COURTADE AND IRMA LEAH ESTRADA-DAVIS A/K/A LEAH ESTRADA-DAVIS APPELLANTS v. THE GLORIA LOPEZ ESTRADA FAMILY TRUST, ALEXANDER ESTRADA, TRUSTEE APPELLEE AND IRMA LEAH ESTRADA-DAVIS A/K/A LEAH ESTRADA-DAVIS APPELLANT v. THE GLORIA LOPEZ ESTRADA FAMILY TRUST, ALEXANDER ESTRADA, TRUSTEE APPELLEE
FROM PROBATE COURT NO. 2 OF TARRANT COUNTY
TRIAL COURT NO. 2012-PR02459-1-2 FROM PROBATE COURT NO. 2 OF TARRANT COUNTY
TRIAL COURT NO. 2012-PR02459-1-2-A MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
I. INTRODUCTION
Appellant Irma Leah Estrada-Davis appeals from the trial court's summary judgment against her on the declaratory judgment action brought by Appellee Alexander Estrada, Trustee of the Gloria Lopez Estrada Family Trust, and asserts error in the entry of a sanctions order against her as well as in the dismissal of her counterclaim alleging fraud and undue influence. Her attorney, A. David Courtade, appeals from three sanction orders requiring him to pay monies to Appellee. For the reasons set forth below, we will affirm as modified.
II. FACTUAL AND PROCEDURAL BACKGROUND
The factual background of this appeal is straightforward, but the procedural background is lengthy and tedious. We provide a detailed procedural background because it is necessary to a resolution of the issues presented.
Gloria Estrada had four children: Estella Monteleone, Jose Daniel Estrada, Alexander Estrada, and Leah Estrada-Davis. Gloria executed documents creating the Gloria Lopez Estrada Family Trust on July 24, 2012; the Trust was for the benefit of Gloria for her life and its assets were to be distributed equally to her four children upon her death. To help fund the Trust, some rental properties were transferred into the Trust by deeds executed on August 6, 2012. On August 8, 2012—two days after the rental properties were transferred to the Trust—Gloria executed additional deeds that purportedly transferred title to the same rental properties to Estrada-Davis. As trustee of the Trust, Appellee filed a declaratory judgment action to clear title to the rental properties. Appellee then moved for summary judgment, asking the trial court to declare void the deeds obtained by Estrada-Davis on August 8, 2012. The trial court granted summary judgment for Appellee.
After the summary judgment was granted in Appellee's favor, Estrada-Davis hired Courtade to represent her. Despite the trial court's summary judgment ruling, Courtade and Estrada-Davis contacted the property manager of the rental properties to discuss Estrada-Davis's rights to the properties. Courtade told the property manager that Appellee had no rights to the rental properties, that Estrada-Davis had all rights to the rental properties, and that the property manager was to stop all activities in connection with the management of the properties. Courtade and Estrada-Davis told the property manager that the properties would be managed by Estrada-Davis from then on. Estrada-Davis later told one of the tenants to start sending rental payments to her rather than to the property manager. After learning of these conversations, Appellee moved for and was granted a temporary injunction to prevent Estrada-Davis from interfering with the management and control of the properties.
Before that point, Estrada-Davis had appeared pro se.
The trial court later set aside its prior summary judgment ruling so that Estrada-Davis would have a chance to respond to Appellee's motion for summary judgment while represented by counsel. Appellee moved again for summary judgment to declare void the deeds obtained by Estrada-Davis on August 8, 2012. The trial court granted partial summary judgment for Appellee, ruling that the properties were correctly titled in the name of Appellee and that the deeds to Estrada-Davis were void.
At the hearing on Estrada-Davis's motion to set aside the summary judgment ruling, the trial court stated:
Gentlemen, both probate courts tend to treat pro se's the same way, we go ahead and have hearings, and then we instruct them that if they engage [an] attorney and file a motion for new trial, it may be granted . . . . Apparently, Ms. Estrada-Davis is the exception or one of the few exceptions in that she did follow Judge King's exception or instruction and acquired counsel. So, it is—it would be my policy, and I presume it is his as well, that I would grant a motion for new trial.
And I will state for the record that I'm sorry that it does give pro se's two bites of the apple, but be that as it may, I grant it and I will expect Mr. Courtade to continue as her counsel.
The trial court made its ruling only a partial summary judgment to give Estrada-Davis an opportunity to bring a counterclaim. The ruling was also merely a partial summary judgment in that it did not address Appellee's request for attorney's fees.
Estrada-Davis then filed a counterclaim alleging fraud and undue influence. Appellee filed a motion asking that the trial court sever Estrada- Davis's counterclaim from the declaratory judgment action. Estrada-Davis did not file a response to the motion to sever nor did she otherwise object to the severance. The trial court severed Estrada-Davis's counterclaim from the declaratory judgment action. The trial court later entered a final judgment with respect to the declaratory judgment action, in which it incorporated its prior partial summary judgment ruling and also awarded Appellee attorney's fees in the amount of $89,900.95.
Appellee then moved to dismiss Estrada-Davis's counterclaim, arguing that Estrada-Davis had failed to join necessary parties—the beneficiaries of the Trust—and alternatively arguing that Estrada-Davis lacked standing to bring her counterclaim because it related to purported actions and misrepresentations made to Gloria, not to Estrada-Davis. On February 20, 2014, the trial court abated the lawsuit so that Estrada-Davis could join all necessary parties, including her three siblings. The trial court's order stated that if Estrada-Davis had not joined her three siblings by March 31, 2014, her counterclaim would be dismissed. On June 10, 2014, the trial court signed an order dismissing Estrada-Davis's counterclaim on the grounds that Estrada-Davis had not joined all necessary parties.
III. ESTRADA-DAVIS'S APPEAL
A. Complaint regarding March 28, 2013 Sanction Order
In her first issue, Estrada-Davis complains about a March 28, 2013 order requiring Courtade and her to pay $2,375 to Appellee as sanctions due to their representations to the property manager in violation of the then-existing summary judgment declaring the deeds obtained by Estrada-Davis to be void. While Estrada-Davis asserts several challenges to the March 28, 2013 order on appeal, she did not obtain a ruling from the trial court on them.
We note that the issues contained in the "Issues Presented" section of Estrada-Davis's brief do not match the issues presented in the body of her brief. Because the issues presented in the body of her brief are for the most part supported by argument, we consider the issues presented in the body of the brief as Estrada-Davis's issues on appeal.
The March 28, 2013 order awards sanctions of $2,375 to Appellee—the amount of attorney's fees Appellee incurred to obtain the March 28, 2013 order. Estrada-Davis's brief and Courtade's brief both characterize this order as a sanctions order and we address it as such.
To the extent that Estrada-Davis's or Courtade's complaints on appeal concerning the March 28, 2013 order could be construed as challenging a contempt determination, "[c]ontempt proceedings are not appealable . . . [and] can be challenged only by an original proceeding." In re Guardianship of Bays, 355 S.W.3d 715, 721-22 (Tex. App.—Fort Worth 2011, orig. proceeding). And an order of contempt does not become appealable simply because it also contains an award of attorney's fees as a sanction. Beeler v. Fuqua, 351 S.W.3d 428, 434 (Tex. App.—El Paso 2011, pet. denied); Ex parte Sealy, 870 S.W.2d 663, 667 (Tex. App.—Houston [1st Dist.] 1994, orig. proceeding). Thus, if we were to construe Estrada-Davis's and Courtade's challenges to the March 28, 2013 order as complaints based on a finding of contempt, we would lack jurisdiction to hear them. See Bays, 355 S.W.3d at 721-22.
Rule 33.1 of the Texas Rules of Appellate Procedure requires that before a party may raise a complaint on appeal, the record must show that: (1) the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling that the complaining party sought from the trial court; and (2) the trial court ruled on the request, objection, or motion, either explicitly or implicitly, or refused to rule on the request, objection, or motion, and the complaining party objected to the refusal. Tex. R. App. P. 33.1(a). While the docket sheet reflects that Estrada-Davis filed a motion asking the trial court to set aside its March 28, 2013 sanction order, the record does not indicate—nor does Estrada-Davis argue in her brief—that the trial court ever ruled on that motion, or that the trial court refused to rule on that motion and Estrada-Davis objected to said refusal. See id.
Nor does Estrada-Davis contend that the trial court implicitly ruled on her motion to set aside the March 28, 2013 order. A ruling is implicit if it is unexpressed, but capable of being understood from something else. Hogan v. J. Higgins Trucking, Inc., 197 S.W.3d 879, 883 (Tex. App.—Dallas 2006, no pet.). There is nothing in the record by which we would be capable of understanding that the trial court implicitly denied Estrada-Davis's motion. Compare Stauder v. Nichols, No. 01-08-00773-CV, 2010 WL 2306385, at *5 (Tex. App.—Houston [1st Dist.] June 10, 2010, no pet.) (mem. op.) (holding that by moving forward with summary judgment hearing, trial court implicitly denied appellant's motion to continue that hearing), with Franco v. Slavonic Mut. Fire Ins. Ass'n, 154 S.W.3d 777, 784-85 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (holding there was no implicit ruling on appellant's special exception), and Law Offices of Lin & Assocs. v. Ho, No. 14-01-01265-CV, 2002 WL 31319191, at *2 (Tex. App.—Houston [14th Dist.] Oct. 17, 2002, pet. denied) (holding error was not preserved when trial court did not rule on appellant's motion for reconsideration).
Accordingly, we hold that Estrada-Davis has waived her complaints regarding the March 28, 2013 sanction order. See, e.g., Schmidt v. BPC Corp., No. 05-14-00653-CV, 2015 WL 6538038, at *3 (Tex. App.—Dallas Oct. 29, 2015, pet. denied) ("The record does not indicate Schmidt raised any objection to the trial court regarding the lack of notice or a hearing before it imposed sanctions. Thus, to the extent Schmidt argues his due process rights were violated, his argument is waived."); Scott Bader, Inc. v. Sandstone Prods., Inc., 248 S.W.3d 802, 817-18 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (holding party waived objection to sanction award when he "never gave the trial court the opportunity to correct the alleged error"); Howell v. Tex. Workers' Comp. Comm'n, 143 S.W.3d 416, 450 (Tex. App.—Austin 2004, pet. denied) ("When an attorney fails to complain of the sanction and fails to ask the trial court to reconsider its actions . . . the attorney waives any complaint about the trial court's action."); Sterling v. Alexander, 99 S.W.3d 793, 797 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) ("We find appellant waived his objection to the trial court's sanction because he does not cite to any place in the record nor have we identified anything in the record where he preserved his argument."). We overrule Estrada-Davis's first issue.
B. Complaint regarding Summary Judgment
In her second issue, Estrada-Davis argues that the trial court erred by granting Appellee partial summary judgment on his declaratory judgment action. Estrada-Davis contends that she raised a fact issue as to who owned the rental properties.
In a summary judgment case, the issue on appeal is whether the movant met the summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).
We take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). We consider the evidence presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could and disregarding evidence contrary to the nonmovant unless reasonable jurors could not. Mann Frankfort, 289 S.W.3d at 848. We must consider whether reasonable and fair-minded jurors could differ in their conclusions in light of all of the evidence presented. See Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006); City of Keller v. Wilson, 168 S.W.3d 802, 822-24 (Tex. 2005).
Estrada-Davis argues that the August 8, 2012 deeds she obtained from Gloria raised a fact issue on Appellee's declaratory judgment claim. She also points to transcripts of twenty-four recorded conversations in which Gloria discussed her intentions regarding the rental properties. During many of those conversations—all of which occurred after August 6, 2012—Gloria expressed that she wanted the rental properties to belong to Estrada-Davis. At other times during those conversations, Gloria expressed that she wanted her property to be divided equally among her children. Estrada-Davis also points to certain documents written by Gloria as constituting a holographic will in which Gloria was to leave the rental properties to Estrada-Davis upon her death. Estrada-Davis contends that the August 8, 2012 deeds, the transcripts of the twenty-four recorded conversations, and the documents that allegedly amount to a holographic will all raise a fact issue on Appellee's declaratory judgment claim.
Estrada-Davis was physically present with Gloria when Estrada-Davis recorded each of these twenty-four conversations.
"It is axiomatic that a grantor cannot convey to a grantee a greater or better title than he holds." Law v. State, 811 S.W.2d 265, 267 (Tex. App.—Houston [1st Dist.] 1991, no pet.); Day & Co. v. Texland Petroleum, Inc., 718 S.W.2d 384, 390 (Tex. App.—Amarillo 1986), aff'd, 786 S.W.2d 667 (Tex. 1990); see Franz v. Katy Indep. Sch. Dist., 35 S.W.3d 749, 754 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (holding "a grantor cannot convey better title than he owns"); Extraction Res., Inc. v. Freeman, 555 S.W.2d 156, 159 (Tex. Civ. App.—El Paso 1977, writ ref'd n.r.e.) ("It is elementary that one cannot convey what he does not own."). Thus, "a deed conveys nothing where no title rests in the grantor." Day & Co., 718 S.W.2d at 390.
The issue decided by summary judgment concerned the title to the rental properties and the validity of the deeds to Estrada-Davis executed on August 8, 2012. Appellee presented uncontroverted evidence that the rental properties were transferred to the Trust by deeds executed on August 6, 2012. While there is also evidence that Gloria attempted to transfer the rental properties to Estrada-Davis on August 8, 2012, such evidence does not raise a fact issue concerning the title to the rental properties because Gloria did not own the rental properties on August 8, 2012. See Day & Co., 718 S.W.2d at 390. Although the transcripts reflect that Gloria possibly later changed her mind concerning the rental properties, "the deed was already done"—title to the properties had been transferred to the Trust on August 6, 2012. Thus, the transcripts of the post-August 6, 2012 recorded conversations do not raise a fact issue. Likewise, while Gloria may have intended to include in her will a provision calling for the rental properties to pass to Estrada-Davis upon her death, such a provision would not change the fact that title to the rental properties was transferred to the Trust while Gloria was living. Because Gloria did not own the rental properties, they could not pass to Estrada-Davis through the alleged holographic will. See In re Estate of Brown, 922 S.W.2d 605, 607 (Tex. App.—Texarkana 1996, no writ) (holding that a specific bequest becomes inoperative when the subject matter of the bequest disappears from the testator's estate during his lifetime).
Viewing the evidence presented in the light most favorable to Estrada-Davis, we conclude that no genuine issue of material fact exists with regard to Appellee's declaratory judgment claim and that Appellee was entitled to judgment as a matter of law. See Mann Frankfort, 289 S.W.3d at 848. We overrule Estrada-Davis's second issue.
C. Complaint regarding Order Modifying Temporary Injunction
In her third and fourth issues, Estrada-Davis complains about an order modifying the trial court's previous temporary injunction. The previous temporary injunction established that Estrada-Davis had the right to occupy one of the rental properties provided that she paid the utilities and expenses of the property. The order modifying the previous temporary injunction listed out the specific amounts that Estrada-Davis needed to pay in order to occupy the property.
Estrada-Davis complains that the trial court erred by modifying the temporary injunction because she owned the property pursuant to the August 8, 2012 deeds and because the property was exempt, and therefore not subject to execution through the turnover statute. See Tex. Civ. Prac. & Rem. Code Ann. § 31.002 (West 2015). As explained above, Estrada-Davis had no ownership interest with respect to any of the rental properties. The properties were deeded to the Trust on August 6, 2012, and the trial court correctly voided the conflicting August 8, 2012 deeds. Estrada-Davis's argument regarding the turnover statute is inapplicable. That statute applies when a judgment creditor seeks a court order requiring a judgment debtor to turn over her non-exempt property. See id. Here, there was no turnover of Estrada-Davis's property—she never owned any of the rental properties to begin with. We overrule Estrada-Davis's third and fourth issues.
Estrada-Davis also presented no evidence showing that the subject rental property was "exempt" at the time the trial court modified its temporary injunction.
D. Complaint regarding Severance
In her fifth issue, Estrada-Davis complains that the trial court erred by severing her counterclaim into a separate cause number. As pointed out by Appellee, Estrada-Davis did not file a response to the motion for severance or otherwise object to the severance in the trial court.
Again, to preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling, if they are not apparent from the context of the request, objection, or motion. Tex. R. App. P. 33.1(a). If a party fails to do this, error is not preserved, and the complaint is waived. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh'g).
As Estrada-Davis did not object to the severance in the trial court, error is not preserved, and her complaint on appeal regarding severance is waived. See Pena v. Perel, 417 S.W.3d 552, 555-56 (Tex. App.—El Paso 2013, no pet.) (appellant waived his right to complain about severance on appeal when he failed to present an objection to the trial court); Dixon Fin. Servs., Ltd. v. Greenberg, Peden, Siegmyer & Oshman, P.C., No. 01-06-00696-CV, 2008 WL 746548, at *12 (Tex. App.—Houston [1st Dist.] Mar. 20, 2008, pet. denied) ("Dixon Financial has waived its right to complain about the severance on appeal because it did not object to the severance in the trial court."). We overrule Estrada-Davis's fifth issue.
E. Complaint regarding Order Requiring Estrada-Davis
to Vacate One of the Rental Properties
In her sixth issue, Estrada-Davis complains about an order requiring her to vacate one of the rental properties. Estrada-Davis avers that through this order her "Human Rights were extremely violated, and her Texas and Constitutional rights of due process." Estrada-Davis provides no substantive analysis, no citations to the record, and no citations to any legal authorities to support this argument. We thus hold that she waived her sixth issue due to inadequate briefing. See Tex. R. App. P. 38.1; Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994) (observing that error may be waived by inadequate briefing). We overrule Estrada-Davis's sixth issue.
The sole analysis is Estrada-Davis's statement that the order is "the exact opposite" of what Gloria had written in her alleged holographic will and that the court's previous "turnover order" was invalid. As discussed above, there was no turnover of Estrada-Davis's property, and as Gloria did not own the rental properties, they could not pass to Estrada-Davis through the alleged holographic will. See Estate of Brown, 922 S.W.2d at 607.
F. Complaint regarding Award of Attorney's Fees
In her seventh and ninth issues, Estrada-Davis complains that the trial court erred by entering a final judgment that awarded attorney's fees to Appellee in the amount of $83,626.02 and an amended final judgment that awarded attorney's fees to Appellee in the amount of $89,900.95.
Estrada-Davis argues that "there was no legal valid basis" to award Appellee his attorney's fees. But Appellee brought his suit under the Uniform Declaratory Judgment Act (UDJA) and requested attorney's fees pursuant to the UDJA. The UDJA provides that in any proceeding under the Act, "the court may award costs and reasonable and necessary attorney's fees as are equitable and just." Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (West 2015). This court will reverse an award of attorney's fees under the UDJA only if the trial court abused its discretion by either (1) awarding fees when there was insufficient evidence that the fees were reasonable and necessary or (2) acting arbitrarily, unreasonably, or without regard to guiding legal principles in its determination that the fees awarded were equitable and just. Bocquet v. Herring, 972 S.W.2d 19, 20-21 (Tex. 1998). Whether it is "equitable and just" to award attorney's fees depends on the concept of fairness, in light of all the circumstances of the case. Ridge Oil Co. v. Guinn Invs., Inc., 148 S.W.3d 143, 162 (Tex. 2004); Approach Res. I, L.P. v. Clayton, 360 S.W.3d 632, 639 (Tex. App.—El Paso 2012, no pet.).
Here, Appellee's attorney, David C. Bakutis, testified concerning the reasonableness and necessity of Appellee's attorney's fees. Bakutis presented evidence that he has been in practice since 1980, and that he is board certified in estate planning and probate law. He testified regarding the various unique issues faced during this litigation, and how Estrada-Davis's conduct necessitated Appellee obtaining a temporary restraining order and temporary injunction. He also presented an itemized billing statement reflecting the work done on behalf of Appellee and the amount charged for such work. Estrada-Davis presented no evidence to controvert Bakutis's testimony.
Based on our review of the record, we conclude that the trial court was within its discretion to award attorney's fees under the UDJA because there was sufficient evidence that the fees were reasonable and necessary and because, in light of the circumstances of the case, the trial court was within its discretion to determine that an award of attorney's fees was equitable and just. See Bocquet, 972 S.W.2d at 20-21; Ridge Oil Co., 148 S.W.3d at 162.
Appellee also requested attorney's fees pursuant to section 114.031 of the property code. That section provides that a beneficiary is liable for loss to the trust if the beneficiary "misappropriated or otherwise wrongfully dealt with the trust property." Tex. Prop. Code Ann. § 114.031 (West 2014). That section also authorizes a trustee to offset a liability of the beneficiary to the trust estate against the beneficiary's interest in the trust estate. Id.
Estrada-Davis argues that section 114.031 does not apply because she did not misappropriate or otherwise wrongfully deal with the trust property. The rental properties became property of the Trust on August 6, 2012. The record reflects that Estrada-Davis continued to live in one of the rental properties after August 6, 2012 without paying rent despite a demand from Appellee that Estrada-Davis either pay rent or vacate the premises. The record also reflects that in March 2013, Estrada-Davis contacted the property manager of the rental properties and told her that she, Estrada-Davis, would manage the properties from then on, despite not having the authority to do so. In March 2013, Estrada-Davis also told one of the tenants to start sending rental payments to her rather than to the property manager. Due to Estrada-Davis's misappropriation and wrongful acts with respect to the Trust's property, the Trust incurred substantial attorney's fees. The trial court was therefore within its discretion to offset those attorney's fees against Estrada-Davis's interest in the Trust. See Tex. Prop. Code Ann. § 114.031. Thus, both the UDJA and section 114.031 of the property code provided a valid legal basis for the award of attorney's fees.
Estrada-Davis also complains that the trial court erred by awarding attorney's fees because there was no explanation for the $6,274.93 increase in fees between the original final judgment that awarded $83,626.02 and the amended final judgment that awarded $89,900.95. Bakutis, however, presented unsworn testimony that the increase in fees related to additional work done in the week prior to the final hearing. While this testimony was unsworn, Estrada-Davis's failure to object to it waived any complaint that the testimony was inadmissible. See Thomas v. Daniel, No. 02-12-00397-CV, 2013 WL 3771321, at *2 (Tex. App.—Fort Worth July 18, 2013, no pet.) (mem. op.) (holding that appellant's failure to object to lawyer's unsworn testimony as to attorney's fees waived any claim that the lawyer's testimony was inadmissible); Olsen v. Comm'n for Lawyer Discipline, 347 S.W.3d 876, 890 (Tex. App.—Dallas 2011, pet. denied) (same). We hold that the trial court did not abuse its discretion in awarding the additional $6,274.93 in attorney's fees.
Estrada-Davis mistakenly refers to the difference as only $5,374.93.
Estrada-Davis also complains of the trial court's award of $10,000 to Appellee in the event Estrada-Davis appealed to this court and an additional $5,000 if she appealed to the supreme court. We note that this award of appellate attorney's fees is unconditional—it is charged against Estrada-Davis regardless of whether she prevails in her appeal or not. A trial court may not grant an unconditional award of appellate attorney's fees; to do so could penalize a party for making a meritorious appeal. In re Ford Motor Co., 988 S.W.2d 714, 721 (Tex. 1998); Messier v. Messier, 458 S.W.3d 155, 170 (Tex. App.—Houston [14th Dist.] 2015, no pet.). However, an unconditional award of appellate attorney's fees does not require reversal; instead, we may modify a trial court's judgment to make the award of appellate attorney's fees contingent upon the receiving party's success on appeal. Messier, 458 S.W.3d at 170; Wright v. Wright, 280 S.W.3d 901, 915 (Tex. App.—Eastland 2009, no pet.). We therefore modify the trial court's award of appellate attorney's fees to make it contingent on Appellee's success on appeal. We otherwise overrule Estrada-Davis's seventh and ninth issues.
G. Complaint regarding Dismissal of Estrada-Davis's Counterclaim
In her eighth issue, Estrada-Davis complains that the trial court erred by dismissing her counterclaim for her failure to serve her three siblings. While Appellee maintains that the trial court did not err in dismissing Estrada-Davis's counterclaim on that ground, Appellee contends in its sole cross issue that, alternatively, the trial court did not err in dismissing Estrada-Davis's counterclaim because she lacked standing to bring such a claim.
Standing is a necessary component of subject-matter jurisdiction, without which a court lacks authority to hear a case. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444-45 (Tex. 1993). Because standing is a component of subject-matter jurisdiction, it may be raised for the first time on appeal. Id. at 445-46. Whether a pleader has alleged facts that affirmatively demonstrate a trial court's subject-matter jurisdiction is a question of law reviewed de novo. Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 502 (Tex. 2010). The standing doctrine requires a concrete injury to the plaintiff. Heckman v. Williamson Cty., 369 S.W.3d 137, 154 (Tex. 2012). The plaintiff must be personally injured—she must plead facts demonstrating that she, herself, rather than a third party, suffered the injury. Id. at 155. The standing inquiry "requires careful judicial examination of a complaint's allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted." Id. at 156.
Here, Estrada-Davis filed a counterclaim against her siblings alleging fraud and undue influence. Estrada-Davis alleges that her siblings made certain misrepresentations to Gloria immediately prior to the signing of the Trust agreement and that they unduly influenced Gloria to sign the Trust agreement. As pointed out by Appellee, Estrada-Davis does not allege that any misrepresentations were made to her or that anyone unduly influenced her. Rather, Estrada-Davis complains that the misrepresentations were made to Gloria and that Gloria was unduly influenced to sign the Trust agreement.
As Estrada-Davis has only pleaded facts demonstrating a purported injury to Gloria—not to Estrada-Davis herself—she lacks standing. See Heckman, 369 S.W.3d at 155. Because she lacks standing, the trial court appropriately dismissed her counterclaim. See id. ("if a plaintiff lacks standing to assert one of his claims, the court lacks jurisdiction over that claim and must dismiss it."). We sustain Appellee's sole cross issue.
Gloria's estate, rather than Estrada-Davis individually, would possess standing to bring these claims. See Frazier v. Wynn, 472 S.W.2d 750, 752 (Tex. 1971) ("It is settled in Texas that the personal representative of the estate of a decedent is ordinarily the only person entitled to sue for the recovery of property belonging to the estate.").
Because we sustain Appellee's sole cross issue, we need not consider Estrada-Davis's eighth issue. See Tex. R. App. P. 47.1 (requiring appellate court to address only issues necessary for disposition of the appeal).
H. Complaint regarding Fraud
In her tenth issue, Estrada-Davis contends—in one narrative paragraph—that the trial court erred by granting "all of the above orders" because said orders "were the result of Fraud, Misrepresentations, Conflict of Interests [sic], Theft, and Acquiring legal document's [sic] by deceit . . . ." Estrada-Davis provides no substantive analysis, no citations to the record, and no citations to any legal authorities to support this argument. We thus hold that she waived her tenth issue due to inadequate briefing. See Tex. R. App. P. 38.1; Fredonia State Bank, 881 S.W.2d at 284. We overrule Estrada-Davis's tenth issue.
I. Complaint regarding the Invalidity of the Trust
In her eleventh issue, Estrada-Davis argues that the Trust is invalid because in October 2012, Gloria signed documents stating that she revoked all powers of attorney naming Appellee as her attorney in fact. Those revocation documents say nothing, however, about revoking the Trust. Moreover, the documents revoking Gloria's power of attorney naming Appellee as her attorney in fact were signed over two months after the properties had been deeded to the Trust. Thus, they do not change the fact that the Trust owns the rental properties. We overrule Estrada-Davis's eleventh issue.
The record contains two separate documents that purportedly revoked Gloria's power of attorney appointing Appellee as her attorney in fact, one dated October 7, 2012, and the other dated October 18, 2012.
Even if the revocation documents had contained language purporting to revoke the Trust, the Trust could only be revoked with the written consent and agreement of Appellee, as the Trust agreement expressly provides that "[t]his Trust may not be amended, modified or revoked without the written consent and agreement of the Trustee."
IV. COURTADE'S APPEAL
Courtade appeals from three orders requiring him to pay monies to Appellee as sanctions. We review the imposition of sanctions for an abuse of discretion. Nath v. Texas Children's Hosp., 446 S.W.3d 355, 361 (Tex. 2014); Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 2009). An assessment of sanctions will be reversed only if the trial court acted without reference to any guiding rules and principles, such that its ruling was arbitrary and unreasonable. Unifund CCR Partners, 299 S.W.3d at 97.
A. Complaint regarding the March 28, 2013 Order
In his first issue, Courtade complains about the March 28, 2013 order requiring Estrada-Davis and him to pay $2,375 to Appellee as sanctions. While Courtade asserts several challenges to that order on appeal, those challenges were not presented to the trial court for ruling.
As stated above, rule 33.1 of the Texas Rules of Appellate Procedure requires that before a party may raise a complaint on appeal, the record must show that: (1) the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling that the complaining party sought from the trial court; and (2) the trial court ruled on the request, objection, or motion, either explicitly or implicitly, or refused to rule on the request, objection, or motion, and the complaining party objected to the refusal. Tex. R. App. P. 33.1(a). While the docket sheet reflects that Estrada-Davis (not Courtade) filed a motion asking the trial court to set aside its March 28, 2013 sanction order, the record does not indicate—nor does Courtade argue in his brief—that the trial court ever ruled on that motion, or that the trial court refused to rule on Estrada-Davis's motion and Courtade (or Estrada-Davis) objected to said refusal. See id. Accordingly, we hold that Courtade waived his complaints regarding the March 28, 2013 sanction order. See Schmidt, 2015 WL 6538038, at *3; Scott Bader, 248 S.W.3d at 817-18; Howell, 143 S.W.3d at 450; Sterling, 99 S.W.3d at 797. We overrule Courtade's first issue.
Nor does Courtade (or Estrada-Davis) contend that the trial court implicitly ruled on the complaints set forth in Estrada-Davis's motion to set aside the March 28, 2013 order. As stated above, a ruling is implicit if it is unexpressed, but capable of being understood from something else. Hogan, 197 S.W.3d at 883. There is nothing in the record by which we would be capable of understanding which, if any, of the complaints the trial court considered and implicitly denied in Estrada-Davis's motion. Compare Stauder, 2010 WL 2306385, at *5, with Franco, 154 S.W.3d at 784-85, and Ho, 2002 WL 31319191, at *2.
B. Complaints regarding the February 20, 2014 Order
and the June 10, 2014 Order
In his second and third issues, Courtade complains that the trial court abused its discretion by signing a February 20, 2014 order requiring him to pay $1,000 to Appellee's counsel as sanctions and a June 10, 2014 order requiring him to pay an additional $2,000 in sanctions. Those sanctions came about after the trial court found that Courtade violated its previous order requiring him to provide certain contact information to Appellee's counsel. The prior order required that Courtade provide Appellee's counsel with: (1) a full-time fax number or email address to which documents could be delivered, (2) telephone contact information, and (3) either a physical address where service could be normally achieved between the hours of 9:00 a.m. and 5:00 p.m. or a waiver accepting service on behalf of Estrada-Davis by regular U.S. mail.
The order requiring Courtade to provide Appellee's counsel with his contact information came about after Appellee's counsel presented evidence showing he had great difficulties in contacting Courtade, particularly as it related to serving documents in accordance with Texas Rule of Civil Procedure 21a. The record reflects that Courtade did not have a telephone that he or his staff answered; rather, he had an answering service. Cindi Adler, a paralegal working for Bakutis, McCully & Sawyer—the law firm that represented Appellee— testified that she had called the answering service and left a message for Courtade to call her back on "probably 50 or more" occasions; she could not, however, recall a single instance when Courtade actually returned her call. While Courtade had a fax machine, the record reflects that the fax machine was often not turned on. Adler testified that she was unable to fax documents to Courtade on the majority of occasions she tried because her machine received a "no answer" error. Adler also testified that Courtade told her that "sometimes he had his fax machine on and sometimes it was off." Steve Fields, the court administrator for the trial court, also testified that on the two occasions he attempted to fax documents to Courtade he was unable to get the fax to go through because Courtade's fax machine "would not pick up."
We note that the trial court's order requiring Courtade to provide his contact information was entered prior to the December 11, 2013 amendments to Rule 21a that added language relating to electronic service. See Tex. R. Civ. P. 21a. We also note that Courtade did not have an email address during much of the underlying litigation.
Adler testified that this most likely indicated that Courtade's fax machine was not turned on.
Courtade did not have a physical office; rather, he practiced out of an apartment. Throughout the litigation, Courtade refused to give Appellee's counsel that address. Courtade reasoned that if Appellee's counsel wanted to serve him with something, Appellee's counsel could simply mail it to his post-office box. The problem with that approach was that Courtade did not check his post-office box daily. Adler testified that when she sent documents to Courtade's post-office box by certified mail, it would sometimes take two or three weeks for Courtade to pick it up. Courtade acknowledged that this sometimes presented a problem, but he told the trial court, "You know, it only becomes a problem when someone is trying to do real, real quick, emergency . . . ." The trial court correctly interjected that "some times in law, Mr. Courtade, things have to be done quickly and on an emergency basis. And it's not up to you to decide whether or not somebody else's pleading is an emergency or not."
On appeal, Courtade argues that the trial court abused its discretion in awarding sanctions against him because the trial court was "without valid legal authority" to issue the sanction awards. A trial court possesses inherent power to discipline an attorney's behavior and inherent power "which it may call upon to aid in the exercise of its jurisdiction, in the administration of justice, and in the preservation of its independence and integrity." In re Bennett, 960 S.W.2d 35, 40 (Tex. 1997) (orig. proceeding), cert. denied, 525 U.S. 823 (1998). The trial court's inherent power includes the authority to sanction an attorney for failing to comply with a valid court order incident to one of its core functions. Ezeoke v. Tracy, 349 S.W.3d 679, 685 (Tex. App.—Houston [14th Dist.] 2011, no pet.). A trial court's core functions include the management of its docket and the issuance and enforcement of its orders. In re K.A.R., 171 S.W.3d 705, 715 (Tex. App.—Houston [14th Dist.] 2005, no pet.).
Here, the trial court was within its discretion to sanction Courtade because he did not comply with its order requiring him to provide his contact information to Appellee's attorney. That order related to one of the trial court's core functions—the management of its docket—and was necessary because Courtade had not provided reliable means for Appellee's counsel to serve documents upon Estrada-Davis. See id. Texas Rule of Civil Procedure 21a provides that a trial court may authorize service "by such other manner as the court in its discretion may direct." Tex. R. Civ. P. 21a. Based on the record, we hold that the trial court did not abuse its discretion in ordering Courtade to provide Appellee's counsel with his contact information, nor did it abuse its discretion in sanctioning Courtade for failing to comply with that order.
Courtade also contends that the order requiring him to provide his contact information "clearly violated [his] right to privacy under the Texas and United States Constitutions." Courtade provides no substantive analysis or citations to legal authorities—apart from the general reference to the "Texas and United States Constitutions"—to support his argument. We thus hold that he waived this complaint due to inadequate briefing. See Tex. R. App. P. 38.1; Fredonia State Bank, 881 S.W.2d at 284.
To the extent that Courtade's argument is based on having to provide Appellee's counsel with his home address—that was the basis of his argument at the hearings on Appellee's motions for sanctions—we note that the order requiring Courtade to provide his contact information simply required him to provide Appellee's counsel with a physical address—not necessarily his home address—where service could be effectuated or alternatively, a waiver that allowed Estrada-Davis to be served by regular U.S. mail.
Without citing to the record or providing any substantive analysis, Courtade next complains that the trial court allowed "all sorts of hearsay and irrelevant testimony and evidence that should never have been allowed" and "unjustly den[ied] Appellant Courtade the right to cross-examine witnesses or present proper rebuttal evidence of his own" when it conducted its hearings on Appellee's motions for sanctions. An appellate court is not required to search the appellate record, with no guidance from the briefing party, to determine if the record supports the party's argument. Hall v. Stephenson, 919 S.W.2d 454, 466-67 (Tex. App.—Fort Worth 1996, writ denied). Thus, an inadequately briefed issue may be waived on appeal. Id. at 467; Fredonia State Bank, 881 S.W.2d at 284. We hold that Courtade waived his argument relating to the testimony of the hearings on Appellee's motions for sanctions.
Courtade next contends that the June 10, 2014 order is void because the trial court had lost jurisdiction when that order was entered. Generally, a trial court retains jurisdiction over a case for thirty days after entry of judgment. Tex. R. Civ. P. 329b(d); Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000). In this case, a final judgment was entered on June 10, 2014, and an amended final judgment was entered on June 17, 2014. The trial court thus possessed jurisdiction when it entered its June 10, 2014 sanctions order. See Lane Bank Equip. Co., 10 S.W.3d at 310.
This period is extended, however, upon the timely filing of a motion for new trial or a motion to correct, modify, or reform the judgment. Lane Bank Equip. Co., 10 S.W.3d at 310.
Estrada-Davis filed a motion to set aside the amended final judgment and a motion for new trial on July 17, 2014.
We hold that the trial court did not abuse its discretion by entering the February 20, 2014 and June 10, 2014 orders. We overrule Courtade's second and third issues.
V. CONCLUSION
Having overruled Estrada-Davis's issues 1-7 and 9-11, having sustained Appellee's sole cross issue, and having overruled Courtade's three issues, we affirm the trial court's judgment with the modification that the trial court's award of appellate attorney's fees is contingent on Appellee's success on appeal.
Again, we need not consider Estrada-Davis's eighth issue because we sustained Appellee's sole cross issue. See Tex. R. App. P. 47.1.
/s/ Sue Walker
SUE WALKER
JUSTICE PANEL: GARDNER, WALKER, and MEIER, JJ. DELIVERED: March 24, 2016