Opinion
No. 10-04-00322-CV
Opinion Delivered and Filed August 10, 2005.
Appeal from the 18th District Court, Johnson County, Texas, Trial Court No. C200400085.
Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Chief Justice Gray concurs in the judgment only)
MEMORANDUM OPINION
Appellants filed suit against a sitting judge after the judge refused to permit Bradley Parsons to appear for Larry Elwell in Elwell's appeal of a Class C misdemeanor conviction. The trial court dismissed the suit as frivolous and ordered Appellants to pay Judge Robert Mayfield's attorney's fees. Appellants contend in six issues that: (1) "their right to the use [of] a tool of law" was denied; (2) their right to the pursuit of happiness was denied; (3) their right to contract was denied; (4) the court erroneously found that their suit was filed in bad faith; (5) their right to petition the government for redress of grievances was denied; and (6) their suit cannot be maintained under 42 U.S.C. § 1983 as alleged by Appellee. We will affirm and grant Mayfield's request for sanctions.
Appellants' First Amended Petition lists six allegations arising from Mayfield's denial of Parsons's request to appear for Elwell pursuant to a duly executed power of attorney: (1) denial of Appellants' right to contract under the state and federal constitutions; (2) denial of Elwell's right to counsel under both constitutions; (3) denial of Elwell's right to due course of law under the Texas Constitution; (4) denial of Appellants' right to liberty under both constitutions; (5) violation of the separation of powers provisions of the Texas Constitution; and (6) making of a false statement "which [Appellants] were forced to rely upon to their detriment."
Appellants' First Amended Petition also identifies four causes of action: (1) violation of Elwell's right to contract and his right to due course of law thereby causing damages of $125,000; (2) violation of Parsons's right to contract thereby causing damages of $125,000; (3) making a false statement (that Parsons could not appear on Elwell's behalf) which Elwell and Parsons "were forced to rely on" thereby causing damages of $2,500,000; and (4) commission of sedition thereby causing damages of $2,500,000.
Mayfield filed a general denial, asserted "judicial, official and/or qualified immunity," and specially excepted to Appellant's First Amended Petition on the basis that the petition failed to state an actionable claim.
The trial court sustained Mayfield's special exceptions and gave Appellants twenty days to replead. The court's order specifically required Appellants to replead the six initial allegations regarding denials of their constitutional rights and other violations and assert "valid cause[s] of action under Texas law." The order required Appellants to specify the false statement which served as the basis for their fraud claim and how they relied to their detriment on that statement. The order also required Appellants to replead their sedition claim "to assert a cause of action for which relief can be granted."
Appellants alleged in their Second Amended Petition (among other allegations) that Mayfield denied their constitutional right to contract because: (1) they are not "person[s]" as that term is defined by article 17A.01(b)(4) of the Code of Criminal Procedure; (2) Chapter 81 of the Government Code, which prohibits the unauthorized practice of law, does not apply to Appellants because they "are sovereigns." They alleged that Mayfield denied their constitutional right to counsel because the Sixth Amendment does not require that counsel be a licensed practitioner. They alleged that Mayfield denied Elwell's right to due course of law because he did not permit Elwell to be represented by counsel of his own choosing.
Article 17A.01(b)(4) provides that, unless the context requires otherwise, the terms "[p]erson," "he," and "him" in the Code of Criminal Procedure "include corporation[s] and association[s]." Tex. Code Crim. Proc. Ann. art. 17A.01(b)(4) (Vernon 2005).
Section 81.102(a) provides that, with 3 exceptions not applicable here, "a person may not practice law in this state unless the person is a member of the state bar." TEX. GOV'T CODE ANN. § 81.102(a) (Vernon 2005).
Appellants alleged in the Second Amended Petition that Mayfield denied them their right to liberty and the pursuit of happiness because no criminal law prohibits Parsons from representing Elwell. They contended that Mayfield violated the separation of powers provisions of the Texas Constitution by: (1) "craft[ing] a law which prohibited Parsons [from representing] Elwell," (2) submitting this law to himself for approval; and (3) "immediately enforce[ing] the law he had just crafted." They contended that Mayfield committed sedition by: (1) "altering the constitutional form of government of this state" by "legislating from the bench" and committing the various constitutional violations alleged; and (2) knowingly participating in the management of Johnson County which engaged or attempted to engage in an attempt to alter the constitutional form of government of this state.
Section 557.001(a)(1) of the Government Code provides that a person commits the offense of sedition if the person "commits, attempts to commit, or conspires with one or more persons to commit an act intended to overthrow, destroy, or alter the constitutional form of government of this state or of any political subdivision of this state by force or violence." TEX. GOV'T CODE ANN. § 557.001(a)(1) (Vernon 2004).
Subsection (a)(3) provides that a person commits the offense of sedition if the person "participates, with knowledge of the nature of the organization, in the management of an organization that engages in or attempts to engage in an act intended to overthrow, destroy, or alter the constitutional form of government of this state or of any political subdivision of this state by force or violence." Id. § 557.001(a)(3) (Vernon 2004).
They alleged that Mayfield committed fraud by prohibiting "Parsons from acting as Elwell," by failing "to disclose that Parsons had a right to do so," and by failing to disclose "that Elwell had a right to Parsons'[s] services [under the power of attorney]."
The only substantive difference between the "Causes of Action" alleged in the First Amended Petition and the Second Amended Petition was that in the latter Appellants listed Mayfield's alleged violation of Elwell's right to contract and the alleged violation of his right to due course of law separately, seeking $125,000 for each.
Mayfield responded to Appellants' amended pleading with a motion to dismiss and a motion for sanctions. Mayfield contended in his motion to dismiss that Appellants' Second Amended Petition did not alter the substance of the allegations against him "despite increased verbiage." He sought a finding that Appellants' suit was frivolous and sought as sanctions an order that Appellants pay his court costs, attorney's fees, and out-of-pocket expenses.
After a hearing, the court granted Mayfield's motions to dismiss and for sanctions. The court dismissed the suit with prejudice and ordered Appellants to pay costs of court and Mayfield's attorney's fees of $6,000.
Standard Of Review
We review an order sustaining or denying special exceptions for an abuse of discretion. Adams v. First Natl. Bank of Bells/Savoy, 154 S.W.3d 859, 876 (Tex.App.-Dallas 2005, no pet.); Mulvey v. Mobil Producing Tex. N.M., Inc., 147 S.W.3d 594, 603 (Tex.App.-Corpus Christi 2004, pet. denied). Here however, Appellants challenge the court's dismissal of their suit after they amended their petition, not the court's prior order sustaining Mayfield's special exceptions. In such a case, we "accept as true all the material factual allegations and all factual statements reasonably inferred from the allegations set forth in the pleading." Sherman v. Triton Energy Corp., 124 S.W.3d 272, 281-82 (Tex.App.-Dallas 2003, pet. denied) (citing Sorokolit v. Rhodes, 889 S.W.2d 239, 240 (Tex. 1994)). We review the dismissal for an abuse of discretion. Id. at 282.
Power Of Attorney
Appellants contend in their first issue that the court's dismissal of their suit was erroneous because the court failed to recognize their statutory right to use a power of attorney. This issue (and the whole of Appellants' lawsuit) rests primarily on their assertion that the Durable Power of Attorney Act applies to criminal prosecutions. It does not, however.
Appellants' first issue actually embraces two sub-issues: (1) whether an attorney in fact under a power of attorney may "appear as" the principal; and (2) whether an attorney in fact under a power of attorney may act as counsel for the principal.
Article I, section 10 of the Texas Constitution and article 1.05 of the Code of Criminal Procedure both provide that a criminal defendant has "the right of being heard by himself or counsel, or both." Tex. Const. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 1.05 (Vernon 2005). Section 500(4) of the Durable Power of Attorney Act provides that an attorney in fact under a power of attorney is empowered to, "in connection with an action or litigation, perform any lawful act the principal could perform. . . ." TEX. PROB. CODE ANN. § 500(4) (Vernon 2003).
First, we hold that the provisions of the Durable Power of Attorney Act apply to only civil litigation and not to criminal prosecutions. Cf. TEX. CODE CRIM. PROC. ANN. art. 1.02 (Vernon 2005) ("The procedure herein prescribed shall govern all criminal proceedings instituted after the effective date of this Act"). In addition, the specific provisions of the Code of Criminal Procedure control over the more general provisions of the Durable Power of Attorney Act with respect to criminal procedure. See Tex. Gov't Code Ann. § 311.026(a) (Vernon 2005). Therefore, an attorney in fact under a power of attorney has no authority to "appear as" a defendant in criminal proceedings.
The statutory and constitutional right to counsel in criminal prosecutions is limited to licensed counsel. See Coyle v. State, 775 S.W.2d 843, 844-45 (Tex.App.-Dallas 1989, no pet.) (citing Harkins v. Murphy Bolanz, 51 Tex. Civ. App. 568, 112 S.W. 136, 138 (1908, writ dism'd)). This is so because a power of attorney designates another as the principal's "attorney in fact" or agent. Tex. Prob. Code Ann. § 482(1) (Vernon 2003).
An "attorney in fact" is "one who is designated to transact business for another; a legal agent." Black's Law Dictionary 138 (Bryan A. Garner ed., 8th ed., West 2004); see also Harkins, 112 S.W. at 138; TEX. PROB. CODE ANN. § 491(7) (Vernon 2003) (under power of attorney, attorney in fact/agent is empowered to "engage, compensate, and discharge an attorney"). Conversely, an attorney at law is one "who practices law; [a] lawyer." Black's Law Dictionary at 138; see also Harkins, 112 S.W. at 138.
From these authorities we hold that the designation of someone as attorney in fact under a power of attorney does not authorize the designee to act as counsel ( i.e., a licensed attorney) for the principal in a criminal proceeding. Accordingly, we cannot say that the court abused its discretion by concluding that Appellants had failed to state an actionable claim with regard to their contention that Parsons was legally authorized by a power of attorney to represent (or "appear as") Elwell in Elwell's criminal prosecution. Thus, we overrule Appellants' first issue.
Right To The Pursuit Of Happiness
Appellants contend in their second issue that the dismissal denied them their constitutional right to the pursuit of happiness.
We begin by observing that the right to "the pursuit of happiness" was recognized in the Declaration of Independence, not the United States Constitution. See Declaration of Independence [¶ 2] (1776); Jenicke v. City of Forest Hill, 873 S.W.2d 776, 782 (Tex.App.-Fort Worth 1994, no writ). Nevertheless,
the liberty guaranteed by the Fourteenth Amendment "`denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men.'"
The Fourteenth Amendment provides in pertinent part that no State shall "deprive any person of life, liberty, or property, without due process of law." U.S. CONST. AMEND. XIV, § 1.
The Fourteenth Amendment provides in pertinent part that no State shall "deprive any person of life, liberty, or property, without due process of law." U.S. CONST. AMEND. XIV, § 1.
Conn v. Gabbert, 526 U.S. 286, 291, 119 S. Ct. 1292, 1295, 143 L. Ed. 2d 399 (1999) (footnote added) (quoting Bd. of Regents v. Roth, 408 U.S. 564, 572, 92 S. Ct. 2701, 2706-07, 33 L. Ed. 2d 548 (1972) (quoting Meyer v. Neb., 262 U.S. 390, 399, 43 S. Ct. 625, 626, 67 L. Ed. 1042 (1923))); see also Higbie v. State, 780 S.W.2d 228, 232 (Tex.Crim.App. 1989).
If Appellants' "pursuit-of-happiness claim" were construed as an allegation that their right to liberty was denied without due process of law, a private cause of action for such a denial is provided by 42 U.S.C. § 1983. However, Appellants clearly state in their pleadings that their suit is not brought under this statute. See e.g. Appellants' Br. 4 (Feb. 15, 2005) ("Appellants submit that 42 U.S.C. 1983 is not available to them. . . .").
42 U.S.C.A. § 1983 provides in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.
42 U.S.C.A. § 1983 (West 2003).
Accordingly, we cannot say that the court abused its discretion by concluding that Appellants had failed to state an actionable claim with regard to their contention that the dismissal denied them their right to the pursuit of happiness. Thus, we overrule Appellants' second issue.
Right To Contract
Appellants contend in their third issue that the dismissal denied them their right to contract under the state and federal constitutions.
Appellants cite article I, section 10 of the United States Constitution as the basis for the federal component of this claim. As with any other claim seeking damages for violation of a right under the United States Constitution, a private cause of action may be pursued under 42 U.S.C.A. § 1983. Again however, Appellants have clearly state in their pleadings that their suit is not brought under this statute. Accordingly, we cannot say that the court abused its discretion by concluding that Appellants had failed to state an actionable claim with regard to their contention that the dismissal denied them their right to contract under the federal constitution.
Article I, § 10 provides in pertinent part:
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
U.S. CONST. art. I, § 10, cl. 1.
Appellants cite article I, section 16 of the Texas Constitution as the basis for the state component of this claim. However, there is no private cause of action for violations of the Texas Constitution. See City of Beaumont v. Bouillion, 896 S.W.2d 143, 147 (Tex. 1995); City of Robstown v. Ramirez, 17 S.W.3d 268, 276 n. 3 (Tex.App.-Corpus Christi 2000, pet. dism'd w.o.j.). Accordingly, we cannot say that the court abused its discretion by concluding that Appellants had failed to state an actionable claim with regard to their contention that the dismissal denied them their right to contract under the state constitution.
Article I, § 16 provides, "No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made." TEX. CONST. art. I, § 16.
Thus, we overrule Appellants' third issue.
Sanctions
Appellants contend in their fourth issue that the court erred by finding that their suit was filed in bad faith and by awarding attorney's fees to Mayfield as a sanction. We construe this as an allegation that there is no evidence to support the court's implied finding that their suit is groundless.
Mayfield sought sanctions under Rules of Civil Procedure 13 and 18a(h) and under Chapter 10 of the Civil Practice and Remedies Code. Mayfield's appellate brief focuses on section 10.001(2) of the Civil Practice and Remedies Code, so we begin there.
Section 10.001(2) provides:
The signing of a pleading or motion as required by the Texas Rules of Civil Procedure constitutes a certificate by the signatory that to the signatory's best knowledge, information, and belief, formed after reasonable inquiry:
. . .
(2) each claim, defense, or other legal contention in the pleading or motion is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.
TEX. CIV. PRAC. REM. CODE ANN. § 10.001(2) (Vernon 2002). Section 10.004 authorizes a court to impose sanctions for a violation of section 10.001. Id. § 10.004 (Vernon 2002).
Unlike Rule 13 and Chapter 9 of the Civil Practice and Remedies Code, section 10.001 does not contain a bad faith requirement. Cf. id. § 9.011(1) (Vernon 2002) (by signing pleading, signatory certifies that pleading is not "groundless and brought in bad faith"); Tex. R. Civ. P. 13 (same). Instead, the signatory certifies under section 10.001(2) that "each claim, defense, or other legal contention in the pleading or motion is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law." (emphasis added).
These provisions also permit sanctions when it is found that a pleading is groundless and filed for purposes of harassment. See TEX. CIV. PRAC. REM. CODE ANN. §§ 9.011(2), 9.012(a) (Vernon 2002); TEX. R. CIV. P. 13. Sanctions are also permitted when it is found that a pleading is "groundless and interposed for any improper purpose, such as to cause unnecessary delay or needless increase in the cost of litigation." See TEX. CIV. PRAC. REM. CODE ANN. §§ 9.011(3), 9.012(a) (Vernon 2002).
We construe this "nonfrivolous" requirement to be the same as the "good faith" requirement found in Rule 18 and section 9.001(3). See TEX. CIV. PRAC. REM. CODE ANN. § 9.001(3)(B) (Vernon 2002) (defining "groundless" in part as "not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law") (emphasis added); Tex. R. Civ. P. 13 ("`Groundless' for purposes of this rule means no basis in law or fact and not warranted by good faith argument for the extension, modification, or reversal of existing law.") (emphasis added).
As noted, section 9.011 and Rule 13 both require findings that a pleading is both groundless and filed in bad faith before sanctions are justified. Because good faith is written into the definition of groundless for each of these provisions, the absence of good faith does not necessarily equate to the existence of bad faith. See Tex. Gov't Code Ann. § 311.021(1) (Vernon 2005) (in construing statute, "it is presumed that . . . the entire statute is intended to be effective"). Nevertheless, the opposite is true. Namely, the existence of bad faith does equate to an absence of good faith.
It has been held in cases construing Rule 13 that a party acts in bad faith if he has been put on notice that his claim may be groundless and he does not make reasonable inquiry before pursuing the claim further. See Elkins v. Stotts-Brown, 103 S.W.3d 664, 668-69 (Tex.App.-Dallas 2003, no pet.).
Here, Mayfield's special exceptions put Appellants on notice that their claims may be groundless. Appellants do not dispute that they did not substantively amend their claims after the trial court sustained Mayfield's special exceptions. They contend that they "began this action in the full expectation that they would be successful. Prior to beginning the action, they engaged in a lot of legal research. . . ." Appellants' Br. at 9 (emphasis added). This extensive research led them to the conclusion that the State Bar Act is unconstitutional.
However, Appellants did not make this assertion as a basis for relief in the trial court.
Mayfield's special exceptions put Appellants on notice that their claims may be groundless. Appellants thereafter filed an amended petition which did not substantively amend their claims for relief. This would support a finding of bad faith on Appellants' part (or the absence of good faith). See Elkins, 103 S.W.3d at 668-69. Accordingly, we cannot say that the court abused its discretion by imposing sanctions under section 10.004. Thus, we overrule Appellants' fourth issue.
Access To Courts/Right To Jury Trial
Appellants contend in their fifth issue that the dismissal denied them their federal constitutional right to petition the government for redress of grievances and their state and federal constitutional rights to a jury trial.
The First Amendment provides in pertinent part that "Congress shall make no law . . . abridging . . . the right of the people . . to petition the Government for a redress of grievances." U.S. Const. Amd. I.
With regard to Appellants' claim under the First Amendment right to petition, we note that "baseless litigation is not immunized by the First Amendment right to petition." McDonald v. Smith, 472 U.S. 479, 484, 105 S. Ct. 2787, 2791, 86 L. Ed. 2d 384 (1985) (quoting Bill Johnson's Rests., Inc. v. NLRB, 461 U.S. 731, 743, 103 S. Ct. 2161, 2170, 76 L. Ed. 2d 277 (1983)). Because the court did not abuse its discretion by concluding that Appellants' suit is groundless, the court's dismissal did not violate Appellant's First Amendment right to petition for redress of grievances. See id.
Appellants contend that the dismissal violated their Seventh Amendment right to trial by jury. However, the Seventh Amendment does not apply to suits brought in state court. See City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 719, 119 S. Ct. 1624, 1643, 143 L. Ed. 2d 882 (1999); Black v. Jackson, 82 S.W.3d 44, 55 (Tex.App.-Tyler 2002, no pet.).
The Seventh Amendment provides:
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
U.S. CONST. AMD. VII.
Appellants likewise contend that the dismissal violated their right to jury trial under the Texas Constitution. However, the right to trial by jury found in the Texas Constitution does not apply to frivolous lawsuits. See Black, 82 S.W.3d at 55; Schorp v. Baptist Meml. Health Sys., 5 S.W.3d 727, 737-38 (Tex.App.-San Antonio 1999, no pet.).
Appellants rely on the right to jury trial found in article I, § 15 of the Texas Constitution, which provides in pertinent part, "The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency." TEX. CONST. art. I, § 15.
Accordingly, we overrule Appellants' fifth issue.
Section 1983Appellants contend in their sixth issue that Mayfield has erroneously maintained that this suit must be brought under 42 U.S.C.A. § 1983, if at all. Appellants do not, however, identify any ruling of the trial court to this effect. Accordingly, their sixth issue presents nothing for review, and we overrule it.
Sanctions
Mayfield asks that we impose sanctions on Appellants under Rule of Appellate Procedure 45. Appellate damages are appropriate under Rule 45 when an appeal is objectively frivolous and injures the appellee. See Lookshin v. Feldman, 127 S.W.3d 100, 106 (Tex.App.-Houston [1st Dist.] 2003, pet. denied); Compass Exploration, Inc. v. B-E Drilling Co., 60 S.W.3d 273, 279 (Tex.App.-Waco 2001, no pet.); Mid-Continent Cas. Co. v. Safe Tire Disposal Corp., 2 S.W.3d 393, 397 (Tex.App.-San Antonio 1999, no pet.); see also David Lopez, Why Texas Courts are Defenseless Against Frivolous Appeals: A Historical Analysis with Proposals for Reform, 48 Baylor L. Rev. 51, 147-49 (1996).
Rule 45 provides:
If the court of appeals determines that an appeal is frivolous, it may — on motion of any party or on its own initiative, after notice and a reasonable opportunity for response — award each prevailing party just damages. In determining whether to award damages, the court must not consider any matter that does not appear in the record, briefs, or other papers filed in the court of appeals.
TEX. R. APP. P. 45.
An appeal is "objectively frivolous" if the appealing party "had no reasonable grounds to believe that the trial court's order . . . would be reversed" when the appeal was filed. See Lookshin, 127 S.W.3d at 107; accord Compass Exploration, 60 S.W.3d at 279; Mid-Continent Cas. Co., 2 S.W.3d at 397. We conclude Appellants had no such reasonable expectation of reversal when they filed this appeal. Accordingly, we will grant Mayfield's request for sanctions.
Mayfield's counsel attached an affidavit to Mayfield's brief in which counsel stated that Mayfield has incurred $3,203 in attorney's fees as a result of this appeal. We order Appellants to pay this sum to Mayfield as "just damages" for their frivolous appeal.
We affirm the judgment.