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affirming sanctions when appellant failed to attack all grounds in order
Summary of this case from Powell v. Penhollow, Inc.Opinion
No. 05-07-01148-CV
Opinion Filed August 29, 2008.
On Appeal from the 416th Judicial District Court Collin County, Texas, Trial Court Cause No. 416-1991-07.
Before Justices MOSELEY, FRANCIS, and LANG.
MEMORANDUM OPINION
Appellant Charles E. Hodges, appearing pro se, asserts the trial court erred by denying his petition for bill of review and by awarding sanctions against him. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. RS. App. P. 47.2(a), 47.4. We affirm the trial court's order imposing sanctions and final dismissal of the entire case.
I. PROCEDURAL BACKGROUND
Hodges's bill of review sought to set aside an order signed by the 417th District Court of Collin County, in Cause No. 417-50801-05, terminating the parental rights of Charles E. Hodges to H.R.H., a minor child. The operative petition in that case named as petitioner the Collin County Unit of the Texas Department of Family and Protective Services ("TDFPS"). The termination order recited that the court had jurisdiction over all the parties; all parties entitled to citation were properly cited; and Hodges "appeared in person and through attorney of record . . . and announced ready." The termination order was signed on August 15, 2006.
This is Hodges's third attempt to set aside the termination order. In his first attempt, acting pro se, Hodges filed a document entitled "Notice of Appeal Out-Of-Time Pursuant to Texas Rule of Civil Procedure 329b(f) and Texas Family Code 161.211: Equitable Bill of Review." The notice, which bore the cause number of the termination proceeding, was filed in the trial court on January 29, 2007. Thereafter, on January 31, 2007, the trial court appointed an attorney to represent Hodges in the appeal. After this Court questioned its jurisdiction over the appeal, the attorney filed a letter brief indicating that this Court did not have jurisdiction. We held Hodges's notice of appeal was untimely and dismissed his appeal for lack of jurisdiction. See In re H.H., a Minor Child, No. 05-07-00139-CV, 2007 WL 730869 (Tex.App.-Dallas Mar. 12, 2007, no pet.) (mem. op.). We take judicial notice of the record filed in that appeal. Tex. R. Evid. 201(f).
While Hodges's appeal was pending before this Court, he made a second attempt to set aside the termination order. On February 27, 2007, and again acting pro se, he filed a "Request for Equitable Bill of Review" in the 417th District Court. That petition, which also bore the cause number of the termination proceeding, asked that it be "retroactively filed back to the January 29, 2007 filing." In his petition, Hodges requested that the court
take judicial notice of an attempt to timely file this request for bill of review on January 30, 2007 (actually placed in the mail January 26, 2007). It ended up in the appeals court, 5th Court of Appeals, as cause number 05-07-00139-CV. The trial court denied this petition on March 27, 2007. Hodges did not appeal; his brief states he was unaware that his petition had been denied.
This information is found in appellant's brief. See Tex. R. App. P. 38.1 (f) (in civil case, court will accept as true facts stated in brief unless another party contradicts them).
On June 8, 2007, Hodges made a third attempt to set aside the termination order; it is this attempt that is the subject of this appeal. On that date, Hodges filed another petition for equitable bill of review to set aside the August 2006 judgment. The petition named four persons as "opposing parties of interest," including "Collin County District Attorney Mary Scanlon." Hodges did not name TDFPS as a party.
The petition was filed in the 416th District Court and assigned cause number 416-1991-07; it was later transferred to the 417th District Court (which is the court that signed the termination order).
In his petition, Hodges alleged that his January 29, 2007 notice of appeal (i.e., his first attempt to set aside the termination order) was actually a petition for a bill of review, and that the district clerk mistakenly filed it as a notice of appeal in the termination proceeding. He requested that his June 8, 2007 petition be considered retroactively as filed on January 29 or, alternatively, that the time period for filing his bill of review be equitably tolled to make his June 8 petition timely. Hodges also requested the trial court take judicial notice of all pleadings filed in the termination proceeding "on and after January 29, 2007." Additionally, along with the bill of review, Hodges filed a motion to "transfer all prior pleadings that were mistakenly filed in the [termination proceeding] to this newly filed cause of action and be deemed timely filed retroactively back to January 29, 2007." Hodges's motion was accompanied with his "inmate's unsworn declaration."
By way of substantive grounds, Hodges alleged in his petition for bill of review that he had been denied effective assistance of counsel in connection with the termination proceeding. His ineffective assistance claim was based on two complaints. First, he asserted his trial counsel failed to respond to evidence admitted in the termination proceeding that he had been convicted of an offense listed as a grounds for termination in section 161.001 of the family code. Second, he asserted his trial counsel failed to file a notice of appeal from the judgment terminating his parental rights within thirty days of the date that order was signed, and failed to inform him that he had a right to such an appeal.
An answer to Hodges's petition was filed on behalf of "Collin County District Mary Scanlon." Scanlon's answer alleged a general denial, affirmative defenses, and also sought sanctions against Hodges. Scanlon's answer makes clear she was not answering on behalf of any other party.
On August 16, 2007, the trial court signed an order denying Hodges's petition and dismissing his claims against Scanlon with prejudice. The trial court's order stated a separate hearing would be held on the attorney's fees and sanctions issues. Thereafter, on September 24, 2007, the trial court signed a final judgment denying Hodges's petition for bill of review, dismissing his claims against all parties with prejudice, awarding attorney's fees to Scanlon, and sanctioning Hodges.
II. ISSUES ASSERTED
Hodges appeals, again acting pro se. In seven issues, he asserts the trial court erred:
(1) by dismissing his bill of review because it was filed untimely;
(2) by dismissing his bill of review on the grounds of res judicata and collateral estoppel;
(3) by failing "to recognize that use of [Tex. R. Civ. P. 329b(f)] equitable bill of review is an avenue to complain about ineffective assistance of counsel";
(4) by failing to find that his trial counsel in the underlying case was ineffective because she failed to inform appellant of his right to appeal and failed to present available meritorious defenses on his behalf;
(5) by finding that the "unclean hands" doctrine applied to his case;
(6) by denying his motion to appoint counsel; and
(7) by sanctioning him.
III. APPLICABLE LAW
An order terminating parental rights "is not subject to collateral or direct attack after the sixth month after the date the order was signed" if the person whose parental rights are being terminated was served with citation personally or by publication. Tex. Fam. Code Ann. § 161.211(a), (b) (Vernon 2002).
IV. ANALYSIS
A.
Denial of Bill of Review
Any collateral or direct attack on the August 15, 2006 order was precluded after February 28, 2007. See id. Thus, Hodges's petition is untimely. See id. Hodges requested below, and here, that his petition should be considered retroactively as filed on January 29 or, alternatively, that the time period for filing his bill of review be equitably tolled to make his June 8 petition timely. Although he cites cases in support of his argument that he has a "reasonable excuse" for not filing his petition until June 8, 2007, those cases relate to whether a party has a reasonable explanation for a need to extend the deadline for filing a notice of appeal under rule of appellate procedure 10.5(b)(1)(c), which permits the appeals court to extend the deadline for filing a notice of appeal if the appellant, among other things, reasonably explains the need for an extension. Tex. R. App. P. 10.5(b)(1)(c). See also Tex. R. App. P. 10.5(b)(2)(a). However, he cites no authority supporting his argument that he should be excused from complying with section 161.211, or even that we have authority to grant an extension under that statute.
Hodges claims his failure to file his bill of review timely was caused by ineffective assistance of counsel, and that he should be permitted to raise this issue in a bill of review proceeding. However, he made that same argument in his second attempt to set aside the termination order-his February 27, 2007 bill of review petition. The trial court denied that petition on March 27, 2007, and Hodges did not appeal. Although he claims he did not receive notice that the trial court had denied his February 27 petition, a bill of review complaining of the original termination order is not a proper avenue to complain about the March 27, 2007 order.
Hodges also claims his first attempt to set aside the termination order-the document entitled "Notice of Appeal Out-Of-Time Pursuant to Texas Rule of Civil Procedure 329b(f) and Texas Family Code 161.211: Equitable Bill of Review"-was not a notice of appeal. This argument was not made to this Court at that time; in fact, Hodges's appointed counsel took the position it was a notice of appeal. We agreed, held the notice was untimely, and dismissed the appeal. See In re H.H., 2007 WL 730869. Hodges did not appeal that judgment. Thus, he is bound by that prior determination.
We resolve Hodges's first issue against him. We need not address his second through fifth issues. See Tex. R. App. P. 47.1.
B.
Failure to Appoint Counsel
In his sixth issue, Hodges complains the trial court erred by denying his motion to appoint counsel. Hodges admits he is not entitled to appointed counsel in a bill of review proceeding. Rather, the subject of this issue is his argument that he was denied effective assistance of counsel after the termination order was entered, which prevented him from filing a timely notice of appeal from that order.
Assuming without deciding that Hodges can make such a complaint in this bill of review proceeding, he is still barred from relief because it was filed after the time period set forth in the family code section cited above. See Tex. Fam. Code Ann. § 161.211(a), (b). We resolve Hodges's sixth issue against him. C. Sanctions
In his seventh issue, Hodges complains the trial court erred by entering sanctions against him. Those sanctions include a judgment against him and in favor of Collin County for attorney's fees and expenses. The judgment also prohibits Holmes from initiating any lawsuits against the county; its officers, agents, servants, and employees; and others who were involved in the termination proceeding or his efforts to set aside the termination order, without first having such lawsuits reviewed and approved by the administrative judge of Collin County as a legitimate request for relief.
In its order, the trial court found a number of specific grounds for imposing sanctions, including that Hodges "has no good faith argument for the extension, modification or reversal of existing law or the establishment of new law, which would justify the filing of the instant Petition for Equitable Bill of Review. . . ." Hodges contests this finding on appeal, arguing his efforts to set aside the termination order constitute legitimate arguments for the extension of or changes to existing law. Specifically, he asserts that a parent whose parental rights have been terminated should be permitted to raise issues of post-judgment ineffective assistance of counsel in a bill of review proceeding if no appeal was filed for which an abatement procedure-allowing the parent to develop the record concerning his claim-was available. He asserts a bill of review is akin to a post-conviction habeas proceeding in criminal matters, and that he should be allowed to pursue his post-judgment ineffective assistance claim in such a proceeding. He asserts that bill of review proceeding should include an "abatement-remand" procedure to allow him to develop a record concerning his post-judgment ineffective assistance claim, similar to the procedure adopted and employed in Jack v. State, 42 S.W.3d 291 (Tex.App.-Houston [1st Dist.] 2001, no pet.) (order). See also Jack v. State, 64 S.W.3d 694 (Tex.App.-Houston [1st Dist.] 2002), pet. dism'd, 149 S.W.3d 119 (Tex.Crim.App. 2004).
Even if we concluded the trial court erred in finding that Hodges's petition did not set forth a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, there are ample grounds for entry of the sanctions order that Hodges has not attacked on appeal. The trial court also specifically found: (1) a number of Hodges's factual allegations were misrepresentations of the facts, groundless and made in bad faith, groundless and made for the improper purse of delay, lacked evidentiary support, and were made for purposes of harassment; (2) Hodges had filed this petition after the deadline for filing same; (3) Hodges had filed a previous petition for bill of review raising the same issues, which had been denied; and (4) counsel for Scanlon had written Hodges advising that his petition was frivolous, yet Hodges refused to voluntarily dismiss his case. Hodges does not challenge these findings. See Fox v. Wardy, 224 S.W.3d 300, 304 (Tex.App.-El Paso 2005, pet. denied) (if appellant fails to attack all independent grounds that fully support adverse ruling, appellate court must affirm). Thus, we resolve Hodges's seventh issue against him.
V. CONCLUSION
Having resolved against appellant all issues essential to the determination of this appeal, we affirm the trial court's order.