Opinion
14-20-00557-CV
05-17-2022
ASHTON B. YOUBOTY AND JOHN C. OSBORNE, Appellants v. JOHN S. YOUBOTY, SR. AND MUSU JONES, Appellees
On Appeal from the 270th District Court Harris County, Texas Trial Court Cause No. 2019-74423
Justice Panel consists of Chief Justice Christopher and Justices Zimmerer and Wilson.
MEMORANDUM OPINION
Randy Wilson Judge
A plaintiff and his attorney assert that (1) the trial court erred in issuing two sanctions orders against them because the trial court did not conduct an evidentiary hearing and did not state the particulars of good cause justifying the sanctions; (2) the trial court lacked plenary power to issue the second sanctions order; and (3) the trial court failed to give them notice pursuant to Texas Rules of Civil Procedure 316 and 21a that the trial court had vacated the first sanctions order. We conclude that the trial court had plenary power to issue the second sanctions order, and that the appellants' challenge to the first sanctions order is moot because the trial court vacated this order. To the extent the appellants appeal the first sanctions order, we dismiss their appeal as moot. Because the appellants have not shown that the trial court erred in issuing the second sanctions order, we affirm.
I. Factual and Procedural Background
Appellant/plaintiff Ashton B. Youboty filed suit in the trial court against appellees/defendants John S. Youboty, Sr. and Musu Jones (collectively the "John Parties"). Though Ashton asserts that John is his step-father, John has stated in a probate court proceeding and indicated in his appellate briefing in this case that John is Ashton's father. To adjudicate this appeal, we need not determine the relationship between Ashton and John.
Because they share the same last name, we will refer to Ashton B. Youboty and John S. Youboty, Sr. by their respective first names.
Ashton alleged in his petition that he is "a record owner of an undivided l/8 interest in the real property made the basis of this suit situated in Harris County, Texas and located at 9911 Baronshire Round, Houston, TX 77070-1810" (the "Property"). Ashton asserted that John and Ashton's mother, Jeannet Youboty, purchased the Property during their marriage and that during their ownership of the Property, John and Jeannet resided in and maintained the house on the Property. Ashton asserted that after purchasing the Property, John and Jeannet divorced and that Jeannet later passed away.
According to Ashton, appellee/defendant Musu Jones sued Ashton seeking a protective order while Jones was living on the Property, and her request for a protective order was denied. Ashton asserted that in cause number 440580 in Harris County Probate Court No. 2, a proceeding to declare heirship ("Heirship Proceeding"), the probate court declared Ashton to be an heir of Jeannet's estate with an undivided one-quarter interest in the estate. Ashton alleged that John and Jeannet appropriated the Property in a manner sufficient to give notice of the appropriation by maintaining and fencing off the Property as well as by residing at the property. For this reason, Ashton contended that John and Jeannet "fully own title to the [Property]." Ashton asked the trial court to determine that he holds an undivided one-eighth ownership interest in the Property. Ashton asserted claims against the John Parties for (1) trespass to try title, (2) suit to quiet title, (3) declaratory relief under the Texas Declaratory Judgments Act, and (4) a request for a writ of partition for the sale of the Property, with the proceeds to be divided among the owners of the Property.
The John Parties answered and asserted various affirmative defenses. The John Parties filed a "Motion to Dismiss, Motion to Strike, and Motion for Sanctions" ("Original Motion") in which they moved to dismiss Ashton's claims against them under Texas Rule of Civil Procedure 91a on the grounds that they had no basis in law or fact. The John Parties asserted that (1) Ashton had sought to establish his ownership interest in the Property in the Heirship Proceeding based on an alleged informal marriage between John and Jeannet; (2) the probate court ruled against him, and (3) the probate court's judgment had become final. Thus, the John Parties argued that Ashton's assertion of an informal marriage between John and Jeannet is barred by res judicata and collateral estoppel and that Ashton's claim of an ownership interest in the Property through Jeannet had no basis in law. The John Parties also argued that Ashton filed this suit 15 years after the purchase of the Property in 2004 and 13 years after Jeannet died in 2006, and thus the statute of limitations barred Ashton's claims. In their motion, the John Parties also asserted that this lawsuit is frivolous and sought sanctions against Ashton and his attorney, appellant John C. Osborne (collectively the "Ashton Parties") under Texas Rule of Civil Procedure 13 ("Rule 13") and Chapter 10 of the Texas Civil Practice and Remedies Code ("Chapter 10").
Before the hearing date set for the John Parties' motion, Ashton filed a notice of non-suit, in which he non-suited without prejudice all of his claims against the John Parties. On June 9, 2020, the trial court signed an order dismissing without prejudice all of Ashton's claims against the John Parties. Three days later the John Parties filed "Defendants' Amended Motion for Sanctions and Attorney's Fees" ("Amended Motion") in which they asserted that (1) Ashton's claim to a one-eighth ownership interest in the Property is based on an alleged informal marriage between John and Jeannet when John acquired title to the Property in 2004; (2) in his original and amended petitions Ashton attempted to avoid the effect of a final ruling in the Heirship Proceeding that no informal marriage existed between John and Jeannet; (3) Ashton's claims were "undeniably barred by limitations"; (4) Ashton's claims were frivolous, groundless, and made in bad faith; (5) the trial court should sanction the Ashton Parties by ordering them to pay the John Parties the reasonable attorney's fees they incurred due to the filing of this frivolous lawsuit. The John Parties' attorney submitted various documents including (1) an affidavit in which she testified that $12,862.50 was a reasonable attorney's fee; (2) invoices showing that John had paid the John Parties' attorney $10,287.20 in attorney's fees pertaining to this lawsuit. The John Parties sought sanctions pursuant to Rule 13 and Chapter 10.
On June 16, 2020, the trial court held an oral hearing on the Amended Motion. On July 9, 2020, the trial court signed an order in which the court granted the Amended Motion and ordered the Ashton Parties, jointly and severally, to pay attorney's fees in the amount of $12,862.50 to John through his attorney ("July 9 Order"). The signed order contained a blank space in which the date by which this payment must be made was supposed to be added, but no date was added. Four days later, the trial court signed an order in which the trial court vacated the July 9 Order and stated that a new order would replace the July 9 Order. On July 14, the John Parties filed a supplement to the Amended Motion in which they asserted that John had recently made a final payment to his attorney of the attorney's fees in this case, thus allegedly making the total amount of attorney's fees paid by John $12,862.50. Forty minutes later, the trial court signed an order in which the court granted the Amended Motion and ordered the Ashton Parties, jointly and severally, to pay attorney's fees in the amount of $10,762.50 to John through his attorney by 5:00 p.m. on August 14, 2020 ("July 14 Order").
The Ashton Parties did not file any motion challenging the July 14 Order; instead they filed a notice of appeal within thirty days of July 14, 2020.
II. Issues and Analysis
A. Is the July 14 Order void because the trial court signed the order after its plenary power expired?
In their third issue, the Ashton Parties ask whether the trial court abused its discretion by signing the July 14 Order after the trial court allegedly lost its plenary power. Under this issue, the Ashton Parties argue that the trial court lost its plenary power on July 9, 2020 and that therefore the July 14 Order is void. The Ashton Parties assert that the trial court's plenary power expired on July 9, 2020, thirty days after the trial court signed the Order of Non-Suit Without Prejudice ("Non-Suit Order") because no party filed a motion extending the plenary power of the trial court. Thus, the Ashton Parties implicitly argue that the trial court's Non-Suit Order was a final and appealable judgment that started the timetable for the expiration of the trial court's plenary power. See Tex. R. Civ. P. 329b; Crotts v. Cole, 480 S.W.3d 99, 103 (Tex. App.-Houston [14th Dist] 2015, no pet.); In re Fischer, No. 14-11-0482-CV, 2011 WL 2899138, at *2 (Tex. App.-Houston [14th Dist] Jul. 21, 2011, orig. proceeding [mand. denied]).
When the trial court signed the Non-Suit Order, the John Parties had a pending motion for sanctions under Rule 13 and Chapter 10. Therefore, the trial court's Non-Suit Order did not dispose of the sanctions motion unless the trial court disposed of the motion by specific language in the Non-Suit Order. See Tex. R. Civ. P. 162 (stating that "a dismissal under this rule shall have no effect on any motion for sanctions, attorney's fees or other costs, pending at the time of dismissal"); Unifund CCR Partners v. Villa, 299 S.W.3d 92, 96 (Tex. 2009). In the context of this case, for the trial court to have rendered a final and appealable judgment, the trial court must have actually disposed of all claims and parties in the case or stated with unmistakable clarity that the court was rendering a final judgment. See id. at 96-97; Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192-93, 200 (Tex. 2001). The trial court did not render a final and appealable judgment before signing the Non-Suit Order. In the Non-Suit Order, the only action that the trial court took was to dismiss without prejudice all of Ashton's claims against the John Parties based on Ashton's Notice of Non-Suit. The trial court did not rule on the John Parties' pending motion for sanctions.
In the Non-Suit Order, the trial court did not dispose of all claims and parties in the case or state with unmistakable clarity that the court was rendering a final judgment. See Lehmann, 39 S.W.3d at 192-93, 200. Because the Non-Suit Order was not a final and appealable judgment, this order did not start the timetable for the expiration of the trial court's plenary power. See Unifund CCR Partners, 299 S.W.3d at 96-97; Lehmann, 39 S.W.3d at 192-93, 200; Crotts, 480 S.W.3d at 103; In re Fischer, 2011 WL 2899138, at *2. The John Parties' motion for sanctions remained pending after the trial court signed the Non-Suit Order, and the John Parties were free to amend their motion, as they did on June 12, 2020. See Walter v. Teller, No. 02-12-00028-CV, 2013 WL 5966351, at *2 (Tex. App.-Fort Worth Nov. 7, 2013, no pet.) (mem. op.). The trial court did not actually dispose of all claims and parties in the case until the July 9 Order. See Unifund CCR Partners, 299 S.W.3d at 96-97; Lehmann, 39 S.W.3d at 192-93, 200; Walter, 2013 WL 5966351, at *2.
When the trial court vacated the July 9 Order and signed the July 14 Order, the trial court still had plenary power to grant a new trial or to vacate, modify, correct, or reform its judgment. See Tex. R. Civ. P. 329b(d); Unifund CCR Partners, 299 S.W.3d at 96-97; Lehmann, 39 S.W.3d at 192-93, 200; Crotts, 480 S.W.3d at 103. Thus, the trial court had plenary power to sign the July 14 Order, which created a final and appealable judgment, and the July 14 Order is not void. Accordingly, we overrule the third issue.
B. Is the first issue moot?
Under their first issue, the Ashton Parties argue that the trial court erred in rendering the July 9 Order. As discussed above, the trial court had plenary power when it vacated the July 9 Order. Because the July 9 Order has been vacated, the first issue is moot, and we dismiss this issue. See Deep Water Slender Wells, Ltd. v. Shell Int'l Explor. & Prod., Inc., 234 S.W.3d 679, 696 (Tex. App.-Houston [14th Dist.] 2007, pet. denied). To the extent the Ashton Parties appeal the July 9 Order, we dismiss their appeal as moot. See id.
C. Have the Ashton Parties preserved error as to their fourth issue?
In and under their fourth issue, the Ashton Parties assert the following:
• The trial court erred in failing to give them notice pursuant to Texas Rules of Civil Procedure 316 and 21a that the trial court had vacated the July 9 Order and signed the July 14 Order.
• The John Parties did not serve "a notice of hearing and intended action" on a motion for judgment nunc pro tunc.
• The John Parties "mis-identified" the document they filed on July 14, 2020 because they did not identify it as a motion for judgment nunc pro tunc or use a description that would apprise the Ashton Parties that the purpose of the supplement was to correct or modify the July 9 Order.
• The John Parties failed to comply with Texas Rule of Civil Procedure 316.
• The trial court abused its discretion by rendering the July 14 Order "with notice that the [document the John Parties filed on July 14, 2020] was identified in a manner that would mislead the [Ashton Parties] as to its intended purpose."Though the Ashton Parties were required to preserve error on each of these complaints by raising it in the trial court and obtaining an adverse ruling, they did not do so, thus waiving each complaint. See Houston Gateway Academy, Inc. v. IRRH, LLC, No. 14-19-00171-CV, 2020 WL 4118301, at *2 (Tex. App.-Houston [14th Dist] Jul. 21, 2020, no pet.) (mem. op.); Williams v. Bayview-Realty Assoc, 420 S.W.3d 358, 364-65 (Tex. App.-Houston [14th Dist.] 2014, no pet.).
In any event, under its plain text the substance of the John Parties' supplement to the Amended Motion is not a motion for judgment nunc pro tunc; instead it is a supplement to the Amended Motion to submit evidence showing that John had paid an additional $2,402.20 in attorney's fees, thus allegedly making the total amount of attorney's fees paid by John $12,862.50. The document the John Parties filed on July 14, 2020 was not a motion for judgment nunc pro tunc and its plain text does not reflect an intent by the John Parties to correct or modify the July 9 Order. Thus, the John Parties did not "mis-identify" the document they filed on July 14, 2020. The trial court's July 14 Order was not a judgment nunc pro tunc. Thus, Rule 316 did not apply. See Tex. R. Civ. P. 316; Moore Landrey, LLP v. Hirsch Westheimer, P.C., 126 S.W.3d 536, 542 (Tex. App.-Houston [1st Dist] 2003, no pet.). In addition, the law presumes that the Ashton Parties received proper notice, and they did not submit any evidence in the trial court in an attempt to prove that they did not receive any of the notice mentioned in the above points. See Houston Gateway Academy, Inc., 2020 WL 4118301, at *2; Jones v. Houston Police Department, No. 14-11-00756-CV, 2013 WL 1188991, at *1-2 (Tex. App.-Houston [14th Dist.] Feb. 12, 2013, no pet.) (mem. op.). The record does not reflect that the trial court had notice that the document the John Parties filed on July 14, 2020 "was identified in a manner that would mislead the [Ashton Parties] as to its intended purpose."
The Ashton Parties also assert that the John Parties filed the supplement to the Amended Motion without proper notice and without serving a notice of hearing. Though the Ashton Parties were required to preserve error on this complaint by raising it in the trial court and obtaining an adverse ruling, they did not do so, thus waiving the complaint. See Houston Gateway Academy, Inc., 2020 WL 4118301, at *2; Williams, 420 S.W.3d at 364-65. In any event, the law presumes that the Ashton Parties received proper notice, and they did not submit any evidence in the trial court in an attempt to prove that they did not receive proper notice of the supplement to the Amended Motion or any required notice of hearing. See Houston Gateway Academy, Inc., 2020 WL 4118301, at *2; Jones, 2013 WL 1188991, at *1-2. In addition, the supplement to the Amended Motion was filed after the trial court had vacated the July 9 Order. Under the plain text of this supplement, the John Parties did not ask the trial court to vacate, correct, or modify the July 9 Order, and the John Parties did not ask for any relief that they had not requested in the Amended Motion. Instead, the John Parties submitted additional proof to support an award of $12,862.50 based on the Amended Motion. In its July 14 Order the trial court specified a payment date that was missing in the July 9 Order and decreased the amount awarded from $12,862.50 to $10,762.50. Thus, the record reflects that the trial court signed the July 14 Order on its own motion, not in response to the supplement to the Amended Motion. Because the trial court had plenary power during this time period, it had the power to vacate the July 9 Order and issue the July 14 Order. See Tex. R. Civ. P. 329b(d); Unifund CCR Partners, 299 S.W.3d at 96-97; Crotts, 480 S.W.3d at 103.
We overrule the fourth issue.
D. Did the Ashton Parties preserve error on their complaint that the trial court erred by failing to comply with Rule 13 by stating in the order the particulars of good cause justifying the sanctions?
In the Ashton Parties' second issue, they ask whether the trial court abused its discretion by rendering the July 14 Order because the trial court failed to state in the order the particulars of good cause justifying the sanctions, as required by Rule 13. When imposing Rule 13 sanctions, the trial court is required to make particularized findings of good cause justifying the sanctions. See Appleton v. Appleton, 76 S.W.3d 78, 87 (Tex. App.-Houston [14th Dist] 2002, no pet.). Nonetheless, a complaint that the trial court failed to make these findings must be raised in the trial court by a timely request, objection, or motion, such as a motion to modify the order or a motion for new trial. See id.; Alexander v. Alexander, 956 SW.2d 712, 713-15 (Tex. App.-Houston [14th Dist.] 1997, pet. denied). By failing to raise this complaint in the trial court, the Ashton Parties waived any error by the trial court in failing to make particularized findings of good cause justifying the sanctions. See Appleton, 76 S.W.3d at 87; Alexander, 956 SW.2d at 713-15.
The wording of the Ashton Parties' second issue is identical to the wording of the first issue, which addresses alleged error in the July 9 Order. We presume that the Ashton Parties did not mean to assert duplicate issues and that the second issue refers to the July 14 Order rather than the July 9 Order.
E. Did the trial court err by failing to comply with Rule 13 by conducting an evidentiary hearing?
Under the Ashton Parties' second issue, they assert that the trial court abused its discretion by failing to conduct an evidentiary hearing as required by Rule 13. The Ashton Parties correctly state that the John Parties did not call any witnesses to testify at the oral hearing on the Amended Motion, that no attorney or witness testified at the hearing, and that the John Parties did not formally offer any documents into evidence at the hearing. Based on these premises, the Ashton parties assert that the trial court did not conduct an evidentiary hearing and the trial court had no evidence before it on which to find that Rule 13 sanctions should be assessed against the Ashton Parties.
We presume, without deciding, that Rule 13 required the trial court to hold an evidentiary hearing before assessing sanctions under that rule. See Nguyen v. Aventus Ins. Co., No. 14-19-00607-CV, 2021 WL 4472479, at *1 (Tex. App.- Houston [14th Dist] Sep. 30, 2021, no pet.) (indicating that although Rule 13 requires notice and a hearing, the rule does not require an evidentiary hearing) (mem. op.). The John Parties attached to the Amended Motion: (1) a document issued by the Republic of Liberia's Ministry of Internal Affairs purporting to pronounce the marriage between John and Jeannet dissolved as of 1990, (2) a marriage certificate stating that Michelle L. Theorgood and John were married in 1992 in Pennsylvania, (3) an October 1994 decree in which a Pennsylvania court orders that John and Jeannet are divorced, (4) a warranty deed in which the grantors convey the Property to John in November 2004, (5) a December 2012 decree in which a Pennsylvania court orders that John and Michelle L. Theorgood Youboty are divorced, (6) a July 2017 order in which the probate court orders the clerk to drop the Estate of Jeannet Youboty from the probate court's active docket, (7) an email filed with the County Clerk of Harris County in which the associate judge of the probate court in the Heirship Proceeding states that she finds no necessity for an administration of Jeannet's Estate and that she does not find John to be Jeannet's common law husband, (8) emails between Osborne and the John Parties' counsel in today's case, and (9) a printout from the website of the County Clerk of Harris County showing that the Heirship Proceeding is closed and that the probate court signed a Judgment Declaring Heirship in January 2016. Even though the trial court did not formally admit into evidence the exhibits attached to the Amended Motion, the Amended Motion that the trial court considered at the oral hearing contained this evidence. Therefore, the evidence attached to the Amended Motion was before the trial court, and the hearing on the Amended Motion qualifies as an evidentiary hearing. See Gene Duke Builders, Inc. v. Abilene Housing Auth., Inc., 138 S.W.3d 907, 908 (Tex. 2004); Addington v. Addington, No. 14-03-00340-CV, 2004 WL 1472127, at *3 (Tex. App.-Houston [14th Dist.] Jul. 1, 2004, no pet.) (mem. op.). Even presuming that Rule 13 required the trial court to hold an evidentiary hearing, the record reflects that the trial court conducted an evidentiary hearing and that the trial court considered a significant amount of documentary evidence before granting the Amended Motion. See Gene Duke Builders, Inc., 138 S.W.3d at 908; Addington, 2004 WL 1472127, at *3.
By granting the Amended Motion, the trial court impliedly granted the sanctions under both Rule 13 and Chapter 10. See Tooker v. Alief Indep. Sch. Dist., 522 S.W.3d 545, 551 (Tex. App.-Houston [14th Dist.] 2017, no pet.). Having found no merit in all of the Rule 13 arguments in the appellants' brief under the second issue, we need not and do not address the Ashton Parties' arguments under the second issue based on Chapter 10. We overrule the second issue.
F. Should this court impose sanctions on the Ashton Parties under Texas Rule of Appellate Procedure 45?
In their appellate brief, the John Parties asks this court to impose sanctions on the Ashton Parties under Texas Rule of Appellate Procedure 45 on the basis that the Ashton Parties filed a frivolous appeal. See Tex. R. App. P. 45. The John Parties ask this court to order the Ashton Parties to pay $5,000 in damages under Rule 45 based on the reasonable and necessary appellate attorney's fees incurred by the John Parties. See id. If, after considering everything in our file, we make an objective determination that an appeal is frivolous, we are authorized to award damages under Rule 45. See id.; Glassman v. Goodfriend, 347 S.W.3d 772, 782 (Tex. App.-Houston [14th Dist.] 2011, pet. denied) (en banc). But, Rule 45 does not mandate that this court award damages in every case in which an appeal is frivolous. Glassman, 347 S.W.3d at 782. The decision to award such damages falls within this court's discretion, which we exercise with prudence and caution after careful deliberation. Id. We conclude that damages under Rule 45 are not warranted in this case. Therefore, we deny the John Parties' request.
III. Conclusion
When the trial court vacated the July 9 Order and signed the July 14 Order the trial court still had plenary power to grant a new trial or to vacate, modify, correct, or reform its judgment. Thus, the trial court had plenary power to sign the July 14 Order, and this order is not void. Because the July 9 Order has been vacated, the first issue is moot, and we dismiss this issue. To the extent the Ashton Parties appeal the July 9 Order, we dismiss their appeal as moot. By failing to preserve error in the trial court the Ashton Parties have waived the arguments under their fourth issue and their argument under the second issue that the trial court erred in failing to make particularized findings of good cause justifying the sanctions. Even presuming that Rule 13 required the trial court to hold an evidentiary hearing, the record reflects that the trial court conducted an evidentiary hearing and that the trial court considered a significant amount of documentary evidence before granting the Amended Motion. Concluding that damages under Rule 45 are not warranted in this case, we deny the John Parties' request for Rule 45 damages. The John Parties filed a notice of appeal for a cross-appeal conditioned on the Ashton Parties obtaining all or part of the relief sought on appeal. Because this condition has not occurred, we need not and do not address the John Parties' cross-appeal. See Gulshan Enterprises, Inc. v. Zafar, Inc., 530 S.W.3d 298, 308 (Tex. App.-Houston [14th Dist.] 2017, no pet.).
We affirm the trial court's judgment.