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Bellow v. McQuade

Court of Appeals of Texas, Ninth District, Beaumont

December 21, 2017

MICHAEL DAVID BELLOW JR., Appellant
v.
LEEANN MCQUADE, Appellee

          Submitted on October 10, 2017

         On Appeal from the 172nd District Court Jefferson County, Texas Trial Cause No. E-198, 048

          Before McKeithen, C.J., Kreger and Horton, JJ.

          MEMORANDUM OPINION

          CHARLES KREGER JUSTICE

         On February 5, 2016, the trial court signed an Order on Motion to Vacate Ex Parte Temporary Restraining Order, Motion to Dismiss for Lack of Jurisdiction and Motion for Sanctions, whereby the trial court dismissed an Ex Parte Temporary Restraining Order and sanctioned Appellant, Michael David Bellow Jr. in the amount of $3, 000.00, from which Bellow appeals. In two issues, Bellow complains of lack of notice of the hearing and sanctions imposed against him, and that the trial court abused its discretion by entering the order vacating the ex parte temporary restraining order and entering sanctions after he had effectively nonsuited the entire cause of action.

         Background

         On January 26, 2016, Appellant, Michael David Bellow Jr., acting pro se, filed a verified petition for an ex parte emergency temporary restraining order and temporary injunction seeking to enjoin Leeann McQuade, DDS and Children's Dentistry of Beaumont from performing a non-emergency, invasive dental procedure which required intravenous sedation by an anesthesiologist on Bellow's three year old son, M.D.B.[1] Bellow alleged the procedure was without his parental consent. Bellow alleged that he conveyed his unwillingness to consent to the dentist and was told that the procedure would proceed without his consent on the following day. The trial court signed an Ex Parte Temporary Restraining Order on that same day, setting a hearing for a temporary injunction for February 3, 2016.

         The following day, on January 27, 2016, C.H., the estranged wife and mother of the child, M.D.B., sought to intervene in the lawsuit and filed her Motion to Vacate Ex Parte Temporary Restraining Order, Motion to Dismiss for Lack of Jurisdiction and Motion for Sanctions, as well as a Motion to Show Cause. C.H. asserted that a family law court of Hardin County, wherein a suit for divorce and conservatorship of the child was pending, had exclusive jurisdiction of the subject matter and parties. Furthermore, C.H. alleged that Bellow personally served the signed Ex Parte Temporary Restraining Order upon the dentist instead of having proper service by an authorized process server. Finally, C.H. alleged that Bellow intentionally misled the trial court regarding the underlying facts surrounding the dental procedure, and C.H. represented to the trial court that Bellow had been sanctioned on more than one occasion in the divorce action and requested the court to enter sanctions against Bellow in the underlying suit. The trial court signed an Order to Appear and Show Cause ordering Bellow to appear before the court on the following day, January 28, 2016, at 2:30 p.m.

         On January 28, 2016, prior to the show cause hearing, Bellow filed his Motion to Withdraw Petition for Temporary Injunction, Motion to Strike Hearing, and Motion to Rescind Emergency Temporary Restraining Order. Additionally, Bellow simultaneously filed pleadings, among other things, objecting to the lack of notice for the show cause hearing and request for sanctions.

         At the show cause hearing, Bellow again voiced his objection to the hearing or consideration by the court of the intervention or motion for sanctions for lack of notice. He represented to the court that he had only been served with the pleadings and Show Cause Order on the evening before the hearing, and he had inadequate time to prepare and respond to the allegations being lodged against him.

         At the conclusion of the hearing, the trial court granted the motion to vacate the ex parte temporary restraining order and the motion to dismiss for lack of jurisdiction. Further, the court pronounced that it was assessing sanctions against Bellow in the amount of $3, 000.00 to "put a stop to what you're doing in terms of all these filings." On February 5, 2016, the trial court signed the Order on Motion to Vacate Ex Parte Temporary Restraining Order, Motion to Dismiss for Lack of Jurisdiction and Motion for Sanctions, from which this appeal follows.

         Issues

         Bellow complains that the trial court abused its discretion when it went forward with the hearing and signed the Order on Motion to Vacate Ex Parte Temporary Restraining Order, Motion to Dismiss for Lack of Jurisdiction and Motion for Sanctions after Bellow had filed pleadings withdrawing his pleadings and effectively nonsuiting the entire cause of action. "A plaintiff has an absolute right to nonsuit a claim before resting its case-in-chief[.]" CTL/Thompson Tex., LLC v. Starwood Homeowner's Ass'n, Inc., 390 S.W.3d 299, 300 (Tex. 2013). But a nonsuit "shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief[, ]" such as a motion for sanctions. Tex.R.Civ.P. 162. To hold otherwise would defeat the purpose of sanctions. CTL/Thompson Tex., 390 S.W.3d at 300. As C.H. had filed her intervention and motion for sanctions prior to Bellow filing the nonsuit, the motion for sanctions survives Bellow's nonsuit.

         Bellow also complains of the trial court issuing sanctions against him without sufficient prior notice. Bellow preserved this issue by filing pleadings before the hearing objecting to the lack of notice and objecting again at the hearing to the lack of notice.[2] While Bellow may have been referring to inadequate time procedurally to prepare for such ...


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