Court of Appeals of Texas, Second District, Fort Worth
COUNTY COURT AT LAW NO. 1 OF PARKER COUNTY TRIAL COURT NO.
SUDDERTH, C.J.; GABRIEL and KERR, JJ.
ELIZABETH KERR JUSTICE
neighboring parties here had recalled their Frost, they might
have worked on building some good fences. Instead, it was
the lack of a fence that ignited a lawsuit between Appellants
Michael and Shanna Dinkins and their neighbors, Appellees
Forest L. Calhoun and Jennifer Loew. After a jury trial, the
Dinkinses moved for sanctions and to terminate or,
alternatively, to clarify the easement the jury found Loew
had through their property. The trial court denied the
motions and awarded Calhoun and Loew $1, 500 in
attorney's fees. The Dinkinses challenge these rulings on
appeal. We will affirm in part and reverse and remand in
Dinkinses' property abuts Calhoun's and Loew's
properties. Loew's property is landlocked by the
Dinkinses' and Calhoun's properties. The appendix to
this opinion shows the relative location of the parties'
properties at the time the Dinkinses filed their easement
several years, the properties were not separated by a fence,
and the Dinkinses' and Calhoun's livestock grazed on
the adjoining properties. In February 2016, Calhoun notified
the Dinkinses that he intended to immediately remove a
section of common fence separating his and the Dinkinses'
properties from State Highway 171. Because the removal would
allow the Dinkinses' livestock to escape onto the
highway, the Dinkinses sued Calhoun for injunctive relief to
prevent him from tearing down the fence, contending that
Calhoun failed to give them proper notice under the Texas
Agriculture Code. See Tex. Agric. Code Ann.
§§ 143.121, .122 (West 2004). The trial court
enjoined Calhoun from removing the fence. Then, the Dinkinses
sued Loew and sought injunctive relief against her and
Calhoun to keep them from asking the Parker County Sheriff to
impound the Dinkinses' livestock, claiming that Loew and
Calhoun were trying to circumvent the trial court's
injunction and the agriculture code's notice requirement.
months later, in May 2016, the Dinkinses built a fence
separating their property from Calhoun's and Loew's.
But this did not end the feud between the neighbors, and
Calhoun and Loew counterclaimed. Calhoun and Loew sued the
Dinkinses for conversion of real property, but the trial
court granted the Dinkinses summary judgment on this
nonexistent cause of action because "conversion applies
to personal property and not to realty." Calhoun and
Loew also sued the Dinkinses for malicious prosecution based
on their initiating this lawsuit, and Loew sued them for
declaratory and injunctive relief related to a claimed
easement through their land. A jury found against Calhoun and
Loew on their malicious-prosecution claims but found that
Loew had an easement from Highway 171 to her property through
the Dinkinses' property and that they should be enjoined
from interfering with that easement.
days after the trial, the Dinkinses moved for sanctions
against Calhoun, Loew, and their attorney, arguing that
Calhoun's and Loew's conversion and
malicious-prosecution claims were groundless and were brought
in bad faith and to harass, cause unnecessary delay, and
increase litigation costs. See Tex. Civ. Prac. &
Rem. Code Ann. §§ 9.001-.0014 ("Frivolous
Pleadings and Claims"), 10.001-.006 ("Sanctions for
Frivolous Pleadings and Motions") (West 2017);
Tex.R.Civ.P. 13 ("Effect of Signing of Pleadings,
Motions and Other Papers; Sanctions"). The Dinkinses
also filed a motion to terminate Loew's implied easement
or, in the alternative, to clarify it. At the hearing, the
Dinkinses offered no evidence supporting their motions. The
trial court signed an order denying both motions and awarding
Calhoun and Loew $1, 500 in attorney's fees. This order
became appealable when the trial court signed a final
judgment over a month later.
Dinkinses raise nine issues on appeal. In their first six
issues, they argue that the trial court abused its discretion
by denying their sanctions motion. In their remaining issues,
they argue that the trial court erred by denying their
easement motion, by awarding Loew and Calhoun attorney's
fees, and by failing to file findings of fact and conclusions
of law. But before we address the Dinkinses' issues, we
must address the state of the record that faces us.
their notice of appeal, the Dinkinses stated that they are
appealing (1) the denial of their sanctions motion, (2) the
denial of their easement motion, and (3) the $1, 500
attorney's-fees award. Consequently, the only portion of
the reporter's record requested by the Dinkinses and
filed by the court reporter is the post-trial hearing on the
sanctions and easement motions.
34.6(c)(1) allows an appellant to reduce appellate expenses
by abridging the reporter's record, thus limiting the
appellate court's review to only those portions of the
record relevant to the issues raised on appeal. CMM Grain
Co., Inc. v. Ozgunduz, 991 S.W.2d 437, 439 (Tex.
App.-Fort Worth 1999, no pet.). "If an appellant
requests a partial reporter's record, the appellant must
include in the request a statement of the points or issues to
be presented on appeal and will then be limited to those
points or issues." Tex.R.App.P. 34.6(c)(1). If an
appellant complies with rule 34.6(c)(1) by including with the
request for a partial reporter's record a statement of
points or issues to be presented on appeal, the reviewing
court must "presume that the partial reporter's
record designated by the parties constitutes the entire
record for purposes of reviewing the stated points."
Tex.R.App.P. 34.6(c)(4). "This presumption applies even
if the statement includes a point or issue complaining of the
legal or factual sufficiency of the evidence to support a
specific fact finding identified in that point or
issue." Id. But if an appellant fails to comply
with Rule 34.6(c), the contrary presumption arises: the
reviewing court must instead presume that the missing
portions of the record contain relevant evidence and that the
omitted evidence supports the trial court's judgment.
CMM Grain, 991 S.W.2d at 439; see Bennet v.
Cochran, 96 S.W.3d 227, 230 (Tex. 2002) (stating that,
absent a complete record on appeal, the appellate court must
presume that omitted items support the trial court's
activate the "irrelevant omissions" presumption, an
appellant must satisfy rule 34.6(c)'s requirements.
See CMM Grain, 991 S.W.2d at 439; but see
Bennet, 96 S.W.3d at 229-30 (allowing a "slight
relaxation" of rule 34.6, reasoning that "appellate
rules are designed to further the resolution of appeals on
the merits"). Generally, this means that both the
request for a partial reporter's record and the statement
of issues must be timely filed and appear in the appellate
record. CMM Grain, 991 S.W.2d at 439. Although the
rule specifies that the statement of issues must be included
in the request for a partial reporter's record,
see Tex. R. App. P. 34.6(c)(1), courts allow an
appellant to file the issue statement in a separate document.
See Furr's Supermarkets, Inc. v. Bethune, 53
S.W.3d 375, 377 (Tex. 2001) (stating that an issue statement
in a separate notice sufficed to invoke the presumption that
the partial reporter's record constituted the entire
record for purposes of reviewing the stated issue). The
points or issues should be described with some particularity;
a general notice of stated points or issues is insufficient
under rule 34.6(c)(1). See Garcia v. Sasson, 516
S.W.3d 585, 590 (Tex. App.-Houston [1st Dist.] 2017, no
pet.); Wheeler v. Greene, 194 S.W.3d 1, 5 (Tex.
App.-Tyler 2006, no pet.); see also Gardner v. Baker
Botts, L.L.P., 6 S.W.3d 295, 297 (Tex. App.-Houston [1st
Dist.] 1999, pet. denied) (construing former
appellate-procedure rule 53(d), predecessor to rule 34.6(c)).
the Dinkinses filed their notice of appeal and requested a
partial reporter's record more than a month before the
trial court signed its final judgment. See Tex.
R. App. P. 34.6(b)(1) ("At or before the time for
perfecting the appeal, the appellant must request in writing
that the official reporter prepare the reporter's
record."); see also Tex. R. App. P. 27.1(a)
(stating that "a prematurely filed notice of appeal is
effective and deemed filed on the day of, but after the event
that begins the period for perfecting the appeal"), 27.2
("The appellate court may treat actions taken before an
appealable order is signed as relating to an appeal of that
order and give them effect as if they had been taken after
the order was signed."). The Dinkinses did not list
their issues in their request for the reporter's record,
but as noted, their notice of appeal set out that they wanted
to appeal the denial of their sanctions and easement motions
and the $1, 500 attorney's-fees award. See,
e.g., Brawley v. Huddleston, No.
02-11-00358-CV, 2012 WL 6049013, at *2 (Tex. App.-Fort Worth
Dec. 6, 2012, no pet.) (mem. op) (concluding that statement
of issues in notice of appeal is sufficient to invoke rule
34.6(c)(4)'s presumption). The Dinkinses' appellate
issues are therefore limited to the trial court's rulings
on those motions and the attorney's-fees award, and we
will implement rule 34.6(c)(4)'s presumption that the
reporter's record as designated constitutes the entire
record for purposes of reviewing the Dinkinses' issues.
See Tex. R. App. P. 34.6(c)(4); Furr's
Supermarkets, 53 S.W.3d at 377 (concluding that notice
sent to appellee on the same day appellant requested the
partial reporter's record advising that "FSI desires
to appeal only Judge Ferguson's failure to award FSI its
taxable court costs, pursuant to Tex.R.Civ.P. 131 and Tex.
Civ. Prac. & Rem. Code § 31.007" was sufficient
to invoke partial-record presumption); Garcia, 516
S.W.3d at 591 (concluding that statement in notice of appeal
that appellant "desire[d] to appeal on deemed admissions
and other grounds" was sufficient to invoke the
partial-record presumption with respect to the trial
court's ruling regarding deemed admissions); Melton
v. Toomey, 350 S.W.3d 235, 237 (Tex. App.-San Antonio
2011, no pet.) (concluding that statement in notice of appeal
that appellant "was asserting his right to a limited
appeal of the trial court's judgment 'in the failure
and refusal of the Court to order Respondent . . . to pay
child support and health insurance'" was sufficient
to invoke partial-record presumption).
of Sanctions Under Rule 13 and Chapter 10
Dinkinses moved for sanctions under civil-procedure rule 13
and civil practice and remedies code chapter 10, both of
which give a trial court discretion to sanction an attorney,
a party, or both for filing pleadings that lack a reasonable
basis in fact or law. Low v. Henry, 221 S.W.3d 609,
614 (Tex. 2007); see Tex. Civ. Prac. & Rem. Code
Ann § 10.004(a); Tex.R.Civ.P. 13. In their first, third,
fourth, and sixth issues, the Dinkinses argue that the trial
court abused its discretion by denying their request for
sanctions under rule 13 and chapter 10. See Tex.
Civ. Prac. & Rem. Code Ann. §§ 10.001-.006;
Tex.R.Civ.P. 13. The Dinkinses assert that Calhoun's and
Loew's claims for conversion and malicious prosecution
were groundless and were brought in bad faith and to harass,
cause unnecessary delay, and increase litigation costs
because (1) it is well established that Texas does not
recognize a cause of action for conversion of real
propertyand (2) Calhoun and Loew knew that the
elements of their malicious-prosecution claims did not exist
when they filed them.
review a trial court's ruling on a sanctions motion for
an abuse of discretion. See Nath v. Tex. Children's
Hosp, 446 S.W.3d 355, 361 (Tex. 2014); Low, 221
S.W.3d at 614; WWW.URBAN.INC v. Drummond,
508 S.W.3d 657, 675 (Tex. App.-Houston [1st Dist.] 2016, no
pet.). A trial court abuses its discretion if it acts without
reference to any guiding rules or principles, that is, if the
act is arbitrary or unreasonable. Low, 221 S.W.3d at
614; Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex.
2004). Because courts presume that pleadings and other papers
are filed in good faith, the party moving for sanctions bears
the burden of overcoming this presumption. Nath, 446
S.W.3d at 361; Low, 221 S.W.3d at 614.