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Dinkins v. Calhoun

Court of Appeals of Texas, Second District, Fort Worth

May 17, 2018

MICHAEL BRET DINKINS AND SHANNA MARIE DINKINS APPELLANTS
v.
FOREST L. CALHOUN AND JENNIFER LOEW APPELLEES

          FROM COUNTY COURT AT LAW NO. 1 OF PARKER COUNTY TRIAL COURT NO. CIV-16-0178

          PANEL: SUDDERTH, C.J.; GABRIEL and KERR, JJ.

          MEMORANDUM OPINION[1]

          ELIZABETH KERR JUSTICE

         If the neighboring parties here had recalled their Frost, they might have worked on building some good fences.[2] 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 part.

         Background

         The 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 motion.

         For 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.

         A few 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.[3] 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.

         Two 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.

         The 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.

         Partial Reporter's Record

         In 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.

         Rule 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.[4] 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 judgment).

          To 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)).

         Here, 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.[5] 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).

         Denial of Sanctions Under Rule 13 and Chapter 10

         The 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 property[6]and (2) Calhoun and Loew knew that the elements of their malicious-prosecution claims did not exist when they filed them.[7]

         Standard of review

         We 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.

         Sanctions ...


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