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Gilder v. Gilder

Court of Appeals of Texas, Third District, Austin

June 28, 2018

Derek Robert Van Gilder, Appellant
v.
Donna Jean Van Gilder, Appellee

          FROM THE DISTRICT COURT OF BASTROP COUNTY, 423RD JUDICIAL DISTRICT NO. 423-3263, HONORABLE JAMES D. SQUIER, JUDGE PRESIDING.

          Before Chief Justice Rose, Justices Goodwin and Field.

          MEMORANDUM OPINION [1]

          MELISSA GOODWIN, JUSTICE.

         Derek Robert Van Gilder appeals from the trial court's order awarding Donna Jean Van Gilder, a/k/a Donna Thomson, $500 in damages and $4, 000 in attorney's fees. Donna filed a motion to enforce the parties' mediated settlement agreement in their reopened divorce proceeding.[2] For the reasons that follow, we affirm the trial court's order in part and reverse and render in part.

         FACTUAL AND PROCEDURAL BACKGROUND

         Derek and Donna were divorced in 2014. They entered into a mediated settlement agreement (MSA), which included a confidentiality agreement, and the nonconfidential portion was filed in the trial court. See Tex. Fam. Code § 6.602(b) (providing conditions under which MSA is binding), (c) (providing that MSA that meets conditions entitles party to judgment on MSA notwithstanding any other rule of law). The MSA provided that "upon a finding of breach of the confidentiality agreement by a finder of fact, such breach shall result in a liquidated damages sanction in the amount of $25, 000.00 payable to the benefit of the other party, together with all attorney's fees and costs to prosecute enforcement of the agreement." The trial court approved the MSA and signed a final decree of divorce. Soon after entry of the decree, Derek filed a motion to reopen the case and an application for a temporary restraining order, temporary injunction, and permanent injunction. The MSA awarded the marital residence to Derek as his separate property but also provided that Donna was allowed to reside there for a certain time. Derek sought to remove Donna from the marital residence based on alleged violations of the MSA by Donna concerning her use of the home. The parties agreed to an order that placed restrictions on Donna's use of the marital residence and provided for certain other agreements concerning the property. The order also required the parties to adhere to the terms of the divorce decree and provided that if a finder of fact determines that a party has violated the terms of the decree or the MSA, that party shall pay the other party $25, 000 and any attorney's fees and costs.

         Thereafter, both parties filed a series of motions to enforce the MSA. In her "Third Amended Motion for Enforcement and Request for Restraining Order," Donna alleged that Derek had violated certain provisions of the MSA by "stalking" and "harassing" her. Specifically, she alleged that in returning personal items to her, Derek had included a video game entitled "Whose [sic] the Pervert Now" and a photograph taken by a security camera that Derek had placed in the backyard of the marital residence. The photograph was of an unclothed man in the yard with Donna. She also alleged that Derek had returned a photograph of her parents to her by placing it face down on her car windshield and that he had made derogatory comments about her to various individuals. Donna contended that Derek's actions violated the confidentiality provision of the MSA and its requirement that the parties surrender all photographs that disparage the other party. She sought to have the original photograph of the unclothed man released to the court, the security camera tape erased, and Derek restrained from coming within 200 feet of Donna and ordered to pay a sanction in the amount of $25, 000 for violation of the MSA, along with Donna's attorney's fees and costs. Derek filed responses to Donna's motions for enforcement and sought sanctions under Rule 13 for Donna's filing of groundless pleadings. See Tex. R. Civ. P. 13 (providing for sanctions against party who files pleadings that are (1) groundless and (2) brought in bad faith or for purpose of harassment).

         A hearing was held on Donna's third amended motion for enforcement on August 25, 2015. Donna presented her evidence and rested. After Derek presented the testimony of one witness, the trial court recessed the hearing. Donna then requested that she be allowed to prove up her attorney's fees, and the trial court responded that she could do so when the hearing resumed. On October 28, 2015, Donna filed her "Fourth Amended Motion for Enforcement and Request for Attorney's Fees," in which she asserted only two new claims for amounts owed under the MSA that Derek had allegedly failed to pay for the prior two months. When the recessed hearing resumed on November 3, 2015, Derek did not object to the late filing of Donna's fourth amended motion for enforcement but contended that Donna had abandoned her claim for violation of the MSA asserted in her third amended motion by omitting it in the fourth amended motion. Derek also argued that at the prior hearing, Donna had rested without putting on evidence of attorney's fees and should not be allowed to do so at the resumed hearing. The trial court decided to proceed with the hearing on the claim asserted in Donna's third amended motion for enforcement, Derek completed his presentation of evidence, and the trial court allowed Donna to put on evidence of her attorney's fees.

         At the conclusion of the hearing, the trial court awarded Donna $500 in actual damages and $4, 000 in attorney's fees for "several instances of unwanted attention rising to the level of harassment." The trial court expressly declined to rule on whether Derek had violated the terms of the MSA but denied all relief not expressly granted and awarded Derek $2, 500 as sanctions against Donna for filing frivolous pleadings.[3] These rulings were committed to a written order signed June 20, 2016, in which the trial court clarified that it had granted leave for Donna to file her fourth amended motion for enforcement and had found that by filing it, Donna had not abandoned the relief requested in her third amended motion for enforcement. Derek requested findings of fact and conclusions of law and filed a notice of past due findings, but none were ever entered. This appeal followed.

         DISCUSSION

         In his first issue, Derek argues that Donna abandoned her claim for violation of the MSA asserted in her third amended motion when she filed her fourth amended motion between the two hearings and did not include that claim. At the resumed hearing, Donna's attorney explained to the trial court that her fourth amended motion was "a complete new cause of action with new issues that are before the court." The trial court noted that the fourth amended motion was "just on unpaid payments" and continued to address the claim asserted in Donna's third amended motion, effectively treating the claims contained in the fourth amended motion as supplemental claims. We will consider whether the trial court abused its discretion in its treatment of Donna's fourth amended motion. See In re Ameri-Fab, LLC, No. 05-17-01458-CV, 2018 Tex.App. LEXIS 1061, at *10 (Tex. App.-Dallas Feb. 7, 2018, no pet.) (applying abuse of discretion standard to trial court's treating pleading as plea to jurisdiction rather than plea in abatement).

         Based on the content of the fourth amended motion, rather than on its title, we conclude that the trial court did not abuse its discretion in treating the fourth amended motion as a supplemental motion and in completing the hearing on the claim for violation of the MSA contained in Donna's third amended motion. See Tex. R. Civ. P. 71 (Misnomer of Pleading); In re J.Z.P., 484 S.W.3d 924, 925 (Tex. 2016) (per curiam) (stating that when party has mistakenly designated pleading, if justice requires, court shall treat it as if it had been properly designated and acknowledge substance of relief sought despite formal styling of pleading and holding that motion not captioned as one under Rule 306a nonetheless should be treated as one extending post-trial deadlines); Texas Comm'n on Human Rights v. Morrison, 381 S.W.3d 533, 536-37 (Tex. 2012) (observing that Texas Supreme Court has long favored common sense application of rules over technical approach that promotes form over substance); Powell v. Stover, 165 S.W.3d 322, 324 n.1 (Tex. 2005) (orig. proceeding) (treating pleading styled as appeal as petition for writ of mandamus where relator challenged denial of mandamus relief and did not appeal from final order); Ameri-Fab, LLC, 2018 Tex.App. LEXIS 1061, at *10 (holding that trial court did not abuse discretion in treating "plea to the jurisdiction" as plea to jurisdiction rather than as plea in abatement). Accordingly, we overrule Derek's first issue.

         In his second issue, Derek argues that there was no evidence to support an award of damages to Donna for breach of the MSA, especially in light of the trial court's award of sanctions against Donna for filing frivolous pleadings, and therefore no basis for an award of attorney's fees.[4]In his third issue, Derek argues that the trial court erred in awarding actual damages and attorney's fees to Donna for "harassment" because Texas does not recognize a cause of action for harassment. We agree that the record does not support the trial court's award of damages and attorney's fees to Donna.

         In her third amended motion for enforcement, Donna alleged one claim-that Derek's conduct had violated the MSA. However, the trial court expressly declined to rule on Donna's claim that Derek violated the MSA and then denied all relief requested but not granted. Therefore, regardless of whether the evidence would support a determination that Derek violated the MSA, the trial court did not make such a determination. Rather, in denying all relief requested but not granted, the trial court implicitly denied Donna's claim for breach of the MSA, and Donna does not appeal the denial of that claim. In addition, the trial court sanctioned Donna for frivolous pleadings, and Donna does not appeal the sanction. Although the trial court's order does not state specifically which claim it determined to be "frivolous," the only claim Donna actually asserted was the claim that Derek violated the MSA, and it ...


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