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Smale v. Williams

Court of Appeals of Texas, Sixth District, Texarkana

November 13, 2019

BRIAN A. SMALE, Appellant
v.
PAMELA ANN WILLIAMS, Appellee

          Date Submitted: November 12, 2019

          On Appeal from the County Court at Law Cass County, Texas Trial Court No. CCL18C571

          Before Morriss, C.J., Burgess and Stevens, JJ.

          OPINION

          SCOTT E. STEVENS JUSTICE.

         Brian A. Smale, a beneficiary of the John and Gwen Smale Living Trust, sued trustee, Pamela Ann Williams, for an accounting of trust assets and asserted claims for breach of fiduciary duty and fraud for failing to list and distribute all trust assets. These claims have been repeatedly raised in three other lawsuits filed by Smale in other courts. Smale v. Williams, No. 06-18-00055-CV, 2019 WL 490136 (Tex. App.-Texarkana Feb. 8, 2019, no pet.) (mem. op.). Because these claims were compromised and settled in a previous lawsuit, Williams moved to dismiss Smale's petition under Rule 91a of the Texas Rules of Civil Procedure on grounds of res judicata.[1] See id. at *1-2 (affirming another court's dismissal of Smale's claims under Rule 91a).

         The trial court found that another court had previously dismissed Smale's petition asserting the same claims raised here after granting a similar Rule 91a motion filed by Williams and concluded that Smale's claims were barred by res judicata.[2] As a result, the trial court granted Williams' motion, dismissed Smale's petition, and awarded Williams $5, 125.00 for attorney fees. Smale, appearing pro se, argues that the trial court erred in dismissing his lawsuit, awarding attorney fees against him, and denying his motion for new trial.

         We find that the trial court properly granted the Rule 91a dismissal, that Smale failed to preserve his attorney fee complaint, and that his complaints about the trial court's ruling on his motion for new trial are waived. As a result, we affirm the trial court's judgment.

         I. The Rule 91a Dismissal Was Proper

         "Dismissal is appropriate under Rule 91a 'if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought . . . [or] no reasonable person could believe the facts pleaded.'" City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) (per curiam) (alteration in original) (quoting Tex.R.Civ.P. 91a.1). Whether the dismissal standard is satisfied depends "solely on the pleading of the cause of action." Tex.R.Civ.P. 91a.6. "We review the merits of a Rule 91a motion de novo because the availability of a remedy under the facts alleged is a question of law and the rule's factual-plausibility standard is akin to a legal-sufficiency review." Sanchez, 494 S.W.3d at 724.

         Smale's first point of error claims the trial court "abused discretion, committed fraud upon the court, and perverted the course of justice when [it] signed" the dismissal order. As best we can discern, Smale argues that the court erred in dismissing his case because (1) it did not rule within forty-five days of the motion's filing; (2) while it cites Rule 91a, the order does not specify whether it dismissed the case because Smale's claims had "no basis in law or in fact, or both"; (3) the trial court failed to rule on Smale's motions to compel discovery responses before dismissing his case; (4) Smale was not able to present evidence in support of his claims because the dismissal hearing, at which he appeared, was moved from its original date to an earlier date; and (5) the trial court erred in determining Smale raised the same claims in front of other courts because (a) Williams "withheld the material fact that she is not the successor trustee of the John and Gwen Smale Living Trust . . . [(b)] she knew . . . . Plaintiff Smale had revoked his consent of the April 18, 2016[, ] Mediated Settlement Agreement," (c) Smale's petition contains a new demand for accounting, and (d) local counsel allegedly misled the trial court when he stated a prior court had entered a final judgment on these previously settled claims.

         As for Smale's first argument, Rule 91a.3(c) states that a motion to dismiss must be "granted or denied within 45 days after the motion is filed." Tex.R.Civ.P. 91a.3(c). However, "the 45-day period . . . is merely directory rather than mandatory." Koenig v. Blaylock, 497 S.W.3d 595, 599 (Tex. App.-Austin 2016, pet. denied). A plaintiff cannot show harm from the failure to follow the deadline, which is meant to "promote the orderly and prompt dismissal of baseless causes of action," because "a plaintiff would have more time to formulate a response to a dismissal argument, more time to amend a petition to add facts or adjust legal theories, and more time to consider whether to non-suit [a] case." Id. We resolve Smale's first argument against him.

         Next, "[t]he Rules of Appellate Procedure require that the appellant's brief 'contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.'" In re D.V., No. 06-16-00065-CV, 2017 WL 1018606, at *7 (Tex. App.-Texarkana Mar. 16, 2017, pets. denied) (mem. op.) (quoting Tex.R.App.P. 38.1(i)). Smale cites no authority showing that the trial court was required to specify in its order whether the Rule 91a dismissal was granted because Smale's petition had no basis in law or in fact, or both. Rule 91a does not require such specification in its order. Smale also fails to cite relevant authority showing that the trial court was required to rule on his motions to compel discovery before determining whether his claims were barred by res judicata.[3] We resolve Smale's second and third complaints against him.

         In his fourth complaint, Smale argues that he was not able to present evidence concerning the merits of his case at the dismissal hearing. Smale did not raise this issue below. Moreover, "[e]xcept as required by 91a.7, the court may not consider evidence in ruling on the motion and must decide the motion based solely on the pleading of the cause of action, together with any pleading exhibits permitted by Rule 59." Tex.R.Civ.P. 91a.6. We resolve Smale's fourth complaint against him.

         We now turn to Smale's remaining complaint, arguing that the trial court erred in determining Smale raised the same claims in front of other courts. "In conducting our review, we must construe the pleadings liberally in favor of the plaintiff, look to the pleader's intent, and accept as true the factual allegations in the pleadings to determine if the cause of action has a basis in law or fact." Koenig, 497 S.W.3d at 599. Here, Smale's petition demanded an accounting from Williams and asserted breach of fiduciary duty and fraud for her failure to include two abbey crypts located at a Dallas-area cemetery in the inventory of trust assets filed with the Dallas Court. Smale's petition specifically stated that he had previously demanded an ...


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