John Sutphin, Jr. v. Tom Arnold Drilling Contractor, Inc.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-99-00600-CV

John Sutphin, Jr., Appellant

Tom Arnold Drilling Contractor, Inc., Appellee

FROM THE COUNTY COURT AT LAW NO. 1 OF WILLIAMSON COUNTY

NO. 4079, HONORABLE KEVIN HENDERSON, JUDGE PRESIDING

Appellant John Sutphin, Jr. ("Sutphin"), the respondent below, seeks relief from the final judgment of the Williamson County Court at Law No. 1. In response to a motion by appellee Tom Arnold Drilling Contractor, Inc. ("Arnold") the Williamson County court issued an order instructing Sutphin to appear and show cause why he should not be held in contempt of court ("show cause order"). Sutphin made a special appearance through counsel, challenging the Williamson County court's jurisdiction on two grounds. First, Sutphin argued that because the Williamson County court's plenary jurisdiction in the underlying cause had expired, the court lacked jurisdiction to consider a contempt citation against him. Second, Sutphin maintained that the Williamson County court lacked personal jurisdiction over him because he was a resident of Colorado. The Williamson County court issued a final judgment denying Sutphin's special appearance. Sutphin appeals. We will affirm.

Background

In July 1997, Arnold, a Texas corporation domiciled in Round Rock, filed suit against Semco, Inc. ("Semco"), a non-resident Colorado corporation, in Williamson County Court at Law No. 1. Arnold alleged fraud, breach of contract, and Deceptive Trade Practices Act violations in Semco's sale of a water well utility truck to Arnold. Semco filed a special appearance sworn to by Sutphin, who is the president and sole shareholder of the company. Subsequently, Semco filed four affidavits, each executed by Sutphin, in support of the special appearance. Each recited that Sutphin had personal knowledge of the facts recited in the sworn affidavit. The pleadings and affidavits represented to the Williamson County court that Semco (1) did not engage in business in Texas; (2) had never engaged in business in Texas; (3) had never previously conducted sales in Texas; (4) had not committed any act in Texas; and (5) had not solicited business in Texas. In August 1998, the Williamson County court granted Semco's special appearance and dismissed Arnold's cause with prejudice. No subsequent motions were filed, and no appeal was taken from this underlying dismissal.

In December 1998, Arnold filed a federal diversity action in U.S. District Court in Denver under the Colorado deceptive trade practices statute. In the course of pre-trial discovery, Arnold gained access to the contents of a motor vehicle dealer complaint file maintained by the Colorado Department of Revenue. Documentation in the file indicated that Semco had engaged in systematic and continuous business dealings in Texas from 1996 through 1998. This documentation directly contradicted the representations Sutphin made under oath in Semco's special appearance pleadings and affidavits in Texas.

In June 1999, more than ten months after its Texas suit against Semco had been dismissed, Arnold filed a motion for an order to show cause why Sutphin should not be held in contempt of court ("Arnold's motion") in the Williamson County court. Arnold's motion was supported by the business records of several Texas businesses and alleged that the affidavits Sutphin made in support of Semco's special appearance were false and perjurious. Arnold requested that the Williamson County court order Sutphin to appear individually for contempt proceedings against him.⁽¹⁾

The Williamson County court signed the show cause order directing Sutphin to appear before the court in Georgetown, Texas. Sutphin responded by filing a special appearance supported by affidavits, maintaining that (1) the Williamson County court's plenary jurisdiction in the underlying cause had expired and that as a result, the court lacked jurisdiction to consider a contempt citation against him; and (2) because Sutphin was a resident of Colorado, the Williamson County court lacked personal jurisdiction over him. On September 17, 1999, the court signed the final judgment overruling Sutphin's special appearance. Sutphin filed a notice of appeal, which stayed further proceedings against him pending the outcome of this appeal. At Arnold's request, the Williamson County court made findings of fact and conclusions of law.

For the limited purpose of determining whether it had jurisdiction to investigate allegations of fraud and perjury, the Williamson County court considered the allegations in Arnold's motion as well as the business records filed with the motion. In its findings, the court stated that it had been influenced by the content of Sutphin's affidavits in granting Semco's special appearance. The court found that Sutphin signed and swore to the truth of the facts contained in the affidavits in his individual capacity and based on his personal knowledge. The court concluded that filing a false, sworn statement for the purpose of influencing a decision of the court constitutes a fraud upon the court. Finally, the Williamson County court determined that a foreign resident who swears under oath to the truth of pleadings and affidavits which the affiant knows, or has reason to know, will be filed and considered by a Texas court is answerable to that court if the pleadings or affidavits are thereafter shown to be false.

Discussion

A. The Show Cause Order

When the Williamson County court issued the show cause order, its plenary jurisdiction in Arnold's underlying suit against Semco had long since expired. The question remains whether the Williamson County court possessed the inherent power to investigate an alleged fraud on the court that, if proven, caused the court to relinquish rightful jurisdiction over Semco in the underlying suit.

1. Plenary Power

Sutphin argues that the Williamson County court lacked the authority to issue the show cause order compelling him to appear because it lacked jurisdiction to enter any orders in Arnold's suit against Semco. In support of this argument, Sutphin relies on rule 329b(d) of the Texas Rules of Civil Procedure and a line of cases that stand for the proposition that once a trial court's plenary jurisdiction over a cause of action has expired, it lacks the power to enter any further orders in the cause. See Tex R. Civ. P. 329b(d); Ex parte Olivares, 662 S.W.2d 594, 595 (Tex. 1983); State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995); First Alief Bank v. White, 682 S.W.2d 251, 252 (Tex. 1984). More specifically, Sutphin cites authority implying that once a trial court's plenary jurisdiction expires, the trial court even lacks the jurisdiction to impose sanctions for a party's pre-judgment conduct. See In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997); cert. denied sub nom. In re Hilliard, 525 U.S. 823 (1998). Sutphin urges that the fact that the allegations concern allegedly false affidavits, rather than discovery abuse, is of no consequence. Sutphin claims that if we were to hold otherwise, parties could circumvent the finality of any judgment, even after appeal, by merely alleging that the prevailing party had given false and misleading testimony prior to judgment.

Sutphin argues that rule 329b of the Texas Rules of Civil Procedure limits Texas trial courts to thirty days to take any action in a cause, or against parties and counsel, other than to set aside a void judgment. Rule 329b states in pertinent part:

The following rules shall be applicable to motions for new trial and motions to modify, correct, or reform judgments (other than motions to correct the record under Rule 316) in all district and county courts:

. . . .

(d) The trial court, regardless of whether an appeal has been perfected, has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment within thirty days after the judgment is signed.

Tex. R. Civ. P. 329b(d).

In deciding whether this rule precludes the Williamson County court's exercise of jurisdiction in this cause, we first consider what Sutphin cites as his strongest authorities in support of his argument, In re Bennett and Ex parte Olivares. In Bennett, the Texas Supreme Court considered whether a party's filing of nonsuit or the subsequent removal to federal court deprived a state trial court of jurisdiction to consider, sua sponte, whether sanctions should be imposed on attorneys for their pre-removal conduct. See Bennett, 960 S.W.2d at 36. After plaintiffs filed a nonsuit and defendants removed the cause to federal court, Judge Max Bennett ordered sanctions against plaintiffs' attorneys, who knowingly and intentionally violated local rules providing for random assignment of cases to the eight district courts in Nueces County.⁽²⁾ Judge Bennett sought and was granted mandamus relief by the Texas Supreme Court after the court of appeals directed him to sign the order of nonsuit and vacate the order for sanctions. Sutphin relies on the supreme court's statement that "[i]t is only after plenary jurisdiction has expired that a trial court may not sanction counsel for pre-judgment conduct." Id. at 38. Sutphin argues that the supreme court's mandate is clear: as a jurisdictional prerequisite, the trial court must possess plenary jurisdiction, or it lacks authority to take any action whatsoever against parties or counsel. Initially, this argument seems persuasive. The supreme court has certainly implied that the power to sanction pre-judgment conduct depends on whether plenary power has expired. See Scott & White Mem'l Hosp. v. Schexnider, 940 S.W.2d 594, 596 n.2 (Tex. 1996). However, Sutphin overlooks the holding of Bennett, which is "that neither the filing of a nonsuit nor the subsequent removal of a case to federal court deprived the state court of jurisdiction to consider, sua sponte, whether sanctions should be imposed on attorneys for pre-removal conduct when the sanctions are unrelated to the merits of the removed case." Bennett, 960 S.W.2d at 36. We find it significant that although the case had been removed to federal court, which deprived Judge Bennett of jurisdiction entirely, the supreme court held that Judge Bennett retained the power to sanction the attorneys involved in the scheme to select a specific Nueces County district court.

Sutphin also relies on Olivares, in which the issue was whether the trial court had jurisdiction to render a judgment thirteen months after it had dismissed the cause. The Texas Supreme Court found that dismissal of the cause had fixed the rights of the parties and could only be set aside by a written order rendered during the period of plenary jurisdiction. See Olivares, 662 S.W.2d at 595 (citing Tex. R. Civ. P. 329b). The subsequent judgment for the plaintiff and contempt order against the defendant were nullities See id.⁽³⁾

Sutphin correctly asserts that under rule 329b(d) and the authorities cited, the Williamson County court lacked jurisdiction to enter orders regarding the merits of Arnold's underlying suit against Semco. Any attempt by the Williamson County court to reverse the dismissal, try the cause, or render judgment would appear to be jurisdictionally barred by the cases upon which Sutphin relies. Sutphin reasons, therefore, that the expiration of plenary power over the merits of the underlying suit also bars the Williamson County court's exercise of jurisdiction over Sutphin regarding a possible contempt citation. Sutphin contends that because his statements were made in the context of the underlying suit, over which the Williamson County court no longer has jurisdiction, his affidavits are immune from examination by the Williamson County court.

2. Inherent Power

In response, appellee Arnold concedes that the Williamson County court lacked jurisdiction to enter any orders regarding the merits of the underlying suit against Semco after its plenary power had expired. However, Arnold contends that the expiration of plenary jurisdiction has no bearing on the court's authority to investigate an alleged fraud perpetrated on the court itself. Arnold maintains that the court's inherent power is the source of its authority to issue the show cause order compelling Sutphin to appear, rather than its plenary jurisdiction to modify its judgment in the underlying cause.

Arnold relies on section 21.001 of the Texas Government Code and cases defining and applying inherent power. See Tex. Gov't Code Ann. § 21.001(a), (b) (West Supp. 2000); Eichelberger v. Eichelberger, 582 S.W.2d 395, 398 (Tex. 1979); In re E.I. Dupont de Nemours & Co.--Benlate Litigation, 99 F.3d 363, 367-68 (11th Cir. 1996). More specifically, Arnold cites authority stating that courts possess the inherent power to punish for contempt. See Ex parte Pryor, 800 S.W.2d 511, 512 (Tex. 1990); Ex parte Gorena, 595 S.W.2d 841, 843 (Tex. 1979). Finally, Arnold maintains that the alleged perjury is such a threat to the dignity, independence, and integrity of the court that it warrants the exercise of inherent power for the limited purpose of investigating the allegation. Arnold argues that there is no danger of circumventing the finality of the judgment in the underlying suit because that judgment is not challenged in this proceeding.

The Texas Legislature has recognized and codified a court's inherent power in section 21.001 of the Texas Government Code. The statute states in pertinent part:

(a) A court has all powers necessary for the exercise of its jurisdiction and the enforcement of its lawful orders, including authority to issue the writs and orders necessary or proper in aid of its jurisdiction.

(b) A court shall require that proceedings be conducted with dignity and in an orderly and expeditious manner and control the proceedings so that justice is done.

Tex. Gov't Code Ann. § 21.001(a), (b). The Williamson County court specifically cited this section in its conclusions of law as authority to conduct an independent investigation into Arnold's allegations.

In Eichelberger, the Texas Supreme Court explained inherent judicial powers and stated:

The inherent judicial power of a court is not derived from legislative grant or specific constitutional provision, but from the very fact that the court has been created and charged by the constitution with certain duties and responsibilities. The inherent powers of a court are those which it may call upon to aid in the exercise of its jurisdiction, in the administration of justice, and in the preservation of its independence and integrity. . . . This power exists to enable our courts to effectively perform their judicial functions and to protect their dignity, independence and integrity.

Eichelberger, 582 S.W.2d at 398-99 (internal citations omitted).⁽⁴⁾ Arnold argues that to perform its duty to protect and safeguard the public and to preserve its own "dignity, independence and integrity," the Williamson County court must possess the inherent power to investigate an alleged fraud that caused the court to relinquish its jurisdiction. See id. at 399.

Although federal case law is not binding precedent on this Court in this case, Arnold cites as persuasive authority In re E.I. DuPont de Nemours & Co.--Benlate Litigation, 99 F.3d at 363.⁽⁵⁾ DuPont involved a toxic tort action in which Georgia plaintiffs settled with the defendants and voluntarily dismissed their claims with prejudice. More than a year and a half later, the plaintiffs petitioned the United States District Court in Georgia seeking sanctions against DuPont for its failure to produce certain documents in violation of discovery orders. The district court conducted a show cause hearing and issued a sanctions order, which DuPont appealed. The Eleventh Circuit addressed the question whether the district court lacked jurisdiction to conduct an independent hearing for sanctions based on alleged misconduct in the long-dismissed Georgia toxic tort litigation. The court stated that every district court has the power to investigate whether it has been the victim of fraud and to impose a contempt sanction, even after the action in which the contempt arose has been dismissed. See id. at 367-68 (citing Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991)). The Eleventh Circuit concluded that in 1995 the district court still possessed jurisdiction to investigate whether DuPont violated discovery orders in the 1993 litigation.⁽⁶⁾

Arnold argues that the Texas Legislature has granted state courts "all powers necessary for the exercise of [their] jurisdiction . . . including authority to issue the . . . orders necessary or proper in aid of [their] jurisdiction" and that this grant includes the inherent power to investigate allegations that fraud deprived the court of jurisdiction. Tex. Gov't Code Ann. § 21.001(a) (emphasis added). Arnold asserts that this is a case calling for the exercise of inherent power because it implicates a direct threat to the integrity of the court. Arnold argues that the special appearance is a unique proceeding in which the veracity of affidavits is of paramount importance and that therefore the Williamson County court must possess the authority to investigate allegations of fraud.

Analysis The question before us is a narrow one: Whether the Williamson County court has the authority to investigate the truthfulness of the pleadings and affidavits that it relied upon in deciding to grant a special appearance. There are no Texas cases that speak directly to this question.

We begin by noting that Sutphin's cases relying on rule 329b(d) of the Texas Rules of Civil Procedure are distinguishable. In each, the trial court had disposed of the original cause, fixing the rights and duties of the parties. See Ex parte Olivares, 662 S.W.2d at 595; First Alief Bank, 682 S.W.2d at 252; State ex rel. Latty, 907 S.W.2d at 485. The court later revisited the same case on the merits and attempted to reverse its earlier action by issuing a new judgment that altered the rights and duties of the parties.⁽⁷⁾ In each case, the appellate court cited rule 329b for the proposition that "the trial court . . . has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment within thirty days after the judgment is signed." Tex. R. Civ. P. 329b(d) (emphasis added).

In this case, the Williamson County court issued an order that granted Semco's special appearance and dismissed the underlying cause. That order became final, and the Williamson County court's plenary jurisdiction expired on September 7, 1998. Arnold has pursued its underlying claims against Semco in U.S. District Court in Denver. The federal district court, not the Williamson County court, will determine the rights and duties of the parties on the merits of Arnold's case against Semco. The Williamson County court has made no attempt to "vacate, modify, correct, or reform" its order of dismissal. See id. The show cause order does not change the effect of the initial dismissal or the rights and duties of Semco vis-à-vis Arnold in any way. Therefore, Sutphin's cases are not dispositive.

On the other hand, we are persuaded by Arnold's contention that the Williamson County court possesses the inherent power to investigate the veracity of affidavits that formed the basis for granting Semco's special appearance and request for dismissal of the underlying cause. The special appearance is a unique proceeding in our courts. In a special appearance proceeding, a defendant asserts that it is not subject to personal jurisdiction in Texas and often appears, physically, in Texas courts through counsel. Asserting the impropriety and inconvenience of defending a suit in Texas, the special appearance movant usually supports its argument through pleadings and sworn affidavits, not live testimony. Witnesses are not usually available for cross-examination, and the court does not observe their demeanor as they take the oath. The court generally grants or denies the special appearance based on documentary evidence and as a consequence must, of necessity, be able to rely on the truthfulness of that evidence.

Here, the Williamson County court expressly found that it relied on Sutphin's affidavits in granting Semco's special appearance. Without them, the Williamson County court may have ruled differently. Arnold's motion and supporting documents suggest that Sutphin's sworn statements were false.⁽⁸⁾ It would be an affront to the "dignity, independence and integrity" of Texas courts if non-resident defendants could escape jurisdiction by presenting false affidavits and if affiants could execute them without fear of reprisal. See generally Eichelberger, 582 S.W.2d at 399. It is imperative that our courts have the power to investigate the veracity of affidavits upon which they rely in determining their jurisdiction and in deciding whether to grant or deny special appearances. The show cause order is the appropriate mechanism for the court to investigate, and for Sutphin to defend, the veracity of his sworn statements--statements that allowed his company to avoid suit in a Texas state court.

We do not decide today whether Sutphin should be held in contempt of court. Nor do we decide the appropriate remedy if he should be found in contempt.⁽⁹⁾ Those questions are not before us. We merely hold that the Williamson County court has the inherent power to investigate the veracity of the affidavits Sutphin filed in support of Semco's special appearance and motion for dismissal.

B. In Personam Jurisdiction

Sutphin argues that even if the Williamson County court possesses the authority to investigate the veracity of his affidavits filed in support of Semco's special appearance, the court lacks personal jurisdiction over Sutphin individually because he is a resident of Colorado. Sutphin maintains that there is no evidence he has had the minimum contacts required for the Williamson County court to exercise jurisdiction over him as a non-resident defendant. Furthermore, he contends that the Williamson County court's investigation will violate traditional notions of fair play and substantial justice. Finally, Sutphin asserts that he executed each of the four affidavits in his capacity as Semco's agent. He concludes that his actions as an agent cannot serve as the basis for the Williamson County court's jurisdiction over him as an individual.

The Texas Supreme Court has decided that the Texas long-arm statute reaches "as far as the federal constitutional requirements of due process will allow." Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex. 1991). Therefore, it is necessary to consider only whether it is consistent with federal constitutional requirements of due process for the Williamson County court to exercise in personam jurisdiction over Sutphin. See id. These due process requirements are assessed under a two-part test: "(1) whether the nonresident defendant has purposely established minimum contacts with the forum state; and (2) if so, whether the exercise of jurisdiction comports with fair play and substantial justice." Id.

1. Minimum Contacts

Under the minimum contacts analysis, we must first determine whether Sutphin has purposely availed himself of the privilege of conducting activities in Texas, thus invoking the benefits and protections of our laws. See id. Sutphin cannot be subjected to jurisdiction based on events that are "random, fortuitous or attenuated . . . or the unilateral activity of another party or a third person." Id. Sutphin's acts, whether committed in Texas or Colorado, must give rise to the conclusion that he could reasonably anticipate being haled before a Texas court. See Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex. 1990). The minimum contacts analysis encompasses both specific and general jurisdiction. See Guardian Royal, 815 S.W.2d at 227. Because there is no allegation that Sutphin engaged in continuous and systematic contacts with Texas, general jurisdiction is not applicable. The Williamson County court may exercise specific jurisdiction over Sutphin if the allegations "arise out of or relate to" Sutphin's contacts with Texas. Id. This analysis will focus on the relationship among Sutphin, the State of Texas, and the litigation. See id. at 228. The nature and quality of Sutphin's actions are more important than the number of contacts with Texas. See Cartlidge v. Hernandez, 9 S.W.3d 341, 347 (Tex. App.--Houston [14th Dist.] 1999, no pet. h.).

Sutphin's contacts with Texas consisted of signing Semco's special appearance pleadings and executing four affidavits that he knew, or should have known, would be submitted to the Williamson County court. In its findings of fact, the court specifically found Sutphin signed and swore to the pleadings and affidavits in his individual capacity and based upon his personal knowledge. Furthermore, the court found that recitals in the affidavits that Sutphin was the president of Semco merely fulfilled the requirement that affidavits in support of a special appearance must show the affiant has such personal familiarity with the facts as would permit him to personally testify as a witness. See Tex. R. Civ. P. 120a(3).

Sutphin executed four affidavits containing assertions that were intended to negate the bases of the Williamson County court's personal jurisdiction over Semco, of which he is the president and sole shareholder. The pleadings and affidavits were purposefully directed at the State of Texas in general and the Williamson County court in particular. Sutphin executed these documents in order to secure for Semco the benefits and protections that Texas law provides to non-resident defendants. Execution of these affidavits was voluntary. Sutphin may have had personal motivations for helping Semco avoid suit in Texas, but his execution of the affidavits was not compelled by the unilateral activity of Arnold or third parties. Sutphin could have chosen not to execute the affidavits, leaving that task to another Semco employee or resolving that Semco would defend suit in Williamson County.

Rule 120a(3) of the Texas Rules of Civil Procedure sets forth the requirements of affidavits filed in support of a special appearance. The requirement that the affidavit "show affirmatively that the affiant is competent to testify" leads us to conclude that Sutphin could reasonably anticipate being called before the Williamson County court to answer for the veracity of his affidavits. Tex. R. Civ. P. 120a(3).

The allegations that Sutphin's affidavits contain false and perjurious information arise directly from Sutphin's contacts with Texas. If Sutphin had not executed the affidavits and directed them toward the Williamson County court, there would be no allegations of false testimony. Finally, the nature and quality of those contacts--pleadings and affidavits intended to influence a court in its decision to grant or deny a special appearance--weigh in favor of the Williamson County court's exercise of specific jurisdiction. Due to the nature of the proceedings, the affiant's sworn statements can have a tremendous influence on the court's decision to grant or deny the special appearance. We hold that Sutphin's contacts with Texas satisfy the minimum contacts test of due process.

2. Fair Play and Substantial Justice

Once the minimum contacts test is satisfied, the defendant's actions are further evaluated to determine whether the exercise of personal jurisdiction comports with the notions of "fair play and substantial justice." Guardian Royal, 815 S.W.2d at 228. The burden is on the defendant to show "a compelling case that the presence of some consideration would render jurisdiction unreasonable." Id. at 231. The factors to be considered are: "(1) the burden on the defendant; (2) the interests of the forum state in adjudicating the dispute; . . . (3) the plaintiff's interest in obtaining convenient and effective relief; (4) the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and (5) the shared interest of the several States in furthering fundamental substantive social policies." Id.

Nothing in this record indicates that defending suit in Texas will be unduly burdensome for Sutphin. In and of itself, distance is usually insufficient to defeat personal jurisdiction. See id. In addition, all other factors weigh in favor of the Williamson County court's assertion of jurisdiction. The State of Texas has the most compelling interest in adjudicating an alleged fraud on a Texas court. Arnold is already engaged in litigation in Colorado, but the District Court in Denver lacks the authority to impose sanctions for pre-removal conduct that occurred in a Texas state court. See In re Bennett, 960 S.W.2d at 40. Therefore, Arnold's interest in convenient and effective relief is best served if the Williamson County court can investigate the allegations. The Williamson County court, which is familiar with the events in question and aware of the impact Sutphin's affidavits had on the special appearance proceeding, is the most efficient forum for these proceedings. We find that the Williamson County court's exercise of in personam jurisdiction over Sutphin comports with the notions of fair play and substantial justice.

Conclusion

Having determined that the Williamson County court possesses the inherent power to investigate the veracity of affidavits which influenced its decision to grant Semco's special appearance, that Sutphin has established minimum contacts with Texas for purposes of this proceeding, and that the assertion of personal jurisdiction comports with notions of fair play and substantial justice, we affirm the final judgment of the Williamson County court.

Mack Kidd, Justice

Before Chief Justice Aboussie, Justices Kidd and Smith

Affirmed

Filed: May 4, 2000

Publish

1. Arnold did not request that the dismissal order in the underlying suit be set aside; its motion was limited strictly to requesting sanctions pursuant to a contempt citation.

2. The plaintiffs' attorneys filed identical cases in each one of the district courts of Nueces County, one of which was assigned to the trial court of Judge Max Bennett. When one of the cases was finally assigned to the 105th District Court, the original petition was amended to join 700 plaintiffs. Plaintiffs' counsel then filed notices of nonsuit in the other cases. Judge Bennett refused to sign the order of nonsuit and imposed fines of $10,000 on the two plaintiffs' attorneys, who admitted their tactic was designed to secure a trial in the Nueces County district court of their choosing.

3. Sutphin cites additional cases that rely on rule 329b(d) of the Texas Rules of Civil Procedure. They illustrate the same proposition: Trial court orders vacating or modifying a judgment in the original dispute after the expiration of plenary jurisdiction are void. See State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995); First Alief Bank v. White, 682 S.W.2d 251, 252 (Tex. 1984).

4. There are several additional Texas cases in which inherent power is described broadly and distinguished from jurisdiction. See Ex parte Pryor, 800 S.W.2d 511, 512 (Tex. 1990) (stating inherent power is source of contempt power); Montgomery v. Kennedy, 669 S.W.2d 309, 312 (Tex. 1984) (stating extrinsic fraud prevents trial on merits and warrants bill of review relief); Ex parte Gorena, 595 S.W.2d 841, 845 (Tex. 1979) (describing inherent power as "essential element of judicial independence and authority"); National Life Co. v. Rice, 167 S.W.2d 1021, 1024 (Tex. 1943) (stating that jurisdiction is power to determine merits of suit between parties).

5. Sutphin maintains that federal case law is wholly irrelevant to this discussion because the Federal Rules of Civil Procedure permit a court to investigate fraud upon the court long after rendition of judgment. "This rule does not limit the power of a court to . . . set aside a judgment for fraud upon the court." Fed. R. Civ. P. 60(b). There is no specific Texas counterpart to rule 60(b). However, the federal court did not rely on rule 60(b) in DuPont. See In re E.I. DuPont de Nemours & Co.--Benlate Litigation, 99 F.3d 363, 367-68 (11th Cir. 1996). Rather, it relied on the court's inherent power. See also Root Refining Co. v. Universal Oil Prods. Co., 169 F.2d 514, 535 (3d Cir. 1948).

6. Arnold cites to several other federal cases in which courts relied on inherent power as the source of authority for their actions. See Chambers v. NASCO, Inc., 501 U.S. 32 (1991); Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990); Universal Oil Prods. Co. v. Root Refining Co., 328 U.S. 575 (1946); Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944).

7. Olivares was ordered to perform certain acts related to real property and was jailed for contempt when he failed to comply. See Ex parte Olivares, 662 S.W.2d 594, 595 (Tex. 1983). First Alief Bank was denied the right to foreclose on its judicial lien. See First Alief Bank, 682 S.W.2d at 252. Latty was no longer entitled to court-ordered child support. See State ex rel. Latty, 907 S.W.2d at 485.

8. Sutphin objects to the documents attached to Arnold's motion and considered by the Williamson County court when it issued the show cause order and denied Sutphin's special appearance. These documents were considered for the limited purpose of determining the court's authority to conduct an inquiry into the allegations of perjury.

Sutphin objects that the sanctions sought by Arnold are criminal in nature. Should the Williamson County court find Sutphin in contempt and assess sanctions that are excessive, Sutphin has a remedy by appeal. For example, in DuPont, the Eleventh Circuit found the district court had the power to conduct the investigation that resulted in the finding that DuPont violated discovery orders but reversed and remanded "because the district court did not afford DuPont the procedural protections the Constitution requires for the imposition of criminal contempt sanctions." 99 F.3d at 369.

requesting sanctions pursuant to a contempt citation.

8. Sutphin objects to the documents attached to Arnold's motion and considered by the Williamson County court when it issued the show cause order and denied Sutphin's special

John Sutphin, Jr. v. Tom Arnold Drilling Contractor, Inc.

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