In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-03-00153-CR
______________________________
CAMERON JAMES SUTOR, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court No. 3
Dallas County, Texas
Trial Court No. MB0343487-C
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Cameron James Sutor was charged with theft of property of at least $50.00 but less than $500.00. He waived a jury trial. After a nonjury trial, Sutor was found guilty by the trial court and sentenced to 180 days' confinement in jail and a fine of $400.00. He was placed on community supervision for a period of twelve months. His appeal challenges the legal and factual sufficiency of the evidence.
Facts
Jessica Diane Zachary testified that she was the assistant manager of a Dollar Store and that, on the day in question, Sutor and a female entered the store and began placing merchandise in shopping carts. While Zachary was registering all of the items at the checkout, she allowed them to begin to take the merchandise to the car. Sutor began placing items in the car. After all items were loaded into the car, the female began to present a check to Zachary for payment, and Sutor left the store. The female did not have proper identification to accompany the check, and Zachary told her that, without proper identification, she could not accept the check. At that time, the female left the check and opened the door and loudly said, "We're going to have to bring all that stuff back in," and began to walk out of the store. She appeared to direct the statement to Sutor. The doors of the store are directly in front of the counter, with the parking lot to the left. The female opened the door and faced toward their vehicle when she made the statement. Zachary obtained a pen and paper and walked out to the car. As "they were driving off," she got the license plate number. The total amount of merchandise taken was $427.59. When the female made the statement that it was necessary to return the merchandise, Sutor was outside the store and Zachary did not know where he was at that time.
Sufficiency of the Evidence
Sutor contends there is legally and factually insufficient evidence for the court to conclude beyond a reasonable doubt that he was either the primary actor or that he was criminally responsible as a party for the acts of the female. Sutor argues that the State's evidence shows only that the female knew the check was rejected and that there is no evidence Sutor had the intent to promote or assist in the commission of this offense.
In our review of the legal sufficiency of the evidence, we employ the standards set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979). This calls on the court to view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Turner v. State, 805 S.W.2d 423, 427 (Tex. Crim. App. 1991).
The State argues Sutor was properly found to be responsible as a party to the offense. To prove Sutor was a party, the State had to prove Sutor committed an act, which solicited, encouraged, directed, aided, or attempted to aid in the commission of the theft. See Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003). The evidence must show that, at the time of the offense, the parties were acting together, each contributing some part toward the execution of the common purpose. Burdine v. State, 719 S.W.2d 309, 315 (Tex. Crim. App. 1986). In determining whether a defendant participated in an offense as a party, the court may examine the events occurring before, during, and after the commission of the offense, and may rely on the actions of the defendant which show an understanding and common design to commit the offense. Beier v. State, 687 S.W.2d 2, 4 (Tex. Crim. App. 1985). Mere presence at the scene of a crime is not alone sufficient to prove that a person is a party to the offense, although it is a circumstance tending to prove guilt, which, combined with other facts, may suffice to show that the accused was a participant. Beardsley v. State, 738 S.W.2d 681, 685 (Tex. Crim. App. 1987); Barnes v. State, 62 S.W.3d 287, 297 (Tex. App.—Austin 2001, pet. ref'd). To establish liability as a party, in addition to the illegal conduct by the primary actor, it must be proven that the secondary actor harbored the specific intent to promote or assist in the commission of the offense. Barnes, 62 S.W.3d at 296; Pesina v. State, 949 S.W.2d 374, 382 (Tex. App.—San Antonio 1997, no pet.). The accused must know that he or she is assisting in the commission of an offense. Pesina, 949 S.W.2d at 382.
In this instance, Sutor could only be convicted as a party. As such, the State was required to prove the theft, plus an act by Sutor done with the specific intent to promote or assist in the commission of theft.
This is where the evidence fails. There is no evidence that Sutor did any act with an intention to promote or assist a theft or that he knew he was assisting in the commission of an offense.
Reviewing the evidence that is most favorable to the verdict, we find that Sutor and a female loaded merchandise into shopping carts and, with permission of the clerk, took the merchandise to a vehicle. As the female was attempting to write a check for payment, Sutor left the premises. There is no evidence Sutor ever knew the clerk rejected payment by the check. The only evidence in that regard concerns the female shouting from inside the store that the merchandise had to be returned. The clerk acknowledged she did not know where Sutor was at that time. There is no evidence as to where either Sutor or the car was located in relation to the store or to the female when she made the statement. There is no evidence as to the size of the parking lot that might allow an inference Sutor heard the remark. None of Sutor's other actions show any intent to assist in the commission of a theft. There is no evidence as to which of the parties was driving the vehicle. There is no evidence of any actions showing the parties had an understanding or design to commit theft. After reviewing the relevant evidence in the light most favorable to the verdict, we have determined that a rational trier of fact could not have found beyond a reasonable doubt the essential elements to convict Sutor as a party to the offense.
We find that the evidence is legally insufficient, and we reverse the judgment and render a judgment of acquittal.
Jack Carter
Justice
Date Submitted: June 1, 2004
Date Decided: June 2, 2004
Do Not Publish
We hold that the subsequently filed motion for attorneys' fees was not timely and thus does not support a request for attorneys' fees.
Young requested the nonsuit February 23, 2005. Doolin's filed its motion for attorneys' fees February 28, 2005. The trial court did not sign the order granting the nonsuit until June 22, 2005. Doolin's contends that, because the motion was filed before the order granting the nonsuit, it was pending at the time of the dismissal and therefore timely within Rule 162. See Tex. R. Civ. P. 162.
Any pleading requesting attorneys' fees must have been filed before Young's request for nonsuit, not before the trial court's order granting that request. Absent a pending claim for affirmative relief, sanctions, attorneys' fees, or other costs, a nonsuit is effective on request. Granting a request for nonsuit is a purely ministerial duty. A trial court's refusal to grant the nonsuit would violate that duty. Hooks v. Fourth Court of Appeals, 808 S.W.2d 56, 58 (Tex. 1991); Greenberg v. Brookshire, 640 S.W.2d 870, 872 (Tex. 1982); see also Tex. R. Civ. P. 162 cmt. If an opposing party has no claim for affirmative relief pending, a trial court's jurisdiction over a cause ends when a notice of nonsuit is given for the only pending claim for affirmative relief. In effect, in such a situation, the filing of a nonsuit divests a trial court of its subject-matter jurisdiction. Williams v. Nat'l Mortgage Co., 903 S.W.2d 398, 402 (Tex. App.—Dallas 1995, writ denied).
Doolin's contends that, if the motion for attorneys' fees was late under Rule 162, the trial court still had the authority to award attorneys' fees because the motion was filed before the expiration of the court's plenary power. In support, Doolin's cites several cases, including Scott & White Mem'l Hosp. v. Schexnider, 940 S.W.2d 594, 596 (Tex. 1996); see also Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990); In re Bennet, 960 S.W.2d 35, 38 (Tex. 1997).
Each of the cases cited by Doolin's is distinguishable from the present case. Schexnider and the others all discuss a trial court's jurisdiction to impose sanctions after a request for nonsuit has been made. We recognize that attorneys' fees may be awarded as sanctions. Brantley v. Etter, 677 S.W.2d 503, 504 (Tex. 1984). But attorneys' fees are not identical to sanctions as Doolin's suggests, and the trial court did not award either.
Courts possess the inherent power to sanction an attorney's behavior. Bennet, 960 S.W.2d at 40; Onstad v. Wright, 54 S.W.3d 799, 804 (Tex. App.—Texarkana 2001, pet. denied). In contrast to an award for attorneys' fees, sanctioning counsel does not involve a judgment on the merits of the action. Rather, it requires the determination of a collateral issue: whether the attorney has abused the judicial process, and, if so, what sanction would be appropriate. Bennet, 960 S.W.2d at 39. Sanctions often do not operate on the underlying merits of a case, whereas an award of attorneys' fees necessarily stems from the merits of a case.
Further, assuming that a trial court has the authority to consider a motion for attorneys' fees filed after a nonsuit request, Doolin's has cited no authority that would require the trial court to consider such a motion. Schexnider and the other cases cited by Doolin's all involved situations where the trial court had decided to impose sanctions. None of the cases stands for the proposition that a trial court must award attorneys' fees requested after a request for nonsuit.
(2) Doolin's Was Not the "Prevailing Party" in the Bill of Review Proceedings
Attorney's fees are available to the prevailing party in a bill of review action if there is a legal basis for awarding them pursuant to the underlying cause of action. Palomin v. Zarsky Lumber Co., 26 S.W.3d 690, 696 (Tex. App.—Corpus Christi 2000, pet. denied); see also Meece v. Moerbe, 631 S.W.2d 729, 730 (Tex. 1982). There is no dispute between the parties that Doolin's was entitled to attorneys' fees in the underlying collection action. Young contends Doolin's is not entitled to attorneys' fees accrued during the bill of review proceedings because it was not a "prevailing party" in that action. We agree.
A determination of whether a party is the prevailing or successful party "must be based upon success on the merits . . . ." Nicholson v. Tashiro, 140 S.W.3d 445, 447 (Tex. App.—Corpus Christi 2004, no pet.), citing City of Amarillo v. Glick, 991 S.W.2d 14, 17 (Tex. App.—Amarillo 1997, pet. denied). Due to the nonsuit, the merits of the bill of review were never reached by the trial court. Therefore, Doolin's had no opportunity to prevail on the merits.
The "prevailing party" has alternatively been described as the party who is vindicated by the trial court's judgment. Brown, 135 S.W.3d at 347. As we said in Brown, "The prevailing party is typically described as the party to a suit that either successfully prosecutes the action or defends against it, prevailing on the main issue, even though not to the extent of its original contention." Id. The trial court's order granting the nonsuit shows that Doolin's does not fit either of these descriptions.
The trial court dismissed the case without prejudice. Because, under the order, Young retained a right to refile his case, Doolin's was not vindicated by the trial court's judgment, nor did it prevail on the merits. The merits of the main issue were not decided. The bill of review action was simply put aside with the possibility that it would be revisited at a later time.
Doolin's cites several cases in support of its contention that it was the prevailing party. Cooter & Gell, 496 U.S. 384, is inapplicable to the instant case. In Cooter & Gell, the issue before the United States Supreme Court was whether sanctions could be imposed under Rule 11 of the Federal Rules of Civil Procedure after a nonsuit was taken. The Court did not address the "prevailing party" issue.
Doolin's also cites Terry v. Howard, 546 S.W.2d 66, 69 (Tex. App.—Dallas 1976, no writ). In that case, the plaintiff nonsuited a group of defendants that it had served by publication requiring the appointment of ad litem attorneys. The Dallas court held that the plaintiff should pay the ad litem attorneys' fees even though it had nonsuited those defendants. That case is distinguished by the presence of the ad litem attorneys' fees. Ad litem attorneys' fees are taxed as part of the costs of court. Tex. R. Civ. P. 244. The party requesting nonsuit is always responsible for court costs. Tex. R. Civ. P. 162. The "prevailing party" analysis is not necessary when determining who should pay court costs. Therefore, the holding in Terry is inapplicable here.
Perhaps the most similar case cited by Doolin's is Pac. Employers Ins. Co. v. Torres, 174 S.W.3d 344 (Tex. App.—El Paso 2005, no pet.). In that case, an insurance company had requested judicial review of a decision of the Texas Workers' Compensation Appeals Commission. Three weeks before the trial date, the insurance company nonsuited its action. The trial court dismissed the case without prejudice and awarded attorneys' fees to Torres. The appeals court affirmed the award of attorney's fees, holding that Torres had prevailed on the issue on which judicial review was sought. Id.
We are unwilling to extend the holding in Torres to the facts of this case. The Torres decision was based solely on the court's interpretation of a statute within the Texas Labor Code. See Tex. Lab. Code Ann. § 408.221(c) (Vernon Supp. 2005). The court noted that its decision was influenced by the canon that courts should liberally construe workers' compensation provisions in favor of injured workers. See Kroger Co. v. Keng, 23 S.W.3d 347, 349 (Tex. 2000); see also Cigna Ins. Co. of Tex. v. Middleton, 63 S.W.3d 901, 903 (Tex. App.—Eastland 2001, pet. denied).
We are guided by the canon that the rules should be construed liberally in favor of the right to nonsuit. Greenberg, 640 S.W.2d at 872, citing Smith v. Columbian Carbon Co., 145 Tex. 478, 198 S.W.2d 727 (1947). In contrast to the cases in which a judgment has been rendered, a nonsuit is a termination of the pleaded causes of action and asserted defenses without an adjudication of their merits that returns the litigants to the positions they occupied before the plaintiff invoked the court's jurisdiction. Molinar v. Plains Ins. Co., 660 S.W.2d 845, 849 (Tex. App.—Amarillo 1983, no writ). That being so, the taking of a voluntary nonsuit does not constitute litigation of the issues in a case and does not prejudice the parties against seeking the same relief in a subsequent lawsuit. Rexrode v. Bazar, 937 S.W.2d 614 (Tex. App.—Amarillo 1997, no writ); In re T.N.V., 855 S.W.2d 102, 103 (Tex. App.—Corpus Christi 1993, no writ); Ashpole v. Millard, 778 S.W.2d 169, 171 (Tex. App.—Houston [1st Dist.] 1989, no writ).
Because the bill of review was nonsuited, Doolin's was not the prevailing party. Therefore, Doolin's is not entitled to attorneys' fees incurred during its litigation of the bill of review action.
We affirm the judgment of the trial court.
Josh R. Morriss, III
Chief Justice
Date Submitted: November 16, 2005
Date Decided: January 6, 2006