Affirmed and Memorandum Opinion filed August 25, 2009.
In The
Fourteenth Court of Appeals
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NO. 14-07-00584-CV
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TONY CANTU, Appellant
V.
JOHN E. MAHER, THOMAS TOLLETT, AND TOMMY=S SEAFOOD STEAKHOUSE, Appellees
On Appeal from the County Civil Court at Law No. 1
Harris County, Texas
Trial Court Cause No. 887156
M E M O R A N D U M O P I N I O N
In two issues, appellant, Tony Cantu, seeks reversal of an order dismissing his suit against appellees, John Maher, Thomas Tollette, and Tommy=s Seafood Steakhouse, following the trial court=s finding of discovery abuse, and further finding that this case is groundless and brought in bad faith and for the purpose of harassment. Because all dispositive issues of law are settled, we issue this memorandum opinion and affirm the trial court=s order of dismissal. See Tex. R. App. P. 47.4.
I. Background
Cantu and Maher are neighbors with a history of conflict arising out of participation in a homeowner=s association. Apparently, disputes between Cantu and several other members of the homeowner=s association precipitated several lawsuits in Harris County. Cantu, pro se, initiated the instant suit against Maher, Tollette, and Tommy=s Seafood Steakhouse. During all times material, Maher was an attorney licensed to practice law in Texas.
The chronology of events essential to disposition of this appeal began before The Honorable Grant Dorfman in the 129th District Court of Harris County. Cantu sued his homeowner=s association claiming breach of contract to repair, and alleging that the other named defendants committed various acts constituting vandalism, libel, slander, threats of bodily injury, and intentional infliction of emotional distress. Maher and Tollette were not named defendants in that case. However, subsequent to an encounter between Cantu, Maher, and Tollette at Tommy=s Seafood Steakhouse, Cantu filed this lawsuit. Cantu contends Maher has engaged in the following conduct: Athreat, harassment, slander and libel and a conspiracy of disseminating libelous accounts about Plaintiff to hurt his character and reputation and interfere with the due course in a civil lawsuit.@ Cantu alleges Tollette engaged in slander and libel by averments in an affidavit that Cantu Athreatened his business.@
On February 28, 2007, Judge Dorfman signed an agreed order granting a temporary injunction. Maher and Tommy=s Seafood Steakhouse Restaurant were included in the order as non-parties. First, Cantu was enjoined from Adirectly or indirectly, having any contact or communication with Tommy=s Seafood Steakhouse Restaurant, its owners, employees, and vendors, by personal means, electronically, telephonically, or by other means.@ Second, Cantu was enjoined from Adirectly or indirectly, having any contact or communication with Mr. John Maher, his family, personal property or real property, by personal means, electronically, telephonically, or be any other means, and from stalking or following John Maher or his family members and from stopping, slowing down, and/or making gestures or comments to or toward John Maher or his family while passing John Maher=s home.@ Third, Maher was similarly enjoined from Astopping, slowing down, and/or making gestures or comments to or toward Tony Cantu or his family while passing Tony Cantu=s home.@
On March 4, 2007, Cantu filed the instant suit against Maher, Tollett, and Tommy=s Seafood Steakhouse in Harris County Court at Law No. 1. On March 9, 2007, Cantu filed an ex-parte Application for Temporary Restraining Order against Maher and Tollette. That same day, the Honorable Ed Landry, visiting judge in the Harris County Court at Law No. 1, signed a Temporary Restraining Order which provide in part:
Defendants, John E. Maher and Thomas Tollett are hereby restrained from the following:
a. Making direct or indirect harassing or vulgar comments, statements threats, or gestures to [Cantu] or any member of [Cantu=s] family;
b. Making physical contact or causing any physical damage to [Cantu=s] property;
c. Entering onto [Cantu=s] property;
d. Parking vehicles in such a manner that blocks or impedes [Cantu=s] driveway or otherwise impairing [Cantu=s] use and enjoyment of their Driveway;
e. Making any libelous or slanderous statements against each other or each Other=s family members, invitees or guests, verbally or in writing
f. Communication for legal matters Shall be in a professional manner without foul language.
The order was set to expire on March 23, 2007; however, the trial court=s docket indicates that on March 12, 2007, Judge Landry signed an order rendering it void. Apparently, this action occurred without benefit of notice to all parties or a hearing.
On March 22, 2007, Maher filed his Plea to the Jurisdiction, Motion to Dismiss, and Motion for Sanctions. On March 23, 2007, Cantu filed his answer, Motion for Temporary Injunction, and Motion for Sanctions. On March 30, 2007, Maher filed a Supplement To Plea To The Jurisdiction, Motion To Dismiss, and Motion For Sanctions in County Court at Law No. 1. On April 3, 2007, Judge Cagle signed an order of dismissal; however, Cantu=s Motion to Reinstate was granted approximately one week later. In his motion to reinstate Cantu asserted that the Alawsuit in this court is about preventing Defendants from slandering Plaintiff, making threats of bodily injury against Plaintiff, and intentionally inflicting emotional distress to Plaintiff, and seeking damages for such slanderous remarks and threats made before and after this case was dismissed, which brings rise to another lawsuit.@ Judge Cagle explained that he was reinstating Cantu=s case because of confusion and misinformation relative to scheduling. Apparently, when Cantu first appeared in Harris County Court at Law No. 1, seeking an ex-parte Temporary Restraining Order, he did not inform visiting Judge Ed Landry regarding proceedings in the 129th District Court.
In response to the ex-parte proceedings in County Court at Law No. 1, Maher filed a Motion For Contempt, Application for Permanent Injunction, and Request for Sanctions in the 129th District Court. Judge Dorfman scheduled hearings, and the parties presented evidence and argument on two different occasions. On April 13, 2007, Judge Dorfman found Cantu in contempt of court for failing to inform Judge Landry, in County Civil Court at Law No. 1, regarding proceedings in the 129th District Court. Judge Dorfman found no credible evidence or satisfactory explanation for Cantu=s decision to file another suit pertaining to the events and circumstances which were the subject of his February 28, 2007 order. Judge Dorfman concluded that Cantu intentionally engaged in precisely the conduct proscribed in his February 28, 2007 order and injunction. He assessed a $3000 sanction against Cantu, and ordered Cantu to provide the 129th District Court with courtesy copies of any pleadings seeking injunctive relief in any Harris County Civil Court. Cantu was further enjoined from Averbal or written contact, direct or indirect, with any person listed as a potential witness or person with relevant knowledge in this case B except through his attorney Mr. Ben Dominguez.@
After this suit was filed, Maher attempted to schedule Cantu=s deposition on one or more occasions. Apparently, Cantu resisted Maher=s attempts to designate the time and location. Judge Cagle denied Maher=s initial requests for discovery sanctions in connection with the effort to schedule Cantu=s deposition, but gave Cantu explicit instructions to attend and cooperate in the taking of his deposition as scheduled. Cantu=s deposition was taken on March 23, 2007. Maher contends appellant=s answers were evasive and non-responsive in violation of Judge Cagle=s earlier order.
On April 19, 2007, The Honorable Jack Cagle heard evidence and argument in support of Maher=s Plea to the Jurisdiction, Motion to Dismiss and Motion For Sanctions. Judge Cagle noted that all parties appeared and no party objected to the notice, format, or time allocation of the proceeding. According to recitations in his order of dismissal, Judge Cagle considered the following: (1) the Court=s file; (2) pending motions; (3) responses and replies to pending motions; (4) April 13, 2007 order of the 129th District Court; (5) appellant=s deposition testimony and other evidence admitted; ( 6 ) argument. Judge Cagle found as follows: (1) Cantu engaged in discovery abuse, and upon notice and after instruction, continued abusive discovery practices by giving evasive and incomplete answers in his deposition; (2) Cantu=s conduct in the discovery process constitutes contempt of court and the judicial process; (3) such conduct should result in sanctions pursuant to Rule 215; and (4) Cantu=s pleadings be stricken and the cause dismissed with prejudice. Judge Cagle accepted as res judicata the findings of the 129th District Court in the order signed by Judge Dorfman on April 13, 2007. Judge Cagle further found as follows: (1) Cantu brought this cause in bad faith and for the purpose of harassment; (2) Cantu=s filings and prosecution of this suit should be sanctioned pursuant to Texas Rule of Civil Procedure 13 and the inherent powers of this Court; (3) Cantu=s pleadings be stricken, and the cause be dismissed with prejudice; and (4) judgment was rendered in favor of Maher in the amount of $5000 for reasonable and necessary attorney=s fees incurred as a consequence of the Rule 13 violation.
II. Waiver
The trial court=s dismissal order was based on Rules 13[1] and 215[2] of the Texas Rules of Civil Procedure. However, in Cantu=s two issues, he contends (1) Athe evidence does not support dismissal for >Res Judicata= or any other reason,@ and (2) he should Anot be sanctioned by TRCP 215, since he did not engage in discovery abuse.@ Cantu fails to acknowledge or base his argument on the correct standard of review.[3] Cantu=s multiple pro se briefs contain his description of events precipitating this suit, assertions that he complied with discovery rules, and argument relative to alleged tortuous conduct of Maher and Tollette. His citations to authority pertain solely to disqualification of counsel. An appellant=s brief must contain a clear and concise argument with appropriate citations to authority. Tex. R. App. P. 38.1(i). Although we must interpret this requirement liberally, an issue not supported by authority is waived. Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex. 2004); Nguyen v. Kosnoski, 93 S.W.3d 186, 188 (Tex. App.CHouston [14th Dist.] 2002, no pet.). Further, it is well established that pro se litigants are held to the same standards as licensed attorneys and must comply with all applicable rules of procedure. Valdez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.CEl Paso 2007, no pet.). Accordingly, we hold Cantu waived his issues on appeal by failing to supply this court with a clear and concise argument and citations to authority.
The judgment of the trial court is affirmed.
III. Motions On Appeal
The following motions were taken with the case: (1) Appellees= Motion for Frivolous and Groundless Appeal; (2) Appellant=s Motion to Expedite Mandate; and (3) Appellees= Motion To Dismiss and Motion for Sanctions. Appellant=s Motion to Expedite Mandate is denied as moot. For reasons outlined below, we overrule Appellees= Motion for Frivolous and Groundless Appeal and Motion To Dismiss, Motion for Sanctions and Repeated Notice.
If we determine that an appeal is frivolous, we may award damages to the prevailing party. See Tex. R. App. P. 45. Although imposition of sanctions is within our discretion, we may do so only in circumstances that are truly egregious. Angelou v. African Overseas Union, 33 S.W.3d 269, 282 (Tex. App.CHouston [14th Dist.] 2000, no pet.). The objective factors to be weighed include the following: (1) failure to present a complete record; (2) raising issues for the first time on appeal, even though preservation of error was required in the trial court; (3) failure to file a response to a request for appellate sanctions; and (4) filing an inadequate brief. Tate v. E.I. Dupont de Nemours & Co., 954 S.W.2d 872, 875 (Tex. App.CHouston [14th Dist.] 1997, no pet.). There is a split of authority within the appellate courts regarding factors to be considered in determining the merits of a motion under Rule 45. Currently, this court requires the appeal to be both objectively frivolous and subjectively brought in bad faith or for the purpose of delay. See Azubuike v. Fiesta Mart, Inc., 970 S.W.2d 60, 66 (Tex. App.CHouston [14th Dist.] 1998, no pet.). In determining the propriety of sanctions, this court views the record from the appellant=s point of view at the time the appeal was filed, and we may not consider any matter that is not in the record, briefs, or other papers filed in this court. Id.
It is clear from this record that the parties are engaged in an emotionally charged dispute. The written communications, motions, and arguments presented by Cantu and Maher are vitriolic and pugilistic. However, after reviewing all relevant evidence in the appellate record, and considering Cantu=s subjective point of view when this pro se appeal was filed, we conclude Cantu did not initiate these proceedings in bad faith or for the purpose of delay. Accordingly, Maher=s Motion for Frivolous and Groundless Appeal and Motion To Dismiss and Motion for Sanctions are overruled.
/s/ Charles W. Seymore
Justice
Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.
[1] Rule 13 provides for sanctions if a party knowingly files a pleading that is either (1) groundless and brought in bad faith or (2) groundless and brought for the purpose of harassment. Tex. R. Civ. P. 13.
[2] A trial court has discretion to sanction a party for failing or refusing to answer questions during a court-ordered deposition. See Tex. R. Civ. P. 215.1(b)(2)(B).
[3] A trial court=s rule 13 or rule 215 sanctions order is reviewed for abuse of discretion. Downer v. Acquamarine Operaters, Inc., 701 S.W.2d 238, 241B42 (Tex. 1985); Parker v. Walton, 233 S.W.3d 535, 539 (Tex. App.CHouston [14th Dist.] 2007, no pet.).