Miller v. Armogida

OPINION

COHEN, Justice.

This is an appeal from a judgment in favor of appellee, James A. Armogida, granting sanctions against appellants, Gwendolyn Louise Miller, Individually and as next friend of Sean Michael Truman, and appellants’ attorney, Woodrow W. Miller. We affirm.

In 1990, appellants sued MacGregor Medical Association (MMA) for medical malpractice. Appellee was appointed guardian ad litem for Sean Michael Truman, the minor appellant. The case was tried and resulted in a judgment for MMA. Appellee signed the judgment in which MMA agreed to pay appellee’s guardian ad litem fees. That judgment was vacated when appellants’ motion for new trial was granted. The case was tried again, and appellants lost again.

Appellants did not appeal the judgment. Instead, they sued appellee for legal malpractice, contending he failed to assist in the prosecution of the medical malpractice suit against MMA, and improperly signed the vacated judgment to the detriment of his ward.

After making several requests that appellants dismiss their legal malpractice suit, ap-pellee moved for sanctions, contending the legal malpractice suit violated Tex.R.Civ.P. 13. Two days later, appellants filed a non-suit. Nevertheless, on February 10, 1993, the court entered judgment in favor of appel-lee. The judgment struck appellants’ pleadings, dismissed their cause with prejudice, ordered Woodrow W. Miller, appellant’s attorney, to pay $15,000 in sanctions, ordered Miller pay an additional $5,000 in attorney’s fees in the event of an appeal, and enjoined appellants from pursuing a similar suit in county court. Appellants raise 30 points of error.

*364In their first 14 points of error, appellants contend their nonsuit deprived the trial court of jurisdiction to rule on the motion for sanctions.

A plaintiff generally has an absolute right to a nonsuit at the moment the motion is filed with the clerk. BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 840 (Tex.1990). The dismissal is effective as soon as the motion is filed with the court. Gibson v. Gibson, 653 S.W.2d 646, 647 (Tex.App.—Waco 1983, no writ). The dismissal, however, has “no effect on any motion for sanctions ... pending at the time of the dismissal.” Tex.R.Civ.P. 162. Therefore, the trial court had jurisdiction to grant sanctions. The United States Supreme Court has reached a similar result. See Willy v. Coastal Corp., — U.S. -, -, 112 S.Ct. 1076, 1078, 117 L.Ed.2d 280 (1992) (holding the federal district court may impose sanctions at same time it dismissed for lack of subject-matter jurisdiction). Sanctions under the federal rules of civil procedure have been upheld even though entered after the plaintiff voluntarily dismissed its suit. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 409, 110 S.Ct. 2447, 2463, 110 L.Ed.2d 359 (1990).

We overrule the first 14 points of error.

In their fifteenth and sixteenth points of error, appellants contend the trial court lacked jurisdiction to enjoin appellants from prosecuting their claim against appellee in county court.

We disagree. Appellants’ nonsuit did not limit the district court’s power to sanction them by injunction. A nonsuit has “no effect on any motion for sanctions ... pending at the time of dismissal.” Tex.R.Civ.P. 162. The judge had the authority to impose “just” sanctions. See Tex.R.Civ.P. 13 & 215(2)(b). The list of permissible sanctions following rule 215(2)(b) is not exclusive. The rule allows “such orders ... as are just and among others the following_” Id. (emphasis added). The injunction was justified to prevent harassment. The Texas Supreme Court recognizes a trial judge’s “broad authority” to order “creative sanction[s]” and has specifically approved sanctions that “are not authorized by any rule or law,” as long as they are just. Braden v. Downey, 811 S.W.2d 922, 930 (Tex.1991).

The sanctions motion gave the judge jurisdiction to adjudicate “just” sanctions. The injunction was appropriate under TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex.1991). A direct relationship exists between the offensive conduct and the injunction. The injunction was directed toward remedying the prejudice to appellee. The injunction was not excessive; it fit the “crime” by preventing the repetition of a frivolous legal malpractice suit. Nothing suggests that a lesser sanction would have sufficed. The injunction did not preclude a consideration of the merits of the legal malpractice claim—that had already occurred in the district court.

We hold that the trial court under the rule permitting the imposition of “just sanctions” has the authority to issue injunctions to control a party’s actions in another court. Once a district court finds that a lawsuit is frivolous, the plaintiff should not be entitled to file it in another court, and the defendant should not have to defend it in another court. The court that found it frivolous should not have to sit idly while another court determines the merits of the case all over again.

We overrule the fifteenth and sixteenth points of error.

In their seventeenth and eighteenth points of error, appellants contend the court lacked jurisdiction to award appellee attorney’s fees. We hold the court had jurisdiction for the reasons stated above. See also Tex.R.Civ.P. 215(2)(b)(8).

We overrule the seventeenth and eighteenth points of error.

In their nineteenth and twentieth points of error, appellants contend the judge abused his discretion by granting an injunction because such relief was not requested.

Appellee’s motion requested “further relief or penalty as may be appropriate.” This includes “just” sanctions. See Tex. R.Civ.P. 215(2)(b). Therefore, the judge did not abuse his discretion. Rule 13 allows “the court ... upon its own initiative, after notice *365and hearing, [to] impose an appropriate sanction available under Rule 215-2b.” Tex. R.Civ.P. 13. Moreover, appellants’ brief did not state or show that they objected on this basis in the trial court. Thus, nothing is presented for review. Tex.R.App.P. 52 & 74.

We overrule the nineteenth and twentieth points of error.

In their twenty-first through twenty-fourth points of error, appellants claim no evidence shows appellants’ attorney violated rule 13.

Rule 13 is violated if a pleading is groundless and either brought in bad faith or for harassment. Tex.R.Civ.P. 13. “Groundless” means without basis in law or fact and not warranted by a good faith argument for an extension of the law. Id.

1. No Evidence

This Court considers only the evidence and inferences that support the finding, and disregards all evidence and inferences to the contrary. Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex.1992). If more than a scintilla of evidence supports the finding, the “no evidence” challenge fails. No findings of fact were requested or filed.

Appellants sued appellee for legal malpractice. The petition was signed by Woodrow W. Miller. Appellants alleged ap-pellee breached his duty by failing to prosecute appellants’ suit against MMA Appel-lee, however, was the minor appellant’s guardian ad litem—not attorney ad litem. As such, appellee owed no duty to act as the minor appellant’s attorney. See Dawson v. Garcia, 666 S.W.2d 254, 265 (Tex.App.—Dallas 1984, no writ) (holding a guardian ad litem is not an attorney for the infant, but an officer appointed by the court to assist in properly protecting the infant’s interests); see also Carolyn Garcia, Guardian Ad Litem: Feast or Famine?, 30 Houston Lawyer, 46-47 (1992).

Before moving for sanctions, appellee twice asked appellants to dismiss the suit. When the requests were denied, appellee moved for sanctions. Appellants nonsuited, and then refiled in county court.

This evidence supports the judge’s finding that appellants’ attorney violated rule 13. Therefore, the no evidence point fails.

2. Insufficient Evidence

We now consider, in addition to the evidence considered under the “no evidence” point of error, the evidence that is contrary to the judgment. See Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). After considering all evidence, we set aside a judgment only if the evidence, standing alone, is so weak as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

No evidence contradicts the judge’s conclusion that appellants’ attorney violated rule 13. Therefore, the evidence standing alone is not so weak as to be clearly wrong or manifestly unjust.

We overrule the twenty-fourth through twenty-fifth points of error.

In their twenty-fifth and twenty-sixth points of error, appellants contend the judge abused his discretion by ordering appellants’ attorney pay $15,000 in attorney’s fees because no evidence or insufficient evidence supports that amount.

Appellants have not briefed these points. Thus, they are waived. Trenholm v. Ratcliff, 646 S.W.2d 927, 934 (Tex.1983); Tex.R.App.P. 74(f). No arguments, no authority, and no citations to the record are made (in appellants’ four and a half page argument jointly discussing eight points of error) concerning the $15,000 award. Moreover, the judgment states that the award was for “sanctions” pursuant to rule 215(2)(b)(8). When attorney’s fees are assessed as sanctions, no proof of necessity or reasonableness is required. Glass v. Glass, 826 S.W.2d 683, 688 (Tex.App.—Texarkana 1992, writ denied); Allied Assoc., Inc. v. INA County Mutual Ins. Cos., 803 S.W.2d 799, 799 (Tex.App.—Houston [14th Dist.] 1991, no writ). We hold that nothing is presented for review.

We overrule the twenty-fifth and twenty-sixth point of error.

*366In their twenty-seventh and twenty-eighth points of error, appellants contend that no evidence or insufficient evidence supports the order that Woodrow W. Miller pay $5000 for attorney’s fees on appeal.

In appellants’ brief, the sole mention of attorney’s fees on appeal is the following: “no evidence of attorneys fees of $5000,” followed by citation to three pages of the record. On those pages, Armogida testified that an appeal would require 28 hours of attorney time and requested a $5000 award for attorney’s fees on appeal. No evidence contradicted this. Moreover, the trial judge took judicial notice of the legal work necessary to defend an appeal. The evidence was sufficient.

We overrule the twenty-seventh and twenty-eighth points of error.

In their twenty-ninth and thirtieth points of error, appellants contend the judge abused his discretion by not conditioning the award of $5000 on appellee winning the appeal. Because of our holding, these points are moot. We overrule them.

The judgment is affirmed.