Memorandum Opinion filed August 15, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 257th District Court, Harris County, Texas, Trial Court Cause No. 00-42726.
Panel consists of Justices FOWLER, SEYMORE, and Senior Justice Margaret GARNER MIRABAL (sitting by assignment).
Ralph O'Hara Douglas files this pro se appeal from the trial court's judgment in favor of his former wife, Elise Selma Ingersoll, enforcing their divorce decree's division of property. We affirm.
Douglas and Ingersoll were divorced on May 29, 2001. In the divorce, Ingersoll was awarded the subject property located on Ruth Street in Houston, Texas. Douglas unsuccessfully attempted to attack the final divorce decree by filing a bill of review, claiming he did not receive a copy of the final divorce decree. He, also unsuccessfully, filed a breach of contract claim against Ingersoll in February of 2003. The trial court granted summary judgment in favor of Ingersoll in the breach of contract suit, and Douglas' appeal from that judgment was dismissed for want of prosecution in February of 2004. On March 23, 2005, Douglas filed a lis pendens on the subject Ruth Street property. Ingersoll then filed this suit to enforce the trial court's division of property and to remove the lis pendens. Douglas was incarcerated when he answered Ingersoll's suit to enforce. Douglas appeals the following order issued by the trial court:
See In re Douglas, Nos. 01-03-00243-CV and 01-03-00442-CV, 2003 WL 21026783 (Tex.App.-Houston [1st Dist.] May 8, 2003, orig. proceeding) (per curiam) (not designated for publication) (denying Douglas' writ of mandamus seeking to force trial judge to allow appeal of final divorce decree and to rule on motion for bill of review when nothing in record established trial judge obstructed appeal or that Douglas filed a bill of review within time period of trial court's plenary power; also dismissing Douglas' second writ of mandamus against district clerk for failure to notify Douglas of final divorce decree for lack of jurisdiction); In re Douglas, No. 01-02-01144-CV, 2002 WL 31839233 (Tex.App.-Houston [1st Dist.] Dec. 19, 2002, orig. proceeding) (per curiam) (not designated for publication) (denying mandamus complaining trial court failed to rule on bill of review when Douglas failed to pay original filing fee, filed no affidavit of indigence, and provided no record to the appellate court containing a certified or sworn copy of every document material to his claim).
See Douglas v. Ingersoll, No. 01-03-00996-CV, 2004 WL 224592 (Tex.App.-Houston [1st Dist.] Feb. 3, 2004, no pet.) (per curiam) (not designated for publication) (dismissing Douglas' appeal for want of prosecution after finding Douglas did not establish indigence or pay for preparation of clerk's record).
See Douglas v. State, No. 14-00-01226-CR, 2002 WL 1988163, at *1 (Tex.App.-Houston [14th Dist.] Aug. 29, 2002, pet. ref'd) (stating Douglas was convicted of theft of between $100,000 and $200,000 by unlawfully appropriating four tracts of real property). Douglas filed a writ of habeas corpus from his criminal conviction that was dismissed in 2005. Douglas v. Dretke, No. CIV.A.H.-05-0851, 2005 WL 2792384 (S.D. Tex. Oct. 26, 2005).
On June 16, 2005, Petitioner's (ELISE INGERSOLL) prayer for relief was heard by this Court. The Court finds that it is just and right to order the enforcement of the division of property in the following way:
THE COURT FINDS that, pursuant to the division of property order in the original decree of divorce, ELISE INGERSOLL, is the sole owner of the property located at . . . Ruth [Street], Houston Texas.
THE COURT FINDS that RALPH O'HAHRA [sic] DOUGLAS has engaged in the harassment of MS. INGERSOLL by placing a Lis Pendens on the property described above.
IT IS FURTHER ORDERED that Ralph O'HARA DOUGLAS remove the Lis Pendens on the subject property and end any further legal actions, which will encumber this property, cloud its title, or prevent MS. INGERSOLL from full enjoyment of it.
IT IS FURTHER ORDERED that RALPH O'HARA DOUGLAS has been censured by this court for the filing of frivolous claims regarding this property.
IT IS FURTHER ORDERED that PROTECTIVE ORDERS are appropriate in the interest of MS. INGERSOLL'S physical, mental, and emotional well being.
IT IS FURTHER ORDERED that RALPH O'HARA DOUGLAS make no attempt to contact MS. INGERSOLL by telephone calls, cellular calls, email or internet transmission, regular US Mail, mailgrams, through friends, family members, business acquaintances, or by any other means at her residence or at the workplace.
IT IS FURTHER ORDERED that RALPH O'HARA DOUGLAS provide MS. INGERSOLL with credit information and transaction details concerning the construction lien on the subject property in the amount of $35,000 held by Nations Bank by August 1, 2005.
IT IS FURTHER ORDERED that RALPH O'HARA DOUGLAS give permission and allow Nations Bank officials/officers to communicate with MS. INGERSOLL on this matter in order to resolve the cloud on the title of this property.
Douglas, acting pro se, raises eight issues:
(1) the trial court abused its discretion by granting appellee's cause,
(2) the trial court erred in granting appellee's cause,
(3) there is legally and factually insufficient evidence that he harassed Ingersoll by his filing a lis pendens on the property,
(4) there is legally and factually insufficient evidence he filed a frivolous claim regarding the property,
(5) there is legally and factually insufficient evidence that a protective order should be granted,
(6) there is legally and factually insufficient evidence that Ingersoll is the sole owner of the Ruth Street property,
(7) there is legally and factually insufficient evidence that he must remove the lis pendens and end any further legal action encumbering or clouding title to this property or preventing appellee's full enjoyment of this property, and
(8) "there is no evidence to support appellee's claims."
We address his issues together and out of turn, just as he has argued them to this court.
A party affected by the property division of a prior decree of divorce may file suit to enforce that division in the court that rendered the decree, even after that court's plenary power over the divorce has expired. TEX. FAM. CODE ANN. § 9.001(a), § 9.002 (Vernon 1998). A suit to enforce is governed by the Texas Family Code and the Texas Rules of Civil Procedure applicable to original lawsuits. Id. § 9.001(b). In a suit to enforce, the court may render further orders to implement or clarify its prior division of property. Id. § 9.006(a). The court may not amend, modify, or change its prior order. Id. § 9.007(a); Brown v. Fullenweider, 52 S.W.3d 169, 170B71 (Tex. 2001) (stating purpose of suit to enforce is "to provide an expeditious procedure for enforcing and clarifying property divisions in divorce decrees."). Therefore, the procedure for a suit to enforce that is set up in the Family Code — including the denial of a party's right to demand a jury trial — shows that a suit to enforce should not involve "any issues other than those related to the division of a marital estate." TEX. FAM. CODE ANN. § 9.005; see Brown, 52 S.W.3d at 171 (finding an attorney's claim against his client for fees is not an appropriate issue in a Texas Family Code suit to enforce).
Douglas' Attempt to Attack the Original Divorce Decree's Property Division
Douglas argues the trial court divested him of his separate property in the divorce decree, and the trial court's subsequent enforcement of that decree violates his property rights under the Texas Constitution. TEX. CONST. art. XVI, § 15. Because he does not identify which of his eight issues he applies this argument to, we discuss it separately.
Ingersoll filed her suit to enforce in the same court that heard her divorce case, and that court had the authority to enforce its prior decree. TEX. FAM. CODE ANN. § 9.002. The trial court had no power to modify or amend its prior decree. Id. § 9.007. Furthermore, divorce judgments are not vulnerable to collateral attack. Berry v. Berry, 786 S.W.2d 672, 673 (Tex. 1990) (per curiam). Because the trial court had no authority to alter its prior order, Douglas' challenge to the decree's property division was as misplaced in his answer to Ingersoll's suit to enforce as it is in this appeal. See Christensen v. Christensen, No. 04-03-00095-CV, 2003 WL 22897120, at *1 (Tex.App.-San Antonio Dec. 10, 2003, pet. denied) (not designated for publication) (finding appellate court had no jurisdiction to consider many challenges to nature of property division in agreed final decree of divorce when appeal was from order enforcing original property division by appointing a master in chancery). To the extent this argument applies to any of Douglas' enumerated issues, it is overruled.
Douglas also argues the trial court could not enforce the divorce decree while a separate cause of action was pending on appeal. A court's power to render further orders enforcing its prior property division is abated while an appellate proceeding is pending. TEX. FAM. CODE ANN. § 9.007(c). Douglas' argument fails because the appeal he refers to was not an appeal of the divorce and was not pending on appeal when he filed the lis pendens in March of 2005, therefore forcing Ingersoll to file a suit to enforce. See Douglas v. Ingersoll, No. 01-03-00996-CV, 2004 WL 224592 (Tex.App.-Houston [1st Dist.] Feb. 3, 2004, orig. proceeding) (per curiam) (not designated for publication) (dismissing Douglas' appeal from trial court cause number 200308517 on February 3, 2004 for want of prosecution).
Douglas' Evidentiary Arguments
The trial court, as the court that rendered the original divorce decree, may take judicial notice of its own records in a case involving the same subject matter between the same parties. Paradigm Oil, Inc. v. Retamco Operating, Inc., 161 S.W.3d 531, 539-40 (Tex.App.-San Antonio 2004, pet. denied). The filing of the lis pendens is a matter of public record and is subject to judicial notice. Ponder v. Brice Mankoff, 889 S.W.2d 637, 645 n. 3 (Tex.App.-Houston [14th Dist.] 1994, writ denied). In addition, this court may, on its own, take judicial notice for the first time on appeal of adjudicative facts that are "capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned." Tex. R. Evid. 201(c), (f); Office of Pub. Util. Counsel v. Pub. Util. Comm'n of Tex., 878 S.W.2d 598, 600 (Tex. 1994); Ponder, 889 S.W.2d at 645 n. 3. Furthermore, a frivolous claim is, inter alia, one without any arguable basis in law or fact. See Harrison v. Tex. Dept. of Criminal Justice, Inst. Div., 164 S.W.3d 871, 874 (Tex.App.-Corpus Christi 2005, no pet.) (discussing dismissal of inmate's suit as frivolous).
The trial court was able to take judicial notice of its prior award of property, that Douglas filed the lis pendens, and of each of Douglas' several attempts — by filing claims, appeals, and writs of mandamus — to circumvent the trial court's property award, including Douglas' breach of contract claim against Ingersoll. We therefore find sufficient evidence supports the trial court's findings and orders:
Douglas does not contest the fact that he filed the lis pendens. On the contrary, he mentioned the "lis pendens filed on cause no. 200308517" in his answer to Ingersoll's enforcement suit (referring to the trial court cause number in his breach of contract action against Ingersoll). This operates as a judicial admission. See Aranda v. Ins. Co. of N. Am., 833 S.W.2d 209, 218 (Tex.App.-Houston [14th Dist.] 1992, no writ) (stating Texas law is well settled that pleadings containing statements inconsistent with a party's present position are receivable as admissions); Gevinson v. Manhattan Constr. Co. of Okla., 449 S.W.2d 458, 466 (Tex. 1969) (stating judicial admissions relieve adverse party from proving the fact admitted and bar the person who made the admission from later disputing that fact). Furthermore, in his brief to this court, Douglas freely admits he filed the lis pendens on the "questioned property" on March 23, 2005. We may accept this uncontested fact as true. TEX. R. APP. P. 38.1(f).
Douglas filed the lis pendens after his breach of contract suit was dismissed on appeal for want of prosecution, outside the ambit of Texas statutory provisions. TEX. PROP. CODE. § 12.007 (Vernon 2003). Ingersoll, therefore, was not obligated to comply with the prescribed statutory methods for canceling the lis pendens. See, e.g., Jordan v. Hagler, 179 S.W.3d 217, 221 (Tex.App.-Fort Worth 2005, no pet.) (declaring lis pendens voidable and capable of cancellation by trial court because it gave notice of a claim unavailable to party who sought collateral, rather than direct, interest in real property).
(1) that Douglas harassed Ingersoll by filing a lis pendens on property, especially when he did so more than a year after the suit he alleged allowed the lis pendens had been dismissed on appeal for want of prosecution (Douglas' third issue),
(2) that Douglas filed frivolous claims regarding the property (Douglas' fourth issue),
(3) that Ingersoll is the property's sole owner "pursuant to the division of property order in the original decree of divorce" (Douglas' sixth issue), and
(4) that Douglas must remove the lis pendens and end any further legal actions encumbering the property (Douglas' seventh issue).
We overrule Douglas' third, fourth, sixth, and seventh issues.
In Douglas' fifth issue, he argues there is insufficient evidence to support the trial court's entry of a protective order barring him from contacting Ingersoll. A trial court is afforded broad discretion in assessing sanctions against parties who make groundless or false statements in their signed pleadings to the trial court for the purpose of delay or harassment. TEX. R. CIV. P. 13. We review a sanction order for an abuse of discretion, that is, whether the trial court acted without reference to any guiding rules or principles. Bradt v. Sebek, 14 S.W.3d 756, 760-61 (Tex.App.-Hous. [1st Dist.] 2000, pet. denied). The trial court's discretion is limited only by the requirement that its order be just and that the sanction imposed be directly related to the harm done by the sanctioned conduct. Id. As we have already discussed, the trial court properly found Douglas harassed Ingersoll by filing the lis pendens, and that Douglas filed frivolous claims regarding the property. The court was well aware of the history between these two parties and of Douglas' numerous groundless attempts to attack its prior order. The court, therefore, issued a sanction order barring further contact with Ingersoll following the June 16, 2005 hearing. While this type of sanction is unusual, we cannot, on this record, find that it is unjust or not related to the harm done by Douglas' conduct. The trial court did not abuse its discretion, and we overrule Douglas' fifth issue.
Douglas contends Ingersoll did not follow proper procedure in obtaining a family violence protective order. However, this is not a family violence protective order — Ingersoll never alleged, and the trial court made no finding, that Douglas ever committed or threatened to commit family violence. TEX. FAM. CODE ANN. §§ 81.001, 85.001 (Vernon 2002).
In light of our rulings on Douglas' issues three, four, five, six and seven, we overrule Douglas' general issues one, two and eight, which are encompassed within the specific issues already discussed.
We affirm the trial court's judgment.