In re L.K.

Court of Appeals of Texas, Sixth District, TexarkanaFeb 2, 2007
No. 06-06-00073-CV (Tex. App. Feb. 2, 2007)

No. 06-06-00073-CV.

Submitted: January 24, 2007.

Decided: February 2, 2007.

On Appeal from the 6th Judicial District Court, Fannin County, Texas, Trial Court No. 37061.

Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Justice Carter.



Richard Watts appeals from the dismissal of his petition for genetic testing. Watts had filed a document entitled "Petition for Genetic Testing" of his ten-year-old granddaughter and another person. Venue was transferred from Watts' home county to the county of the child's residence. The Gentrys filed a motion to dismiss, to which Watts responded, and Watts then also filed a "Motion for Emergency Grandparents Visitation." The Gentrys filed an amended motion to dismiss, which was heard May 18, 2006. On the date of the hearing, Watts also filed a motion for summary judgment and another motion for "Emergency Grandparent Visitation/Access." The trial court heard arguments, declined to hear either of the newly-filed motions, dismissed the petition for genetic testing, and ordered Watts to pay the Gentrys' attorney's fees.

Watts represented himself below, and he also represents himself on appeal. He has labeled fourteen items as issues presented for review. We note that his contentions are unsupported by citation to relevant authority or to the record. Watts' contentions include complaints about: (1) judgment being rendered in the absence of a party, when that party had not been served; (2) the trial court's failure to consider his motion for summary judgment, when that motion was first presented to the court on the day of the hearing the subject of this appeal; (3) the court's refusal to take judicial notice of "everything in this courtroom"; (4) alleged ex parte communications by opposing counsel with the judge — claims entirely unsupported by the record; and (5) the court's refusal to allow him any discovery — a claim that is also unsupported by the record.

For an issue to be properly before this Court, the issue must be supported by argument and authorities and must contain appropriate citations to the record. See Tex. R. App. P. 38.1(h); Knoll v. Neblett, 966 S.W.2d 622, 639 (Tex.App.-Houston [14th Dist.] 1998, pet. denied). We are not required to search the record, with no guidance from the appellant, to see if an issue was raised by the record. See Hall v. Stephenson, 919 S.W.2d 454, 466-67 (Tex.App.-Fort Worth 1996, writ denied). When an appellant does not provide us with an argument that is sufficient to make an appellate complaint viable, we will not perform an independent review of the record and applicable law in order to determine whether the error complained of occurred. Ferguson v. DRG/Colony N., Ltd., 764 S.W.2d 874, 887 (Tex.App.-Austin 1989, writ denied); Most Worshipful Prince Hall Grand Lodge v. Jackson, 732 S.W.2d 407, 412 (Tex.App.-Dallas 1987, writ ref'd n.r.e.).

We will not do the job of the advocate. Jackson, 732 S.W.2d at 412; Maranatha Temple, Inc. v. Enter. Prods. Co., 893 S.W.2d 92, 106 (Tex.App.-Houston [1st Dist.] 1994, writ denied). We also recognize that an inadequately briefed issue may be waived on appeal. See Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994) (discussing "longstanding rule" that point may be waived due to inadequate briefing); Trebesch v. Morris, 118 S.W.3d 822, 824-25 (Tex.App.-Fort Worth 2003, pet. denied); TXO Prod. Co. v. M.D. Mark, Inc., 999 S.W.2d 137, 143 (Tex.App.-Houston [14th Dist.] 1999, pet. denied).

We first address an issue that is dispositive of the appeal. Watts argues in issue nine the trial court erred by concluding that he, as maternal grandfather, had no standing to initiate the action. This contention is one that merits review, for if the court correctly determined that Watts had no standing, all other arguments regarding the petition become moot. There is no argument, nor is there any citation to authority or to the record beyond that set out in his one-sentence issue. Watts appears to take the position that the genetic testing provisions of the Texas Family Code may be used generally to determine the parentage of a child — and attempts to focus on possible genetic defects that might be carried by the child and later passed on, and about which she would not otherwise know. The Texas Family Code does provide for mandatory genetic testing — but only in the context of determining parentage — and contains a list of the individuals and entities who have standing to pursue such an action. Section 160.602 of the Texas Family Code provides that (subject to certain additional limitations), an action may be maintained by the child, the mother, a man whose paternity is to be adjudicated, a support agency, adoption agency, or a representative authorized by law to act for the minor, or a person related to the mother if the mother is deceased, or an intended parent. Tex. Fam. Code Ann. § 160.602 (Vernon Supp. 2006). Watts is none of these.

Standing is a threshold issue and must be decided before the merits of the case. In re K.I.A., 205 S.W.3d 14 (Tex.App.-Eastland 2006, no pet.); In re Pringle, 862 S.W.2d 722, 724 (Tex.App.-Tyler 1993, no pet.). When standing has been statutorily conferred, the statute itself serves as the proper framework for a standing analysis. Daimler Chrysler Corp. v. Inman, 121 S.W.3d 862, 869 (Tex.App.-Corpus Christi 2003, no pet.); Everett v. TK-Taito, L.L.C., 178 S.W.3d 844, 851 (Tex.App. — Fort Worth 2005, no pet.); see Williams v. Lara, 52 S.W.3d 171, 178 (Tex. 2001). Standing to pursue the action, in this context, is provided by statute. Watts is not a party given standing to pursue the action. Thus, the trial court correctly dismissed his suit on that basis.

Watts also argues the trial court erred by refusing to allow him to argue points concerning standing. The record does not support his statement as to the genetic testing petition. The court framed the problems, discussed them in open court with counsel and Watts, and reached a conclusion. Error has not been shown.

Watts argues in issue twelve that the trial court abused its discretion by allowing a "bogus attorney fee, not made in good faith, or not supported by documentation to ultimately render judgment." Although the conclusion appears to be an argument that the evidence does not support the amount of the award, that is not the issue as discussed in the midst of his issue. The amount of the attorney's fee ultimately imposed by the court was based on testimony by a different local attorney explaining a reasonable fee for defending against a lawsuit of this particular type, in light of the actions which had to be taken by counsel to defend the suit. He concluded by testifying that he typically used a flat fee for representing a defendant in such a matter and that a $2,500.00 attorney's fee was appropriate based on the amount of time that could reasonably be spent in defending against the lawsuit (ten hours) and based on the hourly fees of a family law attorney ($250.00) in Fannin County.

Watts does not contend the hourly fee was unreasonable, but argues no attorney could possibly have spent ten hours working on the defense of this case. He bases this on the fact that appellees' current counsel filed a motion effectively identical to one filed by the prior attorney. Watts ignores the time necessarily spent to attempt to familiarize counsel with this uniquely pursued case, the time necessary to attempt to determine how to proceed in the case — from a legal, a procedural, and a factual viewpoint — and then to do so, the time spent with clients, and the time involved in the hearing and preparing the requisite order for the court.

The sole factor attacked by Watts — the effectively identical motion filed by counsel — does not show that counsel committed ethical violations as Watts alleges, and there is nothing to suggest that the entirety of the fee would relate to the preparation of that order.

It appears that Watts' real complaint is that the trial court erred by imposing the attorney's fees as a sanction pursuant to Tex. R. Civ. P. 13 for his frivolous filing of a lawsuit in which he clearly had no standing, in a county where the child had not lived for four years, seeking a form of relief to which he was not entitled.

The trial court heard the parties on this matter. Rule 13 allows imposition of the penalties set out in Rule 215.2(b) on concluding that a pleading or lawsuit is groundless and brought in bad faith, or groundless and brought for the purpose of harassment, or as an experiment. Tex. R. Civ. P. 13. "Groundless" is defined by the rule as having "no basis in law or fact and not warranted by good faith argument for the extension, modification, or reversal of existing law."

There is no conceivable way in which the genetic testing statute could be utilized by this party for this purpose. The trial court found in its judgment that the action was violative of Rule 13 and that the lawsuit was frivolous because Watts had no standing, and then ordered Watts to pay the appellees' attorney's fees.

Sanctions for filing frivolous pleadings are available under Chapter 10 of the Texas Civil Practice and Remedies Code or under Rule 13 of the Texas Rules of Civil Procedure. Save Our Springs Alliance, Inc. v. Lazy Nine Mun. Util. Dist. ex rel. Board of Directors, 198 S.W.3d 300, 319 (Tex.App.-Texarkana 2006, pet. filed). We review a trial court's Rule 13 sanction for abuse of discretion. Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581 (Tex. 2006). Although a trial court's failure to specify the good cause for sanctions in a sanction order may be an abuse of discretion, Gaspard v. Beadle, 36 S.W.3d 229, 239 (Tex.App.-Houston [1st Dist.] 2001, pet. denied), in this case, the reason was apparent from the order.

We also recognize that sanctions should not be used as "a weapon . . . to punish those with whose intellect or philosophic viewpoint the trial court finds fault." Save Our Springs Alliance, 198 S.W.3d at 319; Tarrant County v. Chancey, 942 S.W.2d 151, 154-55 (Tex.App.-Fort Worth 1997, no writ).

A trial court abuses its discretion if it acts "without reference to any guiding rules and principles," such that its ruling is arbitrary or unreasonable. Cire v. Cummings, 134 S.W.3d 835, 839 (Tex. 2004). When determining if the trial court abused its discretion, we must ensure that the sanctions were appropriate or just. Id. The Texas Supreme Court has articulated a two-part inquiry that we should conduct in making this determination. Id. First, we must ensure the punishment was imposed on the true offender and tailored to remedy any prejudice caused. Id. Second, we must make certain that less severe sanctions would not have been sufficient. Id.

The punishment was imposed on Watts, who intentionally pursued a patently unavailable cause of action for reasons not supportable under the statute. Thus, the true offender was punished. See Onstad v. Wright, 54 S.W.3d 799, 809 (Tex.App.-Texarkana 2001, pet. denied). The prejudice caused was that of having to incur attorney's fees to defend against the frivolous lawsuit. The sanction was tailored to remedy the harm. Watts argues that less severe sanctions would have been sufficient. He does not suggest what those might be, and we find it appropriate to require an individual who files a frivolous lawsuit against a party to pay that party's attorney's fees. The sanction was not as severe as it could have been, and we find no abuse of discretion in imposing this sanction in this particular situation. The contention of error is overruled.

For the reasons stated above, we find that the trial court correctly dismissed the lawsuit and that the attorney's fees imposed as sanctions are supportable.

We affirm the judgment of the trial court.