Cibil Kuriakose Vadackaneth v. Seena Asariyathu Sebastian

• Court: Court of Appeals of Texas
• Decided: June 8, 2023
• Docket: 05-21-00893-CV
• Status: Published

Opinion

Affirmed and Opinion Filed June 8, 2023

In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00893-CV

CIBIL KURIAKOSE VADACKANETH, Appellant V. SEENA SEBASTIAN ASARIYATHU, A/K/A SEENA MATHEW, Appellee

On Appeal from the 256th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-21-06642

MEMORANDUM OPINION Before Justices Pedersen, III, Goldstein, and Smith Opinion by Justice Pedersen, III Appellant Cibil Kuriakose Vadackaneth filed this suit below as a petition for

bill of review, attempting to re-open the case in which he and appellee Seena Mathew

were divorced in 2017. Vadackaneth appeals the trial court’s September 12, 2021

Order Dismissing Petition for Bill of Review (the Order), which dismissed his claim

and awarded Mathew attorney’s fees as a sanction. Vadackaneth appears in this

Court, as he did below, pro se. We understand his four appellate issues to contend

that: (1) the trial court made its decision that his claim had no basis in law or fact

based on an incomplete record of the divorce, (2) he was erroneously denied a record of trial court hearings, (3) the Order was drafted by opposing counsel and does not

include the trial court’s conclusions of law, and (4) there is no record of evidence

supporting the trial court’s imposition of sanctions on Vadackaneth. For the reasons

discussed below, we modify the Order in part; as modified, we affirm the Order.

Background

Vadackaneth and Mathew were married in India; they came to the United

States on student visas. After they had been here a number of years, Mathew filed a

petition for divorce. The trial court and both parties signed an Agreed Decree of

Divorce in 2017. The divorce was granted on the ground of Mathew’s adultery, and

the decree awarded each party the property in its sole control.1 No children were

born of the marriage.

Vadackaneth’s petition in this case, filed in 2021, alleged that the divorce had

been based upon fraud, and that he had discovered evidence of the fraud only after

the divorce was finalized. Mathew answered the petition asserting a general denial

and pleading affirmative defenses, including res judicata, waiver, and laches. Along

with her answer, Mathew filed a Motion to Dismiss and for Sanctions (the Motion

to Dismiss), contending that Vadackaneth had sued solely intending to harass her

and that his claim had no basis in law or fact. Vadackaneth filed a jury demand, and

trial was scheduled for August 2021.

1 The only specific property identified was a vehicle awarded to Vadackaneth.

–2– It appears that three hearings were held in the case: (1) on June 25, 2017, to

address pretrial matters; (2) on July 2, 2021, to address Mathew’s Motion to Dismiss;

and (3) on September 7, 2017, to address Mathew’s Motion to Sign and Enter Order

Dismissing Bill of Review (the Motion to Sign Order). We address these hearings in

more detail below.

But following the July 2 hearing on Mathew’s Motion to Dismiss, the trial

judge made these handwritten notes on the docket sheet:

–3– –4– On July 7, Mathews filed an affidavit proving up her attorney’s fees in the

amount of $7,036.72 along with a proposed dismissal order. Two days later,

Vadackaneth filed objections to the proposed order. Mathews then filed her Motion

to Sign Order, and the September 7 hearing on that motion was scheduled.

Following that hearing, the trial court signed Mathew’s proposed final order.

The Order recited that on July 2, the court had considered the arguments and

evidence of the parties and found that Vadackaneth’s petition for bill of review was

“without merit.” The court granted Mathew’s Motion to Dismiss, stating that

Vadackaneth’s petition “lacks a basis in law or fact” and that Vadackaneth filed it in

bad faith and to harass Mathews. The court ordered Vadackaneth to pay Mathews

$7,036.72 in attorney’s fees to deter any “further bad faith litigation.” The court

specifically found that the amount awarded was no more severe than necessary to

accomplish that deterrence. Finally, the court dismissed the cause with prejudice.

Our record contains no request for Findings of Fact and Conclusions of Law.

This appeal followed.

Discussion

Vadackaneth brings four appellate issues. The issues largely require us to

determine the contents of the record before us and the effect of its limited nature.

Reliance on an Incomplete Divorce Record

In his first issue, Vadackaneth complains that the trial court relied on an

incomplete reporter’s record from the divorce—attached to Mathew’s Motion to

–5– Dismiss—to conclude that he filed the current suit to harass her. Vadackaneth relies

on the rule of optional completeness, which would allow him to inquire into “any

other part on the same subject,” and allow him to introduce “any other act,

declaration, conversation, writing, or recorded statement” that would help the trial

court to understand fully “the part” offered by Mathews. See TEX. R. EVID. 107.

Vadackaneth points to his amended petition and his response to the Motion to

Dismiss, which attaches more than 150 pages of exhibits, including the same divorce

transcript. He alleges that the divorce transcript “was being used by the opposing

counsel to misrepresent statements that were not spoken by him during the trial.”

We stress at the threshold that merely attaching documents to a motion or a

response to a motion does not make the documents admissible as evidence. See

Constant v. Gillespie, No. 05-20-00734-CV, 2022 WL 1564555, at *6 (Tex. App.—

Dallas May 18, 2022, no pet.). Accordingly, the trial court’s conclusion that this suit

was brought to harass Mathew was not made based simply on documents attached

by Mathew or Vadackaneth; the Order makes clear that the court’s decision was

made based on the evidence and argument offered at the July 2 hearing.

To respond more specifically to Vadackaneth’s issue, our review of the

documents indicates that the divorce transcript attached to Mathew’s Motion to

Dismiss is identical to the transcript attached to Vadackaneth’s response, and both

copies appear to be complete. Because Mathew did not offer only “part” of the

transcript that in fairness needed to be completed, there is no issue of optional

–6– completeness here. And as to any purported misrepresentations by opposing counsel

in the Motion to Dismiss, Vadackaneth was free to offer relevant evidence that

would disprove any such misrepresentations at the July 2 evidentiary hearing held

for that purpose.2

We discern no error stemming from the documents attached to the Motion to

Dismiss or Vadackaneth’s response, including the transcript from the parties’

divorce. We overrule Vadackaneth’s first issue.

Absence of Reporter’s Record

In his second issue, Vadackaneth asserts that he was denied a court reporter’s

record of the hearings in the trial court. It is true that we have no reporter’s record,

and the trial court’s reporter has confirmed that no record was taken in the case.

Indeed, Mathew argues that Vadackaneth has failed to provide any evidence in

support of any of his four issues because we have no reporter’s record of the hearings

below. The general rule is that when there is no reporter’s record, and findings of

fact and conclusions of law are neither requested nor filed, the judgment of the trial

court implies all necessary findings of fact to sustain the judgment. Waltenburg v.

Waltenburg, 270 S.W.3d 308, 312 (Tex. App.—Dallas 2008, no pet.). Stated

differently, we must presume that, had a transcript of the proceedings been taken, it

would support the conclusions of the trial court.

2 As we will discuss in the next issue, we do not know what evidence Vadackaneth offered at the hearing; we have no reporter’s record. –7– Vadackaneth contends that he asked for records to be taken in these

proceedings, but his requests were ignored. The clerk’s record suggests that the issue

of a record was different in each of the three hearings:

 June 25 Pretrial Hearing. Vadackaneth emailed the clerk on June 22, asking for a court reporter to transcribe the proceedings in the scheduled hearing. The clerk responded that reporters “do not take the record for pretrials.” Vadackaneth replied, thanking the clerk for letting him know. A policy of not recording pretrial hearings is in line with the supreme court’s discussion of those hearings in Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 782–83 (Tex. 2005). The court directed in that opinion that we should presume that pretrial hearings are nonevidentiary. Id. at 783. Neither party in this case suggests that evidence was offered at the pretrial hearing.

 July 2, 2021 hearing on Motion to Dismiss. Our record contains no request for a reporter to take a record of this hearing. However, unlike the pretrial hearing, we know that evidence was offered at this hearing because the trial judge’s Order states that he “consider[ed] the arguments and evidence of the parties” on that date. We also have the judge’s notes made during or after that hearing, which convey his conclusions: that he would dismiss the petition for review; that appellant had not made a prima facie showing of his claim; that the petition was frivolous and harassing with no legal basis; and that he would sign a judgment for attorney’s fees for defending the lawsuit in the amount of $4,651.56.

 September 7, 2017 hearing on Motion to Sign Order. The clerk’s record contains Vadackaneth’s August 30 letter to the trial court clerk asking that a court reporter “document the hearing” on this date. The letter attaches email correspondence between Vadackaneth and the clerk from early August “requesting the Court reporter to be present and [to] document the hearing” scheduled for September 7. Nevertheless, despite this request, no record was taken. This time—unlike the pretrial hearing—our record contains no reason given for the failure to take a record of the hearing.

As to the July 2 hearing, because our record contains no request for a reporter

to take a record, we discern no error in the failure to take one. Without a record, we

–8– must presume the evidence offered at that hearing on the Motion to Dismiss supports

the trial court’s final Order. See Waltenburg, 270 S.W.3d at 312.

As to the other two hearings, the supreme court has stated that “a reporter’s

record is required only if evidence is introduced in open court; for nonevidentiary

hearings, it is superfluous.” Michiana Easy Livin’ Country, Inc., 168 S.W.3d at 782.

As we noted above, we presume the pretrial hearing was nonevidentiary, and nothing

in the clerk’s record or the parties’ briefing suggests otherwise. Likewise, we

identify no suggestion that evidence was anticipated or offered at the hearing on the

Motion to Sign Order. Moreover, after that hearing, the trial court signed Mathew’s

proposed order that referenced only evidence offered at the July 2 hearing, making

no changes to indicate that evidence had been offered at the final hearing. Because

a record of these nonevidentiary hearings would have been superfluous, we conclude

no error was committed in the failure to record them. See id.

We overrule Vadackaneth’s second issue.3

Basis of Final Order

Vadackaneth’s third issue complains that the Order was drafted by opposing

counsel, based upon the trial judge’s notes made following the July 2 hearing. It is

not uncommon for a trial judge to ask a movant to draft an order incorporating the

3 Vadackaneth also complains in this issue that his demand for a jury trial was ignored. The rules of civil procedure allow a trial court to dismiss a cause without proceeding to trial when the cause lacks a basis in law or fact and the cause was filed in bad faith for the purpose of harassment. See TEX. R. CIV. P. 13. –9– trial court’s rulings on a motion. See, e.g., Goff v. Tuchscherer, 627 S.W.2d 397, 398

(Tex. 1982) (judge sent letter “call[ing] on counsel to prepare and present an

appropriate order reflecting that ruling”); Bolinger v. Contreras, No. 13-21-00151-

CV, 2021 WL 3411867, at *3 (Tex. App.—Corpus Christi–Edinburg Aug. 5, 2021,

no pet.) (mem. op.) (“We note that as a matter of practicality, one party will often

draft a proposed order for the trial court to sign.”). The court’s rulings may have

been made orally or within notes or a memorandum sent to counsel. But the proposed

order is not effective until it is signed by the trial court, so if the drafting attorney’s

proposal does not comport with the trial court’s rulings, the court can change or

simply reject the proposed order. It was not error for Mathew’s counsel to draft a

proposed order based upon the trial court’s notes from the July 2 hearing.

We conclude further that the court’s Order does contain the court’s legal

conclusions on which the dismissal and sanctions are based:

The Court finds that the Petition for Bill of Review lacks a basis in law or fact, and that the Petition for Bill of Review was filed in bad faith for the purpose of harassing Respondent. The Court finds that an award of attorney’s fees is appropriate to deter further bad faith litigation from Petitioner. The Court finds that this award of attorney’s fees is no more severe than necessary to deter Petitioner’s conduct.

And these legal conclusions comport with the trial court’s notes.4 We overrule Vadackaneth’s third issue.

4 We discuss a non-conforming factual matter—the amount of attorney’s fees—in the following issue.

–10– No Record of Evidence Supporting Sanction

In his fourth issue, Vadackaneth complains that no record establishes

evidentiary support for the trial court’s imposition of sanctions upon him. We have

concluded, as we must, that in the absence of a record of the evidentiary hearing on

July 2, the trial court heard sufficient evidence to make all necessary findings in

support of the Order. See Petterson v. JGMS Investments LLC, No. 05-15-01286-

CV, 2016 WL 6124134, at *2 (Tex. App.—Dallas Oct. 20, 2016, no pet.) (mem.

op.).

We do, however, acknowledge the factual inconsistency between the evidence

admitted at the July 2 hearing and the amount of attorney’s fees awarded in the final

Order. After hearing evidence on July 2, the trial court identified the amount of

attorney’s fees it intended to include in the judgment as $4,651.56. But Mathew’s

counsel filed an affidavit on attorney’s fees after that hearing, requesting $7,036.72

in fees. The billing records attached to the affidavit indicate that the final invoice to

Mathew, dated July 6, 2021, was in fact for $7,036.72. However, the final legal

activity charged on that invoice was performed on June 25, well before the July 2

hearing.5 Thus, when evidence on attorney’s fees was taken at the July 2 hearing,

Mathew’s counsel had performed all legal services for which payment was sought.

For reasons we cannot know—because, again, we have no reporter’s record of the

5 We acknowledge that counsel unquestionably performed services for Mathew after the date of June 25. But no evidence of additional fees was presented to the trial court. –11– July 2 hearing—the trial court determined the appropriate amount to award was less

than the total billed; that decision was within the trial court’s discretion. See

Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 488 (Tex.

2019) (“[A]n amount [of fees] incurred or contracted for is not conclusive evidence

of reasonableness or necessity.”). And because the September 7 hearing on the

Motion to Sign was a nonevidentiary hearing, no evidence was available to the trial

court on which to base a different decision.

We conclude, therefore, based on the presumptions we must make under

Texas law, that the trial court erred in signing the proposed order insofar as it

contained an amount of attorney’s fees in conflict with evidence taken at the only

evidentiary hearing in proceedings below. That error, on its face, caused

Vadackaneth harm by imposing upon him a sanction for $2,385.16 more than was

determined to be reasonable and necessary on July 2. We may modify the trial

court’s judgment when the record provides the evidence supporting modification.

See Reynolds v. Nagely, 262 S.W.3d 521, 529 (Tex. App.—Dallas 2008, pet.

denied); see also TEX. R. APP. P. 43.2(b). Accordingly, we modify the Order and

change the amount of attorney’s fees awarded to Mathew to $4,651.56.

–12– Conclusion

We modify the trial court’s September 12, 2021 Order to change the award of

attorney’s fees from $7,036.72 to $4,651.56. In all other respects we affirm the

Order.

210893f.p05 /Bill Pedersen, III// BILL PEDERSEN, III JUSTICE

–13– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

CIBIL KURIAKOSE On Appeal from the 256th Judicial VADACKANETH, Appellant District Court, Dallas County, Texas Trial Court Cause No. DF-21-06642. No. 05-21-00893-CV V. Opinion delivered by Justice Pedersen, III. Justices Goldstein and SEENA ASARIYATHU Smith participating. SEBASTIAN A/K/A SEENA MATHEW, Appellee

In accordance with this Court’s opinion of this date, the trial court’s September 12, 2021 Order Dismissing Petition for Bill of Review is MODIFIED as follows:

We change the award of attorney’s fees to delete $7036.72 and to replace that amount with $4651.56.

It is ORDERED that, as modified, the trial court’s September 12, 2021 Order Dismissing Petition for Bill of Review is AFFIRMED.

It is ORDERED that each party bear its own costs of this appeal.

Judgment entered this 8th day of June, 2023.

–14–