Daniel J. Caldwell v. Jennifer E. Zimmerman

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-17-00273-CV

Daniel J. Caldwell, Appellant

v.

Jennifer Zimmerman, Appellee

FROM COUNTY COURT AT LAW NO. 4 OF WILLIAMSON COUNTY NO. 17-0078-CC4, HONORABLE JAMES E. MORGAN, JUDGE PRESIDING

MEMORANDUM OPINION

Daniel Caldwell—a litigant well known to this Court—appears before us again

seeking relief with respect to two previously challenged trial-court orders rendered in a custody

dispute.1 See Caldwell v. Garfutt, No. 03-14-00019-CV, 2016 WL 105920 (Tex. App.—Austin

Jan. 7, 2016, pet. denied) (mem. op.) (“Caldwell II”); Caldwell v. Garfutt, No. 03-12-00696-CV,

2014 WL 1018089 (Tex. App.—Austin Mar. 12, 2014, no pet.) (mem. op.), 2014 WL 1576871 (Tex.

App.—Austin Apr. 17, 2014, no pet.) (supplemental op. on reh’g) (“Caldwell I”). This time, he

challenged the two orders by way of writ of habeas corpus and petition for bill of review, which

the trial court denied. Caldwell also characterizes this appeal as an “original proceeding” seeking

mandamus and habeas relief from this Court. For the following reasons, we affirm the trial court’s

1 Because the procedural and factual background is well known to the parties, and is summarized in our 2016 Memorandum Opinion, we do not recite it again here. See Tex. R. App. P. 47.1. judgment, deny mandamus and habeas relief, and determine that appellee Zimmerman is entitled

to damages for Caldwell’s frivolous appeal, conditioned on Zimmerman’s filing with this Court

within ten days of this opinion evidence of the damages she incurred in defending against

Caldwell’s appeal.

Caldwell’s issues

Caldwell raises fourteen issues and generally briefs them in the “argument” section

of his appellate brief by repeating the two to three sentences per issue that he outlines in his “issues

presented” section. However, as in his previous appeal, he generally fails to support his issues

with substantive arguments or citations to the record or authorities. See Tex. R. App. P. 38.1(i)

(requiring “argument for the contentions made, with appropriate citations to authorities and to the

record”); Caldwell II, 2016 WL 105920, at *3. Accordingly, he has waived his issues. Caldwell II,

2016 WL 105920, at *3. Nonetheless, we once again will attempt to address his issues as best we

can, id., but also as briefly as practicable. See Tex. R. App. P. 47.1.

In his first six issues, Caldwell asks this Court to conclude that its own prior opinions

and judgments in Caldwell I and Caldwell II are reversible error, reurging the same issues that he

has previously raised in those prior appeals. Because they are impermissible collateral attacks on

final judgments, we overrule Caldwell’s first six issues. See Browning v. Prostok, 165 S.W.3d 336,

345–46 (Tex. 2005); Gonzales v. State, 904 S.W.2d 175, 176–77 (Tex. App.—San Antonio 1995,

pet. ref’d); see also Tex. R. App. P. 51.1(b).

In his seventh issue, Caldwell challenges an interim “ruling” of the trial court

determining that his petition for writ of habeas corpus “was premature and improper.” Caldwell

2 appears to be complaining of the trial court’s refusal to hear argument on his writ petition at a

hearing on Caldwell’s motion to recuse Judge McMaster. Caldwell does not cite any authority

supporting his assertion that such interim “ruling” was reversible error, nor have we found any.

Accordingly, we overrule his seventh issue.

In his eighth issue, Caldwell appears to challenge the failure of Judge McMaster to

provide the reasons for his “voluntary” recusal from proceedings in this cause after first “refusing”

to recuse himself pursuant to Caldwell’s motion. Caldwell cites rule of civil procedure 18a(f)(2)(A)

to support his contention that Judge McMaster was required to enter findings stating the reasons

for his recusal. See Tex. R. Civ. P. 18a(f)(2)(A) (“If a motion [to recuse] is filed before evidence

has been offered at trial, the respondent judge must take no further action in the case until the

motion has been decided, except for good cause stated in writing or on the record.”). Caldwell

does not assert that Judge McMaster in fact took any further actions in the cause before recusing

himself—thereby implicating rule 18a(f)(2)(A)—nor does he assert how he was harmed by

the judge’s failure to enter findings when the recusal was the very relief that Caldwell sought.

Accordingly, we overrule Caldwell’s eighth issue.

In his ninth issue, Caldwell contends that the trial court committed reversible error

by “refusing to file findings and conclusions” with respect to its orders dismissing his motion to

recuse Judge McMaster (as moot) and assigning this cause to a new judge. Again, he cites no

authority for his contention that such findings and conclusions are required, nor does he allege

how he was harmed by the court’s failure to make such findings. Accordingly, we overrule

Caldwell’s ninth issue.

3 In his tenth issue, Caldwell contends that he was entitled to a writ of prohibition to

prevent Judge McMaster from presiding at any future proceeding in this cause. However, Caldwell

provides no citation to the record or to any authorities that support this contention, nor does he make

any discernible or substantive argument for why he is entitled to such relief. He has, therefore,

waived the issue. See Tex. R. App. P. 38.1(i). Even were we to address the issue, we would conclude

that he is not entitled to his requested relief because he has not made the requisite showing. See

Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 683–84 (Tex. 1989) (noting that writ of

prohibition is typically used to prohibit unlawful interference with or enforcement of superior

court’s orders or judgments and is extraordinary writ, available only for grievances that may not be

addressed by other legal remedies). We overrule Caldwell’s tenth issue.

In his eleventh issue, Caldwell complains that the trial court erred “by failing to

consider [his] Petition for Writ of Habeas Corpus ex parte” and that such failure “improperly

shift[ed] the burden of proof to [him].” As best we can understand his argument, Caldwell appears

to be complaining that it was error for the trial court to hear argument from Zimmerman in response

to his petition for writ of habeas corpus. Again, Caldwell fails to cite any authority to support his

contention of error, and we, accordingly, overrule his eleventh issue.

In his twelfth issue, Caldwell contends that the trial court erred in granting

Zimmerman’s motion to dismiss his petition for bill of review. Specifically, he complains that he

did not have the requisite notice under the rules of civil procedure and a meaningful opportunity to

respond to the motion. See Tex. R. Civ. P. 91a.3 (requiring motion to dismiss to be filed 21 days

4 prior to hearing). Caldwell, however, did not preserve this complaint.2 See Odam v. Texans Credit

Union, No. 05-16-00077-CV, 2017 WL 3634274, at *4 (Tex. App.—Dallas Aug. 24, 2017, no pet.)

(noting that party waives complaint regarding insufficient rule 91a notice if it (a) fails to bring

complaint to court’s attention during hearing or (b) fails to raise issue in motion for new trial if party

received no notice of hearing); cf. Gaskill v. VHS San Antonio Partners, LLC, 456 S.W.3d 234, 239

(Tex. App.—San Antonio 2014, pet. denied) (noting that complaint of no notice of rule 91a hearing

was preserved in motion for new trial).

Moreover, as Zimmerman asserted in her motion to dismiss, a bill of review may not

be used as an additional remedy after one has made a timely, but unsuccessful, appeal. Rizk v. Mayad,

603 S.W.2d 773, 776 (Tex. 1980); Wheeler v. Hinson, No. 03-11-00067-CV, 2013 WL 363650, at *3

n.4 (Tex. App.—Austin Jan. 25, 2013, pet. denied) (mem. op.); see also Caldwell v. Barnes,

975 S.W.2d 535, 537 (Tex. 1998) (outlining bill-of-review elements). This black-letter rule forecloses

Caldwell’s bill of review as a matter of law, and, therefore, even if there were a procedural defect

with the notice that Caldwell was provided, any such error was harmless. See Tex. R. App. P. 44.1

(“No judgment may be reversed on appeal on the ground that the trial court made an error of

law unless the court of appeals concludes that the error complained of: (1) probably caused the

rendition of an improper judgment; or (2) probably prevented the appellant from properly presenting

2 While Caldwell did file a motion for new trial, he did not complain therein that he received no notice of the hearing on Zimmerman’s motion; rather, he complained, without elaboration, that Zimmerman’s motion was “untimely filed.” See Tex. R. App. P. 33.1 (stating that to preserve error, record must show that complaint was made to trial court with sufficient specificity to make trial court aware of complaint); Reliance Ins. Co. v. Denton Cent. Appraisal Dist., 999 S.W.2d 626, 630 n.1 (Tex. App.—Fort Worth 1999, no pet.) (“[T]o preserve error, the complaint on appeal must be the same as that presented in the trial court.”).

5 the case to the court of appeals.”); Walker v. Owens, 492 S.W.3d 787, 791 (Tex. App.—Houston

[1st Dist.] 2017, no pet.) (applying harmless-error rule to procedural error involving trial court’s

non-compliance with time periods in rule of civil procedure 91a). Accordingly, we overrule

Caldwell’s twelfth issue.

In his thirteenth issue, Caldwell (without citing authority) argues that the trial

court erred in not setting hearings on his motion for reconsideration and motion for new trial.

However, hearings on motions for new trial are not mandatory except when the motion alleges

facts that, if true, would entitle the movant to a new trial. See In re T.B.H.-H., 188 S.W.3d 312, 315

(Tex. App.—Waco 2006, no pet.). Caldwell’s motion for new trial made no such allegations. We

overrule his thirteenth issue.

In his fourteenth and final issue, Caldwell contends that the trial court erred in not

granting his bill of exceptions by “correct[ing]” its findings of fact and conclusions “indicat[ing

that] none of Caldwell’s claims had any basis in fact []or law.” Again, Caldwell wholly fails to cite

to the record and authorities or provide any substantive argument to support this contention. Because

we cannot discern the basis for his complaint or conduct a meaningful review, we conclude that he

has waived his final issue.3

3 Caldwell filed a supplemental brief in which he appears to raise three new issues not raised in his initial appellant’s brief, under the heading: “Supplemental Record Issues Not Raisable in Ant’s [sic] Brief.” Caldwell does not explain why the issues were not “raisable” in his initial brief. In any event, we will not consider the new issues. See Champion v. State, 126 S.W.3d 686, 691–92 (Tex. App.—Amarillo 2004, no pet.) (declining to consider new issues raised in supplemental brief submitted after appellee’s brief filed); Bowles v. State, No. 14-99-01396-CR, 2001 WL 1047026, at *1 n.2 (Tex. App.—Houston [14th Dist.] Sept. 13, 2001, pet. ref’d) (mem. op.) (“Although this court commonly permits briefs to be amended and supplemented with additional authorities and analysis, it rarely, if ever, addresses points of error raised for the first time in amended or supplemental briefs.”).

6 Caldwell’s requests for extraordinary relief

The style of Caldwell’s appellate brief indicates that, in addition to being a direct

appeal, this is an original appellate proceeding seeking extraordinary relief in the form of writs

of habeas corpus and mandamus. Caldwell does not support these requests with argument or

authorities beyond what has been discussed above. See Tex. R. App. P. 52.3(h) (“The petition must

contain a clear and concise argument for the contentions made, with appropriate citations to authorities

and to the appendix or record.”). Accordingly, we deny his requests for extraordinary relief.

Zimmerman’s motion for damages for frivolous appeal

Zimmerman filed a motion for damages with this Court, asserting that Caldwell’s

appeal is frivolous. See Tex. R. App. P. 45 (“If the court of appeals determines that an appeal is

frivolous, it may—on motion of any party or on its own initiative, after notice and a reasonable

opportunity for response—award each prevailing party just damages.”). After considering the

record, briefs, and other papers filed with this Court, we may award damages to a prevailing

party if we objectively determine that an appeal is frivolous. Id.; Owen v. Jim Allee Imports, Inc.,

380 S.W.3d 276, 290 (Tex. App.—Dallas 2012, no pet.). An appeal is frivolous when the record,

viewed from the perspective of the advocate, does not provide reasonable grounds for the

advocate to believe that the case should be reversed. Owen, 380 S.W.3d at 290; Mailhot v. Mailhot,

124 S.W.3d 775, 778 (Tex. App.—Houston [1st Dist.] 2003, no pet.). The decision to grant appellate

sanctions is a matter of discretion that an appellate court exercises with prudence and caution and

only after careful deliberation. Owen, 380 S.W.3d at 290. Although imposing sanctions is within

our discretion, we will do so only in circumstances that are truly egregious. Id.

7 We conclude that this appeal is frivolous and warrants sanctions. No objective

advocate4 could have had reasonable grounds to believe that Caldwell was entitled to the equitable

and extraordinary relief he sought at the trial court and then, upon not prevailing, appealed to

this Court. Nearly half of Caldwell’s appellate complaints challenge this very Court’s final

judgments—judgments from which we can render no further relief. His remaining issues were

either waived due to inadequate briefing and lack of supporting authority or were thinly veiled

attempts to collaterally attack prior judgments by way of extraordinary writs and equitable

proceedings that simply and objectively may not be employed in the circumstances here. He

identifies no harm that he suffered from the alleged procedural errors at the trial court and raises

them here as weak attempts to gain another bite at the proverbial apple, at Zimmerman’s expense

and for which we determine she is entitled to damages.

However, Zimmerman did not present any evidence of the damages she suffered as

a result of the frivolous appeal. She states in her brief that she has incurred $9,854.50 in attorney’s

fees and expenses in connection with this matter, both at the trial court and in defense of this appeal

and in preparing her rule 45 motion, but she did not attach any evidence to the motion or otherwise

file evidence with this Court to support her requested amount of damages. Accordingly, we deny

Zimmerman’s request for damages for the frivolous appeal, but we grant her leave to file within ten

days of this opinion a request for damages under rule 45 with evidence to support the amount of

4 Although we construe pro se pleadings and briefs liberally, we nonetheless “hold pro se litigants to the same standards as licensed attorneys and require them to comply with applicable laws and rules of procedure.” Gonzalez v. Magana, No. 03-14-00387, 2015 WL 4997868, at *2 (Tex. App.—Austin Aug. 18, 2005, pet. denied) (mem. op.).

8 damages incurred. See In re Estate of Ardyce Deuel-Nash, No. 05-14-00128-CV, 2014 WL 5581044,

at *5 (Tex. App. —Dallas Dec. 1, 2014, no pet.) (mem. op.) (acknowledging appellee’s entitlement

to damages for frivolous appeal, determining that he provided no evidence to support requested

amount, and providing him leave to file request for damages with supporting evidence within ten

days), No. 05-14-00128-CV, 2014 WL 6736919 (Tex. App.—Dallas Dec. 1, 2014) (supplemental

op.); cf. Glassman v. Goodfriend, 522 S.W.3d 669, 674 (Tex. App.—Houston [14th Dist.] 2017,

pet. filed) (permitting damages for frivolous appeal when supported by uncontroverted affidavit of

appellate counsel).

We affirm the trial court’s judgment.

__________________________________________

David Puryear, Justice

Before Justices Puryear, Field, and Bourland

Affirmed

Filed: October 26, 2017