Edward Bravenec v. Ed Flores

• Court: Court of Appeals of Texas
• Decided: March 20, 2013
• Docket: 04-11-00444-CV
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-11-00444-CV

Edward BRAVENEC, Appellant

v.

Ed FLORES, Appellee

From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2011-CI-06356 The Honorable Janet P. Littlejohn, Judge Presiding

Opinion by: Luz Elena D. Chapa, Justice

Sitting: Catherine Stone, Chief Justice Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice

Delivered and Filed: March 20, 2013

AFFIRMED

Ed Flores (“Flores”) moved for sanctions in the trial court against attorney Edward

Bravenec (“Bravenec”) and his client Michael Westheimer (“Westheimer”). The trial court

granted sanctions against Bravenec, and he appeals the court’s sanctions judgment. We affirm.

BACKGROUND

GMAC Mortgage LLC, (“GMAC”) acquired residential property (“the property”) by

foreclosure and enlisted Cathy Goodwin (“Goodwin”) of Keller Williams/Heritage Realty to sell

the property. Goodwin advertised the property for sale and Flores and Westheimer responded 04-11-00444-CV

with electronic or faxed bids. Flores’s offer of $45,000.00 was accepted. At or near the time of

acceptance, Westheimer submitted an offer of $49,200.00 for the property which was rejected.

Westheimer filed suit against Flores, Goodwin, Keller Williams/Heritage Realty, and

GMAC alleging common law fraud arising out of his attempt to purchase the property and

sought actual and punitive damages. Flores answered and filed his motion for sanctions.

Westheimer amended his petition four times in the next ten months, modifying the factual

allegations and adding numerous claims. Bravenec, as Westheimer’s counsel, signed each of the

petitions. Flores filed a motion for summary judgment. The trial court granted that motion,

severed Flores from the main cause, and specifically carried forward his pending motion for

sanctions in the severed cause. Westheimer non-suited his claims against Flores, and the court

signed an order of nonsuit.

Flores filed an amended sanctions motion in which he sought recovery of costs and

attorney’s fees under Rule 13 of the Texas Rules of Civil Procedure, chapter 10 of the Texas

Civil Practices and Remedies Code, and the Texas Deceptive Trade Practice-Consumer

Protection Act. The trial court conducted a sanctions hearing during which Flores offered and

the trial court admitted in evidence exhibits and testimony. Bravenec noted he had not

previously received the exhibits but, not wanting to delay the hearing, he requested leave to

provide documents in response to the exhibits, if necessary. He further noted he was unaware

that evidence would be heard because the setting was on the non-evidentiary docket, and

therefore requested that the hearing be reset. The trial court refused to reset the case, heard

evidence and argument, granted the motion, and ordered Bravenec to pay Flores and his attorney

$1,500.00 and court costs. The court also ordered Bravenec could avoid the financial sanctions

by performing ten hours of community service and completing a State Bar-sponsored ethics

refresher course. The trial court incorporated the separate summary judgment and sanctions -2- 04-11-00444-CV

orders into a final judgment, and Bravenec appeals the judgment as to the court ordered

sanctions.

COMPLAINTS ABOUT THE SANCTIONS HEARING

Bravenec makes several complaints concerning how the trial court conducted the hearing

on the sanctions motion and the evidence it considered.

Applicable Law

The trial court has great discretion concerning the conduct of trials. Dow Chem. Co. v.

Francis, 46 S.W.3d 237, 240 (Tex. 2001) (per curiam). Evidentiary rulings and the granting or

denial of motions for continuance are committed to the trial court’s sound discretion and will not

be disturbed unless the record discloses a clear abuse of discretion. U-Haul Int’l, Inc. v.

Waldrip, 380 S.W.3d 118, 132 (Tex. 2012); Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.

1986). A trial court abuses its discretion when it acts without regard for guiding rules or

principles. U-Haul Int’l, 380 S.W.3d at 132. “In deciding whether a trial court abused its

discretion, the appellate court does not substitute its judgment for that of the trial court, but only

decides whether the trial court’s action was arbitrary and unreasonable.” Yowell v. Piper Aircraft

Corp., 703 S.W.2d 630, 635 (Tex. 1986).

Discussion

Bravenec complains the trial court ultimately excluded evidence admitted without

objection at the sanctions hearing. However, at the beginning of the hearing, Bravenec objected

to the receipt of evidence. The trial court initially admitted the evidence, but it reconsidered

Bravenec’s objection and disregarded the hearing testimony. Under the invited error doctrine,

Bravenec cannot predicate a claim upon appeal on action that he requested the court take. See

Tittizer v. Union Gas Corp., 171 S.W.3d 857, 862 (Tex. 2005); In re Marriage of Palacios, 358

S.W.3d 662, 664 (Tex. App.—Amarillo 2009, pet. denied). -3- 04-11-00444-CV

Bravenec also contends the trial court erred by denying his request for continuance

because the sanctions hearing was set on the non-evidentiary hearing docket and he was not

prepared to present witnesses. Bravenec did not file a written motion for continuance and, on

this record, the trial court did not abuse its discretion by denying his oral motion. See Dempsey

v. Dempsey, 227 S.W.3d 771, 776 n.1 (Tex. App.—El Paso 2005, no pet.) (where request for

continuance is oral and unsupported by affidavit, it will be presumed that trial court did not

abuse its discretion in denying continuance; granting or denial of a motion for a continuance is

within trial court’s sound discretion); see also Villegas, 711 S.W.2d at 626 (same); TEX. R. CIV.

P. 251.

Bravenec also asserts the trial court erred when it considered some, but not all, of the oral

evidence presented at the sanctions hearing. The trial court’s order provides it “disregard[ed] the

testimony given at the hearing” and considered only the motion for sanctions, amended motion,

exhibits, and argument of counsel. Bravenec assumes the disregarded oral testimony

authenticated the documentary evidence considered by the court. It did not. The trial court took

judicial notice of and admitted exhibits 1-8, 10-36, and 38, which included pleadings, orders,

correspondence, and deposition exhibits. See Liberty Mut. Ins. Co. v. Burk, 295 S.W.3d 771, 779

(Tex. App.—Fort Worth 2009, no pet.). Bravenec did not object at the hearing to the court’s

taking judicial notice of the exhibits nor did he object to their authentication. He objected only

to Flores not previously providing him the exhibits and withdrew that objection to the pleadings

and orders and applied it only to “all the rest of the stuff.” His objections concerning all of the

documents were either withdrawn or waived. See, e.g., Flores v. City of Liberty, 318 S.W.3d

551, 560 (Tex. App.—Beaumont 2010, no pet.) (blanket objection not sufficiently specific to

preserve error). The trial court erred neither in disregarding the oral testimony nor in admitting

and considering exhibits 1-8, 10-36, and 38. Bravenec’s complaint that the trial court admitted -4- 04-11-00444-CV

no evidence on which to base the sanctions fails because the trial court properly admitted this

documentary evidence.

Bravenec contends the trial court erred by failing to consider his response and his brief on

the issue of good faith. He also argues the court erred in excluding these responses without

giving him notice. Because Bravenec neither responded to the sanctions motion before nor

appeared at the first hearing, the court ordered that no response to the motion could be filed or

considered. The trial court was within its discretion in prohibiting the late-filing of a response to

the sanctions motion. See Dow Chem., 46 S.W.3d at 240. Flores’s oral request that no late

responses be filed was sufficient because it was made during a hearing Westheimer and

Bravenec failed to attend despite having notice. See TEX. R. CIV. P. 21 (motion must be written

and served on opponent unless presented during hearing). Moreover, Bravenec’s excluded

response and brief contained argument and assertions of fact, but no supporting affidavits or

evidence. Accordingly, excluding these pleadings was harmless error, if it was error at all. See

G & H Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011) (per curiam) (harmless error

rule, applicable to all errors, provides that to reverse judgment because of error of law, reviewing

court must find error “probably caused the rendition of an improper judgment”); U-Haul Int’l,

380 S.W.3d at 132. (even if trial court abused its discretion, reversal is appropriate only if error

was harmful, that is, it probably resulted in improper judgment); TEX. R. APP. P. 44.1(a)(1).

Bravenec’s complaints are waived as to defects in the sanctions motion and affidavit

because he failed to object in the trial court. See TEX. R. APP. P. 33.1. Furthermore, there is no

requirement that the sanctions motion be verified. See TEX. R. CIV. P. 13. It is also clear

Flores’s attorney had personal knowledge of the matters addressed in the affidavit and it was

sufficient. See Lopez v. Sonic Rests., Inc., No. 04–10–00318–CV, 2010 WL 4008374, at *2

(Tex. App.—San Antonio, Oct. 13, 2010, pet. denied) (mem. op.) (personal knowledge -5- 04-11-00444-CV

requirement is satisfied if affidavit reflects how affiant gained personal knowledge of matters

stated); Valenzuela v. State & County Mut. Fire Ins. Co., 317 S.W.3d 550, 553 (Tex. App.—

Houston [14th Dist.] 2010, no pet.) (affidavit must show affiant is testifying from personal

knowledge and stating facts; affiant’s position or job responsibilities can qualify him as having

personal knowledge of facts and establish how he learned facts); Churchill v. Mayo, 224 S.W.3d

340, 347 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (affidavit that does not state that

facts recited are true, but is based on personal knowledge and is subscribed and sworn before

notary public, is not defective).

Bravenec also complains that the trial court did not set out the reasons for the imposition

of sanctions in its order. See TEX. CIV. PRAC. & REM. CODE ANN. § 10.005 (West 2002) (court

shall describe in sanction order offending conduct and explain basis for sanction imposed); TEX.

R. CIV. P. 13 (court must specify in order particulars for imposition of sanctions). A complaint

regarding a trial court’s compliance with these requirements may be waived if the error is not

preserved by objection or a request that the particular grounds for awarding sanctions be set out

by the court. E.g., Nolte v. Flournoy, 348 S.W.3d 262, 273 (Tex. App.—Texarkana 2011, pet.

denied); Robson v. Gilbreath, 267 S.W.3d 401, 407 (Tex. App.—Austin 2008, pet. denied);

Spiller v. Spiller, 21 S.W.3d 451, 456 (Tex. App.—San Antonio 2000, no pet.). Bravenec does

not direct us to nor do we find any indication in the record that he presented this complaint to the

trial court. Bravenec therefore waived the complaint by failing to object or otherwise preserve

error. See, e.g., Nolte, 348 S.W.3d at 273; Spiller, 21 S.W.3d at 456. 1

Each of these complaints was waived or the trial court’s action was within its discretion.

See U-Haul Int’l, 380 S.W.3d at 132: Dow Chem., 46 S.W.3d at 240; Villegas, 711 S.W.2d at

1 Bravenec contends that this court’s holding in Spiller conflicts with our later decision in Hughes v. Aames Funding Corp., No. 04-00-00442-CV, 2000 WL 1919705 (Tex. App.—San Antonio Dec 20, 2000, no pet.) (not designated for publication). We disagree. Hughes is distinguishable because waiver was not an issue before this court.

-6- 04-11-00444-CV

626. Accordingly, we overrule those complaints. We therefore consider whether the record

contains any evidence to support an implied finding that the pleadings were sanctionable. See

Robson, 267 S.W.3d at 407.

COMPLAINT ABOUT IMPOSITION OF SANCTIONS

Flores asserted the lawsuit was frivolous and sanctions were warranted with respect to

each of the amended petitions. Bravenec contends there was insufficient evidence to support the

imposition of sanctions and insufficient evidence to show that he acted with a malicious or

discriminatory purpose or to show his subjective, malicious state of mind.

Chapter 10 of the Civil Practices and Remedies Code provides that the signing of a

pleading or motion constitutes a certificate by the signatory that, to the best of the signatory’s

knowledge, “each allegation or other factual contention in the pleading or motion has evidentiary

support or, for a specifically identified allegation or factual contention, is likely to have

evidentiary support after a reasonable opportunity for further investigation or discovery.” Low v.

Henry, 221 S.W.3d 609, 614–15 (Tex. 2007) (citing TEX. CIV. PRAC. & REM. CODE ANN.

§ 10.001(3) (West 2002)). Each allegation and factual contention in a pleading or motion must

have, or be likely to have, evidentiary support after a reasonable investigation. Id. at 615. A trial

court may impose sanctions against a party if the court finds that the party has failed to comply

with this requirement. Nolte, 348 S.W.3d at 269 (citing TEX. CIV. PRAC. & REM. CODE ANN. §

10.004(a) (West 2002)).

Rule 13 of the Rules of Civil Procedure allows a court to impose sanctions on a party,

counsel, or both for pleadings, motions, or other papers signed and filed that are groundless and

brought in bad faith or for the purpose of harassment. Loeffler v. Lytle Indep. Sch. Dist., 211

S.W.3d 331, 348 (Tex. App.—San Antonio 2006, pet. denied). The rule defines “groundless” as -7- 04-11-00444-CV

having no basis in law or fact and not warranted by good faith argument for the extension,

modification, or reversal of existing law. TEX. R. CIV. PROC. 13. Groundlessness turns on the

legal merits of a claim. Dike v. Peltier Chevrolet, Inc., 343 S.W.3d 179, 184 (Tex. App.—

Texarkana 2011, no pet.). A claim without evidentiary support is groundless for purposes of

Rule 13, as it has no basis in fact or law. Nath v. Texas Children’s Hosp., 375 S.W.3d 403, 427

(Tex. App.—Houston [14th Dist.] 2012, pet. filed). To determine if a pleading was groundless,

the trial court uses an objective standard: did the party and counsel make a reasonable inquiry

into the legal and factual basis of the claim? Loeffler, 211 S.W.3d at 348; see Robson, 267

S.W.3d at 405. The court will look to the facts available to the litigant and the circumstances at

the time the suit was filed. Robson, 267 S.W.3d at 405. There must have been a reasonable

inquiry, which means the amount of examination that is reasonable under the circumstances.

Robson, 267 S.W.3d at 406 (citing Monroe v. Grider, 884 S.W.2d 811, 817 (Tex. App.—Dallas

1994, writ denied)).

In deciding whether a pleading was filed in bad faith or for the purpose of harassment,

the trial court must consider the acts or omissions of the represented party or counsel, not merely

the legal merit of a pleading or motion. New York Underwriters Ins. Co. v. State Farm Mut.

Auto. Ins. Co., 856 S.W.2d 194, 205 (Tex. App.—Dallas 1993, no writ.); see Davila v. World

Car Five Star, 75 S.W.3d 537, 544 (Tex. App.—San Antonio 2002, no pet.). The party moving

for sanctions must prove the pleading party’s subjective state of mind. Thielemann v. Kethan,

371 S.W.3d 286, 294 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) (citing Mattly v.

Spiegel, Inc., 19 S.W.3d 890, 896 (Tex. App.—Houston [14th Dist.] 2002, no pet.)). Bad faith

does not exist when a party merely exercises bad judgment or is negligent; rather bad faith is the

conscious doing of a wrong for dishonest, discriminatory, or malicious purposes. Thielemann,

371 S.W.3d at 294. A party acts in bad faith if he has been put on notice that his claim may be -8- 04-11-00444-CV

groundless and he does not make reasonable inquiry before pursuing the claim further. See

Robson, 267 S.W.3d at 407; Monroe, 884 S.W.2d at 818 (concluding public policy supports

lesser standard for bad faith under Rule 13 than under DTPA). A court may therefore find bad

faith where a party asserts a claim with knowledge that the evidence fails to support the claim.

Nath, 375 S.W.3d at 427. “Harass” is used in a variety of legal contexts to describe words,

gestures, and actions that tend to annoy, alarm, and verbally abuse another person. Thielemann,

371 S.W.3d at 294 (citing Elkins v. Stotts–Brown, 103 S.W.3d 664, 669 (Tex. App.—Dallas

2003, no pet.)).

Courts must presume that pleadings are filed in good faith, and the burden is on the party

moving for sanctions to overcome that presumption. GTE Commc’n Sys. Corp. v. Tanner, 856

S.W.2d 725, 731 (Tex. 1993). Under some circumstances, the trial court may be able to make

such a determination by taking judicial notice of items in the case file. Texas-Ohio Gas, Inc. v.

Mecom, 28 S.W.3d 129, 139 (Tex. App.—Texarkana 2000, no pet.). Circumstantial evidence

will suffice to allow a trial court to infer bad faith and improper motive. Dike, 343 S.W.3d at

194. A party cannot avoid Rule 13 sanctions by claiming he was not actually aware of the facts

making his claim groundless when he had not made reasonable inquiry, nor by claiming he was

not acting with malicious or discriminatory purpose in bringing the claim. Robson, 267 S.W.3d

at 407.

The imposition of sanctions is within the sound discretion of the trial court, and we set

aside the order only upon a clear showing of abuse of discretion. 2 Low, 221 S.W.3d at 614; see

Tanner, 856 S.W.2d at 730. The determination whether the court’s imposition of sanctions

constitutes an abuse of discretion requires an examination of the entire record. Loeffler, 211

2 Under the abuse of discretion standard, the legal and factual sufficiency of the evidence are not independent grounds of error, but are relevant in determining whether the trial court abused its discretion. Beaumont Bank, N.A. v. Butter, 806 S.W.2d 223, 226 (Tex. 1991).

-9- 04-11-00444-CV

S.W.3d at 347. A trial court abuses its discretion in imposing sanctions only if it bases the order

on an erroneous view of the law or on a clearly erroneous assessment of the evidence. Id. at

347–48. An appellate court, therefore, will view the conflicting evidence in the light most

favorable to the trial court’s ruling and will draw all reasonable inferences in favor of the trial

court’s judgment. Id. at 348.

Flores asserts that each of Westheimer’s petitions warrants the imposition of sanctions.

We primarily consider the allegations of the second amended petition because Flores’ motion for

sanctions and motion for summary judgment with affidavits later introduced in the sanctions

hearing were filed and Westheimer’s deposition was taken before that petition was filed. See

Robson, 267 S.W.3d at 405, 407 (court must examine circumstances at time pleading was filed;

party acts in bad faith if he has notice his claims may be groundless and does not make

reasonable inquiry before pursuing them further). In the second amended petition, Westheimer

alleged that Goodwin falsely represented the property was for public sale and any potential buyer

“would have a fair chance to” buy even though she intended to sell to Flores; that through

several telephone conversations with Westheimer’s agent (Chumney, who is not a party),

Goodwin knew Westheimer was going to submit a higher offer than Flores’s but used GMAC’s

system to lock out that higher offer; that Flores and Carlos Trevino (“Trevino”) were partners

and, acting together to receive a lower price on the property, agreed with Goodwin that Trevino

would forego his commission in exchange for a lower sales price; that Goodwin defrauded

Westheimer by refusing his higher offer to sell to Flores; and that Trevino agreed to act as

Westheimer’s broker to make an offer on the property. Westheimer asserted causes of action for

common law fraud, DTPA violations, breach of fiduciary duty by Trevino, “Westheimer’s

broker,” breach of warranties by real estate agents, Trevino and Goodwin, and that all parties are - 10 - 04-11-00444-CV

liable for all actions of the other parties under agency or partnership theories or for conspiracy.

Westheimer sought actual damages in the amount of the “benefit of the bargain,” absent

defendant’s fraud, and punitive damages.

The evidence available to Westheimer and Bravenec at the time the second amended

petition was filed and before the trial court on the motion for sanctions was sufficient to support

the impositions of the sanctions in this cause. Based on the affidavit testimony of Goodwin, the

GMAC real estate manager, Westheimer’s real estate agents, and Westheimer’s deposition

testimony, the trial court could have reasonably determined that: (1) Goodwin never spoke to or

met Westheimer, his wife, Flores or Trevino; and (2) Westheimer never spoke to Goodwin,

anyone at GMAC or Flores. Westheimer testified his real estate agents, Niles Chumney and

Laura Clark-Arguijo, had more knowledge of the underlying facts, but their affidavit testimony

refuted that claim. 3 Those agents testified they never communicated with Goodwin, Flores, or

anyone at Keller/Williams or GMAC, except for faxing Westheimer’s offers

and receiving an email advising that his offer was not accepted. 4 As to the acceptance of

Flores’s offer, Goodwin entered Flores’s offer into the GMAC computer tracking system, as she

was required to do, and GMAC accepted that offer—thereby automatically and immediately

locking out all other offers—before Westheimer communicated any offer to Goodwin.

3 Clark-Arguijo swore in her affidavit that she was not Westheimer’s real estate agent and did not represent him in his efforts to purchase the property. 4 After Westheimer’s supposed agents failed to corroborate his allegations that they had telephone conversations with Goodwin, Bravenec asserted in open court that Niles Chumney “said under oath that they [sic] were no calls between him and Cathy Goodwin. I don’t know how else to put it, Niles is a liar and … an extremely unprofessional person, and I’m going to be able to show that when I get these phone records.” In this hearing, Bravenec made statements such as “[m]y client alleges that in fact Niles Chumley [sic] had many conversations with Ms. Goodwin;” and “I suspected, she [Goodwin] locked out my client’s offer after about six phone calls with,” but never indicated he had any information rather than speculation to contradict Chumney’s sworn affidavit testimony. Moreover, he had deposed none of these individuals, he had not received the phone records he sought, and the records sought were “cell phone registries” which would not show the content of the telephone calls.

- 11 - 04-11-00444-CV

We have not been directed to and have found no authority to support the existence of a

listing agent’s duty to a potential buyer as Westheimer claims. Westheimer admitted in his

pleadings that his offer was rejected, and he had no contract for the purchase of the property.

Once rejected, an offeror has no further rights regarding a contract the offeree may enter. See El

Paso Cmty. Partners v. B & G/Sunrise Joint Venture, 24 S.W.3d 620, 626 (Tex. App.—Austin

2000, no pet.) (generally one not party to agreement has no interest in terms of contract); see also

Kinman v. Howard, 465 S.W.2d 400, 401 (Tex. Civ. App.—Waco 1971, no writ) (everyone has

right to select with whom he will contract and another cannot be thrust upon him). Nevertheless,

Westheimer’s tort and statutory claims sought to recover “benefit of the bargain” damages as

though he had purchased the property on which his purchase contract was rejected and to which

he has no contractual claim. A party may not recover damages for alleged tortious conduct

asserted to have deprived that party of a legal right he did not possess. See Cissne v. Robertson,

782 S.W.2d 912, 916–18 (Tex. App.—Dallas 1989, writ denied) (broker could not recover

damages on claims of fraud, tortious interference with contract and civil conspiracy where he

was not mentioned in and could not recover on real estate contract). The trial court could have

reasonably determined that Westheimer’s claims had no factual or legal basis. See Bradt v.

Sebek, 14 S.W.3d 756, 768 (Tex. App.—Houston [1st Dist.] 2000, pet. denied).

Westheimer’s allegations of wrongdoing are primarily against Goodwin; Flores is

generally alleged to be liable for Goodwin’s actions “under agency and/or partnership theories”

or otherwise derivatively. Even assuming that Goodwin committed some wrongful act,

Bravenec directs us to no facts or authority that would make Flores liable for those acts and we

are aware of none.

Westheimer asserts that Trevino was his real estate broker as a basis for several claims.

Westheimer did not allege that Trevino was his agent and again, he directs us to no evidence nor - 12 - 04-11-00444-CV

do we find any establishing Trevino represented Westheimer in the transaction or any agreement

existed. To the contrary, Westheimer’s offer in the brokerage information section of the contract

lists only Chumney as “Buyer’s agent.” There is no reference to Trevino in Westheimer’s offer,

and it is clear that Chumney was Westheimer’s agent. On the basis of this offer alone, the trial

court could have reasonably concluded that Trevino was not Westheimer’s agent and did not

represent him in the transaction, but was a stranger to the offer on the property. See Cissne, 782

S.W.2d at 916–18 (broker not named in purchase agreement was stranger to transaction); TEX.

OCC. CODE ANN. §§ 1101.002 (1), (7); .557(a) (West 2012) (“A broker who represents a party in

a real estate transaction or who lists real estate for sale under an exclusive agreement for a party

is that party’s agent.”); Id. § 1101.558 (c), (d) (together indicating broker must consensually

represent party to be agent). The trial court could have reasonably concluded that Trevino was

not Westheimer’s agent or broker and rejected all assertions based on that claim.

Westheimer also alleged that Goodwin, Trevino, and Flores conspired to make the sale to

Flores appear to be an arms-length transaction and to defraud Westheimer and others. He

admitted he had no knowledge of a conspiracy by Goodwin, Flores or Trevino and both

Chumney and Clark-Arguijo disclaimed any knowledge of any conspiracy or wrongdoing. A

civil conspiracy consists of a combination by two or more persons to accomplish an unlawful

purpose or a lawful purpose by unlawful means. Firestone Steel Prods. Co. v. Barajas, 927

S.W.2d 608, 614 (Tex. 1996); see Tri v. J.T.T., 162 S.W.3d 552, 556 (Tex. 2005) (setting out

elements of civil conspiracy). On the record before it, the trial court could have reasonably

determined that there was no evidence to support the claims and allegations of conspiracy against

Goodwin, Trevino, and Flores and could have reasonably found no factual or legal basis for

those claims. See Bradt, 14 S.W.3d at 766–68.

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Westheimer also asserts breaches of alleged warranties arising from statutory provisions

and regulations applicable to real estate agents and brokers by Goodwin and Trevino “acting

with” Flores. As Westheimer pled, those statutes and regulations apply only to licensed real

estate salespersons and brokers. See TEX. OCC. CODE ANN. §§ 1101.002(4), .652(b) (West

2012); 22 TEX. ADMIN. CODE §§ 531.1–.3; 535.156(b), (d) (2012). The trial court could have

reasonably concluded that Flores was not a real estate salesperson or broker, he had no duty to

comply with the statutes and regulations asserted, and he had no liability for failing to comply

with those provisions.

The trial court granted Flores’s traditional and no evidence motions for summary

judgment on all claims indicating that there was no evidence of some or all of the essential

elements of the claims alleged. See Bradt, 14 S.W.3d at 765; TEX R. CIV. P. 166a (c), (i). In

considering the sanctions motion, the trial court could have concluded that Flores’s only actions

with respect to the property were to make a legitimate offer to purchase in accordance with the

listing and, when that offer was accepted, to close the sale, rehabilitate the property, and later sell

it. The trial court could have also reasonably concluded that, at the time the original and each

amended petition was filed, differing allegations and factual contentions in each of the pleadings

did not have, and were not likely to have, evidentiary support after a reasonable investigation.

See Low, 221 S.W.3d at 615–16. The trial court, therefore, could have properly imposed

sanctions under chapter 10 of the Civil Practices and Remedies Code.

Long before the second amended petition was filed, pleadings and evidence in the

affidavits and deposition put Bravenec on notice that the claims against Flores may be

groundless and therefore required him to make reasonable inquiry before pursuing the claims

further. See Robson, 267 S.W.3d at 407 (party acts in bad faith if he has notice his claims may

be groundless and he does not make reasonable inquiry before pursuing them further). To make - 14 - 04-11-00444-CV

reasonable inquiry would have required at least that he effectively investigate with his client and

his client’s alleged real estate agents, as the defendants had done. See Robson, 267 S.W.3d at

406 (reasonable inquiry requires amount of examination that is reasonable under circumstances).

Bravenec also noticed 35 depositions while Flores was a party to the lawsuit, but did not take a

single one. The trial court could have concluded that, had he reasonably investigated, Bravenec

would have discovered that neither Westheimer nor his alleged real estate agents had any

dealings or contact with any of the parties. Thus, contrary to Westheimer’s allegations, Goodwin

made no misrepresentations that he could have relied upon in submitting his offer for the

property. See Bradt, 14 S.W.3d at 766. Likewise, investigation would have disclosed that

Westheimer could not recover damages upon his claims as though he had purchased the

property. See Cissne, 782 S.W.2d at 916–18. At the time the second amended petition was filed,

the trial court could have reasonably concluded factual allegations in the petition had no basis in

fact; the alleged legal claims had no basis in fact or law and did not present a good faith

argument for the extension, modification, or reversal of existing law; and all the asserted claims

were groundless. See Bradt, 14 S.W.3d at 765. Furthermore, viewing the evidence most

favorably to the judgment, the trial court could have inferred that Bravenec did not reasonably

investigate the facts to support the allegations and, by this objective standard, it could have also

determined the second amended petition was groundless. See Loeffler, 211 S.W.3d at 348.

Likewise, the trial court could have inferred that, because Bravenec did not make reasonable

inquiry despite being on notice, he acted in bad faith in violation of Rule 13. See Loeffler, 211

S.W.3d at 349 (bad faith finding supported by fact that opposing attorney pointed out

deficiencies in claims made in prior pleadings); see also Robson, 267 S.W.3d at 407. The trial

court, therefore, could have properly imposed sanctions under rule 13 of the Texas Rules of Civil

Procedure. - 15 - 04-11-00444-CV

After reviewing the evidence considered by the trial court and the entire record, we

conclude that the trial court did not abuse its discretion in imposing sanctions on Bravenec.

Having overruled each of Bravenec’s issues and arguments on appeal, we affirm the trial court’s

judgment.

Luz Elena D. Chapa, Justice

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