Frank C. Powell v. Kevin Alan Fletcher

• Court: Court of Appeals of Texas
• Decided: March 26, 2024
• Docket: 01-20-00322-CV
• Status: Published

Opinion

Opinion issued March 26, 2024

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-20-00322-CV ——————————— FRANK C. POWELL, Appellant V. KEVIN ALAN FLETCHER AND STEPHEN FLETCHER, Appellees

On Appeal from the 257th District Court Harris County, Texas Trial Court Case No. 2018-67151

OPINION

This is an appeal of an order sanctioning an attorney for a recusal motion filed

in bad faith. Appellant Frank Powell sought to recuse the trial court judge.1

1 Powell was disbarred, and his disbarment is pending on appeal in this Court. See 01-23-00224-CV, Frank C. Powell v. Comm’n for Lawyer Discipline. Following a hearing, the recusal motion was denied. Finding that the recusal motion

was brought in bad faith, the court sanctioned Powell $19,000. Powell appealed. We

affirm.

Background

This case arises out of a suit involving the parent-child relationship

(“SAPCR”) between Catherine Murrah Molloy and appellees, Kevin Alan Fletcher

and Stephen Alan Fletcher, father and paternal grandfather, respectively, of the

children. Appellant Frank Powell began representing Molloy after the parties

reached a mediated settlement agreement (“MSA”).

A. Powell’s Representation of Molloy

Once he began representing Molloy, Powell threatened opposing counsel for

refusing to renegotiate the MSA and told them that he would create as much “hell”

for them as possible. He filed more than sixty documents including an “Application

for Court Order.” This application claimed that appellee Stephen Fletcher

“submitted false pleadings in a fraudulent attempt” to meet standing requirements in

the SAPCR. The court held a hearing on Powell’s “Application” and several other

motions in August 2019. At the hearing, the trial court granted a motion to enter the

MSA and denied all other motions, including Powell’s “Application for Court

Order.” After the hearing, inconsistent with her oral rulings and other written rulings,

the trial court signed the proposed order. Within two weeks, the court entered a

2 written ruling that the court order was erroneously signed and “VOIDED.” The trial

court made a written notation that the original order was signed in error. The district

clerk’s office then followed standard procedures for voided orders.

When the underlying case was appealed, Powell requested that the original,

voided order be included in the clerk’s record, and he requested to supplement the

record with the order. In response, the appellees stated that they had noticed the

clerical error and brought it to the clerk’s attention, who then spoke with the trial

judge. The order was removed from the file and the clerk’s website. Based on these

interactions, Powell moved to recuse the trial judge.

In his recusal motion, Powell alleged that by communicating with the clerk

regarding the status of the voided order, the trial judge participated in ex parte

communications, became “a witness to how this signed court order became

unavailable,” and committed the criminal offense of tampering with a government

record.2 The motion was brought under Texas Rule of Civil Procedure 18b(1)

(“impartiality might reasonably be questioned”); 18b(3) (“personal knowledge of

disputed evidentiary facts concerning the proceeding”); and 18b(4) (“judge . . . has

been a material witness concerning the proceeding”). See TEX. R. CIV. P. 18b

(“Grounds for Recusal and Disqualification of Judges”).

2 Powell cited TEX. PENAL CODE § 37.10(a)(3). 3 The Honorable Susan Brown, Presiding Judge of the Eleventh Administrative

Judicial Region of Texas, held a recusal hearing. See TEX. R. CIV. P. 18a(g)(1). Judge

Brown denied the recusal motion and found that it had been brought in bad faith.

The court, addressing Powell, stated:

[Mr. Powell] brought this motion in bad faith. Based on the fact that— of your communication with the District Clerk’s Office. You knew full well and good that that order had been voided back in September. And you made the choice to make—to file this recusal, make allegations against [the trial judge], against the District Clerk’s Office, when all you had to do, sir, was to file a motion and the judge would have given you that information. So I don’t need to hear anything else to show that you filed this in bad faith. So I can end this now, Counsel, because I believe, as I have never in a recusal hearing believed, that someone brought it in bad faith.

Judge Brown sanctioned Powell and Molloy $19,000. See TEX. R. CIV. P. 18a(h).

Powell and Molloy filed a supersedeas bond in the trial court. Powell and

Molloy each appealed.

B. Proceedings after appeal

At one time, Powell represented Molloy in four proceedings pending in this

court, including two appeals and two original proceedings. See In re Molloy, No. 01-

19-00894-CV, 2021 WL 1618469, at *1 n.3 (Tex. App.—Houston [1st Dist.] Apr.

27, 2021, orig. proceeding) (mem. op.) (listing appellate case numbers). In June

2020, following unsolicited communications from Molloy, the appellees and their

counsel filed a motion to show authority, alleging that Molloy had informed Kevin

Fletcher that she no longer wished to prosecute her appeals but that her attorney

4 refused to follow her instructions. Id. at *1. This Court abated the appeals and

remanded to the trial court to hold a hearing. Id.

The trial court held a five-day evidentiary hearing in August 2020. The trial

court concluded that Powell and his firm did not have authority to represent Molloy

and that Molloy had unequivocally desired to dismiss her four pending causes. In re

Molloy, 2021 WL 1618469, at *1. The court concluded that there was no legal basis

for the issues raised in the appeals, that they were groundless and frivolous on their

merits, and that there was no factual basis for raising the issues in each proceeding.

Id. The court found that Powell attempted to relitigate issues repeatedly to needlessly

increase the cost of litigation, and that he pursued this litigation in bad faith to harass

the Fletchers, opposing counsel, and the trial court. Id. The court also found that

Powell committed several violations of the Disciplinary Rules. Id. The court

recommended sanctioning Powell and his firm $491,582.72. Id.

Tragically, Molloy died after the hearing. The Fletchers moved to dismiss

Molloy’s appeal after her death and moved this Court for the imposition of appellate

sanctions against Powell for his conduct, including the filing of this appeal in bad

faith. The Fletchers filed the motion in each of the appeals in which Molloy was

represented by Powell, and requested, for efficiency, that we rule on the motion in

this appeal. See Scott Bader, Inc. v. Sandstone Prods., Inc., 248 S.W.3d 802, 806 n.1

(Tex. App.—Houston [1st Dist.] 2008, no pet.) (court may take judicial notice of

5 record in other appeal involving same parties and related issue). This Court

dismissed Molloy’s appeals. Only Powell’s appeal of the $19,000 sanctions order

for filing a bad faith motion to recuse the trial judge and the Fletchers’s motion for

the imposition of sanctions remain.

Sanctions Order

In a single issue, Powell contends that the trial court abused its discretion by

issuing sanctions against him. We disagree.

A. Standard of Review

“Various rules and statutes imbue courts with authority to sanction attorneys

for professional lapses of one kind or another with or without bad faith.” Brewer v.

Lennox Hearth Products, LLC, 601 S.W.3d 704, 717–18 (Tex. 2020) (citing, among

other rules, TEX. R. CIV. P. 18a(h)). “Courts also possess inherent powers that aid

the exercise of their jurisdiction, facilitate the administration of justice, and preserve

the independence and integrity of the judicial system.” Id. at 718 We review a trial

court’s sanctions order for abuse of discretion. Id. at 717. “The test for an abuse of

discretion is not whether, in the opinion of the reviewing court, the facts present an

appropriate case for the trial court’s action, but ‘whether the court acted without

reference to any guiding rules and principles.’” Cire v. Cummings, 134 S.W.3d 835,

838–39 (Tex. 2004) (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d

6 238, 241 (Tex. 1985)). The trial court’s ruling should be reversed only if it was

arbitrary or unreasonable. Cire, 134 S.W.3d at 839.

Texas Rule of Civil Procedure 18a(h) permits the judge who hears a motion

for recusal to order the party or attorney who filed the motion, or both, to pay

“reasonable attorney fees and expenses incurred . . . if the judge determines that the

motion was (1) groundless and filed in bad faith or for the purpose of harassment, or

(2) clearly brought for unnecessary delay and without sufficient cause.” TEX. R. CIV.

P. 18a(h).

B. Analysis

1. Form of Sanctions Order

On appeal, Powell argues that the sanctions order should be reversed because

the order “does not follow the statutory language of the relevant statute.” Appellant’s

Br. 9. The order states:

Powell argues that the word “filed” should have been included in the order

rather than crossed out.

Powell did not preserve this issue for our review because it was not presented

to the trial court. TEX. R. APP. P. 33.1(a). Texas Rule of Appellate Procedure 33.1(a)

7 provides that, as a prerequisite for presenting a complaint on appeal, the record must

demonstrate that the complaining party made his complaint to the trial court by a

timely request, objection, or motion that stated the grounds for the ruling sought with

sufficient specificity to make the trial court aware of the complaint. TEX. R. APP. P.

33.1(a)(1)(A). “[W]hen an attorney fails to complain of the sanction imposed and

fails to ask the trial court to reconsider its actions in imposing the sanction, the

attorney waives any complaint about the trial court’s actions.” Wilner v. Quijuano,

No. 01-11-00322-CV, 2012 WL 531147, at *3 (Tex. App.—Houston [1st Dist.] Oct.

25, 2012, no pet.) (mem. op.). (holding attorney did not preserve error with trial

court’s sua sponte decision to impose sanction upon him because trial court had no

opportunity to correct alleged error). Powell never objected to the form of the

sanctions order and the record does not reflect that he made Judge Brown “aware of

his complaint” about its form. TEX. R. APP. P. 33.1(a). This issue is not preserved for

our review.

Even if the issue had been preserved for our review, any alleged error with the

form of the order is not reversible error. “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 the case to the court of appeals.” TEX. R. APP. P. 44.1 (“Reversible Error

8 in Civil Cases”). Powell has not shown that an error, if any, in the wording of the

sanctions order harmed him. The trial court stated on the record that Powell was

sanctioned because he “brought this motion in bad faith” and Powell’s brief states

that he was sanctioned “for filing a motion to recuse [the trial court judge].”

Powell argues that the court erred because the order needed the word “filed,”

and the court crossed it out. The crossed out “filed” is the second instance of that

word in the same sentence. Therefore, the word “filed” still appears. Reading the

remaining language of the order, the court ruled that “the Motion to Recuse the Trial

Judge filed by Catherine Molloy and her counsel, Frank C. Powell, was groundless

and in bad faith.” (emphasis added). Even if he had preserved the issue for appeal,

Powell has not shown that he was harmed by any alleged deficiency in the wording

of the sanctions order.

2. Sufficiency of the Evidence Supporting Sanctions

To the extent Powell challenges the sufficiency of the evidence to support

sanctions against him, the trial court did not abuse its discretion in awarding

sanctions because the record demonstrates that Powell filed his recusal motion in

bad faith. TEX. R. CIV. P. 18a(h)(1). A party acts in bad faith when it makes factual

allegations that a reasonable inquiry would have disproven. See McLaurin v.

McLaurin, No. 01-14-00710-CV, 2016 WL 3023020, at *15 (Tex. App.—Houston

[1st Dist.] May 26, 2016, pet. denied) (mem. op.) (analyzing sufficiency to support

9 sanctions for filing pleading in bad faith under Texas Rule of Civil Procedure 13).

Powell’s allegations against the trial court, including that the trial court engaged in

ex parte communications and engaged in criminal conduct, could have been

disproven with reasonable inquiry, such as a call to the district court clerk’s office,

a call to opposing counsel, or filing a motion in the trial court. Moreover, despite

being confronted at the recusal hearing with evidence confirming his extreme

accusations were incorrect, Powell continued to argue before the recusal judge that

the trial court and clerk’s office had engaged in criminal behavior. To the extent

Powell argues that the evidence is insufficient to support an award of sanctions, the

trial court did not abuse its discretion in sanctioning Powell for filing a motion to

recuse in bad faith. TEX. R. CIV. P. 18a(h).

Rule 45 Damages

The Fletchers request this Court impose sanctions against Powell for bringing

a frivolous appeal. See TEX. R. APP. P. 45. Powell did not file a response to the

request.

Texas Rule of Appellate Procedure 45 provides:

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. In determining whether to award damages, the court must not consider any matter that does not appear in the record, briefs, or other papers filed in the court of appeals.

10 TEX. R. APP. P. 45. We must exercise our discretion to impose Rule 45 damages with

prudence, caution, and only after careful consideration. Deaner v. Marchese, No.

02-03-0029-CV, 2004 WL 177480, at *1 (Tex. App.—Fort Worth Jan. 29, 2004, no

pet.) (mem. op.) (citing Casteel-Diebolt v. Diebolt, 912 S.W.2d 302, 306 (Tex.

App.—Houston [14th Dist.] 1995, no writ)); Dyson Descendant Corp. v. Sonat Expl.

Co., 861 S.W.2d 942, 952 (Tex. App.—Houston [1st Dist.] 1993, no writ). “We

impose sanctions only under circumstances we find truly egregious.” Byrd v. Hutton,

No. 05-19-01191-CV, 2020 WL 4013150, at *6 (Tex. App.—Dallas July 16, 2020,

pet. denied) (mem. op.) (citing D Design Holdings, L.P. v. MMP Corp., 339 S.W.3d

195, 205 (Tex. App.—Dallas 2011, no pet.). We review the record from the

appellant’s point of view at the time the appeal was taken and decide whether he had

any reasonable grounds to believe the case would be reversed. Smith v. Brown, 51

S.W.3d 376, 381 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). “We will not

permit spurious appeals, which unnecessarily burden parties and our already

crowded docket, to go unpunished.” Bradt v. West, 892 S.W.2d 56, 79 (Tex. App.—

Houston [1st Dist.] 1994, writ. denied).

Although Rule 45 does not provide a method for determining an amount of

“just damages,” courts exercising their discretion in awarding damages have

generally relied on proof by testimony or affidavit. See, e.g., Smith v. Marshall B.

Brown, P.C., 51 S.W.3d 376, 381–82 (Tex. App.—Houston [1st Dist.] 2001, pet.

11 denied) (awarding sanctions proven by affidavit). On the other hand, some courts

have awarded damages in situations in which no evidence of damages as the basis

for the award was provided to the courts. See Lee v. Aurora Loan Servs., L.L.C., No.

06-08-00077-CV, 2009 WL 167067, at *3 (Tex. App.—Texarkana Jan. 27, 2009, no

pet.) (mem. op.) (awarding $7,500); Njuku v. Middleton, 20 S.W.3d 176, 178 (Tex.

App.—Dallas 2000, pet. denied) (awarding $5,000.00 per frivolous appeal); Salley

v. Houston Lighting & Power Co., 801 S.W.2d 230, 232 (Tex. App.—Houston [1st

Dist.] 1990, writ denied) (awarding $6,000); Rosenthal v. Nat’l Terrazzo Tile &

Marble, Inc., 742 S.W.2d 55, 57 (Tex. App.—Houston [14th Dist.] 1987, no writ)

(awarding $2,500.00).

We find this situation and Powell’s actions concerning the appeal particularly

egregious. In its September 3, 2020 order, the trial court made the following

findings:

• Powell had no authority to initiate, file briefs, file motions, or otherwise participate in this appeal.

• Molloy instructed Powell to dismiss the appeal and he refused.

• The instruction from Molloy to dismiss the appeal should not have been necessary because Powell never had authority to file the appeal.

• This appeal is clearly groundless and frivolous, and no reasonable attorney could fail to conclude that this court would uphold the trial court’s ruling.

• The appellate briefing in this case was groundless because the issue was not preserved for lack of objection to the form of the order.

12 • The appeal was brought in bad faith and includes several false accusations against the Harris County District Clerk’s Office, the trial court, and opposing counsel, including accusations of ex parte communications and manipulation of government documents.

• Appellees were injured by the frivolous proceedings because their attorneys expended time and expense on frivolous appeals.

We agree. Powell’s conduct was egregious, and this appeal was frivolous,

brought in bad faith, and intended to delay and harass the appellees.

During the 2020 hearing regarding Powell’s authority to represent Molloy, the

parties stipulated to the Fletchers’ counsel’s calculation of attorney’s fees. In July

2022, the trial court ordered Powell to pay the appellate attorney’s fees to which the

parties stipulated at the August 2020 hearing. Powell appeals that order by separate

cause number.3

Given the fact that the trial court has already imposed more than $500,000 in

sanctions against Powell, we decline to add additional sanctions. TEX. R. APP. P. 45

(stating court “may” award sanctions for frivolous appeals).

3 No. 01-22-00640-CV, Frank C. Powell and Evans Powell PLLC v. Kevin Fletcher and Steven Fletcher 13 Conclusion

We affirm the judgment of the trial court. All pending motions are denied.

Judgment is rendered against the sureties on the appellant’s supersedeas bond for the

performance of the judgment and for costs rendered against appellant. See TEX. R.

APP. P. 43.5.

Peter Kelly Justice

Panel consists of Justices Kelly, Landau, and Farris.