Michael David Bellow Jr. v. Leeann McQuade

• Court: Court of Appeals of Texas
• Decided: December 21, 2017
• Docket: 09-16-00165-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

_________________

NO. 09-16-00165-CV _________________

MICHAEL DAVID BELLOW JR., Appellant

V.

LEEANN MCQUADE, Appellee ________________________________________________________________________

On Appeal from the 172nd District Court Jefferson County, Texas Trial Cause No. E-198,048 ________________________________________________________________________

MEMORANDUM OPINION

On February 5, 2016, the trial court signed an Order on Motion to Vacate Ex

Parte Temporary Restraining Order, Motion to Dismiss for Lack of Jurisdiction and

Motion for Sanctions, whereby the trial court dismissed an Ex Parte Temporary

Restraining Order and sanctioned Appellant, Michael David Bellow Jr. in the

amount of $3,000.00, from which Bellow appeals. In two issues, Bellow complains

of lack of notice of the hearing and sanctions imposed against him, and that the trial

1 court abused its discretion by entering the order vacating the ex parte temporary

restraining order and entering sanctions after he had effectively nonsuited the entire

cause of action.

Background

On January 26, 2016, Appellant, Michael David Bellow Jr., acting pro se, filed

a verified petition for an ex parte emergency temporary restraining order and

temporary injunction seeking to enjoin Leeann McQuade, DDS and Children’s

Dentistry of Beaumont from performing a non-emergency, invasive dental

procedure which required intravenous sedation by an anesthesiologist on Bellow’s

three year old son, M.D.B.1 Bellow alleged the procedure was without his parental

consent. Bellow alleged that he conveyed his unwillingness to consent to the dentist

and was told that the procedure would proceed without his consent on the following

day. The trial court signed an Ex Parte Temporary Restraining Order on that same

day, setting a hearing for a temporary injunction for February 3, 2016.

The following day, on January 27, 2016, C.H., the estranged wife and mother

of the child, M.D.B., sought to intervene in the lawsuit and filed her Motion to

Vacate Ex Parte Temporary Restraining Order, Motion to Dismiss for Lack of

1 To protect the identity of the minor, we use the initials for the child and the child's mother. See Tex. R. App. P. 9.8(b)(2). 2 Jurisdiction and Motion for Sanctions, as well as a Motion to Show Cause. C.H.

asserted that a family law court of Hardin County, wherein a suit for divorce and

conservatorship of the child was pending, had exclusive jurisdiction of the subject

matter and parties. Furthermore, C.H. alleged that Bellow personally served the

signed Ex Parte Temporary Restraining Order upon the dentist instead of having

proper service by an authorized process server. Finally, C.H. alleged that Bellow

intentionally misled the trial court regarding the underlying facts surrounding the

dental procedure, and C.H. represented to the trial court that Bellow had been

sanctioned on more than one occasion in the divorce action and requested the court

to enter sanctions against Bellow in the underlying suit. The trial court signed an

Order to Appear and Show Cause ordering Bellow to appear before the court on the

following day, January 28, 2016, at 2:30 p.m.

On January 28, 2016, prior to the show cause hearing, Bellow filed his Motion

to Withdraw Petition for Temporary Injunction, Motion to Strike Hearing, and

Motion to Rescind Emergency Temporary Restraining Order. Additionally, Bellow

simultaneously filed pleadings, among other things, objecting to the lack of notice

for the show cause hearing and request for sanctions.

At the show cause hearing, Bellow again voiced his objection to the hearing

or consideration by the court of the intervention or motion for sanctions for lack of

3 notice. He represented to the court that he had only been served with the pleadings

and Show Cause Order on the evening before the hearing, and he had inadequate

time to prepare and respond to the allegations being lodged against him.

At the conclusion of the hearing, the trial court granted the motion to vacate

the ex parte temporary restraining order and the motion to dismiss for lack of

jurisdiction. Further, the court pronounced that it was assessing sanctions against

Bellow in the amount of $3,000.00 to “put a stop to what you’re doing in terms of

all these filings.” On February 5, 2016, the trial court signed the Order on Motion to

Vacate Ex Parte Temporary Restraining Order, Motion to Dismiss for Lack of

Jurisdiction and Motion for Sanctions, from which this appeal follows.

Issues

Bellow complains that the trial court abused its discretion when it went

forward with the hearing and signed the Order on Motion to Vacate Ex Parte

Temporary Restraining Order, Motion to Dismiss for Lack of Jurisdiction and

Motion for Sanctions after Bellow had filed pleadings withdrawing his pleadings

and effectively nonsuiting the entire cause of action. “A plaintiff has an absolute

right to nonsuit a claim before resting its case-in-chief[.]” CTL/Thompson Tex., LLC

v. Starwood Homeowner’s Ass’n, Inc., 390 S.W.3d 299, 300 (Tex. 2013). But a

nonsuit “shall not prejudice the right of an adverse party to be heard on a pending

4 claim for affirmative relief[,]” such as a motion for sanctions. Tex. R. Civ. P. 162.

To hold otherwise would defeat the purpose of sanctions. CTL/Thompson Tex., 390

S.W.3d at 300. As C.H. had filed her intervention and motion for sanctions prior to

Bellow filing the nonsuit, the motion for sanctions survives Bellow’s nonsuit.

Bellow also complains of the trial court issuing sanctions against him without

sufficient prior notice. Bellow preserved this issue by filing pleadings before the

hearing objecting to the lack of notice and objecting again at the hearing to the lack

of notice.2 While Bellow may have been referring to inadequate time procedurally

to prepare for such hearing, due process also requires prior substantive notice before

a court may sanction a party.

C.H.’s motion for sanctions does not expressly state the legal basis on which

she was seeking sanctions. C.H. alleged in her motion for sanctions that

Bellow has a history of lying and playing games with the judicial system. On three occasions in the divorce litigation[,] the Court sanctioned him for discovery abuse and assessed attorney’s fees. On a third occasion, the Court made a finding of spoliation of evidence.

2 Texas Rule of Civil Procedure 21 provides that notice of any hearing shall be served upon the adverse party not less than three days before any hearing, unless otherwise provided by the rules or shortened by the court. Tex. R. Civ. P. 21 (emphasis added). The trial court has discretion to shorten the three-day notice provision, and the trial court’s action will not be disturbed except on a showing of an abuse of discretion. Petitt v. Laware, 715 S.W.2d 688, 690 (Tex. App.—Houston [1st Dist.] 1986, writ ref’d n.r.e.). 5 Because [Bellow] intentionally misled this Court, Intervenor asks that [Bellow] be made to pay $2,500.00 in attorney’s fees and this Court assess any other sanctions allowable by law.

C.H.’s motion makes no mention of Chapter 10 of the Texas Civil Practice and

Remedies Code, Rule 13 of the Texas Rules of Civil Procedure or the trial court’s

inherent power to sanction. However, from the transcript of the hearing and the

wording of the trial court’s order, it is clear that the trial court sanctioned Bellow for

his “actions and dishonesty with the Court, both verbally and in his Verified

Pleadings[,]” relying, at least in part, upon the inherent power of the court to impose

sanctions.

We review the trial court’s imposition of sanctions under an abuse-of-

discretion standard. Kings Park Apts., Ltd. v. Nat’l Union Fire Ins. Co., 101 S.W.3d

525, 540 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (applying abuse-of-

discretion standard to review Rule 13 sanction award made pursuant to court’s

inherent power); Gaspard v. Beadle, 36 S.W.3d 229, 239 (Tex. App.—Houston [1st

Dist.] 2001, pet. denied) (reviewing trial court’s award of sanctions under abuse-of-

discretion standard); Finlay v. Olive, 77 S.W.3d 520, 524 (Tex. App.—Houston [1st

Dist.] 2002, no pet.) (determining whether the trial court abused its discretion in

awarding sanctions under Chapter 10). The test for determining if the trial court

6 abused its discretion is whether the trial court acted without reference to any guiding

rules or principles. Koslow’s v. Mackie, 796 S.W.2d 700, 704 (Tex. 1990).

The due process clause of the United States Constitution limits a court’s power

to impose sanctions. In re Bennett, 960 S.W.2d 35, 40 (Tex. 1997) (orig.

proceeding); Greene v. Young, 174 S.W.3d 291, 298 (Tex. App.—Houston [1st

Dist.] 2005, pet. denied). Likewise, the due course of law provision in article I,

section 19 of the Texas Constitution limits the power to impose sanctions. Tex.

Const. art. I § 19. For these reasons, imposing sanctions requires the party who is

subject to being sanctioned to be given “notice reasonably calculated, under the

circumstances, to apprise interested parties of the pendency of the action and afford

them the opportunity to present their objections.” In re L.A.M. & Assocs., 975

S.W.2d 80, 83 (Tex. App.—San Antonio 1998, no pet.) (quoting Peralta v. Heights

Med. Ctr., Inc., 485 U.S. 80, 84 (1988)).

The relevant sources for the sanctions imposed in this case—Rule 13, Chapter

10, and the inherent power of the court—each expressly requires that notice be given

to the party who was sanctioned. Tex. Civ. Prac. & Rem. Code Ann. § 10.003 (West

2017); Tex. R. Civ. P. 13. When a party or attorney violates Rule 13, the court shall

impose sanctions on a motion or on the court’s own initiative, “after notice and

hearing.” Tex. R. Civ. P. 13. With regard to Chapter 10 sanctions, section 10.003

7 provides that “[t]he court shall provide a party who is the subject of a motion for

sanctions under Section 10.002 notice of the allegations and a reasonable

opportunity to respond to the allegations.” Tex. Civ. Prac. & Rem. Code Ann. §

10.003. “The traditional due process protections of notice and hearing are also

required before a trial court can impose sanctions on a party pursuant to its inherent

power to sanction.” Greene, 174 S.W.3d at 298 (citing Kutch v. Del Mar Coll., 831

S.W.2d 506, 511 (Tex. App.—Corpus Christi 1992, no writ)).

In obtaining the ex parte Temporary Restraining Order, Bellow represented to

the trial court that he did not consent to the dental procedure on his son. While C.H.

produced evidence at the hearing to show that Bellow had communicated his

willingness to consent to the procedure if C.H. agreed to certain conditions, it was

not clear from the record whether C.H. had agreed to all of Bellow’s proposal. In

seeking sanctions against Bellow, C.H. represented to the trial court that the family

law court in Hardin County had exclusive continuing jurisdiction over the parties

and child. However, during the show cause hearing, C.H. admitted under cross-

examination and counsel for C.H. stipulated on the record that only temporary orders

had been entered by the family law court in Hardin County and such orders named

C.H. and Bellow as joint managing conservators of their son, M.D.B., with

8 independent equal rights.3 Thus, on the record before the trial court at the show cause

hearing, C.H. failed to establish that any other court had continuing exclusive

jurisdiction of the parties or subject matter of the petition that Bellow filed.

C.H. argued to the trial court that Bellow had been sanctioned at least three

times in the Hardin County divorce action. However, C.H.’s pleading failed to put

Bellow on notice that his previous conduct in the pending divorce case in Hardin

County would be considered as conduct that justified imposing sanctions on Bellow

regarding the restraining order he obtained against the dentist. While C.H.’s motion

asked the trial court to assess “any other sanctions allowable by law,” the motion

failed to give Bellow fair notice of the basis for the sanctions that C.H. sought to

enable Bellow to mount an adequate defense. A court is not authorized to grant

sanctions under a statute or rule that is not identified in the motion for sanctions. See

Greene, 174 S.W.3d at 301 (holding trial court erred in imposing sanctions on

grounds that were not pleaded). C.H.’s pleading does not refer to Chapter 10, Rule

13 or the court’s inherent power to sanction.4 Further, the trial court did not notify

3 Section 155.001 of the Texas Family Code provides that a court acquires continuing, exclusive jurisdiction over the subject matter and parties in connection with a child only on the rendition of a final order. 4 We recognize that a court can assess sanctions based on its inherent authority sua sponte, without a motion from a party. Nevertheless, the court must provide notice to the party that it intends to rely on its inherent authority to sanction to allow 9 Bellow prior to the hearing that it intended to sanction him sua sponte under its

inherent power. The motion for sanctions must provide notice of the conduct that the

movant seeks to sanction so that the respondent may attempt to prepare a defense.

See id. at 299–300 (holding that the family court improperly sanctioned appellants

for their statements made at the bankruptcy court hearings because appellants had

no notice that such conduct was under consideration for sanctions); Mann v. Kendall

Home Builders Constr. Partners I, Ltd., 464 S.W.3d 84, 93 (Tex. App.—Houston

[14th Dist.] 2015, no pet.) (holding that a trial court may not award Rule 13 sanctions

on a basis not asserted in the motion). Thus, from the record before us, we conclude

that Bellow was denied adequate substantive notice of the legal or factual theories

that served as the basis of the trial court’s order. See Greene, 174 S.W.3d at 299–

300, n.4 (reversing sanctions order of the trial court because the court relied on

grounds not included in the notice and stating that “the court must provide notice to

the party that it intends to rely on its inherent authority to sanction to allow the party

to prepare a defense”).

the party to prepare a defense. See Kutch v. Del Mar Coll., 831 S.W.2d 506, 511 (Tex. App.—Corpus Christi 1992, no writ). 10 Conclusion

It is undisputed that Bellow received less than twenty four hours’ notice of the

show cause hearing. At the time of the hearing, the only remaining issue before the

trial court was the motion for sanctions, as Bellow nonsuited the remaining issues

and causes of action prior to the hearing. Because the Motion for Sanctions failed to

provide Bellow adequate notice of his allegedly sanctionable conduct, and because

Bellow had no notice that the trial court intended to sanction him based on its

inherent authority, we hold that the trial court abused its discretion by imposing

sanctions at the show cause hearing that occurred on January 28, 2016. We reverse

that part of the Order on Motion to Vacate Ex Parte Temporary Restraining Order,

Motion to Dismiss for Lack of Jurisdiction and Motion for Sanctions of February 5,

2016, which imposed sanctions against Bellow, and we remand the case to the trial

court for further proceedings as may be required. We affirm the remainder of the

trial court’s order dismissing the entire cause of action.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART.

________________________________ CHARLES KREGER Justice Submitted on October 10, 2017 Opinion Delivered December 21, 2017

Before McKeithen, C.J., Kreger and Horton, JJ. 11