Robert Holeman Twist v. McALLEN NATIONAL BANK

• Court: Court of Appeals of Texas
• Decided: December 5, 2007
• Docket: 13-06-00638-CV
• Status: Published

Opinion

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

NUMBER 13-06-638-CV

ROBERT HOLEMAN TWIST, Appellant,

v.

MC ALLEN NATIONAL BANK, Appellee.

NUMBER 13-07-105-CV

IN RE: ROBERT HOLEMAN TWIST

On petition for writ of mandamus and on appeal from the 92nd District Court of Hidalgo County, Texas.

OPINION

Before Justices Yañez, Garza, and Vela 1 Opinion by Justice Yañez

1 The Honorable Rose Vela concurs in the result only, without separate opinion. Robert H. Twist filed an appeal2 and a mandamus3 proceeding arising from

orders issued by the trial court in cause number C-3690-99-A.4 We have

consolidated the appeal and mandamus proceeding for purposes of briefing and oral

argument. Appellees/Real Parties-in-Interest have moved to dismiss the appeal and

the mandamus proceeding and are seeking sanctions as a result of both

proceedings. As discussed below, we dismiss the appeal, deny the mandamus

petition, and grant Real Parties’ Motions for Sanctions under Texas Rule of

Appellate Procedure 52.11.5 No motion for rehearing in either the appeal or the

mandamus proceeding will be entertained, nor will any further proceedings in this

Court arising from trial court cause number C-3690-99-A.

I. BACKGROUND

This case has a long and arduous history. We will begin with a history of the

litigation and a discussion of the proceedings before this Court.

A. Trial court cause no. C-3690-99-A’s origin

In 1995, appellant/relator Robert H. Twist recovered a personal injury

settlement for $175,000.00, which he deposited into an account at McAllen National

2 Twist v. McAllen Nat’l Bank, et al., appellate cause num ber 13-06-638-CV.

3 In re Twist, appellate cause num ber 13-07-105-CV. Respondent is Hon. Ricardo Rodriguez, Jr., presiding judge of the 92nd District Court of Hidalgo County, Texas.

4 Norm ally we need not reference the trial court’s cause num ber in the body of an opinion. However, Robert H. Twist has filed num erous lawsuits and appellate proceedings arising out of the sam e set of facts. The m ultiplicity of Twist’s actions rem ind this Court of the m ulti-headed m onster from Greek m ythology, the Lernaean hydra: cut off a head, and several heads grow back in its place. W e wish to m ake absolutely clear which litigation we are addressing because we intend this opinion to com pletely dispose of the hydra and all its heads.

5 T EX . R. A PP . P. 52.11.

2 Bank (the “Bank”). At the time, Twist was married to Brenda Griggs, but he

allegedly instructed the Bank not to distribute any funds from the account to her

without his prior approval. Griggs transferred the money out of the account and then

filed for divorce. Griggs later filed for Chapter 13 Bankruptcy on March 1, 1999, in

the United States District Court for the Northern District of Texas, Dallas Division.

On July 12, 1999, after Griggs was already in bankruptcy, Twist brought suit

against the Bank in Hidalgo County District Court, trial court cause number C-3690-

99-A, seeking to recover the funds. The Bank filed a third-party action against

Griggs seeking contribution and indemnity. Griggs filed an answer, but she did not

notify the parties that she was under the protection of the automatic bankruptcy stay.

B. Twist agrees to settle with the Bank, but later he purports to revoke his consent.

On October 9, 2000, Twist and the Bank agreed to settle the case for

$75,000.00. Twist and the Bank appeared before the trial court and dictated their

settlement agreement into the record.6 Twist consented to the settlement under

oath on the record. However, the trial court did not enter a judgment at that time.

On November 21, 2000, the parties appeared again before the trial court.

Twist was sworn and stated under oath that he was revoking his consent to the

settlement. Twist stated that he objected to the settlement because the Bank’s

proposed settlement agreement did not admit liability and contained indemnity

language. The Bank stated that it intended to seek enforcement of the settlement

agreement. However, no judgment was entered at that time.

6 See T EX . R. C IV . P. 11.

3 C. The Bank orally moves to enforce the settlement agreement, and the trial court dismisses Twist’s claims with prejudice.

On January 19, 2001, the parties again came before the trial court for a

status conference. At the hearing, the Bank made an oral motion to enforce the

settlement agreement. Twist’s attorney did not object to the Bank’s use of an oral

motion to enforce the settlement agreement, nor did he object to lack of notice that

the court would hear such a motion. The Bank’s attorney represented that the Bank

had tendered the money to Twist. Nevertheless, Twist again stated that he was

revoking his consent to the settlement agreement. The court asked the parties to

submit proposed orders.

That same day, the court issued an “Order Enforcing Settlement Agreement,”

dismissing Twist’s claims with prejudice. It stated that the Bank had moved to

enforce the settlement agreement, that the court considered the transcript of the

Rule 11 agreement, and that Twist had untimely revoked his consent to the

agreement by revoking it after the court had already approved the settlement.

Twist sought reconsideration of the January 19, 2001 order dismissing his

claims with prejudice, but the trial court denied the motion. According to the docket

sheet, there were some motions filed seeking distribution of the settlement funds,

although these motions are not contained in the mandamus record, and it is not

clear what relief was sought or why. The trial court held a hearing on October 11,

2001. At that hearing, Twist admitted to the court that he had received the

settlement check and had cashed it. The trial court orally stated that the case would

be dismissed, even though the court had already dismissed all of Twist’s claims with

4 prejudice. On April 29, 2002, the trial court issued a second order dismissing Twist’s

claims with prejudice. Twist did not immediately appeal either of the orders

dismissing his claims with prejudice.

D. Griggs is discharged from bankruptcy, and Twist seeks appellate review (the “Twist I appeal”).

Almost two years later, on April 6, 2004, Griggs was discharged from

bankruptcy. Shortly thereafter, on May 3, 2004, Twist filed an appeal from the April

29, 2002 order (the “Twist I appeal”).7 This Court held that Twist’s notice of appeal

had been due on May 29, 2002 (thirty days from the April 29, 2002 order) but was

not filed until May 3, 2004.8 Thus, the appeal was untimely.9 Twist also failed to pay

the filing fee.10 We notified Twist of these defects, which he failed or was unable to

cure.11

This Court dismissed the appeal because of Twist’s failure to comply with the

appellate rules.12 We noted that Twist had sent a letter stating his opinion that the

April 29, 2002 order was interlocutory, but we did not express any opinion on that

issue.13

7 Twist v. McAllen Nat’l Bank, No. 13-04-613-CV, 2005 Tex. App. LEXIS 5226, at *1 (Tex. App.–Corpus Christi July 7, 2005, no pet.) (per curiam ).

8 Id.

9 Id.

10 Id.

11 Id. at *1-2.

12 Id. at *2.

13 Id. at *1-2.

5 E. Twist attempts to resurrect his claims in the trial court.

On the same day that Twist filed his appeal with this Court, he filed an

“amended” petition in the trial court. He attempted to add the Bank’s lawyers as

defendants: the firm of Kittleman, Thomas, & Gonzales, L.L.P., and its named

partners, Ray Thomas and Veronica Gonzales (“Kittleman”). Twist alleged against

the Bank and these additional defendants the same claims that were previously

dismissed with prejudice.

Twist argued that the trial court still had jurisdiction over the case because

the orders dismissing his claims against the Bank with prejudice were not final

orders. Specifically, Twist argued that because any claims against Griggs were

subject to the bankruptcy stay, the trial court’s orders dismissing his claims had no

effect on the Bank’s third-party claim against Griggs. He reasoned that because the

Bank’s claim against Griggs remained pending, the trial court retained jurisdiction

over the case.

F. The defendants file pleas to the jurisdiction, which the trial court grants, and Twist seeks mandamus relief (“Twist I mandamus”).

The Bank and Kittleman filed pleas to the jurisdiction, asserting that the trial

court’s plenary power had long since expired. They argued that Griggs was never

a party to the lawsuit because any filing against her during the pendency of the

bankruptcy stay was merely a void act. Thus, the orders dismissing Twist’s claims

were final orders, and the trial court’s plenary power had expired. Alternatively, the

Bank and Kittleman argued that the trial court’s order disposing of Twist’s claims

also disposed of their third-party claim by implication.

6 The trial court granted the Bank and Kittleman’s pleas to the jurisdiction and

struck Twist’s “pleadings” on October 4, 2004. On December 14, 2004, Twist

sought a writ of mandamus (the “Twist I mandamus”), seeking to compel the trial

court to vacate its order granting the pleas to the jurisdiction. He asserted that there

was not a final order because Griggs was never nonsuited or severed from the case,

and the orders enforcing the settlement agreement did not dispose of that claim

during the pendency of the bankruptcy stay. We denied mandamus relief on

December 21, 2004, without an opinion on the merits.14

G. Twist persists in the trial court despite giving up his appeal and losing in the mandamus proceeding.

Notwithstanding this Court’s denial of mandamus relief and the untimely

attempt to appeal, Twist refused to give up. Twist filed motions on September 19,

2006 and October 12, 2006, asking the trial court to declare its previous orders void.

He argued that the orders enforcing the settlement agreement were void because

(1) he did not consent to the settlement, (2) the Bank did not file any pleading to

support an action to enforce the settlement, and (3) he did not have any notice of

the Bank’s intent to enforce the settlement agreement. Alternatively, he argued that

the orders were interlocutory because they did not dispose of the Bank’s claims

against Griggs (the same arguments rejected by the trial court and this Court). The

trial court denied these motions on November 8, 2006.

H. Twist again seeks relief from this Court in the current proceedings (“Twist II appeal” and “Twist II mandamus”).

14 In re Twist, No. 13-04-0660-CV, 2004 Tex. App. LEXIS 11546, at *1 (Tex. App.–Corpus Christi, Dec. 21, 2004, orig. proceeding) (m em . op.).

7 Still undeterred, Twist filed a second round of proceedings with this Court

seeking review. First, he filed a notice of appeal on November 14, 2006, seeking

review of the trial court’s November 8, 2006 order; the appeal was docketed as

appellate cause number 13-06-00638 (the “Twist II appeal”). The clerk of this Court

sent Twist a letter, stating that there appeared to be no final order that would confer

jurisdiction on the Court. Twist responded that he agreed and would be filing a writ

of mandamus. Twist never filed a brief in the appeal.

Second, Twist filed a mandamus petition, docketed as appellate cause

number 13-07-0105-CV (the “Twist II mandamus”). This petition is almost identical

to the Twist I mandamus petition. First, Twist argues that the January 19, 2001 and

April 29, 2002 orders enforcing the settlement agreement are void because the

Bank did not file a pleading with the trial court asserting a claim for breach of

contract. Second, he argues that the January 19, 2001 and April 29, 2002 orders

are void because they impliedly disposed of the Bank’s claim against Griggs while

Griggs was in bankruptcy. Third, he argues that these orders were interlocutory

because they did not dispose of the third-party action against Griggs. Therefore, he

claims that the trial court’s plenary power did not expire and that the trial court had

jurisdiction over his amended petition.

I. The Bank and Kittleman file motions to dismiss and for sanctions in the appellate proceedings, and this Court orders Twist to show cause.

The Bank filed a motion to dismiss and for sanctions in the Twist II appeal,

asserting that the appeal is frivolous and filed solely for the purpose of delay and

harassment. The Bank seeks $78,659.50 in attorney’s fees, and the motion is

8 supported by an affidavit stating that this is the amount of reasonable and necessary

attorney’s fees that it has incurred since 2004.

On March 14, 2007, this Court issued an order requiring Twist and his

counsel, Mr. Stephen T. Leas, to show cause why they should not be sanctioned.

In that order, we consolidated the appeal and the mandamus for purposes of

briefing and oral argument and set the matter for hearing on April 4, 2007. Twist

filed a response to the Bank’s motion for sanctions. The Bank then filed a reply in

both the appeal and the mandamus proceeding, reasserting its arguments in favor

of sanctions.

Kittleman moved for sanctions on April 3, 2007. This motion was filed after

this Court issued its show cause order and set a hearing on the Bank’s motion for

sanctions and to dismiss the appeal.15 The Kittleman motion adopts the Bank’s

motion for sanctions and reply brief by reference. In addition, Kittleman asks that

this Court construe the Bank’s motion for sanctions as one under both Texas Rule

of Appellate Procedure 45 (applicable to frivolous appeals) and under Texas Rule

of Appellate Procedure 52.11 (sanctions in original proceedings). Kittleman asks

for reasonable and necessary attorney’s fees in the amount of $15,000.00 incurred

since May 2004, which were supported by an affidavit by Raymond Cowley.

The parties appeared before this Court and presented arguments on the

sanctions motions on April 4, 2007.

II. TWIST II MANDAMUS

15 At the hearing on the order to show cause, Twist’s counsel waived any further notice or right to have a separate hearing to show cause.

9 We will address the merits of the mandamus petition first because it is fully

briefed. To obtain mandamus relief, the relator must demonstrate that the trial court

clearly abused its discretion and that the relator has an inadequate remedy by

appeal.16

A trial court abuses its discretion if “it reaches a decision so arbitrary and

unreasonable as to amount to a clear and prejudicial error of law.”17 With respect

to matters committed to the trial court’s discretion, the relator must demonstrate that

the trial court could have only reached one conclusion.18 The reviewing court cannot

disturb the trial court’s ruling unless it is shown to be arbitrary and unreasonable.19

“On the other hand, review of a trial court's determination of the legal principles

controlling its ruling is much less deferential. A trial court has no ‘discretion’ in

determining what the law is or applying the law to the facts.”20 If the trial court

clearly fails to analyze or apply the law correctly, such failure will constitute an abuse

of discretion.21

The relator must also show that his or her appellate remedy is inadequate.22

The Texas Supreme Court has explained that this element requires a practical and

16 In re Prudential Ins. Co. of Am., 148 S.W .3d 124, 135-36 (Tex. 2004).

17 W alker v. Packer, 827 S.W .2d 833, 839 (Tex. 1990) (quoting Johnson v. Fourth Court of Appeals, 700 S.W .2d 916, 917 (Tex. 1985)).

18 Id. at 840.

19 Id.

20 Id.

21 Id.

22 In re Prudential, 148 S.W .3d at 136.

10 prudential analysis, requiring consideration of both public and private interests.23

“An appellate remedy is ‘adequate’ when any benefits to mandamus review are

outweighed by the detriments. When the benefits outweigh the detriments,

appellate courts must consider whether the appellate remedy is adequate.”24

However, the Supreme Court has also held that where the trial court issues a void

order, the relator need not show that an appellate remedy is inadequate to obtain

mandamus relief.25

Twist raises several arguments that he contends result in a live proceeding

currently before the trial court, over which the trial court refused to recognize

jurisdiction. First, he argues that the trial court’s judgments enforcing the settlement

agreement are void; thus, the trial court never disposed of his claims. Second, he

argues that, if the order enforcing the settlement agreement is not void, it is

nevertheless an interlocutory order because the Bank’s third-party action against

Griggs was never finally determined. Thus, the trial court erroneously denied that

it had jurisdiction over his claims.

A. Trial court’s jurisdiction to enforce the settlement

Although it is now 2007, Twist still complains of the trial court’s orders from

2001 and 2002 enforcing his settlement with the Bank. He argues that because he

revoked his consent before judgment was rendered, the trial court lacked jurisdiction

to enter an agreed judgment on the settlement agreement. He also argues that the

23 Id.

24 Id.

25 In re Sw. Bell Tel. Co., 35 S.W .3d 602, 605 (Tex. 2000).

11 trial court could not enforce the settlement as a contract because the Bank never

filed a motion to enforce the settlement. He concludes that the trial court’s orders

enforcing the settlement agreement are void; therefore, he is entitled to mandamus

relief to force the trial court to acknowledge jurisdiction over his amended pleading

filed on May 3, 2004.

Twist revoked his consent before judgment was entered. Therefore, Twist

is correct that the trial court did not have authority to enter an agreed judgment.26

If a court purports to render an agreed judgment after consent has been withdrawn,

the judgment is void.27

However, an agreed judgment is different than a judgment enforcing a

settlement agreement.28 The Texas Supreme Court has held that, although a trial

court has no authority to enter an agreed judgment, it can certainly enforce a

settlement agreement even if one party has revoked consent, if there are proper

pleadings and proof to support enforcement.29 The question becomes, then, what

pleadings and proof are sufficient?

Twist argues that a judgment enforcing a settlement agreement is void if

there are no pleadings asserting a cause of action to enforce the agreement. He

apparently asserts that the Bank was required to file a counter-claim alleging breach

26 See Padilla v. La France, 907 S.W .2d 454, 461-62 (Tex. 1995); Ford Motor Co. v. Castillo, 200 S.W .3d 217, 223 (Tex. App.–Corpus Christi 2006, pet. filed); Neasbitt v. W arren, 105 S.W .3d 113, 117 (Tex. App.–Fort W orth 2003, no pet.).

27 W oods v. W oods, 167 S.W .3d 932, 933 & n.2 (Tex. App.–Am arillo 2005, no pet.).

28 Neasbitt, 105 S.W .3d at 117.

29 Padilla, 907 S.W .2d at 461-62.

12 of contract. He asserts that a judgment enforcing a settlement can only be rendered

after a trial on the merits, whether by summary judgment, bench trial, or jury trial.

Because the Bank made an oral motion to enforce the settlement agreement, but

never filed a pleading to support such a cause of action, he reasons that the

judgment enforcing the settlement agreement is void.

For support, in his original petition for writ of mandamus, he quotes alleged

language from the Texas Supreme Court’s decision in Padilla, asserting that the

supreme court held that “if a party seeks to enforce a settlement agreement, it must

invoke the Court’s jurisdiction over the subject matter by filing the proper pleadings,

as in any suit based in contract, and any order entered without proper pleadings is

void.”30 This Court has reviewed the Padilla case numerous times, and this

language does not appear in the Padilla opinion.31 Moreover, this Court has not

located a single case holding that a judgment enforcing a settlement agreement

rendered without supporting pleadings is void, as opposed to voidable.32

Twist’s argument is contrary to the relevant case law and the rules of

procedure relating to motions, waiver of pleading defects, and trial by consent. This

Court has held that a party seeking enforcement of a settlement agreement when

30 In his am ended petition for writ of m andam us in the Twist II mandamus, Twist deleted this citation and quote.

31 See generally Padilla, 907 S.W .2d 454.

32 Cf. Hermida v. Hermida, No. 04-96-00869-CV, 1998 Tex. App. LEXIS 532, at *8-9 (Tex. App.–San Antonio 1998, no pet.) (not designated for publication) (unlike an agreed judgm ent rendered without consent, a judgm ent enforcing a settlem ent agreem ent is not void and subject to collateral attack).

13 consent is revoked must enforce it as a written contract.33 We have stated that this

separate breach of contract claim is subject to the “normal rules of pleading and

proof.”34 We have advised that parties seeking enforcement should assert their

breach of settlement agreement claims in the underlying action while the trial court

still has jurisdiction.35 We have further stated that the claim should be asserted

through an amended pleading or counter-claim.36

Although an amended pleading is the preferred method of raising such a

claim, this Court has also held that a motion to enforce settlement is a sufficient

pleading to allow a trial court to render judgment enforcing the settlement.37 As long

as the motion recites the terms of the agreement, states that the other party has

revoked its previously stated consent to the agreement, and requests the trial court

to grant relief, the motion is sufficient.38 In other words, if the motion satisfies the

general purpose of pleadings, which is to give the other party notice of the claim and

the relief sought, it is sufficient to allow the trial court to render judgment enforcing

the settlement.39

The “normal rules of pleading” include rule 21, which allows oral motions to

33 Citgo Ref. & Mktg., Inc. v. Garza, 94 S.W .3d 322, 330 (Tex. App.–Corpus Christi 2002, no pet.).

34 Id.

35 Id.

36 Id.

37 Castillo, 200 S.W .3d at 224; Neasbitt, 105 S.W .3d at 118.

38 Neasbitt, 105 S.W .3d at 118.

39 Castillo, 200 S.W .3d at 224.

14 be made at a hearing. Rule 21 provides:

Every pleading, plea, motion or application to the court for an order, whether in the form of a motion, plea or other form of request, unless presented during a hearing or trial, shall be filed with the clerk of the court in writing, shall state the grounds therefor, shall set forth the relief or order sought, and at the same time a true copy shall be served on all other parties, and shall be noted on the docket.40

Numerous cases have approved the use of oral motions presented at a hearing or

at trial.41 The oral motion to enforce the settlement was effective to invoke the

court’s power to enforce the agreement provided that the oral motion contained

enough information to allow Twist to meaningfully respond.42

The Bank made an oral motion to enforce the agreement, and the Bank

provided the trial court with the settlement agreement which was dictated into the

40 T EX R. C IV . P. 21 (em phasis added).

41 See EZ Pawn Corp. v. Mancias, 934 S.W .2d 87, 91 (Tex. 1996) (enforcing Rule 11 agreem ent regarding consideration of plaintiff’s evidence based on oral request for enforcem ent m ade at a hearing). The Texas Suprem e Court has held that “[a] trial court m ay entertain a num ber of oral m otions in the course of a trial, but one which disposes of parties to an action, should indeed be in writing and with notice to the parties.” City of Houston v. Sam P. W allace & Co., 585 S.W .2d 669, 673 (Tex. 1979). However, in that case, the City of Houston’s co-plaintiff, Little, settled with the defendant without telling the court or the City. Id. The charge was subm itted to the jury, and without notice to the City, Little shifted his argum ents to assert that the City should not recover against the defendant. Id. W hile the jury was deliberating, and the City’s counsel was out of the courtroom , Little m oved to nonsuit its claim s against the City. Id. The City did not learn about the nonsuit until a week later. Id. On appeal, the suprem e court held that m otions disposing of parties to a case should be in writing so that all parties have notice. Id. However, that is not the case here. As discussed below, we have no trouble concluding that Twist had notice that the Bank was seeking to enforce the settlem ent; Twist and his counsel were present when the m otion was m ade, and Twist’s counsel did not object to any lack of notice.

42 See Palo Pinto County v. Lee, 988 S.W .2d 739, 739-40 (Tex. 1998) (per curiam ) (denying petition for review but disapproving of language that oral m otion to strike was not properly presented during a hearing); see also In re N.S., No. 10-01-319-CV, 2004 Tex. App. LEXIS 1449, at *22 & n.5 (Tex. App.–W aco Feb. 11, 2004, pet. denied) (m em . op.) (holding Rule 21 perm its oral m otions if presented during a hearing); Miller v. Miller, No. 05-02-01903-CV, 2003 Tex. App. LEXIS 8800 (Tex. App.–Dallas Oct. 15, 2003, no pet.) (m em . op.) (“[M]otions are neither required to be preceded by three days' notice nor are they required to be in writing when they are presented during a hearing or trial.”).

15 record. The Bank argued that Twist revoked his previously expressed consent to

the agreement. The Bank requested relief. Thus, the oral motion had all the

necessary elements.43

Even if the oral motion was insufficient, the trial court’s order enforcing the

settlement would not be void. The lack of a pleading or sufficient notice of a hearing

does not make the judgment void. In general, the failure to point out a defect or

omission in pleadings results in a waiver of the objection.44 Additionally, the failure

to object to insufficient notice of a hearing waives the issue.45 Certainly if the issue

can be waived, the judgment cannot be void.

Twist appeared at the status hearing. He did not object to the oral motion,

to the lack of a written pleading, or to the lack of sufficient notice that the court was

considering the Bank’s motion to enforce the agreement. In fact, instead of

objecting, Twist argued his defense to enforcement of the agreement.46 Twist’s

43 Neasbitt, 105 S.W .3d at 118. Moreover, we have no problem concluding that Twist had actual notice that the Bank was seeking to enforce the settlem ent. See Castillo, 200 S.W .3d at 224-25 (holding that trial court’s enforcem ent of settlem ent agreem ent was proper where plaintiffs filed a m otion to enforce, and Ford clearly had actual notice that the plaintiffs were seeking to enforce the settlem ent). On Novem ber 21, 2000, the parties appeared before the trial court. Twist was sworn in and stated under oath that he was revoking his consent to the settlem ent. The Bank stated at that tim e that it intended to seek enforcem ent of the settlem ent agreem ent. Thus, Twist was on notice at least as early as Novem ber 21, 2000 that the Bank was seeking to enforce the settlem ent agreem ent. On January 19, 2001, the parties again cam e before the trial court for a status conference. At the hearing, the Bank m ade an oral m otion to enforce the settlem ent agreem ent. Twist’s attorney did not object to the Bank’s use of an oral m otion to enforce the settlem ent agreem ent, nor did Twist object to lack of notice that the court would hear such a m otion.

44 T EX . R. C IV . P. 90.

45 W alker v. Gonzales County Sherriff’s Dep’t, 35 S.W .3d 157, 160 (Tex. App.–Corpus Christi 2000, pet. denied).

46 T EX . R. C IV . P. 67 (trial by consent occurs when issues not raised by the pleadings are tried without objection).

16 complaints about the procedures followed were waived.

For the foregoing reasons, we hold that the trial court had subject-matter

jurisdiction to render judgment enforcing the settlement agreement; its order was not

void. For the reasons discussed in the following sections, even if we agreed that the

trial court erred in enforcing the settlement agreement, Twist’s complaints are two

years too late.

B. Finality of the order enforcing the settlement

Twist next argues that, if the order enforcing the settlement was not void, it

was nevertheless not a final order disposing of all the parties and claims. Twist

argues the court’s January 19, 2001 and April 29, 2002 orders enforcing the

settlement agreement were interlocutory because they could not and did not dispose

of the Bank’s third-party action against Griggs while Griggs was in bankruptcy.

We agree that a court cannot render a judgment against a debtor in

bankruptcy while a stay is in place. Judgments, including orders dismissing a debtor

from the suit, are void if rendered against a debtor under the protection of a

bankruptcy stay.47 Moreover, a judgment against a debtor’s co-defendants is not a

final, appealable judgment unless the debtor is severed from the action because the

judgment does not dispose of all the parties.48 However, Twist’s mandamus record

demonstrates that his original petition and the Bank’s third-party action were filed

after Griggs was already under the protection of the bankruptcy court. This changes

47 Sanchez v. The Honorable Darrell Hester, 911 S.W .2d 173, 176 (Tex. App.–Corpus Christi 1995, orig. proceeding).

48 Id. at 177; Hood v. Amarillo Nat’l Bank, 815 S.W .2d 545, 547 (Tex. 1991).

17 things significantly.

The bankruptcy stay protects debtors from the commencement or

continuation of an action against them.49 This Court has expressly held that a suit

filed against a debtor already under the protection of a bankruptcy stay is a nullity50

—the trial court does not acquire jurisdiction over an action commenced during the

automatic stay.51 Therefore, the Bank’s third-party action against Griggs while she

was in bankruptcy had no legal effect, and Griggs never became a party to the

action in the trial court.52 The trial court’s order enforcing the settlement dismissing

Twist’s claims against the Bank, whether one considers the final order to be the

January 19, 2001 or the April 29, 2002 order, was not a void order. Rather, it was

a final order that disposed of all parties and claims.53

C. Twist’s pleadings and the trial court’s rulings subsequent to the orders enforcing the settlement

Because the trial court’s orders enforcing the settlement were not void and

constituted a final judgment disposing of all parties and claims, we next determine

49 11 U.S.C. § 362(a)(1); Hood, 815 S.W .2d at 547.

50 Despite the fact that the Bank raised this exact argum ent in its plea to the jurisdiction after Twist tried to resurrect his claim s in 2004, Twist does not m ention this argum ent at all in his m andam us petition, nor does he try to distinguish this Court’s decision in Padrino.

51 Padrino Mar. v. Rizo, 130 S.W .3d 243, 247 (Tex. App.–Corpus Christi 2004, no pet.) (suit filed during stay is “a void action”); see also Lovall v. Chao, No. 01-02-01019-CV, 2005 Tex. App. LEXIS 415, at *7 (Tex. App.–Houston [14th Dist.] Jan. 20, 2005, no pet.) (m em . op.); In re De la Garza, 159 S.W .3d 119, 121 (Tex. App.–Corpus Christi 2004, orig. proceeding) (refusing to resurrect void judgm ent issued during bankruptcy proceedings after bankruptcy proceeding was dism issed); Graham v. Pazos de la Torre, 821 S.W .2d 162, 164 (Tex. App.–Corpus Christi 1991, writ denied).

52 See Padrino, 130 S.W .3d at 247.

53 The Bank and Kittlem an argue alternatively that the trial court’s orders enforcing the settlem ent agreem ent also disposed of the action against Griggs. Because the trial court never acquired jurisdiction over Griggs, we need not discuss these argum ents. T EX . R. A PP . P. 47.1.

18 what effect Twist’s subsequent filings had on the proceedings below. Giving Twist

the benefit of the doubt, and assuming that the April 29, 2002 order enforcing the

settlement was the final order in the case, the trial court’s plenary power expired, at

the latest, on May 29, 2002.54

Absent any post-judgment motions, Twist’s notice of appeal was due on May

29, 2002.55 Twist, however, did not appeal the April 29, 2002 order until May 3,

2004. For this reason, this Court rejected Twist’s first appeal as untimely.56 Twist

sought to amend his pleadings to resurrect his claims and add new defendants on

May 3, 2004, more than two years after the final judgment in the case. Because the

trial court’s jurisdiction had expired, Twist’s amended petition and all of Twist’s later

filings in the trial court were a nullity.57

We recognize that the Bank and Kittleman were put in the untenable position

of choosing to ignore Twist’s filings after the trial court’s plenary power expired or

respond to his improper “pleadings.” In this case, however, the Bank and

Kittleman’s responsive filings were unnecessary, as were the trial court’s rulings on

54 T EX . R. C IV . P. 329b(f); In re Lynd Co., 195 S.W .3d 682, 685 (Tex. 2006) (holding that absent an extension of post-judgm ent deadlines under rule 306a, the trial court’s plenary power expires thirty days after the judgm ent is signed).

55 T EX . R. A PP . P. 26.1.

56 Twist, 2005 Tex. App. LEXIS 5226, at *1.

57 See In re Dickason, 987 S.W .2d 570, 571 (Tex. 1998) (orig. proceeding); see also Chemject Int’l, Inc. v. Sw. Bell Tel. Co., No. 13-06-032-CV and 13-04-567-CV, 2007 Tex. App. LEXIS 586, at *11 (Tex. App.–Corpus Christi Jan. 25, 2007, pet. denied) (m em . op.).

19 Twist’s subsequent filings, because the trial court’s plenary power had expired.58

Accordingly, we deny Twist’s petition for writ of mandamus in cause number 13-07-

00105-CV.

D. Sanctions for conduct in the Twist II mandamus proceeding under Texas Rule of Appellate Procedure 52.11

The Bank and Kittleman have moved for sanctions in cause number 13-07-

0105-CV, alleging that the mandamus petition was groundless and filed in bad

faith.59 We issued an order directing Twist to show cause why he should not be

sanctioned. Recognizing that we must “exercise the discretion afforded us by Rule

52.11 with caution and only after careful deliberation,”60 we find that sanctions are

appropriate for the following reasons.

Texas Rule of Appellate Procedure 52.11 prohibits attorneys from filing

petitions for writ of mandamus in “bad faith:”

On motion of any party or on its own initiative, the court may—after notice and a reasonable opportunity to respond—impose just sanctions on a party or attorney who is not acting in good faith as indicated by any of the following:

(a) filing a petition that is clearly groundless;

(b) bringing the petition solely for delay of an underlying proceeding;

(c) grossly misstating or omitting an obviously important and material fact

58 See State ex rel. Latty v. Owens, 907 S.W .2d 484, 486 (Tex. 1985) (per curiam ) (“Judicial action taken after a cause has expired is a nullity.”); In re E.B.Y., No. 13-07-772-CV, 2007 Tex. App. LEXIS 5352, at *4 (Tex. App.–Corpus Christi July 5, 2007, no pet.) (m em . op) ; Chemject Int’l, Inc., 2007 Tex. App. LEXIS 586, at *11.

59 See T EX . R. A PP . P. 52.11.

60 See In re Lerma, 144 S.W .3d 21, 26 (Tex. App.–El Paso 2004, orig. proceeding).

20 in the petition or response; or

(d) filing an appendix or record that is clearly misleading because of the omission of obviously important and material evidence or documents.61

Texas Disciplinary Rule of Professional Conduct 3.03(a)(1) states that a

lawyer “shall not knowingly . . . make a false statement of material fact or law to a

tribunal.”62 Subsection (a)(4) of that rule provides: “A lawyer shall not

knowingly . . . fail to disclose to the tribunal authority in the controlling jurisdiction

known to the lawyer to be directly adverse to the position of the client and not

disclosed by opposing counsel.”63 The comments expand on the prohibitions:

Legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal. A lawyer is not required to make a disinterested exposition of the law, but should recognize the existence of pertinent legal authorities. Furthermore, as stated in paragraph (a)(4), an advocate has a duty to disclose directly adverse authority in the controlling jurisdiction which has not been disclosed by the opposing party. The underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case.64

Additionally, we find guidance in the Texas Lawyer’s Creed and the

Standards for Appellate Conduct promulgated by the Texas Supreme Court. The

Texas Lawyer’s Creed provides “a clear directive about how lawyers are to conduct

61 T EX . R. A PP . P. 52.11.

62 Tex. Disciplinary R. of Prof’l Conduct 3.03(a)(1), reprinted in T EX . G O V ’T C OD E A N N ., tit. 2, subtit. G app. A (Vernon 2005) (T EX . S TATE B AR R. art. X., § 9).

63 Id. 3.03(a)(4).

64 Id. cm t. 3.

21 themselves in respect to the legal system, the courts, clients and other lawyers.”65

The Creed states, “I am passionately proud of my profession. Therefore, ‘My word

is my bond.’”66 Additionally, the Standards for Appellate Conduct provide:

As professionals and advocates, counsel assist the Court in the administration of justice at the appellate level. Through briefs and oral submissions, counsel provide a fair and accurate understanding of the facts and law applicable to their case. . . . 3. Counsel should not misrepresent, mischaracterize, misquote, or miscite the factual record or legal authorities.67

In In re Colonial Pipeline Co., this Court ordered the relators to show cause

why they should not be sanctioned for failing to disclose controlling case authority

and failing to distinguish it from the case at issue.68 We held that “such failure to

disclose pertinent adverse authority might well be a failure of Relators to deal in

good faith with this Court and a breach of professional ethics,” and we held that

such failure would likely be sanctionable under Texas Rule of Appellate Procedure

52.11(a).69 At the show cause hearing in the case, however, relators satisfactorily

explained that the case law at issue was not controlling and had not been discussed

for that reason.70 Other courts, however, have sanctioned a relator’s counsel for

65 In re Hasbro, Inc., 97 S.W .3d 894, 897 n.2 (Tex. App.–Dallas 2003, orig. proceeding).

66 See Texas Lawyer’s Creed, available at http://www.txethics.org/reference_creed.asp (last visited Oct. 8, 2007).

67 T e x a s S u p r e m e C o u r t , S t a n d a r d s f o r A p p e lla t e C o n d u c t , a v a ila b le a t http://www.suprem e.courts.state.tx.us/rules/conduct.asp; see also In re Hasbro, Inc., 97 S.W .3d at 897 n.2.

68 960 S.W .2d 272, 273-74 (Tex. App.–Corpus Christi 1997, orig. proceeding).

69 Id.

70 See In re Colonial Pipeline Co., No. 13-97-808-CV, 1998 Tex. App. LEXIS 393 (Tex. App.–Corpus Christi Jan. 22, 1998, orig. proceeding).

22 grossly misstating the law and the facts of cited case precedent, finding that

petitions based on such statements are groundless and brought in bad faith.71

As noted above, Twist’s mandamus petition quotes language from the Texas

Supreme Court’s opinion in Padilla v. La France.72 His petition states the following,

verbatim:

In Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex. 1995), the Supreme Court held that “if a party seeks to enforce a settlement agreement, it must invoke the Court’s jurisdiction over the subject matter by filing the proper pleadings, as in any suit based in contract, and any order entered without proper pleadings is void.”

We have reviewed that case, and no such statement appears in the opinion.

At the hearing to show cause, in response to the Court’s questions about the

Bank’s oral motion to enforce the settlement agreement, Twist’s attorney

represented the supreme court’s holding in Padilla by initially repeating the position

espoused in his petition: “You have to file a written motion to enforce a settlement

agreement. It has to be a written motion. That’s what Padilla says.” With respect

to his failure to accurately quote Padilla, Twist’s attorney argued that the quotations

around the cited language from the Padilla opinion were a “typographical error.” He

stated, “It’s not a quote, but that’s what the court held in essence, was that without

a written motion, without following a normal suit to enforce the contract the way

you’re supposed to do it in writing, with notice, it’s void, period.”

Justice Benavides then stated that the Court had read Padilla and was

71 See, e.g., In re Guevara, 41 S.W .3d 169, 171-74 (Tex. App.–San Antonio 2001, orig proceeding) (per curiam ) (sanctioning relator’s counsel for m isrepresenting the holdings of the San Antonio Court of Appeals and the Texas Suprem e Court).

72 Padilla, 907 S.W .2d at 461-62.

23 concerned that Padilla had been misrepresented to the Court:

So are you telling this Court that Padilla says that you need to have a written motion in order to have subject matter jurisdiction? Because this Court looked at Padilla and it does not state what you said in your brief. And one of the reasons that the Court can sanction you under the appellate procedure Rule 52.11 is that if you are misstating or omitting an obviously important and material fact in the petition or the response. So if you’re misquoting Padilla and that is the basis of your allegations to this Court of why this Court wants jurisdiction, then we have some problems[,] Mr. Leas.

Confronted with the Court’s awareness of Padilla’s holding, Twist’s counsel

backtracked: “Padilla said that you have to have, you have to follow as any suit in

contract. And there’s a string of cases that say that.” After the hearing, Twist

amended his petition to delete the references to the quoted language from Padilla.

Twist’s arguments regarding the January 19, 2001 and April 19, 2002 orders

focus solely on whether those orders are “void.” Even if the quotations were

accidentally placed in the text, Padilla does not state, explicitly or otherwise, that

orders enforcing a settlement agreement rendered without supporting pleadings are

“void,” nor does the opinion suggest such a rule.73 Padilla discusses the

requirements for enforcing a settlement agreement in a few broadly worded

sentences: “An action to enforce a settlement agreement, where consent is

withdrawn, must be based on proper pleading and proof. In this case, for example,

Padilla filed a counterclaim seeking enforcement of the parties’ agreement, and both

sides moved for summary judgment on that claim.”74 Nowhere does the Padilla

73 Id. at 461.

74 Id.

24 opinion state that the failure to properly plead and prove a breach of a settlement

agreement renders any judgment enforcing the agreement void, nor does the

opinion state that an oral motion to enforce a settlement agreement is insufficient.

Moreover, this Court has not located any authority to support Twist’s position that

the orders enforcing the settlement are “void.”

More troubling, however, is Twist’s argument that the trial court’s orders

enforcing the settlement agreement did not dispose of the entire case. In their pleas

to the jurisdiction, the Bank and Kittleman argued that the Bank’s third-party claim

against Griggs was a void action because it was taken, unwittingly, in violation of the

automatic stay in bankruptcy. Twist’s mandamus petition does not address, or even

acknowledge, this argument, nor does it discuss controlling authority on this point

that is directly contrary to Twist’s argument. Specifically, Twist does not attempt to

distinguish our decision in Padrino Maritime v. Rizo, where we expressly held that

a suit filed during an automatic stay in bankruptcy is a void act that does not invoke

the trial court’s jurisdiction over the party in bankrutpcy.75

Finally, the allegations in the Twist II mandamus are identical to those argued

in the Twist I mandamus, which we denied. When confronted with this assertion at

the show cause hearing, Mr. Leas stated:

The mandamus action in 2004 was a different action. It had different points in it. The mandamus action in 2004 was based on, number one, abuse of discretion, dismissed case for want of jurisdiction because of loss of plenary power because there was no final judgment in the case. . . . And the other was abuse of discretion because third-party defendant breaches of bankruptcy and there was

75 130 S.W .3d at 247.

25 no dismissal or severance of third-party claim.

As can be gleaned from our discussion of the arguments above, these are the

identical issues raised in the current mandamus proceeding, the Twist II mandamus.

Although we might have overlooked the misquotation and mischaracterization

of Padilla as negligent error,76 given the additional complete failure to cite and

analyze the law governing critical points in Twist’s argument and the refusal to

accept this Court’s disposition of arguments previously presented to this Court, we

can only conclude that Twist’s counsel knowingly and in bad faith brought this

petition for writ of mandamus, which we find to be groundless.77

We are, however, mindful that any sanctions must “bear a direct relationship

to the offensive conduct.”78 Groundless litigation “unduly burdens the other parties

involved and the judicial system itself.”79 Accordingly, we grant the Bank’s and

Kittleman’s motion for sanctions as to Twist’s counsel, Stephen Leas. Mr. Leas is

ordered to pay attorney’s fees to the Bank in the amount of $2,500.00 and to

Kittleman in the amount of $2,500.00. Such fees are to be paid within 30 days of

the date of this opinion and are to be applied to real parties’ attorney’s fees

76 See In re Lerma, 144 S.W .3d at 29 (refusing to exercise discretion to im pose sanction for carelessness).

77 T EX . R. A P P . P. 52.11; see In re Lincoln, 114 S.W .3d 724, 728 (Tex. App.–Austin 2003, orig. proceeding) (awarding sanctions after finding a “pattern of filing baseless m otions and petitions”); In re Guevara, 41 S.W .3d at 173 (“An attorney does not act in good faith when he presents false statem ents to the court.”).

78 In re Hasbro, Inc., 97 S.W .3d at 898; see also In re Lincoln, 114 S.W .3d at 728.

79 In re Lincoln, 114 S.W .3d at 728.

26 expended in responding to the Twist II mandamus.80 This Court has also incurred

expenses in the form of court-reporting fees for the show cause hearing. Mr. Leas

is ordered to pay $365.15 to the Clerk of this Court as reimbursement for those

expenses, within 30 days of the date of this opinion.

Additionally, we order Mr. Leas to attend a continuing legal education course

in advanced civil procedure, to be completed within 180 days of the date of this

opinion. Mr. Leas shall submit written proof of his completion of the required course

upon completion, provided, however, that such proof must be submitted no later

than 200 days from the date of this opinion.81 Finally, we order Mr. Leas to cease

and desist from filing frivolous motions and pleadings in this Court and the trial

court.82 Ya Basta!83 Failure to comply with this Court’s opinion may be punishable

by contempt. No motion for rehearing will be entertained in this matter.

III. TWIST II APPEAL

Twist never filed an appellate brief in the Twist II appeal and has not moved

to dismiss that appeal. The Bank has moved to dismiss the appeal as untimely and

for sanctions. We dismiss the appeal but decline to order further sanctions.

80 Real parties have requested a substantially higher am ount in attorney’s fees. W e have exercised our discretion to award a lower am ount, however, in order to com pensate the Bank and Kittlem an for attorney’s fees expended only in response to the m andam us and show cause order in this Court. This Court cautions Mr. Leas, however, that if any further filings are m ade with respect to trial court cause num ber C-3690-99-A, we reserve the right to increase this am ount as appropriate.

81 See In re Guevara, 41 S.W .3d at 174.

82 See id.

83 “Enough is enough!” See Holloway v. Fifth Court of Appeals, 767 S.W .2d 680, 686 (Tex. 1989) (orig. proceeding) (Gonzales, J. dissenting) (dissenting from the denial of a m andam us petition in a case that had been litigated for over ten years, stating “Ya Basta!”).

27 As stated above, any appeal in this matter was required to have been filed

following the April 29, 2002 order, which was the final judgment in this case.

Because Twist abandoned the Twist I appeal, he has lost any available appellate

remedy. Accordingly, we dismiss his appeal in cause number 13-06-00638-CV as

untimely.

The Bank’s motion for sanctions asserts: (1) that the appeal is untimely; (2)

that Twist has pursued an appeal which he knew the Court did not have jurisdiction

to hear; (3) that Twist failed to disclose to the Court the prior events in this case; (4)

that Twist has ignored well-settled adverse law without arguing for a change in the

law; (5) that Twist is attempting to present unpreserved error; and (6) that Twist is

trying to re-litigate issues previously decided.

Texas Rule of Appellate Procedure 45 governs sanctions for a frivolous

appeal.84 It 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.”85 Because

Twist has not filed appellate briefs requiring a response from the Bank, we decline

to order sanctions in connection with the appeal.

IV. CONCLUSION

84 T EX . R. A PP . P. 45.

85 Id.

28 We deny the Twist II Mandamus in cause number 13-07-0105-CV and order

sanctions as set forth above pursuant to Texas Rule of Appellate Procedure 52.11.

We dismiss the Twist II Appeal in appellate cause number 13-06-638-CV as

untimely and decline to order further sanctions in the appeal. No motion for

rehearing in either cause number will be entertained.

LINDA REYNA YAÑEZ, Justice

Vela, J., concurring in the result only, without separate opinion.

Opinion delivered and filed this the 5th day of December, 2007.