Sherril Stringfellow v. John Fontenot and Tracy Long

• Court: Court of Appeals of Texas
• Decided: March 16, 2006
• Docket: 14-05-00155-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed March 16, 2006

Affirmed and Memorandum Opinion filed March 16, 2006.

In The

Fourteenth Court of Appeals

_______________

NO. 14-05-00155-CV

SHERRIL STRINGFELLOW, Appellant

V.

JOHN FONTENOT and TRACEY LONG, Appellees

_____________________________________________________

On Appeal from County Civil Court at Law No. 4

Harris County, Texas

Trial Court Cause No. 779,244

M E M O R A N D U M   O P I N I O N

Sherril Stringfellow appeals a judgment entered in favor of John Fontenot and Tracey Long on the grounds that the trial court erroneously based the judgment on: (1) Chapter 10 (Achapter 10") of the Civil Practice and Remedies Code (ACPRC@) and Texas Rule of Civil Procedure 215.2(b) (Arule 215.2(b)@); and (2) incorrect findings of fact and conclusions of law.  We affirm.

In 2002, Long and Fontenot took Fontenot=s watch to a jewelry store for repair.  When Stringfellow, an employee of the store, later denied waiting on Fontenot or knowing about the watch, Fontenot called the police and Stringfellow was later arrested and charged with theft.  After the theft prosecution was dismissed, Stringfellow filed suit against Fontenot and Long, alleging libel per se,^[1] slander per se, and malicious prosecution.  Fontenot and Long filed counterclaims alleging, as relevant to this appeal, that Stringfellow=s claims had no basis in law.  Following a bench trial, the trial court rendered a judgment expressly denying Stringfellow=s claims and awarding Fontenot and Long attorney=s fees and costs of court.^[2]

Stringfellow=s first issue contends that the trial court erred by basing its judgment on chapter 10 or rule 215.2(b) because this case did not involve a discovery dispute.

The judgment in this case states, in part:

Further, the Court and [sic] announced its decision for Defendants, John Fontenot and Tracey Long, as to their counter-claims against Plaintiff, Sherril Stringfellow, pursuant to Chapter 10 of the Texas Civil Practices & Remedies Code, and Texas Rule of Civil Procedure 215.2(b).

*          *          *          *

The Court orders that Defendants, John Fontenot and Tracey Long[,] recover attorney=s fees in the sum of $1,500.00 and costs of Court.

In this regard, one of the trial court=s conclusions of law states that Stringfellow=s action had no basis in law.  The findings of fact also state A[t]hat the services performed by David Anderson were necessary for the defense of this litigation on behalf of Fontenot and Long@ and A[t]hat $1,500.00 is a reasonable and customary fee for services performed by an attorney of David Anderson=s experience in Harris County, Texas[,] such as those performed in the defense of this action.@

A party cannot recover attorney's fees from an opposing party unless permitted by statute or by contract between the parties.  Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 95 (Tex. 1999).  In this case, there is no indication of a contract between the parties providing for attorney=s fees.  Additionally, the record does not reflect any failure to comply with a discovery request or order, as would have been necessary to award attorney=s fees under rule 215.2(b).  See Tex. R. Civ. P. 215.2(b)(8). 

However, Fontenot and Long=s counterclaim (asserting that Stringfellow=s claims had no basis in law) sought sanctions under CPRC section 10.004 (Asection 10.004@).  Section 10.004 allows a trial court to impose sanctions, including attorney=s fees, if it determines that a person has signed a pleading in violation of CPRC section 10.001^[3] (providing that the signing of a pleading is a certification that each claim asserted is warranted by existing law).  Tex. Civ. Prac. & Rem. Code Ann. '' 10.001(2), 10.004(a), (c)(3) (Vernon 2002).^[4] Therefore, the mere fact that this case involved no discovery dispute did not preclude the trial court from basing its judgment on chapter 10, as Stringfellow=s first issue contends.  Accordingly, it is overruled.

Stringfellow=s second issue argues that the trial court erred in basing its judgment on incorrect findings of fact 1 and 7, which state: AThat on March 2, 2002 Fontenot went to Bay Area Jewelers to have his watch resized,@ and AThat Stringfellow lied to the police officer when she denied having waited on Fontenot,@ respectively.  Stringfellow=s third issue similarly asserts that the trial court erroneously based its judgment on incorrect conclusions of law 1 and 6, which state: AThat neither Fontenot nor Long published a statement that was false regarding Stringfellow,@ and AThat Stringfellow=s action against Fontenot and Long had no basis in law,@^[5] respectively.  However, in addition to these findings of fact and conclusions of law, which Stringfellow challenges, the trial court also entered the following findings and conclusions, which she does not challenge:

Findings of fact:

3. That when Fontenot asked her when his watch would be ready, Stringfellow denied ever waiting on Fontenot.

5. That St[r]ingfellow, when being interviewed by the police, denied ever waiting on Fontenot.

6. That when the investigating officer viewed the store=s surveillance video, he determined that Stringfellow had in fact taken Fontenot=s watch.

8. That the District Attorney prosecuted Stringfellow for theft based upon her denial of waiting on Fontenot and the contradictory surveillance video.

Conclusions of law:

2. That neither Fontenot nor Long acted with malice in publishing any statements regarding Stringfellow.

3. That neither Fontenot nor Long initiated or procured a criminal prosecution against Stringfellow.

4. That neither Fontenot nor Long acted with malice in reporting Fontenot=s watch stolen to the Houston Police Department.

5. That Fontenot and/or Long=s reporting suspected criminal activity is privileged communication.

Because Stringfellow=s brief does not challenge these findings^[6] and conclusions or demonstrate that the trial court=s judgment is in error even if they are correct, it provides no basis to conclude that the denial of her claims should be reversed notwithstanding these findings and conclusions.  Accordingly, Stringfellow=s second and third issues are overruled, and the judgment of the trial court is affirmed.

/s/        Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed March 16, 2006.

Panel consists of Justices Anderson, Edelman, and Frost.

---

^[1]           On appeal, Stringfellow does not challenge the denial of her libel claim.

^[2]           To the extent that Stringfellow is challenging the portion of the judgment awarding court costs, the taxing of such costs is governed by Texas Rule of Civil Procedure 131, not chapter 10 or rule 215. See Tex. R. Civ. P. 131; Furr=s Supermarkets, Inc. v. Bethune, 53 S.W.3d 375, 376 (Tex. 2001).  Because Stringfellow does not contend that the award of costs was improper with regard to any aspect of rule 131, she provides us no basis to find error on that part of the judgment.

^[3]           Monetary sanctions for a violation of section 10.001(2), requiring each claim to be warranted by existing law, may be imposed only against the person signing the pleading, not a party represented by that person.  Tex. Civ. Prac. & Rem. Code Ann. '' 10.001(2), 10.004(d) (Vernon 2002).  However, appellant did not raise in the trial court or on appeal any complaint concerning this restriction or any other statutory requirements for a section 10.004 sanction.

^[4]           Rule 13 similarly allows a trial court to impose the sanctions available under rule 215.2(b), including attorney=s fees for signing a pleading that is groundless.  See Tex. R. Civ. P. 13.

^[5]           Stringfellow contends that these conclusions of law are incorrect because the only testimony in the record is that Fontenot falsely told the police officer in Stringfellow=s presence that Stringfellow stole his watch.  Stringfellow asserts that such a statement imputing a person with criminal conduct is slander per se; and that although truth is a defense, Fontenot and Long did not present that defense.

^[6]           See McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986) (noting that unchallenged findings of fact are binding on an appellate court unless the contrary is established as a matter of law, or if there is no evidence to support the finding.).