Sue Walston v. James H. Stewart and Jim Stewart, Realtors, Inc.

187 S.W.3d 126, 2006 Tex. App. LEXIS 481, 2006 WL 133610

• Court: Court of Appeals of Texas
• Decided: January 18, 2006
• Docket: 10-05-00135-CV
• Status: Published

Opinions

TOM GRAY, Chief Justice,

dissenting.

It is impossible for me to express the level with which I disagree' with the conclusions of my colleagues that this appeal was frivolous. I do not recall any discussion of whether this appeal was frivolous at pre-submission conference, during oral argument, or in post-submission conference. I must ask, if they thought it was frivolous, why did they, over my objection, schedule it for submission on oral argument rather than on the briefs? If they thought it was frivolous, why did they, over my objection, extend the time for argument? If they thought this appeal was frivolous, why did they not discuss that, and why they found it so wanting in any merit, in the opinion?

I thought it was an easy legal issue to dispose of and that is why I did not think that it warranted argument, and certainly not an extension of argument time. But the reason I found this case easy was because in practice I read hundreds, if not thousands, of cases dealing with limitation issues. The limitations question is simple enough in a straightforward case. But in cases involving the application of a discovery rule when there are on-going acts in furtherance of the conspiracy, new versus recurring versus continuing damages caused by a conspiracy, and the possible cessation of participation in the conspiracy of one of the alleged co-conspirators, whew, it gets very complicated! There are many lawyers that would not have been able to grasp the issues as well as Ms. Walston, who is acting as her own attorney.

We routinely see appeals that have far less merit than this appeal but do nothing about it. Ask yourself, why would a majority of this Court target this appellant at this time? I fear that at least one justice has grown weary of Ms. Walston. But for a person representing herself, she has had phenomenal legal hurdles to overcome and has repeatedly done so against some of the most experienced attorneys in Waco. See In re. Walston, No. 10-05-00259-CV, 2005 WL 2787651, 2005 Tex.App. LEXIS 8838 (Tex.App.-Waco 2005, orig. proceeding); Walston v. Walston, 119 S.W.3d 435 (Tex. App.-Waco 2003, no pet.); Walston v. Walston, 971 S.W.2d 687 (Tex.App.-Waco 1998, pet. denied); Walston v. Walston, No. 10-94-169-CV and No. 10-94-251-CV (Tex.App.-Waco 1995, writ denied) (not designated for publication). I certainly understand why a litigant coüld believe and argue that something untoward is afoot. I find no fault in her bringing this appeal.

And I know it is a little thing, but if the appeal was frivolous, under the' internal rules, that- my colleagues think so much of that they are willing to issue an order before I have had time to study the issues, anything the author thought was relevant to that order should have been circulated with the draft. Pac. Emplrs. Ins. Co. v. Mathison, 2005 WL 2665454, 2005 Tex.App. LEXIS 8660 (Tex.App.-Waco Oct. 19, 2005) (Gray, C.J., Special Note); Procedures for Internal Deadlines for Approval of Opinions and Orders, Tenth Court of Appeals, General Provisions, p. 2 (Effective May 2, 2005). I can think of nothing more relevant to the determination of whether an appeal is frivolous than the appellant’s brief and the opinion we issued. But that is not what was circulated. Rather, what was circulated was the draft order and two opinions authored by Justice Yance which addressed sanctions for frivolous appeals. See Texas Dept, of Transp. v. Beckner, 74 S.W.3d 98 (Tex.App.-Waco 2002, no pet.); Compass Exploration, Inc. v. B-E Drilling Co., 60 S.W.3d 273 (Tex.App.-Waco 2001, no pet.). So I am not sure what the basis of the determination that the appeal was frivolous is, but the Rule 45 Order certainly does not tell you.¹ Compare this determination to what we identified in Compass Exploration as supporting the determination that the appeal was frivolous. In Compass Exploration, the following factors supported our conclusion that the appeal was frivolous:

• Compass cited no authority supporting its assertion that section 15.011 is a jurisdictional statute. In fact, the jurisdictional argument is plainly wrong, as any reasonable attorney should know.

• Compass cited no authority supporting its assertion that Eubank’s summary judgment affidavit was improper.

• Compass made no reasonable argument that its claims were not compulsory counterclaims.

• Compass presented no argument or authority that any law applicable to this case should be changed.

• In its entire brief, Compass cites to only two cases, one statute, and one rule of civil procedure.

• Compass did not respond to the motion for damages.

• Compass did not request oral argument.

• Compass’s brief had to be returned when originally filed for violation of local rule 14 requiring that the appendix be bound with the brief.

Compass Exploration, Inc., 60 S.W.3d at 280. That type analysis is entirely lacking in the majority’s determination that this appeal is frivolous.

Due Process

Not only do we not have facts to support the finding like those present in Compass Exploration, we have nothing in the Order at all that will tell the reader why we have taken this extraordinary step, the determination that the appeal was frivolous. Note that the majority has already made this determination without notice and the opportunity to be heard on the issue. The only issue remaining was whether to assess sanctions, which they have decided not to do. I realize one reading of Rule 45 may be that we can make the determination that an appeal is frivolous and then give notice. But in this instance, a majority of the Court rejects the much better jurisprudential thing to do, which would comport with due process, that is, to notify the parties that we are considering the issue and request a response — before the determination is made that the appeal is frivolous. But then if they have already made up their minds, such a notice is form over substance. Reminds me of the saying, “We’ll give him a fair trial, and then we’ll hang him.” (origin unknown).

1 . This dissenting opinion was drafted in response to a different Rule 45 Order, but its substance is applicable to this summary order as well. The text of the Rule 45 Order being rendered is as follows. "The Court has determined that this appeal is frivolous but has determined not to impose sanctions. See TexR.App. P. 45.”