On March 12, 2015, the First Court of Appeals released two family law opinions, Nelson v. Nelson, No. 01-13-00816-CV (Tex.App.–Houston [1st Dist.], Mar. 12, 2015) and Tanner v. Black, No. 01-13-01059 (Tex.App.–Houston [1st Dist.], Mar. 12, 2015). Interestingly, both cases involve the trial court striking a party’s pleadings, but the results in each case differ.
The opinion in Nelson v. Nelson is an interesting read because the trial appears to have been something of a train wreck. The father represented himself. Because he failed to pay his portion of the amicus attorney’s fees despite several warnings from the trial court, his jury demand and pleadings were struck a week before trial. At trial, he refused to present any evidence or witnesses, evidently in protest over the trial court denying him a trial by jury. The mother (ably represented) presented damning evidence of the father’s character and poor parenting. The mother was appointed SMC. The father appealed, challenging the trial court’s striking of his jury demand and pleadings.
On appeal, the mother conceded it was error for the trial court to strike the father’s jury demand. But the court of appeals found the error was not harmful and thus not reversible. A trial court’s refusal to grant a jury trial is harmless error only if the record shows there were no material issues of fact and an instructed verdict would have been justified. In most family law cases, this is a very difficult standard to reach, as questions of conservatorship and possession and access are inevitably fact-specific. But in this case, because the father presented absolutely no evidence to rebut the mother’s evidence of the father’s abysmal conduct (besides lodging overruled objections), a directed verdict would have been justified and thus, the error of striking the jury demand was found to be harmless.
As for the father’s pleadings, the court of appeals found that the sanction was proportionate to the father’s dilatory conduct. Additionally, the court of appeals noted that for death-penalty sanctions to be just, ordinarily there must be a determination that the wrongdoing party’s actions justify a presumption that his claims or defenses lack merit. But this rule did not apply to this case because the father did not, in his pro se petition, plead for any specific relief other than no-fault divorce and did not allege that the mother had committed any wrongful acts. Perhaps most surprisingly, his petition did not even ask for any particular form of conservatorship over the children and asked the trial court to resolve any facts and make any appropriate orders if the mother and father could not reach an agreement.
In other words, Nelson v. Nelson establishes yet again that litigants who decide to proceed pro se are embarking on a perilous path.
In Tanner v. Black, the court of appeals reversed the striking of the appellant’s pleadings in the trial court. After his divorce, the appellant-father sued the amicus who worked on his case, both in his own capacity and as his daughter’s next friend. The amicus entered a general denial and pleaded the affirmative defense of immunity under Section 107.009. She also asserted counterclaims alleging the father’s lawsuit was groundless, brought in bad faith or solely for harassment. The amicus also filed a motion to show authority in which she argued the father lacked authority to act as next friend for his daughter because the divorce decree required the joinder of the mother in legal proceedings brought on behalf of the child.
At an evidentiary hearing on the motion to show authority, the father acknowledged he did not have the mother’s agreement to bring the suit as next friend. The amicus argued that all of the father’s claims were “derivative” of her work as an amicus in the divorce and therefore “derivative” of the claims brought as the next friend of the daughter. The court struck all of the father’s pleadings–including those in his individual capacity–and awarded the amicus $26,353.17 in attorneys’ fees and costs of court.
On appeal, the father challenged the trial court striking all of his pleadings (though he did not challenge the trial court striking his pleadings as next friend of the daughter) and the fee award because, he claims, she failed to prove his lawsuit was groundless or brought in bad faith or for the sole purpose of harassment. On appeal, the amicus argued she was immune to the father’s suit. But the court of appeals noted that the father had accused the amicus of bad faith, which is an exception to the immunity rule under the statute. The court of appeals held there was no legal basis for striking the father’s individual pleadings in response to the amicus’s motion to show authority and sustained the father’s first issue.
As for the fee award, the court of appeals reversed that as well. Tex. R. Civ. P. 13 and Chapter 10 of the Tex. Civ. P. & Rem. Code require that sanctions for groundless, bad faith, or for-the-purpose-of-harassment pleadings must state in the sanctions order a reason for the sanctions. The court of appeals found that the sanctions order in this case did not state on its face it was a sanctions or recite any particulars regarding any sanctionable conduct. Additionally, there was no evidentiary support in the record for a sanctions order under Rule 13 or Chapter 10: no mention of sanctions or testimony about sanctionable conduct at the hearing on motion to show authority.