In a rare move, the Dallas Court of Appeals has levied sanctions against a party for filing a frivolous appeal of a trial court’s order denying that party’s special appearance. In Estate of Deuel-Nash, 2014 WL 5581044 (Tex. App. – Dallas 2014, n.p.h.), the defendant (Nash) in a probate proceeding filed a plea to the jurisdiction (which is different from a special appearance contesting personal jurisdiction) and later filed a “motion to nonsuit” the plea to the jurisdiction. The defendant also served a non-party with a subpoena. The defendant thereafter failed to produce documents in response to a demand from the plaintiff, prompting the trial court to issue an order to the defendant to appear and respond to the plaintiff’s motion to show cause. In response to that order, the defendant filed a special appearance, contesting the probate court’s jurisdiction over him.
Before the trial court ruled on the defendant’s special appearance, it held a hearing on the plaintiff’s motion to show cause. At the hearing the defendant’s lawyer told the judge that he could not respond to the motion to show cause until the court ruled on the special appearance. The trial judge then stated that he was denying the special appearance, and the next day he signed an order to that effect. The defendant then filed an interlocutory appeal of that ruling.
The Dallas Court of Appeals affirmed the trial court’s decision, reasoning that the defendant had made a general appearance in the trial court before filing his special appearance, and thus had waived his special appearance. His counsel in fact admitted as much at oral argument. He nevertheless argued that his client’s general appearance did not operate as a waiver of the special appearance as to the motion to show cause because that motion was severable, and because a special appearance can be made as to a severable claim. The court of appeals held that this argument was waived because it was never presented to the trial court. It also held that the defendant waived an argument that the trial court ruled on the special appearance without first conducting a hearing on it.
Having concluded that the defendant made a general appearance and had waived its arguments to the contrary, the court of appeals was asked by the plaintiff/appellee to impose sanctions against the defendant for filing a frivolous appeal – something appellate courts rarely do and don’t like to do. The court noted that an appeal is frivolous “when the record, viewed from the perspective of the advocate, does not provide reasonable grounds for the advocate to believe that the case could be reversed.” The court acknowledged that it would impose sanctions “only in circumstances that are truly egregious,” but found that the facts of this case met that standard. In this connection, the court held that the defendant’s brief made no mention of the fact that he had generally appeared in the probate proceeding. Due to this “lack of candor” in the briefing, and the frivolousness of the appeal, the court ruled that the appeal was frivolous, and granted the plaintiff leave to submit evidence of at least $ 7,000 in fees, which it apparently intends to award as a sanction.
As any lawyer will tell you, it always hurts to lose a case. You try not to take it personally, but it’s easier said than done. It’s not so much that your ego is bruised; you just feel bad for the client, who has placed his or her trust in you. But what no lawyer ever wants to face is the specter of sanctions, because that can not only impact your reputation, but can also hit you or your client in the pocketbook.
In past posts I’ve emphasized the danger of waiving a defendant’s challenge to personal jurisdiction. I’ve also discussed how waiving arguments on appeal can have disastrous effects. One can find no better example than the Deuel-Nash decision.
Don’t let it happen to you.
Written By: Alex Beard
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