Morris J. Kirschberg v. Kathleen Anne Fletcher--Appeal from County Court at Law No 7 of Bexar County

No. 04-99-00126-CV
Morris J. KIRSCHBERG,
Appellant
v.
Kathleen Anne FLETCHER,
Appellee
From the County Court at Law No. 7, Bexar County, Texas
Trial Court No. 240,375
Honorable Bill C. White, Judge Presiding

Opinion by: Tom Rickhoff, Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Alma L. L pez, Justice

Delivered and Filed: November 10, 1999

REVERSED & RENDERED

Morris J. Kirschberg represented two plaintiffs in a suit against Kathleen Anne Fletcher for damages arising from a car accident. In this restricted appeal, Kirschberg challenges an order assessing monetary sanctions against him for discovery abuse. Because the motion for sanctions did not request that sanctions be assessed against Kirschberg, we reverse the order insofar as it assesses sanctions against him.

Procedural History

Fletcher filed three motions for sanctions for discovery abuse. In the first two motions, she sought sanctions only against the plaintiffs. The court granted both motions. Kirschberg subsequently filed a motion to withdraw as counsel for one of the plaintiffs, Gilbert Alvarez. The court granted this motion.

The day before the order granting Kirschberg's motion to withdraw was signed, Fletcher filed her third motion for sanctions, entitled, "Defendant's Motion for Sanctions Against Plaintiff Gilbert Alvarez." The prayer for relief in this motion requested an order dismissing Alvarez's suit and stated that "the Court should award Defendant $500 in attorney's fees and costs incurred by having to prepare and file this Motion and attending the hearing on same." Although Kirschberg does not dispute that he was served with this motion, he did not appear at the hearing on the motion. The court granted the motion, dismissed Alvarez's suit with prejudice, ordered that Alvarez and Kirschberg are jointly and severally liable for payment of the $1500 previously awarded as sanctions, and ordered that Alvarez and Kirschberg are jointly and severally liable for an additional $500 in sanctions.

Jurisdiction

"A party who did not participate--either in person or through counsel--in the hearing that resulted in the judgment complained of and who did not timely file a postjudgment motion or request for findings of fact and conclusions of law, or a notice of appeal within the time permitted by [Texas Rule of Appellate Procedure] 26.1(a)" may pursue a restricted appeal by filing a notice of appeal within six months after the judgment is signed. Tex. R. App. P. 30; see also Tex. R. App. P. 26.1(c). Restricted appeals replace writ of error appeals. See Tex. R. App. P. 30. Fletcher has filed a motion to dismiss, arguing that we lack jurisdiction over this restricted appeal because Kirschberg participated in the proceedings and was not a party to the proceedings.

Nonparticipation Requirement

Fletcher argues that although Kirschberg did not appear at the hearing on the third motion for sanctions, he participated in proceedings "leading up to" the complained-of order because he participated in the discovery abuse and filed a motion to reconsider the first sanctions order.

Construing the nonparticipation requirement in the context of a writ of error appeal, the supreme court has held that the relevant inquiry is "whether the appellant has participated in the decision-making event that results in judgment adjudicating the appellant's rights." Texaco, Inc. v. Central Power & Light Co., 925 S.W.2d 586, 589 (Tex. 1996) (citations & internal quotation marks omitted). Kirschberg's participation in discovery on behalf of his clients, his filing a motion to reconsider the first sanctions order on behalf of his clients, and his participation in the discovery abuse for which he was sanctioned do not equate with participating in the decision-making event that resulted in the sanctions order. The decision-making event was the hearing on Fletcher's final motion for sanctions. It is undisputed that Kirschberg did not participate in this hearing through either written or oral submissions. Cf. Classic Promotions, Inc. v. Shafer, 846 S.W.2d 948, 950 (Tex. App.--Houston [14th Dist.] 1993, no writ) (holding that defendants participated in the court's decision to strike their pleadings by filing a written response to the motion to strike). Thus, he clearly did not participate in the "hearing that resulted in the judgment complained of." Tex. R. App. P. 30.

Fletcher relies principally on Shafer, in which the court opined that the writ of error should not be used "to protect those who deliberately choose not to participate in the judicial process." Id. at 951. Similarly, Fletcher argues that Kirschberg should not be allowed to challenge the sanctions order by a restricted appeal because he received notice of the hearing on the motion for sanctions, yet chose not to participate, and he received a copy of the sanctions order within the time for perfecting a regular appeal, yet chose to delay and file a restricted appeal.

In Texaco, the supreme court held that Shafer "erroneously presuppose[s] that there is some sort of equitable component to appeal by writ of error," when actually appeal by writ of error is but another mode of appeal. 925 S.W.2d at 590. It is "the fact of nonparticipation, not the reason for it, that determines the right to appeal by writ of error." Id.

Under Texaco, Kirschberg's notice of the hearing and knowledge of the order within the time for perfecting an ordinary appeal are irrelevant. See Bisby v. Dow Chem. Co., 931 S.W.2d 18, 20-21 (Tex. App.--Houston [1st Dist.] 1996, no writ). Thus, Fletcher's reliance on Shafer is misplaced. We conclude that Kirschberg satisfies the nonparticipation requirement.

Party Requirement

Fletcher next argues that Kirschberg cannot appeal by restricted appeal because he is not a party. She relies on cases in which the person appealing was a stranger to the record and was not bound by the judgment. See Gunn v. Cavanaugh, 391 S.W.2d 723 (Tex. 1965); Johnson v. Johnson, 841 S.W.2d 114 (Tex. App.--Houston [14th Dist.] 1992, no writ). In this case, Kirschberg is not a stranger to the record. The order purports to be a binding adjudication that he is liable for the sanctions. Even non-parties have been allowed to appeal if they were bound by the judgment. See Grohn v. Marquardt, 487 S.W.2d 214, 217 (Tex. Civ. App.--San Antonio 1972, writ ref'd n.r.e.). We also note that the sanctions were assessed pursuant to Rule 215 of the Texas Rules of Appellate Procedure. The provisions of that rule allowing the imposition of discovery sanctions on counsel state, "Such an order shall be subject to review on appeal from the final judgment." See Tex. R. Civ. P. 215.1(d), 215.2(b)(2), 215.2(b)(8).

We conclude that Kirschberg satisfies the party requirement.

Waiver

In a variation on her participation argument, Fletcher argues that Kirschberg waived his complaint by failing to attend or object to the hearing and by failing to file a motion for new trial or motion to modify the trial court's order. See Tex. R. App. P. 33.1(a). In a restricted appeal, however, an appellant does not waive error by failing to object or failing to file a motion for new trial. See Brown v. Brookshires Grocery Store, No. 5-96-1710-CV, 1999 WL 59791, at **3 (Tex. App.--Dallas Feb. 10 1999, pet. denied); Texaco, Inc. v. Central Power & Light Co., 955 S.W.2d 373, 375-76 (Tex. App.--San Antonio 1997, pet. denied).

We conclude that Kirschberg has not waived his complaint on appeal.

Notice

Kirschberg argues that the trial court erred by making him jointly and severally liable for the sanctions because Fletcher's motion did not request sanctions against him. A trial court cannot grant relief that is without pleadings to support it. See State v. Estate of Brown, 802 S.W.2d 898, 900 (Tex. App.--San Antonio 1991, no writ); Westchester Fire Ins. Co. v. Nuckols, 666 S.W.2d 372, 375 (Tex. App.--Eastland 1984, writ ref'd n.r.e.); see also Tex. R. Civ. P. 215.1, 215.2(b) (requiring reasonable notice before sanctions may be assessed).

A motion's substance is not to be determined by its caption but from its body and prayer for relief. See Woodruff v. Cook, 721 S.W.2d 865, 869 (Tex. App.--Dallas 1986, writ ref'd n.r.e.). The motion upon which the sanctions order is based is captioned, "Defendant's Motion for Sanctions Against Plaintiff Gilbert Alvarez." Although the body of the motion also contains references to Kirschberg's participation in the discovery abuse, the prayer for relief never mentions Kirschberg. Instead, it refers to Alvarez's refusal to comply with prior orders and discovery requests, seeks dismissal of Alvarez's petition, and asks for $500 in attorney's fees.

Fletcher argues that the motion's prayer for "such other and further relief to which [she] is justly entitled" supports the assessment of sanctions against Kirschberg. To support this argument, she relies on an overly broad reading of Anderson v. Teco Pipeline Co., 985 S.W.2d 559, 563 (Tex. App.--San Antonio 1998, pet. denied). In Anderson, a condemnor deposited monies in the court's registry in order to take possession of the property pending resolution of the eminent domain proceedings. At the conclusion of the proceedings, the trial court determined that the condemnor had the power of eminent domain, awarded the condemnee damages for the taking, and ordered that the monies deposited in the court's registry be returned to the condemnor. This court held that the order for return of the monies was supported by the prayer for general relief because this relief comported with the issues properly submitted to and decided by the trial court. See Anderson, 985 S.W.2d at 563. In contrast, Fletcher attempts to use a prayer for general relief to support a judgment against a party from whom she did not otherwise request relief. Anderson is inapposite.

We conclude that the motion did not notify Kirschberg that Fletcher was seeking sanctions against him. See Nuckols, 666 S.W.2d at 375.(1)

Sanctions on Appeal

Fletcher requests this court to sanction Kirschberg for bringing a frivolous appeal. Given our disposition of the appeal, the request for sanctions is denied. Kirschberg requests that we sanction Fletcher for procuring the order being appealed. We decline to do so--even assuming we have the power to sanction a party for conduct occurring before another court.

Conclusion

For the reasons stated herein, Fletcher's motion to dismiss is denied, the sanctions order is reversed insofar as it assesses sanctions against Kirschberg, and judgment is rendered that Fletcher take nothing from Kirschberg.

Tom Rickhoff, Justice

DO NOT PUBLISH

1. Fletcher suggests that Kirschberg was liable for the first two sanction awards because a handwritten notation on a computer-generated docket sheet referring to Kirschberg's motion to withdraw states, "Granted but sanctions must still be paid." This language is not included in the order granting the motion to withdraw. Generally, a docket entry forms no part of the record that this court may consider. It is merely a memorandum made for the trial court's and clerk's convenience. See Miller v. Kendall, 804 S.W.2d 933, 944 (Tex. App.--Houston [1st Dist.] 1990, no writ). This rule results, in part, from the inherent unreliability of docket entries. See id. In this case, the docket entry does not contain the date the notation was made, nor is it clear who made the notation. Another part of the notation is illegible. We therefore find no reason to depart from the general rule that precludes us from considering docket entries.