Karen Broom v. Hans Erik Arvidson--Appeal from 25th Judicial District Court of Guadalupe County

No. 04-00-00214-CV
Karen BROOM,
Appellant
v.
Hans Erik ARVIDSON,
Appellee
From the 25th Judicial District Court, Guadalupe County, Texas
Trial Court No. 99-0903-CV
Honorable Linda Z. Jones, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Phil Hardberger, Chief Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: March 7, 2001

AFFIRMED AS MODIFIED

This appeal arises from a suit to establish an informal marriage and for divorce. Karen Broom appeals the trial court's denial of her motion for continuance and her motion to compel discovery. In his cross appeal, Arvidson claims the trial court erred in failing to award him court costs and attorney's fees. We modify the trial court's judgment and affirm it as modified.

Factual and Procedural Background

On June 11, 1999, Karen Broom filed this action seeking to establish an informal marriage between herself and Hans Erik Arvidson. In her original petition, she claimed that she and Arvidson were informally married and that the informal marriage had become insupportable. She requested that she and Arvidson be declared joint managing conservators of their children, a division of their community property, a temporary restraining order, extraordinary relief, and temporary orders for discovery and ancillary relief. Arvidson, in response, filed a motion to dismiss, requesting the trial court "to make a preliminary finding regarding the facts substantiating a marriage prior to entering any order in this cause other than one of dismissal."

On September 1, 1999, the trial court dismissed and severed Broom's suit affecting the parent-child relationship, and continued for a hearing "all other relief requested in [Broom's] Application for Temporary Orders or in [Arvidson's] Motion to Dismiss." Trial was set for December 20, 1999.

Broom sent Arvidson her first request for discovery on September 21, 1999. Arvidson responded on October 22, 1999. Broom then sent Arvidson a second set of discovery requests on December 6, 1999, to which Arvidson responded on December 15, 1999. Broom was dissatisfied with Arvidson's responses and moved to continue the trial setting for additional time to conduct discovery and to compel discovery. A hearing on Broom's motions also was set for December 20, 1999. After the hearing, the trial court denied Broom's motions and dismissed her claims with prejudice. In doing so, the trial court assessed court costs against the parties that incurred them and required both parties to pay their own attorney's fees. Broom and Arvidson both appeal.

Motions for Continuance and to Compel Discovery

In her only issue on appeal, Broom claims the trial court erred in denying her motions for continuance and to compel discovery. We review the ruling on a motion for continuance for an abuse of discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); State v. Bristol Hotel Asset Co., 30 S.W.3d 418, 421 (Tex. App. - San Antonio 2000, pet. filed). A trial court abuses its discretion when its decision "is arbitrary, unreasonable, and without reference to guiding [rules and] principles." Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997); Koch v. Koch, 27 S.W.3d 93, 95 (Tex. App. - San Antonio 2000, no pet.). In determining whether the trial court abused its discretion in denying a continuance, we consider the entire record. Gregg v. Cecil, 844 S.W.2d 851, 852 (Tex. App. - Beaumont 1992, no writ); Garza v. Serrato, 699 S.W.2d 275, 281 (Tex. App. - San Antonio 1985, writ ref'd n.r.e.). If the motion for continuance is verified and uncontroverted, the factual allegations in the motion must be accepted as true. Roob v. Beregshasy, 866 S.W.2d 765 , 766 (Tex. App. - Houston [1st Dist.] 1993, writ denied); Garza, 699 S.W.2d at 281.

The facts contained in Broom's verified motion for continuance are uncontroverted. (1) Broom filed her cause of action on June 11, 1999. She served Arvidson with her first set of discovery requests on September 21, 1999. Arvidson replied to her requests on October 22, 1999. In his response, Arvidson made many of the documents Broom requested available for her inspection at his residence in Jackson County, Mississippi. He then set the cause for trial on December 20, 1999. Broom responded to the trial setting, stating that she could not be ready for trial on that date, particularly because she could not review the documents at Arvidson's residence until November 11, 1999.

After Broom reviewed the documents, she determined they were inadequate. She, therefore, requested a discovery conference with Arvidson and asked that the trial date be reset. Arvidson refused both of her requests.

Broom filed a second set of discovery requests on December 6, 1999, to which Arvidson replied on December 15, 1999.

The discovery period, generally, begins the date a cause is filed and ends thirty days before trial. Tex. R. Civ. P. 190.3(b)(1)(A). A trial court may modify a discovery period at any time. Tex. R. Civ. P. 190.5. It must, however, allow additional discovery when the pleadings are amended or supplemented, or new information is disclosed in a discovery response, and the movant shows the pleadings or responses were made after or so near the deadline for discovery that the movant had an inadequate opportunity to conduct discovery related to the new matters and would be prejudiced without the additional discovery. Tex. R. Civ. P. 190.5(a). A litigant's failure to diligently use the rules of civil procedure for discovery purposes will not justify the granting of a continuance. State v. Wood Oil Distributing, Inc., 751 S.W.2d 863, 865 (Tex. 1988).

The discovery period here began on the date Broom filed her cause of action, June 11, 1999. Tex. R. Civ. P. 190.3(b)(1)(A). She did not serve Arvidson with her discovery requests until September 21, 1999, over three months after she filed her original petition. This fact alone indicates a lack of diligence on Broom's part.

Broom claims that even though discovery commenced the day she filed her original petition, the September 1, 1999 order set "out the issues to be decided in this case; whether there existed an informal marriage between the parties; and the property issues that would arise if this informal marriage were to be established." She asserts that this order "effectively allow[ed] discovery to properly begin" three-and-a-half months before the trial on the merits. In her original petition, Broom sought to establish and dissolve an informal marriage existing between herself and Arvidson. See Tex. Fam. Code Ann. 2.401(a) (Vernon 1998). Accordingly, Broom knew that whether an informal marriage existed between herself and Arvidson would be an issue before the court in this lawsuit and could have begun discovery on that issue as soon as she filed suit.

Broom has failed to demonstrate that she exercised due diligence to procure the evidence she needed for trial or that she has any need for additional time to review new information. We, therefore, cannot find the trial court abused its discretion in denying her motion for continuance. See Hall v. Rutherford, 911 S.W.2d 422, 426 (Tex. App. - San Antonio 1995, writ denied); Hatteberg v. Hatteberg, 933 S.W.2d 522, 527 (Tex. App. - Houston [1st Dist.] 1994, no writ); Rhima v. White, 829 S.W.2d 909, 912 (Tex. App. - Fort Worth 1992, writ denied).

Broom also claims the trial court abused its discretion by failing to grant her motion to compel discovery. Specifically, she claims that Arvidson's answers to her requests for discovery were inadequate and unduly prejudiced her cause of action. As with a motion for continuance, we review the denial of a motion to compel discovery for an abuse of discretion. TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991).

Broom, in her requests for discovery, asked for Arvidson's financial statements, documents related to real property in which the parties claimed an interest, certificates of deposit, insurance policies and stock statements. Arvidson answered Broom's requests, stating that those documents did not exist, were irrelevant to the subject matter of the suit, or raised various objections to the question's form.

Pretrial discovery may include any information that is relevant to the suit's subject matter and is reasonably calculated to lead to the discovery of admissible evidence. Tex. R. Civ. P. 192.3; Eli Lilly & Co. v. Marshall, 850 S.W.2d 155, 160 (Tex. 1993). Here, Broom offers nothing to explain the relevancy of the requested documents to the suit to declare an informal marriage. See Zetune v. Jafif-Zetune, 774 S.W.2d 387, 391 (Tex. App. - Dallas 1989, writ denied). Additionally, at the hearing, Broom's counsel stated, when explaining the relevancy of the requested documents, "what we're trying to do here is that we -- that that particular document may not be totally relevant, but it may lead to relevant documents that may go towards proving our case, which we have not been furnished." Broom has not shown that her motion to compel is anything more than a request to prolong a "fishing expedition." See K Mart Corp. v. Sanderson, 937 S.W.2d 429, 431 (Tex.1996). Accordingly, we cannot find the trial court abused its discretion in denying Broom's motion to compel.

Because we find the trial court did not abuse its discretion in denying Broom's motions for continuance and to compel discovery, we overrule her issue. Court Costs

In his first counter issue, Arvidson claims the trial court abused its discretion in failing to award him, as the successful party in the trial court, his costs of court.

The successful party to a suit, generally, is entitled to recover all legitimate costs it incurred. Tex. R. Civ. P.131; State Farm Mut. Auto Ins. Co. v. Grayson, 983 S.W.2d 769, 770 (Tex. App. - San Antonio 1998, no pet.). A court may, however, assess costs against the successful party, for good cause stated in the record. Tex. R. Civ. P. 141; Rogers v. Walmart Stores, Inc., 686 S.W.2d 599, 601 (Tex. 1985); Newsome v. Charter Bank Colonial, 940 S.W.2d 157, 168 (Tex. App. - Houston [14th Dist.] 1996, writ denied). We will not reverse the award absent an abuse of discretion. Newsome, 940 S.W.2d at 168.

Our review of the record reveals no good cause for the trial court's assessment of costs against Arvidson, the successful party. (2) And, the trial court did not state in the record its reasons for assessing costs as it did. Accordingly, we find the trial court abused its discretion in assessing costs against Arvidson. See Newsome, 940 S.W.2d at 168.We sustain Arvidson's issue and modify the trial court's judgment to reflect that court costs be assessed against Broom.

Attorney's Fees

In his second counter issue, Arvidson claims the trial court erred in failing to award him attorney's fees. Arvidson asserts that Broom's motions were unwarranted and frivolous, and that the trial court had no reasonable basis for denying him attorney's fees.

Attorney's fees may only be recovered from an opposing party where such recovery is provided for by statute. Tex. Civ. Prac. & Rem. Code Ann. 38.001 (Vernon 1997); Travelers Indem. Co. of Conn. v. Mayfield, 923 S.W.2d 590, 593 (Tex. 1996); Northwestern Nat'l County Mut. Ins. Co. v. Rodriguez, 18 S.W.3d 718, 720 (Tex. App. - San Antonio 2000, pet. denied). Where a party brings a suit that is groundless, the trial court may impose reasonable expenses, including attorney's fees, as sanctions. Tex. R. Civ. P. 13, 215.2(b)(8).

We have reviewed the record and find that the trial court did not abuse its discretion in refusing to award Arvidson attorney's fees. We overrule his second counter issue.

Sanctions

In his third counter issue, Arvidson claims that because Broom's appeal is frivolous, he should be awarded sanctions. Texas Rule of Appellate Procedure 45 states:

If the court of appeals determines that an appeal is frivolous, it may -on motion of any party or on its own initiative, after notice and a reasonable opportunity for response-award each prevailing party just damages. In determining whether to award damages, the court must not consider any matter that does not appear in the record, briefs, or other papers filed in the court of appeals.

Under Rule 45, we may assess damages against an appellant for bringing a frivolous appeal. An award of damages will be imposed, however, only if the record shows the appellant had no reasonable expectation of reversal and has not pursued the appeal in good faith. Campos v. Investment Management Properties, Inc., 917 S.W.2d 351, 356 (Tex. App.- San Antonio 1996, writ denied). To justify sanctions, we must determine that the appeal was taken for delay and without sufficient cause. Elm Creek Villas Homeowners Ass'n., Inc. v. Beldon Roofing & Remodeling Co., 940 S.W.2d 150, 155 (Tex. App. - San Antonio 1996, no writ). In making these determinations, we review the case from the appellant's point of view at the time the appeal was taken, and decide whether she had any reasonable grounds to believe the case would be reversed. Campos, 917 S.W.2d at 356.

Based on a review of the record before us, we cannot conclude that Broom pursued her appeal with a lack of good faith. We decline to assess damages against Broom and overrule Arvidson's third counter issue. Conclusion

We overrule Broom's claim that the trial court abused its discretion in denying her motions for continuance and to compel discovery. We sustain Arvidson's first counter issue requesting court costs. However, we overrule Arvidson's counter issues requesting attorney's fees and sanctions. Accordingly, we modify the trial court's judgment to reflect that court costs be assessed against Broom and affirm the trial court's judgment as modified. Tex. R. App. P. 43.2(b).

Karen Angelini, Justice

DO NOT PUBLISH

1. Arvidson filed no response to Broom's motion for continuance and Broom presented no evidence regarding the motion at the hearing.

2. A successful party is one who obtains a judgment of a competent court vindicating a civil claim of right. Hasty, Inc. v. Inwood Buckhorn J.V., 908 S.W.2d 494, 502 (Tex. App. - Dallas 1995, writ denied); Scholl v. Home Owners Warranty Corp., 810 S.W.2d 464, 468 (Tex. App. - San Antonio 1991, no writ).