### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00280- CV

Roger Slu der, Appellant

v. Carol Joyce Ogden, App ellee

F ROM TH E DISTRI CT COURT O F B LANCO CO UNTY, 424 TH JUDICI AL DISTRICT NO. CV0687 5, H ONO RAB LE DANIEL H . M ILLS, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N
Appellant Roge r Sluder filed suit ag ainst Carol J oy ce Og den alleg ing an owner ship interest in a trac t of land and reque sting both an i n j u n ct ion ag ainst Og den’s sale of the land and unspecifie d damag es. Og den filed a motion for Rule 13 sanctions ag ainst Sluder and his a ttorney , claiming that the petition was g roundless and filed in bad faith beca use Sluder had no interest in the
proper ty

. See Tex. R. Civ. P. 13. After a hear ing, the trial court dismiss ed the action with prejudice and g rante d the m otion for sanctions, order ing Sluder and his attorney to pay $2,000 in attorney ’s fee s to Og den’s c ounsel. Sluder appe als, alleg ing tha t the trial court a bused its discr etion beca

use (1) the petition was not g roundless, (2 ) S l uder did not sign the pleading s, and there fore sanctions
ag ainst him wer e improper, and (3) the sanctions violated the Texas Constit ution. We aff irm the trial court’s or der.BACK GR OUND On November 4, 2009, Sluder filed an or igina l petition for damag es and injunctive relief in Bla

nco County District Cour t

. T h e p et i tion alleg ed that Carol J oy ce Og den, Sluder’s mother, was attempting to sell a 10.66-ac re trac t of land in which Sluder claimed an o wn ership interest (“Tr act 58”). Sluder reque sted that the court issue an injunction of the sale and unspecifie d damag es. He attache d a war ranty deed, rec orded in Bla nco County in 2005, that convey ed Trac t 58 solely to Ogd en . S l u der did not prese nt any other fac ts in his petition to support his alleg ed

owner ship interest in the proper ty . Og den then filed a

n answe r and motion for sa nctions pursuant
to Rule 13 of the Texas Rules of Civil Procedur e, seeking sanctions ag ainst Sluder for filing, and his attorney for signing , a pleading that was g roundless and broug ht in bad faith. See id

. I n support of the m o t i on for sanctions, Og den and her husband, Sy dney Og den, provided aff idavits stating that they wer e “titl ed and eq u i t ab l e co-owner [s] ” of Trac t 58. Og den also attache d an affidavit by the previous owner of the proper ty stating that Og den had purcha sed the proper ty pursuant to a contra ct for deed, paid for the proper ty in full, and fulfilled all obliga tions under the contra ct. Sluder’s attorney responde d by filing a motion to quash Ogd en ’s s anctions motion and requesting his own Rul e 13 sanctions “bec ause the Def endant has prese nted false and misleading aff idavits for the fac tfinder.” The trial c ourt held a sing le hea ring on both motions for sa nctions. At the hearing , Sluder reve aled that his primary evidenc e as to his interest in Trac t 58 was the contra ct for deed, executed in 1984, in which Og den and Sluder ag ree d to make pay ments
to the seller in exchang e for title to the proper ty once all pay

ments had been made. Og den testified that she tender ed all pay

ments on the contra ct. Sluder conce ded that he had no eviden ce to the

2contra

ry and that the 2005 war

ranty deed was in Og den’s name alone. Howeve r, Sluder testified that he believed he had an interest in the property th ro u gh a verbal agr eeme nt with Og den reg arding a
renta l proper

ty that she manag ed. He claimed that Og den collecte d rent for a duplex that he owned and that Og den used this rent money to satisfy the contra ct for deed. Sluder acknow ledg ed that the duplex was in Og den’s name, and offe red no proof, apar t from his t es timony , that he owned the duplex. Wit h respe ct to Sluder’s asser tion that Og den intended to sell the propert y , Og den testified that the prope rty was not for

sale, nor ha d she eve r attempted to sell it in the past. Sluder

conce ded that his only evidenc e in suppor t of his c laim tha t O g den was selling Trac t 58 was that a neig hbor had me ntioned to him that Ogde n was intere sted in selling the pr operty

.

At the conclusion of t he hearing , the t rial court issued an order fi n d i n g t h at S luder filed, and his attorney signe d, pleading s that wer e g roundless, broug ht in bad faith, and broug ht for the purpose of hara ssment. I t then dismiss ed the case with prejudice and order ed Sluder and his attorney to pay $2,000 to Og den’s c ounsel as attorne y ’s fe es. This appe al followed.

STANDARD OF REVIEW We revie w a trial court’s awa rd of sanctions for an abuse of discretion. Low v. Henry , 221 S.W .3d 609, 614 (Tex. 2007). I n matters committed to a district cour t’s discretion, the test is whether the ruling was unrea sonable or arbitra ry or whether the court acte d without ref ere nce to any g uiding r ules or principles. Lake Travis I ndep. Sch. Dist. v. Lovelace , 243 S.W .3d 244, 249 (Tex. Ap p.—Austin 2007, no pet.). I n deciding whether the denial of sanctions constitutes an abuse o f discretion, we examine the entire rec ord, revie wing the conflicting evidenc e in t h e l ight most
3favor able to the trial court’s ruling and draw ing all rea so n ab l e i nfer ence s in favor of the court’s

judgme nt. Id . at 250.

DISCUSSIO N

Be cause Sluder’s brief identifies both Sluder and his attorney as appellants, we beg in by addre ssing whether Sl uder’ s at t o rn ey is proper ly befor e us as an appellant in this case . Courts have he ld that nonparties have a rig ht to a ppeal f rom a judg ment if they

clea rly have a n interest in the judgme nt and are bound by it. See Tor r i n g t o n Co. & Intersoll-Rand Corp. v. Stutzman , 4 6 S.W .3d 829, 843 (Tex. 2000) (stating that person whose interest is prejudice d by erro r i n judgme nt has standi n g t o appeal judgme nt); In re Evans , 130 S.W .3d 472, 478-79 (Tex. App.—Houston [14t h Dist.] 2004, orig

. proce eding ) (holding nonparty with interest i n judgme nt had rig ht to appea l when bound by judgme nt); Jernigan v. Jernigan , 677 S.W .2d 137, 140 (Tex. App.—Dallas 1984, no wr it) (holding nonpa rty bound by judgme nt was entitled to appe al). Be cause the trial court’s order require s that “Rog er Sluder AND his attorney of rec ord” pay $2,000
to Og den’s attorney , Sluder’s attorney has an interest in the order and is bo u n d b y i t

. T h erefore , Sluder’s attorne y

has standing to appea l the trial court’ s imposit ion of sanctions ag ainst him. I n addition to standing, howe ver, a ny party seeking to a lter a trial c ourt’s judg ment

or other appea lable order must file a notice of appea l. Tex. R. App. P. 25.1( c). The only notice of
appea l filed in this case was on behalf of Sluder, stating, “Plaintiff, Roge r Sluder, here by g ives notice of his appea l from the Trial Court J udg ment dated J anuar y 29, 2010.” The notice of appea l does not list his attorney as an appellant, nor did Sluder’s attorney file a notice of appea l on his own behalf

. We ag ree with other courts of appea ls that have held that an attorney who wishes to appea l sanctions
4must either join in a party ’s notice of appea l or file his own. See Matbon, Inc. v. Gries , 287 S.W .3d 1 739, 740 (Tex. App.—Eastland 2009, no pet.) (dismissing appea l of attorney sanctions for want of jurisdiction when p arty lacke d standing to appea l and notice of appea l did not list attorney as appellant) ; Niera v. Frost Nat’l Bank , No. 04-09-00224- CV, 2 0 1 0 Tex. App. L EXI S 1709, at *4 (Tex. App.—San An t o n io Mar. 10, 2010, pet. denied) (mem. op.) (same) ; Benav ides v. Knapp Chevrole t, Inc. , No. 01-08-00212- CV, 2009 Tex. App. L EXI S 1044, at *7-8 (Tex. App.—Houston [1st Dist.] Fe b. 12, 2009, no pet.) (mem. op.) (holding that appellate court lac ked jurisdiction to decide appeal of attorney who had not joined in party ’s not ice of appea l). Be cause Sluder’s attorney failed to proper l y fi le a notice of appea l, this Court lacks jurisdiction over his
appea l. See Tex. R. App. P. 25.1( c). We the ref ore w ill review only

the trial cour

t’s imposit ion of sanctions ag ainst Sluder.

Turning to the issues on appea l, Sluder claims that the trial court abused its discretion in imposing sanctions under Rule 13 beca use (1) Sluder’s petition was not g roundless, (2) he did not

s ign the petition and thus could not be sanctioned, and (3) the trial court’s order violated the Texas Consti tution.

Rule 13 states, in releva

nt part:

The signa tures of attorney s or parties constitute a cer tificate by them that they have rea d the pleading , motion, or other paper ; that to the best of their k n o wl ed g e,

The Texas Supreme Court has expres s l y d ec l i n ed to decide whether an attorney must 1 perf ect a separ ate appea l apar

t from that perf

ecte d by his client. Braden v. Downey , 811 S.W .2d 922, 928 n.6 (Tex. 1991) (“We express no opinion o n t h e q uestion whether , in order to seek review of s an ct ions by appea l, an attorney must perf ect a separ ate appea l apar t from that perf

ecte d by his client.”)

. 5information, and belief formed afte r rea sonable inq u i ry the instrument is not

g roundless and broug ht in bad faith or g roundless and broug ht for the purpose of hara ssment.

. . . I f a pleading , motion or other paper is signe d in violation of this rule, the court, upon motion or upon its own initiative, afte r notice and hear ing, shall impose an appropriate sanction available under Rule 215, upon the person who signe d it, a repr esente d party , or both.

Tex. R. Civ. P. 13. Rule 215 allows a court to impose sanctions which include, among other things, dismiss al of the proce eding with or without prejudice and attorney ’s fee s. T ex . R. Civ. P. 215.2(b)( 5), (8)

.

I n h i s fi rs t issue on appea l, Sluder arg ues that the trial court abused its discretion beca use the pleading was not g roundless. “Gr oundless” for purposes of Rule 13 means no basis in law or fac t and not war

rante d by g ood faith arg ument for the extension, modification, or reve rsal of exis ting law. Tex. R. Civ. P. 13; see also Lovelace , 243 S.W .3d at 254-56. To deter mine whether

a pleading is g roundless, the trial court employ s an objective analy sis, asking whether the party and counsel made a rea sonable inquiry into the leg al and fac tual basis of the claim. In re United Servs. Auto. Ass’n , 76 S.W .3d 112, 115 (Tex. App.—San Antonio 2002, orig

. proce eding ). I n its inquiry , th e co u rt l o o k s to the fac ts available to the litigant and the circ umstances at the time the suit was filed. Id

. A trial court may not ba se Rule 13 sanctions on the leg al merit of a pleading or motion. Lovelace , 243 S.W .3d at 254 (citing Emmons v. Purser , 973 S.W .2d 696, 700 (Tex. App.—Austin 199 8 , no pet.)). Mere ly filing a motion or pleading that the trial court denies does not entitle the opposing pa

rty to Rule 13 sanctions. Id

. Sluder arg ues that he proper ly alleg ed “a particula r piece of rea l estate which he was attempting to purcha se under a Contract for Dee d.” At the hear ing, Sluder himself testified that the

6contra ct for de ed wa s the primary evidenc e supporting his alleg ed owne rship interest in Tra ct 58.

Howeve r, a contra ct for deed merely establishes conditi ons prec edent to a ti tle’s t ransf er. Grave s

v. Diehl , 958 S.W .2d 468, 470-71 (Tex. App.—Houston [14t h Dist.] 1997, no pet.). Title does not transfe r to the buy er until these conditions a re met, at which point another document is r equire d to transfe r leg al title. See Flores v. Millennium Interests, Ltd. , 185 S.W .3d 427, 429 (Tex. 2005) (“A
contract fo r d ee d , u nlike a mortg ag e, allows the seller to reta in title to the proper ty until the purcha ser h as p aid for the proper ty in full.”); Jennifer Y

arto & DTRJ Invs., L.P. v. Gilliland , 287 S.W .3d 83, 90 (Tex. App.—Corpus Christi 2009, no pet.) (“[L ]ega l title does not pass under a
contra ct for deed until the deed is actua lly delivere d to the purcha ser . . . .”). Sluder admitted that he never made any pay ments on T ra ct 5 8 , while Og den testified that she made all pay ments

on the proper

ty

. Sluder was also awa re of the exis tence of a war ranty deed g iving Ogde n sole title to the land.

Sluder alleg ed at the hear ing that he had an interest in Trac t 58 beca use Og den used
renta l income from a duplex, alleg edly owned by S l u d er , t o m ak e pay ments on Trac t 58. Sluder admitt ed , h oweve r, that the duplex was now in Og den’s name and that he had no evidenc e, other than his “ word,” that he had a n interest in the duplex. Sluder also neve r asse rted a ny fac ts, e ither 2 in his petition or at the hear ing, that would support his alleg ation that Og den used renta l income from the duplex to fund pay

ments for Trac t 58. Ba sed on the circ ums tance s known to Sluder and his attorney at the time of filing, as well as those they should have known via a rea sonable inquiry , the

Sluder testified that he transferr ed t h e renta l proper ty to Og den in order to protec t the 2 proper ty while Sluder ser

ved time in jail. 7trial court could have rea sonably conclude d that Sluder’s claim of title had no arg uable basis in law

or fa ct and wa s theref

ore g roundless. Sluder’s f irst issue on appea l is overruled. 3
I n his second point on appea l, Sluder arg ues that the trial court abused its discretion by g ranting Rule 13 sanctions ag ainst him b ecause he did not sign the pleading

. Rule 13 permits sanctions upon “the person who signe d [t he pleading ], a repr esente d party , or both.” Sluder, howeve r, contends that he was entitled to rely on the advice of his attorney in filing the pleading and should not have been sanctioned. Specifica lly , Sluder relies on Glass v. Glass , 826 S.W .2d 683 (Tex. App.—Texarkana 1992, no writ), a divorce case in which the attorney filed sever al frivolous pleading s and a letter threa tening leg al action. Id

. at 685-86. The Glass court held that the trial court

err ed in finding Glass culpable under Rule 13 f or the a cts of her

attorney , as a party should not be punished for c ounsel’s conduc t unless the party is impl icated a

part fr om ha

ving e ntrusted its leg al
repr esenta tion to counsel. Id. at 687-88; see also Transamerican Natural Gas v. Powell , 811 S.W .2d 913, 917 (Tex. 1991).

Her e, Sluder and his attorney are both culpable for the g roundless pleading

. Sluder knew that he had never made a pay ment on the prop er t y , t h at a war ranty deed rec orded in Bla nco County named Og den as sole owner of the land, and that, as the contra ct for deed indicated, title to

Whil e Og den arg ues on appea l that Sluder’s pleading s failed to state a cause of action, our 3 aff irmation of the trial court’s sanctions rests on Sluder’s inadequa te leg al theory and is independe nt of any defe cts in the pleading for fa i l ure to state a cause of action. See W inters v. Parker , 178 S.W .3d 103, 105-06 (Tex

. App.—Houston [1st Dist.] 2005, no pet.) (citing Massey v. Armc o Steel Co. , 652 S.W .2d 932, 934 (Tex. 1983)) (“U nder the Texas Rules of Civil Procedur e, the proper way for a defe ndant to urg e that a plaintiff has failed to plead a cause of ac t ion is by specia l exception.”); see also Friesenhahn v. Ryan , 960 S.W .2d 656, 658 (Te x . 1998) (holding that trial court must g ive par

ty opportunity

to replea d befor e dismissing ca se via spec ial exception).

8the l an d would not be transfe rre d until all pay ments wer e made. See In re Bank One, N.A. , 216 S.W .3d 825, 826 (Tex. 2007) (“We presume that ‘a party who signs a contra ct k n ows its contents.’” (quoting Cantella & Co. v. Goodwin , 924 S.W .2d 943, 944 (Tex. 1996)))

. Additionally ,
as the plaintiff, it was Sluder who ultimately decide d whether or not to initiate a lawsuit. His lawy er did not act unilatera lly in filing the initial petition. Given Sluder’s role in the filing of the petition,

we conclude that the t ri al co u rt could have rea sonably found that Sluder did more than mere ly “entr ust his leg al re prese ntation to counsel,” making him elig ible for sanctions. Sluder’s second point on appeal is over

ruled. Sluder arg

ues in his third point on appea l that the trial court’s sanctions violated the Texas Constit ution. Sluder contends that t h e s an ct ions violate article I , section 13 of the Texas Const i t u t i o n , wh i ch states, “all courts shall be open, and ever y person for an injury done him

. . . shall have reme dy by due course of law.” Tex. Const. art. I , § 13. Thoug h due proce ss, a s applied
to sanctions, does require a rea sonable rela t i o n s h i p betwee n the harm done and the sanctions addre ssed, see Glass , 826 S.W .2d at 688, Sluder has prese nted no evidenc e, either at the hear ing or i n his brief, which sug g ests that the sanctions imposed lacke d a rea sonable rela tionship with t h e harm done. Fur

thermore , courts have upheld sanctions of attorney ’s fee s far in excess of the $2,000 order ed here

. See id. at 690 (upholding attorney ’s fee s sanctions of $22,500 and $9,650 in divorce
proce eding ); Alsheikh v. Dyab , No. 07-08-00162- CV, 2010 T ex. App. L EXI S 2511, at *19 (Tex. App.—Amar illo Apr. 7, 2010, no pet.) (mem. op.) (upholding attorney ’s fee s sanction of $22,044.45 afte r two-da

y bench tr ial). We overr

ule Sluder’s third point of er ror.

9Finally , in her brief, Og den reque sts additional sanctions for filing a frivolous appea l

pursuant to Texas Rule of Appellate Procedure 45. See Tex. R. App. P. 45. The g ranting of sanctions is within the discretion of the appellate court. Id

. We exercise this discretion and decline
to assess further sanctions, as the sancti o n s al ready imposed are sufficie nt to acc omplish their
purpose of punishing the prese nt conduct and deter ring simil ar conduct in the future. See Delgado v. Me thodist Hosp. , 936 S.W .2d 479, 488 (Tex. App.—Houston [14t h Dist.] 1996, no writ).

CONCLUSION Having overr

uled all of Sluder’ s points on appea l, w e aff irm the trial cour

t’s order

.

__________________________________________ Diane M. H enson, Jus tice Be fore Chief J ustice Jones, J ustices Pemberton a nd Henson Affir med Filed: January

13, 2011

10