1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

_________________

NO. 09-16-00165-CV



### _________________ MICHAEL DAVID BELLOW JR., Appellant V. LEEANN MCQUADE, Appellee

___________________ __________________ __________________ _________________ On Appeal from the 172nd District Court Jefferson County, Texas Trial Cause No. E-198,048

___________________ __________________ __________________ _________________ MEMORANDUM OPINION On February 5, 2016, the trial court si gned an Order on Motion to Vacate Ex Parte Temporary Restraining Order, Motion to Dismiss for Lack of Jurisdiction and Motion for Sanctions, whereby the trial c ourt dismissed an Ex Parte Temporary Restraining Order and sanctioned Appella nt, Michael David Bellow Jr. in the amount of $3,000.00, from which Bellow app eals. In two issues, Bellow complains of lack of notice of the hearing and sancti ons imposed against him, and that the trial2 court abused its discretion by entering the order vacati ng the ex parte temporary restraining order and entering sanctions af ter he had effectivel y nonsuited the entire cause of action. Background On January 26, 2016, Appellant, Michae l David Bellow Jr., acting pro se, filed a verified petition for an ex parte emer gency temporary restraining order and temporary injunction seeking to enjoin Leeann McQuade, DDS and Children’s Dentistry of Beaumont from performi ng a non-emergency, invasive dental procedure which required intravenous seda tion by an anesthesiologist on Bellow’s three year old son, M.D.B. 1 Bellow alleged the procedur e was without his parental consent. Bellow alleged that he conveyed his unwillingness to consent to the dentist and was told that the procedure would pr oceed without his consent on the following day. The trial court signed an Ex Parte Temporary Restraining Order on that same day, setting a hearing for a temporar y injunction for February 3, 2016. The following day, on January 27, 2016, C.H., the estranged wife and mother of the child, M.D.B., sought to interven e in the lawsuit and filed her Motion to Vacate Ex Parte Temporary Restraining Or der, Motion to Dismiss for Lack of

1 To protect the identity of the minor, we use the initials for the child and the child's mother. See Tex. R. App. P. 9.8(b)(2).3 Jurisdiction and Motion for Sanctions, as well as a Motion to Show Cause. C.H. asserted that a family law court of Ha rdin County, wherein a suit for divorce and conservatorship of the child was pending, had exclusive jurisdiction of the subject matter and parties. Fu rthermore, C.H. alleged that Bellow personally served the signed Ex Parte Temporary Restraining Order upon the dentist instead of having proper service by an authorized process se rver. Finally, C.H. alleged that Bellow intentionally misled the trial court rega rding the underlying facts surrounding the dental procedure, and C.H. represented to the trial court that Bellow had been sanctioned on more than one occasion in th e divorce action and requested the court to enter sanctions against Bellow in the underlying suit. The trial court signed an Order to Appear and Show Cause ordering Bellow to appear befo re the court on the following day, January 28, 2016, at 2:30 p.m. On January 28, 2016, prior to the show cause hearing, Bellow filed his Motion to Withdraw Petition for Temporary Injunc tion, Motion to Strike Hearing, and Motion to Rescind Emergency Temporary Res training Order. Additionally, Bellow simultaneously filed pleadings, among other things, objecting to the lack of notice for the show cause hearing and request for sanctions. At the show cause hearing, Bellow ag ain voiced his objection to the hearing or consideration by the court of the interv ention or motion for sanctions for lack of4 notice. He represented to the court that he had only been served with the pleadings and Show Cause Order on the evening before the hearing, and he had inadequate time to prepare and respond to the a llegations being lodged against him. At the conclusion of the hearing, the trial court granted the motion to vacate the ex parte temporary restraining order and the motion to dismiss for lack of jurisdiction. Further, the court pronounced that it was assessing sanctions against Bellow in the amount of $3,000.00 to “put a stop to what you’re doing in terms of all these filings.” On Februa ry 5, 2016, the trial court signed the Order on Motion to Vacate Ex Parte Temporary Restraining Or der, Motion to Dismiss for Lack of Jurisdiction and Motion for Sanctions, from which this appeal follows.
Issues Bellow complains that the trial cour t abused its discretion when it went forward with the hearing and signed th e Order on Motion to Vacate Ex Parte Temporary Restraining Order, Motion to Dismiss for Lack of Jurisdiction and Motion for Sanctions after Be llow had filed pleadings withdrawing his pleadings and effectively nonsuiting the entire cause of action. “A plaintiff has an absolute right to nonsuit a claim before resting its case-in-chief[.]” CTL/Thompson Tex., LLC v. Starwood Homeowner’s Ass’n, Inc ., 390 S.W.3d 299, 300 (Tex. 2013). But a nonsuit “shall not prejudice the right of an adverse party to be heard on a pending5 claim for affirmative relief[,]” such as a motion for sanctions. Tex. R. Civ. P. 162. To hold otherwise would defeat the purpose of sanctions. CTL/Thompson Tex., 390 S.W.3d at 300. As C.H. had f iled her intervention and moti on for sanctions prior to Bellow filing the nonsuit, the motion for sanctions survives Bellow’s nonsuit. Bellow also complains of the trial court issuing sanctions against him without sufficient prior notice. Bellow preserved th is issue by filing pleadings before the hearing objecting to the lack of notice and objecting again at the hearing to the lack of notice. 2 While Bellow may have be en referring to inadequa te time procedurally to prepare for such hearing, due process al so requires prior substantive notice before a court may sanction a party. C.H.’s motion for sanctions does not e xpressly state the legal basis on which she was seeking sanctions. C.H. allege d in her motion for sanctions that Bellow has a history of lying and playing games with the judicial system. On three occasions in th e divorce litigation[,] the Court sanctioned him for discovery abuse a nd assessed attorney’s fees. On a third occasion, the Court made a fi nding of spoliation of evidence.

2 Texas Rule of Civil Procedure 21 provi des that notice of any hearing shall be served upon the adverse part y not less than three days before any hearing, unless otherwise provided by the rules or shorte ned by the court. Tex. R. Civ. P. 21 (emphasis added). The trial court has discretion to shorten the three-day notice provision, and the trial court’s action will not be disturbed except on a showing of an abuse of discretion . Petitt v. Laware , 715 S.W.2d 688, 690 (Tex. App.—Houston [1st Dist.] 1986, writ ref’d n.r.e.).6 Because [Bellow] intentionally mi sled this Court, Intervenor asks that [Bellow] be made to pay $2,500.00 in attorney’s fees and this Court assess any other sanc tions allowable by law. C.H.’s motion makes no mention of Chap ter 10 of the Texas Civil Practice and Remedies Code, Rule 13 of the Texas Rules of Civil Pro cedure or the trial court’s inherent power to sanction. However, from the transcript of the hearing and the wording of the trial court’s order, it is cl ear that the trial court sanctioned Bellow for his “actions and dishonesty with the Cour t, both verbally and in his Verified Pleadings[,]” relying, at least in part, upon the inherent power of the court to impose sanctions. We review the trial court’s impositio n of sanctions under an abuse-ofdiscretion standard. Kings Park Apts., Ltd. v. Nat’l Union Fire Ins. Co. , 101 S.W.3d 525, 540 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (applying abuse-ofdiscretion standard to revi ew Rule 13 sanction award made pursuant to court’s inherent power); Gaspard v. Beadle , 36 S.W.3d 229, 239 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) (reviewing trial court’s award of sanctions under abuse-ofdiscretion standard); Finlay v. Olive , 77 S.W.3d 520, 524 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (determining whether th e trial court abused its discretion in awarding sanctions under Chapter 10). The te st for determining if the trial court7 abused its discretion is whether the trial court acted without re ference to any guiding rules or principles. Koslow’s v. Mackie , 796 S.W.2d 700, 704 (Tex. 1990). The due process clause of the United St ates Constitution limits a court’s power to impose sanctions. In re Bennett , 960 S.W.2d 35, 40 (Tex. 1997) (orig. proceeding); Greene v. Young , 174 S.W.3d 291, 298 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). Likewise, the due course of law provision in article I, section 19 of the Texas Constitution limit s the power to impose sanctions. Tex. Const. art. I § 19. For these reasons, impo sing sanctions require s the party who is subject to being sanctioned to be give n “notice reasonably calculated, under the circumstances, to apprise interested partie s of the pendency of the action and afford them the opportunity to present their objections.” In re L.A.M. & Assocs. , 975 S.W.2d 80, 83 (Tex. App.—San An tonio 1998, no pet.) (quoting Peralta v. Heights Med. Ctr., Inc. , 485 U.S. 80, 84 (1988)). The relevant sources for the sanctions imposed in this case—Rule 13, Chapter 10, and the inherent power of the court—e ach expressly requires that notice be given to the party who was sancti oned. Tex. Civ. Prac. & Re m. Code Ann. § 10.003 (West 2017); Tex. R. Civ. P. 13. When a party or attorney violates Rule 13, the court shall impose sanctions on a motion or on the c ourt’s own initiative, “after notice and hearing.” Tex. R. Civ. P. 13. With regard to Chapte r 10 sanctions, section 10.0038 provides that “[t]he court sh all provide a party who is the subject of a motion for sanctions under Section 10.002 notice of the allegations and a reasonable opportunity to respond to the allegations.” Tex. Civ. Prac. & Rem. Code Ann. § 10.003. “The traditional due process protections of notice and hearing are also required before a trial court can impose sanc tions on a party pursuant to its inherent power to sanction.” Greene , 174 S.W.3d at 298 (citing Kutch v. Del Mar Coll. , 831 S.W.2d 506, 511 (Tex. App.—Corpus Christi 1992, no writ)). In obtaining the ex parte Temporary Re straining Order, Bellow represented to the trial court that he did not consent to the dental procedure on his son. While C.H. produced evidence at the hearing to show that Bellow had communicated his willingness to consent to the procedure if C.H. agreed to certain conditions, it was not clear from the record whether C.H. ha d agreed to all of Bellow’s proposal. In seeking sanctions against Bellow, C.H. repres ented to the trial court that the family law court in Hardin County had exclusive continuing ju risdiction over the parties and child. However, during the show cau se hearing, C.H. ad mitted under crossexamination and counsel for C.H. stipulated on the record that only temporary orders had been entered by the fam ily law court in Hardin C ounty and such orders named C.H. and Bellow as joint managing conser vators of their son, M.D.B., with9 independent equal rights. 3 Thus, on the record before the trial court at the show cause hearing, C.H. failed to establish that any other court had continuing exclusive jurisdiction of the parties or subject matter of the petition that Bellow filed. C.H. argued to the trial court that Be llow had been sanctioned at least three times in the Hardin County divorce action. However, C.H.’s pleading failed to put Bellow on notice that his previous conduct in the pending divorce case in Hardin County would be considered as conduct th at justified imposing sanctions on Bellow regarding the restraining order he obtaine d against the dentist. While C.H.’s motion asked the trial court to a ssess “any other sanctions a llowable by law,” the motion failed to give Bellow fair no tice of the basis for the sanctions that C.H. sought to enable Bellow to mount an adequate defens e. A court is not authorized to grant sanctions under a statute or rule that is not identified in the motion for sanctions. See
Greene , 174 S.W.3d at 301 (holding trial cour t erred in imposing sanctions on grounds that were not pleaded). C.H.’s pl eading does not refer to Chapter 10, Rule 13 or the court’s inherent power to sanction. 4 Further, the trial court did not notify

3 Section 155.001 of the Texas Family Code provides that a court acquires continuing, exclusive jurisdiction over the subject matter and parties in connection with a child only on the rendition of a final order. 4 We recognize that a court can assess sa nctions based on its inherent authority sua sponte , without a motion from a party. Ne vertheless, the court must provide notice to the party that it intends to rely on its inherent authority to sanction to allow10 Bellow prior to the hearing that it intended to sanction him sua sponte under its inherent power. The motion for sanctions mu st provide notice of the conduct that the movant seeks to sanction so that the resp ondent may attempt to prepare a defense. See id. at 299–300 (holding that the family c ourt improperly sanctioned appellants for their statements made at the bankrupt cy court hearings because appellants had no notice that such conduct was unde r consideration for sanctions); Mann v. Kendall Home Builders Constr. Partners I, Ltd. , 464 S.W.3d 84, 93 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (holding that a tr ial court may not awar d Rule 13 sanctions on a basis not asserted in the motion). Thus , from the record before us, we conclude that Bellow was denied adequate substantiv e notice of the legal or factual theories that served as the basis of the trial court’s order. See Greene , 174 S.W.3d at 299– 300, n.4 (reversing sanctions order of the trial court because the court relied on grounds not included in the notice and stati ng that “the court must provide notice to the party that it intends to rely on its inhere nt authority to sanction to allow the party to prepare a defense”).

the party to prepare a defense. See Kutch v. Del Mar Coll. , 831 S.W.2d 506, 511 (Tex. App.—Corpus Christi 1992, no writ).11 Conclusion It is undisputed that Bellow received less than twenty four hours’ notice of the show cause hearing. At the time of the h earing, the only remaining issue before the trial court was the motion fo r sanctions, as Bellow nonsu ited the remaining issues and causes of action prior to the hearing. Because the Motion for Sanctions failed to provide Bellow adequate notice of his a llegedly sanctionable conduct, and because Bellow had no notice that the trial cour t intended to sanction him based on its inherent authority, we hold that the tria l court abused its discretion by imposing sanctions at the show cause hearing that occurred on January 28, 2016. We reverse that part of the Order on Motion to Vaca te Ex Parte Temporary Restraining Order, Motion to Dismiss for Lack of Jurisdiction and Motion for Sanctions of February 5, 2016, which imposed sanctions against Bellow, and we remand the case to the trial court for further proceedings as may be required. We a ffirm the remainder of the trial court’s order dismissing the entire cause of action. AFFIRMED IN PART, REVERSED AND REMANDED IN PART.

_______ _________________________ CHARLES KREGER Justice Submitted on October 10, 2017 Opinion Delivered December 21, 2017 Before McKeithen, C.J., Kr eger and Horton, JJ.