### 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. 03-09-00615- CV

Jaim e Cor tez , Appellan t

v. Mann Bracken, LL P ; and Travelers Casualty and S urety C om pany of Am eric a, Appellees

F ROM TH E CO UNTY COURT AT LAW NO . 1 O F TRAVIS CO UNTY, NO. C-1 -CV- 09- 0013 95, H ONO RAB LE J. DAVID P HI LLIP S , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellant J aime Cortez appea ls pro se from the tr i al court’s judgme nt awa rding attorney ’s fee s to appellee s Man n Bracke n, L L P, and Trave lers Casualty and Surety Company of Americ a following Cortez’s nonsuit of his claims ag ainst them under state and fede ra l co n s umer protec tion laws and from the trial court’s post-judgme nt turnover order

. In th re e issues, Cortez
cont en d s t h at the trial court err ed in (i) g ranting Mann Br acke n’s and Trave lers’ motion for attorney ’s fee s, (ii) g ranting Mann Br acke n’s and Trave lers’ application for turnover and appointing
a master in c hance ry , and (iii) denying Cortez’s motion for sanctions. For the rea sons that follow,

we dismiss Cortez’s c halleng e to the appointment of a master in chanc ery

for lac k of jurisdiction. The trial c ourt’s judg ment and turnove r orde r ar e in all other r espec ts affirme d.F ACTUAL AND P ROCEDURAL BACK GR OUND M ann Brac ken was a law firm enga g ed in the practice of providing debt collection service s to clients. Trave lers is an insurer that provided Mann Br acke n the surety bond require d of third-par ty debt collector s under the Texas Debt Collection Act. See Tex. Fin. Code Ann. § 392.101 (West 2006)

. Following debt collection eff orts by Mann Br acke n ag ainst Cortez, Cortez filed suit ag ainst Mann B rac ken and T rave lers asse rting claims under sta te and fede ral consumer protec tion laws, including the Fa ir Debt Collection Practice s Act (F DCPA) and the Fa ir Credit Reporting Act (F CRA). See generally 15 U.S.C. §§1692–1692p (West 2009), 1681-1681x (West 2009 & Supp. 2010). M an n Br acke n’s and Trave lers’ first amende d answe r i ncluded a claim for attorney ’s fees pursuant to the F DCPA and FCRA on the g round that Cortez ha d broug ht the suit in bad fa ith and for the pur

pose of ha

rassment. See id. §§ 1692k(a) (3), 1681n( c), 1681o( b) (West 2009). Mann Br acke n and Trave lers broug ht a no-evide nce motion for summary judgme nt and set it for hear ing. Prior to the hear ing, Cortez filed a nonsuit and obtained an order dismiss ing the suit without prejudice

. See Tex. R. Civ. P. 162. Mann Br acke n subsequently filed a motion for attorney ’s fee s based on their claim that Cortez had broug ht suit under the FDCPA and FCRA in bad faith and for the purpose of hara ssment. See 15 U.S.C. §§ 1692k(a) (3), 1681n(c) , 1681o(b). Cortez filed a reply , which includ ed a motion for sanctions pursuant to section 10.002 of t he Tex as C ivil Practice and Remedies Code. See Tex. C i v . P ra c. R em . Code Ann. § 10.002 (West 2002). Following a hear ing, which Mann Br acke n and Trave lers attended in pe rson, throug h counsel, and Cortez attended pro se by telephone, the trial cou rt issued an order , which included finding s that Cortez had eng ag ed in a pattern of frivolous filings and had broug ht his claims in bad faith and for

2the purpose of hara ssment. The order g rante d Mann Br acke n’s and Trave lers’ reque st for attorney ’s

fee s and denied Cortez’s motion for sanctions. The trial court subsequently rende red judgme nt

awa rding attorney ’s fee s to M an n Bracke n and Trave lers in the amount of $33,970, including
amounts for appea l to this Court and to the supreme court, with remittiturs in the event appellate fee s

wer e not incurr ed.

After Cortez’s motion to modify the judgme nt was overr uled by operation of law, he filed a notice of appea l on September 23, 2009. On October 9, 2009, Mann Br acke n and Trave lers filed an application for turnover and appointment of rec eiver pursuant to section 31.002 of the Texas Civil Practice and Remedies Code, see id. §§ 31.002(b)( 1), (3) (West 2008), further reque sting that the receive r be ap p ointed master in chanc ery pursuant to Texas Rule of C ivil Procedur e 171. See Tex. R. Civ. P. 171. The recor d does not contain an order on these requests, but t h e d o ck et sheet ref lects that on October 30, 2009, the trial court denied Cortez ’s m otion for continuance , held a hear ing which Cortez did not attend, and g ranted M an n Br acken’s and Trave lers’ application for
turnover and motion for appointment of rec eiver

. C ortez asser ts that the trial court appointed a master in cha

ncer y as re quested by

Mann B rac ken and T rave lers.

DISCUSSIO N Stand ard of Review

I n his first issue prese nted, C ortez complains that the t rial court err ed in awa rding attorney ’s fe es to Mann B rac ken and Trave lers under the FD CPA and FCRA bec ause the y had no claim for aff

irmative relief pending at the time of his nonsuit, there was no deter mination on the merits, and they wer e not “prevailing parties.” He a lso arg ues t hat t here was lega lly and factually

3insufficient evidenc e to suppor t the trial court’s finding that he broug ht his claims in ba d faith and for the purpose of hara ssment. We revie w an awa rd of attorney ’s fee s for abuse of discretion. Ridge Oil Co. v. Guinn Invs., Inc. , 148 S.W .3d 143, 163 (Tex. 2004). The te st for abuse of di scre tion is whether the trial court’s ruling is arbitra ry , unrea sonable, or without r efe renc e to any g uiding rules or leg al principles. K-Mart Corp. v. Honey cutt , 24 S.W .3d 357, 360 (Tex. 2000) (per curiam). T h i s i ssue also conce rns interpre tation of the rules of civil proce dure and statutory construction, matters which we revie w de novo. In re Christ u s Spohn Hosp. Kelberg , 222 S.W .3d 434, 437 (Tex. 2007); Texas Mun. Power Agenc y v. P u b lic Util. Comm’n , 253 S.W .3d 184, 192 (Tex. 2007). Of primary conce rn is the express languag e of the rule or statute. See Galbr a i t h E n g ’g Consultant s, Inc. v. Pochuc ha , 290 S.W .3d 863, 867 (Tex. 2009); In re Christ us Spohn Hosp. Kelberg , 222 S.W .3d at 437. We apply the plain or literal meaning of the text unless a differ ent meaning is supplied by leg islative definition or is appar ent from the context, or the plain meaning leads to absur d results. Marks v. St. Luke ’s Episcopal Hosp. , 319 S.W .3d 658, 663 (Tex. 2010); In re Christus Spohn Hosp. Kelberg , 222 S.W .3d at 437.

We revie w a trial co u rt’s finding s of fac t for leg al and fac tual sufficie ncy of the evidenc e by the same standards applied to a jury verdic t. Ortiz v. Jones , 917 S.W .2d 770, 772 (Tex. 1996). I n revie wing the legal sufficie ncy of the evidenc e, we view the evidenc e in the light most favorab l e t o the judgme nt, cre diting favor able evidenc e if a rea sonable fac t finder could, and disreg arding contra

ry evidenc e unless a r easona ble fa ct finder could not. City of Keller v. W ilson , 168 S.W .3d 802, 807 (Tex. 2005). The test is “ whether the evidenc e . . . would enable rea sonable and fair- minded people t o reach the [j udg ment] under revie w.” Id. at 827. I n revie wing fac tual

4suffic i en cy o f the evidenc e, we consider and weig h all of the evidenc e in the rec ord, and we may

overturn a j udgm en t only if it is so ag ainst the gre at weight and preponde ranc e of the evidence as to be clea rly wrong and manife stly

unjust. Cain v. Bain , 709 S.W .2d 175, 176 (Tex. 1986). No affirmat

ive c laim for relief I nitially , C o rt ez contends that Mann Br acke n and Trave lers are not entitled to attorney ’s fe es bec ause the y had no claim for aff irmative relief pending at the time of his nonsuit. The rec ord shows that Cortez participa ted in the post-nonsuit hear i n g o n M an n Br acke n’s and Trave lers’ motion without urg ing this argument

. T o p reserve a complaint for appellate revie w, a party must prese nt a timely reque st, objection, or motion, state the specific g round s there for, and obtain a ruling

. S

ee Tex. R. App. P. 33.1; Bushell v. Dean , 803 S.W .2d 711, 712 (Tex. 1991). Having participa ted in the post-judgme nt hear ing on this issue without objection, Cortez has waived this arg ument. See Tex. R

. Ap p . P

. 3 3

. 1 ; Bushell , 803 S.W .2d at 712. Even if Cortez had not

1 waived this argument, howeve r, Rule 162 of the Texas Rules of Civil Procedur e expressly provides that a dismiss al under the rule does not aff ect pending motions for atto rn ey ’s fee s. Tex. R. Civ. P. 162; see Travelers Ins. Co. v. Joachim , 315 S.W .3d 860, 864 (Tex

. 2010) (cour t reta ins power to addre ss collater al matters liste d in Rule 162); In re Christ us Spohn Hosp. Kelberg , 222 S.W .3d at 437 (whe n rule is unambig uous, we construe it acc ording to its plain meaning ). Mann Br acke n’s and Trave lers’ claim for attorney ’s fee s contained in their amende d answe r was pending

A pro se litigant is held to the same standards as licensed attorney s and must comply with 1 the applicable laws and rules of proc edure

. W heele r v. Gree n , 157 S.W .3d 439, 444 (Tex. 2005). 5at the time of Cortez’s nonsuit, and there fore the dismiss al had no eff ect on the claim. See Tex. R. Civ. P . 162. Attorn ey’ s fee s un der the FDCPA We turn, then, to Cortez ’s ar gu m ent that Mann Br acke n and Trave lers wer e not entitled to attorney ’s fee s under the FDCPA. Cortez contends that under the FDCPA, the court may

awa rd attorney ’s fee s only after a resoluti on of the merits and only to a preva iling defe ndant. Be cause he nonsuited his claims, Cortez contends, the trial court never rea ched the merits, and Mann Br acke n and Trave lers did not preva il. Thus, Cortez ass er t s , t h e t rial court err ed in awa rding attorney ’s fe es under

the FD CPA. The F DCPA provides in releva nt part: (a) Amount of damag es Ex cept as otherwise provided by this section, any debt collector who fails to comply with a

ny provision of this subcha pter with r espec t to any person is liable to such per son in an amount equa l to the sum of—

. . . . (3) in the case of any succe ssful action to enfor ce the fore g oing liability , the cost of the action, toge ther with a re as o nable attorney ’s fee as deter mined by the court. On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court ma y a w a r d t o the defendant attorney’s fee

s in relation to t he work ex pended and c osts. 15 U.S.C. § 1692k(a)(3) (empha sis added).

C o rt ez argue s that an awa rd of attorney ’s fee s depends on two components: a resolution on the merits and a preva iling defe ndant. Howeve r, the express lang uag e of section 1692k

6contains no such require ments. See id. The awa rd of attorney ’s fee s permitted by section 1692k is conditioned only on a finding by the court that the action was brou g ht in bad faith and for the purpose of hara ssment. Id. Upon such a finding , the court has the discretion to awa rd the defe ndant attorney ’s fee s. See id. (cour t may awa rd defe ndant attorney ’s fee s) (empha sis added)

. There is no additional require ment that the merits of the case be resolved or that the defendant prevail. Thus, based on the plain lan gu age of section 1692k(a) (3), we conclude that Cortez’s construction is

err oneous. See Marks , 319 S.W .3d at 663; In re Christ us Spohn Hosp. Kelberg , 222 S.W .3d at 437. Bad faith an d harassm ent Cortez also contends that there was insufficient evidenc e to support the trial court’s finding of bad faith and hara ssment. The rec ord indicates that Cortez had previously filed suit ag ainst Mann Br acke n under the FDCPA in the justice o f t he peac e court, which g rante d Mann Br acke n’s no-evide nce summary judgme nt less than one month prior to Cortez’s filing this suit; that sanctions wer e awa

rded ag ainst Cortez in the prior suit; that Cortez nonsuited his claims in this suit afte r being serve d with discovery but be fore the answe rs wer e due a nd afte r Mann B rac ken filed a no-evide nce motion for summ ary j udg ment; and that Cortez subsequently filed sui t ag ainst Mann Br acke n and Traveler s in feder al cour t after nonsuiting his claims in this case. On this re cord, w e conclude that the evidence was sufficie nt to allow reasonable and fair-minded people to rea ch the finding rea ched by the trial court, see City of Keller , 168 S.W .3d at 827, and that the evidenc e was leg ally sufficie nt to support the trial court’s finding

. I n addition, afte r revie wing all of the evidenc e in the rec ord, we cannot say t h at t he trial court’s finding is so ag ainst the g reat weig ht and preponde ranc e of the evidenc e as to be clea rly wrong and manifestly unjust, see Cain , 709 S.W .2d

7at 176, and hold that the evidence was fac tually sufficie nt to support the trial cour t’s finding

. We there fore conclude that the trial co u rt d id not abuse its discretion in awa rding Mann Br acke n and Trave lers attorney ’s fee s pursuant to their claim under the FDCPA. Our di s position of this issue rende rs considera

tion of the awa

rd of attorney ’s fee s under the FCRA unnece ssary . We overr ule Cortez’s first issue. 2

Turnover Order

I n his second issue, Cortez complains that the trial court err ed in signing a postjudgme nt turnover order under section 31.002 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 31.002(b)( 1). Section 31.002 allows court-or dere d relief to a judgme nt cre ditor to satisfy a judgme nt, including the turnover of nonexempt p roperty

. See id. “Althoug h most wri t s an d o rders in aid of execution are not appea lable, the supreme court has held that a turnover order is a final, appea lable judgme nt.” Bahar v. L yon Fin. Servs. Inc. , 330 S.W .3d 379, 388 (Tex. App.—Austin 2010, no pet.) (citing Schultz v. Fifth Judicial Dist. Court of Appeals , 810 S.W .2d 738, 740 (Tex. 1991) (orig

. proce eding ), abrogated on other grounds by In

Cortez also asser

ts that the amount of the attorney ’s fee s awa rded is excessive. Howeve r, 2 the only arg ument and authority he offe rs in support of this assertion addre ss the conduct r equire d to support a finding of bad faith and hara ssment. Having cited no evidenc e in t h e re cord nor any authority as to why the amount of attorney ’s fee s awa rded is excessive, Cortez has wa i v ed t his arg ument. See Tex. R. App. P. 38.1( i). Even if he had not waived the argument, the rec ord shows that at the hear ing on the motion for attorney ’s fee s, Cortez neither challeng ed the testimony of Mann Br acke n’s and Trave lers’ attorn ey n o r o ff ere d contra dictory testimony

. The testim ony offe red by Mann Br acke n and Trave lers was clea r, direc t, positive, a

nd uncontra dicted, and the trial court did not abuse its discretion in awa rding attorney ’s fee s based on the testimony

. See Ridge Oil Co. v. Guinn Invs., Inc. , 148 S.W .3d 1 43, 163 (Tex. 2004); Ragsdale v. Progressive Voters League , 801 S.W .2d 880, 882 (Tex. 1997). 8re Sheshtawy , 154 S.W .3d 114, 124-25 (Tex. 2004)). We revie w a trial court’s decision on

a turnover order under an abu s e o f discretion standard. Beaumont Bank, N.A. v. Buller , 806 S.W .2d 223, 226 (Tex. 1991) ; Moye r v. Moye r , 183 S.W .3d 48, 51 (Tex. App.—Austin 2005, no pet.). I t is Cortez’s burden as appellant to bring forwa rd a sufficie nt rec ord to demonstrate

er ro r. Enterprise Leasing Co. v. Barrios , 156 S.W .3d 547, 549 (Tex. 2004). Absent a co m p l et e

rec ord of the t rial court proce eding s, an appell ate court must presume that the om itted documents support the t rial court’s judgme nt. Id. at 550. Cortez has fa iled to provide this Court with a copy of the transcr ipt of the hear ing on t h e application for turnover or a copy of the turnover order

. There fore , in the absenc e of the transcr ipt and order , we presume that the omitted evidenc e supports the turnover order and the trial court did not abuse its discretion. See id. ; K-Mart Corp. , 24 S.W .3d at 360. 3

C o rt ez ’s second issue also includes a complaint that the t rial court err ed in appointing a

3 master in chanc ery without a showing of exceptional circ umstances or g ood cause , as required by Texas Rule of Civil Procedur e 171. See Tex. R. C iv. P. 171. W e re ad this issue as a c halleng e to the trial court’s order to the extent it g rante d power s of a master in chanc ery to the rec eiver , not a s a challeng e to the appointment of a rec eiver itself, whi ch i s go v erne d by differ ent authority

. Howeve r, although t his Cou rt h as exercised jurisdiction over the post-judgme nt appointment of a rec eiver , we have no appellate jurisdiction to revie w an order appointing a master in chanc ery even when the master is appoint ed at the same time as a rec eiver and in the same order mandating turnover. Bahar v. Lyon Fin. Servs. Inc. , 330 S.W .3d 379, 385, 388 (Tex. A pp.—Austin 2010, no pet.); Moye r v. Moy er , 183 S.W .3d 48, 58 (Tex. App.—Austin 2005, no pet.). The proper vehicle to challeng e a post-judgme nt order appointing a master in c hance ry is a petition for writ of mandamus. See Simpson v. Canales , 806 S.W .2d 802, 812 (Tex. 1991); Bahar , 330 S.W .3d at 388 (post-judg ment order appointing master in chanc ery , even one that is embedde d in a turnover and rec eiver ship order , is interlocutory and unappea lable but m ay b e ch al leng ed by mandamus); Sheikh v. Sheikh , 248 S.W .3d 381, 394 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (same) . Acc ording ly , we a re w ithout jurisdi ction to consider this aspec t of Cortez’s second issue.

9Motion for San ctions I n his third issue, Cortez contends that the trial court err ed in deny ing his motion for sanctions ag ainst Mann Br acke n and Trave lers pursuant to section 10.002 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 1 0

. 0 0 2. The rec ord reve als that Cortez filed his motion for sanctions in reply to M an n Br ac k en’s and Trave lers’ motion for attorney ’s fee s. The rec ord further shows that at neither the hear ing on the motion for attorney ’s fee s nor in his motion t o modify the judgme nt did Cortez offer a ny argument or evide nce in support of his claim for sanctions. Having failed to urg e his motion at the hear ing and obtain a ruling or prese nt any evidenc e to the trial court on this issue, Cortez has wa ived his reque st for sanc tions. See Tex. R. App. P. 33.1; Bushell , 803 S.W .2d at 712. We overr ule Cortez’s third issue.

CONCLUSION W e dismiss Cortez’s challeng e to the trial court’s appointment of a master in chanc ery for lack of jurisdiction. The trial court’s judgme nt and turnover order ar e in all other respe cts aff

irmed. 4

Cortez ha s filed three reque sts f or judicial notice, and Mann Br acke n and Trave lers have 4 filed a motion to dismis s, all of which a re pe nding be fore this Court. W e deny these motions. 10__________________________________________ Melissa Goodwin, Jus tice Be fore J ustices Pury ear , Henson, a nd Goodwin Affir med in part; Dismissed in part Filed: September

22, 2011

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