### 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. 03-17-00273- CV

Daniel J. Caldw ell, Appellan t

v. Jennif er Z im m erm an, App ellee

F ROM CO UNTY COURT AT LAW NO . 4 O F WI LLIAM SO N COUNTY NO. 17- 0078 -CC4, HO NORAB LE JAM ES E. M ORGAN, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N

Daniel Caldwell—a litigant well known to this Court— ap p ea rs befor e us ag ain

s eeking relief with respe ct to two previously challeng ed trial-cour t order s rende red in a cus t o d y d i spute. See Caldwell v. Garfutt , No. 03-14-00019- CV, 2016 WL 105920 (Tex. App.—Austi n

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J an. 7, 2016, pet. denied) (mem. op.) (“ Caldwell II ”); Caldwell v. Garfutt , No. 0 3 -1 2 -00696-CV, 2014 WL 1018089 (Tex. App.—Austin Mar. 12, 2014, no pet.) (mem. op.), 2014 WL 1576871 (Tex. App.—Austin Apr. 17, 2014, no pet.) (s u p p l em ental op. on reh’ g ) (“ Caldwell I ”). This time, he challeng ed the two order s by way of writ of habea s corpus and petit i o n fo r bill of revie w, which the trial cour

t denied. Caldwe ll also chara cter izes thi s appea l as an “orig inal proce eding ” see king mandamus and habea s relief from this Court. For the following rea sons, we aff irm the trial court’s

Be cause the proce dural and fac tual backg round is well known to the partie s , an d is 1 summarized in our 2016 Memorandum Opinion, we do not rec ite it ag ain here. See Tex. R. App. P. 47.1.judgme nt, deny mandamus and habea s relief , and deter

mine that appe l lee Z immerman is entitled
to damage s for Caldwell’s frivolous appea l, conditioned on Z immerman’s filing with this Court within ten day s of this opinion evidenc e of the d am ages she incurre d in defe nding ag ainst Caldwell’s appe al.

Caldwell’s is sues

Caldwell raises fourtee n issues and g ener ally briefs them in the “ar g ument” section of his appellate brief by repe ating the two to three sentenc es per issue that he outlines in his “issues
prese nted ” s ec tion. Howeve r, as in his previous appea l, he g ener ally fails to support his issues with substantiv e ar gu m en t s or citations to the rec ord or authorities. See Tex. R. App. P. 38.1(i) (re quiring “ar g ument for the contentions made, with appr opriate c itations to authorities and to the

rec ord”) ; Caldwell II

, 2016 WL 105920, at *3. Acc ording ly , he has waived his issues. Caldwell II , 2016 WL 105920, at *3. Nonethe less, we onc e ag ain will attempt to a ddress his issues as best we
can, id. , but also as brief

ly as pra cticable

. See Tex. R. App. P . 47.1. I n his first six issues, Caldwell asks this Court to conclude that its own prior opinions and judgments in Caldwell I and Caldwell II are reve rsible err or, reurg ing the same iss ues t hat he h as previously raised in those prior appea ls. Be cause they are impermissible collater al attacks on final judgme nts, we overr ule Caldwell’s first six issues. See Browning v. Prostok , 165 S.W .3d 336, 345–46 (Tex. 2005); Gonzales v. State , 904 S.W .2d 175, 176–77 (Tex. App.—San Antonio 1995, pet. re f’d) ; see also Tex. R. App. P . 51.1(b).

I n his seventh issue, Caldwell challeng es an i n terim “ruling ” of the trial court deter mi n i n g t h at h i s petition for writ of habea s corpus “wa s prema ture and improper.” Caldwell

2appea

rs to be complaining of the trial court’s ref usal to hear arg ument on his writ peti t i o n at a hear ing on Caldwell’s mot i o n t o rec use J udg e McMaster

. Caldwell does not cite any authority supporting his asser

tion that such interim “ruling ” was reve rsible err or, nor have we found an y . Acc ording ly , we ove rrule his seve nth issue.

I n his e ighth issue, Caldwell appe ars to cha lleng e the f ailure of J udg e McMaster to provide the rea sons for his “voluntary ” rec usal from proce eding s in this cause afte r first “re fusing ”
to rec use himself pursuant to Caldwell’s motion. Caldwell cites rule of civil proce dure 18a(f )(2) (A)
to support his contention t h at J udg e McMaster was require d to enter finding s stating the rea sons fo r h is rec usal. See Tex. R. Civ. P. 18a(f )(2) (A) (“I f a motion [t o rec use] is filed before evidence has been offe red at trial, the responde nt judge must take no further action i n t h e case until the motio n h as been decide d, except for g ood cause stated in writing or on the rec ord.”)

. Caldwell does not asser

t that J udg e McMaster in fac t took any further acti o n s i n the cause befor e rec using himself—there by implicating ru le 18a(f )(2) (A)—nor does he asser t how he was harme d by
t h e j u d ge’ s failure to enter finding s when the rec usal was the very relief that Caldwell soug ht. Acc ording ly , we ove rrule Ca ldwell’s eig hth issue.

I n his ninth i ssue, Caldwell contends that the trial cour t committed rever sible err or by “re fusing to file findin gs an d co n clusions” with respe ct to its order s dismiss ing his motion to

rec use J udg e McMaster (as moo t ) and assig ning this cause to a new judge

. Ag ain, he cites no authority for his contention t h at s u ch finding s and conclusions are require d, nor does he alleg e how he was harme d by the court’s failure to make such fi n d i n gs . According ly , we overr ule Caldwell’s ninth issue.

3I n his tenth issue, Caldwell c ontends that he wa s entitled to a writ of prohibition to

preve nt J udg e McMaster from presiding at any future proce eding in this cause . Howeve r, Caldwell provides no citation to the rec ord or to any authorities that support this contention, nor does he make
any discernible or substantive arg ument for why he is entitled to such relief

. He has, there fore ,
w a iv e d th e is s u e . S

e e T e x. R. A

p p . P. 3 8

. 1 ( i)

. E v e n w e r e w e to a d d r e s s th e is s u e , w e w o u ld c o n c lu d e that he is not entitled to his reque sted relief becau s e h e h as n o t made the requisite showing

. See Holloway v. Fifth Court of Appeals , 767 S

. W

. 2 d 680, 683–84 (Tex. 1989) (noting that writ of prohibition is ty

pically used to prohibit unlawful interfe re n ce wi t h or enfor ceme nt of superior court’s order s or judgme nts and is extraordinary writ, available only for g rieva nces that may not be addre ssed by

other leg al re medies). We over rule Caldwe ll’s tenth issue. I n his eleve nth issue, Caldwell complains that the trial court err ed “b y failing to consider [hi s] Petition for Writ of Habe as C orpus ex parte ” and that such failure “improper ly shift[ ed] the burden of proof to [hi m] .” As best we can understand his arg ument, Caldwell appea rs
to be complaining that it was err or for the trial court to hear arg ument from Z immerman in response
to his petition for writ of habeas cor pus. Ag ain, Caldwell fa ils to cite any authority to support his contention of e rror , and we , acc ording ly , overr ule his eleve nth issue. I n his twelfth issue, Caldwell contends that the trial court err ed in g ran t ing Z immerman’s motion to dismi ss his petiti on for bill of re view. Specif ically , he complains that he did not have the requisite notice under the rules of civil proce dure and a meaning ful opportunity to respond to the m otion. See Tex. R. Civ. P. 91a.3 (r equiring motion to dismiss to be filed 21 day s

4prior to hear ing)

. Caldwell, howeve r, did not prese rve this complaint. See Odam v. Texans Credit 2
Union , No. 05-16-00077- CV, 2017 WL 3634274, at *4 (Tex. App.—Dallas Aug

. 24, 2017, no pet.) (noting that party waives complaint re gar d i ng insufficient rule 91a notice if it (a) fails to bring complaint to court’s attention during hear ing or (b) fails to raise issue in motion for new trial if party

rec eived no notice of hear ing) ; cf. Gaskill v. VHS San Antonio Partners, LLC , 456 S.W .3d 234, 239 (Tex. App.—San Antonio 2014, pet. denied) (noting that complaint of no notice of rule 91a hear ing
was pre serve d in motion for new trial).

Moreove r, as Z immerman asser ted in her motion to dismiss , a bill of revie w may not b e u s e d a s a

n a d d it io n a l r e me d

y a f te r o n e h a s ma d e a ti me ly , b u t u n s u c c e s s f u l, a p p e a l. R iz k v
. M a y a d , 603 S.W .2d 773, 776 (Tex. 1980); W heele r v. Hinson , No. 03-11-00067- CV, 2013 WL 363650, at *3 n.4 (Tex. App.—Austin J an. 2 5 , 2013, pet. denied) (mem. op.); see also Caldwell v. Barnes , 9 7 5 S. W. 2 d 5 3 5 , 5 3 7 ( T e x. 1 9 9 8 ) ( o u tl in in g b il l- o f

- r e v ie w e le me n ts )

. T h is b la c k

- le tt e r r u le f o r e c lo s e s Caldwell’s bi ll of review as a matter of law, a nd, there fore , even if there wer e a proce dural defec t with the notice that Caldwell was provided, any such err or was harmless. See Tex. R. App. P. 44.1 (“N o judgme nt may b e re verse d on appea l on the g round that the trial court made an err or of l aw u n l ess the court of appea ls conclude s that the err or complained of: (1) probably caus ed t h e rendition of an improper judgme nt; or (2) probably preve nted the appellant from proper ly prese nting

Whil e Caldwell did file a motion for new trial, he did not complain there in that he rec eived 2 no notice of the hear ing on Z immerman’s motion; ra ther, he complained, without elabor ation, that Z immerman’s motion was “untimely filed.” See Tex. R. App. P. 33.1 (stating that to prese rve err or, rec ord must show that complaint was made to trial court with sufficie nt specific ity to m ake trial court awa re of complaint); Reliance Ins. Co. v. Denton Cent. Appraisal Dist. , 999 S.W .2d 626, 630 n.1 (Tex. App.—For

t Worth 1999, no pet.) (“[T]o pre serve err or, the complaint on appea l must be the same a s that prese nted in the trial cour t.”). 5the case to the court of app ea l s . ”); W alker v. Owens , 492 S.W .3d 787, 791 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (apply ing harmles s -e rr o r rule to proce dural err or involving trial court’s non-complianc e with time periods in rule of civil proce dure 9 1 a)

. Ac cordingly , we overr ule Caldwell’s twelfth issue.

I n his thirteenth issue, Caldwell (without citing authority ) arg ues that the trial
court err ed in not set t i n g h ea ri n gs on his motion for rec onsideration and motion for new trial. How ev er , h ea ri ng s on motions for new trial are not mandatory except when the motion alleg es fac ts that, if true, would entitle the movant to a new trial. See In re T.B.H.-H. , 188 S.W .3d 312, 315 (Tex. App.—Waco 2006, no pet.). Caldwell’s motion for new trial made no such alleg ations. We

overr ule his thirteenth issue. I n his fourtee nth and final issue, Caldwell contends that the t rial c o u rt er re d in not
g ranting his bill of exceptions by “cor rec t [i ng ]” its finding s of fac t and conclusions “indicat[ing that] none of Caldwell’s claims had any basis in fac t [] or law.” Ag ain, Caldwell wholly fails to cite
to the rec ord and authorities or provide any substantive arg ument to support this content ion. Be cause

we cannot discern the basis for his complaint or conduct a meaning ful revie w, we conclude that he has wa ived his final issue. 3

Caldwell filed a supplemental brief in which he appea rs to raise three new issues not raised 3 in his initial appellant’ s brief, under the heading : “Supplemental Record I ssues No t R ai s able in Ant’s [si c] Br ief.” Caldwell does not explain why the issues wer e not “ra isable” in his initial brief. I n any event, we will not consider the new issues. See Champion v. State , 126 S.W .3d 686, 691–92 (Tex. App.—Amar illo 2004, no pet.) (dec lining to consider new issues raised in supplemental brief submitt ed after appellee’ s brief filed); Bowles v. Stat e , No

. 1 4 -9 9-01396-CR, 2001 WL 1047026, at *1 n.2 (Te x . App.—Houston [14t h Dist.] Sept. 13, 2001, pet. ref ’d) ( mem. op.) (“ Although this court commonly permits briefs to be amende d and sup p l em ented with additional authorities and an al y s i s , it rar ely , if ever , addre sses points of err or raised for the first time in amende d or supplemental brief

s.”). 6Caldwell’s requests for extraordin ary relief The sty le of Caldwell’s appellate brief indicates that, in addi t i o n t o b eing a direc t
appea l, this is an orig inal appellate proce eding see k i n g ex traordina ry relief in the form of writs of habea s corp u s and mandamus. Caldwell does not support these reque sts with arg ument or authorities bey ond what has been discussed above. See Tex. R. App. P. 52.3(h) (“The petition must

c o n ta in a c le a

r a n d c o n c is e a

r g u me n t f o r th e c o n te n ti o n s ma d e , w it h a p p r o p r ia te c it a ti o n s to a u th o r it ie s and to the appe ndix or re cord.” ). Ac cording ly , we de ny his requests for

extraordinary

relief

.
Zim m erm an’s m otion for dam ages for friv olous appeal

Z immerman filed a motion for damag es with this Court, asser ting that Caldwell’s
appea l is frivo l o u s . See Tex. R. App. P. 45 (“I f the court of appea ls deter mines that an appea l is frivolous, it may

—on motion of any party or on its own initiative, afte r n o t i ce an d a rea sonable opportuni t y for response —awa rd eac h preva iling party just damag es.”)

. After considering the

rec ord, briefs, and other paper s filed with this Court, we may aw ar d d am ages to a preva iling party if we obje ctively

deter mine that an appe al is frivolous. Id. ; Owen v. Jim Allee Imports, Inc. , 380 S.W .3d 276, 290 (Tex. App.—Dallas 2012, no pe t.). An appe al is frivolous when the r ecor d, viewed from the perspe ctive of the advocate, does not provide rea sonable g roun d s fo r the advocate to believe that the case should be reve rsed. Owen , 380 S.W .3d at 290; Mailhot v. Mailhot , 1 2 4 S. W. 3 d 7 7 5 , 7 7 8 ( T e x. A p p . — H o u s to n [1 s t D is t. ] 2 0 0 3 , n o p e t. )

. T h e d e c is io n to g r a n t a p p e ll a te sanctions i s a matter of di scre tion that an appellate court e x erc ises with prudenc e and caution and only afte r ca

ref ul delibera tion. Owen , 380 S.W .3d at 290. Although imposing sanctions is w ithin our discre tion, we will do so only in circumstanc es that ar e truly eg reg ious. Id.

7We conclude that this ap peal is frivolous and war rants sanctions. No objective advocate could have had rea sonable g rounds to believe that Caldwell was entitled to the equitable

4

an d extraordinary relief he soug ht at the trial court and then, upon not preva iling, appea led t o this Court. Ne ar l y half of Caldwell’s appellate complaints challeng e this very Court’s final judgme nts—judgments from which we can rende r no fu rt h er re l i ef. His rema ining issues wer e either waived due to inadequa te briefing and lack of support i n g au t h o ri ty or wer e thinly veiled attempts to collater ally attack prior ju dg ments by way of extraordinary writs and equitable
proce eding s that simply and objectivel y m ay n ot be employ ed in the circ umstances here

. He identifies no harm that he suffe re d fr o m t h e alleg ed proce dural err ors at the trial court and raises them here as weak attempts to g ain another bite at t he p ro verbia l apple, at Z immerman’s ex pense and for which we deter

mine she is entitled to damag es. Howeve r, Z immerman did not prese nt a ny evidenc e of the damag es she suffe red as

a result of the frivolous appea l. She states in her brief that she has incurre d $9,854.50 in attorney ’s fee s and expenses in connec tion with this matter, both at the trial court and in defe nse of this appea l and in prepa

ring her rule 45 motion, but she did not attach any evidenc e to the motion or otherwise file evidence with this Court to support her requested amount of damag es. Acc ording ly , we deny Z immerman’s reque st for damag es for the frivolous appea l, but we g rant her leave to file within ten day s of this opinion a reque st for damag es under rule 45 with evidenc e to support the amount of

Although we construe p ro se pl eading s and briefs liberally , we nonetheless “hold pro se 4 litigants to the same standards as licensed attorney s and require them to comply with applicable laws and rules of proce dure.” Gonzalez v. Magana , No. 03-1 4 -0 0387, 2015 WL 4997868, at *2 (Tex. App.—Austin Aug . 18, 2005, pet. denied) (mem. op.). 8d a

ma g e s in c u

r r e d

. S e e I n r e E s ta te o f A r d y c e D e u e l-

Na s h , N o . 0 5

- 1 4

- 0 0 1 2 8

- CV , 2 0 1 4 WL 5 5 8 1 0 4 4 , at *5 (Tex. App. —Dallas Dec

. 1, 2014, no pet.) (mem. op.) (ac knowledg ing appellee ’s entitlement
to damag es for frivolous appea l, determining that he provided no evidenc e to support reque sted amount, and providing hi m leave to file request for damag es wit h s u p p o rt i n g evidenc e withi n ten day s), No. 05-14-00128- CV, 2014 WL 6736919 (Tex. App.—Dallas De c. 1, 2014) ( supplemental op.); cf. Glassman v. Goodfriend , 522 S.W .3d 669, 674 (Tex. App.—Houston [14t h Di s t

. ] 2017, pet. filed) (per

mitti ng damag es for frivolous appea l when supported by uncontrove rted aff idavit of appellate counsel).

We affir m the trial court’ s judgme nt.

__________________________________________ David Pury ear , J ustice Be fore J ustices Pury ear , Field, a nd Bour land Affir med Filed: Oc tober 26, 2017

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