Opinion
NO. 02-17-00081-CV
05-17-2018
MICHAEL BRET DINKINS AND SHANNA MARIE DINKINS APPELLANTS v. FOREST L. CALHOUN AND JENNIFER LOEW APPELLEES
FROM COUNTY COURT AT LAW NO. 1 OF PARKER COUNTY
TRIAL COURT NO. CIV-16-0178 MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
If the neighboring parties here had recalled their Frost, they might have worked on building some good fences. Instead, it was the lack of a fence that ignited a lawsuit between Appellants Michael and Shanna Dinkins and their neighbors, Appellees Forest L. Calhoun and Jennifer Loew. After a jury trial, the Dinkinses moved for sanctions and to terminate or, alternatively, to clarify the easement the jury found Loew had through their property. The trial court denied the motions and awarded Calhoun and Loew $1,500 in attorney's fees. The Dinkinses challenge these rulings on appeal. We will affirm in part and reverse and remand in part.
See Robert Frost, Mending Wall, in North of Boston 11, 12, 13 (1914).
Background
The Dinkinses' property abuts Calhoun's and Loew's properties. Loew's property is landlocked by the Dinkinses' and Calhoun's properties. The appendix to this opinion shows the relative location of the parties' properties at the time the Dinkinses filed their easement motion.
For several years, the properties were not separated by a fence, and the Dinkinses' and Calhoun's livestock grazed on the adjoining properties. In February 2016, Calhoun notified the Dinkinses that he intended to immediately remove a section of common fence separating his and the Dinkinses' properties from State Highway 171. Because the removal would allow the Dinkinses' livestock to escape onto the highway, the Dinkinses sued Calhoun for injunctive relief to prevent him from tearing down the fence, contending that Calhoun failed to give them proper notice under the Texas Agriculture Code. See Tex. Agric. Code Ann. §§ 143.121, .122 (West 2004). The trial court enjoined Calhoun from removing the fence. Then, the Dinkinses sued Loew and sought injunctive relief against her and Calhoun to keep them from asking the Parker County Sheriff to impound the Dinkinses' livestock, claiming that Loew and Calhoun were trying to circumvent the trial court's injunction and the agriculture code's notice requirement.
A few months later, in May 2016, the Dinkinses built a fence separating their property from Calhoun's and Loew's. But this did not end the feud between the neighbors, and Calhoun and Loew counterclaimed. Calhoun and Loew sued the Dinkinses for conversion of real property, but the trial court granted the Dinkinses summary judgment on this nonexistent cause of action because "conversion applies to personal property and not to realty." Calhoun and Loew also sued the Dinkinses for malicious prosecution based on their initiating this lawsuit, and Loew sued them for declaratory and injunctive relief related to a claimed easement through their land. A jury found against Calhoun and Loew on their malicious-prosecution claims but found that Loew had an easement from Highway 171 to her property through the Dinkinses' property and that they should be enjoined from interfering with that easement.
Calhoun and Loew asserted numerous counterclaims against the Dinkinses, but we discuss only those relevant to the Dinkinses' issues on appeal.
Two days after the trial, the Dinkinses moved for sanctions against Calhoun, Loew, and their attorney, arguing that Calhoun's and Loew's conversion and malicious-prosecution claims were groundless and were brought in bad faith and to harass, cause unnecessary delay, and increase litigation costs. See Tex. Civ. Prac. & Rem. Code Ann. §§ 9.001-.0014 ("Frivolous Pleadings and Claims"), 10.001-.006 ("Sanctions for Frivolous Pleadings and Motions") (West 2017); Tex. R. Civ. P. 13 ("Effect of Signing of Pleadings, Motions and Other Papers; Sanctions"). The Dinkinses also filed a motion to terminate Loew's implied easement or, in the alternative, to clarify it. At the hearing, the Dinkinses offered no evidence supporting their motions. The trial court signed an order denying both motions and awarding Calhoun and Loew $1,500 in attorney's fees. This order became appealable when the trial court signed a final judgment over a month later.
The Dinkinses raise nine issues on appeal. In their first six issues, they argue that the trial court abused its discretion by denying their sanctions motion. In their remaining issues, they argue that the trial court erred by denying their easement motion, by awarding Loew and Calhoun attorney's fees, and by failing to file findings of fact and conclusions of law. But before we address the Dinkinses' issues, we must address the state of the record that faces us.
Partial Reporter's Record
In their notice of appeal, the Dinkinses stated that they are appealing (1) the denial of their sanctions motion, (2) the denial of their easement motion, and (3) the $1,500 attorney's-fees award. Consequently, the only portion of the reporter's record requested by the Dinkinses and filed by the court reporter is the post-trial hearing on the sanctions and easement motions.
Rule 34.6(c)(1) allows an appellant to reduce appellate expenses by abridging the reporter's record, thus limiting the appellate court's review to only those portions of the record relevant to the issues raised on appeal. CMM Grain Co., Inc. v. Ozgunduz, 991 S.W.2d 437, 439 (Tex. App.—Fort Worth 1999, no pet.). "If an appellant requests a partial reporter's record, the appellant must include in the request a statement of the points or issues to be presented on appeal and will then be limited to those points or issues." Tex. R. App. P. 34.6(c)(1). If an appellant complies with rule 34.6(c)(1) by including with the request for a partial reporter's record a statement of points or issues to be presented on appeal, the reviewing court must "presume that the partial reporter's record designated by the parties constitutes the entire record for purposes of reviewing the stated points." Tex. R. App. P. 34.6(c)(4). "This presumption applies even if the statement includes a point or issue complaining of the legal or factual sufficiency of the evidence to support a specific fact finding identified in that point or issue." Id. But if an appellant fails to comply with Rule 34.6(c), the contrary presumption arises: the reviewing court must instead presume that the missing portions of the record contain relevant evidence and that the omitted evidence supports the trial court's judgment. CMM Grain, 991 S.W.2d at 439; see Bennet v. Cochran, 96 S.W.3d 227, 230 (Tex. 2002) (stating that, absent a complete record on appeal, the appellate court must presume that omitted items support the trial court's judgment).
When a request for a partial reporter's record is made, any other party may designate additional exhibits and portions of the testimony to be included in the reporter's record. See Tex. R. App. P. 34.6(c)(2).
To activate the "irrelevant omissions" presumption, an appellant must satisfy rule 34.6(c)'s requirements. See CMM Grain, 991 S.W.2d at 439; but see Bennet, 96 S.W.3d at 229-30 (allowing a "slight relaxation" of rule 34.6, reasoning that "appellate rules are designed to further the resolution of appeals on the merits"). Generally, this means that both the request for a partial reporter's record and the statement of issues must be timely filed and appear in the appellate record. CMM Grain, 991 S.W.2d at 439. Although the rule specifies that the statement of issues must be included in the request for a partial reporter's record, see Tex. R. App. P. 34.6(c)(1), courts allow an appellant to file the issue statement in a separate document. See Furr's Supermarkets, Inc. v. Bethune, 53 S.W.3d 375, 377 (Tex. 2001) (stating that an issue statement in a separate notice sufficed to invoke the presumption that the partial reporter's record constituted the entire record for purposes of reviewing the stated issue). The points or issues should be described with some particularity; a general notice of stated points or issues is insufficient under rule 34.6(c)(1). See Garcia v. Sasson, 516 S.W.3d 585, 590 (Tex. App.—Houston [1st Dist.] 2017, no pet.); Wheeler v. Greene, 194 S.W.3d 1, 5 (Tex. App.—Tyler 2006, no pet.); see also Gardner v. Baker Botts, L.L.P., 6 S.W.3d 295, 297 (Tex. App.—Houston [1st Dist.] 1999, pet. denied) (construing former appellate-procedure rule 53(d), predecessor to rule 34.6(c)).
Here, the Dinkinses filed their notice of appeal and requested a partial reporter's record more than a month before the trial court signed its final judgment. See Tex. R. App. P. 34.6(b)(1) ("At or before the time for perfecting the appeal, the appellant must request in writing that the official reporter prepare the reporter's record."); see also Tex. R. App. P. 27.1(a) (stating that "a prematurely filed notice of appeal is effective and deemed filed on the day of, but after the event that begins the period for perfecting the appeal"), 27.2 ("The appellate court may treat actions taken before an appealable order is signed as relating to an appeal of that order and give them effect as if they had been taken after the order was signed."). The Dinkinses did not list their issues in their request for the reporter's record, but as noted, their notice of appeal set out that they wanted to appeal the denial of their sanctions and easement motions and the $1,500 attorney's-fees award. See, e.g., Brawley v. Huddleston, No. 02-11-00358-CV, 2012 WL 6049013, at *2 (Tex. App.—Fort Worth Dec. 6, 2012, no pet.) (mem. op) (concluding that statement of issues in notice of appeal is sufficient to invoke rule 34.6(c)(4)'s presumption). The Dinkinses' appellate issues are therefore limited to the trial court's rulings on those motions and the attorney's-fees award, and we will implement rule 34.6(c)(4)'s presumption that the reporter's record as designated constitutes the entire record for purposes of reviewing the Dinkinses' issues. See Tex. R. App. P. 34.6(c)(4); Furr's Supermarkets, 53 S.W.3d at 377 (concluding that notice sent to appellee on the same day appellant requested the partial reporter's record advising that "FSI desires to appeal only Judge Ferguson's failure to award FSI its taxable court costs, pursuant to Tex. R. Civ. P. 131 and Tex. Civ. Prac. & Rem. Code § 31.007" was sufficient to invoke partial-record presumption); Garcia, 516 S.W.3d at 591 (concluding that statement in notice of appeal that appellant "desire[d] to appeal on deemed admissions and other grounds" was sufficient to invoke the partial-record presumption with respect to the trial court's ruling regarding deemed admissions); Melton v. Toomey, 350 S.W.3d 235, 237 (Tex. App.—San Antonio 2011, no pet.) (concluding that statement in notice of appeal that appellant "was asserting his right to a limited appeal of the trial court's judgment 'in the failure and refusal of the Court to order Respondent . . . to pay child support and health insurance'" was sufficient to invoke partial-record presumption).
The Dinkinses did not file their reporter's-record request with the trial-court clerk. See Tex. R. App. P. 34.5(a)(9) (requiring the clerk's record to contain any request for a reporter's record, including any statement of points or issues under rule 34.6(c)), 34.6(b)(2) ("The appellant must file a copy of the request with the trial court clerk.") Nonetheless, it is part of this court's file of post-trial proceedings in the appeal. See Barcroft v. Walton, No. 02-16-00110-CV, 2017 WL 3910911, at *7 (Tex. App.—Fort Worth Sept. 7, 2017, no pet.) (mem. op.) (citing Tex. R. Evid. 201).
Denial of Sanctions Under Rule 13 and Chapter 10
The Dinkinses moved for sanctions under civil-procedure rule 13 and civil practice and remedies code chapter 10, both of which give a trial court discretion to sanction an attorney, a party, or both for filing pleadings that lack a reasonable basis in fact or law. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); see Tex. Civ. Prac. & Rem. Code Ann § 10.004(a); Tex. R. Civ. P. 13. In their first, third, fourth, and sixth issues, the Dinkinses argue that the trial court abused its discretion by denying their request for sanctions under rule 13 and chapter 10. See Tex. Civ. Prac. & Rem. Code Ann. §§ 10.001-.006; Tex. R. Civ. P. 13. The Dinkinses assert that Calhoun's and Loew's claims for conversion and malicious prosecution were groundless and were brought in bad faith and to harass, cause unnecessary delay, and increase litigation costs because (1) it is well established that Texas does not recognize a cause of action for conversion of real property and (2) Calhoun and Loew knew that the elements of their malicious-prosecution claims did not exist when they filed them.
See, e.g., Cage Bros. v. Whiteman, 163 S.W.2d 638, 641 (Tex. 1942); Lighthouse Church of Cloverleaf v. Tex. Bank, 889 S.W.2d 595, 599 n.4 (Tex. App.—Houston [14th Dist.] 1994, writ denied) ("We note, however, Texas does not recognize a cause of action for the conversion of real property." (citing Cage Bros., 889 S.W.2d at 641)).
"To prevail in a suit alleging malicious prosecution of a civil claim, the plaintiff must establish: (1) the institution or continuation of civil proceedings against the plaintiff; (2) by or at the insistence of the defendant; (3) malice in the commencement of the proceeding; (4) lack of probable cause for the proceeding; (5) termination of the proceeding in plaintiff's favor; and (6) special damages." Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 207 (Tex. 1996) (op. on reh'g). With respect to the fifth element, "an underlying civil suit has not terminated in favor of a malicious prosecution plaintiff until the appeals process for that underlying suit has been exhausted." Id. at 208. Because Calhoun's and Loew's malicious-prosecution claims were based on the Dinkinses' filing this lawsuit, the Dinkinses argued that Calhoun and Loew could not satisfy this element.
Standard of review
We review a trial court's ruling on a sanctions motion for an abuse of discretion. See Nath v. Tex. Children's Hosp, 446 S.W.3d 355, 361 (Tex. 2014); Low, 221 S.W.3d at 614; WWW.URBAN.INC v. Drummond, 508 S.W.3d 657, 675 (Tex. App.—Houston [1st Dist.] 2016, no pet.). A trial court abuses its discretion if it acts without reference to any guiding rules or principles, that is, if the act is arbitrary or unreasonable. Low, 221 S.W.3d at 614; Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004). Because courts presume that pleadings and other papers are filed in good faith, the party moving for sanctions bears the burden of overcoming this presumption. Nath, 446 S.W.3d at 361; Low, 221 S.W.3d at 614.
Sanctions under rule 13
Relevant to this case, rule 13 authorizes a trial court to impose sanctions if an attorney has signed pleadings that are groundless and were either brought in bad faith or to harass. See Tex. R. Civ. P. 13; Nath, 446 S.W.3d at 362-64. "Groundless . . . means no basis in law or fact and not warranted by good faith argument for the extension, modification, or reversal of existing law." Tex. R. Civ. P. 13. But rule 13 does not permit sanctions on groundlessness alone; the pleading must also be brought in bad faith or to harass. Id.; Nath, 446 S.W.3d at 369. As to those additional components, "bad faith" is not just bad judgment or negligence but "means the conscious doing of a wrong for dishonest, discriminatory, or malicious purpose," and "harass" means the pleading was intended to annoy, alarm, and verbally abuse another person. Keith v. Solls, 256 S.W.3d 912, 916-17 (Tex. App.—Dallas 2008, no pet.) (citing Elkins v. Stotts-Brown, 103 S.W.3d 664, 669 (Tex. App.—Dallas 2003, no pet.)).
Filing a pleading that the trial court denies does not entitle the opposing party to rule 13 sanctions. Elkins, 103 S.W.3d at 668. Rule 13 in fact "requires the trial court to hold an evidentiary hearing to make the necessary factual determinations about the motives and credibility of the person signing the allegedly groundless pleading." D Design Holdings, L.P. v. MMP Corp., 339 S.W.3d 195, 204 (Tex. App.—Dallas 2011, no pet.) (quoting Keith, 256 S.W.3d at 917); see Malouf v. Elana Sptizberg Tr., No. 05-15-00824-CV, 2016 WL 4158890, at *2 (Tex. App—Dallas Aug. 5, 2016, no pet.) (mem. op.). Without an evidentiary hearing, the trial court cannot determine whether a pleading was filed in bad faith or to harass. Click v. Transp. Workers Union Local 556, No. 05-15-00796-CV, 2016 WL 4239473, at *2 (Tex. App.—Dallas Aug. 10, 2016, no pet.) (mem. op.) (citing Alejandro v. Robstown Indep. Sch. Dist., 131 S.W.3d 663, 670 (Tex. App.—Corpus Christi 2004, no pet.)). To this end, motions and arguments of counsel are not evidence in a sanctions-hearing context. Id. (citing McCain v. NME Hosps., Inc., 856 S.W.2d 751, 757 (Tex. App.—Dallas 1993, no writ)). Moreover, rule 13 does not require a trial court to hold an evidentiary hearing before denying a sanctions motion. Skinner v. Levine, No. 04-03-00354-CV, 2005 WL 541341, at *3 (Tex. App.—San Antonio Mar. 9, 2005, no pet.) (mem. op.).
The Dinkinses had the burden to overcome the presumption that Calhoun's and Loew's pleadings were filed in good faith. See Nath, 446 S.W.3d at 361; Low, 221 S.W.3d at 614. To do so, they were required to present evidence supporting their rule 13 sanctions motion at an evidentiary hearing showing that Calhoun's and Loew's pleadings were brought in bad faith or to harass. See Malouf, 2016 WL 4158890, at *2; D Design Holdings, 339 S.W.3d at 204. As noted, they did not do so. Nor did they object to the lack of the required evidentiary hearing. See D Design Holdings, 339 S.W.3d at 204; see also Click, 2016 WL 4239473, at *2 (citing D Design Holdings, 339 S.W.3d at 204). We therefore conclude that the trial court did not abuse its discretion by denying the Dinkinses' request for sanctions under rule 13. See Click, 2016 WL 4239473, at *2; Malouf, 2016 WL 4158890, at *2; D Design Holdings, 339 S.W.3d at 204. We overrule the Dinkinses' first and fourth issues.
Sanctions under chapter 10
Chapter 10 permits a trial court to impose sanctions if an attorney has signed pleadings that violate section 10.001. See Tex. Civ. Prac. & Rem. Code Ann. § 10.004(a). Relevant to this case, section 10.001 provides that a pleading's signatory certifies that to the best of his knowledge, information, and belief, formed after a reasonable inquiry, (1) the pleading is not being presented for an improper purpose, "including to harass or to cause unnecessary delay or needless increase in the cost of litigation" and (2) each claim, defense, or other legal contention is warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or establishing new law. Id. § 10.001(1), (2). While a trial court can sanction an attorney, a party represented by the attorney, or both for section 10.001 violations, see id. § 10.004(a), a court cannot award monetary sanctions against a party represented by counsel for violating section 10.001(2), id. at § 10.004(d).
The Dinkinses contend that Calhoun's and Loew's pleadings violate section 10.001(1) and (2). But as with sanctions under rule 13, to impose sanctions under section 10.001(1), a trial court must hold an evidentiary hearing to make the necessary factual determinations about a party's or an attorney's motives and credibility. Gomer v. Davis, 419 S.W.3d 470, 480 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (citing R.M. Dudley Const. Co., Inc. v. Dawson, 258 S.W.3d 694, 709 (Tex. App.—Waco 2008, pet. denied)); see 21st Mortg. Co. v. Hines, No. 09-15-00354-CV, 2016 WL 7177697, at *5 (Tex. App.—Beaumont Dec. 8, 2016, pet. denied) (mem. op.). The sanctions movant must prove the pleading party's subjective state of mind and cannot do so without an evidentiary hearing. See Gomer, 419 S.W.3d at 480 (citing R.M. Dudley, 258 S.W.3d at 710). And like rule 13, chapter 10 does not require a trial court to hold an evidentiary hearing before denying a sanctions motion. Skinner, 2005 WL 541341, at *3. So as with the Dinkinses' request for sanctions under rule 13, we conclude that the trial court did not abuse its discretion by denying their request for sanctions under section 10.001(1). See Click, 2016 WL 4239473, at *2; see also Trussell Ins. Servs., Inc. v. Image Sols., Inc., No. 12-09-00390-CV, 2010 WL 5031100, at *4 (Tex. App.—Tyler Dec. 8, 2010, no pet.) (mem. op.) (concluding that a party waived its right to sanctions under chapter 10 by failing to object to nonevidentiary hearing on sanctions motion and failing to secure evidentiary hearing on the motion).
Section 10.001(2)—the Dinkinses' other alleged basis for sanctions under chapter 10—provides that a pleading's signatory certifies that "each claim, defense, or other legal contention in the pleading or motion is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law." Tex. Civ. Prac. & Rem. Code Ann. § 10.001(2). Unlike sanctions for violating section 10.001(1), sanctions under 10.001(2) do not require an improper-purpose finding. Compare id. § 10.001(1), with id. § 10.001(2). "Chapter 10 provides that a claim that lacks a legal or factual basis—without more—is sanctionable." Nath, 446 S.W.3d at 369 (citing Tex. Civ. Prac. & Rem. Code Ann. § 10.001). "Legally, the claim must be warranted by existing law or a nonfrivolous argument to change existing law." Id. (citing Tex. Civ. Prac. & Rem. Code Ann. § 10.001(2)). But a finding that a pleading was signed in violation of this section nevertheless does not require the trial court to impose sanctions: chapter 10 sanctions are permissive, not mandatory. See Tex. Civ. Prac. & Rem. Code Ann. § 10.004(a) ("A court that determines that a person has signed a pleading . . . in violation of Section 10.001 may impose a sanction on the person, a party represented by the person, or both." (emphasis added)); Malouf, 2016 WL 4158890, at *3 (citing Rogers v. Walker, No. 13-12-00048-CV, 2013 WL 2298449, at *10 (Tex. App.—Corpus Christi May 23, 2013, pet. denied) (mem. op.)). The Dinkinses cite no authority that sanctions are mandatory under chapter 10, nor do they cite any case in which an appellate court reversed a trial court for not awarding a discretionary sanction. We therefore cannot conclude that the trial court abused its discretion by failing to award the Dinkinses sanctions under section 10.001(2). See Malouf, 2016 WL 4158890, at *3. We overrule the Dinkinses' third and sixth issues.
Denial of Sanctions Under Chapter 9
Chapter 9 of the civil practice and remedies code allows a trial court to sanction an attorney, a party, or both for filing pleadings that are (1) groundless and (2) brought in bad faith, to harass, or for any improper purpose, such as to cause unnecessary delay or needless increase in litigation costs. See Tex. Civ. Prac. & Rem. Code Ann. § 9.011. In their second and fifth issues, the Dinkinses complain that the trial court abused its discretion by refusing to sanction Calhoun and Loew pursuant to chapter 9. See id. §§ 9.001-.014. But sanctions under chapter 9 are limited to proceedings in which neither chapter 10 nor rule 13 applies. See id. § 9.012(h) ("This section does not apply to any proceedings in which Section 10.004 or Rule 13, Texas Rule of Civil Procedure, applies."); Low, 221 S.W.3d at 614; Cynthia Nguyen, An Ounce of Prevention is Worth a Pound of Cure?: Frivolous Litigation Diagnosis Under Texas Government Code Chapters 9 and 10, and Texas Rule of Civil Procedure 13 , 41 S. Tex. Law Rev. 1061, 1084 (2000) (theorizing that because of section 9.012(h), "it would be difficult to conceive of a scenario in which Chapter 9 would be applicable"); see also Nath, 446 S.W.3d at 362 n.6 (noting chapter 9's limited application, stating that it "has largely been subsumed by subsequent revisions to the code," and citing Nguyen, supra, at 1083-84).
Here, the Dinkinses moved for sanctions under chapter 9 for the same reasons they sought sanctions under rule 13 and chapter 10 and requested the same types of sanctions. Chapter 9 therefore does not apply, and the trial court did not abuse its discretion by denying the Dinkinses' motion for sanctions under chapter 9. See Tex. Civ. Prac. & Rem. Code Ann. § 9.012(h); Green v. Mem'l Park Med. Ctr., Inc., No. 07-15-00143-CV, 2016 WL 1179207, at *5 (Tex. App.—Amarillo Mar. 25, 2016, no pet.) (mem. op.) ("Here Green alleged Memorial Park's attorney signed a petition he knew was groundless, brought suit for the purpose of harassment, and filed a notice of nonsuit containing false statements. We therefore look to Rule 13 [rather than chapter 9 to determine whether the trial court erred by denying sanctions]."). We overrule the Dinkinses' second and fifth issues.
Denial of the Easement Motion
In their seventh issue, the Dinkinses argue that the trial court erred by denying their easement motion and by finding that Loew had an express easement across their property.
According to the Dinkinses' easement motion, in 1998 Calhoun and his then-wife Betty purchased a home (which Loew eventually bought) on about 34.7 acres. As our appendix shows, the Calhouns accessed their house from highway 171 by a gravel driveway running east and west along their northern property line that connects with an asphalt road running north and south that encircled their house. In 1999, the Calhouns sold ten acres to the Dinkinses. Because the gravel driveway and a part of the asphalt road were on those ten acres, the Dinkinses granted the Calhouns an easement "across the real property described as the Gravel Drive on the property" so that the Calhouns could still access their home.
As the appendix also shows, after the 1999 transaction, the Dinkinses' southern property line and the Calhouns' northern property line was located at North 82 degrees, 43 minutes, 22 seconds East. At some point, the one-acre tract with the Calhouns' residence was severed from the rest of their land. Then, the Calhouns divorced. Forest Calhoun was awarded the one-acre tract with the house, and the remaining land was divided between Forest and Betty. The appendix shows that the line between their properties was located at South 78 degrees, 23 minutes, 44 seconds West. In 2012, Betty transferred her land to the Dinkinses. That same year, the Calhouns' mortgage company foreclosed on the one-acre tract with the house, which Loew eventually purchased from Cameron Timber in 2015.
At trial, Loew sought a declaration that she had an easement for the gravel and asphalt driveway to access her property from highway 171. The jury was charged as follows:
Jennifer Loew has claimed that she has an expressed easement for the gravel and asphalt driveway to her property through the property of Michael Bret Dinkins and Shanna Marie Dinkins. Michael Bret Dinkins and Shanna Marie Dinkins have now claimed that Jennifer Loew does not have that easement.
1. Does the Jury find that Jennifer Loew owns the easement of the gravel and asphalt driveway from Highway 171 to her property through Michael Bret Dinkins and Shanna Marie Dinkins land?The jury answered "yes."
The Dinkinses complain that the jury was not asked to determine whether the easement was express, implied, or a combination of the two. To the extent they are complaining about the charge, we do not address this argument because they did not designate charge error as an appellate issue, see Tex. R. App. P. 34.6(c)(1), nor does the record show that the Dinkinses preserved error on this issue, see generally Tex. R. Civ. P. 271-79. On appeal, the Dinkinses concede that Loew has an express easement over their property north of the North 82 degrees, 43 minutes, 22 seconds East line and challenge only the existence of an easement—either express or implied—in Loew's favor between that line and the line at South 78 degrees, 23 minutes, 44 seconds West. But documents attached to the Dinkinses' motion establish that Loew had an express easement between those two lines.
Among the several documents that the Dinkinses attached to their motion were (1) the default order granting the Calhouns' mortgage company's foreclosure application; (2) the substitute trustee's deed from the foreclosure sale; (3) the special warranty deed with vendor's lien conveying the property from the mortgage company to Timber; and (4) the warranty deed with vendor's lien conveying the property from Timber to Loew. As the Dinkinses admitted in their motion, in each of these documents, the one-acre tract's property description includes an ingress and egress easement over the east asphalt road between the line at North 82 degrees, 43 minutes, 22 seconds East and the line at South 78 degrees, 23 minutes, 44 seconds West. So even with the partial-record presumption that rule 34.6(c)(4) affords, the trial court did not err in concluding in the order denying the easement motion that Loew had an express easement "for reasonable use to the gravel and asphalt driveway through the Dinkins [sic] land." We overrule the Dinkinses' seventh issue.
Attorney's Fees
In their eighth issue, the Dinkinses contend that the trial court erred by awarding Calhoun and Loew $1,500 in attorney's fees for defending against the sanctions and easement motions because there was no legal basis for the award and there was no evidence supporting the award. Loew and Calhoun respond that they included a request for attorney's fees in their response to the Dinkinses' easement motion and that their attorney testified about the amount of reasonable attorney's fees incurred to defend against that motion.
The Dinkinses list this issue in their "issues presented" and briefly discuss it in the "summary of argument" portion of their brief. See Tex. R. App. P. 38.1(f), (h). But this issue does not appear in any other part of their brief and is not supported by any argument, record citations, or citations to authority where it does appear. See Tex. R. App. P. 38.1(i). Loew and Calhoun suggest that this issue has been inadequately briefed, implying that the Dinkinses have waived this complaint. See id. While we are inclined to agree, the supreme court has made clear that Texas courts should be slow to dismiss claims based on waiver or failure to preserve an issue. First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 221-22 (Tex. 2017); Nath, 446 S.W.3d at 365. We must therefore "construe briefing 'reasonably, yet liberally, so that the right to appellate review is not lost by waiver.'" First United Pentecostal Church, 514 S.W.3d at 222 (quoting Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008)). "Simply stated, appellate courts should reach the merits of an appeal whenever reasonably possible." Perry, 272 S.W.3d at 587. We thus address the merits of the Dinkinses' attorney's-fees issue. See Kachina Pipeline Co. v. Lillis, 471 S.W.3d 445, 455 (Tex. 2015) (op. on reh'g) (holding that attorney's-fees issue was sufficiently raised and briefed when argued conditionally in footnote).
Error preservation
The Dinkinses did not object to the attorney's-fees award in the trial court. Generally, to preserve a complaint for appellate review, a party must have presented its complaint to the trial court by timely request, objection, or motion with sufficient specificity to make the trial court aware of the complaint. See Tex. R. App. P. 33.1(a). If a party fails to do this, error is not preserved, and the complaint is waived. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh'g). "Complaints regarding alleged error in awarding attorney's fees are subject to this rule." Gipson-Jelks v. Gipson, 468 S.W.3d 600, 604 (Tex. App.—Houston [14th Dist.] 2015, no pet.). We interpret the Dinkinses' contention that there was no legal basis for the attorney's-fees award to mean that it lacked any statutory or contractual basis. Because the Dinkinses never objected to the attorney's-fees award in the trial court, they did not preserve error as to this complaint. See id. But because the trial court determined the amount of attorney's fees, the Dinkinses may still challenge the sufficiency of the evidence supporting the attorney's-fees award because such a challenge may be raised for the first time on appeal. See Tex. R. App. P. 33.1(d); Gipson-Jelks, 468 S.W.3d at 604-05; see also Huey-You v. Huey-You, No. 02-16-00332-CV, 2017 WL 4053943, at *3 (Tex. App.—Fort Worth Sept. 14, 2017, no pet.) (mem. op.).
Standard of review
We review a trial court's attorney's-fees award for an abuse of discretion. See El Apple, Ltd. v. Olivas, 370 S.W.3d 757, 761 (Tex. 2012). Evidentiary-sufficiency issues are not independent grounds under this standard but are relevant factors in assessing whether the trial court abused its discretion. Halsey v. Halter, 486 S.W.3d 184, 187 (Tex. App.—Dallas 2016, no pet.). This hybrid analysis involves a two-pronged inquiry—whether the trial court had sufficient evidence upon which to exercise its discretion and, if so, whether the trial court erred in applying that discretion. City of Houston v. Kallinen, 516 S.W.3d 617, 626 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (op. on reh'g).
We may sustain a legal sufficiency challenge only when (1) the record discloses a complete absence of evidence of a vital fact, (2) the court is barred by legal or evidentiary rules from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact. Ford Motor Co. v. Castillo, 444 S.W.3d 616, 620 (Tex. 2014) (op. on reh'g); Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999).
Sufficiency of the evidence
The Dinkinses contend the evidence is legally insufficient to support the attorney's-fees award. The only evidence Calhoun and Loew's attorney offered was the following testimony at the hearing on the sanctions and easement motions: "[A]t this point we would be requesting attorney's fees in the amount of $1,500. And that is for $200 an hour for seven and a half hours to pursue all of the extensive briefs and motions that they have filed at this time." By offering evidence of the hours worked multiplied by her hourly rate, Calhoun and Loew's attorney appears to have elected to use the lodestar method to prove their attorney's fees. See Long v. Griffin, 442 S.W.3d 253, 255 (Tex. 2014); City of Laredo v. Montano, 414 S.W.3d 731, 735-36 (Tex. 2013); Lawry v. Pecan Plantation Owners Ass'n, Inc., No. 02-15-00079-CV, 2016 WL 4395777, at *8 (Tex. App.—Fort Worth Aug. 18, 2016, no pet.) (mem. op.).
To determine what constitutes a reasonable fee under the lodestar method, a trial court "must determine the reasonable hours spent by counsel in the case and a reasonable hourly rate for such work. The court then multiplies the number of such hours by the applicable rate, the product of which is the base fee or lodestar." El Apple, 370 S.W.3d at 760 (citations omitted); Montano, 414 S.W.3d at 735 (stating that the lodestar method requires "consideration of the time spent, the reasonable value of the time, and whether the time was reasonable and necessary"). Under this method, the party seeking fees should include evidence of (1) the nature of the work; (2) who performed the services and their rate; (3) approximately when the services were performed; and (4) the number of hours worked. El Apple, 370 S.W.3d at 763. An attorney can testify to these details, "but in all but the simplest cases, the attorney would probably have to refer to some type of record or documentation to provide this information." Id. When applying for a fee under the lodestar method, "the applicant must provide sufficient details of the work performed before the court can make a meaningful review of the fee request." Id. at 764.
Calhoun and Loew's attorney's testimony supporting their attorney's-fee request was far too general to support the award. She testified that she spent seven-and-a-half hours "pursu[ing] all of the extensive briefs and motions that [the Dinkinses] have filed at this time." But she offered no testimony about the reasonableness of her hourly rate, what specific tasks she performed, or when the work was done. Without evidence of the time spent on specific tasks, the trial court had insufficient information to meaningfully review the fee request. See Long, 442 S.W.3d at 255 (citing Montano, 414 S.W.3d at 736-37; El Apple, 370 S.W.3d at 764). She also offered no evidence indicating when the work was done or regarding the reasonableness of her hourly rate. While counsel's testimony is some evidence to support an attorney's-fees award, it is legally insufficient under the lodestar method to support the amount awarded.
Even though we have evaluated the sufficiency of the evidence to support the fee calculation under the lodestar method, we do not hold that the lodestar method was required in this case. The evidence is likewise insufficient under the Arthur Andersen factors traditionally used when determining reasonable attorney's fees: (1) the time and labor required, the novelty and difficulty of the issues involved, and the skill required to perform the legal service properly; (2) the likelihood that the acceptance of the particular case will preclude other employment by the attorney; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship the attorney has with the client; (7) the experience, reputation, and ability of the attorney or attorneys performing the services; and (8) whether the fee is fixed or contingent on the results obtained or the uncertainty of collection before the legal services have been rendered. Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997) (op. on reh'g); AMX Enters., L.L.P. v. Master Realty Corp., 283 S.W.3d 506, 517 (Tex. App.—Fort Worth 2009, no pet.) (op. on reh'g). Courts are not required to receive evidence on each of these factors to award attorney's fees. State & Cty. Mut. Fire Ins. Co. v. Walker, 228 S.W.3d 404, 408 & n.8 (Tex. App.—Fort Worth 2007, no pet.). Even so, other than the time spent and her hourly rate, Calhoun and Loew's counsel offered no testimony regarding the Arthur Andersen factors. While counsel's testimony was some evidence of fees, it was legally insufficient under Arthur Andersen to support the amount awarded. Accordingly, we hold that the trial court abused its discretion by awarding Calhoun and Loew $1,500 in attorney's fees and sustain the Dinkinses' eighth issue.
Findings and Conclusions
In their ninth issue, the Dinkinses assert that the trial court erred by failing to file findings of fact and conclusions of law regarding their sanctions and easement motions despite their timely request under rule 296. They complain that the lack of findings has prevented them from adequately presenting their case on appeal because they have had to guess the basis for the trial court's rulings.
The day after the Dinkinses filed their brief, they moved this court to abate the appeal and to compel the trial court to file findings and conclusions. We denied the Dinkinses' motion.
Under rule 34.6(c), the Dinkinses are limited to the issues listed in their notice of appeal. See Tex. R. App. P. 34.6(c)(1). Because they did not designate this failure-to-file issue, they cannot raise it on appeal. See Melton, 350 S.W.3d at 237 (declining to address undesignated issues when appellant's designation was sufficient to invoke rule 34.6(c)(4)'s presumption). But even if the Dinkinses had designated this issue, we would overrule it. A trial court is required to file findings of fact and conclusions of law when properly requested only after signing a judgment in a case that has been tried before the court. See Tex. R. Civ. P. 296, 297. "The purpose of Rule 296 is to give a party a right to findings of fact and conclusions of law finally adjudicated after a conventional trial on the merits before the court. In other cases[,] findings and conclusions are proper, but a party is not entitled to them." IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 442 (Tex. 1997). In such cases, findings are not required because they are often unnecessary, because requiring them in every case would unduly burden the trial courts, and because appellate courts are not obliged to give them the same level of deference. Id. Here, even though the trial court decided the post-trial sanctions and easement motions, the trial on the merits was to a jury. The trial court was therefore not required to make findings and conclusions. See id. We overrule the Dinkinses' ninth issue.
Frivolous Appeal
In their own brief, Calhoun and Loew argue that the Dinkinses' appeal is frivolous and ask for damages under appellate-procedure rule 45. See Tex. R. App. P. 45 ("Damages for Frivolous Appeals in Civil Cases"). Under rule 45, we may award "just damages" to a prevailing party in an appeal if we determine it is frivolous after considering the record, briefs, or other papers filed. See id. After considering the record, briefs, and other papers filed, we disagree that the appeal is frivolous, and thus deny Calhoun and Loew's request for damages.
Conclusion
We affirm in part and remand in part. Because we have sustained the Dinkinses' eighth issue, we reverse the trial court's $1,500 attorney's-fees award and remand this case to the trial court for redetermination of attorney's fees. See Long, 442 S.W.3d at 256. Having overruled the Dinkinses' remaining issues, we affirm the remainder of the trial court's order on the Dinkinses' sanctions and easement motions.
/s/ Elizabeth Kerr
ELIZABETH KERR
JUSTICE PANEL: SUDDERTH, C.J.; GABRIEL and KERR, JJ. DELIVERED: May 17, 2018
Appendix
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