Preview
§
§
v.
164th Judicial District
Defendant’s Response to Plaintiff’s Oppos
The Court should deny the Opposed Motion for Sanctions filed by Plaintiff
Billisha Hastings (“Hastings” or “Plaintiff”) seeking sanctions against Defendan
McGuyer Homebuilders Inc. (hereinafter “ ” or “ ”) because (a) Plaintiff
offers no evidence or persuasive legal authority to justify her request; (b) the conduct
about which Plaintiff complains (filing an amended a motion to address arguments of
their opponent and then extending a submission date as required by local rules) is not
Argument and Authorities
Chapter 10 of the Texas Civil Practice & Remedies Code allows a court to award
sanctions for, among other things, pleadings filed with an improper purpose.
., 446 S.W.3d 355, 361 (Tex. 2014). Courts construe the phrase
“improper purpose” as the equivalent of “bad faith” under Rule 13.
, 198 S.W.3d 300,
321 (Tex. App.—Texarkana 2006, pet. denied). For purposes of imposing sanctions,
“bad faith” is a difficult standard to meet. “Errors in judgment, lack of diligence,
unreasonableness, negligence, or even gross neg more—do not equate
to bad faith.” Brewer v. Lennox Hearth Products, LLC, —S.W.3d —,Case No. 18-0426,
2020 WL 1979321, at *10 (Tex., April 24, 2020), (June 12, 2020). Even a
violation of a statute, rule or ethical standard does not ipso facto constitute bad faith for
purposes of imposing sanctions. Instead, bad faith means “the conscious doing of a
wrong for dishonest, discriminatory, or malicious purposes.” Mattly v. Spiegel, Inc., 19
n [14th Dist.] 2000, no pet.).
Generally, courts presume pleadings and other papers are filed in good faith, and a
party who wants Chapter 10 sanctions has the “heavy burden” to prove their right to such
relief “with evidence.” Mann v. Kendall Home Builders Constr. Partners I, Ltd., 464
S.W.3d 84, 92 (Tex. App.—Houston [14th Dist.] 2015, no pet.); , 2020 WL
1979321 at *10 (holding that a party seeking sanctions under the court’s inherent
authority must offer “direct or circumstantial evidence” of bad faith, but “absent direct
evidence, the record must reasonably give rise to an inference of intent or willfulness.”).
“Bad faith cannot be established by surmise or speculation,” , 464 S.W.3d at 92,
nor can it be shown by mere arguments of counsel, which is not evidence.
Thielemann v. Kethan, 371 S.W.3d 286, 295 (Tex. App.—Houston [1st Dist.] 2012, pet.
denied). As shown below, Plaintiff has not met her burden to overcome the presumption
of good faith, because not only does Plaintiff omit authority or evidence to support her
arguments, but also the law proves that the challenged conduct was permissible and not
sanctionable.
Plaintiff’s request for sanctions relies solely upon T
§ 10.001(1), which permits sanctions where a signatory to a pleading or motion has
presented that motion “for an improper purpose, including to harass or to cause
unnecessary delay or needless increase in the costs of litigation.” [See Motion for
at p. 3 (“Hastings seeks sanctions under the first reason under Section
10.001.”)]. Plaintiff claims that Defendant has violated Section 10.001(1) by (a)
amending Defendant’s Motion to Compel Arbitration to combine into one document its
Motion to Compel and its Reply to Plaintiff’s Response to that Motion so the Court
would have fewer instruments to read; and (b) moving the submission date for the
Amended Motion to ensure that Plaintiff received the 10 days’ notice required by Harris
County Local Rule 3.3.3. [See Mtn. for Sanctions at p. 2 (stating that “[t]he only
purposes that could be served by filing an amended motion are to harass, to deceptively
reset the date on the motion to buy more time to file a Reply or Amended Motion, to
cause unnecessary delay and to needlessly increase the cost of litigation, all blatant
violations of Texas Civil Practice and Remedies Code §10.001(1)”) and p. 3 (“[t]he
amended motion was brought for an improper purpose; namely to harass, to buy time to
file a reply or an amended motion, and to cause counsel for Hastings to spend more time
responding to facts and law in the original and amended motions.”)]. Plaintiff therefore
argues that the mere filing of an amended motion and the resetting of the submission date
to ensure that Plaintiff was given the notice required by local rules is tantamount to filing
It is not improper – much less sanctionable – for a party to amend its motion, or
reset the date upon which that motion will be submitted to the Court for ruling. Texas
law allows parties to routinely amend pleadings and motions. For instance, Rule 63
allows a party to amend its pleadings at any time, so long as it is done consistent with
63. A party has a right to amend motions to correct deficiencies, like
missing verifications for a motion to transfer venue or a special appearance.
Tex. Consumer Fin. Corp., 494 S.W.2d 581, 582 (Tex. Civ. App.—Fort Worth 1973, no
writ) (“Either party to a venue proceeding has a right to amend his venue pleadings …
and [t]his right to amend includes the right to amend a defective plea of privilege that has
not been properly verified.”); Dawson–Austin v. Austin, 968 S.W.2d 319, 322 (Tex.
1998) (holding that party may cure defect in unsworn special appearance by amendment
to add verification after ruling on special appearance, as long as amendment is filed
before there is general appearance). Rule 270 gives trial courts the liberal discretion to
reopen evidence at trial “in the interest of permitting both sides to fully develop the case
in the interest of justice.” In re Hawk, 5 S.W.3d 874, 877 (Tex. App.—Houston [14th
Dist.] 1999, no pet.). Texas law even permits a non-movant to thwart a pending motion
for summary judgment by amending the non-movant’s pleadings, so long as the
amendment is filed at least seven days before the hearing. Yeske v. Piazza Del Arte, Inc
ouston [14th Dist.] 2016, no pet.). In short, the mere
amendment of a pending motion is not sanctionable, but is instead a common practice in
courts around the state.
Here, Defendant filed its Amended Motion to Compel Arbitration for a proper
purpose. First, it did so to include a declaration to, among other things, authenticate
certain documents, well before the original Motion to Compel was submitted to the Court
for ruling. Second, Defendant filed its Amended Motion to Compel in lieu of a reply
because Defendant’s counsel thought it more convenient for the Court if Defendant were
to combine into one document its Motion to Compel Arbitration and retort to the
arguments Plaintiff offered in opposition to that relief. After filing the amended Motion
to Compel Arbitration, Defendant reset the submission date to give Plaintiff the requisite
10 days’ notice. IVIL 3.3.3. This conduct is
permissible, and is no different than a party curing pleading defects in a motion to
transfer venue or special appearance, or reopening trial evidence “to fully develop the
case in the interests of justice.” It is also no different than what Plaintiff herself has done
in this very case, which was to file a First Amended Petition to ensure that the arguments
she was making in her Response to the original Motion to Compel were, in fact,
supported by the pleadings.
In addition, Plaintiff offers no evidence of prejudice. In fact, the procedure that
Defendant employed in this instance actually favored Plaintiff. Plaintiff appears to
Plaintiff filed her lawsuit on May 4, 2020 but filed an amended petition three weeks later, and just two days before
Plaintiff filed her Response to Defendant’s initial Motion to Compel Arbitration. Comparing the two pleadings
(as the attached Exhibit 1 does), the main change to the pleadings was the addition of language supporting one of
Plaintiff’sarguments in her Response to Defendant’s Motion to Compel Arbitration – ., that Plaintiff’s
employment did not arise from interstate commerce.
contend in her Motion for Sanctions that Defendant should have simply filed a reply to
Plaintiff’s Response by the submission date rather than amending the Motion to Compel
and extending the submission date. [Mtn. for Sanctions at p. 1 (complaining that
Defendant reset the submission da to the motion by the June 1,
2020 submission date”)]. If Defendant had taken that approach, Plaintiff would have had
no opportunity to address the arguments in the Reply, because any sur-reply would have
been outside the submission date, and Plaintiff would have been deprived of the last
word. Here, though, Plaintiff enjoyed an additional 10 days to address the points
Defendant raised in its Amended Motion and get the last word on the issue, which
apparently worked, since the Court denied Defendant’s Motion to Compel Arbitration.
While Plaintiff is correct to note that the evidence attached to Defendant’s
Amended Motion to Compel Arbitration could have been submitted at the time
Defendant filed its original Motion to Compel, Defendant had no way of anticipating the
need for evidence to authenticate certain documents. After all, if an opposing litigant
lodges no objection to authenticity, then there is no need to prove authenticity. Once
Plaintiff lodged her authenticity objection, and questioned whether the Dispute
Resolution Policy was, in fact, the one she acknowledging having received in January
2016, Defendant merely corrected the perceived defect, something Texas law routinely
permits in pleading practice, motion practice and during a tria
Given the multitude of authorities allowing for what Plaintiff calls a “second bite
at the apple,” Defendant’s amendment of its Motion to Compel to cure an unanticipated
perceived deficiency is simply not sanctionable conduct. Instead, Plaintiff offers nothing
more than a series of unsupported inferences, stacked upon one another, which is simply
To prevail under Chapter 10, there must be little or no basis for the claims, no
grounds for legal arguments, misrepresentation of law or facts, or legal action that is
sought in bad faith. Lake Travis Indep. Sch. Dist. v. Lovelace, 243 S.W.3d 244, 256–57
(Tex. App.—Austin 2007, no pet.) (citing Herring v. Welborn, 27 S.W.3d 132, 143 (Tex.
App.—San Antonio 2000, pet. denied). In her Motion for Sanctions, Plaintiff makes no
such allegation. Instead, her counsel admits to simply being annoyed at having to put
forth additional effort to defeat the Motion to Compel. [Mtn. for Sanctions at p. 3
(speculating that Defendant filed its Amended Motion to Compel Arbitration “to cause
counsel for Hastings to spend more time responding to facts and law in the original and
amended motions”); Response to Motion to Compel Arbitration, at p. 2]. That is not a
valid basis upon which to seek sanctions. Plaintiff has simply offered no evidence or
authority to overcome the presumption of good faith under Nath. There is nothing
improper – or even close to sanctionable – about a litigant who merely amends a motion
Plaintiff’s Opposed Motion
Date: July 13, 2020 Respectfully submitted,
EGISTERED
IMITED
IABILITY ARTNERSHIP
700 Louisiana, Suite 2300
I hereby certify that a true and correct copy of the foregoing instrument has been
served this 13th day of July, 2020 to all counsel of record who have appeared thus far in
d below using the method listed
Victoria Plante-Northington Via E-Service and or Email
5177 Richmond Avenue, Suite 1140
Houston, Texas 77056
victoria@plantelawfirm.com
Preview
§ § v. 164th Judicial District Defendant’s Response to Plaintiff’s Oppos The Court should deny the Opposed Motion for Sanctions filed by Plaintiff Billisha Hastings (“Hastings” or “Plaintiff”) seeking sanctions against Defendan McGuyer Homebuilders Inc. (hereinafter “ ” or “ ”) because (a) Plaintiff offers no evidence or persuasive legal authority to justify her request; (b) the conduct about which Plaintiff complains (filing an amended a motion to address arguments of their opponent and then extending a submission date as required by local rules) is not Argument and Authorities Chapter 10 of the Texas Civil Practice & Remedies Code allows a court to award sanctions for, among other things, pleadings filed with an improper purpose. ., 446 S.W.3d 355, 361 (Tex. 2014). Courts construe the phrase “improper purpose” as the equivalent of “bad faith” under Rule 13. , 198 S.W.3d 300, 321 (Tex. App.—Texarkana 2006, pet. denied). For purposes of imposing sanctions, “bad faith” is a difficult standard to meet. “Errors in judgment, lack of diligence, unreasonableness, negligence, or even gross neg more—do not equate to bad faith.” Brewer v. Lennox Hearth Products, LLC, —S.W.3d —,Case No. 18-0426, 2020 WL 1979321, at *10 (Tex., April 24, 2020), (June 12, 2020). Even a violation of a statute, rule or ethical standard does not ipso facto constitute bad faith for purposes of imposing sanctions. Instead, bad faith means “the conscious doing of a wrong for dishonest, discriminatory, or malicious purposes.” Mattly v. Spiegel, Inc., 19 n [14th Dist.] 2000, no pet.). Generally, courts presume pleadings and other papers are filed in good faith, and a party who wants Chapter 10 sanctions has the “heavy burden” to prove their right to such relief “with evidence.” Mann v. Kendall Home Builders Constr. Partners I, Ltd., 464 S.W.3d 84, 92 (Tex. App.—Houston [14th Dist.] 2015, no pet.); , 2020 WL 1979321 at *10 (holding that a party seeking sanctions under the court’s inherent authority must offer “direct or circumstantial evidence” of bad faith, but “absent direct evidence, the record must reasonably give rise to an inference of intent or willfulness.”). “Bad faith cannot be established by surmise or speculation,” , 464 S.W.3d at 92, nor can it be shown by mere arguments of counsel, which is not evidence. Thielemann v. Kethan, 371 S.W.3d 286, 295 (Tex. App.—Houston [1st Dist.] 2012, pet. denied). As shown below, Plaintiff has not met her burden to overcome the presumption of good faith, because not only does Plaintiff omit authority or evidence to support her arguments, but also the law proves that the challenged conduct was permissible and not sanctionable. Plaintiff’s request for sanctions relies solely upon T § 10.001(1), which permits sanctions where a signatory to a pleading or motion has presented that motion “for an improper purpose, including to harass or to cause unnecessary delay or needless increase in the costs of litigation.” [See Motion for at p. 3 (“Hastings seeks sanctions under the first reason under Section 10.001.”)]. Plaintiff claims that Defendant has violated Section 10.001(1) by (a) amending Defendant’s Motion to Compel Arbitration to combine into one document its Motion to Compel and its Reply to Plaintiff’s Response to that Motion so the Court would have fewer instruments to read; and (b) moving the submission date for the Amended Motion to ensure that Plaintiff received the 10 days’ notice required by Harris County Local Rule 3.3.3. [See Mtn. for Sanctions at p. 2 (stating that “[t]he only purposes that could be served by filing an amended motion are to harass, to deceptively reset the date on the motion to buy more time to file a Reply or Amended Motion, to cause unnecessary delay and to needlessly increase the cost of litigation, all blatant violations of Texas Civil Practice and Remedies Code §10.001(1)”) and p. 3 (“[t]he amended motion was brought for an improper purpose; namely to harass, to buy time to file a reply or an amended motion, and to cause counsel for Hastings to spend more time responding to facts and law in the original and amended motions.”)]. Plaintiff therefore argues that the mere filing of an amended motion and the resetting of the submission date to ensure that Plaintiff was given the notice required by local rules is tantamount to filing It is not improper – much less sanctionable – for a party to amend its motion, or reset the date upon which that motion will be submitted to the Court for ruling. Texas law allows parties to routinely amend pleadings and motions. For instance, Rule 63 allows a party to amend its pleadings at any time, so long as it is done consistent with 63. A party has a right to amend motions to correct deficiencies, like missing verifications for a motion to transfer venue or a special appearance. Tex. Consumer Fin. Corp., 494 S.W.2d 581, 582 (Tex. Civ. App.—Fort Worth 1973, no writ) (“Either party to a venue proceeding has a right to amend his venue pleadings … and [t]his right to amend includes the right to amend a defective plea of privilege that has not been properly verified.”); Dawson–Austin v. Austin, 968 S.W.2d 319, 322 (Tex. 1998) (holding that party may cure defect in unsworn special appearance by amendment to add verification after ruling on special appearance, as long as amendment is filed before there is general appearance). Rule 270 gives trial courts the liberal discretion to reopen evidence at trial “in the interest of permitting both sides to fully develop the case in the interest of justice.” In re Hawk, 5 S.W.3d 874, 877 (Tex. App.—Houston [14th Dist.] 1999, no pet.). Texas law even permits a non-movant to thwart a pending motion for summary judgment by amending the non-movant’s pleadings, so long as the amendment is filed at least seven days before the hearing. Yeske v. Piazza Del Arte, Inc ouston [14th Dist.] 2016, no pet.). In short, the mere amendment of a pending motion is not sanctionable, but is instead a common practice in courts around the state. Here, Defendant filed its Amended Motion to Compel Arbitration for a proper purpose. First, it did so to include a declaration to, among other things, authenticate certain documents, well before the original Motion to Compel was submitted to the Court for ruling. Second, Defendant filed its Amended Motion to Compel in lieu of a reply because Defendant’s counsel thought it more convenient for the Court if Defendant were to combine into one document its Motion to Compel Arbitration and retort to the arguments Plaintiff offered in opposition to that relief. After filing the amended Motion to Compel Arbitration, Defendant reset the submission date to give Plaintiff the requisite 10 days’ notice. IVIL 3.3.3. This conduct is permissible, and is no different than a party curing pleading defects in a motion to transfer venue or special appearance, or reopening trial evidence “to fully develop the case in the interests of justice.” It is also no different than what Plaintiff herself has done in this very case, which was to file a First Amended Petition to ensure that the arguments she was making in her Response to the original Motion to Compel were, in fact, supported by the pleadings. In addition, Plaintiff offers no evidence of prejudice. In fact, the procedure that Defendant employed in this instance actually favored Plaintiff. Plaintiff appears to Plaintiff filed her lawsuit on May 4, 2020 but filed an amended petition three weeks later, and just two days before Plaintiff filed her Response to Defendant’s initial Motion to Compel Arbitration. Comparing the two pleadings (as the attached Exhibit 1 does), the main change to the pleadings was the addition of language supporting one of Plaintiff’sarguments in her Response to Defendant’s Motion to Compel Arbitration – ., that Plaintiff’s employment did not arise from interstate commerce. contend in her Motion for Sanctions that Defendant should have simply filed a reply to Plaintiff’s Response by the submission date rather than amending the Motion to Compel and extending the submission date. [Mtn. for Sanctions at p. 1 (complaining that Defendant reset the submission da to the motion by the June 1, 2020 submission date”)]. If Defendant had taken that approach, Plaintiff would have had no opportunity to address the arguments in the Reply, because any sur-reply would have been outside the submission date, and Plaintiff would have been deprived of the last word. Here, though, Plaintiff enjoyed an additional 10 days to address the points Defendant raised in its Amended Motion and get the last word on the issue, which apparently worked, since the Court denied Defendant’s Motion to Compel Arbitration. While Plaintiff is correct to note that the evidence attached to Defendant’s Amended Motion to Compel Arbitration could have been submitted at the time Defendant filed its original Motion to Compel, Defendant had no way of anticipating the need for evidence to authenticate certain documents. After all, if an opposing litigant lodges no objection to authenticity, then there is no need to prove authenticity. Once Plaintiff lodged her authenticity objection, and questioned whether the Dispute Resolution Policy was, in fact, the one she acknowledging having received in January 2016, Defendant merely corrected the perceived defect, something Texas law routinely permits in pleading practice, motion practice and during a tria Given the multitude of authorities allowing for what Plaintiff calls a “second bite at the apple,” Defendant’s amendment of its Motion to Compel to cure an unanticipated perceived deficiency is simply not sanctionable conduct. Instead, Plaintiff offers nothing more than a series of unsupported inferences, stacked upon one another, which is simply To prevail under Chapter 10, there must be little or no basis for the claims, no grounds for legal arguments, misrepresentation of law or facts, or legal action that is sought in bad faith. Lake Travis Indep. Sch. Dist. v. Lovelace, 243 S.W.3d 244, 256–57 (Tex. App.—Austin 2007, no pet.) (citing Herring v. Welborn, 27 S.W.3d 132, 143 (Tex. App.—San Antonio 2000, pet. denied). In her Motion for Sanctions, Plaintiff makes no such allegation. Instead, her counsel admits to simply being annoyed at having to put forth additional effort to defeat the Motion to Compel. [Mtn. for Sanctions at p. 3 (speculating that Defendant filed its Amended Motion to Compel Arbitration “to cause counsel for Hastings to spend more time responding to facts and law in the original and amended motions”); Response to Motion to Compel Arbitration, at p. 2]. That is not a valid basis upon which to seek sanctions. Plaintiff has simply offered no evidence or authority to overcome the presumption of good faith under Nath. There is nothing improper – or even close to sanctionable – about a litigant who merely amends a motion Plaintiff’s Opposed Motion Date: July 13, 2020 Respectfully submitted, EGISTERED IMITED IABILITY ARTNERSHIP 700 Louisiana, Suite 2300 I hereby certify that a true and correct copy of the foregoing instrument has been served this 13th day of July, 2020 to all counsel of record who have appeared thus far in d below using the method listed Victoria Plante-Northington Via E-Service and or Email 5177 Richmond Avenue, Suite 1140 Houston, Texas 77056 victoria@plantelawfirm.com