                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-18-00055-CV



              BRIAN A. SMALE, Appellant

                           V.

          PAMELA ANN WILLIAMS, Appellee



          On Appeal from the 5th District Court
                 Cass County, Texas
               Trial Court No. 18C156




      Before Morriss, C.J., Burgess and Stevens, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                MEMORANDUM OPINION
       Brian A. Smale, a beneficiary of the John and Gwen Smale Living Trust, sued the trustee

of that trust, Pamela Ann Williams, for an accounting of trust assets and alleged her breach of

fiduciary duty for failing to list and distribute all trust assets. The trial court dismissed Smale’s

petition and awarded Williams $6,375.00 in attorney fees after it found that the same claims had

been raised and settled by Smale in a prior lawsuit. Smale, appearing pro se, does not challenge

that finding on appeal. Rather, Smale argues only that the trial court erred in granting Williams’

motion to dismiss without fourteen-days’ notice and a hearing, in awarding attorney fees, in failing

to enter findings of fact and conclusions of law, and in failing to bifurcate a defamation claim

allegedly asserted by Smale in his response to Williams’ dismissal motion. Smale also argues that

the trial court erred in granting Williams a continuance.

       Smale admits that he filed a petition “in three different courts” raising claims seeking an

accounting of the trust assets. Before filing this case in 2018 in the 5th Judicial District Court of

Cass County, Texas, Smale’s petition recited that he had filed a similar case in 2015 in the same

court, which was subsequently transferred to the Probate Court No. 2 of Dallas County, Texas

(Dallas Court). At the time of the 2015 transfer, the Dallas Court was resolving competing

applications from Smale and his sister, Williams, to probate their father’s will. In response to

Williams’ application, Smale raised counterclaims in front of the Dallas Court alleging breach of

fiduciary duties with respect to Williams’ failure to provide an accounting of trust assets. Smale’s




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petition here acknowledged that he signed a Mediated Settlement Agreement (MSA) in the Dallas

County case. 1 The Dallas Court approved the MSA and dismissed the claims on June 1, 2016.

         In this case, Smale’s petition demanded an accounting from Williams and asserted breach

of fiduciary duty and fraud for her failure to include two abbey crypts located at a Dallas-area

cemetery in the inventory of trust assets filed with the Dallas Court. Yet, his petition referenced

and attached a February 28, 2017, supplemental accounting filed by Williams in the Dallas Court

notifying it that Williams had mistakenly omitted the abbey crypts. The supplemental accounting

further stated that Smale was aware of the crypts titled in the name of the living trust, but failed to

bring them to the attention of the mediator. Smale attached to his petition emails authored by him

proving he was aware of the abbey crypts before the mediation resulting in the MSA. On

March 15, 2017, the Dallas Court approved the final accounting, and the administration of Smale

and Williams’ father’s estate was closed on June 29, 2017.

         Accordingly, in response to this lawsuit filed by Smale, Williams filed a motion to dismiss

Smale’s claims under Rule 91a of the Texas Rules of Civil Procedure. Williams referenced the

portions of Smale’s petition and attached documentation showing that Smale made the same claims

in the Dallas Court and that she had made the required accounting in front of that court. 2 Therefore,




1
 In the MSA signed on April 18, 2016, Smale agreed to discharge Williams from all claims “and allegations of any
kind and character whatsoever whether . . . known or unknown . . . , whether or not asserted in the . . . case . . . arising
out of or in any way connected to the events and transactions, which are related to the subject matter of this cause.”
The MSA also stated, “RESPECTIVELY, [SMALE’S] RELEASE . . . IS INTENDED TO END ALL LITIGATION
AND ALL POSSIBLE LITIGATION AND APPLIES TO AND IS EFEECTIVE FOR ANY AND ALL
CONCEIVABLE CAUSES OF ACTION BETWEEN THE PARTIES.”
2
The original petition in this case is virtually identical to the pleading raising the same issues in the case filed in the
Dallas Court.
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Williams argued that those claims were addressed by the MSA and were barred by res judicata.

Williams sought attorney fees under Rule 91a and submitted an affidavit from counsel on the issue.

The trial court granted the Rule 91a motion, dismissed Smale’s petition, and awarded the attorney

fees to Williams.

       We affirm the trial court’s judgment, because (1) Smale received adequate notice of the

hearing on the motion to dismiss, (2) an oral hearing on the motion to dismiss was not required,

(3) the award of attorney fees was proper, (4) Smale was not harmed by the trial court’s failure to

enter findings of fact and conclusions of law, (5) Smale’s petition did not assert a defamation

claim, and (6) Smale’s complaint regarding Williams’ continuance is moot.

(1)    Smale Received Adequate Notice of the Hearing on the Motion to Dismiss

       Smale argues that he did not receive adequate notice of the hearing on the motion to

dismiss. We disagree.

       Under Rule 91a of the Texas Rules of Civil Procedure, “a party may move to dismiss a

cause of action on the grounds that it has no basis in law or fact.” TEX. R. CIV. P. 91a.1. “A cause

of action has no basis in law if the allegations, taken as true, together with inferences reasonably

drawn from them, do not entitle the claimant to the relief sought.” Id. “Each party is entitled to

at least 14 days’ notice of the hearing on the motion to dismiss. The court may, but is not required

to, conduct an oral hearing on the motion.” TEX. R. CIV. P. 91a.6.

       Our record contains emails from the deputy district clerk demonstrating that she had

emailed the motion to dismiss to Smale on May 23, 2018. A delivery receipt showed that Smale




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received the clerk’s email. The trial court scheduled an oral hearing on the motion to dismiss on

June 8, thereby providing Smale with more than fourteen days’ notice.

       However, at the hearing, Smale claimed that he had not received the motion to dismiss,

which was also emailed by Williams’ counsel. The trial court issued an order stating that Smale

was served with “another copy” of the motion to dismiss in open court on June 8. On June 14,

Williams asked the trial court to rule on the dismissal motion without an oral hearing. On June

19, the trial court entered an order reciting that Smale’s “representation that he had not received a

copy of the Motion to Dismiss in response to the Court’s questioning appear[ed] to be false.” In

any event, the trial court gave Smale until June 25 to file a response to the motion to dismiss and

instructed him that it would rule on the matter on that date “without further oral hearing.”

       Smale received adequate notice. This point of error is overruled.

(2)    An Oral Hearing on the Motion to Dismiss Was Not Required

       Smale argues that he was entitled to an oral hearing on the motion to dismiss. A plain

reading of the foregoing rule of civil procedure demonstrates that the trial court was not required

to hold an oral hearing on the Rule 91a motion. We overrule this point of error.

(3)    The Award of Attorney Fees Was Proper

       Williams prayed for attorney fees and filed her counsel’s affidavit in support of the request.

On appeal, Smale does not challenge the sufficiency of the evidence supporting the amount of

attorney fees awarded by the trial court. Rather, he argues merely that attorney fees were not

allowed under Rule 91a.




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        However, under Rule 91a.7, titled “Award of Costs and Attorney Fee Required,” except in

actions involving the government, “the court must award the prevailing party on the motion all

costs and reasonable and necessary attorney fees incurred with respect to the challenged cause of

action in the trial court.” TEX. R. CIV. P. 91a.7; see ConocoPhillips Co. v. Koopmann, 547 S.W.3d

858, 880 (Tex. 2018). The trial court’s award of attorney fees was proper.

        We overrule this point of error.

(4)     Smale Was Not Harmed by the Trial Court’s Failure to Enter Findings of Fact and
        Conclusions of Law

        Smale also complains of the trial court’s failure to enter findings of fact and conclusions

of law in response to his timely request and notice of past due findings. Assuming without deciding

that the trial court was required to enter findings of fact and conclusions of law, we conclude that

its failure to do so was harmless. 3

        “The test for harm is whether the circumstances of the case require an appellant to guess

the reason for the trial court’s ruling and therefore prevent the appellant from properly presenting

its appeal.” Bluelinx Corp. v. Tex. Const. Sys., Inc., 363 S.W.3d 623, 631 (Tex. App.—Houston

[14th Dist.] 2011, no pet.) (quoting Gen. Elec. Capital Corp. v. ICO, Inc., 230 S.W.3d 702, 711

(Tex. App.—Houston [14th Dist.] 2007, pet. denied)). Here, Williams’ defense was based on the

argument that Smale’s claims were barred by res judicata. “When only a single ground of recovery

or a single defense is presented to the trial court, the record shows the appellant has suffered no




3
 Williams argues that findings of fact and conclusions of law were not required because the Rule 91a motion was
substantively a motion for summary judgment. However, the trial court dismissed Smale’s claims under Rule 91a
instead of entering a take-nothing summary judgment.
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harm because he is not forced to guess the reasons for the trial court’s judgment.” Mora v. Mora,

No. 04-17-00428-CV, 2018 WL 4903079, at *4 (Tex. App.—San Antonio Oct. 10, 2018, no pet.)

(mem. op.) (citing Misczak v. Deutsche Bank Nat’l Tr. Co., No. 02-15-00269-CV, 2016 WL

1393026, at *1 (Tex. App.—Fort Worth Apr. 7, 2016, no pet.) (mem. op.); Liberty Mut. Fire Ins.

v. Laca, 243 S.W.3d 791, 794 (Tex. App.—El Paso 2007, no pet.); Willms v. Americas Tire Co.,

190 S.W.3d 796, 801–02 (Tex. App.—Dallas 2006, pet. denied)).

       Smale was not harmed by the trial court’s failure to include findings of fact and conclusions

of law because the dismissal was based on the fact that Smale’s claims were raised and resolved

in prior litigation. Therefore, we overrule this point of error.

(5)    Smale’s Petition Did Not Assert a Defamation Claim

       Smale also argues that the trial court should have bifurcated a defamation claim allegedly

raised by him. Yet, Smale’s petition fails to include any claim for defamation against Williams.

The only reference to defamation is included in a June 15 pleading responding to Williams’ request

for a ruling without a hearing on her motion to dismiss. There, citing the Texas Lawyers’ Creed,

Smale asserted a “Counterclaim of Defamation Per Se” asserting that Williams’ attorney

“committed defamation per se with his signature affixed to Williams’ REQUEST FOR RULING

WITHOUT A HEARING” when he asserted that Smale “lied . . . to the Court as to his receipt of

service of the Motion to Dismiss.” Smale did not amend his petition to include claims against the

attorney or otherwise file and serve a petition against him. In other words, the attorney was not

otherwise a party to this case. Thus, Smale’s assertion of defamation made in his response to




                                                  7
Williams’ request for a ruling on her motion to dismiss without a hearing cannot be construed as

a petition against her attorney. We overrule this point of error.

(6)    Smale’s Complaint Regarding Williams’ Continuance is Moot

       Williams electronically filed a motion for continuance that mistakenly included the cause

number for the 2015 case previously filed by Smale. The trial court noticed the mistake, and the

clerk corrected the cause number on Williams’ motion for continuance. Smale argues that the trial

court erred in granting the continuance because it was filed in the wrong cause number and was

corrected only as a result of fraud committed by the court clerk. Smale also complains that the

motion for continuance failed to state that it was not filed for purposes of delay only.

         The trial court’s entry of the Rule 91a dismissal was dispositive and mooted Smale’s

complaint regarding any alleged error in the granting of Williams’ motion for continuance.

“Appellate courts are prohibited from deciding moot controversies.” Nat’l Collegiate Athletic

Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999). Accordingly, we overrule this point of error as moot.

       We affirm the trial court’s judgment.



                                               Josh R. Morriss, III
                                               Chief Justice

Date Submitted:        January 23, 2019
Date Decided:          February 8, 2019




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