      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-12-00702-CV



                                 Cynthia Schlapper, Appellant

                                                 v.

                 Rand K. Forest and Crosswater Yacht Club, L.P., Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
         NO. D-1-GN-12-001283, HONORABLE TIM SULAK, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Cynthia Schlapper appeals pro se from the trial court’s order dismissing her claims

against Rand K. Forest and Crosswater Yacht Club, L.P., ordering her to refrain from filing further

pleadings asserting such claims, and awarding Crosswater attorney’s fees. For the reasons that

follow, we affirm.


                     FACTUAL AND PROCEDURAL BACKGROUND

               This appeal arises from a long-running property dispute. Schlapper is the record

owner of a .416 acre tract near Lake Travis. In numerous cases and appeals, Schlapper has asserted

ownership to various tracts abutting and near her .416 acre tract.
Prior litigation

                In 2005, Schlapper filed suit against a number of individuals, including Forest,

Betty Hanson, and Dorothy Uzzell, and several business entities, all of whom had interests in lands

abutting or near Schlapper’s .416 acre tract. In the suit, Schlapper claimed title to all or part of those

neighboring tracts.1 The individual defendants disclaimed any ownership in the sued-for tracts, and

Harbor Ventures, Inc., intervened asserting its ownership. The trial court dismissed some of

Schlapper’s claims against the individuals, and following a bench trial, rendered judgment that

Schlapper take nothing as to the remainder of her claims against the individual defendants and her

claims against the original business entity defendants and awarded title to two tracts to Harbor

Ventures. Schlapper appealed to this Court, which affirmed the trial court’s judgment. See

Schlapper v. Forest, No. 03-06-00315-CV, 2010 Tex. App. LEXIS 7037, at *5 (Tex. App.—Austin

Aug. 24, 2010, pet. denied) (mem. op.).2

                In 2007, Hanson and Uzzell deeded four tracts that were part of the 2005 suit and are

located near Schlapper’s .416 acre tract to Crosswater (the Property). In 2009, Crosswater sued the

owner of a tract adjacent to the Property seeking declaratory and injunctive relief. Schlapper



        1
           In seven amended petitions, Schlapper claimed to own all or part of three to seven
neighboring tracts, claiming at various times to own “part of a larger unimproved tract that is in
easement [sic] to LCRA,” “a part (a partition) of a 4.0 acre estate of land,” and “more than one-third
of the approximately 2.72 acres” across the road from her .416 acre tract, and alternately referring
to the claimed property as “my land,” “my easement,” “my conservation easement,” and “the
partition.” See Schlapper v. Forest, No. 03-06-00315-CV, 2010 Tex. App. LEXIS 7037, at *5 (Tex.
App.—Austin Aug. 24, 2010, pet. denied) (mem. op.).
        2
          In 2008, in a related proceeding, this Court upheld the trial court’s finding that Schlapper
had not established indigency and was not entitled to a free record on appeal. See Schlapper
v. Forest, 272 S.W.3d 676 (Tex. App.—Austin 2008, pet. denied).

                                                    2
intervened in that action, asserting ownership to all or part of the Property, and Crosswater filed a

motion to strike her intervention. The trial court found that Schlapper’s asserted interests in the

Property had been previously adjudicated in the 2005 suit and that Schlapper had no justiciable

interest in the Property, granted the motion to strike intervention, and severed the claims Schlapper

asserted in her plea in intervention into a separate action (the severed action). There was no activity

in the severed action for more than a year. In 2011, an order granting a motion to retain the severed

action was signed. The order stated that Crosswater’s motion to retain had been considered.

Schlapper filed a motion for clarification to determine if the action was still open and pending.

Crosswater responded by filing a plea to the jurisdiction. The trial court determined that Crosswater

had not filed a motion to retain and the order had been inadvertently signed, vacated the order

granting the motion, and granted Crosswater’s plea to the jurisdiction. Schlapper did not appeal.


Instant Litigation

               In 2012, Schlapper filed the underlying action claiming title to “the same land

described in” the deed from Hanson and Uzzell to Crosswater that had also been involved in the

2005 suit, i.e., the Property. She sought a declaration that Forest was barred in the 2005 action from

asserting ownership claims to the Property and “quiet title to remove the cloud” on the Property

caused by the deed from Hanson and Uzzell to Crosswater. Forest and Crosswater filed a joint

motion for sanctions under Rule 13 and Chapter 10 of the Civil Practice and Remedies Code seeking

an order dismissing Schlapper’s claims based on res judicata, directing her to refrain from filing

further pleadings asserting an ownership interest in the Property, and awarding Forest and

Crosswater attorney’s fees. See Tex. R. Civ. P. 13; Tex. Civ. Prac. & Rem. Code §§ 10.001–.006.

                                                  3
The trial court granted the motion and subsequently signed an amended order to clarify and

specify the bases for its ruling.3 See Tex. R. Civ. P. 13; Tex. Civ. Prac. & Rem. Code § 10.005. This

appeal followed.


                                           DISCUSSION

               In nine issues, Schlapper argues that the trial court abused its discretion in granting

Crosswater’s motion for sanctions. In issues four, five, and seven, she contends that the trial court

erred in finding that her claims are barred by res judicata. In issues one through three and eight, she

argues that the evidence did not support a finding that her pleadings were groundless and brought

in bad faith or for purposes of harassment or delay, that the sanctions for suing Forest were

unreasonable and arbitrary, and that the order does not specify the bases for the sanctions as required

under Rule 13 and Chapter 10. In issue nine, Schlapper contends the trial court erred in admitting

into evidence the deed from Hanson and Uzzell to Crosswater. We will address Schlapper’s

arguments concerning res judicata, sanctions, and the admission of the deed in turn.4




       3
          Although both parties sought attorney’s fees in the joint motion, Forest withdrew his
request for attorney’s fees at the hearing, and the order awarded fees only to Crosswater.
       4
          In her sixth issue, Schlapper complains that the trial court improperly awarded the Property
to Crosswater in its order on the motion for sanctions. Her basis for this complaint is that “the order
says that Crosswater owns the property.” The order includes a finding of fact that Crosswater is the
record owner of the Property and refers to “Crosswater’s Property.” We do not construe these
statements to be an adjudication of Crosswater’s ownership of the Property. We overrule
Schlapper’s sixth issue.

                                                  4
Res Judicata

               Res judicata precludes parties from relitigating claims that have been finally

adjudicated by a court of competent jurisdiction and related matters that could have been

adjudicated. Igal v. Brightstar Info. Tech. Grp., Inc., 250 S.W.3d 78, 86 (Tex. 2008). Res judicata

applies if (1) there is a prior final judgment on the merits; (2) the present proceeding is based on the

same claims as were raised or could have been raised in the prior action; and (3) the parties in the

present proceeding or parties in privity with them were parties to the prior proceeding. Id. Schlapper

does not dispute that this action involves the same claims as the previous actions or that Crosswater

is in privity with Hanson and Uzzell as to the Property. She does, however, argue that there is no

final judgment on the merits and that the trial court erred in finding that she lost in the previous

cases. She contends that the dismissal of her claims against Hanson and Uzzell in the 2005 action

resulted in her being determined the “undisputed owner” of the tracts they disclaimed and that it is

Forest and Crosswater who are barred by res judicata. According to Schlapper, her claims against

Crosswater have never been heard on the merits because Crosswater “keep[s] filing [motions] to

keep postponing it forever.”5




       5
          Schlapper also argues that the trial court erred in ruling on Forest’s and Crosswater’s
affirmative defense of res judicata in connection with their motion for sanctions because the “proper
procedure” for determining res judicata is summary judgment. We do not find this argument
persuasive. A trial court may hear a party’s motion that is properly filed and set for hearing.
Schlapper does not contend that the motion was improperly filed or set, and the record shows that
in their motion Forest and Crosswater sought dismissal and attorney’s fees as sanctions, Schlapper
had the opportunity to and did file a written response, and a hearing was held in which she
participated. Schlapper also asks that we review her appeal under the standard applied to appeals
of summary judgments. There is no summary judgment ruling before us, and we decline to apply
the summary judgment standard of review.

                                                   5
                   Schlapper misconstrues the legal effect of the 2005 judgment and this Court’s

affirmance and appears to misunderstand the legal effect and finality of a pretrial dismissal on the

merits. Although the record is far from clear, Schlapper asserted in her petition below and argues

repeatedly on appeal that the Property is the same property to which she claimed title in the 2005

action.6 Assuming that to be true, those claims were dismissed with prejudice pretrial or denied in

the trial court’s take-nothing judgment following a bench trial, which this Court affirmed. See

Schlapper, 2010 Tex. App. LEXIS 7037, at *2, 30. Contrary to Schlapper’s understanding, the

dismissal and judgment were an adjudication that Schlapper does not own title to the Property. See

id. Further, Schlapper’s claim to the Property was also adjudicated in the 2009 action, in which her

plea in intervention was stricken on the ground that she has no justiciable interest in the Property and

her claims severed and ultimately dismissed. Rather than appeal that dismissal, Schlapper brought

this action, once again asserting ownership to the Property, which resulted in dismissal on the basis

of res judicata.

                   To have standing to bring suit—and therefore to be entitled to a trial on the merits of

her ownership claims to the Property—Schlapper must cross a threshold and demonstrate that she

has a justiciable interest in the subject matter of the suit. See Jenkins v. Jenkins, 991 S.W.2d 440,

444 (Tex. App.—Fort Worth 1999, pet. denied) (standing concerns whether plaintiff is personally

aggrieved and therefore has justiciable interest in the controversy); see also Black’s Law Dictionary

944 (9th ed. 2009) (defining “justiciable” as “properly brought before a court of justice; capable of


        6
         As noted above, the appellate record in the appeal of the 2005 suit reflected that in her
various petitions Schlapper asserted ownership to a number of different tracts described in varying
language. See Schlapper, 2010 Tex. App. LEXIS 7037, at *5.

                                                     6
being disposed of judicially”). In neither this case nor any of the prior proceedings has she been able

to do so. At no time has she produced any evidence that she owns any property other than the

.416 acre tract and an access easement to Lake Travis across the two tracts awarded to Harbor

Ventures in the 2005 suit. See Schlapper, 2010 Tex. App. LEXIS 7037, at *17–19 (concluding that

deed on which Schlapper relied conveyed only .416 acre tract and ingress/egress easement over

neighboring tracts). In both the 2005 action and the 2009 action, it was determined that Schlapper

failed to establish ownership of the Property. As the trial court in this case observed, there may

never have been an adjudication as to who does own the Property, but it has been finally adjudicated

that Schlapper does not. We conclude that the trial court did not err in finding Schlapper’s claims

barred by res judicata. See Igal, 250 S.W.3d at 86. We overrule issues four, five, and seven.


Sanctions

                We generally review a trial court’s award of sanctions for an abuse of discretion. See

American Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006) (per curiam). A trial

court abuses its discretion if its ruling is arbitrary, unreasonable, or without reference to any guiding

rules or legal principles. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000) (per curiam).

A trial court abuses its discretion in imposing sanctions only if it bases its order on an

erroneous view of the law or a clearly erroneous assessment of the evidence. Robson v. Gilbreath,

267 S.W.3d 401, 405 (Tex. App.—Austin 2008, pet. denied); Monroe v. Grider, 884 S.W.2d 811,

816 (Tex. App.—Dallas 1994, writ denied). Because the amended order here cites Forest’s and

Crosswater’s request for sanctions under both Rule 13 and Chapter 10 and tracks language from both

provisions, we may review the order under the standard of either provision. See Tex. R. Civ. P. 13;

                                                   7
Tex. Civ. Prac. & Rem. Code § 10.005; Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007) (reviewing

order in light of Chapter 10 because trial court’s written order specifically ordered sanction pursuant

to penalty provision of chapter 10); cf. American Flood Research, 192 S.W.3d at 583–84 (where

order imposing sanctions neither referred to nor tracked any language of specific rule, analysis

governed by language of any rule cited in motion).

               Schlapper argues that her petition was not groundless because her ownership of the

Property was established as a matter of law in the 2005 action, Forest and Crosswater are estopped

by the disclaimers of Hanson and Uzzell and barred by res judicata from asserting claims to the

Property, and her claims therefore have a reasonable basis in the law. She contends there is no

evidence of any malicious purpose on her part that would constitute bad faith or intent to harass,

cause delay, or waste judicial resources because she merely filed suit to get relief and get her

property back. Finally, she argues that the order fails to specify the good cause on which the

sanctions are based and that the findings that purport to state good cause are all either immaterial

or false.

               Under Rule 13, a trial court may sanction a party whose pleading is groundless and

brought in bad faith or groundless and brought for purpose of harassment. See Tex. R. Civ. P. 13.

“Groundless” means there is no basis in law or fact and the pleading is not warranted by a good faith

argument for the extension, modification, or reversal of existing laws. See id. Groundlessness turns

on the merits of the claim. Harrison v. Harrison, 363 S.W.3d 859, 863 (Tex. App.—Houston [14th

Dist.] 2012, no pet.). In determining whether a claim is groundless, a court looks to the facts

available to the litigant and the circumstances at the time the pleading was filed. Id.; In re United



                                                  8
Servs. Auto. Ass’n, 76 S.W.3d 112, 116 (Tex. App.—San Antonio 2002, orig. proceeding).

Schlapper’s challenges to the trial court’s finding that her petition was groundless are based on

essentially the same arguments as her challenge to the trial court’s finding that her claims are barred

by res judicata. We have already concluded that it has previously been adjudicated that Schlapper

does not own any interest in the Property. In multiple pleadings and proceedings, Schlapper has

failed to produce any evidence of ownership of the Property, and her claims have been repeatedly

stricken, dismissed, or adjudicated against her. At the time she filed her petition in this suit, she was

well advised that there is no basis in law or fact for her claims that she owns the Property.7 Res

judicata barred Schlapper’s claims, and this action was groundless as a matter of law. See Campos

v. Ysleta Gen. Hosp. Inc., 879 S.W.2d 67, 73 (Tex. App.—El Paso 1994, writ denied). Based on the

facts available to Schlapper and the circumstances at the time she filed her petition in this case, we

conclude that the trial court did not abuse its discretion in determining that Schlapper’s petition was

groundless. See Tex. R. Civ. P. 13; Harrison, 363 S.W.3d at 863; Robson, 267 S.W.3d at 406 (trial

court did not abuse discretion in finding negligent entrustment claim groundless where plaintiff did

not conduct reasonable inquiry prior to filing and alleged facts did not support such claim).

                “A party acts in bad faith when discovery puts him on notice that his understanding

of the facts may be incorrect, and he does not make reasonable inquiry before filing a pleading.”




        7
            Schlapper includes a subheading in her brief tracking the language of Chapter 10
concerning extension, modification, or reversal of existing law, which is comparable to language in
Rule 13. However, she argues only that her claims are “supported by law” and has therefore waived
any contention that they are warranted by a nonfrivolous or good faith argument for extension,
modification, or reversal of existing law under either Chapter 10 or Rule 13. See Tex. R. App.
P. 38.1(i).

                                                   9
Robson, 267 S.W.3d at 407; Monroe, 884 S.W.2d at 819. In the context of Rule 13 sanctions,

“[r]easonable inquiry means the amount of examination that is reasonable under the circumstances

of the case.” Robson, 267 S.W.3d at 406; Monroe, 884 S.W.2d at 817. Bad faith is more than bad

judgment or negligence; it means the conscious doing of a wrong for dishonest, discriminatory, or

malicious purpose. Thielemann v. Kethan, 371 S.W.3d 286, 294 (Tex. App.—Houston [1st Dist.]

2012, pet. denied); Robson, 267 S.W.3d at 407. A party cannot avoid sanctions by claiming he was

not acting with malicious or discriminatory purpose in bringing his claim. Monroe, 884 S.W.2d at

819. “In deciding whether pleadings are filed in bad faith . . . , the trial court must measure the

litigant’s conduct at the time the relevant pleading was filed.” Harrison, 363 S.W.3d at 863 (citing

Dike v. Peltier Chevrolet, Inc., 343 S.W.3d 179, 191 (Tex. App.—Texarkana 2011, no pet.)).

                Here, the record shows that despite numerous written decisions finding that Schlapper

has failed to establish ownership of the Property—including one upheld by this Court—and oral

explanations from the trial courts as to why she has failed to establish ownership and why any further

such claims are barred, Schlapper once again asserted in her petition that her ownership of the

Property is undisputed.8 Schlapper cannot avoid sanctions merely by asserting that she had no

malicious purpose. See Monroe, 884 S.W.2d at 819. In the face of Schlapper’s apparent refusal to


        8
          On appeal, Schlapper continues to assert that she is “entitled to a trial and . . . to a judgment
showing that [she is] the undisputed owner of the property.” Schlapper notes the trial court’s
remarks that it was obvious she is a “woman of intelligence and . . . commitment” who was trying
“to get some kind of understanding, get some kind of resolution in something that is consistent with
the law, with the procedures, and with fairness.” However, the trial court also explained to her that
it has been judicially determined that she has no interest in the Property and that the court was
seeking to give her “as much clarity and understanding” as possible about why Forest and
Crosswater were seeking the relief they sought and why their request was being given “very serious
consideration by this Court.”

                                                    10
accept the express language of the deeds in evidence and abide by prior court decisions and

advisories from the bench, the trial court could have reasonably concluded that—just as a party can

fail to make reasonable inquiry when discovery puts him on notice that his understanding of the case

may be wrong—Schlapper failed to sufficiently consider the facts, evidence, and procedural history,

which put her on notice that her understanding of the case is wrong, before filing yet another

pleading asserting the same claims. We conclude that the trial court did not abuse its discretion in

determining that Schlapper’s claims were brought in bad faith. See Robson, 267 S.W.3d at 406;

Monroe, 884 S.W.2d at 817 (trial court did not abuse discretion in finding bad faith where plaintiff’s

repeated response to requests for admission of “unknown to plaintiff” showed no reasonable inquiry

prior to filing).

                    Finally, Schlapper complains that the trial court’s order failed to state the particulars

of good cause for the award of sanctions.9 Rule 13 requires that “[n]o sanctions under this rule may

be imposed except for good cause, the particulars of which must be stated in the sanction order.”

See Tex. R. Civ. P. 13. Failure to comply with this directive is an abuse of discretion. Robson,

267 S.W.3d at 407; Texas-Ohio Gas, Inc. v. Mecom, 28 S.W.3d 129, 135 (Tex. App.—Texarkana

2000, no pet.). Schlapper contends that there is nothing in the order “that gives any reason

whatsoever that [her] claim against Crosswater is groundless and brought in bad faith” and that the

findings stated in the order are either irrelevant, false, or outside the record. The trial court’s


        9
          Schlapper also argues that the award of sanctions against her for suing Forest are
unreasonable and arbitrary because he was not a party to the 2009 suit. Schlapper’s claims for
declaratory relief against Forest are based on her claims of ownership of the Property, and our
conclusion that the trial court did not abuse its discretion in finding that claim groundless and
brought in bad faith applies to her claims against Forest as well.

                                                       11
amended order includes nine findings reciting the procedural history of Schlapper’s claims, including

the finality of the prior judgment and orders in the trial court and this Court, and noting that

despite the prior rulings, Schlapper continued to file repeated lawsuits and pleadings against Forest

and Crosswater.

                We conclude that the trial court’s order complies with the Rule 13 requirement to

specify the good cause for the sanctions and that the trial court did not abuse its discretion. See Tex.

R. Civ. P. 13; cf. Overman v. Baker, 26 S.W.3d 506, 511–12 (Tex. App.—Tyler 2000, no pet.) (trial

court abused discretion where order stated only that application was brought in bad faith and that

good caused existed without specifying acts or omissions on which sanctions were based); Tarrant

Cnty. v. Chancey, 942 S.W.2d 151, 155 (Tex. App.—Fort Worth 1997, no writ.) (trial court abused

discretion where order stated only that motion was filed for harassment and other improper purposes

without specifying conduct on which sanctions were based). Because we conclude that the trial court

did not abuse its discretion in ordering sanctions under Rule 13, we need not consider whether

sanctions were appropriate under the standards of Chapter 10. See Tex. R. App. P. 47.1, 47.4;

American Flood Research, 192 S.W.3d at 583–84. We overrule issues one through three and eight.


Admission of Deed into Evidence

                In her ninth issue, Schlapper complains that the trial court erred in admitting into

evidence Crosswater’s deed to the Property. Forest and Crosswater contend that Schlapper has

waived any complaint on appeal on this issue. We agree. Although Schlapper filed written

objections to the admission of the deed into evidence, she neither obtained a ruling on her

pre-hearing objections nor objected to the admission of the deed at the hearing. Therefore, she has

                                                  12
failed to preserve this issue for appellate review. See Tex. R. App. P. 33.1(a)(1); City of Fritch

v. Coker, No. 07-13-00287-CV, 2014 Tex. App. LEXIS 2326, at *10 (Tex. App.—Amarillo

Feb. 27, 2014, pet. filed ) (mem. op.) (incumbent on party to obtain ruling on objection to evidence

to preserve issue for appeal). Even if Schlapper had not waived this issue, however, we would not

find her arguments persuasive. The trial court’s order does not adjudicate Crosswater’s ownership

of the Property, and the deed itself was immaterial to the trial court’s determination that Schlapper’s

claim to the Property had been previously adjudicated and her petition was groundless and brought

in bad faith—a determination we have already concluded is supported by the record. Therefore, any

error in the admission of the deed into evidence is harmless. See Tex. R. App. P. 44.1(a) (providing

for reversal only if error probably caused rendition of improper judgment or probably prevented

appellant from properly presenting case to court of appeals); G & H Towing Co. v. Magee,

347 S.W.3d 293, 297 (Tex. 2011) (per curiam) (harmless error rule applies to all errors); Gray

v. Sangrey, 428 S.W.3d 311, 318 (Tex. App.—Texarkana 2014, pet. denied) (admission of hearsay

testimony, even if error, harmless where sufficient admissible evidence supported challenged

findings and conclusions). We overrule Schlapper’s ninth issue.


                                          CONCLUSION

               Having overruled Schlapper’s issues, we affirm.




                                                  13
                                           _____________________________________________

                                           Melissa Goodwin, Justice

Before Chief Justice Jones, Justices Puryear and Goodwin

Affirmed

Filed: July 30, 2014




                                             14
