REVERSE and REMAND in Part, AFFIRM in Part; Opinion Filed February 12, 2014.




                                          S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-12-01100-CV

                                 BARRY H. WELLS, Appellant
                                            V.
                                   MARC R. MAY, Appellee

                       On Appeal from the 417th Judicial District Court
                                    Collin County, Texas
                           Trial Court Cause No. 417-02600-2012

                              MEMORANDUM OPINION
                            Before Justices O'Neill, Myers, and Brown
                                    Opinion by Justice Brown
         After an incident at a deposition, Barry H. Wells sued Marc R. May, the attorney

representing Wells’s wife in their divorce, alleging causes of action for assault and terroristic

threat and also seeking a temporary restraining order and a temporary injunction against May.

Wells appeals the trial court’s order dissolving the temporary restraining order and also striking

his petition and dismissing his case with prejudice as sanctions. Because we conclude the trial

court abused its discretion in striking Wells’s petition and dismissing his lawsuit, we reverse that

portion of the trial court’s order and remand Wells’s causes of action for assault and terroristic

threat to the trial court for further proceedings. In all other respects, we affirm the trial court’s

order.
       Wells’s lawsuit against May was dismissed with prejudice three days after Wells filed his

original petition. In Wells’s petition and his supporting affidavit, filed on July 16, 2012, he

alleged that during a deposition in the divorce case, five days’ earlier, May began to berate the

deponent, Greg Nicholas, who worked for Wells. According to the petition and affidavit, when

Wells asked May to calm down, May became angry, and Wells made a comment about how the

suicide of May’s daughter was probably related to May’s anger issues. May became enraged and

demanded Wells leave the deposition. As Wells gathered his things, May moved closer and

screamed, “I’m gonna kill you!” Wells alleged May leaned across the table, jabbed his finger

toward Wells’s face and made repeated death threats. May said he was going to shoot Wells

with his gun. Wells further alleged that when he left the deposition, May pursued him through

the office and to the elevator. Wells left and drove to the police station to file a report. Wells

alleged that he lived only a few blocks from May and was now seriously in fear for his life.

Wells asserted he suffered anxiety, loss of appetite, fear, and sleeplessness. His petition alleged

causes of action for assault by threat of bodily injury and terroristic threat. Wells also asked for

an ex parte temporary restraining order and a temporary injunction prohibiting May from

communicating with him and coming within 300 feet of him, among other things. That same

day, July 16th, the trial court issued a temporary restraining order, in effect for fourteen days after

the date of entry, and set a hearing for the pending temporary injunction on July 30, 2012.

       The next day, July 17, 2012, May filed a motion to dissolve the temporary restraining

order and for sanctions. May asserted that the material allegations in Wells’s petition and

affidavit were “grossly inaccurate and misleading.” May alleged that there was a hearing

scheduled in the divorce action two days’ later, and unless the temporary restraining order was

dissolved, May would be in violation if he attended the hearing. May also argued that Wells’s

lawsuit was groundless and brought in bad faith and for purpose of harassment. He asked the

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court to impose “proper sanctions.” May attached to his motion a transcript from the deposition

of Nicholas. In his original answer filed on July 19, 2012, May entered a general denial and also

reasserted his claim for sanctions.

           On July 19, 2012, the trial court held a hearing on May’s motion to dissolve the

temporary restraining order and for sanctions. 1 The court heard testimony from May and Wells

and other witnesses. Further, a written transcript and an audio recording of the deposition of

Nicholas were admitted into evidence.                            This evidence shows that Wells, rather than May,

instigated the altercation, a fact omitted from Wells’s account of the incident in his pleading and

affidavit.       Specifically, when May was deposing Nicholas, Wells injected himself into the

deposition by questioning May’s choice of words, despite his own lawyer’s request to stop.

When May said that he was the one asking the questions, Wells told May, “Keep it down. Don’t

be so angry. You are an angry man. Don’t be so angry…You have anger issues.” When May

called Wells “a complete joke,” Wells made the comment about the suicide of May’s daughter.

After telling Wells more than once to leave, May told him, “You get … out of here before I kill

you,” and “If you come in here again and [sic] I will kill you.” May does not mention a gun

during the part of the altercation recorded by the court reporter. May testified at the hearing that

his daughter had not committed suicide, but rather died under other circumstances. At the

conclusion of the hearing, the trial court dissolved the temporary restraining order. The court

also sanctioned Wells under rules 13 and 215.2(b) of the rules of civil procedure by striking his

petition and dismissing the case with prejudice.

           At Wells’s request, the court made findings of fact and conclusions of law. Among other

things, the court found that Wells’s affidavit in support of his application for ex parte temporary

     1
        This suit was filed in the 417th District Court in Collin County. Due to illness, the presiding judge of the 417th District Court was unable
to be at the hearing. With the agreement of the parties, the Honorable Scott Becker, the judge in Wells’s divorce proceeding pending in the 219th
District Court, presided over this hearing and signed the order that is the subject of this appeal.



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restraining order contained material misrepresentations regarding the underlying factual basis

alleged for the restraining order. Further, the court found that Wells’s lawsuit was groundless,

had no basis in fact or law, and was brought for the purpose of harassment. This appeal

followed.

       In his first issue, Wells contends the trial court abused its discretion in dissolving the

temporary restraining order. By its terms, the temporary restraining order would have expired

fourteen days after it was entered in July of 2012. See TEX. R. CIV. P. 680. Consequently, all

issues relating to the temporary restraining order are moot. See Strange v. HRsmart, Inc., 400

S.W.3d 125, 132 (Tex. App.—Dallas 2013, no pet.); In re Sierra Club, No. 08-12-00236-CV,

2012 WL 5942912, * at 2-3 (Tex. App.—El Paso Nov. 28, 2012, no pet.); United Interests, Inc.

v. Sabel’s T.V. Serv., Inc., 698 S.W.2d 170, 172 (Tex. App.—Houston [14th Dist.] 1985, no

writ). We resolve Wells’s first issue against him.

       In his second issue, Wells contends for various reasons that the trial court abused its

discretion in granting May’s motion for sanctions and dismissing Wells’s case with prejudice.

May counters that Wells waived his complaints about the trial court’s sanctions by failing to

object as required by rule of appellate procedure 33.1. Wells contends, among other things, that

there was no evidence to support the imposition of sanctions. This complaint may be raised for

the first time on appeal. See McCain v. NME Hosps., Inc., 856 S.W.2d 751, 756 (Tex. App.—

Dallas 1993, no writ); cf. In re H.M.S., 349 S.W.3d 250, 256 (Tex. App.—Dallas 2011, pet.

denied) (to complain on appeal about inadequate notice of sanctions, party must object on that

basis in trial court); Parker v. Walton, 233 S.W.3d 535, 541 n.7 (Tex. App.—Houston [14th

Dist.] 2007, no pet.) (must present complaint that sanctions order lacks particularized findings of

good cause in trial court).




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       After notice and a hearing, rule 13 authorizes sanctions against a party who files a

pleading that is both groundless and brought in either bad faith or harassment. TEX. R. CIV. P.

13; McCain, 856 S.W.2d at 757. “Groundless” for purposes of rule 13 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. The available sanctions are set out in rule 215 and include the

striking of pleadings and dismissal of an action. TEX. R. CIV. P. 215.2(b). The purpose of rule

13 is to check abuses in the pleading process. McCain, 856 S.W.2d at 757. A party seeking

sanctions has the burden of establishing his right to relief. Arnold v. Life Partners, Inc., No. 05-

12-00092-CV, 2013 WL 4553379, at *3 (Tex. App.—Dallas Aug. 28, 2013, no pet.).

       We review a trial court’s imposition of sanctions under rule 13 for an abuse of discretion.

Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004); Arnold, 2013 WL 4553379, at *3. The test

for an abuse of discretion is not whether, in the opinion of the reviewing court, the facts present

an appropriate case for the trial court’s action, but whether the court acted without reference to

any guiding rules and principles. Cire, 134 S.W.2d at 838-39. The trial court’s ruling should be

reversed only if it was arbitrary or unreasonable. Id. Further, we are not bound by the trial

court’s findings of fact and conclusions of law; we must independently review the record to

determine whether the trial court abused its discretion. American Flood Research, Inc. v. Jones,

192 S.W.3d 581, 583 (Tex. 2006).

       Wells alleged two causes of action in his original petition, assault by threat and terroristic

threat. The elements of a civil assault mirror those of a criminal assault. Loaisiga v. Cerda, 379

S.W.3d 248, 256 (Tex. 2012). In the context of Wells’s allegations, a person commits assault if

he intentionally or knowingly threatens another with imminent bodily injury. See TEX. PENAL

CODE ANN. § 22.01(a)(2) (West Supp. 2013). As alleged here, person commits a terroristic

threat if he threatens to commit any offense involving violence to any person with intent to (1)

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place any person in fear of imminent serious bodily injury or (2) prevent or interrupt the

occupation or use of a building or room. See TEX. PENAL CODE ANN. § 22.07(a)(2) & (3) (West

2011).

         Although Wells’s pleading did not present an accurate picture of how the altercation

between him and May began and although his comment about May’s daughter was outrageous,

we cannot say that his claims do not have a basis in law or fact so as to be groundless. Wells’s

petition alleged that May assaulted him by intentionally or knowingly threatening him with

imminent bodily injury.           Wells also alleged that May committed a terroristic threat by

threatening to commit an offense involving violence to any person with intent to place any

person in fear of imminent serious bodily injury. As asserted in Wells’s pleading and as

evidenced by the transcript of the deposition, May threatened to kill Wells if he did not leave the

deposition. While Wells’s lawsuit may have been brought in poor taste or poor judgment, it was

not groundless. We conclude there is no evidence to support the trial court’s finding that Wells’s

pleading was groundless. Consequently, the trial court abused its discretion in striking Wells’s

petition and dismissing his lawsuit. Accordingly, we resolve Wells’s second issue in his favor.

         We reverse that portion of the trial court’s order striking Wells’s original petition and

dismissing the case with prejudice and remand Wells’s claims for assault and terroristic threat to

the trial court for further proceedings consistent with this opinion. In all other respects, we

affirm the trial court’s order.




                                                        /Ada Brown/
                                                        ADA BROWN
                                                        JUSTICE


121100F.P05
                                                  –6–
                                           S
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                         JUDGMENT

BARRY H. WELLS, Appellant                              On Appeal from the 417th Judicial District
                                                       Court, Collin County, Texas
No. 05-12-01100-CV           V.                        Trial Court Cause No. 417-02600-2012.
                                                       Opinion delivered by Justice Brown.
MARC R. MAY, Appellee                                  Justices O'Neill and Myers participating.

        In accordance with this Court’s opinion of this date, the order of the trial court is
AFFIRMED in part and REVERSED in part. We REVERSE that portion of the trial court's
order striking appellant Barry H. Wells's original petition in its entirety and dismissing the case
with prejudice. In all other respects, the trial court's order is AFFIRMED. We REMAND
Wells’s causes of action for assault and terroristic threat to the trial court for further proceedings
consistent with this opinion.
        It is ORDERED that each party bear his own costs of this appeal. The clerk of the
District Court is directed to release the full amount of the cash deposit to Barry H. Wells.


Judgment entered this 12th day of February, 2014.




                                                       /Ada Brown/
                                                       ADA BROWN
                                                       JUSTICE




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