        TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-01-00047-CV



                                   John Sutphin, Jr. Appellant

                                                 v.

                        Tom Arnold Drilling Contractor, Inc., Appellee

                                                 &

                                 In re John Sutphin, Jr., Relator



         FROM THE COUNTY COURT AT LAW NO. 1 OF WILLIAMSON COUNTY
           NO. 4079, HONORABLE KEVIN HENDERSON, JUDGE PRESIDING



               In a consolidated mandamus and appeal proceeding, John Sutphin, Jr. challenges the

trial court’s order holding him in contempt, assessing a fine for each act of contempt, and awarding

attorney’s fees to appellee/respondent Tom Arnold Drilling (“Arnold”).1 Based on Arnold’s

concession on the issue of attorney’s fees, we will modify the trial court’s judgment to eliminate the

award of attorney’s fees, and, as modified, affirm. Tex. R. App. P. 42.3(b).


                              Factual and Procedural Background

               Following our decision in John Sutphin, Jr. v. Tom Arnold Drilling Contractor, Inc.,

17 S.W.3d 765, 775 (Tex. App.—Austin 2000, no pet.) (Sutphin I), that the Williamson County



    1
       The petition for writ of mandamus was initially filed as cause 03-01-00046-CV. It was
consolidated into cause 03-01-00047-CV, John Sutphin, Jr. v. Tom Arnold Drilling Contractor, Inc.
Court at Law had jurisdiction over Sutphin to hold a show cause hearing to determine whether he

was in contempt, that court held such a hearing at which Sutphin appeared and testified. The trial

court found Sutphin in contempt for filing two false affidavits2 containing three false statements in

each affidavit, for a total of six false statements. (In each affidavit, two statements are identical for

a total of four. In the two affidavits there is an additional statement in each not the same, which the

court found to be false.) The court found Sutphin in contempt and fined him $500 for each statement

for a total fine of $3000. The court also awarded attorney’s fees from Sutphin to Arnold as a

sanction. Sutphin brought a petition for writ of mandamus from the judgment, contending that there

is no direct appeal from a contempt judgment. Sutphin also, in an abundance of caution, brought a

direct appeal on the attorney’s fees issue, maintaining those to be improper. Arnold has now

conceded in the direct appeal that the attorney’s fees awarded are improper and seeks a remand to

pursue those fees against Semco, the corporation. Under the posture of the case, a remand would

be improper because Arnold sought the show cause only against Sutphin individually; accordingly,

the judgment on appeal is against Sutphin, not Semco. Therefore, based on Arnold’s concession, we

modify the judgment against Sutphin to eliminate the award of attorney’s fees. We now proceed to

a discussion of the contempt order and fine.




   2
      As discussed in Sutphin I, the affidavits at issue were filed in support of a special appearance
by Semco in trial court cause 4079, which was dismissed based on the grant of Semco’s special
appearance. Sutphin is the president and sole stockholder of Semco. Sutphin, 17 S.W.3d at 767.
We will not repeat the entire discussion from Sutphin I of the factual and procedural history of the
case.

                                                   2
                                             Discussion

               A contempt order that involves only a fine, not confinement, is reviewed through a

mandamus action. In re Long, 984 S.W.2d 623, 625 (Tex. 1999); Kidd v. Lance, 794 S.W.2d 586,

587 n.1 (Tex. App.—Austin 1990, orig. proceeding). The parties agree that the standard of review

is abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). A court abuses its

discretion when it acts in an unreasonable or arbitrary manner or when the court acts without

reference to any guiding rules or principles. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226

(Tex. 1991). The parties join issue over whether the contempt is civil or criminal. The judgment

punishes Sutphin for past acts; no action on his part will allow him to avoid payment of the fine. It

is therefore a judgment for criminal contempt. Cadle Co. v. Lobingier, 50 S.W.3d 662, 667 (Tex.

App.—Fort Worth 2001, pet. denied); Ex parte Busby, 921 S.W.2d 389, 391 (Tex. App.—Austin

1996, pet. ref’d).

               Sutphin contends that the burden of proof at trial was “beyond a reasonable doubt.”

In essence, Sutphin argues that there is no evidence to support the trier of fact’s “verdict” of

contempt.3 Under an abuse of discretion review, legal sufficiency is not an independent ground of

error, but a relevant factor in assessing whether the trial court abused its discretion. See Doyle v.


   3
       Sutphin argues throughout that the statements made in the affidavits to support the special
appearance are “conclusory.” See Sutphin, 17 S.W.3d at 767. Consequently, he argues that
conclusory statements cannot be false. If the trial court relied on these conclusory statements, that
reliance was improper, Sutphin contends. As discussed in Sutphin I, a special appearance is peculiarly
dependent on affidavits. Id. at 772. Sutphin cannot present affidavits in a judicial proceeding,
achieve his desired result for his corporation, then repudiate those affidavits as “conclusory” and
inadequate to support the result. See generally Newman v. Link, 889 S.W.2d 288, 289 (Tex. 1994)
(doctrine of estoppel to appeal based on acceptance of benefits of judgment); Cooper v. Bushong,
10 S.W.3d 20, 23 (Tex. App.—Austin 1999, pet. denied) (same).

                                                  3
Doyle, 955 S.W.2d 478, 479 (Tex. App.—Austin 1997, no pet.). When the appellate court reviews

the evidence in a criminal case, it determines whether any rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319

(1979). We review the evidence in the light most favorable to the verdict. Id. In a mandamus, we

do not weigh the evidence that supports the trial court’s contempt finding; we determine whether a

contempt judgment is void because there is no evidence of contempt. Long, 984 S.W.2d at 625.

               The trial court held a hearing on the motion to show cause. The court had before it

evidence showing a volume of business done and contacts with Texas that contradicted the

statements made in the affidavits about the lack of business and sales in Texas.4 These affidavits were

signed under oath, as shown by the affidavits. These statements were filed to support the claim that

Semco was not amenable to the trial court’s jurisdiction; as such, Sutphin intended for the court to

rely on them. Sutphin swore that these statements were within his personal knowledge. The

documentary evidence covered the period about which Sutphin testified in his affidavit and

constituted evidence that he knew the statements were false when made. The trial court found it had

relied on these statements in granting the special appearance.

               The evidence is sufficient to support the trial court’s findings of fact. The trial court

did not abuse its discretion by concluding that Sutphin committed acts of contempt against the court.

Accordingly, we deny Sutphin’s petition for writ of mandamus. As discussed above, Arnold has


  4
    As discussed in Sutphin I, during discovery in the federal diversity action filed by Arnold against
Semco, Arnold gained access to the contents of a motor vehicle dealer complaint file maintained by
the Colorado Department of Revenue that showed systematic and continuous business dealings in
Texas from 1996 to 1998. Sutphin, 17 S.W.3d at 767. The trial court at the contempt hearing also
had before it evidence in the form of business records from Texas businesses.

                                                  4
conceded the issue of attorney’s fees. Therefore, we modify the trial court’s judgment to eliminate

the award of attorney’s fees, and as modified, affirm.




                                              Mack Kidd, Justice

Before Justices Kidd, B. A. Smith and Puryear

Mandamus Denied; Modified and, as Modified, Affirmed

Filed: February 14, 2002

Do Not Publish




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