      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-18-00258-CV



                              Derek Robert Van Gilder, Appellant

                                                  v.

                                Donna Jean Van Gilder, Appellee


    FROM THE DISTRICT COURT OF BASTROP COUNTY, 423RD JUDICIAL DISTRICT
          NO. 423-3263, HONORABLE JAMES D. SQUIER, JUDGE PRESIDING



                            M E M O R A N D U M O P I N I O N1


                  Derek Robert Van Gilder appeals from the trial court’s order awarding

Donna Jean Van Gilder, a/k/a Donna Thomson, $500 in damages and $4,000 in attorney’s fees.

Donna filed a motion to enforce the parties’ mediated settlement agreement in their reopened divorce

proceeding.2 For the reasons that follow, we affirm the trial court’s order in part and reverse and

render in part.




       1
         Notice of appeal for this case was originally filed in this Court in September 2016, at which
time the case was transferred to the El Paso Court of Appeals in compliance with a
docket-equalization order issued by the Texas Supreme Court. On April 12, 2018, the
Texas Supreme Court ordered that certain cases be transferred back to this Court from the El Paso
Court, and we consider this appeal pursuant to that order. See Misc. Docket No. 18-9054 (Tex.
Apr. 12, 2018).
       2
        Because it is not clear from the record whether Donna legally changed her surname from
Van Gilder to Thomson after the parties’ divorce, we refer to the parties by their first names.
                      FACTUAL AND PROCEDURAL BACKGROUND

               Derek and Donna were divorced in 2014. They entered into a mediated settlement

agreement (MSA), which included a confidentiality agreement, and the nonconfidential portion was

filed in the trial court. See Tex. Fam. Code § 6.602(b) (providing conditions under which MSA is

binding), (c) (providing that MSA that meets conditions entitles party to judgment on MSA

notwithstanding any other rule of law). The MSA provided that “upon a finding of breach of the

confidentiality agreement by a finder of fact, such breach shall result in a liquidated damages

sanction in the amount of $25,000.00 payable to the benefit of the other party, together with all

attorney’s fees and costs to prosecute enforcement of the agreement.” The trial court approved the

MSA and signed a final decree of divorce. Soon after entry of the decree, Derek filed a motion to

reopen the case and an application for a temporary restraining order, temporary injunction, and

permanent injunction. The MSA awarded the marital residence to Derek as his separate property but

also provided that Donna was allowed to reside there for a certain time. Derek sought to remove

Donna from the marital residence based on alleged violations of the MSA by Donna concerning her

use of the home. The parties agreed to an order that placed restrictions on Donna’s use of the marital

residence and provided for certain other agreements concerning the property. The order also required

the parties to adhere to the terms of the divorce decree and provided that if a finder of fact

determines that a party has violated the terms of the decree or the MSA, that party shall pay the other

party $25,000 and any attorney’s fees and costs.

               Thereafter, both parties filed a series of motions to enforce the MSA. In her “Third

Amended Motion for Enforcement and Request for Restraining Order,” Donna alleged that Derek



                                                   2
had violated certain provisions of the MSA by “stalking” and “harassing” her. Specifically, she

alleged that in returning personal items to her, Derek had included a video game entitled “Whose

[sic] the Pervert Now” and a photograph taken by a security camera that Derek had placed in the

backyard of the marital residence. The photograph was of an unclothed man in the yard with Donna.

She also alleged that Derek had returned a photograph of her parents to her by placing it face down

on her car windshield and that he had made derogatory comments about her to various individuals.

Donna contended that Derek’s actions violated the confidentiality provision of the MSA and its

requirement that the parties surrender all photographs that disparage the other party. She sought to

have the original photograph of the unclothed man released to the court, the security camera tape

erased, and Derek restrained from coming within 200 feet of Donna and ordered to pay a sanction

in the amount of $25,000 for violation of the MSA, along with Donna’s attorney’s fees and costs.

Derek filed responses to Donna’s motions for enforcement and sought sanctions under Rule 13 for

Donna’s filing of groundless pleadings. See Tex. R. Civ. P. 13 (providing for sanctions against party

who files pleadings that are (1) groundless and (2) brought in bad faith or for purpose of harassment).

               A hearing was held on Donna’s third amended motion for enforcement on

August 25, 2015. Donna presented her evidence and rested. After Derek presented the testimony

of one witness, the trial court recessed the hearing. Donna then requested that she be allowed to

prove up her attorney’s fees, and the trial court responded that she could do so when the hearing

resumed. On October 28, 2015, Donna filed her “Fourth Amended Motion for Enforcement and

Request for Attorney’s Fees,” in which she asserted only two new claims for amounts owed under

the MSA that Derek had allegedly failed to pay for the prior two months. When the recessed hearing



                                                  3
resumed on November 3, 2015, Derek did not object to the late filing of Donna’s fourth amended

motion for enforcement but contended that Donna had abandoned her claim for violation of the MSA

asserted in her third amended motion by omitting it in the fourth amended motion. Derek also

argued that at the prior hearing, Donna had rested without putting on evidence of attorney’s fees and

should not be allowed to do so at the resumed hearing. The trial court decided to proceed with

the hearing on the claim asserted in Donna’s third amended motion for enforcement, Derek

completed his presentation of evidence, and the trial court allowed Donna to put on evidence of her

attorney’s fees.

                At the conclusion of the hearing, the trial court awarded Donna $500 in actual

damages and $4,000 in attorney’s fees for “several instances of unwanted attention rising to the level

of harassment.” The trial court expressly declined to rule on whether Derek had violated the terms

of the MSA but denied all relief not expressly granted and awarded Derek $2,500 as sanctions

against Donna for filing frivolous pleadings.3 These rulings were committed to a written order

signed June 20, 2016, in which the trial court clarified that it had granted leave for Donna to file her

fourth amended motion for enforcement and had found that by filing it, Donna had not abandoned

the relief requested in her third amended motion for enforcement. Derek requested findings of fact




       3
         After the trial court pronounced its rulings, Derek’s attorney asked if the trial court was
making a finding that the MSA was violated. The trial court responded:

        Well, I worded that there were instances of unwanted attention that I will call
        harassment, which could be a freestanding cause of action. I ordered that there were
        sanctions for frivolous claims, which are the basis of the attorney’s fees you’re
        getting. I don’t know that I need to speak to whether or not the terms were violated.

                                                   4
and conclusions of law and filed a notice of past due findings, but none were ever entered. This

appeal followed.


                                            DISCUSSION

                In his first issue, Derek argues that Donna abandoned her claim for violation of the

MSA asserted in her third amended motion when she filed her fourth amended motion between the

two hearings and did not include that claim. At the resumed hearing, Donna’s attorney explained

to the trial court that her fourth amended motion was “a complete new cause of action with new

issues that are before the court.” The trial court noted that the fourth amended motion was “just on

unpaid payments” and continued to address the claim asserted in Donna’s third amended motion,

effectively treating the claims contained in the fourth amended motion as supplemental claims. We

will consider whether the trial court abused its discretion in its treatment of Donna’s fourth amended

motion. See In re Ameri-Fab, LLC, No. 05-17-01458-CV, 2018 Tex. App. LEXIS 1061, at *10

(Tex. App.—Dallas Feb. 7, 2018, no pet.) (applying abuse of discretion standard to trial court’s

treating pleading as plea to jurisdiction rather than plea in abatement).

                Based on the content of the fourth amended motion, rather than on its title, we

conclude that the trial court did not abuse its discretion in treating the fourth amended motion as a

supplemental motion and in completing the hearing on the claim for violation of the MSA contained

in Donna’s third amended motion. See Tex. R. Civ. P. 71 (Misnomer of Pleading); In re J.Z.P.,

484 S.W.3d 924, 925 (Tex. 2016) (per curiam) (stating that when party has mistakenly designated

pleading, if justice requires, court shall treat it as if it had been properly designated and acknowledge

substance of relief sought despite formal styling of pleading and holding that motion not captioned

                                                   5
as one under Rule 306a nonetheless should be treated as one extending post-trial deadlines); Texas

Comm’n on Human Rights v. Morrison, 381 S.W.3d 533, 536–37 (Tex. 2012) (observing that Texas

Supreme Court has long favored common sense application of rules over technical approach that

promotes form over substance); Powell v. Stover, 165 S.W.3d 322, 324 n.1 (Tex. 2005) (orig.

proceeding) (treating pleading styled as appeal as petition for writ of mandamus where relator

challenged denial of mandamus relief and did not appeal from final order); Ameri-Fab, LLC,

2018 Tex. App. LEXIS 1061, at *10 (holding that trial court did not abuse discretion in treating “plea

to the jurisdiction” as plea to jurisdiction rather than as plea in abatement). Accordingly, we overrule

Derek’s first issue.

                In his second issue, Derek argues that there was no evidence to support an award of

damages to Donna for breach of the MSA, especially in light of the trial court’s award of sanctions

against Donna for filing frivolous pleadings, and therefore no basis for an award of attorney’s fees.4

In his third issue, Derek argues that the trial court erred in awarding actual damages and attorney’s

fees to Donna for “harassment” because Texas does not recognize a cause of action for harassment.

We agree that the record does not support the trial court’s award of damages and attorney’s fees

to Donna.

                In her third amended motion for enforcement, Donna alleged one claim—that Derek’s

conduct had violated the MSA. However, the trial court expressly declined to rule on Donna’s claim




       4
          Derek also argues that Donna did not plead the elements of a claim for breach of the MSA
and did not offer the MSA into evidence. The record reflects that Donna presented the MSA to the
trial court in camera, which Derek does not dispute, and we assume without deciding that Donna
sufficiently alleged a claim for breach of the MSA.

                                                   6
that Derek violated the MSA and then denied all relief requested but not granted. Therefore,

regardless of whether the evidence would support a determination that Derek violated the MSA, the

trial court did not make such a determination. Rather, in denying all relief requested but not granted,

the trial court implicitly denied Donna’s claim for breach of the MSA, and Donna does not appeal

the denial of that claim. In addition, the trial court sanctioned Donna for frivolous pleadings, and

Donna does not appeal the sanction. Although the trial court’s order does not state specifically

which claim it determined to be “frivolous,” the only claim Donna actually asserted was the claim

that Derek violated the MSA, and it follows that the trial court’s sanction was based on Donna’s

filing of that claim.5 For these reasons, the record does not reflect that the trial court made any award

of damages to Donna based on her claim for breach of the MSA.

                Nonetheless, despite denying Donna’s claim that Derek violated the MSA and

sanctioning Donna for filing that claim, the trial court “carved out” of her pleadings a claim for

“harassment” and awarded Donna actual damages for “harassment” based on “several instances of

unwanted attention rising to the level of harassment.”6 However, Texas law does not recognize a

separate and independent cause of action for harassment. Castano v. San Felipe Agric., Mfg.

        5
          At the hearing on Donna’s third motion for enforcement, the trial court stated that it did
not believe the comments that Derek had made, as testified to by witnesses, were actionable, but that
when he placed the photograph of Donna’s parents on her windshield without putting it in an
envelope, Derek was “messing with her head”; that the evidence was “just of two people that haven’t
let go and moved on”; and that “other than that, [the trial court did not] have any observation that
any causes or defenses [had] gotten any traction.”
        6
           At the beginning of the resumed hearing, the trial court cited Derek’s “messing with
[Donna’s] head”—conduct it ultimately deemed “harassment”— and stated that it would allow
Donna to put on evidence of her attorney’s fees and was “going to order some attorney’s fees for that
part of the cause of action.” At the conclusion of the hearing and in its order, the trial court awarded
both actual damages and attorney’s fees for “harassment.”

                                                   7
& Irrigation Co., No. 04-01-00822-CV, 2003 Tex. App. LEXIS 1312, at *11 & n.2 (Tex. App.—San

Antonio Feb. 12, 2003, no pet.) (mem. op.) (declining to consider claim for harassment because

Texas law does not recognize it as separate and independent cause of action and trial court therefore

did not err in granting summary judgment in favor of defendant on harassment claim); Pevler

v. Pevler, No. 03-98-00224-CV, 1999 Tex. App. LEXIS 4797, at *19 (Tex. App.—Austin

June 30, 1999, no pet.) (mem. op., not designated for publication) (concluding that there was no

cognizable cause of action for harassment under Texas law that could support trial court’s award of

damages for harassment).

               Moreover, Donna did not purport to assert a claim for harassment in her third

amended motion for enforcement and does not argue in support of such a claim on appeal. While

she did allege that Derek was “harassing” her, she did so in the context of alleging that his actions

violated the MSA. Likewise, although Donna alleged that Derek violated the MSA by “stalking”

her, she did not allege the elements of a claim for stalking under chapter 85 of the Texas Civil

Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code § 85.003 (listing proof required for

stalking claim, including that defendant engaged in harassing behavior, that claimant reasonably

feared for her safety, and that defendant threatened bodily injury). Thus, the record does not support

an award of damages to Donna for “harassment.” See Castano, 2003 Tex. App. LEXIS 1312, at *11

& n.2; Pevler, 1999 Tex. App. LEXIS 4797, at *19. In the absence of a finding that Derek violated

the MSA or a finding based on some other asserted cognizable cause of action, there was no basis

for an award of actual damages. Therefore, we conclude that the trial court erred in awarding actual

damages to Donna on the record before us.



                                                  8
                Consequently, the trial court also erred in awarding attorney’s fees to Donna.

“Without an actual-damages recovery, a party is not entitled to an attorney’s fees recovery.” Gulf

States Utils. Co. v. Low, 79 S.W.3d 561, 567 (Tex. 2002); accord Worldwide Asset Purchasing,

L.L.C. v. Rent-A-Center E., Inc., 290 S.W.3d 554, 570 (Tex. App.—Dallas 2009, no pet.) (stating

that party is not entitled to attorney’s fees incident to recovery unless party independently recovers

actual damages); Haden v. David J. Sacks, P.C., 222 S.W.3d 580, 597 (Tex. App.—Houston [1st

Dist.] 2007), rev’d in part on other grounds, 263 S.W.3d 919 (Tex. 2008) (per curiam) (same).

Because there was no basis for the trial court’s award of actual damages to Donna for

“harassment”—its only stated basis for the award of actual damages—there was no basis for the

award of attorney’s fees. Consequently, the trial court abused its discretion in awarding attorney’s

fees to Donna. See Ridge Oil Co. v. Guinn Invs., Inc., 148 S.W.3d 143, 163 (Tex. 2004) (stating that

we review trial court’s award of attorney’s fees for abuse of discretion). Having concluded that the

trial court erred in awarding actual damages and attorney’s fees to Donna, we sustain Derek’s second

and third issues.7




        7
          Because our disposition of Derek’s first three issues is dispositive, we do not reach Derek’s
fourth issue, in which he argues that the trial court abused its discretion in awarding damages and
attorney’s fees in the absence of injunctive relief, or his fifth issue, in which he argues that the trial
court abused its discretion in permitting Donna to present evidence on attorney’s fees at the resumed
hearing after resting her case at the first hearing. See Tex. R. App. P. 47.1.

                                                    9
                                         CONCLUSION

               We reverse the portion of the trial court’s order awarding actual damages and

attorney’s fees to Donna for “harassment” and render judgment that Donna take nothing on any such

purported claim. We affirm the trial court’s order in all other respects.



                                              __________________________________________
                                              Melissa Goodwin, Justice

Before Chief Justice Rose, Justices Goodwin and Field

Affirmed in Part; Reversed and Rendered in Part

Filed: June 28, 2018




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