                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                    No. 07-16-00418-CV


                RONALD SPRIGGS AND LEVI SPRIGGS, APPELLANTS

                                             V.

                           ALBENITA GONZALES, APPELLEE

                           On Appeal from the 181st District Court
                                   Randall County, Texas
               Trial Court No. 69,573-B, Honorable Edward Lee Self, Presiding

                                      June 28, 2018

                             MEMORANDUM OPINION
                    Before CAMPBELL and PARKER and HATCH, 1 JJ.


       Ronald T. Spriggs and his son Levi L. Spriggs, both Texas attorneys, appeal an

adverse money judgment rendered in favor of appellee Albenita Gonzales. Levi Spriggs

also appeals a pre-trial order of sanctions imposed by the regional presiding judge. We

will affirm the trial court’s judgment and the order of the regional presiding judge.




       1Honorable Les Hatch, Judge, 237th District Court, Lubbock County, sitting by
assignment.
                                         Background


       After the death of appellee Albenita Gonzales’s husband, a property dispute arose

between Mrs. Gonzales and her mother-in-law Dorothy Gonzales.2 Dorothy Gonzales

filed suit against Mrs. Gonzales, who retained Ronald Spriggs to represent her in the

dispute. Ronald Spriggs had represented Mrs. Gonzales also in the probate of her

husband’s estate.


       As Mrs. Gonzales’s attorney, Ronald Spriggs failed to appear for a mediation

session and ultimately did not appear for trial. He later testified that at the time of trial he

was representing another client in a federal court trial. He did not seek a continuance of

the state court trial and in his absence a post-answer default judgment for Dorothy

Gonzales in the amount of $452,000 was taken. A few days after the default judgment

against his client was signed, Ronald Spriggs transferred the building housing his law

office to his son Levi Spriggs. Ronald Spriggs timely filed a motion for new trial but it was

overruled by operation of law. A notice of appeal was filed but the filing fee was not paid,

and for that reason the appeal was dismissed. A motion for rehearing was overruled.


       Mrs. Gonzales obtained new counsel who sought a bill of review. During that

proceeding Dorothy Gonzales and Mrs. Gonzales settled their dispute, reducing Mrs.

Gonzales’s liability to approximately $133,000.


       On Mrs. Gonzales’s behalf, her new counsel then brought suit against Ronald

Spriggs for legal malpractice. After the judge of the trial court recused himself, the case



       2Hereinafter we will refer to appellee Albenita Gonzales as Mrs. Gonzales and
Dorothy Gonzales by that name.

                                               2
was assigned to a retired judge.       Ronald Spriggs responded to Mrs. Gonzales’s

malpractice claim with a counterclaim against Mrs. Gonzales and a third-party cross-claim

against her lawyer, alleging intentional infliction of emotional distress. The counterclaim

and cross-claim were subsequently dismissed on motions under Rule 91a.3


       Mrs. Gonzales later amended her petition to allege Ronald Spriggs fraudulently

transferred his law-office building to Levi Spriggs. Levi Spriggs was joined as a defendant

to the suit. Levi Spriggs attempted to challenge the assigned retired judge but his request

for relief was denied by the regional presiding judge. After an evidentiary hearing, the

regional presiding judge rendered an order sanctioning Levi Spriggs under Rule 18a(h).4


       Trial of Mrs. Gonzales’s suit against Ronald Spriggs and Levi Spriggs was by jury.

After four days the jury found the transfer of the Spriggs law-office building was not

fraudulent. On the malpractice claim, it found for Mrs. Gonzales against Ronald Spriggs

and awarded compensatory damages of $131,250. In a bifurcated hearing, it awarded

exemplary damages against Ronald Spriggs in the amount of $13,000. In a post-trial

hearing on Mrs. Gonzales’s motion for sanctions, and on the trial court’s own motion, the

court imposed monetary sanctions against Ronald Spriggs and Levi Spriggs pursuant to

Rule 135 and the trial court’s inherent power. Ronald Spriggs and Levi Spriggs each filed

a notice of appeal.




       3   TEX. R. CIV. P. 91a.
       4   Tex. R. Civ. P. 18a(h).
       5   TEX. R. CIV. P. 13.

                                             3
                                          Analysis


       For our discussion of the issues presented by Ronald Spriggs and Levi Spriggs,

we will group the issues into three categories: first, Ronald Spriggs’ complaint of charge

error; second, Ronald Spriggs’ challenge of the trial court’s rulings on his objections to

three of Mrs. Gonzales’s experts; and finally, the sanctions levied in pretrial and post-trial

hearings against Levi Spriggs and in a post-trial hearing against Ronald Spriggs.


Charge Error


       Ronald Spriggs broadly argues the trial court erred by failing to submit a jury

charge containing suit-within-a-suit instructions and questions.          A more succinct

statement later in his argument clarifies his complaint: “[B]y refusing to submit the suit-

within-a-suit question, the incorrect jury charge causes direct harm by imposing damage

questions without requisite liability questions.” His argument refers to a jury question

Ronald Spriggs proposed, which read, “would [Mrs. Gonzales] have won the underlying

case?”


       We review claims of charge error for an abuse of discretion. Columbia Rio Grande

Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 856 (Tex. 2009). A trial court abuses its

discretion when it acts without reference to any guiding rules and principles. Concept

Gen. Contracting, Inc. v. Asbestos Maint. Servs., Inc., 346 S.W.3d 172 (Tex. App.—

Amarillo 2011, pet. denied) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d

238, 241-42 (Tex. 1985)). A trial court is required to give “such instructions and definitions

as shall be proper to enable the jury to render a verdict.” TEX. R. CIV. P. 277.




                                              4
       To prove a legal malpractice claim, a former client must show (1) the existence of

a duty of care owed to the client, (2) that the duty was breached, and (3) that the breach

proximately caused damage to the client. Starwood Mgmt., LLC v. Swaim, 530 S.W.3d

673, 678 (Tex. 2017) (per curiam) (citing Stanfield v. Neubaum, 494 S.W.3d 90, 96 (Tex.

2016)). Ronald Spriggs is correct in his assertion that the “suit-within-a-suit” analysis was

applicable to Mrs. Gonzales’s claim that his negligence was responsible for the damages

she suffered from the outcome of Dorothy Gonzales’s suit against her. See Rogers v.

Zanetti, 518 S.W.3d 394, 401 (Tex. 2017) (“When a legal-malpractice case arises from

prior litigation, the plaintiff must prove that the client would have obtained a more

favorable result in the underlying litigation had the attorney conformed to the proper

standard of care”).


       But the court’s charge incorporated the requirement that the jury take into account

the “more favorable result” that hypothetically would have been obtained had Ronald

Spriggs’ representation conformed to the proper standard of care. See Zanetti, 518

S.W.3d at 401. The court’s damage question required the jury to state in dollars and

cents “[t]he difference, if any, between the result obtained for [Mrs. Gonzales] by [Ronald

Spriggs] and the result that would have been obtained with a competent attorney.” See

Elizondo v. Krist, 415 S.W.3d 259, 263 (Tex. 2013) (describing standard for legal-

malpractice damages as “the difference between the result obtained for the client and the

result that would have been obtained with competent counsel”); Comm. on Pattern Jury

Charges, State Bar of Texas, TEXAS PATTERN JURY CHARGES: MALPRACTICE, PREMISES &

PRODUCTS (2016) PJC 61.5 (comment providing in legal malpractice case plaintiff must

effectively “try two suits in one—a ‘suit within a suit’”); 84.4 (sample instruction “C,” for


                                             5
case involving increase in damages assessed against malpractice plaintiff in underlying

litigation, “the increase in damages assessed against Paul Payne in the original suit

brought by Tom Taylor caused by the failure of Andy Attorney to properly defend the

lawsuit”) (italics in original).


         Because its charge to the jury incorporated the suit-within-a-suit principle, the trial

court did not abuse its discretion by refusing Ronald Spriggs’ requested question asking

the jury to determine whether Mrs. Gonzales “would . . . have won the underlying case.”

See TEX. R. CIV. P. 278 (“A judgment shall not be reversed because of the failure to submit

other and various phases or different shades of the same question”); Dallas Area Rapid

Transit v. Agent Systems, Inc., No. 02-12-00517-CV, 2014 Tex. App. LEXIS 12797, at *9-

10 (Tex. App.—Fort Worth Nov. 26, 2015, pet. denied) (mem. op.) (“Because the

submitted question does not differ in substance from appellants’ requested instruction,

but merely in wording, the trial court did not err”). Ronald Spriggs’ charge-error issue is

overruled.


Challenges of Mrs. Gonzales’s Expert Witnesses


         Ronald Spriggs argues the trial court abused its discretion by overruling objections

to the testimony of three of Mrs. Gonzales’s expert witnesses, licensed real estate

salesperson Gabe Irving, law professor Larry Spain, and attorney Edward Norfleet.


         We review a trial court’s decision to admit or exclude expert evidence under the

abuse of discretion standard. Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629 (Tex.

2002).     However, even if a trial court abuses its discretion by improperly admitting

evidence, reversal is warranted only if the error probably caused the rendition of an


                                                6
improper judgment. Id.; TEX. R. APP. P. 44.1(a) (error is reversible if it probably caused

the rendition of an improper judgment).


       An expert’s testimony is admissible if the expert is qualified to testify about

“scientific, technical, or other specialized knowledge” and the testimony is relevant and

based on a reliable foundation. See TEX. R. EVID. 702; TXI Transp. Co. v. Hughes, 306

S.W.3d 230, 234 (Tex. 2010); Zwahr, 88 S.W.3d at 628; Gammill v. Jack Williams

Chevrolet, Inc., 972 S.W.2d 713, 720 (Tex. 1998) (citing E.I. du Pont de Nemours & Co.

v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995)).


       “The reliability requirement focuses on the principles, research, and methodology

underlying an expert’s conclusions.” Kerr-McGee Corp. v. Helton, 133 S.W.3d 245, 254

(Tex. 2004); Williams v. Crawford, No. 03-16-00696-CV, 2018 Tex. App. LEXIS 1641, at

*8 (Tex. App.—Austin Mar. 2, 2018 n. pet. h.) (mem. op.). The reliability analysis does

not require the court to determine the correctness of an expert’s conclusions but “whether

the analysis used to reach those conclusions is reliable.” Zwahr, 88 S.W.3d at 629. An

expert’s testimony is unreliable if based on unreliable data or if the expert applies a flawed

methodology to draw conclusions from the underlying data. E.I. DuPont de Nemours &

Co. v. Hood, No. 05-16-00609-CV, 2018 Tex. App. LEXIS 3228, at *8 (Tex. App.—Dallas

May 8, 2018, n. pet. h.) (citing Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 714 (Tex.

1997)). In Robinson the court identified six non-exclusive factors for consideration in

deciding the reliability of proffered expert testimony. 923 S.W.2d at 557. But these factors

are not always useful. Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex.

2006) (automobile accident case). When the subject matter requires an expert to rely on

experience, knowledge, and training rather than a certain methodology to reach a

                                              7
conclusion, a court makes the reliability assessment by determining whether there is “too

great an analytical gap between the data and the opinion proffered.” Mack Trucks, Inc.

v. Tamez, 206 S.W.3d 572, 578 (Tex. 2006) (citing Gammill, 972 S.W.2d at 726);

Crawford, 2018 Tex. App. LEXIS 1641, at *9. Regardless, “there must be some basis for

the opinion offered to show its reliability.” Gammill, 972 S.W.2d at 726. “‘An expert’s

bare opinion will not suffice’ and is unreliable if ‘based solely upon his subjective

interpretation of the facts.’” Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 39 (Tex. 2007)

(quoting Volkswagen of America, Inc. v. Ramirez, 159 S.W.3d 897, 906 (Tex. 2004)). “[A]

claim will not stand or fall on the mere ipse dixit of a credentialed witness.” Burrow v.

Arce, 997 S.W.2d 229, 235 (Tex. 1999). “Expert testimony fails if there is simply too great

an analytical gap between the data and the opinion offered.” Elizondo, 415 S.W.3d at

264 (internal quotation marks and citation omitted) (legal malpractice case).


       To determine whether an expert is sufficiently qualified, the trial court must “ensure

that those who purport to be experts truly have expertise concerning the actual subject

about which they are offering an opinion.” Gammill, 972 S.W.2d at 719 (quoting Broders

v. Heise, 924 S.W.2d 148, 152 (Tex. 1996)).


       Gabe Irving


       An issue in the case was the value of a caliche pit owned by a corporation of which

Dorothy Gonzales and Mrs. Gonzales were the shareholders. Mrs. Gonzales presented

Gabe Irving as an expert on real property valuation. The evidence showed Irving holds

a marketing degree and is a licensed real estate salesperson with some seventeen years’

experience in real estate transactions. It appears he based his qualification to render a



                                             8
valuation opinion on his experience rendering such opinions in the course of his work.

Levi Spriggs filed a motion to exclude Irving’s testimony on the grounds he was not

sufficiently qualified to render a valuation opinion; both Levi Spriggs and Ronald Spriggs

also argued to the trial court that the methodology Irving employed to reach his valuation

opinion did not lead to a reliable opinion. The centerpiece of the defendants’ methodology

challenge seems to be that a sale of undeveloped residential property Irving considered

as comparable to the caliche pit property was in fact not comparable. After listening to

the arguments of counsel, the trial court overruled the defendants’ objection.


      At trial, Irving then testified to his methodology and expressed the opinion that the

property was valued at $465,000. Our review of the record confirms, however, that Mrs.

Gonzales testified without objection to her opinion the value of the property was near

$465,000.   Her valuation testimony is not challenged on appeal.         Because Irving’s

valuation opinion was cumulative of Mrs. Gonzales’s testimony, any error in admitting

Irving’s valuation opinion was harmless. TEX. R. APP. P. 44.1; see State v. Dawmar

Partners, Ltd., 267 S.W.3d 875, 881 (Tex. 2008) (per curiam); In re D.D., No. 02-17-

00368-CV, 2018 Tex. App. LEXIS 2440, at *36 (Tex. App.—Fort Worth Apr. 5, 2018, n.

pet. h.) (per curiam, mem. op.).


      Edward Norfleet


      Mrs. Gonzales elicited opinions in the trial testimony of Amarillo attorney Edward

Norfleet that in his representation of Mrs. Gonzales, Ronald Spriggs was negligent and

grossly negligent and his negligence proximately caused the damages Mrs. Gonzales




                                            9
claimed. On appeal, Ronald Spriggs argues Norfleet was not qualified to render the

opinions given.


       In the trial court, Ronald Spriggs and Levi Spriggs each filed motions to exclude

Norfleet as an expert. In conclusory fashion Ronald Spriggs argued in his motion Norfleet

was not qualified to render expert opinions on the grounds he was tendered, and his

opinions were not reliable. At the heart of Ronald Spriggs’ complaint in the trial court and

on appeal was Norfleet’s refusal to answer certain questions during his deposition. The

questions largely concerned bare legal concepts untethered from the facts of the case.

We see no abuse of discretion in the trial court’s implicit ruling that Norfleet’s refusal to

answer the questions did not reflect negatively on his qualification to render the legal

opinions to which he testified. Accordingly, it was not an abuse of discretion to overrule

the Spriggs’ challenge of Norfleet.


       Larry Spain


       Larry Spain is a professor of professional responsibility and family law at Texas

Tech University School of Law. He also teaches a civil practice clinic and a mediation

clinic. Mrs. Gonzales presented Spain to testify as an expert to the negligence and gross

negligence of Ronald Spriggs.


       In the trial court, the core of Ronald Spriggs’ complaint regarding Spain was his

qualification to render expert opinions. Particularly, Ronald Spriggs emphasized that

Spain has not practiced law for a living in Texas, has never tried a case in federal court,

and has not tried a case to a jury in Texas. Ronald Spriggs further asserted Spain was

uninformed of the facts on which he based his opinions of Ronald Spriggs’ professional


                                             10
conduct. Mrs. Gonzales countered, pointing out Spain has been licensed to practice law

for over forty years, in Texas since 2001, has published “numerous scholarly articles and

spoken at several seminars,” and has obtained academic and practical experience

through teaching, researching, writing, and supervising law students in clinical programs.


       Ronald Spriggs’ brief on appeal does not present a persuasive contention,

supported by controlling authority, that Spain’s academic and professional background in

the instruction and supervision of law students, and his many years of experience as a

licensed attorney, nevertheless do not qualify him to render the opinions for which he was

offered.   After review of the record, including Spain’s testimony and opinions, and

considering the facts and ultimate issues in the case, we cannot say the trial court abused

its discretion by overruling Ronald Spriggs’ motions to strike Spain as an expert witness.6

If we are mistaken, moreover, any error was harmless because Edward Norfleet also

testified on the issues of Ronald Spriggs’ negligence and gross negligence. See In re

D.D., 2018 Tex. App. LEXIS 2440, at *36.


       We overrule Ronald Spriggs’ challenge to the admissibility of the testimony of Mrs.

Gonzales’s three trial expert witnesses.




       6  As a sub-issue, Ronald Spriggs argues Spain should have been excluded from
testifying at trial, and Mrs. Gonzales’s attorney sanctioned, because the attorney copied
Spain’s deposition without purchasing a copy from the court reporter and then attached
the entire deposition to his response to Ronald Spriggs’ motion to exclude Spain. At the
hearing on Ronald Spriggs’ motion, the trial court stated that it had not read and would
not read Spain’s deposition. No further sanctions were imposed. We find no abuse of
discretion in the trial court’s action.

                                            11
Pretrial and Post-Trial Sanctions


       Pretrial Sanctions of Levi Spriggs


       Levi Spriggs argues the Honorable Kelly Moore, presiding judge of the Ninth

Administrative Judicial Region, abused his discretion by imposing a monetary sanction

against him in conjunction with Levi Spriggs’ attempt to have the Honorable Edward Self,

retired district judge, removed from the case.      The argument mixes procedural and

substantive complaints. We review a trial court’s ruling on a motion for sanctions for

abuse of discretion. See Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004).


       As noted, in August 2016, Mrs. Gonzales amended her lawsuit to add a claim

against Ronald Spriggs and Levi Spriggs for the allegedly fraudulent transfer of Ronald

Spriggs’ law-office building to Levi Spriggs. Levi Spriggs was served with the amended

petition on August 18, 2016.


       On September 9, 2016, he filed an unsworn document entitled “Amended

Objection to Visiting Judge.”7 The objection begins with the statement that Levi Spriggs

“objects to the assignment of this case to a visiting judge.” It next states, “Alternatively

and without wa[i]ving the for[e]going, Visiting Judge Self cannot serve on this case

because of bias.” The objection next states that Judge Self had in the present litigation

“demonstrated impermissible bias,” and that he “has a history of impermissible bias.”

There follows a narrative of some two pages, stating the bases for Levi Spriggs’ claims

that Judge Self is biased and not impartial. The prayer asks that “[Judge Self], be



       7Notwithstanding the document’s title, the record gives no indication that Levi
Spriggs previously had filed such an objection.

                                            12
removed from this case because his continuing bias has caused him to issue advisory

opinions, advocate on behalf [of] opposing counsel, and ignore clearly established

law . . . .” The objection cites no authority.


       Judge Self referred the objection to Judge Moore. Levi Spriggs also forwarded the

objection directly to Judge Moore. On the day the objection was filed, Mrs. Gonzales filed

a response which, among other things, requested sanctions against Levi Spriggs.


       On September 11, 2016, Judge Moore issued a written order denying the

“amended objection to visiting judge.” The order states that the time for objection to the

assignment of a visiting judge under the Texas Government Code “has passed, so, based

upon the allegations in the pleading, and the fact that [Levi Spriggs] forwarded it directly

to the Presiding Judge of the Ninth Administrative Judicial Region, it will be treated a[s] a

recusal motion.”


       Judge Moore’s order notes that the objection was not verified as required by Civil

Rule 18a, and set forth “no factual allegations from which it could be determined that the

judge should recuse.” It cited Rule 18a(a)(2), (3) and (4).8


       On September 22, 2016, Judge Moore conducted an evidentiary hearing on Mrs.

Gonzales’s motion for sanctions. On October 13, Judge Moore issued an order finding

the objection “was clearly brought for unnecessary delay and without sufficient cause,”

and the pleading “was groundless and filed in bad faith and for the purpose of




       8   See TEX. R. CIV. P. 18a (recusal and disqualification of judges).

                                                 13
harassment.”9 As a sanction Judge Moore awarded Mrs. Gonzales attorney’s fees of

$1,900.


       On appeal, Levi Spriggs first argues his filing constituted only an objection to the

assignment of a visiting judge under Texas Government Code section 74.053. 10 He

contends Judge Moore abused his discretion by “recasting” the objection as a motion to

recuse under Rule 18a. We find Levi Spriggs’ argument meritless, and bordering on the

frivolous.11 On its face, his filing raised an objection to the assignment of the visiting

judge, then “[a]lternatively,” and without waiver of his objection, stated the visiting judge

could not serve because of bias, and followed that alternative contention with an

extensive discussion of the judge’s asserted bias and partiality. 12 If his filing, which Levi

Spriggs filed with the trial court and forwarded directly to the regional presiding judge,

was not intended “alternatively” as a motion to recuse, it is difficult to imagine what

legitimate purpose its assertion of bias and partiality was intended to serve. 13




       9 See TEX. R. CIV. P. 18a(h)(1), (2) (stating grounds for awarding sanction of
attorney’s fees and expenses to non-moving parties in recusal and disqualification
proceedings).
       10   TEX. GOV’T CODE ANN. § 74.053 (West 2013)
       11It is the substance and not the title that characterizes a motion. TEX. R. CIV. P.
71; In Re Estate of Ayala, 19 S.W.3d 477, 479 (Tex. App.—Corpus Christi 2000, pet.
denied).
       12See TEX. R. CIV. P. 18b(b)(1), (2) (judge must recuse in any proceeding in which
judge’s impartiality might reasonably be questioned, or judge has personal bias or
prejudice concerning the subject matter or a party).
       13 See TEX. R. CIV. P. 18a(e), (f), (g) (role of regional presiding judge in recusal and
disqualification motions).

                                              14
      In this Court, Levi Spriggs further argues Judge Self did not treat his objection as

a motion to recuse because he continued to issue rulings in the case before Judge Moore

made a final ruling. See TEX. R. CIV. P. 18a(f)(2) (restricting actions respondent judge

may take until motion to recuse has been decided). This argument assumes the recusal

motion was not finally decided until Judge Moore issued his order awarding sanctions on

October 13, 2016. But Judge Moore denied the “amended objection,” with regard to both

of its alternative grounds, by his written order of September 11. Judge Self’s actions in

the case were not restricted under Rule 18a(f)(2) after that date.


      In sum, we do not agree that the record reflects an abuse of discretion in Judge

Moore’s view that Levi Spriggs’ filing was in part a motion to recuse Judge Self. We turn

to Levi Spriggs’ contention that the award of sanctions was itself an abuse of discretion.


      After notice and hearing the judge who decides a recusal motion may assess a

sanction of reasonable attorney’s fees against a party or attorney who filed the motion on

a finding that the motion was clearly brought for unnecessary delay and without sufficient

cause. TEX. R. CIV. P. 18a(h)(2). Mrs. Gonzales’s request for sanctions included the

assertion that Levi Spriggs’ amended objection was clearly brought for unnecessary delay

and without sufficient cause. As noted, in his order of October 13, Judge Moore made

such findings against Levi Spriggs.


      Unnecessary delay


      In her August 17, 2016, amended petition, Mrs. Gonzales sought a temporary

restraining order and temporary injunction preventing Ronald Spriggs and Levi Spriggs

from further transferring Ronald Spriggs’ office building. Judge Self issued a temporary


                                            15
restraining order on August 17, and extended it once, apparently because Ronald Spriggs

was in trial on another matter. On September 6, Levi Spriggs filed a notice of appeal,

attempting to appeal the temporary restraining order.14 A temporary injunction hearing

was scheduled for September 12. This was the Monday immediately following the Friday

Levi Spriggs filed his “amended objection.” As factfinder at the sanctions hearing,15 Judge

Moore was entitled to believe the objection was clearly brought to delay, unnecessarily,

the September 12 hearing, which would have allowed the once-extended temporary

restraining order to expire.16 See In re H.M.S., 349 S.W.3d 250, 258 (Tex. App.—Dallas

2011, pet. denied) (holding no abuse of discretion in finding party brought motion to

recuse solely for purpose of delay).


       Sufficient cause

       As the party seeking Judge Self’s recusal, it was Levi Spriggs’ burden to

demonstrate Judge Self was so biased or partial that he could not obtain a fair trial. In re

H.M.S., 349 S.W.3d at 253. A judge’s opinions based on facts introduced or events

occurring during a current proceeding, or a prior proceeding, will not support a charge of

bias or partiality unless they display a deep-seated favoritism or antagonism that makes

fair judgment impossible. Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147,




       14
        A temporary restraining order is generally not appealable. See, e.g., In re Tex.
Nat. Res. Conservation Comm’n, 85 S.W.3d 201, 205 (Tex. 2002) (orig. proceeding).
       15  See Daniel v. Kelley Oil Corp., 981 S.W.2d 230, 232 (Tex. App.—Houston [1st
Dist.] 1998, pet. denied) (“At the sanctions hearing, the court is entitled to judge the
credibility of the witnesses and the weight of their testimony”).
       16
        See TEX. R. CIV. P. 680 (unless unopposed, a temporary restraining order may
be extended once for a period not to exceed fourteen days).

                                            16
127 L. Ed.2d 474 (1994). Thus the remarks of a judge during trial “that are critical or

disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not

support a bias or partiality challenge.” Id. Even a stern or short-tempered judge’s ordinary

courtroom administration will not justify an allegation of bias or partiality. 510 U.S. at 556.

The fact that a litigant does not obtain the types of rulings he expected is not by itself

evidence of bias or partiality. 510 U.S. at 555 (“judicial rulings alone almost never

constitute a valid basis for a bias or partiality motion”).


       Levi Spriggs’ unsworn objection accused Judge Self of bias and partiality. At the

evidentiary hearing on Mrs. Gonzales’s sanctions motion, Levi Spriggs presented the

testimony of Ronald Spriggs, who testified to his opinion that Judge Self demonstrated

bias by his refusal to recognize the suit-within-a-suit precept in the malpractice case and

by his favorable treatment of Mrs. Gonzales’s counsel in court. Levi Spriggs also testified

at the hearing that Judge Self did not correctly handle the issuance of the temporary

restraining order he granted Mrs. Gonzales because he failed to ensure Levi Spriggs and

Ronald Spriggs were made aware of the proceeding.


       Ronald Spriggs further testified that his experience representing one of the

defendants convicted of drug offenses in “the Tulia cases” showed him Judge Self

“couldn’t be fair and impartial” in that drug case. He described some of Judge Self’s

actions during the course of the drug cases, and also said the fact almost all the

defendants, later pardoned, were black indicated a racial bias in the handling of the cases.


       None of the evidence Levi Spriggs offered at the sanctions hearing directly

demonstrated bias or partiality on the part of Judge Self. And, as justifying an inference



                                               17
that Judge Self was biased or partial, Judge Moore was within his discretion to see the

evidence offered as permitting no more than surmise and speculation. See Daniel, 981

S.W.2d at 232.


       Finally, Levi Spriggs cites the United States Supreme Court’s opinion in Caperton

v. A.T. Massey Coal Co., 556 U.S. 868, 129 S. Ct. 2252, 173 L. Ed. 2d 1208 (2009), and

asserts that Judge Self’s “history of bias” raises due process concerns like those

addressed in Caperton. The Supreme Court noted that in most instances matters relating

to judicial qualification do not rise to a constitutional level. 556 U.S. at 876. It recognized,

however, there are instances which objectively require recusal; instances in which

“experience teaches that the probability of actual bias on the part of the judge or

decisionmaker is too high to be constitutionally tolerable.” Id. at 877. Because due

process is implemented by objective standards proof of actual bias is not necessary. Id.

at 883. This means that recusal may be required whether actual bias exists or can be

proved. Id. at 886.


       In Caperton the Court found recusal of a member of the Supreme Court of Appeals

of West Virginia was required in its review of a judgment against a corporation. The

member had benefitted from exceptionally large campaign contributions by the president

of the corporation. The Court held, “We conclude that there is a serious risk of actual

bias—based on objective and reasonable perceptions—when a person with a personal

stake in a particular case had a significant and disproportionate influence in placing the

judge on the case by raising funds or directing the judge’s election campaign when the

case was pending or imminent.” Id. at 884.



                                              18
       Levi Spriggs does not point to any objective circumstance in Mrs. Gonzales’s case

against the Spriggs defendants that would lead to a reasonable perception of a serious

risk of actual bias on the part of Judge Self. In support of his contention that Judge Self’s

role in the case raises due process concerns, Levi Spriggs refers again to the “Tulia”

convictions, and asserts that Judge Self’s “bias was recognized publicly.” As proof, Levi

Spriggs cites an article in a magazine that was critical of several Texas judges. The article

contains a paragraph referring to Judge Self and his actions while presiding over “the

majority of the trials in the infamous Tulia drug sting of 1999.” The paragraph refers to

“Self’s questionable rulings” benefitting the prosecution. The paragraph, however, does

not mention bias nor does it mention the race of the drug case defendants. As evidence

that Judge Self harbors publicly recognized bias, racial or otherwise, the article has no

evidentiary value. And Levi Spriggs refers again to Ronald Spriggs’ conclusory opinion,

expressed in his testimony before Judge Moore, that Judge Self exhibited bias in his

rulings in the drug case in which Ronald Spriggs participated.


       Nothing in the record of the sanctions hearing before Judge Moore, or elsewhere

in the record before us, regarding Judge Self’s conduct in this or in any prior case gives

rise to the extreme potential for bias the Court found in Caperton. See id. at 887 (“[t]he

facts before us are extreme by any measure”). As a demonstration of a risk of denial of

due process if Judge Self continued to preside over Mrs. Gonzales’s case against the

defendants, the record is wholly inadequate.17



       17 Texas law provided Ronald Spriggs a ready and simple remedy if he considered
Judge Self to be biased against him. Texas Government Code section 74.053 permits a
party to a civil case to object to the assignment of a visiting judge. See TEX. GOV’T CODE
ANN. § 74.053(b) (“If a party to a civil case files a timely objection to the assignment, the

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       We find the record sufficiently demonstrates Levi Spriggs’ amended objection was

brought without sufficient cause. TEX. R. CIV. P. 18a(h)(2). Levi Spriggs has not shown

that Judge Moore abused his discretion by ordering a monetary sanction for filing the

objection. Levi Spriggs’ challenge of that ruling is overruled.

       Post-trial Sanctions Hearing

       During the evening of the final day of trial, after the jury was discharged, the trial

court announced to the attorneys that it would convene a hearing at 1:30 p.m. the

following day to consider Mrs. Gonzales’s two pending motions for sanctions against

Ronald Spriggs and Levi Spriggs. By the first motion, brought under Rule 13, Mrs.

Gonzales sought an order of sanctions concerning a no-evidence motion for summary

judgment signed by Levi Spriggs. The second motion sought to sanction Ronald Spriggs

and Levi Spriggs under Rule 13 for filing an expert report on an irrelevant issue. Ronald

Spriggs and Levi Spriggs both verbally requested additional time. The court denied their

requests.

       After hearing Mrs. Gonzales’s two motions the next day, the court, without prior

notice, sua sponte rendered sanctions under its inherent power or Rule 13 for some

sixteen acts of conduct by Ronald Spriggs and Levi Spriggs during the course of the case.

The court rendered a money award in favor of Mrs. Gonzales for $3,500 against Ronald

Spriggs and an equal amount against Levi Spriggs. The award did not allocate the



judge shall not hear the case”). And the statute permitted Levi Spriggs to request an
extension of time to file an objection. See TEX. GOV’T CODE ANN. § 74.053(c) (providing
in part, “The presiding judge may extend the time to file an objection under this section
on written motion by a party who demonstrates good cause”). Ronald Spriggs did not file
an objection to Judge Self’s assignment, and Levi Spriggs did not request an extension
of time to file his own objection.

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sanctions between those sought by Mrs. Gonzales’s motions and those rendered sua

sponte by the court. Immediately following the court’s verbal rendition of sanctions, Levi

Spriggs sought to raise “one more thing” with the court, but the court adjourned the

hearing. An order was signed the following week.18

       We begin with the sanctions imposed by the court on its own motion. The record

does not indicate the court notified Ronald Spriggs and Levi Spriggs of its intention to

impose sanctions sua sponte under its inherent power or Rule 13. And as noted the court

denied them an opportunity to object after rendering its findings. Mrs. Gonzales contends

on appeal that the issues Ronald Spriggs and Levi Spriggs raise attacking the court’s

sanctions have not been preserved for appellate review, and we must agree.

       Our state’s procedural rules requiring preservation of error “reflect[] important

prudential considerations recognizing that the judicial process benefits greatly when trial

courts have the opportunity to first consider and rule on error.” Burbage v. Burbage, 447

S.W.3d 249, 258 (Tex. 2014) (citing In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003)); see

TEX. R. APP. P. 33.1(a) (error preservation requires that a party timely present its objection

to the trial court with sufficient specificity). The Spriggs may have had no opportunity to

object and obtain a ruling at the sanctions hearing, but preservation of the errors they

now complain of could have been accomplished by a motion for rehearing or motion for

new trial specifying their complaints. See Appleton v. Appleton, 76 S.W.3d 78, 84-85




       18 The court’s sanctions order stated its finding that “[t]he Court, having taken
judicial notice of the entire clerk’s file, all the motions and pleadings that have been filed
during the case and the trial, and all the testimony that was given during the trial of this
case, finds that there has been a pattern of filing frivolous motions and pleadings by the
Defendants, filed without good cause, and without good faith, and when the Defendants
knew that they were not supported by any kind of evidence.”

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(Tex. App.—Houston [1st Dist.] 2002, no pet.) (finding complaint in Rule 13 sanctions

proceeding that trial court failed to make particularized good cause findings justifying the

sanctions was waived when sanctioned party voiced no objection); Thomas v. Thomas,

917 S.W.2d 425, 433 (Tex. App—Waco 1996, no writ) (finding in case where parties

sanctioned under Rule 13 had no opportunity to object or obtain a ruling prior to entry of

the sanctions order, their motion for new trial which specifically stated their complaint

about the sanctions order preserved error). The record contains no such motion by either

appellant. We agree with Mrs. Gonzales that Ronald Spriggs and Levi Spriggs have

presented nothing for our review because they did not first raise their complaints in the

trial court.   We find, therefore, the Spriggs’ complaints pertaining to the sanctions

proceeding undertaken sua sponte, and the resulting order, are waived. See Wilner v.

Quijano, No. 01-11-00322-CV, 2012 Tex. App. LEXIS 9064, at *7-10 (Tex. App.—

Houston [1st Dist.] Oct. 25, 2012, no pet.) (mem. op.) (finding complaint that trial court

imposed sua sponte sanctions against attorney without notice and hearing not preserved

as attorney did not complain to the trial court or ask for reconsideration).

       On the evening before the day of the sanctions hearing, when the court announced

its intention to hear Mrs. Gonzales’s two motions for sanctions the following day, Ronald

Spriggs and Levi Spriggs each verbally requested additional time. The trial court verbally

denied their requests. Neither of the Spriggs filed a written motion for continuance. This

claim of error also was not preserved. See Dempsey v. Dempsey, 227 S.W.3d 771, 776

n.1 (Tex. App.—El Paso 2005, no pet.) (finding verbal motion for continuance did not

preserve error). Cf. Bravenec v. Flores, No. 04-11-00444-CV, 2013 Tex. App. LEXIS




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2863, at *5 (Tex. App.—San Antonio Mar. 20, 2013, no pet.) (mem. op.) (finding no abuse

of discretion where appellant made only a verbal motion to continue a sanctions hearing).

       Because the trial court disposed of the three sanctions motions in a unitary

proceeding and did not allocate the monetary awards among the motions, and because

objection to the court’s sua sponte proceeding was waived, even assuming it was error

to sustain either or both of Mrs. Gonzales’s motions, any error was harmless. Without

expressing any opinion on the merits of the three sanctions motions heard post-trial, we

overrule the Spriggs’ corresponding issues.

                                        Conclusion


       Having overruled the issues raised on appeal for the reasons discussed, we affirm

the order of Judge Moore sanctioning Levi Spriggs and the final judgment of the trial court.




                                                        James T. Campbell
                                                           Justice




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