The Perils of Litigating Pro Se (without a lawyer)

Time and again litigants come to grief trying to represent themselves without competent licensed attorney. They have the right to do so under the rules, but self-represented parties are rarely successful, for numerous reasons. In one recent case, a pro se grandparent brought a suit regarding a grandchild that he not only lost, but for which he was punished by having to pay the other party's attorney's fees as a sanction. A warning worth heeding.

FROM THE APPELLATE OPINION:

It appears that Watts' real complaint is that the trial court erred by imposing the attorney's fees as a sanction pursuant to Tex. R. Civ. P. 13 for his frivolous filing of a lawsuit in which he clearly had no standing, in a county where the child had not lived for four years, seeking a form of relief to which he was not entitled.

The trial court heard the parties on this matter. Rule 13 allows imposition of the penalties set out in Rule 215.2(b) on concluding that a pleading or lawsuit is groundless and brought in bad faith, or groundless and brought for the purpose of harassment, or as an experiment. Tex. R. Civ. P. 13. "Groundless" is defined by the rule as having "no basis in law or fact and not warranted by good faith argument for the extension, modification, or reversal of existing law."

There is no conceivable way in which the genetic testing statute could be utilized by this party for this purpose. The trial court found in its judgment that the action was violative of Rule 13 and that the lawsuit was frivolous because Watts had no standing, and then ordered Watts to pay the appellees' attorney's fees.

Sanctions for filing frivolous pleadings are available under Chapter 10 of the Texas Civil Practice and Remedies Code or under Rule 13 of the Texas Rules of Civil Procedure. Save Our Springs Alliance, Inc. v. Lazy Nine Mun. Util. Dist. ex rel. Board of Directors, 198 S.W.3d 300, 319 (Tex. App.--Texarkana 2006, pet. filed). We review a trial court's Rule 13 sanction for abuse of discretion. Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581 (Tex. 2006). Although a trial court's failure to specify the good cause for sanctions in a sanction order may be an abuse of discretion, Gaspard v. Beadle, 36 S.W.3d 229, 239 (Tex. App.--Houston
[1st Dist.] 2001, pet. denied), in this case, the reason was apparent from the order.

We also recognize that sanctions should not be used as "a weapon . . . to punish those with whose intellect or philosophic viewpoint the trial court finds fault." Save Our Springs Alliance, 198 S.W.3d at 319; Tarrant County v. Chancey, 942 S.W.2d 151, 154-55 (Tex. App.--Fort Worth 1997, no writ).

A trial court abuses its discretion if it acts "without reference to any guiding rules and principles," such that its ruling is arbitrary or unreasonable. Cire v. Cummings, 134 S.W.3d 835, 839 (Tex. 2004). When determining if the trial court abused its discretion, we must ensure that the sanctions were appropriate or just. Id. The Texas Supreme Court has articulated a two-part inquiry that we should conduct in making this determination. Id. First, we must ensure the punishment was imposed on the true offender and tailored to remedy any prejudice caused. Id. Second, we must make certain that less severe sanctions would not have been sufficient. Id.

The punishment was imposed on Watts, who intentionally pursued a patently unavailable cause of action for reasons not supportable under the statute. Thus, the true offender was punished. See Onstad v. Wright, 54 S.W.3d 799, 809 (Tex. App.--Texarkana 2001, pet. denied). The prejudice caused was that of having to incur attorney's fees to defend against the frivolous lawsuit. The sanction was tailored to remedy the harm. Watts argues that less severe sanctions would have been sufficient. He does not suggest what those might be, and we find it appropriate to require an individual who files a frivolous lawsuit against a party to pay that party's attorney's fees. The sanction was not as severe as it could have been, and we find no abuse of discretion in imposing this sanction in this particular situation. The contention of error is
overruled.

For the reasons stated above, we find that the trial court correctly dismissed the lawsuit and that the attorney's fees imposed as sanctions are supportable.

In re L.K.W.G., No. 06-06-00073-CV (Tex.App.- Texarkana, Feb. 2, 2007) (pro se grandparent suit for visitation and motion for genetic testing found baseless and frivolous; sanctions imposed)

STANDING: Grandparent must have standing to bring suit for access to grandchild under Texas Family Code

Standing refers to the legal right to bring an action in court. In the case of grandparents, the requirements for standing to file a suit affecting the parent-child relationship, or to intervene in a pending suit involving child custody or visitation, are defined by statute, specifically the Texas Family Court.

Texas courts of appeals have addressed standing in grandparents rights cases as follows:

Standing is implicit in the concept of subject matter jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). A party's lack of standing deprives the trial court of subject matter jurisdiction, and renders any trial court action void. Taub v. Aquila Sw. Pipeline Corp., 93 S.W.3d 451, 455 (Tex. App.- Houston [14th Dist.] 2002, no pet.). Whether a party has standing is a threshold issue, and one which we review de novo. See In re SSJ-J, 153 S.W.3d 132, 134 (Tex. App.- San Antonio 2004, no pet.); Hobbs v. Van Stavern, 249 S.W.3d 1, 3 (Tex. App. Houston [1st Dist.] 2006, pet. denied). When standing has been conferred by statute, the statute itself should serve as the proper framework for a standing analysis. In re Sullivan, 157 S.W.3d 911, 915 (Tex. App.- Houston [14th Dist.] 2005, orig. proceeding [mand. denied]).
* * *
The Family Code provides that a biological or adoptive grandparent may request access to a grandchild. See Tex. Fam. Code Ann. ' 153.432. As the child's biological grandmother, Lisa meets this standing requirement. The Smiths contend, however, that section 153.433 imposes additional conditions for standing. The plain statutory language does not support this interpretation. Sections 153.432 and 153.434[4] expressly speak in terms of when a grandparent "may request" or "may not request" access or possession, and therefore address the right to file an access suit. See Tex. Fam. Code Ann. '' 153.432, 153.434. By contrast, section 153.433 outlines when "[t]he court shall order" possession or access. See id. ' 153.433.
Not surprisingly, Texas courts consistently have held that a grandparent's standing to request access is conferred by section 153.432, not 153.433: "Section 153.432 of the family code does give grandparents standing to petition the court for access to or possession of a child. Section 153.433 identifies the conditions under which such possession or access will be granted." In re H.M.J.H., 209 S.W.3d 320, 322 (Tex. App.- Dallas 2006, no pet).[5] Although a successful access suit might require the grandparent to satisfy section 153.433, whether the grandparent ultimately will succeed is a different question than whether the grandparent has the right simply to bring suit. See generally In re C.M.C., 192 S.W.3d 866, 869-70 (Tex. App.- Texarkana 2006, no pet.) ("[A] decision concerning whether a party has standing is not a decision deciding the merits of a case."); In re SSJ-J, 153 S.W.3d at 138 ("[S]tanding does not mean the right to win; it is only a right to be heard.").
In re Kevin J. Smith, No. 14-08-00164-CV , ___ S.W.3d ___ (Tex.App.- Houston [14th Dist.] July 3, 2008)(Frost) (SAPCR, grandparent access mandamus denied, standing requirement for access satisfied)


Standing is a threshold issue and must be decided before the merits of the case. In re K.I.A., 205 S.W.3d 14 (Tex. App.--Eastland 2006, no pet.); In re Pringle, 862 S.W.2d 722, 724 (Tex. App.--Tyler 1993, no pet.).

When standing has been statutorily conferred, the statute itself serves as the proper framework for a standing analysis. Daimler Chrysler Corp. v. Inman, 121 S.W.3d 862, 869 (Tex. App.--Corpus Christi 2003, no pet.); Everett v. TK-Taito, L.L.C., 178 S.W.3d 844, 851 (Tex. App.--Fort Worth 2005, no pet.); see Williams v. Lara, 52 S.W.3d 171, 178 (Tex. 2001). Standing to pursue the action, in this context, is provided by statute. Watts is not a party given standing to pursue the action. Thus, the trial court correctly dismissed his suit on that basis. In re L.K.W.G., No. 06-06-00073-CV (Tex.App.- Texarkana, Feb. 2, 2007) (pro se grandparent suit motion for visitation had no standing, basis to bring lawsuit and file motions; frivolous suit finding, sanctions imposed)


[S]ection 102.004(b) [of the Texas Family Code] explicitly sets forth who may intervene in a suit seeking to establish managing conservatorship. Tex. Fam. Code Ann. § 102.004(b) (Vernon Supp. 2007). Gary and Cindy B. did not meet that criteria. In a similar context involving a step-grandparent, the Texas Supreme Court rejected a standing argument based on an asserted justiciable interest, holding, "We cannot conclude that [the step-grandparent] has a justiciable interest in the controversy sufficient to override the statutory text" that explicitly sets forth who may sue for access. In re Derzapf, 219 S.W.3d 327, 332-33 (Tex. 2007). Similarly, in this case, we cannot conclude that Gary and Cindy B. have a justiciable interest in the controversy sufficient to override the statutory text requiring them to have substantial past contact in order to intervene as an "other person." See id. In re S.L.M., No. 04-07-00566-CV (Tex.App.- San Antonio June 18, 2008) nonparent standing, sibling visitation)

TEXARKANA CHILD CUSTODY AND VISITION - GRANDPARENT APPEALS

Texarkana Court of Appeals

In re M.A.H., No. 06-06-00081-CV, 224 SW3d 838 (Tex.App.- Texarkana, May 16, 2007)
(appeal from order granting custody to grandmother)

In re L.K.W.G., No. 06-06-00073-CV (Tex.App.- Texarkana, Feb. 2, 2007)
(pro se grandparent suit motion for visitation, motion for genetic testing, frivolous suit finding, sanctions imposed)