Sell, Steve v. Peters Fine Art, LTD. aka Gerald Peters Gallery--Appeal from 95th Judicial District Court of Dallas County (Opinion )

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State: Texas

Court: Texas Northern District Court

Docket No: 05-11-00469-CV

Case Date: 11/27/2012

Plaintiff: Sell, Steve

Defendant: Peters Fine Art, LTD. aka Gerald Peters Gallery--Appeal from 95th Judicial District Court of Dallas

Preview:L{I1RSE : REMAi' I); Opinion issued No'eniher 27, 2012. sNl) 4

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No. 05-1 1-00469-CV

STEVE SELL, Appellant
V. PETERS FINE ART, LTD. A/K/A/ GERALD PETERS GALLERY, Appelice On Appeal from the 95th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-10-00721-D

OPINION
Before Justices Bridges, Richter, and Lang Opinion By Justice Richter

Steve Sell appeals a final judgment awarding sanctions in favor of' Peters Fine Art, Ltd. In four issues, Sell complains the trial judge erred in granting sanctions for Sell's assertion of a DTPA claim. We reverse the trial court judgment and remand this case to the trial court for further proceedings.
Background

Steve Sell ("Sell") bought a painting by NC. Wyeth titled The Sheriff from Gerald

Peters (iallcr

.

Inc. ("Peters'') flr

I 5 milhon, Peters stated that the

painting

had appeared

on the cover of the August 1, 1908 edition of the Saturday Evening Post, A year after the
purchase. Sell lound out the painting had in fact not been on the cover of the Saturday

Evening

Post.

Sell sent an email to Peters to inquire about their earlier statement and Peters

responded they relied on the only published catalog of N.C. Wyeth's works available at the time of the sale, Sell filed suit against Peters for violation of the Texas l)eceptivc Trade Practices Act, breach of contract, fraud, and negligent misrepresentation. After adequate time for discovery, Peters filed a summary judgment and set it for hearing. Prior to the summary judgment hearing, Sell nonsuited his claims. The court issued its order of nonsuit on December 13th and four days later, Peters filed its motion for sanctions. The motion for sanctions claimed Sell failed to make reasonable inquiry beibre filing the State lawsuit, the lawsuit was either groundless and brought in bad faith or groundless and brought for the purpose of harassing Peters, and the legal contentions in Sell's petition were not warranted by existing law. Due to a mix-up in Sell's counsel's office, the notice of the hearing on the motion for sanctions never made it onto counsel's calendar. Consequently, Sell's counsel was not at the hearing on the motion for sanctions. When Sell's counsel was absent at the hearing, the trial judge called counsel's office, while on the record, inquiring about counsel's lack of presence. After the phone call, the trial court commenced the hearing with only Peters' counsel present. Following the

hearing, the trial court issued a three-page "final judgment" which awarded sanctions to Peters in the amount of $83,656.35. When Sell's counsel received the final judgment and discovered his failure to appear, he filed plaintiff's verified motion for reconsideration of order imposing sanctions and

requested a rehearing. Peters followed with defendant's response and then Sell filed
plaintiff's motion to vacate final judgment or, in the alternative, motion to modifr final

judgment. The trial court held a hearing on the motion to vacate and on March 16,2011, vacated the final judgment and issued an amended final judgment reducing the amount of
sanctions awarded. Sell contends the trial court's order was not specific enough to support sanctions under chapter 10 of the Texas Civil Practice and Remedies Code. Peters responds that the district court's order adequately described the sanctionable conduct. Analysis We review a trial court's imposition of sanctions under an abuse of discretion

standard. UnVund CCR Partners v. Villa, 299 S.W.3d 92,97 (rex. 2009). An assessment
of sanctions will only be reversed if the trial court acted without reference to any guiding rules and principles, such that its ruling was arbitrary or unreasonable. Id. Chapter 10 of the civil practice and remedies code provides for sanctions when parties advance frivolous pleadings and motions. Section 10.005 provides "A court shall

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describe in an order imposing a sanction under this chapter the conduct the court has determined violated Section I 0.001 and explain the basis for the sanction imposed." Ti:x,
Civ, PRAC, & REM, CorF. ANN.

10.005 (West 2002), The use of the word "shall" in the

statute indicates that the requirement for particularity in the sanction order is mandatory.

Univ. ofTex, at Arlington v, Bishop. 997 S.W.2d 350, 355 (Tex. App--Ft. Worth 1999, pet.
denied).

The court entered an amended final judgment on March 16th, 2011. The court's March 16th order does not state the underlying facts on which the court relied in imposing
sanctions, nor does it explain the reasons warranting the monetary sanctions imposed. Instead, the order only generally recites:
** *

It is ORDERED, ADJUDGED and DECREED that plaintiffs claims in this proceeding are dismissed without prejudice, pursuant to the Court's Order of nonsuit. It is further ORDERED, ADJUDGED and DECREED that Defendant Peters Fine Art Ltd., a/k/a/ Gerald Peters Gallery shall have and recover of and from Plaintiff Steve Sell the sum of $7,500 as reasonable and necessary attorney's fees for the plaintiffs violation of TEX. CIV. PRAC. & REM. CODE

Download 05-11-00469-cv-0.pdf