# Frank C. Powell and Evans and Powell, PLLC v. Kevin Fletcher and Steven Fletcher

> Texas Court of Appeals, 1st District (Houston) · November 26, 2024

URL: https://www.frixlaw.com/law-library/cases/10752928

## Case

- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** November 26, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- discussing “long-standing rule” that inadequate briefing waives issue on appeal
- recognizing the inherent power of courts which they “may call upon to aid . . . in the preservation of [their] independent and integrity.”

## Opinion text

Opinion issued November 26, 2024

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-22-00640-CV
———————————
FRANK C. POWELL AND EVANS AND POWELL, PLLC, Appellants
V.
KEVIN FLETCHER AND STEVEN FLETCHER, Appellees

On Appeal from the 257th District Court
Harris County, Texas
Trial Court Case No. 2018-67151

MEMORANDUM OPINION

Frank Powell and his law firm Evans and Powell, PLLC appeal from two

orders levying sanctions and a third order awarding attorneys’ fees as sanctions to

the appellees, Kevin and Steven Fletcher. We affirm.
Background

This case arose from a custody proceeding between Catherine Molloy and

Kevin Fletcher, the parents of twin children who were born in 2011. The parties in

the custody case included the paternal grandfather Dr. Steven Fletcher. They reached

a mediated settlement agreement (“MSA”) in March 2019. In June 2019, Powell

appeared as counsel for Molloy. He initiated an arbitration proceeding mandated by

the MSA to address disputes about drafting the final order. He threatened to initiate

further litigation and cause financial burden to the Fletchers if they did not

renegotiate the settlement agreement.

After the final order was entered in August 2019, Powell filed post-judgment

motions and appeals purportedly on Molloy’s behalf.1 During the course of the post-

judgment litigation, Molloy communicated with the Fletchers that she wished to end

the litigation and did not wish for Powell to continue representing her. The Fletchers

made this Court aware through a motion to show authority, and this Court abated the

case and remanded to the trial court for a hearing regarding Molloy’s representation.

The trial court held a five-day hearing in summer 2020. Molloy, Powell,

Molloy’s brother, and the Fletchers and their counsel testified during the hearing.

1
Powell moved to recuse the trial judge, alleging that the trial judge had committed
a criminal offense. See Powell v. Fletcher, 695 S.W.3d 675, 677 (Tex. App.—
Houston [1st Dist.] Mar. 26, 2024, pet. filed) (elaborating on Powell’s harassing
behavior and upholding $19,000 sanction against him for filing recusal motion in
bad faith).
2
Molloy stated that she repeatedly informed Powell that she desired to terminate both

the litigation and his representation of her. When she did so, Powell threatened to

sue Molloy and told her that she could be subject to criminal penalties. Molloy

testified that she had been in an intimate relationship with Powell against her will,

that he was her landlord, and that he was her employer. He used these relationships

to control her life. He verbally abused her when she stated that she wanted to end

the litigation. He also threatened her housing and her employment. Eventually,

Powell terminated Molloy’s employment, evicted her, and disclosed her mental

health records. He also requested that a guardian ad litem be appointed for Molloy

without a hearing, claiming he was an expert who could judge her competency.

Molloy testified that Powell’s post-judgment motion alleging that she had been

coerced by Kevin Fletcher into signing the MSA was a lie. Evidence at the hearing

also showed that Powell refused to turn over Molloy’s client file to her new counsel.

Molloy testified that she tried to “be polite” and placate Powell, editing some

documents related to the litigation and complimenting Powell. Powell testified that

Molloy’s editing of the documents and commentary showed her assent to his

representation. Testimony at the hearing also established that Powell represented

Molloy’s brother pro bono in an unrelated matter. Powell threatened to end his

representation of Molloy’s brother if the brother refused to sign affidavits accusing

3
Molloy of misconduct. Molloy and her brother testified that the statements in the

affidavits were false. Tragically, Molloy died soon after her testimony.

On September 3, 2020, the trial court entered extensive findings of facts and

conclusions of law. The trial court held that Powell did not have authority to

represent Molloy and that he had lacked authority to represent her since September

2019. The court held that Powell failed to follow Molloy’s direction and wishes

regarding representation. The trial court found Molloy credible and found Powell

not credible. The court detailed multiple conflicts of interest inherent in Powell’s

relationships with Molloy. While representing Molloy without compensation,

Powell also employed her as an attorney at his law firm, provided her with housing,

and was in a sexual relationship with her. Powell represented her brother pro bono

in an unrelated matter and predicated his continued representation on receiving

signatures from the brother on affidavits with allegations against Molloy. The trial

court’s findings include that Powell disclosed Molloy’s confidential information,

including health information. He also took positions and filed documents that

unreasonably delayed resolution of the underlying case or were solely to harass and

increase the financial burden on the parties. He refused to surrender Molloy’s client

file to her new counsel. The trial court sanctioned Powell $491,582.72.

Powell moved to void the order awarding sanctions, and as a result, the

Fletchers moved to increase the deposit in the court registry and for sanctions against

4
Powell. In July 2022, the trial court denied Powell’s motion and granted the

Fletchers’ motion. The July 2022 court order required Powell to add an additional

$76,000 deposit into the registry of the court and sanctioned him an additional

$7,500. The court held that Powell had invoked the continuing jurisdiction of the

trial court by filing his motion and setting it for hearing. The court found that

Powell’s motion was groundless and had no basis in law or fact, and that Powell

failed to disclose material facts and controlling case law. The court stated that

Powell’s motion was brought in bad faith to harass the Fletchers, and that Powell

had previously articulated his intent to harass them and their counsel, including his

strategy to increase litigation costs by filing duplicitous litigation. The court

sanctioned Powell $7,500 based on the attorney’s fees that the Fletchers incurred in

defending the motion and to deter Powell’s further misconduct. The court included

conditional, additional awards should Powell appeal. The July 2022 order stated that

under the terms of the September 2020 sanctions order, Powell must deposit $76,000

into the court’s registry because additional appellate proceedings had been initiated.

Between January 2020 and July 2022, Powell filed a series of recusal motions.

Judge Robert Schaffer was appointed by the Texas Supreme Court to hear Powell’s

fifth recusal motion. This motion sought to recuse Regional Presiding Judge Susan

Brown from presiding over Powell’s fourth recusal motion directed at the trial court.

5
The trial court denied Powell’s motion to recuse Judge Brown. In September 2022,

the court awarded $5,500 in attorney’s fees, plus additional appellate fees.

In this appeal, Powell appeals the September 2020 sanctions order, the July

2022 sanctions order, and the September 2022 attorney’s fee award. On appeal he

argues that the trial court did not have jurisdiction to sanction him because the

plenary power over the final order based on the MSA had expired. He also argues

that the trial court erred in awarding fees to Dr. Fletcher because he lacked standing

to be a party in the underlying child custody suit. In a third issue, he contends that

the trial court abused its discretion by awarding the September 2020 sanctions

against him because the evidence before the trial court was conflicting. Moreover,

he alleges that the trial court abused its discretion in various rulings during the

summer 2020 hearing because the trial court was biased. He also contends that the

trial court’s bias led to the erroneous denial of his recusal motions. He argues that

the trial court erred in imposing additional sanctions in July 2022 without giving him

opportunity to be heard. Finally, he contends that the trial court erred in awarding

attorney’s fees against him in September 2022 because he did not file a tertiary

recusal motion. We affirm.

Jurisdiction

In his first issue, Powell argues that the trial court lacked jurisdiction to

sanction him because the court’s plenary power had expired. He contends that all

6
post-judgment orders are void. The Fletchers respond that this Court has previously

stated that the trial court had jurisdiction to sanction Powell’s conduct, and even

without this Court’s specific permission, the trial court retained authority to sanction

misconduct committed before it, including conduct that occurred after plenary power

expired.

On June 23, 2020, this Court abated an appeal2 involving Molloy and the

Fletchers because the Fletchers had moved to show authority, alleging that appellant

Molloy had informed them that she no longer wished to prosecute the appeal and

that her attorney, Powell, was refusing to follow her instructions. We ordered the

trial court to file in this Court findings of fact as to whether Molloy wished to

continue prosecuting her appeal and the identity of the legal counsel representing

her and “to take any other action the court deems necessary to make such findings

of fact.” In September 2020, after a hearing, the trial court found that Powell did not

have authority to represent Molloy after September 2019, yet he continued filing

documents in the trial court.3 The trial court sanctioned Powell in September 2020

2
Purportedly on behalf of Molloy, Powell appealed the trial court’s final judgment
entering the MSA. Molloy v. Fletcher, No. 01-19-00840-CV, 2021 WL 1618466, at
*1 (Tex. App.—Houston [1st Dist.] Apr. 27, 2021, no pet.) (mem. op.) (per curiam)
(dismissing Molloy’s appeal after her death and stating trial court had continuing
jurisdiction and authority to impose sanctions against Powell).
3
Indeed, Powell continued filing documents even after the September 2020 trial court
order.
7
and July 2022. In September 2022, the trial court ordered him to pay attorney’s fees

for filing a tertiary recusal motion. Powell argues the trial court lacked jurisdiction

to sanction him on each occasion.

We have expressly held that the trial court had jurisdiction and authority to

sanction Powell. See Molloy v. Fletcher, No. 01-19-00840-CV, 2021 WL 1618466,

at *1 (Tex. App.—Houston [1st Dist.] Apr. 27, 2021, no pet.) (mem. op.) (per

curiam) (“In light of the trial court’s continuing and exclusive jurisdiction, the trial

court has the authority to determine whether to impose sanctions in accordance with

its previously prepared findings of fact and conclusions of law.); In re Molloy, No.

01-19-00894-CV, 2021 WL 1618469, at *1 (Tex. App.—Houston [1st Dist.] Apr.

27, 2021, no pet.) (mem. op.) (per curiam) (“In light of the trial court’s continuing

jurisdiction, the trial court may conduct any necessary post-judgment proceedings,

including imposition of sanctions consistent with its previously prepared findings of

fact and conclusions of law.”).

Even without this pronouncement, the trial court retained continuing,

exclusive jurisdiction to enforce its judgment in the underlying suit. TEX. FAM. CODE

§ 155.001 (trial court acquires continuing, exclusive jurisdiction in suit affecting

parent-child relationship). The MSA required Powell to refrain from harassing the

Fletchers. In its later findings of fact and conclusions of law, the trial court found

that Powell engaged in additional litigation to harass the Fletchers.

8
Under these circumstances, the trial court also had authority to sanction

Powell for his conduct. Courts “possess inherent powers that aid the exercise of their

jurisdiction, facilitate the administration of justice, and preserve the independence

and integrity of the judicial system.” Brewer v. Lennox Hearth Prods., LLC, 601

S.W.3d 704, 718 (Tex. 2020); Eichelberger v. Eichelberger, 582 S.W.2d 395, 398

(Tex. 1979) (recognizing the inherent power of courts which they “may call upon to

aid . . . in the preservation of [their] independent and integrity.”) Sanctions are “not

a judgment on the merits of an action,” and instead, require the trial court to

determine a collateral issue of whether an attorney abused the judicial process, and

if so, what sanctions would be appropriate. In re Bennett, 96 S.W.2d 35, 39 (Tex.

1997) (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396 (1990)). Under

Powell’s view, his conduct after the final order adopting the MSA would be

unpunishable and without recourse. But Powell filed numerous motions and

pleadings in the trial court after the MSA became final to undermine and undo the

MSA. Powell’s attempt to avail himself of the trial court is inconsistent with his

contention that the trial court lacks authority to sanction his actions. In this case, the

trial court had authority to sanction Powell for his egregious conduct. We overrule

Powell’s first issue.

9
Standing

In his second issue, Powell argues that Dr. Fletcher lacked standing to

participate in the underlying custody suit, therefore, the trial court could not sanction

Powell’s misconduct directed toward Dr. Fletcher.

Whether Dr. Fletcher had standing in the underlying custody dispute is not

relevant to the sanctions orders that Powell appeals. Standing turns on whether the

aggrieved party has a “claim of injury” not “too slight for a court to afford redress.”

Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d 763, 774 (Tex. 2020). Powell does not

dispute that his conduct impacted Dr. Fletcher. The trial court found that Powell

engaged in behavior specifically to harass Dr. Fletcher and increase litigation costs

and burdens. The trial court did not err in ordering sanctions against Powell for

conduct that impacted Dr. Fletcher. We overrule Powell’s second issue.

Sufficiency of the Evidence

Powell challenges the sufficiency of the evidence to support the September

2020 sanctions order. He argues that the evidence is insufficient because there was

contradictory evidence before the trial court. We disagree.

A. Standard of Review

We review an appeal from an order imposing sanctions for abuse of discretion,

and we will affirm if there is substantive and probative evidence to support the

court’s ruling. Brewer, 601 S.W.3d at 717. A trial court abuses its discretion if it acts

10
without reference to guiding rules and principles, such that the ruling is arbitrary or

unreasonable. Id. “The trial court does not abuse its discretion if it bases its decision

on conflicting evidence and some evidence supports its decision.” Unifund CCR

Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 2009) (per curiam).

We review the entire record to determine whether it includes some evidence

of a substantive and probative character that supports the trial court’s decision. See

Brewer, 601 S.W.3d at 717 (“A decision lacking factual support is arbitrary and

unreasonable and must be set aside.”). We defer to the credibility decision made by

the trial court. Anderson v. Hernandez, No. 01-21-00490-CV, 2023 WL 8630980, at

*6 (Tex. App.—Houston [1st Dist.] Dec. 14, 2023, no pet.) (mem. op.) (citing In re

A.B., 437 S.W.3d 498, 503 (Tex. 2014)). “[L]egal and factual sufficiency of the

evidence are not independent grounds of error but are merely factors to be considered

in determining whether the trial court abused its discretion.” In re Roisman, 651

S.W.3d 419, 440 (Tex. App.—Houston [1st Dist.] 2022, no pet.).

A sanction must be neither unjust nor excessive. Nath v. Tex. Children’s

Hosp., 446 S.W.3d 355, 363 (Tex. 2014) (“Nath I”). A sanction is “just” when it is

“directed against the abusive conduct with an eye toward remedying the prejudice

caused to the innocent party.” Id. A sanction is not excessive when it is “no more

severe than necessary to satisfy its legitimate purposes . . .[which] may include

securing compliance with the relevant rules of civil procedure, punishing violators,

11
and deterring other litigants from similar misconduct.” Id.; see also Low v. Henry,

221 S.W.3d 609, 614 (Tex. 2007) (“To determine if sanctions were appropriate or

just, the appellate court must ensure there is a direct nexus between the improper

conduct and the sanction imposed.”).

A trial court may be authorized to impose sanctions against a party or the

party’s attorney by rule, statute, or inherent authority. See, e.g., TEX. R. CIV. P. 13

(Effect of Signing Pleadings, Motions and Other Papers; Sanctions); TEX. CIV. PRAC.

& REM. CODE §§ 9.001–.014 (Frivolous Pleadings and Claims); id. §§ 10.001–.006

(Sanctions for Frivolous Pleadings and Motions); Phillips v. Am. Bankers Ins. Co.

of Fla., No. 01-18-00375-CV, 2019 WL 3121856, at *7 (Tex. App.—Houston [1st

Dist.] July 16, 2019, pet. denied) (mem. op.) (“A trial court possesses the inherent

authority to impose sanctions for a bad faith abuse of the judicial process even when

the specific conduct is not covered by a rule or statute.”).

B. The trial court did not abuse its discretion by imposing sanctions.

After the summer 2020 hearing, the trial court made 176 factual findings and

21 conclusions of law. The trial court found that Powell and his firm did not have

authority to represent Molloy and had lacked authority to represent her since

September 21, 2019. The trial court found that Molloy “clearly and unequivocally”

desired to dismiss her appellate matters, yet Powell refused to do so.

12
The trial court found that Powell acted with bad faith and intent to harass the

Fletchers and their counsel during the June 2019 arbitration of the MSA. The court

found that Powell’s main objective in attending the arbitration was to threaten

continued, expensive litigation if the Fletchers did not capitulate to Powell and his

proposed MSA terms. The trial court held that Powell’s verbal threats against the

Fletchers were evidence of his bad faith both in the trial court and in the appeals that

followed.

The trial court also found that Powell filed multiple motions after the

arbitration in bad faith for the purpose of harassment and increasing the Fletchers’

litigation costs. Powell alleged that family violence had impaired Molloy’s ability to

make decisions at the mediation and that Molloy had been coerced into signing the

MSA. Powell also frivolously filed motions against the Fletchers accusing them of

fraud. The court held that the motions were filed to harass and intimidate the

Fletchers.

On appeal, Powell challenges some but not all the trial court’s findings. He

alleges that Molloy’s testimony was inaccurate. He challenges whether some of his

filings were in fact baseless. He argues that the evidence of whether his filings

accusing Kevin Fletcher of family violence was a sham is “not conclusive.” He

reasserts his standing complaint regarding Dr. Fletcher, and he argues that contrary

13
to the court’s findings, the evidence shows that he did turn over Molloy’s file to her

new counsel.

Powell does not specifically challenge the trial court’s findings regarding his

threats to opposing counsel and the Fletchers during and after the arbitration that

occurred in June 2019. The trial court found that Powell’s actions were motivated

by personal animosity toward opposing counsel and the opposing parties. The court

found that his actions demonstrated an intent to harass the Fletchers and their counsel

and that his objective was to threaten continued, expensive litigation if the Fletchers

did not renegotiate the MSA terms. The court also found that Powell pursued his

“own agenda in the litigation notwithstanding the requests, desires, or needs of his

client.” He threatened to create havoc for the opposing parties. The court found that

these threats were evidence of bad faith.

We must uphold the trial court’s sanctions order if it is correct on “any legal

theory supported by the record.” Anderson, 2023 WL 8630980, at *6. The

unchallenged trial court findings that Powell’s actions were motivated by an

improper purpose independently justify sanctions. The trial court found that

Powell’s actions were designed to harass the Fletchers, needlessly increasing their

litigation costs. See TEX. CIV. PRAC. & REM. CODE § 10.001(1). “[A]n improper

purpose alone is a sufficient predicate for sanctions under Chapter 10.” Nath I, 446

S.W.3d at 366 n.14. The trial court did not abuse its discretion in sanctioning Powell.

14
Moreover, to the extent Powell argues that we must reverse because the trial

court heard evidence that contradicted the trial court’s findings, this argument is

erroneous. We review sanctions determinations for an abuse of discretion and defer

to the trial court’s credibility determinations. Id. The trial court heard overwhelming

evidence that Powell had no authority to represent Molloy after September 2019.

This included evidence of Powell’s threats to Molloy and his refusal to follow her

instructions, evidence that Powell refused to turn over Molloy’s client file, and that

he made a baseless request for a guardian for her. The trial court heard testimony

and reviewed documentary evidence showing that Powell had threatened Molloy

when she attempted to end the litigation. He threatened to fire her and evict her, and

he was verbally abusive towards her. The trial court was free to judge the credibility

of Powell’s testimony. The fact that there was in any way conflicting evidence before

the trial court does not render the trial court’s findings erroneous. We hold that the

trial court did not abuse its discretion in sanctioning Powell. We overrule Powell’s

issue related to the sufficiency of the evidence to support the September 2020

sanctions order.

Judicial Impartiality

In two separate issues, Powell alleges that the trial court was biased. In one

issue, Powell complains about the way the trial court conducted the September 2020

hearing, arguing that the trial court did not conduct proceedings that were “fair and

15
appropriate.”4 Though he presents his argument as one about the trial court’s

management of the proceedings, he includes several sub-arguments complaining

about various evidentiary rulings, credibility of witnesses, attorney-client privilege,

supplementation of the record, and the trial court’s factual findings. In a separate

issue,5 Powell contends that the trial court abused its discretion by denying his

“motions to recuse.” He also complains about the judge’s conduct during the

hearings and the findings of facts and conclusions of law.

Both issues are multifarious. Multifarious issues bring forth combined

complaints based on more than one legal theory within a single issue. Walker v.

Walker, 642 S.W.3d 16, 212 (Tex. App.—El Paso 2021, no pet.); see Hamilton v.

Williams, 298 S.W.3d 334, 338 n.3 (Tex. App.—Fort Worth 2009, pet. denied)

(stating that issue is multifarious when it generally attacks the trial court’s order with

numerous arguments). Appellate courts may disregard points of error that are

multifarious. Walker, 642 S.W.3d at 212; Restrepo v. Alliance Riggers &

Constructors, Ltd., 538 S.W.3d 724, 733 (Tex. App.—El Paso 2017, no pet.),

abrogated in part on other grounds by Serafine v. Crump, 691 S.W.3d 917, 921

(Tex. 2024) (per curiam); Rich v. Olah, 274 S.W.3d 878, 885 (Tex. App.—Dallas

2008, no pet.).

4
Powell briefs this argument as “Issue Three.”
5
In Powell’s brief, this is issue five.
16
In both instances, Powell has “combined complaints based on more than one

legal theory within a single issue, and, consequently brought forth a multifarious

issue on appeal.” Quiroz v. Gray, 441 S.W.3d 558, 591 (Tex. App.—El Paso 2014,

no pet.); Hollifield v. Hollifield, 925 S.W.2d 153, 155 (Tex. App.—Austin 1996, no

writ) (stating that an issue is multifarious when it embraces more than one specific

ground of error, or if it attacks several distinct and separate rulings of the court). We

may consider multifarious issues in the interest of justice if we can discern, with

reasonable certainty, the error about which the appellant complains. Walker, 642

S.W.3d at 212; Restrepo, 538 S.W.3d at 733–34. In considering the appellant’s brief,

we keep in mind that the Rules of Appellate Procedure require a brief to contain a

clear and concise argument for the contentions made, with appropriate citations to

authorities and to the record. TEX. R. APP. P. 38.1(i). “Bare assertions of error,

without argument or authority, waive error.” McKellar v. Cervantes, 367 S.W.3d

478, 484 n.5 (Tex. App.—Texarkana 2012, no pet.).

Powell’s issue regarding the way in which trial was conducted contains

several different complaints about the trial court rulings. Some of the sub-issues

Powell argues include that the trial court erroneously ignored the rules of evidence,

systematically excluded admissible evidence, limited the scope of cross-

examination, controlled the order of witnesses, excluded testimony based on

attorney-client privilege, and excluded testimony based on hearsay that was not

17
hearsay. He fails to show in each instance how the trial court’s error probably caused

the rendition of an improper judgment. TEX. R. APP. P. 44.1. He also does not

appropriately cite to authority to support each of his arguments. TEX. R. APP. P.

38.1(i). For example, though he complains about evidentiary rulings, Powell does

not cite to the Texas Rules of Evidence governing admission of evidence, and he

does not explain how the trial court’s evidentiary rulings caused him harm. We hold

that Powell’s issue related to the trial court’s abuse of discretion in conducting the

proceedings is multifarious. We cannot discern his arguments with reasonable

certainty, and the issue on appeal will be disregarded. See Restrepo, 538 S.W.3d at

733–34 (noting that appellants challenged the sufficiency of the evidence to support

a jury’s verdict but disregarding interjected sub-issues which included argument

about erroneous evidentiary rulings).

Similarly, Powell’s issue regarding the trial court’s abuse of discretion in

denying his motions for recusal is multifarious. Powell first complains about denial

of the recusal motions but also complains about the trial court’s actions during the

August 2020 hearings, such as dictating the order of witnesses. He finally argues

that the findings of fact and conclusions of law are “self-serving, self-dealing” and

designed to “exact revenge and punishment on Powell.” Powell has combined

complaints based on multiple legal theories into a single issue. Quiroz, 441 S.W.3d

at 592.

18
The issue is also inadequately briefed. TEX. R. APP. P. 38.1(i) (stating brief

must contain clear and concise argument with appropriate citations to authorities and

to record.) Powell states that the court abused its discretion in denying his “motions

to recuse.” He does not include citations to the record for the motions or the orders

denying them. He does not explain when the motions were filed and when or how

the trial court denied them. When an appellate issue lacks citation to the record,

nothing is presented for review. See Fredonia State Bank v. Gen. Am. Life Ins. Co.,

881 S.W.2d 279, 284–85 (Tex. 1994) (discussing “long-standing rule” that

inadequate briefing waives issue on appeal). An appellate court has no duty to

perform an independent review of the record to determine whether there was error.

Dowling v. Perez, No. 01-22-00865-CV, 2024 WL 628871, at *1 (Tex. App.—

Houston [1st Dist.] Feb. 15, 2024, no pet.) (mem. op.) (citing Wade v. Comm’n for

Lawyer Discipline, 961 S.W.2d 366, 373 (Tex. App.—Houston [1st Dist.] 1997, no

pet.) (“An appellate court is under no duty to make an independent search of the

record for evidence supporting an appellant’s position.”). To do so would abandon

our role as neutral adjudicators and have us become an advocate for that party.

Dowling, 2024 WL 628871, at *1. It is not possible to decipher what motions Powell

filed, when he filed them, and when the trial court denied them. Powell has waived

this issue.

19
Finally, we note, as to each issue regarding the trial court’s conduct and

refusal to recuse based on that conduct, a trial court has broad discretion over the

conduct of a trial and the exclusion of evidence. JLG Trucking, LLC v. Garza, 446

S.W.3d 157, 161 (Tex. 2015) (citing Interstate Northborough P’ship v. State, 66

S.W.3d 213, 220 (Tex. 2001)). In the exercise of this discretion, a trial court may,

among other things, “control the presentation of evidence so as to avoid needless

consumption of time.” In re M.A.S., 233 S.W.3d 915, 924 (Tex. App.—Dallas 2007,

pet. denied); see State v. Gaylor Inv. Tr. P’ship, 22 S.W.3d 814, 819 (Tex. App.—

Houston [14th Dist.] 2010, no pet.) (“Every trial court has the inherent power to

control the disposition of the cases on its docket ‘with economy of time and effort

for itself, for counsel, and for litigants.’” (quoting Hoggett v. Brown, 971 S.W.2d

427, 495 (Tex. App.—Houston [14th Dist.] 1997, pet. denied))). Additionally,

evidentiary decisions are committed to the trial court’s sound discretion. U-Haul

Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012). “‘[J]udicial rulings alone

almost never constitute a valid basis for a bias’” because “bias or prejudice is

something more than unfavorable ruling and must ‘connote a favorable or

unfavorable disposition or opinion that is somehow wrongful or inappropriate.’”

Casas v. State, 524 S.W.3d 921, 924 (Tex. App.—Fort Worth 2017, no pet.) (quoting

Liteky v. United States, 510 U.S. 540, 550 (1994)). The trial court had discretion to

20
“maintain control and promote expedition” of the hearing, which was conducted

remotely. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001).

We hold that Powell’s issues regarding judicial impartiality and denial of his

motions to recuse based on alleged bias are multifarious and inadequately briefed.

Opportunity To Be Heard

Powell next argues that the trial court erred by imposing additional sanctions

against him in July 2022 without giving him an opportunity to be heard. The record

does not support this assertion.

The record reflects that in May 2022, nearly two years after the order was

entered, Powell moved to void the trial court’s September 3, 2020, sanctions order.

At a July 12, 2022, hearing on Powell’s May 2022 motion, Powell objected to

determination of sanctions issues at the hearing. The trial court ruled in his favor and

set a hearing for three days later. Powell did not object, and the court held the hearing

as scheduled. The trial court denied his motion to void the September 2020 sanctions

order, held that the motion had been filed for an improper purpose, and ordered

additional sanctions against Powell.

The record does not support Powell’s contention that the trial court sanctioned

him without “sufficient notice.” Moreover, Powell did not preserve this complaint

for appellate review because he did not object in the trial court. TEX. R. APP. P.

21
33.1(a). A party must first complain in the trial court to preserve a complaint for

appellate review. TEX. R. APP. P. 33.1(a)(1)(A).

The trial court sanctioned Powell because he filed a motion in May 2022 that

was baseless and filed for an improper purpose. TEX. CIV. PRAC. & REM. CODE

§ 10.001(1). The motion was filed nearly two years after the order about which it

complains. The trial court did not abuse its discretion when it held that Powell

brought the motion to harass the Fletchers yet again, to drive up litigation costs, and

to file duplicitous litigation. Brewer, 601 S.W.3d at 717. Contrary to Powell’s

argument, the trial court specifically explained its calculations for determining the

additional sanctions amount. See Low, 221 S.W.3d 609 at 614 (stating appellate

court must ensure direct nexus between improper conduct and sanctions impose).

Additionally, the trial court awarded $75,000 plus conditional appellate fees

to the Fletchers for the costs incurred in defending against the July 2022 motion and

to deter Powell’s further misconduct. The trial court also required an additional

$76,000 deposited into the registry of the court because Powell had initiated

additional appellate review of the September 3, 2020 order. By the terms of that

order, the sanctions increased if it was appealed. We cannot say that the trial court’s

ruling was arbitrary or unreasonable. Brewer, 601 S.W.3d at 717. We overrule

Powell’s issue related to the July 15, 2022 sanctions order.

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Attorney’s Fees for Tertiary Recusal Motion

Powell complains that the trial court’s September 15, 2022, order awarding

attorney’s fees and denying Powell’s motion to recuse the administrative judge must

be vacated. He argues that the underlying motion to recuse was not a tertiary recusal

motion. We disagree.

Section 30.016 of the Texas Civil Practice and Remedies Code states that a

judge who hears and denies a tertiary recusal motion against another judge shall

award reasonable and necessary attorney’s fees and costs to the party opposing the

motion. TEX. CIV. PRAC. & REM. CODE § 30.016(c). The section defines “tertiary

recusal motion” as “a third or subsequent motion for recusal or disqualification filed

against a district court” by the same party in a case. Id. § 30.016(a). Powell argues

that he is not a party to the underlying litigation, and he did not file a tertiary motion.

The record reflects that Powell filed five recusal motions in the case between January

28, 2020, and July 28, 2022. The first motion, filed January 28, 2020, was filed by

Powell on Molloy’s behalf. Even if we were to exclude that motion as filed for

Molloy instead of Powell directly, the record reflects that Powell filed four

additional recusal motions. Powell’s repeated arguments that he cannot be

sanctioned because he is not a party to the litigation are without merit. Phillips, 2019

WL 3121856, at *7. (stating that trial court has inherent authority to impose

sanctions for abuse of judicial process)

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Powell also argues that the trial court lost plenary power to enter the attorney’s

fees sanctions order because the order was entered 31 days after the court denied his

recusal motion. The trial court denied the fifth motion to recuse on August 15, 2022.

Two days later, the Fletchers moved for attorney’s fees, arguing they were required

because Powell’s motion was a tertiary motion. The motion for fees extended the

court’s plenary power. See TEX. R. CIV. P. 329b(g). The trial court did not abuse its

discretion in ordering attorney’s fees as a sanction for a tertiary recusal motion. We

overrule Powell’s issue related to the September 2022 attorney’s fees order.

Conclusion

We affirm the judgment of the trial court. All pending motions are denied.

Peter Kelly
Justice

Panel consists of Justices Kelly, Landau, and Rivas-Molloy.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10752928. Public record. Not legal advice.