# Ramesh Kapur D/B/A AIC Management v. Wilcrest Park Townhomes Owners Association, Inc

> Texas Court of Appeals, 1st District (Houston) · February 29, 2024

URL: https://www.frixlaw.com/law-library/cases/9947404

## Case

- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** February 29, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9947404

## How later opinions describe it (automated extraction)

- noting “long-standing rule that a point may be waived due to inadequate briefing”

## Opinion text

Opinion issued February 29, 2024

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-22-00564-CV
———————————
RAMESH KAPUR D/B/A AIC MANAGEMENT, Appellant
V.
WILCREST PARK TOWNHOMES OWNERS’ ASSOCIATION, INC.,
Appellee

On Appeal from the 333rd District Court
Harris County, Texas
Trial Court Case No. 2019-03530

MEMORANDUM OPINION

The trial court granted summary judgment in favor of Appellee Wilcrest

Park Townhomes Owners’ Association, Inc. on its claims for breach of contract,

sworn account, judicial foreclosure, violations of the Texas Uniform Fraudulent

Transfer Act and Texas’ Fraudulent Lien or Claim Statute, declaratory relief, and
attorney’s fees. The trial court signed a final judgment awarding Wilcrest

$20,444.27 in damages and the right to foreclose on Appellant Ramesh Kapur’s

townhome.1

Kapur argues we should reverse the final judgment on the grounds (1) he

was deprived of due process because he was not notified of the summary judgment

hearing, (2) he should be afforded an opportunity, on remand, to present his

“meritorious defense” to Wilcrest’s claims, (3) the trial court erred in denying his

motion for new trial, and (4) he is entitled to sanctions against Wilcrest’s counsel.

Because the trial court did not abuse its discretion in granting Wilcrest’s

summary judgment motion, we lack jurisdiction to review the denial of Kapur’s

motion for new trial, and Kapur waived his sanctions argument, we affirm the trial

court’s judgment.

Background

Wilcrest is a non-profit corporation that administers the Wilcrest Park

Townhomes. Kapur, doing business as AIC Management, purchased one of the

townhomes (“the Townhome”) in 2014. In May 2018, Wilcrest noticed the non–

judicial foreclosure sale of the Townhome due to Kapur’s alleged failure to pay the

required maintenance assessments and other charges required by the Townhome’s

governing documents. Wilcrest alleges Kapur engaged in a series of fraudulent

1
The trial court awarded other relief in its order not relevant to our analysis.

2
transfers of the property in May 2018 to avoid payment of the amounts due to

Wilcrest and to avoid the non-judicial foreclosure.

In January 2019, Wilcrest sued Kapur and other individuals involved in the

alleged fraudulent transfers. Wilcrest alleged that Kapur breached his contract

with Wilcrest by failing to pay required maintenance assessments and other

charges and that Kapur was liable for a suit on a sworn account for the same

assessments and charges. Wilcrest sought judicial foreclosure of the Townhome.

Wilcrest also asserted Kapur violated the Texas Uniform Fraudulent Transfer Act2

and Texas’ Fraudulent Lien or Claim Statute3 and sought attorney’s fees.4 Kapur

filed a general denial in response to the petition.

2
See TEX. BUS. & COM. CODE § 24.001, et. seq.
3
Chapter 12 of the Civil Practice and Remedies Code contains the Fraudulent Lien
or Claim Statute. The Fraudulent Lien or Claim Statute provides in part:
(a) A person may not make, present, or use a document or other record
with:
(1) knowledge that the document or other record is a fraudulent court
record or a fraudulent lien or claim against real or personal
property or an interest in real or personal property;
(2) intent that the document or other record be given the same legal
effect as a court record or document of a court created by or
established under the constitution or laws of this state or the
United States or another entity listed in Section 37.01, Penal
Code, evidencing a valid lien or claim against real or personal
property or an interest in real or personal property; and
(3) intent to cause another person to suffer:
(A) physical injury;
(B) financial injury; or

3
On August 6, 2021, Wilcrest filed a traditional motion for summary

judgment and a notice of hearing setting the motion for hearing on October 5,

2021. According to the certificate of service, Kapur was served with both

documents by certified mail, return receipt requested, regular mail, and electronic

service. Kapur did not file a response to the summary judgment motion.

Kapur and Wilcrest attended a Zoom summary judgment hearing on October

5, 2021.5 The trial court denied the summary judgment motion, stating it was

“untimely at this point.” The trial court ordered the parties to mediation.

The parties did not mediate and on December 13, 2021, Wilcrest filed a

motion requesting the trial court to reconsider its motion for summary judgment.

According to the certificate of service, Kapur was served with the motion by

certified mail, return receipt requested, regular mail, and electronic service.

On December 15, 2021, Wilcrest filed a notice setting a Zoom hearing for its

summary judgment motion on March 1, 2022, again serving Kapur by certified

mail, return receipt requested, regular mail, and electronic service. Kapur did not

(C) mental anguish or emotional distress.
TEX. CIV. PRAC. & REM. CODE § 12.002.
4
Wilcrest amended its petition to include a claim for declaratory relief with respect
to the validity of several deeds involving the Property and with respect to the
existence of IDM Services, Inc., to which Kapur allegedly sold the property at one
point. Wilcrest contends IDM did not exist as a corporation when it purportedly
purchased the property.
5
Kapur asserts he learned of the October 5, 2021 hearing from his former attorney.

4
respond to the summary judgment motion6 or attend the hearing. The trial court

orally granted the motion at the March 1, 2022 hearing and it later issued a final

judgment on March 7, 2022. Among other things, the trial court granted Wilcrest

$20,444.27 in damages and the right to foreclose on the Townhome.

On April 6, 2022, Kapur filed a sworn motion to vacate summary judgment

and motion for new trial, arguing service of the summary judgment motion was

defective and that the address of the Townhome provided on the final judgment

was incorrect. On April 19, 2022, Wilcrest filed a motion for judgment nunc pro

tunc seeking to amend the final judgment to reflect the Townhome’s correct

address, which was properly identified in Wilcrest’s summary judgment motion.

The trial court signed a corrected final judgment7 on May 25, 2022, reflecting the

Townhome’s correct address.

6
Kapur filed a response to Wilcrest’s motion for summary judgment on May 20,
2022. In the response, he alleged, among other things, that (1) the (original) final
judgment contained “a fundamental error” because it provided the wrong address
of the Townhome, (2) some of Wilcrest’s summary judgment evidence was
inadmissible, and (3) Kapur raised genuine issues of material fact as to each claim.
Kapur also alleged affirmative defenses not previously pled.
7
As discussed below, the trial court had plenary power when it signed the corrected
final judgment. As such, the corrected final judgment was not a judgment nunc
pro tunc but rather a modified judgment. See Alford v. Whaley, 794 S.W.2d 920,
922 (Tex. App.–Houston [1st Dist.] 1990, no writ) (noting if court signs corrected
judgment during plenary jurisdiction, it is modified judgment, even if labeled
judgment nunc pro tunc). “A trial court has plenary power to reverse, modify, or
vacate its judgment at any time before it becomes final.” Mathes v. Kelton, 569
S.W.2d 876, 878 (Tex. 1978).

5
Kapur’s motion for new trial was overruled by operation of law on May 23,

2022,8 and the trial court signed an order denying the motion for new trial two days

later. This appeal ensued.

Motion to Dismiss

Wilcrest filed a motion to dismiss Kapur’s appeal for lack of jurisdiction,

arguing his notice of appeal was untimely. The Supreme Court has held that “if

the court makes any change in a judgment, no matter how minuscule—adding a

comma, for example—the time periods for the court’s plenary power and for

appeal recommence.” Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d

308, 315 (Tex. 2000).

The trial court signed the first final judgment on March 7, 2022. Kapur filed

his motion for new trial on April 6, 2022, and it was overruled by operation of law

on May 23, 2022. See TEX. R. CIV. P. 329b(c) (stating motion for new trial is

overruled by operation of law seventy-five days after judgment is issued). The

court’s plenary jurisdiction was thus set to have expired thirty days later, or on

June 22, 2022. TEX. R. CIV. P. 329b(e) (stating that when motion for new trial is

8
A motion for new trial is overruled by operation of law seventy-five days after a
judgment is signed. TEX. R. CIV. P. 329b(c). Because the seventy-fifth day in this
case fell on Saturday, May 21, 2022, Kapur’s motion for new trial was overruled
by operation of law on Monday, May 23, 2022. See TEX. R. CIV. P. 4; see also N.
Burnet Gun Store, LLC v. Tack, Tr. of Harvey Donald Testamentary Family Tr.,
604 S.W.3d 587, 589 (Tex. App.—Austin 2020, no pet.) (applying Texas Rule of
Civil Procedure 4 to deadline in Texas Rule of Civil Procedure Rule 329b(c)).

6
filed, court’s plenary power is extended to thirty days after motion is overruled,

either by written order or by operation of law, whichever occurs first).

The corrected final judgment was signed on May 25, 2022, during the

court’s plenary jurisdiction, causing the appellate deadlines to restart. See Lane

Bank Equip. Co., 10 S.W.3d at 315. Kapur’s notice of appeal, filed on June 23,

2022, or twenty-nine days after the corrected final order was signed, was thus

timely. TEX. R. APP. P. 26.1 (notice of appeal must be filed within thirty days after

judgment is signed).

We deny Wilcrest’s motion to dismiss the appeal.9

The Summary Judgment Motion

A. Standard of Review

We review a trial court’s ruling on a motion for summary judgment de novo.

Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When

reviewing a ruling on a traditional summary judgment motion, we take as true all

evidence favorable to the nonmovant, and we indulge in every reasonable

inference and resolve any doubts in the nonmovant’s favor. Id. at 661 (citing

Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003)).

To prevail on a traditional summary judgment motion, the movant must establish

9
We dismiss as moot Kapur’s motions to supplement the clerk’s record and to
extend time to file his response to the jurisdictional issue.

7
that no genuine issues of material fact exist and that it is entitled to judgment as a

matter of law. TEX. R. CIV. P. 166a(c).

B. Due Process

In his first issue, Kapur argues he was deprived of his due process rights

because he was not notified of the March 1, 2022 summary judgment hearing.10

He contends Wilcrest “never served a copy of [the] MSJ to any defendant” and that

had he been given an opportunity to be heard, he would have presented evidence to

raise a genuine issue of material fact and defeat the summary judgment.

Wilcrest filed its summary judgment motion and notice of hearing on August

6, 2021. According to the certificate of service, Wilcrest served the motion and

notice that day on Kapur by certified mail, return receipt requested and regular

mail at 9022 Beverlyhill St., Houston, TX 77063, and by electronic service. Kapur

did not file a response to the summary judgment motion11 but appeared at the

summary judgment hearing on October 5, 2021. The trial court held “that the

10
Kapur also argues that another defendant was not served with the summary
judgment. Because that defendant is not a party to this appeal, we do not address
that argument. Kapur also argued “all three defendants denied receiving the MSJ
copy” but does not cite to the record for this proposition. The reporter’s record
from the October 5, 2021 hearing, which Kapur attended, does not support this
statement.
11
Kapur told the trial court during the October 5, 2021 hearing he did not receive the
“summary judgment motion paperwork.”

8
motion for summary judgment [wa]s untimely at this point” and referred the

parties to mediation.12

On December 13, 2021, Wilcrest filed a motion with the trial court

(1) stating the parties had not been able to mediate with the court-appointed

mediator and (2) asking the court to reconsider its summary judgment motion. The

certificate of service indicates the motion was served on Kapur by certified mail,

return receipt requested and regular mail at 9022 Beverlyhill St., Houston, TX

77063, and by electronic service. On December 15, 2021, Wilcrest filed a notice

of hearing for its summary judgment motion, setting the motion for hearing on

March 1, 2022. According to the certificate of service, the notice was served on

Kapur by certified mail, return receipt requested and regular mail at 9022

Beverlyhill St., Houston, TX 77063, and by electronic service.

Kapur did not file a response to the summary judgment motion prior to the

March 1, 2022 hearing.13 Nor did Kapur appear at the hearing. The trial court

orally granted the summary judgment motion during the hearing and signed a final

judgment on March 7, 2022. The trial court later signed a corrected final judgment

on May 25, 2022.

12
Contrary to Kapur’s assertion in his appellate brief, the court did not decline to
rule because the defendants did not receive the summary judgment motion.
13
Kapur filed a response to the summary judgment motion on May 20, 2022.

9
Kapur argues that “it is apparent on the face of the record that [he] did not

receive either the motion for summary judgment or a notice of the hearing on the

motion.” He claims Wilcrest “did not serve a copy of [the] MSJ . . . even though it

alleges that [the] MSJ was served on Kapur [b]y mailing it by Certified Mail RRR

but provided no tracking number, no receipt of mailing, no Green Card as being

proof of its receipt, or offered Envelope returned with Green card with stamp

‘UNCLAIMED’[.]” Finally, Kapur argues the trial court was “expected to verify

the notice requirements of the rule.”14

Texas Rule of Civil Procedure 21a(e) provides that “[a] certificate by a party

or an attorney of record, or the return of the officer, or the affidavit of any other

person showing service of a notice shall be prima facie evidence of the fact of

service.” TEX. R. CIV. P. 21a(e). After the presumption of service is created, the

burden shifts to the non-movant to rebut the presumption of service. Landagan v.

Fife, No. 01-13-00536-CV, 2014 WL 2809813, at *4 (Tex. App.—Houston [1st

Dist.] June 19, 2014, no pet.) (mem. op.). “In the absence of any proof to the

contrary, the presumption has the force of a rule of law.” Thomas v. Ray, 889

S.W.2d 237, 238 (Tex. 1994) (orig. proceeding). The presumption “vanishes when

14
Kapur cites International Insurance Company v. Herman G. West, Inc., 649
S.W.2d 824, 825 (Tex. App.—Fort Worth 1983, no writ) in support of his
argument the trial court was expected to verify the satisfaction of the service
requirements. The case does not support that proposition. Regardless, the court
asked Wilcrest if the notice of hearing was sent by certified mail, return receipt
requested on Kapur, and Wilcrest confirmed it had been.

10
opposing evidence is introduced” that the document was not received. Cliff v.

Huggins, 724 S.W.2d 778, 780 (Tex. 1987).

The notice of hearing filed on December 15, 2021 included a certificate of

service showing Kapur was served by certified mail, return receipt requested and

regular mail at 9022 Beverlyhill St., Houston, TX 77063, and by electronic service.

Kapur does not argue that the physical address reflected in the certificate of service

is incorrect.15 Indeed, Kapur was served at the physical address which he affirmed

under oath was his correct address.16 Kapur’s former attorney provided the same

physical address for Kapur in his June 4, 2021 motion to withdraw. And Kapur

used the same physical address in a pleading17 Kapur filed on January 14, 2021,

and in his pro se notice of appeal.18

Kapur appears to argue in the sworn statement attached to his motion for

new trial that health issues precluded him from collecting mail from approximately

15
Kapur did, however, state in his motion for new trial that the email address
identified on the certificates of service was incorrect and, therefore, he was not
served with notice of the summary judgment proceedings. He also argues on
appeal that he was not served because the email address used by Wilcrest for
service of documents pertaining to the summary judgment proceedings was not
correct.
16
The sworn statement was attached to Kapur’s motion for new trial.
17
The record only contains the last page of the pleading, which is an exhibit to
Kapur’s motion for new trial.
18
The notice of appeal bears a different zip code but the same physical address. The
other pleadings that identify the physical address use the 77063 zip code.

11
January through March 2022 at the address identified on the certificate of service.19

But failure to collect mail, regardless of the reason, does not rebut the presumption

of service. See Nichols v. Goodger, No. 03-16-00044-CV, 2017 WL 3122793, at

*2 (Tex. App.—Austin July 20, 2017, no pet.) (mem. op.) (“That Nichols either

ignored the mail or refused it outright, as he acknowledged, does not change the

fact that he was, in fact, given rule-compliant notice of the trial setting. Nichols’s

refusal to receive or read the notices—which he uses as the basis of his argument

that he did not receive actual notice of the trial setting—constitutes constructive

notice of the trial setting.”) (emphasis in original) (citations omitted); cf. Guerra v.

Guerra, No. 04-20-00366-CV, 2022 WL 689097, at *4 (Tex. App.—San Antonio

Mar. 9, 2022, pet. denied) (mem. op.) (“Parents’ failure to collect mail while

absent from the country or to provide a different address to be served at while out

of the country did not entitle them to a bill of review.”).

Given Kapur’s failure to produce evidence to rebut the presumption Wilcrest

served him with the summary judgment motion and notice of hearings at his

physical address, we conclude Kapur was not deprived of due process.

We overrule Kapur’s first issue.

19
The verification states in part: “Because of these health issues, [Kapur] have had
rare opportunity to attend to his official duties except to collect mail at 9022
Beverlyhill location for the past about 3 months[.] [Kapur] stated he had no one
else working at the location due to pandemic situation to accept mail. [Kapur]
further stated he is unaware if any mail was returned.” (Emphasis added.)

12
C. Meritorious Defenses

Kapur argues he has a “meritorious defense to the underlying action and

remand is appropriate.” The record includes Kapur’s original answer, which

asserted a general denial and no affirmative defenses. Kapur argues he will be

prejudiced if the case is not remanded so he can assert his arguments “regarding

damages” and the statute of limitations.

Limitations is an affirmative defense subject to waiver if not affirmatively

pleaded. Cooke v. Morrison, 404 S.W.3d 100, 112 (Tex. App.—Houston [1st

Dist.] 2013, no pet.) (citing TEX. R. CIV. P. 94). Texas Rule of Civil Procedure 94

specifically identifies limitations as an affirmative defense that must be pleaded in

a responsive pleading. TEX. R. CIV. P. 94. Because Kapur did not affirmatively

plead the statute of limitations in his answer, he waived limitations. Moreover,

because Kapur filed a general denial and no affirmative defenses, he also waived

all other affirmative defenses. Fawcett v. Grosu, 498 S.W.3d 650, 663 (Tex.

App.—Houston [14th Dist.] 2016, pet. denied) (“All affirmative defenses are

waived when the defendant files only a general denial.”) (citing Hassell Constr.

Co. v. Stature Comm. Co., 162 S.W.3d 664, 667 (Tex. App.—Houston [14th Dist.]

2005, no pet.)).

Kapur has not provided any authority stating he is entitled to a remand to

avoid “suffer[ing] prejudice” regarding damages awarded by the trial court in its

13
final judgment, and we are not aware of any applicable authority in these

circumstances. The case on which he relies, Epps v. Fowler, 351 S.W.3d 862

(Tex. 2011), is inapposite and not a summary judgment case. In Epps, the

Supreme Court considered whether a defendant is a prevailing party entitled to

attorney’s fees when the plaintiff nonsuits a case without prejudice. Id. at 864.

The Court held the defendant is only a prevailing party if the court determines on

the defendant’s motion “that the plaintiff took the nonsuit in order to avoid an

unfavorable judgment.” Id. The Court remanded the attorney’s fee claim to the

trial court to determine whether the appellees dismissed their claim to avoid an

unfavorable judgment. Id. at 872. Nothing in the holding of Epps suggests we

may remand the case to allow Kapur to assert affirmative defenses he failed to

raise below in the first instance.

We overrule Kapur’s second issue.

Motion for New Trial

A. Standard of Review

We review a trial court’s denial of a motion for new trial for an abuse of

discretion. In re R.R., 209 S.W.3d 112, 114 (Tex. 2006) (citing Director, State

Emps. Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994)). A trial

court abuses its discretion when it acts in an “arbitrary or unreasonable” manner or

14
when it acts “without reference to any guiding rules and principles.” Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).

B. Analysis

The trial court signed its original final judgment on March 7, 2022. Kapur’s

motion for new trial was thus due on April 6, 2022. TEX. R. CIV. P. 329b(a)

(motion for new trial is due within thirty days after judgment is signed). Kapur’s

motion for new trial, while file-stamped April 6, 2022, bears a certificate of service

indicating it was served on April 12, 2022. Wilcrest filed a response to the motion

for new trial, arguing it was untimely based on the date on the certificate of

service.20 Kapur argues the trial court erred in denying his motion for new trial

because he timely filed it, as reflected by the court’s file stamp.

We need not address the timeliness of Kapur’s motion for new trial because

we lack jurisdiction to review its denial. Kapur’s notice of appeal does not

contemplate an appeal of the denial of his motion for new trial. In his notice of

appeal, Kapur states he is appealing the judgment signed on May 25, 2022, which

he attached to his notice. He does not indicate he is appealing the trial court’s

denial of his motion for new trial. We thus lack jurisdiction to review the denial of

his motion. See Ortiz v. St. Teresa Nursing & Rehab. Ctr., LLC, 579 S.W.3d 696,

702 (Tex. App.—El Paso 2019, pet. denied) (“[W]e are precluded from

20
We note that Wilcrest conceded in its motion to dismiss the appeal for lack of
jurisdiction that Kapur’s motion for new trial was filed timely.

15
considering an appeal from an order never identified in the notice of appeal.”)

(quoting TEX. R. APP. P. 25.1(b) (“The filing of a notice of appeal by any party

invokes the appellate court’s jurisdiction over all parties to the trial court’s

judgment or order appealed from.”) (emphasis in original)).

Even if we had jurisdiction to review the denial of Kapur’s motion for new

trial, we would not find the court abused its discretion. Kapur argues in his

appellate brief only that his motion for new trial was timely filed, apparently

believing that his motion for new trial was denied because the trial court thought it

untimely. The trial court did not explain why it denied Kapur’s motion, nor was it

obligated to provide a reason for the denial. See Banco Popular N. Am. v. Am.

Fund US Invs. LP, No. 05-14-00368-CV, 2015 WL 1756107, at *1 (Tex. App.—

Dallas Apr. 17, 2015, pet. denied) (mem. op.) (“Because the trial court’s order

denied Banco Popular’s motion for new trial, it was not required to give any reason

for doing so.”); Nicholson v. XTO Energy, Inc., No. 02-16-00045-CV, 2016 WL

6648755, at *1 n.2 (Tex. App.—Fort Worth Nov. 10, 2016, no pet.) (mem. op.)

(same).

Moreover, even though his motion for new trial was based on several

grounds, Kapur does not argue the merits of his motion for new trial in his

appellate brief. In the absence of any argument on the merits of Kapur’s motion

for new trial, we decline to find the trial court abused its discretion in denying it.

16
See TEX. R. APP. P. 38.1(i) (“The brief must contain a clear and concise argument

for the contentions made, with appropriate citations to authorities and to the

record.”); see also Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279,

284 (Tex. 1994) (noting “long-standing rule that a point may be waived due to

inadequate briefing”).

We overrule Kapur’s third issue.

Sanctions

In his fourth issue, Kapur argues Wilcrest’s counsel should be sanctioned for

engaging in perjury during the March 1, 2022 summary judgment hearing. Kapur

contends Wilcrest’s counsel “was successful in lying before the court that he had

notified all parties” of the summary judgment hearing. Kapur’s argument lacks a

single citation to the record or to any authority. He thus waived his argument. See

TEX. R. APP. P. 38.1(i); see also Encinas v. Jackson, 553 S.W.3d 723, 728 (Tex.

App.—El Paso 2018, no pet.) (holding appellant waived issue on appeal by failing

to provide citation to authority or apply applicable law to facts of case); Liberty

Mut. Ins. Co. v. Griesing, 150 S.W.3d 640, 648 (Tex. App.—Austin 2004, pet.

dism’d w.o.j.) (“Bare assertions of error, without citations to authority, waive

error.”).

Even if Kapur had not waived the issue, we lack jurisdiction to consider it.

Appellate courts are authorized to impose sanctions in limited circumstances. For

17
example, as Wilcrest notes, appellate courts are authorized to sanction a litigant

with respect to the filing of a frivolous appeal. Texas Rule of Appellate Procedure

45 states:

If the court of appeals determines that an appeal is frivolous, it may—
on motion of any party or on its own initiative, after notice and a
reasonable opportunity for response—award each prevailing party just
damages. In determining whether to award damages, the court must
not consider any matter that does not appear in the record, briefs, or
other papers filed in the court of appeals.

TEX. R. APP. P. 45.21

Appellate courts also may impose sanctions in connection with attorney

misconduct that occurs in the court of appeals. “[W]hen an attorney engages in

misconduct before our court . . . we retain the inherent power to discipline such

behavior when reasonably necessary and to the extent deemed appropriate.”

Johnson v. Johnson, 948 S.W.2d 835, 840 (Tex. App.—San Antonio 1997, writ

denied) (emphasis added); In re Terminix Int’l, Co., L.P., 131 S.W.3d 651, 653–54

(Tex. App.—Corpus Christi 2004, no pet.) (imposing sanctions pursuant to

21
A similar rule pertains to cases before the Supreme Court. Texas Rule of
Appellate Procedure 62 states:
If the Supreme Court determines that a direct appeal or a petition for
review is frivolous, it may—on motion of any party or on its own
initiative, after notice and a reasonable opportunity for response—award
to each prevailing party just damages. In determining whether to award
damages, the Court must not consider any matter that does not appear in
the record, briefs, or other papers filed in the court of appeals or the
Supreme Court.
TEX. R. APP. P. 62.

18
appellate court’s inherent power because of attorney’s acts during course of

original proceeding, which violated Texas Rules of Professional Conduct); cf. New

Penn Fin. LLC v. Salvagio, Nos. 09-19-00157-CV, 2021 WL 1306390, at *6 (Tex.

App.—Beaumont Apr. 8, 2021, no pet.) (mem. op.) (assessing “punitive fine”

against attorney who willfully violated appellate court’s writ of injunction).

Even assuming Kapur’s perjury allegations had merit, we could not grant the

relief sought because we lack jurisdiction to impose sanctions in circumstances

involving allegations of wrongdoing in the trial court. Appellate courts do not

make fact findings, thus we cannot make a determination that perjury occurred in

the trial court. “Findings of fact are the exclusive province of the jury and/or trial

court.” Bellefonte Underwriters Ins. Co. v. Brown, 704 S.W.2d 742, 745 (Tex.

1986); see also Tex. Nat’l Bank v. Karnes, 717 S.W.2d 901, 903 (Tex. 1986) (“[A]

court of appeals cannot make original findings of fact[.]”).

We overrule Kapur’s fourth issue.

Conclusion

We affirm the trial court’s judgment.

Veronica Rivas-Molloy
Justice

19
Panel consists of Justices Kelly, Countiss, and Rivas-Molloy.

20

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9947404. Public record. Not legal advice.