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Opinion issued June 11, 2009

In
The

Court of
Appeals

For
The

First
District of Texas

NO. 01-08-00847-CV

__________

YIGAL BOSCH,
Appellant

V.

MARK S. ARMSTRONG, PAUL BAILIFF, AND SQUIRE, SANDERS &
DEMPSEY L.L.P., Appellees

On Appeal
from the 280th District Court

Harris County, Texas

Trial Court
Cause No. 2008-17963

MEMORANDUM
OPINION

Appellant,
Yigal Bosch, proceeding pro se,
(1)

challenges the trial court's
rendition of summary judgment in favor of appellees, Mark S. Armstrong,
Paul Bailiff, and Squires, Sanders & Dempsey, L.L.P. ("SSD"), in
Bosch's suit against appellees for misrepresentation, "abuse of process
and interfering in free commerce," malicious prosecution, defamation, and
fraud. In eight issues, Bosch contends that the trial court erred in
"overruling [his] motion for a new trial by operation of law," granting
appellees' summary judgment motion based upon their affirmative defense of
privilege, and in sanctioning
him in the amount of $5,000 under Texas Rules of Civil Procedure 13 and
215.2(b) based upon findings that he had "improperly attempted to gain
advantage" and had filed a groundless pleading in bad faith and for
purposes of harassment.

We affirm.

Factual and
Procedural Background

In his
petition, filed on March 24, 2008, Bosch, a real estate investor, alleged
that on September 19, 2007, appellees, on behalf of their client, Toni
Scott, who was a business associate of Bosch,"fraudulently filed a
petition against [Bosch] and three other entities" for damages resulting
from the sale of a property in Corpus Christi. Bosch alleged that
appellees, in this related lawsuit, "intentionally presented untrue facts"
in Scott's petition, harassed the purchaser of the property by requesting
documents, and ruined his reputation. Bosch further alleged that appellees
had "submitted fraudulent statements" to obtain a temporary restraining
order in the related lawsuit.

In support
of his misrepresentation claim, Bosch asserted that appellees had obtained
the temporary restraining order with a "false and perjuries [sic]
affidavit" and had filed the related lawsuit without any "investigation or
study" "for the purpose of receiving legal fees." In support of his "abuse
of process and interfering in free commerce" claim, Bosch asserted that
appellees had "institute[d] an obstacle to future purchasers of real
estate and abused federal laws." In support of his malicious prosecution,
defamation, and fraud claims, Bosch asserted that appellees had attempted
to extort money from him by filing the related lawsuit and wrongfully
accusing Bosch of theft.

Appellees
filed an answer, in which they generally denied Bosch's allegations and
asserted the affirmative defense of privilege on the ground that the
statements upon which Bosch based his claims "were made in the course of a
judicial proceeding." Appellees then filed their summary judgment motion,
asserting that the statements made in Scott's petition were privileged and
true. In their summary judgment motion, appellees explained that, prior to
their filing of Scott's lawsuit, Scott retained Armstrong, an attorney
with the law firm of SSD. Armstrong, on behalf of Scott, who was the
largest holder of membership interests in a limited liability company or
companies that Bosch managed, sent Bosch a notice of breach and a demand
letter, claiming that Bosch had breached an operating agreement by selling
the company's property without the consent of the members and retaining
the proceeds of this sale. After Bosch failed to respond to the demand,
Armstrong filed Scott's petition, setting forth these allegations.
Appellees explained that, after filing Scott's lawsuit, Armstrong also
served, on behalf of Scott, a notice of the related lawsuit upon the
purchaser of the property to alert it that Scott would be subpoenaing it
for the purchase documents. Armstrong also filed, on behalf of Scott, an
application for a temporary restraining order, seeking orders prohibiting
Bosch from selling or otherwise encumbering the assets of Bosch's limited
liability companies and diluting or reducing Scott's membership interests.
The trial court granted Scott's application in this related lawsuit, and
the parties subsequently entered into three agreed extensions of this
restraining order. Appellees attached to their summary judgment motion all
of these documents from Scott's lawsuit.

Appellees
argued in their summary judgment motion that all of Bosch's claims in
Scott's lawsuit were barred by the affirmative defense of privilege
because these claims arose from statements "made in the court papers filed
in the course of a judicial proceeding." Specifically, appellees asserted
that the privilege applied to the demand letters, pleadings, affidavits,
temporary restraining order, and other papers filed in Scott's lawsuit,
including those served in connection with the case. Appellees also
challenged the factual basis of Bosch's claims by attaching evidence to
show that the property in question had been sold prior to the filing of
Scott's lawsuit. Appellees argued that Bailiff, who was another attorney
at SSD, was entitled to summary judgment because his only connection with
Scott's lawsuit was the inclusion of his name in the signature block of
the pleadings. Appellees asserted that Armstrong was the
attorney-in-charge of Scott's lawsuit and was solely responsible for the
pleadings and other documents filed in Scott's lawsuit. Finally, appellees
sought sanctions on the ground that Bosch's claims against them were
groundless.

Bosch filed
a response, asserting that appellees had filed Scott's lawsuit without any
investigation into or familiarity with the relevant statutory provisions
with the motive to "increase litigation fees." In their reply, appellees
asserted that Bosch had not provided any summary judgment evidence that
appellees had made any representations outside of the related lawsuit or
that Bailiff or SSD had committed any of the conduct at issue.

The trial
court granted appellees' summary judgment motion and dismissed Bosch's
claims. The trial court found that, in violation of Texas Rule of Civil
Procedure 13, Bosch's claims against appellees were groundless and were
not warranted by a good-faith argument for the extension of existing law.
The trial court found that, in violation of rule 13, Bosch had "improperly
attempted to gain an advantage" in Scott's lawsuit by filing the instant
lawsuit. The trial court sanctioned Bosch in the amount of $5,000 for
filing a groundless pleading in violation of rule 13. In its findings of
fact and conclusions of law, the trial court found that Bosch had filed a
groundless pleading for the purpose of harassment and in bad faith in
violation of rule 13 and concluded that $5,000 was a reasonable
sanction.

Summary
Judgment Hearing and New Trial Motion

In his
first issue, Bosch argues that the trial court "abused its discretion by
overruling [his] motion for a new trial by operation of law" because it
did not conduct a summary judgment hearing and " prevented [him] from
having his day in court and due process." We construe Bosch's brief to
include a complaint that the trial court abused its discretion in not
setting a hearing on his new trial motion.

It is
purely within a trial judge's discretion as to whether to hold an oral
hearing on a summary judgment motion. See Whiteside v. Ford Motor
Credit Co., 220 S.W.3d 191, 194 (Tex. App.--Dallas 2007, no pet.);
Retzlaff v. Texas Dept. of Criminal Justice, 135 S.W.3d 731, 745
(Tex. App.--Houston [1st Dist.] 2003, no pet.). Here, the trial court
considered appellees' summary judgment motion under submission without an
oral hearing. Bosch's due process rights were satisfied as long as he
received a reasonable opportunity to present his written response and
evidence. See Whiteside, 220 S.W.3d at 194-95. Bosch does not
complain that he did not receive proper notice of the hearing, nor does he
complain that he was denied the opportunity to respond to and present
evidence in regard to the summary judgment motion. Accordingly, we hold
that the trial court did not abuse its discretion in not holding an oral
hearing. See id.

In regard
to the new trial motion, there is nothing in the record before us that
indicates that Bosch ever timely requested a hearing on his new trial
motion or that the trial court denied any such request. Although Bosch
complained in his new trial motion about the trial court's consideration
of the summary judgment issues by submission, Bosch specifically requested
that the trial court simply "read" the new trial motion. Bosch only
requested an oral hearing on his new trial motion after the trial court
had lost plenary power over the case. Moreover, Bosch does not assert that
the failure of the trial court to conduct a hearing on his new trial
motion precluded him from presenting evidence necessary to support any of
the grounds asserted for the new trial. See Tex. R. Civ. P.
324(b)(1). We hold that Bosch waived any request for a hearing on his new
trial motion and that the trial court did not err in overruling his motion
by operation of law. See Tex. R. Civ. P. 329b(c).

We overrule
Bosch's first issue.

Summary
Judgment

In his
second issue, Bosch contends that the trial court erred in granting
appellees' summary judgment motion. Other than setting forth the general
summary judgment standard of review, Bosch provides the following, very
limited briefing on this issue:

The
[Appellees] in the [related lawsuit] raised the issue of defamation, but
ignored the other causes of actions, the interference in the general
commerce, the TRO, the misrepresentations of facts, the violations of the
LLCA's rules and the loss of sale, all of which preclude summary judgment.
Defendants used the defense of absolute privilege, which is not a defense
for violating the rules.

. . .
.

[Appellees]
moved on the cause of action for defamation only. Ignoring the rules of
and law's violations. [sic]

Bosch
provides no authority in his briefing of this issue related to appellees'
assertion of privilege. He also does not provide any specific discussion
as to how the defense of privilege applies or does not apply to his
claims.

In his
eighth issue, which is related to his second, Bosch contends that the
trial court erred in finding
that appellees' defense of privilege applied to bar his claims. In his briefing in
support of this issue, Bosch primarily attacks the merits of Scott's
claims in the related lawsuit. For example, Bosch states that Scott's
related lawsuit "was barred by law" and that the timing of the related
lawsuit was "premature" because the "final sale [of the property]
occurred" after the filing of the related lawsuit. Citing to various
statutory provisions and rules, Bosch further contends that Scott "did not
have standing to sue or capacity to sue Bosch at the time she did,
therefore the absolute privilege was not invoked."

To prevail
on a summary judgment motion, a movant has the burden of proving that it
is entitled to judgment as a matter of law and that there is no genuine
issue of material fact. Tex. R. Civ. P. 166a(c); Cathey v. Booth,
900 S.W.2d 339, 341 (Tex. 1995). When a defendant moves for summary
judgment, it must either (1) disprove at least one essential element of
the plaintiff's cause of action or (2) plead and conclusively establish
each essential element of its affirmative defense, thereby defeating the
plaintiff's cause of action. Cathey, 900 S.W.2d at 341;
Yazdchi v. Bank One, Tex., N.A., 177 S.W.3d 399, 404 (Tex.
App.--Houston [1st Dist.] 2005, pet. denied). When deciding whether there
is a disputed, material fact issue precluding summary judgment, evidence
favorable to the non-movant will be taken as true. Nixon v. Mr. Prop.
Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Every reasonable
inference must be indulged in favor of the non-movant and any doubts must
be resolved in its favor.
(2) Id. at
549.

In Texas,
lawsuits against an opposing counsel are discouraged if "based on the fact
that counsel represented an opposing party in a judicial proceeding."
Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398, 405
(Tex. App.--Houston [1st Dist.] 2005, pet. denied) (citing Bradt v.
Sebek, 14 S.W.3d 756, 766 (Tex. App.--Houston [1st Dist.] 2001, pet.
denied)). Of course, an attorney has a duty to "zealously represent his
clients within the bounds of the law." Id. (citing Bradt v.
West, 892 S.W.2d 56, 71-72 (Tex. App.--Houston [1st Dist.] 1994, writ
denied)). In fulfilling his duty, an attorney has "the right to interpose
defenses and pursue legal rights that he deems necessary and proper,
without being subject to liability or damages." Id. "If an
attorney could be held liable to an opposing party for statements made or
actions taken in the course of representing his client, he would be forced
constantly to balance his own potential exposure against his client's best
interest." Id. "Thus, to promote zealous representation, courts
have held that an attorney is 'qualifiedly immune' from civil liability,
with respect to non-clients, for actions taken in connection with
representing a client in litigation."
(3)
Id. "This
qualified immunity generally applies even if conduct is wrongful in the
context of the underlying lawsuit." Id. (citing Renfroe v.
Jones & Assocs., 947 S.W.2d 285, 288 (Tex. App.--Fort Worth 1997,
writ denied)). "Thus, an attorney's conduct, even if frivolous or without
merit, is not independently actionable if the conduct is part of the
discharge of the lawyer's duties in representing his or her client."
Id. at 406. In determining whether an attorney is immune, the
focus is on "the type of conduct, not on whether the conduct was
meritorious in the context of the underlying lawsuit."
(4)
Id.

Here, it is
undisputed that Bosch's claims in the instant lawsuit are based upon
communications and statements made by appellees in the course of
representing Scott in her lawsuit. Appellees sent, on behalf of Scott, a
pre-suit demand letter, and then filed, on behalf of Scott, pleadings.
Appellees are entitled to the protection of a qualified immunity or
privilege for the statements and assertions made in these documents on
behalf of Scott. See Alpert,
178 S.W.3d at 405; Watson v. Kaminski, 51 S.W.3d 825, 827 (Tex.
App.--Houston [1st Dist.] 2001, no pet.). Appellees also
sought, and obtained, a temporary restraining order on behalf of Scott in
the related lawsuit.
(5) Any
statements made in this application were made in the course of judicial
proceedings and, thus, these statements are subject to the defense of
immunity or privilege. See Alpert, 178 S.W.3d at 405. Accordingly, we
hold that the trial court did not err in granting summary judgment in
appellees' favor on all of Bosch's claims.

We overrule
Bosch's second and eighth issues.

Sanctions

In his
third, fourth, fifth, sixth, and seventh issues, Bosch contends that the
trial court erred in finding that he had "improperly attempted to gain
advantage" by filing the instant lawsuit, sanctioning him under rules 13
and 215.2(b), finding that he had filed a groundless and harassing
pleading, and finding that a reasonable attorney's fee or sanction was
$5,000. Bosch asserts that the related lawsuit "did not have any merits"
and Scott had "no right or standing to sue" in the related lawsuit. Bosch
also asserts that the $5,000 sanction is based upon appellees' "limited
papers" of a general denial and a summary judgment motion. Bosch argues
that he did not file the related lawsuit for purposes of harassment
because Scott's "alleged misrepresentations in her affidavit for the TRO
[in the related lawsuit] constitute a wrongful use of the court system and
an abuse of process" and that the evidence showed that appellees' "request
for production from a third party" constituted a "clear interference with
the practice of buyers who would like to preserve secrecy in their
dealings to gain advantage in negotiations during sale."
(6)

We review a trial court's
rule 13 sanction order under an abuse of discretion standard, and we must
determine whether the trial court acted without reference to any guiding
rules and principles. Bradt, 14
S.W.3d at 760-61. The trial court's discretion is limited only by the
requirement that its order be just and that the sanction imposed be
directly related to the harm done by the sanctioned conduct. Id.
at 761.

The
signatures of attorneys or parties "constitute a certificate by them" that
they have read their pleadings, motions, or other papers and, to the best
of their knowledge, information, and belief formed after reasonable
inquiry, "the instrument is not groundless and brought in bad faith or
groundless and brought for the purpose of harassment." Tex. R. Civ. P. 13.
If a trial court imposes sanctions under rule 13, it is authorized to
"impose an appropriate sanction" under rule 215, "upon the person who
signed [the pleading, motion, or other paper], a represented party, or
both." Id. Rule 215 allows a trial court to charge a sanctioned
party with court costs, litigation expenses, and "reasonable expenses,
including attorney fees." Tex. R. Civ. P. 215.2(b)(8). A pleading is
"groundless" when it has "no basis in law or fact and [is] not warranted
by good faith argument for the extension, modification, or reversal of
existing law." Tex. R. Civ. P. 13. A trial court may only impose sanctions
under rule 13 for good cause, "the particulars of which must be stated in
the sanction order." Id.

Here, the
trial court found that Bosch's pleadings in the instant lawsuit were
groundless and brought in bad faith and for the purpose of harassment.
See Tex. R. Civ. P. 13. Bosch's claims in the instant lawsuit
clearly arose from statements made by appellees, in their capacity as the
attorneys for Scott, in her lawsuit, which even Bosch agrees was pending
at the time that Bosch filed the instant lawsuit. By filing the instant
lawsuit, Bosch attempted to raise defensive issues that should have been
asserted in the related lawsuit. For example, Bosch asserted in the
instant lawsuit that statutory provisions deprived Scott from bringing the
related lawsuit.
(7) Bosch
provided no explanation or authority to the trial court or this Court for
his raising of these issues in a separate lawsuit while the related
lawsuit was ongoing. Moreover, Bosch's claims of defamation and his
related claims in the instant lawsuit, as pleaded, are clearly based on
statements made by appellees, on behalf of Scott, that are subject to the
defense of immunity or privilege because these statements were made by
appellees in discharging their duties in the course of
judicial proceedings. We conclude that Bosch's claims in the instant
lawsuit were groundless. See Bradt, 14 S.W.3d at 766 (affirming
trial court's groundless finding and noting that "[a]ppellant had before
him ample precedent to recognize that Texas case law frowns on suing
opposing counsel simply for representing a party in a judicial
proceeding").

The trial
court, in its findings of fact, found that Bosch brought the instant
lawsuit "to gain an advantage" in the related lawsuit and that his claims
were brought in bad faith and for purposes of harassment. The trial
court's findings are supported by the record before us. Bosch, in bringing
the instant lawsuit, sought to raise matters that should have been raised
in the related lawsuit, not in an entirely separate case. In filing the
instant lawsuit, Bosch complained that Scott did not have standing to
pursue her claims. Based upon this assertion, Bosch attempted to sue
Scott's attorneys, and their law firm, without any legal or factual basis.
Moreover, it is undisputed that the related lawsuit was pending at the
time Bosch filed the instant lawsuit. To the extent that Bosch sought
damages for injuries allegedly sustained as a result of the related
lawsuit, all of the statements at issue were made by appellees in the
course of the related lawsuit. The trial court could have reasonably
concluded that the claims brought by Bosch in the instant lawsuit were
frivolous and were brought for the purpose of harassing appellees for
representing Scott in her lawsuit. Bosch has provided this Court with no
valid argument or authority to show that the trial court abused its
discretion in concluding that Bosch's intent was to harass appellees with
his frivolous claims, which certainly resulted in a waste of judicial
resources. See Bradt, 14 S.W.3d at 761.

In regard
to the amount of the sanction, Bosch's only specific assertion is that
appellees filed "limited papers" in the instant lawsuit. Even assuming
that Bosch has presented a complaint regarding the amount of the sanction,
Bosch has not provided us with the record from any sanctions hearing, and
he has not asserted that the trial court failed to conduct a hearing or
provide him proper notice.
(8) It was Bosch's
burden to provide this Court with a record supporting his argument.
Appleton v. Appleton, 76 S.W.3d 78, 87 (Tex. App.--Houston [14th
Dist.] 2002, no pet.). In the absence of a reporter's record, we cannot
determine whether the trial court erred in the amount of sanctions awarded
or whether Bosch preserved any error relating to the amount. Id.
In sum, we hold that the trial court did not abuse its discretion in
imposing sanctions under rule 13.

We overrule
Bosch's third, fourth, fifth, sixth, and seventh issues.

Conclusion

We affirm
the judgment of the trial court.

Terry
Jennings

Justice

Panel
consists of Justices Jennings, Alcala, and Higley.

1. We note that parties
who represent themselves pro se must comply with all applicable laws and
rules of procedure and are held to the same standards as are licensed
attorneys. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184
(Tex. 1978); Kanow v. Brownshadel, 691 S.W.2d 804, 806 (Tex.
App.--Houston [1st Dist.] 1985, no writ).

2. We assume, without
deciding, that Bosch has adequately briefed the issue of the trial court's
granting of summary judgment in favor of appellees on the affirmative
defense of privilege or, as we refer to it, qualified immunity. We
initially note that, contrary to Bosch's contention on appeal, appellees
plainly sought summary judgment on all of Bosch's claims.

3. Although we use the
term "qualified immunity" to describe the appellees' affirmative defense,
we note that our Court, and other courts, also refer to the defense as one
of "privilege." See Watson v. Kaminski, 51 S.W.3d 825, 827 (Tex.
App.--Houston [1st Dist.] 2001, no pet.). For example, in Watson,
we explained that "[a]n attorney's statements made during litigation are
not actionable as defamation, regardless of negligence or malice," and we
described this as an "absolute privilege," which "includes communications
made in contemplation of and preliminary to judicial proceedings."
Id. We noted that "[t]o be privileged, the communication must
relate to pending or proposed litigation and must further the attorney's
representation," and we cautioned that " [a]n absolute privilege does not
extend to an attorney's communications outside of judicial proceedings."
Id. Finally, we explained that "[w]hether a statement relates to
a proposed or existing judicial proceeding is a question of law" and that
a trial court "must consider the entire communication in its context and
must extend the privilege to any statement that bears some relation to an
existing or proposed judicial proceeding." Id.

4. "For example, a
third party has no independent right of recovery against an attorney for
filing motions in a lawsuit, even if frivolous or without merit, although
such conduct is sanctionable or contemptible as enforced by the statutory
or inherent powers of the court." Alpert v. Crain, Caton & James,
P.C., 178 S.W.3d 398, 406 (Tex. App.--Houston [1st Dist.] 2005, pet.
denied). This is "because making motions is conduct an attorney engages in
as part of the discharge of his duties in representing a party in a
lawsuit." Id.

5. We note that Bosch
entered into multiple, subsequent agreements to extend this restraining
order.

6. As we discuss below,
Bosch has not provided this Court with the record from any hearing held on
the sanctions imposed by the trial court. We note that, although Bosch
cites the rule requiring notice and a hearing prior to imposing sanctions,
Bosch does not raise an issue concerning any alleged lack of notice or a
hearing. To the extent he has attempted to raise such an issue, we hold
that he has inadequately briefed it. See Tex. R. App. P. 38.1(h).

7. In his reply brief,
Bosch states that he brought the instant lawsuit to stop the "filing of an
unlawful lawsuit," but he offers no explanation as to whether he raised
these issues in the related lawsuit and, if not, why he did not raise
these issues.

8. It appears from
Bosch's briefing that there was a hearing conducted on the issue of
sanctions. For example, in his brief, Bosch refers to a $250 hourly rate
for attorney's fees that may have been considered by the trial court, and,
in his reply brief, Bosch states that the trial court set the sanctions
hearing.