Jones-Hospod v. Hospod

676 S.W.3d 709

Kathy JONES-HOSPOD, Appellant,

v.Stanley HOSPOD, Appellee.

No. 08-22-00066-CV

Court of Appeals of Texas, El Paso.

July 17, 2023

Kathy L. Jones-Hospod, Pro Se.

Nikki G. Maples, Scott V. Kidd, Scott R. Kidd, Austin, Meagan Jones, for Appellee.

Before Rodriguez, C.J., Soto, J., and Ferguson, Judge, Ferguson, Judge (sitting by assignment)

OPINION

ROY B. FERGUSON, Judge (sitting by assignment)

Kathy Jones-Hospod, Appellant, appeals the Final Decree of Divorce dissolving her marriage to Stanley Hospod, Appellee, entered after a bench trial. We find no error in the trial court's discovery sanctions or the denial of Kathy's motion to disqualify Stanley's trial counsel. We likewise find no harmful error in the division of the marital estate. We affirm, except as to the award of conditional appellate attorney's fees, which we reverse and remand for a new trial solely on that issue.

BACKGROUND

Kathy Jones-Hospod filed for divorce from Stanley Hospod in 2019, after sixteen months of marriage. In her Original Petition, Kathy alleged that Stanley was "guilty of cruel treatment towards" her and that he "committed fraud on the community estate." She also requested that the trial court reconstitute the community estate to its full value, award her a disproportionate share, and confirm her separate property. Stanley filed a general denial of Kathy's claims and a counterpetition for divorce.

A. Motion to disqualify

Kathy tried repeatedly to disqualify Stanley's chosen counsel, Nikki G. Maples. The first such effort began two months after Stanley filed his general denial when Kathy filed a motion to disqualify Maples, claiming she had a previous attorney-client relationship with Kathy. Kathy claimed that in the summer of 2018 she "disclosed to Maples ... confidential, private and non-public information regarding [herself], her legal cases, [and] her relationship with her husband" in connection with Maples representing her in a pending guardianship case. Kathy claimed that she and Maples had a "three-hour attorney-client meeting" for which Maples charged her $600. Kathy submitted a sworn affidavit in support of her motion to disqualify Maples, which the trial court struck as inadmissible hearsay.

Kathy did not appear at the hearing on her motion. Maples appeared and testified that she communicated with Kathy in 2018 about a guardianship matter. Maples met with Kathy for approximately two hours during which she reviewed several public pleadings and a confidential summary of the guardianship case that Kathy prepared. Maples declined representation because she does not practice guardianship or probate law and referred Kathy to several other attorneys. She also denied that she retained any of Kathy's documents or that they discussed Kathy's marriage with Stanley.

The trial court denied the motion to disqualify in open court, reasoning that Kathy failed to meet her burden of proving "the existence of a substantial relationship between" Maples's prior representation of Kathy and the present litigation or "a genuine threat of revelation" of prior confidential information. It subsequently issued a written order on October 18, 2019, denying the motion to disqualify and awarding Stanley $5,615 in attorney's fees.

Kathy's next attempt to disqualify Maples occurred almost two years later when, on July 26, 2021, Kathy filed a motion to reconsider her motion to disqualify Maples based on alleged changed circumstances. In this motion, Kathy claimed that Stanley's Second-Amended Counterpetition for Divorce—which was filed more than a year prior—showed that Maples had a conflict of interest. Specifically, Kathy alleged that Stanley's request for a disproportionate share of the community estate showed Maples's representation of Stanley was substantially related to the guardianship case that Kathy had discussed with Maples. She did not, however, explain how Stanley's request for a disproportionate share of the estate made the two matters substantially related.

Kathy also argued that two requests for production served on her by Stanley proved that Maples should be disqualified. Specifically, she claimed the request asking for documentation related to "any lawsuits ... or other litigation" she has been a party to and the request asking for documents pertaining "to any criminal charges, investigations, allegations, complaints, and convictions" demonstrated the "substantial relationship" requirement between the guardianship case and the parties’ divorce. Again, however, Kathy did not provide any explanation for why the discovery requests made the two cases "substantially related." There is no indication in the record that Kathy asked the trial court to consider or rule on her motion to reconsider.¹

In her final attempt to disqualify Maples, Kathy challenged the trial court's denial of her motion to disqualify Maples in her motion for a new trial, which was denied by operation of law. See TEX. R. CIV. P. 329b(c).

B. Discovery and sanctions

After Kathy's motion to disqualify was denied, Maples on Stanley's behalf served Kathy with requests for production and inspection of documents, interrogatories, and requests for disclosure. Kathy did not provide substantive responses to any of these discovery requests. Instead, she leveled several objections, including an objection "to violations of the attorney-client privilege to her former counsel, Nikki G. Maples, her employee, Megan Jones, and the Law Office of Nikki G. Maples, PLLC, propounding any discovery ... to her former client, [Kathy]." Stanley filed a motion to compel. After a hearing, the trial court overruled Kathy's objections and ordered her to respond to the discovery requests. The court also awarded Stanley $5,200 in attorney's fees pursuant to Texas Rule of Civil Procedure 215.

Despite the court's order, Kathy again failed to respond to Stanley's discovery requests, and Stanley filed a motion for sanctions pursuant to Rule 215. After a hearing on the motion, the court sanctioned Kathy for failing to comply with its orders and enjoined her from introducing evidence that was not produced to Stanley for the purpose of supporting her claims, defending against Stanley's claims, or controverting Stanley's evidence. The court warned Kathy that if she did not comply with its discovery orders, her jury demand and parts of her petition would be stricken. The trial court then awarded Stanley $19,152.49 in attorney's fees.

Yet again, despite the court's stern warning, Kathy chose not to respond to Stanley's discovery requests, and Stanley filed a Motion for Further Sanctions. At the hearing on this motion, Kathy's attorney declared that Kathy was not required to respond to discovery requests propounded by Maples because doing so would force her to "give up her constitutional rights to attorney-client confidentiality[.]" She stated the only way Kathy would respond to discovery is if it was "not propounded by her former lawyer[.]"

The trial court subsequently issued an order outlining the various orders Kathy had violated. The court noted that it had "imposed less severe sanctions" on Kathy that "have not been sufficient to promote compliance." It then struck Kathy's pleadings, including her demand for a jury trial, as a sanction. The court also struck a portion of Kathy's Original Petition for Divorce, including her allegation of cruel treatment and her requests for a disproportionate share of the community estate and confirmation of her separate property. Additionally, the court awarded Stanley $8,718.50 in additional attorney's fees.

C. Trial

The trial court held a final hearing to the bench in late December 2021. Kathy did not attend but was represented by counsel of record who offered no evidence but did conduct cross examinations of Stanley's witnesses. At the final hearing, Stanley offered his opinion of the value of the parties’ assets and the marital estate as a whole through an exhibit with a proposed property division of the marital estate. Stanley testified that he helped his attorneys prepare the exhibit and that to the best of his knowledge the values shown on the exhibit were true and accurate.

Stanley testified that Kathy owned real property located at 208 Prize Oaks Drive, Cedar Park, Texas, prior to marriage. The trial court, over objections from Kathy's counsel, nevertheless declined to recognize the property as Kathy's separate property because Kathy's claim for separate property in her Original Petition for Divorce had been struck as a sanction for her discovery misconduct and the property was therefore presumed community in nature.

In its Final Decree of Divorce, the court divided the marital estate as requested in Stanley's proposed property division, awarding the 208 Prize Oaks property to Kathy as part of the division of the community estate. The decree also awarded Stanley $20,000 for appellate attorney's fees against Kathy "conditioned on her pursuit of an untimely or unsuccessful appeal."

Kathy filed a motion for new trial that was overruled by operation of law. See TEX. R. CIV. P. 329b(c). This appeal followed.

ANALYSIS

Kathy presents the following nine issues:

1. Whether the trial court erred when it denied Kathy's motion to disqualify Maples.

2. Whether the trial court violated the Texas Supreme Court's decision in Medina v. Zuniga , 593 S.W.3d 238 (Tex. 2019) when it required Kathy to choose between "waiving" her rights to assert an attorney-client privilege or being sanctioned under Texas Rule of Civil Procedure 215.

3. Whether the trial court erred when it struck Kathy's jury demand as a discovery sanction.

4. Whether the trial court erred in granting a "default judgment" against Kathy.

5. Whether the trial court erred by applying a "death penalty" sanction against Kathy.

6. Whether the trial court erred by dividing the parties’ estate without a complete picture of their community property.

7. Whether the trial court erred in awarding attorney's fees against Kathy.

8. Whether the trial

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