Divorce/photo courtesy of Shutterstock Divorce/photo courtesy of Shutterstock

A Texas court of appeals has denied a Dallas attorney’s attempt to reopen a couple’s divorce case to collect his fees, and affirmed sanctions imposed against him for pursuing what the court said was a groundless matter brought in bad faith and for the purpose of harassment.

The case, Wyde and Associates v. Francesconi, focuses on the actions of lawyer Dan Wyde, who represented Tatianna Francesconi in her divorce from her husband, James E. Francesconi, in a Collin County state district court, according to the decision.

After a nonjury trial, the trial court rendered a decree of divorce in November 2015 that provided that the husband “shall pay 50% of [the wife’s] attorney’s fees” and awarded a judgment against the husband, but left blank the amount of the judgment. The judgment also noted that the decision was final, disposed of all claims, and was appealable.

The judgment was not appealed by the husband, wife or Wyde within the applicable time period under the Texas Rules of Appellate Procedure. In January 2016, according to the decision, the husband and wife both signed a written agreement waiving rights to a new trial or an appeal, and noted that the husband is responsible for half the debt owed to Wyde, which totals $40,000.

Later in January 2016, Wyde filed a petition for writ of mandamus before Dallas’ Fifth Court of Appeals, requesting it order the trial court to conduct a hearing on the amount of attorney fees to be awarded to him. The Fifth Court denied Wyde’s petition in February 2016, concluding he had not demonstrated he was entitled to relief.

In April 2016, Wyde filed a notice of appeal of the November 2015 divorce decree, but the Fifth Court dismissed it for lack of jurisdiction because it was filed too late to meet appellate deadlines.

In March 2017, Wyde attempted to enforce the provisions of the divorce decree and obtained a court order requiring the husband to appear at a hearing on a motion to enforce. The husband objected to the hearing by asserting that Wyde lacked power to enforce the decree and was barred by the doctrine of res judicata, among other things. The husband also sought sanctions and attorney fees against Wyde, alleging that his motion was frivolous, groundless, lacked a legal basis, and was filed for the purpose of harassment.

The trial court held a hearing in April 2017 in which the husband, a neurologist, testified—an appearance that required him to have other doctors cover his rounds at three different hospitals, leading to $2,700 in lost wages, he claimed. The trial court found that Wyde’s motion to enforce the decree was filed in bad faith, explaining that the matter had been litigated several times before. The trial court also ruled that Wyde had caused the husband to appear in court “frivolously, in bad faith, and for the purpose[] of harassment.” The court awarded the husband a $1,350 judgment against Wyde and awarded the husband’s attorneys $7,000 in fees.

Wyde appealed the decision to the Fifth Court.

In its recent decision, the Fifth Court again denied Wyde relief, writing that he had no standing to enforce the divorce decree under Chapter 9 of the Texas Family Code. To reach that conclusion, the court cited Brown v. Fullenweider, a 2001 Texas Supreme Court ruling that an attorney fee claim is not an issue related to the division of a marital estate.

“Here, as in Brown, Wyde’s claim for attorney’s fees is not related to the division of husband’s and wife’s marital estate. And as in Brown, Wyde’s motion ‘was filed long after the trial court’s plenary jurisdiction was over’ and the divorce case had terminated,” wrote Justice Elizabeth Lang-Miers.

The Fifth Court also concluded that the trial court did not abuse its discretion in imposing sanctions on Wyde. The court noted Wyde’s primary purpose to enforce the decree in an effort to correct it, “but the record also reflects that (1) Wyde did not timely seek available relief, such as a motion for new trial or a timely appeal of the trial court’s judgment; (2) the trial court denied Wyde’s previous motions to recover the same fees; and (3) Wyde unsuccessfully sought mandamus arising out of the same alleged errors.”

Wyde will appeal the decision according to a statement released by his law firm.

“The 5th COA memorandum opinion is directly inopposite of controlling Tex. Supreme Court precedent. A motion for rehearing and a motion for en banc consideration will be timely filed. Thereafter, if necessary, a petition for discretionary review will be filed at the Tex. Supreme Court,” according to the statement.

Michael Wysocki, a partner in Dallas’ O’Neil Wysocki who represented the husband on appeal, is pleased with the Fifth Court’s decision.

“I think they’re spot on and they were spot on in oral argument,” Wysocki said of the decision. “They knew what the score was coming in.’’