Steve Korris Feb. 11, 2009, 5:39am
Attorney John Osborne of Houston improperly sued two women who beat his clients at tennis, Ninth District appeals judges in Beaumont ruled on Feb. 5.
Osborne lacked evidence to support a defamation suit he filed against match winners Roxane Guest and Leslie Weldy in Montgomery County, the judges agreed.
They held that Guest and Weldy could recover legal defense fees not only from match losers Victoria Hall and Holli Roffey, but also from Osborne.
The judges affirmed District Judge Suzanne Stovall, who found that Osborne and his clients sued "to harass, embarrass, and cause needless and unnecessary expense."
Evidence supported Stovall's conclusion that Osborne and his clients sued for malicious purposes, Justice Hollis Horton wrote. Chief Justice Steve McKeithen and Justice David Gaultney agreed.
All four women competed in the North Country Women's Tennis League. In a doubles match that turned bitter, Hall and Roffey decided to forfeit.
Still sizzling, they whacked a few balls into fences around the court.
Peggy Payne and Kay Rice, team supervisors for Guest and Weldy, filed charges with league officials. They claimed Hall and Roffey meant to hit Guest and Weldy with balls.
League board members suspended Hall and Roffey for eight months Weldy had broken rules too, and the board placed her on probation.
Hall and Roffey sued Guest, Weldy, Payne and Rice for defamation. Hall and Roffey alleged the others lodged disparaging and untrue accusations with the league.
Within three months, Hall and Roffey dismissed claims against Payne and Rice.
Guest counterclaimed, seeking sanctions from Hall and Roffey. She alleged that their suit was baseless and without merit.
Guest moved for summary judgment. She argued that her statements could not constitute slander and that Hall and Roffey could not prove defamation.
Hall and Roffey didn't respond to the motion. A day before a hearing on it, they nonsuited their claims against Guest and Weldy.
The following week, Guest notified Osborne that Judge Stovall would hear her counterclaim and motion for sanctions.
Guest filed a brief that for the first time sought sanctions against Osborne. She claimed the suit was frivolous, groundless, and brought
for purposes of harassment.
Osborne answered that Stovall lacked jurisdiction because the
counterclaim was not a motion and because his clients voluntarily
dropped the suit.
He attached his own affidavit, swearing Hall and Roffey told him they hit balls into the fences. He swore they said Guest and Weldy falsely accused them of trying to hit them.
Stovall signed a nonsuit order and held a hearing on sanctions four days later.
Five witnesses testified, but only Guest described the match.
She swore that she didn't file the complaint against Hall and Roffey and that she made no statement to the league about the match.
She swore she never made a false statement about Hall or Roffey to anyone.
Stovall granted summary judgment. She wrote that Hall, Roffey and Osborne did not conduct any investigation into facts they alleged before asserting them in court.
Guest did not communicate with the board prior to the disciplinary action, she wrote, so Guest couldn't have made any false or defamatory statements to the board.
If Osborne had investigated the claims by communicating with Guest's attorneys, she wrote, the lawsuit could have been avoided.
Ninth District judges agreed with Stovall.
"We find no error in the trial court's treatment of the counterclaim as a motion for sanctions and find no error in the trial court's
exercise of jurisdiction over the attorney and his law offices," Horton wrote.
"Guest's counterclaim clearly sought to invoke the trial court'sauthority to enter sanctions," he wrote.
Under Texas rules of civil procedure, he wrote, dismissal by nonsuit has no effect on any pending motion for sanctions, attorney fees or other costs.
Jason Bernhardt represented Guest and Weldy. David Ghisalbert represented Hall, Roffey and Osborne.