A zealous pursuit of mediocrity between moveable goal posts


Texas’ 11th District Court of Appeals at Eastland affirmed Rule 13

Midland, TX – Rule 13 of the Texas Rules of Civil Procedure is a whole lot like the law of the jungle, and the way the cookie crumble; that is, he who has the gold makes the rules, and it’s good to be king.

The truth is, there is no more autocratic and – ah, baronial – source of power and authority than a seated Judge in a Texas trial court of original jurisdiction, the highest venue in which verdicts are returned and judgments rendered based solely upon evidence and testimony elicited at trial. All higher courts rely upon an examination of the record; no additional evidence or testimony is introduced above the level of the trial court of original jurisdiction.

In Texas, that is the District Court, an elective position of much power, but even more influence.

Case in point, a $17,670.50 sanction the judge imposed upon Cynthia Clack and her co-counsel over a remark in a footnote they filed in a Motion for Judgment to Conform with the Jury Verdict in the 318th District Court at Midland.

It is only in its complications that FM-47,213, a civil action “In the Interest of J.R.W., a Minor Child,” bears any interest to the outer world. The questions addressed in the jury trial were those of an unhappy family torn asunder by a custody dispute, a relationship destroyed by a question in which a father and mother were unable to agree as to just how to proceed with the treatment of an undiagnosed illness involving an orthopedic disease with which their son suffered.

The father, a successful millionaire, an oil operator; the mother, a former employee he impregnated in an office romance that just didn’t work out.

In those respects, the questions the jurors were asked to settle were straightforward; the family law to be applied by Judge Dean Rucker was very clear. Ms. Clack of Odessa, who represented the mother, and the opposing counsel, David McClure of El Paso, who represented the father, are both old hands at this type of litigation.

But no job is complete until the paperwork is finished.

Jurors granted the mother sole managing conservatorship “in the interest of the child,” and awarded her $320,000 in “reasonable and necessary attorney’s fees” with a provision of a cap of $150,000 for any appeal and $50,000 for a review by the Texas Supreme Court.

When Cynthia Clack entered a motion for entry of a final order on June 17, 2011, it “lingered without a response” until mid-fall, when a ruling from the Court hit like a burst of thunder and lightning – at the end of September.

During the delay, according to Ms. Clack’s pleadings, she kept a weather eye on conditions she considered unusual due to the extended period of the Court’s deliberations on the final order.

To be sure, there were signs that something could have been a quarter bubble off plumb, but she dismissed them in favor of patience, prudence, and the doctrine of Silence Do-Good and Constance Makepeace. She readily admits that in conversation.

On August 1, she attended a professional gathering at San Antonio, and while having dinner at a Riverwalk cafe, she saw Judge Rucker and McClure make a grand entrance with a large party of people. They were seated at a table reserved for them, directly next to hers.

As noted in her pleadings, there is nothing improper about friendship between certain attorneys and judges, but it is unusual for them to dine together while matters pend before the Court – and this occasion was not a banquet that was part of the professional gathering.

On August 12, McClure filed a Motion for Hearing and Final Orders on Non-Jury Issues, an instrument which, according to Clack, “did not respond to the mother’s pending Motion for Entry of Final Order, nor did it acknowledge that the issues it sought the Court to address had already been decided by the jury.”

Two other occurrences she considered odd took place the following month. On September 28, the father voluntarily paid a very large sum to settle medical fees in his son’s case. The pending judgment stipulated otherwise, that the medical expenses of the son were to be split half and half between the parties to the litigation.

When the mother received a text message from the father’s office manager a day later, it foretold an occurrence of dire portent.

We will see next week when rucker rules. He and mcclure r up to something. U r still the better parent. U hv been and will be.

Five days later, Rucker ruled to strip the mother of the exclusive rights and attorney’s fees awarded by the jury.

In his letter, the Court further ruled that:

1. the minor child should reside in Midland County, as requested by the father;

2. ordered the father would decide which doctor would be the primary care physician;

3. that all decisions about the child’s education would be made jointly;

4. overrode the jury’s award of attorney’s fees and ordered both to pay their own;

5. and ordered the father to pay 100% of medical expenses.

Clack noted that meant the “inexplicable generosity of six days earlier was now highly suspicious.”

She made it clear to the Court that “the ruling could not be explained by the law or the evidence.”

Here’s what she learned from the experience. “On that jury, we had a criminologist with a doctorate; we had an R.N. Those people spent two weeks of their lives hearing the evidence. They answered their instructions, and then the judge totally disregarded what they had done during those two weeks of their lives.”

The judge asked the jurors how much they would consider reasonable and necessary attorneys’ fees. They answered by choosing the figure of $320,000, and “Then the judge said no. I don’t think so. He took it away.”

Where before, the father, the successful independent oil operator would have paid the legal fees, he had gained an exemption, leaving his former companion, a single mother with an ailing child, to pay the bill she could never afford to pay.

In a Motion for Judgment to Conform With the Jury Verdict, Clack “emphasized that the Court had improperly weighed the evidence and had issued rulings that could not be squared with the verdict or the statutes.”

In a footnote, she aired a deeper concern. “Further, this rises to the level of trickery on the part of the Court and smacks of collusion between counsel for (the father) and the Court.”

Three days later, the Court withdrew its October 4 letter ruling. Despite the conciliatory tone, the order did not restore the jury’s award of $320,000 in attorney’s fees. Each party would be required to pay their own legal expenses.

Judge Rucker referred out a motion for sanctions. Because he is the presiding Administrative Judge for the region, he had another judge assign 237th District Court Judge Les Hatch of Lubbock to hear the motion.

RULE 13, TEXAS RULES OF CIVIL PROCEDURE addresses the effect of signing pleadings before the Court. It decrees they should be made in good faith and based upon solid grounds. According to an expert blogger with subject matter expertise on Family Law, “A groundless pleading is not sanctionable unless it is also brought in bad faith or for the purpose of harassment…Bad faith does not exist when a party exercises bad judgment or negligence. Rather, bad faith means ‘the conscious doing of a wrong for dishonest, discriminatory, or malicious purposes.’”

According to a holding of a Texas appeals court, that is to be determined by a “litigant’s conduct at the time the relevant pleading was signed.” – Texas – Ohio Gas, Inc. v. Mecom, 28 S.W. 3D, 129, 139 (Tex App. – Texarkana, no pet.)

The hearing was fully freighted with all the comic relief one may expect when the fur flies over the slightest hint of impropriety of the dealings between an aggressive barrister and the Court.

At one point, McClure had issued a subpoena for Judge Rucker to appear on the witness stand. An attorney assigned by the State of Texas sought to quash the subpoena, but McClure wasn’t having it.

As the issue became heated, McClure made comments to the effect that he needed to clear up any questions regarding his reputation and the reputation of the judge.

This is the first time I’ve ever had a situation where the party alleging that the judge did nothing wrong is the one seeking to subpoena him. Normally it’s the other way around,” said attorney, who had been assigned to look after the judge’s rights. “But it’s my understanding that Ms. Clack has no real objection to my motion (to quash) and my only problem is Mr. McClure.”

Judge Hatch sustained the motion to quash. He excused Judge Rucker.

In the end, he ruled::

  1. Clack should pay $17,670.50 to Larry Wollschlager as “reimbursement for his attorney’s fees and costs in prosecuting his Motion for Sanctions within 60 days;
  2. made a finding of good cause in support of sanctions imposed under Rule 13, that the footnote stating the order Rucker withdrew “rises to the level of trickery on the part of the Court and smacks of collusion between counsel for Larry Wollschlager and the Court.” He ruled that the allegation was “groundless and made in bad faith.” He further ruled that Clack’s co-counsel Claudia Donaldson be included in the sanction because she signed the motion;
  3. and he further ruled that Judge Rucker should not have submitted, over objection, a question on residence restriction in connection with the appointment of a sole managing conservator, had one been requested.

No one objected at the time the jurors were instructed. Hatch noted that instead of voicing her suspicion in a footnote, Ms. Clack should have instituted grievance procedures in the appropriate venue under the rules governing judicial conduct.

“This is the judge,” says Ms. Clack, “who put me in a position where I have to go file a grievance against the judge who has continuing jurisdiction in this matter. That is a very harsh instruction.”

On appeal, the 11th District Court of Appeals at Eastland affirmed Judge Hatch’s order in a memo opinion on May 15, 2014; the Texas Supreme Court denied a review of the case on August 8, 2014.

If you ask Cynthia Clack, “What have you learned from all this?” she will say, “I will file a grievance against every lawyer and judge against whom I have some evidence of trickery and collusion.”

Though Judge Dean Rucker is no longer the judge of the 318th District Court; he now presides over the Seventh Administrative Judicial Region. He makes assignments of visiting judges, appoints Attorneys ad litem, Masters at Chancery – and other administrative tasks as they arise.

He is the judge who stripped a Midland man of his right to keep and bear arms for life. Buddy Wayne Webb was shot in the foot at the rear door of his residence in a melee he has never understood, that went without proper investigation, and he has been repeatedly referred to in police documents as a “paranoid schizophrenic” when, in fact, there is no such diagnosis.

He’s that Judge Dean Rucker, yes. His judgment is pending in an appeal before the 11 District Court of Appeals at this time.

That puts Judge Dean Rucker in what any ornery old west Texas outfit would call the Catbird Seat.

From where The Legendary sits, he’s welcome to it.

So mote it be.

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Judge Dean Rucker, formerly of the 318th Judicial Dist. Court, presently Presiding Judge of he Seventh Judicial Region of Texas

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