'We're just mean people' excuse fails to persuade Texas court on sanctions

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A Texas appeals court has rejected a lawyer’s argument that his colleague can’t be sanctioned for “aggressive and even unkind” comments if there was no interference with justice and “we’re just mean people.”

The Texas Sixth Court of Appeals sanctioned lawyer Nicholas Mosser $3,600 for “many disrespectful statements” about judges that have no basis in fact.

Law360 and have coverage of the court’s Nov. 16 sanctions order.

Mosser didn’t appear during the Oct. 31 show-cause hearing before the appeals court. His colleague at Mosser Law in Plano, Texas, presented arguments for him.

Mosser’s dispute with Texas judges began during an appeal on behalf of a client who was cited for keeping junk, vehicles and other unsightly items on his property, the appeals court said. Mosser claimed that the court reporter’s record had an omission. The appeals court directed the trial judge to take evidence and enter findings about the missing information.

After the trial judge’s first emergency hearing, Mosser sought his recusal on the ground that the judge “interjected himself into the facts of this case” by calling himself as a witness and testifying about his recollection of events and by questioning witnesses “based on his ex parte investigations.” A presiding judge denied a motion to recuse.

After a second hearing, the trial judge concluded that there was no error or omission that was significant or that would affect resolution of the appeal. The appeals court adopted those findings.

Mosser complained in a motion that the appeals court “accepts false statements of fact as conclusive.” When Mosser filed another motion, it was rejected for failure to pay a filing fee. When the clerk’s office explained what happened, “Mosser responded in an unprofessional and disrespectful manner towards our clerk and deputy clerks through a series of telephone calls, emails and letters,” the appeals court said.

The disrespectful behavior included a suggestion that someone from the court’s offices caused a ransomware attack by watching porn on a state computer, according to the appeals court.

The appeals court told Mosser to stop such conduct, but he didn’t heed the warning, the appeals court said.

In court filings, Mosser alleged that the trial judge committed “atrocities,” had been “masquerading as a judge,” had become “personally invested in the creation of a record,” and had conducted an ex parte investigation. He also alleged that the trial judge changed testimony, suborned perjury and manipulated trial exhibits. And Mosser said the appeals court was making “spurious” attacks on him.

After the appeals court issued an order to show cause, Mosser responded in court filings. Among his arguments: His statements didn’t threaten the administration of justice, his speech was protected by the First Amendment, his statements were factual, and the appeals judges should have recused themselves.

The appeals court disagreed, however. Some allegations were “devoid of any factual basis,” and others were the result of playing “fast and loose with his interpretation of the record,” the appeals court said.

The appeals court found particularly egregious those statements that accused the judge of criminal conduct without factual basis.

The court concluded that Mosser’s comments raise a substantial question about his honesty, trustworthiness or fitness as a lawyer and said its opinion should be forwarded to the general counsel of the State Bar of Texas.

The lawyer who appeared for Mosser at the show-cause hearing was James C. Mosser, a colleague in his law firm who was identified as Nicholas Mosser’s father in a different sanctions opinion in March 2018. The sanction was for “strikingly similar” conduct by Nicholas Mosser, the Texas appeals court said in its previous warning.

James Mosser told Law360 that he plans to appeal. He also told that there is a pending judicial misconduct complaint filed against the appeals justices, and “there may be a supplement to that complaint with the current order and the recent changes made to the docket sheet, which suddenly has new documents appearing on it that were not present on when the appendix was originally filed.”

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