Barbara Jean Forte v. Joseph Wesley Forte ( 2009 )

Reversed and Remanded and Memorandum Opinion filed August 18, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-08-00179-CV

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BARBARA JEAN FORTE, Appellant

V.

JOSEPH WESLEY FORTE, Appellee

On Appeal from the 328th District Court

Fort Bend County, Texas

Trial Court Cause No. 02-CV-124959

M E M O R A N D U M   O P I N I O N

This is an appeal from an order imposing sanctions under Rule 13 of the Texas Rules of Civil Procedure against appellant, Barbara Jean Forte=s, attorney, Ayesha Mutope-Johnson. Because we agree the trial court abused its discretion when it sanctioned Mutope-Johnson, we reverse and remand.

Factual and Procedural Background

This appeal arises out of a divorce proceeding originally filed by appellee, Joseph Wesley Forte, on July 3, 2002. Both parties to the divorce action were represented by a succession of attorneys and the case proceeded at a glacial pace.  On February 15, 2005, the trial court entered temporary orders that enjoined both appellee and appellant from selling any property and also prevented appellee from Aexcluding [appellant] from the use and enjoyment of the residence located at 107 Squires Bend, Stafford, TX 77477.@

Apparently frustrated with the pace of the proceedings, appellee took actions which led appellant to believe appellee was preparing to sell the Squires Bend residence in violation of the trial court=s temporary orders.  This led to a period of intense activity by appellant=s attorney aimed at preventing what appellant believed was the imminent sale of the residence. Included in this flurry of activity was a AMotion for Enforcement by Contempt and for Sanctions and Order to Appear@ filed by appellant against appellee on October 5, 2005.  Appellee finally filed a response and a counter-motion for sanctions pursuant to Rule 13 of the Texas Rules of Civil Procedure on May 14, 2007.  The trial court held a hearing on October 23, 2007.  At the end of the hearing, the trial court announced it was denying appellant=s motion for contempt and for sanctions and was granting appellee=s motion for sanctions and sanctioned Mutope-Johnson $750.00.  Soon thereafter, the trial court entered a written order to that effect.^[1] This appeal followed.

Discussion

In a single issue on appeal, appellant contends the sanctions order does not meet the requirements of Rule 13 as the trial court did not (1) determine good cause existed for sanctioning Mutope-Johnson; and (2) did not state the particulars of the sanctionable conduct.

A.      Does the Sanctions Order Meet the Specificity Requirement?

Whether to impose Rule 13 sanctions is within the trial court=s sound discretion.  Mattly v. Spiegel, Inc., 19 S.W.3d 890, 895 (Tex. App.CHouston [14th Dist.] 2000, no pet.), overruling on other grounds recognized by In re J.R., 123 S.W.3d 669, 672 n.6 (Tex. App.CHouston [14th Dist.] 2003, no pet.).  We will not set aside a Rule 13 sanctions order unless an abuse of discretion is shown.  Id.  However, while a decision to impose Rule 13 sanctions is within the discretion of a trial court, Rule 13 imposes a mandatory duty on the part of the trial court to point out with particularity the acts or omissions on which the sanctions are based.  Id. A primary purpose of the particularity requirement is to justify the imposition of sanctions and to show that the trial court properly weighed the sanctions request and imposed sanctions in an appropriate manner when justified by the circumstances.  Id. at 896.

The sanctions order at issue here does not contain any facts justifying the imposition of sanctions against Mutope-Johnson.  Therefore, the sanctions order does not comply with Rule 13 and constitutes an abuse of discretion that renders the order unenforceable and requires that it be reversed.  Id.  We sustain appellant=s single issue on appeal.

Conclusion

Accordingly, we reverse the trial court=s sanctions order and remand for further proceedings in accordance with this opinion.

/s/      John S. Anderson

Justice

Panel consists of Justices Anderson, Guzman, and Boyce.

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^[1]  The relevant part of the order provides:

The Court then heard and considered JOSEPH WESLEY FORTE=s request for sanctions and being of the opinion that the request should be granted;

It is, therefore, ORDERED, ADJUDGED and DECREED that Ayesha G. Mutope-Johnson, attorney-at-law, the attorney of record in this cause for BARBARA JEAN FORTE, shall pay $750.00 to Andrew L. Jefferson, Jr., counsel for JOSEPH WESLEY FORTE, as a monetary sanction for a violation of Rule 13, Texas Rules of Civil Procedure.  Ms. Mutope-Johnson shall pay the $750.00 sanction to Andrew L. Jefferson, Jr., no later than 30 days following the date on which this order is signed by the Court.  This monetary award shall earn interest at the highest legal rate if it is not paid within 30 days after this order is signed by the Court.