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 2005-08

in the Interest of K.A.R. , 171 S.W.3d 705 ( 2005 )


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  • Affirmed as Modified and Majority and Dissenting Opinions filed August 30, 2005

    Affirmed as Modified and Majority and Dissenting Opinions filed August 30, 2005.

     

     

    In The

     

    Fourteenth Court of Appeals

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    NO. 14-03-00970-CV

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    IN THE INTEREST OF K.A.R.

     

    ______________________________________________________________________

     

    On Appeal from County Court at Law No. 2

    Galveston County, Texas

    Trial Court Cause No. 02FD1637

    ______________________________________________________________________

     

    M A J O R I T Y   O P I N I O N

    This appeal arises out of a post-divorce dispute between former spouses concerning their minor child.  The ex-husband, who initially sued for modification of the divorce decree, ultimately non-suited his claims, but not before the ex-wife filed a counter-petition for modification and a motion for sanctions against both her ex-husband and his trial counsel.  The trial court granted the ex-wife the relief she sought in her counter-petition as well as $13,000 in attorney=s fees and expenses as a sanction against the ex-husband and his counsel. We hold that the trial court erred in awarding attorney=s fees and expenses as child support and in awarding appellate fees not conditioned on the ex-wife=s success on appeal.  Therefore, we modify the trial court=s judgment to delete the award of fees and expenses as child support and to make the award of appellate fees conditional on the ex-wife=s success on appeal.  As modified, we affirm the trial court=s judgment.

    I.  Factual and Procedural Background

    In 1993, Kenneth L. Richardson[1] and appellee Lisa Richardson were divorced. The divorce decree appointed Lisa as sole managing conservator of their minor son, K.A.R., and Kenneth as possessory conservator of K.A.R.  The decree ordered Kenneth to attend regular counseling sessions conducted by Jose Cardena. In 2002, after K.A.R. expressed an interest in living with his father, Kenneth filed a petition to modify the divorce decree to make Kenneth a joint managing conservator and to give him the exclusive right to determine the primary residence of K.A.R.  The trial court signed temporary orders denying Kenneth=s request for temporary modification of conservatorship, ordering a psychological evaluation of Kenneth, Lisa, and K.A.R by Dr. Ferrell, and ordering them to participate in counseling with Dr. Micheletti.

    During a therapy session with Dr. Micheletti on March 20, 2003, Kenneth indicated that he was considering dismissing his petition to modify. Learning of this possibility through the therapy session, Lisa promptly notified her lawyer, Edwin J. Terry, Jr., of this development.  On Monday, March 24, 2003, Lisa=s lawyer called Kenneth=s lawyer, appellant H. Lynne Clarke, to discuss Kenneth=s position and to seek to avoid unnecessary fees and expenses.  Clarke told Terry that she believed Kenneth was interested in settling the case, but that she had not spoken to him.  According to Terry, Clarke stated she would call him back on March 25, 2003.  Though Clarke may not have spoken to Kenneth as of March 24, she had received on March 20, a letter faxed by Kenneth, stating that he wished to drop his case against Lisa and requesting that Aall parties involved immediately cease and desist all actions.@  Clarke did not inform Terry of this communication from Kenneth until April 1. Clarke did not call Terry back until 4:30 p.m. on Thursday, March 27, 2003, when she informed a legal assistant at Terry=s office that Clarke still had not spoken to Kenneth, that Clarke would be out of her office the next day, and that she did not expect to speak to her client until the mediation scheduled for the following Monday, March 31.  Clarke was told that Terry, whose office was in Austin, was out of town and that he would be traveling to Houston for the Monday mediation.  Clarke told Terry=s legal assistant she planned on working out a settlement at the mediation on Monday. 

    Lisa=s Counter-Petition

    On Friday, March 28, Lisa filed a counter-petition to modify in which she requested the court to modify the divorce decree to add as a condition for Kenneth=s access to and possession of K.A.R. that Kenneth continue participating in family counseling with Dr. Micheletti.  In her motion-for-new-trial affidavit Clarke testifies to the following, among other things:

    !         Clarke finally contacted Kenneth by telephone during the afternoon of March 28.

    !         Kenneth was distressed to learn of Lisa=s counter-petition but agreed to stay in counseling with Dr. Micheletti.

    !         During their March 28 conversation, Kenneth indicated his unwillingness to attend the mediation.

    !         Clarke advised Kenneth to attend the mediation and not to nonsuit his petition; Clarke counseled Kenneth as to the impact of Lisa=s counter-petition.

    !         Kenneth agreed to talk with Clarke about the issue again over the weekend.

    !         On Sunday morning, March 30, Kenneth again talked to Clarke and was adamant that he would not attend the mediation.  Kenneth instructed Clarke to notify Lisa=s counsel of this fact. 


                                                                  Kenneth=s Nonsuit

    On Sunday, March 30, a legal assistant from Terry=s office was in the office and noticed a faxed letter received at 12:04 p.m. that day from Clarke.  The letter stated that Kenneth was nonsuiting his petition to modify and would not attend the mediation the next day.  Terry, however, was already in Houston, and he was unable to confirm whether the mediation had been canceled.  Terry stayed overnight in Houston and prepared for the mediation. 

    On Monday, March 31, Terry learned that a similar message had been faxed to the mediator.  Neither Clarke nor Kenneth appeared for the scheduled mediation.  Neither filed any motion with the trial court seeking relief from attending the court-ordered mediation.  However, on March 31, Kenneth filed a nonsuit as to his petition to modify, acknowledging that Lisa=s counter-petition was still pending.

    Clarke=s Motion to Withdraw

    With trial on the counter-petition already set for April 7, 2003, on April 1, Clarke filed a motion to withdraw as Kenneth=s counsel.  Clarke attached to this motion Kenneth=s March 20, 2003, letter to her. 

    Lisa=s Motion for Sanctions

    On April 3, Lisa filed a motion for sanctions against Kenneth and Clarke, urging the court to grant relief based on its inherent power to sanction. Lisa sought attorney=s fees and expenses for attending the mediation that never occurred and for preparing, filing, and having a hearing on the motion for sanctions.  Lisa alleged that the trial court should sanction Kenneth and Clarke for Aengaging in bad faith litigation practices@ and for engaging in a Acourse of abusive conduct@ that created needless effort and expense.  In her motion-for-new-trial affidavit, Clarke states that she received notice on April 3 that the trial court would hear the motion for sanctions on April 7.  On April 4, Kenneth filed a motion for continuance. 

    Trial Court=s Rulings

    Kenneth and Clarke did not appear for either the trial or the sanctions hearing on April 7.  The trial court denied Kenneth=s motion for continuance and heard evidence.  The trial judge then announced in open court that he was granting Lisa=s counter-petition and granting sanctions against Kenneth and Clarke.

    On April 27, Kenneth committed suicide.  Clarke filed a suggestion of Kenneth=s death, and shortly thereafter the trial judge signed a written order granting Lisa=s counter-petition, awarding $37,000 in attorney=s fees and expenses as child support, awarding appellate attorney=s fees, and ordering sanctions against Kenneth and Clarke for $13,000 in fees and expenses.  Kenneth and Clarke filed a AMotion to Vacate Default Judgment and Motion for New Trial,@ which was overruled by operation of law.

    II.  Analysis

    A.        Did the trial court abuse its discretion in denying Kenneth=s motion for continuance?

    In his first issue, Kenneth asserts that the trial court abused its discretion in denying his motion for continuance.  On February 17, 2003, the trial court set this case for trial at 9:00 a.m. on April 7, 2003 in Galveston. On April 4, 2003, Kenneth filed a motion for continuance.  The only ground asserted in the motion was that Clarke had two other cases set for trial at 10:00 a.m. on April 7, 2003, in the 311th District Court in Houston.  Kenneth attached to his motion for continuance scheduling orders from these cases showing that on January 14, 2003, these cases were set for trial on April 7, 2003.  The trial court denied the motion for continuance on April 7, 2003.

    On appeal, Kenneth first relies upon Smith v. Babcock & Wilcox Const. Co., Inc., 913 S.W.2d 467 (Tex. 1995).  However, this case did not involve an appeal from a denial of a motion for continuance; rather, it involved an appeal from the trial court=s denial of a motion to reinstate following a dismissal for want of prosecution based on the failure of the plaintiffs and their attorneys to appear at trial.  See Smith, 913 S.W.2d at 468.  In the instant case, Kenneth was the counter-defendant.  The trial court denied Kenneth=s motion for continuance and proceeded with trial in the absence of Kenneth and his lawyer.  This case does not involve a dismissal for want of prosecution or a motion to reinstate. Furthermore, unlike in Smith, there is no evidence in this record that Kenneth=s counsel was actually in trial in another case when the trial court called the instant case to trial, and there is no evidence in this record that Clarke believed the trial court would grant a continuance based on her being in trial in another court.  See id. at 467B68 (basing decision on attorney=s actually being in trial in another court when trial court called case to trial and based on attorney=s reasonable explanation of how he understood the trial court to have previously stated that it would grant a continuance if attorney actually was in trial in another case when trial court called the case to trial).  Therefore, we conclude the Smith case is not on point.  See id.


    Kenneth=s main argument is based on Rule 10 of the Regional Rules of Administration of the Second Administrative Judicial Region.  See Sec. Admin. Jud. Reg., Reg. R. Admin. 10(b).  This rule states that, if an attorney is assigned to trial in two courts for the same day and if the courts do not agree on the priority between the cases, then priority  will be determined by a set of rules that gives priority, among other things, to cases that were set for trial first.  See id.  The record contains nothing to suggest that the trial court reached any agreement with the 311th District Court.  Because Clarke=s Houston trial settings were set first, these rules would give priority to the Houston settings over the setting in this case.[2]  See id.  Kenneth cites a case in which the Texas Supreme Court conditionally granted mandamus relief based in part on a trial court=s violation of an earlier version of this same rule.  See Dancy v. Daggett, 815 S.W.2d 548, 549B50 (Tex. 1991).


    The Dancy case is not on point because in that case  Dancy=s lawyer promptly notified the trial court of the conflicting settings.  See id. at 549; Spearman v. Texas Dept. of Corr., 918 S.W.2d 23, 24B25 (Tex. App.CEastland 1996, no writ) (distinguishing Dancy because lawyer in Spearman did not promptly notify the trial court of the conflicting settings).  In this case, Kenneth=s motion for continuance does not state that he notified the trial court of this conflict, and on appeal, Kenneth states that he notified the trial court early on April 7, 2003 that one of the Houston cases would be tried that morning.  Rule 10 of the Regional Rules of Administration for the Second Administrative Region states that an attorney assigned to trial in two different cases on the same day has a duty to notify the affected courts of the conflicting trial settings as soon as they are known.  See Sec. Admin. Jud. Reg., Reg. R. Admin. 10(b)(1); see also Harris Cty. Fam. R. 8.7 (stating A[i]t is the duty of counsel to report promptly to the court immediately upon learning of a conflicting engagement that might preclude that counsel=s availability for trial.  Failure to do so may result in sanctions@).  In her motion-for-new-trial affidavit, Clarke states that on February 19, 2003, she received the trial court=s order setting this case for trial at 9:00 a.m. on April 7, 2003.  Clarke did not file a motion for continuance until 4:14 p.m. on Friday, April 4, and Kenneth brought this conflict to the trial court=s attention no earlier than at 8:47 a.m. on April 7, when Clarke=s office left a message via voicemail for the trial court.  Unlike Dancy=s lawyer, Clarke failed to notify the trial court of the conflicting settings as soon as she was aware of them, which was no later than February 19, 2003.  See Dancy, 815 S.W.2d at 549.  By violating Rule 10, Clarke deprived the trial court of the opportunity of working out the conflicting setting with the presiding judge of the 311th District Court in Harris County.  See Sec. Admin. Jud. Reg., Reg. R. Admin. 10(b)(2) (stating that A[i]nsofar as practicable, Judges should attempt to agree on which case has priority . . .@).  Therefore, we conclude the trial court did not abuse its discretion in denying a continuance based on Kenneth=s assertion of a conflicting trial setting that allegedly had priority under Rule 10.  See Spearman, 918 S.W.2d at 24B25 (distinguishing Dancy and holding trial court did not abuse its discretion in denying continuance based on conflicting trial setting in criminal case in another county in part because attorney for nonappearing party did not promptly bring the conflicting setting to the trial court=s attention upon learning about it). Accordingly, we overrule Kenneth=s first issue.

    B.        Did the trial court err in awarding appellate attorney=s fees based on the lack of a specific request?

    In his second issue, Kenneth first asserts the trial court erred in awarding appellate attorney=s fees because Lisa did not specifically plead for them.  Lisa requested attorney=s fees in her counter-petition, but she did not specifically request appellate attorney=s fees.  Kenneth cites no cases holding that a general request for attorney=s fees is insufficient to support an award of appellate fees.  Because no special exceptions were sustained as to Lisa=s counter-petition, we construe that petition liberally and in Lisa=s favor.  See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex. 2000).  Under this liberal construction, we conclude that Lisa sufficiently requested appellate attorney=s fees by her general request for attorney=s fees in her counter-petition.  See, e.g., Superior Ironworks, Inc. v. Roll Form Prods., Inc., 789 S.W.2d 430, 431 (Tex. App.CHouston [1st Dist.] 1990, no writ) (noting that a general prayer for attorney=s fees is sufficient to authorize an award of appellate fees).  Accordingly, we overrule Kenneth=s second issue to the extent it is based on Lisa=s failure to specifically request appellate attorney=s fees.

    C.        Did the trial court err in awarding appellate attorney=s fees because the award of these fees was not made conditional on the requesting party=s success on appeal?

     

    In his second issue, Kenneth also asserts that the trial court erred in awarding appellate attorney=s fees not conditioned on Lisa=s success on appeal.  In her brief, Lisa concedes error in this regard and agrees that this court should reform the judgment to condition the award of appellate fees on her success on appeal.  Accordingly, we sustain Kenneth=s issue to this extent, and we modify the trial court=s judgment to condition the award of appellate attorney=s fees on Lisa=s success on appeal.

    D.        Did the trial court err in awarding attorney=s fees and expenses as child support?

    In his third issue, Kenneth asserts that the trial court erred in awarding the $37,000 in attorney=s fees and expenses as child support.  On appeal, Lisa concedes error as to this issue and agrees that the proper remedy is to modify the judgment to delete all characterization of attorney=s fees or expenses as child support.  Accordingly, we sustain Kenneth=s third issue and modify the trial court=s judgment to strike all parts of the judgment that allow enforcement of any amount thereunder as child support. 

    E.        Did the trial court err in granting the motion for sanctions?

    In their fourth and fifth issues, Kenneth and Clarke assert the trial court abused its discretion in granting Lisa=s motion for sanctions for the following reasons:

    (1)       Lisa did not serve her motion for sanctions on Kenneth personally, even though the motion sought to hold him in contempt.

    (2)       The trial court violated Texas Rules of Civil Procedure 21 and 21a as well as constitutional guarantees of due process by holding a hearing on Lisa=s motion with four days= notice rather than six days= notice, as allegedly required by Rule 21.

    (3)       Lisa did not verify the motion for sanctions.

    (4)       Although the trial court awarded sanctions based on its inherent power, there was no evidence at the sanctions hearing that showed conduct by Kenneth or Clarke that significantly interfered with the trial court=s exercise of one of its core functions.[3]

     

    1.  Personal Service of Sanctions Motion

    Though Lisa sought to hold Kenneth in contempt as part of the relief requested in her motion for sanctions, she did not request this relief at the sanctions hearing and the trial court did not grant any contempt judgment.  Personal service on Kenneth might well be necessary to support a contempt judgment against him, but Kenneth and Clarke cite no case requiring personal service merely because the movant requested, though did not receive, a contempt judgment. Because the trial court did not render a contempt judgment, personal service was not required.  See Ex parte Blanchard, 736 S.W.2d 642, 643 (Tex. 1987) (stating that, in constructive contempt cases, due process requires that contemnor be personally served with show-cause order or have actual knowledge of the contents of such an order, otherwise the contempt judgment is void).  Accordingly, we reject the notion that lack of personal service of the sanctions motions provides grounds for error.

    2.  Notice of the Sanctions Hearing

    Kenneth and Clarke also assert that, although they received four days= notice of the April 7 sanctions hearing, they were entitled to six days= notice under Rules 21 and 21a of the Texas Rules of Civil Procedure.  See Tex. R. Civ. P. 21, 21a.  Kenneth and Clarke assert that, by failing to provide six days= notice of the sanctions hearing, the trial court abused its discretion and violated their constitutional rights to due process. Notably, this is not a case in which parties were sanctioned and received no notice of the sanctions hearing. Kenneth and Clarke received four days= notice of the sanctions hearing.  Presuming for the sake of argument that the three-day notice period under Rule 21 was extended to six days by Rule 21a, Rule 21 still provides that the trial court may shorten the notice period.  See Tex. R. Civ. P. 21; Buruato v. Mercy Hosp. of Laredo, 2 S.W.3d 385, 387B88 (Tex. App.CSan Antonio 1999, pet. denied).  The trial court=s action in conducting a hearing on four days= notice rather than six days= notice will not be disturbed on appeal unless, under the circumstances, the trial court abused its discretion in shortening the notice period.  See Buruato, 2 S.W.3d at 387B88.


    In her motion-for-new-trial affidavit, Clarke states that on April 3, 2003, she received a fax with Lisa=s motion for sanctions and notice of a hearing to be held thereon on April 7, 2003.  Although the following afternoon Kenneth filed a motion for continuance as to the trial setting on April 7, 2003, neither Kenneth nor Clarke ever filed a motion to continue or reset the sanctions hearing, nor did they file any objection, prior to the sanctions hearing, based on insufficient notice. On appeal, Kenneth and Clarke do not discuss the trial court=s ability to shorten the notice period.  After reviewing the record and the circumstances present in this case, we conclude that, even if the rules ordinarily would have required six days= notice, the trial court did not abuse its discretion or violate Kenneth and Clarke=s due process rights in shortening the notice period to four days.  See Massingill v. Swanner, No. 05-04-00918-CV, 2005 WL 518965, at *1B2 (Tex. App.CDallas Mar. 7, 2005, no pet. h.) (mem. op.) (holding trial court did not abuse its discretion in shortening notice period for temporary-injunction hearing to one day); Buruato, 2 S.W.3d at 387B88 (holding trial court did not abuse its discretion in shortening notice period for motion from six days to four days); Petit v. Laware, 715 S.W.2d 688, 689B91 (Tex. App.CHouston [1st Dist.] 1986, writ ref=d n.r.e.) (holding trial court did not abuse its discretion in shortening notice period for motion to quash from three days to one day); Standard Sav. Ass=n v. Cromwell, 714 S.W.2d 49, 50B51 (Tex. App.CHouston [14th Dist.] 1986, no writ) (holding trial court did not abuse its discretion in shortening the notice period to no prior notice of hearing on motion to withdraw deemed admissions that was granted just before trial began).  Accordingly, we reject this notice argument as grounds for overturning the sanctions.

    3.  Lack of Verification or Affidavit on the Sanctions Motion

    Kenneth and Clarke also assert that the trial court erred in granting sanctions because Lisa did not verify the motion for sanctions or attach an affidavit thereto.  They cite no cases in support of this proposition.  Though Lisa did not verify her motion for sanctions or attach a supporting affidavit, the trial court held a hearing and received evidence on this motion. Motions for sanctions may be and often are verified or supported by affidavits, but there is no per se requirement that they be filed in this fashion.  Lisa=s failure to verify her sanctions motion or to attach an affidavit to it does not make the trial court=s award of sanctions an abuse of discretion. 

    4.  Interference with the Trial Court=s Core Functions

    Kenneth and Clarke further assert that there is no evidence showing that they engaged in conduct that significantly interfered with the trial court=s exercise of one of its core functions. For the trial court to have exercised its inherent power to sanction Kenneth and Clarke, there must have been some evidence that their conduct significantly interfered with the trial court=s legitimate exercise of one of its core functions.  See McWhorter v. Sheller, 993 S.W.2d 781, 788B89 (Tex. App.CHouston [14th Dist.] 1999, pet. denied).  The trial court based the sanctions on its findings of the following conduct by Kenneth and Clarke:

    (1)       Kenneth=s failure to appear at trial;

    (2)       Clarke=s failure to timely notify Lisa=s counsel of Kenneth=s desire to nonsuit his petition to modify after Kenneth=s March 20, 2003 faxed letter;

    (3)       Kenneth=s failure to complete a court-ordered psychological evaluation;[4] and

    (4)       The unilateral cancellation of a court-ordered mediation without adequate notice.

    If even one of these grounds constitutes conduct that significantly interferes with a core function of the court and there is legally sufficient evidence to support it, we must affirm the trial court=s order.  At the outset, we note that there are potential problems with sanctioning Kenneth and Clarke for some of this conduct. 


    Although the trial court was acting within its discretion in proceeding to trial in the absence of Kenneth and Clarke and in granting Lisa all of the relief sought in her counter-petition, the mere failure of Kenneth and Clarke to appear for trial should not expose them to sanctions.  A defendant who fails to appear for trial may be subject to a judgment following trial in his absence, but the worst-case scenario for such a defendant should be an adverse judgment for all relief sought in the plaintiff=s pleadings.  See Sharpe v. Kilcoyne, 962 S.W.2d 697, 698B702 (Tex. App.CFort Worth 1998, no pet.) (affirming sanctions against defendant that were limited to a post-answer default judgment as to liability and damages after defendant moved from Texas to Canada, refused to accept correspondence from court and counsel regarding the lawsuit, and failed to appear at two deposition settings, a sanctions hearing, and a trial setting). Generally, failure to appear at trial does not interfere with the trial court=s exercise of one of its core functions. Likewise, there might be potential conflicts with the attorney-client relationship and the attorney-client privilege if an attorney were sanctioned for failure to promptly notify opposing counsel of her client=s desires regarding the case, even if those desires include dismissing the client=s claims. 

    Nonetheless, under the applicable standard of review, there is legally sufficient evidence in the record to support the trial court=s determination that Kenneth and Clarke unilaterally canceled and failed to attend a court-ordered mediation without adequate notice.[5] See City of Keller v. Wilson, __ S.W.3d __, __, No. 02-1012, 2004 WL 1366509, *2B14 (Tex. June 10, 2005) (setting out legal sufficiency standard of review); Roberts v. Rose, 37 S.W.3d 31, 33B35 (Tex. App.CSan Antonio 2000, no pet.) (affirming sanctions against attorney for failing to appear at a court-ordered mediation).  By doing so, they violated a court order, signed February 17, 2003, in which the trial court expressly directed the parties and their counsel to Aappear and attend@ the mediation.[6]  Included within a trial court=s core functions is the management of its docket and the issuance and enforcement of its orders.   Indeed, it is the office of the court to issue orders andCwhen and if the court deems it appropriateCto vacate, rescind, or modify its orders. Lawyers and litigants do not have the authority to issue orders, nor do they have the authority to vacate, rescind, or modify court orders.  When Clarke chose to cancel the court-ordered mediation, she effectively usurped the court=s role and displaced the court as decision maker. By taking it upon herself to countermand that which the court had ordered, Clarke interfered with a core function of the court. 


    In addition to this act of interference, Clarke failed to obey the court=s command to appear for mediation.  The failure to comply with a trial court=s order to participate in mediation constitutes significant interference with the court=s core functions and, therefore, can support an award of sanctions imposed under the court=s inherent power to sanction.  See Kutch v. Delmar Coll., 831 S.W.2d 506, 510B12 (Tex. App.CCorpus Christi 1992, no writ) (stating that violation of a court order relating to the court=s management and administration of a pending case generally will be significant interference with a core function).  The evidence in the record shows that the trial court ordered both the parties and their counsel to attend the mediation and that, despite this express directive, Clarke did not appear as ordered, nor did she offer any explanation or excuse for her failure to attend notwithstanding her client=s refusal to do so.  When Clarke elected not to attend the mediation as ordered by the court and instead chose to unilaterally cancel it, the trial court had not granted (and she had not sought) relief from the order compelling her attendance, nor did she have the agreement of all other parties to postpone or reschedule the mediation.  At no point did Clarke ask to be excused from compliance with the court=s order and at no point did the court excuse her non-compliance.  Although the dissent correctly notes that Clarke could not control Kenneth=s behavior, Clarke is accountable for her own conduct and her unexcused failure to comply with the trial court=s order is legally sufficient evidence to support the sanctions.  See id.


    The dissent concludes that the usurpation of the court=s role and the failure to comply with the court=s order constitute no evidence of significant interference with the trial court=s core functions, reasoning that these were events beyond Clarke=s control.  The dissent states that Aas soon as Clarke was aware of Kenneth=s unequivocal refusal to attend, she attempted to notify those involved with the mediation,@ and that, because Kenneth refused to attend the mediation despite Clarke=s advice to do so, Clarke could Ado nothing more in such a situation except withdraw from the representation.@  We respectfully disagree.  There were other alternatives Clarke could have pursued that would not have involved the usurpation of the court=s duties or the violation of the court=s order.  For example, Clarke could have filed a motion asking the trial court to cancel or postpone the mediation.  Pursuing this option would have allowed the court, whose office it is to rule on such matters, to decide whether its previous order should be modified and, if so, how and under what conditions.  Likewise, Clarke could have attended the mediation as ordered and attempted to resolve the remaining issues.  She indicated in her affidavit that Kenneth was willing to agree to the relief sought in Lisa=s counter-petition and, presumably, Clarke had authority to settle on that basis.  But even without settlement authority, Clarke could have attended the mediation and worked toward a resolution of the matters in dispute.  By pursuing this option, Clarke would have been in the compliance with the court=s order even if her client was not.

    The dissent points to facts that tend to mitigate the circumstances surrounding Clarke=s failure to appear as ordered, stating, for example, that Clarke attempted to notify those involved with the mediation as soon as she was aware of Kenneth=s Aunequivocal refusal to attend.@  We acknowledge that Clarke was in a difficult situation and that she made some effort to mitigate inconvenience and expense after deciding on Sunday not to attend the mediation the court had ordered for the following day.  Nonetheless, eight days before her Friday, March 28, conversation with Kenneth, Clarke received a fax from him in which he stated he no longer wished to participate in this case.  Clarke also knew that opposing counsel would be coming from out of town for the Monday, March 31 mediation.  In this context, the trial court reasonably could have concluded that Clarke should have resolved the issue of Kenneth=s attendance at the mediation during her phone conference with him on Friday, March 28.  The trial court was not required to limit its consideration of the facts to what Clarke did to mitigate; rather, the trial court was free to consider all of the circumstances surrounding Clarke=s failure to comply with its order in determining whether sanctions were appropriate, including that Clarke had learned of Kenneth=s unwillingness to attend the mediation earlier in the week and did not seek to reschedule at that time, that she did not appear as ordered, and that she opted to cancel the mediation herself rather than seek the court=s permission.

    We acknowledge that another trial court might well have declined to impose sanctions under the circumstances of this case, but that is no answer to the issue before us.  Clarke=s challenge to the sanctions order is that there is no evidence to support it and this is the legal standard against which we must measure the propriety of the trial court=s order.  

    Under these circumstances and based on the trial court=s findings, we conclude  there is legally sufficient evidence that Kenneth and Clarke engaged in conduct that significantly interfered with the trial court=s legitimate exercise of one of its core functions.  See Kings Park Apartments, Ltd. v. Nat. Union Fire Ins. Co. of Pittsburgh, Pa., 101 S.W.3d 525, 541 (Tex. App.CHouston [1st Dist.] 2003, pet. denied) (holding there was legally sufficient evidence of conduct that significantly interfered with the trial court=s legitimate exercise of one of its core functions); Kutch, 831 S.W.2d at 510B12.  On this basis, we reject their challenge to the trial court=s sanctions.[7]

    Having rejected all of the arguments of Kenneth and Clarke under their fourth and fifth issues, we overrule these issues.[8]

    F.        Did the trial court abuse its discretion in denying Kenneth and Clarke=s motion for new trial?

    In their seventh issue, Kenneth and Clarke assert that the trial court abused its discretion in denying their motion for new trial because this motion allegedly satisfied the Craddock standard.  See Ivy v. Carrell, 407 S.W.2d 212, 213B15 (Tex. 1966); Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939).  The trial court did not hold a hearing on the motion for new trial, which was overruled by operation of law.  In analyzing this issue, we must determine whether the trial court abused its discretion in impliedly determining that Kenneth and Clarke=s motion for new trial failed to present the following: (1) facts showing that their failure to appear at trial and the sanctions hearing was not intentional or the result of conscious indifference on their part but was due to a mistake or accident, and (2) facts which in law would constitute a meritorious defense.[9]  See Ivy, 407 S.W.2d at 214; Vickery v. Texas Carpet Co., Inc., 792 S.W.2d 759, 761 (Tex. App.CHouston [14th Dist.] 1990, writ denied).  In determining whether there is intentional disregard or conscious indifference, the trial court examines the knowledge and acts of the parties who failed to appear.  See Vickery, 792 S.W.2d at 761.  A failure to appear is not intentional or due to conscious indifference merely because it was deliberate; rather, it must also be without justification. See Smith, 913 S.W.2d at 468. Proof of such justificationCaccident, mistake, or other reasonable explanationCnegates intent or conscious indifference.  See id.

    Clarke=s motion-for-new-trial affidavit states the following:

    !         On March 28, Clarke notified Kenneth of Lisa=s counter-petition and counseled Kenneth as to its impact.

    !         Contrary to Clarke=s advice to Kenneth, he insisted on nonsuiting his petition on March 31, and not attending the court-ordered mediation scheduled for that date. 

    !         Clarke filed her motion to withdraw on April 1, because Kenneth Awas adamant that he could not go further in the case.@ 


    !         Although Clarke was able to resolve one of the two Harris County cases set for trial on April 7, she could not resolve the other one, so she filed a motion for continuance for Kenneth on April 4, based on the Regional Rules of Administration, which appeared to give preference to the Harris County case.

    !         On April 7, at 8:47 a.m., Clarke=s office called the trial court and left a voicemail message stating that Clarke had filed a motion for continuance and stating that she Awas in fact on [her] way to trial in Harris County.@ 

    In the body of their motion for new trial, Kenneth and Clarke state that Clarke=s legal assistant called the trial court at 8:47 a.m. on April 7 to Ainform the Court that Ms. Clarke was in trial in Harris County.@  However, in a seven-page, single-spaced affidavit, Clarke never actually states that she was in trial in Harris County when the trial court conducted the trial and sanctions hearing in this case.  At one point in the appellants= brief, Kenneth and Clarke state that Clarke was in trial in Harris County; however, to support this proposition, they cite only Clarke=s affidavit testimony that her office left a message that she was on her way to trial in Harris County.  The fact that her office left such a message does not necessarily mean that Clarke was actually in trial in the Harris County case on the morning of April 7.  In their argument under the seventh issue, Kenneth and Clarke also state that Aas is the frequent situation in Family Law, cases are set for trial but end up settling.@ 


    Regardless of whether Clarke=s Harris County case settled just before it was scheduled to go to trial, Kenneth and Clarke=s motion for new trial does not assert facts showing a reasonable explanation for their deliberate failure to appear on April 7.[10]  As to the sanctions hearing, Kenneth and Clarke did not file a motion to continue or reset this hearing, nor did they file any pre-hearing objection to the trial court conducting this hearing on April 7.  Therefore, their motion for new trial does not show that they lacked intent or conscious indifference.  See Vickery, 792 S.W.2d 761B62 (holding trial court did not abuse its discretion as to first prong of Craddock in case in which attorney with conflicting trial settings failed to present a motion for continuance to the trial court); see also Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 686 (Tex. 2002) (stating that, outside of the default-judgment context, Craddock does not apply to situations in which the procedural rules afford the party a remedy, for example the opportunity to seek a continuance). 

    As to the trial setting, this case is different from Smith.  See Smith, 913 S.W.2d at 467B68.  The motion for new trial in this case and the attached affidavit do not assert that Clarke was in trial in Harris County on the morning of April 7, 2003.  In Smith, the movants for reinstatement asserted that their counsel was actually in trial in another county when the trial court called the case to trial.  See id.  The movants= counsel in Smith explained how he reasonably believed the trial court, in previously denying their motion for continuance, had stated that the court would grant a continuance if in fact the movants= counsel was in trial in the other court when it called the movants= case to trial.  See id.  Further, the movants= counsel sent a letter to the trial court memorializing this understanding.  See id. Kenneth and Clarke=s motion for new trial and Clarke=s affidavit in support thereof do not assert that Clarke believed that her motion for continuance, which was filed on the eve of trial, would be granted.  The record does not contain any letter from Clarke memorializing her understanding, if any, that the trial court in this case would grant a continuance if she were actually in trial in the 311th District Court on the morning of April 7. Furthermore, the motion for new trial and Clarke=s affidavit do not assert that Clarke was unable to arrange for another attorney to handle the Harris County matter for her on April 7, so that she could be present in the trial court in this case.  On this record, we conclude that the trial court did not abuse its discretion in impliedly concluding that Clarke lacked justification for her deliberate failure to appear on April 7.  See id.; Vickery, 792 S.W.2d 761B62.

    On appeal, Kenneth and Clarke argue that, in their motion for new trial, they showed a lack of intent and lack of conscious disregard by demonstrating that Clarke tried to comport with the Regional Rules of Administration of the Second Administrative Judicial Region in assessing whether to file a motion for continuance and in deciding which trial to attend. However, as discussed in Section II. A., above, the trial court did not abuse its discretion in impliedly determining that Clarke violated these rules and deprived the trial court of an opportunity to work out the conflicting setting with the presiding judge of the 311th District Court in Harris County.  See Sec. Admin. Jud. Reg., Reg. R. Admin. 10(b)(1) (stating that lawyers who have conflicting trial settings have a duty to notify the affected courts of the conflicting trial settings as soon as they are known).  Therefore, the trial court did not abuse its discretion by impliedly determining that these rules do not provide a reasonable explanation or justification for Clarke=s deliberate failure to appear at the trial and sanctions hearing on April 7, 2003. 


    Furthermore, we disagree with Kenneth and Clarke=s assertion on appeal that their motion for new trial sets forth facts constituting a meritorious defense to the trial court=s finding of sanctionable conduct by them as well as defenses based on allegedly improper notice and violation of due process.  As discussed in Section II. E., above, the trial court had the ability to exercise its inherent power to sanction Kenneth and Clarke, and Kenneth and Clarke=s motion for new trial does not set forth facts setting up a defense to the sanctionable nature of their conduct regarding the mediation and the court-ordered psychological evaluation.  Their motion for new trial does not set forth facts showing that the trial court erred in shortening the notice period for the sanctions hearing from six to four days or showing that the trial court violated their due process rights.  See Ivy, 407 S.W.2d at 214B15 (holding trial court did not err in denying motion for new trial because movant did not set forth facts that in law constitute a meritorious defense).  Accordingly, we overrule the seventh issue.[11]

    III.  Conclusion

    The trial court did not err in denying Kenneth=s motion for continuance.  Lisa=s counter-petition supports an award of appellate attorney=s fees.  The trial court did not abuse its discretion in assessing monetary sanctions against Kenneth and Clarke based on Lisa=s failure to personally serve Kenneth or her failure to verify her motion for sanctions.  The trial court did not abuse its discretion in shortening the notice period as to the sanctions hearing from six to four days; and therefore, the trial court did not violate Texas Rules of Civil Procedure 21 and 21a or constitutional guarantees of due process.  The evidence presented at the sanctions hearing is legally sufficient to show that the conduct by Kenneth and Clarke significantly interfered with the trial court=s exercise of one of its core functions. The trial court did not abuse its discretion in denying a new trial and in impliedly determining that Kenneth and Clarke=s motion for new trial failed to present either facts showing that their failure to appear on April 7 was not intentional or the result of conscious indifference, but was due to a mistake, accident, or facts which in law would constitute a meritorious defense.     Nonetheless, Lisa concedes error as to the trial court=s failure to condition the award of appellate attorney=s fees on her success on appeal and as to the trial court=s awarding of attorney=s fees and expenses as child support.  Accordingly, we modify the trial court=s judgment (1) to condition all awards of appellate attorney=s fees on Lisa=s success on appeal, and (2) to strike all parts of the judgment that allow enforcement of any amount thereunder as child support. As modified, we affirm the trial court=s judgment.

     

    /s/        Kem Thompson Frost

    Justice

     

    Judgment rendered and Majority and Dissenting Opinions filed August 30, 2005.

     

    Panel consists of Chief Justice Hedges and Justices Frost and Guzman. (Guzman, J., dissenting.)

     

     


    [1]  Kenneth L. Richardson died after the trial in the court below but before the trial court signed its judgment.  In this opinion, for ease of reference, we refer to both Kenneth L. Richardson and the Estate of Kenneth L. Richardson as AKenneth,@ unless otherwise indicated.

    [2]  We note that Lisa=s counsel asserted at the hearing on the motion for continuance that, in October of 2002, Clarke actually had agreed to an April 7 trial setting in this case.  Lisa=s counsel appears to have argued that, but for dilatory conduct by Clarke, the trial court would have set this case for trial before the Houston cases were set. However, on appeal, we presume for the sake of argument that the Houston cases were set first.

    [3]  Kenneth and Clarke do not assert that the trial court abused its discretion in determining that there was good cause to sanction them. Kenneth and Clarke do not challenge the trial court=s determination that their conduct constituted bad faith litigation practices that caused Lisa to incur additional attorney=s fees and expenses. Nor do Kenneth and Clarke challenge the trial court=s determination that $13,000 is a just and appropriate sanction for their conduct in this regard. Accordingly, we do not reach these issues. 

    [4]  The record reflects that on March 26, 2003, Dr. Ferrell sent a letter to the parties stating that he had been unable to complete the psychological evaluation ordered by the trial court because he had not been able to schedule a home visit with Kenneth, despite leaving numerous messages for Kenneth and sending him a fax.  Because of these difficulties and because Dr. Ferrell was scheduled to be out of town from March 30 through April 6, Dr. Ferrell indicated that he would not be able to have the psychological evaluation completed by April 7, 2003. 

    [5]  There is also legally sufficient evidence that Kenneth failed to complete the psychological evaluation ordered by the trial court.  See City of Keller v. Wilson, __ S.W.3d __, __, No. 02-1012, 2004 WL 1366509, *2B14 (Tex. June 10, 2005).

    [6]  In the same order, the trial court instructed the mediator to advise the court, upon completion of the mediation, Awhether the parties and their counsel appeared as ordered, and whether a settlement resulted.@

    [7]  Kenneth and Clarke have not challenged the sanctions based on the trial court=s failure to find that their conduct significantly interfered with the trial court=s legitimate exercise of one of its core functions.  However, even if they had done so, there is sufficient evidence in the record to imply a finding to this effect under Texas Rule of Civil Procedure 299.  See Tex. R. Civ. P. 299.

    [8]  The sixth issue asserted by Kenneth and Clarke concerning the trial court=s failure to file findings of fact and conclusions of law is now moot based on this court=s abatement order and the trial court=s subsequent issuance of findings of fact and conclusions of law.

    [9]  We need not reach and do not discuss the third requirement of the Craddock standardCthat granting a new trial would not occasion a delay or otherwise work an injury upon Lisa.  See Ivy, 407 S.W.2d at 214.

    [10]  In their seventh issue, Kenneth and Clarke argue they lacked intent or conscious indifference solely based on Clarke=s conflicting trial setting in Harris County. In any event, Clarke=s affidavit did not show that Kenneth was innocent in failing to appear; rather, Clarke=s affidavit shows that, despite notice to him (through Clarke) of the trial setting and sanctions hearing on April 7, Kenneth, deliberately and without reasonable explanation, failed to appear on April 7.

    [11]  Even if Kenneth and Clarke had asserted generally that the trial court erred in denying their motion for new trial, based on a review of the issues presented therein, we still would conclude that the trial court did not abuse its discretion in denying this motion.