Clifford Zeifman v. Sheryl Diane Michels, Karl E. Hays, and John Barrett ( 2013 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00114-CV
Clifford Zeifman, Appellant
v.
Sheryl Diane Michels, Karl E. Hays, and John Barrett, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
NO. D-1-GN-06-002930, HONORABLE RHONDA HURLEY, JUDGE PRESIDING
MEMORANDUM OPINION
Clifford Zeifman appeals an order denying his motion for sanctions against
appellees Sheryl Diane Michels, Karl E. Hays, and John Barrett, and awarding each appellee
$10,000 for attorney’s fees incurred in defending against Zeifman’s motion. We will affirm the
district court’s judgment.
BACKGROUND
This appeal is the latest to arise from a series of legal battles involving Zeifman and
Michels that has spanned almost ten years, cost them hundreds of thousands of dollars of legal fees,
and generated no less than five previous opinions from this court.1 As remarkable as it seems now,
1
See Michels v. Zeifman, No. 03-08-00287-CV, 2009 Tex. App. LEXIS 1017
(Tex. App.—Austin Feb. 12, 2009, pet. denied) (mem. op.); Zeifman v. Michels, 229 S.W.3d 460
(Tex. App.—Austin 2007, pet. denied); In re Zeifman, No. 03-06-00601-CV, 2006 Tex. App. LEXIS
11340 (Tex. App.—Austin Nov. 22, 2006, orig. proceeding) (mem. op.); Zeifman v. Michels,
212 S.W.3d 582 (Tex. App.—Austin 2006, pet. denied); see also Zeifman v. Nowlin, 322 S.W.3d
804 (Tex. App.—Austin 2010, no pet.).
Zeifman and Michels once got along well enough to get married, as they did in 1992, and they
even had two children together: G.L., a son, born in 1994, and A.A., a daughter, born in 1997. But
Zeifman and Michels divorced in 1998, and G.L. and A.A. have since spent their formative years in
the shadow of “extensive and acrimonious litigation” between their parents that is ostensibly aimed
at advancing each parent’s perception of the children’s welfare. See Zeifman v. Michels, 229 S.W.3d
460, 461–62 (Tex. App.—Austin 2007, pet. denied).
The final divorce decree was based on an irrevocable mediated settlement agreement
filed with the district court and incorporated into the decree. See Tex. Fam. Code § 6.602. The
decree named both parents as joint managing conservators and, of relevance here, incorporated the
following negotiated agreement regarding their young children’s education:
The Court finds that the parties have agreed and IT IS THEREFORE ORDERED that
the children shall attend the University of Texas Lab School until such a time as the
children are of the age to attend elementary school. The Court finds that the parties
have agreed and IT IS THEREFORE ORDERED that, at that time, the children
shall attend the public school in the following order of priority for elementary school:
(1) Bryker Woods; or (2) Casis; provided, however, that if neither party lives in a
residential area eligible to attend either Bryker Woods or Casis, then the children
shall attend elementary school which the children are eligible to attend, at the highest
rated school, the highest rating being determined by the annual TAAS testing, using
the previous year’s rankings, or shall attend another elementary school to which
the parties agree in writing. The Court finds that the parties have agreed and IT IS
THEREFORE ORDERED that for middle school, the children shall attend the
middle school into which the children’s elementary school feeds. The Court finds
that the parties have agreed and IT IS THEREFORE ORDERED that for high school,
the children shall attend the high school into which the children’s middle school
feeds.
The decree anticipated that the parents might have disagreements regarding
educational decisions for their children that they could not resolve, and provided the following
mechanism in that event:
2
The Court finds that the parties have agreed and IT IS THEREFORE ORDERED that
if the parties cannot agree on educational decisions for a child, the parties shall
follow the recommendations of the person that is the child’s teacher at the time of the
decision.
Pursuant to the decree, A.A., the youngest child, spent her first-grade year at
Bryker Woods Elementary, which is a public school in the Austin Independent School District
(AISD). In April 2004, toward the end of that school year, Michels applied for her admission
to St. Andrew’s Episcopal School—a private school—for the next school year. She did not
notify Zeifman of the application until after A.A. had been placed on St. Andrew’s waiting list. In
June 2004, A.A. was accepted for admission. Zeifman objected to the change of schools and insisted
that the parties follow the decree. Pursuant to the decree, Michels consulted with A.A.’s first-grade
teacher at Bryker Woods, who advised Michels that she thought it would be best if A.A. stayed
at Bryker Woods.
On July 19, 2004, Michels filed a petition to modify the parent-child relationship.
After a hearing, the district court modified the decree to provide that Michels have the sole right to
make educational decisions for A.A. Zeifman appealed the district court’s decision to this Court.
On August 4, 2006, we reversed the district court’s modification order, concluding that there was
legally insufficient evidence to support the district court’s finding that the circumstances of the child
or of either conservator had materially and substantially changed so as to warrant the modification
of the decree. See Zeifman v. Michels, 212 S.W.3d 582, 596 (Tex. App.—Austin 2006, pet. denied).
We held that the district court abused its discretion in modifying the decree and rendered judgment
in favor of Zeifman.
3
On August 9, 2006, after we released our opinion, but before mandate issued,
Zeifman wrote Michels a letter indicating his understanding of our opinion to be that “the
joint custody and decision making agreed in the decree is fully restored and the school [A.A.]
attends is stipulated by the same court order.” Accordingly, Zeifman wrote that he had “informed
Brykerwoods of [A.A.]’s re-enrollment and completed the necessary paperwork.”
On the next day, one of Michels’s attorneys, appellee Karl Hays, sent a letter to
Zeifman’s attorney at the time, Jimmy Vaught, indicating Michels’s belief that this Court’s opinion
was “not effective or enforceable” until the mandate issued and that the May 25 order was still in
effect, leaving Zeifman without authority to re-enroll A.A. at Bryker Woods. To the extent Zeifman
contended that the parties were subject to the divorce decree’s terms, Hays gave notice that Michels
did not consent to A.A.’s enrollment at Bryker Woods. Hays also stated that if Zeifman insisted
that the divorce decree was in effect, they would need to arrange to obtain a recommendation from
her current teacher “as soon as possible in light of the impending start of the academic year.” Vaught
responded the same day expressing disagreement with Michels’s position and asserting that the
teacher recommendation made in 2004 that A.A. remain at Bryker Woods was still effective. Vaught
took the position that, “[b]y enrolling [A.A.] in Bryker Woods, Mr. Zeifman is adhering to the
recommendation” of her teacher “which Ms. Michels disregarded.”
On the same day, Hays sent a letter to the principal of Bryker Woods requesting that
the school deny A.A.’s re-enrollment based on the district court’s May 25, 2005 order granting
Michels the exclusive right to make educational decisions for A.A. (the order that this Court
had reversed several days before). The letter enclosed a copy of the May 25 order as well as a copy
of the “Travis County Standing Order Regarding Children, Property and Conduct of the Parties,”
4
which provides that children of parties to a pending family law case must not be withdrawn
from the school where they are enrolled without the consent of both parents. Hays stated that he was
providing the school with these orders because it was his understanding that Zeifman was
“attempting to register [A.A.] at Bryker Woods,” but Zeifman “has no authority” to do so and
Michels “objects to any effort” by Zeifman to enroll A.A. at Bryker Woods. Hays did not mention
this Court’s opinion reversing the May 25 order.
On August 14, 2006, the day before the Bryker Woods’s school year began, Michels
sued AISD seeking injunctive relief to prevent the district from permitting A.A. to be enrolled
at Bryker Woods or any other AISD school as the 2006 school year began. Michels alleged that
permitting such enrollment would (1) violate Michels’s exclusive parental rights (at least until the
mandate issued) to make educational decisions on behalf of A.A. and (2) “actively assist [] . . . and
aid[] and abet[] Clifford Zeifman in the violation of a valid court order,” the Travis County standing
order it had previously provided to Bryker Wood’s principal.2 Michels did not name Zeifman as a
party to this action, nor did she provide notice to him or his attorney on the day the action was filed.
2
This standing order, applicable to “every divorce suit and every suit affecting the
parent-child relationship filed in Travis County” after January 1, 2005, prohibits parties, “while the
lawsuit is pending before the court,” from actions including “[d]isrupting or withdrawing
the children from the school or day-care facility where the children are presently enrolled, without
the written agreement of both parents or an order of this Court.” See Travis Co. Standing Order
Regarding Children, Property and Conduct of the Parties (Travis Co. Dist. Clerk’s File No. 121,012
(Local Rules and Orders)) (effective Jan. 1, 2005). Although the parties’ 1997 divorce decree
predated the standing order, Michels alleged that Zeifman had made himself subject to the order by
filing a cross-petition in a second modification proceeding she had initiated in 2005 concerning their
other child.
5
On August 14, Michels obtained an ex parte temporary restraining order against
AISD.3 Four days later, on August 18, Zeifman filed a petition in intervention, motion to dismiss,
and motion for sanctions. Zeifman pleaded that he had a justiciable interest in Michels’s new lawsuit
as A.A.’s father and co-managing conservator, and as respondent and counter-petitioner in the
ongoing litigation. Zeifman moved to dismiss Michels’s suit as an improper attempt to circumvent
the district court’s jurisdiction over the divorce decree and this Court’s jurisdiction over “the issue
of [A.A.’s] education.”
Zeifman also sought sanctions under rule 13 of the Texas Rules of Civil Procedure,
chapters 9 and 10 of the Civil Practice and Remedies Code, and the district court’s inherent power.
He complained chiefly that Michels had filed a “frivolous and groundless” separate suit against
AISD, rather than seeking relief in the divorce and custody case, to circumvent the jurisdiction of
the district court and this Court, and in a manner deliberately calculated to avoid his knowledge or
participation for a short, but critical, period of time.
A hearing on Zeifman’s intervention, motion to dismiss, and motion for sanctions
was set on the third business day thereafter, Wednesday, August 23. On Monday, August 21,
Michels filed a rule 11 agreement with AISD, dated August 18, whereby AISD agreed not to permit
A.A. to be enrolled at or attend Bryker Woods “until such time as [AISD] is presented with a final,
non-appealable order expressly authorizing such enrollment and attendance,” in return for Michels’s
3
The temporary restraining order restrained AISD from:
1. Permitting [A.A.] to be enrolled at Bryker Woods Elementary School.
2. Permitting [A.A.] to attend classes at Bryker Woods Elementary School.
3. Taking any action which would facilitate or permit [A.A.’s] attendance at
Bryker Woods Elementary School.
6
agreement to dismiss her pending suit. Michels filed a notice of non-suit on August 22 and, on the
day of the hearing, filed a motion to strike Zeifman’s intervention. After a hearing in which only
argument was presented, the district court signed an “Order Confirming Nonsuit” and, by separate
order, granted Michels’s motion to strike Zeifman’s intervention, dismissed as moot his motion to
dismiss, and denied his motion for sanctions.
Zeifman appealed that order to this Court. See Zeifman, 229 S.W.3d at 468. In a
ruling handed down during the summer of 2007, we concluded that the district court abused
its discretion in striking his intervention. Id. Additionally, because this erroneous ruling had been
a predicate for the district court’s ruling on Zeifman’s sanctions motion, we remanded the sanctions
motion for further proceedings and instructed the district court to “carefully consider the facts
known by Michels at the time she filed suit against AISD when determining whether sanctions
are appropriate.” Id. However, it would be several years before Zeifman would return to his pending
sanction motion.
On August 21, 2006, around the same time Michels’s injunction action was being
litigated in the district court, Zeifman had filed in the remanded modification suit a “Motion to
Implement Third Court of Appeals Judgment and Opinion Concerning Educational Decisions
for A.A.,” requesting that our opinion in that case “be immediately implemented and that
[he] be authorized to re-enroll [A.A.] at Bryker Woods Elementary School . . . .” The district court
set aside the modification order, but otherwise denied Zeifman’s requested relief, effectively
returning the parties to the terms of the original divorce decree. Wanting more, Zeifman then
filed a petition for writ of mandamus in this Court. We denied Zeifman’s petition, explaining that
our order vacating the prior modification order left “the parties to resolve any disputes concerning
7
A.A.’s education according to their agreed-upon mechanisms in their original divorce decree.” In re
Zeifman, No. 03-06-00601-CV, 2006 Tex. App. LEXIS 11340, at *2 (Tex. App.—Austin Nov. 22,
2006, orig. proceeding) (mem. op.).
Shortly before we handed down our opinion in the injunction action, on June 8, 2007,
Zeifman and Michels signed agreed temporary orders in the modification suit providing that
A.A. “shall continue to be enrolled in and attend exclusively St. Andrew’s . . . , until and through
the time final trial of this case has been concluded.” The parties further stipulated “that regardless
of any ruling” in Zeifman’s appeal of the order striking his intervention in the AISD injunction suit,
A.A. “shall continue to be enrolled in and attend exclusively St. Andrew’s . . . during the pendency
of this suit . . . .”
Zeifman then filed a separate lawsuit against Michels, Hays, and two other lawyers
who had represented Michels in the litigation against him, Becky Beaver and appellee John Barrett,
seeking damages based on their involvement in the injunction action. On the defendants’ motions,
the district court granted summary judgment against all of Zeifman’s claims. Zeifman appealed that
order to this Court, and we affirmed. See Michels v. Zeifman, No. 03-08-00287-CV, 2009 Tex. App.
LEXIS 1017, at *2 (Tex. App.—Austin Feb. 12, 2009, pet. denied) (mem. op.). Zeifman also filed
grievances against the attorneys with the State Bar of Texas, which were summarily dismissed. He
also filed suit against an amicus attorney, alleging “fraud” and “gross negligence” in connection with
her representation of his other child in the divorce proceedings. The district court granted summary
judgment against Zeifman and sanctioned him for filing a frivolous lawsuit. Zeifman appealed
this order as well, and we once again affirmed. See Zeifman v. Nowlin, 322 S.W.3d 804, 812
(Tex. App.—Austin 2010, no pet.).
8
On September 1, 2010, more than three years after this Court’s opinion remanding
his sanction claims in the injunction suit, Zeifman pursued those claims again. An evidentiary
hearing was held. Eventually, the district court signed an order denying Zeifman’s sanctions motion
and instead awarding $10,000 each to Hays, Barrett, and Michels for their attorney’s fees incurred
in defending the motion. Zeifman appealed that order.
ANALYSIS
In two issues, Zeifman asserts that the district court abused its discretion in denying
his motion for sanctions, urging that he was entitled to sanctions under, respectively, Rule of
Civil Procedure 13 and chapter 10 of the Civil Practice and Remedies Code. See Tex. R. Civ. P. 13,
215; Tex. Civ. Prac. & Rem. Code §§ 10.001–.005. In a third issue, he argues that the district court
abused its discretion in awarding the appellees attorney’s fees against him. The appellees all counter
that the district court acted within its discretion in denying Zeifman’s motion and awarding them
attorney’s fees. Barrett and Hays also contend that Zeifman lacked standing to assert his motion for
sanctions. Finally, in a cross-point, Hays requests that we impose attorney’s fees against Zeifman
for filing a frivolous appeal.
Standing
Before we reach the merits, we consider the contention of Barrett and Hays
that Zeifman lacked standing to seek sanctions against them. Standing is a component of subject-
matter jurisdiction, and is reviewed de novo. Ford Motor Co. v. Butnaru, 157 S.W.3d 142, 147
(Tex. App.—Austin 2005, no pet.). In response to Zeifman’s motion for sanctions, Barrett and Hays
have each interposed pleas to the jurisdiction asserting that Zeifman had not been a party to
9
the injunction lawsuit and that AISD has been the sole defendant when the pleadings that form
the basis of his sanctions motion were filed and the TRO was obtained. Because rule 13 of the
Rules of Civil Procedure and chapter 10 of the Civil Practice and Remedies Code concern
appropriate punishment for “parties” that file lawsuits without merit, see Tex. R. Civ. P. 13, 215;
Tex. Civ. Prac. & Rem. Code § 10.001, Barrett and Hays argue that only the party against whom suit
is brought may seek sanctions. They further maintain that no Texas court has recognized the right
of a third-party to intervene in a case and seek sanctions for pleadings that were not filed against the
intervenor and conduct that occurred prior to the intervenor’s appearance. Hays likens Zeifman’s
efforts to obtain sanctions to intervening in a suit and thereafter asserting a claim for malicious
prosecution.4
Zeifman responds that a claim for malicious prosecution requires proof of “the
institution or continuation of civil proceedings against the plaintiff,” while rule 13 and chapter 10
sanctions do not contain similar, specific requirements entitling only particular parties to relief. See
Tex. R. Civ. P. 13 (“If a pleading, motion or other paper is signed in violation of this rule, the court,
upon motion or upon its own initiative, after notice and hearing, shall impose an appropriate
sanction.”), 215; Tex. Civ. Prac. & Rem. Code § 10.002 (“A party may make a motion for sanctions,
describing the specific conduct violating Section 10.001.”); see also Texas Beef Cattle Co. v. Green,
921 S.W.2d 203, 207 (Tex. 1996) (stating elements of malicious prosecution). Zeifman notes that
this Court already determined that he “had a justiciable interest, was a proper party to the suit,” and
therefore, could seek sanctions. See Zeifman, 229 S.W.3d at 468 (“Zeifman, as we have determined,
4
In fact, Zeifman did assert a claim of malicious prosecution against Hays, Barrett, and
Michels in separate proceedings. See Michels, 2009 Tex. App. LEXIS 1017, at *15–19 (holding that
Zeifman failed to establish first element of malicious prosecution claim).
10
was a proper party. Michels’s non-suit thus could not defeat or render moot his claims for sanctions
and for attorney’s fees . . . .”). Because we have previously ruled that Zeifman was a proper party
to the suit, and because nothing in the language of rule 13 or chapter 10 indicates that intervenors
may not seek relief under those provisions, we conclude that Zeifman had standing to pursue his
motion for sanctions. See id.
Standard of review
We review a trial court’s award or denial of sanctions for an abuse of discretion. Low
v. Henry, 221 S.W.3d 609, 614 (Tex. 2007). In matters committed to a district court’s discretion,
the test is whether the ruling was unreasonable or arbitrary or whether the court acted without
reference to any guiding rules or principles. Lake Travis Indep. Sch. Dist. v. Lovelace, 243 S.W.3d
244, 249 (Tex. App.—Austin 2007, no pet.). In deciding whether the denial of sanctions constitutes
an abuse of discretion, we examine the entire record, including the findings of fact and conclusions
of law, if any were made, reviewing the conflicting evidence in the light most favorable to
the trial court’s ruling and drawing all reasonable inferences in favor of the court’s judgment. Id.
at 249–50 (citing In re C.Z.B., 151 S.W.3d 627, 636 (Tex. App.—San Antonio 2004, no pet.)). The
party seeking sanctions has the burden of showing his right to relief. GTE Commc’n Sys. Corp.
v. Tanner, 856 S.W.2d 725, 729 (Tex. 1993).
Sanctions under rule 13
Zeifman sought sanctions against Hays and Barrett under rule 13 for filing suit for
injunctive relief against AISD and for doing so without providing notice to Zeifman. Under rule 13,
“[t]he signatures of attorneys or parties constitute a certificate by them that they have read the
11
pleading, motion, or other paper; that to the best of their knowledge, information, and belief formed
after reasonable inquiry the instrument is not groundless and brought in bad faith or groundless
and brought for the purpose of harassment.” Tex. R. Civ. P. 13. “If a pleading, motion or other
paper is signed in violation of this rule, the court, upon motion or upon its own initiative, after notice
and hearing, shall impose an appropriate sanction available under Rule 215-2b, upon the person who
signed it, a represented party, or both.” Id. Under rule 13, courts may “impose sanctions against
parties filing frivolous claims to deter similar conduct in the future and to compensate the aggrieved
party by reimbursing the costs incurred in responding to baseless pleadings.” Lovelace, 243 S.W.3d
at 254 (citing Scott & White Mem’l Hosp. v. Schexnider, 940 S.W.2d 594, 596–97 (Tex. 1996)
(per curiam)).
Groundlessness
In order to establish that Michels’s lawsuit against AISD was “groundless,” Zeifman
had the burden of showing that the suit had “no basis in law or fact and [was] not warranted
by good faith argument for the extension, modification, or reversal of existing law.” Tex. R. Civ.
P. 13; see Lovelace, 243 S.W.3d at 254. To determine if a pleading was groundless, the trial court
must objectively ask whether the party and counsel made a reasonable inquiry into the legal and
factual basis of the claim at the time the suit was filed. See Loeffler v. Lytle Indep. Sch. Dist.,
211 S.W.3d 331, 348 (Tex. App.—San Antonio 2006, pet. denied). Groundlessness is thus more
than an ultimate determination that the claim is not a winner. See Emmons v. Purser, 973 S.W.2d
696, 700 (Tex. App.—Austin 1998, no pet.).
Zeifman has argued that Michels’s suit against AISD was groundless because this
Court had already issued an opinion reversing the district court’s modification order giving Michels
12
sole control over educational decisions. Our opinion, Zeifman asserts, reinstated the original divorce
decree and terminated the effect of the Travis County standing order relied upon by Michels in
seeking the injunction.5 Zeifman contends that Michels’s sole purpose in suing AISD for injunctive
relief was to “evade the unfavorable judgment handed down by the Third Court of Appeals.”
Appellees respond that, at the time of filing, Michels’s attorneys believed, based on
their research of then-existing case law, that an appellate court judgment was not effective or
enforceable until the appellate process concludes and mandate has issued, thus leaving them
a window of time in which they could advance Michels’s interests under the modified decree. See
Edwards Aquifer Auth. v. Chemical Lime Ltd., 212 S.W.3d 683, 695–96 (Tex. App.—Austin 2006),
rev’d, 291 S.W.3d 392 (Tex. 2009) (“An appellate court judgment is not enforceable in the
lower court before mandate issues.” (citing In re Long, 984 S.W.2d 623, 625–26 (Tex. 1999)
(per curiam))). Hays described his research and conclusions on this issue during the hearing. We
are compelled to agree that, especially given the state of the case law existing at the time, this
position regarding the effect of our opinion and judgment was not objectively unsupported in law
or fact or a good-faith argument for such an application or extension of then-existing law.
In contending otherwise, Zeifman claims that “Hays agreed that even if the mandate
had not issued, the appellate court’s decision reinstated the original order.” However, Zeifman
overlooks or mischaracterizes Hays’s testimony from the sanctions hearing, which included the
following exchange:
5
The standing order provided that “[t]his entire order will terminate and will no longer be
effective once the court signs a final order.” Because a final order was signed in the original divorce
decree, Zeifman reasons, our opinion reversing the modification order reinstated the prior final order
and terminated the standing order.
13
Q: And was that your position on that date of August 10th that the agreed final
decree of divorce in that provision governed or that the order that had been
overturned by the Court of Appeals on May 25th, 2005, governed?
Hays: It was actually—that was the fall-back position. I firmly believe that the
mandate did not—because a mandate had not issued, Judge Meuerer’s order
was still in effect.
As for a legal or factual basis to seek an injunction against AISD in particular,
Zeifman points to Hays’s testimony regarding the research he conducted prior to seeking an
injunction against AISD:
I performed the research to see whether there was legal authority for being able to file
a lawsuit against a third party to prevent them from aiding and abetting another
party from violating a court order. And I found that there was authority that says
you can file a lawsuit against a third party to prevent them from aiding and abetting.
And once I saw that, that was the authority I was looking for. And that was the
justification for filing this suit against AISD.
Although Zeifman questions the validity of Hays’s conclusions and suggests that he should
have done more research, he points to no cases that would persuade us that appellees lacked a
good faith legal or factual basis for seeking relief against AISD. See Dike v. Peltier Chevrolet, Inc.,
343 S.W.3d 179, 191 n.15 (Tex. App.—Texarkana 2011, no pet.) (sanctions movant’s argument
that non-movant “failed to introduce evidence sufficient to support his claims . . . or to establish
the merit of the underlying claim . . . misapprehends the parties’ relative burdens”). Based on the
circumstances known to the appellees at the time of the filing, and given our deferential review of
acts committed to the district court’s discretion, we cannot conclude that the court abused its
discretion in concluding that the lawsuit was not groundless.
14
Bad faith or purpose of harassment
Even if the district court had concluded that the AISD lawsuit was groundless,
Zeifman would also have to establish that Hays and Barrett brought the suit in bad faith or for
the purpose of harassment. Under rule 13, “bad faith” requires the conscious doing of a wrong
for a dishonest, discriminatory, or malicious purpose. Robson v. Gilbreath, 267 S.W.3d 401, 407
(Tex. App.—Austin 2008, pet. denied). In deciding whether a pleading was filed in bad faith or for
the purpose of harassment, the trial court must consider the acts or omissions of the represented
party or counsel, not merely the legal merit of a pleading or motion. Parker v. Walton, 233 S.W.3d
535, 540 (Tex. App.—Houston [14th Dist.] 2007, no pet.). The party moving for sanctions must
prove the pleading party’s subjective state of mind. Thielemann v. Kethan, 371 S.W.3d 286, 294
(Tex. App.—Houston [1st Dist.] 2012, pet. denied). Bad faith does not exist when a party merely
exercises bad judgment or is negligent. Id. A party acts in bad faith if he has been put on notice
that his understanding of the facts may be incorrect and he does not make reasonable inquiry
before pursuing the claim further. Robson, 267 S.W.3d at 407. “Harass” is used in a variety of legal
contexts to describe words, gestures, and actions that tend to annoy, alarm, and verbally abuse
another person. Thielemann, 371 S.W.3d at 294 (citing Elkins v. Stotts-Brown, 103 S.W.3d 664, 669
(Tex. App.—Dallas 2003, no pet.)).
Courts presume that pleadings, motions, and other papers are filed in good faith,
and the party moving for sanctions has the burden of overcoming this presumption. See Tex. R.
Civ. P. 13, 215; Lovelace, 243 S.W.3d at 256 (citing Tanner, 856 S.W.2d at 731). However, direct
evidence of a sanctioned person’s subjective intent is not required to rebut the presumption. See
Keith v. Solls, 256 S.W.3d 912, 919 (Tex. App.—Dallas 2008, no pet.) (citing Schexnider v. Scott
15
& White Mem’l Hosp., 953 S.W.2d 439, 441 (Tex. App.—Austin 1997, no pet.)). Intent may be
shown by circumstantial evidence as well as direct evidence. Keith, 256 S.W.3d at 919. Under an
abuse of discretion standard, the trial court judges the credibility of the witnesses and may resolve
any conflicting testimony. Id.; Keever v. Finlan, 988 S.W.2d 300, 313–14 (Tex. App.—Dallas 1999,
pet. dism’d) (“The trial court’s choices among merely conflicting pieces of evidence cannot be an
abuse of discretion.”).
Zeifman contends that the record supported a finding that the appellees “chose to file
a lawsuit against AISD with the improper motive of controlling Zeifman’s actions and to restrict his
participation in his daughter’s education decisions . . . , circumventing the ruling of the appellate
court instead of seeking relief with the family law court or working within the confines of the
original divorce decree.” Zeifman further argues that the decision to file suit to enjoin AISD, instead
of working with Zeifman to resolve the parties’ disagreement pursuant to the divorce decree reveals
a “malicious, dishonest and discriminatory purpose constituting bad faith.”
Hays testified that he did not file the AISD lawsuit with the intent to frustrate, annoy,
or harm Zeifman. Instead, he explained, “[t]he intent was to prevent Mr. Zeifman from removing
[A.A.]. It was to keep [A.A.] in the school that she had been in for the previous two years and
not to disrupt her life. The focus was on keeping [A.A.] in school and not—the focus wasn’t on
Mr. Zeifman.” Hays further testified that, based on the evidence available to him, he “had a clear
indication” that Zeifman was planning to withdraw A.A. from her current school and that his
attorney would not stop Zeifman from acting. Zeifman admits that he was “prepared to enroll A.A.
in Bryker Woods,” but asserts that as of August 14, he had not actually done so, nor had he “shown
any signs of self-help other than instigating a letter-writing battle between attorneys.” In a letter to
16
Michels, however, Zeifman stated that he had “informed Brykerwoods of [A.A.’s] re-enrollment and
completed the necessary paperwork.”
Regarding Zeifman’s complaint that the appellees were attempting to circumvent this
Court’s ruling, the appellees maintain that they believed Zeifman lacked authority to unilaterally
enroll A.A. in Bryker Woods for at least three reasons: (1) the mandate on this Court’s decision
reversing the modification order had not yet issued; (2) the Travis County standing order prohibited
Zeifman from withdrawing A.A. from her current school without Michels’s agreement or a court
order; and (3) if the divorce decree were again in effect, which they did not believe was the case,
it would still require Zeifman and Michels to follow the recommendation of her then-current teacher
at St. Andrew’s. Thus, they argue that the injunction merely preserved the status quo. They also
note that we later rejected Zeifman’s belief that he was entitled to enroll [A.A.] in Bryker Woods
over Michels’s objection. See In re Zeifman, 2006 Tex. App. LEXIS 11340, at *2. Additionally,
they point out that they fully disclosed this Court’s opinion in their petition for injunctive relief and
explained to the district court why they believed the opinion was not yet enforceable.
Zeifman also complains that the appellees failed to provide notice to him as required
under the original divorce decree. However, at the time, the parties did not agree about whether or
not the original divorce decree was in effect, and therefore whether or not notice pursuant to that
decree would have been required. Hays further testified that he did not believe any of his actions
violated the divorce decree:
Q: In your opinion, does seeking a temporary injunction and not giving the other
parent notice, as you did in this case, violate the agreed decree of divorce and
notice provisions contained in it.
Hays: No, it does not.
17
Zeifman also complains that the appellees filed suit with knowledge that his
attorneys would be out of town. Specifically, Zeifman’s attorney had notified Michels’s attorney that
he would be out of town from August 14–17, 2006 to attend a family law conference. However,
Michels’s attorneys obtained a TRO against AISD on August 14, 2006. The appellees point out
that Zeifman notified Michels less than a week before the new school year was set to start on
August 15 that he had “informed Brykerwoods of [A.A.’s] re-enrollment and completed the
necessary paperwork.” Accordingly, the appellees argue that the district court could reasonably have
concluded that the appellees acted when they did, not to evade a challenge by Zeifman’s attorneys,
but because the school year was about to begin.
Although a different original fact-finder might have reached a different outcome on
this record, that is not the standard under which this Court is required to review the district court’s
decision. Viewing the evidence in the light most favorable to the district court’s ruling and drawing
all reasonable inferences in favor of that ruling, as we must, we cannot conclude that the
district court abused its discretion in its determination of appellees’ subjective state of mind,
concluding the injunction action was not filed in bad faith or with the intent to harass Zeifman. We
overrule Zeifman’s first issue. See Lovelace, 243 S.W.3d at 254–55 (finding no abuse of discretion
in failing to award sanctions even though suit was statutorily barred); see also Manning v. Enbridge
Pipelines (East Tex.) L.P., 345 S.W.3d 718, 729 (Tex. App.—Beaumont 2011, pet. denied) (finding
no abuse of discretion in trial court’s refusal to impose sanctions and noting that “[c]onsidering
the trial proceedings, the trial court is in a better position than this Court to decide whether to impose
sanctions”).
18
Sanctions under chapter 10
Zeifman also sought sanctions for the same conduct under chapter 10 of the
Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code §§ 10.001–.005. That chapter
provides as follows:
The signing of a pleading or motion as required by the Texas Rules of Civil
Procedure constitutes a certificate by the signatory that to the signatory’s best
knowledge, information, and belief, formed after reasonable inquiry:
(1) the pleading or motion is not being presented for any improper purpose, including
to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) each claim, defense, or other legal contention in the pleading or motion is
warranted by existing law or by a nonfrivolous argument for the extension,
modification, or reversal of existing law or the establishment of new law;
(3) each allegation or other factual contention in the pleading or motion has
evidentiary support or, for a specifically identified allegation or factual contention,
is likely to have evidentiary support after a reasonable opportunity for further
investigation or discovery; and
(4) each denial in the pleading or motion of a factual contention is warranted on the
evidence or, for a specifically identified denial, is reasonably based on a lack of
information or belief.
Id. § 10.001. Awards of attorney’s fees under the Civil Practice and Remedies Code require
essentially the same findings as does rule 13. Lovelace, 243 S.W.3d at 256. Although rule 13
requires a party to have filed a groundless pleading brought in bad faith or a groundless pleading for
harassment, sanctions under chapter 10 can be awarded if the suit was filed for an improper
purpose, even if the suit was not frivolous. See Alpert v. Crain, Caton & James, P.C., 178 S.W.3d
398, 411–12 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). However, having already decided
that the district court did not abuse its discretion in concluding that the lawsuit against AISD was
19
not groundless, frivolous, brought in bad faith, or brought for the purpose of harassment, we
similarly hold that the district court did not abuse its discretion in refusing to award sanctions under
this provision of the Civil Practice and Remedies Code.6 See Lovelace, 243 S.W.3d at 257 (holding
trial court did not abuse its discretion in refusing to award sanctions under chapter 10 after
concluding that suit was not “groundless, frivolous, brought in bad faith or brought for the purpose
of harassment” for purpose of sanctions under rule 13). We overrule Zeifman’s second issue.
Award of attorney’s fees
In a third issue,7 Zeifman argues that the district court erred in awarding $10,000 to
each of the appellees in attorney’s fees for successfully defending against his motion for sanctions
pursuant to chapter 10 of the Civil Practice and Remedies Code, which provides as follows:
The court may award to a party prevailing on a motion under this section the
reasonable expenses and attorney’s fees incurred in presenting or opposing the
motion, and if no due diligence is shown the court may award to the prevailing party
all costs for inconvenience, harassment, and out-of-pocket expenses incurred or
caused by the subject litigation.
Tex. Civ. Prac. & Rem. Code § 10.002(c).
6
Zeifman relies on Law Offices of Wendell Turley, P.C. v. French to support his claim
for sanctions under chapter 10. 164 S.W.3d 487, 491–92 (Tex. App.—Dallas 2005, no pet.). In the
case, the Dallas Court of Appeals affirmed a trial court’s order imposing sanctions against an
attorney that filed duplicative proceedings in two separate courts. Id. at 489. The Dallas Court
concluded that the trial court “could have determined appellants filed the Dallas lawsuit not to
protect their legal interests, but to improperly circumvent an imminent ruling from the Tarrant
County trial court poised to finally dispose of the same legal issues.” Id. at 492 (emphasis added).
By the same token, after a review of the evidence before it, we have concluded that the district court
could have concluded that the appellees did not file the AISD lawsuit for an improper purpose.
7
Michels and Hays suggest that Zeifman may have waived this issue because he did not list
it as a separate “issue presented” in his brief and, they assert, he provided insufficient legal authority
to support his argument. See Tex. R. App. P. 38.1(i). As Zeifman notes, “[t]he statement of an
issue or point will be treated as covering every subsidiary question that is fairly included.” See id.
R. 38.1(f). We conclude that Zeifman sufficiently briefed this issue.
20
Zeifman does not challenge the amount of attorney’s fees the district court
awarded—in fact, he stipulated below that $10,000 was a reasonable and necessary amount of
attorney’s fees for each of the appellees—but instead asserts that the district court abused its
discretion in awarding the appellees attorney’s fees at all. Other than complaining that the
district court’s award was predicated on an erroneous denial of his sanctions motion against
appellees, an assertion we have rejected above,8 Zeifman’s central complaint is that the
district court’s award penalized him for taking the exact actions which he believes this Court
instructed him to do. Zeifman points to the following statement in our opinion overturning the
district court’s ruling striking his petition in intervention:
In light of our observation that Michels’s conduct as alleged by Zeifman “is indeed
disturbing,” the district court on remand should carefully consider the facts known
by Michels at the time she filed suit against AISD when determining whether
sanctions are appropriate.
Zeifman, 229 S.W.3d at 468. Because this Court specifically instructed the district court to
“carefully consider the facts known by Michels,” Zeifman maintains that an award of Michels’s
attorney’s fees would be particularly inappropriate.
As the appellees point out, this Court’s statement did not refer to Michels’s
conduct, but rather to Michels’s conduct as alleged by Zeifman. The merits of Zeifman’s sanction
motion were not before this Court at that time. This Court did not render judgment on the sanctions
8
By the same token, Zeifman contends that the district court erred in not awarding him
his reasonable and necessary attorney’s fees incurred in connection with “responding to baseless
proceedings” and to “deter similar conduct in the future.” Because we have concluded that the
district court did not abuse its discretion in denying his motion for sanctions, it similarly did not err
in refusing to award him attorney’s fees.
21
issue, but instead remanded and instructed the district court to carefully consider the matter. The
district court did so and concluded that the evidence did not support the imposition of sanctions.
Though the term “prevailing party” is not explicitly defined in chapter 10, we
conclude that by successfully defending against Zeifman’s sanctions motion, each of the
appellees were “prevailing parties.” See TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432,
439 (Tex. 2011) (“Undefined terms in a statute are typically given their ordinary meaning . . . .”).
Zeifman does not dispute that the appellees were prevailing parties within the meaning of the statute
and he previously stipulated that their requested fees were reasonable and necessary. Accordingly,
we conclude the district court did not abuse its discretion in awarding attorney’s fees to the appellees
for successfully opposing Zeifman’s motion for sanctions. We overrule his third issue.
Hays’s cross-point
In a cross-point, Hays requests that we impose damages against Zeifman under rule 45
of our appellate procedure rules for filing a frivolous appeal. See Tex. R. App. P. 45 (“If the court
of appeals determines that an appeal is frivolous, it may—on motion of any party or on its
own initiative, after notice and a reasonable opportunity for response—award each prevailing party
just damages.”). “The question of whether to grant sanctions is a matter of discretion, which
we exercise with prudence and caution, and only after careful deliberation.” Jackson v. Hoffman,
312 S.W.3d 146, 156 (Tex. App.—Houston [14th Dist.] 2010, no pet.). We will impose sanctions
only in circumstances that are truly egregious. Jackson, 312 S.W.3d at 156. To determine whether
an appeal is frivolous, we “look at the record from the viewpoint of the advocate and decide whether
he had reasonable grounds to believe the case could be reversed.” Smith v. Brown, 51 S.W.3d 376,
381 (Tex. App.—Houston [1st Dist.] 2001, pet. denied).
22
While Zeifman was ultimately unsuccessful in this appeal, we conclude that
sanctions are not appropriate here. See Easter v. Providence Lloyds Ins. Co., 17 S.W.3d 788, 792
(Tex. App.—Austin 2000, pet. denied) (sanctions unwarranted against ultimately unsuccessful party
when she had reasonable expectation of reversal and there had been no showing that she pursued
appeal in bad faith). We deny Hays’s motion.
CONCLUSION
Having overruled each of issues presented, we affirm the district court’s judgment.
__________________________________________
Bob Pemberton, Justice
Before Justices Puryear, Pemberton, and Field
Affirmed
Filed: August 22, 2013
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