Scott P. Ogle v. Maeli Hector, A/K/A Maeli Arellano, A/K/A Maeli Johnson ( 2015 )

ACCEPTED
03-15-00455-CV
8390479
THIRD COURT OF APPEALS
AUSTIN, TEXAS
12/29/2015 11:54:22 AM
JEFFREY D. KYLE
CLERK
NO. 03-15-00455-CV
________________________________
FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS AUSTIN, TEXAS
FOR THE THIRD JUDICIAL DISTRICT12/29/2015 11:54:22 AM
OF TEXAS AT AUSTIN JEFFREY D. KYLE
Clerk
________________________________
SCOTT P. OGLE, Appellant
V.
MAELI HECTOR, a/k/a MAELI ARELLANO,
a/k/a MAELI JOHNSON, Appellee
________________________________
On Appeal from County Court at Law Number One
of Travis County, Texas
The Honorable Todd Wong
Presiding in Cause No. C-1-CV-14-011792
_____________________________________
APPELLANT’S BRIEF
Scott Ogle
TBN: 00797170
Law Office of Scott P. Ogle
2028 Ben White Blvd.
Austin, TX 78704
Phone: (512) 442-8833
Fax: (512) 442-3256
soglelaw@peoplepc.com
Appellant Pro Se
No Oral Argument Requested
IDENTITY OF PARTIES AND COUNSEL
The following is a complete list of all parties to the trial
court’s final judgment, as well as the names and
addresses of all trial and appellate counsel.
Trial Judge: The Honorable Todd Wong,
presiding judge, Travis County
Court Number One
Appellant: Scott P. Ogle
Appellant’s Trial and Scott Ogle
Appellate Counsel: TBN: 00797170
Law Office of Scott P. Ogle
2028 Ben White Blvd.
Austin, TX 78704
Appellee: Maeli Hector, a/k/a Maeli
Arrellano, a/k/a Maeli Johnson
Appellees’ Trial and Paul A. Batrice
Appellate Counsel: TBN: 24048344
Law Office of Paul Batrice
1114 Lost Creek Blvd., Ste. 440
Austin, Texas 78746
i
TABLE OF CONTENTS
page
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i.i
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iv
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
POINTS OF ERROR PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . .2
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . 4
ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . 5
I. The trial court erred when it awarded attorney fees to
Appellee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
A. Appellee Failed to Request Attorneys’ Fees. . . . . . . . . . . 5
B. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
C. Authority to Recover Attorney Fees. . . . . . . . . . . . . . . . .8
D. Controlling Rules and Statutes. . . . . . . . . . . . . . . . . . . . 9
E. Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
II. The amount of the attorneys’ fees awarded to Appellee
were unreasonable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
A. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ii
B. Controlling Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
C. Application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
III. The trial court erred when it granted
Appellee’s Motion for Summary Judgment
on Promissory Estoppel. . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
A. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
B. Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26
PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . 28
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
iii
TABLE OF AUTHORITIES
Cases page
Aaron Rents, Inc. v. Travis Cent. Appraisal Dist.,
212 S.W.3d 665 (Tex. App.—Austin 2006, no pet.). . . . . . 1.8
Acad. Corp. v. Interior Buildout & Turnkey Constr., Inc.,
21 S.W.3d 732 (Tex. App.—
Houston [14th Dist.] 2000, no pet.). . . . . . . . . . . . . . 21
Arthur Andersen & Co. v. Perry Equip. Corp.,
945 S.W.2d 812, 818 (Tex. 1997). . . . . . . . . . . . . . . . . . . 21, 22
Barnum v. Munson, Munson, Pierce and Cardwell, P.C.,
998 S.W.2d 284 (Tex. App.—
Dallas 1999, pet. denied). . . . . . . .10, 11, 12, 13, 15, 18
In re Bennett,
960 S.W.2d 35 (Tex. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Burnside Air Conditioning & Heating, Inc. v. T.S. Young Corp.,
113 S.W.3d 889 (Tex. App.—Dallas 2003, no pet.). . . . . . .21
C.M. Asfahl Agency v. Tensor, Inc.,
135 S.W.3d 768 (Tex. App.—
Houston [1st Dist.] 2004, no pet.). . . . . . . . . . . . . . . 21
Centeq Realty, Inc. v. Siegler,
899 S.W.2d 195 (Tex. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . 25
Cire v. Cummings,
134 S.W.3d 835 (Tex. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . 7
City of Keller v. Wilson,
168 S.W.3d 802 (Tex. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . 19
iv
City of Fort Worth v. Gause,
129 Tex. 25, 101 S.W.2d 221 (1937). . . . . . . . . . . . . . . . . . . . .6
Crain v. San Jacinto Sav. Ass’n,
781 S.W.2d 638 (Tex. App.—
Houston [14th Dist.] 1989, writ dism’d). . . . . . . . . 5-6
Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238 (Tex. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . 16
Eberstein v. Hunter,
260 S.W.3d 626 (Tex. App.–Dallas 2008, no pet.). . . . .23, 24
Ebner v. First State Bank of Smithville,
27 S.W.3d 287 (Tex. App.–Austin 2000, pet. denied). .26-27
English v. Fischer,
660 S.W.2d 521 (Tex. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . 26
Gorman v. Gorman,
966 S.W.2d 858 (Tex. App.—
Houston [1st Dist.] 1998, pet. denied). . . . . . . . .11, 13
Greene v. Young,
174 S.W.3d 291 (Tex. App.–
Houston [1st Dist.] 2005, pet. denied). . . . . . . . . . . .16
GTE Communications Sys. Corp. v. Curry,
819 S.W.2d 652 (Tex. App.—
San Antonio 1991, no writ). . . . . . . . . . . . . . . . . .11, 13
Holmstrom v. Lee,
26 S.W.3d 526 (Tex. App.–Austin 2000, no pet.). . . . . . . . 25
Keever v. Finlan,
988 S.W.2d 300 (Tex. App.–Dallas 1999, pet. dism’d). . . .10
v
Kennedy v. Kennedy,
125 S.W.3d 14 (Tex. App.– Austin 2002, pet. denied).17, 18
KPMG Peat Marwick v. Harrison County Hous. Fin. Corp.,
988 S.W.2d 746 (Tex. 1999). . . . . . . . . . . . . . . . . . . . . . . .25-26
Lear Siegler, Inc. v. Perez,
819 S.W.2d 470 (Tex. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . 25
Loeffler v. Lytle Indep. School Dist.,
211 S.W.3d 331 (Tex. App.–San Antonio 2006, no pet.). . 15
Low v. Henry,
221 S.W.3d 609 (Tex. 2007). . . . . . . . . . . . . . . . . . . . . . . 14, 15
Lundy v. Masson,
260 S.W.3d 482 (Tex. App.—
Houston [14th Dist.] 2008, pet. denied). . . . . . . . . . 19
In re M.A.N.M.,
231 S.W.3d 562 (Tex. App.—Dallas 2007, no pet.). . . . . . .21
McNally v. Guevara,
52 S.W.3d 195 (Tex. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Nixon v. Mr. Prop. Mgmt. Co.,
690 S.W.2d 546 (Tex. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . 25
Petco Animal Supplies, Inc. v. Schuster,
144 S.W.3d 554 (Tex. App.—Austin 2004, no pet.). . . . . . 21
Polansky v. Berenji,
393 S.W.3d 362 (Tex. App.–Austin 2012, no pet.). . . 7, 8, 18
Rivera v. Countrywide Home Loans, Inc.,
262 S.W.3d 834 (Tex. App.–Dallas 2008, no pet.). . . . .14-15
vi
Rizkallah v. Conner,
952 S.W.2d 580 (Tex. App.–
Houston [1st Dist.] 1997, no pet.). . . . . . . . . . . . . . . 23
Ryland Group, Inc. v. Hood,
924 S.W.2d 120 (Tex. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . 23
Spohn Hosp. v. Mayer,
104 S.W.3d 878 (Tex. 2003). . . . . . . . . . . . . . . . . . . . . . . 14, 15
State v. Estate of Brown,
802 S.W.2d 898 (Tex. App.–San Antonio 1991, no writ).6, 7
Stoner v. Thompson, 578 S.W.2d 679 (Tex. 1979). . . . . . . . . . . . . . . 6
Stukes v. Bachmeyer,
249 S.W.3d 461 (Tex. App.–Eastland 2007, no pet.). . . . . .19
Sudan v. Sudan,
199 S.W.3d 291 (Tex. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . 25
Toles v. Toles,
45 S.W.3d 252 (Tex. App.–
Dallas 2001, pet. denied). . . . . . . . . . . . . . . . . . . . . . 13, 15, 18
Tony Gullo Motors I, L.P. v. Chapa,
212 S.W.3d 299 (Tex.2006). . . . . . . . . . . . . . . . . . . . . . . . . . . .8
TransAmerican Natural Gas Corp. v. Powell,
811 S.W.2d 913 (Tex.1991). . . . . . . . . . . . . . . . . . . . . . . . . . .14
Travelers Indem. Co. of Conn. v. Mayfield,
923 S.W.2d 590 (Tex.1996) (orig. proceeding). . . . . . . . . . . 7
Twin City Fire Ins. Co. v. Vega–Garcia,
223 S.W.3d 762 (Tex. App.–Dallas 2007, pet. denied). . . .20
vii
Unifund CCR Partners v. Villa,
299 S.W.3d 92 (Tex. 2009) (per curiam). . . . . . . . . . . .7, 8, 17
Vazquez v. Vazquez,
292 S.W.3d 80 (Tex. App.–
Houston [14th Dist.] 2007, no pet.). . . . . . . . . . . . . . 20
Wal–Mart Stores, Inc. v. Canchola,
121 S.W.3d 735 (Tex. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . 19
Woodhaven Partners, Ltd. v. Shamoun & Norman, LLP.,
422 S.W.3d 821 (Tex. App.–Dallas 2014, no pet.). . . . .19-20
Zarsky v. Zurich Management, Inc.,
829 S.W.2d 398 (Tex. App.—
Houston [14 th Dist.] 1992, no writ). . . . . . . . . . . . . 10
Statutes
TEX. CIV. PRAC. & REM. CODE ANN. § 10.001(1) (West 2008) . . . . 9
TEX. CIV. PRAC. & REM. CODE ANN. §§ 10.002(b) (West 2008). . 16
TEX. CIV. PRAC. & REM. CODE ANN. § 10.002(c) (West 2008). . . . .9
TEX. CIV. PRAC. & REM. CODE ANN. §§ 10.003 (West 2008). . . . .16
TEX. CIV. PRAC. & REM. CODE ANN. § 10.004(a) (West 2008). . . . .9
TEX. CIV. PRAC. & REM. CODE ANN. § 10.004(c)(3) (West 2008). . 9
TEX. CIV. PRAC. & REM. CODE ANN. § 10.005 (West 2008). . .14, 15
Court Rules
TEX. R. CIV. P. 13. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10
viii
TEX. R.CIV. P. 45(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
TEX. R.CIV. P. 78 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
TEX. R.CIV. P. 83. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
TEX. R. CIV. P. 166a(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22, 25, 26
TEX. R. CIV. P. 215.2(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
TEX. R. CIV. P. 301 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
ix
STATEMENT OF THE CASE
On December 22, 2014, Appellant Pro Se Scott Ogle (“Ogle”
or “Appellant”) filed suit in Travis County Court Number One
against Maeli Hector, a/k/a Maeli Arellano, a/k/a Maeli Johnson
(“Hector” or “Appellee”), alleging breach of contract. [C.R. 11-14].
Hector timely answered on January 30, 2015. [C.R. 46-49]. Hector
filed her Amended Motion for Summary Judgment on May 6,
2015. [C.R. 259-322]. Ogle filed his Response to the motion on
May 20, 2015. [C.R. 349-362]. Hector’s Motion for Summary
Judgment was granted by the trial court on June 5, 2015. [C.R.
469].1
Hector then filed her Motion for Summary Judgment as to
Promissory Estoppel on June 4, 2015. [C.R. 434-461]. Ogle filed his
response to said motion on June 24, 2015. [497-502]. The trial court
granted Hector’s Motion for Summary Judgment as to Promissory
1
The trial court grounded its order granted summary judgment on the
affirmative defense of discharge. Specifically excluded from the order
granting summary judgment was Ogle’s promissory estoppel claim. [C.R.
469].
1
Estoppel. [C.R. 503].2 Ogle timely filed his Notice of Appeal on
July 21, 2015. [C.R. 511]. This timely appeal ensued.
POINTS OF ERROR PRESENTED
POINT OF ERROR ONE
I. The trial court erred when it awarded attorney fees to
Appellee.
POINT OF ERROR TWO
II. The amount of the attorneys’ fees awarded to Appellee
were unreasonable.
POINT OF ERROR THREE
III. The trial court erred when it granted Appellee’s Motion
for Summary Judgment on Promissory Estoppel.
STATEMENT OF FACTS
On or about November 21, 2014, Ogle and Hector orally and
via text message agreed to settle an earlier lawsuit between the
two. [C.R. 501]. The terms generally held that Hector would
submit to a lie detector test in return for Ogle’s taking a non-suit
2
Two different orders were signed by the trial court in granting summary
judgment on Ogle’s promissory estoppel claim, one dated July 1, 2015,
[C.R. 503], and one dated July 8, 2015. [C.R. 505]. The only difference
between the two orders being the July 8, 2015, order purported to grant
attorney fees, costs, and post-judgment interest to Appellee. [C.R. 505].
2
in that prior lawsuit, as well as the payment of Hector’s attorney
fees in the amount of $2500. [C.R. 501]. However, after Ogle paid
the $2500 attorney fees and non-suited that prior lawsuit, Hector
refused to take the agreed-upon lie detector test. [C.R. 501]. Due
to the statute of limitations having passed, Ogle was unable to
refile his suit, and Hector refused to reimburse Ogle for the $2500
he had previously paid. [501].
Ogle filed the instant breach of contract and promissory
estoppel suit on December 22, 2015. [C.R. 11-14]. Hector timely
answered on January 30, 2015. [C.R. 46-49]. In her Answer, Hector
did not plead for or request attorney fees. [C.R. 46-49].
Hector filed her Amended Motion for Summary Judgment
on May 6, 2015. [C.R. 259-322]. Ogle filed his Response to the
motion on May 20, 2015. [C.R. 349-362]. Hector’s Motion for
Summary Judgment was granted by the trial court on June 5,
2015. [C.R. 469]. In its Order, the trial court specifically grounded
the judgment on the affirmative defense of discharge, and
specifically excluded Ogle’s promissory estoppel claim from the
3
summary judgment. [C.R. 469]. The trial court did not award
attorney fees in that June 5, 2015 order. [C.R. 469-70].
Still prior to the end of discovery, Hector then filed her
Motion for Summary Judgment as to Promissory Estoppel on
June 4, 2015. [C.R. 434-461]. Ogle filed his response on June 24,
2015. [497-502]. The trial court granted Hector’s Motion for
Summary Judgment as to Promissory Estoppel. [C.R. 503]. The
Order Granting Summary Judgment as to Promissory Estoppel
purported to award Hector attorney fees in the amount of $10,150,
courts costs in the amount of $787.42, and post-judgment interest
at the rate of five percent, compounded annually. [C.R. 505]. At
no time did Hector ever file an Amended Answer in the trial court
this cause. [C.R. 2-7].
SUMMARY OF THE ARGUMENT
Because the award of attorney fees did not match the
pleadings, were affirmatively waived by Appellee, were not
supported by sufficient evidence, or were assessed without
opportunity to oppose, the trial court abused its discretion in
4
awarding those fees.
Because Ogle submitted sufficient evidence to raise a
genuine issue of material fact regarding his promissory estoppel
claim, the trial court abused its discretion in granting Appellee’s
Motion for Summary Judgement as to Promissory Estoppel.
ARGUMENT AND AUTHORITIES
POINT OF ERROR ONE (RESTATED)
I. The trial court erred when it awarded attorney fees to
Appellee.
A. Appellee Failed to Request Attorneys’ Fees
The trial court erred in granting attorney fees primarily due
to the fact that in her Original Answer, Hector failed to plead for
or request attorneys’ fees. [C.R. 46-49].3 Pleadings determine the
issues and parameters of a contest. Crain v. San Jacinto Sav. Ass’n,
781 S.W.2d 638, 639 (Tex. App.—Houston [14th Dist.] 1989, writ
3
Reiterating this point, in her Motion for Summary Judgment as to
Promissory Estoppel, Hector affirmatively waived the recovery of any
attorney fees. On page three of the motion, Hector states that “Defendant
waives all causes of action and relief not requested in this Motion for
Summary Judgment. . . .Defendant is not requesting attorney’s fees at this
time.” [C.R. 436].
5
dism’d); see generally TEX. R.CIV. P. 45(a), 78 & 83. Hector never
filed an Amended Answer in this cause. [C.R. 2-7]. Thus, the
active pleading at the time the trial court entered its award of
attorney’s fees did not provide a basis for the assessment of
attorney fees.4
A judgment must be supported by the pleadings and, if not
so supported, it is void. City of Fort Worth v. Gause, 129 Tex. 25, 29,
101 S.W.2d 221, 223 (1937). A party may not be granted relief in
the absence of pleadings to support that relief. Stoner v. Thompson,
578 S.W.2d 679, 682–83 (Tex. 1979). A judgment, absent issues
tried by consent, must conform to the pleadings. TEX. R. CIV. P.
301; State v. Estate of Brown, 802 S.W.2d 898, 900 (Tex. App.–San
Antonio 1991, no writ). Absent a mandatory statute, a trial court’s
jurisdiction to render a judgment for attorneys’ fees must be
invoked by pleadings, and a judgment not supported by
4
Note that the affirmative waiver of her attorneys’ fees distinguishes this
case from the rule set forth by the Texas Supreme Court in McNally, where
it held that a party’s mere omission of one of his claims from a motion for
summary judgment does not waive the claim because a party can always
move for partial summary judgment. McNally v. Guevara, 52 S.W.3d 195,
196 (Tex. 2001).
6
pleadings requesting an award of attorney’s fees is a nullity.
Estate of Brown, 802 S.W.2d at 900. Because the order awarding
Hector her attorneys’ fees here was a nullity, this Court should
reverse the assessment of attorneys’ fees and enter a take-nothing
judgment against Hector. Id. Alternative arguments are presented
below.
B. Standard of Review
This Court will review a trial court’s award of attorneys’
fees for abuse of discretion. Travelers Indem. Co. of Conn. v.
Mayfield, 923 S.W.2d 590, 593 (Tex.1996) (orig. proceeding);
Polansky v. Berenji, 393 S.W.3d 362, 367 (Tex. App.–Austin 2012, no
pet.). this Court will also review a trial court’s imposition of
sanctions for abuse of discretion. Cire v. Cummings, 134 S.W.3d
835, 838 (Tex. 2004); Polansky, 393 S.W.3d at 367. A trial court
abuses its discretion if its decision is arbitrary, unreasonable, and
without reference to guiding principles, or if it rules without
supporting evidence. Unifund CCR Partners v. Villa, 299 S.W.3d 92,
97 (Tex. 2009) (per curiam); Polansky, 393 S.W.3d at 367. This
7
Court will review the record to determine whether the trial court
followed guiding rules and principles. Unifund CCR Partners, 299
S.W.3d at 97; Polansky, 393 S.W.3d at 367. The trial court does not
abuse its discretion if it bases its decision on conflicting evidence
and some evidence supports its decision. Unifund CCR Partners,
299 S.W.3d at 97; Polansky, 393 S.W.3d at 367. But if its decision is
contrary to the only permissible view of probative, properly
admitted evidence, then this Court must find that the trial court
has abused its discretion. Unifund CCR Partners, 299 S.W.3d at 97;
Polansky, 393 S.W.3d at 367.
C. Authority to Recover Attorney Fees
Attorney’s fees may be recovered only if permitted by
statute or contract. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d
299, 310–11 (Tex.2006) (“Absent a contract or statute, trial courts
do not have inherent authority to require a losing party to pay the
prevailing party’s fees.”); Polansky, 393 S.W.3d at 368. In her
Amended Motion for Summary Judgment, Hector requested
attorney fees under rule 13 of the Texas Rules of Civil Procedure,
8
and sections 10.002(c) and 10.004(c)(3) of the Texas Civil Practice
and Remedies Code. [C.R. 261]. TEX. R. CIV. P. 13; TEX. CIV. PRAC.
& REM. CODE ANN. §§ 10.002(c), 10.004(c)(3) (West 2002).
D. Controlling Rules and Statutes
Chapter 10 of the Civil Practice & Remedies Code provides
in pertinent part: “A court that determines that a person has
signed a pleading or motion in violation of Section 10.001 may
impose a sanction on the person, a party represented by the
person, or both.” TEX. CIV. PRAC. & REM. CODE ANN. § 10.004(a).
Sanctions under Chapter 10 are authorized if the evidence
establishes that a pleading or motion was brought for an
improper purpose. Id. § 10.001(1). Reasonable inquiry should be
made by the party and attorney to ensure that the pleading is not
filed to harass, delay, or increase the cost of the litigation. Id.
Similarly, Rule 13 provides that, if a pleading, motion, or
other paper is filed in violation of the rule, the trial court shall
impose an appropriate sanction “upon the person who signed it,
a represented party, or both.” TEX. R. CIV. P. 13. Rule 13
9
authorizes sanctions if the evidence establishes that a pleading is
either (1) groundless or brought in bad faith or (2) groundless and
brought to harass. TEX. R. CIV. P. 13. Groundless “means no basis
in law or fact and not warranted by good faith argument for the
extension, modification, or reversal of existing law.” TEX. R. CIV.
P. 13.5
E. Discussion
1. Fees under Rule 13
Rule 13 imposes a duty on the trial court to point out with
particularity the acts or omissions on which sanctions are based.”
Zarsky v. Zurich Management, Inc., 829 S.W.2d 398, 399 (Tex.
App.—Houston [14 th Dist.] 1992, no writ); see also Keever v.
Finlan, 988 S.W.2d 300, 312 (Tex. App.–Dallas 1999, pet. dism’d)
(accord). Requiring the trial court to state the particulars of the
good cause for imposing sanctions is mandatory. Barnum v.
Munson, Munson, Pierce and Cardwell, P.C., 998 S.W.2d 284, 287
5
Rule 13 allows that where a trial court finds a violation of that rule, the
court shall impose an appropriate sanction available under Rule 215.2(b)
of the Texas Rules of Civil Procedure. TEX. R. CIV . P. 13, 215.2(b).
10
(Tex. App.—Dallas 1999, pet. denied) (trial court’s judgment must
state particulars of good cause for imposing sanctions); Gorman v.
Gorman, 966 S.W.2d 858, 867–68 (Tex. App.—Houston [1st Dist.]
1998, pet. denied) (trial court must state with particularity good
cause for finding that pleadings upon which sanctions are based
are groundless, frivolous, and brought for purposes of
harassment); GTE Communications Sys. Corp. v. Curry, 819 S.W.2d
652, 654 (Tex. App.—San Antonio 1991, no writ). A mere
statement in the order that good cause was shown is insufficient
to sustain the sanctions order. GTE, 819 S.W.3d at 654.
In Barnum, the Plaintiff, who was convicted and sentenced
for attempted murder, sued his appellate counsel for legal
malpractice. Barnum, 998 S.W.2d at 286. Former counsel filed a
motion for judgment on the pleadings and for sanctions, which
were granted by the trial court. Id. The trial court subsequently
entered judgment dismissing Barnum’s claims for malpractice as
frivolous and/or malicious and assessed a $1000 sanction against
Barnum for reasonable attorney’s fees and litigation expenses
11
pursuant to Rule 13 of the Rules of Civil Procedure and section
14.006 of the Civil Practices and Remedies Code. Id. Thus, the trial
court’s bill of costs assessed $1,000 in sanctions and costs of $286
against Barnum. Id.
In regards to the attorney’s fees and costs assessed, the
judgment stated:
It is further ordered that Defendants are hereby awarded
the sum of $1,000 as sanctions against Plaintiff for
reasonable attorney’s fees and expenses of litigation
pursuant to the provisions of Rule 13 of the Texas Rules of
Civil Procedure and § 14.006 of the Texas Civil Practice and
Remedies Code.
Id. at 287. Because the judgment failed to set forth the particulars
of the “good cause” for imposing sanctions against Barnum as
required by Rule 13, the court of appeals held that the trial court
had abused its discretion in imposing the attorney’s fees as
sanctions. Id. The court of appeals reversed and rendered the
award of $1000 in sanctions. Id.
Here, the portion of the order granting summary judgment
and assessing attorney fees states in its entirety:
IT IS FURTHER ORDERED that Defendant recovers
12
judgment against Plaintiff in the amount of $10,150 Dollars,
as attorney fees for the benefit of Defendant Maeli Hector.
[C.R. 505] (emphasis in original). The judgment ordering fees fails
to meet the mandatory requirements under Rule 13. Barnum, 998
S.W.2d at 287; Gorman, 966 S.W.2d at 867; GTE Communications,
819 S.W.2d at 654. Moreover, the judgment here contains even
less information than the judgment in Barnum, in that it neglects
to even reference the rule or statutory authority by which the
attorney’s fees were assessed. C.F. Barnum, 998 S.W.2d at 287.
Since the judgment here fails to comply with the mandatory
requirements set forth in Rule 13, the trial court abused its
discretion in assessing attorney’s fees. Id.; see also Toles v. Toles, 45
S.W.3d 252, 267 (Tex. App.–Dallas 2001, pet. denied) (reversing
assessment of attorney’s fees as sanctions and rendering take-
nothing judgment). Because the trial court abused its discretion in
assessing attorney’s fees as sanctions under Rule 13, this Court
should reverse the assessment of attorney’s fees and render a
take-nothing judgment against Hector. Toles v. Toles, 45 S.W.3d
252, 267; Barnum, 998 S.W.2d at 287.
13
2. Fees under Chapt 10 Civ. Prac. & Rem. Code
Hector cited to various provisions of Chapter 10 of the Civil
Practices and Remedies Code in her request for attorney fees.
Imposition of sanctions under Chapter 10 also is reviewed for
abuse of discretion. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007).
“To determine if the sanctions were appropriate or just, the
appellate court must ensure there is a direct nexus between the
improper conduct and the sanction imposed.” Id. (citing Spohn
Hosp. v. Mayer, 104 S.W.3d 878, 882 (Tex. 2003), and TransAmerican
Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex.1991)). The
nexus requirement ensures that the sanction is “directed against
the abuse and toward remedying the prejudice caused [to] the
innocent party.” TransAmerican, 811 S.W.2d at 917. Additionally,
the sanction must not be excessive. Id.
Notably, under Chapter 10, a trial judge must specifically
detail the sanctionable conduct in its order and explain the basis
for the sanction imposed. TEX. CIV. PRAC. & REM. CODE ANN. §
10.005 (West 2008); Rivera v. Countrywide Home Loans, Inc., 262
14
S.W.3d 834, 842 (Tex. App.–Dallas 2008, no pet.). Failure to set
forth the conduct that forms the basis for the sanction is an abuse
of discretion. Id.; Loeffler v. Lytle Indep. School Dist., 211 S.W.3d 331,
349 (Tex. App.–San Antonio 2006, no pet.). As set forth above, the
order assessing attorneys’ fees against Ogle does not mention any
sanctionable conduct on the part Ogle, much less describe any
“direct nexus” between that conduct and the sanctions imposed.
Low, 221 S.W.3d at 614; Spohn Hosp., 104 S.W.3d at 882. In failing
to follow the law and guiding principles applicable to attorney
fees sanctions under Chapter 10, the trial court abused its
discretion in assessing those fees. TEX. CIV. PRAC. & REM. CODE
ANN. § 10.005; Low, 221 S.W.3d at 614; Spohn Hosp., 104 S.W.3d at
882; Rivera, 262 S.W.3d at 842; Loeffler, 211 S.W.3d at 349. Because
the trial court abused its discretion in assessing attorney’s fees as
sanctions under Chapter 10, this Court should reverse the
assessment of attorney’s fees and render a take-nothing judgment
against Hector. Toles v. Toles, 45 S.W.3d 252, 267; Barnum, 998
S.W.2d at 287.
15
3. Fees Under the Court’s Inherent Powers
Because this Court must consider “whether the court acted
without reference to any guiding rules and principles,” Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985), it must
also consider whether the trial court could have appropriately
imposed sanctions on its own initiative without a motion. A court
may impose sanctions on its own initiative under civil practice
and remedies code chapter 10, Texas Rules of Civil Procedure 13
and 191.3, and its own inherent power, but it first must provide
notice and a show-cause hearing to the person to be sanctioned.
TEX. CIV. PRAC. & REM. CODE ANN. §§ 10.002(b), .003 (West 2008);
Tex.R. Civ. P. 13; see also In re Bennett, 960 S.W.2d 35, 40 (Tex.
1997); Greene v. Young, 174 S.W.3d 291, 298 (Tex. App.–Houston
[1st Dist.] 2005, pet. denied) (“The traditional due process
protections of notice and hearing are also required before a trial
court can impose sanctions on a party pursuant to its inherent
power to sanction.”). Furthermore, “[a] court cannot invoke its
inherent power to sanction without some evidence and factual
16
findings that the conduct complained of significantly interfered
with the court’s legitimate exercise of one of its traditional core
functions.” Kennedy v. Kennedy, 125 S.W.3d 14, 19 (Tex. App.–
Austin 2002, pet. denied).
In this case, it is undisputed that the trial court never
noticed or held a court-initiated evidentiary hearing on sanctions.
The attorneys’ fees order is entitled “Order Granting Summary
Judgment as to Promissory Estoppel,” and it notes that
the Court considered Defendant’s Motion for Summary
Judgment as to Promissory Estoppel, Plaintiff’s Response,
the evidence and argument presented by the parties, and
finds that Defendant’s Motion is GRANTED, and makes the
following findings:
***
IT IS FURTHER ORDERED that Defendant recover
judgment against Plaintiff in the amount of $10,150 Dollars, as
attorney fees for the benefit of Maeli Hector.
Nevertheless, to the extent that the trial court imposed sanctions
on its own initiative without (1) notice issued before the hearing,
(2) an evidentiary hearing, or (3) factual findings, it abused its
discretion. See Unifund CCR, 299 S.W.3d at 98 (holding trial court
abused its discretion by assessing sanctions based on inadmissible
17
document); Polansky, 393 S.W.3d at 370 (holding court abused its
discretion if it assessed attorney fees sanctions under inherent
powers without notice, hearing, and factual findings); Kennedy,
125 S.W.3d at 19 (holding court erred by striking pleadings
without evidence that complained-of conduct significantly
interfered with court’s legitimate exercise of traditional core
function). Because the trial court abused its discretion in assessing
attorney’s fees as sanctions under Rule 13, this Court should
reverse the assessment of attorney’s fees and render a take-
nothing judgment against Hector. Toles, 45 S.W.3d 252, 267;
Barnum, 998 S.W.2d at 287.
POINT OF ERROR TWO (RESTATED)
II. The amount of the attorneys’ fees awarded to Appellee
were unreasonable.
A. Standard of Review
An appellate court will review the amount of attorney’s fees
awarded under a legal-sufficiency standard. Aaron Rents, Inc. v.
Travis Cent. Appraisal Dist., 212 S.W.3d 665, 671 (Tex.
App.—Austin 2006, no pet.). In conducting a legal-sufficiency
18
review, the court will consider the evidence in the light most
favorable to the finding under review and indulge every
reasonable inference that would support it. City of Keller v. Wilson,
168 S.W.3d 802, 822 (Tex. 2005). If more than a scintilla of
evidence supports the challenged finding, the legal-sufficiency
challenge fails. Wal–Mart Stores, Inc. v. Canchola, 121 S.W.3d 735,
739 (Tex. 2003); see also Lundy v. Masson, 260 S.W.3d 482, 491 (Tex.
App.—Houston [14th Dist.] 2008, pet. denied) (when party
challenges sufficiency of evidence supporting adverse finding on
issue on which she did not have burden of proof, party must
demonstrate no evidence supports adverse finding).
B. Controlling Law
Reasonableness of attorney’s fees is a fact question and
must be supported by competent evidence. Stukes v. Bachmeyer,
249 S.W.3d 461, 469 (Tex. App.–Eastland 2007, no pet.). “Texas
law is clear that ‘[t]he issue of reasonableness and necessity of
attorney’s fees requires expert testimony.’ “Woodhaven Partners,
Ltd. v. Shamoun & Norman, LLP., 422 S.W.3d 821, 830–31 (Tex.
19
App.–Dallas 2014, no pet.) (quoting Twin City Fire Ins. Co. v.
Vega–Garcia, 223 S.W.3d 762, 770–71 (Tex. App.–Dallas 2007, pet.
denied)). A judgment awarding attorneys’ fees may be supported
solely by the attorney’s testimony. Vazquez v. Vazquez, 292 S.W.3d
80, 86 (Tex. App.–Houston [14th Dist.] 2007, no pet.).
In determining the reasonableness of attorney’s fees, the
following factors may be considered: (1) the time and labor
required, the novelty and difficulty of the questions involved, and
the skill required to perform the legal service properly; (2) the
likelihood that the acceptance of the particular employment will
preclude other employment by the lawyer; (3) the fee customarily
charged in the locality for similar legal services; (4) the amount
involved and the results obtained; (5) the time limitations
imposed by the client or by the circumstances; (6) the nature and
length of the professional relationship with the client; (7) the
experience, reputation, and ability of the lawyer or lawyers
performing the services; and (8) whether the fee is fixed or
contingent on results obtained or the uncertainty of collection
20
before the legal services have been rendered. Arthur Andersen &
Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997). A
factfinder is not required to consider all of these factors in every
case; they simply constitute guidelines to be considered, not
elements of proof. Petco Animal Supplies, Inc. v. Schuster, 144
S.W.3d 554, 567 (Tex. App.—Austin 2004, no pet.); Acad. Corp. v.
Interior Buildout & Turnkey Constr., Inc., 21 S.W.3d 732, 742 (Tex.
App.—Houston [14th Dist.] 2000, no pet.). Thus, it is not
necessary that the record include evidence on each of the factors.
See Burnside Air Conditioning & Heating, Inc. v. T.S. Young Corp.,
113 S.W.3d 889, 897–98 (Tex. App.—Dallas 2003, no pet.); Acad.
Corp., 21 S.W.3d at 742.
In addition to the above enumerated factors, judges may
consider the entire record and draw upon their common
knowledge and experience as lawyers and judges. See In re
M.A.N.M., 231 S.W.3d 562, 567 (Tex. App.—Dallas 2007, no pet.);
C.M. Asfahl Agency v. Tensor, Inc., 135 S.W.3d 768, 802 (Tex.
App.—Houston [1st Dist.] 2004, no pet.).
21
C. Application
Here, the affidavit of Hector’s attorney in support of her
request for attorneys’ fees sets forth in pertinent part that counsel
based on his personal knowledge, he is the attorney for Hector; he
has ten years experience as an attorney in Texas; customary rates
for attorneys with such experience is $350 per hour; he had spent
29 hours defending the lawsuit up to the motion for summary
judgment; and, that $10,150 is a reasonable and customary
attorney fee for the work he had completed. [C.R. 66].
Initially, counsel’s affidavit addressed only the first and
seventh factors set forth in Arthur Anderson regarding the
determination of the reasonableness of attorneys’ fees. Arthur
Andersen, 945 S.W.2d at 818. Further, a trial court may grant
summary judgment based on uncontroverted testimonial
evidence “if the evidence is clear, positive and direct, otherwise
credible and free from contradictions and inconsistencies, and
could have been readily controverted.” See TEX. R. CIV. P. 166a(c).
A conclusory statement is one that does not provide the
22
underlying facts to support the conclusion. Rizkallah v. Conner, 952
S.W.2d 580, 587 (Tex. App.–Houston [1st Dist.] 1997, no pet.).
Conclusory statements in affidavits are not competent evidence
to support a summary judgment because they are not credible or
susceptible to being readily controverted. See Ryland Group, Inc.
v. Hood, 924 S.W.2d 120, 122 (Tex. 1996).
Counsel’s affidavit sets forth his work experience and
training, but fails to set forth the factual support for his
conclusory statement regarding either the hourly rate he claims
is customary; or the duties performed in the 29 hours spent
defending the lawsuit or the necessity of those duties. Eberstein v.
Hunter, 260 S.W.3d 626, 630 (Tex. App.–Dallas 2008, no pet.). In
Eberstein, the trial court awarded attorneys’ fees to Appellee,
whose attorney filed his affidavit in support of her request for
attorney’s fees. The affidavit detailed counsel’s work experience
and training and indicates he was engaged to represent Appellee
to bring this action for unpaid contractual alimony. Id. The
affidavit further stated that the Appellee was entitled to recover
23
reasonable attorney’s fees incurred for bringing this proceeding
pursuant to a provision in the agreement incident to divorce.
Counsel then opined “a reasonable fee for representation of
[Appellee] in the present proceeding is the sum of Fifty Thousand
Dollars ($50,000), through the entry of final judgment pursuant to
the [motion for summary judgment].” Id.
The court of appeals recognized that “[t]he affidavit,
however, provides absolutely no factual basis for [counsel’s
opinion. We therefore conclude the affidavit was not competent
evidence to support summary judgment on [Appellee’s] claim for
attorney’s fees.” Id. As the court found in Eberstein, so should this
Court find here. Id. This Court should reverse the attorneys’ fees
awarded and render a take-nothing verdict against Hector.
POINT OF ERROR THREE (RESTATED)
III. The trial court erred when it granted Appellee’s Motion
for Summary Judgment as to Promissory Estoppel.
A. Standard of Review
Under the traditional standard, a summary-judgment
motion is properly granted when the movant establishes that
24
there are no genuine issues of material fact to be decided and that
he is entitled to judgment as a matter of law. TEX. R. CIV. P.
166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991);
Holmstrom v. Lee, 26 S.W.3d 526, 530 (Tex. App.–Austin 2000, no
pet.). In reviewing a summary judgment, an appellate court must
accept as true all evidence favoring the nonmovant, indulging
every reasonable inference and resolving all doubts in the
nonmovant’s favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546,
548–49 (Tex. 1985). A defendant moving for summary judgment
must negate as a matter of law at least one element of each of the
plaintiff’s theories of recovery or plead and prove as a matter of
law each element of an affirmative defense. See Centeq Realty, Inc.
v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). If the defendant meets
this burden, the burden shifts to the plaintiff to present evidence
raising a fact issue. See id.
This Court must review de novo the entire record in the light
most favorable to the nonmovant, indulging every reasonable
inference and resolving any doubts against the motion. Sudan v.
25
Sudan, 199 S.W.3d 291, 292 (Tex. 2006); KPMG Peat Marwick v.
Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).
All theories in support of or in opposition to a motion for
summary judgment must be presented in writing to the trial
court. See TEX. R. CIV. P. 166a(c).
B. Discussion
In his response to Hector’s Motion for Summary Judgment
as to Promissory Estoppel, Ogle provided an affidavit in support.
[C.R. 501]. In that affidavit, Ogle swore that he had personal
knowledge of the following:
1) [Hector] agreed to take a lie detector test in exchange for
the dismissal of a lawsuit against her and a payment to her
of $2500;
2) [Ogle] relied upon that promise; and
3) relying on that promise was detrimental to [Ogle].
[C.R. 501].
“The requisites of promissory estoppel are: (1) a promise, 2)
foreseeability of reliance thereon by the promisor, and (3)
substantial reliance by the promisee to his detriment.” English v.
Fischer, 660 S.W.2d 521, 524 (Tex. 1983); Ebner v. First State Bank of
26
Smithville, 27 S.W.3d 287, 302 (Tex. App.–Austin 2000, pet.
denied).
Here, competent summary judgment evidence provided by
Ogle–which must be viewed in the light most favorable to the
nonmovant–presented a genuine issue of material fact as to each
and every element of his promissory estoppel claim. English, 660
S.W.2d at 524; Ebner, 27 S.W.3d at 302.
PRAYER
PREMISES CONSIDERED, Appellant Scott Ogle
respectfully requests that this Court sustain the points of error in
this brief and that this Court alternatively, reverse the trial court’s
Summary Judgment on Promissory Estoppel in this case and
remand to the trial court for trial; reverse the attorneys’ fees
awarded to Appellee and render a take-nothing judgment against
her; or, find the amount of the attorneys’ fees assessed to be
unreasonable and reverse the attorneys’ fees awarded to Appellee
and render a take-nothing judgment against her. Appellant
further prays that he be granted any such further relief to which
27
he may show himself justly entitled.
Respectfully submitted,
/s/ Scott Ogle
Scott Ogle
TBN: 00797170
Law Office of Scott P. Ogle
2028 Ben White Blvd.
Austin, TX 78704
Phone: (512) 442-8833
Fax: (512) 442-3256
soglelaw@peoplepc.com
Attorney for Appellant
Appellant Pro Se
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4 of the Texas Rules of Appellate
Procedure, I certify that this document was computer-generated
using Corel WordPerfect and is printed in a standard font using
14-point type. I certify that the word count for the portion of this
filing included by Rule 9.4(i)(1) of the Texas Rules of Appellate
Procedure is 5,026.
/s/ Scott Ogle
Scott Ogle
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing
instrument has been furnished to counsel for the Appellees listed
below pursuant to Rule 9.5(b)(1) of the Texas Rules of Appellate
Procedure through the electronic filing manager, as opposing
counsel’s email address is on file with the electronic filing
manager, on this 29th day of December , 2015.
28
/s/ Scott Ogle
Scott Ogle
Paul A. Batrice
Law Office of Paul Batrice
1114 Lost Creek Blvd., Ste. 440
Austin, Texas 78746
29
APPENDIX
30
APPENDIX TABLE OF CONTENTS
TAB DESCRIPTION
A Order Granting Summary Judgment – 06/05/2015 [C.R. 469]
B Order Granting Summary Judgment
as to Promissory Estoppel – 07/08/2015 [C.R. 505]
C Defendant’s Original Answer – 01/30/2015 [C.R. 46]
D Defendant’s Motion for Summary Judgment as to
Promissory Estoppel – 06/04/2015 [C.R. 434]
E Plaintiff’s Response to Defendant’s Motion for Summary
Judgment as to Promissory Estoppel – 06/24/2015 [C.R. 497]
F Text of Chapt. 10 of the Texas Civil Practices & Remedies Code
G Text of Rule 13 of the Texas Rules of Civil Procedure
H Text of Rule 83 of the Texas Rules of Civil Procedure
I Text of Rule 301 of the Texas Rules of Civil Procedure
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
EXHIBIT E
EXHIBIT F
CIVIL PRACTICE AND REMEDIES CODE
TITLE 2. TRIAL, JUDGMENT, AND APPEAL
SUBTITLE A. GENERAL PROVISIONS
CHAPTER 10. SANCTIONS FOR FRIVOLOUS PLEADINGS AND MOTIONS
Sec.A10.001.AASIGNING OF PLEADINGS AND MOTIONS. 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)AAthe 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)AAeach 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)AAeach 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)AAeach 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.
Added by Acts 1995, 74th Leg., ch. 137, Sec. 1, eff. Sept. 1, 1995.
Sec.A10.002.AAMOTION FOR SANCTIONS. (a) A party may make a
motion for sanctions, describing the specific conduct violating
Section 10.001.
(b)AAThe court on its own initiative may enter an order
describing the specific conduct that appears to violate Section
10.001 and direct the alleged violator to show cause why the conduct
has not violated that section.
(c)AAThe court may award to a party prevailing on a motion
under this section the reasonable expenses and attorney ’s fees
1
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.
Added by Acts 1995, 74th Leg., ch. 137, Sec. 1, eff. Sept. 1, 1995.
Sec.A10.003.AANOTICE AND OPPORTUNITY TO RESPOND. The court
shall provide a party who is the subject of a motion for sanctions
under Section 10.002 notice of the allegations and a reasonable
opportunity to respond to the allegations.
Added by Acts 1995, 74th Leg., ch. 137, Sec. 1, eff. Sept. 1, 1995.
Sec.A10.004.AAVIOLATION; SANCTION. (a) A court that
determines that a person has signed a pleading or motion in
violation of Section 10.001 may impose a sanction on the person, a
party represented by the person, or both.
(b)AAThe sanction must be limited to what is sufficient to
deter repetition of the conduct or comparable conduct by others
similarly situated.
(c)AAA sanction may include any of the following:
(1)AAa directive to the violator to perform, or refrain
from performing, an act;
(2)AAan order to pay a penalty into court; and
(3)AAan order to pay to the other party the amount of
the reasonable expenses incurred by the other party because of the
filing of the pleading or motion, including reasonable attorney ’s
fees.
(d)AAThe court may not award monetary sanctions against a
represented party for a violation of Section 10.001(2).
(e)AAThe court may not award monetary sanctions on its own
initiative unless the court issues its order to show cause before a
voluntary dismissal or settlement of the claims made by or against
the party or the party ’s attorney who is to be sanctioned.
(f)AAThe filing of a general denial under Rule 92, Texas
Rules of Civil Procedure, shall not be deemed a violation of this
chapter.
Added by Acts 1995, 74th Leg., ch. 137, Sec. 1, eff. Sept. 1, 1995.
2
Sec.A10.005.AAORDER. A court shall describe in an order
imposing a sanction under this chapter the conduct the court has
determined violated Section 10.001 and explain the basis for the
sanction imposed.
Added by Acts 1995, 74th Leg., ch. 137, Sec. 1, eff. Sept. 1, 1995.
Sec.A10.006.AACONFLICT. Notwithstanding Section 22.004,
Government Code, the supreme court may not amend or adopt rules in
conflict with this chapter.
Added by Acts 1995, 74th Leg., ch. 137, Sec. 1, eff. Sept. 1, 1995.
3
EXHIBIT G
EXHIBIT H
EXHIBIT I