in the Interest of G.M., a Child

Reversed in Part and Affirmed in Part and Memorandum Opinion filed May
11, 2021.
In The
Fourteenth Court of Appeals
NO. 14-20-00044-CV
IN THE INTEREST OF G.M., A CHILD
On Appeal from the 246th District Court
Harris County, Texas
Trial Court Cause No. 2015-13128
MEMORANDUM OPINION
Appellants Daniel Humphrey and Norma Almanza appeal the trial court’s
order in a suit to modify the parent-child relationship. The trial court ordered that
appellee Victoria Morris (“Mother”) and appellants be named joint managing
conservators of G.M. (“the Child”), Morris’s child and Humphrey and Almanza’s
great nephew. In four issues appellants challenge (1) the legal and factual sufficiency
of the evidence to support the jury’s findings that appellee’s parental rights should
not be terminated; (2) the trial court’s possession order; (3) the trial court’s denial of
appellants’ motion for new trial; and (4) the assessment of sanctions against
appellants’ attorney. Concluding the evidence does not support assessment of
sanctions we reverse that portion of the trial court’s order and affirm the remainder
of the judgment.
BACKGROUND
I. Pretrial Proceedings
The Child was born in 2012. Two years later Mother was convicted of driving
while intoxicated (“DWI”) with the Child in the car. Mother voluntarily placed the
Child with appellants who subsequently filed a petition to be named joint managing
conservators of the Child. The trial court named appellants joint managing
conservators and named appellee, Mother, and Corey Meyer, the Child’s father
(“Father”), as possessory conservators.
Three years later Mother completed her probation and moved to modify the
parent-child relationship alleging the circumstances of the Child had materially and
substantially changed since the earlier order. Mother requested that she be named
joint managing conservator with appellants. Mother also sought the exclusive right
to establish the residence of the Child, the right to receive and disburse child support,
and the right to make educational, medical, psychological, and psychiatric decisions
for the Child. While Mother’s motion to modify was pending, Father passed away.
Appellants filed a counterpetition in which they alleged Mother’s parental rights
should be terminated on grounds of endangerment. See Tex. Fam. Code Ann. §
161.001(b)(1)(D) & (E).
II. Trial Testimony
The parties proceeded to a jury trial where the following witnesses testified:
(1) Mother; (2) Kristen Goodson, the Child’s paternal aunt; (3) Joshua Morris,
Mother’s husband; (4) Donna Lynn Tuman, Joshua’s mother; (5) appellants; and (6)
2
Erika Kaiser and Robert Chaya, Almanza’s friends.
Mother admitted that before the Child was born, she had been arrested for
family violence. Mother testified that the arrest came as a result of an altercation
with Father. Mother described the relationship with Father as abusive. Mother
admitted to a possession charge and the DWI conviction. Mother voluntarily placed
the Child with appellants after the DWI conviction.
Mother successfully completed four years of probation following the DWI
and completed substance abuse treatment. Mother had not used substances,
including alcohol, since 2014. Since completing probation Mother remarried and
had another child. Mother completed parenting classes, engaged in counseling, and
graduated from cosmetology school. At the time of trial Mother expected to receive
a cosmetology license within the week and had a job waiting for her once she was
licensed. Mother was current on child support owed to appellants, but still owed
attorney’s fees. Mother testified that appellants excluded her from family functions
preventing her from seeing the Child at holidays.
Kristen Goodson, the Child’s paternal aunt, testified that Mother had changed
since her DWI conviction. Goodson cited Mother’s counseling, cosmetology school
attendance, and addiction treatment as ways in which Mother had improved her life.
Joshua Morris, Mother’s husband, testified that he and Mother had one child,
who was two years old at the time of trial. Morris testified that he had convictions
for theft and possession of a controlled substance, and two misdemeanor convictions
for DWI. The last conviction occurred six years before trial. Since that time Morris
stopped using alcohol, and stopped associating with “people who would lead [him]
down the wrong path.” For up to five months preceding trial appellants had not
allowed Morris or Mother to see the Child.
3
After Mother rested on her petition to modify the parent-child relationship,
appellants moved for directed verdict on their counterpetition for termination of
Mother’s parental rights. Appellants sought termination of Mother’s parental rights
under section 161.001(b)(1)(D) and (E) (endangerment) of the Family Code. The
trial court denied appellants’ motion for directed verdict.
Appellant Daniel Humphrey testified that the Child was placed with them
approximately five years earlier when Mother was arrested for DWI. Humphrey
testified that Mother was allowed to visit the Child at their house upon her release
from jail. Appellants sought more structured visitation after seeing Mother
“aggressively correcting” the Child when he called appellants “Mommy and
Daddy.” Appellants arranged for Mother to visit the Child at locations other than
their home for the next several months. All of Mother’s visits were supervised by
appellants.
During an Easter visit in 2015, after the Child had lived with appellants for
approximately nine months, appellants refused Mother’s request to go to appellants’
home to extend her visit with the Child. According to Humphrey, in response to
appellants’ refusal, Mother “began acting angrily.” After the Easter visit appellants
decided to have Mother’s visits supervised by Child Protective Services (“CPS”). At
that time, the trial court issued a standard possession order, which allowed Mother
supervised visitation on the first, third, and fifth weekends of each month.
After Mother filed a petition to modify conservatorship seeking joint
managing conservatorship with appellants, appellants changed the nature of
Mother’s supervised visitation. Almanza supervised the visits rather than Humphrey,
and the visits all took place in public locations. Appellants elected to have Almanza
supervise the visits because Almanza was a teacher and was required to submit to
random drug screening and had a duty to report alleged abuse. The change in
4
visitation was in response to allegations Mother made in the petition that appellants
were engaging in alcohol and drug use.
Approximately six months before trial appellants proposed supervised
visitation through a third party at Mother’s expense. Mother rejected the proposed
supervised visits through the third party, Guardians of Hope. Eventually, appellants,
on the advice of their attorney, stopped allowing Mother to visit the Child at all.
Appellants rested without renewing their motion for directed verdict on
termination of Mother’s parental rights.
III. Jury Charge and Verdict
Neither party objected to the jury charge, which submitted grounds for
termination of Mother’s rights alleging endangerment under Family Code section
161.001(b)(1)(D) and (E). See Tex. Fam. Code § 161.001(b)(1)(D), (E). The charge
further submitted questions on whether appellants and Mother should be named joint
managing conservators and whether Mother should have the exclusive right to
designate the primary residence of the Child. The jury found (1) Mother’s parental
rights should not be terminated; (2) Mother and appellants should be named joint
managing conservators; and (3) Mother should not have the exclusive right to
designate the primary residence of the child in place of appellants.
IV. Hearing on Possession and Access
After the jury was dismissed, the trial court held a hearing on possession and
access. At the hearing Mother testified that she was financially able to pay 50 percent
of the Child’s medical costs as a joint managing conservator. Mother requested an
“expanded” possession order, specifically, that on the first, third, and fifth weekends
the Child would stay with Mother from Thursday night through Monday morning.
Almanza testified that appellants did not want Mother to have full weekend
5
visitation and requested that any visitation be supervised through Guardians of Hope.
The trial court entered a standard possession order granting Mother visitation
on the first, third, and fifth weekends of each month, beginning on Friday and ending
at 6:00 p.m. Sunday. See Tex. Fam. Code § 153.312. The trial court further ordered
Mother extended visitation during the summer, but allowed appellants to designate
certain weeks during the summer during which they could visit the Child.
The trial court signed a final judgment on December 20, 2019. Appellants
filed a request for findings of fact and conclusions of law on January 21, 2020, but
did not file a timely reminder of past due findings. The trial court did not file findings
of fact and conclusions of law.
ANALYSIS
In four issues appellants challenge (1) the legal and factual sufficiency of the
evidence to support the jury’s finding that Mother’s parental rights should not be
terminated; (2) the trial court’s possession order; (3) the trial court’s denial of
appellants’ motion for new trial; and (4) the assessment of sanctions against
appellants’ attorney. We address each of appellants’ issues in turn.
I. Appellants did not preserve their sufficiency challenges for review.
In their first issue appellants contend the evidence was legally and factually
insufficient to support the jury’s finding that Mother’s parental rights should not be
terminated. When a party attacks an adverse finding on an issue for which the party
had the burden of proof, the party must demonstrate on appeal that the evidence
establishes as a matter of law all vital facts in support of the issue. Dow Chem. Co.
v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). The party must show that the evidence
conclusively establishes the proposition contrary to the jury’s finding, in this case,
that Mother’s parental rights should be terminated. See id. This is a legal sufficiency
6
complaint. Id.
When a party attacks the factual sufficiency of an adverse finding on which it
bore the burden of proof, it must establish that the finding is against the great weight
and preponderance of the evidence. Id. at 242; Burton v. Prince, 577 S.W.3d 280,
285 (Tex. App.—Houston [14th Dist.] 2019, no pet.). This is a factual sufficiency
complaint. See Dow Chem., 46 S.W.3d at 242.
In a case tried to a jury, a legal sufficiency complaint must be preserved in the
trial court. Garden Ridge, L.P. v. Clear Lake Ctr., L.P., 504 S.W.3d 428, 435 (Tex.
App.—Houston [14th Dist.] 2016, no pet.). The complaint may be preserved in one
of five ways: (1) a motion for instructed verdict, (2) a motion for judgment
notwithstanding the verdict, (3) an objection to the submission of the issue to the
jury, (4) a motion to disregard the jury’s answer to a vital fact issue, or (5) a motion
for new trial. Id. at 435. In contrast, a party challenging the factual sufficiency of the
evidence to support a jury finding must raise the issue in a motion for new trial to
preserve error. See Tex. R. Civ. P. 324(b)(2), (3); Daniels v. Empty Eye, Inc., 368
S.W.3d 743, 748 (Tex. App.—Houston [14th Dist.] 2012, pet. denied).
Appellants did not challenge the legal or factual insufficiency of the evidence
to support the jury’s finding on termination in their motion for new trial. Although
appellants filed a motion for new trial, the grounds were limited to jury misconduct.
Appellants did not assert a motion for judgment notwithstanding the verdict or a
motion to disregard the jury’s answer to the question on termination. Appellants also
failed to object to submission of the termination question to the jury on sufficiency
grounds. Appellants have therefore failed to preserve error with regard to the factual
sufficiency of the evidence and did not preserve error on legal sufficiency under any
of those vehicles. See Tex. R. Civ. P. 324(b)(2), (3); Dow Chem., 46 S.W.3d at 242.
Appellants did move for a directed verdict at the close of Mother’s evidence.
7
Mother, however, did not bear the burden of proof on appellants’ counterpetition for
termination of her parental rights. Appellants did not re-urge their motion for
directed verdict following presentation of their evidence. Appellants’ motion for
directed verdict at the close of Mother’s evidence was not adequate to preserve error
about the jury’s finding on termination because appellants proceeded to offer
evidence after the trial court denied the motion. See Garden Ridge, 504 S.W.3d at
435 (holding that party did not preserve a legal sufficiency challenge on an issue on
which it bore the burden of proof when it presented evidence following the denial of
its motion for directed verdict); see also Meek v. Onstad, 430 S.W.3d 601, 610 (Tex.
App.—Houston [14th Dist.] 2014, no pet.) (“A motion for directed verdict at the
close of the plaintiff’s case-in-chief is insufficient to preserve a complaint of legal
insufficiency of the evidence if a defendant offers evidence after denial of this
motion.”).
We have reviewed the remainder of the record and determined that appellants
did not preserve error by any other method. “The core principle underlying error-
preservation requirements is that the trial court should be given the opportunity to
correct potential errors before the case proceeds on appeal.” Garden Ridge, 504
S.W.3d at 435 (quoting Liberty Mut. Ins. Co. v. Heitkamp, No. 14-12-00873-CV,
2014 WL 261010, at *1 (Tex. App.—Houston [14th Dist.] Jan. 23, 2014, pet. denied)
(mem. op.). Appellants did not provide the trial court the opportunity to render
judgment on their counterpetition for termination, or grant a new trial on the issue.
Accordingly, appellants did not preserve their legal sufficiency issue, i.e., that they
conclusively established that Mother’s parental rights should be terminated.
Appellants also failed to preserve their factual sufficiency issue, i.e., that the jury’s
finding was against the great weight and preponderance of the evidence. We overrule
appellants’ first issue.
8
II. Appellants did not preserve their complaint that the trial court abused
its discretion in deviating from the standard possession order.
In appellants’ second issue they contend the trial court abused its discretion
by ordering a modified standard possession order.
In suits affecting the parent-child relationship, there is a rebuttable
presumption that a standard possession order, as outlined in the Family Code, is in
the best interest of the child. See Tex. Fam. Code § 153.252. A court may deviate
from the terms of the standard order if those terms would be unworkable or
inappropriate and against the child’s best interest, or if there is an agreement between
the parties. See id. §§ 153.253, 153.255. In ordering terms other than those contained
in a standard order, a court may consider (1) the age, developmental status,
circumstances, needs, and best interest of the child; (2) the circumstances of the
managing conservator and of the parent named as a possessory conservator; and (3)
any other relevant factors. Id. § 153.256. The trial court may also place conditions
on a parent’s access, such as supervised visitation, if necessary for the child’s best
interest. In re K.S., 492 S.W.3d 419, 429 (Tex. App.—Houston [14th Dist.] 2016,
pet. denied) (citing Tex. Fam. Code § 153.004(e)) (“It is a rebuttable presumption
that it is not in the best interest of a child for a parent to have unsupervised visitation
with the child if credible evidence is presented of a history or pattern of past or
present child neglect”). We give wide latitude to a trial court’s determinations on
possession and visitation issues, reversing the court’s decision only if it appears that
the court abused its discretion in light of the record as a whole. See In re S.A.H., 420
S.W.3d 911, 930 n.31 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (citing
Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982)).
Appellants contend that the trial court abused its discretion in declining
appellants’ request for supervised visitation in the possession order. Appellants
9
further contend the trial court failed to “state in writing the specific reasons for the
variance from the standard order.” Appellants failed to raise these objections in the
trial court at the hearing on possession and access, depriving the trial court of the
opportunity to correct any error. Thus, appellants failed to preserve this issue for
appeal. See Tex. R. App. P. 33.1(a); In re A.J.I.L., No. 14-16-00350-CV, 2016 WL
6110450, at *5 (Tex. App.—Houston [14th Dist.] Oct. 18, 2016, pet. denied) (mem.
op.) (holding that father’s failure to object to the trial court’s deviation from the
standard possession order waived any error).
Appellants further failed to preserve their complaint that the trial court did not
file findings of fact and conclusions of law. Although appellants timely requested
findings of fact and conclusions of law they did not file a timely notice of past due
findings. See Tex. R. Civ. P. 297 (Notice of Past Due Findings of Fact and
Conclusions of Law required to be filed within 30 days after filing the original
request). Therefore, appellants’ complaint that the court failed to issue findings and
conclusions is waived due to appellants’ failure to file the notice in a timely manner.
See Las Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d 254, 255 (Tex.
1984); Hardin v. Hardin, 161 S.W.3d 14, 20 (Tex. App.—Houston [14th Dist.]
2004, no pet.). We overrule appellants’ second issue.
III. The trial court did not abuse its discretion in denying appellants’ motion
for new trial.
A. Motion for New Trial and Hearing
Appellants filed a motion for new trial in which they alleged a new trial should
be granted because two jurors talked with the other jurors during deliberations,
telling the jurors about their “own life stories.” The motion for new trial was
supported by an affidavit from one of the jurors in which she averred:
One juror shared that she was a single mom when she was very young
10
and had a 21-year-old daughter. She shared that she turned her life
around, had a relationship with her daughter, and sympathized with the
mother. She also stated that she is a school registrar and sees this kind
of legal paperwork all the time. She further stated, if we voted “yes” on
option #2 for Joint Conservatorship shared by the mother and the aunt
& uncle caring for the boy, that would mean that the 7-year-old boy
would immediately be able to spend the 1st, 3rd, and 5th weekends,
unsupervised, with his mother. While the latter information was helpful
to know, it was wholly inappropriate to share her personal story and
that she could identify with the mother in this case.
A second juror shared that he had been separated, coincidentally, as a
7-year-old boy from his mother, when her parental rights were
terminated, but later developed a good relationship with her as an adult.
He stated that this had been very difficult on him and he was surprised
he had been placed on this jury with this as his history. While his history
was known to us because he was questioned about it during voir dire, it
also was wholly inappropriate to reintroduce this information to us
during deliberations when it was most likely to sway jurors as we were
making our decisions.
*****
Shortly after the two jurors spoke about their personal experiences, the
alternate juror, who was present, but not participating in our
discussions, interrupted our deliberations and spoke up that what the
two jurors had revealed about their personal lives was wrong, not
allowed during jury deliberations, and needed to stop.
Appellants alleged that the inappropriate comments by two jurors, and the presence
of the alternate juror during deliberations, amounted to such a denial of their rights
as was reasonably calculated to cause and probably did cause rendition of an
improper judgment.
The trial court held a hearing at which the juror who filed the affidavit
testified. The juror testified to the facts in her affidavit and said that before the two
other jurors recounted their personal experiences, two jurors had voted to terminate
Mother’s parental rights and ten had voted not to terminate. The vote after the two
11
jurors shared their stories remained the same. The juror testified that the stories told
by the two jurors did not influence her decision.
Appellants requested a new trial on the grounds of jury misconduct,
specifically alleging that misconduct occurred because the alternate juror deliberated
with the jury and two of the jurors recounted personal stories during deliberations.
Mother’s attorney moved for sanctions against appellants’ attorney alleging the
motion for new trial was filed only to harass Mother. The trial court denied the
motion for new trial and orally announced sanctions of $1,000 against appellants.
B. Standard of Review and Applicable Law
We review the trial court’s denial of appellants’ motion for new trial under
the abuse-of-discretion standard of review. See Golden Eagle Archery, Inc. v.
Jackson, 24 S.W.3d 362, 372 (Tex. 2000); In re A.V.T.R., No. 14-19-00986-CV,
2021 WL 924372, at *5 (Tex. App.—Houston [14th Dist.] Mar. 11, 2021, no pet.)
(mem. op.).
Texas Rule of Civil Procedure 327(b) states:
A juror may not testify as to any matter or statement occurring during
the course of the jury’s deliberations or to the effect of anything upon
his or any other juror’s mind or emotions as influencing him to assent
to or dissent from the verdict concerning his mental processes in
connection therewith, except that a juror may testify whether any
outside influence was improperly brought to bear upon any juror. Nor
may his affidavit or evidence of any statement by him concerning a
matter about which he would be precluded from testifying be received
for these purposes.
Tex. R. Civ. P. 327(b).
Texas Rule of Evidence 606(b) provides:
(1) Prohibited Testimony or Other Evidence. During an inquiry into
the validity of a verdict or indictment, a juror may not testify about any
12
statement made or incident that occurred during the jury’s
deliberations; the effect of anything on that juror’s or another juror’s
vote; or any juror’s mental processes concerning the verdict or
indictment. The court may not receive a juror’s affidavit or evidence of
a juror’s statement on these matters.
(2) Exceptions. A juror may testify:
(A) about whether an outside influence was improperly brought to bear
on any juror; or
(B) to rebut a claim that the juror was not qualified to serve.
Tex. R. Evid. 606(b).
Both Rule 327(b) and Rule 606(b) provide that jurors may not testify about
statements or matters occurring during jury deliberations, but they may testify about
an outside influence improperly brought to bear on a juror. See Tex. R. Evid. 606;
Tex. R. Civ. P. 327. Under binding precedent from both the Supreme Court of Texas
and this court, the jurors’ discussion of improper matters during deliberations does
not constitute the bringing to bear of an outside influence on a juror; thus, Rule
327(b) and Rule 606(b) prohibit a trial court from considering a juror’s testimony as
to such discussions. See Golden Eagle Archery, Inc., 24 S.W.3d at 370, 373–74;
Wichman v. Kelsey-Seybold Med. Group, PLLC, No. 14-18-00641-CV, 2020 WL
4359734, at *3 (Tex. App.—Houston [14th Dist.] July 30, 2020, no pet.) (mem. op.).
C. Application
In today’s case, a juror testified as to alleged juror misconduct by two jurors
during deliberations, sharing personal experiences with the other jurors. According
to the witness in the motion for new trial hearing, the alleged sharing of the personal
experiences had no effect on her verdict, nor did it change the vote of the jurors taken
before the stories were told. The juror’s affidavit and testimony concerned
statements or matters occurring during jury deliberations and did not address an
outside influence brought to bear on a juror. See Golden Eagle Archery, Inc., 24
13
S.W.3d at 370, 373–74. Appellants did not submit any evidence from a source other
than a juror. As noted above, Rule 327(b) does not permit testimony by a juror about
deliberations but only permits testimony about an outside influence. The personal
anecdotes recounted by two of the jurors during deliberations were not an outside
influence as contemplated by the rules of civil procedure. See Wichman, 2020 WL
4359734, at *4 (trial court did not err in denying motion for new trial where juror
testified that two jurors shared personal stories during deliberations). The trial court
did not abuse its discretion in denying the motion for new trial. We overrule
appellants’ third issue.
IV. The trial court abused its discretion in assessing sanctions for a
groundless pleading.
In appellants’ fourth issue they contend the trial court abused its discretion in
finding that appellants’ motion for new trial was groundless and ordering sanctions
in the amount of $1,000.
A. Trial Court’s Oral Sanction Order
In response to appellants’ motion for new trial, Mother moved for sanctions
alleging the motion for new trial was a groundless pleading under Texas Rule of
Civil Procedure 13 and Chapter 10 of the Civil Practice and Remedies Code. Mother
also asserted the motion for new trial was frivolous and brought for the purpose of
harassment, delay, and to increase litigation costs. At the hearing on the motion for
new trial Mother’s attorney orally moved for sanctions on the grounds asserted in
her motion. At the end of the hearing, the trial court assessed sanctions as follows:
The Court finds that the pleading was groundless and brought in bad
faith for the purpose of harassment. As such, the Court is sanctioning
the attorney’s conduct and ordering that attorney’s fees in the amount
of — I’m sorry, sanctions in the amount of $1,000 be paid to the
Respondent for this motion for new trial.
14
Appellants’ counsel orally requested findings of fact and conclusions of law as to
the motion for new trial but otherwise did not object to the sanctions. Appellants did
not request findings of fact and conclusions of law in writing following the hearing.
The trial court’s final judgment ordered that each party was responsible for their own
attorney’s fees, but did not assess the $1,000 sanction amount orally pronounced
during the motion for new trial hearing. We found no authority requiring the trial
court’s assessment of sanctions to be in writing. As discussed below, however, the
trial court’s assessment of sanctions is required to be supported by a finding of good
cause under Texas Rule of Civil Procedure 13. Moreover, under Chapter 10 of the
Civil Practice and Remedies Code, the trial court is required to describe the conduct
the court has determined violated section 10.001 and explain the basis for the
sanction imposed. Tex. Civ. Prac. & Rem. Code § 10.005.
B. Standard of Review and Applicable Law
We review a trial court’s imposition of sanctions under an abuse of discretion
standard of review. Nath v. Tex. Children’s Hosp., 446 S.W.3d 355, 361 (Tex. 2014).
Generally, courts presume pleadings are filed in good faith. Id. The party seeking
sanctions must therefore overcome this presumption of good faith. Id.
Because Mother’s motion for sanctions alleged that appellants’ motion for
new trial was groundless and brought in bad faith or for the purpose of harassment,
both Rule 13 of the Texas Rules of Civil Procedure and Chapter 10 of the Civil
Practice and Remedies Code are applicable to this case. Rule 13 provides for
sanctions for pleadings that are “groundless and brought in bad faith or groundless
and brought for the purpose of harassment.” Tex. R. Civ. P. 13; see Nath, 446 S.W.3d
at 361. Chapter 10 authorizes sanctions for “pleadings filed with an improper
purpose or that lack legal or factual support.” Nath, 446 S.W.3d at 362; Tex. Civ.
Prac. & Rem. Code § 10.001. Both Rule 13 and Chapter 10 require the sanctions
15
order to state a reason for the sanction. Tex. R. Civ. P. 13; Tex. Civ. Prac. & Rem.
Code § 10.005. Rule 13 requires that the sanction be based on “good cause, the
particulars of which must be stated in the sanction order,” Tex. R. Civ. P. 13, and
Chapter 10 requires that the order describe the sanctionable conduct and “explain
the basis for the sanction imposed.” Tex. Civ. Prac. & Rem. Code § 10.005. Failure
to state the particulars of good cause in a Rule 13 sanction order is an abuse of
discretion. Gomer v. Davis, 419 S.W.3d 470, 478 (Tex. App.—Houston [1st Dist.]
2013, no pet.); Robson v. Gilbreath, 267 S.W.3d 401, 407 (Tex. App.—Austin 2008,
pet. denied).
However, when the party against whom sanctions are imposed fails to object
to the form of the sanctions order, the party waives any objection to the lack of
particularity in the order. Gomer, 419 S.W.3d at 478; Robson, 267 S.W.3d at 407.
Here, the record does not contain a written order of sanctions and appellants did not
object to the trial court’s oral pronouncement. Therefore, to the extent appellants’
issue challenges the form of the sanctions order, it is waived. Akhtar v. Leawood
HOA, Inc., 525 S.W.3d 814, 820 (Tex. App.—Houston [14th Dist.] 2017, no pet.).
Appellants argue, however, that the trial court abused its discretion in finding
the filing of the motion for new trial was groundless. We construe this to be an
argument about the evidentiary support for the trial court’s sanctions order. See Tex.
R. App. P. 38.1; Perry v. Cohen, 272 S.W.3d 585, 588 (Tex. 2008) (appellate briefs
to be construed reasonably, yet liberally, and appellate courts should reach merits of
appeal whenever reasonably possible). In that circumstance, we review the record
for evidence of an implied finding that the claim was groundless and brought in bad
faith or for the purpose of harassment. See Gomer, 419 S.W.3d at 478; Robson, 267
S.W.3d at 407. Similarly, sanctions imposed under Chapter 10 must be supported by
evidence adduced at a hearing that supports a trial court’s determinations “about the
16
party’s or the attorney’s motives and credibility.” Gomer, 419 S.W.3d at 480.
A party who moves for sanctions bears the burden to establish a right to relief
by proving its assertions. GTE Commc’ns Sys. Corp. v. Tanner, 856 S.W.2d 725,
729 (Tex. 1993) (orig. proceeding). Because that burden must be met with evidence,
legal sufficiency of the evidence is relevant in determining whether the trial court
abused its discretion by imposing sanctions. Yuen v. Gerson, 342 S.W.3d 824, 827
(Tex. App.—Houston [14th Dist.] 2011, pet. denied).
The party seeking sanctions first must establish that the signed document is
groundless. See Tex. R. Civ. P. 13. As used in Rule 13, “groundless” means having
“[n]o basis in law or fact and not warranted by good faith argument for the extension,
modification, or reversal of existing law.” Id.; Falk & Mayfield L.L.P. v. Molzan,
974 S.W.2d 821, 824 (Tex. App.—Houston [14th Dist.] 1998, pet. denied)
(emphasizing that “groundless” means “there is no arguable basis for the cause of
action”). A pleading is groundless if the represented party or counsel failed to make
an objectively reasonable inquiry into the legal and factual basis of the claims at the
time the pleading was filed. See Harrison v. Harrison, 363 S.W.3d 859, 863 (Tex.
App.—Houston [14th Dist.] 2012, no pet.). “Reasonable inquiry” means the amount
of examination that is reasonable under the circumstances of the case. Robson, 267
S.W.3d at 406. To determine the reasonableness of the inquiry, a court must examine
the facts available to the litigant or counsel and the circumstances that existed when
the document was signed and filed. See Harrison, 363 S.W.3d at 863–64; Robson,
267 S.W.3d at 405. Because courts begin with the presumption that signed papers
are filed in good faith, the party seeking sanctions must rebut the presumption by
producing competent evidence that a reasonable inquiry made at that time would
have revealed the groundless nature of the challenged matter. See Unifund CCR
Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 2009) (per curiam).
17
In addition to proving groundlessness, a party seeking sanctions also must
prove that the challenged document was signed in bad faith or for the purpose of
harassment. See Tex. R. Civ. P. 13; Unifund, 299 S.W.3d at 97. To meet this burden,
the party seeking sanctions must overcome the presumption that the challenged
document was filed in good faith. See Nath, 446 S.W.3d at 361. 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. See Mann v. Kendall Home Builders Constr.
Partners I, Ltd., 464 S.W.3d 84, 92 (Tex. App.—Houston [14th Dist.] 2015, no pet.);
see also Tanner, 856 S.W.2d at 731 (“Rule 13 does not permit sanctions for every
pleading or motion that requests relief which is denied.”). To establish bad faith, the
movant must show more than mere negligence or bad judgment. Mann, 464 S.W.3d
at 92. We have described the movant’s obligation to establish bad faith as “a heavy
burden” because bad faith consists of “the conscious doing of a wrong for dishonest,
discriminatory, or malicious purposes.” Loya v. Loya, No. 14-12-00385-CV, 2013
WL 830940, at *3 (Tex. App.—Houston [14th Dist.] Mar. 5, 2013, no pet.) (mem.
op.). A party acts in bad faith if it has been put on notice that its understanding of
the facts may be incorrect, and the party does not make reasonable inquiry before
pursuing the claim further. Robson, 267 S.W.3d at 407.
C. Application
At the hearing on the motion for new trial Mother’s attorney argued that
appellants’ motion for new trial was groundless because only one juror testified
about the deliberations and testified that she was not influenced by her fellow jurors’
statements. In assessing sanctions, the trial court found the “pleading was groundless
and brought in bad faith for the purpose of harassment.” This finding was not
reduced to writing in the trial court’s final judgment. No particulars were recited,
18
orally or in writing, about any sanctionable conduct, bad faith, harassment, or good
cause. The trial court did not hold a separate hearing and no evidence was introduced
to show bad faith on the part of appellants or their attorney.
We agree there is no evidentiary support in this record for a sanctions order
under Rule 13 or Chapter 10. See Tex. R. Civ. P. 13; Tex. Civ. Prac. & Rem. Code
§ 10.001, et. seq. The record from the hearing on the motion for new trial includes a
brief mention of sanctions and no testimony about conduct that could be
sanctionable. On appeal Mother argues that the trial court’s assessment of sanctions
was appropriate because the legal basis for the motion for new trial was not a
recognized legal basis for a new trial. Even if we accepted Mother’s allegation that
the pleading was groundless, Mother does not point to any evidence in the record
showing bad faith or harassment by appellants, nor have we found any. Because
there is no evidentiary support for a sanction in this record, we hold that the trial
court erred by ordering appellants to pay Mother $1,000 in sanctions. We sustain
appellants’ fourth issue.
CONCLUSION
As noted above, the record does not reflect the trial court’s sanctions order
was reduced to writing. We therefore reverse the trial court’s oral order requiring
appellants to pay sanctions to Mother. We affirm the remainder of the judgment.
/s/ Jerry Zimmerer
Justice
Panel consists of Justices Wise, Zimmerer, and Poissant.
19