Opinion issued June 19, 2025
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00654-CV ——————————— DANIEL BREEDEN, Appellant V. IRENE BREEDEN, Appellee
On Appeal from the 280th District Court Harris County, Texas Trial Court Case No. 2023-35173
MEMORANDUM OPINION
Daniel Breeden and Irene Breeden were divorced in March 2023 in a separate
proceeding. In that divorce case, the trial court issued a final divorce decree and a
family-violence protective order against Daniel. In June 2023, Daniel filed a new
lawsuit in a separate court seeking a family-violence protective order against Irene. In her answer, Irene requested sanctions against Daniel under Civil Practice and
Remedies Code chapter 10 for filing a new lawsuit for the sole purpose of
harassment, creating unnecessary delay, and needlessly increasing her attorney’s
fees and litigation costs. After a hearing, the trial court dismissed Daniel’s
application without prejudice and awarded $2,300 in sanctions to Irene for attorney’s
fees. In four issues on appeal, Daniel contends that the trial court erred by awarding
sanctions without supporting evidence and without providing notice and an
opportunity to respond. We affirm.
Background
Daniel and Irene are the parents of a minor child, D.D.B. (Dylan).1 The parties
divorced in March 2023.
The 247th District Court of Harris County presided over the divorce
proceeding. In February 2023, the court signed an agreed protective order protecting
Irene and Dylan after finding that Daniel “has committed family violence” and
“caused serious bodily injury to [Irene].” The court further found that the protective
order was “for the safety and welfare and in the best interest of Irene Breeden and
[Dylan] and [is] necessary for the prevention of family violence[.]” Among other
things, the order prohibited Daniel from committing family violence against Irene
1 We refer to the minor child by a pseudonym to protect his privacy, and we refer to the parties by their first names because they share the same last name. 2 and Dylan; taking any action intended to result in physical harm or reasonably
threatening physical harm to Irene and Dylan; communicating with Irene or Dylan
except through Irene’s attorney; going near Dylan or Irene or their residence, Irene’s
place of work, and Dylan’s school; and possessing a firearm. The order also required
Daniel to complete a battering intervention and prevention program. The order was
effective for two years.
In March 2023, the court signed a final decree of divorce. The decree
appointed Irene as sole managing conservator and Daniel as possessory conservator
of Dylan. Pursuant to the agreed protective order, the decree required that Daniel
have supervised visitation with Dylan through a third-party supervision provider.
The decree also contained a provision permanently enjoining Daniel from permitting
Dylan to be in the presence of Maria Dolores Garcia-Merrill, who is Daniel’s mother
and Dylan’s paternal grandmother.
In June 2023, Daniel filed the underlying application for protective order in
the 280th District Court. The application named Irene as the respondent and sought
protection for three children, including Dylan, and three adults, including Daniel and
his mother.2 In the application, Daniel alleged that Irene had committed family
violence and was likely to commit family violence in the future. Daniel requested
2 The two other children share Daniel’s last name, and the application states that they are not Irene’s biological children. 3 that the court enter a protective order prohibiting Irene from taking numerous actions
similar to those that Daniel was prohibited from taking in the agreed protective order
in the divorce case. For example, Daniel sought to prohibit Irene from committing
family violence; communicating “in any manner” with Daniel and Dylan; going near
Daniel and Dylan, their residence, Daniel’s place of work, and Dylan’s school; and
possessing a handgun. Daniel also requested that the court establish or modify a
schedule for Daniel’s possession of Dylan and award him exclusive use of his
wedding ring.
Daniel attached a declaration and an affidavit to his application. In the
declaration, Daniel stated that in February 2023, “Irene submitted evidence
admitting to striking [him],” and in 2021, “Irene displayed child abuse and neglect
and recorded it on her cell phone.” Daniel also stated that “on many occasions when
[he] was driving and [Irene] was a passenger, she would initiate arguments and
threaten to kill [them] both in a car accident.” He stated that Dylan was present
during these incidents. In the affidavit, Daniel made additional accusations against
Irene, including that she hit him and his sister, she is a substance abuser and drug
trafficker, and she cyber stalked him and hacked into his email and social media
accounts. He also accused Irene of video recording Dylan nude and “permitting him
to cry without offering him any comfort.”
4 Irene filed an answer generally denying Daniel’s allegations. She specifically
denied engaging in conduct that constituted family violence, including physically
harming or threatening Daniel, Dylan, or any other person listed in the application.
She also specifically denied that good cause existed to prohibit her from
communicating with Daniel or Dylan, and she denied engaging in conduct
“reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass [Daniel]
and other members of [Daniel’s] family and household.”
In her answer, Irene also requested that the trial court award her sanctions
under Civil Practice and Remedies Code chapter 10. She alleged that Daniel’s
application for protective order did not “specify any dates, times, places, etc.” and
that Daniel’s allegations against her were false. She also alleged that collateral
estoppel barred Daniel’s claims because all his allegations of family violence
occurred prior to entry of the final divorce decree in the divorce case, and thus his
claims had been adjudicated in that prior proceeding. Irene further alleged that
Daniel “has filed several improper ‘pro se’ motions to set aside, alter, etc., the
parties’ Final Decree of Divorce, including the filing of a ‘grievance’ against
[Irene’s] attorney of record, which was summarily dismissed by the Chief
Disciplinary Counsel of the State Bar of Texas.” Finally, Irene alleged that Daniel’s
protective order application was filed “for the sole purposes of harassing [Irene],
creating an unnecessary delay, and a needless increase in the cost of attorney’s fees
5 and litigation costs to [Irene].” Irene requested that the court award her sanctions,
attorney’s fees, and court costs.
The trial court held a hearing on Daniel’s application for protective order.
Daniel appeared pro se, and Irene appeared with her counsel.
At the beginning of the hearing, Irene’s counsel raised her request for
sanctions. The trial court decided to hear Daniel’s protective order application first.
Daniel called Irene as his first witness, but after he asked his first question, Irene’s
counsel objected based on res judicata and collateral estoppel. Counsel argued that
Daniel and Irene were previously parties to a divorce proceeding, and thus Daniel
already had an opportunity to raise all the claims asserted in his application for
protective order, including any assault claims and claims concerning possession of
and access to Dylan and division of the parties’ marital property. The trial court
admitted into evidence the final divorce decree and the agreed protective order
issued in the divorce case, as well as Daniel’s application for protective order. Daniel
responded that he had evidence to support his claims, but he did not introduce this
evidence.
The trial court initially ruled that Daniel’s claims were barred because they
should have been raised and adjudicated in the divorce case. The court stated that in
the final divorce decree, Irene “was given sole custody and [Daniel was] given
supervised visitation” of Dylan, and the agreed protective order in that case indicated
6 that Daniel was “the person who was unsafe with [Dylan].” The court also stated
that contrary to the allegations in his application, Daniel lacked knowledge about
Irene’s future conduct because the agreed protective order prohibited him from being
near her.
Irene’s counsel then re-urged the request for sanctions. Counsel asserted that
Daniel, acting pro se, had initiated the divorce case and specifically requested that
the court appoint Irene as sole managing conservator and appoint him as possessory
conservator of Dylan, which contradicted Daniel’s allegations in this case that Irene
had been abusing Dylan. Counsel also asserted that after Daniel agreed to the
protective order in the divorce case, Daniel filed a motion to remove his signature
from the order, a motion to file the judgment, and a motion to modify the order.
Counsel further asserted that Daniel had filed an attorney grievance against him with
the State Bar of Texas, and the grievance was dismissed. Irene’s counsel did not
introduce any evidence supporting these arguments.
Irene’s counsel also contended that after Daniel failed to obtain relief in the
divorce proceeding, he filed “a false application for a protective order” containing
allegations that were inconsistent with the position he took in the divorce case.
Counsel thus requested sanctions under Civil Practice and Remedies Code chapter
10 against Daniel for signing a pleading—the application for protective order—that
was unsupported by good faith and credible evidence. Counsel further contended
7 that “there can be no other purpose for this litigation than [to] harass, annoy, or
increase the cost of litigation[.]” Counsel requested $2,300 in sanctions for his fees
in defending Irene against Daniel’s allegations, and the trial court orally granted the
request.
After a lunch recess, the trial court sua sponte reversed its prior ruling that
Daniel’s claims were precluded by his participation in the prior divorce action. The
court told Daniel that he has no knowledge of “what [Irene is] doing in this house
because [he has not] been around her since the protective order was signed.”
Nevertheless, the court told Daniel that it would hear his application for a protective
order against Irene if he chose to proceed. The court asked Daniel whether he wanted
to proceed with the hearing on his application, and he responded, “Well, it depends,”
implying that his decision depended on whether the court would reconsider the
sanctions ruling. The court stated that it was “not taking those sanctions off” because
Daniel “need[s] to stop filing all of these motions.” The court also stated that it “was
surprised that [Irene] only asked for $2300. I was looking somewhere around seven
grand. That 2300 isn’t nothing. He [Irene’s counsel] did you a solid.” The court then
told Daniel that if he proceeded with the hearing, he may face additional sanctions
for attorney’s fees that Irene incurred during the hearing, and the court expressed
doubt about Daniel’s success on his application for protective order because he was
complaining about Irene’s conduct in 2021 and because he had not seen Dylan since
8 the agreed protective order issued in the divorce case. After the court gave Daniel
several opportunities to be heard on his protective order application, Daniel
eventually passed on the hearing.
The trial court subsequently signed an order dismissing Daniel’s application
for protective order without prejudice. The court then signed an order granting
Irene’s request for sanctions. In the order, the court found that Daniel “passed his
application for protective order.” The court further found that based on the evidence
and the parties’ arguments, sanctions were appropriate under Civil Practice and
Remedies Code chapter 10. The order awarded Irene $2,300 for reasonable and
necessary attorney’s fees. This appeal followed.
Sanctions
In four issues, Daniel contends that the trial court erred by awarding sanctions
because the award was not supported by evidence and he was not provided notice or
an opportunity to be heard.3
A. Standard of Review
We review a trial court’s order imposing sanctions for an abuse of discretion.
Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007). We may reverse the sanctions
ruling only if the trial court acted without reference to any guiding rules and
3 The Court grants Daniel’s Motion to Exceed Reply Brief Length. See TEX. R. APP. P. 9.4(i)(2)(C). 9 principles, such that its ruling was arbitrary and unreasonable. Id. “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 v. Villa, 299 S.W.3d 92, 97
(Tex. 2009) (per curiam). Rather, “a trial court abuses its discretion when its decision
is contrary to the only permissible view of probative, properly-admitted evidence.”
Id.
B. Governing Law
Civil Practice and Remedies Code section 10.001 provides:
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.
10 TEX. CIV. PRAC. & REM. CODE § 10.001. Under this section, “the signer of a pleading
or motion certifies that each claim, each allegation, and each denial is based on the
signatory’s best knowledge, information, and belief, formed after reasonable
inquiry.” Low, 221 S.W.3d at 615.
A party may move for sanctions for conduct that violates section 10.001. TEX.
CIV. PRAC. & REM. CODE § 10.002(a). “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.” Id. § 10.003.
If the court determines that a person has signed a pleading or motion in
violation of section 10.001, the court may impose a sanction on the person. Id.
§ 10.004(a). “The sanction must be limited to what is sufficient to deter repetition of
the conduct or comparable conduct by others similarly situated.” Id. § 10.004(b). A
sanction may include an order to pay the opposing party the amount of reasonable
expenses incurred because of the filing of the pleading or motion, including
reasonable attorney’s fees. Id. § 10.004(c)(3). The trial court may also award a
prevailing party reasonable expenses and attorney’s fees incurred in presenting or
opposing the motion, and if no due diligence is shown, the court may award the
prevailing party all costs for inconvenience, harassment, and out-of-pocket expenses
incurred or caused by the litigation. Id. § 10.002(c).
11 C. Evidence Supporting Sanctions Award
In his first three issues, Daniel contends that the trial court erred in awarding
sanctions against him because: (1) the trial court relied on Irene’s counsel’s “oral
interpretation of events” rather than supporting evidence; (2) the court believed
Irene’s counsel was “doing a solid” for Daniel by not requesting additional
sanctions; and (3) the court based the sanctions award on an attorney grievance that
Daniel filed against Irene’s counsel. We construe these issues as arguing that no
evidence supports the sanctions award, and we address these issues together.
In response, Irene argues that Daniel waived his first three issues because he
did not preserve error under Rule of Appellate Procedure 33.1 by raising these
complaints in the trial court and because he did not comply with the briefing
requirements in Rule of Appellate Procedure 38.1.
We disagree with Irene that Daniel did not preserve error under Rule 33.1.
That rule provides that, as a prerequisite to presenting a complaint for appellate
review, the record must show that the complaint was timely made to the trial court
and that the trial court ruled or refused to rule on the complaint. TEX. R. APP. P.
33.1(a). In a civil nonjury case such as this one, however, a complaint regarding the
legal or factual sufficiency of the evidence may be made for the first time on appeal
in the complaining party’s brief. TEX. R. APP. P. 33.1(d). Although Irene correctly
argues that Daniel did not raise any objections in the trial court concerning the first
12 three issues on appeal, we construe these issues as challenging the legal sufficiency
of the evidence supporting the sanctions award. Therefore, under Rule 33.1(d),
Daniel was not required to preserve error on his first three issues. See id.
We agree with Irene, however, that Daniel waived his first three issues due to
inadequate briefing. Rule of Appellate Procedure 38.1 requires an appellant’s brief
to contain a statement of facts that is “supported by record references” and to
“contain a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record.” TEX. R. APP. P. 38.1(g), (i). A party whose
brief does not cite legal authority and the record waives the issue. Perry v. Cam XV
Tr., 579 S.W.3d 773, 779 (Tex. App.—Houston [1st Dist.] 2019, no pet.). “An
appellate court has no duty—or even right—to perform an independent review of
the record and applicable law to determine whether there was error.” Gilbreath v.
Horan, 682 S.W.3d 454, 506 (Tex. App.—Houston [1st Dist.] 2023, pet. denied)
(quoting Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no
pet.)). “Were we to do so, . . . we would be abandoning our role as neutral
adjudicators and become an advocate for that party.” Id. (quoting Valadez, 238
S.W.3d at 845).
Pro se litigants are held to the same standards as attorneys and must comply
with all applicable and mandatory rules of pleading and procedure. Morris v. Am.
Home. Mortg. Servicing, Inc., 360 S.W.3d 32, 36 (Tex. App.—Houston [1st Dist.]
13 2011, no pet.); accord In re S.V., 697 S.W.3d 659, 662 (Tex. 2024) (per curiam)
(“Pro se litigants are not exempt from the rules of procedure.”) (quotation omitted).
“To apply a different set of rules to pro se litigants would be to give them an unfair
advantage over litigants represented by counsel.” Morris, 360 S.W.3d at 36.
Daniel’s opening brief does not contain a single citation to the appellate
record, and the brief does not cite any legal authority supporting the arguments in
the first three issues.4 See TEX. R. APP. P. 38.1(g), (i). Therefore, Daniel’s opening
brief does not comply with Rule 38.1.
For the first time in his reply brief, Daniel developed and properly briefed his
arguments by citing the appellate record and legal authority. Nevertheless, an
adequate reply brief does not cure an inadequate opening brief. See Palma v. Harris
Cnty. Appraisal Rev. Bd., No. 01-17-00705-CV, 2018 WL 3355052, at *2 (Tex.
App.—Houston [1st Dist.] July 10, 2018, pet. denied) (mem. op.); Bank of Am., N.A.
v. Barth, No. 13-08-00612-CV, 2013 WL 5676024, at *3 (Tex. App.—Corpus
4 In the “Standards of Review” section of his brief, Daniel cites Government Code section 81.072(g), which prohibits a person from suing a complainant or a witness in a disciplinary proceeding based on a communication made to the commission, grievance committee, or chief disciplinary committee. See TEX. GOV’T CODE § 81.072(g). Daniel does not, however, provide any analysis applying this provision to the facts of this case or identify any communication he made that is the basis of Irene’s request for sanctions against him. See TEX. R. APP. P. 38.1(i) (requiring brief to contain “clear and concise argument for the contentions made”); Gilbreath v. Horan, 682 S.W.3d 454, 506 (Tex. App.—Houston [1st Dist.] 2023, pet. denied) (“The failure to provide a substantive and meaningful analysis applying the law to the facts waives a complaint on appeal.”). 14 Christi–Edinburg Oct. 17, 2013, no pet.) (mem. op.) (holding that party who “cit[ed]
to the record and authority for the first time in its reply brief” had waived issues due
to inadequate briefing). We also note that Daniel’s reply brief contained additional
arguments not presented in his opening brief. Generally, however, “a party may not
present arguments for the first time in its reply brief.” Palma, 2018 WL 3355052, at
*2 (quoting Cebcor Serv. Corp. v. Landscape Design & Constr., Inc., 270 S.W.3d
328, 334 (Tex. App.—Dallas 2008, no pet.)). We therefore conclude that Daniel
waived his first three issues by failing to adequately brief them.
But even if Daniel had not waived his first three issues, we disagree with his
arguments. In his first and third issues, Daniel argues that the trial court erred by
awarding sanctions because the court relied on argument of counsel—including that
Daniel had filed an attorney grievance against counsel—rather than supporting
evidence. These arguments ignore other evidence before the trial court at the hearing,
including the final divorce decree and the agreed protective order issued in the
divorce case, as well as Daniel’s application for protective order in this case. See
Villa, 299 S.W.3d at 97 (stating that trial court does not abuse its discretion if it bases
its decision on conflicting evidence and some evidence supports decision).
At the hearing, the trial court admitted into evidence the parties’ final decree
of divorce, the protective order against Daniel issued in the divorce case, and
Daniel’s application for protective order against Irene in this case. Together, these
15 documents show that Daniel’s application for protective order against Irene
requested relief that was inconsistent with the final divorce decree and the protective
order issued in the divorce case. For example, the divorce decree awarded custody
of Dylan to Irene and set a schedule for Daniel to have supervised visitation with
Dylan, but Daniel’s application requested that the trial court prohibit Irene from
communicating or attempting to communicate with Dylan “in any manner” and from
going near him, his residence, or his school. Daniel also requested that the trial court
“[e]stablish or modify a schedule for [Irene’s] possession of [Dylan].” Moreover,
the divorce decree divided the parties’ possessions, but Daniel’s application
requested that the court award him exclusive use of his wedding ring.
Furthermore, Daniel’s application for protective order also contradicted the
agreed protective order issued in the divorce case. For example, in the agreed
protective order, the court found that Daniel “has committed family violence” and
“caused serious bodily injury to [Irene],” and thus the protective order was necessary
“for the safety and welfare and in the best interest of Irene Breeden and [Dylan].”
The protective order prohibited Daniel from committing family violence against
Irene and Dylan; communicating in any manner with them except through Irene’s
attorney; going near Irene and Dylan, their residence, and their place of employment
and school; and possessing a firearm or ammunition. The agreed protective order
also required Daniel to complete a battering intervention and prevention program.
16 Daniel’s application requested substantially similar relief against Irene: he requested
that the court prohibit Irene from committing family violence; communicating with
Daniel or Dylan “in any manner”; going near their residence, Daniel’s place of work,
and Dylan’s school; and carrying a handgun. Daniel also requested that the trial court
order Irene to complete a battering intervention and prevention program.
Daniel’s application thus sought tit-for-tat relief against Irene in an attempt to
prohibit her conduct similar to the prohibitions imposed upon him by the agreed
protective order. Much of the relief he requested would impose inconsistent
obligations on Irene, which perhaps explains why he filed the application in a
separate court from the divorce proceeding. These documents—namely, the final
divorce decree and the agreed protective order issued in the divorce case—constitute
some evidence that Daniel’s application was “presented for an[] improper purpose,
including to harass or to cause . . . needless increase in the cost of litigation” for
Irene. See TEX. CIV. PRAC. & REM. CODE § 10.001(1); Villa, 299 S.W.3d at 97.
Daniel is correct to the extent he argues that Irene did not introduce into
evidence the petition for divorce and motions filed in the divorce case or the attorney
grievance against her counsel.5 Irene contended in part that sanctions were
5 In the trial court, Daniel did not dispute that he had filed the petition for divorce, the challenged motions in the divorce proceeding, and an attorney grievance against Irene’s counsel. On appeal, Daniel concedes that he filed these documents. Irene asserts that the trial court took judicial notice of statements in Daniel’s petition for divorce, but the hearing transcript indicates that Irene only requested that the trial 17 appropriate because Daniel had filed the petition for divorce containing statements
contrary to his allegations in his application for protective order. Irene also
contended that Daniel filed motions in the divorce case and the attorney grievance
as part of a pattern of harassment and needlessly increasing the cost of litigation,
including Irene’s attorney’s fees. See TEX. CIV. PRAC. & REM. CODE § 10.001(1).
Although Irene did not present any evidence supporting these arguments, we already
determined above that the final divorce decree and the agreed protective order issued
in the divorce case constitute some evidence supporting the trial court’s award of
sanctions. See Villa, 299 S.W.3d at 97. Because some evidence supports the
sanctions order, we conclude that the trial court did not abuse its discretion in
awarding sanctions to Irene. See id.; Low, 221 S.W.3d at 614 (stating that trial court
abuses its discretion by acting without reference to guiding rules and principles, such
that ruling was arbitrary and unreasonable).
Daniel also argues that the trial court erred because it believed Irene’s counsel
was “doing a solid” for Daniel by not requesting additional sanctions. At the hearing,
the trial court sua sponte reconsidered its initial ruling that Daniel’s claims were
barred by res judicata due to his participation in the prior divorce proceeding, and
the court permitted Daniel to continue with the hearing on his application. The record
court take judicial notice of the final divorce decree and Daniel’s application for protective order, both of which were admitted into evidence at the hearing. 18 indicates that Daniel perceived this ruling as the court’s willingness to reconsider
the sanctions award. When Daniel asked whether the trial court would reconsider
the sanctions award as well, the court stated:
No because you need to stop filing all of these motions. No. Listen, I was surprised that he only asked for $2300. I was looking somewhere around seven grand. That 2300 isn’t nothing. He [Irene’s counsel] did you a solid.
Daniel does not provide any analysis establishing how this comment
constituted an abuse of discretion in awarding sanctions. Essentially, the trial court
notified Daniel that additional sanctions could be warranted to deter repetition of his
conduct. See TEX. CIV. PRAC. & REM. CODE § 10.004(b) (“The sanction must be
limited to what is sufficient to deter repetition of the conduct or comparable conduct
by others similarly situated.”). Nevertheless, Irene did not request—and the trial
court did not impose—additional sanctions. Daniel has not established that the
comment constituted an abuse of discretion.
In sum, we hold that Daniel waived his first three issues for failing to
adequately brief them. But even if he did not waive these issues, Daniel has not
established that the trial court abused its discretion by awarding sanctions. We
overrule Daniel’s first, second, and third issues.
D. Notice
In his fourth issue, Daniel contends that the trial court erred by awarding
sanctions because it did not provide him with notice and an opportunity to respond
19 to Irene’s request. Irene responds that Daniel failed to preserve error on this issue
under Rule of Appellate Procedure 33.1.6
Civil Practice and Remedies Code section 10.003 provides, “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.”
Id. § 10.003. However, to preserve a complaint for appellate review, the record must
show that the complaint was made to the trial court with sufficient specificity to
make the trial court aware of the complaint. TEX. R. APP. P. 33.1(a)(1)(A). To
preserve error for lack of notice of sanctions, a party must object to lack of adequate
notice in the trial court, object to the hearing going forward, or move for a
continuance. Low, 221 S.W.3d at 618.
At the hearing on the protective order and Irene’s request for sanctions, Daniel
did not object based on lack of notice concerning the sanctions request, object to the
hearing going forward, or move for a continuance. See id. Therefore, he has not
preserved this issue for appellate review.7 See id.; TEX. R. APP. P. 33.1(a)(1)(A).
6 Irene also responds that Daniel waived this issue by inadequately briefing it. See TEX. R. APP. P. 38.1(i). Because we conclude that Daniel waived this issue under Rule 33.1, we need not address this argument. See TEX. R. APP. P. 47.1. 7 To the extent that Daniel argues in his reply brief that his due process rights were violated by lack of notice, he has also waived this issue. See Low v. Henry, 221 S.W.3d 609, 618–19 (Tex. 2007) (concluding that failure to object to lack of notice that appellee’s conduct would be considered at hearing waives due process complaint based on lack of notice). 20 Even if Daniel had preserved this complaint for appellate review, we disagree
that he was not provided adequate notice of the allegations and an opportunity to
respond. Irene’s answer expressly requested sanctions against Daniel under Civil
Practice and Remedies Code chapter 10. Irene’s answer alleged that Daniel’s
application for protective order contained false allegations and that the application
was “collectively brought for the sole purposes of harassing [Irene], creating an
unnecessary delay, and a needless increase in the cost of attorney’s fees and litigation
costs to [Irene].” The answer requested sanctions as well as attorney’s fees and costs.
These are the same arguments Irene raised at the hearing. Thus, Daniel had notice
that Irene sought sanctions against him and notice of the allegations supporting the
request. See Low, 221 S.W.3d at 618 (concluding that motion for sanctions provided
sufficient notice of chapter 10 sanctions).
Furthermore, the trial court considered Irene’s request for sanctions at a
hearing attended by Daniel, who appeared pro se. Daniel does not argue that the trial
court prohibited him from responding to the allegations, and the record shows that
he was provided an opportunity to respond to Irene’s request. Thus, Daniel had an
opportunity to respond to the allegations against him. See id. (“Even if Henry had
preserved his notice complaint, he had a reasonable opportunity to respond under
section 10.003[.]”) (citation omitted).
We overrule his fourth issue.
21 Rule 45 Damages
On appeal, Irene requests that this Court award her damages under Rule of
Appellate Procedure 45 because Daniel filed a “frivolous” appeal. She asserts that
she was required to “incur more attorney’s fees, costs of court, etc.” by filing a
responsive brief, and if she did not file an appellate brief, “it is likely this Court may
have ruled in [Daniel’s] favor, causing [Irene] even more delay, harassment,
attorney’s fees and costs.” Daniel did not respond to this request in his reply brief.
Rule of Appellate Procedure 45 provides:
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. In determining whether to award damages, the court must not consider any matter that does not appear in the record, briefs, or other papers filed in the court of appeals.
TEX. R. APP. P. 45.
Irene does not cite any legal authority other than Rule 45 itself to support her
request for damages. And except for the quoted language above from her brief, Irene
does not provide any analysis establishing that Daniel’s appeal is frivolous or what
amount of damages constitutes “just damages” in this case. See id. (authorizing just
damages for filing frivolous appeal); see also TEX. R. APP. P. 38.1(i) (requiring
appellant’s brief to contain clear and concise argument for contentions made),
38.2(a)(1) (requiring appellee’s brief to conform to requirements of Rule 38.1 for
appellant’s brief with exceptions not applicable here). To the contrary, she asserts
22 that “it is likely this Court may have ruled in [Daniel’s] favor” if she did not file a
responsive appellate brief. Although we ultimately determined that Daniel’s issues
lacked merit, Irene has not established that the appeal was frivolous or that she is
entitled to damages under Rule 45. See Mailhot v. Mailhot, 124 S.W.3d 775, 778
(Tex. App.—Houston [1st Dist.] 2003, no pet.) (declining to conclude that meritless
appeal was frivolous under Rule 45). We deny Irene’s request for damages.
Conclusion
We affirm the trial court’s order awarding sanctions. We deny Irene’s request
for damages under Rule of Appellate Procedure 45.
David Gunn Justice
Panel consists of Chief Justice Adams and Justices Gunn and Guiney.