COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-12-00385-CV
RONALD HARDEN APPELLANT
V.
SHAN MERRIMAN APPELLEE
----------
FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
MEMORANDUM OPINION 1
Appellant Ronald Harden appeals the trial court’s order that granted
summary judgment in favor of appellee Shan Merriman and imposed a sanction
of $1,500 against appellant. In three issues, appellant contends that the trial
court abused its discretion by denying his motion for continuance; that the trial
court improperly ruled on appellee’s traditional and no-evidence motion for
summary judgment with a pending motion for continuance, with improper notice
1 See Tex. R. App. P. 47.4. of the summary judgment hearing to appellant, and without affording appellant an
adequate opportunity to complete discovery; and that the trial court improperly
imposed a sanction upon appellant without conducting an evidentiary hearing or
identifying sanctionable conduct in its order. We modify the trial court’s judgment
and affirm it as modified. 2
Background Facts
Appellant, who is an attorney, filed a lawsuit against appellee in December
2011, alleging personal injury damages from an automobile accident that had
occurred on Christmas Eve in 2009. In his petition, appellant asserted claims of
negligence, negligence per se, and gross negligence while contending that
appellee had “unlawfully slammed into the rear of [appellant’s] vehicle” on an ice-
covered roadway. He also claimed that as a result of the collision, he had
suffered severe personal injuries that had caused permanent bodily impairment.
In January 2012, appellee answered the lawsuit with a general denial, and at
some point in early 2012, appellee served written discovery on appellant.
On March 27, 2012, through a letter, appellee’s counsel advised appellant
that appellee “neither owned nor was driving the vehicle that was involved in the
accident” related to appellant’s lawsuit. 3 The letter informed appellant that
2 See Tex. R. App. P. 43.2(b). 3 This letter belies appellant’s repeated claims on appeal that appellee’s motion for summary judgment was the first time that appellee claimed that he had no liability for the accident.
2 appellee’s daughter, Ashley Merriman, had owned the car that appellant had
been in an accident with and that Ashley’s boyfriend, Josh Bennett, had been
driving the car at the time of the accident. Thus, in the letter, appellee’s counsel
asked appellant to dismiss the lawsuit against appellee and represented that if
appellant did not dismiss it, appellee would pursue a summary judgment and the
recovery of fees and expenses associated with seeking summary judgment.
Appellant did not respond to the letter, so in late April 2012, appellee filed,
in one document, a traditional and no-evidence motion for summary judgment
(on the ground that he could not have breached any legal duty because he did
not own or drive the car at issue) as well as a motion for sanctions under
chapters 9 and 10 of the civil practice and remedies code 4 and rule of civil
procedure 13. 5 To his motion for summary judgment, appellee attached
affidavits from himself and Ashley proving that he was not personally involved in
the accident leading to appellant’s suit and did not own the automobile that
crashed into appellant’s car. In his motion for sanctions, appellee alleged that
appellant’s claims were “baseless, groundless[,] and frivolous” and that appellant
had “ignored counsel’s request” to dismiss appellee from the suit. Appellee
stated, “Since [appellant] filed suit against [appellee], who is obviously not a
proper party and has nothing to do with the car accident made the basis of this
4 See Tex. Civ. Prac. & Rem. Code Ann. §§ 9.001–.014, 10.001–.006 (West 2002). 5 See Tex. R. Civ. P. 13.
3 suit, [appellee] requests [that] sanctions be imposed . . . .” Also, appellee argued
that the sanction could be predicated on appellant’s refusal to dismiss appellee
from the suit. Appellee asked the trial court to order a sanction of $2,000 as an
approximation of the “amount . . . incurred . . . to prosecute the motion for
summary judgment.”
On May 2, 2012, the trial court set a hearing for 2:30 p.m. on May 31, 2012
to consider appellee’s motions for summary judgment and for sanctions. Near
midnight on May 30, 2012, after the deadline for responding to the motion for
summary judgment, 6 appellant filed a verified motion for a continuance of the
summary judgment and sanctions hearing. Appellant stated that he could not be
at the hearing that had allegedly been “set for 9:00 a.m.” on May 31 because he
was scheduled to represent a criminal defendant at a hearing on a motion to
revoke probation in a different county at that time. He also stated that no other
attorney could appear for him at the summary judgment and sanctions hearing.
Furthermore, he contended that discovery was incomplete and that he desired to
take appellee’s, Ashley’s, and Josh’s depositions. Appellant stated, “Once the
facts are fully developed, if the evidence bears out the sworn affidavit testimony
of [appellee and Ashley], [appellant] will voluntarily dismiss the claims raised
against [appellee].” Finally, in a written declaration that appellant attached to his
motion for continuance, appellant stated that at the scene of the accident, he had
6 See Tex. R. Civ. P. 166a(c).
4 been “presented with an insurance card bearing the name of Shan Merriman
. . . . The male driving the [car] identified himself as Shan Merriman and the
female passenger did not contradict this assertion.”
Appellant did not file a response to appellee’s motions for summary
judgment and sanctions, nor did he appear at the hearing on May 31. On the
day of the hearing, the trial court granted summary judgment in favor of appellee,
dismissed appellant’s claims with prejudice, and imposed sanctions against
appellant for $1,500. The trial court denied appellant’s motion for continuance in
an order issued on June 4, 2012, stating that the motion had been untimely filed.
About a month later, appellant filed a motion for new trial, contending that
summary judgment had been improperly granted because, among other reasons,
his allegations in his suit against appellee were based upon false statements
made by Ashley and Josh at the scene of the accident 7 and appellee’s insurance
carrier had already accepted liability for the accident, which allegedly misled him
into suing appellee and also allegedly barred appellee from denying liability.
Appellant also argued that the trial court had abused its discretion by not granting
his motion for continuance because of the conflict with appellant’s representation
7 Appellant stated in an affidavit that on the day of the accident, Ashley and Josh had produced an insurance card containing appellee’s name. Appellant also stated that appellee’s insurance carrier later paid a $661.43 property damage claim but that the carrier did not pay personal injury compensation as requested by appellant. On appeal, appellant contends that appellee, Ashley, and Josh participated in a fraudulent scheme by allowing appellee’s insurer to pay a property damage claim when appellee was not a party to the accident.
5 of a client in a criminal case, because appellant had desired to conduct
discovery, and because the discovery period had not expired when the trial court
granted summary judgment. Finally, appellant asserted that the imposed
sanction was unjust and a violation of his constitutional rights to due process
because the trial court had not held an evidentiary hearing and had not set out
findings supporting the sanctions. The trial court denied appellant’s motion for
new trial by operation of law, 8 and he brought this appeal. 9
The Denial of Appellant’s Motion for Continuance
In his first two issues, appellant contends that the trial court abused its
discretion by denying his motion for continuance and thus erred by conducting a
hearing and ruling on appellee’s motions for summary judgment and sanctions.
Appellant contends that the trial court should have granted the motion for
continuance because the court should have given his representation of a criminal
8 See Tex. R. Civ. P. 329b(c). 9 On September 17, 2012, appellant filed a request for findings of fact and conclusions of law in the trial court with regard to the court’s May 31, 2012 summary judgment and sanctions order. The trial court did not file findings of fact and conclusions of law. On appeal, in the statement of the case portion of appellant’s brief, he asks for “this Court’s aid in requiring the Trial Court to file such findings of fact and conclusions of law.” But appellant’s request in the trial court was untimely. See Tex. R. Civ. P. 296 (stating that a request for findings of fact and conclusions of law “shall be filed within twenty days after the judgment is signed”); Wal-Mart Stores, Inc. v. Kelley, 103 S.W.3d 642, 645 (Tex. App.—Fort Worth 2003, no pet.) (“[B]ecause appellant failed to timely file its request, it has waived its complaint regarding the court’s failure to issue findings of fact and conclusions of law.”). Thus, to the extent that appellant asks us to abate this appeal for the trial court’s filing of findings of fact and conclusions of law, we deny that request.
6 defendant precedence over the summary judgment and sanctions hearing,
because he was allegedly given insufficient notice of the summary judgment
hearing, and because he needed more time to conduct discovery in light of
appellee’s statement that he was not the driver of the car that crashed into
appellant’s car.
We review a trial court’s ruling on a motion for continuance for an abuse of
discretion. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800
(Tex. 2002). We do not substitute our judgment for that of the trial court. In re
Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002) (orig. proceeding). Instead,
we must determine whether the trial court’s action was so arbitrary and
unreasonable as to amount to a clear and prejudicial error of law. Joe v. Two
Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). The test is whether
the trial court acted without reference to guiding rules or principles. Cire v.
Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004).
Allegedly conflicting criminal and civil settings
In his first issue, appellant contends that the trial court abused its
discretion by denying a continuance because attending the summary judgment
and sanctions hearing would have violated obligations, including fiduciary duties,
to his criminal client. Appellant insists that the trial court, as a matter of law,
should have granted his continuance because a criminal hearing statutorily
preempts a civil hearing. He also states that he “made the only choice permitted”
by representing his incarcerated client “as was his duty.”
7 We agree with appellee, however, that appellant did not prove the factual
premise undergirding his first issue, which is that the summary judgment and
sanctions hearing actually conflicted with his representation of a criminal
defendant. In his motion for continuance, appellant asserted that he could not
attend a 9:00 a.m. hearing because of a conflict, but the trial court’s hearing on
the motions for summary judgment and for sanctions was actually set for 2:30
p.m. Appellant’s motion for continuance did not provide details about the criminal
hearing to indicate that it would last long enough to prevent appellant’s
appearance at the summary judgment and sanctions hearing later that afternoon.
Furthermore, even if appellant had proven that the criminal and civil
hearings actually conflicted, we cannot conclude that the trial court abused its
discretion by denying the continuance based on that conflict under the
circumstances of this case. Appellant’s motion for continuance did not establish
how long appellant had known about the alleged conflict or whether he had
sought to reset the criminal hearing to avoid the alleged conflict, but the record
shows that appellant waited until the literal eve of the summary judgment and
sanctions hearing to inform the trial court about the alleged conflict and to seek a
continuance. Continuances should not be granted “except for sufficient cause
supported by affidavit, or by consent of the parties, or by operation of law.” Tex.
R. Civ. P. 251. Our sister courts have held that a trial court does not abuse its
discretion by denying a motion for continuance when the movant first informs the
trial court about the reason for a continuance shortly before the setting at issue or
8 when the movant did not make attempts to avoid a conflict in settings apart from
filing the motion for continuance. See Betts v. Betts, No. 14-11-00267-CV, 2012
WL 2803750, at *3 (Tex. App.—Houston [14th Dist.] July 10, 2012, pet. denied)
(mem. op.) (citing In re K.A.R., 171 S.W.3d 705, 711 (Tex. App.—Houston [14th
Dist.] 2005, no pet.)); Christus Health v. Ragsdale, No. 13-10-00326-CV, 2011
WL 3854145, at *6 (Tex. App.—Corpus Christi Aug. 31, 2011, no pet.) (mem.
op.) (stating that whether a “a party delayed unreasonably in bringing its motion
for continuance is a factor a reviewing court may consider in determining whether
a trial court abused its discretion in denying a motion for continuance”); R.M.
Dudley Constr. Co. v. Dawson, 258 S.W.3d 694, 701 (Tex. App.—Waco 2008,
pet. denied); see also Beutel v. Dallas Cnty. Flood Control Dist., No. 1, 916
S.W.2d 685, 693 (Tex. App.—Waco 1996, writ denied) (“We cannot find that the
trial court committed a clear abuse of discretion in refusing to grant the motion
[for continuance] when it found that the issue could have been brought before the
court several months earlier, rather than one week before trial.”).
Finally, we note that in support of his argument in his first issue, appellant
cites an article from the code of criminal procedure to contend that criminal cases
must be given priority over civil cases. See Tex. Code Crim. Proc. Ann. art.
32A.01 (West 2006). The article provides that “[i]nsofar as is practicable, the trial
of a criminal action shall be given preference over trials of civil cases . . . .” Id.
(emphasis added). Even if article 32A.01 applies to criminal and civil hearings
rather than only trials under its explicit language, appellant did not prove that the
9 criminal and civil hearings relevant to this appeal actually conflicted as to trigger
any application of article 32A.01. Also, although appellant contends in his brief
that article 32A.01 is “not advisory,” we have previously held the exact opposite.
Cain v. State, 747 S.W.2d 514, 516 (Tex. App.—Fort Worth 1988, no writ) (“We
are of the opinion that article 32A.01, as applied to the courts, is advisory; the
language itself says ‘[i]nsofar as is practicable. . . .’”).
For all of these reasons, we hold that the trial court did not abuse its
discretion by denying appellant’s motion for continuance on the basis of
conflicting criminal and civil hearing settings, and we overrule his first issue. See
BMC Software Belg., N.V., 83 S.W.3d at 800.
The notice of the summary judgment hearing and appellant’s alleged need to conduct discovery
In his second issue, appellant contends that he did not receive sufficient
notice of the summary judgment and sanctions hearing and that the trial court
abused its discretion by denying his motion for continuance without affording him
an adequate opportunity to complete discovery.
Generally, with notice to opposing counsel, the motion for summary
judgment must be filed and served at least twenty-one days before the time
specified for the hearing. See Tex. R. Civ. P. 166a(c); Rockwell v. Wells Fargo
Bank, N.A., No. 02-12-00100-CV, 2012 WL 4936619, at *1 (Tex. App.—Fort
Worth Oct. 18, 2012, no pet.) (mem. op.). In appellee’s motions for summary
judgment and sanctions, which contained a file stamp dated April 26, 2012,
10 appellee stated that he had served the motions on appellant on April 25, 2012.
The trial court signed its notice of the May 31, 2012 hearing on May 2, 2012.
Nonetheless, appellant contends for the first time on appeal that he
received appellee’s motions “on or about May 11, 2012, less than twenty-one
days prior to the hearing.” To support that assertion, appellant refers to
documents that are attached to his brief but that are not in the record. Appellee
has filed a motion to strike those documents because they are not contained in
the clerk’s record, and we grant that motion in part. 10 See Carlton v. Trinity
Universal Ins. Co., 32 S.W.3d 454, 458 (Tex. App.—Houston [14th Dist.] 2000,
pet. denied); Crossley v. Staley, 988 S.W.2d 791, 794 (Tex. App.—Amarillo
1999, no pet.); Siefkas v. Siefkas, 902 S.W.2d 72, 74 (Tex. App.—El Paso 1995,
no writ) (“It is elementary that, with limited exceptions not material here, an
appellate court may not consider matters outside the appellate record.”). Even if
we could consider those documents, appellant did not raise the timeliness of his
receipt of notice of the hearing on the summary judgment and sanctions motions
in the trial court, and he therefore waived that argument for our review. See Tex.
R. App. P. 33.1(a); Rockwell, 2012 WL 4936619, at *1–2; McCuen v. Huey, 255
S.W.3d 716, 738 (Tex. App.—Waco 2008, no pet.) (“[A] party must object to a
lack of notice in the trial court to preserve that issue for appellate review.”).
10 We deny, however, appellee’s motion for sanctions that he filed in this court.
11 Thus, we overrule the part of appellant’s second issue that complains of allegedly
insufficient notice of the summary judgment hearing.
Next, appellant contends that the trial court abused its discretion by
denying his motion for continuance because he needed more time to “conduct
discovery of [a]ppellee once [appellee] revealed that he was not the male driver
at the accident scene.” Appellant accuses appellee of concealing facts and then
seeking “to end the case based upon [the] concealed facts.”
A trial court may refuse to grant a motion for summary judgment when the
party opposing the motion shows the need for discovery. Tex. R. Civ. P.
166a(g). A litigant who fails to diligently use the rules of civil procedure for
discovery purposes, however, is not entitled to a continuance. State v. Wood Oil
Distrib., Inc., 751 S.W.2d 863, 865 (Tex. 1988). In deciding whether a trial court
abused its discretion in denying a motion for continuance seeking additional time
to conduct discovery, we consider factors such as the length of time the case has
been on file, the materiality and purpose of the discovery sought, and whether
the party seeking the continuance has exercised due diligence to obtain the
discovery sought. Joe, 145 S.W.3d at 161. An affidavit asserting diligence in
obtaining discovery must state with particularity what diligence was used;
conclusory allegations of diligence are insufficient. Landers v. State Farm
Lloyds, 257 S.W.3d 740, 747 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (op.
on reh’g) (citing Gregg v. Cecil, 844 S.W.2d 851, 853 (Tex. App.—Beaumont
1992, no writ)).
12 In his motion for continuance, appellant stated in one paragraph that
discovery was “incomplete” and that he desired to take the depositions of
appellee, Ashley, and Josh concerning their claims that Josh was driving the
vehicle at the time of the accident and that Ashley owned it. But appellant did not
assert that he had been diligent in seeking discovery or specify any facts
showing such diligence. As appellee argues on appeal, appellee provided notice
to appellant on March 27, 2012 about appellee’s assertion that he neither owned
nor was driving the car that was involved in the accident. The March 27 letter
informed appellant that appellee would seek summary judgment if he did not
receive a response to the letter. The record does not reveal an attempt by
appellant to conduct any form of discovery from March 27, 2012 through
May 30, 2012, which was when appellant filed his motion for continuance and
which was more than one month after appellee filed his motion for summary
judgment. 11 Thus, although appellant’s lawsuit had been on file for only
approximately five months at the time of the summary judgment hearing and
although testimony provided by appellee, Ashley, and Josh might have been
material, we cannot conclude that the trial court abused its discretion by denying
appellant’s motion for continuance because the record establishes appellant’s
lack of diligence in seeking discovery between the time he knew of facts
establishing his apparent need for it and the eve of the summary judgment
11 Also, the record does not establish any attempt by appellant to conduct discovery before March 27, 2012.
13 hearing. See Wood Oil Distrib., Inc., 751 S.W.2d at 865; see also Aerobic Maint.
& Serv., Inc. v. First United Bank & Trust Co., No. 02-08-00232-CV, 2009 WL
1425179, at *4 (Tex. App.—Fort Worth May 21, 2009, no pet.) (mem. op.)
(holding that although a suit had been pending for only two months at the time
that the appellee sought summary judgment, a trial court did not abuse its
discretion by denying a motion for continuance because the appellant had not
diligently sought discovery and had asked for a continuance only three days
before the submission of the motion for summary judgment); Clark v. Compass
Bank, No. 02-07-00050-CV, 2008 WL 2168292, at *3 (Tex. App.—Fort Worth
May 22, 2008, no pet.) (mem. op.) (upholding a trial court’s denial of a motion for
continuance because, in part, the appellant did not seek discovery within thirty-
five days of the date the appellee filed a motion for summary judgment that
contained new material allegations); Landers, 257 S.W.3d at 747 (concluding
that a trial court did not abuse its discretion by denying a motion for continuance
when the appellant waited to seek the continuance until after the deadline for
responding to the motion for summary judgment and when neither the motion for
continuance nor an affidavit attached to it contained facts establishing diligence
in seeking discovery). We overrule the remaining part of appellant’s second
issue.
The Propriety of Sanctions
In his third issue, appellant asserts that the trial court’s $1,500 sanction
against him is improper. We review a trial court’s imposition of sanctions for an
14 abuse of discretion. Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583
(Tex. 2006). A judgment imposing sanctions will be upheld “on any applicable
theory that finds support in the record.” Dunavin v. Meador, No. 02-07-00230-
CV, 2008 WL 2780782, at *4 (Tex. App.—Fort Worth July 17, 2008, no pet.)
(mem. op.).
Appellant argues, among other contentions, that the trial court did not state
sanctionable conduct within its order and that the sanction against him was
“improvidently granted and without foundation in fact or law.” In the trial court, in
the same document in which he sought summary judgment, appellee sought
sanctions on the basis that appellant’s claims were “baseless, groundless[,] and
frivolous.” Specifically, appellee argued that he had advised appellant that
appellee was not a proper party, that appellant had “ignored” appellee’s request
to dismiss the suit, that appellee had therefore been forced to file his motion for
summary judgment, and that the filing of the motion for summary judgment
warranted a sanction against appellant in the amount of $2,000. Appellee relied
on rule of civil procedure 13 and chapters 9 and 10 of the civil practice and
remedies code to support his claim for sanctions. When the trial court granted
the sanction against appellant, it incorporated appellee’s motion for sanctions by
reference, stating,
IT IS FURTHER ORDERED that Defendant’s motion for sanctions against Plaintiff is hereby granted for the reasons set forth therein. IT IS HEREBY ORDERED that Plaintiff is to pay a monetary fine in the amount of [$1,500], which reflect[s] reasonable sanctions for Plaintiff’s groundless and baseless pleadings filed in this lawsuit
15 pursuant to Chapters 9 and 10 of the Texas Civil Practice and Remedies Code and/or Rule 13 of the Texas Rules of Civil Procedure. [Emphasis added.]
Rule of civil procedure 13 states that a trial court may award sanctions
against a party when the party files a pleading or motion that is groundless and
brought in bad faith or is groundless and brought for the purpose of harassment.
Tex. R. Civ. P. 13. Under rule 13, when a trial court imposes sanctions, it must
state the “particulars” of good cause for the sanctions in its order. Id. Similarly,
chapter 9 of the civil practice and remedies code precludes parties from filing
pleadings that are groundless and brought in bad faith or groundless and brought
for the purpose of harassment, and the chapter allows the trial court to award
sanctions against a party filing such a pleading. See Tex. Civ. Prac. & Rem.
Code Ann. §§ 9.011–.012(a), (c). Chapter 10 of the civil practice and remedies
code allows the filing of a motion for sanctions when a party signs and presents a
pleading for an improper purpose (such as harassment) or, after a reasonable
inquiry, asserts legal or factual contentions in a pleading that have no support to
the signatory’s best knowledge, information, and belief. Id. §§ 10.001–.002(a),
.004(a). Chapter 10 requires a court imposing sanctions to describe the conduct
that violated the chapter and to “explain the basis for the sanction imposed.” Id.
§ 10.005.
With regard to sanctions, courts generally presume that pleadings are filed
in good faith. GTE Commc’ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 730 (Tex.
1993) (orig. proceeding); see also Tex. R. Civ. P. 13. The party seeking
16 sanctions bears the burden of overcoming this presumption of good faith.
Tanner, 856 S.W.2d at 730–31; see In re R.V., 977 S.W.2d 777, 782 (Tex.
App.—Fort Worth 1998, no pet.) (“[A] party seeking sanctions has the burden of
establishing a right to relief.”).
Each basis for sanctions that appellee urged in the trial court focuses the
culpability of a party’s conduct upon the same time frame: the date that the party
signed and filed the pleading at issue. See Dunavin, 2008 WL 2780782, at *6
(stating that under chapter 10, courts must “examine the circumstances existing
at the time the pleading was filed, not at the time of the sanctions hearing”); see
also Tex. Civ. Prac. & Rem. Code Ann. §§ 9.011–.012 (connecting sanctions
under chapter nine to the signing of a pleading); R.M. Dudley Constr. Co., 258
S.W.3d at 711 (stating the circumstances pivotal to the determination of whether
sanctions should issue are those in existence at the time that the pleading was
signed and filed and that sanctions for frivolous or groundless pleadings “do not
apply to the pursuit of an action later determined to be groundless after pleadings
were filed”); Shaw v. Cnty. of Dallas, 251 S.W.3d 165, 170–71 (Tex. App.—
Dallas 2008, pet. denied) (“When determining whether rule 13 sanctions are
proper, the trial court must examine the circumstances existing at the time the
pleading was filed.”).
At the time appellee filed its motion for sanctions, appellant had filed only
one pleading, its original petition, in December 2011. In the trial court, although
appellee cited rule 13 and chapters 9 and 10, he predicated his motion for
17 sanctions not on appellant’s petition but on appellant’s refusal to dismiss
appellee from the suit after receiving appellee’s March 2012 letter. Specifically,
in the motion, appellee stated,
Defendant’s counsel . . . previously advised Plaintiff that the claims against Defendant Mr. Merriman were baseless and groundless as he is not a proper party. . . . Plaintiff has ignored counsel’s request and forced Defendant to file this motion in order to get Mr. Merriman dismissed from this suit, who is obviously not a proper party as he had absolutely nothing to do with the motor vehicle accident in question. . . .
....
Defendant, by and through his attorneys, had to prepare, file and argue this motion to the Court. This obviously cost needless time and money. Since Defendant Shan Merriman is obviously not involved in the accident in question, and since Plaintiff refused to dismiss Mr. Merriman from the suit, Plaintiff should be sanctioned.
Similarly, on appeal, appellee argues that the sanctions may be supported by the
facts that
(a) Appellee had absolutely no involvement in the Accident, (b) Appellee notified Appellant of his mistake and gave Appellant an opportunity to correct it, (c) due to Appellant’s refusal to dismiss this suit, Appellee was forced to file the Motion for Summary Judgment, and (d) the sanction sought was equal to the attorney’s fees incurred in connection with the Motion for Summary Judgment. . . . In that the Motion offered evidence not simply that Appellant’s pleadings were incorrect, but also that Appellant took no action to correct his mistake after he learned of it, the Motion contained all the allegations . . . required in order to impose sanctions.
Neither appellee’s motion for sanctions nor his brief on appeal contain
references to facts establishing that appellant knew or believed that he was suing
the wrong person at the time he filed his petition rather than at a later time, and
18 we have found no such facts in our review of the record. Also, appellee did not
present any evidence suggesting that appellant harbored bad faith, intended to
harass appellee, or had an otherwise improper purpose in December 2011, when
he filed his petition. See Tex. Civ. Prac. & Rem. Code Ann. § 9.011; Tex. R. Civ.
P. 13. And as illustrated above, appellee premised his request for sanctions in
the trial court on a failure to adequately respond to the letter, not on a failure to
reasonably inquire about the facts contained in the petition before filing it. 12 See
Tex. Civ. Prac. & Rem. Code Ann. § 10.001(3).
We also note that both the motion for sanctions and the affidavit of the
attorney who prepared the motion explicitly state that appellee desired sanctions
in the form of attorney’s fees resulting from the prosecution of the motion for
summary judgment and sanctions. This suggests that appellee sought to
sanction appellant for his omission following the March 2012 letter, not his action
of signing and filing his petition.
In summary, we hold that the trial court abused its discretion by awarding
appellee a sanction of $1,500 because the record does not establish that the trial
court identified any sanctionable conduct in its order, including the order’s
reference to appellee’s motion for sanctions. See Jones, 192 S.W.3d at 583; see
12 The record indicates the opposite. After the trial court signed its order sanctioning appellant, he presented evidence that at the scene of the accident, he had received an insurance card bearing appellee’s name. Appellant also proved that in January 2010, appellee’s insurance carrier paid a property damage claim for its insured, “SHAN MERRIMAN.”
19 also Dunavin, 2008 WL 2780782, at *6–7; Karagounis v. Prop. Co. of Am., 970
S.W.2d 761, 764 (Tex. App.—Amarillo 1998, pet. denied) (op. on reh’g) (stating,
with regard to rule 13, that the rule says “nothing about levying sanctions if one
pursues an action or pleading thought legitimate when filed but subsequently
found baseless”). We agree with appellant that under the circumstances
presented here, the sanctions are “without foundation in fact or law.” We
therefore sustain appellant’s third issue, which means that we will modify the
portion of the trial court’s May 31, 2012 order awarding sanctions to appellee to
delete the award. See Dunavin, 2008 WL 2780782, at *7; Barkhausen v.
Craycom, Inc., 178 S.W.3d 413, 423 (Tex. App.—Houston [1st Dist.] 2005, pet.
denied).
Conclusion
Having sustained appellant’s third issue, we modify the trial court’s
judgment to delete the monetary sanctions award of $1,500. Having overruled
appellant’s other two issues, we affirm the trial court’s judgment as modified.
TERRIE LIVINGSTON CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; WALKER and MEIER, JJ.
DELIVERED: October 31, 2013