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

Opinion

ACCEPTED 03-15-00455-CV 8390479 THIRD COURT OF APPEALS AUSTIN, TEXAS 12/29/2015 11:54:22 AM JEFFREY D. KYLE CLERK NO. 03-15-00455-CV ________________________________ FILED IN 3rd COURT OF APPEALS IN THE COURT OF APPEALS AUSTIN, TEXAS FOR THE THIRD JUDICIAL DISTRICT12/29/2015 11:54:22 AM OF TEXAS AT AUSTIN JEFFREY D. KYLE Clerk ________________________________

SCOTT P. OGLE, Appellant

V.

MAELI HECTOR, a/k/a MAELI ARELLANO, a/k/a MAELI JOHNSON, Appellee ________________________________

On Appeal from County Court at Law Number One of Travis County, Texas The Honorable Todd Wong Presiding in Cause No. C-1-CV-14-011792 _____________________________________

APPELLANT’S BRIEF

Scott Ogle TBN: 00797170 Law Office of Scott P. Ogle 2028 Ben White Blvd. Austin, TX 78704 Phone: (512) 442-8833 Fax: (512) 442-3256 soglelaw@peoplepc.com Appellant Pro Se

No Oral Argument Requested IDENTITY OF PARTIES AND COUNSEL

The following is a complete list of all parties to the trial court’s final judgment, as well as the names and addresses of all trial and appellate counsel.

Trial Judge: The Honorable Todd Wong, presiding judge, Travis County Court Number One

Appellant: Scott P. Ogle

Appellant’s Trial and Scott Ogle Appellate Counsel: TBN: 00797170 Law Office of Scott P. Ogle 2028 Ben White Blvd. Austin, TX 78704

Appellee: Maeli Hector, a/k/a Maeli Arrellano, a/k/a Maeli Johnson

Appellees’ Trial and Paul A. Batrice Appellate Counsel: TBN: 24048344 Law Office of Paul Batrice 1114 Lost Creek Blvd., Ste. 440 Austin, Texas 78746

i TABLE OF CONTENTS page

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i.i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iv

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

POINTS OF ERROR PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . .2

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . 5

I. The trial court erred when it awarded attorney fees to Appellee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

A. Appellee Failed to Request Attorneys’ Fees. . . . . . . . . . . 5

B. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

C. Authority to Recover Attorney Fees. . . . . . . . . . . . . . . . .8

D. Controlling Rules and Statutes. . . . . . . . . . . . . . . . . . . . 9

E. Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

II. The amount of the attorneys’ fees awarded to Appellee were unreasonable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

A. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

ii B. Controlling Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

C. Application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

III. The trial court erred when it granted Appellee’s Motion for Summary Judgment on Promissory Estoppel. . . . . . . . . . . . . . . . . . . . . . . . . . . . .24

A. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . .24

B. Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26

PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . 28

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

iii TABLE OF AUTHORITIES

Cases page

Aaron Rents, Inc. v. Travis Cent. Appraisal Dist., 212 S.W.3d 665 (Tex. App.—Austin 2006, no pet.). . . . . . 1.8

Acad. Corp. v. Interior Buildout & Turnkey Constr., Inc., 21 S.W.3d 732 (Tex. App.— Houston [14th Dist.] 2000, no pet.). . . . . . . . . . . . . . 21

Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997). . . . . . . . . . . . . . . . . . . 21, 22

Barnum v. Munson, Munson, Pierce and Cardwell, P.C., 998 S.W.2d 284 (Tex. App.— Dallas 1999, pet. denied). . . . . . . .10, 11, 12, 13, 15, 18

In re Bennett, 960 S.W.2d 35 (Tex. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Burnside Air Conditioning & Heating, Inc. v. T.S. Young Corp., 113 S.W.3d 889 (Tex. App.—Dallas 2003, no pet.). . . . . . .21

C.M. Asfahl Agency v. Tensor, Inc., 135 S.W.3d 768 (Tex. App.— Houston [1st Dist.] 2004, no pet.). . . . . . . . . . . . . . . 21

Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195 (Tex. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . 25

Cire v. Cummings, 134 S.W.3d 835 (Tex. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . 7

City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . 19

iv City of Fort Worth v. Gause, 129 Tex. 25, 101 S.W.2d 221 (1937). . . . . . . . . . . . . . . . . . . . .6

Crain v. San Jacinto Sav. Ass’n, 781 S.W.2d 638 (Tex. App.— Houston [14th Dist.] 1989, writ dism’d). . . . . . . . . 5-6

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . 16

Eberstein v. Hunter, 260 S.W.3d 626 (Tex. App.–Dallas 2008, no pet.). . . . .23, 24

Ebner v. First State Bank of Smithville, 27 S.W.3d 287 (Tex. App.–Austin 2000, pet. denied). .26-27

English v. Fischer, 660 S.W.2d 521 (Tex. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . 26

Gorman v. Gorman, 966 S.W.2d 858 (Tex. App.— Houston [1st Dist.] 1998, pet. denied). . . . . . . . .11, 13

Greene v. Young, 174 S.W.3d 291 (Tex. App.– Houston [1st Dist.] 2005, pet. denied). . . . . . . . . . . .16

GTE Communications Sys. Corp. v. Curry, 819 S.W.2d 652 (Tex. App.— San Antonio 1991, no writ). . . . . . . . . . . . . . . . . .11, 13

Holmstrom v. Lee, 26 S.W.3d 526 (Tex. App.–Austin 2000, no pet.). . . . . . . . 25

Keever v. Finlan, 988 S.W.2d 300 (Tex. App.–Dallas 1999, pet. dism’d). . . .10

v Kennedy v. Kennedy, 125 S.W.3d 14 (Tex. App.– Austin 2002, pet. denied).17, 18

KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746 (Tex. 1999). . . . . . . . . . . . . . . . . . . . . . . .25-26

Lear Siegler, Inc. v. Perez, 819 S.W.2d 470 (Tex. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . 25

Loeffler v. Lytle Indep. School Dist., 211 S.W.3d 331 (Tex. App.–San Antonio 2006, no pet.). . 15

Low v. Henry, 221 S.W.3d 609 (Tex. 2007). . . . . . . . . . . . . . . . . . . . . . . 14, 15

Lundy v. Masson, 260 S.W.3d 482 (Tex. App.— Houston [14th Dist.] 2008, pet. denied). . . . . . . . . . 19

In re M.A.N.M., 231 S.W.3d 562 (Tex. App.—Dallas 2007, no pet.). . . . . . .21

McNally v. Guevara, 52 S.W.3d 195 (Tex. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546 (Tex. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . 25

Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554 (Tex. App.—Austin 2004, no pet.). . . . . . 21

Polansky v. Berenji, 393 S.W.3d 362 (Tex. App.–Austin 2012, no pet.). . . 7, 8, 18

Rivera v. Countrywide Home Loans, Inc., 262 S.W.3d 834 (Tex. App.–Dallas 2008, no pet.). . . . .14-15

vi Rizkallah v. Conner, 952 S.W.2d 580 (Tex. App.– Houston [1st Dist.] 1997, no pet.). . . . . . . . . . . . . . . 23

Ryland Group, Inc. v. Hood, 924 S.W.2d 120 (Tex. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . 23

Spohn Hosp. v. Mayer, 104 S.W.3d 878 (Tex. 2003). . . . . . . . . . . . . . . . . . . . . . . 14, 15

State v. Estate of Brown, 802 S.W.2d 898 (Tex. App.–San Antonio 1991, no writ).6, 7

Stoner v. Thompson, 578 S.W.2d 679 (Tex. 1979). . . . . . . . . . . . . . . 6

Stukes v. Bachmeyer, 249 S.W.3d 461 (Tex. App.–Eastland 2007, no pet.). . . . . .19

Sudan v. Sudan, 199 S.W.3d 291 (Tex. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . 25

Toles v. Toles, 45 S.W.3d 252 (Tex. App.– Dallas 2001, pet. denied). . . . . . . . . . . . . . . . . . . . . . 13, 15, 18

Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299 (Tex.2006). . . . . . . . . . . . . . . . . . . . . . . . . . . .8

TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex.1991). . . . . . . . . . . . . . . . . . . . . . . . . . .14

Travelers Indem. Co. of Conn. v. Mayfield, 923 S.W.2d 590 (Tex.1996) (orig. proceeding). . . . . . . . . . . 7

Twin City Fire Ins. Co. v. Vega–Garcia, 223 S.W.3d 762 (Tex. App.–Dallas 2007, pet. denied). . . .20

vii Unifund CCR Partners v. Villa, 299 S.W.3d 92 (Tex. 2009) (per curiam). . . . . . . . . . . .7, 8, 17

Vazquez v. Vazquez, 292 S.W.3d 80 (Tex. App.– Houston [14th Dist.] 2007, no pet.). . . . . . . . . . . . . . 20

Wal–Mart Stores, Inc. v. Canchola, 121 S.W.3d 735 (Tex. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . 19

Woodhaven Partners, Ltd. v. Shamoun & Norman, LLP., 422 S.W.3d 821 (Tex. App.–Dallas 2014, no pet.). . . . .19-20

Zarsky v. Zurich Management, Inc., 829 S.W.2d 398 (Tex. App.— Houston [14 th Dist.] 1992, no writ). . . . . . . . . . . . . 10

Statutes

TEX. CIV. PRAC. & REM. CODE ANN. § 10.001(1) (West 2008) . . . . 9

TEX. CIV. PRAC. & REM. CODE ANN. §§ 10.002(b) (West 2008). . 16

TEX. CIV. PRAC. & REM. CODE ANN. § 10.002(c) (West 2008). . . . .9

TEX. CIV. PRAC. & REM. CODE ANN. §§ 10.003 (West 2008). . . . .16

TEX. CIV. PRAC. & REM. CODE ANN. § 10.004(a) (West 2008). . . . .9

TEX. CIV. PRAC. & REM. CODE ANN. § 10.004(c)(3) (West 2008). . 9

TEX. CIV. PRAC. & REM. CODE ANN. § 10.005 (West 2008). . .14, 15

Court Rules

TEX. R. CIV. P. 13. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

viii TEX. R.CIV. P. 45(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

TEX. R.CIV. P. 78 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

TEX. R.CIV. P. 83. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

TEX. R. CIV. P. 166a(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22, 25, 26

TEX. R. CIV. P. 215.2(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

TEX. R. CIV. P. 301 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

ix STATEMENT OF THE CASE

On December 22, 2014, Appellant Pro Se Scott Ogle (“Ogle”

or “Appellant”) filed suit in Travis County Court Number One

against Maeli Hector, a/k/a Maeli Arellano, a/k/a Maeli Johnson

(“Hector” or “Appellee”), alleging breach of contract. [C.R. 11-14].

Hector timely answered on January 30, 2015. [C.R. 46-49]. Hector

filed her Amended Motion for Summary Judgment on May 6,

2015. [C.R. 259-322]. Ogle filed his Response to the motion on

May 20, 2015. [C.R. 349-362]. Hector’s Motion for Summary

Judgment was granted by the trial court on June 5, 2015. [C.R.

469].1

Hector then filed her Motion for Summary Judgment as to

Promissory Estoppel on June 4, 2015. [C.R. 434-461]. Ogle filed his

response to said motion on June 24, 2015. [497-502]. The trial court

granted Hector’s Motion for Summary Judgment as to Promissory

1 The trial court grounded its order granted summary judgment on the affirmative defense of discharge. Specifically excluded from the order granting summary judgment was Ogle’s promissory estoppel claim. [C.R. 469].

1 Estoppel. [C.R. 503].2 Ogle timely filed his Notice of Appeal on

July 21, 2015. [C.R. 511]. This timely appeal ensued.

POINTS OF ERROR PRESENTED

POINT OF ERROR ONE

I. The trial court erred when it awarded attorney fees to Appellee.

POINT OF ERROR TWO

II. The amount of the attorneys’ fees awarded to Appellee were unreasonable.

POINT OF ERROR THREE

III. The trial court erred when it granted Appellee’s Motion for Summary Judgment on Promissory Estoppel.

STATEMENT OF FACTS

On or about November 21, 2014, Ogle and Hector orally and

via text message agreed to settle an earlier lawsuit between the

two. [C.R. 501]. The terms generally held that Hector would

submit to a lie detector test in return for Ogle’s taking a non-suit

2 Two different orders were signed by the trial court in granting summary judgment on Ogle’s promissory estoppel claim, one dated July 1, 2015, [C.R. 503], and one dated July 8, 2015. [C.R. 505]. The only difference between the two orders being the July 8, 2015, order purported to grant attorney fees, costs, and post-judgment interest to Appellee. [C.R. 505].

2 in that prior lawsuit, as well as the payment of Hector’s attorney

fees in the amount of $2500. [C.R. 501]. However, after Ogle paid

the $2500 attorney fees and non-suited that prior lawsuit, Hector

refused to take the agreed-upon lie detector test. [C.R. 501]. Due

to the statute of limitations having passed, Ogle was unable to

refile his suit, and Hector refused to reimburse Ogle for the $2500

he had previously paid. [501].

Ogle filed the instant breach of contract and promissory

estoppel suit on December 22, 2015. [C.R. 11-14]. Hector timely

answered on January 30, 2015. [C.R. 46-49]. In her Answer, Hector

did not plead for or request attorney fees. [C.R. 46-49].

Hector filed her Amended Motion for Summary Judgment

on May 6, 2015. [C.R. 259-322]. Ogle filed his Response to the

motion on May 20, 2015. [C.R. 349-362]. Hector’s Motion for

Summary Judgment was granted by the trial court on June 5,

2015. [C.R. 469]. In its Order, the trial court specifically grounded

the judgment on the affirmative defense of discharge, and

specifically excluded Ogle’s promissory estoppel claim from the

3 summary judgment. [C.R. 469]. The trial court did not award

attorney fees in that June 5, 2015 order. [C.R. 469-70].

Still prior to the end of discovery, Hector then filed her

Motion for Summary Judgment as to Promissory Estoppel on

June 4, 2015. [C.R. 434-461]. Ogle filed his response on June 24,

2015. [497-502]. The trial court granted Hector’s Motion for

Summary Judgment as to Promissory Estoppel. [C.R. 503]. The

Order Granting Summary Judgment as to Promissory Estoppel

purported to award Hector attorney fees in the amount of $10,150,

courts costs in the amount of $787.42, and post-judgment interest

at the rate of five percent, compounded annually. [C.R. 505]. At

no time did Hector ever file an Amended Answer in the trial court

this cause. [C.R. 2-7].

SUMMARY OF THE ARGUMENT

Because the award of attorney fees did not match the

pleadings, were affirmatively waived by Appellee, were not

supported by sufficient evidence, or were assessed without

opportunity to oppose, the trial court abused its discretion in

4 awarding those fees.

Because Ogle submitted sufficient evidence to raise a

genuine issue of material fact regarding his promissory estoppel

claim, the trial court abused its discretion in granting Appellee’s

Motion for Summary Judgement as to Promissory Estoppel.

ARGUMENT AND AUTHORITIES

POINT OF ERROR ONE (RESTATED)

I. The trial court erred when it awarded attorney fees to Appellee.

A. Appellee Failed to Request Attorneys’ Fees

The trial court erred in granting attorney fees primarily due

to the fact that in her Original Answer, Hector failed to plead for

or request attorneys’ fees. [C.R. 46-49].3 Pleadings determine the

issues and parameters of a contest. Crain v. San Jacinto Sav. Ass’n,

781 S.W.2d 638, 639 (Tex. App.—Houston [14th Dist.] 1989, writ

3 Reiterating this point, in her Motion for Summary Judgment as to Promissory Estoppel, Hector affirmatively waived the recovery of any attorney fees. On page three of the motion, Hector states that “Defendant waives all causes of action and relief not requested in this Motion for Summary Judgment. . . .Defendant is not requesting attorney’s fees at this time.” [C.R. 436].

5 dism’d); see generally TEX. R.CIV. P. 45(a), 78 & 83. Hector never

filed an Amended Answer in this cause. [C.R. 2-7]. Thus, the

active pleading at the time the trial court entered its award of

attorney’s fees did not provide a basis for the assessment of

attorney fees.4

A judgment must be supported by the pleadings and, if not

so supported, it is void. City of Fort Worth v. Gause, 129 Tex. 25, 29,

101 S.W.2d 221, 223 (1937). A party may not be granted relief in

the absence of pleadings to support that relief. Stoner v. Thompson,

578 S.W.2d 679, 682–83 (Tex. 1979). A judgment, absent issues

tried by consent, must conform to the pleadings. TEX. R. CIV. P.

301; State v. Estate of Brown, 802 S.W.2d 898, 900 (Tex. App.–San

Antonio 1991, no writ). Absent a mandatory statute, a trial court’s

jurisdiction to render a judgment for attorneys’ fees must be

invoked by pleadings, and a judgment not supported by

4 Note that the affirmative waiver of her attorneys’ fees distinguishes this case from the rule set forth by the Texas Supreme Court in McNally, where it held that a party’s mere omission of one of his claims from a motion for summary judgment does not waive the claim because a party can always move for partial summary judgment. McNally v. Guevara, 52 S.W.3d 195, 196 (Tex. 2001).

6 pleadings requesting an award of attorney’s fees is a nullity.

Estate of Brown, 802 S.W.2d at 900. Because the order awarding

Hector her attorneys’ fees here was a nullity, this Court should

reverse the assessment of attorneys’ fees and enter a take-nothing

judgment against Hector. Id. Alternative arguments are presented

below.

B. Standard of Review

This Court will review a trial court’s award of attorneys’

fees for abuse of discretion. Travelers Indem. Co. of Conn. v.

Mayfield, 923 S.W.2d 590, 593 (Tex.1996) (orig. proceeding);

Polansky v. Berenji, 393 S.W.3d 362, 367 (Tex. App.–Austin 2012, no

pet.). this Court will also review a trial court’s imposition of

sanctions for abuse of discretion. Cire v. Cummings, 134 S.W.3d

835, 838 (Tex. 2004); Polansky, 393 S.W.3d at 367. A trial court

abuses its discretion if its decision is arbitrary, unreasonable, and

without reference to guiding principles, or if it rules without

supporting evidence. Unifund CCR Partners v. Villa, 299 S.W.3d 92,

97 (Tex. 2009) (per curiam); Polansky, 393 S.W.3d at 367. This

7 Court will review the record to determine whether the trial court

followed guiding rules and principles. Unifund CCR Partners, 299

S.W.3d at 97; Polansky, 393 S.W.3d at 367. The trial court does not

abuse its discretion if it bases its decision on conflicting evidence

and some evidence supports its decision. Unifund CCR Partners,

299 S.W.3d at 97; Polansky, 393 S.W.3d at 367. But if its decision is

contrary to the only permissible view of probative, properly

admitted evidence, then this Court must find that the trial court

has abused its discretion. Unifund CCR Partners, 299 S.W.3d at 97;

Polansky, 393 S.W.3d at 367.

C. Authority to Recover Attorney Fees

Attorney’s fees may be recovered only if permitted by

statute or contract. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d

299, 310–11 (Tex.2006) (“Absent a contract or statute, trial courts

do not have inherent authority to require a losing party to pay the

prevailing party’s fees.”); Polansky, 393 S.W.3d at 368. In her

Amended Motion for Summary Judgment, Hector requested

attorney fees under rule 13 of the Texas Rules of Civil Procedure,

8 and sections 10.002(c) and 10.004(c)(3) of the Texas Civil Practice

and Remedies Code. [C.R. 261]. TEX. R. CIV. P. 13; TEX. CIV. PRAC.

& REM. CODE ANN. §§ 10.002(c), 10.004(c)(3) (West 2002).

D. Controlling Rules and Statutes

Chapter 10 of the Civil Practice & Remedies Code provides

in pertinent part: “A court that determines that a person has

signed a pleading or motion in violation of Section 10.001 may

impose a sanction on the person, a party represented by the

person, or both.” TEX. CIV. PRAC. & REM. CODE ANN. § 10.004(a).

Sanctions under Chapter 10 are authorized if the evidence

establishes that a pleading or motion was brought for an

improper purpose. Id. § 10.001(1). Reasonable inquiry should be

made by the party and attorney to ensure that the pleading is not

filed to harass, delay, or increase the cost of the litigation. Id.

Similarly, Rule 13 provides that, if a pleading, motion, or

other paper is filed in violation of the rule, the trial court shall

impose an appropriate sanction “upon the person who signed it,

a represented party, or both.” TEX. R. CIV. P. 13. Rule 13

9 authorizes sanctions if the evidence establishes that a pleading is

either (1) groundless or brought in bad faith or (2) groundless and

brought to harass. TEX. R. CIV. P. 13. Groundless “means no basis

in law or fact and not warranted by good faith argument for the

extension, modification, or reversal of existing law.” TEX. R. CIV.

P. 13.5

E. Discussion

1. Fees under Rule 13

Rule 13 imposes a duty on the trial court to point out with

particularity the acts or omissions on which sanctions are based.”

Zarsky v. Zurich Management, Inc., 829 S.W.2d 398, 399 (Tex.

App.—Houston [14 th Dist.] 1992, no writ); see also Keever v.

Finlan, 988 S.W.2d 300, 312 (Tex. App.–Dallas 1999, pet. dism’d)

(accord). Requiring the trial court to state the particulars of the

good cause for imposing sanctions is mandatory. Barnum v.

Munson, Munson, Pierce and Cardwell, P.C., 998 S.W.2d 284, 287

5 Rule 13 allows that where a trial court finds a violation of that rule, the court shall impose an appropriate sanction available under Rule 215.2(b) of the Texas Rules of Civil Procedure. TEX. R. CIV . P. 13, 215.2(b).

10 (Tex. App.—Dallas 1999, pet. denied) (trial court’s judgment must

state particulars of good cause for imposing sanctions); Gorman v.

Gorman, 966 S.W.2d 858, 867–68 (Tex. App.—Houston [1st Dist.]

1998, pet. denied) (trial court must state with particularity good

cause for finding that pleadings upon which sanctions are based

are groundless, frivolous, and brought for purposes of

harassment); GTE Communications Sys. Corp. v. Curry, 819 S.W.2d

652, 654 (Tex. App.—San Antonio 1991, no writ). A mere

statement in the order that good cause was shown is insufficient

to sustain the sanctions order. GTE, 819 S.W.3d at 654.

In Barnum, the Plaintiff, who was convicted and sentenced

for attempted murder, sued his appellate counsel for legal

malpractice. Barnum, 998 S.W.2d at 286. Former counsel filed a

motion for judgment on the pleadings and for sanctions, which

were granted by the trial court. Id. The trial court subsequently

entered judgment dismissing Barnum’s claims for malpractice as

frivolous and/or malicious and assessed a $1000 sanction against

Barnum for reasonable attorney’s fees and litigation expenses

11 pursuant to Rule 13 of the Rules of Civil Procedure and section

14.006 of the Civil Practices and Remedies Code. Id. Thus, the trial

court’s bill of costs assessed $1,000 in sanctions and costs of $286

against Barnum. Id.

In regards to the attorney’s fees and costs assessed, the

judgment stated:

It is further ordered that Defendants are hereby awarded the sum of $1,000 as sanctions against Plaintiff for reasonable attorney’s fees and expenses of litigation pursuant to the provisions of Rule 13 of the Texas Rules of Civil Procedure and § 14.006 of the Texas Civil Practice and Remedies Code.

Id. at 287. Because the judgment failed to set forth the particulars

of the “good cause” for imposing sanctions against Barnum as

required by Rule 13, the court of appeals held that the trial court

had abused its discretion in imposing the attorney’s fees as

sanctions. Id. The court of appeals reversed and rendered the

award of $1000 in sanctions. Id.

Here, the portion of the order granting summary judgment

and assessing attorney fees states in its entirety:

IT IS FURTHER ORDERED that Defendant recovers

12 judgment against Plaintiff in the amount of $10,150 Dollars, as attorney fees for the benefit of Defendant Maeli Hector.

[C.R. 505] (emphasis in original). The judgment ordering fees fails

to meet the mandatory requirements under Rule 13. Barnum, 998

S.W.2d at 287; Gorman, 966 S.W.2d at 867; GTE Communications,

819 S.W.2d at 654. Moreover, the judgment here contains even

less information than the judgment in Barnum, in that it neglects

to even reference the rule or statutory authority by which the

attorney’s fees were assessed. C.F. Barnum, 998 S.W.2d at 287.

Since the judgment here fails to comply with the mandatory

requirements set forth in Rule 13, the trial court abused its

discretion in assessing attorney’s fees. Id.; see also Toles v. Toles, 45

S.W.3d 252, 267 (Tex. App.–Dallas 2001, pet. denied) (reversing

assessment of attorney’s fees as sanctions and rendering take-

nothing judgment). Because the trial court abused its discretion in

assessing attorney’s fees as sanctions under Rule 13, this Court

should reverse the assessment of attorney’s fees and render a

take-nothing judgment against Hector. Toles v. Toles, 45 S.W.3d

252, 267; Barnum, 998 S.W.2d at 287.

13 2. Fees under Chapt 10 Civ. Prac. & Rem. Code

Hector cited to various provisions of Chapter 10 of the Civil

Practices and Remedies Code in her request for attorney fees.

Imposition of sanctions under Chapter 10 also is reviewed for

abuse of discretion. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007).

“To determine if the sanctions were appropriate or just, the

appellate court must ensure there is a direct nexus between the

improper conduct and the sanction imposed.” Id. (citing Spohn

Hosp. v. Mayer, 104 S.W.3d 878, 882 (Tex. 2003), and TransAmerican

Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex.1991)). The

nexus requirement ensures that the sanction is “directed against

the abuse and toward remedying the prejudice caused [to] the

innocent party.” TransAmerican, 811 S.W.2d at 917. Additionally,

the sanction must not be excessive. Id.

Notably, under Chapter 10, a trial judge must specifically

detail the sanctionable conduct in its order and explain the basis

for the sanction imposed. TEX. CIV. PRAC. & REM. CODE ANN. §

10.005 (West 2008); Rivera v. Countrywide Home Loans, Inc., 262

14 S.W.3d 834, 842 (Tex. App.–Dallas 2008, no pet.). Failure to set

forth the conduct that forms the basis for the sanction is an abuse

of discretion. Id.; Loeffler v. Lytle Indep. School Dist., 211 S.W.3d 331,

349 (Tex. App.–San Antonio 2006, no pet.). As set forth above, the

order assessing attorneys’ fees against Ogle does not mention any

sanctionable conduct on the part Ogle, much less describe any

“direct nexus” between that conduct and the sanctions imposed.

Low, 221 S.W.3d at 614; Spohn Hosp., 104 S.W.3d at 882. In failing

to follow the law and guiding principles applicable to attorney

fees sanctions under Chapter 10, the trial court abused its

discretion in assessing those fees. TEX. CIV. PRAC. & REM. CODE

ANN. § 10.005; Low, 221 S.W.3d at 614; Spohn Hosp., 104 S.W.3d at

882; Rivera, 262 S.W.3d at 842; Loeffler, 211 S.W.3d at 349. Because

the trial court abused its discretion in assessing attorney’s fees as

sanctions under Chapter 10, this Court should reverse the

assessment of attorney’s fees and render a take-nothing judgment

against Hector. Toles v. Toles, 45 S.W.3d 252, 267; Barnum, 998

S.W.2d at 287.

15 3. Fees Under the Court’s Inherent Powers

Because this Court must consider “whether the court acted

without reference to any guiding rules and principles,” Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985), it must

also consider whether the trial court could have appropriately

imposed sanctions on its own initiative without a motion. A court

may impose sanctions on its own initiative under civil practice

and remedies code chapter 10, Texas Rules of Civil Procedure 13

and 191.3, and its own inherent power, but it first must provide

notice and a show-cause hearing to the person to be sanctioned.

TEX. CIV. PRAC. & REM. CODE ANN. §§ 10.002(b), .003 (West 2008);

Tex.R. Civ. P. 13; see also In re Bennett, 960 S.W.2d 35, 40 (Tex.

1997); Greene v. Young, 174 S.W.3d 291, 298 (Tex. App.–Houston

[1st Dist.] 2005, pet. denied) (“The traditional due process

protections of notice and hearing are also required before a trial

court can impose sanctions on a party pursuant to its inherent

power to sanction.”). Furthermore, “[a] court cannot invoke its

inherent power to sanction without some evidence and factual

16 findings that the conduct complained of significantly interfered

with the court’s legitimate exercise of one of its traditional core

functions.” Kennedy v. Kennedy, 125 S.W.3d 14, 19 (Tex. App.–

Austin 2002, pet. denied).

In this case, it is undisputed that the trial court never

noticed or held a court-initiated evidentiary hearing on sanctions.

The attorneys’ fees order is entitled “Order Granting Summary

Judgment as to Promissory Estoppel,” and it notes that

the Court considered Defendant’s Motion for Summary Judgment as to Promissory Estoppel, Plaintiff’s Response, the evidence and argument presented by the parties, and finds that Defendant’s Motion is GRANTED, and makes the following findings:

*** IT IS FURTHER ORDERED that Defendant recover judgment against Plaintiff in the amount of $10,150 Dollars, as attorney fees for the benefit of Maeli Hector.

Nevertheless, to the extent that the trial court imposed sanctions

on its own initiative without (1) notice issued before the hearing,

(2) an evidentiary hearing, or (3) factual findings, it abused its

discretion. See Unifund CCR, 299 S.W.3d at 98 (holding trial court

abused its discretion by assessing sanctions based on inadmissible

17 document); Polansky, 393 S.W.3d at 370 (holding court abused its

discretion if it assessed attorney fees sanctions under inherent

powers without notice, hearing, and factual findings); Kennedy,

125 S.W.3d at 19 (holding court erred by striking pleadings

without evidence that complained-of conduct significantly

interfered with court’s legitimate exercise of traditional core

function). Because the trial court abused its discretion in assessing

attorney’s fees as sanctions under Rule 13, this Court should

reverse the assessment of attorney’s fees and render a take-

nothing judgment against Hector. Toles, 45 S.W.3d 252, 267;

Barnum, 998 S.W.2d at 287.

POINT OF ERROR TWO (RESTATED)

II. The amount of the attorneys’ fees awarded to Appellee were unreasonable.

A. Standard of Review

An appellate court will review the amount of attorney’s fees

awarded under a legal-sufficiency standard. Aaron Rents, Inc. v.

Travis Cent. Appraisal Dist., 212 S.W.3d 665, 671 (Tex.

App.—Austin 2006, no pet.). In conducting a legal-sufficiency

18 review, the court will consider the evidence in the light most

favorable to the finding under review and indulge every

reasonable inference that would support it. City of Keller v. Wilson,

168 S.W.3d 802, 822 (Tex. 2005). If more than a scintilla of

evidence supports the challenged finding, the legal-sufficiency

challenge fails. Wal–Mart Stores, Inc. v. Canchola, 121 S.W.3d 735,

739 (Tex. 2003); see also Lundy v. Masson, 260 S.W.3d 482, 491 (Tex.

App.—Houston [14th Dist.] 2008, pet. denied) (when party

challenges sufficiency of evidence supporting adverse finding on

issue on which she did not have burden of proof, party must

demonstrate no evidence supports adverse finding).

B. Controlling Law

Reasonableness of attorney’s fees is a fact question and

must be supported by competent evidence. Stukes v. Bachmeyer,

249 S.W.3d 461, 469 (Tex. App.–Eastland 2007, no pet.). “Texas

law is clear that ‘[t]he issue of reasonableness and necessity of

attorney’s fees requires expert testimony.’ “Woodhaven Partners,

Ltd. v. Shamoun & Norman, LLP., 422 S.W.3d 821, 830–31 (Tex.

19 App.–Dallas 2014, no pet.) (quoting Twin City Fire Ins. Co. v.

Vega–Garcia, 223 S.W.3d 762, 770–71 (Tex. App.–Dallas 2007, pet.

denied)). A judgment awarding attorneys’ fees may be supported

solely by the attorney’s testimony. Vazquez v. Vazquez, 292 S.W.3d

80, 86 (Tex. App.–Houston [14th Dist.] 2007, no pet.).

In determining the reasonableness of attorney’s fees, the

following factors may be considered: (1) the time and labor

required, the novelty and difficulty of the questions involved, and

the skill required to perform the legal service properly; (2) the

likelihood that the acceptance of the particular employment will

preclude other employment by the lawyer; (3) the fee customarily

charged in the locality for similar legal services; (4) the amount

involved and the results obtained; (5) the time limitations

imposed by the client or by the circumstances; (6) the nature and

length of the professional relationship with the client; (7) the

experience, reputation, and ability of the lawyer or lawyers

performing the services; and (8) whether the fee is fixed or

contingent on results obtained or the uncertainty of collection

20 before the legal services have been rendered. Arthur Andersen &

Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997). A

factfinder is not required to consider all of these factors in every

case; they simply constitute guidelines to be considered, not

elements of proof. Petco Animal Supplies, Inc. v. Schuster, 144

S.W.3d 554, 567 (Tex. App.—Austin 2004, no pet.); Acad. Corp. v.

Interior Buildout & Turnkey Constr., Inc., 21 S.W.3d 732, 742 (Tex.

App.—Houston [14th Dist.] 2000, no pet.). Thus, it is not

necessary that the record include evidence on each of the factors.

See Burnside Air Conditioning & Heating, Inc. v. T.S. Young Corp.,

113 S.W.3d 889, 897–98 (Tex. App.—Dallas 2003, no pet.); Acad.

Corp., 21 S.W.3d at 742.

In addition to the above enumerated factors, judges may

consider the entire record and draw upon their common

knowledge and experience as lawyers and judges. See In re

M.A.N.M., 231 S.W.3d 562, 567 (Tex. App.—Dallas 2007, no pet.);

C.M. Asfahl Agency v. Tensor, Inc., 135 S.W.3d 768, 802 (Tex.

App.—Houston [1st Dist.] 2004, no pet.).

21 C. Application

Here, the affidavit of Hector’s attorney in support of her

request for attorneys’ fees sets forth in pertinent part that counsel

based on his personal knowledge, he is the attorney for Hector; he

has ten years experience as an attorney in Texas; customary rates

for attorneys with such experience is $350 per hour; he had spent

29 hours defending the lawsuit up to the motion for summary

judgment; and, that $10,150 is a reasonable and customary

attorney fee for the work he had completed. [C.R. 66].

Initially, counsel’s affidavit addressed only the first and

seventh factors set forth in Arthur Anderson regarding the

determination of the reasonableness of attorneys’ fees. Arthur

Andersen, 945 S.W.2d at 818. Further, a trial court may grant

summary judgment based on uncontroverted testimonial

evidence “if the evidence is clear, positive and direct, otherwise

credible and free from contradictions and inconsistencies, and

could have been readily controverted.” See TEX. R. CIV. P. 166a(c).

A conclusory statement is one that does not provide the

22 underlying facts to support the conclusion. Rizkallah v. Conner, 952

S.W.2d 580, 587 (Tex. App.–Houston [1st Dist.] 1997, no pet.).

Conclusory statements in affidavits are not competent evidence

to support a summary judgment because they are not credible or

susceptible to being readily controverted. See Ryland Group, Inc.

v. Hood, 924 S.W.2d 120, 122 (Tex. 1996).

Counsel’s affidavit sets forth his work experience and

training, but fails to set forth the factual support for his

conclusory statement regarding either the hourly rate he claims

is customary; or the duties performed in the 29 hours spent

defending the lawsuit or the necessity of those duties. Eberstein v.

Hunter, 260 S.W.3d 626, 630 (Tex. App.–Dallas 2008, no pet.). In

Eberstein, the trial court awarded attorneys’ fees to Appellee,

whose attorney filed his affidavit in support of her request for

attorney’s fees. The affidavit detailed counsel’s work experience

and training and indicates he was engaged to represent Appellee

to bring this action for unpaid contractual alimony. Id. The

affidavit further stated that the Appellee was entitled to recover

23 reasonable attorney’s fees incurred for bringing this proceeding

pursuant to a provision in the agreement incident to divorce.

Counsel then opined “a reasonable fee for representation of

[Appellee] in the present proceeding is the sum of Fifty Thousand

Dollars ($50,000), through the entry of final judgment pursuant to

the [motion for summary judgment].” Id.

The court of appeals recognized that “[t]he affidavit,

however, provides absolutely no factual basis for [counsel’s

opinion. We therefore conclude the affidavit was not competent

evidence to support summary judgment on [Appellee’s] claim for

attorney’s fees.” Id. As the court found in Eberstein, so should this

Court find here. Id. This Court should reverse the attorneys’ fees

awarded and render a take-nothing verdict against Hector.

POINT OF ERROR THREE (RESTATED)

III. The trial court erred when it granted Appellee’s Motion for Summary Judgment as to Promissory Estoppel.

A. Standard of Review

Under the traditional standard, a summary-judgment

motion is properly granted when the movant establishes that

24 there are no genuine issues of material fact to be decided and that

he is entitled to judgment as a matter of law. TEX. R. CIV. P.

166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991);

Holmstrom v. Lee, 26 S.W.3d 526, 530 (Tex. App.–Austin 2000, no

pet.). In reviewing a summary judgment, an appellate court must

accept as true all evidence favoring the nonmovant, indulging

every reasonable inference and resolving all doubts in the

nonmovant’s favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546,

548–49 (Tex. 1985). A defendant moving for summary judgment

must negate as a matter of law at least one element of each of the

plaintiff’s theories of recovery or plead and prove as a matter of

law each element of an affirmative defense. See Centeq Realty, Inc.

v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). If the defendant meets

this burden, the burden shifts to the plaintiff to present evidence

raising a fact issue. See id.

This Court must review de novo the entire record in the light

most favorable to the nonmovant, indulging every reasonable

inference and resolving any doubts against the motion. Sudan v.

25 Sudan, 199 S.W.3d 291, 292 (Tex. 2006); KPMG Peat Marwick v.

Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).

All theories in support of or in opposition to a motion for

summary judgment must be presented in writing to the trial

court. See TEX. R. CIV. P. 166a(c).

B. Discussion

In his response to Hector’s Motion for Summary Judgment

as to Promissory Estoppel, Ogle provided an affidavit in support.

[C.R. 501]. In that affidavit, Ogle swore that he had personal

knowledge of the following:

1) [Hector] agreed to take a lie detector test in exchange for the dismissal of a lawsuit against her and a payment to her of $2500; 2) [Ogle] relied upon that promise; and 3) relying on that promise was detrimental to [Ogle].

[C.R. 501].

“The requisites of promissory estoppel are: (1) a promise, 2)

foreseeability of reliance thereon by the promisor, and (3)

substantial reliance by the promisee to his detriment.” English v.

Fischer, 660 S.W.2d 521, 524 (Tex. 1983); Ebner v. First State Bank of

26 Smithville, 27 S.W.3d 287, 302 (Tex. App.–Austin 2000, pet.

denied).

Here, competent summary judgment evidence provided by

Ogle–which must be viewed in the light most favorable to the

nonmovant–presented a genuine issue of material fact as to each

and every element of his promissory estoppel claim. English, 660

S.W.2d at 524; Ebner, 27 S.W.3d at 302.

PRAYER

PREMISES CONSIDERED, Appellant Scott Ogle

respectfully requests that this Court sustain the points of error in

this brief and that this Court alternatively, reverse the trial court’s

Summary Judgment on Promissory Estoppel in this case and

remand to the trial court for trial; reverse the attorneys’ fees

awarded to Appellee and render a take-nothing judgment against

her; or, find the amount of the attorneys’ fees assessed to be

unreasonable and reverse the attorneys’ fees awarded to Appellee

and render a take-nothing judgment against her. Appellant

further prays that he be granted any such further relief to which

27 he may show himself justly entitled.

Respectfully submitted,

/s/ Scott Ogle Scott Ogle TBN: 00797170 Law Office of Scott P. Ogle 2028 Ben White Blvd. Austin, TX 78704 Phone: (512) 442-8833 Fax: (512) 442-3256 soglelaw@peoplepc.com Attorney for Appellant Appellant Pro Se

CERTIFICATE OF COMPLIANCE

Pursuant to Rule 9.4 of the Texas Rules of Appellate Procedure, I certify that this document was computer-generated using Corel WordPerfect and is printed in a standard font using 14-point type. I certify that the word count for the portion of this filing included by Rule 9.4(i)(1) of the Texas Rules of Appellate Procedure is 5,026. /s/ Scott Ogle Scott Ogle

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument has been furnished to counsel for the Appellees listed below pursuant to Rule 9.5(b)(1) of the Texas Rules of Appellate Procedure through the electronic filing manager, as opposing counsel’s email address is on file with the electronic filing manager, on this 29th day of December , 2015.

28 /s/ Scott Ogle Scott Ogle

Paul A. Batrice Law Office of Paul Batrice 1114 Lost Creek Blvd., Ste. 440 Austin, Texas 78746

30 APPENDIX TABLE OF CONTENTS

TAB DESCRIPTION A Order Granting Summary Judgment – 06/05/2015 [C.R. 469] B Order Granting Summary Judgment as to Promissory Estoppel – 07/08/2015 [C.R. 505] C Defendant’s Original Answer – 01/30/2015 [C.R. 46] D Defendant’s Motion for Summary Judgment as to Promissory Estoppel – 06/04/2015 [C.R. 434] E Plaintiff’s Response to Defendant’s Motion for Summary Judgment as to Promissory Estoppel – 06/24/2015 [C.R. 497] F Text of Chapt. 10 of the Texas Civil Practices & Remedies Code G Text of Rule 13 of the Texas Rules of Civil Procedure H Text of Rule 83 of the Texas Rules of Civil Procedure I Text of Rule 301 of the Texas Rules of Civil Procedure EXHIBIT A EXHIBIT B EXHIBIT C EXHIBIT D EXHIBIT E EXHIBIT F CIVIL PRACTICE AND REMEDIES CODE

TITLE 2. TRIAL, JUDGMENT, AND APPEAL

SUBTITLE A. GENERAL PROVISIONS

CHAPTER 10. SANCTIONS FOR FRIVOLOUS PLEADINGS AND MOTIONS

Sec.A10.001.AASIGNING OF PLEADINGS AND MOTIONS. The signing

of a pleading or motion as required by the Texas Rules of Civil

Procedure constitutes a certificate by the signatory that to the

signatory ’s best knowledge, information, and belief, formed after

reasonable inquiry:

(1)AAthe pleading or motion is not being presented for

any improper purpose, including to harass or to cause unnecessary

delay or needless increase in the cost of litigation;

(2)AAeach claim, defense, or other legal contention in

the pleading or motion is warranted by existing law or by a

nonfrivolous argument for the extension, modification, or reversal

of existing law or the establishment of new law;

(3)AAeach allegation or other factual contention in the

pleading or motion has evidentiary support or, for a specifically

identified allegation or factual contention, is likely to have

evidentiary support after a reasonable opportunity for further

investigation or discovery; and

(4)AAeach denial in the pleading or motion of a factual

contention is warranted on the evidence or, for a specifically

identified denial, is reasonably based on a lack of information or

belief.

Added by Acts 1995, 74th Leg., ch. 137, Sec. 1, eff. Sept. 1, 1995.

Sec.A10.002.AAMOTION FOR SANCTIONS. (a) A party may make a

motion for sanctions, describing the specific conduct violating

Section 10.001.

(b)AAThe court on its own initiative may enter an order

describing the specific conduct that appears to violate Section

10.001 and direct the alleged violator to show cause why the conduct

has not violated that section.

(c)AAThe court may award to a party prevailing on a motion

under this section the reasonable expenses and attorney ’s fees

1 incurred in presenting or opposing the motion, and if no due

diligence is shown the court may award to the prevailing party all

costs for inconvenience, harassment, and out-of-pocket expenses

incurred or caused by the subject litigation.

Added by Acts 1995, 74th Leg., ch. 137, Sec. 1, eff. Sept. 1, 1995.

Sec.A10.003.AANOTICE AND OPPORTUNITY TO RESPOND. The court

shall provide a party who is the subject of a motion for sanctions

under Section 10.002 notice of the allegations and a reasonable

opportunity to respond to the allegations.

Added by Acts 1995, 74th Leg., ch. 137, Sec. 1, eff. Sept. 1, 1995.

Sec.A10.004.AAVIOLATION; SANCTION. (a) A court that

determines that a person has signed a pleading or motion in

violation of Section 10.001 may impose a sanction on the person, a

party represented by the person, or both.

(b)AAThe sanction must be limited to what is sufficient to

deter repetition of the conduct or comparable conduct by others

similarly situated.

(c)AAA sanction may include any of the following:

(1)AAa directive to the violator to perform, or refrain

from performing, an act;

(2)AAan order to pay a penalty into court; and

(3)AAan order to pay to the other party the amount of

the reasonable expenses incurred by the other party because of the

filing of the pleading or motion, including reasonable attorney ’s

fees.

(d)AAThe court may not award monetary sanctions against a

represented party for a violation of Section 10.001(2).

(e)AAThe court may not award monetary sanctions on its own

initiative unless the court issues its order to show cause before a

voluntary dismissal or settlement of the claims made by or against

the party or the party ’s attorney who is to be sanctioned.

(f)AAThe filing of a general denial under Rule 92, Texas

Rules of Civil Procedure, shall not be deemed a violation of this

chapter.

Added by Acts 1995, 74th Leg., ch. 137, Sec. 1, eff. Sept. 1, 1995.

2 Sec.A10.005.AAORDER. A court shall describe in an order

imposing a sanction under this chapter the conduct the court has

determined violated Section 10.001 and explain the basis for the

sanction imposed.

Added by Acts 1995, 74th Leg., ch. 137, Sec. 1, eff. Sept. 1, 1995.

Sec.A10.006.AACONFLICT. Notwithstanding Section 22.004,

Government Code, the supreme court may not amend or adopt rules in

conflict with this chapter.

Added by Acts 1995, 74th Leg., ch. 137, Sec. 1, eff. Sept. 1, 1995.

3 EXHIBIT G EXHIBIT H EXHIBIT I