      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                         NO. 03-08-00657-CV



                                    Clifford Zeifman, Appellant

                                                    v.

                                     Laurie J. Nowlin, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
     NO. D-1-GN-08-000877, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING



                                             OPINION


                This is a suit brought by a parent against an amicus attorney appointed by the

trial court to assist the court in protecting the best interests of a child in a suit affecting the parent-

child relationship. This suit is an unfortunate off-shoot of one of the most contentious divorce

and child custody proceedings to come before this Court—repeatedly—in recent years. Appellant

Clifford Zeifman sued appellee Laurie J. Nowlin alleging fraud and “gross negligence” on the

part of Nowlin acting as the amicus attorney in proceedings regarding the implementation of

certain provisions of the divorce decree between Zeifman and his former wife Sheryl Michels. The

district court granted a summary judgment in Nowlin’s favor on the basis that she is statutorily

immune from the claims brought by Zeifman and owes him no duty of care with respect to her work.

The district court also awarded Nowlin sanctions against Zeifman in the form of attorneys’ fees on

the basis that his claims are frivolous. We affirm the judgment of the district court.
Background

               Zeifman and Michels were divorced in 1998. They had two children—a son

with special educational needs and a daughter. Since the divorce, disputes over the education and

care of the children have generated substantial and acrimonious litigation.1 In 2005, Michels filed

a petition to modify parent-child relationship, raising issues as to who would act as their

son’s guardian and what school he would attend. The trial court appointed Nowlin to act as an

amicus attorney for Zeifman’s son in these proceedings. The parties ultimately reached an agreed

settlement in February 2007 of the dispute over the motion to modify.

               Zeifman filed this action against Nowlin in March 2008, alleging causes of action

for fraud and “gross negligence” and complaining of Nowlin’s performance of her duties as

amicus attorney for his son. Nowlin filed a general denial and raised the affirmative defense

of immunity. See Tex. Fam. Code Ann. § 107.009 (West 2008) (providing court-appointed

amicus attorneys immunity from liability for actions taken, recommendations made, or opinions

given in that capacity). Nowlin filed a motion for summary judgment on Zeifman’s claims of

fraud and “gross negligence.” Nowlin also filed a motion for sanctions. The trial court granted the

motion for summary judgment and the motion for sanctions. The trial court ordered Zeifman to pay

Nowlin $39,999 as sanctions for filing a frivolous lawsuit. In this appeal Zeifman challenges both

the summary judgment and the order granting sanctions. We affirm.


       1
          See Michels v. Zeifman, No. 03-08-00287-CV, 2009 Tex. App. LEXIS 1017
(Tex. App.—Austin Feb. 12, 2009, pet. denied) (mem. op.); Zeifman v. Michels, 229 S.W.3d 460
(Tex. App.—Austin 2007, no pet.); In re Zeifman, No. 03-06-00601-CV, 2006 Tex. App. LEXIS
11340 (Tex. App.—Austin Nov. 22, 2006, orig. proceeding); Zeifman v. Michels, 212 S.W.3d 582
(Tex. App.—Austin 2006, pet. denied).

                                                2
Standard of review

               We review the trial court’s summary judgment rulings de novo. Valence Operating

Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott,

128 S.W.3d 211, 215 (Tex. 2003). When, as here, the district court’s order does not specify the

grounds for its summary judgment, we must affirm the order granting summary judgment if any of

the grounds presented to the district court and preserved for appellate review are meritorious. See

Provident Life & Accident Ins. Co., 128 S.W.3d at 216.

               A defendant moving for a traditional summary judgment must conclusively negate

at least one essential element of each of the plaintiff’s causes of action or conclusively establish

each element of an affirmative defense. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910,

911 (Tex. 1997). Once the defendant has done so, the burden shifts to the plaintiff to produce

evidence creating a fact issue on the element or defense. See Walker v. Harris, 924 S.W.2d 375,

377 (Tex. 1996). A genuine issue of material fact exists if the nonmovant produces more than

a scintilla of evidence establishing the existence of the challenged element. Ford Motor Co.

v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). More than a scintilla of supporting evidence exists

if the evidence would allow reasonable and fair-minded people to differ in their conclusions. King

Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). “Less than a scintilla of evidence

exists when the evidence is ‘so weak as to do no more than create a mere surmise or suspicion’ of

a fact.” Id. (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).




                                                 3
Summary judgment on the fraud claim

                In his first issue, Zeifman complains that the district court erred by granting

summary judgment in Nowlin’s favor on his fraud claim. Nowlin sought summary judgment on

the basis that she is immune from this type of fraud claim pursuant to section 107.009 of the

family code. Section 107.009 provides:


        A guardian ad litem, an attorney ad litem, or an amicus attorney appointed under
        this chapter is not liable for civil damages arising from an action taken, a
        recommendation made, or an opinion given in the capacity of guardian ad litem,
        attorney ad litem, or amicus attorney.


Tex. Fam. Code Ann. § 107.009(a). There are certain exceptions to this immunity. The statutory

immunity does not apply to an action taken, recommendation made, or opinion given (1) with

conscious indifference or reckless disregard to the safety of another; (2) in bad faith or with malice;

or (3) that is grossly negligent or willfully wrongful. Id. § 107.009(b). There is no exception to this

statutory immunity for a claim that the amicus attorney committed fraud with respect to one of the

parents of a child the attorney is assisting.

                The summary judgment evidence conclusively proves that Nowlin was appointed

to serve as an amicus attorney in the underlying suit pursuant to family code section 107.021. See

id. § 107.021 (West 2008). All of the allegations supporting Zeifman’s causes of action pertain

to Nowlin’s performance of her duties as amicus attorney and actions taken in that capacity.

Nowlin sought summary judgment on the basis that she conclusively proved the application of

section 107.009. Nowlin demonstrated that Zeifman’s claims for damages in this lawsuit derive

from and challenge the service she provided as amicus attorney—a fact that is not disputed—and,

                                                  4
therefore, conclusively established that she was entitled to immunity for any claim not covered by an

exception. The immunity statute recognizes no exception for allegations of fraud as to the parents.

The trial court properly granted summary judgment on Zeifman’s fraud claim.2

               Moreover, even if Zeifman’s fraud claim could be construed to allege a

cause of action for conduct that could fit within an exception to immunity, summary judgment

is still proper. Once Nowlin conclusively established as an affirmative defense that she was entitled

to the statutory immunity afforded an amicus attorney, the burden of production shifted to Zeifman

to present evidence sufficient to create a fact issue on at least one element of either the

affirmative defense or an exception to the affirmative defense. See Palmer v. Enserch Corp.,

728 S.W.2d 431, 435 (Tex. App.—Austin 1987, writ ref’d n.r.e.) (citing “Moore” Burger, Inc.

v. Phillips Petroleum Co., 492 S.W.2d 934 (Tex. 1972)). Zeifman did not produce or file any

summary judgment evidence at all in response to Nowlin’s motion, relying instead solely on

the allegations contained in his petition. It is well-settled that, with exceptions that do not apply

here, pleadings are not competent summary judgment evidence. Laidlaw Waste Sys. v. City of

Wilmer, 904 S.W.2d 656, 660 (Tex. 1995); Hidalgo v. Surety Sav. & Loan Ass’n, 462 S.W.2d

540, 543-44 (Tex. 1971). Zeifman cannot rely on his pleadings to claim that he met his burden

of producing evidence to create a fact issue on the application of section 107.009. We overrule

Zeifman’s first issue.




       2
         The basis of Zeifman’s fraud claim is an allegation of misrepresentation of fact. Zeifman
does not make any independent allegations of bad faith or malice to the court, his son, or
anyone else.

                                                 5
Summary judgment on the “gross negligence” claim

                In his second issue, Zeifman contends that the trial court erred by granting judgment

in Nowlin’s favor on his “gross negligence” claim. Nowlin sought summary judgment on the basis

that an amicus attorney appointed to assist the court in a suit affecting the parent-child relationship

owes no duty of care to either of the child’s parents. Thus, Nowlin argued, Zeifman’s negligence

claim fails as a matter of law for lack of an essential element.

                The family code defines an “amicus attorney” as “an attorney appointed by the court

in a suit, other than a suit filed by a governmental entity, whose role is to provide legal services

necessary to assist the court in protecting a child’s best interests rather than to provide legal services

to the child.” Tex. Fam. Code Ann. § 107.001(1) (West 2008).3 The amicus attorney is appointed

to assist the court, not to represent the child or either of the parents. See O’Connor v. O’Connor,

245 S.W.3d 511, 515 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Therefore, it is the trial court,

not the parties, to whom the amicus attorney is responsible for the limited purposes delineated in the

statute. Id. The amicus attorney owes a duty of competent representation to the trial court, not to

the parents. We hold that an amicus attorney appointed by the court in a suit affecting the parent-

child relationship has no duty of care to either parent.4 The trial court properly granted Nowlin’s




        3
         The role of an amicus attorney is different from that of an “attorney ad litem,” who
“provides legal services to a person, including a child, and who owes to the person the duties
of undivided loyalty, confidentiality, and competent representation.” Tex. Fam. Code Ann.
§ 107.001(2) (West 2008).
        4
            Because the issue is not before us, we express no opinion as to what duties the
amicus attorney may have to the child whose best interests he is charged with assisting the court
to protect.

                                                    6
motion for summary judgment on Zeifman’s “gross negligence” claim. We overrule Zeifman’s

second issue.


Imposition of sanctions

                In three issues, Zeifman challenges the district court’s sanctions order. We review

a trial court’s ruling on a motion for sanctions applying an abuse of discretion standard. Low

v. Henry, 221 S.W.3d 609, 614 (Tex. 2007). The trial court abuses its discretion when it acts without

reference to any guiding rules or principles such that its ruling is arbitrary or unreasonable. See

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). In this case, the

district court imposed sanctions pursuant to rule 13 of the rules of civil procedure, chapter 10 of

the civil practice and remedies code, and its inherent power. See Tex. R. Civ. P. 13; Tex. Civ. Prac.

& Rem. Code Ann. §§ 10.001-.006 (West 2002). If the district court’s imposition of sanctions is

supported under one of these legal bases, we will affirm the order.

                Rule 13 provides:


       The signatures of attorneys or parties constitute a certificate by them that they
       have read the pleading, motion, or other paper; that to the best of their knowledge,
       information, and belief formed after reasonable inquiry the instrument is not
       groundless and brought in bad faith or groundless and brought for the purpose of
       harassment . . . . If a pleading, motion or other paper is signed in violation of this
       rule, the court, upon motion or upon its own initiative, after notice and hearing, shall
       impose an appropriate sanction available under Rule 215 . . . upon the party who
       signed it, a represented party, or both.


Tex. R. Civ. P. 13. Rule 13 defines “groundless” as having “no basis in law or fact and not

warranted by good faith argument for the extension, modification, or reversal of existing law.” Id.



                                                  7
Generally, courts presume that pleadings and other papers are filed in good faith. Low, 221 S.W.3d

at 614. The party seeking sanctions bears the burden of overcoming this presumption. Id.

                Zeifman contends that the trial court abused its discretion in imposing sanctions under

rule 13 because (1) the court’s order does not “state the particulars showing that Zeifman’s Petition

had no basis in law and fact,” and (2) the evidence adduced at the hearing failed to establish that his

suit was groundless and brought in bad faith or to harass. This is not the case. The trial court’s order

recited several bases for the sanctions award, including, but not limited to, the following:


        •       Nowlin did have extensive records of her activities and performed numerous
                objective functions in the underlying SAPCR, and therefore, the allegations
                in paragraph 2 of Zeifman’s petition have no basis in fact and are lacking
                evidentiary support;

        •       Nowlin conducted multiple interviews with the prospective custodians,
                interviewed numerous doctors, and interviewed personnel at the child’s
                school, and therefore, the allegations in paragraph 11 of Zeifman’s petition
                have no basis in fact and are lacking evidentiary support;

        •       Nowlin did not sit at the table with Zeifman’s ex-wife during court hearings
                and did not stay in the room with Zeifman’s ex-wife during mediation, and
                therefore, the allegations in paragraph 13 of Zeifman’s petition have no basis
                in fact and are lacking evidentiary support;

        •       Zeifman did not make a reasonable inquiry into the legal and factual basis of
                the claims he presented in his pleadings in this matter; and

        •       Zeifman was aware that the petition in this case contained allegations and
                other factual contentions that lacked evidentiary support and were not likely
                to have evidentiary support after a reasonable opportunity for further
                investigation or discovery.




                                                   8
These findings and others contained in the order adequately “set forth the particulars” regarding how

Zeifman’s petition violated rule 13 by making allegations that had no basis in fact. These findings

justify the imposition of sanctions under rule 13.

                With respect to the evidentiary support for the trial court’s findings, a review of

the evidence presented to the trial court during the two-day evidentiary hearing reveals that it was

more than sufficient to establish not only that the allegations Zeifman made were false, but that he

knew them to be false when he filed his petition. Nowlin’s motion for sanctions maintains that

Zeifman’s petition contains numerous allegations that Zeifman knew at the time of filing were false.

For example, in his petition, Zeifman alleged that:


        After a brief meeting with counsel for the ex-wife, Defendant moved into her job
        with a complete lack of fervor. She had an idea in mind and had no plans to perform
        her court-appointed functions. Defendant did not interview prospective custodians,
        did not visit any of the places that were being considered for the child to live,
        apparently did not interview any doctors or teachers, or take any action other than to
        ask the ex-wife’s counsel what she wanted to do.


This allegation is demonstrably false. The record evidence shows that Nowlin, an experienced

family law practitioner, rather than acting “with a complete lack of fervor,” diligently performed

her duties as an amicus attorney. The prospective custodians for the child at issue were an aunt and

uncle. Nowlin, in fact, interviewed the prospective custodians on more than one occasion, met with

them in person, and even participated in activities with them and the child. Despite his pleadings

in the trial court, Zeifman admits the actual facts in his briefing in this Court. Immediately after her

appointment Nowlin met with at least two doctors that she enlisted to evaluate the child and prepare

reports of their findings, and she interviewed the child’s own psychologist and the family therapist

                                                   9
in Austin. She also actively monitored the child’s progress at school through numerous interviews

with the school psychologist. She also spoke directly to his teachers. Throughout her service as an

amicus attorney, Nowlin kept both Zeifman’s and Michels’s counsel informed of her activities

and views as to their son’s situation. The identities of the doctors and teachers with whom Nowlin

consulted were disclosed in witness lists, and several of them were deposed by counsel for Zeifman.

Zeifman had actual or constructive knowledge of all of the activities Nowlin undertook during her

tenure as amicus attorney in the underlying proceedings. He knew, therefore, that his allegation that

Nowlin “had no plans to perform her court-appointed functions” was false.

               Zeifman also alleged that:


       [Nowlin] began to de facto assume the role of co-counsel for the ex-wife. She
       insisted on sitting with the [ex-wife] at all hearings. When the parties went to
       mediation to try to resolve the issues, Defendant asked to be in the room with the ex-
       wife.


At the evidentiary hearing on her motion for sanctions, Nowlin unequivocally denied these

allegations, testifying that she sat at her own table near the court reporter during hearings and that

she had her own room at the mediation where she remained except when the mediator requested that

she accompany him to each of the separate rooms occupied by the parties. Neither Zeifman, who

did not even attend the hearing on the motion for sanctions, nor his counsel produced any evidence

contradicting or challenging Nowlin’s testimony in any way. Nevertheless, in briefing to this Court,

Zeifman, relying solely on the allegations he made in his petition without any supporting

evidence, argues that the issue is “hotly contested.” Zeifman argues, “in light of this evidence, the

district court must have reached its conclusions by making an assessment as to the relative credibility

                                                  10
of the witnesses and the evidence.” Again, Zeifman makes the erroneous assumption that allegations

made in his pleadings constitute evidence. Rather than remaining “hotly contested,” the allegations

were conclusively proven to be false at the evidentiary hearing in the trial court with no contradiction

by Zeifman.5

                The record plainly and thoroughly supports the trial court’s findings that Zeifman

knowingly made allegations in his petition that had no basis in fact and that his suit was groundless

and filed in bad faith. Under these circumstances, the trial court was well within its discretion to

impose sanctions under rule 13 of the rules of civil procedure. We overrule Zeifman’s third issue.

Because we affirm the award of sanctions on this ground, we need not address Zeifman’s fourth and

fifth issues challenging the imposition of sanctions pursuant to chapter 10 of the civil practice and

remedies code or the court’s inherent power.


Amount of sanctions

                In his seventh issue, Zeifman complains of the amount of sanctions imposed. We

review the propriety of the amount of sanctions imposed under an abuse of discretion standard. Id.

at 619. Nowlin’s motion for sanctions included an affidavit from her counsel stating that he had

billed her $38,354 in attorneys’ fees to date and had incurred an additional $18,610.12 in fees and

costs that he had not yet billed. This affidavit was admitted without objection. The court imposed

sanctions of $40,000, an amount approximately equal to the attorneys’ fees billed. Rule 13 allows




       5
         We note that Zeifman attended the mediation referenced in his pleadings and his attorney(s)
attended the hearing referenced in his pleadings. If evidence contradicting Nowlin exists, it was
available to Zeifman.

                                                  11
for sanctions in the amount of attorneys’ fees incurred in defending a groundless suit. See Tex. R.

Civ. P. 13, 215.2(b)(8). The district court made a specific finding that “the sanctions imposed herein

are the minimum sanction sufficient to deter” Zeifman’s conduct. We reject Zeifman’s arguments

that the district court assessed the monetary sanction without reference to guiding principles or

without considering less severe sanctions. We overrule Zeifman’s seventh issue.


Requested continuance

                Zeifman’s sixth issue complains of the district court’s denial of a motion to continue

the hearing on the motion for sanctions. The day before the hearing, Zeifman filed an unverified

motion for continuance. The trial court denied the motion. We review the district court’s ruling on

a motion for continuance under an abuse of discretion standard. Villegas v. Carter, 711 S.W.2d 624,

626 (Tex. 1986). Rule 251 of the rules of civil procedure governs continuances and provides that

no continuance may 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. The supreme court has instructed that

generally, when the movant fails to comply with the requirement that the motion for continuance be

“supported by affidavit,” we are to presume that the trial court did not abuse its discretion in denying

the motion. Villegas, 711 S.W.2d at 626. Applying that presumption here, we conclude that the

trial court did not abuse its discretion in denying Zeifman’s unverified motion for continuance.

                Zeifman attempts to avoid the consequences of filing an unverified motion for

continuance by arguing on appeal that he was “entitled to a continuance by operation of law” because

his motion stated that he was unavailable to attend the evidentiary hearing and the district court

could not convene the hearing without Zeifman’s presence. However, the trial court is not required

                                                  12
to grant a motion for continuance just because a party is not present. See Briscoe v. Goodmark

Corp., 130 S.W.3d 160, 169 (Tex. App.—El Paso 2003, no pet.). Moreover, in order to obtain a

continuance based on his unavailability, the party must file a motion explaining, among other things,

what the party’s testimony is expected to prove and that the continuance is not sought for the purpose

of delay, but so that justice may be done. See Tex. R. Civ. P. 252; Richards v. Schion, 969 S.W.2d

131, 133 (Tex. App.—Houston [1st Dist.] 1998, no pet.); Humphrey v. Ahlschlager, 778 S.W.2d

480, 483 (Tex. App.—Dallas 1989, no writ). The motion must be verified. Tex. R. Civ. P. 251.

Zeifman offered no evidence in support of his motion, no explanation of his expected testimony, and

no verification of his motion. The trial court did not abuse its discretion in denying the motion for

continuance. We overrule Zeifman’s sixth issue.


Conclusion

               Having overruled Zeifman’s seven issues, we affirm the district court’s judgment.




                                               _____________________________________________

                                               G. Alan Waldrop, Justice

Before Justices Patterson, Pemberton and Waldrop;
  Concurring Opinion by Justice Patterson

Affirmed

Filed: August 27, 2010




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