                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-11-00418-CV


JASMINE MONTGOMERY                                                    APPELLANT

                                         V.

WANDA MATTUCCI                                                          APPELLEE


                                      ----------

          FROM THE 431ST DISTRICT COURT OF DENTON COUNTY

                                      ----------

                         MEMORANDUM OPINION 1

                                      ----------

      Jasmine Montgomery appeals from a final summary judgment for Wanda

Mattucci. In six issues, Montgomery contends that the trial court imposed death

penalty sanctions against her, that those sanctions were excessive, that the trial

court did not first test lesser sanctions, that the trial court’s imposition of such

sanctions violated her due process rights, that she was not the offending party,

and that the trial court should have awarded her sanctions against Mattucci and
      1
       See Tex. R. App. P. 47.4.
Mattucci’s attorneys. We modify the trial court’s judgment in part and affirm it as

modified.

                            Procedural Background

        Montgomery sued Mattucci in December 2009 alleging personal injury

damages from a car wreck and asserting negligence, negligence per se, and

gross negligence claims.       Montgomery also filed an affidavit of indigency,

seeking to proceed without prepayment of costs, which the trial court denied.

Montgomery’s counsel, Sonya Chandler-Anderson, nevertheless set the matter

for a hearing. Mattucci’s counsel, Heidi Whitaker, filed a “special appearance,” in

which Mattucci––who had not yet been served with citation but to whom

Chandler-Anderson had been sending documents filed in the case––attempted to

challenge Montgomery’s indigency claim without making a general appearance

and, thus, waiving citation.     At the hearing, Chandler-Anderson referred to

Whitaker as “opposing counsel.”      The trial judge again denied Montgomery’s

attempt to proceed as an indigent.       Both Whitaker and Chandler-Anderson

signed the order denying indigency as to form. Montgomery appealed the ruling

to this court, and we dismissed the appeal because of the nonappealable,

interlocutory nature of the order. Montgomery v. Matucci, No. 02-10-00127-CV,

2010 WL 3075597, at *1 (Tex. App.––Fort Worth Aug. 5, 2010, no pet.) (mem.

op.).

        After this court issued its mandate in the indigency appeal, Chandler-

Anderson attempted to set yet another hearing in the trial court on the affidavit of


                                         2
indigency, but neither she nor Montgomery appeared. 2 Montgomery then filed in

the trial court another motion to reconsider the indigency ruling. The certificate of

service states that the document was sent to “Mattucci by and through her

attorney of record, . . . Whitaker.” Whitaker filed another “special appearance” on

Mattucci’s behalf, making the same challenge to the indigency claim but also

contending that Montgomery’s suit was frivolous under chapter 13 of the civil

practice and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. § 13.001

(West 2002). Whitaker also appeared at the hearing on Montgomery’s motion to

reconsider in an attempt to argue the special appearance. The trial court would

not allow Whitaker to argue against indigency without making a general

appearance; she said Mattucci had not authorized her to do so. The trial court

nevertheless accepted the filing as an amicus brief. At the conclusion of the

February 18, 2011 hearing, the trial court denied Montgomery’s motion to

reconsider.

      Although Chandler-Anderson knew that Whitaker was representing

Mattucci in the matter, after the February 2011 hearing, Chandler-Anderson

began sending documents filed in the case––including discovery and a change of




      2
       Substitute counsel for Mattucci appeared because Whitaker had a conflict.
He told the trial court that Whitaker’s firm had not received notice of the hearing
date and that Whitaker had discovered it fortuitously by checking the docket
settings.


                                         3
address notice––directly to Mattucci. 3 Despite the fact that she had not yet been

served with citation, Mattucci filed an answer in the suit on April 7, 2011. On

April 22, 2011, Mattucci served discovery requests, including requests for

admissions, on Montgomery; the certificate of service shows that they were

mailed to the proper address for Chandler-Anderson, but the fax confirmation

shows that they were sent to Chandler-Anderson’s prior fax number. 4 When

Whitaker contacted Chandler-Anderson by phone on May 2, 2011 to determine

why Chandler-Anderson was sending documents directly to Mattucci, 5 she

learned Chandler-Anderson’s new contact information.            Whitaker re-sent

      3
         Although she had served Whitaker in January 2011 with her motion to
reconsider, in a handwritten objection to the special appearance filed on the day
of the February 18, 2011 hearing, Chandler-Anderson did not serve Whitaker
with the objection and instead certified that “no other party has been served and
is entitled to notice.”
      4
        Chandler-Anderson contends that she hand delivered a change of
address, phone number, and fax number to Whitaker at the February 18, 2011
hearing, but Whitaker claims she never received it, noting that it was file-stamped
after the hearing that day. Whitaker did say that she received a copy of the
handwritten objection to special appearance filed that same day before the
hearing began.
      5
         Chandler-Anderson claimed in her response to Mattucci’s motion for
summary judgment that she had no notice that Whitaker was “officially”
Mattucci’s counsel until May 2, 2011. In later pleadings, Chandler-Anderson
accused Whitaker of attacking her and accusing her of contacting Mattucci
directly, to which Chandler-Anderson responded by “remind[ing] . . . Whitaker
that . . . Mattucci was pro se and that . . . Whitaker could not proceed on this
case until she had filed an appearance pursuant to the court[’]s instruction.”
Chandler-Anderson’s position was that all of the communications were properly
sent to Mattucci––despite the fact that Chandler-Anderson had served at least
one document on Whitaker before the February 2011 hearing––because “there
was not [an] attorney of record recognized by the court on file for” Mattucci.


                                        4
Mattucci’s discovery requests, including the requests for admissions, via U.S.

mail and fax. Chandler-Anderson claims she received a “courtesy copy” of the

discovery by fax on May 5, 2011 and that she received the discovery by mail on

May 6, 2011.

      Mattucci moved for summary judgment in June 2011, contending that

Montgomery had failed to timely respond to requests for admissions and that

based on the deemed responses, Mattucci was entitled to summary judgment.

The requests for admissions included the following:

      •   The attached Exhibit “A” is a true and correct copy of the police report
          filed by the investigating police officers regarding the accident the basis
          of this suit.

      •   Plaintiff Jasmine Montgomery had no injury caused by the accident.

      •   Plaintiff Jasmine Montgomery was found 100% at fault in the property
          damage subrogation.

      •   Plaintiff Jasmine Montgomery was noted as failing to yield the right of
          way on the police report.

      •   Plaintiff Jasmine Montgomery’s claims are frivolous and without merit.

      •   Defendant Wanda Mattucci is entitled to summary judgment on all
          counts.

The attached police report, which listed Montgomery as driving unit 1, stated,

“Unit 1 failed to yield the right of way to unit 2.” Additionally, attached to the

motion was a fax receipt showing that the discovery requests were faxed to

Chandler-Anderson on May 2, 2011.




                                         5
       Mattucci filed a motion for sanctions two weeks after filing the motion for

summary judgment. In it, she alleged that “[d]espite [Montgomery’s] having filed

several pleadings in this case starting on March 8, 2010, and several telephone

conversations between Plaintiff’s attorney and Defense Counsel, Plaintiff’s

attorney persists in directing pleadings, discovery and other communications to

everyone but the Defense attorney of record,” including Mattucci herself.

According to the motion, this last direct contact with Mattucci was on

May 1, 2011. Mattucci also alleged that Montgomery had answered requests for

disclosures on May 9, 2011 but that she did not answer the request for

admissions or other discovery until June 8, 2011; even then, she served only

Mattucci’s insurance carrier rather than her counsel.      According to Mattucci,

Chandler-Anderson had engaged in “a pattern of egregious and improper

conduct.”   Mattucci also pointed out specific instances in which Montgomery

answered discovery in ways directly contradictory to the allegations in her own

petition.

       Mattucci asked for (1) stipulations of certain facts, (2) a directive to

Montgomery not to oppose her defenses of assumption of the risk and

contributory negligence, (3) an order refusing to permit Montgomery to support

gross negligence and negligence per se claims, (4) an order striking all or part of

Montgomery’s pleadings, (5) an order overruling all of Montgomery’s objections

to Mattucci’s discovery requests, (6) an order deeming Mattucci’s requests for

admissions, (7) an order prohibiting Montgomery from propounding requests for


                                        6
admissions on Mattucci and limiting other discovery to ten questions each, (8) an

order       requiring   Montgomery   to   appear   for   deposition   no   later   than

September 15, 2011, and (9) a monetary penalty. The trial court set a hearing on

the motion for July 15, 2011.

        Chandler-Anderson filed an unverified motion for continuance, stating that

she had two cases set in Harris County for the date of the sanctions hearing.

The trial court denied this motion, but Whitaker nevertheless rescheduled the

hearing until July 29, 2011 as a courtesy. On July 21, 2011, Chandler-Anderson

filed another unverified motion for continuance, contending that due to an illness,

her doctor had placed her on medical leave until August 9, 2011; she stated that

she had sought another attorney to take over her other cases but not this one

because of its then-current posture. 6 Mattucci opposed the motion, and the trial

court denied it.

        After a hearing on July 29, 2011, which Montgomery and Chandler-

Anderson did not attend, the trial court granted Mattucci’s sanctions motion in its

entirety. The trial court made several stipulations of fact; estopped Montgomery


        6
        At a later hearing regarding sanctions, Chandler-Anderson asserted to the
trial court that her assistant attached a doctor’s note to this motion; however,
after the trial court told Chandler-Anderson that nothing was attached to the
motion, she admitted that the note had not been attached due to a clerical error
and offered to give her sworn testimony that she was out on medical leave.
However, she also said that the reason her assistant could not attach a sworn
affidavit was because Chandler-Anderson “was out.” She also admitted that she
was “ineffective and not properly prepared” that day and that she did not “know
what’s really going on with” Montgomery’s file.


                                           7
from adducing, entering, or otherwise developing any evidence or testimony

opposing Mattucci’s defenses of assumption of the risk and contributory

negligence; estopped Montgomery from adducing, entering, or otherwise

developing any evidence or testimony supporting her own claims of gross

negligence and negligence per se; struck all claims in Montgomery’s current or

future pleadings related to property damage, gross negligence, and negligence

per se; overruled all of Montgomery’s objections to Mattucci’s discovery requests;

ordered Montgomery to respond to Mattucci’s discovery requests within two

weeks; deemed the requests for admissions admitted; prohibited Montgomery

from propounding any requests for admissions on Mattucci; limited requests for

production and interrogatories on Mattucci to ten or fewer requests; and ordered

Montgomery to appear for an oral deposition in Denton County no later than

September 15, 2011.

      The trial court found as follows:

          [E]ach of the sanctions ordered below has a direct relationship to the
   offensive conduct and the sanctions are not excessive. The sanctions
   ordered are necessary to address Plaintiff’s repeated patterns of conduct in
   failing to properly serve opposing counsel with documents and responses, in
   failing to sign discovery responses and requests, in setting hearings on
   motions before filing pleadings and pulling the same hearings without notice
   to opposing counsel, and in answering discovery in a manner inconsistent
   with documents and information already filed with the Court.

The trial court also ordered “Plaintiff” to pay $3,000 to Whitaker.

      Montgomery filed a motion to reconsider. In it, she alleged that the court

was showing favor to Whitaker by, for example, failing to send Chandler-



                                          8
Anderson notice of the denial of her second motion for continuance, failing to

grant it when over twenty other courts had granted similar requests, and hearing

the July 29, 2011 hearing ex parte. Although she did not ask the trial court to

withdraw the deemed admissions, she argued that she had timely responded to

them. At a hearing on the motion to reconsider, the trial court gave Chandler-

Anderson the option of leaving the sanctions order as-is or having a new

sanctions hearing. She chose to have a new hearing, which was scheduled for

October 10, 2011.

      Before the October hearing, Montgomery filed a response to Mattucci’s

motion for summary judgment. In it, she contended that there was a genuine

issue of material fact on the following issues:

      • whether Mattucci failed to control her speed;

      • whether Mattucci was operating her vehicle at a high rate of speed;

      • whether Mattucci failed to keep a proper look out;

      • whether Mattucci failed to operate her vehicle safely;

      • whether Mattucci failed to timely assess traffic conditions;

      • whether Mattucci failed to operate her vehicle in a safe and reasonable

      manner;

      • whether Mattucci failed to take evasive action to avoid the collision;

      • whether Mattucci failed to reduce her speed as warranted;

      • whether Mattucci failed to avoid a preventable accident;

      • whether Mattucci failed to timely assess traffic conditions; and/or


                                          9
      • whether Mattucci failed to act as a reasonable and prudent person would

      under the same or similar conditions, circumstances, or both.

Montgomery also contended that an adequate time for discovery had not passed,

that she had timely responded to Mattucci’s discovery within thirty days of

May 5, 2011, that Whitaker had engaged in “malicious interference with the

judicial process of” her claims by filing the motion for special appearance

objecting to the indigency affidavit, and that Chandler-Anderson did not know that

Mattucci was represented by an attorney in the matter until May 2, 2011.

      On September 22, 2011, Montgomery filed a motion for sanctions in which

she alleged that Mattucci’s special appearance objecting to her affidavit of

indigence was a “false pleading” and that Chandler-Anderson had never received

a copy of it from Whitaker.

      At the second sanctions hearing in October 2011, Chandler-Anderson

argued that the requests for admissions were mailed to Mattucci’s insurance

carrier rather than Whitaker as the result of a clerical error. However, the trial

court noted that despite knowing this for three and one-half months, Chandler-

Anderson had nevertheless failed to send the discovery directly to Whitaker. The

trial court reiterated its sanctions order against Montgomery, increasing the

monetary award to $6,000, and denied Montgomery’s motion for sanctions

against Whitaker.    Additionally, the trial court granted Mattucci’s motion for

summary judgment.




                                       10
                Nonmonetary Sanctions Against Montgomery

      In her first three issues, Montgomery contends that the trial court abused

its discretion by imposing excessive, death penalty sanctions against her without

first testing the efficacy of lesser sanctions.   Although Montgomery does not

directly challenge the summary judgment, one of her arguments under these

three issues is that the trial court should have withdrawn the deemed admissions.

      Montgomery acknowledges that the summary judgment hinged on the

deemed admissions and that if the trial court was correct in concluding that the

admissions were deemed, then the summary judgment was proper. However,

she contends that a “harmless” clerical error should not prevent her from

pursuing her claims.

Applicable Law

      Rule 198.2 provides that “[t]he responding party must serve a written

response [to requests for admissions] on the requesting party within 30 days

after service of the request.” Tex. R. Civ. P. 198.2(a). If a response is not timely

served, the request is considered admitted without the necessity of a court order.

Tex. R. Civ. P. 198.2(c).       Matters deemed admitted under the rule are

conclusively established as to the party making the admission unless the court

permits the party to withdraw or amend the admission. Tex. R. Civ. P. 198.3.

The court may allow a party to withdraw deemed admissions if the party

      shows good cause for the withdrawal or amendment . . . and . . . the
      court finds that the parties relying upon the responses and deemed
      admissions will not be unduly prejudiced and that the presentation of


                                        11
      the merits of the action will be subserved by permitting the party to
      amend or withdraw the admission.

Id.

      The Texas Supreme Court has held as follows:

             Requests for admission are intended to simplify trials. They
      are useful when “addressing uncontroverted matters or evidentiary
      ones like the authenticity or admissibility of documents.” . . . .

            As we have previously observed, requests for admission
      should be used as “a tool, not a trapdoor.” And when admissions
      are deemed as a discovery sanction to preclude a presentation of
      the merits, they implicate the same due process concerns as other
      case-ending discovery sanctions. Thus, in Wheeler we required a
      showing of “flagrant bad faith or callous disregard for the rules” to
      substantiate a summary judgment based solely on deemed
      admissions.

             ....

             In Wheeler, we described the requisite demonstration of good
      cause and undue prejudice. Good cause, we said, “is established
      by showing the failure involved was an accident or mistake, not
      intentional or the result of conscious indifference.” Undue prejudice
      we found to depend “on whether withdrawing an admission or filing a
      late response will delay trial or significantly hamper the opposing
      party’s ability to prepare for it.”

Marino v. King, 355 S.W.3d 629, 632–33 (Tex. 2011) (citations omitted); see also

TransAm. Natural Gas Corp. v. Powell, 811 S.W.2d 913, 918 (Tex. 1991) (orig.

proceeding) (“Sanctions which are so severe as to preclude presentation of the

merits of the case should not be assessed absent a party’s flagrant bad faith or

counsel’s callous disregard for the responsibilities of discovery under the rules.”).




                                         12
Discussion

        Here, even a cursory review of the record reveals actions by Chandler-

Anderson that indicate, at the worst, a lack of candor with the court and Whitaker

or, at the very least, a lack of familiarity with the case, extreme disorganization,

and a lack of awareness of procedural rules so as to amount to “flagrant bad faith

or . . . callous disregard for the responsibilities of discovery under the rules.”

        Chandler-Anderson, who is also Montgomery’s mother, spent over a year

attempting to prove Montgomery’s indigency status, despite the trial court’s

having denied the right to proceed without prepayment of filing fees at least three

times. Before the February 2011 indigency hearing, Chandler-Anderson sent the

Denton County district clerk a letter stating that she was “alarmed and

concern[ed]” that the clerk had not sent the citation “last year.” Although counsel

criticized the district clerk for not doing so, counsel showed a lack of diligence in

monitoring the status of the case. Cf. Boyattia v. Hinojosa, 18 S.W.3d 729, 734

(Tex. App.––Dallas 2000, pet. denied) (holding, in context of limitations

determination, that counsel’s failure to act during three-month time period

following clerk’s failure to issue citation showed lack of diligence as a matter of

law).

        Although Whitaker had represented Mattucci in matters related to

Montgomery’s claim since at least March 2010 (and––as evidenced by the

certificate of service on her January 2011 motion to reconsider––Chandler-

Anderson was well aware of such representation), Chandler-Anderson began


                                          13
serving documents after the February 2011 hearing directly on Mattucci. Her

argument that Mattucci was pro se after that hearing because Whitaker declined

to make a general appearance for Mattucci (who had not been served, which

Chandler-Anderson also knew) is not well-taken. See Tex. R. Civ. P. 120 (“The

defendant may, in person, or by attorney, or by his duly authorized agent, enter

an appearance in open court. Such appearance shall be noted by the judge

upon his docket and entered in the minutes, and shall have the same force and

effect as if the citation had been duly issued and served as provided by law.”);

see also Tex. Disciplinary R. Prof’l Conduct 4.02(a) (“In representing a client, a

lawyer shall not communicate or cause or encourage another to communicate

about the subject of the representation with a person . . . the lawyer knows to be

represented by another lawyer regarding that subject, unless the lawyer has the

consent of the other lawyer or is authorized by law to do so.” (emphasis added)).

      Despite Whitaker attaching an electronic confirmation to Mattucci’s motion

for summary judgment showing that the requests for admissions and other

discovery were sent to Chandler-Anderson’s correct fax number at 9:59 a.m. on

May 2, 2011, Chandler-Anderson persisted to state in responsive pleadings and

arguments to the court that she did not receive the fax until May 5, 2011. She

also continued to assert that the responses were timely when they were

postmarked June 6, 2011 and mailed to Mattucci’s insurance carrier rather than




                                       14
Whitaker. 7 Despite being informed via the motion for summary judgment and

motion for sanctions filed in June 2011 that Whitaker had never received the

answers to the requests for admissions from Chandler-Anderson, Chandler-

Anderson never served her discovery responses on Whitaker and never explicitly

asked the trial court to withdraw the deemed admissions.

      During the second sanctions hearing, Chandler-Anderson represented to

the trial court that although her assistant had inadvertently mailed the answers to

the requests for admissions to Mattucci’s insurance carrier, her assistant followed

up by sending them to Whitaker; Chandler-Anderson claimed she had a certified

mail receipt evidencing this follow-up mailing.     But the certified mail receipt

Chandler-Anderson showed the trial court was for Montgomery’s answers to

requests for disclosures, which Chandler-Anderson sent on May 9, 2011. When

the trial court asked for a cover letter to show what was sent, Chandler-Anderson

provided a cover letter for the responses to the requests for disclosures. The trial

court finally pointed out that Chandler-Anderson had no evidence that she had

ever followed up by mailing the answers to the requests for admissions to

Whitaker, and Chandler-Anderson admitted there was no such evidence. When

she again stated, “I responded to the discovery requests sanctions,” the trial

court answered, “You keep saying that, but there’s nothing in the world other


      7
       Although the certificate of service on the response indicates that it was
mailed June 5, 2011, one day late, the postmark on the envelope mailed to the
insurance carrier shows that the response was mailed on June 6, 2011.


                                        15
than you saying it that says you did.      Your paperwork doesn’t add up, your

certificate of written discovery doesn’t add up. It’s never been filed. I can’t just

take your word for it.”

      Although having been given a second opportunity to defend the sanctions

motion, Chandler-Anderson showed up at the hearing unprepared and

disorganized, misrepresented to the trial court that she had served responses to

the requests for admissions on Whitaker, and accused Whitaker of “lying” and

“manipulating.” She blamed her clerical assistant for the “disarray of [her] office,”

stated that she had not anticipated that she would have to appear with proof that

she had sent the responses to Whitaker, and offered to answer the discovery “at

this point in time.” The trial court responded,

      [D]ating back to the motion for summary judgment three-and-a-half
      months ago, the accusation has been crystal clear that no discovery
      was ever propounded. So I don’t know how you can stand here and
      say you didn’t know this issue was going to come up today when
      looking at the June 14th motion for summary judgment, based upon
      alleged failures to respond to requests for disclosure [sic] and
      requests for admissions most importantly, that you didn’t think that
      issue would come up. That’s what all this is based upon.

      Based on our review of the entire record, we conclude and hold that the

trial court did not abuse its discretion by refusing to withdraw the deemed

admissions.     The record shows that Chandler-Anderson’s failure to timely

respond to the requests for admissions was part of a pattern of conduct that




                                         16
showed flagrant bad faith and callous disregard for the rules of discovery 8 in a

case in which the prospect of any recovery was dubious to begin with. 9 We

overrule Montgomery’s first through third issues. 10

                   Monetary Sanctions Against Montgomery

      In her fourth and fifth issues, Montgomery contends that the trial court

abused its discretion by imposing sanctions directly against her rather than

Chandler-Anderson.     As with her first through third issues, to the extent she

complains about sanctions affecting her ability to present her case, we need not

      8
        The trial judge said on the record that he was granting the sanctions
“because of the gross violations of the rules of professional conduct, the gross
violation of the Rules of Civil Procedure, the gross violations of all local rules[,]
and the comedic state that this case is in as a result of” Chandler-Anderson’s
deficiencies. In addition to the conduct evidenced in the appellate record,
Chandler-Anderson’s brief before this court is rife with typos––spelling and
grammar errors––to the point that it is difficult to follow. Counsel’s conduct in this
appeal and in the underlying case is so concerning to this panel that we are
referring the matter to the State Bar grievance committee. A copy of this opinion
and the appellate record shall be sent to the Texas State Bar’s Chief Disciplinary
Counsel’s Office. See Tex. Rules Disciplinary P. R. 5.02; see also Tex.
Disciplinary R. Prof’l Conduct 1.01(a), 3.01, 3.02, 3.03, 3.04(c)(1)–(2), (5),
4.02(a), 5.03(a), 8.03(a).
      9
       The evidence showed that the police report from the accident faulted
Montgomery and that both parties’ insurance carriers denied coverage, finding
that Montgomery was responsible for the accident. In addition, Montgomery’s
pleadings themselves supported the conclusions in the police report.
      10
        We need not address her issues to the extent they complain about death
penalty sanctions under rule 215 because the summary judgment was based on
the deemed admissions, not the rule 215 sanctions. See Tex. R. App. P. 47.1;
see also Alexander v. State, No. 02-10-00302-CV, 2011 WL 3836452, at *4 (Tex.
App.––Fort Worth Aug. 31, 2011, pet. denied) (mem. op.) (noting that “deemed
admissions are the consequence of missing a procedural deadline, not a
sanction for discovery abuse”).


                                         17
address them. See Tex. R. App. P. 47.1. However, to the extent she complains

about the $6,000 monetary sanction, we address the issues.

      Although at the second sanctions hearing the trial court told Chandler-

Anderson, “I’m still making up my mind about what figures I’m going to put in

here to sanction you,” the sanctions order states, “Plaintiff is ORDERED to pay

monetary sanctions in the amount of $6,000.00 to Defense Counsel.” [Emphasis

added.]

       The trial court must at least attempt to determine whether the offensive

conduct is attributable only to counsel, only to the party, or to both. TransAm.

Natural Gas Corp., 811 S.W.2d at 917; Richmond Condos. v. Skipworth

Commercial Plumbing, Inc., 245 S.W.3d 646, 661 (Tex. App.––Fort Worth 2008,

pet. denied) (op. on reh’g).     A party must bear some responsibility for its

counsel’s discovery abuses when it is or should be aware of counsel’s conduct

and the violation of the discovery rules.     TransAm. Natural Gas Corp., 811

S.W.2d at 917; Richmond Condos., 245 S.W.3d at 661. Ultimately, the sanction

imposed by the trial court must relate directly to the abuse found. TransAm.

Natural Gas Corp., 811 S.W.2d at 917; Richmond Condos., 245 S.W.3d at 661.

      We have already discussed Chandler-Anderson’s conduct issues.

Although there is some evidence in the record that Montgomery worked for

Chandler-Anderson––also her mother––as a legal assistant, there is nothing in

the record showing that Montgomery herself worked on the case or that she was

responsible for the discovery and clerical errors. The trial court’s ire was clearly


                                        18
directed at counsel’s behavior, including her deficiencies in pleading, discovery,

and her lack of candor with the court. Although possible, nothing in the record

shows that Montgomery directed, approved, or was aware of counsel’s

deficiencies in this case. Because “a party should not be punished for counsel’s

conduct in which it is not implicated apart from having entrusted to counsel its

legal representation,” imposing this monetary sanction against Montgomery

herself is an abuse of discretion. See Richmond Condos., 245 S.W.3d at 661;

see also TransAm. Natural Gas Corp., 811 S.W.2d at 917.          Accordingly, we

conclude and hold that the trial court should not have ordered monetary

sanctions against Montgomery rather than her counsel.

      Mattucci argues that we should modify the judgment to impose the

monetary sanctions against Chandler-Anderson because the trial court orally

pronounced at the hearing that he intended to impose the monetary sanctions

against Chandler-Anderson.     But in a civil case, when oral pronouncements

conflict with a written judgment, the written judgment prevails. Seasha Pools,

Inc. v. Hardister, 391 S.W.3d 635, 640 (Tex. App.––Austin 2012, no pet.); see

Moore v. Jet Stream Invs., Ltd., 315 S.W.3d 195, 204 (Tex. App.––Texarkana

2010, pet. denied). Thus, we sustain Montgomery’s fourth and fifth issues in part

as to the $6,000 in monetary sanctions and will modify the trial court’s judgment

to delete the $6,000 in monetary sanctions.




                                       19
                        Sanctions Motion Against Whitaker

         In her sixth issue, Montgomery contends that the trial court abused its

discretion by denying her motion for sanctions against Whitaker and two other

lawyers in the same firm. Her main contention is that Whitaker filed the special

appearance falsely and in bad faith because it was an inappropriate vehicle to

challenge Montgomery’s claim of indigency. Whitaker contends that her use of

the term “special appearance” was simply a misnomer of pleadings and that

there is no evidence her attempted challenge to the indigency affidavit on

Mattucci’s behalf was made in bad faith.

         Rule 145(d) allows a defendant to challenge a plaintiff’s attempt to proceed

without prior payment of costs. Tex. R. Civ. P. 145(d). Because Mattucci had

not yet been served with citation, Whitaker was attempting to lodge such a

challenge while avoiding submitting her client to the jurisdiction of the court

without proper service. See Tex. R. Civ. P. 120 (“The defendant may, in person,

or by attorney, or by his duly authorized agent, enter an appearance in open

court.    Such appearance shall be noted by the judge upon his docket and

entered in the minutes, and shall have the same force and effect as if the citation

had been duly issued and served as provided by law.”); In re E.R., 385 S.W.3d

552, 563 (Tex. 2012) (“Personal jurisdiction, a vital component of a valid

judgment, is dependent ‘upon citation issued and served in a manner provided

for by law.’” (quoting Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990))). A

special appearance, on the other hand, is “for the purpose of objecting to the


                                          20
jurisdiction of the court over the person or property of the defendant on the

ground that such party or property is not amenable to process issued by the

courts of this State.” Tex. R. Civ. P. 120a.

      Although Whitaker urged her challenge as a special appearance, she was

candid when the court asked what her purpose was in filing the document. She

wanted to challenge Montgomery’s attempt to proceed as an indigent without

making an appearance in accordance with rule 120. She served the special

appearance on Chandler-Anderson, who objected to it at the February 2011

hearing. Chandler-Anderson did not object to the trial court’s allowing it to be

filed as an amicus pleading. See Young Chevrolet, Inc. v. Tex. Motor Vehicle

Bd., 974 S.W.2d 906, 912 (Tex. App.––Austin 1998, pet. denied) (concluding that

letters sent to trial court by several nonparty car dealers were not improper ex

parte communications and were more in the nature of amicus curiae pleas).

Moreover, nothing indicates that Whitaker was attempting to abuse the process

or raise a frivolous challenge. We therefore conclude and hold that the trial court

did not abuse its discretion by denying the motion for sanctions against Whitaker.

      As to the other two lawyers, nothing in the record shows that they had any

involvement in the case. Accordingly, the trial court did not abuse its discretion

under the first prong of TransAmerican.        TransAm. Natural Gas Corp., 811

S.W.2d at 917. We overrule Montgomery’s sixth and final issue.




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                                  Conclusion

      Having sustained Montgomery’s fourth and fifth issues in part, we modify

the trial court’s judgment to delete the monetary sanctions award of $6,000.

Having overruled the remainder of the issues, we affirm the trial court’s judgment

as modified.




                                                  TERRIE LIVINGSTON
                                                  CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

DELIVERED: May 23, 2013




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