                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00385-CV

RONALD HARDEN                                                       APPELLANT

                                       V.

SHAN MERRIMAN                                                        APPELLEE


                                    ----------

          FROM THE 362ND DISTRICT COURT OF DENTON COUNTY

                                    ----------

                        MEMORANDUM OPINION 1

                                    ----------

      Appellant Ronald Harden appeals the trial court’s order that granted

summary judgment in favor of appellee Shan Merriman and imposed a sanction

of $1,500 against appellant. In three issues, appellant contends that the trial

court abused its discretion by denying his motion for continuance; that the trial

court improperly ruled on appellee’s traditional and no-evidence motion for

summary judgment with a pending motion for continuance, with improper notice

      1
       See Tex. R. App. P. 47.4.
of the summary judgment hearing to appellant, and without affording appellant an

adequate opportunity to complete discovery; and that the trial court improperly

imposed a sanction upon appellant without conducting an evidentiary hearing or

identifying sanctionable conduct in its order. We modify the trial court’s judgment

and affirm it as modified. 2

                               Background Facts

      Appellant, who is an attorney, filed a lawsuit against appellee in December

2011, alleging personal injury damages from an automobile accident that had

occurred on Christmas Eve in 2009. In his petition, appellant asserted claims of

negligence, negligence per se, and gross negligence while contending that

appellee had “unlawfully slammed into the rear of [appellant’s] vehicle” on an ice-

covered roadway.      He also claimed that as a result of the collision, he had

suffered severe personal injuries that had caused permanent bodily impairment.

In January 2012, appellee answered the lawsuit with a general denial, and at

some point in early 2012, appellee served written discovery on appellant.

      On March 27, 2012, through a letter, appellee’s counsel advised appellant

that appellee “neither owned nor was driving the vehicle that was involved in the

accident” related to appellant’s lawsuit. 3   The letter informed appellant that


      2
       See Tex. R. App. P. 43.2(b).
      3
      This letter belies appellant’s repeated claims on appeal that appellee’s
motion for summary judgment was the first time that appellee claimed that he
had no liability for the accident.


                                        2
appellee’s daughter, Ashley Merriman, had owned the car that appellant had

been in an accident with and that Ashley’s boyfriend, Josh Bennett, had been

driving the car at the time of the accident. Thus, in the letter, appellee’s counsel

asked appellant to dismiss the lawsuit against appellee and represented that if

appellant did not dismiss it, appellee would pursue a summary judgment and the

recovery of fees and expenses associated with seeking summary judgment.

      Appellant did not respond to the letter, so in late April 2012, appellee filed,

in one document, a traditional and no-evidence motion for summary judgment

(on the ground that he could not have breached any legal duty because he did

not own or drive the car at issue) as well as a motion for sanctions under

chapters 9 and 10 of the civil practice and remedies code 4 and rule of civil

procedure 13. 5    To his motion for summary judgment, appellee attached

affidavits from himself and Ashley proving that he was not personally involved in

the accident leading to appellant’s suit and did not own the automobile that

crashed into appellant’s car. In his motion for sanctions, appellee alleged that

appellant’s claims were “baseless, groundless[,] and frivolous” and that appellant

had “ignored counsel’s request” to dismiss appellee from the suit.         Appellee

stated, “Since [appellant] filed suit against [appellee], who is obviously not a

proper party and has nothing to do with the car accident made the basis of this

      4
      See Tex. Civ. Prac. & Rem. Code Ann. §§ 9.001–.014, 10.001–.006
(West 2002).
      5
       See Tex. R. Civ. P. 13.


                                         3
suit, [appellee] requests [that] sanctions be imposed . . . .” Also, appellee argued

that the sanction could be predicated on appellant’s refusal to dismiss appellee

from the suit. Appellee asked the trial court to order a sanction of $2,000 as an

approximation of the “amount . . . incurred . . . to prosecute the motion for

summary judgment.”

      On May 2, 2012, the trial court set a hearing for 2:30 p.m. on May 31, 2012

to consider appellee’s motions for summary judgment and for sanctions. Near

midnight on May 30, 2012, after the deadline for responding to the motion for

summary judgment, 6 appellant filed a verified motion for a continuance of the

summary judgment and sanctions hearing. Appellant stated that he could not be

at the hearing that had allegedly been “set for 9:00 a.m.” on May 31 because he

was scheduled to represent a criminal defendant at a hearing on a motion to

revoke probation in a different county at that time. He also stated that no other

attorney could appear for him at the summary judgment and sanctions hearing.

Furthermore, he contended that discovery was incomplete and that he desired to

take appellee’s, Ashley’s, and Josh’s depositions. Appellant stated, “Once the

facts are fully developed, if the evidence bears out the sworn affidavit testimony

of [appellee and Ashley], [appellant] will voluntarily dismiss the claims raised

against [appellee].” Finally, in a written declaration that appellant attached to his

motion for continuance, appellant stated that at the scene of the accident, he had


      6
       See Tex. R. Civ. P. 166a(c).


                                         4
been “presented with an insurance card bearing the name of Shan Merriman

. . . . The male driving the [car] identified himself as Shan Merriman and the

female passenger did not contradict this assertion.”

      Appellant did not file a response to appellee’s motions for summary

judgment and sanctions, nor did he appear at the hearing on May 31. On the

day of the hearing, the trial court granted summary judgment in favor of appellee,

dismissed appellant’s claims with prejudice, and imposed sanctions against

appellant for $1,500. The trial court denied appellant’s motion for continuance in

an order issued on June 4, 2012, stating that the motion had been untimely filed.

      About a month later, appellant filed a motion for new trial, contending that

summary judgment had been improperly granted because, among other reasons,

his allegations in his suit against appellee were based upon false statements

made by Ashley and Josh at the scene of the accident 7 and appellee’s insurance

carrier had already accepted liability for the accident, which allegedly misled him

into suing appellee and also allegedly barred appellee from denying liability.

Appellant also argued that the trial court had abused its discretion by not granting

his motion for continuance because of the conflict with appellant’s representation


      7
       Appellant stated in an affidavit that on the day of the accident, Ashley and
Josh had produced an insurance card containing appellee’s name. Appellant
also stated that appellee’s insurance carrier later paid a $661.43 property
damage claim but that the carrier did not pay personal injury compensation as
requested by appellant. On appeal, appellant contends that appellee, Ashley,
and Josh participated in a fraudulent scheme by allowing appellee’s insurer to
pay a property damage claim when appellee was not a party to the accident.


                                         5
of a client in a criminal case, because appellant had desired to conduct

discovery, and because the discovery period had not expired when the trial court

granted summary judgment.          Finally, appellant asserted that the imposed

sanction was unjust and a violation of his constitutional rights to due process

because the trial court had not held an evidentiary hearing and had not set out

findings supporting the sanctions. The trial court denied appellant’s motion for

new trial by operation of law, 8 and he brought this appeal. 9

               The Denial of Appellant’s Motion for Continuance

      In his first two issues, appellant contends that the trial court abused its

discretion by denying his motion for continuance and thus erred by conducting a

hearing and ruling on appellee’s motions for summary judgment and sanctions.

Appellant contends that the trial court should have granted the motion for

continuance because the court should have given his representation of a criminal

      8
       See Tex. R. Civ. P. 329b(c).
      9
       On September 17, 2012, appellant filed a request for findings of fact and
conclusions of law in the trial court with regard to the court’s May 31, 2012
summary judgment and sanctions order. The trial court did not file findings of
fact and conclusions of law. On appeal, in the statement of the case portion of
appellant’s brief, he asks for “this Court’s aid in requiring the Trial Court to file
such findings of fact and conclusions of law.” But appellant’s request in the trial
court was untimely. See Tex. R. Civ. P. 296 (stating that a request for findings of
fact and conclusions of law “shall be filed within twenty days after the judgment is
signed”); Wal-Mart Stores, Inc. v. Kelley, 103 S.W.3d 642, 645 (Tex. App.—Fort
Worth 2003, no pet.) (“[B]ecause appellant failed to timely file its request, it has
waived its complaint regarding the court’s failure to issue findings of fact and
conclusions of law.”). Thus, to the extent that appellant asks us to abate this
appeal for the trial court’s filing of findings of fact and conclusions of law, we
deny that request.


                                          6
defendant precedence over the summary judgment and sanctions hearing,

because he was allegedly given insufficient notice of the summary judgment

hearing, and because he needed more time to conduct discovery in light of

appellee’s statement that he was not the driver of the car that crashed into

appellant’s car.

      We review a trial court’s ruling on a motion for continuance for an abuse of

discretion. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800

(Tex. 2002). We do not substitute our judgment for that of the trial court. In re

Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002) (orig. proceeding). Instead,

we must determine whether the trial court’s action was so arbitrary and

unreasonable as to amount to a clear and prejudicial error of law. Joe v. Two

Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). The test is whether

the trial court acted without reference to guiding rules or principles.    Cire v.

Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004).

Allegedly conflicting criminal and civil settings

      In his first issue, appellant contends that the trial court abused its

discretion by denying a continuance because attending the summary judgment

and sanctions hearing would have violated obligations, including fiduciary duties,

to his criminal client. Appellant insists that the trial court, as a matter of law,

should have granted his continuance because a criminal hearing statutorily

preempts a civil hearing. He also states that he “made the only choice permitted”

by representing his incarcerated client “as was his duty.”


                                         7
      We agree with appellee, however, that appellant did not prove the factual

premise undergirding his first issue, which is that the summary judgment and

sanctions hearing actually conflicted with his representation of a criminal

defendant. In his motion for continuance, appellant asserted that he could not

attend a 9:00 a.m. hearing because of a conflict, but the trial court’s hearing on

the motions for summary judgment and for sanctions was actually set for 2:30

p.m. Appellant’s motion for continuance did not provide details about the criminal

hearing to indicate that it would last long enough to prevent appellant’s

appearance at the summary judgment and sanctions hearing later that afternoon.

      Furthermore, even if appellant had proven that the criminal and civil

hearings actually conflicted, we cannot conclude that the trial court abused its

discretion by denying the continuance based on that conflict under the

circumstances of this case. Appellant’s motion for continuance did not establish

how long appellant had known about the alleged conflict or whether he had

sought to reset the criminal hearing to avoid the alleged conflict, but the record

shows that appellant waited until the literal eve of the summary judgment and

sanctions hearing to inform the trial court about the alleged conflict and to seek a

continuance. Continuances should not be granted “except for sufficient cause

supported by affidavit, or by consent of the parties, or by operation of law.” Tex.

R. Civ. P. 251. Our sister courts have held that a trial court does not abuse its

discretion by denying a motion for continuance when the movant first informs the

trial court about the reason for a continuance shortly before the setting at issue or


                                         8
when the movant did not make attempts to avoid a conflict in settings apart from

filing the motion for continuance. See Betts v. Betts, No. 14-11-00267-CV, 2012

WL 2803750, at *3 (Tex. App.—Houston [14th Dist.] July 10, 2012, pet. denied)

(mem. op.) (citing In re K.A.R., 171 S.W.3d 705, 711 (Tex. App.—Houston [14th

Dist.] 2005, no pet.)); Christus Health v. Ragsdale, No. 13-10-00326-CV, 2011

WL 3854145, at *6 (Tex. App.—Corpus Christi Aug. 31, 2011, no pet.) (mem.

op.) (stating that whether a “a party delayed unreasonably in bringing its motion

for continuance is a factor a reviewing court may consider in determining whether

a trial court abused its discretion in denying a motion for continuance”); R.M.

Dudley Constr. Co. v. Dawson, 258 S.W.3d 694, 701 (Tex. App.—Waco 2008,

pet. denied); see also Beutel v. Dallas Cnty. Flood Control Dist., No. 1, 916

S.W.2d 685, 693 (Tex. App.—Waco 1996, writ denied) (“We cannot find that the

trial court committed a clear abuse of discretion in refusing to grant the motion

[for continuance] when it found that the issue could have been brought before the

court several months earlier, rather than one week before trial.”).

      Finally, we note that in support of his argument in his first issue, appellant

cites an article from the code of criminal procedure to contend that criminal cases

must be given priority over civil cases. See Tex. Code Crim. Proc. Ann. art.

32A.01 (West 2006). The article provides that “[i]nsofar as is practicable, the trial

of a criminal action shall be given preference over trials of civil cases . . . .” Id.

(emphasis added). Even if article 32A.01 applies to criminal and civil hearings

rather than only trials under its explicit language, appellant did not prove that the


                                          9
criminal and civil hearings relevant to this appeal actually conflicted as to trigger

any application of article 32A.01. Also, although appellant contends in his brief

that article 32A.01 is “not advisory,” we have previously held the exact opposite.

Cain v. State, 747 S.W.2d 514, 516 (Tex. App.—Fort Worth 1988, no writ) (“We

are of the opinion that article 32A.01, as applied to the courts, is advisory; the

language itself says ‘[i]nsofar as is practicable. . . .’”).

       For all of these reasons, we hold that the trial court did not abuse its

discretion by denying appellant’s motion for continuance on the basis of

conflicting criminal and civil hearing settings, and we overrule his first issue. See

BMC Software Belg., N.V., 83 S.W.3d at 800.

The notice of the summary judgment hearing and appellant’s alleged need
to conduct discovery

       In his second issue, appellant contends that he did not receive sufficient

notice of the summary judgment and sanctions hearing and that the trial court

abused its discretion by denying his motion for continuance without affording him

an adequate opportunity to complete discovery.

       Generally, with notice to opposing counsel, the motion for summary

judgment must be filed and served at least twenty-one days before the time

specified for the hearing. See Tex. R. Civ. P. 166a(c); Rockwell v. Wells Fargo

Bank, N.A., No. 02-12-00100-CV, 2012 WL 4936619, at *1 (Tex. App.—Fort

Worth Oct. 18, 2012, no pet.) (mem. op.). In appellee’s motions for summary

judgment and sanctions, which contained a file stamp dated April 26, 2012,



                                            10
appellee stated that he had served the motions on appellant on April 25, 2012.

The trial court signed its notice of the May 31, 2012 hearing on May 2, 2012.

         Nonetheless, appellant contends for the first time on appeal that he

received appellee’s motions “on or about May 11, 2012, less than twenty-one

days prior to the hearing.”      To support that assertion, appellant refers to

documents that are attached to his brief but that are not in the record. Appellee

has filed a motion to strike those documents because they are not contained in

the clerk’s record, and we grant that motion in part. 10 See Carlton v. Trinity

Universal Ins. Co., 32 S.W.3d 454, 458 (Tex. App.—Houston [14th Dist.] 2000,

pet. denied); Crossley v. Staley, 988 S.W.2d 791, 794 (Tex. App.—Amarillo

1999, no pet.); Siefkas v. Siefkas, 902 S.W.2d 72, 74 (Tex. App.—El Paso 1995,

no writ) (“It is elementary that, with limited exceptions not material here, an

appellate court may not consider matters outside the appellate record.”). Even if

we could consider those documents, appellant did not raise the timeliness of his

receipt of notice of the hearing on the summary judgment and sanctions motions

in the trial court, and he therefore waived that argument for our review. See Tex.

R. App. P. 33.1(a); Rockwell, 2012 WL 4936619, at *1–2; McCuen v. Huey, 255

S.W.3d 716, 738 (Tex. App.—Waco 2008, no pet.) (“[A] party must object to a

lack of notice in the trial court to preserve that issue for appellate review.”).



         10
          We deny, however, appellee’s motion for sanctions that he filed in this
court.


                                        11
Thus, we overrule the part of appellant’s second issue that complains of allegedly

insufficient notice of the summary judgment hearing.

      Next, appellant contends that the trial court abused its discretion by

denying his motion for continuance because he needed more time to “conduct

discovery of [a]ppellee once [appellee] revealed that he was not the male driver

at the accident scene.” Appellant accuses appellee of concealing facts and then

seeking “to end the case based upon [the] concealed facts.”

      A trial court may refuse to grant a motion for summary judgment when the

party opposing the motion shows the need for discovery.          Tex. R. Civ. P.

166a(g).   A litigant who fails to diligently use the rules of civil procedure for

discovery purposes, however, is not entitled to a continuance. State v. Wood Oil

Distrib., Inc., 751 S.W.2d 863, 865 (Tex. 1988). In deciding whether a trial court

abused its discretion in denying a motion for continuance seeking additional time

to conduct discovery, we consider factors such as the length of time the case has

been on file, the materiality and purpose of the discovery sought, and whether

the party seeking the continuance has exercised due diligence to obtain the

discovery sought. Joe, 145 S.W.3d at 161. An affidavit asserting diligence in

obtaining discovery must state with particularity what diligence was used;

conclusory allegations of diligence are insufficient.    Landers v. State Farm

Lloyds, 257 S.W.3d 740, 747 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (op.

on reh’g) (citing Gregg v. Cecil, 844 S.W.2d 851, 853 (Tex. App.—Beaumont

1992, no writ)).


                                       12
      In his motion for continuance, appellant stated in one paragraph that

discovery was “incomplete” and that he desired to take the depositions of

appellee, Ashley, and Josh concerning their claims that Josh was driving the

vehicle at the time of the accident and that Ashley owned it. But appellant did not

assert that he had been diligent in seeking discovery or specify any facts

showing such diligence. As appellee argues on appeal, appellee provided notice

to appellant on March 27, 2012 about appellee’s assertion that he neither owned

nor was driving the car that was involved in the accident. The March 27 letter

informed appellant that appellee would seek summary judgment if he did not

receive a response to the letter.    The record does not reveal an attempt by

appellant to conduct any form of discovery from March 27, 2012 through

May 30, 2012, which was when appellant filed his motion for continuance and

which was more than one month after appellee filed his motion for summary

judgment. 11   Thus, although appellant’s lawsuit had been on file for only

approximately five months at the time of the summary judgment hearing and

although testimony provided by appellee, Ashley, and Josh might have been

material, we cannot conclude that the trial court abused its discretion by denying

appellant’s motion for continuance because the record establishes appellant’s

lack of diligence in seeking discovery between the time he knew of facts

establishing his apparent need for it and the eve of the summary judgment

      11
       Also, the record does not establish any attempt by appellant to conduct
discovery before March 27, 2012.


                                        13
hearing. See Wood Oil Distrib., Inc., 751 S.W.2d at 865; see also Aerobic Maint.

& Serv., Inc. v. First United Bank & Trust Co., No. 02-08-00232-CV, 2009 WL

1425179, at *4 (Tex. App.—Fort Worth May 21, 2009, no pet.) (mem. op.)

(holding that although a suit had been pending for only two months at the time

that the appellee sought summary judgment, a trial court did not abuse its

discretion by denying a motion for continuance because the appellant had not

diligently sought discovery and had asked for a continuance only three days

before the submission of the motion for summary judgment); Clark v. Compass

Bank, No. 02-07-00050-CV, 2008 WL 2168292, at *3 (Tex. App.—Fort Worth

May 22, 2008, no pet.) (mem. op.) (upholding a trial court’s denial of a motion for

continuance because, in part, the appellant did not seek discovery within thirty-

five days of the date the appellee filed a motion for summary judgment that

contained new material allegations); Landers, 257 S.W.3d at 747 (concluding

that a trial court did not abuse its discretion by denying a motion for continuance

when the appellant waited to seek the continuance until after the deadline for

responding to the motion for summary judgment and when neither the motion for

continuance nor an affidavit attached to it contained facts establishing diligence

in seeking discovery). We overrule the remaining part of appellant’s second

issue.

                             The Propriety of Sanctions

         In his third issue, appellant asserts that the trial court’s $1,500 sanction

against him is improper. We review a trial court’s imposition of sanctions for an


                                          14
abuse of discretion. Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583

(Tex. 2006). A judgment imposing sanctions will be upheld “on any applicable

theory that finds support in the record.” Dunavin v. Meador, No. 02-07-00230-

CV, 2008 WL 2780782, at *4 (Tex. App.—Fort Worth July 17, 2008, no pet.)

(mem. op.).

       Appellant argues, among other contentions, that the trial court did not state

sanctionable conduct within its order and that the sanction against him was

“improvidently granted and without foundation in fact or law.” In the trial court, in

the same document in which he sought summary judgment, appellee sought

sanctions on the basis that appellant’s claims were “baseless, groundless[,] and

frivolous.”   Specifically, appellee argued that he had advised appellant that

appellee was not a proper party, that appellant had “ignored” appellee’s request

to dismiss the suit, that appellee had therefore been forced to file his motion for

summary judgment, and that the filing of the motion for summary judgment

warranted a sanction against appellant in the amount of $2,000. Appellee relied

on rule of civil procedure 13 and chapters 9 and 10 of the civil practice and

remedies code to support his claim for sanctions. When the trial court granted

the sanction against appellant, it incorporated appellee’s motion for sanctions by

reference, stating,

              IT IS FURTHER ORDERED that Defendant’s motion for
       sanctions against Plaintiff is hereby granted for the reasons set forth
       therein. IT IS HEREBY ORDERED that Plaintiff is to pay a monetary
       fine in the amount of [$1,500], which reflect[s] reasonable sanctions
       for Plaintiff’s groundless and baseless pleadings filed in this lawsuit


                                         15
      pursuant to Chapters 9 and 10 of the Texas Civil Practice and
      Remedies Code and/or Rule 13 of the Texas Rules of Civil
      Procedure. [Emphasis added.]

      Rule of civil procedure 13 states that a trial court may award sanctions

against a party when the party files a pleading or motion that is groundless and

brought in bad faith or is groundless and brought for the purpose of harassment.

Tex. R. Civ. P. 13. Under rule 13, when a trial court imposes sanctions, it must

state the “particulars” of good cause for the sanctions in its order. Id. Similarly,

chapter 9 of the civil practice and remedies code precludes parties from filing

pleadings that are groundless and brought in bad faith or groundless and brought

for the purpose of harassment, and the chapter allows the trial court to award

sanctions against a party filing such a pleading. See Tex. Civ. Prac. & Rem.

Code Ann. §§ 9.011–.012(a), (c). Chapter 10 of the civil practice and remedies

code allows the filing of a motion for sanctions when a party signs and presents a

pleading for an improper purpose (such as harassment) or, after a reasonable

inquiry, asserts legal or factual contentions in a pleading that have no support to

the signatory’s best knowledge, information, and belief. Id. §§ 10.001–.002(a),

.004(a). Chapter 10 requires a court imposing sanctions to describe the conduct

that violated the chapter and to “explain the basis for the sanction imposed.” Id.

§ 10.005.

      With regard to sanctions, courts generally presume that pleadings are filed

in good faith. GTE Commc’ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 730 (Tex.

1993) (orig. proceeding); see also Tex. R. Civ. P. 13.         The party seeking


                                        16
sanctions bears the burden of overcoming this presumption of good faith.

Tanner, 856 S.W.2d at 730–31; see In re R.V., 977 S.W.2d 777, 782 (Tex.

App.—Fort Worth 1998, no pet.) (“[A] party seeking sanctions has the burden of

establishing a right to relief.”).

       Each basis for sanctions that appellee urged in the trial court focuses the

culpability of a party’s conduct upon the same time frame: the date that the party

signed and filed the pleading at issue. See Dunavin, 2008 WL 2780782, at *6

(stating that under chapter 10, courts must “examine the circumstances existing

at the time the pleading was filed, not at the time of the sanctions hearing”); see

also Tex. Civ. Prac. & Rem. Code Ann. §§ 9.011–.012 (connecting sanctions

under chapter nine to the signing of a pleading); R.M. Dudley Constr. Co., 258

S.W.3d at 711 (stating the circumstances pivotal to the determination of whether

sanctions should issue are those in existence at the time that the pleading was

signed and filed and that sanctions for frivolous or groundless pleadings “do not

apply to the pursuit of an action later determined to be groundless after pleadings

were filed”); Shaw v. Cnty. of Dallas, 251 S.W.3d 165, 170–71 (Tex. App.—

Dallas 2008, pet. denied) (“When determining whether rule 13 sanctions are

proper, the trial court must examine the circumstances existing at the time the

pleading was filed.”).

       At the time appellee filed its motion for sanctions, appellant had filed only

one pleading, its original petition, in December 2011. In the trial court, although

appellee cited rule 13 and chapters 9 and 10, he predicated his motion for


                                        17
sanctions not on appellant’s petition but on appellant’s refusal to dismiss

appellee from the suit after receiving appellee’s March 2012 letter. Specifically,

in the motion, appellee stated,

      Defendant’s counsel . . . previously advised Plaintiff that the claims
      against Defendant Mr. Merriman were baseless and groundless as
      he is not a proper party. . . . Plaintiff has ignored counsel’s request
      and forced Defendant to file this motion in order to get Mr. Merriman
      dismissed from this suit, who is obviously not a proper party as he
      had absolutely nothing to do with the motor vehicle accident in
      question. . . .

             ....

            Defendant, by and through his attorneys, had to prepare, file
      and argue this motion to the Court. This obviously cost needless
      time and money. Since Defendant Shan Merriman is obviously not
      involved in the accident in question, and since Plaintiff refused to
      dismiss Mr. Merriman from the suit, Plaintiff should be sanctioned.

Similarly, on appeal, appellee argues that the sanctions may be supported by the

facts that

      (a) Appellee had absolutely no involvement in the Accident,
      (b) Appellee notified Appellant of his mistake and gave Appellant an
      opportunity to correct it, (c) due to Appellant’s refusal to dismiss this
      suit, Appellee was forced to file the Motion for Summary Judgment,
      and (d) the sanction sought was equal to the attorney’s fees incurred
      in connection with the Motion for Summary Judgment. . . . In that
      the Motion offered evidence not simply that Appellant’s pleadings
      were incorrect, but also that Appellant took no action to correct his
      mistake after he learned of it, the Motion contained all the
      allegations . . . required in order to impose sanctions.

      Neither appellee’s motion for sanctions nor his brief on appeal contain

references to facts establishing that appellant knew or believed that he was suing

the wrong person at the time he filed his petition rather than at a later time, and



                                         18
we have found no such facts in our review of the record. Also, appellee did not

present any evidence suggesting that appellant harbored bad faith, intended to

harass appellee, or had an otherwise improper purpose in December 2011, when

he filed his petition. See Tex. Civ. Prac. & Rem. Code Ann. § 9.011; Tex. R. Civ.

P. 13. And as illustrated above, appellee premised his request for sanctions in

the trial court on a failure to adequately respond to the letter, not on a failure to

reasonably inquire about the facts contained in the petition before filing it. 12 See

Tex. Civ. Prac. & Rem. Code Ann. § 10.001(3).

      We also note that both the motion for sanctions and the affidavit of the

attorney who prepared the motion explicitly state that appellee desired sanctions

in the form of attorney’s fees resulting from the prosecution of the motion for

summary judgment and sanctions.          This suggests that appellee sought to

sanction appellant for his omission following the March 2012 letter, not his action

of signing and filing his petition.

      In summary, we hold that the trial court abused its discretion by awarding

appellee a sanction of $1,500 because the record does not establish that the trial

court identified any sanctionable conduct in its order, including the order’s

reference to appellee’s motion for sanctions. See Jones, 192 S.W.3d at 583; see


      12
        The record indicates the opposite. After the trial court signed its order
sanctioning appellant, he presented evidence that at the scene of the accident,
he had received an insurance card bearing appellee’s name. Appellant also
proved that in January 2010, appellee’s insurance carrier paid a property
damage claim for its insured, “SHAN MERRIMAN.”


                                         19
also Dunavin, 2008 WL 2780782, at *6–7; Karagounis v. Prop. Co. of Am., 970

S.W.2d 761, 764 (Tex. App.—Amarillo 1998, pet. denied) (op. on reh’g) (stating,

with regard to rule 13, that the rule says “nothing about levying sanctions if one

pursues an action or pleading thought legitimate when filed but subsequently

found baseless”).     We agree with appellant that under the circumstances

presented here, the sanctions are “without foundation in fact or law.”            We

therefore sustain appellant’s third issue, which means that we will modify the

portion of the trial court’s May 31, 2012 order awarding sanctions to appellee to

delete the award.     See Dunavin, 2008 WL 2780782, at *7; Barkhausen v.

Craycom, Inc., 178 S.W.3d 413, 423 (Tex. App.—Houston [1st Dist.] 2005, pet.

denied).

                                   Conclusion

      Having sustained appellant’s third issue, we modify the trial court’s

judgment to delete the monetary sanctions award of $1,500. Having overruled

appellant’s other two issues, we affirm the trial court’s judgment as modified.




                                             TERRIE LIVINGSTON
                                             CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and MEIER, JJ.

DELIVERED: October 31, 2013




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