Opinion issued March 12, 2015




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-13-01059-CV
                           ———————————
                        TYRONE TANNER, Appellant
                                        V.
                        KATHLEEN BLACK, Appellee



                   On Appeal from the 434th District Court
                          Fort Bend County, Texas
                    Trial Court Case No. 12-DCV-198557



                                  OPINION

      Appellant Tyrone Tanner sued appellee Kathleen Black alleging various

causes of action arising out of her service as a court-appointed amicus attorney

during his earlier divorce case. He brought suit individually and as next friend of
his minor daughter. After Black filed a motion for Tanner to show authority to act

as next friend of his child, the trial court struck all of Tanner’s pleadings,

dismissed the case, and awarded Black attorney’s fees and costs of court as a

sanction.

      Because we conclude that the trial court erred by striking Tanner’s

individual pleadings and awarding sanctions, we reverse and remand.

                                    Background

      In 2008, Kathleen Black was appointed to serve as an amicus attorney by the

trial court that presided over Tyrone Tanner’s divorce, which involved questions of

conservatorship of his minor daughter. After the final divorce decree was rendered,

Tanner sued Black. In so doing Tanner acted on his own behalf, but he also

purported to sue on behalf of his daughter, in the capacity of her next friend.

      Black filed a general denial and pleaded the affirmative defense of immunity

as provided by Texas Family Code section 107.009. She counterclaimed for

sanctions alleging that Tanner’s lawsuit was “groundless and brought in bad faith

or for the sole purpose of harassment.” She also filed special exceptions. The

record includes no indication that Black sought a hearing or ruling on her special

exceptions, her immunity defense, or her sanctions motion.

      In addition, Black filed a “Motion to Show Authority,” in which she argued

that Tanner lacked authority to act as next friend of his daughter because the final



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divorce decree required the joinder of his ex-wife in legal proceedings brought on

behalf of the child. An evidentiary hearing was held on the motion to show

authority, but the appellate record does not include the divorce decree, the record

of the divorce, or any further clarifying order made by the court. Still, Tanner

acknowledged that the agreement of both parents was required by the divorce

decree to authorize a suit on behalf of the child, and that the mother had not

agreed. Thus Tanner effectively conceded that his attorney lacked authority to

proceed on behalf of the child.

      At the hearing on the motion to show authority, Black asked the trial court to

dismiss the case in its entirety. Tanner argued that his individual claims remained

viable. Black argued that all of Tanner’s claims were “derivative” of the work she

did as an amicus attorney and therefore “derivative” of the claims brought as next

friend of Tanner’s child. She also requested an award of attorney’s fees based on

her counterclaim for sanctions. The trial court heard evidence on the amount and

reasonableness of Black’s attorney’s fees. The court struck all of Tanner’s

pleadings and awarded Black $26,353.17 in attorney’s fees and costs of court.

      Tanner filed a motion for new trial, in which he argued that the court erred

by impliedly finding that he lacked standing to sue Black individually and without

the joinder of his child as a party. The motion for new trial was overruled by

operation of law, and Tanner appealed.



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                                       Analysis

        Tanner raises two issues on appeal. First he argues that the court erred by

striking all of his pleadings after granting Black’s motion to show authority.

Second he argues that the court erred by awarding Black attorney’s fees as

sanctions when she failed to prove that his lawsuit was groundless or brought in

bad faith or for the sole purpose of harassment.

   I.      Striking Tanner’s pleadings

        When a party to a lawsuit believes that the suit is being prosecuted or

defended without authority, she may file a sworn motion questioning the attorney’s

authority to act. TEX. R. CIV. P. 12. “Rule 12 has long been the exclusive method

for questioning the authority of an attorney to bring a suit.” Phillips v. Phillips, 244

S.W.3d 433, 435 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing Angelina

Cnty. v. McFarland, 374 S.W.2d 417, 423 (Tex. 1964)). Its primary purpose was to

protect defendants by enabling them to determine who had authorized the suit.

Angelina Cnty., 374 S.W.2d at 423; Phillips, 244 S.W.3d at 435. A trial court’s

ruling on a motion to show authority is not a decision on the merits or

determination of ultimate questions of fact. In re Guardianship of Benavides, 403

S.W.3d 370, 374 (Tex. App.—San Antonio 2013, pet. denied). It is simply a

pretrial determination of an attorney’s authority to represent a party. Id.




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      Upon the filing of a motion to show authority, the challenged attorney bears

the burden to “show sufficient authority to prosecute or defend the suit on behalf of

the other party.” Id. If the challenged attorney fails to show authority to act, “the

court shall . . . strike the pleadings if no person who is authorized to prosecute or

defend appears.” Id.

      We review a trial court’s ruling on a motion to show authority for an abuse

of discretion. See Benavides, 403 S.W.3d at 373–74; R.H. v. Smith, 339 S.W.3d

756, 762 (Tex. App.—Dallas 2011, no pet.); see also Urbish v. 127th Judicial Dist.

Court, 708 S.W.2d 429, 432 (Tex. 1986). A trial court abuses its discretion when it

acts without reference to any guiding rules and principles. Worford v. Stamper, 801

S.W.2d 108, 109 (Tex. 1990); McGuire v. McGuire, 4 S.W.3d 382, 384 (Tex.

App.—Houston [1st Dist.] 1999, no pet.).

      Black’s attorney filed a sworn written motion challenging the authority of

Tanner and his attorney to represent Tanner’s daughter in this case. At the hearing

on the motion to show authority, Tanner conceded that he lacked authority to

represent his daughter without joinder of his ex-wife, who was unwilling to

participate in the lawsuit, and he does not challenge the judgment to the extent the

trial court struck the pleadings filed in a purported next-friend capacity. See TEX.

R. APP. P. 12. However, the reporter’s record shows that the attorney also appeared




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on Tanner’s own behalf in his individual capacity, and the motion to show

authority did not challenge his attorney’s authority to represent him.

      At the hearing, Black argued that Tanner’s individual pleadings should be

struck because “the only claims which might have existed were all derivative of the

minor child.” She did not argue at the hearing that she was immune from suit under

section 107.009 of the Family Code.

      On appeal, Black argues that Tanner had no right to sue her because she had

immunity. Section 107.009 provides that “an amicus attorney” appointed to assist

the court is immune from liability for civil damages “arising from an action taken,

a recommendation made, or an opinion given in the capacity of . . . amicus

attorney.” TEX. FAM. CODE § 107.009(a). However, this statutory grant of

immunity is not absolute; an exception to immunity exists for a recommendation

made or an 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). Immunity under section 107.009 is an

affirmative defense. See TEX. R. CIV. P. 94; Zeifman v. Nowlin, 322 S.W.3d 804,

808 (Tex. App.—Austin 2010, no pet.); Kabbani v. Papadopolous, No. 01-07-

00191-CV, 2009 WL 469546, at *2–4 (Tex. App.—Houston [1st Dist.] Feb. 26,

2009, pet. denied) (mem. op.). A defendant raising an affirmative defense must

plead and prove all elements of the affirmative defense in order to be entitled to



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judgment in his favor. See, e.g., McIntyre v. Ramirez, 109 S.W.3d 741, 748 (Tex.

2003); Vu v. ExxonMobil Corp., 98 S.W.3d 318, 320–21 (Tex. App.—Houston [1st

Dist.] 2003, pet. denied).

      Black’s reliance on Zeifman v. Nowlin, 322 S.W.3d 804 (Tex. App.—Austin

2010, no pet.), and Kabbani v. Papadopolous, No. 01-07-00191-CV, 2009 WL

469546 (Tex. App.—Houston [1st Dist.] Feb. 26, 2009, pet. denied) (mem. op.),

for the proposition that the trial court properly struck Tanner’s individual pleadings

is misplaced. Both Zeifman and Kabbani were summary-judgment cases. Zeifman,

322 S.W.3d at 807; Kabbani, 2009 WL 469546, at *1. In both Zeifman and

Kabbani, the amicus attorney offered summary-judgment evidence that

conclusively proved that section 107.009 applied. Zeifman, 322 S.W.3d at 808;

Kabbani, 2009 WL 469546, at *6. In Zeifman, the nonmovant failed to present

evidence creating a question of fact about an exception to immunity. Zeifman, 322

S.W.3d at 808. In Kabbani, the nonmovant failed to produce summary-judgment

evidence raising “a triable issue of fact on at least one element of the immunity

defense.” Kabbani, 2009 WL 469546, at *6.

      Unlike Zeifman and Kabbani, no motion for summary judgment or other

merits-based motion to dismiss was filed in this case. Tanner’s petition alleges that

Black acted in bad faith, which is an exception to immunity. But because Black did

not file a motion for summary judgment, Tanner had no reason or procedural



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opportunity to adduce evidence raising a question of fact about an exception to

immunity.

         The motion before the trial court was a motion to show authority, which

made no allegations as to Tanner’s attorney’s authority to represent him

individually. The record shows that Tanner’s attorney appeared on his behalf and

that Tanner authorized his attorney to file suit against Black. See Angelina Cnty.,

374 S.W.2d at 423; Phillips, 244 S.W.3d at 435. Any question about the merits of

the causes of action Tanner pleaded was not properly before the court on this

motion to show authority. See Benavides, 403 S.W.3d at 374. Although Black filed

special exceptions that attacked the adequacy of Tanner’s pleading in numerous

respects, the appellate record contains no indication that the special exceptions

ever were set for a hearing or that they were discussed at the oral hearing on the

motion to show authority. Because no legal basis for striking Tanner’s individual

pleadings was presented to the trial court, we hold that the court erred by striking

all of Tanner’s pleadings rather than only the pleadings filed on behalf of his

daughter. We sustain Tanner’s first issue.

   II.      Attorney’s fees as sanctions

         In his second issue, Tanner argues that the trial court erred by awarding

attorney’s fees to Black as a sanction without finding that his suit was groundless

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



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      We review a trial court’s imposition of sanctions under an abuse of

discretion standard of review. Nath v. Tex. Children’s Hosp., 446 S.W.3d 355, 361

(Tex. 2014). Generally, courts presume pleadings are filed in good faith. Id. The

party seeking sanctions must therefore overcome this presumption of good faith.

Id.

      Because Black’s counterclaim for sanctions alleged that Tanner’s suit was

groundless and brought in bad faith or for the purpose of harassment, both Rule 13

of the Texas Rules of Civil Procedure and Chapter 10 of the Texas Civil Practice

and Remedies Code are applicable to this case. Rule 13 provides for sanctions for

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

for the purpose of harassment.” TEX. R. CIV. P. 13; see Nath, 446 S.W.3d at 361.

Chapter 10 authorizes sanctions for “pleadings filed with an improper purpose or

that lack legal or factual support.” Nath, 446 S.W.3d at 362; TEX. CIV. PRAC. &

REM. CODE § 10.001. Both Rule 13 and Chapter 10 require that the sanctions order

state a reason for the sanction. TEX. R. CIV. P. 13; TEX. CIV. PRAC. & REM. CODE

§ 10.005. Rule 13 requires that the sanction be based on “good cause, the

particulars of which must be stated in the sanction order,” TEX. R. CIV. P. 13, and

Chapter 10 requires that the order describe the sanctionable conduct and “explain

the basis for the sanction imposed.” TEX. CIV. PRAC. & REM. CODE § 10.005.

Failure to state the particulars of good cause in a Rule 13 sanction order is an abuse



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of discretion. Gomer v. Davis, 419 S.W.3d 470, 478 (Tex. App.—Houston [1st

Dist.] 2013, no pet.); Robson v. Gilbreath, 267 S.W.3d 401, 407 (Tex. App.—

Austin 2008, pet. denied).

      However, when the party against whom sanctions are imposed fails to object

to the form of the sanctions order, he waives any objection to the lack of

particularity in the order. Gomer, 419 S.W.3d at 478; Robson, 267 S.W.3d at 407.

In that circumstance, we review the record for evidence of an implied finding that

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

See Gomer, 419 S.W.3d at 478; Robson, 267 S.W.3d at 407. Similarly, sanctions

imposed under Chapter 10 must be supported by evidence adduced at a hearing

that supports a trial court’s determinations “about the party’s or the attorney’s

motives and credibility.” Gomer, 419 S.W.3d at 480.

      At the hearing on the motion to show authority, Black argued that her

counterclaim for sanctions supported an award of attorney’s fees. Her attorney

testified about the amount and reasonableness of his fees. The order that awarded

attorney’s fees does not state on its face that it is a sanctions order. It grants the

motion to show authority, strikes Tanner’s pleadings, dismisses his case, and states

that Black is “entitled to recover her reasonable and necessary attorney’s fees and

costs incurred as a result of her defense of this action.” No particulars are recited

about any sanctionable conduct, bad faith, harassment, or good cause. Tanner did



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not object to the form of the order, nor did he challenge it in his motion for new

trial. Therefore, to the extent that Tanner’s appellate issue challenges the form of

the sanctions order, it is waived. See id. at 478; Robson, 267 S.W.3d at 407.

      However, Tanner argues that Black “failed to carry her burden of

overcoming a ‘presumption of good faith’ as it relates” to his pleading. We

construe this to be an argument about the evidentiary support for a trial court

sanctions order. See TEX. R. APP. P. 38.1; Perry v. Cohen, 272 S.W.3d 585, 588

(Tex. 2008) (appellate briefs to be construed reasonably, yet liberally, and

appellate courts should reach merits of appeal whenever reasonably possible). We

agree that there is no evidentiary support in this record for a sanctions order under

Rule 13 or Chapter 10. The record from the hearing on the motion to show

authority includes no mention of sanctions and no testimony about conduct that

could be sanctionable under Rule 13 or Chapter 10. Because there is no evidentiary

support for a sanction in this record—and no other legal basis was advanced for

awarding attorney’s fees—we hold that the trial court erred by ordering Tanner to

pay Black’s attorney’s fees. See Worford, 801 S.W.2d at 109. We sustain Tanner’s

second issue.




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                                    Conclusion

      We reverse the trial court’s order striking Tanner’s individual pleadings and

ordering him to pay Black’s attorney’s fees. We remand this case to the trial court

for further proceedings consistent with this opinion.




                                              Michael Massengale
                                              Justice

Panel consists of Justices Keyes, Bland, and Massengale.




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