      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                    NO. 03-18-00042-CV



                                 Stacey Hammer, Appellant

                                              v.


     Wayne Morgan a/k/a El Campo Real Estate, LP a/k/a The Morgan Children, Inc.
                         a/k/a Preferred Properties, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT
         NO. D-1-GN-15-000557, HONORABLE JAN SOIFER, JUDGE PRESIDING



                                         ORDER

PER CURIAM

                Appellant Stacey Hammer appealed a judgment nunc pro tunc signed on

November 6, 2017. Concluding that the trial court’s attempt to correct a purported error in a

summary-judgment order was void, we reversed the ruling of the trial court and vacated the

judgment nunc pro tunc. We now consider whether, as urged by Hammer, sanctions are appropriate

in this case.

                Hammer has moved for sanctions on the ground that the motion for judgment

nunc pro tunc was a deliberate attempt by Morgan to circumvent this Court’s March 30, 2017

opinion. See Hammer v. University Fed. Credit Union, Nos. 03-16-00262-CV, 03-16-00264-CV,

2017 WL 1228871, at *4 n.4 (Tex. App.—Austin Mar. 30, 2017, no pet.) (mem. op) (explaining that

January 12, 2016 judgment awarding sanctions against Hammer was not final judgment in case and
was void because signed after trial court’s plenary jurisdiction had expired). In response, Morgan

contends that sanctions are not appropriate in this case because he filed the motion for judgment

nunc pro tunc for the sole purpose of obtaining clarification about the effect of our opinion on the

January 12, 2016 sanctions judgment.

                We recognize that appellate courts have the power to impose sanctions on a party or

an attorney for certain actions taken in the pursuit or defense of an appeal, see Tex. R. App. P. 45

(damages for frivolous appeals in civil cases); see also Merrell Dow Pharms., Inc. v. Havner,

953 S.W.2d 706, 732 (Tex. 1997) (order on motion for reh’g) (citing Tex. Civ. Prac. & Rem. Code

§§ 10.001-.005), including the inherent power “to sanction individuals for abusing the judicial

process or to ensure an adversarial proceeding,” Westview Drive Invs., LLC v. Landmark Am. Ins.

Co., 522 S.W.3d 583, 613 (Tex. App.—Houston [14th Dist.] 2017, pet. denied). Although we are

not persuaded that Morgan’s explanation establishes good cause for the filing of his motion for

judgment nunc pro tunc in the trial court, we are not aware of any case in which an appellate court

has ordered sanctions based on filings made or actions taken in trial courts.1 Cf. Havner, 953 S.W.2d

at 732 (sanctioning attorney on appeal for disrespectful and unprofessional conduct before that

court); see Prabhakar v. Fritzgerald, No. 05-10-00126-CV, 2013 Tex. App. LEXIS 4537, at *7

(Tex. App.—Dallas Apr. 9, 2013, order) (same).


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           In addition, there are other issues relevant to Hammer’s motion for sanctions that this Court
is not equipped to resolve. For example, on appeal, counsel for Morgan acknowledges that he owed
the trial court a duty of candor and that this duty required him to inform the trial court of this Court’s
March 30, 2017 decision. See Tex. Disciplinary Rules of Prof’l Conduct R. 3.03(a), 8.04, reprinted
in Tex. Gov’t Code, tit. 2, subtit. G, app. A. Morgan’s counsel has represented to this Court that he
fulfilled his duty of candor because the trial court was made aware of this Court’s decision during
the hearing on Morgan’s motion for judgment nunc pro tunc. Neither party, however, has provided
a reporter’s record from the hearing, and counsel for Morgan has informed this Court that he has
“since learned that the nunc-pro-tunc hearing was not transcribed.”

                                                    2
              The motion for sanctions, as supplemented, is denied.

              It is ordered on September 11, 2018.


Before Chief Justice Rose, Justices Goodwin and Field




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