AFFIRM; and Opinion Filed November 30, 2018.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-17-00587-CV

          WYDE AND ASSOCIATES, LLC, AND DAN L. WYDE, Appellants
                                  V.
        JAMES E. FRANCESCONI AND TATIANNA FRANCESCONI, Appellees

                      On Appeal from the 469th Judicial District Court
                                   Collin County, Texas
                          Trial Court Cause No. 469-50787-2014

                             MEMORANDUM OPINION
                        Before Justices Lang-Miers, Fillmore, and Myers
                                 Opinion by Justice Lang-Miers
       After a hearing, the trial court granted appellee James E. Francesconi’s plea to the

jurisdiction, denied appellant Dan L. Wyde’s motion for enforcement of a final decree of divorce,

and assessed sanctions against Wyde. Wyde and Associates, LLC and Dan L. Wyde (together,

“Wyde”) appeal, arguing in three issues that the trial court abused its discretion in making these

rulings. We conclude the trial court did not abuse its discretion. Accordingly, we affirm.

                                          BACKGROUND

       Wyde represented appellee Tatianna Francesconi (“Wife”) in her divorce from appellee

James E. Francesconi (“Husband”). The case proceeded to a non-jury trial on the merits before the

199th Judicial District Court of Collin County. On July 30, 2015, the trial court made oral rulings

on the record, including the following:
       On the attorney’s fees, I have [Wife]’s right at $40,000 and [Husband] right at
       $57,000. And before you guys got to me, you were in the 429th. Was there any type
       of interim support ordered as it related to attorney’s fees? I’m sorry. Interim
       attorney’s fees ordered?

       MR. WYDE: No, Your Honor.

       ....

       On the attorney’s fees, . . . [Wife] will be responsible for half of her fees, and
       [Husband] will be responsible for the other half, noting that [Husband] will have to
       —Mr. Wyde will have to work out payments so that [Husband] can still make sure
       he’s meeting his obligations to the children first and foremost . . . . So, to pay it out.

       The trial court rendered a decree of divorce on November 10, 2015. The decree provided

that Husband “shall pay 50% of [Wife’s] attorney’s fees,” and awarded Wyde a judgment against

Husband, but left blank the amount of the judgment:

       Attorney’s Fees

       IT IS FURTHER ORDERED AND DECREED that Husband James Francesconi
       shall pay 50% of wife Tatianna’s attorney’s fees. The Court finds that Tatianna has
       incurred reasonable and necessary attorney’s fees in the amount of
       ________________, and that 50% of this amount is _______________________.
       The court finds that the balance of at least 50% of the total fees remains unpaid by
       wife Tatianna Francesconi. Therefore, wife’s attorney Dan Wyde & Associates,
       L.L.C. is awarded a judgment against husband James Francesconi in the amount of
       _________________, and James Francesconi is ordered to pay that amount directly
       to Dan Wyde and Associates, L.L.C., 10100 N. Central Expressway, Suite 590,
       Dallas TX 75231 (214) 521-9100, in installments of __________________ per
       month, due on the 1st of each month, until paid in full.

The decree also provided, “all relief requested in this case and not expressly granted is denied.

This is a final judgment, for which let execution and all writs and processes necessary to enforce

this judgment issue. This judgment finally disposes of all claims and all parties and is appealable.”

       The November 10, 2015 judgment was not appealed by Husband, Wife, or Wyde within

the time periods set forth under the applicable rules. See TEX. R. APP. P. 26 (time to perfect appeal).

       On January 18, 2016, Husband and Wife signed a written agreement “to resolve all pending

matters” between them (“Rule 11 agreement”). Husband and Wife agreed to “waive any rights to

file and agree not to file any motion for New Trial, Notice of Appeal and any form of any Bill of
                                               –2–
Review in this case.” Regarding Wyde’s fees, Husband and Wife agreed that Husband “is

responsible for half of the debt owed to attorney Dan Wyde totaling $40,000. This will be paid in

bi-monthly payments of $200 each totaling $400 per month.” Husband and Wife also agreed that

Wife “shall be responsible for the remaining balance of attorney fees that are presently due and

owing to Wyde & Associates in relation to this matter.”

           On January 26, 2016, Wyde filed a petition for mandamus requesting that, among other

relief, this Court order the trial court to vacate the divorce decree and conduct a hearing on the

amount of attorney’s fees to be awarded him. We denied Wyde’s petition on February 9, 2016,

concluding that Wyde “has not demonstrated that he is entitled to relief.” In re Dan L. Wyde, No.

05-16-00083-CV, 2016 WL 519633, at *1 (Tex. App.—Dallas Feb. 9, 2016, orig. proceeding)

(mem. op).

           On April 25, 2016, Wyde filed a notice of appeal of the November 10, 2015 decree.

Husband and Wife moved to dismiss the appeal for want of jurisdiction, arguing that Wyde’s notice

of appeal was untimely. On May 25, 2016, this Court dismissed Wyde’s appeal for lack of

jurisdiction, explaining:

           Here, the trial court signed the final divorce decree November 10, 2015. Assuming
           no post-judgment orders were filed, the notice of appeal was due December 10,
           2015. Even if a timely post-judgment order had been filed and extended the
           appellate timetable, the time for filing the notice of appeal would have been
           extended to February 8, 2016. Wyde, however, filed his notice of appeal April 25,
           2016. Because he filed his notice of appeal outside the time provided by the rules
           of appellate procedure, we conclude we lack jurisdiction over this appeal. See TEX.
           R. APP. P. 25.1(b).

Wyde v. Francesconi, No. 05-16-00499-CV, 2016 WL 3007090, at *1 (Tex. App.—Dallas May

25, 2016, no pet.) (mem. op.).1




      1
        Wyde also sued Wife alleging that she breached a contract to pay him attorney’s fees for representing her in the divorce. An appeal of that
case is also pending in this Court, styled Dan Wyde & Associates, LLC, and Dan L. Wyde, Individually, Appellants v. Tatianna Francesconi,
Appellee, No. 05-17-01333-CV.

                                                                      –3–
       On March 15, 2017, Wyde filed a motion to enforce the provisions of the divorce decree

regarding his fees. He filed the motion in the 469th District Court because the case was transferred

there by administrative order effective September 1, 2015, although trial proceeded in, and

judgment was rendered by, the 199th Judicial District Court where the Francesconis’ divorce was

originally filed. Wyde obtained a court order requiring Husband to appear at a hearing on the

motion to enforce.

       Husband and Wife each filed an answer to Wyde’s motion to enforce. Husband’s answer

included a plea to the jurisdiction asserting that Wyde lacked standing to enforce the decree.

Husband also pleaded that Wyde’s claim was barred by res judicata, and that the trial court lacked

plenary power to review, interpret, or change its judgment. Husband’s answer also contained a

general denial, affirmative defenses, and special exceptions. Husband also sought sanctions and

attorney’s fees, alleging that Wyde’s motion was “frivolous, groundless, lacks an appropriate legal

basis, and is filed for the purpose of harassment” in violation of civil practice and remedies code

sections 9.011 and 10.001 and rule of civil procedure 13. See TEX. CIV. PRAC. & REM. CODE ANN.

§§ 9.011, 10.001; TEX. R. CIV. P. 13.

       The trial court held a hearing on April 26, 2017, the day after Husband filed and served his

answer, plea to the jurisdiction, and motion for sanctions. Wyde did not seek a continuance of the

hearing. Husband appeared at the hearing in compliance with the court order obtained by Wyde.

The court heard arguments on Husband’s plea to the jurisdiction, granted the plea, and proceeded

to hear testimony and argument on Husband’s request for sanctions. Husband’s and Wife’s counsel

both testified to the attorney’s fees incurred for their representation relating to Wyde’s motion to

enforce. Husband, a neurologist and neurohospitalist, testified that he appeared in compliance with

the court’s order, was required to make arrangements for other physicians to cover his rounds at

three different hospitals, and lost $2,700 in wages for doing so.

                                                –4–
       Wyde then testified, making an offer of proof “showing the good faith nature of every

lawful attempt that this firm has made to collect the more than eighty thousand dollars that we

have lawfully billed and that Judge Tucker recognized that we were entitled to the fifty percent of

in her oral rendition.” The court responded, “I understand and I’ve already heard this issue.”

Wyde’s exchange with the court continued:

       MR. WYDE: No, I don’t believe the record’s clear right now and I’m asking for an
       opportunity to clarify this record because it’s going to be appealed, and if you deny
       me the opportunity to make a full record—.”

       THE COURT: I’m not denying you the opportunity.

       MR. WYDE: Then let me finish my narrative.

       THE COURT: Okay. Do not tell me to let you finish.

       MR. WYDE: I—

       THE COURT: Hold on. Do not interrupt me.

       MR. WYDE: —asked you to let me finish.

       THE COURT: Do not interrupt me. At this point you are becoming disruptive.

       MR. WYDE: I disagree.

       ....

       MR. WYDE: And I object to you not allowing me to develop the record—

       THE COURT: Thank you.

       MR. WYDE:—on issues that are relevant.

       THE COURT: I have not disallowed you. I have given you the opportunity to make
       an offer of proof and I am allowing you to make a record at this point. What I’m
       asking is that you not interrupt me.

       MR. WYDE: I was testifying in the narrative when they objected after you said I
       could already testify in the narrative.

       THE COURT: I understand, but again, many of these issues have already been
       litigated. This case—

       MR. WYDE: I disagree with the Court.


                                               –5–
       THE COURT: —has already been up on appeal twice. If you would, please
       proceed—

       MR. WYDE: Yes.

       THE COURT: —with your testimony. Go ahead.

       Wyde then continued with his offer of proof, testifying that “[w]e were precluded and

denied due process to get back into court for the next two and a half months,” attributing the

problem to “court logistics,” the transfer of the case from the 199th Judicial District Court to the

new 469th Judicial District Court, and opposing counsel’s unavailability. Wyde also testified that

there was “no evidence that Judge Tucker actually reviewed the judgment,” stating that “[f]or all

we know, it could have been stamped by the court coordinator who obviously has access to a

judge’s stamp.”

       Wyde also testified to problems scheduling a hearing on a pending motion he had filed on

Wife’s behalf requesting sanctions against Husband for violations of the Stored Electronic

Communications Act, culminating in the Rule 11 agreement that “was basically proffered and

orchestrated by” Husband’s counsel, who used “sleazy lawyer tactics” to have Husband “conspire

around me . . . to avoid a hearing that was scheduled twelve hours later for sanctions.” He

concluded:

       Now, you think I should be paying them for this? Is that what the Court’s going to
       rule? Okay. Because every time I’ve come to Court, all I’ve heard from the
       opposing counsel is you can’t do this. You can’t do that. And yet we wouldn’t have
       even been here had her partner not proffered a—what is clearly a material
       misrepresentation to this court—

       THE COURT: All right. Your time has expired at this point. I’m going to go ahead
       and ask—

       Hold on. Hold on. You still need to be passed.

       And questions of this witness, Ms. O’Neil or Mr. Rowe?

       MR. ROWE: I have no questions, Your Honor.

       MS. O’NEIL: No questions, Your Honor.
                                                –6–
           THE COURT: All right. You may step down. Thank you, Mr. Wyde.

           MR. WYDE: Smartest thing you’ve said all day.2

           The trial court found that Wyde’s motion to enforce was filed in bad faith, explaining “I

believe this matter has been litigated several times before and make the finding [of bad faith] based

on that.” But the court took the question whether the motion was filed for purposes of harassment

under advisement, permitting the parties to file further briefing if they chose to do so. On May 1,

2017, Wyde filed a brief in response to Husband’s motion for sanctions and attorney’s fees. He

complained of a lack of due process and argued that his motion to enforce was filed in good faith.

           On May 24, 2017, the trial court signed an order granting Husband’s plea to the jurisdiction

and denying Wyde’s motion for enforcement. The trial court found that Wyde’s motion for

enforcement was groundless and brought in bad faith and for the purposes of harassment under

rule 13, Texas Rules of Civil Procedure. The court found that Wyde had notice of the April 26,

2017 hearing and proceeded without requesting a continuance. The court also found that Wyde

caused Husband “to appear in court frivolously, in bad faith, and for the purposes of harassment

under Rule 13 of the TEXAS RULES OF CIVIL PROCEDURE, causing [Husband] to miss work and lose

income.”

           The trial court awarded Husband a judgment in the amount of $1,350.00 against Wyde,

and awarded Husband’s attorneys, the firm of O’Neil Wysocki, P.C., judgment in the amount of

$7,000.00. The trial court also awarded Pete Rowe, Wife’s subsequent counsel, judgment against

Wyde in the amount of $500.00. This appeal followed.




     2
       When asked to explain, Wyde said, “I said to myself that that’s the smartest thing that the two attorneys have said all day.” The trial court
requested that he “refrain from the sidebar,” which Wyde promised to do.

                                                                       –7–
                                      STANDARDS OF REVIEW

       We review a trial court’s ruling on a post-divorce motion for enforcement or clarification

of a divorce decree for abuse of discretion. DeGroot v. DeGroot, 369 S.W.3d 918, 921 (Tex.

App.—Dallas 2012, no pet.). We also review a trial court’s sanction order for abuse of discretion.

Bradt v. Sebek, 14 S.W.3d 756, 760–61 (Tex. App.—Houston [1st Dist.] 2000, pet. denied). A trial

court abuses its discretion in imposing sanctions only if it based its order on an erroneous view of

the law or a clearly erroneous assessment of the evidence. Elkins v. Stotts-Brown, 103 S.W.3d 664,

667 (Tex. App.—Dallas 2003, no pet.).

                                             DISCUSSION

       In three issues, Wyde complains (1) the trial court abused its discretion by denying his

motion for enforcement of the divorce decree; (2) Husband and Wife failed to meet their burdens

of proof to establish that Wyde’s claims were filed without reasonable inquiry and not in good

faith; and (3) the trial court abused its discretion by failing to conduct an evidentiary hearing if it

found that the decree was not sufficiently clear.

1. Motion for enforcement under family code Chapter 9

       Wyde filed this proceeding as a suit to enforce a final decree of divorce under family code

Chapter 9. See TEX. FAM. CODE ANN. Chapter 9 (Post-Decree Proceedings), subch. A (suit to

enforce decree). Family code section 9.001(a) provides that a party affected by the property

division in a divorce decree, “including a division of property and any contractual provisions under

the terms of an agreement incident to divorce . . . that was approved by the court, may request

enforcement of that decree by filing a suit to enforce . . . in the court that rendered the decree.”

TEX. FAM. CODE ANN. § 9.001(a). Wyde argues the trial court should have granted his motion to

enforce under section 9.001.




                                                 –8–
       Wyde relies on the trial court’s rulings after the bench trial of Husband’s and Wife’s

divorce, citing (1) the trial court’s oral ruling that Husband “will be responsible for” half of Wife’s

attorney’s fees, (2) the trial court’s statement that “[o]n the attorney’s fees, I have [Wife’s] right

at $40,000,” and (3) the decree’s provision that Husband “shall pay 50% of [Wife’s] attorney’s

fees.” Wyde also argues that the trial court had jurisdiction over his suit under section 9.001; that

Husband waived his objections to an award of attorney’s fees to Wyde; and that the blank space

in the judgment was not equivalent to an award of zero attorney’s fees.

       Husband responds that Wyde lacked standing to request enforcement of the divorce decree

under family code Chapter 9. Husband relies on section 9.001(a) and on the supreme court’s

opinion in Brown v. Fullenweider, 52 S.W.3d 169, 170–71 (Tex. 2001) (per curiam). In Brown,

the court concluded that an attorney’s claim against his client for fees was not an issue related to

the division of a marital estate. Id. The court explained that the “obvious purpose” of family code

Chapter 9 “was to provide an expeditious procedure for enforcing and clarifying property divisions

in divorce decrees.” Id. None of the provisions of Chapter 9 “contemplates that such proceedings

would involve any issues other than those related to the division of a marital estate.” Id. at 171.

The court concluded, “[a]n attorney’s claim against his client for fees is not such an issue,”

reasoning that “[i]t is wholly implausible that the Legislature intended to deny an attorney and

client the right to trial by jury in a dispute over fees related to a divorce proceeding.” Id. at 171.

Consequently, section 9.001 did not apply to the attorney’s claim. Id.

       Here, as in Brown, Wyde’s claim for attorney’s fees is not related to the division of

Husband’s and Wife’s marital estate. See id. And as in Brown, Wyde’s motion “was filed long

after the trial court’s plenary jurisdiction over” the divorce case had terminated. Id. at 171.

Consequently, under Brown, Wyde’s motion to enforce the divorce decree was “outside the trial

court’s jurisdiction.” Id. at 170. We conclude that Wyde lacked standing to file a suit under Chapter

                                                 –9–
9, and the trial court did not err by granting Husband’s plea to the jurisdiction. See id. We decide

Wyde’s first issue against him.3

           In his third issue Wyde argues in the alternative that trial court abused its discretion by

failing to conduct an evidentiary hearing to clarify the final divorce decree. He relies on family

code sections 9.006 through 9.014 to support his argument, contending that under those sections,

the trial court had the power to render a clarifying order to conform the decree to its oral rendition

or to enforce the terms of the Rule 11 agreement. For the reasons we have discussed, Wyde lacked

standing to file suit under Chapter 9 of the family code, and consequently, lacked standing to obtain

relief under family code sections 9.001 through 9.014. See Brown, 52 S.W.3d at 170–71. We

decide Wyde’s third issue against him.

2. Sanctions

           The trial court imposed sanctions under rule of civil procedure 13. Rule 13 provides that

an attorney’s signature “constitute[s] a certificate by them that they have read the pleading, motion,

or other paper; that to the best of their knowledge, information, and belief formed after reasonable

inquiry the instrument is not groundless and brought in bad faith or groundless and brought for the

purpose of harassment.” TEX. R. CIV. P. 13. A pleading is groundless if it has “no basis in law or

fact and not warranted by good-faith argument for the extension, modification, or reversal of

existing law.” Id. Rule 13 further provides that if a pleading is signed in violation of the rule, the

court after notice and hearing shall impose “an appropriate sanction” available under rule 215.2(b)

upon the person who signed the pleading. Id.

           We presume that pleadings are filed in good faith. Id. The party seeking sanctions bears

the burden to overcome this presumption. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007). But



      3
        Because we conclude that Wyde lacked standing under Chapter 9, we need not address Husband’s alternative argument that “there is nothing
to enforce” because the trial court left blank spaces in the decree. See TEX. R. APP. P. 47.1 (court of appeals must hand down written opinion that
is “as brief as practicable but that addresses every issue raised and necessary to final disposition of appeal”).

                                                                     –10–
direct evidence of a sanctioned person’s subjective intent is not required to rebut the presumption.

Owen v. Jim Allee Imports, Inc., 380 S.W.3d 276, 289–90 (Tex. App.—Dallas 2012, no pet.).

Intent may be shown by circumstantial evidence as well. Id. When determining whether rule 13

sanctions are proper, the trial court must examine the circumstances existing when the litigant filed

the pleading. In re Lewis, No. 05-08-01541-CV, 2010 WL 177817, at *3 (Tex. App.—Dallas Jan.

20, 2010, no pet.) (mem. op.). In addition, the trial court is entitled to consider the entire history

of the case before it. Id.

        Wyde contends that the “primary purpose” for his Chapter 9 motion to enforce “was to be

afforded an opportunity to correct an erroneously signed Final Decree of Divorce by the 199th

District Court.” He argues that his motion “was based on an express oral rendition of a ruling by

Judge Tucker and a Rule 11 Agreement entered into by [Husband and Wife], therefore, [Wyde]

showed good faith and a legal basis to bring [his] motion.” But the record also reflects that

(1) Wyde did not timely seek available relief, such as a motion for new trial or a timely appeal of

the trial court’s judgment; (2) the trial court denied Wyde’s previous motions to recover the same

fees; and (3) Wyde unsuccessfully sought mandamus arising from the same alleged errors. And

the trial court heard Wyde’s testimony and argument, afforded Wyde the opportunity to file a brief

on the subject, and ruled only after Wyde’s brief had been on file for over three weeks. Under an

abuse of discretion standard, the trial court judges the credibility of witnesses and may resolve

conflicting testimony. Owen, 380 S.W.3d at 290. Based on the record before us, we conclude that

the trial court did not base its order on an erroneous view of the law or a clearly erroneous

assessment of the evidence. See Elkins, 103 S.W.3d at 667. Consequently, the trial court did not

abuse its discretion in concluding Wyde filed the motion in bad faith and for the purposes of

harassment. See Owen, 380 S.W.3d at 290. We decide Wyde’s second issue against him.




                                                –11–
3. Request for appellate sanctions

       In his appellate brief under his “Issue 6,” Husband argues that Wyde’s appeal “is frivolous

and should be sanctioned,” relying on rule of appellate procedure 45. Rule 45 provides:

       If the court of appeals determines that an appeal is frivolous, it may—on motion of
       any party or on its own initiative, after notice and a reasonable opportunity for
       response—award each prevailing party just damages. In determining whether to
       award damages, the court must not consider any matter that does not appear in the
       record, briefs, or other papers filed in the court of appeals.

TEX. R. APP. P. 45. Husband requested the Court “to consider the lack of merit to the underlying

case as well as this appeal and grant just damages.” Wyde responded in his reply brief that his

appeal was not frivolous because “Appellants have a good faith basis for bringing the appeal as

evidenced in the original brief and this reply brief.”

       After submission of this case by oral argument, Husband filed a “post-submission

supplemental brief” attaching the affidavit of his attorney testifying to the fees charged Husband

for this appeal. Wyde has filed a response. After a review of the record, briefing, and other papers

filed in this Court, we deny Husband’s request for damages under rule 45. See TEX. R. APP. P. 45;

Woods v. Kenner, 501 S.W.3d 185, 199 (Tex. App.—Houston [1st Dist.] 2016, no pet.).

       “An appeal is frivolous when the record, viewed from the perspective of the advocate, does

not provide reasonable grounds for the advocate to believe that the case could be reversed.” Owen,

380 S.W.3d at 290. “The decision to grant appellate sanctions is a matter of discretion that an

appellate court exercises with prudence and caution and only after careful deliberation.” Id. Rule

45 “does not require the Court to award just damages in every case in which an appeal is frivolous,”

see Woods, 501 S.W.3d at 198, and we decline to do so here.




                                                –12–
                                        CONCLUSION

       We affirm the trial court’s grant of Husband’s plea to the jurisdiction and its award of

sanctions against Wyde in its May 24, 2017 Order.




                                                /Elizabeth Lang-Miers/
                                                ELIZABETH LANG-MIERS
                                                JUSTICE



170587F.P05




                                            –13–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 WYDE AND ASSOCIATES, LLC, AND                       On Appeal from the 469th Judicial District
 DAN L. WYDE, Appellants                             Court, Collin County, Texas
                                                     Trial Court Cause No. 469-50787-2014.
 No. 05-17-00587-CV         V.                       Opinion delivered by Justice Lang-Miers;
                                                     Justices Fillmore and Myers, participating.
 JAMES E. FRANCESCONI AND
 TATIANNA FRANCESCONI, Appellees

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

        It is ORDERED that appellees James E. Francesconi and Tatianna Francesconi recover
their costs of this appeal and the full amount of the trial court’s judgment from appellants Wyde
and Associates, LLC, and Dan L. Wyde and from Act Quick Bail Bonds as surety on appellants’
appeal bond.


Judgment entered this 30th day of November, 2018.




                                              –14–
