Majority and Dissenting Opinions of May 16, 2019 Withdrawn; Affirmed in
Part, Reversed in Part and Remanded; Motion to Strike Denied; Motion for
En Banc Reconsideration Denied as Moot; and Majority and Dissenting
Opinions filed July 30, 2019.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-17-00938-CV

               IN THE INTEREST OF D.Z., A MINOR CHILD


                    On Appeal from the 245th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2010-45577

                            DISSENTING OPINION

      I respectfully dissent. The trial judge did not award sanctions under Rule 13.
The judge awarded attorneys’ fees instead, and that award should be reversed and
rendered because there is no evidence that the fees were reasonable and necessary.
I also write to discuss the scope of the remand. Upon remand, the new judge of the
245th District Court will need to consider new evidence and the record to
determine the factors set out in Low v. Henry, 221 S.W.3d 609, 620 n.5 (Tex.
2007), in order to determine the amount of reasonable fees to award, if any.
A.    No Award of Sanctions

      I conclude that the judge did not award sanctions under Rule 13 for the
following reasons:

      1.    There is no pleading for Rule 13 sanctions.

      Three times during the course of the litigation, Mother requested sanctions
for discovery abuse. Twice, the trial court ordered the discovery to go forward but
did not award sanctions. Mother requested sanctions for filing a groundless and
frivolous motion for continuance. The trial court granted a short continuance and
did not award sanctions.

      On October 24, 2017, Mother filed another objection and response to
Father’s second request for continuance. The objection focused on the numerous
discovery issues in the case and the changing attorneys representing Father. It is
this motion that the majority contends supports a claim for Rule 13 sanctions.

      The motion states:

      The court must consider any potential prejudice to the opposing side if
      the continuance is granted. Granting continuance will be extremely
      unfair to [Mother] and harms the best interest of the child. This
      frivolous lawsuit and [Father’s] violations of discovery rules caused
      [Mother] $40,000 financial damages. Especially, this lawsuit
      prevented [Father] from paying his obligated child support for more
      than two years. The child currently needs sufficient financial support
      to maintain his high quality of life.

      The motion never asked for an award of money for filing a frivolous lawsuit,
nor did it mention Rule 13. It did not allege that the lawsuit was groundless and
either brought in bad faith or for the purpose of harassment. The motion asked the
trial court to deny the continuance or alternatively to enter temporary orders



                                         2
increasing the amount of child support and to pay her $5,000 for violations of
discovery rules.

      I do not consider this motion a request for sanctions under Rule 13.

      2.     Rule 13 was never mentioned in the trial.

      Mother did present some limited testimony as to the frivolous nature of the
Father’s claims. But she presented no evidence that, at the time that Father filed the
pleading, he knew the pleading was groundless and that it was brought in bad faith
or for the purposes of harassment. See Mattly v. Spiegel, Inc., 19 S.W.3d 890, 896
(Tex. App.—Houston [14th Dist.] 2000, no pet.) (“The trial court must examine
the circumstances existing when the litigant filed the pleadings to determine
whether rule 13 sanctions are proper.”).

      3.     When the trial court orally rendered judgment at the end of the
             trial, the court did not mention sanctions or Rule 13, nor did it
             make the necessary findings to support sanctions.
      At the rendition of judgment, the court found a material change in
circumstances and granted the modification in part and denied it in part. The court
increased Father’s child support obligation for the future and awarded a retroactive
child support judgment for a period of 25 months. The court also ordered Father to
provide health insurance for the child.

      The court then said, “The court finds good cause to award attorneys’ fees
and amicus fees in this case.” The court allocated the amicus fees 75% to the
Father. The court then said, “The court additionally finds good cause to award
partial attorneys’ fees to the young lady in the amount of $10,000. Therefore the
young lady is awarded judgment against the gentleman in the amount of $10,000
for which let execution issue.” As to the amicus allocation, the court said, “The
court believes based on the facts and circumstances in this case and the conduct of

                                           3
the parties is that the gentleman should be responsible for 75 percent of the amicus
fees.”

         At no time did the trial court make the necessary findings to support a Rule
13 sanction.

         4.    The final judgment does not mention Rule 13 sanctions.

         Rule 13 requires: “No sanctions under this rule may be imposed except for
good cause, the particulars of which must be stated in the sanctions order.” The
final judgment does not reference sanctions at all. It provides solely that the court
finds good cause to award Mother attorneys’ fees.

         While it is correct, as the majority notes, that this deficiency can be waived
by a failure to object in the trial court, that is immaterial. I cite this evidence to
establish that the trial court did not award sanctions at all. He merely ordered
attorneys’ fees to be awarded to the Mother.

         The majority relies upon the words “good cause”1 to turn a garden variety
attorneys’ fees award into a sanctions award. Given the scrutiny that our courts
apply to sanction awards, I find reliance on that to be unwarranted.

B.       Scope of Remand

         I agree with the majority that the Supreme Court abrogated our court’s
precedent and that a remand in the interest of justice would be appropriate given
the change in the law if the trial judge had actually awarded sanctions. See Nath v.
Texas Children’s Hosp., — S.W.3d —, 2019 WL 2553538, at *2–3 (Tex. June 21,
2019) (per curiam).

         1
         Good cause is not a requirement for the award of attorneys’ fees under section 106.002
of the Family Code but this judge could have thought so as many older family law cases, relying
on other versions of the statute, required a finding of good cause. See Coburn v. Moreland, 433
S.W.3d 809, 838–40 (Tex. App.—Austin 2014, no pet.).

                                              4
      Sanctions must fit the wrong and in order to determine a reasonable amount
of sanctions, if any, the trial judge must determine whether the fees “resulted from
or were caused by the sanctionable conduct.” Id. at *2. The trial judge must
consider the factors outlined in Low v. Henry, supra, including taking supplemental
evidence as to those factors and reviewing the trial record. The court outlined the
following non-exclusive factors that a trial judge should consider in awarding the
amount of the sanctions:

      a. the good faith or bad faith of the offender;
      b. the degree of willfulness, vindictiveness,             negligence,   or
      frivolousness involved in the offense;
      c. the knowledge, experience, and expertise of the offender;
      d. any prior history of sanctionable conduct on the part of the
      offender;
      e. the reasonableness and necessity of the out-of-pocket expenses
      incurred by the offended person as a result of the misconduct;
      f. the nature and extent of prejudice, apart from out-of-pocket
      expenses, suffered by the offended person as a result of the
      misconduct;
      g. the relative culpability of client and counsel, and the impact on their
      privileged relationship of an inquiry into that area;
      h. the risk of chilling the specific type of litigation involved;
      i. the impact of the sanction on the offender, including the offender’s
      ability to pay a monetary sanction;
      j. the impact of the sanction on the offended party, including the
      offended person’s need for compensation;
      k. the relative magnitude of sanction necessary to achieve the goal or
      goals of the sanction;
      l. burdens on the court system attributable to the misconduct,
      including consumption of judicial time and incurrence of juror fees
      and other court costs; [and]



                                           5
      n. the degree to which the offended person’s own behavior caused the
      expenses for which recovery is sought.

      In Nath v. Tex. Children’s Hosp., 446 S.W.3d 355 (Tex. 2014), the court
upheld a finding of sanctionable conduct but remanded because the trial court had
not considered a Low factor when determining the amount of the sanction. Id. at
372–73. On remand, the trial court was presented with new evidence as to that
factor. See Nath v. Tex. Children’s Hosp., — S.W.3d —, 2016 WL 6767388 (Tex.
App.—Houston [14th Dist.] Nov. 15, 2016) (judge considered supplemental
affidavits and the evidence in the record in assessing the sanction). Similarly here,
the parties should be able to put on supplemental evidence of the Low factors for
the trial judge to consider.

      While I believe a render is appropriate in this case, any remand for the
amount of sanctions, if any, should include evidence as to the Low factors. I
respectfully dissent.




                                       /s/       Tracy Christopher
                                                 Justice


Panel consists of Justices Christopher, Bourliot, and Spain. (Spain, J., majority).




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