                                     In The
                                Court of Appeals
                       Seventh District of Texas at Amarillo

                                     No. 07-12-00192-CV


                         BOB E. WOODY, THE RANCH L.L.C.,
                     AND HECTOR H. CARDENAS, JR., APPELLANTS

                                             V.

                J. BLACK'S, L.P. AND J. BLACK'S, G.P., L.L.C., APPELLEES

                            On Appeal from the 345th District Court
                                     Travis County, Texas
           Trial Court No. D-1-GN-09-001436, Honorable Stephen Yelenosky, Presiding

                                     October 18, 2013

                              MEMORANDUM OPINION
                     Before CAMPBELL and HANCOCK and PIRTLE, JJ.

      This appeal arises from a commercial landlord-tenant dispute over the sublease

of premises located in Austin. Judgment in the trial court was for appellee J. Black’s, LP

and J. Black’s, GP, LLC (J. Black’s). Appellant Bob E. Woody and the Ranch, LLC

(Woody) present five issues on appeal. Woody’s attorney, Hector H. Cardenas, Jr.,

joins Woody’s fifth issue challenging an award of monetary sanctions in favor of J.

Black’s.     We will affirm in part and otherwise reverse and remand for further

proceedings.
                                      Background


       In 2006, Woody leased property located at 710 West 6th Street in Austin from

Montwalk Holdings, LP (the master lease).      Woody subleased the first floor of the

structure to J. Black’s for use as a bar and restaurant. Woody operated a bar known as

“The Ranch” in the space above and beside J. Black’s. Mr. Woody is also a limited

partner in J. Black’s.


       The primary term of the sublease began September 1, 2006, and ended August

31, 2009, but the sublease gave J. Black’s options for extending the term.


       To exercise its option to extend the sublease term for an additional thirty-six

months, the sublease required J. Black’s to provide Woody written notice by March 4,

2009. By notice sent by certified mail, return receipt requested, dated February 23,

2009, J. Black’s stated its intention to extend the sublease term through August 31,

2012. The notice was addressed to Woody at the location specified in the sublease.

However, it was not received by Woody.


       Through two March 2009 letters, Woody demanded that J. Black’s cure asserted

sublease defaults concerning food service and installation of gas heaters connected to

Woody’s gas meter without consent and without city permits. J. Black’s paid Woody the

amount demanded for natural gas used by the heaters and eventually removed the

heaters.


       During April 2009 Woody’s gave J. Black’s written notice that its February 23,

2009 notice was not received and the sublease term therefore was not extended.

Woody demanded that J. Black’s vacate the premises by midnight on August 31, 2009.


                                           2
        Woody filed suit on May 5, 2009, alleging J. Black’s committed conversion,

breach of contract, theft, and trespass to personal property. At Woody’s request, a

temporary restraining order issued against J. Black’s.


        J. Black’s answered and through a counterclaim alleged Woody committed fraud

concerning the issue of gas heaters and that Woody “repudiated and breached” the

sublease by alleging non-existent lease defaults, refusing to recognize the extension of

the sublease term, and demanding that J. Black’s vacate the premises.         J. Black’s

requested specific performance of the sublease, or alternatively, damages.


        J. Black’s moved for partial summary judgment on its breach of contract

counterclaim. It argued Woody breached the sublease by refusing to acknowledge the

extension of the sublease term and demanding holdover rent. The motion was set for

hearing on December 14, 2009. On December 9, Woody filed a document containing a

response to the motion and its own motion for partial summary judgment on the grounds

that J. Black’s breached the sublease and that the sublease expired on August 31,

2009.    J. Black’s objected to the untimeliness of notice and the trial court did not

consider Woody’s motion at the December 14 hearing. According to an order signed

December 17, the trial court granted J. Black’s motion “in full.”


        Through an August 2010 motion, J. Black’s sought a second partial summary

judgment requesting judgment that it did not breach the sublease, Woody breached the

sublease by asserting groundless defaults, and J. Black’s did not commit conversion,

trespass, and theft as Woody alleged.        The trial court rendered a partial summary

judgment that Woody take nothing on its claims that J. Black’s defaulted on the




                                             3
sublease and on Woody’s claims against J. Black’s for conversion, trespass, and theft.

Judgment was not granted, however, on J. Black’s claim that Woody breached the

sublease by falsely asserting defaults.


      During November 2010, J. Black’s filed a third motion for partial summary

judgment, this time requesting specific performance of the sublease and an award of

attorney’s fees under Civil Practice and Remedies Code § 38.001 and the master lease.


      In January 2011, the trial court signed a judgment, in the form of a final judgment,

which, among other things, decreed specific performance and awarded J. Black’s the

requested attorney’s fees under section 38.001. Woody’s motion for new trial was

granted by an order signed in April 2011.


      In October 2011, Woody filed a motion for summary judgment on the grounds

that the sublease terminated on August 31, 2009, that J. Black’s was in default, and

seeking recovery of holdover rent. J. Black’s responded and also requested sanctions

against Woody and Cardenas under Civil Practice and Remedies Code Chapter 10.

According to J. Black’s, Woody’s motion for summary judgment sought relief previously

rejected by the trial court.   The trial court denied Woody’s motion and entered a

monetary sanction of $6,958.00 against Woody and Cardenas. A final judgment was

signed on January 12, 2012, and Woody’s motion to modify and for new trial was

denied by order signed March 28, 2012.




                                            4
                                         Analysis


       Extension of Sublease


       By its first, second, and third issues Woody contends the trial court erred in

adjudging Woody breached the sublease by refusing to acknowledge its extension by J.

Black’s.


       We review the trial court’s grant of summary judgment de novo. Provident Life &

Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). We take as true all

evidence favorable to the non-movant, and indulge every reasonable inference and

resolve any doubt in the non-movant’s favor. Nixon v. Mr. Property Management Co.,

690 S.W.2d 546, 548-49 (Tex. 1985). To obtain summary judgment, a movant must

conclusively prove all essential elements of its claim. MMP, Ltd. v. Jones, 710 S.W.2d

59, 60 (Tex. 1986).



       In part relevant to this discussion, the sublease provides:

       3.01 Term. . . . If Sublessee is not in default under the Sublease, and
       subject to notice from Sublessee to Sublessor at least one hundred and
       eighty (180) days prior to the end of the Term or an extension of the Term,
       that Sublessee intends to exercise one or all of sublessee’s four options to
       extend the Sublease for thirty-six (36) additional months, each as further
       described in Section 4.01 (the “Option Periods”), the term of the sublease
       may be extended by Sublessee accordingly. The option to renew belongs
       to Sublessee and will not require Lessor’s or Sublessor’s approval.

Material to the parties’ present dispute, the sublease further provides:




                                             5
       9.04 Notices. Subject to Article 1.02[1] hereof, all notices, consents,
       requests, instructions, approvals and other communications provided for
       herein and all legal process in regard hereto shall be validly given, made
       or served, if in writing and delivered personally or sent by United States
       certified or registered mail, postage prepaid, return receipt requested:

              If to Sublessor:
              2204 Point Bluff
              Austin, Texas 78746
              Attn: Bob Woody
              ***
       or to such other addresses as any party hereto may, from time to time,
       designate in writing delivered in a like manner.
       Woody’s contention summary judgment for J. Black’s was improper begins with

the summary judgment evidence Woody did not receive the February 23, 2009 notice J.

Black’s sent by certified mail, return receipt requested. According to Woody’s

interpretation of the sublease’s section 9.04, an effective notice, if sent by certified mail,

return receipt requested, must actually be delivered to the addressee. For support for

his reading of the section, Woody depends on the phrase “delivered in a like manner,”

appearing at the section’s end. His reading is further supported, Woody contends, by

the language of section 3.01 of the sublease which requires notice of extension “from” J.

Black’s “to” Woody. Woody contends that because he did not receive J. Black’s notice,

it was not delivered nor was it notice “to” him.


       We follow settled rules of contract construction when construing a lease. Luccia

v. Ross, 274 S.W.3d 140, 146 (Tex.App.--Houston [1st Dist.] 2008, pet. denied).

Construction of an unambiguous contract is a question of law we review de novo.

       1
         The sublease is not consistent in its use of the identifiers “section” and “article.”
Solely for the sake of clarity, we will hereinafter refer to the numbered paragraphs of the
sublease as “sections.”


                                              6
Tawes v. Barnes, 340 S.W.3d 419, 425 (Tex. 2011).            Our primary concern when

construing a written contract is ascertaining and giving effect to the intention of the

parties expressed in the document. Frost Nat’l Bank v. L&F Distribs., Ltd., 165 S.W.3d

310, 311-12 (Tex. 2005). If possible, when construing a contract, we first consider the

instrument’s plain language.    Rowan Companies, Inc. v. Wilmington Trust Co., 305

S.W.3d 698, 708 (Tex.App.--Houston [14th Dist.] 2009, pet. granted, judgm’t vacated

w.r.m.); see Lesikar v. Moon, 237 S.W.3d 361, 367 (Tex.App.--Houston [14th Dist.]

2007, pet. denied) (“Common words should be given their plain meaning unless the

context indicates the words were used in another sense”). Absent the manifestation of

a different intention, courts interpret contract language according to its generally

prevailing meaning. Rowan Companies, Inc., 305 S.W.3d at 708.


       We find Woody’s contentions meritless. By the plain language of section 9.04 of

the sublease, notices are validly given if in writing and delivered personally or sent by

United States certified or registered mail, postage prepaid, return receipt requested to

the designated address. Woody’s reading, requiring that notices sent by certified mail

be delivered, ignores the section’s plain provision of alternate means of giving notice, by

personal delivery or by mail, certified or registered. See J.M. Davidson, Inc. v. Webster,

128 S.W.3d 223, 229 (Tex. 2003) (to ascertain the true intentions of the parties from an

instrument, a court “must examine and consider the entire writing in an effort to

harmonize and give effect to all the provisions of the contract so that none will be

rendered meaningless”).


       The phrase to which Woody points, “delivered in a like manner,” plainly refers not

to the giving of notices or other communications but to a party’s designation of a notice


                                            7
address other than that listed in the sublease.      If, as Woody contends, the phrase

requires that such designations actually be delivered, a question that is not before us

and on which we express no opinion, such would not be surprising, since designation of

a new notice address by a party amounts to an amendment of the sublease.


       If resort to rules of construction is necessary to aid our understanding of the role

of the phrase “delivered in a like manner,” we find the grammatical “rule of the last

antecedent” applicable. The rule provides that “qualifying words, phrases, and clauses”

apply only to the immediately preceding words or phrase and “are not to be construed

as extending to and including others more remote.”2 Rowan Companies, Inc., 305

S.W.3d at 708; see Stewman Ranch, Inc. v. Double M. Ranch, Ltd., 192 S.W.3d 808,

812 (Tex.App.--Eastland 2006, pet. denied) (explaining rule and noting it is not inflexible

or controlling and must be applied with due regard for the entire instrument).          Cf.

Barnhart v. Thomas, 540 U.S. 20, 26, 124 S.Ct. 376, 157 L.Ed.2d 333 (2003) (last

antecedent rule not absolute and can be overcome by other indicia of meaning).


       The rule of the last antecedent supports the plain meaning we discern in the

section’s wording. Under the rule, the phrase “delivered in a like manner” would be

deemed to apply to the immediately preceding phrase “such other addresses as any

party hereto may, from time to time, designate in writing.” It would not be read to leap

backward and modify the plainly-stated options of giving notice by certified or registered

mail. Stewman Ranch, Inc., 192 S.W.3d at 812 (“relative and qualifying phrases are to

be applied to the words or phrases immediately preceding them . . . .”).

       2
        The last antecedent rule of construction means that “A or B with respect to C”
contains two items: (1) “A” and (2) “B with respect to C.” Stepnowski v. Comm’r, 456
F.3d 320, 324 n.7 (3d Cir. 2006).


                                             8
       Woody makes a passing alternative claim that the notice provision of the

sublease is ambiguous.        If a contract is subject to two or more reasonable

interpretations after applying the pertinent rules of construction, the contract is

ambiguous, creating a fact issue on the parties’ intent. Webster, 128 S.W.3d at 229.

Aside from whether Woody properly may raise ambiguity for the first time on appeal, our

conclusion the provision’s plain language, supported by an applicable rule of

construction, lends itself to only one reasonable reading requires us also to conclude it

is not ambiguous.


       Woody makes brief reference to its motion for partial summary judgment seeking

holdover rent. But this argument depends on a finding that J. Black’s did not provide

timely notice of its intention to carry the sublease into the first option period. Absent

such a finding, the argument also is without merit.


       Finding the trial court was correct to conclude J. Black’s gave timely notice of its

intention to extend the term of the sublease, we overrule Woody’s first, second and third

issues.


       Specific Performance


       Woody argues by its fourth issue that the trial court erred in decreeing specific

performance in favor of J. Black’s and awarding J. Black’s attorney’s fees. In subpart

(C) of the issue, Woody specifically contends J. Black’s failed to prove it was ready,

willing and able to perform the first option term of the sublease.3



       3
         The nub of the question concerns extending the sublease into the first option
period, that is from August 31, 2009, through August 31, 2012. But before briefing was


                                             9
         J. Black’s obtained its decree of specific performance through its third motion for

partial summary judgment. As to this remedy, the final judgment says only, “Specific

Performance of the Sublease is equitable and necessary to afford [J. Black’s] sufficient

relief[.]” From its pleading, it appears the performance J. Black’s sought was of “the

terms related to the extension of the term of the Sublease” although in its brief it tells us

the judgment of the trial court requires “Woody to treat J. Black’s as a tenant in good

standing, allow it to peacefully exist in the subleased space pursuant to the terms of the

Sublease as executed, and not continuously demand holdover rent at an increased

rate.”


         The equitable remedy of specific performance operates to compel a party

violating a duty under a valid contract to comply with its obligations.           S. Plains

Switching, Ltd. v. BNSF Ry., 255 S.W.3d 690, 703 (Tex.App.--Amarillo 2008, pet.

denied). The rationale is, when the recovery of monetary damages is inadequate to

compensate the complainant the transgressor is compelled to perform the promise of its

contract. Id. (citing Estate of Griffin v. Sumner, 604 S.W.2d 221, 225 (Tex.Civ.App.--

San Antonio 1980, writ ref’d n.r.e.)).




completed on appeal, the first option period had expired. The issue whether the trial
court’s decree of specific performance was correct might thus be moot. See United
Coin Meter Co. v. Johnson-Campbell Lumber Co., 493 S.W.2d 882, 890-91
(Tex.Civ.App.--Fort Worth 1973, no writ) (appellate challenge of trial court’s refusal to
order specific performance of lease dismissed as moot because secondary term of
lease expired while case was on appeal). But, because J. Black’s award of attorney’s
fees is contested on appeal, and depends on the viability of the trial court’s decree of
specific performance, the issue is not moot. See Allstate Ins. Co. v. Hallman, 159
S.W.3d 640, 642-43 (Tex. 2005) (appellee’s remaining issue in recovering attorney’s
precluded application of mootness doctrine).


                                             10
       To obtain specific performance, a party must, among other things, plead and

prove it was ready, willing and able to timely perform its obligations under the contract.

DiGiuseppe v. Lawler, 269 S.W.3d 588, 593 (Tex. 2008). This means even though a

defendant refuses to perform its contractual obligations, a plaintiff must show it could

have performed its contractual obligations. Id. (citing Corzelius v. Oliver, 148 Tex. 76,

220 S.W.2d 632, 635 (1949)). “[T]o be entitled to specific performance, the plaintiff

must show that it has substantially performed its part of the contract, and that it is able

to continue performing its part of the agreement.        The plaintiff’s burden of proving

readiness, willingness and ability is a continuing one that extends to all times relevant to

the contract and thereafter.” Id. (quoting 25 Richard A. Lord, Williston on Contracts §

67:15, at 236-37 (4th ed. 2002) (citations omitted)); Henry S. Miller Co. v. Stephens,

587 S.W.2d 491, 492 (Tex.Civ.App.--Dallas 1979, writ ref’d n.r.e.) (noting a party

seeking specific performance must at all times remain ready, willing and able to perform

its contractual responsibilities according to the terms of the contract). Even in the face

of repudiation of the contract by the defendant, a plaintiff seeking specific performance

must demonstrate its own readiness, willingness and ability to perform on the date set

by the contract if specific performance is to be decreed. DiGiuseppe, 269 S.W.3d at

593 (quoting Edward Yorio, Contract Enforcement: Specific Performance and

Injunctions § 6.4, at 144-45 (1989) (citation omitted)); Burford v. Pounders, 145 Tex.

460, 199 S.W.2d 141, 144 (1947) (where the plaintiff’s performance is excused, the

plaintiff “ordinarily is entitled to specific performance where he alleges and proves that

he . . . is ready, able, and willing to perform”). But cf. Jarvis v. Peltier, No. 12-12-00180-

CV, 2013 Tex. App. Lexis 5017, at * 20 (Tex.App.--Tyler Apr. 24, 2013, n.p.h.) (citing




                                             11
Burford, 199 S.W.2d at 145, for rule it is enough on a seller’s breach for a purchaser to

merely plead readiness, willingness and ability to perform but also noting movant for

summary judgment in that case stated his readiness, willingness and ability to perform

in his summary judgment affidavit).


       Here the primary term of J. Black’s sublease expired on August 31, 2009. But

the agreement afforded the sublessee an optional extension of the term. To do so, J.

Black’s was obligated to give timely notice of its intention to carry the sublease into the

option term and be free of default under the sublease. While we have found J. Black’s

gave notice within the specified period, the question here is more focused, asking

whether J. Black’s summary judgment evidence conclusively establishes it was ready,

willing and able to perform its obligations under the sublease.


       Whether conclusive proof of J. Black’s readiness, willingness and ability to

perform its obligations under the sublease could be marshaled we do not say. Rather,

this summary judgment record simply does not contain conclusive proof. We therefore

sustain Woody’s fourth issue, subpart (C). Our review of Woody’s remaining arguments

challenging the decree of specific performance is unnecessary to the disposition of this

appeal. Tex. R. App. P. 47.1.


       Attorney’s Fees


       The judgment awards J. Black’s “attorney’s fees under the terms of the parties’

contract and under Tex. Civ. Prac. & Rem. Code § 38.001.” We begin by noting, and J.

Black’s does not contend otherwise, the sublease does not provide a recovery of




                                            12
attorney’s fees for a prevailing party. Nor do the parties treat the master lease as a

source for such relief.4


       Thus J. Black’s recovery of attorney’s fees depends on the provision of Civil

Practice and Remedies Code section 38.001(8) which authorizes recovery of such fees

to a party asserting a “valid claim” on a written contract. Tex. Civ. Prac. & Rem. Code §

38.001(8) (West 2008). A valid claim under section 38.001(8) includes a claim for the

recovery of monetary damages as well as any claim for which a party recovers “at least

something of value.” Albataineh v. Eshtehardi, No. 01-12-00671-CV, 2013 Tex. App.

Lexis 5406, at *3-4 (Tex.App.--Houston [1st Dist.] May 2, 2013, no pet.). An injunction

enforcing specific performance of a contract is something of value. Id.


       Citing Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 391 (Tex. 1997), Woody argues

J. Black’s is not entitled to recover attorney’s fees under § 38.001 because it was not

awarded monetary damages. There the plaintiff sought but did not recover damages for

breach of a subcontract.    Id.   But in the present matter J. Black’s was not denied

monetary damages for breach of the sublease. Instead it sought an equitable decree.

Solis is inapposite.


       Nonetheless J. Black’s is not entitled to recover attorney’s fees under section

38.001(8) since it did not present conclusive proof entitling it to a summary judgment

decreeing specific performance. See Roundville Partners, L.L.C. v. Jones, 118 S.W.3d

73, 82 (Tex.App.--Austin 2003, pet. denied) (when a purchaser is denied specific


       4
         The master lease provides a prevailing signatory may recover attorney’s fees in
a “legal proceeding” brought against another signatory. J. Black’s is not a signatory of
the master lease.


                                           13
performance it may not recover attorney’s fees under section 38.001 as it is not a

prevailing party).


       We sustain Woody’s fourth issue, subparts (G) and (H). Having found the trial

court erred by decreeing specific performance as a matter of law and awarding J.

Black’s attorney’s fees under section 38.001(8), we need not address Woody’s

remaining subissues under its fourth issue. Tex. R. App. P. 47.1.


       Sanctions


       By their fifth issue, Woody and his counsel Cardenas contend the trial court

abused its discretion by imposing a monetary sanction on them under Rule 13 5 and

Chapter 10.6


       Woody filed a motion for partial summary judgment on November 11, 2011,

which J. Black’s charged in a response and motion for sanctions merely rehashed

issues previously resolved by partial summary judgment. Particularly, according to J.

Black’s, Woody’s:


       Motion asserts untimely affirmative defenses, recycles briefing that Judges
       Triana, Rose and Dietz have already found unpersuasive, and seeks
       judgment on claims that have long-since been resolved in J. Black’s favor
       in prior summary judgment proceedings. The Motion was filed purely for
       purposes of harassment and to drive up the cost to J. Black’s of obtaining
       a final resolution of this case.

       The trial court denied Woody relief on its motion for summary judgment and

signed an order imposing a monetary sanction of $6,958 against Woody and Cardenas.

       5
           Tex. R. Civ. P. 13.
       6
           Tex. Civ. Prac. & Rem. Code Ann. §§ 10.001-.005 (West 2002).


                                           14
The court found Woody’s motion for summary judgment “was filed in violation of Texas

Rule of Civil Procedure Rule 13 and Texas Civil Practice and Remedies Code section

10.001, and was filed by [Woody] and their counsel to harass [J. Black’s] and to cause

unnecessary delay, and that [Woody’s] Motion for Summary Judgment has caused a

needless increase in the cost of litigation.” In a handwritten finding the court added, “In

addition the motion sought rulings that would be contrary to prior rulings of the court, by

two different District Judges, and was not presented to them as a motion to reconsider.”


       Rule 13 provides sanctions for a party filing a pleading that is groundless and

brought in bad faith or groundless and brought to harass. Tex. R. Civ. P. 13. A party

seeking the imposition of sanctions under Chapter 10 must demonstrate the pleading or

motion was brought for an improper purpose, there were no grounds for the legal

arguments advanced, or the factual allegations or denials lacked evidentiary support.

Armstrong v. Collin County Bail Bond Bd., 233 S.W.3d 57, 62 (Tex.App.--Dallas 2007,

no pet.); Tex. Civ. Prac. & Rem. Code Ann. § 10.001 (West 2002).


       Our review of a trial court’s order imposing sanctions under Rule 13 and Chapter

10 is for abuse of discretion. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007). A trial

court abuses its discretion if it acts without regard to guiding rules and principles of law,

such that its ruling is arbitrary or unreasonable. Id. The legal sufficiency of evidence

heard by a trial court is a relevant factor in assessing whether it abused its discretion in

imposing sanctions.     Armstrong, 233 S.W.3d at 62 (citing Beaumont Bank, N.A. v.

Buller, 806 S.W.2d 223, 226 (Tex.1991)). As fact finder, the trial court is entitled to

evaluate the credibility of the testimony and determine what weight to give it. Wein v.

Sherman, 03-10-00499-CV, 2013 Tex. App. Lexis 10666, at *24 (Tex.App.--Austin Aug.


                                             15
23, 2013, n.p.h.) (mem. op.) (citing Alpert v. Crain, Caton & James, P.C., 178 S.W.3d

398, 412 (Tex.App.--Houston [1st Dist.] 2005, pet. denied)).


      Concerning the imposition of a sanction under Rule 13 and Chapter 10, Woody

and Cardenas argue the trial court abused its discretion by not conducting an

evidentiary hearing to consider their subjective state of mind.    For the purposes of

Chapter 10 and Rule 13, courts presume pleadings, motions, and other papers are filed

in good faith. Thottumkal v. McDougal, 251 S.W.3d 715, 718 (Tex.App.--Houston [14th

Dist.] 2008, pet. denied) (adopting the same presumption when reviewing a sanctions

award under Chapter 10).       The party moving for sanctions bears the burden of

overcoming this presumption. Canada v. Canada, 02-11-00483-CV, 2013 Tex. App.

Lexis 5138, at *21-22 (Tex.App.--Fort Worth Apr. 25, 2013, n.p.h.) (mem. op.) (citing

GTE Commc’ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 731 (Tex. 1993) (orig.

proceeding)).


      Woody’s motion for summary judgment and J. Black’s motion for sanctions were

heard on November 21, 2011, apparently in the course of a single hearing. But the

appellate record does not contain a reporter’s record of that November 21 hearing. The

reporter’s record of a hearing conducted in January 2012 reflects a comment by the trial

court referring to an event that occurred at “the sanctions hearing.” We thus infer the

trial court considered the proceedings that occurred on November 21 fit that description.


      J. Black’s argues that because the appellate record does not include a reporter’s

record of a sanctions hearing we must presume the court heard evidence sufficient to

support the sanctions award. In this case, we disagree. While J. Black’s attached




                                           16
affidavit evidence to its motion for sanctions and the trial court’s order recites it

considered evidence, neither party asserts the court received evidence at the November

21, 2011 hearing, nor do we find other indication in the record of an evidentiary

“sanctions hearing.” In this circumstance, we must limit our evaluation of the evidence

supporting the sanctions award to that appended to J. Black’s motion. 7 See Michiana

Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 783 (Tex. 2005) (only when

proceedings indicate an evidentiary hearing was held must complaining party present a

record of that hearing to establish harmful error).


       While J. Black’s motion showed Woody’s October 2011 motion for summary

judgment asserted grounds addressed by prior interlocutory orders, its evidentiary

content did not demonstrate the subjective intent of the movant Woody or his attorney

Cardenas. See, e.g., Zeifman v. Nowlin, 322 S.W.3d 804, 810-11 (Tex.App.--Austin

2010, no pet.) (outlining evidence supporting sanctions under Rule 13). 8 We must

conclude the trial court acted without evidence supporting the assessment of a sanction

under Rule 13 or Chapter 10 against Woody and Cardenas, and thus abused its



       7
         J. Black’s contends the trial court could have taken judicial notice of the
contents of its file. According to the record of the January 2012 hearing, the trial court
took judicial notice “of the entire file” for determination of a matter other than the
imposition of sanctions. Otherwise, J. Black’s does not point to an indication in the
record of judicial notice taken for establishing sanctionable conduct, nor does it explain
how even the entire contents of the clerk’s record would have met the evidentiary
requirements to support sanctions.
       8
          The Austin Court of Appeals, in whose district this case originated, has held
that “awards of attorney’s fees under the Civil Practice and Remedies Code require
essentially the same findings as does rule 13.” Zeifman v. Michels, No. 03-12-00114-
CV, 2013 Tex.App. Lexis 10523, at *30 (Tex.App.--Austin Aug. 22, 2013, n.p.h.) (mem.
op.) (citing Lake Travis Indep. Sch. Dist. v. Lovelace, 243 S.W.3d 244, 256 (Tex.App.--
Austin 2007, no pet.)).


                                             17
discretion by doing so. See Armstrong, 233 S.W.3d at 62. We sustain Woody’s fifth

issue.


                                          Conclusion


         The trial court correctly found that J. Black’s gave timely notice of its intention to

carry the sublease into the first option period. The court erred, however, in finding

evidence J. Black offered in support of its claim for specific performance of the sublease

to be conclusive.      The award of attorney’s fees predicated on Civil Practice and

Remedies Code section 38.001 was also error.              Finally, the trial court abused its

discretion by imposing a sanction on Cardenas and Woody under Rule 13 and Chapter

10. We therefore affirm the judgment of the trial court in part and otherwise reverse the

judgment and remand the case for further proceedings consistent with this opinion.




                                                    James T. Campbell
                                                        Justice



Pirtle, J., concurs as to the disposition of Issues One through Four, but dissents as to
the disposition of Issue Five, without opinion.




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