Opinion filed December 19, 2013




                                              In The


           Eleventh Court of Appeals
                                          __________

                                    No. 11-12-00269-CV
                                        __________

                          CYNTHIA L. CLACK, Appellant
                                                 V.
                     LARRY WOLLSCHLAGER, Appellee


                        On Appeal from the 318th District Court
                                Midland County, Texas
                           Trial Court Cause No. FM-47,213


                         MEMORANDUM OPINION
       Judge Les Hatch entered a Rule 13 sanctions order in which he ordered
Cynthia L. Clack, an attorney, to pay $17,670 as a sanction for her conduct in the
underlying lawsuit.1 See TEX. R. CIV. P. 13. We affirm.



       1
         Claudia Donaldson also represented Kimberly Low Carlson in the underlying lawsuit.
Judge Hatch ordered Donaldson, jointly and severally with Clack, to pay the $17,670 fine, but Donaldson
did not appeal Judge Hatch’s Rule 13 sanctions order.
         Clack contends that Judge Hatch, who heard the sanctions motion, entered
the order, and levied the fine, abused his discretion when he found her allegations
of “trickery and collusion” between opposing counsel and Judge Dean Rucker, the
trial judge in the underlying custody case, were groundless and brought in bad
faith.
                                        I. Background Facts
         A. The Underlying Case
         Clack represented Kimberly Low Carlson in a highly contested child
custody case between Carlson and her ex-husband, Larry Wollschlager.2 David R.
McClure represented Wollschlager. Carlson and Wollschlager’s child suffers from
a condition that requires continuous medical care, and given those special health
needs, the parental rights and duties, including financial obligations, were highly
contested.
         Following a settlement in mediation, Judge Rucker signed an agreed order.
Judge Rucker appointed Wollschlager and Carlson as joint managing conservators
of the child; restricted the child’s residence to Midland County, Texas; and gave
each parent the exclusive right to designate the child’s primary residence within
Midland County during his or her periods of possession.
         Subsequently, Carlson moved to modify the order and sought to be
designated sole managing conservator of the child with no geographic restriction
on his place of residence and to make Wollschlager fully responsible for the child’s
medical expenses. Wollschlager countersued, seeking to be designated as joint
managing conservator with the exclusive right to designate the child’s primary
residence. Carlson requested a jury trial, and the case was placed on the jury
docket.


         2
          Donaldson also represented Carlson and was listed on the pleadings.

                                                    2
      Two weeks before the date set for trial, Wollschlager moved to strike the
case from the jury docket on grounds that Carlson, in an attempt to taint the jury
pool, posted a website that broadcast her view of the child’s medical condition.
The website contained videos that Wollschlager intended to offer as exhibits. On
the website, Carlson solicited donations for the child’s health care and Carlson's
legal expenses. The trial court instructed Carlson to take the website down, but the
trial court denied Wollschlager’s motion to strike the case from the jury docket.
      When the trial concluded, Judge Rucker submitted a charge to the jury in
which it was asked whether the joint managing conservator should be replaced
with a sole managing conservator and, if “yes,” who should be named sole
managing conservator.     Next in the charge, Judge Rucker asked the jury, on
condition that it answered “No” to the question of whether there should be a sole
managing conservator:
      (1)    whether the joint managing conservatorship should be modified so
             that one parent has the exclusive right to determine the child’s
             primary residence;

      (2)    who that parent should be;

      (3)    whether that parent’s right should be limited by a geographic
             restriction; and

      (4)    what the geographic restriction should be if the jury chose to impose
             one.

A supplemental charge instructed the jury that the sole managing conservator’s
rights would be subject to any limitation imposed by the trial court if it found that
the limitation would be in the best interest of the child. Carlson did not object to
the submitted charge, and neither Carlson’s proposed charge nor the charge
submitted to the jury addressed whether a geographic restriction should be imposed


                                          3
on a sole managing conservator’s right to determine the primary residence of the
child.
         After deliberations, the jury found that the previous appointment of joint
managing conservators should be replaced with the appointment of a sole
managing conservator and named Carlson as the parent who should be appointed
as sole managing conservator. Because the jury answered, “Yes,” to the question
regarding replacement of the joint managing conservators with a sole managing
conservator, it reached none of the remaining questions related to a joint managing
conservator’s right to determine the child’s primary residence.
         Through her attorneys, Carlson moved for entry of a final order and asked
the trial court to provide written instructions and orders or to schedule a hearing to
address the issues remaining before the court, including support, possession and
access, and any special orders regarding the child’s medical care. Wollschlager
requested a hearing on nonjury issues and asked the trial court, among other
requests, to designate Midland County as the child’s county of residence.
Wollschlager sent a letter to Judge Rucker and Clack to notify them of his intent to
request a geographic restriction and included caselaw to support his request. Again
through her attorneys, Carlson responded to Wollschlager’s contentions. The letter
was signed by Clack and was written on Clack’s law office letterhead.
         After Judge Rucker heard evidence regarding the outstanding nonjury issues,
he issued a letter ruling in which he restricted Carlson’s exclusive right to
designate the child’s primary residence to Midland County and contiguous
counties and ordered that Wollschlager pay 100% of the child’s health care
expenses. According to the ruling, Judge Rucker had examined the Texas Family
Code and relevant caselaw on sole managing conservators and jury trials, and he
concluded that the Family Code expressly authorizes courts to impose limitations


                                          4
on the sole managing conservator’s exclusive rights, including a geographic
restriction on the right to determine the child’s residence.
      In response to Judge Rucker’s ruling, Clack prepared, signed, and filed a
motion for judgment to conform to the jury verdict. The motion contained the
following:
             [Carlson] very respectfully disagrees that a geographic
      restriction is called for under the facts of this case. However, the fact
      that the Court prepared a charge that gave the jury a question on
      geographic restriction to answer only should they bypass Question 1
      on Sole Managing Conservator and only if they went to the Question
      on Joint Managing Conservator, is an erroneous application of the
      law, giving special treatment to someone who does not reasonably
      need it.

Clack attached the following footnote to the sentence related to the jury charge:
“Further, this rises to the level of trickery on the part of the Court and smacks of
collusion between counsel for Larry Wollschlager and the Court.”
      Thereafter, Judge Rucker notified the lawyers for Wollschlager and Carlson
that the case merited further consideration, and he withdrew his letter ruling. In
response to Judge Rucker’s letter and Clack’s allegations of “trickery and
collusion,” Wollschlager sought sanctions under Rule 13 of the Texas Rules of
Civil Procedure.
      B. The Sanctions Hearing
      Judge Hatch was assigned to conduct a hearing on the motion for sanctions.
Clack, her co-counsel—Donaldson, Carlson, Wollschlager, and McClure each
testified to their knowledge of the circumstances surrounding the allegations.
Clack relied on the following evidence, viewed as a whole, to support her
allegations of trickery and collusion:
      (1)    McClure and Judge Rucker sat next to each other at a dinner for
             family law specialists while this case was on the docket;

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      (2)    McClure, two weeks before trial, moved to strike the case from the
             jury docket on grounds that Clack found implausible;

      (3)    McClure was frequently seen in the hallway to Judge Rucker’s office
             during trial and had the judge’s secretary handle a personal request;

      (4)    Judge Rucker appeared to know that McClure was going to request a
             trial amendment after the close of evidence before McClure had done
             so;

      (5)    Clack saw McClure and Judge Rucker sitting next to each other at a
             private dinner with a small group while Clack’s post-verdict motion
             was pending;

      (6)   Wollschlager paid for 100% of the child’s orthotics six days before
            the court ruled that Wollschlager would be fully responsible for such
            expenses, although he had never paid more than 50% in the past; and

      (7)   Carlson received a text message from Wollschlager’s former
            employee that successfully predicted when the court would rule and
            said that Judge Rucker and McClure were “up to something.”

Donaldson testified that she and Clack did not make the allegations in bad faith;
rather, the high degree of “familiarity” and “extrajudicial conduct” between
McClure and Judge Rucker led to their suspicion of special treatment, trickery, and
collusion in imposing the geographic restriction.
      Carlson briefly testified to Wollschlager’s payment of the child’s orthotics.
Carlson said that Wollschlager’s offer to pay 100% of the bill for the orthotics
struck her as unusual because that was the third set of orthotics for the child and
Wollschlager had never paid more than 50% of the bills in the past.
      Wollschlager testified that he paid for the child’s new orthotics out of
generosity because Wollschlager suggested that the child receive the treatment and
he knew it would cost more money. Wollschlager testified that McClure had never


                                         6
indicated he had any special relationship with Judge Rucker, and McClure had told
Wollschlager he did not know how the judge would rule.
      McClure testified that he and Judge Rucker did not engage in any improper
conduct and that he was shocked and embarrassed by Clack’s allegations. McClure
countered Clack’s testimony with the following:
      (1)    McClure sat at the same table as Judge Rucker, along with eight to ten
             other family law specialists, at the annual banquet during a seminar
             for family law specialists, but McClure did not discuss the pending
             case at the dinner and did not treat Judge Rucker any differently than
             anyone else at the table;

      (2)    McClure had frequently gone into the hallway to Judge Rucker’s
             office to get coffee and had seen other lawyers do the same, and
             McClure never went into Judge Rucker’s private chambers to meet
             with him alone about the case;

      (3)    Based on how the evidence had played out, everyone assumed that
             McClure had pleaded to have Wollschlager appointed sole managing
             conservator, but he had not; therefore, he asked for leave to amend the
             pleadings to reflect the request;

      (4)    McClure had dinner with Judge Rucker on a separate occasion as part
             of a group of eight to ten lawyers who frequently plan dinners
             together, but McClure never discussed the pending case or any other
             case with Judge Rucker that evening; and

      (5)    McClure did not know that a ruling was coming or what the ruling
             would be when Clack received the text message from Wollschlager’s
             former employee.

      After hearing the evidence, Judge Hatch awarded Wollschlager sanctions in
an amount less than his attorney’s fees and costs in the prosecution of the motion
for sanctions. The court ordered that Clack and Donaldson were jointly and
severally liable for the sanctions.



                                         7
                                II. Issue Presented
      Did the trial court abuse its discretion when it imposed sanctions against
Clack after finding her allegations of trickery and collusion between Judge Rucker
and McClure were groundless and made in bad faith?
                              III. Standard of Review
      We review a trial court’s Rule 13 sanctions order under an abuse of
discretion standard. Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex.
2006). The ruling will be reversed only if the trial court acted without reference to
any guiding rules and principles, such that its ruling was arbitrary or unreasonable.
Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). In reviewing a sanctions
order, we are not bound by a trial court’s findings of fact and conclusions of law;
rather, we must independently review the entire record to determine whether the
trial court abused its discretion. Id. There is no abuse of discretion if some
evidence of substantive and probative character supports the trial court’s decision
or if the evidence is conflicting. Harrison v. Harrison, 363 S.W.3d 859, 862–63
(Tex. App.—Houston [14th Dist.] 2012, no pet.); State Office of Risk Mgmt. v.
Foutz, 279 S.W.3d 826, 830 (Tex. App.—Eastland 2009, no pet.). A trial court
abuses its discretion if the sanctions imposed are not appropriate and just. Am.
Flood Research, 192 S.W.3d at 583.
                                    IV. Analysis
      Rule 13 authorizes a trial court to impose sanctions against an attorney, a
represented party, or both for filing a pleading that is groundless and brought in
bad faith or for harassment. See TEX. R. CIV. P. 13. To determine whether Rule 13
sanctions are proper, the trial court must examine the facts and circumstances in
existence at the time the pleading was filed. Robson v. Gilbreath, 267 S.W.3d 401,
405 (Tex. App.—Austin 2008, pet. denied). In this case, Wollschlager did not
allege, and Judge Hatch did not find, that Clack’s allegations were for the purpose
                                          8
of harassment; therefore, we limit our review to whether the pleading was
groundless and brought in bad faith. See GTE Commc’ns Sys. Corp. v. Tanner,
856 S.W.2d 725, 731 (Tex. 1993).
      A. Whether Clack’s Allegations Were Groundless
      “Groundless” means “no basis in law or in fact and not warranted by good
faith argument for the extension, modification, or reversal of existing law.” Great
W. Drilling, Ltd. v. Alexander, 305 S.W.3d 688, 697 (Tex. App.—Eastland 2009,
no pet.). The trial court uses an objective standard to determine whether a pleading
is groundless and asks whether the party and counsel made a reasonable inquiry
into the legal and factual basis of the claim. Id. at 697–98.
      In its order granting the motion for sanctions, Judge Hatch found Clack’s
allegations to be groundless because (1) Clack neither requested the jury question
she complains of nor objected to the charge given to the jury and (2) the Family
Code prohibits a jury from deciding whether to impose a geographic restriction on
a sole managing conservator’s right to designate the child’s residence.
       Judge Hatch also found that Clack’s allegations of “extrajudicial conduct”
did not constitute a factual basis for her allegations of trickery and collusion
because she knew over two months before the sanctions hearing that Wollschlager
wanted the child’s residence to be restricted and knew ten days before the hearing
that Wollschlager had moved to request such a restriction. According to Judge
Hatch, neither Judge Rucker’s consideration nor his ruling on the geographic
residence restriction for the child, taken alone or in conjunction with Clack’s
allegations of extrajudicial conduct, provided a factual basis for Clack’s allegations
of trickery and collusion.
      We agree with Judge Hatch’s reasoning that Clack’s allegations were not
grounded in law or fact. The instruction that Clack alleges she was tricked out of
requesting would have been erroneous if Judge Rucker had included it in the
                                          9
charge. Clack’s footnote in which she accused Judge Rucker and McClure of
trickery and collusion was attached to a sentence denoting Judge Rucker’s failure
to instruct the jury to consider a geographic restriction in connection with a sole
managing conservator’s right to designate the child’s primary residence. But the
plain language of the Family Code prohibits a jury from determining whether to
place a geographic restriction on a sole managing conservator’s right to designate
the primary residence of the child; a jury may place a geographic restriction on the
right to designate the primary residence of the child only regarding a joint
managing conservator. See TEX. FAM. CODE ANN. §§ 105.002(c), 153.132 (West
2008); Messier v. Messier, 389 S.W.3d 904, 915 n.3 (Tex. App.—Houston [14th
Dist.] 2012, no pet.).
        Furthermore, there is evidence that Clack had knowledge of the foregoing
law when she signed the pleading at issue. McClure filed, and duly served upon
Clack, a trial brief in which he referred to the relevant portions of the Family Code
and in which he analyzed their application to the jury instruction at issue in this
case.    However, Clack made no argument against McClure’s analysis, never
requested the instruction of which she complains, and also failed to object to the
charge that Judge Rucker gave to the jury. Clack admitted that it was not proper to
ask a jury whether a geographic restriction should be imposed on a sole managing
conservator. She failed to present any legal argument for the extension,
modification, or reversal of that existing law. Therefore, Clack’s allegations were
not grounded in law or fact insofar as they related to Judge Rucker’s submission of
the jury charge.
        In her brief, Clack claims that the allegations of trickery and collusion were
not limited to Judge Rucker’s preparation of the jury charge but also applied to his
imposition of a geographic restriction on the child’s residence. However,
regardless of whether the allegations refered to the geographic restriction itself or
                                          10
were limited to the absence of a jury instruction, every piece of evidence to support
Clack’s claim was readily controverted by McClure at the hearing on the motion
for sanctions and was not indicative of any actual impropriety.
      Clack admitted that she was merely suspicious of Judge Rucker’s and
McClure’s actions and that she had no direct evidence to prove the existence of
collusion or trickery. At a minimum, Clack should have inquired further by raising
her concerns with Judge Rucker or McClure rather than filing a written motion in
which she accused them of committing serious disciplinary violations.          After
reviewing the evidence upon which Clack relied, we conclude her allegations rest
on highly circumstantial evidence that fails to demonstrate that Judge Hatch acted
arbitrarily or unreasonably when he found that Clack did not reasonably inquire
into the legal and factual basis of her claim. We cannot say that Judge Hatch
abused his discretion when he found Clack’s allegations were groundless.
      B. Whether Clack Acted in Bad Faith
      A party acts in bad faith when he is on notice, through discovery or other
information, that his understanding of the facts may be incorrect and he does not
make reasonable inquiry to ascertain the facts before he files a pleading alleging
them. Robson, 267 S.W.3d at 407. Bad faith is not bad judgment or negligence;
bad faith requires conscious wrongdoing for dishonest, discriminatory, or mali-
cious purposes. Great W. Drilling, 305 S.W.3d at 698. Improper motive is an
essential element of bad faith. Dike v. Peltier Chevrolet, Inc., 343 S.W.3d 179,
193 (Tex. App.—Texarkana 2011, no pet.); Robson, 267 S.W.3d at 407. Courts
must presume that pleadings are filed in good faith, and the party moving for
sanctions must overcome this presumption. GTE Commc’ns, 856 S.W.2d at 730–
31.
      Judge Hatch found that Clack acted in bad faith because the allegations, if
true, would have constituted a violation of the Texas Disciplinary Rules of
                                         11
Professional Conduct and the Code of Judicial Conduct, which Clack would have
had a duty to report.     According to Judge Hatch’s order on the motion for
sanctions, Clack’s lack of action in failing to report the improper conduct or to
discuss the allegations with Judge Rucker indicates a lack of conviction in the
truthfulness of the allegations. The allegations were gratuitous, lent nothing to the
legal arguments, and did not make the motion more persuasive. As a result,
Judge Hatch concluded that the allegations were made in bad faith because Clack
made them to intimidate Judge Rucker and to malign his and McClure’s integrity.
      Although Clack and Donaldson testified at the hearing on the motion for
sanctions that Clack’s allegations were not made in bad faith and that her intent
was not dishonest or malicious, a party cannot avoid Rule 13 sanctions by claiming
she was not acting with malicious or discriminatory purposes in bringing the claim;
nor can a party avoid Rule 13 sanctions by claiming she was not actually aware of
the facts that made her claim groundless when she has not made a reasonable
inquiry. See Monroe v. Grider, 884 S.W.2d 811, 819 (Tex. App.—Dallas 1994,
writ denied).
      Clack asserted a groundless allegation of collusion and trickery against
Judge Rucker and McClure, and she did not raise her suspicions to Judge Rucker
before she made the serious allegations in a written motion. There is evidence that
Clack ignored existing law that rendered her allegations inconsequential. Clack’s
failure to reasonably inquire into the facts supporting her claim of collusion before
she filed a motion that contained those allegations supported Judge Hatch’s finding
of bad faith.
      In addition, Clack’s decision to insert an allegation of improper conduct by
the trial court and opposing counsel into a footnote within a post-verdict motion is
the improper vehicle by which to raise the issue. Ethical violations are to be dealt
with as part of the grievance procedure established for dealing with unethical
                                         12
conduct. See Pannell v. State, 666 S.W.2d 96, 98 (Tex. Crim. App. 1984). Clack
argues that she purposefully did not initiate formal grievance procedures in an
effort to establish the absence of bad faith. To the contrary, Clack’s argument
demonstrates the gratuitous nature of the footnote and a lack of conviction in the
truthfulness of the allegations.
      Clack could have moved for judgment to conform to the jury verdict without
making the serious and groundless allegations that Judge Rucker and McClure
engaged in collusion and trickery. See Meek v. Bishop Peterson & Sharp, P.C.,
919 S.W.2d 805, 809–10 (Tex. App.—Houston [14th Dist.] 1996, writ denied)
(upholding Rule 13 sanction order against attorneys who made gratuitous
allegation of improper conduct in post-verdict motion).          Under these circum-
stances, we cannot conclude that the trial court’s finding of bad faith was a clear
abuse of discretion.     We must now ensure that the sanctions imposed were
appropriate and just. See Am. Flood Research, 192 S.W.3d at 583.
      C. Whether the Sanctions Imposed Were Appropriate and Just
      A trial court abuses its discretion if it imposes sanctions that are not
appropriate and just. TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d
913, 917 (Tex. 1991). To be appropriate and just, there must be a direct nexus
between the offensive conduct and the sanction imposed, and the sanction must not
be excessive. Id.; State Office of Risk Mgmt., 279 S.W.3d at 830.
      The sanction imposed upon Clack required her to pay $17,670 to McClure to
reimburse him, in part, for the attorney’s fees and costs incurred in prosecuting his
motion for sanctions.       Clack contends that the sanctions order fails the
appropriateness requirement because it was excessive.
      Rule 13 authorizes sanctions as are available under Rule 215.2(b), which
includes attorney’s fees. See TEX. R. CIV. P. 13, 215.2(b). Sanctions awarded as
attorney’s fees fall within the sound discretion of the trial court, and other courts of
                                          13
appeals in Texas have held that proof of the reasonableness and necessity of attor-
ney’s fees is not required when the fees are assessed as sanctions. Olibas v.
Gomez, 242 S.W.3d 527, 535 (Tex. App.—El Paso 2007, pet. denied); Glass v.
Glass, 826 S.W.2d 683, 688 (Tex. App.—Texarkana 1992, writ denied) (citing
Brantley v. Etter, 677 S.W.2d 503, 504 (Tex. 1984)).
      In his order on motion for sanctions, Judge Hatch found there was a direct
relationship between the sanction imposed and the offensive conduct because the
attorney’s fees awarded to Wollschlager were incurred by him because of Clack’s
allegations of trickery and collusion. Judge Hatch found that the sanction was not
excessive because Clack was ordered to pay a portion of Wollschlager’s fees and
costs, which the court found to be reasonable and necessary, for the filing and
prosecution of the motion for sanctions.
      We find no abuse of discretion in Judge Hatch’s findings. Given that the
award was limited to a portion of the attorney’s fees incurred as a result of
Wollschlager’s prosecution of the motion for sanctions, there was a direct nexus
between the sanction imposed and the offensive conduct. Moreover, Clack has
failed to demonstrate that the award was excessive. Before arriving at the sanction
amount, Judge Hatch heard McClure testify that he charged $300 per hour and
spent sixty-two and one-half hours on the motion for sanctions and the hearing.
The sixty-two and one-half hours included travel between El Paso and Midland,
trial preparation, review of the testimony, and preparation of pleadings. McClure
also had two paralegals work on the case for thirty-eight hours at a rate of $90 per
hour. Donaldson testified that her rate was $350 an hour; she had been practicing
law for less than nine years, while McClure has been licensed since 1971.
      Clack makes the argument that McClure and his staff spent an excessive
amount of time preparing and hearing the motion for sanctions, which essentially is
a reasonableness and necessity argument. In Glass v. Glass, the Sixth Court of
                                           14
Appeals upheld a sanction without any evidence of reasonableness and necessity of
attorney’s fees, while the Second Court of Appeals, in Stites v. Gillum, upheld an
award for fees that was less than the amount incurred by the attorneys. Stites v.
Gillum, 872 S.W.2d 786, 796–97 (Tex. App.—Fort Worth 1994, writ denied);
Glass, 826 S.W.2d at 688. The total cost of the attorney’s fees for McClure was
$18,750, while the cost for his paralegal work was $3,420 for a total of $22,170.
At the end of the sanctions hearing, the court awarded $17,670 as a sanction
against Clack and Donaldson. The sanctions imposed by Judge Hatch were in an
amount less than the total of attorney’s fees and costs due to McClure in
connection with the sanctions proceedings.
      In light of the testimony of Donaldson’s rate and the testimony of McClure
and the award by the trial court of less than the amount of attorney’s fees and costs
incurred by McClure, and given the lack of any contrary evidence, we cannot hold
that the amount awarded as sanctions was excessive. See Werley v. Cannon, 344
S.W.3d 527, 534–35 (Tex. App.—El Paso 2011, no pet.) (upholding sanctions
order for attorney’s fees based on testimony of trial counsel). We conclude that the
sanctions against Clack were appropriate and just and that Judge Hatch did not
otherwise abuse his discretion when he entered the sanctions order. We overrule
Clack’s sole issue on appeal.
                                V. This Court’s Ruling
      We affirm the judgment of the trial court.




                                                    MIKE WILLSON
December 19, 2013                                   JUSTICE
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.

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