Affirmed, Motion to Strike Denied, and Majority and Dissenting Opinions filed
May 16, 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 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
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
      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 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.

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       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.

       Therefore, I respectfully dissent.




                                           /s/       Tracy Christopher
                                                     Justice


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




       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.).

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