L{I1RSE 4
        s:
         Nl) REMAi’ I); Opinion issued No’eniher 27, 2012.




                                             In ‘[he
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                       3Fiftb 1iitrirt uf cxzui at Ia11a
                                       No. 05-1 1-00469-CV


                                 STEVE SELL, Appellant

                                               V.

   PETERS FINE ART, LTD. A/K/A/ GERALD PETERS GALLERY, Appelice


                    On Appeal from the 95th Judicial District Court
                                Dallas County, Texas
                        Trial Court Cause No. DC-10-00721-D


                                          OPINION
                        Before Justices Bridges, Richter, and Lang
                               Opinion By Justice Richter


       Steve Sell appeals a final judgment awarding sanctions in favor of’ Peters Fine Art,

Ltd. In four issues, Sell complains the trial judge erred in granting sanctions for Sell’s

assertion of a DTPA claim. We reverse the trial court judgment and remand this case to the

trial court for further proceedings.


Background


       Steve Sell (“Sell”) bought a painting by NC. Wyeth titled The Sheriff from Gerald
Peters (iallcr    .   Inc. (“Peters’’) flr   I 5 milhon, Peters stated that the   painting   had appeared

on the cover of the August 1, 1908 edition of the Saturday Evening Post, A year after the

purchase. Sell lound out the painting had in fact not been on the cover of the Saturday

Evening   Post.   Sell sent an email to Peters to inquire about their earlier statement and Peters

responded they relied on the only published catalog of N.C. Wyeth’s works available at the

time of the sale,


       Sell filed suit against Peters for violation of the Texas l)eceptivc Trade Practices Act,

breach of contract, fraud, and negligent misrepresentation. After adequate time for

discovery, Peters filed a summary judgment and set it for hearing. Prior to the summary

judgment hearing, Sell nonsuited his claims.


       The court issued its order of nonsuit on December 13th and four days later, Peters

filed its motion for sanctions. The motion for sanctions claimed Sell failed to make

reasonable inquiry beibre filing the State lawsuit, the lawsuit was either groundless and

brought in bad faith or groundless and brought for the purpose of harassing Peters, and the

legal contentions in Sell’s petition were not warranted by existing law. Due to a mix-up in

Sell’s counsel’s office, the notice of the hearing on the motion for sanctions never made it

onto counsel’s calendar. Consequently, Sell’s counsel was not at the hearing on the motion

for sanctions. When Sell’s counsel was absent at the hearing, the trial judge called counsel’s

office, while on the record, inquiring about counsel’s lack of presence. After the phone call,

the trial court commenced the hearing with only Peters’ counsel present. Following the
hearing, the trial court issued a three-page “final judgment” which awarded sanctions to

Peters in the amount of $83,656.35.

       When Sell’s counsel received the final judgment and discovered his failure to appear,

he filed plaintiff’s verified motion for reconsideration of order imposing sanctions and

requested a rehearing. Peters followed with defendant’s response and then Sell filed

plaintiff’s motion to vacate final judgment or, in the alternative, motion to modifr final

judgment. The trial court held a hearing on the motion to vacate and on March 16,2011,

vacated the final judgment and issued an amended final judgment reducing the amount of

sanctions awarded.

       Sell contends the trial court’s order was not specific enough to support sanctions

under chapter 10 of the Texas Civil Practice and Remedies Code. Peters responds that the

district court’s order adequately described the sanctionable conduct.

Analysis

       We review a trial court’s imposition of sanctions under an abuse of discretion

standard. UnVund CCR Partners v. Villa, 299 S.W.3d 92,97 (rex. 2009). An assessment

of sanctions will only be reversed if the trial court acted without reference to any guiding

rules and principles, such that its ruling was arbitrary or unreasonable. Id.

       Chapter 10 of the civil practice and remedies code provides for sanctions when

parties advance frivolous pleadings and motions. Section 10.005 provides “A court shall




                                             —3-
describe in an order imposing a sanction under this chapter the conduct the court has

determined violated Section I 0.001 and explain the basis for the sanction imposed.” Ti:x,

Civ, PRAC, & REM, CorF. ANN.        10.005 (West 2002), The use of the word “shall” in the

statute indicates that the requirement for particularity in the sanction order is mandatory.

Univ. ofTex, at Arlington v, Bishop. 997 S.W.2d 350, 355 (Tex. App—Ft. Worth 1999, pet.

denied).


       The court entered an amended final judgment on March 16th, 2011. The court’s

March 16th order does not state the underlying facts on which the court relied in imposing

sanctions, nor does it explain the reasons warranting the monetary sanctions imposed.

Instead, the order only generally recites:


              ** *



               It is ORDERED, ADJUDGED and DECREED that plaintiffs claims
       in this proceeding are dismissed without prejudice, pursuant to the Court’s
       Order of nonsuit.

              It is further ORDERED, ADJUDGED and DECREED that Defendant
       Peters Fine Art Ltd., a/k/a/ Gerald Peters Gallery shall have and recover of
       and from Plaintiff Steve Sell the sum of $7,500 as reasonable and necessary
       attorney’s fees for the plaintiffs violation of TEX. CIV. PRAC. & REM.
       CODE § 10.00 1 (1), (3) relating to the plaintiffs claims brought against the
       defendant pursuant to the Deceptive Trade Practices Act.

                It is further ORDERED, ADJUDGED and DECREED that Defendant
       Peters Fine Art Ltd., a/k/a Gerald Peters Gallery shall have and recover of and
       from Plaintiff Steve Sell the sum of $1,500 as reasonable litigation expenses
       for the plaintiffs violation of TEX. CIV. PRAC. & REM. CODE § 10.001
       (1), (3) relating to the plaintiffs claims brought against the defendant pursuant
       to the Deceptive Trade Practices Act.
                    It is further ORDERLiI). ADJUDGED and DECREED that all costs of
          Court    arc taxed against the plaintiff
                    ** *


          This order does not meet the specificity requirement of section 10.005. The final

judgment ofDecember 29 was three pages long, had details describing the conduct on which

sanctions where granted, and awarded sanctions in the amount of $83,656.35. However,

after the trial court’s second hearing on the motion for sanctions, the court’s amended fmal

judgment stated, 9lic Court’s Final Judgment of December 29, 2010 is vacated and this

Amended Final Judgment is issued in its stead.” The amended final judgment decreased the

amount of sanctions awarded by $74,656.35. The language of the March 16 amended final

order, nor a review ofthe hearing transcripts explains the difference in the amounts awarded

in the twojudgrnents) We conclude that it was error for the trial court to enter the December

29 sanctions order without specifically detailing the sanctionable conduct and explaining the

basis for the sanction imposed.

Conclusion

         Concluding the trialjudge abused his discretion in failing to set forth facts or analysis

in the judgment to support an award of sanctions, we reverse the thai court’s judgment and

this case is remanded for further proceedings consistent with this opinion.




     We note our grave reservation to condone the award of sanctions against an attorney for filing a suit with multiple claims
     t
and asldng for more in dnges than the s atutoty limit of a single clam The appropriate vehicle to challenge the causes of
action plead would have been for the Defendant to file a special exception. Tax. R. Cw. P.91. In our review ofthe record, we do
not find where special exceptions were filed in this case.




                                                             -5-
                     a
                     MARTIN RICHTER
                     JUSTICE
1 10469F.P05




               -6-
                                 (cart of Apprale
                        lFiftI! Oitrict of cxas at Oallas
                                       JUDGMENT
SI1iVE SELL, Appellant                              Appeal from the 95th Judicial District Court
                                                    of Dallas County, Texas.
No. 05-1 1-00469-CV          V.                     (Tr.CLNo. DC-I 0-00721 -D).
                                                    Opinion delivered by Justice Richter,
PETERS FINE ART, LTD. A/K/A                         Justices Bridges and tang participating
GERALD PETERS GALLERY, Appellee

        In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and this cause is REMANDED to the trial court for further proceedings. It is
ORDERED that appellant STEVE SELL recover his costs of this appeal from appellee PETERS
FINE ART, LTD. A/KIA GERALD PETERS GALLERY. The clerk of the District court is
directed to release the full amount of the balance of the cash deposit in lieu of cost bond to
STEVE SELL


Judgment entered November 27, 2012.




                                                   JUSTICE
