







Affirmed as Modified and Majority and Dissenting Opinions filed August
30, 2005








Affirmed as Modified and Majority and Dissenting
Opinions filed August 30, 2005.
 
 
In The
 
Fourteenth Court of Appeals
____________
 
NO. 14-03-00970-CV
____________
 
 
IN THE
INTEREST OF K.A.R.
 
______________________________________________________________________
 
On Appeal from County
Court at Law No. 2
Galveston County, Texas
Trial Court Cause No. 02FD1637
______________________________________________________________________
 
M A J O R I T Y   O P I N I O N




This appeal arises out of a
post-divorce dispute between former spouses concerning their minor child.  The ex-husband, who initially sued for
modification of the divorce decree, ultimately non-suited his claims, but not
before the ex-wife filed a counter-petition for modification and a motion for
sanctions against both her ex-husband and his trial counsel.  The trial court granted the ex-wife the
relief she sought in her counter-petition as well as $13,000 in attorney=s fees
and expenses as a sanction against the ex-husband and his counsel. We hold that
the trial court erred in awarding attorney=s fees
and expenses as child support and in awarding appellate fees not conditioned on
the ex-wife=s success on appeal.  Therefore, we modify the trial court=s
judgment to delete the award of fees and expenses as child support and to make
the award of appellate fees conditional on the ex-wife=s success
on appeal.  As modified, we affirm the
trial court=s judgment. 
I.  Factual and Procedural Background
In 1993,
Kenneth L. Richardson[1]
and appellee Lisa Richardson were divorced. 
The divorce decree appointed Lisa as sole managing conservator of their
minor son, K.A.R., and Kenneth as possessory conservator of K.A.R.  The decree ordered Kenneth to attend regular
counseling sessions conducted by Jose Cardena. 
In 2002, after K.A.R. expressed an interest in living with his father,
Kenneth filed a petition to modify the divorce decree to make Kenneth a joint
managing conservator and to give him the exclusive right to determine the
primary residence of K.A.R.  The trial
court signed temporary orders denying Kenneth=s request
for temporary modification of conservatorship, ordering a psychological
evaluation of Kenneth, Lisa, and K.A.R by Dr. Ferrell, and ordering them to
participate in counseling with Dr. Micheletti.




During a therapy session with Dr.
Micheletti on March 20, 2003, Kenneth indicated that he was considering
dismissing his petition to modify. 
Learning of this possibility through the therapy session, Lisa promptly
notified her lawyer, Edwin J. Terry, Jr., of this development.  On Monday, March 24, 2003, Lisa=s lawyer
called Kenneth=s lawyer, appellant H. Lynne
Clarke, to discuss Kenneth=s
position and to seek to avoid unnecessary fees and expenses.  Clarke told Terry that she believed Kenneth
was interested in settling the case, but that she had not spoken to him.  According to Terry, Clarke stated she would
call him back on March 25, 2003.  Though
Clarke may not have spoken to Kenneth as of March 24, she had received on March
20, a letter faxed by Kenneth, stating that he wished to drop his case against
Lisa and requesting that Aall
parties involved immediately cease and desist all actions.@  Clarke did not inform Terry of this
communication from Kenneth until April 1. 
Clarke did not call Terry back until 4:30 p.m. on Thursday, March 27,
2003, when she informed a legal assistant at Terry=s office
that Clarke still had not spoken to Kenneth, that Clarke would be out of her
office the next day, and that she did not expect to speak to her client until
the mediation scheduled for the following Monday, March 31.  Clarke was told that Terry, whose office was
in Austin, was out of town and that he would be traveling to Houston for the
Monday mediation.  Clarke told Terry=s legal
assistant she planned on working out a settlement at the mediation on
Monday.  
Lisa=s
Counter-Petition
On Friday, March 28, Lisa filed a
counter-petition to modify in which she requested the court to modify the
divorce decree to add as a condition for Kenneth=s access
to and possession of K.A.R. that Kenneth continue participating in family
counseling with Dr. Micheletti.  In her
motion-for-new-trial affidavit Clarke testifies to the following, among other
things:
!         Clarke finally contacted Kenneth by telephone during the
afternoon of March 28. 
!         Kenneth was distressed to learn of Lisa=s counter-petition but
agreed to stay in counseling with Dr. Micheletti.
!         During their March 28 conversation, Kenneth indicated his
unwillingness to attend the mediation.
!         Clarke advised Kenneth to attend the mediation and not to
nonsuit his petition; Clarke counseled Kenneth as to the impact of Lisa=s counter-petition. 
!         Kenneth agreed to talk with Clarke about the issue again over
the weekend.
!         On Sunday morning, March 30, Kenneth
again talked to Clarke and was adamant that he would not attend the
mediation.  Kenneth instructed Clarke to
notify Lisa=s counsel of this fact.  




                                                              Kenneth=s Nonsuit
On
Sunday, March 30, a legal assistant from Terry=s office
was in the office and noticed a faxed letter received at 12:04 p.m. that day
from Clarke.  The letter stated that
Kenneth was nonsuiting his petition to modify and would not attend the
mediation the next day.  Terry, however,
was already in Houston, and he was unable to confirm whether the mediation had
been canceled.  Terry stayed overnight in
Houston and prepared for the mediation.  
On Monday, March 31, Terry
learned that a similar message had been faxed to the mediator.  Neither Clarke nor Kenneth appeared for the
scheduled mediation.  Neither filed any
motion with the trial court seeking relief from attending the court-ordered
mediation.  However, on March 31, Kenneth
filed a nonsuit as to his petition to modify, acknowledging that Lisa=s
counter-petition was still pending.
Clarke=s Motion
to Withdraw
With trial on the
counter-petition already set for April 7, 2003, on April 1, Clarke filed a
motion to withdraw as Kenneth=s
counsel.  Clarke attached to this motion
Kenneth=s March
20, 2003, letter to her.  
Lisa=s Motion
for Sanctions




On April 3, Lisa filed a motion
for sanctions against Kenneth and Clarke, urging the court to grant relief
based on its inherent power to sanction. 
Lisa sought attorney=s fees
and expenses for attending the mediation that never occurred and for preparing,
filing, and having a hearing on the motion for sanctions.  Lisa alleged that the trial court should
sanction Kenneth and Clarke for Aengaging
in bad faith litigation practices@ and for
engaging in a Acourse of abusive conduct@ that
created needless effort and expense.  In
her motion-for-new-trial affidavit, Clarke states that she received notice on
April 3 that the trial court would hear the motion for sanctions on April 7.  On April 4, Kenneth filed a motion for
continuance.  
Trial
Court=s Rulings
Kenneth and Clarke did not appear
for either the trial or the sanctions hearing on April 7.  The trial court denied Kenneth=s motion
for continuance and heard evidence.  The
trial judge then announced in open court that he was granting Lisa=s
counter-petition and granting sanctions against Kenneth and Clarke. 
On April 27, Kenneth committed
suicide.  Clarke filed a suggestion of
Kenneth=s death,
and shortly thereafter the trial judge signed a written order granting Lisa=s
counter-petition, awarding $37,000 in attorney=s fees
and expenses as child support, awarding appellate attorney=s fees,
and ordering sanctions against Kenneth and Clarke for $13,000 in fees and
expenses.  Kenneth and Clarke filed a AMotion to
Vacate Default Judgment and Motion for New Trial,@ which
was overruled by operation of law.
II.  Analysis
A.        Did
the trial court abuse its discretion in denying Kenneth=s motion for continuance?
In his
first issue, Kenneth asserts that the trial court abused its discretion in
denying his motion for continuance.  On
February 17, 2003, the trial court set this case for trial at 9:00 a.m. on
April 7, 2003 in Galveston. On April 4, 2003, Kenneth filed a motion for
continuance.  The only ground asserted in
the motion was that Clarke had two other cases set for trial at 10:00 a.m. on
April 7, 2003, in the 311th District Court in Houston.  Kenneth attached to his motion for
continuance scheduling orders from these cases showing that on January 14,
2003, these cases were set for trial on April 7, 2003.  The trial court denied the motion for
continuance on April 7, 2003.




On appeal, Kenneth first relies
upon Smith v. Babcock & Wilcox Const. Co., Inc., 913 S.W.2d 467
(Tex. 1995).  However, this case did not
involve an appeal from a denial of a motion for continuance; rather, it
involved an appeal from the trial court=s denial
of a motion to reinstate following a dismissal for want of prosecution based on
the failure of the plaintiffs and their attorneys to appear at trial.  See Smith, 913 S.W.2d at 468.  In the instant case, Kenneth was the
counter-defendant.  The trial court
denied Kenneth=s motion for continuance and
proceeded with trial in the absence of Kenneth and his lawyer.  This case does not involve a dismissal for
want of prosecution or a motion to reinstate. 
Furthermore, unlike in Smith, there is no evidence in this record
that Kenneth=s counsel was actually in trial
in another case when the trial court called the instant case to trial, and
there is no evidence in this record that Clarke believed the trial court would
grant a continuance based on her being in trial in another court.  See id. at 467B68
(basing decision on attorney=s
actually being in trial in another court when trial court called case to trial
and based on attorney=s
reasonable explanation of how he understood the trial court to have previously
stated that it would grant a continuance if attorney actually was in trial in
another case when trial court called the case to trial).  Therefore, we conclude the Smith case
is not on point.  See id. 




Kenneth=s main
argument is based on Rule 10 of the Regional Rules of Administration of the
Second Administrative Judicial Region.  See
Sec. Admin. Jud. Reg., Reg. R. Admin. 10(b).  This rule states that, if an attorney is
assigned to trial in two courts for the same day and if the courts do not agree
on the priority between the cases, then priority  will be determined by a set of rules that
gives priority, among other things, to cases that were set for trial
first.  See id.  The record contains nothing to suggest that
the trial court reached any agreement with the 311th District Court.  Because Clarke=s Houston
trial settings were set first, these rules would give priority to the Houston
settings over the setting in this case.[2]  See id.  Kenneth cites a case in which the Texas
Supreme Court conditionally granted mandamus relief based in part on a trial
court=s
violation of an earlier version of this same rule.  See Dancy v. Daggett, 815 S.W.2d 548,
549B50 (Tex.
1991). 




The Dancy case is not on
point because in that case  Dancy=s lawyer
promptly notified the trial court of the conflicting settings.  See id. at 549; Spearman v. Texas
Dept. of Corr., 918 S.W.2d 23, 24B25 (Tex.
App.CEastland
1996, no writ) (distinguishing Dancy because lawyer in Spearman
did not promptly notify the trial court of the conflicting settings).  In this case, Kenneth=s motion
for continuance does not state that he notified the trial court of this
conflict, and on appeal, Kenneth states that he notified the trial court early
on April 7, 2003 that one of the Houston cases would be tried that
morning.  Rule 10 of the Regional Rules
of Administration for the Second Administrative Region states that an attorney
assigned to trial in two different cases on the same day has a duty to notify
the affected courts of the conflicting trial settings as soon as they are
known.  See Sec. Admin. Jud. Reg., Reg. R. Admin. 10(b)(1);
see also Harris Cty. Fam. R. 8.7
(stating A[i]t is the duty of counsel to
report promptly to the court immediately upon learning of a conflicting
engagement that might preclude that counsel=s
availability for trial.  Failure to do so
may result in sanctions@).  In her motion-for-new-trial affidavit, Clarke
states that on February 19, 2003, she received the trial court=s order
setting this case for trial at 9:00 a.m. on April 7, 2003.  Clarke did not file a motion for continuance
until 4:14 p.m. on Friday, April 4, and Kenneth brought this conflict to the
trial court=s attention no earlier than at
8:47 a.m. on April 7, when Clarke=s office
left a message via voicemail for the trial court.  Unlike Dancy=s lawyer,
Clarke failed to notify the trial court of the conflicting settings as soon as
she was aware of them, which was no later than February 19, 2003.  See Dancy, 815 S.W.2d at 549.  By violating Rule 10, Clarke deprived the
trial court of the opportunity of working out the conflicting setting with the
presiding judge of the 311th District Court in Harris County.  See Sec.
Admin. Jud. Reg., Reg. R. Admin. 10(b)(2) (stating that A[i]nsofar
as practicable, Judges should attempt to agree on which case has priority . . .@).  Therefore, we conclude the trial court did
not abuse its discretion in denying a continuance based on Kenneth=s
assertion of a conflicting trial setting that allegedly had priority under Rule
10.  See Spearman, 918 S.W.2d at
24B25
(distinguishing Dancy and holding trial court did not abuse its
discretion in denying continuance based on conflicting trial setting in
criminal case in another county in part because attorney for nonappearing party
did not promptly bring the conflicting setting to the trial court=s
attention upon learning about it). 
Accordingly, we overrule Kenneth=s first
issue.
B.        Did
the trial court err in awarding appellate attorney=s fees based on the lack
of a specific request?
In his
second issue, Kenneth first asserts the trial court erred in awarding appellate
attorney=s fees
because Lisa did not specifically plead for them.  Lisa requested attorney=s fees in
her counter-petition, but she did not specifically request appellate attorney=s
fees.  Kenneth cites no cases holding
that a general request for attorney=s fees is
insufficient to support an award of appellate fees.  Because no special exceptions were sustained
as to Lisa=s counter-petition, we construe
that petition liberally and in Lisa=s favor.  See Horizon/CMS Healthcare Corp. v. Auld,
34 S.W.3d 887, 897 (Tex. 2000).  Under
this liberal construction, we conclude that Lisa sufficiently requested
appellate attorney=s fees by
her general request for attorney=s fees in
her counter-petition.  See, e.g.,
Superior Ironworks, Inc. v. Roll Form Prods., Inc., 789 S.W.2d 430, 431
(Tex. App.CHouston [1st Dist.] 1990, no
writ) (noting that a general prayer for attorney=s fees is
sufficient to authorize an award of appellate fees).  Accordingly, we overrule Kenneth=s second
issue to the extent it is based on Lisa=s failure
to specifically request appellate attorney=s fees.




C.        Did the trial court err in awarding
appellate attorney=s fees because the award
of these fees was not made conditional on the requesting party=s success on appeal?
 
In his second issue, Kenneth also
asserts that the trial court erred in awarding appellate attorney=s fees
not conditioned on Lisa=s success
on appeal.  In her brief, Lisa concedes
error in this regard and agrees that this court should reform the judgment to
condition the award of appellate fees on her success on appeal.  Accordingly, we sustain Kenneth=s issue
to this extent, and we modify the trial court=s
judgment to condition the award of appellate attorney=s fees on
Lisa=s success
on appeal.
D.        Did the trial court err in awarding attorney=s fees
and expenses as child support?
In his third issue, Kenneth
asserts that the trial court erred in awarding the $37,000 in attorney=s fees
and expenses as child support.  On
appeal, Lisa concedes error as to this issue and agrees that the proper remedy
is to modify the judgment to delete all characterization of attorney=s fees or
expenses as child support.  Accordingly,
we sustain Kenneth=s third
issue and modify the trial court=s
judgment to strike all parts of the judgment that allow enforcement of any
amount thereunder as child support.  
E.        Did the trial court err in granting the motion for sanctions?
In their fourth and fifth issues,
Kenneth and Clarke assert the trial court abused its discretion in granting
Lisa=s motion
for sanctions for the following reasons: 
(1)       Lisa did not serve her motion for
sanctions on Kenneth personally, even though the motion sought to hold him in
contempt.
(2)       The trial court violated Texas Rules of
Civil Procedure 21 and 21a as well as constitutional guarantees of due process
by holding a hearing on Lisa=s motion with four days= notice rather than six
days= notice, as allegedly
required by Rule 21.
(3)       Lisa did not verify the motion for
sanctions.




(4)       Although the trial court awarded
sanctions based on its inherent power, there was no evidence at the sanctions
hearing that showed conduct by Kenneth or Clarke that significantly interfered
with the trial court=s exercise of one of its
core functions.[3]
 
1.  Personal Service of Sanctions Motion
Though Lisa sought to hold
Kenneth in contempt as part of the relief requested in her motion for
sanctions, she did not request this relief at the sanctions hearing and the
trial court did not grant any contempt judgment.  Personal service on Kenneth might well be
necessary to support a contempt judgment against him, but Kenneth and Clarke
cite no case requiring personal service merely because the movant requested,
though did not receive, a contempt judgment. 
Because the trial court did not render a contempt judgment, personal
service was not required.  See Ex
parte Blanchard, 736 S.W.2d 642, 643 (Tex. 1987) (stating that, in
constructive contempt cases, due process requires that contemnor be personally
served with show-cause order or have actual knowledge of the contents of such
an order, otherwise the contempt judgment is void).  Accordingly, we reject the notion that lack
of personal service of the sanctions motions provides grounds for error.
2.  Notice of the Sanctions Hearing




Kenneth and Clarke also assert
that, although they received four days= notice
of the April 7 sanctions hearing, they were entitled to six days= notice
under Rules 21 and 21a of the Texas Rules of Civil Procedure.  See Tex.
R. Civ. P. 21, 21a.  Kenneth and
Clarke assert that, by failing to provide six days= notice
of the sanctions hearing, the trial court abused its discretion and violated
their constitutional rights to due process. 
Notably, this is not a case in which parties were sanctioned and
received no notice of the sanctions hearing. 
Kenneth and Clarke received four days= notice
of the sanctions hearing.  Presuming for
the sake of argument that the three-day notice period under Rule 21 was
extended to six days by Rule 21a, Rule 21 still provides that the trial court
may shorten the notice period.  See Tex. R. Civ. P. 21; Buruato v. Mercy
Hosp. of Laredo, 2 S.W.3d 385, 387B88 (Tex.
App.CSan
Antonio 1999, pet. denied).  The trial
court=s action
in conducting a hearing on four days= notice
rather than six days= notice
will not be disturbed on appeal unless, under the circumstances, the trial
court abused its discretion in shortening the notice period.  See Buruato, 2 S.W.3d at 387B88. 




In her motion-for-new-trial
affidavit, Clarke states that on April 3, 2003, she received a fax with Lisa=s motion
for sanctions and notice of a hearing to be held thereon on April 7, 2003.  Although the following afternoon Kenneth
filed a motion for continuance as to the trial setting on April 7, 2003,
neither Kenneth nor Clarke ever filed a motion to continue or reset the
sanctions hearing, nor did they file any objection, prior to the sanctions
hearing, based on insufficient notice. 
On appeal, Kenneth and Clarke do not discuss the trial court=s ability
to shorten the notice period.  After
reviewing the record and the circumstances present in this case, we conclude
that, even if the rules ordinarily would have required six days= notice,
the trial court did not abuse its discretion or violate Kenneth and Clarke=s due
process rights in shortening the notice period to four days.  See Massingill v. Swanner, No.
05-04-00918-CV, 2005 WL 518965, at *1B2 (Tex.
App.CDallas
Mar. 7, 2005, no pet. h.) (mem. op.) (holding trial court did not abuse its
discretion in shortening notice period for temporary-injunction hearing to one
day); Buruato, 2 S.W.3d at 387B88
(holding trial court did not abuse its discretion in shortening notice period
for motion from six days to four days); Petit v. Laware, 715 S.W.2d 688,
689B91 (Tex.
App.CHouston
[1st Dist.] 1986, writ ref=d n.r.e.)
(holding trial court did not abuse its discretion in shortening notice period
for motion to quash from three days to one day); Standard Sav. Ass=n v.
Cromwell, 714 S.W.2d 49, 50B51 (Tex.
App.CHouston
[14th Dist.] 1986, no writ) (holding trial court did not abuse its discretion
in shortening the notice period to no prior notice of hearing on motion to
withdraw deemed admissions that was granted just before trial began).  Accordingly, we reject this notice argument
as grounds for overturning the sanctions.
3.  Lack of Verification or Affidavit on the
Sanctions Motion
Kenneth and Clarke also assert
that the trial court erred in granting sanctions because Lisa did not verify
the motion for sanctions or attach an affidavit thereto.  They cite no cases in support of this
proposition.  Though Lisa did not verify
her motion for sanctions or attach a supporting affidavit, the trial court held
a hearing and received evidence on this motion. 
Motions for sanctions may be and often are verified or supported by
affidavits, but there is no per se requirement that they be filed in this
fashion.  Lisa=s failure
to verify her sanctions motion or to attach an affidavit to it does not make
the trial court=s award
of sanctions an abuse of discretion.  
4.  Interference with the Trial Court=s Core
Functions
Kenneth and Clarke further assert
that there is no evidence showing that they engaged in conduct that
significantly interfered with the trial court=s
exercise of one of its core functions. 
For the trial court to have exercised its inherent power to sanction
Kenneth and Clarke, there must have been some evidence that their conduct
significantly interfered with the trial court=s
legitimate exercise of one of its core functions.  See McWhorter v. Sheller, 993 S.W.2d
781, 788B89 (Tex.
App.CHouston
[14th Dist.] 1999, pet. denied).  The
trial court based the sanctions on its findings of the following conduct by Kenneth
and Clarke:
(1)
      Kenneth=s failure to appear at
trial;
(2)
      Clarke=s failure to timely notify
Lisa=s counsel of Kenneth=s desire to nonsuit his
petition to modify after Kenneth=s March 20, 2003 faxed
letter;




(3)
      Kenneth=s failure to complete a
court-ordered psychological evaluation;[4]
and 
(4)
      The unilateral cancellation of a
court-ordered mediation without adequate notice.
If even one of these grounds constitutes
conduct that significantly interferes with a core function of the court and
there is legally sufficient evidence to support it, we must affirm the trial
court=s
order.  At the outset, we note that there
are potential problems with sanctioning Kenneth and Clarke for some of this
conduct.  




Although the trial court was
acting within its discretion in proceeding to trial in the absence of Kenneth
and Clarke and in granting Lisa all of the relief sought in her counter-petition,
the mere failure of Kenneth and Clarke to appear for trial should not expose
them to sanctions.  A defendant who fails
to appear for trial may be subject to a judgment following trial in his
absence, but the worst-case scenario for such a defendant should be an adverse
judgment for all relief sought in the plaintiff=s
pleadings.  See Sharpe v.
Kilcoyne, 962 S.W.2d 697, 698B702 (Tex.
App.CFort
Worth 1998, no pet.) (affirming sanctions against defendant that were limited
to a post-answer default judgment as to liability and damages after defendant
moved from Texas to Canada, refused to accept correspondence from court and
counsel regarding the lawsuit, and failed to appear at two deposition settings,
a sanctions hearing, and a trial setting). 
Generally, failure to appear at trial does not interfere with the trial
court=s
exercise of one of its core functions. 
Likewise, there might be potential conflicts with the attorney-client
relationship and the attorney-client privilege if an attorney were sanctioned
for failure to promptly notify opposing counsel of her client=s desires
regarding the case, even if those desires include dismissing the client=s
claims.  
Nonetheless, under the applicable
standard of review, there is legally sufficient evidence in the record to
support the trial court=s
determination that Kenneth and Clarke unilaterally canceled and failed to
attend a court-ordered mediation without adequate notice.[5]
See City of Keller v.
Wilson, __ S.W.3d
__, __, No. 02-1012, 2004 WL 1366509, *2B14 (Tex. June 10, 2005) (setting out
legal sufficiency standard of review); Roberts v. Rose, 37 S.W.3d 31, 33B35 (Tex. App.CSan Antonio 2000, no pet.) (affirming
sanctions against attorney for failing to appear at a court-ordered mediation).
 By doing so, they violated a
court order, signed February 17, 2003, in which the trial court expressly
directed the parties and their counsel to Aappear
and attend@ the mediation.[6]  Included within a trial court=s core
functions is the management of its docket and the issuance and enforcement of
its orders.   Indeed, it is the office of
the court to issue orders andCwhen and
if the court deems it appropriateCto
vacate, rescind, or modify its orders. 
Lawyers and litigants do not have the authority to issue orders, nor do
they have the authority to vacate, rescind, or modify court orders.  When Clarke chose to cancel the court-ordered
mediation, she effectively usurped the court=s role
and displaced the court as decision maker. 
By taking it upon herself to countermand that which the court had
ordered, Clarke interfered with a core function of the court.  




In addition to this act of
interference, Clarke failed to obey the court=s command
to appear for mediation.  The failure to
comply with a trial court=s order
to participate in mediation constitutes significant interference with the court=s core
functions and, therefore, can support an award of sanctions imposed under the
court=s
inherent power to sanction.  See Kutch
v. Delmar Coll., 831 S.W.2d 506, 510B12 (Tex.
App.CCorpus
Christi 1992, no writ) (stating that violation of a court order relating to the
court=s
management and administration of a pending case generally will be significant
interference with a core function).  The
evidence in the record shows that the trial court ordered both the parties and
their counsel to attend the mediation and that, despite this express directive,
Clarke did not appear as ordered, nor did she offer any explanation or excuse
for her failure to attend notwithstanding her client=s refusal
to do so.  When Clarke elected not to
attend the mediation as ordered by the court and instead chose to unilaterally
cancel it, the trial court had not granted (and she had not sought) relief from
the order compelling her attendance, nor did she have the agreement of all
other parties to postpone or reschedule the mediation.  At no point did Clarke ask to be excused from
compliance with the court=s order
and at no point did the court excuse her non-compliance.  Although the dissent correctly notes that
Clarke could not control Kenneth=s
behavior, Clarke is accountable for her own conduct and her unexcused failure
to comply with the trial court=s order
is legally sufficient evidence to support the sanctions.  See id. 




The dissent concludes that the
usurpation of the court=s role
and the failure to comply with the court=s order
constitute no evidence of significant interference with the trial court=s core
functions, reasoning that these were events beyond Clarke=s
control.  The dissent states that Aas soon
as Clarke was aware of Kenneth=s
unequivocal refusal to attend, she attempted to notify those involved with the
mediation,@ and that, because Kenneth
refused to attend the mediation despite Clarke=s advice
to do so, Clarke could Ado
nothing more in such a situation except withdraw from the representation.@  We respectfully disagree.  There were other alternatives Clarke could
have pursued that would not have involved the usurpation of the court=s duties
or the violation of the court=s
order.  For example, Clarke could have
filed a motion asking the trial court to cancel or postpone the mediation.  Pursuing this option would have allowed the
court, whose office it is to rule on such matters, to decide whether its
previous order should be modified and, if so, how and under what
conditions.  Likewise, Clarke could have
attended the mediation as ordered and attempted to resolve the remaining
issues.  She indicated in her affidavit
that Kenneth was willing to agree to the relief sought in Lisa=s
counter-petition and, presumably, Clarke had authority to settle on that
basis.  But even without settlement
authority, Clarke could have attended the mediation and worked toward a
resolution of the matters in dispute.  By
pursuing this option, Clarke would have been in the compliance with the court=s order
even if her client was not.




The dissent points to facts that
tend to mitigate the circumstances surrounding Clarke=s failure
to appear as ordered, stating, for example, that Clarke attempted to notify
those involved with the mediation as soon as she was aware of Kenneth=s Aunequivocal
refusal to attend.@  We acknowledge that Clarke was in a difficult
situation and that she made some effort to mitigate inconvenience and expense
after deciding on Sunday not to attend the mediation the court had ordered for
the following day.  Nonetheless, eight
days before her Friday, March 28, conversation with Kenneth, Clarke received a
fax from him in which he stated he no longer wished to participate in this
case.  Clarke also knew that opposing
counsel would be coming from out of town for the Monday, March 31
mediation.  In this context, the trial
court reasonably could have concluded that Clarke should have resolved the
issue of Kenneth=s
attendance at the mediation during her phone conference with him on Friday,
March 28.  The trial court was not
required to limit its consideration of the facts to what Clarke did to
mitigate; rather, the trial court was free to consider all of the circumstances
surrounding Clarke=s failure
to comply with its order in determining whether sanctions were appropriate,
including that Clarke had learned of Kenneth=s
unwillingness to attend the mediation earlier in the week and did not seek to
reschedule at that time, that she did not appear as ordered, and that she opted
to cancel the mediation herself rather than seek the court=s
permission. 
We acknowledge that another trial
court might well have declined to impose sanctions under the circumstances of
this case, but that is no answer to the issue before us.  Clarke=s
challenge to the sanctions order is that there is no evidence to support it and
this is the legal standard against which we must measure the propriety of the
trial court=s order.   
Under these circumstances and
based on the trial court=s findings,
we conclude  there is legally sufficient
evidence that Kenneth and Clarke engaged in conduct that significantly
interfered with the trial court=s
legitimate exercise of one of its core functions.  See Kings Park Apartments, Ltd. v. Nat.
Union Fire Ins. Co. of Pittsburgh, Pa., 101 S.W.3d 525, 541 (Tex. App.CHouston
[1st Dist.] 2003, pet. denied) (holding there was legally sufficient evidence
of conduct that significantly interfered with the trial court=s
legitimate exercise of one of its core functions); Kutch, 831 S.W.2d at
510B12.  On this basis, we reject their challenge to
the trial court=s
sanctions.[7]
Having rejected all of the
arguments of Kenneth and Clarke under their fourth and fifth issues, we
overrule these issues.[8]
F.        Did
the trial court abuse its discretion in denying Kenneth and Clarke=s motion for new trial?




In their
seventh issue, Kenneth and Clarke assert that the trial court abused its
discretion in denying their motion for new trial because this motion allegedly
satisfied the Craddock standard.  See
Ivy v. Carrell, 407 S.W.2d 212, 213B15 (Tex.
1966); Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex.
1939).  The trial court did not hold a
hearing on the motion for new trial, which was overruled by operation of
law.  In analyzing this issue, we must
determine whether the trial court abused its discretion in impliedly determining
that Kenneth and Clarke=s motion
for new trial failed to present the following: (1) facts showing that their
failure to appear at trial and the sanctions hearing was not intentional or the
result of conscious indifference on their part but was due to a mistake or
accident, and (2) facts which in law would constitute a meritorious defense.[9]  See Ivy, 407 S.W.2d at 214; Vickery
v. Texas Carpet Co., Inc., 792 S.W.2d 759, 761 (Tex. App.CHouston
[14th Dist.] 1990, writ denied).  In
determining whether there is intentional disregard or conscious indifference,
the trial court examines the knowledge and acts of the parties who failed to
appear.  See Vickery, 792 S.W.2d
at 761.  A failure to appear is not
intentional or due to conscious indifference merely because it was deliberate;
rather, it must also be without justification. 
See Smith, 913 S.W.2d at 468. 
Proof of such justificationCaccident,
mistake, or other reasonable explanationCnegates
intent or conscious indifference.  See
id. 
Clarke=s
motion-for-new-trial affidavit states the following:
!         On March 28, Clarke notified Kenneth of Lisa=s counter-petition and
counseled Kenneth as to its impact.
!         Contrary to Clarke=s advice to Kenneth, he
insisted on nonsuiting his petition on March 31, and not attending the
court-ordered mediation scheduled for that date.  
!         Clarke filed her motion to withdraw on April 1, because Kenneth
Awas adamant that he could
not go further in the case.@  




!         Although Clarke was able to resolve one of the two Harris County
cases set for trial on April 7, she could not resolve the other one, so she
filed a motion for continuance for Kenneth on April 4, based on the Regional
Rules of Administration, which appeared to give preference to the Harris County
case.
!         On April 7, at 8:47 a.m., Clarke=s office called the trial
court and left a voicemail message stating that Clarke had filed a motion for
continuance and stating that she Awas in fact on [her] way
to trial in Harris County.@  
In the body of their motion for
new trial, Kenneth and Clarke state that Clarke=s legal
assistant called the trial court at 8:47 a.m. on April 7 to Ainform
the Court that Ms. Clarke was in trial in Harris County.@  However, in a seven-page, single-spaced affidavit,
Clarke never actually states that she was in trial in Harris County when the
trial court conducted the trial and sanctions hearing in this case.  At one point in the appellants= brief,
Kenneth and Clarke state that Clarke was in trial in Harris County; however, to
support this proposition, they cite only Clarke=s
affidavit testimony that her office left a message that she was on her way to
trial in Harris County.  The fact that
her office left such a message does not necessarily mean that Clarke was
actually in trial in the Harris County case on the morning of April 7.  In their argument under the seventh issue,
Kenneth and Clarke also state that Aas is the
frequent situation in Family Law, cases are set for trial but end up settling.@  




Regardless of whether Clarke=s Harris
County case settled just before it was scheduled to go to trial, Kenneth and
Clarke=s motion
for new trial does not assert facts showing a reasonable explanation for their
deliberate failure to appear on April 7.[10]  As to the sanctions hearing, Kenneth and
Clarke did not file a motion to continue or reset this hearing, nor did they
file any pre-hearing objection to the trial court conducting this hearing on
April 7.  Therefore, their motion for new
trial does not show that they lacked intent or conscious indifference.  See Vickery, 792 S.W.2d 761B62
(holding trial court did not abuse its discretion as to first prong of Craddock
in case in which attorney with conflicting trial settings failed to present a
motion for continuance to the trial court); see also Carpenter v. Cimarron
Hydrocarbons Corp., 98 S.W.3d 682, 686 (Tex. 2002) (stating that, outside
of the default-judgment context, Craddock does not apply to situations
in which the procedural rules afford the party a remedy, for example the
opportunity to seek a continuance).  
As to the trial setting, this
case is different from Smith.  See
Smith, 913 S.W.2d at 467B68.  The motion for new trial in this case and the
attached affidavit do not assert that Clarke was in trial in Harris County on
the morning of April 7, 2003.  In Smith,
the movants for reinstatement asserted that their counsel was actually in trial
in another county when the trial court called the case to trial.  See id.  The movants= counsel
in Smith explained how he reasonably believed the trial court, in
previously denying their motion for continuance, had stated that the court
would grant a continuance if in fact the movants= counsel
was in trial in the other court when it called the movants= case to
trial.  See id.  Further, the movants= counsel
sent a letter to the trial court memorializing this understanding.  See id. 
Kenneth and Clarke=s motion
for new trial and Clarke=s
affidavit in support thereof do not assert that Clarke believed that her motion
for continuance, which was filed on the eve of trial, would be granted.  The record does not contain any letter from
Clarke memorializing her understanding, if any, that the trial court in this
case would grant a continuance if she were actually in trial in the 311th
District Court on the morning of April 7. 
Furthermore, the motion for new trial and Clarke=s affidavit
do not assert that Clarke was unable to arrange for another attorney to handle
the Harris County matter for her on April 7, so that she could be present in
the trial court in this case.  On this
record, we conclude that the trial court did not abuse its discretion in
impliedly concluding that Clarke lacked justification for her deliberate
failure to appear on April 7.  See id.;
Vickery, 792 S.W.2d 761B62.




On appeal, Kenneth and Clarke
argue that, in their motion for new trial, they showed a lack of intent and
lack of conscious disregard by demonstrating that Clarke tried to comport with
the Regional Rules of Administration of the Second Administrative Judicial
Region in assessing whether to file a motion for continuance and in deciding
which trial to attend. However, as discussed in Section II. A., above, the
trial court did not abuse its discretion in impliedly determining that Clarke
violated these rules and deprived the trial court of an opportunity to work out
the conflicting setting with the presiding judge of the 311th District Court in
Harris County.  See Sec. Admin. Jud. Reg., Reg. R. Admin. 10(b)(1)
(stating that lawyers who have conflicting trial settings have a duty to notify
the affected courts of the conflicting trial settings as soon as they are
known).  Therefore, the trial court did
not abuse its discretion by impliedly determining that these rules do not
provide a reasonable explanation or justification for Clarke=s
deliberate failure to appear at the trial and sanctions hearing on April 7,
2003.  




Furthermore, we disagree with
Kenneth and Clarke=s
assertion on appeal that their motion for new trial sets forth facts
constituting a meritorious defense to the trial court=s finding
of sanctionable conduct by them as well as defenses based on allegedly improper
notice and violation of due process.  As
discussed in Section II. E., above, the trial court had the ability to exercise
its inherent power to sanction Kenneth and Clarke, and Kenneth and Clarke=s motion
for new trial does not set forth facts setting up a defense to the sanctionable
nature of their conduct regarding the mediation and the court-ordered
psychological evaluation.  Their motion
for new trial does not set forth facts showing that the trial court erred in
shortening the notice period for the sanctions hearing from six to four days or
showing that the trial court violated their due process rights.  See Ivy, 407 S.W.2d at 214B15
(holding trial court did not err in denying motion for new trial because movant
did not set forth facts that in law constitute a meritorious defense).  Accordingly, we overrule the seventh issue.[11]
III.  Conclusion




The trial court did not err in denying Kenneth=s motion
for continuance.  Lisa=s
counter-petition supports an award of appellate attorney=s
fees.  The trial court did not abuse its
discretion in assessing monetary sanctions against Kenneth and Clarke based on
Lisa=s failure
to personally serve Kenneth or her failure to verify her motion for
sanctions.  The trial court did not abuse
its discretion in shortening the notice period as to the sanctions hearing from
six to four days; and therefore, the trial court did not violate Texas Rules of
Civil Procedure 21 and 21a or constitutional guarantees of due process.  The evidence presented at the sanctions
hearing is legally sufficient to show that the conduct by Kenneth and Clarke
significantly interfered with the trial court=s
exercise of one of its core functions. 
The trial court did not abuse its discretion in denying a new
trial and in impliedly determining that Kenneth and Clarke=s motion
for new trial failed to present either facts showing that their failure to
appear on April 7 was not intentional or the result of conscious indifference,
but was due to a mistake, accident, or facts which in law would constitute a
meritorious defense.     Nonetheless, Lisa concedes error as to the
trial court=s failure to condition the award
of appellate attorney=s fees on
her success on appeal and as to the trial court=s awarding
of attorney=s fees and expenses as child
support.  Accordingly, we modify the
trial court=s judgment (1) to condition all
awards of appellate attorney=s fees on
Lisa=s success
on appeal, and (2) to strike all parts of the judgment that allow enforcement
of any amount thereunder as child support. 
As modified, we affirm the trial court=s
judgment.
 
/s/        Kem
Thompson Frost
Justice
 
Judgment rendered and Majority and Dissenting Opinions filed August 30,
2005.
 
Panel consists of Chief Justice Hedges and Justices Frost and Guzman.
(Guzman, J., dissenting.)
 
 




[1]  Kenneth L.
Richardson died after the trial in the court below but before the trial court
signed its judgment.  In this opinion,
for ease of reference, we refer to both Kenneth L. Richardson and the Estate of
Kenneth L. Richardson as AKenneth,@ unless
otherwise indicated.


[2]  We note that
Lisa=s counsel asserted at the hearing on the motion for
continuance that, in October of 2002, Clarke actually had agreed to an April 7
trial setting in this case.  Lisa=s counsel appears to have argued that, but for
dilatory conduct by Clarke, the trial court would have set this case for trial
before the Houston cases were set. 
However, on appeal, we presume for the sake of argument that the Houston
cases were set first. 


[3]  Kenneth and
Clarke do not assert that the trial court abused its discretion in determining
that there was good cause to sanction them. 
Kenneth and Clarke do not challenge the trial court=s determination that their conduct constituted bad
faith litigation practices that caused Lisa to incur additional attorney=s fees and expenses. 
Nor do Kenneth and Clarke challenge the trial court=s determination that $13,000 is a just and appropriate
sanction for their conduct in this regard. 
Accordingly, we do not reach these issues.  


[4]  The record
reflects that on March 26, 2003, Dr. Ferrell sent a letter to the parties
stating that he had been unable to complete the psychological evaluation
ordered by the trial court because he had not been able to schedule a home
visit with Kenneth, despite leaving numerous messages for Kenneth and sending
him a fax.  Because of these difficulties
and because Dr. Ferrell was scheduled to be out of town from March 30 through
April 6, Dr. Ferrell indicated that he would not be able to have the
psychological evaluation completed by April 7, 2003.  


[5]  There is also
legally sufficient evidence that Kenneth failed to complete the psychological
evaluation ordered by the trial court.  See
City of Keller v. Wilson, __ S.W.3d __, __, No. 02-1012, 2004 WL
1366509, *2B14 (Tex. June 10, 2005). 


[6]  In the same
order, the trial court instructed the mediator to advise the court, upon
completion of the mediation, Awhether the parties and their counsel appeared as
ordered, and whether a settlement resulted.@ 


[7]  Kenneth and
Clarke have not challenged the sanctions based on the trial court=s failure to find that their conduct significantly
interfered with the trial court=s legitimate exercise of one of its core
functions.  However, even if they had
done so, there is sufficient evidence in the record to imply a finding to this
effect under Texas Rule of Civil Procedure 299.  See Tex.
R. Civ. P. 299.


[8]  The sixth
issue asserted by Kenneth and Clarke concerning the trial court=s failure to file findings of fact and conclusions of
law is now moot based on this court=s
abatement order and the trial court=s
subsequent issuance of findings of fact and conclusions of law.


[9]  We need not
reach and do not discuss the third requirement of the Craddock standardCthat granting a new trial would not occasion a delay
or otherwise work an injury upon Lisa.  See
Ivy, 407 S.W.2d at 214.


[10]  In their
seventh issue, Kenneth and Clarke argue they lacked intent or conscious
indifference solely based on Clarke=s
conflicting trial setting in Harris County. 
In any event, Clarke=s affidavit did not show that Kenneth was innocent in
failing to appear; rather, Clarke=s
affidavit shows that, despite notice to him (through Clarke) of the trial
setting and sanctions hearing on April 7, Kenneth, deliberately and without reasonable
explanation, failed to appear on April 7. 


[11]  Even if
Kenneth and Clarke had asserted generally that the trial court erred in denying
their motion for new trial, based on a review of the issues presented therein,
we still would conclude that the trial court did not abuse its discretion in
denying this motion.  


