Affirmed as Modified and Majority and Concurring Opinions filed January 15, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-06-00364-CV
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JOSE THOTTUMKAL and
SARAMMA THOTTUMKAL, Appellants
V.
LARRY McDOUGAL, Appellee
On Appeal from the 268th District Court
Fort Bend County, Texas
Trial Court Cause No. 05-CV-142505
C O N C U R R I N G O P I N I O N
Regarding the Thottumkals= contention that McDougal had the burden to prove a lack of due diligence on their part, section 10.002(c) provides:
The court may award to a party prevailing on a motion under this section the reasonable expenses and attorney=s fees incurred in presenting or opposing the motion, and if no due diligence is shown the court may award to the prevailing party . . . out of pocket expenses incurred or caused by the subject litigation.
Tex. Civ. Prac. & Rem. Code Ann. ' 10.002(c) (emphasis added). The parties have cited, and we have found, no Texas appeals court opinion addressing which party has the burden of proof under section 10.002(c) on the issue of due diligence.[1]
Section 10.002(a) allows a party to move for sanctions based on a violation of section 10.001 alone. Section 10.002(c), quoted above, then essentially allows a greater sanction to be imposed if no due diligence is shown. The Thottumkals= interpretation of this provision would treat a showing of no due diligence as an additional violation or element that must be proved by the movant, i.e., in addition to a violation of an express provision of section 10.001 (such as pleading a claim that a reasonable inquiry would have disclosed to be groundless). However, no provision of Chapter 10 refers to a violation of anything other than section 10.001, and that section does not include, or refer to, a lack of due diligence. Under these circumstances, the due diligence standard is not an additional violation or element, but, instead, a type of exemption or safe harbor, which allows a nonmovant to reduce the scope of the sanctions that can potentially be imposed if the nonmovant shows that his violation of section 10.001 occurred despite (i.e., rather than because of) his exercise of due diligence.
/s/ Richard H. Edelman
Senior Justice
Judgment rendered and Majority and Concurring Opinions filed January 15, 2008.
Panel consists of Chief Justice Hedges and Justices Fowler and Edelman.*
[1] The Thottumkal=s post-argument brief cites the statement in Low, that the party seeking sanctions bears the burden of overcoming the presumption of good faith, as meaning that McDougal had the burden to show a lack of due diligence. See 221 S.W.3d at 614. However, that statement in Low refers to the good faith standard in Texas Rule of Civil Procedure 13, which does not pertain to the due diligence or other standards set forth in sections 10.001 or 10.002 of the Civil Practice and Remedies Code. Moreover, notwithstanding section 22.004 of the Texas Government Code, the Texas Supreme Court may not amend or adopt rules that are in conflict with Chapter 10 of the Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. ' 10.006.
* Senior justice Richard H. Edelman sitting by assignment.