COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00418-CV
JASMINE MONTGOMERY APPELLANT
V.
WANDA MATTUCCI APPELLEE
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FROM THE 431ST DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION 1
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Jasmine Montgomery appeals from a final summary judgment for Wanda
Mattucci. In six issues, Montgomery contends that the trial court imposed death
penalty sanctions against her, that those sanctions were excessive, that the trial
court did not first test lesser sanctions, that the trial court’s imposition of such
sanctions violated her due process rights, that she was not the offending party,
and that the trial court should have awarded her sanctions against Mattucci and
1
See Tex. R. App. P. 47.4.
Mattucci’s attorneys. We modify the trial court’s judgment in part and affirm it as
modified.
Procedural Background
Montgomery sued Mattucci in December 2009 alleging personal injury
damages from a car wreck and asserting negligence, negligence per se, and
gross negligence claims. Montgomery also filed an affidavit of indigency,
seeking to proceed without prepayment of costs, which the trial court denied.
Montgomery’s counsel, Sonya Chandler-Anderson, nevertheless set the matter
for a hearing. Mattucci’s counsel, Heidi Whitaker, filed a “special appearance,” in
which Mattucci––who had not yet been served with citation but to whom
Chandler-Anderson had been sending documents filed in the case––attempted to
challenge Montgomery’s indigency claim without making a general appearance
and, thus, waiving citation. At the hearing, Chandler-Anderson referred to
Whitaker as “opposing counsel.” The trial judge again denied Montgomery’s
attempt to proceed as an indigent. Both Whitaker and Chandler-Anderson
signed the order denying indigency as to form. Montgomery appealed the ruling
to this court, and we dismissed the appeal because of the nonappealable,
interlocutory nature of the order. Montgomery v. Matucci, No. 02-10-00127-CV,
2010 WL 3075597, at *1 (Tex. App.––Fort Worth Aug. 5, 2010, no pet.) (mem.
op.).
After this court issued its mandate in the indigency appeal, Chandler-
Anderson attempted to set yet another hearing in the trial court on the affidavit of
2
indigency, but neither she nor Montgomery appeared. 2 Montgomery then filed in
the trial court another motion to reconsider the indigency ruling. The certificate of
service states that the document was sent to “Mattucci by and through her
attorney of record, . . . Whitaker.” Whitaker filed another “special appearance” on
Mattucci’s behalf, making the same challenge to the indigency claim but also
contending that Montgomery’s suit was frivolous under chapter 13 of the civil
practice and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. § 13.001
(West 2002). Whitaker also appeared at the hearing on Montgomery’s motion to
reconsider in an attempt to argue the special appearance. The trial court would
not allow Whitaker to argue against indigency without making a general
appearance; she said Mattucci had not authorized her to do so. The trial court
nevertheless accepted the filing as an amicus brief. At the conclusion of the
February 18, 2011 hearing, the trial court denied Montgomery’s motion to
reconsider.
Although Chandler-Anderson knew that Whitaker was representing
Mattucci in the matter, after the February 2011 hearing, Chandler-Anderson
began sending documents filed in the case––including discovery and a change of
2
Substitute counsel for Mattucci appeared because Whitaker had a conflict.
He told the trial court that Whitaker’s firm had not received notice of the hearing
date and that Whitaker had discovered it fortuitously by checking the docket
settings.
3
address notice––directly to Mattucci. 3 Despite the fact that she had not yet been
served with citation, Mattucci filed an answer in the suit on April 7, 2011. On
April 22, 2011, Mattucci served discovery requests, including requests for
admissions, on Montgomery; the certificate of service shows that they were
mailed to the proper address for Chandler-Anderson, but the fax confirmation
shows that they were sent to Chandler-Anderson’s prior fax number. 4 When
Whitaker contacted Chandler-Anderson by phone on May 2, 2011 to determine
why Chandler-Anderson was sending documents directly to Mattucci, 5 she
learned Chandler-Anderson’s new contact information. Whitaker re-sent
3
Although she had served Whitaker in January 2011 with her motion to
reconsider, in a handwritten objection to the special appearance filed on the day
of the February 18, 2011 hearing, Chandler-Anderson did not serve Whitaker
with the objection and instead certified that “no other party has been served and
is entitled to notice.”
4
Chandler-Anderson contends that she hand delivered a change of
address, phone number, and fax number to Whitaker at the February 18, 2011
hearing, but Whitaker claims she never received it, noting that it was file-stamped
after the hearing that day. Whitaker did say that she received a copy of the
handwritten objection to special appearance filed that same day before the
hearing began.
5
Chandler-Anderson claimed in her response to Mattucci’s motion for
summary judgment that she had no notice that Whitaker was “officially”
Mattucci’s counsel until May 2, 2011. In later pleadings, Chandler-Anderson
accused Whitaker of attacking her and accusing her of contacting Mattucci
directly, to which Chandler-Anderson responded by “remind[ing] . . . Whitaker
that . . . Mattucci was pro se and that . . . Whitaker could not proceed on this
case until she had filed an appearance pursuant to the court[’]s instruction.”
Chandler-Anderson’s position was that all of the communications were properly
sent to Mattucci––despite the fact that Chandler-Anderson had served at least
one document on Whitaker before the February 2011 hearing––because “there
was not [an] attorney of record recognized by the court on file for” Mattucci.
4
Mattucci’s discovery requests, including the requests for admissions, via U.S.
mail and fax. Chandler-Anderson claims she received a “courtesy copy” of the
discovery by fax on May 5, 2011 and that she received the discovery by mail on
May 6, 2011.
Mattucci moved for summary judgment in June 2011, contending that
Montgomery had failed to timely respond to requests for admissions and that
based on the deemed responses, Mattucci was entitled to summary judgment.
The requests for admissions included the following:
• The attached Exhibit “A” is a true and correct copy of the police report
filed by the investigating police officers regarding the accident the basis
of this suit.
• Plaintiff Jasmine Montgomery had no injury caused by the accident.
• Plaintiff Jasmine Montgomery was found 100% at fault in the property
damage subrogation.
• Plaintiff Jasmine Montgomery was noted as failing to yield the right of
way on the police report.
• Plaintiff Jasmine Montgomery’s claims are frivolous and without merit.
• Defendant Wanda Mattucci is entitled to summary judgment on all
counts.
The attached police report, which listed Montgomery as driving unit 1, stated,
“Unit 1 failed to yield the right of way to unit 2.” Additionally, attached to the
motion was a fax receipt showing that the discovery requests were faxed to
Chandler-Anderson on May 2, 2011.
5
Mattucci filed a motion for sanctions two weeks after filing the motion for
summary judgment. In it, she alleged that “[d]espite [Montgomery’s] having filed
several pleadings in this case starting on March 8, 2010, and several telephone
conversations between Plaintiff’s attorney and Defense Counsel, Plaintiff’s
attorney persists in directing pleadings, discovery and other communications to
everyone but the Defense attorney of record,” including Mattucci herself.
According to the motion, this last direct contact with Mattucci was on
May 1, 2011. Mattucci also alleged that Montgomery had answered requests for
disclosures on May 9, 2011 but that she did not answer the request for
admissions or other discovery until June 8, 2011; even then, she served only
Mattucci’s insurance carrier rather than her counsel. According to Mattucci,
Chandler-Anderson had engaged in “a pattern of egregious and improper
conduct.” Mattucci also pointed out specific instances in which Montgomery
answered discovery in ways directly contradictory to the allegations in her own
petition.
Mattucci asked for (1) stipulations of certain facts, (2) a directive to
Montgomery not to oppose her defenses of assumption of the risk and
contributory negligence, (3) an order refusing to permit Montgomery to support
gross negligence and negligence per se claims, (4) an order striking all or part of
Montgomery’s pleadings, (5) an order overruling all of Montgomery’s objections
to Mattucci’s discovery requests, (6) an order deeming Mattucci’s requests for
admissions, (7) an order prohibiting Montgomery from propounding requests for
6
admissions on Mattucci and limiting other discovery to ten questions each, (8) an
order requiring Montgomery to appear for deposition no later than
September 15, 2011, and (9) a monetary penalty. The trial court set a hearing on
the motion for July 15, 2011.
Chandler-Anderson filed an unverified motion for continuance, stating that
she had two cases set in Harris County for the date of the sanctions hearing.
The trial court denied this motion, but Whitaker nevertheless rescheduled the
hearing until July 29, 2011 as a courtesy. On July 21, 2011, Chandler-Anderson
filed another unverified motion for continuance, contending that due to an illness,
her doctor had placed her on medical leave until August 9, 2011; she stated that
she had sought another attorney to take over her other cases but not this one
because of its then-current posture. 6 Mattucci opposed the motion, and the trial
court denied it.
After a hearing on July 29, 2011, which Montgomery and Chandler-
Anderson did not attend, the trial court granted Mattucci’s sanctions motion in its
entirety. The trial court made several stipulations of fact; estopped Montgomery
6
At a later hearing regarding sanctions, Chandler-Anderson asserted to the
trial court that her assistant attached a doctor’s note to this motion; however,
after the trial court told Chandler-Anderson that nothing was attached to the
motion, she admitted that the note had not been attached due to a clerical error
and offered to give her sworn testimony that she was out on medical leave.
However, she also said that the reason her assistant could not attach a sworn
affidavit was because Chandler-Anderson “was out.” She also admitted that she
was “ineffective and not properly prepared” that day and that she did not “know
what’s really going on with” Montgomery’s file.
7
from adducing, entering, or otherwise developing any evidence or testimony
opposing Mattucci’s defenses of assumption of the risk and contributory
negligence; estopped Montgomery from adducing, entering, or otherwise
developing any evidence or testimony supporting her own claims of gross
negligence and negligence per se; struck all claims in Montgomery’s current or
future pleadings related to property damage, gross negligence, and negligence
per se; overruled all of Montgomery’s objections to Mattucci’s discovery requests;
ordered Montgomery to respond to Mattucci’s discovery requests within two
weeks; deemed the requests for admissions admitted; prohibited Montgomery
from propounding any requests for admissions on Mattucci; limited requests for
production and interrogatories on Mattucci to ten or fewer requests; and ordered
Montgomery to appear for an oral deposition in Denton County no later than
September 15, 2011.
The trial court found as follows:
[E]ach of the sanctions ordered below has a direct relationship to the
offensive conduct and the sanctions are not excessive. The sanctions
ordered are necessary to address Plaintiff’s repeated patterns of conduct in
failing to properly serve opposing counsel with documents and responses, in
failing to sign discovery responses and requests, in setting hearings on
motions before filing pleadings and pulling the same hearings without notice
to opposing counsel, and in answering discovery in a manner inconsistent
with documents and information already filed with the Court.
The trial court also ordered “Plaintiff” to pay $3,000 to Whitaker.
Montgomery filed a motion to reconsider. In it, she alleged that the court
was showing favor to Whitaker by, for example, failing to send Chandler-
8
Anderson notice of the denial of her second motion for continuance, failing to
grant it when over twenty other courts had granted similar requests, and hearing
the July 29, 2011 hearing ex parte. Although she did not ask the trial court to
withdraw the deemed admissions, she argued that she had timely responded to
them. At a hearing on the motion to reconsider, the trial court gave Chandler-
Anderson the option of leaving the sanctions order as-is or having a new
sanctions hearing. She chose to have a new hearing, which was scheduled for
October 10, 2011.
Before the October hearing, Montgomery filed a response to Mattucci’s
motion for summary judgment. In it, she contended that there was a genuine
issue of material fact on the following issues:
• whether Mattucci failed to control her speed;
• whether Mattucci was operating her vehicle at a high rate of speed;
• whether Mattucci failed to keep a proper look out;
• whether Mattucci failed to operate her vehicle safely;
• whether Mattucci failed to timely assess traffic conditions;
• whether Mattucci failed to operate her vehicle in a safe and reasonable
manner;
• whether Mattucci failed to take evasive action to avoid the collision;
• whether Mattucci failed to reduce her speed as warranted;
• whether Mattucci failed to avoid a preventable accident;
• whether Mattucci failed to timely assess traffic conditions; and/or
9
• whether Mattucci failed to act as a reasonable and prudent person would
under the same or similar conditions, circumstances, or both.
Montgomery also contended that an adequate time for discovery had not passed,
that she had timely responded to Mattucci’s discovery within thirty days of
May 5, 2011, that Whitaker had engaged in “malicious interference with the
judicial process of” her claims by filing the motion for special appearance
objecting to the indigency affidavit, and that Chandler-Anderson did not know that
Mattucci was represented by an attorney in the matter until May 2, 2011.
On September 22, 2011, Montgomery filed a motion for sanctions in which
she alleged that Mattucci’s special appearance objecting to her affidavit of
indigence was a “false pleading” and that Chandler-Anderson had never received
a copy of it from Whitaker.
At the second sanctions hearing in October 2011, Chandler-Anderson
argued that the requests for admissions were mailed to Mattucci’s insurance
carrier rather than Whitaker as the result of a clerical error. However, the trial
court noted that despite knowing this for three and one-half months, Chandler-
Anderson had nevertheless failed to send the discovery directly to Whitaker. The
trial court reiterated its sanctions order against Montgomery, increasing the
monetary award to $6,000, and denied Montgomery’s motion for sanctions
against Whitaker. Additionally, the trial court granted Mattucci’s motion for
summary judgment.
10
Nonmonetary Sanctions Against Montgomery
In her first three issues, Montgomery contends that the trial court abused
its discretion by imposing excessive, death penalty sanctions against her without
first testing the efficacy of lesser sanctions. Although Montgomery does not
directly challenge the summary judgment, one of her arguments under these
three issues is that the trial court should have withdrawn the deemed admissions.
Montgomery acknowledges that the summary judgment hinged on the
deemed admissions and that if the trial court was correct in concluding that the
admissions were deemed, then the summary judgment was proper. However,
she contends that a “harmless” clerical error should not prevent her from
pursuing her claims.
Applicable Law
Rule 198.2 provides that “[t]he responding party must serve a written
response [to requests for admissions] on the requesting party within 30 days
after service of the request.” Tex. R. Civ. P. 198.2(a). If a response is not timely
served, the request is considered admitted without the necessity of a court order.
Tex. R. Civ. P. 198.2(c). Matters deemed admitted under the rule are
conclusively established as to the party making the admission unless the court
permits the party to withdraw or amend the admission. Tex. R. Civ. P. 198.3.
The court may allow a party to withdraw deemed admissions if the party
shows good cause for the withdrawal or amendment . . . and . . . the
court finds that the parties relying upon the responses and deemed
admissions will not be unduly prejudiced and that the presentation of
11
the merits of the action will be subserved by permitting the party to
amend or withdraw the admission.
Id.
The Texas Supreme Court has held as follows:
Requests for admission are intended to simplify trials. They
are useful when “addressing uncontroverted matters or evidentiary
ones like the authenticity or admissibility of documents.” . . . .
As we have previously observed, requests for admission
should be used as “a tool, not a trapdoor.” And when admissions
are deemed as a discovery sanction to preclude a presentation of
the merits, they implicate the same due process concerns as other
case-ending discovery sanctions. Thus, in Wheeler we required a
showing of “flagrant bad faith or callous disregard for the rules” to
substantiate a summary judgment based solely on deemed
admissions.
....
In Wheeler, we described the requisite demonstration of good
cause and undue prejudice. Good cause, we said, “is established
by showing the failure involved was an accident or mistake, not
intentional or the result of conscious indifference.” Undue prejudice
we found to depend “on whether withdrawing an admission or filing a
late response will delay trial or significantly hamper the opposing
party’s ability to prepare for it.”
Marino v. King, 355 S.W.3d 629, 632–33 (Tex. 2011) (citations omitted); see also
TransAm. Natural Gas Corp. v. Powell, 811 S.W.2d 913, 918 (Tex. 1991) (orig.
proceeding) (“Sanctions which are so severe as to preclude presentation of the
merits of the case should not be assessed absent a party’s flagrant bad faith or
counsel’s callous disregard for the responsibilities of discovery under the rules.”).
12
Discussion
Here, even a cursory review of the record reveals actions by Chandler-
Anderson that indicate, at the worst, a lack of candor with the court and Whitaker
or, at the very least, a lack of familiarity with the case, extreme disorganization,
and a lack of awareness of procedural rules so as to amount to “flagrant bad faith
or . . . callous disregard for the responsibilities of discovery under the rules.”
Chandler-Anderson, who is also Montgomery’s mother, spent over a year
attempting to prove Montgomery’s indigency status, despite the trial court’s
having denied the right to proceed without prepayment of filing fees at least three
times. Before the February 2011 indigency hearing, Chandler-Anderson sent the
Denton County district clerk a letter stating that she was “alarmed and
concern[ed]” that the clerk had not sent the citation “last year.” Although counsel
criticized the district clerk for not doing so, counsel showed a lack of diligence in
monitoring the status of the case. Cf. Boyattia v. Hinojosa, 18 S.W.3d 729, 734
(Tex. App.––Dallas 2000, pet. denied) (holding, in context of limitations
determination, that counsel’s failure to act during three-month time period
following clerk’s failure to issue citation showed lack of diligence as a matter of
law).
Although Whitaker had represented Mattucci in matters related to
Montgomery’s claim since at least March 2010 (and––as evidenced by the
certificate of service on her January 2011 motion to reconsider––Chandler-
Anderson was well aware of such representation), Chandler-Anderson began
13
serving documents after the February 2011 hearing directly on Mattucci. Her
argument that Mattucci was pro se after that hearing because Whitaker declined
to make a general appearance for Mattucci (who had not been served, which
Chandler-Anderson also knew) is not well-taken. See Tex. R. Civ. P. 120 (“The
defendant may, in person, or by attorney, or by his duly authorized agent, enter
an appearance in open court. Such appearance shall be noted by the judge
upon his docket and entered in the minutes, and shall have the same force and
effect as if the citation had been duly issued and served as provided by law.”);
see also Tex. Disciplinary R. Prof’l Conduct 4.02(a) (“In representing a client, a
lawyer shall not communicate or cause or encourage another to communicate
about the subject of the representation with a person . . . the lawyer knows to be
represented by another lawyer regarding that subject, unless the lawyer has the
consent of the other lawyer or is authorized by law to do so.” (emphasis added)).
Despite Whitaker attaching an electronic confirmation to Mattucci’s motion
for summary judgment showing that the requests for admissions and other
discovery were sent to Chandler-Anderson’s correct fax number at 9:59 a.m. on
May 2, 2011, Chandler-Anderson persisted to state in responsive pleadings and
arguments to the court that she did not receive the fax until May 5, 2011. She
also continued to assert that the responses were timely when they were
postmarked June 6, 2011 and mailed to Mattucci’s insurance carrier rather than
14
Whitaker. 7 Despite being informed via the motion for summary judgment and
motion for sanctions filed in June 2011 that Whitaker had never received the
answers to the requests for admissions from Chandler-Anderson, Chandler-
Anderson never served her discovery responses on Whitaker and never explicitly
asked the trial court to withdraw the deemed admissions.
During the second sanctions hearing, Chandler-Anderson represented to
the trial court that although her assistant had inadvertently mailed the answers to
the requests for admissions to Mattucci’s insurance carrier, her assistant followed
up by sending them to Whitaker; Chandler-Anderson claimed she had a certified
mail receipt evidencing this follow-up mailing. But the certified mail receipt
Chandler-Anderson showed the trial court was for Montgomery’s answers to
requests for disclosures, which Chandler-Anderson sent on May 9, 2011. When
the trial court asked for a cover letter to show what was sent, Chandler-Anderson
provided a cover letter for the responses to the requests for disclosures. The trial
court finally pointed out that Chandler-Anderson had no evidence that she had
ever followed up by mailing the answers to the requests for admissions to
Whitaker, and Chandler-Anderson admitted there was no such evidence. When
she again stated, “I responded to the discovery requests sanctions,” the trial
court answered, “You keep saying that, but there’s nothing in the world other
7
Although the certificate of service on the response indicates that it was
mailed June 5, 2011, one day late, the postmark on the envelope mailed to the
insurance carrier shows that the response was mailed on June 6, 2011.
15
than you saying it that says you did. Your paperwork doesn’t add up, your
certificate of written discovery doesn’t add up. It’s never been filed. I can’t just
take your word for it.”
Although having been given a second opportunity to defend the sanctions
motion, Chandler-Anderson showed up at the hearing unprepared and
disorganized, misrepresented to the trial court that she had served responses to
the requests for admissions on Whitaker, and accused Whitaker of “lying” and
“manipulating.” She blamed her clerical assistant for the “disarray of [her] office,”
stated that she had not anticipated that she would have to appear with proof that
she had sent the responses to Whitaker, and offered to answer the discovery “at
this point in time.” The trial court responded,
[D]ating back to the motion for summary judgment three-and-a-half
months ago, the accusation has been crystal clear that no discovery
was ever propounded. So I don’t know how you can stand here and
say you didn’t know this issue was going to come up today when
looking at the June 14th motion for summary judgment, based upon
alleged failures to respond to requests for disclosure [sic] and
requests for admissions most importantly, that you didn’t think that
issue would come up. That’s what all this is based upon.
Based on our review of the entire record, we conclude and hold that the
trial court did not abuse its discretion by refusing to withdraw the deemed
admissions. The record shows that Chandler-Anderson’s failure to timely
respond to the requests for admissions was part of a pattern of conduct that
16
showed flagrant bad faith and callous disregard for the rules of discovery 8 in a
case in which the prospect of any recovery was dubious to begin with. 9 We
overrule Montgomery’s first through third issues. 10
Monetary Sanctions Against Montgomery
In her fourth and fifth issues, Montgomery contends that the trial court
abused its discretion by imposing sanctions directly against her rather than
Chandler-Anderson. As with her first through third issues, to the extent she
complains about sanctions affecting her ability to present her case, we need not
8
The trial judge said on the record that he was granting the sanctions
“because of the gross violations of the rules of professional conduct, the gross
violation of the Rules of Civil Procedure, the gross violations of all local rules[,]
and the comedic state that this case is in as a result of” Chandler-Anderson’s
deficiencies. In addition to the conduct evidenced in the appellate record,
Chandler-Anderson’s brief before this court is rife with typos––spelling and
grammar errors––to the point that it is difficult to follow. Counsel’s conduct in this
appeal and in the underlying case is so concerning to this panel that we are
referring the matter to the State Bar grievance committee. A copy of this opinion
and the appellate record shall be sent to the Texas State Bar’s Chief Disciplinary
Counsel’s Office. See Tex. Rules Disciplinary P. R. 5.02; see also Tex.
Disciplinary R. Prof’l Conduct 1.01(a), 3.01, 3.02, 3.03, 3.04(c)(1)–(2), (5),
4.02(a), 5.03(a), 8.03(a).
9
The evidence showed that the police report from the accident faulted
Montgomery and that both parties’ insurance carriers denied coverage, finding
that Montgomery was responsible for the accident. In addition, Montgomery’s
pleadings themselves supported the conclusions in the police report.
10
We need not address her issues to the extent they complain about death
penalty sanctions under rule 215 because the summary judgment was based on
the deemed admissions, not the rule 215 sanctions. See Tex. R. App. P. 47.1;
see also Alexander v. State, No. 02-10-00302-CV, 2011 WL 3836452, at *4 (Tex.
App.––Fort Worth Aug. 31, 2011, pet. denied) (mem. op.) (noting that “deemed
admissions are the consequence of missing a procedural deadline, not a
sanction for discovery abuse”).
17
address them. See Tex. R. App. P. 47.1. However, to the extent she complains
about the $6,000 monetary sanction, we address the issues.
Although at the second sanctions hearing the trial court told Chandler-
Anderson, “I’m still making up my mind about what figures I’m going to put in
here to sanction you,” the sanctions order states, “Plaintiff is ORDERED to pay
monetary sanctions in the amount of $6,000.00 to Defense Counsel.” [Emphasis
added.]
The trial court must at least attempt to determine whether the offensive
conduct is attributable only to counsel, only to the party, or to both. TransAm.
Natural Gas Corp., 811 S.W.2d at 917; Richmond Condos. v. Skipworth
Commercial Plumbing, Inc., 245 S.W.3d 646, 661 (Tex. App.––Fort Worth 2008,
pet. denied) (op. on reh’g). A party must bear some responsibility for its
counsel’s discovery abuses when it is or should be aware of counsel’s conduct
and the violation of the discovery rules. TransAm. Natural Gas Corp., 811
S.W.2d at 917; Richmond Condos., 245 S.W.3d at 661. Ultimately, the sanction
imposed by the trial court must relate directly to the abuse found. TransAm.
Natural Gas Corp., 811 S.W.2d at 917; Richmond Condos., 245 S.W.3d at 661.
We have already discussed Chandler-Anderson’s conduct issues.
Although there is some evidence in the record that Montgomery worked for
Chandler-Anderson––also her mother––as a legal assistant, there is nothing in
the record showing that Montgomery herself worked on the case or that she was
responsible for the discovery and clerical errors. The trial court’s ire was clearly
18
directed at counsel’s behavior, including her deficiencies in pleading, discovery,
and her lack of candor with the court. Although possible, nothing in the record
shows that Montgomery directed, approved, or was aware of counsel’s
deficiencies in this case. Because “a party should not be punished for counsel’s
conduct in which it is not implicated apart from having entrusted to counsel its
legal representation,” imposing this monetary sanction against Montgomery
herself is an abuse of discretion. See Richmond Condos., 245 S.W.3d at 661;
see also TransAm. Natural Gas Corp., 811 S.W.2d at 917. Accordingly, we
conclude and hold that the trial court should not have ordered monetary
sanctions against Montgomery rather than her counsel.
Mattucci argues that we should modify the judgment to impose the
monetary sanctions against Chandler-Anderson because the trial court orally
pronounced at the hearing that he intended to impose the monetary sanctions
against Chandler-Anderson. But in a civil case, when oral pronouncements
conflict with a written judgment, the written judgment prevails. Seasha Pools,
Inc. v. Hardister, 391 S.W.3d 635, 640 (Tex. App.––Austin 2012, no pet.); see
Moore v. Jet Stream Invs., Ltd., 315 S.W.3d 195, 204 (Tex. App.––Texarkana
2010, pet. denied). Thus, we sustain Montgomery’s fourth and fifth issues in part
as to the $6,000 in monetary sanctions and will modify the trial court’s judgment
to delete the $6,000 in monetary sanctions.
19
Sanctions Motion Against Whitaker
In her sixth issue, Montgomery contends that the trial court abused its
discretion by denying her motion for sanctions against Whitaker and two other
lawyers in the same firm. Her main contention is that Whitaker filed the special
appearance falsely and in bad faith because it was an inappropriate vehicle to
challenge Montgomery’s claim of indigency. Whitaker contends that her use of
the term “special appearance” was simply a misnomer of pleadings and that
there is no evidence her attempted challenge to the indigency affidavit on
Mattucci’s behalf was made in bad faith.
Rule 145(d) allows a defendant to challenge a plaintiff’s attempt to proceed
without prior payment of costs. Tex. R. Civ. P. 145(d). Because Mattucci had
not yet been served with citation, Whitaker was attempting to lodge such a
challenge while avoiding submitting her client to the jurisdiction of the court
without proper service. See Tex. R. Civ. P. 120 (“The defendant may, in person,
or by attorney, or by his duly authorized agent, enter an appearance in open
court. Such appearance shall be noted by the judge upon his docket and
entered in the minutes, and shall have the same force and effect as if the citation
had been duly issued and served as provided by law.”); In re E.R., 385 S.W.3d
552, 563 (Tex. 2012) (“Personal jurisdiction, a vital component of a valid
judgment, is dependent ‘upon citation issued and served in a manner provided
for by law.’” (quoting Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990))). A
special appearance, on the other hand, is “for the purpose of objecting to the
20
jurisdiction of the court over the person or property of the defendant on the
ground that such party or property is not amenable to process issued by the
courts of this State.” Tex. R. Civ. P. 120a.
Although Whitaker urged her challenge as a special appearance, she was
candid when the court asked what her purpose was in filing the document. She
wanted to challenge Montgomery’s attempt to proceed as an indigent without
making an appearance in accordance with rule 120. She served the special
appearance on Chandler-Anderson, who objected to it at the February 2011
hearing. Chandler-Anderson did not object to the trial court’s allowing it to be
filed as an amicus pleading. See Young Chevrolet, Inc. v. Tex. Motor Vehicle
Bd., 974 S.W.2d 906, 912 (Tex. App.––Austin 1998, pet. denied) (concluding that
letters sent to trial court by several nonparty car dealers were not improper ex
parte communications and were more in the nature of amicus curiae pleas).
Moreover, nothing indicates that Whitaker was attempting to abuse the process
or raise a frivolous challenge. We therefore conclude and hold that the trial court
did not abuse its discretion by denying the motion for sanctions against Whitaker.
As to the other two lawyers, nothing in the record shows that they had any
involvement in the case. Accordingly, the trial court did not abuse its discretion
under the first prong of TransAmerican. TransAm. Natural Gas Corp., 811
S.W.2d at 917. We overrule Montgomery’s sixth and final issue.
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Conclusion
Having sustained Montgomery’s fourth and fifth issues in part, we modify
the trial court’s judgment to delete the monetary sanctions award of $6,000.
Having overruled the remainder of the issues, we affirm the trial court’s judgment
as modified.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DELIVERED: May 23, 2013
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