Opinion issued June 18, 2013
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-11-00829-CV
———————————
LEIGH GOMER, Appellant
V.
DONALD DAVIS, RUBY DAVIS, ALTHA/ANN STEINLAGE, Appellees
On Appeal from the 189th District Court
Harris County, Texas
Trial Court Case No. 2011-01203
OPINION
Leigh Gomer sued appellees, Donald Davis, Ruby Davis, and Ann Steinlage
(collectively, “Davis”), for conversion of a purebred poodle. During a bench trial,
the trial court rendered a directed verdict in favor of Davis and imposed $5,000 in
sanctions against Gomer and her attorney for bringing a frivolous lawsuit. In two
issues, Gomer contends that (1) the trial court erred in granting a directed verdict
because she presented legally sufficient evidence that she owned the dog and
(2) the trial court erroneously imposed sanctions.
We vacate the imposition of sanctions against Gomer only. We affirm the
remainder of the trial court’s judgment.
Background
Gomer had been friends with Jane Artall, Donald Davis’s mother, since the
mid-1980’s. Gomer and Artall were both dog breeders, and throughout the course
of their friendship, they occasionally bred each other’s dogs. Artall obtained a
purebred poodle shortly after its birth in April 2007. Gomer testified that Artall
gave this dog to her in August 2008 “[b]ecause she was afraid she was going to die
soon and she wanted someone to care for the dog.”
Gomer testified that she had the dog in her possession from August 1, 2008,
partway through September 2008 and that she also “had him on numerous
occasions after that.” She stated that she returned the dog to Artall’s possession in
September 2008 because Artall “loved the animal and it was our agreement that
she have him in her home.” According to Gomer, Artall told her that “because
[Gomer] took care of [the dog] she wanted me to keep him.”
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Artall, who was in poor health, had possession of the dog when she was not
in the hospital, and Gomer had possession of the dog while Artall was in the
hospital. Gomer had possession of the dog from late March through mid-April
2010, while Artall was in the hospital, but she then gave possession of the dog to
Davis when Artall was released from the hospital. When Artall went to a
rehabilitation facility in April 2010, Ann Steinlage took possession of the dog.
Gomer picked up the dog from Steinlage in September 2010, kept the dog with her
for two or three weeks, and brought the dog back to Artall. The dog remained with
Artall until she died on November 1, 2010. Gomer estimated that during the
period of time from September 2008 until Artall’s death in November 2010,
Gomer had possession of the dog for “about 10 percent of the time,” and Artall had
possession of the dog for the remaining time.
The day after Artall died, Donald Davis picked up the dog from her
apartment. Several days later, Gomer and her husband went to Davis’s house to
ask him to give her the dog, and Ruby Davis, Donald’s wife, refused to let Gomer
speak to him. The Davises refused to give Gomer the dog, and Gomer ultimately
sued the Davises and Steinlage for conversion.
The trial court admitted a form created by the American Kennel Club
(“AKC”), purporting to transfer registration of ownership of the dog from Artall to
Gomer. This form was dated August 1, 2008. Both Artall and Gomer signed this
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form, and Gomer testified that she mailed the form to the AKC. Gomer
acknowledged, however, that she did not mail the form to the AKC until
November 2010, after Artall had died. Gomer also acknowledged that, until
Artall’s death, she never claimed to Davis that she owned the dog.
On cross-examination, Davis’s counsel and Gomer had the following
exchange:
[Counsel]: In your pleadings, Mrs. Gomer, you indicate that you did
not ever expect or intend to have possession of this dog
until after Mrs. Artall’s death; is that accurate?
[Gomer]: Except for periods of time whenever she was unable to
care for him or I was breeding him.
When asked why she sued Steinlage, Gomer responded that the dog “was supposed
to be with [Artall] and [Artall] only until she died” and that Steinlage removed the
dog from Artall’s apartment without permission.
Davis moved for a directed verdict. The trial court granted the motion. The
court stated, “Judgment for the defendant. I want an application for attorney’s fees
for a frivolous case against counsel and against Ms. Gomer for bringing this case;
and we’ll deal with that when that is made.” Davis subsequently moved for
sanctions pursuant to Texas Rule of Civil Procedure 13 and Civil Practice and
Remedies Code Chapter 10, although he did not identify which subsections of
Civil Practice and Remedies Code section 10.001 that he believed Gomer had
violated. Davis requested sanctions in the amount of $9,125, representing
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reasonable attorney’s fees and costs. In response, Gomer argued that she had
presented evidence to support all elements of her claim and that she participated in
good-faith negotiations to resolve the matter without resorting to trial. Gomer also
attached her affidavit, in which she averred:
This case was brought in good faith based on my belief of the truth of
the allegations made and the evidence presented; mainly that Jane
Artall gave the dog to me, signed and then delivered the registration
papers and the dog to me. I brought this claim in all good
[conscience], with no interest to improperly burden the Court. Also,
offers to settle the case were made and seriously considered prior to
trial. This claim was brought with honest intentions and respect for
this Court.
On July 11, 2011, the trial court signed a final judgment, which stated that
“[t]he Court FINDS that the motion for directed verdict is well taken, that the suit
by Plaintiff is entirely frivolous and without merit, and that Defendants’ motion
should be GRANTED.” The judgment then stated:
It is, therefore, ORDERED, ADJUDGED, AND DECREED that
Plaintiff take nothing by reason of this suit, that Plaintiff’s suit is
frivolous and without merit, and that judgment be and is here by
entered for Defendants ALTHA/ANN STEINLAGE, DONALD
DAVIS AND RUBY DAVIS jointly and against Plaintiff, LEIGH
GOMER and her counsel, PATRICK G. HUBBARD, individually,
jointly and severally, as sanctions pursuant to Tex. Civ. Prac. & Rem.
Code Ann. § 10.004 and Rule 13, Texas Rules of Civil Procedure, for
Defendants’ reasonable attorney fees, expert witness fees and costs
incurred in this cause in the amount of [$5,000].
Gomer moved for a new trial and argued, “The portion of the judgment of
the court finding that the suit by Movant is entirely frivolous and without merit is
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contrary to the law and is contrary to the weight of the evidence. Further, the
award of sanctions based on that finding is unjust.” The trial court denied Gomer’s
motion for new trial.
Directed Verdict
In her first issue, Gomer contends that the trial court erred in granting a
directed verdict on her conversion claim because she presented legally sufficient
evidence that she received the dog as a gift from Artall and thus had an ownership
interest in the dog.
A. Standard of Review
A trial court may direct a verdict when a plaintiff fails to present evidence
raising a fact issue essential to its right of recovery or when the evidence
conclusively proves a fact that establishes the movant’s right to judgment as a
matter of law. Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d
74, 77 (Tex. 2000); Cox v. S. Garrett, L.L.C., 245 S.W.3d 574, 578 (Tex. App.—
Houston [1st Dist.] 2007, no pet.). A directed verdict is appropriate when
reasonable minds can draw only one conclusion from the evidence. Smith v. Aqua-
Flo, Inc., 23 S.W.3d 473, 476 (Tex. App.—Houston [1st Dist.] 2000, pet. denied).
In reviewing the granting of a directed verdict, we follow the standard of review
for assessing the legal sufficiency of the evidence. Cox, 245 S.W.3d at 578. We
consider the evidence in the light most favorable to the party against whom the
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verdict is directed. Id.; see also S.V. v. R.V., 933 S.W.2d 1, 8 (Tex. 1996) (“In
reviewing a directed verdict, we examine the evidence in the light most favorable
to the person suffering an adverse judgment.”). We must determine if there is any
conflicting evidence of probative value that raises a material fact issue. Cox, 245
S.W.3d at 578; Smith, 23 S.W.3d at 476 (“If the Smiths introduced some evidence
on each of the elements for design defect, the trial court erred in granting Aqua-
Flo’s motion for directed verdict.”). We can consider any reason why the directed
verdict should have been granted, even if the reason is not stated in the party’s
motion. Cox, 245 S.W.3d at 578 (citing Gonzales v. Willis, 995 S.W.2d 729, 740
(Tex. App.—San Antonio 1999, no pet.)).
B. Evidence of Gift
A gift is a voluntary transfer of property to another made gratuitously and
without consideration. Lopez v. Lopez, 271 S.W.3d 780, 788 (Tex. App.—Waco
2008, no pet.). To establish the existence of a valid inter vivos gift, the plaintiff
must show (1) that the donor intended to make a gift; (2) delivery of the property;
and (3) acceptance of the property by the donee. Nipp v. Broumley, 285 S.W.3d
552, 558 (Tex. App.—Waco 2009, no pet.); Edwards v. Pena, 38 S.W.3d 191, 197
(Tex. App.—Corpus Christi 2001, no pet.). The plaintiff establishes the requisite
donative intent by, among other things, “evidence that the donor intended an
immediate and unconditional divestiture of his or her ownership interests and an
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immediate and unconditional vesting of such interests in the donee.” Nipp, 285
S.W.3d at 559 (emphasis in original); Troxel v. Bishop, 201 S.W.3d 290, 297 (Tex.
App.—Dallas 2006, no pet.) (“[T]o be a gift in praesenti [at the present time], the
donor must, at the time he makes it, intend an immediate divestiture of the rights of
ownership out of himself and a consequent immediate vesting of such rights in the
donee.”). Until the donor has absolutely and irrevocably divested herself of the
title, dominion, and control of the subject of the gift, she has the power to revoke
the gift. Edwards, 38 S.W.3d at 197; see also Troxel, 201 S.W.3d at 296 (“All
dominion and control over the property must be released by the owner.”). The
donee does not have ownership of the subject of the gift until complete ownership
has been transferred from the donor to the donee. Edwards, 38 S.W.3d at 197. An
inter vivos gift must be absolute and not open for future reconsideration. Soto v.
First Gibraltar Bank, FSB San Antonio, 868 S.W.2d 400, 403 (Tex. App.—San
Antonio 1993, writ ref’d); see also Dorman v. Arnold, 932 S.W.2d 225, 228 (Tex.
App.—Texarkana 1996, no writ) (holding that, as matter of law, plaintiff did not
show present donative intent because donor intended for property to remain his
until his death); Woodworth v. Cortez, 660 S.W.2d 561, 564 (Tex. App.—San
Antonio 1983, writ ref’d n.r.e.) (“A gift may generally not be made to take effect in
the future since a mere promise to give is unenforceable without consideration.”).
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Here, Gomer testified that Artall transferred ownership of the dog to her on
August 1, 2008, and that she took possession of the dog at this time. She also
testified, however, that she brought the dog back to Artall in mid-September 2008
and that, over the next two years, she only possessed the dog when Artall was in
the hospital. Gomer estimated that she had possession of the dog for
approximately ten percent of the time from August 1, 2008, until Artall’s death on
November 1, 2010. Gomer agreed with Davis’s counsel that, except for periods
when Artall could not care for the dog or when Gomer was breeding the dog, she
did not expect to have possession of the dog until after Artall’s death. When
Davis’s counsel asked why she sued Steinlage, who had taken possession of the
dog when Artall was in a rehab facility and who brought the dog to Davis after
Artall’s death, Gomer responded that the dog “was supposed to be with [Artall]
and [Artall] only until she died.” Although the trial court admitted a transfer of
ownership form, signed by Artall and Gomer and dated August 1, 2008, Gomer
acknowledged that she did not attempt to file this form with the AKC until after
Artall died. Gomer also testified that she never made a claim of ownership over
the dog to Davis until after Artall died.
Gomer thus presented no evidence that Artall intended an “immediate and
unconditional divestiture” of her ownership interest in the dog and an “immediate
and unconditional vesting of such interests” in Gomer when Artall first allowed
9
Gomer to have possession of the dog. Nipp, 285 S.W.3d at 559; Troxel, 201
S.W.3d at 297. To the contrary, the evidence reflects that Artall intended to
continue to exercise dominion and control over the dog until her death. Troxel,
201 S.W.3d at 296; Edwards, 38 S.W.3d at 197; Dorman, 932 S.W.2d at 228. We
therefore conclude that Gomer failed to establish the existence of a valid inter
vivos gift. See Nipp, 285 S.W.3d at 559; Troxel, 201 S.W.3d at 297; Edwards, 38
S.W.3d at 197.
We hold that because Gomer presented no evidence that Artall intended to
make an absolute and irrevocable gift of the dog when she first allowed Gomer to
have possession in August 2008, the trial court correctly directed a verdict in favor
of Davis. See Prudential Ins. Co. of Am., 29 S.W.3d at 77; Cox, 245 S.W.3d at
578; Smith, 23 S.W.3d at 476.
We overrule Gomer’s first issue.
Sanctions
In her second issue, Gomer contends that the trial court erred in finding that
her claim was frivolous and in awarding $5,000 in attorney’s fees as sanctions
pursuant to Rule 13 and Civil Practice and Remedies Code Chapter 10.
A. Standard of Review
The imposition of sanctions pursuant to both Rule 13 and Chapter 10 is
within the discretion of the trial court, and we therefore review the court’s
10
sanctions order for an abuse of discretion. See Low v. Henry, 221 S.W.3d 609, 614
(Tex. 2007); Mattox v. Grimes Cnty. Comm’rs Ct., 305 S.W.3d 375, 386 (Tex.
App.—Houston [14th Dist.] 2010, pet. denied); Greene v. Young, 174 S.W.3d 291,
297 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). We may reverse the trial
court’s ruling on a sanctions order only if the court acted without reference to any
guiding rules and principles, such that its ruling was arbitrary or unreasonable.
Low, 221 S.W.3d at 614 (citing Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex.
2004)). Generally, courts presume that parties file pleadings in good faith. Id.
(citing GTE Commc’ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 730 (Tex. 1993)).
The party seeking the imposition of sanctions bears the burden of overcoming this
presumption of good faith. Id. (citing GTE Commc’ns Sys., 856 S.W.2d at 731).
B. Sanctions Under Rule 13
Rule 13 permits sanctions against attorneys and represented parties who file
a groundless pleading in bad faith or for the purpose of harassment. TEX. R. CIV.
P. 13; R.M. Dudley Constr. Co. v. Dawson, 258 S.W.3d 694, 707 (Tex. App.—
Waco 2008, pet. denied); Greene, 174 S.W.3d at 301. The party seeking to impose
sanctions pursuant to Rule 13 must demonstrate first that the opposing party’s
pleadings are groundless, and then the party must demonstrate that the groundless
pleadings were either filed in bad faith or filed for the purpose of harassment.
Dawson, 258 S.W.3d at 707; see also GTE Commc’ns Sys., 856 S.W.2d at 731
11
(“To impose sanctions under Rule 13, the district court was also required to find
that GCSC’s assertions were made in bad faith or for the purpose of harassment.”).
A pleading is “groundless” if it has “no basis in law or fact and [is] not warranted
by good faith argument for the extension, modification, or reversal of existing
law.” TEX. R. CIV. P. 13; Dawson, 258 S.W.3d at 708.
When imposing Rule 13 sanctions, the trial court is required to state the
particulars of good cause justifying the sanctions. See TEX. R. CIV. P. 13 (“No
sanctions under this rule may be imposed except for good cause, the particulars of
which must be stated in the sanction order.”); Robson v. Gilbreath, 267 S.W.3d
401, 407 (Tex. App.—Austin 2008, pet. denied). The trial court abuses its
discretion if it fails to comply with this requirement. See Robson, 267 S.W.3d at
407; Tex.-Ohio Gas, Inc. v. Mecom, 28 S.W.3d 129, 135 (Tex. App.—Texarkana
2000, no pet.). However, if, as here, the party against whom sanctions are imposed
does not object to the form of the sanctions order, that party waives any objection
to the absence of a bad faith or harassment finding. See Robson, 267 S.W.3d at
407; Mecom, 28 S.W.3d at 136 (“[B]y failing to make a timely objection, Texas-
Ohio waived its complaint regarding the particularity of the sanction order.”). In
that circumstance, we consider whether the record contains any evidence to
support an implied finding that the plaintiff brought her claim in bad faith or for
the purpose of harassment. See Robson, 267 S.W.3d at 407.
12
Improper motive is an essential element of bad faith. See id. Bad faith is
more than just bad judgment or negligence; bad faith “means the conscious doing
of a wrong for dishonest, discriminatory, or malicious purpose.” Id. In deciding
whether the plaintiff filed a pleading in bad faith or for the purpose of harassment,
the trial court must measure the plaintiff’s conduct and examine the facts available
to the plaintiff at the time the relevant pleading was signed. See Mecom, 28
S.W.3d at 139. The plaintiff’s petition alone cannot establish that she brought the
case in bad faith or for the purpose of harassment. Id. Therefore, Rule 13
generally requires that the trial court hold an evidentiary hearing to make a
determination about the motives and credibility of the person signing the petition.
Id. In some circumstances, the trial court may be able to make a determination by
taking judicial notice of the case file. Id. The trial court abuses its discretion in
imposing sanctions under Rule 13 if there is no evidence in the record for the court
to determine that the plaintiff brought her petition in bad faith or for the purpose of
harassment. Id.
Here, the trial court did not hold an evidentiary hearing concerning whether
Gomer filed suit in bad faith or for the purpose of harassment. Instead, after the
trial court granted a directed verdict in favor of Davis, it stated, “I want an
application for attorney’s fees for a frivolous case against counsel and against Ms.
Gomer for bringing this case; and we’ll deal with that when that is made.” Davis
13
then moved for sanctions against Gomer and her counsel pursuant to Rule 13 and
Chapter 10. Davis did not attach any evidence to this motion. In her response,
Gomer attached her own affidavit, averring that she brought the case in good faith
“based on [her] belief of the truth of the allegations made and the evidence
presented; mainly that Jane Artall gave the dog to [her], signed and then delivered
the registration papers and the dog to [her].” She further stated that she “brought
this claim in all good [conscience], with no interest to improperly burden the
Court” and that “[t]his claim was brought with honest intentions and respect for the
Court.” In the final judgment, the trial court awarded $5,000 in attorney’s fees and
costs to Davis, assessed against both Gomer and her attorney, “as sanctions
pursuant to [Civil Practice and Remedies Code section] 10.004 and Rule 13.” The
trial court found that Gomer’s case was frivolous, but it did not make any explicit
findings that she brought the suit in bad faith or for the purpose of harassment.
Because courts must presume that pleadings are filed in good faith, Gomer’s
petition alone cannot establish that she brought her case in bad faith or for the
purpose of harassment. Id. As the party moving for sanctions, Davis had the
burden to overcome this presumption of good faith and present evidence that
Gomer filed suit in bad faith or for the purpose of harassment. See Low, 221
S.W.3d at 614. Davis did not attach any such evidence to his motion for sanctions,
and the trial court did not hold an evidentiary hearing, as it was required to do, to
14
“make a determination about the motives and credibility of the person signing the
petition.” Mecom, 28 S.W.3d at 139. The trial court thus had no evidence before it
to determine that Gomer filed suit in bad faith or for the purpose of harassment.
See id. Because Rule 13 requires both that the claims be groundless and that the
suit be filed in bad faith or for the purpose of harassment, and the record lacks
sufficient evidence to support a determination that Gomer filed her petition in bad
faith or to harass, we conclude that the trial court abused its discretion to the extent
that it sanctioned Gomer and her attorney pursuant to Rule 13. See id. at 136, 139.
C. Sanctions Under Chapter 10
Civil Practice and Remedies Code section 10.001 provides that the signing
of a pleading constitutes a certification by the signatory that to the signatory’s best
knowledge, information, and belief, formed after reasonable inquiry:
(1) the pleading or motion is not being presented for any improper
purpose, including to harass or to cause unnecessary delay or
needless increase in the cost of litigation;
(2) each claim, defense, or other legal contention in the pleading or
motion is warranted by existing law or by a nonfrivolous
argument for the extension, modification, or reversal of existing
law or the establishment of new law;
(3) each allegation or other factual contention in the pleading or
motion has evidentiary support or, for a specifically identified
allegation or factual contention, is likely to have evidentiary
support after a reasonable opportunity for further investigation
or discovery; and
15
(4) each denial in the pleading or motion of a factual contention is
warranted on the evidence or, for a specifically identified
denial, is reasonably based on a lack of information or belief.
TEX. CIV. PRAC. & REM. CODE ANN. § 10.001 (Vernon 2002); see also Mattox, 305
S.W.3d at 386 (“Sanctions under chapter 10 of the Civil Practice and Remedies
Code are authorized if the evidence establishes that (1) a pleading or motion was
brought for an improper purpose, (2) there were no grounds for legal arguments
advanced, or (3) a factual allegation or denial lacked evidentiary support.”). The
trial court may impose sanctions on a person who has signed a pleading in
violation of section 10.001. See TEX. CIV. PRAC. & REM. CODE ANN. § 10.004(a)
(Vernon 2002).
In the final judgment, the trial court stated that it was imposing $5,000 for
attorney’s fees as a sanction “pursuant to Tex. Civ. Prac. & Rem. Code Ann.
§ 10.004.” Section 10.004 simply allows a trial court to sanction a person who
violates a subsection of section 10.001. TEX. CIV. PRAC. & REM. CODE ANN.
§ 10.004(a). The trial court did not identify in the final judgment what subsection
of section 10.001 it determined that Gomer had violated, and it did not explain the
basis for the sanction other than to state that Gomer’s suit was “frivolous and
without merit.”1 See id. § 10.005 (Vernon 2002) (requiring trial court to “describe
1
Similarly, in the motion for sanctions, Davis failed to “describe[e] the specific
conduct violating Section 10.001.” See TEX. CIV. PRAC. & REM. CODE ANN.
§ 10.002(a) (Vernon 2002).
16
in an order imposing a sanction under this chapter the conduct the court has
determined violated Section 10.001 and explain the basis for the sanction
imposed”). We therefore consider each subsection of section 10.001.
As with sanctions under Rule 13, to impose sanctions under section
10.001(1), the trial court must hold an evidentiary hearing to make the necessary
factual determinations about the party’s or the attorney’s motives and credibility.
Dawson, 258 S.W.3d at 709. The party moving for sanctions must prove the
pleading party’s subjective state of mind, and, thus, without an evidentiary hearing,
the court lacks evidence to determine whether a pleading was filed in bad faith or
for the purpose of harassment. Id. at 710. Here, as with the sanctions under Rule
13, we conclude that insufficient evidence supports a finding that Gomer and her
attorney violated section 10.001(1).
Section 10.001(4) refers to denials of a factual contention made in a pleading
and is inapplicable here. See TEX. CIV. PRAC. & REM. CODE ANN. § 10.001(4)
(Vernon 2002). Section 10.001(2) provides that a signatory to a pleading certifies
that “each claim, defense, or other legal contention in the pleading . . . is warranted
by existing law or by a nonfrivolous argument for the extension, modification, or
reversal of existing law or the establishment of new law.” Id. § 10.001(2). This
section appears to be the most likely basis for sanctions, given Gomer’s contention
that Artall made a valid inter vivos gift of the dog despite uncontroverted evidence
17
that Artall retained possession and control over the dog and despite Gomer’s own
testimony that she did not expect to receive uninterrupted possession of the dog
until Artall’s death. Section 10.004(d), however, provides that the trial court “may
not award monetary sanctions against a represented party for a violation of Section
10.001(2).” TEX. CIV. PRAC. & REM. CODE ANN. § 10.004(d) (Vernon 2002).
Here, the trial court imposed $5,000 in sanctions against Gomer, a represented
party. Under these facts, therefore, section 10.001(2) cannot support this sanctions
award against Gomer, although Gomer’s attorney may be sanctioned under this
section. See Univ. of Tex. at Arlington v. Bishop, 997 S.W.2d 350, 357 (Tex.
App.—Fort Worth 1999, pet. denied); see also Loeffler v. Lytle Indep. Sch. Dist.,
211 S.W.3d 331, 349–50 (Tex. App.—San Antonio 2006, pet. denied) (holding
that because attorney decides which legal claims to file and party provides, at most,
factual basis for claims, party “should not be punished for their attorney’s conduct
unless the party is implicated apart from having entrusted its legal representation,”
and trial court abused its discretion in sanctioning party under Chapter 10).
Thus, the only other subsection of section 10.001 that the trial court could
have found that Gomer and her attorney violated is section 10.001(3). With
respect to this section, the applicable standard is that, “to the signatory’s best
knowledge, information, and belief, formed after reasonable inquiry, each
allegation or other factual contention in a pleading has evidentiary support or, for a
18
specifically identified allegation or factual contention, is likely to have evidentiary
support after a reasonable opportunity for further investigation or discovery.”
Dawson, 258 S.W.3d at 711; see also Low, 221 S.W.3d at 617 (“Under chapter
10 . . . [the moving party is] not required to specifically show bad faith or
malicious intent, just that [the pleader] certified he made a reasonable inquiry into
all of the allegations when he did not and that he certified that all the allegations in
the petition had evidentiary support, or were likely to have evidentiary support,
when some allegations did not.”). The trial court must examine the facts and
evidence available to the party and the circumstances existing when the party filed
the pleading. Dawson, 258 S.W.3d at 711. “Sanctions for frivolous or groundless
pleadings do not apply to the pursuit of an action later determined to be groundless
after pleadings were filed.” Id.
In her original petition, Gomer alleged that she acquired the dog from Artall
on August 1, 2008, and she referred to the AKC transfer of ownership form, which
she attached as an exhibit. She also alleged that Artall passed away before she
could take possession of the dog, that Steinlage took possession of the dog upon
Artall’s death, and that Steinlage brought the dog to Davis. Gomer’s factual
allegations in her petition had evidentiary support. As we have stated, the fatal
flaw in her conversion claim was that she could not establish that Artall’s gift of
the dog was absolute and irrevocable and thus was a valid inter vivos gift. Thus,
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under the facts of this case, her claim was not warranted by existing law. See TEX.
CIV. PRAC. & REM. CODE ANN. § 10.001(2). However, the fact that she was
ultimately unsuccessful in her claim does not control whether she should be
sanctioned pursuant to section 10.001(3) for making factual allegations and
contentions in her original pleading that did not have evidentiary support. See
Dawson, 258 S.W.3d at 711. In the absence of any statement by Davis regarding
which of Gomer’s factual allegations and contentions lacked evidentiary support,
we conclude that insufficient evidence supports a decision to sanction Gomer for
violating section 10.001(3). See Low, 221 S.W.3d at 614 (“Generally, courts
presume that pleadings and other papers are filed in good faith. The party seeking
sanctions bears the burden of overcoming this presumption of good faith.”).
Because we conclude that no evidence supports the trial court’s decision to
impose sanctions under either Rule 13 or Civil Practice and Remedies Code
Chapter 10, we hold that the trial court abused its discretion to the extent that it
ordered Gomer to pay $5,000 in attorney’s fees to Davis as sanctions. Because
Gomer’s claim was not warranted by existing law, and thus violated section
10.001(2), the trial court did not abuse its discretion in assessing $5,000 in
sanctions against Gomer’s attorney.
We sustain Gomer’s second issue in part.
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Conclusion
We vacate the award of $5,000 in attorney’s fees as a sanction against
Gomer, individually. We affirm the remainder of the judgment, including the
award of $5,000 in attorney’s fees as a sanction against Gomer’s counsel.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Sharp, and Huddle.
Justice Sharp, concurring and dissenting.
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