COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-123-CV
ROBIN PEARSON APPELLANT
V.
CHARLES STEW ART APPELLEE
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FROM THE 322ND DISTRICT COURT OF TARRANT COUNTY
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OPINION
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This appeal challenges the child support provisions in an agreed decree of
divorce and a separate order imposing rule 13 sanctions. Tex. R. Civ. P. 13. In her
first issue, appellant Robin Pearson contends that the trial court erred by overruling
her rule 329b(g) motion to modify, correct, or reform the agreed decree to adjust the
monthly amount of child support payable by appellee Charles Stewart because of
the parties’ alleged mistake in calculating his 2009 income and bonuses. Tex. R.
Civ. P. 329b(g). In her second issue, Pearson challenges the trial court’s imposition
of $850 in attorney’s fees against her as sanctions for filing a groundless pretrial
motion to extend the time to mediate. Because we hold that the trial court did not
abuse its discretion by denying the motion to modify, correct, or reform the agreed
decree, we affirm the agreed decree. But because the evidence in the record does
not support a sanctions award against Pearson, we reverse the trial court’s award
of sanctions.
Procedural Background
Pearson and Stewart entered into an agreed divorce decree after a hearing
on January 30, 2009. The trial court signed the decree the same day. The decree
provided that Stewart would pay $789.17 per month in child support, payable
biweekly in installments of $364.24. 1
Before the hearing, Stewart had filed a motion for sanctions alleging that
Pearson’s counsel had filed a groundless and frivolous Motion for Extension of Time
to Mediate two weeks previously. See Tex. R. Civ. P. 13; Tex. Civ. Prac. & Rem.
Code Ann. §§ 9.012, 10.001 (Vernon 2002). That motion remained pending after
the trial court signed the agreed decree.
Pearson timely filed a Motion to Modify, Correct, or Reform Decree,
contending that the parties incorrectly calculated Stewart’s net resources for child
support purposes based on a mistaken reading of his 2008 W -2, the erroneous
inclusion of six months of a lower base pay, and the reliance on that base pay in
1
The rate of the first biweekly payment is listed incorrectly in the original
decree as $789.17, the monthly payment; the trial court corrected this clerical error
in a nunc pro tunc decree.
2
calculating Stewart’s future bonus payments. After a hearing, the trial court denied
the motion under section 156.401 of the family code, stating that “the circumstances
of the child or a person affected by the order have not materially and substantially
changed since the date of the order’s rendition on January 30, 2009[,] and . . . it has
not been three years since the order was rendered or last modified.” The trial court
stated at the hearing that “we ignore [civil procedure rule 329b] when we have
specific rules in the Texas Family Code that . . . specify that . . . they are more
specific as to the limitations and the time periods . . . than is approved under 329(b)
[sic] of the Texas Rules of Civil Procedure.”
Four days after the hearing, at which the trial court also heard argument on
Stewart’s sanctions motion, the trial court ordered Pearson to pay Stewart, through
his attorney of record, $850 in attorney’s fees as sanctions. The trial court
specifically found that the Motion for Extension of Time to Mediate “filed by”
Pearson’s attorney was “groundless and filed in bad faith for the purpose of
harassment or for needless delay under Tex. R. Civ. P. 13.” Pearson appealed from
both the trial court’s denial of her motion to modify and the sanctions order.
Motion to Modify, Correct, or Reform Agreed Decree
In her first issue, Pearson claims the trial court abused its discretion by either
refusing to hear her Motion to Modify, Correct, or Reform Decree or by denying it.
According to Pearson, the motion to modify was brought under rule 329b(g) and
therefore the trial court was required to hold an evidentiary hearing on the motion.
3
Instead, the trial court agreed with Stewart’s counsel’s contention that such a motion
could not be brought unless the requirements of section 156.401 of the family code
were met. Pearson thus contends that the trial court was not only incorrect in
deciding that section 156.401 “trumps” rule 329b post-trial motions but also in failing
to hold an evidentiary hearing on her motion. Pearson further contends that,
notwithstanding the trial court’s incorrect application of section 156.401, the trial
court should have granted her motion because she proved that the parties were
mistaken in their calculation of child support.
Rule 329b(g) provides that a motion to modify, correct, or reform a judgment
may be filed within the same time periods as a motion for new trial and extends the
trial court’s plenary power in the same manner as a motion for new trial. Tex. R. Civ.
P. 329b(g). The motion must be in writing and must specify how the recently
rendered judgment should be modified, corrected, or reformed. Id. A party may file
a rule 329b motion solely for the purpose of extending the trial court’s plenary power.
See Old Republic Ins. Co. v. Scott, 846 S.W.2d 832, 833 (Tex. 1993) (op. on reh’g).
Family code section 156.401 provides that a trial court
may modify an order that provides for the support of a child . . . if:
(1) the circumstances of the child or a person affected by the
order have materially and substantially changed since the earlier
of:
(A) the date of the order’s rendition; or
4
(B) the date of the signing of a mediated or collaborative
law settlement agreement on which the order is based; or
(2) it has been three years since the order was rendered or last
modified and the monthly amount of the child support award
under the order differs by either 20 percent or $100 from the
amount that would be awarded in accordance with the child
support guidelines.
Tex. Fam. Code Ann. § 156.401 (Vernon 2008). The purpose of section 156.401 is
“to prevent vexatious litigation of such matters as custody and support.” Moreland
v. Moreland, 589 S.W .2d 828, 829 (Tex. App.—Dallas 1979, writ dism’d) (construing
prior version of statute); see In re S.E.K., 294 S.W .3d 926, 928 (Tex. App.—Dallas
2009, pet. denied) (noting that chapter 156 was enacted to prevent constant litigation
in child custody cases).
Here, Pearson timely filed her motion to modify within the trial court’s plenary
power, alleging that although the parties had agreed that child support should be
calculated based on Stewart’s most recent available salary and bonus information,
they mistakenly used inaccurate information to make that calculation and that
because of that mistake, the child support provision of the agreed decree should be
modified to reflect the true agreement of the parties. Because the agreed decree
involved the first determination of child custody issues between the parties, it was
governed by chapter 153 of the family code, not chapter 156. See In re P.D.M., 117
S.W .3d 453, 455–56 (Tex. App.—Fort W orth 2003, pet. denied) (en banc). Chapters
153 and 156 are distinct statutory schemes that involve different issues. In re V.L.K.,
5
24 S.W .3d 338, 343 (Tex. 2000); S.E.K., 294 S.W .3d at 928. Because section
156.401 does not apply to original suits involving child custody, it likewise cannot
apply to post-trial 329b motions in such original suits. Thus, we conclude and hold
that in an original child custody suit governed by chapter 153 of the family code,
family code section 156.401 does not prohibit a party from filing, nor a trial court from
considering, a rule 329b(g) motion brought timely within that court’s plenary power.
See In re V.L.K., 24 S.W .3d at 343; P.D.M., 117 S.W .3d at 455–56. The trial court
erred by so holding.
Even though the trial judge erred by overruling Pearson’s motion to modify
based on its failure to meet the requirements of section 156.401, we nevertheless
conclude that the trial court did not err by overruling the motion.
Even an agreed decree may be reformed for mutual mistake. See Hawkins
v. Howard, 97 S.W .3d 676, 679 (Tex. App.—Dallas 2003, no pet.); Weynand v.
Weynand, 990 S.W .2d 843, 846 (Tex. App.—Dallas 1999, pet. denied); Pate v. Pate,
874 S.W .2d 186, 188 (Tex. App.—Houston [14th Dist.] 1994, writ denied). To be
entitled to reformation based on mutual mistake, a party must prove that there has
been “a definite agreement between the parties that has been misstated in the
written memorandum because of a mistake common to both contracting parties.”
Pate, 874 S.W .2d at 188.
At the hearing, the trial court heard argument from both Pearson’s and
Stewart’s counsel regarding the agreement as to child support, which was reached
6
in the trial judge’s chambers. Pearson contended that the parties intended to use
Stewart’s projected 2009 salary, which could not be projected from the 2008 W -2
because of the lower salary Stewart was making during the first half of 2008 and also
because the W -2 gross earnings did not reflect amounts that had been taken out for
health insurance. But Stewart’s counsel argued that the parties did use a pay stub
and bonus information from January 2009 to project Stewart’s salary for 2009; in
other words, they did not use only the 2008 W -2 information and, thus, did not
mistakenly calculate the child support amount. Pearson offered the W -2s for 2008
and 2007 into evidence but not the 2009 pay stubs. 2 Accordingly, we conclude and
hold that Pearson failed to meet her burden of proving that the parties had a definite
agreement that was misstated in the decree and, thus, that the trial court did not
abuse its discretion by overruling the 329b(g) motion to modify. 3 See Pate, 874
2
Although Pearson complains that the trial court aborted the hearing after
determining the motion was prohibited by section 156.401, it is clear that the trial
court treated the attorneys’ argument on the motion, though unsworn, as evidentiary.
Pearson did not object; thus, we overrule her contention that she was denied a
hearing on her motion. See In re M.N., 262 S.W .3d 799, 804 (Tex. 2008); Banda v.
Garcia, 955 S.W .2d 270, 272 (Tex. 1997).
3
At the January 30, 2009 hearing, Pearson testified that she agreed to the
terms of divorce and that an amount of child support had been calculated “in
conference with the judge earlier today.” W hen she expressed some confusion as
to why the child support amount was less than what she had been receiving
pursuant to the temporary orders, the trial judge explained that a health insurance
credit had been applied, which brought the amount down. W hen the trial court
asked if she understood, Pearson answered, “I guess.” However, when asked later
whether the decree was in her best interest and her daughters’ best interests, she
said, “Yes.”
7
S.W .2d at 188; see also Davis v. Shanks, 911 S.W .2d 390, 396 (Tex.
App.—Texarkana 1994) (holding that nonuse of powers granted by rule 329b is
reviewed for abuse of discretion), rev’d on other grounds, 898 S.W .2d 285 (1995);
Ferguson v. Naylor, 860 S.W .2d 123, 127 (Tex. App.—Amarillo 1993, writ denied)
(“The powers enumerated in Rule 329b are inherent in the trial court and their use
will not be disturbed on appeal absent a clear abuse.”).
W e overrule Pearson’s first issue.
Rule 13 Sanctions
In her second issue, Pearson challenges the trial court’s award of $850 in
attorney’s fees to Stewart as sanctions against Pearson for filing a groundless
pleading under rule 13. Tex. R. Civ. P. 13.
Standard of Review
W e review a trial court’s imposition of sanctions under rule 13 for an abuse of
discretion. Low v. Henry, 221 S.W .3d 609, 614 (Tex. 2007); Cire v. Cummings, 134
S.W .3d 835, 838 (Tex. 2004). To determine whether a trial court abused its
discretion, we must decide whether the trial court acted without reference to any
guiding rules or principles; in other words, we must decide whether the act was
arbitrary or unreasonable. Low, 221 S.W .3d at 614; Cire, 134 S.W .3d at 838–39.
In determining whether the trial court abused its discretion, we must first
ensure that there is a direct relationship between the improper conduct and the
sanction imposed; in other words, we examine whether punishment was imposed
8
upon the true offender, whether it was directed against the abuse, and whether it
was tailored to remedy any resulting prejudice. Low, 221 S.W .3d at 614; TransAm.
Natural Gas Corp. v. Powell, 811 S.W .2d 913, 917 (Tex. 1991); see also GTE
Commc’ns Sys. Corp. v. Tanner, 856 S.W .2d 725, 731 (Tex. 1993) (holding that rule
215’s requirement that sanctions be “just” is equivalent to rule 13’s requirement that
they be “appropriate”). Thus, the trial court must determine whether sanctions
should be imposed on the party, its counsel, or both. Am. Flood Research, Inc. v.
Jones, 192 S.W .3d 581, 584 (Tex. 2006) (“Sanctions may be visited exclusively on
the attorney if the evidence demonstrates that the offensive conduct is attributable
to counsel alone.”); TransAm., 811 S.W .2d at 917. Second, the court must make
certain that less severe sanctions would not have been sufficient to promote
compliance. Am. Flood Research, Inc., 192 S.W .3d at 583; TransAm., 811 S.W .2d
at 917.
Rule 13 provides as follows:
The signatures of attorneys or parties constitute a certificate by
them that they have read the pleading, motion, or other paper; that to
the best of their knowledge, information, and belief formed after
reasonable inquiry the instrument is not groundless and brought in bad
faith or groundless and brought for the purpose of harassment. . . . If
a pleading, motion or other paper is signed in violation of this rule, the
court, upon motion or upon its own initiative, after notice and hearing,
shall impose an appropriate sanction available under Rule 215, . . .
upon the person who signed it, a represented party, or both.
Tex. R. Civ. P. 13. Rule 13 defines “groundless” as having “no basis in law or fact
and not warranted by good faith argument for the extension, modification, or reversal
9
of existing law.” Id.; In re A.S.M., 172 S.W .3d 710, 717 (Tex. App.—Fort W orth
2005, no pet.).
Generally, courts presume that pleadings and other papers are filed in good
faith. Low, 221 S.W .3d at 614; In re A.S.M., 172 S.W .3d at 717. The party seeking
sanctions bears the burden of overcoming this presumption of good faith. Low, 221
S.W .3d at 614; GTE Commc’ns Sys. Corp., 856 S.W .2d at 731. Improper motive is
an essential element of bad faith. Parker v. Walton, 233 S.W .3d 535, 540 (Tex.
App.—Houston [14th Dist.] 2007, no pet.); Wallace v. Inv. Advisors, Inc. 960 S.W .2d
885, 889 (Tex. App.—Texarkana 1997, pet. denied). Bad faith is not simply bad
judgment or negligence but the conscious doing of a wrong for a dishonest,
discriminatory, or malicious purpose. Keith v. Solls, 256 S.W .3d 912, 916 (Tex.
App.—Dallas 2008, no pet.); Parker, 233 S.W .3d at 540. ”’Harass’ is used in a
variety of legal contexts to describe words, gestures, and actions that tend to annoy,
alarm, and verbally abuse another person.” Keith, 256 S.W .3d at 916–17; Parker,
233 S.W .3d at 540.
Applicable Facts
Pearson’s counsel mailed the Motion for Extension of Time to Mediate that is
the basis of the sanctions motion on January 14, 2009, the last day set in the pretrial
scheduling order for the parties to mediate. The case had been set for trial on
January 30, 2009 since November 7, 2008. The motion to extend indicates that
10
[n]umerous requests have been made to [Stewart] regarding obtaining
copies of his payroll records, to which there has been no response.
Eventually, a Subpoena was served on his employer’s parent
corporation. Those records are being gathered and are expected to be
received by January 29th. Mediation cannot be conducted in good faith
without complete and accurate payroll records.
Only counsel signed the motion, which contains a Certificate of Conference stating,
“I hereby certify that a call was made to [counsel for respondent] and no objection
was made to the filing of this Motion for Extension of Time to Mediate.” 4
Although the trial court granted the motion to extend time to mediate, it did not
continue the trial date, nor did any party request that it do so.
Stewart’s motion for sanctions begins by asking the trial court to impose
sanctions against Pearson’s attorney for filing a groundless pleading in violation of
rule 13 and section 9.012 of the civil practice and remedies code and a frivolous
pleading in violation of section 10.001 of the civil practice and remedies code. In the
“Facts” section of the motion, it states
5. [Pearson] alleges in paragraph (1.) of the Motion [for
Extension of Time to Mediate] that “numerous requests have been
made to [Stewart] regarding obtaining copies of his payroll records, to
which there has been no response”. (Exhibit No. 1)
6. This statement is an absolute fabrication and
MISREPRESENTATION OF FACT TO THIS COURT. Despite the fact
that [Pearson] never filed a request for production or any other
discovery request, [Stewart] has provided copies of the pay stubs and
tax documents to [Pearson’s] Attorney on SEVEN separate occasions
....
4
Stewart’s counsel argued to the trial court that this certification is
misleading and false.
11
W hat follows is a list of all the related documents that Stewart’s counsel provided to
Pearson’s counsel between May and December 2008, over forty different items.
Attached to the motion for sanctions as an exhibit is a December 19, 2008
letter from Stewart’s counsel to Pearson’s stating,
In addition to numerous faxes to your office of his pay-stubs, at the
September 5, 2008 court appearance I provided you with a packet
containing all of Charles’s pay and bonus check stubs to date, with the
exception of checks for the pay-periods of January 17-30, 2008, June
19-July 2008. Please note that every pay stub has the YEAR-TO-
DATE amount. This includes all of his bonus checks. You can verify
this by subtracting the gross bonus from the gross year to date on
the regular pay-stub for the subsequent pay-check. Your insistence
that Charles is somehow hiding his bonuses is absolutely unfounded.
Every penny that Charles is paid through his employment is reported
in the year-to-date column. Therefore, his bonuses are included in the
calculation of his child support obligation.
The letter also states that paystubs for several pay periods between October 23,
2008 and December 17, 2008 are attached. The letter closes by reminding counsel
of the mediation deadline and suggesting a mediator. Also attached are numerous
fax cover sheets dated from July to September 2008, with copies of attached pay
stubs.
On December 19, 2008, 5 a subpoena was issued to Stewart’s employer
compelling production of all copies of Stewart’s Statement of Earnings and
Deductions for all periods prior to June 7, 2007; all periods between June 20, 2007
and July 19, 2007; all periods between December 5, 2007 and December 20, 2007;
5
The discovery deadline was January 5, 2009.
12
all periods after June 18, 2008; and all “Bonus” periods or periods for which the pay
was other than “Regular.” The subpoena also compelled production of a copy of
Stewart’s 2008 W -2 and “[a]ll other employment and pay records relating to” Stewart.
On December 29, 2008, Pearson’s counsel sent a letter to Stewart’s counsel
stating,
Of the dates you have suggested, Tuesday, January 13, 2008
[sic] works best for me. However, that would be subject to my receipt
of the documents requested from Mimi’s Cafe’s parent corporation. It
has up to 30 days to produce those documents, but it may produce
them early, in which case I could make those dates. Otherwise, it may
be as late as the 21st before the documents are produced. So, you
may want to make tentative arrangements for us to mediate on the
13th, but make sure that the mediator understands that it is subject to
my receipt of the subpoenaed documents.
At the hearing on the sanctions motion, the trial court apparently took judicial
notice of the documentation attached to Stewart’s motion for sanctions, which
included copies of correspondence with Pearson’s counsel, including copies of pay
stubs provided to him. 6 Stewart then testified that he first retained his counsel
around May 2008 and that “on numerous occasions,” he sent payroll information to
her office so that she could provide it to Pearson’s counsel. He acknowledged that
his counsel had copied him on that correspondence. He also agreed that, to his
knowledge, no formal discovery had ever been filed asking for those documents
other than two subpoenas on his employer’s corporate office. According to Stewart,
6
After counsel’s request for judicial notice, there was a discussion between
counsel and the trial court as to which documents counsel was referring to, after
which, the trial court answered, “Okay.”
13
“the legal department of SW H Corporation notified [him] that [his] payroll records
were requested and asked if [he] would release them, and [he] said yes.” This was
before the December 2008 subpoena, but Stewart could not remember when. 7 He
was notified in January 2009 that the records had been subpoenaed again. W hen
asked if he had formed an opinion about Pearson’s concerns over the course of the
suit, he answered that “I believe that they, or my ex-wife, thinks that I was hiding
several thousand dollars, because I was not turning over every single paycheck.”
He then admitted that he did not give his counsel every pay stub, stating, “I’m not in
the habit of keeping my check stubs. I’m surprised I had as many as I did.”
The court initially denied Stewart’s sanctions motion. But the court allowed
further argument from both parties. Stewart argued that the basis of the motion to
mediate was a “substantial misstatement of fact” that no payroll information had
been provided despite counsel’s providing Pearson’s counsel with such information
over the course of several months. Counsel also argued,
And I believe that the evidence shows from my exhibits and from
Mr. Stewart’s testimony and the filings before you that he in fact did
know that this was a groundless pleading.
And I would argue, Your Honor, that this was filed as a means to
delay or harass my client, who they continually accuse of hiding money,
yet it’s not shown on any of the - - they have not been able to produce
any evidence of that and they have not even filed discovery. So, I just
think they are trying to delay this to last even longer so maybe
something would appear.
7
Pearson’s counsel later told the trial court that the first subpoena was
served between February and May 2008.
14
Pearson’s counsel admitted that he did receive a “series of productions” from
Stewart’s counsel but that “there were also big holes in what was being produced.”
He explained,
As we moved well into ‘08, there were still records from ‘07 that
I had not received and I could see I was unable to reconcile the - - the
numbers that were being presented to me with the W -2 and felt that I
should have an entire set of those documents.
Now, I did, early on when I was not getting the records, did
subpoena the employer and [Stewart’s counsel] stepped in at that point
in time and said, you don’t need to do that, I will provide those
documents to you.
He also admitted that after Stewart had hired counsel,
[s]he came in, did the appropriate thing and contacted me and
said, you don’t need to follow through with the subpoena; we will
provide them to you. And she did do a good job of providing them to
me and I have no reason to think that she didn’t provide me with
everything that she had. But we didn’t have everything.
And as that went on into the fall, at least in September I wrote her
and said, I’m still needing these remaining pay records.
In November I wrote to her and said, I’m still missing 13 of the
pay records. I think at some point after that I said, we are still missing
17 pay records.
As we got into December, we are getting some pay records
during that time, but we are still missing pay records. As of December
19 we are missing 18 pay records. W e got some that date and dropped
it down to 13.
But as we were getting closer to trial date, it was appearing that
we were not going to be able to get all of the pay records. And I
understand that Mr. Stewart has lost them. I can’t find all my credit
card statements. You know, I understand that.
15
But we still felt like we needed those pay records.
He also admitted that he did not participate in any formal discovery.
In describing the thirteen missing records, Pearson’s counsel stated that some
of them were from late 2007 and some were from throughout 2009. He said that
Stewart’s counsel had acknowledged that those records were still missing each time
she sent new ones, and that is why he issued the subpoena in December because
he realized those were apparently permanently lost. He did not receive them in
response to the subpoena until the morning of trial.
According to Pearson’s counsel,
[i]t was something that because of the history of the case,
something that I felt I needed to have a complete picture of. I needed
to have a complete picture for my client.
My client was very concerned about not getting the appropriate
amount of child support and I felt like I needed the entire picture.
Now, counsel stated that - - that the motion was filed at the last
minute, and that is true. I knew that the date that our motion to extend
was filed was the last date in this court’s order that we were to have
mediated.
And the motion to extend was not to delay the trial; was not to
prejudice anybody; did not require anybody else’s time, just simply to
say can you give us some more time to mediate, because at that point
in time I still did not have those records from - - from the employer,
which is what I was wanting so I could sit down and in good faith and
full knowledge, sit down and mediate the case.
So, that’s what that was about, and that’s all it was about was to
give us more time to mediate. And the records in there, although not
stated well because it should say is outstanding in there, but it didn’t
say outstanding in the motion. But that’s what we were searching for,
16
these items that we'd been asking for for sometime apparently did not
exist, apparently Ms. Estrada didn’t have them and apparently Mr.
Stewart [didn’t either].
I’m not even blaming Mr. Stewart. W e loose [sic] things and - -
but we felt like we needed them to have the complete picture.
And so that’s what the motion was filed for. . . .
Was this overkill? It may have been overkill in terms of the
document production. But I could also have buried them in
interrogatories and requests for admissions and all that kind of stuff.
That was not my intent. If that had been my intent, I know how to paper
discovery.
But I had Ms. Estrada's representation that she would send me
the documents she had, and I believe that she did. But there were still
some missing, and that’s what we were trying to get to.
....
There was no - - no indication in anyway of that motion could
have harrassed [sic] the respondents at all. That is they weren’t - - we
didn’t have a deposition - - we didn’t have a mediation date on the day
that was filed. I was - - it was not - - we had not mediated.
....
I did not feel like it was appropriate just to simply ignore that date,
and so that’s what the motion to extend time was intended to do, is to
not ignore what the court had ordered and to get some extra time to
hopefully get some documents so that we could mediate at that time.
That created no prejudice to [Stewart]. They hadn’t mediated yet
and that was giving them more time to get that done.
[Emphasis added.]
17
Stewart’s counsel pointed out that not all of the pay stubs were necessary
because Pearson’s counsel had Stewart’s W -2s for 2007 and 2008, and he could
have calculated Stewart’s pay with that information and the existing pay stubs.
After the hearing, the trial court ordered sanctions specifically under rule 13,
stating, “The Court finds that Rule 13 would support a groundless [sic] and brought
for the purpose of harassment and needless delay as well.” 8 However, the trial court
sanctioned Pearson herself, stating
I’m sanctioning [Pearson] for $850 to be paid to Mrs. Estrada for
the harassment and delay, and needlessly increasing the cost of
litigation caused with the request for information on the payroll records
that you have [been] privy to and that could have determined the child
support amounts from that. I find that was excessive and needless and
increased costs for the other side unnecessarily.
Analysis
Pearson contends that there is no evidence to support a finding that she acted
in bad faith. 9 The only evidence regarding Pearson’s involvement is Stewart’s
testimony that she became convinced he was hiding money. But there is no
evidence regarding her knowledge of or complicity in the filing of the motion at issue.
Her counsel did not indicate that she approved of the filing, and although he
8
The trial court had previously found that Pearson’s counsel filed the motion
to extend erroneously, but not frivolously, before initially declining to award
sanctions. But the trial judge changed her mind after additional argument.
9
Because the trial court ordered Pearson rather than her attorney to pay the
sanctions, we must determine whether sanctions against only Pearson herself are
just. See Am. Flood Research, Inc., 192 S.W .3d at 583; TransAm., 811 S.W .2d at
917.
18
referenced her fear that Stewart was not being forthcoming with his financial
information, he stated that he needed the records to get a complete picture for his
client, even though he could have gleaned the needed information from the
documentation already provided him. Here, the conduct at issue is clearly that of
Pearson’s counsel and not of Pearson herself, other than her reliance on his
representation.10 Thus, there is no evidence of any improper motive on Pearson’s
part in filing the motion. Accordingly, we conclude and hold, on the facts of this
record, that Stewart failed to overcome the presumption of good faith as to Pearson
and that the trial court abused its discretion by imposing sanctions against Pearson.
See Low, 221 S.W .3d at 614; Am. Flood Research, Inc., 192 S.W .3d at 584–85;
Glass v. Glass, 826 S.W .2d 683, 687 (Tex. App.—Texarkana 1992, writs denied).
W e conclude and hold that the trial court abused its discretion by imposing
sanctions against Pearson. W e sustain her second issue.
Conclusion
Having overruled Pearson’s first issue, we affirm the trial court’s order denying
her motion to modify, correct, or reform the agreed decree. But having sustained her
second issue, we reverse the trial court’s March 19, 2009 order imposing sanctions
10
In arguing the propriety of sanctions, Stewart’s counsel even asserted that
the filing of the motion to extend showed a course of conduct by Pearson’s counsel,
relying on a prior opinion in which a trial court had sanctioned him in a different case.
See Elkins v. Stotts-Brown, 103 S.W .3d 664, 667 (Tex. App.—Dallas 2003, no pet.).
19
against Pearson and order that Stewart take nothing from Pearson on his sanctions
motion.11
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and W ALKER, JJ.
DELIVERED: May 6, 2010
11
Stewart did not file his own notice of appeal. Thus, even if we were to
determine that sanctions were otherwise proper, we could not modify the sanctions
order to order Pearson’s counsel to pay the award, nor remand for the trial court to
consider sanctioning Pearson’s counsel. See Tex. R. App. P. 25.1(c); State v.
Brown, 262 S.W .3d 365, 370 (Tex. 2008); Sellers v. Foster, 199 S.W .3d 385, 402
n.13 (Tex. App.—Fort W orth 2005, no pet.).
20