Review of
Litigation
Winter, 1991
*59
CERTIFIED PLEADINGS: INTERPRETING TEXAS RULE 13 IN LIGHT OF FEDERAL RULE 11
Copyright (c) 1991 by the University of Texas Law School
Publications, Inc.; Alan B. Rich
Table of Contents
I.
Introduction
II. The
Development of Texas Rule 13
III. An
Overview of Texas Rule 13
A. What
Constitutes a Violation of Texas Rule 13?
B. What
Legal Standard Applies to Alleged Violations?
C. The
Certifications-Independent or Dependent?
D. Who
Can Violate Texas Rule 13?
E. Must A
Violation of Texas Rule 13 Be Punished?
IV.
Available Sanctions For Texas Rule 13 Violations
V.
Protections For The Alleged Violator
A. Notice
and Hearing
B.
Particularity of the “Good Cause” Requirement
VI.
Post-Sanction Appellate Remedies
VII. Other
Potential Pitfalls
VIII.
Conclusion
I.
Introduction
Texas Rule of Civil Procedure 13, the state-court counterpart to Federal Rule of Civil Procedure 11, addresses sanctions for signing
pleadings that are not legally or factually supported, and that are submitted
in bad faith or to harass. This Article is intended to impart a working
knowledge of Texas Rule 13, including knowledge not only of how and by whom the
rule can be violated, but also the legal standard used to judge violations,
whether violations must be punished, who can be punished for violations, and
the permissible punishments for violations. Additionally, practitioners*60
need to be aware of the procedural protections and appellate remedies that are
available to alleged violators.
The subtle
differences in both the language and organization of Federal Rule 11 and Texas Rule 13 may or may not have
profound effects upon the applicability of the federal precedents. However,
because much of the Texas rule's language has not yet been addressed by Texas
courts-whereas corresponding portions of Federal Rule 11 have been addressed by federal
courts-comparisons between portions of the two rules are necessary. To that
extent, this Article will also be an update on Federal Rule 11.
II. The
Development of Texas Rule 13
Texas Rule
13 is based upon Texas District and County Court Rule 51. [FN1] Rule 13 was rewritten in 1988 under the
influence of Federal Rule 11 and recently amended again, effective
September 1990, [FN2]
primarily to strengthen its efficacy.
For
virtually one hundred years prior to the 1988 amendment, Texas Rule 13 and its
predecessor, District and County Court Rule 51, read as follows:
Any
attorney who shall bring a fictitious suit as an experiment to get an opinion
of the court, or who shall file any fictitious pleading in a cause for such a
purpose, or shall make statements in pleading presenting a state of case which
he knows to be groundless and false, for the purpose of securing a delay of the
trial of the cause, shall be held guilty of a contempt; and the court, of its
own motion, or at the instance of any party, will direct an inquiry to
ascertain the fact. [FN3]
The
following represents the current Rule 13, with the eliminated 1988 additions
shown in italics, and the 1990 additions to the Rule shown in capital letters:
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. Attorneys or parties who shall *61 bring a
fictitious suit as an experiment to get an opinion of the court, or who shall
file any fictitious pleading in a cause for such a purpose, or shall make
statements in pleading which they know to be groundless and false, for the
purpose of securing a delay of the trial of the cause, shall be held guilty of
a contempt. 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 sanctions available under Rule 215-2b,
upon the person who signed it, a represented party, or both.
Courts
shall presume that pleadings, motions, and other papers are filed in good
faith. No sanctions under this rule may be imposed except for good cause, the
particulars of which must be stated in the sanction order. “Groundless” for
purposes of this rule means no basis in law or fact and not warranted by good
faith argument for the extension, modification, or reversal of existing law.
The court may not impose sanctions for violation of this rule if, before the
90th day after the court makes a determination of such violation or prior to
the expiration of the trial court's plenary power, whichever first occurs, the
offending party withdraws or amends the pleading, motion, or other paper, or
offending portion thereof to the satisfaction of the court. A general denial
does not constitute a violation of this rule. The amount requested for damages
does not constitute a violation of this rule. [FN4]
The
official comment to the 1990 amendment indicates that the reasons for the
changes are “[t]o require notice and hearing before a court determines to
impose sanctions, to specify that any sanction imposed be appropriate, and to
eliminate the 90-day ‘grace period’ provided in the former version of the
rule.” [FN5]
The Texas
Rules of Civil Procedure often make reference to a federal rule if the Texas
rule is based, in whole or in part, on a federal rule. [FN6] Indeed, Federal Rule 11 is cited as a source for *62 one
of the Texas rules, Rule 57 which addresses the name and address requirements
for signers of instruments. [FN7]
However, notably absent from the official comments and historical notes is any
assertion that Federal Rule 11 is a source or basis for Texas Rule 13.
It is
possible that the drafters of the Texas rule deliberately omitted any reference
to Federal Rule 11 in order to free Texas state courts from
federal influence in interpreting Texas Rule 13. It is also possible that the
omission was merely a mistake. The reason for the omission, however, is of
importance. A deliberate omission could be interpreted as an effort to avoid
the effect of cases suggesting that federal precedents should be followed in
making decisions about those Texas Rules of Civil Procedure that are patterned
after federal rules. [FN8]
III. An
Overview of Texas Rule 13
A. What
Constitutes A Violation of Texas Rule 13?
Under
Texas Rule 13, the signer of any paper filed with the court must read the
instrument and be satisfied after reasonable inquiry that both of the rule's
two tests are met. Sanctionable conduct can thus occur in two different ways: [FN9] (1) the filing must not be “groundless
and brought in bad faith” [FN10] or
(2) the filing must not be “groundless and brought for the purpose of harass *63
ment.” [FN11]
“Groundless” is defined in a later portion of the rule as having “no basis in
law or fact and not warranted by good faith argument for the extension,
modification, or reversal of existing law.” [FN12]
The analogous portion of Federal Rule 11 reads as follows:
The
signature of an attorney or party constitutes a certificate by the signer that
the signer has read the pleading, motion, or other paper; that to the best of
the signer's knowledge, information, and belief formed after reasonable inquiry
it is well grounded in fact and is warranted by existing law or a good faith
argument for the extension, modification, or reversal of existing law, and that
it is not interposed for any improper purpose, such as to harass or to cause
unnecessary delay or needless increase in the cost of litigation. [FN13]
In
comparison with Federal Rule 11, the portion of the Texas rule addressing
precisely what constitutes a violation appears awkwardly drafted. However,
given the similar language used by both rules, one is tempted to conclude that
conduct in violation of one rule would be sufficient as a violation of the
other. Yet, as discussed below, the structure and language of the Texas rule
may be interpreted in a way that puts it at odds with Federal Rule 11 on a very significant question-the
question of whether the various certifications being made by the signer are
independent of or dependent upon one another. [FN14]
Under
federal law in the Fifth Circuit, the violation of Federal Rule 11, if one occurs at all, occurs when the
document is signed; in other words, a purported violation is examined as if a
snapshot were taken at the moment of signing. [FN15]
The signer's conduct is examined within that time frame and in that context. [FN16] A Texas court of appeals has recently
held that Texas Rule 13 incorporates *64 the same “snapshot” theory. [FN17] Federal circuits have differed on this
issue, however, sometimes holding that Federal Rule 11 imposes a continuing obligation to
re-evaluate past filings. [FN18]
Therefore,
even if Texas courts were to attempt to follow federal court interpretation, it
is unclear how they would analyze the “continuing duty” question. In any event,
courts, as a practical matter, are not powerless to impose sanctions when
instruments that were not sanctionable when filed become sanctionable upon the
occurrence of subsequent events. For example, if a pleading or discovery
request becomes sanctionable after filing, any future filings based thereon may
also be sanctionable for being unsupported by any document laying a valid legal
or factual predicate for that subsequent filing. [FN19]
B. What
Legal Standard Applies to Alleged Violations?
Federal Rule 11 is violated based on an objective
standard of whether a reasonable person would believe that a pleading is not
well grounded both factually and legally. [FN20]
The source of this standard is the 1983 amendments to Federal Rule 11, which inserted the “reasonable inquiry”
language into a rule which, to that point, had imposed a standard of subjective
good faith. [FN21]
No
reported Texas case has addressed whether the proper standard under Texas Rule
13 is to judge the signer's conduct objectively or according to the signer's
subjective state of mind. Although Texas Rule 13 does not state that it is
based upon Federal Rule 11, [FN22] a
very compelling argument can be made that, because Texas Rule 13 uses the same
“reasonable inquiry” language found *65 in the 1983 amendments to
Federal Rule 11, the Texas rule contemplates an objective standard. [FN23]
C. The
Certifications-Independent Or Dependent?
Assuming
that the rules share an objective standard does not necessarily mean that the
same conduct in federal and Texas courts would be deemed to similarly violate
their respective certifications rules. A key question is why the drafters of
Texas Rule 13 did not adopt the federal formulation, which treats a signature
as (1) an affirmative certification that the pleading is “well grounded in fact
and law” (either as the law exists or as the pleader has good-faith reason to
believe the law should be modified) and (2) a negative certification that the
pleading is not submitted for any “improper purpose.” [FN24] These two certifications are treated as
independent under federal law; that is, one need not violate both
certifications to be deemed in violation of the rule, [FN25] as a violation of the “well founded in
fact and law” certification will subject the signer to Rule 11 sanctions,
regardless of whether the “improper purpose” certification was simultaneously
violated. [FN26]
In
contrast, the Texas rule's language is ambiguous as to whether the
certification that the pleading is “not groundless” and the certification that
the pleading is “not in bad faith” or “for *66
harassment” must both be incorrect before the conduct is sanctionable. The
ambiguity arises because of the grammatically odd structure of the two
certification standards, each of which contains the term “groundless.” The
signer must certify that the instrument is neither (1) “groundless and brought
in bad faith”, nor (2) “groundless and brought for the purpose of harassment.” [FN27] The only logical explanation for this
grammatical formulation is that it represents a deliberate attempt by Texas
Rule 13's drafters to make more difficult the separation of improper purpose
from groundlessness under Texas Rule 13, thus giving the Texas rule a meaning
different from Federal Rule 11.
Hence, a
strong, textually supported argument can be made that a filing that is merely
groundless does not violate Texas Rule 13 unless it is also brought in bad
faith or to harass. Accepting this interpretation, however, would have a
profound and debilitating impact upon Texas Rule 13. Under a “dependent”
construction of Texas Rule 13, sanctions would be unavailable to a party
injured by a wholly groundless petition, [FN28]
motion, or discovery request [FN29]
unless it could also be shown that the pleader had filed or served the
offending instrument in bad faith or for the purpose of harassment. No reported
Texas case to date has addressed the relative dependence or independence of
these elements of Texas Rule 13. [FN30]
The
ambiguity under Texas Rule 13 indicates a clear need for the rule's revision to
ensure that the groundlessness element and the bad-faith/harassment elements of
the rule are treated independently. Having a clearer grammatical structure for
Texas Rule 13 is critical, given the existence of conflicting case law such
that *67 opposing litigants can find valid, unoverturned cases to
support their positions. Although the vast majority of cases evaluating Federal
Rule 11's “improper purpose” certification have relied on an objective
standard, there is a significant minority that have applied a subjective
standard in such situations. [FN31]
Certainly, if one examines improper purposes such as cost multiplication or
delay, an objective standard is not difficult to apply. However, can a court
truly decide a question of bad faith or harassment using a “reasonable person”
standard? These terms necessarily refer to a subjective state of mind.
Not being
bound by federal precedents, and, more importantly, given the completely
different structure of the Texas rule, Texas courts should construe the
certifications of Texas Rule 13 as dependent. Moreover, the rule as currently
written seems to embrace the subjective standard for inquiries into whether a
certification was made in bad faith or for harassment. [FN32] Therefore, before imposing any
certification-based sanction, a Texas court must answer two inquiries in the
affirmative: (1) the objective element- whether the instrument is groundless-and
(2) the subjective element-whether the instrument is a product of bad faith or
harassment. Just as Federal Rule 11 was ineffective prior to amendments in
1983, Texas Rule 13 will suffer the same fate if not rewritten or clarified by
the Texas Supreme Court.
D. Who Can
Violate Rule 13?
Texas Rule
13 is an equal opportunity rule-anyone can violate it. Although this point is
obvious as to signers such as attorneys representing parties, or parties
appearing pro se, the point is not so obvious regarding a represented party who
signs. The issue of whether a represented party who signs a court paper can be
sanctioned under Federal Rule 11 was recently addressed by the United States
Supreme Court. In Business Guides, Inc. v. *68 Chromatic Communications
Enterprises, Inc., [FN33]
the Court held that such a signer was indeed subject to sanction-but by a
narrow 5-4 vote.
Texas Rule
13 and Federal Rule 11 use the same language in describing those subject to
sanctions as a “person” who has signed improperly. Consequently, Texas courts
might be expected to interpret Texas Rule 13 as the Supreme Court interpreted
Federal Rule 11 in Business Guides. After reading Business Guides, however, one
can be left with the firm belief that, given the language of the rule and its
history, both the majority and minority take equally plausible positions on
this question. [FN34]
There can, therefore, be no assurances that a Texas court would agree with the
reasoning of the majority, as opposed to the minority, in Business Guides.
As for the
closely related question of who can be sanctioned for a violation-rather than
who can violate the rule-Texas Rule 13, like Federal Rule 11, states that “the
person who signed it, a represented party, or both” may be sanctioned. Again,
the rule's reference to “person” creates some ambiguity. Interpreting Federal
Rule 11, the United States Supreme Court has held that the individual
attorney/signer can be sanctioned, but not the attorney's firm. [FN35]
In Pavelic
& LeFlore v. Marvel Entertainment Group, the Supreme Court viewed the
certification duties imposed under Federal Rule 11 as personal and
non-delegable. [FN36]
The Court may have taken a somewhat inconsistent position on this question of
agency law in its recent decision in Business Guides. In Business Guides, the
Court allowed the imposition of sanctions on a represented corporate party,
rather than the individual corporate officer who improperly signed. The Court
distinguished Pavelic & LeFlore by referring to Federal Rule 11's command
that an attorney sign “in the attorney's individual name.” [FN37]
*69
The Supreme Court's Pavelic & LeFlore opinion, which was an 8-1 decision,
may well be followed by Texas courts. Because the language about who signs and
who may be sanctioned is the same in Texas Rules 13 and 57 as it is in Federal
Rule 11, one would expect individuals to be the ones subject to sanctions.
However, there are no guarantees that Pavelic & LeFlore will be followed in
Texas, given that a Texas court is not bound by the construction of Federal
Rule 11.
E. Must A
Violation Of Rule 13 Be Punished?
Texas Rule
13 uses mandatory language when discussing whether a violator should be
sanctioned: “If a pleading, motion or other paper is signed in violation of
this rule, the court . . . shall impose an appropriate sanction . . . .” [FN38] The language of Federal Rule 11 is
substantially the same. Accordingly, sanctions are mandatory once a violation
of the certification rule occurs, both in Texas courts and in federal courts. [FN39]
IV.
Available Sanctions For Rule 13 Violations
The
position regarding Federal Rule 11 in the Fifth Circuit is “that the sanction
imposed should be the least severe sanction adequate to the purpose of Rule
11.” [FN40]
Texas Rule 13 imposes several additional restraints. Sanctions available under
Texas Rule 13 are limited to “an appropriate sanction available under Rule
215-2b.” [FN41]
The Texas Supreme Court has also held that any sanction imposed under the Texas
Rules of Civil Procedure for failure to obey an order “must always be
appropriate to the circumstances of the case.” [FN42]
Recently,
the Texas Supreme Court established more concrete guidelines for gauging the
appropriateness of sanctions imposed *70 under Texas Rule 215-2b, and
thus under Texas Rule 13. In Transamerican Natural Gas Corp. v. Powell, [FN43] the court held:
[W]hether
an imposition of sanctions is just is measured by two standards. First, a
direct relationship must exist between the offensive conduct and the sanction
imposed. This means that a just sanction must be directed against the abuse and
toward remedying the prejudice caused the innocent party. It also means that
the sanction should be visited upon the offender. The trial court must at least
attempt to determine whether the offensive conduct is attributable to counsel
only, or to the party only, or to both . . . . The point is, the sanctions the
trial court imposes must relate directly to the abuse found.
. . .
Second,
just sanctions must not be excessive. The punishment should fit the crime. A
sanction imposed for discovery abuse should be no more severe than necessary to
satisfy its legitimate purposes. It follows that courts must consider the
availability of less stringent sanctions and whether such lesser sanctions
would fully promote compliance. [FN44]
Thus,
similar to federal courts, Texas courts imposing sanctions under the
certifications rule are limited to the least severe sanction that will “fit the
crime” and satisfy the policies behind the rule. Of course, the “least severe
sanction” may still be one of the ultimate sanctions such as stricken pleadings
or default judgments. [FN45]
Significantly,
Texas Rule 13 specifically limits the types of sanctions a trial judge may impose.
Texas Rule 13 directs judges to Texas Rule of Civil Procedure 215-2b, which lists the available sanctions. [FN46] In addition to authorizing such orders
“as are just,” *71 Texas Rule 215-2b specifically authorizes eight
different sanctions that may be imposed for violation of Texas Rule 13. [FN47]
A few
Texas cases have addressed the types of sanctions available for Texas Rule 13
violations. The following sanctions have been imposed by trial courts pursuant
to the rule, and upheld on appeal: reasonable attorneys' fees, [FN48] costs of court, [FN49] dismissal of the case, [FN50] and staying further action in the case
(except appeal of the sanction order) pending satisfaction of the sanctions. [FN51] These are the most common sanctions,
although one may presume that all of the sanctions in the numbered
sub-paragraphs of Rule 215-2b would be allowed in appropriate circumstances.
Significantly,
one trial court imposing a sanction that was not encompassed within the eight
numbered sub-paragraphs of Texas *72 Rule 215-2b was reversed on appeal.
In Watkins v. Pearson, [FN52]
the trial court imposed a sanction of $120,000, divided equally between the
lawyer and the client. From the facts recited in the opinion, it is clear that
the $120,000 far exceeded reasonable or actual attorney's fees and costs in the
litigation. [FN53]
The court of appeals reversed the sanctions, holding, inter alia, that “the
magnitude of the sanctions does not seem to fit within any of the eight
remedies listed in Tex. R. Civ. P. 215-2b which are allowable under Rule 13.” [FN54]
Watkins
thus presents what is by far the most difficult question regarding allowable
sanctions under Texas Rule 13: Can the court impose a sanction for the rule's
violation that is not found in the eight numbered sub-paragraphs of Texas Rule
215-2b? [FN55]
The Watkins case seems to indicate that notwithstanding the prefatory paragraph
of Texas Rule 215-2b, sanctions for a Texas Rule 13 violation are limited to
the eight numbered paragraphs of Texas Rule 215-2b. [FN56] Recently, however, in Kahn v. Garcia, [FN57] an appellate court implied that the
sanctions available pursuant to Texas Rule 13 are not in fact so limited. In
Kahn, the court noted that
Rule 13
authorizes a court to utilize sanctions available under Rule 215(2)(b). The enumerated sanctions under 215(2)(b)
do not provide for an order [containing the sanction entered by the trial
court]. The rule states, however, that the court may “make such orders in
regard to the failure as are just . . . .” [FN58]
*73
The prefatory paragraph of Texas Rule 215-2b does, in fact, allow virtually any
just and appropriate sanction, not simply within the enumerated eight
categories. It is therefore reasonable for one to be mystified as to why Texas
Rule 13 speaks specifically in terms of imposing only those sanctions that are
available under Texas Rule 215-2b if the limitation is really no limitation at
all, given the language in the prefatory paragraph of Texas Rule 215-2b. It is
unlikely that the drafters of Texas Rule 13 intended such an unusual
construction. The Texas Supreme Court must clarify this important point during
the current rules revision process.
V.
Protections For The Alleged Violator
Texas Rule
13 contains procedural protections for those who are accused of violating its
provisions. First, sanctions cannot be imposed without “notice and hearing.” [FN59] Second, sanctions can be issued only for
“good cause, the particulars of which must be stated in the sanction order.” [FN60]
A. Notice
and Hearing
Prior to
its September 1990 amendment, Texas Rule 13 did not expressly require notice
and a hearing before the imposition of sanctions. [FN61] Although notice and a hearing are now
required under the rule, this requirement is subject to creative
interpretation. In Goad v. Goad, [FN62] a
Texas court of appeals found that a prayer for sanctions contained in an answer
constituted notice; [FN63]
attendance*74 at a hearing where sanctions were granted was deemed
sufficient as well. [FN64]
Conversely, in D.A. Buckner Construction, Inc. v. Hobson, [FN65] an appellate court reversed the trial
court's imposition of a $500 sanction for failing to replead a counterclaim
properly after special exceptions had been granted. The sanction had
accompanied the court's order to replead. The court of appeals held that no
notice or hearing occurred in this case and reversed the sanction order. [FN66]
The best
that can be surmised from the limited case law is that some notice is always
required before sanctions are imposed, and that a motion for sanctions
constitutes adequate notice. Certainly, the drafters of the 1990 amendment
inserted the “notice and hearing” requirement into the rule for a reason. It is
possible that the intent was to distinguish Texas Rule 13 from Federal Rule 11
and leave the Texas rule free from impractical federal precedents in this area.
Federal Rule 11, which contains no express notice-and-hearing requirement,
leaves the question of notice and hearing to the vagaries of a difficult, ad
hoc due process determination.
No Texas
cases have addressed the question of whether a live hearing must be held prior
to the imposition of sanctions and, if so, whether the hearing must be an
evidentiary one. [FN67] In
all of the reported cases involving sanctions, however, courtroom hearings were
held, and some were apparently evidentiary hearings. [FN68] Considering the 1990 amendments to Texas
Rule 13, which expressly added the notice-and-hearing requirement, along with
the widespread availability of hearings on other issues, it is unlikely that
any hearing on a motion for sanctions could justifiably be withheld.
*75
B. Particularity of the “Good Cause” Requirement
The
question of “good cause, the particulars of which must be stated in the
sanction order,” [FN69]
has received much more attention than any other aspect of Texas Rule 13
jurisprudence. Unfortunately, the cases are not entirely consistent on what
constitutes sufficient particularity of delineating sanctionable conduct in an
order, or even whether a formal order is required.
In P.N.L.,
Inc. v. Owens, [FN70]
the order awarding sanctions apparently consisted of a statement of the judge
into the record at the sanctions hearing: “Well, I think your conduct and your
client sic fall below the minimum standards for an attorney practicing in this
court, sir. I really do.” [FN71]
Despite the order's lack of specificity, the court of appeals upheld the award.
[FN72]
Undoubtedly, the court of appeals' affirmance was based upon the transcript of
the sanctions hearing, which contained argument and testimony. Even though the
case appears inconsistent with the express language of Texas Rule 13, Owens
stands for the proposition that a separate written order is unnecessary if the
record of the sanctions hearing adequately indicates particular, sanctionable
acts.
In Powers
v. Palacios, [FN73]
another appellate court reached a similar result, albeit by a different route.
In Powers, the court of appeals' opinion quoted excerpts from a hearing on the
motion for sanctions. [FN74]
Addressing the point of error alleging lack of a particularized sanctions
order, the court of appeals specifically acknowledged that there was “no
recital of facts constituting good cause, or express finding of good cause, in
the order.” [FN75]
Nevertheless, the court of appeals found:
[U]nder
TEX. R. APP. P. 81(b)(1), we do not reverse unless an error amounts to such a
denial of appellants' rights as was reasonably calculated to cause and probably
did cause the rendition of an improper judgment, or probably prevented a proper
presentation to the appellate court. [FN76]
*76
Thus, in determining that the defendant's failure to follow the unambiguous
command of Texas Rule 13 constituted an error of law, the court of appeals
upheld the sanctions award, even though the error was found to be harmless in
this particular case. [FN77]
The Powers
court was not the only one to eviscerate the particularized-order requirement
of Texas Rule 13 via the appellate rules. In McGuire v. Post Oak Lane Townhome
Ass'n, [FN78] a
trial court imposed sanctions after the trial on the merits, during which the
defendant proved to the court's satisfaction that the plaintiff's claims
(presented pro se) were groundless, in bad faith, and brought for the purpose
of harassment. [FN79]
The court awarded attorney's fees to the defendant. No order, other than the
judgment, was apparently entered on the sanction.
The court
of appeals, acknowledging that Texas Rule 13 provided the only basis for the
fee award, held that “[w]ithout a statement of facts, [the] plaintiff cannot
successfully argue that the [defendant] did not prove it was entitled to
attorney's fees under rule 13.” [FN80]
The court of appeals thus relieved the beneficiary of the sanction award of any
burden to ensure that a proper sanctions order (or any other memorialization of
the hearing) be placed in the record. The court then added the following coup
de grace:
[I]f we
were to interpret plaintiff's point of error as a challenge to the sufficiency
of the evidence, without a statement of facts or findings of fact [regarding
the sanctions award], we would presume that the judgment is supported by
presumed findings, and the presumed findings are supported by the evidence. [FN81]
Therefore,
only the party losing on the sanctions motion at the trial-court level will
suffer if the commands of Texas Rule 13 are ignored such that no sanctions
order or findings are entered, or no record of the hearing is made. In those
circumstances, a sanctioned party has no hope of reversing the sanctions on
appeal. As *77 a practical matter, therefore, parties who have even a
remote belief that sanctions might be issued at a hearing should insist that
the hearing be on the record.
The
McGuire opinion hardly comports with Texas Rule 13's specificity requirement,
which was obviously designed to make sure that sanctions are imposed properly.
Furthermore, the McGuire rule runs counter to the precise language of Texas
Rule 13, which prefaces its particularized-order requirement by stating that
“[c]ourts shall presume that pleadings, motions, and other papers are filed in
good faith.” [FN82] If
there is no formal order setting forth the particulars of good cause in order
to overcome this presumption, the presumption seemingly should prevail;
however, the McGuire court effectively reversed this presumption.
It also
seems odd that the sanctions rules should be so drastically different from the
rules regarding the form of order that can support a finding of contempt. For
example, a sanction under Texas Rule 13 of $120,000 is obviously a greater
deprivation of property than a $500 fine for contempt. Yet, in analyzing a
punishment for contempt, if there is no proper order adequately supporting the
court's action, the contempt citation is invalid. [FN83] The inconsistency is all the more
inexplicable given that one sanction available under Rule 13 is an order of
contempt. [FN84]
Recently,
the Texas Supreme Court strongly advised trial courts to make explicit findings
before imposing any sanctions for discovery abuse, [FN85] even though the discovery sanctions provision
contains no express requirement of trial court findings. [FN86] Courts of appeals' decisions that have
taken a lax attitude toward the enumerated-findings requirement of Texas Rule
13 must be analyzed in light of this recommendation. Given the Texas Supreme
Court's expressed inclination concerning findings in situations where such
findings are not specifically required, presumably the supreme court will
require them when they are indeed specifically required by a rule (e.g., Texas
Rule 13).
*78
There is but a single reported case, Cloughly v. N.B.C. Bank-Seguin, N.A., [FN87] where a Texas Rule 13 sanctions order has
been entered by the trial court and upheld as having met the
particularized-order requirement of Texas Rule 13. However, a review of the
order shows that, in fact, the order is not very particular at all. [FN88] Most of the grounds set out in the order
were conclusions of the court without a recitation of factual or legal support.
Certainly, a more particularized order would be easier to defend on appeal.
Moreover, this minimum standard established in Cloughly may be in peril after
Transamerican Natural Gas. [FN89]
In fact,
in the only post-Transamerican Natural Gas case to address the
particularized-order requirement, the appellate court in Kahn v. Garcia
reversed the sanctions in part because of the lack of a particularized
order. [FN90]
The Kahn court stated, in no uncertain terms,
Rule 13
imposes a duty on the trial court to point out with particularity the acts or
omissions on which sanctions are based. Thus, an order imposing sanctions for
pleadings, motions and other papers under rule 13 differs markedly from an
order imposing sanctions for discovery abuse under rule 215. . . . While respondent's order states
that the motions for sanctions are “meritorious,” the order contains no
specific mention of what *79 conduct on the part of relator was good
cause for imposition of sanctions. [FN91]
Transamerican
Natural Gas and Kahn may indicate a trend towards a constriction of the
particularized-order requirement of the rule. Attorneys practicing in Texas
state courts should keep this interpretation carefully in mind.
VI.
Post-Sanction Appellate Remedies
Until
recently, Texas appellate courts had reached conflicting conclusions regarding
the remedies available to the sanctioned person after the imposition of
sanctions. Some cases held that mandamus is an appropriate remedy, [FN92] others held that it was not, [FN93] and others were inconclusive. [FN94] The Texas Supreme Court has now decided
that mandamus is available for certain kinds of sanctions, but there are other
sanctions for which appellate review is the only remedy. In Braden v. Downey, [FN95] the supreme court held that any sanction
that “threatens a party's continuation of the litigation” [FN96] or for which “no relief on appeal can
ever . . . make him whole” can be challenged by way of mandamus. [FN97] Mandamus is thus appropriate where one of
the “ultimate” sanctions-such as dismissal, default, or stricken pleadings-has
been imposed but final judgment has not been rendered in the case. [FN98]
On the
other hand, monetary sanctions that do not threaten a litigant's ability to
prosecute or defend the case can be challenged only on appeal after final
judgment. [FN99]
However, severe monetary sanctions that do indeed threaten a litigant's ability
to prosecute *80 or defend on the merits can be the subject of mandamus.
[FN100]
Nevertheless, no sanction-either monetary or non-monetary-can be the subject of
mandamus if the execution of the sanction is delayed until after the entry of a
final judgment. [FN101] In fact, the Texas Supreme Court in
Braden encouraged trial courts to delay compliance with all “severe” sanctions
until such time as appeal is available, and granted mandamus relief only to the
extent of ordering the trial court to postpone the effective date of the
sanctions until appeal becomes available. [FN102]
Texas Rule 13 sanctions orders are appealable after final judgment, [FN103] and will be judged under an
abuse-of-discretion standard, not de novo. [FN104]
When
sanctions are imposed on an attorney and client jointly, the attorney must
remember to appeal both in the attorney's name and on behalf of his or her
client. In Watkins v. Pearson, [FN105]
the client and the attorney were each sanctioned $60,000 for violations of
Texas Rule 13. [FN106]
On appeal, the court reversed the sanctions imposed upon the client because the
sanctions order violated several aspects of the rule. However, the attorney
failed to perfect an appeal in his own name. The court of appeals held that
sanctions imposed on an attorney are neither derivative of the client's sanction
nor collective. [FN107]
Therefore, reversal of the client's sanction did not automatically entitle the
attorney to a reversal of the sanctions against him. [FN108] The court then rendered judgment on the
$60,000 sanction against the attorney. [FN109]
*81
VII. Other Potential Pitfalls
Beware
that Texas Rule 13 can be applied against a party even after dismissal of a
suit. For example, under the rule, a party cannot avoid being sanctioned by
non-suiting the case, even if the non-suit is a matter of right. [FN110] This result is in accord with federal
practice. [FN111]
If a case
is removed from state court to federal court, whether or not the pleading
violates Texas Rule 13 becomes irrelevant. The question becomes whether the
documents originally filed in state court violate Federal Rule 11 when viewed
as of the date of removal. [FN112]
No duty to modify the previous state filing will arise unless the “deficiency
is promptly brought to the attention of the pleader after removal, and he (or
she) refuses to modify them to conform to Rule 11.” [FN113] This rule is consistent with the absence
of any continuing duty to monitor past filings for compliance with Federal Rule
11, [FN114]
for in this context it is actually the refusal to cure the newly developed or
discovered deficiency that consummates the violation.
A final
consideration is the problem addressed in City of Houston v. Harrison, [FN115] involving the issue of discovery under
Texas Rule 13. In Harrison, the court of appeals held that the trial judge did
not abuse his discretion in ordering that a lawyer be deposed for the purpose
of determining what “reasonable inquiry” the lawyer performed prior to filing a
suit on his client's behalf. [FN116]
Undoubtedly, almost any pointed question in this regard would relate to
privileged conversations with the client or the lawyer's own work-product.
Regardless of whether the information is privileged or not, the potential abuse
of what might be *82 termed “Rule 13 discovery” is staggering. Yet, if
bad faith or a harassing purpose is a subjective element of a Texas Rule 13
violation, [FN117]
such discovery may become commonplace.
VIII.
Conclusion
Unfortunately,
Texas Rule 13 jurisprudence contains more questions than answers. Before the
rule can be correctly and consistently applied and followed, the Texas Supreme
Court must use its rulemaking power to clarify whether the certifications
required by the rule are independent (as they should be) or dependent. The
court must also determine whether the standard of evaluation for conduct is
objective, subjective, or a combination of both. Additional clarification is
needed regarding the permissible sanctions that may be imposed in accordance
with Texas Rule 13, particularly whether sanctions are limited to those
enumerated in the eight subparagraphs of Texas Rule 215-2b. The potential for
creative interpretation in this area makes it fertile ground for abuse. An
“appropriate” sanction could range from $0 to $100,000, depending upon a myriad
of subjective factors, which will not necessarily be the same in each judge's
mind.
These are
just the major questions. Many other questions, some of which were discussed
above, also need resolution. Although looking to the federal rules may provide
some guidance, Texas practitioners cannot rely upon federal case law to answer
all of the questions. Marked differences exist between the grammatical
construction of Federal Rule 11 and Texas Rule 13, as well as in the standards
applied by the courts. Because of these unanswered questions, practitioners
need to proceed cautiously when faced with potentially sanction-inducing
situations. Until the Texas Supreme Court clarifies the issues surrounding
Texas Rule 13, the rule's application and parameters remain flexible concepts
subject to individual judicial interpretation.
[FNa1].
Junior Shareholder, Johnson & Gibbs, P.C., Dallas, Tex. Member of the Texas
Supreme Court Civil Rules Revision Task Force Consultive Group. A.B. 1981, J.D.
1984, University of Illinois.
[FN1].
See TEX. R. CIV. P. 13 historical note (Vernon 1979).
[FN2].
See TEX. R. CIV. P. 13 (Vernon Supp.1991).
[FN3]. TEX. R. CIV. P. 13 (Vernon 1979).
[FN5]. TEX. R. CIV. P. 13 cmt. (Vernon Supp.1991). According to the
Texas Supreme Court, the addition of the word appropriate as a limitation on
the permissible sanctions for violation of the rule is merely a codification of
existing law. See Koslow's v. Mackie, 796 S.W.2d 700, 703 n.1
(Tex. 1990).
[FN6].
The following current Texas Rules of Civil Procedure state, in the notes and
comments which follow their texts, that they are based upon a Federal Rule of
Civil Procedure, whether in whole or in part: Texas Rules 2, 4, 5, 28, 38, 39,
40, 41, 42, 43, 45, 47, 48, 50, 51, 54, 55, 56, 57, 58, 66, 67, 71, 74, 94, 97,
166, 166a, 167, 167a, 168, 169, 171, 174, 177a, 183, 200, 202, 245, 268, 680, 681, 683, 814, 816, 822.
[FN7]. TEX. R. CIV. P. 57 historical note (Vernon 1979).
[FN8].
See, e.g., Simpson v. Canales, 806 S.W.2d 802, 810-11
(Tex. 1991); RSR Corp. v. Hayes, 673 S.W.2d 928, 931
(Tex. App.-Dallas 1984, writ dism'd). Recently a Texas court of appeals concluded, after a
brief comparison of the language in Texas Rule 13 and Federal Rule 11, that the
two rules are “virtually identical in content,” and that because of an absence
of Texas case law on the sanctions question presented the court would “look to
federal case law interpreting a similar rule.” Home Owners Funding Corp. of Am. v.
Scheppler, 815 S.W.2d 884, 888 & n.1 (Tex. App.-Corpus Christi 1991, no
writ). For the
question presented-the standard of appellate review for Texas Rule 13
findings-the court may have reached the proper result. However, the court's
cursory analysis of the portability of federal case law was incorrect. See
infra Part III of this Article.
[FN9].
This discussion is limited to the consequences of signing a pleading or other
paper in violation of Texas Rule 13. The discussion excludes Texas Rule 13's
original section dealing with a court's ability to declare contempt for making
knowingly false statements in pleadings.
[FN11].
Id.; see also Caserotti v. State Farm Ins. Co., 791
S.W.2d 561, 567 (Tex. App.-Dallas 1990, writ denied); McGuire v. Post Oak Lane Townhome Owners
Ass'n, 794 S.W.2d 66, 68 (Tex. App.-Houston [1st Dist.] 1990, writ denied); Hamilton v. Robertson, 778 S.W.2d 474, 475
(Tex. App.-Houston [1st Dist.] 1988, orig. proceeding).
[FN14].
See infra Part III(C) of this Article.
[FN15]. Thomas v. Capital Sec. Servs., Inc., 836
F.2d 866, 874-75 (5th Cir.1988) (en banc).
[FN16].
Id.
[FN17].
In Home Owners Funding Corp. of Am. v.
Scheppler, 815 S.W.2d 884 (Tex. App.-Corpus Christi 1991, no writ), the court stated in dictum that Texas
Rule 13, like Federal 11, recognizes the existence of a violation by looking to
the circumstances that existed at the time the allegedly violative pleading was
filed. Id. at 889.
[FN18].
See, e.g., Herron v. Jupiter Transp. Co., 858 F.2d
332, 335-36 (6th Cir.1988).
[FN19].
Cf. Foval v. First Nat'l Bank of Commerce, 841
F.2d 126, 130 (5th Cir.1988) (where pleading did not violate Texas Rule 13 when filed, an
intervening change in the governing standard-in this case, to Federal Rule 11 following removal-provides grounds for
sanctions only after the newly arising violation is called to the attention of
the pleader and there is a failure to cure).
[FN20]. Cooter & Gell v. Hartmarx Corp., 110
S.Ct. 2447, 2454 (1990).
[FN21].
Id.
[FN22].
Supra notes 6-7 and accompanying text.
[FN23].
At least insofar as the certificate regarding groundlessness is concerned. See
infra Part V of this Article.
[FN25].
Note that the interpretation that the federal certifications are independent is
by no means an inevitable outcome based upon Rule 11's language. As a matter of statutory
interpretation, federal courts could just as easily have found that the
certifications are dependent, meaning that a violation of both would be
necessary in order to violate Rule 11. See Thomas v. Capital Sec. Servs., Inc., 812
F.2d 984, 988 (5th Cir.1987), modified, 836 F.2d 866 (5th Cir.1988) (en banc); Robinson v. National Cash Register Co., 808
F.2d 1119, 1129-31 (5th Cir.1987).
[FN26]. Note that the converse may not be true:
If only the “improper purpose” certification has been violated-absent a
violation of the “well grounded in fact and law” certification-no violation of
Federal Rule 11 occurs. Courts have held that an improper
motive alone cannot interfere with a litigant's right of access to federal
court on a well-founded claim. Jennings v. Joshua Indep. Sch. Dist., 869
F.2d 870, 878 (5th Cir.), superseded, 877 F.2d 313 (5th Cir.1989); National Ass'n of Gov't Employees v.
National Fed'n of Fed. Employees, 844 F.2d 216, 223-24 (5th Cir.1988). Yet, some federal circuits will allow
sanctions in this situation for pleadings other than complaints. E.g., Aetna Life Ins. Co. v. Alla Medical Servs.,
Inc., 855 F.2d 1470, 1476 (9th Cir.1988).
[FN27]. TEX. R. CIV. P. 13 (emphasis added).
[FN28].
Note that relief would still be available in a suit under the Texas Deceptive
Trade Practices Act, however. See TEX. BUS. & COM. CODE ANN. § 17.50(c) (Vernon 1987) (using language making the
clauses clearly independent).
[FN29].
Note that relief would still be available for discovery abuse under TEX. R. CIV. P. 215(3).
[FN30].
No reported case has rejected, even implicitly, the “dependent” theory. In the
reported opinions from which it was possible to discern the trial court's
reasons for imposing sanctions, all of the cases address situations where both
elements have been present. E.g., McGuire v. Post Oak Lane Townhome Owners
Ass'n, 794 S.W.2d 66, 68 (Tex. App.-Houston [1st Dist.] 1990, writ denied); Cloughly v. NBC Bank-Seguin, N.A., 773
S.W.2d 652, 656 (Tex. App.-San Antonio 1989, writ denied); Powers v. Palacios, 771 S.W.2d 716, 717-18
(Tex. App.-Corpus Christi 1989, writ denied).
[FN31]. 5A CHARLES A. WRIGHT & ARTHUR R.
MILLER, FEDERAL PRACTICE & PROCEDURE § 1335, at 85 (1990).
[FN32].
For groundlessness inquiries the objective standard is easy to apply, and Texas
Rule 13's (like Federal Rule 11's) use of the “reasonable inquiry”
language makes it likely that an objective standard was indeed intended for
examinations of groundlessness. See supra Part III(B) of this Article.
[FN34]. I
am reminded of the apocryphal law student who was asked by a constitutional law
professor what the most important difference was between the majority opinion
and the minority opinion in the case under discussion. The student succinctly
responded, “One vote.”
[FN35].
Pavelic & LeFlore v. Marvel Entertainment Group, 111 S.Ct. 456, 458-60
(1989).
[FN36].
Id. at 460.
[FN37]. Business Guides, 111 S.Ct. at 931. Substantially similar language is present
in TEX. R. CIV. P. 57.
[FN38]. TEX. R. CIV. P. 13 (emphasis added).
[FN39].
See Thomas v. Capital Sec. Servs., Inc., 836
F.2d 866, 876-78 (5th Cir.1988) (en banc) (construing Federal Rule 11); Home Owners Funding Corp. of Am. v.
Scheppler, 815 S.W.2d 884, 888 n.1 (Tex. App.-Corpus Christi 1991, no writ) (construing Texas Rule 13).
[FN40]. Thomas, 836 F.2d at 878.
[FN42]. Koslow's v. Mackie, 796 S.W.2d 700, 703-04
n.1 (Tex. 1990).
[FN43]. 811 S.W.2d 913 (Tex. 1991).
[FN45].
These sanctions, which will effectively terminate a case, are permissible only
if the sanctioned party acted with “callous disregard” or “flagrant bad faith.”
Id. at 918, 919 n.8.
[FN46].
The text of TEX. R. Civ. P. 215-2b is as follows:
b.
Sanctions by Court in Which Action is Pending. If a party or an officer,
director, or managing agent of a party or a person designated under Rules
200-2b, 201-4 or 208 to testify on behalf of a party fails to comply with
proper discovery requests or to obey an order to provide or permit discovery,
including an order made under paragraph 1 of this rule or Rule 167a, the court
in which the action is pending may, after notice and hearing, make such orders
in regard to the failure as are just, and among others the following:
(1) An
order disallowing any further discovery of any kind or of a particular kind by
the disobedient party;
(2) An
order charging all or any portion of the expenses of discovery or taxable court
costs or both against the disobedient party or the attorney advising him;
(3) An
order that the matters regarding which the order was made or any other designated
facts shall be taken to be established for the purposes of the action in
accordance with the claim of the party obtaining the order;
(4) An
order refusing to allow the disobedient party to support or oppose designated
claims or defenses, or prohibiting him from introducing designated matters in
evidence;
(5) An
order striking out pleadings or parts thereof, or staying further proceedings
until the order is obeyed, or dismissing with or without prejudice the action
or proceedings or any part thereof, or rendering a judgment by default against
the disobedient party;
(6) In
lieu of any of the foregoing orders or in addition thereto, an order treating
as a contempt of court the failure to obey any orders except an order to submit
to a physical or mental examination;
(7) When
a party has failed to comply with an order under Rule 167a(a) requiring him to
appear or produce another for examination, such orders as are listed in
paragraphs (1), (2), (3), (4) or (5) of this subdivision, unless the person
failing to comply shows that he is unable to appear or to produce such person
for examination.
(8) In
lieu of any of the foregoing orders or in addition thereto, the court shall
require the party failing to obey the order or the attorney advising him, or
both, to pay, at such time as ordered by the court, the reasonable expenses,
including attorney fees, caused by the failure, unless the court finds that the
failure was substantially justified or that other circumstances make an award
of expenses unjust. Such an order shall be subject to review on appeal from the
final judgment.
[FN47].
See supra note 46.
[FN48]. McGuire v. Post Oak Lane Townhome Owners
Ass'n, 794 S.W.2d 66, 68 (Tex. App.-Houston [1st Dist.] 1990, writ denied).
[FN49].
Id.
[FN50]. Cloughly v. NBC Bank-Seguin, N.A., 773
S.W.2d 652, 656 (Tex. App.-San Antonio 1989, writ denied).
[FN51]. Hamilton v. Robertson, 778 S.W.2d 474, 475
(Tex. App.-Houston [1st Dist.] 1988, orig. proceeding).
[FN52]. 795 S.W.2d 257 (Tex. App.-Houston [14th
Dist.] 1990, writ denied).
[FN53].
See id. at 258.
[FN54]. Id. at 261 (emphasis added).
[FN55].
If the conduct at issue is discovery abuse, a Texas court is given wide
discretion in the type of sanction that can be imposed. Braden v. Downey, 811 S.W.2d 922, 930 (Tex.
1991). The only
questions are whether the sanction was fair under the circumstances and whether
the sanction comports with equitable considerations.
[FN56]. Watkins, 795 S.W.2d at 261. As seen above, the prefatory paragraph of
Rule 215-2b states that the court may impose any
or all of the eight enumerated sanctions, “among others.” It is not clear
exactly why the court of appeals disallowed what they thought to be an
unenumerated sanction. The court appears to have been concerned with the fact
that no notice or hearing was given. Presumably, the need for notice and a
hearing is far greater than usual where a litigant cannot identify beforehand
the range of available sanctions that might be imposed, as would be the result
when an unenumerated sanction is imposed without notice and a hearing. When
Watkins was decided by the trial court in 1989, Texas Rule 13 did not require
notice and a hearing. Now that the rule itself requires notice and a hearing,
one could argue that even an unenumerated sanction is available to a trial
court under Texas Rule 13.
[FN57]. 816 S.W.2d 131 (Tex. App.-Houston [1st
Dist.] 1991, orig. proceeding).
[FN58]. Id. at 133. In Kahn, the appeals court conditionally
granted the writ of mandamus, holding that (1) the sanction imposed,
prohibiting the filing of any future motions, was per se an unjust sanction and
(2) the sanctions order did not describe the sanctionable conduct with
particularity and state why the conduct was sanctionable. Id. at 133-34.
[FN60].
Id. (emphasis added). A third protection, the 90-day grace period during which
offending instruments could be withdrawn and thereby moot the sanctions
process, was eliminated as of September 1, 1990. TEX. R. CIV. P. 13 cmt. (Vernon Supp.1991).
[FN61].
Note, however, that federal authority holds that notice and a hearing are
sometimes required prior to the imposition of sanctions as a matter of
procedural due process. See Donaldson v. Clark, 819 F.2d 1551, 1557
(11th Cir.1987)
(en banc). Under Donaldson, the amount of process that is “due” varies
considerably depending upon the circumstances. Id.
[FN62]. 768 S.W.2d 356 (Tex. App.-Texarkana 1989,
writ denied),
cert. denied, 493 U.S. 1021 (1990).
[FN64].
Id.
[FN65]. 793 S.W.2d 74, 75-76 (Tex. App.-Houston
[14th Dist.] 1990, no writ).
[FN67].
The Texas Supreme Court recently had the opportunity to decide this question,
but expressly declined to address it. See Transamerican Natural Gas Corp. v. Powell,
811 S.W.2d 913, 917 n.5 (Tex. 1991).
[FN68].
E.g., McGuire v. Post Oak Lane Townhome Owners
Ass'n, 794 S.W.2d 66, 68 (Tex. App.-Houston [1st Dist.] 1990, writ denied); Cloughly v. NBC Bank-Seguin, N.A., 773
S.W.2d 652, 656 (Tex. App.-San Antonio 1989, writ denied); Powers v. Palacios, 771 S.W.2d 716, 717-18
(Tex. App.-Corpus Christi 1989, writ denied).
[FN70]. 799 S.W.2d 439 (Tex. App.-El Paso 1990, no
writ).
[FN73]. 771 S.W.2d 716 (Tex. App.-Corpus Christi
1989, writ denied).
[FN76].
Id.
[FN77].
The converse of this case is Texas Attorney Gen.'s Office v. Adams, 793
S.W.2d 771, 775 (Tex. App.-Fort Worth, 1990), writ granted, 806 S.W.2d 347 (Tex. 1991), where a written sanctions order was
entered, but the court of appeals reversed, holding that the “good cause” found
was not good cause for imposing sanctions at all.
[FN78]. 794 S.W.2d 66 (Tex. App.-Houston [1st
Dist.] 1990, writ denied).
[FN80].
Id.
[FN81].
Id. at 68 n.1; see also Home Owners Funding Corp. of Am. v.
Scheppler, 815 S.W.2d 884 (Tex. App.-Corpus Christi 1991, no writ) (upholding denial of sanctions because,
inter alia, no request for findings of fact and conclusions of law were made,
nor were such findings and conclusions filed).
[FN82]. TEX. R. CIV. P. 13 (emphasis added).
[FN83].
Ex parte Brister, 801 S.W.2d 833, 834-35 (Tex. 1990).
[FN84]. TEX. R. CIV. P. 13, 215-2b(6).
[FN85]. Transamerican Natural Gas Corp. v. Powell,
811 S.W.2d 913, 919 n.9 (Tex. 1991).
[FN86].
See TEX. R. CIV. P. 215.
[FN87]. 773 S.W.2d 652 (Tex. App.-San Antonio 1989,
writ denied).
[FN88].
The trial court's order in Cloughly was:
After
considering the Motions, the response thereto, the pleadings and other papers
on file with the Court, the evidence presented, and the argument of counsel,
the Court finds and concludes that the Counter-Plaintiffs' Counterclaim and
Third-Party Action is groundless, is brought in bad faith, and is brought for
the purposes of harassment and to secure a delay of the trial in this cause.
The Court further finds that the Counter-Plaintiffs' Counterclaim and
Third-Party Action has no basis in fact; is not warranted by good faith
argument for the extension, modification or reversal of existing law; and that
good cause exists for the imposition of sanctions against Counter-Plaintiffs,
ERNEST CLOUGHLY and SPENCER-CLOUGHLY INVESTMENTS, INC., in that their conduct
in filing the Counterclaim and Third-Party Action has unnecessarily confused the
issues in this cause, has impeded the trial in this cause unnecessarily, and
has caused all parties to unnecessarily incur substantial additional expense.
The Court also finds that the Counterclaim and Third-Party Action are frivolous
in nature and offensive in character. Finally, the Court finds that
Counter-Plaintiffs' Counterclaim and Third-Party Action contain only a basic
rehash or restatement of matters ruled on by this Court in at least two or more
hearings prior to May 31, 1988. The parties and their attorney urging these
matters performed no discovery after the first hearing on such issues.
Id. at 656
(emphasis in original).
[FN89].
See supra notes 43-45 and accompanying text.
[FN90]. 816 S.W.2d 131, 133 (Tex. App.-Houston [1st
Dist.] 1991, orig. proceeding).
[FN91].
Id. (citation omitted).
[FN92].
E.g., D.A. Buckner Constr., Inc. v. Hobson, 793
S.W.2d 74 (Tex. App.-Houston [14th Dist.] 1990, no writ).
[FN93].
E.g., Wilson v. Downey, No. 01-88-01081-CV, 1988 Tex. App. LEXIS 3196 (Tex.
App.-Houston [1st Dist.] Dec. 20, 1988, orig. proceeding).
[FN94].
E.g., Hamilton v. Robertson, 778 S.W.2d 474 (Tex.
App.-Houston [1st Dist.] 1988, orig. proceeding). In Hamilton, the motion for leave to
file the writ was overruled but the merits of the petition were reached. There
was no discussion of the appropriateness of mandamus as a remedy for an
improper Rule 13 sanction.
[FN95]. 811 S.W.2d 922 (Tex. 1991).
[FN98]. Transamerican Natural Gas Corp. v. Powell,
811 S.W.2d 913, 919 (citing Braden).
[FN99]. Braden, 811 S.W.2d at 929.
[FN100].
Id.
[FN101].
Id.
[FN102].
Id.
[FN103]. McGuire v. Post Oak Lane Townhome Owners
Ass'n, 794 S.W.2d 66, 68 n.1 (Tex. App.-Houston [1st Dist.] 1990, writ denied).
[FN104]. Cooter & Gell v. Hartmarx Corp., 110
S.Ct. 2447, 2461 (1990); Home Owners Funding Corp. of Am. v.
Scheppler, 815 S.W.2d 884, 889 (Tex. App.-Corpus Christi 1991, no writ).
[FN105]. 795 S.W.2d 257 (Tex. App.-Houston [14th
Dist.] 1990, writ denied).
[FN106].
Id.
[FN107].
Id. at 261.
[FN108].
Id.
[FN109].
Id. The Texas Supreme Court has taken a more liberal position on this type of
joinder problem in the mandamus context, but has specifically declined to rule
on the precise Watkins problem. See Braden v. Downey, 811 S.W.2d 922, 928 n.6
(Tex. 1991).
[FN110]. Powers v. Palacios, 771 S.W.2d 716, 718
(Tex. App.-Corpus Christi 1989, writ denied).
[FN111].
See, e.g., Cooter & Gell v. Hartmarx Corp., 110
S.Ct. 2447, 2455 (1990).
[FN112]. Foval v. First Nat'l Bank of Commerce, 841
F.2d 126, 130 (5th Cir.1988) (applying Federal Rule 11 to pleadings originally filed in state court
and subsequently removed to federal court, but not reaching the question of the
applicability of Texas Rule 13).
[FN113].
Id.
[FN114].
See supra notes 15-16 and accompanying text.
[FN115]. 778 S.W.2d 916 (Tex. App.-Houston [14th
Dist.] 1989, orig. proceeding).
[FN117].
See supra notes 31-32 and accompanying text.
11 Rev.
Litig. 59
END OF
DOCUMENT