Review of Litigation

Winter, 1991

 

*59 CERTIFIED PLEADINGS: INTERPRETING TEXAS RULE 13 IN LIGHT OF FEDERAL RULE 11

 

Alan B. Rich[FNa1]

 

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).

 

[FN4]. TEX. R. CIV. P. 13.

 

[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.

 

[FN10]. TEX. R. CIV. P. 13.

 

[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).

 

[FN12]. TEX. R. CIV. P. 13.

 

[FN13]. FED. R. CIV. P. 11.

 

[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.

 

[FN24]. FED. R. CIV. P. 11.

 

[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.

 

[FN33]. 111 S.Ct. 922 (1991).

 

[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.

 

[FN41]. TEX. R. CIV. P. 13.

 

[FN42]. Koslow's v. Mackie, 796 S.W.2d 700, 703-04 n.1 (Tex. 1990).

 

[FN43]. 811 S.W.2d 913 (Tex. 1991).

 

[FN44]. Id. at 917.

 

[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.

 

[FN59]. TEX. R. CIV. P. 13.

 

[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).

 

[FN63]. Id. at 358-59.

 

[FN64]. Id.

 

[FN65]. 793 S.W.2d 74, 75-76 (Tex. App.-Houston [14th Dist.] 1990, no writ).

 

[FN66]. Id. at 76.

 

[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).

 

[FN69]. TEX. R. CIV. P. 13.

 

[FN70]. 799 S.W.2d 439 (Tex. App.-El Paso 1990, no writ).

 

[FN71]. Id. at 440.

 

[FN72]. Id. at 441.

 

[FN73]. 771 S.W.2d 716 (Tex. App.-Corpus Christi 1989, writ denied).

 

[FN74]. Id. at 717-18.

 

[FN75]. Id. at 719.

 

[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).

 

[FN79]. Id. at 68.

 

[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).

 

[FN96]. Id. at 929.

 

[FN97]. Id. at 930.

 

[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).

 

[FN116]. Id. at 917.

 

[FN117]. See supra notes 31-32 and accompanying text.

 

11 Rev. Litig. 59

 

END OF DOCUMENT