Milton Stanford Mosk III v. Cheryl Warren Thomas f/k/a Cheryl Warren Mosk--Appeal from 400th District Court of Fort Bend County

Affirmed and Majority and Concurring Opinions filed December 4, 2003

Affirmedand Majority and Concurring Opinions filed December 4, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-01130-CV

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MILTON STANFORD MOSK, III, Appellant

V.

CHERYL WARREN THOMAS F/K/A CHERYL WARREN MOSK, Appellee

On Appeal from the 400th District Court

Fort Bend County  Texas

Trial Court Cause No. 114,652

C O N C U R R I N G O P I N I O N

I fully agree with and join in the majority opinion. I write separately only to address two issues.

First, appellant has argued that we should apply the whole panoply of sanctions case lawCmost notably TransAmericanCto this case. See, e.g., TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex. 1991); Spohn Hosp. v. Mayer, 104 S.W.3d 878 (Tex. 2003); Braden v. Downey, 811 S.W.2d 922 (Tex. 1991). Based on this case law, he claims the trial court had to hold a hearing to develop his reasons for filing suit and the intentions of appellant and his lawyer. His argument continues that, without an evidentiary hearing on this issueChis reasons for filing suit and his and his lawyer=s intentionsCthe court cannot determine if it is fair to order appellant to pay the attorney=s fees of his opposing counsel. This is wrong for several reasons.

To begin with, section 17.50(c) of the Deceptive Trade Practices Act is different from Rule 13 and the discovery sanctions rule, Rule 215.2(b). Compare Tex. Bus. & Com. Code ' 17.50(c), with Tex. R. Civ. P. 13, 215.2(b). Section 17.50(c) authorizes imposition of attorneys= fees simply on a showing that the suit is groundless in law. Tex. Bus. & Com. Code ' 17.50(c). Unlike the other sanction settings, there need not also be a showing of bad faith; groundlessness in law alone is enough. See id.

Also, whether a suit is groundless in law is a legal question, not a fact question. See Donwerth v. Preston II Chrysler-Dodge, Inc., 775 S.W.2d 634, 637 (Tex. 1989); Riddick v. Quail Harbor Condominiums Ass=n, Inc., 7 S.W.3d 663, 677B78 (Tex. App.CHouston [14th Dist.] 1999, no pet.). As long as the trial court knows the factual bases for the suit, which for most part should be in the petition, it need not hold a factual hearing to determine why the lawyer included a particular legal claim. That question simply does not bear on whether the suit is based on a valid or arguably valid legal theory. So, certainly in the case of a novel theory of law, the court would need to hear argument from counsel, but it would not need to hold a factual hearing. Appellant=s claim that he was entitled to a factual hearing is incorrect.[1]

Second, I want to address appellant=s claim that the court should have ordered appellant=s attorney, not appellant, to pay opposing counsel=s fees; after all, the attorney, not appellant, drafted the pleadings. Once again, section 17.50(c) is written differently than the various rules imposing sanctions discussed. Section 17.50(c) does not state that the attorneys= fees can be imposed against either the party or the lawyer. See Tex. Bus. & Com. Code ' 17.50(c). But other statutes and rules allowing costs and fees to be imposed against lawyers clearly do. One part of Rule 13 refers to Aattorneys or parties@; another part provides, AIf a pleading, motion, or other paper is signed in violation of this rule, the court after notice and hearing . . . shall impose an appropriate sanction upon the person who signed it, a represented party, or both.@ Tex. R. Civ. P. 13. Likewise, section 10.004(a) of the Civil Practice and Remedies Code, which appellant also cites, refers to both the party and the lawyer: AA court that determines that a person has signed a pleading or motion in violation of Section 10.001 may impose a sanction on the person, a party represented by the person, or both.@ Tex. Civ. Prac. & Rem. Code ' 10.004(a). And, in the same manner, Rule 215.2(b) refers to both the party and the lawyer. Tex. R. Civ. P. 215.2(b)(2)(8). Section 17.50(c) does not refer to a Aperson or party@ or Aboth,@ as these other sanctions provisions do. It says the following:

On a finding by the court that an action under this section was groundless in fact or law . . . , the court shall award to the defendant reasonable and necessary attorneys= fees and court costs.

Tex. Bus. & Com. Code ' 17.50(c).

The clear language of Rules 13 and 215.2(b) and section 10.004 is missing from section 17.50(c). For these reasons, TransAmerican and its progeny do not control this case and the court was not free under section 17.50(c) to impose sanctions against the attorney.[2]

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Majority and Concurring Opinions filed December 4, 2003.

Panel consists of Justices Yates, Hudson, and Fowler.

[1] A factual hearing probably would have been necessary if the court had found that the suit was groundless in fact or brought in bad faith or for the purpose of harassment. Here, though, the court found that the suit was groundless in law, and he had before him documents which clearly showed how appellant acquired the property; he did not need to have a factual hearing.

[2] Part of appellant=s argument in this point is that the trial court had the authority to impose sanctions against the lawyer pursuant to section 10.004 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code ' 10.004(a) (providing court may impose sanctions on the party, the lawyer, or both). The trial court had the authority to enter these sanctions on its own initiative, see id. ' 10.002(b), but the record reveals no evidence that the court did so. Further, the trial court did not issue an order directing appellant to explain his conduct, which the court would have been required to do when entering sanctions on its own initiative. See id.