in the Matter of the Marriage of Jean Alvin Davis and Glora Helm

Opinion issued May 23, 2002

In The

Court of Appeals

For The

First District of Texas

NO. 01-01-00110-CV

____________

JEAN ALVIN DAVIS AND JIMMY PHILLIPS, JR., Appellants

V.

GLORIA B. HELM, Appellee

On Appeal from the 246th District Court

Harris County, Texas

Trial Court Cause No. 2000-48243

O P I N I O N

Appellants, Jean Alvin Davis and Jimmy Phillips, Jr., appeal from the trial

court's rendition of summary judgment and imposition of sanctions in favor of

appellee, Gloria B. Helm. Davis, represented by his attorney, Phillips, filed a bill of

review seeking to reverse the trial court's prior decree annulling Davis's marriage to

Helm. The trial court granted summary judgment in favor of Helm, found Davis and

Phillips had filed the bill of review in bad faith, and imposed sanctions on Davis and

Phillips, jointly and severally, in the amount of $20,000 for Helm's attorney's fees

and costs.

On appeal, two issues are presented: whether the trial court's rendition of

summary judgment on Helm's affirmative defenses of res judicata and collateral

estoppel was proper, and whether the trial court abused its discretion in imposing

sanctions on Davis and Phillips for filing the bill of review.

We affirm.

Factual and Procedural Background

In November of 1996, Helm sued for an annulment of her marriage to Davis

or in the alternative, divorce. On June 4, 1997, Helm and Davis entered into a rule

11 settlement agreement. Tex. R. Civ. P. 11. Pursuant to that agreement, Helm and

Davis agreed to an annulment of their marriage, a division of property, and that each

would be responsible for his or her own attorney's fees.

On June 30, 1997, Helm and Davis appeared with counsel at an oral hearing

before an associate judge. Helm testified she and Davis had been ceremonially

married in Reno, Nevada in 1993. She testified Davis had failed to tell her that he

had taken advantage of other wealthy women over the past 10 or 15 years and had

been indicted for criminal tax fraud. She also testified Davis misrepresented to her

that he was regularly employed and that, once married, he would consummate the

marriage sexually.

In response to questioning from his own attorney, Harry Tindall, Davis testified

that, although he signed the rule 11 agreement, he did so under duress placed upon

him by Tindall, and he no longer wanted to comply with the terms of the agreement.

At the conclusion of the hearing, the associate judge approved the rule 11

agreement and granted the annulment. On July 1, 1997, a final decree of annulment

was signed by visiting judge Mary Ellen Hicks. The decree recites that both sides

appeared, waived the making of a record, waived a jury, and presented evidence. The

decree also recites findings that "no community property was accumulated by the

parties during the existence of the marriage" and "the material allegations in the

Petitioner's Fifth Amended Original Petition for Annulment or Divorce are

substantially correct and have been proved by full and satisfactory evidence." The

trial court's decree also ordered the record sealed.

Davis subsequently retained new counsel, Phillips, and filed a motion for new

trial seeking to set aside the annulment. In his first amended motion for new trial,

Davis argued (1) the annulment decree incorrectly recited that the parties waived a

record, and he attached a complete copy of the reporter's record from the June 30,

1997 hearing before the associate judge as an exhibit to his motion; (2) the decree

failed to show the date in 1997 when it was heard; (3) there was no evidence and/or

insufficient evidence to support the finding that no community property was

accumulated by the parties; (4) there was no evidence and/or insufficient evidence to

support the annulment of the marriage; (5) the trial court failed to determine and

properly divide the community estate; (6) the trial court improperly sealed the record;

and (7) the rule 11 agreement was signed by Davis under duress, and he was not

allowed to fully present evidence on the issue.

The motion for new trial was presented at an oral hearing conducted by the

associate judge. At the hearing, Davis testified he had attended a mediation of his

annulment proceeding but no agreement was reached at mediation. Davis also

testified that, despite his desire to take the case to trial, his former attorney, Tindall,

refused to do so. Because of Davis's consultations with Tindall, Davis felt he had no

choice but to sign the rule 11 agreement. Davis testified he never signed the

annulment decree or gave Tindall permission to approve it. Davis further testified he

was never instructed by Tindall or any court personnel that he had a right to appeal

the associate judge's ruling. (1)

At the conclusion of the hearing, the associate judge

unsealed the trial court's file and denied the motion for new trial. Davis appealed the

associate judge's ruling to the trial court, but no hearing was scheduled on the motion

and it was overruled by operation of law.

Davis then appealed the annulment decree to this Court, which affirmed the

decree. See Davis v. Helm , No. 01-97-01026-CV, slip op. at 5, 1998 WL 394515

(Tex. App.--Houston [1st Dist.] July 16, 1998, pet. denied) (not designated for

publication). On that appeal, Davis raised five points of error alleging: (1) the

evidence was insufficient to support the granting of an annulment, (2) the trial court

erred in granting the property division based upon a rule 11 agreement that was

repudiated, (3) the evidence was insufficient to support the property division, (4) the

trial court erred in failing to notify him of his right to appeal the associate judge's

ruling, and (5) the trial court erred in failing to allow him three days to appeal the

findings of the associate judge. Id .

We held that, based on the recitation in the decree that the parties waived the

preparation of a record of any proceedings before the district judge, we were required

to presume the evidence was sufficient to support the annulment decree and the

property division, overruling Davis's first and third points of error. Id . at 3. We

overruled Davis's second point of error, regarding the entry of the annulment decree

based on the repudiated rule 11 agreement, because the decree recited that the

property division was based upon evidence received and did not reference an

agreement between the parties. Id . We overruled Davis's fourth point of error,

complaining of a lack of notice of his right to appeal the associate judge's rendition

of judgment, because the decree recited it was rendered by a district judge. Id .

Finally, we overruled Davis's fifth point of error, concerning the trial court's failure

to allow him three days to appeal the findings of the associate judge, because the

record did not indicate the associate judge made any findings and the decree recited

it was based on evidence presented to the district judge. Id . at 4. Davis's motion for

rehearing was denied, and the Texas Supreme Court subsequently denied Davis's

petition for review.

In September of 2000, Davis filed a petition for divorce and a bill of review

seeking to set aside the trial court's 1997 annulment decree. As grounds for his bill

of review, Davis alleged (1) the annulment decree was not signed by a qualified

judicial official, (2) the decree falsely recited that a hearing was held and evidence

was presented to a district judge, (3) he repudiated the rule 11 settlement agreement

at the hearing before the associate judge, and (4) he was given no notice of any July

1, 1997 (2) hearing before the trial court, and, in fact, no such hearing ever took place.

Helm filed a general denial to Davis's allegations, and, in her first amended

answer, raised the affirmative defenses of res judicata and collateral estoppel. Helm

also filed a motion to dismiss Davis's bill of review, alleging the suit was frivolous

and seeking sanctions against Davis and his attorney, Phillips. Helm subsequently

filed a motion for summary judgment based on res judicata and collateral estoppel,

and Davis filed a response to the motion. The trial court conducted a hearing on the

motion for summary judgment and the motion for sanctions. At the conclusion of the

hearing, the trial court granted summary judgment in favor of Helm, found Davis and

Phillips had filed the bill of review in bad faith, and imposed sanctions on Davis and

Phillips, jointly and severally, in the amount of $20,000 for Helm's attorney's fees

and costs. (3) Davis appeals the granting of the summary judgment and the sanctions.

Summary Judgment

In the first issue presented, Davis argues the trial court erred in granting

summary judgment because Helm did not establish all the elements of her affirmative

defenses, res judicata and collateral estoppel, as a matter of law.

A party moving for summary judgment has the burden of proving there is no

genuine issue of material fact and the movant is entitled to judgment as a matter of

law. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Property Mgmt., 690 S.W.2d 546, 548

(Tex. 1985); Farah v. Mafrige & Kormanik, 927 S.W.2d 663, 670 (Tex.

App.--Houston [1st Dist.] 1996, no writ). When deciding whether there is a disputed

material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. Nixon, 690 S.W.2d. at 548-49 . Every reasonable

inference must be indulged in favor of the non-movant and any doubts resolved in its

favor. Id. When a defendant moves for summary judgment on its own affirmative

defense, it must prove each element of its defense as a matter of law, leaving no

issues of material fact. Velsicol Chem. Corp. v. Winograd , 956 S.W.2d 529, 530

(Tex. 1997).

A summary judgment that is granted generally, without specifying a reason,

will be upheld if any ground alleged in the summary judgment motion can be

sustained. Carr v. Brasher , 776 S.W.2d 567, 569 (Tex. 1989); Mellon Serv. Co. v.

Touche Ross & Co. , 17 S.W.3d 432, 435 (Tex. App.--Houston [1st Dist.] 2000, no

pet.). Here, the trial court gave no specific basis for its rendition of summary

judgment.

Res Judicata and Collateral Estoppel

As noted above, Helm asserted the affirmative defenses of res judicata and

collateral estoppel as grounds for summary judgment on all of Davis's claims raised

in his bill of review.

Res judicata, or claim preclusion, prevents re-litigation of claims that have

been finally adjudicated, or that arise out of the same subject matter and could have

been litigated in the prior action. Barr v. Resolution Trust Corp. , 837 S.W.2d 627,

631 (Tex. 1992); Smith v. Brown , 51 S.W.3d 376, 379 (Tex. App.--Houston [1st

Dist.] 2001, pet. denied). The elements of res judicata are a prior, final judgment on

the merits by a court of competent jurisdiction; an identity of parties or those in

privity with them; and a second action based on the same claims that were raised or

could have been raised in the first action. Amstadt v. U. S. Brass Corp. , 919 S.W.2d

644, 652 (Tex. 1996); Smith , 51 S.W.3d at 379 .

Collateral estoppel, or issue preclusion, prevents a party from re-litigating a

particular fact issue the party has already litigated and lost in an earlier suit. Quinney

Elec., Inc. v. Kondos Entertainment, Inc. , 988 S.W.2d 212, 213 (Tex. 1999). The

doctrine of collateral estoppel is designed to promote judicial efficiency, protect

parties from multiple lawsuits, and prevent inconsistent judgments by precluding the

re-litigation of issues. Sysco Food Serv., Inc. v. Trapnell , 890 S.W.2d 796, 801 (Tex.

1994). A party seeking to assert the bar of collateral estoppel must establish that (1)

the facts sought to be litigated in the second action were fully and fairly litigated in

the first action, (2) those facts were essential to the judgment in the first action, and

(3) the parties were cast as adversaries in the first action. Id .

As the summary judgment movant, it was Helm's burden to conclusively prove

at least one of these affirmative defenses defeated the claims raised by Davis in his

bill of review. See Dardari v. Texas Commerce Bank Nat'l Ass'n , 961 S.W.2d 466,

470 (Tex. App.--Houston [1st Dist.] 1997, no pet.).

Bill of Review

A bill of review is an independent, equitable action brought by a party to a

former action seeking to set aside a judgment no longer appealable or subject to

motion for new trial. Caldwell v. Barnes , 975 S.W.2d 535, 537 (Tex. 1998);

Hernandez v. Koch Mach. Co. , 16 S.W.3d 48, 57 (Tex. App.--Houston [1st Dist.]

2000, pet. denied). Because it is an equitable remedy, the bill is available only when

a party has demonstrated due diligence and shown that, through no fault of its own,

no other legal remedy was available. Caldwell , 975 S.W.2d at 537-38 ; Hernandez ,

16 S.W.3d at 57 .

To succeed by bill of review, the petitioner must ordinarily allege and prove

three elements: (1) a meritorious claim or defense; (2) that he was prevented from

asserting by the fraud, accident, or wrongful act of his opponent or a court official in

the exercise of official duties; (3) unmixed with any fault or negligence of his own.

Caldwell , 975 S.W.2d at 537 ; Nichols v. Jack Eckerd Corp. , 908 S.W.2d 5, 8 (Tex.

App.--Houston [1st Dist.] 1995, no writ).

It was Helm's contention that, although presented as bill of review claims, all

of Davis's claims were barred by either res judicata, collateral estoppel, or both.

We note that, on appeal, Davis contends Helm's motion for summary judgment

did not adequately set out or elaborate the elements of res judicata and collateral

estoppel and was, therefore, a deficient pleading. (4) See McConnell v. Southside Indep.

Sch. Dist. , 858 S.W.2d 337, 341 (Tex. 1993) (holding motion for summary judgment

must expressly present grounds upon which it is based). However, in his response to

the motion, Davis made no objection to Helm's pleading and did not file a special

exception, thus waiving any complaint regarding Helm's pleading. Tex. R. App. P.

33.1; see Pettitte v. SCI Corp. , 893 S.W.2d 746, 748 (Tex. App.--Houston [1st Dist.]

1995, no writ). Rather, Davis only expressed a doubt about whether Helm's motion

was brought under rule 166a(c) as a "traditional" summary judgment motion or

166a(i) as a "no evidence" motion. Tex. R. Civ. P. 166a(c), (i). Helm moved for

summary judgment on affirmative defenses and was required to establish, as a matter

of law, all the elements of at least one of the defenses raised. See Dardari , 961

S.W.2d at 470 .

We treat Helm's motion as a 166a(c) motion and conclude that the motion,

although brief, was sufficient to provide Davis with "fair notice" of the grounds on

which Helm sought summary judgment. See Thomas v. Cisneros , 596 S.W.2d 313,

316 (Tex. App.--Austin 1980, writ ref'd n.r.e.) (holding grounds for summary

judgment sufficiently specific when consist of concise statement giving fair notice of

claim to non-movant).

Davis's Bill of Review Claims

As noted above, Davis alleged in his bill of review that (1) the 1997 annulment

decree was not signed by a qualified judicial official, (2) the decree falsely recited

that a hearing was held and evidence was presented to a district judge, (3) he had

repudiated the rule 11 settlement agreement at the hearing before the associate judge,

and (4) he was given no notice of any July 1, 1997 hearing before the trial court, and,

in fact, no such hearing ever took place.

With regard to Davis's claims, he presented no explanation why he could not

have raised each of these matters in his original suit in his motion for new trial and/or

on earlier appeal to this Court. The recitations contained in the annulment decree

were made known to all parties, through their counsel, when it was approved as to

form and submitted to the court. When the decree was signed and made a part of the

trial court's record, it was apparent on its face that it was signed by a judge other than

the elected judge of the 246th District Court. Davis contends Helm and her attorney

acted fraudulently by not disclosing that certain recitations in the decree were false.

However, Davis does not explain why he could not have presented such evidence

himself in the original proceeding and appeal. In fact, Davis's contention that he

repudiated the rule 11 settlement agreement was presented to the trial court in his

motion for new trial and presented to this Court as a point of error in his initial

appeal.

In Petro-Chemical Transp., Inc. v. Carroll , 514 S.W.2d 240 (Tex. 1974) , a bill

of review case, the Texas Supreme Court clearly mandated that:

No rule of law is better settled than the one that a court of equity will not

set aside a final judgment in a former action when the failure to have a

full and fair presentation of the case therein resulted from the

negligence, inadvertence or mistake either of the party seeking relief or

his counsel.

514 S.W.2d at 246 . This is still the law today.

We hold the summary judgment record established, as a matter of law, a prior,

final judgment on the merits by a court of competent jurisdiction; an identity of

parties or those in privity with them; and a second action based on the same claims

that were raised or could have been raised in the first action. Amstadt , 919 S.W.2d

at 652 ; Smith , 51 S.W.3d at 379 . Therefore, the trial court did not err in concluding

Davis's bill of review claims were barred by res judicata.

We overrule the first issue presented.

Motion for Sanctions

In the second issue presented, Davis and Phillips contend the trial court abused

its discretion in imposing sanctions on them for filing the bill of review. Davis and

Phillips do not contest the evidence supporting the amount of sanctions awarded,

rather, they argue their conduct in filing the bill of review did not warrant any

sanction by the trial court.

A trial court's decision to impose sanctions is reviewed for an abuse of

discretion. Dyson Desendant Corp. v. Sonat Exploration Co. , 861 S.W.2d 942, 950

(Tex. App.--Houston [1st Dist.] 1993, no writ). A trial court abuses its discretion

when it acts without reference to any guiding legal rules or principles or misapplies

the law to the established facts of the case. Id . We will overturn a trial court's

imposition of sanctions, therefore, only when it is based on an erroneous view of the

law or a clearly erroneous assessment of the evidence. Home Owners Funding Corp.

of Am. v. Scheppler , 815 S.W.2d 884, 889 (Tex. App.--Corpus Christi 1991, no writ);

see Cooter & Gell v. Hartmax Corp. , 496 U.S. 384, 405 , 110 S. Ct. 2447, 2461

(1990). In making our determination on this issue, we must indulge every legal

presumption in favor of the trial court's ruling and view the evidence in the light most

favorable to the trial court's ruling. Hatteberg v. Hatteberg , 993 S.W.2d 522, 526

(Tex. App.--Houston [1st Dist.] 1994, no writ). A mere error in judgment by the trial

court does not constitute an abuse of discretion. Bradt v. Sebek , 14 S.W.3d 756, 761

(Tex. App.--Houston [1st Dist.] 2000, pet. denied). Further, "[t]he mere fact that a

trial judge may decide a matter within his discretionary authority in a different

manner than an appellate judge in a similar circumstance does not demonstrate that

an abuse of discretion has occurred." Downer v. Aquamarine Operators, Inc. , 701

S.W.2d 238, 242 (Tex. 1985).

In her amended motion for sanctions, Helm argued Davis's suit was "totally

frivolous without any basis in law or fact" and sought sanctions under rule 13 of the

Texas Rules of Civil Procedure and chapter 10 of the Texas Civil Practice and

Remedies Code. See Tex. R. Civ. P. 13; Tex. Civ. Prac. & Rem. Code Ann. §

10.002 (Vernon Supp. 2002).

Rule 13 provides that the signature of attorneys or parties on a pleading or

motion constitutes a certificate by them that, to the best of their knowledge,

information, and belief formed after a reasonable inquiry, the instrument is not

groundless and brought for the purpose of harassment. Tex. R. Civ. P. 13 . No

sanction under this rule may be imposed without good cause stated in the court's

order. Id . For purposes of rule 13, "groundless" means "no basis in law or fact and

not warranted by good faith argument for the extension, modification, or reversal of

existing law." Id . Chapter 10 of the Civil Practice and Remedies Code codifies the

requirements of rule 13 and provides a trial court with the authority to sanction a

party and/or its attorney for a violation of the rule. Tex. Civ. Prac. & Rem. Code

Ann. §§ 10.001 and .004 (Vernon Supp. 2002).

At the hearing on Helm's motion for sanctions, Phillips testified that, based on

his legal research concerning bills of review and his review of the record and

previous claims presented by Davis, he concluded a bill of review could be brought

"after an appeal as long as the issues brought up under the [b]ill of [r]eview have not

been considered on the appeal." Helm's counsel argued that, based on the trial

court's file and the summary judgment record, the bill of review was frivolous "as a

matter of law." Helm's counsel testified Helm had incurred approximately $20,000

in attorney's fees and costs responding to Davis's bill of review. Davis did not

challenge this amount.

The trial court signed an order awarding sanctions against Davis and Phillips

pursuant to rule 13 of the Rules of Civil Procedure and sections 10.001(1) and (2) and

section 10.004(c)(3) of the Civil Practice and Remedies Code. Tex. R. Civ. P. 13 ;

Tex. Civ. Prac. & Rem. Code Ann. §§ 10.001 (1), .001(2), and .004(c)(3) (Vernon

Supp. 2002). In its order, the trial court concluded the bill of review was (1) filed in

bad faith, (2) for the purpose of harassment, and (3) not warranted by existing law or

by a nonfrivolous argument for the extension, modification, or reversal of existing

law or the establishment of new law. (5)

We agree.

A trial court should consider the entire history of the case before it when

making its determination to award sanctions on the grounds that a case is nakedly

frivolous or without legal viability. Falk & Mayfield L.L.P. v. Molzan , 974 S.W.2d

821, 824-27 (Tex. App.--Houston [14th Dist.] 1998, pet. denied). At the hearing on

Helm's motion for sanctions, the trial court stated it had reviewed the entire file in

this case. Davis and Phillips conceded at trial and concede on appeal that they do not

seek an extension, modification, or reversal of existing law in filing the bill or review.

Phillips testified at the sanctions hearing that he conducted legal research on the

viability of a bill of review and concluded it was supported by "ample authority," but

he did not cite the trial court to any authority supporting this contention; nor did he

file a response to Helm's motion for sanctions. In the response filed by Phillips to

Helm's motion for summary judgment, Phillips cited a single case pertaining to bills

of review, First Nat'l Bank of Fort Worth v. Kelley , 278 S.W.2d 350 (Tex. Civ.

App.--Eastland 1955, no writ). In that case, the court held a party who had

previously filed a direct appeal was also entitled to file a subsequent bill of review

seeking to set aside the judgment on the ground that its opponent had committed

extrinsic fraud. Id . at 351. Davis and Phillips present no evidence of extrinsic fraud

on the part of Helm, and we find no such evidence in the record before us; thus,

Kelley is clearly distinguishable.

Davis and Phillips contend that Phillips's bare testimony concerning his legal

research constituted evidence of a reasonable inquiry into the merits of the bill of

review and demonstrated good faith sufficient to defeat the motion for sanctions.

However, as indicated above, the claims presented in the bill of review were clearly

barred by res judicata. One of the claims in Davis's bill of review, concerning his

repudiation of the rule 11 settlement agreement, is exactly the same claim he

presented as a basis for motion for new trial in the original proceeding and as a point

of error in the first appeal to this Court.

Davis also contends he obtained deemed admissions against Helm which

supported his claims and demonstrated the bill of review was not groundless.

Although Helm did not respond to Davis's requests for admissions, she filed

objections to them as permitted by the rules of discovery. Tex. R. Civ. P. 198.2(b).

Davis did not request a hearing or obtain a ruling from the trial court on Helm's

objections. Tex. R. Civ. P. 193.4(a). Thus, the admissions were not deemed, and

Davis waived any complaint about them. Tex. R. App. P. 33.1.

Davis and Phillips also rely on a statement by the trial court at the beginning

of the hearing to support their contention that the court imposed sanctions based on

an erroneous view of the law. At the hearing, the trial court stated as follows:

Well, I guess I don't understand what a Bill of Review is, but generally

it's that you can get some relief because by reason of something that was

never brought to the attention of the person seeking the Bill of Review

that they never had notice of, the proceedings or some sort of fraud was

perpetrated on them that they didn't get a chance to present to the Court.

. . . .

I've got one or two in here, and I have one just, you know, where I was

sustained on a Bill of Review which seems to me that they had a whole

lot stronger case than you do. I don't understand, you know, how you

can go all the way through the appellate system and then come back

asking for a Bill of Review based on some kind of fraud or something

that you already tried all the issues. . . . I'll give you a chance to change

my mind.

Contrary to Davis's and Phillips's assertions, these statements by the trial court do not

demonstrate an erroneous view of either a petitioner's burden on a bill of review or

the elements of res judicata. See Caldwell , 975 S.W.2d at 537 ; Amstadt , 919 S.W.2d

at 652 . Davis's and Phillips's contention on this point is without merit.

Indulging every legal presumption in favor of the trial court's ruling and

viewing the evidence in the light most favorable to the trial court's ruling, we cannot

conclude the trial court abused its discretion in imposing sanctions on Davis and

Phillips in this case. While different judges might arrive at different conclusions

based on the same evidence, as noted above, the mere difference of opinion in the

exercise of discretionary authority does not amount to an abuse of discretion.

Downer , 701 S.W.2d at 242 .

We overrule the second issue presented.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists of Justices Mirabal, Hedges, and Jennings.

Do not publish. Tex. R. App. P. 47.

1.

Davis also attempted to testify concerning the specifics of the discussions he

had with Tindall following the mediation. Helm's attorney objected to the

testimony as hearsay, and the associate judge sustained the objection. Davis

then testified, in a bill of exception, that, after the mediation, he told Tindall

he wanted to take the case to trial. Three or four days before the trial setting,

Tindall told Davis he would not represent him in a trial of the case and told

Davis he would have to find another lawyer if he wanted to take the case to

trial. Davis testified he then attempted to hire another attorney, but, when he

was unsuccessful, signed the rule 11 agreement. No appeal of the associate

judge's ruling to exclude this testimony was ever sought.

2.

The final decree of annulment was signed by a visiting judge, the Honorable

Mary Ellen Hicks, on July 1, 1997.

3.

Davis did not contest that Helm incurred reasonable and necessary attorney's

fees in the amount of $20,000 in defense of the bill of review.

4.

In her motion for summary judgment, Helm's entire argument consists of a

single sentence: "The cause of action pled by Petitioner is barred by res

judicata and by collateral estoppel and, therefore, judgment in favor of

Respondent must be entered."

5.

When imposing Rule 13 sanctions, a trial court is required to make

particularized findings of good cause justifying the sanctions. Tex. R. Civ. P.

13 . Davis complains the trial court did not make sufficiently particularized

findings of fact in its order in this case. However, Davis did not object to the

trial court's entry of sanctions or file a motion for new trial . To preserve error

for appeal, a party must timely present his objection to the trial court with

sufficient specificity. Tex. R. App. P. 33.1(a). By failing to timely object to the

form of the sanctions order, Davis has waived any error.