Clifford Zeifman v. Sheryl Diane Michels, Karl E. Hays, and John Barrett

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-12-00114-CV

Clifford Zeifman, Appellant

v.

Sheryl Diane Michels, Karl E. Hays, and John Barrett, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT

NO. D-1-GN-06-002930, HONORABLE RHONDA HURLEY, JUDGE PRESIDING

MEMORANDUM OPINION

Clifford Zeifman appeals an order denying his motion for sanctions against

appellees Sheryl Diane Michels, Karl E. Hays, and John Barrett, and awarding each appellee

$10,000 for attorney’s fees incurred in defending against Zeifman’s motion. We will affirm the

district court’s judgment.

BACKGROUND

This appeal is the latest to arise from a series of legal battles involving Zeifman and

Michels that has spanned almost ten years, cost them hundreds of thousands of dollars of legal fees,

and generated no less than five previous opinions from this court.1 As remarkable as it seems now,

1

See Michels v. Zeifman, No. 03-08-00287-CV, 2009 Tex. App. LEXIS 1017

(Tex. App.—Austin Feb. 12, 2009, pet. denied) (mem. op.); Zeifman v. Michels, 229 S.W.3d 460

(Tex. App.—Austin 2007, pet. denied); In re Zeifman, No. 03-06-00601-CV, 2006 Tex. App. LEXIS

11340 (Tex. App.—Austin Nov. 22, 2006, orig. proceeding) (mem. op.); Zeifman v. Michels,

212 S.W.3d 582 (Tex. App.—Austin 2006, pet. denied); see also Zeifman v. Nowlin, 322 S.W.3d

804 (Tex. App.—Austin 2010, no pet.).

Zeifman and Michels once got along well enough to get married, as they did in 1992, and they

even had two children together: G.L., a son, born in 1994, and A.A., a daughter, born in 1997. But

Zeifman and Michels divorced in 1998, and G.L. and A.A. have since spent their formative years in

the shadow of “extensive and acrimonious litigation” between their parents that is ostensibly aimed

at advancing each parent’s perception of the children’s welfare. See Zeifman v. Michels, 229 S.W.3d

460, 461–62 (Tex. App.—Austin 2007, pet. denied).

The final divorce decree was based on an irrevocable mediated settlement agreement

filed with the district court and incorporated into the decree. See Tex. Fam. Code § 6.602. The

decree named both parents as joint managing conservators and, of relevance here, incorporated the

following negotiated agreement regarding their young children’s education:

The Court finds that the parties have agreed and IT IS THEREFORE ORDERED that

the children shall attend the University of Texas Lab School until such a time as the

children are of the age to attend elementary school. The Court finds that the parties

have agreed and IT IS THEREFORE ORDERED that, at that time, the children

shall attend the public school in the following order of priority for elementary school:

(1) Bryker Woods; or (2) Casis; provided, however, that if neither party lives in a

residential area eligible to attend either Bryker Woods or Casis, then the children

shall attend elementary school which the children are eligible to attend, at the highest

rated school, the highest rating being determined by the annual TAAS testing, using

the previous year’s rankings, or shall attend another elementary school to which

the parties agree in writing. The Court finds that the parties have agreed and IT IS

THEREFORE ORDERED that for middle school, the children shall attend the

middle school into which the children’s elementary school feeds. The Court finds

that the parties have agreed and IT IS THEREFORE ORDERED that for high school,

the children shall attend the high school into which the children’s middle school

feeds.

The decree anticipated that the parents might have disagreements regarding

educational decisions for their children that they could not resolve, and provided the following

mechanism in that event:

2

The Court finds that the parties have agreed and IT IS THEREFORE ORDERED that

if the parties cannot agree on educational decisions for a child, the parties shall

follow the recommendations of the person that is the child’s teacher at the time of the

decision.

Pursuant to the decree, A.A., the youngest child, spent her first-grade year at

Bryker Woods Elementary, which is a public school in the Austin Independent School District

(AISD). In April 2004, toward the end of that school year, Michels applied for her admission

to St. Andrew’s Episcopal School—a private school—for the next school year. She did not

notify Zeifman of the application until after A.A. had been placed on St. Andrew’s waiting list. In

June 2004, A.A. was accepted for admission. Zeifman objected to the change of schools and insisted

that the parties follow the decree. Pursuant to the decree, Michels consulted with A.A.’s first-grade

teacher at Bryker Woods, who advised Michels that she thought it would be best if A.A. stayed

at Bryker Woods.

On July 19, 2004, Michels filed a petition to modify the parent-child relationship.

After a hearing, the district court modified the decree to provide that Michels have the sole right to

make educational decisions for A.A. Zeifman appealed the district court’s decision to this Court.

On August 4, 2006, we reversed the district court’s modification order, concluding that there was

legally insufficient evidence to support the district court’s finding that the circumstances of the child

or of either conservator had materially and substantially changed so as to warrant the modification

of the decree. See Zeifman v. Michels, 212 S.W.3d 582, 596 (Tex. App.—Austin 2006, pet. denied).

We held that the district court abused its discretion in modifying the decree and rendered judgment

in favor of Zeifman.

3

On August 9, 2006, after we released our opinion, but before mandate issued,

Zeifman wrote Michels a letter indicating his understanding of our opinion to be that “the

joint custody and decision making agreed in the decree is fully restored and the school [A.A.]

attends is stipulated by the same court order.” Accordingly, Zeifman wrote that he had “informed

Brykerwoods of [A.A.]’s re-enrollment and completed the necessary paperwork.”

On the next day, one of Michels’s attorneys, appellee Karl Hays, sent a letter to

Zeifman’s attorney at the time, Jimmy Vaught, indicating Michels’s belief that this Court’s opinion

was “not effective or enforceable” until the mandate issued and that the May 25 order was still in

effect, leaving Zeifman without authority to re-enroll A.A. at Bryker Woods. To the extent Zeifman

contended that the parties were subject to the divorce decree’s terms, Hays gave notice that Michels

did not consent to A.A.’s enrollment at Bryker Woods. Hays also stated that if Zeifman insisted

that the divorce decree was in effect, they would need to arrange to obtain a recommendation from

her current teacher “as soon as possible in light of the impending start of the academic year.” Vaught

responded the same day expressing disagreement with Michels’s position and asserting that the

teacher recommendation made in 2004 that A.A. remain at Bryker Woods was still effective. Vaught

took the position that, “[b]y enrolling [A.A.] in Bryker Woods, Mr. Zeifman is adhering to the

recommendation” of her teacher “which Ms. Michels disregarded.”

On the same day, Hays sent a letter to the principal of Bryker Woods requesting that

the school deny A.A.’s re-enrollment based on the district court’s May 25, 2005 order granting

Michels the exclusive right to make educational decisions for A.A. (the order that this Court

had reversed several days before). The letter enclosed a copy of the May 25 order as well as a copy

of the “Travis County Standing Order Regarding Children, Property and Conduct of the Parties,”

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which provides that children of parties to a pending family law case must not be withdrawn

from the school where they are enrolled without the consent of both parents. Hays stated that he was

providing the school with these orders because it was his understanding that Zeifman was

“attempting to register [A.A.] at Bryker Woods,” but Zeifman “has no authority” to do so and

Michels “objects to any effort” by Zeifman to enroll A.A. at Bryker Woods. Hays did not mention

this Court’s opinion reversing the May 25 order.

On August 14, 2006, the day before the Bryker Woods’s school year began, Michels

sued AISD seeking injunctive relief to prevent the district from permitting A.A. to be enrolled

at Bryker Woods or any other AISD school as the 2006 school year began. Michels alleged that

permitting such enrollment would (1) violate Michels’s exclusive parental rights (at least until the

mandate issued) to make educational decisions on behalf of A.A. and (2) “actively assist [] . . . and

aid[] and abet[] Clifford Zeifman in the violation of a valid court order,” the Travis County standing

order it had previously provided to Bryker Wood’s principal.2 Michels did not name Zeifman as a

party to this action, nor did she provide notice to him or his attorney on the day the action was filed.

2

This standing order, applicable to “every divorce suit and every suit affecting the

parent-child relationship filed in Travis County” after January 1, 2005, prohibits parties, “while the

lawsuit is pending before the court,” from actions including “[d]isrupting or withdrawing

the children from the school or day-care facility where the children are presently enrolled, without

the written agreement of both parents or an order of this Court.” See Travis Co. Standing Order

Regarding Children, Property and Conduct of the Parties (Travis Co. Dist. Clerk’s File No. 121,012

(Local Rules and Orders)) (effective Jan. 1, 2005). Although the parties’ 1997 divorce decree

predated the standing order, Michels alleged that Zeifman had made himself subject to the order by

filing a cross-petition in a second modification proceeding she had initiated in 2005 concerning their

other child.

5

On August 14, Michels obtained an ex parte temporary restraining order against

AISD.3 Four days later, on August 18, Zeifman filed a petition in intervention, motion to dismiss,

and motion for sanctions. Zeifman pleaded that he had a justiciable interest in Michels’s new lawsuit

as A.A.’s father and co-managing conservator, and as respondent and counter-petitioner in the

ongoing litigation. Zeifman moved to dismiss Michels’s suit as an improper attempt to circumvent

the district court’s jurisdiction over the divorce decree and this Court’s jurisdiction over “the issue

of [A.A.’s] education.”

Zeifman also sought sanctions under rule 13 of the Texas Rules of Civil Procedure,

chapters 9 and 10 of the Civil Practice and Remedies Code, and the district court’s inherent power.

He complained chiefly that Michels had filed a “frivolous and groundless” separate suit against

AISD, rather than seeking relief in the divorce and custody case, to circumvent the jurisdiction of

the district court and this Court, and in a manner deliberately calculated to avoid his knowledge or

participation for a short, but critical, period of time.

A hearing on Zeifman’s intervention, motion to dismiss, and motion for sanctions

was set on the third business day thereafter, Wednesday, August 23. On Monday, August 21,

Michels filed a rule 11 agreement with AISD, dated August 18, whereby AISD agreed not to permit

A.A. to be enrolled at or attend Bryker Woods “until such time as [AISD] is presented with a final,

non-appealable order expressly authorizing such enrollment and attendance,” in return for Michels’s

3

The temporary restraining order restrained AISD from:

1. Permitting [A.A.] to be enrolled at Bryker Woods Elementary School.

2. Permitting [A.A.] to attend classes at Bryker Woods Elementary School.

3. Taking any action which would facilitate or permit [A.A.’s] attendance at

Bryker Woods Elementary School.

6

agreement to dismiss her pending suit. Michels filed a notice of non-suit on August 22 and, on the

day of the hearing, filed a motion to strike Zeifman’s intervention. After a hearing in which only

argument was presented, the district court signed an “Order Confirming Nonsuit” and, by separate

order, granted Michels’s motion to strike Zeifman’s intervention, dismissed as moot his motion to

dismiss, and denied his motion for sanctions.

Zeifman appealed that order to this Court. See Zeifman, 229 S.W.3d at 468. In a

ruling handed down during the summer of 2007, we concluded that the district court abused

its discretion in striking his intervention. Id. Additionally, because this erroneous ruling had been

a predicate for the district court’s ruling on Zeifman’s sanctions motion, we remanded the sanctions

motion for further proceedings and instructed the district court to “carefully consider the facts

known by Michels at the time she filed suit against AISD when determining whether sanctions

are appropriate.” Id. However, it would be several years before Zeifman would return to his pending

sanction motion.

On August 21, 2006, around the same time Michels’s injunction action was being

litigated in the district court, Zeifman had filed in the remanded modification suit a “Motion to

Implement Third Court of Appeals Judgment and Opinion Concerning Educational Decisions

for A.A.,” requesting that our opinion in that case “be immediately implemented and that

[he] be authorized to re-enroll [A.A.] at Bryker Woods Elementary School . . . .” The district court

set aside the modification order, but otherwise denied Zeifman’s requested relief, effectively

returning the parties to the terms of the original divorce decree. Wanting more, Zeifman then

filed a petition for writ of mandamus in this Court. We denied Zeifman’s petition, explaining that

our order vacating the prior modification order left “the parties to resolve any disputes concerning

7

A.A.’s education according to their agreed-upon mechanisms in their original divorce decree.” In re

Zeifman, No. 03-06-00601-CV, 2006 Tex. App. LEXIS 11340, at *2 (Tex. App.—Austin Nov. 22,

2006, orig. proceeding) (mem. op.).

Shortly before we handed down our opinion in the injunction action, on June 8, 2007,

Zeifman and Michels signed agreed temporary orders in the modification suit providing that

A.A. “shall continue to be enrolled in and attend exclusively St. Andrew’s . . . , until and through

the time final trial of this case has been concluded.” The parties further stipulated “that regardless

of any ruling” in Zeifman’s appeal of the order striking his intervention in the AISD injunction suit,

A.A. “shall continue to be enrolled in and attend exclusively St. Andrew’s . . . during the pendency

of this suit . . . .”

Zeifman then filed a separate lawsuit against Michels, Hays, and two other lawyers

who had represented Michels in the litigation against him, Becky Beaver and appellee John Barrett,

seeking damages based on their involvement in the injunction action. On the defendants’ motions,

the district court granted summary judgment against all of Zeifman’s claims. Zeifman appealed that

order to this Court, and we affirmed. See Michels v. Zeifman, No. 03-08-00287-CV, 2009 Tex. App.

LEXIS 1017, at *2 (Tex. App.—Austin Feb. 12, 2009, pet. denied) (mem. op.). Zeifman also filed

grievances against the attorneys with the State Bar of Texas, which were summarily dismissed. He

also filed suit against an amicus attorney, alleging “fraud” and “gross negligence” in connection with

her representation of his other child in the divorce proceedings. The district court granted summary

judgment against Zeifman and sanctioned him for filing a frivolous lawsuit. Zeifman appealed

this order as well, and we once again affirmed. See Zeifman v. Nowlin, 322 S.W.3d 804, 812

(Tex. App.—Austin 2010, no pet.).

8

On September 1, 2010, more than three years after this Court’s opinion remanding

his sanction claims in the injunction suit, Zeifman pursued those claims again. An evidentiary

hearing was held. Eventually, the district court signed an order denying Zeifman’s sanctions motion

and instead awarding $10,000 each to Hays, Barrett, and Michels for their attorney’s fees incurred

in defending the motion. Zeifman appealed that order.

ANALYSIS

In two issues, Zeifman asserts that the district court abused its discretion in denying

his motion for sanctions, urging that he was entitled to sanctions under, respectively, Rule of

Civil Procedure 13 and chapter 10 of the Civil Practice and Remedies Code. See Tex. R. Civ. P. 13,

215; Tex. Civ. Prac. & Rem. Code §§ 10.001–.005. In a third issue, he argues that the district court

abused its discretion in awarding the appellees attorney’s fees against him. The appellees all counter

that the district court acted within its discretion in denying Zeifman’s motion and awarding them

attorney’s fees. Barrett and Hays also contend that Zeifman lacked standing to assert his motion for

sanctions. Finally, in a cross-point, Hays requests that we impose attorney’s fees against Zeifman

for filing a frivolous appeal.

Standing

Before we reach the merits, we consider the contention of Barrett and Hays

that Zeifman lacked standing to seek sanctions against them. Standing is a component of subject-

matter jurisdiction, and is reviewed de novo. Ford Motor Co. v. Butnaru, 157 S.W.3d 142, 147

(Tex. App.—Austin 2005, no pet.). In response to Zeifman’s motion for sanctions, Barrett and Hays

have each interposed pleas to the jurisdiction asserting that Zeifman had not been a party to

9

the injunction lawsuit and that AISD has been the sole defendant when the pleadings that form

the basis of his sanctions motion were filed and the TRO was obtained. Because rule 13 of the

Rules of Civil Procedure and chapter 10 of the Civil Practice and Remedies Code concern

appropriate punishment for “parties” that file lawsuits without merit, see Tex. R. Civ. P. 13, 215;

Tex. Civ. Prac. & Rem. Code § 10.001, Barrett and Hays argue that only the party against whom suit

is brought may seek sanctions. They further maintain that no Texas court has recognized the right

of a third-party to intervene in a case and seek sanctions for pleadings that were not filed against the

intervenor and conduct that occurred prior to the intervenor’s appearance. Hays likens Zeifman’s

efforts to obtain sanctions to intervening in a suit and thereafter asserting a claim for malicious

prosecution.4

Zeifman responds that a claim for malicious prosecution requires proof of “the

institution or continuation of civil proceedings against the plaintiff,” while rule 13 and chapter 10

sanctions do not contain similar, specific requirements entitling only particular parties to relief. See

Tex. R. Civ. P. 13 (“If a pleading, motion or other paper is signed in violation of this rule, the court,

upon motion or upon its own initiative, after notice and hearing, shall impose an appropriate

sanction.”), 215; Tex. Civ. Prac. & Rem. Code § 10.002 (“A party may make a motion for sanctions,

describing the specific conduct violating Section 10.001.”); see also Texas Beef Cattle Co. v. Green,

921 S.W.2d 203, 207 (Tex. 1996) (stating elements of malicious prosecution). Zeifman notes that

this Court already determined that he “had a justiciable interest, was a proper party to the suit,” and

therefore, could seek sanctions. See Zeifman, 229 S.W.3d at 468 (“Zeifman, as we have determined,

4

In fact, Zeifman did assert a claim of malicious prosecution against Hays, Barrett, and

Michels in separate proceedings. See Michels, 2009 Tex. App. LEXIS 1017, at *15–19 (holding that

Zeifman failed to establish first element of malicious prosecution claim).

10

was a proper party. Michels’s non-suit thus could not defeat or render moot his claims for sanctions

and for attorney’s fees . . . .”). Because we have previously ruled that Zeifman was a proper party

to the suit, and because nothing in the language of rule 13 or chapter 10 indicates that intervenors

may not seek relief under those provisions, we conclude that Zeifman had standing to pursue his

motion for sanctions. See id.

Standard of review

We review a trial court’s award or denial of sanctions for an abuse of discretion. Low

v. Henry, 221 S.W.3d 609, 614 (Tex. 2007). In matters committed to a district court’s discretion,

the test is whether the ruling was unreasonable or arbitrary or whether the court acted without

reference to any guiding rules or principles. Lake Travis Indep. Sch. Dist. v. Lovelace, 243 S.W.3d

244, 249 (Tex. App.—Austin 2007, no pet.). In deciding whether the denial of sanctions constitutes

an abuse of discretion, we examine the entire record, including the findings of fact and conclusions

of law, if any were made, reviewing the conflicting evidence in the light most favorable to

the trial court’s ruling and drawing all reasonable inferences in favor of the court’s judgment. Id.

at 249–50 (citing In re C.Z.B., 151 S.W.3d 627, 636 (Tex. App.—San Antonio 2004, no pet.)). The

party seeking sanctions has the burden of showing his right to relief. GTE Commc’n Sys. Corp.

v. Tanner, 856 S.W.2d 725, 729 (Tex. 1993).

Sanctions under rule 13

Zeifman sought sanctions against Hays and Barrett under rule 13 for filing suit for

injunctive relief against AISD and for doing so without providing notice to Zeifman. Under rule 13,

“[t]he signatures of attorneys or parties constitute a certificate by them that they have read the

11

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.” Tex. R. Civ. P. 13. “If a pleading, motion or other

paper is signed in violation of this rule, the court, upon motion or upon its own initiative, after notice

and hearing, shall impose an appropriate sanction available under Rule 215-2b, upon the person who

signed it, a represented party, or both.” Id. Under rule 13, courts may “impose sanctions against

parties filing frivolous claims to deter similar conduct in the future and to compensate the aggrieved

party by reimbursing the costs incurred in responding to baseless pleadings.” Lovelace, 243 S.W.3d

at 254 (citing Scott & White Mem’l Hosp. v. Schexnider, 940 S.W.2d 594, 596–97 (Tex. 1996)

(per curiam)).

Groundlessness

In order to establish that Michels’s lawsuit against AISD was “groundless,” Zeifman

had the burden of showing that the suit had “no basis in law or fact and [was] not warranted

by good faith argument for the extension, modification, or reversal of existing law.” Tex. R. Civ.

P. 13; see Lovelace, 243 S.W.3d at 254. To determine if a pleading was groundless, the trial court

must objectively ask whether the party and counsel made a reasonable inquiry into the legal and

factual basis of the claim at the time the suit was filed. See Loeffler v. Lytle Indep. Sch. Dist.,

211 S.W.3d 331, 348 (Tex. App.—San Antonio 2006, pet. denied). Groundlessness is thus more

than an ultimate determination that the claim is not a winner. See Emmons v. Purser, 973 S.W.2d

696, 700 (Tex. App.—Austin 1998, no pet.).

Zeifman has argued that Michels’s suit against AISD was groundless because this

Court had already issued an opinion reversing the district court’s modification order giving Michels

12

sole control over educational decisions. Our opinion, Zeifman asserts, reinstated the original divorce

decree and terminated the effect of the Travis County standing order relied upon by Michels in

seeking the injunction.5 Zeifman contends that Michels’s sole purpose in suing AISD for injunctive

relief was to “evade the unfavorable judgment handed down by the Third Court of Appeals.”

Appellees respond that, at the time of filing, Michels’s attorneys believed, based on

their research of then-existing case law, that an appellate court judgment was not effective or

enforceable until the appellate process concludes and mandate has issued, thus leaving them

a window of time in which they could advance Michels’s interests under the modified decree. See

Edwards Aquifer Auth. v. Chemical Lime Ltd., 212 S.W.3d 683, 695–96 (Tex. App.—Austin 2006),

rev’d, 291 S.W.3d 392 (Tex. 2009) (“An appellate court judgment is not enforceable in the

lower court before mandate issues.” (citing In re Long, 984 S.W.2d 623, 625–26 (Tex. 1999)

(per curiam))). Hays described his research and conclusions on this issue during the hearing. We

are compelled to agree that, especially given the state of the case law existing at the time, this

position regarding the effect of our opinion and judgment was not objectively unsupported in law

or fact or a good-faith argument for such an application or extension of then-existing law.

In contending otherwise, Zeifman claims that “Hays agreed that even if the mandate

had not issued, the appellate court’s decision reinstated the original order.” However, Zeifman

overlooks or mischaracterizes Hays’s testimony from the sanctions hearing, which included the

following exchange:

5

The standing order provided that “[t]his entire order will terminate and will no longer be

effective once the court signs a final order.” Because a final order was signed in the original divorce

decree, Zeifman reasons, our opinion reversing the modification order reinstated the prior final order

and terminated the standing order.

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Q: And was that your position on that date of August 10th that the agreed final

decree of divorce in that provision governed or that the order that had been

overturned by the Court of Appeals on May 25th, 2005, governed?

Hays: It was actually—that was the fall-back position. I firmly believe that the

mandate did not—because a mandate had not issued, Judge Meuerer’s order

was still in effect.

As for a legal or factual basis to seek an injunction against AISD in particular,

Zeifman points to Hays’s testimony regarding the research he conducted prior to seeking an

injunction against AISD:

I performed the research to see whether there was legal authority for being able to file

a lawsuit against a third party to prevent them from aiding and abetting another

party from violating a court order. And I found that there was authority that says

you can file a lawsuit against a third party to prevent them from aiding and abetting.

And once I saw that, that was the authority I was looking for. And that was the

justification for filing this suit against AISD.

Although Zeifman questions the validity of Hays’s conclusions and suggests that he should

have done more research, he points to no cases that would persuade us that appellees lacked a

good faith legal or factual basis for seeking relief against AISD. See Dike v. Peltier Chevrolet, Inc.,

343 S.W.3d 179, 191 n.15 (Tex. App.—Texarkana 2011, no pet.) (sanctions movant’s argument

that non-movant “failed to introduce evidence sufficient to support his claims . . . or to establish

the merit of the underlying claim . . . misapprehends the parties’ relative burdens”). Based on the

circumstances known to the appellees at the time of the filing, and given our deferential review of

acts committed to the district court’s discretion, we cannot conclude that the court abused its

discretion in concluding that the lawsuit was not groundless.

14

Bad faith or purpose of harassment

Even if the district court had concluded that the AISD lawsuit was groundless,

Zeifman would also have to establish that Hays and Barrett brought the suit in bad faith or for

the purpose of harassment. Under rule 13, “bad faith” requires the conscious doing of a wrong

for a dishonest, discriminatory, or malicious purpose. Robson v. Gilbreath, 267 S.W.3d 401, 407

(Tex. App.—Austin 2008, pet. denied). In deciding whether a pleading was filed in bad faith or for

the purpose of harassment, the trial court must consider the acts or omissions of the represented

party or counsel, not merely the legal merit of a pleading or motion. Parker v. Walton, 233 S.W.3d

535, 540 (Tex. App.—Houston [14th Dist.] 2007, no pet.). The party moving for sanctions must

prove the pleading party’s subjective state of mind. Thielemann v. Kethan, 371 S.W.3d 286, 294

(Tex. App.—Houston [1st Dist.] 2012, pet. denied). Bad faith does not exist when a party merely

exercises bad judgment or is negligent. Id. A party acts in bad faith if he has been put on notice

that his understanding of the facts may be incorrect and he does not make reasonable inquiry

before pursuing the claim further. Robson, 267 S.W.3d at 407. “Harass” is used in a variety of legal

contexts to describe words, gestures, and actions that tend to annoy, alarm, and verbally abuse

another person. Thielemann, 371 S.W.3d at 294 (citing Elkins v. Stotts-Brown, 103 S.W.3d 664, 669

(Tex. App.—Dallas 2003, no pet.)).

Courts presume that pleadings, motions, and other papers are filed in good faith,

and the party moving for sanctions has the burden of overcoming this presumption. See Tex. R.

Civ. P. 13, 215; Lovelace, 243 S.W.3d at 256 (citing Tanner, 856 S.W.2d at 731). However, direct

evidence of a sanctioned person’s subjective intent is not required to rebut the presumption. See

Keith v. Solls, 256 S.W.3d 912, 919 (Tex. App.—Dallas 2008, no pet.) (citing Schexnider v. Scott

15

& White Mem’l Hosp., 953 S.W.2d 439, 441 (Tex. App.—Austin 1997, no pet.)). Intent may be

shown by circumstantial evidence as well as direct evidence. Keith, 256 S.W.3d at 919. Under an

abuse of discretion standard, the trial court judges the credibility of the witnesses and may resolve

any conflicting testimony. Id.; Keever v. Finlan, 988 S.W.2d 300, 313–14 (Tex. App.—Dallas 1999,

pet. dism’d) (“The trial court’s choices among merely conflicting pieces of evidence cannot be an

abuse of discretion.”).

Zeifman contends that the record supported a finding that the appellees “chose to file

a lawsuit against AISD with the improper motive of controlling Zeifman’s actions and to restrict his

participation in his daughter’s education decisions . . . , circumventing the ruling of the appellate

court instead of seeking relief with the family law court or working within the confines of the

original divorce decree.” Zeifman further argues that the decision to file suit to enjoin AISD, instead

of working with Zeifman to resolve the parties’ disagreement pursuant to the divorce decree reveals

a “malicious, dishonest and discriminatory purpose constituting bad faith.”

Hays testified that he did not file the AISD lawsuit with the intent to frustrate, annoy,

or harm Zeifman. Instead, he explained, “[t]he intent was to prevent Mr. Zeifman from removing

[A.A.]. It was to keep [A.A.] in the school that she had been in for the previous two years and

not to disrupt her life. The focus was on keeping [A.A.] in school and not—the focus wasn’t on

Mr. Zeifman.” Hays further testified that, based on the evidence available to him, he “had a clear

indication” that Zeifman was planning to withdraw A.A. from her current school and that his

attorney would not stop Zeifman from acting. Zeifman admits that he was “prepared to enroll A.A.

in Bryker Woods,” but asserts that as of August 14, he had not actually done so, nor had he “shown

any signs of self-help other than instigating a letter-writing battle between attorneys.” In a letter to

16

Michels, however, Zeifman stated that he had “informed Brykerwoods of [A.A.’s] re-enrollment and

completed the necessary paperwork.”

Regarding Zeifman’s complaint that the appellees were attempting to circumvent this

Court’s ruling, the appellees maintain that they believed Zeifman lacked authority to unilaterally

enroll A.A. in Bryker Woods for at least three reasons: (1) the mandate on this Court’s decision

reversing the modification order had not yet issued; (2) the Travis County standing order prohibited

Zeifman from withdrawing A.A. from her current school without Michels’s agreement or a court

order; and (3) if the divorce decree were again in effect, which they did not believe was the case,

it would still require Zeifman and Michels to follow the recommendation of her then-current teacher

at St. Andrew’s. Thus, they argue that the injunction merely preserved the status quo. They also

note that we later rejected Zeifman’s belief that he was entitled to enroll [A.A.] in Bryker Woods

over Michels’s objection. See In re Zeifman, 2006 Tex. App. LEXIS 11340, at *2. Additionally,

they point out that they fully disclosed this Court’s opinion in their petition for injunctive relief and

explained to the district court why they believed the opinion was not yet enforceable.

Zeifman also complains that the appellees failed to provide notice to him as required

under the original divorce decree. However, at the time, the parties did not agree about whether or

not the original divorce decree was in effect, and therefore whether or not notice pursuant to that

decree would have been required. Hays further testified that he did not believe any of his actions

violated the divorce decree:

Q: In your opinion, does seeking a temporary injunction and not giving the other

parent notice, as you did in this case, violate the agreed decree of divorce and

notice provisions contained in it.

Hays: No, it does not.

17

Zeifman also complains that the appellees filed suit with knowledge that his

attorneys would be out of town. Specifically, Zeifman’s attorney had notified Michels’s attorney that

he would be out of town from August 14–17, 2006 to attend a family law conference. However,

Michels’s attorneys obtained a TRO against AISD on August 14, 2006. The appellees point out

that Zeifman notified Michels less than a week before the new school year was set to start on

August 15 that he had “informed Brykerwoods of [A.A.’s] re-enrollment and completed the

necessary paperwork.” Accordingly, the appellees argue that the district court could reasonably have

concluded that the appellees acted when they did, not to evade a challenge by Zeifman’s attorneys,

but because the school year was about to begin.

Although a different original fact-finder might have reached a different outcome on

this record, that is not the standard under which this Court is required to review the district court’s

decision. Viewing the evidence in the light most favorable to the district court’s ruling and drawing

all reasonable inferences in favor of that ruling, as we must, we cannot conclude that the

district court abused its discretion in its determination of appellees’ subjective state of mind,

concluding the injunction action was not filed in bad faith or with the intent to harass Zeifman. We

overrule Zeifman’s first issue. See Lovelace, 243 S.W.3d at 254–55 (finding no abuse of discretion

in failing to award sanctions even though suit was statutorily barred); see also Manning v. Enbridge

Pipelines (East Tex.) L.P., 345 S.W.3d 718, 729 (Tex. App.—Beaumont 2011, pet. denied) (finding

no abuse of discretion in trial court’s refusal to impose sanctions and noting that “[c]onsidering

the trial proceedings, the trial court is in a better position than this Court to decide whether to impose

sanctions”).

18

Sanctions under chapter 10

Zeifman also sought sanctions for the same conduct under chapter 10 of the

Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code §§ 10.001–.005. That chapter

provides as follows:

The signing of a pleading or motion as required by the Texas Rules of Civil

Procedure constitutes a certificate by the signatory that to the signatory’s best

knowledge, information, and belief, formed after reasonable inquiry:

(1) the pleading or motion is not being presented for any improper purpose, including

to harass or to cause unnecessary delay or needless increase in the cost of litigation;

(2) each claim, defense, or other legal contention in the pleading or motion is

warranted by existing law or by a nonfrivolous argument for the extension,

modification, or reversal of existing law or the establishment of new law;

(3) each allegation or other factual contention in the pleading or motion has

evidentiary support or, for a specifically identified allegation or factual contention,

is likely to have evidentiary support after a reasonable opportunity for further

investigation or discovery; and

(4) each denial in the pleading or motion of a factual contention is warranted on the

evidence or, for a specifically identified denial, is reasonably based on a lack of

information or belief.

Id. § 10.001. Awards of attorney’s fees under the Civil Practice and Remedies Code require

essentially the same findings as does rule 13. Lovelace, 243 S.W.3d at 256. Although rule 13

requires a party to have filed a groundless pleading brought in bad faith or a groundless pleading for

harassment, sanctions under chapter 10 can be awarded if the suit was filed for an improper

purpose, even if the suit was not frivolous. See Alpert v. Crain, Caton & James, P.C., 178 S.W.3d

398, 411–12 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). However, having already decided

that the district court did not abuse its discretion in concluding that the lawsuit against AISD was

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not groundless, frivolous, brought in bad faith, or brought for the purpose of harassment, we

similarly hold that the district court did not abuse its discretion in refusing to award sanctions under

this provision of the Civil Practice and Remedies Code.6 See Lovelace, 243 S.W.3d at 257 (holding

trial court did not abuse its discretion in refusing to award sanctions under chapter 10 after

concluding that suit was not “groundless, frivolous, brought in bad faith or brought for the purpose

of harassment” for purpose of sanctions under rule 13). We overrule Zeifman’s second issue.

Award of attorney’s fees

In a third issue,7 Zeifman argues that the district court erred in awarding $10,000 to

each of the appellees in attorney’s fees for successfully defending against his motion for sanctions

pursuant to chapter 10 of the Civil Practice and Remedies Code, which provides as follows:

The court may award to a party prevailing on a motion under this section the

reasonable expenses and attorney’s fees incurred in presenting or opposing the

motion, and if no due diligence is shown the court may award to the prevailing party

all costs for inconvenience, harassment, and out-of-pocket expenses incurred or

caused by the subject litigation.

Tex. Civ. Prac. & Rem. Code § 10.002(c).

6

Zeifman relies on Law Offices of Wendell Turley, P.C. v. French to support his claim

for sanctions under chapter 10. 164 S.W.3d 487, 491–92 (Tex. App.—Dallas 2005, no pet.). In the

case, the Dallas Court of Appeals affirmed a trial court’s order imposing sanctions against an

attorney that filed duplicative proceedings in two separate courts. Id. at 489. The Dallas Court

concluded that the trial court “could have determined appellants filed the Dallas lawsuit not to

protect their legal interests, but to improperly circumvent an imminent ruling from the Tarrant

County trial court poised to finally dispose of the same legal issues.” Id. at 492 (emphasis added).

By the same token, after a review of the evidence before it, we have concluded that the district court

could have concluded that the appellees did not file the AISD lawsuit for an improper purpose.

7

Michels and Hays suggest that Zeifman may have waived this issue because he did not list

it as a separate “issue presented” in his brief and, they assert, he provided insufficient legal authority

to support his argument. See Tex. R. App. P. 38.1(i). As Zeifman notes, “[t]he statement of an

issue or point will be treated as covering every subsidiary question that is fairly included.” See id.

R. 38.1(f). We conclude that Zeifman sufficiently briefed this issue.

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Zeifman does not challenge the amount of attorney’s fees the district court

awarded—in fact, he stipulated below that $10,000 was a reasonable and necessary amount of

attorney’s fees for each of the appellees—but instead asserts that the district court abused its

discretion in awarding the appellees attorney’s fees at all. Other than complaining that the

district court’s award was predicated on an erroneous denial of his sanctions motion against

appellees, an assertion we have rejected above,8 Zeifman’s central complaint is that the

district court’s award penalized him for taking the exact actions which he believes this Court

instructed him to do. Zeifman points to the following statement in our opinion overturning the

district court’s ruling striking his petition in intervention:

In light of our observation that Michels’s conduct as alleged by Zeifman “is indeed

disturbing,” the district court on remand should carefully consider the facts known

by Michels at the time she filed suit against AISD when determining whether

sanctions are appropriate.

Zeifman, 229 S.W.3d at 468. Because this Court specifically instructed the district court to

“carefully consider the facts known by Michels,” Zeifman maintains that an award of Michels’s

attorney’s fees would be particularly inappropriate.

As the appellees point out, this Court’s statement did not refer to Michels’s

conduct, but rather to Michels’s conduct as alleged by Zeifman. The merits of Zeifman’s sanction

motion were not before this Court at that time. This Court did not render judgment on the sanctions

8

By the same token, Zeifman contends that the district court erred in not awarding him

his reasonable and necessary attorney’s fees incurred in connection with “responding to baseless

proceedings” and to “deter similar conduct in the future.” Because we have concluded that the

district court did not abuse its discretion in denying his motion for sanctions, it similarly did not err

in refusing to award him attorney’s fees.

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issue, but instead remanded and instructed the district court to carefully consider the matter. The

district court did so and concluded that the evidence did not support the imposition of sanctions.

Though the term “prevailing party” is not explicitly defined in chapter 10, we

conclude that by successfully defending against Zeifman’s sanctions motion, each of the

appellees were “prevailing parties.” See TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432,

439 (Tex. 2011) (“Undefined terms in a statute are typically given their ordinary meaning . . . .”).

Zeifman does not dispute that the appellees were prevailing parties within the meaning of the statute

and he previously stipulated that their requested fees were reasonable and necessary. Accordingly,

we conclude the district court did not abuse its discretion in awarding attorney’s fees to the appellees

for successfully opposing Zeifman’s motion for sanctions. We overrule his third issue.

Hays’s cross-point

In a cross-point, Hays requests that we impose damages against Zeifman under rule 45

of our appellate procedure rules for filing a frivolous appeal. See Tex. R. App. P. 45 (“If the court

of appeals determines that an appeal is frivolous, it may—on motion of any party or on its

own initiative, after notice and a reasonable opportunity for response—award each prevailing party

just damages.”). “The question of whether to grant sanctions is a matter of discretion, which

we exercise with prudence and caution, and only after careful deliberation.” Jackson v. Hoffman,

312 S.W.3d 146, 156 (Tex. App.—Houston [14th Dist.] 2010, no pet.). We will impose sanctions

only in circumstances that are truly egregious. Jackson, 312 S.W.3d at 156. To determine whether

an appeal is frivolous, we “look at the record from the viewpoint of the advocate and decide whether

he had reasonable grounds to believe the case could be reversed.” Smith v. Brown, 51 S.W.3d 376,

381 (Tex. App.—Houston [1st Dist.] 2001, pet. denied).

22

While Zeifman was ultimately unsuccessful in this appeal, we conclude that

sanctions are not appropriate here. See Easter v. Providence Lloyds Ins. Co., 17 S.W.3d 788, 792

(Tex. App.—Austin 2000, pet. denied) (sanctions unwarranted against ultimately unsuccessful party

when she had reasonable expectation of reversal and there had been no showing that she pursued

appeal in bad faith). We deny Hays’s motion.

CONCLUSION

Having overruled each of issues presented, we affirm the district court’s judgment.

__________________________________________

Bob Pemberton, Justice

Before Justices Puryear, Pemberton, and Field

Affirmed

Filed: August 22, 2013

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