# Mark H. Pine v. Catherine Deblieux

> Texas Court of Appeals, 1st District (Houston) · February 21, 2013 · 405 S.W.3d 140

URL: https://www.frixlaw.com/law-library/cases/3119422

## Case

- **Full name:** Mark H. PINE, Appellant v. Catherine DEBLIEUX, Appellee; Jennifer H. Pine, Appellant v. Catherine Deblieux, Appellee
- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** February 21, 2013
- **Citations:** 405 S.W.3d 140; 2013 WL 634695
- **Precedential status:** Published
- **Opinion:** Opinion by Radack
- **Judges:** Radack, Higley, Brown
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3119422

## How later opinions describe it (automated extraction)

- observing successor administrator who filed motion for summary judgment seeking declaration that certain assets of her father’s estate were not subject to administration demonstrated potential conflict by failing to respond to her own motion on behalf of the estate
- applying this rule to hold that an interlocutory probate order merged into a final judgment

## Opinion text

Opinion issued February 21, 2013

In The

Court of Appeals
For The

First District of Texas
————————————
NOS. 01-11-00957-CV
01-13-00008-CV
———————————
MARK H. PINE, Appellant
V.
CATHERINE DEBLIEUX, Appellee

****
JENNIFER H. PINE, Appellant
V.
CATHERINE DEBLIEUX, Appellee

On Appeal from the County Court at Law Number 4
Brazoria County, Texas
Trial Court Case Nos. PR-030352 and PR-030352A
OPINION

In this probate case, (1) appellant Jennifer Pine challenges the trial court’s

Final Judgment on Petition for Declaratory Judgment, incorporating several

interim rulings related to property of the deceased, Robert Pine, 1 and (2) appellant

Mark Pine’s counsel challenges the trial court’s imposition of sanctions.2

We affirm the sanctions and reverse and remand the final judgment to the

trial court.

JENNIFER PINE V. DEBLIEUX

Robert Pine (Pine) died intestate. While Mark Pine (Pine’s son) was serving

as Independent Administrator of Pine’s estate, appellee Catherine deBlieux (Pine’s

daughter) filed a Petition for Declaratory Judgment claiming, among other things,

individual ownership in a Certificate of Deposit (the P.O.D. Account) and a certain

rights under a purported trust (World Trading Trust) created by her father during

his lifetime. Shortly thereafter, Mark resigned and the trial court appointed

deBlieux as Successor Administrator over the objection of Pine’s other children,

Robin Pine and appellant Jennifer Pine. Robin and Jennifer claimed that all the

children knew that their father used numerous trusts and property transfers to his

children’s names to keep assets out of his name with the understanding that he still

owned the property. Accordingly, Robin and Jennifer argued that deBlieux’s

1
trial court number PR-030352; appellate court number 01-13-00008-CV
2
trial court number PR-030352A; appellate court number 01-11-00957-CV
2
claiming individual title to 40% of their father’s property rendered her unsuitable

to represent the estate against those same claims.

After deBlieux was appointed administrator, she individually filed a motion

for summary judgment on her declaratory judgment action, seeking a ruling about

what property was subject to probate and a declaration that the P.O.D. account and

rights under the World Trading Trust passed to her outside of probate. The estate

did not respond to deBlieux’s motion (as deBlieux also was the representative of

the estate as administrator), but Jennifer and Robin filed a response, arguing that

deBlieux had abandoned the estate because of her conflict of interest and

contending that fact issues existed about the ownership of the properties that

deBlieux sought.

A. This Court’s Prior Opinion

Jennifer and Robin appealed to this Court, arguing that the trial court abused

its discretion by appointing deBlieux as Successor Administrator of Robert Pine’s

estate because she has an active conflict of interest that renders her unsuitable as a

matter of law. We agreed, bringing our Court in line with the other courts of

appeals that have considered the issue: 3

3
In each of these cases finding a disqualifying conflict, as here, the excluded
executor or administrator claimed disputed assets as his or her own to the
exclusion of an estate, as opposed to seeking title as beneficiaries through the
probate process. See, e.g., Ayala v. Martinez, 883 S.W.2d 270, 272 (Tex. App.—
Corpus Christi 1994, writ denied) (recognizing that surviving spouse was
3
In this case, there exists a real dispute over the validity of
deBlieux’s individual claims to ownership of substantial assets of her
father’s such that her “personal interests are so adverse to those of the
estate [and] the beneficiaries . . . that both cannot be fairly represented
by the same person.” Bays, 622 S.W.2d at 149 (quoting Haynes, 257
S.W.2d at 792). Accordingly, we sustain Jennifer’s and Robin’s point
of error and hold that deBlieux’s nontestamentary claims to property
owned by Pine upon his death render her unsuitable as a matter of law
to serve as administrator. The trial court thus abused its discretion in
appointing her as such.

Pine v. deBlieux, 360 S.W.3d 45, 51 (Tex. App.—Houston [1st Dist.] 2012, pet.

denied).

Although our opinion issued July 14, 2011, because deBlieux filed motions

for rehearing and en banc reconsideration in this Court (which were denied), and

then a petition for review in the supreme court (which was denied) our mandate did

not issue until November 21, 2012.

unsuitable to administer deceased husband’s estate because she claimed property
from her deceased husband’s separate estate as community property); Bays v.
Jordon, 622 S.W.2d 148, 148–49 (Tex. App.—Fort Worth 1981, no writ) (holding
the trial court abused its discretion by granting letters testamentary to a joint
venturer with the decedent who claimed substantially all of the estate’s assets by
virtue of a written agreement with the testator creating rights of survivorship in
their joint ventures); Hitt v. Dumitrov, 598 S.W.2d 355, 355–56 (Tex. Civ. App.—
Houston [14th Dist.] 1980, no writ) (affirming trial court’s disqualification of
person from administrating wife’s estate because the estates of husband and his
wife, who died together in a plane crash, had adverse claims to the same insurance
proceeds such that the administrator could not advocate for both estates against
each other effectively); Haynes v. Clanton, 257 S.W.2d 789, 790, 792 (Tex. Civ.
App.—El Paso 1953, writ dism’d) (affirming trial court’s determination that
administrator was unsuitable because he owned an interest in a bank that had sued
the estate to recover all of the assets of the estate that the bank alleged were
purchased with money embezzled from the bank).

4
B. Further Proceedings in the Trial Court

Shortly after our opinion issued, Jennifer and Robin again sought to have

deBlieux replaced as administrator based on our holding that conflicts of interests

rendered her unsuitable to serve as administrator as a matter of law. The trial court

denied that request. After the trial court signed an October 23, 2011 final

judgment into which several earlier orders merged—including an order concluding

that the P.O.D. account and the World Trading Trust that deBlieux claimed title to

were nontestamentary assets—Robin and Jennifer Pine filed a motion for new trial.

Among other things, the motion challenged the court’s decision to award deBlieux

these assets “to the exclusion of the estate, despite the fact that, as administrator,

she was duty bound to defend the estate’s interests in those assets.” The motion

reasoned that, while this Court’s opinion had not become technically final, the trial

court should not render a final judgment disposing of Robert Pine’s assets with

deBlieux serving as administrator in light of our ruling she was unsuitable as a

matter of law. The trial court denied that motion as well, and Jennifer appealed.

B. Issues in Jennifer Pine’s Appeal

Appellant Jennifer Pine identifies the “central issue presented [a]s whether

the trial court may undertake acts contrary to and/or that constitute an interference

with the Court’s judgment, after the judgment is issued but before the trial court

5
receives a mandate.” Her appellant’s brief presents the following specific related

sub-issues:

1. “Whether the trial court erred in denying Appellant’s motion for
removal of Appellee as administrator on the basis of the Court’s
judgment of 7/14/11?”

2. “Whether the trial court erred in denying Appellant’s motion for an
order requiring Appellee to undertake discovery of the facts
surrounding the overseas trust claimed by Appellee?”

3. “Whether the trial court erred in granting a summary judgment
awarding deBlieux, individually, the certificate of deposit and the
overseas trust.”
4. “Whether the trial court erred in granting its final judgment on
9/23/11 without a qualified administrator being appointed to
defend the estate.”

In response, deBlieux argues that the court’s orders were not erroneous, and

designates the following issues as cross-points:

1. “Jennifer’s appeal should be dismissed for violation of the briefing rules”

2. “Jennifer should be sanctioned for filing a frivolous appeal”

C. Parties’ Arguments

Jennifer’s arguments focus on the effect of this Court’s July 11, 2011

opinion and judgment before our mandate issued on November 21, 2012. Jennifer

insists that the opinion was “law of the case” on the date of the judgment, i.e., July

14, 2011, because the supreme court has admonished that “if an appellate court

expressly states the time for its decision to take effect, that statement controls.”

6
Edwards Aquifer Auth. v. Chem. Lime Ltd., 291 S.W.3d 392, 393 (Tex. 2009). She

argues that as a result of our prior opinion, the trial court’s judgment in its entirety

should be reversed, as it was awarded without a qualified administrator willing to

conduct discovery or defend the estate.

In response, deBlieux contends that our prior decision did not become law of

the case before the trial court’s final judgment was rendered because only

“questions of law decided on appeal to a court of last resort will govern the case

throughout its subsequent stages.” Hudson v. Wakefield, 711 S.W.2d 628, 630

(Tex. 1986). Because, she argues, our prior opinion was “not the decision of the

court of last resort” while her petition was pending in the supreme court, the law of

the case doctrine simply does not apply.

She also points to section 28 of the Texas Probate Code, which states,

“Pending appeals from orders or judgments appointing administrators or temporary

administrators, the appointees shall continue to act as such and shall continue the

prosecution of any suits then pending in favor of the estate.” TEX. PROB. CODE

ANN. § 28 (Vernon 2003). According to deBlieux, section 28 “specifically

authorizes [her] to continue to act as successor administrator pending the appeal of

her appointment and to prosecute any suits on behalf of the estate, including the

suit for declaratory judgment to which the personal representative of the estate was

a party.” She contends that she “properly prosecuted the declaratory judgment suit

7
by filing the motions for summary judgment and the probate court properly acted

on those motions.”

DeBlieux further argues that Jennifer cannot challenge on appeal the trial

court’s interlocutory orders (1) denying her motion to remove deBlieux as

administrator, or (2) denying her motion to require deBlieux to conduct discovery

on behalf of the estate. Specifically, DeBlieux contends that Jennifer waived

complaint about the removal order by failing to appeal it immediately, and that the

denial of a discovery order is simply not appealable.

According to deBlieux, “the sole issue” properly on appeal is “whether the

probate court correctly determined that the P.O.D. account and the World Trading

Trust are nontestamentary in nature and therefore not part of Mr. Pine’s estate

subject to administration,” which she contends “has nothing to do with” the issue

of her suitability as administrator that we addressed in the prior case.

Finally, deBlieux argues that the trial court’s judgment should be affirmed

because it correctly determined that the P.O.D. account and World Trading Trust

were nontestamentary.

D. Analysis

As a preliminary matter, we disagree that the scope of this appeal is as

narrow as deBlieux urges. She argues that Jennifer’s failure to file a separate

notice of appeal of the trial court’s denial of her motion to remove deBlieux as

8
administrator waived complaint about that ruling on appeal. As support, she cites

Texas Rules of Appellate Procedure 25.1, which requires a notice of appeal be

filed to invoke the appellate court’s jurisdiction. She also argues that Jennifer

cannot complain on appeal about the trial court’s denial of her motion requesting

that deBlieux be ordered to conduct discovery on behalf of the estate about the

World Trading Trust, citing Crowson v. Wakeham, 897 S.W.2d 779, 781–82 (Tex.

1995) for the proposition that the trial court’s denial of the discovery motion is an

interlocutory order that is not appealable.

Jennifer filed a timely notice of appeal from the trial court’s final judgment

and the denial of her motion for new trial. Under well-settled principles, the

interlocutory orders denying her motion to remove deBlieux as administrator and

requesting that the court order deBlieux to conduct discovery merged into the

court’s final judgment and are properly before us now on appeal. E.g., Roccaforte

v. Jefferson Cnty., 341 S.W.3d 919, 924 & n.10 (Tex. 2011) (citing Webb v. Jorns,

488 S.W.2d 407, 408–09 (Tex. 1972) (holding that interlocutory judgment merged

into final judgment, which was then appealable)). Nothing deBlieux cites supports

her contention otherwise. Jennifer has not waived her complaints about these two

interlocutory orders. 4

4
Making a similar argument, diBlieux asks us to dismiss Jennifer’s appeal for
allegedly inadequate briefing. She contends that the only issue properly on appeal
is whether the trial court correctly determined her ownership rights in the P.O.D
9
We now turn to the crux of Jennifer’s argument—i.e., that the trial court

should not have rendered final judgment with deBlieux serving as administrator of

the estate. We agree, and accordingly reverse and remand the trial court’s

judgment.

DeBlieux insists that the trial court could not have erred by refusing to

remove her as executor after we issued our opinion holding she was unsuitable as a

matter of law because our mandate had not issued, and because the “law of the

case” doctrine was not applicable until she had exhausted her appeal to the

supreme court. She also relies on the Texas Probate Code’s express provision that

“Pending appeals from orders or judgment appointing administrators or temporary

administrators, the appointees shall continue to act as such and shall continue the

prosecution of any suits then pending in favor of the estate.” TEX. PROB. CODE §

28.

The Texas Supreme Court recently noted that the relationship among an

appellate court’s opinion, judgment, and mandate, as well as the difference

account and the World Trading Trust in the final judgment. Because Jennifer
argues that the trial court should have removed deBlieux as administrator and
should have ordered discovery into the characterization of these assets, deBlieux
contends that Jennifer has focused her arguments on the wrong issue and waived
any complaint about the final judgment. Contrary to deBlieux’s argument, we
conclude that Jennifer has adequately briefed both (1) her complaints about denial
of her motion to remove deBlieux and about the discovery order, and (2) her
argument that the trial court’s failure to replace deBlieux rendered the final
judgment erroneous. We thus deny deBlieux’s motion to dismiss.
10
between the date that a decision is effective versus when it is enforceable is “an

aspect of Texas appellate procedure that could well benefit from more definite

rules and procedures.” Edwards Aquifer Authority, 291 S.W.3d at 402. Further

clarity on this issue was left for another day, but one concurring justice opined that

appellate decisions generally “should take effect on the date of the judgment,” Id.

at 406 (Brister, J., concurring), while another argued that “as a general matter the

better default date is the mandate, the formal order declaring our review complete,

our decision final, and our judgment enforceable.” Id. at 412–13 (Willett, J.,

concurring). As Justice Brister observed, we are not often presented with this

issue, because “we expect lower courts to follow our decisions without receiving

an explicit order to do so.” Id. at 408 (Brister, J., concurring).

The effective date of the mandate in an interlocutory appeal, like the one in

which we reversed the trial court’s appointment of diBlieux, is set forth in the rules

of appellate procedure, and provide that the mandate is the operative date:

The appellate court’s judgment on an appeal from an interlocutory
order takes effect when the mandate is issued. The court may issue the
mandate with its judgment or delay the mandate until the appeal is
finally disposed of. If the mandate is issued, any further proceeding in
the trial court must conform to the mandate.

TEX. R. APP. P. 18.6.

Thus, deBlieux is correct that our opinion was not technically enforceable

while she pursued further review of our decision. And she is also correct in her

11
assertion that, while the appeal was pending, the trial court was not required to

remove her as administrator just because an appeal had been filed challenging that

appointment. TEX. PROB. CODE § 28.

That said, once our opinion issued reversing the trial court’s order

appointing her as successor administrator and holding that she was unsuitable as a

matter of law, deBlieux’s continuing to resist removal in hopes that the supreme

court would disagree with us was at her own peril. We reasoned that she was

unsuitable because there existed a “real dispute over the validity of [her] individual

claims to ownership of substantial assets of her father’s” such that she could not

effectively represent both her individual interests and the estate’s, Pine, 360

S.W.3d at 51, which continues to hold true with equal force.

While DeBlieux contends that the trial court was not bound by our prior

opinion before the mandate was issued, she does not otherwise address the

substance of our prior opinion. She instead argues at length that the trial court’s

awarding her rights in the P.O.D. account and World Trading Trust was correct

because the nontestamentary nature “of these assets is well settled in Texas.” But

this argument ignores that we have previously found that a legitimate dispute exists

about the nature of these assets, especially given the peculiarities of Robert Pine’s

estate. Indeed, in deBlieux’s brief, she herself acknowledges that the labels given

particular assets have not been dispositive of their nature or ownership. She in fact

12
was able to get property that was titled in her siblings’ names brought into Pine’s

probate estate for administration.

During his lifetime, Mr. Pine arranged his assets and property
in such a manner as to make it difficult to determine the extent of his
property and the fact of his ownership of that property. Mr. Pine
purportedly gifted certain real properties to one of his children without
ever relinquishing control of the property. Although nothing was
recorded, that property appears to have been reconveyed to Mr. Pine
prior to his death. These properties were determined to be part of Mr.
Pine’s estate subject to administration. In addition, Mr. Pine held his
assets, including bank accounts, mobile homes, and real property, in
the names of approximately 49 different trusts. Of these so-called
trusts, approximately 43 were in name only, with no written trust
agreement. These so-called trusts were determined to be invalid for
the reasons stated in the orders and the assets became part of Mr.
Pine’s estate subject to administration.
While deBlieux worked to ascertain the real nature of these various assets as

the administrator, Jennifer has consistently argued that deBlieux’s personal interest

in the P.O.D. account and World Trading Trust prevented her from undertaking

similar investigation regarding these assets. While we express no opinion on the

ownership or characterization of these assets, we hold that—for all the reasons

expressed in our prior opinion—it was error for the trial court to render a final

judgment in this case without removing deBlieux and appointing a suitable

administrator to represent the estate.

We thus reverse and remand the trial court’s judgment. Because the court

will need to assign a new administrator who can assess what investigation or

discovery, if any, needs to be undertaken with regards to the P.O.D. account and

13
the World Trading Trust, we need not address whether the trial court erred in

denying Jennifer’s motion to require deBlieux to conduct discovery on behalf of

the estate. Finally, we also reject deBlieux’s request that Jennifer, the prevailing

party here, be sanctioned for bringing an allegedly frivolous appeal.

MARK PINE V. DEBLIEUX

On August 24, 2011, a status conference was held, where all parties agreed

that the only remaining issue for trial on September 19, 2011 was appellant Mark

Pine’s quantum meruit claim for the value of his services to Pine in connection

with running a mobile home park owned by Pine. During that hearing, someone

from Mark’s counsel’s firm electronically filed and served a new counterclaim for

breach of contract, based on the alleged breach of a Rule 11 agreement dated April

29, 2010. 5

DeBlieux filed a motion to sever and motion for sanctions, arguing that

Mark added the breach-of-contract counterclaim “in bad faith and for the purpose

of delaying the trial scheduled for September 19, 2011.” Mark filed a response

arguing that the filing was not in bad faith, did not meet the standard for imposition

of sanctions, and agreeing to severance of the breach-of-contract claim.

5
According to deBlieux, the Rule 11 issue had previously been resolved by the trial
court, when it denied Mark’s motion to enforce the Rule 11 agreement on May 19,
2011.
14
On August 31, 2011, the trial court held a hearing on deBlieux’s motion.

When asked by the court what evidence she had that Mark’s counsel’s filing was in

bad faith, she responded:

I think, frankly, the fact that—well, because he—the pleading
was clearly drafted the day before. It was filed while we were all
here—unless he’s got an associate, but I can only assume that nothing
would have been prepared and/or filed that was not at Mr. Harvey’s
direction—while we were all here arguing summary judgment—and
at the status conference last week, it was being filed. And when we
got back to the office—I think it came into my office at 10:36 or
10:37, so it had been filed at Mr. Harvey’s direction while we were all
here. . . . [I]it is obvious that Mr. Harvey knew about this, that I had
instructed—I don’t have—let me see—well, this was filed
simultaneously with or immediately before Mr. Harvey represented to
the court and to all counsel that the sole issue with the trial was going
to be this quantum meruit claim that had been left from the summary
judgment.
The court then gave Mark’s counsel an opportunity to explain the

representations he made at the status conference:

COURT: All right. And so, explain to me why you didn’t
tell us when we were at the status conference that you had that
counterclaim coming.
COUNSEL: Because I wasn’t prepared to argue the merits of
the counterclaim.
COURT: What, in your mind, do you think the purpose of a
status conference is?
COUNSEL: Well, based on the name of it, it would be to
determine the status of a case.
COURT: Why do you think we were all standing here
discussing all of those matters?
COUNSEL: Again, to determine the status of the case.

15
COURT: Uh-huh. And so, how is the court to determine the
status of the case and perform my business and my duties that I need
to perform if I don’t have all the information in front of me?
COUNSEL: I don’t have an answer for that.
COURT: All right.
The court asked each attorney at the hearing how much time had been spent

preparing for the hearing, and about their hourly rate. The court then made the

following announcement:

I am going to order that the new claim be severed and that Mark
Pine pay the fees to the clerk so that we can have that entered into as a
new cause of action. . . . . We’re going to sever so we can go forward
on our trial. The court is also going to find that Mr. Harvey—not his
client—not Mark Pine—but Mr. Harvey needs to pay to each of the
attorneys the amounts, the attorneys’ fees.
....
With regards to having to come to answer this, the record will
speak for itself, the docket sheet, the file. We have been down here so
many times. The court has accommodated the parties and tried to
give you hearings so that these matters can be sorted out. We were
here for what was probably the last time on August 24th, to set out all
of the matters, to set out what was going to be tried, what was before
the court, what was still remaining. There was lots of discussion;
everybody was here for that purpose so that we didn’t have to come
back down here again. The court’s schedule is very tight. I had to
accommodate this hearing to get this matter resolved so we would all
know what we were going to try, even though we had already been
here once before to set that out.
The fact that you did not disclose to me or anybody else here
prevented the court in carrying out its business; and as a sanction for
that, I’m going to order that you pay those attorneys’ fees, those each
individual attorneys by September the 30th in the amount of:
$1,552.50 for Ms. Thomas [attorney for Catherine deBlieux]; $2,450
to Mr. Payne [attorney for Jennifer Pine]; and $700 to Mr. Black

16
[attorney for Robin Sims]. And that would be paid by you, not your
client.

On September 20, 2011, the trial court signed an order memorializing its

decision severing Mark’s breach-of-contract claim and ordering sanctions in the

amounts announced at the hearing to be paid by David Harvey.

A. Issues in Mark Pine’s Appeal 6

Harvey brings two issues on appeal:

1. “The trial court erred in granting Appellee’s motion for sanctions.”

2. “The trial court erred by entering a legally deficient order imposing
sanctions.”
DeBlieux filed an appellee’s brief stating that the amount of sanctions at issue are

not worth the cost of preparing a response, so she “chooses to make no further

response to appellant’s brief.”

B. Analysis

Harvey argues that both deBlieux’s motion for sanctions and the court’s

order awarding sanctions were deficient such that reversal is required.

We review the trial court’s imposition of sanctions under an abuse of

discretion standard. See Kings Park Apartments, Ltd. v. Nat’l Union Fire Ins. Co.,

101 S.W.3d 525, 540 (Tex. App.—Houston [1st Dist.] 2003, pet. denied); Gaspard

v. Beadle, 36 S.W.3d 229, 239 (Tex. App.—Houston [1st Dist.] 2001, pet. denied);
6
Although Mark is identified as the appellant, his counsel and the party actually
sanctioned—David N. Harvey—filed the notice of appeal complaining of the trial
court’s sanctions order.
17
Finlay v. Olive, 77 S.W.3d 520, 524 (Tex. App.—Houston [1st Dist.] 2002, no

pet.). “The test for abuse of discretion is whether the trial court acted without

reference to any guiding rules and principles, or equivalently, whether under all the

circumstances of the particular case the trial court’s action was arbitrary or

unreasonable.” Koslow’s v. Mackie, 796 S.W.2d 700, 704 (Tex. 1990).

1. Motion for Sanctions

Harvey argues that deBlieux’s motion is fatally defective in that it: (1) did

not identify the specific authority under which she sought sanctions, (2) failed to

argue that the sanctions have a direct relationship to his conduct and are not

excessive, and (3) is not supported by attached evidence. Relatedly, he argues that

the sanctions awarded to the attorneys for Jennifer Pine and Robin Sims likewise

should be reversed, as they were not based on any pleadings.

In support, Harvey cites Greene v. Young, 174 S.W.3d 291, 300–01 (Tex.

App.—Houston [1st Dist.] 2005, pet. denied) for the proposition that a trial court

cannot impose sanctions on grounds that are not specifically identified in the

motion seeking sanctions. In Greene, the motion for sanctions against the

appellants identified specific conduct (i.e., the signing of a particular motion that

contained allegedly false statements) and a specific statutory authority for the

sanctions sought (i.e., Texas Rule of Civil Procedure 13, which allows for

sanctions for knowingly making false statements in pleadings). 174 S.W.3d at

18
296. The trial court in Greene entered a sanctions order based not only on the

signing of false pleadings, but on other conduct it deemed sanctionable, and based

its sanctions on “its inherent power to sanction and on violations of Texas Civil

Practice and Remedies Code Chapter 10, . . . the Texas Disciplinary Rules of

Professional Conduct, . . . and the Texas Lawyers Creed.” Id. at 297. Appellants

complained in their motion for new trial that they were not given adequate notice

of the unpleaded grounds that the court relied upon in imposing sanctions. Id.

This Court reversed the sanctions, holding that appellants were not afforded

adequate notice before they were sanctioned. Id.

Greene is distinguishable in several respects. Primarily, in Greene, the

appellants were sanctioned for conduct different than that identified in the motion

for sanctions, and we emphasized “that appellants had no notice that such conduct

was under consideration for sanctions.” In contrast here, diBlieux’s motion

identified the exact conduct that was the ultimate subject of the court’s sanctions—

failure to disclose information during the status hearing.

The trial courts’ inherent power to discipline an attorney’s behavior,

including the ability to impose sanctions on its own motion in an appropriate case,

has long been recognized. See In re Bennett, 960 S.W.2d 35, 40 (Tex. 1997) (per

curiam) (orig. proceeding); see also Metzger v. Sebek, 892 S.W.2d 20, 51 (Tex.

App.—Houston [1st Dist.] 1994, writ denied) (“Trial courts also have inherent

19
powers on which they may call to administer justice and preserve their dignity and

integrity. This power includes the ability to sanction bad faith conduct that occurs

during the course of litigation.” (citation omitted)). Harvey acknowledges as

much, recognizing in his brief that the trial court can assess sanctions based on its

inherent authority sua sponte, but contends that “the court must provide notice to

the party that it intends to rely on its inherent authority to sanction to allow the

party to prepare a defense.” According to Harvey, it “is undisputed that the trial

court did not provide any notice to appellant that it intended to sua sponte sanction

them under its inherent power.”

Unlike in Greene, Harvey never objected to the trial court that he had

inadequate notice of the basis of the court’s sanctions. We conclude that Harvey

had adequate notice of the conduct that formed the basis of the sanctions, and that

he waived any complaint about inadequate notice of the basis for the sanctions.

E.g., Valdez v. Valdez, 930 S.W.2d 725, 728 (Tex. App.—Houston [1st Dist.]

1996, no writ) (holding complaint was waived on appeal, because appellant “never

complained to the trial court that he had no notice that sanctions could be imposed

against him; the first time this complaint is made is on appeal”); Wilner v. Quijano,

No. 01-11-00322-CV, 2012 WL 5311147, at *4 (Tex. App.—Houston [1st Dist.]

Oct. 25, 2012, no pet.) (mem. op.) (“Because [appellant] did not complain to the

trial court about its sua sponte decision to impose sanctions upon him, the trial

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court had no opportunity to correct the alleged error when it was in a position to do

so,”).7

We overrule Harvey’s first issue.

1. Trial Court’s Sanctions Order

Finally, Harvey contends that the trial court’s sanctions order should be

reversed because it does not contain an adequate description of the conduct

supporting the statement or the basis for the sanction imposed. He also complains

that no evidence supporting the trial court’s awards was adduced at the hearing.

During the sanctions hearing, the court asked each attorney about their

hourly rate and how much time they had spent preparing for and attending the

hearing. Ms. Thomas, deBlieux’s attorney, told the court that she had spent

“[p]robably four, four and a half” hours at an hourly rate of $345. Mr. Payne,

Jennifer’s attorney, spent seven hours (including travel time) at $350 an hour. Mr.

Black, Robin Sims’ attorney, spent two hours at $350 an hour.

7
We need not address Harvey’s other complaints about the inadequacy of
deBlieux’s motion or his complaint that the award of sanctions to attorneys for
Robin Sims and Jennifer Pine are not supported by pleadings in light of our
conclusion that the sanctions were proper under the court’s ability to sua sponte
sanction. In any event, these complaints about inadequate pleading were also
waived by the failure to object to the trial court. Wilner, 2012 WL 5311147, at *3
(“[W]hen an attorney fails to complain of the sanction imposed and fails to ask the
trial court to reconsider its actions in imposing the sanction, the attorney waives
any complaint about the trial court’s actions.”) (citing Howell v. Tex. Workers’
Comp. Comm’n, 143 S.W.3d 416, 450 (Tex. App.—Austin 2004, pet. denied)).
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The court stated on the record that Harvey’s failure to disclose the

counterclaim at the status hearing caused each party to incur additional time and

fees attending the second hearing and “prevented the court in carrying out its

business.” Harvey did not complain in the trial court—and he does not argue

here—that the court was not clear at the hearing about the basis for the sanctions or

the conduct that it found sanctionable. He cites authority providing that a trial

court’s order must describe the sanctionable conduct and the basis for the sanction

imposed, but omits that same authority provides that, “if a sanctioned party fails to

object to the form of the order imposing sanctions or request that the grounds be

specified therein, that party fails to preserve the issue for appellate review.”

Jimenez v. Transwestern Prop. Co., 999 S.W.2d 125, 130 (Tex. App.—Houston

[14th Dist.] 1999, no pet.). Because Harvey did not ask the trial court for a more

specific order, he has waived this complaint.

The trial court awarded to each attorney only fees for their time devoted to

the additional hearing: $1,552.50 to Ms. Thomas, $2,450 to Mr. Payne, and $700

to Mr. Black. Harvey did not challenge the amount of these fees at the hearing, nor

does he complain here that the attorneys’ fees awarded were excessive. Instead, he

argues only that the fees were not supported by sworn testimony at the hearing.

We review an award of sanctions only for an abuse of discretion. Glass v.

Glass, 826 S.W.2d 683, 688 (Tex. App.—Texarkana 1992, writ denied) (“The

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amount of attorney’s fees awarded as sanctions for discovery abuse is within the

sound discretion of the trial court and will only be set aside upon a showing of

clear abuse of that discretion. Proof of the necessity or reasonableness of attorney’s

fees are not required when such fees are assessed as sanctions.” (citations

omitted)); see also Miller v. Armogida, 877 S.W.2d 361, 365 (Tex. App.—Houston

[1st Dist.] 1994, writ denied) (rejecting argument that insufficient evidence

supports award of attorney’s fees as sanctions, because point was inadequately

briefed and because ‘[w]hen attorney’s fees are assessed as sanctions, no proof of

necessity or reasonableness is required). Harvey has not demonstrated an abuse of

discretion.

We overrule Harvey’s second issue.

CONCLUSION

The trial court’s sanctions against David Harvey are affirmed. The trial

court’s final judgment is reversed and the case is remanded to the trial court for

further proceedings consistent with this opinion.

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Sherry Radack
Chief Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

24

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3119422. Public record. Not legal advice.