### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-08-00657- CV

Clif ford Zeifman, Appellant

v. Laurie J. Nowl in, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 261 ST JUDICI AL DISTRICT NO. D-1 -GN-0 8-0 0087 7, H ONO RAB LE STEP HEN Y ELENOSK Y , JUDGE P RESIDING

O P I N I O N

This is a suit broug ht by a pare nt ag ainst an ami cu s at t o rney appointed by the trial court to assist the cour t in pr otecting the best interests of a child in a suit a ffe cting the par entchild rela tionship. This suit is an u n fo rt u n at e off- shoot of one of the most contentious divorce and child custody proce eding s to c ome befor e this Court—re peate dly —in r ece nt y ear s. Appellant Cli ff o rd Zei fm an sued appellee L aurie J

. Nowlin alleg ing fra ud and “g ross neg lige nce” on the part of Nowlin acting as the amicus attorney in proce eding s reg arding the implementation of

cer tain provisions of the divorce decr ee betwee n Z eifman and his former wife Shery l Michels. The district court gra n t ed a s u m mary judgme nt in Nowlin’s favor on the basis that she is statutorily immune from the claims broug ht by Z eifman and owes him no duty of car e with respe ct to her work. The district court also awa rded Nowlin sanctions ag ainst Z eifman in the form of attorney s’ fee s on the basis that his claims are frivolous. We aff irm the judg ment of the district cour t.Background Z eifman and Michels wer e divorce d in 1998. T h ey had two children—a son

with special e ducational ne eds and a daug hter. Since the divorce , disputes ove r the e ducation and

car e of the children have g ener ated substantial a nd acr imonious litiga tion. I n 2005, Michels filed 1

a petition to modif

y p are nt-child rela tionship, raising issues as to who would act as their

s o n ’s g uardia

n and what school he would attend. The trial court appointed Nowlin t o ac t as an amicus attorney

for Z eifman’ s son in these proce eding s. The par ties ultim ately

rea ched a

n ag ree d settlement in Fe bruar

y 2007 of the dispute over

the motion to modi fy

. Z eifman fi led this action ag ainst Nowlin in Marc h 2008, alleg ing cause s of action for fr au d an d “g ross neg lige nce” and complaining of Nowlin’s perf ormanc e of her duties as amicus attorney for his son. Nowlin filed a gen er al denial and raised the aff irmative defe nse of immunit y . See Tex. Fa m. Code Ann. § 107.009 (West 2008) (providing court-a ppo i n t ed amicus attorney s immunit y from liability for actions taken, rec ommendations made, or opi n i o ns g iven in that capa city

). Nowlin filed a motion for s u m m ar y j u dg ment on Z eifman’ s claims of fra ud and “g ross neg lige nce.” Nowlin also filed a motion for sanctions. The trial court g rante d the motion for summary judgme nt and the motion for sanctions. The trial court order ed Z eifman to pay Nowlin $39,999 as sanctions for filing a frivolous lawsuit. I n this appea l Z eifman challeng es both the summary

judgme nt and the orde r g rantingsanctions. We aff irm.

See Miche ls v. Zeifman , No. 03-08-002 8 7 -C V, 2009 Tex. App. L EXI S 1017 1 (Tex. App.—Austin Fe b. 12 , 2 0 09, pet. denied) (mem. op.); Zeifman v. Michels , 229 S.W .3d 460 (Tex. App.—Austin 2007, no pet.); In re Zeifman , No. 03-06-00601- CV, 20 0 6 Tex. App. L EXI S 11340 (Tex. App.—Austin Nov. 22, 2006, orig

. proce eding ); Zeifman v. Miche ls , 212 S.W .3d 582 (Tex. App.—Austin 2006, pet. denied). 2Stan dard of rev iew We revie w the trial court’s summary judgme nt ruling s de novo. Valence Operating Co. v. Dorsett , 164 S.W .3d 656, 661 (Tex. 2005); Provi den t Life & Acc ident Ins. Co. v. Knott , 128 S.W .3d 211, 215 (Tex. 2003). Whe n , as h er e, the district court’s order does not specify the g rounds for its summary judgme nt, we must aff irm the order g ranting summary judgme nt if any of the g rounds pre sented to the district cour t and pre serve d for a

ppellate revie w are meritorious. See Provident Life & Acc ident Ins. Co. , 128 S.W .3d at 216.

A def endant moving for a traditional summary judgme nt must conclusively neg ate at least one essential element o f eac h of the plaintiff’s cause s of action or conclusively establish

eac h element of an aff

irmative defe nse. Scienc e Spectrum, Inc. v. Mar t i n ez , 9 41 S.W .2d 910, 9 1 1 (T ex . 1 9 9 7 ). Once the defe ndant has done so, the burden shifts to the plaintiff to produce eviden ce cr ea t i n g a fac t issue on the element or defe nse. See W alker v. Harris , 924 S.W .2d 375, 377 (Tex. 1996). A g enuine issue of materia l fac t exis ts if the nonmovant produce s more t h an

a scintilla of evidenc e establishing the exis t ence of the challeng ed element. Ford Motor Co.

v. Ridgway , 135 S.W .3d 598, 600 (Tex. 2004). More than a scintilla of supporting evidenc e exis ts if the evidenc e would allow rea sonable and fair- minded people to differ in their conclusions. King Ranch, Inc. v. Chapman , 118 S.W .3d 742, 750-51 (Tex

. 2003). “L ess than a sc intill a of e vidence exis ts when the e vidence is ‘so weak as to do no more than c reate a mer e surmise or suspicion’ of a fa ct.” Id. (quoting Kindred v. Con/Chem, Inc. , 650 S.W .2d 61, 63 (Tex. 1983)).

3Sum m ary judgm ent on th e fraud claim I n his first issue , Zeifman complains that the district court err ed by g ranting summary judgme nt in Nowlin’s favor on his fra ud claim. Nowlin soug ht summary judgme nt on the basis t h at s h e i s immune from this ty pe of fra ud claim pursuant to section 107.009 of the family code. Sec tion 107.009 provides:

A g uardia

n ad litem , an attorney ad litem, or an amicus attorney appointed under this chapte r is not liable for civil damag es arising from an action taken, a re commendation made, or an opinion g iven in the capa city of g uardia n ad litem , attorney ad litem, or amicus a ttorney
. Tex. Fam. Code Ann. § 107.009( a). There are cer tain exceptions to this immunit y . The statutory immunit y does not apply to an action taken, rec ommendation made, or opinion g iven (1 ) wi th conscious indiffer ence or rec kless disreg ard to the safe ty of another ; (2) in bad faith or with malice;

or (3) that is g rossly neg lige nt or willfully wrong ful. Id. § 107.009(b). There is no exception to this statutory immunit y for a claim that the amicus attorney committed fra ud with r espec t to one of the pare nts of a child the a ttorney is assisting. The summary judgme nt evidenc e conclusively proves that Nowlin wa s ap p o inted to se rve as an amicus attorney in the underly ing suit pursua

nt to family

code se ction 107.021. See id. § 107.021 (West 2008). All of the alleg ations supp o rt i n g Zeifman’s cause s of action perta in t o Nowli n’s perf

ormanc e of her duties as amicus attorney and actions taken in that ca p ac i t y . Nowlin soug ht summary judgme nt on the basis that she conclusively proved the application of section 107.009. Nowlin dem o n s t rated that Z eifman’ s claims for damag es in this lawsuit derive from and c halleng e the se rvice she provided as amicus attorney —a fa ct that is not disputed—and,
4there fore , conclusively established that she was entitled to immunit y for any claim not cover ed by an

exception. The immunit y statute rec og nizes no exception for alleg ations of fra ud as to the pare nts. The trial c ourt proper ly

g rante d summary

judgme nt on Z eifman’ s fra ud claim. 2 Moreove r, even if Z eifman’ s fra ud claim could be const rued to alleg e a

ca u s e of action for conduct that could fit within an exception to immunit y , summary judgme n t is still proper . Once Nowlin conclusively established as an aff irmative defe nse that she was entitled to the statutory immunit y aff orded an amicus attorney , the burden of production shifted to Z eifman to prese nt evidenc e sufficie nt to cre ate a fac t issue on at least one element of either the aff irmative defe nse or an exception to the aff irmative defe nse. See Palmer v. E n s er ch C o r p. , 728 S.W .2d 431, 435 (T ex . App.—Austin 1987, writ ref ’d n.r.e.) (citing “Moore” Burger, Inc.

v. Phillips Petroleum Co. , 492 S. W

. 2 d 9 3 4 (T ex . 1972)). Z eifman did not produce or file any

s u mmary judgme nt evidenc e at all in response to Nowlin’s motion, rely ing instead s o l el y o n t h e al l eg ations contained in his petition. I t is well-settled that, with exceptions that do no t ap p l y here , pleading s are not competent summary judgme nt evid en ce . L a i d law W aste Sys. v. City of W i l me r , 904 S.W .2d 656, 660 (Tex. 1995); Hidalgo v. Surety Sav. & Loan Ass’n , 462 S.W

. 2 d 540 , 543-44 (Tex. 1971). Z eifman cannot rely on his pleading s to claim that he met his burden of producing evidenc e to cre ate a fact issue on the application of section 107.009. We overr ule Z eifman’ s first issue.

The basis of Z eifman’ s fra ud claim is an alleg ation of misrepre sentation of fac t. Z eifman 2 does not make any independe nt al l ega t ions of bad faith or malice to the court, his son, or any one else

. 5Sum m ary judgm ent on th e “gross negligence” c laim I n his second issue, Z eifman contends that the trial court err ed by g ranting judgme nt in Nowlin’s favor on his “g ross neg lige nce” claim. Nowlin soug ht summary judgme nt on the basis that an amicus attorney appointed to assist the court in a suit aff ecting the pare nt-child rela tionship

owes no duty of care to either of the child’s pare nts. T h us, Nowlin arg ued, Ze ifman’s neg lige nce claim fa ils as a matter of

law for lack of an esse ntial element. The family code define s an “amicus attorney ” as “an attorney appointed by the court in a suit, other than a suit filed by a g overnme ntal entity , whose role is to provide leg al s er v i ces

nece ssary to assist the court in protec ting a child’s best interests rathe r than to provide leg al service s to the child.” Tex. F am. Code Ann. § 107.001(1) (West 2008)

. The amicus attorney is appointed 3 t o as s i s t the court, not to repr esent the child or either of t he parents. See O’Connor v. O’Connor , 245 S.W .3d 511, 515 (Tex. App.—Houston [1st Dist.] 2007, no pet.). There fore , it is the trial court, not the parties, to whom the amicus attorney is responsible for the limit ed purposes delineate d in the statute. Id. The amicus attorney owes a duty of competent repr esenta tion to the t rial court, not to the par ents. We hold that an amicus attorne y appointed by the court in a sui t affe cting the par entchild rela tionship has no duty of car e to either pare nt. The trial court proper ly gra nted Nowlin’s 4

The role of an amicus attorne y i s differ ent from that of an “attorne y ad litem,” who 3 “provide s leg al service s to a p er s o n , i n cl u ding a child, and who owes to the person the duties of undivided loy alty , confid entiality , and competent repr esenta tion.” Tex. Fam. Code Ann. § 107.001(2) ( West 2008).

Be cause the issue is not befor e us, we express no opinion as to what duties the 4 amicus attorney may have to the ch i l d wh o s e b es t interests he is char g ed with assisting the court to protect. 6motion for summary ju d gm en t on Z eifman’ s “g ross neg lige nce” claim. We overr ule Z eifman’ s second issue.

Im position of sanctions

I n three issues, Z eifman c halleng es the district cour t’s sanctions orde r. W e review

a trial court’s ruling on a motio n fo r s anctions apply ing an abuse of discretion standard. Low

v. Henry , 221 S.W .3d 609, 614 (Tex. 2007). The trial court abuses its discretion when it acts without ref ere nce to any g uiding rules or principles such that its ruling is arbitra ry o r u n re asonable

. See Do w ner v. Aquamarine Operators, Inc. , 701 S.W .2d 238, 241-42 (Tex. 1985). I n this ca s e, t h e district court imposed sanctions pursuant to rule 13 of the rules of civil proce d u re , chapte r 10 of the civil prac tice and reme dies code, and its inhere nt power . See Tex. R. Civ. P. 13; Tex. Civ. Prac. & Rem. Code Ann. §§ 10.001-.006 (W est 2002). I f t he dis trict court’s imposi tio n o f s an ct i o ns is supported under

one of the se leg al base s, we will aff irm the order

. Rule 13 provides:

The signa

tures of attorney s or parties constitu t e a certificate by them that they have rea d the pl eading , motion, or ot her paper ; that to the best of t heir knowledg e, information, and belief formed afte r rea sonabl e i nquiry the instrument is not g roundless and broug ht in bad faith or g roundless and broug ht for the purpose of hara ssment
. . . . I f a pleading , m o t i o n or other paper is signe d in violation of this rule, the court, upon motion or upon its own initiative, afte r notice and hear ing, shall i m p o s e an appropr iate sanction available under Rule 215

. . . upon the par t y wh o signe d it, a repr esente d party , or both.

Tex. R. Civ. P. 13. Rule 13 define s “gr o u n d less” as having “no basis in law or fac t and not

war rante d by g ood faith arg ument for the extension, modification, or reve rsal of exis ting law.” Id.

7Gene rally , courts presume that pleading s and other paper s are filed in g ood faith. Low , 221 S.W .3d

at 614. The pa

rty seeking sanctions bea

rs the burde n of over coming this presumption. Id. Z ei f ma n c o n te n d s th a t th e tr ia l court abused its discretion in imposing sanctions under rule 13 beca

use (1) the court’s order does not “state the particula rs showing that Z eifman’ s Petition had no basis in law and fac t,” and (2) the evidenc e adduce d at the hear ing failed to establish that his suit was g roundless and broug ht in bad faith or to hara ss. This is not the case . The trial court’s order

rec ited sever al base s for the sa nctions awa

rd, including , but not lim ited to, the following :

• Nowlin did have extensive rec ords of her activities and perf ormed numerous objective functions in the underly ing SAPC R, and there fore , the alleg ations in para g raph 2 of Z eifman’ s petition have no basis in fact and are lacking evidentiar y support;

• Nowlin conducte d multipl e interview s with the prospec tive custodians, interviewe d numerous doctors, and interviewe d personne l at the child’s school, and therefor e, the alleg ations in para g raph 11 of Zeif man’s petition have no ba sis in fact and a re la cking evidentiar

y support;

• Nowlin did not sit at the table with Z eifman’ s ex-wife during court hear ings and did not stay in the room with Z eifman’ s ex-wife during media tion, and there fore , the alleg ations in para g raph 13 of Z eifman’ s petition have no basis in fac t and ar e lac king e videntiary support;

• Z eifman did not make a rea sonable inquiry into the leg al and fac tual basis of the claims he pr esente d in his pleading s in this m atter; a nd

• Z eifman was aware t hat the petition in this case contained alleg ations and other fac tual contentions that lacke d evidentiar y support and wer e not likely to have evidenti ar y s u pport afte r a rea sonable opportunity for further investigation or discovery

.

8These finding s and others contained in the order adequa tely “set forth the particula rs” reg arding how Z eifman’ s petition violated rule 13 by making alleg ations that had no basis in fac t. These finding s justify the impositi on of sanc tions under rule 13. Wit h respe ct to the evidentiar y support for the trial court’s finding s, a revie w of the evidenc e pre sented to t he trial court during the two-day evidentiar y hear ing r evea ls that it was

more than sufficie nt to establish not only that the alleg ations Z eifman made wer e false, but tha t he knew them t o b e false when he filed his petition. Nowlin’s motion for sanctions maintains that Z eifman’ s petition contains numerous alleg ations that Z eifman knew at the time of filing wer e false. For example, in his petit ion, Z eifman a lleg ed that:

After a b ri ef m ee ting with counsel for the ex-wife, Def endant moved into her job with a complete lack of fer vor. She had an idea in mind and had no plans to perf orm her court-a

ppointed functions. Def

endant did not interview prospec tive custodians, did not visit any of the place s that wer e being co n sidered for the child to live, appar ently did not interview any doctors or teac hers, or take any action other than to ask the e x -wife ’s counse l what she wa nted to do.

This alleg ation is demonstrably false. The rec ord evidenc e shows that Nowl in, an experience d family law prac titioner, rathe r than acting “with a complete lack of fer vor,” diligently perf

ormed her duties as an amicus attorney
. The prospec tive custodians for the child at issue wer e an aunt and uncle. Nowlin, in fac t, interviewe d the prospec tive custodians on more than one occa sion, met with them in person, and even participate d in activities with them and the child. Despite his pleading s in the trial court, Z eifman admits the actua l fac ts in his briefing in this Court. I mmediately afte r her appointment Nowlin met with at least two doctors that she enlisted to evalua te the child and prepa re repor ts of their finding s, and she interviewe d the child’s own psy cholog ist and the family thera pist 9in Austin. She also actively monitored the child’s prog ress at school throug h numerous interviews

with the school psy cholog ist. She also spoke direc tly to his teac hers. Throug hout her service as an amicus attorney , Nowlin kept both Z eifman’ s and Michels’s counsel informed of h er ac t ivities and views as to their son’s situation. The identities of the doctors and teac hers with whom Nowlin consulted wer e disclosed in witness lists, and sever al of them wer e deposed by counsel for Z eifman. Z eifman had actua l or constructive knowledg e of all of the activities Nowlin undertook during her tenure as amicus attorney in the underly ing proce eding s. He knew, there fore , that his alleg ation that Nowlin “had no pla

ns to perfor

m her c ourt-appointed f

unctions” wa s false. Z eifman a lso alleg ed that: [Nowlin] beg an to de facto assume the role of co-c ounsel for the ex-wife. She insisted on sitti ng with the [ex -wife ] at all hear ings. W h en the parties went to mediation to try to resolve the issues, Def endant asked to be in the room with the exwife.

At the evidentiar

y hear ing on her motion for sanctions, Nowlin unequivoca lly denied these alleg ations, testify ing tha t she sat at her own t able near the court reporter during hear ings a

nd that she had her own room at the mediation wher e she rema ined except when the mediator reque sted that she accompany him to eac h of t he separate rooms occupie d by the parties. Neither Z eifman, who did not even attend the hear ing on the motion for sanctions, nor his counsel produce d any evidenc e contra dicting or challeng ing Nowlin’s testimony in any way . Neve rtheless, in briefing to this Court, Z eifman, rely

ing solely on t h e alleg ations he made in his petition without any supporting evidenc e, arg ues that the issue is “hotly contested.” Z eifman arg ues, “in light of this evidenc e, the district court must have rea ched its conclusions by making an assessment as to the rela tive cre dibilit y 10of the witnesses and the evidenc e.” Ag ain, Z eifman makes the err oneous assumption that alleg ations

made in his pleading s constitute evidenc e. Rather than rema ining “hotly contested,” the alleg ations

wer e conclusively proven to be false at the evidentiar y hear ing in the trial court with no contra diction by Z eifman. 5 The rec ord p l ai nly and thoroug hly supports the trial court’s finding s that Z eifman knowing ly made alleg ations in his petition that had no basis in fac t and that his suit was g roundless and filed in bad faith. Under th ese circ umstances, the trial court was well within its discretion to impose sanctions under rule 13 of the rules of civil proce dure. We overr ule Z eifman’ s third issue. Be cause we aff

irm the awa

rd of sanctions on this g round, we need not addre ss Z eifman’ s fourth and fifth issues challeng ing the imposit ion of sanctions pursuant to c hapter 10 of the c ivil pra ctice and

reme dies code or the c ourt’s inhere nt power.

Am ount of sanctions I n his seventh issue, Z eifman complains of the am o u n t o f sanctions imposed. We revie w the propriety of the amount of sanctions imposed under an abuse of discretion standard. Id. at 619. Nowli n ’s motion for sanctions included an aff idavit from her counsel stating that he had billed her $38,354 in attorne y s’ fe es to date a nd had incur

red an additional $18,610.12 in fee s and costs that he had not y et billed. This aff idavit was admitted without objection. The court imposed sanctions of $40,000, an amount approximately equal to the attorney s’ fee s billed. Rule 13 allows

We note that Z eifman attended the mediation ref ere nced in his pleading s and his attorney (s) 5 attended the hear ing ref

ere nced in his pleading s. I f evidenc e contr ad i cti ng Nowlin exis ts, it was available to Z eifman. 11for sanctions in the amount of attorney s’ fee s incurre d in de fending a g roundless suit. See Tex. R.

Civ. P. 13, 215.2(b)( 8). The district court made a specific finding that “the sanctions imposed here in

are the minimum sanction sufficie nt to deter ” Z eifman’ s conduct. We reje ct Z eifman’ s arg uments that the district co urt assessed the monetary sanction without ref ere nce to g uiding principles or without considering less sever e sanc tions. W e over rule Z eifman’ s seventh issue. Requested continu ance

Z eifman’ s six th issue complains of the district court’s denial of a motion to continue the hear in g o n t h e motion for sanctions. The day befor e the hear ing, Z eifman filed an unverifie d motion for continuance

. The trial court denied the motion. We revie w the district court’s ruling on

a motion for continuance under an abuse of discretion standard. Villegas v. Carter , 711 S.W .2d 624, 626 (Tex. 1986). Rule 251 of the rule s of civil proce dure g overns c ontinuances a nd provides that

no continuance may be g rante d “e x cept for sufficie nt cause supported by aff idavit, or by consent of the parties, or by opera tion of law.” Tex. R. Civ. P. 251. The supreme court has instructed that g ener ally , when the movant fails to comply with the require ment that the motion for continuance be “supported by aff

idavit,” we are to presume that the trial court did not abuse its discretion in deny ing the motion. Villegas , 711 S.W .2d at 626. Apply ing that presumpt ion here , we conclude that the trial court did not abuse its discretion in deny ing Z eifman’ s unverifie d motion for continuance

.

Z eifman attempts to avoid the conseque nces of filing an unverifie d motion for continuance by arg uing on appea l that he was “entitled to a continuance by operation of law” beca use his motion stated that he was unavailable to attend the evidentiar y h ear ing and the district court could not convene the hear ing without Z eifman’ s prese nce. Howeve r, the trial court is not require d
12to g rant a motion for co n t i n u an ce just beca use a party is not prese nt. See Briscoe v. Goodmark Corp. , 1 3 0 S

. W

. 3 d 160, 169 (Tex. App.—El Paso 2003, no pet.). Moreove r, in order to obtain a continuance based on his unavailability , the party must file a motion explaining, among other things, what the party ’s testimony is expected to prove and that the continuance is not soug ht for the purpose of delay , but so that justice may be done. See Tex. R. Civ. P. 252; Richards v. Schion , 969 S.W .2d 131, 133 (Tex. App.—Houston [1st Dist.] 1998, no pet.); Humphrey v. Ahlschlag er , 778 S.W .2d 480, 483 (Tex. App.—Dallas 1989, no writ). T h e m o t i o n m u st be verifie d. Tex. R. Civ. P. 251. Z eifman offe red no evidenc e in support of his motion, no explanation of his expected testimony , and

no verific ation of his motion. The trial court did not abuse its discretion in de ny ing the motion for continuance . We overrule Z eifman’ s six th issue.

Conclu sion Having overr uled Z eifman’ s seven issues, we aff irm the district court’s judg ment.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ G. Alan Waldrop, Just ice Be fore J ustices Patterson, Pember ton and Waldrop; Concurring Opinion by J ustice Patterson Affir med Filed: Aug ust 27, 2010

13