Majority and Dissenting Opinions of May 16, 2019 Withdrawn; Affirmed in 

Part, Reversed in Part and Remanded; Motion to Strike Denied; Motion for 

En Banc Reconsideration Denied as Moot; and Majority and Dissenting

Opinions filed July 30, 2019.

In The 

Fourteenth Court of Appeals 

NO. 14-17-00938-CV

IN THE INTEREST OF D.Z., A MINOR CHILD 

On Appeal from the 245th District Court 

Harris County, Texas 

Trial Court Cause No. 2010-45577 

DISSENTING OPINION 

I respectfully dissent. The trial judge did not award sanctions under Rule 13. 

The judge awarded attorneys’ fees instead, and that award should be reversed and 

rendered because there is no evidence that the fees were reasonable and necessary.

I also write to discuss the scope of the remand. Upon remand, the new judge of the 

245th District Court will need to consider new evidence and the record to 

determine the factors set out in Low v. Henry, 221 S.W.3d 609, 620 n.5 (Tex. 

2007), in order to determine the amount of reasonable fees to award, if any. 
2

A. No Award of Sanctions 

I conclude that the judge did not award sanctions under Rule 13 for the 

following reasons: 

1. There is no pleading for Rule 13 sanctions.

Three times during the course of the litigation, Mother requested sanctions 

for discovery abuse. Twice, the trial court ordered the discovery to go forward but 

did not award sanctions. Mother requested sanctions for filing a groundless and 

frivolous motion for continuance. The trial court granted a short continuance and 

did not award sanctions.

On October 24, 2017, Mother filed another objection and response to 

Father’s second request for continuance. The objection focused on the numerous 

discovery issues in the case and the changing attorneys representing Father. It is 

this motion that the majority contends supports a claim for Rule 13 sanctions.

The motion states: 

The court must consider any potential prejudice to the opposing side if 

the continuance is granted. Granting continuance will be extremely 

unfair to [Mother] and harms the best interest of the child. This 

frivolous lawsuit and [Father’s] violations of discovery rules caused 

[Mother] $40,000 financial damages. Especially, this lawsuit 

prevented [Father] from paying his obligated child support for more 

than two years. The child currently needs sufficient financial support 

to maintain his high quality of life.

The motion never asked for an award of money for filing a frivolous lawsuit, 

nor did it mention Rule 13. It did not allege that the lawsuit was groundless and 

either brought in bad faith or for the purpose of harassment. The motion asked the 

trial court to deny the continuance or alternatively to enter temporary orders 
3

increasing the amount of child support and to pay her $5,000 for violations of 

discovery rules.

I do not consider this motion a request for sanctions under Rule 13.

2. Rule 13 was never mentioned in the trial.

Mother did present some limited testimony as to the frivolous nature of the 

Father’s claims. But she presented no evidence that, at the time that Father filed the 

pleading, he knew the pleading was groundless and that it was brought in bad faith 

or for the purposes of harassment. See Mattly v. Spiegel, Inc., 19 S.W.3d 890, 896 

(Tex. App.—Houston [14th Dist.] 2000, no pet.) (“The trial court must examine 

the circumstances existing when the litigant filed the pleadings to determine 

whether rule 13 sanctions are proper.”).

3. When the trial court orally rendered judgment at the end of the 

trial, the court did not mention sanctions or Rule 13, nor did it 

make the necessary findings to support sanctions.

At the rendition of judgment, the court found a material change in 

circumstances and granted the modification in part and denied it in part. The court 

increased Father’s child support obligation for the future and awarded a retroactive 

child support judgment for a period of 25 months. The court also ordered Father to 

provide health insurance for the child.

The court then said, “The court finds good cause to award attorneys’ fees 

and amicus fees in this case.” The court allocated the amicus fees 75% to the 

Father. The court then said, “The court additionally finds good cause to award 

partial attorneys’ fees to the young lady in the amount of $10,000. Therefore the 

young lady is awarded judgment against the gentleman in the amount of $10,000 

for which let execution issue.” As to the amicus allocation, the court said, “The 

court believes based on the facts and circumstances in this case and the conduct of 
4

the parties is that the gentleman should be responsible for 75 percent of the amicus 

fees.”

At no time did the trial court make the necessary findings to support a Rule 

13 sanction.

4. The final judgment does not mention Rule 13 sanctions.

Rule 13 requires: “No sanctions under this rule may be imposed except for 

good cause, the particulars of which must be stated in the sanctions order.” The 

final judgment does not reference sanctions at all. It provides solely that the court 

finds good cause to award Mother attorneys’ fees.

While it is correct, as the majority notes, that this deficiency can be waived 

by a failure to object in the trial court, that is immaterial. I cite this evidence to 

establish that the trial court did not award sanctions at all. He merely ordered 

attorneys’ fees to be awarded to the Mother.

The majority relies upon the words “good cause”

1

to turn a garden variety 

attorneys’ fees award into a sanctions award. Given the scrutiny that our courts 

apply to sanction awards, I find reliance on that to be unwarranted.

B. Scope of Remand 

I agree with the majority that the Supreme Court abrogated our court’s 

precedent and that a remand in the interest of justice would be appropriate given 

the change in the law if the trial judge had actually awarded sanctions. See Nath v. 

Texas Children’s Hosp., — S.W.3d —, 2019 WL 2553538, at *2–3 (Tex. June 21, 

2019) (per curiam). 

 

1

 Good cause is not a requirement for the award of attorneys’ fees under section 106.002 

of the Family Code but this judge could have thought so as many older family law cases, relying 

on other versions of the statute, required a finding of good cause. See Coburn v. Moreland, 433 

S.W.3d 809, 838–40 (Tex. App.—Austin 2014, no pet.). 
5

Sanctions must fit the wrong and in order to determine a reasonable amount 

of sanctions, if any, the trial judge must determine whether the fees “resulted from 

or were caused by the sanctionable conduct.” Id. at *2. The trial judge must 

consider the factors outlined in Low v. Henry, supra, including taking supplemental 

evidence as to those factors and reviewing the trial record. The court outlined the 

following non-exclusive factors that a trial judge should consider in awarding the 

amount of the sanctions: 

a. the good faith or bad faith of the offender;

b. the degree of willfulness, vindictiveness, negligence, or 

frivolousness involved in the offense;

c. the knowledge, experience, and expertise of the offender;

d. any prior history of sanctionable conduct on the part of the 

offender;

e. the reasonableness and necessity of the out-of-pocket expenses 

incurred by the offended person as a result of the misconduct;

f. the nature and extent of prejudice, apart from out-of-pocket 

expenses, suffered by the offended person as a result of the 

misconduct;

g. the relative culpability of client and counsel, and the impact on their 

privileged relationship of an inquiry into that area;

h. the risk of chilling the specific type of litigation involved;

i. the impact of the sanction on the offender, including the offender’s 

ability to pay a monetary sanction;

j. the impact of the sanction on the offended party, including the 

offended person’s need for compensation;

k. the relative magnitude of sanction necessary to achieve the goal or 

goals of the sanction;

l. burdens on the court system attributable to the misconduct,

including consumption of judicial time and incurrence of juror fees 

and other court costs; [and]
6

n. the degree to which the offended person’s own behavior caused the 

expenses for which recovery is sought.

In Nath v. Tex. Children’s Hosp., 446 S.W.3d 355 (Tex. 2014), the court 

upheld a finding of sanctionable conduct but remanded because the trial court had 

not considered a Low factor when determining the amount of the sanction. Id. at 

372–73. On remand, the trial court was presented with new evidence as to that 

factor. See Nath v. Tex. Children’s Hosp., — S.W.3d —, 2016 WL 6767388 (Tex. 

App.—Houston [14th Dist.] Nov. 15, 2016) (judge considered supplemental 

affidavits and the evidence in the record in assessing the sanction). Similarly here, 

the parties should be able to put on supplemental evidence of the Low factors for 

the trial judge to consider. 

While I believe a render is appropriate in this case, any remand for the 

amount of sanctions, if any, should include evidence as to the Low factors. I 

respectfully dissent.

 

 /s/ Tracy Christopher 

 Justice 

Panel consists of Justices Christopher, Bourliot, and Spain. (Spain, J., majority).