### 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. 03-12-00114- CV

Clif ford Zeifman, Appellant

v. Sheryl Diane Michels, K arl E. Hays, and John B arre tt, Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 353 RD JUDICI AL DISTRICT NO. D-1 -GN-0 6-0 0293 0, H ONO RAB LE RHO NDA HURLEY , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Clifford Z eifman appea ls an orde r d en y i ng his motion for sanctions ag ainst appellee s Shery l Diane Michels, Kar l E. Hay s, and J ohn Ba rre tt, and awa

rding eac h appellee $10,000 for attorney ’s fee s incurred i n d efending ag ainst Z eifman’ s motion. We will aff irm the district court’s judg ment.

BACK GR OUND

This appea l is the latest to arise from a series of leg al battles involving Z eifman and Michels that has spanned almost ten y ear s, cost them hundreds of thousands of dollars of leg al fee s, and g ener ated no less than five previous opinions from this court. As rema rkable as it seems now, 1

See Miche ls v. Zeifman , No. 03-0 8 -0 0 2 87-CV, 2009 Tex. App. L EXI S 1017 1 (Tex. App.—Austin Fe b. 12, 20 0 9 , 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 T e x. A p p . L EXI S 11340 (Tex

. App.—Austin Nov. 22, 2006, orig

. proce eding ) (mem. op.); Zeifman v. Miche ls , 212 S.W .3d 582 (Tex. App.—Austin 2006, pet. denied); see also Zeifman v. N owlin , 322 S. W.3d 804 (Tex. App.—Austin 2010, no pet.).Z eifman and Michels once g ot along well enoug h to g et marrie d, as t h ey did in 1992, and they

even had two children toge ther: G.L ., a son, born in 1994, and A.A., a daug hter, born in 1997. But Z eifman and Michels divorce d in 1998, and G.L

. and A.A. have since spent their formative y ear s in the shadow of “extensive and acr imonious litigation” betwee n their pare nts that is ostensibly aimed
at advanc ing eac h pare nt’s perc eption of the children’ s welfa re. See Zeifman v. Miche ls , 229 S.W .3d 460, 461–62 (Tex. App.—Austin 2007, pet. denied).

The final divorce decr ee was based on an irrevoc able mediated settlement ag ree ment fi l ed wi th the district court and incorporated into the decr ee. See Tex. Fa m. Code § 6.60 2

. T h e decr ee named both pare nts as joint manag ing conser vators and, of rele vance here , incorporated the following neg otiated ag ree ment reg arding their y oung children’ s educa tion:

The Court finds that the parties have ag ree d and I T I S THEREFO RE ORDERED that the children shall attend the University of Texas L ab School until such a time as the children are of the ag e to attend elementa ry school. The Court finds that the parties have ag ree d and I T I S THEREFO RE ORDERED t h at , at that time, the children shall attend the public school in the following order of priority for elementa ry school: (1) Br y ker Woods; or (2) Casis; provided, howeve r, that if neither party lives in a residential are a elig ible to attend ei t h er Br y ker Woods or Casis, then the children shall attend elementa

ry school which the children are elig ible to attend, at the highe st rate d school, the highe st rating being deter mined by the annual TAAS testing, using the p re vious y ear ’s ranking s, or shall attend another elementa ry school to which the parties ag ree in writing

. The Court finds that the parties have ag ree d and I T I S THEREFO RE ORDERED that for middle school, the children s h al l attend the middle school into which the children’ s elementa ry s ch o o l fee ds. The Court finds that the parties have ag ree d and I T I S THEREFO RE ORDERED that for high school, the children shall attend the high school i n to which the children’ s middle school fee ds.

The decr ee anticipated that the pare nts might have di s agreements reg arding educational decisions for their children th at t h ey could not resolve, and provided the following mecha nism in t hat eve nt: 2The Court finds that the parties have ag ree d and I T I S THEREFO RE ORDERED that

if the parties cannot ag ree on educat i o n al d ecisions for a child, the parties shall follow the rec ommendations of the person that is the child’s teac her at the time of the decision.

Pursuant to the decree , A. A. , the y oung est child, spent her first-g rade y ear at Br y ker Woods Elementar

y , whi ch is a public school in the Austin I ndepende nt School District (AI SD). I n April 200 4 , t o war d the end of that school y ear , Michels applied for her admission
to St. Andre w’s Episcopal School—a private sch o o l

— for the next school y ear . She did not notify Z eifman of the application until afte r A.A. had been place d on St. Andre w’s waiting list. I n J une 2004, A.A. was acc epted for admission. Z eifman objected to the chang e of schools and insisted that the parties follow the decr ee. Pursuant to the decr ee, Michels consulted with A.A.’s first-g rade
teac her at Br

y ker Woods, who advised Michels that she thought it would be best if A.A. s t ay ed at B ry ker Woods. On J uly 19, 2004, Michels filed a petition t o m o d i fy the pare nt-child rela tionship. After a hear ing, the district court modified the decr ee to provide that Michels have the sole rig ht to make educational decisions for A.A. Z eifman appea led t he dis trict court’s decision to this Court. On August 4, 2006, we rever sed t he dis t ri ct court’s modification order , concluding that there was leg ally insufficient evidenc e to support the district court’s finding that the circ umstances of the child

or of either conser

vator had materia lly and substantially chang ed so as to war rant the modification of the decr ee. See Zeifman v. Miche ls , 212 S.W .3d 582, 596 (Tex. App.—Austin 2006, pet. denied)

. We held that the district court abused its discretion in modify ing the decr ee and rende red judgme nt in favor of

Z eifman.

3On Aug ust 9, 2006, afte r we rele ased our opinion, but befor e mandate issued,

Z eifman wrote Michels a letter indicating his understanding o f our opinion to be that “the joint custody and decision making ag re ed i n the decr ee is fully restore d and the school [A.A.] attends is stipulated by

the same c ourt order .” Acc ording ly , Z eifman wrote tha t he had “ informed Br y kerw oods of [A.A.]’s re-enr ollment and completed the ne cessa ry paper work.” On the next day , one of Michels’s at t o rn ey s, appellee Kar l Hay s, sent a letter to Z eifman’ s attorney at the time, J immy Vaug ht, indicating Michels’s belief that this Court’s opinion was “not eff

ective or enfor cea

ble” until the m andate issued an d t h at t he May 25 order was sti ll in eff ect, leaving Z eifman without authority to re- enroll A.A. at Br y ker Woods. To the extent Z eifman contende d that the parties wer e subject to the divorce decr ee’ s terms, Hay s g ave notice that Michels did not consent to A.A.’s enrollment at Br y ker Woods. Hay s al s o s t at ed that if Z eifman insisted that the divorce decr ee was in eff ect, they would need to arr ang e to obtain a rec ommendation from her curr ent teac her “as soon as possible in light of the impending start of the aca demic y ear .” Vaug ht responde d the same day expressing disag ree ment wi t h Michels’s position and asser ting that the
teac her rec ommendation made in 2004 that A.A. rema in at Br y ker Woods was still eff

ective. Vaug ht
too k the position that, “[b] y enrolling [A.A.] in Br y ker Woods, Mr. Z eifman is adher ing to the

rec ommendation” of he r tea cher “which Ms. Miche ls disreg arde d.” On the same day , Hay s sent a letter to the principal of Br y ker Woods reque sting that the school deny A.A.’s re- enrollment based on the dis t ri ct court’s May 25, 2005 order g ranting Michels the exclusive rig ht to make educational decisions for A.A. (th e o rd er that this Court had reve rsed sever al day s befor e). The letter enclose d a copy of the May 25 order as well as a copy of the “Tr av i s County Standing Orde r Reg arding Children, Property and Conduct of the Parties,”

4which p ro v i d es that children of parties to a pending family law case must not be withdrawn

from the school wher e they are enrolled without the consent of both pare nts. Hay s stated that he was providing the school with these order s beca use it was his understandin g t h at Zeifman was “attempting to reg ister [A.A.] at Br y k er W o o d s , ” but Z eifman “has no authority ” to do so and Michels “objec ts to any eff ort” by Z eifman to enroll A.A. at Br y ker Woods. Hay s did not mention this Court’s opini on reve rsing the May 25 order

. On Aug ust 14, 2006, the day befor e the Br y ker Woods’s school y ear beg an, Michels sued AI SD seeking injunctive relief to preve nt the distri ct from permitting A.A. to be enrolled
at Br y ker Woods or any other AI SD school as the 2006 school y ear beg an. Michel s alleg ed that permitting such enrollment would (1) violate Michels’s exclusive pa renta l r ights (at least until the mandate issued) to make educational decisions on behalf of A.A. and (2) “ac tively assist []

. . . and aid[] and abet[] Clifford Z eifman in the violation of a valid court order ,” the Travis County standing order it ha d previously provided to Br y ker Wood’s principal. Michels did not name Z eifman as a 2 party to this action, nor did she provide notice to him or his attorney on the day the action was filed.

This standing order , applicable to “eve ry divorce suit and ever y suit aff

ecting t h e 2 pare nt-child rela

tionship filed in Travis County ” afte r J anuar y 1, 2005, prohibits parties, “while the lawsuit is pending b ef

o re the court,” from actions including “[d] isrupting or withdrawing the children from the school or day -ca re fac ility wher e the children are prese ntly enrolled, without t h e written ag ree ment of both pare nts or an order of this Court.” See Travis Co. Standing Ord er Reg arding Children, Property and Conduct of the Parties (Tra vis Co. Dist. Clerk’s File No. 121,012 (L ocal Rules and Orde rs)) (ef fec tive J an. 1, 2005). Although the parties’ 1997 divorce decr ee preda ted the standing order , Michels alleg ed that Z eifman had made himself subject to the order by filing a cross-pe tition in a second modification proce eding she had initiated in 2005 conce rning their other c hild. 5On Aug ust 14, Michels obtained an ex parte temporar y restra ining order ag ainst AI SD. Four day s later, on Aug ust 18, Z eifman filed a petition in intervention, motion to dism iss,

3 and motion for sanctions. Z eifman pleade d that he had a justiciable interest in Michels’s new lawsuit

as A.A.’s fathe r an d co -mana g ing conser vator, and as responde nt and counter -petitioner in the ong oing litigation. Z eifman moved to dismiss Michels’s suit as an improper attempt to circ umvent the district court’s jurisdiction over the divorce decr ee and this Court’s jurisdiction over “the issue of [A.A.’s] education.”

Z eifman also soug ht sanctions under rule 13 of the Texas Rules of Civil Procedur e, chapte rs 9 and 10 of the Civil Practice and Remedies Code, and the district court’s inhere nt power . He complained chief

ly that Michels had filed a “fr ivol o u s an d g roundless” separ ate suit ag ainst AI SD, rathe r t han seeking relief in the di v orce and custody case , to circ umvent the j urisdiction of the district c ourt and this Court, and in a manner delibera tely calc ulated to avoid his know ledg e or participa tion for a short, but cr itical, period of time.

A hear ing on Z eifman’ s intervention, motion to dismiss , and motion for sanctions

was set on the third business day there afte r, Wednesday , Aug ust 23. On M o nday , Aug ust 21, Michels filed a rule 11 ag ree ment with AI SD, dated Aug ust 18, wher eby AI SD ag ree d not to permit A.A. to be enrolled at or attend Br y ker Woods “until such time as [AI SD] is prese nted with a final, non-appe alable order expressly authorizing such enrollment and attendanc e,” in return for Michels’s

The tempora

ry restra ining or der r estraine d AI SD from: 3 1. Permitting [A.A.] t o be enr olled at B ry ker Woods Elementar

y School. 2. Permitting [A.A.] t o attend cla sses at B ry ker Woods Elementar

y School. 3. T aking any action which would fac ilitate or permit [A.A.’s] attendanc e at Br y ker Woods Elementar

y School. 6ag ree ment to dismiss her pending suit. Michels filed a notice of non-suit on Aug ust 22 and, on the

d ay o f t h e hear ing, filed a mot ion to strike Zeifma n’s i nterve ntion. After a hearing in which on l y arg ument was prese nted, the district c ourt signe d an “Or der Confirming Nonsuit” and, by separ ate order , g rante d Michels’s motion to strike Z eifman’ s intervention, dismiss ed as moot his motion to dismiss , and denie d his moti on for sa nctions. Z eifman appea led that order to th i s C o u rt

. See Zeifman , 229 S.W .3d at 468. I n a ruling handed d o wn d uring the summer of 2007, we conclude d that the district court abused its discretion in striking his intervention. Id

. Additionally , beca use this err oneous ruling had been

a predic ate for the district court’s ruling on Z eifman’ s sanctions motion, we rema nded the sanctions motion for further proce eding s and instructed the district court to “ca ref ull y consider the fac ts known by Michels at the time she filed suit ag ainst AI SD when deter mining wh et h er s anctions

are appropr iate.” Id

. Howeve r, it would be sever al y ear s befor e Z eifman would return to his pending sanction motion.

On Aug ust 21, 2006, around the same time Michels’s injunction action was being l i t i gat ed in the district court, Z eifman had filed in the rema nded modification suit a “Motio n t o I mplement Third Court of Appea ls J udg ment and Opinion Concerning Educa tional Dec isi o ns for A.A.,” reque sting that ou r o pinion in that case “be immediately implemented and that [he] be authorized to re- enroll [A.A.] at Br y ker Woods Elementar

y School

. . . .” The district court set aside the modification order , but otherwise denied Z eifman’ s reque sted relief , eff ectively returnin g the parties to the terms of the orig inal divorce decr ee. Wanting more, Z eifman then filed a petition f

or writ of mandamus in this Court. We de nied Z eifman’ s petition, e x plaining that our orde r vac ating the prior modification order left “the parties to r esolve a ny disputes conce rning

7A.A.’s education acc ording to their ag ree d-upon mecha nisms in their orig inal divorce decr ee.” In re Zeifman , No. 03-06-00601- CV, 2006 Tex. App. L EXI S 11340, at *2 (Tex. App.—Austin Nov. 22, 2006, orig . proce eding ) (mem. op.)

.

Shortly befor e we handed down our opinion in the injunction action, on J une 8, 2007, Z eifman and Michels signe d ag ree d temporar y orders i n t he modification suit providing that A.A. “shall continue to b e enrolled in and attend exclusively St. Andre w’s .

. . , until and through the time f inal trial of this c ase has been conclude d.” The parties further stipulated “that reg ardle ss of any ruling ” in Z eifman’ s appea l of the order striking his intervention in the AI SD injunction suit, A.A. “shall continue to be enrolled in and attend exclusively St. Andre w’s

. . . during the pendenc y of this suit . . . .”

Z eifman then filed a separ ate lawsuit ag ainst Michels, Hay s, and two other lawy ers who had repr esente d Michels in the litigation ag ainst him, Be cky Be aver and appellee J ohn Ba rre tt, seeking damag es based on their involvement in the injunction action. On the defe ndants’ motions, the district court g rante d summary judgme nt ag ainst all of Z eifman’ s claims. Z eifman appea led that order to this Court, and we aff irmed. See Miche ls v. Zeifman , No. 03-08-00287- CV, 2009 Tex. App. L EXI S 1017, at *2 (Tex. App.—Austin Fe b. 12, 2009, pet. denied) (mem. op.). Z eifman also filed g rieva nces ag ainst the attorney s with the State Ba r of Texas, which wer e summarily dismiss ed. He also filed suit ag ainst an amicus attorney , alleg ing “fr aud” and “g ross neg lige nce” in connec tion with her repr esenta tion of his other child in the divorce proce eding s. The district court g rante d summary judgme nt ag ainst Z eifman and sanctioned him for filing a frivolous laws u i t

. Z eifman appea led this order as well, and we once ag ain aff irmed. See Zeifman v. Nowl i n , 3 2 2 S

. W

. 3d 804, 812 (Tex. App.—Austin 2010, no pet.).

8On S eptember 1, 2010, more than three y ear s afte r t his Court’s opinion rema nding his sanction claims in the injunction suit, Z eifman pursued those cl aim s ag ain. An evidentiar y hear ing was held. Eventually , the district court signe d an order deny ing Z eifman’ s sanctions motion and instead awa

rding $10,000 eac h to H ay s, Ba rre tt, a nd Michels for their attorney ’s fee s incurre d in defe nding the motion. Ze ifman appe aled that or der.

ANALYSIS I n two issues, Z eifman asser ts that the district court abused its discretion in deny ing his motion for sanctions, urg ing that he was entitled to sanctions under, respe ct i v ely , Rule of Civil Procedur e 13 and chapte r 10 of the Civil Practice and Remedies Code. See Tex. R. Civ. P. 13, 215; Tex. Civ. Prac. & Rem. Code §§ 10.001–.005. I n a third issue, he arg ues that the district court abused its discretion in awa rding the appellee s attorney ’s fee s ag ainst him. The appellee s all counter that the district court acte d within its discretion in deny ing Z eifman’ s motion and aw ar d i n g them attorney ’s fee s. Ba

rre tt and Hay s also contend that Z eifman lacke d standing to asser t his motion for sanctions. Fina lly , in a cr oss-point, Hay s reque sts that we impose attorney ’s fe es ag ainst Z eifman for f iling a f rivolous appea l.

Stand ing Be fore we rea ch the merits, we consider the contention of Ba rr et t an d Hay s that Z eifman la cked sta

nding to se ek sanc tions ag ainst them. Standing is a component of subjectmatter jurisdiction, and is revie wed de novo. Ford Motor Co. v. Butnaru , 1 5 7 S

. W

. 3 d 1 4 2 , 147 (Tex. App.—Austin 2005, no pet.). I n response to Z eifman’ s motion for sanctions, Ba rre tt and Hay s h ave eac h interposed pleas to the jurisdiction asser ting that Z eifman had not been a p ar t y t o

9the injunction lawsuit and that AI SD has been the s ole defe ndant when the pleading s that form

the basis of his sanctions motion wer e filed and the TRO was obtained. Be cause rul e 1 3 o f the Rul es o f C i v i l Procedur e and chapte r 10 of the Civil Practice and Remedies Code conce rn appropr iate punis hment for “parties” that file l awsuits without merit, see T ex . R

. C i v. P. 13, 215; Tex. Civ. Prac. & Rem. Code § 10.001, Ba rre tt and Hay s arg ue that only the party ag ainst whom suit is broug ht ma

y seek sanctions. They further maintain that no Texas c ourt has rec og nized the rig ht of a third-par

ty to intervene in a case and seek sanctions for pleading s that wer e not filed ag ainst the intervenor

and conduc t that occur

red prior to the i nterve nor’s appear ance . Hay s likens Z eifman’ s eff orts to obtain sanctions to intervening in a suit and there after as s er t i n g a claim for malicious prosec ution. 4 Z eifman responds that a claim for malicious prosec ution requir es p roof of “the instit ution or continuation of civil proce eding s ag ainst the plaintiff,” while rule 13 and chapter 10 sanctions do not contain simil ar, specific require ments entitling only particula r parties to relief

. See Tex. R. Civ. P. 13 (“I f a pleading , motion or other paper is signe d in violation of this rule, the court, upon m o t i o n or upon its own initiative, afte r notice and hear ing, shall impose an appropr iate sanction.”) , 215; Tex. Civ. Prac. & Rem. Code § 10.002 (“A party may make a motion for sanctions, descr ibing the specific conduct violating Section 10.001.”); see also Texas Bee f Cattl e Co. v. Gree n , 921 S.W .2d 203, 207 (Tex. 1996) (stating elements of malicious prosec ution). Z eifman notes that this Court alre ady deter

mined that he “had a justiciable interest, was a proper party to the suit,” and there fore , could seek sanctions. See Zeifman , 229 S.W .3d at 468 (“Z eifman, as we have deter mined,

I n fac t, Z eifman did asser t a claim of malicious prosec ution ag ainst Hay s, Ba rre tt, and 4 Michels in separ ate proce eding s. See Miche ls , 2009 Tex. App. L EXI S 1017, at *15–19 (holding that Z eifman f ailed to establish first ele ment of malicious prosec ution claim). 10was a proper party

. Michels’s non-suit thus could not defe at or rende r moot his claims for sanctions

and for attorney ’s fe es . . . .”) . Be cause we have pre viously ruled that Z eifman w as a pr oper pa rty to the s uit, and because nothing in the l ang uag e of rule 13 or chapter 10 indicates that intervenor s may not seek relief under those provisions, we conclude that Z ei fm an h ad standing to pursue his motion for sanctions. See id.

Stand ard of review

We revie w a trial court’s awa rd or denial of sanctions for an abuse of discretion. Low v. Henry , 221 S.W .3d 609, 614 (Tex. 2007). I n matters committed to a district court’s discretion, the test is whether the ruling was unrea sonable or arbitra ry or whether the court acte d without ref ere nce to any g uiding rules or principles. Lake Travis Indep. Sch. Dist. v. Lovelace , 243 S.W .3d 244, 249 (Tex. App.—Austin 2007, no pet.). I n deciding whether the denial of sanctions constitutes

an abuse of discretion, we examine the entire rec ord, including the finding s of fac t and conclusions of law, if any wer e made, re v i ew i n g t h e conflicting evidenc e in the light most favor able to the t rial court’s ruling and drawing all rea sonable inferenc es i n favor of t he court’s judgme nt. 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 t h e burden of showing his rig ht to relief

. GTE Commc’n Sys. Corp. v. Tanner , 856 S.W .2d 725, 729 (Tex. 1993).

Sanctions u nder rule 13

Z eifman sought sanctions ag ainst Hay s an d Barre tt under rule 13 for filing sui t for injunctive relief ag ainst AI SD and for doing so without providing notice to Z eifman. Under rule 13, “[t] he signa tures of attorney s o r p ar t i es co nstitut e a cer tificate by them that they have rea d the

11pleading , motion, or other paper ; that to the best of their knowledg e, information, and belief formed

afte r rea sonable inquiry the instrument is not g ro u n d l ess and broug ht in bad faith or g roundless and broug ht for the purpose of hara ssment.” Tex. R. Civ. P. 13. “I f a pl ea d i n g, m o t i o n o r 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 impose an appropr iate sanction available under Rule 215-2b, upon the person who signe d it, a repr esente d party , or both.” Id

. Unde r rule 13, courts may “impose sanctions ag ainst parties filing frivolous claims to deter simil ar conduct in the future and to compensa te the ag g rieve d party by reimbursing the costs incurre d in responding to basele ss pleading s.” Lovelace , 243 S.W .3d
at 2 5 4 (c i t i n g Scott & W hite Mem ’l Hosp. v. Schex nider , 940 S.W .2d 594, 596–97 (Tex. 1996) (per curia m)).

Groundl essness I n order to establish that Michels’s lawsuit ag ainst AI SD was “g roundless,” Z eifman had the burden of showing that the suit had “no basis in law or fac t and [was] not war rante d by g ood faith arg ument for the extension, modification, or reversa l of existi ng law.” T ex. R . Civ. P. 13; see Lovelace , 243 S.W .3d at 254. To deter mine if a pleading was g roundless, the trial court must objectively ask whether the party and counsel made a rea sonable inquiry into the leg al and fac tual basis of the claim at the t i m e t h e s u it was filed. See Loeffler v. Lytle Indep. Sch. Dist ., 211 S.W .3d 331, 348 (T ex . Ap p.—San Antonio 2006, pet. denied). Groundlessne ss is thus more than an ultimate dete rmination that the claim is not a winner. See Emmons v. Purser , 973 S.W .2d 696, 700 (Tex. App.—Austin 1998, no pet.).

Z eifman has arg

ued that Michels’s suit against AI SD was g roundless beca use this Court had alre ady issued an opinion reve rsing the district court’s modification order g iving Michels 12sole c o n tr ol over educational decisions. Our opinion, Z eifman asser ts, reinstated the orig inal divorce decr ee and terminated the eff ect of the Travis County standing order relied upon by M ichels in seeking the injunction. Z eifman contends that Michels’s sole purpose in suing AI SD for injunctive 5 relief was to “e vade the unfavor able judg ment handed dow n by the Third Court of Appe als.” Appellee s respond that, at the time of filing, Michels’s attorney s believed, based on their rese arc h of then-e x isting case law, that an appellate co u rt j u dg ment was not eff ective or enfor cea ble until the appellate proce ss co n cl udes and mandate has issued, thus leaving them

a window of time in which they could advanc e Michels’s interests under the modified decr ee. See Edwards Aquifer Auth. v. Chemical Lime Ltd. , 212 S.W .3d 683, 695–96 (Tex. App.—Austin 2006), rev’ d , 29 1 S.W .3d 392 (Tex. 2009) (“A n appellate court judgme nt is not enfor cea ble in the lower court befor e mandate i s s ues.” (citing In re Long , 984 S.W .2d 623, 625–26 (Tex. 1999) (per curia m))). H ay s descr ibed his rese arc h and conc lusions on this iss ue during the hea ring . We

are compelled to ag ree that, espec ially g iven the state of the case law exis ting at the time, this p o sition reg arding the effec t of our opinion and judgment was not objectively unsupported in law or fa ct or a

g ood-fa ith arg ument for suc h an application or ext ension of then- exis ting law

. I n contending otherwise, Z eifman claims that “Ha y s ag ree d that even if the mandate had not issued, the appellate court’s d ec i sion reinstated the orig inal order .” Howeve r, Z eifman overlooks or mischara cter izes Hay s’s testimony from the sanction s h ea ri ng , which included the following exchang e:

The standing order provided that “ [t ]hi s entire order will ter minate and will no longe r be 5 eff ective once the court signs a final order .” Be cause a final order was signe d in the orig inal divorce decr ee, Z eifman rea sons, our opinion reve rsing the modification order reinstated the prior final order and ter minated the standing order

. 13Q: And was that y our position on that date of Aug ust 10th that the ag ree d final decr ee of divorce in that provision g overne d or t hat t he order that had been overturne d by

the Court of Appe als on May 25th, 2005, gove rned? Hay s: I t was actua lly

—that was the fall-ba ck pos i t i o n . I firmly believe that the mandate did not—beca

use a mandate had not issued, J udg e Meuer er’ s order was still in effec t.

As fo r a leg al or fac tual basis to seek an injunction ag ainst AI SD in particul ar , Z eifman points to Hay s’s testimony reg arding t h e researc h he conducte d prior to seeking an injunction ag ainst AI SD:

I perf ormed the rese arc h to see whether there was leg al authority for being able to file a lawsuit ag ainst a third party to preve nt them from aiding and abetting an o t h er party from violating a court order

. And I found th at t h er e wa s authority that say s y ou can file a lawsuit ag ainst a third party to preve nt 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 ag ainst AI SD.

Altho u gh Zei fm an questions the validity of Hay s’s conclusions and sug g ests that he should have done more rese arc h, he points to no case s th at would persua de us that appellee s lacke d a g ood faith leg al or fac tual basis for seeking relief ag ainst AI SD. See Dike v. Peltier Chevrolet, Inc. , 3 4 3 S

. W

. 3 d 179, 191 n.15 (Tex. App.—Texarkana 2011, no pet.) (sanc tions movant’s arg ument that non-movant “fa il ed to introduce evidenc e sufficie nt to support his claims

. . . or to establish the m erit of the underly ing claim

. . . misapprehe nds the parties’ rela tive burdens” ). B ased on the circ umstances known to the a ppellees a t the time of the filing , and g iven our defe rential revie w of
acts committed to the district court’s d i s cr etion, we cannot conclude that the court abused its discretion in conc luding that the la wsuit was not g roundless.

14Bad faith or purpose of harassm ent Even if the district court had concluded that the AI SD lawsuit was g roundless, Z eifman would al s o have to establish that Hay s and Ba rre tt broug ht the suit in bad faith or for the purpose of hara ssment. Under rule 13, “bad faith” require s the conscious doi n g of a wrong for a dishonest, discriminatory , or m alicious purpose. Robson v. Gilbr eath , 267 S.W .3d 401, 407 (Tex. App.—Austin 2008, pet. denied)

. I n deciding whether a pleading was filed in bad faith or for the purpose of hara ssment, the trial court m u s t co n s ider the acts or omissions of the repr esente d party or counsel, not mere ly the leg al merit of a pleading or motion. Parker v. W alton , 233 S.W .3d 535, 540 (Tex. App.—Houston [14t h Dist.] 2007, no pet.). The party moving fo r s anctions must prove the pleading party ’s s ubjective state of m in d

. T h i el emann v. K

ethan , 371 S.W .3d 286, 294 (Tex. App.—Houston [1s t Dist.] 2012, pet. denied) . Ba d faith does not exi st when a pa rty mere ly exercises bad judgme nt or is neg lige n t

. Id

. A party acts in bad faith if he has been put on notice that his understanding of the fac ts may b e i n co rr ec t and he does not make rea sonable inquiry befor e pursuing the claim further

. Robson , 267 S.W .3d at 407. “Ha rass” is used in a varie ty of leg al
contex ts to descr ibe words, g estures, and actions that tend to annoy , alar m, and verba lly ab u s e 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 pe t.)).

Courts presume that pleadin gs , m o tions, and other paper s are filed in g ood faith, and the party moving for sanctions has the burden o f overc oming this presumption. See Tex. R. Civ. P. 13, 215; Lovelace , 243 S.W .3d at 256 (citing Tanner , 856 S.W .2d at 731). Howeve r, direc t evidenc e of a sanctioned person’ s subjective intent is not require d to rebut the presu m p t i on . See Keith v. Solls , 256 S.W .3d 912, 919 (Tex. App.—Dallas 2008, no pe t.) (citing Schex nider v. Sc ott

15& W

hi t e Me m’ l Ho s

p . , 953 S.W .2d 439, 441 (Tex. App.—Austin 1997, no pet.)). I ntent may be shown by circ umstantial evidenc e as well as direc t evidenc e. Keith , 256 S.W .3d at 919. Under an abuse of discretion standard, the trial court judg es the c redibility of the witnesses and may resolve any conflicting testimony

. Id. ; Keev er v. Finlan , 988 S.W .2d 300, 313–14 (Tex. App.—Dallas 1999, pet. dism’d) (“ The trial c ourt’s choic es among mere ly conflicting piece s of evidence cannot be an abuse of discretion.”)

. Z eifman contends that the rec ord supported a finding that the appellee s “chose to file

a lawsuit ag ainst AI SD with the improper motive of controlling Z eifman’ s actions and to restric t his p ar t i ci p at i o n in his daug hter’s educa tion decisions

. . . , circ umventing the ruling of the appellate
court instead of seeking relief with the family law cou rt o r wo rk ing within the confine s of the orig inal divorce decr ee.” Z eifman further arg ues that the decision to file suit to enjoin AI SD, instead of working with Z eifman to resolve the parties’ disag ree ment pursuant to the divorce decr ee reve als a “ma licious, dishonest and discriminatory purpose c onstitut ing ba d faith.” Hay s testified that he did not file the AI SD lawsuit with the intent to frustra te, annoy , or har m Z eifman. Instead, he explained, “[t] he intent was to preve nt Mr. Z eifman f rom removing [ A. A. ]

. I t was to keep [A.A.] in the school that she had been in for the previous two y ea rs an d

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

n.” Hay s further testified t hat, based on the evidence available to him, he “ha d a clear indication” that Z eifman was planning to withdraw A. A. fr o m her curr ent school and that his attorney would not stop Z eifman from acting

. Z eifman admits that he was “pre pare d to enroll A.A. in Br y ker Woods,” but asser

ts that as of Aug ust 14, he had not actua lly done so, nor had he “shown any signs of self-he lp other than instigating a letter-w riting battle betwee n attorney s.” I n a letter to

16Miche ls, howeve r, Z eifman stated that he had “informe d Br y kerw oods of [A.A.’s] re- enrollment and completed the ne cessa

ry paper work.” Reg ardin g Z e if

ma n’s complaint that the appellee s wer e attempting to circ umvent this C ourt’s ruling , the appellee s maintain that they believed Z eifman lacke d authority to unilateral l y enroll A.A. in Br

y ker Woods for at least three rea sons: (1) t h e m an d at e on this Court’s decision

reve rsing the modification order had not y et issued; (2) the Travis County standing order prohibited Z eifman fr o m wi t h d raw ing A.A. from her curr ent school without Michels’s ag ree ment or a court order ; and (3) if the divorce d ec re e wer e ag ain in eff ect, which they did not believe was the case , it would still require Z eifman and Michels to follow the rec ommendation of her then-c urre nt teac her
at St. Andre w’s. Thus, they arg ue that t he injunction mere ly prese rved the status quo. They also
note t hat we later rejec ted Zeifma n’s belief that he was entitled to enroll [ A.A.] i n Br y k er Woods over Michels’s objection. See In re Z eifman , 2006 T ex. App. L EXI S 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 y et enf orce able. Z eifman also complains that the appellee s failed to provide notice to him as require d under the orig inal divorce decr ee. Howeve r, at the time, the parties did not ag ree about whether or not the orig inal divorce decr ee was in eff ect, and there fore whether or n o t n o t i ce p u rs uant to that decr ee would h av e b een require d. Hay s further testified t hat he did not believe any of hi s actions violated the divorc e dec ree : Q: I n y our opinion, does seeking a temporar y injunction and not g iving the other pare nt notice, as y ou did in this case , violate the ag ree d decr ee of divorce and notice provisions containe d in it. Hay s: No, it does not. 17Zei fm an al so complains that the appellee s filed suit with knowledg e that his

attorney s would be out of town. Specifica lly , Z e if ma n ’ s attorney had notified Michels’s attorney that h e would be out of town from Aug ust 14–17, 2006 to attend a family law confe re n ce . Ho we v er , Michels’s attorney s obtained a TRO agai n s t AISD on Aug ust 14, 2006. The appellee s point out that Z eifman notified Michels less than a wee k befor e the new sch o o l y ear was set to start on Aug ust 15 that h e h ad “i nformed Br y kerw oods of [A.A.’s] re- enrollment and completed the

nece ssary paper

work.” Acc ording ly , the appellee s arg ue that the district court could rea sonably have conclude d that the appellee s acte d when they did, not to evade a challeng e by Z eifman’ s attorney s, but beca use the school y ear

was a bout to beg in. Although a differ ent orig inal fac t-finder might have rea ched a differ ent outcome on this rec ord, that is not the standard under which this Court is r equire d to revie w the district court’s decision. Viewing the evidenc e in the light most favor able to the district court’s ruling and draw ing all rea sonable infere nces in favor of that ruli n g, as we m u st, we cannot conclude that the district court abused its discretion in its deter mi nation of appellee s’ subjective state of mind, concluding the injunction action was not filed in bad faith or with the intent to hara ss Z eifman. We

overr ule Z eifman’ s first issue. See Lovelace , 243 S.W .3d at 254–55 (finding no abuse of discretion in failing to awa

rd sanctions even though suit was statutorily barr ed); see also Manning v. Enbridge Pipelines (

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

no abuse o f d i s cr eti on in trial court’s ref usal to impose sanctions and noting that “[c]onsi dering the trial proce eding s, the trial court is in a better position than this Court to decide whether to impose sanctions”)

.

18Sanctions u nder chapter 10 Z eifman also soug ht sanctions for the same conduct un d er chapte r 10 of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code §§ 10.001–.005. That chapte r provides as f

ollows:

The signing of a pleading or motion as require d by the Texas Rules of Civil Procedur e co nstitut es a cer tificate by the signa tory that to the signa tory ’s best knowledg e, informa tion, and belief, f ormed a fter r easona

ble inquiry : (1) the pleading or motion is not being prese nted for any improper purpose, including to hara ss or to cause unnece ssary delay or needle ss incre ase in the cost of litigation; (2) eac h claim, defe nse, or other leg al contention in the pleading or motion is war rante d by exis ting law or by a nonfrivolous arg u m ent for the extension, modification, or re versa l of exist ing la w or the e stablishment of new law ; (3) eac h alleg ation or other fact u al co n tention in the pleading or motion has evidentiar y support or, for a spec ifically identified alleg ation or fa ctual conte ntion, is likely to have evid en t i ar y support afte r a rea sonable opportunity for further investiga tion or discovery ; and (4) eac h denial in the pleading or motion of a fac tual contention is war rante d on the ev i d en ce o r, for a specific ally identified denial, is rea sonably based on a lack o f information or be lief.

Id

. § 10.001. Awar ds of attorney ’s fee s under the Civil Practice and R em ed i es Code require essentially the same finding s as does rule 13. Lov el a ce , 243 S.W .3d at 256. Although rule 13 require s a party to have filed a g roundless pleading broug ht in bad faith or a g roundless pleading for hara ssment, sanctions under chapte r 10 can be awa rde d i f t he suit was filed for an improper purpose, even if the suit was not frivolous. See Alpert v. Crain, Caton & Jame s, P.C. , 178 S.W .3d 398, 411–12 (Tex. App.—Houston [1st Dist.] 2005, pet. denied)

. Howeve r, having alre ady decide d
t h at t h e dis trict court did not abuse its discretion in concluding that the l awsuit ag ainst AI SD was

19n o t g roundless, frivolous, broug ht in bad faith, or broug ht for the purpose of hara ssm en t , we

simil arly hold that the district court did not abuse its discretion in ref using to awa

rd sanctions under this provision of the Civil Practice and Remedies Code. See Lovelace , 243 S.W .3d at 257 (holding 6 trial court did not abuse its d iscretion in ref using to awa

rd sanctions under chapte r 10 afte r concluding that suit was not “g roundless, frivolous, broug ht in bad faith or broug ht for the purpose of har assment” f

or purpose of sanc tions under rule 13)

. We overrule Z eifman’ s second issue.

Award of

attor ney’s fees I n a third issue, Z eifman arg ues that the district court err ed in a war ding $10,000 to 7

eac h of the appellee s in attorney ’s fee s for succe ssfully defe nding a g ainst his motion for sanctions pursuant to cha

pter 10 of the Civil Practice and Remedie s Code, which provide s as follows:

The court may aw ar d t o a party preva iling on a motion under this section the rea sonable expenses an d att orney ’s fee s incurre d in prese nting or opposing the motion, and if no due diligenc e is shown the court may awa rd to the preva iling party all costs for inconvenienc e, hara ssment, an d out-of-poc ket expenses incurre d or cause d by the subject litiga tion.

Tex. Ci v. Prac. & Rem. Code § 10.002(c)

.

Z eifman re l i es on Law Offices of W endell Turley, P.C. v. French to support his claim 6 for sanctions under chapte r 10. 164 S.W .3d 487, 491–92 (Tex. App.—Dallas 2005, no pet.). I n the case , the Dallas Court of Appea ls aff irmed a trial court’s order imposing sanctions ag ainst an attorney that filed duplicative proce eding s in tw o s ep ara te courts. Id

. at 489. The Dallas Court co ncluded that the trial court “ could have deter mined appellants filed the Dallas laws u i t n o t t o protec t their leg al interests, but to improperly circ umvent an imminent ruling from the Tarr ant County trial court poised to f inally dispose of the same leg al issues.” Id

. at 492 (empha sis added)

. By the same token, afte r a revie w of the evidenc e befor e it, we have conclude d that the district court could have conclude d that the appe llees did not file the AI SD lawsuit for an imprope r purpose . Michels and Hay s sug g est that Z eifman may have waived this issue beca use he did not list 7 it as a separ ate “issue prese nted” in his brief and, they asser t, he provided insufficient leg al authority to support his arg ument. See Tex. R. App. P. 38.1(i ). As Z eifman notes, “[t] he statement of an issue or point will be tre ated as cover ing ever y subsidiary question that is f airly included.” See id

. R. 38.1(f). We conc lude that Z eifman suf ficiently briefe d this iss ue. 20Z eifman does not challeng e the amount of attorney ’s fee s the district court

awa rded—in fac t, he stipulated below that $10,000 was a rea so n ab l e and nece ssary amount of
at t orney ’s fee s for eac h of the appellee s—but instead asser ts that the district court abused i t s discretion in aw ar d i n g t h e appellee s attorney ’s fee s at all. Other than complaining that the d istrict court’s awa

rd was predic ated on an err oneous denial of his sanctions motion ag ain s t appellee s, an as s ertion we have reje cted above, Z eifman’ s centr al complaint is that the 8 district court’s awa

rd penalized him for t ak i n g t h e exact actions which he believes this Court instructed him to do. Z eifman points to the following st at em en t i n our opinion overturning the district court’s ruling striking his petition in intervention:

I n light of our observa tion that Michels’s conduc t a s alleg ed by Z eifman “is indeed disturbing,” the di strict court on rema nd should car efully consider the fac ts known by Michels at the time she filed suit ag ainst AI SD when deter mining whether sanctions ar e appr opriate. Zeifman , 229 S.W .3d at 4 6 8

. Be cause this Court specific ally instructed the district court to “ca ref ully consider the fac ts known by Michels,” Z eifman maintains that an aw ard of Michels’s attorney ’s fe es would be pa rticularly inappropria te. As the appellee s poin t o u t , this Court’s statement did not ref er to Michels’s conduct, but rathe r to Michels’s conduct as alleged by Zeifman

. The merits of Z eifman’ s sanction motion wer e not befor e this Court at that time. This Court did not rende r judgme nt on the sanctions

By the same token, Z eifman conten d s that the district court err ed in not awa rding him 8 his rea sonable and nece ssary attorney ’s fe es i n curr ed in connec tion with “re sponding to basele ss proceed i n gs ” an d to “dete r simil ar conduct in the future.” Be cause we have conclude d that the district court did not abuse its discretion in deny ing his motion for sanctions, it simil arly did not err in refusing to awar d him attorney ’s fe es. 21issue, but instead remanded and instructed th e d i s t ri ct co urt to car efully consider the matter. The

district court did so and conc luded that the evide nce did not support the imposition of sanctions.

Thoug h the term “pre vailing party ” is not exp l i ci tly define d in chapte r 10, we conclude that by succe ssfully defe nding ag ainst Z eifman’ s sanction s motion, eac h of the appellee s wer e “pre vailing parties.” See TGS-NOPEC Geophy sical Co. v. Combs , 340 S.W .3d 432, 439 (Tex. 2011) (“Undef in ed t er m s in a st atute are ty pically g iven t heir ordinary meaning

. . . .”). Z eifman does not dispute that the appellee s wer e preva iling parties within the meaning of the statute and he previously stipulated that their reque sted fee s wer e rea sonable and nece ssary . Acc ording ly ,
we conclude the district court did not abuse its discretion in awa rding attorney ’s fee s to the appellee s for suc cessf

ully opposing Z eifman’ s motion for sanctions. We overr ule his third issue.
Hays’s cross-point

I n a cross-point, Hay s reque sts that we impo s e d a ma g e s a g a in s t Z e if

man under rule 45 of our appellate proce dure rules for filing a frivolous appea l. See Tex. R. App. P. 45 (“I f the court of appea ls deter

mines that an appea l is fr i v o l ous, it may —on motion of any party or on its

own initiative, afte r notice and a rea sonable opportunity for response —awa rd eac h preva iling party just damag es.”)

. “The quest ion of whether to g rant sanctions is a matter of discretion, which

we ex erc ise with prudenc e and caution, and only afte r caref ul delibera tion.” Jack

son v. Hoffman , 312 S.W .3d 146, 156 (Tex. A pp.—Houston [14t h Dist.] 2010, no pet.). We will impose sanctions only in circ umstances that are truly eg reg ious. Jack son , 312 S.W .3d at 156

. To deter mine whether

an appea l is frivolous, we “look at the rec ord from the viewpoint of the advoca te and decide whether he had rea sonable g rounds to believe the case could be reve rsed.” Smith v. Brown , 51 S.W .3d 376, 381 (Tex. App.—Houston [1s t Dist.] 2001, pet. denied)

. 22Whil e Z eifman was ultimately unsucce ssf u l i n this appea l, we conclude that sanctions ar e not appr opriate he re. See E aster v. Provide nce Lloyds Ins. Co. , 17 S.W .3d 788, 792 (Tex. App.—Austin 2000, pet. denied) (sanc tions unwar rante d ag ainst ultimately unsucce ssful party when she had rea sonable expectation of reve rsal and there had been no showing that sh e p u rsued appea l in bad faith). We deny Hay s’s motion.

CONCLUSION Having overr

uled eac h of issues pre sented, we aff irm the district c ourt’s judgme nt.

__________________________________________ Bob Pembe rton, J ustice Be fore J ustices Pury ear , Pemberton, and F ield Affir med Filed: Aug ust 22, 2013

23