Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-13-00038-CV

IN THE ESTATE OF Ramiro AGUILAR Jr., Deceased

From the Probate Court No. 2, Bexar County, Texas

Trial Court No. 2012-PC-2800

Honorable Tom Rickhoff, Judge Presiding

Opinion by: Marialyn Barnard, Justice

Sitting: Catherine Stone, Chief Justice

Marialyn Barnard, Justice

Patricia O. Alvarez, Justice

Delivered and Filed: February 19, 2014

AFFIRMED IN PART, REVERSED AND REMANDED IN PART

This appeal arises from three probate court orders, namely: (1) an October 12, 2012 transfer 

order; (2) a January 11, 2013 order setting aside an out-of-county default judgment, dismissing the 

out-of-county case, and granting sanctions; and (3) a January 28, 2013 order granting sanctions. 

Appellant Anthony C. Aguilar raises fourteen issues on appeal, contending, in essence: (1) the 

probate court improperly transferred a case from the 327th Judicial District Court of El Paso 

County (“the 327th District Court case”) to the probate court; (2) section 402.001 of the Texas 

Estates Code deprived the probate court of jurisdiction to enter the orders;1 and (3) the probate 

1 Effective January 1, 2014, the Texas Probate Code is repealed and recodified in the Texas Estates Code. See Acts 

2009, 81st Leg., ch. 680, § 1 et seq.; Acts 2011, 82d Leg., ch. 823, § 1 et seq.; Acts 2011, 82d Leg., ch. 1338, § 1 et 

seq. The new codification is “without substantive change” and its purpose is to make the law “more accessible and 

understandable.” See TEX.EST.CODE ANN. § 21.001. We will refer to the Estates Code and its corresponding sections, 

when possible, where the parties and probate court had originally referred to the Probate Code.

 
04-13-00038-CV

court improperly sanctioned Aguilar.2 We: (1) affirm the order transferring the 327th District 

Court case to the probate court, (2) declare the default judgment rendered by the 327th District 

Court of El Paso County void, (3) reverse and remand the probate court’s January 11, 2013 

sanctions order for further proceedings consistent with this court’s opinion, and (4) affirm the 

probate court’s January 28, 2013 sanctions order. 

BACKGROUND

The underlying dispute between Aguilar and Morales, who are siblings, is subject to a 

rather complicated timeline of events. The parties’ father, Ramiro Aguilar Jr., died in the summer 

of 2012, and Aguilar, on behalf of Morales, filed an application to probate their father’s will with 

the probate court on August 31, 2012.3

 The probate court admitted the will to probate, issued 

letters testamentary, and appointed Morales independent executrix on September 17, 2012.

Two days later, on September 19, 2012, Aguilar, allegedly as the personal representative 

of Ramiro’s estate, sued Morales in El Paso County, the 327th District Court, for breach of 

fiduciary duty. The petition claimed Morales, acting under a power of attorney, had mismanaged 

their father’s real property and misappropriated his personal property before his death. The 

petition sought to recover damages for Ramiro’s estate resulting from Morales’s allegedly 

wrongful acts. 

On October 5, 2012, Morales filed a motion in the probate court, asking the probate court 

to transfer the 327th District Court case to the probate court pursuant to section 34.001 of the 

Estates Code. The probate court granted the motion on October 10, 2012. Although receipt and 

notice is disputed, the record reflects Morales mailed a copy of the section 34.001 transfer order 

2 Aguilar’s fourteen issues are argued as “combined issues” split into two groups in his brief. The fourteen issues 

overlap and are best addressed by discussing the three core contentions. 

3 Although Aguilar, a licensed attorney, initially represented Morales in filing the will for probate, Morales retained 

new counsel prior to her appointment as independent executrix.

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to the El Paso District Court Civil Division, and the order was received by the 327th District Court 

on October 12, 2012.4

 Despite Morales’s attempt to notify the 327th District Court of the transfer, 

that court entered a default judgment against Morales on October 29, 2012.5

Because the 327th District Court case had been transferred to the probate court, Morales 

filed a Motion to Set Aside Default Judgment and Motion for Sanctions with the probate court on 

November 14, 2012. In the motion, Morales asked the probate court to set aside the default 

judgment and sanction Aguilar under Rule 13 for filing frivolous pleadings. The probate court 

held a hearing on this motion on December 5, 2012, and sent a letter to the 327th District Court 

explaining the possible confusion regarding the section 34.001 transfer order and subsequent 

default judgment.6 

On December 12, 2012, prior to any ruling by the probate court on the pending motion, 

Aguilar, individually and on behalf of his brother Michael Aguilar, filed a second lawsuit against 

Morales. This time, Aguilar filed suit in El Paso County Court at Law No. 6 (“the County Court 

at Law case”). Aguilar’s petition in the County Court at Law case was substantially similar to the 

petition filed in the 327th District Court case, but added a wrongful death claim against Morales 

4 After oral argument, Aguilar filed a motion requesting that we take judicial notice of the certified records from the 

327th District Court of El Paso that were attached to the motion. We rendered an order on November 25, 2013, 

carrying the motion with the appeal. These certified records reflect the 327th District Court received the probate 

court’s order to transfer the case, but did not take any formal action after receipt of the order. We grant Aguilar’s 

motion and take judicial notice of the records. See Freedom Commc’ns Inc. v. Coronado, 372 S.W.3d 621, 623 (Tex. 

2012) (per curiam); TEX. R. EVID. 201(b), (d). As such, we take judicial notice of the fact the 327th District Court 

received the probate court’s transfer order but did not formally act on it. 5 Morales filed an answer to the 327th District Court case in the probate court on October 12, 2012.

6 This letter was the subject of a motion to recuse the probate judge. Aguilar uses the letter as the basis for an issue 

on appeal, contending “Judge Rickhoff had no authority to submit a letter to Judge Chew directing her to disregard or 

set aside the final judgment rendered in the 327th Judicial District Court.” Aguilar has failed to cite any applicable 

authority or provide substantive analysis on this issue, and we have no duty to brief the issue for him. Huey v. Huey, 

200 S.W.3d 851, 854 (Tex. App.—Dallas 2006, no pet.). “Rule 38.1(i) of the Texas Rules of Appellate Procedure 

requires an appellant’s brief to contain a clear and concise argument for the contentions made.” Marin Real Estate 

Partners, L.P. v. Vogt, 373 S.W.3d 57, 75 (Tex. App.—San Antonio 2011, no pet.). The failure to include a proper 

argument supported by applicable authority waives the issue. Eastin v. Dial, 288 S.W.3d 491, 501 (Tex. App.—San 

Antonio 2009, pet. denied). Accordingly, we hold Aguilar has waived appellate review with regard to the issues he 

raises on appeal relating to the motion to recuse. Id.; see Vogt, 373 S.W.3d at 75; TEX. R. APP. P. 38.1(i). 

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and named Morales’s husband and children as co-defendants. In response, Morales filed another 

motion in the probate court, asking that the County Court at Law case be transferred to the probate 

court. Morales included another request for sanctions in her transfer motion. 

In the midst of the litigation involving the El Paso courts, Morales filed an Inventory, 

Appraisement, and List of Claims with the probate court on December 14, 2012. On December 

26, 2012, the probate court entered an order approving the Inventory, Appraisement, and List of 

Claims. 

After the inventory was approved by the probate court and the estate entered independent 

administration, the probate court entered the other two orders challenged in this appeal. On 

January 11, 2013, the probate court signed an order setting aside the default judgment entered by 

the 327th District Court in El Paso, dismissing the 327th District Court case, and sanctioning 

Aguilar for filing frivolous pleadings in the case. On January 28, 2013, the probate court signed 

an order granting Morales’s request for monetary sanctions against Aguilar for filing frivolous 

pleadings in the County Court at Law case.7

 Both orders directed Morales, as independent 

executrix, to pay the sanctions and allocate the amount “as an advancement to the share otherwise 

distributable to Anthony Cleve Aguilar as a beneficiary” of his father’s estate. 

After Aguilar perfected this appeal and filed his brief, Morales filed a motion in this court 

to strike Aguilar’s brief and dismiss the appeal. In the motion, Morales argued we should strike 

the brief because Aguilar was presenting arguments on behalf of the estate and had no authority to 

do so. Morales also claimed we should dismiss the appeal because there was no final judgment 

from which Aguilar could appeal. In response to Morales’s motion we entered an order on August 

7 Aguilar non-suited the County Court at Law case before the probate court acted on Morales’s motion to transfer.

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21, 2013, striking all of the arguments made by Aguilar on behalf of the estate.8 However, we 

denied Morales’s request that we dismiss the appeal, holding the probate court’s orders were final 

for purposes of appeal. We determined the orders constitute exceptions to the one final judgment 

rule under the Texas Supreme Court’s decision in De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 

2006). 

ANALYSIS

Although Aguilar formats his complaints as fourteen separate issues, they can be 

condensed into three complaints: (1) the probate court erred when it transferred the 327th District 

Court case to the probate court pursuant to section 34.001 of the Estates Code; (2) the probate 

court was without jurisdiction to render the January orders because independent administration 

commenced before the orders were rendered; and (3) the probate court erred in granting Rule 13 

sanctions against Aguilar.

A. Section 34.001 Transfer Order

Aguilar contends the probate court’s section 34.001 transfer order was erroneous, arguing: 

(1) the subject of the 327th District Court case was not a “probate proceeding” governed by section 

34.001; and (2) even if the 327th District Court case is within the scope of the section 34.001 

transfer statute, the mandatory venue provision in section 15.011 of the Texas Civil Practice and 

Remedies Code, which concerns damage to real property, controls.

1. Transfer Under Section 34.001

Section 34.001 of the Texas Estates Code provides that a judge of a statutory probate court 

may transfer to itself from a district court “a cause of action related to a probate proceeding pending 

8 In the 327th District Court case, Aguilar purported to sue on behalf of the Estate of Ramiro Aguilar Jr. In a recent 

mandamus proceeding, we held Aguilar could not represent the estate, but could only represent himself pro se because 

he previously represented Morales in the underlying probate proceeding. See In re Aguilar, No. 04-13-00425-CV, 

2013 WL 4501435, at *4 (Tex. App.—San Antonio Aug. 21, 2013, orig. proceeding) (mem. op).

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in the statutory probate court or a cause of action in which a personal representative of an estate 

pending in the statutory probate court is a party and may consolidate the transferred cause of action 

with the other proceedings in the statutory probate court relating to that estate.” TEX. EST. CODE.

ANN. § 34.001(a) (West 2014) (emphasis added). Therefore, transfer is proper where either (1) 

the cause of action relates to a probate proceeding in the probate court, or (2) a personal 

representative of the pending estate is a party to suit. See id.

Here, the petition Aguilar filed in the 327th District Court case supports a transfer to the 

probate court under section 34.001 because Aguilar, attempting to act as representative of the 

Estate of Ramiro Aguilar Jr., sued Morales to recover damages on behalf of the estate. As such, 

Aguilar’s cause of action purported to be a claim brought by a personal representative on behalf 

of the estate and therefore, related to a probate proceeding in the probate court. See TEX. EST.

CODE ANN. § 31.002(a)(3) (“[A] matter related to a probate proceeding includes: . . . (3) a claim 

brought by a personal representative on behalf of an estate.”). Accordingly, we hold the probate 

court’s transfer was proper. See id. § 34.001(a). 

2. Mandatory Venue Under Section 15.011

Aguilar next contends the transfer under section 34.001 was improper in light of the 

mandatory venue provision in section 15.011 of the Texas Civil Practice and Remedies Code. 

Aguilar suggests venue for the 327th District Court case is governed by section 15.011 of the Texas 

Civil Practice and Remedies Code because he seeks, in part, to recover damages for Morales’s 

mismanagement of real property in El Paso County. We disagree. 

Section 15.011 is a mandatory venue provision mandating that actions for recovery of 

damages to real property be brought in the county in which all or part of the property is located. 

TEX. CIV. PRAC. & REM. CODE ANN. § 15.011 (West 2002) (emphasis added). When making a 

venue determination under section 15.011, a court considers the “true nature” of the dispute. In re 

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Kerr, 293 S.W.3d 353, 356 (Tex. App.—Beaumont 2009, orig. proceeding [mand. denied]); 

accord Airvantage, L.L.C. v. TBAN Properties #1, L.T.D., 269 S.W.3d 254, 258 (Tex. App.—

Dallas 2008, no pet.). In determining the true nature of a dispute, courts look to the pleadings and 

relief sought. Renwar Oil Corp. v. Lancaster, 276 S.W.2d 774, 775 (Tex. 1955); Kerr, 293 S.W.2d 

at 356. Therefore, we look to Aguilar’s petition in the 327th District Court case to determine 

whether section 15.011 applies.

Although Aguilar’s petition in the 327th District Court alleges Morales failed to report 

income and expenses from the real property in El Paso County to the Internal Revenue Service 

and requests appropriate damages, it also accuses Morales of widespread fraud while acting under 

a power of attorney. Aguilar’s petition sought financial accountings of Morales’s management of 

Ramiro’s real and personal property, actual damages, and punitive damages for her alleged fraud. 

Further, Aguilar’s petition reserved “the right to join other parties who, based upon information 

and belief, have been unjustly enriched by Morales’s misappropriation of monies including, but 

not limited to, her husband, children, grandchildren and the law firm retained by her.” 

After considering the contents of the pleadings, we hold the true purpose of the 327th 

District Court case was to recover damages to Ramiro’s estate caused by Morales’s alleged fraud 

while executing the fiduciary duties she owed under a power of attorney. Although Aguilar’s 

petition included language suggesting the purpose of the lawsuit was to recover damages to real 

property as covered by section 15.011, mandatory venue provisions may not be evaded or invoked 

merely by artful pleading. See Kerr, 293 S.W.3d at 358. Here, although the lawsuit contained 

allegations relating to the real property in El Paso County, those allegations did not seek damages 

to the real property and do not mask the lawsuit’s true purpose of recovering monies that would 

be part of the estate but for Morales’s alleged breach of fiduciary duty and fraud. Accordingly, 

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we hold mandatory venue under section 15.011 does not apply. Thus, the trial court did not err in 

transferring the 327th District Court case pursuant to section 34.001.9

B. Default Judgment Void

Because we affirm the probate court’s section 34.001 transfer order, the default judgment 

rendered by the 327th Judicial District Court of El Paso County Texas is void. We may raise the 

issue of a trial court’s jurisdiction sua sponte. Dillon v. Waggoner, No. 04-12-00230-CV, 2012 

WL 6029915, at *1 (Tex. App.—San Antonio Dec. 5, 2012, no pet.) (mem. op); Miranda v. Byles, 

390 S.W.3d 543, 551 (Tex. App.—Houston [1st Dist.] 2012, pet. denied); see M.O. Dental Lab v. 

Rape, 139 S.W.3d 671, 673 (Tex. 2004) (holding appellate court is obligated to review sua sponte

issues affecting jurisdiction). Here, the transfer to the trial court deprived the 327th Judicial 

District Court of jurisdiction over Aguilar’s claims against Morales in the 327th District Court 

case. In the absence of jurisdiction, the 327th District Court had no power to enter a default 

judgment. See City of DeSoto v. White, 288 S.W.3d 389, 393 (Tex. 2009). Accordingly, the default 

judgment is void. See In re Mask, 198 S.W.3d 231, 234 (Tex. App.—San Antonio 2006, orig. 

proceeding).

C. Effect of Independent Administration Under Estates Code § 402.001

Relying on section 402.001 of the Estates Code, Aguilar argues the trial court lacked 

jurisdiction10 to act in the underlying proceedings because of the language in Ramiro’s will under 

9 Morales argues a section 34.001 transfer is not subject to mandatory venue provisions. Morales directs the court to 

a number of decisions supporting the notion that section 34.001 is a jurisdictional statute, and is therefore not subject 

to venue provisions. See In re Houston Nw. Partners, Ltd., 98 S.W.3d 777, 780 (Tex. App.—Austin 2003, orig. 

proceeding); In re Ramsey, 28 S.W.3d 58, 61 (Tex. App.—Texarkana 2000, orig. proceeding); Henry v. LaGrone, 842 

S.W.2d 324, 327 (Tex. App.—Amarillo 1993, orig. proceeding). However, Morales’s argument was expressly 

rejected by the supreme court in Gonzalez v. Reliant Energy, Inc., 159 S.W.3d 615, 621–22 (Tex. 2005), and is at odds 

with the language in section 34.001(b) itself. See TEX. EST. CODE ANN. §34.001(b) (codifying that proper venue by 

or against personal representative for personal injury, death, or property damages is determined by Texas Civil Practice 

and Remedies Code section 15.007). 10 In his brief, Aguilar uses the terms “authority” and “jurisdiction” interchangeably.

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the section entitled “Limitation of Court Supervision.” Whether a trial court has subject matter 

jurisdiction is a matter we review de novo. Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 

217, 228 (Tex. 2004); Tex. Nat. Resource Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 

(Tex. 2002). 

A person capable of making a will may provide in the will that no other action shall be had 

in the probate court in relation to the settlement of the estate other than the probating and recording 

of the will, and the return of an inventory, appraisement, and list of claims of his or her estate. 

TEX. EST. CODE ANN. § 401.001(a). This is known as independent administration. See id. The 

purpose of independent administration is to free the independent executor from judicial 

supervision by the probate court and to effect the distribution of an estate with minimal costs and 

delays. Sweeney v. Sweeney, 668 S.W.2d 909, 910 (Tex. App.—Houston [14th Dist.] 1984, no 

writ); Burke v. Satterfield, 525 S.W.2d 950, 955 (Tex. 1975). The Estates Code codifies this 

purpose by directing that after an independent executor is appointed and the inventory has been 

approved, “further action of any nature may not be had in the probate court except where this title 

specifically and explicitly provides for some action in the court.” TEX. EST. CODE ANN. § 402.001. 

The record reflects that Ramiro’s will provided for independent administration of his estate. 

Aguilar contends section 402.001 deprived the probate court of jurisdiction over the 327th 

District Court case as well as the authority to impose sanctions in relation to the pleadings in the 

County Court at Law case.11 We disagree. Admittedly, section 402.001 limits the probate court’s 

jurisdiction to judicially supervise an independent executor’s administration of the estate. See id.; 

11 Aguilar also argues section 402.001 applies to the probate court’s section 34.001 transfer order. The transfer of the 

327th District Court case occurred on October 12, 2012, long before the probate court approved the inventory, 

appraisement, and list of claims for the estate on December 26, 2012. Therefore, section 402.001 could not apply to 

the transfer order as it was entered prior to the probate court’s approval of the inventory, appraisement, and list of 

claims, which is required to trigger the statute’s independent administration protections. See TEX. EST. CODE ANN.

§ 402.001.

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Sweeney, 668 S.W.2d at 910. However, as this court has previously held, section 402.001 “does 

not deny the probate court’s jurisdiction over a contested claim against an estate served by an 

independent executor.” Estate of Kuenstler v. Trevino, 836 S.W.2d 715, 718 (Tex. App.—San 

Antonio 1992, no writ.). Similarly, section 402.001 does not divest the probate court of 

jurisdiction over a claim brought on behalf of the estate. See id. 

1. Jurisdiction – 327th District Court case:

The probate court’s jurisdiction over the 327th District Court case, a claim brought on 

behalf of the estate by Aguilar as its alleged personal representative, is grounded in the probate 

court’s general jurisdiction over matters relating to Ramiro’s estate, which was pending in the 

probate court. See TEX. EST. CODE ANN. § 32.001(a) (“The court exercising original probate 

jurisdiction also has jurisdiction of all matters related to the probate proceeding as specified in 

Section 31.002 [of the Estates Code].” (emphasis added)). Aguilar’s claim as personal 

representative of Ramiro’s estate is, by definition, a matter related to a probate proceeding because 

it is “a claim brought by a personal representative on behalf of an estate.” TEX. EST. CODE ANN.

§ 31.001(a)(3). Therefore, the probate court had jurisdiction under section 32.001 to enter orders 

relating to the 327th District Court case, including the sanction orders, because it was a matter 

relating to Ramiro’s estate. And, as noted above, the onset of independent administration did not 

divest the probate court of its jurisdiction. See Estate of Kuenstler, 836 S.W.2d at 718. 

The probate court’s general jurisdiction over the 327th District Court case was not 

restricted by section 402.001 because it was not a claim based on the independent administrator’s 

administration of the estate. Such a claim would fall subject to section 402.001’s jurisdictional 

limitations because it would call for impermissible supervision by the probate court contrary to the 

purpose of independent administration. See Sweeney, 668 S.W.2d at 910. Here, however, 

Aguilar’s claim in the 327th District Court case did not call for court supervision, but rather 

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assistance in recovering assets of the estate that would in turn be subject to distribution by the 

independent administrator of the estate, free of probate court supervision and expense. This type 

of claim on behalf of the estate falls within the general jurisdiction of the probate court and is not 

subject to the restrictions of section 402.001. See Estate of Kuenstler, 836 S.W.2d at 718. 

Accordingly, we overrule Aguilar’s section 402.001 jurisdictional complaint with regard to the 

orders entered by the probate court in relation to the 327th District Court case.

2. Jurisdiction – County Court at Law Case:

On December 18, 2012, Morales filed a motion as independent executrix asking the probate 

court to transfer the County Court at Law case to the probate court. She also asked the probate 

court to sanction Aguilar for filing frivolous pleadings in the County Court at Law case. Although 

the probate court never had a chance to transfer the proceedings because Aguilar nonsuited the 

County Court at Law case after Morales filed her motion, the request for sanctions remained before 

the probate court because a nonsuit has no effect on a pending claim for sanctions. See TEX. R.

CIV. P. 162; Villafani v. Trejo, 251 S.W.3d 466, 469 (Tex. 2008). Morales’s motion, in her 

capacity as independent executrix, alleges Aguilar filed frivolous pleadings with the purpose of 

harassing her and thwarting the independent administration of Ramiro’s estate. As with the 327th 

District Court case, we hold the motion to transfer the County Court at Law case and the motion 

for sanctions were grounded in the probate court’s general jurisdiction over matters relating to 

Ramiro’s estate, which was pending in the probate court. See TEX. EST. CODE ANN. § 32.001(a). 

Morales’s motion for sanctions was “a claim brought by a personal representative on behalf of an 

estate” because she, in her capacity as independent executrix, wanted to prevent Aguilar from 

harassing her and interfering with her duties with regard to administration of Ramiro’s estate. See

TEX.EST.CODE ANN. § 31.001(a)(3). Therefore, we hold the probate court had general jurisdiction 

to hear Morales’s request for sanctions against Aguilar on behalf of the estate.

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As with the 327th District Court case, the probate court’s general jurisdiction over the 

request for sanctions based on the pleadings in the County Court at Law case was not restricted by 

section 402.001 because it was not a claim based on the independent administrator’s administration 

of the estate. Morales’s request for sanctions was not in any way a plea to the probate court to 

supervise her independent administration of Ramiro’s estate, which would run afoul of the purpose 

of section 402.001. See Sweeney, 668 S.W.2d at 910. Rather, Morales made a claim for sanctions 

against Aguilar on behalf of the estate to free her, in her capacity as independent executrix, from 

allegedly harassing tactics preventing effective independent administration of Ramiro’s estate. We 

hold that such a claim on behalf of the estate falls within the general jurisdiction of the probate 

court and is not subject to the restrictions of section 402.001. See Estate of Kuenstler, 836 S.W.2d 

at 718. Therefore, we overrule Aguilar’s section 402.001 jurisdictional complaint with regard to 

the probate court’s sanction order based on the filing in the County Court at Law case.

D. Sanctions

Aguilar next contends that even if the probate court had jurisdiction, the probate court 

abused its discretion by awarding sanctions against him in the January 11 and January 28, 2013 

orders. The January 11, 2013 order sanctioned Aguilar for filing frivolous pleadings in the 327th 

District Court case. The January 28, 2013 order sanctioned Aguilar for filing frivolous pleadings 

in the County Court at Law case. Morales’s motions asked for sanctions under both Texas Rule 

of Civil Procedure 13 and Civil Practice and Remedies Code Chapter 10. 

Rule 13 allows a trial court to award sanctions against a party whose pleadings are 

groundless and brought in bad faith, or groundless and brought for the purposes of harassment. 

See TEX. R. CIV. P. 13. We review the imposition of sanctions for abuse of discretion. Low v. 

Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W. 835, 838 (Tex. 2004). We 

reverse the trial court’s ruling with regard to sanctions if it acted without reference to any guiding 

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rules and principles, such that its ruling was arbitrary or unreasonable. Low, 221 S.W.3d at 614. 

Under Rule 13, the party moving for sanctions must demonstrate the opposing party’s filings are 

groundless, and it must also be shown that the pleadings were filed either in bad faith or for the 

purposes of harassment. Estate of Davis v. Cook, 9 S.W.3d 288, 297 (Tex. App.—San Antonio 

1999, no pet.). Further, the trial court must hold an evidentiary hearing to make the necessary 

factual determinations about the motives and credibility of the person signing the alleged 

groundless pleading. Keith v. Solls, 256 S.W.3d 912, 917 (Tex. App.—Dallas 2008, no pet.); 

accord Karagounis v. Prop. Co. of Am., 970 S.W.2d 761, 765 (Tex. App.—Amarillo 1998, pet. 

denied); Bisby v. Dow. Chemical Co., 931 S.W.2d 18, 21 (Tex. App.—Houston [1st Dist.] 1996, 

no writ). “Without such a hearing, the trial court has no evidence before it to determine that a 

pleading was filed in bad faith or to harass.” Alejandro v. Robstown Indep. Sch. Dist., 131 S.W.3d 

663, 669 (Tex. App.—Corpus Christi 2004, no pet.).12

Before addressing the sanction orders, we respond to Morales’s argument that Aguilar’s 

complaints about the sanctions have been waived under the “voluntary payment” rule. The 

voluntary payment rule “is a settled rule of law that when a judgment debtor voluntarily pays and 

satisfies a judgment rendered against him, the cause becomes moot.” Cont’l Cas. Co. v. Huizar, 

740 S.W.2d 429, 430 (Tex. 1987). Morales contends the rule applies here because both sanctions

orders set aside the amount owed “as an advancement to the share otherwise distributable to 

Anthony Cleve Aguilar as beneficiary, heir or legatee of such Estate.” We disagree. There is no 

evidence in the record that the sanctions have actually been paid by Aguilar, even as an 

12 The probate court’s orders did not specify whether it granted sanctions under Rule 13 or Chapter 10. However, it 

is of no consequence to our analysis because Chapter 10, like Rule 13, allows a trial court to sanction a party for 

frivolous pleadings. See TEX. CIV. PRAC. & REM. CODE ANN. § 10.001 (West 2002). As with Rule 13 sanctions, the 

trial court must have an evidentiary hearing to make the necessary factual determinations about the party’s intent when 

deciding whether to impose sanctions under chapter 10. R.M. Dudley Const. Co., Inc. v. Dawson, 258 S.W.3d 694, 

709 (Tex. App.—Waco 2008, pet. denied). 

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advancement of his inheritance. Further, such payment, as a forced advancement, would not be 

“voluntary” such that the rule applied. Accordingly, we hold the issue of the sanctions has not 

been waived under the voluntary payment rule. 

1. January 11, 2013 Order for Sanctions:

Aguilar contends the trial court abused its discretion by sanctioning him under Rule 13 in 

the January 11, 2013 Order without holding an evidentiary hearing. We agree. The December 5, 

2012 hearing on the motion to set aside the default judgment and motion for sanctions did not 

satisfy the requirement for an evidentiary hearing. Evidence of bad faith or intent to harass “must 

be admitted under the rules of evidence at the evidentiary hearing for a trial court to consider it in 

a sanctions context.” Dudley, 258 S.W.3d at 710. No such evidence was offered or admitted 

during the December 5 hearing. Accordingly, the probate court abused its discretion in awarding 

sanctions without an evidentiary hearing, a hearing necessary in order to make the required 

determination of Aguilar’s intent when he filed the pleadings in 327th District Court case. See 

Solls, 256 S.W.3d at 917.

2. January 28, 2013 Order for Sanctions:

The January 28, 2013 order for sanctions concerned the pleading filed by Aguilar in the 

County Court at Law case, which was non-suited before it could be transferred to the probate court. 

Unlike the January 11, 2013 order for sanctions, the probate court held an evidentiary hearing on 

the sanctions ordered in the January 28, 2013 order. At the hearing, Aguilar testified to the bases 

for his pleading and counsel for Morales entered an affidavit in support of the attorney’s fees to be 

recovered by the sanctions. Aside from the jurisdictional challenge we disposed of above, Aguilar 

offers only fleeting arguments with regard to the sanctions award in the January 28, 2013 order.

Aguilar contends the second set of sanctions are improper because: (1) “[t]he case had 

nothing to do with any probate proceeding [and] . . . involved, among other things, a wrongful 

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04-13-00038-CV

death cause of action;” and (2) “[Aguilar] has found no case law that allowed [the probate court] 

to have the sections paid from the Estate of Ramiro . . . [s]uch a ruling is a form of execution not 

allowed under Texas law.” Although Aguilar clearly believes the sanction was inappropriate, he 

has not presented a substantive argument supported by relevant authority. 

An appellant’s brief must contain clear and concise arguments with appropriate citations 

to authorities and the record. TEX. R. APP. P. 38.1(i). “The Texas Rules of Appellate Procedure 

require adequate briefing.” ERI consulting Eng’rs, Inc. v. Swinnea, 318 S.W.3d 867, 880 (Tex. 

2010). We have no duty to properly brief the issues for the appellant. Huey v. Huey, 200 S.W.3d 

851, 854 (Tex. App.—Dallas 2006, no pet.); Torres v. Garcia, 04-11-00822-CV, 2012 WL 

38008593 at *4 (Tex. App.—San Antonio Aug. 31, 2012, no pet. h.) (mem. op.). The failure to 

cite applicable authority or provide substantive analysis waives an issue on appeal. Huey, 200 

S.W.3d at 854; see also Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284–85 

(Tex. 1994) (holding appellate court may use its discretion to find issues waived due to inadequate 

briefing). Here, Aguilar has failed to cite applicable authority or provide substantive analysis for 

his contentions regarding the January 28, 2013 sanctions order. Therefore, we hold Aguilar has 

presented nothing for our review. See Huey, 200 S.W.3d at 854.

CONCLUSION

Based on the foregoing, we: (1) affirm the probate court’s transfer order, (2) declare the 

default judgment rendered by the 327th District Court of El Paso County void, (3) reverse and 

remand the probate court’s January 11, 2013 sanctions order for further proceedings consistent 

with this court’s opinion, and (4) affirm the probate court’s January 28, 2013 sanctions order. 

Marialyn Barnard, Justice

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