Opinion filed Jan uary22 , 2 009



### In The 

# Eleven th Court of Appeals

____________ 

### No. 1 1- 07 -0 01 16 -CV

____ ____ __ STA TE OF FIC E OF RISK MA NA GEME NT, Ap pellant V. SHA WNA E R . F OUT Z , A ppellee

On App eal from the 58th Distric t Court Jeff erson County, Texas Trial Court Cause No. A- 0175988

O P I N I O N The State Of

fice of Risk Manag ement (SORM) filed suit ag ainst Shawnae R. Foutz seeking judicial revie w of a

finding by

the Texas Workers’ Com pensation C ommissi on that she had suf fer ed a compe nsable injury

while workingas a corr ectional office r for the T exas Depar tment of Criminal J ustice. The jury found i n favor of Foutz . The trial c ourt then sua sponte issued a n order requiring SO RM and its attorney s to show cause why they should not be sanctioned f or filing a fr ivolous lawsuit. Following the s h o w cause hear ing, the trial court sa nctioned SORM $100,000, its l ead

c ouns e l $5 ,0 00 , a

nd its c o- c ouns e l $3 ,0 00 . We a ff ir m th e imp os iti on

of sa nc tio ns a g a ins t SO RM but reve rse the $100,000 sa nction assessed an d rema nd for a new he aringto determine the appropr iate sanc tion.T he notic e of a ppea l c onta ine d no r ef

er enc e to t

he sa nct ions e nte re d a g ai nst

the indi v idua l attor

ney s. SO RM st at ed that i t: 1 [ I] nten ds to a

pp eal

. . . the jud gm ent rendered a gainst P laintiff , STA TE OFFICE OF RISK MA NA G EMENT se t f orth in t he Am ende d Fina l Judg m ent of Fe brua ry 28, 2007 and the De ce m ber 22, 2006 and De ce m

ber 29, 2006 Sanct ions O rde r. This Not ice of Appeal i s filed pu rsuant to Ru le 25. 1 of the T EXAS R U LE S O F A P P EL L A TE P ROCED URE
. Se cur ity f or cos ts is not re quire d by la w , bec aus e Plaint if

f is an ag enc y of the State of T ex as , an d is t her ef ore ex em pt f rom the re quire m ent

of f ili ng a c ost bond.
No atte m pt t o f ile s ec urit y f or c ost s w as m ade by

the indiv idua l att orne y s nor w as any arg um ent adv anc ed that t

hey too w er e ex em pt f rom thi s re quire m ent

. 2 We do not address the sa

nctions assessed a g ainst SORM’s attorney s beca use no appe al was perf ecte d on their beha lf. Se e W ill iam s v . Co lth ur

st , 253 S.W .3d 353, 367 (Tex. App.—Eastland 1 20 08 , no pe t.) (n oti c e of a pp e a l file d b y

c lie nt d id n ot p e rf

e c t a pp e a l of sa nc tio ns a sse sse d a g a ins t client’s attorne y

beca use it did not li st at t o rn ey as an a ppellant). SORM’s counsel state d at ora l

argume nt t

hat it wa s SORM’ s inte nt to ap pe a l th e sanc tio ns a sse sse d a g a ins t th e ind ivi du a ls a s w e ll as itself. Howe ver, in a ddition to t he lack of a notice of appea l filed on the individuals’ beha lf, we

no te a lso tha

t SO RM’ s bri e f w a s f

ile d s ole ly

on be ha lf of its e lf , th a t SO RM’ s a

pp e llate a tto rn e y

is shown solely

as counse l for S ORM, that SORM’s brief lists only Foutz and SORM as parties, a nd that no argument specific to the individuals was advanc ed. I

. Ba c k gr ou nd Fa c ts Foutz was a Te x as De partment of Criminal Just ice c orre ct i o n s o ff i cer. On F ebrua

ry 14, 20 05 , s he wa s wo rk ing the nig ht sh if t and wa s a ssi g ne d to the c on tr ol are a that op e ns and c los e s c e ll doors. Her

shift ended at 6 a.m. At about 5:50 a.m., Foutz hear d a bang ing noise and someone

say ing , “ L e t me in. L e t me in .” S he tu rn e d a nd sa w Inmate Gi lbe rt

tr y ingto f le e fr om I

nmate Caldwell. Ca ldwell beg an stabbing Gilbert. TDCJ pol icies for bade F outz from opening the cell door and allowingGilbert into the control area

. I nstead, Foutz was required to watch the attack so that she could la t er i d en t ify

the par ticipants. Other inmates distra cted Caldwe ll, and Gilbert mana g ed to e sc a pe . F ou tz w a s r e lie ve d f

ro m duty a t 6: 03 a .m. and

wa s in str uc te d to g ive a

wr itt e n s ta te me nt. Five to ten minutes late r, she lea rned that Gilbert had died. Foutz stay ed at wor

k participating in the investig ation until 1:00 p.m. She went home a nd tried to rest but wa s unable to do so beca use she kept seeing the event over and over . She called he r supervisor a

nd repor ted havingproblems. He g ave he r the Emer g ency Assistance Prog ram phone3

number , and Foutz s chedule d an appointment with Wanda Ke ndall, a license d profe ssional counselor. Foutz told Kenda ll that she was experiencing anxiety and wa s questioning he rself f or not preve nting Gilber

t’s death. F ou tz f ile d a wo rk e rs ’ c omp e ns a tio n c la im. SORM dis pu te d it. At SORM’ s r e qu e st, F ou tz

saw Dr. Edwin J ohnstone, a B oard Cer tified Psy chiatrist, for a

n independe nt medical exam (I .M.E.). He c onfirmed that F o u t z s u ff ere d from P.T.S.D. and re commended f urther tr eatment. A T exas Workers’ Compensation off icer conducte d a contested c ase he aringand found that Foutz suffere d a compe nsable m en t al -t ra uma injury on Fe bruar

y 14, 2005. The TWCC Appeals Panel af firmed. SORM filed suit for judicial review . The jury found for Foutz, and the trial court a war ded her $50,717.47 in attorney ’s fe es, costs, and e x penses. SORM points out t hat this is $50 more than she reque sted, but it is not challeng ing that awar d. The trial c ourt sua sponte orde red SORM and its two trial attorney s to show cause why they should not be sanctioned f or filing a frivolous suit. The trial c ourt conduc ted an e videntiary hear ing and, following that hear ing, sa nctioned SORM $100,000, its lead counsel $5,000, a nd its co-counse l $3,000 for f

iling a f rivolous suit under T EX
. R. C IV
. P. 13 and T EX
. C IV
. P R AC
. & R EM
. C ODE ANN
. ch. 10 (V ernon 2002)

. I I

. Issue s SORM contends that the sanctions orde r is invalid, that it viol ates the Te x as Constitut ion by g ranting public funds t o a corporation for private pur poses, and that it does not justify the amount of sanc tions awarde d. I I I

. An aly sis A. Standard of Review

. We rev i ew the imposi tion of sanctions under Rule 13 or Chapter 10 f

or an a buse of discretion. Low v . H

e nr y , 221 S.W .3d 609, 614 (Tex. 2007)

. A trial court abuses its discr etion when it acts in an unre asonable or ar b itrary manner or whe n it acts without refe renc e to any g uiding principles. Dow n erv. Aquamarine O perators, Inc. , 7 01 S.W. 2d 23 8, 24 1- 42 (T e x. 19 85 ). Th is require s an examination of the entire rec ord. Loe ffl e r v . Ly tleIn d. Sc h. Di

st. , 211 S.W .3d 331, 347 (T e x. Ap p. —Sa

n A nto nio 20 06 , p e t. s tr

uc k) . A ny

c on fl ic tin g e vid e nc e is vie we d in the lig ht m os t favor able to the tria l court’s ruling , and all re aso n ab l e inferenc es in favor of that ruling will be4

draw n. Id . at 34 8. To de te rm ine if the sa nc tio ns we re a

pp ro pr ia te or jus t, the a

pp e llate c ourt

mus t

en s u re t h ere is a direc t nexus betwee n the improper c onduct and the sa nction imposed. Spohn Hosp. v. May er , 104 S.W .3d 878, 882 (Tex. 2003). B. Sa nc tio ns for

Fr iv olo us Pl e ad

ing s. Courts presume that plea dings a re f iled in g ood faith. GTE Commc’ns Sy s. Corp. v. Tanner , 85 6 S. W.2 d 72 5, 73 0 (T e x. 19 93 ). B ut t ri a l c ourt s h a ve the a

uth or ity to s anc tio n a

n atto rn e y or pa rt y for f iling motions or pleading s that lack a rea sonable ba sis in fact or law under Rule 13 a

nd Chapter 10. Rule 13 authorizes the i mpositi on of the sanc tions li sted in T EX
. R. A PP
. P. 215.2(b). Th e on ly mon e tary

sanc tio ns a llo we d b y

Rul e 21 5. 2( b) are fo r t

he op po sing p art

y ’s e xpe ns e s, attorney ’s fe es, and ta x able c ourt costs. Be cause the trial cour t’s $100,000 sanction wa s not based upon expenses, court c osts, or attorney ’s fee s, it is not a uthorized by either Rule 13 or Rule 215.2(b), and SORM’s first issue is sustained. Se c tio n 1 0. 00 1 p ro vid e s: Th e sig nin g of

a ple a din g or mot ion a s re qu ir e d by the Te xas R ule s o f C ivi l Pr oc e dure c on sti tut e s a

c e rt if ic a te by the signator

y that to the sig nator

y ’s be st kn o w l e d g e , i n f

o r m a t i o n , an d

b e l i e f , f o r m e d a f t e r r e a s o n a b l e i n qu i r y: (1 ) th e p le a d in g o r mo ti o n is n o t b e in g p r e s e n te d for a ny improper pur

pose, including to hara ss or t o cause unnece ssary delay or nee dless incre ase in the c ost of litigation; (2) e ach c laim, defe nse, or other leg al contention in the pleadingor motion is warra nted by exis ting law

or by a nonfr ivolous argument for the ext ension, modification, or re versa l of exist ing la w or the e stablishment of new law ; (3) each alleg ation or ot her factua l contention in the pleading or motion has eviden t i ary support or, for

a spec ifically

identified alleg ation or fa ctual conte ntion, is likely to have e videntiary support a f t e r a r e a s o n a b l e o p p o rtu n i t y f

o r f u rt h e r i n v e s t i g a t i o no r

d i s c o v e r y; and (4) e ach de nial in the pleadingor motion of a fa ctual c on te nti on is wa

rr ante d on the e vid e nc e or , for a sp eci fi c a lly identifi ed d en ial, is reasona bly based on a

lack of information or belief.5

Con se qu e ntl y , th e sig ne r o f a ple a din g or mot ion c e rt if ie s th a t each claim, each alleg ation, and each de nia l is ba se d u

po n th e sig nator

y ’s be st k no wl e dg e , in fo r

m a t i o n , a nd be lie f, fo rm e d a ft e r r e a so na ble inquiry

. Low , 221 S.W .3d at 615. Eac h alleg ation and fac tual contention in a pleading or motion must have, or be likely

to have, e videntiary

support afte r a r easona

ble investig ation. Id. C. The Sanctions Hearing. At the c on c lus ion

of the tr ia l’ s f

ir st d ay , th e tr ia l c ourt

a dv ise d c ouns e l th a t th e e vid e nc e so far sug g ested that SORM’s position appea red frivolous. After the jury returne d with its verdict, the trial court a g ain advised c ounsel that SORM’s positi on was wholly lackingmerit, that it was scheduling a posttrial h ea ri n g t o en t er a judgme nt, and that at that time it would consider what actions, if any , should be taken to discourag e similar frivolous lawsuits. The posttrial hea ring was
sc he du le d a

nd c on du c te d. At

the c on c lus ion

of tha t he aring, th e cou rt a dv ise d c ouns e l th a t it appea red SORM had filed a frivolous suit beca use of the complete a

bsence of any

evidenc e or la

w to support its posi tion and that it was enter ing a show ca u se orde r. The tr ial court instructe d SORM’s counsel to addre ss whether any consideration was g iven to the fa ct that ca lling F outz t o the wi tne ss s tand

wo uld re -t ra umatize he r a

nd to a dv ise the c ourt

wh o ma de the de c isi on

to p ro se c ute the suit. The show ca

use orde r re stated the trial court’ s conce rn that the suit was fr ivolous and was unsupported by

the fa cts and law and that no rea sonable arg ument could be made for the extension of existi ng law. SO R M c a l l e d i t s g e n e r a l c o u n s e l S t e p h e n V o l l b r e c h t a s i t s s o l e w i t n e s s a t t h e s h ow c a us e hear ing. V ollbrecht testified that it was his decision t o file sui t and that he did so beca use he did not be lie ve that th e he ari ngof fi c e r or a pp e a ls pa ne l ha d a dd

re sse d th e le g a l st and ard

fo r m e nta l- tr a

uma
c la ims

. Re pe tit ive me nta l tr a uma re su lti ngin i nju

ry is n ot c omp e ns a

ble un de r t

he Wor ke rs ’ Compensation Act. Transp. Ins. Co. v. Maksyn , 580 S.W .2d 334, 337-39 (Te x . 1979). Employ ees may , howeve r, re cover

for a n acc idental i njury due to mental t rauma when ther e is evidenc e of a n undesig ned, untoward event trace able to a definite time, place, a nd cause

. GTE Sw., Inc. v. Bruc e , 998 S.W .2d 605, 610 (Tex. 1999). Vollbrec ht testified that the hearing office r and appea ls panel made no finding that Foutz’s injury was attributable to a spec ific time, place , and in ci d en t and that, without this finding, it wasT he he ar ing off ic er ’s fi nding s of

fa ct include d the f

ollow ing : “1. On Febr

uar y 14, 2005, [ Foutz ] w as em ploy ed by the Sta te of 2 Te xas ; . . . 6. On Feb ruary 14, 200 5, [ Fou tz] sustained d am age or harm to the ph y sical s tructu re of her bod y w hile she w as e ngage d in t he ex er ci se of

he r j ob duti es .” T he hea ringof f ic er ’s c oncl usi ons of

la w in cl u d ed a d et ermin at ion t hat Foutz“ sus ta ine d a com pens abl e m ent al tr aum a injur y on Fe brua

ry 14, 2005. ”
SORM also off

ered into ev iden ce an af

f idavit f rom V ollb recht, the hearing off icer’s dec ision , SORM’s request f or review of that 3 decision , the TW CC A

pp eals P anel decision, SORM’s original petit ion ag ainst Fo utz, and the jury charge

. 6 difficult to justify

not appea ling. Vollbrec ht c oncede d in response to the tria l court’s que stions that

2 compensa bility could have been de termined ba sed upon the fa cts, that he kne w what the f acts we re, and that he knew them prior to the contested case hear ing. He also testified that he did not consider whether Foutz would have to testify if an a ppeal wa s filed, but SORM’s counsel acknow ledg ed that the trial impacte d Foutz e motionally and that, but f or the law suit, she would not have bee n require d t o t e s t i f y. SORM’s counsel offe red, a nd the trial court acc epted, excerpts of Dr. Johnst one’s de position testimony into evidence at the start of the show ca

use hea ring . After Vollbrec ht’s testimony , counsel broug ht this t estimony

to the trial court’s attention. Counsel arg ued that Dr . J ohnstone’s deposition 3 testimony supported the contention that Foutz’s injury was due to three se parate eve nts rather than one. Dr . J ohnstone was de posed af ter SORM filed suit a g ainst Foutz. One could, ther efor e, question its mate ri a lity wh e n th e iss ue is w he the r t he su it w a s f

ile d in ba d f a ith . N on e the le ss, SORM h a s a lso asked this cour

t to consider Dr. J ohnstone’s deposition te stimony

. Be cause the trial cour t admitted Dr . Joh ns ton e ’s de po sit ion te sti mony

e xce rp ts, we wi ll c on sid e r t hat te sti mony

in o ur ana ly sis

. I n a n atte mpt to e sta bli shtha t Fo utz did no t ac tua lly wi tne ss a mur de r – be c a us e the vic tim

wa s st ill a liv e wh e n s he la st s aw h im, SORM’ s c ouns e l a sk e d D r. John sto ne : “ [I ]s it no t tr ue sh e did not witness actually

a stabbing murder at the time of the incident? ” Dr . J ohnstone responde d: There wer e re ally

three things going on. She’s at work at what seems like a routine th in g
. T h e s h if

t i s a b o u t t o e n d , a s a

matt e r o f f a c t. M u c h to h e r

surprise, there ’s a ba

ng ing noise and somebody scre aming , “L et me in. L et me in. L et me in.” She looks and sees that Gilbert is bei n g as s ault ed by Caldwell. And, so, she see s that. The secon d thing is that she’ s g ot the switch to the door that he is plea ding for he r to open. And it’s flashing throug h her mind, “ Should I , should I not open – hit the switch to open that so that may be he could g et awa

y from this assault? ” And she’s runningthroug h, “I f I wer e to do that, though, that’s brea king a rule a bout what Iwas tra ined to do and told that Imust not open that ex ce p t u n d er ce rt ain kind of7

require ments.” You know, I ’m not sure what they are
. But, a ny way , it was a no-no and –

. . . . And then the third fa ctor in the thin g wa s the discover y afte r a bit that the man h a d d ie d r a the r t

ha n s ur viv e d th e a ssa

ult

. So, there a

re r eally three elements in it, it seems to me.
SORM’s counsel later r efe rre d to these e l em en t s as “those thr ee a spects, those thre e incidents, for la ck of a

better word.” Dr. J ohnstone ag ree d that they all resulted in Foutz’s P.T.S.D. d ia g n o s is

. SO RM ’ S c o u n s e l pa s s e d th e w it n e s s a f te r th is an s w e r , an d in r e s p o n s e to th e v e r y n e xt question, Dr. Johnst one cla rified that these three aspec ts were all part of one ev ent

. Q. All rig ht. [ SO R M ’s co u n s el] used the . . . wor ds “aspe cts of that e ve nt. ” Do y ou

fe e l li ke that th e wi tne ssi ngof the – a s h e – I ’l l us e his word s – “assa

ult,” the later

discoveringof the de fenda nt, which Ibe lie ve sh e te sti fi e d to wa s f a ir ly qu ic kly – a sh or te r p e ri od of tim e tha n 3 0 o r 4 0 mi nu te s, a s w e ll as the fe e lin g s o f h e lpl e ssn e ss w ou ld be on e e ve nt o r t

hr e e e ve nts ?
A. One e vent

(empha sis added). Any linge ring confusion about Dr . J ohnstone’s opinion was addr essed in subseque nt testimony wh e n, in r e sp on se to S ORM’ s a dd iti on a l qu e sti on s, he tw ic e mor e te sti fi e d th a t thi s w a s one ev ent

. Q. And that’s what I ’m wanting to clarify ag ain for the ladies and g entlemen of

the jury . So, it wasn’t one sing le eve nt that resulted –
A. I t wa s o n e s ingle eve nt , as I would conce ive of it, with a lot of dif fe re nt e le me nts in i t. Q. And the ele ments y ou’re talking a bout are , ag ain, the observation of the assault, the guilt, and the later lear ning that one of the inmates had been killed?
A T h o s e ar e t h e t h r e e m a j o r e l e m e n t s t h a tI – Q. But y ou don’t –
A. – notice –8

Q. Yo u d on ’t

– A. – b ut I ’m

no t sa y ingthe re we re n’ t ot

he r e le me nts

. Q. Ok ay . Y ou

do n’ t c on sid e r t

ho se thr e e dif

fe re nt e ve nts ?
A. No. Q. Be cause ?
A. Well, because it was one tra umatic experienc e that happene d during the time that she wa s rig ht on the scene there within her work. It was one com plex e vent

(empha sis added).
D r
. Jo h n s to n e ’ s d e p o s it io nte s ti mo n y d o e s n o t e s ta

b li s h a r e a s o n a b le b a s is to f

il e s u it a g a in s t F o u tz

. I t di sp ro ve s th a t con te nti on be c a us e Dr . Joh ns ton e wa s c le ar t hat F ou tz’ s P. T. S.D . w a s p ro xima te ly

cause d by one work-r elated e vent. This testimony should have c ome as no surpr ise bec ause it wa s completely

consistent with his report. Dr. Johnstone wrote: Ms. Foutz was not in mortal dang er herse lf in the event but the g hastly scene of the murder w as enoug h to shock her emotionally

. Her sense of being frozen in a position of po te nti a l to save the vic tim , h ow e ve r u nr e a lis tic in p ra c tic a l r e a lity , i s d e e ply disturbing in a te nacious wa y . Her sy mptoms of reper cussions after emotio n al tr a uma (P TSD , D SM- I V 3 09 .8 1) are c on sis te nt w iththe e ve nt. Consequently , Dr. Johnst one neve r opined that F outz ’s P

. T

. S

. D. was pr ox imately cause d by repe titive mental trauma. I t is wo rt h noting that Dr . J ohnstone was we ll familiar with repe titive mental trauma . He de scribed that condition for t he jury , g ave them an example of it, and testified that Foutz’s condition was “a lot differe nt.” At the conc lusion of the s h o w ca use hea ring , the trial cour

t found that SORM’s suit was g roundless. The c ourt noted that the de termination of compe nsability could have been ma de just by examining t h e facts, that the fac ts were known, and that Dr . J ohnstone opined that this was one event. SORM ar g ues that it wa s unfairly punished for losing when f rivolous suit sanctions are mea nt only to punish those who should not have broug ht a ca se. We ag ree with this proposit ion but do not agr ee t h at S OR M wa s p u n i s h edfo r l o s i n g.9

D. Di d S OR

M H av e a R e as on ab le Ba sis for Fi lin g S uit Ag ain st F ou tz? SORM sued Foutz to appeal the de cision of the appe als pane l. I t, there fore , bore the burden of proof. T EX
. L AB
. C ODE ANN . § 410.303 (Ve rnon 2006). B eca use SORM contended that Foutz’s P.T.S.D. was cause d by

multipl e re petitive trauma, its suit require d proof by a pre pondera

nce of the evidenc e that Foutz was exposed to multi ple traumatic events. The only evidenc e SORM proffe red the trial cour

t at the show ca

use hea ring of multiple traumatic eve nts was Dr. Johnstone’s deposition. As noted, that deposition establishes exactly the opposite. This case does not prese nt any of the unc erta inties ty

pical of litig ation. No conf licting

e vid e nc e wa s r e so lve d a g a ins t SO RM. I t dis c ov e re d no ne w e vid e nc e a ft e r fi lin g su it. No wi tne ss fa ile d to a pp e ar o r t e sti fi e d d if

fe re ntl y a t tr ia l th an d

ur inga de po sit ion

or pr e tr ia l in te rv ie w. SORM does not contend that it wa s s urprised by any evidenc e or te stimony

Foutz offer ed at tria l. No witness or testimony

was e x cluded. SORM attempted to play the videotape of Dr. Johnstone’s de po sit ion

bu t, b e c a us e he wa s p re se nt i n th e c ourt ro om, wa s r e qu ir e d to e xami ne him liv e . SO RM

wa s n ot p re ve nte d f

ro m a sk ingDr . Joh ns ton e any qu e sti on or fr om i mpe a c hin g hi m with h is deposition testimony . The trial c ourt’s ruling , there fore , did not alter the testimony the jury hear d. Th e ab s en ce of any

evidenc e to support SORM’s principal conte ntion – a contention on which it bore the burden of proof – more than j u s t i fi es t h e trial court’ s frivolous suit finding. Cf. Armstrong v. Collin County Bail Bond Bd. , 233 S.W .3d 57, 63 (Tex. A pp.—Dallas 2007, no pet.) (the mer e filing of a pe tition cannot support an awa rd of sa nctions when t h e p ar t y h as a statutory rig ht t o s ee k j udicial re view by trial de novo of a

n administrative dec ision revoking his license). B e c a us e SORM h a s id e nti fi e d n o e vid e nc e or po te nti a l e vid e nc e to su pp or t its mul tip le e ve nt c la im, the tr ia l c ourt

did no t a bu se its dis c re tio n b y

fi nd ingthat SO RM f

ile d a g ro un dle ss s uit

. The ne x t issue is whether SORM’s suit can be justified as a n o nfrivolous reque st for an extension or modification of exis ting law . SORM arg ues that cour ts have y et to decide whether

sever al ca

uses of mental -t rauma injury separ ated by

a re latively

short period of time a

re a n
a sc e rt a ina ble , s ing le e ve nt, a nd

it c ha ra c te ri zes thi s c a se a s o ne pr e se nti ngthr e e se pa rate e ve nts

. Courts have he ld that mental stress ca used by multipl e stressors over an extended period of time are not compensable

. Se e, e .g ., GTE Sw. , 998 S.W .2d at 611 (employ ees whose distress was cause d by multipl e ac tions by

their super

visor over a

“two-a nd-a- half” y ear

period of t i m e did not have a10

c omp e ns a ble c la im) ; Olson v. Hartf ord Acc ident & Indem . Co. , 477 S.W .2d 859, 860 (Tex. 1972) (three or four f

ru str a tin g e xpe ri e nc e s o ve r a nin e te e n- da

y pe ri od we re no t an a sc e rt a ina

ble sin g le event) . When inj u ri es ar e ca used by a par ticular e x citing e vent, howeve r, they are compensa

ble. See, e.g., Bailey v . Am. Ge n. Ins. Co. , 279 S.W .2d 315, 316 (Tex. 1955) (tra umatic neur osis suffere d by worke r on sca ffold af

ter a lmost falling fr om scaff old and see ing f

ellow worke r fa ll to his death) ; Hood v. Tex . Indem . Ins. Co. , 2 09 S.W. 2d 34 5 ( Te x. 19 48 ) ( tr a umatic ne ur os is f

oll ow ingsin g le inj ur y to f oo t and e lbo w) ; Tra v e le rs I

ns . Co . v . G ar c ia , 4 17 S.W. 2d 63 0 ( Te x. Civ . App .— El Pa so 1967, writ ref

’d n.r.e .) (ne urosis after

experiencingarme d robber y ). Even if we assume that SORM has correc tly identified an unresolved issue, this suit does not raise it. Witnessing an attack, lea rning within minutes that it wa s fata l, a nd subsequent fee lings of g uil t f o r n o t p r e v e n t i n g t h e v i c t i m ’ s d e a t h ar e n o t s e p ar a t e c a u s e s o f m e n t a l t r a

u m a
. T h e y a r e a ll direc tly attributable to a sing le eve nt: t h e at tack F outz wit nessed. Common sense dicta tes that le arn ingwi thi n mi nu te s tha t the a tta c k wa s fa ta l and fe e lin g g uil ty fo r n ot d oin g mor e me re ly e xpla in the deg ree of mental trauma she experience d and why it c aused her to suf fer P.T.S

. D. M o re o ver, beca use this was supported by Dr. Johnst one and not disputed by any witness, it is the only position supported by

the re cord. Consequently , the trial cour t did not abuse its discretion by finding that no

rea sonable a

rg ument could be made for the e x tension of exist ing la w. SORM nex t argues that there was no e vidence that it ha d an improper purpose f

or suing Foutz. The trial cour

t di d n o t ab u s e it s discretion by finding otherwise. T he trial c ourt was not require d to find Vollbrecht’ s testimony cre dible. T h e co u rt could consider that the only

evidenc e SORM o ff

e re d to su

pp or t it s argume nt t

hat F ou tz’ s inj ury res ult e d f ro m th re e se pa

rate e ve nts established exactly

the opposi t e; t h at, af

ter SORM asked f

or and r ece ived an I .M.E. confirming Foutz’s diag nosis, it continued to contest her cla im; and that SORM at lea s t impaired F outz’s tr e a tme nt b y

re fu sin g to p ay

fo r m or e tha

n o ne of Ke nd a ll’ s c ouns e lin g se ssi on s. Th e tr ia l c ourt a lso had the benef

it of observing the conduct of the trial. The c ourt noted that F outz i s Afric an-A merica n and that SORM used five of its six pere mptory

challeng es to strike Afr ican- Am eric an
ve nir e me mbe rs
. The c ourt’s exercise of discretion is a lso supported by consideration of the litigation’s e ffe ct on Foutz. When the trial court a dvised SORM that it was issuinga show c ause or der, it told counsel11

that it wa nte d s ome on e to a dd

re ss wh e the r c on sid e ratio n wa s g ive n to the e ff e c t th e lit ig a tio n w ou ld have on F outz. The trial court described he r as shaking like a leaf while on the witness stand. Vo llb re c ht i nit ia lly

re fu se d to a dmi t kn ow ingthat, i f s uit we re fi le d, F ou tz w ould be re qu ir e d to testify about the eve nts. SORM’s counsel later conceded that Foutz did have an e motional reac tion – althoug h she minimiz ed this by saying that it happene d during Foutz’s attorney ’s questioning – and she conc eded that, if no suit ha d been filed, Foutz would not have bee n require d to testify . Foutz’s

re a c tio n s ho uld

have be e n e xpe c te d. No t on ly are the fa c ts h or

ri fi c and any tr ia l w ou ld n e c e ssa

ri ly

re qu ir e the ir

re c itatio n, bu t a lso the he ari ngof fi c e r’ s d e c isi on

and or de r re fl e c t tha t Fo utz w a s v isi bly distraug ht during the conteste d case hear ing and t hat s he wa s particular ly disturbed by

the memory of the e x pressions on the inmates’ fac es as they strug g led and by

the knowledg e that she w as po we rl e ss t o a ssi st the vic tim

. SORM argue s th a t it

wa s r e sp e c tf

ul o f Fou tz ’s fe e lin g s d

ur ingthe tr ia l and

no te s th a t it limit ed its questions to her to only twenty pag es of the r eporte r’s re cord but that he r counse l’s questions spanned sixt y

pag es. Presumably , SORM’s contention is that, if Foutz was traumatiz ed fu rt h er b y t h e l i t i gat i o n , i twa s h er

co u n s el ’s fa u l t

. S OR M d i d ca l l Fo u t z as a w i t n es s , we n tt h ro u gh the eve nts of Fe bruar

y 14, and ar g ued with her

over w het h er s h e s imply saw a fig ht or something

mor e se ri ou s. B ut e ve n if we dis re g ard thi s and a c c e pt SORM ’s c on te nti on that any tr a uma F ou tz experience d was during her own counsel’s examination, SORM’s position i g nores the f act that, onc e it d e c ide d to su e he r, F ou tz r isk e d lo sin g he r be ne fi ts wit h an a dv e rs e jur

y de c isi on
. We c ann ot f

a ult Foutz’s counsel for

making sure that the jur

y understood what had happe ned, how it had impac ted F ou tz, a nd wh y sh e wa s d isa

ble d b e c a us e of it. Th is doe s not me an th a t sa nc tio ns are a

pp ro pr ia te

mere ly beca use F outz was traumatized by being forc ed to testify

. SORM has a right to see k judicial revie w of a

n adver se TWCC Appea ls Pane l decision. So long a s it has a re asonable basis for f iling suit, thi s rig ht trumps any anxiety testify ing mig ht cause

. Be cause SORM offere d no re asonable basis for its dec ision to sue Foutz, because the trial

c ourt c ou ld r e a so nab ly fi nd

Vo llb re c ht’ s te sti mony

un be lie va ble , a nd be c a us e the imp a c t th is litigation would have on her w as cle arly fore seea ble, the trial c ourt did not abuse its discretion by finding that the litigation wa s filed in bad fa ith.12

E. TheTria l Co ur t’

s S an c tio ns Or

de r. SORM arg ues that the trial court’s sanctions order fails to specify the sanc tionable conduc t it c omm itt e d. SORM c omp la ins that the tr ia l c ourt ’s or de r (1 ) ind ic a te s that it did no t ca ref ull y ref lect on the or der, ( 2) does not inform SOR M and its counsel of their sanctionable conduct so a s to deter suc h acts in the future, and (3) doe s not allow this court to give meaning ful appe llate re view. SORM’s f

ir s t c o n te n ti o n is d is p r o v e d b y th e r e c o r d

. T h e tr ia l c o u rt d id n o t a c t h a s ti ly or impetuously

. I t raised its conce rns during t rial but delay ed any action until a posttrial hear ing. A t that he ari ng , th e tr ia l c ourt re iterat ed it s con c e rn s and ann ounc e d it s in te nt t o is su e a sh owc a us e order . At the show ca

use hea ring , the trial cour

t allowed SORM to presen t an y ar gu m ent and evidenc e it wished, wa s eng ag ed by asking sever al questions, and then e laborated on its findings at leng th after

the hea ring

. Cf. Armstrong , 233 S.W .3d at 62 (re versingsanctions and noting that the trial court did not hol d a hearing befor e assessing sanctions for bad faith plea dings a nd thus it heard no evidenc e about the und er l y ing f acts that supporte d the awa rd of sa nctions). The tria l court’s decision, there fore , was we ll considered. Nor did the trial court fail to inform S ORM why it was being sanctioned or preve nt this court fr o m r e v i ew i n g t h at o rd er
. S ec t i o n1 0

. 0 0 5 re q u i re s co u rt s t o “d es cr i b e i nan o rd er i mp o s i n g a
sanc tio n und e r thi s cha

pte r the c on du c t the c ourt ha s det e rm ine d viol a te d Se c tio n 1 0. 00 1 a nd e xpla in the basis for the sanction imposed.” Whil e S ection 10.005 ref ers to the s anctions order, courts have held that t h i s obligation can be satisfied outside the sanctions orde r itself. See, e .g., Univ. of Tex. at Arlington v. Bishop , 997 S.W .2d 350 , 3 5 6 (T ex . App.—For t Worth 1999, pet. denied) (Section 10.005 ca

n be satisfied w ith separate finding s of fa ct and c onclusions of law). Th e tr ia l c ourt ’s sanc tio ns or de r p ro vid e s in pa rt a s f oll ow s: On Dec embe r 1 8 , 2006, a hea ring was he ld orderingthe Plaintiff, STATE OF F I CE O F RI SK M AN AG EM EN T, and its a tto rn e y s, Rod

ne y V. Rui z an d N e lly R. H err era , of the Attorney Gene ral’s Offic e of Texas, to show cause why an orde r for sa nctions should not be impos ed by the Court for br inginga fr ivolous suit , for signingpleading s containing unsupportable f actua l an d leg al alleg ations, and for violation of TRCP 13 and CPRC Chapter 10 a nd order ed to appe ar at a hea ring on the matter on D ece mber 21, 2006.
After consideringthe re sponse, evidenc e, fa cts, a n d a r g u ments of counse l, the Court found that the P laintiff’s posi tion on the case was g roundless, frivolous, in bad13

fa ith , a nd tha t it wa s uns up po rt e d b y the fa c ts a nd law a nd that no re a so na

ble argument could be made for the e x tension of exist ing la w. Finding s in Support of Sanctions Under TRCP 13 and CPR C Chapter 10
The c ourt makes the following f indings in support of the sa nctions imposed under TRCP 13 and CPRC Chapter 10 § 10.004:

a
. Th e Pla int if

f’ s O ri g ina l Pe tit ion

wa s si g ne d in violation of TRCP Rule 13 and CPRC §10.001. The signingof a ple ading or m o tion as require d by the Te xas R ule s o f C iv il Pr oc e dure c on sti tut e s a c e rt if ic a te by the sig nator

y that to the sig nator

y ’s be st knowledg e, information, and belief, f ormed a fter rea sonable inquiry . T he cour t found that the explanation given at the show cause hear ing w as nonpe rs ua siv e , g ro un dle ss, and la c ke d me ri t. b. The spec ific ac ts or omissions for whic h sanctions ar e imposed is for bring ing a frivolous su it, for sig ning pleading s containing unsupportable factua l and leg al a lle g a tio ns , a

nd fo r v iol a tio n o f T RCP 1 3 a nd CPRC Chapter 10.
SORM w a s o n n oti c e fr om t he tr ia l c ourt ’s c omm e nts duri ng tria l, a ft e r t he jur y re tur ne d w ithits verdic t, and at the entry of judg ment hear ing that it believed SORM had filed a f rivolous lawsuit by contesting a clea

rly compensa

ble injury

. The sanc tions order spec ifically states that SORM had filed a fr ivolous suit , that SORM’s posit ion was g roundl ess, and that Vollbre cht’s explanation for why suit was filed wa s not credible. To the extent the sanctio n s o rd er d i d not adequately explain to S ORM that it was being sanctioned f

or filing a lawsuit wit h no rea sonable ba sis to do so, t he cour t’s oral finding s at the show

cause hear ing should have been i lluminating. The court found t hat there was no c ontroversy about the fa c ts an d tha t the c omp e ns a bil ity of F ou tz’ s c la im c ou ld b e de te rm ine d ju st b y e xami nin g tho se
un dis pu te d f

a c ts. I t a lso state d th a t SO RM’ s pr of fe re d re a so n fo r br ing ing su it, the c la im that F ou tz was involved in multiple events of menta l trauma, wa s ridiculous. Th e co u rt n o t ed that S ORM’s own I .M.E. doctor fe lt that Foutz’s P.T.S .D. was cause d by a single event a nd stated that it had neve rT his holdi ng m ak es it unne ce ss ar

y to addr es s SO RM’ s thir d is sue , a nd w e ex pre ss no opi nion on w

het her it w as a ppropr iate to 4 dire ct SO RM to m ak e a

pay m ent to the distr ic t cle rk

for the us e and bene f

it of the T ex as Ba

r F oundat ion. If

, on r em and, the tr ia l c ourt det er m ine s that a

m onet ar y s anc tion is a

ppropr iate , the cour

t ha s the a

uthori ty to re cons ide r t

he re ci pie nt of

that s anc tion. 14 seen a case with less controver sy about what the fac ts were or less controve rsy about what

c on c lus ion s sh ou ld b e dr awn fr om t ho se fa c ts. Th e tr ia l c ourt

satis fi e d Se c tio n 1 0. 00 5. SORM w a s sa nc tio ne d f

or fi ling a law su it

c ha lle ng ingF ou tz’ s e nti tl e m e nt t o w o r k e rs ’ c omp e ns a tio n b e ne fi ts w he n th e fa c ts k no wn to i t c le a rl y established that she ha d suffe red a compensa

ble injury . SORM’s second issue is overr uled. F. TheTria l Co ur t’

s M on e tar ySa nc tio ns
. The trial court sanctioned SORM $100,000. I t or dere d SORM to pay $90,000 to the District Clerk of J eff

erson County for the use and benef it of the Texas Ba

r F oundation and to pay

$10,000 to Foutz. SOR M complains that the pay ment to Foutz is not authorized by Chapter 10, that the pay ment to the district clerk f or the use a

nd benef it of the Texas Ba

r Foundation violates the Texas Constit ution, and that the sanc tions orde r does not justify the amount awa rded. Foutz c oncede s that it w a s im pr op e r f or the tr ia l c ourt

to o rd e r t he pa y me nt t o h e r. We n e e d n ot a dd re ss t he pr op ri e ty of the $9 0, 00 0 pa

y me nt be c a

us e we a g re e wi th SORM that the tr ia l c ourt fa ile d to e xpla in t he ba sis for its dec ision to i mpose a $100,000 sanc tion. Th e on ly re str ic tio n o n th e a mou

nt t hat may

be a sse sse d a s a

sa nc tio n und e r C ha

pte r 1 0 is that it must be li mited to what is sufficient to dete r re petition of the conduc t or compar able c onduct by others similarly

situated. Low , 221 S.W .3d at 620. The Te x as Supreme Court ha s held that trial courts must explain how they deter mined that a par

ticular sanc tion meets this criteria. Id. The trial court did not provide its rea soning f or asse ssing a

$100,000 sanction in its oral comments at the show ca use hea ring or in the sanc tions order. When a s an ct i on is assessed without providing the basis for c alculatingthe amount, t h e sanction constitutes an impermissible ar bitrary fine. See St romb e rg e r v . Tu rle

yLaw F irm , 2 5 1 S. W. 3 d

2 2 5 , 2 2 6

- 2 7 ( T e x. A p p
. — D a ll a s 2 0 0 8 , n o p et.). Be cause the trial cour

t did not provide a basis for its calculation, we cannot a ffirm its sanction. SORM’ s f

ourt h is su e is s us ta ine d. We r e ve rs e the $1 00 ,0 00 sanc tio n a sse sse d a g a ins t 4 SORM and remand this ca se to the trial cour t for fur ther proc eeding s. T h e t ri al co urt judg e has retire d since this trial. SORM is, there fore , entitled to a new hear ing. Be cause we have af firmed theL at er in its re ply

bri ef , S ORM r ep resent ed to t

his c ourt that “ ex

per t t es tim ony

s upporte d SO RM’ s the ory that Fout z’ s injur

y 5 resulted from

a s trin g o f e ve n t s an d no t just on e” and cited Dr. Joh nsto ne’s depo sition testim on y . In a letter brief, SORM cha ra ct er iz ed Dr . J ohnst one as “ Foutz ’s ow n e xper t” de spi te the f

ac t that he w as the I. M.E. doc tor and that SO RM w as re spons ible f or th e I.M.E. SORM th en repeated its contenti on that Dr. John ston e testif ied in his deposit ion that Fou tz’s injury arose f rom three se p ar at e e ve n t s, n o to n e s i n gl e ca u se
. S i mil ar l y, i n i t s p r i n ci p al b r i ef, S O R M r ep r es en t ed t o th i s c o u r tth at “F o u t z’ s me n t al

- t r au ma injur y w as not com

pens abl e b ecau se, u nder

he r ow n e xper t w itne ss ’s te st im ony , he r i njury w as c aus ed by

m ulti ple e v ent s. ” T he re cor d re f er enc e f or t his te st im ony

w as to Dr . J ohnst one’ s depos iti on.

15 trial court’ s determination that SORM filed a fr i v o l o u s suit, that hearing shall be limited to a deter mination of the appropr iate sanc tion. W e re spectfully direc t the trial court’ s attention to Low , 221 S.W .3d at 620-21 & n.5 for a d es cr i p t i o n o f the potential re levant fa ctors to consider when assessing any

sanction. I V. Other Issues Reg rettably , SORM’s conduct bef ore this cour

t has not been in star

k contra st to S ORM’s conduct be fore the trial cour t. SORM provided this court with inaccur ate de scriptions of key testimony . SORM’s reply brief a ccuse d Foutz of mischara cter izi ng the t estimony when she said that there was no evidenc e to support SORM’s pleading s. To support this alleg ation, SORM represe nted that Dr. Johnst one testified in his deposition that three se parate eve nts acc umulated to cause Foutz’s mental-tra

uma injury

. As noted pr e viously , Dr. Johnst one neve r testified that F outz’s condition was

5

cause d by

three events b u t repeatedly testified that her

injury was the r esult of one ev ent

. Dr. Johnst one did testify

that three elements c ontributed to her injury , but element is not sy nony mous with event and w hen his complete answer – which we have quoted in its entirety – is read, it does

n o ts u p p o rtS O R M ’ s c h ar a c t e r i z a t i o no f t h a tt e s t i m o n y. SORM a ls o r e p r e s e n te d to th is c o u rt th a t D r
. Jo h n s to n e c h an g e d h is te s ti mo n y at trial by te sti fy ingthat F ou tz’ s in

jur y wa s c a us e d b y on e lon g s tr etc h la sti ngse ve n o r e ig ht h ours . SO RM did not contend at the s how cause hearing that Dr. J ohnstone had chang ed his testimony

. Perhaps that is be cause , when SORM aske d Dr. J ohnstone during his deposition if more than one a spect or incident re sulted in Foutz’s P.T.S .D. diag nosis, he responde d:

Okay . L et me see if Ican a nswer that with the best clarity Ican. There was a

n incident that happe ned in her work; and the inc ident involved h e r c a u g h tup in i t fo r a m att e r o f ho ur s , actua lly . She was – by the time she g ot home, it was 20 hours a fter she had gone to wor k. So, this occur

red ne ar the end of a shift; but she was c aug ht up in it having to de al with aspec ts of it for quite a long time – being debrie fed by supervisors, doing paper work that’s involv ed , b eing16

informed that the ma

n had died, and probably lots of differ ent elements and lots of differ ent fa ctors there. I ’m not saying she had to have this, thi s, and this for it to have been a traumatic e vent, but Iwas – I was takingparticula

r note of those particular three elements that we re the re – or that she repor

ted wer e there , but I ’m not saying if y ou only

had two of t hose t hat i t could be c onfirmed that it wasn’ t her be ing c aug ht up in a tr a umatic str e ss. She wa s c a ug ht u p in a tr aum atic str e ss a c c or din g to my understandingof the wor k experience that she had ( emphasis adde d).
D r
. J o h n s t o n e ’ s d e p o s i t i o nan s w e r i s c o n s i s t e n tw i t h h i s t r i a l t e s t i m o n y. The discr epanc ies betwe en Dr

. J ohnstone’s deposition te stimony and SORM’s description of it are troublesome. Acc ording ly , a separate show ca use orde r will be issued to aff ord SORM the opportunity

to addre ss this i ssue. V. Holding The trial c ourt’s sanc tion order is af firmed in part and reve rsed and rema nded in par

t. That part of the order

finding that SORM viol ated Chapte r 10 by filing a fr i v o l o u s lawsuit is affirme d. Th a t pa rt of the or de r a sse ssi nga

$1 00 ,0 00 sa

nc tio n a g a inst S ORM is re ve rs e d, and thi s c a se is

rema nded for further proce eding s consistent with this opi nion.

RI CK STRANGE JUSTI CE J anuar y 22, 2009 Panel consists of: Wright, C.J ., M c C a l l , J. , an d

S t r an g e , J.