## NO. 12

- 20

- 00187

- CV

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

IN THE MATTER OF THE

MARRIAGE OF BLAKE ANDREW

PRATZ AND JULIE PRATZ §
§
§ APP EAL FROM THE 309TH

JUDICIAL DISTRICT COURT

HARRIS COUNTY, TEXAS

MEMORANDUM OPINION Sara Razavi Zand appeals the trial court’s order awarding sanctions in favor of Adam W. Dietrich. She presents four issues on appeal. We affirm in part and vacate and re mand in part

.

B ACKGROUND Zand represented Julie Pratz in the underlying divorce case

. Julie had a waste claim against her husband, Blake Pratz, including money allegedly spent on his girlfriend, Brittany Norwood. As a result, Zand wished to secure Norw ood’s testimony at trial. Zand claims she did
not have a service address for Norwood and that Blake’s attorney w ould not provide one. Zand was aware that Norwood had attorney representation in her own divorce action.
Zand issued two separate subpoenas to Norwood, via her divorce attorneys. The first was issued to Kelly Norsworthy and the second to Adam W. Dietr ich. Dietrich was lead counsel. After the first subpoena in October 2019, Norsworthy called Zand and told her that service was improper

u nder the Texas Rules of Civil Procedure . Zand told Norsworthy that she would not be r equired to appear at the he aring if she provided Norwood’s address. Norsworthy refused to provide Norwood’s address, citing confidentiality. Th e October hearing was ult imat ely passed. The second subpoena was issued in January 2020. Dietrich emailed Zand explaining that
service w as again improper and that he did not represent Norwood in the Pratz matter. Dietrich
then filed a motion for protection from the subpoena

. T h is January heari ng was also continued.2 On January 22, Zand fi led a descriptor information form and requested a capias be issued
for Norwood. Zand later issued a third subpoena attempting to personally serve Norwood. Norwood was eventually found and ser ved at Blake’s ad dress. It is unclear whether the capias
ever issued. Dietrich filed an objection to issuance o f the capias, motion to reconsider and vacate issuance of capias, and motion for sanctions on January 24. Norsworthy drafted the motion, but
D ietr ich was the m ovant. Zand filed a motion to compel Norwood’s appearance and a request for attorney’s fees. Following a hearing, the trial court granted the motion for sanctions and ordered Zand to pay $4,800 as a sanction. 1 The trial court specifi call y found tha t the October subpoena was groundless and issued in bad faith and that the January subpoena was gr oundless and brought for purposes of harassment. Dietrich later filed a motion to enter the order on sanctions, which the
trial court granted. Th is appeal f ollowed.

S UBPOENAS TO N ONPARTIES AND S ANCTIONS Rule 176.5 of the Texas Rules of Civil Procedure requires that a nonparty witness be personally served with a subpoena

. T EX

. R. C IV

. P. 176.5(a). If the witness is a party and is represented by an attorney of record in that proceeding, the subpoena may be served on the witness’s attorney of record. Id

. Texas Rule of Civil Procedure 13 provides, in pertinent part:

The signatures of atto rneys or parties constitute a certificate by them that they have read the pleading, motion, or other paper; that to the best of their knowledge, information, and belief formed after reasonable inquiry the instrument is not groundless and brought in bad fai th or groundless and brought for the purpose of harassm ent. ... If a pleading, motion or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, after notice and hearing, shall impose an appropriate sanction avail able under Rule 215, upon the person who signed it, a r epre sented party, or both.

T EX

. R. C IV

. P. 13. Courts shall presume that pleadings, motions, and other papers ar e filed in good faith. Id

. “No sanctions under this rule may be imposed except for good c ause, the particulars of which must be stated in the s anct ion order.” Id

. “Groundless,” for purposes of this

1 We recognize that the trial court stated, “The Court awarded sanctions. The Court did n ot mention anything about attorney’s fees.” However, the only evidence offere d at the hearing consisted of attorney’s fees. Norsworthy repeat edly stated that “we have incurred attorney’s fees.” Therefore, it appears that the award is based

on or influen ced by the attorney’s fees allegedly incurred by Dietrich’s firm.3 rule, means no basis in law or fact and not warranted by g ood faith argument for the extension, modification, or reversal of existing law. Id

. A la wsuit is groundless, as used in R ule 13, if there
is n o ar guable basis for the cause of action. Attorney Gen. of Tex. v. Cartwright , 874 S.W.2d 210, 215 (Tex. App.

— Hou ston [14th Dist.] 1994, writ denied). Bad faith involves more than poor judgment or negli gence; it involves conscious wrongdoing. Falk & Mayfie ld L .L.P. v. Molzan , 974 S.W.2d 821, 828 (Tex. App.

— Houston [14th Dist.] 1998, pet. denied). Harassment
means tha t the pleading was intended to annoy, alarm, and abuse another person. Parker v.
Walton , 233 S.W.3d 535, 540 (Tex. App.

— Houston [14th Dist.] 20 07, no pet.).
A trial court ’ s decision to impose sanctions will not be overruled on appeal unless an
abuse of di scretion is shown. Falk , 974 S.W.2d at 824. The test for abuse of discretion is “whether the court acted without reference to any guiding rules and principles,” or “whether the act was arbitrary or unreasonable.” Downer v. Aquamarine Operators, Inc. , 701 S .W.2d 238,
241

– 42 (Tex. 1985). We cannot hold that the trial court abused its di scretion in awarding sanctions if some evidence supports the tr ial court ’ s ruling. Nath v. Tex. Children ’ s Hosp. , 446 S.W.3d 355, 361 (Tex. 2014). A trial court abuses its disc retion when its decision is contrary to the only permissible view of the evidenc e. Unifund CCR Partners v. Villa , 299 S.W.3d 92, 97 (Tex. 2009) (pe r curiam). “In assessing sanctions, the trial court is entitled to consider the entire course of the litigati on.” Broesche v. Jacobson , 218 S.W.3d 267, 277 (Tex. App.

— Houston [14th Dist.] 2 007, pet. denied).

S TANDING In her first issue, Zand argues t hat Dietrich , an attorney who was not a party to the underlying divorce proceeding and who had no client in th at proceeding, lacked standing to complain about the subpoenas issued to Norwood. S pecifically, she urges that Dietrich was not
served with the f irst subpoena and was not compelled to act by the second subpoena. Zand
further contends that Dietrich was not p ersonally “affected” by the subpoenas and, therefore, had no justiciable interest in the subpoenas. Applicable Law “Standing is a constitutio nal prerequisite to maintaining suit in either federal or state
court.” Williams v. Lara , 52 S.W.3d 171, 178 (Tex . 2001). The doctrine of standing “identifies suits appropriate for judicial resolution.” Patel v. Tex. Dep ’ t. of Licensing & Reg. , 469 S.W.3d4 69, 77 (Tex. 2015). Generally, unless standing is conferred by statute, a plaintiff must possess
“an interest in a conflict distinct from that of the general public, such that the defendant ’ s actions have caused the plaintiff some particular injury.” See W illi ams , 52 S.W.3d at 178. Because standing is required for subject matter jurisdiction, it can be raised at any time, including for the first time on appeal. See Teal Trading & Dev., LP v. Champee Springs Ranches Prop. Owner s Assoc. , 593 S.W.3d 324, 331 (Tex . 2020). Analysis
Di e tr i ch sought sanctions under Rule 13 of the Texas Rules of Civil Procedure . Rule 13 provides that the signature of an attorney or a party on a pleading, motion, or other paper, constitutes a certificate by them that they have read the docume nt, that to the best of their knowledge, information, and belief, formed after reasonable inquiry , the document i s not groundless and brought in bad faith, and was not brought for the purpose of harassment. T EX

. R.
C IV

. P. 13. If Rule 13 is viol ated, the court “ upon motion or up on its own initiative, ” after notice and hearing, must impose an appropriate sanction ava ilable under Rule 215(2)(b) of the
Texas Rules of Civil Procedure upon the person who signed the document, a party that is represente d by couns el, or both. Id

. Rule 215 provides a broad array of remedies available for
sanctionable conduct , including : (1) limiting further discovery; (2) ordering a party to pay expenses or costs of discovery; (3) establishing certain facts as true; (4) p reventing a party from supporting its claims or making defenses; (5) preventing a party from introducing certain evidence; (6) striking a part or all of a party ’ s pleadings; (7) s taying the proceeding until the

court ’ s discovery order is obeyed; (8) dismis sing the c ase, either with or without prejudice; (9) rendering a default judgment; (10) holding the disobedient party in co ntempt; and (11) requiring a party or his lawyer, or bot h to pay reasonable expenses or attorney ’s fees or both. T EX

. R. C IV

. P . 215

. 2.
Unli ke other rules , Rule 13 does not limit who may file a motion for sanctions. A key
difference between a court ’ s a bility to impose sanctions under Rule 13 and Rule 215 is that under
Rule 13 , a court can impose sanctions based on its own motion. S ee T EX

. R. C IV

. P. 13, 215.1.
A nd unlike Rule 215, Rule 13 does not require a person be an actual party to the proceedings before filing a motion for sanctions. See T EX

. R. C IV

. P. 13, 215. 1

. The same rules of construction that govern the interpretation of statute s govern the interpretation of the rules of civil procedure. Norvelle v. PNC Mortgage , 472 S.W.3d 444, 44 75 (Tex. App.

— Fort Worth 2015, no pet.) . We rely on the plain meaning of the text unless a different meaning is supplied by statutory definit ion, is ap parent from the context, or the plain meaning would lead to a nonsensical or absurd result. Id. ; Lenz v. Bank of America, N.A. , 510
S.W.3d 667 , 669 (Tex. App.

— San Antonio 2016, pet. denied). We presume that the Texas Supreme Court said what it meant when it promulgated the Rules of Civil Procedure. Had the Supreme Court wished to limit who may file a motion for sa nctions under Rule 13 , it coul d have
done so. It is apparent from the Rule’s language that the Texas Supreme Court wished to expand
Rule 13 ’s protection beyond those who are part ies to the proceeding. While Dietrich was not a party to the proceeding, he w as affected by Zand’s subpoena

. As a result , b ased on the plain language of Rule 13 , we hold Dietrich had standing to bring the moti on for san ctions, and we
overrule Zand’s first issue.

M OOTNESS In her second issue, Zand urges the subpoenas were rendere d moot and could not be the
bas is for the sanctions award. A case becomes moot if a controversy ceases to exist between the parties at any sta ge of the legal proceedings, including the appeal. In re Kellogg Brown & Root, Inc. , 166 S.W.3d 732, 737 (Tex. 2 005)

. Rule 13 sanctions serve both deterrent and compensatory purposes. Scott &
White Mem ’ l Hosp. v. Schexnider , 940 S.W.2d 594, 596 (Tex. 199 6)

. Courts impose sanctions against parties filing frivolous claims to deter similar conduct in the future and to compen sate the aggrieved party by reimbursing the costs incurred in responding to baseless pleadings. Id. at 596

- 97. As a result, t he Texas S upreme Court has held that Rule 13 sanctions can survive a nonsuit.
Id. at 597. The Texas Supreme Court reasone d that it would frustrate the purpose of Rule 13 to allow a party to escape sanctions by nonsuiting his case. Id. This same logic applies t o the subpoenas issued by Zand. Simply continuing the case so that the improperly issued subpoenas are no longer active does not negate the fact that Zand
violated Rule 13 , a nd allowing a party to escape sanctions under such circumstances would
frustrate Rule 13’s purpose

. See
, e.g. , id

. R eleasing Norwood from the subpoenas does not cure the Rule 13 violation. T herefore, we conclude that the Rule 13 violation is not moot and we
overrule Zand’s second issue.6 S UFFICIENCY In her third issue, Za nd conten ds the evidence is legally insufficient to support the
sanctions award.
Standard of Review We review the imposit ion of sanctions under an abuse of discretion standard. Nath , 446

at 361; see also Unifund CCR Partner s v. Villa , 299 S.W.3d 92, 98 (T ex. 2009) ; Skepnek v. Mynatt , 8 S.W.3d 377, 380 (Tex. App.

— El Paso 1999, pet. denied). Under this standard, a
sanctions aw ard will not withstand appellate scrutiny if the trial court acted without reference to guiding rules and principles to such an extent that its ruling was arbitrary or unreasonable. Nath , 446 S.W.3d at 361. We review the eviden ce in the light most favorabl e to the trial court ’ s ruling and draw all reasonable inferences from the evidence to sustain the judgment. See Kutch v. Del
Mar Coll. , 831 S.W .2d 506, 512 (Tex. App.

— Corpus Christi 1992, no writ).
The trial court does not abuse its discretion if it bases its decision on conflicting evidence and some evidence supports its decision. Unifund CCR Partners , 299 S.W.3d at 97; see also
Nath , 446 S.W. 3d at 361 (an appellate court will not hold that a trial court abused its discreti on in levying sanctions if some evidence supports its decision). The mere fact that a trial court may decide a matter within its discretionary authority in a differe nt manner than an appellate judge in
a similar circumstance does not demonstrate that an ab use of discretion occurred. Ske pnek v. Mynatt , 8 S.W.3d 377, 380 (Tex. App.

— El Paso 1999, pet. denied) . A trial court, however,
“abuses its discretion when its decis ion is contrary to the only permissible view of probative, properly

- admitted evidence.” Unifund CCR Partners , 299 S.W.3d at 97. In reviewing sanctions orders, the appella te courts are not bound by a trial court ’ s findings of fact and conclusions of law; rather, appellate courts must independently review the
enti re record to determine whether the trial court abused its discretion. See Chrysler Corp. v.
Blackmon , 841 S.W.2d 844, 852 (Tex. 1992). Thus, the court of appeals must examine the entire
record

— not merely the trial court ’ s findings of fact and conclusions o f law

— to determine
whether the trial court ’ s sanction was appropriate

. Am. Flood Research, Inc. v. Jones , 192
S.W .3d 581, 583

– 85 (Tex. 2006). Failure to Appear and Present Evidence
We first addre ss Zand ’s argument that the evidence is legally insufficien t because Dietrich did not argue the motion at the hearing. She contends that becau se Norsworthy7 referenced and commented that the motion was her own, Dietrich failed to appear or present evidence in support of the motion.
T he motion for sanctions iden tifies Dietrich as the movant . However, Norsworthy argued the motion at the hearing

. When she made her announce ment, Norsworthy stated the following:

My name is Kelly Norsworthy. I don’t repres ent any parties here today. I’m here on my own ancillary m otion for sanctions against Ms. Zand for issuing and signing two subpoenas that were directed toward a client of mine in Montgomery County in an unrelated matter. But they were served upon me whic h is not allowed underneath the rules

– excuse me

– under t he rules. So just to clarify Ms. Zand’s statement, I’m not here representing Br ittany Norwood, I’m here on my

ow n.

Zand appears to argue that Norsworthy’s statements that she did not represent No rwood mean t that Norsworthy appear ed pro se. However, Zand repeatedly represented to the trial court that Norsworthy represent ed Norwood in the Pratz divorce , thus, Norswo rthy’s statements appear to be an attempt to counter Zand’s representations. Moreov er, al though Dietrich was the named

movant , the record refl ects that Norsworthy argu ed Dietrich’s motion in the same way any attorney argues a motion for a client. The pre mise of the motion for sanctions was that Dietrich
had no client in the Pratz divorc e action, which made service of the subpoena on his office improper. Accordingly, we reject Zand’s contention that Dietrich failed to appea r and present
evidence on the mo tion by virtue of Norsworthy’s appearance at the hearing and argument of the
motion for sanctions.
Groundless Zand further argues that the evi dence is legally insufficient to support the trial court’s finding that the subpo enas were groundless. “Groundle ss” means no basis in law or fact and not warranted by good faith argument for the e xtension, modification, or reversal of existing law.
T EX

. R

. C IV

. P. 13. Groundlessness turns on the legal merits of a claim. Dike v. Peltie r Chevrolet , Inc.
, 343 S.W.3d 17 9, 184 (Tex. App.

— Texarkana 2011, no pet.). To determine if a claim is groundless, the trial court must objectively ask whether the party and counsel made a reasonable inquiry into the legal and factual basis of the claim at the time the document in quest ion was
filed. See Loeffler v. Lytle Indep. Sch. Dist. , 211 S.W.3d 331, 348 (Tex. Ap p.

— San Antonio 2006, pet. denied). We determine whether a r easonable inquiry has been made by looking at the
facts available to the a ttorney and the circumstances that exis ted when the attorney signed and filed the document in question. See Robson v. Gilbr eath , 267 S.W.3d 401, 405 (Tex. App.

—8 Austin 2008, pet. deni ed); Elkins v. Stotts

– Brown , 103 S.W.3d 664, 668 (Tex. App.

— Dallas 2003, n o pet.). Zand contends that the subpoe nas were not groundless because she was prohibited from contacting Norwood except th rough her attorney. As a result, she urges that service of the subpoenas on Dietrich and Norsworthy was proper. The Texas Disciplin ary Rules of Professional Conduct prohi bit a lawyer from communicating with another person if the lawyer
knows the person h as legal counsel in the matter

. Tex. Disc iplinary Rules Pr of’l Conduct R. 4.02(a) , reprinted in T EX

. G OV ’ T C ODE A NN

. , tit. 2, subtit. G, app . A (West 2019 ); In re Users Sy s. Serv s . , Inc. , 22 S.W.3d 331, 334 (Tex. 1999)

. By the express language of the rul e, it does not apply to situations in which the person is represented by an attorney in a different matter. The plain langua ge of the rule prevents communication between an attorney and a represented person regarding the subject of that representation. T herefore, Zand was not prohibited from personally contact ing Norwood regarding the Pratz divorce, a matter to which she was n either a party nor represented by counsel.
R

ule 176.5 of the Texas Rules of Civil Procedure requires that a nonparty witness be

pe rsonally served with a subpoena. T EX

. R. C IV

. P. 176.5(a ). If the witness is a party and is represented by an attorney of record in that proceeding, the subpoena may b e served on the witness’s attorney of record. Id. By the R ule’s express language, ser vice upon Norwood’s attorneys was only proper if she was a party to the proceeding. However, Norwood was not a party to the Pratz divorce.
Zand also argues that she d id not have a service address for Norwood when she issued the October subpoena. She u rges that, because she could not serve Norwood via substi tuted service, she had no viable option for securing Norwood’s testimony other than service through
Norwood’s at t orney. According to Zand, it was reasonable for her to believe that she needed to
dir ect all communications through Norwood’s attorney, Norwoo d’s attorney would accept service, and Norwood’s address would be disclosed if personal service was required. S h e further urges that Dietrich’s office represented Norwood in the Pratz divorce. She asserts that the firm’s billing statements referencing va rious communications “with client” support her claim. However, Zand ignores the fact that Norwood was never a p a rty to the Pratz divorce case. She was never named in a pleading. Furthermore, when Zand completed the Descriptor Information Form to request Norwood’s arrest, she crossed out the word “Respondent” and wrote in9 “Witness.” Dietrich’s firm did represent N orwood, but not in the Pratz divorce. Zand was well
aware of that fact. As a result, the trial cou rt could reasonably conclude that the subpo enas issued to Norsworthy and Dietrich were groundless.
Bad Faith and Harassment
Zand also challenges the lega l sufficiency of the evidence to support the trial court’s finding that the October su bpoena was iss ued in bad faith and the January subpoena w as issued for the purpose of harassment. A trial court is to presume that pleadings, motions, and other papers a re filed in good
faith. Cypress Creek EMS v. Dolcefino , 548 S.W.3d 673, 694 (Tex

. App

. — Houston [1st Dist.] 2018, pet. denied). Bad faith is t he conscious doing of a wrong for dishonest, discriminatory, or malicious purposes; bad faith does not exist when a party merely exercises bad judgment or is negligent. Thielemann v. Kethan , 371 S.W. 3d 286, 294 (T ex. App.

– Houston [1st Dist.] 2012, pet. den ied). A document is filed for the purpose of harassment if it is filed with the intent to annoy, alarm, and abuse another person. See Thielemann , 371 S.W.3d at 294. In deciding whether a party filed a document in bad faith or for the purpose of harassment, the trial court must measure the party ’ s conduct and examine the facts available to the party at the time the

re levant document was signed. See Gomer v. Davis , 419 S.W.3d 470, 48 1 (Tex. App.

– Houston [1st Dist.] 2013, no pet.). Thus, the court must co nsider the acts or omissions of counsel, not merely the legal merit of a pleading or motion. See id

. at 478

- 81 ; see also Pa rker v. Walton , 233 S.W.3d 535, 539 (Tex. App.

– Houston [14th Dist.] 2007, no pe t. ).
Zand contends there is no evidence she issued the Octobe r subpoena in bad faith. She urges that the only evidence supporting the finding is “Norsworthy’s ipse dixit bel ief that Zand issued the subpoena solely to get Norwood’s address.” Zand urges t hat Norsworthy’s beliefs and opinions are legally insufficient and amount to mere speculation. She admits that she did not
have a n address for Norwood, which is why she attem pted to serve Norwood through her attorney. However, she urges that this “amou nt s to poor judgment or a mistake of law” instead
of bad faith.
But Zand ’s argument ignores the evidence admitted at the hearing. The evidence showed
that Norsworthy immediate ly contacted Zand after receiving the October subpoena to inform her
it was una ut horized. In response, Zand told Norsworthy that she would not have to appear if she would give Zand Norwood’s address. When Norsworthy refused, Zand accused her of being10 eva sive and violating an unspecified section of the Texas Penal Code. Based on th is evidence,
the trial court could have reasonably found that Za nd purposefully issued the October subpoena
with an ulterior motive

— obtaining a nonparty witness’s address by pre ssuring her attorney in a
different case

— which amounts to bad faith

. See Am. Fis heries, Inc. v. Nat’l Honey, Inc. , 585 S.W.3d 491, 506 (Tex. A pp.

— Houston [1st Dist.] 2013, pet. denied ). Zand also argues that there is no evidence she issued the January subp oena for the purpose of harassment. She urges that the only evidence supp ort ing the finding is “Norsworthy’s
claim that Zand had Norwood’s cor rect address as early as January 22[nd].” Norsworthy stated:

At least as of before January 22nd, 202 0 , which wa s nine days before today’s trial date , Ms. Pratz and Ms. Zand were purporte dl y aware of an accurate address of Ms. Norwood that they provided i n the descriptor information form; therefore, it would have been unnecessary for them to attempt to serve an inva lid subpoena in our office.

Zand contends that there is no evidence that sh e had Norwood’s address at the time the subpoena
was issued on Janu ary 10 or that she intended to harass Dietrich. However, Zand decided to issue a second subpoena to Norwood’s at torneys after she was informed in October that service on a nonparty’s attor n ey was improper. By this point, Zand was fully aware that service on Norwood’s attorneys violated the Rules of Civil Procedure. Furthermore, Norwood’s attorneys resisted service of the October subpoena, and Zand had no reason to believe they would accep t the January subpoena. This evidence alone supports the trial

cou rt’s finding that the January subpoena was issued for the purpose of harassment. See
Thielemann , 371 S.W.3d at 2 94

. Conclusion Because the evidence was sufficient to support the trial cou r t’s findings that both subpoenas were groundless , the October subp oena was issued in bad faith, and the January subpoena was issued for the purpose of harassment, we overrule Za nd’s third issue.

A MOUNT OF S ANCTIONS In her fourth issue, Zand contends Diet rich did not prove his entitlement to attorney ’s
fees as a sanctio n. Spe cifically, she urges Dietrich could not recover attorney ’s fees on his own
behalf and hearsay is the onl y evidence of attorney ’s fees. Dietrich urges that the award is n ot11 actually a ttorney ’s fees; instead, he argues the attorney’s fees are merely evidence to support an appropriate sanction. He further contends that the amount of such fees is supported by sufficient
evidence. Regarding available sanctions, Rule 13 incor porates Texas Rule of Civil Procedure 215, which lists permissible discovery sa nctions. T EX

. R. C IV

. P. 13; s ee Bradt v. Sebek , 14 S.W.3d 756, 76 2 (Tex. App.

— Houston [1st Dist.] 2000, pet. denied). That rule permits a party to recover reasonable expenses , including a ttorney ’s fees, caused by the sanctionable conduct.
T EX

. R. C IV

. P. 215.2(b)(8). Although the trial court has the discretion to impose a sanctions award, an appellate court must review the propriety of the award to ensure that there is a “ direct relati onship between the particular offensive conduct and the sanction i mposed, and the sanction must not be excessive
vis

- à

- vis that conduct.” See CHRISTUS Health Gulf Coast v. Carsw ell , 505 S.W.3d 528, 540 (Tex. 2016); see also Low v. Henry , 221 S.W.3d 609, 61 4 (Tex. 2007) ; TransAmerican Nat. Gas Corp. v. Powell , 811 S.W.2d 913, 916 (Tex. 1991). In order to satisfy the first part of this test, the sanction must be directed against th e abuse and toward remedying the prejudice caused to the innocent party; in par ticular, the court must attempt to determine who was responsible f or the sanctionable conduct

— either the party or the attorney, or both

— and only visit an appropriate sanction up on the responsible person. Powell , 811 S.W.2d at 9 17; see also Am

. Flood Resear ch,
Inc. , 192 S.W.3d at 583. To satisfy the second part of the tes t, the court should ensure that the punishment “fits the crime,” and that the sanction is “no more severe than necessary to satisfy its legitimate purposes[.]” W erley v. Cannon , 344 S.W.3d 5 27, 532 (Tex. App.

— El Paso 2011, no pet.); see also Powell , 811 S. W.2d at 917. Zand urges throughout her appeal that the sanctions awarded are fee

- shifting attorney’s
fees. However, the trial court expressly stated that it was not awarding attorney’s f ees as sanctions in response to Zand’s objection to the order : “Th e Court awarded sanctions. The Court did not mention anything about attorney’s fees.” In addition, Norworthy argued to the trial court that she was not seeking attorney’s fees as a sanctio n. Instead, she urged that the amount of fees incurred were an ap propriate basis for sanctions:

Judge, I can clarify that. Your Honor, we’re asking for sanctions and sanction [ s] in a Rule 13 case has to be connected to the behavior that is sanctionable. They can’t be excessive sanctions, they need to be related back. I think the amount of attorney ’ s fees that have been expended in this case,12 are a true and accurate reflection o f what would be an appropri ate remedy for sanctions in this matter.

. . . And, your Honor, again, I’m not attempting to prove attorney’s fees. I ’m attempting to show what would be an appropriate sanction.

Therefore, it appears that while the amount of at torney’s fees incurred w as i nfluential in determining the sanctions award, the award is not true fee

- shifting. Rule 13 authorizes the imposition of the sanctions listed in Rule 215.2(b). T EX

. R. C IV

. P. 13. The only monetary sanctions allowed by Rule 215 .2(b) are for the opposing p arty ’ s expenses, attorney ’ s fees, and
taxable court costs. T EX

. R. C IV

. P. 215.2(b). F or the sanctions award to be authorized in this case, it must be based on attorney’s fees. See State Office of Risk Mgmt. v. Foutz , 279 S.W .3d
826 , 830

- 31 (Tex. App.

— E astland 2009, no pet. ). Therefore, we review the e vidence to determine if it is sufficient to support the $4,800 attorney’s fees award. In Texas, an attorney acting pro se cannot recover attorney’s fees because those fees a re not “incurred.” See Jackson v. State Office of Admin. Hearings , 351 S.W.3d 290 , 299

- 300 (Tex. 2011). Thus, Zand argues that Dietrich is barr ed from recovering attor ney’s fees. Dietrich urges that Norsworthy prosecuted the motion for sanctions on his behalf. Therefore, he contends he was not acting pro se and is not barred from re covering attorney’s fees.
B efore a court may exercise its disc retion to shift attorney ’s fees as a sanction, there must
be some evidence of reasonableness because without su ch proof a trial court cannot determine
that the sanction is “no more severe than necessary” to fairly compensate the prevailing party.
PR Invs. & Specialty Retailers, I nc. v. State , 251 S.W.3d 472, 480 (Tex. 2008); see also Low , 221 S.W.3d at 620 (“[A] sa nction cannot be excessive nor should it be assessed without appropriate guideline s.”). “Consequently, when a party seeks attorney ’s fees as sanc tions, the
burden is on that party to put forth some affirmative evidence of attorney ’s fees incurred and
how t hose fees resulted from or were caused by the sanctionable conduct.” Carswell , 505 S.W.3d

at 540. Because all fee

- shifting situations require re asonableness , the attorn ey’s fees sanctions award must be supported by sufficient evidence

. Nath v. Tex. Childr en ’ s Hosp. , 576 S.W.3d 707, 709

– 10 (Tex. 2019)

. The evidence at the hearing inclu ded a billing invoice from Dietrich’s firm regarding “Norwood, Brittany

– Subpoena.” T he invoice totaled $4,991.25 in fees incurred as a result of13 the January subpoena. How ever, the invoice appears to be directed toward Norwood, not Dietrich. Norsworthy represented to the trial court that her firm had not charged N orwood for
those fees. In addition, it includes entries for “telephone conference with client” as well as

entr ies for “office conference with Attorney Adam W. Dietrich” and “office conference with Attorney Kelly Norsworthy.” The delineation between “clie nt,” “Attorney Adam W. D ietrich,” and “Attorney Kelly Norsworthy” shows that Dietrich was not actually the clie nt who incurred the fees at issue. Therefore, it does not appear as if Dietrich w as represented by counsel or incurred fees as a result of any s uch representation. Fur thermore, it was repeatedly stressed that none of the fees were incurred by Norwood and that the motion was not brought on her behalf. As a result, the evidence is insu fficient to support the $4,800 attorney’s fees in sanctions

awa rded to Dietrich. Thus, we vacate the attorney’s fees award and remand the case for a
redetermination of attor ney’s fees. See Rohrmoos Venture v. UTSW DVA Healthcare, LLP , 578 S.W.3d 469, 506 (Tex. 2019). We sustain Zand’s fourth issue.

D ISPOSITION
Ha ving overruled Zand’s fir st, second, and third issues and sustained Zand’s fourth issue,

we vacate the portion of the judgment granting $4,800 in sanctions and remand the case to the
trial cour t for a redetermination of the sanctions award consistent with this opinion. In all other respects, we affirm the trial court’s judgment.

B RIAN H OYLE Justice Opinion deliv ered December 21 , 2021. Panel consiste d of Worthen, C.J., Hoyle, J., and Neeley, J

.

## COURT OF APPEALS

TWE LFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

DECEMBER 21 , 2021

NO. 12

- 20

- 00187

- CV

IN THE MATTER OF THE M ARRIAGE OF B LAKE ANDREW PRATZ AND JULIE PRATZ

Appeal from the 309th Dist rict Court
of Harris County, Texas (Tr. Ct.No. 2018

- 76641 )

THIS CAUSE came to be heard on the appellate record and brief s filed herein, and the same being considered, it is the opinio n of this court that there was no error in the judgment.
It is therefore ORDE RED, ADJUDGED and DECREED that the judgment of
the court below gr anting $4,800 in sanctions be vacated and the case be remanded to the trial
court for a redetermination of the sa nctions award consistent with this opinion. In all other respects, we affirm the trial court’s judgment ; all costs of court are hereby assesse d against the party incurring the same, for all of which execution may issue; and that this decision be certified
to the court below for observance.
B rian Hoyle , Justice

. Panel consisted of W orthen, C .J., Hoyle, J., and Neeley, J.