in the Interest of K.A.R. ( 2005 )

Affirmed as Modified and Majority and Dissenting Opinions filed August 30, 2005

Affirmed as Modified and Majority and Dissenting Opinions filed August 30, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-03-00970-CV

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IN THE INTEREST OF K.A.R.

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On Appeal from the County Court at Law No. 2

Galveston County, Texas

Trial Court Cause No. 02FD1637

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D I S S E N T I N G   O P I N I O N

On April 27, 2003, Lynne Clarke=s client, Kenneth Richardson, committed suicide. In the months preceding his death, Kenneth was involved in an extremely distressing experienceClitigation over the custody of his minor child, K.A.R. Although the record indicates that Kenneth=s state of mind during the pretrial proceedings was at best fragile, the trial court entered an order sanctioning Clarke and Kenneth, concluding that A[u]nilaterally canceling the court-ordered mediation without adequate notice@ constituted a Abad faith litigation practice[],@^[1] and holding them jointly and severally liable for the sanctions imposed.

It is well established under Texas law that a trial court has the inherent power to impose sanctions in an appropriate case. See, e.g., In re Bennett, 960 S.W.2d 35, 40 (Tex. 1997) (AA court has the inherent power to impose sanctions on its own motion in an appropriate case.@); Kings Park Apartments, Ltd. v. Nat=l Union Fire Ins. Co. of Pittsburgh, 101 S.W.3d 525, 541 (Tex. App.CHouston [1st Dist.] 2003, pet. denied)(recognizing the court=s inherent power to sanction); Kennedy v. Kennedy, 125 S.W.3d 14, 19 (Tex. App.CAustin 2002, pet. denied) (same); In re N.R.C., 94 S.W.3d 799, 808 (Tex. App.CHouston [14th Dist.] 2002, pet. denied) (same); Kutch v. Del Mar College, 831 S.W.2d 506, 509B10 (Tex. App.CCorpus Christi 1992, no writ) (same); see also Chambers v. NASCO, Inc., 501 U.S. 32, 63 (1991) (recognizing inherent power of court to sanction bad faith litigation practices, even in the face of a statute or a rule); Eichelberger v. Eichelberger, 582 S.W.2d 395, 398B99 (Tex. 1979) (noting the court=s inherent power Aexists to enable our courts to effectively perform their judicial functions and to protect their dignity, independence and integrity@).  Courts, however, also recognize there are established limits to the trial court=s inherent power to sanction.  The power should be used sparingly, and the sanctions must be just and appropriate.  See Shook v. Gilmore & Tatge Mfg. Co., 851 S.W.2d 887, 891B92 (Tex. App.CWaco 1993, writ denied); Kutch, 831 S.W.2d at 510.  In this case, the majority=s analysis fails to recognize the limitations of the trial court=s inherent power to sanction and suggests that a violation of a court order is, per se, a bad faith litigation practice.^[2] Because there is no evidence in the record that Clarke engaged in any bad faith litigation practices during the course of this suit which significantly interfered with the trial court=s exercise of its core functions, I respectfully dissent from the majority=s affirmance of the sanctions order against Clarke.

A.        The Court=s AInherent Power to Sanction@

A court=s inherent powers are those which it may call upon to aid in the exercise of its jurisdiction, in the administration of justice, and in the preservation of its independence and integrity.  Eichelberger, 582 S.W.2d at 398.  In Kutch, the Corpus Christi appellate court expounded upon this power, stating as follows:

Texas Courts have the inherent power to sanction for abuse of the judicial process which may not be covered by rule or statute.  This power includes the power to sanction appropriately for failure to comply with a valid court order incident to one of the core functions of the judiciary.

831 S.W.2d at 510.  Relying on an opinion from the Court of Criminal Appeals, the Kutch court identified the following as Acore functions of the judiciary@:  hearing evidence, deciding issues of fact raised by the pleadings, deciding questions of law, entering final judgment and enforcing that judgment.  Id. (citing Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239B40 (Tex. Crim. App.1990)).  Recognizing the inherent power to sanction is necessarily limited, the Kutch court concluded that the power exists only to the extent necessary to Adeter, alleviate, and counteract bad faith abuse of the judicial process, such as any significant interference with the traditional core functions of Texas courts.@  Id.; N.R.C., 94 S.W.3d at 810 n.7 (noting the inherent power to sanction exists Aonly@ to the extent necessary to deter, alleviate and counteract bad faith litigation practices); Toles v. Toles, 45 S.W.3d 252, 266B67 (Tex. App.CDallas 2001, pet. denied).  Also acknowledging the Aamorphous nature@ of the power and its potency, the court stated it should be used sparingly.  Kutch, 831 S.W.2d at 510.  Consequently, courts have determined that there must be some evidence in the record that the conduct complained of significantly interfered with the court=s exercise of one of its core functions to uphold a sanction imposed under this inherent power.  Kennedy, 125 S.W.3d at 19; McWhorter v. Sheller, 993 S.W.2d 781, 789 (Tex. App.CHouston [14th Dist.] 1999, pet. denied); Kutch, 831 S.W.2d at 510.^[3]

1.      Standard of review

We review a trial court=s order imposing sanctions under an abuse of discretion standard.  Phillips & Akers, P.C. v. Cornwell, 927 S.W.2d 276, 279 (Tex. App.CHouston [1st Dist.] 1996, no writ); see TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991).  A failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion.  Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). 

The findings of fact made by a trial court to support its sanction order are not to be treated on appeal as findings made under Texas Rule of Civil Procedure 296, which are reviewed for legal and factual sufficiency.  Mills v. Ghilain, 68 S.W.3d 141, 145 (Tex. App.CCorpus Christi 2001, no pet.) (citing IKB Indus. (Nigeria) Ltd. V. Pro-Line Corp., 938 S.W.2d 440, 442 (Tex. 1997)); see also Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 852 (Tex. 1992) (concluding in death penalty sanctions case that findings are helpful, but such findings must be tied to the appropriate legal standard and supported by the record). Rather, findings filed by the trial court following an imposition of sanctions are utilized only to assist us in deciding whether the trial court abused its discretion.  Mills, 68 S.W.3d at 145.  We review the entire record in making our determination.  Id.

In this case, the trial court abused its discretion by sanctioning Clarke because there is no evidence in the record that by failing to attend the mediation, Clarke engaged in bad faith litigation practices nor evidence that this conduct significantly interfered in any way with the court=s exercise of its core functions.^[4]  See, e.g., Chrysler Corp., 841 S.W.2d at 852B53 (concluding there was no evidence to support death penalty sanction); Kennedy, 125 S.W.3d at 19 (concluding there was no evidence in the record to support the court=s sanctions order);  Kings Park, 101 S.W.3d at 541 (stating the court=s sanctions must be supported by some evidence of significant interference with core functions); see also N.R.C., 94 S.W.3d at 810 n.7 (concluding that failure to pay ad litem fee was not sufficient bad faith abuse of the judicial process to justify the sanction).  For this reason, sanctions against Clarke are improper and the court=s order imposing them should be reversed.

2.      Failure to attend the mediation

As noted, the trial court concluded that by A[u]nilaterally canceling the court-ordered mediation without adequate notice,@ Clarke engaged in bad faith litigation practices. The evidence in the record regarding the mediation reflects the parties had scheduled it for Monday, March 31, 2003. In Clarke=s affidavit attached to her motion for new trial, she averred that on March 24, 2003, Edwin J. Terry, Kenneth=s ex-wife=s attorney, telephoned her and stated that although he had learned Kenneth was considering non-suiting his case, Terry=s client, Lisa, still wanted to mediate.  Clarke replied that she had not been in touch with Kenneth, but would contact him.  On March 28, Lisa filed her counter-petition to modify, requesting Kenneth=s access to and possession of K.A.R. be conditioned upon Kenneth=s continued participation in family counseling. Prior to March 28, Clarke=s attempts to contact Kenneth had been unsuccessful, but she spoke with him on that date and during their conversation Kenneth told Clarke he was reluctant to attend the mediation.  Clarke=s affidavit states she explained the importance of attending the mediation to Kenneth and the two agreed to speak about the matter again over the weekend.  She also advised Kenneth not to nonsuit his case, and discussed Lisa=s counter-petition with him. 

Two days later, on Sunday, March 30, when Clarke again spoke with Kenneth, he adamantly refused to attend the mediation.  Clarke attempted to notify Terry of Kenneth=s refusal to attend by faxing a letter to his office and, as noted by the majority, Terry=s legal assistant received the faxed letter at 12:04 p.m. that afternoon.  The letter also advised Terry that Kenneth was non-suiting his petition.  In addition to contacting Terry, Clarke left messages with the mediator and McCumber, K.A.R.=s ad litem, stating that she and Kenneth would not be attending the mediation. 

From this evidence, the majority concludes that Aunder the applicable standard of review,@ it is legally sufficient evidence to Asupport the trial court=s determination that Kenneth and Clarke unilaterally canceled and failed to attend a court-ordered mediation without adequate notice.@^[5]  But here, the trial court merely stated conclusorily that the various actions constituted bad faith litigation practices and Kenneth and Clarke were responsible for those actions.  In its review, the majority affirms the trial court=s order merely relying on the fact that Clarke did not appear at the mediation as ordered and, as stated by the majority, failing to offer any explanation or excuse for her failure to attend Anotwithstanding her client=s refusal to do so.@  Under the majority=s analysis, the fact an attorney failed to attend a mediation is the extent of the Aevidence@ necessary to support a sanctions order. 

The record evidence reflects, however, that as soon as Clarke was aware of Kenneth=s unequivocal refusal to attend, she attempted to notify those involved with the mediation.  Although she was unable to directly contact each party, that fact is nothing more than a timing issueCshe learned of Kenneth=s refusal to attend on a Sunday.  And, Terry did in fact receive notice that Clarke and Kenneth would not be attending the mediation.  This conduct can hardly be said to constitute evidence of bad faith litigation practices.  Further, Clarke=s affidavit reflects that she advised Kenneth on the importance of attending the mediation, but he refused to attend nonetheless.  An attorney can do nothing more in such a situation except withdraw from the representation.  Clarke filed her motion to withdraw on Tuesday, April 1, the day after the scheduled mediation.

The majority attempts to strengthen its analysis by discussing Clarke=s failure to attend the mediation as if it were a subversion of the judicial process, describing the conduct as a Ausurpation@of the trial court=s role.  Regardless of the majority=s overstatement, the fact remains the conduct sanctioned was Kenneth=s and Clarke=s failure to attend the mediation, and there is no evidence that this failure significantly interfered with the trial court=s core functions.   Indeed, the trial in this case was set to begin only a few days after the scheduled mediation and, typically, a trial is set on the court=s docket months before the scheduled mediation; therefore, it is doubtful that missing the mediation could have significantly interfered with the trial court=s functions.  Moreover, the record is devoid of any changes to the trial court=s docket necessitated by the failure to attend the mediation. Without some evidence of how the complained of conduct interfered with the court=s exercise of its core functions, a reviewing court is forced to speculate as to the basis for the court=s decision to impose sanctions.^[6]  See Toles, 45 S.W.3d at 267.  And, although sanctions may be levied in part because of the disobedience of a court order, without evidence that the disobedience significantly interfered with the trial court=s core functions, we should reverse sanctions imposed under the trial court=s inherent power.  See id.^[7]

Further, the majority=s characterization of this dissent as condoning the Ausurpation of the court=s role and the failure to comply with the court=s order@ is simply unfounded.  The need for attorneys to comply with valid court orders cannot be questioned.  Nonetheless, the law also requires restraints in the use of the trial court=s inherent power to sanction.  Namely, that a trial court=s sanctions order imposed under its inherent power must be supported by some evidence of significant interference with its core functions.  See Kings Park, 101 S.W.3d at 541.  To conclude that there is no evidence that Clarke=s violation of the mediation order significantly interfered with the trial court=s exercise of a core function is not an endorsement of Clarke=s violation of the mediation order; rather it is a recognition of the limits that Texas law sets on the use of the inherent power to sanction.  See Onstad v. Wright, 54 S.W.3d 799, 809B10 (Tex. App.CTexarkana 2001, pet. denied) (AA sanction for failure to obey a court order must always be appropriate to the circumstances of the case.@).

The inherent power to sanction is also limited by the fact the sanctions must be just and appropriate.  Shook, 851 S.W.2d at 892; Kutch, 831 S.W.2d at 510.  The Ajust and appropriate@ standard requires the sanctions correlate to the sanctionable conduct and that the sanctions not be excessive.  Shook, 851 S.W.2d at 892.  These requirements reflect a need to balance the court=s administration of justice, and the preservation of its integrity and independence, with the rights of litigants.  See id. at 891. To conclude, as the majority suggests, that the violation of a court order is a per se significant interference, ignores these safeguards surrounding use of the inherent power and expands it unnecessarily.^[8]  In an appropriate case, failing to attend a mediation could rise to the level of significant interference with a trial court=s core functions.  Here, however, there is simply nothing in the record to show how missing the mediation significantly interfered with the court=s core functions.  Accepting, as the majority suggests, the violation of a court order as per se significant interference with the court=s core functions is contrary to established precedent.  See McWhorter, 993 S.W.2d at 789.

The majority also remarks that the trial court=s sanctions order is bolstered by the fact Clarke became aware of Kenneth=s desire to miss the mediation earlier in the week; however, this assertion is not supported by the record.  Clarke=s affidavit states that Kenneth commented about his reluctance to attend on Friday, but the two agreed to discuss it further over the weekend.  Clarke also stated she became aware of Kenneth=s unequivocal refusal to attend the mediation on Sunday, the same day she contacted Terry=s office.  Moreover, Clarke was under an ethical obligation not to disclose her client=s initial reluctance regarding the pending mediation because such a disclosure, particularly in a family law case, could be used offensively against Kenneth either in trial or in the mediation.

In discussing options available to Clarke, the majority suggests that Clarke could have attended the mediation without Kenneth.  Although it is true that Clarke made a conscious decision to be absent from the mediation, it is also true that her attendance without Kenneth would have been futile.  She could not agree to any settlement without her client=s authorization.  An integral aspect of mediation is the presence of the parties and, while perhaps not the most compelling ground to miss the mediation, Clarke had no reason to be present once Kenneth refused to attend. Moreover, whether we should affirm the trial court=s order imposing sanctions is dependent on the evidentiary support for the order in the record, not on feasible options available to the party sanctioned.

In sum, the violation of a court order should not be per se sanctionable conduct, as concluded by the majority; record evidence must support the court=s order.  See Toles, 45 S.W.3d at 267.  Considering the entire record, there is no evidence that Clarke=s conduct in failing to attend the mediation significantly interfered with the trial court=s core functions such that it rose to the level of a bad faith abuse of the judicial process.  See McWhorter, 993 S.W.2d at 789 (reversing sanctions against attorney based on legally insufficient evidence of significant interference with court=s exercise of its core functions); Kutch, 831 S.W.2d at 510.

B.     Other Sanctionable Conduct

Briefly, regarding Kenneth=s failure to attend the court-ordered psychological evaluation, it is questionable that sanctioning Clarke for Kenneth=s conduct meets the Ajust and appropriate@ requirement for imposing sanctions.  The blame for Kenneth=s conduct and accompanying sanction must fall squarely with Kenneth alone rather than jointly with Clarke. The record evidences that Kenneth was emotionally fragile, and the very best Clarke, or any attorney, could do would be to sternly advise the client to complete the evaluation. But, an attorney cannot force the client to complete the evaluation.  Under these circumstances, sanctioning Clarke for her client=s decision is not Ajust@ because it holds her responsible for the client=s willful and independent behavior.  Even if Kenneth=s failure to complete his evaluation significantly interfered with the trial court=s core functions and there was evidence of this in the record, there is no evidence Clarke was responsible for his failure.

In conclusion, the evidence in this case does not show that Clarke=s conduct significantly interfered with the trial court=s exercise of its core functions.

For the foregoing reasons, I would reverse the trial court=s sanctions order as applied to Clarke.

/s/        Eva M. Guzman

Justice

Judgment rendered and Majority and Dissenting Opinions filed August 30, 2005.

Panel consists of Chief Justice Hedges and Justices Frost and Guzman.  (Frost, J., majority.)

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^[1]  The trial court also stated in the sanctions order that failure to notify opposing counsel of Kenneth=s Adesires@ to dismiss his cause of action, Kenneth=s failure to complete the court-ordered psychological evaluation, and failing to appear at trial constituted bad faith litigation practices.  As keenly noted by the majority, Athere are potential problems with sanctioning Kenneth and Clarke for some of this conduct.@  The majority then addresses only the failure to attend mediation as conduct allegedly sufficient to support the sanctions order, and further, in a footnote, merely states there is sufficient evidence in the record that Kenneth failed to complete the court-ordered psychological evaluation.  Although I conclude there are Aproblems@ in sanctioning Clarke for any of this conduct based on the record evidence, I limit my discussion, as did the majority, to the failure to attend the mediation and briefly address the failure to attend the court-ordered evaluation. 

^[2]  Ironically, the circumstances of this case aptly demonstrate the indispensability of restraints on the trial court=s inherent power to sanction.  Because, against the backdrop of multiple settings and appearances inherent in the practice of law generally, attorneys in family law cases represent, advise, and seek to achieve the goals of clients who are often governed by powerful, sometimes overwhelming, emotions.  Securing their cooperation with motion and trial settings can be difficult.  In most cases, attorneys are able to effectively counsel their clients to ensure full participation, but there are those times when a client will be completely uncooperative despite the attorney=s best efforts.  In those cases, as in this case, the attorney should not be sanctioned for conduct attributable solely to an unpredictable and irrational client.

^[3]  Although the majority cites to Kutch as authority for its statement that the failure to attend the mediation constitutes significant interference with the court=s core functions, a close reading of Kutch reveals this reliance is misplaced.  The Kutch court did in fact state that a A[v]iolation of a court order relating to the court=s management and administration of a particular legal claim generally will be a significant interference@ with the judiciary=s functions, but did so only after a prudent discussion of the necessity to use the power cautiously.  831 S.W.2d at 510B12.  The majority overlooks this important aspect of the Kutch opinion by concluding that a violation of a court order is significant interference.  Moreover, as noted later in this dissent, I do not disagree that the violation of a court order may be a sufficient basis for sanctions under the court=s inherent power. An exercise of that power, however, requires evidence in the record that any violation significantly interfered with the court=s core functions. Id. at 510.

^[4]  The majority states that Clarke does not challenge the trial court=s determination that the sanctioned conduct constituted bad faith litigation practices; however, we are to construe the briefs liberally.  See Tex. R. App. P. 38.9.  Clarke states in her issue that there is no evidence the conduct sanctioned significantly interfered with the court=s core functions, but her argument asserts that there was no bad faith abuse of the judicial process. Accordingly, Clarke=s appellate argument includes the assertion that failing to attend the mediation was not bad faith abuse of the judicial process.  Moreover, the law regarding the inherent power to sanction does not support the majority=s narrowing of Clarke=s appellate argument.  See generally Kutch, 831 S.W.2d at 510 (noting inherent power to sanction exists to the extent necessary to deter or alleviate bad faith abuse of the judicial process, Asuch as@ significant interference with the court=s core functions).

^[5]  Notably, the majority cites only one case in which a court concluded that failing to attend a mediation was sanctionable conduct.  See Roberts v. Rose, 37 S.W.3d 31, 33 (Tex. App.CSan Antonio 2000, no pet.).  See 37 S.W.3d 31, 33 (Tex. App.CSan Antonio 2000, no pet.). See 37 S.W.3d 31, 33 (Tex. App.CSan Antonio 2000, no pet.). Roberts, however, is distinguishable.  In that case, the attorney did not inform the client the mediation had been scheduled, nor did he inform opposing counsel of his intention to be absent from the mediation.  Id. at 33.  The trial court sanctioned the attorney for failing to appear at the mediation, failing to notify the parties of their intent to miss the mediation, and failing to attend the sanctions hearing.  Id. The facts in this case are not so egregious as those in Roberts.  Here, Clarke did not hide the intent to miss the mediation from the others involved nor simply let the appointment pass; rather, as soon as she was aware of Kenneth=s refusal to attend, which unfortunately occurred on a Sunday morning, she attempted to notify everyone concerned.  These key facts are absent from Roberts. Id.  Indeed, many of the cases upholding sanctions orders have done so based on serious abuses of the judicial process, not under the circumstances existing here.  See, e.g., Bennett, 960 S.W.2d at 40 (upholding sanctions order because counsel admitted participating in Afiling scheme@ to ensure adjudication by a particular judge, stating A[t]his type of conduct, if tolerated, breeds disrespect for and threatens the integrity of our judicial system.@); Kings Park, 101 S.W.3d at 541 (concluding sanctions under inherent power was authorized based on allegations a paralegal was instructed to steal documents from the chambers of the special trial judge); see also Kennedy, 125 S.W.3d at 19 (noting that there was no evidence that refusing to sign a check significantly interfered with the trial court=s core functions); N.R.C., 94 S.W.3d at 810 n.7 (concluding that failure to pay ad litem fee was not sufficient bad faith abuse of the judicial process to justify the sanction).

^[6]  Also, we may not infer a finding that the complained-of conduct significantly interfered with the trial court=s core functions because omitted findings can only be inferred when evidence supports those findings. See Tex. R. Civ. P. 299; Black v. Dallas County Child Welfare Unit, 835 S.W.2d 626, 631 n.10 (Tex. 1992).  Here, there is no evidence to support the conclusion that Clarke=s failing to attend the mediation was a bad faith litigation practice, nor that it significantly interfered with the court=s core functions.  Hence, although we are permitted to uphold a judgment if the conclusions of law contain errors, a judgment must be supported by sufficient evidence and findings of fact.  Black, 835 S.W.2d at 631 n.10.

^[7]  In Toles, a divorce action, the husband moved for sanctions against his former wife and her attorney, alleging a laundry list of actions subject to sanctions, including violation of court orders relating to discovery and production of evidence, appearing late for depositions, and concealing evidence.  45 S.W.3d 252, 266 (Tex. App.CDallas 2001, pet. denied).  The Dallas Court of Appeals reversed the sanctions order citing a lack of evidentiary support in the record that the wife=s conduct significantly interfered with the trial court=s core functions. Id. at 267.

^[8]  I agree with the majority=s characterization of Kenneth=s conduct as sanctionable because he decided at the last minute to be absent from the mediation, however, sanctions against Clarke are not warranted under these facts.