glass

granted sanctions, and appeal was taken.

The Court of Appeals, Bleil, J., held that:

(1) order barring wife from filing any cause

of action or pleading in any state court

until all monetary sanctions were paid in

full violated the open courts provision; (2)

wife should not be sanctioned for her attor-

ney's conduct; and (3) trial court abused its

discretion by awarding excessive attorney

fees.

Reversed in part and modified and af-

firmed.

Grant, J., concurred in part and dis-

sented in part with opinion.



1. Constitutional Law 2

Order imposing sanctions against

client for frivolous pleadings filed by her

attorney subsequent to judgment in divorce

action was improper; party should not be

punished for counsel's conduct unless party

is implicated apart from having entrusted

legal representation to counsel. Vernon's

Ann.Texas Rules Civ.Proc., Rule 13.

3. Costs 2 olous postjudgment pleadings in divorce ac-

Lack of reasonable relationship be- tion, did not bear reasonable relationship to

tween harm done and sanctions assessed any harm done. Vernon's Ann.Texas

constitutes abuse of discretion. Vernon's Rules Civ.Proc., Rules 13, 215, subd. 2,

Ann.Texas Rules Civ.Proc., Rules 13, 215, pars, b, b(8).

subd. 2, pars, b, b(8).

7. Costs 2 Richard N. Countiss, Burrow & Williams,

Whether imposition of sanctions is just Houston, for appellants.

is measured by two standards: direct rela- Thomas K. Robinson, Miller, Miller &

tionship must exist between offensive con- Robinson, Gonzales, Joe H. Rentz, Rentz,

duct and sanctions imposed, and sanctions Burg & Associates, Gerald P. DeNisco, Si-

must not be excessive. Vernon's Ann.Texas mon W. Hendershot, III, Pope, Shoemake,

Rules Civ.Proc., Rules 13, 215, subd. 2, Selwyn, Kerr, DeNisco, Houston, for appel-

pars, b, b(8). lee.

8. Costs 2

Authority for district court to impose Before CORNELIUS, C.J., and BLEIL

sanctions should be exercised cautiously and GRANT, JJ.

and judiciously. Vernon's Ann.Texas

Rules Civ.Proc., Rules 13, 215, subd. 2, OPINION

pars, b, b(8). BLEIL, Justice.

9. Costs
Award of legal fees of $45,000 to law Neely, appeal the imposition of sanctions

firm, for responding to postjudgment friv- against them for filing frivolous pleadings

olous pleadings, constituted an abuse of after the entry of a judgment of divorce

discretion and would be modified to based upon a compromise settlement agree-

$22,-500, which bore a reasonable ment. The critical issues presented on this

relationship to the harm done. Vernon's appeal are whether Peggy Glass may be

Ann.Texas Rules Civ.Proc., Rules 13, barred from access to the courts of Texas,

215, subd. 2, pars, b, b(8). whether she may be sanctioned individually

for her attorney's conduct, whether attor-

10. Costs &»2

ney's fees awarded as sanctions pursuant

An award of $9,650 to law firm for to Rule 13 of the Texas Rules of Civil

responding to postjudgment frivolous Procedure need to be proven to be reason-

pleadings bore reasonable relationship to able and necessary, and whether the sanc-

harm incurred. Vernon's Ann.Texas Rules tions ordered are excessive in light of the

Civ.Proc., Rules 13, 215, subd. 2, pars, b, evidence.1 We hold that the prohibition

b(8). against court proceedings is constitutional-

11. Costs &*2 ly infirm, that a party should not be sanc-

Award of $10,000, beyond attorney tioned for her attorney's conduct, that at-

fees awarded, as sanctions for filing friv- torney's fees may be awarded as sanctions

1. TEX.R.CIV.P. 13, entitled Effect of Signing of in a cause for such a purpose, or shall make

Pleadings, Motions and Other Papers; Sanc- statements in pleading which they know to be

tions, provides the following: groundless and false, for the purpose of secur-

The signatures of attorneys or parties con- ing a delay of the trial of the cause, shall be

stitute a certificate by them that they have held guilty of a contempt. If a pleading,

read the pleading, motion, or other paper; motion or other paper is signed in violation of

that to the best of their knowledge, informa- this rule, the court, upon motion or upon its

tion, and belief formed after reasonable in- own initiative, after notice and hearing, shall

quiry the instrument is not groundless and impose an appropriate sanction available un-

brought in bad faith or groundless and der Rule 215-2b, upon the person who signed

brought for the purpose of harassment. At- it, a represented party, or both.

torneys or parties who shall bring a fictitious Courts shall presume that pleadings, mo-

suit as an experiment to get an opinion of the tions, and other papers are filed in good faith.

court, or who shall file any fictitious pleading No sanctions under this rule may be imposed

even absent evidence that they are reason- Neely, on behalf of Peggy Glass, filed a

able and necessary, and that under this motion for new trial, alleging that there

evidence the trial court abused its discre- was real estate acquired by the parties

tion by awarding excessive attorney's fees. during their marriage which had not been

We therefore set aside the judgment divided. On September 19, 1990, Neely

against Peggy Glass and modify the re- sent a post-trial settlement offer and a

mainder of the judgment to eliminate the demand that it be immediately accepted; if

excessive attorney's fees and the additional not accepted, litigation was to be filed

monetary sanctions. As modified, we af- against the lawyers representing Dale

firm. Glass, his mother, a Gonzales bank and a

The order granting sanctions against certified public accountant.3

Peggy Glass and Neely was entered after The letter was followed with various le-

Peggy and Dale Glass were granted a di- gal pleadings in the suit filed by Neely,

vorce based upon a settlement agreement which the court ultimately determined were

on August 10, 1990. 2 After the divorce, frivolous, filed in bad faith and solely for

except for good cause, the particulars of policies, but ownership interests in realty and

which must be stated in the sanction order. minerals and in bank stock as well. So far as

"Groundless" for purposes of this rule means I am concerned, there may be additional

no basis in law or fact and not warranted by property which may be subject to division in

good faith argument for the extension, modifi- connection with the above-referenced divorce.

cation, or reversal of existing law. A general In view of your knowledge of the existence of

denial does not constitute a violation of this this property and your failure to disclose

rule. The amount requested for damages same to me upon my inquiry, I now under-

does not constitute a violation of this rule. stand the reason for your nervous behavior

the last two occasions on which we met to

2. The divorce proceedings were instituted by discuss this matter. It further explains why

Dale Glass in Gonzales County, represented by your client and his family have refused to

Thomas K. Robinson of the Gonzales law firm abide by any agreement or code of ethics in

of Miller, Miller & Robinson. Peggy Glass insti connection with concluding the above-refer-

tuted proceedings in Harris County. When the enced divorce.

Harris County court proceedings were deter Furthermore, I am surprised that someone

mined to be the proper proceedings, Dale Glass who purports to have been a friend of Peggy,

retained the services of the Houston law firm of who grew up with her, and has known her all

Pope, Shoemake, Selwyn, Kerr & De Nisco. her life would engage in a conspiracy and a

3. This demand letter, if not the seminal source scheme to defraud her of her legitimate inter-

of all that followed, is significant. The text ests in her marital estate. I believe that not

of only you, but Mr. Tom Robinson, are guilty of

the letter, sent to various addresses, is as fol fraud and conspiracy to defraud. According-

lows: ly, action will be taken against you to recover

not only her property but the attorney's fees

Upon your refusal to provide the documents and other expenses incurred by Peggy Glass in

pertaining to the ownership of community connection with said conspiracy.

property by Dale and Peggy which was re- Ergo, please be advised that I have been

quired by notice previously served upon your directed by Peggy A. Glass to initiate an action

client, in derogation of your responsibilities against you, your law firm, Pope, Shoemake,

and obligations pursuant to the Texas Rules Selwyn, Kerr & De Nisco, for fraud, conspir-

of Civil Procedure, it became necessary for acy to defraud, and possible civil RICO viola-

me to independently obtain such. Although I tions involving the transmission of fraudulent*

am positive copies of same are in your posses- misrepresentations through means of inter-

sion, which you have failed and refused to state commerce.

produce as previously requested and required Should you wish to avoid the necessity of

pursuant to the Texas Rules of Civil Proce- litigation and concomitant grievances and

dure, I am enclosing herewith copies of the motions for sanctions and contempt as a con-

deeds whereby interests in real property were sequence of your despicable conduct, I am

acquired by Dale and Peggy during their mar- authorized to extend you the following settle-

riage. While I do not have a copy of docu- ment offer:

mentation pertaining to their stock ownership (1) Any and all real property, or interests

in American National Bank, I shall be obtain- therein, which was acquired by Dale Glass

ing same shortly. during the marriage will be conveyed, en toto,

This is a particularly opprobrious situation, to Peggy A. Glass;

in that Dale Glass and both attorneys repre- (2) Any and all mineral interests acquired by

senting him have engaged in a scheme to Dale Glass during the marriage will be con

defraud Peggy Glass of her community inter- veyed, en toto, to Peggy A. Glass;

est in not only cash proceeds from insurance

harassment and delay.4 The attorneys for $45,000.00 to the law firm of Pope,

Dale Glass and their law firms filed respon- Shoe-make, Selwyn, Kerr & De Nisco

sive pleadings and motions for sanctions. $9,650.00 to the law firm of Miller, Miller

The trial court found against Peggy Glass & Robinson $10,000.00 additional

and Neely, granted sanctions in amounts sanctions to Dale

greater than those sought, and sua sponte Glass and both law firms. 5 With this

enjoined Peggy Glass from filing any factual framework, we turn to the issues

pleading in any court in Texas until all presented on appeal.

monetary sanctions were paid. The mone-

tary sanctions awarded against Peggy OPEN COURTS VIOLATION [1]

Glass and Neely, jointly and severally, to- The open courts provision of the Texas

taled $64,650.00: Constitution mandates that the state

(3) Any and all bank stock in American Na (g) Miller, Miller & Robinson

tional Bank or any other banking institution, (h) Greg Peterek

shall be conveyed, en toto, to Peggy A. Glass; (2) Grievances with the State Bar, as well as

(4) Any and all insurance proceeds from the contempt and sanctions motions, will be initi

theft of Peggy A. Glass' 1988 BMW will be ated against Simon W. Hendershot, III, Pope,

delivered to her, en toto; Shoemake, Selwyn, Kerr & De Nisco, Thomas

(5) Clear title to Peggy A. Glass' 1990 BMW K. Robinson, and Miller, Miller & Robinson,

will be delivered to her; as a consequence of their intentional and will

(6) The townhome situated at 2854 ful fraudulent conduct violative of the Texas

Holly Rules of Civil Procedure and the Code of

Hall, will be conveyed, en toto, to Peggy A. Professional Responsibility by

Glass; intentionally

(7) Any and all cash funds remaining from refusing to produce documents required to be

the money market account and any certifi produced through discovery and for the com

cates of deposit in the possession of Dale S. mission of active misrepresentations;

Glass will be conveyed, en toto, to Peggy A. (3) Grievance actions will be initiated against

Glass; Dale S. Glass with the appropriate state regu

(8) All china, crystal and other wedding gifts latory agency seeking to rescind the license of

will be conveyed, en toto, to Peggy A. Glass, Dale S. Glass to practice medicine as a conse

same being confirmed through delivery of the quence of his fraudulent conduct and com

bridal registry which reflects not only the mission of perjury at his deposition on April

gifts but the person who gave such item to the 17, 1990, in the above-referenced action.

parties upon their marriage; Please be advised that if I do not hear from

(9) Recovery of all costs incurred in connec you by 5:00 o'clock p.m. on Wednesday, Sep-

tion with the referenced divorce action; tember 19, 1990, agreeing to the terms hereof,

(10) Attorney's fees incurred in the I shall be left no recourse other than to pur-

refer sue the course of action indicated

enced divorce action in the amount of $50,- herein-above.

000.00; Finally, I demand a copy of your malprac-

(11) A permanent injunction precluding any tice insurance policy so as to determine

contact of any nature whatsoever by Dale whether the intentional and negligent inflic-

Glass, Sally or Sam Glass, with Peggy A. Glass tion of emotional distress and other conduct

or any family member of Peggy A. Glass. in which you have engaged, on behalf of your

If the above settlement offer is not accepted law firm and your client, is an insurable inci-

by you immediately, the following shall oc- dent under such policy. Additionally, I am

cur: transmitting copies of this demand letter to

(1) Litigation will be initiated against the fol- each partner of your law firm so as to place

lowing-described individuals for their fraudu- them on notice of the claims to be asserted

lent conduct and their conspiracy to defraud against not only you, but the firm of Pope,

Peggy A. Glass of her marital property inter- Shoemake, Selwyn, Kerr & De Nisco as well.

ests, together with actions for breach of fidu-

ciary duties, breach of good faith and fair 4. These pleadings included documents

dealing, breach of contract, civil RICO and styled

DTPA violations, conversion, as well as any motion for sanctions and for an order of con

other cause of action extant as a consequence tempt, amended motion for new trial,

of their actionable conduct: first

(a) Dale S. Glass amended original petition for divorce, first sup

(b) Simon W. Hendershot, III plement to petitioner's amended motion for new

(c) Pope, Shoemake, Selwyn, Kerr & De trial, supplemental exhibits to

Nisco petitioner's

(d) Lou Glass amended motion for new trial, and supplement

(e) American National Bank to petitioner's motion for new trial.

(f) Thomas K. Robinson

5. The law firms had pled for attorney's fees of

$25,000.00 and $5,000.00, respectively.

courts shall be open to all persons. The CLIENT VERSUS ATTORNEY

relevant part of Article I, § 13 provides MISCONDUCT

that: "All courts shall be open, and every [2] The trial court and the attorneys

person for an injury done him, in his lands, seeking sanctions against Peggy Glass and

goods, person or reputation, shall have Neely make no distinction between the con-

remedy by due course of law." TEX. CONST. duct of the client and that of the attorney.

art. I, § 13. The trial court's injunctive In the court's findings of fact, the court

order—not pled for or sought by any party properly distinguishes between the client

and attacked as lacking evidentiary sup- and attorney, finding in numerous instances

port—directed that: that, "George R. Neely filed on behalf of

ORDERED, ADJUDGED AND DE- PEGGY ANN GLASS" (emphasis added)

CREED that PEGGY ANN GLASS is frivolous pleadings in "bad faith with mal-

enjoined from filing any cause of action ice" and "solely for the purposes of harass-

ment and delay." Later, the court confuses

or other pleading whatsoever, in any

the conduct of client and attorney by

state court in the State of Texas until all

referring to the "conduct of George R.

monetary sanctions ordered herein are

Neely and PEGGY ANN GLASS" in the

paid, in full, with interest and proof of

filing of pleadings after the divorce judg-

payment furnished to the 308th Judicial ment. The trial court's confusion of the

District Court of Harris County, Tex- conduct of Peggy Glass with that of her

as. . . . 6 attorney led the court to err. Nowhere in

The open courts provision contained in its findings of fact did the trial court find

Article I, § 13 traces its origins to the that Peggy Glass did anything other than

Magna Carta. See LeCroy v. Hanlon, 713 what her attorney did on her behalf. In-

S.W.2d 335, 339 (Tex.1986).7 The right of deed, no evidence was adduced which tend-

access to the courts has been at the foun- ed to show that Peggy Glass did anything

dation of democracy in this country, and except rely on her attorney's advice.

every Texas Constitution has contained the Although the attorneys seeking to up-

same open courts provision. Id. at 339. hold the sanctions against Peggy Glass say

This provision guarantees all Texans the things such as "they filed" various doc-

right to redress their grievances in court. uments, the evidence is clear. Peggy Glass

Id. at 341; Nelson v. Krusen, 678 S.W.2d filed nothing in this case.8 The trial court

918, 921 (Tex.1984). With the meaning of erred in holding Peggy Glass culpable for

this provision established, ordinarily it the acts of her attorney. A party should

might be appropriate to determine whether not be punished for counsel's conduct un-

any state purposes outweigh Peggy Glass's less the party is implicated apart from hav-

constitutional right to access to the courts. ing entrusted its legal representation to

Here, however, no state purpose or policy counsel. Transamerican Natural Gas v.

is shown to be served that might be Powell, 811 S.W.2d 913, 917 (Tex.1991).

weighed against the right to open courts. Here, the punishment meted out is clearly

We therefore hold that the court's injunc- for counsel's misconduct, namely the filing

tive sanction against Peggy Glass violates of pleadings in violation of Rule 13 of the

the open courts provision and that part of Texas Rules of Civil Procedure. To punish

the court's order is unconstitutional. Peggy Glass for her counsel's misconduct

6. This injunction is attacked as lacking evidence S.W.2d 687 (Tex.1988); LeCroy v. Hanlon, 713

to support it. While we find no such S.W.2d 335, 339 (Tex.1986); and Sax v. Votteler,

evidence, 648 S.W.2d 661 (Tex.1983), as significant deci-

we do not pass on the attacks upon the lack of sions recognizing the importance of the open

evidence because of our holding that the order courts provision.

unconstitutionally denies Peggy Glass access to

the courts of Texas. 8. Peggy Glass did sign an affidavit attached to

one of the pleadings filed by her attorney, but

7. See also JAMES C. HARRINGTON, OUR TEXAS BILL no contention is advanced that that act is suffi-

OF cient to uphold sanctions against her.

RIGHTS 13-14 (1991), discussing the open courts

provision and citing Lucas v. United States, 757

826S.W.2d—16

under these circumstances is clearly unjust; fails to prove his attorney's fees where the

the trial court erred in imposing sanctions judgment is not one for earned attorney's

against her. fees, but rather a judgment imposing attor-

ney's fees as sanctions. Id. The amount

ATTORNEY'S FEES AS SANCTIONS [3] of attorney's fees awarded as sanctions

Sanctions may be imposed for violation of for discovery abuse is within the sound

Rule 13 in the manners provided in Rule discretion of the trial court and will only be

215(2)(b) of the Texas Rules of Civil set aside upon a showing of clear abuse of

Procedure.9 The latter rule provides that that discretion. Brantley v. Etter, 677

the court may require the party failing to S.W.2d at 504. Proof of the necessity or

obey an order or the attorney advising him, reasonableness of attorney's fees is not

or both, to pay the reasonable expenses, required when such fees are assessed as

including attorney's fees, caused by the sanctions. Id.; Allied Assoc. v. INA

failure. The amount of fees to be awarded County Mut. Ins., 803 S.W.2d 799, 799

an attorney is solely within the discretion (Tex.App.—Houston [14th Dist] 1991, no

of the trial court and may not be set aside writ).

except upon a showing of abuse of discre-

tion. Brantley v. Etter, 677 S.W.2d 503, DISCRETION ABUSE IN ATTORNEY'S

504 (Tex.1984). FEES AWARD

[4] Peggy Glass and Neely contend that The total monetary sanctions included

Brantley simply means that the award of awards of legal fees of $45,000.00 to one

attorney's fees is within the sound discre- law firm and $9,650.00 to another for their

tion of the trial court and that it does not responses to Neely's post-judgment plead-

mean that the court can award such fees ings. These are substantial legal fees for

without evidence. They contend that be- this proceeding, in which the gross value of

cause there is no evidence to support the the estate of the parties was about

$45,000.00 attorneys' fees awarded to $60,-000.00.

Pope, Shoemake, Selwyn, Kerr and De [5-8] The due process clause, as applied

Nis-co, and no evidence that any of the to sanctions, mandates a reasonable rela-

attorneys' fees were reasonable and tionship between the harm done and the

necessary, those attorneys' fees must be sanctions assessed. Insurance Corp. of

set aside. In Firestone Photographs, Inc. Ireland, Ltd. v. Compagnie Des Bauxites

v. Lamaster, 567 S.W.2d 273, 277-78 de Guinea, 456 U.S. 694, 707, 102 S.Ct.

(Tex.Civ.App.— Texarkana 1978, no writ), 2099, 2106-07, 72 L.Ed.2d 492, 504 (1982).

we held that the choice of the appropriate The lack of a reasonable relationship be-

sanctions is for the trial court to determine, tween the two constitutes an abuse of dis-

and so long as the sanctions are within the cretion. And, whether the imposition of

authority vested in the trial court, they will sanctions is just is measured by two stan-

not be overturned unless they constitute a dards: (1) a direct relationship must exist

clear abuse of discretion. Id. We also between the offensive conduct and the

held that a judgment is not invalid sanctions imposed; and (2) just sanctions

because a party

9. TEX.R.CIV.P. 215(2)(b)(8) provides: (8) In lieu of any of the foregoing orders or

b. Sanctions by Court in Which Action is in addition thereto, the court shall require the

Pending. If a party or an officer, director, or party failing to obey the order or the attorney

managing agent of a party or a person desig- advising him, or both, to pay, at such time as

nated under Rules 200-2b, 201-4 or 208 to ordered by the court, the reasonable expenses,

testify on behalf of a party fails to comply including attorney fees, caused by the failure,

with proper discovery requests or to obey an unless the court finds that the failure was

order to provide or permit discovery, includ- substantially justified or that other circum-

ing an order made under paragraph 1 of this stances make an award of expenses unjust.

rule or Rule 167a, the court in which the Such an order shall be subject to review on

action is pending may, after notice and hear- appeal from the final judgment.

ing, make such orders in regard to the failure

as are just, and among others the following:

must not be excessive—the punishment curred in responding to the allegations of

must fit the crime. Transamerican Natu- Neely after judgment, the award of such a

ral Gas Co. v. Powell, 811 S.W.2d at 917. large amount of fees relative to the amount

The authority for a district court to impose in controversy constitutes a clear abuse of

sanctions should be exercised cautiously discretion.11

and judiciously. See Braden v. Downey,

811 S.W.2d 922, 930 (Tex.1991). With [10] There is no evidence that a

these guidelines in mind, we now review $45,-000.00 fee was incurred or that any

the monetary sanctions imposed in light of particular amount was reasonable and

the circumstances present. necessary. Because this award is excessive

based on the evidence and far exceeds any

[9] The amount of fees awarded here, reasonable relationship to the harm done,

coupled with the absence of any evidence we modify the judgment to halve that fee

that they are reasonable and necessary, to the sum of $22,500.00, which sum bears

brings into question the justness of the a reasonable relationship to the harm done.

amount awarded as sanctions. As indi-

Evidence supports the award of $9,650.00,

cated, this was originally a judgment based

which appears to bear a reasonable rela-

upon a compromise settlement agreement.

tionship to the harm incurred.

Each of the Glasses was represented by

one attorney and, probably, until the time

of the hearing on post-trial motions, few ADDITIONAL SANCTIONS [11]

fees were earned or paid. After Neely Peggy Glass and Neely further contend

filed his motion for new trial and other that there was no failure on their part

post-judgment pleadings, the attorneys op- which would justify the award of an

posing those pleadings gravitated to this additional $10,000.00 beyond the attorneys'

proceeding as if drawn by a magnet. The fees awarded.12 Numerous post-divorce fil-

law firm representing Dale Glass assigned ings by Neely were on extremely tenuous

seven costly lawyers to pursue this mat- grounds. Under this record, the sanctions

ter.10 To assist in combating allegations in the form of attorneys' fees, as modified,

found to be obviously frivolous, several are sufficient in relationship to the harm

attorneys from another firm, Miller, Miller done. There appears to be no reason why

& Robinson, of Houston, also joined in the Dale Glass and the two law firms should

proceedings. In all, it appears that seven share a judgment of an additional

to eleven attorneys joined forces to counter $10,-000.00 against Neely. We conclude

the frivolous pleadings filed by Neely. In that this additional sanction does not bear a

the absence of any evidence of the reason- reasonable relationship to any harm done,

ableness or necessity of attorneys' fees in- and we set aside that part of the order.

10. Entering the foray to combat what was con ous defendants is belied by the exhibit itself.

sidered by each of the lawyers, the trial court Exhibit 18, a bill from the firm of Pope,

and this Court to be frivolous allegations, the Shoe-make, Selwyn, Kerr & De Nisco in the

firm representing Dale Glass assigned T. Turner amount of $31,875.00 and dated October 5, 1990,

Pope, III, at $225.00 an hour; James H. Shoe- is addressed solely to Dr. Dale Glass and

make, at $200.00 an hour; Douglas M. Selwyn, pertains to his and Peggy Glass's divorce

at $200.00 an hour; Gerald P. De Nisco, proceedings.

at

$200.00 an hour; Raymond C. Kerr, at $225.00 12. Peggy Glass and Neely attack this additional

an hour; Joe Rentz, at $300.00 an hour; $10,000.00 monetary sanction as not being au-

and thorized by Rule 13 or Rule 215. The reply to

Simon W. Hendershot, III, at $125.00 an hour. this is that Texas courts have held that imposing

sanctions does not violate the Texas Constitu-

11. In the partial dissenting opinion, there is an tion, citing Woodruff v. Cook, 721 S.W.2d 865

indication that numerous defendants had been (Tex. App.—Dallas 1986, writ refd n.r.e.).

sued in this case and that each party should be Woodruff does not assist in determining this

entitled to be represented by counsel of choice. significant legal question presented by the at-

The record does not show any additional "defen tack on the $10,000.00 additional sanctions as

dants" in the case or that the numerous attor being unauthorized. Because we set aside this

neys represented additional defendants. particular sanction, we decline to address this

The question.

dissenting opinion's view that Exhibit 18 shows

the need for many lawyers to represent numer-

We reverse the order of the trial court not prohibit sanctions against those who

insofar as it imposes any sanctions against abuse the judicial process. Such sanctions,

Peggy Glass; we set aside the additional however, should be specific and should be

sanction of $10,000.00 awarded to Dale limited to penalties and prohibitions having

Glass and the two law firms; we modify a reasonable relationship to the harm com-

the award of attorneys' fees so as to award mitted. Injunctive relief should be tailored

$22,500.00 to the firm of Pope, Shoemake, to protect the courts and innocent parties,

Selwyn, Kerr & De Nisco, and $9,650.00 while preserving the legitimate rights of the

attorneys' fees to the firm of Miller, Miller litigants. Farguson v. MBank Eons-ton,

& Robinson. Any points of error not spe- N.A., 808 F.2d 358 (5th Cir.1986). A broad

cifically determined or made moot by our order may be appropriate if a litigant is

resolution of the legal issues are overruled. engaged in a wide-spread practice of

As modified, we affirm that part of the harassment against different people. See

judgment awarding attorneys' fees as sanc- In re Martin-Trigona, 737 F.2d 1254 (2d

tions against Neely. Cir.1984). Such generalized sanction

It is so ordered. against Peggy Glass was not warranted in

the present case because the only abuse

GRANT, Justice, concurring in part and that was shown involved this case and the

dissenting in part. parties, attorneys, and others involved

herein. Thus, the injunctive sanction was

I concur with the majority except for its overly broad and violated Article 1, § 13 of

reduction of the monetary attorney's fees the Texas Constitution.

sanctions against George Neely.

The majority opinion emphasizes that the

The succinct portion of the majority opin- original divorce proceeding involved an es-

ion addressing the open courts violation tate of about $60,000. They further con-

suggests that any type of injunctive sanc- demn the sanction proceeding for having

tion that prohibits the filing of pleadings or seven costly lawyers from one firm to

other documents in any State court would counter the frivolous pleadings. It must

be a violation of Article I, § 13 of the be pointed out that after the amended

Texas Constitution. pleadings were filed, this was no longer a

The open courts provision of the Texas simple divorce action; numerous respon-

Constitution declares that our state govern- dents, including attorneys, a CPA, and

ment shall not ration justice but shall pro- American National Bank had been named

vide an open forum to right wrongs and in the suit, which requested damages and

provide remedies for legitimate claims. judgment from them for more than five

This broad policy provision, however, does million dollars.13 To say that one attorney

13. The following is an excerpt from the of $100,000.00, jointly and/or severally;

First Amended Original Petition of Peggy together with,

Glass: (4) Judgment of, from and against Respon

5.6 Petitioner requests judgment of, from dents Lou Glass and/or American National

Bank for commission of conspiracy to de

and against the Respondents, jointly and sever-

fraud, in the amount of $100,000.00, jointly

ally, as delineated hereinbelow: and/or severally; together with, or in

(1) Judgment of, from and against Respon the

dents Glass, Hendershot, the Pope firm, Rob alternative,

inson, and the Miller firm, for commission of (5) Judgment of, from and against Respon

fraud, in the amount of $100,000.00, jointly dents Lou Glass and/or American National

and/or severally; together with, or in Bank for violations of the Texas Deceptive

the Trade Practices-Consumer Protection Act, in

alternative, the amount of $100,000.00, jointly and/or sev

(2) Judgment of, from and against Respon erally; together with, or in the

dents Glass, Hendershot, the Pope firm, Rob alternative,

inson, Robinson, and the Miller firm, (6) Judgment of, from and against Respon

for dents Lou Glass and/or American National

commission of conspiracy to defraud, in the Bank for commission of conversion, in the

amount of $100,000.00, jointly and/or several amount of $100,000.00, jointly and/or several

ly; together with, or in the alternative, ly; together with, or in the alternative,

(3) Judgment of, from and against Respon (7) Judgment of, from and against Respon

dents Lou Glass and/or American National dent Peterek for commission of professional

Bank for commission of fraud, in the amount

should have continued to represent all of relationship, breach of obligation of good

the parties is contrary to the fundamental faith and fair dealing, breach of contract,

right of each party to be represented by credit defamation, conversion, professional

counsel of choice. malpractice, and violation of the Deceptive

Because of the multiplicity of filings by Trade Practices Act.

petitioners and the responses and The majority opinion states that, "There

cross-motions by respondents, the hearing is no evidence that a $45,000.00 fee was

lasted for four days. The court heard and incurred." To so state is to ignore the

disposed not only of matters raised by peti- record. Exhibit 18 is a detailed summary

tioners, but also the motions for sanctions of the hours worked by the various attor-

and costs raised by the respondents. The neys for the appellees in the case, the hour-

transcript contains almost 1,200 pages and ly rate for each attorney, the total amount

the statement of facts almost 700 pages. claimed for each attorney, and a total of

The joining by the appellant of three law- the combined claim, which amounted to

yers, a CPA, two law firms and a bank as $31,875, plus expenses of $373. Later in

parties directly contributed to the length the hearing, there was testimony about ad-

and complexity of the proceedings and jus- ditional hours worked and expenses in-

tified the appearance of counsel represent- curred by the attorneys as a result of the

ing the various respondents. hearings then in progress. The testimony

The trial court dismissed with prejudice raised the total attorney's fees for the Pope

plaintiffs first amended original petition firm to $45,863.

for divorce as sanctions for violation of Thomas K. Robinson, an attorney who

TEX.R.CIV.P. 13. This amendment was filed initially represented Dale Glass in this mat-

under the same file number as the original ter, testified that he had performed legal

divorce proceeding. The amended petition services for Dale Glass, as had other attor-

alleged numerous causes of action against neys in his firm of Miller, Miller & Robin-

the various respondents, including fraud, son. He further testified about the hourly

conspiracy to defraud, violation of fiduciary fees involved, the total time spent in repre-

malpractice, in the amount of $100,000.00; (14) Punitive and/or exemplary damages

together with, against Respondent the Pope firm in

(8) Judgment of, from and against Respon the

dents Lou Glass and/or American National amount of $500,000.00; together with,

Bank for common law and statutory breach (15) Punitive and/or exemplary damages

of obligation of good faith and fair dealing, in against Respondent Robinson in the amount

the amount of $100,000.00, jointly and/or sev of $500,000.00; together with,

erally; together with, or in the (16) Punitive and/or exemplary damages

alternative, against Respondent the Miller firm in the

(9) Judgment of, from and against Respon amount of $500,000.00; together with,

dents Lou Glass and/or American National (17) Punitive and/or exemplary damages

Bank for breach of contract, in the amount of against Respondent Lou Glass in the amount

$100,000.00, jointly and/or severally; togeth of $500,000.00; together with,

er with, or in the alternative, (18) Punitive and/or exemplary damages

(10) Judgment of, from and against all Re against Respondent American National Bank

spondents hereto for the intentional and/or in the amount of $1,000,000.00; together with,

negligent infliction of emotional distress, in (19) Moratory interest on all damages to

the amount of $100,000.00, jointly and/or sev Petitioner from the date recognized by law as

erally; together with, the date of accrual of said damages through

(11) Judgment of, from and against Re the rendition of a final judgment herein; to

spondents Lou Glass and/or American Na gether with,

tional Bank for commission of credit def (20) Costs of court incurred by Petitioner

amation, in the amount of $100,000.00, jointly herein; together with,

and/or severally; together with, or in the (21) Post-judgment interest at the

alternative, maxi

(12) Punitive and/or exemplary damages mum lawful rate from the entry of judgment

against Respondent Glass in the amount of until same be paid, en toto; together with,

$500,000.00; together with, (22) Attorney's fees in the amount of $50,-

(13) Punitive and/or exemplary damages 000.00; together with,

against Respondent Hendershot in (23) Such other and further relief, whether

the at law or in equity, to which Petitioner may

amount of $500,000.00; together with, be justly entitled.

senting Dale Glass, the type of work he

performed, and the amount of other ex-

penses. These totalled $9,250 in attorney's

fees and $353.47 in expenses. Neely and

Glass do not complain about the additional

attorney's fees awarded to Thomas K. Rob-

inson and his law firm.

The appellants challenged the

admissibili-ty of respondents' Exhibit 18,

and that contention should be addressed.

Exhibit 18 detailed the legal billing

incurred by appellees as a result of

appellants' filing the motion for new trial

and other documents and motions after the

decree of divorce. Neely and Glass

contend that Exhibit 18 was not admissible

because one of the elements specified for

admissibility of a business record was

omitted. Appellants specifically complain

that the appellees did not prove that it was

the regular practice of the business to

make this record. TEX. R.Civ.EviD. 803(6)

includes a requirement that the record be

kept in the course of a regularly conducted

business activity and that it was the

regular practice of that business activity

to make the memorandum, report, record,

or data compilation.

The record shows that Dale Glass's attor-

ney, De Nisco, laid the predicate required

by Rule 803(6) by asking Hendershot, Dale

Glass's counsel, whether the invoice was a

part of Pope, Shoemake, Selwyn, Kerr &

De Nisco; whether it was maintained in

the regular course of business for that

firm; whether the entries contained in the

invoice were made by persons having

knowledge of the facts contained therein;

and whether the entries were made at or

near the time of the occurrence. The wit-

ness answered in the affirmative to each

question. This evidence sufficiently shows

that the document was kept in the course

of regularly conducted business activities

and that it was a regular practice to make

this kind of document. The trial court

properly admitted Exhibit 18.

I would affirm the attorney's fees sanc-

tion against Neely.