henry by EO6R224

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									                                                  or counsel, not merely the legal merit of a
    Thomas J. HENRY and the Law                   pleading or motion.
     Offices of Thomas J. Henry,
              Appellants,                         2. Costs <&*2
                     v.                               The party seeking sanctions bears the
                                                  burden of overcoming the presumption of
    Robert LOW, D.O., and Stephen                 good faith in the filing of pleadings.
       Smith, M.D., Appellees.
           No. 13-02-440-CV.                      3. Appeal and Error <^984(1)
                                                       A trial court's imposition of sanctions
        Court of Appeals of Texas,
                                                  is reviewed under an abuse of discretion
        Corpus Christi-Edinburg.
                                                  standard; under an abuse of discretion
                 April 1, 2004.                   standard, the appellate court reviews the
Background: Doctors moved for sanc-               entire record to determine if the trial court
tions against attorney who represented            acted arbitrarily and unreasonably and
widow in negligence action. The 36th Dis-         thus abused its discretion.
trict Court, Aransas County, Ronald
                                                  4. Appeal and Error <3^984(1)
Yeag-er, J., granted motion. Attorney
appealed. Holdings: The Court of                       A trial court abuses its discretion in
Appeals, Don Wittig, J., retired justice          imposing sanctions if it bases its order on
sitting by assignment, held that:                 an incorrect view of the law or an errone-
                                                  ous assessment of the evidence.
(1) sanctions for alleged frivolous
     com                                          5. Appeal and Error <^856(1)
     plaint against doctors were not war               When an order of sanctions refers to
     ranted given alternative claims against      one specific rule, either by citing the rule,
     doctors;                                     tracking its language or both, the Court of
(2) attorney did not receive notice that          Appeals is confined to determining wheth-
     conduct in unrelated litigation would        er sanctions were appropriate under that
     form basis for sanctions; and                particular rule.
(3) trial court's sanctions order lacked the
     required specificity.                        6. Attorney and Client <&*U
Reversed and remanded.                                 Sanctions against attorney, who rep-
                                                  resented widow in products liability suit
Errlinda Castillo, J., dissented and filed
                                                  against drug manufacturer, hospital, nurs-
opinion.
                                                  es, and doctors, were not warranted, even
                                                  if there was no evidence that doctors pre-
1. Costs <3=>2                                    scribed alleged unsafe medication, where
     In determining if sanctions are prop-        complaint pled in the alternative that care
er, the trial court must examine the cir-         that patient received from doctors was
cumstances existing when the litigant filed       negligent. V.T.C.A., Civil Practice &
the pleading; the trial court considers the       Remedies Code § 10.001.
acts or omissions of the represented party
                                                    (1949), rev'd in part on other grounds, 5 N.J.
 Dallas Sales Co. v. Carlisle Silver Co., 2003      268, 74 A.2d 597 (1950) ("A party will not be
 WL 21877647, * 16 n. 3 (Tex.App.-Waco 2003,        permitted to play fast and loose with the
 no pet.) (citing Scarano v. Cent. Ry. Co. of       courts."))-
 N.J., 203 F.2d 510, 513 (3d Cir.1953); Stretch
 v. Watson, 6 N.J.Super. 456, 69 A.2d 596, 603
7. Attorney and Client <§»24                    based on the acts or omissions of the rep-
   Constitutional Law <§^303                    resented party or counsel, not merely on
     Attorney did not receive notice that       the legal merit of the pleading. Vernon's
sanction hearing would involve other con-       Ann.Texas Rules Civ.Proc., Rule 13.
duct in unrelated litigation, and thus, trial
court's sanction against attorney for filing
alleged frivolous complaint violated due
process, where the underlying sanctions
motion did not specifically mention such          Paul D. Andrews, Corpus Christi, for
conduct. U.S.C.A. Const.Amend. 14;              appellants.
V.T.C.A., Civil Practice & Remedies Code          Brian C. Miller, Carlos Villarreal,
§ 10.003.                                       Her-mansen, McKibben, Woolsey &
8. Pleading <£=>16                              Villarreal, Corpus Christi, for appellees.
     Texas follows a fair notice standard
for pleading, which looks to whether the          Before the court en bane.
opposing party can ascertain from the
pleading the nature and basic issues of the                     OPINION
controversy and what testimony will be
relevant.                                         Opinion by Justice WITTIG.1

9. Attorney and Client <£=>24                      This is an attorney sanction case arising
     Trial court's sanction order against       out of a products liability and medical mal-
attorney for allegedly filing a frivolous       practice lawsuit. The underlying suit in-
complaint failed to specifically state the      volved the death of Henry White, alleged
conduct and basis for its sanctions as re-      to have been caused by the drug Propulsid
quired by the statute, where the order          and the related medical treatment. Thomas
merely recited the statute and stated that      J. Henry and the Law Office of Thomas J.
the pleading lacked evidentiary support.        Henry ("Henry"), appellants, were at-
V.T.C.A., Civil Practice & Remedies Code        torneys for the widow, Joyce White, and
§ 10.005.                                       the estate of Henry White. Henry appeals
                                                an order granting $50,000 in sanctions
10. Costs <3=>2                                 sought by two of the multiple defendants
     The requirement that the trial court       in the underlying cause, Robert Low, D.O.,
state the particulars of the good cause for     and Stephen Smith, M.D. (the "Doctors"),
imposing sanctions under procedural rule        appellees. Henry contends that the trial
regarding the signing of pleadings is man-      court abused its discretion both by grant-
datory; a mere statement in the order that      ing sanctions and in the amount of the
good cause was shown is insufficient to         sanctions it imposed. We reverse and ren-
sustain a sanctions order. Vernon's             der.
Ann.Texas Rules Civ.Proc., Rule 13.
11. Attorney and Client <£*24                     I.   PROCEDURAL BACKGROUND
    Costs <&>2                                    Henry filed suit on behalf of the widow
    Sanctions under procedural rule re-         and the estate of White against Johnson
garding the signing of pleadings must be        and Johnson, Inc., Janssen Pharmaceutica

1. Retired Justice Don Wittig assigned to        Court of Texas pursuant to TEX. GOV ' T CODE
  this Court by the Chief Justice of the         ANN. § 74.003 (Vernon Supp.2004).
  Supreme
and related companies, Coastal Bend Hos-              by Henry of $50,000 into the registry of
pital, Inc., a nurse, and eight physicians,           the court. The fine consisted of $25,000
including the Doctors, on January 31, 2002.           for each of the Doctors' motions. On Au-
Contemporaneously, Henry filed a motion               gust 2, 2002, the trial court signed findings
to withdraw, stating he had a conflict of             of fact and conclusions of law regarding its
interest. The suit was filed five days be-            imposition of sanctions as well as a revised
fore the statute of limitations ran. The              order incorporating its findings and con-
trial court signed an order granting the              clusions. Henry filed post-sanction mo-
motion to withdraw on May 6, 2002. The                tions to modify, vacate, or reform the or-
Doctors answered and filed motions for                der and a motion for new trial. The trial
sanctions pursuant to rule 132 of the rules           court heard Henry's post-sanction motions
of civil procedure and chapters 93 and 104            on October 15, 2002. Henry appeared and
of the civil practice and remedies code,              testified during the hearing. The trial
seeking, among other relief, payment by               court denied the motions. This appeal
Henry of a monetary penalty into the                  ensued.
court. The plaintiffs filed a pro se notice
of nonsuit on June 10, 2002. On July 2,                          II. JURISDICTION
2002, the trial court signed an order of                The Doctors filed their sanction motions
nonsuit.5 The sanctions proceedings con-              before the plaintiffs nonsuited their claims.
tinued.                                               Thus, the trial court had continuing juris-
   After notice to the parties, the trial             diction to hear and determine the sanction
court held a hearing on July 30, 2002                 motions after the nonsuit. TEX.R. Civ. P.
based on the two sanction motions filed by            162; In re Bennett, 960 S.W.2d 35, 38
the Doctors. Henry appeared at the hear-              (Tex.1997).
ing by counsel only. The trial court took
judicial notice of the pleadings and other                        III.    STANDARDS
papers in the file. The Doctors testified
that they did not prescribe or administer                A.     Presumptions and Burdens of
the drug Propulsid to the deceased. Over                      Proof in Sanctions Motions
multiple objections, two other doctors tes-             [1,2] Generally, courts presume that
tified that Henry had asserted claims                 pleadings and other papers are filed in
against them that had no reasonable basis             good faith. GTE Communications Sys.
or that he asserted virtually identical               Corp. v. Tanner, 856 S.W.2d 725, 730 (Tex.
claims. On July 31, 2002, the trial court             1993) (orig.proceeding).6 In determining if
signed an order granting the Doctors' mo-             sanctions are proper, the trial court must
tions for sanctions and ordered payment               examine the circumstances existing when

2. TEX.R. Civ. P. 13.                                   found that the pro se plaintiff, not
                                                        Henry, filed the nonsuit.
3.     TEX. Civ. PRAC. & REM.CODE ANN. §§ 9.00-.014
     (Vernon 2002).                                   6. We do not specifically address the applica-
4.    TEX. Civ. PRAC. & REM.CODE ANN. §§   10.001-      tion vel non of good faith to chapter 10 sanc-
     .005 (Vernon 2002).                                tions. In an unpublished opinion, the San
                                                        Antonio court addresses this concern. See
5. While the parties do not dispute that Henry          Griffin     Indus,     v.     Grimes,      No.
  assisted the preparation of the nonsuit papers        04-02-00430-CV, 2003 WL 1911993, * 4 (San
  for filing by the Woods pro se after his formal       Antonio Apr. 23, 2003, no pet.) (applying
  withdrawal from the case, the trial court aptly       good faith to chapter 10).
the litigant filed the pleading. Home          84 S.W.3d 383, 392 (Tex.App.-Corpus
Owners Funding Corp. of Am. v.                 Christi 2002, no pet.). A trial court abuses
Schep-pler, 815 S.W.2d 884, 889                its discretion in imposing sanctions if it
(Tex.App.-Cor-pus Christi 1991, no writ)       bases its order on an incorrect view of the
(applying presumption of good faith to rule    law or an erroneous assessment of the
13 sanction). The trial court considers the    evidence. Randolph v. Jackson Walker,
acts or omissions of the represented party     L.L.P.,     29     S.W.3d       271,    276
or counsel, not merely the legal merit of a    (Tex.App.-Houston [14th Dist] 2000,
pleading or motion. Griffin Indus, v.          pet. denied).
Grimes, No. 04-02-00430-CV, 2003 WL
1911993, * 4, (San Antonio Apr. 23, 2003,                       IV.    ANALYSIS
no pet.); N.Y. Underwriters Ins. Co. v.
State Farm Mut. Auto. Ins. Co., 856                    The Trial Court's Discretion to
S.W.2d 194, 205 (Tex. App.-Dallas 1993,                 Sanction under Chapter 10
no writ). The party seeking sanctions             Henry's first issue asserts that the trial
bears the burden of overcoming the             court abused its discretion in imposing
presumption of good faith in the filing of     sanctions. More specifically, Henry ar-
pleadings. Tanner, 856 S.W.2d at 731.          gues: (1) chapter 10's stringent require-
                                               ments do not apply to alternative plead-
          B. Standard of Review                ings; (2) that the trial court should not
   [3,4] A trial court's imposition of sanc-   have based its decision solely on one alle-
tions is reviewed under an abuse of discre-    gation when alternatives existed; (3) that
tion standard. In re Bennett, 960 S.W.2d       the trial court should have allowed evi-
at 40; Chrysler Corp. v. Blackmon, 841         dence of alternative complaints; (4) there
S.W.2d 844, 853 (Tex.1992); Koslow's v.        was no evidence of Henry's intent; (5) the
Mackie, 796 S.W.2d 700, 704 (Tex.1990);        trial court erred in basing sanctions on
Rudisell v. Paquette, 89 S.W.3d 233, 236       other grounds not pled; (6) the trial court
(Tex.App.-Corpus Christi 2002, no pet.).       erred in basing chapter 10 sanctions on
Under an abuse of discretion standard, the     findings under rule 13 and chapter 9; and
appellate court reviews the entire record      (7) the trial court erred by failing to com-
to determine if the trial court acted arbi-    ply with the findings requirements of
trarily and unreasonably and thus abused       chapter 10. We will only address Henry's
its discretion. 1KB Indus. (Nigeria) Ltd. v.   sub issues one, two, five, and seven. See
Pro-Line Corp., 938 S.W.2d 440, 444            TEX.R.APR P. 47.1.
(Tex.1997). We may not substitute our
judgment for that of the trial court. Davis       [5] The trial court in its order for sanc-
v. Huey, 571 S.W.2d 859, 862 (Tex.1978).       tions stated that sanctions were warranted
The test for determining whether the trial     "pursuant to § 10.004(b)." 7 The order
court abused its discretion is whether it      also recited that the sanction of $25,000
acted without reference to any guiding         per sanction motion should be paid "as a
rules and principles to the extent the act     p en alt y in to th e C o u rt p u rsu an t to
was arbitrary or unreasonable. Doumer v.       § 10.004(c)(2)."8 The order invokes only
Aquamarine Operators, Inc., 701 S.W.2d         chapter 10 when ordering sanctions and
238, 241^2 (Tex.1985); Alejandro v. Bell,      orders those sanctions paid into the court,
                                               a remedy available only under chapter 10.
7.      TEX. Civ. PRAC. & REM .CODE ANN. §
     10.004(b) (Vernon 2002).                  8.      TEX. Civ. PRAC. & REM.CODE ANN. §
                                                    10.004(c)(2) (Vernon 2002).
See Sterling v. Alexander, 99 S.W.3d 793,              ically identified denial, is reasonably
799-800 (Tex.App.-Houston [14th Dist.]                 based on a lack of information or be-
2003, no pet.). When an order of sanctions             lief.
refers to one specific rule, either by citing     TEX. Civ. PRAC. & REM.CODE ANN. § 10.001
the rule, tracking its language or both, we       (Vernon 2002). A court may punish viola-
are confined to determining whether sanc-         tions of chapter 10 by imposing sanctions
tions are appropriate under that particular       on the "person, [the] party represented by
rule. Finlay v. Olive, 77 S.W.3d 520, 524         the person, or both" who "has signed [the]
(Tex.App.-Houston [1st. Dist.] 2002, no           pleading or motion in violation of Section
pet.). Thus, we review the order for abuse        10.001." TEX. Civ. PRAC. & REM.CODE
of discretion only under chapter 10 and not       ANN. § 10.004(a) (Vernon 2002).
under rule 13 of the rules of civil proce-
                                                     In his first two sub-issues, Henry com-
dure or chapter 9 of the civil practice and
                                                  plains the trial court abused its discretion
remedies code.
                                                  in concluding that sanctions lie for a plead-
   Section 10.001 of chapter 10 provides:         ing that asserts alternative claims even
     The signing of a pleading or motion as       though there is no identification of the
   required by the Texas Rules of Civil           particular defendants to which each claim
   Procedure constitutes a certificate by         applies. The trial court should not sanc-
   the signatory that to the signatory's best     tion for an alternative pleading while ig-
   knowledge, information, and belief,            noring other applicable alternatives. In
   formed after reasonable inquiry:               the petition he drafted and signed, multi-
        (1) the pleading or motion is not         ple allegations were made against four
     being presented for any improper pur         drug manufacturers, a hospital, a nurse,
     pose, including to harass or to cause        and eight physicians. Under strict liabili-
     unnecessary delay or needless                ty, the petition alleged ten claims against
     in                                           the drug manufacturers. Twenty-five neg-
     crease in the cost of litigation;            ligence allegations were also made against
        (2) each claim, defense, or other le      these corporate defendants, plus four per
     gal contention in the pleading or mo         se negligence allegations. The compound,
     tion is warranted by existing law or         complex pleading also averred misrepre-
     by a nonfrivolous argument for the           sentation, fraud and warranty violations.
     extension, modification, or reversal of      A separate section of the petition delineat-
     existing law or the establishment of         ed the alleged negligence of a nurse, phy-
     new law;                                     sicians and the hospital. This separate
        (3) each allegation or other factual      section, against ten different individual de-
     contention in the pleading or motion         fendants was the genesis of the sanction
     has evidentiary support or, for a spe        proceedings.
     cifically identified allegation or factual      Sixteen separate allegations were made.
     contention, is likely to have evidentia      Many of the allegations dealt directly or
     ry support after a reasonable opportu        indirectly with the drug Propulsid,9 its pre-
     nity for further investigation or dis        scription, failure to warn, advise, treat and
     covery; and                                  properly monitor the deceased. The last
        (4) each denial in the pleading or        five allegations alternatively dealt with im-
     motion of a factual contention is war        proper diagnosis, monitoring and treat-
     ranted on the evidence or, for a specif-

9.   Propulsid was withdrawn from the market           in 2000.
ment. Unlike the allegations against the         ing material allegations of negligent treat-
drug manufacturers, allegations against          ment in the hospital leading to the death of
the hospital, nurse, and physicians were in      Henry White. Thus, the $50,000 sanction
the alternative.10                               was based upon only select allegations,
  The pleading specifically stated: "[T]hey      involving a drug the Doctors did not pre-
were negligent during the course of treat-       scribe. The trial court clearly rejected
ment given to Plaintiff Henry White in one       Henry's argument concerning alternative
or more of the following particulars...."        pleadings. Yet there was no proof of
  The face of the pleading clearly did not       which alternative allegations were directed
implicate every physician, the nurse, or         at the Doctors.
hospital in every allegation. Nor did the           Henry argues the petition did not specif-
pleading allege the Doctors committed any        ically accuse the two Doctors of prescrib-
particular act.                                  ing the drug. Instead, alternative acts of
  The Doctors' motions for sanctions             negligence against several physicians were
drew careful aim only at the allegations         made. Henry also argues the Doctors
that they prescribed Propulsid. "This            even filed special exceptions claiming the
Defendant is accused of negligence in            pleadings were vague, ambiguous, and un-
connection with an assertion that he pre-        clear. Henry argues the proper remedy
scribed the drug Propulsid to the dece-          for a pleading lacking specificity is special
dent, Henry White. In truth and in fact,         exceptions. See TEX.R. Civ. P. 91; see also
this Defendant never prescribed or pro-          Horizon/CMS Healthcare Corp. v. Auld, 34
vided Propulsid for Mr. White." Both             S.W.3d 887, 897 (Tex.2000) (an opposing
Doctors attached affidavits stating they         party should use special exceptions to
did not prescribe the drug and their             identify defects in pleading so that they
hearing testimony echoed this complaint.         may be cured). We agree.
The sanction motions continued: "The
medical records ... contain no references           [6] The Doctors counter that Henry's
to either physician [having] prescribed or       conduct was nevertheless sanctionable be-
approved Propulsid for the decedent."            cause chapter 10 provides "each allegation
Because both Doctors only treated the            or other factual contention in the pleading
deceased at the hospital where he died,          or motion has evidentiary support, or for a
there seems to be little doubt the Doctors       specifically identified allegation or factual
were not involved in the allegations deal-       contention, is likely to have evidentiary
ing with the prescription of Propulsid,          support after a reasonable opportunity for
failure to warn, advise, treat and properly      further investigation or discovery...."
monitor the deceased before admission to         TEX. Civ. PRAC. & REM.CODE ANN. § 10.001(3)
the hospital. Rather the proof showed            (Vernon 2002). Chapter 10's language is
their treatment of the deceased was after        facially stronger than the language of Fed-
his stroke and hospitalization.                  eral Rule ll(b), which requires "the allega-
  At the hearing, the trial court rejected       tions or other factual contentions" have or
as irrelevant most of Henry's attempts to        will likely have evidentiary support. See
cross examine or adduce evidence concern-        FED.R.CivP. ll(b)(3). The Seventh Cir-
10. Because the pleading asserted sixteen var-     erwise, that the pleading actually accused one
 ied allegations against nine individuals plus     of the Doctors with prescribing Propulsid,
 the hospital, this created a matrix of one        was a one in one hundred sixty possibility.
 hundred and sixty combinations. Stated oth-
cuit has ruled that rule 11 applies to all          cerning Propulsid. All of the federal cases
statements and each claim must have suffi-          have been or are being transferred by the
cient support; each must be investigated            Judicial Panel on Multidistrict Litigation
and researched before filing. Frantz v.             ("JPMDL") to the Propulsid Multidistrict
United States Powerlifting Fed., 836 F.2d           Litigation ("MDL"), currently pending in
1063, 1067 (7th Cir.1987). Indeed, the              the Eastern District of Louisiana. See,
case states that "Each claim must have              e.g., In re Propulsid Prods. Liab. Litig.,
sufficient support; each must be investi-           MDL No. 1355, 2003 WL 22383576
gated and researched before filing." Id.            (E.D.La Oct. 16, 2003). The Doctors only
at 1067. Our reading of chapter 10 agrees           complained that the allegations regarding
with this analysis. However, Frantz deals           the prescription of Propulsid did not apply
with an alleged conspiracy against only             to them. In short, the Doctors did not
three actors, all of whom allegedly would           contend or prove either that Propulsid was
have been legally responsible for each al-          safe or that the alternative allegations con-
leged act. See id. at 1064. A materially            cerning their hospital treatment were
different scenario exists where alternative         sanctionable. In the first instance, they
allegations are pled against multiple inde-         failed to show which of the sixteen allega-
pendent actors. The Fifth Circuit, the Doc-         tions applied to them.
tors argue, has also rejected the argument
"that one cannot sanction a party for a                The rules of civil procedure recite a
pleading that contains frivolous claims if it       myriad of circumstances allowing the join-
also contains nonfrivolous claims." Bay             der of parties and claims. For example,
State Towing Co. v. Barge Am. 21, 899               persons may be joined that are needed for
F.2d 129, 133 (1st Cir.1990). Rule 11               a just resolution. TEX.R. Civ. P. 39. All
sanctions cannot be escaped with respect            persons may be joined in one action as
to a document that is basically false or            defendants if there is asserted against
misleading or inadequately supported. Id.           them jointly, severally, or in the alterna-
We agree. However, Bay State Towing is              tive, any right to relief in respect of or
a two-party case, without alternative               arising out of the same transaction, occur-
claims. Id. Here, the Doctors only com-             rence, or series of transactions or occur-
plained and only offered proof that some            rences and if any question of law or fact
or only one of the alternative allegations          common to all of them will arise in the
did not apply to them.11 They neither               action. TEX.R. Civ. P. 40 (emphasis add-
contended nor proved that the allegations           ed).
surrounding the prescription of the unsafe             A party may set forth two or more
drug Propulsid were frivolous, unsupport-              statements of a claim or defense alterna-
ed, not investigated or not researched. To             tively or hypothetically, either in one
the contrary, the Doctors totally divorced             count or defense or in separate counts
and distanced themselves from these alle-              or defenses. When two or more state-
gations. At the time the petition was                  ments are made in the alternative and
filed, there were a significant number of              one of them if made independently
cases pending throughout the country con-              would be sufficient, the pleading is not
11. The Doctors pointed the trial judge to page      pleading, not presented or argued to the trial
  fifteen of Plaintiff's Original Petition; there    court. We base our decision on the motion,
  most of the allegations not pertaining to the      hearing, and evidence presented below, not
  aftercare are listed. Only on appeal, do they      new-found theories not argued or presented
  now also point to another portion of the           to the trial court.
made insufficient by the insufficiency of        but in the correspondingly liberal pleading
one or more of the alternative state-            allowances of the rules of procedure. By
ments. A party may also state as many            the black letter of the rules, Henry was
separate claims or defenses as he has            allowed to join multiple parties and claims.
regardless of consistency and whether            TEX.R. Civ. P. 48 & 40. Chapter 10 re-
based upon legal or equitable grounds or         quires each allegation or other factual con-
both. TEX.R. Civ. P. 48.                         tention in the pleading or motion to have
   Thus, relief in the alternative or of sev-    evidentiary support. TEX. Civ. PRAC. & REM.
eral different types is patently authorized.     CODE ANN. § 10.001(3) (Vernon 2002).
Where there are several counts in the            However, we do not read chapter 10 to
petition and entire damages are given, the       require that a claim or defense against one
verdict or judgment shall be good notwith-       party also apply to all other parties. An
standing the fact that one or more counts        alternative claim against a nurse need not
may be defective. TEX.R. Civ. P. 49.             apply against a physician. Nor does chap-
   "Each claim founded upon a separate           ter 10 require that the evidentiary support
transaction or occurrence and each defense       against one party also be evidence against
other than denials shall be stated in a          another party. Evidence against one phy-
separate count or defense whenever a sep-        sician need not support a claim against
                                                 another physician.12 Rather, the plain
aration facilitates the clear presentation of
                                                 meaning of chapter 10, in the context of
the matters set forth." TEX . R . Civ. P.
                                                 the rules of civil procedure, means each
50(a).
                                                 allegation or other factual contention has
The plaintiff in his petition or in a reply
                                                 evidentiary support as it pertains to the
setting forth a counterclaim and the de-
                                                 claim or defense made on behalf of, or
fendant in an answer setting forth a
                                                 against, one of the multiple parties. See
counterclaim may join either as indepen-
                                                 id.; see also TEX.R. Civ. P. 48, 40. We
dent or as alternate claims as many
                                                 sustain Henry's first two sub-issues.
claims either legal or equitable or both as
he may have against an opposing party.             [7] Henry also argues that due process
There may be a like joinder of claims            requires notice before other unrelated liti-
when there are multiple parties if the           gation can be considered as a basis for
requirements of Rules 39, 40, and 43 are         sanctions. The trial court, in its finding
satisfied. TEX.R. Civ. P. 51(a).                 number fifteen, specifically noted that
   We can only conclude our rules express-       Henry "consistently" engaged in a similar
ly permit parties to proceed on alternative      pattern. Yet, no notice was given to Hen-
theories of relief. Regency Advantage            ry that other allegations were an intended
Ltd. P'ship v. Bingo Idea-Watauga, Inc.,         basis of sanctions.
936 S.W.2d 275, 278 (Tex.1996); see TEX.R.         The Doctors argue that the trial court
Civ. P. 48.                                      was entitled to consider "other wrongs or
   Chapter 10's stringent pleading require-      acts" as evidence of motive and intent.
ments must be viewed not in a vacuum,            They cite Falk & Mayfield L.L.P. v.
                                                 Mol-zan,    974    S.W.2d      821,  824
12. We also agree that each claim must have
                                                 (Tex.App.-Hous-ton [14th Dist.] 1998,
 sufficient support; each must be investigated
 and researched before filing. See Frantz v.     pet. denied). Mol-

                                                   United States Powerlifting Fed.,    836
                                                   F.2d 1063, 1067 (7th Cir.1987).
zan is not a chapter 10 case. See id.           proof and is consistent with the theory of
Rather it deals with rule 13, and mentions      recovery stated in the pleadings. Id. (cit-
that evidence of two other suits helped         ing Jennings v. Tex. Farm Mortgage Co.,
establish the required element of bad faith.    124 Tex. 593, 80 S.W.2d 931 (1935);
Id. There was no contention concerning          Seu-reau v. Mudd, 515 S.W.2d 746
lack of notice, as here. The Doctors fur-       (Tex.Civ. App.-Houston [14th Disk] 1974,
ther argue Henry was not entitled to            writ ref d n.r.e.)). Here, no general relief
greater notice than he received, citing         was requested.
Sterling v. Alexander, 99 S.W.Sd 793, 798          Furthermore, in certain instances, the
(Tex.App.-Houston [14th Disk] 2003, pet.        type of relief requested must be specifical-
denied). According to Sterling, "So long        ly prayed for, or the trial court cannot
as the due process requirement of notice        grant it. Id. (rescission is one of these
and hearing are satisfied, the only require-    instances); see also Green Tree Accep-
ment of the motion contained in chapter 10      tance, Inc. v. Pierce, 768 S.W.2d 416, 421
is that it must '[describe] the specific con-   (Tex.App.-Tyler 1989, no writ). Because
duct violating Section 10.001.'" See id.        the applicable code requires a motion for
This is the very point Henry makes. Henry       sanctions thereunder to describe the spe-
had notice of a hearing and counsel attend-     cific conduct violating section 10.001, we
ed. However, there was neither pleading         hold that the Doctors' pleadings do not
nor notice that the Doctors would urge          support any sanctions under chapter 10 for
other specific conduct as a basis for sanc-     unrelated and unnoticed prior litigation.
tions. And the trial court's findings reflect   See TEX . Civ. PRAC . & REM . CODE
that it used the unnoticed conduct as a         ANN . § 10.002 (Vernon 2002); Davila v.
basis for the sanctions.                        World Car Five Star, 75 S.W.3d 537,
   [8] The power to sanction is of course       542-43 (Tex. App.-San Antonio 2002, no
limited by the due process clause of the        pet.) (under pleadings, sole grounds for
United States Constitution. See U.S.            sanctions at trial was section 17.50; other
CONST, amend. XIV; see TEX. CONST, art. I,      post-trial sanctions under rule 13 and
§ 19 (due course of law); TEX. Civ. PRAC. &     chapter 10 not considered by the trial
REM.CODE ANN. § 10.003 (Vernon 2002)            court); see also Metzger v. Sebek, 892
(notice of allegations and reasonable op-       S.W.2d 20, 51 (Tex. App.-Houston [1st
portunity to respond required); In re Ben-      Disk] 1994, writ denied) (where sanctions
nett, 960 S.W.2d at 40. Texas follows a         order refers to one specific rule, review
"fair notice" standard for pleading, which      limited to that rule).
looks to whether the opposing party can            We further observe, although not specif-
ascertain from the pleading the nature and      ically argued by Henry, that both Doctors
basic issues of the controversy and what        began their preamble of virtually identical
testimony will be relevant. Horizon/CMS         motions for sanctions, stating they were
Healthcare Corp., 34 S.W.3d at 896. In          filing the motions under rule 13, chapter 9
Burnett v. James, 564 S.W.2d 407, 409           of the Texas Civil Practice and Remedies
(Tex.Civ.App.-Dallas 1978, writ dism'd),        Code and chapter 10. However, their re-
the court observed that the general rule is     quested relief under identical paragraphs
that a prayer for general relief will author-   VIII, unequivocally stated: "This Defen-
ize judgment for any relief a trial court has   dant respectfully move[s] the Court, pur-
jurisdiction to grant so long as the judg-      suant to Chapters 9 and 11 of the Texas
ment is supported by the allegations and        Civil Practices & Remedies Code, to enter
                                                an order as follows...." The paragraph
then asks that pleadings be stricken, and         vestigation or discovery in contravention
for an order dismissing claims, and requir-       of the requirements of chapter 10 of the
ing Henry to pay expenses and attorneys           Texas Civil Practice and Remedies
fees and a monetary penalty into the court.       Code.
The prayer asked the court to grant the
motion "and that the Court award the               First, we are constrained to note the
relief requested hereinabove in its entire-     vast over-reach by the drafter of this find-
ty." There was no prayer for general            ing, which we assume to be the Doctors'
relief, and the only relief requested was       counsel. The trial court excluded
under Chapters 9 and 11. See TEX. Civ.          cross-examination      concerning        the
PRAC. & REM.CODE ANN. §§ 9.001-.014,            allegations against the Doctors contained
10.001-.006 (Vernon 2002). We sustain           in Henry's original petition, save and
Henry's issue regarding lack of notice and      except those narrowly dealing with the
pleadings that unrelated lawsuits would be      drug Propul-sid.13 Thus, at the outset, this
urged and used as a basis for sanctions.        finding is patently unsupportable and
       [9] Next, we address Henry's             erroneous.
     argument that the trial court did not         Secondly, and to this point, the finding is
 include any specific findings that would       no more than a general conclusory state-
justify a chapter 10 sanction. Chapter 10       ment. In sum, the finding could just as
     mandates the trial court shall describe
                                                well say, Henry had no evidence and could
           both the conduct and basis for its
                                                not reasonably expect to discover any evi-
 sanctions. TEX. Civ. PRAC. & REM.CODE
                                                dence. Evidence of or pertaining to what?
  ANN. § 10.005 (Vernon 2002).       The use
                                                The doctors were at the hospital and were
of the word "shall" in the statute indicates
                                                charged with the responsibility of diagnos-
   that the requirement for particularity in
the sanction order is mandatory.       Univ.    ing and treating a man suffering from a
    of Tex. at Arlington v. Bishop, 997         stroke. They allegedly failed to meet their
    S.W.2d 350, 355 (Tex.App.-Fort Worth        responsibilities in diagnosing the cardiac
    1999, pet. denied). Aside from setting      condition caused by the drug, failed to
    out the procedural history of the case      properly read and interpret the ECGs,
       and various statutory language, one      failed to administer proper treatment,
 conclusory finding is offered as support for   failed to follow up on ordered tests, and
       the sanctions. That finding merely       the pro se widow's husband died. The
     tracks the statutory language of           medical records are conspicuous by their
     chapter 10. Finding of fact 13 states:     absence from the record. Henry ordered
  [E]ach and all the allegations brought        the hospital and doctors' records, presum-
   against Drs. Low and Smith and there-        ably for review, but neither the trial court
   fore the lawsuit brought against these       nor the appellate court are afforded this
   physicians, did not, on January 31, 2002,    critical evidence. Under the finding, no
   and do not now, have evidentiary sup-        specific conduct is delineated. The finding
   port; nor were they on January 31, 2002      fails to explain the basis for the significant
  likely to have evidentiary support after a    sanction imposed. See TEX. Civ. PRAC. &
   reasonable opportunity for further in-       REM.CODE ANN. § 10.005 (Vernon 2002).

13. We would also note Henry may well have        cerning most of the pleading's allegations
 been deprived of a meaningful hearing, be-       against the doctors. Davila v. World Car Five
 cause his counsel was not allowed cross-ex-      Star, 75 S.W.3d 537, 544 (Tex.App.-San Anto-
 amination of the complaining doctors con-        nio 2002, no pet.)
   [10,11] By analogy, rule 13 imposes a       allegations that were not noticed or pled.
duty on the- trial court to point out with     Nor is the basis of the sanctions detailed
particularity the acts or omissions on         or explained. We can only conclude that
which sanctions are based. Mattly v.           Henry suffered harm in the form of a
Spiegel, Inc., 19 S.W.3d 890, 895 (Tex.        $50,000 sanction award. TEX.R.APP. P.
App.-Houston [14th Dist] 2000, no pet.).       44.1(a)(l), (2).
The requirement that the trial court state
the particulars of the good cause for im-        Because of our disposition, a discussion
posing sanctions is mandatory. Id. (citing     of the magnitude of the sanctions and other
GTE Communications Sys. Corp. v. Cur-          sub-issues are not necessary to the dis-
ry, 819 S.W.2d 652, 654 (Tex.App.-San An-      position of this appeal. TEX.R.APP. P. 47.1
tonio 1991, no writ)). A mere statement in
the order that good cause was shown is            We conclude that the trial court acted
insufficient to sustain a sanctions order.     outside the guiding rules and principles in
Id. Sanctions must be based on the acts or     determining Henry's representation war-
omissions of the represented party or          ranted sanctions pursuant to chapter 10.
counsel-not merely on the legal merit of       See Downer, 701 S.W.2d at 241-242. Spe-
the pleading. Zarsky v. Zurich Mgmt, 829       cifically, (1) chapter 10's stringent require-
S.W.2d 398, 400 (Tex.App.-Houston [14th        ments do not apply to alternative plead-
Dist.] 1992, no writ) (the trial court's       ings in the context presented; TEX.R. Civ.
finding that "the Court finds substantial      P. 40, 48; see also TEX. Civ. PRAC. & REM.
evidence that this Third Party lawsuit ...     CODE ANN. § 10.003; (2) specific conduct
was frivolous and of no merit" to be insuf-    alleged to violate Section 10.001 must be
ficient and harmful in the context of rule     supported by notice of the allegations;
13). We see no difference between a find-      TEX. Civ. PRAC. & REM.CODE ANN. § 10.003;
ing that says there was no evidence and its    and (3) the trial court must specifically
reciprocal, that there is substantial evi-     detail the sanctionable conduct in its order
dence the lawsuit was frivolous. We hold       and explain the basis for the sanction im-
that the findings of the trial court fail to   posed. TEX. Civ. PRAC. & REM.CODE
meet the mandatory statutory require-
                                               ANN. § 10.005; Rudisell, 89 S.W.3d at 238.
ments of chapter 10. TEX. Civ. PRAC. &
REM.CODE ANN. § 10.005 (Vernon 2002)              Accordingly, we reverse and render the
(court shall describe conduct the court de-    trial court's sanction order. TEX.R.APP. P.
termined violative and explain the basis for   43.2(c).
the sanction imposed); Rudisell v.
Pa-quette,      89    S.W.3d     233,   238
                                                Dissenting Opinion by Justice
(Tex.App.-Cor-pus Christi 2002, no pet.)
(in imposing sanctions, trial court is         CASTILLO, joined by Justice
mandated to specifically detail the            RODRIGUEZ.
sanctionable conduct in its order). We
                                                Dissenting Opinion by Justice
sustain Henry's issue regarding the lack of
specificity in the findings below.             CASTILLO.
   The harm to Henry is patent. The pri-          I respectfully dissent. The majority re-
mary basis of the large monetary sanction      verses the trial court's imposition of sanc-
was that alternative allegations were not      tions on three grounds: (1) Henry did not
shown to apply to the Doctors. The addi-       receive notice that the Doctors sought
tional basis for the sanction relied upon      sanctions under chapter 10 of the civil
practice and remedies code;l (2) the sanc-          On May 6, 2002, the trial court heard
tions order did not detail the sanctionable      Henry's motion to withdraw. Henry was
conduct or explain the basis for the sanc-       not present. The plaintiff appeared and
tion; and (3) Henry's alternative pleading       stated she had no objection to Henry's
allegations did not violate chapter 10. I        withdrawal. She told the judge she in-
would conclude that Henry first substi-          tended to hire another lawyer. The trial
tutes arguments on appeal for those he did       court signed an order granting Henry's
not preserve below, then urges us to sub-        motion to withdraw that same day.
stitute our judgment for the trial court's.         The Doctors appeared and answered.
I would defer to the trial court's discretion.   On May 28, 2002, they filed the motions for
                                                 sanctions that are the subject of this ap-
   /.    PRESERVATION OF ERROR                   peal. Neither the plaintiff nor Henry filed
                                                 a written response to the sanctions mo-
        A.   Procedural Background               tions.
  In September of 2001, Henry requested             On June 10, 2002, Henry prepared,
copies of medical records relevant to this       transmitted to the court under the law
suit. See TEX . REV . CIV . STAT . ANN . art.    firm's letterhead, and filed a notice of non-
4590i, § 4.01(d) (Vernon Supp.2003) (since       suit, signed by the plaintiff pro se. On
repealed). He also sent a notice letter,         July 2, 2002, the trial court signed an
which extended the two-year statute of           order of nonsuit.
limitation for filing the suit to February 5,      The sanctions proceedings continued.
2002. See id., § 4.01(a), (c). He filed suit     After notice to the parties, the trial court
against the Doctors, among others, on Jan-       held a sanctions hearing on July 30, 2002.
uary 31, 2002.                                   Henry appeared at the hearing by counsel
   Also on January 31, 2002, Henry filed a       but not in person.
motion to withdraw, stating as good cause
for the withdrawal "that a conflict of inter-       B.     Pre-Sanction Preservation of
est has arisen which prevents the Law                     Error of the Notice Issue
Offices of Thomas J. Henry from continu-            On appeal, Henry complains he did not
ing representation of any of the Plaintiffs      have notice that the Doctors sought sanc-
[sic] in this case." On April 24, 2002, the      tions under chapter 10 of the civil practice
trial court notified Henry that his motion       and remedies code. He argues that the
to withdraw was set on May 6, 2002. Hen-         sanctions motions requested relief only un-
ry filed a motion for appointment of an          der rule 13 2 and chapters 9 3 and II, 4
agent for service under rule 103 on April        citing paragraphs VII and VIII of each
29, 2002. See TEX. R. Civ. P. 103. That          motion, which referred only to rule 13 and
same day, he requested issuance of citation      chapters 9 and 11. As a consequence,
on all of the defendants. The trial court        Henry maintains in a sub-issue of his chal-
granted the rule 103 motion by order             lenge to the trial court's exercise of discre-
signed April 30, 2002.                           tion in sanctioning him, the trial court

1. TEX . Civ. PRAC . & REM .CODE ANN . §§        3. TEX. Civ. PRAC. & REM.CODE ANN. §§
  10.001-                                          9.00-.014
  .005 (Vernon 2002).                              (Vernon 2002).
                                                 4. TEX . Civ. PRAC . & REM .CODE ANN . §§
2. TEX.R. Civ. P. 13.
                                                   11.001-
                                                   .104 (Vernon 2002).
abused its discretion in basing its sanctions   intended to seek sanctions under chapter
order on evidence of Henry's filing of oth-     10, Henry's counsel did not object to the
er lawsuits. I would overrule this              lack of notice before, during, or after the
sub-issue for two reasons: (1) Henry had        sanctions hearing. He had repeated op-
actual notice the Doctors sought sanctions      portunities to do so.
under chapter 10; and (2) Henry waived his
objection to lack of notice under chapter 10              2.     Waiver of Notice
by not objecting on that basis before, dur-        Before the sanctions hearing started, the
ing, or after the sanctions hearing.            trial court discussed with the attorneys
                                                how long each side would need to present
            1.    Actual Notice                 their case:
   The introductory paragraphs of both             THE COURT: All right. And it's your
motions stated that the motions were filed           motion, [Doctors' Counsel]?
pursuant to rule 13 and chapters 9 and 10.         [DOCTORS' COUNSEL]: It is, yes, sir.
Also, the motions seek, among other re-
                                                   THE COURT: Counsel?
quested relief, "An Order that Plaintiffs
and/or Plaintiffs' former counsel, Thomas          [HENRY'S COUNSEL]: [Henry's
J. Henry, pay a monetary penalty into the            Counsel] for one of the Respondents,
Court as the Court deems appropriate to              the Law Offices of Thomas J. Henry.
punish them for this egregious conduct             THE COURT: All right. And you're
and to deter them from similar conduct in            estimating an hour and a half or two
the future." Payment of a monetary pen-              hours, [Doctors' Counsel]?
alty into the registry of the court is a           [DOCTORS' COUNSEL]: I am, Your
sanction available only under chapter 10.            Honor.
See Sterling v. Alexander, 99 S.W.Sd 793,          THE COURT: Mr.-[Henry's Counsel],
799-800 (Tex.App.-Houston [14th Dist.]               what is your estimate?
2003, pet. denied). I would find that Hen-
                                                   [HENRY'S COUNSEL]: My estimate
ry had actual notice the Doctors pursued
                                                     is five to ten minutes.
sanctions under chapter 10. Further,
chapter 10 allows imposition of a sanction         THE COURT: Okay.
to deter repetition of the sanctioned con-         [DOCTORS' COUNSEL]: Your Honor,
duct. TEX . Civ. PRAC . & REM . CODE                 the reason for the disparity, obviously,
ANN . § 10.004(b) (Vernon 2002). I would             is that I have quite a bit of evidence
find that evidence of similar conduct in             that I believe is relevant and available
other cases is relevant to the trial court's         for the Court, and that is the reason
assessment of an appropriate sanction                for the row of individuals seated be-
under chapter 10. See TEX.R. EVID. 401,              hind me. And I think that under both
402, and 405. Accordingly, I would hold              Rules 9 and 10 of the Civil Practice
that Henry's actual notice that the Doctors          and Remedies Code evidence on this
sought sanctions under chapter 10 also put           issue is pertinent.
him on actual notice that the Doctors could          So, in-in light of that, Your Honor, I'm
introduce evidence of his conduct in                 announcing an hour and a half to two
similar lawsuits. See Sterling, 99 S.W.3d            hours.
at 797.                                           Henry's counsel did not object that Hen-
  Moreover, even assuming, arguendo,            ry did not have notice that the Doctors
that the Doctors' sanctions motions did not     sought sanctions under chapter 10. The
provide actual notice to Henry that they
Doctors' counsel raised chapter 10 a sec-        [HENRY'S COUNSEL]: Your Honor,
ond time:                                          I'm going to object. He's arguing all
  THE COURT: All right. Did you ask                kinds of facts that he never put in
    for some sort of relief against the            evidence.
    Plaintiff individually and in her repre-     THE COURT: Sustained.
    sentative capacity, [Doctors' Counsel]?       Once again, Henry's counsel did not ob-
  [DOCTORS' COUNSEL]: Your Honor,              ject that Henry did not have notice that
    I think the motion is couched in terms     the Doctors sought sanctions under chap-
    of asking for sanctions against the law    ter 10. The Doctors' counsel then asked
    firm of Thomas J. Henry and/or Mrs.        the court for relief available only under
    White. I will tell you that I have no      chapter 10:
    intention of asking this Court to im-         [DOCTORS' COUNSEL]: I would re-
    pose sanctions against Mrs. White, be-          spectfully ask this Court to enter a
    cause my arguments in my complaint              sanction in this case of $100,000.00
    deal with the actual filing of the suit         against the Thomas J. Henry law
    at a time when she was represented.             firm. I would ask the Court to Order
    And Rule 10 of the Texas Civil Prac-            that they pay that as a penalty into
    tices and Remedies Code specifically            the court, to serve as a deterrent to
    states that sanctions may not be                that law firm and others similar-simi-
    awarded against a represented party             larly-situated or so inclined to engage
    under that provision. . . .                     in similar conduct. . . .
  Henry's counsel again did not object           Henry's counsel responded:
that Henry did not have notice that the          [HENRY'S COUNSEL]: Your Honor,
Doctors sought sanctions under chapter             I'll be brief. This hearing has spun
10. After the close of evidence, the trial         into something that I'm sure it didn't
court heard the arguments of counsel.              begin to be. This is a case for sanc-
The Doctors' counsel argued:                       tions under Rule 9 and Rule 13.
                                                   There is a very high standard that
  [DOCTORS' COUNSEL]: Now, I think
                                                   Doctors' counsel has to go and prove
    that under Chapter 10 of the Civil
                                                   in order to merit those sanctions.
    Practices and Remedies Code wherein
                                                   The burden is on Mr. Oncken to prove
    it states that the Court can enter a
                                                   that these-in this particular lawsuit,
    sanction to deter similar conduct
                                                   these two defendants were sued
    and—and by that, require that the
                                                   base-lessly and groundlessly. . . .
    offending party pay a penalty into the
    Court, that it must be a determination       Henry's counsel did not object, however,
    that the pleading in White was             that Henry had no notice under chapter 10
    groundless. It must be followed by a       that Henry's conduct. in other lawsuits
    meaningful sanction. And given the         would be at issue in the sanctions hearing.
    wealth of the Thomas J. Henry law          The Doctors' counsel countered:
    firm, as evidenced by the advertising        [DOCTORS' COUNSEL]: Both Chap-
    effort that they have put in over the           ter 9 and Chapter 10 of the Civil
    years, including the erection of a wall         Practice and Remedies Code specifi-
    right outside Driscoll Hospital alert-          cally state that the signing of a plead-
    ing patients and parents that they              ing constitutes a certificate by the sig-
    take C.P. cases, cerebral palsy—                natory that to the signatory's best
     knowledge, information, and belief,        the Doctors would proceed under chapter
     formed after reasonable inquiry, the       10. See Negrini v. Beale, 822 S.W.2d 822,
     pleading is not groundless and             824 (Tex.App.-Houston [14th Dist] 1992,
     brought in bad faith. . . .                no writ) (summary-judgment hearing). He
Yet again, Henry's counsel did not object       did not seek a recess or continuance when
that Henry did not have notice that the         it became apparent from the Doctors' ar-
Doctors sought sanctions under chapter          guments and presentation of witnesses
10. The Doctors' counsel continued:             that his conduct in other lawsuits was at
[DOCTORS' COUNSEL]: Mr. Henry                   issue. See id. at 823-24. Henry "not only
signed the pleading. Mrs. White came            failed to object, but appeared, did not re-
to the Henry firm for legal advice. That's      quest a continuance, and fully participated
why Chapter 10 says you can't seek              in the hearing." See Powers v. Palacios,
sanctions for filing a groundless pleading      111 S.W.2d 716, 718 (Tex.App.-Corpus
against a party when they're represented        Christi 1989, writ denied). On this record,
by counsel. It's because they're not            I would find that Henry waived his objec-
lawyers. They depend on and rely upon           tion that he had no notice that the Doctors
the advice, the instruction, and the actions    sought sanctions under chapter 10 as well
of their attorneys. Both Chapter 9 and          as under rule 13 and chapters 9 and 11.
Chapter 10 of the Civil Practice and            See id.
Remedies Code specifically state that the         Further, when the Doctors called Dr.
signing of a pleading constitutes a             Robert Mastin, one of the witnesses about
certificate by the signatory that to the        whose testimony Henry now complains,
signatory's best knowledge, information,        Henry's counsel objected as follows:
and belief, formed after reasonable inquiry,      [HENRY'S COUNSEL]: Your Honor,
the pleading is not groundless and brought          we'd object to this witness. He's not
in bad faith....                                    a party to this case and has never
   For the fifth time, Henry's counsel did          been a party to this case. I'm not
not object to any lack of notice under              sure what relevance any testimony
chapter 10. Finally, Henry's counsel did            that he has has to do with the issues
not object when the trial court pro-                of whether or not a baseless lawsuit
nounced, from the bench after the hearing,          was filed in this case.
a sanction that was available only under          [DOCTORS' COUNSEL]: Response,
chapter 10. A party waives the right to             Your Honor?
object to a lack of notice by participating       THE COURT: No. Overruled.
in a hearing without notifying the court of
                                                   Dr. Mastin then testified without further
its objection on notice grounds. See TEX.
                                                objection until the Doctors offered a copy
R.APP. P. 33.1; see also Manning v. North,
                                                of a petition and citation in another lawsuit
82 S.W.3d 706, 714 (Tex.App.-Amarillo
                                                filed by Henry against Dr. Mastin. Hen-
2002, no pet.) (dismissal hearing); Wyatt v.
                                                ry's counsel objected to the exhibit on
Purr's Supermarkets, Inc., 908 S.W.2d
                                                relevancy grounds:
266, 270 (Tex.App.-El Paso 1995, writ de-
nied) (summary-judgment hearing). Henry            THE COURT: Objection?
did not complain before, during, or after the      [HENRY'S COUNSEL]: Same objec-
sanctions hearing that he had no notice              tion, Your Honor, as to relevance.
                                                   THE COURT: Overruled. Admitted
                                                     over objection.
   Dr. Mastin then testified, without objec-      The Doctors' counsel then called Dr.
tion, to the particulars of that lawsuit. He    Christine Canterbury. Henry's counsel
said he had never treated the patient in-       again asked for a running objection:
volved. He also said he had compared the          [HENRY'S COUNSEL]: Your Honor,
allegations in that petition with the allega-       if this is going to be cumulative, I
tions in the petition Henry filed in this           have a running objection as to rele-
case, and they were "word-for-word" iden-           vance. Dr. Canterbury didn't have
tical except for the names of the parties.          anything to do with the White case.
Also without objection, Dr. Mastin then           THE COURT: Would you like to stipu-
testified to the contents of a notice letter        late as to what her testimony might
sent by Henry to Dr. Mastin in a second             be?
case. Henry's counsel did not object until
                                                  [HENRY'S COUNSEL]: I have no idea
the Doctors' counsel offered the notice let-        what her testimony is going to be,
ter itself into evidence. At that point,            Your Honor.
Henry's counsel asked for a running objec-
                                                  THE COURT: Fine. Call your witness.
tion:
   [HENRY'S COUNSEL]: Running ob-                 Dr. Canterbury then confirmed Dr.
      jection as to relevance, Your Honor.      Mastin's testimony, without objection, that
                                                another doctor and she had been sued by
   THE COURT: I'll overrule it. You can
                                                Henry even though they were not mem-
      reassert it later if they're not—
                                                bers of the practice group at the time the
   [DOCTORS' COUNSEL]: I'll tender              patient was treated. The Doctors then
      Exhibit 9 to the Court, Your Honor,       sought to introduce a notice letter in a
      and ask that it be admitted.              third suit. Henry's counsel objected:
   THE COURT: Exhibit 9 is admitted               THE COURT: Objection?
      over objection.                              [HENRY'S COUNSEL]: No objection,
   Dr. Mastin then testified, without objec-         Your Honor, except for relevance.
tion, that after sending the notice letter,       THE COURT: Overruled. Admitted
Henry filed suit on the claim against the            over objection.
other doctors in his practice group and
                                                  Dr. Canterbury then testified, without
him. He said that two of the other doctors
                                                objection, that she had not treated the
were not members of the practice group at
                                                patients named in the notice letter. When
the time the patient was treated.
                                                the Doctors offered a letter from Henry
  Also without objection, Dr. Mastin went       that withdrew the notice letter, Henry's
on to testify that Henry withdrew from          counsel had no objection:
representing the plaintiffs in both of the        [DOCTORS' COUNSEL]: Offer Exhibit
other two cases, just as he had in this case.        12, Your Honor.
The trial court sustained Henry's counsel's
                                                  [HENRY'S COUNSEL]: No objections,
objection on authenticity grounds to a
                                                     Your Honor.
Nueces County District Clerk docket
sheet. However, by the time Henry's               THE COURT: Admitted.
counsel had objected, Dr. Mastin had al-          A party should object every time inad-
ready testified about the information con-      missible evidence is offered. Ed Rachal
tained on the docket sheet: Henry had           Found, v. D'Unger, 117 S.W.3d 348, 368
withdrawn from the second case, and it          (Tex.App.-Corpus Christi 2003, pet. filed)
had been dismissed.                             (en bane). If a party objects to certain
evidence but later does not object when         on that basis, and he did not object to
the same evidence is introduced, the party      proceeding under chapter 10 even after
waives its objection. Richardson v. Green,      repeated references by opposing counsel to
677 S.W.2d 497, 501 (Tex.1984). Henry's         its provisions. The trial court ruled on
counsel attempted a running objection, an       Henry's objections within that context, un-
exception to the general rule that a party      aware of Henry's reason for objecting on
must continue to object and get a ruling        relevancy grounds. Thus, on this record, I
for each individual instance of inadmissible    would conclude that Henry did not pre-
testimony. See In re A.P., 42 S.W.3d 248,       serve error over his objections to Dr.
260-61 (Tex.App.-Waco 2001, no pet.).           Mas-tin and Dr. Canterbury's testimony.
However, the trial court overruled Henry's      See Duperier v. Tex. State Bank, 28
counsel's first request for a running objec-    S.W.3d 740, 755-56 (Tex. App.-Corpus
tion, and counsel did not pursue the second     Christi 2000, pet. dism'd by agr.).
request to a ruling as required by rule
33.1(a). See id.; see also TEX . R . APP . P.      C.     Post-Sanctions Preservation
33.1 (a). The same evidence came in else-               Regarding the Specificity of
where without objection.                                   the Sanctions Order
   This Court has held that the determina-         On July 31, 2002, the trial court signed
tion of whether a prior objection is suffi-     an order granting the Doctors' motions for
cient to cover a subsequent offer of similar    sanctions. It ordered payment by Henry
evidence requires a case-by-case analysis.      of $50,000 into the registry of the court, or
Correa v. GMC, 948 S.W.2d 515, 518 (Tex.        $25,000 for each of the Doctors' motions.
App.-Corpus Christi 1997, no pet.). Con-        On August 2, 2002, the trial court signed
siderations in determining the adequacy of      findings of fact and conclusions of law
the objection are: (1) the proximity of the     regarding its imposition of sanctions as
objection to the subsequent testimony; (2)      well as a revised order incorporating its
which party has elicited the subsequent         findings and conclusions. On August 26,
testimony; (3) the nature and similarity of     2002, Henry filed a post-sanctions motion
the subsequent testimony as compared to         for new trial and a motion to modify, va-
the prior testimony and objection; (4)          cate, or reform the sanctions order (the
whether the subsequent testimony has            "First Post-Sanctions Motions"). See
been elicited from the same witness; (5)        TEX.R. Civ. P. 329b. The First Post-Sanc-
whether a running objection was requested       tions Motions cross-reference and incorpo-
or granted; and (6) whether any other           rate one another.
circumstances suggests that the objection
should not have to be re-urged. Id. at           1.   The First Post-Sanctions
518-19.                                          Motions
   Here, Henry did not argue to the trial          Among thirty-nine points urged as
court that his relevancy objections were        grounds for vacating the sanctions order,
based on the Doctors' allegations of viola-     Henry asserted in the First Post-Sanc-
tions of rule 13 and chapters 9 and 11, not     tions Motions that: (1) the Doctors' mo-
chapter 10. Had he done so, application of      tions for sanctions did not request relief
the Correa factors might lead to the con-       under chapter 10; (2) the trial court
clusion that Henry adequately preserved         abused its discretion in allowing and con-
his objections to the testimony. See id.        sidering evidence of Henry's past conduct
However, Henry did not specifically object      in other lawsuits or claims; and (3) the
                                                alternative pleading allegations against the
Doctors are legally and factually insuffi-        ings of good cause justifying the imposi-
cient to support the imposition of sanc-          tion of sanctions. . . . Furthermore, the
tions. Nowhere in the First Post-Sanc-            order fails to explain the basis for the
tions Motions did Henry assert that the           sanction imposed as required by section
findings in the sanctions order did not           10.005 of the Texas Civil Practice and
adequately detail the sanctionable conduct        Remedies Code."
or explain the basis for the sanction.           (2) "The sanctions order here, however,
                                                 does not specifically identify the offend
      2.     The Supplemental                    ing allegation or factual contention, but
            Post-Sanctions Motion                instead states broadly that 'each and all
   On September 23, 2002, more than thir-        of the allegations' were not likely to
ty days after the trial court signed the         have evidentiary support after a reason
modified sanctions order on August 2,            able opportunity for investigation.
2002, Henry filed his "First Supplemental        This
Motion to Vacate, Modify, Correct or Re-         vague statement does not satisfy Chap
form Modified Judgment" (the "Supple-            ter 10's specificity requirement."
mental Post-Sanctions Motion"). Among            (3) "The order does not state,
thirteen grounds, the Supplemental               with
Post-Sanctions Motion asserted for the           particularity, good cause for
first time that "This Court's sanctions          finding
order fails to sufficiently set out this         that the pleadings in this case
Court's findings of good cause justifying        were
the imposition of sanctions."                    groundless and brought in bad faith for
                                                 purposes of harassment or that
     3. The Post-Sanctions Hearing               the
   The trial court heard Henry's post-sanc-      pleadings did not and could not, after a
tions motions on October 15, 2002. Henry         reasonable opportunity for
appeared for this hearing in person. The         discovery,
trial court sustained the Doctors' objection     have an evidentiary basis. Instead,
to reopening the evidence but permitted          the
Henry to make a bill of exceptions of his        order merely recites the rule and the
testimony. By written orders that same           chapter, without including a specific de
date, the trial court denied the motion for      scription of the offending conduct or a
new trial and the supplemental motion to         reason for imposing the sanctions."
modify. The record does not reflect an         However, the trial court decided that Hen-
order denying the original motion to modi-     ry's specificity objections, filed more than
fy, vacate, or reform the sanctions order.     thirty days after the modified sanctions
                                               order, came too late to be considered.
    4. The Reconsideration Motion
 On November 5, 2003, Henry filed a                 5.    The Reconsideration Order
motion to either reconsider or modify, cor-       By written order dated November 14,
rect or reform the modified judgment (the      2002, the trial court found that the First
     "Reconsideration Motion"). Among          Post-Sanctions Motions "were the only
 nineteen grounds, Henry urged: (1) "This      timely filed motions on August 22, 2002."
            Court's sanctions order fails to   It specifically found: "All new arguments
  sufficiently set forth this Court's find-    and requests for relief not timely filed
                                               within 30 days of the August 2, 2002 order,
                                               are DENIED because they were not timely
                                               raised." See Willacy County Appraisal
                                               Review Bd. v. S. Padre Land Co., 767
                                               S.W.2d 201, 202 (Tex.App.-Corpus Christ!
                                               1989, no writ) ("We hold, therefore, that all
                                               motions for new trial to be timely filed,
whether original or amended must be filed       quately detail the sanctionable conduct or
within thirty days after the judgment is        explain the basis for the sanctions when he
signed by the trial court.").                   failed to timely raise the objection in his
                                                post-sanctions motions and then failed to
D.     Appellate Preservation Regarding         challenge the trial court's untimeliness rul-
     the Specificity of the Sanctions           ing on appeal. I turn to the third ground
                   Order                        on which the majority reverses the sanc-
   Henry raises forty-four issues and           tions order, that an alternative pleading
sub-issues on appeal. In none of them does      cannot serve as the basis of sanctions un-
he challenge the trial court's denials of his   der chapter 10.
post-sanctions motions. Specifically, Henry
does not assert on appeal that the trial                //.   THE TRIAL COURT'S
court abused its discretion in denying as                      DISCRETION
untimely all grounds not raised within thir-       A.     Presumptions and Burdens of
ty days of the sanctions order. Henry                   Proof in Sanctions Motions
raised his complaint regarding the specific-       Generally, courts presume that plead-
ity of the sanctions order for the first time   ings and other papers are filed in good
on September 23, 2002, which was untime-        faith. GTE Communications Sys. Corp. v.
ly. I would not consider Henry's specificity    Tanner, 856 S.W.2d 725, 730 (Tex.1993)
complaint in this appeal. See id. A             (orig.proceeding). In determining if sanc-
complaining party's failure to object to the    tions are proper, the trial court must ex-
form of the sanctions order waives the          amine the circumstances existing when the
error for appellate review. Alexander v.        litigant filed the pleading. See Griffin In-
Alexander, 956 S.W.2d 712, 714-15 (Tex.         dus, v. Grimes, No. 04-02-00430-CV, 2003
App.-Houston [14th Dist.] 1997, pet. de-        WL 1911993, *4 (Tex.App.-San Antonio
nied); Campos v. Ysleta Gen. Hosp., Inc.,       Apr. 23, 2003, no pet.) (applying good-faith
879 S.W.2d 67, 70 (Tex.App.-El Paso 1994,       presumption to chapter 10); see also
writ denied); McCain v. NME Hosp., Inc.,        Home Owners Funding Corp. of Am. v.
856 S.W.2d 751, 756 (Tex.App.-Dallas 1993,      Scheppler, 815 S.W.2d 884, 889
no writ); Bloom v. Graham, 825 S.W.2d           (Tex.App.-Corpus Christi 1991, no writ)
244, 247 (Tex.App.-Fort Worth 1992, writ        (applying good-faith presumption to rule
denied). I would find that Henry failed to      13). The trial court considers the acts or
preserve for our review his complaint           omissions of the represented party or
about the specificity of the sanctions order.   counsel, not merely the legal merit of a
See TEX.R.APP. P. 33.1(a); see also Alexan-     pleading or motion. Grimes, 2003 WL
der, 956 S.W.2d at 715.                         1911993, * 4; N.Y. Underwriters Ins. Co.
  Thus, given this record, I would hold         v. State Farm Mut. Auto. Ins. Co., 856
that Henry waived two of the three              S.W.2d 194, 205 (Tex.App.-Dallas 1993,
grounds the majority finds for reversing        no writ). The party seeking sanctions bears
the sanctions order: (1) Henry waived his       the burden of overcoming the presumption
complaint that he did not receive notice        of good faith in the filing of pleadings.
that the Doctors sought sanctions under         Tanner, 856 S.W.2d at 731.
chapter 10 when he failed to object or seek
a continuance of the sanctions hearing on              B. Standard of Review
that basis; and (2) Henry waived any com-         Imposing an available sanction is left to
plaint the sanctions order did not ade -        the sound discretion of the trial court.
Koslow's v. Mackie, 796 S.W.2d 700, 704            extension, modification, or reversal of
(Tex.1990); Rudisell v. Paquette, 89               existing law or the establishment of
S.W.3d 233, 236 (Tex.App.-Corpus Christ!           new law;
2002, no pet.). We may not substitute our             (3) each allegation or other factual
judgment for the trial court's. Davis v.           contention in the pleading or motion
Huey, 571 S.W.2d 859, 862 (Tex.1978).              has evidentiary support or, for a spe
The test for determining if the trial court        cifically identified allegation or factual
abused its discretion is whether it acted          contention, is likely to have evidentia
without reference to any guiding rules and
                                                   ry support after a reasonable opportu
principles to the extent the act was arbi-
                                                   nity for further investigation or dis
trary or unreasonable. Downer v. Aqua-
                                                   covery; and
marine Operators, Inc., 701 S.W.2d 238,
241-42 (Tex.1985); Alejandro v. Bell, 84              (4) each denial in the pleading or
S.W.3d 383, 392 (Tex.App.-Corpus Christi           motion of a factual contention is war
2002, no pet.). A trial court abuses its           ranted on the evidence or, for a specif
discretion in imposing sanctions only if it        ically identified denial, is reasonably
bases its order on an incorrect view of the        based on a lack of information or be
law or an erroneous assessment of the              lief.
evidence. Randolph v. Jackson Walker,          TEX. Civ. PRAC. & REM.CODE ANN. §   10.001
L.L.P.,     29      S.W.3d     271,    276     (Vernon 2002). A court may punish viola-
(Tex.App.-Houston [14th Dist] 2000, pet.       tions of chapter 10 by imposing sanctions
denied). A party attacking a trial court's     on the "person, [the] party represented by
decision< as an abuse of discretion carries    the person, or both" who "has signed [the]
a heavy burden. Johnson v. Fourth Court        pleading or motion in violation of Section
of Appeals, 700 S.W.2d 916, 917 (Tex.1985)     10.001." TEX. Civ. PRAC. & REM.CODE
(orig.pro-ceeding).                            ANN. § 10.004(a) (Vernon 2002).

              C.    Analysis                      In two sub-issues, Henry complains the
  1.     The Trial Court's Discretion to       trial court abused its discretion in conclud-
       Sanction under Chapter 10               ing that a pleading that asserts alternative
                                               claims without identifying particular defen-
  Section 10.001 of chapter 10 provides:       dants to which each claim applies is
  The signing of a pleading or motion as       sanc-tionable.     He      maintains     that
  required by the Texas Rules of Civil         allegations in the petition here asserted
  Procedure constitutes a certificate by       claims against the Doctors for negligent
  the signatory that to the signatory's best   acts other than prescribing Propulsid.
  knowledge, information, and belief,          Henry argues that the Doctors did not
  formed after reasonable inquiry:             meet their burden of overcoming the
       (1) the pleading or motion is not       presumption of good faith that attached to
    being presented for any improper pur       the papers he filed. In a separate
    pose, including to harass or to cause      sub-issue, he asserts that the only way his
    unnecessary delay or needless              subjective bad faith could be proved was
    in                                         through his testimony at the sanctions
    crease in the cost of litigation;          hearing, which was lacking. However,
       (2) each claim, defense, or other le    unlike rule 13, section 10.001 of chapter 10
    gal contention in the pleading or mo       does not expressly include bad faith as an
    tion is warranted by existing law or       element of the conduct it prohibits. See id.
    by a nonfrivolous argument for the         § 10.001. Further, assum-
ing, without deciding, that section 10.001 of      signed the order of withdrawal.5 I would
chapter 10 imposes an implied bad-faith            find that the allegations in the petition and
element,      I would conclude that                the nonsuit of the claims after the Doctors
sanctiona-ble conduct may be proved by             filed motions for sanctions support an in-
circumstantial as well as direct evidence.         ference that Henry filed suit knowing that
See Schex-nider v. Scott & White Mem'l             the Doctors only had an indirect connec-
Hosp.,      953     S.W.2d 439, 441-42             tion to the claim and that the mere filing of
(Tex.App.-Austin 1997, no writ) (holding           suit would have a coercive effect. See id.
that imposition of sanctions against               I would conclude that some evidence rea-
attorney who filed medical malpractice             sonably supports the imposition of sanc-
claim against twenty-nine physicians and           tions. See Zorilla v. Wahid, 83 S.W.3d
then non-suited all twenty-nine was                247, 255 (Tex.App.-Corpus Christi 2002, no
supported by reasonable inference that             pet.) ("An abuse of discretion does not
attorney joined physicians knowing they            exist if the trial court bases its decision on
only had indirect connection to claim and          conflicting evidence and some evidence
that mere filing of suit would have coercive       reasonably supports the trial court's deci-
effect on claim).                                  sion.").
   The trial court took judicial notice of the        Also as a sub-issue within his first issue,
pleadings in this case, and I agree with the       Henry complains of the trial court's exclu-
majority that allegations in the petition          sion of evidence Henry offered during the
that asserted claims against the Doctors           hearing on his post-sanctions motions, evi-
for negligent acts other than prescribing          dence he asserts demonstrated his reason-
Propulsid is some evidence mitigating              able basis for filing suit against the Doc-
against the imposition of sanctions. How-          tors. Whether a motion for new trial will
ever, the petition shows that the Doctors          be granted or denied is within the trial
had only indirect connections to the claims.       court's discretion. Jackson v. Van Win-
Further, Dr. Mastin and Dr. Canterbury             kle, 660 S.W.2d 807, 809 (Tex.1983), over-
testified that Henry had filed a                   ruled on other grounds, Moritz v. Preiss,
"word-for-word" identical lawsuit against          121 S.W.3d 715 (Tex.2003). Other than
them without a reasonable basis and                arguing that he was not subpoenaed by the
asserted unfounded claims in two more              Doctors to appear at the sanctions hearing,
cases. The witnesses also testified that           Henry did not explain his failure to file a
Henry quickly withdrew from his                    written response to the sanctions motions
representation of the claimants in the other       or his failure to appear and present evi-
cases, which Henry also had pursued                dence to the court at the sanctions hear-
without a reasonable basis. Further, I am          ing. He did not offer proof that the evi-
unpersuaded         that     the     looming       dence had come to his attention only after
statute-of-limitation deadline excuses             the sanctions hearing. Nor did he main-
Henry's pleading. Henry had represented            tain he had used due diligence in procuring
the plaintiff at least four months before he       the evidence or any of the other predicates
filed the petition, long enough to obtain          that would have informed the trial court's
the relevant medical records. Moreover,            exercise of discretion in considering the
Henry continued to represent the plaintiff         evidence after having ruled already on the
after he filed a motion to withdraw as
well as after the trial court                        post-sanctions hearing, Henry said he with-
                                                     drew because he was not interested in pursu-
5. The motion to withdraw cited conflict of          ing the case.
  interest as Henry's basis for withdrawal. In a
  bill of exceptions of Henry's testimony at the
Doctors' sanctions motions. See Jackson,       S.W.2d 20, 53 (Tex.App.-Houston [1st
660 S.W.2d at 809-10; see also Dankowski       Dist.] 1994, writ denied) (reversing as
v. Dankowski, 922 S.W.2d 298, 305 (Tex.        abuse of discretion rule 13 sanction of
App.-Fort Worth 1996, writ denied). Fi-        $994,000 plus interest). Thus, I also would
nally, Henry does not challenge on appeal      overrule Henry's second issue complaining
the trial court's denial of his motion for     of the amount of the sanction.
new trial. I would hold that the trial court      Accordingly, I would affirm the
did not abuse its discretion in refusing to    trial court's sanctions order.
consider the evidence Henry offered in
support of his post-sanctions motions. See
Dankowski, 922 S.W.2d at 305.
  I have scrutinized the trial court's find-
ings     and     conclusions    under     an
abuse-of-discretion standard. I cannot
conclude that the trial court, in
sanctioning Henry, acted unreasonably,
arbitrarily, or without reference to chapter
10 of the civil practice and remedies
code. See Zorilla, 83 S.W.3d at 255. I
would overrule Henry's first issue
complaining of the trial court's exercise of
discretion in sanctioning him.

   2.      The Trial Court's Discretion
        in Determining the Amount
                of Sanction
   Henry's second issue claims that the
$50,000 sanction is excessive. An imposed
sanction must not be excessive.
Trans-American Natural Gas Corp. v.
Powell, 811 S.W.2d 913, 917 (Tex.1991);
Roberts v. Golden Crest Waters, Inc., 1
S.W.3d 291, 292 (Tex.App.-Corpus
Christi 1999, no pet.). Scrutinizing the
imposed       sanction        under      an
abuse-of-discretion standard, I cannot
conclude that the trial court acted without
reference to any guiding rules and
principles in determining the amount of
sanction. See Downer, 701 S.W.2d at
241-42. I would find that the imposed
$50,000 sanction ($25,000 for each of the
two Doctors) is not clearly arbitrary and
excessive. Compare Skepnek v. Mynatt,
8 S.W.3d 377, 380 (Tex.App.-El Paso
1999, pet. denied) (upholding $25,000
sanction to be paid into registry of court
pursuant to chapter 10) with Metzger v.
Sebek, 892

								
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