author: JANE BLAND, Justice.

text:
    Robert ALPERT, Danro Corporation, and Alba Corporation, Appellants, v. CRAIN, CATON & JAMES, P.C., Darlene Payne Smith and Sharon B. Gardner, Appellees.
    Nos. 01-04-00101-CV, 01-04-00484-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Sept. 22, 2005.

      J. Douglas Sutter, Kelly, Sutter & Kendrick, P.C., Houston, TX, Scott Rothen-berg, Law Offices of Scott Rothenberg, Bellaire, TX, for Appellants.
    Michael Patrick Morris, Tekell, Book, Matthews & Limmer, L.L.P., Roger Townsend, Susanna Lynn Gooch Dokupil, Alexander, Dubose Jones & Townsend LLP, Houston, TX, for Appellees.

      Panel consists of Justices HANKS, HIGLEY and BLAND.
   OPINION

JANE BLAND, Justice.

A law firm moved to dismiss this case because Texas law does not recognize a tort action brought against a lawyer by a party opposed to that lawyer’s client in litigation. The party responds that he properly pleaded a recognized exception to the general rule. The trial court dismissed the case on special exceptions, and awarded the law firm approximately $13,000 in attorney’s fees as a sanction. We agree with the trial court that the facts as pleaded do not weather an attack by special exceptions, and conclude that the trial court did not abuse its discretion in awarding sanctions. We therefore affirm.

Pacts

Appellants, Robert Alpert, Danro Corporation, and Alba Corporation (collectively “Alpert”), sued appellees, Crain, Catón & James, P.C., Darlene Payne Smith, and Sharon B. Gardner (collectively “Crain Ca-tón”), in connection with Crain Caton’s legal representation of Alpert’s former attorney, Mark R. Riley. Alpert alleges that Crain Catón conspired with Riley to defraud Alpert, and both aided and abetted in the breach of, and tortiously interfered with, Riley’s fiduciary duty to Alpert.

Riley is Alpert’s former attorney, having assisted him from June 1994 through 1998 in the administration of his business and legal affairs. Among other duties, Riley acted as legal counsel to various businesses in which Alpert had an interest and to several trusts Alpert established for the benefit of his children. The relationship between Alpert and Riley soured in 1998, and Riley’s professional dealings with Alpert ended. Riley sued Alpert in probate court, and Alpert counterclaimed against Riley (“the trust litigation”). Riley hired the Crain Catón law firm to represent him in the trust litigation and, perhaps, during events immediately preceding it.

Alpert thereafter brought this district court action against Crain Catón. In this case, Alpert alleges that Crain Catón conspired with Riley to defraud Alpert, and both aided and abetted, and tortiously interfered with, Riley’s fiduciary duty to Alpert by the following: (1) concealing Riley’s malpractices and breaches of fiduciary duty; (2) filing frivolous lawsuits against Alpert in probate court; and (3) disparaging Alpert’s reputation in the business community. Alpert does not allege that Crain Catón represented him. Rather, he acknowledges that Crain Ca-tón represented Riley. Alpert did not name Riley as a defendant in this litigation against Crain Catón, but instead refers to Riley as a co-conspirator.

In January 2004, the trial court granted Crain Caton’s special exceptions and dismissed the case, holding that Alpert “failed to set forth a claim or plead a cause of action against [Crain Catón] recognized under Texas law.” In April 2004, the trial court granted Crain Caton’s motion for sanctions, ordering Alpert to pay sanctions of $12,831.56 for Crain Caton’s attorney’s fees and expenses.

The Dismissal Order

In response to Crain Caton’s special exceptions, Alpert amended his pleadings several times, and announced to the trial court that he stood on his fourth amended petition. Alpert’s petition — referring to Riley as “Riley” and to Crain Catón as “the Defendants” — alleges the following:

The acts and/or omissions of Riley, the fiduciary include, but are not limited to the following:
a. Appropriating proprietary, confidential information protected by the attorney-client privilege and the attorney work product privilege and utilizing that information to make scandalous representations to the Internal Revenue Service and perhaps to other governmental entities. This action amounted to self-dealing in that Riley was interested in collecting monies from the Internal Revenue Service for making complaints about his clients and also to pressure Alpert into paying money to him and the Defendants. The Defendants have stated that they only want money paid to them and to Riley in order for Riley to cease this inappropriate activity;
b. By turning Alpert over to the Internal Revenue Service and perhaps other governmental entities, Riley and the Defendants knew that Riley was breaching his fiduciary duty of “perfect fairness” on the part of an attorney to his clients;
c. With the assistance of the Defendants, Riley did not advise the Plaintiffs of the actions that he was taking with the proprietary and confidential information thereby aiding and abetting Riley to breach the duty of discretion, the duty of loyalty and the duty to make full disclosure of material facts to his clients;
d. By attempting to blackmail the Plaintiffs into paying money to them, the Defendants aided and abetted Riley in breaching his duty of loyalty to the Plaintiffs and his duty to place the interest of the Plaintiffs above his own. Riley and the Defendants used this as an advantage of their personal positions to gain a benefit for themselves at the expense of the Plaintiffs/beneficiaries;
e. The Defendants aided and abetted Riley in a conflict of interest wherein they allowed him to continue to sue the Plaintiffs and to make claims against the Plaintiffs utilizing confidential and proprietary information which Riley gained from the attorney-client privilege and from his attorney work product while representing the Plaintiff in order to extract attorney’s fees for the Defendants and so called “trustee fees” for Riley;
f. The Defendants aided and abetted Riley in breaching his fiduciary duty of making a full and accurate confession of all his fiduciary activities, transaction, profits and mistakes all of which is paramount to fraudulent concealment. The Defendants aided and abetted Riley in withholding and concealing the fact that he was turning Alpert over to government entities in order to obtain monies for himself and the Defendants;
g. The Defendants aided and abetted Riley in an unlawful civil conspiracy by filing lawsuits, complaints and other allegations utilizing information and documents learned and obtained from a confidential relationship in order to “shakedown” the Plaintiffs so that monies would be paid to the Defendants and to Riley;
h. The Defendants aided and abetted Riley in making statements such as there were never any loans by Alpert to the Trusts when Riley and the Defendants knew that such statements were false because Riley noted in his own handwriting in his notes as a fiduciary to the Plaintiffs from 1994 through 1998 that loans in fact were made. Again, the Defendants did this in order to pressure Alpert into paying them money and Riley money;
i. The Defendants aided and abetted Riley in suing and attacking the Plaintiffs with respect to the Daniel Alpert Trust, the Roman Alpert Trust, The 1996 Childrens’ Trust and the Alpert Family Charitable Remainder Unitrust and the Alpert Family Foundation Trust by stating that other people had engaged in wrong doing [sic] with respect to the securities trades of these Trusts when it was known and proved through Riley’s own handwriting that he was aware of all the trades, authorized the trades and in all situations, advised that the trades should be made. Again, the Defendants aided and abetted Riley in taking confidential information and information protected by the attorney-client privilege to pressure the Plaintiffs into paying the Defendants money;
j. The Defendants aided and abetted Riley in breaching his fiduciary duties to the Plaintiffs by diverting more than Ninety Five Thousand Dollars ($95,000.00) of income tax returns from the Internal Revenue Service which were due to the Trusts .and taking, a substantial amount of that money and paying it to Riley and the Defendants;
k. The Defendants knew that Riley had directed Larry St. Martin to book the monies forwarded by Alpert to the Trusts as loans and not gifts, yet they aided and abetted Riley to claim that the loans were gifts, thereby subjecting Alpert to Internal Revenue Service gift tax. All of this was done in an effort to force Alpert into paying money to Riley and the Defendants; and,
l. The Defendants knew that Riley had failed [to] timely and properly file tax returns for the Daniel Alpert Trust, The Roman Alpert Trust and the Alpert Family Charitable Trust. Nbnetheless, they aided and abetted Riley in claiming that he had not breached his fiduciary duties in this regard when they knew that he had.

Crain Catón filed special exceptions, contending that Alpert’s petition fails to state any cause of action against it. Specifically, Crain Catón excepted on the basis that Alpert’s petition “fails to state a claim under Texas law for which relief can be granted” because “[a]ll of the conduct made the basis of [Alpert’s] claims occurred during the discharge of [Crain Ca-ton’s] duties in representing their client, [Riley], and is absolutely protected from the liability claims asserted by Plaintiffs in this case.” The trial court granted Crain Caton’s special exceptions and dismissed the case, concluding that Alpert “failed to set forth a claim or plead a cause of action against [Crain Catón] recognized under Texas law.”

Discussion

Special Exceptions

A special exception is a proper method to determine whether a plaintiff has pleaded a cause of action. Butler Weldments Corp. v. Liberty Mut. Ins. Co., 3 S.W.3d 654, 658 (Tex.App.-Austin 1999, no pet.). When special exceptions are sustained, the pleader may either amend the petition or, as Alpert did here, refuse to amend and challenge the ruling on appeal. Detenbeck v. Koester, 886 S.W.2d 477, 479 (Tex.App.-Houston [1st Dist.] 1994, no writ).

We review a trial court’s dismissal of a case upon special exceptions for failure to state a cause of action as an issue of law, using a de novo standard of review. Sanchez v. Huntsville Indep. Sch. Dist., 844 S.W.2d 286, 288 (Tex.App.-Houston [1st Dist.] 1992, no writ). We accept all of the plaintiffs material factual allegations and all reasonable inferences from those allegations as true. Sorokolit v. Rhodes, 889 S.W.2d 239, 240 (Tex.1994).

Attorney Liability to Non-Client Third Parties

At common law, the rule of privity limits an attorney’s liability to those in privity with the attorney. McCamish, Martin, Brown & Loeffler v. Appling Interests, 991 S.W.2d 787, 792 (Tex.1999). An attorney in Texas therefore is not liable to non-client third parties for legal malpractice. Id; see also Barcelo v. Elliott, 923 S.W.2d 575, 577 (Tex.1996). The common law rule does not apply to all causes of action against an attorney. If an independent duty to the non-client exists, “based on the professional [attorney’s] manifest awareness of the non-client’s reliance on the misrepresentation and the professional’s intention that the non-client so rely,” then an attorney may be liable for negligent or fraudulent misrepresentation. See McCamish, 991 S.W.2d at 792 (allowing a cause of action for negligent misrepresentation by a non-client under the Restatement (Second) of Torts § 552).

Perhaps as an offshoot of its privity jurisprudence, Texas case law has discouraged lawsuits against an opposing counsel if the lawsuit is based on the fact that counsel represented an opposing party in a judicial proceeding. Bradt v. Sebek, 14 S.W.3d 756, 766 (Tex.App.-Houston [1st Dist.] 2001, pet. denied). An attorney has a duty to zealously represent his clients within the bounds of the law. Bradt v. West, 892 S.W.2d 56, 71-72 (Tex.App.-Houston [1st Dist.] 1994, writ denied). In fulfilling this duty, an attorney has the right to interpose defenses and pursue legal rights that he deems necessary and proper, without being subject to liability or damages. Id. If an attorney could be held hable to an opposing party for statements made or actions taken in the course of representing his client, he would be forced constantly to balance his own potential exposure against his client’s best interest. See id. Such a conflict hampers the resolution of disputes through the court system and the attainment of justice. Thus, to promote zealous representation, courts have held that an attorney is “qualifiedly immune” from civil liability, with respect to non-clients, for actions taken in connection with representing a client in litigation. See, e.g., Butler v. Lilly, 533 S.W.2d 130, 131-34 (Tex.App.-Houston [1st Dist.] 1976, writ dism’d).

This qualified immunity generally applies even if conduct is wrongful in the context of the underlying lawsuit. Renfroe v. Jones & Assocs., 947 S.W.2d 285, 288 (Tex.App.-Fort Worth 1997, writ denied) (“Under Texas law, attorneys cannot be held liable for wrongful litigation conduct.”). For example, a third party has no independent right of recovery against an attorney for filing motions in a lawsuit, even if frivolous or without merit, although such conduct is sanctionable or contemptible as enforced by the statutory or inherent powers of the court. West, 892 S.W.2d at 72. Courts have refused to acknowledge an independent cause of action in such instances “because making motions is conduct an attorney engages in as part of the discharge of his duties in representing a party in a lawsuit.” Id. (holding no cause of action existed for making motion for contempt because attorneys do not owe duty to be correct in legal arguments— “even if the ... motion for contempt had been meritless, their conduct in so moving, coming as it did in the discharge of their duties in representing a party in a lawsuit, would still not be actionable.”). Thus, an attorney’s conduct, even if frivolous or without merit, is not independently actionable if the conduct is part of the discharge of the lawyer’s duties in representing his or her client. Id. at 74; Chapman Children’s Trust v. Porter & Hedges, L.L.P., 32 S.W.3d 429, 441 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). The immunity focuses on the type of conduct, not on whether the conduct was meritorious in the context of the underlying lawsuit. Renfroe, 947 S.W.2d at 288.

As the Texas Supreme Court observed in McCamish, a lawyer’s protection from liability arising out of his representation of a client is not without limits. See McCamish, 991 S.W.2d at 793-94; see also Toles v. Toles, 113 S.W.3d 899, 912-13 (Tex.App.-Dallas 2003, no pet.). For example, a cause of action could exist against an attorney who knowingly commits a fraudulent act outside the scope of his legal representation of the client. See Likover v. Sunflower Terrace II, Ltd., 696 S.W.2d 468, 472 (Tex.App.-Houston [1st Dist.] 1985, no writ). If a lawyer participates in independently fraudulent activities, his action is “foreign to the duties of an attorney.” Id. (quoting Poole v. Houston & T.C. Ry. Co., 58 Tex. 134, 137 (1882)). A lawyer thus cannot shield his own willful and premeditated fraudulent actions from liability simply on the ground that he is an agent of his client. See id.

On appeal, Alpert contends that, despite the general rule that a lawyer cannot be sued by a non-client for actions taken within the scope of the attorney’s representation of his client, he asserts a valid cause of action against Crain Catón, because the petition (1) alleges that Crain Catón committed wrongful acts outside of litigation; and (2) alleges that such acts constitute fraud or a conspiracy to commit fraud or breach of fiduciary duty.

1. Aiding and Abetting Breach of Fidu- . ciary Duty

As set forth above, the majority of Alpert’s petition alleges that Riley breached his fiduciary duty and that Crain Catón assisted him in doing so. Alpert thus contends that he alleges a valid cause of action against Grain Catón for aiding and abetting Riley’s breach of fiduciary. Alpert relies on Toles and Querner v. Rindfuss, 966 S.W.2d 661 (Tex.App.-San Antonio 1998, pet. denied), for his contention that Texas has expanded a lawyer’s liability to non-clients to include aiding and abetting his client’s breach of fiduciary duty.

Alpert’s contention is without merit. In Quemer, the defendant was the attorney for a trust executrix. The executrix misappropriated funds, breached her duties, and committed other bad acts. The beneficiaries directly sued the lawyer-defendant. The trial court held that the beneficiaries could sue for breach of fiduciary duty only if they successfully proved that the lawyer-defendant had engaged in fraud and that he was in privity with them or otherwise directly owed them a fiduciary duty. Id. at 670. Here, Alpert does not allege that Crain Catón represented him, nor that Crain Catón made representations to him that it was acting as his attorney, nor that Crain Catón (as opposed to Riley) owed Alpert any legal or fiduciary duty — all facts distinguishable from those recited in Qaemer to support the existence of a potential cause of action.

In Toles, the defendant was a law firm for the husband in a divorce proceeding. The wife sued the defendant claiming that it had acted wrongfully during the divorce litigation. The trial court held that the wife’s claims against the defendant arose from its representation of the husband, and thus the wife had no viable claims against the defendant “unless those claims amount to assertions of fraud or conspiracy to defraud.” 113 S.W.3d at 911. Although the wife did not specifically state a claim for fraud, the husband did not file any special exceptions to her petition. As a result, the court liberally construed her pleadings, and held that the wife’s claim for aiding and abetting a breach of fiduciary duty “could arguably” involve fraudulent conduct.

Here, the acts that Alpert alleges in his petition to support his claim of aiding and abetting a breach of fiduciary duty occurred during Crain Caton’s representation of Riley. Unlike the defendant in Toles, Crain Catón specially excepted to Alpert’s pleadings. Despite opportunities to replead, Alpert does not allege that Crain Catón committed any acts or misrepresentations, independent of its representation of Riley, upon which he justifiably relied. Absent any allegation that Crain Catón committed an independent tortious act or misrepresentation, we decline Alpert’s invitation to expand Texas law to allow a non-client to bring a cause of action for “aiding and abetting” a breach of fiduciary duty, based upon the rendition of legal advice to an alleged tort-feasor client. The trial court thus did not err in dismissing this claim. See McCamish, 991 S.W.2d at 793-94 (holding that adoption of section 552 of the Restatement does not threaten lawyers with almost unlimited liability, because it applies to a narrow class of potential claimants and requires that any claimant justifiably rely on the alleged negligent misrepresentation).

2. Tortious Interference With Fiduciary Duty

Alpert concedes in this appeal that no Texas court has recognized a tor-tious interference with fiduciary duty cause of action. He nonetheless contends that we should adopt such an approach, as it is corollary to his other claims. The acts that Alpert alleges in his petition to support his claim of tortious interference with a fiduciary duty are nothing more than Crain Caton’s rendition of legal advice to Riley. Given the facts Alpert alleges, we decline to recognize a cause of action for tortious interference with fiduciary duty. The trial court therefore did not err in dismissing this claim.

3. Conspiracy to Defraud

To determine whether Alpert alleges a valid conspiracy to defraud action against Crain Catón, we examine the nature of the complained-of conduct. In his appeal, Alpert contends the following allegations support his conspiracy to defraud claim: Crain Catón assisted Riley in denying that he served as legal counsel for Alpert; Crain Catón filed numerous lawsuits against Alpert on Riley’s behalf in order to conceal improper actions and to deflect attention away from Riley’s own wrongful conduct; Riley, while represented by Crain Catón, alleged that Alpert committed bad acts in order to force Alpert to accede to demands for money; Crain Catón aided Riley in concealing the fact that he had reported Alpert to the IRS; Crain Catón aided Riley in misusing confidential information by filing lawsuits, complaints and other allegations; Crain Catón aided Riley in his falsely stating that some of the trusts had no loans; and Crain Catón aided Riley in his claims that certain loans of the trusts were taxable gifts.

We hold that none of these alleged acts constitutes conduct “foreign to the duties of an attorney” in the representation of a client. Instead, the complained-of actions involve the filing of lawsuits and pleadings, the providing of legal advice upon which the client acted, and awareness of settlement negotiations — in sum, acts taken and communications made to facilitate the rendition of legal services to Riley. Such acts fall within the context of Crain Catón discharging its duty to represent Riley and are not the basis for an actionable fraud claim against attorneys for whom Alpert alleges neither (1) any legal privity, nor (2) any independent duty to Alpert, together with justifiable reliance upon any representation or act made by Crain Catón. See White v. Bayless, 32 S.W.3d 271, 274-76 (Tex.App.-San Antonio 2000, pet. denied) (holding no cause of action exists in petition claiming that opposing attorney conspired to defraud him by filing numerous pleadings, attempting to evict him, filing false proof of claim in bankruptcy court, and using scurrilous language); Chapman Children’s Trust, 32 S.W.3d at 440-43 (holding that allegations that opposing attorney refused to provide documentation, denied knowledge of facts, filed motions, pushed settlement, and concealed facts did no more than demonstrate that attorney attempted to negotiate smaller settlement and did not raise issue of fraud); Renfroe, 947 S.W.2d at 287-88 (holding no cause of action against attorney for his participation in filing writ of garnishment with inaccurate facts); see also McCamish, 991 S.W.2d at 795 (noting that limitations exist upon duty of counsel to non-clients). We therefore hold that the trial court did not err in dismissing this claim.

The Sanctions Order

In February 2004, Crain Catón moved for sanctions against Alpert under Chapter 10 of the Civil Practice and Remedies Code and Rule 13 of the Texas Rules of Civil Procedure. See Tex. Civ. PRác. & Rem.Code Ann. §§ 10.001, 10.002 (Vernon 2002); Tex.R. Crv. P. 13. The trial court conducted a hearing and granted Crain Caton’s motion, ordering Alpert to pay sanctions of $12,831.56 for Crain Caton’s attorney’s fees and expenses. On April 8, 2004 — the day the trial court signed its sanctions order — Alpert requested that the trial court enter findings of fact and con-elusions of law. The trial court included three particular findings in its sanctions order, but did not enter any additional findings.

Alpert alleges that the trial court erred in granting sanctions because (1) the trial court did not have plenary power at the time that it issued its sanctions order; (2) the trial court failed to issue requested findings of facts and conclusions of law in support of the sanctions order; and (3) it was an abuse of discretion to award sanctions.

Plenary Power

Alpert contends that the trial court had no power to sign the April 8, 2004 sanctions order because more than thirty days had elapsed since it had signed the January 27, 2004 dismissal order. Whether a court has subject matter jurisdiction is a question of law, and we therefore review the issue de novo. Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004).

After signing a final judgment, a trial court retains jurisdiction over a case for a minimum of thirty days. Tex.R. Crv. P. 329b(d). During this time, the trial court has plenary power to change its judgment. Check v. Mitchell, 758 S.W.2d 755, 756 (Tex.1988). A party may extend this period by timely filing an appropriate post-judgment motion. The filing of a motion for new trial under Rule 329b(e) or a motion to modify, correct or reform the judgment under Rule 329b(g), within the initial thirty-day period, extends the trial court’s jurisdiction over its judgment up to an additional seventy-five days, depending on when or whether the court acts on the motion. Philbrook v. Berry, 683 S.W.2d 378, 379 (Tex.1985); Tex.R. Civ. P. 329b(c), 329b(e), & 329b(g).

Here, the trial court signed the dismissal order on January 27, 2004, and thus, retained jurisdiction over the case for thirty days. See Tex.R. Civ. P. 329b(d). Crain Catón moved for sanctions on February 25, 2004, within the trial court’s initial thirty-day plenary power. Therefore, the issue before this Court is whether Crain Caton’s motion for sanctions was a motion to modify the trial court’s January 27, 2004 order or a new motion. If the former, the trial court retained plenary power; if the latter, plenary power was lost. See Tex.R. Civ. P. 329b(g).

“[A] timely filed postjudgment motion that seeks a substantive change in an existing judgment qualifies as a motion to modify under Rule 329b(g), thus extending the trial court’s plenary jurisdiction and the appellate timetable.” Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 314 (Tex.2000). In Lane, the Texas Supreme Court held that “a motion made after judgment to incorporate a sanction as a part of the final judgment does propose a change to that judgment. Such a motion is, on its face, a motion to modify, correct or reform the existing judgment within the meaning of Rule 329b(g).” Id. at 312. See also In re T.G., 68 S.W.3d 171, 176-77 (Tex.App.-Houston [1st Dist.] 2002, pet. denied) (amended motions for sanctions extended the trial court’s plenary power over the judgment of dismissal). Here, Alpert contends that Crain Caton’s motion does not seek the rendition of a new final judgment because the trial court styled its order, “Order Granting Sanctions,” and made a handwritten notation deleting the words, “[Order Granting] Special Exceptions, Order of Dismissal.” Alpert thus contends that Crain Catón “requested and ultimately obtained a separate and distinct order assessing sanctions.”

In its motion for sanctions, and in support for the trial court’s continued plenary power, Crain Catón cites Texas Rule of Civil Procedure 329b(d). See Tex.R. Civ. P. 329b(d) (trial court has plenary power to vacate, modify, correct or reform the judgment within thirty days after the judgment is signed). In its April 8, 2004 sanctions order, the trial court notes that Crain Catón moved for sanctions “within the time limits of a motion for new trial” and sought “a substantive change and modification” of the trial court’s dismissal order. The trial court thus viewed the request as one which sought to modify its order of dismissal to include sanctions. We hold that Crain Caton’s timely filed postjudgment motion for sanctions sought a substantive change in an existing judgment and qualifies as a motion to modify under Rule 329b(g), thus extending the trial court’s plenary jurisdiction. See Lane, 10 S.W.3d at 314.

Findings of Fact and Conclusions of Law

Alpert next contends that the trial court erred in refusing to make findings of fact and conclusions of law, and that such error was harmful. Crain Catón responds that Alpert did not preserve this complaint because Alpert did not file a Rule 297 reminder after the trial court failed to issue any findings of fact or conclusions of law. We agree. See Averyt v. Grande, Inc., 717 S.W.2d 891, 895 (Tex.1986) (holding that because reminder not filed, as required by Texas Rule of Civil Procedure 297; appellant waived argument regarding failure to file findings of fact and conclusions of law); Employers Mut Cas. Co. v. Walker, 811 S.W.2d 270, 271 (Tex.App.Houston [14th Dist.] 1991, writ denied) (holding that party’s failure to file reminder waived argument). Moreover, the trial court included findings in its sanctions order, as required by Chapter 10 and Rule 13. See Tex. Civ. PRAC. Rem.Code Ann. § 10.005 (Vernon Supp.2002); Tex.R. Crv. P. 13.

Review of the Sanctions Order

Alpert contends that the trial court abused its discretion in awarding sanctions. He does not contend that the attorney’s fees were unreasonable; rather, he alleges that sanctions are not warranted. We review a trial court’s sanctions order under an abuse of discretion standard. Laub v. Pesikoff, 979 S.W.2d 686, 693 (Tex.App.-Houston [1st Dist.] 1998, pet. denied). Our test for abuse of discretion is whether the trial court acted without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). We therefore will overturn a trial court’s award of sanctions only if it is based on an erroneous view of the law or a clearly erroneous assessment of the evidence. Home Owners Funding Corp. of Am. v. Scheppler, 815 S.W.2d 884, 889 (Tex.App.-Corpus Christi 1991, no writ).

Crain Catón moved for sanctions against Alpert and his attorney under Chapter 10 of the Civil Practice and Remedies Code and Rule 13 of the Rules of Civil Procedure. Tex. Civ. Prac. & Rem.Code Ann. §§ 10.001, 10.002(c) (Vernon 2002); Tex.R. Civ. P. 13. After conducting an evidentia-ry hearing, the trial court found sanctions to be appropriate under both provisions. The trial court’s order finds that (1) Alpert’s original petition asserts frivolous claims; (2) the petition was filed against Crain Catón on the “eve of trial” in the underlying trust litigation between Alpert and Riley; and (3) Aipert refused to dismiss the petition despite repeated requests. The trial court held that these findings “support[ ] the conclusion that the suit was filed for improper purposes, including harassment, delay, needless costs and expense, and the potential for lessening Plaintiffs’ adversary’s zealous and vigorous representation by his attorneys.” Additionally, the trial court found that Alpert’s claims are “clearly barred by existing law, have no basis in law or fact, and are not warranted by a good faith argument for the extension, modification or reversal of existing law and in light of the record before the Court, [are] groundless and brought in bad faith or for the purpose of harassment.”

Rule IS Sanctions

Rule 13 of the Rules of Civil Procedure provides that the signature of an attorney constitutes a certificate that the pleading, motion, or other paper, to the best of his knowledge, “is not groundless and brought in bad faith or groundless and brought for the purpose of harassment.” Tex.R. Civ. P. 13. The rule thus protects against “groundless” pleadings and motions. For the purposes of the rule, groundless “means no basis in law or fact and not warranted by good faith argument for the extension, modification, or reversal of existing law....” Id.

No sanctions may be imposed under Rule 13 “except for good cause, the particulars of which must be stated in the sanctions order.” Id. This requirement to include particular findings (1) ensures that the trial court is held accountable and adheres to the standard of the rule; (2) requires the trial court to reflect carefully on its order before imposing sanctions; (3) informs the offending party of the particular conduct warranting sanction, for the purpose of deterring similar conduct in the future; and (4) enables the appellate court to review the order in light of the particular findings made by the trial court. Rudisell v. Paquette, 89 S.W.3d 233, 237 (Tex.App.-Corpus Christi 2002, no pet.).

To refute the trial court’s finding of frivolousness, Aipert relies on several Texas court of appeals’ decisions that have upheld a party’s lawsuit against an attorney who represents his adversary in some—albeit limited—circumstances. Like the trial court, we either do not agree with Alpert’s cited authorities, or we conclude that they are factually distinguishable. This alone, however, is not a basis for imposing sanctions. See Laub, 979 S.W.2d at 693 (rule 13 sanctions “cannot become a weapon used to punish those with whose intellect or philosophic viewpoint the trial court finds fault. We cannot allow rule 13 to have a chilling effect on those who seek change in legal precedent.”). Here, the record and briefing show (1) a relative paucity of law exists on the causes of action alleged as applied to these or similar facts; (2) Crain Catón offered no evidence at the sanctions hearing that the petition, as it is drafted, is factually untrue; and (3) such appellate law that exists, in some instances, arguably supports Alpert’s claim. We thus hold that Alpert’s unmeritorious claims were not groundless and that the trial court, therefore, should not have imposed sanctions under Rule 13.

Chapter 10 Sanctions

Chapter 10 of the Civil Practice and Remedies Code provides that the signing of a pleading or motion constitutes a certificate by the signatory that, to the best of the signatory’s knowledge, “the pleading or motion is not being presented for any improper purpose, including to harass or to cause unnecessary delay or needless increase in the cost of litigation,” and “each claim, defense, or other legal contention in the pleading or motion is warranted by existing law or by a nonfriv-olous argument for the extension, modification, or reversal of existing law or the establishment of new law.” Tex. Civ. Phac. & Rem.Code Ann. § 10.001(1) & (2). Thus, there are two requirements under Chapter 10: (1) that the claims made in pleadings not be frivolous; and (2) that the pleadings not be made for an improper purpose. A finding of either requirement supports the imposition of sanctions. As stated above, Alpert’s claims were not frivolous. The trial court’s sanction order must thus be supported by evidence that Alpert filed the petition for an improper purpose.

In imposing sanctions under Chapter 10, a trial court is required to specifically detail the sanctionable conduct in its order. Tex. Civ. PRAC. Rem.Code Ann. § 10.005 (Vernon Supp.2004-2005) (“[a] court shall describe in an order imposing a sanction under this chapter the conduct the court has determined violated Section 10.001 and explain the basis for the sanction imposed”); Rudisell v. Paquette, 89 S.W.3d 233, 238 (“[t]he use of ‘shall’ in the statute indicates that the requirement for particularity in the sanction order is mandatory”). We thus look to the trial court’s sanction order, which finds that Alpert had an improper motive in filing this litigation because it was filed on the eve of trial in the trust litigation.

The trial court could take judicial notice of the prior pleadings in this litigation, establishing that Alpert filed his original petition in this lawsuit on August 26, 2003. See Tex.R. Evid. 201; Smith v. Smith, 757 S.W.2d 422, 426 (Tex.App.-Dallas 1988, writ denied) (trial court can take judicial notice of contents of its file with or without request of party). During the sanctions hearing, Crain Catón established that the underlying trust litigation was scheduled to go to trial in the early fall. Alpert thus filed this lawsuit scant weeks before the scheduled trial in the underlying trust litigation.

Alpert’s attorney testified in response that his lawsuit was filed in good faith because, before he filed the petition, he researched the possibility of the lawsuit, and his research included consultation with at least one other attorney. During the sanctions hearing, however, Alpert’s attorney conceded that he did not name Riley as a defendant — rather, he named only Riley’s attorneys, who presently represented Riley in the ongoing trust litigation between the parties. Moreover, Crain Ca-tón introduced evidence that Alpert also had sued the experts designated by Crain Catón in the underlying trust litigation, as well as the probate court-appointed receiver. The trial court reasonably could have concluded from these facts that this lawsuit was filed on the “eve of trial” for an improper purpose “including harassment, delay, needless costs and expense, and the potential for lessening [Crain Caton’s] zealous and vigorous representation” of Riley. As the fact finder, the trial judge was entitled to evaluate the credibility of the testimony and to determine what weight to give it. City of Houston v. Jackson, 135 S.W.3d 891, 905 (Tex.App.-Houston [1st Dist.] 2004, no pet.) (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986)). In this case, the evidence supports the trial court’s finding.

The trial court conducted a sanctions hearing, during which both parties introduced evidence. The trial court included particular findings in its award of sanctions that are supported by the record. The trial court thus acted with reference to guiding rules and principles. We therefore hold that it did not abuse its discretion in imposing sanctions.

Conclusion

We conclude the trial court (1) did not err in dismissing Alpert’s petition upon special exceptions, and (2) did not abuse its discretion in imposing sanctions under Chapter 10 of the Civil Practice and Remedies Code. We therefore affirm the judgment of the trial court.

      . Alpert appeals the dismissal order in cause number 01-04-00101-CV and the sanctions order in cause number 01-04-00484-CV.

      . In Re: The Roman Merker Trust, Daniel James Alpert Trust, and the Robert Alpert 1996 Children's Trust, Mark Riley, Trustee v. Robert Alpert, et. at, No. 305,232-401, Probate Court No. 2, Harris County, Texas. The record does not reflect the date Riley filed the trust litigation lawsuit, the date Alpert counterclaimed, nor the exact date Riley engaged the Crain Catón law firm to represent him.

      . On appeal, Crain Catón also contends that Alpert's petition fails because of vagueness. Although Crain Catón filed such special exceptions, they relate to Alpert’s original and first amended petition and not to Alpert’s fourth amended petition, which is the subject of this appeal. As Crain Catón did not specially except on this basis before the trial court, it may not rely upon it to support the trial court's order. Muecke v. Hallstead, 25 S.W.3d 221, 225 (Tex.App.-San Antonio 2000, no pet.).

      . An actionable civil conspiracy is a combination by two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means. Triv. J.T.T., 162 S.W.3d 552, 556 (Tex.2005). The elements of fraud are: (1) a material misrepresentation was made; (2) it was false; (3) when the representation was made, the speaker knew it was false or the statement was recklessly asserted without any knowledge of its truth; (4) the speaker made the false representation with the intent that it be acted on by the other party; (5) the other party acted in reliance on the misrepresentation; and (6) the party suffered injury as a result. See DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 688 (Tex.1990).

      . “If the court fails to file timely findings of fact and conclusions of law, the party making the request shall, within thirty days after filing the original request, file with the clerk and serve on all other parties ... “Notice of Past Due Findings of Fact and Conclusions of Law" which shall be immediately called to the attention of the court by the clerk.” Tex.R. Civ. P. 297.


source: Caselaw Access Project

license: Public Domain

text:
    Michael BARKHAUSEN, Appellant, v. CRAYCOM, INC. d/b/a Crayons to Computers, Anthony Matera, and Sharon Matera, Appellees.
    No. 01-04-00486-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Sept. 22, 2005.

      Craig Welscher, The Welscher Law Firm, Houston, TX, for Appellant.
    Scott Rothenberg, Law Offices of Scott Rothenberg, Bellaire, TX, for Appellees.
    Panel consists of Justices NUCHIA, KEYES, and BLAND.
   OPINION

JANE BLAND, Justice.

In a dispute over an investment, appellant Michael Barkhausen sued Craycom Incorporated, d/b/a Crayons to Computers, and its president and vice-president, Sharon and Anthony Matera (collectively “Craycom”). After holding a bench trial, granting a new trial, and then holding a second trial, the trial court entered judgment in favor of Craycom and awarded it $30,000 in attorney’s fees as a sanction. In this appeal, we decide whether the trial court abused its discretion in (1) denying Barkhausen a jury for the second trial, and (2) awarding fees as a sanction. We conclude it did not as to the former but did as to the latter. We therefore affirm the trial court’s judgment on the merits and reverse the sanctions award.

The Facts

Craycom employed Pamela Barkhausen. In 2000, she entered into an oral agreement to purchase 6.75 shares of Craycom common stock for $27,000. The trial court found that the oral agreement provided that Craycom would issue the stock to Pamela upon her request. Craycom’s business records, however, classified Pamela’s $27,000 investment as a loan, as opposed to stockholder’s equity. Initially, Craycom did not issue any shares of stock, nor did it pay any dividends or profit distributions in connection with the $27,000 contribution. Pamela never requested that it do so.

Pamela and Michael Barkhausen divorced in July 2002. Pursuant to the divorce decree, Michael gained all contractual right, title, and interest to the Craycom investment. Two days after the divorce became final, he sent Craycom a letter demanding payment of $30,337.20, within sixty days, in connection with the $27,000 contribution made to Craycom. In September 2002, Craycom received another letter from Pamela, informing it of the divorce decree and requesting that Cray-com issue 6.75 shares of stock to Michael Barkhausen. On October 11, 2002, Cray-com tendered the stock to Michael Bark-hausen — the same day he filed this lawsuit. The lawsuit alleges that Craycom failed to timely issue him the shares of stock, and asserts claims for: (1) conversion; (2) common law fraud; (3) statutory fraud; (4) rescission and breach of contract; and (5) violations of the Texas Deceptive Trade Practices Act (“DTPA”).

The Procedural History

Six months after Barkhausen filed suit, Craycom moved for summary judgment. The trial court took the summary judgment motion under advisement, but never ruled. Rather, it held a bench trial in July 2003. Both parties presented evidence on the merits of the case, and at the conclusion of the trial, Craycom’s attorney testified that Craycom had incurred legal fees totaling $18,500. In August 2003, the trial court signed a judgment in favor of Cray-com with respect to Barkhausen’s claims for affirmative relief. The court, however, found in favor of Barkhausen with respect to Craycom’s DTPA counterclaim for filing a frivolous lawsuit. It nevertheless awarded Craycom $10,000 in attorney’s fees in the judgment.

In September 2003, Barkhausen moved for a new trial or to modify the portion of the judgment awarding attorney’s fees, in part because nothing in the judgment supported an award of attorney’s fees to Craycom. The trial court denied the motion for new trial, but granted the motion to modify the judgment. In October 2003, the trial court amended the judgment by adding findings of fact and conclusions of law. These findings of fact and conclusions of law included findings that Bark-hausen had brought his lawsuit in bad faith and to “harass and intimidate the Defendants.” The amended judgment included an award for Craycom’s attorney’s fees pursuant to section 17.50(c) of the DTPA, and purportedly pursuant to section 38.001 of the Texas Civil Practice and Remedies Code. In November 2003, Barkhausen moved for a new trial a second time, or, in the alternative, to amend the judgment, again requesting that the trial court remove the award of attorney’s fees from the judgment.

In December 2003, the trial court held an oral hearing attended by both parties. No reporter’s record exists of this hearing, but the parties clarified in a later hearing that the trial court offered Craycom an election: it could either agree to a second, two-hour bench trial in January or accept the amended judgment from its first trial and defend it on appeal. Craycom chose a new trial.

Barkhausen’s counsel then conferred with Craycom’s counsel, requesting that the new trial be held after thirty days, so that he could demand a jury. In response, Craycom’s counsel sent a letter to the trial court, requesting that it set the case for trial within thirty days, so that Barkhau-sen would not receive a jury trial; otherwise, his clients would “stand on the judgment as entered by the Court and seek to defend it on appeal.” The next day, December 18, Barkhausen filed a written request for a jury trial and paid the jury fee.

In January 2004, Craycom filed a supplemental petition seeking sanctions not to exceed $70,000 pursuant to Texas Rule of Civil Procedure 13, and Chapters 9 and 10 of the Texas Civil Practice and Remedies Code, as well as section 17.50(c) of the DTPA. On January 12, the trial court held a hearing and denied Barkhausen’s motion for a jury trial.

The trial court proceeded to hold a second bench trial on the merits. Michael Barkhausen testified that he learned that Craycom was seeking investors when he received a flier his son brought home from day care, informing him of an investment opportunity. Craycom also provided proposed budgets and financial projections for the company. The Barkhausens borrowed the money to make the Craycom investment and tendered it to the Materas. Michael Barkhausen signed the loan documents, but the stock purchase agreement was never signed, and Pamela Barkhausen alone negotiated the oral transaction with the Materas. Anthony Matera admitted that the stock purchase agreement in this case was “strictly oral.”

Michael Barkhausen further testified that he understood that the Barkhausens would receive stock dividends or payments from Craycom in order to “offset the amount of the loans that we took out for investment and that was suppose [sic] to start in January of 2001.” Craycom concedes that Barkhausen did not receive any stock certificates until October 2002, the day suit was filed, and that Barkhausen did not receive a financial return on his investment. Further, Craycom did not proffer any financial information to the Barkhausens during 2001 or 2002, or in response to Michael Barkhausen’s DTPA demand.

Barkhausen concedes that he was not the sole owner of the stock in the company until his divorce, but he testified that his former wife negotiated with Craycom on his behalf. He further testified that he suffered adverse taxation consequences during his marriage because Craycom characterized the stock purchase as a loan on its books, not an equity investment, and failed to issue any documentation for the loan to the Barkhausens. In support of his claim, he introduced Craycom’s tax returns that reflect the Materas’ ownership of Craycom, but not the Barkhausens’ equity interest. Moreover, Janet Latshaw, a Craycom employee, testified that Craycom booked the purchase as a loan, pursuant to the Materas’ instructions.

Barkhausen contacted Anthony Matera in July 2002 and indicated that he wanted either a return of his investment or issuance of the stock certificates. Anthony told him that he was not going to return Barkhausen’s investment, nor would he issue the stock without going to court. In compliance with the DTPA, Barkhausen sent Craycom a demand letter, in August, asking it to respond within sixty days. See Tex. Bus. & Com.Code Ann. § 17.505(a)(Ver-non 2002). After no response, Barkhausen filed this suit, alleging that Craycom wrongfully accepted and deposited the $27,000 without treating his former wife and him as shareholders or issuing them any stock.

Sharon Matera testified that Pamela Barkhausen was never a “stockholder,” and that she and Anthony had discussed with the accountant “what was to be done and she made it sound like it was a normal thing to hold money until the stocks were issued.” Sharon Matera further testified that she dealt only with Pamela Barkhau-sen, who was a Craycom employee. Anthony testified that Pamela sent Craycom a letter that instructed it to issue her stock in Michael Barkhausen’s name as a result of the divorce decree. Pamela testified that neither she nor Craycom wished to deal with Barkhausen until the divorce was finalized. She further testified that she and Craycom discussed issuing a promissory note, but decided not to do so or to issue any stock until after the divorce was finalized. Pamela stated that she was satisfied with Craycom’s disclosures and representations and that she never provided Craycom instructions regarding the stock issuance.

Craycom also presented testimony, including that of Mark Knop, its former trial counsel, who stated that he had completed 124 hours of legal services at the rate of $175 per hour. Craycom’s new counsel, Scott Rothenberg, attempted to call himself as a witness. Barkhausen objected on the ground that Craycom had not designated Rothenberg as an expert witness. The following exchange occurred:

[Craycom’s Counsel]: Judge, we’re not asking for legal fees as damages. We are asking for legal fees in the nature and sense of Rule 13 or Chapter 9 and 10[sic] or Section 17.50 sanctions. Those are family [sic] matters for the Court that are not considered by the fact finder per se because the fact finder is the Court in this case, I was merely offering it during the course of this trial to expedite matters. If the Court would like to make a ruling on whether or not this matter was groundless and brought in bad faith and brought for the purpose of harassment and then convene a hearing for the purposes of a fair sanction under the circumstances, we certainly have no problem with that.
[The Court]: The objection at this time is sustained.

Thus, the court heard no evidence on sanctions “during the course of this trial to expedite matters.” After the trial concluded, the trial court took the case under advisement.

On January 23, the trial court signed a second amended judgment, together with findings of fact and conclusions of law, in favor of Craycom. Without holding any further hearing, the court awarded Cray-com $30,000 in attorney’s fees as a sanction, plus additional fees for any appeal. Barkhausen moved for the trial court to reconsider the sanctions award, and, in the alternative, requested a new trial, both of which the trial court denied. This appeal followed.

Request for a Jury Trial

Barkhausen contends the trial court erred in denying his request for a jury trial. Craycom responds that Bark-hausen failed to timely file and pay the fee for his request for a jury trial; thus, the trial court did not abuse its discretion in denying Barkhausen’s jury demand.

We review a trial court’s refusal to grant a jury trial under an abuse of discretion standard. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex.1996) (citing State v. Wood Oil Distrib. Inc., 751 S.W.2d 863, 865 (Tex.1988)). We examine the entire record and find that an abuse of discretion exists if the trial court’s decision is arbitrary, unreasonable, and without reference to guiding principles. Id. (citing Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex.1987)); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985).

We recognize that “[t]he right to a jury trial is one of our most precious rights, holding ‘a sacred place in English and American history.’ ” Gen. Motors Corp. v. Gayle, 951 S.W.2d 469, 476 (Tex.1997) (quoting White v. White, 108 Tex. 570, 196 S.W. 508, 512 (1917)). A request for a jury trial nonetheless must be filed “a reasonable time before the date set for trial :of the cause of the non-jury docket, but not less than thirty days in advance.” Tex.R. Crv. P. 216(a). Even if a party fails to timely pay the jury fee, however, Texas courts have held that a trial court “should accord the right to jury trial if it can be done without interfering with the court’s docket, delaying the trial, or injuring the opposing party.” Gayle, 951 S.W.2d at 476 (citing Dawson v. Jarvis, 627 S.W.2d 444, 446-47 (Tex.App.-Houston [1st Dist.] 1981, writ ref'd n.r.e.); Childs v. Reunion Bank, 587 S.W.2d 466, 471 (Tex.Civ.App.-Dallas 1979, writ ref'd n.r.e.); Aronoff v. Tex. Turnpike Auth., 299 S.W.2d 342, 344 (Tex.Civ.App.-Dallas 1957, no writ); Erback v. Donald, 170 S.W.2d 289, 294 (Tex.Civ.App.-Fort Worth 1943, writ refd w.o.m.)).

Here, we cannot conclude that the trial court abused its discretion in denying Barkhausen’s jury demand. First, Bark-hausen did not request a jury in his first trial. He chose to request a jury for his new trial, presumably because the trial court had ruled against him in the first trial. Yét, unlike the party denied a jury in Gayle, Barkhausen never moved, either formally or informally, for a continuance of the second trial that could have allowed the jury demand to become timely. Cf. Gayle, 951 S.W.2d at 477 (holding that trial court abused its discretion in refusing to grant continuance to allow appellant’s jury request and fee to become timely when trial judge timed trial proceedings to avoid Rule 216, appellant established that jury trial demand would not cause adverse party injury or delay, and trial court conceded case was not ready for trial due to outstanding discovery issues). Second, the trial court articulated its reasons for denying Barkhausen’s jury demand. The trial judge stated he refused the request due to his concerns regarding the extra expense that both parties would incur and the length of the trial. Concomitantly, Bark-hausen made no showing or argument that a jury trial based on an untimely demand would not prejudice the opposing party, and he did not suggest that the trial judge’s concerns could be alleviated. In Gayle, the discovery in the case had not concluded. See id. Here, in contrast, pretrial work on the case was complete and the case was trial-ready.

In his briefing to this court, Barkhausen relies on Bell Helicopter Textron, Inc. v. Abbott, 863 S.W.2d 139 (Tex.App.-Texar-kana 1993, writ denied). In Bell Helicopter, the Texarkana Court of Appeals held that the trial court’s failure to provide proper notice of the first trial setting under Rule 245 made the defendant’s compliance with Rule 216 impossible. Id. at 141. As a result, the court held that the trial court’s refusal to grant Bell a jury trial constituted error. Id. In contrast, Bark-hausen does not complain that the trial court’s notice of the second setting was improper, nor was it under Rule. 245, which applies to initial trial settings. Under these facts, we hold that the trial court did not abuse its discretion in denying Barkhausen’s request for a jury trial.

The Sanction Award

Barkhausen contends the trial court erred in awarding Craycom $30,000 as a sanction, plus fees for the subsequent appeal. Specifically, he complains: (1) the trial court failed to hold a sanctions hearing; (2) the sanctions order fails to identify the particular conduct justifying sanctions; (3) Craycom failed to introduce any evidence that Barkhauseris acts “amounted to a conscious doing of a wrong for dishonest, discriminatory, or malicious purpose,” (4) sufficient evidence exists to counter the sanctions award; and (5) the sanctions award is excessive, given the evidence in the record.

The trial court’s judgment awards sanctions against Barkhausen under Chapters 9 and 10 of the Civil Practice and Remedies Code, Texas Rule of Civil Procedure 13, section 17.50(c) of the DTPA, and the court’s inherent power. See Tex. Civ. PRAC. & Rem.Code Ann. §§ 9.011-.012, 10.001, 10.002(c) (Vernon 2002); Tex.R. Civ. P. 13; Tex. Bus. & Com.Code Ann. § 17.50(c) (Vernon 2002).

Civil Practice and Remedies Code Chapter 10

We review a trial court’s imposition of Chapter 10 sanctions for an abuse of discretion. See Finlay v. Olive, 77 S.W.3d 520, 524 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (citing Downer, 701 S.W.2d at 241-42).

Chapter 10 provides that the signing of a pleading or motion constitutes a certificate by the signatory that, to the best of the signatory’s knowledge, “the pleading or motion is not being presented for any improper purpose, including to harass or to cause unnecessary delay or needless increase in the cost of litigation;” Tex. Civ. PRAC. & Rem.Code Ann. § 10.001(1), and “each claim, defense, or other legal contention in the pleading or motion is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.” Id. § 10.001(2). The court may award reasonable expenses and attorney’s fees incurred in presenting or opposing a motion brought under Chapter 10, and if no due diligence is shown, may award to the prevailing party all costs for inconvenience, harassment, and out-of-pocket expenses caused by the litigation. Id. § 10.002(c). Chapter 10 requires the court to provide a party subject to sanctions notice and a reasonable opportunity to respond to the allegations. Id. § 10.003. In imposing sanctions under Chapter 10, a trial court is required to specifically detail the sanctionable conduct in its order. Id. § 10.005 (“A court shall describe in an order imposing a sanction under this chapter the conduct the court has determined violated Section 10.001 and explain the basis for the sanction imposed.”); Rudisell, 89 S.W.3d at 238 (“The use of ‘shall’ in the statute indicates that the requirement for particularity in the sanction order is mandatory.”). Here, the trial court incorporated the sanctions award into the final judgment. The final order does not set forth Barkhauseris particular conduct that justifies sanctions. See Tex. Civ. Prac. & Rem.Code Ann. § 10.005.

In the absence of particularity in the sanctions order, some courts rely on the trial court’s findings of fact and conclusions of law that describe and explain the sanctionable conduct. See, e.g., University of Texas at Arlington v. Bishop, 997 S.W.2d 350, 356 (concluding findings and conclusions supplied particulars lacking in sanctions order based on Chapter 10, and thus trial court’s failure to identify sanctioned conduct with specificity in order did not affect sanctioned party’s substantial rights or hinder its presentation of appeal); Gorman v. Gorman, 966 S.W.2d 858, 867-68 (Tex.App.-Houston [1st Dist.] 1998, pet. denied) (op. on reh’g) (findings of fact supplied particularities in sanctions order based on Rule 13). Here, the findings of fact and conclusions of law provide that (1) Barkhausen’s lawsuit was not warranted by a good faith argument for the extension, modification, or reversal of existing law; (2) Barkhausen brought this lawsuit for the purpose of harassing and intimidating Craycom so that it would agree to rescind the agreement and deliver to him the $27,000 consideration given to Cray-com by Barkhausen’s former wife; and (3) Barkhausen was not entitled to recover under any claim or cause of action asserted, and based upon the facts known to him or which should have been known to him at the time he filed his lawsuit, he knew , or should have known that he had no good faith basis to assert that he had any right to recover under any claim or cause of action asserted.

The trial court did not hold a separate sanctions hearing, and Craycom — though it defended the claims against it — did not produce affirmative evidence of sanctiona-ble conduct at either of the bench trials. With the exception of the second finding, these “findings of fact” are recitations of the legal standard for finding sanctionable conduct, but they do not particularize the offensive conduct. We thus examine the evidence in the record to support the mixed finding and conclusion that Bark-hausen brought this suit to harass or intimidate Craycom, and by extension, the trial court’s other two conclusions.

With respect to the second finding, the trial court did not articulate specific facts demonstrating that the lawsuit was part of a pattern of harassment or intimidation, and Craycom presented no argument to the trial court setting forth an evidentiary basis for it from the evidence presented at the trial on the merits. Nor did the trial court hear evidence about Barkhausen’s lack of a good faith basis for filing the lawsuit, at the time it was filed, based upon what he should have known, to support the trial court’s general findings. While the trial court found that Craycom issued shares to Barkhausen on the date suit was filed, Craycom failed to show that this, in and of itself, rendered the lawsuit frivolous. Finally, with respect to the first finding, Craycom has set forth reasons on appeal as to why the suit is a frivolous one, but it never presented those to the trial court as a basis for awarding sanctions. In fact, at the close of the evidence, Cray-com’s counsel contemplated that the trial court would convene a later hearing on the sanctions matter. Craycom’s attorney testified as to the fees he incurred, but the trial court did not hear testimony regarding the underlying facts that Craycom relied upon to justify sanctions under Chapter 10.

Absent an affirmative showing in the trial record, we conclude that the trial court abused its discretion in failing to particularize the conduct it found warranted sanctions. Finlay, 77 S.W.3d at 525.

Texas Rule of Civil Procedure 13

We review a trial court’s Rule 13 sanction award under an abuse of discretion. Downer, 701 S.W.2d 238, 241-42; Gaspard v. Beadle, 36 S.W.3d 229, 239 (Tex.App.-Houston [1st Dist.] 2001, pet. denied). We examine the entire record and -will overturn a trial court’s discretionary ruling if it is based on an erroneous view of the law or a clearly erroneous assessment of the evidence. See Mercedes-Benz Credit Corp., 925 S.W.2d at 666; Downer, 701 S.W.2d at 241-42;. Courts must presume that pleadings are filed in good faith. GTE Communications Sys. Corp. v. Tanner, 856 S.W.2d 725, 731 (Tex.1993) (orig.proceeding). The party seeking the sanctions bears the burden of overcoming the presumption of good faith in the filing of pleadings. Id.

Rule of Civil Procedure 13 provides for sanctions if a party files a groundless pleading brought in bad faith or for harassment. Tex.R. Civ. P. 13. If a pleading is filed in violation of Rule 13, “the court, upon motion or upon its own initiative, after notice and hearing, shall impose an appropriate sanction available under Rule 215.2(b), upon the person who signed it, a represented party, or both.” Id. For the purposes of a Rule 13 violation, groundless “means no basis in law or fact and not warranted by good faith argument for the extension, modification, or reversal of existing law.” Id. No sanctions may be imposed under Rule 13 “except for good cause, the particulars of which must be stated in the sanctions order.” Id.

In evaluating an allegation of a Rule 13 violation, “[e]ourts shall presume that pleadings, motions, and other papers are filed in good faith.” Tex.R. Civ. P. 13. “Rule 13 requires the trial court to hold an evidentiary hearing to make the necessary factual determinations about the motives and credibility of the person signing the alleged groundless petition.” McCain v. NME Hosps., Inc., 856 S.W.2d 751, 757 (Tex.App.-Dallas 1993, no writ). “A trial court’s failure to specify the good cause for sanctions in a sanction order may be an abuse of discretion.” Gaspard, 36 S.W.3d at 239.

Here, the trial court included its sanctions order in the final judgment, but did not list the good cause particulars. A failure to make particular findings may be harmless error, if the trial court’s findings of fact and conclusions of law “supply the particulars of the good cause required by Rule 13.” See Gaspard, 36 S.W.3d at 239 (citing Bradt v. Sebek, 14 S.W.3d 756, 769-70 (Tex.App.-Houston [1st Dist.] 2000, pet. denied)); see also Gorman, 966 S.W.2d at 867-68 (findings of fact supplied particularities in sanctions order based on Rule 13).

As discussed above, however, the trial court’s findings of fact and conclusions of law in this case do not provide the particular conduct that warranted Rule 13 sanctions. Although the trial court found that Barkhausen brought this lawsuit in bad faith and for harassment, no evidence in the record supports the trial court’s findings. Although Craycom put forth evidence that Barkhausen’s claims lacked merit, it made no affirmative showing that these non-meritorious claims were also frivolous. The trial court also had no evidence on the record before it to determine that Barkhausen filed his petition in bad faith or to harass Craycom. Rather, the record shows a legitimate disagreement about an investment, the accounting for it, and the disputed returns on it. The trial court’s general findings in this case are insufficient to satisfy Rule 13’s particularity requirements. Tarrant County v. Chancey, 942 S.W.2d 151, 155 (Tex.App.Fort Worth 1997, no pet.). As required by Rule 13, it was Craycom’s burden to prove conduct warranting sanctions. We therefore conclude that the trial court abused its discretion in awarding attorney’s fees under Rule 13.

DTPA Section 17.50(c)

Section 17.50(c) of the DTPA provides that “[o]n a finding by the court that an action brought under this section was groundless in fact or brought in bad faith, or brought for the purposes of harassment, the court shall award to the defendant reasonable and necessary attorneys’ fees and court costs.” Tex. Bus. & Com.Code Ann. § 17.50(c). The Texas Supreme Court has provided that “groundlessness” under the DTPA has the same meaning as “groundlessness” under Texas Rule of Civil Procedure 13 — a claim having no basis in law or fact, and not warranted by any good faith argument for extension, modification, or reversal of existing law. Donwerth v. Preston II Chrysler-Dodge, Inc., 775 S.W.2d 634, 637 (Tex.1989); Ostrow v. United Bus. Machs., Inc., 982 S.W.2d 101, 106 (Tex.App.-Houston [1st Dist.] 1998, no pet.); see also Schlager v. Clements, 939 S.W.2d 183, 190 (Tex.App.-Houston [14th Dist.] 1996, writ denied).

In determining groundlessness under the DTPA, we review all of the tendered evidence to determine if an arguable basis in fact and law for the consumer’s claim exists. Splettstosser v. Myer, 779 S.W.2d 806, 808 (Tex.1989); see also Schlager, 939 S.W.2d at 190. A claimant brings a suit in “bad faith” if he is “motivated by malicious or discriminatory purpose.” Schlager, 939 S.W.2d at 190. The trial court determines whether a suit is groundless or brought in bad faith as a matter of law. Donwerth, 775 S.W.2d at 637.

We review the trial court’s award of attorney’s fees under section 17.50(c) as a question of law, under an abuse of discretion standard. Id. at 637 n. 3; see also Schlager, 939 S.W.2d at 190; Ostrow, 982 S.W.2d at 106. Under such a standard, we may not substitute our judgment for that of the trial court. Schlager, 939 S.W.2d at 191. A trial court abuses its discretion if it acts arbitrarily and unreasonably, without reference to guiding rules or principles. Downer, 701 S.W.2d at 241-42; see also Ostrow, 982 S.W.2d at 106.

Barkhausen first asserts that we should reverse the section 17.50(c) sanctions award because he did not receive notice of Craycom’s complaints, nor an opportunity to be heard regarding the alleged sanctionable conduct. The due process clause of the United States Constitution limits a court’s sanctioning power. In re Bennett, 960 S.W.2d 35, 40 (Tex. 1997) (orig.proceeding); see also Davila v. World Car Five Star, 75 S.W.3d 537, 542-43 (Tex.App.-San Antonio 2002, no pet.). Accordingly, sanctions proceedings must afford a party notice and an opportunity to be heard. Davila, 75 S.W.3d at 543. Here, Craycom’s amended pleadings expressly asserted a counterclaim seeking attorne/s fees for sanctions before the second trial. The amended pleadings, however, did not particularize the grounds supporting an award of attorney’s fees, but merely quoted the statutory language. Barkhausen received notice of Craycom’s counterclaim for attorney’s fees under section 17.50(c) of the DTPA, but the pleadings do not tell of the basis on which the trial court may have relied to impose sanctions.

Barkhausen further contends that the trial court’s order fails to state the particular conduct that justifies sanctions. Unlike Chapter 10 and Rule 13, section 17.50(c) does not require that the sanctions order particularly describe the conduct that justifies sanctions, but the trial court’s failure to include specific findings creates difficulty in determining the basis for its sanctions award. For example, on appeal, Craycom contends that Barkhausen was not a consumer with respect to the disputed investment, and this is a basis to find the DTPA suit frivolous. Yet, the trial court’s final judgment does not find that Barkhausen lacked consumer status, even with regard to the merits of the underlying suit. Moreover, lack of consumer status under the DTPA was not raised as an issue, either in Craycom’s motion for summary judgment, or by counsel at trial.

Our review of the record leads us to conclude that Barkhausen pleaded an arguable suit against Craycom. Craycom failed to present any evidence at trial to support its contention that Barkhausen brought this lawsuit in bad faith motivated by a malicious or discriminatory purpose or for harassment purposes. Nor does evidence exist in the record to show that this lawsuit lacked any arguable basis in fact or law, and the trial court’s order does not state with particularity any evidence supporting its finding of frivolousness under the DTPA. Moreover, Craycom did not notify the trial court or opposing counsel as to the element or elements of the DTPA so lacking in merit as to constitute frivolousness. Instead, as it did in its summary judgment motion, at trial Cray-com defended the DTPA claims against it generally. Craycom’s position was that it did not misrepresent anything to Pamela Barkhausen, and that it “complied in all manners and to all agreements” in which they entered, “[and] violated no common law or statutory principle” with regard to the investment. The trial court agreed, but these are issues about which the witnesses and the documentary evidence clashed at trial. Craycom did not undertake the further showing that Barkhau-sen’s claims were so devoid of merit as to be frivolous. We conclude that, absent specific pleadings, argument, evidence, or trial court findings, the record cannot support the trial court’s award of sanctions under the DTPA. We therefore hold that the trial court should not have imposed sanctions under the DTPA.

Conclusion

We conclude that, under these circumstances, the trial court did not abuse its discretion in refusing Barkhausen’s request for a jury trial. We further conclude that the trial court abused it discretion in awarding Craycom $30,000 in sanctions because the trial court did not particularize the conduct justifying sanctions, and the evidence in the record does not support the imposition of sanctions. We therefore modify the judgment to delete the sanctions award, and affirm the judgment of the trial court as modified.

      . Chapter 38.001 allows recovery of attorney’s fees for some types of successful affirmative claims, but does not provide for the recovery of such fees to a prevailing defendant. See Tex. Civ. Prac. & Rem.Code Ann. § 38.001 (Vernon 1997).

      . Although the record fails to contain a written order granting a new trial, Craycom concedes that the trial court signed a written order granting a new trial.

      . The trial court signed an order reflecting the denial of the jury demand on January 23.

      . The trial court awarded Craycom $30,000 in attorney’s fees at the trial court level, $12,500 if Barkhausen appealed to this Court, $3,750 if he filed a petition for review with the Texas Supreme Court, and an additional $3,750 if the Texas Supreme Court granted his petition for review.

      . Chapter 9, however, is not applicable to cases in which Chapter 10, Rule 13, or the DTPA applies. See Tex. Civ. Prac. & Rem.Code Ann. §§ 9.004, 9.012(h) (stating that this chapter does not apply to the DTPA or any proceeding to which Section 10.004 or Texas Rule of Civil Procedure 13 applies). We therefore need not consider whether the trial court abused its discretion in awarding sanctions pursuant to Chapter 9 of the Civil Practice and Remedies Code. Moreover, Craycom presents no argument on appeal that the sanctions award is a justified exercise of the trial court’s inherent power.

      . We note that Barkhausen alerted the trial court that the sanctions order failed to meet the particularity requirements. Cf. Spiller v. Spiller, 21 S,W.3d 451, 456 (Tex.App.-San Antonio 2000, no pet.) (holding that court will not consider order that failed to include findings required by Rule 13 and Chapter 10 as basis for reversal because party did not alert trial court of error).

      . We do not address Barkhausen’s contention that the sanctions award is excessive, as we have reversed it on other grounds.


author: JOHN CAYCE, Chief Justice.

text:
    In the Interest of D.J.J., a Child.
    No. 2-04-374-CV.
    Court of Appeals of Texas, Fort Worth.
    Oct. 6, 2005.

      Boswell & Moore, P.C., Dawn A. Moore, Denton, TX, for appellant.
    Office of General Counsel, Duke Hooten, appellate Atty., Texas Department of Family and Protective Services, Gerry Williams, General Counsel, Johnnie Beth Page, Director of Program Litigation, Austin, TX, for appellee.

      PANEL A: CAYCE, C.J.; WALKER and McCOY, JJ.
   OPINION

JOHN CAYCE, Chief Justice.

Appellant Kevin J. appeals from the trial court’s order terminating his parental rights in his child, D.J.J. In twenty points, Kevin challenges the legal and factual sufficiency of the evidence to support the trial court’s termination order, challenges the constitutionality of Texas Rule of Civil Procedure 324(b)(2), and complains that his trial counsel was ineffective. We reverse and remand.

Kevin has never seen or lived with D.J.J. He was arrested for multiple drug possession offenses before D.J.J. was born and was still in jail when four-month-old D.J.J. was removed from his mother, Misty Z., due to her drug use. At the time of trial, Kevin was serving four concurrent five-year sentences for drug possession and evading arrest. He admitted that his incarceration was his own fault.

After a jury trial, the jury found that termination of Kevin’s parental rights would be in DJ.J.’s best interest, and Kevin’s parental rights were terminated on the following grounds:

1. He voluntarily left D.J.J. alone or in the possession of another without providing adequate support for the child and remained away for a period of at least six months;
2. He knowingly placed or allowed D.J.J. to remain in conditions or surroundings that endangered DJ.J.’s physical or emotional well being;
3. He engaged in conduct or knowingly placed D.J.J. with persons who engaged in conduct that endangered D.JJ.’s physical or emotional well being;
4. He failed to support D.J.J. in accordance with his ability for one year;
5. He constructively abandoned D.J.J.;
6. He faded to comply with the provisions of a court order that specifically established the actions necessary for him to obtain the return of D.J.J.;
7. He used a controlled substance in a manner that endangered D.J.J.’s health or safety and (1) failed to complete a court-ordered substance abuse treatment program or (2) after completion of the program continued to abuse a controlled substance;
8. He knowingly engaged in criminal conduct that has resulted in his conviction of an offense and his confinement or imprisonment and his inability to care for D.J.J. for not less than two years from the date of filing the petition for termination.

In his first eighteen points, Kevin challenges the legal and factual sufficiency of the evidence to support the grounds for termination and the best interest finding.

Following a jury trial, legal sufficiency challenges must be preserved in the trial court through one of the following procedural steps: (1) a motion for instructed verdict; (2) a motion for' judgment notwithstanding the verdict; (3) an objection to the submission of the question to the jury; (4) a motion to disregard the jury’s answer to a vital fact question; or (5) a motion for new trial. Challenges to the factual sufficiency of the evidence must be raised in a motion for new trial. It is undisputed that Kevin did not do any of these things. Therefore, Kevin’s legal and factual sufficiency challenges are waived on appeal. We overrule Kevin’s first through eighteenth points.

In his twentieth point, Kevin complains that his trial counsel was ineffective for failing to preserve his legal and factual sufficiency points in a motion for new trial.

In Texas, indigent parents such as Kevin have a statutory right to effective assistance of counsel in parental rights termination cases. To establish ineffective assistance, the appellant must first show that counsel’s performance was deficient. Second, the appellant must show that the deficient performance prejudiced his case.

In determining whether counsel’s performance in a particular case is deficient, we must take into account all the circumstances surrounding the case and must focus primarily on whether counsel performed in a reasonably effective manner. It is only when the conduct was so outrageous that no competent attorney would have engaged in it that the challenged conduct will constitute ineffective assistance.

Not every failure to preserve evidentia-ry challenges for appellate review rises to the level of ineffective assistance. Rather, we must indulge in the strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, including the possibility that counsel’s decision was based on strategy, or even that counsel, in his professional opinion, believed the evidence factually sufficient so that a motion for new trial was not warranted. Thus, if the evidence is legally and factually sufficient to support one of the grounds for termination and to prove that termination is in DJ.J.’s best interest, Kevin received effective assistance of counsel.

In proceedings to terminate the parent-child relationship brought under section 161.001 of the family code, the petitioner must establish one or more of the acts or omissions enumerated under subdivision (1) of the statute and must also prove that termination is in the best interest of the child. Both elements must be established; termination may not be based solely on the best interest of the child as determined by the trier of fact.

Termination of parental rights is a drastic remedy and is of such weight and gravity that due process requires the petitioner to justify termination by clear and convincing evidence. This intermediate standard falls between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings. It is defined as the “measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.”

Under the traditional no-evidence standard, a legal sufficiency challenge may be sustained when: (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence conclusively establishes the opposite of a vital fact. In parental rights termination cases, anything more than a scintilla is legally sufficient if “a factfinder could reasonably form a firm belief or conviction” that the grounds for termination were proven. In determining whether there is legally sufficient evidence to support the finding under review, we must consider evidence favorable to the finding if a reasonable factfinder could and disregard evidence contrary to the finding unless a reasonable factfinder could not.

We now turn to the grounds for termination. The Department argues that the evidence is legally and factually sufficient to support termination on the eighth ground found by the jury — that Kevin knowingly engaged in criminal conduct that has resulted in his conviction for an offense and his confinement or imprisonment and inability to care for D.J.J. for not less than two years from the date of filing the petition for termination. Kevin admits that he received four concurrent five-year prison sentences for drug possession and evading arrest, but he contends that there is no evidence he will still be incarcerated two years after the date the petition for termination was filed.

The Texas Supreme Court has held that the phrase “not less than two years from the date of filing the petition” applies prospectively. Thus, to support termination on this ground, the Department was required to prove that Kevin’s criminal convictions would result in his confinement for at least two years from the date the petition was filed.

In this case, it is undisputed that the Department petitioned to terminate Kevin’s parental rights on January 29, 2004 and that two years from the date of filing the petition will be January 29, 2006. It is also undisputed that there is no evidence regarding when Kevin will be released from prison. Mary Wolfe, the Child Protective Services case worker, testified, “[W]e don’t know when his release date is.” Because there is no evidence that Kevin’s convictions will result in his confinement for not less than two years from the date the petition was filed, the evidence is legally insufficient to support termination on this ground.

Further, there is no evidence to support the first, fourth, or fifth grounds for termination — that Kevin voluntarily left D.J.J. alone or in the possession of another for at least six months without providing adequate support; that Kevin failed to support D.J.J. in accordance with his ability; or that he constructively abandoned D.J.J. Kevin’s separation from D.J.J. was not voluntary because he was incarcerated before D.J.J. was born. Further, there is no evidence that Kevin had any means of providing support for D.J.J. or that D.J.J. lacked anything. Instead, the evidence shows that, at the time he was removed from Misty’s care, D.J.J. was developmentally on target, “happy, spoiled,” and well fed. In addition, the CPS caseworker admitted that no efforts, apart from setting up a service plan, were made to reunite Kevin and D.J.J. Accordingly, the evidence is legally insufficient to support termination on these grounds.

Likewise, there is no evidence to support the second and third grounds — that Kevin knowingly placed or allowed D.J.J. to remain in conditions or surroundings that endangered D.J.J.’s physical or emotional well being or engaged in conduct or knowingly placed D.J.J. with persons who engaged in conduct that endangered D.JJ.’s physical or emotional well being.

The phrase “conditions or surroundings” in section 161.001(1)(D) refers only to the acceptability of the child’s living conditions and does not concern the conduct of the parents toward the children. Section 161.001(1)(E), on the other hand, requires us to look at the parent’s conduct alone, including actions, omissions, or the parent’s failure to act.

Wolfe testified that D.J.J. was removed from Misty’s care because of her drug use, something Misty candidly acknowledged at trial. In addition, six months before DJ.J.’s birth, Kevin was arrested — and later imprisoned — on three drug possession charges. But there is no evidence that either Kevin’s or Misty’s drug use created an environment that endangered D.J.J.’s physical or emotional well being.

When he was removed from Misty’s care, D.J.J. was well cared for and had been receiving proper medical care. Further, a police officer called to Misty’s home just prior to the removal found no drug paraphernalia or other evidence of criminal activity, determined that D.J.J. “looked fine,” and told a CPS caseworker, who was also present, to leave.

Misty acknowledged that using drugs was “extremely dangerous” for D.J.J. and that she did not provide a safe environment for him and was unable to take proper care of him when she was abusing drugs. Neither she nor Wolfe, however, could give any examples of how Misty’s drug use threatened D.J.J.’s physical or emotional well being. Misty denied using drugs when she conceived or was pregnant with D.J.J., and Wolfe testified that D.J.J. had no exposure to drugs or alcohol. Wolfe also testified that she never saw any evidence of abuse.

Finally, there is no evidence that Kevin’s conduct in taking the methamphet-amines that resulted in his arrest and imprisonment endangered D.JJ.’s physical or emotional well being. Mere imprisonment, alone, is not conduct endangering a child. Moreover, Wolfe testified that the Department was not seeking termination based on Kevin’s incarceration. Accordingly, we hold that the evidence is legally insufficient to support termination on either of these grounds.

For these same reasons, the evidence is legally insufficient to support termination on the seventh ground — that Kevin used a controlled substance in a manner that endangered DJJ.’s health and safety and failed to complete a court-ordered substance abuse treatment program or, after completion, continued the drug abuse. Not only did Kevin’s substance abuse not endanger D.J.J.’s health and safety, but Kevin also, on his own initiative, successfully completed a thirty-hour substance abuse program while he was in prison, and he had joined and was participating in Narcotics Anonymous (NA).

Finally, we turn to the sixth ground for termination — that Kevin faded to comply with his service plan that established the actions necessary for him to obtain the return of D.J.J.

Wolfe testified that Kevin’s service plan required him to take a psychological evaluation and a drug assessment, notify the Department if he was transferred, complete parenting classes, develop a relationship with D.J.J. by sending him weekly letters through the Department, complete individual counseling, refrain from any and all criminal activity, submit to random drug testing, and attend AA and NA at least three times a week. Wolfe further testified, however, that while Kevin was incarcerated the Department only expected him to write weekly letters to D.J.J., contact the Department to find out about D.J.J.’s welfare, and attend AA or NA if those programs were available in the prison facility where Kevin was housed. According to Wolfe, the remaining services were unavailable to Kevin while he was incarcerated, so the Department did not expect him to comply with those requirements until after his release.

Wolfe testified that the Department had not received any letters from Kevin to D.J.J. and that Kevin had never contacted the Department to inquire about D.J.J.’s welfare. Kevin admitted that he had not written to D.J.J. once a week, as required by his service plan, but said he had written D.J.J. occasionally and sent those letters to D.J.J. through Misty. One letter, which Kevin testified he had written about three months before the termination trial, was admitted into evidence. Further, Misty testified that she had tried, unsuccessfully, to take D.J.J. to visit Kevin in jail before his convictions and that Kevin had several photographs of D.J.J.

Moreover, Wolfe acknowledged that Kevin had, while incarcerated, successfully completed a substance abuse counseling program in November 2003 — two months before the Department had prepared Kevin’s service plan. In addition, while Kevin had no access to most of the classes required by his service plan, he testified that he took every class that was available to him. Besides the substance abuse program, Kevin had successfully completed an anger/stress management course, obtained his GED, and had joined and was participating in NA and planned to continue in NA after his release. Also, Kevin testified that, at the time of trial, he was enrolled in a life skills class, was in the sixth week of a four-to-five-month vocational electrician training course, and had enrolled in Project Rio, a program that helps ex-offenders obtain jobs once they are released from prison. Kevin testified that he was doing these things so that he would have a way to support his family once he got out of prison.

Wolfe acknowledged that Kevin was doing what the Department would want an incarcerated parent to do by taking advantage of anything available to improve himself. Wolfe further testified that Kevin was cooperative when asked to sign an authorization to furnish the Department information — even though he knew the information obtained could be adverse to him — and when asked to sign his service plan. Finally, Wolfe conceded, that, outside of her initial meeting with Kevin in January 2004 to set up his service plan, neither she nor any other CPS employee had never attempted to contact Kevin again to help him comply with the plan— even though she knew which correctional facilities he was in. Indeed, Wolfe testified that Kevin “really didn’t have a chance” to comply with his service plan, and she admitted that, by January 2004, it was “pretty much” the Department’s plan to terminate both Misty’s and Kevin’s parental rights to D. J.J.

Even when viewed in the light most favorable to the jury’s finding, this evidence is insufficient to allow a factfinder to reasonably form a firm belief or conviction that Kevin had failed to comply with his service plan. The mere fact that Kevin had not written weekly letters to D.J.J., who was only twenty months old at the time of trial, is not, alone, legally sufficient to support this ground for termination by clear and convincing evidence.

Because the evidence is legally insufficient to support any of the Department’s grounds for terminating Kevin’s parental rights in D.J.J., we cannot presume that trial counsel’s failure to preserve Kev-iris legal sufficiency complaints in a motion for new trial was based on sound strategy or reasonable professional opinion. To the contrary, we can only conclude that counsel’s performance was deficient. Although counsel did not learn of Kevin’s desire to appeal the termination order until shortly before the filing deadline, “filing such a motion is not a difficult task.”

Having determined that trial counsel’s performance was deficient, we must also decide whether the defective performance caused harm; in other words, we must decide whether “there is a reasonable probability that, but for counsel’s unprofessional error(s), the result of the proceeding would have been different.” We must conduct our harm analysis as if the motion for new trial had been filed.

In this case, if trial counsel had properly preserved Kevin’s legal sufficiency complaints in a motion for new trial, the outcome of the proceeding would, indeed, have been different — Kevin would be entitled to a new trial in light of the legal sufficiency of the evidence to support termination. Therefore, we hold that Kevin’s trial counsel was ineffective. We sustain Kevin’s twentieth point.

Having sustained Kevin’s ineffective assistance complaint, we reverse the trial courts order of termination as to Kevin and remand the cause for a new trial.

      . Misty’s parental rights in D.J.J. were also terminated in the underlying proceeding; however, we dismissed her appeal for want of jurisdiction. See In re K.M.Z., No. 02-04-00374 — CV, 2005 WL 182958, 178 S.W.3d 432, (Tex.App.-Fort Worth Jan. 27, 2005, no pet.).

      . See Tex Fam.Code Ann. § 161.001(2) (Vernon 2002).

      . See id. § 161.001(C), (D), (E), (F), (N), (O), (P), (Q).

      . T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 220-21 (Tex.1992); Cecil v. Smith, 804 S.W.2d 509, 510-11 (Tex.1991).

      . Tex.R. Civ. P. 324(b)(2); Cecil, 804 S.W.2d at 510.

      . Tex Fam.Code Ann. § 107.013(a)(1) (Vernon Supp.2004-05), § 263.405(e) (Vernon 2002); In re M.S., 115 S.W.3d 534, 544 (Tex.2003).

      . M.S., 115 S.W.3d at 545.

      . Id.

        . Id.

        .Id.

      . Id. at 549.

      . See id. at 549-50 (stating that appellate court should find failure to file motion for new trial is ineffective assistance of counsel only when "the evidence to support termination was factually insufficient, and ... counsel’s failure to preserve a factual sufficiency complaint was unjustified and fell below being objectively reasonable”).

      . Tex. Fam.Code Ann. § 161.001; Richardson v. Green, 677 S.W.2d 497, 499 (Tex.1984); Swate v. Swate, 72 S.W.3d 763, 766 (Tex.App.Waco 2002, pet. denied).

      . Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.1987).

      . Tex. Fam.Code Ann. §§ 161.001, 161.206(a); In re G.M., 596 S.W.2d 846, 847 (Tex.1980).

      . G.M., 596 S.W.2d at 847; In re D.T., 34 S.W.3d 625, 630 (Tex.App.-Fort Worth 2000, pet. denied).

      . Tex. Fam.Code Ann. § 101.007 (Vernon 2002).

      . Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1998), cert. denied, 526 U.S. 1040, 119 S.Ct. 1336, 143 L.Ed.2d 500 (1999); Robert W. Calvert, "ATo Evidence" and "Insufficient Evidence” Points of Error, 38 TEX. L. REV. 361, 362-63 (1960).

      . In re J.F.C., 96 S.W.3d 256, 265 (Tex.2002); see also Romero v. KPH Consolidation, Inc., 166 S.W.3d 212, 220 (Tex.2005); S.W. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 622, 625 (Tex.2004).

      . City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex.2005).

      . The Texas Department of Family and Protective Services.

      . See Tex. Fam.Code Ann. § 161.001(1)(Q):

      . In re A.V., 113 S.W.3d 355, 359-60 (Tex.2003).

      . In re D.R.L.M., 84 S.W.3d 281, 295 (Tex.App.-Fort Worth 2002, pet. denied); accord In re R.F., 89 S.W.3d 258, 260 (Tex.App.-Corpus Christi 2002, no pet.); In re B.M.R., 84 S.W.3d 814, 817-18 (Tex.App.-Houston [1st Dist.] 2002, no pet.). In A.V. the supreme court did not hold, as the Department contends, that the evidence is sufficient to establish the two-year requirement if a parent is sentenced to serve at least two years. The sufficiency of the evidence was not challenged in A.V., and the father’s projected release date from prison was more than two years after the termination petition was filed. See A.V., 113 S.W.3d at 357, 362.

      . See Tex Fam.Code Ann. § 161.001(1)(Q).

      . See id. § 161.001(1)(C), (F), (N).

      . See id. § 161.001(l)(N)(i).

      . See id. § 161.001(1)(D)-(E).

      . Rodriguez v. Tex. Dep’t of Human Servs., 737 S.W.2d 25, 27 (Tex.App.-El Paso 1987, no writ), disapproved on other grounds, In re J.F.C., 96 S.W.3d 256 (Tex.2002); In re S.H.A., 728 S.W.2d 73, 84 (Tex.App.-Dallas 1987, writ ref'd n.r.e.).

      . In re DM., 58 S.W.3d 801, 811-12 (Tex.App.-Fort Worth 2001, no pet.).

      . Boyd, 727 S.W.2d at 533; In re S.D.H., 591 S.W.2d 637, 638 (Tex.Civ.App.-Eastland 1979, no writ).

      . See Tex. Fam.Code Ann. § 161.001(1)(P).

      . See id. § 161.001(1)(0). Apparently, the service plan is the only court order with which Kevin was required to comply. Wolfe could not recall whether Kevin had been ordered to pay child support, nor did she know whether a parent is ordinarily required to pay child support while incarcerated.

      . See J.F.C., 96 S.W.3d at 265-66.

      . Tex Fam.Code Ann. §§ 161.001, 161.206(a); G.M., 596 S.W.2d at 847.

      . See M.S., 115 S.W.3d at 549.

      . See id. at 545.

      . Id. at 549.

      . Id. at 549-50 (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App.2001), cert. denied, 537 U.S. 1195, 123 S.Ct. 1351, 154 L.Ed.2d 1030 (2003)).

      . See id. at 550.

      . Id.; see also Horrocks v. Tex. Dep't of Transp., 852 S.W.2d 498, 498-99 (Tex.1993) (holding that, if appellant preserves legal sufficiency complaint in motion for new trial, new trial is all the relief appellate court can give because that is all the relief appellant requested in trial court).

      . M.S., 115 S.W.3d at 550.

      . In light of our disposition of this point, we need not address Kevin's factual sufficiency challenges or his nineteenth point, in which he challenges the constitutionality of procedural rule 324(b)(2) as applied to termination proceedings. See Tex.R.App. P. 47.1. Rule 324(b)(2) provides that a motion for new trial is a prerequisite only to a factual sufficiency complaint following a jury trial. Tex.R. Civ. P. 324(b)(2).

      . See M.S., 115 S.W.3d at 550.