author: PER CURIAM.

text:
    Herschel Jerome HURD, Appellant, v. The STATE of Texas, State.
    No. 2-09-226-CR.
    Court of Appeals of Texas, Fort Worth.
    Aug. 19, 2010.
    Roderick C. White, Fort Worth, TX, for Appellant.
    Joe Shannon, Jr., Criminal District Attorney, Charles M. Mallín, Chief, Appellate Section, and Gregory A. Eyster, Tiffany Burks and Susan Pruett, Assistant District Attorneys for Tarrant County, Fort Worth, TX, for State.
    PANEL: GARDNER, J.; LIVINGSTON, C.J.; and MEIER, J.
   OPINION

PER CURIAM.

I. Introduction

Appellant Herschel Jerome Hurd appeals his conviction for aggravated assault on a public servant. He contends in three issues that the evidence is factually insufficient to establish the aggravating element of the offense, that the trial court erred by including an affirmative deadly weapon finding in the judgment, and that the judgment should be reformed to delete any reference to a firearm. We affirm the judgment as modified.

II. Background

At approximately 8 a.m. on August 20, 2008, Tarrant County Sheriffs Officer Michael Thompson escorted five inmates, Appellant, Christopher Shaw, James Edwards, Erick Davila, and Julian Torres, to the basketball gym on the eighth floor of the Tarrant County Jail. Officer Thompson conducted a pat-down search of each of the inmates before escorting them to the gym.

After Officer Thompson secured the exterior gym door and left the inmates to play basketball, the inmates called Officer Thompson back because there was water on the gym floor. Officer Thompson then took the inmates to another gym on the eighth floor, and Shaw and Torres entered the second gym. As Officer Thompson was closing the door to the second gym, Appellant, Davila, and Edwards attacked him and pushed him into a nearby vestibule. All three pushed, kicked, and punched Officer Thompson; Officer Thompson tripped, fell into the gym, and was kicked in the head. Appellant stepped on the back of Officer Thompson’s neck, told Officer Thompson not to move, and demanded that Officer Thompson tell him which key opened the door. Davila had a shank in his hand and began stabbing Officer Thompson. An inmate removed Officer Thompson’s wallet and keys and attempted to remove his shirt. Officer Thompson testified that the inmates told him that they would kill him if he did not give them an escape route; Officer Thompson gave them a route that was not an actual escape route.

Davila yelled that “somebody is coming” when an elevator arrived on the floor, and Appellant, Edwards, and Davila ran toward the elevator. Officer Teresa Otter-son and Tarrant County maintenance workers Nathan Peters and Charles Tucker were on the elevator. One of the inmates punched Officer Otterson in the head, and Officer Otterson fell to the floor. Appellant then punched Peters. Appellant, Edwards, and Davila then fled.

Officer Raymond Manning and other officers responding to the emergency call apprehended Appellant and Edwards as they were trying to open the back exit doors in the gym; Appellant had Thompson’s keys and was trying to open the door. Officer Manning testified that Appellant appeared to be trying to escape and that it did not appear that Appellant was being forced to participate. Officer Manning also testified that he observed blood on Appellant’s hands and that Appellant had an injury on his thumb near where he would have held a weapon.

Officer Thompson was taken to the hospital; he had a cut on his left cheek that required eleven stitches and a cut above his left eye that required three stitches. Officer Thompson also had pain in his neck, suffered from headaches, and did not return to work for nine weeks. He testified that he did not recall seeing a shank during the attack and does not know who stabbed him. He also testified, however, that he can definitively say that Appellant participated in the attack.

Officers recovered a shank, a homemade weapon, from the gym floor. They recovered a second shank from a sewer pipe connected to the toilets near the gym. The officers determined that the shanks had been made from heating elements provided to inmates to warm their food. Analysis of DNA collected from the first shank revealed a mixture of three DNA contributors, and Appellant could not be excluded as a contributor; a partial profile from DNA on the shank handle was consistent with Appellant’s DNA. And analysis of DNA from Appellant’s jumpsuit excluded all inmates other than Appellant and contained DNA from Thompson.

Shaw testified that prior to August 20, 2008, he became aware of an escape plan by Edwards and Appellant. Shaw overheard that the men were planning the escape attempt and saying that they needed another person. Shaw testified that he heard Appellant say that the third person would be Davila, Appellant’s “homeboy.” Shaw testified that the escape plan was Edwards’s idea and that Edwards was trying to force others to participate; Shaw described Edwards as a violent person with a murder conviction.

Shaw testified that Davila had a nickname, “Young Truman,” and that Davila was part of the Truman Street Bloods; Shaw is also a Blood. Shaw said that Appellant is a Crip and that Bloods and Crips do not normally associate with one another. However, Shaw testified that the “code” is different in jail, that self-preservation is the first priority in jail, and that self-preservation can sometimes mean affiliating with rival gang members.

Shaw also witnessed the attack. He testified that Davila, Edwards, and Appellant all hit Thompson with their fists, that Davila had a shank in his hand, that Davila was stabbing Thompson while Edwards held him, and that Appellant put his foot on the back of Thompson’s neck. Shaw referred to Appellant as the least aggressive of the three attackers but explained that he was referring to the relative violence involved in their underlying crimes, not their respective participation in the assault. Shaw said that Davila, Edwards, and Appellant were equal participants as he observed them before and during the attack. Shaw testified that, from overhearing the planning conversations and witnessing the attack, it appeared to him that Appellant was a participant in the assault and was not forced into participating.

On September 17, 2008, a grand jury indicted Appellant for aggravated assault on a public servant with a deadly weapon. Appellant pleaded not guilty and was tried in June 2009. The jury found Appellant guilty and assessed his punishment at sixty years’ confinement. The trial court sentenced Appellant accordingly and included an affirmative deadly weapon finding in the judgment.

III. Aggravating Element of the Offense

Appellant contends in his first issue that the evidence is factually insufficient to establish the aggravating element of his conviction for aggravated assault on a public servant. Specifically, Appellant argues that the evidence fails to show that he used the deadly weapon, a shank, or that he knew that a shank would be used. The State responds that the evidence is factually sufficient under the law of parties to support Appellant’s conviction.

A. Standard of Review

When reviewing the factual sufficiency of the evidence to support a conviction, we view all the evidence in a neutral light, favoring neither party. Steadman v. State, 280 S.W.3d 242, 246 (Tex.Crim.App.2009); Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App.2006). We then ask whether the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the factfinder’s determination is clearly wrong and manifestly unjust or whether conflicting evidence so greatly outweighs the evidence supporting the conviction that the factfin-der’s determination is manifestly unjust. Steadman, 280 S.W.3d at 246; Watson, 204 S.W.3d at 414-15, 417. To reverse under the second ground, we must determine, with some objective basis in the record, that the great weight and preponderance of all the evidence, although legally sufficient, contradicts the verdict. Watson, 204 S.W.3d at 417.

Unless we conclude that it is necessary to correct manifest injustice, we must give due deference to the factfinder’s determinations, “particularly those determinations concerning the weight and credibility of the evidence.” Johnson v. State, 23 S.W.3d 1, 9 (Tex.Crim.App.2000); see Steadman, 280 S.W.3d at 246. Evidence is always factually sufficient when it preponderates in favor of the conviction. Steadman, 280 S.W.3d at 247; see Watson, 204 S.W.3d at 417.

B. Applicable Law

1. Aggravated Assault on a Public Servant

A person commits the offense of aggravated assault on a public servant if he intentionally or knowingly threatens a person that the actor knows to be a public servant with imminent bodily injury while the public servant is lawfully discharging an official duty and employs a deadly weapon in the assault. See Tex. Penal Code Ann. §§ 22.01(a)(2), 22.02(b)(2)(B).

2. The Law of Parties

Under the law of parties, “[a] person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.” Tex. Penal Code Ann. § 7.01(a) (Vernon 2003); Frank v. State, 183 S.W.3d 63, 72 (Tex.App.-Fort Worth 2005, pet. ref'd). A person is “criminally responsible” for an offense committed by the conduct of another if, “acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.” Tex. Penal Code Ann. § 7.02(a)(2) (Vernon 2003); Frank, 183 S.W.3d at 72. In determining whether a defendant participated in an offense as a party, the factfinder may examine the events occurring before, during, and after the commission of the offense and may rely on actions of the defendant that show an understanding and common design to commit the offense. Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App.1996) (op. on reh’g).

C. Analysis

Reviewing all the evidence in a neutral light, we recall that no witnesses testified that Appellant knew a shank would be used during the assault. We also recall that Officer Thompson did not find any weapons when he searched Appellant before escorting the inmates to the gym, that the DNA analysis of one shank revealed contributors other than Appellant, that only Davila was seen with a shank, that Appellant introduced evidence that he may have been coerced into participating due to a threat against his family, that Edwards devised the escape plan and was attempting to force others to participate, and that it is not common for Bloods and Crips to associate with one another in the manner that Davila and Appellant apparently did. However, the jury also heard evidence that Appellant and Edwards were planning the escape attempt before Davila was transferred to the jail; that Appellant referred to Davila as his “homeboy”; that Appellant appeared to multiple witnesses to be an uncoerced and willing participant in the assault and escape attempts; that Appellant’s DNA was consistent with that found on one shank; that Appellant could not be excluded as a contributor of the DNA on the second shank; that Appellant’s and Thompson’s DNA were on Appellant’s jumpsuit; that Appellant punched Peters; that Appellant hit, kicked, and stepped on Thompson; that Appellant had an injury to his hand near where he would have held a weapon; and that Appellant was holding the keys and trying to open the exit door when he and Edwards were apprehended.

Appellant cites Wooden v. State to support his contention that the evidence is factually insufficient to establish the aggravating element of his conviction for aggravated assault on a public servant. See 101 S.W.3d 542, 547-48 (Tex.App.-Fort Worth 2003, pet. ref'd). In Wooden, we held that the evidence was legally insufficient to support the aggravating element of aggravated robbery because “there [was] no evidence in the record that appellant knew the gun was in the car or that appellant aided or encouraged the other passenger to threaten [the complainant] with the gun.” Id. at 548. However, in Wooden, there was no evidence that Wooden and his associates had previously planned the encounter with the complainant. See id. at 543-45. Instead, the complainant confronted Wooden and his associates after the complainant determined that the men were “up to no good.” Id. at 543. Here, there is evidence that Appellant and Edwards had planned to escape for a period of time before the actual assault and that the shanks were made from the heating elements provided to the inmates to warm their food. Further, multiple witnesses testified that Appellant was an active participant in the planning, the assault, and the escape attempt after the assault. The jury could have inferred that Appellant knew that the escape plan would include the use of the shanks.

Viewing all the evidence in a neutral light, and considering the events occurring before, during, and after the assault, we conclude that a rational trier of fact could have found beyond a reasonable doubt that Appellant, acting with intent to promote or assist the commission of the offense, solicited, encouraged, directed, aided, or attempted to aid Davila and Edward to commit the offense of aggravated assault on a public servant. See Tex. Penal Code Ann. § 7.02(a)(2); Frank, 183 S.W.3d at 72. We cannot say that the evidence is so weak that the jury’s determination is clearly wrong or manifestly unjust or that the conflicting evidence so greatly outweighs the evidence supporting the convictions that the jury’s determination is manifestly unjust. See Lancon v. State, 253 S.W.3d 699, 704 (Tex.Crim.App.2008); Watson, 204 S.W.3d at 414-15, 417. We therefore hold the evidence is factually sufficient to support the jury’s verdict. We overrule Appellant’s first issue.

IV. Affirmative Deadly Weapon Finding

Appellant argues in his second issue that the trial court erred by including an affirmative deadly weapon finding in the judgment because the jury did not make an express finding that Appellant either used or exhibited a deadly weapon or knew that a deadly weapon would be used or exhibited during the commission of the offense.

The indictment in this case charged Appellant with intentionally or knowingly causing bodily injury to Thompson and using or exhibiting “a deadly weapon during the commission of the assault, to-wit: a shank, that in the manner of its use or intended use was capable of causing death or serious bodily injury.” The trial court instructed the jury that Appellant is guilty of aggravated assault on a public servant as alleged in the indictment if the jury found beyond a reasonable doubt that Appellant intentionally or knowingly caused bodily injury to Thompson by kicking him with his foot, by striking Thompson with his hand, or by cutting or stabbing Thompson and “use[d] or exhibited] a deadly weapon during the commission of the assault, to-wit: a shank, that in the manner of its use or intended use was capable of causing death or serious bodily injury.” The charge also instructed the jury that Appellant was guilty of aggravated assault on a public servant if the jury found beyond a reasonable doubt that Appellant, “acting with the intent to promote or assist in the commission of the offense of aggravated assault on a public servant, solicited, encouraged, directed, aided, or attempted to aid Erick Davila or James Edwards to commit the offense of aggravated assault on a public servant.” Further, the jury charge included the lesser included offense of assault on a public servant that did not include a deadly weapon element.

In Bell v. State, the appellant made an argument virtually identical to Appellant’s. See 169 S.W.3d 384, 398-99 (Tex.App.-Fort Worth 2005, pet. ref'd). There, the appellant argued that “the trial court erred by including an affirmative finding of the use of a deadly weapon in its judgment.” Id. at 398. He argued that the jury was required to make an express finding that he knew that a deadly weapon would be used or exhibited during the commission of the offense because the jury charge allowed the jury to convict him as a party. Id. at 399. Rejecting the argument, we noted that the indictment charged the appellant with using a deadly weapon and that the jury found the appellant guilty as charged in the indictment. Id. at 398. We also stated,

To convict appellant of murder under the law of parties, the jury was required to find that appellant intended to promote or assist the commission of the offense. In other words, the jury was required to find that appellant intended to promote or assist Burdick in murdering Thompson with a deadly weapon, namely, appellant’s car. Therefore, before the jury could convict appellant as a party, it had to find that he knew a deadly weapon would be used in the commission of the offense. The trial court did not err by including an affirmative finding of the use of a deadly weapon in its judgment.

Id, at 398-99 (internal citations omitted); see Sarmiento v. State, 93 S.W.3d 566, 570 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd) (op. on reh’g, en banc).

The court in Sarmiento held that when a defendant is convicted under the law of parties, a specific finding that the defendant used or exhibited a deadly weapon or knew that a deadly weapon would be used or exhibited is not required when the use or exhibition of a deadly weapon is an element of the charged offense. See 93 S.W.3d at 569-70. The Sarmiento court stated:

[W]here the use of a deadly weapon is an element of the offense, the State automatically carries the burden of proving the defendant knew a weapon would be used or exhibited in the commission of the offense. In other words, even as a party, a defendant cannot be convicted unless his participation is accompanied with the intent “to promote or assist the commission of the offense.” The offense here was aggravated robbery, and the use of a deadly weapon was alleged in the indictment as an element of the offense. Thus, before jurors were authorized to find appellant guilty, even as a party, they first had to believe beyond a reasonable doubt that appellant knew a deadly weapon would be used in the commission of the offense. By its verdict, the jury necessarily made the factual finding to support the entry of an affirmative finding of the use or exhibition of a deadly weapon upon the judgment.

Id. at 570. (internal citations omitted); see also Johnson v. State, 6 S.W.3d 709, 714 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd) (same).

Appellant argues that because the jury charge did not repeat the language concerning the use or exhibition of a deadly weapon in the portion defining his criminal responsibility under the law of parties, “the record does not clearly show whether the conviction is grounded on direct or party liability.”

As in Bell and Sarmiento, the jury here was required to find that Appellant intended to promote or assist the commission of the offense before it could find him guilty of aggravated assault on a public servant. See Bell, 169 S.W.3d at 398-99; Sarmiento, 93 S.W.3d at 569-70. The trial court instructed the jury in the definition section of the charge that “[a]n assault is aggravated if the person intentionally or knowingly causes bodily injury to a person the actor knows is a public servant while the public servant is lawfully discharging an official duty and the actor uses or exhibits a deadly weapon during the assault.” [Emphasis added.] The trial court also instructed the jury that Appellant was guilty of aggravated assault on a public servant if the jury found beyond a reasonable doubt that Appellant, “acting with the intent to promote or assist in the commission of the offense of aggravated assault on a public servant, solicited, encouraged, directed, aided, or attempted to aid Erick Davila or James Edwards to commit the offense of aggravated assault on a public servant.” [Emphasis added.] Moreover, the jury charge included the lesser included offense of assault on a public servant, which did not include the aggravating deadly weapon element, but the jury did not convict Appellant of the lesser charge. We assume that the jury followed the trial court’s instructions in the absence of evidence to the contrary. See Williams v. State, 937 S.W.2d 479, 490 (Tex.Crim.App.1996). Because the jury had to believe beyond a reasonable doubt that Appellant used or exhibited a deadly weapon or knew a deadly weapon would be used or exhibited to assault Thompson before it could find Appellant guilty as charged in the indictment, a separate express deadly weapon finding by the jury was not required, and the trial court did not err by including an affirmative finding of the use of a deadly weapon in its judgment. See Bell, 169 S.W.3d at 398-99; Sarmiento, 93 S.W.3d at 569-70; Johnson, 6 S.W.3d at 714. We overrule Appellant’s second issue.

V. Reformation of Judgment

Appellant contends in his third issue that the judgment incorrectly lists a firearm as the deadly weapon used or exhibited during commission of the offense and that the judgment should be reformed to remove the reference to a firearm. The State concedes that the judgment incorrectly states that Appellant used or exhibited a firearm and requests that the judgment be reformed to substitute a “shank” for a firearm. We sustain Appellant’s third issue, in part, and order that the trial court’s judgment be modified to substitute a “shank” in place of the reference to a firearm. See Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App.1993); see also Asberry v. State, 813 S.W.2d 526, 529-31 (Tex.App.-Dallas 1991, pet. ref'd) (reforming judgment to include affirmative deadly weapon finding to correct trial court’s clerical error in failing to include the finding in judgment).

VI. Conclusion

Having overruled Appellant’s first and second issues, and having sustained Appellant’s third issue in part, we affirm the trial court’s judgment as modified.

      . See Tex. Penal Code Ann. §§ 22.01(a)(2), 22.02(a)(2), (b)(2) (Vernon Supp.2009).

      . Davila was also apprehended, but it is unclear from the record where he was apprehended.

      . The State offered rebuttal evidence, however, that the alleged threat occurred after the August 20, 2008 escape attempt.

      . Stephens v. State, 717 S.W.2d 338 (Tex.Crim.App.1986) is similarly distinguishable. There, the appellant was in his apartment when his associates entered the apartment escorting the complainant. Id. at 339. The appellant did not go with the men into the bedroom until some time later. Id. The court of criminal appeals held there was insufficient evidence of the aggravating element of aggravated rape because there was no evidence that the appellant was aware that anyone threatened the complainant with serious bodily injury or that the appellant was in the room where the complainant was raped while any such threat was made. See id. at 339-41.

      . We are aware of our holding in Barnes v. State that the trial court erred by including an affirmative deadly weapon finding in the judgment in the absence of a special jury issue on the use of a deadly weapon. See 56 S.W.3d 221, 240 (Tex.App.-Fort Worth 2001, pet. ref'd). In Barnes, we stated that "when the jury is instructed on the law of parties, the jury must expressly state that appellant either used or exhibited a deadly weapon or knew that one would be used or exhibited during the commission of the offense.” Id. (citing Taylor v. State, 7 S.W.3d 732, 740-41 (Tex.App.-Houston [I4th Dist.] 1999, no pet.)). We note, however, that subsequent to our decision in Barms, we issued our decision in Bell, and the Fourteenth Court of Appeals implicitly overruled Taylor. See Bell, 169 S.W.3d at 398-99; see also Sarmiento, 93 S.W.3d at 569-70 (expressly overruling three cases holding similarly to Taylor).


source: Caselaw Access Project

author: GUADALUPE RIVERA, Justice.

license: Public Domain

text:
    Joel ACOSTA, Appellant, v. TRI STATE MORTGAGE COMPANY, Appellee.
    No. 08-08-00296-CV.
    Court of Appeals of Texas, El Paso.
    Aug. 25, 2010.

      Fernando Chacon, El Paso, TX, for Appellant.
    Susan Forbes, Forbes & Forbes, El Paso, TX, for Appellee.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

GUADALUPE RIVERA, Justice.

Appellant, Joel Acosta (Acosta), complains in four issues that the trial court erred in denying both his motion to dismiss for lack of jurisdiction and his motion for new trial, and in awarding attorney fees. We reverse in part and affirm in part.

BACKGROUND

No-Answer Default Judgment

On June 18, 2008, Appellee, Tri State Mortgage Co., (Tri State), filed suit against Acosta for conversion, promissory estoppel, and fraud. Acosta was served with citation at 7:35 p.m. on July 16, 2008. Acosta did not file an answer.

On August 15, 2008, in Acosta’s absence, the trial court conducted a default judgment hearing. At the hearing, Tri State’s manager, Annette Roberts, testified that Tri State had closed a loan to Acosta in September 2007, and thereafter sold the loan to Chase Bank. Upon receiving paperwork from Chase Bank regarding the transaction, Ms. Roberts discovered that an error had been made regarding Acosta’s escrow account in an amount over $8,000. Tri State informed Chase Bank of its error. Ms. Roberts testified that Chase Bank informed Tri State that Chase had already issued a check to Acosta instead of Tri State, and that Tri State would be responsible for recovering the check from Acosta. Tri State contacted Acosta by telephone on November 2, 2007, and, more than once, informed him that the check was issued to him in error and that upon receiving it, he was not to deposit the check but, rather, was to return it to Tri State as the funds belonged to the company. Ms. Roberts testified that Acosta stated that he had not received the check and would bring it to Tri State if he received it. Two weeks later, on or about November 15, 2007, Tri State contacted Acosta again and Acosta informed Tri State that he had not yet received the check. Tri State again informed Acosta that he was to bring the check to Tri State and was not to cash the instrument as it belonged to Tri State. Tri State attempted to reach Acosta by phone on December 2, 2007, but Acosta did not answer its calls. Tri State contacted Chase Bank and filed a complaint with the reserve department in an attempt to track the check. On January 2, 2008, Tri State was notified that Acosta had, in fact, received and deposited the check on November 2, 2007, the date on which Acosta claimed that he had not received the check. Acosta began spending the funds on November 5, 2007. The check was admitted into evidence. After realizing that Acosta had cashed the check, Tri State issued a demand letter to Acosta on March 13, 2008, demanding that Acosta return the money. Acosta did not return the money to Tri State. At the default judgment hearing, Tri State requested exemplary damages, contending that Acosta’s conduct was fraudulent, malicious, and grossly negligent, and reminded the trial court that Acosta made representations to Tri State while knowing that he had already deposited and used Tri State’s money. Tri State’s counsel, Ms. Forbes, requested attorney’s fees, which the trial court noted it did not see in the file. Stating that she hoped the attorney’s fees were “there,” Ms. Forbes testified regarding the work she had performed. The trial court thereafter entered a default judgment against Acosta, awarding Tri State $8,243.28 in principal, $24,000 in exemplary damages, $1,500 in attorney’s fees, and other interest and costs.

Motion for New Trial

One month later, on September 15, 2008, Acosta filed a motion for new trial. The following day, Acosta filed an untimely-filed amended motion for new trial to which he had affixed two of his own affidavits.

In his timely-filed motion, to which no affidavits were attached, Acosta alleged that he had failed to answer the suit because he was served with citation on the day before he and his family left the state on a vacation that had been planned months in advance. The motion also alleged that, upon his return from vacation one and one-half weeks later, Acosta’s employer allegedly directed him to attend a mandatory out-of-town training that lasted approximately two weeks. Acosta returned on August 11, 2008, contacted an attorney, and received an appointment for August 15, 2008. During the appointment, Acosta’s attorney allegedly contacted the court and learned that the default judgment had been entered that same day.

In his motion, Acosta defended his conduct and contended that upon receiving the check, he returned it to the issuing entity, Chase Bank, as he did not know the purpose of the check. According to Acosta, Chase Bank held the check for three weeks and then notified Acosta that the money belonged to him. After receiving an alleged confirmation from Chase Bank, and purportedly in reliance upon it, Acosta deposited the check into his account at Chase Bank. Acosta asserted that Tri State never contacted him nor informed him of any mistake that may have occurred regarding the check until four months later, and he complained that neither Tri State nor Chase Bank explained why Tri State, rather than Acosta, was entitled to the funds. Acosta did not present any evidence from Chase Bank in support of his contentions.

Acosta raised other issues in his motion for new trial. He complained that Tri State did not request attorney’s fees and did not provide him with notice that attorney’s fees were being sought. He also asserted that Chase Bank was an indispensable party that was improperly omitted from the judgment and claimed that the failure to add Chase Bank as a party would deprive him of an opportunity to pursue his claims. Again, Acosta produced no evidence from Chase Bank.

Acosta requested that the trial court grant his motion for new trial as his failure to file an answer was due to mistake or accident and was not either intentional nor the result of conscious indifference, and contended that he responded to the suit quickly and prudently at his first available opportunity after receiving service of process. Acosta also asserted that he had a meritorious defense and at trial would show: (1) that he had acted upon the information provided to him by Chase Bank and had not engaged in tortious conduct; (2) that he had not agreed to Tri State’s attorney’s fees, which were not pled; and (3) that the exemplary damages awarded were excessive as his conduct did not warrant a grant of exemplary damages. Acosta stated that a new trial would not delay or prejudice Tri State, stated that he was both ready for trial and willing to reimburse Tri State for its reasonable expenses incurred in obtaining the default judgment.

Tri State’s Response

Tri State responded to Acosta’s new trial motion with the affidavits of three Tri State employees and a copy of the demand letter issued to Acosta. Ms. Roberts’ affidavit essentially restated her default-judgment hearing testimony.

In her affidavit, Ms. Lilly Velasquez, a Tri State accounting clerk, stated that during the last week of September 2007, a mistake in Acosta’s escrow account was discovered. During the first week of October 2007, Ms. Velasquez discovered that a check for $8,243.28 had been mistakenly issued to Acosta rather than Tri State. During the week of October 8, 2007, Ms. Velasquez telephoned Acosta at work, informed him that he would be receiving a check from Chase Bank, which had erroneously been made payable to him instead of Tri State. She instructed Acosta to not deposit the check, to return it to Tri State, and explained to him that the money belonged to Tri State because it constituted an overpayment of escrow that was taken from the Tri State account. Ms. Velasquez stated that Acosta informed her that he understood, agreed to return the money when he got it, and promised to call her when he received the check. She again spoke with Acosta at work on November 2, 2007, “confirmed” that he had not received the check, and instructed him to bring the check to Tri State when he received it. Acosta again promised to call upon receiving the check and informed Ms. Velasquez that he would also tell his wife to inform him if the check arrived in the mail. Approximately two weeks later, Ms. Velasquez again contacted Acosta who stated that he had not received the check and promised to either bring the check to Tri State or contact Ms. Velasquez so that she could pick it up from him. In early December 2007, Ms. Velasquez called Acosta at work and on his cell phones, left her phone number and detailed messages about the check, and requested that he call her. Ms. Velasquez did not receive any calls from Acosta. After discovering on January 4, 2008, that Acosta had previously cashed the check on November 2, 2007, Ms. Velasquez again attempted to call Acosta regarding the check and left messages for him, but Acosta never returned her calls.

The affidavit of Ms. Susan Nowak, a Tri State “loan closer,” was also submitted in support of Tri State’s response to the motion for new trial. Ms. Nowak was in charge of processing Acosta’s loan application and explained to Acosta at the time of his application that Tri State would sell the loan. Acosta’s loan was approved and Ms. Nowak shipped the appropriate documents to Chase Bank, which had purchased the loan on August 22, 2007. Tri State discovered the Acosta escrow error and Ms. Nowak learned during the first week of October 2007, that a check had been issued erroneously to Acosta rather than Tri State. Ms. Nowak informed Ms. Velasquez of the error, was present when Ms. Velasquez called Acosta, and heard Ms. Velasquez tell Acosta about the escrow mistake and the importance of returning the check as it did not belong to him and was sent in error. She also heard Ms. Velasquez both inform Acosta that he needed to contact Tri State as soon as he received the check and offer to pick up the check from Acosta. Ms. Nowak continued to consult with Ms. Velasquez thereafter but learned that, although messages were left for Acosta, he was no longer returning her calls.

New Trial Hearing

A hearing on Acosta’s new trial motion was held on September 22, 2008. The trial court struck as untimely the amended motion for new trial but, overruling Tri State’s objections, considered Acosta’s affidavit, which was tendered to the court by Acosta’s attorney. Acosta and Tri State each presented legal arguments to the court. Acosta did not call any witnesses, did not offer any other affidavits or other evidence in support of his motion, and failed to identify any witnesses, testimony, or evidence that he would present if a new trial was granted. After considering Acosta’s motion and affidavit, Tri State’s responses, arguments, and affidavits, and the applicable law, the trial court denied the motion for new trial. The trial court also entered detailed findings of fact and conclusions of law.

Plea to the Jurisdiction

Acosta thereafter filed a plea to the jurisdiction on September 30, 2008, to which Tri State responded. In his plea, Acosta contended that Chase Bank, not Tri State, owned and held the “note” and that Tri State could not sue in the name of Chase Bank, especially after Acosta’s loan was sold to Chase Bank, which issued the check. Acosta also noted that Tri State had admitted that Chase Bank refused to seek recovery of the check from him and transfer the funds to Tri State. Acosta claimed that the trial court lacked subject-matter jurisdiction over the dispute. The trial court denied Acosta’s plea to the jurisdiction and Acosta filed this appeal.

DISCUSSION

In his first issue, Acosta complains that the trial court erred in denying his plea to the jurisdiction because Tri State allegedly did not have standing to file suit in this matter.

As a component of subject-matter jurisdiction, which is never presumed, cannot be waived, and can be raised for the first time on appeal, we review a claimant’s standing de novo. Texas Dept. of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 646 (Tex.2004); Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444-45 (Tex.1993); Esty v. Beal Bank S.S.B., 298 S.W.3d 280, 293 (Tex.App.-Dallas 2009, no pet. h). Standing is a constitutional prerequisite to maintaining suit. Texas Dept. of Transp., 146 S.W.3d at 646; see Tex. Ass’n of Bus., 852 S.W.2d at 444; Hunt v. Bass, 664 S.W.2d 323, 324 (Tex.1984); Girsh v. St. John, 218 S.W.3d 921, 923 (Tex.App.-Beaumont 2007, no pet.). To have standing, a plaintiff must be personally aggrieved; his alleged injury must be concrete and particularized, actual or imminent, not hypothetical. Daimler-Chrysler Corp. v. Inman, 252 S.W.3d 299, 304 (Tex.2008). If a party lacks standing to bring an action, the trial court lacks subject-matter jurisdiction to hear the case. Town of Fairview v. Lawler, 252 S.W.3d 853, 855 (Tex.App.-Dallas 2008, no pet.).

The alleged absence of subject-matter jurisdiction may be raised in a plea to the jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). A plea to the jurisdiction is a mechanism by which a party contests the trial court’s authority to decide a case. Id.; El Paso County v. Navarrete, 194 S.W.3d 677, 682-83 (Tex.App.-El Paso 2006, pet. denied). The plea is dilatory and its purpose is to defeat a cause of action without addressing the merits of the case. Bland Indep. Sch. Dist., 34 S.W.3d at 554; Navarrete, 194 S.W.3d at 683. We review de novo a trial court’s ruling on a plea to the jurisdiction. Navarrete, 194 S.W.3d at 683.

Among its findings of fact and conclusions of law, the trial court made the following determinations. Tri State loaned funds to Acosta to purchase a home and Chase Bank purchased the loan from Tri State. Tri State accidentally overpaid funds into Acosta’s escrow account and Chase Bank acknowledged the error. Because Chase Bank’s check for $8,243.28 had issued on October 4, 2007, and had been mailed to Acosta, Chase Bank informed Tri State that Tri State was responsible for recovering the check from Acosta. Tri State had the right to immediate possession of the check issued by Chase Bank, which was personal property. During the week of October 8, 2007, and on November 2, 2007, and on November 15, 2007, Tri State notified Acosta that the check was issued by mistake due to an overpayment made by Tri State to the escrow account, that the funds did not belong to Acosta but, rather, to Tri State, and advised him to deliver the check to Tri State as soon as he received it. Acosta informed Tri State that he had not received the check but would return it upon receipt. Acosta then received the check, and knowing that it had been issued in error and that the check did not belong to him, Acosta endorsed and negotiated the check on November 2, 2007. The trial court found that Tri State was injured by Acosta’s actions and never received the $8,243.28 to which it was entitled.

The facts established in the record, along with the trial court’s findings and conclusions, demonstrate that Tri State had standing as it was personally aggrieved, and its injury was actual, concrete, and particularized. DaimlerChrysler Corp., 252 S.W.3d at 304. Consequently, because Tri State had standing to pursue its claim, we find that the trial court did not err when it denied Acosta’s plea to the jurisdiction. We overrule Acosta’s first issue on appeal.

As Acosta’s remaining three issues complain of trial court error alleged to have occurred during the new trial proceedings, we consider those issues together. A trial court possesses broad discretion in ruling on a motion for new trial, and an appellate court reviews the denial of a motion for new trial for an abuse of discretion. Cliff v. Huggins, 724 S.W.2d 778, 778-79 (Tex.1987). A trial court abuses its discretion when it acts without reference to any guiding rules or principles, not when it exercises that discretion in a manner different than a reviewing appellate court might. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985).

In his second issue, Acosta relies upon the Texas Supreme Court’s opinion in Craddock to support his position that the trial court should have set aside the default judgment and granted him a new trial. Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939). In Craddock, the Supreme Court of Texas held a default judgment should be set aside if the defendant establishes by its motion for new trial that: (1) the failure to answer before judgment was not intentional or the result of conscious indifference, but the result of an accident or mistake; (2) the motion for new trial sets up a meritorious defense; and (3) granting the motion will occasion no undue delay or otherwise injure the plaintiff. Craddock, 133 S.W.2d at 126. A defaulting defendant bears the burden of proving each of the three Craddock elements before a trial court is required to grant a motion for new trial. Scenic Mountain Medical Center v. Castillo, 162 S.W.3d 587, 590 (Tex.App.-El Paso 2005, no pet.). Acosta alleges that he has met each element of the Craddock test. We disagree.

We determine whether a party acted with conscious indifference in failing to answer the suit by examining the knowledge and acts of the party who failed to appear. 21st Century Home Mortg. v. City of El Paso, 281 S.W.3d 83, 86 (Tex.App.-El Paso 2008, no pet.). A party acts with conscious indifference by failing to take some action which would seem indicated to a person of reasonable sensibilities under the same circumstances. Liberty Mut. Fire Ins. Co. v. Ybarra, 751 S.W.2d 615, 618 (Tex.App.-El Paso 1988, no writ). Where the factual allegations in a movant’s affidavits are uncontroverted, and where the affidavits set forth facts that, if true, would negate the presence of intentional or consciously indifferent conduct, a motion for new trial should be granted. Strackbein v. Prewitt, 671 S.W.2d 37, 38-39 (Tex.1984). If the non-movant presents controverting evidence, the issue then becomes a fact question for the trial court. 21st Century Home Mortg., 281 S.W.3d at 86; see Ybarra, 751 S.W.2d at 618. When determining whether the movant’s factual allegations are controverted, we consider the entire record. 21st Century Home Mortg., 281 S.W.3d at 86; Scenic Mountain Medical Center, 162 S.W.3d at 590.

In our review of the entire record, we note a significant deficiency therein. After overruling Tri State’s objections to the offer of Acosta’s affidavit during the new trial hearing, the trial court stated that Acosta’s affidavit would be allowed, would be filed with the record, and would be considered by the court. However, we find that the affidavit considered by the trial court has not been made a part of the record and is not identified as a part of the record on appeal. This Court sua sponte requested that the District Clerk supplement the appellate record with Acosta’s affidavit and has been informed that the affidavit is not contained within the Clerk’s file. We also note that the District Clerk’s docket sheet does not contain an entry showing that the affidavit was filed with the Clerk. However, affixed to his untimely-filed amended motion for new trial, which the trial court struck, are Acosta’s two affidavits that the trial court was not able to consider. Nonetheless, assuming that Acosta’s missing affidavit was a duplicate of one or both of the untimely-filed affidavits, which in turn advance the same assertions set forth in Acosta’s motion for new trial, we find that the facts asserted therein are insufficient to meet the first Craddock element.

Acosta does not assert nor does he show that he did not have knowledge of the suit. Indeed, the citation served upon him on July 16, 2008, clearly informed Acosta that he had been sued, that he may employ an attorney, and that if no answer was filed with the clerk by 10 a.m. on the Monday next following the expiration of twenty days after he was served with citation and petition, a default judgment could be taken against him. There is no doubt that Acosta had knowledge of the suit. 21st Century Home Mortg., 281 S.W.3d at 86.

We next look at Acosta’s actions. In his new trial motion and his untimely-filed affidavits, Acosta alleges that on the day following service of citation, he left town to travel to San Diego on a family vacation for one and one-half weeks, and he asserts that upon his return, he was immediately dispatched by his employer to Florida for two-weeks on work-related business. Acosta contends that he “addressed the issue of answering the suit in the morning of his first business day back in town” and “expeditiously contacted his attorney,” believing “that he had sufficient time within which to file his answer since he acted promptly as soon as he returned home.” These assertions fail to support Acosta’s contention that his failure to file an answer was the result of mistake or accident and, instead, support a finding that Acosta acted with conscious indifference. Ybarra, 751 S.W.2d at 618. Making a telephone call to an attorney prior to the date an answer is due would seem to be the action indicated to a person of reasonable sensibilities under the same circumstances and, had Acosta done so, it is possible that an attorney could have timely prepared and filed the documents necessary to preserve Acosta’s legal rights and defenses. 21st Century Home Mortg., 281 S.W.3d at 86; Ybarra, 751 S.W.2d at 618. Acosta did not contact his attorney until August 11, 2008, the date on which his answer was due to be filed in court and does not demonstrate any reason why he could not have done so. Consequently, we find that the trial court did not abuse its discretion when it denied Acosta’s motion for new trial. Strackbein, 671 S.W.2d at 38-39; Downer, 701 S.W.2d at 241—42; Cliff, 724 S.W.2d at 778-79. Where a party fails to establish one of the three elements of the Craddock test, there is no reason to address the remaining elements. Scenic Mountain Medical Center, 162 S.W.3d at 590. We overrule Acosta’s second issue on appeal.

In his third issue on appeal, Acosta complains that the trial court erred in denying his motion for new trial without setting aside an award of attorney’s fees to Tri State for which he did not receive notice. During the default judgment hearing, at which Acosta and his attorney did not appear, Ms. Forbes asked to make a record regarding her attorney’s fees, and the trial court noted, “I don’t see that in here.” Ms. Forbes stated, “Hopefully, it’s there. It certainly was meant to be.” Ms. Forbes requested $1,500 in attorney’s fees, which the trial court awarded.

Generally, each litigant must pay its own attorney’s fees. MBM Fin. Corp. v. Woodlands Oper. Co., 292 S.W.3d 660, 663 (Tex.2009). Otherwise, the recovery of attorney fees from an adverse party is only permitted upon proving that such recovery is authorized by statute, by a contract between the litigants, or under equity. Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. National Dev. & Research Corp., 299 S.W.3d 106, 120 (Tex.2009); Knebel v. Capital Nat’l Bank, 518 S.W.2d 795, 799 (Tex.1975). A plaintiff must plead and prove attorney’s fees or waive them. State Farm Fire & Cas. Co. v. Leasing Enters., 716 S.W.2d 553, 555 (Tex.App.-Houston [14th Dist.] 1986, writ ref'd n.r.e.). While it is possible to provide an extensive analysis regarding the many intricacies and nuances which govern the recovery of attorney’s fees, we need not do so here.

The record fails to demonstrate that Ms. Forbes pled and proved that her recovery for attorney’s fees were authorized by statute, contract or equity. Consequently, she has waived any recovery of attorney’s fees and the trial court erred in awarding them. Akin, Gump, Strauss, Hauer & Feld, L.L.P., 299 S.W.3d at 120; State Farm Fire & Cas. Co., 716 S.W.2d at 555. We sustain Acosta’s third issue on appeal.

In his fourth issue on appeal, Acosta complains that Chase Bank was an indispensable party that was not properly joined or made subject to the default judgment.

All feasible parties should be joined in a lawsuit. Tex.R. Civ. P. 39(a). A party is feasible if, without the absent party, complete relief cannot be given to those who are already parties, and the absent party claims an interest in the subject matter of the action. Wilchester W. Concerned Homeowners LDEF, Inc. v. Wilchester W. Fund, Inc., 177 S.W.3d 552, 559 (Tex.App.-Houston [1st Dist.] 2005, pet. denied). Where a feasible party cannot be joined, the trial court must decide whether the absent person is indispensable. Tex.R. Civ. P. 39(b). The factors a trial court must consider when making this determination are: (1) the extent to which a judgment rendered in the person’s absence might be prejudicial to it or to those already parties; (2) the extent to which the prejudice can be lessened or avoided by protective provisions in the judgment, by the shaping of relief, or by other measures; (3) whether a judgment rendered in the person’s absence will be adequate; and (4) whether the plaintiff will have an adequate remedy if the action is dismissed for non-joinder. Tex.R. Civ. P. 39(b).

The facts in this case do not bear out Acosta’s complaint. While Chase Bank may have proven to be a beneficial witness to one or both of the parties had it been called for evidentiary purposes, it cannot be said under these facts and this record that complete relief could not be given to Tri State and Acosta without Chase Bank being named as a party. Nor is there any evidence in the record which supports a determination that Chase Bank claimed an interest in the subject matter of the action, that is, the check. Rather, the record demonstrates that Chase Bank recognized that Tri State was the appropriate party to pursue recovery of the errant check. Acosta has not demonstrated, and the record does not show, that the judgment rendered in Chase Bank’s absence would possibly be prejudicial to Chase Bank, to Tri State, nor to himself. Because the record supports the trial court’s determination that Chase Bank was not an indispensable party to this lawsuit, we find the trial court did not commit error. We overrule Acosta’s fourth issue.

CONCLUSION

Having sustained Issue Three, we reverse that part of the trial court’s judgment. Having overruled Issues One, Two, and Four, the remainder of the trial court’s judgment is affirmed.

      . Acosta did not appear or testify at his new-trial hearing.


author: G. ALAN WALDROP, Justice. JAN P. PATTERSON, Justice,

text:
    Clifford ZEIFMAN, Appellant, v. Laurie J. NOWLIN, Appellee.
    No. 03-08-00657-CV.
    Court of Appeals of Texas, Austin.
    Aug. 27, 2010.

      Clifford Zeifman, Riesel, TX, pro se appellant.
    Michael B. Johnson, Jeff D. Otto, Jesse B. Butler, Thompson, Coe, Cousins & Irons, L.L.P., Austin, TX, for appellee.
    Before Justices PATTERSON, PEMBERTON and WALDROP.
   OPINION

G. ALAN WALDROP, Justice.

This is a suit brought by a parent against an amicus attorney appointed by the trial court to assist the court in protecting the best interests of a child in a suit affecting the parent-child relationship. This suit is an unfortunate off-shoot of one of the most contentious divorce and child custody proceedings to come before this Court — repeatedly—in recent years. Appellant Clifford Zeifman sued appellee Laurie J. Nowlin alleging fraud and “gross negligence” on the part of Nowlin acting as the amicus attorney in proceedings regarding the implementation of certain provisions of the divorce decree between Zeif-man and his former wife Sheryl Michels. The district court granted a summary judgment in Nowlin’s favor on the basis that she is statutorily immune from the claims brought by Zeifman and owes him no duty of care with respect to her work. The district court also awarded Nowlin sanctions against Zeifman in the form of attorneys’ fees on the basis that his claims are frivolous. We affirm the judgment of the district court.

Background

Zeifman and Michels were divorced in 1998. They had two children — a son with special educational needs and a daughter. Since the divorce, disputes over the education and care of the children have generated substantial and acrimonious litigation. In 2005, Michels filed a petition to modify parent-child relationship, raising issues as to who would act as their son’s guardian and what school he would attend. The trial court appointed Nowlin to act as an amicus attorney for Zeifman’s son in these proceedings. The parties ultimately reached an agreed settlement in February 2007 of the dispute over the motion to modify.

Zeifman filed this action against Nowlin in March 2008, alleging causes of action for fraud and “gross negligence” and complaining of Nowlin’s performance of her duties as amicus attorney for his son. Nowlin filed a general denial and raised the affirmative defense of immunity. See Tex. Fam.Code Ann. § 107.009 (West 2008) (providing court-appointed amicus attorneys immunity from liability for actions taken, recommendations made, or opinions given in that capacity). Nowlin filed a motion for summary judgment on Zeifman’s claims of fraud and “gross negligence.” Nowlin also filed a motion for sanctions. The trial court granted the motion for summary judgment and the motion for sanctions. The trial court ordered Zeifman to pay Nowlin $39,999 as sanctions for filing a frivolous lawsuit. In this appeal Zeifman challenges both the summary judgment and the order granting sanctions. We affirm.

Standard of review

We review the trial court’s summary judgment rulings de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). When, as here, the district court’s order does not specify the grounds for its summary judgment, we must affirm the order granting summary judgment if any of the grounds presented to the district court and preserved for appellate review are meritorious. See Provident Life & Accident Ins. Co., 128 S.W.3d at 216.

A defendant moving for a traditional summary judgment must conclusively negate at least one essential element of each of the plaintiffs causes of action or conclusively establish each element of an affirmative defense. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). Once the defendant has done so, the burden shifts to the plaintiff to produce evidence creating a fact issue on the element or defense. See Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996). A genuine issue of material fact exists if the nonmovant produces more than a scintilla of evidence establishing the existence of the challenged element. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004). More than a scintilla of supporting evidence exists if the evidence would allow reasonable and fair-minded people to differ in their conclusions. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex.2003). “Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion’ of a fact.” Id. (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983)).

Summary judgment on the fraud claim

In his first issue, Zeifman complains that the district court erred by granting summary judgment in Nowlin’s favor on his fraud claim. Nowlin sought summary judgment on the basis that she is immune from this type of fraud claim pursuant to section 107.009 of the family code. Section 107.009 provides:

A guardian ad litem, an attorney ad litem, or an amicus attorney appointed under this chapter is not liable for civil damages arising from an action taken, a recommendation made, or an opinion given in the capacity of guardian ad litem, attorney ad litem, or amicus attorney.

Tex. Fam.Code Ann. § 107.009(a). There are certain exceptions to this immunity. The statutory immunity does not apply to an action taken, recommendation made, or opinion given (1) with conscious indifference or reckless disregard to the safety of another; (2) in bad faith or with malice; or (3) that is grossly negligent or willfully wrongful. Id. § 107.009(b). There is no exception to this statutory immunity for a claim that the amicus attorney committed fraud with respect to one of the parents of a child the attorney is assisting.

The summary judgment evidence conclusively proves that Nowlin was appointed to serve as an amicus attorney in the underlying suit pursuant to family code section 107.021. See id. § 107.021 (West 2008). All of the allegations supporting Zeiftnan’s causes of action pertain to Now-lin’s performance of her duties as amicus attorney and actions taken in that capacity. Nowlin sought summary judgment on the basis that she conclusively proved the application of section 107.009. Nowlin demonstrated that Zeifman’s claims for damages in this lawsuit derive from and challenge the service she provided as ami-cus attorney — a fact that is not disputed— and, therefore, conclusively established that she was entitled to immunity for any claim not covered by an exception. The immunity statute recognizes no exception for allegations of fraud as to the parents. The trial court properly granted summary judgment on Zeifman’s fraud claim.

Moreover, even if Zeifman’s fraud claim could be construed to allege a cause of action for conduct that could fit within an exception to immunity, summary judgment is still proper. Once Nowlin conclusively established as an affirmative defense that she was entitled to the statutory immunity afforded an amicus attorney, the burden of production shifted to Zeifman to present evidence sufficient to create a fact issue on at least one element of either the affirmative defense or an exception to the affirmative defense. See Palmer v. Enserch Corp., 728 S.W.2d 431, 435 (Tex.App.-Austin 1987, writ ref'd n.r.e.) (citing Moore Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934 (Tex.1972)). Zeifman did not produce or file any summary judgment evidence at all in response to Now-lin’s motion, relying instead solely on the allegations contained in his petition. It is well-settled that, with exceptions that do not apply here, pleadings are not competent summary judgment evidence. Laidlaw Waste Sys. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex.1995); Hidalgo v. Surety Sav. & Loan Ass’n, 462 S.W.2d 540, 543-44 (Tex.1971). Zeifman cannot rely on his pleadings to claim that he met his burden of producing evidence to create a fact issue on the application of section 107.009. We overrule Zeifman’s first issue.

Summary judgment on the “gross negligence” claim

In his second issue, Zeifman contends that the trial court erred by granting judgment in Nowlin’s favor on his “gross negligence” claim. Nowlin sought summary judgment on the basis that an amicus attorney appointed to assist the court in a suit affecting the parent-child relationship owes no duty of care to either of the child’s parents. Thus, Nowlin argued, Zeifman’s negligence claim fails as a matter of law for lack of an essential element.

The family code defines an “ami-cus attorney” as “an attorney appointed by the court in a suit, other than a suit filed by a governmental entity, whose role is to provide legal services necessary to assist the court in protecting a child’s best interests rather than to provide legal services to the child.” Tex. Fam.Code Ann. § 107.001(1) (West 2008). The amicus attorney is appointed to assist the court, not to represent the child or either of the parents. See O’Connor v. O’Connor, 245 S.W.3d 511, 515 (Tex.App.-Houston [1st Dist.] 2007, no pet.). Therefore, it is the trial court, not the parties, to whom the amicus attorney is responsible for the limited purposes delineated in the statute. Id. The amicus attorney owes a duty of competent representation to the trial court, not to the parents. We hold that an amicus attorney appointed by the court in a suit affecting the parent-child relationship has no duty of care to either parent. The trial court properly granted Nowlin’s motion for summary judgment on Zeif-man’s “gross negligence” claim. We overrule Zeifman’s second issue.

Imposition of sanctions

In three issues, Zeifman challenges the district court’s sanctions order. We review a trial court’s ruling on a motion for sanctions applying an abuse of discretion standard. Low v. Henry, 221 S.W.3d 609, 614 (Tex.2007). The trial court abuses its discretion when it acts without reference to any guiding rules or principles such that its ruling is arbitrary or unreasonable. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). In this case, the district court imposed sanctions pursuant to rule 13 of the rules of civil procedure, chapter 10 of the civil practice and remedies code, and its inherent power. See Tex.R. Civ. P. 13; Tex. Civ. Prac. & Rem.Code Ann. §§ 10.001-.006 (West 2002). If the district court’s imposition of sanctions is supported under one of these legal bases, we will affirm the order.

Rule 13 provides:

The signatures of attorneys or parties constitute a certificate by them that they have read the pleading, motion, or other paper; that to the best of them knowledge, information, and belief formed after reasonable inquiry the instrument is not groundless and brought in bad faith or groundless and brought for the purpose of harassment.... If a pleading, motion or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, after notice and hearing, shall impose an appropriate sanction available under Rule 215 ... upon the party who signed it, a represented party, or both.

Tex.R. Civ. P. 13. Rule 13 defines “groundless” as having “no basis in law or fact and not warranted by good faith argument for the extension, modification, or reversal of existing law.” Id. Generally, courts presume that pleadings and other papers are filed in good faith. Low, 221 S.W.3d at 614. The party seeking sanctions bears the burden of overcoming this presumption. Id.

Zeifman contends that the trial court abused its discretion in imposing sanctions under rule 13 because (1) the court’s order does not “state the particulars showing that Zeifman’s Petition had no basis in law and fact,” and (2) the evidence adduced at the hearing failed to establish that his suit was groundless and brought in bad faith or to harass. This is not the case. The trial court’s order recited several bases for the sanctions award, including, but not limited to, the following:

• Nowlin did have extensive records of her activities and performed numerous objective functions in the underlying SAPCR, and therefore, the allegations in paragraph 2 of Zeifman’s petition have no basis in fact and are lacking evidentiary support;
• Nowlin conducted multiple interviews with the prospective custodians, interviewed numerous doctors, and interviewed personnel at the child’s school, and therefore, the allegations in paragraph 11 of Zeifman’s petition have no basis in fact and are lacking evidentia-ry support;
• Nowlin did not sit at the table with Zeifman’s ex-wife during court hearings and did not stay in the room with Zeifman’s ex-wife during mediation, and therefore, the allegations in paragraph 13 of Zeifman’s petition have no basis in fact and are lacking evidentia-ry support;
• Zeifman did not make a reasonable inquiry into the legal and factual basis of the claims he presented in his pleadings in this matter; and
• Zeifman was aware that the petition in this case contained allegations and other factual contentions that lacked evi-dentiary support and were not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

These findings and others contained in the order adequately “set forth the particulars” regarding how Zeifman’s petition violated rule 13 by making allegations that had no basis in fact. These findings justify the imposition of sanctions under rule 13.

With respect to the evidentiary support for the trial court’s findings, a review of the evidence presented to the trial court during the two-day evidentiary hearing reveals that it was more than sufficient to establish not only that the allegations Zeif-man made were false, but that he knew them to be false when he filed his petition. Nowlin’s motion for sanctions maintains that Zeifman’s petition contains numerous allegations that Zeifman knew at the time of filing were false. For example, in his petition, Zeifman alleged that:

After a brief meeting with counsel for the ex-wife, Defendant moved into her job with a complete lack of fervor. She had an idea in mind and had no plans to perform her court-appointed functions. Defendant did not interview prospective custodians, did not visit any of the places that were being considered for the child to live, apparently did not interview any doctors or teachers, or take any action other than to ask the ex-wife’s counsel what she wanted to do.

This allegation is demonstrably false. The record evidence shows that Nowlin, an experienced family law practitioner, rather than acting “with a complete lack of fervor,” diligently performed her duties as an amicus attorney. The prospective custodians for the child at issue were an aunt and uncle. Nowlin, in fact, interviewed the prospective custodians on more than one occasion, met with them in person, and even participated in activities with them and the child. Despite his pleadings in the trial court, Zeifman admits the actual facts in his briefing in this Court. Immediately after her appointment Nowlin met with at least two doctors that she enlisted to evaluate the child and prepare reports of their findings, and she interviewed the child’s own psychologist and the family therapist in Austin. She also actively monitored the child’s progress at school through numerous interviews with the school psychologist. She also spoke directly to his teachers. Throughout her service as an amicus attorney, Nowlin kept both Zeifman’s and Michels’s counsel informed of her activities and views as to their son’s situation. The identities of the doctors and teachers with whom Nowlin consulted were disclosed in witness lists, and several of them were deposed by counsel for Zeifman. Zeifman had actual or constructive knowledge of all of the activities Nowlin undertook during her tenure as amicus attorney in the underlying proceedings. He knew, therefore, that his allegation that Nowlin “had no plans to perform her court-appointed functions” was false.

Zeifman also alleged that:

[Nowlin] began to de facto assume the role of co-counsel for the ex-wife. She insisted on sitting with the [ex-wife] at all hearings. When the parties went to mediation to try to resolve the issues, Defendant asked to be in the room with the ex-wife.

At the evidentiary hearing on her motion for sanctions, Nowlin unequivocally denied these allegations, testifying that she sat at her own table near the court reporter during hearings and that she had her own room at the mediation where she remained except when the mediator requested that she accompany him to each of the separate rooms occupied by the parties. Neither Zeifman, who did not even attend the hearing on the motion for sanctions, nor his counsel produced any evidence contradicting or challenging Nowlin’s testimony in any way. Nevertheless, in briefing to this Court, Zeifman, relying solely on the allegations he made in his petition without any supporting evidence, argues that the issue is “hotly contested.” Zeifman argues, “in light of this evidence, the district court must have reached its conclusions by making an assessment as to the relative credibility of the witnesses and the evidence.” Again, Zeifman makes the erroneous assumption that allegations made in his pleadings constitute evidence. Rather than remaining “hotly contested,” the allegations were conclusively proven to be false at the evidentiary hearing in the trial court with no contradiction by Zeifman.

The record plainly and thoroughly supports the trial court’s findings that Zeif-man knowingly made allegations in his petition that had no basis in fact and that his suit was groundless and filed in bad faith. Under these circumstances, the trial court was well within its discretion to impose sanctions under rule 13 of the rules of civil procedure. We overrule Zeifman’s third issue. Because we affirm the award of sanctions on this ground, we need not address Zeifman’s fourth and fifth issues challenging the imposition of sanctions pursuant to chapter 10 of the civil practice and remedies code or the court’s inherent power.

Amount of sanctions

In his seventh issue, Zeifman complains of the amount of sanctions imposed. We review the propriety of the amount of sanctions imposed under an abuse of discretion standard. Id. at 619. Nowlin’s motion for sanctions included an affidavit from her counsel stating that he had billed her $38,354 in attorneys’ fees to date and had incurred an additional $18,610.12 in fees and costs that he had not yet billed. This affidavit was admitted without objection. The court imposed sanctions of $40,000, an amount approximately equal to the attorneys’ fees billed. Rule 13 allows for sanctions in the amount of attorneys’ fees incurred in defending a groundless suit. See Tex.R. Civ. P. 13, 215.2(b)(8). The district court made a specific finding that “the sanctions imposed herein are the minimum sanction sufficient to deter” Zeif-man’s conduct. We reject Zeifman’s arguments that the district court assessed the monetary sanction without reference to guiding principles or without considering less severe sanctions. We overrule Zeif-man’s seventh issue.

Requested continuance

Zeifman’s sixth issue complains of the district court’s denial of a motion to continue the hearing on the motion for sanctions. The day before the hearing, Zeifman filed an unverified motion for continuance. The trial court denied the motion. We review the district court’s ruling on a motion for continuance under an abuse of discretion standard. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.1986). Rule 251 of the rules of civil procedure governs continuances and provides that no continuance may be granted “except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law.” Tex.R. Civ. P. 251. The supreme court has instructed that generally, when the movant fails to comply with the requirement that the motion for continuance be “supported by affidavit,” we are to presume that the trial court did not abuse its discretion in denying the motion. Villegas, 711 S.W.2d at 626. Applying that presumption here, we conclude that the trial court did not abuse its discretion in denying Zeifman’s unverified motion for continuance.

Zeifman attempts to avoid the consequences of filing an unverified motion for continuance by arguing on appeal that he was “entitled to a continuance by operation of law” because his motion stated that he was unavailable to attend the evidentiary hearing and the district court could not convene the hearing without Zeifman’s presence. However, the trial court is not required to grant a motion for continuance just because a party is not present. See Briscoe v. Goodmark Corp., 130 S.W.3d 160, 169 (Tex.App.-El Paso 2003, no pet.). Moreover, in order to obtain a continuance based on his unavailability, the party must file a motion explaining, among other things, what the party’s testimony is expected to prove and that the continuance is not sought for the purpose of delay, but so that justice may be done. See Tex.R. Civ. P. 252; Richards v. Schion, 969 S.W.2d 131, 133 (Tex.App.-Houston [1st Dist.] 1998, no pet.); Humphrey v. Ahlschlager, 778 S.W.2d 480, 483 (Tex.App.-Dallas 1989, no writ). The motion must be verified. Tex.R. Civ. P. 251. Zeifman offered no evidence in support of his motion, no explanation of his expected testimony, and no verification of his motion. The trial court did not abuse its discretion in denying the motion for continuance. We overrule Zeif-man’s sixth issue.

Conclusion

Having overruled Zeifman’s seven issues, we affirm the district court’s judgment.

Concurring Opinion by Justice PATTERSON.

JAN P. PATTERSON, Justice,

concurring.

I concur in the judgment, affirming the trial court’s judgment. I agree that the trial court did not err in granting summary judgment and did not abuse its discretion in imposing sanctions. I write separately to address the immunity from liability for amicus attorneys in family law cases.

In 2003, the legislature created the new court-appointed position of amicus attorney as part of an overhaul to chapter 107 of the family code concerning court-ordered representation in a suit affecting the parent-child relationship (SAPCR). See Act of June 18, 2003, 78th Leg., R.S., ch. 262, 2003 Tex. Gen. Laws 1173, 1173-83 (current version at Tex. Fam.Code Ann. §§ 107.001-031 (West 2008 & Supp. 2009)); see generally Deborah H. Lehrmann, Court-Appointed Representation of Children in Texas Family Law Cases A Practical Guide for Attorneys § 3.14[1] (2009-2010 ed.). An amicus attorney’s role in a family law case is “to provide legal services necessary to assist the court in protecting a child’s best interests rather than to provide legal services to the child.” See Tex. Fam.Code Ann. § 107.001(1) (West 2008); see also In re Baby Boy R., 191 S.W.3d 916, 922 n. 2 (Tex.App.-Dallas 2006, pet. denied) (“The role of the amicus attorney is not to provide legal representation to the parent, but to assist the court in protecting the child.”)- Amicus attorneys are afforded immunity under section 107.009 of the family code. See Tex. Fam. Code Ann. § 107.009 (West 2008) (amicus attorney “not liable for civil damages arising from an action taken, a recommendation made, or an opinion given in the capacity of ... amicus attorney”).

Our sister court’s analysis in Delcourt v. Silverman, 919 S.W.2d 777, 786 (Tex.App.Houston [14th Dist.] 1996, writ denied), is instructive concerning the policy underlying immunity for amicus attorneys in family law cases. Although it was decided prior to the 2003 amendments to chapter 107 of the family code, the court held that guardians ad litem were afforded immunity from liability for their “actions taken pursuant to and within the scope of their appointment, provided that the appointment contemplates the ad litem acting as an extension of the court.” See id. In reaching its holding, our sister court acknowledged the underlying policy for affording immunity:

The policy underlying derived judicial immunity that protects participants in judicial and other adjudicatory proceedings is sound. Not only does the policy guarantee an independent, disinterested decision-making process, these immunities prevent the harassment and intimidation that might otherwise result if disgruntled litigants could vent them anger by suing either the person who presented the decision maker with adverse information, or the person or persons who rendered an adverse opinion.

Id. at 782 (citation omitted). The court recognized that guardians ad litem “must be able to make impartial recommendations to the court” without the threat of liability. Id. at 785. The court further stated:

“Often, parents are pitted against one another in an intensely personal and militant clash. Innocent children may be pawns in the conflict. To safeguard the best interests of the children, however, the guardian’s judgment must remain impartial, unaltered by the intimidating wrath and litigious penchant of disgruntled parents. Fear of liability to one of the parents can warp judgment that is crucial to vigilant loyalty for what is best for the child; the guardian’s focus must not be diverted to appeasement of antagonistic parents.”
Thus, the threat of liability could distort the ad litem’s investigative role and substantially impede his or her ability to ascertain and report to the court the best placement for the child. In turn, “the ability of the judge to perform his or her judicial duties would be impaired and the ascertainment of truth obstructed.” ... Second, the availability of qualified attorneys to represent children in the midst of a custody dispute might be affected if disgruntled or vituperative parents could hold the guardian ad litem personally liable.

Id. (citations omitted).

The underlying policy for affording guardians ad litem immunity prior to the 2003 amendments to the family code is equally applicable to the immunity afforded court appointed attorneys under section 107.009 of the family code. See Tex. Fam. Code Ann. § 107.009. Section 107.009 “substantially codifies existing case law that holds that the doctrine of derived judicial immunity applies to lawyers appointed as guardians ad litem in the family law context because they conduct their duties as extensions of the court.” Lehrm-ann, supra, § 3.14[l][k], The policy is particularly applicable to an amicus attorney who solely functions as “an extension of the court.” See, e.g., Delcourt, 919 S.W.2d at 786.

To hold otherwise would thwart the intent of the statute. After bringing this suit, Zeifman filed a motion to modify a prior order in the underlying SAPOR; Nowlin refrained from acting as the ami-cus attorney going forward. In its order sanctioning Zeifman, the trial court found that “the filing of Plaintiffs Original Petition in this matter was intended to and actually did cause Ms. Nowlin to refrain from acting as amicus attorney in future proceedings in the Underlying SAPOR.” The court concluded:

... Plaintiffs pleadings and conduct effectively caused Ms. Nowlin to refrain from acting as amicus attorney in [the underlying SAPOR], and to refrain to act as amicus attorney in other cases because of the threat of suit.

Further, at the hearing on the motion for sanctions, Nowlin testified that she no longer takes amicus attorney appointments at all because “I am just going to be a target.” Because of this suit, the “availability” of a qualified amicus attorney in the underlying SAPOR, as well as other family law cases, may have been affected. See id. at 785.

With these comments, I concur in the judgment, affirming the trial court’s judgment.

      . See Michels v. Zeifman, No. 03-08-00287-CV, 2009 WL 349167, 2009 Tex.App. LEXIS 1017 (Tex.App.-Austin Feb. 12, 2009, pet. denied) (mem. op.); Zeifman v. Michels, 229 S.W.3d 460 (Tex.App.-Austin 2007, no pet.); In re Zeifman, No. 03-06-00601-CV, 2006 Tex.App. LEXIS 11340 (Tex.App.-Austin Nov. 22, 2006, orig. proceeding); Zeifman v. Michels, 212 S.W.3d 582 (Tex.App.-Austin 2006, pet. denied).

      . The basis of Zeifman’s fraud claim is an allegation of misrepresentation of fact. Zeif-man does not make any independent allegations of bad faith or malice to the court, his son, or anyone else.

      . The role of an amicus attorney is different from that of an “attorney ad litem,” who "provides legal services to a person, including a child, and who owes to the person the duties of undivided loyalty, confidentiality, and competent representation.” Tex. Fam. Code Ann. § 107.001(2) (West 2008).

      . Because the issue is not before us, we express no opinion as to what duties the amicus attorney may have to the child whose best interests he is charged with assisting the court to protect.

      . We note that Zeifman attended the mediation referenced in his pleadings and his attorney(s) attended the hearing referenced in his pleadings. If evidence contradicting Nowlin exists, it was available to Zeifman.

      . The courts may not appoint an amicus attorney in suits filed by governmental entities under chapter 107 of the family code. See Tex. Fam.Code Ann. §§ 107.001(1), .017 (West 2008).

      . For example, unlike other court-appointed attorneys, "an amicus attorney is not bound by the child's expressed objectives of representation.” See Tex. Fam.Code Ann. § 107.005(a) (West 2008). In addition, an amicus attorney may disclose confidential communications between the child and the amicus attorney to the court when the "ami-cus attorney determines that disclosure is necessary to assist the court regarding the best interests of the child.” Id. § 107.005(c) (West 2008). These provisions, among others, allow the amicus attorney to act on the court's behalf to determine the best interests of the child. See id. § 107.001(1); see also O’Connor v. O’Connor, 245 S.W.3d 511, 515 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (trial court “is, in effect, the amicus attorney's client for a limited purpose”).