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 Zeifman 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.
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.
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
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 plaintiff's 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)).
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:
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 Zeifman's causes of action pertain to Nowlin's performance of her duties as amicus attorney and actions taken in that capacity.
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 Nowlin'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.
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 "amicus 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).
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:
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:
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 Zeifman 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:
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:
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 Zeifman 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.
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" Zeifman'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 Zeifman's seventh issue.
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
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 Zeifman's sixth issue.
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.,
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:
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:
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." Lehrmann, supra, § 3.14[1][k]. The policy is particularly applicable to an amicus attorney
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 SAPCR; Nowlin refrained from acting as the amicus attorney going forward. In its order sanctioning Zeifman, the trial court found that "the filing of Plaintiff's 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 SAPCR." The court concluded:
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 SAPCR, 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.