Affirmed as Modified and Majority and =
Concurring=20
Opinions filed January 15, 2008.
In The
Fourteenth=20
Court of Appeals
_______________
NO. 14-06-00364-CV
_______________
JOSE THOTTUMKAL and
SARAMMA THOTTUMKAL, =
Appellants
V.
LARRY McDOUGAL, Appellee
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; =20
On Appeal from the 268th District=20
Court
Fort Bend County, Texas
Trial Court Cause No. =
05-CV-142505
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C O N C U R R I N G O P I N =
I O=20
N
Regarding the=20
Thottumkals=3D contention that =
McDougal had=20
the burden to prove a lack of due diligence on their part, section =
10.002(c) provides:
The court may award =
to a party=20
prevailing on a motion under this section the reasonable expenses =
and=20
attorney=3Ds fees incurred in =
presenting=20
or opposing the motion, and if no due diligence is shown the =
court may=20
award to the prevailing party . . . out of pocket expenses =
incurred or=20
caused by the subject litigation.
Tex. Civ. Prac. & =
Rem. Code=20
Ann. ' 10.002(c) (emphasis=20
added). The parties have cited, and we have found, no Texas =
appeals=20
court opinion addressing which party has the burden of proof under =
section=20
10.002(c) on the issue of due diligence.
Section 10.002(a) =
allows a=20
party to move for sanctions based on a violation of section 10.001 =
alone. Section 10.002(c), quoted above, then essentially =
allows a=20
greater sanction to be imposed if no due diligence is shown. =
The=20
Thottumkals=3D interpretation of =
this=20
provision would treat a showing of no due diligence as an =
additional=20
violation or element that must be proved by the movant, =
i.e., in=20
addition to a violation of an express provision of section 10.001 =
(such as=20
pleading a claim that a reasonable inquiry would have disclosed to =
be=20
groundless). However, no provision of Chapter 10 refers to a =
violation of anything other than section 10.001, and that section =
does not=20
include, or refer to, a lack of due diligence. Under these=20
circumstances, the due diligence standard is not an additional =
violation=20
or element, but, instead, a type of exemption or safe harbor, =
which allows=20
a nonmovant to reduce the scope of the sanctions that can =
potentially be=20
imposed if the nonmovant shows that his violation of section =
10.001=20
occurred despite (i.e., rather than because of) his exercise of =
due=20
diligence.
/s/ =20
Richard H. Edelman
Senior Justice
Judgment rendered and =
Majority=20
and Concurring Opinions filed January 15, 2008.
Panel consists of =
Chief Justice=20
Hedges and Justices Fowler and Edelman.
=20
The Thottumkal=3Ds post-argument brief cites the =
statement in=20
Low, that the party seeking sanctions bears the burden of=20
overcoming the presumption of good faith, as meaning that McDougal =
had the=20
burden to show a lack of due diligence. See 221 =
S.W.3d at=20
614. However, that statement in Low refers to the =
good faith=20
standard in Texas Rule of Civil Procedure 13, which does not =
pertain to=20
the due diligence or other standards set forth in sections 10.001 =
or=20
10.002 of the Civil Practice and Remedies Code. Moreover,=20
notwithstanding section 22.004 of the Texas Government Code, the =
Texas=20
Supreme Court may not amend or adopt rules that are in conflict =
with=20
Chapter 10 of the Civil Practice and Remedies Code. Tex. =
Civ. Prac.=20
& Rem. Code Ann. ' 10.006.
=20
Senior justice Richard H. Edelman sitting by=20
=
assignment. |