Texas = Judiciary Online

O P I N I O N

=20 Houtex Ready Mix Concrete & Materials (=93Houtex=94) = appeals a=20 summary judgment and two separate sanction awards of attorney=92s = fees in=20 favor of Eagle Construction & Environmental Services, L.P.=20 (=93Eagle=94). = Houtex contends=20 (1) the trial court erred in granting summary judgment, (2) the = trial=20 court abused its discretion in awarding Eagle $1,500 in = attorney=92s fees in=20 the final judgment as a sanction for filing a groundless lawsuit, = and (3)=20 the trial court abused its discretion in awarding Eagle an = additional=20 $2,500 in interim attorney=92s fees as a sanction after vacating = an earlier=20 summary judgment. = We conclude=20 that (1) the trial court properly granted Eagle=92s motion for = summary=20 judgment on Houtex=92s breach of contract and declaratory relief = claims but=20 erred in granting it on Houtex=92s Deceptive Trade Practices Act = (=93DTPA=94)=20 claim, and (2) the $2,500 sanction was within the trial court=92s = discretion=20 but the $1,500 sanction was not. =20 We therefore affirm in part and reverse in=20 part.

Background

=20 In March 2004, Houtex contracted with Eagle for Eagle to = clean up=20 the scene where a Houtex truck had overturned on a freeway in = Harris County. A dispute arose about = performance=20 and payment. In = July 2004,=20 Eagle sued Houtex in an Eastland County Justice of the Peace=20 Court, asserting breach of contract, = fraudulent=20 inducement, fraud, misrepresentation, sworn account, unjust = enrichment,=20 and quantum meruit. = Two=20 months later, Houtex sued Eagle in Harris County Civil Court = at Law No.=20 4 in this case, seeking declaratory relief regarding the same=20 contract. =20

Houtex failed to = answer or=20 appear in the Eastland County = lawsuit. Eagle obtained a default = judgment=20 against Houtex in the justice court. =20 Eagle then moved for summary judgment in this action, = asserting=20 that Houtex=92s claims are barred by res judicata and collateral = estoppel,=20 based on the Eastland County=20 Justice Court judgment. The trial court granted = summary=20 judgment after Houtex failed to appear at the hearing on the = motion. The trial court later = vacated this=20 order, but awarded Eagle $2,500 in attorney=92s fees as a sanction = for costs=20 Eagle incurred in attending the hearing.

Eagle amended its = motion for=20 summary judgment and filed an additional motion for sanctions, = again=20 asserting res judicata and collateral estoppel, and asserting that = this=20 lawsuit is frivolous. = The day=20 before the hearing on the motion, Houtex amended its original = petition,=20 asserting claims for breach of contract and DTPA violations.

The trial court = granted summary=20 judgment to Eagle and awarded it another $1,500 in attorney=92s = fees, as=20 well as appellate attorney=92s fees. =20

Summary=20 Judgment

Standard of=20 Review

Our review of a = summary=20 judgment is de novo. = Provident Life & = Accident Ins. Co.=20 v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). Under the traditional = standard for=20 summary judgment, a movant has the burden to show that no genuine = issue of=20 material fact exists and that the trial court should grant = judgment as a=20 matter of law. = Tex. R. Civ. P. = 166a(c); KPMG Peat Marwick v. = Harrison County = Hous. Fin.=20 Corp., 988 S.W.2d 746, 748 (Tex. 1999). We view all evidence in = a light=20 favorable to the nonmovant and indulge every reasonable inference = in the=20 nonmovant=92s favor. = Provident Life, 128 = S.W.3d at=20 215. A defendant = moving for=20 summary judgment on an affirmative defense must prove each element = of its=20 defense as a matter of law, leaving no issues of material = fact. Garza v. Exel Logistics, = Inc., 161=20 S.W.3d 473, 475 n.10 (Tex. 2005). Res judicata and = collateral=20 estoppel are affirmative defenses. =20 Tex. R. Civ. = P.=20 94.

Res=20 judicata=20 prevents parties and those in privity with them from relitigating = a case=20 that a competent tribunal has adjudicated to finality. =20 Ingersoll-Rand=20 Co. v. Valero Energy Corp., 997=20 S.W.2d 203, 206 (Tex. 1999). = Res judicata bars claims or = defenses that,=20 through diligence, should have been litigated in the earlier suit = but were=20 not. Id. at=20 206=9607. =93The = doctrine is=20 intended to prevent causes of action from being split, thus = curbing=20 vexatious litigation and promoting judicial economy.=94 Id. at=20 207. = Res=20 judicata=20 requires: (1) a prior final judgment on the merits by a court of = competent=20 jurisdiction, (2) identity of parties or those in privity with = them, and=20 (3) a second action based on the same claims that were raised or = could=20 have been raised in the first action. Amstadt v. U.S. Brass = Corp., 919=20 S.W.2d 644, 652 (Tex. 1996); see also Jones v. First Bank = of=20 Anson, 846 S.W.2d 107, 110 (Tex. App.=97Eastland 1992, no = writ) (holding=20 that default judgment can be used to assert res = judicata);=20 Mendez=20 v. Haynes Brinkley & Co.,=20 705 S.W.2d 242, 245=9646 (Tex. App.=97San Antonio 1986, writ = ref=92d n.r.e.)=20 (applying collateral estoppel after default = judgment ). =20

A=20 party asserting collateral estoppel must establish that (1) the = facts=20 sought to be litigated in the second action were fully and fairly=20 litigated in the first action, (2) those facts were essential to = the=20 judgment in the first action, and (3) the parties were cast as = adversaries=20 in the first action. =20 John G. = &=20 Marie Stella Kenedy Mem=92l Found. v. Dewhurst, 90=20 S.W.3d 268, 288 (Tex.=20 2002).

Judgments=20 from justice courts, however, are not accorded the same common law = finality as judgments from other courts. Rather, section 31.005 = of the=20 Texas Civil Practice and Remedies Code abrogates the general = common law=20 rules of res judicata and collateral estoppel for justice courts = and small=20 claims courts. See Harrill v. A.J.=92s = Wrecker Serv.,=20 Inc., 27 S.W.3d 191, 195 (Tex. App.=97Dallas 2000, pet. = dism=92d w.o.j.);=20 Brown v. Henderson,=20 941=20 S.W.2d 190, 192 (Tex. App.=97Corpus Christi 1996, no=20 writ). The statute provides:=20

A=20 judgment or a determination of fact or law in a proceeding in = small claims=20 court or justice of the peace court is not res judicata and does = not=20 constitute a basis for estoppel by judgment in a proceeding in a = county=20 court or statutory county court, except that the judgment rendered = is=20 binding on the parties thereto as to recovery or denial of = recovery. =

Tex.=20 Civ. Prac. & Rem. Code Ann.=20 =A7 31.005 (Vernon 1997).=20 Texas = courts have=20 interpreted this statute to mean that the doctrines of res = judicata and=20 collateral estoppel only bar claims =93actually litigated=94 in = courts of=20 limited jurisdiction.[1] Brown, 941 S.W.2d at = 192; Wren=20 v. Gusnowski, 919=20 S.W.2d 847, 849 (Tex. App.=97Austin 1996, no writ); see also Webb v.=20 Persyn, 866 = S.W.2d=20 106, 107 (Tex. App.=97San Antonio 1993, no writ). The purpose of section = 31.005 =93is=20 to narrow the preclusive effect of judgments from courts of = limited=20 jurisdiction.=94 Brown, 941 S.W.2d at = 192.=20 The statute =93creates an = exception=20 to the general rule against splitting causes of action, allowing=20 unlitigated claims from courts of limited jurisdiction to be tried = in=20 county courts.=94 = Id. Thus, if the pleadings = here=20 include claims not adjudicated in the justice court, then res = judicata and=20 collateral estoppel do not bar those pleaded claims, and Eagle=92s = affirmative defenses do not support summary judgment on them. See id.

Analysis

Houtex contends that = its=20 petition contains breach of contract and DTPA claims that were not = litigated in the Eastland=20 County Justice Court. Eagle responds that = Houtex=92s=20 amended petition=97asserting new breach of contract and DTPA = claims=97was not=20 timely filed and therefore the trial court properly disregarded = it.

The Texas Rules of = Civil=20 Procedure prohibit the filing of any pleadings, responses, or = pleas within=20 seven days of trial, unless a party first obtains leave of the = court. Tex. R. Civ. P. = 63. The trial court must = grant leave=20 to file unless the opposing party shows surprise. Id. A summary judgment = hearing is a=20 trial for the purposes of Rule 63. =20 Goswami=20 v. Metro. Sav. & Loan Ass=92n,=20 751 S.W.2d 487, 490 (Tex. 1988). =93Texas=20 courts have held that in the absence of a sufficient showing of = surprise=20 by the opposing party, the failure to obtain leave of court when = filing a=20 late pleading may be cured by the trial court=92s action in = considering the=20 amended pleading.=94 = Id.

Houtex never = requested leave to=20 file its amended pleading and the record does not indicate that = the trial=20 court granted leave. = Neither=20 did the trial court refuse=20 leave, nor did Eagle move to strike Houtex=92s amended = petition. Because the record = contains no=20 basis upon which to conclude that the trial court refused to = consider=20 Houtex=92s amended pleadings, and inasmuch as Eagle did not show = surprise or=20 prejudice, we presume the trial court granted leave. See id. (holding that = appellate court=20 should presume trial court granted leave to file amended petition = when=20 record contains no basis to conclude that trial court did not = consider=20 amended petition). =20 We therefore conclude that Houtex=92s breach of contract = and DTPA=20 claims were properly before the trial court when it granted = Eagle=92s=20 amended motion for summary judgment. =20

The = parties in=20 the Eastland = County suit are the same as the = parties in this=20 suit, and Eagle raised the breach of contract claim in the = Eastland County = suit. Thus, the doctrine of = res judicata=20 and section 31.005 of the Texas Civil Practice and Remedies Code = bar=20 Houtex=92s breach of contract claim, and its contract-dependent = request for=20 declaratory relief. See = Tex.=20 Civ. Prac. & Rem. Code Ann.=20 =A7 31.005; Amstadt, = 919 S.W.2d=20 at 652.

The trial court, = however, erred in=20 granting Eagle=92s motion for summary judgment on Houtex=92s DTPA = claim.=20 Res judicata would = usually bar=20 Houtex=92s DTPA claim because (1) there was a prior final judgment = on the=20 merits in the first action, (2) the parties to both actions are = the same,=20 and (3) the second action is based on claims that could have been = raised=20 in the first action. = See Amstadt,=20 919 S.W.2d at 652. =20 In=20 this case, however, section 31.005 limits the applicability of res = judicata. = Tex.=20 Civ. Prac. & Rem. Code Ann.=20 =A7 31.005. Neither = Eagle=20 nor Houtex asserted DTPA claims in the Eastland = County = action. Because the parties did = not=20 =93actually litigate[]=94 any DTPA claims in the Eastland County = Justice=20 Court, Houtex was free to assert a DTPA claim in this=20 case.[2]=20 See=20 Brown,=20 941 S.W.2d at 192; Wren, 919 S.W.2d at = 849. The doctrine of = collateral=20 estoppel does not prevent Houtex from asserting its DTPA claim in=20 Harris County for = the same=20 reason. See=20 Brown,=20 941 S.W.2d at 192; Wren, 919 S.W.2d at = 849. The trial court = therefore erred in=20 granting Eagle=92s motion for summary judgment on Houtex=92s DTPA = claim. =

Sanction Award of = $1,500 in=20 Attorney=92s Fees in the Final Judgment

In its second issue, = Houtex=20 contends the trial court abused its discretion in awarding Eagle = $1,500 in=20 attorney=92s fees in the final judgment. Eagle responds that the = trial=20 court did not abuse its discretion in awarding the sanction = because Houtex=20 filed the Harris County = action=20 knowing that it was frivolous, in violation of Texas Rule of Civil = Procedure 13. Tex. R. Civ. P.=20 13.

Filing a frivolous = lawsuit is=20 litigation misconduct subject to sanction under Rule 13. Id.; Am. Transitional Care Ctrs. = of=20 Tex., Inc. v. Palacios, 46 = S.W.3d=20 873, 878 (Tex. 2001). If=20 a sanction order refers to a specific rule, either by citing the = rule,=20 tracking its language, or both, we determine whether the sanction = is=20 appropriate under that particular rule. Finlay v. = Olive, 77 S.W.3d 520, 524=20 (Tex. App.=97Houston [1st Dist.] 2002, no=20 pet.). = In this=20 case, the trial court=92s sanction order does not specify the rule = used to=20 sanction Houtex, nor does it track the language of any rule. Eagle, however, only = urged Rule 13=20 as a basis for the sanction award, so we presume the trial court=20 sanctioned Houtex under Rule 13. =20

We=20 review a trial court=92s Rule 13 sanction award for abuse of discretion. Downer v. Aquamarine = Operators,=20 Inc., 701 = S.W.2d 238,=20 241=9642 (Tex. 1985); Barkhausen=20 v. Craycom, Inc.,=20 178 S.W.3d 413, 420=9621 (Tex. App.=97Houston=20 [1st Dist.] 2005, pet. denied);=20 Gaspard v. Beadle,=20 36 S.W.3d 229, 239 (Tex. App.=97Houston [1st Dist.] 2001, pet.=20 denied). Our test = for abuse=20 of discretion is whether the trial court acted without reference = to any=20 guiding rules and principles. =20 Alpert v. Crain, = Caton &=20 James, P.C., 178 S.W.3d 398, 410 (Tex. App.=97Houston = [1st Dist.]=20 2005, pet. denied). = We=20 examine the entire record and will overturn a trial court=92s = discretionary=20 ruling only if the ruling is based on an erroneous view of the law = or a=20 clearly erroneous assessment of the evidence. See Mercedes-Benz = Credit Corp.=20 v. Rhyne, = 925 S.W.2d=20 664, 666 (Tex. 1996); Downer, 701 S.W.2d at = 241=9642. =

Texas=20 Rule of Civil Procedure 13 provides for sanctions if a party files = a=20 pleading that is =93groundless and=20 brought in bad faith or groundless and brought for the purpose of=20 harassment.=94 Tex. R. Civ. P. = 13. = =93Groundless=94 means=20 no basis in law or fact and not warranted by a good faith argument = for the=20 extension, modification, or reversal of existing law. Id. Rule 13 requires the = trial court=20 to hold an evidentiary hearing to make the necessary factual=20 determinations about the motives and credibility of the person = signing the=20 allegedly groundless petition. =20 Bisby v. Dow Chem. Co., 931 S.W.2d 18, 21 = (Tex.=20 App.=97Houston [1st Dist.] 1996, no writ). In evaluating an = allegation of a=20 Rule 13 violation, =93[c]ourts shall presume that pleadings, = motions, and=20 other papers are filed in good faith.=94 Tex. R. Civ. P. = 13. The party seeking = sanctions bears=20 the burden of overcoming the presumption of good faith in the = filing of=20 pleadings. GTE = Commc=92ns=20 Sys. Corp. v. Tanner,=20 856 S.W.2d 725, 731 (Tex. 1993) (orig. = proceeding). A court may not impose = sanctions=20 under Rule 13 =93except for good cause, the particulars of which = must be=20 stated in the sanction[] order.=94 =20 Id. at 730. =93A trial court=92s = failure to=20 specify the good cause for sanctions in a sanction order may be an = abuse=20 of discretion.=94 =20 Gaspard, 36=20 S.W.3d at 239. =20

The = purposes of=20 the Rule 13 particularity requirement are to (1) ensure that the = trial=20 court is held accountable and adheres to the standard of the rule; = (2)=20 require the trial court to reflect carefully on its order before = imposing=20 sanctions; (3) inform the offending party of = the=20 particular conduct warranting sanction, for = the=20 purpose of deterring similar conduct in the future; and (4) enable = the=20 appellate court to review the order in = light of the=20 particular findings made by the trial court. Alpert,=20 178 S.W.3d at 411. =20 =93In reviewing sanction[] orders, the = appellate courts=20 are not bound by a trial court=92s findings of fact and = conclusions of law;=20 rather, appellate courts must independently review the entire = record to=20 determine whether the trial court abused its discretion.=94 Am. Flood Research, Inc. v. = Jones,=20 192 S.W.3d 581, 583 (Tex. 2006);=20 see also Barkhausen,=20 178 S.W.3d at 421. =

In=20 this case, the trial court included the sanction order in the = final=20 judgment, but failed to specify any particular grounds for = ordering the=20 sanction, as Rule 13 requires. =20 Tex. R. Civ. = P.=20 13; Alpert,=20 178 S.W.3d at 411. = The trial=20 court did not file any findings of fact and conclusions of law, = and did=20 not conduct an evidentiary hearing on the motion for = sanctions. In addition, = Houtex=20 asserted three causes of action in this lawsuit: (1) a request for = declaratory relief, (2) a breach of contract claim, and (3) a DTPA = claim. We have = determined=20 that the trial court=92s summary judgment on Houtex=92s DTPA claim = was=20 improper. We = therefore=20 conclude that the record does not support a finding that = Houtex=92s petition=20 is =93groundless=94 as defined by Rule 13. Tex. R. Civ. P. = 13. We hold that the trial = court=20 abused its discretion in ordering sanctions against Houtex under = Rule=20 13.

Interim Sanction = Award of=20 $2,500 in Attorney=92s Fees

In its third issue, = Houtex=20 contends the trial court abused its discretion in awarding Eagle = $2,500 in=20 interim attorney=92s fees as a sanction after it vacated an = earlier summary=20 judgment in this case. = Eagle=20 responds that the $2,500 sanction is proper because Houtex=92s = counsel=20 failed to notify the court or opposing counsel that he would not = attend=20 the hearing on Eagle=92s first motion for summary judgment, = causing Eagle=92s=20 counsel to travel 720 miles round trip to attend the=20 hearing.

Eagle served Houtex = with its=20 first motion for summary judgment and for sanctions on November = 12,=20 2004. The court set = a hearing=20 on the motion for December 7, 2004, at 9:30 a.m. On December 6, Eagle = filed its=20 amended motion for summary judgment and for sanctions. Counsel for Houtex = allegedly=20 appeared in court at 8:15 a.m. on the morning of December 7 to = inform the=20 judge that he would not be able to attend the hearing because he = had a=20 trial in Montgomery County at = the same=20 time. Houtex=92s = counsel=20 asserts that the court clerk told him that the case was not set = for=20 hearing on December 7.[3] Counsel for Houtex = admits that he=20 did not attempt to notify Eagle=92s counsel that he was not going = to attend=20 the hearing. = Eagle=92s counsel=20 therefore made the trip from Eastland County to Harris = County, = only to find=20 that Houtex was not present. =20

Counsel for Houtex = asserts that=20 he was under no obligation to notify Eagle that he would not = attend the=20 summary judgment hearing because Rule = 10 of the=20 Regional Rules of Administration for the Second Administrative = Judicial=20 Region of Texas requires Harris = County = courts to=20 defer to cases in trial. = Rule=20 10 states:

a. Attorney already in = trial in=20 another Court.

(1) =20 When informed that an = attorney is=20 presently in trial, the Court will determine where and when = assigned. This information will be = verified=20 upon request of opposing counsel. =20 The case will be placed on hold or reset, depending upon = when the=20 attorney will be released.

(2) =20 If the attorney is not = actually in=20 trial as represented by the attorney or agent, the case will be = tried=20 without further notice.

b. Attorney assigned to two Courts for = the same=20 date:

(1) =20 It = is the=20 duty of the attorney to call the affected Judge=92s attention to = all dual=20 settings as soon as they are known.

Reg.=20 R. Admin., 2d Admin. Jud. Reg.=20 10, available at=20 = http://www.co.montgomery.tx.us/dcourts/2ndadmin/RegionalRulesofAdministra= tion.pdf.=20 This rule places the = burden on=20 the attorney to contact the court if he has a conflicting trial=20 setting. In this = case,=20 Houtex=92s counsel contends that he attempted to comply with Rule = 10 by=20 contacting the court clerk on the morning of the hearing and = informing her=20 that he would not attend the hearing on the motion for summary = judgment=20 because he was in trial in Montgomery=20 County.

The trial court = granted Eagle=92s=20 motion for summary judgment at the December 7 hearing. The court subsequently = vacated=20 this order at Houtex=92s request, but entered a sanction awarding = Eagle=20 $2,500 in attorney=92s fees. =20 The trial court=92s sanction order does not refer to the = specific=20 source of power used to issue the sanction, nor did the trial = court make=20 factual findings to support the order. Because the conduct at = issue does=20 not involve discovery proceedings or the content of a pleading, = the trial=20 court=92s inherent power appears to be the source of power for its = sanction. See Kings Park Apartments, Ltd. = v. Nat=92l=20 Union Fire Ins. Co., = 101=20 S.W.3d 525, 541 (Tex. App.=97Houston [1st Dist.] 2003, pet.=20 denied).

=93Texas courts have the inherent = power to=20 sanction for an abuse of the judicial process that may not be = covered by=20 any specific rule or statute.=94 =20 Island Entm=92t, = Inc. v.=20 Castaneda, 882 S.W.2d 2, 5 (Tex. App.=97Houston [1st Dist.] = 1994, writ=20 denied). Inherent power to sanction exists to the = extent=20 necessary to deter, alleviate, and counteract bad faith abuse of = the=20 judicial process. = Id. In applying its = inherent=20 power to impose sanctions, a trial court must make findings to = support its=20 conclusion that the conduct complained of significantly interfered = with=20 the court=92s legitimate exercise of its core functions. =20 Id. In=20 reviewing sanction orders, however, appellate courts should = independently=20 review the entire record to determine whether the trial court = abused its=20 discretion. Am. Flood Research, 192 = S.W.3d at=20 583.

=20 Here, in Eagle=92s response = to Houtex=92s=20 motion to vacate, Eagle requests =93any further relief to which it = is justly=20 entitled,=94 should the trial court vacate the judgment. Eagle supported its = response with=20 an affidavit stating the facts surrounding the December 7 hearing, = and the=20 amount of costs incurred and time spent attending the = hearing.

=20 The affidavit of Eagle=92s counsel contains sufficient = evidence upon=20 which the trial court could have concluded that Houtex=92s counsel = acted in=20 bad faith in failing to notify opposing counsel that he would be = absent=20 from the December 7 hearing. =20 The affidavit states that Houtex=92s counsel received = notice of the=20 December 7 hearing, which was confirmed by the trial court orally = during=20 another hearing on November 23. =20 Eagle=92s counsel also reviewed the court=92s file on the = morning of=20 December 7, and confirmed that the hearing was set on the = court=92s=20 docket. Houtex=92s = counsel had=20 known about the Montgomery=20 County = trial setting=20 since October 5, yet he never raised the potential conflict. Houtex=92s counsel also = knew Eagle=92s=20 counsel would be driving from Eastland to attend the Harris County = hearing, but he made no effort to inform him that he might not be=20 available to attend, nor did he attempt to inform him when he = learned=20 definitively that he would not be there.

Eagle=92s counsel=20 presented evidence that his total expenses incurred in attending = the=20 December 7 hearing were $3,901. =20 Specifically, the = affidavit=20 stated:

I have spent 18 hours in traveling and = attending=20 the properly Noticed hearing on Defendant=92s Motion for Summary = Judgment=20 and preparing a response to Plaintiff=92s Motion to Vacate. The reasonable = attorneys=92 fees for=20 such activities is $3,600.00 (18 hours @ $200.00/hour) plus = $301.00 in=20 travel expenses and meals in attending the hearing. Further, I was required = to retain=20 outside counsel on behalf of Defendant to appear and orally = respond to=20 Plaintiff=92s Motion to Vacate. =20 This has caused additional unnecessary=20 expense.

By entering the = sanction for=20 Eagle in the amount of $2,500, the trial court implicitly found = that=20 Houtex=92s counsel should have attempted to inform opposing = counsel of his=20 conflicting trial setting. = The facts in this case show that Houtex=92s counsel was = aware of the=20 conflicting trial setting many days before the hearing, and that = Eagle=92s=20 counsel had to travel a significant distance to attend the = hearing. We therefore hold that = the record=20 contains sufficient evidence to support the sanction award. See Am. Flood=20 Research,=20 192 S.W.3d at 583; see also=20 McWhorter v.=20 Sheller, 993 S.W.2d = 781, 789=20 (Tex. App.=97Houston [14th Dist.] 1999, pet. denied) (reversing = sanction=20 award because record contained no evidence that attorney acted in = bad=20 faith, or that her conduct interfered with one of court=92s core=20 functions); Onwuteaka v. = Gill, 908 S.W.2d 276, 281 = (Tex.=20 App.=97Houston [1st Dist.] 1995, no writ) (reversing trial = court=92s sanction=20 order because record contained no evidence attorney acted in bad = faith=20 when he was late to trial);=20 Island Entm=92t, 882 S.W.2d at 5=966 (reversing sanction award = because=20 record contained no evidence that = counsel acted=20 in bad faith or interfered with trial court=92s core functions); = Lawrence v. = Kohl, 853 S.W.2d 697, 700 = (Tex.=20 App.=97Houston [1st Dist.] 1993, no writ) (holding trial court did = not abuse=20 its discretion in sanctioning attorney for refusal to help rectify = erroneous order). = While the=20 trial court erred in failing to make findings to support its = sanction=20 award, the error here does not require reversal because the record = contains sufficient evidence to support the trial court=92s = sanction award,=20 Houtex had notice of the nature of the conduct about which Eagle=20 complained, and the sanction order corresponds to the amount = sought for=20 the offending conduct.

=20 We also note that in Eagle=92s response to Houtex=92s = motion to vacate=20 the summary judgment, Eagle requested that the trial court not = grant=20 Houtex=92s motion to vacate the summary judgment. The $2,500 sanction is = therefore a=20 lesser penalty than Eagle requested, and a concession to Eagle for = the=20 trial court=92s grant of Houtex=92s motion. See Onwuteaka, 908 S.W.2d at 281 (=93Before a trial court may=20 impose the =91death penalty=92 sanction, the record=20 must reflect that the court considered the=20 availability of a lesser sanction and whether = such a sanction=20 would fully promote compliance with the purpose for imposing the = sanction.=94). The trial court did not = abuse its=20 discretion in awarding Eagle the $2,500=20 sanction.

Conclusion

=20 We hold that the trial court (1) properly granted summary = judgment=20 on Houtex=92s breach of contract and declaratory relief claims, = (2) erred in=20 granting summary judgment on Houtex=92s DTPA claim, (3) abused its = discretion in ordering sanctions against Houtex under Rule 13 for = filing a=20 groundless lawsuit, and (4) did not abuse its discretion in = ordering the=20 sanction against Houtex for its counsel=92s failure to notify = opposing=20 counsel that he would not be attending the summary judgment = hearing. We therefore affirm the = trial=20 court=92s judgment with regard to Houtex=92s breach of contract = and=20 declaratory relief claims. = We=20 also affirm the trial court=92s interim sanction order of = $2,500. We reverse the trial = court=92s=20 judgment with regard to Houtex=92s DTPA claim and the Rule 13 = sanction=20 order, and remand for further proceedings.

&nbs= p; = ; = &= nbsp; =20 Jane Bland

&nbs= p; = ; = &= nbsp; =20 Justice

Panel consists of = Chief Justice=20 Radack and Justices Alcala and Bland.