Attorney Fees Award Reversed

We don’t usually cover family law cases here at 600 Commerce, but this one involves the validity of an award of attorney fees as a sanction against the plaintiff. Steven Shilling and Karrie Gough divorced in 2005. The divorce decree included an agreed permanent injunction prohibiting the Ms. Gough from “disclosing” information about her ex-husband’s medical history. Several years later, Mr. Shilling sued his ex-wife for allegedly violating the injunction. After a bench trial, the trial court ruled that Gough had not violated the injunction by discussing Shilling’s medical history with her friend and new husband because they already knew about Shilling’s medical history — hence, Gough had not “disclosed” it to them. The trial court then awarded Ms. Gough $96,000 in attorney fees under both section 9.014 of the Family Code and as sanctions against Shilling for bringing a frivolous and bad faith lawsuit.

After rejecting section 9.014 as the basis for an award of fees — concluding that section only authorizes attorney fees in a suit for enforcement of the division of property, not enforcement of an injunction against speech — the court of appeals turned to the issue of attorney fees as a sanction. Gough’s answer had requested an award of attorney fees and stated that Shilling’s suit was “frivolous and brought for the purposes of harassment only.” The pleading was otherwise silent on the basis for any award of fees, no motion for sanctions was ever filed, and the trial court never issued any order for Shilling to show cause why he should not be sanctioned. Under those circumstances, the court of appeals held that the trial court abused its discretion by awarding fees to Gough under Chapter 10 of the Civil Practice & Remedies Code, which requires either a motion for sanctions or an order to show cause that describes the sanctionable conduct. The court likewise ruled that the attorney fees could not be sustained as a sanction under Rule 13 for filing a case that was “groundless and brought in bad faith,” because it was not self-evident that Ms. Gough’s discussions with her friend and new husband had not “disclosed” new information about Shilling’s medical history. Accordingly, the court of appeals reversed and rendered the attorney fees award.

Shilling v. Gough, No. 05-11-00292-CV