Opinion
05-21-00659-CV
07-07-2023
ROBERT D. SMITH, Appellant v. MLC CAVALLI, LLC, Appellee
On Appeal from the 14th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-21-01611
Before Justices Molberg, Partida-Kipness, and Carlyle
MEMORANDUM OPINION
KEN MOLBERG JUSTICE
In three issues, appellant Robert D. Smith challenges the trial court's judgment in favor of appellee MLC Cavalli, LLC, dismissing Smith's suit on a promissory note and awarding attorney's fees and costs against him as sanctions. For the reasons given below, we affirm the trial court's dismissal of Smith's suit on the note claim but reverse the award of attorney's fees and costs as sanctions.
Background
On February 2, 2021, Smith brought suit against Cavalli, alleging Cavalli defaulted on a promissory note and a balance of $53,246.73 was due and owing. Smith alleged he loaned $47,113 to Cavalli at a rate of eight percent interest per annum pursuant to a promissory note that became effective November 20, 2018. All accrued but unpaid interest on the principal balance outstanding was due and payable on March 25, 2019, June 17, 2019, September 9, 2019, December 30, 2019, March 23, 2020, June 15, 2020, and September 7, 2020. Smith alleged Cavalli agreed under the note to pay the outstanding principal balance and any unpaid interest in full by November 17, 2020. He alleged Cavalli made the first two interest payments but afterwards failed to pay as agreed, and that $47,113 in principal and $6,113.73 in interest was due and owing.
Cavalli answered with a general denial and asserted several affirmative defenses. In a verified denial, Cavalli also denied the execution of the alleged promissory note. In an attached affidavit, Cavalli president Michael LaFerney stated he could not locate an executed note, did not recall executing the alleged note, and no other person had been authorized to execute such a note on behalf of Cavalli. However, LaFerney stated he had a copy of an unexecuted draft promissory note that included a clause stating that repayment of the note was subordinated to Cavalli's indebtedness to BTH Bank, N.A., which had to give its permission for interest and principal payments to be made under the note. LaFerney stated that condition precedent had not been satisfied, as BTH declined permission for Cavalli to make any payments given Cavalli's financial situation. Cavalli also, in its answer, specifically denied the condition precedent to any payment obligation had occurred. Finally, Cavalli demanded Smith be ordered to pay its reasonable and necessary attorney's fees and costs under rule 13 of the rules of civil procedure because, it argued, Smith's suit was groundless with no basis in law or fact and was brought in bad faith or for the purpose of harassment.
On April 9, 2021, Smith filed a first amended petition in which he alleged a fraud cause of action against LaFerney for the first time. Smith alleged LaFerney, acting through Cavalli, ran a pizza restaurant and asked Smith to loan money to Cavalli through a subordinated note. On November 12, 2018, LaFerney sent Smith the promissory note for his signature; Smith signed on November 20, 2018, and he wired $47,113 to Cavalli. Smith alleged LaFerney never countersigned the note, and he alleged it "was now clear that LaFerney had a plan from the start to avoid paying the note." LaFerney repeatedly rebuffed requests for payment, Smith alleged, by referring to a provision of the note permitting repayment only as allowed by BTH. Smith alleged LaFerney's representations that BTH would not authorize Cavalli to make payments under the subordinated note were false. As stated above, Smith alleged fraud against LaFerney in addition to the suit on a note against Cavalli.
Smith contemporaneously filed a motion for partial summary judgment, arguing LaFerney's course of conduct demonstrated assent to the note's terms and that the senior lender had approved payment.
Cavalli and LaFerney filed a motion for partial summary judgment on April 22, 2021. They argued Cavalli was restricted from paying on the note because BTH denied its requests to do so, and further, the note was not signed by Cavalli.
On May 6, 2021, in his second amended petition, in addition to the above, Smith added claims for negligent misrepresentation, unjust enrichment, and money had and received against both Cavalli and LaFerney. On June 3, 2021, in a third amended petition, Smith added a breach of contract claim against Cavalli.
On May 20, Cavalli and LaFerney filed an amended motion for summary judgment, reiterating their prior argument that the note being sued on was unsigned and contained a condition precedent that had not occurred.
On July 8, 2021, Smith nonsuited his claims against LaFerney. The trial court dismissed those claims without prejudice.
The trial court held a hearing on the parties' motions for summary judgment on June 10, 2021. Afterwards, the court did not enter a summary judgment but instead set the case for bench trial to be held the next month.
At trial, Smith testified he invested $100,000 in Cavalli and he later loaned Cavalli "roughly $47,000" at LaFerney's request. Smith introduced into evidence the promissory note LaFerney sent him for his signature. According to the note, Cavalli promised to pay Smith $47,113 plus interest. Accrued but unpaid interest on the principal was due and payable on March 25, 2019, June 17, 2019, September 9, 2019, December 30, 2019, March 23, 2020, June 15, 2020, and September 7, 2020. The outstanding principal balance and all accrued but unpaid interest was due and payable in full on November 17, 2020. In the event of uncured default for ten or more days after Smith had given written notice of default, the entire unpaid amount of the note, including interest, was due and payable.
The note also included a subordination clause. It stated:
Each of [Cavalli] and [Smith] hereby acknowledges and agrees that repayment of this Note is unsecured and subordinated in all respects to the indebtedness, obligations and liabilities, whether now or in the future existing, of [Cavalli] to BTH Bank, N.A. and its successors and assigns ("Senior Lender"). Interest and principal payments on this Note shall only be made by [Cavalli] to [Smith] as permitted by the Senior Lender, which could mean that no payments shall be made hereunder unless and until all indebtedness, obligations and liabilities, whether now or in the future existing, of [Cavalli] to Senior Lender have been paid in full and Senior Lender has no further commitment or obligation to [Cavalli].
Smith testified that, prior to filing suit, he contacted the senior lender, BTH, on multiple occasions to let them know he expected to be paid on the note. He said he "requested their approval to be paid on the note," and later "requested that approval which they gave me in writing." Smith referred to Plaintiff's Exhibit 11, an e-mail from BTH loan officer Lauren Wheeler that was not offered into evidence, in saying Wheeler gave approval from the bank "to consent [to] payment on the note."
Smith said Cavalli made the first two interest payments late. Smith decided to "stop chasing down interest payments" and waited until the end of the note to pursue additional payments. Cavalli failed to make the principal payment at the end of the note. Smith testified $55,000 was due on the note.
During cross-examination of Smith, Cavalli offered into evidence a March 30, 2021, e-mail from Wheeler stating BTH would "consider repayment of amounts due under the subordinated promissory note," but that "[s]pecific approval will be contingent upon receipt of a request from [Cavalli] outlining amount of requested payment and any other relevant details." Smith's response e-mail, admitted as another exhibit, stated, "'Consider' doesn't work. Can you please answer my request for approval to be paid under the terms of the note? Happy to jump on a call." In response, Wheeler e-mailed she was "happy to visit tomorrow."
Despite these e-mails, Smith testified Wheeler had already approved repayment, prior to March 30. But Smith acknowledged Wheeler did not state in the e-mail that BTH had already approved repayment. Cavalli confronted Smith with his deposition testimony, where he stated he did not recall what Wheeler said in conversations that took place around March 9.
Cavalli also offered into evidence an October 11, 2019, e-mail written by LaFerney to Smith stating, "The Senior Lender has confirmed that it would not authorize MLC Cavalli to make any repayments under the Subordinated Promissory Notes for Q3 given its current assessment of our financials." In an April 9, 2021, email, Wheeler informed LaFerney that "BTH Bank does not authorize Cavalli to pay the requested $338,927.95 in subordinated indebtedness."
Smith testified he was aware Cavalli had other debts subordinated to the BTH debt. He stated he never made any agreements with Cavalli or any other subordinated debtholders to become senior to them. Furthermore, he understood Cavalli still had outstanding debt to BTH. But he denied that, prior to the lawsuit, Cavalli had informed him BTH had not approved further payments on his subordinated debt.
Finally, Smith offered the deposition testimony of Wheeler. She testified, in pertinent part, that the outstanding balance owed on the senior debt to BTH was about $100,000; the original debt was $1.4 million. About six payments remained. Wheeler said BTH had the ability to prevent payment on Smith's subordinated note for a variety of reasons, but it was typical for BTH to consider a debtor's capacity to pay senior debt and a subordinated debt while maintaining a certain debt service coverage ratio. She stated Cavalli's debt service coverage ratio was not compliant, which she said needed to be a minimum "1.25x ratio."
Wheeler said she did not remember any requests from Cavalli to pay only Smith. Instead, Cavalli referred to all of the subordinated indebtedness in seeking the bank's approval. She stated she had not received any requests from Cavalli's junior lenders other than Smith, but she said requests should not be made to her but to Cavalli or LaFerney. Wheeler further testified that Smith was not senior to any other Cavalli lenders but instead had the same status as other subordinated lenders.
Wheeler testified about an e-mail she sent to Smith in response to his request for BTH's authorization to be paid $47,113. She stated in the March 30, 2021, e-mail that BTH would approve such a payment, subject to a request from Cavalli. Wheeler testified that, at that time, if Cavalli had requested to pay Smith, it would have been approved given Cavalli's liquidity position. But she testified that a request from Smith "wasn't really a valid request." Later in her testimony, she said her affirmative response to Smith was "speculative" because the request was improper- it needed to come from Cavalli. A proper request, Wheeler said, further must include current financial information. When Smith sought her approval, he did not provide Cavalli's current financial information, so Wheeler said she was unable to properly examine Cavalli's financial position.
Wheeler said Cavalli never requested to repay only the sum owed to Smith, but instead requested authorization to pay the full amount of the subordinated indebtedness. Wheeler did not recall any requests from Cavalli to make the two interest payments it previously made to Smith. Wheeler also testified that no other junior lenders were guarantors of Cavalli's senior debt owed to BTH.
LaFerney testified at trial that BTH had never approved Cavalli to pay its subordinated debt. LaFerney e-mailed Smith on October 11, 2019, telling him that the "Senior Lender has confirmed that it would not authorize MLC Cavalli to make any repayments under the Subordinated Promissory Notes for Q3 given its current assessment of our financials." LaFerney then e-mailed Wheeler, telling her he informed Smith "of the fact that the loan payment would not be approved at this time by BTH." In response, Wheeler told LaFerney that BTH's approval of paying subordinated interest payments is contingent on Cavalli's debt service coverage ratio; as of July 15, 2019, the ratio was 0.70x, which was below the 1.25x minimum.
LaFerney stated Cavalli intended to pay the subordinated promissory note when permitted to do so under the terms of the note. He said the two loans from BTH remained outstanding, and Cavalli had been making payments on them. LaFerney testified he made multiple requests for BTH to approve payment of Cavalli's subordinated debts, but each time BTH informed him such payments were not approved given that Cavalli's debt service coverage ratio was noncompliant. LaFerney acknowledged he never requested BTH to authorize payments to Smith alone. The trial court entered a final judgment on July 20, 2021, finding against
Smith and dismissing his claims for suit on a note, negligent misrepresentation, unjust enrichment, money had and received, and breach of contract. The court also found in favor of Cavalli on its claim for attorney's fees and costs under rule 13, finding that the lawsuit,
including his Original Petition, First Amended Petition, and Second Amended Petition, was groundless with no basis in law or fact and also was brought in bad faith and/or for the purpose of harassment. The Court measures Plaintiff's conduct at the time the relevant pleadings were signed. The Court finds that Plaintiff knew the subordinated promissory note was not due and payable and enforceable against Defendant at the time he filed suit.
The court awarded Cavalli $90,016.84 in fees and costs against Smith as "an appropriate sanction." This appeal followed.
Discussion
On appeal, Smith argues the trial court erred in (1) dismissing his claim on the note; (2) finding his claims were groundless and brought in bad faith or for the purpose of harassment; and (3) awarding Cavalli attorney's fees in an amount greater than requested.
Standard of Review
When findings of fact and conclusions of law are not requested following a bench trial, all fact findings necessary to support the trial court's judgment are implied. Shields Ltd. P'ship v. Bradberry, 526 S.W.3d 471, 480 (Tex. 2017). The trial court's implied findings of fact have the same weight as a jury verdict. Wyde v. Francesconi, 566 S.W.3d 890, 894 (Tex. App.-Dallas 2018, no pet.). Implied findings may be challenged on factual and legal insufficiency grounds in the same manner as jury findings or a trial court's express findings of fact if the reporter's record is filed on appeal, as it was here. Shields Ltd. P'ship, 526 S.W.3d at 480.
In reviewing a legal sufficiency challenge to the evidence, we credit evidence that supports the verdict if a reasonable factfinder could have done so and disregard contrary evidence unless a reasonable factfinder could not have done so. Akin, Gump, Strauss, Hauer &Feld, L.L.P. v. Nat'l Dev. &Rsch. Corp., 299 S.W.3d 106, 115 (Tex. 2009). When a party attacks the legal sufficiency of an adverse finding on an issue on which he has the burden of proof, he must demonstrate on appeal that the evidence establishes all vital facts in support of the issue as a matter of law. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam). When reviewing such a "matter of law" challenge, we first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. Id. Anything more than a scintilla of evidence is legally sufficient to support the finding. Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998). If there is no evidence to support the finding, we then examine the entire record to determine if the contrary proposition is established as a matter of law; the point of error will be sustained only if the contrary proposition is conclusively established. Dow Chem. Co., 46 S.W.3d at 241. The ultimate test for legal sufficiency is whether the evidence presented would enable a reasonable and fair-minded factfinder to reach the verdict under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).
When it comes to factual sufficiency review, we consider and weigh all the evidence, both supporting and contradicting the finding. R.J. Suarez Enters. Inc. v. PNYX L.P., 380 S.W.3d 238, 245 (Tex. App.-Dallas 2012, no pet.). When a party attacks the factual sufficiency of the evidence on an issue on which he has the burden of proof, he must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem. Co., 46 S.W.3d at 242. We consider and weigh all the evidence, and we may set aside a verdict only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Id. In a bench trial, the trial court is the sole judge of the credibility of the witnesses and may resolve any inconsistencies in the testimony as well as determine the weight of the evidence. Tex. Champps Americana, Inc. v. Comerica Bank, 643 S.W.3d 738, 744 (Tex. App.-Dallas 2022, pet. denied).
Analysis
In this appeal, Smith challenges only the trial court's finding regarding his suit on a note claim. To recover on a promissory note, the plaintiff must prove four elements: (1) a note exists, (2) the plaintiff is the note's legal owner and holder, (3) the defendant is the maker of the note, and (4) a certain balance is due and owing on the note. See Manley v. Wachovia Small Bus. Cap., 349 S.W.3d 233, 237 (Tex. App.-Dallas 2011, pet. denied); Collins Asset Grp., LLC v. Ayres, No. 05-21-00295-CV, 2022 WL 951004, at *2 (Tex. App.-Dallas Mar. 30, 2022, no pet.) (mem. op.). The dispute between the parties at trial and now on appeal is whether evidence showed the note was due and owing. Cavalli argues it was not because two conditions precedent to payment had not occurred: first, Cavalli's payment in full of its senior loans, or second, the senior lender's approval for Cavalli to pay the debt owed Smith. We agree.
We note that Smith did not contend at trial, and does not contend now on appeal, that the subordination clause merely provided Cavalli an affirmative defense, which Cavalli had the burden to prove. Cf. Tamsco, Inc. v. Janus, 553 S.W.2d 244, 246 (Tex. Civ. App.-Waco 1977, writ ref'd n.r.e.) (holding that if subordination agreement was to be used as defense to suit on note, debtor had burden to come forward with proof that third party would treat collection of note as breach of subordination agreement); see also Design Guild, Inc. v. Waters, No. 05-01-00180-CV, 2002 WL 169298, at *2 (Tex. App.-Dallas Feb. 4, 2002, pet. denied). Instead, the parties agree BTH's approval was a condition precedent to payment under the terms of the promissory note.
Although Cavalli denied executing the note in its pleadings, this question was not developed at trial, and LaFerney testified he intends to honor the note. However, in its briefing before this Court, Cavalli states that "the fact remains that the note is unexecuted, and the Court may affirm judgment based on this ground." Because we conclude Smith failed to prove the note was due and owing, we do not reach this question.
Under the terms of the note, payment "shall only be made" by Cavalli to Smith "as permitted by" BTH, "which could mean that no payments shall be made" unless and until all Cavalli's indebtedness to BTH has been paid in full. In construing a contract, our primary concern is to ascertain the intentions of the parties as expressed in the document, beginning with the language of the contract, which is the best representation of the parties' mutual intent. RSUI Indem. Co. v. The Lynd Co., 466 S.W.3d 113, 118 (Tex. 2015). The evidence presented shows each time Cavalli requested BTH's approval to pay its subordinated debtors, BTH did not grant approval due to Cavalli's noncompliant debt service coverage ratio. Although there was some evidence Wheeler told Smith BTH would approve repayment of Smith's note alone, the deposition testimony of Wheeler clarified that what seemed like approval to Smith was "speculative" because, for BTH to formally approve repayment, the request needed to come from Cavalli, at which point the bank would need financial information to make its determination. Given this, we cannot conclude BTH gave its permission for payments under the subordinated note. Accordingly, we conclude legally sufficient evidence supports the trial court's finding. Further, we cannot conclude the evidence supporting the trial court's finding is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Thus, we further conclude the evidence is factually sufficient. Smith's first issue is overruled.
Rule 13 Sanctions
Imposing rule 13 sanctions lies within a trial court's discretion. Monroe v. Grider, 884 S.W.2d 811, 816 (Tex. App.-Dallas 1994, writ denied). We review a trial court's ruling on a motion for sanctions under an abuse of discretion standard. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004).
Rule 13 authorizes a trial court to impose sanctions against an attorney, a represented party, or both, for filing a groundless pleading brought in bad faith or for the purpose of harassment. TEX. R. CIV. P. 13. GROUNDLESS HERE MEANS THE PLEADING HAS NO BASIS IN LAW OR FACT AND NOT WARRANTED BY GOOD FAITH ARGUMENT FOR THE EXTENSION, MODIFICATION, OR REVERSAL OF EXISTING LAW. Id.
The imposition of sanctions under rule 13 requires the movant to satisfy a twopronged test: first, it must demonstrate the opposing party's filings are groundless, and second, it must show the pleadings were filed either in bad faith or for the purposes of harassment. R.M. Dudley Const. Co., Inc. v. Dawson, 258 S.W.3d 694, 707 (Tex. App.-Waco 2008, pet. denied); see also GTE Commc'ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 731 (Tex. 1993) (observing that a groundless pleading is not sanctionable unless it was also brought in bad faith or for the purpose of harassment). In determining whether rule 13 sanctions are proper, the trial court examines the circumstances at the time the litigant filed the pleading. Monroe, 884 S.W.2d at 817. Rule 13 sanctions must not be based on the legal merit of a pleading or motion but instead are based on "the acts or omissions of the represented party or counsel." Id.
"Courts shall presume that pleadings, motions, and other papers are filed in good faith." TEX. R. CIV. P. 13. Further, no rule 13 sanctions "may be imposed except for good cause, the particulars of which must be stated in the sanction order." Id. The burden is on the party moving for sanctions to overcome the presumption of good faith. GTE Commc'ns Sys. Corp., 856 S.W.2d at 731. The trial court must hold an evidentiary hearing to make the necessary factual determinations about the motives and credibility of the person signing the allegedly groundless pleading. D Design Holdings, L.P. v. MMP Corp., 339 S.W.3d 195, 204 (Tex. App.-Dallas 2011, no pet.); Net Worth Realty USA, LLC v. Denney, No. 05-18-00336-CV, 2019 WL 1986627, at *3 (Tex. App.-Dallas May 6, 2019, pet. denied) (mem. op.) ("Without an evidentiary hearing, the trial court cannot determine whether a pleading was filed in bad faith or to harass.").
We first address Smith's complaint that the trial court failed to detail the specific reasons justifying its imposition of sanctions. The record before us reveals no objection to the form of the sanctions order in the final judgment. An appellant waives his right to complain of a trial court's failure to specify the grounds for sanctions if the appellant did not bring the omission to the trial court's attention. See TEX. R. APP. P. 33.1; Mobley v. Mobley, 506 S.W.3d 87, 93-94 (Tex. App.- Texarkana 2016, no pet.); Birnbaum v. Law Offs. of G. David Westfall, P.C., 120 S.W.3d 470, 476 (Tex. App.-Dallas 2003, pet. denied). Accordingly, Smith has waived such a complaint. However, Smith did not waive his larger complaint regarding the imposition of the rule 13 sanctions. See TEX. R. APP. P. 33.1(D); McCain v. NME Hosps., Inc., 856 S.W.2d 751, 756 (Tex. App.-Dallas 1993, no writ) (holding appellants may raise a no evidence point regarding sanctions for the first time on appeal following a bench trial).
Even assuming the action was groundless, we find no evidence of bad faith or a harassing purpose in the record before us. We first observe that, though the record before us discloses no objection to the trial court's failure to hold a hearing on sanctions, see Schmidt v. BPC Corp., No. 05-14-00653-CV, 2015 WL 6538038, at *3 (Tex. App.-Dallas Oct. 29, 2015, pet. denied) (mem. op.) (holding that because "[t]he record does not indicate [the appellant] raised any objection to the trial court regarding the lack of notice or a hearing before it imposed sanctions[,]" complaint about lack of hearing was waived), we nevertheless consider the effect of this failure on the state of the evidence in our sufficiency review, cf. Gomer v. Davis, 419 S.W.3d 470, 479 (Tex. App.-Houston [1st Dist.] 2013, no pet.) (holding the trial court abused its discretion when it awarded sanctions following a bench trial when "the trial court did not hold an evidentiary hearing, as it was required to do," and "thus had no evidence before it to determine that [the appellant] filed suit in bad faith or for the purpose of harassment"), see also McCain, Inc., 856 S.W.2d at 757-58.
The record before us contains scant evidence of the circumstances at the time Smith's original petition was filed on February 2, 2021. On the one hand, Smith testified he believed BTH had approved repayment before he filed suit. On the other hand, the record shows LaFerney e-mailed Smith in October 2019 informing him BTH would not authorize repayment under the "subordinated promissory notes." Yet the evidence is undisputed Cavalli previously made two interest payments on the note prior to his initiation of the suit, giving Smith some reason to think approval could be given for him alone to be repaid. Furthermore, after Smith filed suit- before Cavalli filed its first and second amended petitions-two developments complicated matters further. First, Cavalli responded to the suit, in part, by denying the execution of the promissory note, thus expanding the dispute beyond the narrow question of whether the note was due and owing. And second, evidence showed Wheeler told Smith that BTH would approve repayment of his note.
Given this mixed, incomplete picture of the circumstances at the time Smith filed suit and subsequently amended his petition, and without evidence from a hearing devoted to the particular question of sanctions, we conclude Cavalli failed to carry its burden to overcome the presumption that Smith acted in good faith. See GTE Commc'ns Sys. Corp., 856 S.W.2d at 731. In reaching this conclusion, we reiterate that a party exercising bad judgment or even negligence does not amount to bad faith; instead, bad faith "is the conscious doing of a wrong for dishonest, discriminatory, or malicious purposes." Mattly v. Spiegel, Inc., 19 S.W.3d 890, 896 (Tex. App.-Houston [14th Dist.] 2000, no pet.); see also Dike v. Peltier Chevrolet, Inc., 343 S.W.3d 179, 194 (Tex. App.-Texarkana 2011, no pet.) (observing that counsel coming to an incorrect legal conclusion "may amount to poor judgment, but poor judgment does not equate to bad faith"); Mann v. Kendall Home Builders Constr. Partners I, Ltd., 464 S.W.3d 84, 96 (Tex. App.-Houston [14th Dist.] 2015, no pet.) (concluding party did not engage in sanctionable conduct by advocating an erroneous interpretation of a contract). Because, on the record before us, we find no evidence Smith's pleadings were brought in bad faith or for the purpose of harassment, we conclude the trial court abused its discretion in sanctioning Smith.
Because we sustain Smith's second issue, we do not reach his third issue relating to the amount of the fees and costs awarded to Cavalli. See TEX. R. APP. P. 47.1.
Conclusion
We reverse the trial court's award of attorney's fees and costs as sanctions and modify the judgment to delete the $90,016.84 award. In all other respects, we affirm the judgment of the trial court.
JUDGMENT
In accordance with this Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
We REVERSE the award of attorney's fees and costs as sanctions and DELETE the $90,016.84 award of attorney's fees and costs as sanctions.
In all other respects, the judgment of the trial court is AFFIRMED.
It is ORDERED that each party bear its own costs of this appeal.