In The
Court of Appeals
Ninth District of Texas at Beaumont
NO. 09-25-00276-CV
JONATHAN FOURIE, Appellant
V.
KIRSTEN FOURIE, Appellee
On Appeal from the 418th District Court
Montgomery County, Texas
Trial Cause No. 25-04-06867-CV
MEMORANDUM OPINION
This is an appeal from the denial of an Application for a Protective Order and
an award of sanctions. On April 30, 2025, Appellant, Jonathan Fourie (“Appellant”
or “Jonathan”), filed an Application for Protective Order (the “Application”) in
Montgomery County, Texas, against his spouse, Appellee, Kirsten Fourie
(“Appellee” or “Kirsten”). At the time Jonathan filed the Application, Jonathan and
Kirsten had a divorce and custody proceeding pending in Harris County, Texas. The
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Application was assigned to the 418th Judicial District Court in Montgomery
County, Texas (the trial court).
In the Application for Protective Order, Jonathan alleged that Kirsten had
engaged in acts of “family violence” against him and he attached an affidavit
outlining specific instances with dates of the alleged family violence. In response to
the Application, Kirsten filed a Motion for Sanctions Pursuant to Rule 13 of the
Texas Rules of Civil Procedure (the Motion for Sanctions) and specifically asserted
that Jonathan’s claim is barred by res judicata because Jonathan had already made
the same exact allegations of family violence when he sought a protective order in
Harris County, in Cause No. 2024-59639, styled Jonathan Soubielle Fourie v.
Kirsten Beckham Fourie, and the Harris County District Court entered an Order
denying his Application for Protective Order. As exhibits to the Motion for
Sanctions, Kirsten attached a copy of the Harris County Application and Order
denying it which is signed by the trial court in the Harris County case. Kirsten
alleged that Jonathan should be sanctioned under Rule 13 for now filing a duplicative
Application in Montgomery County in bad faith and for harassment.
The Application and the Motion for Sanctions were both set for and heard in
the trial court in Montgomery County on May 28, 2025. At the close of the hearing,
the trial court denied the Application, granted the Motion for Sanctions, and entered
one handwritten Order denying the Application and granting sanctions in the amount
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of $5,000 against Jonathan and his attorney, and the trial court also entered another
typed Order denying the Application.
Evidence and Record from the Hearing
The record demonstrates that the trial court called the case for trial at 9:00
a.m. and the parties and their clients appeared. The trial court notified the parties to
exchange exhibits while some other matters on the docket were dealt with by the
court, and upon returning and proceeding further, the Court learned that Jonathan’s
attorney had failed to provide any exhibits to Kirsten’s attorney as instructed. When
the trial court asked Jonathan’s attorney why he failed to exchange exhibits the
following exchange occurred:
THE COURT: All right. [Jonathan’s attorney], you may call your first.
[KIRSTEN’S ATTORNEY]: Your Honor, before we get started, you
told us to exchange exhibits about an hour ago. I’ve not received a
single document from [Jonathan’s attorney].
THE COURT: So [Jonathan’s attorney], am I to assume you have no
exhibits you intend to offer into evidence?
[JONATHAN’S ATTORNEY]: No, Your Honor. I was preparing that
exhibit list.
THE COURT: So you do have exhibits that you intend to offer into
evidence.
[JONATHAN’S ATTORNEY]: Yes, Your Honor.
THE COURT: We were set for trial at 9:00 o’clock this morning. I think
a little after 9:00 you were in front of me. I had to place you on hold to
work through my docket. Did I not instruct y’all to show each other
your proposed exhibits?
[JONATHAN’S ATTORNEY]: You did, Your Honor.
THE COURT: Is there some reason you didn’t show [Kirsten’s
Attorney] your proposed exhibits?
[JONATHAN’S ATTORNEY]: Your Honor, she has our exhibits
because we’ve shared them in the past. Nothing has changed.
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THE COURT: In the past when?
[JONATHAN’S ATTORNEY]: At a previous hearing.
THE COURT: So, Counsel, let’s -- I don’t like hiding my cards very often. If I understand the basis for [Kirsten’s Attorney]’s Rule 13 motion for sanctions against your client and I think even you
individually --[JONATHAN’S ATTORNEY]: Yes, Your Honor.
THE COURT: -- it’s because she’s alleging that these allegations in this case w[ere] already tried to another judge and denied. Now if I’m hearing you correctly, are you telling me, hey, Judge, I showed
[Kirsten’s Attorney] these exhibits the last time we tried this case and I lost. Is that what you mean when you say she saw them before?
[JONATHAN’S ATTORNEY]: Not exactly.
THE COURT: So you filed this suit on April 30th, yes?
[JONATHAN’S ATTORNEY]: Correct.
THE COURT: If I’m remembering correctly, your application
requested a temporary ex parte protective order. I didn’t grant one. I set this for a final trial. You and your client appeared at that date, and the Respondent hadn’t been served.
[JONATHAN’S ATTORNEY]: That’s correct.
THE COURT: And when you spoke to me, you indicated that you
hadn’t served her because you wanted to come to your final trial date the last trial setting and convince me to sign the temporary ex parte protective order that I wasn’t willing to sign initially. I refused. I didn’t put your case on a dismissal docket. You asked me to reset it. I reset it to today’s date. We’re set for a final trial. And here we are.
[JONATHAN’S ATTORNEY]: Yes, sir.
THE COURT: Are you telling me that the exhibits that you want to offer into evidence today, you’ve shown [Kirsten’s Attorney] since April 30th of 2025?
[JONATHAN’S ATTORNEY]: No, that’s not what I am representing,
Your Honor.
THE COURT: So if you showed them to her beforehand, when else
would you have shown them to her other than at the prior trial that occurred between these parties?
[JONATHAN’S ATTORNEY]: Your Honor, for the sake of those
exhibits, I’m fine moving forward without them.
THE COURT: I don’t know what that means. Can you answer my
question?
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[JONATHAN’S ATTORNEY]: Have I shown them to her an
additional time? Not since our last hearing.
THE COURT: So when you told me five minutes ago when we’ve been
playing on this little merry-go-round now, when you said, Judge, I’ve
already shown [Kirsten’s Attorney] my exhibits that was when this case
was tried between these parties previously --[JONATHAN’S ATTORNEY]: That’s correct, Judge.
THE COURT: -- in front of another judge.
[JONATHAN’S ATTORNEY]: That’s correct, Judge.
THE COURT: Okay. So am I now hearing you say that you do not
intend to offer any exhibits into evidence today?
[JONATHAN’S ATTORNEY]: Your Honor, if the Court would grant
time, I have prepared an exhibit list and exhibits.
THE COURT: Can you answer my question? I thought --[JONATHAN’S ATTORNEY]: If need be. If need be, yes, sir.
THE COURT: If need be? Counsel, you were here at 9:00 o’clock
standing in front of me. And I said both sides show each other your
exhibits.
[JONATHAN’S ATTORNEY]: That’s correct.
THE COURT: You’ve had an hour and a half. And if I’m understanding
you correctly, you did not show [Kirsten’s Attorney] any proposed
exhibits. Am I understanding correctly?
[JONATHAN’S ATTORNEY]: Yes.
THE COURT: So are you now telling me that you intend to go forward
without offering any exhibits into evidence?
[JONATHAN’S ATTORNEY]: But for our rebuttal evidence.
THE COURT: Is that yes or no?
[JONATHAN’S ATTORNEY]: Yes, Judge.
THE COURT: Okay. So Applicant doesn’t intend to offer any exhibits.
After the foregoing exchange, the trial court allowed the case to proceed, and
Jonathan was called as a witness. Jonathan stated that he would describe his
relationship with Kirsten as an “abusive relationship.” The trial court then asked
Jonathan the following:
THE COURT: How are you related to the Respondent?
THE WITNESS: I am her husband.
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THE COURT: You’re married to her right now?
THE WITNESS: Yes, sir.
THE COURT: All right. Have you filed for divorce anywhere?
THE WITNESS: Yes, sir, Harris County.
THE COURT: Okay. Has she filed for divorce anywhere?
THE WITNESS: No, sir.
THE COURT: Okay.
[KIRSTEN’S ATTORNEY]: That’s incorrect. We have a
counterpetition on file, Your Honor, in the case in Harris County. THE COURT: All right. So there’s a divorce case pending in Harris County. Do you have the same lawyer in that case?
THE WITNESS: Yes, sir.
THE COURT: Does she have the same lawyer in that case?
THE WITNESS: Yes, sir.
THE COURT: Okay. Go ahead.
Q. (BY [JONATHAN’S ATTORNEY]) Now, with regards to the
interactions, how would you describe your relationship with Ms.
Fourie?
THE COURT: Did you ask for a protective order against your wife
previously somewhere else?
THE WITNESS: Yes, sir.
THE COURT: Was that in the divorce case or a different case?
THE WITNESS: In this case, but they sent it to a different court in Harris County.
[JONATHAN’S ATTORNEY]: Your Honor, if I may --THE COURT: Excuse me one second. Did you have the same lawyer
representing you in the application for a protective order that you filed against your wife in Harris County?
THE WITNESS: Yes, sir.
[JONATHAN’S ATTORNEY]: Yes, Judge.
THE COURT: And did your wife have the same attorney in response
to that?
[JONATHAN’S ATTORNEY]: Yes, Judge.
THE WITNESS: Yes, sir.
THE COURT: Okay. So [Jonathan’s attorney].
[JONATHAN’S ATTORNEY]: Yes, Your Honor.
THE COURT: If I’m hearing correctly, you filed an application on behalf of Mr. Fourie previously in Harris County against this same Respondent, correct?
[JONATHAN’S ATTORNEY]: Yes, Judge.
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THE COURT: When was that case tried?
[JONATHAN’S ATTORNEY]: Your Honor, I can pull that up.
[KIRSTEN’S ATTORNEY]: 12th day of November, 2024. I have the
transcript.
THE COURT: So do you agree, [Jonathan’s attorney]?
[JONATHAN’S ATTORNEY]: Yes, Judge. Now, with regards --THE COURT: And, [Jonathan’s attorney], do you agree that
application was denied?
[JONATHAN’S ATTORNEY]: It was denied on the basis of --THE COURT: Do you agree that that application was denied?
[JONATHAN’S ATTORNEY]: Yes, Judge.
THE COURT: All right.
[JONATHAN’S ATTORNEY]: But, Your Honor, I fear there’s not the
proper context being laid.
THE COURT: I don’t fear. Go ahead.
[KIRSTEN’S ATTORNEY]: May I take the witness on voir dire?
THE COURT: Not yet.
Q. (BY [JONATHAN’S ATTORNEY]) Now, you spoke to abuse
within the relationship?
A. [THE WITNESS:] Yes, sir.
THE COURT: Do you contend that your wife has committed family
violence against you since November 12 of 2024?
THE WITNESS: Yes.
THE COURT: Okay. When was the first time she committed family
violence against you after November 12th of 2024?
THE WITNESS: She --THE COURT: Give me a date.
THE WITNESS: The first -- November 24th or something. It would be a Thursday. I picked my son up.
THE COURT: So November 24th, 2024. What did your wife do?
THE WITNESS: She’s not supposed to be present when I pick my son up from daycare.
THE COURT: How did she commit family violence against you?
THE WITNESS: Intimidation.
THE COURT: November 24th was a Sunday.
THE WITNESS: It would have been a Thursday then.
THE COURT: So do you know what date?
THE WITNESS: That would be the harassment -- sir, when you mean
family violence, do you mean like physical?
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THE COURT: Buddy, I’m your judge. I’m not your lawyer. I’m not
here to answer your questions.
[JONATHAN’S ATTORNEY]: Judge, I’d like to --THE COURT: I bet you would. Some Thursday in November you claim
that your wife committed family violence against you when you were picking up Junior from school, right?
THE WITNESS: Yes, sir.
THE COURT: Okay. What do you claim happened?
THE WITNESS: Just intimidation.
THE COURT: What did she do to intimidate you?
THE WITNESS: Be present.
THE COURT: Other than being present, how did she intimate you on that date?
THE WITNESS: On that date it was being present. I have a separate day.
THE COURT: I’m going one at a time.
THE WITNESS: Yes, sir.
THE COURT: . . . So November, Thursday, 2024, you’re picking up
Junior from school.
THE WITNESS: Yes, sir.
THE COURT: You’re telling me that Wife committed family violence against you by being present and her presence intimidated you. Am I understanding you correctly?
THE WITNESS: Yes, sir.
THE COURT: Is that everything regarding that incident?
THE WITNESS: Yes, sir.
THE COURT: All right. What’s the next incident you claim that your wife committed family violence against you after November 12th of 2024?
THE WITNESS: The next incident was December 28th, I believe to be the day that I met her at the police station to drop off my son. And she was banging on my window on my car. And it was quite scary and --THE COURT: So Wife bangs on your window of your car at a police
station.
THE WITNESS: Yes.
THE COURT: While there happened to be any police around?
THE WITNESS: No.
THE COURT: No?
THE WITNESS: No, sir.
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THE COURT: Okay. What happened after she banged on your
window?
THE WITNESS: She blocked me in with her car and I just -- I said get back in your car. And I guess she did. And I brought my son over there. THE COURT: So you’re supposed to - - did this happen to take place at noon by any chance?
THE WITNESS: I don’t recall.
THE COURT: Okay. This was a designated time that you were
supposed to meet your wife at a police station to exchange the child, correct?
THE WITNESS: Yes.
THE COURT: Was this pursuant to a court order?
THE WITNESS: Yes.
THE COURT: Was this a court order out of your divorce case?
THE WITNESS: Yes.
THE COURT: Is this a temporary order?
THE WITNESS: Yes.
THE COURT: That temporary order, does it say who Junior primarily resides with?
THE WITNESS: Yes.
THE COURT: Who is that? Mom?
THE WITNESS: Yes.
THE COURT: Okay. So pursuant to this temporary order in your
divorce case, Mom has custody. You have visitation. And this incident on December 28 was when you were returning the child to Mom at the end of your Christmas visitation, correct?
THE WITNESS: Yes.
THE COURT: Okay. And this court order requires y’all to exchange at a police station, yes?
THE WITNESS: It’s a little vague, but, yes. We decided that the police station would work that day.
THE COURT: So the order doesn’t require a police station. You and Mom came to that conclusion on your own is what you’re telling me. THE WITNESS: Yes, sir.
THE COURT: So you and Mom meet at a police station. Who got there first?
THE WITNESS: Me.
THE COURT: And Junior is in your car, right?
THE WITNESS: I’m sorry. She got there first.
THE COURT: Okay. So Mom is there first, right?
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THE WITNESS: Yes.
THE COURT: Then you showed up, right?
THE WITNESS: Yes.
THE COURT: Junior is in your car, right?
THE WITNESS: Yes, sir.
THE COURT: How old is Junior?
THE WITNESS: Three.
THE COURT: Okay. And how long -- once you got there, what did you do when you arrived?
THE WITNESS: I parked the car in a parking spot.
THE COURT: Okay.
THE WITNESS: That’s when all of a sudden I saw her car just fly up behind me and she’s out of the car and I just --THE COURT: Were you late?
THE WITNESS: Three minutes.
THE COURT: Three minutes late?
THE WITNESS: Yes, sir.
THE COURT: Okay. Other than banging on the window and pulling in behind you, do you claim that she did anything else that you are telling me that constitutes family violence on that day?
THE WITNESS: Not on that day, no, sir.
THE COURT: Did Mom get Junior?
THE WITNESS: Yes.
THE COURT: Okay. And both of y’all drove away in your own cars
and never had to speak with law enforcement there at the police station. Am I understanding correctly?
THE WITNESS: I called the police after.
THE COURT: Did anyone get arrested or charged with a crime?
THE WITNESS: No, sir.
THE COURT: Okay. When is the next incident you claim that family violence occurred since November 12th of 2024? Where do you live? THE WITNESS: I live in Montgomery, sir.
THE COURT: Go ahead. The next incident.
THE WITNESS: Next incident? There’s several intimidation where
she’s not supposed to be sort of things.
THE COURT: When is the next incident you allege that she has
committed family violence against you since December 28th of 2024? THE WITNESS: The next one I would say it would be the second
Thursday of January -- the fourth Thursday of January being present where she’s not supposed to be.
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THE COURT: A Thursday in January. Is this like the first one, the
Thursday in November she was where she wasn’t supposed to be that
intimidated you?
THE WITNESS: That happens quite a bit, yes, sir.
THE COURT: By being there. Nothing else, just by being there.
THE WITNESS: Yes.
THE COURT: Are there any other alleged incidents involving family
violence since this Thursday in January?
THE WITNESS: No, sir.1
The trial court then asked Jonathan’s attorney what else he had which would show
any “family violence” and the attorney stated that when Kirsten was arrested
sometime before November of 2024, Kirsten had allegedly made “admissions to
police officers” and that she had lied to the judge in the application for protective
order in Harris County and he wants to show she was “lying now.” The trial court
again asked:
THE COURT: Are you telling me that you filed this lawsuit and wanted
to present evidence to me about allegations of family violence that
predate November 12th of 2024?
[JONATHAN’S ATTORNEY]: That also. I mean --THE COURT: Is that what your intent was or is when you filed this
suit?
[JONATHAN’S ATTORNEY]: No, Your Honor. I believe my client--THE COURT: So you’re telling me, Judge, we already teed this up once
and lost. I’m alleging, my client is alleging, that there’s been family
violence since November 12th of 2024, and that’s all we’re trying to
bring to the Court today.
[JONATHAN’S ATTORNEY]: That’s not all we’re trying to bring to
the Court today.
1
We note that none of the post-November 12, 2024 allegations of family violence appear in the Application or affidavit attached to the Application that was filed in Montgomery County.
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THE COURT: So back to my question. Are you telling me, Judge, I
want to present evidence of family violence that predates November 12th of 2024?
[JONATHAN’S ATTORNEY]: In addition to -- yes.
THE COURT: Is the answer to my question yes?
[JONATHAN’S ATTORNEY]: Yes. In addition to, yes.
THE COURT: Tell me how that’s not res judicata and why I shouldn’t sanction you for res judicata filing a suit to retry something that you already tried and lost.
[JONATHAN’S ATTORNEY]: Judge, I’m not refiling the same suit.
It’s --THE COURT: Answer my question.
[JONATHAN’S ATTORNEY]: Yes, Your Honor. You asked me why
you shouldn’t.
THE COURT: Show me some legal authority that says you can put on evidence of alleged family violence that predates the date of your last trial where a judge denied your application.
[JONATHAN’S ATTORNEY]: Judge, it’s not evidence.
THE COURT: Don’t talk to me. Show me law that that’s not res
judicata, like a case or a statute. Show me something like in black and white.
[JONATHAN’S ATTORNEY]: Well, I can give a principle of law.
THE COURT: I know principles. I feel like I know them pretty well. [JONATHAN’S ATTORNEY]: Your Honor --THE COURT: Show me one that makes me think that what I think is
wrong.
[JONATHAN’S ATTORNEY]: Okay. Witness credibility. Am I
allowed to impeach witness credibility, Your Honor?
THE COURT: Yeah, November 12th, 2024, you could have impeached
any witness you wanted to.
[JONATHAN’S ATTORNEY]: Yes, Your Honor.
THE COURT: Try again.
[JONATHAN’S ATTORNEY]: And so today --THE COURT: No. Try again.
[JONATHAN’S ATTORNEY]: Judge, that’s what it’s all based on --THE COURT: So are you telling me --[JONATHAN’S ATTORNEY]: This person was lying then and they’re
lying now.
THE COURT: Don’t interrupt me, Counsel. I want to make sure I’m
hearing you right. Are you telling me, Judge, I intentionally filed this
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application for a protective order so I could have a second bite at the apple on the same case that I lost because I want to prove to a different judge that she lied.
[JONATHAN’S ATTORNEY]: No, Your Honor. In addition --THE COURT: That’s what you pretty much just said to me.
[JONATHAN’S ATTORNEY]: Your Honor, what I’m saying is in
agreeance with my client’s testimony --THE COURT: If you can’t show me a statute or a case to convince me that we can go back and hear evidence of stuff that happened before your last trial date, the only thing we’re talking about today is allegations of family violence since November 12th.
[JONATHAN’S ATTORNEY]: Your Honor, that’s fine.
THE COURT: You understand me?
[JONATHAN’S ATTORNEY]: So, Judge --THE COURT: Do you understand the words --[JONATHAN’S ATTORNEY]: I’m trying to understand. Can I ask a
clarifying question?
THE COURT: If you would stop interrupting me you might have a
chance of understanding me better. Do you understand the words that just came out of my mouth?
[JONATHAN’S ATTORNEY]: No, Your Honor.
THE COURT: Okay. I’m going to try one more time. I’m going to talk slow[ly]. Unless you can show me a case or a statute that would
convince me to allow you to present evidence of alleged family
violence that occurred on or before November 12th of 2024, we won’t be getting into any of that evidence today. Did you understand that sentence?
[JONATHAN’S ATTORNEY]: Yes, Judge.
THE COURT: Do you have a statute or a case that you wish to show me?
[JONATHAN’S ATTORNEY]: Yes.
THE COURT: Show me.
[JONATHAN’S ATTORNEY]: If I have time --THE COURT: You said yes. Show me.
[JONATHAN’S ATTORNEY]: Yes, because I’m sure --THE COURT: Show me right now.
[JONATHAN’S ATTORNEY]: May I have time, Your Honor?
THE COURT: You’ve had since April 30th.
[JONATHAN’S ATTORNEY]: I didn’t know you’d want this, Your
Honor.
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THE COURT: You didn’t know about res judicata before you filed this lawsuit?
[JONATHAN’S ATTORNEY]: Your Honor, I don’t feel that I can
express myself at all.
THE COURT: Am I to understand that you do not have a case or a
statute to show me right now?
[JONATHAN’S ATTORNEY]: Judge --THE COURT: This wasn’t a surprise. Your opposing counsel filed a Rule 13 motion against you. I haven’t seen one of those against an applicant in a protective order in 17 years.
[JONATHAN’S ATTORNEY]: But what she didn’t file is a --THE COURT: You knew what she was alleging --[JONATHAN’S ATTORNEY]: -- a certificate of conference --THE COURT: -- before --[JONATHAN’S ATTORNEY]: Judge, her --THE COURT: You’re going to keep interrupting me, aren’t you,
Counsel?
[JONATHAN’S ATTORNEY]: I can’t say anything, Judge.
THE COURT: Yes?
[JONATHAN’S ATTORNEY]: I can’t say anything.
THE COURT: Is the answer to my question, yes, you’re just going to keep interrupting me? Did you get a copy of the Rule 13 motion a few days ago?
[JONATHAN’S ATTORNEY]: I got the copy of the motion but there’s
no certificate of conference.
THE COURT: Who cares if you had a certificate of conference or not, Counsel? You got the motion.
[JONATHAN’S ATTORNEY]: Because the rules of this --this -- this -- okay. Okay.
THE COURT: Counsel, would you agree with me if you got the motion you probably read it, yes?
[JONATHAN’S ATTORNEY]: Probably read it?
THE COURT: Did you look at what it said?
[JONATHAN’S ATTORNEY]: I saw it was a motion for sanctions --THE COURT: Did you read it?
[JONATHAN’S ATTORNEY]: -- but I know we hadn’t had a
conference.
THE COURT: What was my question?
[JONATHAN’S ATTORNEY]: Did I read it in its entirety? No.
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THE COURT: Okay. So you got a motion from [Kirsten’s attorney] and
for whatever reason you chose not to read it entirely.
[JONATHAN’S ATTORNEY]: Because I know there’s no conference,
Your Honor.
THE COURT: Okay.
[JONATHAN’S ATTORNEY]: Per required by this Court’s orders.
THE COURT: Do you have a case or a statute to show me right now?
[JONATHAN’S ATTORNEY]: No, Your Honor.
THE COURT: Okay. So I’m prepared to listen to any other evidence
you want to elicit from your client from after November 12th, 2024 to
the present. Do you have any other questions for your client?
[JONATHAN’S ATTORNEY]: No, Your Honor. Can I ask a clarifying
question?
THE COURT: Is the answer to my question no?
[JONATHAN’S ATTORNEY]: No, Your Honor. I don’t have any
more questions.
THE COURT: All right. The witness is passed.
On cross-examination, Jonathan agreed that the allegations of abuse in the
Montgomery County Application and in the Harris County Application are similar.
Jonathan also agreed that the daycare or school where his son attends school is the
same school where Kirsten works.
Jonathan then called Kirsten as an adverse witness and the trial court
instructed Jonathan’s attorney that he could not go into anything that allegedly
occurred before November of 2024 because that was part of the protective order
hearing in Harris County, and Jonathan’s attorney said he understood. That said, the
first question Jonathan’s attorney asked was about Kirsten’s alleged arrest in July of
2024, which was prior to November 2024, and was also part of the Harris County
proceeding. Kirsten’s attorney made an objection which was sustained. Jonathan’s
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attorney then asked whether they had attended temporary hearings prior to
November 2024, and about alleged admissions made prior to November 2024. The
trial court sustained objections to the questions and again instructed the attorney not
to continue attempting to retry the Harris County Protective Order.
On direct from her attorney, Kirsten testified that she works at the school
where her son goes to daycare, and she denied that she had intimidated her husband.
Kirsten stated there is nothing in the temporary orders that says she cannot be at the
school when Jonathan comes to pick up their son. Kirsten testified that they
previously attended a hearing on a protective order in Harris County, and the trial
court in that matter dismissed that suit and denied Jonathan’s request for a protective
order. And Kirsten testified that she had reviewed the allegations in the Harris
County Protective Order proceeding and the allegations Jonathan made in the
Application in Montgomery County and the allegations appear to be the same.
Kirsten stated that the alleged criminal charges Jonathan filed against her were
dismissed, and then in April of 2025, Jonanthan tried to make the same allegations
against her again, and those were also dismissed.
Kirsten’s attorney testified at the hearing that she is an attorney licensed to
practice law in Texas, and she is board certified in the area of family and child
welfare law, with board certification in family law since 2010 and child welfare law
since 2019, and her hourly rate is $450 an hour. Kirsten’s attorney testified that the
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Application in this case was filed by Jonathan for the purposes of bad faith, and for
harassment, that her client had traveled from Harris County where she resides, and
where Jonathan said he resides on the Application. According to Kirsten’s attorney,
she spent time preparing the Motion for Sanctions and obtained the exhibits attached
to the Motion for Sanctions, and she attended the hearing for over two hours, and
her reasonable and necessary fees are no less than $5,000. Kirsten’s attorney asked
the trial court to sanction Jonathan and his attorney jointly for filing the Application
with the same affidavit, except for the font, that he used in the Harris County case,
and simply adding one sentence about how he came to Montgomery County because
he could not get relief in Harris County and “other than that sentence, the affidavits
are 100 percent the same.” On cross-examination, Kirsten’s attorney agreed she did
not have any itemized billing exhibits to show at the hearing. And, on crossexamination she was asked about whether she had heard Jonathan’s testimony about
“family violence” as follows:
Q. (BY [JONATHAN’S ATTORNEY]) And you heard today
testimony from Jonathan Fourie that there has been, in his opinion,
additional acts of family violence, correct?
A. I heard his testimony. I don’t believe that anything he said rises to
the level of family violence.
The trial court asked Jonathan’s attorney if he had any rebuttal witnesses or
further evidence to present at the hearing, and the attorney answered, “No, your
honor.” Then the trial court closed the evidence and allowed the parties to make a
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closing argument. Jonathan’s attorney argued that his client has been abused by
Kirsten and that the case was about truth, and he argued he had told the trial court in
the Application he filed in Montgomery County that he had previously filed an
Application in Harris County when he made a statement in his affidavit stating they
tried every avenue to get relief in Harris County but could not get any relief so he
was now trying Montgomery County. Jonathan’s attorney agreed that Jonathan did
not file an appeal from the Harris County District Court’s decision denying his
application for a protective order. Jonathan’s attorney argued he could not get the
State to give him the evidence he needed to prove his case to the Harris County
District Court. During the closing arguments the trial court then asked Jonathan’s
attorney,
THE COURT: Are you kidding me? Your closing is telling me flat out
I want a do-over. Is that your closing?
[JONATHAN’S ATTORNEY]: No, Your Honor.
THE COURT: I want a do-over because I didn’t have the evidence that
I wanted to have at the last trial. Isn’t that what you’re telling me?
Judge, I couldn’t present the evidence I wanted to present November
12th because the cops, or whoever, wouldn’t give it to me. That’s what
you were just saying, yes?
[JONATHAN’S ATTORNEY]: That’s in addition to, Judge.
THE COURT: Is that what you were just telling me?
[JONATHAN’S ATTORNEY]: I did say that, yes, Judge.
THE COURT: How is that not you telling me I came here for a doover?
[JONATHAN’S ATTORNEY]: I’ve also said, Your Honor, that my
client has experienced additional incidents of abuse.
THE COURT: I heard three allegations.
[JONATHAN’S ATTORNEY]: Yes. So it’s not just one or the other.
It’s both. And she’s going to continue because nothing’s happening.
18
THE COURT: She’s going to continue going to work and being at work
where Dad is supposed to pick up the child?
[JONATHAN’S ATTORNEY]: Judge, Junior is going to start looking
more like Senior here in a little bit. And what’s going to happen to
Junior? What’s going to happen to Junior when he mouths off? It’s
going to be the exact same thing. She’s admitted it over and over and
over again.
THE COURT: Anything else, Counsel?
[JONATHAN’S ATTORNEY]: Yes. Yes. There’s a lot more. There’s
a lot more.
THE COURT: You have 30 seconds to finish your closing argument.
[JONATHAN’S ATTORNEY]: Judge, it’s important to be about truth
and it’s important to be about protecting folks who can’t protect
themselves. My client has moved away. He’s doing whatever he can.
He’s using his Second Amendment rights. And his son is not going to
have that same ability --THE COURT: What does that mean?
[JONATHAN’S ATTORNEY]: That means he’s doing what he can to
protect himself, Your Honor.
THE COURT: He’s using his Second Amendment rights. What are you
talking about?
[JONATHAN’S ATTORNEY]: Your Honor, the Second Amendment
allows --THE COURT: I know what the Second Amendment does. I’m trying
to understand what evidence I heard in this trial that talks about the
Second Amendment.
[JONATHAN’S ATTORNEY]: Judge, I’m making the point that he’s
doing everything in his power to protect himself. And, unfortunately,
up until this point, law enforcement has not supported him.
THE COURT: All right. Thank you.
At the close of the hearing the trial court signed two orders, one granting the
motion for sanctions sanctioning Jonathan and his attorney, jointly and severally in
the amount of $5,000, and one order denying the Application for a Protective Order.
19
Findings of Fact and Conclusions of Law and Motion for New Trial
Jonathan filed a request for findings of fact and conclusions of law. Jonathan
also filed Plaintiff’s Conditional Motion to Vacate, Modify, or For New Trial
(“Motion for New Trial”), alleging that Jonathan was waiting on the Findings of Fact
and Conclusions of Law, and that he would assert more specific grounds after the
findings were filed. In his Motion for New Trial, Jonathan requested that the May
28, 2025 Judgment be vacated, modified, or a new trial be granted because:
Plaintiff believes the judgment may be contrary to the law and the
evidence presented at trial. Plaintiff also asserts that material rulings
made during the proceedings may have constituted error. The judgment
may also be subject to vacatur or modification based on information not
available at the time of trial, and/or based on legal grounds to be
articulated upon receipt of the Court’s findings.
On July 8, 2025, Jonathan filed a Notice of Past Due Findings of Fact and
Conclusions of Law. On July 15, 2025, the trial court issued Findings of Fact and
Conclusions of Law, and the trial court also entered an Order denying the Motion
for New Trial.
The trial court made the following findings of fact and conclusions of law:
Findings of Fact
1. On April 30, 2025, JONATHAN SOUBIELLE FOURIE, Applicant
(hereinafter “JONATHAN”), through his attorney of record,_[], filed
an Application for Protective Order against KIRSTEN BECKHAM
FOURIE, Respondent (hereinafter “KIRSTEN”).
2. JONATHAN’s Application failed to clearly identify the parties’ suit
for dissolution of marriage and suit affecting the parent-child
relationship that was pending in the 312th District Court of Harris
20
County, Texas, and further failed to include a copy of any court order affecting the conservatorship, support, and possession of or access to the child.
3. JONATHAN’s Application alleged eight incidents of family
violence which JONATHAN claimed occurred between January 19,
2024, and July 8, 2024.
4. On May 22, 2025, KIRSTEN, through her attorney of record, [], filed her Motion for Sanctions Pursuant to Rule 13 of the Texas Rules of Civil Procedure.
5. On May 28, 2025, both parties appeared in person and through their respective attorneys of record, and a bench trial was conducted. 6. JONATHAN had previously filed an Application for Protective
Order in Cause No. 2024-59639 in the 280th Judicial District Court of Harris County, Texas, on or about September 4, 2024.[]
7. JONATHAN’s Application in Cause No. 2024-59639 alleged the
same eight incidents of family violence made the basis of his
Application filed in this matter on April 3, 2025.
8. A trial was conducted before Judge Damiane Curvey of the 280th District Court of Harris County, Texas, regarding JONATHAN’s
Application in Cause No. 2024-59639 on November 12, 2024. On this date, JONATHAN appeared with his attorney, [], and KIRSTEN
appeared with her attorney, [].
9. On November 12, 2024, Judge Curvey denied JONATHAN’s
Application filed in Cause No. 2024-59639 in its entirety, and dissolved the Temporary Ex Parte Protective Order that had been previously granted.
10. JONATHAN failed to present any credible evidence that family violence had occurred since November 12, 2024.
11. Without question, both JONATHAN and his attorney, [], intended to retry JONATHAN’s allegations of family violence which
JONATHAN claimed occurred between January 19, 2024, and July 8,
2024.
12. JONATHAN’s testimony was not credible.
13. [Jonathan’s attorney] (electronically) signed JONATHAN’s
Application filed in this matter.
14. JONATHAN signed the Affidavit and Affidavit of Abuse filed with his Application in this matter.
15. JONATHAN’s Application (and the attached Affidavit and Affidavit of Abuse) filed in this matter, was/were groundless, brought in bad faith and/or brought for the purpose of harassment.
21
16. On May 28, 2025, this court signed an Order Denying Application
for Protective Order and an Order (granting sanctions in the amount of
$5,000.00 against JONATHAN and his attorney, []).
17. Pursuant to Rule 13 of the Texas Rules of Civil Procedure, the sum
of $5,000.00 is an appropriate sanction against JONATHAN and his
attorney, [].
18. Any finding of fact that is a conclusion of law shall be deemed a
conclusion of law.
Conclusions of Law
19. The 418th Judicial District Court of Montgomery County, Texas
has jurisdiction over the parties and the matter made the basis of this
suit.
20. JONATHAN’s Application in this matter involved the same parties
and the same claims that were raised (or that could have been raised) in
JONATHAN’s Application in Cause No. 2024-59639, in which a final
judgment was rendered.
21. Res judicata and/or collateral estoppel precluded JONATHAN from
relitigating th[e] allegations he previously raised (or that could have
been raised) in Cause No. 2024-59639.
22. JONATHAN failed to meet his burden of proof regarding any
alleged family violence that had occurred since November 12, 2024.
23. JONATHAN’s Application filed in this matter should be denied.
24. JONATHAN’s Application (and the attached Affidavit and Affidavit
of Abuse) filed in this matter, was/were groundless, brought in bad faith
and/or brought for the purpose of harassment.
25. Pursuant to Rule 13 of the Texas Rules of Civil Procedure, the sum
of $5,000.00 is an appropriate sanction against JONATHAN and his
attorney, [].
26. Any conclusion of law that is a finding of fact shall be deemed a
finding of fact.
SIGNED on July 15, 2025.
Jonathan did not amend his Motion for New Trial. He timely filed a Notice of
Appeal on July 18, 2025, appealing the trial court’s Order “signed on May 28, 2025.”
22
Issues on Appeal
On appeal, Jonathan states four issues. In his first issue, Jonathan asks whether
the trial court’s exclusion of “abuse-history evidence coupled with rulings that
curtailed cross-examination constituted reversible error because it prevented the
court from properly evaluating danger, credibility, and the statutory prerequisites for
a protective order.” In his second, third, and fourth issues, Jonathan challenges the
trial court’s award of sanctions. Specifically, in his second issue, Jonathan asks
“[d]id the court err by imposing sanctions absent non-conclusory findings of bad
faith or harassment[.]” In his third issue, Jonathan asks “[w]hether the trial court
abused its discretion by imposing sanctions where counsel acted in good faith, the
court improperly blocked evidence of recent family violence, uncontroverted
testimony satisfied the statutory definition of family violence, and the record
contains no findings or evidence of bad faith for a ‘just’ sanction under
TransAmerican, GTE, Low, or Nath.” And, in his fourth issue, Jonathan asks “[i]s
the fee award legally insufficient where Appellee offered no hours, no task detail,
no records—only a rate and a lump-sum request—and admitted no written time
exhibit[.]”
Analysis
Before we discuss the issues raised by Jonathan, we note that on appeal
Jonathan does not challenge any specific items in the trial court’s Findings of Fact
23
and Conclusions of Law. An appellant who challenges the sufficiency of the
evidence offered in a nonjury trial must challenge specific findings of fact and failure
to do so generally waives a factual sufficiency challenge. See Green v. Alford, 274
S.W.3d 5, 17 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (citing Zagorski
v. Zagorski, 116 S.W.3d 309, 319 (Tex. App.—Houston [14th Dist.] 2003, pet.
denied) (“[A]n appellant challenging the sufficiency of the evidence offered in a
nonjury trial must challenge specific findings of fact.”)). Unchallenged findings of
fact are binding on an appellate court unless the contrary is established as a matter
of law or there is no evidence to support the finding. Zagorski, 116 S.W.3d at 319.
Issue One—Denial of Protective Order
In his first issue, Jonathan complains about the admission or exclusion of
evidence at the hearing, and ordinarily we review a trial court’s decision regarding
the admission or exclusion of evidence under an abuse of discretion standard of
review. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995) (“The
admission and exclusion of evidence is committed to the trial court’s sound
discretion.”) (citing Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.
1989)). “A trial court abuses its discretion when it acts without regard for any
guiding rules or principles.” Id. at 754 (citing Downer v. Aquamarine Operators,
Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)). Jonathan argues that the trial court erred
in the exclusion of “abuse-history evidence coupled with rulings that curtailed cross24
examination constituted reversible error because it prevented the court from properly
evaluating danger, credibility, and the statutory prerequisites for a protective order.”
That said, Jonathan does not specify with citations to the record the specific rulings
he challenges. We assume he is complaining about the trial court’s rulings that
specifically did not allow him to retry the same allegations he made in his
unsuccessful Application for a Protective Order in Harris County. On this record,
for the reasons outlined below, we conclude that the trial court did not abuse its
discretion in ruling that Jonathan could not seek to retry the same claims of family
violence.
Next, to the extent Jonathan is otherwise making a challenge to the legal
sufficiency of the evidence to support the trial court’s decision to deny the protective
order under the family code, 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, as a matter of law, all vital facts in support of
the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). In conducting
our review of the sufficiency of the evidence, the trial judge, as fact finder, was the
sole judge of the credibility of the witnesses and the weight to be given their
testimony. Darocy v. Abildtrup, 345 S.W.3d 129, 136 (Tex. App.—Dallas 2011, no
pet.). We may not substitute our judgment for the fact finder’s, even if we would
have reached a different conclusion. Id. This Court is not a finder of fact. Id. When
25
conducting our legal sufficiency review, we disregard all evidence that a reasonable
fact finder could have disbelieved or found to have been incredible. In re J.F.C., 96
S.W.3d 256, 266 (Tex. 2002). When conducting a legal sufficiency review, we
consider the evidence in the light most favorable to the appealed order and indulge
every reasonable inference that supports it. City of Keller v. Wilson, 168 S.W.3d 802,
822 (Tex. 2005); Ford v. Harbour, No. 14-07-00832-CV, 2009 Tex. App. LEXIS
1796, at *6 (Tex. App.—Houston [14th Dist.] March 17, 2009, no pet.) (mem. op.).
Evidence is legally sufficient if it would enable reasonable and fair-minded people
to reach the decision under review. City of Keller, 168 S.W.3d at 827. We credit
favorable evidence if a reasonable fact-finder could and disregard contrary evidence
unless a reasonable fact-finder could not. Id. The trier of fact is the sole judge of a
witness’s credibility and the weight to be given to a witness’s testimony. Id. at 819;
Teel v. Shifflett, 309 S.W.3d 597, 603 (Tex. App.—Houston [14th Dist.] 2010, pet.
denied). A court shall render a protective order if the court finds that family violence
has occurred. Tex. Fam. Code Ann. §§ 81.001, 85.001. Family
violence includes “an act by a member of a family or household against another
member of the family or household that is intended to result in physical harm, bodily
injury, assault, or sexual assault or that is a threat that reasonably places the member
in fear of imminent physical harm, bodily injury, assault, or sexual assault… .” Tex.
Fam. Code Ann. § 71.004(1).
26
Considering the record before us and the evidence in the light most favorable
to the appealed order and indulging every reasonable inference that supports it, as
we must, we conclude that the evidence is legally sufficient to support the trial
court’s denial of the protective order. Jonathan failed to prove as a matter of law all
vital facts in support of the issue. See Dow Chem. Co., 46 S.W.3d at 241. Jonathan
and his attorney admitted at the hearing that he was relying on the exact same
evidence and exhibits that he had used at the Harris County proceeding, and that his
alleged family violence allegations he made in the Application he filed in
Montgomery County contains the same allegations he made in the Application he
filed in Harris County. The trial court gave Jonathan and his attorney an opportunity
to offer evidence of any family violence that he alleged had occurred after November
12, 2024, and all Jonathan referenced was 1) two occasions, once in November and
once in January, when Kirsten was present at the school when he picked up their
son, which he says was intimidating just because she was present, even though her
presence would be expected because she works at the school, and 2) once in
December when he was late to an exchange to pick up their son in the parking lot of
the police station and she allegedly “bang[ed] on my window of my car[,]” yet
Jonathan agreed she returned to her car and the exchange of the child proceeded
without further problems.
27
It is undisputed that the Harris County District Court issued a final Order
denying Jonathan any relief, which he admits he did not appeal. Additionally, at trial
Jonathan failed to articulate any reason why res judicata does not bar his claim with
respect to the allegations of family violence that were part of the Harris County
proceeding. On appeal, Jonathan also does not challenge the trial court’s conclusion
that his allegations of family violence as outlined in the Application in this case are
barred by res judicata. The trial court could have reasonably concluded that the
allegations Jonathan made at trial regarding events he claimed that occurred after
November 12, 2024, did not constitute “family violence” as defined under the
pertinent statute. We overrule Jonathan’s first issue.
Issues Two, Three, and Four—Sanctions
Because each of these issues challenges the imposition of the $5,000 sanction,
we consider them together. The imposition of sanctions is reviewed under an abuse
of discretion standard. Nath v. Tex. Children’s Hosp., 446 S.W.3d 355, 361 (Tex.
2014) (citing Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007)). We cannot hold that
a trial court abused its discretion in awarding sanctions when there is some evidence
that supports the trial court’s ruling. Id. A trial court abuses its discretion when its
decision is contrary to the only permissible view of the evidence. Unifund CCR
Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 2009) (per curiam). “In assessing
sanctions, the trial court is entitled to consider the entire course of the litigation.”
28
Broesche v. Jacobson, 218 S.W.3d 267, 277 (Tex. App.—Houston [14th Dist.] 2007,
pet. denied). Before a court may exercise its discretion to shift attorney’s fees as a
sanction, there must be some evidence of reasonableness because without such proof
a trial court cannot determine that the sanction is “no more severe than necessary”
to fairly compensate the prevailing party. PR Invs. & Specialty Retailers, Inc. v.
State, 251 S.W.3d 472, 480 (Tex. 2008) (quoting TransAmerican Nat. Gas Corp. v.
Powell, 811 S.W.2d 913, 917 (Tex. 1991)); see also Low, 221 S.W.3d at 620 (“[A]
sanction cannot be excessive[,] nor should it be assessed without appropriate
guidelines.”). “Consequently, when a party seeks attorney’s fees as sanctions, the
burden is on that party to put forth some affirmative evidence of attorney’s fees
incurred and how those fees resulted from or were caused by the sanctionable
conduct.” CHRISTUS Health Gulf Coast v. Carswell, 505 S.W.3d 528, 540 (Tex.
2016).
Kirsten’s attorney testified as to her qualifications, hourly rate, and the total
amount she believed was reasonable and necessary to defend against Jonathan’s
groundless filing in Montgomery County. She did not itemize the tasks performed,
identify approximately when she performed those tasks, or testify concerning the
time required to perform the specific tasks. See Advanced Tech. Transfer &
Intellectual Prop. Grp. LLC v. Krenek, 627 S.W.3d 540, 547 (Tex. App.—Houston
[14th Dist.] 2021, no pet.) (considering attorney’s testimony concerning fees in
29
absence of billing records); El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 763 (Tex.
2012) (holding that time estimates based on generalities about tasks performed
provided insufficient information for a factfinder to meaningfully review whether
tasks and hours were reasonable and necessary). No time records were provided.
Kirsten bore the burden of presenting evidence supporting her request for attorney’s
fees as sanctions and she was required to provide sufficient evidence for the trial
court to meaningfully evaluate the reasonableness and necessity of the fees
requested. While this could have been done without billing records, the Texas
Supreme Court has “strongly encouraged” the use of billing records to prove the
reasonableness and necessity of attorney’s fees. See Rohrmoos Venture v. UTSW
DVA Healthcare, LLP, 578 S.W.3d 469, 502 (Tex. 2019); El Apple I, 370 S.W.3d at
761; see also Milliken v. Turoff, No. 14-19-00761-CV, 2021 Tex. App. LEXIS 4188,
at *8 (Tex. App.—Houston [14th Dist.] May 27, 2021, no pet.) (mem. op.).
Under Rule 13, when an attorney or party signs a pleading, motion, or other
paper, it constitutes
a certificate by them that they have read the pleading, motion, or other
paper; that to the best of their knowledge, information, and belief
formed after reasonable inquiry the instrument is not groundless and
brought in bad faith or groundless and brought for the purpose of
harassment. . . . If a pleading, motion or other paper is signed in
violation of this rule, the court, upon motion or upon its own initiative,
after notice and hearing, shall impose an appropriate sanction . . . upon
the person who signed it, a represented party, or both.
30
Courts shall presume that pleadings, motions, and other papers are filed
in good faith. No sanctions under this rule may be imposed except for
good cause, the particulars of which must be stated in the sanction
order. “Groundless” for purposes of this rule means no basis in law or
fact and not warranted by good faith argument for the extension,
modification, or reversal of existing law.
Tex. R. Civ. P. 13.
Jonathan argues that he and his attorney filed the Application against Kirsten
in “good faith,” that his allegations of “family violence” were unrebutted, and that
he should not have been sanctioned because the trial court failed to make sufficient
findings that he filed the Application in Montgomery County in bad faith or for the
purpose of harassment. We conclude that the trial court did not abuse its discretion
by granting Kirsten’s motion for sanctions.
We review the imposition of sanctions for an abuse of discretion. Low, 221
S.W.3d at 614. “Chapters 9 and 10 of the Texas Civil Practice and Remedies Code
and Rule 13 of the Texas Rules of Civil Procedure allow a trial court to sanction an
attorney or party for filing motions or pleadings that lack a reasonable basis in fact
or law.” Id. Here, the Application lacked a reasonable basis in law or fact because
the Application had already been determined against Jonathan in a final judgment
by the Harris County trial court in the November 12, 2024 proceeding. The Harris
County trial court proceeding was based on the same allegations of alleged family
violence that are contained in the affidavit and Application filed in Montgomery
County. While it is true that during the hearing in Montgomery County, Jonathan
31
and his attorney verbally argued there were additional acts of “family violence” that
had occurred after November 12, 2024, the allegations he made in his Application
and affidavits in Montgomery County are identical to what was alleged in the
application and documents he filed in Harris County. Moreover, Jonathan and his
attorney admitted that the specific allegations in the Harris County application match
what was alleged in the Application in Montgomery County. Filing repetitious
lawsuits is grounds for sanctions. See Hatton v. Grigar, No. 01-09-00588-CV, 2011
Tex. App. LEXIS 1243, at *13 (Tex. App.—Houston [1st Dist.] Feb. 17, 2011, pet.
denied) (mem. op.) (affirming award of sanctions where suit was barred by res
judicata); Pope v. Gaffney, No. 04-05-00763-CV, 2006 Tex. App. LEXIS 5788, at
*8 (Tex. App.—San Antonio July 5, 2006, pet. dism’d w.o.j.) (mem. op.) (affirming
award of sanctions “for the filing of this cause of action when it had already been
tried once[]”). We cannot say the trial court erred in concluding that the Application
Jonathan filed in Montgomery County was groundless, brought in bad faith, and for
the purpose of harassment in violation of Rule 13. See Tex. R. Civ. P. 13.
Jonathan’s attorney was the same in both the Harris County proceeding and
the Montgomery County proceeding. The record shows that the Harris County
District Court denied Jonathan’s Application based on the same allegations of family
violence, and that he refiled the same affidavit with the same allegations in
Montgomery County, and his stated purpose was to try and get the Montgomery
32
County court to give him relief on the same alleged acts of violence after a Harris
County District Court found no basis for a protective order, and after he failed to
appeal that decision. Accordingly, the trial court did not err in finding that res
judicata barred the allegations made in the Application and that sanctions were
appropriate. Accordingly, we overrule issues two and three.
As to issue four, Jonathan contends that the evidence is legally insufficient to
support the amount of $5,000 as a sanction because Kirsten’s attorney failed to
provide sufficient detailed time records and evidence in accordance with the
requirements of controlling caselaw. In Nath, the Texas Supreme Court stated:
We have recently clarified the legal and evidentiary requirements to
establish a reasonable attorney’s fee in a fee-shifting situation. [Citing
to Rohrmoos]2. Although this case deals with attorney’s fees awarded
through a sanctions order, the distinction is immaterial because all feeshifting situations require reasonableness.
Nath v. Tex. Children’s Hosp., 576 S.W.3d 707, 709-710 (Tex. 2019).
We note that Kirsten’s attorney testified that she personally prepared the
Motion for Sanctions and obtained the exhibits attached to the motion, that she had
traveled to the court from Harris County, spent more than two hours at the hearing,
and that as a double board-certified attorney her reasonable and customary billable
2
In Rohrmoos, the Texas Supreme Court addressed the recovery and
calculation of attorney’s fees, and the nature of the evidence required for a recovery. See Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 483-84 (Tex. 2019).
33
rate is $450 an hour. That said, Kirsten’s attorney did not provide testimony as to
the amount of time she spent on preparing the motion for sanctions, the amount of
time spent on preparing for the hearing nor did she provide a breakdown of how she
arrived at a request for $5,000 in fees. As the party seeking to shift attorney’s fees
as a sanction, the requesting party must provide sufficient evidence to support the
reasonableness and necessity of the fee. Nath, 576 S.W.3d at 710. We find on this
record that the attorney’s testimony is insufficient evidence to support the amount
of the sanction that was awarded, so we sustain issue four in part and we remand the
sanctions award to the trial court for the trial court to hear or receive additional
evidence to support the calculation of the sanction award in an amount that is
consistent with this opinion. See id.
AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.
LEANNE JOHNSON
Justice
Submitted on August 14, 2026
Opinion Delivered August 31, 2026
Before Golemon, C.J., Johnson and Wright, JJ.
34