Office of the Attorney General of the State of Texas v. Cheryl L. Phillips

Affirmed and Memorandum Opinion filed April 6, 2004 Affirmed and Memorandum Opinion filed April 6, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-03-01040-CV ____________ OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF TEXAS, Appellant V. CHERYL L. PHILLIPS, Appellee On Appeal from the County Court at Law Walker County, Texas Trial Court Cause No. 5408 M E M O R A N D U M   O P I N I O N Appellant, the Office of the Attorney General of the State of Texas, appeals from a trial court=s order requiring it to pay the attorney of appellee, Cheryl L. Phillips, attorney=s fees of $3,200.00. In conjunction with her response, appellee files a motion for sanctions for filing an appeal that is frivolous, unreasonable, without foundation, groundless, brought in bad faith, or brought for the purpose of harassment; she requests that this Court enter an order sanctioning appellant for its conduct in bringing and executing this appeal, and order appellant to pay her costs and reasonable attorney fees of $7,805.00. Because we find appellant failed to properly preserve error below, we affirm the trial court=s order. We also deny appellee=s motion for sanctions. The parties are familiar with the facts of the dispute and we will not repeat them here. In a single issue, appellant contends the trial court improperly assessed attorney=s fees against it in contravention of Texas Family Code section 231.211, which provides in part as follows: AAt the conclusion of a Title IV‑D case, the court may assess attorney=s fees and all court costs as authorized by law against the nonprevailing party, except that the court may not assess those amounts against the Title IV‑D agency . . . that has entered into a contract under this chapter or any party to whom the agency has provided services under this chapter.@ The office of the attorney general is designated as this state=s Title IV‑D agency. See Tex. Fam. Code ' 231.001. Appellant further contends that the attorney=s fee award cannot be sustained as a sanction because the order does not state with particularity good cause for the sanction. See Tex. R. Civ. P. 13 (ANo sanctions under this rule may be imposed except for good cause, the particulars of which must be stated in the sanctions order.@). However, the record shows that at no time did appellant object below to the award of attorney=s fees on the basis that it was precluded by Family Code section 231.211, or on any other basis. An issue for appeal based on a trial court=s ruling must be supported by a showing in the record that the motion, request, or objection was presented to and acted upon by the trial court. See Guyot v. Guyot, 3 S.W.2d 243, 246 (Tex. App.CFort Worth 1999, no pet); Tex. R. App. P. 33.1(a). A party may not waive, consent to, or neglect to complain about an error at trial and then surprise his opponent on appeal by stating his complaint for the first time. Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982). In support of its assertion that it cannot be made liable for attorney=s fees, appellant cites Attorney General of Texas v. O=Quinn, 938 S.W.2d 542 (Tex. App.CBeaumont 1997, no writ), but in that case, error preservation was not an issue. See id. at 543 (noting the State alleged in motion for new trial that assessment of attorney=s fees and costs against the attorney general was prohibited by statute). Appellant does not dispute that it failed to properly preserve error, and it makes no argument that it is entitled to the relief it seeks despite its failure to comply with the rules of appellate procedure. Appellant does not contend that this is a case of fundamental error, or provide any reason why Rule of Appellate Procedure 33.1 should not apply. Appellant failed to properly preserve error. Consequently, we overrule appellant=s issue. Appellee argues for sanctions on the basis that appellant filed its appeal when its issue was not preserved for appeal, and suggests that appellant deliberately drafted the written order for the trial court=s signature in such a way as to prevent or discourage the trial court from entering a sustainable sanction order for the attorney=s fees. Additionally, appellee points out that appellant failed to order and pay for a transcription of the hearing in which the trial court entered its ruling, in an attempt to limit the record on appeal to the allegedly faulty written order appellant had itself prepared. We have carefully considered appellee=s arguments in her motion and response brief; nevertheless, we do not find that sanctions are warranted. We therefore deny appellee=s motion for sanctions. The judgment of the trial court is affirmed. /s/ Wanda McKee Fowler Justice Judgment rendered and Memorandum Opinion filed April 6, 2004. Panel consists of Justices Fowler, Edelman, and Seymore.