Perla Ines Gutierrez v. Ruben Oscar Gutierrez, 04-20-00083-CV

Background

Perla Gutierrez hired attorney Marcel Notzon to pursue a divorce from Ruben Gutierrez; Ruben was represented by Martha Cigarroa and was incarcerated, slowing the case.
The parties signed a Rule 11 agreement; Notzon filed an “Agreed Final Decree” signed only by Perla and Notzon and the court signed it.
On December 19, 2019 Notzon filed a $25,000 motion for sanctions against Cigarroa alleging she lied about a jail visit; Cigarroa responded by serving subpoenas and by filing a motion to quash plus a motion for sanctions (Ruben’s first motion for sanctions) on December 27 seeking fees.
Notzon served a subpoena duces tecum on Ruben; Notzon then filed a Notice of Passing on January 3, 2020 indicating he would not proceed with the January 6 hearing on his motion.
At the January 6 hearing the court found all three motions for sanctions were set, questioned whether Notzon had client authority to file/urge the $25,000 motion or subpoena, concluded Ruben need not comply with the subpoena as requests were irrelevant/moot/privileged, and ordered Notzon to pay Cigarroa $3,000 in attorney’s fees.

Issues

Issue	Plaintiff's Argument (Notzon)	Defendant's Argument (Ruben)	Held
Whether a movant can unilaterally "pass"/withdraw a motion once set for hearing	Notzon: He had the right to unilaterally pass the hearing on his motion; he did not nonsuit and only sought to delay the hearing.	Ruben: He filed affirmative relief (motion for sanctions) before Notzon’s Notice of Passing, so Notzon could not avoid Ruben’s responsive claims.	Court: Overruled Notzon. Because Ruben sought affirmative relief before the Notice of Passing, the court did not abuse its docket control in requiring the hearing to proceed.
Whether Notzon was denied notice/due process when sanctions were considered	Notzon: Ruben’s sanctions were filed the morning of the hearing; Rule 21’s three‑day notice was not satisfied and Notzon had inadequate time to prepare.	Ruben: Ruben’s first motion for sanctions was filed Dec. 27—more than three days before the Jan. 6 hearing—and responsive motions to a timely set matter may be heard together.	Court: Overruled Notzon. Ruben’s first motion complied with Rule 21 timing and the court had discretion to consider responsive motions together.
Whether the judge acted as an advocate (improperly coaching or directing presentation)	Notzon: The court instructed him how to present the case, demanded he call his client on the phone, and prevented him from calling Cigarroa as witness, harming his defense.	Ruben: The court was attempting to determine who authorized the $25,000 motion, manage the hearing efficiently, and protect witnesses from harassment.	Court: Overruled Notzon. The court’s evidentiary control and questions did not constitute reversible judicial impropriety and Notzon suffered no demonstrated harm.

Key Cases Cited

Rogers v. Clinton, 794 S.W.2d 9 (Tex. 1990) (discusses plaintiff’s nonsuit and analogous right to withdraw motion)
BHP Petroleum Co. v. Millard, 800 S.W.2d 838 (Tex. 1990) (limits nonsuit when defendant has asserted affirmative relief)
Landis v. N. Am. Co., 299 U.S. 248 (1936) (trial courts’ broad docket‑management authority)
Tex. Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31 (Tex. 2008) (party cannot nonsuit to avoid another party’s claim)