                                        i S DVV i
                        COURTJ
                         S iAi t

                         2Q!UAH2i kHS^U

  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                    No. 69248-8-1
                     Respondent,
                                                    DIVISION ONE
   v.

MICHAEL THANH DONERY,                               UNPUBLISHED OPINION

                     Appellant.                     FILED: January 21, 2014

        Leach, C.J. — Michael Donery appeals his conviction for one count of

malicious harassment, alleging insufficient evidence and instructional error.   Based

on our independent review of the record, we conclude it includes evidence sufficient

to establish that Donery threatened a corrections officer because of her race and that

his communications constituted a "true threat." Donery fails to demonstrate any error

in the challenged instructions, and the arguments in his statement of additional

grounds are without merit. We affirm.

                                        FACTS

        In March 2012, Michael Donery was incarcerated in Four North, a maximum

security unit at the Snohomish County Jail. Each of the single-inmate cells in Four

North has a metal door with a window at a height of about five feet and a combined
No. 69248-8-1 / 2

food slot and cuff port.    Ventilation slots in the door permit corrections officers to

communicate with the inmates without opening the door.

       Inmates in Four North are permitted out of their cells for recreation for one

hour per day and are not allowed to have direct contact with other inmates. Inmates

may have only a limited amount of clothing and personal items in the cells.

       On March 8, 2012, Corrections Deputy Shah Sigh was working the swing shift

in Four North. Officer Sigh is black; the other corrections officers in the unit that

evening were white.

       At about 9:30 p.m., Sigh noticed Donery wearing vinyl gloves and wiping down

the cell wall with a rag.        Donery, who was not permitted to have these items,

repeatedly refused to tell Sigh where he had gotten them.          When Sigh directed

Donery to give her the gloves and rag, he flushed them down the toilet. According to

Sigh, inmates regularly cause flooding in the cells and adjacent areas by obstructing

the toilets and then flushing.

       Sigh called her supervisor. Sergeant Sweeney and Deputy Ray responded

and moved Donery so that Sigh could search his cell. Donery had been in his new

cell for less than five minutes when the toilet overflowed and water began flowing out

of the cell.
No. 69248-8-1 / 3

       Sigh requested the assistance of inmate workers, who cleaned up the water in

the common areas but were not allowed into the occupied cells. The inmate workers

returned after the toilet in Donery's cell overflowed a second time.          The inmate

workers finished cleaning up shortly before Sigh's shift ended at midnight. By 11:00

a.m. on the following morning, maintenance workers had discovered the source of

the blockage and determined that it was caused by other inmates.

       Almost immediately after his toilet overflowed for the first time, Donery began

complaining that Sigh was keeping him in a wet cell and yelling threats and racial

insults at her.     Donery threatened to obtain personal information about Sigh,

including her home address and work schedule. He also threatened to terrorize and

kill her and her children. The threats continued virtually uninterrupted until Sigh left at

the end of her shift. Sigh found the threats "overwhelming" and feared that Donery

would be able to carry them out.

       Sergeant Bernard Moody, the unit supervisor for the graveyard shift, began

work at midnight. Moody heard Donery yelling and went to investigate. By the early

morning hours of March 9, Moody had confirmed the presence of water in Donery's

cell and arranged for him to be moved to a dry cell. Donery did not direct any racial

insults at Moody, who is African American.

                                             -3-
No. 69248-8-1 / 4

      Sigh returned to Four North for her shift on the afternoon of March 9. As she

walked by Donery's cell, he resumed yelling racial insults and threats to kill her. For

purposes of her report, Sigh wrote down the statements that Donery yelled at her

during the course of the evening:

      White power. Nigger. Nigger bitch. Hang from the noose. Heil Hitler.
      Karma is a bitch. I'm going to terrorize your nigger ass all night. I hate
      niggers. If you ain't white, you ain't right. If I got to stir shit up, I'm
      going to stir shit up. I'll knock her nigger ass out. Fuck that nigger
      bitch. I'm going to get your license plate and your address. I know
      people in the DMV. How do you like that, nigger? Hostile workplace,
      nigger bitch. Get off the tier, nigger bitch. I'm going to terrorize that
      nigger. Bug-eyed nigger bitch. That nigger bitch going to get smashed.
      You're going to get yours, nigger. It's a matter of Goddamn time. Fat-
      ass jiggaboo. Shit nigger bitch.

      Donery made similar comments to several jail employees and complained that

Sigh had left him in "shit water."   Maria Moore, a classifications counselor, found

Donery highly agitated and pacing back and forth in his cell. He was yelling,

      [K]eep that nigger bitch away from me. I don't care if I get another
      charge. You know, people—that nigger bitch disrespected me by
      putting me in a cell with shit water. That gets people killed in
      prison. ... I don't care if I get another charge. I'll kill that nigger bitch
      for disrespecting me. That nigger bitch pushes my buttons. ... I hate
      niggers.

      Corrections Deputy Chad         Matthews     heard   Donery yell the following

comments:

      Fuck that nigger bitch Sigh. I know people on the outside. I'm going to
      get your first name and that's all I'll need. Technology is a bitch.
      Please charge me. I will get your first and last names on it. And that's
No. 69248-8-1 / 5

      all I will need. I will have every last pig's names. Tell that sergeant to
      charge me. Houses, homes, families. That ain't no threat. That's a
      motherfucking promise. Burn them niggers. Check my record for
      custodial assaults. I don't fuck around. You guys don't know who
      you're fucking with. I stabbed a nigger on the streets in the fucking
      chest. Bug-eyed nigger bitch. These guys done fucked with the wrong
      motherfucker. Your Goddamn ugly-ass bug-eyes nigger bitch. I've
      done 15 years. I don't fucking care. Fat-ass jiggaboo nigger shit nigger
      bitch. They have nigger kids and shit, you know. I'll have your first and
      last name Sigh. Two websites and I will have your shit, you dumb
      nigger bitch. These fuckers are dumb. They park out by the
      courthouse in the parking garage and right below us here. Why are you
      supporting that nigger bitch?

       Sergeant Bates contacted Donery to determine why he was yelling. Donery

calmly explained his hatred of blacks to Bates. When Bates disagreed with Donery's

theories, Donery resumed screaming racial epithets directed at Sigh.         As Bates

walked away, Donery warned him "to keep Sigh away from him, otherwise he was

going to assault her, beat her up." When Bates replied that Sigh would be going

wherever she needed to, Donery added, "Well, Bates, if she comes near me, the

custodial assault will be on you."

       Sigh felt "[terrorized" and "very, very overwhelmed" by Donery's insults and

threats and his intention to track down her address.     She believed that "he would

make good on what he said he was going to do." Donery did not direct threats or

racially derogatory comments at any other corrections officers on March 9.

       The State charged Donery with two counts of malicious harassment, one for

the incident on March 8, 2012 (count I), and one for the incident on March 9, 2012
No. 69248-8-1 / 6

(count II). The jury acquitted Donery on count I and found him guilty as charged on

count II.

                                      ANALYSIS

Sufficiency of the Evidence

       Donery challenges the sufficiency of the evidence to support his conviction for

malicious harassment. He argues the State failed to prove that he threatened Deputy

Sigh because of her race or that his speech constituted a "true threat."

       Because the crime of malicious harassment implicates First Amendment

rights, an appellate court must undertake an independent examination of the entire

record to ensure that the conviction "does not constitute a forbidden intrusion into the

field of free expression."1 But our independent review involves only "crucial facts,

that is, those facts so intermingled with the legal question that it is necessary to

analyze them in order to pass on the constitutional question."2 We defer to the trier of

fact on matters of credibility.3

       In order to convict Donery of malicious harassment, the State must prove that

he threatened Deputy Sigh "because of'4 his perception of her race or color. He

    1State v. Locke. 175 Wn. App. 779, 790, 307 P.3d 771 (2013), petition for review
filed, No. 89310-1 (Wash. Sept. 25, 2013).
    2Locke. 175 Wn. App. at 790.
    3 State v. Johnston, 156 Wn.2d 355, 365-66, 127 P.3d 707 (2006).
    4RCW9A.36.080(1).
No. 69248-8-1 / 7

argues that the evidence established only that he was angry because Sigh left him in

an unsanitary cell.

       Although Donery initially became angry when Sigh failed to move him to a

different cell on the evening of March 8, 2012, Sergeant Moody arranged a dry cell

for him during the early morning hours of March 9. Consequently, when Sigh arrived

for her shift at 4:00 p.m., Donery had been in a dry cell for a substantial amount of

time. Nonetheless, he immediately resumed yelling physical threats at Sigh. The

relentless stream of racial epithets that accompanied Donery's threats and the fact he

did not direct similar threats to white corrections officers constituted circumstantial

evidence that racial bias motivated his threats.5

       Citing State v. Read,6 Donery argues that the evidence was insufficient

because he did not accompany his words with aggressive physical gestures or

movements.      In Read, the court concluded that the defendant's racial epithets,

accompanied by his aggressive physical confrontation, were sufficient to establish

that he threatened the victim "because of her race.7         But although the relevant

   5 State v. Johnson, 115 Wn. App. 890, 898, 64 P.3d 88 (2003) (defendant's slurs
and threats were circumstantial evidence of gender bias); see also State v. Tallev,
122 Wn.2d 192, 211, 858 P.2d 217 (1993) ("utterances by the defendant may offer
circumstantial evidence of discrimination or victim selection").
    6 163 Wn. App. 853, 261 P.3d 207 (2011), review denied, 173 Wn.2d 1021
(2012), cert, denied, 133 S. Ct. 176 (2012).
    7 Read, 163 Wn. App. at 870.
No. 69248-8-1 / 8

evidence in Read included the defendant's statements and physical conduct, nothing

in the court's analysis suggested that both words and conduct are required to

establish victim selection. Donery's reliance on Read is therefore misplaced.

       Because it acquitted Donery for the incident on March 8, the jury may well

have accepted his claim that he was merely angry because Sigh did not move him to

a dry cell. But the evidence was sufficient to permit a rational trier of fact to reject

that explanation for Donery's actions on March 9 and find that he threatened Sigh

because of his perception of her race or color.

       Donery also contends that the State failed to prove that his communications to

Sigh constituted a "true threat." To avoid violating the First Amendment, a statute

criminalizing threatening language must be construed "as proscribing only

unprotected true threats."8 A true threat is "'a statement made in a context or under

such circumstances wherein a reasonable person would foresee that the statement

would be interpreted ... as a serious expression of intention to inflict bodily harm

upon or to take the life' of another person."9 Even if couched in the language of

threats, communications are not true threats ifthey are in fact "merely jokes, idle talk,

    8 State v. Allen, 176 Wn.2d 611, 626, 294 P.3d 679 (2013).
    9 Allen, 176 Wn.2d at 626 (alteration in original) (internal quotation marks
omitted) (quoting State v. Kilburn, 151 Wn.2d 36, 43, 84 P.3d 1215 (2004)).

                                            -8-
No. 69248-8-1 / 9

or hyperbole."10 Words alone do not constitute malicious harassment "unless the

context or circumstances surrounding the words indicate the words are a threat."11

       Whether a statement constitutes a true threat necessarily rests on the specific

facts and circumstances of the case.12       The existence of a true threat does not

depend on the subjective intent of the speaker.13 "It is enough that a reasonable

speaker would foresee that the threat would be considered serious."14

       During the evening of March 9, Donery repeatedly made specific and personal

threats to injure or kill Sigh.   Donery communicated those threats not only to Sigh

personally but also to several other jail employees.         He identified the methods he

would use to obtain the personal information about Sigh that would allow him to track

her down and carry out the threats, including the possible assistance of persons

outside the jail. Donery further underscored the seriousness of his threats by alleging

that he had previously stabbed a person and that he was not concerned about any

additional incarceration after he carried out the threats.

    10 State v. Schaler, 169 Wn.2d 274, 283, 236 P.3d 858 (2010).
    11 RCW9A.36.080(1)(c).
    12 See State v.C.G.. 150 Wn.2d 604, 611, 80 P.3d 594 (2003).
    13 See Kilburn. 151 Wn.2d at 48.
    14 Schaler, 169 Wn.2d at 283.
No. 69248-8-1/10

       In State v. Kilburn,15 cited by Donery, the defendant told an acquaintance that

he was going to bring a gun to school "'and shoot everyone and start with you.'" In

concluding that a reasonable person would not foresee that the alleged victim would

interpret the statement as a serious threat, the court relied primarily on

       [the defendant's] past relationship [with the alleged victim], his having
       joked with her and his other friend in the class before, the discussion
       that had been taking place about the books they were reading and his
       laughing or giggling when he made the comments.1161
Here, unlike Kilburn, Donery and Sigh did not have a lengthy, amicable past

relationship that suggested Donery was merely joking.

       Donery contends no reasonable person could have taken his threats seriously

because he had no ability to carry them out from his maximum security jail cell.17

Although the general movement of inmates in Four North is restricted, Donery

retained his privileges to receive visitors. In addition, the evidence established that

inmates could grab and assault custodial staff when the cuff ports were opened to

serve the food trays. Some inmates would throw water, urine, or other materials at

officers through the ports. At one point during his tirade, Donery announced that he

    15 151 Wn.2d 36, 39, 84 P.3d 1215 (2004).
    16 Kilburn, 151 Wn.2dat53.
    17
       See RCW 9A.36.080(1 )(c) ("Threatening words do not constitute malicious
harassment if it is apparent to the victim that the person does not have the ability to
carry out the threat.").

                                            -10-
No. 69248-8-1 /11

was "notorious for shit-bombing," a practice that involved the throwing of feces and

urine.

         Consequently, despite the tight security in Four North, significant opportunities

remained for inmates to contact and assault jail staff and to arrange for outside

assistance to carry out threats.     Under the circumstances, a reasonable person in

Donery's position would foresee that Deputy Sigh would interpret his statements as a

serious threat to cause her physical harm. The evidence was therefore sufficient to

establish a "true threat."

Jury Instructions

         Donery contends that the trial court committed reversible error when it

modified a proposed instruction to reduce the State's burden of proving every

element of malicious harassment.         He argues that instruction 12 was defective

because it referred only to the requirement that the defendant act intentionally.

Because malicious harassment requires proof that the defendant acted both

intentionally and maliciously, he claims that the instruction effectively eliminated the

State's burden to prove a necessary element. We disagree.

         Relying on State v. Tallev,18 defense counsel proposed the following

instruction: "The intent of the malicious harassment statute is not to punish bigoted

    18 122 Wn.2d 192, 206, 858 P.2d 217 (1993).

                                             -11-
No. 69248-8-1/12

speech or thought, but rather th[e] act of victim selection." The trial court rejected the

proposed instruction as written but gave a revised version:               "The malicious

harassment statute punishes not bigoted speech or thought, but rather those

defendants who act with an intent to target a person because of that person's race or

color."    Defense counsel acknowledged that the court's revised instruction "[said]

basically the same thing . . . [i]n different language" but maintained that the proposed

instruction was "clearer."

          "We review a challenged jury instruction de novo, evaluating it in the context of

the instructions as a whole."19 An instruction that relieves the State of proving every

element of the charged offense requires automatic reversal.20

          Donery does not dispute that instruction 13, the "to convict" instruction, set

forth all of the elements of malicious harassment, including the requirement that "the

defendant acted maliciously and intentionally."           Separate instructions defined

"maliciously" and "intentionally." Nothing in instruction 12 purported to modify in any

manner the State's burden of proving all of the elements in the "to convict"

instruction. Viewed in their entirety, the instructions did not relieve the State of its

burden to prove that Donery acted maliciously.

    19 State v. Pirtle. 127 Wn.2d 628, 656, 904 P.2d 245 (1995).
    20 State v. Brown, 147 Wn.2d 330, 339, 58 P.3d 889 (2002).

                                              -12-
No. 69248-8-1/13

       Donery's contention that instruction 9 reduced the State's burden of proof is

equally unpersuasive. The State was required to establish that Donery threatened

Sigh "because of [his] perception of her race or color."21 Instruction 9 provided,

              "Because of means "by reason of."

             There may be multiple reasons for a defendant's acts. The
       defendant's perception of the person's race or color need not be
       the only or primary reason, but it must be proved to be a reason
       without which the defendant's acts would not have happened.

Defense counsel proposed the first paragraph of the instruction but objected when

the trial court added the second paragraph.

       Donery contends that the second paragraph reduced the State's burden of

proof by permitting the jury to convict him even if it found that his perception of Sigh's

race was only one of several reasons for his actions. But Donery cites no relevant

authority for the proposition that race must be the defendant's sole reason for

selecting a target. In construing the "because of requirement of RCW 9A.36.080(1),

this court has expressly rejected contentions that racial motivation must be "the

primary motivating factor"22 or "at least a substantial factor"23 for the defendant's

conduct. Donery fails to identify any error in instruction 9.

    21 RCW9A.36.080(1).
    22 Read, 163 Wn. App. at 865-66.
    23 State v. Pollard, 80 Wn. App. 60, 68, 906 P.2d 976 (1995).

                                            -13-
No. 69248-8-1 /14

Statement of Additional Grounds for Review

       In his statement of additional grounds for review, Donery contends that the

deputy prosecutor committed misconduct by eliciting testimony that he was currently

incarcerated in jail. He also claims that defense counsel was constitutionally deficient

for failing to object to the testimony.

       In order to convict Donery of malicious harassment, the State was required to

prove, among other things, that his threats placed Deputy Sigh in reasonable fear of

harm.24   Sigh testified that she felt "terrorized" and "overwhelmed" by Donery's

threats. During extensive cross-examination, defense counsel brought out the fact

that for the most part, Donery remained incarcerated in the same high security jail

unit after the incident. Sigh acknowledged that Donery's movements were highly

restricted in the jail and that she continued to work in the same unit and did not

change anything about her "life-style."

       Defense counsel's references to Donery's continued incarceration were clearly

an integral part of the defense's attempt to impeach Sigh's claim of ongoing fear.

Because defense counsel's decision not to object to evidence of Donery's

incarceration was a legitimate trial strategy, it cannot support a claim of ineffective

    24RCW9A.36.080(1)(c).

                                           -14-
No. 69248-8-1/15

assistance.25   Under the circumstances, the deputy prosecutor's reference to

Donery's incarceration was not misconduct.

       Donery also contends that the trial court erred in ruling that his statements to

Snohomish County Deputy Sheriff Marcus Dill were voluntary and admissible.

Donery argues that he was clearly in custody in a jail cell and that Dill was therefore

required to advise him of his Miranda26 rights before asking him any questions.

       Following a CrR 3.5 hearing, the trial court ruled that Donery's statements to

Dill were voluntary and admissible without Miranda warnings. Dill then testified about

his brief encounter with Donery on the evening of March 8, 2012.

       Donery fails to identify the statements that were erroneously admitted or

explain how their admission prejudiced his defense.       Moreover, Dill testified only

about his encounter with Donery on March 8, 2012. The jury acquitted Donery of the

    25 State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011).
    26 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

                                           -15-
No. 69248-8-1/16

offense that allegedly occurred on March 8. Under the circumstances, Donery has

not provided any meaningful basis for this courtto review the alleged error.27

      Affirmed.

                                                     *L,ja
WE CONCUR:

      V?/,/V^AJ ,   .XL                           c^g^e^&^f
    fr

    27 See RAP 10.10(c) (appellate court will not consider statement of additional
grounds for review "if it does not inform the court of the nature and occurrence of
alleged errors").

                                           -16-


       In the United States Court of Federal Claims
                            OFFICE OF SPECIAL MASTERS
                                           No. 13-68V
                                    Filed: February 12, 2015

* * * * * * * * * * * * * * * *                             UNPUBLISHED
LORI SIMPSON                  *
                              *                             Special Master Gowen
           Petitioner,        *
                              *                             Joint Stipulation;
v.                            *                             Attorneys’ Fees and Costs;
                              *
SECRETARY OF HEALTH           *
AND HUMAN SERVICES,           *
                              *
           Respondent.        *
                              *
* * * * * * * * * * * * * * * *

John C. Theisen, Theisen, Bowers & Associates, Fort Wayne, IN, for petitioner.
Lynn E. Ricciardella, United States Department of Justice, Washington, DC, for respondent.

                    DECISION ON ATTORNEYS’ FEES AND COSTS1

        On January 28, 2013, Lori Simpson (“petitioner”) filed a petition pursuant to the National
Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-1 to -34 (2006). Petitioner alleged
that as a result of receiving an influenza (“flu”) vaccine on December 18, 2010, she suffered a
shoulder injury. Petition at ¶¶ 1, 14. On May 8, 2013, respondent filed a Rule 4(c) Report in which
she conceded that petitioner is entitled to compensation in this case. On October 10, 2014, the
undersigned issued a decision on damages, adopting—with no objection from petitioner—

1
  Because this decision contains a reasoned explanation for the undersigned’s action in this case,
the undersigned intends to post this ruling on the website of the United States Court of Federal
Claims, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat.
2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). As provided by Vaccine Rule
18(b), each party has 14 days within which to request redaction “of any information furnished by
that party: (1) that is a trade secret or commercial or financial in substance and is privileged or
confidential; or (2) that includes medical files or similar files, the disclosure of which would
constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b).
2
  The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-1 to -34 (2006) (Vaccine Act or the Act). All citations in this decision to
individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.

                                                1
respondent’s proffer on award of compensation. See Decision on Damages, filed Oct. 10, 2014.

        On February 12, 2015, the parties filed a stipulation concerning attorneys’ fees and costs.
Petitioner requests a total award of attorneys’ fees and costs in the amount of $35,067.00.
Respondent does not object to this amount. Stipulation at ¶ 3. In accordance with General Order
#9, petitioner represents that she personally incurred costs related to this proceeding in the amount
of $213.99. Stipulation at ¶ 4.

       The Vaccine Act permits an award of reasonable attorneys’ fees and costs. 42 U.S.C. § 300
aa-15(e). Based on the reasonableness of petitioner’s motion, the undersigned GRANTS the
request for approval and payment of attorneys’ fees and costs.

       Accordingly, an award should be made as follows:

       (1) in the form of a check jointly payable to petitioner and to petitioner’s attorney, John C.
       Theisen, of Theisen, Bowers & Associates, in the amount of $34,853.01, and

       (2) in the form of a check payable to petitioner only in the amount of $213.99

       In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court SHALL ENTER JUDGMENT in accordance herewith.3

       IT IS SO ORDERED.

                                              s/ Thomas L. Gowen
                                              Thomas L. Gowen
                                              Special Master

3
 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of
notice renouncing the right to seek review.

                                                 2


966 S.W.2d 858 (1998)
Rodman Edward GORMAN, Appellant,
v.
Sharon Elaine GORMAN, Appellee.
No. 01-96-00364-CV.
Court of Appeals of Texas, Houston (1st Dist.).
April 16, 1998.
*861 Clinard J. Hanby, Woodlands, Houston, for Appellant.
Tom Alexander, Vicki L. Pinak, Houston, for Appellee.
Before MIRABAL, WILSON and TAFT, JJ.

OPINION ON MOTION FOR REHEARING
TAFT, Justice.
The appellant has filed a motion for rehearing in this case. We deny the motion, but withdraw our previous opinion and issue this one in its stead in order to address some of the appellant's rehearing arguments. The disposition of the case remains the same.
Rodman Edward Gorman, the settlor of the Gorman Children's Trust (the Trust), a named defendant in the court below and appellant here, appeals from a judgment that:
(1) Granted a summary judgment in favor of the appellee, Sharon Elaine Gorman, his former wife and also a named defendant in the court below, which in essence invalidated the Trust or found that it had been revoked if it ever existed, and awarded her "the cash residue from the bankruptcy court amounting to the funds deposited in the trial court's registry."
(2) As a sanction under Tex.R.Civ.P. 13 and/or pursuant to the declaratory judgment act under which Mrs. Gorman cross-claimed, awarded attorney's fees in favor of Mrs. Gorman and against Robert L. Silvers, trustee of the Trust, the Trust, and Mr. Gorman, jointly and severally.
(3) Granted a nonsuit for Mr. Gorman's trustee in bankruptcy, Gary Knostman, also a named defendant in the court below.
On appeal, Mr. Gorman contends the trial court erred in granting the summary judgment invalidating the Trust and in awarding attorney's fees against him under either the declaratory judgment act, TEX.CIV.PRAC. & REM.CODE ANN. § 37.009 (Vernon 1997), or TEX.R.CIV.P. 13.

*862 Background
On January 10, 1989, Mr. Gorman established a trust in the amount of $75,000 (naming himself and Mrs. Gorman as settlors) for the welfare, maintenance, and education of their children through college, to be funded with his personal earnings.[1] There was a line for Mrs. Gorman's signature, but she refused to sign. Three weeks after Mr. Gorman executed the trust indenture, he filed for divorce from Mrs. Gorman. Approximately eight months later, on September 8, 1989, Mr. Gorman filed for bankruptcy and was listed as the debtor in the bankruptcy proceeding.
On September 28, 1992, Mr. Gorman and the Gorman's three children filed a motion to intervene on behalf of the Trust in the divorce proceeding. Mrs. Gorman filed a motion to deny the intervention. On October 19, 1992, the trial court granted Mrs. Gorman's motion to deny the intervention. The order does not state anything about the children obtaining or seeking relief in the bankruptcy court. The children filed a proof of claim with the bankruptcy court, which designated the Trust as a creditor, for $75,000. Mrs. Gorman filed a motion to dismiss with the bankruptcy court alleging the bankruptcy action and the Trust were shams to deprive her of her property. As a result, the bankruptcy court converted the action from a chapter 11 proceeding to a chapter 7 proceeding and appointed a bankruptcy trustee to investigate preferential transfers and specific claims, including the claims by the Trust. There is nothing in the record indicating any determination by the bankruptcy trustee in regard to the Trust. The Trust thereafter voluntarily withdrew its claim.[2]
In the divorce proceeding, Mrs. Gorman listed as community property the $20,000 in the Trust and the $486,000 annuity which was the purported source of funding for the Trust. The divorce decree entered November 3, 1992, does not specifically mention these assets. The divorce decree awarded to Mrs. Gorman as her sole and separate property, "all of the cash residue, if any, to be distributed from [Mr. Gorman's] bankruptcy proceeding.... Such residue is the portion belonging to debtor that is remaining after debts and costs of administration have been paid. It is ordered and decreed that Sharon Elaine Gorman's cash residue is to be paid directly to Sharon Elaine Gorman."

Procedural History
On October 27, 1992, the Trust, by and through Silvers, filed this lawsuit in state district court against Mr. Gorman, Mrs. Gorman, and Gary Knostman, bankruptcy trustee for Mr. Gorman, as defendants. The Trust sued to recover the $75,000 that Mr. Gorman had pledged to the Trust. Mrs. Gorman answered the suit and filed a cross-claim for (1) a declaratory judgment that the Trust was not valid, (2) damages against the trustee for a frivolous suit, and (3) attorney's fees. The Trust answered Mrs. Gorman's cross-claim with a general denial. The trial court granted a nonsuit for Knostman. Knostman deposited the residue of the funds he held as bankruptcy trustee, $93,956.50, in the trial court's registry, per agreement of the parties entered into in the bankruptcy proceeding.
On June 30, 1994, Mrs. Gorman filed a "1994 Motion for Partial Summary Judgment" against the Trust, alleging: (1) no trust exists, (2) res judicata, and (3) waiver. She also requested a declaratory judgment that "the purported Trust is not a valid Trust *863 and that [Sharon Gorman] has no liability thereunder." Mr. Gorman, defendant in the case, filed a pro se response to Mrs. Gorman's motion for summary judgment which was directed only at the Trust and trustee.
On July 29, 1994, the trial court granted Mrs. Gorman's motion for partial summary judgment against the Trust and a declaratory judgment that "she was entitled to the cash residue from the bankruptcy court amounting to the funds deposited in the trial court's registry." However, it was an interlocutory judgment because it did not dispose of Mrs. Gorman's attorney's fees claims, nor did it dispose of the Trust's claims against Mr. Gorman as a defendant.
On November 21, 1994, after the ruling on the partial summary judgment and declaratory judgment against the Trust, Mrs. Gorman filed her first cross-claim against Mr. Gorman asserting he and the trustee brought a frivolous suit under TEX.R.CIV.P. 13, and requesting attorney's fees. Mrs. Gorman also requested a declaratory judgment that "the alleged Trust is not a valid Trust; that in the alternative, it has been revoked if it ever existed; and that Sharon Gorman has no liability thereunder...." She also requested attorney's fees pursuant to TEX.CIV.PRAC. & REM.CODE ANN. § 37.009 from Silvers "in his individual capacity and from the nominal defendant [Mr. Gorman] who is the plaintiff." We note that Mr. Gorman had not filed any pleadings against Mrs. Gorman as of this date, except his response to her motion for partial summary judgment against the Trust. She alleged that Mr. Gorman and Silvers had depleted the bankruptcy estate by $50,000. Both Silvers and Mr. Gorman filed general denials to Mrs. Gorman's claims. Mr. Gorman filed a motion for sanctions against Mrs. Gorman and her attorney under TEX.R.CIV.P. 13. Mr. Gorman also filed a cross-claim against Mrs. Gorman requesting indemnity and contribution from Mrs. Gorman for any liability he had to the plaintiff trust, and his attorney's fees.
The trial court later held a hearing on the motion for sanctions under TEX.R.CIV.P. 13. It entered a final judgment awarding Mrs. Gorman $45,000 in attorney's fees under the declaratory judgment act and, alternatively, as sanctions under rule 13 against the Trust by and through trustee Silvers and Mr. Gorman, jointly and severally.
The trial court filed findings of fact and conclusions of law:
1. The suit was instituted by Robert L. Silvers, acting as trustee but at the specific insistence and request of Defendant Rodman Edward Gorman.
2. Given the relationship of the parties and their history in other forums, which is evident from among other things, the summary judgment evidence and the procedural history of the case, this litigation should have never been brought. The only purpose served by this litigation was to frustrate Defendant Sharon Elaine Gorman's interest and keep her from receiving the benefit of agreements previously made, and the decree of divorce between her and Rodman Edward Gorman, which benefits included the previously determined allocation of the community estate.
3. The litigation was groundless and brought in bad faith.
4. The litigation was groundless and brought for the purpose of harassing Sharon Elaine Gorman.
5. By groundless, in the above two findings, the Court finds that the litigation and the positions taken by the Plaintiff and joined by Defendant Rodman Edward Gorman had no basis in law or fact and were not warranted by good faith arguments for the extension, modification or reversal of existing law.
6. Both the plaintiffs and Rodman Edward Gorman share responsibility for both the institution and continued prosecution of this suit.
7. Rodman Edward Gorman, a lawyer, advised Robert L. Silvers, a client of his, in connection with his role in the lawsuit.
8. Rodman Edward Gorman arranged for the representation of the Plaintiff which appeared as a matter of record and made arrangements for any compensation that would be paid to the Plaintiff's counsel.
9. Rodman Edward Gorman, although ostensibly adverse to Plaintiff, acted at all *864 material times in cooperation with the Plaintiff.
10. The case was unnecessarily extended by the acts of the Plaintiff and Rodman Edward Gorman.
11. The conduct of the Plaintiff and Rodman Edward Gorman is sanctionable pursuant to Rule 13 of the Texas Rules of Civil Procedure.
12. The violation of Rule 13 justifies the award of attorney's fees in the amounts assessed and awarded in the judgment to Sharon Elaine Gorman.
13. The amounts awarded to Sharon Elaine Gorman are the costs and reasonable necessary attorney's fees which the Court finds to be equitable and just under the circumstances of this case pursuant to § 37.009 of the Texas Civil Practice and Remedies Code.

Summary Judgment
In Mr. Gorman's first point of error, he contends the trial court erred in granting Mrs. Gorman's motion for summary judgment.
A. Standard of Review
The rules for review of a summary judgment are well established:
1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.
2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.
3. Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor.
Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985).
A summary judgment disposing of the entire case is only proper, if, as a matter of law, the plaintiff could not succeed on any of the theories pleaded. Delgado v. Burns, 656 S.W.2d 428, 429 (Tex.1983). We will affirm the judgment if any of the theories advanced in the motion for summary judgment are meritorious. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex.1996).
B. Standing
First, we address whether Mr. Gorman has standing to appeal the partial summary judgment granted to Mrs. Gorman and against the Trust. Standing is a component of subject matter jurisdiction. It cannot be waived and may be raised for the first time on appeal. Texas Ass'n of Bus. v. Air Control Bd., 852 S.W.2d 440, 445-46 (Tex.1993). A party may not complain of errors that do not injuriously affect it or that merely affect the rights of others. Shell Petroleum Co. v. Grays, 131 Tex. 515, 114 S.W.2d 869, 870 (1938). A party of record is normally entitled to appeal; however, that party's own interest must be prejudiced before it has standing to appeal. Reynolds v. Reynolds, 860 S.W.2d 568, 570 (Tex.App.Dallas 1993, writ denied). An appellant has the burden of making a prima facie showing of prejudice. CNL Fin. Corp. v. Hewlett, 539 S.W.2d 176, 178 (Tex.App.Beaumont 1976, writ ref'd n.r.e.).
Mr. Gorman, the appellant, has not made a prima facie showing that he has been prejudiced by the partial summary judgment ordering that Mrs. Gorman is entitled to the money in the trial court registry. The only party who sued Mrs. Gorman or had a summary judgment granted against it was the Trust. Mr. Gorman was a defendant in the trial court. The trial court granted Mrs. Gorman's take-nothing partial summary judgment and declaratory judgment against the Trust only. On appeal, Mr. Gorman challenges the partial motion for summary judgment granted against the Trust.
The Trust sued Mr. Gorman, Mrs. Gorman, and Knostman as defendants. Mr. Gorman filed a general denial to the Trust's action against him as a defendant. Mrs. Gorman filed the motion for summary judgment "against plaintiff, styled `The Gorman's Children's Trust by and Through Robert L. Silvers, Trustee'...." The trial court's interlocutory order of July 29, 1994, granting Mrs. Gorman's motion for partial summary judgment, provides:

*865 There is no genuine issue as to any material fact and Defendant SHARON ELAINE GORMAN is entitled to judgment as a matter of law on the issues set out in her Motion.
It is therefore ORDERED ADJUDGED and DECREED that SHARON ELAINE GORMAN have judgment against Plaintiff and that Plaintiff TAKE NOTHING from her....
Further the Court DECLARES that Defendant SHARON ELAINE GORMAN is entitled to all of the cash residue to be distributed from that certain bankruptcy proceeding ... remaining after debts and cost of administration have been paid, which amounts to the funds that have been deposited in the registry of this Court by Bankruptcy Trustee Gary Knostman.
It is further ORDERED that, upon receipt of a copy of this order, Kathryn Tyra, District Clerk ... issue to SHARON ELAINE GORMAN from the registry of the Court ... all funds therein plus any accrued interest thereon.
We emphasize that, at the time the trial court ordered the partial summary judgment and the declaratory judgment, Mr. and Mrs. Gorman did not have any cross-claims filed against each other in this case. The interlocutory summary judgment order does not dispose of the Trust's claims against Mr. Gorman. There is no finding of Mr. Gorman's liability. The money from the trial court's registry was paid to Mrs. Gorman as a result of the declaratory judgment. Mr. Gorman is not personally liable in any way as a result of the interlocutory summary judgment. Therefore, Mr. Gorman does not have standing to challenge the summary judgment. See Ohio Med. Prods., Inc. v. Suber, 758 S.W.2d 870, 872 (Tex.App.Houston [14th Dist.] 1988, writ denied).
After the trial court granted an interlocutory summary judgment in favor of Mrs. Gorman against the plaintiff, Mrs. Gorman filed a cross-claim against Mr. Gorman and the Trust alleging that they had brought a frivolous suit against her, and seeking a declaratory judgment and attorney's fees. At this point, Mr. Gorman did not have any pleadings against Mrs. Gorman on file. Mrs. Gorman was alleging that, in actuality, Mr. Gorman was the true plaintiff, rather than a defendant. Mr. Gorman filed special exceptions to Mrs. Gorman's cross-claim. Mr. Gorman also filed a motion for sanctions under rule 13 against Mrs. Gorman and her attorney, and a cross-claim against Mrs. Gorman requesting indemnity and contribution from Mrs. Gorman in the event he was found liable to the Trust. After a hearing on the motion for sanctions, the trial court entered a final judgment.
The trial court's final judgment states:
Sharon Elaine Gorman is entitled to a judgment for attorney's fees. It is therefore ORDERED ADJUDGED and DECREED that the Gorman Children's Trust, by and through Robert L. Silvers, Trustee and Rodman Edward Gorman take nothing on their respective claims and causes of action and that Sharon Elaine Gorman have judgment against the Gorman Children's Trust by and through Robert L. Silvers, Trustee and Rodman Edward Gorman jointly and severally for $45,000....
The interlocutory judgment disposes of the Trust's claims against Mrs. Gorman. The final judgment disposes of Mrs. Gorman's attorney's fees claims against the Trust. Neither the partial nor the final judgment expressly determines Mr. Gorman's liability to the Trust as a defendant. However, the judgment contains a Mother Hubbard Clause providing: "All relief not specifically granted is herein denied." This clause makes it a final judgment. See Inglish v. Union State Bank, 945 S.W.2d 810, 811 (Tex.1997). Therefore, the Mother Hubbard clause, in effect, holds that Mr. Gorman has no liability to the Trust as a defendant. Mr. Gorman, as a defendant, won in the trial court.
The Trust has not appealed the summary judgment or the declaratory judgment granted to Mrs. Gorman. Mr. Gorman does not question the finality of the trial court's final judgment or the absence of a finding of his liability to the Trust. Mr. Gorman did not have a cross-claim against Mrs. Gorman on file for indemnity or contribution at the *866 time the interlocutory summary judgment was entered and, even if he had, the trial court never determined Mr. Gorman's liability, if any, to the Trust. Therefore, he has not been injuriously affected in any way by the interlocutory summary judgment against plaintiff. He does not have standing to challenge the take-nothing summary judgment and declaratory judgment granted in favor of a co-defendant against the plaintiff where he was not injured. See generally Buckholts Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146, 150 (Tex.1982); Pierson v. Houston Indep. Sch. Dist., 698 S.W.2d 377, 381 (Tex.App. Houston [14th Dist.] 1985, writ ref'd n.r.e.). Therefore, this Court does not have subject matter jurisdiction to review Mr. Gorman's first point of error. Reynolds, 860 S.W.2d at 571.

Attorney's Fees
In his second point of error, Mr. Gorman contends that the trial court erred in awarding attorney's fees and costs against him under the declaratory judgments act because there was no pleading seeking a declaratory judgment against him and none had been rendered against him.[3] The plaintiff's original petition naming Mr. Gorman as a defendant sought a declaratory judgment. Mr. Gorman filed a general denial. There is some confusion in the record about which pleadings were live at the time of the hearing on sanctions; however, the trial court stated on the record that it was proceeding on Mrs. Gorman's first amended petition. In light of the trial court's statements and actions, it was referring to Mrs. Gorman's first amended cross-petition seeking a declaratory judgment and attorney's fees under TEX.CIV.PRAC. & REM.CODE ANN. § 37.009 against Silvers, in his individual capacity as trustee, and Mr. Gorman. Assuming, without deciding, that the live pleadings included a declaratory judgment action against Mr. Gorman, we cannot affirm the award of attorney's fees under Tex.Civ.Prac. & Rem.Code Ann. § 37.009 because the trial court erroneously took judicial notice of reasonable and necessary attorney's fees under chapter 38 of the Texas Civil Practice and Remedies Code.
At the hearing on the motion for sanctions, Mrs. Gorman's attorney testified to the amount of attorney's fees that had been expended and would be expended in the cause. Appellant's trial counsel objected that Mrs. Gorman's trial counsel was not designated as an expert either in response to interrogatories or in response to the trial court's order to file a list of expert witnesses under the scheduling order. Discovery responses must be on file 30 days before trial. TEX.R.CIV.P. 166b(6). Failure to supplement automatically results in the loss of opportunity to present the testimony, unless good cause is shown. TEX.R.CIV.P. 215(5). Mrs. Gorman's attorney did not attempt to show "good cause." The parties advised the trial court that it could take judicial notice of the reasonableness of attorney's fees without expert testimony under TEX.CIV.PRAC. & REM. CODE ANN. § 38.001 (Vernon 1997). The trial court proceeded under section 38.001 and TEX.R.CIV.P. 13.
Chapter 38 of the Texas Civil Practice and Remedies Code permits the court to take judicial notice of reasonable and necessary attorney's fees only in claims described in TEX.CIV.PRAC. & REM.CODE ANN. § 38.001. TEX.CIV.PRAC. & REM.CODE ANN. §§ 38.003 (Vernon 1997). See Valdez v. Valdez, 930 S.W.2d 725, 731-32 (Tex.App.Houston [1st Dist.] 1996, no writ) (action enforcing and clarifying divorce decree); see also Coward v. Gateway Nat'l Bank, 525 S.W.2d 857, 859 (Tex.1975) (interpreting predecessor statute); GeoChem Tech Corp. v. Verseckes, 929 S.W.2d 85, 93 (Tex.App.Eastland 1996, writ pending). Declaratory judgment actions do not fall under chapter 38. See GeoChem, 929 S.W.2d at 93; see also Coward, 525 S.W.2d at 859 (interpreting predecessor statute); Valdez, 930 S.W.2d at 731-32 (action enforcing and clarifying divorce decree).
*867 A party seeking to recover attorney's fees in a declaratory judgment action must prove that the fees are reasonable and necessary. See GeoChem, 929 S.W.2d at 93 (finding some evidence on attorney's fees). The party enjoys neither a presumption of reasonableness nor the availability of judicial notice which is available for claims under chapter 38, Texas Civil Practice and Remedies Code. TEX.CIV.PRAC. & REM.CODE ANN. § 38.001 (Vernon 1997); See GeoChem, 929 S.W.2d at 93. A trial court is not permitted to take judicial notice of reasonable and necessary attorney's fees under the declaratory judgments act. See GeoChem, 929 S.W.2d at 93. Therefore, it was not appropriate for the trial court to do so here. See id.; see also Valdez, 930 S.W.2d at 732-33 (noting even if the amount of expert fees charged and/or paid had been established, that proof would not have raised an issue of reasonableness). Although we hold that the declaratory judgments act was an improper basis on which to award attorney's fees, we must also address the trial court's alternative basis for the award, rule 13. TEX.R.CIV.P. 13.

Rule 13
In his third point of error, Mr. Gorman contends the trial court erred in awarding attorney's fees as sanctions under TEX. R.CIV.P. 13. As he did in his motion for new trial, Mr. Gorman contends on appeal that the trial court's order issuing sanctions did not state good cause or the particulars of good cause.
Rule 13 provides in part:
No sanctions under this rule may be imposed except for good cause, the particulars of which must be stated in the sanction order.... A general denial does not constitute a violation of this rule.
TEX.R.CIV.P. 13. The trial court provided in its final judgment:
[T]he Court also finds that the pleadings by the Gorman Children's Trust by and through Robert L. Silvers, Trustee and Rodman E. Gorman are frivolous and groundless, there being no basis in law or fact for the claims asserted against Sharon Elaine Gorman herein and is further of the opinion that this action has been brought in bad faith and for purposes of harassment.
In order to act within its discretion to impose rule 13 sanctions, the trial court must state with particularity, as provided in rule 13, good cause for finding that the pleadings upon which the sanctions are based were groundless and frivolous and brought for purposes of harassment. See Johnson v. Smith, 857 S.W.2d 612, 617 (Tex.App. Houston [1st Dist.] 1993, no writ). This order does not state, with particularity, good cause for finding that the pleadings in this case were groundless and brought in bad faith for purposes of harassment; instead, it recites the rule.
Mrs. Gorman relies on the trial court's findings of fact and conclusions of law to support the award of sanctions. Texas courts of appeals are in conflict as to whether the lack of particularity in a trial court's order may constitute harmless error and whether findings of fact and conclusions of law may be considered to satisfy rule 13's particularity requirement.[4] We choose to *868 follow the majority of the courts of appeals which have considered this issue, and hold that a trial court's failure to make particular findings in a rule 13 order may constitute harmless error when the trial court's findings of fact and conclusions of law supply the particulars of good cause required by rule 13. See Bloom v. Graham, 825 S.W.2d 244, 247 (Tex.App.Fort Worth 1992, writ denied); Campos v. Ysleta Gen. Hosp., Inc., 879 S.W.2d 67, 70-71 (Tex.App.El Paso 1994, writ denied). In this case, the trial court's findings of fact and conclusions of law state that Mr. Gorman's only purpose in filing the suit was to keep Mrs. Gorman from receiving the benefit of previous agreements, and that Mr. Gorman acted in concert with the plaintiff in the underlying suit, thereby unnecessarily extending the litigation. We hold that the trial court's findings of fact and conclusions of law did supply the particulars of good cause required by rule 13. TEX. R.CIV.P. 13. Further, the evidence supports the findings.[5] Therefore, the trial court did not abuse its discretion by awarding attorney's fees as sanctions pursuant to that rule. See Dyson Descendant Corp. v. Sonat Exploration Co., 861 S.W.2d 942, 950 (Tex.App. Houston [1st Dist] 1993, no writ) (trial court's order will not be disturbed unless court acted without reference to any guiding legal rules or principles).

Sufficiency of the Evidence
In his fourth point of error, Mr. Gorman contends there is legally and factually insufficient evidence to support the amount of attorney's fees awarded. As previously stated, Mr. McEvily, one of Mrs. Gorman's attorneys, testified concerning the amount of attorneys' fees which had accrued to date and what fees were anticipated in the future. Because Mr. McEvily was not listed as an expert, the trial court did not permit him to express any opinion concerning whether the fees were reasonable or necessary. Appellant argues that, because no evidence exists showing the fees to be reasonable and necessary, the evidence supporting the trial court's award of those fees is legally and factually insufficient.
We review the trial court's award of sanctions under rule 13 for abuse of discretion. GTE Communications Sys. Corp. v. Tanner, 856 S.W.2d 725, 731 (Tex.1993). Under an abuse of discretion standard, legal and factual insufficiency are not independent, reversible grounds of error; rather, they are relevant factors in assessing whether the trial court abused its discretion. Mai v. Mai, 853 S.W.2d 615, 618 (Tex.App.Houston [1st Dist.] 1993, no writ). Contrary to appellant's argument, proof of the necessity or reasonableness of attorney's fees is not required *869 when such fees are assessed as sanctions. See Stites v. Gillum, 872 S.W.2d 786, 797 (Tex.App.Fort Worth 1994, writ denied). Rather, the amount of attorney's fees awarded as sanctions is within the sound discretion of the trial court. Id. Based on the past and future fees testified to by Mr. McEvily, we do not find the sanctions imposed by the trial judge to be excessive or a clear abuse of discretion. Accordingly, we overrule appellant's fourth point of error.

Conclusion
We affirm the trial court's judgment.
NOTES
[1]  The trust indenture provides: "I do by this indenture grant, convey, assign, and otherwise give, over to the Trustee the absolute right to receive for the next three years, the first $25,000 per year, from the annual proceeds paid in January of each year by John O'Quinn P.C., from an annuity payment ... for the benefit of Robert Guantt." Mr. and Mrs. Gorman were separated at this time. The $75,000 was money that John O'Quinn owed to Mr. Gorman, an attorney, from the settlement of the Guantt case. A letter from O'Quinn to Mr. Gorman provides: "When those funds are received by me, I will deliver to you your $156,000 portion out of each payment; ... should any adverse claims be made against it, I will simply escrow those funds to have it resolved by a court or an agreement." Mr. Gorman indicated in the trust indenture that he and Mrs. Gorman created the Trust.
[2]  The withdrawal states the claim was filed on January 9, 1990, for $75,000, and then voluntarily withdrawn from the court on February 27, 1991.
[3]  This argument emphasizes that Mr. Gorman does not have standing to contest the partial summary judgment and declaratory judgment holding that Mrs. Gorman is entitled to the money in the court registry. He cannot claim the attorney's fees awarded against him are improper upon this basis, and then challenge the summary judgment and declaratory judgment to which he was not a party.
[4]  Some Texas courts have held that the trial court's failure to make particular findings in the order may constitute harmless error. Campos v. Ysleta Gen. Hosp., Inc., 879 S.W.2d 67, 70 (Tex. App.El Paso 1994, writ denied) (abating trial to allow trial court to file findings of fact and conclusions of law stating particulars of good cause for sanction order); Bloom v. Graham, 825 S.W.2d 244, 247 (Tex.App.Fort Worth 1992, writ denied); Powers v. Palacios, 771 S.W.2d 716, 719 (Tex.App.Corpus Christi 1989, writ denied); TEX.R.APP.P. 44.1. Other courts, including this Court have held that the language of rule 13 is mandatory, without addressing whether error can be harmless. Kahn v. Garcia, 816 S.W.2d 131, 133 (Tex.App.Houston [1st Dist.] 1991, orig. proceeding); Watkins v. Pearson, 795 S.W.2d 257, 260 (Tex.App.Houston [14th Dist.] 1990, writ denied). The record in the latter group of cases did not include findings of fact and conclusions of law.

At least one Texas court has held that rule 13's requirement that the trial court state the particulars of good cause in the sanction order is not satisfied by the trial court filing findings of facts and conclusions of law after the sanction order is entered and in effect. See Friedman & Assoc., P.C. v. Beltline Road Ltd., 861 S.W.2d 1, 3 (Tex.App.Dallas 1993, writ dism'd by agr.). Another Texas court explained the purpose of rule 13's requirement that good cause be shown in the sanction order as follows:
A rule of civil procedure is interpreted by the same rules that govern statutes. When a rule is clear and unambiguous, we construe the language according to its literal meaning. The language contained in rule 13 is clear and unambiguous. The rule provides that no sanctions may be imposed except for good cause and that the trial court must enumerate the particulars of the good cause in the sanction order. The requirement that the court state its findings in the order is in lieu of the traditional findings of fact and conclusions of law which normally are filed in a trial on the merits in a non-jury case. These findings enable the appellate court to review the order in light of the facts found by the trial court. Without the findings required by Rule 13, effective review of the sanctions is unavailable because the sanctioned party would be unable to overcome the presumption that the trial court found necessary facts in support of its judgment.
GTE Communications Sys. Corp. v. Curry, 819 S.W.2d 652, 653-54 (Tex.AppSan Antonio 1991, orig. proceeding) (emphasis added) (citations omitted).
[5]  On appeal, Mr. Gorman also contends that the underlying suit was not groundless and, in any event, he did not sign a groundless pleading as required by rule 13. See TEX.R.CIV.P. 13. Contrary to Mr. Gorman's contention, the cross-claim, which sought indemnity from Mrs. Gorman in the event he was found liable to the Trust, was signed by him pro se. Furthermore, as the trial court found, the Trust filed the original suit against Mrs. Gorman and Mr. Gorman as defendants at the insistence and urging of Mr. Gorman. By filing the cross-claim against Mrs. Gorman, Mr. Gorman sought indemnity from her for possible liability flowing from a groundless lawsuit which he encouraged or requested the Trust to file against Mrs. Gorman and himself. The evidence supports the trial court's findings that the purpose of this litigation was to frustrate Mrs. Gorman's interest and to keep her from receiving the benefit of agreements previously made.