on Deck Capital, Inc. v. CWO Designer Landscapes Limited Liability Company and Craig Odonnell ( 2022 )

DISMISS and Opinion Filed February 10, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00471-CV
ON DECK CAPITAL, INC., Appellant
V.
CWO DESIGNER LANDSCAPES LIMITED LIABILITY COMPANY AND
CRAIG ODONNELL, Appellees
On Appeal from the County Court at Law No. 2
Collin County, Texas
Trial Court Cause No. 002-01582-2019
MEMORANDUM OPINION
Before Justices Reichek, Nowell, and Carlyle
Opinion by Justice Reichek
On Deck Capital, Inc. appeals the award of attorney’s fees imposed against its
law firm as a discovery sanction following a nonsuit. Because appellant does not
have standing to appeal a sanction imposed against its counsel, we conclude we lack
subject matter jurisdiction over the appeal.
Appellant sued CWO Designer Landscapes Limited Liability Company and
Craig Odonnell. Appellant alleged that CWO entered into a Business Loan and
Security Agreement and Odonnell personally guaranteed the agreement. Appellant
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alleged appellees breached their agreements by failing to repay the debt, and
appellant was owed $9,240.39. Appellees filed an answer containing a general
denial and a verified denial.
The case was set for a trial before the court. On the day of trial, both sides
announced ready. Appellant made a brief opening statement followed by appellees,
who objected to the admission of any business records or testimony by any witnesses
not properly produced in discovery. When appellant called its first witness,
appellees objected. A lengthy discussion ensued regarding appellant’s failure to
respond or supplement discovery. When it became apparent that the trial court
would exclude certain evidence necessary to prove its case, appellant requested a
continuance to supplement discovery. The trial court refused. At that point,
appellant moved for nonsuit. Appellees argued the nonsuit should be with prejudice,
and appellant argued it should be without prejudice. The trial court allowed briefing
on the issue and set a hearing thirteen days later.
Prior to the hearing, both sides filed briefs. In their brief, appellees sought a
dismissal with prejudice or, alternatively, attorney’s fees as a discovery sanction. At
the hearing, appellees’ counsel testified to his fees in connection “with the failure to
produce exhibits and named witnesses and the time spent with this nonsuit issue.”
Appellant did not object or cross-examine counsel. After hearing the evidence and
counsels’ arguments, the trial court dismissed the case without prejudice to refiling
but found the discovery rules had been violated and ordered appellant’s law firm,
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“not the client,” to pay $7,200 to opposing counsel within thirty days. The trial court
signed an amended order that memorialized his oral ruling. This appeal ensued.
Appellant challenges only the discovery sanction against its counsel.
Appellant argues (1) there was no pending claim when the fees were requested and
(2) the sanctions award “had no direct relationship between the offensive conduct
and the sanction imposed.” But the sanction was not imposed against appellant.
“Texas courts have long held that an appealing party may not complain of
errors that do not injuriously affect it or that merely affect the rights of others.”
Torrington Co. v. Stutzman, 46 S.W.3d 829, 843 (Tex. 2000). An appellant is not
harmed when sanctions are imposed solely against the appellant’s attorney and does
not have standing to challenge an order imposing sanctions solely upon his attorney.
See Knoles v. Wells Fargo Bank, N.A., 05-12-00473-CV, 2012 WL 6685448, at *1
(Tex. App.—Dallas Dec. 21, 2012, no pet.) (mem. op.); In re Guardianship of
Peterson, No. 01-15-00586-CV, 2016 WL 4487511, at *5 (Tex. App.—Houston [1st
Dist.] Aug. 25, 2016, no pet.) (mem. op.); Bahar v. Lyon Fin. Servs., Inc., 330
S.W.3d 379, 388 (Tex. App.—Austin 2010, pet. denied); Niera v. Frost Nat’l Bank,
No. 04-09-00224-CV, 2010 WL 816191, at *1 (Tex. App.—San Antonio Mar. 10,
2010, pet. denied) (mem. op.); Matbon, Inc. v. Gries, 287 S.W.3d 739, 740 (Tex.
App.—Eastland 2009, no pet.). A lack of standing deprives a court of subject matter
jurisdiction because standing is an element of such jurisdiction. Tex. Ass’n of Bus.
v. Tex. Air Control Bd., 852 S.W.2d 440, 444–45 (Tex. 1993). Because appellant
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lacks standing to complain about the imposition of sanctions against its law firm, we
lack jurisdiction over this appeal.
We dismiss the appeal for lack of jurisdiction.
/Amanda L. Reichek/
AMANDA L. REICHEK
JUSTICE
200471F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ON DECK CAPITAL, INC., On Appeal from the County Court at
Appellant Law No. 2, Collin County, Texas
Trial Court Cause No. 002-01582-
No. 05-20-00471-CV V. 2019.
Opinion delivered by Justice
CWO DESIGNER LANDSCAPES Reichek; Justices Nowell and Carlyle
LIMITED LIABILITY COMPANY participating.
AND CRAIG ODONNELL,
Appellees
In accordance with this Court’s opinion of this date, the appeal is
DISMISSED for want of subject matter jurisdiction.
It is ORDERED that appellees CWO DESIGNER LANDSCAPES
LIMITED LIABILITY COMPANY AND CRAIG ODONNELL recover their
costs of this appeal from appellant ON DECK CAPITAL, INC.
Judgment entered this 10th day of February 2022.
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