kj-and-vj-individually-and-anf-ej-a-minor-v-usa-water-polo-inc ( 2012 )

Affirmed and Opinion filed August 21, 2012.
In The
Fourteenth Court of Appeals
___________________
NO. 14-10-01188-CV
___________________
K.J. AND V.J. INDIVIDUALLY AND AS NEXT FRIEND OF E.J., Appellants,
V.
USA WATER POLO, INC., CHRIS CULLEN, JASON PUYEAR, W.G., JR. AS
NEXT FRIEND OF W.G., III, K.G. AND L.G. AS NEXT FRIENDS OF T.G., M.K.
AND L.K. AS NEXT FRIENDS OF K.K., B.R. AND B.R. AS NEXT FRIENDS OF
B.R., W.S. AS NEXT FRIEND OF P.S. AND J.S., Appellees.
On Appeal from the 80th District Court
Harris County
Trial Court Cause No. 2008-49120
OPINION
In this appeal from the trial court’s judgment on a jury verdict against the plaintiffs
on civil assault and other claims, appellants K.J. and V.J., individually and as next friends
of E.J., raise eleven issues. In their third issue, appellants contend the jury disregarded
conclusive evidence that an assault occurred and therefore judgment should be rendered in
their favor on that claim. In their remaining issues, appellants seek a remand on the rest of
the case, contending that the trial court erred or abused its discretion by failing to record
bench conferences, refusing to allow appellants to ask the jury panel about their ability to
award large damages, failing to abate the case when notice of a Deceptive Trade Practices
Act (DTPA) claim was not given, granting special exceptions on a pleading that had been
amended, imposing sanctions, limiting appellants’ questioning of witnesses, and
preventing them from making objections on the record. Lastly, appellants contend the
cumulative effect of the trial court’s errors denied them a fair trial in violation of their
due-process rights. We affirm.
I
In August 2008, appellants, on behalf of their minor son, E.J., sued USA Water
Polo, Inc. (USAWP), the national governing body for the sport of water polo. Appellants
also sued numerous other defendants, including two coaches and several next friends of
minor boys who, like E.J., participated in water polo activities as members of entities
affiliated with USAWP. Appellants alleged that, while in Salt Lake City, Utah, for a
USAWP-sanctioned water polo tournament, the boys participated in sexually assaulting
E.J. as part of a team initiation. Appellants also alleged that the coaches and chaperones
took no action to prevent the team members from “hazing and assaulting” E.J. After
amending their petition several times and dropping claims against some defendants,
appellants asserted claims including assault and battery, negligence, fraud, and DTPA
violations against the defendants.
The trial witnesses’ accounts of the alleged assault differed. E.J. testified that on
Memorial Day weekend in May 2008, he was part of a team that traveled to Utah to
compete in a water-polo tournament. The boys and the coaches stayed at the same hotel.
According to E.J., some of his teammates, including B.R, W.G., N.K., K.K., T.G., and P.S,
subjected him to an initiation or hazing without his consent. E.J. testified that the boys
forced him to go to B.R.’s room, where they blindfolded him with a towel and placed a
trash can over his head. As E.J. screamed, the boys pinned him down and spanked him with
2
a belt. Next, the boys pulled E.J.’s pants down and gave him a “wedgie.” They then
assaulted him by sticking something into his anus which he “believed” was fingers. T.G.
then handed E.J. an ice cube that he claimed he had put down his pants and told E.J. to put
the ice cube in his mouth. E.J. went in the bathroom and one or more of the boys came in
after him with an iron and used it to squirt water at him. The next day, during the trip home,
T.G. told E.J. that B.R. had said he stuck four fingers into E.J.’s anus, and T.G. held up his
fingers to demonstrate.
B.R. acknowledged that he gave E.J. a “wedgie,” but he denied putting his fingers in
E.J.’s anus or telling anyone he had done so. T.G. also denied telling E.J. that B.R. said he
had inserted his fingers into E.J.’s anus. All of the other boys who were in the hotel room at
the time denied any conduct constituting a sexual assault occurred. The boys’ accounts
differed concerning the details of the incident, but most acknowledged that E.J. was
blindfolded, held down on a bed, given a wedgie, and had his pants pulled down.
The first question in the jury charge asked the jury to determine whether T.G., N.K.,
or B.R. committed an assault against E.J. If they answered this question “yes” as to B.R.,
they were then asked to determine whether B.R. committed a sexual assault against E.J.
The jury found against E.J. on his claims of assault and sexual assault, and so did not reach
additional questions concerning whether other boys assisted or encouraged the acts.1 The
jury also found that USAWP was not negligent and did not violate the DTPA.
The trial court entered a judgment on the jury’s verdict, ordering that appellants take
nothing from appellees. The court later granted a motion by P.S.’s father to modify the
final judgment to incorporate sanctions for frivolous pleadings and claims against E.J.’s
mother, V.J., awarding $4,125.00 plus post-judgment interest. Appellants filed a motion
for new trial, which was denied. This appeal followed.
1
Specifically, if the jury answered Question 1 “yes,” the jury was asked consider in Question 2
whether W.G., T.G., K.K., N.K., B.R., and P.S. assisted or encouraged an assault against E.J. If the jury
found in Question 3 that B.R. committed a sexual assault against E.J., they were then asked in Question 4 to
consider whether W.G., T.G., K.K., N.K., and P.S. assisted or encouraged a sexual assault against E.J.
3
II
In their third issue, appellants contend the uncontroverted evidence established that
an assault took place, and the jury was not free to disregard it. Appellants ask us to reverse
and render judgment that there was an assault and remand for new trial on all other issues.2
As an initial matter, appellees contend that appellants have failed to preserve this
issue because they did not raise it in the trial court. See Tex. R. App. P. 33.1(a). To preserve
a complaint of legal insufficiency of the evidence after a jury trial, a party must (1) move
for an instructed verdict, (2) move for a judgment notwithstanding the verdict, (3) object to
the submission of the jury question, (4) move to disregard the jury finding, or (5) move for
a new trial. See Cecil v. Smith, 804 S.W.2d 509, 510–11 (Tex. 1991); United Parcel Serv.,
Inc. v. Tasdemiroglu, 25 S.W.3d 914, 916 (Tex. App.—Houston [14th Dist.] 2000, pet.
denied). Appellants contend they presented the issue in a motion for new trial, but the
motion for new trial recited only that the jury’s verdict was “against the great weight and
preponderance of the evidence and is manifestly unjust”—a challenge to the factual
sufficiency of the evidence. Moreover, appellants did not request rendition of judgment in
their favor; they sought only a new trial. Therefore, we conclude that appellants did not
raise a legal-sufficiency challenge in the trial court and thus have not preserved the issue
for review. See Halim v. Ramchandani, 203 S.W.3d 482, 486–87 (Tex. App.—Houston
[14th Dist.] 2006, no pet.). Accordingly, we overrule appellants’ third issue.
III
In their second issue, appellants contend they were precluded from asking the venire
panel whether they would be willing to award damages to E.J. of $2 million if the law and
the credible evidence justified such an award. Further, because the trial court refused to
permit the question, appellants contend they were denied the opportunity to exercise
2
Appellants have not assigned error on appeal as to any alleged factual insufficiency of the
evidence to support the jury’s finding that appellants did not prove the essential elements of their assault
claim.
4
challenges for cause and peremptory challenges, depriving them of their due-process right
to a fair trial.
On the first day of voir dire, the trial court informed the jury that the lawsuit
involved allegations of assault and sexual assault against a teenage boy by some of his
water-polo teammates at a tournament he was attending in Utah. Later, as appellants’
counsel questioned the panel members, he asked the following question, without objection,
to the first eighty-one panel members:
Now, do you have you a fixed figure in mind that no matter what the law is
that the Judge gives you and the evidence you hear from the witness stand
that you would not go, in your own words? And by that I mean that if the law
as given to you by His Honor and the evidence only justified one dollar in
damages, would you be willing to serve on this jury and come back with an
award one dollar for [E.J.]?
Panel member 82 stated he did not understand the question, and when appellants’ counsel
repeated it, counsel for USAWP objected that the question was “an improper attempt to
pre-commit the jurors to any amount.” Appellants’ counsel responded that “it was a
question of whether they can follow the law.” The trial court overruled the objection, but
admonished appellants’ counsel to “[k]eep it in general terms.”
After several more jurors answered the question, appellants’ counsel changed the
question:
Let’s go the other direction. What if the credible evidence, all the credible
evidence and the law [that] is given to you by His Honor justifies an award of
$2 million for [E.J.]. Are you willing to sit on this jury and return a verdict of
$2 million for [E.J.], juror number 1?
USAWP’s counsel began to object, saying, “Once again that’s an improper attempt --”
when the trial court asked counsel to approach the bench. An unrecorded bench conference
was held. After the bench conference, no ruling was requested or announced on the record,
but appellants’ counsel did not continue that line of questioning. We presume for the sake
5
of argument that the trial court ruled appellants were precluded from asking the venire
panel whether they would be willing to award damages to E.J. of $2 million if the law and
the credible evidence justified such an award.
Voir dire examination protects the right to an impartial jury by exposing possible
improper juror bias or prejudice. See Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 749
(Tex. 2006). The primary purpose of voir dire is to inquire about specific views that would
prevent or substantially impair jurors from performing their duty in accordance with their
instructions and oath. Id. A trial judge’s refusal to allow certain questions during voir dire
is reviewed under an abuse-of-discretion standard. See id. at 753–54. A court abuses its
discretion when its denial of the right to ask a proper question prevents determination of
whether grounds exist to challenge for cause or denies intelligent use of peremptory
challenges. Babcock v. Nw. Mem’l Hosp., 767 S.W.2d 705, 709 (Tex. 1989).
A “commitment question” has been defined as “one that commits a prospective
juror to resolve, or refrain from resolving, an issue a certain way after learning a particular
fact.” Davis v. State, 313 S.W.3d 317, 346 (Tex. Crim. App. 2010). Questions that are not
intended to discover bias against the law or prejudice for or against the defendant, but
rather seek only to determine how jurors would respond to the anticipated evidence and
commit them to a specific verdict based on that evidence are not proper. Vasquez, 189
S.W.3d at 753 (citing Sanchez v. State, 165 S.W.3d 707, 712 (Tex. Crim. App. 2005)).3
On appeal, appellants contend that the question was a proper inquiry into whether
the potential jurors could follow the law given to them by the court and as based on the
evidence presented because “it inquired of the venire’s ability to return large damages, if
all of the credible evidence they heard and the law as given to them by the judge warranted
large damages.” Appellants argue that the question is analogous to asking venire members
3
The Supreme Court of Texas has explained that, because the statutory standards for bias or
prejudice in civil and criminal cases are the same, voir dire standards should remain consistent. Vasquez,
189 S.W.3d at 753.
6
in a criminal case whether they can consider the entire range of punishment. See Cardenas
v. State, 325 S.W.3d 179, 184 (Tex. Crim. App. 2010) (stating that both the State and the
defense may question the jury panel on the range of punishment and may commit jurors to
consider the entire range of punishment for an offense); Davis, 313 S.W.3d at 346 (“When
the law requires a certain type of commitment from jurors, such as considering the full
range of punishment, an attorney may ask prospective jurors to commit to following the
law in that regard.”).
We are not persuaded, however, that the analogy is instructive in this case.
Appellants’ criminal cases reflect that a party may ask potential jurors whether they can
consider the full range of punishment because the punishment for a particular offense is
prescribed by statute, and a party is entitled to determine whether potential jurors can
follow the law on which the parties rely. See Cardenas, 325 S.W.3d at184–85; Standefer v.
State, 59 S.W.3d 177, 181 (Tex. Crim. App. 2001). Thus, when the law requires a certain
type of commitment from jurors, the attorneys may ask the prospective jurors whether they
can follow the law in that regard. Standefer, 59 S.W.3d at 181; see also In re Commitment
of Hill, 334 S.W.3d 226, 229 (Tex. 2011) (per curiam) (commitment question not improper
when the commitment potential jurors were asked to make was legislatively mandated). In
civil cases, however, the law does not require a jury to award a statutorily specified amount
of damages if liability is found. See Taber v. Roush, 316 S.W.3d 139, 164–65 (Tex.
App.—Houston [14th Dist.] 2010, no pet.) (holding that venire member was not
disqualified as a matter of law when he indicated that he could not award a million dollars
for mental anguish because “[t]he law does not require a juror to award any specific
amount of damages for mental anguish.”). Thus, we conclude the criminal cases involving
commitment questions on the range of punishment are not dispositive in this civil case.
Appellants also contend the question was not a commitment question because it did
not tell the venire members any facts and did not ask them to commit to resolve an issue a
certain way after learning a particular fact. But appellants’ question was framed by a
7
preview of the claims involved, and inquired whether the jury could commit to a specific
amount of damages, namely $2 million, if the law and facts allowed it. On this record, we
conclude that the trial court did not abuse its discretion in disallowing the question. “One of
the primary rules of voir dire in Texas civil cases has long been that trial courts have broad
discretion in conducting it.” Vasquez, 189 S.W.3d at 753. We also follow the general rule
in Texas that “it is improper to ask jurors what their verdict would be if certain facts were
proved.” Id. at 751. “Fair and impartial jurors reach a verdict based on the evidence, and
not on bias or prejudice. Voir dire inquiries to jurors should address the latter, not their
opinion about the former.” Id. at 751–52.
In Vasquez, the Supreme Court of Texas noted that until the court-of-appeals
decision in that case, no Texas appellate court “had held that a trial court abuses its
discretion in excluding a voir dire question that incorporates isolated facts in a case.” Id. at
753. As an example of a court refusing to so hold, the Supreme Court cited Greenman v.
City of Fort Worth, a case with facts remarkably close to those in the case at hand. See 308
S.W.2d 553, 554 (Tex. Civ. App.—Fort Worth 1957, writ ref’d n.r.e.).
Whether appellants’ question exactly fits the definition of a commitment question,
we hold the trial court did not abuse its discretion in refusing to allow appellants’ counsel
to ask it. We therefore overrule appellants’ second issue.
IV
In their fourth issue, appellants contend that because USAWP filed a plea in
abatement after appellants amended their petition to assert DTPA violations, and
appellants did not timely respond to it, any actions the trial court took during the abatement
period were void. Specifically, appellants allege that the trial court’s orders and two
depositions taken during the abatement period were “legal nullities.” Further, appellants
argue that the trial court abused its discretion in admitting excerpts from the two
depositions at trial, because as nullities, they amounted to incompetent evidence that will
8
not support a judgment. Appellants contend that the entire case must be reversed and
remanded because “[t]here is no way to determine what effect the admission of the legal
nullity depositions had on the jury’s verdict.”
Here, USAWP, the only DTPA defendant, timely filed its plea in abatement on
October 27, 2009, about two weeks after appellants amended their petition to add DTPA
claims against it. Appellants did not respond. On November 13, 2009, the trial court
granted the plea in abatement after an oral hearing, ordering appellants to provide the
written notice mandated by section 17.505 within twenty-one days. See Tex. Bus. & Com.
Code § 17.505(a). The order specified, however, that USAWP agreed to waive abatement
if proper written notice was given. Appellants acknowledge that on December 4, 2009,
twenty-one days later, they provided the statutory notice.
Shortly after that, appellants filed a motion to set aside the trial court’s November
13 order, arguing that the trial court lacked authority to enter the order because the case was
automatically abated on November 7, six days earlier. See Tex. Bus. & Com. Code §
17.505(d) (providing for automatic abatement without court order beginning on the
eleventh day after the date a plea in abatement is filed if not controverted by an affidavit
filed by the consumer before the eleventh day after the date on which the plea in abatement
is filed). On December 4, 2009, the trial court denied appellants’ motion. The trial court’s
order reflected that, during the November 13 hearing on the plea in abatement, the trial
court expressly acknowledged USAWP’s waiver of the of the abatement, and “stated that
that parties would be allowed to proceed with the scheduled depositions in Frisco, Texas
that were set for November 23, 2009.”
Section 17.505(a) of the DTPA requires that, as a prerequisite to filing a suit that
seeks damages under section 17.50(b)(1) against any person,
a consumer shall give written notice to the person at least 60 days before
filing the suit advising the person in reasonable detail of the consumer's
specific complaint and the amount of economic damages, damages for
9
mental anguish, and expenses, including attorneys’ fees, if any, reasonably
incurred by the consumer in asserting the claim against the defendant.
Tex. Bus. & Com. Code § 17.505(a). The purpose of the notice period is to encourage
parties to resolve disputes short of litigation. Hines v. Hash, 843 S.W.2d 464, 469 (Tex.
1992). If a plaintiff files an action for damages under the DTPA without first giving the
required notice and a defendant timely requests an abatement, the trial court must abate the
proceedings if it determines that notice was not provided as required. See Tex. Bus. &
Com. Code § 17.505(c), (d), (e). A defendant may waive his objection to a lack of notice.
Hines, 842 S.W.2d at 469.
USAWP, as the only party entitled to seek abatement, also had the right to waive
abatement. See id. Generally, waiver is the intentional relinquishment of a known right or
intentional conduct inconsistent with claiming that right. Jernigan v. Langley, 111 S.W.3d
153, 156 (Tex. 2003). A party’s express renunciation of a known right can establish
waiver. Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 643 (Tex. 1996). The trial
court’s November 13 order reflects that USAWP agreed to waive the abatement if
appellants provided the statutorily required written notice, and the appellants complied
with that order. Thus, we hold that the trial court did not lack authority to enter the ensuing
orders acknowledging USAWP’s right to waive the abatement period and refusing to set
aside that order.
In their brief, appellants do not mention USAWP’s waiver or assert that waiver
cannot apply. Instead, appellants rely on the statutory language providing for automatic
abatement and this court’s opinion in In re Kimball Hill Homes Tex., Inc., 969 S.W.2d 522
(Tex. App.—Houston [14th Dist.] 1998, orig. proceeding). In Kimball Homes, the court
held that the trial court abused its discretion by failing to abate a case based on the
plaintiffs’ failure to provide the pre-suit notice required by the Residential Construction
Liability Act. Id. at 526–27. In explaining the basis for its holding, the court stated:
“Abatement of an action not only precludes the trial court from going forward on a case, it
10
prohibits the parties from proceeding in any manner until the case has been reinstated.” Id.
at 527. But Kimball Homes is distinguishable because in that case the complaining party
was a defendant seeking a statutory abatement right it had been denied, not a plaintiff
seeking to benefit from an abatement period triggered in part by the plaintiff’s own failure
to comply with the requisite notice requirements. See id. at 526–27. Further, no party in
Kimball Homes asserted that the defendant agreed to waive the abatement period.
Therefore, Kimball Homes is not controlling on these facts. Moreover, this court has
recognized that, even during abatement, a trial court maintains the authority to manage its
own docket. See 3V, Inc. v. JTS Enters., Inc., 40 S.W.3d 533, 540 (Tex. App.—Houston
[14th Dist.] 2000, no pet.).
Even assuming the trial court erred, however, we cannot conclude that the alleged
error probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1(a).
Appellants complain that appellees deposed two witnesses, A.N. and R.S., during the
abatement period, and used the depositions at trial although the depositions purportedly
were legal nullities. Although appellants claim the testimony is incompetent and, for this
reason, cannot be considered by this court in reviewing the sufficiency of the evidence, as
noted above, appellants failed to preserve error on their legal-sufficiency issue. We
overrule appellants’ fourth issue.
V
In their fifth issue, appellants contend that the trial court’s order granting USAWP’s
special exceptions to appellants’ fifth amended petition was a nullity because appellants
filed a sixth amended petition before the trial court signed the order. Thus, appellants
argue, the trial court’s order sustained exceptions to a pleading that no longer existed. See
CIGNA Ins. Co. v. TPG Store, Inc., 894 S.W.2d 431, 434 (Tex. App.—Austin 1995, no
writ) (noting that an amended petition supersedes all previous petitions); Direkly v. ARA
Devcon, Inc., 866 S.W.2d 652, 655 (Tex. App.—Houston [1st Dist.] 1993, writ dism’d
w.o.j.) (same). Further, appellants contend that, during trial, the trial court ordered
11
appellants to re-plead, making “a substantive ruling” on the pleadings, which was an abuse
of discretion requiring reversal and remand. Appellants do not explain how the
“substantive ruling” may have affected them.
Presuming for the sake of argument that the trial court abused its discretion in this
instance, we conclude that any such error did not probably cause the rendition of an
improper judgment and did not probably prevent the appellants from properly presenting
this case on appeal. See Tex. R. App. P. 44.1(a). We therefore overrule appellants’ fifth
issue.
VI
In appellants’ sixth, seventh, and eighth issues, they complain about the imposition
of sanctions in the amount of $4,125.00 in attorney’s fees and expenses against V.J., the
mother of E.J., in favor of J.S., the father of P.S. Specifically, appellants contend that: (1)
when claims against a defendant have been severed from the case that defendant may not
file a motion for sanctions after the judgment is entered and have sanctions awarded to him;
(2) a trial court abuses its discretion by imposing sanctions against a party without
requiring that the attorney responsible for preparing the pleading is also “held to account”;
and (3) a trial court abuses its discretion when it does not impose sanctions against a person
who intervenes, seeking sanctions, after the final judgment is signed.
A
To put the issues in context, we outline additional facts relevant to their resolution.
Appellants originally sued J.S. individually for negligence, alleging that he was a
chaperone on the trip charged with supervising the water-polo team members, including
E.J. J.S. denied the allegations and moved for summary judgment. Appellants filed a
response supported by an affidavit in which V.J.4 stated the following:
4
V.J. submitted the affidavit as “Jane Doe,” but for consistency we refer to her throughout as V.J.
12
“It is my belief that [J.S.] went on the trip as a chaperone for the team
members. This was based on my prior dealings with Houston Water Polo
League activities and trips.”
After deposing V.J., J.S. filed a motion for sanctions for frivolous pleadings and claims on
March 13, 2009, seeking monetary relief in the form of attorney’s fees and expenses under
Rule 13 of the Texas Rules of Civil Procedure and Chapter 10 of the Texas Civil Practice
and Remedies Code.
In the sanctions motion, J.S. alleged that, even though other parents attended the
tournament, appellants and their lawyers singled out J.S. and sued him individually
“[w]ithout any factual or legal basis whatsoever.” J.S. further claimed that he repeatedly
sought a voluntary dismissal from the case, but when that was unsuccessful he filed a
motion for summary judgment and was “forced to incur the considerable cost” of attending
V.J.’s deposition. According to J.S., V.J. admitted during her deposition that she had no
factual evidence to support her “belief” that J.S. was a chaperone on the trip, and she also
admitted she had no factual basis to refute J.S.’s evidence that he was not a chaperone.
On June 1, appellants non-suited their claims against J.S. Four days later, before the
hearing on J.S.’s motion for summary judgment began, the trial court signed an order
dismissing without prejudice appellants’ claims against J.S. At some point after
non-suiting the claims against J.S., appellants amended their petition to include claims of
tortious interference with contract and extortion against J.S. individually and as next friend
of P.S. On June 7, 2010, the trial court severed the new claims against J.S. on the
co-defendants’ motion, which appellants did not oppose. J.S. did not obtain a ruling on his
sanctions motion until after the trial court rendered final judgment in the case under review.
Appellants’ claims against appellees, USAWP, the coaches, and the minor boys
then proceeded to trial. After the jury found in favor of the appellees and the trial court
signed a final judgment based on the jury’s verdict, J.S. filed a “Motion to Modify Final
Judgment to Incorporate Sanctions for Frivolous Pleadings and Claims as Part of Final
13
Judgment.” In this motion, he re-urged his request for sanctions against appellants and their
attorneys and sought an award of attorney’s fees and expenses incurred in his defense.
On November 15, 2010, while still possessed of plenary power in the case under
review, the trial court entered an order granting J.S. sanctions against V.J. In its order, the
trial court made several findings, including a finding that V.J. signed an affidavit in support
of appellants’ response to J.S.’s motion for summary judgment that had no evidentiary
support and was “filed for improper purposes, including harassment, delay, and causing
[J.S.] needless attorney’s fees, costs and expense.” The trial court also found that
appellants’ claims based on factual assertions or contentions that J.S. was a team chaperone
on the Utah water-polo trip “had no basis in fact” and were “groundless and brought in bad
faith or for purposes of harassment.” The trial court’s order reflects that it made its findings
“after taking judicial notice of all pleadings on file in the above-captioned lawsuit,
conducting an evidentiary hearing, and hearing argument of counsel,” but our appellate
record does not include a reporter’s record of the hearing. Appellants do not challenge the
trial court’s findings or the amount of the sanctions.
B
1
Appellants first contend that, because the claims against J.S. were severed on June
7, 2010, J.S. was no longer a defendant and therefore his post-judgment motion was in fact
an untimely intervention. See Tex. R. Civ. P. 60; Tex. Mut. Ins. Co. v. Ledbetter, 251
S.W.3d 31, 36 (Tex. 2008) (stating that generally one cannot intervene after final
judgment). Therefore, the trial court should have denied the motion.
Although appellants assert that J.S.’s motion for sanctions was not brought before
he was initially dismissed from the case or before the severance was ordered, that is not
correct. As discussed above, J.S.’s motion for sanctions was first filed on March 13, 2009,
before the claims against him were nonsuited. Rule 162 of the Texas Rules of Civil
14
Procedure expressly states, “A dismissal under this rule shall have no effect on any motion
for sanctions, attorney’s fees or other costs, pending at the time of dismissal, as determined
by the court.” The trial court’s dismissal order did not specifically address J.S.’s pending
motion for sanctions or otherwise indicate that the order was intended to be a final order.
Accordingly, neither the nonsuit nor the trial court’s dismissal order disposed of J.S.’s
motion for sanctions. See Tex. R. Civ. P. 162; Unifund CCR Partners v. Villa, 299 S.W.3d
92, 96–97 (Tex. 2009) (per curiam); Crites v. Collins, 284 S.W.3d 839, 840–41 (Tex.
2009) (per curiam).
Likewise, the severance order did not address or affect J.S.’s sanctions motion. The
order addressed only the severance of appellants’ causes of action for alleged tortious
interference with contract and extortion asserted against J.S.; therefore, J.S.’s motion for
sanctions remained pending before the trial court in this case. See Mantri v. Bergman, 153
S.W.3d 715, 718 (Tex. App.—Dallas 2005, pet. denied) (holding that motion for sanctions
was not an independent cause of action and should be decided by trial court where
frivolous pleading is pending).
Finally, the Texas Supreme Court has expressly approved the practice of moving to
modify a judgment to assess fees as sanctions in the same lawsuit as J.S. did here. See Lane
Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310–12 (Tex. 2000). For these
reasons, we overrule appellants’ sixth issue.
2
In their seventh issue, appellants contend that the trial court abused its discretion by
imposing sanctions against V.J. without requiring that the attorney responsible for
preparing the pleading also be “held to account.” According to appellants, what V.J. signed
was not an affidavit, even though it was denominated as such, because “[w]hat she swore to
was her belief, which is not an affidavit.” Further, the trial court made no finding as to
conduct of V.J.’s earlier counsel “even though the motion for sanctions directly addressed
other pleadings, actions, etc., that only the attorneys could have been involved in.” We
15
review the trial court’s imposition of Rule 13 and Chapter 10 sanctions for an abuse of
discretion. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007).
As an initial matter, we reject appellants’ contention that the trial court abused its
discretion by imposing sanctions on V.J. but not her then-attorneys. Both Rule 13 and
Chapter 10 provide that the trial court can award sanctions against the party, the party’s
attorney, or both. See Tex. R. Civ. P. 13 (trial court may impose sanctions for signing a
pleading, motion, or other paper in violation of this rule “upon the person who signed it, a
represented party, or both”); Tex. Civ. Prac. & Rem. Code § 10.004(a) (providing that
court “may impose a sanction on the person, a party represented by the person, or both”).
Thus, the trial court possessed the authority and discretion to sanction V.J. instead of her
trial counsel because she signed the affidavit on which the summary-judgment response
was based. See Metzger v. Sebek, 892 S.W.2d 20, 52–53 (Tex. App.—Houston [1st Dist.]
1994, writ denied) (upholding trial court sanctions against party who signed false affidavit
in support of response to motion for summary judgment but finding sanction of $994,000
excessive).
We turn next to appellants’ contention that V.J.’s affidavit was not really an
affidavit because she merely testified to a “belief.” Appellants rely on Campbell v. Fort
Worth Bank & Trust to support this contention. See 705 S.W.2d 400, 402 (Tex. App.—Fort
Worth 1986, no writ). But Campbell is distinguishable. In that case, the affiant only made
statements to “the best of [his] knowledge,” and the affidavit lacked any recitation that the
statements were made on personal knowledge or affirmatively showing how the affiant
gained personal knowledge of the facts alleged in the affidavit. See id. at 401–02. Here,
V.J. signed an affidavit supporting a responsive pleading in an effort to defeat J.S.’s motion
for summary judgment, and in it she swore that she had “personal knowledge of all facts
which are set forth in the affidavit and they are true and correct.” She further explained that
she believed J.S. was a chaperone based on her own personal knowledge from her “prior
dealings with Houston Water Polo League activities and trips.” Merely stating a “belief” or
16
“I believe” does not make an affidavit insufficient if other evidence demonstrates the
affiant’s personal knowledge. See Moya v. O’Brien, 618 S.W.2d 890, 893 (Tex.
App.—Houston [1st Dist.] 1981, writ ref’d n.r.e.).
Even if the affidavit were incompetent evidence, the trial court still could have
found V.J.’s conduct in signing it sanctionable. The trial court could have determined that
V.J. signed the affidavit in an improper attempt to defeat J.S.’s motion for summary
judgment by seeking to convince the trial court that she had personal knowledge J.S. “went
on the trip as a chaperone for the team members.” The trial court’s order granting sanctions
reflects its findings that appellants’ response to J.S.’s motion for summary judgment and
V.J.’s supporting affidavit were filed for “improper purposes” and that appellants’ claims
based on factual assertions that J.S. was a team chaperone “had no basis in fact.” We reject
any assertion by appellants that V.J. should be excused and an award of sanctions reversed
merely because her sanctionable conduct may have been poorly executed.
Moreover, because appellants have failed to provide the reporter’s record of the
evidentiary hearing held on the sanctions motion, we must presume that sufficient evidence
was introduced to support the trial court’s order. See Simon v. York Crane & Rigging Co.,
739 S.W.2d 793, 795 (Tex. 1987); see also Michiana Easy Livin’ Country, Inc. v. Holten,
168 S.W.3d 777, 783 (Tex. 2005) (when proceedings indicate an evidentiary hearing was
held, complaining party must present a record of that hearing to establish harmful error).
We therefore overrule appellants’ seventh issue.
3
Finally, appellants contend the trial court abused its discretion by failing to award
them sanctions against J.S.’s counsel “for bringing an intervention after the final
judgment.” Appellants do not direct us to any place in the record where they brought a
request for sanctions to the trial court’s attention. We have already explained that J.S.’s
motion to modify the final judgment to incorporate sanctions was not an untimely
intervention; therefore, we overrule appellants’ eighth issue.
17
VII
In their ninth issue, appellants contend the trial court abused its discretion when
“throughout the trial” it sustained objections to questions which asked the witness
“whether or not” something had occurred on the grounds that the questions were leading.
See H.E. Butt Grocery Co. v. Heaton, 547 S.W.2d 75, 77 (Tex. Civ. App.—Waco 1977, no
writ) (“The mere fact that plaintiff was asked to state ‘whether or not’ the fact existed did
not make this particular question leading.”). But appellants direct us to only three examples
in the record, and do not discuss the questions or provide any analysis. Presuming for the
sake of argument that the trial court abused its discretion in sustaining these objections, we
conclude that any such error did not probably cause the rendition of an improper judgment
and did not probably prevent the appellants from properly presenting this case on appeal.
See Tex. R. App. P. 44.1(a). We overrule appellants’ ninth issue.
VIII
Appellants frame their tenth issue as follows: “When an attorney asks a question
which suggests to the jury the effect of their answer, and the party is denied the opportunity
to then state their objection on the record and obtain a ruling, is that party is (sic)
impermissibly denied the ability to preserve the appellate record.” Appellants contend this
issue arose during cross-examination of appellants’ expert on attorney’s fees.
According to appellants, the question asked by counsel for USAWP impermissibly
suggested the effect of the answer to the jury.5 Appellants requested a bench conference,
which was held off the record, and then immediately hand-wrote a motion for mistrial and
filed it. After the bench conference, the trial court instructed the jury concerning a party’s
burden of proof when seeking attorney’s fees. Later, appellants were permitted to place
their motion for mistrial on the record during a recess in which the issue was argued at
5
Counsel for USAWP asked, “Let me see if I got your testimony boiled down to low gravy for me.
From what I’ve heard you’re testifying as to an hourly rate and an amount of fees that pursuant to the fee
agreement the plaintiffs in this case will never have to pay. True?” Counsel for USAWP was apparently
referring to the fact that appellants had a contingency-fee agreement with their counsel.
18
length. The trial court then denied the motion for mistrial. Although not entirely clear,
appellants appear to contend that the trial court abused its discretion by not allowing them
to pursue an adverse ruling on the record immediately after the allegedly improper question
was asked. Presuming that the trial court erred in this regard, the trial court later recited on
the record that it had overruled appellants’ objection at the bench conference, thus
reflecting that appellants timely obtained an adverse ruling. Therefore, the trial court did
not prevent appellants from preserving error. In addition, despite overruling the objection,
the trial court gave the jury a curative instruction after the unrecorded bench conference.
Appellants did not prevail on liability and therefore the jury did not even reach the
questions regarding damages and attorney’s fees. Presuming that the trial court erred in
overruling appellants’ objection to this question, we conclude that any such error did not
probably cause the rendition of an improper judgment and did not probably prevent the
appellants from properly presenting this case on appeal. See Tex. R. App. P. 44.1(a). We
therefore overrule appellants’ tenth issue.
IX
In their eleventh issue, appellants contend that reversal and remand is required
because “[t]he cumulative errors demonstrated herein show that Appellants were denied a
fair trial.” Beyond a single citation to In re Murchison, 349 U.S. 133, 136 (1955), for the
maxim that a fair trial is a basic requirement of due process, appellants have failed to
provide argument, analysis, citations to the record, or legal authority to support this issue.
By failing to brief this issue, appellants have waived it. See Neely v. Comm’n for Lawyer
Discipline, 302 S.W.3d 331, 351 (Tex. App.—Houston [14th Dist.] 2009, pet. denied.).
X
Lastly, in their first issue, appellants contend that reversal and remand is required
because they were deprived of a complete record of the proceedings through no fault of
their own. Appellants point out that some bench conferences were not recorded even
though Texas Rule of Appellate Procedure 13.1 requires a court reporter, unless excused
19
by agreement of the parties, to “attend court sessions and make a full record of the
proceedings.” Tex. R. App. P. 13.1(a). Further, before the trial started, appellants filed a
“Request for Stenographic Recording of Proceedings,” specifically requesting that “any
action in this matter” be recorded. Appellants contend they objected to the court reporter’s
failure to record bench conferences, but the trial court stated that none of the bench
conferences were recorded. The bench conferences at issue were those that took place
while the jury remained in the courtroom and while noise generators were used to prevent
the jury from hearing the discussion at the bench.
The first bench conference occurred during the opening statement by counsel for
USAWP, at which point the court explained to the jury that it was putting on some
background noise provided by the county. Several more bench conferences occurred as the
opening statements continued. Appellants first expressed concern about the unrecorded
bench conferences after moving for a mistrial during opening statements. Numerous
unrecorded bench conferences followed, and appellants later requested that a record be
made of the bench conferences.
To preserve error regarding the court reporter’s failure to make a record of all the
bench conferences, appellants were required to obtain a ruling from the trial court on a
timely objection, request, or motion. See Elec. Bankcard Sys. v. Retriever Indus., No.
14-04-00452-CV, 2005 WL 3435294, at *2 & n.8 (Tex. App.—Houston [14th Dist.] Dec.
15, 2005, no pet.) (mem. op.); see also Valle v. State, 109 S.W.3d 500, 508–09 (Tex. Crim.
App. 2003); Velazquez v. State, 222 S.W.3d 551, 556–57 (Tex. App.—Houston [14th
Dist.] 2007, no pet.). We presume for the sake of argument that appellants preserved error
regarding the failure of the court reporter to make a record of the bench conferences and
that the trial court’s rulings on appellants’ objections or requests were erroneous, and we
examine whether this error would be harmful. See Tex. R. App. P. 44.1(a) (providing error
of law is not reversible unless it probably caused the rendition of an improper judgment or
probably prevented the appellant from properly presenting the case to the court of appeals).
20
Appellants point to part of the reporter’s record during appellants’ examination of
expert witness Mitchell Young, M.D. Appellants assert that the trial court sustained two
objections asserted by one defendant and that the grounds for the objection were not stated
on the record but were discussed at an unrecorded bench conference just before the
defendant lodged these objections. Appellants argue that because there is no record of the
bench conference, this court cannot know the objection that was lodged and cannot
determine whether the ruling was correct. But appellants have not assigned error on appeal
as to these evidentiary rulings, nor have appellants argued that they wanted to assign error
as to these rulings but were unable to properly present this argument because no record was
made of the bench conferences. In any event, if appellants had challenged these rulings,
this court would uphold the rulings if there is any ground for doing so, even if the trial court
did not rely upon the proper ground and even if the defendant did not assert a proper
ground for excluding the evidence. See State Bar of Tex. v. Evans, 774 S.W.2d 656, 658 n.
5 (Tex. 1989); Racciato v. Davies, No. 14-05-00354-CV, 2006 WL 2254402, at *3 (Tex.
App.—Houston [14th Dist.] Aug. 8, 2006, no pet.) (mem. op.).
Appellants also suggest that the lack of a record of the bench conferences interfered
with their ability to present their second issue. But we have been able to determine that the
second issue and all of appellants’ other issues lack merit without the need for the record of
the bench conferences. After reviewing the record, we conclude that the failure of the court
reporter to make a record of the bench conferences did not probably cause the rendition of
an improper judgment and did not probably prevent appellants from properly presenting
this case on appeal. See Tex. R. App. P. 44.1(a); Garza v. Garza, 217 S.W.3d 538, 556–57
(Tex. App.—San Antonio 2006, no pet.); Palmer v. Espey Huston & Assocs., 84 S.W.3d
345, 351 (Tex. App.—Corpus Christi 2002, pet. denied). We overrule appellants’ first
issue.
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***
We overrule appellants’ issues and affirm the trial court’s judgment.
/s/ Jeffrey V. Brown
Justice
Panel consists of Justices Frost, Seymore, and Brown.
22