Ricardo Flores, Ricardo Sandoval, and Ronald G. Hole v. Jesucita Garcia, Rafael Garcia, Yuvia Garcia, Individually and as Next Friend of Minor Rylan Martinez ( 2015 )

NUMBER 13-15-00047-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
RICARDO FLORES, RICARDO
SANDOVAL, AND RONALD G.
HOLE, Appellants,
v.
JESUCITA GARCIA, RAFAEL
GARCIA, AND YUVIA GARCIA,
INDIVIDUALLY AND AS NEXT
FRIEND OF MINOR RYLAN
MARTINEZ, Appellees.
On appeal from the County Court at Law No. 7
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Benavides and Longoria
Memorandum Opinion by Justice Longoria
Appellants Ricardo Flores, Ricardo Sandoval, and Ronald G. Hole bring this limited
appeal1 of two monetary sanctions assessed by the trial court. We reverse and render.
I. BACKGROUND
Appellees Jesucita Garcia, Rafael Garcia, and Yuvia Garcia, 2 filed suit against
Flores and Sandoval for injuries appellees suffered as a result of a collision with a tractor
trailer driven by Sandoval. Flores is Sandoval’s employer and Hole is the attorney Flores
and Sandoval retained to represent them in appellees’ suit.3
Appellees filed their original petition on February 20, 2014, and a motion to compel
the depositions of both defendants on April 28, 2014. On May 8, 2014, the trial court held
a hearing on appellees’ motion to compel that was attended only by appellees’ counsel.
The trial court issued an order the same day granting the motion and directing Sandoval
and Flores to make themselves available for depositions on May 14, 2014, at the law
offices of appellees’ trial counsel, Daniel M.L. Hernandez. The defendants filed a motion
to reconsider, alleging that they had received no notice of the hearing on appellees’
motion to compel. The trial court took no immediate action on the motion to reconsider.
The deposition took place at the time, date, and location specified in the trial court’s
order. Flores completed his deposition without incident. Sandoval commenced his
deposition with the help of a Spanish-speaking interpreter. During the course of the
deposition, Hernandez asked Sandoval several questions regarding Sandoval’s
proficiency with the English language and whether he actually needed an interpreter to
1 A party who desires to take a limited appeal from a trial court judgment may request a partial
reporter’s record and must include in that request the issues the party intends to raise on appeal. TEX. R.
APP. P. 34.6(c)(1). The party will be limited to raising those issues. Id.
2 Yuvia sued in her individual capacity and as next friend of Rylan Martinez, a minor.
3 Hole represents Flores and Sandoval on appeal and is also a pro se appellant. For clarity, we
will use “the defendants” when referring to Flores and Sandoval alone and “the appellants” when referring
to all three together.
2
give his deposition. After making several objections to Hernandez’s questions, Hole
stated that he was suspending the deposition pending the trial court’s ruling on a motion
he intended to file to prevent Sandoval from asking further questions that Hole felt to be
abusive. Hole filed a “Motion to Require Defendant Ricardo Sandoval’s Deposition to Be
Taken In Accordance with the Texas Rules of Civil Procedure” to that effect the same
day. Appellees immediately filed a “Motion to Strike Defendants’ Answer, Request for
Sanctions And/or in the Alternative Enforce Court Order” alleging that the defendants
never intended to comply with the trial court’s order compelling them to give depositions.
Appellees’ motion requested that the trial court: (1) strike the defendants’ answer; (2)
compel the deposition to continue; or (3) assess monetary sanctions in the sum of $3,500.
The trial court made no immediate ruling on either motion.
On May 16, 2014, appellees filed medical and billing records from all of the medical
providers where Jesucita Garcia, Rafael Garcia, and Yuvia Garcia received treatment
following the collision.4 In an effort to comply with section 18.001 of the Texas Civil
Practice and Remedies Code, appellees included with the records a Medical Billing
Affidavit and a Medical Records Affidavit signed by each provider’s custodian of records.
See TEX. CIV. PRAC. & REM. CODE ANN. § 18.001(b) (West, Westlaw through 2015 R.S.)
(providing that an affidavit that the amount a person was charged for a service was
reasonable at the time and place the service was provided and that the service was
necessary is sufficient to support a finding by a judge or jury on either matter unless a
controverting affidavit is filed pursuant to that section). The defendants objected to each
affidavit, alleging that the medical billing affidavits did not meet the requirements of
4 Appellees did not file any records or affidavits for Rylan Martinez.
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section 18.001 because the custodians of records who signed the affidavits were not
qualified to opine that the medical services were necessary and the fees reasonable. See
id. § 18.001(c). The defendants further asserted that affidavits did not comply with section
41.0105 of the Texas Civil Practice and Remedies Code by not accurately indicating the
total amount of fees each provider incurred on behalf of each appellee. See id. § 41.0105
(West, Westlaw through 2015 R.S.).
Hole filed an affidavit purporting to controvert appellees’ affidavits. Hole alleged
that he had personal knowledge that “health care providers, such as” each named
provider where appellees received treatment
routinely discount their fees in these types of cases and that such reductions
can be as much as 75%. Also, I have personal knowledge that in these
types of cases, if the patient does not recover, the health care provider
usually does not collect, or even attempt to collect, their total fee from each
patient.
Appellees responded to Hole’s affidavit with a Motion to Strike Affidavits and Disqualify
Counsel alleging that Hole violated the prohibition in the Texas Disciplinary Rules of
Professional Conduct against an attorney acting as an attorney and a witness in the same
case. See TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 3.08, reprinted in TEX. GOV’T
CODE ANN., tit. 2 subtit. G app. A (West, Westlaw through 2015 R.S.).
By an order dated August 7, 2014, the trial court: (1) denied the motion to
disqualify Hole as counsel; (2) granted the motion to strike Hole’s controverting affidavit
and made a finding that Hole’s affidavit “does not meet the requirements for a
controverting affidavit”; (3) denied the motion to strike the defendants’ answer; (4) granted
“a lesser and more tailored sanction in the amount of $3,500.00” payable to Hernandez,
and further provided that the defendants and Hole were jointly and severally liable for it;
4
(5) denied the defendants’ motion to reconsider the court’s order compelling the
defendants to give depositions; and (6) granted the defendants’ motion to finish the
deposition in compliance with the Texas Rules of Civil Procedure.
On September 2, 2014 appellees filed a “Motion for Sanctions for Filing of
Frivolous and Groundless Counter Affidavits.” The motion requested that the court
sanction appellants pursuant to Texas Rule of Civil Procedure 13 and Chapters 9 and 10
of the Texas Civil Practice and Remedies Code for filing the allegedly frivolous and
groundless controverting affidavits. See TEX. R. CIV. P. 13; TEX. CIV. PRAC. & REM. CODE
ANN. §§ 9.012, 10.001 (West, Westlaw through 2015 R.S.). On October 16, 2014, the
trial court granted the motion by written order. The order assessed $1,000 in sanctions
in the form of “reasonable expenses and attorney’s fees” and provided that it was payable
by the defendants or by Hole.
Appellees and the defendants later reached a settlement of the claims between
them, and the trial court entered an agreed take-nothing judgment. No agreement settling
the claims appears in the record, but appellees stated in a motion to this Court that
“[a]ppellants and their insurance company funded the settlement.” Appellants timely filed
a notice of appeal limited to the trial court’s two orders imposing sanctions against them.
II. MOOTNESS
Appellees responded to appellants’ opening brief in this Court with a motion to
dismiss asserting that the settlement between the parties to the underlying case rendered
appellants’ issues moot. Appellants argued in response that the sanctions orders were
independent issues that were not mooted by the settlement.5
5 By letter dated July 24, 2015, we denied appellees’ motion to dismiss and requested them to fully
brief the case, including the issue raised in the motion. Appellees’ appellate counsel moved to withdraw
5
We agree with appellants. Appellees are correct that a live controversy must exist
between the parties at every stage of the legal proceedings, including the appeal.
Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001). “If a controversy ceases to exist—the
issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the
outcome—the case becomes moot.” Id. (quotation marks omitted); see Clements v.
Haskovec, 251 S.W.3d 79, 83 (Tex. App.—Corpus Christi 2008, no pet.). When a party
requests the trial court to enter judgment the party waives appeal of any non-jurisdictional
issues inconsistent with the specifics of the judgment it requested. Hooks v. Samson
Lone Star, Ltd. P'ship, 457 S.W.3d 52, 67 (Tex. 2015) (citing Litton Indus. Products, Inc.
v. Gammage, 668 S.W.2d 319, 322 (Tex. 1984)). However, a judgment entered with the
consent of the parties otherwise has the same force and effect of a judgment entered
after contested litigation. Gulf Ins. Co. v. Burns Motors, Inc., 22 S.W.3d 417, 422 (Tex.
2000). Thus, the party’s waiver of appellate issues inconsistent with the agreed judgment
does not affect the appellate court’s jurisdiction over the appeal itself. See Roman
Catholic Diocese of Dallas v. Cnty. of Dallas Tax Collector, 228 S.W.3d 475, 479 (Tex.
App.—Dallas 2007, no pet.) (holding that “[t]he fact that the nunc pro tunc judgment was
agreed to by the parties does not affect the outcome in this case.”). Appellees point us
to no contrary authority. Accordingly, we conclude that the issues between the parties
related to the sanctions orders are not moot. See Lara, 52 S.W.3d at 184; see also Aetna
Cas. & Sur. Co. v. Specia, 849 S.W.2d 805, 807 n.4 (Tex. 1993) (observing that a nonsuit
from the case in response. We granted counsel’s motion, and appellees now proceed pro se in this Court.
Appellees did not file a brief on the merits. We will nevertheless address the mootness issue appellees
raised in the motion to dismiss because it goes to our jurisdiction over this appeal. See Beldon Roofing
Co. v. Sunchase IV Homeowners' Ass'n, Inc., No. 13-14-00343-CV, ___ S.W.3d ____, ___, 2015 WL
3523157, at *3 (Tex. App.—Corpus Christi June 4, 2015, no pet.) (addressing a jurisdictional issue raised
in a previously-denied motion to dismiss because courts may consider their jurisdiction at any time).
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does not act as a “waiver, bar or adjudication” of monetary sanctions previously assessed
by the trial court).
III. DISCUSSION
We now turn to appellants’ challenges to the order of August 7, 2014 assessing
$3,500 in sanctions (First Sanctions Order), and to the order of October 16, 2014
assessing $1,000 in sanctions (Second Sanctions Order).
A. Standard of Review and Sanctions Law
We review the trial court’s decision to impose sanctions for abuse of discretion
whether the court acted pursuant to Texas Rule of Civil Procedure 215.3 to punish
discovery abuse or pursuant to Texas Rule of Civil Procedure 13 and Chapter 10 of the
Texas Civil Practice and Remedies Code to punish the filing of frivolous pleadings. Nath
v. Tex. Children's Hosp., 446 S.W.3d 355, 361 (Tex. 2014); Cire v. Cummings, 134
S.W.3d 835, 838 (Tex. 2004). A trial court abuses its discretion in imposing sanctions if
it acts without reference to guiding rules or principles such that its decision is essentially
arbitrary. Cire, 134 S.W.3d at 838–39. However, there is no abuse of discretion if “some
evidence” exists in the record to support the trial court’s decision. Unifund CCR Partners
v. Villa, 299 S.W.3d 92, 97 (Tex. 2009).
The trial court abuses its discretion by assessing an unjust or inappropriate
sanction. See Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006). The
Texas Supreme Court has created a two-part inquiry for determining whether a sanction
is “just.” First, there must be a direct relationship between the sanction imposed and the
improper conduct. Id. “[I]n other words, the court should examine whether punishment
was imposed upon the true offender and tailored to remedy any prejudice discovery
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abuse caused.” Id. The trial court should attempt to determine if the sanctioned conduct
is attributable to counsel only, the party only, or both. Spohn Hosp. v. Mayer, 104 S.W.3d
878, 882 (Tex. 2003). Second, a just sanction may not be excessive, which means that
the sanction “should be no more severe than necessary to satisfy its legitimate purposes.”
Id. We apply this two-part test whether the trial court assessed pleading or discovery
sanctions. Nath, 446 S.W.3d at 364.
B. First Sanctions Order
Appellees asserted in their “Motion to Strike Defendants’ Answer, Request for
Sanctions And/or in the Alternative Enforce Court Order” that appellants never intended
to comply with the trial court’s order compelling the defendants to give depositions.
Appellants assert on appeal there is no evidence in the record supporting the trial court’s
conclusion and, alternatively, that any such evidence is limited to Hole.
We agree with appellants. We begin by discussing the events of Sandoval’s
deposition in greater detail. The parties began Sandoval’s deposition with the assistance
of a Spanish-speaking interpreter that Sandoval requested on the day of the deposition.
Hernandez questioned Sandoval through the interpreter regarding whether Sandoval was
obeying traffic laws in the time just prior to the collision. Hernandez also asked Sandoval
whether he blamed the driver of appellees’ vehicle for the collision in any respect.
Sandoval’s answers as they appear in the transcript of the deposition use the male
pronoun in reference to the driver, and Hernandez asked Sandoval to confirm that his
testimony was that the driver was male. Sandoval clarified that the driver was female.
We reproduce a portion of the exchange that followed:
Q. (Mr. Hernandez): Do you know that you’ve been saying he?
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Mr. Hole: The translation was she.
A. I’m sorry.
Q. (Mr. Hernandez) That’s fine. That’s why I’m asking you.
A. Okay. No, I just—I was just answering you. But yes, it was a woman.
Q. Okay. And that’s why I’m asking you. I’m not trying to trick you. All
right?
Mr. Hole: Objection; form.
Q. (Mr. Hernandez) Do you understand that?
A. Yes.
Q. Do you speak English?
A. Yes.
Q. You don’t need an interpreter, do you?
A. Yes. Yes, but I can do better in Spanish. There are things I don’t know
in English. That’s why I’d like it to be in Spanish.
Q. Where did you go to school?
A. In La Joya.
Q. Up to what grade?
A. I got my GED.
Q. You got your GED?
A. Yes.
Q. And you did that all in English?
A. Yes.
Q. And you took your driver’s examination in English, too, didn’t you?
A. Yes.
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Q. So what is it—you have a high school degree?
Mr. Hole: Objection; form.
Q. (Mr. Hernandez) Correct?
A. Yes.
Q. Okay. And you write in English, right?
A. I don’t have—I don’t know how to spell properly.
Q. Anything else that you feel that you need an interpreter for other than
because you don’t know how to spell properly?
A. Well, because I don’t use English a lot. There’s a lot of things that I don’t
know how to say in English.
Q. So you don’t speak English, then?
Mr. Hole: Objection; form.
A. Well, no.
Q. (Mr. Hernandez) Okay. The only language you speak is Spanish?
Mr. Hole: Objection; form. Don’t answer that. That’s been—
Mr. Hernandez: Don’t coach him. Don’t coach him.
Mr. Hole: No, no. You say you’re not trying to trick him and you darned
right are. You know good and well—
Mr. Hernandez: Don’t coach him.
Mr. Hole: I’m not coaching him.
Mr. Hernandez: It’s a speaking objection, Ron.
The remainder of the deposition is taken up by a contentious argument between
Hole and Hernandez regarding whether Hole was making an impermissible speaking
objection. Hole eventually stated that “[w]e’ll recess the deposition and we’ll take it up
with the court. We’re not going to take this deposition—.” Appellees’ counsel refused to
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recess the deposition and offered to call the trial court judge “right now” to secure a ruling.
Hole refused, stating that he had a right to file a motion and suspend the deposition
pending the trial court’s ruling on the motion. Hole stated on the record that he was
recessing the deposition because Hernandez
knows full well [Sandoval] requested an interpreter. He’s mocking him,
making fun of him, because he doesn’t do it. He told you that he speaks
English, but he prefers an interpreter, and then he comes back very
blatantly, ‘you don’t speak any English? Any English at all?’ And he knows
that was false and it was misleading. We asked him to rephrase it, he didn’t,
and we’re recessing the deposition . . . until we can get a ruling from the
court.
Hole filed a motion with the trial court to instruct appellees’ counsel to not ask
“harassing and misleading questions” of Sandoval regarding his ability to speak English.
Hernandez, in turn, filed a motion for sanctions requesting the court to either strike the
defendants’ answer or compel the deposition to resume and assess sanctions in the
amount of $3,500.
We conclude that the record is devoid of any evidence supporting a conclusion
that appellants did not comply in good faith with the trial court’s order compelling the
defendants to give their depositions. It is undisputed that the defendants and Hole
appeared at the date, time, and location specified in the trial court’s order compelling
depositions. The transcript of Flores’s deposition is not in the record, but neither party
asserts that any of the appellants obstructed the deposition. Hole eventually stated that
he was suspending Sandoval’s deposition pending the trial court’s ruling on the motion
he intended to file asking the court to instruct Hernandez to conduct Sandoval’s
deposition according to the Texas Rules of Civil Procedure.
Subsection (f) of Texas Rule of Civil Procedure 199.5 specifically permits an
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attorney to instruct a witness not to answer a question if it is necessary to protect that
witness from an abusive question. TEX. R. CIV. P. 199.5(f). Subsection (g) gives a party
or witness the right to suspend an oral deposition “for the time necessary to obtain a
ruling.” Id. R. 199.5(g). An attorney who instructs a witness not to answer or who
suspends the deposition need only have a good-faith factual and legal basis for doing so.
Id. Hole asserted on the record at the deposition and in a hearing before the court that
he suspended the deposition so that the court could rule on his motion. Hole articulated
a legitimate ground for suspending the deposition and followed the procedure specified
in Texas Rule of Civil Procedure 199.5 to do so and obtain a ruling on his motion. See
id. Admittedly, the trial court later expressed skepticism of Hole’s assertion that
Hernandez’s demeanor and tone were mocking because such factors do not appear in
the deposition transcript. However, the court also granted Hole’s motion to complete the
deposition according to the Texas Rules of Civil Procedure. The trial court’s decision—
made in the same order in which it assessed the challenged $3,500 in sanctions—implies
that the court found at least some merit in Hole’s motion. Giving due deference to the
trial court’s exercise of its discretion, we nevertheless find no evidence in the record
supporting an implied finding that Hole and the defendants did not attempt to comply with
the trial court’s order compelling depositions.
Alternatively, even if we had found a basis for the trial court’s sanctions award in
the record, we would still conclude that the sanction is unjust to the extent it requires
Sandoval and Flores to pay it. A just sanction “should be visited upon the offender. The
trial court must attempt to determine whether the offensive conduct is attributable to
counsel only, to the party only, or to both.” Spohn Hosp., 104 S.W.3d at 883 (citation
12
omitted). While a lawyer cannot shield his or her client from sanctions, a party should not
be punished for their counsel’s conduct unless the party is implicated in the wrongdoing
“apart from having entrusted its legal representation to counsel.” Galindo v. Prosperity
Partners, Inc., 429 S.W.3d 690, 698 (Tex. App.—Eastland 2014, pet. denied) (citing
TransAm. Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991)). Here, there
is no evidence in the record that Flores knew about or participated in any sanctionable
conduct. Sandoval obeyed Hole when Hole instructed him not to answer Hernandez’s
questions and left with Hole after Hole suspended the deposition. Even if instructing
Sandoval not to answer and suspending the deposition was sanctionable conduct by
Hole, there is no evidence in the record that Sandoval or Flores knew or should have
known that Hole was doing anything improper other than the fact that they entrusted Hole
to represent them. See id.; see also Sosa v. Union Pac. R.R. Co., No. 13-13-00257-CV,
2015 WL 2353024, at *8 (Tex. App.—Corpus Christi May 14, 2015, pet. filed) (mem. op.)
(overturning award of death penalty sanctions despite “flagrant” discovery abuse by
counsel because there was no evidence that the appellants knew of the abuse other than
the length of time that the attorney represented them).
In sum, we conclude that the trial court abused its discretion in assessing $3,500
in sanctions against Hole, Flores, and Sandoval, jointly and severally. Additionally, the
sanction is unjust to the extent Flores and Sandoval are liable for it. See Galindo, 429
S.W.3d at 698. We sustain appellants’ first issue.
C. Second Sanctions Order
Appellees alleged in their motion that Hole’s controverting affidavits constituted a
frivolous or groundless claim under Texas Rule of Civil Procedure 13 and section 10.001
13
of the Texas Civil Practice and Remedies Code.6 See TEX. R. CIV. P. 13; TEX. CIV. PRAC.
& REM. CODE ANN. § 10.001 (West, Westlaw through 2015 R.S.). Appellants allege on
appeal that: (1) there is no evidence that rebutted the presumption that appellants filed
the affidavits in good faith; (2) the trial court erred by not specifying its basis for imposing
sanctions; (3) there is no evidence to support the amount of sanctions imposed; and (4)
there is no evidence that Sandoval and Flores were involved in filing the affidavits. We
agree with appellants that we must reverse the Second Sanctions Order because the trial
court did not specify the good cause and basis it found for imposing sanctions.
1. Applicable Law
Texas Rule of Civil Procedure 13 provides that by signing a motion, pleading or
“other paper” a party or attorney certifies that they have read the instrument and that,
after reasonable inquiry, the instrument is not groundless to the best of their knowledge
and belief. TEX. R. CIV. P. 13. However, to warrant sanctions under Rule 13, a pleading
must be both groundless and brought in bad faith or groundless and brought for the
purpose of harassment. Id.; see Nath, 446 S.W.3d at 362–63. “‘Groundless’ for purposes
of [Rule 13] means no basis in law or fact and not warranted by good faith argument for
the extension, modification, or reversal of existing law.” TEX. R. CIV. P. 13. Trial courts
must have “good cause” for imposing sanctions and the court must state the particulars
of the good cause in the order. Id.; see Dike v. Peltier Chevrolet, Inc., 343 S.W.3d 179,
183 (Tex. App.—Texarkana 2011, no pet.). Courts generally presume that pleadings and
6 Appellees also sought sanctions pursuant to Chapter 9 of the Texas Civil Practice and Remedies
Code, which also addresses frivolous claims. However, Chapter 9 only applies in proceedings where
Chapter 10 and Texas Rule of Appellate Procedure 13 are inapplicable. See TEX. CIV. PRAC. & REM. CODE
ANN. § 9.012(h) (West, Westlaw through 2015 R.S.); see also Nath v. Tex. Children's Hosp., 446 S.W.3d
355, 362 n.6 (Tex. 2014).
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other papers are filed in good faith. Nath, 446 S.W.3d at 361. The party seeking
sanctions has the burden of overcoming that presumption. Id.
Similarly, to award sanctions under Chapter 10 of the Texas Civil Practice and
Remedies Code the trial court must find that: (1) the pleading or motion was brought for
an improper purpose; (2) there were no grounds for the legal arguments advanced; or (3)
the factual allegations or denials lacked any evidentiary support. TEX. CIV. PRAC. & REM.
CODE ANN. § 10.001; Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007). An order imposing
sanctions under Chapter 10 must describe “the conduct the court has determined violated
section 10.001 and explain the basis for the sanction imposed.” TEX. CIV. PRAC. & REM.
CODE ANN. § 10.005 (West, Westlaw through 2015 R.S.).
2. Texas Rule of Civil Procedure 13
When reviewing an order imposing sanctions under Texas Rule of Civil Procedure
13 appellate courts ordinarily look to the particulars of the “good cause” set out in the
order. Rudisell v. Paquette, 89 S.W.3d 233, 237 (Tex. App.—Corpus Christi 2002, no
pet.). Failure to set out the particulars of the good cause in the sanction order is error
that may warrant reversal. See id.; Tex.-Ohio Gas, Inc. v. Mecom, 28 S.W.3d 129, 135
(Tex. App.—Texarkana 2000, no pet.) (reaching the same conclusion and listing
numerous opinions from other Texas courts with the same holding). The Second
Sanctions Order states in full:
On the 16th day of October, 2014, came the Plaintiffs’ motion for Sanctions
for Filing of Frivolous and Groundless Counter Affidavits. The Court, having
considered the Counter Affidavits on file herein, evidence, attorney fees,
and arguments of counsel, is of the opinion that the motion should be
GRANTED. IT IS THEREFORE ORDERED, ADJUDGED and DECREED
that Plaintiffs’ Motion for Sanctions for Filing of Frivolous and Groundless
Counter Affidavits be GRANTED and Defendants or its attorneys pay
Plaintiff $1,000 for the reasonable expenses and attorney’s fees incurred in
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presenting this Motion for Sanctions for Filing of Frivolous and Groundless
Counter Affidavits.
The Second Sanctions Order does not state with particularity the good cause for
imposing sanctions. We hold that the trial court erred by not complying with the
requirements of Texas Rule of Civil Procedure 13. See Rudisell, 89 S.W.3d at 237
(holding that it was an abuse of discretion for the trial court to impose sanctions with only
a finding that the motion “appears to have ‘merit’”); Tex.-Ohio Gas, Inc. 28 S.W.3d at 135.
We now analyze for harm. See Rudisell, 89 S.W.3d at 237–38 (performing a
harmless error analysis on noncompliance with particularity requirement in Rule 13); see
also TEX. R. APP. P. 44.1(a). Falling to comply with the particularity requirement of Rule
13 may be harmless error if the trial court’s findings of fact and conclusions of law supply
the necessary particulars of good cause required by Rule 13. See Keith v. Keith, 221
S.W.3d 156, 165 (Tex. App.—Houston [1st Dist.] 2006, no pet.). However, the trial court
in this case denied appellants’ multiple requests for findings of fact and conclusions of
law and did not explain its reasoning for assessing sanctions anywhere else. We
conclude that noncompliance with Rule 13 is reversible error in this case because it
renders appellants “unable to overcome the presumption that the trial court found
necessary facts in support of its judgment.” See Rudisell, 89 S.W.3d at 238 (citation
omitted). The sanctions order may not be sustained under Rule 13. See id.
3. Chapter 10 of the Texas Civil Practice and Remedies Code
We further conclude that we may not affirm the sanctions order under Chapter 10
of the Texas Civil Practice and Remedies Code.7 See TEX. CIV. PRAC. & REM. CODE ANN.
7 When a party seeks sanctions under both Texas Rule of Civil Procedure 13 and Chapter 10 of
the Texas Civil Practice and Remedies Code we will affirm an order imposing sanctions if it is supportable
on either basis. See Zeifman v. Nowlin, 322 S.W.3d 804, 809 (Tex. App.—Austin 2010, no pet.).
16
§ 10.001. Section 10.005 mandates that the trial court “shall describe in an order
imposing a sanction under this chapter the conduct the court has determined violated
section 10.001 and explain the basis for the sanctions imposed.” TEX. CIV. PRAC. & REM.
CODE ANN. § 10.005. This Court has held that the Legislature’s use of “shall” in the text
makes section 10.005 mandatory. Rudisell, 89 S.W.3d at 238; see Sell v. Peters Fine
Art, Ltd., 390 S.W.3d 622, 624 (Tex. App.—Dallas 2012, no pet.) (reaching the same
holding). The Second Sanctions Order does not meet the particularity requirement of
section 10.005 because it does not cite the conduct that the trial court determined violated
section 10.001 and explain the basis for imposing the sanction. See Sell, 390 S.W.3d at
624; Rudisell, 89 S.W.3d at 238. We conclude that the court’s failure to comply with
section 10.005 precludes meaningful appellate review and was therefore an abuse of
discretion. See Rudisell, 89 S.W.3d at 238; see also Cintas Corp. v. Minton, No. 13-06-
00043-CV, 2008 WL 525191, at *4 (Tex. App.—Corpus Christi Feb. 28, 2008, no pet.)
(mem. op.). We may not uphold the Second Sanctions Order pursuant to Chapter 10 of
the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 10.001.
In sum, we hold that the trial court abused its discretion by not complying with the
particularity requirements of Texas Rule of Civil Procedure 13 and section 10.005 of the
Texas Civil Practice and Remedies Code. See TEX. R. CIV. P. 13; TEX. CIV. PRAC. & REM.
CODE ANN. § 10.001. We sustain appellants’ second issue.
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IV. CONCLUSION
We reverse the trial court’s orders of August 7, 2014 and October 16, 2014 to the
extent each assesses sanctions and render judgment that the sanctions be dismissed.
NORA LONGORIA,
Justice
Delivered and filed the
8th day of October, 2015.
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