Tommy Delesandri as Next Friend for Gregory Delesandri v. Rojay, LLC, D/B/A Ponderosa Apartments ( 2012 )

Opinion filed September 20, 2012
In The
Eleventh Court of Appeals
__________
No. 11-10-00236-CV
__________
TOMMY DELESANDRI AS NEXT FRIEND FOR
GREGORY DELESANDRI, Appellant
V.
ROJAY, LLC, D/B/A PONDEROSA APARTMENTS, Appellee
On Appeal from the 118th District Court
Howard County, Texas
Trial Court Cause No. 46926
MEMORANDUM OPINION
This appeal arises out of a lawsuit Gregory Delesandri filed against Rojay, LLC, d/b/a
Ponderosa Apartments. Delesandri allegedly fell on some stairs at the Ponderosa Apartments
and sustained severe head injuries. Delesandri nonsuited his cause of action. The trial court
subsequently held a hearing on the motion to compel and motion for sanctions that had been filed
by Rojay before the nonsuit. The trial court entered an order granting the motion and ordering
Delesandri “and/or his attorney of record, Charles Dunn, [to] pay $2500.00 for reasonable
expenses incurred, including attorney’s fees,” and also to “pay $675.00” for ad litem1 fees.
Delesandri appeals. We affirm.
Delesandri presents two issues for review. In his first issue, Delesandri asserts that the
trial court abused its discretion in sanctioning him and his attorney because there is no evidence
that sanctionable conduct occurred or to whom the conduct could be attributed. In the second
issue, Delesandri contends that the trial court abused its discretion in the award of the ad litem
fees because there was no notice of a hearing on that issue and no evidence as to the amount, the
reasonableness, or the necessity of such fees. In this issue, Delesandri also asserts that the trial
court abused its discretion in ordering Dunn, a nonparty, to pay the ad litem fees.
First, we must address the jurisdictional issue raised by Rojay in its brief. Rojay asserts
that this court has no jurisdiction to entertain this appeal because the trial court has not entered a
final judgment in this case. We disagree. The trial court’s order granting Delesandri’s motion
for nonsuit and its order granting Rojay’s motion collectively disposed of all of the claims
between the parties. See Crites v. Collins, 284 S.W.3d 839, 841 (Tex. 2009); Villafani v. Trejo,
251 S.W.3d 466, 468 (Tex. 2008). Thus, the order from which Delesandri appeals is a final,
appealable order that may be considered on appeal to this court. See Villafani, 251 S.W.3d at
470 (recognizing that monetary sanctions “may serve compensatory and punitive purposes
beyond the specific proceeding and, therefore, survive a nonsuit and can be the subject of an
appeal”).
Next, we note that Dunn did not file a notice of appeal and has not perfected an appeal on
his own behalf. Dunn filed a notice of appeal on Delesandri’s behalf as the attorney for
Delesandri, but Dunn did not join as an appellant in that notice of appeal. The notice of appeal
indicates that only “Delesandri . . . desires to appeal.” Under TEX. R. APP. P. 25.1, a party who
seeks to alter the trial court’s judgment or other appealable order must file a notice of appeal.
Consequently, we will address the issues as they relate to Delesandri, not Dunn. See Sluder v.
Ogden, No. 03-10-00280-CV, 2011 WL 116058, at *2 (Tex. App.—Austin Jan. 13, 2011, pet.
denied) (mem. op.) (holding that appellate court lacked jurisdiction to decide appeal of attorney
who had not joined in party’s notice of appeal); Matbon, Inc. v. Gries, 287 S.W.3d 739, 740
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We note that the trial court’s order incorrectly refers to the fees as “attorney” ad litem fees instead of
guardian ad litem fees.
2
(Tex. App.—Eastland 2009, no pet.); Benavides v. Knapp Chevrolet, Inc., No. 01-08-00212-CV,
2009 WL 349813, at *3 (Tex. App.—Houston [1st Dist.] Feb. 12, 2009, no pet.) (mem. op.).
In his first issue, Delesandri contends that the trial court abused its discretion when it
ordered him to pay expenses and attorney’s fees, arguing specifically that Rojay presented no
evidence of sanctionable conduct. In its motion, Rojay alleged that Delesandri failed to properly
respond to one of the questions asked in the second set of interrogatories, and Rojay sought
$2,500 “for reasonable expenses and attorney fees incurred in filing this motion.” Rojay asserted
that Delesandri provided the same telephone number that he had previously provided and for
which records had already been subpoenaed. The interrogatories are not included in the record
on appeal. However, in his response to Rojay’s motion, Delesandri quoted the interrogatory in
question as follows: “Please list the cellular carrier name, and cellular telephone number for a
cellular device in your custody and/or control at the time of the incident made the basis of this
suit through August 2009.” Delesandri, in his response, denied withholding any telephone
number.
The trial court held a hearing on Rojay’s motion. Neither Delesandri nor Dunn appeared
at the hearing despite being notified of the hearing. At the hearing, an attorney for Rojay first
explained to the court that Delesandri, by this suit, had perpetrated a fraud upon the court and the
system because Delesandri had faked his injuries in order to bring this suit and to obtain social
security benefits. Rojay had obtained affidavits from two witnesses indicating that Delesandri
and his girlfriend had discussed “faking” an injury “about half a day before it happened.” A
deputy, with whom Delesandri had been cooperating in an unrelated matter, had numerous
videos showing Delesandri was “perfectly fine,” in stark contrast to Delesandri’s actions at his
deposition where Delesandri acted and spoke like a young child, appeared to be incapacitated,
and could not even answer questions as simple as his age or name. Rojay’s attorney then stated
that there was some indication that “Dunn knew for some time that this was a false claim.”
Rojay’s attorney then requested the phone records that had previously been submitted to
the trial court for an in camera inspection (based upon Dunn’s filing of a motion to quash the
subpoena duces tecum) and also addressed Rojay’s request for sanctions. One reason given for
Rojay’s request for Delesandri’s phone records was to determine if the records revealed long
conversations, which would indicate he was able to communicate. Another reason given was to
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determine whether Delesandri had a conversation on the day of the alleged injury, June 20, 2009,
with the person who resided in the apartment near the stairs. The trial court noted that the
records for the phone number that Delesandri had provided to Rojay “don’t start until August,” a
couple of months after the incident. Another attorney representing Rojay then explained the
difficulty that they had faced in getting Delesandri to give them “correct phone numbers.” With
the additional discovery and the second set of interrogatories, Rojay was “trying to obtain
another telephone number.” The filing of the motion to compel was necessitated when
Delesandri disclosed no other telephone number but, instead, repeated the number that he had
previously disclosed but that did not “start until August.” Rojay specifically sought discovery of
the phone number that Delesandri had on the date of the incident. After a discussion between
Rojay’s attorneys and their legal assistant, it was ultimately determined that Delesandri had not
provided Rojay with “the correct cell phone number for the cell phone they had at the time of the
incident.” Thereafter, Rojay’s attorney asked the trial court to impose sanctions of $2,500 for the
“failure to comply with discovery.”
When the discovery process is abused, a trial court may order sanctions as provided for
by Rule 215 of the Texas Rules of Civil Procedure. See TEX. R. CIV. P. 215.1–215.3. Rule
215.1 authorizes the imposition of sanctions when an evasive or incomplete answer has been
provided in response to a discovery request. See Rule 215.1(b), (c); see also Rule 215.2(b).
Under Rule 215.1(d), when a motion to compel is granted, “the court shall, after opportunity for
hearing, require a party or deponent whose conduct necessitated the motion or the party or
attorney advising such conduct or both of them to pay . . . the moving party the reasonable
expenses incurred in obtaining the order, including attorney fees.” Additionally,
Rules 215.2(b)(8) and 215.3 authorize the trial court to impose reasonable expenses, including
attorney’s fees, as a sanction.
Discovery sanctions are discretionary and are reviewed on appeal for an abuse of
discretion. Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006). A trial court
abuses its discretion when it acts without reference to any guiding rules and principles, such that
its ruling is arbitrary or unreasonable. Id. An appellate court reviewing sanctions must ensure
that the sanctions were just and must measure the sanctions using two standards: (1) there must
be a direct relationship between the conduct and the sanction imposed and (2) the sanction must
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not be excessive. Id.; TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex.
1991). In reviewing an order imposing sanctions, we must independently review the entire
record. Am. Flood Research, 192 S.W.3d at 583.
The trial court did not enter an excessive sanction in this case. The trial court awarded
only $2,500 to cover the expenses that Rojay incurred as a result of having to file a motion to
compel. Rule 215 authorizes the imposition of this type of sanction. No other sanctions were
imposed. Furthermore, a direct relationship existed between the sanction imposed and
Delesandri’s and Dunn’s conduct in failing to disclose the phone number that Delesandri had on
the date of the incident and in repeatedly providing a number issued two months after the
incident. We cannot hold that the discovery sanction imposed by the trial court constituted an
abuse of discretion under the circumstances of this case.
Delesandri also complains that Rojay “failed to put on any evidence” of the amount of
expenses or attorney’s fees incurred as a result of Delesandri’s alleged discovery abuse. This
contention is also without merit. When attorney’s fees are assessed as a sanction, no proof of
necessity or reasonableness is required. Prize Energy Res., L.P. v. Cliff Hoskins, Inc., 345
S.W.3d 537, 575–76 (Tex. App.—San Antonio 2011, no pet.). “A trial court can take judicial
notice of the usual and customary fees awarded as a discovery sanction.” Cire v. Cummings, 134
S.W.3d 835, 844 (Tex. 2004); see TEX. CIV. PRAC. & REM. CODE ANN. § 38.004 (West 2008).
Because the trial court’s imposition of a sanction in the amount of $2,500 was presumptively
based on its judicial notice of reasonable attorney’s fees, the sanction was supported by sufficient
evidence. See Trahan v. Lone Star Title Co. of El Paso, Inc., 247 S.W.3d 269, 282–83 (Tex.
App.—El Paso 2007, pet. denied); In re Estate of Kidd, 812 S.W.2d 356, 359 (Tex. App.—
Amarillo 1991, writ denied). We cannot hold that the trial court abused its discretion when it
imposed the $2,500 sanction in this case. The first issue on appeal is overruled.
In his second issue, Delesandri complains of the trial court’s award of the $675 ad litem
fee. The record shows that the trial court had appointed a guardian ad litem for Gregory
Delesandri in accordance with TEX. R. CIV. P. 173. The ad litem filed an expense report with the
trial court and also sent it to the parties’ attorneys. Attached to the report is a detailed statement
of the hours that the ad litem spent and the expenses he incurred, totaling $675. There is no
record of any objection to the ad litem’s expense report, and no complaint was made to the trial
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court regarding its award of ad litem fees. Consequently, the issue of the ad litem fees has not
been preserved for review. TEX. R. APP. P. 33.1(a); Clements v. Minn. Life Ins. Co., 176 S.W.3d
258, 266 (Tex. App.—Houston [1st Dist.] 2004, no pet.), superseded by statute on other grounds
as recognized in State Farm Life Ins. Co. v. Martinez, 216 S.W.3d 799, 804 (Tex. 2007);
Schlafly v. Schlafly, 33 S.W.3d 863, 868 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).
Delesandri’s second issue is overruled.
In its brief, Rojay asserts that this appeal is frivolous and requests damages under TEX. R.
APP. P. 45. Because we do not believe this appeal is frivolous, we decline to award damages
under Rule 45.
The order of the trial court is affirmed.
PER CURIAM
September 20, 2012
Panel2 consists of: Wright, C.J.,
McCall, J., and Hill.3
2
Eric Kalenak, Justice, resigned effective September 3, 2012. The justice position is vacant pending appointment of a
successor by the governor or until the next general election.
3
John G. Hill, Former Chief Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.
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