Richard A. Myers v. Branch Banking & Trust Company ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00080-CV
___________________________
RICHARD A. MYERS, Appellant
V.
BRANCH BANKING & TRUST COMPANY, Appellee
On Appeal from the 96th District Court
Tarrant County, Texas
Trial Court No. 096-259032-12
Before Sudderth, C.J.; Gabriel and Bassel, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION
After obtaining a judgment against Appellant Richard A. Myers, Appellee
Branch Banking & Trust Company (BB&T) served third-party discovery on three
financial institutions in its post-judgment collection efforts. To prevent BB&T from
obtaining documents from the banks, Myers filed a motion for protective order. In
the motion, Myers argued that BB&T gave notice of its intent to serve one set of
subpoenas but may have served a different set of subpoenas on the banks. Myers,
however, produced no evidence that the subpoenas served actually differed. And
Myers apparently took no steps to substantiate his fears before filing his motion.
The trial court denied the motion for protective order and ordered Myers and
his counsel to pay BB&T $1,460.00 in attorney’s fees as a sanction for discovery abuse
under Texas Rule of Civil Procedure 215.3.
In three points, Myers complains that the trial court abused its discretion in
denying the motion for protective order and awarding BB&T its attorney’s fees as
sanctions, and he complains that there is no evidence supporting the imposition of
sanctions or the amount of attorney’s fees awarded. We resolve all three points
against Myers.
First, the trial court did not abuse its discretion by denying Myers’s motion for
protective order. Myers did not establish a particular, specific, and demonstrable
injury by facts sufficient to justify a protective order. Instead, he based his motion on
speculation—and no evidence—that BB&T may have served subpoenas that differed
2
from the subpoenas it attached to its notices. His conclusory assertion that he
supposedly did not have an opportunity to review and object to the subpoenas did
not satisfy his burden.
Second, the trial court did not abuse its discretion by imposing sanctions upon
Myers and his counsel. Myers filed a motion that had the effect of preventing BB&T
from obtaining discovery from the banks, while his counsel did not take the steps
necessary to determine whether his motion had any factual or legal basis before filing
the motion.
Finally, the affidavit of BB&T’s counsel supports the amount of attorney’s fees
awarded by the trial court.
Accordingly, we will affirm.
Background
BB&T obtained a judgment against Myers and others in a foreclosure–
deficiency action. This court affirmed that judgment in a prior appeal. See RCC
Heritage Glade, Ltd. v. Branch Banking & Tr. Co., No. 02-15-00313-CV, 2016 WL
7473932, at *9 (Tex. App.—Fort Worth Dec. 29, 2016, pet. denied) (mem. op.).
BB&T sought post-judgment discovery of Myers’s financial records from three
financial institutions: JPMorgan Chase Bank, N.A. (Chase), Fidelity Brokerage
Services, LLC (Fidelity), and Citibank, N.A. (Citibank) (collectively, the Banks).
On the last business day before the Banks were required to respond to the
discovery requests, Myers filed a motion for protective order. The motion contended
3
that Myers’s counsel did not receive notice that BB&T had filed with the trial court
copies of the subpoenas that BB&T actually served on the Banks, claiming that Myers
was entitled to such notice under Texas Rule of Civil Procedure 191.4. In the motion,
Myers’s counsel admitted that he received BB&T’s ten-day notices of intent to serve
subpoenas on the Banks (the Ten-Day Notices).1 But he argued that in those Ten-
Day Notices, BB&T stated it would issue “amended subpoenas” and then attached
“[u]nsigned forms of subpoenas” and not “amended subpoenas” to the notices. As a
result, the motion argued that counsel was “unable to review and object to the
subpoenas actually served, if any,” on the Banks. Thus, Myers requested a protective
order because BB&T “failed to comply with the applicable rules of discovery to third-
parties [sic].” He stated that the filing of the motion “relieve[d] the [Banks] from
having to comply with any subpoena unless ordered to do so by th[e] [trial] [c]ourt.”
And Myers requested recovery of his attorney’s fees, citing no legal authority for his
request.
1
Under Rule 205.3, “[a] party may compel production of documents and
tangible things from a nonparty by serving . . . the notice required in Rule 205.2 and a
subpoena compelling production or inspection of documents or tangible things.”
Tex. R. Civ. P. 205.3. Under Rule 205.2, “[a] party seeking discovery by subpoena
from a nonparty must serve, on the nonparty and all parties, a copy of the form of
notice required under the rules governing the applicable form of discovery.” Tex. R.
Civ. P. 205.2. “A notice to produce documents or tangible things under Rule 205.3
must be served at least 10 days before the subpoena compelling production is served.”
Id. “[D]iscovery requests, deposition notices, and subpoenas required to be served on
nonparties” must be filed. Tex. R. Civ. P. 191.4(b).
4
BB&T filed a response addressing Myers’s insinuation in his motion for
protective order that BB&T had engaged in subterfuge in connection with the
third-party discovery. BB&T stated, among other things, that the subpoenas it
attached to the Ten-Day Notices were “exactly the same” as the subpoenas it served
on the Banks and that its executed returns of service had been on file since
December 27 and 28, 2018. According to BB&T’s response, Myers’s counsel “never
once conferred with BB&T’s counsel” prior to filing the motion for protective order
and Myers’s filing of the motion prevented BB&T from obtaining any documents
from the Banks, who had not objected to the subpoenas. BB&T requested attorney’s
fees pursuant to Texas Rule of Civil Procedure 215.3, arguing that Myers abused the
discovery process by filing the motion based on an “unsubstantiated, reckless belief”
when the motion would have the effect of preventing BB&T from obtaining
discovery from the Banks. BB&T also argued that there was no legal or factual basis
for Myers’s request for attorney’s fees.
Over a week later, the court held a hearing, entered an order denying Myers’s
motion for protective order, and ordered Myers and his counsel to pay BB&T’s
reasonable attorney’s fees in the amount of $1,460.00 “as a discovery sanction under
[Texas] Rule [of Civil Procedure] 215.3.”2 Myers appeals.
2
At Myers’s request, the trial court entered findings of fact and conclusions of
law in support of its sanctions order.
5
The Trial Court Did Not Abuse Its Discretion by
Denying Myers’s Motion for Protective Order
Myers’s first point addresses both the trial court’s ruling on the motion for
protective order and the trial court’s imposition of sanctions. We will first address the
ruling on the motion for protective order.
In his first point, Myers contends that the trial court abused its discretion by
denying Myers’s motion for protective order. We disagree because Myers did not
meet his burden to obtain a protective order.
A. A trial court does not abuse its discretion by denying a motion for
protective order when a movant fails to show a “particular, specific, and
demonstrable injury” by facts sufficient to justify a protective order.
Under Texas Rule of Civil Procedure 192.6, a person affected by a discovery
request may move, within the time permitted for a response to the discovery request,
for an order “protecting that person from the discovery sought.” Tex. R. Civ. P.
192.6(a). A court may enter a protective order “[t]o protect the movant from undue
burden, unnecessary expenses, harassment, annoyance, or invasion of personal,
constitutional, or property rights.” Tex. R. Civ. P. 192.6(b); see also Tex. R. Civ. P.
192.4.
Appellate courts review a trial court’s ruling on a motion for protective order
under an abuse of discretion standard. Johnson v. Davis, 178 S.W.3d 230, 243 (Tex.
App.—Houston [14th Dist.] 2005, pet. denied). Although a trial court may exercise
some discretion in granting a protective order, such discretion is not without bounds.
6
In re Collins, 286 S.W.3d 911, 919 (Tex. 2009) (orig. proceeding). To obtain a
protective order, the movant must show a “particular, specific[,] and demonstrable
injury” by facts sufficient to justify a protective order. See id.; Tex. Voices for Reason &
Justice, Inc. v. City of Argyle, No. 02-16-00052-CV, 2017 WL 1173837, at *3 (Tex.
App.—Fort Worth Mar. 30, 2017, no pet.) (mem. op.) (citing Masinga v. Whittington,
792 S.W.2d 940, 940 (Tex. 1990) (orig. proceeding)); see also In re United Fire Lloyds, 578
S.W.3d 572, 579 (Tex. App.—Tyler 2019, orig. proceeding) (mem. op.); Brewer &
Pritchard, P.C. v. Johnson, 167 S.W.3d 460, 466 (Tex. App.—Houston [14th Dist.] 2005,
pet. denied). If the discovery sought is within the scope of Texas Rule of Civil
Procedure 192, a trial court may not grant a protective order limiting discovery unless
the party seeking such protection has met this burden. Brewer & Pritchard, 167 S.W.3d
at 466 (citing Masinga, 792 S.W.2d at 940–41); see also In re Topletz, No. 05-17-00315-
CV, 2017 WL 3634296, at *1 (Tex. App.—Dallas Aug. 24, 2017, orig. proceeding)
(mem. op.) (“A trial court abuses its discretion by limiting discovery in the absence of
some evidence supporting the request for a protective order.”).
A motion for protective order must do more than simply make conclusory
allegations. See Brewer & Pritchard, 167 S.W.3d at 466; see also Garcia v. Peeples, 734
S.W.2d 343, 345 (Tex. 1987) (orig. proceeding) (stating that the “requirements of a
particular, articulated[,] and demonstrable injury, as opposed to conclusory allegations,
apply to motions for protective orders”). The party must produce some evidence
supporting its request for a protective order. Brewer & Pritchard, 167 S.W.3d at 466.
7
B. Myers failed to show a “particular, specific, and demonstrable injury” by
facts sufficient to justify a protective order.
Myers’s contention that the trial court abused its discretion by denying his
motion for protective order fails for three reasons.
First, Myers completely failed to demonstrate a “particular, specific[,] and
demonstrable injury” by facts sufficient to justify a protective order. See Masinga, 792
S.W.2d at 940. In fact, Myers never addressed the burden he had to meet in the first
place in order to obtain a protective order. The only “injury” of any kind that he
referred to in his motion was his being “unable to review and object to the subpoenas
actually served, if any,” on the Banks—essentially accusing BB&T’s counsel of
engaging in subterfuge by serving subpoenas different from those it had attached to
its Ten-Day Notices. But the record is devoid of any evidence reflecting that BB&T
served subpoenas that differed in any way from the forms of subpoenas BB&T
attached to its Ten-Day Notices. Indeed, Myers attached no evidence to his motion
and did not offer any exhibits into evidence at the hearing.
Myers’s conclusory and speculative assertion that BB&T may or may not have
served subpoenas different from those it had attached to the Ten-Day Notices—but
he did not know one way or the other—was not enough to meet his burden to
establish that a protective order was necessary. See Tex. R. Civ. P. 192.6(b); Garcia,
734 S.W.2d at 345; In re Wal-Mart Stores, Inc., 545 S.W.3d 626, 636–37 (Tex. App.—
El Paso 2016, orig. proceeding [mand. denied]) (holding that trial court did not abuse
8
its discretion by denying motion for protective order where movant failed to meet its
burden of establishing that a protective order was necessary; movant broadly alleged
that “discovery . . . will likely involve confidential and/or proprietary information”
and did not support its motion with any evidence); In re K.L. & J. Ltd. P’ship, 336
S.W.3d 286, 293–94 (Tex. App.—San Antonio 2010, orig. proceeding) (holding that
trial court abused its discretion by granting motion for protective order where party
failed to make the required showing in the trial court). Myers admitted in both his
motion and at the hearing that he received BB&T’s Ten-Day Notices along with the
unsigned forms of subpoenas attached to those notices. His motion identified no
basis for objecting to the forms of subpoenas BB&T attached to the Ten-Day Notices
nor the requests it contained. Myers’s motion was not based on any evidence of
injury whatsoever and was instead based on speculation that BB&T had done
something improper—speculation that, as we note below, his counsel could have
resolved with a simple inquiry.
Second, even if BB&T was required to file with the trial court copies of the
subpoenas that it had actually served on the Banks, and even if BB&T was required to
notify Myers of such filing, as Myers contends, Myers failed to demonstrate how
BB&T’s failure, if any, to do either of these things justified the imposition of a
protective order.
In the motion, Myers’s counsel claimed that he was “unable to review and object
to the subpoenas actually served” on the Banks because “no notice of the filing of any
9
such subpoena has been served upon counsel for [Myers] as of the date hereof.”
[Emphasis added.] But a ready and obvious solution was available to remedy Myers’s
counsel’s professed inability: a phone call to the clerk, to opposing counsel, or to the
Banks. Taking this obvious step would have allowed discovery to proceed, obviated
the need for the motion for protective order, and allowed the trial court to better
devote its time to other matters on its docket.
Third, Myers argues that BB&T failed to comply with the Texas Rules of Civil
Procedure in multiple respects, but he did not raise these grounds for seeking a
protective order in his motion. For example, on appeal Myers argues that there is no
evidence (1) that BB&T filed the Ten-Day Notices with the trial court, (2) that BB&T
served the Ten-Day Notices on the Banks, or (3) that BB&T served the returns of
service or subpoenas on Myers’s counsel. And he argues that the returns of service
for Fidelity and Citibank on file with the trial court did not include the
document-production lists that BB&T served with the subpoenas.3 But although
Myers made the conclusory assertion in his motion that BB&T “failed to comply with
the applicable rules of discovery to third-parties [sic],” this statement did not
3
In his reply brief on appeal, Myers also complains that the compliance date in
the subpoenas supposedly fell on a legal holiday. “However, an issue raised for the
first time in a reply brief is ordinarily waived and need not be considered by this
court.” MBR & Assocs., Inc. v. Lile, No. 02-11-00431-CV, 2012 WL 4661665, at *4 n.7
(Tex. App.—Fort Worth Oct. 4, 2012, pet. denied) (mem. op.) (citing McAlester Fuel
Co. v. Smith Int’l, Inc., 257 S.W.3d 732, 737 (Tex. App.—Houston [1st Dist.] 2007, pet.
denied)); see also City of San Antonio v. Schautteet, 706 S.W.2d 103, 104 (Tex. 1986) (per
curiam) (issue raised for the first time in a reply brief filed on appeal should not be
considered by the court of appeals).
10
encompass any claimed procedural defect beyond his contention that he did not
receive notice that BB&T had filed the subpoenas with the trial court.4 Thus, we
cannot consider these grounds on appeal as a basis for reversing the trial court’s
order. See Tex. R. App. P. 33.1(a).
Even if we could consider Myers’s additional grounds for claiming that there
was “no evidence” of BB&T’s compliance with various rules, it would not change the
outcome. All of Myers’s arguments on appeal—including those he included in his
motion—misconstrue the burden of proof on a motion for protective order. It was
not BB&T’s burden to prove compliance with every procedural requirement involved
in seeking third-party discovery in order to avoid the entry of a protective order.
Rather, Myers had the burden to prove the existence of these “procedural infirmities,”
as he calls them, and to connect them with a “particular, specific, and demonstrable
injury” to justify a protective order. See Masinga, 792 S.W.2d at 940; Garcia, 734
S.W.2d at 345; Tex. Voices for Reason & Justice, 2017 WL 1173837, at *3; Brewer &
Pritchard, 167 S.W.3d at 466. He failed to do so.
4
Additionally, Myers did not raise most of these additional grounds for seeking
a protective order at all in the trial court. Although at the hearing before the trial
court, he raised his complaints about whether BB&T served the Ten-Day Notices on
the Banks, whether the compliance date fell on a legal holiday, and whether BB&T
served the returns of service or the served subpoenas on Myers’s counsel, the court
noted at one point that Myers had raised an argument that was “not a part of [his]
motion.” Myers may not raise new grounds for his motion for protective order for
the first time on appeal. See Tex. R. App. P. 33.1(a).
11
Accordingly, we conclude based on this record that the trial court did not abuse
its discretion by denying the motion for protective order. We overrule Myers’s first
point with respect to the ruling on the motion for protective order.
The Trial Court Did Not Abuse Its Discretion by
Awarding BB&T’s Attorney’s Fees as Sanctions for Discovery Abuse
In the remaining part of his first point, Myers contends that the trial court
abused its discretion by awarding BB&T its attorney’s fees as sanctions. And in his
second point, he contends that there was no evidence supporting the trial court’s
order imposing sanctions upon Myers.5 We conclude that the evidence supported the
trial court’s imposition of sanctions against Myers and his counsel for discovery abuse,
and thus the trial court did not abuse its discretion by awarding BB&T its attorney’s
fees.
A. A trial court does not abuse its discretion by imposing sanctions for
discovery abuse when there is some evidence of substantive and
probative character supporting the trial court’s decision.
Trial courts have broad discretion to impose discovery sanctions to ensure
compliance with the discovery rules, to deter other litigants from similar conduct, and
to punish violators. In re Estate of Preston, 346 S.W.3d 137, 156 (Tex. App.—Fort
5
The trial court’s order assessed sanctions against both Myers and his counsel.
On appeal, Myers’s brief does not specify whether he challenges the trial court’s
sanctioning of Myers, his counsel, or both. Instead, he focuses on the
appropriateness of sanctions generally based on a general contention that the trial
court erred by denying the motion for protective order. We will consider his brief as
fairly including a challenge to the sanctions as against both Myers and his counsel. See
Tex. R. App. P. 38.1(f).
12
Worth 2011, no pet.). We review a trial court’s discovery sanction for an abuse of
discretion. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004).
A trial court abuses its discretion if it acts in an arbitrary or unreasonable
manner, or if it acts without reference to any guiding rules and principles. Preston, 346
S.W.3d at 156. In reviewing sanctions orders, we are not bound by a trial court’s
findings of fact and conclusions of law. Id. Rather, we independently review the
entire record to determine whether the trial court abused its discretion. Id. (citing Am.
Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006) (per curiam)). A trial court
does not abuse its discretion if some evidence of substantive and probative character
exists to support the trial court’s decision. Hernandez v. Rockwater Energy Sols., Inc.,
No. 02-17-00302-CV, 2018 WL 4496149, at *2 (Tex. App.—Fort Worth Sept. 20,
2018, no pet.) (mem. op.) (citing Cire, 134 S.W.3d at 838, and Magnuson v. Mullen, 65
S.W.3d 815, 825–26 (Tex. App.—Fort Worth 2002, pet. denied)).
Texas Rule of Civil Procedure 215.3 allows the trial court to sanction a party if
it finds, after notice and hearing, that the party is abusing the discovery process in
seeking, making, or resisting discovery. Tex. R. Civ. P. 215.3; In re Garza, 544 S.W.3d
836, 840 (Tex. 2018) (orig. proceeding) (per curiam). Sanctions may be assessed
under Rule 215 with regard to post-judgment discovery. See Tex. R. Civ. P. 621a; In re
Smith, No. 02-07-327-CV, 2007 WL 3205185, at *1 (Tex. App.—Fort Worth Oct. 30,
2007, orig. proceeding) (mem. op.). Sanctions that a trial court may impose include
ordering the party, the party’s attorney, or both, to pay the reasonable expenses,
13
including attorney’s fees, caused by the offensive conduct. See Tex. R. Civ. P.
215.2(b)(8), 215.3.
B. There was some evidence of substantive and probative character
supporting the trial court’s imposition of sanctions for discovery abuse.
Myers’s brief spends little time specifically focusing on the appropriateness of
sanctions in this case, asserting two short arguments. We do not find either argument
persuasive and instead conclude, based on our review of the record, that there was
some evidence of substantive and probative character supporting the trial court’s
order.
First, after explaining all the reasons why he contends the trial court erred by
denying his motion for protective order—focusing on all the things he contends
BB&T did wrong or that he contends BB&T did not prove it did correctly—Myers
argues that his counsel “did nothing wrong, yet was penalized for grading BB&T’s
paper too harshly.”6 Essentially, Myers contends that because the trial court erred by
denying his motion for protective order, it also erred by imposing sanctions. We have
already determined that the trial court acted within its discretion when denying the
motion for protective order. Thus, Myers’s main argument for why the trial court
erred by imposing sanctions has no merit.
Myers briefed his first and second points together in a single section.
6
14
Second, Myers argues in a single sentence that there is nothing in the record to
reflect that he has engaged in a pattern and practice of discovery abuse.7 This
argument presumably relates to the trial court’s findings of fact and conclusions of
law wherein the trial court found that the “filing of th[e] motion [for protective order]
was not the first time that Myers and [his counsel] have acted improperly to disrupt
and delay this litigation.” The trial court also considered a “history of sanctionable
conduct” when awarding sanctions. We agree with Myers that the record before us
does not reflect a factual basis for the trial court’s findings regarding Myers’s prior
conduct. But the absence of evidence supporting these findings is not dispositive
because we are not bound by the trial court’s findings of fact and conclusions of law.
See Preston, 346 S.W.3d at 156.
The trial court found that “[i]n pursuing the motion, Myers and [his counsel]
abused the discovery process.” Although Myers is focused on proving what he
contends BB&T has done wrong to refute that finding, we are concerned with
whether the record supports the trial court’s imposition of sanctions against Myers for
discovery abuse, and we conclude that it does. The record evidences that Myers filed
a motion for protective order—knowing that the motion would prevent BB&T from
7
After this one sentence, Myers devotes an entire paragraph to focusing on
BB&T’s conduct, directing BB&T to “look in the mirror to see how a party may
abuse the discovery process” and outlining prior discovery conflicts between BB&T
and Myers. It is not necessary, however, for us to address whether BB&T has
engaged in a pattern of discovery abuse for the disposition of this appeal. See Tex. R.
App. P. 47.1.
15
obtaining documents from the Banks—while not taking any of the obvious steps to
determine whether the motion has a factual or legal basis.
Myers filed a motion for protective order based on “his own unsubstantiated,
reckless belief that the subpoena returns of service were not filed with the Court when
they clearly had been on file for several weeks,” as stated in BB&T’s response. In his
motion, Myers clung to the “procedural infirmity” of not receiving notice that BB&T
had filed the subpoenas with the trial court, and then he used the lack of notice to
justify his speculation that BB&T may have served subpoenas on the Banks different
from those it had attached to its Ten-Day Notices.
In the trial court, Myers explained that his fear about what discovery BB&T
served arose because BB&T’s Ten-Day Notices supposedly referred to “amended
subpoenas,” leaving him questioning whether BB&T intended to serve the forms of
the subpoenas it attached to those notices. Because he did not receive notice that
BB&T had filed the served subpoenas with the trial court, Myers argued that he could
not review the served subpoenas. Myers further argued that because he is a party, he
had no obligation to check with the trial court to determine if BB&T had filed the
subpoenas—claiming instead that BB&T had an obligation to copy him on such
filings.
We will assume without deciding that Myers is correct, as a general matter, that
he had no obligation to check whether BB&T had filed documents with the trial court
in the course of the underlying litigation because Myers is a party. Nonetheless, this
16
does not mean that Myers may file a motion for protective order based on his
contention that he does not know whether BB&T had filed subpoenas (and,
consequently, does not know what discovery BB&T actually served on the Banks)
without at least demonstrating that he made a reasonable effort to find out whether
BB&T had filed the subpoenas.
Like on appeal, in the trial court Myers was so focused on attempting to point
out BB&T’s purported errors that he seemingly lost sight of his own obligations to
perform a reasonable inquiry into the legal and factual basis for a motion before filing
the motion and to not abuse the discovery process. See Tex. R. Civ. P. 13, 215.3; Tex.
Civ. Prac. & Rem. Code Ann. § 10.001. The record reflects that Myers did absolutely
nothing to determine what discovery BB&T actually served on the Banks or to
determine whether BB&T had filed any subpoenas with the court before filing the
motion. He did not call the court. He did not check the online docket. He did not
contact BB&T’s counsel. Myers stated no objections to the substance of the
discovery directed to the Banks in his motion for protective order. Myers appeared to
bury his head in the sand so that he could profess ignorance of what discovery BB&T
actually served on the Banks, and then he relied on that self-inflicted ignorance to file
the motion and delay efforts to collect on the underlying judgment. It was within the
trial court’s discretion to determine that Myers’s purposes for filing the motion were
improper and were not to protect Myers from any “particular, specific[,] and
17
demonstrable injury,” as they were supposed to be. See Masinga, 792 S.W.2d at 940; see
also Tex. R. Civ. P. 192.6(b).
Myers’s filing the motion for protective order without taking any steps to
determine whether the motion had a factual or legal basis also impacted innocent
bystanders in the process: the Banks. Myers filed the motion at the eleventh hour. It
is a reasonable concern that because Myers filed the motion on the last day before
compliance with the subpoenas was due, the Banks were likely in the unnecessary
process of preparing to produce documents when (unbeknownst to them) Myers filed
the motion.
Myers was entitled to the full time period set forth in the Texas Rules of Civil
Procedure before filing a motion for protective order, see Tex. R. Civ. P. 192.6(a), and
nothing we state in this opinion should be construed as suggesting the contrary. But
at the hearing, Myers’s counsel stated that he “decided [he] would just wait and get the
actual subpoena to see if it’s effectually served . . . and just seeing if it’s going to
comply with the law.” But then “[n]othing is sent to [him]. . . . So [he] filed a motion
for protective order on the last business day.” Thus, Myers knew early on that he
intended to file the motion for protective order unless BB&T notified him that it had
filed copies of the subpoenas with the trial court—then he waited as long as possible
before filing the motion while doing nothing to determine if the motion needed to be
filed at all. And when he filed the motion, Myers based the motion on his claimed
ignorance about what subpoenas BB&T had served on the Banks. The point is this:
18
Myers intentionally took the entire time available to him under the law to file the
motion for protective order. After waiting weeks to file the motion, Myers filed the
motion based on his claimed inability to answer a question. He easily could have
answered that question at any time during those weeks by making a simple phone call.
It was reasonable for the trial court to consider these facts when deciding whether to
impose sanctions for discovery abuse.
Based on our review of the record, we conclude that evidence of substantive
and probative character exists to support the trial court’s decision to impose sanctions
upon Myers and his counsel pursuant to Texas Rule of Civil Procedure 215.3. See
Tex. R. Civ. P. 215.2(b)(8), 215.3. Myers filed a motion for protective order without
performing a reasonable inquiry into the legal and factual basis of the motion—and
instead chose to remain ignorant of whether the motion had any such basis—
preventing BB&T from obtaining otherwise discoverable records from the Banks. See
Hernandez, 2018 WL 4496149, at *2. Accordingly, the trial court did not abuse its
discretion by imposing sanctions and ordering Myers and his counsel to pay BB&T’s
attorney’s fees as a discovery sanction. 8 We overrule the remainder of Myers’s first
point and the entirety of his second point.
8
Myers raises no argument challenging whether the order sanctioning Myers
and his counsel is just—that is, whether it has a direct relationship between the
offensive conduct and whether the sanction imposed is no more severe than
necessary to satisfy its legitimate purpose. See Nath v. Tex. Children’s Hosp., 446 S.W.3d
355, 363 (Tex. 2014); Cire, 134 S.W.3d at 839; TransAmerican Nat. Gas Corp. v. Powell,
811 S.W.2d 913, 917–19 (Tex. 1991) (orig. proceeding); Preston, 346 S.W.3d at 156–57.
19
Legally Sufficient Evidence Supports BB&T’s Attorney’s Fees Award
In his third point, Myers argues that there was no evidence supporting BB&T’s
award of its attorney’s fees.9 As noted above, Rule 215.2(b)(8) authorizes the trial
court to order a party or a party’s attorney to pay reasonable expenses, including
attorney’s fees, caused by discovery abuse. See Tex. R. Civ. P. 215.2(b)(8), 215.3.
Myers argues that at the hearing on the motion, BB&T offered no “testimony,
documents, time or billing records supporting its claim for reasonable and necessary
attorneys’ fees as sanctions against Myers.” Therefore, he argues, “there was no
evidence to support the trial court’s Order and findings and conclusions in awarding
BB&T[] its attorney’s fees.” The record shows to the contrary.
To the extent Myers’s brief could be construed as fairly including any such issue, we
conclude that the trial court’s order requiring Myers and his counsel to pay BB&T’s
attorney’s fees incurred in connection with responding to the motion has a direct
relationship with the filing and pursuing of the frivolous motion for protective order
and was no more severe than necessary to satisfy its legitimate purposes.
Additionally, BB&T requested attorney’s fees under Chapter 10 of the Texas
Civil Practice and Remedies Code as well as Texas Rule of Civil Procedure 215.3. The
trial court’s order imposes sanctions under only Rule 215.3 and not Chapter 10 of the
Texas Civil Practice and Remedies Code. But in its findings of fact and conclusions
of law, the trial court concluded that the filing of the motion warranted the imposition
of sanctions against Myers under both Chapter 10 of the Texas Civil Practice and
Remedies Code and Rule 215.3. Assuming that the trial court imposed sanctions
under both grounds, we need not consider whether the trial court erred by imposing
sanctions under Chapter 10 of the Texas Civil Practice and Remedies Code because
we conclude that the trial court did not abuse its discretion by imposing sanctions
under Rule 215.3, and this is dispositive. See Tex. R. App. P. 47.1.
9
Myers does not contend that the amount awarded was excessive or that the
trial court failed to consider lesser sanctions.
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The record reflects that BB&T’s attorney, Audra Mayberry, submitted an
affidavit (the Mayberry Affidavit) in support of BB&T’s attorney’s fees request.
Mayberry explained the basis for her knowledge of the customary attorney’s fees
charged in similar matters; her involvement in the litigation; the hourly rate her law
firm charged for her services ($365.00); and that by the time she executed the
affidavit, she had spent four hours responding to the motion for protective order,
incurring fees of $1,460.00. She stated that she would incur additional time to attend
the hearing on the motion. Mayberry further explained the legal services she provided
to BB&T in connection with responding to the motion; that the amount of time she
spent performing those services was reasonable; that her hourly rate was a usual and
customary rate; and that $1,460.00 in attorney’s fees was a reasonable and necessary
amount. The hours and fees Mayberry set forth in her affidavit were based on her
review of contemporaneously kept time records.
In short, the Mayberry Affidavit described the particular services performed,
who performed the services, when the services were performed, the reasonable
amount of time required to perform the services, and the reasonable hourly rate for
the performance of such services. See Rohrmoos Venture v. UTSW DVA Healthcare,
LLP, 578 S.W.3d 469, 498 (Tex. 2019).
On appeal, Myers makes no reference to, and thus raises no challenge to, the
Mayberry Affidavit. In response to Myers’s third point, BB&T points out the
existence of the Mayberry Affidavit and explains how it provided legally sufficient
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evidence supporting BB&T’s attorney’s fees. Although Myers filed a reply brief, he
does not use that brief as an opportunity to explain why the Mayberry Affidavit
constituted no evidence to support the amount of attorney’s fees the trial court
awarded. And we can discern no such reason.
The trial court properly considered the Mayberry Affidavit when ordering
Myers to pay BB&T the amount of $1,460.00 in attorney’s fees as a discovery
sanction. See Day v. Federation of State Med. Bds. of the U.S., Inc., 579 S.W.3d 810, 825
(Tex. App.—San Antonio 2019, pet. denied) (citing Brownhawk, L.P. v. Monterrey
Homes, Inc., 327 S.W.3d 342, 348–49 (Tex. App.—El Paso 2010, no pet.)). We
conclude that the amount awarded by the trial court is supported by the record, and
we discern no abuse of discretion in the court’s award. We overrule Myers’s third
point.
Conclusion
Having overruled Myers’s three points on appeal, we affirm the trial court’s
order.
/s/ Dabney Bassel
Dabney Bassel
Justice
Delivered: April 2, 2020
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