Frazier Neal v. Richard Kuniansky ( 2006 )

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Opinion issued June 1, 2006



  In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00368-CV

FRAZIER NEAL, Appellant

V.

RICHARD BEN KUNIANSKY, Appellee

On Appeal from the 312th District Court

Harris County, Texas

Trial Court Cause No. 2002-10112

MEMORANDUM OPINION

            Frazier Neal, appellant, appeals from an order granting Richard Kuniansky, appellee, injunctive relief and attorney’s fees. In three issues on appeal, Neal contends that the trial court erred by: (1) issuing discovery sanctions that struck her pleadings; (2) awarding Kuniansky injunctive relief and attorney’s fees; and (3) failing to provide notice of trial.

          We affirm.

BACKGROUND

          Neal and Kuniansky were married in 1984. On August 11, 2003, they entered an agreed order of divorce. The order appointed Neal and Kuniansky joint managing conservators of their two children, Sarah and Hallie. Around the time of the divorce, Neal and the children relocated to South Carolina.

          On January 27, 2004, Kuniansky filed a petition to modify in suit affecting the parent-child relationship (SAPCR), suit for declaratory judgment, and request for permanent injunctions. Kuniansky’s petition sought: (1) modification of a provision in the divorce decree stating that Sarah and Hallie could not travel on flights requiring a change of planes when they flew from South Carolina to Houston to visit their father; (2) injunctive relief to prevent Neal from making disparaging statements about Kuniansky or from contacting him for any reason other than a medical emergency in the case of Sarah or Hallie; (3) a declaratory judgment finding that, contrary to statements allegedly made by Neal, Kuniansky had committed no criminal offenses against Sarah; and (4) attorney’s fees. Neal filed an answer and a cross-petition on March 3, 2004, and the parties began discovery. Prior to trial, and sometime during the summer of 2004, the trial court struck Neal’s pleadings as a sanction for her failure to comply with the court’s discovery orders. Because of the incomplete record before us, it is impossible to say what discovery orders Neal failed to comply with; nor is it possible to know the extent of her non-compliance.

          On September 1, 2004, following an August 30 hearing, the trial court entered a default judgment against Neal, granting Kuniansky’s requested injunctive and declaratory relief and awarding him $8,983.26 in attorney fees. Although the record is incomplete, and thus unclear, it appears that Neal filed a motion for new trial sometime in October, 2004. Kuniansky appears not to have opposed this motion, and the trial court set the matter for hearing on November 8, 2004. At the November 8 hearing, the trial court granted Neal’s motion for a new trial. A bench trial was held that same day to consider the relief requested by Kuniansky in his SAPCR and suits for injunctive and declaratory relief. As her pleadings had been struck, Neal was not allowed to present any witnesses during the trial. At the conclusion of the trial, the court permanently enjoined Neal from: (1) contacting Kuniansky by telephone or e-mail except in the case of a medical emergency pertaining to Sarah or Hallie; (2) making disparaging remarks about Kuniansky; (3) contacting any of Kuniansky’s friends, family members, or clients; and (4) making any statements suggesting that Kuniansky had committed any criminal offenses involving his daughters. The court also awarded Kuniansky $10,628 in attorney fees, $1,050 of which included previously ordered and yet unpaid fees. Neal timely filed her notice of appeal.

DISCUSSION

          Discovery Sanctions

          In her first issue on appeal, Neal contends that the trial court erred in striking her pleadings as a sanction for her failure to comply with the court’s discovery orders.

          We review a trial court’s ruling on a motion for sanctions under an abuse of discretion standard. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004); Bodnow Corp. v. City of Hondo, 721 S.W.2d 839, 840 (Tex. 1986). A trial court abuses its discretion if it acts “without reference to any guiding rules and principles” by acting arbitrarily or unreasonably in light of all the circumstances of the case. Downer v. Aquamarine Operations, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985); Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 443 (Tex. 1984). We cannot substitute our judgment for that of the trial court’s. See Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41 (Tex. 1989). However, the sanctions imposed by the trial court must be just. TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991)

          TransAmerican established a two-part test to determine whether a particular sanction was just. Id. at 917. First, there must be a direct relationship between the imposed sanction and the offensive conduct. Id. “This means that a just sanction must be directed against the abuse and toward remedying the prejudice caused the innocent party.” Id. Second, a just sanction is not excessive; it is only as severe as is necessary to satisfy legitimate purposes. Id. There are three legitimate purposes for discovery sanctions: (1) to secure compliance with the rules of discovery; (2) to deter other litigants from similar abuse; and (3) to punish abusers. Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex. 1992). Because a sanction should not be more severe than necessary, the court must consider less severe sanctions first. TransAmerican, 811 S.W.2d at 917. When a trial court “precludes presentation on the merits of the case,” the offending party must have acted in “flagrant bad faith.” Id. at 918.

          Here, Neal contends that her only discovery transgression was a failure to verify her responses to Kuniansky’s interrogatories. Hence, Neal argues that the trial court’s decision to strike her pleadings was excessive and not related to her offensive conduct. Id. at 917. We are unable to evaluate Neal’s claim, however, because she has failed to bring a sufficient record before this court for the purposes of review. In fact, the record Neal submitted for review contains virtually no information relating to the discovery sanctions. We note, in particular, that the record does allude to an August 2, 2004 hearing held to discuss possible discovery sanctions. No record of this hearing, nor any official order that it may have produced, has been submitted for review. Neal had the burden of furnishing this court with a record that supports her issues on appeal. See Appelton v. Appleton, 76 S.W.3d 78, 87 (Tex. App.—Houston [14th Dist.] 2002, no pet.); see also Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990); Budd v. Gay, 846 S.W.2d 521, 523 (Tex. App.—Houston [14th Dist.] 1993, no writ) (holding that, without a sufficient record, the reviewing court cannot determine whether the trial court committed error or whether error was properly preserved). Because of her failure to do so, we conclude that Neal has waived any error regarding discovery sanctions. See Tex. R. App. P. 33.1; Cruikshank v. Consumer Direct Mortgage Inc., 138 S.W.3d 497, 499 (Tex. App.—Houston [14th Dist.] 2004, pet. denied).

          We overrule Neal’s first issue on appeal.

          Award of Injunctive Relief and Attorney’s Fees

          In her second issue on appeal, Neal contends that the trial court erred in awarding Kuniansky injunctive relief and attorney’s fees. Upon careful review of her brief, however, we are unable to find any argument or authorities in support of her contentions. Because Neal presents no authority and develops no argument in support of her second issue on appeal, we decline to consider it. See Tex.R.App. P. 38.1(h) (stating appellant’s brief is to contain clear and concise argument with appropriate citations to authorities); Emery v. Rollins, 880 S.W.2d 237, 238 (Tex. App.—Houston [14th Dist.] 1994, writ denied) (stating points of error must be supported by argument and authorities, and if not so supported, are waived); J.B. Custom Design and Bldg. v. Clawson, 794 S.W.2d 38, 41 (Tex. App.—Houston [1st Dist.] 1990, no writ).

          We overrule Neal’s second issue on appeal.

          Notice

          In her third issue on appeal, Neal contends that the trial court erred by failing to provide her with notice of trial after granting her motion for new trial. Although Neal presents some argument in support of her third issue, she cites no authority. A point of error is waived if it contains argument without citation to authority. TXO Prod. Co. v. M.D. Mark, Inc., 999 S.W.2d 137, 143 (Tex. App.—Houston [14th Dist.] 1999, pet. denied). We nevertheless note that Neal fails to explain how she was harmed by any lack of notice. The default judgment entered on September 1, 2004 was replaced by a judgment entered following the November 8 bench trial, a trial that resulted from the granting of Neal’s motion for new trial. On November 8, when the trial court granted her motion for new trial, Neal’s counsel indicated that his client was ready to precede to trial that very day. In view of this, it is impossible to say that Neal (1) did not receive notice or (2) was in any way harmed by a lack of notice. Such a conclusion is reinforced by the fact that Neal presents no argument on appeal regarding how she was harmed by any real or perceived lack of notice.

          We overrule Neal’s third issue on appeal.

CONCLUSION

          We affirm the judgment of the trial court.

                                                             Evelyn V. Keyes

                                                             Justice

Panel consists of Justices Nuchia, Keyes, and Hanks.