Robert Primo v. Scott Rothenberg

Memorandum Opinion of April 28, 2015, Withdrawn; Affirmed in Part and
Reversed and Remanded in Part and Substitute Memorandum Opinion filed June
18, 2015.
In The
Fourteenth Court of Appeals
NO. 14-13-00794-CV
NO. 14-13-00997-CV
ROBERT PRIMO, Appellant
V.
SCOTT ROTHENBERG, Appellee
On Appeal from the 133rd District Court
Harris County, Texas
Trial Court Cause Nos. 2012-68391-A & 2012-68391
SUBSTITUTE MEMORANDUM OPINION
We withdraw our memorandum opinion issued April 28, 2015, and we issue this
substitute memorandum opinion in its place.
Robert Primo challenges orders arising from a fee dispute with his former
attorney, Scott Rothenberg. These orders imposed death penalty sanctions against
Primo and granted summary judgment in favor of Rothenberg. Collectively, these orders
dispose of all issues and claims raised in the trial court.
We affirm the trial court’s grant of a no-evidence summary judgment in
Rothenberg’s favor with respect to Primo’s affirmative defenses and counterclaims. We
reverse the trial court’s imposition of death penalty sanctions; we also reverse the trial
court’s grant of a traditional summary judgment in favor of Rothenberg with respect to
his attorney’s fees, which was predicated on the erroneous death penalty sanctions
against Primo.
OVERVIEW
Rothenberg sued Primo to collect $57,999.63 in attorney’s fees alleged to be due
for representing Primo in an underlying lawsuit. Primo pleaded a general denial along
with several affirmative defenses and counterclaims. A series of complicated
procedural steps unfolded as the dispute progressed.
Rothenberg filed a no-evidence motion for summary judgment addressing
Primo’s affirmative defenses and counterclaims, which the trial court granted in an
order signed on May 13, 2013. Rothenberg also filed a motion for death penalty
sanctions against Primo, which the trial court granted in a separate order signed on May
22, 2013.
The trial court’s sanctions order struck Primo’s pleadings (among other things)
and ordered Primo to pay Rothenberg $57,999.63 as “past due sums” for attorney’s fees
under the “agreement in question” between Primo and Rothenberg relating to the
underlying litigation.
The trial court signed another order on June 10, 2013, in which it (1) severed
“Rothenberg’s claims to recover $57,999.63 in attorney’s fees” from the original trial
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court cause number 2012-68391; (2) directed the severed cause to be filed under cause
number 2012-68391-A; and (3) directed that “the only live claims remaining for
resolution [in the original trial court cause number] . . . are the amount of attorney’s
fees” due to Rothenberg from Primo for litigating Rothenberg’s entitlement to the initial
$57,999.63 fee amount.
Primo appealed the orders filed under new cause number 2012-68391-A, and
Primo’s appeal was assigned cause number 14-13-00794-CV in this court. This
appellate cause number encompasses issues related to (1) the no-evidence summary
judgment in Rothenberg’s favor with respect to Primo’s counterclaims and affirmative
defenses; and (2) the death penalty sanctions against Primo.
Following severance, Rothenberg filed a traditional summary judgment motion in
trial court cause number 2012-68391 asserting that he incurred $148,100 in attorney’s
fees to prosecute his claim for the initial $57,999.63 fee amount. The trial court granted
Rothenberg’s traditional summary judgment motion under the original trial court cause
number in a “Final Judgment” signed on November 5, 2013. Primo appealed from the
trial court’s traditional summary judgment order, and the appeal was assigned cause
number 14-13-00997-CV in this court.
Considering the procedural posture of this dispute and the related issues before
us, we consolidate Primo’s appeals filed under cause numbers 14-13-00794-CV and 14-
13-00997-CV.
In addressing a multitude of arguments raised in this consolidated matter, we first
determine whether the trial court’s no-evidence summary judgment in Rothenberg’s
favor on Primo’s affirmative defenses and counterclaims can stand. Second, we
determine whether the trial court acted within its discretion in granting death penalty
sanctions against Primo. Third, we determine whether the trial court properly granted
traditional summary judgment in favor of Rothenberg on his claim to recover additional
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attorney’s fees incurred in litigating the initial $57,999.63 fee dispute.
The various legal disputes involving Primo have many arms and legs.
Voluminous briefing is on file. The dispute at issue in cause numbers 14-13-00794-CV
and 14-13-00997-CV is involved and contentious enough without re-fighting battles
fought in yet other appellate matters. Accordingly, we decline the invitation to refer to,
rely on, or take judicial notice of records in cause numbers 14-13-00492-CV, 14-13-
00495-CV, 14-13-00532-CV, 14-14-00417-CV, and 14-14-00458-CV. We will rely on
the appellate records and filings in cause numbers 14-13-00794-CV and 14-13-00997-
CV.
FACTUAL AND PROCEDURAL BACKGROUND
We begin with a detailed description of the procedural history leading to the
orders Primo challenges on appeal.
I. Rothenberg Represents Primo
Travelers Casualty and Surety Company sued Primo in July 2009 alleging causes
of action for fraud, fraud in the inducement, conversion, unjust enrichment, indemnity
for payment on bond, and theft of property. In turn, Primo sued Briar Green
Condominium Association to recover under an indemnity agreement in connection with
the claims asserted against him by Travelers; Primo sought to obtain from Briar Green
the attorney’s fees and expenses he incurred in the Travelers suit, along with attorney’s
fees and expenses incurred in prosecuting the indemnity suit.
Porter Hedges LLP attorneys John Irvine and Blake Runions initially represented
Primo. They withdrew in April 2012. Rothenberg began representing Primo in the
indemnity suit on May 22, 2012, after Primo signed a written representation agreement
with Rothenberg.
On October 9, 2012, Great American Insurance offered to settle Primo’s
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indemnity claim against Briar Green by paying Primo $365,000 in exchange for a full
release. Rothenberg advised Primo to accept the settlement offer because there
“exist[ed] a substantially less than 1% chance” that Primo would “receive a result as
favorable or more favorable than the $365,000 settlement” after a trial. Primo rejected
Rothenberg’s recommendation and the settlement offer.
Before proceeding to trial in the indemnity case in October 2012, Rothenberg
demanded that Primo pay (1) $30,221.30 to Rothenberg pursuant to the representation
agreement for “past professional legal services rendered;” and (2) another $25,000 for
“replenishment of the initial retainer to cover professional legal services and expenses
of litigation incurred.” When Primo did not pay Rothenberg as requested by October
28, 2012, Rothenberg required Primo to sign an agreement “on the morning of October
29, 2012, immediately prior to jury selection” in the indemnity trial. Under the October
29 agreement, Primo “unconditionally promis[ed] to pay the sum of $50,000 to
[Rothenberg] at or before 5:00 p.m. on Friday, November 2, 2012.”
The indemnity case proceeded to jury trial on October 29, 2012. The jury
returned a verdict in favor of Primo and awarded him $100,194.89 in damages and
attorney’s fees. It is undisputed that Primo did not pay the total amount of fees to which
Rothenberg contended he was entitled.
II. Rothenberg Sues Primo
After Primo failed to pay Rothenberg in full for representing him in the Briar
Green indemnity litigation, Rothenberg sued Primo on November 16, 2012, in trial court
cause number 2012-68391. Rothenberg’s original petition alleged claims for breach of
representation agreement, breach of written agreement, and suit on sworn account; he
sought $57,999.63 in fees for his representation of Primo in the indemnity suit. Primo
filed his original answer and counterclaim for “legal malpractice and related torts” on
December 17, 2012.
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A. Discovery
Rothenberg filed his first set of interrogatories, first request for production, and
requests for disclosure with his original petition.
On January 14, 2013, Primo filed (1) responses to Rothenberg’s requests for
disclosure, and stated that he would supplement his responses when additional
information became reasonably available; (2) responses to Rothenberg’s first set of
interrogatories, including statements that he would supplement his responses when
additional information became reasonably available; and (3) objections to requests for
production. The objections asserted that Rothenberg sought information or documents
that Rothenberg was “already in possession of or has equal access to,” or that the
requested materials were not “relevant to the subject matter of the pending action,
material or reasonably calculated to lead to the discovery of admissible evidence.”
Primo also stated that he would supplement his responses when additional information
became available.
Rothenberg filed a motion to compel under Texas Rule of Civil Procedure 215.1
on January 16, 2013. Rothenberg stated that Primo’s responses and objections were due
by 5:00 p.m. on January 14, 2013. Rothenberg argued that, although Primo’s responses
and answers were “served by fax transmission that began at 4:58:31 p.m., on January
14, 2013,” they nonetheless were “served late and untimely because the fax
transmission was received in Rothenberg’s office” at 5:11 p.m. on January 14, 2013.
Rothenberg argued that Primo had “waived his objections to the discovery that was
propounded by Rothenberg.”
Rothenberg also argued that Primo failed to make an “acceptable objection” when
Primo objected that “this request seeks information or documents that [Rothenberg] is
already in possession of or has equal access to.” Rothenberg argued, “This is a valid
reason to compel production of documents even if a litigant contends that the documents
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are in the possession, custody or control of the requesting party. Additionally, the
requesting party is entitled to understand what documents the producing party believes
are responsive to each of the requests.” Rothenberg also argued that Primo’s promise to
supplement “when additional information becomes reasonably available” was not a
valid excuse for incomplete responses to each request for disclosure.
Rothenberg further contended that Primo (1) failed to object and fully respond to
Interrogatories Nos. 1 through 6; (2) improperly responded to each of Rothenberg’s
interrogatories with the statement that “Defendant will supplement this response when
additional information becomes reasonably available;” (3) “improperly answered ‘none
at this time’ with respect to recorded statements of Rothenberg” in response to
Interrogatory No. 12; and (4) failed to “identify what licensed attorney, if any, has
opined that the conduct set forth in Primo’s interrogatory answers constitutes a breach
of the common law, statutory, regulatory, or administrative duty alleged to have been
violated” in response to Interrogatory No. 13.
Rothenberg filed his first amended petition on January 17, 2013, in which he
asserted claims for breach of the representation agreement, breach of the written
agreement, fraud, and suit on sworn account; he sought $57,999.63 in fees for
representing Primo in the indemnity suit, along with attorney’s fees “incurred in any
legal proceeding brought or commenced to enforce” the representation agreement and
the written agreement. On the same day, Rothenberg served on Primo his second set of
interrogatories and second requests for production by certified mail, return receipt
requested.1 The discovery requests were returned to Rothenberg; the returned envelope
stated “return to sender,” “unclaimed,” “unable to forward.”
1
Rothenberg requested that Primo produce (1) all “documents referenced in [his] responses” to
Rothenberg’s second set of interrogatories; and (2) the “complete reporter’s record including exhibits,
testimony, objection and all phases of trial and pretrial proceedings that were conducted in October of
2012.”
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On January 24, 2013, Primo filed a response to Rothenberg’s January 16, 2013
motion to compel. Primo argued that (1) his discovery responses were timely; (2)
Rothenberg was not prejudiced by Primo’s objection to production of documents
already in Rothenberg’s possession; (3) any request for attorney’s fees contracts was
outside the scope of discovery; (4) his answers were complete, based on currently
available information, and complied with Texas Rule of Civil Procedure 197.1; (5)
Rothenberg impermissibly served a total of 73 interrogatories; (6) Rothenberg’s
discovery requests were a pretext for seeking sanctions against Primo; (7) Rothenberg
failed to file a certificate of conference prior to filing his motion to compel; and (8)
Rothenberg’s motion to compel was baseless.
The trial court signed an order on January 29, 2013, in which it (1) granted
Rothenberg’s motion to compel “in its entirety;” (2) overruled Primo’s objections to
Rothenberg’s first set of interrogatories (numbers 1 through 13), and to Rothenberg’s
first request for production (numbers 1 through 9); and (3) ordered Primo to provide
“Rothenberg with full, complete, truthful and specific answers to each part and subpart
of Rothenberg’s First Set of Interrogatories, Nos. 1-13, and Rothenberg’s First Request
for Production, Nos. 1-9, such that . . . these amended responses are physically
received” in Rothenberg’s law office by 3:00 p.m. on February 15, 2013.
Primo faxed his first supplemental responses to Rothenberg’s first request for
production on February 15, 2013; Primo’s response to the nine document requests was:
“See uploaded file at http://www.legalmal.net/Rothenberg/2012-68391.zip and
http://www.legalmal.net/Rothenberg/PrintBoxes.zip Defendant will supplement this
response when additional information becomes reasonably available.” Primo also faxed
his first supplemental responses to Rothenberg’s first set of interrogatories.
At a hearing on March 11, 2013, Primo asserted that Rothenberg did not serve a
second request for production asking for the trial record of the Briar Green indemnity
8
Amended Answer and Counterclaim;” (2) struck Primo’s affidavit as verification filed
with Primo’s “First Amended Answer and Counterclaim;” (3) struck Primo’s “Original
Answer and Counterclaim” and accompanying affidavit verifying the pleading; (4)
struck the affidavit and expert witness report of Leonard Meyer; (5) ordered “Primo not
to file any further answer, amended answer, supplemental answer, counterclaim,
amended counterclaim, supplemental counterclaim, third-party petition, or any other
pleading in the above-captioned and numbered lawsuit;” (6) ordered that Primo take
nothing on all claims and counterclaims he asserted or could have asserted; (7) ordered
that all of Primo’s “affirmative defenses and verified pleadings are without merit and
overruled in their entirety;” (8) ordered that Rothenberg recover from Primo
$57,999.63, “representing past due sums under the agreement [between Rothenberg and
Primo] in question plus contractually agreed interest” and court costs; and (9) ordered
that “the only matters remaining for decision in this case are the amount of attorney’s
fees to be awarded to Scott Rothenberg for handling the prosecution and defense of all
claims, demands, and causes of action in the above-captioned and numbered lawsuit, as
well as the amount of exemplary damages to be awarded to Scott Rothenberg from
Robert Primo as a result of Robert Primo’s fraud in entering into the October 29, 2012
written agreement without any intent to comply therewith.”
E. Severance
Rothenberg filed a motion to sever, and the trial court signed a severance order on
June 10, 2013. The trial court ordered that (1) Rothenberg’s “claims to recover
$57,999.63 in attorney’s fees due and owing” from Primo were “severed from this
action, with such severed claims and causes of action to be filed under Cause No. 2012-
68391-A;” (2) “the only live claims remaining for resolution in the above-captioned and
numbered lawsuit (2012-68391) are the amount of attorney’s fees to Scott Rothenberg
from Robert Primo for handling the prosecution and defense of all claims, demands, and
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causes of action in the above-captioned and numbered lawsuits (2012-68391 and 2012-
68391-A), as well as the amount of exemplary damages to Scott Rothenberg from
Robert Primo as a result of Robert Primo’s fraud in entering into the October 29, 2012
written agreement without any intent to comply therewith;” (3) various pleadings and
documents related to the severed claims were to be filed under cause number 2012-
68391-A; (4) the “Order and Interlocutory Judgment” of May 22, 2013, was a final
judgment for purposes of appeal; and (5) Primo would pay any costs “associated with
the severance in question” upon entry of a final judgment in cause number 2012-68391.
Following severance, Primo timely filed a motion for new trial under the severed
cause number 2012-68391-A on July 10, 2013. See Tex. R. Civ. P. 329b. Primo argued
that the trial court abused its discretion by imposing death penalty sanctions without
first considering the availability of less stringent discovery sanctions, and whether lesser
sanctions would have promoted compliance with discovery. The trial court signed an
order denying Primo’s motion for new trial on August 19, 2013.
F. Additional Proceedings
Rothenberg filed a notice of partial non-suit in cause number 2012-68391 on July
9, 2013, in which he stated that he “hereby non-suits without prejudice his claim for
‘exemplary damages to be awarded to Scott Rothenberg from Robert Primo as a result
of Robert Primo’s fraud in entering into the October 29, 2012 written agreement without
any intent to comply therewith.’ Remaining pending in the above-captioned and
numbered matter is the amount of trial court and conditional appellate attorney’s fees to
be awarded to Scott Rothenberg for handling the prosecution and defense of all claims,
demands, and causes of action in the above-captioned and numbered lawsuit.” The trial
court signed Rothenberg’s notice of partial non-suit on July 19, 2013.
On August 27, 2013, Rothenberg filed a verified motion for entry of additional
findings of fact and conclusions of law “in support of the [c]ourt’s May 22, 2013 order
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Rothenberg filed a reply to Primo’s response to Rothenberg’s no-evidence
summary judgment on May 10, 2013. Rothenberg contended in his reply that (1)
Primo’s complaint that there was inadequate time for discovery was groundless because
Primo did not ask for a continuance and had five months to take oral depositions of
potential witnesses; (2) Primo’s complaint regarding the form of Rothenberg’s no-
evidence summary judgment motion was meritless because Rothenberg pointed out
elements in each cause of action or affirmative defense for which there was no evidence;
(3) Primo’s summary judgment response was legally improper because Primo filed over
500 pages of summary judgment evidence in support of his response but did not “point
out which part of his voluminous summary judgment exhibits provide evidence in
response to which of the 72 no-evidence points asserted;” (4) Primo’s expert evidence
was conclusory and inadmissible because expert Meyer’s opinions were not relevant,
were unreliable, lacked sufficient foundation and evidentiary support, and failed to
disclose facts and materials forming the foundation of the opinions; and (5) exhibits two
to 11 attached to Primo’s no-evidence summary judgment response constituted hearsay.
In his reply, Rothenberg objected to the admission of Meyer’s expert opinions as
well as Primo’s affidavit opinions on grounds that they were conclusory, irrelevant,
unreliable, and lacked foundational and evidentiary support. Rothenberg also objected
to exhibits two through 11 on the ground that they were based on hearsay and were not
subject to a hearsay exception.
Primo filed a sur-response to Rothenberg’s no-evidence summary judgment
motion on May 13, 2013. In his sur-response, Primo withdrew his objection to the
timing of Rothenberg’s no-evidence summary judgment. Primo argued that (1)
Rothenberg’s motion was legally insufficient as a matter of law because it did not
specify elements of Primo’s causes of action that were not supported by evidence; (2)
Rothenberg made “conclusory boilerplate objections” to Meyer’s expert report; (3)
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The Court finds that Robert Primo has not learned a lesson regarding
acceptable and unacceptable conduct in pretrial discovery from the
imposition of death penalty sanctions against him in this case. In so
finding, the Court considers all of Robert Primo’s abuses of the discovery
process pertaining to seeking and resisting pretrial discovery in this
lawsuit, as reflected in Scott Rothenberg’s motion for the imposition of
death penalty sanctions, and otherwise in the file of this lawsuit.
Accordingly, the Court ORDERS that at time of trial, Robert Primo is
precluded from presenting evidence or arguments opposing Scott
Rothenberg’s claims for attorneys’ fees to collect attorneys’ fees, and for
the recovery of exemplary damages. This sanction is ordered pursuant to
Texas Rule of Civil Procedure 215.2(b)(4) as a result of Robert Primo’s
refusal to answer the deposition questions set forth above, and is ordered in
light of Robert Primo’s history of repeatedly violating this Court’s orders
pertaining to pretrial discovery in the above-captioned and numbered
lawsuit.
Rothenberg then objected to the trial court considering all exhibits to Primo’s summary
judgment response based upon the trial court’s June 10, 2013 sanctions order.
Rothenberg also objected to the trial court considering Meyer’s affidavit because it is
“conclusory, without proper factual support and methodological analysis, is based upon
the bare ipse dixit of Meyer, and therefore, is of no legal effect.”
Primo filed a “Motion to Strike Rothenberg’s Evidence in Support of His Motion
for Summary Judgment” on November 1, 2013. Primo argued that Rothenberg
produced his fee report for the first time on October 2, 2013, but “has been in
possession of that evidence throughout the litigation and has failed to produce it in
discovery despite numerous requests and his duty to supplement his responses.” Primo
argued that “Rothenberg’s withholding of his invoices by 257 days after his Plaintiff’s
First Amended Petition filed on January 17, 2013[,] in which he claimed attorney’s fees
for the first time, completely dwarfs by nearly fourteen-fold” when compared to Primo’s
failure to produce the Briar Green indemnity suit record “merely 19 days after the
expert designation.” Primo also asked the trial court to strike Rothenberg’s affidavit
attached to his summary judgment motion as being conclusory and irrelevant.
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stating that “the document requested is the court reporter’s work product and
easily available from [a] source other than” Primo.
• In response to Rothenberg’s second set of interrogatories (numbers 1 through 3)
and second request for production of documents, Primo objected to the
interrogatories because the “number of interrogatories greatly exceeds the
maximum number of interrogatories allowed by Texas Rules of Civil Procedure.”
Primo knew this objection was “frivolous and groundless” because Primo had
made this same objection in response to Rothenberg’s original set of
interrogatories and the trial court had overruled it; Primo’s refusal to respond to
these interrogatories and request for production justified a presumption that
Primo’s counterclaims and affirmative defenses addressed in these interrogatories
and request for production lack merit.
• In response to Rothenberg’s second request for production of the complete
indemnity suit reporter’s record, Primo objected that “the document requested is
the court reporter’s work product and easily available from” another source.
Primo knew this objection was “frivolous and groundless” because Primo had
made this same objection at the March 11, 2013 hearing and the trial court
ordered him to give Rothenberg the trial transcript by March 31, 2013.
• Even after the trial court overruled Primo’s objections to Rothenberg’s first set of
interrogatories and first request for production and ordered Primo in its January
29, 2013 order to provide Rothenberg full and complete answers, Primo served
first supplemental responses on February 15, 2013, that were inadequate,
incomplete, and in violation of the trial court’s order.
• With his first supplemental responses to eight requests for production, “Primo did
not produce a single document.” Primo provided Rothenberg with access to a
website on which the requested documents allegedly were stored among 80,000
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movant represents that there is no evidence of one or more essential elements of the
claims for which the non-movant bears the burden of proof at trial. Tex. R. Civ. P.
166a(i). We sustain a no-evidence summary judgment when (a) there is a complete
absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence
from giving weight to the only evidence offered to prove a vital fact; (c) the evidence
offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence
conclusively establishes the opposite of the vital fact. King Ranch, Inc. v. Chapman,
118 S.W.3d 742, 751 (Tex. 2003).
Less than a scintilla of evidence exists when the evidence is so weak as to do no
more than create a mere surmise or suspicion of a fact. Id. On the other hand, more
than a scintilla of evidence exists when reasonable and fair-minded people could differ
in their conclusions based on the evidence. Id. To raise a genuine issue of material fact,
the evidence must exceed mere suspicion. Ford Motor Co. v. Ridgway, 135 S.W.3d
598, 601 (Tex. 2004). “Evidence that is so slight as to make any inference a guess is in
legal effect no evidence.” Id. A party may move for a no-evidence summary judgment
after an adequate time for discovery has passed. Id.
B. Timing of Motion
Primo first argues that the trial court violated its docket control order when it
heard Rothenberg’s no-evidence summary judgment motion before the deadline for
hearing dispositive motions and pleas. According to Primo, the docket control order
“expressly states” that Rule 166a(i) motions could not be heard before June 10, 2013.
Primo’s contention is incorrect. The docket control order states: “If subject to
interlocutory appeal, dispositive motions or pleas must be heard by” June 10, 2013. The
docket control order sets no deadline for the trial to hear “Summary Judgment motions
not subject to an interlocutory appeal” or “Rule 166a(i) motions.” Accordingly, the trial
court did not violate its docket control order, and we overrule Primo’s issue in that
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“review the materials that Primo’s testifying expert witness has reviewed in formulating
his opinions;” and (2) “do a full and effective Daubert challenge to the relevance and
reliability of Primo’s testifying expert witnesses opinions.” Rothenberg further argued
that (1) “Primo’s numerous and serious abuses of the discovery process as set forth” in
his motion justified a presumption that Primo’s claims or defenses lack merit; and (2)
“this is one of the rare cases where the imposition of death penalty sanctions for
numerous and serious violations of discovery orders is appropriate.”
Rothenberg requested that the trial court strike Primo’s live pleadings; render a
default take-nothing judgment on all of Primo’s counterclaims; and render a default
judgment on all of Rothenberg’s “affirmative causes of action, leaving only the issues of
actual damages, exemplary damages and attorney’s fees to be awarded to
[Rothenberg].” Alternatively, he asked the trial court to strike Primo’s testifying expert
witness designation as a discovery sanction and order Primo to fully and completely
answer discovery requests within ten days.
The trial court signed an order on May 9, 2013, which (among other things)
confirmed its oral order pronounced at the March 11, 2013, hearing instructing Primo to
cooperate and allow Rothenberg to take Primo’s deposition by April 10, 2013, and
instructing Primo to produce the reporter’s record of the Briar Green indemnity suit to
Rothenberg.
Primo filed his response to Rothenberg’s “Motion For Death Penalty Sanctions,
Or Alternatively, Motion For Sanctions And Motion To Compel Against Robert Primo”
on May 10, 2013. Primo argued as follows.
• Rothenberg’s authorities did not support death penalty sanctions because there are
no “chronic grave discovery violations and disregard for the court’s increasingly
stern prior sanctions over a span of four years.”
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• Primo’s prior failure to produce the reporter’s record of the indemnity trial did not
deny Rothenberg the opportunity to make a Daubert challenge because Primo
provided the reporter’s record on May 6, 2013, with his response to Rothenberg’s
no-evidence summary judgment motion, and nothing in the docket control order
prevented Rothenberg from challenging Primo’s designated expert.
• Primo answered each interrogatory and supplemented his responses by the trial
court’s due date of February 15, 2013.
• When Rothenberg’s second set of interrogatories exceeded the maximum number
of permissible interrogatories, Primo objected and Rothenberg did not file a
motion to compel Primo to answer or “make an attempt to resolve the matter
amicably.”
• Despite Primo’s objections to the excessive number of interrogatories, Primo
served Rothenberg with supplemental responses to these interrogatories.
• Primo timely served responses on Rothenberg. Although Primo “did not serve
the responsive documents on Rothenberg,” Primo “did make the documents
available for inspection at Rothenberg’s leisure” and “Rothenberg did so inspect
them for weeks.”
• All the documents Primo produced already were in Rothenberg’s possession.
• Primo allegedly served Rothenberg with the indemnity trial transcript but did not
specify a date of service; Primo also attached the trial transcript to his no-
evidence summary judgment response on May 6, 2013.
• Primo provided the name of his expert on January 29, 2013.
• Although Primo did not supplement his discovery responses after pleading a
DTPA claim on April 1, 2013, the pleading is “clearly and fully described in the
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expert’s report” and in Primo’s response to Rothenberg’s no-evidence summary
judgment motion.
• Primo made all necessary supplementations.
• Primo had not filed a disciplinary complaint against Rothenberg.
• The trial court never had sanctioned Primo for any alleged discovery abuse and
Rothenberg failed to demonstrate “any discovery abuse whatsoever” or provide
“any authority that any conduct by [Primo] in this lawsuit is sanctionable, let
alone to the extreme level of death penalty sanctions.”
Primo attached two exhibits to his response. Exhibit One contained Primo’s
supplemental responses to Rothenberg’s second requests for production; Primo claimed
that all documents referenced in Primo’s supplemental responses to Rothenberg’s
second set of interrogatories, 2 “except the trial transcript, have been produced and/or
Rothenberg admitted to being in possession thereof.” Primo also stated that the
indemnity trial record “is being produced herewith” subject to his previous objection
that the indemnity trial record “is easily available for purchase” from the court reporter.
Exhibit Two contained Primo’s second supplemental responses to Rothenberg’s first set
of interrogatories; Primo provided supplemental answers to each subpart to
Interrogatory No. 2 and provided an answer to Interrogatory No. 13.
D. Trial Court Rulings on No-Evidence Summary Judgment and Death
Penalty Sanctions
At 10:00 a.m. on May 13, 2013, the trial court held a hearing on Rothenberg’s
motion for death penalty sanctions. Primo did not appear at the 10 a.m. hearing. At the
hearing, Rothenberg made the following argument in support of his death penalty
sanctions motion:
2
We have not found supplemental responses to Rothenberg’s second set of interrogatories filed
by Primo in the record before us.
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This is a case where I have outlined in my motion for death penalty
sanctions eight different matters in which I have requested discovery in this
case. Your Honor has signed orders or stated orders on the record
compelling that discovery and Dr. Primo has either failed or refused to
comply with Your Honor’s orders. Normally death penalty sanctions are
something that are difficult to support because you have to show that it’s an
indication — the abuse of the discovery process are such that it’s an
indication that the other side’s claims lack merit. In this case, the
discovery that I requested goes to the very heart of his case. Dr. Primo
filed a legal malpractice lawsuit against me alleging that I mishandled a
jury trial in the 281st District Court. I requested the trial record from that
case which Dr. Primo ordered and paid for and provided to his expert
witness. Dr. Primo objected to providing it. Your Honor compelled him to
provide it. Dr. Primo then refused to provide it again by the deadline. And
most cynically of all, a week before today, after Your Honor ordered him
to produce it in response to my no[-]evidence motion for summary
judgment, he did produce it. But it was too late for me to give it to an
expert to evaluate the case in order to obtain expert testimony to protect
myself. And so, Your Honor, given the eight discovery abuses that I’ve
outlined in my motion, all of which are supported by Your Honor’s either
written or oral orders during hearings, Dr. Primo’s repeated abuses of the
discovery process in this case clearly establish the lack of merit to his
claims. And therefore, I’m requesting a death penalty sanction of the
striking of his pleadings and the only thing that would be left in this case
after that would be a prove-up of my damages, attorney’s fees and costs of
court. And if I decide to go forward on my fraud claim for punitive
damages that as well, but I would certainly reevaluate that in light of what
Your Honor does here today.
The trial court stated that it would grant Rothenberg’s motion and strike all of Primo’s
pleadings.
At 11:00 a.m. on the same day, the trial court held a hearing on Rothenberg’s no-
evidence summary judgment motion. Primo appeared at the 11:00 a.m. hearing. When
the trial court informed Primo that it already had conducted a hearing on Rothenberg’s
motion for death penalty sanctions at 10:00 a.m., Primo stated that he believed
Rothenberg’s motions for death penalty sanctions and no-evidence summary judgment
both were set for 11:00 a.m. Rothenberg stated that he had sent Primo notice through
18
ProDoc.com, which affirmatively showed that the hearing on the motion for death
penalty sanctions was noticed for 10:00 a.m., and the hearing on the no-evidence
summary judgment motion was noticed for 11:00 a.m. Rothenberg then objected to the
trial court considering the affidavit and expert report of Primo’s expert, Meyer, because
the court struck them as part of the death penalty sanctions. The trial court sustained
Rothenberg’s objection and stated that it would grant his no-evidence summary
judgment motion.
After the hearing, the trial court signed an order on May 13, 2013, in which it
granted Rothenberg’s motion for no-evidence summary judgment with respect to
Primo’s defenses and counterclaims. The trial court stated that (1) Primo would take
nothing against Rothenberg on all causes of action and counterclaims set forth in
Primo’s first amended answer and counterclaim; (2) “[t]his is an interlocutory order
because the issues of the amount of Rothenberg’s recovery against Primo for attorney’s
fees” in the Briar Green indemnity suit and “Rothenberg’s causes of action for fraud,
attorney’s fees, interest and costs of court in this lawsuit remain pending;” and (3) all
evidentiary objections set forth in Rothenberg’s reply to Primo’s no-evidence summary
judgment response are sustained. On its face, this order does not reference sanctions or
recite that the no-evidence summary judgment is being granted pursuant to a request for
death penalty sanctions.
The trial court signed a separate “Order and Interlocutory Judgment” on May 22,
2013. The trial court stated that it considered Rothenberg’s motion for death penalty
sanctions with the attached written exhibits, applicable law, all prior proceedings in the
lawsuit, the May 13, 2013 hearing on the motion for death penalty sanctions, and
Primo’s absence at the May 13, 2013 hearing despite receiving proper notice of the
hearing. Based upon these considerations, the trial court made 52 findings of fact and
five conclusions of law along with nine rulings. The trial court (1) struck Primo’s “First
19
Amended Answer and Counterclaim;” (2) struck Primo’s affidavit as verification filed
with Primo’s “First Amended Answer and Counterclaim;” (3) struck Primo’s “Original
Answer and Counterclaim” and accompanying affidavit verifying the pleading; (4)
struck the affidavit and expert witness report of Leonard Meyer; (5) ordered “Primo not
to file any further answer, amended answer, supplemental answer, counterclaim,
amended counterclaim, supplemental counterclaim, third-party petition, or any other
pleading in the above-captioned and numbered lawsuit;” (6) ordered that Primo take
nothing on all claims and counterclaims he asserted or could have asserted; (7) ordered
that all of Primo’s “affirmative defenses and verified pleadings are without merit and
overruled in their entirety;” (8) ordered that Rothenberg recover from Primo
$57,999.63, “representing past due sums under the agreement [between Rothenberg and
Primo] in question plus contractually agreed interest” and court costs; and (9) ordered
that “the only matters remaining for decision in this case are the amount of attorney’s
fees to be awarded to Scott Rothenberg for handling the prosecution and defense of all
claims, demands, and causes of action in the above-captioned and numbered lawsuit, as
well as the amount of exemplary damages to be awarded to Scott Rothenberg from
Robert Primo as a result of Robert Primo’s fraud in entering into the October 29, 2012
written agreement without any intent to comply therewith.”
E. Severance
Rothenberg filed a motion to sever, and the trial court signed a severance order on
June 10, 2013. The trial court ordered that (1) Rothenberg’s “claims to recover
$57,999.63 in attorney’s fees due and owing” from Primo were “severed from this
action, with such severed claims and causes of action to be filed under Cause No. 2012-
68391-A;” (2) “the only live claims remaining for resolution in the above-captioned and
numbered lawsuit (2012-68391) are the amount of attorney’s fees to Scott Rothenberg
from Robert Primo for handling the prosecution and defense of all claims, demands, and
20
causes of action in the above-captioned and numbered lawsuits (2012-68391 and 2012-
68391-A), as well as the amount of exemplary damages to Scott Rothenberg from
Robert Primo as a result of Robert Primo’s fraud in entering into the October 29, 2012
written agreement without any intent to comply therewith;” (3) various pleadings and
documents related to the severed claims were to be filed under cause number 2012-
68391-A; (4) the “Order and Interlocutory Judgment” of May 22, 2013, was a final
judgment for purposes of appeal; and (5) Primo would pay any costs “associated with
the severance in question” upon entry of a final judgment in cause number 2012-68391.
Following severance, Primo timely filed a motion for new trial under the severed
cause number 2012-68391-A on July 10, 2013. See Tex. R. Civ. P. 329b. Primo argued
that the trial court abused its discretion by imposing death penalty sanctions without
first considering the availability of less stringent discovery sanctions, and whether lesser
sanctions would have promoted compliance with discovery. The trial court signed an
order denying Primo’s motion for new trial on August 19, 2013.
F. Additional Proceedings
Rothenberg filed a notice of partial non-suit in cause number 2012-68391 on July
9, 2013, in which he stated that he “hereby non-suits without prejudice his claim for
‘exemplary damages to be awarded to Scott Rothenberg from Robert Primo as a result
of Robert Primo’s fraud in entering into the October 29, 2012 written agreement without
any intent to comply therewith.’ Remaining pending in the above-captioned and
numbered matter is the amount of trial court and conditional appellate attorney’s fees to
be awarded to Scott Rothenberg for handling the prosecution and defense of all claims,
demands, and causes of action in the above-captioned and numbered lawsuit.” The trial
court signed Rothenberg’s notice of partial non-suit on July 19, 2013.
On August 27, 2013, Rothenberg filed a verified motion for entry of additional
findings of fact and conclusions of law “in support of the [c]ourt’s May 22, 2013 order
21
of case-dispositive sanctions and its June 10, 2013 Order.” Rothenberg argued that,
after the trial court granted death penalty sanctions on May 22, 2013, Primo violated
Texas Rules of Civil Procedure 203.3(c) and 203.4 because “Primo has had actual
possession of the original deposition transcript [of attorney John Irvine], the exhibits
from the oral deposition and the videotape from the oral deposition for over a month and
a half (transcription and exhibits) and three months (videotape).” Rothenberg
contended that Primo denied “access to the deposition transcript, signed errata sheet,
exhibits and video and audio tape throughout that time.” Rothenberg also argued that
Primo’s behavior before and after the imposition of death penalty sanctions established
that no lesser sanction would have deterred Primo from violating the Texas Rules of
Civil Procedure. Rothenberg claimed that Primo made several misrepresentations to the
trial court at an August 26, 2013 hearing. Rothenberg asked the trial court to
“reconsider the case dispositive sanctions set forth in its May 22, 2013 Order” and
“order that all relief granted” in that order “is necessary and proper.”
Primo timely filed a notice of appeal in severed cause number 2012-68391-A on
September 6, 2013, in which he appealed from the (1) May 13, 2013 order granting
Rothenberg’s amended no-evidence summary judgment motion; and (2) May 22, 2013
order granting Rothenberg’s motion for death penalty sanctions against Primo. This
notice of appeal was timely because it was filed within 90 days of the date when the
challenged order became final and appealable due to the June 10, 2013 severance order.
See Tex. R. App. P. 26.1.
After a hearing on September 16, 2013, the trial court signed “Additional
Findings Of Fact And Conclusions Of Law.” The trial court stated that it granted
Rothenberg’s verified motion for entry of additional findings of fact and conclusions of
law; it then made 24 findings of fact and four conclusions of law. The trial court also
stated:
22
Based upon Robert Primo’s conduct as set forth in this Order, as
established by the exhibits to Rothenberg’s August 27, 2013 motion, and
by the Court taking judicial notice of the Court’s entire file in Cause Nos.
2012-68391 and Cause No. 2012-68391-A, as well as all proceedings in
those two lawsuits to-date, and in reliance thereupon, the Court hereby
RECONSIDERS the case dispositive sanctions set forth in its May 22,
2013 Order and Interlocutory Judgment, as well as the Court’s June 10,
2013 Order. Based upon all of the foregoing, the Court hereby orders that
all relief granted in the Court’s May 22, 2013 Order and Interlocutory
Judgment and in its June 10, 2013 Order, is necessary and proper to the
efficient administration of justice, is legally appropriate under all
circumstances presented, complies with the due process requirements of all
parties to this lawsuit, and shall stand without any change whatsoever.
The trial court’s September 16, 2013 “Additional Findings Of Fact And Conclusions Of
Law” were filed under cause number 2012-68391 and the severed cause number 2012-
68391-A.3
G. Rothenberg’s Traditional Motion for Summary Judgment
Rothenberg filed a traditional summary judgment motion in cause number 2012-
68391 on October 2, 2013; this motion addressed Rothenberg’s claim to additional
attorney’s fees incurred in litigating his entitlement to the initial $57,999.63 fee.
Rothenberg asserted his entitlement to an additional fee award based on the adjudication
of the initial $57,999.63 fee in his favor in the May 22, 2013 death penalty sanctions
order. He stated that his “summary judgment is based upon Exhibit A- the affidavit of
Scott Rothenberg, Exhibit B- the curriculum vitae of Scott Rothenberg, and Exhibit C-
billing records of Scott Rothenberg pertaining to the handling of Cause No. 2012-
68391, ‘Scott Rothenberg v. Robert Primo,’ in the 133rd Judicial District Court of and
for Harris County, Texas and in the courts of appeals up through October 2, 2013.”
Rothenberg argued that exhibits A, B, and C established as a matter of law his
3
The record before us does not contain a “June 10, 2013 Order” of additional discovery
sanctions as referred to in the trial court’s “Additional Findings Of Fact And Conclusions Of Law”
signed on September 16, 2013.
23
entitlement to recover $148,100 from Primo pursuant to chapter 38 of the Texas Civil
Practice and Remedies Code “for professional legal services he performed in the trial
court and in the court of appeals up through October 2, 2013.”
Primo filed a response to Rothenberg’s traditional summary judgment motion on
October 28, 2013. Primo argued that the trial court should not grant Rothenberg’s
summary judgment motion because (1) the attorney’s fees amount Rothenberg sought to
recover was a question of fact necessitating an evidentiary hearing, and affidavits in
support of attorney’s fees were “insufficient to prove attorney’s fees;” (2) Primo raised a
genuine issue of material fact that Rothenberg’s attorney’s fees were not reasonable and
necessary in the form of an affidavit from Primo’s expert, Meyer, who found
Rothenberg’s invoices and amounts “to be grossly inflated, false, and largely
unnecessary” and who also found Rothenberg’s “pleadings and briefs to be
unnecessarily verbose, not diligently prepared with large portions pasted and re-pasted
over and over;” (3) Rothenberg’s summary judgment evidence of time sheets “must be
stricken due to Rothenberg’s undue withholding of that material evidence of attorney’s
fees;” (4) a claim for attorney’s fees cannot be maintained independently in a separate
lawsuit from the main claim for breach of contract and sworn account; (5) the single
action rule prohibited the severance of Rothenberg’s claim for attorney’s fees, and, by
seeking a severance, Rothenberg forfeited his attorney’s fees claim in this lawsuit; and
(6) res judicata barred Rothenberg’s attorney’s fees claim in this lawsuit.
Rothenberg filed a reply to Primo’s response to Rothenberg’s summary judgment
motion on November 1, 2013, in which he stated that “Primo improperly objected to
and refused to answer a direct question regarding Primo’s present net worth” during a
court-ordered deposition; “forc[ed] Rothenberg to move to compel the information from
Primo;” and the trial court therefore entered the following sanctions order on June 10,
2013:
24
The Court finds that Robert Primo has not learned a lesson regarding
acceptable and unacceptable conduct in pretrial discovery from the
imposition of death penalty sanctions against him in this case. In so
finding, the Court considers all of Robert Primo’s abuses of the discovery
process pertaining to seeking and resisting pretrial discovery in this
lawsuit, as reflected in Scott Rothenberg’s motion for the imposition of
death penalty sanctions, and otherwise in the file of this lawsuit.
Accordingly, the Court ORDERS that at time of trial, Robert Primo is
precluded from presenting evidence or arguments opposing Scott
Rothenberg’s claims for attorneys’ fees to collect attorneys’ fees, and for
the recovery of exemplary damages. This sanction is ordered pursuant to
Texas Rule of Civil Procedure 215.2(b)(4) as a result of Robert Primo’s
refusal to answer the deposition questions set forth above, and is ordered in
light of Robert Primo’s history of repeatedly violating this Court’s orders
pertaining to pretrial discovery in the above-captioned and numbered
lawsuit.
Rothenberg then objected to the trial court considering all exhibits to Primo’s summary
judgment response based upon the trial court’s June 10, 2013 sanctions order.
Rothenberg also objected to the trial court considering Meyer’s affidavit because it is
“conclusory, without proper factual support and methodological analysis, is based upon
the bare ipse dixit of Meyer, and therefore, is of no legal effect.”
Primo filed a “Motion to Strike Rothenberg’s Evidence in Support of His Motion
for Summary Judgment” on November 1, 2013. Primo argued that Rothenberg
produced his fee report for the first time on October 2, 2013, but “has been in
possession of that evidence throughout the litigation and has failed to produce it in
discovery despite numerous requests and his duty to supplement his responses.” Primo
argued that “Rothenberg’s withholding of his invoices by 257 days after his Plaintiff’s
First Amended Petition filed on January 17, 2013[,] in which he claimed attorney’s fees
for the first time, completely dwarfs by nearly fourteen-fold” when compared to Primo’s
failure to produce the Briar Green indemnity suit record “merely 19 days after the
expert designation.” Primo also asked the trial court to strike Rothenberg’s affidavit
attached to his summary judgment motion as being conclusory and irrelevant.
25
On November 4, 2013, Primo filed a sur-reply in opposition to Rothenberg’s
summary judgment motion, arguing that (1) Rothenberg incorrectly equated a summary
judgment proceeding to a trial; (2) Meyer’s affidavit raised fact issues that Rothenberg’s
fees are unreasonable and unnecessary; (3) Meyer methodically developed every
opinion he stated in his affidavit; (4) the June 10, 2013 sanctions order Rothenberg cited
in his reply was irrelevant with regard to his summary judgment motion; and (5) the trial
court’s sanction pronounced in its June 10, 2013 order constitutes an abuse of discretion
by the trial court.
H. The Trial Court’s Grant of Traditional Summary Judgment
The trial court signed a “Final Judgment” in cause number 2012-68391 on
November 5, 2013. In this judgment, the trial court (1) incorporated language from its
June 10, 2013 sanctions order; (2) stated that Primo filed a writ of mandamus regarding
the trial court’s June 10, 2013 sanctions order “but received no relief . . . whatsoever;”
(3) stated that a summary judgment is considered to be a trial under Texas law; (4)
sustained Rothenberg’s objection to Primo’s evidence attached to Primo’s response to
Rothenberg’s summary judgment motion and struck Primo’s evidence; (5) sustained
Rothenberg’s objection to the trial court considering Meyer’s affidavit as evidence
because the affidavit is “conclusory, without proper factual support and methodological
analysis, [and] relies upon the bare ipse dixit of Meyer;” (6) concluded that “there are no
genuine issues of material fact, and that Rothenberg is entitled to judgment as a matter
of law;” and (7) ordered that Rothenberg recover $148,100 in “reasonable attorney’s
fees” from Primo under chapter 38 for “professional legal services performed in the trial
court and in the courts of appeals up through October 2, 2013,” as well as attorney’s
fees in the event Primo unsuccessfully pursues appellate relief.
Primo timely filed a notice of appeal in cause number 2012-68391 on November
6, 2013, appealing the trial court’s “Final Judgment” of November 5, 2013.
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ANALYSIS
We first address the parties’ arguments in cause number 14-13-00794-CV
regarding the propriety of (1) a no-evidence summary judgment on Primo’s affirmative
defenses and counterclaims; and (2) death penalty sanctions imposed against Primo.
Next, we address the parties’ arguments in cause number 14-13-00997-CV regarding
the propriety of a traditional summary judgment in favor of Rothenberg on his claim to
recover additional attorney’s fees incurred in litigating the initial $57,999.63 fee
dispute.
Appeal in Cause No. 14-13-00794-CV
I. No-Evidence Summary Judgment on Primo’s Affirmative Defenses and
Counterclaims
We begin by focusing on Primo’s second issue challenging the trial court’s grant
of Rothenberg’s no-evidence summary judgment motion. We focus on this order first
because the no-evidence summary judgment was signed before the imposition of death
penalty sanctions. By its terms, the no-evidence summary judgment order does not
reference or depend on the propriety of death penalty sanctions imposed against Primo.
Primo argues that the trial court “abused [its] discretion” by signing an order
granting Rothenberg’s no-evidence summary judgment motion on May 13, 2013,
because (1) doing so violated a docket control order; (2) Rothenberg’s motion was
“legally insufficient;” (3) the trial court improperly struck Primo’s summary judgment
evidence; and (4) Primo “brought forth immensely more than a scintilla of competent
evidence.”
A. Standard of Review
We review a summary judgment de novo. Duerr v. Brown, 262 S.W.3d 63, 68
(Tex. App.—Houston [14th Dist.] 2008, no pet.) (citing Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)). In a no-evidence summary judgment, the
27
movant represents that there is no evidence of one or more essential elements of the
claims for which the non-movant bears the burden of proof at trial. Tex. R. Civ. P.
166a(i). We sustain a no-evidence summary judgment when (a) there is a complete
absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence
from giving weight to the only evidence offered to prove a vital fact; (c) the evidence
offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence
conclusively establishes the opposite of the vital fact. King Ranch, Inc. v. Chapman,
118 S.W.3d 742, 751 (Tex. 2003).
Less than a scintilla of evidence exists when the evidence is so weak as to do no
more than create a mere surmise or suspicion of a fact. Id. On the other hand, more
than a scintilla of evidence exists when reasonable and fair-minded people could differ
in their conclusions based on the evidence. Id. To raise a genuine issue of material fact,
the evidence must exceed mere suspicion. Ford Motor Co. v. Ridgway, 135 S.W.3d
598, 601 (Tex. 2004). “Evidence that is so slight as to make any inference a guess is in
legal effect no evidence.” Id. A party may move for a no-evidence summary judgment
after an adequate time for discovery has passed. Id.
B. Timing of Motion
Primo first argues that the trial court violated its docket control order when it
heard Rothenberg’s no-evidence summary judgment motion before the deadline for
hearing dispositive motions and pleas. According to Primo, the docket control order
“expressly states” that Rule 166a(i) motions could not be heard before June 10, 2013.
Primo’s contention is incorrect. The docket control order states: “If subject to
interlocutory appeal, dispositive motions or pleas must be heard by” June 10, 2013. The
docket control order sets no deadline for the trial to hear “Summary Judgment motions
not subject to an interlocutory appeal” or “Rule 166a(i) motions.” Accordingly, the trial
court did not violate its docket control order, and we overrule Primo’s issue in that
28
regard.
Primo also argues that the trial court improperly granted Rothenberg’s no-
evidence summary judgment motion because Primo had inadequate time for discovery.
In his response to Rothenberg’s no-evidence summary judgment motion, Primo argued
that he did not have adequate time for discovery. Primo argued that Rothenberg’s
“[m]otion must be denied and/or continued until such time as discovery is complete in
this matter.” Primo withdrew this complaint in his sur-response to Rothenberg’s no-
evidence summary judgment motion. Primo stated: “[Primo] withdraws his objection
as to the improper timing of [Rothenberg’s] Motion as there is ample evidence
presented even in the face of Rothenberg[’s] numerous antics as to press for summary
judgment . . . .”
Having withdrawn his objection to the timing of Rothenberg’s no-evidence
summary judgment motion, Primo cannot contend on appeal that he had inadequate time
for discovery. We overrule Primo’s issue in that regard.
C. Sufficiency of Motion
Primo contends that Rothenberg’s motion was “legally insufficient” because it
“challenged 72 no-evidence ‘items’” that do “not constitute essential elements and do
not state the cause of action they purport to attack the elements of.” Primo nonetheless
concedes on appeal that, of the “72 items,” at least 19 can be “matched to an actual
essential element of a cause of action pleaded by [Primo].” In light of this concession,
we cannot conclude that the no-evidence summary judgment motion was insufficient for
failure to challenge elements of causes of action Primo pleaded in this case. We
overrule Primo’s issue in this regard.
D. Sufficient Probative Evidence
Primo also contends that the trial court erred “by granting no-evidence summary
29
judgment when [Primo] brought forth immensely more than a scintilla of competent
evidence.”
Primo’s brief sets out the standard for reviewing a no-evidence summary
judgment on appeal. Primo’s brief then asserts in conclusory fashion that “[i]t is clear
that [Primo] brought forth more than a scintilla of probative evidence free of procedural
defects or any contradiction.” Primo’s brief neither cites nor identifies any specific
summary judgment evidence attached to his response to raise a genuine issue of material
fact. Primo’s brief does not explain how his summary judgment evidence raises a
genuine issue of material fact with respect to the 19 elements Rothenberg challenged in
his no-evidence summary judgment motion. Thus, Primo’s issue presents nothing for
our review. See Tex. R. App. P. 38.1(i) (“The brief must contain a clear and concise
argument for the contentions made, with appropriate citations to authorities and to the
record.”); see also Rivera v. Countrywide Home Loans, Inc., 262 S.W.3d 834, 842 (Tex.
App.—Dallas 2008, no pet.); Hope’s Fin. Mgmt. v. Chase Manhattan Mortg. Corp., 172
S.W.3d 105, 107-08 (Tex. App.—Dallas 2005, pet. denied).
We overrule Primo’s challenges to the trial court’s grant of Rothenberg’s no-
evidence summary judgment motion in issue two. 4
4
In light of our disposition of Primo’s sufficiency argument, we need not address Primo’s
additional contention that the trial court “abused its discretion” by striking his summary judgment
evidence “en masse” because (1) there were “no procedural defects” in Primo’s summary judgment
evidence; (2) Rothenberg’s objections to Primo’s summary judgment evidence were not sufficiently
specific; and (3) the evidence Primo attached to his no-evidence summary judgment response was
based on well-established methodology, was not conclusory, and did not constitute hearsay. A
successful challenge of Primo’s complaint that the trial court erroneously struck his summary
judgment evidence would be inconsequential; Primo failed to explain in his appellate brief how his
summary judgment evidence raised a genuine issue of fact on any of the elements Rothenberg attacked
in his no-evidence summary judgment motion. See Tex. R. App. P. 38.1(i). We overrule Primo’s issue
in this regard.
We also reject Primo’s additional contention that the trial court abused its discretion by issuing
“a void order of summary judgment on claims already adjudicated by sanction.” Primo argues that,
after the trial court “issued” an “oral order on the record in open court” granting Rothenberg’s death
30
September 16, 2013 order.
We now turn to the merits of whether death penalty sanctions are appropriate on
this record.
C. Propriety of Death Penalty Sanctions
The “Order and Interlocutory Judgment” signed on May 22, 2013, and
subsequently incorporated into the Additional Findings of Fact and Conclusions of Law
signed on September 16, 2013, is a death penalty sanctions order. It precludes any
defense of Rothenberg’s claim for the initial $57,999.63 in attorney’s fees, and renders
judgment in favor of Rothenberg in that amount.
Primo argues that the trial court abused its discretion by imposing “manifestly
unjust and excessive sanctions” against him without first considering or testing lesser
sanctions. Primo argues that death penalty sanctions were not warranted because the
trial court signed only one order to compel discovery before imposing death penalty
sanctions. Primo further contends that there is no evidence of a “history of chronic non-
compliance,” bad faith, or “flagrant disregard for the responsibilities of discovery under
the rules.” According to Primo, he timely supplemented discovery requests “within a
short time and before the discovery deadline.”
Primo also contends that Rothenberg did not incur monetary expenses or suffer
prejudice from Primo’s failure to produce the indemnity trial transcript or other
discovery. Primo contends that Rothenberg (1) did not seek a continuance in order to
remedy the alleged disadvantage caused by delay in producing the reporter’s record
from the indemnity trial; (2) never named an expert who declined to serve as an expert
because of the transcript delay; (3) made “no assertion that his own designation [as
expert] is inferior;” and (4) had superior knowledge of the indemnity trial because he
represented Primo at trial. Primo notes that the docket control order does not contain a
40
A. Standard of Review and Governing Principles
Discovery sanctions serve three legitimate purposes: (1) securing compliance
with the rules; (2) deterring abuse; and (3) punishing abuse. Chrysler Corp. v.
Blackmon, 841 S.W.2d 844, 849 (Tex. 1992). We review a trial court’s imposition of
sanctions for an abuse of discretion. Am. Flood Research, Inc. v. Jones, 192 S.W.3d
581, 583 (Tex. 2006). “The test for an abuse of discretion is not whether, in the opinion
of the reviewing court, the facts present an appropriate case for the trial court’s actions,
but ‘whether the court acted without reference to guiding rules and principles.’” Cire v.
Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004) (quoting Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985)). The ruling will be reversed only if
the trial court acted without reference to any guiding rules and principles, such that its
ruling was arbitrary or unreasonable. Id. at 839.
“In conducting our review, we are not limited to a review of the ‘sufficiency of
the evidence’ to support the trial court’s findings; rather, we make an independent
inquiry of the entire record to determine if the court abused its discretion by imposing
the sanction.” Elgohary v. Tex. Workforce Comm’n, No. 14-09-00108-CV, 2010 WL
2326126, at *4 (Tex. App.—Houston [14th Dist.] June 10, 2010, no pet.) (mem. op.);
see Am. Flood Research, Inc., 192 S.W.3d at 583 (“In reviewing sanctions orders, the
appellate courts are not bound by a trial court’s findings of fact and conclusions of law;
rather, appellate courts must independently review the entire record to determine
whether the trial court abused its discretion.”). An appellate court looks at the entire
record, including any evidence, arguments of counsel, the written discovery on file, and
the circumstances surrounding the party’s alleged discovery abuse. Johnson v.
Chesnutt, 225 S.W.3d 737, 741 (Tex. App.—Dallas 2007, pet. denied); Butan Valley,
N.V. v. Smith, 921 S.W.2d 822, 827 (Tex. App.—Houston [14th Dist.] 1996, no writ).
Rule 215.2(b) lists the sanctions a court may impose. They include: (1)
32
disallowing any further discovery of any kind; (2) charging all or a portion of the
expenses of discovery against the disobedient party; (3) determining designated facts
shall be taken to be established; (4) refusing to allow the disobedient party to support or
oppose designated claims or defenses, or prohibiting designated evidence from being
introduced into evidence; (5) striking pleadings or parts thereof, staying the action until
the order is obeyed, dismissing the action with or without prejudice, or rendering
judgment by default; (6) imposing a contempt order; and (7) requiring the disobedient
party to pay reasonable expenses, including attorney’s fees, caused by the sanctionable
conduct. Tex. R. Civ. P. 215.2(b).
TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991),
announced a two-part test for courts to apply when determining whether a sanction is
“just.”
First, there must be a direct nexus among the offensive conduct, the offender, and
the sanction imposed. Spohn Hosp. v. Mayer, 104 S.W.3d 878, 882 (Tex. 2003) (citing
TransAmerican, 811 S.W.2d at 917). A just sanction must be directed against the abuse
and toward remedying the prejudice caused to the innocent party, and the sanction
should be visited upon the offender. Id.
Second, just sanctions must not be excessive. TransAmerican, 811 S.W.2d at
917. “When discussing excessiveness, [the supreme court has] said that ‘the
punishment should fit the crime’ and that the sanction ‘should be no more severe than
necessary to satisfy its legitimate purposes.’” Paradigm Oil, Inc. v. Retamco Operating,
Inc., 372 S.W.3d 177, 187 (Tex. 2012) (quoting TransAmerican, 811 S.W.2d at 917).
“Moreover, discovery sanctions are primarily intended to remedy discovery abuse and
should be tailored to serve their remedial purpose.” Id. For this reason, the supreme
court requires courts to consider less stringent sanctions and whether such lesser
sanctions would fully promote compliance. TransAmerican, 811 S.W.2d at 917; see
33
also Cire, 134 S.W.3d at 839; Spohn Hosp., 104 S.W.3d at 882.
The imposition of severe sanctions is further limited by constitutional due
process. TransAmerican, 811 S.W.2d at 917. “When a trial court strikes a party’s
pleadings and dismisses its action or renders a default judgment against it for abuse of
the discovery process, the court adjudicates the party’s claims without regard to their
merits but based instead upon the parties’ conduct of discovery.” Id. at 918. “‘[T]here
are constitutional limitations upon the power of courts, even in aid of their own valid
processes, to dismiss an action without affording a party the opportunity for a hearing
on the merits of his cause.’” Id. (quoting Societe Internationale v. Rogers, 357 U.S.
197, 209-10 (1958)). Discovery sanctions cannot be used to adjudicate the merits of a
party’s claims or defenses unless a party’s hindrance of the discovery process justifies a
presumption that its claims or defenses lack merit. TransAmerican, 811 S.W.2d at 918;
GTE Commc’n Sys. Corp. v. Tanner, 856 S.W.2d 725, 730 (Tex. 1993). “Sanctions
which are so severe as to preclude presentation of the merits of the case should not be
assessed absent a party’s flagrant bad faith or counsel’s callous disregard for the
responsibilities of discovery under the rules.” TransAmerican, 811 S.W.2d at 918.
Death penalty sanctions may be imposed in the first instance only in exceptional
cases when they are clearly justified and it is fully apparent that no lesser sanctions
would promote compliance with the rules. Cire, 134 S.W.3d at 840; Tanner, 856
S.W.2d at 729. A trial court “must analyze the available sanctions and offer a reasoned
explanation as to the appropriateness of the sanction imposed;” thus, a trial court is
“required to consider the availability of lesser sanctions before imposing death penalty
sanctions.” Cire, 134 S.W.3d at 840 (citing Tanner, 856 S.W.2d at 729). And, in all
but the most egregious and exceptional cases, a trial court is “required to test the
effectiveness of lesser sanctions by actually implementing and ordering each sanction
that would be appropriate to promote compliance with the trial court’s orders in the
34
case.” Id. at 842 (citing Chrysler, 841 S.W.2d at 849).
B. Waiver
As a threshold matter, we address Rothenberg’s arguments that death penalty
sanctions should be affirmed summarily because Primo failed to (1) provide this court
with a complete record or a statement of points; and (2) challenge on appeal the trial
court’s September 16, 2013 order, in which the trial court “reconsidered” its original
death penalty sanctions order signed on May 22, 2013, and again imposed death penalty
sanctions.
1. Incomplete record
Rothenberg invokes a presumption that omitted portions of the reporter’s record
are relevant and support the trial court’s sanctions order. See Tex. R. App. P. 34.6.
Rothenberg states that Primo failed to provide this court with a reporter’s record of
hearings held on August 19, 2013, August 26, 2013, and September 16, 2013;
Rothenberg also asserts that Primo failed to include in the clerk’s record Rothenberg’s
“written supplement to [his] January, 2013, motion to compel production, Primo’s
motion to recuse Judge McFarland, and Judge Underwood’s written order overruling
Primo’s motion to recuse.”5 According to Rothenberg, “Primo’s failure to bring forth a
record of all proceedings in the case makes it unnecessary for this Court to wade deeply
into the contentious proceedings in the trial court below.”
Primo responds that the presumption does not apply when the only omission from
the reporter’s record is non-evidentiary; he asserts that the trial court hearings held on
August 19, 2013, August 26, 2013, and September 16, 2013, were non-evidentiary.
We disagree with Rothenberg’s assertion that death penalty sanctions can be
5
Primo asserts that his motion to recuse the trial judge was filed in cause number 2012-68391
after severance on July 12, 2013. Rothenberg does not dispute Primo’s assertion.
35
affirmed based on a presumption that omitted portions of the reporter’s record are
relevant and support the trial court’s action. Rothenberg’s briefing as the appellee did
not dispute that the hearings held on August 19, 2013, August 26, 2013, and September
16, 2013, were non-evidentiary. 6 “When evidence is not submitted at a hearing, there
are no factual resolutions to presume in the trial court’s favor.” Butan Valley, 921
S.W.2d at 828. Based on this precept, this court has rejected an appellee’s argument
that a trial court’s sanctions order should be affirmed because the appellant failed to
produce a reporter’s record for three non-evidentiary hearings. Id. “Consequently, the
record we have before us is sufficient for us to determine if the trial court acted properly
in imposing sanctions.” Id.
Additionally, although Rothenberg states that Primo failed to include in the
clerk’s record a “written supplement” to Rothenberg’s January motion to compel,
Rothenberg does not state what this written supplement contains or how it pertains to
the imposition of death penalty sanctions against Primo. We note that the presumption
6
On rehearing, Rothenberg contends that the September 16 hearing was evidentiary because
exhibits were offered into evidence during that hearing. Rothenberg does not contend that the August
19, 2013 and August 26, 2013 hearings were evidentiary. In support of his contention that the
September 16, 2013 hearing was evidentiary, Rothenberg cites a motion filed by Primo in this court on
September 2, 2014. Primo’s motion in this court sought to supplement the record on appeal with a
copy of the September 16, 2013 hearing transcript. Rothenberg opposed supplementation in a response
filed in this court on September 12, 2014. This court denied supplementation on September 18, 2014.
In his motion to supplement the record on appeal, Primo represented that no live testimony was
presented at the September 16, 2013 hearing; he also represented that Rothenberg offered 23 exhibits
into evidence at the same hearing. According to the September 16, 2013 hearing transcript submitted
to this court in conjunction with the motion to supplement, Rothenberg told the trial court at the
September 16, 2013 hearing that the 23 exhibits “are the exhibits that were attached to my Motion for
Death Penalty Sanctions and the associated papers. They are exactly the same as what’s on file.” The
trial court recited its understanding that these exhibits “all came out of the Court’s record – they’re all
out of the Court’s file.” Rothenberg responded to the trial court’s statement as follows: “Exhibits A
through M is [sic] the exhibits that were attached to the Motion for Death Penalty Sanction. And then
N through X are the exhibits and other papers from the two motions that I filed for the additional
findings. There are no different papers.” We do not believe that application of the presumption under
Texas Rule of Appellate Procedure 34.6(c)(4) is warranted when the supposedly omitted evidence
already appears elsewhere in the appellate record.
36
being invoked here applies to the reporter’s record. See Tex. R. App. P. 34.6(c)(4)
(“The appellate court must presume that the partial reporter’s record designated by the
parties constitutes the entire record for purposes of reviewing the stated points or issues.
This presumption applies even if the statement includes a point or issue complaining of
the legal or factual insufficiency of the evidence to support a specific factual finding
identified in that point or issue.”). We do not suggest that Rule 34.6(c)(4) applies to
items omitted from a clerk’s record.
We reject Rothenberg’s contention that a presumption compels us to affirm the
death penalty sanctions against Primo.
2. September 16, 2013 “Additional Findings of Fact and
Conclusions of Law”
Rothenberg further argues that Primo’s asserted failure to challenge on appeal the
trial court’s “Additional Findings of Fact and Conclusions of Law” signed on
September 16, 2013, in which the trial court “reconsidered” its original death penalty
sanctions order signed on May 22, 2013, and reimposed them, requires us to affirm the
trial court’s imposition of death penalty sanctions. Rothenberg contends that Primo
“irrevocably waived” any complaint about the trial court’s imposition of death penalty
sanctions “by failing to attack in any manner the [trial] court’s September 16, 2013
written order reconsidering her prior granting of case-dispositive sanctions in light of
the additional evidence and proceedings addressed in the written order.”
Primo argues that he was not required to attack the September 16, 2013 order
because it did not pronounce any new rulings and expressly stated that the trial court’s
May 22, 2013 order “shall stand without any change whatsoever.”
We disagree with Rothenberg’s assertion that Primo forfeited his right to
challenge the trial court’s imposition of death penalty sanctions against him.
In addressing this waiver assertion, we begin by reviewing the timing of events in
37
Rothenberg argued in his motion for traditional summary judgment that (1) the
trial court’s May 22, 2013 order and interlocutory judgment imposed death penalty
sanctions against Primo and awarded Rothenberg $57,999.63 for his fee agreement
claim against Primo; (2) the trial court “severed its interlocutory judgment in the amount
of $57,999,63” on June 10, 2013, leaving as the only remaining issue “the amount of
attorney’s fees to be awarded to Scott Rothenberg for handling the prosecution and
defense of all claims, demands and causes of action” in the lawsuit; and (3) Rothenberg
was entitled to $148,100 in reasonable attorney’s fees from Primo pursuant to Chapter
38 of the Texas Civil Practice & Remedies Code “for professional legal services
performed in the trial court and in the courts of appeals up through October 2, 2013.”
The trial court signed an order granting Rothenberg’s traditional summary judgment
motion on November 5, 2013.
Chapter 38 allows a prevailing party to recover reasonable attorney’s fees in
addition to the amount of a valid claim and costs if the claim is for a sworn account or
an oral or written contract. See Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (7), (8)
(Vernon 2008). “To recover attorney’s fees under this statute, a party must first prevail
on the underlying claim and recover damages.” In re Nalle Plastics Family Ltd., 406
S.W.3d 168, 173 (Tex. 2013) (emphasis in original).
The basis identified for entitlement to the underlying fees was the May 22, 2013
sanctions order. With the reversal of the death penalty sanctions and the underlying fee
award of $57,999.63 as set out in the May 22, 2013 order, neither of these two prongs is
satisfied. Accordingly, the trial court’s traditional summary judgment in favor of
Rothenberg also must be reversed.
CONCLUSION
In cause number 14-13-00794-CV, we affirm the trial court’s judgment in part
with respect to the trial court’s grant of a no-evidence summary judgment. We reverse
49
additional instances of Primo’s conduct identified for the first time in the September 16,
2013 order.
Although Primo filed his notice of appeal in the “A” case ten days before the trial
court signed its September 16, 2013 order reaffirming the imposition of death penalty
sanctions, Rothenberg does not expressly contend that notice of appeal is ineffective or
that this court lacks appellate jurisdiction – and appropriately so. See Tex. R. App. P.
27.3 (“After an order or judgment in a civil case has been appealed, if the trial court
modifies the order or judgment, or if the trial court vacates the order or judgment and
replaces it with another appealable order or judgment, the appellate court must treat the
appeal as from the subsequent order or judgment and may treat actions relating to the
appeal of the first order or judgment as relating to the appeal of the subsequent order or
judgment.”); see also Roccaforte v. Jefferson Cnty., 341 S.W.3d 919, 925 (Tex. 2011)
(“[W]e treat Roccaforte’s appellate complaints about the trial court’s grant of the
County’s jurisdictional plea as though they related to the appeal of the final
judgment.”); Wohlfahrt v. Holloway, 172 S.W.3d 630, 633-34 (Tex. App.—Houston
[14th Dist.] 2005, pet. denied) (appeal from earlier final judgments treated as appeal
from later, modified judgment).
Insofar as Rothenberg contends that Primo’s briefing does not adequately assail
the September 16, 2013 order, we disagree. As framed in his opening brief in appellate
cause number 14-13-00794-CV, Primo’s first issue presented broadly asserts that the
trial court abused its discretion by imposing death penalty sanctions. Primo discusses
specific findings in the May 22, 2013 order; because these findings also were
incorporated wholesale into the September 16, 2013 order, this discussion likewise
addressed the basis for death penalty sanctions set forth in the subsequent order. The
additional discussion in Primo’s brief sweeps broadly enough to encompass all bases
upon which the trial court imposed death penalty sanctions, including those added in the
39
September 16, 2013 order.
We now turn to the merits of whether death penalty sanctions are appropriate on
this record.
C. Propriety of Death Penalty Sanctions
The “Order and Interlocutory Judgment” signed on May 22, 2013, and
subsequently incorporated into the Additional Findings of Fact and Conclusions of Law
signed on September 16, 2013, is a death penalty sanctions order. It precludes any
defense of Rothenberg’s claim for the initial $57,999.63 in attorney’s fees, and renders
judgment in favor of Rothenberg in that amount.
Primo argues that the trial court abused its discretion by imposing “manifestly
unjust and excessive sanctions” against him without first considering or testing lesser
sanctions. Primo argues that death penalty sanctions were not warranted because the
trial court signed only one order to compel discovery before imposing death penalty
sanctions. Primo further contends that there is no evidence of a “history of chronic non-
compliance,” bad faith, or “flagrant disregard for the responsibilities of discovery under
the rules.” According to Primo, he timely supplemented discovery requests “within a
short time and before the discovery deadline.”
Primo also contends that Rothenberg did not incur monetary expenses or suffer
prejudice from Primo’s failure to produce the indemnity trial transcript or other
discovery. Primo contends that Rothenberg (1) did not seek a continuance in order to
remedy the alleged disadvantage caused by delay in producing the reporter’s record
from the indemnity trial; (2) never named an expert who declined to serve as an expert
because of the transcript delay; (3) made “no assertion that his own designation [as
expert] is inferior;” and (4) had superior knowledge of the indemnity trial because he
represented Primo at trial. Primo notes that the docket control order does not contain a
40
deadline for challenging experts; either party could have challenged an expert any time
before trial.
Rothenberg responds that Primo failed to attack findings of fact 51 and 52 of the
May 22, 2013 order; the trial court found that Primo improperly withheld the indemnity
trial reporter’s record until after the expert witness deadline expired on April 16, 2013,
and that this delay was a deliberate act by Primo to force “Rothenberg to the choice of
going to trial not fully prepared, or requesting a trial continuance, which Rothenberg has
opposed in this case.” He further argues that the evidence in this case supports the trial
court’s finding that “Primo’s hindrance of the discovery process was so multifarious, so
persistent and so determined as to warrant the presumption that [Primo]’s claims had no
merit; otherwise he would have fully responded to discovery.” Rothenberg contends
that the unreliable and conclusory nature of Primo’s expert report further warrants a
finding that Primo’s claims and defenses lacked merit.
According to Rothenberg, the “case dispositive sanctions issued by the trial court
fit Primo’s improper pattern of conduct and were not excessive” because, without timely
responses to the court-ordered pretrial discovery, “it was impossible” for Rothenberg to
prepare his causes of action and defenses to Primo’s counterclaims on a timely basis.
Rothenberg further argues that Primo never fully supplemented his discovery responses
as ordered, and a belated supplementation after the expiration of Rothenberg’s expert
witness designation deadline was insufficient to undo the prejudice caused by Primo’s
failure to timely respond to discovery requests.
We do not condone Primo’s conduct or suggest it was an abuse of discretion to
conclude that Primo’s conduct warranted sanctions. We nonetheless conclude that the
trial court’s imposition of death penalty sanctions in the first instance, and without first
considering or testing lesser sanctions, constituted an abuse of discretion under the
circumstances present here.
41
The trial court granted Rothenberg’s motion to compel after Primo did not fully
answer all discovery requests, and ordered Primo to fully answer interrogatories and
requests for production by February 15, 2013. In his first supplemental responses to
Rothenberg’s first discovery request filed on February 15, 2013, Primo (1) provided
detailed answers to Rothenberg’s Interrogatories Nos. 1, 3, and 6 through 12; (2)
responded to Interrogatory No. 2 that he had not pleaded a DTPA claim yet; (3)
responded to Interrogatory No. 5 that he intended to file a grievance against Rothenberg
with the State Bar of Texas and listed several ethics rules he believed Rothenberg
violated; (4) responded to Interrogatory No. 13 that he “will designate expert(s) when
their review is complete and report made available and the expert made available for
discovery;” and (5) responded to Rothenberg’s eight requests for production by
providing an internet address for an “uploaded file.”
At a March 11, 2013 hearing, the trial court orally ordered Primo to produce the
indemnity trial reporter’s record to Rothenberg by March 31, 2013. Primo did not
produce the record as ordered; it was not provided until May 6, 2013. To Rothenberg’s
second set of interrogatories and second request for production, Primo responded by
objecting to the three interrogatories as being excessive in number and by objecting to
the indemnity trial record request on the ground that the record is the court reporter’s
work product that is “easily available” from the court reporter.
No monetary sanctions were requested. Instead, Rothenberg filed a motion for
death penalty sanctions or, alternatively, a motion to compel on May 3, 2013. Primo
responded to Rothenberg’s motion and attached two exhibits to his response on May 10,
2013. One exhibit contained Primo’s second supplemental responses to Interrogatory
No. 2 and No. 13 to Rothenberg’s first set of interrogatories. The other exhibit
contained supplemental responses to Rothenberg’s second request for production, in
which Primo claimed he produced all documents he referenced in his supplemental
42
responses, and produced the indemnity trial reporter’s record. Primo previously
attached the indemnity trial reporter’s record as part of his no-evidence summary
judgment response on May 6, 2013.
During the hearing on Rothenberg’s death penalty sanctions motion, the trial
court did not consider imposing lesser sanctions or indicate why lesser sanctions would
not be effective to secure Primo’s compliance with discovery requests, deter further
non-compliance with discovery requests, and punish Primo. In its May 22, 2013 death
penalty sanctions order, the trial court did not explain why lesser sanctions against
Primo would have been ineffective and did not indicate that the court considered
imposition of lesser sanctions before imposing the most severe sanctions. See Cire, 134
S.W.3d at 842; Tanner, 856 S.W.2d at 729.
The trial court’s May 22, 2013 order states that Primo committed discovery abuse
when he (1) made frivolous objections to three interrogatories in Rothenberg’s second
set of interrogatories on the ground that the number of interrogatories was excessive,
and objected to producing the indemnity trial record because the record was the court
reporter’s work product and was “easily available from” the court reporter; (2) did not
produce documents in written form in response to Rothenberg’s first eight requests for
production, and instead provided an internet address at which Rothenberg could access
the stored documents, because “this form of responding to a request for production is
not authorized by the Texas Rules of Civil Procedure;” (3) responded to Interrogatory
No. 13 that he “will designate expert(s) when their review is complete and report made
available” because this response was not complete and specific; (4) failed to timely
supplement his response to Interrogatory No. 2 in Rothenberg’s first set of
interrogatories after he pleaded a DTPA claim on April 1, 2013; (5) responded to
Interrogatory No. 5 that he intended to file a grievance against Rothenberg because this
response does not “provide factual information sought” in Interrogatory No. 5; and (6)
43
“improperly withheld” the indemnity trial reporter’s record “until after the April 16,
2013 expiration of Rothenberg’s expert witness designation deadline” because “Primo’s
refusal to produce the [] record was a deliberate act on his part designed to put
Rothenberg to the choice of going to trial not fully prepared, or requesting a trial
continuance, which Rothenberg has opposed in this case.”
The trial court’s order also states that the “most egregious” of Primo’s abuses was
the withholding of the indemnity trial record until May 6, 2013, which denied
Rothenberg the opportunity to “review the materials that Primo’s testifying expert
witness reviewed in formulating his opinions in this case;” “to do a full Daubert
challenge to the relevance and reliability of Primo’s testifying expert witnesses
opinions;” and “to timely designate one or more expert witnesses.”
The trial court did not consider lesser sanctions before imposing death penalty
sanctions. See Cire, 134 S.W.3d at 842; Tanner, 856 S.W.2d at 729. A variety of lesser
sanctions were available to secure Primo’s compliance with discovery requests; deter
him from further non-compliance; punish him for past non-compliance; and, most
importantly, remedy any prejudice caused to Rothenberg because of Primo’s non-
compliance. See Tex. R. Civ. P. 215.2. Rothenberg has not cited any case in which
conduct similar to Primo’s was found to warrant imposition of death penalty sanctions
without first considering or testing lesser sanctions. We have located no such case
through our own research.
The result here is not changed by the additional findings of fact and conclusions
of law contained in the September 16, 2013 order.
In the September 16, 2013 order, the trial court found that Primo (1) had
possession of attorney John Irvine’s deposition transcript and video for several weeks
but failed to produce it after Rothenberg requested production in June and July 2013
because he knew that Irvine’s testimony was damaging to his “groundless” allegations
44
against Rothenberg; (2) made false representations to the court at an August 19, 2013
hearing; and (3) demonstrated contempt for the trial court.
The September 16, 2013 order concludes that (1) Primo’s wrongful conduct
before and after the imposition of death penalty sanctions on May 22, 2013, is
“sufficient to convince the Court that no lesser sanction than a case dispositive sanction
would have been sufficient to obtain” Primo’s compliance with pretrial discovery rules;
and (2) Primo’s conduct after the imposition of death penalty sanctions “further
establishes that lesser sanctions would have been ineffective in obtaining . . . Primo’s
compliance with the Texas Rules of Civil Procedure” and the trial court’s discovery
orders. The trial court reaffirms its May 22, 2013 order, and states that it is “necessary
and proper,” “complies with due process,” and “shall stand without any change
whatsoever.”
We conclude that the September 16, 2013 order does not remedy the failure to
consider lesser sanctions as reflected in the May 22, 2013 order. The compliance,
deterrence, and punishment rationales that undergird discovery sanctions are not
promoted by a procedure that allows death penalty sanctions to be levied because the
sanctioned litigant failed to cooperate after death penalty sanctions were levied. See
Chrysler, 841 S.W.2d at 849. Re-hanging an already-hung litigant does not fix
procedural flaws preceding the first trip to the gallows and does not comply with
TransAmerican. See TransAmerican, 811 S.W.2d at 917-18.
Like its predecessor, the September 16, 2013 order fails to effectively “analyze
the available sanctions and offer a reasoned explanation as to the appropriateness of the
sanction imposed” as required before imposing the most severe sanctions possible. See
Cire, 134 S.W.3d at 840.
Based on our review of the record, we conclude that Primo’s inappropriate
conduct does not make this an exceptional case in which death penalty sanctions are
45
justified in the first instance. See Spohn Hosp., 104 S.W.3d at 882. We conclude that
the trial court abused its discretion by assessing death penalty sanctions as an initial
sanction without appropriately considering or testing lesser sanctions. Even when the
record reflects intentional discovery abuse, as it does here, the trial court is still required
to explain that it considered lesser sanctions before imposing sanctions precluding a
party’s ability to present the merits of its claims.
Unlike Cire, the circumstances here do not involve the deliberate destruction of
dispositive evidence. See Cire, 134 S.W.3d at 840-42 (“This is an exceptional case
where it is fully apparent and documented that no lesser sanctions would promote
compliance with the discovery rules, and the trial court did not abuse its discretion in
striking [party]’s pleadings.”). The circumstances here more closely track cases in
which death penalty sanctions were inappropriate because lesser sanctions were not first
considered or tested. See Spohn Hosp., 104 S.W.3d at 882 (trial court’s sanctions were
unjust and excessive because “the record is silent regarding the consideration and
effectiveness of less stringent sanctions”); Tanner, 856 S.W.2d at 729 (“[t]he record
must reflect that the court considered the availability of lesser sanctions” and “the order
which the district court signed stated that lesser sanctions would have been ineffective,
but the court did not explain why and the record does not indicate why”); Chrysler
Corp., 841 S.W.2d at 849 (“a court must consider relatively less stringent sanctions first
to determine whether lesser sanctions will fully promote compliance, deterrence, and
discourage further abuse”); TransAmerican, 811 S.W.2d at 917 (death penalty sanctions
excessive where “there is nothing in the record to indicate that the district court
considered imposition of lesser sanctions or that such sanctions would not have been
effective”).7
7
See also Khan v. Valliani, 439 S.W.3d 528, 535-36 (Tex. App.—Houston [14th Dist.] 2014, no
pet.) (although Khan had several months to pay $400 as ordered by the trial court to compensate
Valliani for having to prosecute a motion to compel and although “she had been warned at least once
46
We sustain Primo’s first issue and reverse the trial court’s grant of death penalty
sanctions against Primo. 8
Appeal in Cause No. 14-13-00997-CV
We now address whether the trial court properly granted traditional summary
judgment in favor of Rothenberg on his claim to recover additional attorney’s fees
incurred in litigating his entitlement to the initial $57,999.63 fee.
about the failure to do so, we cannot say that her behavior, even if done in flagrant bad faith warrants
the severest of civil sanctions;” imposing death penalty sanctions was an abuse of discretion and the
trial court “should have considered lesser sanctions, such as abating the case until the fee was paid, or
including payment of the fee in a final judgment”); Shops at Legacy (Inland) Ltd. v. Fine Autographs
& Memorabilia Retails Stores, Inc., 418 S.W.3d 229, 235 (Tex. App.—Dallas 2013, no pet.) (“Without
considering the merits of the allegedly sanctionable actions, we conclude the trial court erred when it
assessed ‘death penalty’ sanctions against The Shops at Legacy because the record does not show the
trial court considered and analyzed the availability of less stringent sanctions and whether such
sanctions would fully promote compliance.”); In re M.J.M., 406 S.W.3d 292, 298 (Tex. App.—San
Antonio 2013, no pet.) (despite litigant’s “intentional and blatant” abuse of the discovery process for
several months, the trial court abused its discretion by imposing death penalty sanctions without first
testing or considering less stringent sanctions before imposing death penalty sanctions); Gunn v.
Fuqua, 397 S.W.3d 358, 375 (Tex. App.—Dallas 2013, pet. denied) (trial court abused its discretion in
imposing death penalty sanctions without considering less stringent sanctions despite evidence of
litigant’s dilatoriness in failing to designate experts, produce expert reports, and comply with
scheduling orders); Citibank, N.A. v. Estes, 385 S.W.3d 671, 676-77 (Tex. App.—Houston [14th Dist.]
2012, no pet.) (“The assessment of death penalty sanctions as an initial sanction, without explanation,
is excessive.”); Mendez v. Sweeny Cmty. Hosp., No. 14-02-00843-CV, 2003 WL 21192136, at *3 (Tex.
App.—Houston [14th Dist.] May 22, 2003, no pet.) (mem. op.) (death penalty sanction was excessive
and trial court should have imposed a lesser sanction to address litigant’s failure to answer questions in
deposition and failure to respond to discovery requests after the trial court’s oral order to comply); In
re Harvest Communities of Houston, Inc., 88 S.W.3d 343, 349 (Tex. App.—San Antonio 2002, orig.
proceeding) (conditionally granting mandamus relief where trial court failed to adequately consider
lesser sanctions before imposing death penalty sanctions for discovery abuse).
8
In the “Issues Presented” section of his brief, Primo states as his fourth issue the following
argument: “The trial judge abused [its] discretion to issue irrelevant findings of facts and conclusions
of law on pleadings from other unadjudicated lawsuits not germane to the underlying case for legal
malpractice. Such lawsuits were three generation levels removed from the underlying case, and never
presented to a trier-of-fact in the underlying case or any other case.” Primo discusses this argument as
one of his sub-issues within his first issue. In light of our disposition of the first issue, we need not
address Primo’s fourth issue separately.
47
Primo states in his brief: “As the underlying judgment is an award of attorney’s
fees for contract claims from that Severed Case[,] [i]n addition to all the defects in the
underlying case itself, reversal of that improper adjudication in the Severed Case, on
appeal in this Court, Cause No. 14-13-00794-CV, will also void the judgment in the
underlying case, as without prevailing on the contract claim, there is no basis for award
of attorney’s fees.”
Primo argues that the trial court erred by granting summary judgment because (1)
the amount of additional attorney’s fees should not have been adjudicated on summary
judgment but through an evidentiary hearing; (2) Primo’s expert affidavit raised a
genuine issue of material fact that Rothenberg’s fees are unreasonable and unnecessary,
and Rothenberg is not a credible witness; (3) Rothenberg failed to segregate his fees; (4)
a “claim for attorney’s fees cannot be maintained independently in a separate lawsuit
from the main claim for breach of contract/sworn account;” (5) Rothenberg failed to
satisfy Civil Practice and Remedies Code section 38.001 to recover attorney’s fees; (6)
Rothenberg “forfeited his claim for attorney’s fees in the underlying case” when he
sought severance of his contract claim because the claim for attorney’s fees cannot be
independently maintained; (7) “Res Judicata bars Rothenberg’s claim for attorney’s fees
in the underlying case;” and (8) there were no procedural defects in Primo’s summary
judgment evidence.
We need not address Primo’s numerous challenges to this ruling because the trial
court’s traditional summary judgment awarding additional attorney’s fees incurred in
pursuing the initial $57,999.63 fee cannot stand in light of our reversal of the trial
court’s imposition of death penalty sanctions against Primo. 9
9
We express no opinion regarding the propriety of seeking additional attorney’s fees in the
original trial court cause number after the underlying breach of contract claim was severed on June 10,
2013.
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Rothenberg argued in his motion for traditional summary judgment that (1) the
trial court’s May 22, 2013 order and interlocutory judgment imposed death penalty
sanctions against Primo and awarded Rothenberg $57,999.63 for his fee agreement
claim against Primo; (2) the trial court “severed its interlocutory judgment in the amount
of $57,999,63” on June 10, 2013, leaving as the only remaining issue “the amount of
attorney’s fees to be awarded to Scott Rothenberg for handling the prosecution and
defense of all claims, demands and causes of action” in the lawsuit; and (3) Rothenberg
was entitled to $148,100 in reasonable attorney’s fees from Primo pursuant to Chapter
38 of the Texas Civil Practice & Remedies Code “for professional legal services
performed in the trial court and in the courts of appeals up through October 2, 2013.”
The trial court signed an order granting Rothenberg’s traditional summary judgment
motion on November 5, 2013.
Chapter 38 allows a prevailing party to recover reasonable attorney’s fees in
addition to the amount of a valid claim and costs if the claim is for a sworn account or
an oral or written contract. See Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (7), (8)
(Vernon 2008). “To recover attorney’s fees under this statute, a party must first prevail
on the underlying claim and recover damages.” In re Nalle Plastics Family Ltd., 406
S.W.3d 168, 173 (Tex. 2013) (emphasis in original).
The basis identified for entitlement to the underlying fees was the May 22, 2013
sanctions order. With the reversal of the death penalty sanctions and the underlying fee
award of $57,999.63 as set out in the May 22, 2013 order, neither of these two prongs is
satisfied. Accordingly, the trial court’s traditional summary judgment in favor of
Rothenberg also must be reversed.
CONCLUSION
In cause number 14-13-00794-CV, we affirm the trial court’s judgment in part
with respect to the trial court’s grant of a no-evidence summary judgment. We reverse
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the trial court’s judgment in part with respect to the trial court’s imposition of death
penalty sanctions. We remand for further proceedings not inconsistent with this court’s
opinion.
In cause number 14-13-00997-CV, we reverse the trial court’s judgment with
respect to Rothenberg’s claim for additional attorney’s fees incurred in litigating the
initial $57,999.63 fee dispute as reflected in the “Final Judgment.” We remand for
further proceedings not inconsistent with this court’s opinion.
/s/ William J. Boyce
Justice
Panel consists of Justices Boyce, Jamison and Donovan.
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