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DISSENTING OPINION
No. 04-07-00465-CV
UNIFUND CCR PARTNERS,
Appellant
v.
Javier VILLA,
Appellee
From the 111th Judicial District Court, Webb County, Texas
Trial Court No. 2006CVF001343-D2
Honorable Raul Vasquez, Judge Presiding
Opinion by: Catherine Stone, Justice
Dissenting opinion by: Sandee Bryan Marion, Justice
Dissenting opinion by: Rebecca Simmons, Justice
Sitting: Alma L. López, Chief Justice
Catherine Stone, Justice
Karen Angelini, Justice
Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Rebecca Simmons, Justice
Steven C. Hilbig, Justice
Delivered and Filed: September 17, 2008
I must respectfully dissent because I believe the $18,685 in sanctions assessed against
Unifund was excessive. Also, I disagree with the court’s consideration of this case en banc.
En banc consideration of a case is not favored and should not be ordered unless necessary
to secure or maintain uniformity of a court’s decisions or unless extraordinary circumstances require
en banc consideration. TEX. R. APP P. 41.2(c). The standard for en banc consideration is not
04-07-00465-CV
whether a majority of the en banc court disagrees with all or a part of a panel opinion. See
Rodriguez v. Cuellar, 143 S.W.3d 251, 265 (Tex. App.—San Antonio 2004, pet. dismissed) (López,
C.J., dissenting). Rather, when there is no conflict among panel decisions, the existence of
“extraordinary circumstances” is required before en banc consideration may be ordered. TEX. R.
APP. P. 41.2(c). Here, Villa’s sole reason for seeking en banc review is “the majority failed to apply
[the abuse of discretion standard].” Villa’s basis for this argument is that the panel opinion used the
phrase “the trial court erred” rather than “the trial court abused its discretion.” Villa does not
explain how the panel departed from the abuse of discretion standard, and the Villas’ only basis for
requesting en banc review is to “maintain uniformity of th[is] Court’s decisions.” However, the
Fourth Court of Appeals cases cited by Villa for this contention merely reflect a different outcome
based on the individual facts presented in each unique case. I do not believe en banc consideration
in this case is “necessary” to maintain uniformity with prior Fourth Court of Appeals decisions. Nor
do I think the panel’s limited holding that the amount of sanctions imposed was excessive is an
“extraordinary circumstance” that “requires” en banc consideration. Here, the other members of this
court disagree with the panel’s decision, but because that is not the standard for en banc
consideration, I voted to deny the motion for rehearing en banc.
As to whether the $18,685 in sanctions was excessive, we review a trial court’s assessment
of a sanction for an abuse of discretion. Low v. Henry, 221 S.W.3d 609, 619 (Tex. 2007). Merely
because a trial court may decide a matter within its discretion in a different manner than an appellate
court would in a similar circumstance does not demonstrate that an abuse of discretion has occurred.
Id. However, in appropriate cases, the sufficiency of the evidence is a relevant factor in assessing
whether the trial court abused its discretion. Beaumont Bank v. Buller, 806 S.W.2d 223, 226 (Tex.
1991); Gardner v. Gardner, 229 S.W.3d 747, 751 (Tex. App.—San Antonio 2007, no pet.).
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Here, the trial court assessed sanctions pursuant to Civil Practice and Remedies Code section
10.002(c), finding that the $18,685 in sanctions “shall encompass Villa’s costs for inconvenience
and harassment caused by the subject litigation . . . .” The only evidence concerning harassment was
Mr. Villa’s testimony that he did not have any information that Unifund “did this just to harass [him]
. . . .” As for inconvenience, Mr. Villa testified, without elaboration, that he was “worried,” and
Mrs. Villa testified she “got very upset,” “started worrying,” and “started yelling at [Mr. Villa].”
Based on this record, I do not believe the trial court had sufficient evidence upon which to exercise
its discretion to award $18,685 for Villa’s “inconvenience and harassment caused by the subject
litigation.” See Gardner, 229 S.W.3d at 751.
The majority states the trial court “was informed that Unifund had over a billion dollars in
assets” and “[e]vidence was presented that Unifund had eighty-four operating cases in Webb County
alone.” However, the trial court’s order does not indicate the $18,685 in sanctions was for the
purpose of deterring conduct, nor is there evidence in the record to support such a finding. Villa’s
attorney asked the court to enter sanctions against Unifund and/or Unifund’s attorneys, stating in
his argument that Unifund had over a billion dollars in assets and eighty-four operating cases in
Webb County. Counsel did not define the nature of the eighty-four “operating” cases. Thus,
nothing in the record supports any implied finding that Unifund has a history of filing lawsuits for
“any improper purpose,” that Unifund will continue to file lawsuits for “any improper purpose,” or
that “others similarly situated” file lawsuits for “any improper purpose.”
The test for abuse of discretion is whether the trial court acted without reference to any
guiding rules and principles, or equivalently, whether under all the circumstances of the particular
case the trial court’s action was arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 241-42 (Tex. 1985). Although I do not disagree with the majority’s conclusion
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that Unifund should be sanctioned in the amount of $2,871 for Villa’s out-of-pocket attorney’s fees
and expenses, I cannot, on this record and under all the circumstances of this case, agree with the
majority’s conclusion that the trial court did not err in assessing an $18,685 sanction for Villa’s
“inconvenience and harassment.” Therefore, I respectfully dissent.
Sandee Bryan Marion, Justice
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Unifund CCR Partners v. Javier Villa
Combined Opinion