Aquarium Environments, Inc. and R.J. Blue v. Victor S. Elgohary

Opinion issued May 1, 2014.

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-12-01169-CV
———————————
AQUARIUM ENVIRONMENTS, INC. AND R.J. BLUE, Appellants
V.
VICTOR S. ELGOHARY, Appellee

On Appeal from the 189th District Court
Harris County, Texas
Trial Court Case No. 2011-52458

MEMORANDUM OPINION

In this appeal after a jury verdict in a consumer services case, appellant

contends the trial court erred by (1) submitting appellees’ implied warranty DTPA

claim to the jury; (2) excluding the testimony of two of appellant’s fact witnesses;
(3) imposing post-verdict sanctions against appellant and its counsel; and (4)

holding appellant’s counsel in contempt of court and imposing contempt fines. We

vacate the sanctions order, reverse and render a take nothing judgment on

appellee’s claim for sanctions, dismiss the complaints related to contempt, and

affirm the remaining portions of the judgment.

BACKGROUND

Factual Background

Appellee, Victory Elgohary, designed and built a 320-gallon salt water

aquarium for his home. The tank is four feet wide, four feet long, and once placed

on its base cabinet, stands ten feet tall. Elgohary spent $30,000 building the

aquarium, which was then stocked with tropical fish and coral.

Appellant, Aquarium Environments, Inc., which does business under the

name The Fish Gallery, sells aquariums, supplies, fish, and coral. It also services

aquariums for private individuals and businesses.

In June 2011, while Elgohary was on vacation, he received an electronic

notification that his aquarium was overheating. Elgohary called his neighbor,

Mitchell Randolph, and asked him to go next door and check on the aquarium.

Randolph, who had a key to Elgohary’s home, went next door and for the next two

days communicated with Elgohary about the condition of the aquarium and the

2
fish. After a couple of days, Randolph reported to Elgohary that most of the coral

and fish had died.

Elgohary then called Aquarium Environments, from whom he had purchased

supplies, fish, and coral in the past, about going to his home to remove the dead

livestock, which included the coral and fish. Elgohary talked to Jaime DePujadas,

the general manager, and the two agreed that Aquarium Environments would send

employees to Elgohary’s home to perform a partial water change and remove the

dead animals. Elgohary and DePujadas agreed that Elgohary would pay the

company for the time of its employees and the material used.

Aquarium Environments sent two employees, Chris Ordeneaux and Kenton

Luff, to Elgohary’s home. Randolph met them there and let them in. Randolph

then watched as Ordeneaux and Luff removed the dead animals. Randolph

testified that Orderneaux removed the dead coral by pressing each piece of coral

against the side of the acrylic tank for leverage and dragging it near the top with a

long-handled scraper, and then reaching in to pull the coral from the top of the

aquarium.

Randolph told Ordeneaux that he was concerned that this method of

removing the coral would damage Elgohary’s tank, so he offered to go get a longer

ladder for Ordeneax. Ordeneaux refused the offer, but Randolph went to get the

3
ladder anyway. Ordeneaux continued removing the coral by dragging it up the

side of the tank.

When Elgohary returned from vacation, he noticed that the interior surfaces

of his aquarium were scratched. He testified that he had caused one of the “dings”

noticed on the tank’s interior when he installed it, but that the long “scratches”

were not there before Aquarium Environments serviced the tank.

Procedural Background

Elgohary filed suit alleging breach of contract, violations of the Texas

Deceptive Trade Practices Act [“DTPA”], negligence, and breach of a settlement

agreement pursuant to which Aquarium Environments would repair the aquarium

in return for Elgohary not filing suit.

Before trial, Elgohary requested that the trial court sever his claim based on

the alleged breach of a settlement agreement. The trial court also granted

Elgohary’s motion in limine to prevent two Aquarium Environments employees

from testifying because they never appeared for depositions.

After a two-day trial, the trial court submitted the case to a jury. The jury

found in favor of Elgohary on all three liability questions submitted: DTPA breach

of warranty, breach of conract, and negligence. The jury awarded $6,538.39 in

actual damages, plus attorney’s fees of $15,000 and conditional attorney’s fees on

appeal of $5,000.

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 At Elgohary’s request, the trial court rejoined and then nonsuited Elgohary’s

claim for breach of a settlement agreement. The trial court also signed a judgment

in Elgohary’s favor in accordance with the jury’s verdict.

Elgohary then moved to amend the judgment to add sanctions against

Aquarium Environments and its counsel, R.J. Blue. He attached evidence to his

motion. The trial court held a hearing on January 11, 2013, but reset it for a later

date when Aquarium Environments requested a full evidentiary hearing.

On March 1, 2013, the trial court held an evidentiary hearing on Elgohary’s

request for post-judgment sanctions, and later signed a sanctions order and an

amended final judgment that included sanctions. At the sanctions hearing, the trial

court also held Blue in contempt of court and assessed a fine of $500.

Aquarium Environments filed a motion to modify the final judgment, which

the trial court did, signing an amended sanctions order and a second amended final

judgment.

Aquarium Environments then sought to file a formal bill of exceptions. At a

hearing related thereto, the trial court held Aquarium Environments’ counsel, Blue,

in contempt of court and assessed a fine of $1,000, which it later reduced to $200

after Blue spent time in custody.

This appeal followed.

5
 SUBMISSION OF DTPA CLAIM

In its first issue on appeal, Aquarium Environments contends “[t]he trial

court erred by submitting Appellee’s implied warranty DTPA claims to the jury.”

The jury charge contained three separate questions on Aquarium Environment’s

liability: the first question asked the jury to find whether Aquarium Environment

violated the DTPA by failing to comply with a warranty to perform its services in a

good and workmanlike manner; the second question asked whether it had breached

its contract with Elgohary; and the third question asked whether Aquarium

Environments was negligent. The jury was then instructed to award damages to

Elgohary if it made an affirmative finding on any one of these three questions. The

jury was then asked to award attorney’s fees if it answered affirmatively to either

the DTPA or breach of contract questions. The jury answered all three liability

questions affirmatively, finding that Aquarium Environments failed to comply with

a warranty under the DTPA, breached its contract with Elgohary, and was

negligent in damaging Elgohary’s aquarium.

If an independent ground fully supports the complained-of judgment, but an

appellant assigns no error to that independent ground, then we must accept the

validity of the unchallenged independent ground and, thus, any error in another

ground challenged on appeal is harmless. Britton v. Tex. Dep’t of Criminal

Justice, 95 S.W.3d 676, 682 (Tex. App.—Houston [1st Dist.] 2002, no

6
pet.); Harris v. Gen. Motors Corp., 924 S.W.2d 187, 188 (Tex. App.—San

Antonio 1996, writ denied). The rule requiring an appellant to attack all

independent grounds supporting a judgment has been applied in many contexts,

including independent jury findings fully supporting a trial court’s

judgment. See Britton, 95 S.W.3d at 682 (stating that “appellant must attack each

independent jury finding to obtain a reversal”). Although Aquarium Environments

has challenged the jury’s finding that it had failed to comply with an implied

warranty under the DTPA, it has not asserted any challenge to the jury’s separate

affirmative finding to the breach of contract question. Because the jury answered

both liability questions affirmatively, and because the jury charge was structured to

allow the jury to award damages and attorney’s fees based upon an affirmative

finding to either of these liability questions, the trial court’s award of actual

damages in favor of Elgohary can be upheld by the jury’s liability findings on

either the breach of contract or warranty questions. Because Aquarium

Environments does not challenge the jury’s affirmative finding on the breach of

contract question, which is an independent ground supporting liability and

damages, we hold that any error by the trial court in submitting the DTPA implied

warranty question is harmless.

Accordingly, we overrule Aquarium Environments’ first issue on appeal.

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 EXCLUSION OF TESTIMONY

In its second issue on appeal, Aquarium Environments contends the “trial

court abused its discretion by excluding the testimony of Appellant’s fact witnesses

during trial.” Specifically, Aquarium Environments contends that the trial court

erred by refusing to permit Ordeneaux and Luff from testifying, and that such

exclusion was, in effect, a death penalty sanction because those were the only two

witnesses from Aquarium Environments who were present when the tank was

cleaned. Elgohary responds that the exclusion of Ordeneaux and Luff was a proper

discovery sanction as a result of their failure to appear for a deposition after being

ordered to do so.

Factual Background

On July 5, 2012, Ordeneaux and Luff failed to appear for their properly

noticed depositions. Elgohary filed a Motion to Compel Deposition and for

Sanctions, and on October 19, 2012, the trial court granted the motion to compel,

but denied sanctions at that time. Instead, the trial court granted Aquarium

Environments additional time to complete discovery in order to allow it another

opportunity to produce Ordeneaux and Luff for deposition. The trial court warned

Aquarium Environments that if it failed to produce Ordeneaux and Luff for

deposition, the trial court would not permit them to testify at trial.

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 On November 21, 2012, shortly before trial, Elgohary filed a motion in

limine to prohibit Aquarium Environments from addressing or mentioning in front

of the jury any testimony by Ordeneaux and Luff because Aquarium Environments

had still not made them available for depositions. The trial court granted

Elgohary’s motion, and the following exchange took place:

[Trial Court]: I’m assuming they got some kind of excuse for [failing
to appear at their initially noticed depositions]; but, Counsel, I think
you left out one important fact in your review of the motions, that was
when y’all came down here on that Motion for Sanctions and you
asked for the continuance. I said, okay, I’ll give you a continuance
but since you had arranged for those gentlemen they were enough
under your control to work out—that you had arranged to have them
come there and they were former employees of your client. I made
crystal clear to you that if you wanted them to testify you need to
make them available for deposition; and I didn’t put it on the Plaintiff
to notice them again and have you arrange, you know, to try to get
them again. They had done that once. You had said you were going
to produce them and they didn’t show. So I made crystal clear to you
that if you wanted to bring them to testify at trial, you were going to
have to produce them for deposition and that meant you were going to
have to take the initiative and say, here they are; they’re ready to be
deposed; when do you want them; and if they didn’t go forward then,
that would be at their risk.

[Defense Counsel]: You won’t hear anything from me. You’re right.
I don’t want to make the mistake of communicating this, but there’s
nothing I want you to interpret as me saying I can’t control these guys.

[Trial Court]: You clearly can because you brought them here to trial.

[Defense Counsel]: Right.

[Trial Court]: And I made clear to you that day that if you wanted
them to testify at trial you needed to produce them for deposition.
You did not do that so they are not going to testify at trial. If that
9
 means we have to do this again, so be it; but I’m not going to let you
ignore the specific ruling that I made about how to deal with this
problem and then come in on the last day and have them testify
without having made them available for deposition. It’s not fair to the
Plaintiff. They did what they could to get the deposition, and I’m not
going to make them keep begging you to get these folks to produce
them. I made clear after you had told me the first time that you
thought they were going to be there and they just didn’t show that you
needed to get them there if you wanted them to testify; and I don’t
think there’s any doubt in your mind that that was the effect of my
ruling. It wasn’t that the Plaintiff had to keep beating on you to get
them.

****

So you needed to take the initiative to reschedule them. I’m sorry,
Mr. Blue, but that’s fair and there’s nothing unfair about what I’m
doing. If you all want to reconsider you position on all this in light of
that, fine; but I’m happy to let the Court of Appeals decide whether I
am justified in imposing this sanction. You had witnesses under your
control who did not show up. You never offered to make them
available again; and in that case, I’m not going to let them testify.

[Defense Counsel]: It’s totally fair. I just wanted to get a record of
that and lacking consideration of a less severe sanction for the death
penalty.

Standard of Review and Applicable Law

We review a trial court’s decision with regard to discovery matters for abuse

of discretion. Wigfall v. Tex. Dep’t of Criminal Justice, 137 S.W.3d 268, 272 (Tex.

App.—Houston [1st Dist.] 2004, no pet.). A trial court abuses its discretion if a

decision is so arbitrary and unreasonable as to amount to a clear and prejudicial

error of law. Wheeler v. Methodist Hosp., 95 S.W.3d 628, 644 (Tex. App.—

Houston [1st Dist.] 2002, no pet.).
10
 If a person designated to testify on behalf of a party fails to comply with

proper discovery requests, a trial court may make an order prohibiting the

disobedient party from introducing designated matters into evidence. TEX. R. CIV.

P. 215.2(b)(4). Nevertheless, sanctions imposed under Rule 215 must be just under

the circumstances. In re Ford Motor Co., 988 S.W.2d 714, 718 (Tex. 1998). We

consider two factors when determining whether a trial court abused its discretion

by ordering an unjust sanction. Id.; In re Supportkids, Inc., 124 S.W.3d 804, 807

(Tex. App.—Houston [1st Dist.] 2003, orig. proceeding). First, we determine

whether a direct relationship exists between the offensive conduct and the

sanctions. Ford, 988 S.W.2d at 718; Supportkids, 124 S.W.3d at 807. Second, we

consider whether the trial court ordered an excessive sanction. Ford, 988 S.W.2d at

718; Supportkids, 124 S.W.3d at 807. A sanction imposed for discovery abuse

should be no more severe than necessary to satisfy its legitimate purpose.

TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991). A

trial court must take into account the availability of less stringent sanctions and

whether such sanctions would fully promote compliance. Id.

Analysis

In the present case, the sanctions ordered by the trial court were directly

related to the offensive conduct, i.e., the failure to produce Ordeneaux and Luff for

deposition. A just sanction must be directed against the abuse and toward

11
remedying the prejudice suffered by the innocent party. Id. Here, by prohibiting

Ordeneaux and Luff from testifying at trial, the trial court directed its order at the

abuse and prevented the prejudice that would have been caused by Elgohary’s

having to prepare for trial without the benefit of information he would have gained

through his properly noticed depositions.

And, the trial court’s order cannot be regarded as an excessive sanction.

After Ordeneaux and Luff failed to appear for their properly noticed depositions,

the trial court granted Elgohary’s motion to compel their appearance, but also

granted Aquarium Environments’ additional discovery time so that it could make

Ordeneaux and Luff available to Elgohary for deposition. As such, the record

shows that the trial court did, in fact, attempt a lesser sanction before excluding

Ordeneaux’s and Luff’s testimony at trial. Only when the trial court’s order did

not produce compliance by Aquarium Environments did the trial court take the

next step in excluding Ordeneaux’s and Luff’s testimony at trial. As such, the trial

court did not abuse its discretion in prohibiting Ordeneaux and Luff from testifying

at trial. See Adams v. Allstate County Mut. Ins. Co., 199 S.W.3d 509, 513–14

(Tex. App.—Houston [1st Dist.] 2006, pet. denied) (holding trial court’s discovery

sanction excluding witness’s affidavit not an abuse of discretion after witness

evaded service to avoid deposition).

Accordingly, we overrule Aquarium Environments’ second issue on appeal.

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 POST-JUDGMENT SANCTIONS

In their third issue on appeal, Aquarium Environments and its counsel, R.J.

Blue, contend “the trial court abused its discretion by awarding post-judgment

sanctions of $30,000 against Appellant and Appellant’s counsel.”

Factual Background

After final judgment was signed, Elgohary filed its Second Motion for

Sanctions seeking monetary sanctions against Aquarium Environments and its

attorney R.J. Blue “for overall conduct in this case and also asks the court to

modify the judgment this case to include and conform to the sanctions order.”

Specifically, Elgohary argued that the following pleadings were filed in violation

of the above-referenced rules: (1) a motion for no evidence summary judgment; (2)

a motion in opposition to mediation; (3) a first amended answer and counterclaim;

(4) a motion for continuance; and (5) two motions to quash.

The trial court held a hearing on the motion for sanctions on January 11, 2013.

At that hearing, Aquarium Environments asserted that it was entitled to a full evidentiary

hearing on the motion for sanctions. The trial court agreed and a second hearing was

held on March 1, 2003. At the hearing, Elgohary produced no witnesses, but instead

relied on the evidence attached to his motion, which consisted mostly of pleadings filed

in the case, emails and correspondence between the attorneys, and an affidavit on

attorney’s fees. Blue called Elgohary as a witness and explored with him Elgohary’s

13
contentions that the pleadings were groundless. Blue also testified and explained why he

filed each of the challenged pleadings and that he had “no bad faith motive” in the filings.

Elogohary’s motion also asserted that he was entitled to sanctions pursuant to TEX.

R. CIV. P. 215 for various discovery abuses attributable to Blue’s conduct in the case.

However, at the March 1, 2003 hearing, Elgohary withdrew his claim for attorney’s fees

sanctions under Rule 215 after Blue, citing Remington Arms Co., Inc. v. Caldwell, 850

S.W.2d 167 (Tex. 1993),1 argued that sanctions under Rule 215 were not available

because Elgohary had not obtained a pretrial ruling on the alleged discovery abuse, of

which he was aware before trial.

The trial court granted Elgohary’s motion for sanctions and signed an order

finding that the five pleadings were groundless and brought in bad faith. The trial court’s

order also stated, “The Court is of the firm conclusion that the series of pleadings and

motions by Mr. Blue after January 20122 was for an improper purpose, namely to harass,

delay, and increase the cost of litigation.” The order also awarded Elgohary $30,000 in

sanctions—$15,000 payable by Aquarium Environments and $15,000 payable by Blue,

individually, plus contingent appellate attorney’s fees from Blue in the event the sanctions

1
In Remington Arms, the relator argued that the trial court’s post-trial sanctions
against it were not recoverable under Rule 215 because the trial court could not
impose discovery sanctions post-trial for pretrial discovery abuse. 850 S.W.2d at
170. The supreme court held that “the failure to obtain a pretrial ruling on
discovery disputes that exist before commencement of trial constitutes a waiver of
any claim for sanctions based on that conduct,” but recognized that “if pretrial
discovery abuse is not revealed until after the trial has begun, or even after trial, a
party cannot be said to have waived a claim for sanctions.” Id.
2
The record shows the significance of January 2012 as being the month in which
Elgohary made a $6000 settlement demand on Aquarium Environments.
14
were unsuccessfully appealed. The sanctions were a global award and did not apportion

any specific amount to any one of the five challenged filings.

These sanctions were then incorporated into the trial court’s Second Amended

Final Judgment.

Standard of Review

We review a trial court’s ruling on a motion for sanctions for an abuse of

discretion. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004); Taylor v. Taylor,

254 S.W.3d 527, 532 (Tex. App.—Houston [1st Dist.] 2008, no pet.). A trial court

abuses its discretion when it acts without reference to any guiding rules and

principles, and we reverse a trial court’s ruling only if its action is arbitrary or

unreasonable. Cire, 134 S.W.3d at 838–39 (citing Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 241, 242 (Tex. 1985)). A trial court does not

abuse its discretion if it bases its decision on conflicting evidence and some

evidence supports its decision. In re Barber, 982 S.W.2d 364, 366 (Tex. 1998)

(orig. proceeding); Glattly v. Air Starter Components, Inc., 332 S.W.3d 620, 642

(Tex. App.—Houston [1st Dist.] 2010, pet. denied). We make an independent

inquiry of the entire record to determine whether the trial court abused its

discretion in imposing the particular sanctions. Scott Bader, Inc. v. Sandstone

Prods., Inc., 248 S.W.3d 802, 812 (Tex. App.—Houston [1st Dist.] 2008, no pet.)

15
(citing Daniel v. Kelley Oil Corp., 981 S.W.2d 230, 234 (Tex. App.—Houston [1st

Dist.] 1998, pet. denied)).

Sanctions Under Chapter 10

Civil Practice and Remedies Code section 10.001 provides that the signing

of a pleading constitutes a certification by the signatory that to the signatory’s best

knowledge, information, and belief, formed after reasonable inquiry:

(1) the pleading or motion is not being presented for any improper
purpose, including to harass or to cause unnecessary delay or needless
increase in the cost of litigation;

(2) each claim, defense, or other legal contention in the pleading or
motion is warranted by existing law or by a nonfrivolous argument for
the extension, modification, or reversal of existing law or the
establishment of new law;

(3) each allegation or other factual contention in the pleading or
motion has evidentiary support or, for a specifically identified
allegation or factual contention, is likely to have evidentiary support
after a reasonable opportunity for further investigation or discovery;
and

(4) each denial in the pleading or motion of a factual contention is
warranted on the evidence or, for a specifically identified denial, is
reasonably based on a lack of information or belief.

TEX. CIV. PRAC. & REM. CODE ANN. § 10.001 (Vernon 2002); see also Mattox v.

Grimes Co. Comm’rs Court, 305 S.W.3d 375, 386 (Tex. App.—Houston [14th

Dist] 2010, pet. denied) (“Sanctions under chapter 10 of the Civil Practice and

Remedies Code are authorized if the evidence establishes that (1) a pleading or

motion was brought for an improper purpose, (2) there were no grounds for legal
16
arguments advanced, or (3) a factual allegation or denial lacked evidentiary

support.”). The trial court may impose sanctions on a person who has signed a

pleading in violation of section 10.001. See TEX. CIV. PRAC. & REM. CODE ANN. §

10.004(a) (Vernon 2002).

However, sanctions for alleged violations of chapter 10 known to the

movants before trial are waived if a hearing and ruling are not secured pretrial. See

Finlay v. Olive, 77 S.W.3d 520, 525 (Tex. App.—Houston [1st Dist.] 2002, no

pet.) (citing Remington Arms Co. v. Caldwell, 850 S.W.2d 167, 170 (Tex.

1993)). Because that was not done in this case, the trial court could not impose

sanctions under Chapter 10.

Sanctions Under Rule 13

Rule 13 authorizes the imposition of sanctions against an attorney, a

represented party, or both, who file pleadings that are (1) groundless and brought

in bad faith or (2) groundless and brought to harass. TEX. R. CIV. P. 13. This is a

two-part test, requiring a party moving for rule 13 sanctions to demonstrate both

that the opposing party’s filings are groundless and then to also show that the

pleadings were filed either in bad faith or for the purposes of harassment. R.M.

Dudley Constr. Co. v. Dawson, 258 S .W.3d 694, 707 (Tex. App.—Waco 2008,

pet. denied). “Groundless” for purposes of rule 13 means no basis in law or fact

and not warranted by good faith argument for the extension, modification, or

17
reversal of existing law. TEX. R. CIV. P. 13. Bad faith is not simply bad judgment

or negligence; rather, it is the conscious doing of a wrong for dishonest,

discriminatory, or malicious purposes. Parker v. Walton, 233 S.W.3d 535, 540

(Tex. App.—Houston [14th Dist.] 2007, no pet). Improper motive is an essential

element of bad faith. Id. Harassment means that the pleading was intended to

annoy, alarm, and abuse another person. Id.

Courts must presume that pleadings and motions are filed in good faith, and

sanctions should not be imposed “except for good cause, the particulars of which

must be stated in the sanction order.” TEX. R. CIV. P. 13. The party moving for

sanctions bears the burden of overcoming the presumption that pleadings are filed

in good faith. Parker, 233 S.W.3d at 540.

When determining whether rule 13 sanctions are proper, the trial court must

examine the facts available to the litigant and the circumstances existing when the

litigant filed the pleading. Harrison v. Harrison, 363 S.W.3d 859, 863–64 (Tex.

App.—Houston [14th Dist.] 2012, no pet.). The trial court must provide notice and

hold an evidentiary hearing “to make the necessary factual determinations about

the motives and credibility of the person signing the groundless petition.” Parker,

233 S.W.3d at 539–40 (quoting Aldine Indep. Sch. Dist. v. Baty, 946 S.W.2d 851,

852 (Tex. App.—Houston [14th Dist.] 1997, no writ)). Without such a hearing, the

trial court has no evidence before it to determine that a pleading was filed in bad

18
faith or to harass. Alejandro v. Robstown Indep. Sch. Dist., 131 S.W.3d 663, 669

(Tex. App.—Corpus Christi 2004, no pet.).

We recognize that courts have not generally applied Remington Arms to

Rule 13 sanctions because “[r]ule 13 sanctions are unlike discovery sanctions in

that they directly concern the merits of the underlying action[,]” and “because the

court must first decide whether a party’s pleading is groundless.” Jobe v. Lapidus,

874 S.W.2d 764, 769 (Tex. App.—Dallas 1994, writ denied) (McGarry, J.,

dissenting). Indeed, most post-judgment rule 13 sanctions involve sanctioning the

losing party for filing a claim or defense with no basis in law or fact after that

claim has been resolved against the sanctioned party on the merits.

Here, however, at least two of the pleadings complained of—the motions to

quash and the motion for continuance—were based on discovery abuse, of which

Elgohary was aware before trial.

Regarding the motions to quash, the trial court’s order stated:

Defendant Aquarium Environments’ motions to quash were
groundless . . . and brought in bad faith intended to cause unnecessary
delay, needlessly increase the costs of litigation, and harass Elgohary.
Specifically, the court finds that Blue’s continued refusal to
communicate with opposing counsel in getting depositions scheduled
and have parties that were under Blue’s and Aquarium Environments’
control to appear for properly noticed depositions caused Elgohary to
legitimately schedule the requested depositions unilaterally. The
court further finds that Blue’s filing and signing of these motions to
quash were groundless and brought in bad faith and was intended to
cause unnecessary delay and increase the costs of litigation for
Elgohary, since Aquarium Environments and Blue made no attempt to
19
 contact Elgohary to reschedule depositions or state a reasonable time
and place in the motion with which the persons scheduled to appear
would comply.

Regarding the motion for continuance, the trial court’s order stated:

This Court’s amended docket control order was entered on September
24, 2012 and gave Aquarium Environments additional discovery time
as well as the opportunity to comply with the court’s directive
regarding Elgohary’s motion to compel Ordeneaux’s deposition.
Aquarium Environments and Blue took no action to fulfill this court’s
directive to provide dates to Elgohary at which Ordeneaux might
appear. Yet on the day of the trial Ordeneaux was present in this
court and ready to testify, despite this court’s specific instruction that
Ordeneaux was required to present himself for a deposition if he was
to testify at trial. Aquarium Environments also made no effort in
obtaining any further discovery in the addition six weeks that the
discovery period was reopened and for which they prayed that the
court grant a continuance back on August 3, 2012. Hence, it is clear
from Aquarium Environments’ and Blue’s conduct that the motion for
continuance was groundless and presented for an improper purpose,
mainly to harass, cause unnecessary delay and needless increase in the
cost of litigation to Elgohary.

As made clear from the trial court’s order, the basis for finding the motions to

quash and the motion for continuance groundless and in bad faith was Blue’s and

Aquarium Environments’ conduct during the discovery process. The rationale

behind Remington Arms (applying Rule 215) and Findlay v. Olive (applying

Chapter 10) is equally applicable in this situation, i.e., discovery disputes of which

the movant is aware pre-trial should be resolved pre-trial.3 The failure to do so

3
Indeed, the dispute over Luff’s and Ordeneaux’s failure to appear for a deposition
was resolved at trial when their testimony was prohibited. Elgohary received all
the relief he requested in connection with this discovery abuse.
20
results in a waiver of the right to seek sanctions based on that discovery abuse

post-trial.

Having decided that two of the five pleadings challenged will not support an

award of post-trial sanctions, we consider what effect, if any, that has on the

remaining portions of the sanctions order.

In Graves v. Tomlinson, the trial court awarded a global sanction of

$250,000 against the appellant “for all of Graves’ collective misconduct during the

divorce proceedings.” 329 S.W.3d 128, 150 (Tex. App.—Houston [14th Dist.]

2010, pet. denied). On appeal, the court noted that it could not tell which portion

of the global post-verdict sanction was attributable to discovery abuse, which was

waived, thus it could not determine whether the sanctions amount related directly

to sanctionable conduct. Id. at 151–152. As such, the sanction could not be

upheld.

The same is true in this case. Because Elgohary did not show how much he

was damaged by non-sanctionable conduct, i.e., discovery abuse, we cannot tell

whether the amount of the sanctions awarded is directly related to any sanctionable

conduct.

Accordingly, we sustain Aquarium Environments’ and Blue’s third issue on

appeal. We vacate the sanctions order, reverse the portion of the final judgment

that relates to sanctions, and render judgment that Elgohary take nothing on his

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post-verdict sanctions. See Christus Health Gulf Coast v. Carswell, No. 01-11-

00292-CV, 2013 WL 4602388, *26 (Tex. App.—Houston [1st Dist.] Aug. 29,

2013, no pet.) (vacating sanctions rather than reversing and remanding when

record does not show why the trial court chose to impose the amount of sanctions it

did).

CONTEMPT OF COURT

In its fourth and fifth issues on appeal, Aquarium Environments contends the

trial court abused its discretion by holding its counsel in contempt and assessing

fines against him in two separate post-judgment hearings. However, a contempt

judgment is reviewable only via a petition for writ of habeas corpus (if the

contemnor is confined) or a petition for writ of mandamus (if no confinement is

involved). Cadle Co. v. Lobingier, 50 S.W.3d 662, 671 (Tex. App.—Fort Worth

2001, pet. denied) (op. on reh’g) (citing In re Long, 984 S.W.2d 623, 625 (Tex.

1999) (op. on reh’g)). Decisions in contempt proceedings cannot be reviewed on

direct appeal because contempt orders are not appealable, even when appealed

along with a judgment that is appealable, as here. Id. (citing Metzger v. Sebek, 892

S.W.2d 20, 55 (Tex. App.—Houston [1st Dist.] 1994, writ denied); see also In re

Office of Att’y Gen. of Tex., 215 S.W.3d 913, 915 (Tex. App.—Fort Worth 2007,

orig. proceeding) (explaining why contempt judgments are not appealable and

must be attacked by petition for writ of habeas corpus or for writ of mandamus).

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We cannot reach Aquarium Environments’ contempt-based complaints in this

direct appeal, and we dismiss its fourth and fifth issues for want of jurisdiction.

CONCLUSION

We dismiss appellants’ complaints regarding contempt for want of

jurisdiction. We vacate the trial court’s sanctions order, reverse the portion of the

judgment awarding post-judgment sanctions, and render judgment that appellant

take nothing on his claim for post-judgment sanctions. We affirm the remainder of

the judgment.

Sherry Radack
Chief Justice

Panel consists of Chief Justice Radack and Justices Massengale and Huddle.

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