Jeffrey L. Wilner v. Andres Quijano and Osmaldo Marquez

Opinion issued October 25, 2012

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-11-00322-CV
———————————
JEFFREY L. WILNER, Appellant
V.
ANDRES QUIJANO AND OSMALDO MARQUEZ, Appellees

On Appeal from the 11th District Court
Harris County, Texas
Trial Court Case No. 2009-40972

MEMORANDUM OPINION

In this sanctions case, Andres Quijano and Osmaldo Marquez (collectively,

“Quijano”) sued Paparruchos Bar Parilla Mexicana (“Paparruchos”) for dram shop

violations. After the trial court entered a take-nothing judgment against Quijano, it
sanctioned appellant, Jeffrey Wilner, Paparruchos’s trial counsel, for various

violations of the discovery process. In four issues, Wilner contends that the trial

court abused its discretion by (1) sanctioning him sua sponte without notice and a

hearing; (2) sanctioning him post-trial for conduct that allegedly occurred pre-trial;

(3) sanctioning him for Paparruchos’s failure to pay a sanctions award that the

court had previously assessed against it; and (4) failing to properly describe the

basis for the sanctions against him.

We affirm.

Background

On June 29, 2007, Quijano and Marquez visited Paparruchos. After leaving

the restaurant, Marquez crashed his vehicle into a light pole, injuring both himself

and Quijano, his passenger. Two years later, Quijano and Marquez sued

Paparruchos and Rodrigo Salas, the alleged owner of Paparruchos at the time of

the incident, for dram shop violations, alleging that Paparruchos’s employees

negligently continued to serve alcoholic beverages to Marquez despite his obvious

intoxication, which proximately caused their subsequent injuries. Quijano served

requests for disclosure pursuant to Texas Rule of Civil Procedure 194 with his

original petition.

On February 23, 2010, Quijano moved to compel discovery responses and

moved for sanctions against Paparruchos, arguing that although Paparruchos

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served responses to Quijano’s requests for admissions it did not serve responses to

interrogatories or to requests for production. Quijano requested that the trial court

require Paparruchos to pay his expenses, including attorney’s fees, caused by its

failure to timely comply with discovery requests. Wilner did not attend the hearing

on this motion. On March 15, 2010, the trial court ordered Paparruchos to fully

respond to the outstanding discovery requests and to provide the requested

documents within ten days. The court did not award sanctions against Paparruchos

at this time.

After Paparruchos failed to comply with this order, Quijano moved for

sanctions a second time on April 26, 2010. Quijano asked the trial court to strike

Paparruchos’s pleadings and to order Paparruchos “and/or” its counsel, Wilner, to

pay his reasonable expenses, including attorney’s fees. On May 10, 2010, the trial

court partially granted the motion for sanctions, awarding Quijano $1,000 in

attorney’s fees. The trial court marked through the section of the proposed order

that imposed sanctions on Wilner, and, therefore, the court imposed sanctions

solely on Paparruchos. The court determined that good cause to impose sanctions

existed because Paparruchos and Wilner “committed egregious misconduct” by

failing to answer discovery requests for over five months and by ignoring the

court’s March 15, 2010 order requiring Paparruchos to answer all outstanding

discovery requests within ten days.

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 On March 18, 2011, Quijano moved for a continuance on the grounds that

Rodrigo Salas, the alleged owner of Paparruchos at the time of the incident, did not

appear for his deposition. At trial four days later, the trial court denied this motion

and Quijano announced that he was not ready to proceed. Wilner was present and

announced that he was ready to proceed on behalf of Paparruchos. The court

rendered a take-nothing judgment against Quijano “based upon the fact that the

case has been called to trial and [Quijano] is not prepared to proceed.”

The trial court then informed the attorneys that it had the power to sanction

conduct occurring in a case, and it took “judicial notice of the discovery process in

this case.” The court noted that Quijano filed two motions to compel, and it

observed that the discovery responses that Paparruchos did provide “essentially

gave absolutely no information whatsoever.” The court concluded that these

responses were filed in bad faith and violated Texas Rule of Civil Procedure 13.

The court also took notice of the fact that Salas never appeared for his deposition.

The court then noted that, on May 10, 2010, it had granted Quijano’s motion to

compel and ordered Paparruchos to pay $1,000 in sanctions, which had not been

paid. The court stated:

But what I see is a [continuing] pattern of bad faith responses on the
part of Mr. Wilner, including the fact he didn’t pay the $1,000 in
sanctions. So I am going to sanction Mr. Wilner $5,000. That is not
his client. That is Mr. Wilner is going to be sanctioned $5,000. That
sanctions order will survive the take-nothing judgment in this case and
will be enforceable against Mr. Wilner personally. So the fact that
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 this is a take-nothing judgment will not affect the fact that Mr. Wilner
is obligated to pay $5,000 in sanctions for the conduct I have cited
thus far and that is demonstrated by the record in this case. I order the
$5,000 in sanctions to be paid to the plaintiffs and their attorney in
this case within 30 days. Again, that order will survive the take-
nothing judgment in this case which is permitted by the rules.
Sanctions orders can be issued which survive the judgment in the
case.

After the trial court made this pronouncement, Wilner stated that Salas’s

deposition was cancelled and then never reset by Quijano. The court responded:

Even if that is true, the responses to Requests for Disclosure, the fact
that I had to sanction you a year ago and you didn’t pay it, I think that
is sufficient in and of itself. In particular, those responses to Requests
for Disclosures did not convey the information that they’re required to
convey. That is the basis of the ruling.

The clerk’s record does not include a written order imposing sanctions

against Wilner. It does, however, include the trial court’s docket sheet, which

includes the following notation for March 22, 2011:

Motion for continuance denied and the case was called to trial.
Plaintiff announced not ready and Defendant announced ready.
Judgment was rendered for Defendant on all Plaintiffs’ claims. The
court then sanctioned Defendant’s attorney, Jeffrey Wilner, $5000 for
multiple instances of discovery abuse and violations of Rule 13. This
included his failure to pay $1000 in sanctions in my 5/10/2010 order.
This sanctions order will survive the judgment rendered today
disposing of all Plaintiffs’ claims. The sanctions must be paid within
30 days to Plaintiffs and their attorney. A record was made.

Wilner did not move for a new trial or file any other post-judgment motions.

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 Standard of Review

We review a trial court’s sanctions award for an abuse of discretion. Finlay

v. Olive, 77 S.W.3d 520, 524 (Tex. App.—Houston [1st Dist.] 2002, no pet.). A

trial court abuses its discretion when it acts arbitrarily and unreasonably, without

reference to any guiding rules or principles. Id. (citing Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985)).

Propriety of Sanctions Order

A. Sua Sponte Sanctions

In his first issue, Wilner contends that the trial court abused its discretion by

imposing sanctions against him sua sponte and without notice and a hearing.

Trial courts possess the inherent power to discipline an attorney’s behavior,

and this power includes the ability to impose sanctions on its own motion in an

appropriate case. See In re Bennett, 960 S.W.2d 35, 40 (Tex. 1997) (per curiam)

(orig. proceeding); Metzger v. Sebek, 892 S.W.2d 20, 51 (Tex. App.—Houston [1st

Dist.] 1994, writ denied) (“Trial courts also have inherent powers on which they

may call to administer justice and preserve their dignity and integrity. This power

includes the ability to sanction bad faith conduct that occurs during the course of

litigation.”). The trial court’s power to sanction is limited by the due process

clause, which requires that the court give notice of its intention to consider

sanctions and provide an opportunity for the party to respond. In re Bennett, 960

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S.W.2d at 40; see Finlay, 77 S.W.3d at 525 (providing that trial court may impose

sanctions pursuant to Texas Rule of Civil Procedure 215, concerning abuse of

discovery process, only after notice and hearing).

However, when an attorney fails to complain of the sanction imposed and

fails to ask the trial court to reconsider its actions in imposing the sanction, the

attorney waives any complaint about the trial court’s actions. Howell v. Tex.

Workers’ Comp. Comm’n, 143 S.W.3d 416, 450 (Tex. App.—Austin 2004, pet.

denied) (citing TEX. R. APP. P. 33.1(a)(1)(A) (stating that to preserve error for

appeal, party must make timely and sufficiently specific objection in trial court));

Kiefer v. Cont’l Airlines, Inc., 10 S.W.3d 34, 41 (Tex. App.—Houston [14th Dist.]

1999, pet. denied). In Howell, the trial court sua sponte imposed a $3,200 sanction

on appellant’s attorneys, but the attorneys did not contest the sanction at the time

that it was imposed, nor did they subsequently ask the trial court to reconsider its

action. 143 S.W.3d at 450. As a result, the Austin Court of Appeals held that “the

district court had no opportunity to correct any error it may have perceived” and

that, therefore, the attorneys failed to preserve their complaints concerning these

sanctions for appellate review. Id.; see also Kiefer, 10 S.W.3d at 41 (“Mills,

Shirley complied with the trial court’s [sanctions] order and failed to complain or

ask the judge to reconsider on grounds of lack of notice. The trial court had no

opportunity to correct any error it may have perceived.”); Valdez v. Valdez, 930

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S.W.2d 725, 728 (Tex. App.—Houston [1st Dist.] 1996, no writ) (“We hold that

[the attorney] has waived this complaint on appeal because he never complained of

the sanctions against him to the trial court, and thus he never gave the trial court

the opportunity to correct the alleged error. He never complained to the trial court

that he had no notice that sanctions could be imposed against him; the first time

this complaint is made is on appeal.”).

Here, Wilner contends that after the trial court rendered a take-nothing

judgment against Quijano it then impermissibly imposed sua sponte sanctions

against him without giving him notice and an opportunity for a hearing. The trial

court sanctioned Wilner on the record at the trial. The trial court stated that its

decision was based on (1) Wilner’s bad faith in responding to outstanding

discovery requests, (2) Salas’s failure to attend his deposition, and (3) Wilner’s

failure to comply with the court’s May 10, 2010 order and pay the $1,000

sanctions award previously assessed against Paparruchos. Wilner sought to clarify

that Salas’s deposition was cancelled and that Quijano “never reset the deposition,”

but he did not otherwise complain that the trial court’s decision to impose

sanctions was erroneous, and he did not object on the basis that he lacked notice.

Wilner did not file a post-judgment motion challenging the trial court’s sanctions

order.

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 Because Wilner did not complain to the trial court about its sua sponte

decision to impose sanctions upon him, the trial court had no opportunity to correct

the alleged error when it was in a position to do so. See Howell, 143 S.W.3d at

450; Kiefer, 10 S.W.3d at 41; Valdez, 930 S.W.2d at 728. We therefore hold that

Wilner failed to preserve this complaint for appellate review.

We overrule Wilner’s first issue.

B. Sanctions Awarded Post-Trial for Pre-Trial Discovery Conduct and
Sanctions Against Counsel for Defendant’s Failure to Pay
Previously-Assessed Sanctions Award

In his second issue, Wilner contends that the trial court abused its discretion

when it imposed sanctions against him after trial for his pre-trial discovery

conduct. In his third issue, Wilner contends that the trial court abused its

discretion when it sanctioned him for Paparruchos’s failure to pay $1,000 in

sanctions that had previously been assessed against it in the court’s May 10, 2010

order. We consider these issues together.

Wilner cites the Texas Supreme Court’s opinion in Remington Arms Co. v.

Caldwell, 850 S.W.2d 167 (Tex. 1993) (orig. proceeding), and this Court’s opinion

in Finlay for the proposition that a trial court is precluded from awarding sanctions

post-trial for conduct that occurred and was known to the party moving for

sanctions before trial. In Remington Arms, the supreme court held that “the failure

to obtain a pretrial ruling on discovery disputes that exist before commencement of

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trial constitutes a waiver of any claim for sanctions based on that conduct.” 850

S.W.2d at 170; Finlay, 77 S.W.3d at 525 (“Sanctions for alleged violations known

to movants before trial are waived if a hearing and ruling are not secured

pretrial.”). In Finlay, we noted that “[t]o postpone rulings on completed pre-trial

matters, where trial pleadings in the case are not at issue, and where trial testimony

has no bearing on the sanctions dispute, would be to violate the very essence of

Remington Arms.” 77 S.W.3d at 526.

Wilner also cites the Texas Supreme Court’s decision in TransAmerican

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

for the proposition that sanctions for discovery abuse must be just, and, in order for

the sanctions award to be just, there must be a relationship between the allegedly

improper conduct and the sanctions imposed. Wilner contends that the trial court

abused its discretion when it imposed sanctions against him based on

Paparruchos’s failure to pay the previously-assessed $1,000 sanctions award

because the court imposed the previous sanctions award against Paparruchos, not

against Wilner himself, and, therefore, “there [were] no orders that were not

complied with by [Wilner].”

Texas Rule of Appellate Procedure 33.1(a)(1)(A) provides that, as a

prerequisite for presenting a complaint on appeal, the record must demonstrate that

the complaining party made his complaint to the trial court by a timely request,

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objection, or motion that stated the grounds for the ruling sought with sufficient

specificity to make the trial court aware of the complaint. TEX. R. APP. P.

33.1(a)(1)(A); see Arkoma Basin Exploration Co. v. FMF Assocs. 1990-A, Ltd.,

249 S.W.3d 380, 387 (Tex. 2008) (“[T]he cardinal rule for preserving error is that

an objection must be clear enough to give the trial court an opportunity to correct

it.”); In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003) (“Requiring parties to raise

complaints at trial conserves judicial resources by giving trial courts an opportunity

to correct an error before an appeal proceeds.”). An objection is considered timely

if it is asserted at the earliest opportunity or when the potential error becomes

apparent. First Nat’l Collection Bureau, Inc. v. Walker, 348 S.W.3d 329, 337

(Tex. App.—Dallas 2011, pet. denied); Hoxie Implement Co. v. Baker, 65 S.W.3d

140, 145 (Tex. App.—Amarillo 2001, pet. denied). As we have already held with

regard to Wilner’s first issue, when an attorney fails to complain of the sanction

imposed by the trial court and fails to ask the trial court to reconsider its actions,

the attorney waives any complaint on appeal about the trial court’s action. See

Kiefer, 10 S.W.3d at 41; Valdez, 930 S.W.2d at 728.

Here, after the trial court rendered a take-nothing judgment against Quijano,

it addressed Wilner’s conduct during the discovery period. The trial court pointed

out three specific reasons why it decided to sanction Wilner pursuant to Rule 13

and its inherent power to sanction attorneys: (1) the discovery responses that

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Wilner did serve upon Quijano “essentially gave absolutely no information

whatsoever” and thus were filed in bad faith; (2) Salas failed to appear for his

deposition; and (3) Paparruchos failed to pay the $1,000 sanctions award imposed

against it in the court’s May 10, 2010 order for failure to comply with outstanding

discovery requests. As a result of this conduct, the trial court imposed a $5,000

sanction against Wilner personally. At this point, Wilner was aware that the trial

court was imposing sanctions on him post-trial for conduct that occurred pre-trial

and that the court was sanctioning him for Paparruchos’s failure to comply with a

previous sanctions order. Wilner, however, did not object to the trial court’s

actions at this time, nor did he raise these challenges in a post-judgment motion.

See Hoxie Implement Co., 65 S.W.3d at 145 (“[A]n objection is considered timely

urged when asserted at the earliest opportunity, or when the potential error

becomes apparent.”); see also First Nat’l Collection Bureau, 348 S.W.3d at 337

(holding same).

The proper time for Wilner to have raised these challenges was at the time

the trial court imposed sanctions upon him, at which point the court could have

reconsidered its decision. See In re B.L.D., 113 S.W.3d at 350 (“Requiring parties

to raise complaints at trial conserves judicial resources by giving trial courts an

opportunity to correct an error before an appeal proceeds.”); see also Howell, 143

S.W.3d at 450 (requiring party to raise issue concerning sua sponte sanctions

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before trial court so court could have “opportunity to correct any error it may have

perceived”). Wilner, however, waited to raise these complaints for the first time

on appeal. See Birnbaum v. Law Offices of G. David Westfall, P.C., 120 S.W.3d

470, 476 (Tex. App.—Dallas 2003, pet. denied) (“Without a proper presentation of

the alleged error to the trial court, a party does not afford the trial court the

opportunity to correct the error.”). We therefore conclude that Wilner has failed to

preserve these issues for appellate review.

We overrule Wilner’s second and third issues.

C. Failure to Make Particularized Findings under Rule 13

Finally, in his fourth issue, Wilner contends that the trial court abused its

discretion by referencing Rule 13 as a basis for sanctions but failing to particularly

describe his conduct that violated this rule.

A trial court may impose sanctions pursuant to Rule 13 if a pleading is

groundless and brought in bad faith or for the purpose of harassment. See TEX. R.

CIV. P. 13; Thielemann v. Kethan, 371 S.W.3d 286, 294 (Tex. App.—Houston [1st

Dist.] 2012, pet. denied). Rule 13 provides, “No sanctions under this rule may be

imposed except for good cause, the particulars of which must be stated in the

sanction order.” TEX. R. CIV. P. 13. A trial court is “not at liberty to ignore the

clear and unambiguous language of this rule,” and, therefore, when the trial court

imposes Rule 13 sanctions, it is “required to make particularized findings of good

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cause justifying the sanctions.” Tex.-Ohio Gas, Inc. v. Mecom, 28 S.W.3d 129,

135 (Tex. App.—Texarkana 2000, no pet.). The trial court abuses its discretion

when it fails to comply with this “clear directive.” Id.

Courts have consistently held, however, that a complaining party waives the

particularity requirement of Rule 13 by failing to make a timely complaint to the

trial court. Id. at 135–36; see also Alexander v. Alexander, 956 S.W.2d 712, 714

(Tex. App.—Houston [14th Dist.] 1997, pet. denied) (“We agree with the courts

requiring that the appellant object to a lack of particularity in the trial court before

raising the complaint on appeal.”); Land v. AT&S Transp., Inc., 947 S.W.2d 665,

667 (Tex. App.—Austin 1997, no writ) (holding same); McCain v. NME Hosps.,

Inc., 856 S.W.2d 751, 756 (Tex. App.—Dallas 1993, no writ) (“The record does

not show that appellants objected to the trial court’s failure to be more specific

about good cause or its particulars. Appellants preserved nothing for review.”).

Here, as we have already discussed, Wilner failed to raise any challenge to

the sanctions order before the trial court, either at the trial setting at which the

court imposed the sanctions or in a post-judgment motion. Because Wilner failed

to complain to the trial court that its sanctions order violated the particularity

requirement of Rule 13, we conclude that Wilner did not preserve this complaint

for appellate review. See Tex.-Ohio Gas, 28 S.W.3d at 136 (“[B]y failing to make

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a timely objection, Texas-Ohio waived its complaint regarding the particularity of

the sanction orders.”).

We overrule Wilner’s fourth issue.

Conclusion

We affirm the sanctions order of the trial court.

Evelyn V. Keyes
Justice

Panel consists of Justices Keyes, Massengale, and Brown.

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