In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-23-00172-CV
___________________________
SUNBELT RENTALS, INC., Appellant
V.
W.O.E. CONSTRUCTION, INC. F/K/A WASHED OUT ENTERPRISES, INC.
AND CALEB CHALMERS, Appellees
On Appeal from the 48th District Court
Tarrant County, Texas
Trial Court No. 048-317068-20
Before Sudderth, C.J.; Kerr and Wallach, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
After two partial summary judgments and a nonsuit order, the trial court
assessed attorney’s fees and expenses against Appellant Sunbelt Rentals, Inc. as a
discovery-related sanction. See Tex. R. Civ. P. 191.3, 215. Sunbelt contends that the
sanctions order was void because it was entered 12 days after the trial court’s plenary
power ostensibly expired and, alternatively, that the trial court abused its discretion in
ordering sanctions. We will affirm.
Background
In January 2008, Appellee W.O.E. Construction, Inc. f/k/a Washed Out
Enterprises, Inc. executed a credit application with Sunbelt that enabled W.O.E. to
lease equipment from Sunbelt on credit. Appellee Caleb Chalmers, W.O.E.’s
president, signed the application on the company’s behalf and personally guaranteed
it.
W.O.E. rented a street sweeper from Sunbelt in September 2018. In late May
2019, a W.O.E. employee ran over a coworker with it, killing him. Roughly a week
later, on June 4, Sunbelt took possession of the sweeper and in this lawsuit claimed
that W.O.E. was obliged to (but did not) pay some $60,000 in rental fees that had
accumulated before the agreement ended by its own terms in December 2019.
2
Sunbelt sued W.O.E. and Chalmers1 for “breach of contract/breach of
personal guaranty” and for quantum meruit and sued W.O.E. for failing to defend,
indemnify, and hold harmless Sunbelt as the rental agreement required. In addition to
damages, Sunbelt prayed for attorney’s fees, pre- and postjudgment interest, and court
costs.
Through two partial-summary-judgment motions, W.O.E. obtained judgment
as a matter of law on Sunbelt’s claims. First, on November 29, 2022, the trial court
signed an order granting the first partial-summary-judgment motion and decreeing
that Sunbelt take nothing on its “breach of contract/breach of personal guaranty and
quantum meruit claims to the extent those claims seek rental fees from [W.O.E.]
based on any time after June 4, 2019.” A few months later, on March 30, 2023, the
trial court granted the second partial-summary-judgment motion and ordered that
Sunbelt take nothing on its claims that W.O.E. must defend, indemnify, and hold
Sunbelt harmless. Also on March 30, the trial court entered an order denying a partial-
summary-judgment motion that Sunbelt had filed.
Shortly before the trial court signed the second summary-judgment order,
W.O.E. filed an amended sanctions motion, seeking death-penalty sanctions,
We will refer to W.O.E. and Chalmers collectively as “W.O.E.”
1
3
attorney’s fees and costs, and monetary sanctions against Sunbelt for bad-faith
litigation tactics.2 That amended motion was set for a May 18, 2023 hearing.
While the sanctions motion was pending, on April 17, 2023, Sunbelt filed a
notice of “nonsuit without prejudice with respect to [Sunbelt’s] claims and causes of
action for rentals, if any, that were not disposed of by” the first summary-judgment
order of November 29, 2022. On April 18, 2023, the trial court signed an order
reflecting that Sunbelt had nonsuited those claims without prejudice. Like all
preceding orders in this case, the nonsuit order had no finality language to indicate
that all parties and pending claims were thereby disposed of and that the order was
appealable, nor did it mention the extant sanctions motion.
On May 17, 2023, Sunbelt filed a notice of appeal stating that it was appealing
from the trial court’s “final order on Plaintiff’s Partial Motion for Summary Judgment,
signed on March 17, 2023.”3
2
The trial court had earlier denied W.O.E.’s initial sanctions motion.
3
No summary-judgment order was actually signed on March 17, 2023, but both
the second summary-judgment order and the order denying Sunbelt’s own partial-
summary-judgment motion state that the respective motions were considered on that
date. It’s not clear why Sunbelt’s notice of appeal referred to a “final order” on
“Plaintiff’s” (Sunbelt’s) motion for partial summary judgment, since denials of
summary-judgment motions are not ordinarily appealable. See Lancer Ins. Co. v. Garcia
Holiday Tours, 345 S.W.3d 50, 59 (Tex. 2011) (“The denial of summary judgment is an
interlocutory order over which an appellate court typically lacks jurisdiction absent
some special statutory grant.”).
4
The trial court held an evidentiary hearing on the amended sanctions motion
on May 18, 2023, 30 days from the nonsuit order and the date on which the parties
assumed that the trial court’s plenary power would expire without a postjudgment
motion extending it. See Tex. R. Civ. P. 329b. At the hearing’s conclusion, the trial
court said that it would deny the requests for death-penalty and monetary sanctions of
$25 million but that it would grant the request that Sunbelt pay all W.O.E.’s attorney’s
fees and costs as sanctions. 4 The trial court signed an order reflecting these rulings
12 days later, on May 30, 2023.
In its appellate briefing, and unlike what its notice of appeal said, Sunbelt does
not attack any summary-judgment rulings but complains only about the sanctions
order.
Discussion
A. The April 18 nonsuit order was not a final one; rather, the May 30 sanctions
order was the last component of a final, appealable judgment.
Sunbelt’s first issue—that the May 30 sanctions order is void because plenary
power expired on May 18—posits that the April 18 nonsuit order fully disposed of all
parties and claims and was final and appealable.5 See Lehmann v. Har-Con Corp.,
Based on our disposition of Sunbelt’s second issue, we need not recite the
4
evidence elicited at the hearing about Sunbelt’s litigation conduct.
W.O.E.’s briefing accepts this faulty notion, arguing instead that Sunbelt’s
5
notice of appeal failed to invoke our jurisdiction to consider the stand-alone sanctions
order or, alternatively, that the trial court’s oral pronouncement on May 18, 2023—in
5
39 S.W.3d 191, 205 (Tex. 2001) (“[W]hen there has not been a conventional trial on
the merits, an order or judgment is not final for purposes of appeal unless it actually
disposes of every pending claim and party or unless it clearly and unequivocally states
that it finally disposes of all claims and all parties.”). But Sunbelt—and W.O.E.—are
incorrect.
fact not the last day of plenary power, as we explain—was timely and controls over
the later written order that was “merely an administrative act.”
At the sanctions hearing, the trial court stated that May 18 “seem[ed] to be the
last day of this Court’s plenary power” but that it “[had] not done any research on”
the outstanding sanctions issue’s effect on its plenary power. W.O.E.’s counsel stated
that, also without having researched it, he was “fine” with the trial court’s “proceeding
under that assumption.” Sunbelt’s counsel stated, “Candidly, I don’t know about a
sanctions motion. I don’t know whether that would be separate. I haven’t looked at
the issue.” We assume that the trial court later realized that its April 18 nonsuit order
had not fully disposed of all parties and claims, so it was comfortable waiting to sign
the sanctions order—the last-placed piece in the finality puzzle.
Whatever the explanation, the parties’ respective positions on appeal are
offtrack, including W.O.E.’s assertion that sanctions were orally rendered on May 18.
See, e.g., State v. Naylor, 466 S.W.3d 783, 788 (Tex. 2015) (“A trial court renders
judgment orally when it announces rendition as a present act and not as an intention
to render judgment in the future.” (cleaned up)). Here, the trial court stated that it was
“going to grant” attorney’s fees as a discovery sanction against Sunbelt, a forward-
looking statement, and asked W.O.E.’s counsel to prepare an order, which it signed
on May 30. See James v. Hubbard, 21 S.W.3d 558, 561–62 (Tex. App.—San Antonio
2000, no pet.) (holding that trial court’s statement that it was “going to grant the
divorce in this case” did not “express a present intent to render judgment”; moreover,
later written judgment expressing that judgment had been orally rendered at the
hearing “is not dispositive”); Able Cabling Servs. v. Aaron-Carter Elec., Inc., 16 S.W.3d 98,
100–01 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) (holding that court’s
statement that “judgment will be rendered in accordance with the terms dictated into
the record” did not indicate a present intent to render judgment).
6
In viewing the April 18 order as the final judgment, Sunbelt relies on
authorities that are either inapposite or predate the Texas Supreme Court’s decisions
in Unifund CCR Partners v. Villa, 299 S.W.3d 92 (Tex. 2009), and Crites v. Collins,
284 S.W.3d 839 (Tex. 2009)—decisions that, building upon Lehmann, unquestionably
yield the opposite conclusion. 6
In the first of those two cases, the supreme court dealt with a nonsuit order
that was entered while the defendant’s sanctions motion was pending. Crites,
284 S.W.3d at 840. About a month after the nonsuit order, the trial court denied the
defendant’s sanctions motion; the defendant’s notice of appeal came within 30 days of
that denial order but more than 30 days after the nonsuit. Id. Raising the issue of its
jurisdiction sua sponte, the supreme court considered “whether the order of nonsuit
or the order denying sanctions triggered the thirty[-]day filing period.” Id.
In holding that it was the latter, the supreme court noted that the nonsuit order
had no finality language and did not mention the outstanding sanctions motion:
Because the order of nonsuit itself does not unequivocally express an
intent for the order to be a final and appealable order, and because it
does not address all pending claims, the order was not final. Only when
the trial court issued its second order denying sanctions was a final order
entered, and only at that point did the case become appealable.
6
Neither party cited any of these cases, leaving it to us to locate and apply those
outcome-determinative opinions. Cf. Standards for Appellate Conduct, Lawyers’ Duties
to Court ¶ 4, Texas Rules of Court (State) 324–25 (West 2023) (“Counsel will advise
the Court of controlling legal authorities, including those adverse to their position,
and should not cite authority that has been reversed, overruled, or restricted without
informing the court of those limitations.”) (available at http://www.txcourts.gov/
media/1437423/standards-for-appellate-conduct.pdf).
7
Id. at 841 (citing Lehmann, 39 S.W.3d at 200, and Villafani v. Trejo, 251 S.W.3d 466,
468 (Tex. 2008) (holding that “the trial court’s denial of Villafani’s motion for
sanctions and dismissal and Trejo’s nonsuit collectively disposed of all the claims
between the two parties”)).
Unifund followed several months later. There, Unifund argued that a sanctions
order entered against it was void “because the trial court’s plenary power [had]
expired before it signed the order nine months after the order dismissing Unifund’s
suit.” 299 S.W.3d at 95. After reciting the familiar principle that “[t]he expiration date
for a trial court’s plenary power is calculated from the date the court enters a final
order disposing of all the claims and parties,” id., the supreme court explained why
Unifund was wrong to say that the plenary-power clock had started ticking with the
earlier order, see id. at 95–97.
First, unlike those of Unifund’s cited cases in which a sanctions motion was
filed after a judgment dismissing the case—most notably, Lane Bank Equipment Co. v.
Smith Southern Equipment, Inc., 10 S.W.3d 308, 310, 312 (Tex. 2000), and Scott & White
Memorial Hospital v. Schexnider, 940 S.W.2d 594, 596 n.2 (Tex. 1996)—Villa’s sanctions
motion was pending when Unifund moved to dismiss its case against him. Unifund,
299 S.W.3d at 96. Because the dismissal order did not specifically refer to the
sanctions motion, “the order did not necessarily dispose of Villa’s motion.” Id. (citing
Tex. R. Civ. P. 162 (stating that dismissal based on a nonsuit “shall have no effect on
any motion for sanctions”)); see Crites, 284 S.W.3d at 840 (“A judgment dismissing all
8
of a plaintiff’s claims against a defendant, such as an order of nonsuit, does not
necessarily dispose of any cross-actions, such as a motion for sanctions, unless
specifically stated within the order.”); see also Youboty v. Youboty, No. 14-20-00557-CV,
2022 WL 1548535, at *3 (Tex. App.—Houston [14th Dist.] May 17, 2022, no pet.)
(mem. op.) (holding nonsuit order, entered while sanctions motion was pending, did
not affect plenary power where “the trial court did not dispose of all claims and
parties in the case or state with unmistakable clarity that the court was rendering a
final judgment”); Walter v. Teller, No. 02-12-00028-CV, 2013 WL 5966351, at *2 (Tex.
App.—Fort Worth Nov. 7, 2013, no pet.) (mem. op. on reh’g) (rejecting argument
that sanction order was void because it was signed more than seven months after a
nonsuit order that “did not specifically reference [Wife’s] motion for sanctions or
otherwise unequivocally express any intent to dispose of the motion; therefore, the
order was not a final order that disposed of the motion for sanctions”).
Second, although a dismissal or nonsuit order can be final even when a
sanctions motion is pending and unremarked upon in the order—thus setting the
plenary-power timetable—that order must be unequivocal in its intent to be final.
Unifund, 299 S.W.3d at 96 (citing Crites, 284 S.W.3d at 840–43). The Unifund nonsuit
order manifestly did not purport to be final, as the supreme court explained. “The
dismissal order was entitled ‘ORDER OF DISMISSAL,’ stated ‘the above styled and
numbered cause be and it is hereby dismissed with prejudice,’ and did not specifically
address Villa’s pending motion for sanctions.” Id. at 96–97. Because it was “apparent”
9
from its language that this dismissal order was “not intended to be, and was not, a
final order disposing of all pending matters and thus appealable,” plenary power had
not expired before the trial court entered the sanctions order nine months later. Id. at
97. As a result, “[t]he sanctions order was not void.” Id.
Just so here. Similar to the Unifund dismissal order, the trial court’s “Order of
Nonsuit Without Prejudice” decreed that “[Sunbelt’s] claims and causes of action for
rentals, if any, that were not disposed of by [the court’s November 29, 2022 partial-
summary-judgment order] . . . are hereby nonsuited without prejudice.” That order
said nothing about the pending sanctions motion. Nor did the order contain any
recognized finality language such as “This judgment finally disposes of all parties and
all claims and is appealable.” Lehmann, 39 S.W.3d at 206. The trial court thus
possessed plenary power on May 30, 2023; that was the date on which all theretofore
interlocutory orders were merged into one final judgment, because only then did no
parties or claims remain unaddressed. As a result, that order was not void as outside
the trial court’s plenary power, and we overrule Sunbelt’s first issue.
This case does present a twist in that Sunbelt’s notice of appeal was early—that
is, because the May 30 final order triggered the appellate timetables, Sunbelt did not
have to file its notice of appeal on May 17. See Tex. R. App. P. 26.1 (providing that
with certain exceptions, notice of appeal must be filed within 30 days after judgment
signed). Rule 27.1(a) of our appellate-procedure rules provides that “a prematurely
filed notice of appeal is effective and deemed filed on the day of, but after, the event
10
that begins the period for perfecting the appeal.” Tex. R. App. P. 27.1(a); see In re J.M.,
396 S.W.3d 528, 530 (Tex. 2013).
We interpret the appellate rules “liberally in favor of preserving appellate
rights.” Higgins v. Randall Cnty. Sheriff’s Off., 257 S.W.3d 684, 688 (Tex. 2008). The
supreme court has “repeatedly held that the right of appeal should not be lost due to
procedural technicalities.” Roccaforte v. Jefferson Cnty., 341 S.W.3d 919, 924 (Tex. 2011).
Before May 30, 2023, although we could have dismissed Sunbelt’s appeal because,
technically, it was from an unappealable—not simply nonfinal—interlocutory order,
we did not. But once the trial court rendered a final appealable order, all preceding
interlocutory orders were merged into it, and at that point Sunbelt’s premature notice
of appeal was deemed filed. See Bonsmara Nat. Beef Co., LLC v. Hart of Tex. Cattle
Feeders, LLC, 603 S.W.3d 385, 390 (Tex. 2020) (citing Roccaforte, 341 S.W.3d at 924).
As to its contents’ sufficiency under Rule 25.1(d), however, a far closer
question exists. See Tex. R. App. P. 25.1(d) (detailing what a notice of appeal must
contain). Sunbelt sought to appeal from the “final order on Plaintiff’s Partial Motion
for Summary Judgment” (a nonfinal and unquestionably unappealable denial of
summary judgment) “signed on March 17, 2023” (an incorrect date). Problems
abound, but W.O.E. argues only that the sanctions order was a “separate, stand-alone
judgment” that Sunbelt was obliged to, but did not, separately appeal, such that
Sunbelt never invoked our jurisdiction, a position we rejected above.
11
Despite the self-evident shortcomings of Sunbelt’s notice of appeal, in the
interest of justice we will construe it as sufficiently invoking our jurisdiction to resolve
Sunbelt’s appellate complaint about the sanctions order. 7 A recent case from our sister
court in Houston summarizes why:
The supreme court advocates for a policy that “appl[ies] rules of
procedure liberally to reach the merits of the appeal whenever possible.”
Warwick Towers Council of Co-Owners v. Park Warwick, L.P., 244 S.W.3d
838, 839 (Tex. 2008) (per curiam).
Applying this precept, this court also takes a liberal approach
when evaluating alleged errors in notices of appeal. See, e.g., Human
Biostar, Inc. v. Celltex Therapeutics Corp., 514 S.W.3d 844, 846 (Tex. App.—
Houston [14th Dist.] 2017, pet. denied) (rejecting the appellee’s
argument that the court lacked jurisdiction because appellants’ notices of
appeal listed the wrong order); Lackshin v. Spofford, No. 14-03-00977-CV,
2004 WL 1965636, at *2 (Tex. App.—Houston [14th Dist.] Sept. 7,
2004, pet. denied) (mem. op.) (notice of appeal was not defective despite
listing incorrect date for final judgment); Griggs v. Wood, No. 14-00-
00226-CV, 2001 WL 987906, at *1 n.1 (Tex. App.—Houston [14th
Dist.] Aug. 30, 2001, no pet.) (not designated for publication) (declining
to dismiss notice of appeal because it did not state the date of the
judgment or the order appealed from).
Wolfe’s Carpet, Tile & Remodeling, LLC v. Bourelle, No. 14-22-00579-CV,
2023 WL 4770069, at *2 (Tex. App.—Houston [14th Dist.] July 27, 2023, no pet.). We
thus proceed to Sunbelt’s second issue, the propriety of the trial court’s awarding
W.O.E. its attorney’s fees and costs as sanctions for Sunbelt’s litigation conduct.
7
Future litigants should not rely on our relative lenience here as license to be
less than punctilious in perfecting appeals.
12
B. Sunbelt did not preserve the sanctions complaint it briefed, but even so, the
trial court did not abuse its discretion.
At the outset, we note that Sunbelt’s discussion of its second issue does not
match its framing. Sunbelt presented this issue as “[w]hether [W.O.E.’s] motion for
sanctions against [Sunbelt] satisfies the Court’s requirements for imposing sanctions
of the nature requested, when [W.O.E.] presents no evidence of intentional bad faith
by [Sunbelt] or counsel.” But its argument rests entirely on a claim that W.O.E. failed
to segregate its attorney’s fees. 8 We hold that any evidentiary-sufficiency complaint
has been waived by Sunbelt’s failure to provide argument with appropriate citations to
authorities and to the record to support any such contention and will limit our review
to Sunbelt’s segregation argument. See Petras v. Criswell, 248 S.W.3d 471, 475 n.1 (Tex.
App.—Dallas 2008, no pet.); see also Schulze v. Cap Collection JV7, No. 03-03-00390-CV,
2004 WL 2108730, at *3 n.4 (Tex. App.—Austin Sept. 23, 2004, no pet.) (mem. op.)
(“Schulze reported his ‘Issues Presented’ differently than he argued them in the body
of his brief. We will address them as actually argued.”).
8
For unexplained reasons, Sunbelt casts its issue-two argument in terms of an
equitable and just fee recovery under the Uniform Declaratory Judgments Act. See
Tex. Civ. Prac. & Rem. Code Ann. § 37.009. It also relies on inapposite caselaw
concerning a party’s obligation to segregate recoverable attorney’s fees allowed by
statute or contract from nonrecoverable ones, citing Kinsel v. Lindsey, 526 S.W.3d 411,
427 (Tex. 2017), and Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310, 314 (Tex.
2006). Neither case involved an attorney’s-fee award as a sanction for discovery abuse,
and the case before us has no declaratory-judgment requests in it. We take it that
Sunbelt complains that the trial court did not limit its attorney’s-fees award to
amounts that W.O.E. incurred in pursuing sanctions, rather than the entirety of
W.O.E.’s attorney’s fees.
13
The trial court awarded W.O.E. the entirety of its attorney’s fees ($48,189.77)
and costs ($612.77) as sanctions “in accordance with Texas Rule of Civil Procedure
191, Texas Rule of Civil Procedure 215, and/or the Court’s inherent power to impose
sanctions.” The trial court declined W.O.E.’s invitation to also sanction Sunbelt
$25 million dollars for its litigation conduct and the “flagrant bad faith” and “callous
disregard” for its discovery obligations that the trial court found.
W.O.E.’s amended sanctions motion requested, among other things, an order
that “Sunbelt pay all W.O.E.’s attorney’s fees and expenses in defending against
Sunbelt’s claims and pursuing these sanctions.” At the May 18 hearing, for the first
time, W.O.E. provided Sunbelt with copies of its attorney’s-fees invoices. Although
Sunbelt had apparently indicated beforehand, off the record, that it would object to
attorney’s-fees evidence, its counsel stated that
[W.O.E.’s counsel] did hand me a stack of bills during the break, and so
I may still assert my objection, but, I mean, I’m certainly prepared to at least
ask a few questions of [W.O.E.’s counsel], and I think in the purpose of
everything, I certainly don’t want to stop a train with respect to -- to
getting that information out there. [Emphasis added.]
W.O.E.’s counsel then testified in narrative form and offered the billing records
into evidence. The trial court asked if there were any objections to those exhibits;
Sunbelt said no.
In cross-examining W.O.E.’s counsel, Sunbelt asked about any attempts to
segregate fees relating to “any of the alleged discovery abuse versus the amounts that
[counsel] billed in this lawsuit.” W.O.E.’s counsel explained that he had “looked to
14
try” but “didn’t find it to be feasible,” referring back to his narrative testimony on
direct that carving out only those fees relating to the sanctions motion was “difficult
because the whole Motion for Sanctions and the Amended Motion for Sanctions all
stem from the original conduct in this case to begin with.”9 The following colloquy
occurred about possible segregation:
Q. What are the costs associated with the motion – the
original Motion for Sanctions?
A. I have to go back and look and pull them up.
Q. Okay. As we’re sitting here right now -- I don’t want to
waste anymore of the Court’s time, but you can’t tell us that number, can
you?
A. Well, there was a lot of work that went into the motion.
First of all, again, it’s hard to segregate that. That’s part of the point.
There were -- there were years of discovery issues and discovery
problems associated with the case, and then ultimately you have to do
the research, the analysis, the writing, pull it together. We’ve already had
one hearing. So I can go back and break down that number for you but I mean
we --
Q. As we sit here right now though, [W.O.E.’s counsel], you
cannot give us the number associated with preparing, filing the initial --
original Motion for Sanctions, can you?
A. No. It’s all contained in [the two billing-records exhibits].
Q. Okay. Likewise, you can’t tell us the amounts involved with
respect to the amounts associated with the Amended Motion for
Sanctions, can you?
9
In its closing remarks, W.O.E. recapped that it was “seeking sanctions based
on all the sanctionable conduct that has occurred. We have false statements, untrue
testimony, manufacturing evidence, spoliation of a key document and relying on false
contract documents.”
15
A. I could if we wanted to take the time to go through it. It’s all
contained in Exhibits 1 and 2. [Emphases added.]
Sunbelt never objected to the lack of segregation, asked that W.O.E.’s counsel
do what he said was possible, or moved for a continuance. Later in the hearing,
Sunbelt argued simply that “Under Rohrmoos Ventures,[10] they have the burden to
segregate which fees are potentially related and which ones aren’t. They haven’t done
that.” At the hearing’s end, Sunbelt did not object when the trial court announced its
ruling awarding all undifferentiated fees and costs shown in the billing records and did
not move for reconsideration or for a new trial after the trial court later reduced its
ruling to writing.
Although W.O.E. has not raised the issue, “[p]reservation of error is a systemic
requirement on appeal,” and “a court of appeals should review preservation of error
on its own motion.” Osman v. City of Fort Worth, No. 02-21-00117-CV,
10
Rohrmoos Venture did not involve fee segregation but instead clarified the legal
and evidentiary standards for establishing reasonable attorney’s fees in a fee-shifting
situation. See Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469,
492 (Tex. 2019). The supreme court later extended Rohrmoos Venture to the sanctions
context, holding that “[b]efore a court may exercise its discretion to shift attorney’s
fees as a sanction, there must be some evidence of reasonableness because without
such proof a trial court cannot determine that the sanction is ‘no more severe than
necessary’ to fairly compensate the prevailing party.” Nath v. Tex. Children’s Hosp.,
576 S.W.3d 707, 709 (Tex. 2019) (quoting PR Invs. & Specialty Retailers, Inc. v. State,
251 S.W.3d 472, 480 (Tex. 2008)). The Nath court remanded the attorney’s-fees issue
because the only evidence of reasonableness came in the form of counsel’s conclusory
affidavits; billing records were not introduced. See id. at 710. Here, of course, W.O.E.’s
counsel not only testified but put into evidence, without objection, all the billing
records.
16
2022 WL 187984, at *5 n.9 (Tex. App.—Fort Worth Jan. 20, 2022, pet. denied) (mem.
op.) (quoting Knoderer v. State Farm Lloyds, 515 S.W.3d 21, 44 (Tex. App.—Texarkana
2017, pet. denied)); see Fed. Deposit Ins. Corp. v. Lenk, 361 S.W.3d 602, 604 (Tex. 2012)
(“When a party fails to preserve error in the trial court . . . an appellate court may not
consider the unpreserved or waived issue.”); cf. Mitchell v. Wilmington Sav. Funds Soc’y,
FSB, No. 02-18-00089-CV, 2019 WL 150262, at *4 (Tex. App.—Fort Worth Jan. 10,
2019, no pet.) (mem. op.) (“[B]efore we consider whether an abuse of discretion has
occurred, the error must be preserved for our review.”).
Error preservation generally requires that a party present its complaint to the
trial court by timely request, objection, or motion with sufficient specificity to make
the trial court aware of the complaint. See Tex. R. App. P. 33.1(a); Daniels v. Daniels,
No. 02-19-00387-CV, 2021 WL 832648, at *2 (Tex. App.—Fort Worth Mar. 4, 2021,
no pet.) (mem. op.). If the party fails to do this, the complaint is waived on appeal,
and “[c]omplaints regarding alleged error in awarding attorney’s fees are subject to
this rule.” Daniels, 2021 WL 832648, at *2 (quoting Dinkins v. Calhoun, No. 02-17-
00081-CV, 2018 WL 2248572, at *8 (Tex. App.—Fort Worth May 17, 2018, no pet.)
(mem. op.)).
“[I]f no objection is made to a failure to segregate attorney’s fees . . . at the time
evidence of attorney’s fees is presented . . . , the error is waived.” Fire Ins. Exch. v.
Kennedy, No. 02-11-00437-CV, 2013 WL 441088, at *5 (Tex. App.—Fort Worth Jan.
31, 2013, pet. denied) (mem. op.); see also Am. Homeowners Pres. Fund v. Pirkle,
17
475 S.W.3d 507, 529 & n.29 (Tex. App.—Fort Worth 2015, pet. denied). “In a bench
trial, the objection that attorney’s fees are not segregated as to specific claims must be
raised before the trial court issues its ruling.” Huey-You v. Huey-You, No. 02-16-00332-
CV, 2017 WL 4053943, at *2 (Tex. App.—Fort Worth Sept. 14, 2017, no pet.) (mem.
op.) (citing Rule 33.1(a)(1) and holding that because appellant did not object based on
a failure to segregate before the trial court issued its ruling, any error was waived); see
also Spriggs v. Gonzales, No. 07-16-00418-CV, 2018 WL 3193746, at *10 (Tex. App.—
Amarillo June 28, 2018, pet. denied) (mem. op.) (noting that even if appellants had no
opportunity to object and obtain a ruling at the sua sponte Rule 13 sanctions hearing
sprung on them by the trial court, they could have preserved their sanctions-related
complaint with a motion for rehearing or motion for new trial specifying their
complaints). This principle applies as well to attorney’s fees awarded as sanctions.
Werley v. Cannon, 344 S.W.3d 527, 535 (Tex. App.—El Paso 2011, no pet.) (failing to
object that trial court did not require plaintiffs to segregate attorney’s fees awarded as
sanction waived complaint on appeal). We do not consider Sunbelt’s passing reference
to Rohrmoos Venture to cut the error-preservation mustard and thus overrule its second
issue.
But even if Sunbelt preserved its failure-to-segregate complaint, the trial court
did not abuse its discretion in awarding W.O.E. all its attorney’s fees.
We review a trial court’s decision on sanctions for a clear abuse of discretion.
Horizon Health Corp. v. Acadia Healthcare Co., Inc., 520 S.W.3d 848, 884 (Tex. 2017)
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(citing Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004)). The test is not whether, in
our opinion, the trial court acted appropriately on the facts presented but “whether
the court acted without reference to any guiding rules and principles.” Cire,
134 S.W.3d at 838–39 (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,
241 (Tex. 1985)). We will reverse only if the ruling was arbitrary or unreasonable. Id. at
839. Sanctions awarded must be “just.” TransAm. Nat. Gas Corp. v. Powell, 811 S.W.2d
913, 917 (Tex. 1991) (orig. proceeding).
Sunbelt does not challenge the evidence underpinning the trial court’s findings
that, upon considering Sunbelt’s conduct “during the entirety of this litigation,”
(1) the offensive conduct and the sanction imposed were directly related; (2) “the
offensive conduct is attributable to Sunbelt and its counsel”; (3) the sanctions and
their amount “are based on legitimate purposes for sanctions”; (4) “Sunbelt’s conduct
constitutes flagrant bad faith”; (5) Sunbelt had callously disregarded its discovery
responsibilities under the rules; and (6) the sanctions were not excessive. These
unchallenged findings, entered after an evidentiary hearing, support the sanctions
award.
Conclusion
Having overruled Sunbelt’s two issues, we affirm the trial court’s judgment.
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/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Delivered: February 29, 2024
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