Malone, Roy and Mary v. Abraham, Watkins, Nichols & Friend

Opinion issued May 20, 2004

In The

Court of Appeals

For The

First District of Texas

NO. 01-99-01192-CV

ROY MALONE, MARY MALONE, HARRELL ALEXANDER, LILLIE MAE

AUCOIN, CLIVE BELCHER, HERSCHEL BLACKFORD, AUDREY J. BODINE,

CAROLYN BOLDING, LARRY E. BRANNEN, LLOYD B. BRANNEN,

HARROLD BROUSSARD, CURTIS BROWN, LLOYD BUTLER, J.A.

CAMPBELL, SHIRLEY CAMPBELL, WILLIAM E. CAMPBELL, RUSSELL

CASH, MARGARET COFFMAN, SARAH COFFMAN CHAMPION, NANCY

COFFMAN HANSON, MARY CIMRHANZEL, FRANK L. CIMRHANZEL, JR.,

ROBERT P. CIMRHANZEL, JOHN W. COPELAND, BILLY J. CROWELL,

JAMES DARTEZ, LOUISE J. DAVID, JOSEPH DAVID, JAMES DENBY, DREW

KEITH DODSON, TOMMIE L. EASLEY, FOSTER EDMONDSON, LYNDA

EVANS, FELIPA GALICIA, PATRICIA GAREFALOS, THOMAS GILLESPIE,

LELTON GREEN, GARY D. GREENE, ROLAND GUIDRY, EMMA J. HAMON,

NANCY C. HANSON, WILLIAM B. HARDY, JR., HILDA HARRIS, DAVID L.

HARTWELL, GERALD T. HARTWELL, TOMMIE L. HEATHMAN, ALLAN

HERRING, STEVEN HOSEA, ROBERT HRESKO, SHERRI R. HUGHES,

BOBBY JOHNSON, JR., AARON KENT KIMBELL, JOHN KYBURZ, MILTON

LABRY, JESSIE LADD, CARLTON LAGEMAN, C. DALE LANGSTON,

DONALD LAUVE, BILLY LEE, JOHN M. LUKER, WILLIAM D. LUKER, JR.,

DOROTHY WILLIAMS MURRAY, LUKE NAQUIN, JOSEPH L. NOBLES,

GRACE OVERSTREET, JERRY L. PERKINS, MARSHALL T. PETERSON,

THOMAS M. POWELL, JAMES I. RICHARDSON, GENE ROSS, SCOTT I.

ROSS, WILBURENE SAUNDERS, SHERMAN A. SEARLS, JR., GARVIN H.

SHIPLEY, BILLY J. SMALL, RICHARD C. SMITH, JR., MARY FERN

STURDIVANT, MILDRED SUTTON, EMILY C. TEASDALE, C. WAYNE

THOMPSON, MICHELE THOMPSON, GLENN THORNTON, RODNEY

THORNTON, NELSON E. TRUELOVE, JAMES W. TURLEY, JIMMY L.

UNGER, SR., HIPARCO VELA, JACKIE WADE, ROBBY WALLACE, MARY O.

WARD, DONALD G. WILLIAMS, JEFF A. WINN, JOE BOB WOLF,

AND JOE B. WOOD, Appellants

V.

ABRAHAM, WATKINS, NICHOLS & FRIEND, A PARTNERSHIP; ROBERT E.

BALLARD; ROBERT E. BALLARD, P.C.; LAW OFFICES OF ROBERT E.

BALLARD, P.C.; FRANK T. ABRAHAM; FRANK T. ABRAHAM, P.C.; DALE

FRIEND; DALE FRIEND, P.C.; NICK C. NICHOLS; NICK C. NICHOLS, P.C.;

RANDALL O. SORRELLS; DAVID P. MATTHEWS; DON WEITINGER; AND

W. COREY RICH, III, Appellees

On Appeal from the 189th District Court

Harris County, Texas

Trial Court Cause No. 98-32463 (Consolidated)

MEMORANDUM OPINION ON REHEARING

We vacate our judgment of July 24, 2002, withdraw our previous opinion, and

issue the following one in its stead. Appellants’ motion for rehearing is granted.

The 93 appellants, all former clients or co-workers of Abraham, Watkins,

Nichols & Friend, sued the firm and various attorneys under numerous causes of

action. The trial court granted appellees’ motions for summary judgment and

awarded sanctions against appellants’ trial counsel. We affirm.

Background

There are two sets of appellees in this lawsuit: (1) Abraham, Watkins, Nichols

& Friend and one of its partners, Robert E. Ballard (collectively “AWNF and

Ballard”),

and (2) Don Weitinger and W. Corey Rich, III (collectively “Weitinger

and Rich”).

All of the appellants were at one time clients of AWNF and Ballard and

Lawrence Madeksho as plaintiffs in asbestos litigation. Fibreboard, one of the

defendants in that litigation, settled with some of the plaintiffs and agreed to pay its

settlement proceeds in two equal installments. As agreed, AWNF and Ballard

received a portion of their attorneys’ fees when the first installment was paid. In the

interval between the two settlement installments, AWNF and Ballard withdrew from

further representation of the plaintiffs who had not settled and the plaintiffs who still

had pending cases in the trial courts against the remaining defendants. When

Fibreboard paid its second installment, Madeksho refused to pay AWNF and Ballard

their remaining attorneys’ fees. AWNF and Ballard then brought suit in contract

seeking payment of $1,029,756 in fees.

Weitinger and Rich represented Ballard, and Steven Watkins represented

AWNF, in their suits against Madeksho. The trial court granted summary judgment

for AWNF and Ballard, and the judgment was affirmed on appeal. Madeksho v.

Abraham, Watkins, Nichols & Friend , 57 S.W.3d 448 (Houston [14th Dist.] 2001,

pet. denied).

Madeksho and almost 100 plaintiffs involved in the asbestos cases filed 89

separate but virtually identical lawsuits against AWNF and Ballard, Weitinger and

Rich, and Watkins

complaining of their conduct in the fee dispute litigation. The

plaintiffs included Madeksho,

various claimants in the Fibreboard litigation, and four

claimants in the asbestos litigation against Owens-Corning Fiberglass. The petitions

alleged causes of action including: (1) professional negligence; (2) violation of a

confidential relationship; (3) actual and constructive fraud and misrepresentation; (4)

breach of fiduciary duty; (5) conspiracy; (6) gross negligence; (7) deliberate,

intentional, willful, and/or malicious conduct; (8) tortious interference with a

contract; (9) invasion of privacy; (10) intentional infliction of emotional distress; (11)

violations of State Bar rules; and (12) conversion and unjust enrichment.

The gravamen of their complaints was that AWNF and Ballard filed a

fraudulent lawsuit against Madeksho in the fee dispute litigation. The allegations

were also based on the disclosure of the Fibreboard settlement sheets to the trial

court. In addition, the petitions made allegations about the dissemination of other

information. The vast majority of the appellants were plaintiffs in the Fibreboard

litigation. Additionally, information for some asbestos clients who were not involved

in the Fibreboard settlement was disclosed. There is no evidence indicating that

AWNF and Ballard disseminated confidential information to the public, but

appellants argued that they were still entitled to recovery because AWNF and Ballard

could have disclosed such information to other persons.

Weitinger and Rich moved for summary judgment, arguing that non-clients

have no cause of action against someone else’s lawyer and that appellants lacked

standing. In December 1998, the trial court granted Weitinger and Rich’s motion for

summary judgment.

Lynda Evans, a former AWNF and Ballard client, sued AWNF and Ballard and

Weitinger and Rich after Weitinger and Rich’s summary judgment was granted.

Weitinger and Rich sought sanctions against Madeksho and Eric Bogdan,

appellants’ trial counsel. The trial court held a sanctions hearing but did not rule.

The trial court consolidated the Evans suit, the 89 appellants’ suits against

AWNF and Ballard, and Weitinger and Rich’s sanctions suit against Madeksho and

Bogdan. AWNF and Ballard and Weitinger and Rich moved for summary judgment,

and, in July 1999, the trial court granted the motions. In total, six motions for

summary judgment were granted.

AWNF and Ballard and Weitinger and Rich moved for sanctions against

Madeksho and Bogdan. During a July 1999 hearing, the trial court found the suits

were frivolous, groundless, and filed for harassment purposes and awarded $60,000

in sanctions.

Ballard later sought additional sanctions against Madeksho stemming

from another suit in which Ballard had sued Madeksho for libel and slander. In that

case, Madeksho filed a plea in intervention alleging the same facts the trial court had

previously found frivolous. Ballard sought, and was awarded, $10,000 in additional

sanctions.

Here, the appellants appeal from the decision of the trial court to grant the six

motions for summary judgment and the sanctions award.

I. Summary Judgment

A. Standard of Review

Summary judgment under rule 166a(c) is proper only when a movant

establishes that there is no genuine issue of material fact and that the movant is

entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Randall’s Food

Mkts., Inc. v. Johnson , 891 S.W.2d 640, 644 (Tex. 1995); Marchal v. Webb , 859

S.W.2d 408, 412 (Tex. App.—Houston [1st Dist.] 1993, writ denied). Once the

movant has established a right to summary judgment, the burden shifts to the non-movant. Marchal , 859 S.W.2d at 412 . The non-movant must respond to the motion

for summary judgment and present to the trial court any issues that would preclude

summary judgment. City of Houston v. Clear Creek Basin Auth. , 589 S.W.2d 671,

678 (Tex. 1979); Marchal , 859 S.W.2d at 412 .

In reviewing a summary judgment, we must indulge every reasonable inference

in favor of the non-movant and resolve any doubts in its favor, and we will assume

that all the evidence favorable to the non-movant is true. Johnson , 891 S.W.2d at

644 ; Marchal , 859 S.W.2d at 412 . To prevail on a rule 166a(c) motion for summary

judgment, a defendant must conclusively negate at least one of the essential elements

of each of the plaintiff’s causes of action or conclusively establish each essential

element of an affirmative defense. Cathey v. Booth , 900 S.W.2d 339, 341 (Tex.1995).

Under rule 166a(i) of the Texas Rules of Civil Procedure, a party may move for

summary judgment if there is no evidence of one or more essential elements of a

claim or defense on which an opposing party would have the burden of proof at trial

Tex. R. Civ. P . 166a(i). A trial court must grant a no-evidence motion for summary

judgment if the non-movant cannot produce more than a scintilla of evidence raising

a genuine issue of material fact. Flameout Design & Fabrication Inc. v. Pennzoil

Caspian Corp. , 994 S.W.2d 830, 834 (Tex. App.—Houston [1st Dist.] 1999, no pet.).

On review, we examine the record in the light most favorable to the non-movant. Id .

B. AWNF and Ballard

In point of error one, the appellants argue that the trial court erred when it

granted summary judgment to AWNF and Ballard.

AWNF and Ballard presented three grounds in their motion for summary

judgment: (1) the plaintiffs suffered no economic damages and cannot recover mental

anguish damages as a result of attorney negligence;

(2) no private cause of action

exists for violations of State Bar rules; and (3) any information disclosed was neither

confidential nor privileged, and disclosure was expressly authorized in the fee

dispute .

1. Damages

The appellants’ second amended petitions alleged that they had incurred

“actual and inherent damages,” for mental anguish due to AWNF and Ballard’s

conduct in the fee dispute litigation that followed the successful conclusion of the

appellants’ personal injury litigation. They sought forfeiture and disgorgement of all

fees previously received by AWNF and Ballard from their case. In addition, the

appellants alleged that they were entitled to exemplary damages as a result of being

“stabbed in the back.” The appellants received all the settlement funds to which they

were entitled as a result of the asbestos litigation. The fee dispute between Madeksho

and AWNF and Ballard, therefore, had no direct impact on the appellants.

In their motion for summary judgment, AWNF and Ballard argued that, as a

matter of law, there was no evidence to show that their conduct in the fee dispute

caused the appellants damages. See Tex. R. Civ. P . 166a(i). On appeal, AWNF and

Ballard argue that the Texas Supreme Court has held that purely emotional damages

resulting from attorney negligence are not recoverable, citing Douglas v. Delp , 987

S.W.2d 879 (Tex. 1999).

We do not agree that the holding in Douglas was as broad as AWNF and

Ballard claim. In fact, the Douglas court held that, “when a plaintiff’s mental anguish

is a consequence of economic losses caused by an attorney’s negligence, the plaintiff

may not recover damages for that mental anguish.” Id . at 885 (emphasis added).

Here, the appellants have produced no evidence of mental anguish — resulting from

economic loss or otherwise.

The appellants’ causes of action for negligence, gross negligence, intentional

infliction of emotional distress, civil conspiracy, fraudulent misrepresentation,

tortious interference with contract, unjust enrichment, invasion of privacy,

conversion, and deliberate, intentional, willful, and/or malicious conduct all require

proof of damages. Because the appellants offered no proof of damages, they were

properly disposed of by way of summary judgment. See Fortune Prod. Co. v.

Conoco, Inc. , 52 S.W.3d 671, 685 (Tex. 2000) (unjust enrichment); GTE Southwest,

Inc. v. Bruce , 998 S.W.2d 605, 611 (Tex. 1999) (intentional infliction of emotional

distress); Thapar v. Zezulka , 994 S.W.2d 635, 637 (Tex. 1999) (negligence); Powell

Indus., Inc. v. Allen , 985 S.W.2d 455, 456 (Tex. 1998) (tortious interference with

contract); Latham v. Castillo, 972 S.W.2d 66, 70 (Tex. 1998) (fraudulent

misrepresentation); United Mobile Networks, L.P. v. Deaton , 939 S.W.2d 146, 148

(Tex. 1997) (conversion); Parkway Co. v. Woodruff , 901 S.W.2d 434, 444-46 (Tex.

1995) (malicious conduct); Massey v. Armco Steel Co. , 652 S.W.2d 932, 934 (Tex.

1983) (civil conspiracy); Billings v. Atkinson , 489 S.W.2d 858, 861 (Tex. 1973)

(invasion of privacy); Giraud v. Moore , 26 S.W. 945, 946 (1894) (gross negligence).

The appellants assert that they need not show they were damaged by AWNF

and Ballard’s dissemination of confidential information which, they claim, constituted

a breach of fiduciary duty. The appellants are correct that the Texas Supreme Court

has held that a client need not prove actual damages in order to obtain forfeiture of

an attorney’s fee for the attorney’s breach of a fiduciary duty to the client. Burrow

v. Arce , 997 S.W.2d 229, 240 (Tex. 1999). However, the remedy is restricted to

“clear and serious” violations of duty. Id . ( citing Restatement (Third) of The Law

Governing Lawyers § 49 (Proposed Final Draft No. 1, 1996)). Some violations are

inadvertent or do not significantly harm the client. Id .

Here, Weitinger testified, by way of affidavit, that he attached the settlement

sheets as an exhibit to Abraham Watkins’s response to Madeksho’s motion for

summary judgment. He believed that he had filed the attachments under seal. During

Weitinger’s deposition, Madeksho asked him questions that lead Weitinger to believe

the attachments may not have been submitted under seal. The same day as the

deposition, Weitinger went to the courthouse to determine if, in fact, the settlement

sheets were inadvertently not sealed. His affidavit indicates that he was unable to

access the file because it was still in the intake process. He spoke with the trial judge

who agreed that, once the documents arrived in her courtroom, she would hold them

until Weitinger drafted a motion to seal. He filed a motion to seal, and the trial court

granted the motion that same day that the documents arrived in her courtroom. There

is no evidence that the records were ever accessible to the public. Summary judgment

was properly granted on the fiduciary duty cause of action.

The only remaining cause of action was for alleged violations of the State Bar

rules.

2. State Bar Rules

In their second amended petition, the appellants alleged professional

negligence and gross negligence per se. The petition stated, in part, as follows:

The Texas Supreme Court has adopted the position of Section 288B of

the Restatement (Second) of Torts that the violation of a legislative

enactment or an administrative regulation which is adopted by the court

as defining the standard of conduct of a reasonable man, is negligence

itself. In that regard, [AWNF and Ballard] knowingly and intentionally

violated, among other things, the following Texas Disciplinary Rules of

Professional Conduct promulgated by the Texas Supreme Court: Rule

1.03, Rule 1.04, Rule 1.05, Rule 1.06, Rule 1.08(e), Rule 1.14, Rule

1.15, Rule 2.01, Rule 3.01, Rule 3.03, Rule 5.03 and Rule 8.04.

The appellants neglect to mention that the Texas Disciplinary Rules expressly

state that a violation of the Code of Professional Responsibility does not give rise to

a private cause of action. See Tex. Disciplinary R. Prof’l Conduct 1.05 preamble

¶ 15; Judwin Props., Inc. v. Griggs & Harrison, P.C. , 981 S.W.2d 868, 869-70 (Tex.

App.—Houston [1st Dist.] 1998), pet. denied , 11 S.W.3d 188 (Tex. 2000). Thus, the

State Bar Rules are not enforceable through the appellants’ negligence claim. See

Judwin , 981 S.W.2d at 870.

Having determined that the appellants failed to present any evidence of

damages and that violations of State Bar Rules do not create private causes of action,

we need not determine whether the information allegedly released by AWNF and

Ballard was privileged or confidential.

We overrule point of error one.

C. Weitinger and Rich

In points of error two, three, four, and five, the appellants contend that the trial

court erred when it granted summary judgments in favor of Weitinger and Rich in

December 1998 and July 1999.

In 1998, Weitinger and Rich filed separate summary judgment motions arguing

that: (1) the appellants, as non-clients, lacked standing to sue and had no right of

recovery against Weitinger and Rich for any alleged wrongful conduct; (2) they were

immune from liability to their clients’ adversary as a matter of law; and (3) the

appellants were barred from bringing a private cause of action for violations of State

Bar Disciplinary Rules.

The trial court granted the motions without designating a

reason.

After the trial court granted Weitinger’s and Rich’s first motions for summary

judgment, 10 additional plaintiffs intervened in the case alleging the same causes of

action. Also, two more cases were consolidated with this case after summary

judgment had been granted. In 1999, Weitinger and Rich filed a joint motion for

summary judgment arguing that, as a matter of law, the appellants’ case fails because

the appellants have no standing and Weitinger and Rich are immune from liability.

The trial court also granted the joint motion without stating a reason.

1. Standing

An attorney owes a duty only to those in privity with him. Dickey v. Jansen ,

731 S.W.2d 581, 582 (Tex. App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.). An

attorney, therefore, owes a duty of care only to his client, not to third parties. Barcelo

v. Elliott , 923 S.W.2d 575, 577 (Tex. 1996). Only a person with whom the attorney

has privity has standing to sue for malpractice. Barcelo v. Elliot , 927 S.W.2d 28, 30

(Tex. App.—Houston [1st Dist.] 1995), aff’d, 923 S.W.2d 575 (Tex. 1996);

Thompson v. Vinson & Elkins , 859 S.W.2d 617, 621 (Tex. App.—Houston [1st Dist.]

1993, writ denied); Dickey , 731 S.W.2d at 582-83 . Intermediate courts of this state

have applied this principal to preclude recovery under both tort and third-party

beneficiary theories. See Thompson , 859 S.W.2d at 620 (professional negligence);

Dickey , 731 S.W.2d at 582-83 (professional negligence and third-party beneficiary

theories).

For purposes of a claim for professional negligence, “privity” means the

contractual connection or relationship that exists between the attorney and the client.

See Dickey , 731 S.W.2d at 582 . “Texas law does not recognize a cause of action for

negligence against an attorney asserted by one not in privity with that attorney[.]”

Id .; see Thompson , 859 S.W.2d at 621 . Texas cases “have consistently held that third

parties have no standing to sue attorneys on causes of action arising out of their

representation of others.” Dickey , 731 S.W.2d at 582-83.

In Dickey , testamentary trust beneficiaries brought a cause of action for

professional negligence against the testator’s attorney and law firm for negligent

preparation of a trust provision. Id . at 582. The trust provision at issue was to have

included mineral interests in Louisiana, but the provision was invalid under Louisiana

law. Id . The defendants moved for summary judgment, arguing that “an attorney is

not liable to . . . those not in privity to attorneys . . . for alleged failure to perform

duties which the attorney owes only to his clients.” Id . The trial court granted the

defendants’ motion. Id . This Court affirmed, rejecting the plaintiffs’ argument that

they were entitled to maintain their action as third-party beneficiaries to the

employment contract between the testator and the attorney. Id .

Weitinger and Rich never represented the appellants and were sued simply

because they represented AWNF and Ballard in the fee dispute lawsuit against

Madeksho. Therefore, the appellants lack standing to bring suit against Weitinger

and Rich.

2. Immunity

Texas case law frowns on suing opposing counsel simply for representing a

party in a judicial proceeding. Bradt v. Sebek , 14 S.W.3d 756, 766 (Tex.

App.—Houston [1st Dist.] 2001, pet. denied); see , e.g., Likover v. Sunflower Terrace

II, Ltd. , 696 S.W.2d 468, 472 (Tex. App.—Houston [1st Dist.] 1985, no writ); Morris

v. Bailey , 398 S.W.2d 946, 947 (Tex. App.—Austin 1966, writ ref’d n.r.e.) . An

attorney is immune from civil liability, as to non-clients, for any actions taken in

connection with representing his client in litigation. See Butler v. Lilly , 533 S.W.2d

130, 131-34 (Tex. App.—Houston [1st Dist.] 1976, writ dism’d) (statements made

during jury argument). An attorney is charged with the duty of zealously representing

his clients within the bounds of the law. Bradt v. West , 892 S.W.2d 56, 71-72 (Tex.

App.—Houston [1st Dist.] 1994, writ denied). In fulfilling his duties, he has the right

to interpose any defense and take advantage of any legal right on the client’s behalf

that he deems necessary and proper, without being subjected to liability or damages.

Id . If an attorney could be held liable for statements made, or actions taken, in the

course of representing his client, he would be forced to balance his own potential

exposure against his client’s best interest. See id. Such a conflict would necessarily

hamper justice.

Weitinger and Rich never represented the appellants, had no relationship with

the appellants, and, thus, owed them no duty. Weitinger hired Rich on a contract

basis primarily for research and some fee-splitting analysis. Rich never served as

attorney of record and never participated in any oral arguments.

There is an exception to the immunity bar which arises only when an attorney

has engaged in intentional misconduct. McCamish, Martin, Brown & Loeffler v. F.

E. Appling Interests , 991 S.W.2d 787, 794 (Tex. 1999). The appellants presented no

evidence that such an exception applies in this case.

Weitinger and Rich are immune from liability to the appellants.

3. Disciplinary Rules

As discussed above, alleged violations of the State Bar Disciplinary Rules do

not give rise to private causes of action. See Judwin , 981 S.W.2d at 870.

The trial court properly granted Weitinger’s and Rich’s motions for summary

judgment.

We overrule points of error two, three, four, and five.

II. Sanctions

In points of error seven and eight, Madeksho and Bogdan argue that the trial

court abused its discretion by granting the various motions for sanctions against them.

A. Standard of Review

This Court reviews a trial court’s rule 13 sanctions order under an abuse of

discretion standard. Laub v. Pesikoff , 979 S.W.2d 686, 693 (Tex. App.—Houston

[1st Dist.] 1998, pet. denied). Our test for abuse of discretion is deferential to the trial

court—whether the court acted without reference to any guiding rules and principles.

Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 241-42 (Tex. 1985).

Therefore, “[i]t is not necessarily an abuse of a trial court’s discretion if under the

same facts we would decide the matter differently, or if the court committed a mere

error in judgment.” Sebek , 14 S.W.3d at 761 . Moreover, the trial court’s discretion

is limited only by the requirement that its order be just and that the sanctions imposed

be directly related to the harm done by the sanctioned conduct. Ray v. Beene , 721

S.W.2d 876, 879 (Tex. App.—Houston [1st Dist.] 1986, writ ref’d n.r.e.).

B. Discussion

Appellants complain that the sanctions were excessive, the claims were not

groundless, and there was no evidence to rebut the presumption that the claims were

not brought in bad faith. In total, the appellants were sanctioned $70,000. The

testimony included the following: (1) Rich incurred $43,074 in expenses and had lost

$10,068.04 in billable time due to the demands of this suit; (2) Weitinger incurred

over $50,000 in defense costs; and (3) AWNF and Ballard incurred over $150,000 in

defense costs and $29,000 in out-of-pocket expenses and lost fees. In addition, the

appellants filed 89 virtually identical frivolous suits, as discussed above.

A trial court’s rule 13 sanctions order must be upheld if any of the facts set

forth by the court support the sanctions. Sebek , 14 S.W.3d at 764 . Appellants argue

their lawsuits were not pursued in bad faith; however, the multitude of frivolous

claims and their continued harassment of the appellees support the trial court’s order

sanctioning appellants.

Appellants further complain that the trial court did not sufficiently specify the

good cause supporting the sanctions order; however, appellants failed to make a

timely objection at trial and have waived their right to complain.

Tex. R. App. P.

33.1; Texas-Ohio Gas v. Mecom , 28 S.W.3d 129, 135 (Tex. App.—Texarkana 2000,

no writ).

C. Additional Sanctions

Appellants also complain about the additional sanctions stemming from

Madeksho’s plea in intervention in the Brazoria County case. Madeksho filed a plea

in intervention alleging the same facts the trial court had previously found frivolous,

and Ballard sought, and was awarded, $10,000 in additional sanctions.

Appellants rely on Johnson v. Smith , 857 S.W.2d 612 (Tex. App.—Houston

[1st Dist.] 1993, no writ) for the proposition that the trial court was without

jurisdiction to award additional sanctions for appellants’ filing another case in

another jurisdiction. Johnson is distinguishable. In that case, we held that a trial

judge presiding in his own court was without jurisdiction to impose sanctions on a

party for violation of another court’s order. Id . at 618. In contrast, here, the court did

not impose a sanction for violation of another court’s order, but imposed a sanction

for committing the same conduct for which the court had just admonished him —

filing frivolous lawsuits.

We held, in Miller v. Armogida , 877 S.W.2d 361, 364 (Tex. App.—Houston

[1st Dist.] 1994, writ denied), that, under the “just sanctions” provision, the court

could impose sanctions on a party to prevent him from filing the same claims in

another court. In Miller , the trial court imposed an injunction on a party to prevent

him from filing the same claim in another court. Id . Here, as in Miller , the trial court

that found the initial 89 claims frivolous should not have to sit idly by while

Madeksho files a multitude of the same claims in another court. See id . Madeksho

had already filed the claim, so the next logical remedy was to impose sanctions under

rule 13.

We overrule points of error seven and eight.

III. Discovery Master

In point of error nine, the appellants contend that the trial court erred when it

adopted the finding of the court-appointed discovery master regarding the attorney-client privilege.

To expedite the disposition of cases, a trial court may delegate pretrial matters

to a master to allow the trial judge to devote more time to trials and substantive

issues. Simpson v. Canales , 806 S.W.2d 802 , 809 n.9 (Tex. 1991) ; Hansen v.

Sullivan , 886 S.W.2d 467, 469 (Tex. App.—Houston [1st Dist.] 1994, orig.

proceeding). A party objecting to a master’s appointment must make an objection not

within some arbitrary time period, but before it has taken part in the proceedings

before the master or before the parties, the master, and the court have acted in reliance

on the master’s appointment. Owens-Corning Fiberglas Corp. v. Caldwell , 830

S.W.2d 622 , 625 (Tex. App.—Houston [1st Dist.] 1991, orig. proceeding).

On December 7, 1998, during an unrelated hearing, the trial court suggested

that it “sign an order appointing Judge Soussan as the master so you can get the next

deposition taken.” The trial court specifically asked, “Is there anyone here that now

would object to the appointment of Susan Soussan as the master in chancery to

preside?” The appellants said they did not know Judge Soussan, but they lodged no

objection. On December 10, the trial court signed the order appointing the special

master. On January 19, 1999, the master conducted two separate telephone hearings

addressing issues that arose during two depositions. Rulings were made and accepted

by the parties.

The appellants’ brief states “the defendants complained to [the master] that

Madeksho had asserted the attorney-client privilege on behalf of [an appellant] during

[that appellant’s] deposition.”

On April 9, 1999, the master notified the parties that

she would conduct a hearing on that issue. The appellants informed the master that

they would not be attending the hearing because they were objecting to her

appointment and did not want to waive the objection by participating in the hearing.

However, the appellants’ objection was untimely, as it was not made until three

months after rulings had been made on other discovery disputes. See id.

The record from the April hearing, reflects that the appellants did not attend the

hearing. During the hearing, Judge Soussan indicated that there had been two special

master hearings in the case, both of which took place on January 19, 1999. Judge

Soussan was called twice on the same day to rule on objections that were lodged

during two different depositions. Judge Soussan made rulings on the telephone, and

she believed that the rulings were “accepted by all parties.” Judge Soussan further

stated that on March 31, 1999 she notified all parties that she would be conducting

a hearing on all discovery disputes. The appellants responded and indicated that they

had concerns about appearing before Judge Soussan because such an appearance

would waive any objection they might have to the appointment of a master. Judge

Soussan responded to the appellants’ letter by reminding them that they had already

“made appearances before the special master of several occasions which by their

presence and participation acknowledged [her] appointment as special master.”

Because they chose not to participate in the hearing, and thus did not present

any evidence to support their objection to the discovery sought, the appellants waived

their complaint and present nothing for appellate review. See Tex. R. Civ. P . 199.6

We overrule point of error nine.

Conclusion

We affirm the judgment.

Davie L. Wilson

Justice

Panel consists of Justices Nuchia and Wilson.