# in Re George Green and Garlan Green > Texas Court of Appeals, 3rd District (Austin) · January 12, 2015 URL: https://www.frixlaw.com/law-library/cases/4041012 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** January 12, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4041012 ## Opinion text ACCEPTED 03-14-00725-CV 3737749 THIRD COURT OF APPEALS AUSTIN, TEXAS 1/12/2015 4:19:03 PM JEFFREY D. KYLE CLERK No. 03-14-00725-CV FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS In the Third Court of Appeals 1/12/2015 4:19:03 PM Austin, Texas JEFFREY D. KYLE Clerk GEORGE GREEN AND GARLAN GREEN, Appellants v. PORT OF CALL HOMEOWNERS ASSOCIATION Appellee APPEAL FROM CAUSE NO. 18314 RD 33 JUDICIAL DISTRICT COURT OF LLANO COUNTY, TEXAS HON. ALLAN GARRETT, PRESIDING APPELLANTS’ BRIEF David Junkin State Bar No. 11058020 Law Office of David Junkin P.O. Box 2910 Wimberley, Texas 78676 512/847-8600 512/847-8604 (fax) david@junkinlawoffice.com Attorney for Appellants ORAL ARGUMENT (CONDITIONALLY) REQUESTED STATEMENT REGARDING ORAL ARGUMENT Appellants believe that the briefs and records will adequately present the facts and legal arguments involved in this appeal and that oral argument would not aid the decisional process significantly. See Tex. R. App. P. 39.1. However, should the Court conclude that oral argument would be helpful, Appellants stand ready and request the opportunity to participate. i IDENTITY OF PARTIES AND COUNSEL The following is a complete list of all parties to the trial court’s order at issue, as well as the names and addresses of all trial and appellate counsel. Plaintiff/Appellants: Counsel for Appellants: George Green David Junkin Garlan Green P.O. Box 2910 Wimberley, Texas 78676 Defendant/Appellees: Counsel for Appellees: Port of Call Homeowners Association Brantley Ross Pringle, Jr. Randolph Harig Heidi Coughlin Phillip Jacobs Wright & Greenhill, PC John Ross Buckholtz 221 West 6th Street, Suite 1800 Richard Pat McElroy Austin, TX 78701 ii TABLE OF CONTENTS Index of Authorities ..................................................................................... vi Statement of the Case ....................................................................................1 Issues Presented A. DID THE TRIAL COURT ABUSE ITS DISCRETION IN HOLDING A HEARING ON THE MOTION TO ENFORCE THE PROTECTIVE ORDER WHICH SOUGHT SANCTIONS AS RELIEF WITH LESS THAN 3 DAYS’ NOTICE TO APPELLANTS? .....................................3 B. DID THE TRIAL JUDGE ABUSE HIS DISCRETION IN ENTERING AN ORDER PROHIBITING APPELLANTS FROM MAKING ANY COMMUNICATIONS TO APPELLEES, EXCEPT THROUGH ATTORNEYS OF RECORD? ................................................................................. 3 C. THE ORDER THAT IS THE BASIS OF THIS APPEAL EXTENDED THE TIME FOR APPELLEE PORT OF CALL HOMEOWNERS’ ASSOCIATION TO PRODUCE RECORDS FROM EVERY FORTY-FIVE (45) DAYS TO EVERY SIXTY (60) DAYS BEGINNING NOVEMBER 15, 2014. DID THE TRIAL JUDGE ABUSE HIS DISCRETION IN CHANGING THE TIME FOR PRODUCTION OF RECORDS IN THIS CASE NUNC PRO TUNC? .......................................................................................3 D. DID THE TRIAL JUDGE ERR IN SANCTIONING APPELLANTS WITHOUT ANY EVIDENCE TO SUPPORT THE AWARD? ..................3 Background ....................................................................................................4 iii Summary of the Argument ...........................................................................5 Standard of Review ........................................................................................5 Argument A. THE TRIAL COURT ABUSED ITS DISCRETION IN HOLDING A HEARING ON THE MOTION TO ENFORCE THE PROTECTIVE ORDER, WHICH SOUGHT SANCTIONS AS RELIEF, WITH LESS THAN THREE (3) DAYS’ NOTICE TO APPELLANTS ..........................................................................5 B. THE TRIAL COURT ABUSED ITS DISCRETION IN ENTERING AN ORDER PROHIBITING APPELLANTS FROM HAVING ANY COMMUNICATIONS WITH APPELLEES EXCEPT THROUGH ATTORNEYS OF RECORD .................................................. 7 i. THE ORDER IS AN UNCONSTITUTIONAL PRIOR RESTRAINT ON FREE SPEECH ............................7 ii. THE REQUIREMENTS FOR INJUNCTIVE RELIEF WERE NOT ESTABLISHED............................... 10 C. THE TRIAL COURT IMPROPERLY EXTENDED THE TIME FOR THE APPELLEE PORT OF CALL HOME OWNERS ASSOCIATION TO AUTOMATICALLY PRODUCE RECORDS FROM EVERY FORTY-FIVE (45) DAYS TO EVERY SIXTY (60) DAYS ................................................... 10 D. THE TRIAL COURT ERRED IN SANCTIONING APPELLEES WITHOUT ANY EVIDENCE TO SUPPORT THE AWARD .................................................................................. 13 iv Conclusion and Prayer ............................................................................... 15 Certificate of Service .................................................................................. 17 Appendix Order Granting Motion for Enforcement (the “Order”) ................ Tab 1 Order Granting Defendants’ Motion to Compel and Protective Order (the “Initial Order”) ..................................... Tab 2 Cases .............................................................................................. Tab 3 Statutes........................................................................................... Tab 4 Rules .............................................................................................. Tab 5 v INDEX OF AUTHORITIES Case Law Page(s) Alexander v. United States, 509 U.S. 544, 113 S. Ct. 2766, 125 L.Ed.2d 441 (1993) ........................ 8 Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963) ................................... 8 Burton v. Cravey, 759 S.W.2d 160 (Tex. App.—Houston [1st Dist.] 1988, no writ). .. 11, 12 Davenport v. Garcia, 834 S.W.2d 4 (Tex. 1992) ....................................................................... 8 Ex parte Chambers, 898 S.W.2d 257 (Tex. 1995) ................................................................. 15 Ex parte Price, 741 S.W.2d 366 (Tex. 1987) ................................................................. 15 Ex parte Tucker, 110 Tex. 335, 220 S.W. 75 (Tex. 1920). ............................................. 8, 9 Hajek v. Bill Mowbray Motors, Inc., 647 S.W.2d 253 (Tex. 1983) ................................................................... 8 Huie v. DeShazo, 922 S.W.2d 920 (Tex. 1996) ................................................................... 7 Kinney v. Barnes, 443 S.W.3d 87 (Tex. 2014) .............................................................. 8, 9, 10 Kutch v. Del Mar College, 831 S.W.2d 506 (Tex. App. —Corpus Christi 1992, no writ) .............. 13 McWhorter v. Sheller, 993 S.W.2d 781 (Tex. App. —Houston [14th Dist.] 1999, pet. denied).13 vi Nath v. Texas Children’s Hospital, Cause No. 12-0620 (Tex. August 29, 2014) ........................................... 7 Neb. Press Ass'n v. Stuart, 427 U.S. 539, 96 S. Ct. 2791, 49 L.Ed.2d 683 (1976) ............................ 8 San Antonio Models, Inc. v. Peeples, 686 S.W.2d 666 (Tex. App.—San Antonio 1985, orig. proceeding).... 11 Sobel v. Taylor, 640 S.W.2d 704 (Tex. App—Houston [14th Dist.] 1982, no writ) .......... 10 Sprague v. Sprague, 363 S.W.3d 788 (Tex. App.—Houston [14th Dist.] 2012, pet denied)..13 Town of Palm Valley v. Johnson, 87 S.W.3d 110, 111 (Tex. 2001) ............................................................. 9 TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex. 1991) .......................................................................7 Statutes Tex. Const. art. I, § 8 ......................................................................................... 8 Tex. Const. art. I, § 8 interp. Commentary (West 2007) ................................... 8 Tex. Prop. Code § 81.209 ................................................................................ 11 Tex. Prop. Code § 82.114 ................................................................................ 11 Tex. Bus. Org. Code § 22.351 ......................................................................... 11 Tex. Bus. Org. Code § 252.010 ....................................................................... 11 Rules Tex. R. Civ. P. 4............................................................................................. 5, 6 vii Tex. R. Civ. P. 21........................................................................................... 5, 6 Tex. R. Civ. P. 682........................................................................................... 10 Tex. R. Civ. P. 683........................................................................................... 10 Tex. R. Civ. P. 684........................................................................................... 10 Other A. Bickel, the Morality of Consent 61 (1975) ................................................... 8 viii TO THE HONORABLE THIRD COURT OF APPEALS: Appellants, George Green and Garlan Green file this brief asking the Court to reverse or dissolve the trial court’s order granting injunctive and related relief based on the following: STATEMENT OF THE CASE Order Signed by: The Honorable Allan Garrett Trial Court: 33rd Judicial District Court Appellants: Appellant Garlan Green is a property owner in the Port of Call townhome development in Horseshoe Bay, Texas. Appellant George Green is Garlan Green’s son, lives with Garlan Green as a caretaker, and has power of attorney for Garlan Green. The Appellants are referred to as “Apellants” or “Green.” Appellees: Appellee Port of Call Homeowners Association (“POC”) is the homeowners association of the Port of Call development and was an unincorporated association of persons until November, 2013 when it incorporated as a non-profit corporation. The individual Appellees, Randolph Harig, Phillip Jacobs, John Ros Buchholtz, and Richard Pat McElroy are current or former members of the Port of Call Homeowners Association board of directors. Nature of the Case: This controversy essentially began as a request for review of POC records due to what Appellants believed to be misuses of POC funds. When Appellants believed they were deprived of full access to the records, Appellants brought a claim in Justice Court in Llano County under the Property Code for access to the records. The Appellants’ Brief – Page 1 Justice Court ordered the documents produced and entered judgment against POC for attorney’s fees and court costs. See CR 100; RR, Vol. 2, Page 7, lines 4 – 23 and Page 15, line 25 – page 16, line 18. The review of those records led to the instant suit for misuse of funds by POC and individual members of its board of directors. Course of Proceedings: This case was filed on February 5, 2013. CR 8. The case was, by agreement, abated for several months to try to resolve the matter. Discovery progressed and new parties were joined and new claims added. CR 67 (Plaintiff’s First Amended Original Petition, Request for Equitable Relief & Request for Disclosure) and CR136 (Plaintiff’s Second1 Amended Original Petition, Request for Equitable Relief & Request for Disclosure). In connection with discovery issues, both parties filed Motions to Compel. CR 89 and CR 100. A hearing was held on those motions on August 14, 2014. The Trial Court summarized its findings (RR, Vol. 2, page 52, line 9 - page 62, line 11) and an Order was entered (the “Initial Order”). CR 131. The Initial Order was an attempt by the Court to fashion a compromise between the broad rights of access to POC’s records under the Texas Property Code and the POC governing documents and the discovery obligations imposed on litigants by ordering the automatic production of POC records every forty-five (45) days. No objection was made to the Initial Order by any party. On October 10, 2014, POC served Defendants’ Motion to Enforce Protective Order and set the matter for hearing on October 14, 2014. CR153 and 167. The motion was generally based on letter requests for records made after the Initial Order. Appellants objected to the setting because it failed 1 Incorrectly styled as Plaintiff’s First Amended Original Petition, Request for Equitable Relief & Request for Disclosure (emphasis added). Appellants’ Brief – Page 2 to give the required three (3) days’ notice under the Texas Rules of Civil Procedure. CR 145. Objection was made at the hearing as well and that objection was overruled. RR, Vol. 3, page 4, line 12 – page 15. The hearing was conducted as a non-evidentiary hearing. After the hearing, POC filed Defendants’ Supplemental Motion to Enforce Protective Order. CR 169. Trial Court’s Disposition: On October 21, 2014, the Court entered an Order Granting Motion for Enforcement which modified the Initial Order “nunc pro tunc,” imposed injunctive relief against Appellants, extended the automatic record supplementation to every sixty (60) days, and awarded sanctions against Appellants. CR 175. It is this order that forms the basis of this appeal (the “Order”). ISSUES PRESENTED A. The Court held a hearing on the Order with less than three (3) days’ notice under Rules 4 and 21 of the Texas Rules of Civil Procedure. Did the trial judge correctly overrule Appellants’ objection to the defective notice? B. The Order requires, among other things, that “all communications between the parties be had through attorneys of record” and Appellants are ordered not to communicate with any Appellee for any reason at all. Did the trial judge abuse his discretion in entering an order prohibiting any communication except through attorneys? C. The Order extended the time for POC to produce records to “every sixty (60) days beginning November 15, 2014.” Did the trial judge abuse his discretion in changing the time for production of records in this case, as a nunc pro tunc order? D. Did the trial judge err in entering sanctions without any evidence of costs incurred, fees expended, etc.? Appellants’ Brief – Page 3 BACKGROUND As a property owner in the Port of Call development and his agent, Appellants, exercising their rights by way of the POC governing documents and under Texas statutes, began requesting inspection of POC records. Ultimately, Appellants believed they were intentionally being deprived of full access to the records, so Appellants brought a claim under the Property Code in Justice Court in Llano County for access to the records. The Justice Court ordered the documents produced and entered judgment against POC for over $3,000 in attorney’s fees and court costs. See CR 100; RR, Vol. 2, Page 7, lines 4 – 23 and Page 15, line 25 – page 16, line 18. The review of those records led to this suit for misuse of funds by POC and individual members of its board of directors. In response to a motion for protection and motions to compel filed by both Appellants and Appellees, in August, 2014 the Court entered the Initial Order. In October, 2014 the Appellees filed, and with essentially one day notice under the rules, set for hearing a motion to enforce the Initial Order. No evidence was introduced at the hearing by Appellees. The Court then entered the Order “nunc pro tunc”2 prohibiting any communication of any kind by Appellants (their agents, heirs, etc.) with the Appellees (their agents, heirs, etc.), modifying the Initial Order, and awarding sanctions against Appellants. 2 CR 175. Appellants’ Brief – Page 4 SUMMARY OF THE ARGUMENT The Order was entered after a hearing held on less than the three (3) days’ notice required by Rules 4 and 21 of the Texas Rules of Civil Procedure despite sanctions being the only relief requested by Appellees, the unavailability of Appellants, and no evidence being presented by Appellees. By prohibiting any communication of any kind between Appellants and Appellees, except through attorneys, the Order is overly broad and unconstitutionally prohibits the exercise of free speech by Appellants. The Order also improperly, and without a pleading or evidence from the Appellees to support it, modified the terms of the Initial Order and extended the time for Appellees to produce records from forty-five (45) days to sixty (60) days. There was no evidence to support an award, or the amount, of sanctions against Appellants. STANDARD OF REVIEW The issues raised by Appellants are governed by an abuse of discretion standard. ARGUMENT A. THE TRIAL COURT ABUSED ITS DISCRETION IN HOLDING A HEARING ON THE MOTION TO ENFORCE THE PROTECTIVE ORDER WHICH SOUGHT SANCTIONS AS RELIEF, WITH LESS THAN THREE (3) DAYS’ NOTICE TO APPELLANTS. 1. Rule 21 of the Texas Rules of Civil Procedure provides: “[a]n application to the court for an order and notice of any hearing thereon, not Appellants’ Brief – Page 5 presented during a hearing or trial, must be served upon all other parties not less than three days before the time specified for the hearing, unless otherwise provided by these rules or shortened by the court.” In computing the three day period in Rule 21, the day of the notice is not to be included and “the last day of the period so computed is to be included, unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or legal holiday.” Tex. R. Civ. P. 4. 2. On October 10, 2014, Appellees served Defendants’ Motion to Enforce Protective Order and at the same time set the matter for hearing on October 14, 2014. CR153 and 167. Green objected to the setting because it failed to give the required three (3) days’ notice under Texas Rules of Civil Procedure 4 and 21. CR 145. October 10, 2014 was a Friday and Monday, October 13, 2014 was a federal holiday (Columbus Day). With the hearing held on October 14, 2014 the Appellants got one (1) day notice under the Texas Rules of Civil Procedure. Appellee claimed no further notice should be given due to the impending birth of a child in 25 days and because receiving letters from Appellants asking for a response in three (3) days constituted an emergency. RR, Vol. 3, page 5, line 6 – page 8. Appellants were not able to attend the hearing. However, Appellants’ objections to the short notice were overruled. RR, Vol. 3, page 4, line 12 – page 15. Appellants’ Brief – Page 6 3. There was no evidence introduced showing the necessity for shortening the notice requirements. The Appellees did not show how the impending birth of a child prohibited Appellee from giving proper notice. The Appellees did not show how the receipt of a letter seeking a response in three days constituted an “emergency,” particularly when Appellee did not establish it intended to respond to such communication within the time period and the time period had already passed as of the time of the hearing. 4. The relief sought in Appellees’ Motion to Enforce Protective Order was sanctions for alleged violations of the Initial Order. CR 154. While the Court has discretion with respect to shortening the time for a hearing, the relief sought by Defendants further implicated due process protections requiring Appellees to provide Appellants with, at a minimum, three (3) days’ notice of the hearing.3 B. THE TRIAL JUDGE ABUSED HIS DISCRETION IN ENTERING AN ORDER PROHIBITING APPELLANTS FROM MAKING ANY COMMUNICATIONS TO APPELLEES, EXCEPT THROUGH ATTORNEYS OF RECORD. i. The Order is an unconstitutional prior restraint on free speech. 5. The prior restraint of free speech is presumptively overly broad and unconstitutional. As the Texas Supreme Court recently reiterated: 3 A sanctions award that fails to comply with due process constitutes an abuse of discretion because a trial court has no discretion in determining what the law is or applying the law to the facts. See Nath v. Texas Children’s Hospital, Case No. 12- 0620 (Tex. 2014), citing, TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991); Huie v. DeShazo, 922 S.W.2d 920, 927 (Tex. 1996). Appellants’ Brief – Page 7 "Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press." Tex. Const. art. I, § 8. Enshrined in Texas law since 1836, this fundamental right recognizes the "transcendent importance of such freedom to the search for truth, the maintenance of democratic institutions, and the happiness of individual men." Tex. Const. art. I, § 8 interp. commentary (West 2007). Commensurate with the respect Texas affords this right is its skepticism toward restraining speech. While abuse of the right to speak subjects a speaker to proper penalties, we have long held that "pre-speech sanctions" are presumptively unconstitutional. Davenport v. Garcia, 834 S.W.2d 4, 9 (Tex. 1992); see also Ex parte Tucker, 110 Tex. 335, 220 S.W. 75, 76 (Tex. 1920). The First Amendment of the U.S. Constitution is similarly suspicious of prior restraints, which include judicial orders "forbidding certain communications" that are "issued in advance of the time that such communications are to occur." Alexander v. United States, 509 U.S. 544, 550, 113 S. Ct. 2766, 125 L.Ed.2d 441 (1993) (citation and internal quotation marks omitted). The U.S. Supreme Court has long recognized that "prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights." Neb. Press Ass'n v. Stuart, 427 U.S. 539, 559, 96 S. Ct. 2791, 49 L.Ed.2d 683 (1976); see also id. ("If it can be said that a threat of criminal or civil sanctions after publication 'chills' speech, prior restraint 'freezes' it at least for the time." (quoting A. Bickel, the Morality of Consent 61 (1975)). As such, they "bear a heavy presumption against [their] constitutional validity." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). This cornerstone of First Amendment protections has been reaffirmed time and again by the Supreme Court, this Court, Texas courts of appeals, legal treatises, and even popular culture. Kinney v. Barnes, 443 S.W.3d 87, 90-91 (Tex. 2014) (footnotes omitted). While free speech is not an absolute right and the court’s remedies to punish an abuse of that right remains, a prior restraint on free speech by injunction is not an appropriate remedy. Id. at 94, citing, Hajek v. Bill Mowbray Motors, Inc., Appellants’ Brief – Page 8 647 S.W.2d 253 (Tex. 1983) (per curiam); Ex parte Tucker, 110 Tex. 335, 220 S.W. 75 (Tex. 1920). The Texas Supreme Court went on to note that, “[o]f course, the requirements for injunctive relief still must be met. A plaintiff must show that damages are inadequate or cannot otherwise be measured by any pecuniary standard. Id. at 93, fn 8, citing, Town of Palm Valley v. Johnson, 87 S.W.3d 110, 111 (Tex. 2001) (per curiam). 6. The Order at issue in this appeal provides, in part, “all communications between the parties be had through attorneys of record, and George Green and Garlan Green, and any of their agents, assigns, officers, executors or any person acting or working on their behalf in any way, [sic] other than their attorney(s) of record, shall make no communication to Defendants during this litigation.” CR 175. While the injunctive language is not clear, it purports to be an overly broad and unconstitutional restraint on Appellants exercise of free speech rights. The Order does not seek to limit the scope, timing, or substance of the communications, it simply prohibits all communications of any kind for any reason. By way of examples only and carried to the extreme, the Order effectively prohibits: (i) Appellants from speaking or asking questions at any meeting of the Port of Call Homeowners Association, (ii) Appellants from voting (at least from communicating in any manner what their vote is) in any POC election, (iii) Appellees from complying with the provisions of the Texas Property Code in providing notice to Appellants of its meetings except through counsel, Appellants’ Brief – Page 9 (iv) Appellants from notifying Appellees of any problems or emergencies on the common property, and (v) contesting any demand for payment or even making a payment if it includes any “communication.” The scope of the relief in the injunctive provisions of the Order constitutes an unconstitutional, overly broad limitation on the Appellants’ free speech rights. ii. The requirements for injunctive relief were not established. 7. Further, as noted above, in order for the Court to issue injunctive relief, the requirements for injunctive relief must still be met. Kinney, 443 S.W.3d 93fn 8. In this case, the Appellees did not pled for this relief, introduced no evidence of irreparable injury or that no adequate remedy at law is available, posted no bond, and the order does not include a trial date as required by the Texas Rules of Civil Procedure. See Sobel v. Taylor, 640 S.W.2d 704, 708 (Tex. App—Houston [14th Dist.] 1982, no writ) (finding that an order for injunctive relief was issued without compliance with the Texas Rules of Civil Procedure and that portion of the order “must be dissolved.”).4 The Order should be dissolved with respect to the injunctive relief. C. THE TRIAL COURT IMPROPERLY EXTENDED THE TIME FOR APPELLEE PORT OF CALL HOMEOWNERS’ ASSOCIATION TO PRODUCE RECORDS FROM EVERY FORTY-FIVE (45) DAYS TO EVERY SIXTY (60) DAYS. 8. At the hearing on August 14, 2014 resulting in the issuance of the Initial Order, the Court was provided with and referred to copies of relevant 4 See also., TEX. R. CIV. P. 682, 683, and 684. Appellants’ Brief – Page 10 Texas statutes relating to access to property owner associations and non-profit corporation records.5 See RR, Vol. 2, page 40, line 14 – page 45, line 5.6 These authorities create independent requirements for POC to make its records available to Appellants. These requirements are independent of the duties related to discovery in litigation. As the Court in Burton v. Cravey pointed out: Appellees sought the production of records that they were statutorily entitled to inspect. Appellants’ complaints about the order appear to be an attempt to engraft discovery notions upon the appellees’ statutory right of inspection, which is independent of any right of discovery in litigation. See San Antonio Models, Inc. v. Peeples, 686 S.W.2d 666 (Tex. App.— San Antonio 1985, orig. proceeding). The right to inspect under article 1396-2.23 encompasses “all books and records.” . . . Again, we note that appellants are attempting to engraft notions borrowed from Texas discovery practice onto a statutory right to inspect. Article 1396-2.23 contains no limitations on the member’s right to inspect as 5 The provisions referred to include: (i) TEX. PROP. CODE §81.209 (“. . . (b) The accounts and supporting vouchers of a condominium regime shall be made available to the apartment owners for examination on working days at convenient, established, and publicly announced hours.”); (ii) TEX. PROP. CODE §82.114 arguably applicable after November 2013 (“. . . (b) All financial and other records of the association shall be reasonably available at its registered office or its principal office in this state for examination by a unit owner and the owner's agents.”), (iii) TEX, BUS. ORG. CODE § 22.351 (providing that a member of a non-profit organization, “on written demand stating the purpose of the demand, is entitled to examine and copy at the member's expense, in person or by agent, accountant, or attorney, at any reasonable time and for a proper purpose, the books and records of the corporation relevant to that purpose.”), (iv) TEX. BUS. ORG. CODE §252.010. (“. . . (a) A nonprofit association shall keep correct and complete books and records of account for at least three years after the end of each fiscal year and shall make the books and records available on request to members of the association for inspection and copying.”). 6 The Trial Court was also provided with copies of governing documents for POC that require the production of records to members of the association. However, the Articles, Bylaws and recorded POC Records Production Policy were not introduced into evidence. Appellants’ Brief – Page 11 long as the books and records are those of the non-profit corporation and the inspection is for “any proper purpose.” Burton v. Cravey, 759 S.W.2d 160, 162 (Tex. App.—Houston [1st Dist.] 1988, no writ). The obligations with respect to the inspection and production of documents imposed by governing documents and Texas statutes are not the same as those governing discovery. 9. In the Initial Order, the Court reasonably sought to strike a balance between the requirements of production placed on Appellee Port of Call Homeowners’ Association’s by statute and its own governing documents and its discovery obligations in this litigation by ordering an automatic forty-five (45) day supplementation of all of its records to Appellants. No party objected to this order or sought to modify it. However, at the hearing on October 14, 2014, without any supporting pleading or evidence being introduced, the trial Court modified the automatic “supplementation” period and extended it to sixty (60) days. There was no evidence that the forty-five (45) day period was unreasonably burdensome or unworkable. The Trial Court should not have modified the Initial Order as a “nunc pro tunc” order because there was no evidence introduced to support the change, it was not requested by the Appellants’ Brief – Page 12 Appellees in the Motion to Enforce or any other pleading, and the change in the term of days is not correcting a clerical error.7 D. THE TRIAL COURT ERRED IN SANCTIONING APPELLANTS WITHOUT ANY EVIDENCE TO SUPPORT THE AWARD. 10. Trial courts have inherent power to sanction "to the extent necessary to deter, alleviate, and counteract bad faith abuse of the judicial process, such as any significant interference with the traditional core functions of Texas courts." Sprague v. Sprague, 363 S.W.3d 788, 803 (Tex. App.—Houston [14th Dist.] 2012, pet denied), citing McWhorter v. Sheller, 993 S.W.2d 781, 789 (Tex. App. —Houston [14th Dist.] 1999, pet. denied), citing Kutch v. Del Mar College, 831 S.W.2d 506, 509-10 (Tex. App.— Corpus Christi 1992, no writ). These core functions include "hearing evidence, deciding issues of fact raised by the pleadings, deciding questions of law, entering final judgment and enforcing that judgment." Kutch, 831 S.W.2d at 510. For the trial court to exercise its inherent power to sanction, there must be some evidence of significant interference with the core functions of the court. McWhorter, 993 S.W.2d at 789 (citing Kutch, 831 S.W.2d at 510). 11. In this case, and to the extent that this Court has jurisdiction over this part of the Order, the Appellees did not present any evidence to support 7 The Court initially thought supplementation every month (30 days) would be appropriate then revised it to every forty-five (45) days. See RR, Vol. 2, page 53, line 25 – page 54, line 7. Appellants’ Brief – Page 13 an award of sanctions. For example, Appellees introduced no admissible evidence that one or more letters were sent by Appellants or that one was sent with any particular content. Appellees offered no evidence of any costs, delays, expenses, attorney fees, etc. that were incurred by Appellees. Appellees offered no evidence of a significant interference with the core functions of the Court or even of significant interference with its own operations. For example, the Appellees offered no evidence that any letter from Appellants caused them to behave or act differently than they would have acted under the existing order. In other words, Appellees did not offer evidence that any letter from Appellants caused them or would have caused them to produce documents more often than the forty-five (45) automatic supplementation provision in the Initial Order. There is no evidence to support an award, or amount, of sanctions against Appellants. 12. Lastly, the Initial Order contains no language prohibiting the Appellants from communicating with the Appellees or sending letters. At best, the Court made an oral ruling that the Appellants should not, individually, make requests for documents. While there was an oral pronouncement from the bench at the time the Initial Order was signed to the effect that “the client needs to step aside when it comes to document requests” and “the plaintiff, individually, will not make specific requests under the statute during the pendency of this litigation, but rather that will be Appellants’ Brief – Page 14 dealt with by updating responses to discovery,”8 that language was not included in the Initial Order. CR 131. Even though styled as a nunc pro tunc order, the Order, by entering sanctions, effectively finds the Appellants in contempt for violation of the Initial Order. Ordinarily, a party “cannot be held in constructive contempt of a Court order that has not been reduced to writing at the time the actions allegedly violated that order. See Ex parte Chambers, 898 S.W.2d 257, 262 (Tex. 1995) (“A contemnor cannot be held in constructive contempt of court for actions taken prior to the time that the court’s order is reduced to writing.”); see also, Ex parte Price, 741 S.W.2d 366 (Tex. 1987) (noting that in the contempt context oral orders are poor substitutes for a written order). The Trial Court should not have awarded sanctions against the Appellants based solely on an oral instruction to “step aside” when it comes to document requests or to “not make specific requests under the statute” without identifying the statute or showing that the requests were made under a statute as opposed to, for example, the POC governing documents. CONCLUSION AND PRAYER Appellants respectfully move that the Order entered by the trial court on October 21, 2014 be vacated in all respects, dissolved as to any injunctive 8 RR, Vol. 2, page 53, lines 9 – 21. Appellants’ Brief – Page 15 relief, and further requests all such other and further relief, including general relief, to which they might be entitled. Respectfully submitted, Law Office of David Junkin _______________________ David Junkin State Bar No. 11058020 P.O. Box 2910 Wimberley, Texas 78676 512/847-8600 512/847-8604 (fax) david@junkinlawoffice.com Attorney for Appellants George and Garlan Green CERTIFICATION REGARDING LENGTH OF BRIEF Counsel for Appellants herby certifies that the length of Appellants’ Brief as indicated by the word processing system used to generate the brief, excluding appendices, is 4,707 words. While not required, this word count includes the caption, identity of the parties and counsel, statement of oral argument, table of contents, index of authorities, statement of the case and issues presented, signature block, and certificate of service. _______________________ David Junkin Appellants’ Brief – Page 16 CERTIFICATE OF SERVICE I hereby certify that a copy of this brief was served on the following counsel of record and in the manner indicated on January 12, 2015. CERTIFIED MAIL, RETURN RECEIPT REQUESTED #7013 0600 0001 1397 6886 AND/OR EFILE Brantley Ross Pringle, Jr. Heidi Coughlin Wright & Greenhill, PC 221 West 6th Street, Suite 1800 Austin, TX 78701 CERTIFIED MAIL, RETURN RECEIPT REQUESTED #7013 3020 0001 5962 8986 AND/OR EFILE L. Hayes Fuller, III Naman, Howell, Smith, & Lee, PLLC P.O. Box 1470 Waco, TX 76703-1470 ___________________________ David Junkin Appellants’ Brief – Page 17 175 176 131 132 Rahul K. Nath, M.D., Petitioner, employed by Baylor College of Medicine and affiliated with Texas Children's Hospital (the Hospital). Nath v. reported to Dr. Saleh Shenaq, the Chief of Baylor College of Medicine's Division of Plastic Surgery, who also was Texas Children's Hospital and Baylor College of Nath's partner at the Hospital's Obstetrical Brachial Medicine, Respondents Plexus Clinic. Baylor received fifteen percent of the clinic's patient fees, and Nath and Shenaq evenly split the No. 12-0620 remainder of the fees. Supreme Court of Texas Nath's relationship with his colleagues turned acrimonious in 2003, when several doctors complained August 29, 2014 that Nath billed excessively, performed unnecessary Argued February 5, 2014 procedures, and treated fellow colleagues in an unprofessional manner. A letter from his faculty On Petition for Review from the Court of Appeals supervisors states that, "there have been several for the Fourteenth District of Texas complaints pertaining to your billing practices, ethics, and professional conduct, " and described his academic Justice Guzman delivered the opinion of the Court contributions as "minimal." For these reasons, the letter in which Chief Justice Hecht, Justice Johnson, Justice announced that Nath's faculty appointment would not be Willett, and Justice Devine joined. renewed, and his employment with Baylor was terminated effective June 30, 2004. Nath's former office Eva M. Guzman Justice manager also claimed Nath had a history of making racially-provocative statements and seemed to harbor In a civil suit, few areas of trial court discretion delusions of grandeur. implicate a party's due process rights more directly than sanctions. This proceeding involves one of the highest Shortly after receiving the letter, Nath retained an reported monetary sanctions awards in Texas history attorney and notified Baylor that its employees were stemming from baseless pleadings and one of the largest making statements "potentially damaging to Dr. Nath's such awards in the United States.[1] Further, the award reputation, " allegedly in an effort to get Nath's patients to was levied against a party rather than an attorney. The remain at the clinic. In 2006, Nath sued Shenaq, Baylor, Civil Practice and Remedies Code and our Rules of Civil and the Hospital. Nath and Shenaq settled two years later. Procedure allow for pleadings sanctions against parties Shenaq and another clinic doctor subsequently died and and attorneys when, among other things, a pleading was the clinic never reopened. filed with an improper purpose or was unlikely to receive evidentiary support. We have held that due process In his original pleading in 2006, Nath asserted concerns impose additional layers of protection on claims for defamation and tortious interference with sanctions awards by requiring, among other things, that business relations against Baylor and the Hospital.[2] the awards be just and not excessive. Nath's third amended petition added claims for negligent supervision and training predicated on the previously In this suit between a physician and other medical alleged facts. Nath's fourth amended petition added providers, the trial court imposed sanctions against the allegations that Shenaq had been operating on patients physician well in excess of one million dollars for filing despite impaired vision. Similarly, Nath's fifth amended groundless pleadings in bad faith and with an improper petition added that Shenaq had been operating on patients purpose. We conclude the physician plaintiff's pleadings while afflicted with hepatitis. The fifth amended petition asserted time-barred claims and addressed matters wholly also included a declaratory judgment claim (that Nath irrelevant to the lawsuit in an attempt to leverage a more could or should disclose to his patients that Shenaq was favorable settlement, and therefore are sanctionable. But in poor health). The Hospital counterclaimed for in assessing the amount of sanctions, the trial court failed attorney's fees pursuant to the declaratory judgment act, to consider whether, by litigating for over four years and in December 2009, moved for summary judgment on before seeking sanctions, the defendants bore some all of the claims in Nath's fifth amended petition. Baylor responsibility for the attorney's fees they incurred. moved for summary judgment in January 2010. In Accordingly, we reverse the court of appeals' judgment response, Nath moved to compel additional depositions, and remand to the trial court to reassess the amount of the extend the deadline to respond to the motions, and sanctions award. continue the summary judgment hearing—all of which the trial court granted. In March 2010, Nath again I. Background moved to continue the summary judgment hearing, which the trial court denied. Nath retained new counsel, Daniel Dr. Rahul K. Nath is a plastic surgeon who was Shea, who appeared at the hearing and filed a motion to recuse the judge. Nath also moved to recuse the judge sanctions. assigned to hear the motion to recuse. Ultimately, the motions to recuse were denied. Before the hearing on the Hospital's motion for sanctions, Nath moved to sever the claims as to Baylor, Nath also filed a sixth amended petition in April and after severance, Baylor also moved to modify the 2010, in which he abandoned his defamation, tortious judgment to assess fees as sanctions. After a hearing on interference, negligence, and declaratory judgment claims Baylor's sanctions motion in November 2010, the trial and brought a claim for intentional infliction of emotional court made similar findings and awarded Baylor's $644, distress. The Hospital and Baylor moved for summary 500.16 in attorney's fees as sanctions against Nath. The judgment on the new claim. Nath failed to respond to the court of appeals affirmed the awards, and we granted motions and instead objected to the notice of hearing Nath's petition for review. 375 S.W.3d 403, 415. based on a technical defect. All parties appeared at a summary judgment hearing in June 2010, more than four II. Discussion years after the suit began, where the trial court dismissed Nath's claims.[3] Nath primarily argues in this Court that the sanctions imposed against him as the client were not Two months later, the Hospital nonsuited its visited on the true offender and were excessive. The declaratory judgment counterclaim. The Hospital then Hospital and Baylor counter that Nath had personal, moved to modify the judgment to assess attorney's fees as active involvement in the litigation and that the fee award sanctions against Nath. Nath retained new counsel and was appropriate given the circumstances. We agree with filed special exceptions to the motion for sanctions in the Hospital and Baylor that the trial court properly September. After a hearing on the special exceptions and sanctioned Nath because he pursued time-barred claims the Hospital's sanctions motions, the trial court denied the and irrelevant issues in order to leverage a more special exceptions and granted the sanctions motion. The favorable settlement. But concerning the excessiveness of court issued findings of fact and conclusions of law the award, the Hospital and Baylor waited almost four indicating the sanctions were based on: (1) "Nath's years into the litigation before moving for summary improper purposes in filing the pleadings in this case;" judgment on Nath's claims and only moved for sanctions (2) "the bad faith that his actions manifest;" and (3) "the after obtaining a final judgment. We previously advised lack of any factual predicate for his claims, as previously courts to consider a variety of factors when imposing established by the Court's orders granting the motions for sanctions, including the degree to which the summary judgment." The court explained that its finding non-sanctioned parties' behavior caused their own of bad faith stemmed from Nath's conduct in seeking expenses. The trial court failed to discuss this relevant information regarding Shenaq's health, conduct for which factor, and we reverse and remand for it to do so. the court had previously admonished Nath.[4] Finally, the court concluded that Nath's leveraging of this information A. Standard of Review in an attempt to obtain a settlement constituted an We review the imposition of sanctions under an improper purpose. abuse of discretion standard. Low v. Henry , 221 S.W.3d The trial court further found that Nath took "a 609, 614 (Tex. 2007). Both Chapter 10 of the Texas Civil personal, participatory role in this litigation." The court Practice and Remedies Code and Texas Rule of Civil posited that Nath "is knowledgeable about the law and Procedure 13 are applicable to this case, and sanctions legal issues, having previously studied the law, " for imposed pursuant to both are reviewed under this abuse several semesters in the early 1980s in Canada. of discretion standard. Id. A sanctions award will not According to the trial court, Nath insisted on delaying the withstand appellate scrutiny if the trial court acted summary judgment hearing so he could be present at two without reference to guiding rules and principles to such depositions. Nath also filed an affidavit in response to the an extent that its ruling was arbitrary or unreasonable. motion for summary judgment indicating he authorized Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. the facts and theories set forth in the petitions. The court 2004). A sanctions award that fails to comply with due further found that Nath met with one deponent shortly process constitutes an abuse of discretion because a trial before his deposition to discuss his testimony. And the court has no discretion in determining what the law is or trial court observed that "Nath has used the court system applying the law to the facts. See TransAmerican Natural to intimidate adversaries and to stifle dissent with Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991); baseless legal allegations" by suing an alleged defamer, Huie v. DeShazo, 922 S.W.2d 920, 927 (Tex. 1996). But suing his former partner in a MRI business, suing two we will not hold that a trial court abused its discretion in individuals associated with the Texas Medical Board levying sanctions if some evidence supports its decision. (which later dismissed its proceedings against Nath), and Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex. asserting claims in federal court related to the sale of his 2009). Generally, courts presume pleadings and other home (on which he prevailed).[5]Ultimately, the trial papers are filed in good faith. GTE Commc'ns Sys. Corp. court found that the Hospital's fees of $776, 607 in v. Tanner , 856 S.W.2d 725, 730 (Tex. 1993). The party defending the suit were reasonable and awarded them as seeking sanctions bears the burden of overcoming this presumption of good faith. Id. at 731. sanctions on the issue of groundlessness alone. Rather, the filing in question must be groundless and also either B. Substantive Law Governing Sanctions brought in bad faith, brought for the purpose of harassment, or false when made. Id. The sanction at issue here concerns pleadings, and its propriety is thus primarily governed by Chapter 10 of We have held that in order to safeguard the Texas Civil Practice and Remedies Code and Texas constitutional due process rights, a sanction must be Rule of Civil Procedure 13.[6] Chapter 10 allows neither unjust nor excessive. We promulgated this sanctions for pleadings filed with an improper purpose or standard most clearly in TransAmerican, 811 S.W.2d at that lack legal or factual support. It provides that upon 913. The underlying case in TransAmerican was complex signing a pleading or motion, a signatory attests that: and multi-partied. Id. at 914. In brief, TransAmerican's president was sanctioned for discovery abuse pursuant to (1) the pleading or motion is not being presented for any Rule of Civil Procedure 215 for failing to appear at a improper purpose, including to harass or to cause deposition. Id. at 915–16. In considering whether unnecessary delay or needless increase in the cost of those sanctions complied with due process, we litigation; established a two-part test. (2) each claim, defense, or other legal contention in the The first prong of the TransAmerican test concerns pleading or motion is warranted by existing law or by a the relationship between the conduct evinced and the nonfrivolous argument for the extension, modification, or sanction imposed and requires a direct nexus between the reversal of existing law or the establishment of new law; offensive conduct, the offender, and the sanction award. [and] See id. at 917. A just sanction must be directed against the abusive conduct with an eye toward remedying the (3) each allegation or other factual contention in the prejudice caused to the innocent party, and the sanction pleading or motion has evidentiary support or, for a must be visited upon the true offender. Id. A court must specifically identified allegation or factual contention, is attempt to determine whether the offensive conduct is likely to have evidentiary support after a reasonable attributable to counsel only, to the party only, or to both. opportunity for further investigation or discovery . . . . Id. Yet we warily noted in TransAmerican that Tex. Civ. Prac. & Rem. Code § 10.001.[7] Pleadings that apportioning blame between an attorney and a violate these Chapter 10 requirements are sanctionable. represented party "will not be an easy matter in many instances." Id. Such caution is warranted. The closeness Id. § 10.004(a). But a court may not sanction a represented party under section 10.001 for unfounded that typically defines interaction between a litigant and legal contentions. Id. § 10.004(d). his attorney not only binds their interests but may lend an overall opacity to the relationship that renders it difficult Rule 13 provides that pleadings that are groundless to determine where a party's input ends and where an and in bad faith, intended to harass, or false when made attorney's counsel begins. are also sanctionable: The second prong of the due process analysis under The signatures of attorneys or parties constitute a TransAmerican considers the proportionality of the certificate by them that they have read the pleading, punishment relative to the misconduct and warns "just motion, or other paper; that to the best of their sanctions must not be excessive." Id. Not only should a knowledge, information, and belief formed after punishment (i.e., sanctions) fit the crime (i.e., the reasonable inquiry the instrument is not groundless and triggering offense), the sanction imposed should be no brought in bad faith or groundless and brought for the more severe than necessary to satisfy its legitimate purpose of harassment. Attorneys or parties who . . . purposes. Id. Legitimate purposes may include securing make statements in pleading which they know to be compliance with the relevant rules of civil procedure, groundless and false, for the purpose of securing a delay punishing violators, and deterring other litigants from of the trial of the cause, shall be held guilty of a contempt similar misconduct. Spohn Hosp. v. Mayer , 104 S.W.3d .... 878, 882 (Tex. 2003). Courts shall presume that pleadings, motions, and other We require courts to consider less stringent papers are filed in good faith. No sanctions under this sanctions and weigh whether such lesser sanctions would rule may be imposed except for good cause, the serve to promote compliance. TransAmerican, 811 particulars of which must be stated in the sanction order. S.W.2d at 917.[8] Evidencing our reticence to wield the "Groundless" for purposes of this rule means no basis in heavy hammer of sanctions, we have cautioned: "[c]ase law or fact and not warranted by good faith argument for determinative sanctions may be imposed in the first the extension, modification, or reversal of existing law . . instance only in exceptional cases when they are clearly .. justified and it is fully apparent that no lesser sanctions would promote compliance with the rules." Tanner, 856 Tex. R. Civ. P. 13. Importantly, Rule 13 does not permit S.W.2d at 729. America—Eighth Amendment—and the Excessive Fines clause of the Texas Historically, awards for groundless pleadings in Constitution—Article I, section 13." Additionally, Texas have been moderate, at least in monetary terms. Nath cited United States Supreme Court precedent to See id. at 730 (reversing a sanctions award of $150, 000 bolster his contention that the trial court should consider in attorney's fees for groundlessness and discovery "whether the penalties in question were excessive."[11] non-compliance); Dike v. Peltier Chevrolet, Inc., 343 We are generally loath to turn away a meritorious claim S.W.3d 179, 183 (Tex. App.—Texarkana 2011, no due to waiver; where the party has clearly and timely pet.) (reversing a groundless pleadings sanction of $15, registered its objection, we find a waiver argument 353); Parker v. Walton, 233 S.W.3d 535, 538 (Tex. particularly unavailing. See Verburgt v. Dorner, 959 App.—Houston [14th Dist.] 2007, no pet.) S.W.2d 615, 616–17 (Tex. 1997). We conclude (reversing a groundless pleading sanction of $3, 500 in Nath did not waive his objection to the excessiveness of attorney's fees); Emmons v. Purser, 973 S.W.2d 696, 699 the sanctions award. (Tex. App.—Austin 1998, no pet.) (reversing a groundless pleadings sanctions award of $3, 200); see 2. Nath's Fourth, Fifth, and Sixth Amended also Robson v. Gilbreath , 267 S.W.3d 401, 405 (Tex. Petitions App.—Austin 2008, pet. denied) (affirming a groundless pleadings sanction of $10, 000 for failure to Central to its ultimate imposition of sanctions, the conduct a reasonable inquiry). While this tour d'horizon trial court found that Nath's pursuit of information is not intended to be comprehensive, it is nonetheless relating to Shenaq's health was in bad faith, and that representative of what our reported cases suggest have Nath's ostensible intent to use that information to been typical groundless pleadings awards in this state.[9] leverage a favorable settlement for a baseless claim constituted an improper purpose. Nath originally included Though we specifically addressed sanctions allegations relating to Shenaq's health in his fourth stemming from a charge of discovery abuse in amended petition, filed in November 2008.[12] Nath TransAmerican, we have previously held the due process moved to compel discovery relating to Shenaq's health requirements we established there apply to pleadings and in July 2009 filed a fifth amended petition that sanctions as well. Low, 221 S.W.3d at 619–20. included a request for declaratory judgment relating to Shenaq's health. The trial court admonished Nath's C. Analysis counsel that the information was irrelevant to his lawsuit. See supra note 4. Nath later filed a sixth amended In the trial court, Nath brought claims for a petition that abandoned his prior claims and added a declaratory judgment (regarding Shenaq's health), claim for intentional infliction of emotional distress. But intentional infliction of emotional distress, defamation, that petition retained allegations regarding Shenaq's tortious interference, and negligence. The trial court health.[13] For the reasons explained below, we agree sanctioned Nath for (1) bad faith in his pursuit of with the court of appeals that the trial court properly discovery on the irrelevant issue of Shenaq's health; (2) found Nath's pleadings sanctionable. an improper purpose of leveraging information concerning Shenaq's health to favorably settle a baseless The hallmarks of due process for sanctions awards claim; and (3) bringing claims that lacked a factual are that they be just and not excessive. TransAmerican, predicate. Chapter 10 requires that we analyze an 811 S.W.2d at 917. Sanctioning Nath for pleadings improper purpose pleading-by-pleading, but we assess relating to Shenaq's health was demonstrably just. First, claim-by-claim whether a claim lacked a legal or factual there was a direct nexus between this portion of the trial basis.[10] court's sanctions and the offensive conduct. The trial court found such pleadings to be in bad faith (due to their 1. Waiver irrelevance) and filed for an improper purpose (leveraging a settlement). The trial court's finding is As an initial matter, we address the claim of the supported by some evidence and is therefore not an abuse Hospital and Baylor that Nath waived his objection to the of discretion. See Unifund, 299 S.W.3d at 97. Nath size of the sanctions award by failing to raise the issue of admittedly was seeking information relating to Shenaq's excessiveness at the trial court level. The court of appeals health so he could disclose it to Shenaq's patients. But agreed, finding that the issue had not been properly such disclosures would not be relevant to triable issues preserved for review. 375 S.W.3d at 412. We disagree. related to Nath's then-contemporaneous claims for The record plainly reveals Nath's objections to the award, defamation, tortious interference, and negligence. including objections specifically predicated on the ground of excessiveness. On December 20, 2010, Nath filed a Moreover, there was some evidence supporting the motion for new trial and a motion to modify the trial trial court's determination that Nath was improperly court's November judgment and sanctions order, arguing seeking irrelevant information to leverage a favorable the sanctions award "violates the Excessive Fines clause settlement. On the eve of a mediation in June 2009, of the Constitution of the United States of Nath's counsel sent a letter to the Hospital indicating Nath was anxious to conduct discovery regarding amended petition contains facts regarding Shenaq's health Shenaq's health conditions, the results of which"would from the prior petitions, and we have already determined most certainly require prompt actions to notify patients so that information likely came from Nath himself. In that they can undergo immediate testing and obtain legal addition, Nath almost certainly knew of the inclusion of counsel to advise them of their rights." During Nath's those allegations in the sixth amended petition because deposition, attorneys for Baylor and the Hospital likened his attorney "kept Dr. Nath reasonably Nath's use of legal process in this manner to extortion. informed"—as was his professional obligation.[15] The trial court agreed with this assessment, characterizing Accordingly, we reject Nath's argument and conclude the Nath's conduct in seeking information related to Shenaq's trial court did not abuse its discretion in labeling Nath the health as "an abuse of process" and "a form of extortion." true offender, insofar as the sixth amended petition Accordingly, the improper purpose of Nath's pleadings continued to make issue of Shenaq's health. regarding Shenaq's health indicates the trial court appropriately levied sanctions regarding this conduct.[14] We note, however, that while Nath may be properly deemed the true offender, his attorneys possess ethical In addition to considerations described, the obligations and may share in the blame for sanctionable just-award prong of the due process analysis also conduct. An attorney has ethical obligations to both his examines whether the sanction was visited on the true client and to the judicial system as an officer of the offender. The trial court made various findings of fact court.[16] Though zealous advocacy is expected of an regarding Nath's direct involvement in the case, attorney—indeed, it is a professional particularly noting his effort to seek information relating obligation—the attorney must not permit client to Shenaq's health, and the record supports these findings. desires to supersede the attorney's obligation to maintain Relations between Nath and Shenaq deteriorated to the confidence in our judicial system.[17] As our rules of point of acrimony in the time leading up to Nath's professional conduct unambiguously require: "A lawyer departure from Baylor, and they only worsened as should use the law's procedures only for legitimate litigation ensued. The affidavit Nath filed in response to purposes and not to harass or intimidate the motions for summary judgment claimed the others."[18]Further, these rules of conduct require an relationship between Nath and Shenaq grew tense when attorney to "maintain the highest standards of ethical Nath confronted Shenaq for performing surgery with conduct" throughout representation.[19] Regardless, allegedly impaired vision. And Nath, by his own Baylor and the Hospital only moved to admission, specifically sought information related to sanctionNath—not his lawyers—and the Shenaq's health so that he could inform former patients of trial court declined to sanction the lawyers sua Shenaq's health problems. Nath's affidavit also lists sponte.[20] Thus, under the true-offender inquiry, we forty-five patient surgeries Shenaq performed with must uphold the trial court's decision to sanction Nath allegedly impaired vision. Further, Nath personally personally because some evidence supports the sanction. attended two depositions of Shenaq's colleagues where See Unifund, 299 S.W.3d at 97. his counsel asked questions concerning Shenaq's health. Ultimately, Nath's conduct surrounding Shenaq's health We are mindful of course that due process analysis appears to be less about pursuing a legal redress for an for sanctions must encompass analyzing whether the injury (the province of the attorney) and more about award was excessive. But we will refrain from engaging seeking irrelevant personal information (an extrajudicial in this analysis until we have examined all pleadings and desire of the client). While litigation is contentious by claims for which Nath may appropriately be sanctioned. definition and often utilized to compel a desired end, we agree with the trial court that, on these facts, using a legal 3. Defamation mechanism to force damaging, irrelevant information into Nath's initial petitions included claims for the public domain and thereby compel a more favorable defamation, tortious interference, and negligence. We settlement constitutes an improper purpose. Against this address them in turn. The trial court made discrete backdrop and the logical inferences that flow from it, we findings as to Nath's defamation claim. Specifically, the cannot say the trial court abused its discretion by trial court found the defamation claim was time-barred by imposing the sanction against Nath personally. a one-year statute of limitations[21] and that some of the Nath claims that even if some of the sanctions statements Nath claimed were defamatory were not against him were proper, sanctions against him for the actually defamatory.[22] But Chapter 10 expressly sixth amended petition were improper because the lawyer disallows sanctions against a party for improper legal who drafted that petition swore in an affidavit that Nath contentions when the party is represented by counsel. had no involvement with the claim in that petition. Tex. Civ. Prac. & Rem. Code § 10.004(d). The trial court Specifically, the attorney indicated he "exercised [his] did not find that the statements did not occur. Rather, it own legal judgment" when deciding what claims to file in sanctioned Nath because of legal impediments to the sixth amended petition and asserted that Nath "had no recovering for the alleged statements.[23] Thus, Chapter involvement in the selection of what pleadings and 10 precluded the trial court from sanctioning Nath for motions were filed in this case." Nonetheless, the sixth groundlessness based upon improper legal contentions when he was represented by counsel. defamatory statements. As explained below, the trial court's first rationale violates the Legislature's directive in However, the trial court also held that the Chapter 10, but some evidence supports its second time-barred status and nondefamatory nature of some of rationale. the statements in his defamation claim indicated Nath filed the claim in bad faith and for an improper purpose. Generally, groundless pleadings are sanctionable Defamation claims are subject to a one-year limitations under either Rule 13 or Chapter 10. Under Rule 13, period, and Nath filed suit in February 2006. The trial groundlessness in and of itself is an insufficient basis for court found that most of the allegedly defamatory sanctions. A pleading must also be in bad faith, intended statements occurred in June or July of 2004, and none to harass, or knowingly false to justify sanctions. occurred after the end of 2004, when the Hospital closed Tex.R.Civ.P. 13.[25] The trial court made no findings of the clinic. Nath's affidavit opposing summary judgment bad faith, improper purpose, or falsity regarding the detailed the allegedly defamatory statements and claimed tortious interference claim. Accordingly, Rule 13 cannot they damaged his medical practice and caused him support the sanctions as to this claim. financial harm. Further, Nath's affidavit admits he learned of eight of these allegedly defamatory statements in However, Chapter 10 provides that a claim that 2004—over one year before he filed suit.[24] As lacks a legal or factual basis—without previously addressed, this matter involves legal more—is sanctionable. Tex. Civ. Prac. & Rem. contentions—which Chapter 10 does not allow Code § 10.001; see also Low, 221 S.W.3d at 617. Nath to be sanctioned for on the basis of legally Legally, the claim must be warranted by existing law or a groundless pleadings because he was represented by nonfrivolous argument to change existing law. Tex. Civ. counsel. Id. But Chapter 10 offers no similar stricture for Prac. & Rem. Code § 10.001(2). But Chapter 10 sanctions based on improper purpose. And in any event, expressly prohibits monetary sanctions against a Nath was represented by counsel no later than June 8, represented party based on the legal contentions in a 2004, when he claimed the statements were "potentially pleading. Id. § 10.004(d) ("The court may not award damaging to [his] reputation." Because there is some monetary sanctions against a represented party for a evidence supporting the finding that Nath brought his violation of Section 10.001(2)."). Accordingly, the trial defamation claim with an improper purpose, the trial court could not have properly awarded sanctions against court did not abuse its discretion in sanctioning Nath for Nath for groundless legal contentions in his tortious this claim. interference claim. Nath nonetheless argues such sanctions violate the Chapter 10 requires that each factual contention constitutional requirement that the sanction be visited on must have evidentiary support or be likely to receive it the true offender. We disagree. The fact that Chapter 10 after a reasonable opportunity for discovery. Id. § does not shelter parties from sanctions for flawed legal 10.001(3); Low, 221 S.W.3d at 616–17. We held contentions that demonstrate an improper purpose is in Low that a pleading was sanctionable because it simply a reflection of our warning in TransAmerican that alleged two doctors prescribed a drug that medical the attorney-client relationship is opaque by default. Nath records in the attorney's possession demonstrated they did only diminished that opacity for his sixth amended not prescribe. 221 S.W.3d at 616. Thus, in holding the petition, which contained a claim for intentional infliction pleading was sanctionable, we held that the allegations of emotional distress. The attorney who filed that claim did not have, and were not likely to subsequently receive, indicated Nath had no involvement in drafting the claim. evidentiary support in light of the evidence the attorney But Nath presented no similar evidence with respect to possessed when filing the claim. Id. the pleadings containing Nath's defamation claim. Accordingly, because some evidence supports the trial Unlike in Low, the trial court's findings here only court's finding, and no evidence clarifies the respective indicate it viewed the pleadings as groundless as of the roles of Nath and his attorneys in regards to his time it granted summary judgment. But the court's defamation claim, we conclude the trial court did not findings miss the mark, as the vantage point for assessing abuse its discretion in sanctioning Nath for that claim. evidentiary support is at the time the pleading is filed.[26] Establishing a vantage point at the time of a 4. Tortious Interference merits adjudication four years or more into a proceeding would unnecessarily chill litigation in cases where Nath's remaining claims are for tortious interference claimants in good faith believe they possess a claim, but and negligence. The trial court did not find that Nath filed have not yet discovered sufficient evidence on every his tortious interference claim in bad faith or for an essential element of their claim. We cannot endorse a improper purpose. Rather, the trial court generally found view that runs so contrary to the Legislature's chosen Nath's claims to be sanctionable because they lacked words in Chapter 10 and our construction of them. merit, as evidenced by the court's summary judgment dismissal. The trial court also found Nath's claim to be Nonetheless, a distinction between sanctions for groundless to the extent it relied on time-barred groundless pleadings and sanctions for discovery abuse is worth noting. A claim may be likely to receive with Nath's tortious interference claim, the trial court (1) evidentiary support when filed and thus not be groundless generally found Nath's claims to be sanctionable because under Chapter 10. But if a party later learns through they lacked merit due to their dismissal at summary discovery that no factual support for the contention exists judgment, and (2) specifically found the negligence claim and still pursues litigation, such conduct might be to be groundless to the extent it relied on time-barred sanctionable. But the sanctionable conduct would likely defamatory statements. As explained above, assessing be the abuse of the discovery process, not the filing of groundlessness only at the time of a merits dismissal over pleadings, as our rules of civil procedure specify that a four years into the litigation contravenes the requirement court may sanction a party or counsel if the court "finds in Chapter 10 that groundlessness is assessed as of the that any interrogatory or request for inspection or time of filing. Thus, the trial court's first rationale cannot production is unreasonably frivolous, oppressive, or support sanctions as to the negligence claim. harassing." Tex.R.Civ.P. 215.3. While the ultimate penalty may be similar in its effect on the sanctioned But the trial court's second rationale—that party, its application is predicated on a different the negligence claim relied on time-barred ground.[27] statements—is a sufficient basis for sanctions. Nath filed his negligence claim in his third amended But in addition to concluding that Nath's claims petition in September 2008, over four years after learning ultimately lacked merit, the trial court also specifically of the first allegedly defamatory statements in June 2004. noted in a footnote in its findings of fact and conclusions Regardless of whether the two-year limitations window of law that "Nath's claims of negligence and tortious for negligence claims was truncated to one year because interference are also groundless to the extent that those Nath's claim was predicated solely on defamatory claims rely on time-barred, allegedly defamatory statements (as with the tortious interference claim), statements." Defamation is subject to a one-year statute limitations barred the negligence claim. For the same of limitations, Tex. Civ. Prac. & Rem. Code § 16.002(a), reason sanctions are appropriate for Nath's defamation while tortious interference is subject to at least a two-year and tortious interference claims, they are appropriate for statute of limitations, First Nat'l Bank of Eagle Pass v. his negligence claim. Levine, 721 S.W.2d 287, 289 (Tex. 1986). However, the Fifth Circuit and several Texas courts of appeals have D. Remand held that, when the sole basis for a tortious interference claim is defamatory statements, the one-year statute of In short, all of Nath's petitions are sanctionable. But limitations for defamation applies.[28] Likewise, we have we must still assess whether the amount of the award was applied a one-year statute of limitations to business excessive. A trial court abuses its discretion by failing to disparagement claims when the gravamen of the adhere to guiding rules and principles. Cire, 134 S.W.3d complaint is defamatory injury to reputation and there is at 838–39. We set forth these guiding rules and no evidence of special damages. See Hurlbut v. Gulf Atl. principles for assessing the amount of pleadings sanctions Life Ins. Co., 749 S.W.2d 762, 766 (Tex. 1987). We now in Low.[29] 221 S.W.3d at 620 n.5. This nonexclusive list similarly conclude that if a tortious interference claim is of factors is helpful in guiding the often intangible based solely on defamatory statements, the one-year process of determining a penalty for sanctionable limitations period for defamation claims applies. behavior, and it provides context for our review of the trial court's award. We advised in Low that "[a]lthough Nath's tortious interference claim was predicated we do not require a trial court to address all of the factors solely on the allegedly defamatory statement because it . . . to explain the basis of a monetary sanction . . . it alleges the Hospital and Baylor tortiously interfered "by should consider relevant factors in assessing the amount continuing to make false statements regarding" Dr. Nath of the sanction." Id. at 620–21 (emphasis added). to third parties. Accordingly, Nath's tortious interference In practice, this means that when a factor is relevant to a claim was subject to the one-year statute of limitations. party being sanctioned, that factor must inform the The trial court correctly found the earliest of the allegedly issuance of the award. To take just one example, one defamatory statements occurred in June 2004. Nath filed factor we referenced in Low is "any prior history of his tortious interference claim in February 2006, after the sanctionable conduct on the part of the offender." Id. at one-year limitations period had run. Thus, some evidence 620 n.5. A court obviously need not consider prior supports the trial court's finding that Nath's tortious sanctionable conduct in calibrating a sanction award for a interference claim (as with his defamation claim) was first-time litigant for the self-evident reason that no such time-barred and demonstrated an improper purpose. conduct exists. Yet, were the example reversed and a sanctioned litigant possessed a lengthy history of prior 5. Negligence sanctions, the court "should consider" that party's checkered history in levying a sanction. Id. at Nath's final claim was for negligence, in which 620–21 & 620 n.5. Nath claimed that Baylor and the Hospital's negligent training and supervision of its employees led them to Here, the trial court cited and then considered defame him and tortiously interfere with his practice. As nearly all of the relevant Low factors. In the context of this matter, however, one factor made relevant by the relevant issue but fails to discuss it, we cannot protracted nature of this litigation is "the degree to which automatically conclude that such cursory mention is the offended person's own behavior caused the expenses tantamount to compliance. This was true in the case of for which recovery is sought." Id. at 620 n.5 (quotation the $50, 000 sanction we reversed in Low, and it is marks omitted). The trial court failed to address this equally as true of the $1.4 million sanction presented factor, though it is unquestionably relevant. The here. statements Nath addressed in his original petition were made in 2004, and Nath filed suit well after the one-year Additionally, the dissent contends that our limitations period had run. Yet, the record indicates that admonishment that trial courts "should" consider the all three parties litigated a host of merits issues for nearly relevant Low factors is permissive. Notably, the dissent a half-decade before the Hospital and Baylor moved for does not contend the extent to which the Hospital and summary judgment on such grounds as limitations. Thus, Baylor caused their attorney's fees is irrelevant. And while Nath was the initiator of this litigation, the degree regardless of whether consideration of the relevant Low to which the Hospital and Baylor caused their attorney's factors is permissive, the trial court went to great lengths fees is a relevant inquiry. to examine all the relevant Low factors except for the extent to which the non-sanctioned parties caused their A party is entitled to thoroughly and vigorously own injuries. We do not believe the standard of review litigate a matter. But if issues asserted in pleadings are allows a trial court that dutifully considers almost all of revealed to be frivolous, and the defending party delays the relevant Low factors to essentially ignore a relevant moving for summary judgment and sanctions, the factor. As noted, failure to adhere to guiding rules and defending party adopts some responsibility for the overall principles constitutes an abuse of discretion. Cire, 134 increase in litigation costs. Of course, placing the entire S.W.3d at 838–39. Low offered these guiding cost of litigation on a plaintiff may be proper and rules and principles, the trial court failed to adhere to deserved if the plaintiff was the party responsible for them, and this amounted to an abuse of discretion. sustaining frivolous litigation over a prolonged period. Here, the trial court found the defamation claims were III. Conclusion friviolous ab initio because the statements were alleged to have been made at least one year before suit was filed. Due process requires that sanctions be just, meaning Moreover, the time-barred statements permeated that there be a direct nexus between the sanction and the subsequent pleadings. The defendants, however, did not sanctionable conduct, and be visited on the true offender. file a summary judgment for years after the allegations Here, the trial court's sanctions award complied with were first made. A defending party cannot arbitrarily shift these requirements because Nath's petitions were filed for the entirety of its costs on its adversary simply because it the improper purpose of pursuing an unrelated issue and ultimately prevails on a motion for sanctions. Because the advancing time-barred claims. However, when assessing trial court did not discernibly examine this relevant Low the amount of sanctions, the trial court failed to examine factor, we remand for it to do so.[30] the extent to which the Hospital and Baylor caused the expenses they accrued in litigating a variety of issues E. Response to the Dissent over several years. Accordingly, we remand for the trial court to reassess the amount of the sanctions award while The dissent tacitly agrees with our analysis, but considering the omitted factor. See Low, 221 S.W.3d at would affirm the sanctions award rather than remand for 622. the trial court to assess the relevant Low factor. Specifically, the dissent argues that we should outright Justice Green, joined by Justice Lehrmann, Justice affirm the award of sanctions because, among other Boyd and Justice Brown, dissenting. things: (1) the findings of fact and conclusions of law contained a typographical error, and (2) our direction that The Court holds that the trial court abused its trial courts "should" consider the relevant Low factors is discretion when it assessed sanctions against Dr. Rahul permissive. K. Nath without examining the extent to which Texas Children's Hospital and Baylor College of Medicine The dissent first contends the trial court made a caused the accrual of their own attorney's fees. __ S.W.3d typographical error in stating that it considered the extent __, __. Because I read the trial court's orders as having to which Nath caused the Hospital and Baylor's fees. But addressed that specific factor, and because I believe the viewing the findings and conclusions as a whole belies trial court's discretion is broader in this context than the the dissent's position. The trial court was careful to detail Court does, I respectfully dissent. its rationale for the Low factors it found to be relevant—except the extent to which the Hospital The abuse of discretion standard is critical to our and Baylor caused their own injuries. For example, the analysis in this case. Under this standard, we may reverse findings and conclusions spent considerable time the trial court only if it acted "without reference to any discussing Nath's bad faith, his degree of willfulness, and guiding rules and principles, such that its ruling was his knowledge and expertise. When a trial court recites a arbitrary or unreasonable." Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007) (citing Cire v. Cummings , 134 (Emphasis added). S.W.3d 835, 838–39 (Tex. 2004)). The trial court reached a similarly-worded The amount of a sanction is limited only by the conclusion in its findings of fact and conclusions of law trial court's duty to act within its sound discretion in in support of its judgment granting Baylor's request for accordance with the Due Process clause of the Texas sanctions. In both orders, the trial court expressly stated Constitution. Low, 221 S.W.3d at 619; TransAmerican that it was familiar with the Low factors and had Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. considered them in assessing sanctions. The Court 1991). In exercising its discretion, the trial court must claims, however, that in both orders, the trial court failed ensure that the sanction: (1) relates directly to the abuse to "discernibly examine" an "unquestionably relevant" found; and (2) is not excessive. Low, 221 S.W.3d at 620; Low factor. __ S.W.3d at __, __. However, reading the Powell, 811 S.W.2d at 917. In Low, we provided a list of findings and conclusions as a whole, I can conclude only non-exhaustive factors to assist a trial court in that the trial court did consider the factor that the majority determining whether a sanction is appropriate. Low, 221 claims was omitted. In its findings and conclusions, the S.W.3d at 620–21 n.5. We explained that a trial trial court expressly stated that it considered "the degree court need not consider every factor listed, but rather to which Nath's own behavior caused the expenses for "should consider relevant factors in assessing the amount which Texas Children's Hospital [and Baylor] seeks of the sanction" in each case. Id. at 621. reimbursement." The trial court's list of considerations mirrors the Low factors except in this one instance. While The Court's holding that the trial court abused its the trial court appears to have transposed Nath's name discretion in assessing the amount of sanctions rests on where Texas Children's Hospital or Baylor's name should two erroneous propositions: (1) the trial court omitted have been, we should view this transposition as merely a from its analysis a single Low factor regarding the extent typographical error which may be forgiven, rather than an to which Texas Children's Hospital and Baylor caused the omission. Cf. Bd. of Adjustment of City of San Antonio v. accrual of their own attorney's fees, see Low, 221 S.W.3d Wende, 92 S.W.3d 424, 428 n.2 (Tex. 2002) (reading the at 620–21 n.5; and (2) the trial court was required printed word "riot" to mean "not" in a statute containing a to consider that factor when assessing monetary typographical error); City of Amarillov Martin, 971 sanctions. S.W.3d at . S.W.2d 426, 428 n.1 (Tex. 1998) (inserting the word "not" into a statute to indicate the obvious legislative First, the trial court's exhaustive findings of fact and intent); Beall v. Chatham, 99 S.W. 1116, 1117–18 conclusions of law in support of its sanctions award (Tex. 1907) (affirming a judgment containing a indicate that it considered all of the Low factors. typographical error which obscured the trial court's Paragraph 91 of the Texas Children's Hospital order reasoning). After all, Nath's conduct was covered fully by concluded: other Low factors that the trial court considered. In determining the amount of sanctions, this Court has The trial court's extensive findings of fact and considered the factors listed in Low v. Henry, 221 S.W.3d conclusions of law regarding Baylor's request for at 620 & n.5. In light of Nath's bad faith and improper sanctions totaled forty-one pages and contained purposes, as set forth herein; Nath's knowledge of the law ninety-five discrete findings and conclusions. The trial as a former legal student; Nath's prior conduct as a court's findings and conclusions regarding Texas litigant in numerous cases; the expenses incurred by Children's Hospital's request for sanctions totaled Texas Children's Hospital as a result of the litigation and forty-two pages and contained ninety-four discrete their reasonable proportion to the amount Nath sought in findings and conclusions. Given the trial court's damages; the relative culpability of Nath, as set forth exhaustive effort to explain its decision and address the above; the minimal risk of chilling legitimate litigation Low factors, it seems a waste of judicial resources to activity posed by sanctions here; Nath's ability to pay for remand this case so that the trial court may correct a the damages he has caused Texas Children's Hospital; the typographical error. need for compensation to Texas Children's Hospital as a result of the damages inflicted upon it in defending Second, contrary to the Court's holding, a trial court against this lawsuit; the necessity of imposing a has as much discretion in determining which Low factors substantial sanction to curtail Nath's abuse of the judicial to consider as it does in determining the amount of the process and punish his bad faith and improper conduct; sanctions assessment. The Court cites Low for the the burdens on the court system attributable to Nath's proposition that when a factor is relevant, a trial court misconduct, including his consumption of extensive must consider it or risk reversal on appeal. __ S.W.3d at judicial time and resources in prosecuting this case; and __ (citing Low, 221 S.W.3d at 620–21). This the degree to which Nath's own behavior caused the reading of Low, which unnecessarily constrains a trial expenses for which Texas Children's Hospital seeks court's discretion, begs the question—who is to reimbursement, the Court concludes that Texas Children's determine whether a factor is relevant, and, under what Hospital should be awarded a substantial portion of its standard is that decision reviewed? In my view, we must attorney's fees to sanction Nath for his conduct. respect the trial court's discretion to determine which factors are relevant and its discretion to ensure that the summary judgment stage. The trial court witnessed all of amount of its sanctions assessment is appropriate and Nath's actions firsthand, found support in the record, and supported by evidence. After all, the trial court witnessed relied upon the factors this Court set out in Low to arrive the parties' behavior firsthand. at its assessment. Therefore, I would hold that the trial court did not abuse its discretion in assessing sanctions Furthermore, the Court's interpretation of Low's use against Nath. of "should" as creating a mandatory requirement is unconvincing. Just as this Court has held that a statute or The Court's remand of this case is especially rule containing "shall" does not always mandate action, troubling because the trial court judge who presided over surely our own use of "should" must likewise be the case for four years lost reelection in 2012. His interpreted to be merely directory. Cf. Lewis v. replacement will face the same disadvantage in reviewing Jacksonville Bldg. & Loan Ass'n, 540 S.W.2d 307, the sanctions assessment that the Court does 310–11 (Tex. 1976) (interpreting administrative today—she did not witness Nath's behavior rule containing "shall" to be merely directory, not firsthand. The current trial court's unfamiliarity with the mandatory); Chisholm v. Bewley Mills, 287 S.W.2d 943, parties and the litigation will require her to either conduct 945 (Tex. 1956) (interpreting statute containing "shall" to additional hearings or base her decision upon the same be merely directory, not mandatory); Thomas v. Groebl , cold record this Court cautions against. E.g., In re United 212 S.W.2d 625, 630–32 (Tex. 1948) (same). Scaffolding, Inc., 377 S.W.3d 685, 688 (Tex. 2012). Neither of these options are adequate substitutes for a Again, I would caution against excessive scrutiny of trial court's firsthand observations, and the Court should the trial court's application of the Low factors when the not remand the case for an unfamiliar trial court to trial court's assessment of sanctions, as a whole, does not reconsider sanctions. amount to an abuse of discretion. As we noted in Low, the amount of a penalty under Chapter 10 of the Civil Low provides boundaries for trial courts assessing Practice and Remedies Code should "begin with an sanctions. We must ensure that trial courts act within acknowledgment of the costs and fees incurred because these boundaries; however, we cannot have appellate of the sanctionable conduct." 221 S.W.3d at 621. The courts unnecessarily circumventing a trial court's trial court found that a large sanction was "required to discretion. Detailed findings of fact and conclusions of sufficiently punish Nath's conduct and deter similar law and an extensive record provide support for both the conduct in the future." The record details Texas decision to sanction and the amount of the sanctions. On Children's Hospital and Baylor's incurred attorneys' fees, the record here, I conclude that the trial court acted and the trial court's sanctions assessment excludes fees within its discretion. Because the Court holds otherwise, I related to the recusal proceedings.[1] The trial court, after respectfully dissent. finding ten of the thirteen Low factors to be applicable, had an ample basis for assessing sanctions at the amount --------- of Texas Children's Hospital and Baylor's incurred attorneys' fees. Notes: We might critique the final amount of the sanctions [1] See Peter Vieth, 2013: The Year in Review , Virginia imposed. We might reach a different result under de novo Lawyers Weekly, Dec. 9, 2013 ($881, 000 sanction review. But that is simply not our task. We normally award in a divorce proceeding was "the largest sanction afford the trial court considerable latitude under the abuse ever imposed" in Virginia); Cheryl Millet, Divorcee of discretion standard. We should not modify our test Slapped with Record-Setting $552K Sanction in Custody even when it yields unpalatable results. Provided that the Case, Daily Bus. Rev., Feb. 7, 2012 (discussing record trial court relies upon the guiding principles this Court setting sanctions award of $552, 000 in a California established in Low and supports its findings with divorce proceeding); Lisa Provence, Unusual outcome: evidence in the record, we should affirm even debatable $722K in sanctions, juror judges judge, The Hook, Nov. sanctions. Why? Because, as the trial judge wrote: "The 4, 2011, available at Court has witnessed much of this behavior firsthand." www.readthehook.com/101759/final-order -plaintiffs The trial court dealt with the parties throughout four sanctioned-722k-juror-judges-judge ($542, 000 sanction years of litigation. The court watched Nath cycle through against counsel and $180, 000 sanction against litigant claim after claim in multiple petitions. The court dealt was "one of the largest sanctions in Virginia legal with numerous attorneys. The court dealt with Nath's history"); Hunton & Williams and Wachovia Obtain last-minute effort to recuse the trial Largest Sanctions Award byTennesseeCourt , B US. W judge—followed by Nath's attempt to recuse the IRE N EW S R E LE AS E S, Nov. 13, 2006, judge overseeing the recusal process. The court availableathttp://www.businesswire.com/news/home/200 admonished Nath's attorneys to cease certain irrelevant 61113006140/en/Hunton-Williams-Wachovia-Obtain-Lar pursuits, and then saw Nath ignore this admonishment in gest-Sanctions-Award#.U6Q_WPldX0s ($1.2 million an affidavit reemphasizing irrelevant matters. Finally, the sanction against litigant was the "largest sanctions award trial court dismissed all of Nath's remaining claims at the ever granted by a Tennessee court"). Remedies Code only applies in proceedings in which neither Rule 13 nor Chapter 10 applies"). Chapter 9 has [2] Nath subsequently sued Dr. Allan Belzberg and his largely been subsumed by subsequent revisions to the employer, Johns Hopkins University, over an allegedly code. See Cynthia Nguyen, An Ounce of Prevention is defamatory statement Belzberg made regarding Nath in Worth a Pound of Cure?: Frivolous Litigation Diagnosis Belzberg's capacity as a Johns Hopkins employee. After a Under Texas Government Code Chapters 9 and 10, and battle over whether the trial court possessed personal Texas Rule of Civil Procedure 13, 41 S. Tex. L. Rev. jurisdiction over Belzberg and Johns Hopkins, Nath 1061, 1083–84 (2000) (theorizing "it would be nonsuited them. difficult to conceive of a scenario in which Chapter 9 would be applicable, " and noting that "there are only a [3] The trial court dismissed all the claims in Nath's fifth handful of cases that even cite Chapter 9, and these date and sixth amended petitions, even though the sixth from before the 1999 amendment to Section 9.012"). amended petition was Nath's only live pleading at the time of the hearing. [7] Section 10.001 of the Civil Practice and Remedies Code is worded similarly to Federal Rule of Civil [4] At a hearing on a motion to compel in July 2009 Procedure 11(b). See Low, 221 S.W.3d at 615. where Nath sought production of information regarding the patients Shenaq had seen, the court responded: [8] See also Chrysler Corp. v. Blackmon , 841 S.W.2d 844, 849 (Tex. 1992) (citing TransAmerican to note that I can't do that. You can't do that. The State Medical "[a] permissible sanction should, therefore, be no more Board could do that. Hospital Board, someone else. severe than required to satisfy legitimate purposes. This Somebody that's not here can do that. . . . means that a court must consider relatively less stringent sanctions first to determine whether lesser sanctions will You should be before some other board that has a fully promote compliance, deterrence, and discourage different authority than me. It shouldn't be used as a tool further abuse"). in your litigation. . . . [9] Although imposed pursuant to the federal groundless I'm wondering why you're asking me to uncover pleadings rule, see supra note 7, federal pleadings [Shenaq's alleged health issues and patients allegedly at sanctions may also provide a useful barometer to gauge risk] instead of the State Medical Board. That's my big the size of typical awards. See generally Maryann Jones, issue with your approach. . . . "Stop, Think, & Investigate": Should California Adopt You're coming to me asking me to blow open this cover. Federal Rule 11?, 22 Sw. U. L. Rev. 337, 354 (1993) When there is an agency out there that is well situated to (noting that "[w]hile there are reported cases of awards deal with all of the [privilege] issues that you are raising. exceeding $100, 000, a recent comprehensive survey of ... Rule 11 sanctions in the Fifth, Seventh, and Ninth Circuits shows that the median sanction imposed At another hearing on a motion to compel in January pursuant to Rule 11 [at that time was] $2, 500"). 2010, the court stated: [10] See Tex. Civ. Prac. & Rem. Code § 10.001 I think—I answered that by saying Dr. Shenaq's (providing that signing a pleading or motion certifies that condition is not in this suit. . . . "the pleading or motion is not being presented for any improper purpose, . . . each claim, defense, or other legal I think I was very clear about it last time. If I wasn't, I contention in the pleading or motion is warranted by want to be clear now. . . . existing law . . . [and] each allegation or other factual contention in the pleading or motion has evidentiary I said it's not relevant to this lawsuit. . . . support or, for a specifically identified allegation or factual contention, is likely to have evidentiary support It's irrelevant to your lawsuit so it's not your job to do it. after a reasonable opportunity for further investigation or Your doctor has an obligation to report it to his medical discovery"); see also Low, 221 S.W.3d at 615 board and they have a job to do. We don't. (recognizing that Chapter 10 requires analysis of each claim against each defendant). [5] Nath was defending a suit the Fifth Circuit ultimately determined to be groundless. See Petrello v. Prucka, 484 [11] Austin v. United States, 509 U.S. 602, 622 (1993). Fed.Appx. 939, 942–43 (5th Cir. 2012). [12] For example, the fourth amended petition claimed: [6] Chapter 9 of the Texas Civil Practice and Remedies Code also addresses frivolous pleadings and claims, but Defendants were further motivated to discredit Dr. Nath, its application is limited to proceedings in which neither damage his reputation, and remove him from their Rule 13 nor Chapter 10 applies. See Tex. Civ. Prac. & facilities because Dr. Nath had discovered that Dr. Rem. Code § 9.012(h); see also Low, 221 S.W.3d at 614 Shenaq had become partially or completely blind in one (noting "Chapter 9 of the Texas Civil Practice and eye after suffering a detached retina in 2003. . . . On information and belief, Defendants sought to protect their 772 (Tex. 1995). own interests when they failed to inform Dr. Shenaq's patients about Dr. Shenaq's compromised medical [26] For example, Chapter 10 specifies that anyone condition. . . . Drs. Grossman and Brunicardi, along with signing a pleading certifies that each allegation "has Baylor and [the Hospital], knew that Dr. Nath was evidentiary support or . . . is likely to have evidentiary concerned about, and was knowledgeable of, Dr. support after a reasonable opportunity for further Shenaq's condition and were fearful that Dr. Nath would investigation or discovery." Tex. Civ. Prac. & Rem. Code make Dr. Shenaq's condition public. § 10.001(3). Likewise, the trial court's sanctions order in Low indicated that the factual contentions "did not, on [13] For example, the sixth amended petition alleged January 31, 2002 [when the petition was filed], and do "that many patients were operated on or treated by Dr. not now, have evidentiary support; nor were they on Shenaq at Baylor and [the Hospital] after Dr. Shenaq had January 31, 2002, likely to have evidentiary support after become partially or completely blind in one eye after a reasonable opportunity for further investigation." 221 suffering a detached retina in November 2003 . . . ." S.W.3d at 617. [14] While bad faith must be coupled with groundless [27] This analysis need not detain us here. Nath engaged pleadings to support sanctions under Rule 13, in questionable discovery conduct surrounding the Tex.R.Civ.P. 13, an improper purpose alone is a original setting for the summary judgment motions. But sufficient predicate for sanctions under Chapter 10, Tex. even if this conduct was sanctionable as discovery abuse, Civ. Prac. & Rem. Code § 10.001; see Low, 221 S.W.3d it occurred during a time when Nath's fourth, fifth, and at 617 (discussing the disjunctive nature of Chapter 10's sixth amended petitions were on file—which we bases for sanctions). have found to be sanctionable pleadings. Thus, we need not assess whether such conduct was sanctionable for a [15] An attorney owes a client a duty to inform the client second reason. And in any event, the Hospital and Baylor of matters material to the representation, provided such did not move for discovery sanctions. matters are within the scope of representation. See, e.g. , Joe v. Two Thirty Nine Joint Venture , 145 S.W.3d 150, [28] See Nationwide Bi-Weekly Admin., Inc. v. Belo 160 (Tex. 2004). Corp., 512 F.3d 137, 146–47 (5th Cir. 2007); Williamson v. New Times, Inc., 980 S.W.2d 706, [16] Tex. Disciplinary R. of Prof'l Conduct pmbl. ¶ 1. 710–11 (Tex. App.—Fort Worth 1998, no pet.); Martinez v. Hardy, 864 S.W.2d 767, 776 (Tex. [17] Id. at ¶ 2. App.—Houston [14th Dist.] 1993, no writ); Gulf Atl. Life Ins. Co. v. Hurlbut, 696 S.W.2d 83, [18] Id. at ¶ 4. 97–98 (Tex. App.—Dallas 1985), rev'd on [19] Id. at ¶ 1. other grounds, 749 S.W.2d 762 (Tex. 1987). [20] See Tex. Civ. Prac. & Rem. Code § 10.002 [29] The list of nonexclusive factors we enumerated was: (providing that court may sanction a party or attorney a. the good faith or bad faith of the offender; under Chapter 10 "on its own initiative"); Tex.R.Civ.P. 13 (providing that court may sanction a party or attorney b. the degree of willfulness, vindictiveness, negligence, under Rule 13 "upon its own initiative"). or frivolousness involved in the offense; [21] Tex. Civ. Prac. & Rem. Code § 16.002(a). c. the knowledge, experience, and expertise of the offender; [22] "[A] defamatory statement is one that tends to injure a person's reputation." Hancock v. Variyam, 400 S.W.3d d. any prior history of sanctionable conduct on the part of 59, 62 (Tex. 2013). the offender; [23] Cf. Dolenz v. Boundy, 197 S.W.3d 416, e. the reasonableness and necessity of the out-of-pocket 421–22 (Tex. App.—Dallas 2006, pet. expenses incurred by the offended person as a result of denied) (affirming pleadings sanctions of $250 against a the misconduct; party when the party was a lawyer proceeding pro se and presumably aware that the claims were time-barred). f. the nature and extent of prejudice, apart from out-of-pocket expenses, suffered by the offended person [24] For example, on or about June 2, 2004, Nath learned as a result of the misconduct; his appointment at Baylor was not renewed because of his billing practices and minimal academic contributions. g. the relative culpability of client and counsel, and the Nath's affidavit also indicates he learned of seven other impact on their privileged relationship of an inquiry into allegedly defamatory statements in 2004. that area; [25] See also Able Supply Co. v. Moye, 898 S.W.2d 766, h. the risk of chilling the specific type of litigation involved; i. the impact of the sanction on the offender, including the offender's ability to pay a monetary sanction; j. the impact of the sanction on the offended party, including the offended person's need for compensation; k. the relative magnitude of sanction necessary to achieve the goal or goals of the sanction; l. burdens on the court system attributable to the misconduct, including consumption of judicial time and incurrence of juror fees and other court costs; n. the degree to which the offended person's own behavior caused the expenses for which recovery is sought. Low, 221 S.W.3d at 620 n.5 (quoting American Bar Association, Standards and Guidelines for Practice Under Rule 11 of the Federal Rules of Civil Procedure, reprinted in 121 F.R.D. 101, 104 (1988) (omission in original)). [30] We are confident in the trial court's ability to resolve this discrete issue on remand either on the existing record or, at most, after a hearing examining briefing accompanied by affidavits regarding the degree to which the Hospital and Baylor caused their attorney's fees. [1] Only the judge hearing the recusal motion may assess these sanctions. Tex.R.Civ.P. 18a(h). --------- Page 913 On July 3, 1988, the district court issued a docket control order pursuant to Rule 166 811 S.W.2d 913 (Tex. 1991) Page 915 TRANSAMERICAN NATURAL GAS CORPORATION, Relator, of the Texas Rules of Civil Procedure, which set a discovery cutoff date of April 3, 1989. The order allowed v. discovery to be conducted beyond that date only upon agreement of the parties. Hon. William R. POWELL, Judge of the 80th District Court of On March 7, 1989, Toma noticed the deposition of TransAmerican's president, K. Craig Shephard, to take Harris County, Texas, Respondent. place March 16. Two days later TransAmerican's counsel, who at that time was one of the attorneys in its No. C-9294. legal department, telephoned Toma's counsel to inform him that Shephard could not be available on March 16 Supreme Court of Texas. because of a previously scheduled deposition in another June 19, 1991 case. When counsel could not agree on another date for Shephard's deposition, TransAmerican filed a motion for Page 914 protection to quash the deposition notice and postpone the deposition. The motion stated that it would be James Kronzer, Don Henderson, Robert V. Holland, submitted to the trial court for ruling on March 17. [1] Jr., John C. Nabors, Karen Zuckerman, Bill Jones, However, the trial court did not rule on the motion on that Kenneth E. McKay and Joe H. Reynolds, Houston, for date. relator. Beginning April 3, the deadline set by the district Michael C. Feehan, Beverly Arleen Sandifer, G. court for completion of discovery, the parties' smoldering Byron Sims, Daniel J. Kasprzak, Jonathan C.S. Cox, Ann discovery problem started to flare. On that date, counsel Ryan Robertson and Donald F. Hawbaker, Houston, for for TransAmerican and Toma agreed that Shephard respondent. would be deposed after April 10 on a date to be agreed upon. Despite this understanding, counsel again failed to OPINION agree upon a date, and on April 19 Toma noticed Shephard's deposition for May 2 without HECHT, Justice. TransAmerican's consent. On April 20, upon receipt of this second deposition notice, TransAmerican's counsel In this original mandamus proceeding, wrote a letter to Toma's counsel informing him that TransAmerican Natural Gas Corporation seeks to compel Shephard would not be available May 2 because, as the Hon. William R. Powell, Judge of the 80th District before, he already had a deposition in another matter Court, to set aside his orders imposing sanctions for scheduled for that day. Toma's counsel replied by letter discovery abuse. The district court struck that he would not agree to reschedule the deposition. On TransAmerican's pleadings, dismissed its action against April 27, TransAmerican reset the date for submission of Toma Steel Supply, Inc., and granted Toma an its motion for protection to the trial court for ruling to interlocutory default judgment on its counterclaim against May 12. By this time, of course, the motion was moot, TransAmerican, reserving for trial only the amount of and it is not apparent why TransAmerican continued to damages due Toma. We conditionally grant the writ of seek a ruling. TransAmerican did not move the trial court mandamus. to postpone the May 2 deposition. I Also on April 27, Shephard's other deposition The underlying case is a complex, multi-party action scheduled for May 2 was cancelled, leaving him available arising out of Toma's sale of allegedly defective pipe to be deposed by Toma. However, TransAmerican's casing to TransAmerican. TransAmerican withheld counsel did not advise Toma's counsel that Shephard's payment for the casing, apparently some $2.3 million, schedule had changed so that he could be deposed on and sued Toma in April 1987 for damages allegedly May 2 after all, nor did Shephard appear on May 2 as caused by its use. Toma counterclaimed for $52 million noticed. TransAmerican ascribes its failure to produce damages resulting from TransAmerican's refusal to pay Shephard for deposition to miscommunication concerning for the casing. Numerous other parties also joined in the his schedule changes between attorneys in its legal litigation. department. Toma alleges that Shephard's failure to appear was purposeful and part of TransAmerican's intentional obstruction of the discovery process. ..... On May 8, Toma filed a response to TransAmerican's (5) An order striking out pleadings or parts thereof, March 14 motion for protective order, even though it ... or dismissing with or without prejudice the action or acknowledged that that motion was moot. Toma included proceedings or any part thereof, or rendering a judgment in its response, however, a motion for sanctions against by default against the disobedient party.... TransAmerican based on Shephard's failure to appear at the May 2 deposition. In return, TransAmerican filed its At the time of the district court's rulings, paragraph 3 own sanctions motion on May 11, urging that Toma's of Rule 215 stated in part: motion for sanctions was itself an abuse of the discovery process. Toma's and TransAmerican's motions for If the court finds a party is abusing the discovery sanctions both stated that they would be submitted to the process in seeking, making or resisting discovery ..., then court for ruling on May 12, the date set for submission of the court in which the action is pending may impose any TransAmerican's original motion for protection. sanction authorized by paragraphs (1), (2), (3), (4), (5), and (8) of paragraph 2b of this rule. Such order of On May 12, without hearing oral argument, [2] the sanction shall be subject to review on appeal from the district court signed an order final judgment. [4] Page 916 Page 917 granting Toma's motion for sanctions and striking Both paragraphs leave the choice of sanctions to the TransAmerican's pleadings in their entirety. sound discretion of the trial court. Bodnow Corp. v. City TransAmerican moved for reconsideration, which the of Hondo, 721 S.W.2d 839, 840 (Tex.1986). However, district court denied after hearing argument of counsel paragraph 2(b) explicitly requires that any sanctions but refusing to hear any evidence. Based upon his May imposed be "just". By referring to paragraph 2(b), 12 order striking TransAmerican's pleadings, the district paragraph 3 incorporates the same requirement. Thus, court issued an order on October 6 dismissing whether the district court imposed sanctions under TransAmerican's action with prejudice, rendering an paragraph 2(b) or paragraph 3, we consider whether those interlocutory default judgment against TransAmerican sanctions were just. [5] See Bodnow, 721 S.W.2d at 840. and in favor of Toma on its counterclaim, and setting the case for trial solely on the issue of the damages to be In our view, whether an imposition of sanctions is awarded Toma. just is measured by two standards. First, a direct relationship must exist between the offensive conduct and TransAmerican sought mandamus relief from the the sanction imposed. This means that a just sanction court of appeals to compel the district court to set aside must be directed against the abuse and toward remedying his May 12 and October 6 orders. A divided court of the prejudice caused the innocent party. It also means that appeals denied TransAmerican leave to file its petition the sanction should be visited upon the offender. The trial for writ of mandamus in an unpublished per curiam court must at least attempt to determine whether the opinion. [3] TransAmerican then moved for leave to file offensive conduct is attributable to counsel only, or to the its petition in this Court. We granted the motion in order party only, or to both. This we recognize will not be an to review the propriety of the discovery sanctions easy matter in many instances. On the one hand, a lawyer imposed by the district court. cannot shield his client from sanctions; a party must bear some responsibility for its counsel's discovery abuses II when it is or should be aware of counsel's conduct and the violation of discovery rules. On the other hand, a The sanctions imposed by the district court are party should not be punished for counsel's conduct in among those authorized for various discovery abuses which it is not implicated apart from having entrusted to under Rule 215 of the Texas Rules of Civil Procedure. counsel its legal representation. The point is, the The district court did not specify what provision of Rule sanctions the trial court imposes must relate directly to 215 it relied upon. The portions of the rule applicable to the abuse found. the circumstances here are paragraphs 2(b)(5) and 3. Paragraph 2(b)(5) provides in part: Second, just sanctions must not be excessive. The punishment should fit the crime. A sanction imposed for If a party or an officer ... of a party ... fails to comply discovery abuse should be no more severe than necessary with proper discovery requests or to obey an order to to satisfy its legitimate purposes. It follows that courts provide or permit discovery, ... the court in which the must consider the availability of less stringent sanctions action is pending may, after notice and hearing, make and whether such lesser sanctions would fully promote such orders in regard to the failure as are just, and among compliance. others the following: These standards set the bounds of permissible sanctions under Rule 215 within which the trial court is to exercise sound discretion. [6] The imposition of very Shephard's deposition for a specific date and punished severe sanctions is limited, not only by these standards, any failure to comply with that order by contempt or but by constitutional due process. The sanctions the another sanction. He also could have taxed the costs of district court imposed against TransAmerican are the the deposition against TransAmerican and awarded Toma most devastating attorney fees. The range of sanctions available to the district court under Rule 215 is quite broad. The district Page 918 court dismissed TransAmerican's claims against Toma and rendered default judgment for Toma on its a trial court can assess against a party. When a trial court counterclaim solely because, as the record before us strikes a party's pleadings and dismisses its action or establishes, TransAmerican's president failed to present renders a default judgment against it for abuse of the himself for his deposition. [8] Nothing in the discovery process, the court adjudicates the party's claims without regard to their merits but based instead upon the Page 919 parties' conduct of discovery. "[T]here are constitutional limitations upon the power of courts, even in aid of their record before us even approaches justification for so own valid processes, to dismiss an action without severe a sanction. [9] affording a party the opportunity for a hearing on the merits of his cause." Societe Internationale v. Rogers, We recognize that we affirmed a similar sanction in 357 U.S. 197, 209-10, 78 S.Ct. 1087, 1094, 2 L.Ed.2d Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 1255 (1958), citing Hammond Packing Co. v. Arkansas, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 212 U.S. 322, 350-51, 29 S.Ct. 370, 379-80, 53 L.Ed. 530 S.Ct. 2279, 90 L.Ed.2d 721 (1986). In that case the trial (1909), and Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, court struck defendant's answer and rendered a default 42 L.Ed. 215 (1897); accord Insurance Corp. of Ireland, judgment against it based upon the failure of defendant Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, and his employees to appear for their depositions on three 705-06, 102 S.Ct. 2099, 2105-06, 72 L.Ed.2d 492 (1982). separate occasions without explanation. Even assuming Discovery sanctions cannot be used to adjudicate the that Downer was correctly decided, the instant case does merits of a party's claims or defenses unless a party's not show the same pattern of abuse present in Downer. hindrance of the discovery process justifies a Furthermore, Downer 's approval of the sanction of presumption that its claims or defenses lack merit. default judgment was specifically based upon the facts of Insurance Corp. of Ireland, 456 U.S. 694, 705-06, 102 that case, and the holding in that case is limited to those S.Ct. 2099, 2105-06; Rogers, 357 U.S. at 209-10, 78 facts. Rendition of default judgment as a discovery S.Ct. at 1094; Hammond Packing, 212 U.S. at 350-51, 29 sanction ought to be the exception rather than the rule. S.Ct. at 379-80. However, if a party refuses to produce material evidence, despite the imposition of lesser There are cases, of course, when striking pleadings, sanctions, the court may presume that an asserted claim dismissal, rendition of default and other such extreme or defense lacks merit and dispose of it. Insurance Corp. sanctions are not only just but necessary. See National of Ireland, 456 U.S. at 705-06, 102 S.Ct. at 2105-06. Hockey League, 427 U.S. at 642, 96 S.Ct. at 2780. In this Although punishment and deterrence are legitimate case, however, the record before us establishes that the purposes for sanctions, National Hockey League v. severe sanctions the district court imposed against Metropolitan Hockey Club, Inc., 427 U.S. 639, 96 S.Ct. TransAmerican were manifestly unjust in violation of 2778, 49 L.Ed.2d 747 (1976) (per curiam); Bodnow Corp. Rule 215. v. City of Hondo, 721 S.W.2d at 840 they do not justify III trial by sanctions, Hammond Packing, 212 U.S. at 350-51, 29 S.Ct. at 379-80; Hovey, 167 U.S. at 413-14, We next consider whether TransAmerican has an 17 S.Ct. at 843. Sanctions which are so severe as to adequate remedy by appeal. If it does, then the writ of preclude presentation of the merits of the case should not mandamus must be denied. State v. Walker, 679 S.W.2d be assessed absent a party's flagrant bad faith or counsel's 484, 485 (Tex.1984). Rule 215, paragraph 3 states that callous disregard for the responsibilities of discovery orders imposing discovery sanctions "shall be subject to under the rules. See National Hockey League, 427 U.S. at review on appeal from the final judgment." Today we 642-643, 96 S.Ct. at 2780-81. [7] have held in Braden v. Downey, 811 S.W.2d 922 (1991), that sanctions should not be imposed in such a way that In the present case, it is not clear whether effective appellate review is thwarted. Whenever a trial TransAmerican or its counsel or both should be faulted court imposes sanctions which have the effect of for Shephard's failure to attend his deposition. Moreover, adjudicating a dispute, whether by striking pleadings, there is nothing in the record to indicate that the district dismissing an action or rendering a default judgment, but court considered imposition of lesser sanctions or that which do not result in rendition of an appealable such sanctions would not have been effective. If judgment, then the eventual remedy by appeal is anything, the record strongly suggests that lesser inadequate. Specifically, in this case TransAmerican does sanctions should have been utilized and perhaps would not have an adequate remedy by appeal because it must have been effective. The district court could have ordered suffer a trial limited to the damages claimed by Toma. gamesmanship. Thus I write separately to offer additional The entire conduct of the litigation is skewed by the guidance to the bench and bar. removal of the merits of TransAmerican's position from consideration and the risk that the trial court's sanctions In assessing sanctions under Rule 215 of the Texas will not be set aside on appeal. Resolution of matters in Rules of Civil Procedure, the punishment must fit the dispute between the parties will be influen [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4041012. Public record. Not legal advice.