                                           COURT OF APPEALS
                                        EIGHTH DISTRICT OF TEXAS
                                             EL PASO, TEXAS

 SYBLE HOOD,                                                 §
                                                                                No. 08-07-00324-CV
                       Appellant,                            §
                                                                                   Appeal from the
 v.                                                          §
                                                                                 109th District Court
 EDWARD D. JONES & CO., L.P. AND                             §
 ROBBY R. ROGERS,                                                            of Andrews County, Texas
                                                             §
                       Appellees.                                                    (TC#14,971)
                                                             §

                                                    OPINION

         This appeal arises from a lawsuit filed by Syble Hood against Edward D. Jones & Co., L.P.

and Robby R. Rogers for wrongful discharge based on age discrimination. Summary judgment was

granted in favor of Rogers on October 12, 2006. Two weeks later, Hood’s claims against Jones were

submitted to a jury, which returned a take-nothing judgment in Jones’ favor. The next day, Hood

sought relief pursuant to Rule 166a(h)1 based on discrepancies between affidavits filed in support

of Rogers’ motion for summary judgment and trial testimony offered by Rogers and other Jones’

employees. She also filed a motion for sanctions pursuant to Rule 13. Over the next few months,

Hood filed two supplements to these motions, a motion to compel discovery, two subpoenas dueces

tecum, and additional requests for production of documents. Appellees filed responses claiming

attorney/client privilege, a motion to quash the subpoena duces tecum, a motion for protective order,

and a request for expenses pursuant to Rule 215.1(d). Ultimately, the trial court denied relief to


         1
              Rule 166a(h) relates to summary judgment affidavits made in bad faith: “Should it appear to the
satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith
. . . the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable
expenses which the filing of the affidavits caused him to incur, including reasonable attorney’s fees . . . .”
T EX .R.C IV .P. 166a(h).
Hood and awarded attorney’s fees and costs in favor of Appellees instead.2 Hood and her attorney

filed a joint notice of appeal. This appeal addresses only the denial of Hood’s requested sanctions

and the fees and costs awarded against her attorney.

                                              FACTUAL SUMMARY

         On April 18, 1990, Hood was employed as a Branch Office Administrator (BOA) of the

Andrews, Texas office of Edward D. Jones & Co. She was 55 years old at the time she was hired.

Robby Rogers was her manager and the Investment Representative for the office. Hood was fired

on May 1, 1998 for insubordination, poor work performance, failure to perform ordered tasks, and

absenteeism. On November 2, 1998, she filed suit alleging that she was wrongfully terminated based

upon her age.3 The final judgment was signed January 3, 2007. Shortly thereafter, Hood filed a fifth

request for production by which she sought:

         Any documents in your “POSSESSION, CUSTODY, OR CONTROL” which reflect
         the IDENTITY of all persons or entities who participated in any way in drafting
         and/or making revisions to and final approval of Defendant, Robby Rogers’ Motion
         for Lack of Jurisdiction and Motion for Summary Judgment and Brief in Support
         Thereof dated January 4, 2006 and the affidavits of Robby R. Rogers and Steve
         Rarick, attached as Exhibit A and B thereto including, but not limited to, faxing,
         mailing or emailing of the drafts of the same or the final drafts of the motion and
         affidavits and any discussions of and decisions made by and between McWhorter,
         Cobb & Johnson, L.L.P., Edward D. Jones & Co., L.P, Kimber Monroe, and/or the
         Edward D. Jones’ legal department, Steve Rarick and Robby R. Rogers or any other
         person or entity, their representatives, agents, servants and employees.

         Any documents in your “POSSESSION, CUSTODY, OR CONTROL” which reflect
         all discussions of and all decisions made regarding all drafts and/or revisions and
         final approval for Defendant, Robby Rogers’ Motion for Lack of Jurisdiction and


         2
           The propriety of the summary judgment in favor of Rogers and the denial of discovery under Rule
166a(h) are pending in a separate appeal before the Court, bearing cause number 08-07-00093-CV.

         3
             For our purposes here, an employer commits an unlawful employment practice if because of race, color,
disability, religion, sex, national origin, or age the employer discharges an individual. T EX .L AB .C O D E A N N . § 21.051
(Vernon 2006).
         Motion for Summary Judgment and Brief in Support Thereof dated January 4, 2006
         and the affidavits of Robby R. Rogers and Steve Rarick, attached as Exhibit A and
         B thereto including, but not limited to, faxes, mailed documents, letters of
         transmittal, memos, notes, emails by and between McWhorter, Cobb & Johnson,
         L.L.P., Edward D. Jones & Co., L.P., Kimber Monroe, and/or the Edward D. Jones’
         legal department, Steve Rarick and Robby R. Rogers or any other person or entity,
         their representatives, agents, servants and employees.

Appellees responded that the documents requested were privileged under Rule 192.5 and Rule of

Evidence 503. Hood countered with a motion to compel production and a motion to submit the

documents to an in camera review. Appellees filed a request for expenses pursuant to Rule 215.1(d).

On February 22, 2007, the trial court signed orders denying Hood’s motions.

                                             SANCTIONS

         The sole issue presented is whether the trial court erred in denying Hood’s motion for

sanctions and in awarding attorneys’ fees and expenses to Appellees. The decision to impose Rule

13 sanctions lies within the trial court’s sound discretion. Mattly v. Spiegel, Inc., 19 S.W.3d 890,

895 (Tex.App.–Houston [14th Dist.] 2000, no pet.). We will not set aside a sanctions order absent

an abuse of discretion. Id. A trial court abuses its discretion by (1) acting arbitrarily and

unreasonably, without reference to any guiding rules or principles, or (2) misapplying the law to the

established facts of the case. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.

1985). We will overturn a trial court’s discretionary ruling only when it is based on an erroneous

view of the law or a clearly erroneous assessment of the evidence. Id. Our review encompasses an

examination of the entire record. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex.

1996).

         Rule 13 requires that a party demonstrate that the pleadings are groundless, or that the

opposing party brought the claim in bad faith or to harass the party. TEX .R.CIV .P. 13. “One purpose

of the rule is to check abuses in the pleading process; that is, to ensure that at the time the challenged
pleading was filed, the litigant’s position was factually grounded and legally tenable.” Appleton v.

Appleton, 76 S.W.3d 78, 86-87 (Tex.App.–Houston [14th Dist.] 2002, no pet.), citing Mattly v.

Spiegel, Inc., 19 S.W.3d 890, 896 (Tex.App.–Houston [14th Dist.] 2000, no pet.). The trial court

must examine the facts and circumstances in existence at the time the pleading was filed to

determine whether Rule 13 sanctions are proper. Id. Bad faith does not exist when a party merely

exercises bad judgment or is negligent; rather, “it is the conscious doing of a wrong for dishonest,

discriminatory, or malicious purposes.” Id. Courts must presume the papers are filed in good faith,

and the party moving for sanctions bears the burden of overcoming this presumption. Id.

                             Denial of Hood’s Request for Sanctions

       At the hearing on Hood’s motion, her attorney admitted that he had no evidence to support

his claim that Appellees should be sanctioned. He testified to his personal belief that the affidavits

were intentionally drafted so that Rogers could prevail on his motion for summary judgment.

Counsel argued that someone had made the decision to include statements in the affidavits that were

not true. Thus, he needed post-judgment discovery of the attorneys’ files to gather the evidence he

believed would establish bad faith. Once he found the evidence of bad faith, he could support his

request for sanctions.

       Hood had requested post-judgment relief under Rule 13 and Rule 166a(h). Her request

derives from the purported contradiction between affidavits in support of Rogers’ motion for

summary judgment and trial testimony of Rogers, Rarick, and Kranzberg. Simply stated, the issue

is whether Rogers had the right to terminate employees without approval of the Human Resources

Department. Hood alleges that the affidavits were not the result of mere bad judgment and

negligence, but were consciously drafted and executed to obtain dismissal of the claims against

Rogers, with Jones’ employees knowing full well the statements were false. Appellees respond that
the affidavits are not false merely because Jones has procedures in place requiring ratification by

Human Resources. Alternatively, they argue that even if the statements were contradictory, it is not

an indication of dishonesty or bad faith. Appleton, 76 S.W.3d at 86-87. It is “the conscious doing

of a wrong for dishonest, discriminatory, or malicious purpose,” which must be shown for relief

under Rule 13. Campos v. Ysleta General Hosp., Inc., 879 S.W.2d 67, 71 (Tex.App.–El Paso 1994,

writ denied).

       The trial court’s decision to deny post-judgment discovery is not at issue in this appeal. Here,

Hood only challenges the trial court’s denial of her request for sanctions. In the absence of any

evidence to support the sanctions, we are hard pressed to conclude that the trial court abused its

discretion.

                                    Award of Fees and Costs

       Hood briefly attacks the award of fees and costs, which she characterizes as Rule 13

sanctions. She argues that Appellees were required to demonstrate bad faith and she complains that

the trial court failed to identify any sanctionable conduct. Actually, Appellees requested relief

pursuant to Rule 215.1(d), which provides in pertinent part:

       (d) Disposition of Motion to Compel: Award of Expenses.

                                               .   .   .

              If the motion is denied, the court may, after opportunity for hearing, require
       the moving party or attorney advising such motion to pay to the party or deponent
       who opposed the motion the reasonable expenses incurred in opposing the motion,
       including attorney fees, unless the court finds that the making of the motion was
       substantially justified or that other circumstances make an award of expenses unjust.

The motions to compel and the motion for sanctions were filed by Hood. The trial court denied the

motions and then considered Appellees’ request for expenses. In determining the amount of

attorneys’ fees and reasonable expenses, the rule requires the court to “award expenses which are
reasonable in relation to the amount of work reasonably expended in obtaining an order compelling

compliance or in opposing a motion which is denied.” TEX .R.CIV .P. 215.1(d). Counsel for Jones

testified that his firm had incurred $9,050 in attorneys’ fees and $258.31 in expenses related to

Hood’s motions. The trial court ordered that Hood’s attorney pay to Appellees $3,000 in fees and

$258.31 in expenses, the reasonableness of which is not questioned here. Finding no abuse of

discretion, we overrule the sole issue and affirm the judgment of the trial court below.



                                              ANN CRAWFORD McCLURE, Justice
January 29, 2009

Before Chew, C.J., McClure, J., and Barajas, C.J. (Ret.)
Barajas, C.J. (Ret.), sitting by assignment
