



Marshall Land                                                       



TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN




ON MOTION FOR REHEARING



NO. 03-96-00283-CV




Marshall Land, Appellant


v.


AT & S Transportation, Inc., Appellee




FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
NO. 93-0719, HONORABLE JACK ROBISON, JUDGE PRESIDING


	The opinion and judgment issued by this Court on March 27, 1997, are withdrawn and the
following opinion is substituted in its place.  
	Appellant, Marshall Land, sued his employer, AT & S Transportation, claiming AT & S
failed to provide a safe work environment.  Land appeals a judgment awarding $48,000.00 to AT & S
pursuant to AT & S's counterclaim for sanctions under Rule 13 of the Texas Rules of Civil Procedure.  In
four points of error, Land complains that:  (1) the order awarding sanctions is defective because the trial
court failed to state the particulars of good cause therein; (2) the court abused its discretion in awarding
sanctions because AT & S did not show good cause; (3) the court erred in finding Land committed fraud
because AT & S did not plead fraud; and (4) there was no evidence or insufficient evidence to support an
award of sanctions.  We will affirm the trial court's judgment.

BACKGROUND
	Land allegedly sustained a back injury while working cattle for AT & S.  AT & S was a
nonsubscriber to the workers' compensation system; therefore, Land sued AT & S directly for negligent
failure to provide a safe work environment.  AT & S filed a counterclaim for sanctions pursuant to Rule 13
of the Texas Rules of Civil Procedure, claiming Land had no basis in law or fact for bringing the action
against AT & S.  Following a three day trial, the jury returned a take-nothing verdict in favor of AT & S. 
The trial court did not submit the counterclaim for sanctions to the jury; it held a hearing on the matter after
the jury returned its verdict but before the court rendered its final judgment.
	At the evidentiary hearing on sanctions, the trial court took judicial notice of the contents
of its file, including Land's deposition testimony, along with the evidence admitted at the jury trial. After
considering all of the evidence introduced at both proceedings and the arguments of counsel, the court
awarded AT &S $48,000.00 in attorney's fees as sanctions against Land.  The court found:  (1) Land's
pleadings were groundless, had no basis in law or fact, were not warranted by a good faith argument for
the extension, modification, or reversal of existing law, and were false; (2) the allegations forming the basis
of the lawsuit were brought in bad faith and for the sole purpose of harassment; and (3) Land committed
fraud upon AT & S and the court.  In a separate document, the court made findings of fact and conclusions
of law supporting its ruling.  Land approved the trial court's order as to form and did not object or file a
motion for new trial complaining of the order's lack of particularity.
	Land filed a partial statement of facts with this Court pursuant to Texas Rule of Appellate
Procedure 53(d).  Pursuant to his limited points on appeal, Land filed with this Court the transcript of the
cause, the statement of facts of Land's testimony from the trial on the merits, and the statement of facts from
the sanctions hearing.  AT & S did not supplement the appellate record.

DISCUSSION
	In his first point of error, Land complains that the portion of the final judgment awarding
sanctions is defective because it does not state the particulars of good cause as required by Rule 13.  See
Tex. R. Civ. P. 13.  Rule 13 provides the following:

Courts shall presume that pleadings, motions, and other papers are filed in good faith.  No
sanctions under this rule may be imposed except for good cause, the particulars of
which must be stated in the sanctions order.


Tex. R. Civ. P. 13 (emphasis added).
	AT & S argues, however, that Land waived any error by failing to object to the form of
the order or requesting more particularity in the order.  While this is a case of first impression for this Court,
several courts of appeals have held that complaining parties waive the requirement of particularity by failing
to make a timely complaint.  See, e.g., Campos v. Ysleta Gen. Hosp., Inc., 879 S.W.2d 67, 70 (Tex.
App.--El Paso 1994, writ denied); McCain v. NME Hosp., Inc., 856 S.W.2d 751, 756 (Tex.
App.--Dallas 1993, no writ); Bloom v. Graham, 825 S.W.2d 244, 247 (Tex. App.--Fort Worth 1992,
writ denied). Other courts have held that the language of Rule 13 is mandatory and failure to comply
constitutes an abuse of discretion.  See, e.g., GTE Communications Sys. Corp. v. Curry, 819 S.W.2d
652, 654 (Tex. App.--San Antonio 1991, no writ); Watkins v. Pearson, 795 S.W.2d 257, 260 (Tex.
App.--Houston [14th Dist.] 1990, writ denied).
	We agree with the courts requiring an appellant to object to a lack of particularity  in the
trial court before raising the complaint on appeal.  While Rule 13 calls for particularity, Land did not object
to any lack of particularity before the trial court.  He has, therefore, failed to preserve for review any
complaint regarding the order's lack of particularity.  See Tex. R. App. P. 52(a); Campos, 879 S.W.2d
at 70; Bloom, 825 S.W.2d at 247.
	In his second and fourth points of error, Land complains that the trial court abused its
discretion by imposing sanctions.  Land contends that AT & S failed to show good cause  justifying
sanctions and argues the evidence is legally and factually insufficient to support the imposition of sanctions.
	The imposition of Rule 13 sanctions is within the sound discretion of the trial court, and we
will set aside that decision only upon a showing of a clear abuse of discretion.  GTE Communications Sys.
Corp. v. Tanner, 856 S.W.2d 725, 730 (Tex. 1993); Woodward v. Jaster, 933 S.W.2d 777, 782 (Tex.
App.--Austin 1996, no writ).  A trial court abuses its discretion only when it acts in an unreasonable and
arbitrary manner or when it acts without reference to any guiding rules or principles.  Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159
(1986); National Union Fire Ins. Co. of Pittsburgh v. Olson, 920 S.W.2d 458, 462 (Tex.
App.--Austin 1996, no writ).
	On appeal, Land provided a partial statement of facts in compliance with Texas Rule of
Appellate Procedure 53(d), which provides:

If appellant requests or prepares a partial statement of facts, he shall include in his request
or proposal a statement of the points to be relied on and shall thereafter be limited to such
points.  If such statement is filed, there shall be a presumption on appeal that nothing
omitted from the record is relevant to any of the points specified or to the disposition of the
appeal.  Any other party may designate additional portions of the evidence to be included
in the statement of facts.


Tex. R. App. P. 53(d).  Land designated four points of error and timely submitted a partial statement of
facts to this Court. (1)
	In determining whether the trial court abused its discretion, we traditionally review the entire
record.  See Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996); Simon v. York
Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987).  The Texas Supreme Court and this Court have held,
however, that there are exceptions to the requirements that we review the entire record.  See Christiansen
v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) (when the requirements of Rule 53(d) are met, the
reviewing court need not review the entire record to determine harm); Steger & Bizzell v. Vandewater
Constr., Inc., 811 S.W.2d 687, 692 (Tex. App.--Austin 1991, writ denied) (Rule 53(d) is an exception
to the Texas venue statutes' requirement that an appellate court review the entire record).
	Even when a party strictly complies with the requirements of Rule 53(d), however, there
are instances in which a partial record is not sufficient.  See Schafer v. Conner, 813 S.W.2d 154, 155
(Tex. 1991); S.H. v. National Convenience Stores, 936 S.W.2d 406, 407 (Tex. App.--Houston [1st
Dist.] 1996, no writ h.).  When an appellant raises a legal or factual sufficiency challenge, an entire
statement of facts is required, and a partial statement of facts will not suffice.  See Schafer, 813 S.W.2d
at 155; (2) cf. Greenwood v. State, 823 S.W.2d 660, 660-61 (Tex. Crim. App. 1992).  A complete
statement of facts or an agreed statement of facts must be presented to the reviewing court; without one,
the court presumes the omitted evidence supports the trial court's judgment.  Thus, an appellant cannot
meet its burden on appeal to demonstrate error in the judgment.  See Schafer, 813 S.W.2d at 155;
Christiansen, 782 S.W.2d at 843.  
	Although Land submitted the statement of facts from the sanctions hearing and complied
with the requirements of Rule 53(d), the limited record on appeal reveals that the trial court considered
more in deciding its ruling.  The statement of facts from the hearing, the trial court's judgment, and the
findings of fact and conclusions of law show that in reaching its decision on sanctions, the trial court
considered the documentary and testimonial evidence presented at trial, as well as Land's pre-trial
deposition testimony.  The parties argued extensively about the contents and significance of evidence not
before us on appeal.  Land has not provided us with the entire record from the trial; therefore, we must
presume the omitted evidence supports the judgment.  Without a complete record, Land cannot
demonstrate insufficiency of the evidence to support sanctions, and thus, we cannot say the trial court
abused its discretion by its order.  Accordingly, we overrule points of error two and four.
	Because we presume the trial court's sanctions order is supported by sufficient evidence
and because a finding of fraud is not required to support the imposition of sanctions, we need not address
Land's third point of error challenging the trial court's finding of fraud.  See Tex. R. Civ. P. 13.

CONCLUSION
	We affirm the trial court's judgment.


  
					Marilyn Aboussie, Justice
Before Justices Powers, Aboussie and Jones
Affirmed
Filed:   June 5, 1997
Publish
1.        Land filed with this Court the statement of facts from the sanctions hearing; from the jury trial, he
excerpted only his testimony.  
2.        In Schafer, the supreme court disapproved of the appellate court's ruling that the appellant had failed
to meet the requirements of Rule 53(d) merely because he filed a statement of points to be relied on with
his request for a partial statement of facts rather than in the request.  Schafer, 813 S.W.2d at 155.  The
court treated the appellant's partial statement of facts as meeting the requirements of Rule 53(d) but stated
that, nevertheless, in the absence of a complete statement of facts, in a sufficiency of the evidence challenge,
the appellate court must presume that the omitted evidence supports the trial court's judgment.  Id.


n of the
appeal.  Any other party may designate additional portions of the evidence to be included
in the statement of facts.


Tex. R. App. P. 53(d).  Land designated four points of error and timely submitted a partial statement of
facts to this Court. (1)
	In determining whether the trial court abused its discretion, we traditionally review the entire
record.  See Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996); Simon v. York
Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987).  The Texas Supreme Court and this Court have held,
however, that there are exceptions to the requirements that we review the entire record.  See Christiansen
v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) (when the requirements of Rule 53(d) are met, the
reviewing court need not review the entire record to determine harm); Steger & Bizzell v. Vandewater
Constr., Inc., 811 S.W.2d 687, 692 (Tex. App.--Austin 1991, writ denied) (Rule 53(d) is an exception
to the Texa