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           DISSENTING OPINION

                                         No. 04-07-00465-CV

                                   UNIFUND CCR PARTNERS,
                                          Appellant

                                                  v.

                                            Javier VILLA,
                                               Appellee

                      From the 111th Judicial District Court, Webb County, Texas
                                 Trial Court No. 2006CVF001343-D2
                              Honorable Raul Vasquez, Judge Presiding

Opinion by: Catherine Stone, Justice
Dissenting opinion by: Sandee Bryan Marion, Justice
Dissenting opinion by: Rebecca Simmons, Justice

Sitting:          Alma L. López, Chief Justice
                  Catherine Stone, Justice
                  Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Phylis J. Speedlin, Justice
                  Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: September 17, 2008

           I must respectfully dissent because I believe the $18,685 in sanctions assessed against

Unifund was excessive. Also, I disagree with the court’s consideration of this case en banc.

           En banc consideration of a case is not favored and should not be ordered unless necessary

to secure or maintain uniformity of a court’s decisions or unless extraordinary circumstances require

en banc consideration. TEX. R. APP P. 41.2(c). The standard for en banc consideration is not
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whether a majority of the en banc court disagrees with all or a part of a panel opinion. See

Rodriguez v. Cuellar, 143 S.W.3d 251, 265 (Tex. App.—San Antonio 2004, pet. dismissed) (López,

C.J., dissenting). Rather, when there is no conflict among panel decisions, the existence of

“extraordinary circumstances” is required before en banc consideration may be ordered. TEX. R.

APP. P. 41.2(c). Here, Villa’s sole reason for seeking en banc review is “the majority failed to apply

[the abuse of discretion standard].” Villa’s basis for this argument is that the panel opinion used the

phrase “the trial court erred” rather than “the trial court abused its discretion.” Villa does not

explain how the panel departed from the abuse of discretion standard, and the Villas’ only basis for

requesting en banc review is to “maintain uniformity of th[is] Court’s decisions.” However, the

Fourth Court of Appeals cases cited by Villa for this contention merely reflect a different outcome

based on the individual facts presented in each unique case. I do not believe en banc consideration

in this case is “necessary” to maintain uniformity with prior Fourth Court of Appeals decisions. Nor

do I think the panel’s limited holding that the amount of sanctions imposed was excessive is an

“extraordinary circumstance” that “requires” en banc consideration. Here, the other members of this

court disagree with the panel’s decision, but because that is not the standard for en banc

consideration, I voted to deny the motion for rehearing en banc.

       As to whether the $18,685 in sanctions was excessive, we review a trial court’s assessment

of a sanction for an abuse of discretion. Low v. Henry, 221 S.W.3d 609, 619 (Tex. 2007). Merely

because a trial court may decide a matter within its discretion in a different manner than an appellate

court would in a similar circumstance does not demonstrate that an abuse of discretion has occurred.

Id. However, in appropriate cases, the sufficiency of the evidence is a relevant factor in assessing

whether the trial court abused its discretion. Beaumont Bank v. Buller, 806 S.W.2d 223, 226 (Tex.

1991); Gardner v. Gardner, 229 S.W.3d 747, 751 (Tex. App.—San Antonio 2007, no pet.).

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       Here, the trial court assessed sanctions pursuant to Civil Practice and Remedies Code section

10.002(c), finding that the $18,685 in sanctions “shall encompass Villa’s costs for inconvenience

and harassment caused by the subject litigation . . . .” The only evidence concerning harassment was

Mr. Villa’s testimony that he did not have any information that Unifund “did this just to harass [him]

. . . .” As for inconvenience, Mr. Villa testified, without elaboration, that he was “worried,” and

Mrs. Villa testified she “got very upset,” “started worrying,” and “started yelling at [Mr. Villa].”

Based on this record, I do not believe the trial court had sufficient evidence upon which to exercise

its discretion to award $18,685 for Villa’s “inconvenience and harassment caused by the subject

litigation.” See Gardner, 229 S.W.3d at 751.

       The majority states the trial court “was informed that Unifund had over a billion dollars in

assets” and “[e]vidence was presented that Unifund had eighty-four operating cases in Webb County

alone.” However, the trial court’s order does not indicate the $18,685 in sanctions was for the

purpose of deterring conduct, nor is there evidence in the record to support such a finding. Villa’s

attorney asked the court to enter sanctions against Unifund and/or Unifund’s attorneys, stating in

his argument that Unifund had over a billion dollars in assets and eighty-four operating cases in

Webb County. Counsel did not define the nature of the eighty-four “operating” cases. Thus,

nothing in the record supports any implied finding that Unifund has a history of filing lawsuits for

“any improper purpose,” that Unifund will continue to file lawsuits for “any improper purpose,” or

that “others similarly situated” file lawsuits for “any improper purpose.”

       The test for abuse of discretion is whether the trial court acted without reference to any

guiding rules and principles, or equivalently, whether under all the circumstances of the particular

case the trial court’s action was arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc.,

701 S.W.2d 238, 241-42 (Tex. 1985). Although I do not disagree with the majority’s conclusion

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that Unifund should be sanctioned in the amount of $2,871 for Villa’s out-of-pocket attorney’s fees

and expenses, I cannot, on this record and under all the circumstances of this case, agree with the

majority’s conclusion that the trial court did not err in assessing an $18,685 sanction for Villa’s

“inconvenience and harassment.” Therefore, I respectfully dissent.



                                                      Sandee Bryan Marion, Justice




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