                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


    S. GARY WERLEY,                              §
                                                                 No. 08-09-00204-CV
                   Appellant,                    §
                                                                    Appeal from the
    v.                                           §
                                                              101st Judicial District Court
                                                 §
    BRANDY CANNON AND MATTHEW                                   of Dallas County, Texas
    R. CANNON,                                   §
                                                                    (TC# 09-04045)
                   Appellees.                    §


                                           OPINION

         Attorney S. Gary Werley appeals a judgment awarding Brandy and Matthew Cannon

attorneys’ fees and costs as a sanction for violating a protective order. On appeal, Mr. Werley

argues the trial court abused its discretion in entering the protective order and in sanctioning him.

He also argues the court erred in entering the final judgment because it was based on the

sanctions order. Finally, Mr. Werley contests the trial court’s award of appellate attorneys’ fees

in the final judgment. We affirm.1

         The Cannons and Andrew Smith, a minor child, sued Dr. Scott Ashton, Ashton Podiatry

Associates, and ISR Partners for medical malpractice. Their complaint alleged that Ms. Cannon

underwent a bunionectomy, based on Dr. Ashton’s recommendations, to resection and reshape

the head of the first metatarsal bone in her left foot to alleviate pain and restore normal walking.



1
 Because this is a transfer case, we must apply precedent of the Fifth Court of Appeals if our
decision would otherwise be inconsistent with the transferor court’s precedent. See
TEX .R.APP .P. 41.3.
After Dr. Ashton performed this surgery and discharged Ms. Cannon, she experienced

excruciating pain, so she returned to see him. From additional X-rays of her foot, Ms. Cannon

noticed the bone in her great toe was about one-half inch shorter than it was before the surgery.

Dr. Ashton told her that this and her sensations of pain were normal. At her next appointment,

Dr. Ashton told Ms. Cannon that she had a bunion on her right foot and recommended that she

have surgery for it before her health insurance incurred a new deductible. Ms. Cannon later

underwent a similar surgical procedure on her right foot. When she returned to Dr. Ashton’s

office to have her right foot X-rayed, she noticed the bone in her right foot was shortened and

expressed concern. Dr. Ashton assured her once again that all was well. Over the next few

months, Ms. Cannon continued to visit Dr. Ashton’s office, and Dr. Ashton continued to reassure

her that “everything was going well,” and prescribed a tranquilizer for her. According to the

complaint, Ms. Cannon has not been pain-free or able to walk normally since she had the first

surgery.

       The plaintiffs filed a motion for a protective order to guard Ms. Cannon’s privacy rights

and to prohibit the defendants from engaging in ex parte communications with her non-party

treating physicians. The plaintiffs claimed that after her visits with Dr. Ashton, Ms. Cannon

sought care from other doctors, including Dr. Steven Berkey, who made a note in her medical

chart that his X-rays showed “severe over-aggressive bone removal during the bunion surgery.”

However, a month after this suit was filed, Dr. Berkey made another note in Ms. Cannon’s chart

indicating that he had spoken with Dr. Ashton, and that, “[b]ased on this new information, in [Dr.

Berkey’s] opinion, the stress fracture(s) that Brandy Cannon experienced were due to the short

first metatarsal (which was present prior to the bunionectomy) and not to the narrowed first


                                                -2-
metatarsal head as noted on the x-rays [he] took in [his] office.” The plaintiffs argued that these

facts made it “quite clear that Dr. Berkey was contacted by Defendant Ashton.” After a hearing,

the trial court granted the motion and prohibited the defendants “from any ex parte contacts with

non-party treating physicians of Brandy Cannon.”

       The plaintiffs later filed consolidated motions for sanctions, which alleged, among other

things, that Mr. Werley had engaged in ex parte contacts and other attempts to subvert the

testimonies of Ms. Cannon’s past and current doctors, including Dr. Singleton, Dr. Crates,

Dr. Cook, and Dr. Berkey. After a hearing, the court ordered Mr. Werley to pay $12,660 in

attorneys’ fees and $500 in costs to the plaintiffs. The court also prohibited the defendants from

designating Ms. Cannon’s treating physicians as expert witnesses and ordered that portions of

Dr. Cook’s deposition be stricken.

       Thereafter, the plaintiffs and the defendants settled the underlying lawsuit for policy

limits. The Cannons moved to sever the sanction awarded against Mr. Werley from the rest of

the suit and to assign it a new cause number on the basis that the parties had settled the

underlying cause of action. They also moved to dismiss the underlying suit, Cause No. 07-

10336, with prejudice. On April 3, 2009, the trial court granted the motion to sever the sanction

against Mr. Werley in the amount of $12,660 and assigned the severed action a new cause

number. On the same day, the trial court granted the Cannons’ motion to dismiss each claim

against Dr. Ashton and Ashton Podiatry Associates with prejudice. This order stated in part:

“This dismissal does not pertain to and has no effect on the $12,660.00 in sanctions ordered by

the Court against Gary Werley, severed from this action by a separate order on this date.” The

Cannons later filed a motion for entry of judgment, which the trial court granted on May 19,


                                                 -3-
2009. In the final judgment, the court awarded the Cannons $12,660 from Mr. Werley, as well as

appellate attorneys’ fees in the event that Mr. Werley made unsuccessful appeals to the court of

appeals and to the Texas Supreme Court.

       In Issue One, Mr. Werley argues the trial court abused its discretion in entering the

protective order prohibiting the defendants from having any ex parte communications with all of

Ms. Cannon’s non-party treating physicians and in entering the sanctions order and the final

judgment.

       We first address Mr. Werley’s argument regarding the protective order. We agree with

the Cannons’ argument that the trial court’s plenary power expired thirty days after it signed the

agreed order granting the Cannons’ motion to dismiss Cause No. 07-10336 with prejudice. A

trial court retains plenary power to grant a new trial or to vacate, modify, correct, or reform a

judgment within thirty days after the judgment is signed. TEX .R.CIV .P. 329b(d); First Alief Bank

v. White, 682 S.W.2d 251, 252 (Tex. 1984)(orig. proceeding)(per curiam). If no party to a

judgment files a motion to extend the trial court’s plenary power, the trial court loses plenary

power over the judgment thirty days after the judgment is signed. Pollard v. Pollard, 316

S.W.3d 246, 251 (Tex.App.--Dallas 2010, no pet.). After the expiration of those thirty days, the

trial court has no authority to set aside a judgment except by bill of review for sufficient cause.

TEX .R.CIV .P. 329b(f); Thursby v. Stovall, 647 S.W.2d 953, 954 (Tex. 1983)(orig. proceeding)

(per curiam).

       The protective order was issued in trial court Cause No. 07-10336. This appeal is limited

to those matters that were severed to trial court Cause No. 09-04045 by the order of severance.

Because there was no timely challenge to the dismissal of Cause No. 07-10336, whether by a


                                                 -4-
motion to reinstate the case, a motion for new trial, any motion that would have extended the trial

court’s plenary power, an appeal, or a bill of review, we cannot address Mr. Werley’s issue

related to the protective order in this appeal. See TEX .R.CIV .P. 165a & 329b; TEX .R.APP .P. 26.1.

When the trial court’s plenary power expired, the order of dismissal with prejudice became final.

See Pollard, 316 S.W.3d at 251. Therefore, we overrule Issue One to the extent that the trial

court erred in entering the protective order.

       We now turn to Mr. Werley’s argument that the court erred in granting the $12,660

sanction against him. We review a trial court’s ruling on a motion for sanctions under an abuse

of discretion standard. See Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004). A trial court

abuses its discretion when its ruling is arbitrary and unreasonable and without reference to any

guiding rules and principles. Id. at 838-39. In conducting our review, we are not limited to

considering the “sufficiency of the evidence” to support the trial court’s findings; rather, we

make an independent inquiry of the entire record to determine if the court abused its discretion by

imposing the sanction. See Daniel v. Kelley Oil Corp., 981 S.W.2d 230, 234 (Tex.App.--

Houston [1st Dist.] 1998, pet. denied)(op. on reh’g).

       Mr. Werley challenges the sanctions order, as well as the final judgment, by arguing that

the trial court only found for the Cannons on one out of the five allegations in their sanctions

motions, that the evidence showed he never contacted a “non-party treating physician” as

stipulated in the protective order, and that the Cannons’ attorneys produced insufficient evidence

of attorneys’ fees and costs. Mr. Werley also argues the sanction was unjust because “[t]he

Plaintiffs showed no prejudice or harm, the Court did not consider any prejudice, the Court did

not consider less stringent sanctions, and the Court did not require the Plaintiffs to segregate the


                                                 -5-
attorneys’ fees between the portions of the voluminous Motion for Sanctions on which no

sanctions were awarded and that one portion on which they were granted.”

       Discovery sanctions are authorized by Texas Rule of Civil Procedure 215. If a trial court

finds that a party is abusing the discovery process in seeking, making, or resisting discovery, then

the trial court may, after notice and hearing, impose any appropriate sanction authorized by Rule

215.2(b)(1)-(5) and (8). TEX .R.CIV .P. 215.3. Rule 215.2(b)(2) permits a trial court to order a

disobedient party or the attorney advising him to pay all or any portion of the expenses of

discovery, taxable court costs, or both. Section 215.2(b)(8) permits a trial court to require a party

failing to obey an order or the attorney advising him, or both, to pay the reasonable expenses,

including attorneys’ fees, caused by the failure to obey the order.

       Sanctions are used to assure compliance with discovery and deter those who might be

tempted to abuse discovery in the absence of a deterrent. Cire, 134 S.W.3d at 839. However, a

trial court may not impose a sanction that is more severe than necessary to satisfy its legitimate

purpose. Id.; see TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex.

1991). Rule of Civil Procedure 215.2 authorizes a trial court to enter “just” sanctions against the

party or the attorney advising the party when the party fails to comply with a discovery order.

Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 584 (Tex. 2006).

       In determining whether the trial court abused its discretion, we must ensure that the

sanctions were appropriate or just. Am. Flood Research, 192 S.W.3d at 583. To determine if the

sanctions were appropriate or just, we undertake a two-part inquiry. Am. Flood Research, 192

S.W.3d at 583. First, there must be a direct nexus between the offensive conduct and the

sanction imposed. Id. We should “examine whether punishment was imposed upon the true


                                                 -6-
offender and tailored to remedy any prejudice” caused by the conduct. Id. Second, we must

make certain that less severe sanctions would not have been sufficient to promote compliance.

Id. That is, a sanction imposed for discovery abuse should be no more severe than necessary to

satisfy its legitimate purposes, which includes securing compliance with discovery rules,

deterring other litigants from similar misconduct, and punishing violators. TransAmerican, 811

S.W.2d at 917; see Spohn Hosp. v. Mayer, 104 S.W.3d 878, 882 (Tex. 2003); Chrysler Corp. v.

Blackmon, 841 S.W.2d 844, 849 (Tex. 1992). The Texas Supreme Court requires courts to

consider whether less stringent sanctions would fully promote compliance. TransAmerican, 811

S.W.2d at 917; see Cire, 134 S.W.3d at 839; Spohn Hosp., 104 S.W.3d at 882. Furthermore,

absent any evidence as to the amount of the attorneys’ fees reasonably incurred as a result of the

sanctionable conduct, the order is unjust. See TEX .R.CIV .P. 215; In re Ford Motor Co., 988

S.W.2d 714, 718 (Tex. 1998); TransAmerican, 811 S.W.2d at 917; Darya, Inc. v. Christian, 251

S.W.3d 227, 232 (Tex.App--Dallas 2008, no pet.); Hanley v. Hanley, 813 S.W.2d 511, 522-23

(Tex.App.--Dallas 1991, no writ).

       In May 2006, Dr. Berkey made the note below in Ms. Cannon’s medical chart:

       Xrays reveal aggressive bone resection 1st met. head and neck. It is difficult to
       tell what procedure was done due to the severe over-aggressive bone removal
       during the bunion surgery. Ultrasound done does not reveal an [sic]
       tendonopathies in the EDL tendon.

       Three months later, Dr. Berkey indicated the following in Ms. Cannon’s chart:

       Xrays reveal aggressive bone resection 1st met. head and neck left foot. The left
       foot xrays resembles the right foot xray.

       On October 8, 2007, Dr. Berkey added the following comment into Ms. Cannon’s chart:

       I spoke with Dr. Scott Ashton on 10/5/2007. We discussed Brandy Cannon. He


                                                -7-
        told me he had treated her prior to the surgery for a stress fracture due to short
        first metatarsal. A short first metatarsal causes an excess loading force on the
        lesser metatarsals and the mdifoot [sic] causing stress fractures. Dr. Ashton said
        the [sic] I did not see the pre-op xrays which showed the short first metatarsal.
        Based on this new information, in my opinion, the stress fracture(s) that Brandy
        Cannon experienced were due to the short first metatarsal (which was present
        prior to the bunionectomy) and not to the narrowed first metatarsal head as noted
        on the x-rays I took in my office.

        The Cannons submitted the foregoing evidence to the trial court in their motion for the

protective order. Based on this evidence, the Cannons argued that Dr. Ashton must have

communicated with Dr. Berkey prior to Dr. Berkey’s October 8, 2007 note, particularly in light

of the fact that the note was made “approximately one month after suit [against Dr. Ashton] was

filed.” [Emphasis in orig.].

        The record shows that after the protective order was entered, Mr. Werley indeed

contacted Dr. Singleton, Ms. Cannon’s then current doctor, as well as Dr. Cook, Dr. Crates, and

Dr. Berkey, all doctors who had treated Ms. Cannon previously. Mr. Werley sent each of these

individuals a letter on September 11, 2008, along with a packet of information containing

medical records, affidavits from witnesses, pleadings, and other correspondence. The September

11 letter states in part:

                 I have requested depositions for each of you. The Court has entered an
        order that I cannot contact you without the presence of Plaintiffs’ counsel. As a
        result, I cannot visit with you, and ask beforehand, what you are willing to do or
        what your testimony will be to certain questions.

                So, stepping out in faith, I am sending you this package. It contains
        Dr. Ashton’s medical records, some x-rays, and the expert report of his alleged
        negligence. I request that you read same and be able to respond to the allegations
        of negligence. I will bring the original x-rays to the deposition.

        At the sanctions hearing, Mr. Werley testified he had instructed his secretary to send a



                                                -8-
copy of this letter and packet to the plaintiffs, but the Cannons’ attorneys testified they never

received the information and they did not know about its existence until they deposed

Ms. Cannon’s previous doctors. The Cannons’ attorneys also testified that every other

correspondence from Mr. Werley’s office that had been sent to the doctors involved in this case

had been “cc’d” to them, but only Dr. Ashton was “cc’d” in the September 11 letter and its

attachments. At the end of the sanctions hearing, the trial court determined the September 11

letter and its attached packet were “completely out of bounds,” and the court did not believe

Mr. Werley’s representations that he had served these documents on the Cannons. The court

further stated that it was “seriously bothered by [the defense’s] flagrant . . . disobedience” of its

order. In the order regarding the Cannons’ motions for sanctions, the court made the following

findings:

              The Court FINDS that there is a direct relationship between the sanction
       and the offensive conduct of Defendants.

              The Court FURTHER FINDS that adequate evidence was heard at the
       Hearing demonstrating that the attorneys’ fees and costs’ award was reasonable.

               The Court FURTHER FINDS that this sanction is no more severe than
       necessary to promote full compliance of the earlier ORDER of this court
       concerning Ex Parte communications by Defendants and Defendants’ agents with
       Plaintiff Brandy Cannon’s treating physicians.

              The Court FURTHER FINDS that there is good cause to support the
       imposition of sanctions because evidence was presented to the Court that
       Defendants’ counsel sent inappropriate Ex Parte communications to Plaintiff
       Brandy Cannon’s treating physicians: Dr. Steven Berkey, Dr. Charles Ed
       Singleton, Dr. Charles Cook and Dr. John Crates.

       We reject Mr. Werley’s suggestion that the sanction was inappropriate because the trial

court only found for the Cannons on one of the allegations in their sanctions motions. Rule 215



                                                  -9-
authorizes the trial court to impose sanctions for abusing a discovery order. In this case, the trial

court found for the Cannons on their motions for sanctions based on the defense’s violation of

the protective order. Thus, it had the authority to impose sanctions under Rule 215. Mr. Werley

also does not succeed in arguing that none of the doctors he contacted were “non-party treating

physicians,” as stipulated by the protective order. The record shows that the parties had a clear

understanding at the protective order hearing that “it was obviously going to be necessary to

contact some of [Ms. Cannon’s] doctors to request conferences or depositions, to obtain their

records; and that . . . as long as copies of those communications were provided to opposing

counsel, that that was not going to be a violation of the order.” Because of this explicit

understanding at the protective order hearing, we conclude that Mr. Werley’s argument based on

semantical distinctions between a “past” and “current” doctor fail.2

       Based on our review of the record, we conclude that the monetary sanction imposed by

the trial court against Mr. Werley has a direct relationship to his improper conduct. Accordingly,

the first part of the determination regarding whether the sanction against Mr. Werley was just is

satisfied. See Am. Flood Research, 192 S.W.3d at 583.

       Next, we examine whether the $12,660 monetary sanction against Mr. Werley was

excessive. The evidence showed that Mr. Werley sent the September 11 letter and the attached

packet to four doctors who had treated or were currently treating Ms. Cannon without sending the

same to the Cannons or their attorneys. This clearly violated the protective order. Before


2
 On appeal, Mr. Werley also complains that Doctors Singleton and Berkey were “podiatrists”
and not “physicians” as defined in the Texas Occupations Code, and thus his September 11
communications with them were not subject to the protective order. However, Mr. Werley did
not raise these objections with the trial court, and thus failed to preserve error for appellate
review. See TEX .R.APP .P. 33.1(a).

                                                -10-
arriving at the $12,660 sanction amount, the trial court heard Ms. McLarty, counsel for the

Cannons, testify at the sanctions hearing that her co-counsel spent 25 hours and she spent 7 hours

in the sanctions matter at a rate of $350 per hour, and that her legal assistant spent 14 hours at a

rate of $75 per hour. Adding $500 in other costs, such as copies of exhibits and DVDs, the total

cost came to $12,660. At the end of the sanctions hearing, the court awarded the entire $12,660

amount as a sanction against Mr. Werley based on Ms. McLarty’s testimony. After the hearing,

but before the trial court signed and entered the order reflecting its ruling, the defendants filed

their response to the plaintiffs’ supplement to their consolidated motions for sanctions, in which

the defendants requested that the trial court reduce the sanction to $4,220. Nevertheless, the trial

court granted the entire $12,660 monetary sanction.

       On appeal, Mr. Werley contends the trial court did not consider “less stringent sanctions,”

that it did not require the plaintiffs to segregate the attorneys’ fees awarded as a sanction against

him, and that no evidence or affidavits were submitted regarding the attorneys’ fees. Because

Mr. Werley did not raise these objections with the trial court at the sanctions hearing, we

conclude he failed to preserve error for appellate review. See TEX .R.APP .P. 33.1(a). However,

in the defendants’ response to to the plaintiffs’ supplement to their consolidated motions for

sanctions, Mr. Werley did argue that the sanction against him should be reduced to $4,220 on the

basis that the court “threw out two out of the three parts of [the plaintiffs’ motions for

sanctions].” Even if Mr. Werley timely preserved error with respect to his objection that the

court failed to consider less severe sanctions by making the foregoing argument in the response,

we determine his argument for a $4,220 sanction was conclusory and lacked any support. In light

of the evidence, the $12,660 sanction was not excessive in this case, but reasonable considering


                                                 -11-
the fact that Mr. Werley’s misconduct forced the Cannons’ attorneys to prepare and file motions

for sanctions and to attend a hearing for sanctions.3 See, e.g., Stromberger v. Turley Law Firm,

315 S.W.3d 921, 924 (Tex.App.--Dallas 2010, no pet.)(upholding sanctions of $5,300 on a

judgment debtor for his failure to appear for his scheduled deposition or produce any documents

pursuant to a subpoena duces tecum, based on 26.5 hours the creditor’s attorney spent on

preparing the sanctions motion with a voluminous file). We conclude that the sanction against

Mr. Werley was just, and the trial court did not abuse its discretion in awarding it or in entering

the sanctions order.

       Mr. Werley also attempts to argue that the trial court erred in entering the final judgment

because it was based on the sanctions order. Having determined the trial court did not err in

entering the sanctions order, we conclude the court did not err in entering the final judgment to

the extent of the sanction awarded. Accordingly, we overrule Issue One.

       In Issue Two, Mr. Werley argues the trial court abused its discretion in awarding

appellate attorneys’ fees in the final judgment. He argues that because the underlying protective

order was in itself an abuse of discretion, any appellate fees awarded pursuant to it was unjust.

He contends the awarded fees were in the same amount as stated in Mr. Kirk Pittard’s affidavit,

which was not introduced into evidence, and which constituted hearsay and was conclusory.

Mr. Werley also cites case law holding that “appellate fees must fail as the award must be

conditioned upon a specified party being unsuccessful in the appeal.” The trial court in the final

judgment awarded $15,000 in appellate attorneys’ fees “in the event [Mr. Werley’s] case is



3
  The $12,660 sanction amount did not take into account the time the plaintiffs’ attorneys spent at
the sanctions hearing.

                                                -12-
appealed unsuccessfully to the Dallas Court of Appeals,” and in the amount of $7,500 “in the

event this case is appealed unsuccessfully to the Supreme Court of Texas.”

       We review the trial court’s award of appellate attorneys’ fees for an abuse of discretion.

See, e.g., Law Offices of Windle Turley, P.C. v. French, 164 S.W.3d 487, 493 (Tex.App.--Dallas

2005, no pet.). A trial court’s award of attorney’s fees may include appellate attorney’s fees, but

there must be evidence of the fees’ reasonableness pertaining to appellate work. State and

County Mut. Fire Ins. Co. ex rel. Southern United General Agency of Texas v. Walker, 228

S.W.3d 404, 410 (Tex.App.--Fort Worth 2007, no pet.). Moreover, the trial court may not grant

a party an unconditional award of appellate attorney’s fees because to do so could penalize a

party for taking a meritorious appeal. In re Ford Motor Co., 988 S.W.2d at 721; Texas Farmers

Ins. Co. v. Cameron, 24 S.W.3d 386, 401 (Tex.App.--Dallas 2000, pet. denied). Here, the trial

court’s final judgment properly made the awards of appellate attorneys’ fees conditional on

Mr. Werley’s unsuccessful appeals.

       Mr. Werley’s assertion that the plaintiffs did not introduce Mr. Pittard’s affidavit into

evidence fails beacause the record shows the affidavit was attached as an exhibit to the Cannons’

April 15, 2009 motion for entry of judgment. Mr. Werley’s complaint that Mr. Pittard’s affidavit

constituted hearsay is waived because he failed to obtain a ruling on this objection at trial. See

Methodist Hospitals of Dallas v. Amerigroup Texas, Inc., 231 S.W.3d 483, 492 (Tex.App.--

Dallas 2007, pet. denied)(when a party makes a hearsay objection but fails to obtain a ruling, his

right to challenge the evidence on appeal is waived). However, an objection that an affidavit is

conclusory is an objection to the affidavit’s substance, and may be raised for the first time on

appeal. Esty v. Beal Bank S.S.B., 298 S.W.3d 280, 301 (Tex.App.--Dallas 2009, no pet.). In


                                                -13-
Texas Commerce Bank, Nat. Ass’n v. New, the Texas Supreme Court held that affidavit

testimony in support of attorneys’ fees was not conclusory and was legally sufficient where the

attorney testified he was a duly licensed attorney, familiar with usual and customary attorneys’

fees in the area, and that based on his knowledge of the services rendered, the disputed fee was

reasonable. Texas Commerce Bank, Nat. Ass’n v. New, 3 S.W.3d 515, 517-518 (Tex. 1999).

Similarly here, in Mr. Pittard’s affidavit in support of the appellate attorneys’ fees, he testified he

was a currently licensed Texas attorney in good standing with the State Bar of Texas, and that he

was “familiar with the standards for calculating reasonable and necessary attorney’s fees in

Texas.” He provided testimony as to his co-counsel’s and his own hourly rates, which according

to his training and experience, were “reasonable for litigation work in Dallas County by attorneys

with these respective levels of experience and expertise.” Based on his experience, he also

testified as to the necessary time to prepare an appeal to the court of appeals and the Texas

Supreme Court. Mr. Pittard stated the disputed appellate fees were reasonable and necessary.

This affidavit was not conclusory. See New, 3 S.W.3d at 517-518.

        Finally, we concluded in Issue One that we cannot determine whether the trial court erred

in granting the protective order in Cause No. 07-10336 in this appeal. Therefore, we need not

address Mr. Werley’s complaint that the appellate fees awarded were unjust because they were

based on the trial court’s erroneous granting of the protective order. Accordingly, we conclude

the trial court did not abuse its discretion in its award of appellate attorneys’ fees in the final

judgment, and we overrule Issue Two.

        Having overruled Mr. Werley’s issues presented for review, we affirm the trial court’s

judgment.


                                                  -14-
June 8, 2011
                                              DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Rivera, JJ.




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