                                  NO. 07-05-0403-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                       PANEL C

                                     JULY 13, 2006

                         ______________________________


            YOLANDA NELSON AND JAMES L. JOHNSON, APPELLANTS

                                           V.

                           ALBERTSON’S, INC., APPELLEE


                       _________________________________

        FROM THE COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY;

               NO. 04-23919-1; HONORABLE R. BRENT KEIS, JUDGE

                        _______________________________

Before QUINN, C.J., and REAVIS and HANCOCK, JJ.


                               MEMORANDUM OPINION


      Appellants, Yolanda Nelson and her attorney, James L. Johnson, appeal an order

granting monetary sanctions in the amount of $1,202 for discovery abuse. By a joint brief,

presenting four issues, they contend the trial court abused its discretion because (1)

Johnson properly invoked the attorney work product privilege at Nelson’s deposition, (2)
counsel for Albertson’s, Inc. failed to adhere to Rule 199.5 of the Rules of Civil Procedure,

(3) the court failed to determine whether the alleged discovery abuse was attributable to

Nelson only, Johnson only, or both, and (4) the court’s amended final order of dismissal

was a nullity due to a lack of jurisdiction. However, Nelson and Johnson do not present

an issue challenging the dollar amount of the sanctions. We affirm.


       Johnson represented Nelson in a premises liability action against Albertson’s, Inc.

On June 3, 2005, counsel for Albertson’s, James W. Watson, arrived at Johnson’s office

to take Nelson’s deposition. Approximately thirty minutes into the deposition, the following

exchange took place:


              Q. What have you looked at or reviewed to prepare for your testimony
       this morning ?
              MR. JOHNSON: I object to the extent you’re asking for anything that
       I’ve asked her to review as being attorney product – attorney work product.
       You can answer as to anything you reviewed other than what I asked you to
       review.
              MR. WATSON: I disagree with that. I mean anything that she’s –
       anything that she’s reviewed. Now, I’m not asking for communications
       between you and her, and I’m not asking for something that you prepared for
       her, but just because you asked her to look at something doesn’t cloak it with
       any type of a privilege. I want to know everything that’s been reviewed.
              MR. JOHNSON: Texas Supreme Court would disagree. And I’m
       instructing you not to answer as to anything I’ve asked you to review.
              Q. (BY MR. WATSON) Go ahead. You can answer.
              A. (No response).


                                           * * *



                                             2
             MR. JOHNSON: And to that I repeat my prior objection as to
      revealing attorney work product as to anything that I asked you to review and
      also to the extent you did review, without my asking, any attorney
      correspondence, I’m instructing you not to reveal the content of any attorney
      correspondence.


Nelson subsequently refused to respond to Watson’s question with respect to the materials

she reviewed prior to her deposition. Nelson also refused to respond to the following

question regarding a request for production of documents:


      Q. And nothing other than Exhibit 2 and Exhibit 3 are being provided to me
      in response to these 19 categories of information that I’ve requested; is that
      also true?


       Following multiple attempts to obtain a response to his questions, Watson

suspended the deposition, and then filed the Motion to Compel Answers to Deposition

Questions and Motion for Sanctions. Asserting two grounds, Albertson’s sought (a) relief

regarding the attorney’s objection based on the work product privilege and (b) sanctions

because Nelson refused to answer or respond to questions unrelated to the work product

objection by her counsel. However, answers or responses were not filed by Nelson or

Johnson. Following the hearing and the receipt of evidence presented in support of the

motion, on July 25, 2005, the trial court signed its order granting the motion, which, among

other things, provided:


       It is further ordered, adjudged and decreed that Plaintiff Yolanda Nelson be
       compelled to fully respond to all question she refused to answer during her
       first day of deposition (taken June 3, 2005).


                                             3
       It is further ordered, adjudged and decreed that the conduct of plaintiff during
       the initial portion of her deposition (having taken place on June 3, 2005),
       shall be deemed admissible evidence pursuant to Rule 199.5(d), Tex. R. Civ.
       P., and
       It is further ordered, adjudged and decreed that Plaintiff and her attorney
       shall pay defendant sanctions in the amount of $1,202 (for attorney fees and
       court reporter fees) within five days of this hearing.


       On August 2, 2005, Johnson and Nelson filed a notice of nonsuit and the trial court

dismissed Nelson’s claims without prejudice. The trial court subsequently entered a

second order of dismissal on Watson’s motion, incorporating the award of sanctions.


                                    Standard of Review

                              Rule 215.1 Motion for Sanctions


       Because the scope of discovery is within the discretion of the trial court, we will

review the trial court’s decision regarding a sanction for discovery abuse under an abuse

of discretion standard. In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003); Dillard Dept.

Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995). A trial court abuses its discretion

when it acts without reference to guiding rules and principles. In re Colonial Pipeline Co.,

968 S.W.2d 938, 941 (Tex. 1998). A trial court has no discretion in determining what the

law is or applying the law to the facts, and a failure by a trial court to analyze or apply the

law correctly is, per se, an abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840

(Tex. 1992).




                                              4
      By their first issue, Nelson and Johnson contend the trial court abused its discretion

in issuing sanctions against them for ”discovery abuse” where they invoked the attorney

work product privilege at Nelson’s deposition by Albertson’s counsel. We disagree.


                                   Work Product Privilege

                                          Rule 192.5


      By their brief, Nelson and Johnson cite National Union Fire Ins. Co. v. Valdez, 863

S.W.2d 458 (Tex. 1993), and numerous federal cases as authority for their positions.

However, they do not cite or make reference to Rule 192.5 of the Texas Rules of Civil

Procedure, effective January 1, 1999.1 In his article entitled Has the Fog Cleared?

Attorney Work Product And The Attorney-Client Privilege: Texas’s Complete Transition Into

Full Protection Of Attorney Work In The Corporate Context, 32 St. Mary’s L.J. Number 197,

238 (2001), Fred A. Simpson describes the new Texas rule as a unique approach to work

product. According to Rule 192.5(a), work product includes:


      (1) material prepared or mental impressions developed in anticipation of
      litigation or for trial by or for a party or a party’s representatives, including the
      party’s attorneys, consultants, sureties, indemnitors, insurers, employees, or
      agents; or
      (2) a communication made in anticipation of litigation or for trial between a
      party and the party’s representatives or among a party’s representatives,
      including the party’s attorneys, consultants, sureties, indemnitors, insurers,
      employees, or agents.



      1
        We deem Tex. R. Civ. P. 192.5 controlling notwithstanding the Federal Rules of
Civil Procedure.

                                               5
Subparagraph (b)(3) then provides:


       Incidental Disclosure of Attorney Mental Processes. It is not a violation of
       subparagraph (1) if disclosure ordered pursuant to subparagraph (2)
       incidentally discloses by inference attorney mental processes otherwise
       protected under subparagraph (1).


       Under Texas law, a party may obtain discovery of any matter that is not privileged

and is relevant to the subject matter of the pending action. Tex. R. Civ. P. 192.3.2 When

a party tenders the documents to the trial court for an in camera inspection, the trial court

must decide whether the privilege applies. Oyster Creek Financial Corp. v. Richwood Inv.,

II, Inc., 957 S.W.2d 640, 646 (Tex.App.–Amarillo 1997, pet. denied); Marathon Oil Co. v.

Moye, 893 S.W.2d 585, 590 (Tex.App.–Dallas 1993, no writ.).             Moreover, because

documents are not privileged simply because they were created by an attorney or are

contained in an attorney’s file, the party attempting to limit discovery has the burden of

pleading and proving the basis of the desired limitation. See National Union, 863 S.W.2d

at 460; Weisel Enterprises, Inc. v. Curry, 718 S.W.2d 56, 58 (Tex. 1986); Kern v. Gleason,

840 S.W.2d 730, 735 (Tex.App.–Amarillo 1992, no writ). Further, where the question is

presented by an objection during deposition, the party seeking to avoid discovery must

present evidence necessary to support the objection or privilege, by testimony or affidavit.

See Tex. R. Civ. P. 199.6. As material here, the unsworn statements of attorney Johnson




       2
           Nelson and Johnson do not present a challenge of relevancy.

                                             6
at the hearing do not constitute evidence.3 See Banda v. Garcia, 955 S.W.2d 270, 272

(Tex. 1997).


       At the hearing on Albertson’s motion to compel and for sanctions, its counsel

introduced the relevant portions of Nelson’s deposition showing the objections and

instructions of Johnson not to answer questions based on the broad claim of work product

together with evidence of expenses and attorney’s fees occasioned by the hearing.

Although Nelson and Johnson had the burden of presenting evidence necessary to support

the objection or privilege, they presented no evidence in support of their position and did

not respond by pleading or proof that the objection was proper. Moreover, Nelson and

Johnson did not identify or otherwise describe the materials which Johnson requested that

Nelson review prior to her deposition or tender any materials to the trial court for in camera

review. In effect, they attempted to “cloak” the alleged materials, if any, with the work

product privilege merely by an objection, contrary to National Union. See National Union,

863 S.W.2d at 460. Concluding that Nelson and Johnson failed to show the judgment of

the trial court was erroneous, and no abuse of discretion had been demonstrated, Nelson

and Johnson’s first issue is overruled. See Murray v. Devco, Ltd., 731 S.W.2d 555, 557

(Tex. 1987).




       3
         After the hearing on June 24, 2005, Johnson sent his affidavit along with a brief to
the trial court, but it was not served seven days before the hearing as required by Tex. R.
Civ. P. 199.6.

                                              7
      By their second issue, Nelson and Johnson contend Watson failed to preserve his

objection because he did not object as required by Rule 199.5 of the Rules of Civil

Procedure. As a general rule, an issue may not be raised for the first time on appeal.

Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993). In order to preserve a complaint for

appellate review, a party must present to the trial court a timely request, objection, or

motion, state the specific grounds thereof, and obtain a ruling. See Tex. R. App. P.

33.1(a). However, this issue was not raised by response or answer to Albertson’s motion

for sanctions in the trial court and is not preserved for our review. See Preston v.

Burmeister, 52 S.W.3d 386, 389 (Tex.App.–Fort Worth 2001, no pet.); Cash America

Intern., Inc. v. Hampton Place, Inc., 955 S.W.2d 459, 463 (Tex.App.–Fort Worth 1997, pet.

denied). The second issue is overruled.


      By their third issue, Nelson and Johnson contend the trial court erred in failing to

determine whether the alleged discovery abuse was attributable to Nelson only, Johnson

only, or both. As discussed above, an issue may not be raised for the first time on appeal.

Dreyer, 871 S.W.2d at 698. A point or issue on appeal is not preserved for our review

unless the party asserting the contention presented a timely request, objection, or motion

that states the specific grounds for the desired ruling. Tex. R. App. P. 33.1(a); Cash

America, 955 S.W.2d at 463.


       After the sanctions order was signed on July 25, 2005, Nelson and Johnson did not

file a motion for rehearing or new trial or present the objection stated above to the trial


                                            8
court. Instead, they filed a notice of nonsuit per Tex. R. Civ. P. 162 on August 2, 2005.

Because they did not file a motion for rehearing or new trial or otherwise present this issue

to the trial court, the issue was not preserved for our review. See Cash America, 955

S.W.2d at 463. Their third issue is overruled.


       By their fourth issue, Nelson and Johnson contend the court’s amended final order

of dismissal incorporating the court’s award for sanctions was a nullity due to a lack of

jurisdiction. We disagree.


       On July 25, 2005, the trial court signed its order providing for monetary sanctions

against Nelson and Johnson. Following Nelson’s notice of nonsuit filed on August 2, 2005,

the trial court signed an order of dismissal without prejudice to Nelson’s claims on August

16, 2005. Then, on September 12, 2005, Nelson and Johnson filed their joint notice of

appeal indicating their desire to appeal the July 25, 2005 order. After the notice of appeal

was filed, acting on Albertson’s motion to modify, correct, or reform the August 16, 2005

dismissal without prejudice, on October 7, 2005, the trial court signed an order stating that

a sanctions order survives a nonsuit and providing that the case was dismissed without

prejudice.


       Because Rule 25.1(a) of the Texas Rules of Appellate Procedure provides that a

party may perfect an appeal by merely filing a notice of appeal, the filing of the notice of

appeal by Nelson and Johnson on August 16, 2005, was effective to invoke the jurisdiction

of this Court. See Tex. R. App. P. 25.1(a)&(b); In re Arroyo, 988 S.W.2d 737, 738 (Tex.

                                             9
1998). Moreover, the decision in Felderhoff v. Knauf, 819 S.W.2d 110, 111 (Tex. 1991),

holding that a monetary sanction order rendered before a nonsuit is taken survives a

nonsuit, renders any question of dismissal with or without prejudice irrelevant for purposes

of our review. Issue four is overruled.


       Accordingly, the order of the trial court granting Albertson’s motion for sanctions and

awarding monetary sanctions in the amount of $1,202 signed July 25, 2005, is affirmed.



                                                  Don H. Reavis
                                                    Justice




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