Reversed and Rendered and Opinion Filed August 9, 2013




                                                          S
                                                        In The
                                                  Court of Appeals
                                           Fifth District of Texas at Dallas

                                                      No. 05-12-00020-CV

                                    ROBERT C. WIEGAND, Appellant
                                                 V.
                                SKY KING FOUNDATION INCORPORATED,
                                  FLYING CROWN FOUNDATION, AND
                                       STEPHEN BIRCH, Appellees

                               On Appeal from the 193rd Judicial District Court
                                            Dallas County, Texas
                                      Trial Court Cause No. 10-04103

                                             MEMORANDUM OPINION
                                          Before Justices FitzGerald and Lewis1
                                             Opinion by Justice FitzGerald

          In the course of civil litigation, the trial judge sanctioned one of the plaintiffs’ attorneys,

appellant Robert C. Wiegand, for violating a protective order. Wiegand appealed after the judge

signed a final judgment in the case. We reverse.

                                                       I. BACKGROUND

          Plaintiffs RSS Rail Signal Systems Corporation and John Cummings sued appellees on

several theories of liability including fraud and breach of contract. Appellant was one of

plaintiffs’ attorneys.


     1
       The Honorable Mary L. Murphy was on the panel and participated at the submission of this case. Due to her resignation from the Court
on June 7, 2013, she did not participate in the issuance of this opinion. See TEX. R. APP. P. 41.1(a), (b).
       Plaintiffs sought discovery about appellees via subpoenas duces tecum directed to two

nonparties, Regions Bank and Regions Equipment Finance Company (REFCO). Regions Bank

and REFCO filed a joint motion for protective order. Appellees also filed motions for protective

order relating to the subpoenas. After a hearing, the trial judge signed a protective order that

provided in pertinent part as follows:

              1.       The Court DENIES in part, and GRANTS in part [appellees’
       motions for protective order]. The Court will allow the discovery to Regions
       bank and Regions Equipment Finance Corporation to proceed so long as the
       produced documents or the information contained therein are not provided to or
       disclosed to third parties.

               2.     Pursuant to an agreement by and amongst Plaintiffs, Regions
       Bank, and REFC, the June 18, 2010 Deposition on Written Questions of REFC
       shall be rescheduled to occur at 11:00 a.m. on July 6, 2010, pursuant to the same
       notice and subpoena already issued and served . . . .

               ...

               5.     Unless given leave of Court, Plaintiffs and their attorneys shall not
       disclose or reveal the documents produced by Regions Bank and REFC or the
       information contained therein to anyone other than 1) the parties and their
       attorneys, 2) attorneys, paralegals and staff of Godwin Ronquillo PC, and 3)
       testifying or consulting experts retained for purposes of this lawsuit. It is the
       obligation of Plaintiffs and their attorneys to ensure that those to whom such
       information is disclosed comply with this order and maintain the confidential
       nature of such documents and information.

The judge signed this order on June 22, 2010.

       On August 25, 2010, plaintiffs filed two business-records affidavits executed by a vice

president of Regions Bank. One affidavit proved up over 800 attached pages of records from

Regions Bank, and the other proved up over 500 attached pages of records from REFCO. On

February 7, 2011, appellees filed a motion to seal those records and for sanctions, among other

things. The trial judge heard the motion for sanctions, and he orally expressed his intention to

grant the motion for sanctions and to exclude the filed documents from evidence. Two days

later, plaintiffs filed a motion to reconsider and asked for an expedited hearing. The trial judge

held a hearing on the motion to reconsider, and Wiegand testified at that hearing and presented
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other evidence. The judge later signed an order in which he accepted Wiegand’s testimony that

the decision to file the documents had been his and not his clients’, vacated his oral ruling that

the documents would be excluded from evidence, and instead ordered Wiegand to pay appellee

Birch a monetary sanction of $2,000.

          Wiegand then filed a motion to vacate or alternatively modify the sanctions order. The

judge then signed a nunc pro tunc sanctions order that was in substance the same as the prior

order. Several days later, the judge a second nunc pro tunc sanctions order, which again did not

change the substance of the previous orders.

          Eventually a jury trial was held on the merits of the case, and the trial judge signed a final

judgment in favor of plaintiffs. Wiegand timely appealed the sanctions order. Appellees have

not filed a brief on appeal, but appellee Birch appeared at oral argument and presented argument

pro se.

                                            II. ANALYSIS

          Wiegand raises one issue on appeal in which he contends that the sanctions order was an

abuse of discretion and should be vacated or reversed. He raises several different arguments in

support of that issue. We need discuss only one.

          We review a trial judge’s decision imposing sanctions for abuse of discretion. Rodriguez

v. MumboJumbo, L.L.C., 347 S.W.3d 924, 926 (Tex. App.—Dallas 2011, no pet.). “A trial court

abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any

guiding rules or principles.” Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003). For example,

a trial judge abuses his discretion if he bases a sanction on a “clearly erroneous assessment of the

evidence.” Rodriguez, 347 S.W.3d at 926.

          One of Wiegand’s arguments is that the trial judge abused his discretion because

appellees did not pray for any particular amount of sanctions in their motion and because


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appellees presented no evidence to justify the $2,000 amount settled on by the judge. We

conclude that this argument is meritorious.

       Any discovery sanction imposed under Texas Rule of Civil Procedure 215.2(b) must be

just. Paradigm Oil, Inc. v. Retamco Operating, Inc., 372 S.W.3d 177, 184 (Tex. 2012). Such

sanctions “are primarily intended to remedy discovery abuse and should be tailored to serve their

remedial purpose.” Id. at 187. “Although punishment may be a legitimate consequence of a

discovery sanction, it cannot be excessive.” Id. Most importantly for the instant case, the

Paradigm court endorsed the principle that “[s]anctions for discovery abuse should not be

dispensed as arbitrary monetary penalties unrelated to any harm.” Id. (citing Ford Motor Co. v.

Tyson, 943 S.W.2d 527, 534–35 (Tex. App.—Dallas 1997, orig. proceeding)); see also Braden v.

S. Main Bank, 837 S.W.2d 733, 741 (Tex. App.—Houston [14th Dist.] 1992, writ denied)

(“[W]hen a trial court assesses a monetary sanction, there must be some evidence in the record

linking the amount awarded to harm actually suffered by the party seeking sanctions.”); Daniel v.

Daniel, No. 14-94-00567-CV, 1995 WL 505975, at *4 (Tex. App.—Houston [14th Dist.] Aug.

24, 1995, no pet.) (not designated for publication) (reversing $1,500 fine levied as a sanction

because there was no evidence “linking the amount awarded to harm actually suffered by the

party seeking damages”).

       Our decision in Hanley v. Hanley, 813 S.W.2d 511 (Tex. App.—Dallas 1991, no writ), is

both consistent with the principles outlined in Paradigm Oil and factually similar to the instant

case. A trial judge struck some parties’ pleadings and additionally required two of those parties

to pay $25,000 each to their opponent as a sanction. Id. at 513, 521. We reversed the monetary

sanction because there was no evidence in the record connecting the $50,000 award to any harm

suffered by the appellee as a result of the discovery abuse or any expenses incurred by the

appellee in obtaining the sanction order. Id. at 521. That is, the record did not show that the

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$50,000 figure was anything but “an arbitrary amount” requested by an attorney at the hearing

and granted by the trial court. Id. Moreover, we noted that the appellee had not prayed for any

specific amount of sanctions in her sanctions motion. Id. All of these facts are present in the

instant case. Appellees did not pray for any specific amount of sanctions in their motion for

sanctions, or even propose a method or basis for calculating a monetary sanction. Appellees did

not introduce any evidence showing any harm or expense caused by the allegedly sanctionable

conduct. Appellees were not represented by counsel when they filed their motion for sanctions,

so they did not incur any attorneys’ fees in prosecuting the motion.2 Thus, we conclude that the

$2,000 sanction in this case was arbitrary and unsupported by any evidence of actual harm or

expense to appellees. The trial judge abused his discretion by ordering this sanction.

                                                          III. DISPOSITION

           We reverse the trial court’s Second Amended Nunc Pro Tunc Order on Defendants’

Motion for Sanctions and render judgment denying appellees’ motion for sanctions.




                                                                           /Kerry P. FitzGerald/
120020F.P05                                                                KERRY P. FITZGERALD
                                                                           JUSTICE




     2
       The trial judge recognized on the record that only appellee Birch could properly proceed with the motion on a pro se basis and accordingly
ordered the $2,000 sanction to be paid to appellee Birch alone.



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                                      S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                     JUDGMENT

Robert C. Wiegand, Appellant                      On Appeal from the 193rd Judicial District
                                                  Court, Dallas County, Texas
No. 05-12-00020-CV        V.                      Trial Court Cause No. 10-04103.
                                                  Opinion delivered by Justice FitzGerald.
Sky King Foundation Incorporated, Flying          Justice Lewis participating.
Crown Foundation, and Stephen Birch,
Appellees

       In accordance with the Court’s opinion of this date, we REVERSE the Second Amended
Nunc Pro Tunc Order on Defendants’ Motion for Sanctions and RENDER judgment denying the
motion for sanctions by appellees Sky King Foundation Incorporated, Flying Crown Foundation,
and Stephen Birch.

       It is ORDERED that appellant Robert C. Wiegand recover his costs of this appeal from
appellee Stephen Birch.


Judgment entered August 9, 2013




                                                  /Kerry P. FitzGerald/
                                                  KERRY P. FITZGERALD
                                                  JUSTICE




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