Opinion issued August 6, 2026
In The
Court of Appeals
For The
First District of Texas
NO. 01-24-00320-CV
JOHN TOMASZEWSKI AND HEATHER BRYAN, Appellants
V.
K. HOVNANIAN OF HOUSTON II, LLC D/B/A BRIGHTON HOMES,
Appellee
On Appeal from the 333rd District Court
Harris County, Texas
Trial Court Case No. 2020-12139A
MEMORANDUM OPINION
Appellants, John Tomaszewski and Heather Bryan, sued Appellee, K.
Hovnanian of Houston II, LLC, which does business as Brighton Homes, for
construction defects that allegedly caused a mold problem in their home. After the trial court imposed more than $50,000 in monetary sanctions against Appellants for
discovery abuse, they nonsuited their claims. They now appeal the sanctions.
Appellants ask us to reverse three sanctions orders and a related contempt
order; they argue that the court abused its discretion in sanctioning them on two
general grounds. First, they argue the evidence is insufficient to support the amount
of monetary sanctions awarded against them. Second, they argue the trial court erred
by imposing these sanctions without first testing less stringent ones or explaining
why less stringent ones were insufficient to address their discovery abuse. Because
we agree that the evidence is not sufficient to support the amount of monetary
sanctions imposed, we reverse and remand on that ground.
Beyond this, Appellants argue that the trial court abused its discretion by
refusing to defer payment of these monetary sanctions until the end of the litigation,
when they could be appealed in due course, and that its refusal to do so left them
with no choice but to nonsuit their claims due to the severity of the monetary
sanctions. Though they acknowledge the remedy they seek from us is
“unprecedented,” Appellants ask us to reinstate their nonsuited claims so their
lawsuit may proceed.
We reject Appellants’ request for reinstatement for two independent reasons.
They did not preserve this issue for our review. Nor do we as an appellate court
possess the authority to reinstate their claims on this record.
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On remand, we instruct the trial court to conduct a new hearing on the
monetary sanctions, redetermining their amount based on the evidence the parties
introduce.
BACKGROUND
Appellee’s Motion for Death-Penalty Sanctions
Appellee moved to impose death-penalty sanctions on Appellants for
discovery abuse. Appellee asked the trial court to strike Appellants’ pleadings,
disposing of their suit, and to impose $120,000 in monetary sanctions, apparently
representing the total amount of attorney’s fees incurred by Appellee thus far.
Sanctions Hearing
The trial court held a hearing on the motion. At the hearing, Appellee argued
that Appellants intentionally concealed and withheld documents that went to the
heart of the case—past mold problems in Appellants’ home. Appellee only learned
of these documents years into the litigation when they took the depositions of thirdparty contractors hired by Appellants to address the mold.
Appellants, in turn, argued that the documents in question were not relevant.
They also argued that these documents were not in their personal possession and,
alternatively, that they did not disclose them out of inadvertence.
The trial court did not credit Appellants’ explanations. It noted, for example,
that in her deposition Bryan had denied the existence of e-mails between her and the
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third-party contractors, rather than merely saying she did not possess any, even
though she had one such e-mail communication a month before her deposition.
Citing Appellants’ “lack of candor,” the trial court ruled that it was going to impose
sanctions—but not the death-penalty sanctions requested by Appellee. It
subsequently signed three separate orders to implement these lesser sanctions.
The First Sanctions Order
In its first order, the trial court ordered Appellants to pay within 30 days the
costs, expenses, and attorney’s fees that Appellee incurred in connection with the
depositions of the third-party contractors in the amount of $12,070.50. The trial court
also ordered Appellants to pay the costs, expenses, and attorney’s fees that Appellee
incurred in the preparation and hearing of its motion for sanctions in the amount of
$35,652. This second amount was due within 30 days of the entry of a subsequent
order by the trial court either confirming the amount or modifying it. Finally, the
trial court ordered Appellants to pay the costs, expenses, and attorney’s fees incurred
by Appellee in connection with any discovery that took place after the sanctions
hearing. It directed Appellee to submit proposed orders as to these amounts, which
would be due 30 days after the trial court signed an order.
The Second Sanctions Order
In its second order, the trial court modified the $35,652 amount stated in its
first order to $33,184. It ordered Appellants to pay this amount within 30 days.
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Appellants’ Emergency Motion to Defer Payment of Sanctions
In response to the trial court’s first and second sanctions orders, Appellants
moved to defer the payment of the sanctions until the entry of final judgment. Citing
the Texas Supreme Court’s decision in Braden v. Downey, Appellants argued that
the monetary sanctions were so severe they lacked the ability to pay them and
continue to pursue their claims. See 811 S.W.2d 922, 928–30 (Tex. 1991).
Appellants supported their motion with a declaration signed by Tomaszewski, in
which he stated that he and his wife lacked the assets to both pay the sanctions now
and continue paying their lawyers to prosecute this suit. (His wife, Bryan, did not
sign or submit a declaration in her name.)
Emergency Motion Hearing
The trial court held a hearing on Appellants’ emergency motion. Consistent
with their motion, Appellants asked the trial court to defer payment of the sanctions,
arguing that they otherwise would have to abandon their suit. They did not challenge
the sanctions on any other basis. Indeed, Appellants advised the trial court that their
motion had “nothing to do with the merits of the sanctions.”
Appellee contested Appellants’ inability to pay the sanctions, and Appellee
requested that the trial court order Appellants to produce financial records.
The trial court offered Appellants two alternatives. They could either (1) pay
the sanctions as ordered, with the exception that payment of the $33,184 would be
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deferred until the entry of a final judgment; or (2) agree to conduct an evidentiary
hearing on their ability to pay the sanctions. Appellants agreed to the second of these
alternatives, stating: “We would absolutely welcome the opportunity to hold an
evidentiary hearing as the Court requests on the inability for [Appellants] to pay,”
during “which we could have testimony.”
The trial court then ordered Appellants to produce financial records, such as
pay stubs and bank statements, for the preceding 90 days. The evidentiary hearing
was scheduled to take place about a week later, and the trial court stayed the payment
of the $12,070.50, which otherwise would have become due in the interim.
Appellants’ Motion for Reconsideration
A few days after the hearing on their emergency motion, Appellants moved
for reconsideration of the discovery and evidentiary hearing the trial court ordered.
Citing our court’s decision in Owens–Corning Fiberglas Corp. v. Caldwell, they
argued that the trial court lacked the authority to order discovery under the
circumstances. See 822 S.W.2d 143, 150 (Tex. App.—Houston [1st Dist.] 1991,
orig. proceeding). Instead, Appellants asserted, the trial court could only defer the
payment of the monetary sanctions or make written findings explaining why their
payment prior to the entry of a final judgment would not preclude the litigation.
Contemporaneously with the filing of this motion, Appellants filed a letter
with the trial court. The letter referred to their motion and also cited Caldwell.
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Appellants’ Petition for a Writ of Mandamus
Several days after filing their motion for reconsideration in the trial court,
Appellants filed a petition for a writ of mandamus. In it, they argued that the trial
court clearly abused its discretion and left them with no adequate remedy on appeal
by failing to defer payment of the monetary sanctions and instead ordering
discovery. As below, Appellants relied on Braden and Caldwell in support.
Appellants’ Nonsuit
Two days later, while their motion for reconsideration remained unheard and
their mandamus petition was undecided, Appellants nonsuited their claims. The trial
court later signed an order recognizing Appellants’ nonsuit of their claims.
Denial of Mandamus Relief
A week after Appellants nonsuited their claims, this court denied their petition
for a writ of mandamus (without stating its reason or reasons for doing so). See In re
Tomaszewski, No. 01-23-00920-CV, 2023 WL 8815149 (Tex. App.—Houston [1st
Dist.] Dec. 21, 2023, orig. proceeding).
Contempt Order
On a motion filed by Appellee and after a hearing on that motion, the trial
court signed an order holding Appellants in contempt for failing to pay the amounts
owed under the first and second sanctions orders. The trial court also ordered
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Appellants to pay costs, expenses, and attorney’s fees incurred by Appellee in
connection with its motion for contempt in the amount of $2,000.
The Third Sanctions Order
Consistent with the first sanctions order, Appellee moved to recover the
discovery-related costs, expenses, and fees it incurred during the period between the
sanctions hearing and Appellants’ nonsuit of their claims. After a hearing on the
motion, the trial court signed its third sanctions order, in which it ordered Appellants
to pay $2,044 in costs and expenses and $5,637 in attorney’s fees.
DISCUSSION
I. The evidence is insufficient to support the monetary sanctions.
Appellants challenge the sufficiency of the evidence to support the monetary
sanctions imposed by the trial court. In particular, they argue that no evidence in the
record supports the amount of costs, expenses, and attorney’s fees the trial court
awarded against them as monetary sanctions for discovery abuse.
A. Standard of review
We review a trial court’s sanctions order for an abuse of discretion. Brewer v.
Lennox Hearth Prods., LLC, 601 S.W.3d 704, 717 (Tex. 2020). The trial court
abuses its discretion if, among other things, its decision lacks factual support. Id.;
see also Nath v. Tex. Children’s Hosp., 446 S.W.3d 355, 361 (Tex. 2014) (trial court
8
generally does not abuse discretion as to sanctions if award is supported by sufficient
evidence).
B. Applicable law
A trial court may order a party to pay another’s costs, expenses, and attorney’s
fees as sanctions for discovery abuse. TEX. R. CIV. P. 215.2(b)(2), (8), 215.3.
When a trial court imposes attorney’s fees as a sanction, “there must be some
evidence of reasonableness because without such proof a trial court cannot
determine that the sanction is no more severe than necessary to fairly compensate
the prevailing party.” Nath v. Tex. Children’s Hosp., 576 S.W.3d 707, 709 (Tex.
2019) (internal quotation marks omitted). The party seeking fees as a sanction must
“put forth some affirmative evidence of attorney’s fees incurred and how those fees
resulted from or were caused by the sanctionable conduct.” Id. (internal quotation
marks omitted). In other words, fees awarded as sanctions are still fees and are
subject to the same general rules governing fee awards. See id. at 709–10.
Generally, a party seeking recovery of its attorney’s fees must establish the
reasonable hours spent by its counsel and the reasonable hourly rate for the work.
Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 501–02 (Tex.
2019). To do so, the party must, at a minimum, submit evidence of “(1) particular
services performed, (2) who performed those services, (3) approximately when the
services were performed, (4) the reasonable amount of time required to perform the
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services, and (5) the reasonable hourly rate for each person performing such
services.” Id. at 502. General or conclusory testimony cannot support a fee award.
Id. at 501.
The party need not submit its counsel’s billing records in order to recover its
attorney’s fees. Id. at 502. But in the absence of billing records or the like, the party
must introduce other evidence—such as attorney affidavits or testimony—that
provide the same information that the records otherwise would supply. See id.
Similarly, a party must introduce evidence of the reasonableness of costs and
expenses it seeks to recover as sanctions. See TEX. R. CIV. P. 215.2(b)(8) (limiting
recovery to “reasonable expenses”); CHRISTUS Health Gulf Coast v. Carswell, 505
S.W.3d 528, 539–40 (Tex. 2016) (Rule 215.2(b)(8) authorizes imposition of
“reasonable expenses” as sanction); see, e.g., Thottumkal v. McDougal, 251 S.W.3d
715, 718 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (affirming expenses,
including fees, as sanctions based on evidence).
C. Analysis
1. Appellants did not need to preserve error on this issue.
At the threshold, Appellee argues that Appellants have not preserved error as
to whether sufficient evidence supports the amount of costs, expenses, and attorney’s
fees. But, under applicable law, Appellants may raise their evidentiary sufficiency
complaint for the first time on appeal.
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The standard of review for sanctions is abuse of discretion. Brewer, 601
S.W.3d at 717; see also Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 852 (Tex.
1992) (abuse of discretion, not legal and factual sufficiency, is standard of review
applicable to sanctions). However, when attorney’s fees are imposed on a party as a
monetary sanction, evidence of the reasonableness of the fees is required. Nath, 576
S.W.3d at 709.
Our court has repeatedly held that when the trial court sits as factfinder as to
attorney’s fees, challenges to the sufficiency of the evidence supporting the award,
like any other evidentiary sufficiency issue arising from a matter tried to the bench,
can be raised for the first time on appeal. E.g., Vo v. Nguyen, No. 01-23-00559-CV,
2025 WL 1184229, at *2 n.2 (Tex. App.—Houston [1st Dist.] Apr. 24, 2025, no
pet.); Kroesche v. Wassar Logistics Holdings, LLC, No. 01-20-00047-CV, 2023 WL
1112002, at *18 (Tex. App.—Houston [1st Dist.] Jan. 31, 2023, pet. denied); see
also In re K.A.M.S., 583 S.W.3d 335, 349 (Tex. App.—Houston [14th Dist.] 2019,
no pet.) (same holding). In other words, no error preservation is required in this
particular context. See TEX. R. APP. P. 33.1(d).
The same reasoning applies to the amount of costs or expenses. Appellants
did not need to object below to present their challenge to the sufficiency of the
evidence supporting the amount of costs or expenses either. See id.
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2. The evidence of costs, expenses, and fees here is insufficient to
support the award.
In four separate orders, the trial court ordered Appellants to pay Appellee a
total of $54,665.50. This amount was comprised of the following:
● $12,070.50 in costs, expenses, and attorney’s fees—without stating
subtotals for each of these three categories—incurred by Appellee in
taking the depositions of three third-party contractors whom Appellants
hired to provide services related to the mold found in their home;
● $33,184 in costs, expenses, and attorney’s fees—without stating subtotals
for each of these three categories—incurred by Appellee for the
preparation of and hearing on its motion for death-penalty sanctions;
● $2,000 in costs, expenses, and attorney’s fees—without stating subtotals
for each of these three categories—incurred by Appellee in connection
with its motion to hold Appellants in contempt for failing to pay the
preceding monetary sanctions awarded when they became due; and
● $2,044 in costs and expenses and $5,367 in attorney’s fees for
supplemental discovery conducted after November 1, 2023.
The appellate record contains some evidence supporting some of these sums.
For instance, the billing records submitted to the trial court (for in camera review)
by Appellee in support of its request for $35,652 in costs, expenses, and fees
(reduced to $33,184 by the trial court) have been filed with this court under seal. In
addition, the record contains invoices for the $2,044 in costs and expenses from a
records service that Appellee’s counsel hired to assist with securing documents by
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subpoenas duces tecum. But the record contains no evidence supporting the other
three amounts of $12,070.50, $2,000, and $5,367.1
Moreover, even the billing records that we have are, on their face, some but
insufficient evidence of the amount stated. To support a fee request, a party must not
only submit evidence of the number of hours worked and the hourly rates of those
1
In a trial-court motion filed by the appellee, it represented that it was having “attorney
fee invoices” totaling $5,367 “for discovery conducted after November 1, 2023”
delivered to the trial court “for in camera review.” And in its third sanctions order,
which awarded that exact amount in fees, the trial court recited that it had reviewed
“contemporaneous time records” in camera. But unlike the billing records for the
$35,652 in costs, expenses, and fees, which have been filed with this court under seal
and therefore are in the record, the billing records for the $5,367 in attorney’s fees have
not been filed with our court under seal or otherwise.
Appellants do not assert the trial court erred in allowing Appellee to submit its
attorney’s billing records in camera; that issue is not before us. We nonetheless note
that doing so may short-circuit the usual procedure for presenting and adjudicating feeshifting requests, in which the side from whom the fees are sought can review the
evidence supporting the fees, cross-examine opposing counsel to the extent it is
appropriate, and contest the reasonableness and necessity of the fees. See Rohrmoos
Venture, 578 S.W.3d at 502–03 (stating that creation of billing records “makes them
available for production, provides a basis for testifying as to the reasonableness and
necessity of the requested fees, and permits cross-examination” and advising parties to
“use discovery and pretrial procedure to evaluate attorney’s fees claims and the
evidence supporting them”). To the extent an in camera review impairs these rights, it
could risk reversal. See Liberty Bankers Life Ins. Co. v. AIL Inv., L.P., No. 02-23-00212-CV, 2024 WL 2854776, at *15 (Tex. App.—Fort Worth June 6, 2024, pet.
denied) (concluding that trial court abused discretion by considering unredacted fee
statements submitted in camera in assessing attorney’s fees because other side was not
provided with the statements and therefore could not dispute them); see also CSFB
1998-PI Buffalo Speedway Office, Ltd. P’ship v. Amtech Elev. Servs. Co., No. 01-08-00639-CV, 2010 WL 3294287, at *7 (Tex. App.—Houston [1st Dist.] Aug. 19, 2010,
no pet.) (Massengale, J., concurring) (objecting to in camera submission of billing
records, noting, among other things, that party that did so had provided “no authority”
on appeal that authorized or condoned “process of supporting a fees request with
records that have been withheld from the opposing party”).
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performing the work, but also of the reasonableness of these figures. See Rohrmoos
Venture, 578 S.W.3d at 501–02 (mandating evidence of the reasonableness of the
amount of time spent performing the services and the rates of those who performed
them). This necessarily entails more than the recitation of the hours expended and
hourly rates; some justification of their reasonableness must also be proffered—for
example, that “x” number of hours is an appropriate number of hours to spend
drafting a summary-judgment motion in light of the complexity of the claims and
the stakes of the case, and that “y” rate is appropriate in light of the credentials and
experience of the person drafting the motion. No testimony as to reasonableness was
adduced in the trial court, and the billing records were not accompanied by an
affidavit or declaration addressing reasonableness.
In sum, we are presented with a record that contains some evidence supporting
the $54,665.50 in costs, expenses, and attorney’s fees awarded by the trial court but
not enough evidence to sustain the award. When, as here, there is some but
insufficient evidence, our Supreme Court has instructed that the award must be
reversed and remanded in order to allow the parties to relitigate the proper amount
of the award. See Carswell, 505 S.W.3d at 540–41 (reversal and remand is correct
relief when record contains some but insufficient evidence to support monetary
sanctions); see also Rohrmoos Venture, 578 S.W.3d at 506 (reversing and remanding
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“to the trial court for a redetermination of fees” because fee evidence was
insufficient).
II. The trial court did not refuse to consider less stringent sanctions.
To clarify the scope of our reversal, we briefly turn to Appellants’ separate
argument that we independently must reverse because the record does not show the
trial court tested less stringent sanctions and explained why less stringent sanctions
could not remedy their discovery abuse. We disagree with Appellants here: the
record shows no reversible error on this ground. The court actually imposed a lesser
sanction.
A. Applicable law
A sanction for discovery abuse ought to be no more severe than necessary to
serve its legitimate purposes, “which include securing compliance with discovery
rules, deterring other litigants from similar misconduct, and punishing violators.”
Spohn Hosp. v. Mayer, 104 S.W.3d 878, 882 (Tex. 2003). Thus, a trial court must
consider the availability of less stringent sanctions and whether they will suffice.
Schindler Elevator Corp. v. Ceasar, 670 S.W.3d 577, 589 (Tex. 2023). But a trial
court is neither required to test the sufficiency of lesser sanctions by imposing all
conceivable lesser sanctions nor to list all these less stringent possibilities in an order
imposing a discovery sanction and then explain why each one is insufficient under
the circumstances. Cire v. Cummings, 134 S.W.3d 835, 842 (Tex. 2004).
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B. Analysis
In its motion seeking sanctions, Appellee asked the trial court to do two things
in response to Appellants’ discovery abuse. First, Appellee sought the imposition of
a so-called death-penalty sanction; specially, Appellee requested that the trial court
strike Appellants’ pleadings, arguing that no lesser sanction would remedy the harm
caused by the abuse. Second, Appellee requested that it be awarded $120,000 in
attorney’s fees, which ostensibly represented the amount of reasonable and
necessary fees incurred to date defending against the suit.
The trial court, however, declined to impose either of these sanctions. Instead,
as explained above, the court ultimately ordered Appellants to pay $54,665.50 in
costs, expenses, and attorney’s fees to Appellee as a sanction for their discovery
abuse. In short, here, the trial court imposed a less stringent sanction than requested.
See Schindler, 670 S.W.3d at 588–89 (trial court’s imposition of $25,000 sanction
in lieu of $100,000 sanction requested by party was less stringent sanction); Cire,
134 S.W.3d at 840 (ordering discovery, taxing costs of discovery, and awarding
attorney’s fees are all examples of sanctions that are less stringent than death-penalty
sanction).
To the extent Appellants argue that the trial court had to consider some still
lesser sanction, we note that Texas law does not require a trial court to test every
conceivable lesser sanction before imposing a discovery sanction. Cire, 134 S.W.3d
16
at 842. Finally, for the reasons explained above, we remand here for a new trial on
the costs, expenses, and attorney’s fees awarded as a sanction. Appellants will thus
have an opportunity to litigate excessiveness as to these amounts on remand, as well.
See Schindler, 670 S.W.3d at 589 (sanctions must not be excessive or too severe).
III. Appellants are not entitled to reinstatement of their claims.
Appellants next argue that the trial court abused its discretion by not allowing
them to defer payment of the monetary sanctions imposed against them until the
entry of a final judgment and instead ordering discovery about their ability to pay
the sanctions. Given the severity of the monetary sanctions, Appellants argue, they
had no choice but to nonsuit their claims. As a remedy, they ask us to reinstate them.
A. Standard of review
Like a trial court’s order imposing sanctions, we likewise review its refusal to
defer their payment until the entry of a final judgment for an abuse of discretion. See
Galindo v. Prosperity Partners, Inc., 429 S.W.3d 690, 697 (Tex. App.—Eastland
2014, pet. denied) (reviewing for abuse of discretion when refusal to defer payment
of sanctions and associated dismissal of claims was raised on direct appeal).
B. Applicable law
Subject to good-faith pleading requirements, when a party contends that
monetary sanctions are so severe that they effectively preclude access to the court,
the trial court must either (1) make the sanctions payable no sooner than when it
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signs a final, appealable judgment; or (2) make written findings, after a prompt
hearing, as to why the sanctions do not prevent the party from pursuing the case. In
re Casey, 589 S.W.3d 850, 855 (Tex. 2019); see also Braden, 811 S.W.2d at 929
(adopting standard applied by supreme court in Casey). When a trial court fails to
follow this procedure, the sanctioned party is generally entitled to mandamus relief.
See Casey, 589 S.W.3d at 853–56 (conditionally granting writ and instructing trial
court to modify order to defer payment of $8,251.50 sanction); Braden, 811 S.W.2d
at 928–31 (granting same relief as to $10,000 sanction).
While a trial court’s failure to follow this procedure is generally raised in the
context of mandamus proceedings, relief may be available on direct appeal as well.
For example, if the trial court imposes a severe monetary sanction, requires
immediate payment, and dismisses a party’s claims for nonpayment, the sanctioned
party could potentially obtain reversal of the sanctions order and the dismissal on
appeal. See Galindo, 429 S.W.3d at 697–99 (holding trial court abused its discretion
by failing to follow procedure required by Braden and by dismissing case based on
nonpayment of monetary sanctions; reversing and rendering take-nothing judgment
as to monetary sanctions and otherwise remanding case for further proceedings).
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C. Analysis
1. Appellants did not preserve error on this issue.
Appellants moved to defer the payment of the monetary sanctions until the
entry of a final, appealable order, but they did not secure a ruling on their motion
from the trial court. A ruling or a refusal to rule is required to preserve error. See
TEX. R. APP. P. 33.1(a)(2) (requiring ruling or refusal to rule); In re Zenergy, Inc.,
968 S.W.2d 1, 11 (Tex. App.—Corpus Christi–Edinburg 1997, orig. proceeding)
(relators in mandamus proceeding had waived issue by failing to complain about or
obtain ruling “on their inability to pay the sanctions or that payment would preclude
their ability to continue with the litigation”).
It is undisputed that the trial court held a prompt hearing on Appellants’
motion to defer the payment of sanctions. But Appellants argue that by ordering
discovery on their ability to pay the sanctions, rather than immediately ruling on
their motion (before they moved to nonsuit nine days later), the trial court refused to
rule. They rely on Caldwell, in which our court held that a trial court abused its
discretion by compelling the production of discovery as to the sanctioned party’s
ability to pay. 822 S.W.2d at 150. There, our Court stated that while Braden
“requires a sanctioned party claiming preclusion of court access to produce evidence
and witnesses in support of its claim in order to prevail,” Braden “does not authorize
the judge to compel production of the evidence” on ability to pay the sanctions. Id.
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But on the record before us, we do not agree that the record shows that the
trial court refused to rule. At the hearing on Appellants’ motion, the trial court gave
Appellants two options: (1) pay the monetary sanctions as ordered, except that
payment of the $33,184 from the second sanctions order would be deferred until a
final judgment was signed; or (2) hold a second, evidentiary hearing on Appellants’
ability to pay the sanctions, which would entail additional discovery on that subject.
Rather than object that this amounted to a refusal to rule or a Caldwell problem (or
on any other basis), counsel for Appellants replied, “We would absolutely welcome
the opportunity to hold an evidentiary hearing as the Court requests on the inability
for my clients to pay which we could have testimony and suspend the requirement
for attorney’s fees in the interim.”
Days later, Appellants moved for reconsideration and a filed a letter with the
trial court objecting to the discovery at issue based on Caldwell. But the record does
not show that Appellants set their motion for reconsideration for hearing, set it for
submission on the papers, or otherwise brought the motion to the trial court’s
attention for a ruling, and a trial court is not required to consider a motion that is not
called to its attention. Metzger v. Sebek, 892 S.W.2d 20, 49 (Tex. App.—Houston
[1st Dist.] 1994, writ denied). Similarly, the record does not show that their letter
came to the trial court’s attention. Finally, the record also does not show that the trial
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court ruled on the motion for reconsideration or refused to rule on it. Instead, just six
days later, Appellants nonsuited their claims.
When, as here, the record shows no more than the mere filing of a motion and
letter in the papers of the case, but not that they were presented for a ruling, error is
not preserved. See TEX. R. APP. P. 33.1(a)(1), (2) (record must show party raised
complaint by timely motion and trial court ruled or refused to rule on motion); see
also Noel v. Oakbend Med. Ctr., No. 01-21-00206-CV, 2022 WL 3031347, at *7
(Tex. App.—Houston [1st Dist.] Aug. 2, 2022, pet. denied) (“Simply filing a motion
or even setting the motion for hearing is insufficient to preserve error if the record
does not also show the motion was brought to the trial court’s attention.”); Metzger,
892 S.W.2d at 49 (motion must be called to trial court’s attention).
2. In any event, we lack the authority to reinstate nonsuited claims.
Even if Appellants had preserved for our review the argument that the trial
court failed to comply with Braden and its progeny, we nonetheless lack the
authority to grant the relief that they request—reinstatement of their dismissed
claims—on the record before us.
The courts of appeals are primarily courts of review. City of Dallas v. Dixon,
365 S.W.2d 919, 923 (Tex. 1963), rev’d on other grounds sub nom. Donovan v. City
of Dallas, 377 U.S. 408 (1964); Chevriere v. Mitchell, No.01-18-00761-CV, 2019
WL 1996498, at *2 (Tex. App.—Houston [1st Dist.] May 7, 2019, no pet.). The
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types of judgments we may issue reflect this role. See TEX. R. APP. P. 43.2
(authorizing courts of appeals to affirm, modify and affirm, reverse, and vacate trial
court judgments or dismiss appeal). We can reverse when the trial court erred and
its error probably caused the rendition of an improper judgment (or probably
prevented the proper presentation of the appeal). See TEX. R. APP. P. 44.1(a).
Here, Appellants nonsuited their claims. When they did so, the trial court had
no choice but to grant their nonsuit and dismiss their claims, which it did. See TEX
R. CIV. P. 162; Tex. Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31, 37 (Tex. 2008)
(agreeing that trial court had no choice but to grant plaintiffs’ nonsuit and dismiss
their claims because plaintiffs had “an absolute right to nonsuit their own claims”).
Under these circumstances, Appellants’ request for reinstatement of their
claims is tantamount to asking us to reverse the trial court for doing the only thing it
could have done in response to Appellants’ unilateral nonsuit of their own claims.
The invited error doctrine precludes us from doing so. See In re G.X.H., 627 S.W.3d
288, 301 (Tex. 2021) (party cannot complain of ruling it specifically requested). For
this reason, parties who nonsuit their claims generally cannot challenge their nonsuit
or the trial court’s corresponding dismissal on appeal. Est. of Nunu, 542 S.W.3d 67,
81–82 (Tex. App.—Houston [14th Dist.] 2017, pet. denied); In re Energy Transfer
Fuel, L.P., 298 S.W.3d 361, 365 (Tex. App.—Tyler 2009, orig. proceeding).
22
Appellants try to avoid this outcome by arguing that their nonsuit was not
voluntary under the circumstances. They assert that they had no choice but to
discontinue the litigation and nonsuit their claims, given the severity of the monetary
sanctions imposed by the trial court. But the record does not support their assertion.
As noted, shortly after the trial court ordered discovery on Appellants’ ability
to pay the monetary sanctions imposed against them, Appellants moved for
reconsideration. Four days later, they filed a petition for a writ of mandamus in this
court requesting that a prior panel of this Court direct the trial court to defer payment
of sanctions until the rendition of a final judgment and vacate its order for additional
discovery on Appellants’ ability to pay. Yet just two days afterward—while their
motion for reconsideration remained unaddressed and their mandamus petition was
still pending—Appellants nonsuited their claims.
On this record, Appellants cannot claim that they had no choice but to nonsuit
their claims due to the severity of the monetary sanctions. When Appellants did so,
it remained unresolved whether they would have to pay these sanctions before the
trial court signed a final judgment. Appellants not only voluntarily dismissed their
claims, but they did so before they had exhausted their efforts—both in the trial court
and here—to secure deferral of the sanctions.
This case is therefore distinguishable from Galindo, in which the trial court
dismissed the plaintiffs’ claims due to the failure to pay severe monetary sanctions.
23
See Galindo, 429 S.W.3d at 697–99. Here, Appellants nonsuited their claims while
it remained possible that payment of the sanctions might be deferred. Hence, we
reject their argument that the trial court’s monetary sanctions (at the applicable time)
forced them to nonsuit their claims and made dismissal of their claims involuntary.
CONCLUSION
We reverse the sanctions orders signed by the trial court on November 6,
2023, November 21, 2023, and April 30, 2024, as well as the contempt order signed
by the trial court on March 28, 2024. We remand for further proceedings consistent
with our opinion. We instruct the trial court to redetermine the amount of costs,
expenses, and attorney’s fees assignable as sanctions for discovery abuse.
Jennifer Caughey
Justice
Panel consists of Justices Guerra, Caughey, and Dokupil.
24