In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
No. 02-25-00287-CV
ARLINGTON PAVILION, LLC DBA TEXAS LIVE!; TXL WESTERN
SALOON, LLC; PBR COWBOY BAR - TX LIVE; ARLINGTON LIVE, LLC;
ARLINGTON BALLPARK DISTRICT ENTERTAINMENT BLOCK, LLC;
INNER-PARISH SECURITY CORP.; HASAN PERRYMAN; STEED DUNNILL
REYNOLDS BAILEY STEPHENSON LLP; AND C. TIM REYNOLDS,
Appellants
V.
ABEL RODRIGUEZ AND CYNTHIA RODRIGUEZ, Appellees
On Appeal from the 96th District Court
Tarrant County, Texas
Trial Court No. 096-319133-20
Before Sudderth, C.J.; Birdwell and Womack, JJ.
Memorandum Opinion by Chief Justice Sudderth
MEMORANDUM OPINION
After a security guard at a multi-business entertainment center hit Appellee Abel
Rodriguez in the head with a glass bottle, Abel and his wife, Appellee Cynthia
Rodriguez, sued to recover for their injuries. But when they did so, they sued not only
the guard (Appellant Hasan Perryman) but also the guard’s employer (Appellant InnerParish Security Corp.) and a group of entities several steps removed—entities affiliated
with the entertainment center (Appellants Arlington Pavilion, LLC dba Texas Live!;
TXL Western Saloon, LLC dba PBR Cowboy Bar—TX Live; 1 Arlington Live, LLC;
Arlington Ballpark District Entertainment Block, LLC; and Arlington Ballpark District
Entertainment Block, Inc.; together, the Entities). According to the Rodriguezes, the
entertainment center had a duty to ensure that Inner-Parish acted reasonably in its
hiring and training of security guards.
But the source of this alleged duty was unclear, in part because the Rodriguezes
did not offer evidence to unravel the web of legally distinct Entities. Instead, both the
1
At times, TXL Western Saloon, LLC was listed in the record as an entity separate from PBR Cowboy Bar—TX Live and Arlington Pavilion, LLC was listed as an entity separate from the “party doing business as Texas Live!” But the Rodriguezes’ live petition identified TXL Western Saloon, LLC as the party doing business as PBR Cowboy Bar—TX Live and Arlington Pavilion, LLC as the party doing business as Texas Live! Given the lack of evidence distinguishing between the Entities, we number them in accordance with the Rodriguezes’ pleadings.
2
Rodriguezes and their witnesses used the entertainment center’s name—“Texas
Live!”—as a collective label for the Entities and their entertainment-center affiliates. 2
The jury found the Texas Live! bundle and Inner-Parish liable for negligence,
apportioning liability between them and awarding several million dollars in
compensatory damages. The jury then imposed more than $55 million in punitive
damages on the Texas Live! bundle, Inner-Parish, and even Perryman, despite his not
having been found liable for anything. Later, the trial court added to this sizeable
judgment by ordering Inner-Parish and its trial counsel (Appellants C. Tim Reynolds
and Steed Dunnill Reynolds Bailey Stephenson LLP; together, Sanctioned Counsel) to
pay $5 million in sanctions as punishment for an untimely discovery disclosure.
The Entities, Inner-Parish, Perryman, and Sanctioned Counsel all appeal, raising
numerous complaints—and understandably so, as the record is rife with error.
First and foremost, the Rodriguezes’ failure to distinguish between the Entities—
or between the Entities and their nonparty affiliates—means there was no evidence of
each individual Entity’s alleged duty, and thus no evidence of the Entities’ liability. This
error had the secondary effect of tainting the jury’s findings as to Inner-Parish.
Perryman, meanwhile, was not found liable for any cause of action, so the trial court
should not have rendered judgment against him at all, much less ordered him to pay
2
The Rodriguezes continue to use the “Texas Live!” label on appeal and fully acknowledge that “[n]either Plaintiffs nor Defendants distinguished between the Texas Live! entities at trial.”
3
punitive damages. And as for the trial court’s post-judgment sanctions order, it too was
erroneous, as it was not authorized under Rule of Civil Procedure 215.3 or as an exercise
of inherent authority.
Thus, all told, we will reverse the judgment, render a take-nothing judgment as
to the Entities and Perryman, remand the Rodriguezes’ negligence claim against InnerParish for a new trial, and vacate the post-judgment sanctions order.
I. Background
One evening in September 2018, the Rodriguezes joined two friends at Texas
Live!, an indoor, multi-business entertainment center. The group visited PBR bar,3 and
because PBR did not allow souvenir glasses inside, there was a table of stowed souvenir
glasses just outside the entrance—near where Perryman was stationed. When the
Rodriguezes left PBR, Abel asked Perryman about the fate of abandoned souvenir
glasses, and after an exchange of lighthearted banter, Abel took a glass from the table.
The Rodriguezes then walked away to a nearby pizza counter, but Perryman
followed to retrieve the souvenir glass. Perryman and Abel soon got into a tussle over
the glass, and ultimately, Perryman hit Abel over the head with a glass bottle, causing a
brain injury.4
Cynthia described PBR as a “nightclub” with “a mechanical bull, dancing, [and]
3
music.”
The parties disputed the extent of Abel’s brain injury.
4
4
The Rodriguezes filed negligence claims against Perryman, Inner-Parish, and the
Entities, characterizing the latter as “own[ing], operat[ing], manag[ing], and
controll[ing]” the “establishment known as Texas Live!” According to the Rodriguezes,
Inner-Parish was vicariously liable for Perryman’s violence as his employer, and both it
and the Entities were liable for negligently hiring and training Perryman.
A. Trial and Judgment
During the week-long trial that followed, the Rodriguezes’ evidence focused on
what Inner-Parish and the Entities should have done differently. 5 They presented
evidence that Perryman had a relatively recent out-of-state felony conviction for assault;
that Texas law generally prohibited individuals with such convictions from being
licensed as security guards; that Perryman had nonetheless been able to obtain a license
from the State; that Inner-Parish had relied on this license as a means of checking
Perryman’s background; that Inner-Parish might have discovered Perryman’s
conviction if it had conducted a more rigorous background check; and that Inner-Parish
would not have hired Perryman had it known of his assault conviction.6 The
Rodriguezes blamed the entertainment center for Inner-Parish’s allegedly negligent
hiring of Perryman by emphasizing that Inner-Parish answered to the entertainment
5
Inner-Parish stipulated that Perryman was an employee acting within the course and scope of his employment at the time of the incident.
6
The Rodriguezes also criticized Inner-Parish’s training methods and the Entities’ failure to ensure that security guards were properly instructed on de-escalation.
5
center and that the entertainment center had failed to ensure that Inner-Parish
conducted the appropriate background checks.
The Rodriguezes did not offer evidence of the Entities’ individual roles in the
entertainment center, though. Nor did they offer evidence that any of the Entities hired
or directed Inner-Parish. On the contrary, Inner-Parish’s security contract—which was
admitted into evidence—revealed that none of the Entities were signatories to it; the
security contract was between Inner-Parish and a nonparty: JPG Entertainment Group,
LLC. 7
JPG’s connection to the Entities was largely ignored at trial. However, the jury
received—as part of the thousands of pages of exhibits—a copy of a management
contract between JPG and two of the five Entities.8 In that management contract, the
two signatory Entities joined several nonparties to hire JPG for “operational
The security contract expressly affirmed that Inner-Parish “underst[ood] and
7
intend[ed] that [it] shall perform the Services specified . . . as an independent contractor” and that “[n]othing in th[e security contract would] create[] any actual or apparent agency . . . between the Parties.”
The two signatory Entities were Arlington Pavilion, LLC and TXL Western
8
Saloon, LLC. Arlington Live, LLC; Arlington Ballpark District Entertainment Block, Inc.; and Arlington Ballpark District Entertainment Block, LLC were not signatories. And although the management contract identified JPG’s managing member as “Arlington Ballpark Entertainment Block, LLC” or “Arlington District Entertainment Block Investors, LLC,” there was no evidence that this was the same legal entity as Arlington Ballpark District Entertainment Block, LLC.
6
management” of certain portions of the entertainment center. 9 What JPG’s
“operational management” entailed was not explored during the witness testimony,
though. Rather, the Rodriguezes simply equated JPG with the Entities by prompting
witnesses to confirm that “the company that is Texas Live! . . . [wa]s called ‘JPG’ in th[e
security] contract” with Inner-Parish.
The Rodriguezes took this tack as to other entertainment-center affiliates as well.
In fact, everyone involved—the Rodriguezes, the witnesses, and even the Entities
themselves—referred to the Entities and their nonparty entertainment-center affiliates
collectively as “Texas Live!”10
For example, the Rodriguezes called Jim Watry to testify as the “corporate
representative for Texas Live!” 11 But Watry’s job title was that of Vice President of
Operations for a nonparty: Live! Hospitality. Watry explained that Live! Hospitality
9
The management contract stated the signatories’ intention that JPG be
considered “an independent contractor” for tax purposes.
10
After trial, the Rodriguezes argued that the parties had “stipulated at the outset of the trial that ‘Texas Live!’ would be submitted in the jury charge collectively and in substitution of the various related corporations . . . that were named in Plaintiff’s petition.” But the Entities denied that any such stipulation occurred. And on appeal, although the Rodriguezes continue to insist that “all parties, by agreement, treated [the Entities] collectively as a single party,” they have not cited, nor has this court found, any stipulation or agreement in the record.
Watry confirmed that Texas Live! was “an entertainment district” that was
11
“managed by [his] company” and encompassed “many entities that operate under Texas Live!”
7
was “part of the umbrella of Texas Live!,” that there were many entities “that operate[d]
under Texas Live!,” and that he understood the Rodriguezes to be “lumping them
together” for purposes of the trial. Thus, Watry did not distinguish between the
Entities.
Similarly, Inner-Parish’s director of security, Maurice Bullock, testified that
Inner-Parish had contracted with Texas Live! to provide security at the entertainment
center—even though the documentary evidence reflected that Inner-Parish’s security
contract was with JPG. Bullock stated that, both contractually and practically, Texas
Live! had given him the responsibility to screen, hire, and train security guards. But the
Rodriguezes emphasized, and Bullock confirmed, that “Jim Watry and others at Texas
Live!” remained the “bosses of the whole operation,” that Texas Live! “could tell
[Bullock] what to do,” and that Bullock would have conducted additional background
checks and trainings if Texas Live! had asked him to.12
The Rodriguezes thus condemned Texas Live!’s inaction. They pointed to
Watry’s testimony that Texas Live! held a license to sell alcohol, and they argued to the
jury that the Texas Alcoholic Beverage Code imposed nondelegable “responsibilities
[on] . . . a business that sells alcohol through a permit” such that Texas Live! was “not
[statutorily] allowed to surrender control of any portion of [its] operations”—if it
Watry testified that he had hired Inner-Parish, but he did not identify which
12
company within the Texas Live! bundle he had represented in doing so.
8
“hire[d] a third-party security company[,] . . . [the Alcoholic Beverage Code] sa[id] that
[Texas Live! was] in control of [the hired company] at all times.”13
After the evidence closed, the jury was instructed that “an entity that entrusts
work to an independent contractor, but who retains the control of any part of the work,
is subject to liability for physical harm . . . caused by its failure to exercise [its] control
with reasonable care.”14 The jury was then asked a single broad-form liability question:
whether “the negligence, if any, of those named below proximately cause[d] the
occurrence in question.” Three names were listed below: “Texas Live!,” Inner-Parish,
and Abel. “Texas Live!” was not defined, nor was Perryman mentioned.
The jury found both Texas Live! and Inner-Parish liable for negligence, and when
asked to allocate responsibility, it allocated 70% to Texas Live!, 30% to Inner-Parish,
and 0% to Abel. As for damages, the jury found that the Rodriguezes had suffered
more than $5 million in compensatory damages as a result of “the occurrence” caused
by both Texas Live! and Inner-Parish. The jury then went on to find that Perryman
had acted with malice, and it imposed punitive damages of $50 million against Texas
Live!, $5 million against Inner-Parish, and $500,000 against Perryman.
13
Later, the Rodriguezes presented testimony from a security expert that, “Under the Texas Alcoholic Beverage Code, the permittee is responsible for what happens on [its] site.”
The jury did not receive any instructions clarifying the legal legitimacy of the
14
Rodriguezes’ statutory-control theory.
9
When the trial court entered judgment, it interpreted the “Texas Live!” term used
in the jury charge as referencing the Entities collectively, and it entered judgment in
accordance with the verdict.15
B. Post-Judgment Sanctions
After the trial court entered judgment, Inner-Parish disclosed that it had a
$5 million excess insurance policy—a policy it had not produced during discovery. The
Rodriguezes moved for post-judgment sanctions based on Inner-Parish’s late
disclosure.16
At the sanctions hearing that followed, the trial court heard testimony from one
witness: the Inner-Parish employee who had handled the company’s discovery
responses. She admitted that she had been aware of the excess insurance policy before
trial but explained that she had not realized that the policy needed to be disclosed. She
told the trial court that she did not recall discussing the policy with Sanctioned Counsel
15
The judgment held the Entities jointly and severally liable for all damages, “including compensatory damages, exemplary damages, and interest.” And despite Inner-Parish’s and the Entities’ motions to apply the statutory cap on punitive damages, the trial court declined to do so. See Tex. Civ. Prac. & Rem. Code § 41.008.
16
In their motion, the Rodriguezes argued that they had “focused the liability arguments on Texas Live! based solely on their belief that Inner-Parish had insufficient liability coverage.” They did not cite a specific statute or rule authorizing the sanctions they requested.
10
and did not know if he had been aware of it. 17 However, when asked about Texas
Live!’s awareness of the policy, she stated that she believed Inner-Parish had “provided
[the excess insurance policy] to Texas Live[!]” around the time of the security contract
in 2018.18
The Rodriguezes argued that both Inner-Parish and Sanctioned Counsel had
acted in bad faith. They balked at the idea that Sanctioned Counsel had not been aware
of the excess insurance policy, noting that Inner-Parish “ha[d] a common attorney”
with the Entities. 19
The trial court granted the Rodriguezes’ motion and ordered Inner-Parish and
Sanctioned Counsel to pay, jointly and severally, “the amount of the [$5 million] policy
that was wrongfully withheld” as sanctions. The trial court did not cite a legal basis for
its sanctions order. However, in the order, the trial court found that Inner-Parish’s
Inner-Parish’s employee testified that, other than herself and the company’s
17
trial witness—Bullock—she was not sure whether anyone else had spoken to Sanctioned Counsel about the litigation.
Inner-Parish’s security contract with JPG required it to maintain a certain level
18
of insurance coverage.
19
On appeal, the Rodriguezes reference alleged conversations between their counsel and Sanctioned Counsel related to Inner-Parish’s insurance coverage. But there was no evidence of these conversations. Although the Rodriguezes’ trial counsel mentioned them in his argument at the sanctions hearing, “arguments of counsel are not evidence.” Allstate Prop. & Cas. Ins. Co. v. Ford, No. 05-20-00463-CV, 2021 WL 4810358, at *3 (Tex. App.—Dallas Oct. 15, 2021, pet. denied) (mem. op.) (reiterating rule in review of sanctions order).
11
failure to disclose the excess insurance policy during discovery “[wa]s unjustified and
constitute[d] an abuse of the discovery process”; that such failure was “prejudicial” to
the Rodriguezes’ settlement discussions and trial preparation; that “the circumstances,
including the length of time the policy was withheld . . . [and] the Defendants’
relationship to one another, warrant[ed] a presumption that the nondisclosure . . . was
calculated for strategic purposes”; and that lesser sanctions “would be inadequate to
cure the discovery abuse, uphold the integrity of th[e trial c]ourt and the Texas Rules of
Civil [P]rocedure[,] and deter future discovery abuse.”
The Entities, Inner-Parish, Perryman, and Sanctioned Counsel20 all filed appeals.
II. Discussion
The numerous appellate issues before us fall into two buckets: (1) challenges to
the judgment and (2) challenges to the post-judgment sanctions order.
A. Judgment
The Entities, Inner-Parish, and Perryman raise more than ten judgment-related
complaints. We need only address two, plus a third regarding the others’ ramifications:
(1) the Entities assert—correctly—that there was legally insufficient evidence that each
distinct Entity owed the Rodriguezes a duty;21 (2) this error tainted the verdict as to
20
Sanctioned Counsel no longer represents Inner-Parish.
21
Two of the Entities’ appellate issues overlap, so we construe them together as a single dispositive complaint. See Tex. R. App. P. 38.9.
12
Inner-Parish, mooting Inner-Parish’s judgment-related complaints; and (3) Perryman,
for his part, should not have had judgment rendered against him at all.
1. Entities: No Evidence of Duty
In the Entities’ dispositive issue, they argue that there was legally insufficient
evidence to support the duty element of the Rodriguezes’ negligence claim.
“A threshold legal requirement for negligence liability is that the defendant owes
the plaintiff a duty.” Massage Heights Franchising, LLC v. Hagman, 712 S.W.3d 615, 620
(Tex. 2025); see Diamond Offshore Drilling, Inc. v. Black, 652 S.W.3d 463, 472 (Tex. App.—
Houston [14th Dist.] 2022, no pet.) (“Under Texas law, a plaintiff seeking to establish
liability for negligence must prove the existence and violation of a duty owed to him by
the defendant.”). A general contractor who hires a subcontractor “typically does not
have a duty to ensure that [the] independent [sub]contractor safely performs his work.”
Massage Heights Franchising, 712 S.W.3d at 620–21. But an exception applies if the general
contractor controls the subcontractor’s injury-causing work. Id. (explaining further that
“the control ‘must relate to the activity that actually caused the injury’”).
A general contractor’s control may be shown through “an explicit contractual
provision or by evidence of actual exercise of control.” Id. at 621–22; see Lee Lewis
Constr., Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex. 2001) (noting that “determining what
a contract says [about retained control] is generally a question of law for the court, while
determining whether someone exercised actual control is . . . generally a question of fact
for the jury”). Either way, there must be legally sufficient evidence to support the duty’s
13
applicability to the defendant at issue. See Diamond Offshore Drilling, 652 S.W.3d at 473
(noting that an employer’s duty to an employee is a question of law, but even then, “to
warrant the imposition of these duties, the record must contain legally sufficient
evidence to support a finding of an employment relationship”). In other words, the
fact that someone controlled the subcontractor’s activities is irrelevant unless that
someone is the defendant being sued.
In conducting a legal sufficiency review, we must determine whether the
evidence of the duty element amounted to more than a scintilla when viewed in a light
most favorable to the verdict. Lee Lewis Constr., 70 S.W.3d at 782–83. “Evidence is
more than a scintilla if it ‘rises to a level that would enable reasonable and fair-minded
people to differ in their conclusions’”; it is less than a scintilla if it “does no more than
create a mere surmise or suspicion.” Diamond Offshore Drilling, 652 S.W.3d at 474; see Lee
Lewis Constr., 70 S.W.3d at 782–83.
Here, the Rodriguezes defend the jury’s implied finding of duty by advancing
three theories of control: statutory, contractual, and actual.22 But for any of these
theories to support the verdict, the Rodriguezes must have presented more than a
The Entities assert that the jury charge did not encompass the Rodriguezes’
22
theories of statutory or actual control. We need not address this argument, though, as there was no evidence of any of the Rodriguezes’ duty theories anyway. See Tex. R. App. P. 47.1.
14
scintilla of evidence of the specific entity with the alleged statutory, contractual, or
actual control.
a. Statutory Control
The Rodriguezes’ statutory theory of duty—their primary argument at trial and
on appeal—is premised on the Entities’ holding permits to sell alcohol. The
Rodriguezes claim that, under the Alcoholic Beverage Code, a permit to sell alcohol
imposes a nondelegable duty on the permittee to “maintain exclusive occupancy and
control of the entire licensed premises in every phase of the storage, distribution,
possession, . . . transportation[,] and sale of all alcoholic beverages purchased, stored[,]
or sold on the licensed premises.”23 Tex. Alco. Bev. Code § 109.53. The Rodriguezes
do not cite any on-point case law recognizing the Alcoholic Beverage Code as imposing
a duty on a permittee to control security-related subcontractors for purposes of a
common law negligence claim.24 Regardless, their statutory-duty theory fails at a more
fundamental level because there was no evidence showing which Entity or Entities held
the relevant alcohol permit. See id.
At trial, the Rodriguezes suggested that, if Abel was intoxicated when the
23
incident occurred, the entertainment center was responsible for overserving him. And on appeal, they repeatedly refer to Texas Live! as “a licensed dram shop.” But the Rodriguezes did not plead or seek findings on a claim under the Dram Shop Act. See Tex. Alco. Bev. Code § 2.02.
Whether the Alcoholic Beverage Code can support such a duty is a question of
24
law—not a fact issue for the jury.
15
Watry testified that “Texas Live!” held an alcohol permit, but the “Texas Live!”
label “lump[ed] . . . together” numerous businesses, including nonparties. Did each
company under the Texas Live! umbrella have its own alcohol permit? And whose
permit covered the “licensed premises” at issue here? See id. The Rodriguezes did not
offer evidence to answer these questions. There was no evidence that any of the five
Entities held an alcohol permit at the time of the incident, much less that one of their
permits covered the relevant “licensed premises.” See id. So, even assuming that the
Alcoholic Beverage Code could support the statutory duty that the Rodriguezes claim,
there was no evidence showing which, if any, of the Entities owed a duty.
b. Contractual Control
The Rodriguezes’ second theory of duty is similarly flawed. They claim that
Inner-Parish’s security contract reflected that the Entities retained contractual control
over the hiring and training of security guards. But none of the Entities were signatories
to the security contract; it was between Inner-Parish and JPG—a nonparty.
The Rodriguezes try to avoid this contractual reality by daisy-chaining the
Entities’ responsibility via JPG’s separate management contract. Much like the
Rodriguezes’ statutory theory of duty, their daisy-chained-contract theory is legally
questionable. Cf. Gonzalez v. VATR Constr. LLC, 418 S.W.3d 777, 781–86 (Tex. App.—
Dallas 2013, no pet.) (rejecting similar daisy-chained-contract argument when deceased
roofer had been hired by sub-sub-subcontractor but estate sued contractors several tiers
upstream and noting that estate could not “rely on upstream contracts to establish the
16
existence of a duty”). But even putting that aside, only two of the Entities were
signatories to the management contract with JPG, so the daisy-chained-contract theory
could not apply to three of the five Entities. Moreover, even as to the two signatory
Entities, the Rodriguezes do not identify any provision of the management contract
that explicitly retains the signatory Entities’ control over JPG’s subcontractor’s hiring
or training of security guards. Instead, on appeal, the Rodriguezes revert to their
argument that, as “the licensed alcohol provider,” the Texas Live! bundle necessarily
retained control—an argument we have already rejected.
Thus, there was no evidence that any of the Entities retained contractual control
over Inner-Parish’s injury-causing actions. The Rodriguezes’ contract-based theory of
duty fails.
c. Actual Control
This brings us to the Rodriguezes’ final theory of duty: actual control. But the
Entities’ collective treatment again proves problematic because, for each allegedly
controlling action, there was no evidence showing which company within the Texas
Live! bundle was acting.
For example, the Rodriguezes claim that Watry acknowledged exercising actual
control when he testified that he had “met with the different security companies and
told them what [his] staffing needs were” and “what levels of security officers [he] w[as]
willing to pay [for].” But Watry did not identify which company he was representing
when he had these meetings and conversations; he referred to Texas Live! collectively.
17
Similarly, the Rodriguezes point to Bullock’s testimony that “Watry and others
at Texas Live!” were “the bosses” and that, after the incident, “Watry . . . came to
[Bullock] and said ‘[Perryman] c[ould] no longer work [at the entertainment center].’”
But again, Bullock did not identify which company Watry or the “others at Texas Live!”
were representing when they acted as “the bosses” or told him not to assign Perryman
to the entertainment center.
The Rodriguezes further rely on their security expert’s testimony that Texas Live!
demonstrated actual control over Inner-Parish by selecting the guards’ locations and
requiring them to check identifications. Cf. Massage Heights Franchising, 712 S.W.3d at
620–21 (describing lower court’s control analysis as “flawed” because the court
“focuse[d] on a general right of control over operations” rather than on the franchisor’s
“specific control over the alleged . . . defects that led to [the plaintiff’s] injury[, i.e., the
franchisee’s employee’s] hiring” (internal quotation marks omitted)). But as before, the
security expert did not identify which company he was referencing with the aggregate
“Texas Live!” label.
Because there was no evidence that one of the five Entities was the actor engaged
in the allegedly controlling actions, the Rodriguezes’ actual-control theory fails.
d. No Control
In sum, the Rodriguezes’ failure to distinguish between the Entities produced a
record with no evidence that any of the five specific Entities sued held the relied-upon
alcohol permit, retained contractual control, or exercised actual control. Accordingly,
18
we sustain the Entities’ dispositive issue, reverse the judgment as to them, and render
judgment that the Rodriguezes take nothing on their negligence claims against the
Entities.
2. Inner-Parish: Complaints Mooted by Need for New Trial
Our reversal of the judgment against the Entities has knock-on effects for InnerParish.
The Rodriguezes’ negligence claim against Inner-Parish was intertwined with
their negligence claims against the Entities. Indeed, in the Rodriguezes’ closing
argument, they told the jury that “every act of negligence that Inner[-]Parish committed
belongs to Texas Live!” But because there was no evidence to support imposing liability
on any of the five Entities sued, those Entities should not have been included in the
jury charge—as part of the amorphous Texas Live! bundle or otherwise. Yet, not only
was the Texas Live! bundle included in the charge, but the jury was also asked to decide
Inner-Parish’s and Texas Live!’s negligence in broad form and to apportion
responsibility between Abel, Inner-Parish, and Texas Live! Then, after the jury
concluded that the Texas Live! bundle was 70% responsible for causing the occurrence,
it was asked to determine the amount of damages “that [had] resulted from the
occurrence in question.” Needless to say, the jury might have apportioned
responsibility and assessed damages differently had Texas Live! not been included in
19
the charge. 25 See Diamond Offshore Drilling, 652 S.W.3d at 481–83 (holding that reversal
of judgment as to one defendant required retrial as to other defendant because “the jury
foreseeably could have apportioned liability differently between [the remaining
defendant] and [the plaintiff] had [the defendant without a duty] not been erroneously
included in the apportionment question”); Heritage Hous. Dev., Inc. v. Carr, 199 S.W.3d
560, 570–71 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (holding that reversal of
judgment as to one defendant required retrial as to another defendant because the
appellate court was “not reasonably certain that [the erroneously included defendant’s]
inclusion in the jury charge did not affect the jury’s apportionment of liability or the
finding of damages against [the remaining defendant]”); cf. Romero v. KPH Consol., Inc.,
166 S.W.3d 212, 226 (Tex. 2005) (holding that reversal of some claims required retrial
due to allocation question and noting that, “[e]ven if the jury could still have made the
same apportionment of fault, the error in the question is nevertheless reversible because
it effectively prevents [one of the appellants] from complaining on appeal that they
would not have done so”). A new trial is thus required as to Inner-Parish. 26 See Heritage
25
The Entities objected to the “Texas Live!” line-item in the charge based on the lack of evidence showing that they owed a duty. Cf. Diamond Offshore Drilling, 652 S.W.3d at 481–83 (holding, in similar case, that defendants were not required to object to apportionment question when apportionment issue stemmed from appellate court’s holding that evidence was insufficient to support one defendant’s liability).
26
Our disposition of the judgment as to the Entities and Perryman does not impair the legal viability of the Rodriguezes’ claim against Inner-Parish.
20
Hous. Dev., 199 S.W.3d at 570–72 (“If the jury’s apportionment of liability could have
been affected by an issue on which the trial court charged the jury but on which there
was legally insufficient evidence, a new trial on the entire negligence claim is required.”);
cf. Romero, 166 S.W.3d at 230–31 (remanding for new trial).
And because Inner-Parish does not raise any rendition-seeking challenges to the
jury’s liability finding against it, the need for a new trial moots all of Inner-Parish’s
judgment-related complaints.
3. Perryman: No Liability Finding
Perryman’s appellate issues are not moot, though. In his dispositive issue, he
asserts that, because the Rodriguezes did not seek jury findings holding him liable for
any cause of action, the jury’s finding of malice and award of punitive damages were
“untethered to any underlying liability finding,” and the corresponding portions of the
judgment must be set aside. The Rodriguezes protest, insisting that the jury’s finding
of malice was equivalent to a finding that Perryman was liable for a cause of action:
namely, “malicious conduct.”
But “Texas does not have a specific cause of action for ‘malice’[; r]ather, it is an
element when determining exemplary damages.” Arana v. Figueroa, 559 S.W.3d 623, 634
(Tex. App.—Dallas 2018, no pet.). And exemplary damages are “simply [a type] of
damages recoverable under a[n independent] cause of action.” Lyden v. Aldridge, No.
02-23-00227-CV, 2023 WL 6631528, at *3 n.4 (Tex. App.—Fort Worth Oct. 12, 2023,
21
no pet.) (mem. op.) (quoting Robbins v. Payne, 55 S.W.3d 740, 747 (Tex. App.—Amarillo
2001, pet. denied)); see Tex. Civ. Prac. & Rem. Code § 41.004(a).
Here, although the Rodriguezes pleaded a negligence claim against Perryman,
they did not seek or obtain jury findings holding him individually liable for that claim
or for any other. The Rodriguezes thus waived their negligence claim against Perryman
in his individual capacity, along with any damages—or punitive damages—they might
have recovered from him individually. See Tex. Civ. Prac. & Rem. Code § 41.004(a)
(providing general rule that “exemplary damages may be awarded only if damages other
than nominal damages are awarded”); Tex. R. Civ. P. 279 (“Upon appeal all independent
grounds of recovery or of defense not conclusively established under the evidence and
no element of which is submitted or requested are waived.”); United Scaffolding, Inc. v.
Levine, 537 S.W.3d 463, 481 (Tex. 2017) (holding that plaintiff “waived his premises
liability claim” by failing to request a premises liability question or obtain jury findings
on the theory).
We reverse the judgment as to Perryman and render judgment that the
Rodriguezes take nothing against him. See Clayton W. Williams, Jr., Inc. v. Olivo, 952
S.W.2d 523, 530 (Tex. 1997) (reversing and rendering when plaintiffs “did not secure
proper jury findings on their only viable cause of action” and therefore “waived that
claim”); W & F Transp., Inc. v. Wilhelm, 208 S.W.3d 32, 44–47 (Tex. App.—Houston
[14th Dist.] 2006, no pet.) (op. on reh’g) (reversing and rendering as to two defendants
when plaintiff sought and obtained liability finding only as to third defendant).
22
B. Post-Judgment Sanctions
In addition to challenging the judgment itself, Inner-Parish and Sanctioned
Counsel challenge the trial court’s post-judgment sanctions order. They claim that the
sanctions order was an abuse of discretion as it (1) exceeded the bounds of the rule it
purported to rely upon—Rule of Civil Procedure 215.3—and (2) was not authorized as
an exercise of the trial court’s inherent authority. See Brewer v. Lennox Hearth Prods., LLC,
601 S.W.3d 704, 717 (Tex. 2020) (“We review a trial court’s sanctions order for abuse
of discretion . . . view[ing] conflicting evidence favorably to the court’s
decision . . . [but] review[ing] the entire record independently.”); see also Johnson v.
Windsong Ranch Cmty. Ass’n, No. 02-24-00483-CV, 2025 WL 2492347, at *9 (Tex.
App.—Fort Worth Aug. 29, 2025, pet. denied) (mem. op.). We agree.
1. Rule 215.3 Authority
The trial court did not cite a legal basis for its sanctions order, but it found that
Inner-Parish had committed “an abuse of the discovery process,” tracking the language
of Texas Rule of Civil Procedure 215.3.27 See Tex. R. Civ. 215.3 (providing sanctioning
authority for “Abuse of Discovery Process in . . . Resisting Discovery”).
Inner-Parish and Sanctioned Counsel assert that because the sanctions order
27
tracked Rule 215.3’s language, and because the conduct at issue involved alleged discovery abuse, the order could not have been an exercise of the trial court’s inherent authority. Compare In re Garcia, No. 02-20-00161-CV, 2020 WL 4907330, at *2–3 (Tex. App.—Fort Worth Aug. 20, 2020, orig. proceeding) (mem. op.) (noting that appellate review of sanctions order was not confined to specific rule even though trial court had verbally stated “the discovery process ha[d] been abused”), with Ford Motor Co. v. Tyson, 943 S.W.2d 527, 533 (Tex. App.—Dallas 1997, orig. proceeding) (noting that, because
23
Rule 215.3 authorizes a trial court to sanction a party or its counsel “[i]f the [trial]
court finds [the] party is abusing the discovery process in . . . resisting discovery.” 28 Id.
However, as our sister courts have recognized, the Rule contemplates certain types of
sanctions in particular: those “authorized by paragraphs (1), (2), (3), (4), (5), and (8) of
Rule 215.2(b).” Id.; see Frenkel v. Courtney, No. 05-21-01114-CV, 2023 WL 3914549, at
*6 (Tex. App.—Dallas June 9, 2023, pet. denied) (mem. op.) (“The available sanctions
for abusing the discovery process while resisting discovery are enumerated in Rule
215.2(b).”); Oscar Luis Lopez v. La Madeleine of Tex., Inc., 200 S.W.3d 854, 865 (Tex.
App.—Dallas 2006, no pet.) (holding trial court did not abuse discretion by denying
motions for sanctions that would have compensated for cause of action and explaining
that “[a]ny monetary sanctions available for abuse of discovery are limited to reasonable
expenses, including attorney’s fees, caused by the abuse”); cf. In re Reece, 341 S.W.3d 360,
368 (Tex. 2011) (orig. proceeding) (commenting in dicta that, rather than holding a
trial court “specifically stated in its order that the sanctions imposed [we]re for abuse of the discovery process,” the appellate court’s review was “controlled by [R]ule 215(3)”). We need not address this issue because the trial court’s sanctions order was not authorized under either Rule 215.3 or its inherent authority. See Tex. R. App. P. 47.1.
The sanctions order referenced Inner-Parish’s appeal and Inner-Parish’s
28
sharing a “common attorney [with the Entities] during the trial.” But “Rule 215 is addressed to pretrial discovery misconduct only.” Remington Arms Co. v. Caldwell, 850 S.W.2d 167, 170–72 (Tex. 1993) (recognizing that a trial court could impose post-trial sanctions for discovery violations revealed during or after trial but that a Rule 215 sanctions order cannot “be supported by findings of trial misconduct”).
24
party in contempt, a trial court could find an abuse of the discovery process under Rule
215.3 and impose the range of sanctions in Rule 215.2(b)(1)–(5), (8)). And here, the
sanction imposed by the trial court was not among the Rule’s contemplated types.
The $5 million sanction was a punitive fine in the amount of Inner-Parish’s latedisclosed insurance policy. It was not “an order disallowing any further discovery,”
Tex. R. Civ. P. 215.2(b)(1); “an order charging [the violator or its counsel] all or any
portion of the expenses of discovery or taxable court costs,” Tex. R. Civ. P. 215.2(b)(2);
“an order that . . . [certain] facts shall be taken to be established for the purposes of the
action,” Tex. R. Civ. P. 215.2(b)(3); “an order refusing to allow the disobedient party to
support or oppose designated claims or defenses, or prohibiting [it] from introducing
designated matters in evidence,” Tex. R. Civ. P. 215.2(b)(4); “an order striking out
pleadings . . . or staying further proceedings until the order is obeyed, or dismissing with
or without prejudice the action or proceedings,” Tex. R. Civ. P. 215.2(b)(5); or an order
requiring the disobedient party or its counsel to pay “the reasonable expenses, including
attorney fees, caused by the failure,” Tex. R. Civ. P. 215.2(b)(8).
Thus, to the extent that the trial court relied on Rule 215.3 for its sanctions order,
it abused its discretion by exceeding Rule 215.3’s governing rules and principles. See
Brewer, 601 S.W.3d at 717 (“A trial court abuses its discretion if it acts without reference
to guiding rules and principles such that the ruling is arbitrary or unreasonable.”); see
also Frenkel, 2023 WL 3914549, at *6 (holding that, because the “$1,000 fine . . . and
additional hours of CLE[] d[id] not fall within the relevant paragraphs of Rule
25
215.2[,] . . . Rule 215 [could] not form the basis for affirming the trial court’s sanctions
order”); Ford Motor, 943 S.W.2d at 533 (reviewing sanctions order and noting that “[t]he
amount the trial court imposed [wa]s not compensatory or remedial[;] . . . [i]t [wa]s
simply a fine—an amount imposed to punish . . . [—and] Rule 215(3) does not
authorize such a fine”).
2. Inherent Authority
But according to the Rodriguezes, the trial court did not rely on Rule 215.3
anyway—it relied solely on its inherent sanctioning authority. This legal basis fails too,
though, as the trial court did not make the predicate findings necessary to support an
exercise of its inherent sanctioning authority. See Garcia, 2020 WL 4907330, at *4–5
(holding trial court abused discretion by issuing sanctions order under inherent
authority without making requisite findings of bad faith and that the complained-of
conduct significantly interfered with the trial court’s legitimate exercise of its core
functions).
Nor would the record have supported the necessary predicate findings, as there
was no evidence of bad faith. See In re Newkirk Logistics, Inc., 718 S.W.3d 240, 247 (Tex.
2025) (orig. proceeding) (clarifying that party seeking sanctions has “the burden of
establishing [its] right to relief”).
“[I]nvocation of the court’s inherent power to sanction necessitates a finding of
bad faith,” i.e., a finding of “not just intentional conduct but intent to engage in conduct
for an impermissible reason, willful noncompliance, or willful ignorance of the facts.”
26
Brewer, 601 S.W.3d at 718–19 (explaining that “[e]rrors in judgment, lack of diligence,
unreasonableness, negligence, or even gross negligence—without more—do not equate
to bad faith”). While “[b]ad faith can be established with . . . circumstantial
evidence, . . . absent direct evidence, the record must reasonably give rise to an
inference of intent or willfulness.” Id. at 719.
The record here did not reasonably give rise to an inference that Inner-Parish or
Sanctioned Counsel consciously acted for an impermissible purpose when they failed
to timely disclose the excess insurance policy.
The Inner-Parish employee who handled the company’s discovery testified that
she had not realized that the policy needed to be produced in discovery. There was no
evidence that she had discussed the policy with others or intentionally withheld the
policy. And though the trial court was not required to believe her testimony, see Johnson,
2025 WL 2492347, at *9 (“The trial court is in the best position to examine the
sanctioned parties’ credibility, and we defer to those credibility assessments.”), there
was no evidence contradicting her version of events or suggesting a dishonest motive.
Improper motive might have been reasonably inferable if, for example, the trial court
had heard evidence that Inner-Parish had engaged in a pattern of similar conduct29 or
29
In the Rodriguezes’ appellate defense of the sanctions order, they argue that Inner-Parish had a pattern of burying evidence, pointing to trial testimony regarding a missing surveillance video of the incident between Perryman and Abel. But the trial testimony was ambiguous as to whether a surveillance video ever existed. Bullock testified that he had watched a surveillance video, but the police reports indicated that the surveillance cameras had not been working. Even the Rodriguezes, in another
27
had waited to disclose the policy until being caught red-handed, but it heard no such
evidence, and the employee’s “error, without more, [wa]s no evidence of improper
motive.” Brewer, 601 S.W.3d at 716–17 (clarifying that an error alone is not evidence of
improper motive “unless the conduct could not have occurred without conscious
wrongdoing”); see Newkirk Logistics, 718 S.W.3d at 247–49 (holding insufficient evidence
of intentional failure to produce documents in discovery and stating that the opposing
party’s “mere skepticism or bare allegations . . . w[ould] not do” (internal quotation
marks omitted)).
As for Sanctioned Counsel, there was even less evidence that he had acted in bad
faith.30 Inner-Parish’s employee testified that she did not recall ever discussing the
excess insurance policy with Sanctioned Counsel before trial. And although she
indicated that Inner-Parish had provided the policy to Texas Live! years before the
portion of their appellate argument, take the position that “[t]he ‘allegedly’ missing video never existed.” Yet, they simultaneously assert, in their defense of the sanctions order, that the video “was stored on Texas Live!’s server and then deleted (or otherwise not produced).” The Rodriguezes cannot have their cake and eat it, too. And, even if they could, their sanctions-related argument appears to blame Texas Live! for the tape’s disappearance, and Texas Live! was not sanctioned—Inner-Parish was sanctioned.
30
The trial court sustained Inner-Parish’s objection to Sanctioned Counsel’s testimony based on attorney–client privilege. The Rodriguezes do not challenge this ruling on appeal. Yet, they urge us to infer bad faith from Sanctioned Counsel’s “refus[al] to answer questions under oath.” We will not infer bad faith from an attorney’s honoring his client’s assertion of attorney–client privilege. See Emami v. Emami, No. 02-21-00319-CV, 2022 WL 3273603, at *4 (Tex. App.—Fort Worth Aug. 11, 2022, no pet.) (mem. op.) (explaining that “it is the client who is the holder of the privilege, [and] the power to waive it is his”); see also Tex. R. Evid. 503(b)(1).
28
litigation began, the “Texas Live!” label encompassed numerous companies—including
nonparties. There was no evidence that one of the five sued Entities had a copy of
Inner-Parish’s excess insurance policy or had discussed that policy with Sanctioned
Counsel. In other words, there was no evidence that Sanctioned Counsel was even
aware of the excess insurance policy during discovery. And without such evidence, the
trial court could not have concluded that Sanctioned Counsel withheld it for an
improper purpose. See Brewer, 601 S.W.3d at 716–19.
Because the trial court did not find—and could not have found—bad faith, it
was not authorized to issue the sanctions order as an exercise of its inherent sanctioning
authority. So, to the extent that the trial court relied on this source of authority, it
abused its discretion.
3. No Authority
Because the trial court’s sanctions order was not authorized under Rule 215.3 or
as an exercise of inherent authority, we sustain Inner-Parish’s and Sanctioned Counsel’s
dispositive sanctions-related issues and vacate the post-judgment sanctions order.31 See
31
The Rodriguezes argue that the sanctions order should be remanded to the trial court for a reconsideration of the $5 million amount. Cf. Nath v. Tex. Children’s Hosp., 446 S.W.3d 355, 373 (Tex. 2014) (remanding sanctions for reassessment of amount when “trial court failed to examine the extent to which the [other parties] caused the expenses” charged as sanctions); PR Invs. & Specialty Retailers, Inc. v. State, 251 S.W.3d 472, 480 (Tex. 2008) (remanding sanctions for reconsideration when trial court relied on “erroneous belief that it lacked jurisdiction . . . and could not grant a lesser sanction”). But the amount of the trial court’s sanctions order is not its dispositive flaw; rather, the sanction was not of a type authorized by Rule 215.3, and it was not authorized as an exercise of the trial court’s inherent authority. See Brewer, 601 S.W.3d
29
id. at 730; Frenkel, 2023 WL 3914549, at *7; Union Carbide Corp. v. Martin, 349 S.W.3d
137, 148 (Tex. App.—Dallas 2011, no pet.).
III. Conclusion
Both the judgment and the post-judgment sanctions order are riddled with
errors. We reverse the judgment, render a take-nothing judgment as to the Entities and
Perryman, remand the Rodriguezes’ negligence claim against Inner-Parish for a new
trial, and vacate the post-judgment sanctions order.
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Delivered: October 15, 2026
at 730 (vacating sanctions order when record did not support bad-faith finding); Frenkel, 2023 WL 3914549, at *7 (vacating sanctions order when type of sanction was not authorized by Rule 215.3 and record did not support bad-faith finding).
30