Wilma Earl Cain, Wanda Cain Cooks, Individually and on Behalf of the Estate of Keithan Earl Cain, and Alysia Madlock, as Next Friend of Kiara Cain and Jaylon Cain v. Keeling Enterprises D/B/A Vice Terrace Apartments, Vine Terrace Apartments, and Jim Keeling

MARY'S OPINION HEADING NO. 12-01-00022-CV IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS WILMA EARL CAIN, WANDA CAIN-COOKS, § APPEAL FROM THE INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF KEITHAN EARL CAIN, DECEASED, AND THEIR ATTORNEY, ANTHONY GULLEY, APPELLANTS § COUNTY COURT AT LAW #2 KEELING ENTERPRISES, VINE TERRACE APARTMENTS, AND JIM KEELING, APPELLEES § SMITH COUNTY, TEXAS PER CURIAM Wilma Earl Cain and Wanda Cain-Cooks, Individually and on Behalf of the Estate of Keithan Earl Cain, Deceased, and their attorney, Anthony Gulley, (collectively "Appellants") appeal from an order awarding $7,000.00 in monetary sanctions against them to be paid to Keeling Enterprises d/b/a Vine Terrace Apartments, Vine Terrace Apartments, and Jim Keeling, (collectively "Appellees"). In two issues, Appellants contend that the trial court erred. We reverse and render. Background In May of 1997, Appellants and Alysia Madlock, as Next Friend of Kiara Cain and Jaylon Cain ("Madlock"), filed suit alleging Appellees were responsible for the wrongful death of Keithan Earl Cain. Appellees, after fifteen months of litigation, filed motions for sanctions against Appellants and Madlock for a number of alleged discovery abuses. In September of 1998, the trial court dismissed Appellants' and Madlock's suit, with prejudice. On appeal, our court reversed (1) this death penalty sanction because lesser sanctions had not first been tried by the trial court as mandated by our Supreme Court. See Transamerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 916 (Tex. 1991) (orig. proceeding). We remanded this matter to the trial court for further proceedings. Upon remand, Appellees filed a Supplemental Motion for Sanctions for Abuse of Discovery Process and for Failure to Appear for Depositions of Plaintiffs. In this motion filed pursuant to Rule 215 of the Texas Rules of Civil Procedure, Appellees allege that Appellants and Madlock had committed at least thirteen discovery and process abuses which included: (1) failing to identify the identity of an expert although properly requested to do so; (2) submitting answers to interrogatories which were evasive and vague; (3) representing the case was ready for trial when discovery was incomplete due to their conscious indifference and failure to cooperate in the discovery process; (4) failing to supplement their discovery responses when required to do so; (5) failing to appear for properly noticed depositions; (6) failing to disclose the identity of any of their experts; (7) failing to appear at the September 9, 1998, (2) sanctions hearing or even acknowledge it; (8) filing a non-suit five days prior to their September 9, 1998, sanctions hearing in an attempt to avoid likely sanctions as a result of their abuse of the discovery process; (9) filing a motion for new trial four days late and mailing the motion to the County Clerk of Smith County rather than the District Clerk of Smith County; (10) filing a notice of appeal and motion to extend time to file notice of appeal prior to obtaining a ruling on their motion for new trial; (11) failing to file a docketing statement under the appellate rules of procedure in their first appeal to the court of appeals; (12) filing a second suit against Appellees identical to the original case which was still on appeal; and (13) failing to pay the costs of their first appeal which had been assessed against them by the court of appeals. Appellees' attorney attached two affidavits to the supplemental motion stating that $25,353.57 in attorneys' fees and expenses had been incurred "concerning the events made the subject of this action." The trial court held hearings on Appellees' motion for sanctions on the 23rd and 27th of October, 2000. Neither the Appellees, Appellants or Madlock (3) introduced any evidence at these two hearings, but rather relied upon argument by counsel to the trial judge. Following the October 27th hearing, the trial judge requested that Appellees furnish to her their invoices which were "directly attributable to the delay in this matter." She specifically told Appellees to furnish a copy of these invoices to the Appellants and Madlock. On October 31st, Appellees sent a letter to the trial judge providing her with their invoices. However, the letter stated that these invoices were being submitted only in camera for the court's review. Copies of these invoices were not furnished to the Appellants or Madlock. The next day, on November 1st, the trial court signed an order granting Appellees $7,000.00 in monetary sanctions specifically against Appellants. The order did not reference Madlock. The trial court further stated that "all other claims for relief in this action not expressly granted herein are denied." Also on November 1st, counsel for Madlock requested that the trial court enter an order specifically showing that there were no sanctions against Madlock. On November 16th, the trial court entered an "Order on Defendant's Supplemental Motion for Sanctions," which simply stated that no financial sanctions or costs were levied against Madlock. On December 1, 2000, Appellants filed a motion for new trial stating, among other things, that there was no evidence which enabled the court to "find a direct relationship between the alleged offensive conduct and the sanction imposed." This motion for new trial was overruled by operation of law. On January 31, 2001, Appellants timely filed their notice of appeal. Jurisdiction In their second issue, Appellants contend that the trial court's order of November 16, 2000, was the final judgment in this proceeding, and that their appeal of the November 1st order should be dismissed for lack of jurisdiction because it was an appeal of an interlocutory order. Appellees respond that the trial court's November 1st order was a final and appealable order because it disposed of all remaining issues and parties in the case. We agree with Appellees. To determine whether an order disposes of all pending claims and parties, it may be necessary for the appellate court to look to the record in the case. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205-06 (Tex. 2001). In her order of November 1st, the trial court stated that the $7,000.00 in monetary sanctions were being levied against the Appellants. Madlock's name was not included in the list of those parties being sanctioned. At the October 27th hearing, the trial judge stated, "I tell you right now I'm not going to sanction Ms. Madlock or the minor children." The only claim before this court at the time of the November 1st order was monetary sanctions. A judgment that actually disposes of every remaining issue in a case is not interlocutory merely because it recites that it is partial or refers to only some of the parties or claims. Id. at 200. It is clear to us from a review of the record that the November 1st order was the final order to be appealed and that the order of November 16th only expressly stated what had been implied in the November 1st order, that Madlock was not to be sanctioned. We have jurisdiction to consider this appeal. Appellants' issue two is overruled. Monetary Sanctions In their first issue, Appellants allege that the trial court abused its discretion in awarding monetary sanctions because there is no evidence in the record establishing that they were just, as mandated by Transamerican. The discovery sanctions are within the trial court's discretion and will be set aside only if the court clearly abused its discretion. Bodnow Corp. v. City of Hondo, 721 S.W.2d 839, 840 (Tex. 1986). Our Supreme Court specifically lists two factors which mark the bounds of the trial court's discretion in order for sanctions to be just. Transamerican, 811 S.W.2d at 917. First, there must be a direct relationship between the offensive conduct and the sanction imposed. Id. Second, the sanction imposed must not be excessive. In other words, the punishment should fit the crime. Id. In determining what sanctions are appropriate, the court should consider the prejudice which the objectionable conduct has caused the opposing party. Braden v. Downey, 811 S. W.2d 922, 929 (Tex. 1991). Just as sanctions should not substitute for an adjudication of the merits of the case, so also a party should not be permitted to abuse the rules of procedure as to cause an opposing party such unnecessary delay and expense that he is forced to forsake his position. Id. at 929-30. Monetary sanctions are appropriate to prevent a party from taking such unjust advantage of another. Id. at 930. Thirteen specific acts of sanctionable conduct were alleged by Appellants as described above. The trial court imposed a monetary sanction of $7,000.00. We first review the evidence to determine if there was a direct relationship between these thirteen acts of alleged sanctionable conduct and the monetary sanctions imposed. Here, no findings of fact and conclusions of law were requested by any of the parties. When findings of fact and conclusions of law are not requested or filed, the judgment of the trial court must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Cantu v. Harris, 660 S.W.2d 638, 640 (Tex. App.-Corpus Christi 1983, no writ). We have examined the record to determine whether there is any probative evidence that might support implied findings of fact. In the record before us, there are two affidavits signed by Appellees' counsel. These state the number of hours expended by counsel and their staff for Appellees, as well as their hourly rates. No detailed billing is described in these affidavits. Counsel further state that these expenditures of time were made in "representing the interests of defendants concerning the events made the subject of this action." Absent an objection at the time of trial, the trial court may properly consider an affidavit as evidence. Naficy v. Breaker, 642 S.W.2d 282, 285 (Tex. Civ. App.-Houston [14th Dist.] 1982, writ ref'd n.r.e.). Although the affidavits constitute probative evidence, they do not show a direct relationship between the offensive conduct and the sanction imposed as required by Transamerican. There is no evidence before us specifically tying the $7,000.00 to specific sanctionable conduct alleged by Appellees. We do not know if the entire $7,000.00 in sanctionable costs was based on fees and expenses incurred by Appellees for Appellants' failure to show up for the deposition, costs associated with the first appeal to this Court, or the eleven other alleged acts of discovery or process abuse. Thus, there is no evidence to establish the direct relationship between the offensive conduct and the sanction imposed. See Transamerican, 811 S.W.2d at 917. Further, there is no evidence for us to determine whether these sanctions were excessive. See id. The evidence does not support the legal theories required to find the direct relationship that must exist between the offensive conduct and the sanctions imposed. It is an abuse of discretion for a trial court to rule without supporting evidence. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). Appellees contend that their invoices submitted to the trial judge in camera on October 31, would constitute evidence which would support the trial court's judgment of sanctions. Said invoices were never admitted into evidence and are not in the appellate record before us. Further, it is undisputed by Appellees that these invoices were not supplied in their post-hearing correspondence to Appellants. Documentation submitted in camera without being furnished to the opposing party does not provide the evidence necessary to obtain sanctions. See Global Services, Inc. v. Bianchi, 901 S.W.2d 934, 938 (Tex. 1995). We hold that there is no evidence in the record to support the court's implied findings that the monetary sanctions it levied against Appellants in this matter were just. Appellants' issue one is sustained. Accordingly, we reverse the judgment of the trial court below and render judgment that Appellees take nothing against Appellants. Opinion delivered August 31, 2001. Panel consisted of Davis, C.J., Worthen, J., and Griffith, J. (DO NOT PUBLISH) 1. Wilma Earl Cain, Wanda Cain-Cooks, Individually and on Behalf of the Estate of Keithan Earl Cain, Alysia Madlock as Next Friend for Kiara Cain and Jaylon Cain v. Keeling Enterprises d/b/a Vine Terrace Apartments, Vine Terrace Apartments, and Jim Keeling, No. 12-98-00321-CV (Tex. App.-Tyler October 28, 1999, pet. denied) (not designated for publication). 2. On September 4, 1998, Appellants and Madlock non-suited their causes of action against Appellees after the sanctions hearing on September 9, 1998, and the trial court dismissed Appellants' and Madlock's suit with prejudice. As noted above, this death penalty sanction was the subject of the first appeal. 3. Madlock retained separate counsel for this hearing and also the new wrongful death suit filed by her and Appellants after the non-suit of September 1998.