Ganter, Chris d/b/a Ganter Development and Paydirt Real Estate Investment Trust v. Alpha Testing, Inc.


AFFIRM; Opinion issued July 5, 2012



In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-10-01228-CV
............................
                                                
CHRIS GANTER D/B/A GANTER DEVELOPMENT AND PAYDIRT REAL ESTATE INVESTMENT TRUST F/K/A GANTER DEVELOPMENT, L.L.C., Appellants

V.
ALPHA TESTING, INC., Appellee
.............................................................
On Appeal from the County Court at Law No. 5
Collin County, Texas
Trial Court Cause No. 2-1150-2009
.............................................................
MEMORANDUM OPINION
Before Justices Moseley, Lang-Miers, and Murphy
Opinion By Justice Lang-Miers
        Appellants Chris Ganter d/b/a Ganter Development and PayDirt Real Estate Investment Trust f/k/a Ganter Development, L.L.C. (collectively, the Ganter Parties) appeal the trial court's entry of a default judgment and other sanctions against them and their attorney in favor of appellee Alpha Testing, Inc. The Ganter Parties contend that the trial court erred by imposing death penalty sanctions and by awarding unreasonable and excessive attorney's fees. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We affirm.
Background
        Alpha sued Ganter for breach of contract and other claims allegedly arising from a written agreement with Alpha to perform geotechnical exploration on property in Gun Barrel City, Texas. PayDirt filed a plea in intervention asserting various claims against Alpha including breach of contract. Alpha filed a motion to compel production of documents and interrogatory responses after the Ganter Parties did not produce requested documents and respond to various interrogatories during discovery. The Ganter Parties did not respond to Alpha's motion. At a hearing on the motion to compel, the Ganter Parties-represented by their counsel Lloyd Ward-agreed to respond to certain interrogatories and produce certain documents. And the court issued an “Agreed Order Granting Motion to Compel Production of Documents and Interrogatory Responses” requiring them to do so. But the Ganter Parties did not answer interrogatories and produce documents as required by that Agreed Order.
        Alpha then filed a “Motion to Hold Defendants and Their Attorney in Civil Contempt and Motion for Sanctions for Failure to Comply with the Court's Order and for Show Cause Hearing.” In its order on the motion, the court required that:

        1. Defendant Ganter, Intervenor PayDirt and Ward appear before this Court on August 31, 2010 at 3:00 p.m. and show cause why Defendant Ganter should not be held in civil contempt and sanctioned by the Court, individually and as a representative of PayDirt, for violating the April 15, 2010 Order compelling him to produce certain specified documents and to fully respond to certain specified interrogatories; and



        2. Ward appear before this Court on August 31, 2010 at 3:00 p.m. and show cause why he should not be held in civil contempt and sanctioned by the Court for his conduct as attorney for defendants for violating the April 15, 2010 Order compelling Defendants to produce certain specified documents and to fully respond to certain specified interrogatories.

        The court issued notices to show cause to Ganter, PayDirt, and Ward stating that if they “fail[ed] to appear at the time and date stated above, he/she [would] be held in contempt of Court for the reasons set forth in the attached ORDER TO SHOW CAUSE.” The record shows that the notices were served.
        None of them filed a response to the Motion for Civil Contempt and Sanctions or attended the show cause hearing. On the day of the hearing, Ward's legal assistant sent a letter to the court stating that neither “Mr. Ward nor the Defendant [Ganter] will be in attendance of [sic] the Show Cause hearing scheduled with the Court today” and that “Defendant [Ganter] and Intervenor PayDirt Real Estate Investment Trust f/k/a Ganter Development, LLC is [sic] scheduled to file bankruptcy today in the Northern District of Texas, Dallas Division.”   See Footnote 1 
        At the hearing, Alpha's attorney testified that “since the date that the Court signed the order [granting the motion to compel] on April 15, 2010, . . . Mr. Ward or his clients have not supplemented their responses to interrogatories nor have they produced any documents.” As a result, she argued that, two weeks prior to trial, Alpha had “nothing to defend [against] their claims”; did not “have their documents to support [Alpha's] claims against them”; and had “nothing to see what their defenses against [Alpha] are . . . .” Alpha requested that, “because of their blatant discovery abuse of the Court's order[,]” the court grant a default judgment in favor of Alpha, award Alpha attorney's fees, and grant a motion for sanctions against the Ganter Parties and Ward.
        At the conclusion of the hearing, the court rendered a Final Judgment granting Alpha a default judgment on its claims against the Ganter Parties and awarding Alpha attorney's fees. The court also issued an Order Granting Motion for Sanctions imposing sanctions including the default judgment and the requirement that the Ganter Parties and Ward “pay all reasonable expenses, including attorneys' fees . . . caused by their collective failure to obey the Agreed Order” and to pay “costs incurred for discovery[.]”   See Footnote 2 
        Neither the Ganter Parties nor Ward filed a motion for new trial or otherwise presented a complaint to the trial court that it had erred in rendering the Final Judgment or Sanctions Order. The Ganter Parties filed a notice of appeal; Ward did not file a notice of appeal or join the Ganter Parties' notice of appeal.
The Parties' Contentions
        The Ganter Parties argue that the trial court erred because the sanctions were excessively severe and the court failed to consider lesser sanctions and that the attorney's fees awarded were excessive and unreasonable.
        Alpha argues that the Ganter Parties waived their arguments on appeal by not complying with the rules of appellate procedure and that their “argument that the court erred in rendering the Final Judgment or Sanctions Order has been waived because they are raising this complaint for the first time on appeal.” Alpha argues that the trial court's award was just and necessary and contends that appellants' position is not clear but that, if the Ganter Parties challenge the legal or factual sufficiency of the evidence, the Ganter Parties have failed to establish that there was no evidence or insufficient evidence to support the trial court's entry of a default judgment and award of attorney's fees. Alpha also argues that Ward has waived his complaints because he is not a party to this appeal and that the court did not err in imposing sanctions on Ward.
         Preservation of Error
        We agree with Alpha that Ganter, PayDirt, and Ward failed to preserve their complaints concerning the trial court's Final Judgment and Sanctions Order for appellate review. The record establishes that neither Ganter, PayDirt, nor Ward presented any request, objection, or motion to the trial court regarding the Final Judgment or Sanctions Order prior to filing the appeal. As a result, the trial court had no opportunity to consider and rule on their complaints. See Tex. R. App. P. 33.1(a)(1) (“As a prerequisite to presenting a complaint for appellate review, the record must show that . . . the complaint was made to the trial court by a timely request, objection, or motion . . . .”); see Birnbaum v. Law Offices of G. David Westfall, P.C., 120 S.W.3d 470, 476 (Tex. App.-Dallas 2003, pet. denied); McCain v. NME Hosps., Inc., 856 S.W.2d 751, 755-56 (Tex. App.-Dallas 1993, no writ) (concluding failure to raise issues concerning sanctions-including complaint that dismissal was an inappropriate sanction-in trial court waived issues on appeal).        
        Additionally, in its brief, Alpha contends that “it is unclear exactly what points of error Appellants are making.” Alpha then describes what the Ganter Parties must establish “to the extent that they are challenging the legal sufficiency of the evidence” or “complaining about the factual sufficiency of the evidence.”
        In response, the Ganter Parties' reply brief states:

The Evidence Does Not Support The Final Judgment Or The Issuing of Sanctions.



        Appellee repeatedly professes confusion regarding the points of error made by Appellants in Appellants' Brief, but it should be clear that Appellants assert there was insufficient evidence to support the trial court's issuance of the Final Judgment and Order of Sanctions on August 31, 2010, which constituted death penalty sanctions. It is clear that the trial court plainly failed to satisfy the four-part test established by Texas courts, and because of this the default judgment should be reversed.

This passing reference to insufficient evidence for the first time in the reply brief is the only reference the Ganter Parties make to the sufficiency of the evidence anywhere in their briefs. They do not mention this in the appellants' brief; they do not state the standard of review for a sufficiency of the evidence complaint; they do not cite any legal authority addressing a sufficiency complaint; and they do not analyze how the evidence in this case was insufficient to support the imposed sanctions. Tex. R. App. P. 38.1(i) (“The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”). As a result, they have not raised an issue challenging the sufficiency of the evidence in this appeal. Consequently, we do not address the issue of whether Ward is a party to this appeal because our conclusion regarding failure to preserve error is dispositive as to all parties. See Braden v. Downey, 811 S.W.2d 922, 928 n.6 (Tex. 1991) (orig. proceeding) (declining to address whether an attorney who contests sanctions imposed in his client's cause must separately perfect an appeal); see also Sluder v. Ogden, No. 03-10-00280-CV, 2011 WL 116058, at *2 (Tex. App.-Austin Jan. 13, 2011, pet. denied) (mem. op.) (concluding court lacked jurisdiction over sanctioned attorney's appeal where attorney failed to properly file notice of appeal); Niera v. Frost Nat'l Bank, No. 04-09-00224-CV, 2010 WL 816191, at *1-2 (Tex. App.-San Antonio Mar. 10, 2010, pet. denied) (mem. op.) (same); Matbon, Inc. v. Gries, 287 S.W.3d 739, 740 (Tex. App.-Eastland 2009, no pet.) (same); Benavides v. Knapp Chevrolet, Inc., No. 01-08-00212-CV, 2009 WL 349813, at *3 (Tex. App.-Houston [1st Dist.] Feb. 12, 2009, no pet.) (mem. op) (concluding sanctioned attorney who did not file notice of appeal was not entitled to relief on appeal).
        We conclude that Ganter, PayDirt, and Ward preserved nothing for our review. We affirm.


                                                          
                                                          ELIZABETH LANG-MIERS
                                                          JUSTICE

101228F.P05

S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CHRIS GANTER D/B/A GANTER DEVELOPMENT AND PAYDIRT REAL ESTATE INVESTMENT TRUST F/K/A GANTER DEVELOPMENT, L.L.C., Appellants

No. 05-10-01228-CV

V.

ALPHA TESTING, INC., AppelleeAppeal from the County Court at Law No. 5 of Collin County, Texas. (Tr.Ct.No. 2-1150- 2009).
Opinion delivered by Justice Lang-Miers, Justices Moseley and Murphy participating.
        In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED. It is ORDERED that appellee Alpha Testing, Inc. recover its costs of this appeal from appellants Chris Ganter d/b/a Ganter Development and PayDirt Real Estate Investment Trust f/k/a Ganter Development, L.L.C.

Judgment entered July 5, 2012.



                                                          /Elizabeth Lang-Miers/
                                                          ELIZABETH LANG-MIERS
                                                          JUSTICE


Footnote 1 PayDirt did not file for bankruptcy prior to the show cause hearing; it filed for bankruptcy the following day. Ganter did not file for bankruptcy.
Footnote 2 The Sanctions Order also struck the Ganter Parties' pleadings and prohibited the Ganter Parties from conducting further discovery, supporting or opposing claims and defenses, and introducing evidence.