Opinion
No. 04-02-00526-CV.
Delivered and Filed: November 12, 2003.
Appeal from the 49th Judicial District Court, Webb County, Texas, Trial Court No. 2000-CVF-1285D1, Honorable Manuel R. Flores, Judge Presiding.
REVERSED AND REMANDED.
Sitting: Catherine STONE, Justice, Paul W. GREEN, Justice, Karen ANGELINI, Justice.
MEMORANDUM OPINION
Maria Sosa appeals the trial court's order granting summary judgment in a class action lawsuit relating to cancer insurance policies. Sosa contends that the summary judgment was improper because the motion failed to state any grounds. Sosa and Ronald Rodriguez also appeal the trial court's order directing Rodriguez to pay $25,000 in sanctions to American Heritage Life Insurance Company ("AHL"). We reverse the trial court's order granting the summary judgment and the trial court's order awarding sanctions. The cause is remanded to the trial court for further proceedings consistent with this opinion.
Summary Judgment
AHL's motion for summary judgment reads as follows:
American Heritage Life Insurance Company ("American Heritage"), by and through its undersigned counsel, respectfully files its Motion for Summary Judgment pursuant to Tex.R.Civ.P. 166a. The grounds for the Motion are set forth in the accompanying Memorandum of Law in Support of the Motion.
WHEREFORE, American Heritage prays that its Motion for Summary Judgment on all counts be granted.
AHL's Memorandum of Law that is referenced in the motion was served simultaneously with the motion and enumerated the grounds on which summary judgment should be granted.
Sosa contends that the trial court erred in relying on AHL's Memorandum of Law to provide the grounds on which summary judgment was sought. AHL responds that Sosa failed to preserve error by failing to object to this defect or, alternatively, that the procedural error was harmless.
Rule 166a(c) of the Texas Rules of Civil Procedure states that a motion for summary judgment "shall state the specific grounds therefor." Tex.R.Civ.P. 166a(c). Accordingly, a motion for summary judgment must itself state the specific grounds on which judgment is sought. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex, 1993); Benitz v. The Gould Group, 27 S.W.3d 109, 116 (Tex.App.-San Antonio 2000, no pet.). "A party cannot rely on its brief to state the grounds for summary judgment." Benitz, 27 S.W.3d at 116; see also McConnell, 858 S.W.2d at 341 (noting reliance may not be placed on briefs in determining whether grounds are expressly presented).
AHL contends that Sosa was required to object to the absence of grounds in its motion in order to preserve this issue for appellate review. This contention ignores AHL's burden in seeking summary judgment. A trial court does not have the authority to grant a summary judgment on grounds not expressly presented in the motion. Johnson v. Brewer Pritchard, P.C., 73 S.W.3d 193, 204 (Tex. 2002). "Even if the non-movant fails to except or respond, if the grounds for summary judgment are not expressly presented in the motion for summary judgment itself, the motion is legally insufficient as a matter of law." McConnell, 858 S.W.2d at 342. "Although Rule 166a(c) is an admittedly rigorous rule, it must be applied as written." McConnell, 858 S.W.2d at 341. "[W]e are not free to disregard . . . [the rule's] plain language. Nor should we revise the rule by opinion." McConnell, 858 S.W.2d at 341 (quoting Alvarado v. Farah Mfg. Co., Inc., 830 S.W.2d 911, 915 (Tex. 1992)). "Carving exceptions to this simple requirement that the motion for summary judgment state the specific grounds frustrates the purpose of Rule 166a(c). Eventually the exceptions would consume the rule, and inject uncertainty into summary judgment proceedings concerning what issues were presented for consideration." McConnell, 858 S.W.2d at 341.
Because AHL's motion for summary judgment failed to state any grounds on which summary judgment should be granted, it is insufficient as a matter of law, and the trial court erred in granting summary judgment.
Sanctions
In their second issue, Sosa and Rodriguez contend the trial court erred in granting sanctions against Rodriguez because: (1) the trial court failed to conduct an evidentiary hearing; (2) no evidence was introduced to show that Sosa and Rodriguez engaged in sanctionable conduct; (3) AHL waived its claim for sanctions based on pre-trial conduct; (4) no evidence supports the $25,000 sanction amount; and (5) Chapter 10 of the Texas Civil Practice and Remedies Code does not permit the type of sanction imposed.
AHL contends that we do not have jurisdiction to consider this issue because Sosa failed to timely and properly perfect the issue for appeal. After the trial court ordered the sanctions, Sosa amended her notice of appeal, adding a complaint regarding the sanctions order. Because the amended notice of appeal was filed before Sosa filed her brief, this issue has been properly perfected for our review, and AHL's motion to dismiss is denied. See Tex.R.App.P. 25.1(f).
• Evidentiary Hearing
Sosa and Rodriguez contend that the trial court was required to conduct an evidentiary hearing before granting the motion for sanctions. "Not every hearing called for under every rule of civil procedure, however, necessarily requires an oral hearing." Gulf Coast Inv. Corp. v. Nasa 1 Business Center, 754 S.W.2d 152, 153 (Tex. 1988). "Unless required by the express language or the context of the particular rule, the term `hearing' does not necessarily contemplate either a personal appearance before the court or an oral presentation to the court." Gulf Coast Inv. Corp., 754 S.W.2d at 153; Att'y Gen. of Tex. v. Orr, 989 S.W.2d 464, 468 n. 3 (Tex.App.-Austin 1999, no pet.). Although Rule 215(2)(b) requires "notice and hearing," the rule "does not by its express language or its context require a personal appearance before the court or an oral presentation to the court in connection with a motion for sanctions." Classic Promotions, Inc. v. Shafer, 846 S.W.2d 948, 950 (Tex.App.-Houston [14th Dist.] 1993, no writ); see also Cummings v. Cire, 74 S.W.3d 920, 924 (Tex.App.-Amarillo 2002, pet. granted); Meek v. Bishop Peterson Sharp, P.C., 919 S.W.2d 805, 809 (Tex.App.-Houston [14th Dist.] 1996, writ denied). In addition, section 10.003 of the Texas Civil Practice and Remedies Code only requires notice and an opportunity to respond to a motion seeking sanctions for frivolous pleadings and motions. Tex. Civ. Prac. Rem. Code Ann. § 10.003 (Vernon 2002). Section 10.003 does not require a hearing on the motion. See id. In this case, the trial court afforded the parties the opportunity to appear before the court but elected not to conduct an evidentiary hearing. The trial court did not err in choosing not to conduct an evidentiary hearing because such a hearing is not required by Rule 215 or chapter 10.
• Authority to Order Payment of Attorneys' Expenses
Sosa and Rodriguez contend that the trial court was not authorized to assess "a penalty against Appellant's trial counsel, payable to AHL, based on Civil Practice and Remedies Code Chapter 10." AHL, however, moved for sanctions under chapter 10 and for violations of the discovery rules. Rule 215.2(b) expressly permits the trial court to issue "an order charging all or any portion of the expenses of discovery against the disobedient party or the attorney advising him." Tex.R.Civ.P. 214.2(b)(2). Furthermore, section 10.004 permits a trial court to order a party to pay the other party the amount of expenses incurred by the other party because of the filing of the frivolous pleading or motion, including reasonable attorney's fees. Tex. Civ. Prac. Rem. Code Ann. § 10.004(c)(3) (Vernon 2002). Since AHL would be charged for the expenses incurred by its attorney in defending against the frivolous pleadings and motion, the monetary sanction was proper under chapter 10.
• Sanctionable Conduct
Sosa and Rodriguez further assert that the grounds enumerated by the trial court do not rise to the level of sanctionable conduct. We review a trial court's ruling on sanctions under an abuse of discretion standard. Koslow's v. Mackie, 796 S.W.2d 700, 704 (Tex. 1990); Univ. of Tex. at Arlington v. Bishop, 997 S.W.2d 350, 357 (Tex.App.-Fort Worth 1999, pet. denied). To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
In this case, the trial court's order states that the trial court considered the motion for sanctions, the response, the arguments and testimony of counsel, and the exhibits presented during the hearing. The order further states that the trial court reviewed the file in the case.
After reviewing the record, we cannot conclude that the trial court abused its discretion in finding sanctionable conduct. Sosa and Rodriguez filed a claim for lost benefits even though neither Sosa nor her family members had ever been diagnosed with cancer or made a claim under any cancer policy. In her summary judgment affidavit and pleadings, Sosa stated that specific fraudulent representations were made to her to induce her to switch policies; however, in her deposition, Sosa stated that she did not remember any such statements being made. Sosa also alleged that AHL did not require her to sign a notice of replacement when she switched carriers; however, the record contains the notice Sosa signed. Finally, after Sosa responded to requests for interrogatories and documents, AHL filed a motion to compel, contending that Sosa's responses were incomplete. At the hearing on the motion to compel, Rodriguez informed the court that he would withdraw certain objections and fully answer the interrogatories. Subsequent to the hearing, amended responses were filed; however, when Sosa was asked whether the responses were her sworn testimony at her deposition, Rodriguez instructed Sosa not to answer the question. Based on the foregoing, the trial court did not abuse its discretion in finding that Sosa and Rodriguez had engaged in sanctionable conduct.
• Waiver and Amount of Sanction
Sosa and Rodriguez contend that AHL waived its claim for sanctions based on pre-trial conduct by not raising it until the entry of a final judgment and that the record does not support the amount of the sanction. In Remington Arms Co. v. Caldwell, the Texas Supreme Court expressly held that the "failure to obtain a pretrial ruling on discovery disputes that exist before commencement of trial constitutes a waiver of any claim for sanctions based on that conduct." 850 S.W.2d 167, 170 (Tex. 1993); see also White v. Cole, 880 S.W.2d 292, 296 (Tex.App.-Beaumont 1994, writ denied) (noting appellant must obtain a pre-trial ruling on any discovery dispute existing before commencement of summary judgment proceedings to avoid waiver under Remington). In this case, AHL moved for sanctions for several categories of alleged misconduct, including: (1) discovery abuses involving Sosa's failure to fully respond to interrogatories and requests for documents; (2) frivolous/baseless litigation; (3) fraudulent affidavits to support response to motion for summary judgment; (4) filing of false petition; and (5) avoidance of court order. The trial court based the sanctions award on the findings of fact and conclusions of law included in its order. The findings of fact and conclusions of law address four categories of conduct: (1) groundless litigation; (2) refusal to answer interrogatories; (3) fraudulent affidavit; and (4) improper pleadings/motions.
With regard to Sosa's answers to the interrogatories, the trial court found that Rodriguez precluded Sosa from testifying at her deposition that the amended responses to interrogatories were her sworn testimony. The misconduct involving the interrogatories and statements made during Sosa's deposition was known to AHL at the time the deposition was taken on October 23, 2001. AHL did not file its motion for summary judgment until January 31, 2002, which gave AHL three months to file a pre-trial motion for sanctions based on the pre-trial discovery dispute over the adequacy of Sosa's responses to interrogatories. Furthermore, AHL did not move for sanctions until September 9, 2002, over six months after the summary judgment had been granted. Accordingly, AHL waived its claim for sanctions based on the conduct involving the interrogatories by failing to obtain a pretrial ruling. Remington, 850 S.W.2d at 170.
As previously noted, the trial court based its sanction award on four broad categories of misconduct; however, AHL waived its right to receive sanctions for one of those categories. We do not know what effect, if any, the inability to include sanctions for discovery abuse would have had on the amount of sanctions awarded by the trial court. As an appellate court, we are not permitted to make factual findings; therefore, we cannot simply find that $25,000 is an appropriate sanction for the remaining categories of misconduct. Bellfonte Underwriters Ins. Co. v. Brown, 704 S.W.2d 742, 744-45 (Tex. 1986). Furthermore, we cannot affirm the trial court's order by predicting what the trial court might have awarded if only the three categories of misconduct had been presented. In re Acevedo, 956 S.W.2d 770, 776 (Tex.App.-San Antonio 1997, orig. proceeding) (noting appellate court unable to base conclusion on a hypothetically predicted result as to the finding the trial judge could have made). For these reasons, we reverse the trial court's sanctions order and remand the issue to the trial court for reconsideration consistent with this opinion.
Conclusion
The trial court's summary judgment and sanctions order are reversed, and the cause is remanded to the trial court for further proceedings consistent with this opinion.