Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

NRG & Associates, LLC v. Service Transfer, Inc.

Court of Appeals of Texas, Fifth District, Dallas

December 21, 2017


         On Appeal from the County Court at Law No. 5 Dallas County, Texas Trial Court Cause No. CC-16-01376-E

          Before Justices Lang-Miers, Brown, and Boatright



         This appeal arises from a final judgment assessing a "death penalty" sanction against a defendant who failed to appear at a court-ordered mediation. The appellant, NRG & Associates, LLC (NRG), contends that the trial court abused its discretion in imposing the sanction. We reverse the judgment and remand for further proceedings consistent with this opinion.


         The appellee, Service Transfer, Inc. (Service Transfer) sued NRG in March of 2016 for breach of contract. NRG appeared in the suit pro se through an answer signed by its managing member, who is not a lawyer.[1] On May 2, 2016, the trial court signed a mediation order that appointed Dallas County Dispute Resolution Center (DCDRC) as the mediator and that required the parties to participate in a mediation to occur by August 14, 2016.[2] The mediation order warned that "[f]ailure or refusal to attend the mediation as scheduled may result in the imposition of sanctions, as permitted by law, which may include dismissal or default judgment." On the next day after the trial court signed the mediation order, Service Transfer filed a motion to strike NRG's answer on the basis that the answer was signed by a non-attorney. The motion requested that "[NRG] be given a specified period of time in which to re-file its [a]nswer with counsel designated to represent it in this action." The trial court never ruled on Service Transfer's motion to strike.

         DCDRC thereafter sent an e-mail to Service Transfer's counsel advising that the mediation was scheduled for June 21, 2016.[3] The e-mail also stated: "NO GOOD CONTACT FOR DEFENDANT[;] SENDING CERTIFIED LETTER TO DEFENDANT." The record contains no certificate of mailing nor any return receipt that would reflect when the letter was sent or when NRG received it.

         Service Transfer and its counsel attended the mediation, but NRG did not attend. Service Transfer filed a motion for sanctions based on NRG's failure to attend the mediation. The motion was verified by counsel and contains the following summary of the mediation:

A representative from the DCDRC indicated that [NRG] ha[d] been notified of the mediation and placed a call to [NRG's] offices to inquire as to [NRG's] attendance at mediation. The representative of DCDRC left a message as he received only an answering machine. . . . [Service Transfer's] counsel and its representative waited for 30 minutes to see if anyone representing [NRG] would appear. No one from [NRG] appeared for the Court ordered mediation. Nor did [NRG] at any time contact the DCDRC about the mediation or [NRG's] inability to attend. To [Service Transfer's] knowledge the voice message left by a representative of the DCDRC with [NRG] has not been returned.

         The motion for sanctions requested that the trial court (i) award Service Transfer its attorney's fees and costs incurred in attending the mediation, (ii) strike NRG's answer, and (iii) render a default judgment against NRG in the amount of Service Transfer's alleged damages, fees, and costs.

         On August 26, 2016, the trial court held a hearing on Service Transfer's sanctions motion. NRG did not attend the hearing. The record contains no reporter's record from the hearing.[4]Following the hearing, the trial court on August 26 signed an order granting Service Transfer's motion for sanctions and separately rendered judgment in favor of Service Transfer. The sanctions order awarded Service Transfer $3, 184.85 in attorney's fees and other expenses incurred in attending the mediation. The order also provided that, as an additional sanction, judgment would be rendered in favor of Service Transfer against NRG in "[a] form of Final Judgment [to] be entered separately by the Court." The separately-rendered judgment stated that the trial court had "sanctioned [NRG] for its failure to attend [c]ourt ordered mediation." The judgment incorporated the expenses and fees awarded in the sanctions order and also awarded the "Principal Amount" of $10, 242.48 that Service Transfer's original petition had alleged it was owed by NRG. The judgment awarded additional sums for pre-judgment interest, attorney's fees, and other expenses.

         NRG thereafter retained counsel who timely filed a motion for new trial. [5] On November 4, 2016, the trial court held a hearing on the motion. The court at the hearing explained that its rendition of final judgment as a sanction against NRG was based on the court's conclusion that no lesser sanctions were available. Specifically, the court concluded that NRG's refusal to retain counsel had stalled the case given that NRG, a corporation, could not appear in court without counsel. Under this circumstance, the court determined that no lesser sanction was available to move the case forward other than to order the parties to a mediation so that NRG would have an opportunity to resolve the dispute without having to incur the expense of hiring counsel.[6] The court explained that to ensure the parties' attendance at the mediation, the mediation order had warned that a party's failure to attend could result in a dismissal or a default judgment against it. The court denied NRG's motion for new trial on the record.

         This ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.