Court of Appeals of Texas, Seventh District, Amarillo
WILLIAM A. BREWER III, APPELLANT
LENNOX HEARTH PRODUCTS, LLC; TURNER & WITT PLUMBING, INC.; STRONG CUSTOM BUILDERS, LLC; THERMO DYNAMIC INSULATION, LLC; STATE FARM LLOYDS INSURANCE COMPANY; KEN TEEL; BECKY TEEL; ROSS RUSHING; AND MEG RUSHING, APPELLEES
Appeal from the 72nd District Court Lubbock County, Texas
Trial Court No. 2012-504, 105; Honorable Ruben G. Reyes,
QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Patrick A. Pirtle, Justice.
right of trial by jury shall remain inviolate.
Constitution, Article I, Sec. 15
simplest terms, this case involves the issue of whether a
trial judge abused his discretion in ordering sanctions
against an attorney in a pending civil case. At a more
profound level, this case involves the right of a trial court
to protect the integrity of the judicial system and to hold
"inviolate" the right to trial by jury. For the
reasons that follow, we affirm the decision of the trial
court to impose sanctions in this case.
William A. Brewer III, an attorney who represented a
defendant in a civil proceeding pending in the 72nd District
Court, appeals a sanctions order entered by the presiding
judge, the Honorable Ruben G. Reyes, on February 19, 2016. In
the underlying civil proceeding, Brewer and his law firm,
Bickel & Brewer,  represented Titeflex Corporation, Gastite
Division, as the primary defendant in a multi-million dollar
products liability/wrongful death cause of action arising
from an explosion and fire allegedly caused by a defective or
unreasonably unsafe corrugated stainless steel tubing
("CSST") product manufactured by Titeflex. The
Plaintiffs and Appellees, Ken Teel, Becky Teel, Ross Rushing,
Meg Rushing, and State Farm Lloyds Insurance Company, filed
suit on October 3, 2012, alleging that a catastrophic fire
claimed the life of the Teels' son while at the
Rushings' residence. In addition to Titeflex, the
Plaintiffs named Appellee, Turner & Witt Plumbing, Inc.,
among others, as a Defendant. During the course of the
proceedings, third-party claims were subsequently made
against Appellees, Thermo Dynamic Insulation, LLC, Strong
Custom Builders, LLC, and Lennox Hearth Products, LLC.
result of this unfortunate explosion, the Chief Building
Official and Fire Marshal of the City of Lubbock issued a
moratorium concerning the use of certain CSST products
pending further investigation. The moratorium led to
significant media coverage. In addition to the
incident-generated media coverage, Plaintiffs' counsel
engaged in multiple public relations activities, including a
website about the alleged dangers of CSST and a survey of
Lubbock County residents regarding public awareness of the
existence of CSST gas plumbing. Similarly, Bickel &
Brewer engaged Public Opinion Strategies, a public opinion
consulting firm, to "conduct a random independent poll
in regard to certain attitudes and opinions that would likely
be prevalent among homeowners in Lubbock, Texas."
Pursuant to that engagement, Public Opinion Strategies
developed a draft of proposed survey questions which Bickel
& Brewer attorneys revised. Brewer himself personally
approved the final draft of the survey questions.
suggestion of Public Opinion Strategies, Brewer agreed on a
survey of 300 participants. To complete 300 surveys, Public
Opinion Strategies ordered a database of approximately 20,
000 names and phone numbers of Lubbock County residents over
age eighteen and engaged Survey Sampling International, LLC,
(hereinafter "SSI") to make phone calls to randomly
selected phone numbers from that database. No one at Bickel
& Brewer had any input in selecting the inclusion or
exclusion of any name or phone number in the database.
was scheduled to commence on June 30, 2014. Approximately six
weeks earlier, over a two-day period ending May 22, SSI
conducted randomly selected computer-assisted telephone
interviews, using the survey questionnaire approved by
Brewer. The questions in the survey were randomized so that
different participants would hear the questions in a
different order. It is not known how many people in the
database were contacted in order to obtain the requested 300
days after the polling was completed, Bickel & Brewer
attorneys filed an ethics complaint against two City of
Lubbock officials who had been designated as testifying
witnesses. That same day, they had copies of the ethics
complaint hand-delivered to members of the Lubbock City
Council and released to the media.
6, 2014, the Plaintiffs filed a motion seeking
"emergency protection" and sanctions as to Bickel
& Brewer, alleging the telephone survey constituted an
improper trial preparation tactic designed to (1) intimidate
witnesses, (2) "infect and contaminate the jury pool,
" and (3) secure a delay in the trial date. As a basis
for that relief, the motion alleged that certain third
parties had been contacted by SSI during the survey process
in an "overt attempt to convince them who to blame for
CSST failures in homes, in and around Lubbock,
Texas." The motion alleged that when initially
asked by Plaintiffs' counsel as to whether polling was
being conducted in Lubbock concerning the pending litigation,
Brewer denied any knowledge of the poll.
9, 2014, in anticipation of the scheduled June 30 trial date,
the trial court was conducting a pretrial hearing on the
issue of disqualifying various designated witnesses. During
that hearing, Plaintiffs' counsel raised the issue of the
telephone survey. After some discussion regarding the
necessity and availability of witnesses, the hearing was
recessed until the next day. On June 10, after further
discussion with counsel regarding the survey and the
circumstances surrounding it, the trial judge referred to the
matter as "disturbing." On June 11, additional
defendants and designated responsible third-party defendants
filed similar motions seeking sanctions against Bickel &
Brewer. Further hearings were held on June 11, 16, 17, and
27. Finally, on June 27, in open court, Titeflex discharged
Bickel & Brewer, citing the sanctions motions as the
reason. As a result of this development, trial did not
commence as planned on June 30.
trial court did, however, set a hearing on the sanctions
motions for September 29, 2014. On September 17, Bickel &
Brewer filed a verified motion for continuance seeking
additional time to gather admissible evidence from third
parties in support of its opposition to the motions. Attached
to Bickel & Brewer's motion was the verification of
James S. Renard, a Bickel & Brewer attorney, who stated
that he had "read the facts set forth in the foregoing
Motion to Continue Sanctions Hearing . . . which are true and
correct based upon his personal knowledge and reasonable
inquiry." The next day, the trial court denied Bickel
& Brewer's motion for continuance and the sanctions
hearing commenced as scheduled, picking up where it had ended
on June 17. The trial court heard four additional days of
testimony from fact and expert witnesses and it received
documentary evidence on the matter of sanctions. The
sanctions hearing concluded on October 2, and the trial court
took the matter under advisement.
months later, on January 22, 2016, after taking into
consideration "the motions, argument and briefing of
counsel as well as the evidence presented - including but not
limited to the conflicting testimony and credibility of the
witnesses, " the trial court issued a letter ruling
imposing sanctions against Brewer, individually, while
imposing no sanctions against the firm of Bickel &
Brewer. The letter ruling ordered that Appellees recover from
Brewer fees and expenses totaling $133, 415.27, plus
contingent fees and expenses totaling $43,
590.00. In addition, the trial court ordered
Brewer to successfully complete ten hours of continuing legal
education on the topic of ethics. In the meantime, the merits
of the underlying case were settled by all parties, and on
February 19, 2016, the trial court entered its Order on
Sanctions Motions . . . and Final Order of Dismissal,
dismissing all claims, save and except the sanctions imposed
against Brewer. A notice of appeal regarding the sanctions
order was timely filed and this appeal followed.
seven issues, Brewer contends the trial court abused its
discretion by: (1) awarding sanctions for conducting a survey
when, as a matter of law, the conduct of a survey or poll to
test "actual or hypothetical messages and themes in
connection with a potential or pending case" is not a
bad faith abuse of the judicial process; (2) basing a
bad-faith-finding on mere gross negligence; (3) concluding,
as a matter of law or fact, that he acted in bad faith; (4)
imposing sanctions without a finding that the survey
"significantly interfered" with the court's
legitimate exercise of a traditional core function (or,
alternatively, that the survey significantly interfered with
the parties' rights to a trial by jury); (5) imposing
sanctions that were more severe than necessary and just; (6)
failing to consider an affidavit tendered; and, (7) denying
his motion for continuance. Appellees and various amicus
curie contend the trial court did not abuse its
discretion and the imposition of sanctions was necessary to
preserve, protect, and "hold inviolate" the right
to trial by jury. An amicus curie brief was also
filed in support of Brewer's contention that the survey
in question was not a "push poll."
Brewer contends there was no evidence to support the required
legal standard of intentional misconduct and that there was
no evidence showing that, at the time of the survey, he acted
with any bad faith or mens rea, as required by law.
He further contends that lawyers cannot and should not be
afraid to represent their clients zealously and that the
sanctions order against him has a chilling effect on that
duty. Appellees respond by arguing that the sanctions order
is justified by the record and by the circumstances
surrounding Brewer's participation in the telephone
survey in question.
court has the inherent power to impose sanctions against an
attorney and that power is derived, in part, from Article II
of the Texas Constitution. Tex. Const. art. II, § 1
(recognizing that each branch of government-Legislative,
Executive, and Judicial- has certain powers "properly
attached" to that branch). In that regard, it has long
been held that a trial court has the "inherent
power" to sanction bad faith conduct of an attorney
committed during the course of pending litigation that
interferes with the effective administration of justice or
the preservation of the court's dignity and integrity.
Eichelberger v. Eichelberger, 582 S.W.2d 395, 398
(Tex. 1979); Onwuteaka v. Gill, 908 S.W.2d 276, 280
(Tex. App.-Houston [1st Dist.] 1995, no writ). As the Texas
Supreme Court noted in Public Utility Com. v. Cofer,
754 S.W.2d 121, 124 (Tex. 1988), "[w]e can say without
hesitation that in our adversary system, a court has not only
the power but the duty to insure that judicial
proceedings remain truly adversary in nature." (Emphasis
in original). Courts may not, however, invoke this inherent
power "without some evidence and factual findings that
the conduct complained of significantly interfered with the
court's legitimate exercise of one of its traditional
core functions." Howell v. Tex. Workers' Comp.
Comm'n, 143 S.W.3d 416, 447 (Tex. App.-Austin 2004,
pet. denied) (citing Kennedy v. Kennedy, 125 S.W.3d
14, 19 (Tex. App.-Austin 2002, pet. denied)). Therefore, the
court's "inherent power to sanction exists only to
the extent necessary to deter, alleviate, and counteract bad
faith abuse of the judicial process" affecting a core
function of the court. Onwuteaka, 908 S.W.2d at 280.
applying that standard, an appellate court reviews a trial
court's imposition of sanctions under an abuse of
discretion standard. See Cire v. Cummings, 134
S.W.3d 835, 838-39 (Tex. 2004) (reinstating the trial
court's sanctions order, finding that order was not an
abuse of discretion); In re Bennett, 960 S.W.2d 35,
40 (Tex. 1997) (same). See also Low v. Henry, 221
S.W.3d 609, 621-22 (Tex. 2007) (affirming the trial
court's imposition of sanctions pursuant to section
10.001(3) of the Texas Civil Practice and Remedies Code but
finding an abuse of discretion in not more specifically
identifying a sufficient basis to support the amount of
sanctions); Lawrence v. Kohl, 853 S.W.2d 697, 700-01
(Tex. App.-Houston [1st Dist.] 1993, no writ) (finding
imposition of sanctions to be neither arbitrary or
unreasonable in light of the circumstances). Under this
standard, a trial court does not abuse its discretion in
levying sanctions if some evidence supports its decision.
Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97
an abuse of discretion standard, "an appellate court may
reverse the trial court's ruling only if the trial court
acted without reference to any guiding rules and principles,
such that its ruling is arbitrary and unreasonable."
Low, 221 S.W.3d at 614 (citing Cire, 134
S.W.3d at 838-39); Am. Flood Research, Inc. v.
Jones, 192 S.W.3d 581, 583 (Tex. 2006); Downer v.
Aquamarine Operators, Inc. 701 S.W.2d 238,
241-42 (Tex. 1985). In deciding whether the trial court
abused its discretion, we are cautioned to "bear in mind
that the mere fact that a trial judge may decide a matter
within his discretionary authority in a different manner than
an appellate judge in a similar circumstance does not
demonstrate that an abuse of discretion has occurred."
City of Dallas v. Ormsby, 904 S.W.2d 707, 710 (Tex.
App.-Amarillo 1995, writ denied).
evaluating the propriety of a sanctions order, an appellate
court must also remain mindful that a sanctions order
involves two separate judicial decisions: (1) whether to
impose a sanction and (2) what sanction to impose.
TransAmerican Nat'l Gas Corp. v. Powell, 811
S.W.2d 913, 917 (Tex. 1991). Therefore, in conducting our
review of a sanctions order, we must conduct a two-part
analysis by determining whether: (1) there is a direct
relationship between the offensive conduct and the sanction
imposed and (2) the sanction imposed is reasonable and not
other words, any sanction imposed should be directly related
to offensive conduct, be no more severe than required to
satisfy legitimate purposes, and the "punishment should
fit the crime." Chrysler Corp. v. Blackmon, 841
S.W.2d 844, 849 (Tex. 1992). This means that a trial court
must consider less stringent sanctions first to determine
whether lesser sanctions will fully promote compliance,
deterrence, and discourage further abuse. Id.;
In re J.V.G., No. 09-06-00015-CV, 2007 Tex.App.
LEXIS 5426, at *11 (Tex. App.-Beaumont July 12, 2007, no
pet.) (mem. op.) (holding that "the fact that
sanctionable conduct does not bear the label . . . of having
'interfered with the core functions of the trial court,
' does not indicate an abuse of discretion so long as the
record indicates a direct relationship between the improper
conduct and the sanction imposed, and that a lesser sanction
would have been insufficient to serve its punitive
of fact and conclusions of law from a sanctions hearing are
not the same as those contemplated by Rules 296 and 297 of
the Rules of Civil Procedure; United States Fidelity
& Guaranty Co. v. Rossa, 830 S.W.2d 668, 672 (Tex.
App.-Waco 1992, writ denied), and such findings should not be
given the same weight as findings made under those rules.
Goff v. Branch, 821 S.W.2d 732, 738 (Tex. App.-San
Antonio 1992, writ denied). During an appellate review, the
entire record, including the evidence, arguments of counsel,
written discovery on file, and the circumstances surrounding
the party's sanctionable conduct, must be examined.
Rossa, 830 S.W.2d at 672; Abcon Paving, Inc. v.
Crissup, 820 S.W.2d 951, 954 (Tex. App.-Fort Worth 1991,
no writ). Thus, we are not limited solely to a review of the
"sufficiency of the evidence" to support the
findings made or implied; rather, we make an independent
inquiry of the entire record to determine whether the court
abused its discretion in imposing the sanction in question.
See Rossa, 830 S.W.2d at 672. See also Otis
Elevator v. Parmelee, 850 S.W.2d 179, 181 (Tex. 1993);
Chrysler Corp., 841 S.W.2d at 852-53.
One-Surveys are Not a Bad Faith Abuse of Judicial Process
first issue, Brewer contends the trial court abused its
discretion by sanctioning him because the use of a pretrial
survey is not a "bad faith" abuse of the judicial
process since "[t]here is no rule, ethics opinion, case,
disciplinary rule, or other authority that prohibits the type
of survey conducted in this case." He posits that
because the use of surveys is not specifically prohibited,
such surveys can be ethically administered, and their use is
common, or at least generally accepted, rendering the trial
court's imposition of sanctions ipso facto an
abuse of discretion. Brewer contends that the absence of
express authority directly prohibiting this conduct operates
as implied permission to conduct such surveys. This is a
logical fallacy. Such an argument fails to account for the
inherent power of the trial court to oversee the trial of a
cause of action or the interplay of the rules of professional
conduct and ethics on unforeseen efforts to impact the
outcome of a trial or to influence a witness. In that regard,
Texas appellate courts have consistently held that a trial
court has the inherent power to sanction litigants and
attorneys whose abusive conduct affects a core function of
the judiciary and this power exists regardless of whether the
conduct is specifically proscribed by rule or statute.
Davis v. Rupe, 307 S.W.3d 528, 530 (Tex. App.-Dallas
2010, no pet.) (decision reached on appeal of a different
cause number in Ritchie v. Rupe, 339 S.W.3d 275
(Tex. App.-Dallas 2011), rev'd on other grounds,
443 S.W.3d 856 (Tex. 2014)).
no doubt, pretrial surveys have been generally accepted as a
legitimate method for testing actual or hypothetical
arguments relating to a pending case,  Brewer assumes
far too much in his categorical statement that the type of
survey conducted in this case is not prohibited, at least
inferentially, by case law, statute, or constitutional
authority. In support of his argument, Brewer cites three
cases: (1) Primrose Operating Co. v. Jones, 102
S.W.3d 188 (Tex. App.-Amarillo 2002, pet. denied) (involving
the use of a mock trial), (2) United States v.
Collins, 972 F.2d 1385 (5th Cir. 1992) (involving the
use of a telephone survey), and (3) First Heights
Bank, FSB v. Gutierrez, 852 S.W.2d 596 (Tex.
App.-Corpus Christi 1993, writ denied) (recognizing that
pretrial surveys are commonly conducted to support a motion
to transfer venue).
Primrose, this court gave tacit approval to the use
of a mock trial conducted shortly before jury selection in a
personal injury lawsuit. In that case, the plaintiff's
attorney assembled twelve individuals from a small close-knit
community with a total population of just over 300 for the
purpose of questioning community attitudes regarding various
issues to be addressed at trial. The attorney first asked the
participants if any of them had been summoned for jury duty
in the upcoming case and one person was excluded when he
indicated that he had been summoned. The attorney then
summarized the evidence he expected each party to present.
After the meeting, which lasted approximately two hours, the
group opined on the apportionment of responsibility and
damages. When the defendant's learned about the meeting,
they made a pretrial motion for mistrial on the basis that
the mock trial had tainted the entire venire. The trial court
did not rule on the motion immediately. Instead, it deferred
a ruling pending completion of the voir dire examination.
During jury questioning, the effect of the mock trial was
thoroughly examined by all parties, and at the conclusion of
that phase of the trial, the motion for mistrial was denied.
The issue on appeal was whether the trial court erred in
denying the motion for mistrial. Under the facts of that
case, this court held, "[w]hether [the plaintiff's]
attorneys sought to influence members of the venire by
communicating with non-members is a fact question for
resolution by the trial court." Primrose, 102
S.W.3d at 194. The trial court's decision to deny the
motion for mistrial was affirmed because, under the
circumstances of that case, it could not be said that the
trial court's decision was an abuse of discretion.
also relies on United States v. Collins to support
his argument that a pretrial survey of prospective jurors was
permissible per se because it did not compromise the
integrity of the jury selection process. In Collins,
a federal judge was charged with bribery, obstruction of
justice, and conspiracy relating to allegations that a
criminal defendant had paid the judge and his associate $100,
000 in exchange for a lenient sentence. Prior to trial, the
prosecution commissioned a telephone survey of 457 persons in
the Eastern District of Louisiana, asking them various
questions relating to the upcoming trial. The defendants
found out about the survey and reported it to the district
court, which in turn ordered the prosecution to cease all
polling and to turn over the results of the poll to the
court. After reviewing the polling material and the results
collected, the court concluded that the integrity of the jury
selection process had not been compromised.
to Brewer's contention, this decision does not stand for
the general proposition that "telephone surveys
conducted in the trial venue do not endanger the impartiality
of a potential jury venire and do not violate due process . .
. ." To the contrary, it stands for the proposition that
such surveys are subject to review by the presiding court in
order to determine whether anything was done to compromise
the integrity of the jury selection process.
Collins, 972 F.2d. at 1398.
in Gutierrez, the propriety of a pretrial survey
conducted for purposes of supporting a change of venue was
never in issue. In that case, surveys were conducted in order
to gather information supporting a pretrial change of venue.
Gutierrez, 852 S.W.2d at 620-21. No allegation was
ever made that the survey itself compromised the jury pool or
the integrity of the jury selection process. Here again, just
because a survey might have been properly used for one
purpose in one case does not make the use of all surveys
proper in every case ipso facto.
common denominator in Primrose and Collins
is that the appellate court affirmed the trial court's
determination that the jury selection process had not been
compromised. Neither of those cases involved the propriety of
the trial court's decision to impose sanctions for such
pretrial conduct. Here, however, we are faced with a
situation where the trial court, after reviewing the
evidence, came to the distinct conclusion that the survey had
been a conscious attempt by the surveying party to influence
the jury pool-a finding patently missing in both
Primrose and Collins.
should be noted that Judge Reyes, in issuing his letter
ruling, specifically stated that he was "not commenting
on the broader issue of lawyers utilizing polling, focus
groups or mock trials . . . ." The sanctions order
entered in this case speaks only to the survey used in this
particular case and the manner of its actual
"implementation and utilization" in the case
pending before the court. Because the trial court did not
base its sanction order on the mere fact that a telephone
survey had been used, issue one is overruled.
Two and Three-Bad Faith Requirement for Sanctions
second issue, Brewer contends the trial court erred by basing
its "bad faith" finding on mere gross negligence;
and, by his third issue he contends the trial court erred by
concluding that he acted in bad faith.
courts have inherent power to impose sanctions for bad faith
abuse of the judicial process even when the targeted conduct
is not expressly covered by a rule or statute."
Ezeoke v. Tracy, 349 S.W.3d 679, 685 (Tex.
App.-Houston [14th Dist.] 2011, no pet.) (citing
Eichelberger, 582 S.W.2d at 398). This inherent
power exists to the extent necessary to deter, alleviate, and
counteract the bad faith abuse of the judicial process, such
as interference with the traditional core functions of the
court. Ezeoke, 349 S.W.3d at 685 (citing
McWhorter v. Sheller, 993 S.W.2d 781, 788-89 (Tex.
App.-Houston [14th Dist.] 1999, pet. denied)).
trial court to exercise its inherent power to sanction an
attorney, the offending conduct must have been an intentional
act committed in bad faith-mere negligence, inadvertence, or
poor judgment is not enough. See McWhorter, 993
S.W.2d at 789. See also Onwuteaka, 908 S.W.2d at 280
(reversing sanctions order where the evidence supported a
finding that the offending conduct might have been negligent
but not supporting a finding of bad faith). A court's
"inherent power to sanction exists only to the extent
necessary to deter, alleviate, and counteract bad faith abuse
of the judicial process, such as the significant interference
with core judicial functions . . . ." Id.
"An attorney who makes a reasonable decision in the
handling of a case may not be held liable if the decision
later proves to be imperfect." Cosgrove v.
Grimes, 774 S.W.2d 662, 664-65 (Tex. 1989) (stating that
the appropriate standard in a legal malpractice case is the
"objective exercise of professional judgment" based
on a "reasonably prudent attorney, " not a
subjective standard; disapproving cases recognizing an
exception to attorney negligence based on the
"subjective good faith of an attorney").
even in the absence of applicable case law, statute, or
constitutional provision prohibiting the use of pretrial
telephone surveys, a court has the inherent authority to
sanction a party, or his attorney, for the bad faith use of
such a survey if it finds that to do so will aid in the
exercise of its jurisdiction, the administration of justice,
the preservation of judicial independence, or the integrity
of the judicial process. See In re Bennett, 960
S.W.2d at 40 (citing Eichelberger, 582 S.W.2d at
398); Onwuteaka, 908 S.W.2d at 280. See also
Howell, 143 S.W.3d at 451 (affirming the imposition of
sanctions under Rule 13 of the Texas Rules of Civil Procedure
but reversing for recalculation). A trial court's
inherent power to neutralize inappropriate conduct exists to
the extent, and only to the extent, that it is
"necessary to deter, alleviate, and counteract the bad