Thursday, July 12, 2007

No-Show Lawyer Sanctioned

Ninth Court of Appeals Upholds Sanctions Imposed on Attorney Who Failed to Appear for Mediation and Trial

In the Interest of J.V.G, No. 09-06-00015-CV (Tex.App.- Beaumont)(Opinion by Justice Kreger)
Disposition: Judgment of 221st District Court of Montgomery County affirmed

On Appeal from the 221st District Court
Montgomery County, Texas
Trial Cause No. 98-12-04437-CV


This is an appeal from an order in a suit affecting the parent-child relationship. Petitioner, Vilma Estela Stibolt ("Vilma"), sought to modify her divorce decree, which was final in 2000, apparently to provide her greater custodial access to her child, J.V.G., as appellant/respondent, Constantino Gaeta ("Constantino"), was initially named sole managing conservator of J.V.G. Trial counsel for Vilma was appellee, Laura D. Dale, while Constantino was represented by appellant, M. Elena Navarro.

A jury trial resulted in both Constantino and Vilma being named joint managing conservators, with Constantino retaining the right to designate the primary residence of J.V.G. Several months later, the trial court ruled on two remaining issues: attorney's fees and sanctions. Specifically, the trial court awarded Vilma attorney's fees in the amount of $40,000, with interest at 5%. The trial court also found certain pretrial conduct by Constantino's attorney, Ms. Navarro, necessitated the awarding of sanctions to Vilma's counsel, Ms. Dale, in the amount of $5,000, with interest at 10%.

Only Constantino and Ms. Navarro have perfected appeal. Constantino has not filed a brief or given reasonable explanation for such failure, nor attempted to pursue his appeal any further. See Tex. R. App. P. 38.8(a)(1); Elizondo v. City of San Antonio, 975 S.W.2d 61, 63 (Tex. App.--San Antonio 1998, no pet.). Ms. Navarro has raised six issues for our consideration limited to the propriety of the trial court's imposition of sanctions and the award to Ms. Dale.

We begin with Ms. Navarro's sixth issue as it raises concerns of lack of trial court jurisdiction to enter the sanctions order and procedural default on the part of Ms. Dale in relation to the timing of the trial court's sanctions ruling. Initially, Ms. Navarro contends that because the May 17, 2005, modification order was a final judgment, the sanctions order, signed November 23, 2005, is void as being outside the period of the trial court's plenary powers. However, appearing within the modification order is the following language: "IT IS ORDERED that the attorney's fees and sanctions in this matter have been reserved and will be heard at a later date to be determined by the Court." An order or judgment is not final for purposes of appeal unless it actually disposes of every pending claim and party or unless it clearly and unequivocally states that it finally disposes of all claims and all parties. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001). Although the order also contains language commonly referred to as a "Mother Hubbard Clause," the trial court clearly intended for the order not to be final for purposes of appeal by its explicit reservation of "attorney's fees and sanctions in this matter." See id. at 200 ("The intent to finally dispose of the case must be unequivocally expressed in the words of the order itself.").

Further support for the interlocutory status of the May 17, 2005, modification order appears when we examine the record before us, as Lehmann instructs. See id. at 205-06 ("To determine whether an order disposes of all pending claims and parties, it may of course be necessary for the appellate court to look to the record in the case.").

During the September 8, 2005, sanctions hearing, counsel for Ms. Navarro argued that because all of Ms. Navarro's conduct in question took place prior to trial, Ms. Dale waived any complaint for sanctions by failing to secure a ruling prior to commencement of the jury trial, citing as authority Remington Arms Company, Inc. v. Caldwell, 850 S.W.2d 167 (Tex. 1993). Ms. Dale responded by pointing out the explicit reservation of the attorney's fees and sanctions issues by the court in the May 17, 2005 order. Also recalling the pretrial circumstances regarding the sanctions issue, the trial court responded with the following:

THE COURT: Because that, in fact, was the case. Because they wanted it heard and I thought the best thing to do was get the case over with and then we'll deal with the lawyers because the parties needed to be dealt with. . . . But I'm thinking that it's kind of like in a family law case you -- any sanctions regarding pretrial orders are waived because they are superceded by the final order. However, this was discussed at length and that I said I had -- Ms. Dale asked for a hearing and I did not allow her to have a hearing because I said I was going to hear it later.
[Counsel for Ms. Navarro]: Judge, if she had filed -
THE COURT: So, for that reason -- so for that reason I am going to deny your request to not hear it. So, we are going to hear it.

The possibility of seeking sanctions against Ms. Navarro was raised well before the start of the jury trial in May with the February 25, 2005, filing of Ms. Dale's motion to depose Ms. Navarro regarding her failure to appear at a scheduled mediation, a pre-trial conference and, a previous scheduled trial date.

We find the facts and circumstances in the instant case distinguishable from the particular holding announced in Remington Arms, and relied upon by Ms. Navarro. Remington Arms involved whether post-trial "death penalty" sanctions for pretrial discovery abuses were proper. See Remington Arms, 850 S.W.2d at 170. The Supreme Court determined "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." Id. "Waiver is defined as 'an intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right.'" Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003). Since the trial court acknowledged that Ms. Dale requested the sanctions matter be heard but the court, in its discretion pursuant to Tex. R. Civ. P. 174, ordered a separate trial regarding attorney's fees and sanctions, we decline to find any waiver of any claim for sanctions. As has been observed, "[i]nterrupting the proceedings on the merits to conduct sanctions hearings may serve only to reward a party seeking delay." See Chambers v. NASCO, Inc., 501 U.S. 32, 56, 111 S.Ct. 2123, 2139, 115 L.Ed.2d 27 (1991).

As the trial court explicitly reserved the issues of attorney's fees and sanctions in the May 17, 2005, modification order, no final, appealable judgment was entered until the sanctions order was signed on November 23, 2005. (1) "While we agree that a judgment does not have to resolve pending sanctions issues to be final, that principle does not control this case. Even if a sanctions order is not required to be included in a final judgment, it may be included there." Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 312 (Tex. 2000). Therefore, the trial court retained jurisdiction to enter the sanctions order when it did and issue six is overruled.

Under her fourth issue, Ms. Navarro would have us hold the sanctions order reversible because the trial court "failed to make specific findings that anything [Ms. Navarro] did significantly interfered with the core functions of the trial court." In reviewing an order imposing sanctions, appellate courts are not bound by a trial court's findings of fact and conclusions of law; rather, reviewing courts must independently review the entire record to determine whether abuse of discretion has occurred. See American Flood Research, 192 S.W.3d at 583 (citing Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 852 (Tex. 1992)). Indeed, any "findings of fact" by a trial court made in support of its sanctions order are not to be treated on appeal as findings made under Tex. R. Civ. P. 296, which usually are reviewed for legal and factual sufficiency. See Mills v. Ghilain, 68 S.W.3d 141, 145 (Tex. App.--Corpus Christi 2001, no pet.) (citing IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 442 (Tex. 1997)). Rather, findings made by the trial court following imposition of sanctions are used only to assist the reviewing court in determining whether an abuse of discretion has occurred. Mills, 68 S.W.3d at 145. As previously noted, we independently review the entire record in making this determination. See Blackmon, 841 S.W.2d at 852.

In support of its sanctions order rendered against Ms. Navarro, the trial court made the
following findings:

A. M. Elena Navarro, unilaterally cancelled mediation without notice to Petitioner or to this
Court causing expense to Petitioner who appeared at mediation.

B. M. Elena Navarro failed to appear at the preferentially set Docket Call with all required documents as ordered by this Court.

C. M. Elena Navarro, counsel for Respondent, following a denial of her Motion for Continuance one week before jury trial, failed to appear on the date of trial as ordered by this Court. She alleged her father was critically ill. It later was revealed he had checked out of a hospital some three days before trial.

D. M. Elena Navarro failed to contact the court to reschedule the trial setting immediately on returning from the visit with [her] father as directed by this Court.

E. M. Elena Navarro has engaged in a pattern of dilatory trial behavior preventing this matter from coming before this Court in a timely and cost effective manner.

We have previously observed that certain statutory and code provisions in Texas permit a trial court to issue sanctions upon proof of certain acts or omissions engaged in by a party to litigation. See In the Interest of A.C.J., a Child, 146 S.W.3d 323, 326 (Tex. App.- -Beaumont 2004, no pet.) Ms. Dale's sanctions allegations, however, did not involve frivolous pleadings or discovery abuse, nor was the trial court's sanctions order based upon such findings.

The source of a trial court's authority to impose sanctions upon counsel comes from recognizing that courts possess inherent power to discipline an attorney's behavior. See In re Bennett, 960 S.W.2d 35, 40 (Tex. 1997) (orig. proceeding). Indeed, a court has the inherent power to impose sanctions on its own motion under appropriate circumstances. Id. In Bennett, the Court acknowledged its earlier observation that a court possesses inherent power "'which it may call upon to aid in the exercise of its jurisdiction, in the administration of justice, and in the preservation of its independence and integrity.'" Id. (quoting Eichelberger v. Eichelberger, 582 S.W.2d 395, 398-99 (Tex. 1979)); see also Public Utility Comm'n of Texas v. Cofer, 754 S.W.2d 121, 124 (Tex. 1988).

We review a trial court's imposition of sanctions for an abuse of discretion. American Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006); Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004). A ruling imposing sanctions will be reversed only if the trial court "acted without reference to any guiding rules and principles." Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985). In determining whether an abuse of discretion has occurred, the appellate court must ensure that the sanctions were appropriate or just. See American Flood Research, 192 S.W.3d at 583 (citing TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 916 (Tex. 1991)). This requires reviewing courts to conduct a two-part inquiry: 1) the reviewing court must ensure that there is a direct relationship between the improper conduct and the sanction imposed (whether punishment was imposed upon the true offender -- the party, its counsel, or both -- and tailored to remedy any prejudice the sanctioned conduct caused); and 2) the reviewing court must make certain that less severe sanctions would not have been sufficient to promote compliance. See American Flood Research, 192 S.W.3d at 583 (citing Powell, 811 S.W.2d at 917).

Navarro's argument is inapposite to the standards for reviewing the imposition of sanctions set out immediately above. Additionally, a trial court's "core functions" have been found to include "the management of its docket and the issuance and enforcement of its orders." See In the Interest of K.A.R., 171 S.W.3d 705, 715 (Tex. App.--Houston [14th Dist.] 2005, no pet.). We are directed by the Texas Supreme Court to independently review the entire record so as to ensure the sanctions imposed "were appropriate or just." American Flood Research, 192 S.W.3d at 583. Therefore, the fact that sanctionable conduct does not bear the label, either individually or collectively, 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 function. We therefore overrule Ms. Navarro's fourth issue.

We also overrule the first part of issue five which complains that the sanctions order does not conform to the motion for sanctions. We have previously held an appellant may not complain that the judgment does not conform to the pleadings if raised for the first time on appeal. See A.V.A. Servs., Inc. v. Parts Indus. Corp., 949 S.W.2d 852, 854 (Tex. App.--Beaumont 1997, no pet.). This is especially the case when only a partial reporter's record is filed by the appellant because the reviewing court cannot determine if the appellant secured a ruling on the issue at trial. See Birnbaum v. Law Offices of G. David Westfall, P.C., 120 S.W.3d 470, 473 (Tex. App.--Dallas 2003, pet. denied) (citing A.V.A. Servs., Inc. v. Parts Indus. Corp., 949 S.W.2d at 854). As noted above, statements made by the trial court during the September 8, 2005, hearing on attorney's fees and sanctions indicate the sanctions issue had been discussed at prior proceedings involving the parties and the trial court. Additionally, as no motion for new trial was filed by Ms. Navarro, the trial court was not given the opportunity to rule on either the judgment conformity issue or the post-judgment interest issue. As a portion of issue five has not been properly preserved for review, it is overruled. See Tex. R. App. P. 33.1(a).

We now turn to issues one through three. Ms. Navarro starts by correctly noting the proper legal standard for reviewing the imposition of sanctions as abuse of discretion, but then proceeds to address the first three findings of the trial court under a somewhat subjective legal/factual sufficiency standard. Additionally, while apparently conceding the trial court's authority to impose sanctions under its inherent powers, Ms. Navarro contends that such sanctions are limited to only those instances where "bad faith abuse of the judicial process" is proven. "Bad faith" may indeed be one basis for imposing inherent authority sanctions, but a survey of pertinent cases demonstrates broader considerations are involved when reviewing the propriety of sanctions imposed. In Chambers v. NASCO, Inc., the Supreme Court characterized a court's "inherent authority" in the following terms:

It has long been understood that "[c]ertain implied powers must necessarily result to our Courts of justice from the nature of their institution," powers "which cannot be dispensed with in a Court, because they are necessary to the exercise of all others.". . . For this reason, "Courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates." . . . These powers are "governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases."
. . . .
Because of their very potency, inherent powers must be exercised with restraint and discretion. A primary aspect of that discretion is the ability to fashion an appropriate sanction for conduct which abuses the judicial process. As we recognized in Roadway Express, outright dismissal of a lawsuit, which we had upheld in Link, is a particularly severe sanction, yet is within the court's discretion. Consequently, the "less severe sanction" of an assessment of attorney's fees is undoubtedly within a court's inherent power as well. . . . [A] court may assess attorney's fees as a sanction for the "'willful disobedience of a court order.'" . . . [A] court may assess attorney's fees when a party has "'acted in bad faith, vexatiously, wantonly, or for oppressive reasons.'". . . The imposition of sanctions in this instance transcends a court's equitable power concerning relations between the parties and reaches a court's inherent power to police itself, thus serving the dual purpose of "vindicat[ing] judicial authority without resort to the more drastic sanctions available for contempt of court and mak[ing] the prevailing party whole for expenses caused by his opponent's obstinacy."Chambers, 501 U.S. at 43, 45-46 (citations omitted).

The Supreme Court in Chambers upheld sanctions imposed by a federal district court under its inherent powers because of fraud perpetrated on the court by the defendant and for "bad faith [defendant] displayed toward both his adversary and the court throughout the course of the litigation." Id. at 54. In In re K.A.R., the court of appeals affirmed the imposition of sanctions for $13,000 in fees and expenses in a modification suit against the petitioner and his trial counsel as the record supported the trial court's finding of the "unilateral cancellation of a court-ordered mediation without adequate notice" by petitioner and his counsel. See In re K.A.R., 171 S.W.3d at 709, 715. Bad faith played no part in this holding as the appellants did not challenge the trial court's finding that their conduct constituted bad faith. See id. at 712 n.3. Nevertheless, the court of appeals recognized that a trial court's inherent authority included the power to manage its docket as well as "the issuance and enforcement of its orders." Id. at 715. In that case, when petitioner's trial counsel decided to cancel the court-ordered mediation session because the petitioner had informed her over a week earlier that he would not be there, without then making an attempt to immediately cancel or postpone the mediation, or timely inform opposing counsel of this development in an attempt to mitigate their inconvenience and expense, trial counsel "effectively usurped the court's role and displaced the court as decision maker. By taking it upon herself to countermand that which the court had ordered, [trial counsel] interfered with a core function of the court." Id.

In Roberts v. Rose, 37 S.W.3d 31 (Tex. App.--San Antonio 2000, no pet.), the court of appeals upheld sanctions imposed only on trial counsel, Roberts, totaling $1,250 for failure to appear at a scheduled mediation session, and for failure to notify opposing parties of the intent not to attend mediation or to confirm a possible scheduling conflict. See id. at 33, 35. As in the instant appeal, Roberts raised error by the trial court in imposing sanctions when there was neither an allegation nor a finding of bad faith as to him individually. Id. at 34. The court of appeals responded that Roberts was not sanctioned for failing to mediate in good faith, but for failing to appear at the scheduled mediation and for his other omissions. Id. Citing to Decker v. Lindsay, 824 S.W.2d 247, 250 (Tex. App.--Houston [1st Dist] 1992, no writ), the court of appeals noted that while parties cannot be forced to peaceably resolve their disputes through dispute resolution procedures, "a trial court can compel the parties to sit down with each other." Id. To further emphasize the breadth of the trial court's inherent authority to sanction, the court of appeals then cited to Gleason v. Lawson, 850 S.W.2d 714, 717 (Tex. App.--Corpus Christi 1993, no writ), which held that a trial court has authority to sanction a party for failure to attend a court-ordered settlement conference. Id.

The Roberts court also noted with approval the fact that the trial court specifically engaged in a determination of whether the offensive conduct in question was attributable to Roberts only, or to the client (Murr) only, or to both. Id. at 34-35. See also Wetherholt v. Mercado Mexico Café, 844 S.W.2d 806, 808 (Tex. App.--Eastland 1992, no writ). The trial court attributed the offensive conduct to Roberts only and the court of appeals set out the supporting evidence in the record as follows:

[T]he trial court determined that the attorney, Roberts, was chiefly to blame for both Murr's having missed the mediation and the following hearing. It was Roberts's failure to keep in regular contact with his client that led directly to both of these events. . . . T[he] evidence reflected that Murr was willing and eager to participate in his own case, if given the opportunity.
The only evidence of bad faith is not in Murr's failure to appear at the mediation or at the subsequent sanctions hearing, but in Roberts's deliberate acts of bad faith throughout his representation of Murr. Roberts's habitual failure to keep his client informed during the litigation, ultimately amounting to a missed mediation session resulting in sanctions against Murr, indicates bad faith on the part of Roberts, rather than Murr. Because the individual most responsible for the infraction is to be sanctioned, the trial court's ruling which only assessed sanctions against Roberts, was not an abuse of discretion and should be affirmed according to the first prong. Wetherholt, 844 S.W.2d at 808. Similarly, the second prong which mandates that the sanction be fair in light of the harm done and conducive to effectuating the tripartite goals of discovery is also met. The sanctions are not outrageously punitive, and will hopefully prevent Roberts and other attorneys like him from abusing their positions and their clients' trust. Roberts, 37 S.W.3d at 34-35.

In further support for upholding the sanctions, the record also indicated that, in addition to failing to inform his client, Murr, of the court-order mediation, Roberts, upon discovering his personal schedule conflicted with the mediation time, faxed a letter to the mediator advising him of the conflict. Id. at 33. Thereafter, Roberts made no attempt to confirm the scheduled mediation had been postponed, nor did he make any further attempts to reschedule the mediation session. Id. No abuse of discretion by the trial court in Roberts was shown.

Also instructive is the rationale given by the court of appeals in upholding sanctions against a defendant-insurance carrier in light of evidence of its serious pretrial misconduct in Kings Park Apartments, Limited v. National Union Fire Insurance Company of Pittsburgh, Pennsylvania, 101 S.W.3d 525, 539-42 (Tex. App.--Houston [1st Dist.] 2003, pet. denied) (discovery abuse included, inter alia, paralegal instructed by National Union and its attorneys to steal documents from the chambers of the special trial judge; sanctions included requiring National Union to pay $25,000 to the Texas Center for Legal Ethics and Professionalism). In addressing King Park's appellate complaint that the sanctions were "toothless, and largely symbolic," the court of appeals stated:

[T]he allegation that National Union instructed a paralegal to steal documents from the chambers of the special trial judge may be viewed as a [sic] interference with the traditional core functions of the court. Based on this allegation, therefore, the trial court had the authority to enter sanctions under its inherent power. . . .

Here, the trial court indicated, in relation to its ruling under its inherent powers, that the circumstances made an award of attorneys fees to Kings Park unjust. The court specifically stated why it did not award attorney's fees: "This has been a very contentious case, and Kings Park's expenditure of attorney's fees was self-inflicted in an attempt to gain information to use in other cases." Moreover, the sanctions order stated that the trial court "considered the offensive conduct and attempted to craft sanctions appropriate to punish that conduct." We believe that the trial court was in the best position to do so, especially in light of the fact that many sanctions hearings had been held. We hold that the trial court did not abuse its discretion in imposing the sanctions under its inherent power and in denying attorney's fees.
Id. at 541-42.

In the instant case, the conduct of Ms. Navarro under scrutiny dated from early January of 2005, up to the day of trial in early May of 2005. Sworn testimony indicated that on January 6, 2005, while present along with Ms. Dale at the Dispute Resolution Office (DRO) after being ordered to mediate, Ms. Navarro, upon checking her electronic calendaring device, agreed to a mediation session on January 12, 2005. At that time, Ms. Navarro did not advise Ms. Dale or the trial court that she was set to begin a criminal jury trial in Harris County the following day, January 7, 2005. In addition to mediation, the parties were also scheduled on January 12 for a docket call at which time certain pretrial discovery was to have been exchanged as the jury trial was to have commenced on January 18, 2005.

Although Ms. Navarro assumed her criminal jury trial would be finished well before the January 12 mediation/docket call date, jury selection actually began on January 10, and Ms. Navarro had no explanation why she waited until January 11 to initially inform Ms. Dale of these events and orally request a continuance, which Ms. Dale refused. Ms. Navarro admitted that she was one of two attorneys appearing for the defense in the criminal trial, but she was somewhat unclear as to which attorney was lead-counsel for the criminal defendant. It was only during jury deliberations in the criminal trial that Ms. Navarro first telephoned, then faxed, her motion for continuance to the trial court. Although Ms. Navarro's motion for continuance was denied by the trial court, she participated in the docket call proceeding via telephone. Her absence led to the late exchange of certain discovery documents (January 14), while other discovery was not provided to Ms. Dale until the day before trial was to begin.

On the day of trial, January 18, 2005, Ms. Navarro again failed to appear, and again failed to timely notify Ms. Dale. Ms. Navarro apparently left a "message" by telephone with the trial court that her father was seriously ill in Mexico and that she would not be appearing for trial. A non-lawyer in Ms. Navarro's office apparently was present on January 18 when rescheduling of the jury trial was discussed with the trial court and Ms. Dale. On January 20, 2005, the trial court faxed a letter to Ms. Navarro's office requesting that she contact the court to reschedule the trial "[a]s soon as you return[.]" The trial court's letter further contained the following request: "I think it appropriate for you to supply the court with documentation to support your absence from Trial, for the record."

The first contact Ms. Navarro had with the trial court following the trial date was by way of a letter her office faxed to the court along with Ms. Navarro's affidavit, which she intended to serve as proof of her "emergency" as requested by the court. The pertinent portion of her affidavit reads as follows:

On Tuesday, January 18, 2005, I was informed that my father was critically ill. My father currently resides in Nueva Ciudad Guerrero, Tamaulipas, Mexico. I had to leave the country immediately in order to be with my father and was unable to be present on the trial date for the Gaeta matter. As an officer of the court, I am submitting this affidavit in response to the court's request for documentation to support my absence from trial. Because of the highly personal nature relating to my father's illness, I sincerely hope this affidavit suffices to support the proof of emergency.

Ms. Navarro supplied the trial court with copies of documents from Mexico related to her father's medical condition as well as a copy of her credit card account indicating charges for the dates in question and a copy of a prepaid phone card used by Ms. Navarro while in Mexico. Although Ms. Navarro failed to submit the medical documents with English translation, Ms. Dale had them translated. These documents raised further controversy as they appeared to indicate that Ms. Navarro's father's medical condition manifested itself much earlier than January 17, and indeed appeared to have subsided by January 18. During the colloquy between the parties and the trial court Ms. Navarro attempted to place her exhibits in their proper context, viz:
MS. NAVARRO: Well, Judge, I'm saying -- I wanted to make sure that the Judge -- the Court understood that my dad was hospitalized on the 14th, released on the 15th. He went to the doctor on the 16th again in Zacatecas and he was released on the 16th.
THE COURT: Okay. Tell me that chronology again.
MS. NAVARRO: He was hospitalized on the 14th and then he was released on the 15th around 2:00 o'clock. He was still in Zacatecas on the 16th when he -- again was seen by a doctor. And on that day he was kept under observation for 24 hours so he was actually released on the 17th.
THE COURT: From where?
MS. NAVARRO: From the doctor in Zacatecas.
MS. NAVARRO: He returned back to his home town because he wanted to be at his home whenever he thought he was going to pass away. That's where he wanted to be in his home with his family. So he arrived back at the house around 7 -- the 17th and that's when the family was notified that we had to be over there because he was very ill and we thought -- they thought he was not going to make it. So that's when my brother came to my house, let me know that my dad was ill which was in the early hours on the 18th or late on the 17th and that's when I headed over there, Judge. So I just want to make sure that -- that the Court understands he was not there in his home town when all of this happened so we could not -- we did not know what was going on in this time period.
MS. DALE: Your brother didn't go, did he?
. . . .
MS. NAVARRO: I didn't say he [Navarro's brother] didn't leave on the 18th. He left that day because we met -- we -- all the family met together at my father's house.
THE COURT: Okay. What documentation do we have to that effect about the -- your father's chronology?
MS. NAVARRO: Well, Judge, her translations of the documents are the only ones -- the only translations. But the Spanish documents are attached to the response -
MS. NAVARRO: -- as an exhibit.
. . . .
MS. NAVARRO: I am not denying I went to Zapata, Judge. That's where the majority of my family lives. It is 20 minutes away from where my father lives in Mexico. You just have to cross the border to get to the other side and the town is right across from there. When I went over there our family was leaving, coming, just as he was starting to get better or just visiting with him. So, yes, I went back with my family to Zapata. I am not denying that. I took money out. I needed cash. I went to the ATM and that shows that I took money out.
. . . .
MS. DALE: You visited a friend. Sorry. You stayed at a hotel. The hotel is on the pulse card receipt on the 24th or 25th.
THE COURT: 25th.
MS. DALE: There you have it, you were -- so all of this time we certainly didn't get a call from Ms. Navarro.
MS. NAVARRO: Judge, when -- y'all had that court hearing on the 18th when I was gone and Valerie participated. That's my assistant. She told me that Ms. Dale had requested that we start the following week and that you had said is (sic) there was another jury trial already scheduled for that week so my understanding was that we were not going to start the following week.
As a final evidentiary note, the record indicates that pretrial scheduling orders were issued as early as September 26, 2004, and the following order appearing in bold print directly under date for the January 12, 2005, docket call: "Appearance at Docket Call is Mandatory! Any party that fails to appear at Docket Call will be subject to appropriate sanctions which may include striking of pleadings and/or the exclusion of some or all of that party's evidence."

We have independently reviewed the entire record presented by the parties. American Flood Research, 192 S.W.3d at 583. On this record we cannot say the trial court abused its discretion in imposing sanctions against M. Elena Navarro. The credibility of the testimony and the amount of weight to be given any particular item of evidence was for the trial court alone. The trial court had inherent power to aid it in the preservation of its independence and integrity. In re Bennett, 960 S.W.2d at 40; Eichelberger, 582 S.W.2d at 398. In the instant case, the trial court was confronted with several instances of conduct on the part of Ms. Navarro during the course of the underlying modification litigation that, when taken together, could be found to have significantly interfered with the court's management of its docket as well as the issuance and enforcement of its orders. See In re K.A.R., 171 S.W.3d at 715.

We echo the sentiments of the court of appeals in Kings Park Apartments in that the trial court was in the best position to consider the offensive conduct in question and to craft sanctions appropriate to punish that conduct. See Kings Park Apartments, 101 S.W.3d at 542. The $5,000 sanction imposed against Ms. Navarro alone is not excessive under the record presented. Moreover, the sanction punishes the "true offender" while a lesser amount would have lacked the measure of punishment intended by the court. See American Flood Research, 192 S.W.3d at 583. Issues one, two, and three are overruled.

Lastly, the second part of Ms. Navarro's fifth issue complains the trial court erred in awarding post-judgment interest of 10% on the sanctions amount. She points out that the finance code limits interest rates under a general money judgment to not more than 5%. See Tex. Fin. Code Ann. § 304.003 (Vernon 2006). However, Ms. Navarro was required to present this complaint to the trial court prior to raising it as an appellate issue. See Tex. R. App. P. 33.1; Goodson v. Castellanos, 214 S.W.3d 741, 760 (Tex. App.--Austin 2007, pet. filed); Wohlfahrt v. Holloway, 172 S.W.3d 630, 639-40 (Tex. App.--Houston [14th Dist.] 2005, pet. denied), cert. denied, 127 S.Ct. 666 (2006). Our review of the record fails to turn up any complaint by Ms. Navarro to the trial court as to its calculation of post-judgment interest on the sanctions amount. Therefore, this particular complaint under Ms. Navarro's fifth issue has not been preserved for appellate review and is overruled.

We dismiss appellant Constantino Gaeta's appeal for want of prosecution. And, as we have overruled each of appellant M. Elena Navarro's issues regarding the sanctions imposed on her, we affirm the trial court's judgment in all respects.

Submitted on November 16, 2006
Opinion Delivered July 12, 2007

Before McKeithen, C.J., Gaultney and Kreger, JJ.

1. Recall that the sanctions order was signed the day after the order disposing of the attorney's fees issue.
Full style of case: In the Interest of J.V.G.--Appeal from 221st District Court of Montgomery County

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