Opinion issued May 1, 2014.

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-12-01169-CV

———————————

AQUARIUM ENVIRONMENTS, INC. AND R.J. BLUE, Appellants

V.

VICTOR S. ELGOHARY, Appellee

On Appeal from the 189th District Court

Harris County, Texas

Trial Court Case No. 2011-52458

MEMORANDUM OPINION

In this appeal after a jury verdict in a consumer services case, appellant 

contends the trial court erred by (1) submitting appellees’ implied warranty DTPA 

claim to the jury; (2) excluding the testimony of two of appellant’s fact witnesses;
2

(3) imposing post-verdict sanctions against appellant and its counsel; and (4) 

holding appellant’s counsel in contempt of court and imposing contempt fines. We 

vacate the sanctions order, reverse and render a take nothing judgment on 

appellee’s claim for sanctions, dismiss the complaints related to contempt, and 

affirm the remaining portions of the judgment.

BACKGROUND 

Factual Background

Appellee, Victory Elgohary, designed and built a 320-gallon salt water 

aquarium for his home. The tank is four feet wide, four feet long, and once placed 

on its base cabinet, stands ten feet tall. Elgohary spent $30,000 building the 

aquarium, which was then stocked with tropical fish and coral.

Appellant, Aquarium Environments, Inc., which does business under the 

name The Fish Gallery, sells aquariums, supplies, fish, and coral. It also services 

aquariums for private individuals and businesses.

In June 2011, while Elgohary was on vacation, he received an electronic 

notification that his aquarium was overheating. Elgohary called his neighbor, 

Mitchell Randolph, and asked him to go next door and check on the aquarium. 

Randolph, who had a key to Elgohary’s home, went next door and for the next two 

days communicated with Elgohary about the condition of the aquarium and the
3

fish. After a couple of days, Randolph reported to Elgohary that most of the coral 

and fish had died.

Elgohary then called Aquarium Environments, from whom he had purchased 

supplies, fish, and coral in the past, about going to his home to remove the dead 

livestock, which included the coral and fish. Elgohary talked to Jaime DePujadas, 

the general manager, and the two agreed that Aquarium Environments would send 

employees to Elgohary’s home to perform a partial water change and remove the 

dead animals. Elgohary and DePujadas agreed that Elgohary would pay the 

company for the time of its employees and the material used.

Aquarium Environments sent two employees, Chris Ordeneaux and Kenton 

Luff, to Elgohary’s home. Randolph met them there and let them in. Randolph 

then watched as Ordeneaux and Luff removed the dead animals. Randolph 

testified that Orderneaux removed the dead coral by pressing each piece of coral 

against the side of the acrylic tank for leverage and dragging it near the top with a 

long-handled scraper, and then reaching in to pull the coral from the top of the 

aquarium.

Randolph told Ordeneaux that he was concerned that this method of 

removing the coral would damage Elgohary’s tank, so he offered to go get a longer 

ladder for Ordeneax. Ordeneaux refused the offer, but Randolph went to get the
4

ladder anyway. Ordeneaux continued removing the coral by dragging it up the 

side of the tank.

When Elgohary returned from vacation, he noticed that the interior surfaces 

of his aquarium were scratched. He testified that he had caused one of the “dings” 

noticed on the tank’s interior when he installed it, but that the long “scratches” 

were not there before Aquarium Environments serviced the tank.

Procedural Background

Elgohary filed suit alleging breach of contract, violations of the Texas 

Deceptive Trade Practices Act [“DTPA”], negligence, and breach of a settlement 

agreement pursuant to which Aquarium Environments would repair the aquarium 

in return for Elgohary not filing suit.

Before trial, Elgohary requested that the trial court sever his claim based on 

the alleged breach of a settlement agreement. The trial court also granted 

Elgohary’s motion in limine to prevent two Aquarium Environments employees 

from testifying because they never appeared for depositions.

After a two-day trial, the trial court submitted the case to a jury. The jury 

found in favor of Elgohary on all three liability questions submitted: DTPA breach 

of warranty, breach of conract, and negligence. The jury awarded $6,538.39 in 

actual damages, plus attorney’s fees of $15,000 and conditional attorney’s fees on 

appeal of $5,000.
5

At Elgohary’s request, the trial court rejoined and then nonsuited Elgohary’s 

claim for breach of a settlement agreement. The trial court also signed a judgment 

in Elgohary’s favor in accordance with the jury’s verdict.

Elgohary then moved to amend the judgment to add sanctions against 

Aquarium Environments and its counsel, R.J. Blue. He attached evidence to his 

motion. The trial court held a hearing on January 11, 2013, but reset it for a later 

date when Aquarium Environments requested a full evidentiary hearing.

On March 1, 2013, the trial court held an evidentiary hearing on Elgohary’s 

request for post-judgment sanctions, and later signed a sanctions order and an 

amended final judgment that included sanctions. At the sanctions hearing, the trial 

court also held Blue in contempt of court and assessed a fine of $500.

Aquarium Environments filed a motion to modify the final judgment, which 

the trial court did, signing an amended sanctions order and a second amended final 

judgment.

Aquarium Environments then sought to file a formal bill of exceptions. At a 

hearing related thereto, the trial court held Aquarium Environments’ counsel, Blue, 

in contempt of court and assessed a fine of $1,000, which it later reduced to $200 

after Blue spent time in custody.

This appeal followed.
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SUBMISSION OF DTPA CLAIM

In its first issue on appeal, Aquarium Environments contends “[t]he trial

court erred by submitting Appellee’s implied warranty DTPA claims to the jury.” 

The jury charge contained three separate questions on Aquarium Environment’s 

liability: the first question asked the jury to find whether Aquarium Environment 

violated the DTPA by failing to comply with a warranty to perform its services in a 

good and workmanlike manner; the second question asked whether it had breached 

its contract with Elgohary; and the third question asked whether Aquarium 

Environments was negligent. The jury was then instructed to award damages to 

Elgohary if it made an affirmative finding on any one of these three questions. The 

jury was then asked to award attorney’s fees if it answered affirmatively to either 

the DTPA or breach of contract questions. The jury answered all three liability 

questions affirmatively, finding that Aquarium Environments failed to comply with 

a warranty under the DTPA, breached its contract with Elgohary, and was 

negligent in damaging Elgohary’s aquarium.

If an independent ground fully supports the complained-of judgment, but an 

appellant assigns no error to that independent ground, then we must accept the 

validity of the unchallenged independent ground and, thus, any error in another 

ground challenged on appeal is harmless. Britton v. Tex. Dep’t of Criminal 

Justice, 95 S.W.3d 676, 682 (Tex. App.—Houston [1st Dist.] 2002, no
7

pet.); Harris v. Gen. Motors Corp., 924 S.W.2d 187, 188 (Tex. App.—San 

Antonio 1996, writ denied). The rule requiring an appellant to attack all 

independent grounds supporting a judgment has been applied in many contexts, 

including independent jury findings fully supporting a trial court’s 

judgment. See Britton, 95 S.W.3d at 682 (stating that “appellant must attack each 

independent jury finding to obtain a reversal”). Although Aquarium Environments 

has challenged the jury’s finding that it had failed to comply with an implied 

warranty under the DTPA, it has not asserted any challenge to the jury’s separate 

affirmative finding to the breach of contract question. Because the jury answered 

both liability questions affirmatively, and because the jury charge was structured to 

allow the jury to award damages and attorney’s fees based upon an affirmative 

finding to either of these liability questions, the trial court’s award of actual 

damages in favor of Elgohary can be upheld by the jury’s liability findings on 

either the breach of contract or warranty questions. Because Aquarium 

Environments does not challenge the jury’s affirmative finding on the breach of 

contract question, which is an independent ground supporting liability and 

damages, we hold that any error by the trial court in submitting the DTPA implied 

warranty question is harmless.

Accordingly, we overrule Aquarium Environments’ first issue on appeal.
8

EXCLUSION OF TESTIMONY

In its second issue on appeal, Aquarium Environments contends the “trial 

court abused its discretion by excluding the testimony of Appellant’s fact witnesses 

during trial.” Specifically, Aquarium Environments contends that the trial court 

erred by refusing to permit Ordeneaux and Luff from testifying, and that such 

exclusion was, in effect, a death penalty sanction because those were the only two 

witnesses from Aquarium Environments who were present when the tank was 

cleaned. Elgohary responds that the exclusion of Ordeneaux and Luff was a proper 

discovery sanction as a result of their failure to appear for a deposition after being 

ordered to do so.

Factual Background

On July 5, 2012, Ordeneaux and Luff failed to appear for their properly 

noticed depositions. Elgohary filed a Motion to Compel Deposition and for 

Sanctions, and on October 19, 2012, the trial court granted the motion to compel, 

but denied sanctions at that time. Instead, the trial court granted Aquarium 

Environments additional time to complete discovery in order to allow it another 

opportunity to produce Ordeneaux and Luff for deposition. The trial court warned 

Aquarium Environments that if it failed to produce Ordeneaux and Luff for 

deposition, the trial court would not permit them to testify at trial.
9

On November 21, 2012, shortly before trial, Elgohary filed a motion in 

limine to prohibit Aquarium Environments from addressing or mentioning in front 

of the jury any testimony by Ordeneaux and Luff because Aquarium Environments 

had still not made them available for depositions. The trial court granted 

Elgohary’s motion, and the following exchange took place:

[Trial Court]: I’m assuming they got some kind of excuse for [failing 

to appear at their initially noticed depositions]; but, Counsel, I think 

you left out one important fact in your review of the motions, that was 

when y’all came down here on that Motion for Sanctions and you 

asked for the continuance. I said, okay, I’ll give you a continuance 

but since you had arranged for those gentlemen they were enough 

under your control to work out—that you had arranged to have them 

come there and they were former employees of your client. I made 

crystal clear to you that if you wanted them to testify you need to 

make them available for deposition; and I didn’t put it on the Plaintiff 

to notice them again and have you arrange, you know, to try to get 

them again. They had done that once. You had said you were going 

to produce them and they didn’t show. So I made crystal clear to you 

that if you wanted to bring them to testify at trial, you were going to 

have to produce them for deposition and that meant you were going to 

have to take the initiative and say, here they are; they’re ready to be 

deposed; when do you want them; and if they didn’t go forward then, 

that would be at their risk.

[Defense Counsel]: You won’t hear anything from me. You’re right. 

I don’t want to make the mistake of communicating this, but there’s 

nothing I want you to interpret as me saying I can’t control these guys.

[Trial Court]: You clearly can because you brought them here to trial. 

[Defense Counsel]: Right.

[Trial Court]: And I made clear to you that day that if you wanted 

them to testify at trial you needed to produce them for deposition. 

You did not do that so they are not going to testify at trial. If that
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means we have to do this again, so be it; but I’m not going to let you 

ignore the specific ruling that I made about how to deal with this 

problem and then come in on the last day and have them testify 

without having made them available for deposition. It’s not fair to the

Plaintiff. They did what they could to get the deposition, and I’m not 

going to make them keep begging you to get these folks to produce 

them. I made clear after you had told me the first time that you 

thought they were going to be there and they just didn’t show that you 

needed to get them there if you wanted them to testify; and I don’t 

think there’s any doubt in your mind that that was the effect of my 

ruling. It wasn’t that the Plaintiff had to keep beating on you to get 

them.

* * * *

So you needed to take the initiative to reschedule them. I’m sorry, 

Mr. Blue, but that’s fair and there’s nothing unfair about what I’m 

doing. If you all want to reconsider you position on all this in light of 

that, fine; but I’m happy to let the Court of Appeals decide whether I 

am justified in imposing this sanction. You had witnesses under your 

control who did not show up. You never offered to make them 

available again; and in that case, I’m not going to let them testify.

[Defense Counsel]: It’s totally fair. I just wanted to get a record of 

that and lacking consideration of a less severe sanction for the death 

penalty.

Standard of Review and Applicable Law

We review a trial court’s decision with regard to discovery matters for abuse 

of discretion. Wigfall v. Tex. Dep’t of Criminal Justice, 137 S.W.3d 268, 272 (Tex. 

App.—Houston [1st Dist.] 2004, no pet.). A trial court abuses its discretion if a 

decision is so arbitrary and unreasonable as to amount to a clear and prejudicial 

error of law. Wheeler v. Methodist Hosp., 95 S.W.3d 628, 644 (Tex. App.—

Houston [1st Dist.] 2002, no pet.).
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If a person designated to testify on behalf of a party fails to comply with 

proper discovery requests, a trial court may make an order prohibiting the 

disobedient party from introducing designated matters into evidence. TEX. R. CIV. 

P. 215.2(b)(4). Nevertheless, sanctions imposed under Rule 215 must be just under 

the circumstances. In re Ford Motor Co., 988 S.W.2d 714, 718 (Tex. 1998). We 

consider two factors when determining whether a trial court abused its discretion 

by ordering an unjust sanction. Id.; In re Supportkids, Inc., 124 S.W.3d 804, 807 

(Tex. App.—Houston [1st Dist.] 2003, orig. proceeding). First, we determine 

whether a direct relationship exists between the offensive conduct and the 

sanctions. Ford, 988 S.W.2d at 718; Supportkids, 124 S.W.3d at 807. Second, we 

consider whether the trial court ordered an excessive sanction. Ford, 988 S.W.2d at

718; Supportkids, 124 S.W.3d at 807. A sanction imposed for discovery abuse 

should be no more severe than necessary to satisfy its legitimate purpose. 

TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991). A 

trial court must take into account the availability of less stringent sanctions and 

whether such sanctions would fully promote compliance. Id.

Analysis

In the present case, the sanctions ordered by the trial court were directly 

related to the offensive conduct, i.e., the failure to produce Ordeneaux and Luff for 

deposition. A just sanction must be directed against the abuse and toward
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remedying the prejudice suffered by the innocent party. Id. Here, by prohibiting 

Ordeneaux and Luff from testifying at trial, the trial court directed its order at the 

abuse and prevented the prejudice that would have been caused by Elgohary’s 

having to prepare for trial without the benefit of information he would have gained 

through his properly noticed depositions.

And, the trial court’s order cannot be regarded as an excessive sanction. 

After Ordeneaux and Luff failed to appear for their properly noticed depositions, 

the trial court granted Elgohary’s motion to compel their appearance, but also 

granted Aquarium Environments’ additional discovery time so that it could make 

Ordeneaux and Luff available to Elgohary for deposition. As such, the record 

shows that the trial court did, in fact, attempt a lesser sanction before excluding 

Ordeneaux’s and Luff’s testimony at trial. Only when the trial court’s order did 

not produce compliance by Aquarium Environments did the trial court take the 

next step in excluding Ordeneaux’s and Luff’s testimony at trial. As such, the trial 

court did not abuse its discretion in prohibiting Ordeneaux and Luff from testifying 

at trial. See Adams v. Allstate County Mut. Ins. Co., 199 S.W.3d 509, 513–14 

(Tex. App.—Houston [1st Dist.] 2006, pet. denied) (holding trial court’s discovery 

sanction excluding witness’s affidavit not an abuse of discretion after witness 

evaded service to avoid deposition).

Accordingly, we overrule Aquarium Environments’ second issue on appeal.
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POST-JUDGMENT SANCTIONS

In their third issue on appeal, Aquarium Environments and its counsel, R.J. 

Blue, contend “the trial court abused its discretion by awarding post-judgment 

sanctions of $30,000 against Appellant and Appellant’s counsel.”

Factual Background

After final judgment was signed, Elgohary filed its Second Motion for 

Sanctions seeking monetary sanctions against Aquarium Environments and its 

attorney R.J. Blue “for overall conduct in this case and also asks the court to 

modify the judgment this case to include and conform to the sanctions order.” 

Specifically, Elgohary argued that the following pleadings were filed in violation 

of the above-referenced rules: (1) a motion for no evidence summary judgment; (2) 

a motion in opposition to mediation; (3) a first amended answer and counterclaim; 

(4) a motion for continuance; and (5) two motions to quash.

The trial court held a hearing on the motion for sanctions on January 11, 2013. 

At that hearing, Aquarium Environments asserted that it was entitled to a full evidentiary 

hearing on the motion for sanctions. The trial court agreed and a second hearing was 

held on March 1, 2003. At the hearing, Elgohary produced no witnesses, but instead 

relied on the evidence attached to his motion, which consisted mostly of pleadings filed 

in the case, emails and correspondence between the attorneys, and an affidavit on 

attorney’s fees. Blue called Elgohary as a witness and explored with him Elgohary’s
14

contentions that the pleadings were groundless. Blue also testified and explained why he 

filed each of the challenged pleadings and that he had “no bad faith motive” in the filings.

Elogohary’s motion also asserted that he was entitled to sanctions pursuant to TEX. 

R. CIV. P. 215 for various discovery abuses attributable to Blue’s conduct in the case. 

However, at the March 1, 2003 hearing, Elgohary withdrew his claim for attorney’s fees 

sanctions under Rule 215 after Blue, citing Remington Arms Co., Inc. v. Caldwell, 850

S.W.2d 167 (Tex. 1993),1 argued that sanctions under Rule 215 were not available

because Elgohary had not obtained a pretrial ruling on the alleged discovery abuse, of 

which he was aware before trial.

The trial court granted Elgohary’s motion for sanctions and signed an order 

finding that the five pleadings were groundless and brought in bad faith. The trial court’s 

order also stated, “The Court is of the firm conclusion that the series of pleadings and 

motions by Mr. Blue after January 2012

2

was for an improper purpose, namely to harass, 

delay, and increase the cost of litigation.” The order also awarded Elgohary $30,000 in 

sanctions—$15,000 payable by Aquarium Environments and $15,000 payable by Blue,

individually, plus contingent appellate attorney’s fees from Blue in the event the sanctions

1

In Remington Arms, the relator argued that the trial court’s post-trial sanctions 

against it were not recoverable under Rule 215 because the trial court could not 

impose discovery sanctions post-trial for pretrial discovery abuse. 850 S.W.2d at

170. The supreme court 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,” but recognized that “if pretrial

discovery abuse is not revealed until after the trial has begun, or even after trial, a

party cannot be said to have waived a claim for sanctions.” Id.

2

The record shows the significance of January 2012 as being the month in which

Elgohary made a $6000 settlement demand on Aquarium Environments.
15

were unsuccessfully appealed. The sanctions were a global award and did not apportion 

any specific amount to any one of the five challenged filings.

These sanctions were then incorporated into the trial court’s Second Amended

Final Judgment.

Standard of Review

We review a trial court’s ruling on a motion for sanctions for an abuse of 

discretion. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004); Taylor v. Taylor,

254 S.W.3d 527, 532 (Tex. App.—Houston [1st Dist.] 2008, no pet.). A trial court 

abuses its discretion when it acts without reference to any guiding rules and 

principles, and we reverse a trial court’s ruling only if its action is arbitrary or 

unreasonable. Cire, 134 S.W.3d at 838–39 (citing Downer v. Aquamarine 

Operators, Inc., 701 S.W.2d 238, 241, 242 (Tex. 1985)). A trial court does not 

abuse its discretion if it bases its decision on conflicting evidence and some 

evidence supports its decision. In re Barber, 982 S.W.2d 364, 366 (Tex. 1998) 

(orig. proceeding); Glattly v. Air Starter Components, Inc., 332 S.W.3d 620, 642 

(Tex. App.—Houston [1st Dist.] 2010, pet. denied). We make an independent 

inquiry of the entire record to determine whether the trial court abused its 

discretion in imposing the particular sanctions. Scott Bader, Inc. v. Sandstone 

Prods., Inc., 248 S.W.3d 802, 812 (Tex. App.—Houston [1st Dist.] 2008, no pet.)
16

(citing Daniel v. Kelley Oil Corp., 981 S.W.2d 230, 234 (Tex. App.—Houston [1st

Dist.] 1998, pet. denied)).

Sanctions Under Chapter 10

Civil Practice and Remedies Code section 10.001 provides that the signing 

of a pleading constitutes a certification by the signatory that to the signatory’s best 

knowledge, information, and belief, formed after reasonable inquiry:

(1) the pleading or motion is not being presented for any improper 

purpose, including to harass or to cause unnecessary delay or needless 

increase in the cost of litigation;

(2) each claim, defense, or other legal contention in the pleading or 

motion is warranted by existing law or by a nonfrivolous argument for 

the extension, modification, or reversal of existing law or the 

establishment of new law;

(3) each allegation or other factual contention in the pleading or 

motion has evidentiary support or, for a specifically identified 

allegation or factual contention, is likely to have evidentiary support 

after a reasonable opportunity for further investigation or discovery; 

and

(4) each denial in the pleading or motion of a factual contention is 

warranted on the evidence or, for a specifically identified denial, is 

reasonably based on a lack of information or belief.

TEX. CIV. PRAC. & REM. CODE ANN. § 10.001 (Vernon 2002); see also Mattox v. 

Grimes Co. Comm’rs Court, 305 S.W.3d 375, 386 (Tex. App.—Houston [14th 

Dist] 2010, pet. denied) (“Sanctions under chapter 10 of the Civil Practice and 

Remedies Code are authorized if the evidence establishes that (1) a pleading or

motion was brought for an improper purpose, (2) there were no grounds for legal
17

arguments advanced, or (3) a factual allegation or denial lacked evidentiary 

support.”). The trial court may impose sanctions on a person who has signed a 

pleading in violation of section 10.001. See TEX. CIV. PRAC. & REM. CODE ANN. §

10.004(a) (Vernon 2002).

However, sanctions for alleged violations of chapter 10 known to the 

movants before trial are waived if a hearing and ruling are not secured pretrial. See 

Finlay v. Olive, 77 S.W.3d 520, 525 (Tex. App.—Houston [1st Dist.] 2002, no 

pet.) (citing Remington Arms Co. v. Caldwell, 850 S.W.2d 167, 170 (Tex.

1993)). Because that was not done in this case, the trial court could not impose 

sanctions under Chapter 10.

Sanctions Under Rule 13

Rule 13 authorizes the imposition of sanctions against an attorney, a 

represented party, or both, who file pleadings that are (1) groundless and brought 

in bad faith or (2) groundless and brought to harass. TEX. R. CIV. P. 13. This is a 

two-part test, requiring a party moving for rule 13 sanctions to demonstrate both 

that the opposing party’s filings are groundless and then to also show that the 

pleadings were filed either in bad faith or for the purposes of harassment. R.M. 

Dudley Constr. Co. v. Dawson, 258 S .W.3d 694, 707 (Tex. App.—Waco 2008, 

pet. denied). “Groundless” for purposes of rule 13 means no basis in law or fact 

and not warranted by good faith argument for the extension, modification, or
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reversal of existing law. TEX. R. CIV. P. 13. Bad faith is not simply bad judgment 

or negligence; rather, it is the conscious doing of a wrong for dishonest, 

discriminatory, or malicious purposes. Parker v. Walton, 233 S.W.3d 535, 540 

(Tex. App.—Houston [14th Dist.] 2007, no pet). Improper motive is an essential 

element of bad faith. Id. Harassment means that the pleading was intended to 

annoy, alarm, and abuse another person. Id.

Courts must presume that pleadings and motions are filed in good faith, and 

sanctions should not be imposed “except for good cause, the particulars of which 

must be stated in the sanction order.” TEX. R. CIV. P. 13. The party moving for 

sanctions bears the burden of overcoming the presumption that pleadings are filed 

in good faith. Parker, 233 S.W.3d at 540.

When determining whether rule 13 sanctions are proper, the trial court must 

examine the facts available to the litigant and the circumstances existing when the 

litigant filed the pleading. Harrison v. Harrison, 363 S.W.3d 859, 863–64 (Tex. 

App.—Houston [14th Dist.] 2012, no pet.). The trial court must provide notice and 

hold an evidentiary hearing “to make the necessary factual determinations about 

the motives and credibility of the person signing the groundless petition.” Parker,

233 S.W.3d at 539–40 (quoting Aldine Indep. Sch. Dist. v. Baty, 946 S.W.2d 851,

852 (Tex. App.—Houston [14th Dist.] 1997, no writ)). Without such a hearing, the 

trial court has no evidence before it to determine that a pleading was filed in bad
19

faith or to harass. Alejandro v. Robstown Indep. Sch. Dist., 131 S.W.3d 663, 669 

(Tex. App.—Corpus Christi 2004, no pet.).

We recognize that courts have not generally applied Remington Arms to 

Rule 13 sanctions because “[r]ule 13 sanctions are unlike discovery sanctions in 

that they directly concern the merits of the underlying action[,]” and “because the 

court must first decide whether a party’s pleading is groundless.” Jobe v. Lapidus,

874 S.W.2d 764, 769 (Tex. App.—Dallas 1994, writ denied) (McGarry, J., 

dissenting). Indeed, most post-judgment rule 13 sanctions involve sanctioning the 

losing party for filing a claim or defense with no basis in law or fact after that

claim has been resolved against the sanctioned party on the merits.

Here, however, at least two of the pleadings complained of—the motions to 

quash and the motion for continuance—were based on discovery abuse, of which 

Elgohary was aware before trial.

Regarding the motions to quash, the trial court’s order stated:

Defendant Aquarium Environments’ motions to quash were 

groundless . . . and brought in bad faith intended to cause unnecessary 

delay, needlessly increase the costs of litigation, and harass Elgohary. 

Specifically, the court finds that Blue’s continued refusal to 

communicate with opposing counsel in getting depositions scheduled 

and have parties that were under Blue’s and Aquarium Environments’ 

control to appear for properly noticed depositions caused Elgohary to 

legitimately schedule the requested depositions unilaterally. The 

court further finds that Blue’s filing and signing of these motions to 

quash were groundless and brought in bad faith and was intended to 

cause unnecessary delay and increase the costs of litigation for 

Elgohary, since Aquarium Environments and Blue made no attempt to
20

contact Elgohary to reschedule depositions or state a reasonable time 

and place in the motion with which the persons scheduled to appear 

would comply.

Regarding the motion for continuance, the trial court’s order stated:

This Court’s amended docket control order was entered on September

24, 2012 and gave Aquarium Environments additional discovery time 

as well as the opportunity to comply with the court’s directive 

regarding Elgohary’s motion to compel Ordeneaux’s deposition.

Aquarium Environments and Blue took no action to fulfill this court’s

directive to provide dates to Elgohary at which Ordeneaux might 

appear. Yet on the day of the trial Ordeneaux was present in this 

court and ready to testify, despite this court’s specific instruction that 

Ordeneaux was required to present himself for a deposition if he was 

to testify at trial. Aquarium Environments also made no effort in 

obtaining any further discovery in the addition six weeks that the 

discovery period was reopened and for which they prayed that the 

court grant a continuance back on August 3, 2012. Hence, it is clear 

from Aquarium Environments’ and Blue’s conduct that the motion for 

continuance was groundless and presented for an improper purpose, 

mainly to harass, cause unnecessary delay and needless increase in the 

cost of litigation to Elgohary.

As made clear from the trial court’s order, the basis for finding the motions to 

quash and the motion for continuance groundless and in bad faith was Blue’s and 

Aquarium Environments’ conduct during the discovery process. The rationale 

behind Remington Arms (applying Rule 215) and Findlay v. Olive (applying 

Chapter 10) is equally applicable in this situation, i.e., discovery disputes of which

the movant is aware pre-trial should be resolved pre-trial.

3 The failure to do so

3

Indeed, the dispute over Luff’s and Ordeneaux’s failure to appear for a deposition 

was resolved at trial when their testimony was prohibited. Elgohary received all 

the relief he requested in connection with this discovery abuse.
21

results in a waiver of the right to seek sanctions based on that discovery abuse 

post-trial.

Having decided that two of the five pleadings challenged will not support an 

award of post-trial sanctions, we consider what effect, if any, that has on the 

remaining portions of the sanctions order.

In Graves v. Tomlinson, the trial court awarded a global sanction of

$250,000 against the appellant “for all of Graves’ collective misconduct during the 

divorce proceedings.” 329 S.W.3d 128, 150 (Tex. App.—Houston [14th Dist.]

2010, pet. denied). On appeal, the court noted that it could not tell which portion 

of the global post-verdict sanction was attributable to discovery abuse, which was 

waived, thus it could not determine whether the sanctions amount related directly 

to sanctionable conduct. Id. at 151–152. As such, the sanction could not be 

upheld.

The same is true in this case. Because Elgohary did not show how much he 

was damaged by non-sanctionable conduct, i.e., discovery abuse, we cannot tell 

whether the amount of the sanctions awarded is directly related to any sanctionable 

conduct.

Accordingly, we sustain Aquarium Environments’ and Blue’s third issue on 

appeal. We vacate the sanctions order, reverse the portion of the final judgment 

that relates to sanctions, and render judgment that Elgohary take nothing on his
22

post-verdict sanctions. See Christus Health Gulf Coast v. Carswell, No. 01-11-

00292-CV, 2013 WL 4602388, *26 (Tex. App.—Houston [1st Dist.] Aug. 29,

2013, no pet.) (vacating sanctions rather than reversing and remanding when 

record does not show why the trial court chose to impose the amount of sanctions it 

did).

CONTEMPT OF COURT

In its fourth and fifth issues on appeal, Aquarium Environments contends the 

trial court abused its discretion by holding its counsel in contempt and assessing 

fines against him in two separate post-judgment hearings. However, a contempt 

judgment is reviewable only via a petition for writ of habeas corpus (if the 

contemnor is confined) or a petition for writ of mandamus (if no confinement is 

involved). Cadle Co. v. Lobingier, 50 S.W.3d 662, 671 (Tex. App.—Fort Worth

2001, pet. denied) (op. on reh’g) (citing In re Long, 984 S.W.2d 623, 625 (Tex.

1999) (op. on reh’g)). Decisions in contempt proceedings cannot be reviewed on 

direct appeal because contempt orders are not appealable, even when appealed 

along with a judgment that is appealable, as here. Id. (citing Metzger v. Sebek, 892

S.W.2d 20, 55 (Tex. App.—Houston [1st Dist.] 1994, writ denied); see also In re 

Office of Att’y Gen. of Tex., 215 S.W.3d 913, 915 (Tex. App.—Fort Worth 2007, 

orig. proceeding) (explaining why contempt judgments are not appealable and 

must be attacked by petition for writ of habeas corpus or for writ of mandamus).
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We cannot reach Aquarium Environments’ contempt-based complaints in this 

direct appeal, and we dismiss its fourth and fifth issues for want of jurisdiction.

CONCLUSION

We dismiss appellants’ complaints regarding contempt for want of 

jurisdiction. We vacate the trial court’s sanctions order, reverse the portion of the 

judgment awarding post-judgment sanctions, and render judgment that appellant 

take nothing on his claim for post-judgment sanctions. We affirm the remainder of 

the judgment.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Massengale and Huddle.