NO. 07-03-0461-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL C NOVEMBER 3, 2004

______________________________

In re: 657 TRUS T

_________________________________ FROM THE 99 TH DISTRIC T COURT O F LUBBOCK COUNTY; NO. 2003-521,359; HON. ANDREW J. KUPPER, PRESIDING

_______________________________ Memorandum Opinion

_______________________________ Before JOHNSON, C.J., and QUINN and REAV IS, JJ. Appellant

Glen D. Aaron, II, appeals a post-judg ment order through w hich he was ordered to pay, as sanctions for di scovery abuse, $50,000 “into theregistr y of this Co urt” and $4,000 as r eason able attorney ’s fees incurr ed by the esta te of Jacqueli ne Spencer Morgan (the Esta te). The t wo issues before us concern w hether

the trial court abused its discretion in so sancti oning Aaron. We reverse and render i n part and affirm in pa rt. Background The trial courtentered an agr eed judgment on M ay 8, 2003, dec laring the 657 Trust void. So too did it order Aaron, the tru stee and residu al beneficiary of the trust, to provide to Jacquelin e Spencer Mor gan an accounting, to deliver possession of all assets an d all evidence regarding assets and li abilities of the trust, toexecute all documents necessary1 Jacqueli ne SpencerMorgan is since deceased and t he repre sentat ive of her estat e is a part y t o the

ens uing proc eed ings

.

2 The Es tate co nte nd s th at th e c om pla ints reg ar din g th e s an ctio ns we re wa ive d b ec au se “[t]h er e is no evidence in either record that Appellant . . . ever ma de any objection, com plaint, or r eque st fo r consi d erat ion as to the trial court’s order requiring [t heir] payment . . . . ” See Keif er v. Conti

nental Air li nes, Inc. , 10 S.W .3d 34, 41 (Tex. App.–Houst on [14 th Dist .] 1999, pe t. denie d) (st ati ng tha t wh er e a n a ttor ne y fails to com plain o f th e s an ctio n and fai ls t o ask the t ri al cour t t o reconsi der i ts act ion, the attorn ey wai ves the complaint

on a ppe al). Yet, Aaron co m plained about the order levying sanctions in his motion to m odifythat he filed with the trial cou rt. Th us, w e co nclu de th at the issu e wa s pre ser ved

. 2 to effectuate the court’s orders, and to maintain the status quoof all assets until properly conveyed. 1 On July 3, 2003, the Estate filed a mo tion to compel and for sanctions contending that

Aar on fa i led to comply

with the court’s or

ders in its

judgment. The t rial courtgranted t he motion on July 22, 2003, and ordered ap pellant to “g ive his oral deposition and produce all documentsrequested i n the previ ously ser ved subpoena duces tecum” on July

23, 2003. On August 5, 2003, the Estate filed amotion for contempt and for sanctions due to appellant’s continued r efusal to obey the orders of the court. Af ter a hearing, the court granted the motion and ordered appell ant to pay $4,00 0 in attorney’s fees and $50,000 into the regist ry of the cour

t as an addition al sanction. Issue One - $50,000 Sanction In his firstissue, appell ant contendsthat the awar d of $50,000 constituted a fine or penalty and, therefore, w

as improper. So too does he a llege that the amount lacked all reasonable rel ationship to theconduct sough t to be recti fied. We sustain the issue. 2 The decision to sa nction a lit igant for dis covery abuse lies w ithin the dis cretion of the trial court; we may not in ter fe re with that decision unless it ev inces an instance of abused discretion

. Estate of Riggi ns, 937 S. W .2d 11, 16 (Tex. App.–Am arillo 1996, writ3

denied). Wh ether it does so depends upon whether it comports w ith controll ing rules and principles. See William s v. Akz o Nobel Chemicals, Inc. , 999 S.W.2d 836, 842 (Tex. App. –Tyler 1999, no pet.); Estate of Ri ggins, 937 S. W .2d at 16. Next, levying a discovery sanction that does not ex ist under thelaw constitutes a n instance of abuse. Ford Motor Co. v. Ty

son , 943 S.W .2d 5 27, 5 36 (T ex. Ap p.–D alla s 199 7, or ig. pr ocee ding) . Las tly, assessing a monetary fine is one such prohibited s anction. Id. ; see Braden v. Downey, 811 S.W.2d 922, 930 (Tex. 1991)(not ing th at th e tria l cou rt ma y, under Texas Rule of Civil Procedure 215(3), enter “such orders . . . as are just” but expr essly w ithholding comment on whether that language permits the trial court to levy a fine or pena lty). Here, the E stat e requested the trial court to levy sanctions, including reasonable at torney’s fees, against A aron due to his improper conduc t. And, whi le it presente d evidence (in the form of test imony uttere d by itscounsel of record) of the $4,0 00 attorney’s fees it incurre d, no evid ence was p resente d illustra ting t he amou nt of other expenses, if any, it incurr

ed as a result

of Aaron’s behav ior. Nor could i t be said that t he $50,000 was levied for the purpose of r eimbursing the Estate for its expenses given that the trial court directed Aaron to pay

the sum “into t he registr y of this Co urt” rather

th an to the Est ate. Thus, we can only conclude that in directing Aaron to pay the $50,000 to the court in addition to a $4,000 attorn ey’s fees, theformer sum was nothing shor

t of a monetary fine
or penalty. A n d, being su ch, the trial court not only lacked the authority to ass ess it but also abused its

discretion in ordering its payment.

Issue Two - Attorney’ s Fees In his second issue, appellant con tends that the trial court also abused its di scretion in assessing the $4,000 attorney’s fees. T his is purportedly so because he was ju stified4

in asserting his Fifth Amendment p rivil ege against self-incri mination and thefees “were not properly proven up i n court.” We overrul e the issue. Regarding the matter of “prov ing up” the fees, we have perused therecord before
us and discovered evidence supporting the award. As to the matter of self-incri mination, the evidence of record does not indicate that the amount i ncluded reimbur sement for the Estate’s counsel hav ing to appear atthe deposition whereat Aar on pled the Fifth. Nor can
we see how hi s Fifth Amendment ri ghts wer e implicated by

the Estate’s counsel having to journey to Midland to research d ocum ents that Aaron v oluntarily deliver ed to the FBI as opposed to the Estate. A ccord ingly, we reverse that port ion of the “Order Granting P laintiff’s Moti on for Contempt

and for Sanctions . . .” (signed on August 29, 2003) dir ecting Aar on to pay $50,000 into the c ourt ’s regi stry, render judg ment reliev ing Aaron from payi ng the $50,000 sum, and aff irm the order in all other respects.

Brian Quinn Justice