Memorandum Opinion of April 28, 2015, Withdrawn; Affirmed in Part and 

Reversed and Remanded in Part and Substitute Memorandum Opinion filed June 

18, 2015.

In The

Fourteenth Court of Appeals

NO. 14-13-00794-CV

NO. 14-13-00997-CV

ROBERT PRIMO, Appellant

V.

SCOTT ROTHENBERG, Appellee

On Appeal from the 133rd District Court

Harris County, Texas

Trial Court Cause Nos. 2012-68391-A & 2012-68391

SUBSTITUTE MEMORANDUM OPINION

We withdraw our memorandum opinion issued April 28, 2015, and we issue this 

substitute memorandum opinion in its place.

Robert Primo challenges orders arising from a fee dispute with his former 
2

attorney, Scott Rothenberg. These orders imposed death penalty sanctions against 

Primo and granted summary judgment in favor of Rothenberg. Collectively, these orders 

dispose of all issues and claims raised in the trial court. 

We affirm the trial court’s grant of a no-evidence summary judgment in 

Rothenberg’s favor with respect to Primo’s affirmative defenses and counterclaims. We 

reverse the trial court’s imposition of death penalty sanctions; we also reverse the trial 

court’s grant of a traditional summary judgment in favor of Rothenberg with respect to 

his attorney’s fees, which was predicated on the erroneous death penalty sanctions 

against Primo.

OVERVIEW

Rothenberg sued Primo to collect $57,999.63 in attorney’s fees alleged to be due 

for representing Primo in an underlying lawsuit. Primo pleaded a general denial along 

with several affirmative defenses and counterclaims. A series of complicated 

procedural steps unfolded as the dispute progressed. 

Rothenberg filed a no-evidence motion for summary judgment addressing 

Primo’s affirmative defenses and counterclaims, which the trial court granted in an 

order signed on May 13, 2013. Rothenberg also filed a motion for death penalty 

sanctions against Primo, which the trial court granted in a separate order signed on May 

22, 2013. 

The trial court’s sanctions order struck Primo’s pleadings (among other things)

and ordered Primo to pay Rothenberg $57,999.63 as “past due sums” for attorney’s fees 

under the “agreement in question” between Primo and Rothenberg relating to the 

underlying litigation.

The trial court signed another order on June 10, 2013, in which it (1) severed 

“Rothenberg’s claims to recover $57,999.63 in attorney’s fees” from the original trial 
3

court cause number 2012-68391; (2) directed the severed cause to be filed under cause 

number 2012-68391-A; and (3) directed that “the only live claims remaining for 

resolution [in the original trial court cause number] . . . are the amount of attorney’s 

fees” due to Rothenberg from Primo for litigating Rothenberg’s entitlement to the initial 

$57,999.63 fee amount. 

Primo appealed the orders filed under new cause number 2012-68391-A, and 

Primo’s appeal was assigned cause number 14-13-00794-CV in this court. This 

appellate cause number encompasses issues related to (1) the no-evidence summary 

judgment in Rothenberg’s favor with respect to Primo’s counterclaims and affirmative 

defenses; and (2) the death penalty sanctions against Primo. 

Following severance, Rothenberg filed a traditional summary judgment motion in

trial court cause number 2012-68391 asserting that he incurred $148,100 in attorney’s 

fees to prosecute his claim for the initial $57,999.63 fee amount. The trial court granted 

Rothenberg’s traditional summary judgment motion under the original trial court cause 

number in a “Final Judgment” signed on November 5, 2013. Primo appealed from the 

trial court’s traditional summary judgment order, and the appeal was assigned cause 

number 14-13-00997-CV in this court. 

Considering the procedural posture of this dispute and the related issues before 

us, we consolidate Primo’s appeals filed under cause numbers 14-13-00794-CV and 14-

13-00997-CV.

In addressing a multitude of arguments raised in this consolidated matter, we first 

determine whether the trial court’s no-evidence summary judgment in Rothenberg’s 

favor on Primo’s affirmative defenses and counterclaims can stand. Second, we 

determine whether the trial court acted within its discretion in granting death penalty 

sanctions against Primo. Third, we determine whether the trial court properly granted 

traditional summary judgment in favor of Rothenberg on his claim to recover additional 
4

attorney’s fees incurred in litigating the initial $57,999.63 fee dispute. 

The various legal disputes involving Primo have many arms and legs. 

Voluminous briefing is on file. The dispute at issue in cause numbers 14-13-00794-CV 

and 14-13-00997-CV is involved and contentious enough without re-fighting battles 

fought in yet other appellate matters. Accordingly, we decline the invitation to refer to, 

rely on, or take judicial notice of records in cause numbers 14-13-00492-CV, 14-13-

00495-CV, 14-13-00532-CV, 14-14-00417-CV, and 14-14-00458-CV. We will rely on 

the appellate records and filings in cause numbers 14-13-00794-CV and 14-13-00997-

CV. 

FACTUAL AND PROCEDURAL BACKGROUND

We begin with a detailed description of the procedural history leading to the

orders Primo challenges on appeal.

I. Rothenberg Represents Primo

Travelers Casualty and Surety Company sued Primo in July 2009 alleging causes 

of action for fraud, fraud in the inducement, conversion, unjust enrichment, indemnity 

for payment on bond, and theft of property. In turn, Primo sued Briar Green 

Condominium Association to recover under an indemnity agreement in connection with 

the claims asserted against him by Travelers; Primo sought to obtain from Briar Green 

the attorney’s fees and expenses he incurred in the Travelers suit, along with attorney’s 

fees and expenses incurred in prosecuting the indemnity suit. 

Porter Hedges LLP attorneys John Irvine and Blake Runions initially represented 

Primo. They withdrew in April 2012. Rothenberg began representing Primo in the 

indemnity suit on May 22, 2012, after Primo signed a written representation agreement

with Rothenberg. 

On October 9, 2012, Great American Insurance offered to settle Primo’s 
5

indemnity claim against Briar Green by paying Primo $365,000 in exchange for a full 

release. Rothenberg advised Primo to accept the settlement offer because there 

“exist[ed] a substantially less than 1% chance” that Primo would “receive a result as 

favorable or more favorable than the $365,000 settlement” after a trial. Primo rejected 

Rothenberg’s recommendation and the settlement offer. 

Before proceeding to trial in the indemnity case in October 2012, Rothenberg 

demanded that Primo pay (1) $30,221.30 to Rothenberg pursuant to the representation 

agreement for “past professional legal services rendered;” and (2) another $25,000 for 

“replenishment of the initial retainer to cover professional legal services and expenses 

of litigation incurred.” When Primo did not pay Rothenberg as requested by October 

28, 2012, Rothenberg required Primo to sign an agreement “on the morning of October 

29, 2012, immediately prior to jury selection” in the indemnity trial. Under the October 

29 agreement, Primo “unconditionally promis[ed] to pay the sum of $50,000 to 

[Rothenberg] at or before 5:00 p.m. on Friday, November 2, 2012.” 

The indemnity case proceeded to jury trial on October 29, 2012. The jury 

returned a verdict in favor of Primo and awarded him $100,194.89 in damages and 

attorney’s fees. It is undisputed that Primo did not pay the total amount of fees to which 

Rothenberg contended he was entitled.

II. Rothenberg Sues Primo

After Primo failed to pay Rothenberg in full for representing him in the Briar 

Green indemnity litigation, Rothenberg sued Primo on November 16, 2012, in trial court 

cause number 2012-68391. Rothenberg’s original petition alleged claims for breach of 

representation agreement, breach of written agreement, and suit on sworn account; he 

sought $57,999.63 in fees for his representation of Primo in the indemnity suit. Primo 

filed his original answer and counterclaim for “legal malpractice and related torts” on 

December 17, 2012.
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A. Discovery

Rothenberg filed his first set of interrogatories, first request for production, and 

requests for disclosure with his original petition.

On January 14, 2013, Primo filed (1) responses to Rothenberg’s requests for 

disclosure, and stated that he would supplement his responses when additional 

information became reasonably available; (2) responses to Rothenberg’s first set of 

interrogatories, including statements that he would supplement his responses when 

additional information became reasonably available; and (3) objections to requests for 

production. The objections asserted that Rothenberg sought information or documents 

that Rothenberg was “already in possession of or has equal access to,” or that the 

requested materials were not “relevant to the subject matter of the pending action, 

material or reasonably calculated to lead to the discovery of admissible evidence.” 

Primo also stated that he would supplement his responses when additional information 

became available.

Rothenberg filed a motion to compel under Texas Rule of Civil Procedure 215.1 

on January 16, 2013. Rothenberg stated that Primo’s responses and objections were due 

by 5:00 p.m. on January 14, 2013. Rothenberg argued that, although Primo’s responses 

and answers were “served by fax transmission that began at 4:58:31 p.m., on January 

14, 2013,” they nonetheless were “served late and untimely because the fax 

transmission was received in Rothenberg’s office” at 5:11 p.m. on January 14, 2013. 

Rothenberg argued that Primo had “waived his objections to the discovery that was 

propounded by Rothenberg.” 

Rothenberg also argued that Primo failed to make an “acceptable objection” when 

Primo objected that “this request seeks information or documents that [Rothenberg] is 

already in possession of or has equal access to.” Rothenberg argued, “This is a valid 

reason to compel production of documents even if a litigant contends that the documents 
7

are in the possession, custody or control of the requesting party. Additionally, the 

requesting party is entitled to understand what documents the producing party believes 

are responsive to each of the requests.” Rothenberg also argued that Primo’s promise to 

supplement “when additional information becomes reasonably available” was not a 

valid excuse for incomplete responses to each request for disclosure.

Rothenberg further contended that Primo (1) failed to object and fully respond to 

Interrogatories Nos. 1 through 6; (2) improperly responded to each of Rothenberg’s 

interrogatories with the statement that “Defendant will supplement this response when 

additional information becomes reasonably available;” (3) “improperly answered ‘none 

at this time’ with respect to recorded statements of Rothenberg” in response to 

Interrogatory No. 12; and (4) failed to “identify what licensed attorney, if any, has 

opined that the conduct set forth in Primo’s interrogatory answers constitutes a breach 

of the common law, statutory, regulatory, or administrative duty alleged to have been 

violated” in response to Interrogatory No. 13.

 Rothenberg filed his first amended petition on January 17, 2013, in which he 

asserted claims for breach of the representation agreement, breach of the written 

agreement, fraud, and suit on sworn account; he sought $57,999.63 in fees for 

representing Primo in the indemnity suit, along with attorney’s fees “incurred in any 

legal proceeding brought or commenced to enforce” the representation agreement and

the written agreement. On the same day, Rothenberg served on Primo his second set of 

interrogatories and second requests for production by certified mail, return receipt 

requested.1 The discovery requests were returned to Rothenberg; the returned envelope 

stated “return to sender,” “unclaimed,” “unable to forward.”

 1 Rothenberg requested that Primo produce (1) all “documents referenced in [his] responses” to 

Rothenberg’s second set of interrogatories; and (2) the “complete reporter’s record including exhibits, 

testimony, objection and all phases of trial and pretrial proceedings that were conducted in October of 

2012.”
8

On January 24, 2013, Primo filed a response to Rothenberg’s January 16, 2013 

motion to compel. Primo argued that (1) his discovery responses were timely; (2) 

Rothenberg was not prejudiced by Primo’s objection to production of documents 

already in Rothenberg’s possession; (3) any request for attorney’s fees contracts was

outside the scope of discovery; (4) his answers were complete, based on currently 

available information, and complied with Texas Rule of Civil Procedure 197.1; (5) 

Rothenberg impermissibly served a total of 73 interrogatories; (6) Rothenberg’s 

discovery requests were a pretext for seeking sanctions against Primo; (7) Rothenberg 

failed to file a certificate of conference prior to filing his motion to compel; and (8)

Rothenberg’s motion to compel was baseless.

The trial court signed an order on January 29, 2013, in which it (1) granted

Rothenberg’s motion to compel “in its entirety;” (2) overruled Primo’s objections to 

Rothenberg’s first set of interrogatories (numbers 1 through 13), and to Rothenberg’s 

first request for production (numbers 1 through 9); and (3) ordered Primo to provide 

“Rothenberg with full, complete, truthful and specific answers to each part and subpart 

of Rothenberg’s First Set of Interrogatories, Nos. 1-13, and Rothenberg’s First Request 

for Production, Nos. 1-9, such that . . . these amended responses are physically 

received” in Rothenberg’s law office by 3:00 p.m. on February 15, 2013.

Primo faxed his first supplemental responses to Rothenberg’s first request for 

production on February 15, 2013; Primo’s response to the nine document requests was:

“See uploaded file at http://www.legalmal.net/Rothenberg/2012-68391.zip and 

http://www.legalmal.net/Rothenberg/PrintBoxes.zip Defendant will supplement this 

response when additional information becomes reasonably available.” Primo also faxed 

his first supplemental responses to Rothenberg’s first set of interrogatories.

At a hearing on March 11, 2013, Primo asserted that Rothenberg did not serve a 

second request for production asking for the trial record of the Briar Green indemnity 
9

trial. Rothenberg argued that he (1) served Primo by certified mail, but the envelope 

was returned “unclaimed;” and (2) requested the indemnity trial record because Primo’s 

expert “is going to rely on that record and render his opinions.” The trial court ordered 

Primo to produce the trial record from the Green Briar indemnity suit to Rothenberg by 

March 31, 2013, as Rothenberg requested in his second request for disclosure. 

Primo filed his response to Rothenberg’s second set of interrogatories on March 

29, 2013, in which he objected to the three interrogatories because “the number of 

interrogatories greatly exceeds the maximum number of interrogatories allowed by 

Texas Rules of Civil Procedure.” Primo also filed responses to Rothenberg’s second 

request for production, in which he objected to the document request on the same 

ground stated in response to the second set of interrogatories; Primo further objected to 

the indemnity trial record request because “the document requested is the court 

reporter’s work product and easily available from [a] source other than Defendant, 

name[ly] the court reporter in the 281st Court.”

Rothenberg filed a supplement to his first amended petition with exhibits on 

March 31, 2013. He asserted (1) a “general denial to all elements of all claims” asserted 

in Primo’s counterclaim; (2) “fraud, illegality, judicial admission, and violation of 

public policy with respect to the counterclaims, defenses, and affirmative defenses” 

asserted by Primo; (3) “contributory negligence, comparative causation, sole cause, contort, new and independent cause, estoppel, and waiver;” (4) “the protections against the 

imposition of punitive or exemplary damages contained in Chapter 41 of the Texas Civil 

Practice & Remedies Code Annotated;” and (5) that “Primo’s request for punitive and 

exemplary damages violates applicable provisions of the Texas and United States 

Constitutions.”

Primo filed his “First Amended Answer and Counterclaim” on April 1, 2013, 

generally denying Rothenberg’s claims; asserting affirmative defenses of set-off, duress, 
10

fraud, fraudulent inducement, illegality, payment, and unclean hands; and asserting 

counterclaims for breach of fiduciary duty, violation of the Deceptive Trade Practices 

Consumer Protection Act, fraudulent misrepresentation, fraud, fraud in the inducement,

and negligent misrepresentation. Primo also pleaded for mental anguish damages, 

equitable disgorgement of fees, and exemplary damages.

Primo filed a designation on April 15, 2013, which identified Leonard James 

Meyer as a testifying expert.

Rothenberg faxed his “Expert Witness Designation for parties seeking affirmative 

relief” to Primo on April 15, 2013, which designated Rothenberg as a testifying expert.

B. No-Evidence Motion for Summary Judgment

Rothenberg filed a no-evidence summary judgment motion on April 22, 2013. 

Rothenberg sought summary judgment as to each of Primo’s pleaded affirmative 

defenses and counterclaims on the ground that “no evidence exists as to the following 

matters.” Rothenberg then listed 72 discrete factual assertions.

Primo filed a response to Rothenberg’s no-evidence summary judgment motion 

on May 6, 2013. Primo argued that a no-evidence summary judgment should not be 

granted because (1) “[i]t is impossible to summarize the Motion as it contains 72 

haphazard allegations of no evidence, none of which identify the cause of action or the 

element thereof which they challenge;” (2) adequate time had not been allowed for 

discovery; (3) Rothenberg’s motion was a “generic denial of Primo’s entire case;” and 

(4) Primo’s exhibits, including the affidavits of Primo and Primo’s expert witness, 

Leonard Meyer, constituted “competent probative evidence of each and every cause of 

action and each and every element thereof.” Primo attached the indemnity trial 

transcript to his no-evidence summary judgment response; the trial transcript as 

produced covers three days of trial and contains approximately 400 pages. 
11

Rothenberg filed a reply to Primo’s response to Rothenberg’s no-evidence 

summary judgment on May 10, 2013. Rothenberg contended in his reply that (1) 

Primo’s complaint that there was inadequate time for discovery was groundless because 

Primo did not ask for a continuance and had five months to take oral depositions of 

potential witnesses; (2) Primo’s complaint regarding the form of Rothenberg’s noevidence summary judgment motion was meritless because Rothenberg pointed out 

elements in each cause of action or affirmative defense for which there was no evidence; 

(3) Primo’s summary judgment response was legally improper because Primo filed over 

500 pages of summary judgment evidence in support of his response but did not “point 

out which part of his voluminous summary judgment exhibits provide evidence in

response to which of the 72 no-evidence points asserted;” (4) Primo’s expert evidence 

was conclusory and inadmissible because expert Meyer’s opinions were not relevant, 

were unreliable, lacked sufficient foundation and evidentiary support, and failed to 

disclose facts and materials forming the foundation of the opinions; and (5) exhibits two 

to 11 attached to Primo’s no-evidence summary judgment response constituted hearsay. 

In his reply, Rothenberg objected to the admission of Meyer’s expert opinions as

well as Primo’s affidavit opinions on grounds that they were conclusory, irrelevant, 

unreliable, and lacked foundational and evidentiary support. Rothenberg also objected 

to exhibits two through 11 on the ground that they were based on hearsay and were not 

subject to a hearsay exception.

Primo filed a sur-response to Rothenberg’s no-evidence summary judgment 

motion on May 13, 2013. In his sur-response, Primo withdrew his objection to the 

timing of Rothenberg’s no-evidence summary judgment. Primo argued that (1) 

Rothenberg’s motion was legally insufficient as a matter of law because it did not 

specify elements of Primo’s causes of action that were not supported by evidence; (2) 

Rothenberg made “conclusory boilerplate objections” to Meyer’s expert report; (3) 
12

Meyer’s expert report was non-conclusory, relevant, reliable, and based on sufficient 

foundational and evidentiary support; and (4) Primo’s exhibits did not constitute 

hearsay.

C. Motion for Death Penalty Sanctions

Rothenberg filed a “Motion For Death Penalty Sanctions, Or Alternatively, 

Motion For Sanctions And Motion To Compel Against Robert Primo” on May 3, 2013.

Rothenberg outlined “Primo’s discovery abuse” warranting death penalty sanctions as 

follows.

• In response to interrogatories, requests for production and disclosures Rothenberg 

filed with his original petition on November 16, 2012, Primo responded on 

January 14, 2013, “with some information but many groundless objections.”

• After the trial court heard Rothenberg’s motion to compel, it signed an order on 

January 29, 2013, granting the motion “in its entirety” and ordering Primo to 

provide “Rothenberg with full, complete, truthful and specific answers to each 

part and subpart” of Rothenberg’s first set of interrogatories and first request for 

production by February 15, 2013.

• Primo refused to accept delivery of Rothenberg’s second set of interrogatories 

and second request for production sent January 17, 2013, by certified mail, return 

receipt requested.

• Despite Primo’s complaint at a March 11, 2013 hearing that he was not served 

with Rothenberg’s January 17, 2013 discovery requests, and that he was asked to 

produce the trial record of the Briar Green indemnity suit “for free” to 

Rothenberg, the trial court ordered Primo to produce the indemnity trial record to 

Rothenberg by March 31, 2013.

• Instead of producing the trial record, Primo filed objections on March 29, 2013, 
13

stating that “the document requested is the court reporter’s work product and 

easily available from [a] source other than” Primo.

• In response to Rothenberg’s second set of interrogatories (numbers 1 through 3) 

and second request for production of documents, Primo objected to the 

interrogatories because the “number of interrogatories greatly exceeds the 

maximum number of interrogatories allowed by Texas Rules of Civil Procedure.”

Primo knew this objection was “frivolous and groundless” because Primo had 

made this same objection in response to Rothenberg’s original set of 

interrogatories and the trial court had overruled it; Primo’s refusal to respond to 

these interrogatories and request for production justified a presumption that 

Primo’s counterclaims and affirmative defenses addressed in these interrogatories 

and request for production lack merit.

• In response to Rothenberg’s second request for production of the complete 

indemnity suit reporter’s record, Primo objected that “the document requested is 

the court reporter’s work product and easily available from” another source. 

Primo knew this objection was “frivolous and groundless” because Primo had 

made this same objection at the March 11, 2013 hearing and the trial court 

ordered him to give Rothenberg the trial transcript by March 31, 2013.

• Even after the trial court overruled Primo’s objections to Rothenberg’s first set of 

interrogatories and first request for production and ordered Primo in its January 

29, 2013 order to provide Rothenberg full and complete answers, Primo served 

first supplemental responses on February 15, 2013, that were inadequate, 

incomplete, and in violation of the trial court’s order.

• With his first supplemental responses to eight requests for production, “Primo did 

not produce a single document.” Primo provided Rothenberg with access to a 

website on which the requested documents allegedly were stored among 80,000 
14

other documents; Primo also stated that he “will supplement this response when 

additional information becomes available,” which is not a permissible response 

under Texas Rule of Civil Procedure 196.2(b).

• In his first supplemental response to Rothenberg’s first set of interrogatories

asking Primo to identify opinion experts, Primo did not provide a full and 

complete answer to Interrogatory No. 1 as instructed when he answered he “will 

designate expert(s) when their review is complete and report made available and 

the expert made available for discovery. Defendant will supplement this 

Response to Interrogatory No. 13 when additional information becomes 

reasonably available.”

• In his first supplemental response to Rothenberg’s first set of interrogatories, 

Primo stated in response to Interrogatory No. 2 that he had not pled a DTPA 

action “at this time” and that he would supplement his response “when additional 

information becomes available.” Primo failed to supplement his discovery 

responses “in the month since he pleaded” his DTPA claim in his first amended 

answer on April 1, 2013.

• In his first supplemental response to Rothenberg’s first set of interrogatories 

asking Primo to identify acts or omissions constituting a breach of any Texas 

Disciplinary Rule of Professional Conduct, Primo stated in response to 

Interrogatory No. 5 that Rothenberg violated ten Texas Disciplinary Rules of 

Professional Conduct, and he “intends to file a complaint [against Rothenberg] 

with the Chief Disciplinary Counsel of the Texas State Bar.”

Rothenberg argued that the “most egregious of Primo’s numerous abuses of the 

discovery process is his withholding of the reporter’s record” of the Briar Green 

indemnity trial even after being ordered by the trial court to produce it by March 31, 

2013. Rothenberg contended that this conduct denied him the opportunity to (1) 
15

“review the materials that Primo’s testifying expert witness has reviewed in formulating 

his opinions;” and (2) “do a full and effective Daubert challenge to the relevance and 

reliability of Primo’s testifying expert witnesses opinions.” Rothenberg further argued 

that (1) “Primo’s numerous and serious abuses of the discovery process as set forth” in 

his motion justified a presumption that Primo’s claims or defenses lack merit; and (2) 

“this is one of the rare cases where the imposition of death penalty sanctions for 

numerous and serious violations of discovery orders is appropriate.”

Rothenberg requested that the trial court strike Primo’s live pleadings; render a 

default take-nothing judgment on all of Primo’s counterclaims; and render a default 

judgment on all of Rothenberg’s “affirmative causes of action, leaving only the issues of 

actual damages, exemplary damages and attorney’s fees to be awarded to 

[Rothenberg].” Alternatively, he asked the trial court to strike Primo’s testifying expert 

witness designation as a discovery sanction and order Primo to fully and completely 

answer discovery requests within ten days.

The trial court signed an order on May 9, 2013, which (among other things)

confirmed its oral order pronounced at the March 11, 2013, hearing instructing Primo to 

cooperate and allow Rothenberg to take Primo’s deposition by April 10, 2013, and 

instructing Primo to produce the reporter’s record of the Briar Green indemnity suit to

Rothenberg.

Primo filed his response to Rothenberg’s “Motion For Death Penalty Sanctions, 

Or Alternatively, Motion For Sanctions And Motion To Compel Against Robert Primo” 

on May 10, 2013. Primo argued as follows.

• Rothenberg’s authorities did not support death penalty sanctions because there are 

no “chronic grave discovery violations and disregard for the court’s increasingly 

stern prior sanctions over a span of four years.” 
16

• Primo’s prior failure to produce the reporter’s record of the indemnity trial did not 

deny Rothenberg the opportunity to make a Daubert challenge because Primo 

provided the reporter’s record on May 6, 2013, with his response to Rothenberg’s 

no-evidence summary judgment motion, and nothing in the docket control order 

prevented Rothenberg from challenging Primo’s designated expert.

• Primo answered each interrogatory and supplemented his responses by the trial 

court’s due date of February 15, 2013.

• When Rothenberg’s second set of interrogatories exceeded the maximum number 

of permissible interrogatories, Primo objected and Rothenberg did not file a 

motion to compel Primo to answer or “make an attempt to resolve the matter 

amicably.” 

• Despite Primo’s objections to the excessive number of interrogatories, Primo 

served Rothenberg with supplemental responses to these interrogatories.

• Primo timely served responses on Rothenberg. Although Primo “did not serve 

the responsive documents on Rothenberg,” Primo “did make the documents 

available for inspection at Rothenberg’s leisure” and “Rothenberg did so inspect 

them for weeks.” 

• All the documents Primo produced already were in Rothenberg’s possession.

• Primo allegedly served Rothenberg with the indemnity trial transcript but did not 

specify a date of service; Primo also attached the trial transcript to his noevidence summary judgment response on May 6, 2013.

• Primo provided the name of his expert on January 29, 2013.

• Although Primo did not supplement his discovery responses after pleading a 

DTPA claim on April 1, 2013, the pleading is “clearly and fully described in the 
17

expert’s report” and in Primo’s response to Rothenberg’s no-evidence summary 

judgment motion.

• Primo made all necessary supplementations.

• Primo had not filed a disciplinary complaint against Rothenberg.

• The trial court never had sanctioned Primo for any alleged discovery abuse and 

Rothenberg failed to demonstrate “any discovery abuse whatsoever” or provide

“any authority that any conduct by [Primo] in this lawsuit is sanctionable, let 

alone to the extreme level of death penalty sanctions.”

Primo attached two exhibits to his response. Exhibit One contained Primo’s 

supplemental responses to Rothenberg’s second requests for production; Primo claimed 

that all documents referenced in Primo’s supplemental responses to Rothenberg’s 

second set of interrogatories,

2 “except the trial transcript, have been produced and/or 

Rothenberg admitted to being in possession thereof.” Primo also stated that the 

indemnity trial record “is being produced herewith” subject to his previous objection 

that the indemnity trial record “is easily available for purchase” from the court reporter. 

Exhibit Two contained Primo’s second supplemental responses to Rothenberg’s first set 

of interrogatories; Primo provided supplemental answers to each subpart to 

Interrogatory No. 2 and provided an answer to Interrogatory No. 13. 

D. Trial Court Rulings on No-Evidence Summary Judgment and Death 

Penalty Sanctions

At 10:00 a.m. on May 13, 2013, the trial court held a hearing on Rothenberg’s 

motion for death penalty sanctions. Primo did not appear at the 10 a.m. hearing. At the 

hearing, Rothenberg made the following argument in support of his death penalty 

sanctions motion:

 2 We have not found supplemental responses to Rothenberg’s second set of interrogatories filed 

by Primo in the record before us. 
18

This is a case where I have outlined in my motion for death penalty 

sanctions eight different matters in which I have requested discovery in this 

case. Your Honor has signed orders or stated orders on the record 

compelling that discovery and Dr. Primo has either failed or refused to 

comply with Your Honor’s orders. Normally death penalty sanctions are 

something that are difficult to support because you have to show that it’s an 

indication — the abuse of the discovery process are such that it’s an

indication that the other side’s claims lack merit. In this case, the 

discovery that I requested goes to the very heart of his case. Dr. Primo 

filed a legal malpractice lawsuit against me alleging that I mishandled a 

jury trial in the 281st District Court. I requested the trial record from that 

case which Dr. Primo ordered and paid for and provided to his expert 

witness. Dr. Primo objected to providing it. Your Honor compelled him to

provide it. Dr. Primo then refused to provide it again by the deadline. And 

most cynically of all, a week before today, after Your Honor ordered him 

to produce it in response to my no[-]evidence motion for summary 

judgment, he did produce it. But it was too late for me to give it to an 

expert to evaluate the case in order to obtain expert testimony to protect 

myself. And so, Your Honor, given the eight discovery abuses that I’ve 

outlined in my motion, all of which are supported by Your Honor’s either 

written or oral orders during hearings, Dr. Primo’s repeated abuses of the

discovery process in this case clearly establish the lack of merit to his 

claims. And therefore, I’m requesting a death penalty sanction of the 

striking of his pleadings and the only thing that would be left in this case 

after that would be a prove-up of my damages, attorney’s fees and costs of 

court. And if I decide to go forward on my fraud claim for punitive 

damages that as well, but I would certainly reevaluate that in light of what 

Your Honor does here today.

The trial court stated that it would grant Rothenberg’s motion and strike all of Primo’s 

pleadings. 

At 11:00 a.m. on the same day, the trial court held a hearing on Rothenberg’s noevidence summary judgment motion. Primo appeared at the 11:00 a.m. hearing. When 

the trial court informed Primo that it already had conducted a hearing on Rothenberg’s 

motion for death penalty sanctions at 10:00 a.m., Primo stated that he believed

Rothenberg’s motions for death penalty sanctions and no-evidence summary judgment 

both were set for 11:00 a.m. Rothenberg stated that he had sent Primo notice through 
19

ProDoc.com, which affirmatively showed that the hearing on the motion for death 

penalty sanctions was noticed for 10:00 a.m., and the hearing on the no-evidence 

summary judgment motion was noticed for 11:00 a.m. Rothenberg then objected to the 

trial court considering the affidavit and expert report of Primo’s expert, Meyer, because

the court struck them as part of the death penalty sanctions. The trial court sustained 

Rothenberg’s objection and stated that it would grant his no-evidence summary 

judgment motion. 

After the hearing, the trial court signed an order on May 13, 2013, in which it 

granted Rothenberg’s motion for no-evidence summary judgment with respect to 

Primo’s defenses and counterclaims. The trial court stated that (1) Primo would take 

nothing against Rothenberg on all causes of action and counterclaims set forth in 

Primo’s first amended answer and counterclaim; (2) “[t]his is an interlocutory order 

because the issues of the amount of Rothenberg’s recovery against Primo for attorney’s 

fees” in the Briar Green indemnity suit and “Rothenberg’s causes of action for fraud, 

attorney’s fees, interest and costs of court in this lawsuit remain pending;” and (3) all 

evidentiary objections set forth in Rothenberg’s reply to Primo’s no-evidence summary 

judgment response are sustained. On its face, this order does not reference sanctions or 

recite that the no-evidence summary judgment is being granted pursuant to a request for 

death penalty sanctions.

The trial court signed a separate “Order and Interlocutory Judgment” on May 22, 

2013. The trial court stated that it considered Rothenberg’s motion for death penalty 

sanctions with the attached written exhibits, applicable law, all prior proceedings in the 

lawsuit, the May 13, 2013 hearing on the motion for death penalty sanctions, and 

Primo’s absence at the May 13, 2013 hearing despite receiving proper notice of the 

hearing. Based upon these considerations, the trial court made 52 findings of fact and 

five conclusions of law along with nine rulings. The trial court (1) struck Primo’s “First 
20

Amended Answer and Counterclaim;” (2) struck Primo’s affidavit as verification filed 

with Primo’s “First Amended Answer and Counterclaim;” (3) struck Primo’s “Original 

Answer and Counterclaim” and accompanying affidavit verifying the pleading; (4) 

struck the affidavit and expert witness report of Leonard Meyer; (5) ordered “Primo not 

to file any further answer, amended answer, supplemental answer, counterclaim, 

amended counterclaim, supplemental counterclaim, third-party petition, or any other 

pleading in the above-captioned and numbered lawsuit;” (6) ordered that Primo take 

nothing on all claims and counterclaims he asserted or could have asserted; (7) ordered

that all of Primo’s “affirmative defenses and verified pleadings are without merit and 

overruled in their entirety;” (8) ordered that Rothenberg recover from Primo 

$57,999.63, “representing past due sums under the agreement [between Rothenberg and 

Primo] in question plus contractually agreed interest” and court costs; and (9) ordered

that “the only matters remaining for decision in this case are the amount of attorney’s 

fees to be awarded to Scott Rothenberg for handling the prosecution and defense of all 

claims, demands, and causes of action in the above-captioned and numbered lawsuit, as 

well as the amount of exemplary damages to be awarded to Scott Rothenberg from 

Robert Primo as a result of Robert Primo’s fraud in entering into the October 29, 2012 

written agreement without any intent to comply therewith.”

E. Severance

Rothenberg filed a motion to sever, and the trial court signed a severance order on

June 10, 2013. The trial court ordered that (1) Rothenberg’s “claims to recover 

$57,999.63 in attorney’s fees due and owing” from Primo were “severed from this 

action, with such severed claims and causes of action to be filed under Cause No. 2012-

68391-A;” (2) “the only live claims remaining for resolution in the above-captioned and 

numbered lawsuit (2012-68391) are the amount of attorney’s fees to Scott Rothenberg 

from Robert Primo for handling the prosecution and defense of all claims, demands, and 
21

causes of action in the above-captioned and numbered lawsuits (2012-68391 and 2012-

68391-A), as well as the amount of exemplary damages to Scott Rothenberg from

Robert Primo as a result of Robert Primo’s fraud in entering into the October 29, 2012 

written agreement without any intent to comply therewith;” (3) various pleadings and 

documents related to the severed claims were to be filed under cause number 2012-

68391-A; (4) the “Order and Interlocutory Judgment” of May 22, 2013, was a final 

judgment for purposes of appeal; and (5) Primo would pay any costs “associated with 

the severance in question” upon entry of a final judgment in cause number 2012-68391.

Following severance, Primo timely filed a motion for new trial under the severed

cause number 2012-68391-A on July 10, 2013. See Tex. R. Civ. P. 329b. Primo argued 

that the trial court abused its discretion by imposing death penalty sanctions without 

first considering the availability of less stringent discovery sanctions, and whether lesser 

sanctions would have promoted compliance with discovery. The trial court signed an 

order denying Primo’s motion for new trial on August 19, 2013.

F. Additional Proceedings

Rothenberg filed a notice of partial non-suit in cause number 2012-68391 on July 

9, 2013, in which he stated that he “hereby non-suits without prejudice his claim for 

‘exemplary damages to be awarded to Scott Rothenberg from Robert Primo as a result 

of Robert Primo’s fraud in entering into the October 29, 2012 written agreement without 

any intent to comply therewith.’ Remaining pending in the above-captioned and 

numbered matter is the amount of trial court and conditional appellate attorney’s fees to 

be awarded to Scott Rothenberg for handling the prosecution and defense of all claims, 

demands, and causes of action in the above-captioned and numbered lawsuit.” The trial 

court signed Rothenberg’s notice of partial non-suit on July 19, 2013.

On August 27, 2013, Rothenberg filed a verified motion for entry of additional 

findings of fact and conclusions of law “in support of the [c]ourt’s May 22, 2013 order 
22

of case-dispositive sanctions and its June 10, 2013 Order.” Rothenberg argued that, 

after the trial court granted death penalty sanctions on May 22, 2013, Primo violated 

Texas Rules of Civil Procedure 203.3(c) and 203.4 because “Primo has had actual 

possession of the original deposition transcript [of attorney John Irvine], the exhibits 

from the oral deposition and the videotape from the oral deposition for over a month and 

a half (transcription and exhibits) and three months (videotape).” Rothenberg

contended that Primo denied “access to the deposition transcript, signed errata sheet, 

exhibits and video and audio tape throughout that time.” Rothenberg also argued that 

Primo’s behavior before and after the imposition of death penalty sanctions established

that no lesser sanction would have deterred Primo from violating the Texas Rules of 

Civil Procedure. Rothenberg claimed that Primo made several misrepresentations to the 

trial court at an August 26, 2013 hearing. Rothenberg asked the trial court to 

“reconsider the case dispositive sanctions set forth in its May 22, 2013 Order” and 

“order that all relief granted” in that order “is necessary and proper.”

Primo timely filed a notice of appeal in severed cause number 2012-68391-A on 

September 6, 2013, in which he appealed from the (1) May 13, 2013 order granting 

Rothenberg’s amended no-evidence summary judgment motion; and (2) May 22, 2013 

order granting Rothenberg’s motion for death penalty sanctions against Primo. This 

notice of appeal was timely because it was filed within 90 days of the date when the 

challenged order became final and appealable due to the June 10, 2013 severance order. 

See Tex. R. App. P. 26.1.

After a hearing on September 16, 2013, the trial court signed “Additional 

Findings Of Fact And Conclusions Of Law.” The trial court stated that it granted 

Rothenberg’s verified motion for entry of additional findings of fact and conclusions of 

law; it then made 24 findings of fact and four conclusions of law. The trial court also 

stated: 
23

Based upon Robert Primo’s conduct as set forth in this Order, as 

established by the exhibits to Rothenberg’s August 27, 2013 motion, and 

by the Court taking judicial notice of the Court’s entire file in Cause Nos. 

2012-68391 and Cause No. 2012-68391-A, as well as all proceedings in 

those two lawsuits to-date, and in reliance thereupon, the Court hereby 

RECONSIDERS the case dispositive sanctions set forth in its May 22, 

2013 Order and Interlocutory Judgment, as well as the Court’s June 10, 

2013 Order. Based upon all of the foregoing, the Court hereby orders that 

all relief granted in the Court’s May 22, 2013 Order and Interlocutory 

Judgment and in its June 10, 2013 Order, is necessary and proper to the 

efficient administration of justice, is legally appropriate under all 

circumstances presented, complies with the due process requirements of all 

parties to this lawsuit, and shall stand without any change whatsoever.

The trial court’s September 16, 2013 “Additional Findings Of Fact And Conclusions Of 

Law” were filed under cause number 2012-68391 and the severed cause number 2012-

68391-A.3

G. Rothenberg’s Traditional Motion for Summary Judgment

Rothenberg filed a traditional summary judgment motion in cause number 2012-

68391 on October 2, 2013; this motion addressed Rothenberg’s claim to additional 

attorney’s fees incurred in litigating his entitlement to the initial $57,999.63 fee. 

Rothenberg asserted his entitlement to an additional fee award based on the adjudication 

of the initial $57,999.63 fee in his favor in the May 22, 2013 death penalty sanctions 

order. He stated that his “summary judgment is based upon Exhibit A- the affidavit of 

Scott Rothenberg, Exhibit B- the curriculum vitae of Scott Rothenberg, and Exhibit Cbilling records of Scott Rothenberg pertaining to the handling of Cause No. 2012-

68391, ‘Scott Rothenberg v. Robert Primo,’ in the 133rd Judicial District Court of and 

for Harris County, Texas and in the courts of appeals up through October 2, 2013.” 

Rothenberg argued that exhibits A, B, and C established as a matter of law his

 3 The record before us does not contain a “June 10, 2013 Order” of additional discovery 

sanctions as referred to in the trial court’s “Additional Findings Of Fact And Conclusions Of Law” 

signed on September 16, 2013.
24

entitlement to recover $148,100 from Primo pursuant to chapter 38 of the Texas Civil 

Practice and Remedies Code “for professional legal services he performed in the trial 

court and in the court of appeals up through October 2, 2013.”

Primo filed a response to Rothenberg’s traditional summary judgment motion on 

October 28, 2013. Primo argued that the trial court should not grant Rothenberg’s 

summary judgment motion because (1) the attorney’s fees amount Rothenberg sought to 

recover was a question of fact necessitating an evidentiary hearing, and affidavits in 

support of attorney’s fees were “insufficient to prove attorney’s fees;” (2) Primo raised a 

genuine issue of material fact that Rothenberg’s attorney’s fees were not reasonable and 

necessary in the form of an affidavit from Primo’s expert, Meyer, who found 

Rothenberg’s invoices and amounts “to be grossly inflated, false, and largely 

unnecessary” and who also found Rothenberg’s “pleadings and briefs to be 

unnecessarily verbose, not diligently prepared with large portions pasted and re-pasted 

over and over;” (3) Rothenberg’s summary judgment evidence of time sheets “must be 

stricken due to Rothenberg’s undue withholding of that material evidence of attorney’s 

fees;” (4) a claim for attorney’s fees cannot be maintained independently in a separate 

lawsuit from the main claim for breach of contract and sworn account; (5) the single 

action rule prohibited the severance of Rothenberg’s claim for attorney’s fees, and, by 

seeking a severance, Rothenberg forfeited his attorney’s fees claim in this lawsuit; and 

(6) res judicata barred Rothenberg’s attorney’s fees claim in this lawsuit. 

Rothenberg filed a reply to Primo’s response to Rothenberg’s summary judgment 

motion on November 1, 2013, in which he stated that “Primo improperly objected to 

and refused to answer a direct question regarding Primo’s present net worth” during a 

court-ordered deposition; “forc[ed] Rothenberg to move to compel the information from 

Primo;” and the trial court therefore entered the following sanctions order on June 10, 

2013:
25

The Court finds that Robert Primo has not learned a lesson regarding 

acceptable and unacceptable conduct in pretrial discovery from the 

imposition of death penalty sanctions against him in this case. In so 

finding, the Court considers all of Robert Primo’s abuses of the discovery 

process pertaining to seeking and resisting pretrial discovery in this 

lawsuit, as reflected in Scott Rothenberg’s motion for the imposition of 

death penalty sanctions, and otherwise in the file of this lawsuit. 

Accordingly, the Court ORDERS that at time of trial, Robert Primo is 

precluded from presenting evidence or arguments opposing Scott 

Rothenberg’s claims for attorneys’ fees to collect attorneys’ fees, and for 

the recovery of exemplary damages. This sanction is ordered pursuant to 

Texas Rule of Civil Procedure 215.2(b)(4) as a result of Robert Primo’s 

refusal to answer the deposition questions set forth above, and is ordered in 

light of Robert Primo’s history of repeatedly violating this Court’s orders 

pertaining to pretrial discovery in the above-captioned and numbered 

lawsuit.

Rothenberg then objected to the trial court considering all exhibits to Primo’s summary 

judgment response based upon the trial court’s June 10, 2013 sanctions order. 

Rothenberg also objected to the trial court considering Meyer’s affidavit because it is 

“conclusory, without proper factual support and methodological analysis, is based upon 

the bare ipse dixit of Meyer, and therefore, is of no legal effect.” 

Primo filed a “Motion to Strike Rothenberg’s Evidence in Support of His Motion 

for Summary Judgment” on November 1, 2013. Primo argued that Rothenberg 

produced his fee report for the first time on October 2, 2013, but “has been in 

possession of that evidence throughout the litigation and has failed to produce it in 

discovery despite numerous requests and his duty to supplement his responses.” Primo 

argued that “Rothenberg’s withholding of his invoices by 257 days after his Plaintiff’s 

First Amended Petition filed on January 17, 2013[,] in which he claimed attorney’s fees 

for the first time, completely dwarfs by nearly fourteen-fold” when compared to Primo’s 

failure to produce the Briar Green indemnity suit record “merely 19 days after the 

expert designation.” Primo also asked the trial court to strike Rothenberg’s affidavit

attached to his summary judgment motion as being conclusory and irrelevant.
26

On November 4, 2013, Primo filed a sur-reply in opposition to Rothenberg’s 

summary judgment motion, arguing that (1) Rothenberg incorrectly equated a summary 

judgment proceeding to a trial; (2) Meyer’s affidavit raised fact issues that Rothenberg’s 

fees are unreasonable and unnecessary; (3) Meyer methodically developed every 

opinion he stated in his affidavit; (4) the June 10, 2013 sanctions order Rothenberg cited 

in his reply was irrelevant with regard to his summary judgment motion; and (5) the trial 

court’s sanction pronounced in its June 10, 2013 order constitutes an abuse of discretion 

by the trial court.

H. The Trial Court’s Grant of Traditional Summary Judgment

The trial court signed a “Final Judgment” in cause number 2012-68391 on 

November 5, 2013. In this judgment, the trial court (1) incorporated language from its 

June 10, 2013 sanctions order; (2) stated that Primo filed a writ of mandamus regarding 

the trial court’s June 10, 2013 sanctions order “but received no relief . . . whatsoever;”

(3) stated that a summary judgment is considered to be a trial under Texas law; (4) 

sustained Rothenberg’s objection to Primo’s evidence attached to Primo’s response to 

Rothenberg’s summary judgment motion and struck Primo’s evidence; (5) sustained 

Rothenberg’s objection to the trial court considering Meyer’s affidavit as evidence 

because the affidavit is “conclusory, without proper factual support and methodological 

analysis, [and] relies upon the bare ipse dixit of Meyer;” (6) concluded that “there are no 

genuine issues of material fact, and that Rothenberg is entitled to judgment as a matter 

of law;” and (7) ordered that Rothenberg recover $148,100 in “reasonable attorney’s 

fees” from Primo under chapter 38 for “professional legal services performed in the trial 

court and in the courts of appeals up through October 2, 2013,” as well as attorney’s 

fees in the event Primo unsuccessfully pursues appellate relief.

Primo timely filed a notice of appeal in cause number 2012-68391 on November 

6, 2013, appealing the trial court’s “Final Judgment” of November 5, 2013.
27

ANALYSIS

We first address the parties’ arguments in cause number 14-13-00794-CV 

regarding the propriety of (1) a no-evidence summary judgment on Primo’s affirmative 

defenses and counterclaims; and (2) death penalty sanctions imposed against Primo. 

Next, we address the parties’ arguments in cause number 14-13-00997-CV regarding 

the propriety of a traditional summary judgment in favor of Rothenberg on his claim to 

recover additional attorney’s fees incurred in litigating the initial $57,999.63 fee 

dispute.

Appeal in Cause No. 14-13-00794-CV

I. No-Evidence Summary Judgment on Primo’s Affirmative Defenses and 

Counterclaims

We begin by focusing on Primo’s second issue challenging the trial court’s grant 

of Rothenberg’s no-evidence summary judgment motion. We focus on this order first

because the no-evidence summary judgment was signed before the imposition of death 

penalty sanctions. By its terms, the no-evidence summary judgment order does not 

reference or depend on the propriety of death penalty sanctions imposed against Primo.

Primo argues that the trial court “abused [its] discretion” by signing an order 

granting Rothenberg’s no-evidence summary judgment motion on May 13, 2013, 

because (1) doing so violated a docket control order; (2) Rothenberg’s motion was 

“legally insufficient;” (3) the trial court improperly struck Primo’s summary judgment 

evidence; and (4) Primo “brought forth immensely more than a scintilla of competent 

evidence.” 

A. Standard of Review

We review a summary judgment de novo. Duerr v. Brown, 262 S.W.3d 63, 68 

(Tex. App.—Houston [14th Dist.] 2008, no pet.) (citing Valence Operating Co. v. 

Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)). In a no-evidence summary judgment, the 
28

movant represents that there is no evidence of one or more essential elements of the 

claims for which the non-movant bears the burden of proof at trial. Tex. R. Civ. P. 

166a(i). We sustain a no-evidence summary judgment when (a) there is a complete 

absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence 

from giving weight to the only evidence offered to prove a vital fact; (c) the evidence 

offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence 

conclusively establishes the opposite of the vital fact. King Ranch, Inc. v. Chapman, 

118 S.W.3d 742, 751 (Tex. 2003). 

Less than a scintilla of evidence exists when the evidence is so weak as to do no 

more than create a mere surmise or suspicion of a fact. Id. On the other hand, more 

than a scintilla of evidence exists when reasonable and fair-minded people could differ 

in their conclusions based on the evidence. Id. To raise a genuine issue of material fact, 

the evidence must exceed mere suspicion. Ford Motor Co. v. Ridgway, 135 S.W.3d 

598, 601 (Tex. 2004). “Evidence that is so slight as to make any inference a guess is in 

legal effect no evidence.” Id. A party may move for a no-evidence summary judgment 

after an adequate time for discovery has passed. Id. 

B. Timing of Motion

Primo first argues that the trial court violated its docket control order when it 

heard Rothenberg’s no-evidence summary judgment motion before the deadline for 

hearing dispositive motions and pleas. According to Primo, the docket control order 

“expressly states” that Rule 166a(i) motions could not be heard before June 10, 2013. 

Primo’s contention is incorrect. The docket control order states: “If subject to 

interlocutory appeal, dispositive motions or pleas must be heard by” June 10, 2013. The 

docket control order sets no deadline for the trial to hear “Summary Judgment motions 

not subject to an interlocutory appeal” or “Rule 166a(i) motions.” Accordingly, the trial 

court did not violate its docket control order, and we overrule Primo’s issue in that 
29

regard.

Primo also argues that the trial court improperly granted Rothenberg’s noevidence summary judgment motion because Primo had inadequate time for discovery. 

In his response to Rothenberg’s no-evidence summary judgment motion, Primo argued 

that he did not have adequate time for discovery. Primo argued that Rothenberg’s 

“[m]otion must be denied and/or continued until such time as discovery is complete in 

this matter.” Primo withdrew this complaint in his sur-response to Rothenberg’s noevidence summary judgment motion. Primo stated: “[Primo] withdraws his objection 

as to the improper timing of [Rothenberg’s] Motion as there is ample evidence 

presented even in the face of Rothenberg[’s] numerous antics as to press for summary 

judgment . . . .”

Having withdrawn his objection to the timing of Rothenberg’s no-evidence 

summary judgment motion, Primo cannot contend on appeal that he had inadequate time 

for discovery. We overrule Primo’s issue in that regard.

C. Sufficiency of Motion

Primo contends that Rothenberg’s motion was “legally insufficient” because it

“challenged 72 no-evidence ‘items’” that do “not constitute essential elements and do 

not state the cause of action they purport to attack the elements of.” Primo nonetheless

concedes on appeal that, of the “72 items,” at least 19 can be “matched to an actual 

essential element of a cause of action pleaded by [Primo].” In light of this concession, 

we cannot conclude that the no-evidence summary judgment motion was insufficient for 

failure to challenge elements of causes of action Primo pleaded in this case. We 

overrule Primo’s issue in this regard. 

D. Sufficient Probative Evidence

Primo also contends that the trial court erred “by granting no-evidence summary 
30

judgment when [Primo] brought forth immensely more than a scintilla of competent 

evidence.” 

Primo’s brief sets out the standard for reviewing a no-evidence summary 

judgment on appeal. Primo’s brief then asserts in conclusory fashion that “[i]t is clear 

that [Primo] brought forth more than a scintilla of probative evidence free of procedural 

defects or any contradiction.” Primo’s brief neither cites nor identifies any specific 

summary judgment evidence attached to his response to raise a genuine issue of material 

fact. Primo’s brief does not explain how his summary judgment evidence raises a 

genuine issue of material fact with respect to the 19 elements Rothenberg challenged in 

his no-evidence summary judgment motion. Thus, Primo’s issue presents nothing for 

our review. See Tex. R. App. P. 38.1(i) (“The brief must contain a clear and concise 

argument for the contentions made, with appropriate citations to authorities and to the 

record.”); see also Rivera v. Countrywide Home Loans, Inc., 262 S.W.3d 834, 842 (Tex. 

App.—Dallas 2008, no pet.); Hope’s Fin. Mgmt. v. Chase Manhattan Mortg. Corp., 172 

S.W.3d 105, 107-08 (Tex. App.—Dallas 2005, pet. denied).

We overrule Primo’s challenges to the trial court’s grant of Rothenberg’s noevidence summary judgment motion in issue two.

4

 4 In light of our disposition of Primo’s sufficiency argument, we need not address Primo’s 

additional contention that the trial court “abused its discretion” by striking his summary judgment 

evidence “en masse” because (1) there were “no procedural defects” in Primo’s summary judgment 

evidence; (2) Rothenberg’s objections to Primo’s summary judgment evidence were not sufficiently 

specific; and (3) the evidence Primo attached to his no-evidence summary judgment response was 

based on well-established methodology, was not conclusory, and did not constitute hearsay. A

successful challenge of Primo’s complaint that the trial court erroneously struck his summary 

judgment evidence would be inconsequential; Primo failed to explain in his appellate brief how his 

summary judgment evidence raised a genuine issue of fact on any of the elements Rothenberg attacked 

in his no-evidence summary judgment motion. See Tex. R. App. P. 38.1(i). We overrule Primo’s issue 

in this regard.

We also reject Primo’s additional contention that the trial court abused its discretion by issuing 

“a void order of summary judgment on claims already adjudicated by sanction.” Primo argues that, 

after the trial court “issued” an “oral order on the record in open court” granting Rothenberg’s death 
31

II. Death Penalty Sanctions

We now turn to Primo’s first issue contending that the trial court abused its 

discretion when it acted to “impose death penalty sanctions, default judgment, strike 

testifying expert witness designation, and prohibit future pleadings in the absence of 

prior lesser sanctions; absence of any prejudice; absence of bad faith or flagrant 

disregard; absence of delays or burdens on the court system; or absence of any direct 

nexus between the conduct and the sanction imposed.” 

Both the motion for death penalty sanctions and the order granting death penalty 

sanctions for discovery abuse refer only to Texas Rule of Civil Procedure 215.2(b). The 

appellate briefing does not refer to any other rule under which the trial court granted 

sanctions for discovery abuse. Therefore, we focus on Rule 215.2(b) in analyzing the 

propriety of death penalty sanctions. 

Before addressing Primo’s contentions, we outline the applicable standard of 

review and law governing an inquiry into whether the trial court’s sanctions were 

“manifestly unjust and excessive.” 

 

penalty sanctions motion, the trial court had no jurisdiction to sign its order granting Rothenberg’s noevidence summary judgment motion on all of Primo’s counterclaims and affirmative defenses. We 

note that the May 13, 2013 order granting a no-evidence summary judgment makes no reference to 

sanctions. The May 13, 2013 order recites that the trial court considered Rothenberg’s no-evidence 

summary judgment motion; the order does not recite that the trial court considered Rothenberg’s 

separately filed motion for death penalty sanctions. The subsequent sanctions order signed on May 22, 

2013, recites that the trial court already had signed an order granting a no-evidence summary judgment 

on May 13, 2013, with respect to Primo’s affirmative defenses and counterclaims. Primo does not 

explain how the timing and content of the May 13, 2013 no-evidence summary judgment order and the 

May 22, 2013 sanctions order implicate the trial court’s subject matter jurisdiction. We discern no 

jurisdictional impediment based on these orders. In any event, Primo does not cite any authority in 

support of his argument that the trial court abused its discretion by “re-dismiss[ing] claims already 

dismissed.” See Tex. R. App. P. 38.1(i) (“The brief must contain a clear and concise argument for the 

contentions made, with appropriate citations to authorities and to the record.”). We overrule Primo’s 

third issue. 
32

A. Standard of Review and Governing Principles

Discovery sanctions serve three legitimate purposes: (1) securing compliance 

with the rules; (2) deterring abuse; and (3) punishing abuse. Chrysler Corp. v. 

Blackmon, 841 S.W.2d 844, 849 (Tex. 1992). We review a trial court’s imposition of 

sanctions for an abuse of discretion. Am. Flood Research, Inc. v. Jones, 192 S.W.3d 

581, 583 (Tex. 2006). “The test for an abuse of discretion is not whether, in the opinion 

of the reviewing court, the facts present an appropriate case for the trial court’s actions, 

but ‘whether the court acted without reference to guiding rules and principles.’” Cire v. 

Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004) (quoting Downer v. Aquamarine 

Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985)). The ruling will be reversed only if 

the trial court acted without reference to any guiding rules and principles, such that its 

ruling was arbitrary or unreasonable. Id. at 839.

“In conducting our review, we are not limited to a review of the ‘sufficiency of 

the evidence’ to support the trial court’s findings; rather, we make an independent 

inquiry of the entire record to determine if the court abused its discretion by imposing 

the sanction.” Elgohary v. Tex. Workforce Comm’n, No. 14-09-00108-CV, 2010 WL 

2326126, at *4 (Tex. App.—Houston [14th Dist.] June 10, 2010, no pet.) (mem. op.); 

see Am. Flood Research, Inc., 192 S.W.3d at 583 (“In reviewing sanctions orders, the 

appellate courts are not bound by a trial court’s findings of fact and conclusions of law; 

rather, appellate courts must independently review the entire record to determine 

whether the trial court abused its discretion.”). An appellate court looks at the entire 

record, including any evidence, arguments of counsel, the written discovery on file, and 

the circumstances surrounding the party’s alleged discovery abuse. Johnson v. 

Chesnutt, 225 S.W.3d 737, 741 (Tex. App.—Dallas 2007, pet. denied); Butan Valley, 

N.V. v. Smith, 921 S.W.2d 822, 827 (Tex. App.—Houston [14th Dist.] 1996, no writ). 

Rule 215.2(b) lists the sanctions a court may impose. They include: (1) 
33

disallowing any further discovery of any kind; (2) charging all or a portion of the 

expenses of discovery against the disobedient party; (3) determining designated facts 

shall be taken to be established; (4) refusing to allow the disobedient party to support or 

oppose designated claims or defenses, or prohibiting designated evidence from being 

introduced into evidence; (5) striking pleadings or parts thereof, staying the action until 

the order is obeyed, dismissing the action with or without prejudice, or rendering 

judgment by default; (6) imposing a contempt order; and (7) requiring the disobedient 

party to pay reasonable expenses, including attorney’s fees, caused by the sanctionable 

conduct. Tex. R. Civ. P. 215.2(b).

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

announced a two-part test for courts to apply when determining whether a sanction is 

“just.” 

First, there must be a direct nexus among the offensive conduct, the offender, and 

the sanction imposed. Spohn Hosp. v. Mayer, 104 S.W.3d 878, 882 (Tex. 2003) (citing 

TransAmerican, 811 S.W.2d at 917). A just sanction must be directed against the abuse 

and toward remedying the prejudice caused to the innocent party, and the sanction 

should be visited upon the offender. Id.

Second, just sanctions must not be excessive. TransAmerican, 811 S.W.2d at 

917. “When discussing excessiveness, [the supreme court has] said that ‘the 

punishment should fit the crime’ and that the sanction ‘should be no more severe than 

necessary to satisfy its legitimate purposes.’” Paradigm Oil, Inc. v. Retamco Operating, 

Inc., 372 S.W.3d 177, 187 (Tex. 2012) (quoting TransAmerican, 811 S.W.2d at 917). 

“Moreover, discovery sanctions are primarily intended to remedy discovery abuse and 

should be tailored to serve their remedial purpose.” Id. For this reason, the supreme 

court requires courts to consider less stringent sanctions and whether such lesser 

sanctions would fully promote compliance. TransAmerican, 811 S.W.2d at 917; see
34

also Cire, 134 S.W.3d at 839; Spohn Hosp., 104 S.W.3d at 882.

The imposition of severe sanctions is further limited by constitutional due 

process. TransAmerican, 811 S.W.2d at 917. “When a trial court strikes a party’s 

pleadings and dismisses its action or renders a default judgment against it for abuse of 

the discovery process, the court adjudicates the party’s claims without regard to their 

merits but based instead upon the parties’ conduct of discovery.” Id. at 918. “‘[T]here 

are constitutional limitations upon the power of courts, even in aid of their own valid 

processes, to dismiss an action without affording a party the opportunity for a hearing 

on the merits of his cause.’” Id. (quoting Societe Internationale v. Rogers, 357 U.S. 

197, 209-10 (1958)). Discovery sanctions cannot be used to adjudicate the merits of a 

party’s claims or defenses unless a party’s hindrance of the discovery process justifies a 

presumption that its claims or defenses lack merit. TransAmerican, 811 S.W.2d at 918; 

GTE Commc’n Sys. Corp. v. Tanner, 856 S.W.2d 725, 730 (Tex. 1993). “Sanctions 

which are so severe as to preclude presentation of the merits of the case should not be 

assessed absent a party’s flagrant bad faith or counsel’s callous disregard for the 

responsibilities of discovery under the rules.” TransAmerican, 811 S.W.2d at 918.

Death penalty sanctions may be imposed in the first instance only in exceptional 

cases when they are clearly justified and it is fully apparent that no lesser sanctions 

would promote compliance with the rules. Cire, 134 S.W.3d at 840; Tanner, 856 

S.W.2d at 729. A trial court “must analyze the available sanctions and offer a reasoned 

explanation as to the appropriateness of the sanction imposed;” thus, a trial court is 

“required to consider the availability of lesser sanctions before imposing death penalty 

sanctions.” Cire, 134 S.W.3d at 840 (citing Tanner, 856 S.W.2d at 729). And, in all 

but the most egregious and exceptional cases, a trial court is “required to test the 

effectiveness of lesser sanctions by actually implementing and ordering each sanction 

that would be appropriate to promote compliance with the trial court’s orders in the 
35

case.” Id. at 842 (citing Chrysler, 841 S.W.2d at 849).

B. Waiver

As a threshold matter, we address Rothenberg’s arguments that death penalty 

sanctions should be affirmed summarily because Primo failed to (1) provide this court 

with a complete record or a statement of points; and (2) challenge on appeal the trial 

court’s September 16, 2013 order, in which the trial court “reconsidered” its original 

death penalty sanctions order signed on May 22, 2013, and again imposed death penalty 

sanctions.

1. Incomplete record

Rothenberg invokes a presumption that omitted portions of the reporter’s record

are relevant and support the trial court’s sanctions order. See Tex. R. App. P. 34.6. 

Rothenberg states that Primo failed to provide this court with a reporter’s record of 

hearings held on August 19, 2013, August 26, 2013, and September 16, 2013; 

Rothenberg also asserts that Primo failed to include in the clerk’s record Rothenberg’s

“written supplement to [his] January, 2013, motion to compel production, Primo’s 

motion to recuse Judge McFarland, and Judge Underwood’s written order overruling 

Primo’s motion to recuse.”5

 According to Rothenberg, “Primo’s failure to bring forth a 

record of all proceedings in the case makes it unnecessary for this Court to wade deeply 

into the contentious proceedings in the trial court below.”

Primo responds that the presumption does not apply when the only omission from 

the reporter’s record is non-evidentiary; he asserts that the trial court hearings held on 

August 19, 2013, August 26, 2013, and September 16, 2013, were non-evidentiary. 

We disagree with Rothenberg’s assertion that death penalty sanctions can be 

 5 Primo asserts that his motion to recuse the trial judge was filed in cause number 2012-68391 

after severance on July 12, 2013. Rothenberg does not dispute Primo’s assertion.
36

affirmed based on a presumption that omitted portions of the reporter’s record are 

relevant and support the trial court’s action. Rothenberg’s briefing as the appellee did 

not dispute that the hearings held on August 19, 2013, August 26, 2013, and September 

16, 2013, were non-evidentiary.6

 “When evidence is not submitted at a hearing, there 

are no factual resolutions to presume in the trial court’s favor.” Butan Valley, 921 

S.W.2d at 828. Based on this precept, this court has rejected an appellee’s argument 

that a trial court’s sanctions order should be affirmed because the appellant failed to 

produce a reporter’s record for three non-evidentiary hearings. Id. “Consequently, the 

record we have before us is sufficient for us to determine if the trial court acted properly 

in imposing sanctions.” Id. 

Additionally, although Rothenberg states that Primo failed to include in the 

clerk’s record a “written supplement” to Rothenberg’s January motion to compel, 

Rothenberg does not state what this written supplement contains or how it pertains to

the imposition of death penalty sanctions against Primo. We note that the presumption 

 6

 On rehearing, Rothenberg contends that the September 16 hearing was evidentiary because 

exhibits were offered into evidence during that hearing. Rothenberg does not contend that the August 

19, 2013 and August 26, 2013 hearings were evidentiary. In support of his contention that the 

September 16, 2013 hearing was evidentiary, Rothenberg cites a motion filed by Primo in this court on 

September 2, 2014. Primo’s motion in this court sought to supplement the record on appeal with a 

copy of the September 16, 2013 hearing transcript. Rothenberg opposed supplementation in a response 

filed in this court on September 12, 2014. This court denied supplementation on September 18, 2014. 

In his motion to supplement the record on appeal, Primo represented that no live testimony was 

presented at the September 16, 2013 hearing; he also represented that Rothenberg offered 23 exhibits 

into evidence at the same hearing. According to the September 16, 2013 hearing transcript submitted 

to this court in conjunction with the motion to supplement, Rothenberg told the trial court at the 

September 16, 2013 hearing that the 23 exhibits “are the exhibits that were attached to my Motion for 

Death Penalty Sanctions and the associated papers. They are exactly the same as what’s on file.” The 

trial court recited its understanding that these exhibits “all came out of the Court’s record – they’re all 

out of the Court’s file.” Rothenberg responded to the trial court’s statement as follows: “Exhibits A 

through M is [sic] the exhibits that were attached to the Motion for Death Penalty Sanction. And then 

N through X are the exhibits and other papers from the two motions that I filed for the additional 

findings. There are no different papers.” We do not believe that application of the presumption under 

Texas Rule of Appellate Procedure 34.6(c)(4) is warranted when the supposedly omitted evidence 

already appears elsewhere in the appellate record.
37

being invoked here applies to the reporter’s record. See Tex. R. App. P. 34.6(c)(4) 

(“The appellate court must presume that the partial reporter’s record designated by the 

parties constitutes the entire record for purposes of reviewing the stated points or issues. 

This presumption applies even if the statement includes a point or issue complaining of 

the legal or factual insufficiency of the evidence to support a specific factual finding 

identified in that point or issue.”). We do not suggest that Rule 34.6(c)(4) applies to 

items omitted from a clerk’s record.

We reject Rothenberg’s contention that a presumption compels us to affirm the 

death penalty sanctions against Primo.

2. September 16, 2013 “Additional Findings of Fact and 

Conclusions of Law”

Rothenberg further argues that Primo’s asserted failure to challenge on appeal the 

trial court’s “Additional Findings of Fact and Conclusions of Law” signed on 

September 16, 2013, in which the trial court “reconsidered” its original death penalty 

sanctions order signed on May 22, 2013, and reimposed them, requires us to affirm the 

trial court’s imposition of death penalty sanctions. Rothenberg contends that Primo 

“irrevocably waived” any complaint about the trial court’s imposition of death penalty 

sanctions “by failing to attack in any manner the [trial] court’s September 16, 2013 

written order reconsidering her prior granting of case-dispositive sanctions in light of 

the additional evidence and proceedings addressed in the written order.”

Primo argues that he was not required to attack the September 16, 2013 order 

because it did not pronounce any new rulings and expressly stated that the trial court’s 

May 22, 2013 order “shall stand without any change whatsoever.”

We disagree with Rothenberg’s assertion that Primo forfeited his right to 

challenge the trial court’s imposition of death penalty sanctions against him. 

In addressing this waiver assertion, we begin by reviewing the timing of events in 
38

the trial court. The severance order signed on June 10, 2013, created a final and 

appealable judgment in trial court cause no. 2012-6839-A. Primo timely filed a motion 

for new trial in the “A” case on July 10, 2013; this filing extended the trial court’s 

plenary power to modify the judgment until 30 days after the date on which the motion 

for new trial was overruled by written order or operation of law. See Tex. R. Civ. P. 

329b(e). The trial court signed a written order in the “A” case overruling Primo’s 

motion for new trial on August 19, 2013.

While the trial court still had plenary power, Rothenberg filed a request for 

additional findings of fact and conclusions of law in support of death penalty sanctions 

on August 27, 2013. Primo filed a notice of appeal on September 6, 2013, in which he 

identified the May 22, 2013 order as one of the matters being appealed.

The trial court signed “Additional Findings of Fact and Conclusions of Law” on 

September 16, 2013, in conformity with Rothenberg’s request and while it still had 

plenary power to do so. Among other things, the September 16, 2013 “Additional 

Findings of Fact and Conclusions of Law” order incorporates by reference all of the 

“numerous and serious violations by Robert Primo of the Texas Rules of Civil 

Procedure pertaining to pretrial discovery” that were described as the basis for death 

penalty sanctions in the trial court’s May 22, 2013 order. The September 16, 2013

“Additional Findings of Fact and Conclusions of Law” order also identifies three 

instances of additional misconduct by Primo occurring after May 22, 2013, which 

pertained to (1) producing a transcript and video of John Irvine’s deposition; (2) 

representations made to the trial court at an August 19, 2013 hearing; and (3) 

demonstrating contempt for the court. The September 16, 2013 “Additional Findings of 

Fact and Conclusions of Law” order reaffirms the imposition of death penalty sanctions 

based on the totality of (1) Primo’s discovery conduct identified in the May 22, 2013

order, which is incorporated into the September 16, 2013 order; and (2) the three 
39

additional instances of Primo’s conduct identified for the first time in the September 16, 

2013 order.

Although Primo filed his notice of appeal in the “A” case ten days before the trial 

court signed its September 16, 2013 order reaffirming the imposition of death penalty 

sanctions, Rothenberg does not expressly contend that notice of appeal is ineffective or 

that this court lacks appellate jurisdiction – and appropriately so. See Tex. R. App. P. 

27.3 (“After an order or judgment in a civil case has been appealed, if the trial court 

modifies the order or judgment, or if the trial court vacates the order or judgment and 

replaces it with another appealable order or judgment, the appellate court must treat the 

appeal as from the subsequent order or judgment and may treat actions relating to the 

appeal of the first order or judgment as relating to the appeal of the subsequent order or 

judgment.”); see also Roccaforte v. Jefferson Cnty., 341 S.W.3d 919, 925 (Tex. 2011) 

(“[W]e treat Roccaforte’s appellate complaints about the trial court’s grant of the 

County’s jurisdictional plea as though they related to the appeal of the final 

judgment.”); Wohlfahrt v. Holloway, 172 S.W.3d 630, 633-34 (Tex. App.—Houston 

[14th Dist.] 2005, pet. denied) (appeal from earlier final judgments treated as appeal 

from later, modified judgment).

Insofar as Rothenberg contends that Primo’s briefing does not adequately assail 

the September 16, 2013 order, we disagree. As framed in his opening brief in appellate 

cause number 14-13-00794-CV, Primo’s first issue presented broadly asserts that the 

trial court abused its discretion by imposing death penalty sanctions. Primo discusses 

specific findings in the May 22, 2013 order; because these findings also were 

incorporated wholesale into the September 16, 2013 order, this discussion likewise 

addressed the basis for death penalty sanctions set forth in the subsequent order. The 

additional discussion in Primo’s brief sweeps broadly enough to encompass all bases 

upon which the trial court imposed death penalty sanctions, including those added in the 
40

September 16, 2013 order.

We now turn to the merits of whether death penalty sanctions are appropriate on 

this record.

C. Propriety of Death Penalty Sanctions 

The “Order and Interlocutory Judgment” signed on May 22, 2013, and 

subsequently incorporated into the Additional Findings of Fact and Conclusions of Law 

signed on September 16, 2013, is a death penalty sanctions order. It precludes any 

defense of Rothenberg’s claim for the initial $57,999.63 in attorney’s fees, and renders 

judgment in favor of Rothenberg in that amount.

Primo argues that the trial court abused its discretion by imposing “manifestly 

unjust and excessive sanctions” against him without first considering or testing lesser 

sanctions. Primo argues that death penalty sanctions were not warranted because the 

trial court signed only one order to compel discovery before imposing death penalty 

sanctions. Primo further contends that there is no evidence of a “history of chronic noncompliance,” bad faith, or “flagrant disregard for the responsibilities of discovery under 

the rules.” According to Primo, he timely supplemented discovery requests “within a 

short time and before the discovery deadline.” 

Primo also contends that Rothenberg did not incur monetary expenses or suffer 

prejudice from Primo’s failure to produce the indemnity trial transcript or other 

discovery. Primo contends that Rothenberg (1) did not seek a continuance in order to 

remedy the alleged disadvantage caused by delay in producing the reporter’s record 

from the indemnity trial; (2) never named an expert who declined to serve as an expert 

because of the transcript delay; (3) made “no assertion that his own designation [as 

expert] is inferior;” and (4) had superior knowledge of the indemnity trial because he 

represented Primo at trial. Primo notes that the docket control order does not contain a 
41

deadline for challenging experts; either party could have challenged an expert any time 

before trial.

Rothenberg responds that Primo failed to attack findings of fact 51 and 52 of the 

May 22, 2013 order; the trial court found that Primo improperly withheld the indemnity 

trial reporter’s record until after the expert witness deadline expired on April 16, 2013, 

and that this delay was a deliberate act by Primo to force “Rothenberg to the choice of 

going to trial not fully prepared, or requesting a trial continuance, which Rothenberg has 

opposed in this case.” He further argues that the evidence in this case supports the trial 

court’s finding that “Primo’s hindrance of the discovery process was so multifarious, so 

persistent and so determined as to warrant the presumption that [Primo]’s claims had no 

merit; otherwise he would have fully responded to discovery.” Rothenberg contends 

that the unreliable and conclusory nature of Primo’s expert report further warrants a 

finding that Primo’s claims and defenses lacked merit. 

According to Rothenberg, the “case dispositive sanctions issued by the trial court 

fit Primo’s improper pattern of conduct and were not excessive” because, without timely 

responses to the court-ordered pretrial discovery, “it was impossible” for Rothenberg to 

prepare his causes of action and defenses to Primo’s counterclaims on a timely basis. 

Rothenberg further argues that Primo never fully supplemented his discovery responses 

as ordered, and a belated supplementation after the expiration of Rothenberg’s expert 

witness designation deadline was insufficient to undo the prejudice caused by Primo’s 

failure to timely respond to discovery requests. 

We do not condone Primo’s conduct or suggest it was an abuse of discretion to 

conclude that Primo’s conduct warranted sanctions. We nonetheless conclude that the 

trial court’s imposition of death penalty sanctions in the first instance, and without first 

considering or testing lesser sanctions, constituted an abuse of discretion under the 

circumstances present here.
42

The trial court granted Rothenberg’s motion to compel after Primo did not fully 

answer all discovery requests, and ordered Primo to fully answer interrogatories and 

requests for production by February 15, 2013. In his first supplemental responses to 

Rothenberg’s first discovery request filed on February 15, 2013, Primo (1) provided 

detailed answers to Rothenberg’s Interrogatories Nos. 1, 3, and 6 through 12; (2) 

responded to Interrogatory No. 2 that he had not pleaded a DTPA claim yet; (3) 

responded to Interrogatory No. 5 that he intended to file a grievance against Rothenberg 

with the State Bar of Texas and listed several ethics rules he believed Rothenberg 

violated; (4) responded to Interrogatory No. 13 that he “will designate expert(s) when 

their review is complete and report made available and the expert made available for 

discovery;” and (5) responded to Rothenberg’s eight requests for production by 

providing an internet address for an “uploaded file.”

At a March 11, 2013 hearing, the trial court orally ordered Primo to produce the 

indemnity trial reporter’s record to Rothenberg by March 31, 2013. Primo did not 

produce the record as ordered; it was not provided until May 6, 2013. To Rothenberg’s 

second set of interrogatories and second request for production, Primo responded by 

objecting to the three interrogatories as being excessive in number and by objecting to 

the indemnity trial record request on the ground that the record is the court reporter’s 

work product that is “easily available” from the court reporter.

No monetary sanctions were requested. Instead, Rothenberg filed a motion for 

death penalty sanctions or, alternatively, a motion to compel on May 3, 2013. Primo 

responded to Rothenberg’s motion and attached two exhibits to his response on May 10, 

2013. One exhibit contained Primo’s second supplemental responses to Interrogatory 

No. 2 and No. 13 to Rothenberg’s first set of interrogatories. The other exhibit 

contained supplemental responses to Rothenberg’s second request for production, in 

which Primo claimed he produced all documents he referenced in his supplemental 
43

responses, and produced the indemnity trial reporter’s record. Primo previously 

attached the indemnity trial reporter’s record as part of his no-evidence summary 

judgment response on May 6, 2013.

During the hearing on Rothenberg’s death penalty sanctions motion, the trial 

court did not consider imposing lesser sanctions or indicate why lesser sanctions would 

not be effective to secure Primo’s compliance with discovery requests, deter further 

non-compliance with discovery requests, and punish Primo. In its May 22, 2013 death 

penalty sanctions order, the trial court did not explain why lesser sanctions against 

Primo would have been ineffective and did not indicate that the court considered 

imposition of lesser sanctions before imposing the most severe sanctions. See Cire, 134 

S.W.3d at 842; Tanner, 856 S.W.2d at 729. 

The trial court’s May 22, 2013 order states that Primo committed discovery abuse 

when he (1) made frivolous objections to three interrogatories in Rothenberg’s second 

set of interrogatories on the ground that the number of interrogatories was excessive, 

and objected to producing the indemnity trial record because the record was the court 

reporter’s work product and was “easily available from” the court reporter; (2) did not 

produce documents in written form in response to Rothenberg’s first eight requests for 

production, and instead provided an internet address at which Rothenberg could access 

the stored documents, because “this form of responding to a request for production is 

not authorized by the Texas Rules of Civil Procedure;” (3) responded to Interrogatory

No. 13 that he “will designate expert(s) when their review is complete and report made 

available” because this response was not complete and specific; (4) failed to timely 

supplement his response to Interrogatory No. 2 in Rothenberg’s first set of 

interrogatories after he pleaded a DTPA claim on April 1, 2013; (5) responded to 

Interrogatory No. 5 that he intended to file a grievance against Rothenberg because this 

response does not “provide factual information sought” in Interrogatory No. 5; and (6) 
44

“improperly withheld” the indemnity trial reporter’s record “until after the April 16, 

2013 expiration of Rothenberg’s expert witness designation deadline” because “Primo’s 

refusal to produce the [] record was a deliberate act on his part designed to put 

Rothenberg to the choice of going to trial not fully prepared, or requesting a trial 

continuance, which Rothenberg has opposed in this case.”

The trial court’s order also states that the “most egregious” of Primo’s abuses was 

the withholding of the indemnity trial record until May 6, 2013, which denied 

Rothenberg the opportunity to “review the materials that Primo’s testifying expert 

witness reviewed in formulating his opinions in this case;” “to do a full Daubert 

challenge to the relevance and reliability of Primo’s testifying expert witnesses 

opinions;” and “to timely designate one or more expert witnesses.” 

The trial court did not consider lesser sanctions before imposing death penalty 

sanctions. See Cire, 134 S.W.3d at 842; Tanner, 856 S.W.2d at 729. A variety of lesser 

sanctions were available to secure Primo’s compliance with discovery requests; deter 

him from further non-compliance; punish him for past non-compliance; and, most 

importantly, remedy any prejudice caused to Rothenberg because of Primo’s noncompliance. See Tex. R. Civ. P. 215.2. Rothenberg has not cited any case in which

conduct similar to Primo’s was found to warrant imposition of death penalty sanctions 

without first considering or testing lesser sanctions. We have located no such case 

through our own research.

The result here is not changed by the additional findings of fact and conclusions 

of law contained in the September 16, 2013 order. 

In the September 16, 2013 order, the trial court found that Primo (1) had 

possession of attorney John Irvine’s deposition transcript and video for several weeks 

but failed to produce it after Rothenberg requested production in June and July 2013 

because he knew that Irvine’s testimony was damaging to his “groundless” allegations 
45

against Rothenberg; (2) made false representations to the court at an August 19, 2013 

hearing; and (3) demonstrated contempt for the trial court. 

The September 16, 2013 order concludes that (1) Primo’s wrongful conduct 

before and after the imposition of death penalty sanctions on May 22, 2013, is 

“sufficient to convince the Court that no lesser sanction than a case dispositive sanction 

would have been sufficient to obtain” Primo’s compliance with pretrial discovery rules; 

and (2) Primo’s conduct after the imposition of death penalty sanctions “further 

establishes that lesser sanctions would have been ineffective in obtaining . . . Primo’s 

compliance with the Texas Rules of Civil Procedure” and the trial court’s discovery 

orders. The trial court reaffirms its May 22, 2013 order, and states that it is “necessary 

and proper,” “complies with due process,” and “shall stand without any change 

whatsoever.” 

We conclude that the September 16, 2013 order does not remedy the failure to 

consider lesser sanctions as reflected in the May 22, 2013 order. The compliance, 

deterrence, and punishment rationales that undergird discovery sanctions are not 

promoted by a procedure that allows death penalty sanctions to be levied because the 

sanctioned litigant failed to cooperate after death penalty sanctions were levied. See 

Chrysler, 841 S.W.2d at 849. Re-hanging an already-hung litigant does not fix 

procedural flaws preceding the first trip to the gallows and does not comply with 

TransAmerican. See TransAmerican, 811 S.W.2d at 917-18.

Like its predecessor, the September 16, 2013 order fails to effectively “analyze 

the available sanctions and offer a reasoned explanation as to the appropriateness of the 

sanction imposed” as required before imposing the most severe sanctions possible. See 

Cire, 134 S.W.3d at 840. 

Based on our review of the record, we conclude that Primo’s inappropriate 

conduct does not make this an exceptional case in which death penalty sanctions are 
46

justified in the first instance. See Spohn Hosp., 104 S.W.3d at 882. We conclude that 

the trial court abused its discretion by assessing death penalty sanctions as an initial 

sanction without appropriately considering or testing lesser sanctions. Even when the 

record reflects intentional discovery abuse, as it does here, the trial court is still required 

to explain that it considered lesser sanctions before imposing sanctions precluding a 

party’s ability to present the merits of its claims.

Unlike Cire, the circumstances here do not involve the deliberate destruction of 

dispositive evidence. See Cire, 134 S.W.3d at 840-42 (“This is an exceptional case 

where it is fully apparent and documented that no lesser sanctions would promote 

compliance with the discovery rules, and the trial court did not abuse its discretion in

striking [party]’s pleadings.”). The circumstances here more closely track cases in 

which death penalty sanctions were inappropriate because lesser sanctions were not first 

considered or tested. See Spohn Hosp., 104 S.W.3d at 882 (trial court’s sanctions were 

unjust and excessive because “the record is silent regarding the consideration and 

effectiveness of less stringent sanctions”); Tanner, 856 S.W.2d at 729 (“[t]he record 

must reflect that the court considered the availability of lesser sanctions” and “the order 

which the district court signed stated that lesser sanctions would have been ineffective, 

but the court did not explain why and the record does not indicate why”); Chrysler 

Corp., 841 S.W.2d at 849 (“a court must consider relatively less stringent sanctions first 

to determine whether lesser sanctions will fully promote compliance, deterrence, and 

discourage further abuse”); TransAmerican, 811 S.W.2d at 917 (death penalty sanctions 

excessive where “there is nothing in the record to indicate that the district court

considered imposition of lesser sanctions or that such sanctions would not have been 

effective”).

7

 7 See also Khan v. Valliani, 439 S.W.3d 528, 535-36 (Tex. App.—Houston [14th Dist.] 2014, no 

pet.) (although Khan had several months to pay $400 as ordered by the trial court to compensate 

Valliani for having to prosecute a motion to compel and although “she had been warned at least once 
47

We sustain Primo’s first issue and reverse the trial court’s grant of death penalty 

sanctions against Primo.

8

Appeal in Cause No. 14-13-00997-CV

We now address whether the trial court properly granted traditional summary 

judgment in favor of Rothenberg on his claim to recover additional attorney’s fees 

incurred in litigating his entitlement to the initial $57,999.63 fee. 

 

about the failure to do so, we cannot say that her behavior, even if done in flagrant bad faith warrants 

the severest of civil sanctions;” imposing death penalty sanctions was an abuse of discretion and the 

trial court “should have considered lesser sanctions, such as abating the case until the fee was paid, or 

including payment of the fee in a final judgment”); Shops at Legacy (Inland) Ltd. v. Fine Autographs 

& Memorabilia Retails Stores, Inc., 418 S.W.3d 229, 235 (Tex. App.—Dallas 2013, no pet.) (“Without 

considering the merits of the allegedly sanctionable actions, we conclude the trial court erred when it 

assessed ‘death penalty’ sanctions against The Shops at Legacy because the record does not show the 

trial court considered and analyzed the availability of less stringent sanctions and whether such 

sanctions would fully promote compliance.”); In re M.J.M., 406 S.W.3d 292, 298 (Tex. App.—San 

Antonio 2013, no pet.) (despite litigant’s “intentional and blatant” abuse of the discovery process for 

several months, the trial court abused its discretion by imposing death penalty sanctions without first 

testing or considering less stringent sanctions before imposing death penalty sanctions); Gunn v. 

Fuqua, 397 S.W.3d 358, 375 (Tex. App.—Dallas 2013, pet. denied) (trial court abused its discretion in 

imposing death penalty sanctions without considering less stringent sanctions despite evidence of 

litigant’s dilatoriness in failing to designate experts, produce expert reports, and comply with 

scheduling orders); Citibank, N.A. v. Estes, 385 S.W.3d 671, 676-77 (Tex. App.—Houston [14th Dist.] 

2012, no pet.) (“The assessment of death penalty sanctions as an initial sanction, without explanation, 

is excessive.”); Mendez v. Sweeny Cmty. Hosp., No. 14-02-00843-CV, 2003 WL 21192136, at *3 (Tex. 

App.—Houston [14th Dist.] May 22, 2003, no pet.) (mem. op.) (death penalty sanction was excessive 

and trial court should have imposed a lesser sanction to address litigant’s failure to answer questions in

deposition and failure to respond to discovery requests after the trial court’s oral order to comply); In 

re Harvest Communities of Houston, Inc., 88 S.W.3d 343, 349 (Tex. App.—San Antonio 2002, orig. 

proceeding) (conditionally granting mandamus relief where trial court failed to adequately consider 

lesser sanctions before imposing death penalty sanctions for discovery abuse).

8 In the “Issues Presented” section of his brief, Primo states as his fourth issue the following 

argument: “The trial judge abused [its] discretion to issue irrelevant findings of facts and conclusions 

of law on pleadings from other unadjudicated lawsuits not germane to the underlying case for legal 

malpractice. Such lawsuits were three generation levels removed from the underlying case, and never 

presented to a trier-of-fact in the underlying case or any other case.” Primo discusses this argument as 

one of his sub-issues within his first issue. In light of our disposition of the first issue, we need not 

address Primo’s fourth issue separately.
48

Primo states in his brief: “As the underlying judgment is an award of attorney’s 

fees for contract claims from that Severed Case[,] [i]n addition to all the defects in the 

underlying case itself, reversal of that improper adjudication in the Severed Case, on 

appeal in this Court, Cause No. 14-13-00794-CV, will also void the judgment in the 

underlying case, as without prevailing on the contract claim, there is no basis for award 

of attorney’s fees.”

Primo argues that the trial court erred by granting summary judgment because (1) 

the amount of additional attorney’s fees should not have been adjudicated on summary 

judgment but through an evidentiary hearing; (2) Primo’s expert affidavit raised a 

genuine issue of material fact that Rothenberg’s fees are unreasonable and unnecessary,

and Rothenberg is not a credible witness; (3) Rothenberg failed to segregate his fees; (4) 

a “claim for attorney’s fees cannot be maintained independently in a separate lawsuit 

from the main claim for breach of contract/sworn account;” (5) Rothenberg failed to 

satisfy Civil Practice and Remedies Code section 38.001 to recover attorney’s fees; (6) 

Rothenberg “forfeited his claim for attorney’s fees in the underlying case” when he 

sought severance of his contract claim because the claim for attorney’s fees cannot be 

independently maintained; (7) “Res Judicata bars Rothenberg’s claim for attorney’s fees 

in the underlying case;” and (8) there were no procedural defects in Primo’s summary 

judgment evidence.

We need not address Primo’s numerous challenges to this ruling because the trial 

court’s traditional summary judgment awarding additional attorney’s fees incurred in 

pursuing the initial $57,999.63 fee cannot stand in light of our reversal of the trial 

court’s imposition of death penalty sanctions against Primo.9

 9 We express no opinion regarding the propriety of seeking additional attorney’s fees in the 

original trial court cause number after the underlying breach of contract claim was severed on June 10, 

2013.
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Rothenberg argued in his motion for traditional summary judgment that (1) the 

trial court’s May 22, 2013 order and interlocutory judgment imposed death penalty 

sanctions against Primo and awarded Rothenberg $57,999.63 for his fee agreement

claim against Primo; (2) the trial court “severed its interlocutory judgment in the amount 

of $57,999,63” on June 10, 2013, leaving as the only remaining issue “the amount of 

attorney’s fees to be awarded to Scott Rothenberg for handling the prosecution and 

defense of all claims, demands and causes of action” in the lawsuit; and (3) Rothenberg

was entitled to $148,100 in reasonable attorney’s fees from Primo pursuant to Chapter 

38 of the Texas Civil Practice & Remedies Code “for professional legal services 

performed in the trial court and in the courts of appeals up through October 2, 2013.” 

The trial court signed an order granting Rothenberg’s traditional summary judgment 

motion on November 5, 2013.

Chapter 38 allows a prevailing party to recover reasonable attorney’s fees in 

addition to the amount of a valid claim and costs if the claim is for a sworn account or 

an oral or written contract. See Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (7), (8) 

(Vernon 2008). “To recover attorney’s fees under this statute, a party must first prevail 

on the underlying claim and recover damages.” In re Nalle Plastics Family Ltd., 406 

S.W.3d 168, 173 (Tex. 2013) (emphasis in original).

The basis identified for entitlement to the underlying fees was the May 22, 2013 

sanctions order. With the reversal of the death penalty sanctions and the underlying fee 

award of $57,999.63 as set out in the May 22, 2013 order, neither of these two prongs is

satisfied. Accordingly, the trial court’s traditional summary judgment in favor of 

Rothenberg also must be reversed.

CONCLUSION

In cause number 14-13-00794-CV, we affirm the trial court’s judgment in part 

with respect to the trial court’s grant of a no-evidence summary judgment. We reverse 
50

the trial court’s judgment in part with respect to the trial court’s imposition of death 

penalty sanctions. We remand for further proceedings not inconsistent with this court’s 

opinion.

In cause number 14-13-00997-CV, we reverse the trial court’s judgment with 

respect to Rothenberg’s claim for additional attorney’s fees incurred in litigating the 

initial $57,999.63 fee dispute as reflected in the “Final Judgment.” We remand for 

further proceedings not inconsistent with this court’s opinion.

/s/ William J. Boyce

Justice

Panel consists of Justices Boyce, Jamison and Donovan.