Myers v. Branch Banking & Tr. Co.
| Decision Date | 02 April 2020 |
| Docket Number | No. 02-19-00080-CV,02-19-00080-CV |
| Parties | RICHARD A. MYERS, Appellant v. BRANCH BANKING & TRUST COMPANY, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 96th District Court Tarrant County, Texas
Before Sudderth, C.J.; Gabriel and Bassel, JJ.
After obtaining a judgment against Appellant Richard A. Myers, Appellee Branch Banking & Trust Company (BB&T) served third-party discovery on three financial institutions in its post-judgment collection efforts. To prevent BB&T from obtaining documents from the banks, Myers filed a motion for protective order. In the motion, Myers argued that BB&T gave notice of its intent to serve one set of subpoenas but may have served a different set of subpoenas on the banks. Myers, however, produced no evidence that the subpoenas served actually differed. And Myers apparently took no steps to substantiate his fears before filing his motion.
The trial court denied the motion for protective order and ordered Myers and his counsel to pay BB&T $1,460.00 in attorney's fees as a sanction for discovery abuse under Texas Rule of Civil Procedure 215.3.
In three points, Myers complains that the trial court abused its discretion in denying the motion for protective order and awarding BB&T its attorney's fees as sanctions, and he complains that there is no evidence supporting the imposition of sanctions or the amount of attorney's fees awarded. We resolve all three points against Myers.
First, the trial court did not abuse its discretion by denying Myers's motion for protective order. Myers did not establish a particular, specific, and demonstrable injury by facts sufficient to justify a protective order. Instead, he based his motion on speculation—and no evidence—that BB&T may have served subpoenas that differedfrom the subpoenas it attached to its notices. His conclusory assertion that he supposedly did not have an opportunity to review and object to the subpoenas did not satisfy his burden.
Second, the trial court did not abuse its discretion by imposing sanctions upon Myers and his counsel. Myers filed a motion that had the effect of preventing BB&T from obtaining discovery from the banks, while his counsel did not take the steps necessary to determine whether his motion had any factual or legal basis before filing the motion.
Finally, the affidavit of BB&T's counsel supports the amount of attorney's fees awarded by the trial court.
Accordingly, we will affirm.
BB&T obtained a judgment against Myers and others in a foreclosure-deficiency action. This court affirmed that judgment in a prior appeal. See RCC Heritage Glade, Ltd. v. Branch Banking & Tr. Co., No. 02-15-00313-CV, 2016 WL 7473932, at *9 (Tex. App.—Fort Worth Dec. 29, 2016, pet. denied) (mem. op.). BB&T sought post-judgment discovery of Myers's financial records from three financial institutions: JPMorgan Chase Bank, N.A. (Chase), Fidelity Brokerage Services, LLC (Fidelity), and Citibank, N.A. (Citibank) (collectively, the Banks).
On the last business day before the Banks were required to respond to the discovery requests, Myers filed a motion for protective order. The motion contendedthat Myers's counsel did not receive notice that BB&T had filed with the trial court copies of the subpoenas that BB&T actually served on the Banks, claiming that Myers was entitled to such notice under Texas Rule of Civil Procedure 191.4. In the motion, Myers's counsel admitted that he received BB&T's ten-day notices of intent to serve subpoenas on the Banks (the Ten-Day Notices).1 But he argued that in those Ten-Day Notices, BB&T stated it would issue "amended subpoenas" and then attached "[u]nsigned forms of subpoenas" and not "amended subpoenas" to the notices. As a result, the motion argued that counsel was "unable to review and object to the subpoenas actually served, if any," on the Banks. Thus, Myers requested a protective order because BB&T "failed to comply with the applicable rules of discovery to third-parties [sic]." He stated that the filing of the motion "relieve[d] the [Banks] from having to comply with any subpoena unless ordered to do so by th[e] [trial] [c]ourt." And Myers requested recovery of his attorney's fees, citing no legal authority for his request.
BB&T filed a response addressing Myers's insinuation in his motion for protective order that BB&T had engaged in subterfuge in connection with the third-party discovery. BB&T stated, among other things, that the subpoenas it attached to the Ten-Day Notices were "exactly the same" as the subpoenas it served on the Banks and that its executed returns of service had been on file since December 27 and 28, 2018. According to BB&T's response, Myers's counsel "never once conferred with BB&T's counsel" prior to filing the motion for protective order and Myers's filing of the motion prevented BB&T from obtaining any documents from the Banks, who had not objected to the subpoenas. BB&T requested attorney's fees pursuant to Texas Rule of Civil Procedure 215.3, arguing that Myers abused the discovery process by filing the motion based on an "unsubstantiated, reckless belief" when the motion would have the effect of preventing BB&T from obtaining discovery from the Banks. BB&T also argued that there was no legal or factual basis for Myers's request for attorney's fees.
Over a week later, the court held a hearing, entered an order denying Myers's motion for protective order, and ordered Myers and his counsel to pay BB&T's reasonable attorney's fees in the amount of $1,460.00 "as a discovery sanction under [Texas] Rule [of Civil Procedure] 215.3."2 Myers appeals.
Myers's first point addresses both the trial court's ruling on the motion for protective order and the trial court's imposition of sanctions. We will first address the ruling on the motion for protective order.
In his first point, Myers contends that the trial court abused its discretion by denying Myers's motion for protective order. We disagree because Myers did not meet his burden to obtain a protective order.
A. A trial court does not abuse its discretion by denying a motion for protective order when a movant fails to show a "particular, specific, and demonstrable injury" by facts sufficient to justify a protective order.
Under Texas Rule of Civil Procedure 192.6, a person affected by a discovery request may move, within the time permitted for a response to the discovery request, for an order "protecting that person from the discovery sought." Tex. R. Civ. P. 192.6(a). A court may enter a protective order "[t]o protect the movant from undue burden, unnecessary expenses, harassment, annoyance, or invasion of personal, constitutional, or property rights." Tex. R. Civ. P. 192.6(b); see also Tex. R. Civ. P. 192.4.
Appellate courts review a trial court's ruling on a motion for protective order under an abuse of discretion standard. Johnson v. Davis, 178 S.W.3d 230, 243 (Tex. App.—Houston [14th Dist.] 2005, pet. denied). Although a trial court may exercise some discretion in granting a protective order, such discretion is not without bounds.In re Collins, 286 S.W.3d 911, 919 (Tex. 2009) (orig. proceeding). To obtain a protective order, the movant must show a "particular, specific[,] and demonstrable injury" by facts sufficient to justify a protective order. See id.; Tex. Voices for Reason & Justice, Inc. v. City of Argyle, No. 02-16-00052-CV, 2017 WL 1173837, at *3 (Tex. App.—Fort Worth Mar. 30, 2017, no pet.) (mem. op.) (citing Masinga v. Whittington, 792 S.W.2d 940, 940 (Tex. 1990) (orig. proceeding)); see also In re United Fire Lloyds, 578 S.W.3d 572, 579 (Tex. App.—Tyler 2019, orig. proceeding) (mem. op.); Brewer & Pritchard, P.C. v. Johnson, 167 S.W.3d 460, 466 (Tex. App.—Houston [14th Dist.] 2005, pet. denied). If the discovery sought is within the scope of Texas Rule of Civil Procedure 192, a trial court may not grant a protective order limiting discovery unless the party seeking such protection has met this burden. Brewer & Pritchard, 167 S.W.3d at 466 (citing Masinga, 792 S.W.2d at 940-41); see also In re Topletz, No. 05-17-00315-CV, 2017 WL 3634296, at *1 (Tex. App.—Dallas Aug. 24, 2017, orig. proceeding) (mem. op.) ("A trial court abuses its discretion by limiting discovery in the absence of some evidence supporting the request for a protective order.").
A motion for protective order must do more than simply make conclusory allegations. See Brewer & Pritchard, 167 S.W.3d at 466; see also Garcia v. Peeples, 734 S.W.2d 343, 345 (Tex. 1987) (orig. proceeding) ( that the "requirements of a particular, articulated[,] and demonstrable injury, as opposed to conclusory allegations, apply to motions for protective orders"). The party must produce some evidence supporting its request for a protective order. Brewer & Pritchard, 167 S.W.3d at 466.B. Myers failed to show a "particular, specific, and demonstrable injury" by facts sufficient to justify a protective order.
Myers's contention that the trial court abused its discretion by denying his motion for protective order fails for three reasons.
First, Myers completely failed to demonstrate a "particular, specific[,] and demonstrable injury" by facts sufficient to justify a protective order. See Masinga, 792 S.W.2d at 940. In fact, Myers never addressed the burden he had to meet in the first place in order to obtain a protective order. The only "injury" of any kind that he referred to in his motion was his being "unable to review and object to the subpoenas actually served, if any," on the Banks—essentially accusing BB&T's counsel of engaging in subterfuge by serving subpoenas different from those it had attached to its Ten-Day Notices. But the record is devoid of any evidence reflecting that BB&T served subpoenas that differed in any way from the forms of...
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