A decision last week from the First Court of Appeals in Houston provides a good reminder about preserving error related to sanctions orders. It also underscores the fundamental purpose of error preservation rules: giving the trial court the opportunity to correct the alleged error.
In Wilner v. Quijano, the trial court rendered a take-nothing judgment against the plaintiff and then issued post-trial sanctions against the plaintiff's counsel. No. 01-11-00322-CV, 2012 WL 5311147 (Tex. App.--Houston [1st Dist.] Oct. 25, 2012, no pet. h.). The attorney appealed, complaining that the sanction was improper because: (1) it was issued without notice and an opportunity to be heard; (2) the trial court improperly sanctioned the attorney post-trial for conduct that occurred pre-trial; (3) the trial court improperly sanctioned the attorney for his client's failure to pay a prior sanction award; and (4) the trial court failed to adequately describe the basis for the sanction. Id. at *1.
The court of appeals seemed to acknowledge that the attorney's complaints may have had merit. Id. at *3-6. But because the attorney did not raise any of these complaints in the trial court, they were waived. Id. Therefore, the court affirmed the sanction order.
We would all do well to remember that, although there are very strict rules regarding the imposition of sanctions, they can be waived without a proper objection in the trial court. We should also remember, as the court of appeals observed, that the primary purpose of error preservation rules is to give the trial court the opportunity to correct the alleged error. The complaining party cannot simply lie behind the log and complain for the first time on appeal. Complaints must be made to the trial court at a time when the trial court can correct the alleged error. Keeping this general rule in mind can provide guidance even when we cannot remember the specific error preservation rules for a particular situation.
-- Rich Phillips, Thompson & Knight