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Onstad v. Wright8/21/2001
iv. Prac. & Rem. Code Ann. ยง 7.011 (Vernon 1986), which provides that, "An attorney who is not a party to a civil proceeding is not liable for payment of costs incurred by a party to the proceeding." That argument fails for the simple reason that the sanction, although the amount was determined by the expense incurred in defending the suit, is not of itself a cost incurred by a party. Indeed, a party may not be punished with sanctions for his counsel's conduct unless the party is somehow independently culpable for counsel's actions. Glass v. Glass, 826 S.W.2d 683, 687 (Tex. App.-Texarkana 1992, writ denied).
This is an expense incurred by Onstad because of his actions and cannot be treated as a cost incurred by a party in this case.
Onstad finally contends that the amount of the sanction is excessive. He points out that the cost to him because of the mistrial was also considerable and argues that he should not also have to shoulder the burden of a monetary sanction in this amount. The sanction was measured by the expenses incurred in the actual defense at the trial, and limited to fees and expenses for work that would have to be redone and expenses incurred by counsel and parties in attending the trial.
An appellate court can set aside a trial court's sanctions only for clear abuse of discretion. The test for abuse of discretion is whether the court acted without reference to any guiding rules and principles, or whether under all the circumstances of the particular case, the court's action was arbitrary or unreasonable. Koslow's v. Mackie, 796 S.W.2d 700, 704 (Tex. 1990). A sanction for failure to obey a court order must always be appropriate to the circumstances of the case. Id. at 703-04 n.1; Lassiter, 824 S.W.2d at 669.
This sanction is without question a substantial one. However, after reviewing the information provided to the trial court, including the information about the expenses incurred in defending this lawsuit at the trial, we cannot say that the trial court's decision was arbitrary or unreasonable or that it was entered without providing due process to Onstad.
The judgment is affirmed.
Ben Z. Grant Justice
Date Submitted: June 12, 2001
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