MEMORANDUM OPINION No. 04-12-00061-CV
Herbert Lawrence POLINARD, Appellant
v.
E.M. GILMORE, Jr., Individually and D/B/A Alamo Bail Bonds, and R.J. Hayes, Individually and D/B/A Alamo Bail Bonds, Appellees
From the County Court at Law #10, Bexar County, Texas Trial Court No. 288,485 Honorable David J. Rodriguez, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice Karen Angelini, Justice Marialyn Barnard, Justice
Delivered and Filed: October 31, 2012
AFFIRMED
After granting sanctions against Herbert Lawrence Polinard, resulting in the striking of
Polinard’s defensive pleadings, the trial court entered a judgment against him for the amount due
on a promissory note signed in connection with a bail bond. The trial court then granted a no-
evidence summary judgment in favor of E.M. Gilmore, Jr. and R.J. Hayes as to Polinard’s
counterclaims against them. Polinard appeals the trial court’s judgment and summary judgment
order, asserting the trial court abused its discretion by: (1) granting sanctions against Polinard 04-12-00061-CV
and his attorney, 1 including death penalty sanctions; and (2) entering sua sponte orders that
modified the terms of the parties’ mediation agreement and provided the basis for the sanctions.
Polinard also contends that the trial court erred in granting the no-evidence summary judgment
because Polinard produced evidence raising genuine issues of material fact with regard to his
counterclaims. We overrule Polinard’s contentions and affirm the trial court’s judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Gilmore and Hayes d/b/a Alamo Bail Bonds sued Polinard and Eddie Garcia on a
promissory note they allegedly signed in order to post a bail bond for Roy Garcia. Eddie failed
to answer, and a default judgment was taken against him. Polinard answered and asserted that he
did not execute the promissory note. Polinard also asserted numerous counterclaims against
Gilmore and Hayes. A detailed recitation of the facts is necessary to address Polinard’s appellate
issues.
Mediation Agreement
On November 30, 2005, the parties signed a mediation agreement that did not resolve the
case, but did include an agreement to the appointment of a handwriting expert to provide an
opinion with regard to Polinard’s purported signature on the promissory note. Each party agreed
to submit the names of three experts, and if the parties could not agree on an expert from these
names, the names would be submitted to the trial court for an appointment. The agreement
further stated, “Both sides agree to provide all necessary original documents and handwriting
exemplars as requested by the expert. Mr. Polinard will personally provide handwriting
1 We question whether this court has standing to address any issues pertaining to the sanctions imposed against Polinard’s attorney since Polinard’s attorney did not perfect an appeal on his own behalf. See Niera v. Frost Nat’l Bank, No. 04-09-00224-CV, 2010 WL 816191, at *2 (Tex. App.—San Antonio Mar. 10, 2010, pet. denied). Because Polinard raises the same issues with regard to the sanctions against him as he raises with regard to the sanctions assessed against his attorney, we must address the issues regardless. Because we overrule the issues, we need not decide whether Polinard’s attorney would have been entitled to relief if the issues had been sustained.
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exemplars directly to the expert in person.” The expert’s fees were to be shared equally by the
parties, not to exceed $1,000.00 per side, and were to be paid on or before January 10, 2006.
The parties also agreed that the expert’s opinion would not be outcome determinative, but either
side could call the expert as a witness as if fully disclosed under Rule 194. The parties further
agreed to return to mediation to resolve any disputes or disagreements on matters discussed
during the mediation. Finally, the parties agreed that the mediation agreement was not subject to
revocation, and any party would be entitled to judgment on the agreement.
Appointment of Handwriting Expert
The parties could not agree on an expert so the trial court entered an order on January 6,
2006, appointing Dale Stobaugh as the handwriting expert. The order stated that the parties
would share Stobaugh’s cost and expense equally, not to exceed $1,000.00 per side.
Because Polinard failed to timely pay his one-half of Stobaugh’s retainer, Gilmore and
Hayes filed a motion to compel Polinard to comply with the mediation agreement. On February
10, 2006, the trial court signed an order granting the motion to compel and ordering Polinard to
immediately pay Stobaugh the sum of $760.00.
On March 2, 2006, the trial court signed an order granting Gilmore and Hayes’s motion
for sanctions, again based on Polinard’s failure to pay his one-half of Stobaugh’s retainer.
Polinard was ordered to pay Stobaugh $760.00 by March 9, 2006. Polinard was also ordered to
pay Gilmore and Hayes’s attorney’s fees in the amount of $750.00. Finally, the trial court set a
status conference for March 23, 2006.
On March 23, 2006, Polinard’s attorney, Hugo Xavier De Los Santos, appeared and
argued a motion to set aside the March 2, 2006 order. De Los Santos argued that he did not
receive notice of the motion for sanctions or of the March 2, 2006 hearing; however, Gilmore
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and Hayes’s attorney, Allen Cazier, presented a facsimile confirmation that the motion was sent
to De Los Santos’s office. De Los Santos also presented a certified letter he sent with payment
to Stobaugh that was returned as undeliverable. Although the trial judge mentioned continuing
problems with his court coordinator being able to contact De Los Santos, the trial court granted
the motion to set aside the March 2, 2006 order. Cazier then addressed the handwriting
exemplars that Stobaugh had mentioned would be necessary for him to render an opinion.
Cazier agreed to ask Stobaugh to provide a written request of the necessary handwriting
exemplars, and a hearing was set for a second status conference.
On March 29, 2006, notice was filed of the correspondence received from Stobaugh.
Stobaugh’s letter, which was addressed to Cazier, stated that he would need Polinard to submit
signatures written as H.L. Polinard, the signature used on the promissory note, and handwriting
exemplars from around the time the promissory note was signed.
At the March 31, 2006 status conference, De Los Santos expressed concern about
Stobaugh’s conversations with Cazier, Stobaugh’s failure to return De Los Santos’s phone calls,
and the broad and vague requests in Stobaugh’s letter. Cazier responded that he had a follow-up
phone conversation with Stobaugh after receiving the letter, and Stobaugh specifically suggested
obtaining ten original signatures from Polinard and cancelled checks for the four months before
and four months after the date the promissory note was signed. Although the trial judge
attempted to call Stobaugh, his call was not answered. The trial judge then stated that he would
confirm what Stobaugh needed to provide his opinion and would sign an order directing that the
necessary exemplars be provided by a date certain.
On April 18, 2006, the trial court signed an order directing Polinard to appear before the
court by May 1, 2006, and provide 50 signatures. Polinard was also ordered to produce to the
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court sequentially numbered checks dated between September 15, 2000 and January 15, 2001 on
either a personal or business bank checking account.
On June 2, 2006, the trial court signed an amended order directing Polinard to appear on
July 7, 2006, and personally provide Stobaugh all handwriting exemplars requested by Stobaugh.
Polinard was also ordered to produce and deliver to Stobaugh sequentially numbered checks
dated between September 15, 2000 and January 15, 2001 on either a personal or business bank
checking account. Although the record does not expressly indicate the reason the amended order
was entered, statements made by De Los Santos at a subsequent hearing indicate the amended
order resulted from a discussion that occurred when Polinard appeared before the court to
provide the 50 signatures pursuant to the prior order and additional handwriting exemplar
requirements were added. 2
On June 9, 2006, the parties appeared before the trial court on a motion for docket control
conference and continuance. De Los Santos noted that the date Polinard was set to appear before
Stobaugh was only three days before the trial setting of July 10, 2006. De Los Santos proposed a
three month continuance. The trial judge then asked De Los Santos if he intended to oppose
presenting Polinard on July 7th for purposes of giving his handwriting exemplars because the
docket control order was contingent upon that occurring. De Los Santos responded that Polinard
had requested De Los Santos to file a motion to set aside the mediation agreement which was the
basis for the court’s order. Based on this response, the trial court held the motion for docket
control order and continuance in abeyance. 2 MR. DE LOS SANTOS: … I hope the Court understands that the last time there was just a — unfortunately because of the time schedules, we weren’t able to come on the date specified, but we were here before the Court and my client was willing — more than willing to comply with the Court’s order that existed at the time. If the Court remembers, the ballgame was changed on us and instead of complying with the Court’s order for just the 50 signatures, they wanted a whole bunch of other things, and the Court graciously allowed —
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On July 7, 2006, the parties appeared before the trial court on a request for an emergency
setting on “Defendant’s Motion to Strike Expert Witness and to Set Aside and Void Mediation
Agreement,” which was filed by mail and subsequently file-stamped on July 11, 2006. The
motion requested that Stobaugh be stricken based on his perceived bias “in favor of the Plaintiff”
and that the mediation agreement be set aside because the scope of the examination necessary for
Stobaugh to render an opinion was more onerous than Polinard envisioned when he entered into
the mediation agreement. The trial court denied the motion for the expedited hearing. The trial
court also granted an oral motion to drop the July 10th trial setting.
Imposition of Sanctions
On September 19, 2006, the parties appeared before the trial court on Plaintiffs’ Second
Amended Motion for Sanctions, Defendant’s Motion to Strike, and Defendant’s motion for
docket control order which previously was held in abeyance. Stobaugh and De Los Santos
testified regarding the events that transpired when Polinard appeared before Stobaugh to provide
the handwriting exemplars. Stobaugh testified that De Los Santos stated that they were finished
after Polinard completed only part of one page of a 20 page handwriting exemplars packet,
which was a usual and customary tool used to render handwriting opinions. De Los Santos
stated that Stobaugh refused to communicate any additional needs after the first page was
complete. Stobaugh testified that no checks were produced and delivered. De Los Santos said
no checks were available from around the time the promissory note was signed. Stobaugh
testified that he requested that a bailiff be present as a third party objective witness. De Los
Santos testified that Stobaugh requested the bailiff for protection.
Stobaugh testified that forensic document examiners use a scale of confidence in
expressing opinions about forensic handwriting comparisons ranging from: (1) inconclusive; (2)
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indications the individual did or did not write the questioned writing; (3) strong probability the
individual did or did not write the questioned writing; (4) positive identification; and (5) positive
elimination. Based on his examination to date, Stobaugh opined that Polinard did write the
questioned signature; however, his opinion was not conclusive, “[t]hus my request for exemplars
and standard checks, genuine cancelled checks, written contemporaneously to the date of the
promissory note.”
Stobaugh testified that rendering an opinion requires an average of a day to work the case
“when you have adequate standards, all things done.” Stobaugh’s fee for a day’s work is
$1,520.00, or $190 per hour for 8 hours. Stobaugh billed an additional $2,095.00 ($190 for 10
hours plus $195 in expenses) for the day he traveled from Austin to San Antonio to collect the
handwriting exemplars from Polinard. Stobaugh billed an additional $2,095.00 for the day he
traveled from Austin to San Antonio to testify at the hearing.
At the conclusion of the hearing, the trial court granted the motion for sanctions and
struck Polinard’s defensive pleadings. The trial court rendered judgment against Polinard on the
promissory note and assessed additional sanctions against De Los Santos, including the payment
of attorney’s fees incurred by Gilmore and Hayes in connection with the motion for sanctions
and payment of the $2,095 billed by Stobaugh to testify at the hearing.
Summary Judgment on Counterclaims
In October of 2006, Gilmore and Hayes filed a no-evidence motion for summary
judgment with regard to Polinard’s counterclaims to which Polinard filed a response. The trial
court granted the motion, and Polinard appealed. This court dismissed the appeal for lack of
jurisdiction, holding the motion failed to address two of Polinard’s counterclaims. See Polinard
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v. Gilmore, No. 04-07-00460-CV, 2008 WL 723325 (Tex. App.—San Antonio Mar. 19, 2008, no
pet.) (mem. op.).
In May of 2008, Gilmore and Hayes filed a second amended and supplemental no-
evidence motion for summary judgment, and Polinard filed a supplemental affidavit. Before a
hearing was set on the motion, however, Polinard filed a third amended counterclaim.
In September of 2011, Gilmore and Hayes filed a no-evidence motion for summary
judgment challenging each claim raised in Polinard’s Third Amended Original Counterclaim.
Polinard did not file a response. The trial court granted the motion and severed additional cross-
claims and counterclaims against other third parties to make the judgment involving the claims
between Gilmore and Hayes and Polinard final.
LEGAL BASIS FOR SANCTIONS
Polinard contends that the trial court did not have a legal basis to impose the sanctions.
Polinard asserts sanctions could not be imposed based on Rule 215 of the Texas Rules of Civil
Procedure because the trial court’s order was not a discovery sanction. Polinard also asserts that
the trial court could impose sanctions pursuant to its inherent power only if the sanctions were
authorized by a rule or statute. We disagree.
“The inherent judicial power of a court is not derived from legislative grant or specific
constitutional provision, but from the very fact that the court has been created and charged by the
constitution with certain duties and responsibilities.” Eichelberger v. Eichelberger, 582 S.W.2d
395, 398 (Tex. 1979). “The inherent powers of a court are those which it may call upon to aid in
the exercise of its jurisdiction, in the administration of justice, and in the preservation of its
independence and integrity.” Id. “Even in the absence of an applicable rule or statute, courts
have the authority to sanction parties for bad faith abuses if it finds that to do so will ‘aid in the
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exercise of its jurisdiction, in the administration of justice, and the preservation of its
independence and integrity.’” Roberts v. Rose, 37 S.W.3d 31, 33 (Tex. App.—San Antonio
2000, no pet.) (quoting In re Bennett, 960 S.W.2d 35, 40 (Tex. 1997)); Kutch v. Del Mar
College, 831 S.W.2d 506, 510 (Tex. App.—Corpus Christi 1992, no writ) ( “Texas courts have
the inherent power to sanction for abuse of the judicial process which may not be covered by rule
or statute.”); see also In re Killian, No. 04-01-00598-CV, 2002 WL 873256, at *3 (Tex. App.—
San Antonio 2002 May 8, 2002, no pet.) (holding courts possess inherent power to sanction) (not
designated for publication).
“The power to compel compliance with valid orders incident to the administration of
justice is fundamental, and closely related to the core functions of the judiciary.” Kutch, 831
S.W.2d at 510. A “[v]iolation of a court order relating to the court’s management and
administration of a particular legal claim generally will be a significant interference with one or
more of the judiciary’s functions.” Id. at 511-12. Accordingly, courts have the inherent power
to sanction a party for failing to comply with a court order even in the absence of an authorizing
rule or statute. Id. at 510; see also In re K.A.R., 171 S.W.3d 705, 715 (Tex. App.—Houston
[14th Dist.] 2005, no pet.) (upholding sanction for failure to comply with trial court’s order to
participate in mediation).
In this case, Polinard was ordered to appear before Stobaugh and provide “all
handwriting exemplars as requested by Stobaugh.” The trial court’s order was consistent with
the parties’ mediation agreement pursuant to which Polinard agreed to provide “all …
handwriting exemplars as requested by the expert” and to “personally provide handwriting
exemplars directly to the expert in person.” The evidence established that Polinard violated the
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trial court’s order by failing to provide all handwriting exemplars requested by Stobaugh.
Therefore, the court’s inherent power provided a legal basis for the imposition of sanctions.
APPROPRIATENESS OF SANCTIONS
Polinard contends the trial court abused its discretion by imposing a death penalty
sanction without a showing of a direct relationship between the alleged offensive conduct and the
sanction imposed. Polinard further contends the sanction was excessive, and the trial court failed
to consider a lesser sanction. Finally, Polinard contends the sanction was based on a sua sponte
order entered without due process of law.
We review the trial court’s imposition of sanctions under an abuse of discretion standard.
In re Killian, 2002 WL 873256, at *4. A trial court abuses its discretion when it acts without
reference to any guiding rules or principles. Id. In order to find an abuse of discretion and
reverse the sanctions order, we must determine that the trial judge could issue but one ruling —
that death penalty sanctions were not warranted. Id.
A. Due Process
A trial court’s power to sanction is limited by due process. Id. at *3; Kutch, 831 S.W.2d
at 511. Due process requires notice and a hearing before imposing sanctions. Kutch, 831
S.W.2d at 511.
Polinard does not complain that he was not provided notice of the motion for sanctions or
a hearing on that motion before the trial court imposed the sanctions, and the record clearly
reflects that he was provided both. Instead, Polinard contends that the sanctions are based on his
violation of an order that the trial court entered sua sponte without notice or a hearing. We
disagree.
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The order Polinard was found to have violated was based on the parties’ mediation
agreement. In that agreement, the parties agreed to have a handwriting expert appointed by the
court if the parties could not agree on an expert, and Polinard agreed to provide all handwriting
exemplars requested by the expert. The trial court’s order in furtherance of the parties’
mediation agreement was entered after two hearings and, as previously noted in footnote 2, after
an apparent discussion involving an amendment to the order. Accordingly, Polinard’s due
process complaint is overruled.
B. Transamerican Standards
In Transamerican Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991), the Texas
Supreme Court held “whether the imposition of sanctions is just is measured by two standards.”
“First, a direct relationship must exist between the offensive conduct and the sanction imposed.”
Id. Thus, “the sanctions the trial court imposes must relate directly to the abuse found.” Id.
“Second, just sanctions must not be excessive.” Id. A sanction “should be no more severe than
necessary to satisfy its legitimate purposes.” Id. Accordingly, a trial court “must consider the
availability of less stringent sanctions and whether such lesser sanctions would fully promote
compliance.” Id. Sanctions should not be used to adjudicate the merits of a party’s defenses
“unless party’s hindrance of the discovery process justifies a presumption that its claims or
defenses lack merit.” Id. at 918. “Sanctions which are so severe as to preclude presentation of
the merits of [a defense] should not be assessed absent a party’s flagrant bad faith or counsel’s
callous disregard” for the rules. Id.
In this case, the sanction imposed precluded Polinard from asserting that he did not sign
the promissory note. This sanction was targeted at Polinard’s completion of only a portion of
one page of a twenty-page handwriting exemplars request, i.e., Polinard’s failure to provide
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Stobaugh all handwriting exemplars he requested. Accordingly, a direct relationship existed
between Polinard’s failure to provide the requested handwriting exemplars and his inability to
assert a defense on which the handwriting expert was to opine, i.e., whether he signed the
promissory note.
With regard to less stringent sanctions, the trial court could take into consideration that a
previous court order was issued to force Polinard to comply with his responsibilities with regard
to the expert as set forth in the parties’ mediation agreement. Moreover, two status conferences
were undertaken to work out the details of providing the expert with the necessary handwriting
exemplars. Finally, although Polinard’s attorney stated an intention to file a motion to set aside
the mediation agreement one month before the date Polinard was set to appear before Stobaugh,
the motion was not filed until the day before Polinard was to appear, which the trial court could
construe as further efforts by Polinard to delay the provision of his handwritten exemplars
despite the prior agreement. Based on the foregoing, the trial court could have determined that
Polinard’s refusal to comply with Stobaugh’s requests justified a presumption that his defense
regarding his signature lacked merit. The trial court could further have determined that
Polinard’s refusal to comply with Stobaugh’s requests demonstrated flagrant bad faith and
callous disregard for the trial court’s order. Accordingly, the trial court did not abuse its
discretion in imposing death penalty sanctions.
TERMS OF MEDIATION AGREEMENT
In his second issue, Polinard asserts the trial court abused its discretion in entering an
order contrary to the terms of the parties’ mediation agreement. See Vickrey v. American Youth
Camps, Inc., 532 S.W.2d 292, 292 (Tex. 1976) (“A final judgment which is founded upon a
settlement agreement reached by the parties must be in strict or literal compliance with that
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agreement.”). The order entered by the trial court, however, did not modify the terms of the
parties’ agreement. The parties agreed to the appointment of an expert, and Polinard agreed to
provide all necessary documents and handwriting exemplars requested by the expert. Rather
than modifying the terms of the mediation agreement, the trial court’s order facilitated
compliance with the agreement. The mediation agreement contemplated an order by the trial
court appointing an expert, and the trial court’s order was in accordance with the agreement.
Polinard also contends the agreement required the parties to return to the mediator to
resolve future disputes. The mediation agreement required the parties to return to mediation to
resolve “any disputes or disagreements between these parties on the matters included in this
session.” The matters included in the session involved the appointment of a handwriting expert.
The parties did not dispute that they agreed to such an appointment. In fact, Polinard does not
dispute the contents of the mediation agreement; he simply no longer wishes to comply with its
terms. The agreement expressly provided, however, that it could not be revoked and judgment
could be entered based on the agreement. Accordingly, because the parties were not in dispute
regarding their agreement to appoint a handwriting expert, no dispute arose that required them to
return to mediation.
Polinard also contends the trial court abused its discretion because the fees assessed by
Stobaugh exceeded the fees as stated in the agreement. The trial court’s orders, however,
contained no provision contrary to the fee-splitting provision in the mediation agreement. The
only order entered by the trial court addressing the fees states that they would be shared and
would not exceed $1,000.00 per side. Moreover, the fees were not the basis for the trial court’s
sanctions. The sanctions were based on Polinard failing to provide the handwriting exemplars
requested by Stobaugh. Accordingly, the trial court’s order did not modify the fee-splitting
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provision contained in the mediation agreement, and the amount of fees had no bearing on the
trial court’s sanctions order.
Finally, Polinard asserts the order was vague. Both the order and the mediation
agreement, however, clearly stated that Polinard would provide all handwriting exemplars
requested by the expert. Although Polinard may have been unaware of the number of exemplars
the expert would request, this does not render the language used in either the mediation
agreement or the order vague.
NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT
Polinard concedes in his brief that he failed to file a response to the no-evidence motion
for summary judgment granted by the trial court. Polinard asserts, however, that evidence was
on file in response to prior motions that the trial court could consider.
“Absent a timely response, a trial court must grant a no-evidence motion for summary
judgment that meets the requirements of Rule 166a(i).” Imkie v. Methodist Hosp., 326 S.W.3d
339, 343 (Tex. App.—Houston [1st Dist.] 2010, no pet.). Stated differently, “[f]ailure to respond
to a no-evidence motion is fatal.” Michael v. Dyke, 41 S.W.3d 746, 751 (Tex. App.—Corpus
Christi 2001, no pet.). Because Polinard failed to file a response to the no-evidence motion for
summary judgment that was granted by the trial court, the trial court did not err in granting the
motion.
CONCLUSION
The trial court’s judgment is affirmed.
Catherine Stone, Chief Justice
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