Opinion issued February 7, 2013




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                          ————————————
                             NO. 01-11-00606-CV
                          ———————————
      ABRAHAM MELAWER AND DONALD CAHILLY, Appellants
                                       V.
              TOTAL AIRCRAFT SERVICES, INC., Appellee



             On Appeal from County Civil Court at Law No. 2
                          Harris County, Texas
                     Trial Court Case No. 930,447



                      MEMORANDUM OPINION

     The primary issue in this appeal is the validity of a $25,000 sanctions order.

We affirm.
                                  Background

      In December 2008, Abraham Melawer sued appellee Total Aircraft Services,

Inc. for a declaratory judgment to invalidate a $1,737.90 mechanics lien on

Melawer’s airplane for repairs Total claimed it performed in November 2003.

Total answered in March 2009 and filed a counterclaim for breach of contract for

$1737.90.

      After a bench trial, Total sought $75,000 in sanctions against Melawer and

his lawyer, appellant Donald Cahilly, to compensate Total for attorney’s fees for

what it claimed was a frivolous lawsuit and Melawer’s perjury. Total argued that

Melawer had created a false alibi at trial: the airplane had been chartered and was

in Baton Rouge from November 5 to 10, 2003, and Total could not have worked on

it during that time. At the sanctions hearing, Total’s counsel argued to the trial

court as follows:

             The reason they had to know that this lawsuit was frivolous was
      in the Bonometti trial, B-O-N-O-M-E-T-T-I, Mr. Melawer gave a
      deposition. The lawyer appearing on behalf of Mr. Melawer was Don
      Cahilly. The main issue or one of the main issues in that case was the
      use of the aircraft, “What were you doing with this aircraft?” And on
      page 6 of our motion, we go through all of the evidence that Mr.
      Melawer testifies to saying that he never used that aircraft to fly
      charter flights. He positively asserts that whenever he flew a charter
      aircraft, he always flew his customer’s airplane, never this aircraft.
      Point after point after point, that is inconsistent with Mr. Melawer’s
      alibi.
             Mr. Melawer, in the earlier version of this lawsuit in Randy
      Wilson’s court, testified that he last worked on the plane in
      November. That was his testimony then. Mr. Herbert [counsel for
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      Total] impeached him on that point. So, when talking about what is a
      frivolous lawsuit, a frivolous lawsuit is one which the rules define as
      one having no basis in law or fact. The fact in this issue, in this
      lawsuit, that was in dispute was the fact of whether we did the repairs
      on November 6th, 2003. And the only way Mr. Melawer was able to
      survive summary judgment was by refusing to call the FAA to find
      out when we filed the lien until the day of trial when we were told that
      they were going to stipulate to that, and by manufacturing evidence to
      suggest that there was a fact issue as to when this aircraft was flown.
      And that evidence that was manufactured was the affidavit that was
      attached to a response in the summary judgment motions that were
      filed.

The trial court summarized its concerns to Cahilly at the hearing as follows:

              So, that’s where I’m at. I don’t know if you [Cahilly] directly
      participated in it. But you represented Mr. Melawer in the other case.
      You knew that the testimony and that these attorneys were under the
      impression this was not a charter plane so why would they be asking
      for, in defense of this suit, charter information if you’ve already
      testified it was never used for charters. Well, guess what? The alibi
      said it was chartered. That’s the kind of thing that makes people get a
      little nuts in law because there are certain things that should be
      absolutely. They should be black and white.
              ...
              And so, given that, I don’t know if you [Cahilly] were
      compliant in it or not. I don’t know because I don’t know your
      relationship with your client. And I’m not delving into that. I’m
      looking at, as a whole, if Mr. Melawer misrepresented to you that the
      work wasn’t done and he knew it was done and he didn’t put the
      sticker in the logbook, then that’s Mr. Melawer’s problem and he is
      abusing my court. And he is abusing the court systems of the United
      States and especially the State of Texas. And he is wasting time
      where other cases should be tried. And he just wanted to get out -- he
      just didn’t want to pay him [Total] because he was mad at him. And
      he wanted to use the court system to punish him. And that’s not what
      these are for. These are for genuine disputes. And I find that the
      work was done and he knew it was done.
              MR. CAHILLY: I take your judgment. I accept the judgment,
      but -- and this is where I run into a conflict with my client is I don’t
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believe that I did anything improper in any way in this case. And, you
know, if we need to have a trial on that issue, we can have a trial on
that issue, but, you know, I guess I want to --
        THE COURT: I don’t want to have a trial on that issue. I think
it is between you and your client if I award sanctions. And you can
have your confidential conversation with your client about what needs
to happen. And if it doesn’t get resolved, then you can bring whatever
you need to bring and properly allocated at a later date. Because I am
not going to get into your attorney-client relationship at this point in
time because I’m going to give you an opportunity to work that out
with your client. Whether or not I award sanctions, though, I am --
like I said, I do think there was perjury committed in my Court. And I
do think it was -- that part of it, I think was intentional, and that part
warrants sanctions.

On January 31, 2011, the trial court signed three documents:

      • First, a final judgment (a) awarding Total $1,737.90 from Melawer

with prejudgment interest, (b) declaring that Total’s lien was valid, (c)

ordering Melawer to pay Total $35,000.00 in attorney’s fees pursuant to

Civil Practice and Remedies Code chapter 38, (d) awarding Total

$25,000.00 in sanctions from Cahilly and Melawer, jointly and severally,

and (e) postjudgment interest on all amounts.

      • Second, a twelve-page sanctions order awarding Total $25,000.00 in

sanctions from Cahilly and Melawer, jointly and severally for each of the

following: (a) $25,000.00 as sanctions for violations of Texas Rule of Civil

Procedure 13 and Civil Practice and Remedies Code chapter 10 for, inter

alia, filing frivolous pleadings and perjured documents; (b) $25,000.00 as

sanctions for violations of Texas Rule of Civil Procedure 215 for discovery
                                    4
      abuse by both Cahilly and Melawer; (c) and $25,000.00 as sanctions for

      violations of Texas Rule of Civil Procedure 166a(h) for making false

      affidavits and fabricating records. The sanctions order further found that

      sanctions were “justified based on the totality of the violations it finds were

      committed by Messrs. Cahilly and Melawer. These abuses were not isolated

      or accidental, but willful, deliberate and calculated, all in an attempt to

      perpetrate a fraud on this Court and to extract a benefit from [Total]: the

      release of its valid lien without paying for the repairs [Total] performed on

      the Aircraft.” The trial court nonetheless ordered that Total “is entitled to

      recover one sanction in the total amount of $25,000.00, against Messrs.

      Cahilly and Melawer, jointly and severally.”

             • Third, a nine-page findings of fact and conclusions of law.

Prior to the expiration of its plenary power, the trial court signed a revised final

judgment on April 14, 2011, which recited the provisions of the January 31, 2011

judgment and added an award of appellate attorney’s fees.

      On May 20, 2011 Melawer filed a motion for new trial in which he argued:

(1) any sanctions based on the original lawsuit—that the lien was invalid for failure

to give the name and address of the owner of the aircraft—was not frivolous when

made and consequently any sanctions based on the original allegation should be

reconsidered; (2) Total’s “counterclaim” for breach of contract was barred by

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limitations and Civil Practice and Remedies Code section 16.069 does not apply to

allow the “counterclaim” to be filed, thus the $1,737.90 breach-of-contract award

and the $35,000.00 in attorney’s fees should be set aside; and (3) sanctions should

not be awarded “simply because [the trial court] finds one side’s proof more

persuasive than the other side’s.” On May 16, 2012, Cahilly filed a motion for

new trial in which he argued that it was error to award sanctions because: (1) no

sanctionable conduct took place; (2) the sanction was not directly related to the

offensive conduct; (3) the sanctions awarded will not secure the parties’

compliance with the rules, punish violators, and deter others; (4) the sanction

awarded was excessive and more severe than necessary; (5) no nexus exists

between the conduct, offender, and sanction; (6) the sanction is arbitrary,

capricious, and without regard to guiding law; (7) the sanction penalizes filing a

lawsuit and properly representing a client; (8) the sanction is not supported by the

evidence; and (9) there was no abuse of the rules of discovery, filing of documents,

or pleading. Neither Melawer nor Cahilly specifically challenged in the trial court

the three independent $25,000.00 bases for the one unitary $25,000 sanction, and

neither Melawer nor Cahilly objected below to the joint-and-several nature of the

sanction. Both Melawer and Cahilly filed timely notices of appeal.




                                         6
                                        Discussion

Melawer’s appeal

         Melawer brings two issues: (1) the trial court erred in imposing a $25,000

sanction on him because a trial court cannot impose sanctions when the basic facts

are in dispute and (2) Total’s “counterclaim” is barred by limitations. In his first

issue, Melawer does not specifically does not challenge the sufficiency of the trial

court’s findings of fact.       Rather, he argues that the common law bars the

imposition of sanctions based on disputed facts when the evidence allows a

fact-finder more than one “permissible view.”            Melawer grounds this policy

argument in appellate-opinion statements that “undisputed evidence” was

presented in the trial court or that parties relied on allegations outside their

personal knowledge. See, e.g., Low v. Henry, 221 S.W.3d 609, 617 (Tex. 2007);

Keith v. Keith, 221 S.W.3d 156, 167 (Tex. App.—Houston [1st Dist.] 2006, no

pet.).

         Melawer’s policy argument contends that lawyers and their clients should

not be subject to sanctions merely because the fact-finder finds against them. But

he is also candid with this Court in arguing the basis for the sanction:

                It is true that the sanctions did not exclusively rest on Judge
         Smith’s credibility determinations. She faulted Mr. Melawer for
         withholding the flight log and charter records that had been requested
         in discovery and for wrongfully arguing that such documents were
         irrelevant. And she justified sanctions in part because Mr. Melawer
         did not reveal its alibi defense in answers to interrogatories or requests
                                             7
      for admissions even though the discovery requests clearly and
      properly called for disclosure of this information. Rather, Melawer
      revealed the alibi defense for the first time at trial.
            Undoubtedly, sanctions can be imposed on parties who do not
      comply with discovery obligations. To the extent Mr. Melawer did
      not do so, Judge Smith might have found some sanctions in order.

(Record citations omitted).

      Without deciding the legal issue of whether sanctions can be imposed on

disputed facts when the evidence allows a fact-finder more than one “permissible

view,” we note that the trial court made 24 findings and conclusions to support its

$25,000 sanction under Texas Rule of Civil Procedure 215, which addresses

discovery sanctions. But even if Melawer had challenged the sufficiency of all of

those findings, there is nonetheless sufficient evidence—for example, Melawer’s

August 2008 and September 2009 affidavits asserting that Total performed no

maintenance or repair on the airplane after October 23, 2003 versus Melawer’s

November 2007 deposition testimony in a related case that Total worked on the

airplane in November 2003—from which the trial could have concluded that no

legitimate fact question existed concerning whether Total did the repairs on

November 6, 2003.

      To be successful, an appellant must challenge every independent basis on

which the trial court’s judgment can be sustained. See Cincinnati Life Ins. Co., v.

Cates, 927 S.W.2d 623, 625 (Tex. 1996) (discussing summary judgment motion

granted on multiple, independent grounds). Considering (1) the lengthy findings
                                        8
made by the trial court in both the sanctions order and the formal findings of fact

and conclusions of law and (2) the independent grounds for imposition of the

$25,000 sanction, Melawer has not demonstrated reversible error based on the

sanction. Accordingly, we overrule his first issue.

      In his second issue, Melawer contends that Total’s “counterclaim” is barred

by limitations. We acknowledge there appears to be a split of authority on the

issue of whether an underlying breach-of-contract claim is properly characterized

as a counterclaim to an action to declare a lien invalid for the purpose of extending

limitations under Civil Practice and Remedies Code section 16.069. Compare

Wright v. Matthews, 26 S.W.3d 575, 577–78 (Tex. App.—Beaumont 2000, pet.

denied) (holding limitations-barred breach-of-contract claim was not counterclaim

to action to quiet title under section 16.069) with Briargrove Park Prop. Owners,

Inc. v. Riner, 867 S.W.2d 58, 62–63 (Tex. App.—Texarkana 1993, pet. denied)

(stating there was “no dispute” that limitations-barred breach-of-contract claim was

not counterclaim to action to quiet title under section 16.069); TEX. CIV. PRAC. &

REM. CODE ANN. § 16.069 (West 2008).

      Melawer, however, did not obtain a ruling from the trial court on his

limitations defense until his motion for new trial was denied. Nor does Melawer

show on appeal where he introduced evidence on this affirmative defense that it

was his burden to prove. Melawer argues that Total’s claim “would be undeniably

                                         9
barred by limitations if Total [] had been the plaintiff.”       Had proof of the

affirmative defense been introduced and a ruling requested, that might have been

correct, but here no such assertion of limitations was made. A postjudgment

motion is not a timely objection to the lack of a necessary finding of fact on which

evidence is required. See Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex.

1999). We therefore hold that Melawer waived this issue by proceeding to trial

without a ruling on his limitations defense.

      We overrule Melawer’s second issue.

Cahilly’s appeal

      Cahilly argues that the trial court erred in imposing a $25,000 sanction under

(1) Texas Rule of Civil Procedure 13 and Civil Practice and Remedies Code

chapter 10, (2) Rule 215, and (3) Rule 166a(h). He does not specifically challenge

the evidentiary sufficiency of the court’s findings in either the sanctions order or

findings of fact and conclusions of law. Rather, he argues generally that the trial

court improperly applied the law regarding sanctions and that by not securing a

pretrial hearing and ruling, Total waived its claim for sanctions. See Remmington

Arms Co. v. Caldwell, 850 S.W.2d 167, 170 (Tex. 1993).

      We first note that Total disputes it was possible to secure a pretrial hearing

and ruling on sanctions, as the plane-was-in-Baton-Rouge “alibi” arose at trial.

See id. (holding that posttrial sanctions for discovery abuse revealed for first time

                                         10
at trial is not waived). Regardless of whether Total could have raised sanctions

before trial, Cahilly did not timely object to the post-trial sanctions proceedings

and this allegation of error has not been preserved. See TEX. R. APP. P. 33.1(a).

      Moreover, Cahilly never challenges the joint-and-several liability for the

$25,000 sanction award, either in this Court or below. As such, we need not

decide whether the trial court properly attributed improper actions of Melawer to

Cahilly to justify its sanctions award, and hold that Cahilly is independently liable,

jointly and severally, based on Melawer’s conduct. Cahilly’s issues are moot, and

we dismiss them.

                                    Conclusion

      We affirm the trial court’s judgment.




                                              Jim Sharp
                                              Justice

Panel consists of Justices Jennings, Higley, and Sharp.




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