Full Opinion

In The Court of Appeals Ninth District of Texas at Beaumont __________________ NO. 09-26-00113-CV __________________ IN RE FRONTIER CUSTOM BUILDERS, INC. __________________________________________________________________ Original Proceeding 284th District Court of Montgomery County, Texas Trial Cause No. 23-06-08030 __________________________________________________________________ MEMORANDUM OPINION Relator Frontier Custom Builders, Inc. (“Frontier”) contends the trial court clearly abused its discretion by imposing a case-determinative sanction and it lacks an adequate remedy by appeal. We temporarily stayed all further proceedings in the trial court while we considered the merits of the mandamus petition. Real Parties in Interest Maurice Jordan and Shayla Jordan (“the Jordans”) filed a response. We conditionally grant mandamus relief. 1 Background Frontier sued the Jordans for the breach of a residential construction contract, violation of the Prompt Payment Act, and for foreclosure of its Chapter 53 and constitutional liens. The Jordans filed an answer—which contained a general denial and affirmative defenses of payment, failure to mitigate, offset, unclean hands, prior material breach, and failure to act in a commercially reasonable manner—and a counterclaim for breach of contract, breach of express and implied warranty, and invalid and unenforceable lien. Frontier answered the Jordans’ counterclaim with a general denial, affirmative defenses of failure to mitigate and failure of consideration, and a verified denial that all conditions precedent have occurred or been otherwise satisfied. The Jordans amended their pleadings to add Aztec Design and Build, LLC (“Aztec”) as a third-party defendant. They alleged Frontier fraudulently applied to the design committee in the name of Aztec and obtained approval to start construction on the Jordans’ home, and they added claims against Frontier for statutory fraud, common law fraud, fraud by nondisclosure, and deceptive trade practices, in addition to their claims for breach of contract, negligent misrepresentations, unjust enrichment and invalid and unenforceable liens. As alleged third-party beneficiaries of a contract between Frontier and Aztec—wherein Frontier used Aztec’s name and paid Aztec a $20,000 management fee to serve as a 2 general manager and consultant on the project—the Jordans asserted a breach of contract claim against Aztec for failing to provide guidance as to quality construction and adherence to Carlton Woods guidelines, to review Frontier’s work with someone qualified from the company, or prepare a weekly checklist of the work. Aztec answered the Jordans’ suit with a general denial. The parties filed their pretrial filings and attended a court-ordered mediation a few days before trial. On November 3, 2025, the Jordans filed a notice of nonsuit with prejudice as to Aztec. The trial court granted Frontier’s motion for leave to designate Aztec as a responsible third party on November 24, 2025. On November 3, 2025, the same day the Jordans filed their nonsuit with prejudice as to Aztec, the Jordans filed a Motion for Death Penalty Sanctions and Motion for Default Judgment on Liability as to Frontier. They alleged that on November 1, 2025, Wayne Bopp, Frontier’s designated corporate representative, telephoned Aztec’s owner, Ernesto Rios, in what they described as an attempt to influence Rios’s trial testimony by repeatedly asking Rios if he believed they had committed fraud. The Jordans accused Bopp of tampering with a witness in an attempt to alter, influence, or fabricate or change the testimony of a crucial witness. They attached an affidavit from Rios, in which he stated that Bopp apologized that he was in the case and mentioned fraud three times. Rios stated that he felt uncomfortable and felt Bopp was trying to influence his testimony by asking if they 3 had committed fraud. Rios stated he told Bopp he would tell the truth in court. He added that he knew the application was misleading and wrong because he was not the actual builder of the Jordans’ home and he did not work on the home but was paid $5,000 to submit the application. In its response to the motion for sanctions, Frontier argued that because Aztec was a defendant at the time of the communication, any communication between them was not witness tampering but rather a conversation between existing parties, the call was not deceptive, and Bopp neither provided a false discovery response nor altered evidence. Frontier argued death penalty sanctions were unwarranted because no testimony had been changed, no evidence had been compromised, and no discovery order had been violated. Frontier argued the conversation was privileged joint-defense or allied-litigant communication. See Tex. R. Evid. 503(b)(1)(C). In a supplemental response supported by Bopp’s affidavit, Frontier claimed the suggestion to proceed with the build under a name of an entity other than Frontier came from Maurice Jordan, who directly orchestrated Aztec’s involvement in the application process through a series of text messages. In his affidavit, Bopp stated he had no reason to believe that the conversation would be improper, given that a few months before Maurice Jordan contacted Bopp directly to suggest that they settle the case directly without their lawyers. 4 The Hearing The trial court heard the Jordans’ motion for death penalty sanctions on November 3, 2025. The trial court ruled that both Aztec and Frontier waived their joint defense privilege. The Jordans argued that Bopp’s conversation with Rios was “tampering with the administration of justice.” The trial court Mirandized Bopp before he testified. Rios testified that he had not heard from Bopp for two years until they spoke briefly during mediation. Rios testified that he was surprised when he answered the call the Saturday before trial because he had mistakenly saved both Bopp’s and Maurice Jordan’s phone numbers under Maurice Jordan’s name four years earlier. Bopp was not rude or angry but was “very nice[]” and apologized for Rios getting dragged into the litigation. Bopp mentioned “fraud” at least three times as though Bopp was trying to persuade Rios that they had not committed fraud. Rios did not think Bopp was trying to change what he would testify to. Rios told Bopp, “I’m just going to say the truth. I don’t want to hurt anybody, but I will say the truth, whatever it is.” Rios agreed he knew submitting the application to Carlton Woods HOA was misleading and wrong, and that is what Rios thought Bopp was referring to in their conversation. Rios testified that he wanted to help a “very, very good friend[]” who worked at Frontier and asked if Rios could help Frontier “pull permits” in Carlton Woods, 5 for which he was offered $20,000 per house. Rios agreed that he submitted the application to Carlton Woods but he did not recall if the Jordans were involved. According to Rios, “There was some communication with everybody.” He agreed both he and Maurice Jordan signed the application but he did not recall if they signed the application at the same time. According to Rios, Rios believed the trial had already been cancelled when Bopp called him. Rios stated he was trying to change the conversation and may have mentioned to Bopp that the Jordans had agreed to dismiss their claims against Aztec. Bopp did not offer Rios money to change his testimony, nor did Bopp threaten that some harm would come to him if he did not testify that there was no fraud. Rios did not fear for his safety and he did not leave the conversation concerned that Frontier might sue Aztec. Rios thought Aztec was being sued by the Jordans “for money and payment for bad work[]” and did not appreciate that at the time of the conversation the Jordans were suing Aztec for fraud. Rios stated that the permit application misled the homeowners’ association. Rios also testified that Bopp did not offer Rios any benefit to testify there was no fraud and no one offered to pay him or pay his attorney’s fees if he testified in a certain way. Bopp did not ask Rios to testify falsely or to not testify at all. Bopp ended the conversation after Rios told Bopp he would testify truthfully. The trial court asked if he believed Bopp was trying to “influence your testimony” Rios responded that Bopp was trying to “kind of tell me that there 6 was no fraud committed[]” and added that he, Rios, did not want to mention the word “fraud” because he thought of what they did with the permit application as “misleading” and he asked Bopp to draw up the Frontier-Aztec contract “to kind of not be misleading the association.” Rios stated that he told Bopp, “Look, your lawyer could ask whatever they want also to me. I don’t think I am a witness to no one I could help you in other ways if you ask the right questions … about other things, situations that were happening after COVID and all of that, you know.” The hearing resumed on February 19, 2026. Bopp testified that he is Frontier’s corporate representative. Bopp stated that since the lawsuit began, he spoke with Rios “a couple of times.” Bopp admitted he had not spoken to Rios in the previous year but called him on the eve of trial. Bopp denied that he asked Rios “to say that it wasn’t fraud.” Bopp stated in deposition that he was not aware of any time that Rios was on the work site and he was not aware that Rios performed any checklist. Bopp denied that he was trying to get Rios to change his testimony. Bopp claimed he called Rios because “there wasn’t a single moment during the course of constructing that house that Mr. Jordan ever had a complaint about [Rios], not a single complaint. And to bring him in at the end was completely wrong, in my opinion.” Bopp claimed he told Rios, “[W]e haven’t done anything wrong, you haven’t done anything to Mr. Jordan to deserve this, it – it will work out. I have documentation of every single thing that we’ve done with Mr. Jordan.” Bopp 7 claimed he was trying to console Rios and he merely assured Rios that they had not hidden anything from Maurice Jordan. Bopp denied that he was aware that Rios had already agreed to testify for the Jordans in exchange for the Jordans’ dismissing their claims against Aztec. Bopp denied making a threat to Rios, inciting fear for his or his family’s safety, demanding that Rios testify for Frontier, raising a negative consequence if he did not testify on Frontier’s behalf at trial, offering any financial benefit if he testified a certain way at trial, or offering to pay his attorney’s fees if he offered to testify in a certain way at trial. He further denied attempting to influence Rios’s testimony, coercing Rios, asking Rios to testify falsely, asking Rios to be absent from trial, or asking Rios to withhold any testimony, information, or documents. The Order In its Sanctions Order, the trial court states that “death penalty sanctions are not warranted here” but that “disallowing any further questioning of the witness is.” The trial court found, Mr. Bopp applied pressure in his attempt to change the testimony of a witness, making a sanction of disallowing any further questioning of that witness on-point with the offense. Mr. Bopp tried to influence testimony, he is no longer permitted to question that witness and cannot cry constitutional violation because he made his bed. Had he been successful, the defense would have been faced with hearing a witness testify to things the witness was saying only under duress—perhaps even perjury—which hardly makes Mr. Bopp’s claim about his due process rights persuasive. He attempted to undercut the veracity of the trial; he does not get to hide behind the 14th Amendment now. 8 The trial court found: 1. Wayne Bopp called Ernesto Rios in order to persuade him to testify in a certain way to either deny or downplay any questions about acts of fraud. 2. The Court was interested to hear Mr. Rios’ view of that call to determine if Mr. Bopp was looking for reassurance or was trying to persuade Mr. Rios to testify falsely. Based upon not only Mr. Rios’ testimony but also his mannerisms, his body language, the general look he had while testifying, the Court concluded that he perceived that he was being manipulated and had good reason to think so. 3. Each time Mr. Rios tried to change the subject, Mr. Bopp steered him right back to the question of “You don’t believe it was fraud, do you?” 4. The underlying facts demonstrate that Mr. Bopp had not communicated with Mr. Rios for years - and not ever after Mr. Rios’ company was joined in the lawsuit. Instead, Mr. Bopp waited until the night before trial to place that call, timing which again- could be looking for reassurance or trying to manipulate an outcome and, again, the Court concludes it was the latter. 5. The Court wanted to hear Mr. Bopp’s testimony and it was delayed for a long period (through no fault of Mr. Bopp), but when he finally gave his testimony, it did nothing to change the Court’s impressions about what had happened. 6. Mr. Bopp denied saying the words Mr. Rios said that he said related to there was no fraud; the Court does not find him credible on that point. 7. Likewise, Mr. Bopp’s explanation was that he had seen people be taken advantage of in the construction business, he knew Mr. Rios has a “good heart”, he noted that Mr. Rios was trying to help the Jordans so Mr. Bopp did not like that the Jordans sued Mr. Rios’ company, so he said, “I think this is wrong – you’ve done nothing wrong” to Mr. Rios. The Court finds that this story lacks credibility. If his feelings of 9 concern were true, then the two years of no chatting and waiting until the day before trial to have that conversation makes no sense. Mr. Bopp claims that he was trying to reassure and console Mr. Rios because he felt bad for Mr. Rios, but Mr. Rios’ testimony flatly contradicts that notion. Mr. Bopp also noted on direct examination that he didn’t know he wasn’t supposed to speak directly to a represented party, but then on cross he used that very thing in an attempt to explain why no calls prior to the night before trial. Finding “this phone call was made in bad faith and was an attempt to influence a witness’ testimony for trial. The behavior is not death penalty sanctions extreme however, but it likewise cannot be ignored and punishing the behavior by protecting the witness is appropriate[],” the trial court ordered that Frontier “is precluded from calling Ernesto Rios as a witness at trial and from examining Ernesto Rios at trial.” Mandamus Standard We may issue a writ of mandamus to remedy a clear abuse of discretion by the trial court when the relator lacks an adequate remedy by appeal. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). “A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” Walker, 827 S.W.2d at 839 (internal quotations omitted). A trial court also abuses its discretion if it fails to correctly analyze or apply the law, because a trial court has no discretion in determining what the law is or in applying the law to the facts. See In re Prudential Ins. Co. of Am., 148 S.W.3d at 135; Walker, 827 S.W.2d at 840. 10 We determine the adequacy of an appellate remedy by balancing the benefits of mandamus review against the detriments, considering whether extending mandamus relief will preserve important substantive and procedural rights from impairment or loss. In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig. proceeding). An appeal is not an adequate remedy if the very act of proceeding to trial—regardless of the outcome—would defeat the substantive right involved. In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 465 (Tex. 2008) (orig. proceeding). Arguments In its mandamus petition, Frontier argues the trial court abused its discretion by using its inherent power to sanction without first making the required finding that Frontier caused significant interference with the legitimate exercise of the traditional core functions of the court. The Jordans argue the trial court need not find that the party caused significant interference with the legitimate exercise of the traditional core functions of the court, and further argue the finding may be implied from the trial court’s finding that Bopp called Rios in bad faith in an attempt to influence a witness’s testimony for trial. Frontier contends the trial court’s Sanctions Order impermissibly infringes on Frontier’s Due Process protections. Frontier argues the trial court failed to make a finding necessary to link Bopp’s “bad faith” to Frontier. The Jordans argue that as Frontier’s corporate representative, Bopp’s acts can be imputed to Frontier. 11 Frontier asserts that the sanctions order fails to satisfy the constitutional and proportionality requirements articulated by the Texas Supreme Court. Frontier contends a direct relationship must exist between the sanction imposed and the offensive conduct, and that absent any proof that evidentiary restrictions are necessary to address ongoing misconduct, the sanction eliminating Frontier’s ability to cross-examine a central witness does not remedy prejudice but restructures the trial itself and thus exceeds what is necessary to accomplish the legitimate purposes of sanctions. Frontier complains that the trial court failed to test lesser sanctions. The Jordans argue the trial court declined to impose warranted death-penalty sanctions and instead imposed a proportionate sanction that does not implicate due process. They claim Rios’s testimony is not necessary to Frontier’s presentation because Bopp testified Rios did nothing wrong. Analysis “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. 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.” Eichelberger v. Eichelberger, 582 S.W.2d 395, 398 (Tex. 1979). The trial court’s inherent powers include the power to sanction. Brewer 12 v. Lennox Hearth Products, LLC, 601 S.W.3d 704, 718 (Tex. 2020). “The inherent authority to sanction is limited by due process, so sanctions must be just and not excessive.” Id. “[I]nvocation of the court’s inherent power to sanction necessitates a finding of bad faith.” Id. “Bad faith is not just intentional conduct but intent to engage in conduct for an impermissible reason[.]” Id. at 718-19. “Bad faith can be established with direct or circumstantial evidence, but absent direct evidence, the record must reasonably give rise to an inference of intent or willfulness.” Id. at 719. The proper exercise of the power to sanction requires “a direct relationship ... between the offensive conduct and the sanction imposed.” TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991) (orig. proceeding) (considering sanction imposed under Texas Rule of Civil Procedure 215). The Jordans argue the sanction imposed is a justified protection of “their right to a fair judicial process, free from Bopp’s witness-tampering and free from having to question a witness under duress.” After reviewing the record, however, we conclude the mandamus record contains no evidence that would support imposing a civil sanction on Frontier for an allegedly criminal act committed by Bopp. Witness tampering is a criminal offense. Penal Code section 36.05, provides: (a) A person commits an offense if, with intent to influence the witness, he offers, confers, or agrees to confer any benefit on a witness or prospective witness in an official proceeding, or he coerces a witness or a prospective witness in an official proceeding: (1) to testify falsely; (2) to withhold any testimony, information, document, or thing; 13 (3) to elude legal process summoning him to testify or supply evidence; (4) to absent himself from an official proceeding to which he has been legally summoned; or (5) to abstain from, discontinue, or delay the prosecution of another. Tex. Penal Code Ann. § 36.05. The mandamus record contains no evidence that Bopp offered, conferred, or agreed to confer any benefit on Rios, or that Bopp coerced Rios to testify falsely, withhold any testimony, elude legal process, absent himself from the proceeding, or abstain from the prosecution of another. The Jordans’ attorney recognized as much in the hearing when he argued to the trial court that [O]bviously, Judge, this is not a court of criminal jurisdiction. You have civil jurisdiction, so the offense of tampering with a witness, it would have to hasn’t gone before you. It’s tampering with the administration of justice. That’s what it is. And two days before trial, on the eve of trial, to encourage someone to say that it’s not fraud, that’s the essence of our motion. Likewise, in our review of the mandamus record we find no evidence from which the trial court could reasonably find that Bopp’s actions had the potential to cause Rios to testify under duress. Duress is “a threat of harm made to compel a person to do something against his or her will or judgment.” Duress, Black’s Law Dictionary (9th ed. 2009). Rios testified neither Bopp’s words nor his tone made Rios feel threatened, nor did Bopp threaten to sue Aztec if Rios did not testify that there was no fraud on the Jordans. 14 In the hearing, the trial court stated that in the court’s opinion Bopp called Rios hoping they could coordinate their testimony. Some evidence supports a finding that Bopp tried to discover what Rios would say in court, but there is no evidence from which the trial court could reasonably infer that Bopp attempted to persuade Rios to knowingly testify falsely. At most, Bopp attempted to persuade Rios that Frontier’s actions did not constitute fraud. Rios testified: Q. In your declaration that you signed, you stated, He kept asking: You don’t believe it was fraud, right? A. Yes, sir. Q. How many times did he ask you that? A. At least three times. Q. And I know it’s been three or four days since Saturday. When he asked you that, did you feel like he was demanding anything from you? A. Yeah. I felt like he was trying to push that subject, you know, don’t – don’t think it’s fraud, don’t think it’s fraud. Q. He was trying to change your mind? A. Perhaps I felt that way -- I felt that way a little bit, yeah. Q. He was trying to change what you would testify to? A. No. Perhaps that’s how I felt. No. I was just nervous and I – Q. What did you say in return? A. I said, I’m just going to go and say the truth. I’m not on the one side. I don’t -- I don’t want to hurt anybody. (Emphasis added). 15 Bopp testified, “I assured him that we didn’t commit fraud. We didn’t hide anything from Mr. Jordan.” If Bopp’s assurances had convinced Rios to “think” that no fraud occurred, then Rios would be testifying truthfully if he expressed that opinion at trial. During the hearing, Rios never testified that he believes Frontier committed fraud on the Jordans. Without evidence that Rios believes fraud occurred and that Bopp attempted to have Rios testify to the contrary, there is no evidence Bopp intentionally attempted to influence Rios to testify falsely with respect to whether fraud on the Jordans occurred. There is also no evidence Bopp attempted to influence Rios to testify falsely about any fact of which Rios has personal knowledge, which appears to be the appropriate scope of his testimony. Whether the facts of this case amount to fraud is a mixed question of law and fact, and there is nothing in the record to suggest Rios possesses the qualifications to express an opinion on the subject at trial. See Birchfield v. Texarkana Mem’l Hosp., 747 S.W.2d 361, 365 (Tex. 1987) (“[A]n expert may state an opinion on a mixed question of law and fact as long as the opinion is confined to the relevant issues and is based on proper legal concepts.”); United Way v. Helping Hands Lifeline Found., Inc., 949 S.W.2d 707, 713 (Tex. App.—San Antonio 1997, writ denied) (“Lay or fact witnesses, however, are still subject to the general rule that a witness’ testimony must be limited to facts of which the witness has personal knowledge, and a witness must not give a personal opinion 16 or legal conclusion unless he is an expert witness.”). If Rios is not qualified to testify whether Frontier’s actions amounted to fraud, Bopp’s repeated assurances that no fraud occurred could not have influenced Rios to testify falsely. “Due process requires an opportunity to confront and cross-examine adverse witnesses.” Davidson v. Great Nat’l Life Ins. Co., 737 S.W.2d 312, 314 (Tex. 1987). The right to cross-examine witnesses is a fundamental due process right, the denial of which we review with the utmost scrutiny. Nat’l Family Care Life Ins. Co. v. Fletcher, 57 S.W.3d 662, 666 (Tex. App.—Beaumont 2001, pet. denied). In this case, the trial court determined from Rios’s testimony, mannerisms, body language, and “general look he had while testifying” that Rios justifiably “perceived he was being manipulated.” Based on that determination, the trial court deprived Frontier of the opportunity to call and confront Rios at trial. The trial court’s stated rationale for this extreme sanction was to protect Rios. Rios’s company is no longer a defendant in the case now that the Jordans have dismissed their claims against Aztec with prejudice. There is no evidence in the mandamus record that Bopp threatened Rios or his company with any adverse action if he testified at trial. The single telephone call is the only action for which the trial court sanctioned Frontier. The mandamus record reveals no potential for any form of intimidation of Rios by Frontier at trial. Having reviewed the record with utmost scrutiny, we conclude the trial court abused its discretion by imposing an excessive 17 and unjust sanction for conduct that was not shown to have constituted witness tampering. See Brewer, 601 S.W.3d at 718. Inadequate Remedy Citing Walker, the Jordans argue that considering Bopp’s testimony that Rios is not at fault, Frontier failed to establish that the absence of Rios’s testimony denies Frontier a reasonable opportunity to develop the merits if its case such that the trial would be a waste of judicial resources. See 827 S.W.2d at 843. A comparison of the parties’ trial court filings reveals the impact Rios’s testimony may have on the dispute between the Jordans and Frontier. In its response to the Jordans’ motion for sanctions, Frontier asserts the Carlton Woods permit application and the Aztec consulting contract were prepared with Maurice Jordan’s full knowledge and participation for the purpose of obtaining the permission of the homeowners’ association to commence construction. On the other hand, the Jordans’ pleadings on their claim for statutory fraud allege that Frontier and Aztec failed to disclose to the Jordans that Frontier was not approved by the design committee to build in Carlton Woods due to numerous complaints of quality of construction raised by Carlton Woods homeowners; thereafter, Frontier fraudulently applied to the design committee in the name of Aztec and obtained approval to start construction; unbeknownst to the Jordans, the representations made by Frontier and Aztec were wholly false and were merely part 18 of a scheme to defraud the Jordans; Frontier and Aztec made representations to the Jordans with actual knowledge of their falsity; Frontier and Aztec failed to disclose the falsity of the representations made to the Jordans, and benefitted from the undisclosed, false representations from which the Jordans’ sustained injury and damages. The Jordans’ pleadings on common law fraud and fraud by nondisclosure present similar allegations to the effect that Frontier and Aztec made false representations or made partial disclosures but failed to disclose material facts that were both unknown to the Jordans and related to their transactions, and that the Jordans would not have entered into the transactions if the true facts had been disclosed to them. Therefore, the distinction between the parties’ theories of the case is not whether Rios did anything wrong, but whether Maurice Jordan knew the permit application and the consulting contract contained false information intended to induce the homeowners’ association to approve commencement of construction of the contract between the Jordans and Frontier. In the sanctions hearing, Rios agreed that he did talk to Mr. Jordan at least one time during the permitting process. His testimony is relevant and probative of a material fact in dispute. We conclude Frontier lacks an adequate remedy by appeal. Id. 19 Conclusion We conclude the trial court clearly abused its discretion by imposing an excessive and unjust sanction and the relator lacks an adequate remedy by appeal. We lift our temporary order and conditionally grant mandamus relief. We are confident that the trial court will vacate its Sanction Order dated March 4, 2026. The writ shall issue only in the event the trial court fails to comply. PETITION CONDITIONALLY GRANTED. PER CURIAM Submitted on April 13, 2026 Opinion Delivered November 5, 2026 Before Golemon, C.J., Wright and Chambers, JJ. 20