Full Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-25-00287-CV ___________________________ ARLINGTON PAVILION, LLC DBA TEXAS LIVE!; TXL WESTERN SALOON, LLC; PBR COWBOY BAR - TX LIVE; ARLINGTON LIVE, LLC; ARLINGTON BALLPARK DISTRICT ENTERTAINMENT BLOCK, LLC; INNER-PARISH SECURITY CORP.; HASAN PERRYMAN; STEED DUNNILL REYNOLDS BAILEY STEPHENSON LLP; AND C. TIM REYNOLDS, Appellants V. ABEL RODRIGUEZ AND CYNTHIA RODRIGUEZ, Appellees On Appeal from the 96th District Court Tarrant County, Texas Trial Court No. 096-319133-20 Before Sudderth, C.J.; Birdwell and Womack, JJ. Memorandum Opinion by Chief Justice Sudderth MEMORANDUM OPINION After a security guard at a multi-business entertainment center hit Appellee Abel Rodriguez in the head with a glass bottle, Abel and his wife, Appellee Cynthia Rodriguez, sued to recover for their injuries. But when they did so, they sued not only the guard (Appellant Hasan Perryman) but also the guard’s employer (Appellant Inner- Parish Security Corp.) and a group of entities several steps removed—entities affiliated with the entertainment center (Appellants Arlington Pavilion, LLC dba Texas Live!; TXL Western Saloon, LLC dba PBR Cowboy Bar—TX Live; 1 Arlington Live, LLC; Arlington Ballpark District Entertainment Block, LLC; and Arlington Ballpark District Entertainment Block, Inc.; together, the Entities). According to the Rodriguezes, the entertainment center had a duty to ensure that Inner-Parish acted reasonably in its hiring and training of security guards. But the source of this alleged duty was unclear, in part because the Rodriguezes did not offer evidence to unravel the web of legally distinct Entities. Instead, both the 1 At times, TXL Western Saloon, LLC was listed in the record as an entity separate from PBR Cowboy Bar—TX Live and Arlington Pavilion, LLC was listed as an entity separate from the “party doing business as Texas Live!” But the Rodriguezes’ live petition identified TXL Western Saloon, LLC as the party doing business as PBR Cowboy Bar—TX Live and Arlington Pavilion, LLC as the party doing business as Texas Live! Given the lack of evidence distinguishing between the Entities, we number them in accordance with the Rodriguezes’ pleadings. 2 Rodriguezes and their witnesses used the entertainment center’s name—“Texas Live!”—as a collective label for the Entities and their entertainment-center affiliates. 2 The jury found the Texas Live! bundle and Inner-Parish liable for negligence, apportioning liability between them and awarding several million dollars in compensatory damages. The jury then imposed more than $55 million in punitive damages on the Texas Live! bundle, Inner-Parish, and even Perryman, despite his not having been found liable for anything. Later, the trial court added to this sizeable judgment by ordering Inner-Parish and its trial counsel (Appellants C. Tim Reynolds and Steed Dunnill Reynolds Bailey Stephenson LLP; together, Sanctioned Counsel) to pay $5 million in sanctions as punishment for an untimely discovery disclosure. The Entities, Inner-Parish, Perryman, and Sanctioned Counsel all appeal, raising numerous complaints—and understandably so, as the record is rife with error. First and foremost, the Rodriguezes’ failure to distinguish between the Entities— or between the Entities and their nonparty affiliates—means there was no evidence of each individual Entity’s alleged duty, and thus no evidence of the Entities’ liability. This error had the secondary effect of tainting the jury’s findings as to Inner-Parish. Perryman, meanwhile, was not found liable for any cause of action, so the trial court should not have rendered judgment against him at all, much less ordered him to pay 2 The Rodriguezes continue to use the “Texas Live!” label on appeal and fully acknowledge that “[n]either Plaintiffs nor Defendants distinguished between the Texas Live! entities at trial.” 3 punitive damages. And as for the trial court’s post-judgment sanctions order, it too was erroneous, as it was not authorized under Rule of Civil Procedure 215.3 or as an exercise of inherent authority. Thus, all told, we will reverse the judgment, render a take-nothing judgment as to the Entities and Perryman, remand the Rodriguezes’ negligence claim against Inner- Parish for a new trial, and vacate the post-judgment sanctions order. I. Background One evening in September 2018, the Rodriguezes joined two friends at Texas Live!, an indoor, multi-business entertainment center. The group visited PBR bar,3 and because PBR did not allow souvenir glasses inside, there was a table of stowed souvenir glasses just outside the entrance—near where Perryman was stationed. When the Rodriguezes left PBR, Abel asked Perryman about the fate of abandoned souvenir glasses, and after an exchange of lighthearted banter, Abel took a glass from the table. The Rodriguezes then walked away to a nearby pizza counter, but Perryman followed to retrieve the souvenir glass. Perryman and Abel soon got into a tussle over the glass, and ultimately, Perryman hit Abel over the head with a glass bottle, causing a brain injury.4 Cynthia described PBR as a “nightclub” with “a mechanical bull, dancing, [and] 3 music.” The parties disputed the extent of Abel’s brain injury. 4 4 The Rodriguezes filed negligence claims against Perryman, Inner-Parish, and the Entities, characterizing the latter as “own[ing], operat[ing], manag[ing], and controll[ing]” the “establishment known as Texas Live!” According to the Rodriguezes, Inner-Parish was vicariously liable for Perryman’s violence as his employer, and both it and the Entities were liable for negligently hiring and training Perryman. A. Trial and Judgment During the week-long trial that followed, the Rodriguezes’ evidence focused on what Inner-Parish and the Entities should have done differently. 5 They presented evidence that Perryman had a relatively recent out-of-state felony conviction for assault; that Texas law generally prohibited individuals with such convictions from being licensed as security guards; that Perryman had nonetheless been able to obtain a license from the State; that Inner-Parish had relied on this license as a means of checking Perryman’s background; that Inner-Parish might have discovered Perryman’s conviction if it had conducted a more rigorous background check; and that Inner-Parish would not have hired Perryman had it known of his assault conviction.6 The Rodriguezes blamed the entertainment center for Inner-Parish’s allegedly negligent hiring of Perryman by emphasizing that Inner-Parish answered to the entertainment 5 Inner-Parish stipulated that Perryman was an employee acting within the course and scope of his employment at the time of the incident. 6 The Rodriguezes also criticized Inner-Parish’s training methods and the Entities’ failure to ensure that security guards were properly instructed on de-escalation. 5 center and that the entertainment center had failed to ensure that Inner-Parish conducted the appropriate background checks. The Rodriguezes did not offer evidence of the Entities’ individual roles in the entertainment center, though. Nor did they offer evidence that any of the Entities hired or directed Inner-Parish. On the contrary, Inner-Parish’s security contract—which was admitted into evidence—revealed that none of the Entities were signatories to it; the security contract was between Inner-Parish and a nonparty: JPG Entertainment Group, LLC. 7 JPG’s connection to the Entities was largely ignored at trial. However, the jury received—as part of the thousands of pages of exhibits—a copy of a management contract between JPG and two of the five Entities.8 In that management contract, the two signatory Entities joined several nonparties to hire JPG for “operational The security contract expressly affirmed that Inner-Parish “underst[ood] and 7 intend[ed] that [it] shall perform the Services specified . . . as an independent contractor” and that “[n]othing in th[e security contract would] create[] any actual or apparent agency . . . between the Parties.” The two signatory Entities were Arlington Pavilion, LLC and TXL Western 8 Saloon, LLC. Arlington Live, LLC; Arlington Ballpark District Entertainment Block, Inc.; and Arlington Ballpark District Entertainment Block, LLC were not signatories. And although the management contract identified JPG’s managing member as “Arlington Ballpark Entertainment Block, LLC” or “Arlington District Entertainment Block Investors, LLC,” there was no evidence that this was the same legal entity as Arlington Ballpark District Entertainment Block, LLC. 6 management” of certain portions of the entertainment center. 9 What JPG’s “operational management” entailed was not explored during the witness testimony, though. Rather, the Rodriguezes simply equated JPG with the Entities by prompting witnesses to confirm that “the company that is Texas Live! . . . [wa]s called ‘JPG’ in th[e security] contract” with Inner-Parish. The Rodriguezes took this tack as to other entertainment-center affiliates as well. In fact, everyone involved—the Rodriguezes, the witnesses, and even the Entities themselves—referred to the Entities and their nonparty entertainment-center affiliates collectively as “Texas Live!”10 For example, the Rodriguezes called Jim Watry to testify as the “corporate representative for Texas Live!” 11 But Watry’s job title was that of Vice President of Operations for a nonparty: Live! Hospitality. Watry explained that Live! Hospitality 9 The management contract stated the signatories’ intention that JPG be considered “an independent contractor” for tax purposes. 10 After trial, the Rodriguezes argued that the parties had “stipulated at the outset of the trial that ‘Texas Live!’ would be submitted in the jury charge collectively and in substitution of the various related corporations . . . that were named in Plaintiff’s petition.” But the Entities denied that any such stipulation occurred. And on appeal, although the Rodriguezes continue to insist that “all parties, by agreement, treated [the Entities] collectively as a single party,” they have not cited, nor has this court found, any stipulation or agreement in the record. Watry confirmed that Texas Live! was “an entertainment district” that was 11 “managed by [his] company” and encompassed “many entities that operate under Texas Live!” 7 was “part of the umbrella of Texas Live!,” that there were many entities “that operate[d] under Texas Live!,” and that he understood the Rodriguezes to be “lumping them together” for purposes of the trial. Thus, Watry did not distinguish between the Entities. Similarly, Inner-Parish’s director of security, Maurice Bullock, testified that Inner-Parish had contracted with Texas Live! to provide security at the entertainment center—even though the documentary evidence reflected that Inner-Parish’s security contract was with JPG. Bullock stated that, both contractually and practically, Texas Live! had given him the responsibility to screen, hire, and train security guards. But the Rodriguezes emphasized, and Bullock confirmed, that “Jim Watry and others at Texas Live!” remained the “bosses of the whole operation,” that Texas Live! “could tell [Bullock] what to do,” and that Bullock would have conducted additional background checks and trainings if Texas Live! had asked him to.12 The Rodriguezes thus condemned Texas Live!’s inaction. They pointed to Watry’s testimony that Texas Live! held a license to sell alcohol, and they argued to the jury that the Texas Alcoholic Beverage Code imposed nondelegable “responsibilities [on] . . . a business that sells alcohol through a permit” such that Texas Live! was “not [statutorily] allowed to surrender control of any portion of [its] operations”—if it Watry testified that he had hired Inner-Parish, but he did not identify which 12 company within the Texas Live! bundle he had represented in doing so. 8 “hire[d] a third-party security company[,] . . . [the Alcoholic Beverage Code] sa[id] that [Texas Live! was] in control of [the hired company] at all times.”13 After the evidence closed, the jury was instructed that “an entity that entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm . . . caused by its failure to exercise [its] control with reasonable care.”14 The jury was then asked a single broad-form liability question: whether “the negligence, if any, of those named below proximately cause[d] the occurrence in question.” Three names were listed below: “Texas Live!,” Inner-Parish, and Abel. “Texas Live!” was not defined, nor was Perryman mentioned. The jury found both Texas Live! and Inner-Parish liable for negligence, and when asked to allocate responsibility, it allocated 70% to Texas Live!, 30% to Inner-Parish, and 0% to Abel. As for damages, the jury found that the Rodriguezes had suffered more than $5 million in compensatory damages as a result of “the occurrence” caused by both Texas Live! and Inner-Parish. The jury then went on to find that Perryman had acted with malice, and it imposed punitive damages of $50 million against Texas Live!, $5 million against Inner-Parish, and $500,000 against Perryman. 13 Later, the Rodriguezes presented testimony from a security expert that, “Under the Texas Alcoholic Beverage Code, the permittee is responsible for what happens on [its] site.” The jury did not receive any instructions clarifying the legal legitimacy of the 14 Rodriguezes’ statutory-control theory. 9 When the trial court entered judgment, it interpreted the “Texas Live!” term used in the jury charge as referencing the Entities collectively, and it entered judgment in accordance with the verdict.15 B. Post-Judgment Sanctions After the trial court entered judgment, Inner-Parish disclosed that it had a $5 million excess insurance policy—a policy it had not produced during discovery. The Rodriguezes moved for post-judgment sanctions based on Inner-Parish’s late disclosure.16 At the sanctions hearing that followed, the trial court heard testimony from one witness: the Inner-Parish employee who had handled the company’s discovery responses. She admitted that she had been aware of the excess insurance policy before trial but explained that she had not realized that the policy needed to be disclosed. She told the trial court that she did not recall discussing the policy with Sanctioned Counsel 15 The judgment held the Entities jointly and severally liable for all damages, “including compensatory damages, exemplary damages, and interest.” And despite Inner-Parish’s and the Entities’ motions to apply the statutory cap on punitive damages, the trial court declined to do so. See Tex. Civ. Prac. & Rem. Code § 41.008. 16 In their motion, the Rodriguezes argued that they had “focused the liability arguments on Texas Live! based solely on their belief that Inner-Parish had insufficient liability coverage.” They did not cite a specific statute or rule authorizing the sanctions they requested. 10 and did not know if he had been aware of it. 17 However, when asked about Texas Live!’s awareness of the policy, she stated that she believed Inner-Parish had “provided [the excess insurance policy] to Texas Live[!]” around the time of the security contract in 2018.18 The Rodriguezes argued that both Inner-Parish and Sanctioned Counsel had acted in bad faith. They balked at the idea that Sanctioned Counsel had not been aware of the excess insurance policy, noting that Inner-Parish “ha[d] a common attorney” with the Entities. 19 The trial court granted the Rodriguezes’ motion and ordered Inner-Parish and Sanctioned Counsel to pay, jointly and severally, “the amount of the [$5 million] policy that was wrongfully withheld” as sanctions. The trial court did not cite a legal basis for its sanctions order. However, in the order, the trial court found that Inner-Parish’s Inner-Parish’s employee testified that, other than herself and the company’s 17 trial witness—Bullock—she was not sure whether anyone else had spoken to Sanctioned Counsel about the litigation. Inner-Parish’s security contract with JPG required it to maintain a certain level 18 of insurance coverage. 19 On appeal, the Rodriguezes reference alleged conversations between their counsel and Sanctioned Counsel related to Inner-Parish’s insurance coverage. But there was no evidence of these conversations. Although the Rodriguezes’ trial counsel mentioned them in his argument at the sanctions hearing, “arguments of counsel are not evidence.” Allstate Prop. & Cas. Ins. Co. v. Ford, No. 05-20-00463-CV, 2021 WL 4810358, at *3 (Tex. App.—Dallas Oct. 15, 2021, pet. denied) (mem. op.) (reiterating rule in review of sanctions order). 11 failure to disclose the excess insurance policy during discovery “[wa]s unjustified and constitute[d] an abuse of the discovery process”; that such failure was “prejudicial” to the Rodriguezes’ settlement discussions and trial preparation; that “the circumstances, including the length of time the policy was withheld . . . [and] the Defendants’ relationship to one another, warrant[ed] a presumption that the nondisclosure . . . was calculated for strategic purposes”; and that lesser sanctions “would be inadequate to cure the discovery abuse, uphold the integrity of th[e trial c]ourt and the Texas Rules of Civil [P]rocedure[,] and deter future discovery abuse.” The Entities, Inner-Parish, Perryman, and Sanctioned Counsel20 all filed appeals. II. Discussion The numerous appellate issues before us fall into two buckets: (1) challenges to the judgment and (2) challenges to the post-judgment sanctions order. A. Judgment The Entities, Inner-Parish, and Perryman raise more than ten judgment-related complaints. We need only address two, plus a third regarding the others’ ramifications: (1) the Entities assert—correctly—that there was legally insufficient evidence that each distinct Entity owed the Rodriguezes a duty;21 (2) this error tainted the verdict as to 20 Sanctioned Counsel no longer represents Inner-Parish. 21 Two of the Entities’ appellate issues overlap, so we construe them together as a single dispositive complaint. See Tex. R. App. P. 38.9. 12 Inner-Parish, mooting Inner-Parish’s judgment-related complaints; and (3) Perryman, for his part, should not have had judgment rendered against him at all. 1. Entities: No Evidence of Duty In the Entities’ dispositive issue, they argue that there was legally insufficient evidence to support the duty element of the Rodriguezes’ negligence claim. “A threshold legal requirement for negligence liability is that the defendant owes the plaintiff a duty.” Massage Heights Franchising, LLC v. Hagman, 712 S.W.3d 615, 620 (Tex. 2025); see Diamond Offshore Drilling, Inc. v. Black, 652 S.W.3d 463, 472 (Tex. App.— Houston [14th Dist.] 2022, no pet.) (“Under Texas law, a plaintiff seeking to establish liability for negligence must prove the existence and violation of a duty owed to him by the defendant.”). A general contractor who hires a subcontractor “typically does not have a duty to ensure that [the] independent [sub]contractor safely performs his work.” Massage Heights Franchising, 712 S.W.3d at 620–21. But an exception applies if the general contractor controls the subcontractor’s injury-causing work. Id. (explaining further that “the control ‘must relate to the activity that actually caused the injury’”). A general contractor’s control may be shown through “an explicit contractual provision or by evidence of actual exercise of control.” Id. at 621–22; see Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex. 2001) (noting that “determining what a contract says [about retained control] is generally a question of law for the court, while determining whether someone exercised actual control is . . . generally a question of fact for the jury”). Either way, there must be legally sufficient evidence to support the duty’s 13 applicability to the defendant at issue. See Diamond Offshore Drilling, 652 S.W.3d at 473 (noting that an employer’s duty to an employee is a question of law, but even then, “to warrant the imposition of these duties, the record must contain legally sufficient evidence to support a finding of an employment relationship”). In other words, the fact that someone controlled the subcontractor’s activities is irrelevant unless that someone is the defendant being sued. In conducting a legal sufficiency review, we must determine whether the evidence of the duty element amounted to more than a scintilla when viewed in a light most favorable to the verdict. Lee Lewis Constr., 70 S.W.3d at 782–83. “Evidence is more than a scintilla if it ‘rises to a level that would enable reasonable and fair-minded people to differ in their conclusions’”; it is less than a scintilla if it “does no more than create a mere surmise or suspicion.” Diamond Offshore Drilling, 652 S.W.3d at 474; see Lee Lewis Constr., 70 S.W.3d at 782–83. Here, the Rodriguezes defend the jury’s implied finding of duty by advancing three theories of control: statutory, contractual, and actual.22 But for any of these theories to support the verdict, the Rodriguezes must have presented more than a The Entities assert that the jury charge did not encompass the Rodriguezes’ 22 theories of statutory or actual control. We need not address this argument, though, as there was no evidence of any of the Rodriguezes’ duty theories anyway. See Tex. R. App. P. 47.1. 14 scintilla of evidence of the specific entity with the alleged statutory, contractual, or actual control. a. Statutory Control The Rodriguezes’ statutory theory of duty—their primary argument at trial and on appeal—is premised on the Entities’ holding permits to sell alcohol. The Rodriguezes claim that, under the Alcoholic Beverage Code, a permit to sell alcohol imposes a nondelegable duty on the permittee to “maintain exclusive occupancy and control of the entire licensed premises in every phase of the storage, distribution, possession, . . . transportation[,] and sale of all alcoholic beverages purchased, stored[,] or sold on the licensed premises.”23 Tex. Alco. Bev. Code § 109.53. The Rodriguezes do not cite any on-point case law recognizing the Alcoholic Beverage Code as imposing a duty on a permittee to control security-related subcontractors for purposes of a common law negligence claim.24 Regardless, their statutory-duty theory fails at a more fundamental level because there was no evidence showing which Entity or Entities held the relevant alcohol permit. See id. At trial, the Rodriguezes suggested that, if Abel was intoxicated when the 23 incident occurred, the entertainment center was responsible for overserving him. And on appeal, they repeatedly refer to Texas Live! as “a licensed dram shop.” But the Rodriguezes did not plead or seek findings on a claim under the Dram Shop Act. See Tex. Alco. Bev. Code § 2.02. Whether the Alcoholic Beverage Code can support such a duty is a question of 24 law—not a fact issue for the jury. 15 Watry testified that “Texas Live!” held an alcohol permit, but the “Texas Live!” label “lump[ed] . . . together” numerous businesses, including nonparties. Did each company under the Texas Live! umbrella have its own alcohol permit? And whose permit covered the “licensed premises” at issue here? See id. The Rodriguezes did not offer evidence to answer these questions. There was no evidence that any of the five Entities held an alcohol permit at the time of the incident, much less that one of their permits covered the relevant “licensed premises.” See id. So, even assuming that the Alcoholic Beverage Code could support the statutory duty that the Rodriguezes claim, there was no evidence showing which, if any, of the Entities owed a duty. b. Contractual Control The Rodriguezes’ second theory of duty is similarly flawed. They claim that Inner-Parish’s security contract reflected that the Entities retained contractual control over the hiring and training of security guards. But none of the Entities were signatories to the security contract; it was between Inner-Parish and JPG—a nonparty. The Rodriguezes try to avoid this contractual reality by daisy-chaining the Entities’ responsibility via JPG’s separate management contract. Much like the Rodriguezes’ statutory theory of duty, their daisy-chained-contract theory is legally questionable. Cf. Gonzalez v. VATR Constr. LLC, 418 S.W.3d 777, 781–86 (Tex. App.— Dallas 2013, no pet.) (rejecting similar daisy-chained-contract argument when deceased roofer had been hired by sub-sub-subcontractor but estate sued contractors several tiers upstream and noting that estate could not “rely on upstream contracts to establish the 16 existence of a duty”). But even putting that aside, only two of the Entities were signatories to the management contract with JPG, so the daisy-chained-contract theory could not apply to three of the five Entities. Moreover, even as to the two signatory Entities, the Rodriguezes do not identify any provision of the management contract that explicitly retains the signatory Entities’ control over JPG’s subcontractor’s hiring or training of security guards. Instead, on appeal, the Rodriguezes revert to their argument that, as “the licensed alcohol provider,” the Texas Live! bundle necessarily retained control—an argument we have already rejected. Thus, there was no evidence that any of the Entities retained contractual control over Inner-Parish’s injury-causing actions. The Rodriguezes’ contract-based theory of duty fails. c. Actual Control This brings us to the Rodriguezes’ final theory of duty: actual control. But the Entities’ collective treatment again proves problematic because, for each allegedly controlling action, there was no evidence showing which company within the Texas Live! bundle was acting. For example, the Rodriguezes claim that Watry acknowledged exercising actual control when he testified that he had “met with the different security companies and told them what [his] staffing needs were” and “what levels of security officers [he] w[as] willing to pay [for].” But Watry did not identify which company he was representing when he had these meetings and conversations; he referred to Texas Live! collectively. 17 Similarly, the Rodriguezes point to Bullock’s testimony that “Watry and others at Texas Live!” were “the bosses” and that, after the incident, “Watry . . . came to [Bullock] and said ‘[Perryman] c[ould] no longer work [at the entertainment center].’” But again, Bullock did not identify which company Watry or the “others at Texas Live!” were representing when they acted as “the bosses” or told him not to assign Perryman to the entertainment center. The Rodriguezes further rely on their security expert’s testimony that Texas Live! demonstrated actual control over Inner-Parish by selecting the guards’ locations and requiring them to check identifications. Cf. Massage Heights Franchising, 712 S.W.3d at 620–21 (describing lower court’s control analysis as “flawed” because the court “focuse[d] on a general right of control over operations” rather than on the franchisor’s “specific control over the alleged . . . defects that led to [the plaintiff’s] injury[, i.e., the franchisee’s employee’s] hiring” (internal quotation marks omitted)). But as before, the security expert did not identify which company he was referencing with the aggregate “Texas Live!” label. Because there was no evidence that one of the five Entities was the actor engaged in the allegedly controlling actions, the Rodriguezes’ actual-control theory fails. d. No Control In sum, the Rodriguezes’ failure to distinguish between the Entities produced a record with no evidence that any of the five specific Entities sued held the relied-upon alcohol permit, retained contractual control, or exercised actual control. Accordingly, 18 we sustain the Entities’ dispositive issue, reverse the judgment as to them, and render judgment that the Rodriguezes take nothing on their negligence claims against the Entities. 2. Inner-Parish: Complaints Mooted by Need for New Trial Our reversal of the judgment against the Entities has knock-on effects for Inner- Parish. The Rodriguezes’ negligence claim against Inner-Parish was intertwined with their negligence claims against the Entities. Indeed, in the Rodriguezes’ closing argument, they told the jury that “every act of negligence that Inner[-]Parish committed belongs to Texas Live!” But because there was no evidence to support imposing liability on any of the five Entities sued, those Entities should not have been included in the jury charge—as part of the amorphous Texas Live! bundle or otherwise. Yet, not only was the Texas Live! bundle included in the charge, but the jury was also asked to decide Inner-Parish’s and Texas Live!’s negligence in broad form and to apportion responsibility between Abel, Inner-Parish, and Texas Live! Then, after the jury concluded that the Texas Live! bundle was 70% responsible for causing the occurrence, it was asked to determine the amount of damages “that [had] resulted from the occurrence in question.” Needless to say, the jury might have apportioned responsibility and assessed damages differently had Texas Live! not been included in 19 the charge. 25 See Diamond Offshore Drilling, 652 S.W.3d at 481–83 (holding that reversal of judgment as to one defendant required retrial as to other defendant because “the jury foreseeably could have apportioned liability differently between [the remaining defendant] and [the plaintiff] had [the defendant without a duty] not been erroneously included in the apportionment question”); Heritage Hous. Dev., Inc. v. Carr, 199 S.W.3d 560, 570–71 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (holding that reversal of judgment as to one defendant required retrial as to another defendant because the appellate court was “not reasonably certain that [the erroneously included defendant’s] inclusion in the jury charge did not affect the jury’s apportionment of liability or the finding of damages against [the remaining defendant]”); cf. Romero v. KPH Consol., Inc., 166 S.W.3d 212, 226 (Tex. 2005) (holding that reversal of some claims required retrial due to allocation question and noting that, “[e]ven if the jury could still have made the same apportionment of fault, the error in the question is nevertheless reversible because it effectively prevents [one of the appellants] from complaining on appeal that they would not have done so”). A new trial is thus required as to Inner-Parish. 26 See Heritage 25 The Entities objected to the “Texas Live!” line-item in the charge based on the lack of evidence showing that they owed a duty. Cf. Diamond Offshore Drilling, 652 S.W.3d at 481–83 (holding, in similar case, that defendants were not required to object to apportionment question when apportionment issue stemmed from appellate court’s holding that evidence was insufficient to support one defendant’s liability). 26 Our disposition of the judgment as to the Entities and Perryman does not impair the legal viability of the Rodriguezes’ claim against Inner-Parish. 20 Hous. Dev., 199 S.W.3d at 570–72 (“If the jury’s apportionment of liability could have been affected by an issue on which the trial court charged the jury but on which there was legally insufficient evidence, a new trial on the entire negligence claim is required.”); cf. Romero, 166 S.W.3d at 230–31 (remanding for new trial). And because Inner-Parish does not raise any rendition-seeking challenges to the jury’s liability finding against it, the need for a new trial moots all of Inner-Parish’s judgment-related complaints. 3. Perryman: No Liability Finding Perryman’s appellate issues are not moot, though. In his dispositive issue, he asserts that, because the Rodriguezes did not seek jury findings holding him liable for any cause of action, the jury’s finding of malice and award of punitive damages were “untethered to any underlying liability finding,” and the corresponding portions of the judgment must be set aside. The Rodriguezes protest, insisting that the jury’s finding of malice was equivalent to a finding that Perryman was liable for a cause of action: namely, “malicious conduct.” But “Texas does not have a specific cause of action for ‘malice’[; r]ather, it is an element when determining exemplary damages.” Arana v. Figueroa, 559 S.W.3d 623, 634 (Tex. App.—Dallas 2018, no pet.). And exemplary damages are “simply [a type] of damages recoverable under a[n independent] cause of action.” Lyden v. Aldridge, No. 02-23-00227-CV, 2023 WL 6631528, at *3 n.4 (Tex. App.—Fort Worth Oct. 12, 2023, 21 no pet.) (mem. op.) (quoting Robbins v. Payne, 55 S.W.3d 740, 747 (Tex. App.—Amarillo 2001, pet. denied)); see Tex. Civ. Prac. & Rem. Code § 41.004(a). Here, although the Rodriguezes pleaded a negligence claim against Perryman, they did not seek or obtain jury findings holding him individually liable for that claim or for any other. The Rodriguezes thus waived their negligence claim against Perryman in his individual capacity, along with any damages—or punitive damages—they might have recovered from him individually. See Tex. Civ. Prac. & Rem. Code § 41.004(a) (providing general rule that “exemplary damages may be awarded only if damages other than nominal damages are awarded”); Tex. R. Civ. P. 279 (“Upon appeal all independent grounds of recovery or of defense not conclusively established under the evidence and no element of which is submitted or requested are waived.”); United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 481 (Tex. 2017) (holding that plaintiff “waived his premises liability claim” by failing to request a premises liability question or obtain jury findings on the theory). We reverse the judgment as to Perryman and render judgment that the Rodriguezes take nothing against him. See Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 530 (Tex. 1997) (reversing and rendering when plaintiffs “did not secure proper jury findings on their only viable cause of action” and therefore “waived that claim”); W & F Transp., Inc. v. Wilhelm, 208 S.W.3d 32, 44–47 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (op. on reh’g) (reversing and rendering as to two defendants when plaintiff sought and obtained liability finding only as to third defendant). 22 B. Post-Judgment Sanctions In addition to challenging the judgment itself, Inner-Parish and Sanctioned Counsel challenge the trial court’s post-judgment sanctions order. They claim that the sanctions order was an abuse of discretion as it (1) exceeded the bounds of the rule it purported to rely upon—Rule of Civil Procedure 215.3—and (2) was not authorized as an exercise of the trial court’s inherent authority. See Brewer v. Lennox Hearth Prods., LLC, 601 S.W.3d 704, 717 (Tex. 2020) (“We review a trial court’s sanctions order for abuse of discretion . . . view[ing] conflicting evidence favorably to the court’s decision . . . [but] review[ing] the entire record independently.”); see also Johnson v. Windsong Ranch Cmty. Ass’n, No. 02-24-00483-CV, 2025 WL 2492347, at *9 (Tex. App.—Fort Worth Aug. 29, 2025, pet. denied) (mem. op.). We agree. 1. Rule 215.3 Authority The trial court did not cite a legal basis for its sanctions order, but it found that Inner-Parish had committed “an abuse of the discovery process,” tracking the language of Texas Rule of Civil Procedure 215.3.27 See Tex. R. Civ. 215.3 (providing sanctioning authority for “Abuse of Discovery Process in . . . Resisting Discovery”). Inner-Parish and Sanctioned Counsel assert that because the sanctions order 27 tracked Rule 215.3’s language, and because the conduct at issue involved alleged discovery abuse, the order could not have been an exercise of the trial court’s inherent authority. Compare In re Garcia, No. 02-20-00161-CV, 2020 WL 4907330, at *2–3 (Tex. App.—Fort Worth Aug. 20, 2020, orig. proceeding) (mem. op.) (noting that appellate review of sanctions order was not confined to specific rule even though trial court had verbally stated “the discovery process ha[d] been abused”), with Ford Motor Co. v. Tyson, 943 S.W.2d 527, 533 (Tex. App.—Dallas 1997, orig. proceeding) (noting that, because 23 Rule 215.3 authorizes a trial court to sanction a party or its counsel “[i]f the [trial] court finds [the] party is abusing the discovery process in . . . resisting discovery.” 28 Id. However, as our sister courts have recognized, the Rule contemplates certain types of sanctions in particular: those “authorized by paragraphs (1), (2), (3), (4), (5), and (8) of Rule 215.2(b).” Id.; see Frenkel v. Courtney, No. 05-21-01114-CV, 2023 WL 3914549, at *6 (Tex. App.—Dallas June 9, 2023, pet. denied) (mem. op.) (“The available sanctions for abusing the discovery process while resisting discovery are enumerated in Rule 215.2(b).”); Oscar Luis Lopez v. La Madeleine of Tex., Inc., 200 S.W.3d 854, 865 (Tex. App.—Dallas 2006, no pet.) (holding trial court did not abuse discretion by denying motions for