William M. Collins and Patricia Collins v. Dr. Oliver Williams ( 2015 )

NO. 04-14-00491-CV
TEXAS COURT OF APPEALS
FOURTH DISTRICT
SAN ANTONIO, TEXAS
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WILLIAM M. COLLINS AND PATRICIA COLLINS
Appellants
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vs.
DR. OLIVER WILLIAMS
Appellee
APPELLANTS FIRST VERIFIED MOTION FOR REHEARING AND EN
BANC RECONSIDERATION
ORAL ARGUMENT REQUESTED
James R. Chapman, Jr.
P. O. Box 841
Fredericksburg, Texas 78624
(830)997-3269
No Fax
Cell (281) 734-8181
ATTORNEY FOR APPELLANTS
WILLIAM M. COLLINS AND PATRICIA COLLINS
APPELLANTS VERIFIED MOTION FOR REHEARING
AND EN BANC RECONSIDERATION
(Oral Argument Requested)
PREAMBLE
Appellants William and Patricia Collins requests the Court to reconsider its decision in
this case before the en bane court because (1) the Court has declined to follow the precedent of
the Texas Supreme Court, or (2) has declined to even apply its own precedent in this case
regarding imposing death penalty sanctions. The Court has approved case dispositive sanctions
against a litigant for a minor administrative error by the attorney, which was substantially and
substantively remedied before the hearing on the sanctions. Such disposition is contrary to the
Texas Rules of Civil Procedure, Texas Supreme Court case law, equity, and justice, and should be
reconsidered and withdrawn, and the case remanded for further proceedings in the trial court. The
sanctions imposed against Plaintiff are excessive, do not bear a direct relationship to the error,
violate the constitutional due process litigation rights of Plaintiff, do not contain any reasonable
explanation of why death penalty sanctions are the only available remedy, and clearly reflect an
egregious abuse of discretion by the trial court. The Texas Supreme Court has consistently
held that absent flagrant bad faith or callous disregard for the rules, due process bars
merits-preclusive sanctions. This case is completely devoid of any conduct by Appellant's
attorney that even remotely rises to the level of flagrant bad faith or callous disregard for the
rules. Accordingly Appellants would show:
1. Appellants are William and Patricia Collins. Respondent is Dr. Oliver Williams.
2. The Court issued an opinion on May 6,2015. Appellants asked for and received
permission to file this motion on or before June 20,2015.
3. The Court's Opinion affirmed the decision of the trial court. Such opinion is clearly
erroneous, and should be amended, withdrawn, and an opinion remanding this case for further
proceedings in the Trial Court should be ordered.
4. The Houston 14* Court of Appeals has considered this issue in In re RH White Oak,
LLC. 442 S. W. 3d 492,501 (Tex.App.- Houston (14th Dist.) 2014). The Houston Court reflected
that 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 or if it clearly fails to analyze the
law correctly or apply the law correctly to the facts.. A trial court may not impose sanctions that
are more severe than necessary to satisfy legitimate purposes. Any sanction must be "just"; that
is: (1) a direct relationship must exist between the offensive conduct and sanction imposed; and
(2) a sanction must not be excessive. Id P. 501. Both of these standards for "justness" have been
breached in the Trial Court's decision, and in this Court's affirmation of the Trial Court's actions.
5. A direct relationship exists, for purposes of determining whether a sanction is "just", if
a trial court directs the sanction against the abuse found and it remedies the prejudice caused to
the innocent party; this means that the trial court must also at least, attempt to determine whether
the offensive conduct is attributable to counsel only, or to the party only, or to both. Id. P 501. In
this case, the Court has approved death penalty sanctions against the client for a minor
administrative error of counsel that was remedied before the hearing on the motion to strike
pleadings. No significant, relevant or material evidence of any actual material harm to
Defendant's ability to present its defenses was presented. Plaintiffs counsel made a minor error,
which was concealed through a fortuitous combination of circumstances, remedied when realized,
and the Trial Court denied the constitutional due process litigation rights of Appellant, and this
Court's initial decision approved that decision.
6. Generally, before a sanction that prevents a decision on the merits is justified, lesser
sanctions must first be tested to determine their efficacy; and, in all but the most exceptional
cases, the trial court must actually test the lesser sanctions before striking pleadings. Id, P. 502.
(emphasis added). Nothing in this case places the conduct of Counsel in an "exceptional"
category. There was no repeated abuse; no ignoring Court orders, no conduct other than a failure
to achieve perfection in initial compliance. The Court's reference to the prior case is irrelevant
under the express precedent of this Court, and the attorney's fees penalties were imposed for
filing a motion which was essentially granted. Plaintiffs did not want to have to produce two
identical sets of discovery; filed a motion for protective order, it was granted, and the duplicate
discovery eliminated. Why attorney's fees sanctions are legitimate and just for relief requested
and granted is beyond the understanding of Appellant's counsel. Imposing sanctions for
zealously representing a client amounts to nothing more than punishment for representing a
client, which is neither appropriate, just, or necessary to achieve compliance with the rules of
civil procedure pertaining to discovery.
7. In all cases, the record must reflect that the trial court considered the availability of
appropriate lesser sanctions and must contain an explanation of the appropriateness of the
sanction imposed. The trial court must analyze the available sanction and offer a reasoned
explanation as to the appropriateness of the sanction imposed. Id P 502.
8. A sanction must be directed to the abuse found and it remedies the prejudice caused to
the innocent party. Id. 501. Counsel cannot remember any evidence of any real prejudice to
Defendant other than inconvenience. No relevant evidence was presented which in any way
could be interpreted as prejudicing the ability of Defendant to present its case.
9. This Court has specifically considered the issues in this case just this last year. In In
Re Estate ofPerez- Muzza, 446 S.W.3d 415 (Tex App.-San Antonio 2014), this Court
considered the issues of abuse of discretion in applying sanctions against a party, and found that a
Trial Court abused its discretion in dismissing a relative's action with prejudice as sanction for
allegedly false or misleading statements made by relative in a will contest.
10. As noted in that opinion, a trial court's inherent power to impose sanctions is limited
to the extent necessary to deter, alleviate, and counteract bad faith abuse of the judicial process,
such as any significant interference with the traditional core functions of the court, (citing cases).
Id P 424. This case is absolutely devoid of any evidence of bad faith abuse, nor is there any
allegation of interference with the traditional core functions of the Court. Yet a litigant innocent
of any mistake is penalized with the maximum sanctions available to a Trial Court. That is
clearly an abuse of discretion.
11. A sanction is not excessive when it is no more severe than necessary to satisfy its
legitimate purposes; as part of this inquiry, the trial court must consider the availability of less
stringent sanctions, and in all but the most exceptional cases, actually test the lesser sanctions
before imposing them. Id P. 424, Cire v. Cummings, 134 W.W.3d 835, 841 (Tex. 2004). The
imposition of sanctions against a party for a minor administrative error of counsel violates these
principles.
12. Perez-Muzza also specifically addressed the Constitutional issues present in this case.
Due process concerns are implicated when the trial court dismisses a party's claim based on
conduct during discovery rather than on the claim's merits. U. S. C. A. Const Amend. 14. To
comport with due process, a death-penalty sanction of dismissal may not be assessed absent the
offending party's flagrant bad faith or callous disregard for the responsibilities of discovery under
the rules. U. S. C. A. Const. Amend. 14. Further, a death-penalty sanction cannot be used to
adjudicate the merits of claims or defenses unless the offending party's conduct during discovery
justifies a presumption that its claims or defenses lack merit. Id. P. 424. No such conduct was
alleged or proved. There has been no claim that Plaintiffs claims lack merit.
13. Even when the offending party engages in intentional and blatant discovery abuse,
consideration of less stringent sanctions is still required prior to imposition of death-penalty
sanctions. The record is completely devoid of any indication that the trial court considered a less
stringent sanction. A conclusory statement that no lesser sanction would be effective is not
sufficient to constitute the required analysis of available sanctions and the reasoned explanation
of the sanction's appropriateness. Id. P. 425-426. "Death Penalty Sanctions" are intended to be a
"remedy of last resort". Id P 424, Paradigm Oil, Inc., v. Retamco Operating, Inc., 372 S.W.3d
177,179 (Tex. 2012). There is no evidence here that Plaintiff engaged in "flagrant bad faith", or
"callous disregard for the responsibilities of discovery under the rules". Id P 425.
14. The initial opinion of the Court in this case referenced the previous dismissal for want
of prosecution in approving the Trial Court's actions. In Perez-Muzza, this court specifically
addressed that exact circumstance and stated: "Although the trial court found that it had
previously dismissed the case on multiple occasion for want of prosecution, those dismissals were
not related to the offending conduct.". Same here. Making a minor administrative error in
delivery of discovery responses which was remedied prior to hearing hardly constitutes
intentional and blatant discovery abuse, and the Court's consideration of less stringent sanctions
is still required. See Perez-Muzza, Id P. 426. The Court clearly erred, and deviated from its own
precedent to even address or consider the prior dismissed case in approving the Trial Court's
sanctions in this case.
15. In reviewing the standards applicable to this case, the Supreme Court of Texas has
issued a plethora of cases for reference and enunciation of the appropriate legal standards for
considering abuse of discretion under the facts and circumstances of this case. Starting with
Transamerica Natural Gas v. Powell, 811 S.W.2d 913 (Tex. 1991), followed up by Chrysler
Corp. v. Blackmon, 841 S.W.2d 844, (Tex. 1992), and further elucidated, expanded and clarified
in Cire v. Cummings, 134, S.W.3d 385 (Tex. 2004), and Paradigm Oil v. Retamco Operating,
Inc., 372 S.W.3d 177 (Tex. 2012), the Court has clearly made its standard known for imposing
death penalty sanctions.
16. The Texas Supreme Court has consistently held that absent flagrant bad faith or callous
disregard for the rules, due process bars merits-preclusive sanctions. The Court has applied
this rule to depositions (see TransAmerican Natural Gas Corp. v. Powell, 811 S.W. 2d. 913,918-
19 (Tex. 1991)); Interrogatories, (see Chrysler Corp v. Blackmon, 841 S.W.2d 844, 846, 850
(Tex. 1992)); Requests for production, (see Id, at 849-50; GTE Communications Sys. Corp. v.
Tanner, 856 S.W. 2d. 725,729-30 (Tex 1993); and Requests for Disclosure, (see Spohn Hosp. v.
Mayer, 104 S.W. 3d. 878,883 (Tex. 2003_ (per curiam). Appellant's due process constitutional
rights have been violated, and this Court should withdraw it's prior opinion, and reverse and
remand this case for further proceedings in the Trial Court. This case revolves around requests
for production, and the case of Spohn Hosp. v. Mayer is clearly case dispositive. This Court's
prior opinion should be withdrawn, and the case reversed and remanded for further proceedings in
the Trial Court.
WHEREFORE, premises considered, Appellants respectfully requests the Court to set this
motion for oral argument before the Court en bane, and upon reconsideration, to withdraw it's
prior opinion, and reverse and remand this case to the Trial Court for further proceedings.
Appellant prays for general relief.
Respectfully submitted, ^_.
Afaies R. Chapman, Jr., 04134700
Attorney for Appellants
P.O. Box 841
Fredericksburg, Texas 78624
(830) 997-3269 No Fax
Cell (281) 734-8181
VERIFICATION
STATE OF TEXAS
COUNTY OF GILLESPIE
ON THIS DAY, personally appeared James R. Chapman, Jr., Attorney for Appellant, and
who, identified by me, the undersigned Notary Public by TDL, and personal knowledge, after
being duly sworn, deposed and said:
"My name is James R. Chapman, Jr., and I am Attorney for Appellants in this suit. I have
read the above and foregoing document, and it is true and correct".
James R. Chapman, Jr
Affiant
To certify which witness my hand and seal of office this I o day of May, 2015.
HOLUE ANN BAKER Notary Public
\ Notary Public. State of Texas
■I Mv Commission Expires
November 24, 2018
CERTIFICATE OF SERVICE
I certify a copy of this document was forwarded Certified Mail, Return Receipt Requested
on June 18,2015, to the following persons at the addresses shown, pursuant to the Texas Rules of
Appellate Procedure:
es R. Chapman, Jr.
Dr. Oliver Williams, Appellee
c/o Jeffrey D. Small
12451 Starcrest Drive, Ste 100
San Antonio, Texas 78216-2988
Tel: (210)496-0611
Fax: (210)579-1399
NO. 04-14-00491-CV
TEXAS COURT OF APPEALS
FOURTH DISTRICT
SAN ANTONIO, TEXAS
WILLIAM M. COLLINS AND PATRICIA COLLINS
Appellants
vs.
DR. OLIVER WILLIAMS
Appellee
COURT'S ORDER ON
APPELLANTS FIRST VERIFIED MOTION FOR REHEARING AND EN
BANC RECONSIDERATION
ORAL ARGUMENT REQUESTED
ON THIS DAY, the Court considered the above styled and titled motion.
After due consideration, the Motion is GRANTED, and it is so ORDERED. The Court
will consider this case with oral argument before the Court en bane. The Clerk of the Court is
ordered to issue notice of hearing pursuant to the usual procedures of the Court.
SIGNED:
FOR THE COURT