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


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  •                               Fourth Court of Appeals
    San Antonio, Texas
    MEMORANDUM OPINION
    No. 04-14-00491-CV
    William M. COLLINS and Patricia Collins,
    Appellants
    v.
    Dr. Oliver WILLIAMS Appellee
    Dr. Oliver WILLIAMS,
    Appellee
    From the 216th Judicial District Court, Gillespie County, Texas
    Trial Court No. 13648
    Honorable N. Keith Williams, Judge Presiding
    Opinion by:       Marialyn Barnard, Justice
    Sitting:          Karen Angelini, Justice
    Marialyn Barnard, Justice
    Rebeca C. Martinez, Justice
    Delivered and Filed: May 6, 2015
    AFFIRMED
    William and Patricia Collins appeal the trial court’s order striking their pleadings and
    entering a take nothing judgment. The pleadings were stricken as a sanction for appellants’ failure
    to timely respond to discovery after the trial court entered a prior order granting a motion to
    compel. On appeal, the appellants contend the trial court abused its discretion by: (1) granting
    “death penalty’ sanctions; and (2) previously ordering the appellants to pay a $300.00 sanction.
    We affirm the trial court’s order.
    04-14-00491-CV
    BACKGROUND
    The appellants initially filed a lawsuit against the appellee, Dr. Oliver Williams, in
    September of 2011, asserting claims relating to a joint venture formed to improve real property.
    On October 30, 2013, the trial court dismissed that lawsuit for want of prosecution. Five days
    later, the appellants refiled the lawsuit on November 4, 2013.
    On November 27, 2013, Williams served discovery on the appellants. The discovery
    included a request for production. Although the appellants filed a motion for protective order
    regarding the discovery, the appellants never set their motion for a hearing.
    On January 17, 2014, Williams filed a motion to compel answers to discovery and a motion
    for a protective order against discovery propounded by the appellants. The trial court signed an
    order on February 19, 2014, setting the motions filed by Williams for a hearing to be held on
    March 10, 2014. At the hearing, the trial court also considered the motion for protective order
    filed by the appellants. After the hearing, the trial court signed an order denying the appellants’
    motion for protective order but granting Williams’s motion to compel. The order required the
    appellants to serve their responses to Williams’s request for production by April 1, 2014. The
    order also required appellants and their attorney to pay Williams’s “reasonable attorney’s fees in
    the amount of $300.00 incurred in the preparation of and hearing of [Williams’s] Motion to
    Compel Answers to Discovery.” The order required the $300.00 to be paid by May 10, 2014.
    On April 1, 2014, the parties entered into a Rule 11 agreement, extending the deadline for
    the discovery responses to April 4, 2014. On April 4, 2014, appellants served Williams’s attorney
    with a response to the request for production. Although the response stated the appellants were
    providing “the attached documents,” no documents were attached. Williams’s attorney asked the
    secretary who delivered the response about the absence of the documents, and the secretary stated
    she did not have any documents. Williams’s attorney wrote, signed, and dated a note at the bottom
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    04-14-00491-CV
    of the response stating that no documents were attached, and he gave a copy of the note to the
    secretary.
    On May 19, 2014, Williams filed a motion to strike the appellants’ pleadings, asserting no
    documents were attached to the discovery response served on April 4, 2014, and appellants’ and
    their attorney also failed to pay the $300.00 sanction. The motion contained a certificate of service
    stating the motion was mailed to appellants’ attorney on May 19, 2014. On May 28, 2014, the
    trial court signed an order setting the motion to strike for a hearing to be held on June 9, 2014.
    On June 4, 2014, appellants served Williams’s attorney with another response to the request
    for production which contained twenty-eight requests. The response stated, “Plaintiff, Bill Collins,
    provides the attached documents to the Request for Production and Inspection of Documents” and
    handwritten at the bottom of the page was “Document Sections: #1, #2, #3, #5, #6, #9, #11, #12,
    #16 and #28.” This handwritten note did not appear on the first response served on April 4, 2014.
    On June 5, 2014, the appellants filed an objection to Williams’s motion to strike, asserting
    appellants’ attorney “was unaware until advised of a court setting that the documents were not
    delivered to Defendant.” The objection further stated, “The attorney’s fees have not been paid by
    Plaintiffs because of the health problems of Plaintiff Bill Collins, and the personal situation of
    Plaintiff’s counsel.”
    At the hearing on Williams’s motion to strike, Williams’s attorney noted the prior lawsuit
    was dismissed for want of prosecution. Williams’s attorney also noted that the response to the
    request for production served on June 4, 2014, still failed to comply with the discovery rules.
    Williams’s attorney further noted that the $300.00 sanction had not been paid.
    The appellants’ attorney responded the $300.00 sanction had not been paid because he
    believed the appellants were sanctioned for requesting a protective order, and he intended to appeal
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    04-14-00491-CV
    the sanction. 1 The appellants’ attorney also stated that his secretary did not show him the note
    William’s attorney had written on the first response, and he only discovered the documents were
    not delivered upon his receipt of the trial court’s order setting the motion to strike for a hearing.
    The appellants’ attorney stated the secretary was given “an entire stack of documents to hand-
    deliver,” and he believed she had delivered the documents.
    At the conclusion of hearing the trial court granted the motion to strike. The trial court’s
    order contained findings of fact and conclusions of law, and the appellants timely appealed the
    order.
    STANDARD OF REVIEW AND APPLICABLE LAW
    We review a trial court’s ruling on a motion for discovery sanctions under an abuse of
    discretion standard. Cire v. Cummings, 
    134 S.W.3d 835
    , 838 (Tex. 2004). A trial court abuses its
    discretion if it acts without reference to any guiding rules and principles, and a trial court’s ruling
    should only be reversed if it was arbitrary or unreasonable. 
    Id. at 838-39.
    “Our discovery rules provide a variety of sanctions for discovery abuse.” Paradigm Oil,
    Inc. v. Retamco Operating, Inc., 
    372 S.W.3d 177
    , 184 (Tex. 2012); see generally TEX. R. CIV. P.
    215. “Sanctions are used to assure compliance with discovery and deter those who might be
    tempted to abuse discovery in the absence of a deterrent.” 
    Cire, 134 S.W.3d at 839
    .
    Any sanction imposed by a trial court must be “just,” and the Texas Supreme Court has
    identified two factors that “mark the bounds of a ‘just’ sanction.” Paradigm Oil, 
    Inc., 372 S.W.3d at 184
    . “First, a direct relationship between the offensive conduct and the sanction imposed must
    exist.” 
    Id. “Second, the
    sanction imposed must not be excessive.” 
    Id. “The most
    extreme
    sanctions are also limited by due process considerations.” 
    Id. “Thus, a
    death-penalty sanction
    1
    We note this statement is inconsistent with the reason given in the objection appellants filed in response to the motion
    to strike.
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    04-14-00491-CV
    cannot be used to adjudicate the merits of claims or defenses unless the offending party’s conduct
    during discovery justified the presumption that its claims or defenses lack merit.” 
    Id. “[I]f a
    party
    refuses to produce material evidence, despite the imposition of lesser sanctions, the court may
    presume that an asserted claim or defense lacks merit and dispose of it.” TransAmerican Natural
    Gas Corp. v. Powell, 
    811 S.W.2d 913
    , 918 (Tex. 1991).
    $300.00 SANCTION
    In their second issue, appellants contend the trial court abused its discretion in ordering
    them and their attorney to pay $300.00 as a sanction in the initial order granting Williams’s motion
    to compel. Appellants mistakenly believe they were sanctioned for seeking a protective order.
    The trial court’s order, however, clearly states that the $300.00 sanction represented the reasonable
    attorney’s fees Williams incurred in the preparation of and hearing of his motion to compel. Rule
    215.2(b)(8) permits a trial court to sanction a party who fails to comply with proper discovery
    requests by requiring the disobedient party and the attorney advising him to pay reasonable
    expenses, including attorney’s fees. TEX. R. CIV. P. 215.2(b)(8); see also 
    Cire, 134 S.W.3d at 839
    (listing available sanctions for failure to comply with a discovery request); Khan v. Valliani, 
    439 S.W.3d 528
    , 533 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (stating trial court may order
    attorney’s fees as a sanction for failing to comply with proper discovery request). Accordingly,
    the trial court acted in accordance with the guiding rules and principles in imposing the $300.00
    sanction. 2
    2
    Appellants’ brief states the $300.00 sanction “was withdrawn, and the death penalty sanctions the subject of this
    appeal were substituted in its place.” The trial court’s final order, however, grants Williams a judgment against the
    appellants “in the amount of $300.00 representing the attorney’s fees the [appellants] were ordered to pay to
    Defendant’s attorney on or before May 10, 2014.”
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    04-14-00491-CV
    “DEATH PENALTY” SANCTIONS
    In their first issue, appellants contend that trial court abused its discretion in imposing
    “death penalty” sanctions because their only violation of the discovery rules was the result of an
    “administrative error.” In their brief, appellants assert the error was not discovered until their
    attorney received the motion to strike on May 23, 2014. 3                     Appellants further assert, “The
    administrative error on the response to the request for production was essentially concealed from
    [appellants’] counsel, by actions of the temporary help in quitting without notice, and without
    advising counsel of the problem, and the actions of Defendant’s counsel in keeping quiet, and not
    even calling or writing [appellants’] counsel a letter to give him notice.” Finally, appellants assert
    the response that was ultimately served contained “no substantive error” or “substantive
    compliance issue.”
    At a sanctions hearing, the trial court is entitled to judge the credibility and weight of the
    evidence. See JNS Enter., Inc. v. Dixie Demolition, LLC, 
    430 S.W.3d 444
    , 454-55 (Tex. App.—
    Austin 2013, no pet.). In this case, the procedural history of the case could have caused the trial
    court to question whether an “administrative error” occurred. 4 Even if the trial court believed such
    an error did occur, the trial court also was required to consider whether the response filed before
    the hearing on the motion to strike complied with the discovery rules. Although appellants assert
    in their brief that the response contained “no substantive error,” Williams’s attorney noted the
    inadequacy of the response at the hearing, arguing:
    And, of course, the Court and the Plaintiffs’ attorney, who is a well-
    seasoned trial attorney, knows that under Rule 196 the response to the request for
    production either — you either state your objections, that the documents are
    complying with the request and the documents are attached, or you — as to those
    3
    We note this statement is inconsistent with the statement by appellants’ attorney at the hearing that he was unaware
    of the error until he received the trial court’s order setting the motion for a hearing.
    4
    For example, the trial court was required to weigh the handwritten note on the June 4, 2014, response, identifying
    the requests for which documents were attached, which was absent from the April 4, 2014 response.
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    04-14-00491-CV
    you’re not producing any documentation for, you’re to identify or indicate that there
    aren’t any items that have been identified after there’s been a diligent search.
    So even after all of this time, which is more than six months after the request
    for production was sent to the Plaintiffs’ attorney, we still do not have a proper
    response, and I feel that, as I mentioned before, the Court had imposed lesser
    sanctions on March the 10th and the order still has not been complied with. We
    still have not received the $300, in addition, and we feel that the sanctions are
    appropriate that the Court would strike the pleadings of the Plaintiffs.
    Judge, I also want to point out that under Rule 215, that it states that “For
    purposes of this” subsection, “an evasive or incomplete answer is to be treated as a
    failure to answer.”
    See TEX. R. CIV. P. 196.2(b)(4) (providing responding party must state, as appropriate that “no
    items have been identified — after a diligent search — that are responsive to the request”); TEX.
    R. CIV. P. 215.1(c) (providing “evasive or incomplete answer is to be treated as a failure to
    answer”).
    In deciding to grant the motion to strike, the trial court considered that a prior lawsuit filed
    by the appellants asserting the same claims was pending for two years before it was dismissed for
    want of prosecution.      After the first hearing regarding appellants’ failure to comply with
    Williams’s discovery request, the trial court imposed a lesser sanction, requiring appellants and
    their attorney to pay a $300.00 sanction. Even if the trial court believed appellants’ attorney was
    unaware that the documents were not delivered pursuant to the trial court’s order granting the
    motion to compel, appellants concede in their brief that their attorney knew on May 23, 2014, that
    the documents were not delivered. However, the documents still were not delivered until June 4,
    2014, which was twelve days after the attorney had notice, seven days after the trial court signed
    an order setting the motion to strike for a hearing, and five days before the hearing. Furthermore,
    the trial court found the response that was finally served still did not comply with the discovery
    rules. Finally, appellants and their attorney never paid the $300.00 sanction. Given the procedural
    history of the case, and the trial court’s prior imposition of lesser sanctions, we hold the trial court
    did not abuse its discretion in granting the motion to strike.
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    04-14-00491-CV
    CONCLUSION
    The trial court’s order is affirmed.
    Marialyn Barnard, Justice
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Document Info

Docket Number: 04-14-00491-CV

Filed Date: 5/6/2015

Precedential Status: Precedential

Modified Date: 10/16/2015