Joe Anthony Romero v. Kroger Texas L.P., Sedgwick Claims Management Services, and Phillips, Akers, Womac ( 2013 )

Opinion issued December 5, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00049-CV
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JOE ANTHONY ROMERO, Appellant
V.
KROGER TEXAS, L.P., SEDGWICK CLAIMS MANAGEMENT
SERVICES, AND PHILLIPS AKERS WOMAC, Appellees
On Appeal from the 212th District Court
Galveston County, Texas
Trial Court Case No. 10CV3689
MEMORANDUM OPINION
Appellant, Joe Anthony Romero, brought a premises-liability suit against
Kroger Texas, L.P., its third-party claims administrator (Sedgwick Claims
Management Services), and its attorneys (Phillips Akers Womac). In six issues,
Romero appeals the trial court’s (1) granting of Sedgwick’s motion for summary
judgment, (2) dismissal of Phillips Akers Womac based on failure to state a claim,
and (3) granting Kroger’s motion for sanctions that dismissed Romero’s claims
against it.
We affirm.
Background
In September 2010, Romero filed suit against Kroger and Sedgwick for
injuries allegedly sustained in May 2010 from slipping on the floor of Kroger’s
premises. A year later, Romero added Phillips Akers Womac as a party to the suit.
Romero only referred to the law firm once in its allegations: “Plaintiff now
requests that the court cite Phillips, Akers, and Womac, attorneys at law, as
defendant/s in the above cause no. for their ability to conspire and coach the parties
involved.”
Sedgwick filed a traditional and no-evidence motion for summary judgment
in September 2011. It alleged, in part, that Romero could not establish that it had
created an unreasonably dangerous situation or that it had in any way conspired
with Kroger against Romero. Romero did not file a response to the motion until
the day of the hearing. No evidence was attached to the response. The trial court
granted the motion.
Phillips Akers Womac and other defendants filed special exceptions to
Romero’s live pleading in November 2011. The law firm argued that Romero had
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failed to plead a valid cause of action against it and asked that the claim against it
be stricken. Romero did not file a response to the motion. The trial court granted
the special exceptions and dismissed Romero’s claim against the law firm.
After the trial court ruled on the special exceptions, only Kroger remained as
a defendant. Previously, in August 2011, Kroger had served interrogatories and
requests for production on Romero. He never responded to them. Kroger filed
two motions to compel in October 2011. The trial court granted the motions to
compel, requiring Romero to respond to the discovery requests within 45 days.
The orders warned Romero that failure to respond would result in his pleadings
being struck. Romero did not comply with the orders. Kroger filed a motion for
sanctions, seeking dismissal of Romero’s claims against it. On February 27,
2012—six months after Romero had been served with the discovery requests—the
trial court granted the sanctions, and struck Romero’s claims against Kroger.
Romero filed a motion for new trial, which the trial court also denied.
Motion for Summary Judgment
Romero challenges the trial court’s grant of summary judgment in favor of
Sedgwick.
A. Standard of Review
The summary-judgment movant must conclusively establish its right to
judgment as a matter of law. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986).
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Because summary judgment is a question of law, we review a trial court’s
summary judgment decision de novo. Mann Frankfort Stein & Lipp Advisors, Inc.
v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).
After an adequate time for discovery, a party may move for no-evidence
summary judgment on the ground that no evidence exists of one or more essential
elements of a claim on which the adverse party bears the burden of proof at trial.
TEX. R. CIV. P. 166a(i); Flameout Design & Fabrication, Inc. v. Pennzoil Caspian
Corp., 994 S.W.2d 830, 834 (Tex. App.—Houston [1st Dist.] 1999, no pet.). The
burden then shifts to the non-movant to produce evidence raising a genuine issue
of material fact on the elements specified in the motion. TEX. R. CIV. P. 166a(i);
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). The trial court
must grant the motion unless the non-movant presents more than a scintilla of
evidence raising a fact issue on the challenged elements. Flameout Design, 994
S.W.2d at 834; see also Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706,
711 (Tex. 1997) (holding “[m]ore than a scintilla of evidence exists when the
evidence supporting the finding, as a whole, rises to a level that would enable
reasonable and fair-minded people to differ in their conclusions”).
To determine if there is a fact issue, we review the evidence in the light most
favorable to the non-movant, crediting favorable evidence if reasonable jurors
could do so, and disregarding contrary evidence unless reasonable jurors could not.
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See Fielding, 289 S.W.3d at 848 (citing City of Keller v. Wilson, 168 S.W.3d 802
827 (Tex. 2005)). We indulge every reasonable inference and resolve any doubts
in the non-movant’s favor. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215
(Tex. 2002). When the trial court’s summary judgment order does not state the
basis for the trial court’s decision, we must uphold the order if any of the theories
advanced in the motion are meritorious. Provident Life & Accident Ins. Co. v.
Knott, 128 S.W.3d 211, 216 (Tex. 2003).
B. Analysis
Romero alleged in his live pleading that Sedgwick bore responsibility for the
injuries he sustained on Kroger’s premises. In its no-evidence motion for summary
judgment, Sedgwick argued there was no evidence that it (1) created an
unreasonably dangerous situation, (2) had actual or constructive notice of a
condition, (3) failed to reduce or eliminate the risk posed by a recently cleaned
floor, (4) deprived or deceived Romero, (5) participated in any business plan to
discriminate against Romero, and (6) conspired against Romero. The burden then
shifted to Romero to establish some evidence of these matters. See TEX. R. CIV. P.
166a(i). Romero did not file a timely response to the motion. The response he did
file did not include any evidence. We hold the trial court did not err by granting
summary judgment in favor of Sedgwick.
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Special Exceptions
Romero’s live pleading mentions Phillips Akers Womac once in its
allegations: “Plaintiff now requests that the court cite Phillips, Akers, and Womac,
attorneys at law, as defendant/s in the above cause no. for their ability to conspire
and coach the parties involved.” Phillips Akers Womac filed special exceptions,
claiming Romero had failed to state a claim against it and seeking dismissal of the
invalid claims. The trial court agreed and struck any alleged claims against it.
A. Standard of Review & Applicable Law
We review the trial court’s ruling on special exceptions for an abuse of
discretion. Wayne Duddlesten, Inc. v. Highland Ins. Co., 110 S.W.3d 85, 96 (Tex.
App.—Houston [1st Dist.] 2003, pet. denied). We limit our review to the live
pleadings; evidence is not considered. Id. If the plaintiff has failed to assert a
claim recognized in Texas, “the defendant may file special exceptions and a
motion to dismiss.” Id. at 96–97.
B. Analysis
Romero alleged that Phillips Akers Womac was a defendant in the case “for
their ability to conspire and coach the parties involved.” Romero made no
allegation that the law firm had actually “conspired” or coached the other
defendants. Romero only claimed the law firm had that ability. We agree with the
trial court that there is not a recognized cause of action in Texas against a person or
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entity for simply having the ability to conspire with or coach others. We hold the
trial court did not abuse its discretion by granting the special exceptions and
striking Romero’s alleged claims against Phillips Akers Womac.
Death Penalty Sanctions
Kroger served Romero with interrogatories and requests for production.
Romero never responded to the discovery requests. As a result, Kroger filed a
motion to compel. At the hearing, the trial court ordered Romero to respond to the
discovery requests and gave him 45 days to respond. Romero still did not respond.
Kroger filed a motion for sanctions, asking the trial court to dismiss all claims
asserted by Romero against Kroger. The trial court granted the motion for
sanctions and denied Romero’s subsequent motion for new trial.
A. Standard of Review
We review a trial court’s ruling on a motion for 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. Id. at 839. We reverse only if the trial court’s ruling it arbitrary or
unreasonable. Id.
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B. Analysis
The legitimate purposes of discovery sanctions are (1) to secure compliance
with discovery rules, (2) to deter other litigants from similar misconduct, and (3) to
punish violators. Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex. 1992);
Salomon v. Lesay, 369 S.W.3d 540, 557 (Tex. App.—Houston [1st Dist.] 2012, no
pet.). The sanction imposed by the court must be “just.” TEX. R. CIV. P. 215.2(b);
TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991).
“Two factors mark the bounds of the trial court’s discretion in order for sanctions
to be just: first, a direct relationship between the offensive conduct and the
sanction imposed must exist; and second, the sanction imposed must not be
excessive.” Chrysler, 841 S.W.2d at 849.
Rule 215.2 of the Texas Rules of Civil Procedure allows a trial court to
sanction a party for failure to comply with a discovery order or request. See TEX.
R. CIV. P. 215.2; Cire, 134 S.W.3d at 839. Among the sanctions available under
Rule 215.2 are orders “striking out pleadings or parts thereof,” “dismissing with or
without prejudice the actions or proceedings or any part thereof,” and “rendering a
judgment by default against the disobedient party.” TEX. R. CIV. P. 215.2(b)(5).
These sanctions are often referred to as “death penalty” sanctions. See generally
Cire, 134 S.W.3d at 840–41. “When a trial court strikes a party’s pleadings and
dismisses its action or renders a default judgment against it for abuse of the
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discovery process, the court adjudicates the party’s claims without regard to their
merits but based instead upon the parties’ conduct of discovery.” TransAmerican,
811 S.W.2d at 918.
Before imposing death penalty sanctions, the trial court ordinarily must
consider and test lesser sanctions that would promote compliance with the rules.
Cire, 134 S.W.3d at 842. The trial court may impose death penalty sanctions as a
first resort, however, when the offending party demonstrates “egregious conduct
and blatant disregard for the discovery process.” Id. Moreover, for death penalty
sanctions to be just, the trial court “must determine that ‘a party’s hindrance of the
discovery process justifies a presumption that its claims or defenses lack merit.’”
GTE Commc’ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 730 (Tex. 1993) (quoting
TransAmerican, 811 S.W.2d at 918).
In all, Romero had six months from the time the discovery requests were
first served on him to the time his pleadings against Kroger were struck. In that
time, there is no evidence at all that Romero responded to any of the interrogatories
or discovery requests. Despite the trial court’s order to respond to Kroger’s
discovery requests, Romero refused to comply.
Typically, an order to compel responses to discovery is not, in itself, a lesser
sanction, which must be imposed before death penalty sanctions are assessed.
Andras v. Mem’l Hosp. Sys., 888 S.W.2d 567, 572 (Tex. App.—Houston [1st Dist.]
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1994, writ denied). “However, an order to compel joined with a statement that
noncompliance would result in dismissal does constitute a lesser sanction.” Id.;
see also Paradigm Oil, Inc. v. Retamco Operating, Inc., 161 S.W.3d 531, 539
(Tex. App.—San Antonio 2004, pet. denied) (same).
The trial court’s orders requiring Romero to respond to the discovery
requests warned Romero that, if he failed to respond, “Plaintiffs’ pleadings will be
stricken.” Accordingly, the trial court’s order granting the motions to compel
served as lesser sanctions. See Andras, 888 S.W.2d at 572. We hold the trial court
did not abuse its discretion by dismissing Romero’s claims against Kroger.
Remaining Issues
Romero’s brief and supplemental brief contain a number of other complaints
against the defendants and the trial court. An appellate court’s opinion must be “as
brief as practicable but that addresses every issue raised and necessary to final
disposition.” TEX. R. APP. P. 47.1 (emphasis added). Our review of the issues
raised above fully supports the trial court’s final judgment as it relates to Romero’s
claims against the identified defendants. There is not any matter remaining in
appellant’s brief that has been properly preserved and briefed that would affect our
disposition of the above issues. Accordingly, we do not need to address the
remainder of Romero’s issues.
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Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Keyes, Higley, and Massengale.
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