Crystal Bingham Hernandez v. Tiffany Polley

ACCEPTED
03-15-00384-CV
6985264
THIRD COURT OF APPEALS
AUSTIN, TEXAS
9/18/2015 9:21:42 AM
JEFFREY D. KYLE
CLERK
NO. 03-15-00384-CV
__________________________________________________________________
FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS FOR THE AUSTIN, TEXAS
THIRD JUDICIAL DISTRICT OF TEXAS
9/18/2015 9:21:42 AM
JEFFREY D. KYLE
Austin, Texas Clerk
__________________________________________________________________
CRYSTAL BINGHAM HERNANDEZ
APPELLANT
vs.
TIFFANY POLLEY
APPELLEE
_________________________________________________________________
On Appeal from the County Court at Law No. 2
Tom Green County, Texas
The Honorable Penny Roberts, Judge Presiding
_________________________________________________________________
APPELLANT’S BRIEF
_________________________________________________________________
RICK DEHOYOS
LAW OFFICE OF RICK DEHOYOS PLLC
SBN 05644085
502 SOUTH IRVING
SAN ANGELO, TEXAS 76903
Tel: 325-658-8000
Fax: 325-227-6913
Email: rick@dehoyoslawfirm.com
ATTORNEY FOR APPELLANT
APPELLANT DOES NOT REQUEST ORAL ARGUMENT
1
I.
IDENTITIES OF PARTIES AND COUNSEL
IDENTITIES OF PARTIES IDENTITIES OF COUNSEL
Crystal Bingham Hernandez, RICK DEHOYOS
Plaintiff, Appellant LAW OFFICE OF RICK
DEHOYOS, PLLC
SBN 05644085
502 SOUTH IRVING
SAN ANGELO, TEXAS 76903
Tel: 325-658-8000
Fax: 325-227-6913
Email: rick@dehoyoslawfirm.com
ATTORNEY FOR APPELLANT
Tiffany Polley KIRK D. WILLIS
Defendant, Appellee BENTON WILLIAMS
THE WILLIS LAW GROUP
SBN: 21648500
10440 NORTH CENTRAL
EXPRESSWAY STE 520
DALLAS TEXAS, 75231
Telephone: 214-736-9433
Fax: 214-736-9994
Email:
service@thewillislawgroup.com
ATTORNEY FOR APPELLEE
Judge Presiding Hon. Penny Roberts
County Court at Law No. 2
122 West Harris
San Angelo, Texas 76903
Tel: (325) 658-2495
2
II.
TABLE OF CONTENTS
DESCRIPTION PAGES
IDENTITIES OF PARTIES AND COUNSEL 2
TABLE OF CONTENTS 3
INDEX OF AUTHORITIES 4
STATEMENT OF THE CASE 7
STATEMENT OF JURISDICTION 8
ISSUES PRESENTED 8
STATEMENT OF FACTS 8
STANDARD OF REVIEW 10
SUMMARY OF THE ARGUMENT 11
ARGUMENT & AUTHORITIES 11
ISSUE NO. 1: THE TRIAL COURT ABUSED ITS DISCRETION
BY NOT FOLLOWING WELL GUIDED RULES AND
PRINCIPLES IN ISSUING A DEATH PENALTY DISCOVERY
SANCTION. 11
ISSUE NO. 2: THE TRIAL COURT ERRED OR ABUSED ITS
DISCRETION IN IMPOSING A DEATH PENALTY SANCTION
AND FAILING OR REFUSING TO SPECIFY THE DISCOVERY
THAT HAD NOT BEEN PRODUCED IN ITS FINDING OF FACTS
AND CONCLUSIONS OF LAW. 32
PRAYER 33
CERTIFICATE OF ELECTRONIC SERVICE 35
CERTIFICATE OF COMPLIANCE 35
APPENDIX 36
3
III.
INDEX OF AUTHORITIES
CASES PAGE
Andras v. Memorial Hospital System, 888 S.W.2d 567
(Tex. App.—Houston [1st Dist.] 1994, writ denied)…………………………..23,24
Boy Scouts of America v. Responsive Terminal System., Inc.
790 S.W.2d 738, 742 (Tex. App.-Dallas 1990, writ
denied)……………………………..……………………………………………...32
Chrysler Corp. v. Blackmon 841 S.W.2d 844 (Tex. 1992)………….…….16,17,18
Cire v. Cummings, 134 S.W.3d 835, (Tex. 2004)………..…...10,12,13,15,20,21,31
Cortinas v. Lopez ; (No. 13-14-00242-CV 13th Court of Appeals
Corpus Christi-Edinburg December 10, 2014 Pet. Denied)……………….14,21,22
Daniel v. Kelley Oil Corp., 981 S.W.2d 230
(Tex. App.—Houston [1st Dist.] 1998, pet. denied) (op. on reh’g)………………11
GTE Comm’s Sys. Corp. v. Tanner, 856 S.W.2d 725, (Tex. 1993)…….…13,18,30
Hamill v. Level, 917 S.W.2d 15, 16 (Tex. 1996)…………………………………12
In re Western Star Trucks US, Inc., 112 S.W.3d 756,
(Tex. App.—Eastland 2003) (orig. proceeding)..........................................15,22,23
Paradigm Oil Inc.v. Retamco Operating Inc., 161 S.W.3d at 531
(Tex. App-San Antonio 2004)………………………………………………........15
Response Time, Inc. v. Sterling Commerce (N. Am.), Inc
95 S.W.3d 656, (Tex. App.--Dallas 2002, no pet.)………………………….…....12
Sphon Hosp. v. Mayer, 104 S.W.3d 878, (Tex. 2003)……….…..12,13,16,19,20 30
Stretcher v. Greeg, 542 s.w.2d 954, 958 (Tex. Civ. App. –
Texarkana 1976 no writ);………………………………………………………....32
4
TransAmerican Natural Gas Corp. v. Powell
811 S.W.2d 913, (Tex. 1991) .....................................................12,13,16,18,30,31
Vickery v. Comm’n for Lawyer Discipline, 5 S.W.3d 241, 252
(Tex. App. – Houston 14thDist. 1999 pet. denied)………..…………….…….32,33
STATUTES AND CODES
Tex. Gov’t Code Ann. Section 22.220(a)...............................................................8
Texas Insurance Code Chapter 462.251………………………………….…..…...13
Texas Rules of Civil Procedure 194.2(j)…………………………………………28
Texas Rules of Civil Procedure 197.2………………………………………….....29
Texas Rules of Civil Procedure 215.2 (b)………………………………………..19
Texas Rules of Civil Procedure 299………………………………………………32
5
NO. 03-15-00384-CV
__________________________________________________________________
IN THE COURT OF APPEALS FOR THE
THIRD JUDICIAL DISTRICT OF TEXAS
Austin, Texas
__________________________________________________________________
CRYSTAL BINGHAM HERNANDEZ
APPELLANT
vs.
TIFFANY POLLEY
APPELLEE
__________________________________________________________________
On Appeal from the County Court at Law No. 2
Tom Green County, Texas
The Honorable Penny Roberts, Judge Presiding
__________________________________________________________________
APPELLANT’S BRIEF
__________________________________________________________________
TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:
Appellant, Crystal Bingham Hernandez, Plaintiff in the trial court, submits
this Brief of Appellant, in accordance with Rule 38 of the Texas Rules of Appellate
Procedure and all local rules of this Court. Appellant respectfully requests this
Court to reverse the take nothing-judgment following entry of dismissal against
Appellant on her causes of action and to remand this case for trial. In support
thereof, Appellant respectfully alleges as follows:
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IV.
STATEMENT OF THE CASE
Appellant Crystal Bingham Hernandez filed this lawsuit on September 17,
2012 claiming damages as a result of injuries she sustained in a motor vehicle
collision in which Patricia Michelle Rose was driving a 2005 Chevrolet Cobalt and
rear ended her vehicle at a street intersection in San Angelo, Tom Green County,
Texas. Appellant further asserted a negligent entrustment claim against Tiffany
Polley.
On January 9, 2013 Kirk Willis attorney for the Texas Guaranty Fund filed
an answer and made an appearance on behalf of Tiffany Polley. (CR 12).
On September 30, 2013, trial court signed an Agreed Order granting
Defendant Tiffany Polley’s Motion to Compel and Plea in Abatement requiring
Appellant to produce certain documents in discovery. (CR19).
On June 6, 2014 Appellee filed a Motion to Dismiss seeking Sanctions
against Appellant for failing to produce discovery. (CR 20).
On October 8, 2014 Appellant filed a response to Appellee’s Motion to
dismiss outlining all efforts to comply with the discovery order. (CR86-149).
On January 8, 2015 Appellant filed a response to Appellee’s Motion to
dismiss attaching numerous exhibits outlining its efforts in complying with
defendant’s discovery request. (CR25,26,28).
On January 8, 2015 this Court granted Appellee’s Motion to Dismiss on
7
behalf of Tiffany Polley and dismissed all of Appellant’s causes of actions against
Tiffany Polley. (CR29).
V.
STATEMENT OF JURISDICTION
This Court possesses jurisdiction over this matter, pursuant to Tex. Gov’t
Code Ann. Section 22.220(a).
VI.
ISSUES PRESENTED
ISSUE NO. 1:
The trial court abused its discretion in issuing an order imposing death
penalty sanctions for discovery abuse against Appellant, dismissing all of
Appellant’s causes of action against Appellee.
ISSUE NO. 2:
The trial court erred or abused its discretion in imposing a death penalty
sanction and failing or refusing to specify the discovery that had not been produced
in its finding of facts and conclusions of law.
VII.
STATEMENT OF FACTS
This case involves a motor vehicle collision that caused damages to
Appellant. A lawsuit was filed and during the pendency of the claim the liability
insurance company went into receivership and was represented by the Texas
Guaranty Fund. On September 30, 2013 an Agreed Order was signed by the Tom
8
Green County Court at Law requiring Appellant to respond to certain discovery
request. All other matters were abated by this Order. (CR 19). On June 6, 2014
Appellee filed a Motion to Dismiss and for Sanctions seeking Sanctions against
Appellant for failing to produce discovery. (CR 20). The trial court had two (2)
hearings on Appellee’s Motion to compel seeking sanctions.
The first hearing was on October 8, 2014 (RR2:3-11) and the second
hearing was on January 8, 2015 (RR3:1-41). Appellant sought throughout the case
to obtain clarification from the Appellee and from the trial court of the specific
discovery documents that had not been produced. On October 8, 2014 the trial
court and counsel for the Appellee confirmed on the record and to Appellant that
the only documents that had not been produced were La Esperanza medical
records, La Esperanza medical bills, and the Del Mar bills. (RR2:15-25 and 8). On
January 8, 2015 Appellee’s counsel confirms receipt of the documents that were
identified in the previous hearing and for the first time complains about a blank on
an affidavit that was not filled in by Appellant. (RR3:23-25,4-7). At Appellant’s
request the trial court filed a request for finding of facts and conclusions of law
(CR 44) but the trial court refused or failed to identify the discovery that had not
been produced. Appellant objected to the trial court’s finding of facts and
conclusions of law and sought amended finding of facts and conclusions of law in
an attempt to identify the discovery documents that were not produced. (CR46).
9
The trial court filed amended findings of facts and conclusions of law but did not
specify what discovery documents were not produced by Appellant that violated
the court’s order. (CR50). Appellant submitted proposed findings of facts and
conclusions of law that were rejected by the trial court. (CR46). The record
demonstrates that Appellant attempted to obtain clarification of what specific
documents had not been produced in discovery. A review of the entire record
demonstrates that Appellant did produce in discovery to Appellee all documents
that were identified on the record.
Specifically, the record demonstrates that Appellant produced all documents
identified at the October 8, 2014 hearing and produced all documents identified in
the September 30, 2013 Order. (RR October 8, 2014 hearing Exhibits A-M) (CR
25,26,28, 35-39). Nevertheless, the trial court refused to make specific findings of
discovery that had not been produced and instead generally found that Appellant
did not comply with the discovery orders. On January 8, 2015, the Court granted
Appellee’s motion for sanctions and dismissed Appellants claim against Appellee.
VIII.
STANDARD OF REVIEW
A trial court’s ruling on a motion for sanctions is reviewed under an abuse of
discretion standard. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004). A trial
court abuses its discretion when its ruling is arbitrary and unreasonable without
reference to any guiding rules and principles. Id. at 838–39. In conducting an
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Appellate review, the Appellate Court is not limited to a review of the
“sufficiency of the evidence” to support the trial court’s findings; rather, the
Appellate Court will make an independent inquiry of the entire record to determine
if the court abused its discretion by imposing the sanction. Daniel v. Kelley Oil
Corp., 981 S.W.2d 230, 234 (Tex. App.—Houston [1st Dist.] 1998, pet. denied)
(op. on reh’g).
IX.
SUMMARY OF ARGUMENT
The trial court abused its discretion by imposing a death penalty discovery
sanction before imposing or exploring a lesser sanction. Appellant exercised due
diligence in fully or substantially complying with Appellee’s discovery request as
demonstrated by the record. The trial court erred in not specifying in its finding of
facts what specific discovery had not been produced by Appellant. Appellant has
been denied due process of the law in not allowing Appellant to have a jury trial.
Appellants’ claims and causes of action have merit and can be proven in a trial.
X.
ARGUMENT & AUTHORITIES
ISSUE NO. 1.
THE TRIAL COURT ABUSED ITS DISCRETION BY NOT
FOLLOWING WELL GUIDED RULES AND PRINCIPLES IN ISSUING A
DEATH PENALTY DISCOVERY SANCTION.
11
A trial court may not impose a sanction that is more severe than necessary to
satisfy a legitimate purpose, such as compliance with discovery rules, deterring
other litigants from similar conduct, and punishing violators. Cire v. Cummings,
134 S.W.3d 835, 839 (Tex. 2004); Spohn Hosp. v. Mayer, 104 S.W.3d 878, 882
(Tex. 2003); TransAmerican Natural Gas Corp v. Powell, 811 S.W.2d 913, 917
(Tex. 1991). Sanctions must not be excessive. Cire, 134 S.W.3d at 839; Spohn,
104 S.W.3d at 882; TransAmerican, 811 S.W.2d at 917. That is to say, the
"punishment should fit the crime." Cire, 134 S.W.3d at 839; TransAmerican, 811
S.W.2d at 917. A death penalty sanction “is of particular concern” because the
trial court renders judgment without addressing the merits of the case. Hamill v.
Level, 917 S.W.2d 15, 16 (Tex. 1996).
It is well established that because a trial court's power to impose “death
penalty" sanctions is limited by due process concerns, the trial court must first
consider less severe sanctions before imposing "death penalty" sanctions.
Response Time, Inc. v. Sterling Commerce (N. Am.), Inc., 95 S.W.3d 656, 660
(Tex. App.--Dallas 2002, no pet.). The Texas Supreme court requires trial courts
to consider less stringent sanctions and determine their efficacy and whether such
lesser sanctions would fully promote compliance. TransAmerican Natural Gas
Corp. v. Powell, 811 S.W.2d at 917 (Tex. 1991); Cire at 840 Chrysler Corp. v.
Blackmon 841 S.W.2d 844 (Tex. 1992); Sphon Hosp. v. Mayer, 104 S.W.3d
12
878, 882 (Tex. 2003). The record must reflect the trial court considered the
availability of appropriate lesser sanctions and must contain an explanation of the
appropriateness of the sanctions imposed. Id. at 842 (also applying GTE Comm’s
Sys. Corp. v. Tanner, 856 S.W.2d 725, 729 (Tex. 1993) Id. Sphon Hosp. at 883
(Tex. 2003). Cire, 134 S.W.3d at 839; Spohn, 104 S.W.3d at 882;
TransAmerican, 811 S.W.2d at 917. In all but the most exceptional cases, the
trial court must actually test the lesser sanctions before striking a party's pleadings.
Cire, 134 S.W.3d at 842.
When a court imposes death penalty sanctions, the court effectively
adjudicates the party's claims without regard to the merits. TransAmerican,
811S.W.2d at 918. As such, death penalty sanctions are not proper sanctions
unless the discovery violation justifies a presumption that the party's claims or
defenses lack merit. TransAmerican, 811S.W.2d at 918. Appellee alleges
Appellant’s claims lack merit because Appellant failed to meet its burden that no
other insurance exists pursuant to Texas Insurance Code Chapter 462.251.
(CR1:220-226).
The record reveals that Appellant produced every item requested in
discovery and there can be no presumption that Appellant’s case for negligent
entrustment lacks merit as the accident report establishes that Patricia Rose was
driving the 1994 Jeep Wrangler while she had an expired driver’s license. The
13
owner of the vehicle, Tiffany Polley, entrusted the vehicle to a person with an
expired driver’s license. (CR 1:171-174) (CR 1:98-99: 86-152, 99-130; CR
1:86-152 RR 4,5 Exhibits A-M). These documents attached to
Appellant’s response to Appellee’s motion to dismiss and the documents
introduced at the October 2014 and January 2015 hearing and documents on file
with the court such as medical billing affidavits made part of the court record,
reveal that Appellant did not have other insurance and had exhausted all health
insurance that was identified.
This Court can only speculate that the trial court issued death penalty
discovery sanctions in this case based on an affidavit that contained a blank that
was not filled in but instead Appellant attached documents that contained the
answers of the amounts paid as requested by the affidavit. In a strikingly similar
case involving the same Appellee’s attorneys for the Texas Guaranty Fund the 13th
Court of Appeals recently stated that a “release of assignment of lien” that was
provided by plaintiff’s counsel although technically in violation of the court’s
order did not support a presumption that the plaintiff’s claims lacked merit. Maria
Cortinas v. Lopez; (No. 13-14-00242-CV 13th Court of Appeals Corpus Christi-
Edinburg December 10, 2014 Pet. Denied). The Appellate Court reversed a death
penalty discovery sanction imposed by the trial court and was not persuaded by the
Appellee’s “gotcha discovery tactics” and instead looked at the entire record in
14
concluding that the trial court acted arbitrarily and Appellate court reversed a death
penalty sanction and the Texas Supreme Court denied petition.
Severe sanctions that preclude presentation of the merits should not be
assessed absent a party's flagrant bad faith or counsel's callous disregard for the
responsibilities of discovery under the rules. Id. While a trial court is not required
under certain circumstances to actually test the effectiveness of each available
lesser sanction by actually imposing it prior to issuing death penalty sanctions, the
trial court must analyze the available sanctions and offer a reasoned explanation as
to the appropriateness of the sanction imposed. Cire, 134 S.W.3d at 840, 842. An
order compelling discovery standing alone is not considered an attempt at a lesser
sanction. Paradigm Oil Inc.v. Retamco Operating Inc., 161 S.W.3d at 531 (Tex.
App-San Antonio 2004); In re Western Star Trucks US, Inc., 112 S.W.3d 756,
766 (Tex. App.—Eastland 2003) (orig. proceeding).
In the case at bar, the record depicts during the first Sanction hearing on
October 8, 2014, Appellee’s counsel confirmed that only three (3) sets of
documents had not been produced in discovery. (RR 4:18-25;5-9). In the second
hearing on January 8, 2015, the Court record establishes that the three (3)
documents that had not been produced were medical records for La Esperanza, La
Esperanza medical bills, and the Del Mar bills, and these records and bills had now
been produced by Appellant. (RR 4,5: Exhibits A-M).
15
THE TEXAS SUPREME COURT AND COURT OF APPEALS HAVE
CREATED WELL ESTABLISHED GUIDELINES, RULES AND
PRINCIPLES TO FOLLOW IN ISSUING A DEATH PENALTY
SANCTION AND THE TRIAL COURT’S DEATH PENALTY SANCTION
IN THIS CASE WAS ARBRITRARY AND UNREASONABLE.
TEXAS SUPREME COURT CASES:
1.) TransAmerican Natural Gas Corp. v. Powell 811 S.W.2d at 917(Tex.
1991). The Texas Supreme Court established that a trial court may not
impose sanctions that are more severe than necessary to satisfy legitimate
purposes. The Supreme Court developed a two-part test for courts to apply
when determining whether a sanction is “just.” Id at 917.
First, there must be a direct nexus among the offensive conduct, the
offender, and the sanction imposed. A just sanction must be directed
against the abuse and toward remedying the prejudice caused to the
innocent party, and the sanction should be visited upon the offender.
Id at 917.
Second, just sanctions must not be excessive to punish the improper
conduct. That is, a sanction imposed for discovery abuse should be no
more severe than necessary to satisfy its legitimate purposes, which
includes securing compliance with discovery rules, deterring other
litigants from similar misconduct, and punishing violators. Id.; see
also Spohn Hosp., 104 S.W.3d at 882; Chrysler Corp. v. Blackmon,
841 S.W.2d 844, 849 (Tex. 1992).
In the case at bar, nothing in the record reveals that the trial court
engaged in the required analysis and nothing in the record reveals that the
trial court considered a lesser sanction to achieve a legitimate purpose. The
record reflects that Appellee’s counsel offered to make Appellee available
16
for a deposition so that under oath information could be obtained from
Appellee in the event the documents produced required clarification. (RR3:
7:12 – 19). The trial court after verifying that the three (3) sets of records
that were identified in the October 8, 2014 hearing had been produced
continued by focusing the trial court’s attention on an affidavit that
contained a blank that was not properly filled in. (RR 3:40). The trial court
could have required plaintiff to fill in the blank and could have made a
finding that attaching documents that contained the answers to an affidavit
was not sufficient compliance. Nothing in the record shows that the trial
court ever informed Appellee that attaching records to an affidavit was not a
sufficient response. Nothing in the record shows that the court engaged in
an analysis to determine that the death penalty sanction was just under these
circumstances.
2.) Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849-50 (Tex. 1992).
Texas Supreme Court noted that:
“….in order to support the assessment of death penalty
sanctions for discovery abuse, the movant must show that the
failure to properly respond to discovery requests prejudiced the
opposing party. That is to say, the movant must prove that it is
unable to prepare for trial without the additional information.
Id. at 849-50.
Instead of death penalty sanctions, the Court noted that:
17
“… reimbursement of expenses for pursuing motions to compel
discovery and for sanctions would appear to be better calculated
to remedy the prejudice of unnecessary fees and expenses.” Id.
at 850. Additionally, the Texas Supreme Court noted that
despite the detail that may be contained in a trial court's order
of sanctions, the findings must be pertinent to the
TransAmerican standards, and be supported by the record. Id.
at 852-53.
In the case at bar, nothing in the record shows that Appellee’s defense
would be jeopardized based on the documents that were provided by
Appellant to Appellee and that are contained in the record. The affidavit
containing a blank that was not filled in had documents attached to the
affidavit containing the answer although not in the format acceptable to the
Appellee. The record refutes a presumption that Appellant’s case lacks merit
or that Appellee’s defense has been jeopardized.
3.) GTE Communications System Corporation v. Tanner, 856 S.W.2d 725
(Tex, 1993).
The Texas Supreme Court reaffirmed the TransAmerican holding noting:
that a trial court was required to consider the availability of lesser
sanction before imposing death penalty sanctions. The trial court must
analyze the available sanctions and offer a reasoned explanation as to
the appropriateness of the sanction imposed. Id at 729. The court
reemphasized that case-determinative sanctions may only be imposed
in “exceptional cases” where they are “clearly justified” and it is
“fully apparent that no lesser sanctions would promote compliance
with the rules”. Id. At 729-730.
The trial court in the present case did not analyze the available
18
sanctions and did not impose available sanctions to determine if compliance
could be achieved. The trial court did not establish why any of the sanctions
below would not have promoted compliance. None of the available sanctions
were tried in this case. Texas Rules of Civil Procedure 215.2 (b) lists the
other sanctions that a trial court may impose:
(1) an order disallowing any further discovery of any kind;
(2) an order charging all or portion of the expenses of discovery
against the disobedient party;
(3) an order that the matters regarding which the order was made or
any other designated facts shall be taken to be established;
(4) an order refusing to allow the disobedient party to support or
oppose designated claims or defenses, or prohibiting designated
evidence from being introduced into evidence;
(5) an order striking out pleadings or parts thereof, staying the action
until the order is obeyed, dismissing the action with or without
prejudice, or rendering judgment by default;
(6) a contempt order;
(7) an order requiring the disobedient party to pay reasonable
expenses, including attorney fees, caused by the failure.
4.) Spohn Hosp. v. Mayer, 104 S.W.3d 878 (Tex. 2003), The trial court granted
death penalty sanctions against a hospital defendant who failed to produce
witness statements until thirty one days before trial and the trial court
instructed the jury that the facts contained in the written statements should
be taken as established. Id. at 881. The Texas Supreme Court concluded:
“trial court abused its discretion in assessing case- determinative,
death penalty sanctions”. The Court stated that, while the sanction was
generally directed at the alleged abuse, the record contained no
evidence that the sanctions were visited on the offender, noting that
19
neither the trial court nor the court of appeals discussed whether
counsel or their clients were responsible for the discovery abuse. Id.
at 882-83. The Court further noted that the record was silent regarding
the trial court's consideration and effectiveness of less stringent
sanctions. Id. at 883. The Court concluded that the facts were
insufficient to justify case-determinative sanctions and that the
sanctions were, therefore, excessive. Id. at 883;
In the present case, the record does not reflect any analysis by the trial
court to determine the responsible offender and to determine if a lesser
sanction would promote compliance.
5.) Cire v. Cummings, 134 S.W.3d 835, 837 (Tex. 2004).
Cire is an example of a discovery abuse that rises to the level of a
death penalty sanction and the case provides a sample of the analysis
required by a trial court before imposing a death penalty sanction.
Death penalty sanctions were found to be reasonable in this case. The
recipient of the death penalty sanctions violated two orders
compelling production of responsive audiotapes. Id. at 837. The party
also violated the trial court's order that required payment of $250 in
attorneys' fees to the opposing party and the trial court's order to
comply with discovery requests. Id. at 837. Furthermore, the party not
only possessed the audiotapes, but actually burned the tapes and found
humor in being a habitual liar. Id. at 837. The trial court determined
that the party deliberately destroyed the audiotapes to avoid
production of evidence that would have demonstrated that the
opposing party was not liable. Id. at 837-38. In light of these
circumstances, the trial court granted a motion to strike the party's
pleadings. Id. at 838. In support of the order, the trial court noted that
the party flagrantly violated four discovery orders, refused to answer
questions in deposition, used forged documents to gain an advantage
with the court, gave conflicting testimony under oath, and deliberately
destroyed and concealed material evidence that would have
demonstrated her claims lacked merit. Id. at 838. Based on these
20
facts, the trial court determined that less stringent sanctions would be
ineffective, noting that monetary sanctions would not deter the party's
actions since the party did not pay the $250 sanction levied for filing
frivolous objections to discovery requests. Id. at 838. In concluding
that monetary sanctions would not have been effective, the trial court
described testimony by the party in which she stated that she had no
money to pay monetary sanctions and that she and her counsel refused
to pay the $250 sanction for filing frivolous objections to discovery.
Id. at 841. Thus, the party's actions and statements "made it clear that
monetary sanctions are not effective to deter the party's conduct." Id.
at 841. The trial court further concluded that monetary sanctions
could not cure the party's wrongdoing which included the destruction
and concealing of material evidence.
Texas Supreme Court and Texas Court of Appeals decision establish
that except in the most “egregious of cases” death penalty sanctions will not
be upheld. (Emphasis added).
TEXAS APPELLATE COURTS FOLLOW TEXAS SUPREME COURT
MANDATES:
6.) Maria Del Rosario Cortinas v. Noe Lopez ; (No. 13-14-00242-CV 13th
Court of Appeals Corpus Christi-Edinburg December 10, 2014 Pet.
Denied).
In a case amazingly similar to the facts of the case at bar, involving
the same Appellee’s counselors as in the current case, the 13th Court of
Appeals reversed and remanded a trial court that issued a death penalty
discovery sanction and failed to consider and test less stringent sanctions.
The Court of Appeals:
rebuked the Appellee’s arguments that a “release of assignments of
21
liens” was not in a proper format and although this technically
violated the November 13, 2013 discovery order the Court of Appeals
found that an improper lien form did not support a presumption that
plaintiff’s claims lacked merit. The Appellate Court likewise
denounced Appellee’s argument that Appellant’s counsel consented to
a dismissal by acknowledging to the trial court that he understood that
the case would likely be dismissed in ninety days if the documents
were not produced. The Appellate court stated: “This remark does
not show that plaintiff consented to a dismissal or that the dismissal
was “just” and it has absolutely no bearing on the issue of whether
the trial court fulfilled its duty as required by the Texas Supreme
Court to consider and test less stringent sanctions before imposing
the “death penalty”. (emphasis added.)
In the case at bar, once again Appellee argues in his response to the
Motion for new trial (CR 1:220-227) that Appellant’s counsel consented to a
dismissal when he said “okay” after the court warned the Appellant that if the
medical records were not produced the court would likely dismiss the case.
Appellee argues that this statement is a “lesser” sanction and a binding
acceptance by Appellant of a dismissal. Appellee does not argue that another
lesser sanction was tested and tried by the trial court.
7.) In re Western Star Trucks US, Inc., 112 S.W.3d 756 (Tex. App. Eastland
2003, orig. proceeding),
the court of appeals found:
that orders to compel that precipitated the case-determinative
sanctions were not a lesser sanction as contemplated under the
TransAmerican analysis. Id. at 766. The court of appeals also noted
that the death penalty sanctions were imposed based on the
defendants' purported failure to produce relevant information. Id. at
766. However, the court of appeals also noted that after the orders
22
compelling the defendants to produce the information, they produced
3,000 pages of documents which contained relevant information. Id.
at 766. Because the relator at least partially complied with the trial
court's order compelling discovery, the court of appeals concluded
that the trial court's entry of death penalty sanctions was excessive. Id.
at 766.
In the case at bar, Appellant has presented sufficient proof that all
documents ordered to be produced were in fact produced. (RR October 8,
2014 hearing Exhibits A-M) (CR 25, 26, 28, 35-39). Thus, as in Western
Star, because Appellant made efforts to comply with court orders by
producing the discovery documents Appellant believed the trial court ordered,
death penalty sanctions were not appropriate in this case.
8.) Andras v. Memorial Hospital System, 888 S.W.2d 567 (Tex. App.—
Houston [1st Dist.] 1994, writ denied).
In Andras, the trial court properly followed Texas Supreme Court
guidelines when it:
compelled production of relevant discovery and the documents were
not produced. Id. at 570. Furthermore, the record demonstrated that a
relevant database had been destroyed while a motion to compel was
pending. Id. at 570. The trial court granted a second motion to compel
and informed the party that if it did not comply, its pleadings may be
struck. Id. at 570. The party still did not produce the documents. Id. at
570. Nevertheless, the trial court once again ordered the party to
comply with the court's previous orders within 4 days of trial and
warned that if the court's orders were again violated, the party's
pleadings would be struck. Id. at 570. Despite numerous requests for
production, orders compelling production, and a subpoena, the
relevant database was destroyed and never recreated despite the
party's representation that the database could be recreated. Id. at 570.
23
Furthermore, even though the trial court overruled the party's
objections to the production of relevant documents, instead of
producing the documents, the party simply reasserted its objections.
Id. at 571. As a result, the trial court ultimately struck the party's
pleadings. Id. at 571. Because three orders to compel were not enough
to produce the documents and the party informed the trial court that
none would be produced, there was no reason to believe that lesser
sanctions would be effective. Id. at 572. Additionally, the court of
appeals noted that the documents not produced were vital to both the
prosecution and defense of the lawsuit and, thus, the sanctions
assessed were not too severe. Id. at 572. Furthermore, because the
missing documents were vital to the sanctioned party's case and the
party's counsel admitted that they could not be produced, there was a
justified presumption that the claim was without merit. Id. at 573. As
a result, the court of appeals concluded that the sanctions were not
more severe than necessary. Id. at 573.
By contrast, there was no evidence that the Appellant in this case destroyed
responsive documents. The record reveals that all documents required to be
produced were in fact produced. Furthermore, when the trial court ordered
production of the three (3) sets of medical records, the Appellant produced them.
Additionally, the trial court never notified the Appellant that attaching documents
containing the required information was not sufficient to comply with the court’s
order.
DEATH PENALTY SANCTION NOT WARRANTED IN THIS CASE
BECAUSE APPELLANT EXCERCISED DUE DILIGENCE IN
COMPLYING WITH THE COURT’S DISCOVERY ORDER
The trial court dismissed Appellant’s case against Appellee due to not
complying with the Courts Order of September 13, 2013. The court’s order
24
enumerates the documents that Appellant was required to produce. The record in
this case contains proof that Appellant had served numerous documents in
response to discovery request and had fully complied with the Courts order of
September 13, 2013. (See generally all exhibits attached to RR October 2014
and January 2015 hearings; together with all the exhibits attached to
Appellants Motion for new trial and Response to Appellee’s Motion to dismiss
found in CR1:86-148,150-152,162-193). Specifically, this order required
Appellant to produce:
a. Satisfactory responses to Request for Production---No Objections were
filed by Appellee indicating that a specific response to a request for
production was not satisfactory. Nothing in the record would support
dismissal on this ground.
b. Satisfactory responses to Interrogatories---No Objections were filed by
Appellee indicating that a specific response to an Interrogatory was not
satisfactory. Nothing in the record would support dismissal on this ground.
c. Properly executed Affidavit regarding other insurance and
attachments---Provided as an attachment in Appellant’s Response to
Appellee’s Motion to Dismiss on October 8, 2014. (CR 1:98-99: 86-152).
d. Uninsured and/or Underinsured Motorist Rejections Signature pages---
Provided to defendant as an attachment in Appellant’s Response to
Appellee’s Motion to Dismiss on October 8, 2014. ( CR 1:99-130).
e. Personal injury protection rejection signature pages---Provided to
Appellee as an attachment in Appellant’s Response to Appellee’s Motion to
Dismiss on October 8, 2014. (CR 1:99-130).
f. All information pertaining to other applicable insurance through
Appellants employer, Appellants spouse, and any other additional
dependents or other household members---Provided to Appellee as an
25
attachment in Appellant’s Response to Appellee’s Motion to Dismiss on
October 8, 2014. . (CR1: 86-152).
g. Release of assignment documents from any healthcare providers---
Provided to Appellee as an attachment in Appellant’s Response to
Appellee’s Motion to Dismiss on October 8, 2014. (CR 1:86-152RR
January 8, 2015 Exhibits A-M).
h. All explanation of benefit documentation---Provided to Appellee as an
attachment in Appellant’s Response to Appellee’s Motion to Dismiss on
October 8, 2014. ( CR1:86-152 RR exhibits A-M).
APPELLANTS CONDUCT DOES NOT JUSTIFY A PRESUMPTION THAT
IT’S CLAIMS OR DEFENSES LACK MERIT AND THAT IT WOULD BE
UNJUST TO PERMIT APPELLANT TO PRESENT THE SUBSTANCE OF
THAT POSITION BEFORE THE COURT
Appellant’s counsel sought clarification and made numerous efforts to
clarify on the record what discovery had not been provided. Importantly,
Appellee’s counsel confirmed with the trial court on October 7, 2014 that only
three (3) sets of documents were necessary to comply with the court’s order. The
exchange was as follows (RR 4:18-25; 5-9).
Page 9------
MR. DEHOYOS: Just to make it very clear, it's three sets of
records. One is La
Esperanza medical records, one is La Esperanza medical
bills, and then the other one's
Del Mar bills.
MR. WILLIAMS: And the fourth was given to me a
moment ago.
THE COURT: And the fourth was given to you a few
moments ago, so that would meet the requirements that you're
asking for.
MR. DEHOYOS: And everything else has been complied
26
with, there's nothing else.
(EMPHASIS ADDED!)
Additionally, the Court starts the Hearing on January 8, 2015 as follows:
(RR3:23-25).
THE COURT: All right. Were you given the
three documents that were outlined and identified in the
original hearing
Appellant presented to this Court sufficient evidence on January 8, 2015
Exhibits A—M to establish that the three (3) sets of records identified in the
October 2014 hearing as the only records that were not previously produced had
now been received by Appellee’s counsel. These records were received prior to the
Order dismissing Appellant’s case. The evidence produced also included an email
stating that Appellee’s counsel confirmed receiving the documents. APPELLANT
COMPLIED WITH THE COURTS ORDER AND PRESENTED EVIDENCE
CONFIRMING COMPLIANCE!
APPELLANT ALSO MADE GOOD FAITH EFFORTS TO COMPLY WITH
DISCOVERY REQUEST
Appellee’s counsel best described Appellant’s efforts in producing
documents and complying with discovery request when he stated (RR3:25,
January 8, 2015 hearing):
MR. WILLIAMS: Your Honor, if I may?
12 Your Honor, each time we come before this
13 Court we're presented with a haystack of documents, and
14 each time we ask the same basic question. How much has
27
15 been paid in insurance? Do we have Explanation of
16 Benefits? Do we have rejection pages? Do we have an
17 Affidavit Regarding Other Insurance? Very basic
18 questions, Your Honor.
19 Notwithstanding several years, a thousand
20 pieces of paper, and a whole bunch of hearings, we're
21 still trying to ask the same question at this moment.
First, the record depicts Appellant provided and Appellee received a signed
authorization from Appellant that allowed Appellee full disclosure to her health
care claim history, liability insurance history and medical information. (RR 4:14-
18 January 8, 2015 hearing). Appellee had full access to Appellant’s information
and nothing in the record indicates Appellee ever engaged in efforts to obtain any
information that was not received. All efforts to obtain information were solely
made by the Appellant. Appellee now complains that his defense is jeopardized by
Appellants failure to provide discovery. Appellee fails to point out that in this case
if Appellee’s defense was jeopardized it was due to Appellee’s own conduct or
lack thereof. Appellant demonstrated good faith efforts in complying with
discovery request as allowed pursuant to Texas Rules of Civil Procedure
194.2(j).
Second, Appellant filed medical records and billing affidavits and provided
copies to Appellee. See receipt by the Appellee’s counsel in Appellants response to
Motion to dismiss and attachments and in Exhibits A-M filed with the Court at the
January 8, 2015 hearing. (RR 2,3: hearings and RR4,5 Exhibits A-M) (RR 4,5
28
Exhibits 300 pgs.) (CR 25,26,28, 35-39).
Third, Appellant produced a letter from the insurance companies explaining
the benefits and indicating amounts paid. (CR1:223-286)(CR1:241-250). Texas
Rules of Civil Procedure 197.2 allows a party to produce records in response to
an Interrogatory (affidavit) if the answer can be ascertained by the defendant from
the records. Defendant could obtain the answer to the information requested in the
affidavit Interrogatory from the documents attached to said
affidavit.(CR1:242)(CR1:241-250).
Fourth, Appellant’s counsel sought clarification on what discovery had not
been produced and was given direct answers as follows (RR 8-9 January 8, 2015
hearing):
MR. DEHOYOS: Just to make it very clear,
3 it's three sets of records. One is La Esperanza medical
4 records, one is La Esperanza medical bills, and then the
5 other one's Del Mar bills.
6 MR. WILLIAMS: And the fourth was given to
7 me a moment ago.
8 THE COURT: And the fourth was given to
9 you a few moments ago, so that would meet the
10 requirements that you're asking for.
11 MR. DEHOYOS: And everything else has been
12 complied with, there's nothing else.
On the January 9, 2015 hearing the Trial Court reveals her understanding of
the previous hearing that only three (3) documents had not been produced and were
required to be produced. (RR January 8, 2015 hearing 3:22-25).
29
THE COURT: Are each of you ready to proceed?
22 MR. WILLIAMS: Yes, Your Honor.
23 THE COURT: All right. Were you given the
24 three documents that were outlined and identified in the
25 original hearing?
Fifth, Appellant produced the three (3) documents outlined in the previous
hearing. (RR4, 5 January 8, 2015 hearing Exhibits A-M). In summary, the trial
court violated the longstanding procedure and required analysis before imposing
the death penalty sanction. The record does not reflect the trial court considered the
availability of appropriate lesser sanctions and does not contain an explanation of
the appropriateness of the sanctions imposed. GTE Comm’s Sys. Corp. v.
Tanner, 856 S.W.2d 725, 729 (Tex. 1993); Sphon Hosp. v. Mayer, 104 S.W.3d
878, 883 (Tex. 2003). Cire, 134 S.W.3d at 839; Spohn, 104 S.W.3d at 882;
TransAmerican, 811 S.W.2d at 917.
THE TRIAL COURT ACKNOWLEDGED LESSER SANCTIONS WERE
NOT TESTED OR IMPOSED
In dismissing Appellant’s case the trial court made statements on the record
admitting that lesser sanctions would not be considered. The trial court
demonstrates that lesser sanctions were never tried to attempt to promote
compliance and consideration of lesser sanctions was excluded because the trial
court’s dismissal was “a big enough sanction”. (RR 39-40).
THE COURT: -- I feel like there's been
30
more than enough time for you, as the defendant, to have
received the information that you asked for. This case
was filed quite sometime ago; however, I am not going to
give you sanctions against Mr. DeHoyos. Sometimes
herding a client is like herding cats. I am, however, going to grant your
motion to dismiss.
…….THE COURT: Yes. At this time I'm going
to order that all causes of action and claims by
Plaintiff Crystal Bingham Hernandez is dismissed with
prejudice to the refiling of the same. I am not going
to order that plaintiff must pay any attorney's fees and
costs for preparing litigation for this motion. I feel
like dismissing the case was a big enough sanction, and
there we go.
The trial court did not consider lesser sanctions to promote compliance. The
trial court did not engage in the mandatory analysis required under TransAmerican
to establish a direct nexus among the offensive conduct, the offender, and the
sanction imposed. The trial court did not establish on the record that the death
penalty sanction was no more severe than necessary to satisfy its legitimate
purposes. The record establishes substantial or full compliance with the court’s
order and demonstrates Appellant’s counsel exercised due diligence in providing
the requested discovery. The record does not establish an “egregious case”
involving a party's flagrant bad faith or counsel's callous disregard for the
responsibilities of discovery under the rules meriting a death penalty sanction.
Cire, 134 S.W.3d at 840, 842. The trial court’s analysis was inconsistent with
the Texas Supreme Court’s mandates and the court’s order dismissing Appellant’s
31
case should be reversed and remanded.
ISSUE NO. 2:
THE TRIAL COURT ERRED OR ABUSED ITS DISCRETION IN
IMPOSING A DEATH PENALTY SANCTION AND FAILING OR
REFUSING TO SPECIFY THE DISCOVERY THAT HAD NOT BEEN
PRODUCED IN ITS FINDING OF FACTS AND CONCLUSIONS OF LAW
As shown above, throughout this case the record reflects Appellant’s efforts
to clarify discovery that had not been produced. After the trial court dismissed
Appellant’s case, Appellant continued to request that the trial court identify the
documents that were not produced that violated the court’s order and the trial court
refused or failed to identify the documents that were not produced. (CR 31-35, 41,
44-47, 50, 52). Appellant requested finding of facts and conclusions of law and
submitted proposed findings that were overruled by the trial court. The trial court
signed a finding of facts omitted a finding that would identify the specific
discovery that was not produced that violated the court’s order. (CR 31-35, 41, 44-
47, 50, 52). The trial court cannot rely on this Appellate Court to make favorable
presumptions to support the death penalty sanction. Texas Rules of Civil
Procedure 299 does not allow a finding to be presumed when that finding was
requested by the Appellant and was refused by the trial court. Boy Scouts of
America v. Responsive Terminal System., Inc. 790 S.W.2d 738, 742 (Tex. App.-
Dallas 1990, writ denied); Stretcher v. Greg, 542 s.w.2d 954, 958 (Tex. Civ.
App. –Texarkana 1976 no writ); Vickery v. Commission for Lawyer
32
Discipline, 5 S.W.3d 241, 252 (Tex. App. – Houston 14thDist. 1999 pet. denied).
The Appellate Court found that if Appellee drafts proposed findings of facts that
set forth every element of Appellee’s ground of recovery or defense and the trial
court deletes one of the elements, the omitted element cannot later be supplied on
appeal by implication. Vickery, 5 S.W.3d at 253. In the case at bar, Appellant
drafted proposed findings of facts that specified the documents that had not been
produced pursuant to the discovery order and the trial court omitted such findings.
The trial court cannot now ask the Appellate Court to imply the discovery that was
not produced and no presumptions apply as the Appellant properly objected to the
trial courts finding of facts. The Appellate Court is now faced with “only
speculation” to justify the trial court’s death penalty sanction. (RR 1-3 January 8,
2015 hearing). The trial court erroneously imposed a death penalty sanction
without specifying the discovery that had not been produced in violation of the
court’s order and Appellant’s objection was preserved. This Appellate Court
should reverse and remand the dismissal of Appellant’s case and should order a
new trial.
XI.
PRAYER
Appellant, CRYSTAL BINGHAM HERNANDEZ respectfully prays that
the Court reverse the dismissal order of the trial court and remand this case for
trial, and that the Court grant Appellant such additional relief, legal and/or
33
equitable, to which Appellant may show just entitlement.
Respectfully submitted,
LAW OFFICES OF RICK DEHOYOS
PLLC
502 South Irving Street
San Angelo, TX 76903
rick@dehoyoslawfirm.com
Phone: 325-658-8000
Fax: 325-227-6913
BY:/s/ Rick DeHoyos _____________________
Rick DeHoyos
SNB: 05644085
Attorney for Appellant
34
XII.
CERTIFICATE OF ELECTRONIC SERVICE
I hereby certify that a true and correct copy of the foregoing Appellant’s
Brief was served on all counsel of record by electronic delivery on this 18th day of
September, 2015 as follows:
Via Fax Transmission
Kirk D. Willis
The Willis Law Group, PLLC
10440 N. Central Expy., Suite 520
Dallas, Texas 75231
Fax No.: (214) 736-9994
/s/ Rick DeHoyos _____________________
Rick DeHoyos
XIII.
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rules of Appellate Procedure 9.4(i)(3), the undersigned
certifies this brief complies with the type-volume limitation of the Texas Rules of
Appellate Procedure 9.4(i)(3). This brief contains 7,621 words, in proportionally
spaced typeface, using Microsoft Word 2010, 14 point type, Times New Roman,
14 characters per inch.
/s/ Rick DeHoyos _____________________
Rick DeHoyos
35
XIV.
APPENDIX
1. AGREED ORDER GRANTING DEFENDANT’S MOTION TO
COMPEL
2. ORDER GRANTING DEFENDANT’S MOTION TO DISMISS AND
MOTION FOR SANCTIONS
3. ORDER OF SEVERANCE AND ENTRY OF FINAL JUDGMENT
SIGNED BY JUDGE
4. PLAINTIFF’S REQUEST FOR FINDINGS OF FACTS AND
CONCLUSIONS OF LAW
5. STATEMENTS OF FACTS AND CONCLUSIONS OF LAW BY
JUDGE
6. PLAINTIFF’S REQUEST FOR ADDITIONAL OR AMENDED
FIINDINGS OF FACTS AND CONCLUSIONS OF LAW
7. AMENDED FINDINGS OF FACTS AND CONCLUSIONS OF LAW
BY JUDGE
8. PLAINTIFFS OBJECTION TO AMENDED FINDINGS OF FACTS
AND CONCLUSIONS OF LAW
9. SIGNED AUTHORIZATION ALLOWING APPELLEE ACCESS TO
APPELLANT’S MEDICAL AND INSURANCE INFORMATION
10. CORTINAS V. LOPEZ – 13TH COURT OF APPEALS -
MEMORANDUM OPINION
36
FILED FOR
CAUSE NO. 12-C482-L2
CRYSTAL BINGHAM HERNANDEZ, § IN THE COUNTY
Plaintiff, § Or"ER
§
VS. § NO.2
§
PATRICIA MICHELLE ROSE, §
AND TIFFANY POLLEY § TOM GREEN COUNTY, TEXAS
Defendants.
AGREED ORDER GRANTING DEFENDANT'S
MOTION TO COMPEL AND PLEA IN ABATEMENT
On this date, the Court considered Defendant's Motion to Compel and Plea in Abatement.
Plaintiff and Defendant appeared through their counsel. The parties agree that Defendant's Motion
to Compel and Plea in Abatement shall be GRANTED.
IT IS HEREBY ORDERED that Plaintiff shall serve satisfactory responses to Defendant's
Request for Production and First Set of Interrogatories, including the properly executed Affidavit
Regarding Other Insurance and attachments, Uninsured and/or Underinsured Motorist Rejections
Signature pages, Personal Injury Protection rejection signature pages, as well as all information
pertaining to other applicable insurance through Plaintiff's employer, Plaintiff's spouse, and any
additional dependents or other household members.
IT IS HEREBY ORDERED that Plaintiff shall produce any and all documents requested
regarding any and all Release of Assignment documents from any healthcare provider, as well as any
and all Explanation of Benefit documentation.
AGED ORDER GRANTING MOTION TO COMPEL AND PLEA IN ABATEMENT
952.0315
IT IS HEREBY ORDERED that Plaintiffs case is ABATED until such time as
Plaintiff complies with the terms of this order by serving Defendant with all responsive documents
and information contained in this order, and establishes that Plaintiff has exhausted all other
applicable forms of insurance coverage, and has fully complied with this order.
SIGNED this day of September, 2013,
SEP 27 2013
JUDGE PRES DWG
AGREED:
THE WILLIS LAW GROUP, PLLC
6j
BENTON WILLIAMS
ATTORNEY FOR DEFENDANT
AGREED:
THE LAW OFFICES OF RICK DEHOYOS
RICK DEHOYOS
ATTORNEY FOR
AGREED ORDER GRANImG MOTION TO COMPEL AND PLEA IN ABATEMENT
952.0315
FILED FOR RECORD
CAUSE NO. 12-C482-L2
Th J:H - AM 9: L.
CRYSTAL BINGHAM HERNANDEZ, § IN THE COUNTYURT 0F4
Plaintiff, § co CLERK
§ COU" I. TEXAS
VS. § NO.2
§
PATRICIA MICHELLE ROSE, §
AND TIFFANY POLLEY § TOM GREEN COUNTY, TEXAS
Defendants.
ORDER GRANTING DEFENDANT TIFFANY POLLEY'S MOTION TO DISMISS
AND MOTION FOR SANCTIONS
On this day came on to be considered the Defendant Tiffany Polley's Motion to Dismiss
with Prejudice and Motion for Sanctions. After due consideration, the Court finds that such
motion should be in all things GRANTED.
IT IS, THEREFORE, ORDERED, that all causes of action and claims by Plaintiff Crystal
Bingham Hernandez are dismissed with prejudice to the refihing of same; and
IT IS FURTHER ORDERED that Plaintiff must pay Defendant's attorney fees and costs
incurred in preparing and litigation this motion in the amount of
JAN 0 6 Z015
SIGNED this day of , 2014.
PRESID JUDGE
ORDER OF DISMISSAL WITH PREJUDICE
952.0315 Solo Page
Fltf 0 FOR RECORD
15144R27 AMIO:rj
CAUSE NO. 1.2482-L2
ELIZABETH MCGILL
CRYSTAL BINCHAM COUNTY OF CLERK.
EEL TEXAS
HERNANDEZ, § IN THE COUNTY COURT AT LAW
Plaintiff
V
.S. OF
PATRICIA MICHELLE ROSE,
TIFFANY POLLEY § TOM GREEN COUNTY, TEXAS
Defendants
ORDER OF SEVERANCE AND ENTRY OF.. FINAL JUDGMENT
On this day of SIOZ I Z UVII 2015, came on to be heard
Plaintiffs' Motion tO Sever and Motion. for Entry of Final Judgment. It ;XSI hereby ORDERD
that all causes of action asserted by Pl.aitiff against Patricia Michelle Rose shall. hereby be
severed from Cause No. 12C482 aL2. It is further, ORDERED that all claims and causes of
action asserted by Plaintiff against Patricia Michelle Rose shall be docketed as Cause No.
12482 ...L42-A. and same shall be styled "Crystal Bingham Hernandez V. Patricia
Michelle Rose."
The'instrw.ents listed on Exhibit "A4' are to be copied by the Clerk from Cause No.
12C482-L2 and shall be flied in Cause No. 12C482 -L2-. A ,styled 'CrystaI Bingham
Hernandez v. Patricia Michelle Rose."
It is further ORDERED that all costs for copying the instruments in Exhibit. "A" to be
tiled in Cause No. 12C482 -L2- A which are designated in theO.der of Severance and Entry of
Final Judgment are to be paid by Plaintiff as court cost.
All relief not expressly granted in this judgment is detiled.. The Court further adopts its
January 8, 2015 Order dismissing all of Plaintiff's claims and causes of actions against Tiffany
•PølIey and mnccwporates said Order under Cause No. I •C42—L2 herein making it a Final
Judgment from whieii appeal: can be taken.
SIGNED on this MAR 2 j 2015
PRESIDING JUDOg
Filed for Record
1/26/2015 2:52:48 PM
Elizabeth McGill, County Clerk
Tom Green County, Texas
1 2C482-L2
Reviewed by:
CAUSE NO. 12C482-L2 Jesse Hickman
Deputy
CRYSTAL BINGHAM HERNANDEZ, § IN THE COUNTY COURT AT LAW
Plaintiff, §
§
V. § OF
§
PATRICIA MICHELLE ROSE, and §
TIFFFNY POLLEY, §
Defendants. § TOM GREEN COUNTY, TEXAS
PLAINTIFF'S REQUEST FOR FINDINGS OF FACT
AND CONCLUSIONS OF LAW
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Plaintiff Crystal Bingham Hernandez, pursuant to Rule 296 of the
Texas Rules of Civil Procedure, and requests the Court to enter written Findings of Fact and
Conclusions of Law.
A. Plaintiff files this request within 20 days of the date the Court signed the Order on
January 8, 2015 Granting Defendant's Tiffany Polley's Motion to Dismiss and Motion for
Sanctions.
B. Plaintiff requests the Court to enter written Findings of Fact and Conclusions of
Law and mail copies to all parties.
Respectfully Submitted,
The Law Offices of Rick DeHoyos, PLLC
502 South Irving Street
San Angelo, Texas 76903
Telephone: (325) 658-8000
Facsimile (325) 227-6913
Rick DeHoyos
State Bar No. 056440b
rick(iidehoyoslawlirm.com
ATTORNEY FOR PLAINTIFF
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Motion was served on all
counsel of record on this day of January, 2015 as follows:
Vii Fax Transmission
Kirk D. Willis
The Willis Law Group, Pi.LC
10440 N. Central Expy., Suite 520
Dallas, TX 75231
Fax No.: (214) 736-9994
Rick DeHoyos
2
CAUSE NO. 12C4821-2
CRYSTAL BINGHAM HERNANDEZ § IN THE COUNTY COURT OF LAW
Plaintiff §
§
VS § NO.2
§
§
PATRICIA MICHELLE ROSE, § -
AND TIFFANY POLL? § TOM GREEN COUNTY, TAI 01 -
Defendants
rn CO CD
- -
r)
— o
rrnc
STATEMENT OF FACTS C)
:—
CD
>C g (J
1. Plaintiff filed lawsuit on September 17, 2012. U)
2. On January 9, 2013 Kirk Willis Attorney filed answer for Defendant Tiffany Polly.
3. Motion to Compel filed by Defendant Tiffany Polly on July 8, 2013.
4. September 30, 2013 Agreed Order granting Defendant Tiffany Polly's Motion to Compel
requiring Plaintiff to produce certain discovery documents.
5. June 6, 2014 Defendant Tiffany Polly filed Motion to Dismiss for Plaintiff's failure to produce
discovery.
6. October 7, 2014 Hearing held with Benton Williams, attorney with Kirk Willis' law firm on
Motion to Dismiss. Plaintiff given until November 10, 2014 to produce documents requested on
March 19, 2013 Discovery Motion or Court would rule on Motion to Dismiss.
7. January 8, 2015 Hearing held with Benton Williams attorney for Defendant Tiffany Polly and Rick
Dehoyos, attorney for Plaintiff Crystal Bingham Hernandez. Court found some Discovery
documents/information still not produced and granted Motion to Dismiss Plaintiffs case.
CONCLUSIONS OF LAW
Pursuant to Rule 215.2 of the TEXAS RULES OF CIVIL PROCEDURE, if a party fails to comply with
proper discovery requests or to obey an order to provide or permit discovery, the Court in which the
action is pending may, after notice and hearing, make such orders in regard to the failure as are just, and
among others the following:
1. An order disallowing any further discovery of any kind or of a particular kind by the
disobedient party;
2. An order charging all or any portion of the expenses of the discovery or taxable court costs
or both against the disobedient party or the attorney advising him;
3. An order that the matters regarding which the order was made or any other designated
facts shall be taken to be taken to be established for the purposes of the action in
accordance with the claim of the party obtaining the order;
4. An order refusing to allow the disobedient party to support or oppose designated claims or
defenses, or prohibiting him from introducing designated matters in evidence;
5. An order striking out pleadings or parts thereof, or staying further proceedings until the
order is obeyed, or dismissing with or without prejudice the action or proceedings or any
part thereof, or rendering a judgment by default against the disobedient party.
See TRCP §215.2
FEB 12 2015
SIGNED this _______ day of 1 2015
PRESIDING JUDGE
Filed for Record
2/20/2015 1:45:56 PM
Elizabeth McGill, County Clerk
Tom Green County, Texas
1 2C482-L2
Reviewed by:
CAUSE NO. 12C482-L2 Renea Kennedy
Deputy
CRYSTAL BINCIIAM HERNANDEZ, § IN THE COUNTY COURT AT LAW
Plaintiff, §
§
V. § OF
§
PATRICIA MICHELLE ROSE, and §
TIFFFNY POLLEY, §
Defendants. § TOM GREEN COUNTY, TEXAS
PLAINTIFF'S REQUEST FOR ADDITIONAL OR AMENDED
FINDINGS OF FACT AND CONCLUSIONS OF LAW
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Plaintiff, Crystal Bingham Hernandez, pursuant to Rule 298 of the
Texas Rules of Civil Procedure, and requests the Court to enter Additional or Amended written
Findings of Fact and Conclusions of Law.
I.
A. Plaintiff files this request within 10 days of the date the Court issued its original
Findings of Fact and Conclusions of Law on February 12, 2015. Accordingly, this Court's
additional or amended Findings of Fact and Conclusions of Law are due on March 2,2015.
B. Plaintiff requests the Court to specify on statement of Facts No. 7 what
documents/information Plaintiff failed to produce in discovery.
C. Plaintiff requests the Court to specify on statement of Facts No. 7 whether the
Court's order dismissing plaintiffs case applied to plaintiff's entire case or whether the dismissal
was a partial dismissal of plaintiff's claims against Tiffany Polley only.
Plaintiffs Proposed Finding of Fact No. 7.
"On January 8, 2015 Hearing held with Benton Williams attorney for Defendant
Tiffany Policy and Rick DeHoyos, attorney for Crystal Bingham Hernandez. The Court
found some discovery documents/information still not been produced and granted
Defendant's Motion to Dismiss Plaintiffs case as against Tiffany Policy only and plaintiffs
claims against Patricia Michelle Rose were not dismissed and continue in this Court's
docket. Specifically, Court found a properly executed affidavit was not produced in that
plaintiff did not 1111 in a blank indicating the amount health insurance had paid on
plaintiffs medical bills. The Court found that the plaintiff attached documents from the
health insurance company that contained an explanation of benefits and handwritten notes
and this was insufficient compliance with the Court's prior order."
Page 1 of 3
D. Plaintiff also requests the Court to specify its conclusions of law in dismissing the
case. The present Conclusions are merely a recitation of Rule 215.2 of the Texas Rules of Civil
Procedure which allows for dismissal among other available sanctions. This Court should specify
what provision it relied on to dismiss Plaintiff's case.
Plaintiff's Proposed Conclusion of Law:
This Court entered an order September 30, 2013 requiring plaintiff to produce
certain documents/information to the defendant.
On October 30, 2014 this Court verbally warned plaintiff that failure to comply with
the Court's previous Order could result in a dismissal.
Plaintiff continued to fail to produce some documents and information she was
required to produce and on January 8, 2015, this Court entered an Order dismissing
plaintiff's causes of action pursuant to Rule 215.2(5) of the Texas Rules of Civil Procedure
which states:
,if a party fails to comply with proper discovery requests or to obey an
order to provide or permit discovery, the Court in which the action is pending may,
after notice and hearing, make such orders in regard to the failure as are just, and
among others the following:
(5) An Order ............................dismissing with or without prejudice the action
or proceedings or any part thereof, or rendering a judgment by default against the
disobedient party.
Respectfully Submitted,
The Law Offices of Rick DeHoyos, PLLC
502 South Irving Street
San Angelo, Texas 76903
Telephone: (325) 658-8000
Facsimile: (325) 227-6913
1Ik DeiIoyos
State Bar No. 05644085
rickdehoyoslawfinn.coTn
ATTORNEY FOR PLAINTIFF
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Motion was served on all
counsel of record on this 20th day of February, 2015 as follows:
Page 2 of 3
Via Fax Transmission
Kirk D. Willis
Benton Williams
The Willis Law Group, PLLC
10440 N. Central Expy., Suite 520
Dallas, TX 75231
Fax No.: (214) 736-9994
ri Rick DeHoyos 11W
Page3 of3
CAUSE NO. 12C482-12
CRYSTAL BING HAM HERNANDEZ, § IN THE COUNTY COURT AT LAW 2
Plaintiff, §
§
§
V. § OF
§
PATRICIA MICHELLE ROSE, and § rr
TIFFANY P011EV §
Defendants § TOM GREEN COUNTY, TEXAS
rn
AMENDED FINDINGS OF FACTS AND CONCLUSIONS OF LAW
Amended finding of fact no. 7
On January 8, 2015 Hearing held with Benton Williams attorney for Defendant Tiffany Polley and Rick Dehoyos,
attorney for Crystal Bingham Hernandez. Tha Court found some discovery documents/information still had not been
produced and Granted DEFENDANT'S Motion to Dismiss Plaintiffs case as against Tiffany Polley only and Plaintiff's
claims against Patricia Michelle Rose were not dismissed and continue in this Court's docket.
Amended Conclusion of Law
This Court entered an order September 30, 2013 requiring Plaintiff to produce certain documents/information
to the Defendant.
On October 30, 2014 this court verbally warned Plaintiff that failure to comply with the Court's previous order
could result in a dismissal.
Plaintiff continued to produce some documents and information she was required to produce and on January 8,
2015 this Court entered an order dismissing Plaintiff's causes of action pursuant to rule 215.2(5) of the Texas Rules of
Civil Procedure which states
if a party fails to comply with proper discovery requests or to obey an order to provide or permit
...................,
discovery, the Court in which the action is pending may, after notice and hearing, make such orders in regard to the
failure as are just, and among others the following:
(5) An Order dismissing with or without prejudice the action or proceedings or any part thereof,
...........................
or rendering a judgment by default against the disobedient party.
MAR 0 92015
Date
yQ
Judge PENNY ROBERTS
Filed for Record
3/19/2015 2:25:11 PM
Elizabeth McGill, County Clerk
Tom Green County, Texas
1 2C482-L2
Reviewed by:
CAUSE NO. 12C482-1,2 Debbie Smith
Deputy
CRYSTAL BINGHAM HERNANDEZ, § IN THE COUNTY COURT AT LAW
Plaintiff, §
§
V. § OF
§
PATRICIA MICHELLE ROSE, and §
TIFFFNY POLLEY, §
Defendants. § TOM GREEN COUNTY, TEXAS
PLAINTIFF'S OBJECTION TO AMENDED
FINDINGS OF FACT AND CONCLUSIONS OF LAW
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Plaintiff, Crystal Bingharn Hernandez, pursuant to Rule 298 of the
Texas Rules of Civil Procedure, and requests the Court to enter Additional or Amended written
Findings of Fact and Conclusions of Law and further objects to the Amended Findings of Facts
and Conclusions of Law signed by this Court on March 9, 2015.
1.
A. Plaintiff files this request within 10 days of the date the Court issued its Amended
Findings of Fact and Conclusions of Law on March 9, 2015.
B. Plaintiff requests the Court to specify on statement of Facts No. 7 what
documents/information Plaintiff failed to produce in discovery. The following language should
be added:
Plaintiff's Proposed Finding of Fact No. 7. -
.............. Specifically, Court found a properly executed affidavit was not
produced in that plaintiff did not fill in a blank Indicating the amount health insurance had
paid on plaintiffs medical bills. The Court found that the plaintiff attached documents
from the health insurance company that contained an explanation of benefits and
handwritten notes and this was insufficient compliance with the Court's prior order."
Respectfully Submitted,
The Law Offices of Rick Delloyos, PLLC
502 South Irving Street
San Angelo, Texas 76903
Telephone: (325) 658-8000
Facsimile: (325) 227-6913
Page 1 of 2
- -
Rick DeHoyos
State Bar No. 05644085
ATTORNEY FOR PLAINTIFF
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Motion was served on all
counsel of record on this of March, 2015 as follows;
Via Fax Transmission
Kirk D. Willis
Benton Williams
The Willis Law Group, PLLC
10440 N. Central Expy., Suite 520
Dallas, TX 75231
Fax No.: (214) 736-9994
Rick Deiloyos
J
Page 2 of 2
16
Exhibits January 8, 2015
1 03/19''013 15:20 #851 P.008/021
Eros:
2
3
1
4
AUTHORIZATION FORM FOR RELEASE OF PROTECTED
HEALTH INFORMATION
5
6
A. I, CRYSTAL BINGILAM I-IERNANDEZ, hereby authorize THE WILLIS LAW
GROUP, PLLC. or their authorized representative, to obtain and disclosure the protected
7
health information described below for the following specific purposes;
8 I- To facilitate the investigation and evaluation of the health care claim
described in the accompanying Notice of Health Care Claim; or
2. Defense of the litigation filed under Cause No. 1 2-C482-12, styled Crystal
10 Bingham Hernandez v. Patricia Michelle Rose and Tiffany Polley, pending in the
County Court at Law No. 2 of Torn Green County, Texas.
11
B. The health information to be obtained, used or disclosed extends to and includes
12 the verbal as well as the written and is specifically described as follows:
13 I The health information in the custody of the physicians or health care
providers who have examined, evaluated or treated CRYSTAL BINGUAM
HERNANDEZ in connection with the injuries alleged to have been sustained in
14
the incident on -?—-/O . This authorization shall extend to any
additional physicians or health care providers that may in the future evaluate,
15
examine or treat CRYSTAL BINOHAM HERNANDEZ for injuries alleged in
connection with the claim.
16
17 2. The health information in the custody of the attached physicians or health
care providers who have examined, evaluated or treated CRYSTAL BJNGIIAM
HERNANDEZ during a period commencing five years prior to the incident made
18 the basis of the claim.
19 C. Excluded Health Information. The following constitutes a list of physicians or
health care providers possessing health care information concerning to which this authorization
20 does not apply because I contend that such health care information is not relevant to the damages
being claimed or to the physical, mental or emotional condition of CRYSTAL BINOHAM
21 }IERNANDEZ arising out of the claim made the basis of the claim: None.
D. The perso&is or class of persons to whom the health information of CRYSTAL
22
I3ENGHAM HERNANDEZ will be disclosed or who will make use of said information are:
23
DEFENDANTS FIRST REQUEST FOR PRODUCTION TO PLAINTIFF PACE 6
952.0313
24
25
Sharla Bredemeyer, CSR, RPR
17
Exhibits January 8, 2015
1 03/191'13 15:20
Frot: #851 P009/021
2
3
4
Any and all phyticians or health care providers providing care or
5 treatment to CRYSTAL BINCHAM HERNANDEZ;
2. Any liability insurance entity providing liability insurance coverage or
6
defense to PATRICIA MICHELLE ROSE AND TIFFANY PULLEY;
7
3. Any consulting or testifying experts employed by or on behalf of
PATRICIA MICHELLE ROSE AND TIFFANY POLLEY with regard to
8 Plaintiff's litigation;
9 4. Any attorneys (including secretarial, clerical or paralegal staff) employed
by or on behalf of PATRICIA MICHELLE ROSE AND TIFFANY POLLEY;
10 and
11 5. Any trier of the law or facts relating to any suit filed seeking damages
arising out of the medical care or treatment of CRYSTAL BINGHAM
12 HERNANDEZ.
13 E This authorization shall expire upon resolution of the claim asserted or at the
conclusion of any litigation instituted in connection with the subject matter of the claim,
14 whichever occurs sooner.
F. I understand that, without exception, I have the right to revoke this authorization
15
in writing. I further understand the consequence of any such revocation as set out in Section
74.052, CIVIL PRACTICE AND REMEDIES CODE.
16
0. 1 understand that the signing of this authorization is not a condition for continued
17 treatment, payment, enrollment or eligibility for health plan benefits.
18 H. I understand that information used or disclosed pursuant to this authorization may be
subject to re-disclosure by the recipient and may no longer be protected by federal HIPAA
19 privacy regulations.
20
21
22
23
DEFENDANT'S FIRST REQUEST FOR PRODUCTION TO PLAINTIFF FACE 7
952.1)313
24
25
Sharla Bredemeyer, CSR, RPR
18
Exhibits January 8, 2015
1
From, 03/1P013 15:20 #851 P016/021
2
3
4 Dated:
5
6 STA. INGf-IAM HER NDEZ.
SOCIAL SECURITY NO.: L[
7
8
DATE OF BIRTH: 1 '1
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
DEFENDANT'S FIRST REQUEST FOR PRODJCTION TO PLAINTIFF PACE: $
952.0311
24
25
Sharla Bredemeyer, CSR, RPR
NUMBER 13-14-00242-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MARIA DEL ROSARIO CORTINAS, Appellant,
V.
NOE LOPEZ, Appellee.
On appeal from the 24th District Court of
Goliad County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Justice Garza
In this appeal, appellant Maria Del Rosario Cortinas argues that the trial court erred
in dismissing her personal injury suit against appellee, Noe Lopez, as a "death penalty"
discovery sanction. We reverse and remand.
I. BACKGROUND
Cortinas sued Lopez for injuries she suffered as a result of a motor vehicle collision
that took place on September 28, 2008, in Brownsville, Texas. Cortinas alleged in her
original petition, dated September 23, 2010, that Lopez negligently rear-ended her
vehicle, causing her to suffer "excruciating pain" and "extensive physical and emotional
injuries," including a herniated disc in her neck, and necessitating her hospitalization at
Valley Baptist Medical Center.
Lopez was insured by Reinsurance Company of America ("RCA") at the time of
the collision and at the time the lawsuit was filed; however, RCA subsequently became
insolvent and bankruptcy proceedings were instituted. Accordingly, on June 21, 2011,
Lopez notified the trial court of RCA's bankruptcy, that RCA had been designated an
"impaired insurer" by the Texas Commissioner of Insurance, and that the Texas Property
and Casualty Insurance Guaranty Association ("TPCIGA") was therefore obligated by the
Texas Property and Casualty Insurance Guaranty Act (the "Guaranty Act") to defend
Lopez. See TEX. INS. CODE ANN. § 462.309 (West, Westlaw through 2013 3d C.S.). Lopez
further notified the trial court that the Guaranty Act mandates a six-month stay of
proceedings "[t]o permit [TPCIGA] to properly defend [the] pending cause of action . . .
Id. § 462.309 (West, Westlaw through 2013 3d C.S.). Pursuant to the statute, the trial
court proceedings were stayed from June 8, 2011 to December 8, 2011.
On April 9, 2012, Lopez served discovery requests upon Cortinas, including the
following requests for production:
20. Provide a true and correct copy of the declaration page or pages for
all policies of Insurance listed in Interrogatories to Plaintiff.[']
21. Provide a letter from your employer and/or employer of your family
member stating the insurance coverages and benefits available to
each Plaintiff through that employer, if any.
1
No interrogatory responses appear in the record.
2
22. An executed affidavit regarding other insurance in substantially the
same form as that attached hereto in Exhibit A.
In response to request number 20, Cortinas provided a copy of her Texas Auto Insurance
identification card. In response to request number 21, Cortinas provided a copy of her
Valley Baptist Health Plans health insurance identification card. In response to request
number 22, Cortinas attached an affidavit stating that she was covered by an auto
insurance policy with carrier "Insurance Corner" but that she has not received any benefits
from that policy as a result of the September 2008 collision. 2 The affidavit stated, "For all
of the policies of insurance I have listed above or in Exhibit A, I have attached a correct
copy of the declarations pages, if available"; but no declarations pages were attached.
The affidavit made no specific mention of Cortinas's health insurance policy.
Lopez then filed a motion to compel discovery in which he complained that
Cortinas's responses were incomplete because she did not produce a declarations page
"for each policy of insurance that would be applicable to her claims." Lopez argued in his
motion that this omission was "vital" because, under the Guaranty Act, a plaintiff seeking
recovery from an individual defended by TPCIGA must first exhaust her rights under any
other applicable insurance policies. See TEX. INS. CODE ANN. § 462.251 (West, Westlaw
through 2013 3d C.S.). 3 After a hearing on September 18, 2012, the trial court granted
2 It is apparent from the record that Insurance Corner is not an insurance carrier but, rather,
Cortinas's insurance agent.
Section 462.251(a) of the Guaranty Act provides:
Any person who has a claim under an insurance policy, other than an impaired insurer's
policy, and whose claim arises from the same facts, injury, or loss giving rise to a claim
against an impaired insurer or the insurer's insured, must first exhaust the person's rights
under the insurance policy, including:
(1) a claim for benefits under a workers' compensation insurance policy or a claim for
indemnity or medical benefits under a health, disability, uninsured motorist,
3
the motion to compel and ordered Cortinas to "respond completely to Defendant's
Request for Production Numbers 20 and 21 on or before October 2, 2012." Cortinas then
produced a supplemental response in which she stated that she was not in possession
of any documents responsive to the request. 4
Lopez subsequently filed a motion to dismiss as a sanction against Cortinas for
her alleged failure to comply with the trial court's discovery order. See TEX. R. Civ. P.
215.2(b)(5). At a hearing on April 30, 2013, Cortinas's counsel gave the following
explanation for why she had not produced the requested documentation:
This is the issue we're having, Your Honor, and it boils down to this. In this
accident my client had the very same insurance company that the defendant
had. In other words, she had the same company that went out of business.
She has gone to the—to Insurance Corner where she purchased her policy.
She's asked for a copy of her dec page. She's written letters to the former
company that's now out of business. They have told her that they cannot
get a dec page for her because they're out of business and they don't even
know where [their] files are.
Cortinas's counsel informed the court that he practiced due diligence in an attempt to
obtain the declarations page for Cortinas's RCA policy, but that his efforts were to no
avail.
In reply, Lopez's counsel did not argue that Cortinas should have produced the
declarations page for her RCA policy. Instead, he stated:
One of the—one of the problems in this case is that this policy with respect
to [RCA] is just one of multiple policies that's available to the plaintiff. One
personal injury protection, medical payment, liability, or other insurance policy; and
(2) the right to defense under the insurance policy.
TEX. INS. CODE ANN. § 462.251 (West, Westlaw through 2013 3d CS.). TPCIGA and the defendant it
represents are then entitled to "a full credit for the amount of the full applicable limits" of any other applicable
policy, even if the plaintiff failed to timely file a claim. See Id. §§ 462.252, 462.253 (West, Westlaw through
2013 3d C.S.).
"Neither the September 18, 2012 hearing transcript nor Cortinas's supplemental response appear
in the record.
ru
of the policies that's available is a health insurance policy. That health
insurance policy has made payments on behalf of plaintiff's treatment. In
the affidavit regarding other insurance with respect to that health insurance
policy, the amount that the plaintiff states was paid by health insurance is
zero. But, Your Honor, we've received an affidavit—a billing records
affidavit that indicates that United Health Care, the health insurer for the
plaintiff has, in fact, paid something in the amount of $893. . . . We do
understand that this—that Valley Baptist Medical Center has been paid by
plaintiff's health insurance carrier, but we haven't been able to receive those
declarations policies.
Lopez's counsel asked the court to dismiss the case or, in the alternative, to abate the
case for twenty days to allow Cortinas to obtain the necessary documents and, if she did
not comply, to dismiss the case after that time period expired.
After the parties concluded their arguments, Cortinas's counsel informed the trial
court that he was having difficulty contacting his client and may need to file a motion to
withdraw. The trial court did not rule on Lopez's motion to dismiss but abated the case
for thirty days to allow Cortinas's counsel to continue his attempts to both contact Cortinas
and obtain the documentation desired by Lopez.
The trial court held another hearing on August 13, 2013. Lopez's counsel argued
that Cortinas "has not exhausted any benefits through [her] health insurance," "[h]as not
provided proof that that insurance coverage has been exhausted, and has not—still has
not presented any declarations pages for her auto insurance." Cortinas's counsel stated
that he was able to contact his client and would not be withdrawing from the case. He
informed the trial court that, as to the RCA policy declarations page, "I'm unable to get
[them] because there's no office. . . . [T]he company is gone, so that's an issue that I'm
not sure how we're going to resolve." As to the health insurance policy, Cortinas's counsel
stated that he requested explanation of benefits ("EOB") forms from Cortinas's insurer on
July 26, 2013, and that "[m]y understanding is that they're on their way."
5
Cortinas's counsel further represented to the court that Lopez's counsel also
sought a copy of a release of assignments Cortinas made upon her admission to Valley
Baptist Medical Center. With respect to that document, counsel stated:
We are having difficulty having the officials at Valley Baptist understand
what it is, number one, and, number two, put a signature on it. . . . So
basically my response is this, Your Honor, I understand [Lopez's counsel]
wants their homework and he wants it now, but we have—we have
worked—we've put a lot of manpower in this, a lot of attorney time, and a
lot of assistant time trying to get the responsive documents, but these
documents are coming from other companies, from other parties, and we're
doing what we can to get this case resolved as well.
The trial court stated that he was not inclined to grant the motion to dismiss at that time
but would instead grant Cortinas ninety additional days to comply, during which time the
case would be abated. The court stated, however, that "[i]f you're in here still telling me
you can't get the documents and the Insurance Code says you need the documents, most
likely I will be dismissing at that point." Cortinas's counsel replied, "I understand."
On November 13, 2013, the trial court rendered an order stating that "any and all
claims asserted against Defendant shall be dismissed with prejudice on December 12,
2013, unless Plaintiff obtains and furnishes a valid Release of Assignment of Lien from
Plaintiff's healthcare providers and obtains and furnishes any and all Explanation of
Benefit documentation from Plaintiff's health insurance carrier. 115
On December 11, 2013, Lopez filed a motion requesting entry of an order granting
its previously-filed motion to dismiss. In the motion, Lopez stated that Cortinas had not
provided any EOB forms from her health insurance carrier. Lopez acknowledged that
Cortinas had provided a "Release of Assignments" executed by a hospital representative,
The order indicates, and Cortinas states on appeal, that a third dismissal hearing was held prior
to the entry of this order. The record contains no transcript of any such hearing.
but he argued that this document was not compliant with the November 13 order because
it was not a "Release of Assignment of Lien." 6 The trial court granted Lopez's motion on
December 18, 2013, rendering a final judgment dismissing Cortinas's lawsuit with
prejudice.
Cortinas then filed a motion to reconsider accompanied by affidavits detailing the
6
The "Release of Assignments' document was prepared by Cortinas's counsel and presented to
the hospital for execution. The document, a copy of which was attached to Lopez's motion for entry of
order, states as follows:
VALLEY BAPTIST MEDICAL CENTER BROWNSVILLE (the "Hospital") rendered services
to [Cortinas] on or about September 26, 2008. The services resulted from a motor vehicle
collision that occurred on or about that date. As of the date of this instrument, the current
balance owed is $188.64.
VALLEY BAPTIST MEDICAL CENTER . . . is the legal and equitable holder of a hospital
lien in the above-referenced amount, which has been duly recorded in Cameron County,
Texas.
VALLEY BAPTIST MEDICAL CENTER, as a condition of its services rendered to
[Cortinas], required her to assign and transfer "to the hospital, and hospital based
physicians (i.e., radiologists, pathologists, anesthesiologists, emergency department
physicians) all rights, title and interest in all benefits/monies payable for serves / supplies
rendered, including but not limited to group medical I indemnity / self-insured / ERISA
benefits / coverage, PIP, UIM / UM, auto / homeowner insurance, and all causes of action
against any party or entity that may be responsible for payment of benefits / monies
regardless of whether or not [Cortinas] ultimately settle[s her] claim with a non admission
liability provision."
VALLEY BAPTIST MEDICAL CENTER, also as a condition of its services rendered to
[Cortinas], required her to assign and transfer to the hospital "any and all claims, demands,
suits, remedies, guarantees, liens, and /or causes of action, at law or in equity, either in
contract or in tort, statutory or otherwise, as well as any other claim, in whole or in part,
which [she] may now have or may hereafter hold or possess, known or unknown, on
account of, growing out of, relating to or concerning, whether directly or indirectly,
proximately or remotely, any acts, omissions, events, transactions or occurrences that
have occurred or failed to occur which resulted in injuries for which the hospital has
provided and/or will provide medical goods and services to [her]."
VALLEY BAPTIST MEDICAL CENTER further required [Cortinas] to assign and transfer
to the hospital, "any and all rights (including appeal rights), title and interest in any and all
benefits, monies or other form of compensation paid or to be paid on [her] behalf as a result
of this injury / illness."
VALLEY BAPTIST MEDICAL CENTER does hereby release and forever discharge all
assignments made by [Cortinas] to the hospital as described above, without altering or
affecting in any way its rights with respect to the duly recorded hospital lien as described
above.
(Emphasis added.)
rA
various efforts made by Cortinas's counsel and his staff to obtain the required documents.
Cortinas's counsel averred in his affidavit, among other things, that he contacted the
hospital's compliance director; that the compliance director "indicated that she would
require the express approval of the hospital's legal department in order to sign the type
of release we needed"; that "to speed up the process, I prepared my own form for a
Release of Assignments for the legal department's review and signature"; and that "I
received the executed Release of Assignments form and produced it to Defense counsel
immediately upon my receipt, which was within the court-imposed deadline." The motion
to reconsider was also accompanied by copies of the police report and hospital admission
form, both dated September 26, 2008. At a hearing on March 25, 2014, Cortinas's
counsel stated, among other things, that he contacted Cortinas's health insurance carrier
and was informed that there would be no EOB forms generated because Cortinas's
claims were being denied. The trial court denied the motion to reconsider the next day,
and this appeal followed.
II. DISCUSSION
A. Applicable Law and Standard of Review
So-called "death penalty sanctions" are authorized by rule 215.2(b) of the Texas
Rules of Civil Procedure, which provides in part:
If a party. . . fails to comply with proper discovery requests or to obey an
order to provide or permit discovery, . . . the court in which the action is
pending may, after notice and hearing, make such orders in regard to the
failure as are just, and among others the following:
(5) an order striking out pleadings or parts thereof, or staying
further proceedings until the order is obeyed, or dismissing
with or without prejudice the action or proceedings or any part
thereof, or rendering a judgment by default against the
disobedient party.
TEX. R. Civ. P. 215.2(b). Whether the imposition of sanctions is "just," as required by the
rule, is measured by two standards:
First, a direct relationship must exist between the offensive conduct and the
sanction imposed. This means that a just sanction must be directed against
the abuse and toward remedying the prejudice caused the innocent
party. . .. Second, just sanctions must not be excessive. The punishment
should fit the crime. A sanction imposed for discovery abuse should be no
more severe than necessary to satisfy its legitimate purposes. It follows
that courts must consider the availability of less stringent sanctions and
whether such lesser sanctions would fully promote compliance.
TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991).
Moreover, "[d]iscovery sanctions cannot be used to adjudicate the merits of a
party's claims or defenses unless a party's hindrance of the discovery process justifies a
presumption that its claims or defenses lack merit." Id. at 918. For example, "if 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." Id. But
"[s]anctions which are so severe as to preclude presentation of the merits of the case
should not be assessed absent a party's flagrant bad faith or counsel's callous disregard
for the responsibilities of discovery under the rules." Id. "Even then, lesser sanctions
must first be tested to determine whether they are adequate to secure compliance,
deterrence, and punishment of the offender." Chrysler Corp. v. Blackmon, 841 S.W.2d
844, 849 (Tex. 1992).
A ruling on a motion for sanctions is reviewed for abuse of discretion, Cire v.
Cummings, 134 S.W.3d 835, 838 (Tex. 2004), as is a ruling on a motion for new trial. In
re R.R., 209 S.W.3d 112, 114 (Tex. 2006). The test for an abuse of discretion is not
whether, in the opinion of the reviewing court, the facts present an appropriate case for
the trial court's action, but "whether the court acted without reference to any guiding rules
and principles." Cire, 134 S.W.3d at 838-39. We reverse only if the ruling was arbitrary
or unreasonable. Id. at 839.
B. Analysis
By her first issue, Cortinas contends that the trial court cannot require her "to create
new documents or produce items that are not in her custody, possession, or control." We
construe this issue as challenging the propriety of the discovery requests and discovery
orders with which Cortinas was deemed to have not complied.
In response to Cortinas's first issue, Lopez contends that Cortinas waived any
complaint about the discovery requests themselves (as opposed to the sanctions
imposed for failing to comply with those requests) because she did not object to them.
We agree. A party objecting to a request for written discovery must make that objection
"in writing—either in the response or in a separate document—within the time for
response." TEX. R. Civ. P. 193.2(a). "An objection that is not made within the time
required . . . is waived unless the court excuses the waiver for good cause shown." TEX.
R. Civ. P. 193.2(e). Here, Cortinas did not assert any objection to Lopez's discovery
request until she argued in her motion to reconsider that the request impermissibly asks
for documents not in her custody, possession, or control. Moreover, she did not object to
the trial court's December 13, 2013 order—which, for the first time, required production
of a "Release of Assignment of Lien" 7—until the deadline for production as stated in that
We note that, according to the record, Lopez never served any formal discovery request for EOB
forms or a Release of Assignment of Lien" form. Further, the Guaranty Act does not appear to require that
a plaintiff produce any such forms in order to bring suit against a TPCIGA-defended party. See generally
Id. §§ 462.00 1—.351. Because the record does not contain a transcript of the hearing apparently held prior
10
order had passed. Finally, Cortinas did not attempt to establish "good cause" for her
failure to timely object to the discovery requests and orders. See Id. Accordingly, we
overrule Cortinas's first issue as waived.
By her second issue, Cortinas contends that dismissal was improper because she
"did not abuse the discovery process while exercising due diligence in attempting to
comply with the court's order." Specifically, she contends that she showed "good
cause . . . for her inability to obtain, create, and produce the documents sought" and that
"the sanction was overly severe." 8 Lopez contends, on the other hand, that Cortinas had
"ample opportunity to comply" with the requests and orders and that she "failed to avail
herself of numerous opportunities over two years to avoid dismissal."
We agree with Cortinas that the sanctions imposed were unjust in light of all the
circumstances. It is true, as Lopez notes, that the dismissal order came over five years
after the accident made the basis of the suit. However, according to the record, the first
formal discovery request was made by Lopez on April 9, 2012, after the mandatory six-
month stay expired. Cortinas timely complied with that request. She did not include a
declarations page for her auto insurance policy; however, counsel explained at the April
30, 2013 hearing that this was because her insurer—the same insurer that had covered
to the November 13, 2013 order, see supra n.5, we cannot discern why the production of these particular
documents was compelled. In any event, as set forth above, Cortinas has waived any complaint regarding
that order because she did not object to it prior to the production deadline. See TEX. R. Civ. P. 193.2.
8 In response to Cortinas's second issue, Lopez argues that we may not consider the affidavits
Cortinas filed with her motion to reconsider in evaluating whether the trial court erred by dismissing the suit.
We agree. Because the affidavits were not before the trial court at the time the case was dismissed, we
may not consider them in determining whether dismissal was proper. Moreover, "[a] party seeking a new
trial on grounds of newly-discovered evidence must demonstrate to the trial court that," among other things,
"the evidence has come to its knowledge since the trial ......Waffle House, Inc. v. Williams, 313 S.W.3d
796, 813 (Tex. 2010). Cortinas made no attempt to show that the facts recited in the affidavits "came to
[her] knowledge" after the December 13, 2013 dismissal.
11
Lopez—was no longer in business. Lopez's counsel did not dispute that this fact
constituted good cause for Cortinas's failure to produce the auto policy declarations page.
Instead, Lopez's counsel essentially withdrew his original request and made a new
request, not previously included in any formal written discovery, for EOBs that would show
the amount of any funds paid to the hospital under Cortinas's health insurance policy.
Later, at the August 13, 2013 hearing, Cortinas's counsel stated that he requested the
EOBs from the health insurance carrier on July 26, 2013 9 and that his "understanding"
was that the documents were "on their way." 10
As to the "Release of Assignment of Lien" document, the record reveals much
confusion. No formal request for this document appears in the record, and it is unclear
whether or when any informal request may have been made. What is clear, however, is
that Cortinas's counsel made a diligent effort to obtain such a document from the hospital.
Counsel took it upon himself to prepare a "Release of Assignment" which provided that
the hospital was releasing and discharging all assignments Cortinas made upon her
admission. The duly executed "Release of Assignment" form was served upon Lopez
prior to the discovery deadline. Lopez took exception to the fact that the release
preserved the hospital lien, which is imposed by statute, see TEX. PROP. CODE ANN.
Lopez emphasizes on appeal that Cortinas's counsel failed to show diligence because he first
requested EOB forms from the health insurance carrier on July 26, 2013, which was "more than a year after
they had been requested." But according to the record, the informal request for EOB forms was in fact first
made at the April30, 2013 hearing. The trial court then continued the hearing based on Cortinas's counsel's
representation that he was having trouble contacting his client. In light of this background, counsel's delay
in requesting EOB forms until July 26 does not appear unreasonable.
10
At the motion to reconsider hearing, cortinas's counsel explained that the health insurance
carrier would not be providing any EOBs because cortinas's claim was going to be denied anyway. Lopez's
counsel did not dispute that this fact constituted good cause for Cortinas's failure to produce the EOBs, but
again shifted the goalposts, arguing that "regardless of whether those claims may have been admitted or
denied by the insurance carrier, there should be some explanation as to why those benefits were denied or
whether those benefits were covered."
12
§ 55.002(a) (West, Westlaw through 2013 3d C.S.), but he did not cite any authority, and
we find none, establishing that Cortinas was required to show that the hospital lien was
released in order to sustain her action against Lopez. Accordingly, Cortinas's failure to
provide a "Release of Assignment of Lien," though technically a violation of the November
13, 2013 discovery order, did not support a presumption that Cortinas's claim lacks merit.
See TransAmerican, 811 S.W.2d at 917 ("Discovery sanctions cannot be used to
adjudicate the merits of a party's claims or defenses unless a party's hindrance of the
discovery process justifies a presumption that its claims or defenses lack merit.").
Finally, there is nothing in the record showing that the trial court ever considered
the availability of sanctions less stringent than dismissal or whether such lesser sanctions
would fully promote compliance, as strictly required by the second prong of the
TransAmerican test. See Id.; see also Chrysler Corp., 841 S.W.2d at 849 (noting that
"lesser sanctions must first be tested to determine whether they are adequate"). 11 On
appeal, Lopez does not address the issue of lesser sanctions but instead relies on the
fact that, at the August 13, 2013 hearing, Cortinas's counsel acknowledged that he
"underst[oo]d" that the trial court would likely dismiss the case in ninety days if the
documents were not produced. But this remark does not show that Cortinas consented
to dismissal or that dismissal was "just"; and it has absolutely no bearing on the issue of
whether the trial court fulfilled its duty, as stated by the Texas Supreme Court, to
"consider" and "test" less stringent sanctions before imposing the "death penalty." See
11
At the motion to reconsider hearing, Cortinas's counsel suggested, as an example of sanctions
less stringent than dismissal, that the trial court could have ordered Cortinas to pay the expenses incurred
by Lopez's counsel for travel to and from the various hearings. Other examples are provided in the rule
authorizing death penalty sanctions. See TEX. R. Cv. P. 215.2(b)(5) (noting that, if a party fails to comply
with discovery requests or orders, the court may strike pleadings or stay proceedings until the order is
obeyed).
13
TransAmerican, 811 S.W.2d at 817; see also Chrysler Corp., 841 S.W.2d at 849.
Because the trial court acted without reference to these guiding rules and principles, it
abused its discretion in dismissing the case. See Cire, 134 S.W.3d at 838-39. Cortinas's
second issue is sustained.
Ill. CONCLUSION
We reverse the trial court's judgment and remand for further proceedings
consistent with this opinion.
DORI CONTRERAS GARZA,
Justice
Delivered and filed the
10th day of December, 2014
14