DocketNumber： 13-02-440-CV
Citation Numbers： 132 S.W.3d 180, 2004 Tex. App. LEXIS 2960, 2004 WL 690812
Judges： Wittig, Castillo, Rodriguez
Filed Date： 4/1/2004
Status： Precedential
Modified Date： 10/19/2024
OPINION
Opinion by
This is an attorney sanction case arising out of a products liability and medical malpractice lawsuit. The underlying suit involved the death of Henry White, alleged to have been caused by the drug Propulsid and the related medical treatment. Thomas J. Henry and the Law Office of Thomas J. Henry (“Henry”), appellants, were attorneys for the widow, Joyce White, and the estate of Henry White. Henry appeals an order granting $50,000 in sanctions sought by two of the multiple defendants in the underlying cause, Robert Low, D.O., and Stephen Smith, M.D. (the “Doctors”), appellees. Henry contends that the trial court abused its discretion both by granting sanctions and in the amount of the sanctions it imposed. We reverse and render.
I. PROCEDURAL BACKGROUND
Henry filed suit on behalf of the widow and the estate of White against Johnson and Johnson, Inc., Janssen Pharmaceutica
After notice to the parties, the trial court held a hearing on July 30, 2002 based on the two sanction motions filed by the Doctors. Henry appeared at the hearing by counsel only. The trial court took judicial notice of the pleadings and other papers in the file. The Doctors testified that they did not prescribe or administer the drug Propulsid to the deceased. Over multiple objections, two other doctors testified' that Henry had asserted claims against them that had no reasonable basis or that he asserted virtually identical claims. On July 31, 2002, the trial court signed an order granting the Doctors’ motions for sanctions and ordered payment by Henry of $50,000 into the registry of the court. The fine consisted of $25,000 for each of the Doctors’ motions. On August 2, 2002, the trial court signed findings of fact and conclusions of law regarding its imposition of sanctions as well as a revised order incorporating its findings and conclusions. Henry filed post-sanction motions to modify, vacate, or reform the order and a motion for new trial. The trial court heard Henry’s post-sanction motions on October 15, 2002. Henry appeared and testified during the hearing. The trial court denied the motions. This appeal ensued.
II. JURISDICTION
The Doctors filed their sanction motions before the plaintiffs nonsuited their claims. Thus, the trial court had continuing jurisdiction to hear and determine the sanction motions after the nonsuit. Tex.R. Civ. P. 162; In re Bennett, 960 S.W.2d 35, 38 (Tex.1997).
III. STANDARDS
A. Presumptions and Burdens of Proof in Sanctions Motions
Generally, courts presume that pleadings and other papers are filed in good faith. GTE Communications Sys. Corp. v. Tanner, 856 S.W.2d 725, 730 (Tex.1993) (orig.proceeding).
B. Standard of Review
A trial court’s imposition of sanctions is reviewed under an abuse of discretion standard. In re Bennett, 960 S.W.2d at 40; Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 853 (Tex.1992); Koslow’s v. Mackie, 796 S.W.2d 700, 704 (Tex.1990); Rudisell v. Paquette, 89 S.W.3d 233, 236 (Tex.App.-Corpus Christi 2002, no pet.). Under an abuse of discretion standard, the appellate court reviews the entire record to determine if the trial court acted arbitrarily and unreasonably and thus abused its discretion. IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 444 (Tex.1997). We may not substitute our judgment for that of the trial court. Davis v. Huey, 571 S.W.2d 859, 862 (Tex.1978). The test for determining whether the trial court abused its discretion is whether it acted without reference to any guiding rules and principles to the extent the act was arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985); Alejandro v. Bell, 84 S.W.3d 383, 392 (Tex.App.-Corpus Christi 2002, no pet.). A trial court abuses its discretion in imposing sanctions if it bases its order on an incorrect view of the law or an erroneous assessment of the evidence. Randolph v. Jackson Walker, L.L.P., 29 S.W.3d 271, 276 (Tex.App.Houston [14th Dist.] 2000, pet. denied).
IV. ANALYSIS
The Trial Court’s Discretion to Sanction under Chapter 10
Henry’s first issue asserts that the trial court abused its discretion in imposing sanctions. More specifically, Henry argues: (1) chapter 10’s stringent requirements do not apply to alternative pleadings; (2) that the trial court should not have based its decision solely on one allegation when alternatives existed; (3) that the trial court should have allowed evidence of alternative complaints; (4) there was no evidence of Henry’s intent; (5) the trial court erred in basing sanctions on other grounds not pled; (6) the trial court erred in basing chapter 10 sanctions on findings under rule 13 and chapter 9; and (7) the trial court erred by failing to comply with the findings requirements of chapter 10. We will only address Henry’s sub issues one, two, five, and seven. See Tex.R.App. P. 47.1.
The trial court in its order for sanctions stated that sanctions were warranted “pursuant to § 10.004(b).”
Section 10.001 of chapter 10 provides:
The signing of a pleading or motion as required by the Texas Rules of Civil Procedure constitutes a certificate by the signatory that to the signatory’s best knowledge, information, and belief, formed after reasonable inquiry:
(1) the pleading or motion is not being presented for any improper purpose, including to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) each claim, defense, or other legal contention in the pleading or motion is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
(3) each allegation or other factual contention in the pleading or motion has evidentiary support or, for a specifically identified allegation or factual contention, is likely to have evidentia-ry support after a reasonable opportunity for further investigation or discovery; and
(4) each denial in the pleading or motion of a factual contention is warranted on the evidence or, for a specifically identified denial, is reasonably based on a lack of information or belief.
Tex. Civ. PRAC. & Rem.Oqde Ann. § 10.001 (Vernon 2002). A court may punish violations of chapter 10 by imposing sanctions on the “person, [the] party represented by the person, or both” who “has signed [the] pleading or motion in violation of Section 10.001.” Tex. Civ. PRAC. & Rem.Code Ann. § 10.004(a) (Vernon 2002).
In his first two sub-issues, Henry complains the trial court abused its discretion in concluding that sanctions lie for a pleading that asserts alternative claims even though there is no identification of the particular defendants to which each claim applies. The trial court should not sanction for an alternative pleading while ignoring other applicable alternatives. In the petition he drafted and signed, multiple allegations were made against four drug manufacturers, a hospital, a nurse, and eight physicians. Under strict liability, the petition alleged ten claims against the drug manufacturers. Twenty-five negligence allegations were also made against these corporate defendants, plus four per se negligence allegations. The compound, complex pleading also averred misrepresentation, fraud and warranty violations. A separate section of the petition delineated the alleged negligence of a nurse, physicians and the hospital. This separate section, against ten different individual defendants was the genesis of the sanction proceedings.
Sixteen separate allegations were made. Many of the allegations dealt directly or indirectly with the drug Propulsid,
The pleading specifically stated: “[T]hey were negligent during the course of treatment given to Plaintiff Henry White in one or more of the following particulars.... ”
The face of the pleading clearly did not implicate every physician, the nurse, or hospital in every allegation. Nor did the pleading allege the Doctors committed any particular act.
The Doctors’ motions for sanctions drew careful aim only at the allegations that they prescribed Propulsid. “This Defendant is accused of negligence in connection with an assertion that he prescribed the drug Propulsid to the decedent, Henry White. In truth and in fact, this Defendant never prescribed or provided Propulsid for Mr. White.” Both Doctors attached affidavits stating they did not prescribe the drug and their hearing testimony echoed this complaint. The sanction motions continued: “The medical records ... contain no references to either physician [having] prescribed or approved Propulsid for the decedent.” Because both Doctors only treated the deceased at the hospital where he died, there seems to be little doubt the Doctors were not involved in the allegations dealing with the prescription of Propulsid, failure to warn, advise, treat and properly monitor the deceased before admission to the hospital. Rather the proof showed their treatment of the deceased was after his stroke and hospitalization.
At the hearing, the trial court rejected as irrelevant most of Henry’s attempts to cross examine or adduce evidence concerning material allegations of negligent treatment in the hospital leading to the death of Henry White. Thus, the $50,000 sanction was based upon only select allegations, involving a drug the Doctors did not prescribe. The trial court clearly rejected. Henry’s argument concerning alternative pleadings. Yet there was no proof of which alternative allegations were directed at the Doctors.
Henry argues the petition did not specifically accuse the two Doctors of prescribing the drug. Instead, alternative acts of negligence against several physicians were made. Henry also argues the Doctors even filed special exceptions claiming the pleadings were vague, ambiguous, and unclear. Henry argues the proper remedy for a pleading lacking specificity is special exceptions. See Tex.R. Civ. P. 91; see also Horizon/CMS Healthcare Corp. v. Auld, 84 S.W.3d 887, 897 (Tex.2000) (an opposing party should use special exceptions to identify defects in pleading so that they may be cured). We agree.
The Doctors counter that Henry’s conduct was nevertheless sanctionable because chapter 10 provides “each allegation or other factual contention in the pleading or motion has evidentiary support, or for a specifically identified allegation or factual contention, is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery....” Tex. Civ. Prao. & Rem.Code Ann. § 10.001(3) (Vernon 2002). Chapter 10’s language is facially stronger than the language of Federal Rule 11(b), which requires “the allegations or other factual contentions” have or will likely have evidentiary support. See Fed.R.Civ.P. 11(b)(3). The Seventh Cir
The rules of civil procedure recite a myriad of circumstances allowing the join-der of parties and claims. For example, persons may be joined that are needed for a just resolution. Tex.R. Civ. P. 39. All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action. Tex.R. Civ. P. 40 (emphasis added).
A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of them ■ if made independently would be sufficient, the pleading is not*187 made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as he has regardless of consistency and whether based upon legal or equitable grounds or both.
Tex.R. Civ. P. 48.
Thus, relief in the alternative or of several different types is patently authorized. Where there are several counts in the petition and entire damages are given, the verdict or judgment shall be good notwithstanding the fact that one or more counts may be defective. Tex.R. Crv. P. 49.
“Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth.” Tex.R. Crv. P. 50(a).
The plaintiff in his petition or in a reply setting forth a counterclaim and the defendant in an answer setting forth a counterclaim may join either as independent or as alternate claims as many claims either legal or equitable or both as he may have against an opposing party. There may be a like joinder of claims when there are multiple parties if the requirements of Rules 39, 40, and 43 are satisfied.
Tex.R. Civ. P. 51(a).
We can only conclude our rules expressly permit parties to proceed on alternative theories of relief. Regency Advantage Ltd. P’ship v. Bingo Idea-Watauga, Inc., 936 S.W.2d 275, 278 (Tex.1996); see Tex.R. Civ. P. 48.
Chapter 10’s stringent pleading requirements must be viewed not in a vacuum, but in the correspondingly liberal pleading allowances of the rules of procedure. By the black letter of the rules, Henry was allowed to join multiple parties and claims. Tex.R. Civ. P. 48 & 40. Chapter 10 requires each allegation or other factual contention in the pleading or motion to have evidentiary support. Tex. Civ. PRAo. & Rem. Code Ann. § 10.001(3) (Vernon 2002). However, we do not read chapter 10 to require that a claim or defense against one party also apply to all other parties. An alternative claim against a nurse need not apply against a physician. Nor does chapter 10 require that the evidentiary support against one party also be evidence against another party. Evidence against one physician need not support a claim against another physician.
Henry also argues that due process requires notice before other unrelated litigation can be considered as a basis for sanctions. The trial court, in its finding number fifteen, specifically noted that Henry “consistently” engaged in a similar pattern. Yet, no notice was given to Henry that other allegations were an intended basis of sanctions.
The Doctors argue that the trial court was entitled to consider “other wrongs or acts” as evidence of motive and intent. They cite Falk & Mayfield L.L.P. v. Molzan, 974 S.W.2d 821, 824 (Tex.App.-Houston [14th Dist.] 1998, pet. denied). Mol
The power to sanction is of course limited by the due process clause of the United States Constitution. See U.S. Const, amend. XIV; see Tex. Const. art. I, § 19 (due course of law); Tex. Civ. Prac. & Rem.Code Ann. § 10.003 (Vernon 2002) (notice of allegations and reasonable opportunity fo respond required); In re Bennett, 960 S.W.2d at 40. Texas follows a “fair notice” standard for pleading, which looks to whether the opposing party can ascertain from the pleading the nature and basic issues of the controversy and what testimony will be relevant. Horizon/CMS Healthcare Corp., 34 S.W.3d at 896. In Burnett v. James, 664 S.W.2d 407, 409 (Tex.Civ.App.-Dallas 1978, writ dism’d), the court observed that the general rule is that a prayer for general relief will authorize judgment for any relief a trial court has jurisdiction to grant so long as the judgment is supported by the allegations and proof and is consistent with the theory of recovery stated in the pleadings. Id. (citing Jennings v. Tex. Farm Mortgage Co., 124 Tex. 593, 80 S.W.2d 931 (1935); Seureau v. Mudd, 515 S.W.2d 746 (Tex.Civ.App.-Houston [14th Dist.] 1974, writ ref'd n.r.e.)). Here, no general relief was requested.
Furthermore, in certain instances, the type of relief requested must be specifically prayed for, or the trial court cannot grant it. Id. (rescission is one of these instances); see also Green Tree Acceptance, Inc. v. Pierce, 768 S.W.2d 416, 421 (Tex.App.-Tyler 1989, no writ). Because the applicable code requires a motion for sanctions thereunder to describe the specific conduct violating section 10.001, we hold that the Doctors’ pleadings do not support any sanctions under chapter 10 for unrelated and unnoticed prior litigation. See Tex. Civ. Prac. & Rem.Code Ann. § 10.002 (Vernon 2002); Davila v. World Car Five Star, 75 S.W.3d 537, 542-43 (Tex.App.-San Antonio 2002, no pet.) (under pleadings, sole grounds for sanctions at trial was section 17.50; other post-trial sanctions under rule 13 and chapter 10 not considered by the trial court); see also Metzger v. Sebek, 892 S.W.2d 20, 51 (Tex.App.-Houston [1st Dist.] 1994, writ denied) (where sanctions order refers to one specific rule, review limited to that rule).
We further observe, although not specifically argued by Henry, that both Doctors began their preamble of virtually identical motions for sanctions, stating they were filing the motions under rule 13, chapter 9 of the Texas Civil Practice and Remedies Code and chapter 10. However, their requested relief under identical paragraphs VIII, unequivocally stated: “This Defendant respectfully move[s] the Court, pursuant to Chapters 9 and 11 of the Texas Civil Practices & Remedies Code, to enter an order as follows.... ” The paragraph
Next, we address Henry’s argument that the trial court did not include any specific findings that would justify a chapter 10 sanction. Chapter 10 mandates the trial court shall describe both the conduct and basis for its sanctions. Tex. Civ. PRAC. & Rem.Code ANN. § 10.005 (Vernon 2002). The use of the word “shall” in the statute indicates that the requirement for particularity in the sanction order is mandatory. Univ. of Tex. at Arlington v. Bishop, 997 S.W.2d 350, 355 (Tex.App.Fort Worth 1999, pet. denied). Aside from setting out the procedural history of the case and various statutory language, one conclusory finding is offered as support for the sanctions. That finding merely tracks the statutory language of chapter 10. Finding of fact 13 states:
[E]ach and all the allegations brought against Drs. Low and Smith and therefore the lawsuit brought against these physicians, did not, on January 31, 2002, and do not now, have evidentiary support; nor were they on January 31, 2002 likely to have evidentiary support after a reasonable opportunity for further investigation or discovery in contravention of the requirements of chapter 10 of the Texas Civil Practice and Remedies Code.
First, we are constrained to note the vast over-reach by the drafter of this finding, which we assume to be the Doctors’ counsel. The trial court excluded cross-examination concerning the allegations against the Doctors contained in Henry’s original petition, save and except those narrowly dealing with the drug Propul-sid.
Secondly, and to this point, the finding is no more than a general conclusory statement. In sum, the finding could just as well say, Henry had no evidence and could not reasonably expect to discover any evidence. Evidence of or pertaining to what? The doctors were at the hospital and were charged with the responsibility of diagnosing and treating a man suffering from a stroke. They allegedly failed to meet their responsibilities in diagnosing the cardiac condition caused by the drug, failed to properly read and interpret the ECGs, failed to administer proper treatment, failed to follow up on ordered tests, and the pro se widow’s husband died. The medical records are conspicuous by their absence from the record. Henry ordered the hospital and doctors’ records, presumably for review, but neither the trial court nor the appellate court are afforded this critical evidence. Under the finding, no specific conduct is delineated. The finding fails to explain the basis for the significant sanction imposed. See Tex. Civ. Prac. & Rem.Code Ann. § 10.005 (Vernon 2002).
The harm to Henry is patent. The primary basis of the large monetary sanction was that alternative allegations were not shown to apply to the Doctors. The additional basis for the sanction relied upon allegations that were not noticed or pled. Nor is the basis of the sanctions detailed or explained. We can only conclude that Henry suffered harm in the form of a $50,000 sanction award. Tex.R.App. P. 44.1(a)(1), (2).
Because of our disposition, a discussion of the magnitude of the sanctions and other sub-issues are not necessary to the disposition of this appeal. Tex.R.Ajpp. P. 47.1
We conclude that the trial court acted outside the guiding rules and principles in determining Henry’s representation warranted sanctions pursuant to chapter 10. See Downer, 701 S.W.2d at 241-242. Specifically, (1) chapter 10’s stringent requirements do not apply to alternative pleadings in the context presented; Tex.R. Civ. P. 40, 48; see also Tex. Civ. Prao. & Rem. Code Ann. § 10.003; (2) specific conduct alleged to violate Section 10.001 must be supported by notice of the allegations; Tex. Civ. Prac. & Rem.Code Ann. § 10.003; and (3) the trial court must specifically detail the sanctionable conduct in its order and explain the basis for the sanction imposed. Tex. Civ. Prac. & Rem.Code Ann. § 10.005; Rudisell, 89 S.W.3d at 238.
Accordingly, we reverse and render the trial court’s sanction order. Tex.R.App. P. 43.2(c).
. Retired Justice Don Wittig assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex Gov't Code Ann. § 74.003 (Vernon Supp.2004).
. Tex.R. Civ. P. 13.
. Tex. Civ. Prac. & Rem.Code Ann. §§ 9.00-.014 (Vernon 2002).
. Tex. Civ. Prac. & Rem.Code Ann. §§ 10.001-.005 (Vernon 2002).
. While the parties do not dispute that Henry assisted the preparation of the nonsuit papers for filing by the Woods pro se after his formal withdrawal from the case, the trial court aptly found that the pro se plaintiff, not Henry, filed the nonsuit.
. We do not specifically address the application vel non of good faith to chapter 10 sanctions. In an unpublished opinion, the San Antonio court addresses this concern. See Griffin Indus. v. Grimes, No. 04-02-00430-CV, 2003 WL 1911993, *4 (San Antonio Apr. 23, 2003, no pet.) (applying good faith to chapter 10).
. Tex. Civ. Prac. & Rem.Code Ann. § 10.004(b) (Vernon 2002).
. Tex. Civ. Prac. & Rem.Code Ann. § 10.004(c)(2) (Vernon 2002).
. Propulsid was withdrawn from the market in 2000.
. Because the pleading asserted sixteen varied allegations against nine individuals plus the hospital, this created a matrix of one hundred and sixty combinations. Stated otherwise, that the pleading actually accused one of the Doctors with prescribing Propulsid, was a one in one hundred sixty possibility.
. The Doctors pointed the trial judge to page fifteen of Plaintiffs Original Petition; there most of the allegations not pertaining to the aftercare are listed. Only on appeal, do they now also point to another portion of the pleading, not presented or argued to the trial court. We base our decision on the motion, hearing, and evidence presented below, not new-found theories not argued or presented to the trial court.
. We also agree that each claim must have sufficient support; each must be investigated and researched before filing. See Frantz v. United States Powerlifting Fed., 836 F.2d 1063, 1067 (7th Cir.1987).
. We would also note Henry may well have been deprived of a meaningful hearing, because his counsel was not allowed cross-examination of the complaining doctors concerning most of the pleading’s allegations against the doctors. Davila v. World Car Five Star, 75 S.W.3d 537, 544 (Tex.App.-San Antonio 2002, no pet.)