Brewer v. Lennox Hearth Prods., LLC

• Decision Date: 24 April 2020
• Docket Number: No. 18-0426,18-0426
• Citation: 601 S.W.3d 704
• Parties: William A. BREWER III, Petitioner, v. LENNOX HEARTH PRODUCTS, LLC; Turner & Witt Plumbing, Inc.; Strong Custom Builders, LLC ; Thermo Dynamic Insulation, LLC ; State Farm Lloyds Insurance Company; Ken and Becky Teel; Ross and Meg Rushing, Respondents
• Court: Texas Supreme Court

601 S.W.3d 704

William A. BREWER III, Petitioner,

v.LENNOX HEARTH PRODUCTS, LLC; Turner & Witt Plumbing, Inc.; Strong Custom Builders, LLC ; Thermo Dynamic Insulation, LLC ; State Farm Lloyds Insurance Company; Ken and Becky Teel; Ross and Meg Rushing, Respondents

No. 18-0426

Supreme Court of Texas.

Argued October 10, 2019

Opinion Delivered: April 24, 2020

Rehearing Denied June 12, 2020

George M. Kryder III, Stephen S. Gilstrap, Melissa L. James, Vinson & Elkins LLP, Daniel L. Tobey, DLA Piper LLP (US), Linda S. Eads, Dedman School of Law Southern Methodist University, Dallas, Jack Paul Driskill, R. Michael McCauley Jr., Timothy Thomas Pridmore, McWhorter, Cobb and Johnson, L.L.P. Lubbock, for Petitioner.

Craig Hubert Myers, Timothy George, Fee, Smith, Sharp & Vitullo, LLP, Dallas, for Respondent Lennox Hearth Products, LLC

Ben Taylor, Merquette William Wolf, Ted B. Lyon, Jr., Ted B. Lyon & Associates, P.C., Mesquite, for Respondents Meg Rushing, Ross Rushing, Becky Teel, Ken Teel.

N. Scott Carpenter, Rebecca E. Bell, Carpenter & Schumacher, P.C., Plano, for Respondent State Farm Lloyds Insurance Company.

Douglas Christopher Heuvel, Carpenter & Schumacher, P.C., Plano, for Respondent Strong Custom Builders, LLC.

Angela Marie Hahn, Doyen Sebesta Ltd., LLP, Houston, Bill Harriger, Field Manning Stone Hawthorne & Aycock P.C., Lubbock, for Respondent Thermo Dynamic Insulation, LLC.

Mark L. Packard, Packard, Hood, Johnson & Paul, L.L.P., Amarillo, for Respondent Turner & Witt Plumbing.

Brian Patrick Lauten, Brian Lauten, P.C., Dallas, for Amicus Curiae American Board of Trial Advocates.

John Gaither, Patrick J. Neligan Jr., Neligan LLP, Dallas, for Amicus Curiae Insights Association.

Jennifer D. Jasper, Munck Wilson Mandala LLP, Austin, Shahin A. Khoshbin, Munck Wilson Mandala LLP, Dallas, for Amicus Curiae Professor Emeritus Paul J. Strand, Ph.D.

Roger W. Hughes, Adams & Graham, L.L.P., Harlingen, for Amicus Curiae Texas Association of Defense Counsel.

David E. Chamberlain, Chamberlain & McHaney, Austin, for Amicus Curiae Texas Chapters of ABOTA.

Thomas A. Adams, William Kyle Adams, The Adams Law Firm, Katy, for Amicus Curiae Texas Trial Lawyers Association.

Justice Guzman delivered the opinion of the Court, in which Chief Justice Hecht, Justice Green, Justice Lehrmann, Justice Devine, Justice Blacklock, and Justice Busby joined.

Lawyers are under a professional obligation to act with commitment and dedication to their clients' interests, but they are neither duty-bound nor permitted to press for every possible advantage under the imprimatur of zealous advocacy.¹ The discretion to determine the trial tactics and litigation strategies to employ, while considerable, is cabined by ethical standards memorialized in sundry rules and statutes and is subject to the inherent authority of courts to preserve the integrity of our judicial system.²

In this products-liability and wrongful-death suit, the trial court sanctioned an attorney for commissioning a pretrial survey that commenced in the county of suit shortly before trial. No rule, statute, or applicable court order categorically prohibited or specifically constrained the use of a pretrial survey in this case or otherwise, and as far as we can discern, this is the only reported case imposing sanctions on a lawyer for conducting such a survey. We hold that the sanctions order, issued under the court's inherent authority, cannot stand because evidence of bad faith is lacking. Inherent authority has been likened to an "imperial"³ power with intrinsic "potency" that necessitates "restraint," "discretion," and "great caution";⁴ accordingly, sanctions issued pursuant to a court's inherent powers are permissible only to the extent necessary to deter, alleviate, and counteract bad-faith abuse of the judicial process.⁵ Certain attributes of the pretrial survey may have been reasonably disconcerting to the trial court, but the record bears no evidence of bad faith in the attorney's choice to conduct a pretrial survey or in the manner and means of its execution. We therefore vacate the sanctions order.

I. Background

The underlying products-liability and wrongful-death suit settled on the eve of trial amid a host of pending motions seeking sanctions against the product manufacturer's trial counsel, William H. Brewer III and his law firm, Bickel & Brewer (collectively, Brewer).⁶ The sanctions motions complained that Brewer and his firm had improperly commissioned a telephone survey to be conducted in the county of suit mere weeks before the scheduled jury trial without ensuring witnesses, represented parties, judges, and court personnel were excluded from the survey database and without voluntarily disclosing the survey to the trial court or the litigants. The movants characterized the survey as a "push poll" that was designed to influence or change public opinion and taint the jury pool rather than a legitimate effort to conduct community-attitude research.⁷ In addition to compensatory sanctions, the movants requested total forfeiture of all fees the manufacturer had paid to Bickel & Brewer for the litigation.

The tragic facts and allegations in the underlying lawsuit set the context for the telephone survey and the trial court's sanction order. Suit was filed shortly after a residential home in the City of Lubbock caught fire during a lightning storm in August 2012. The fire ignited gas seeping from pipes that had been perforated by lightning-induced electrical arcs. The ensuing explosion resulted in the death of a house guest by thermal insult and significant personal-injury and property losses to the homeowners. The following month, the City of Lubbock issued a moratorium on the use of yellow-jacketed corrugated stainless steel tubing (CSST), the type of gas plumbing pipe used in the home's construction.

Within weeks, the homeowners and the decedent's parents sued the CSST manufacturer, the pipe supply company, and the pipe installer. Among other allegations, the plaintiffs asserted the CSST product used in the home's construction was defectively designed because it was too thin to withstand the effects of a lightning strike; the plumbing company was negligent in selecting and installing a defective product, but had installed the CSST in accordance with the manufacturer's instructions; and the pipe supplier was negligent in selling a product known in the industry to be prone to failure in lightning events.

After answering with a general denial, the pipe manufacturer, Titeflex Corporation, filed third-party claims against (1) the installer of the spray-foam insulation in the attic, (2) the home builder, and (3) the manufacturer of the fireplace that had been installed in the home. Titeflex's litigation position was that CSST is safe when properly installed and that other conditions, including improper installation, caused or contributed to the explosion. To that end, Titeflex disputed a determination by the City's fire marshal and chief building inspector that the CSST piping in the homeowner's residence had been installed properly even though it was in contact with electrical wires.

Trial was eventually scheduled to commence in June 2014, and the subject telephone survey was conducted on Titeflex's behalf in late May of that year. Several noteworthy events occurred in advance of the survey.

In December 2013, the City extended the moratorium to include a CSST product not involved in this litigation (black-jacketed CSST); the media covered both the initial and expanded moratoriums; and one of the plaintiffs' attorneys provided a responsive comment in at least one televised news story. Plaintiffs' counsel also:

• set up a website touting the dangers of CSST piping;⁸

• conducted a telephone poll to gauge the community's familiarity with CSST products and whether those products were used in the survey respondents' homes;⁹ and

• hosted Lubbock's assistant fire marshal, Bob Bailey, and chief building official, Steve O'Neal, on a trip to Massachusetts to view a demonstration involving CSST lightning impacts, which the Lightning Institute conducted shortly before the City announced the expanded moratorium.¹⁰

Titeflex viewed these events as detrimental to its business and as negatively impacting its litigation strategy.

A few months before the December 2013 moratorium expansion, Brewer and his law firm joined Titeflex's litigation team. According to Brewer, the moratoriums, extensive press coverage, and plaintiffs' counsel's media activities impelled the law firm to commission a pretrial survey to gauge community attitudes toward Titeflex's legal position and defensive theories. Travis Carter, Bickel & Brewer's director of community and media relations, spearheaded the survey project for the law firm. Carter selected Public Opinion Strategies, a nationally recognized public opinion research firm, to develop and conduct "a random independent poll in regard to certain attitudes and opinions that would likely be prevalent among homeowners in Lubbock, Texas." According to Brewer and his staff, the scope of the poll was to include community attitudes and opinions about CSST, the moratoriums, and potential litigation themes.

Public Opinion Strategies was tasked with drafting the survey questions, and to assist with that endeavor, Carter gave the survey company a background sheet on CSST that he had prepared along with links to state and national media coverage and newspaper articles reporting on the explosion and moratoriums. After receiving a draft of the survey from Public Opinion Strategies, Carter edited the survey to add questions adverse to Titeflex's litigation position "to balance the poll" and ensure "there were statements in there that were both favorable toward and opposed to the view of the Defendants." Brewer reviewed the revised draft, suggested some tweaks, and gave the go-ahead to move forward. The final version of the survey, which is attached as Appendix A, was composed of 42 questions, more than...