Buyers Products Co. v. Clark
| Decision Date | 10 December 1992 |
| Docket Number | No. 09-92-126,09-92-126 |
| Citation | 847 S.W.2d 270 |
| Parties | BUYERS PRODUCTS CO., Relator, v. Honorable Pat CLARK, Respondent. CV. |
| Court | Texas Court of Appeals |
Michael C. Neel, Neel, Seymore, Price & Livingston, Houston, for appellant.
Michael R. McGown, Weller, Wheelus & Green, Michael R. Ramsey, Bush, Lewis, Ramsey & Roebuck, Beaumont, for appellee.
Before WALKER, C.J., and BROOKSHIRE and BURGESS, JJ.
This is an original mandamus action filed by Buyers Products Co., relator, requesting this Court to mandamus the Hon. Pat Clark, Judge of the 128th Judicial District Court, Orange County, Texas, to command him to rescind orders: 1) striking supplemental discovery responses filed by relator; 2) quashing the depositions of witnesses designated by relator; and 3) rescinding his order prohibiting relator from taking depositions other than the depositions of witnesses designated by plaintiffs below, Kimberly Hunter and Kurt Hunter, and defendants in the trial court below, Bradley Ferguson and John Hoffpauir. The order of which relator complains is dated May 21, 1992. We note our jurisdiction over this matter and the parties. TEX.GOV'T CODE ANN. § 22.221 (Vernon 1988).
This action arises from a personal injury action which occurred on February 24, 1989, when a house moving dolly being towed by a truck came loose and struck plaintiff, Kimberly Hunter. The truck was owned by Bradley Ferguson and driven by John Hoffpauir. Buyers Products was distributor of the "pintle hook" being used to tow the dolly. Defendants also include B.J. Truck and Trailer Supply and M.K.I. Industries. Plaintiffs' petition was filed April 7, 1989.
Buyers Products Company (called Buyers) mailed supplemental responses to plaintiffs' interrogatories on March 2, 1992, which were filed by the Clerk of the Court on March 4, 1992.
Buyers obtained informal notice on March 11, 1992, of a trial setting for March 30, 1992.
On March 16, Buyers was notified of the March 30 setting by the court clerk.
On March 19, plaintiffs filed a motion to strike supplemental answers filed by Buyers. The docket sheet reflects on March 20, 1992, "Motion to Quash denied".
It is uncontroverted that at the March 20, 1992 hearing, an order was made from the bench requiring Buyers to produce an expert's report from Ron Stroup on March 23, 1992, then produce Mr. Stroup for deposition by Wednesday, March 25, 1992. The expert's report was telefaxed to the plaintiffs' attorney's office on March 23, 1992, at 8:40 p.m. On the morning of March 24, 1992, a legal assistant for plaintiffs' attorney contacted Buyers' attorney's office to determine the status of the deposition to be taken by March 25, 1992. Buyers' attorney's secretary contacted plaintiffs' attorney's legal assistant in the afternoon of March 24, 1992, to schedule the deposition of the expert in question for Friday, March 27, 1992, at 10:00 a.m. in plaintiffs' attorney's office. A letter confirming this arrangement was telefaxed to plaintiffs' attorney's office on March 25, 1992, at 10:18 a.m. Attorneys for Bradley Ferguson, individually and d/b/a B & M Enterprises and John Hoffpauir were not favored with a copy of the expert's report by Buyers' attorneys nor were they made privy to the deposition arrangements.
On March 25, co-defendants Ferguson and Hoffpauir moved to strike Buyers' use of Ron Stroup as an expert witness. At the same time, plaintiffs moved to strike Buyers' supplemental answers for the second time.
On March 27, 1992, after a hearing by the trial court, Buyers' supplemental responses of March 2, 1992, were stricken. A written order on this hearing was signed April 3, 1992.
On March 30, 1992, the day of trial, Buyers moved for continuance under TEX.R.CIV.P. 245 because it did not have 45 days notice prior to trial setting. By order dated April 3, 1992, the court granted the motion for continuance and expressly stated that prior orders striking supplemental discovery and striking use of expert witness Stroup should remain in effect.
The case was reset for June 22, 1992.
On April 6, 1992, Buyers again filed supplemental answers identifying Ken Sorenson, Tom Gries, and Joseph Wicks as additional witnesses.
On this same day, Buyers filed a notice of intention to take the deposition of Wicks on April 16, 1992, in Corpus. It was later rescheduled for May 22, 1992.
On April 23, 1992, plaintiffs filed a motion to strike the supplemental answers of April 6, 1992, which was granted by the court on May 8, 1992.
Buyers, claiming a lack of specificity in the May 8 order, intended to go forward with Wick's deposition on May 22, 1992, in Corpus Christi, Texas.
On May 21, 1992, subsequent to motions being filed, the respondent, Judge Pat Clark, granted a motion for a protective order and the court sanctioned Buyers as follows: 1) Deposition of Joseph Wicks was quashed; 2) Buyers was prohibited from filing further supplemental answers; 3) Buyers was prohibited from scheduling depositions of witnesses other than those witnesses timely designated by plaintiffs or the defendants Hoffpauir or Ferguson.
It appears that the basis for striking Buyers' supplemental responses was the violation by Buyers' attorney of the trial court's oral order to produce Mr. Ron Stroup on Wednesday, March 25, 1992, for deposition, and in failing to deliver his report to opposing counsel by 5 p.m. March 23, 1992. The order is not specific in stating the grounds for sanctions. 1 If the "letter of the order" was not violated, certainly the spirit of the trial court's order was. The report was tendered by telefax after working hours at 8:40 p.m. in the evening of March 23, 1992. Attorney for the defendants Hoffpauir and Ferguson, did not receive a copy of the report from Buyers' attorney and, instead had to retrieve one from plaintiffs' attorney. It is also to be noted that the attorney for Hoffpauir and Ferguson was never consulted regarding the time and date of the deposition of Mr. Stroup. While a motion for continuance could have resolved this problem, Buyers' attorney chose not to file such motion until the day of trial. Until that time, the trial court had to make every effort to placate the parties so as to make the case trial ready. It is unfortunate that the various strategies employed only served to heighten the frustration of the trial court which culminated on Monday morning as the trial court, faced with a jury panel ready for voir dire examination, was ambushed with a motion for continuance good on its face. We perceive this as "game play" with opposing counsel and the trial court.
By 1985, our Texas Supreme Court openly encouraged trial judges to use sanctions to assure compliance with the discovery process and to deter abuse thereof. See Downer v. AquaMarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). Trial courts were given a wide berth by the appellate courts in their use of sanctions being governed by reasonableness only, even though "death penalties" were assessed, when less punitive sanctions were available. See generally Medical Protective Co. v. Glanz, 721 S.W.2d 382 (Tex.App.--Corpus Christi 1986, writ ref'd); Evans v. State Farm Mut. Auto. Ins. Co., 685 S.W.2d 765 (Tex.App.--Houston [1st Dist.] 1985, writ ref'd n.r.e.); Skinner v. Grimes Iron & Metal, 766 S.W.2d 550 (Tex.App.--Fort Worth 1989, no writ). In 1990, our Supreme Court rejected the argument that death penalty sanctions were as a matter of law unjust, unfair, and inappropriate for disobedience of a pre-trial order. Koslow's v. Mackie, 796 S.W.2d 700 (Tex.1990). In Koslow's, trial courts were again encouraged to use sanctions, citing Vasquez v. Chemical Exchange Industries, Inc., 721 S.W.2d 284 (Tex.1986); Plano Savings & Loan Ass'n v. Slavin, 721 S.W.2d 282 (Tex.1986); and Medical Protective Co. v. Glanz, supra.
We note with interest the case of Vaughn v. Texas Employment Comm'n, 792 S.W.2d 139 (Tex.App.--Houston [1st Dist.] 1990, no writ) wherein the court held that even if a party's wrongful discovery responses became immaterial at a later date, they were nevertheless liable for sanctions if they offended the discovery process at the time they were given. This we think answers relator's argument in the present case that the continuance and rescheduling of trial rendered all prior proceedings moot.
In 1991, the pendulum began its backswing. In TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex.1991) our Supreme Court recognized that choice of sanctions is within the sound discretion of the trial court including death penalties for abuse of discovery but added that the sanctions must be "just" and they may not deprive a party of constitutional due process. The Court set standards for review of whether the lower court imposed just sanctions. See also Pedraza v. Peters, 826 S.W.2d 741, 743 (Tex.App.--Houston [14th Dist.] 1992, n.w.h.). First, there must be a direct relationship between the offending conduct and the sanction imposed. The sanction must be directed against the abuse and toward remedying the prejudice to the innocent party. It also means that the sanction must be visited on the offender whether it is the party or his counsel, i.e., the party should not be punished for counsel's conduct. Secondly, just sanctions must not be excessive and no more severe than necessary to satisfy its legitimate purposes.
Chrysler Corporation v. Blackmon, 841 S.W.2d 844 (Tex.1992) restates the TransAmerican standards and adds that the trial court must consider relatively less stringent sanctions than imposing the death penalty to promote compliance, deterrence, and discourage further abuse. See also Rossa, 830 S.W.2d at 671. Since Chrysler, we now apply the following four step standard of measurement: (1) there must be a direct relationship between the conduct and the sanction; (2) the sanction cannot...
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