Cire v. Cummings

• Decision Date: 23 April 2004
• Docket Number: No. 02-0670.,02-0670.
• Parties: George E. CIRE, Jr., Martha K. Adams and Taylor & Cire, Petitioners, v. Carla Roberson CUMMINGS, Respondent.
• Court: Texas Supreme Court

134 S.W.3d 835

George E. CIRE, Jr., Martha K. Adams and Taylor & Cire, Petitioners, v. Carla Roberson CUMMINGS, Respondent.

No. 02-0670.

Supreme Court of Texas.

Argued October 1, 2003.

Decided April 23, 2004.

Rehearing Denied June 18, 2004.

Byron G. Lee, Carol Patricia Keough, Coats Rose Yale Ryman & Lee, P.C., Houston, Charles R. Watson Jr., Mullin Hoard & Brown, L.L.P., Amarillo, for petitioners.

L.T. "Butch" Bradt, Telschik Law Firm, Houston, for respondent.

Justice SCHNEIDER delivered the opinion of the Court.

The issue in this case is when, if ever, a trial court may strike a plaintiffs pleadings as a sanction without first testing the effectiveness of lesser sanctions. We conclude that in this case, the trial court did not abuse its discretion by striking the plaintiffs pleadings and imposing death penalty sanctions when the plaintiff violated the trial court's orders by deliberately destroying dispositive evidence sought by the defendant in discovery. Thus, we reverse the court of appeals' judgment and accordingly, render a take-nothing judgment against Cummings.

I

Attorneys George Cire and Martha Adams and the law firm of Taylor & Cire (collectively "Cire") represented Carla Cummings ("Cummings") in a suit against Texas Utilities Fuel Company ("TUFCO"). After the TUFCO litigation settled, Cummings filed a legal malpractice fee forfeiture suit against Cire, claiming that Cire told her the settlement would be "tax free" and that Cire did not explain how the settlement or the resulting attorney's fees would be structured and paid.

During pretrial discovery of the malpractice suit, Cummings testified that she had tape-recorded several conversations with Cire during the TUFCO litigation, including discussions of the settlement negotiations. Specifically, the record reflects that Cummings made between 70 to 100 secret audiotape recordings during the eight months preceding the settlement agreement, and she kept the audiotapes in her home office.

Cire requested production of the audiotapes in discovery and Cummings objected to the request. Cire then moved to compel production. Cummings did not file a response. Without an oral hearing, the trial court entered an order compelling production. The trial court found that Cummings filed evasive, incomplete answers and frivolous objections to discovery requests. The trial court also ordered that Cummings's counsel pay $250 in attorney's fees to Cire's counsel.

Cummings did not comply with the trial court's order. Instead, Cummings sought a writ of mandamus, which was denied by the court of appeals and this Court. The trial court again ordered Cummings to comply with the discovery requests, and after Cummings again refused to comply, the trial court granted Cire's second motion to compel. Again, Cummings refused to comply, so Cire filed a motion to strike Cummings's pleadings. It is not contested that Cummings had possession of the audiotapes. Nor is it an issue that Cummings had a duty to preserve the audiotapes once they were sought by Cire in discovery. See Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 722 (Tex.2003).

At the sanctions hearing, Cummings admitted that she had possession of the audiotapes she made recording conversations with her attorneys. There was testimony that the audiotapes contained recorded conversations regarding the TUFCO settlement and that Cummings planned to "use the audiotapes against" Cire to "help her case." Elizabeth Martinez, Cummings's friend and neighbor, testified that she had seen 70 to 100 audiotapes in Cummings's home office (approximately "two shoe boxes full") that Cummings had made of her conversations with Cire. Martinez also testified that she and several others heard portions of the audiotapes. The audiotapes were the only evidence that would support or disprove Cummings's claims of misrepresentation. The record does not reflect that there was any other evidence that would support either side's position.

Cummings testified at the hearing that she did not destroy the audiotapes and that she did not tell anyone to destroy the audiotapes. However, Cire presented evidence at the sanctions hearing that Cummings burned the audiotapes in the presence of Elizabeth Martinez, and that Cummings laughed with her friends about being a habitual liar. After listening to the evidence presented, the trial court determined that Cummings deliberately destroyed the audiotapes to avoid production, and, based on this determination, properly presumed that her actions prevented Cire from obtaining objective proof that they were not liable. See Trans-American Natural Gas Corp. v. Powell, 811 S.W.2d 913, 918 (Tex.1991) (noting that a party's hindrance of the discovery process may justify a presumption that its claims lack merit). Cummings's own statements that the audiotapes would help her case against Cire supports the trial court's findings that the audiotapes were material and relevant to the case. Cummings's deliberate destruction of the audiotapes further justifies the trial court's presumption that, contrary to Cummings's assertions, the tapes would not have helped her case. The trial court did not abuse its discretion in making these findings of fact based on the testimony presented. The trial court granted the motion to strike the pleadings as a sanction for Cummings's failure to comply with the discovery orders.

In its order, the trial court's primary focus was on Cummings's failure to produce the audiotapes. The trial court found that Cummings "flagrantly violated" four discovery orders by her failure to comply with them, tried to hide her relationship with other attorneys by refusing to answer deposition questions, used forged documents "to gain an advantage with the court," gave conflicting testimony under oath, and "deliberately destroyed and/or concealed material evidence" [the audiotapes] that would "show [Cummings's] claims had no merit."

The trial court found that less stringent sanctions would be "ineffective," reasoning that because Cummings's counsel never paid the $250 sanction for filing frivolous objections to discovery, monetary sanctions would not deter Cummings. In addition, the court found that less stringent sanctions could not cure Cummings's wrongdoing based on its presumption that Cummings's destruction of the audiotapes, after they had been repeatedly ordered produced, deprived Cire of objective factual evidence that went to the heart of the proof required to show that Cummings's claims lacked merit. The court of appeals reversed, holding that the trial court abused its discretion when it failed to consider alternative, lesser sanctions and when it did not explain why lesser sanctions would not suffice. 74 S.W.3d at 929. The court of appeals noted that the trial court had only issued sanctions once before striking Cummings's pleadings. Emphasizing that the fine imposed was against Cummings's attorney, the court of appeals concluded that the failure to pay the fine should not be used as evidence that a lesser sanction against Cummings would have been ineffective. The court of appeals also said that the trial court could have and should have considered other, lesser sanctions before it imposed death penalty sanctions. It suggested a less stringent sanction: a spoliation instruction to the jury directing it to assume the missing audiotapes would have been unfavorable to Cummings. Ultimately, the court of appeals concluded that the trial court violated GTE Communications Sys. Corp. v. Tanner, 856 S.W.2d 725, 729-30 (Tex.1993), when it refused to consider lesser sanctions.

We granted the petition to consider the issue of death penalty sanctions and to examine whether a trial court's sanctions order must recite why every conceivable sanction would be ineffective in securing compliance and curing prejudice before striking pleadings.

II

A trial court's ruling on a motion for sanctions is reviewed under an abuse of discretion standard. Bodnow Corp. v. City of Hondo, 721 S.W.2d 839, 840 (Tex.1986); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex.1985). 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." Downer, 701 S.W.2d at 241; see also Bodnow Corp., 721 S.W.2d at 840. The trial court's ruling should be reversed only if it was arbitrary or unreasonable. Downer, 701 S.W.2d at 242.

Texas Rule of Civil Procedure 215.2 allows a trial court to sanction a party for failure to comply with a discovery order or request. Rule 215.2(b) lists the sanctions a court may impose. They include: (1) an order disallowing any further discovery of any kind; (2) an order charging all or a 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; and (7) an order requiring the disobedient party to pay reasonable expenses, including attorney fees, caused by the failure. TEX.R. CIV. P. 215.2(b).

Sanctions are used to assure compliance with discovery and deter those who might be tempted to abuse discovery in the absence of a deterrent. Downer, 701 S.W.2d at 242. However, a trial court may not impose a sanction that is more severe than necessary to satisfy its legitimate purpose. Hamill v. Level, 917 S.W.2d 15, 16 (Tex.1996). Here, the court of appeals relied on our previous holdings in Trans-American...