Fertic v. Spencer

• Decision Date: 19 April 2007
• Docket Number: No. 08-05-00268-CV.,08-05-00268-CV.
• Citation: 247 S.W.3d 242
• Parties: Samuel Keith FERTIC, Appellant, v. Joe A. SPENCER, Appellee.
• Court: Texas Court of Appeals

247 S.W.3d 242

Samuel Keith FERTIC, Appellant, v. Joe A. SPENCER, Appellee.

No. 08-05-00268-CV.

Court of Appeals of Texas, El Paso.

April 19, 2007.

Samuel Keith Fertic, Tennessee Colony, pro se.

Kenneth Allan Krohn, El Paso, for appellee.

Before CHEW, C.J., McCLURE, and CARR, JJ.

OPINION

DAVID WELLINGTON CHEW, Chief Justice.

Samuel Fertic appeals a no-evidence and traditional summary judgment in favor of Appellee Joe Spencer, in Mr. Fertic's breach of contract suit related to Mr. Spencer's representation of Mr. Fertic in a criminal prosecution for murder and forgery. Mr. Fertic brings four issues on appeal, in which he contends the trial court erred in: (1) striking his fact and expert witnesses; (2) granting summary judgment without sufficient notice of the hearing; (3) granting Mr. Spencer's summary judgment motion; and (4) denying him the right to a jury trial. We affirm.

On January 10, 2002, attorney Joe Spencer was retained by Thomas and Maureen Fertic to represent their son, Samuel, on charges for murder and forgery. Mrs. Fertic agreed to pay Mr. Spencer a flat fee of $25,000 for representing her son. It is undisputed that Mr. Spencer received the payment in full. At the time of Mr. Fertic's arrest, the El Paso Police Department impounded his vehicle, a 1997 Ford F150, and issued a garagekeeper's lien against the vehicle in the amount of $1,047.09. On March 1, 2002, Mr. Spencer issued a cashier's check to El Paso Towing for release of the vehicle and billed Thomas Fertic for the same. James Boardman executed an affidavit on March 1, 2002, in which he attested that he was given authority to claim and take possession of Mr. Fertic's vehicle from El Paso Towing. The Fertics later reimbursed Mr. Spencer for the expense in April 2002. On April 1, 2003, Mr. Spencer filed a motion to withdraw as Mr. Fertic's counsel in the criminal case, claiming that Mr. Fertic made representations that he no longer desired his services and wanted to retain alternative representation. The trial court in the criminal case granted the motion and appointed new counsel for Mr. Fertic.

On April 27, 2004, Mr. Fertic filed suit against Mr. Spencer for breach of contract, breach of fiduciary duties, legal malpractice, and violations of Texas Deceptive Trade Practices Act. Mr. Fertic later non-suited all his claims, except the breach of contract action. On April 26, 2005, Mr. Fertic replead his petition, asserting the breach of contract claim, and alternatively promissory estoppel and quantum meruit theories of recovery. In his petition, Mr. Fertic claimed that Mr. Spencer breached the contract by repudiating, improperly terminating, and refusing to perform his obligations under the contract. Mr. Fertic asserted he was entitled to recover under the doctrine of quantum merit because he paid Mr. Spencer $25,000 for legal representation and an additional $1,047 for release of the impounded truck, but Mr. Fertic still did not have the vehicle nor did he know its whereabouts. In his promissory estoppel claim, Mr. Fertic asserted that in exchange for $25,000, Mr. Spencer promised to get Mr. Fertic released on a P.R. bond or a low set bond, promised to recover Mr. Fertic's truck from evidence without any additional money, promised that all charges would be acquitted within six months, and promised that Mr. Fertic would receive medical treatment until he was bonded out. On June 10, 2005, Mr. Spencer filed a motion for no-evidence and traditional summary judgment. The trial court conducted a hearing on the summary judgment motion on June 30, 2005 and subsequently granted the motion. Mr. Fertic now brings this appeal.

In his first issue, Mr. Fertic contends the trial court erred in striking and barring his fact and expert witnesses. We review the trial court's decision with regard to discovery matters for an abuse of discretion. VingCard A.S. v. Merrimac Hospitality Sys., Inc., 59 S.W.3d 847, 855 (Tex.App.-Fort Worth 2001, pet. denied). A trial court abuses its discretion if it acts without reference to any guiding rules and principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). In other words, the reviewing court must determine whether the trial court's action was arbitrary or unreasonable. See id. at 242.

On March 10, 2005, the trial court conducted a hearing on Mr. Spencer's Motion to Compel Disclosure or In the Alternative to Strike Expert and Fact Witnesses.¹ At the hearing, Mr. Spencer's counsel asserted that as of that date, his client had not received the information required under the requests for disclosure, including legal theories asserted, calculation of economic damages, and identification of fact or expert witnesses. Mr. Fertic stated that he had already given Mr. Spencer a witness list, which appeared to be individual names on a two-page subpoena request form. As a result of the March 10 hearing, Mr. Fertic was given thirty days to provide responses to Mr. Spencer's discovery requests.

On April 13, 2005, the trial court conducted a second hearing on the matter.² At that hearing, Mr. Spencer's counsel acknowledged receipt of Mr. Fertic's subpoena list on March 31, but argued that it did not satisfy the requirements of Texas Rule of Civil Procedure 194.2 pursuant to the court's order. Specifically, Mr. Spencer's counsel pointed out that Mr. Fertic's subpoena list did not designate the individuals listed as either fact or expert witnesses, did not give a brief statement of how each identified person was connected with the case, and did not provide any information about what Dr. Cyril Wekt was going to testify to or in what area he was going to serve as an expert witness. Mr. Spencer's counsel represented that he informed Mr. Fertic of the deficiencies in his responses, namely that the response was a three page subpoena list with names of individuals, without designation as expert or fact witnesses or any statement as to their connection to the case. Mr. Fertic stated that he tried to the best of his knowledge to comply with the discovery request. Mr. Fertic readily admitted that he did not fully comply with the requested disclosures and instead provided only names, telephone numbers, and addresses. The trial court agreed that Mr. Fertic had failed to comply with the discovery requests sent out eight months ago nor had he remedied the issue within the thirty days provided in the court's previous order. By the court's March 10 order, it granted Mr. Spencer's motion to strike and bar testimony from expert and fact witnesses who were not properly disclosed in response to the requests for disclosure.³

On appeal, Mr. Fertic argues that the trial court erred because, contrary to Mr. Spencer's assertions, he provided adequate responses to Mr. Spencer's Requests for Disclosure on March 31. Mr. Fertic has attached his response to the disclosure request to his brief as an appendix, however, this document is not contained in the appellate record. Mr. Fertic argues that the trial court's act was highly prejudicial and not warranted under the circumstances.

Exclusion of a witness for a party's failure to timely or properly designate a witness is a sanction available to the trial court. See TEX.R.CIV.P. 193.6. Pursuant to TEX.R.CIV.P. 215.2, a trial court may, after notice and hearing, impose sanctions authorized by subparagraphs (1)-(8) of Rule 215.2(b). See TEX.R.CIV.P. 215.3. The enumerated sanctions include prohibiting a party from introducing designated matters in evidence. See TEX.R.CIV.P. 215.2(b)(4).

The sanction imposed, however, must be just. See TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 917 (Tex.1991). In determining whether imposition of a sanction is just, the reviewing court must first determine whether a direct relationship exists between the offensive conduct and the sanction imposed. Id. In other words, a just sanction must be directed against the abuse and toward remedying the prejudice caused the innocent party. Id. Second, the reviewing court must consider whether the sanction imposed is excessive — the punishment must fit the crime. Id. A sanction imposed for discovery abuse should be no more severe than necessary to satisfy its legitimate purposes. Id.

It appears from the record that Mr. Fertic's failure to properly comply with the requests for disclosure was due to his misunderstanding of the law as a pro se litigant. However, at the first hearing and later by letter, Mr. Fertic was instructed on the deficiencies of his discovery responses regarding his fact and expert witnesses. By April 13, Mr. Fertic had failed to comply with the discovery requests for eight months. Mr. Fertic simply failed to heed repeated warnings. We conclude that the sanction imposed was just because there was a direct relationship between Mr. Fertic's deliberate conduct in failing to properly designate his witnesses and the sanction imposed. Further, the sanction imposed was no more severe than necessary to satisfy its legitimate purpose, given the lengthy delay and the pending deadline for the discovery period. Therefore, we cannot conclude the trial court abused its discretion by striking and barring Mr. Fertic's fact and expert witnesses. Issue One is overruled.

In Issue Two, Mr. Fertic complains that he received insufficient notice of the hearing on Mr. Spencer's motion for summary judgment. Mr. Spencer filed his motion for summary judgment on June 10, 2005. The certificate of service on the motion is blank. The summary judgment hearing was held on June 30, 2005. Mr. Spencer's counsel argued that his client had invoked the Mailbox Rule, which allowed service as of the day of drop off in the mailbox, which counsel stated was June 10. Mr. Spencer's counsel reminded the trial court that it had set the hearing on June 30, which gave less than twenty-one days' notice. At the hearing, Mr. Fertic objected to not being served twenty-four days prior pursuant to Rules 166a(c) and 21...