Hanley v. Hanley

• Court: Texas Court of Appeals
• Writing for the Court: THOMAS; WHITHAM
• Citation: Hanley v. Hanley, 813 S.W.2d 511 (Tex. App. 1991)
• Decision Date: 01 April 1991
• Docket Number: No. 05-89-01398-CV,05-89-01398-CV
• Parties: Deidre HANLEY, Tara Hanley and Ann Hanley, Appellants, v. Maura HANLEY, Individually and as Executrix of the Estate of Pierce Hanley, Deceased, Appellee.

Page 511

813 S.W.2d 511

Deidre HANLEY, Tara Hanley and Ann Hanley, Appellants, v. Maura HANLEY, Individually and as Executrix of the Estate of Pierce Hanley, Deceased, Appellee.

No. 05-89-01398-CV.

Court of Appeals of Texas Dallas.

April 1, 1991.

Rehearing Overruled June 28, 1991.

Richard N. Countiss, Houston, Shirley Sutherland, Dallas, for appellants.

Clarence A. Guittard, John R. Guittard, Dallas, for appellee.

Before WHITHAM, ROWE and THOMAS, JJ.

OPINION

THOMAS, Justice.

Deidre Hanley, Tara Hanley and Ann Hanley ¹ appeal from the trial court's judgment striking their pleadings and assessing monetary sanctions against them for alleged discovery abuse. In six points of error appellants contend that: (1) the trial court abused its discretion by striking their pleadings; (2) the trial court abused its discretion by assessing $89,000 in monetary sanctions against them; (3) the sanctions imposed violated the Texas and United States constitutions; (4) the trial court erred by refusing to hear their motion for sanctions; (5) the trial court erred by ruling that they had no standing and thus could not participate in the case at the final hearing; and (6) the trial court erred by refusing to allow them to make bills of exceptions. We hold that the trial court abused its discretion by striking appellants' pleadings, dismissing their causes of action, and assessing $89,000 in monetary sanctions. Accordingly, we reverse the trial court's judgment, reinstate appellants' causes of action, and remand the cause for further proceedings consistent with this opinion.

BACKGROUND

Pierce Hanley died in 1987 as a result of injuries he sustained when his vehicle was struck by an automobile driven by Idona Kemp. Appellee, Maura Hanley, Pierce's widow, sued Kemp and Kemp's employer, Telecommunications Marketing, Inc. Appellee's action was brought as executrix of Pierce's estate under the Survival Statute, see TEX.CIV.PRAC. & REM.CODE ANN. § 71.021, and as a rightful beneficiary under the Wrongful Death Statute. See TEX.CIV.PRAC. & REM.CODE ANN. § 71.001-.011. Deidre and Tara, Pierce's adult daughters, and Ann, Pierce's mother, intervened as plaintiffs in appellee's lawsuit. The wrongful death action was settled for $1.6 million, which sum Kemp and Telecommunications paid into the registry of the court. When appellants and appellee were unable to agree on a division of the settlement funds, they began preparations for a jury trial to determine what portion of the settlement each would receive. Prior to trial, the court found that appellants had abused the discovery process. Thereafter, an order was issued striking their pleadings, dismissing their claims with prejudice, and imposing monetary sanctions. The day the judgment was entered, the settlement funds were released to appellee. In a mandamus action, this Court ordered the trial court to vacate its disbursement order and to return the funds to the registry of the court. ² Thereafter, the trial court attempted to require appellants to pay the sanctions and to post a supersedeas bond to cover the full amount of the trial court's judgment, including the $1.6 million being held in the registry of the court. Again, this Court was required to intervene and grant emergency relief. We approved the supersedeas bond previously posted, thereby allowing appellants to proceed while the district clerk retained the funds in the registry of the court.

COMPLAINED-OF CONDUCT

During the course of this litigation, appellee changed attorneys. The discovery disputes involved in this appeal arose after appellee's new counsel, Lawrence Friedman, sent deposition notices to Shirley Sutherland, appellants' counsel. The notices scheduled oral depositions for appellants on April 17. Apparently an agreement was reached between the attorneys that appellants would appear for the depositions if Friedman would make specific witnesses available on the same date. This agreement was confirmed by letters between the attorneys. At the same time Sutherland attempted, without success, to obtain an agreement to have Ann's deposition taken in Scottsdale, Arizona, where Ann was at the time. Sutherland then informed Friedman that she had decided not to produce appellants for the April depositions and instead filed a motion for protective order on April 12. Sutherland's motion requested that Deidre's and Tara's depositions be quashed because they had already been deposed at length and no new evidence had developed; therefore, it was alleged that the second depositions were burdensome, harassing, and unnecessary. The motion further asked that Ann's deposition be postponed and moved to Falls Church, Virginia, the place of her residence, on the basis that she was elderly and unable to easily travel.

A hearing on Sutherland's motion and other related matters was held on April 19 before a visiting judge. ³ One order arising out of this hearing provided that all parties were to respond to the outstanding written discovery requests by April 21 and further extended the discovery cutoff deadline until the time of trial. A second order signed April 26 provided in relevant part:

IT IS FURTHER ORDERED that [appellants be produced] for deposition on May 1, 1989, at 10:00 a.m. in the offices of [Appellants' counsel].

IT IS FURTHER ORDERED that all counsel who attended the previous depositions of Deidre Hanley and Tara Hanley not repeat questions previously asked and answered, and shall only be entitled to examine the witnesses as to matters not previously covered.

IT IS FURTHER ORDERED that all counsel who did not attend the previous depositions of Deidre Hanley and Tara Hanley, or who reserved their right to question the witnesses at a future date not be limited in the scope of their inquiry.

Dealing first with Ann, it is undisputed that she did not appear for the court-ordered deposition scheduled for May 1. While the trial court's order cites a number of discovery abuses, it is apparent that the trial court struck Ann's pleadings solely because she failed to appear for the deposition. The following exchange in the opening minutes of the sanctions hearing demonstrates this point:

FRIEDMAN: The point is that there was a court order ... that required these three [appellants] to show up for deposition without filing a motion for protective order or a motion for reconsideration. Ann Hanley did not show up as ordered by the [c]ourt on the 1st of May. Also it was ordered that by--

THE COURT: The [c]ourt will strike her cause of action....

* * * * * *

THE COURT: No, sir. I'm talking about Ann Hanley. By failing to appear at her deposition as ordered ..., the [c]ourt deems it appropriate. Since she failed to appear at her deposition and did not seek protection, the [c]ourt rules it appropriate to strike the cause of--her pleadings and strike her cause of action, as to Ann Hanley.

Deidre and Tara did appear for their depositions at the designated time. During Deidre's deposition, which lasted approximately nine-and-one-half hours, Sutherland repeatedly objected to Friedman's questions. The primary dispute between the attorneys concerned the meaning of the April 26 written order and whether it correctly reflected the trial court's ruling. The following docket sheet notation was made by the visiting judge:

4/19/89 Motion for Protective Order--Granted if [appellee's] attorney did not reserve questions to time of trial. If he did, then [appellee's] new attorney has open right to depose. Otherwise limited to areas not covered by prior depo[sition]. Other parties' attorney limited to areas not covered in prior depo[sition].

(Emphasis in original.) It is undisputed that Deidre and Tara had been deposed once in connection with this litigation and that appellee's prior attorney attended those depositions. The record further reflects that he did not reserve the right to question Deidre or Tara. It is also undisputed that Friedman was not representing appellee at that time and, thus, was not involved in the first depositions. Friedman interpreted the written April 26 order as allowing him to question Deidre and Tara on all matters, including those covered at the previous depositions. Sutherland, on the other hand, maintained that the signed order was not in conformity with the visiting judge's ruling and that Friedman was limited to the areas not covered by the prior deposition. During one of several argumentative exchanges between the attorneys, the following statements were made:

FRIEDMAN: Are you going to allow your client to answer these questions[?]

SUTHERLAND: I will allow her to answer anything that's not been previously asked in other depositions.

FRIEDMAN: In other words, you're going to ignore the court's order.

SUTHERLAND: I'm going to ignore the order that you drafted, sir, that no other attorney at the hearing agreed with. Every other attorney agreed that you were only to go into new matters except you. You drafted the order incorrectly.

FRIEDMAN: Ms. Sutherland, are you going to abide by this [c]ourt's order or shall we adjourn this deposition?

SUTHERLAND: I'm not going to go by the order that you drafted.

FRIEDMAN: Are you going to abide by the order that [the visiting judge] signed?

SUTHERLAND: Not by the order you drafted, no sir, and neither are my clients.

Apparently this same conflict occurred during Tara's deposition. Because of Sutherland's insistence that her clients would not answer certain questions, Friedman decided to stop the depositions and to file a motion in order to obtain a ruling on what questions could be asked.

Friedman filed a pleading entitled motion to compel, to strike, for sanctions, and for citation for contempt. He contended that appellants had been guilty of dilatory tactics and abuse of the discovery process in that: (a) Ann did not appear for the deposition; (b) Deidre and Tara refused to cooperate and answer questions during their depositions; (c) the interrogatories were not...