Ramirez v. Otis Elevator Co.

Citation837 S.W.2d 405
Decision Date11 August 1992
Docket NumberNo. 05-91-00589-CV,05-91-00589-CV
PartiesAlicia RAMIREZ, Appellant, v. OTIS ELEVATOR COMPANY, Appellee.
CourtCourt of Appeals of Texas

Michael A. Robertson, Grand Prairie, for appellant.

Laurie Kratky Dore, Austin, Richard F. Werstein, Dallas, for appellee.

Before BAKER, CHAPMAN and WIGGINS, JJ.

OPINION

BAKER, Justice.

Alicia Ramirez appeals from a take-nothing judgment the trial court rendered for Otis Elevator Company on the jury's verdict. Ramirez contends the trial court abused its discretion in failing: (1) to strike Otis's pleading as a discovery sanction; and (2) to grant a new trial because of the discovery of material evidence during the trial. Ramirez also claims the trial court erred by not granting her a new trial because the jury's zero answer to the damage question was against the great weight and preponderance of the evidence. We find these points without merit. We affirm the trial court's judgment.

FACTUAL BACKGROUND

Alicia Ramirez was a waitress at the Loews Anatole Hotel. On June 27, 1986, Ramirez's supervisor told her to retrieve napkins from a cart inside a freight elevator. As Ramirez went into the elevator under the elevator's descending gate, the gate fell and struck her. She suffered back injuries.

In November 1986, Ramirez sued Otis, the company that manufactured and serviced the freight elevator. Ramirez alleged Otis defectively designed and manufactured the elevator. In June 1987, Ramirez sent Otis requests for production. She sought any documents about repair, inspection, or maintenance work performed on the elevator before and after the accident. Otis objected to the requests as irrelevant because Ramirez had not alleged negligent repair or maintenance.

Ramirez amended her pleadings to include claims of negligence and gross negligence. She alleged Otis defectively or negligently designed and manufactured the placement of the elevator's control panel. She alleged the gate's warning bell did not sound and a "safety shoe" did not reverse the gate automatically after it struck her. In response to Ramirez's discovery requests Otis produced documents known as "Callback, Rope and Repair Reports," which were Otis's permanent record of repair and maintenance work performed on elevators under maintenance contracts. Otis also produced an "Index of Orders," which concerned elevator work not covered by a maintenance contract.

THE TRIAL

Trial began July 20, 1990. Four days into the trial, Ramirez learned during testimony of an Otis employee that Otis's repairmen wrote up "time tickets" and gave them to Otis. The trial court ordered Otis to produce and deliver the time tickets to Ramirez. Otis also produced complete "Otisline" callback records from part of 1986 to the time of trial. However, Otisline records for the twelve months before the accident were not available because an employee had accidentally deleted them from Otis's computer database.

Ramirez orally moved for sanctions against Otis. Otis, in response, urged the court to (1) let Ramirez bring the records in front of the jury, (2) let Ramirez have several days to review the records, or (3) declare a mistrial, giving Ramirez an opportunity to review the records. The intervenor, the insurance company that paid Ramirez's workers' compensation benefits, objected to declaring a mistrial. Ramirez also objected to a mistrial. Ramirez insisted the court strike Otis's pleadings, render a default judgment, and allow Ramirez to go to the jury on damages only. Ramirez also argued three days' time was not enough to analyze the records. The trial court stated it would hold the motion for sanctions under advisement. The court gave Ramirez from noon on Thursday until the following Monday to review the records.

On Monday, at a hearing on the motion for sanctions, Ramirez continued to insist the trial court strike Otis's pleadings and submit the case to the jury on damages only. Ramirez argued this was the only proper remedy because the evidence showed Otis destroyed the preaccident Otisline records during the suit's pendency. Otis moved for a continuance to give Ramirez more time to review the records and the court more time to consider another issue. 1 The trial court denied Ramirez's motion to strike Otis's pleadings and Otis's motion for continuance. The trial court deferred further consideration of discovery sanctions until after the jury verdict. The trial court allowed Ramirez to argue to the jury that Otis had destroyed the Otisline documents. The trial court instructed the jury:

A party is entitled to show that the opposing party has destroyed documents that would bear on a crucial issue in the case. Since the destruction of relevant evidence raises a presumption that the evidence would have been unfavorable to the spoliator or the one destroying the document. I will take judicial notice of that.

The jury returned a verdict for Otis. The jury found that no manufacturing defect existed in the elevator when it left Otis's control and that Otis was not negligent. The jury also found Ramirez sustained no monetary damages.

Ramirez moved for sanctions and for a new trial based on the alleged discovery abuses. Ramirez again urged the court to strike Otis's pleadings, render a default judgment on liability, and grant a new trial on damages. Ramirez alternatively asked the court to assess monetary sanctions, grant a new trial, or assess court costs against Otis. The court's final judgment assessed court costs against Otis but ordered Ramirez take nothing from Otis. Ramirez moved for new trial, alleging the court abused its discretion in failing to render appropriate sanctions.

DID THE TRIAL COURT FAIL TO APPROPRIATELY SANCTION OTIS?
A. Ramirez's Contentions

In her first point of error, Ramirez contends the trial court abused its discretion because it did not strike Otis's pleadings as a discovery sanction for concealing and destroying evidence Ramirez sought during discovery. Ramirez contends she learned on the fourth day of the trial that Otis had concealed service tickets that described work performed by Otis employees on the elevator at the hotel. When ordered to do so by the court, Otis produced these records within hours. Ramirez claims her attorneys had to examine more than 43,000 pages of records to sift out those that were relevant. Ramirez argues there was no time or opportunity to have her expert review the documents.

Ramirez also learned that an employee in Otis's Connecticut office deleted Otis's computer database records for the time sheets on repairs for the elevator at the hotel from Otis's system.

Ramirez contends the destruction of these records deprived her of the opportunity to locate witnesses to corroborate her evidence that safety measures on the elevator had malfunctioned on previous occasions. Ramirez urged the trial court to strike Otis's pleadings and to submit the case to the jury on damages only. She argued this was the only proper remedy because the evidence showed Otis destroyed the preaccident records while the suit was pending. She complains the trial court abused its discretion by not striking Otis's pleadings.

B. Otis's Response

Otis contends that it timely responded to court orders for discovery before trial. Otis contended at trial that the records it had not produced were time tickets rather than repair tickets. Otis claims it showed that these time tickets were intended as weekly payroll records. Otis asserted that the description of any work performed by employees was coincidental and duplicative of other records. When ordered by the trial court, Otis produced the time tickets for Ramirez during the trial. Otis notes the trial court allowed Ramirez from noon on Thursday until the following Monday to examine the records.

Otis claims it also showed that the deletion of the repair records data before the date of Ramirez's accident was inadvertent. Otis showed it was a premature tape erasure by clerical personnel in Connecticut. Otis maintained the clerk accidentally performed the deletion while following an automatic data retention policy. Otis argued the deletion was not connected with any of Ramirez's allegations in the suit. Otis argues that it was not dilatory in its discovery responses and that any of its actions were in good faith and inadvertent.

C. Discovery Sanctions--Standard of Review

A trial court may impose sanctions on any party who abuses the discovery process. Bodnow Corp. v. City of Hondo, 721 S.W.2d 839, 840 (Tex.1986) (per curiam); Hanley v. Hanley, 813 S.W.2d 511, 516 (Tex.App.--Dallas 1991, no writ); TEX.R.CIV.P. 215. 2 The trial court's imposition of discovery sanctions are within that court's discretion. We set aside that decision only upon a showing of clear abuse of discretion. Koslow's v. Mackie, 796 S.W.2d 700, 704 (Tex.1990).

The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present a proper case for the trial court's action. Rather, it is a question of whether the court acted without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986); City of Dallas v. Cox, 793 S.W.2d 701, 706 (Tex.App.--Dallas 1990, no writ). Stated otherwise, we determine whether the trial court's act was arbitrary or unreasonable. Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 443 (Tex.1984); Tate v. Commodore County Mut. Ins. Co., 767 S.W.2d 219, 222 (Tex.App.--Dallas 1989, writ denied).

In determining discovery sanctions, a trial court may consider the entire record and all the offending party's conduct during the litigation. Larson v. H.E. Butt Grocery Co., 769 S.W.2d 694, 696 (Tex.App.--Corpus Christi 1989, writ denied). Because a trial court decided a matter within its discretionary authority in a way different from that in which an appellate...

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