Baluch v. O'DONNELL

763 S.W.2d 8, 1988 Tex. App. LEXIS 2921, 1988 WL 126686
CourtCourt of Appeals of Texas
DecidedSeptember 21, 1988
Docket05-88-00702-CV
StatusPublished
Cited by14 cases

This text of 763 S.W.2d 8 (Baluch v. O'DONNELL) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baluch v. O'DONNELL, 763 S.W.2d 8, 1988 Tex. App. LEXIS 2921, 1988 WL 126686 (Tex. Ct. App. 1988).

Opinions

McCLUNG, Justice.

This is an original proceeding in mandamus. The question before us is whether the district court judge had authority to strike relator’s pleadings pursuant to Rule 215(2)(b) of the Texas Rules of Civil Procedure as sanctions to enforce an order directing the relator to pay interim attorneys’ fees to his spouse’s attorneys.

Abdul R. Baluch, relator (“father”), initiated a voluntary legitimation petition seeking custody of his three-year-old son. The mother, Kyara Marie Victor, after answering the legitimation suit, filed a divorce petition in another district court, which caused the case to be transferred to respondent’s court. Numerous pleadings, motions and hearings have been held on this cause over the past two years which culminated in, among other things, the trial court issuing an order for the father to pay $25,000 in interim attorneys’ fees to the mother’s attorneys by October 1, 1987.

The father failed to pay the fees and the mother’s attorneys filed a motion for sanctions under Rule 215(2)(b). On December 8, 1987 the court granted the motion for sanctions and issued an order which struck all of the father’s pleadings. The mother then filed a motion for summary judgment.1 The father now seeks a writ of mandamus and temporary injunction from this Court to review the December 8th order. The father asks (1) that the order for sanctions be set aside and the trial court be ordered to reinstate his pleadings and (2) that the underlying order awarding interim attorneys’ fees be rescinded.

Ordinarily, relief by mandamus is granted only for void orders when no ordinary, adequate remedy is available on appeal. See Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823 (1961). Generally, mandamus will not issue to control the action of a trial court in a matter of discretion, except [10]*10when it is a proper case to correct a clear abuse of discretion. Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434, 440 (1959). There must be a showing that the court acted in a clear abuse of discretion in excess of the court’s authority or under a duty of law. Proffer v. Yates, 734 S.W.2d 671, 673 (Tex.1987). Likewise, the relator has a heavy burden to show that, if the order was within the discretionary powers of a judge, there was a clear abuse of discretion. Lutheran Social Service, Inc. v. Meyers, 460 S.W.2d 887, 889 (Tex.1970). The relator must establish, under the circumstances of the case, that the facts and law permit the trial court to make but one decision. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985).

The test enunciated for a trial court’s abuse of discretion is whether the trial court acted without reference to any guiding rules and principles, Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), or whether the trial court’s act was arbitrary or unreasonable, Woodruff v. Cook, 721 S.W.2d 865, 868 (Tex.App.—Dallas 1986, writ ref’d n.r.e.).

With these principles in mind, we review the cases interpreting Rule 216 and the imposition of sanctions. A trial court abuses its discretion if the sanction it imposes does not further one of the purposes that discovery sanctions were intended to further. Wyatt v. Shaw Plumbing Co., 736 S.W.2d 763, 767 (Tex.App.—Corpus Christi 1987, writ ref’d n.r.e.). The purposes of discovery sanctions are to: (1) secure the parties’ compliance with the rules of discovery; (2) deter other litigants from violating the discovery rules; and (3) punish parties that violate the rules of discovery. Id.

It is clear from the record before us that this case does not involve the issue of any abuse of discovery. None of the above principles underlying Rule 215 apply, because the father had not abused the discovery process by resisting discovery; instead he failed to obey a court order to pay interim attorney’s fees by a specific date. Since attorney’s fees accrued as other than necessities for a child's support are deemed in the nature of a debt, enforcement of the order by means of contempt was not possible. See Ex Parte Hall, 611 S.W.2d 459 (Tex.Civ.App.—Dallas 1980, no writ). The mother’s attorneys opted to apply for sanctions under Rule 215. Thus, the court clearly was not attempting to apply any of the enunciated purposes of discovery sanctions by striking the father’s pleadings.

A review of the cases concerning the development of discovery sanctions is helpful in determining if the trial court’s order was arbitrary and unreasonable in this case. The predecessors of rule 215(2)(b) were rules 170 and 215a2 which provided sanctions for a party’s refusal to obey a court order for specific discovery production. Under these rules, a trial court could stay a proceeding until the order was obeyed. Harrell v. Fashing, 662 S.W.2d 544, 545 (Tex.Civ.App.—El Paso 1978) (orig. proceeding) (court stayed proceeding until party submitted to mental and physical examinations). However, sanctions under rule 170 were not available for enforcement of a trial judge’s orders made in the course of the actual trial. Tharp v. Blackwell, 570 S.W.2d 154, 159 (Tex.Civ.App.—Texarkana 1978, no writ). The Texas Supreme Court held that rule 170 was only applicable to pre-trial proceedings and was not applicable to, nor authorized, coercive measures for the enforcement of a trial judge’s orders made in the course of a trial. American Central Insurance Co. v. Texhoma Stores, Inc., 401 S.W.2d 593 (Tex.1966) (judge dismissed plaintiff’s cause with prejudice for company’s refusal to produce income tax returns in their entirety).

More recent cases under Rule 215 have held that the trial court abused its discretion when it imposed a $100,000 cost bond against the parties as sanctions for abuse of discovery when they asserted a privilege over the information sought. Smith v. White, 695 S.W.2d 295, 297 (Tex.App.— Houston [1st Dist.] 1985) (orig. proceeding). Likewise, a trial court’s action of imposing sanctions sua sponte when the movant had [11]*11merely filed a motion to compel with no notice of the court’s possible imposition of sanctions was held to be an abuse of discretion. Zep Manufacturing Co. v. Anthony, no. 88-334, 752 S.W.2d 687, 689 (Tex.App.—Houston [1st Dist.] June 9, 1988) (orig. proceeding) (not yet reported) slip. op. at 4. A court’s refusal to grant a party’s motion to compel answers to deposition questions was also considered a clear abuse of discretion. Giffin v. Smith, 688 S.W.2d 112, 114 (Tex.1985).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

in Re: Emeka Aludogbu
Court of Appeals of Texas, 2020
in Re Dana Wayne Andrea
Court of Appeals of Texas, 2018
in the Interest of N.R.C. and L.A.C.
94 S.W.3d 799 (Court of Appeals of Texas, 2002)
In Re NRC
94 S.W.3d 799 (Court of Appeals of Texas, 2002)
Roosth v. Daggett
869 S.W.2d 634 (Court of Appeals of Texas, 1994)
Saxton v. Daggett
864 S.W.2d 729 (Court of Appeals of Texas, 1993)
Stubblefield v. Stubblefield
818 S.W.2d 221 (Court of Appeals of Texas, 1991)
Volunteer Council of Denton State School, Inc. v. Berry
795 S.W.2d 230 (Court of Appeals of Texas, 1990)
D.A. Buckner Construction, Inc. v. Hobson
793 S.W.2d 74 (Court of Appeals of Texas, 1990)
Martin-Matthews Oil Co. v. Berwick Bay Oil Co.
787 S.W.2d 186 (Court of Appeals of Texas, 1990)
Baluch v. Miller
774 S.W.2d 299 (Court of Appeals of Texas, 1989)
Shirley v. Montgomery
768 S.W.2d 430 (Court of Appeals of Texas, 1989)
Baluch v. O'DONNELL
763 S.W.2d 8 (Court of Appeals of Texas, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
763 S.W.2d 8, 1988 Tex. App. LEXIS 2921, 1988 WL 126686, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baluch-v-odonnell-texapp-1988.