COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-02-450-CV
DOROTHY
FETHKENHER APPELLANT
V.
THE
KROGER CO. APPELLEE
------------
FROM
THE 355TH DISTRICT COURT OF HOOD COUNTY
OPINION
I. Factual and
Procedural Background
An
automatic door struck Appellant Dorothy Fethkenher as she was exiting a Kroger
store in Granbury, Texas on September 13, 1999. Appellant reported the
incident to Kroger and went home, where she treated injuries to her head, right
hand, and right arm with ice and over-the-counter pain medicine. The
following day, Appellant went to a hospital emergency room, seeking medical
attention for pain and swelling in her right hand and arm. After x-rays
revealed no broken bones, the emergency room doctor referred Appellant to an
osteopathic doctor, who in turn referred her to a physical therapist. When
Appellant’s condition did not improve with therapy, she sought a second
opinion from Dr. Robert Protzman, an orthopedic surgeon. After a course of
more conservative treatment failed, Appellant underwent three separate surgeries
to eliminate pain and other problems, including ulnar nerve surgery on both her left
and right arms and endoscopic carpal tunnel release on her right wrist.
Appellant
sued Appellee The Kroger Co. for negligence seeking damages for the cost of
medical care, pain and suffering, impairment, and disfigurement. Appellee
denied liability and alleged a number of defenses to Appellant’s claims.
In connection with the suit, Appellant sent Kroger an interrogatory that
included a request that Kroger describe “any previous incidents pertaining to
automatic door malfunction at The Kroger Co. stores during the last ten (10)
years, from 1989 through 1999.” Appellee, noting that it operates over
2,500 grocery stores in more than thirty states, objected to this request as
being overly broad, unduly burdensome, and not reasonably calculated to lead to
the discovery of admissible evidence. Appellee confirmed, however, that it
had no knowledge of any incidents involving the doors at the Granbury store in
the two years prior to Appellant’s incident. Appellant filed a motion to
compel, asking the trial court to order more complete responses to her discovery
requests.
At
the hearing on Appellant’s motion, Appellee argued that because it had a
two-year document retention policy, it was not possible to produce information
for the last ten years. The trial court limited Appellant’s request and
ordered Appellee to produce documents related only to the particular door at the
store where the incident occurred for the period dating back to the installation
of the doors, approximately three or four years. In response, Appellant
asked the trial court to consider modifying the discovery order to include all
of the doors in Appellee’s southwest region rather than only the door in
question. The trial court declined to expand the discovery order to the
188-store region and reiterated Appellee’s obligation to produce documents
relating only to the specific door involved in the incident.
Throughout
this case, the parties’ attorneys demonstrated an acrimonious working
relationship and an inability to conduct discovery without court
intervention. The record is replete with accusatory letters from both
sides, three motions to compel, and five separate motions for sanctions—two
from the Appellant and three from the Appellee. On September 27, 2002,
Appellee filed its second motion for sanctions against Appellant’s counsel
under Texas Rules of Civil Procedure 215.1 and 215.2. Claiming several
justifications for the imposition of sanctions, Appellee asked the court to fine
Appellant’s counsel $2,967.25. Appellee’s motion for sanctions requested
relief based on allegations that Appellant’s counsel:
1)Refused
to produce Appellant for deposition.
2)Refused
to attempt an agreed proposed order regarding the trial court’s rulings on a
previous motion to compel.
3)Refused
to non-suit a Kroger store manager that did not work at the Granbury store at
the time of the incident, as previously promised by Appellant’s attorney.
4)Refused
to confer on Appellee’s motion to compel. Specifically, Appellant’s counsel
failed to respond to two letters asking for supplemental discovery responses.
Appellee
attached numerous exhibits to the motion consisting primarily of correspondence
between the parties’ attorneys. Appellant’s response, filed on October
7, 2002, notified the court that her deposition was noticed by Appellee for
October 15, 2002.
At
the hearing on the motion, Appellee urged the court to sanction Appellant’s
counsel for the reasons set forth in the sanctions motion as well as for new
allegations. According to Appellee, Appellant’s counsel misrepresented
that she was subject to a trial setting in Dallas County that conflicted with
the sanctions hearing in Hood County. Appellee informed the court that she
called the court in Dallas County to confirm the conflict and discovered that
Appellant’s counsel was not, in fact, called to trial. Claiming a lack
of candor to the court and opposing counsel, Appellee increased its request for
sanctions to $5,000.
Appellant’s
counsel informed the trial court that the court in Dallas County notified her
that she was on one-hour standby to appear at trial. As explained by
Appellant’s counsel, the Dallas court has a list of cases that are to be heard
during a given week, and all cases on that list are on standby. Even
though a case from the prior week was carried over, the court’s instruction
that Appellant’s counsel remain on one-hour standby did not change. The
trial court granted Appellee’s motion “as a result of the various activities
as set forth in the motion and as developed through the letters that are before
the court,” and ordered $1,500 in sanctions.
A
trial was held on the merits of Appellant’s case in November 2002. Garry
DeLong, the store manager, testified at length about the doors. He
explained that the doors appeared to be functioning normally immediately before
and after the incident. DeLong attempted to get the door to improperly close
again, but was unable to recreate the incident. With the help of a door
repairman, DeLong again attempted to recreate the incident to no avail.
According to DeLong, the repairman did not discover any malfunction and
consequently did not make repairs to the door. Gail Maples, the former
front-end manager, and Betty Jean Daughrity, the current front-end manager,
testified that no one ever reported any previous problems regarding the doors
closing on people. Several repair records and work orders admitted into
evidence showed no problems of a similar nature that would cause the doors to
improperly shut on people.
At
the close of evidence, the jury was charged with determining whether the
negligence of either or both parties proximately caused the occurrence.
The jury charge included the following additional instructions:
An
owner or occupier of a premises is not an insurer of the safety of its invitees.
An
occurrence may be an “unavoidable accident,” that is, an event not
proximately caused by the negligence of any party to it.
.
. . .
In
order to establish that THE KROGER CO. “reasonably should have known of the
danger[,]” there must be some proof of how long the hazard existed prior to
the incident in question.
The
jury returned a verdict in favor of Appellee and the trial court rendered a
take-nothing judgment against Appellant. In three issues, Appellant argues
that the trial court erred: 1) in limiting her discovery regarding other
automatic door-related injuries at Kroger stores; 2) in allowing unnecessary
jury instructions that constituted impermissible comments on the weight of the
evidence; and 3) in sanctioning Appellant’s counsel. We affirm in part
and reverse and render in part.
II. Discussion
A.
Discovery
In
her first issue, Appellant contends that the trial court erred in limiting her
discovery regarding automatic doors to only the door involved in the accident
because she was entitled to information pertaining to all automatic doors in
every Kroger store over a ten-year period, as she requested in her
interrogatory. We review discovery rulings for an abuse of discretion. In
re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (orig. proceeding). A
trial court abuses its discretion when it acts without reference to guiding
rules and principles. In re Colonial Pipeline Co., 968 S.W.2d 938,
941 (Tex. 1998) (orig. proceeding). Although the scope of discovery is
broad, it is limited by the legitimate interests of the opposing party to avoid
overly broad requests, harassment, or disclosure of privileged information. In
re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex. 1998) (orig.
proceeding). A central consideration in determining overbreadth is whether
discovery requests could have been more narrowly tailored. CSX, 124
S.W.3d at 153. Discovery may not be used as a fishing expedition or to
impose unreasonable expenses on the opposing party. K Mart Corp. v.
Sanderson, 937 S.W.2d 429, 431 (Tex. 1996) (orig. proceeding).
The
discovery request at issue, Appellant’s interrogatory, asked Appellee to
describe, in detail, any previous incidents pertaining to automatic door
malfunctions at over 2,500 Kroger stores during the preceding ten years.
The Texas Supreme Court has, on many occasions, held that requests like this are
overly broad as a matter of law. CSX, 124 S.W.3d at 153 (stating
that request to identify all safety employees who worked for defendant over a
thirty-year period qualifies as a “fishing expedition”); K Mart, 937
S.W.2d at 431 (holding that request for information relating to all criminal
activity on all K Mart property over last seven years was overbroad); Dillard
Dep’t Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995) (orig.
proceeding) (stating that a 227 store search in twenty states for documents over
a five-year period is overly broad as a matter of law). Although
Appellant’s request to narrow her scope of discovery to the 188 stores in
Kroger’s southwest region significantly reduced her original request for
information regarding over 2,500 stores, Appellant failed to narrow the request
in a manner that would heighten its relevancy. Appellant did not tailor
her discovery to a particular type of door or sensor or even a particular manner
of malfunction, which might have made it easier to establish that the request is
reasonably calculated to lead to the discovery of admissible evidence. As
written, Appellant’s request appears to be a “fishing expedition” for
information regarding potential problems with automatic doors in general.
Furthermore,
Appellant’s request is unduly burdensome. Texas discovery rules
encourage trial courts to limit discovery when the burden or expense of the
proposed discovery outweighs its likely benefit, taking into account the needs
of the case, the amount in controversy, the parties’ resources, the importance
of the issues at stake in the litigation, and the importance of the proposed
discovery in resolving the issues. In re Alford Chevrolet-Geo, 997
S.W.2d 173, 181 (Tex. 1999) (orig. proceeding) (citing Tex. R. Civ. P. 192.4(b)). Appellee
provided the affidavit of Georgia Waitkus, a claims specialist in its risk
management department, which stated that it would take between 376 and 564 hours
of manpower to gather information for just one of its seventeen regional
divisions. Recognizing that the scope of discovery is largely within the
discretion of the trial court, we conclude that the trial court did not abuse
its discretion in limiting Appellant’s request to the door in question over a
three or four-year period. See CSX, 124 S.W.3d at 152. We overrule
Appellant’s first issue.
B.
Jury Instructions
Appellant,
in her second issue, argues that the trial court’s jury charge included
unnecessary and impermissible instructions to the jury. We review a jury
charge under an abuse of discretion standard. In re J.T.G., 121 S.W.3d
117, 128 (Tex. App.—Fort Worth 2003, no pet.). Pursuant to the Texas
Rules of Civil Procedure, a trial court is required to submit “such
instructions and definitions as shall be proper to enable the jury to render a
verdict.” Tex. R. Civ. P.
277. Trial courts are afforded considerable discretion in deciding what
instructions are necessary and proper in submitting issues to the jury. State
Farm Lloyds v. Nicolau, 951 S.W.2d 444, 451 (Tex. 1997). For an
instruction to be proper, it must (1) assist the jury, (2) accurately state the
law, and (3) find support in the pleadings and the evidence. Tex.
Workers' Comp. Ins. Fund v. Mandlbauer, 34 S.W.3d 909, 912 (Tex. 2000).
Error
in a jury charge is reversible only if it probably caused the rendition of an
improper judgment or probably prevented the appellant from properly presenting
the case on appeal. In re D.I.B., 988 S.W.2d 753, 756 & n.10
(Tex. 1999); see Tex. R. App. P.
44.1(a). To preserve a complaint premised on the jury charge for appellate
review, a party must point out distinctly the objectionable matter and the
grounds for the objection. Tex. R. Civ. P. 274. The test for
preservation of a jury charge complaint is whether the party made the trial
court aware of the complaint, timely and plainly, and obtained a ruling. Tex. R. App. P. 33.1(a); see State
Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex.
1992) (op. on reh’g).
1.
“Not an insurer” instruction
Appellant
first challenges the trial court’s jury instruction that an owner or occupier
of a premises is not an insurer of the safety of its invitees, arguing that it
constituted an improper comment on the weight of the evidence. At trial,
Appellant objected to the “owner is not an insurer” instruction as follows:
We
object to, I guess, the instruction an owner or occupier of the premises not an
[i]nsurer of the safety of its invitees -- that is taken from the Reese case,
and it’s a -- I mean, the Texas Supreme Court case where they are just saying
where there is a third party who has been negligent -- that obviously the
occupier of premises not an [i]nsurer of the safety of its invitees, it is not
intended and [is not] to be used as pattern jury charges for the jury. It’s
for appellate purposes for the general rule as far as premises liability. It’s
never been, to my knowledge, used in a premise case as far as a charge to the
jury.
Appellee
contends that Appellant’s objection on appeal that the instruction is an
improper comment on the weight of the evidence differs substantially from the
objection she made at trial.
Although
the Texas Supreme Court has held that we should concern ourselves with common
sense and refrain from promoting form over substance, objecting parties must
nevertheless make the trial court aware of the complaint, timely and
plainly. Payne, 838 S.W.2d at 241. In Willis v. Donnelly,
Houston’s Fourteenth Court of Appeals addressed the Willises’ objection to
the trial court’s instruction that a fiduciary duty existed because the
existence of a fiduciary duty is a question of fact for the jury. 118
S.W.3d 10, 33-34 (Tex. App.—Houston [14th Dist.] 2003, no pet.). In that
case, the Willises objected to the instruction for two reasons. Id.
at 33. First, that there was no evidence to support the submission of the
issue. Id. Second, that as a matter of law, there was no
fiduciary duty. Id. The court concluded that the Willises’
objections were insufficient to alert the trial court that the existence of a
fiduciary relationship was a fact question for the jury and held that any error
in the jury charge was not preserved. Id. at 34.
Here,
Appellant objected to the “not an insurer” instruction on two grounds—that
it is an incorrect statement of the law and that it is not intended as a pattern
jury charge. Appellee points out that Appellant did not refer to the
instruction as a “comment” or as affecting the weight of the evidence, nor
suggest it might improperly persuade, nudge, or prejudice the jury. Thus,
Appellee argues, the trial court likely understood Appellant’s objection as
being that the instruction was an incorrect statement of the law and not
intended as a pattern jury charge. We agree. Appellant’s
objections did not serve to make the trial court aware of her complaint that the
instruction is an impermissible comment on the weight of the evidence and she
therefore waived her right to raise this issue on appeal. See id.; see
City of Weatherford v. Catron, 83 S.W.3d 261, 272 (Tex. App.—Fort Worth
2002, no pet.); El Paso Refining, Inc. v. Scurlock Permian Corp., 77
S.W.3d 374, 386 (Tex. App.—El Paso 2002, pet. denied) (op. on reh’g).
2. “Unavoidable
Accident” Instruction
Appellant
additionally challenges the trial court’s instruction that, “[a]n occurrence
may be an ‘unavoidable accident.’” An unavoidable accident is “an
event not proximately caused by the negligence of any party to it.” Reinhart
v. Young, 906 S.W.2d 471, 472 (Tex. 1995); Tanner v. Karnavas, 86
S.W.3d 737, 740 (Tex. App.—Dallas 2002, pet. denied). The purpose of an
unavoidable accident instruction is to ensure that jurors will understand that
they do not necessarily have to find that one of the parties is to blame for the
occurrence. Reinhart, 906 S.W.2d at 472. The instruction is
proper only when there is evidence that the event was proximately caused by a
nonhuman condition and not by the negligence of any party to the event. Hill
v. Winn Dixie Tex., Inc., 849 S.W.2d 802, 803 (Tex. 1992). It
is most often used to inquire about the causal effect of some physical condition
or circumstance such as fog, snow, sleet, wet or slick pavement, or obstruction
of view. Reinhart, 906 S.W.2d at 472. When there is no evidence
that the accident was caused by some such peculiar circumstance, submission of
the instruction is generally improper. See Hicks v. Brown, 136 Tex. 399,
151 S.W.2d 790, 792 (1941). The Texas Supreme Court has stated that courts
should refrain from submitting an unavoidable accident instruction due to the
risk that the instruction will confuse or mislead the jury. Reinhart,
906 S.W.2d at 472; Hill, 849 S.W.2d at 803. In fact, several
justices have expressed that they would like to see the instruction all together
abolished in Texas. See Reinhart, 906 S.W.2d at 477 (Enoch, J.
concurring); see also id. at 477-78 (Hightower, J. dissenting, joined by
Cornyn, J. and Gammage, J.).
Appellant
objected to the unavoidable accident instruction at trial as an improper comment
on the weight of the evidence, stating:
I
believe that is a comment on the evidence because basically, Your Honor, you are
asking whether or not the negligence of any of those named below caused the
incident. If not, then they would answer so.
But
to also express the occurrence may be an unavoidable accident that is not caused
by the negligence of any party, I believe, is a comment on the evidence.
In
her appellate brief, Appellant states that an unavoidable accident instruction
is disfavored “because of the message it sends to the jury” and “it
essentially tells the jury that the event in question is nobody’s
fault.” Appellee claims that Appellant waived this complaint because it
differs from her objections at trial. As characterized by Appellee,
Appellant’s argument on appeal is that the instruction is unsupported by the
evidence, rather than that the instruction was an improper comment on the weight
of the evidence. Thus, according to Appellee, Appellant cannot, for the
first time on appeal, argue that the instruction is not supported by the
evidence because her objection at trial did not plainly make the trial court
aware that this was her objection.
A
review of Appellant’s brief leads us to conclude that Appellant’s argument
on appeal is that the unavoidable accident instruction was an impermissible
comment on the evidence because the instruction was unsupported by the
evidence. Furthermore, the cases cited by Appellant in support of her
argument address unavoidable accident instructions that constitute impermissible
comments on the weight of the evidence because they are unsupported by the
evidence. See Lemos v. Montez, 680 S.W.2d 798, 801 (Tex. 1984); Otis
Elevator Co. v. Shows, 822 S.W.2d 59, 61 (Tex. App.—Houston [1st Dist.]
1991, writ denied). Thus, we conclude that Appellant’s objections do not
differ from her complaints on appeal, and we will address her complaint.
An
extensive review of the record reflects that there is no evidence that the
automatic door’s malfunction was proximately caused by a nonhuman event.
See Hill, 849 S.W.2d at 803. Appellee argues that it produced
sufficient evidence to support the instruction, relying solely on the following
testimony of Robert Hamilton, Appellee’s assistant risk manager:
Q.
[Appellee’s attorney] Is the door supposed to close on customers?
A.
I don’t think it’s designed to do that, no. I know I get pages on my pagers
sometimes that don’t have numbers and have hieroglyphics, and I don’t think
there’s anything necessarily faulty with my pager. I think it’s more of an
electronic anomaly. I know and I have heard of that from time to time. The [sun]
can cause havoc with sensors, and there’s reflection off of windshields, off a
piece of jewelry or whatever. . . . If there is some [type] of glitch in the
electricity supplied at a door, that could cause something to go. I don’t
think that’s, again, a malfunction necessarily of the door. I think there’s
sometimes outside interference factors.
Q.
Do you know of any outside interference factors in this particular case on
September 13th, 1999?
A.
No.
Appellee,
during closing argument, again identified plausible causes for the door’s
malfunction that might be construed as nonhuman events, including a “bleep in
the electricity supply” and a reflection off of a windshield. Although
these theories regarding the door’s malfunction might be construed as nonhuman
events, Appellee did not provide any affirmative evidence whatsoever that the
door’s malfunction was proximately caused by any of these theories. In
the absence of any affirmative evidence, we conclude that the instruction
regarding unavoidable accidents was improper. See Hill, 849
S.W.2d at 803. Having concluded that the unavoidable accident instruction
was improper, we must now address whether the trial court committed reversible
error.
Error
in the jury charge is reversible only if, in light of the entire record, it
probably caused the rendition of an improper judgment or probably prevented
Appellant from properly presenting her case to the court of appeals. Tex. R. App. P. 44.1(a). Appellant
relies on Urista v. Bed, Bath, & Beyond, Inc., to support her
contention that the trial court’s inclusion of the unavoidable accident
instruction was reversible error. No. 01-02-00150-CV, 2004 WL 306009 (Tex.
App.—Houston [1st Dist.] Feb. 19, 2004, no pet.) (op. on reh’g). In
that case, the jury was charged with a general negligence question accompanied
with an unavoidable accident instruction identical to the one given in the case
at hand. Id. at *1. On appeal, the majority held that
because there was nothing in the record supporting an unavoidable accident, the
instruction was improper. Id. at *3. In concluding that the
error was reversible, the court questioned the sufficiency of the evidence in
support of the verdict and specifically noted two factors that affected its
decision. Id. at *4. First, the court remarked that the
defendant’s reliance on an “accidents happen” theory during trial likely
caused the jury to be influenced by the erroneous instruction, which
specifically mentions accidents. Id. Second, the court
recognized that two jurors would not have found the defendant guilty of
negligence and noted that “[a]n incorrect instruction is especially likely to
cause reversible error when the evidence is conflicting and the issues hotly
contested.” Id. at *3.
We
conclude that the facts in the case at hand are distinguishable and more akin to
those in Reinhart. In Reinhart, the Texas Supreme Court held
that the trial court’s error in submitting an unavoidable accident instruction
was harmless error, stating that:
No
evidence in this case even remotely suggests that the unavoidable accident
instruction in any way caused the case to be decided differently than it would
have been without it.
906
S.W.2d at 472; see also Hill, 849 S.W.2d at 803 (holding that an
erroneous unavoidable accident instruction did not warrant reversal). In
the instant case, like in Reinhart, liability was not closely
contested. Appellee secured a unanimous jury verdict of no liability, and
the record demonstrates that the jury did not ask any questions about the
instruction or its role in their deliberations. See Reinhart, 906
S.W.2d at 473-74. Further, Appellant’s burden to establish that Appellee
knew or should have known of the alleged hazard was not met. Consequently,
under the circumstances of this particular case, we conclude that it is not
likely that the erroneous unavoidable accident instruction caused the rendition
of an improper judgment.
3.
“Time of Hazard” Instruction
Finally,
Appellant contends that the instruction requiring the jury to find proof of how
long the hazard existed prior to the incident in question was prejudicial and
improper for several reasons. Appellant argues that the instruction is 1) an
incorrect statement of the law, 2) unnecessarily duplicative, and 3) contradicts
the res ipsa loquitur instruction, which allowed the jury to find
Appellee negligent, even in the absence of direct evidence. We first note
that because Appellant’s only objection to this instruction at trial was that
it was an incorrect statement of the law, we will not address whether the
instruction was unnecessarily duplicative or contradicted the res ipsa
loquitur instruction. See Tex. R. App. P. 33.1(a); Payne,
838 S.W.2d at 241. Secondly, Appellant’s argument is inadequately
briefed, as it fails to cite any legal authority for the proposition that the
instruction is an incorrect statement of the law. Tex. R. App. P. 38.1(h); see Fredonia
State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994).
Therefore Appellant presents nothing for review regarding the “time of
hazard” instruction.
Having
addressed all of Appellant’s arguments regarding the jury instructions in
favor of Appellee, we overrule Appellant’s second issue.
C.
Sanctions
Appellant’s
final contention on appeal is that the court erred in imposing sanctions on
Appellant’s attorney. A trial court’s sanctions award is reviewed for
abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.
1992) (orig. proceeding). Discovery sanctions serve three purposes: 1) to
secure the parties' compliance with the discovery rules; 2) to deter other
litigants from violating the discovery rules; and 3) to punish parties who
violate the discovery rules. McRae v. Guinn Flying Serv., 778
S.W.2d 189, 191 (Tex. App.—Houston [1st Dist.] 1989, no writ). Although
the choice of sanctions under Rule 215 is left to the sound discretion of the
trial judge, the sanctions imposed must be just. Tex. R. Civ. P. 215.2; Wal-Mart
Stores, Inc. v. Butler, 41 S.W.3d 816, 817 (Tex. App.—Dallas 2001, no
pet.). There are certain limitations on a trial judge's power to impose
sanctions for discovery abuse. First, the sanction must bear a direct
relationship to the offensive conduct. TransAmerican Natural Gas Corp. v.
Powell, 811 S.W.2d 913, 917 (Tex. 1991) (orig. proceeding). Second,
the sanction must not be excessive; it should be no more severe than necessary
to satisfy its legitimate purposes. Id. In considering
whether sanctions are just, we review the entire record, including the evidence,
arguments of counsel, written discovery on file, and the circumstances
surrounding the parties' discovery abuse. Daniel v. Kelley Oil Corp.,
981 S.W.2d 230, 234 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) (op. on
reh’g).
Appellant
first argues that any sanctions attributable to Appellee’s alleged
misrepresentation regarding a conflicting trial in Dallas County are improper
because Appellee’s motion did not mention this accusation, and Appellant had
no notice that Appellee would seek sanctions for this act. The record,
however, does not demonstrate that any portion of the sanctions ordered by the
trial court resulted from this allegation. The trial court specifically
stated at the hearing that the motion was granted “as a result of the various
activities as set forth in the motion and as developed through the letters that
are before the court.”1 Thus, we need not
address whether Appellant received timely notice of Appellee’s allegations
regarding the hearing conflict.
We
further note that Appellee’s second motion for sanctions cited civil Rules
215.1(d) and 215.2(b) as a basis for entitlement to sanctions relief, both of
which apply to discovery abuse. Tex.
R. Civ. P. 215.1(d), 215.2(b). Notably, two of the allegations made
by Appellee in the motion do not provide a basis for awarding sanctions under
Rule 215:
1)
Appellant’s refusal to attempt an agreed proposed order regarding the trial
court’s rulings on a previous motion to compel.
2)
Appellant’s refusal to non-suit a Kroger store manager that did not work at
the Granbury store at the time of the incident, as previously promised by
Appellant’s attorney.
This
leaves only two allegations that are sanctionable under Rule 215.1(d) or
215.2(b). First, is the alleged failure of Appellant’s attorney to
produce Appellant for deposition. Second, is Appellee’s contention that
Appellant’s counsel failed to respond to two letters asking for supplemental
discovery responses.
In
reviewing the entire record, including the evidence, arguments of counsel,
written discovery on file, and the circumstances surrounding the deposition of
Appellant, we conclude that the $1,500 sanctions award was not warranted.
The parties’ attorneys maintained a contentious working relationship
throughout this dispute as evidenced by their interaction in setting a
deposition date for Appellant. In a series of letters between the parties,
a pattern of uncooperative behavior is evidenced from both sides.
According
to the exhibits attached to the motion for sanctions, Appellee’s first written
request to depose Appellant was on July 19, 2002. The letter simply
requested Appellant to apprise Appellee of dates the Appellant was available for
deposition. In her response letter, dated July 23, 2002, Appellant’s
counsel stated that because Appellee wholly failed to provide Appellant with any
meaningful discovery, she would refuse to make her client available for
deposition until after the court’s ruling on her motion to compel, scheduled
on August 15, 2002. On August 7, 2002, Appellee sent a notice of intention
to take the oral deposition of Appellant on August 14, 2002, one day before the
hearing on Appellant’s motion to compel. Appellant, in turn, filed a
motion to quash the deposition asking the court to delay the deposition until
after the hearing on Appellant’s motion to compel. At the hearing, the
parties represented to the trial court that they could reach an agreement on the
deposition date, and the trial court admonished the parties that “[t]he
plaintiff needs to be produced, and, of course, Kroger needs to produce whomever
they should produce.”
The
next correspondence regarding Appellant’s deposition found in the record is a
letter from Appellee dated September 5, 2002. In that letter, Appellee
remarked on Appellant’s failure to provide dates of availability for
deposition and suggested seven different days in September for the
deposition. On the same day, Appellant sent a letter to the court with a
copy to Appellee stating that Appellant’s counsel would be out of the office
on vacation and for personal commitments from September 11, 2002 until October
9, 2002. The letter advised “all counsel of record that [Appellant’s
attorney would] be unavailable to participate in depositions or discovery
matters during the dates set forth above.”
Thereafter,
Appellee sent a notice of intent to take the oral deposition of Appellant on
September 9, 2002. Appellant informed Appellee that she would not be
available, citing Appellant’s unavailability on such short notice and that the
notice was “less than one business day in advance of the deposition.”
Apparently, the parties ultimately reached an agreement on a date for
Appellant’s deposition. The record reflects that Appellee sent a letter
to Appellant on September 9, 2002, confirming the parties’ agreement to
conduct Appellant’s deposition on October 15, 2002 in the offices of
Appellant’s attorney. Despite this agreement, which Appellant made no
objections to, Appellee filed the motion for sanctions on September 27, 2002, as
well as a motion to compel Appellant’s deposition. The motion to compel
Appellant’s deposition requested the trial court to order Appellant’s
deposition on or before October 4, 2002. The sanctions hearing was held on
October 7, 2002, eight days before Appellant’s scheduled deposition.
Although
it is obvious from the record that the parties were unable to conduct discovery
without the court’s intervention and that Appellant’s attorney was
uncooperative in scheduling her client for deposition, the trial court’s
sanctions are excessive in light of the entire record. Other, less severe
sanctions would have satisfied the trial court’s presumed legitimate purpose
of enforcing cooperative compliance with discovery rules, especially in light of
the fact that the trial court ordered sanctions prior to Appellant’s
scheduled, and agreed upon, date for deposition. For example, the trial
court could have ordered Appellant’s deposition for a specific date before
imposing monetary sanctions. Accordingly, we hold that the trial court
abused its discretion in awarding sanctions, and we sustain Appellant’s third
issue.
III. Conclusion
For
the reasons stated above, we affirm the trial court’s take-nothing judgment in
favor of Appellee. We reverse the trial court’s sanctions order and
render judgment denying Appellee’s motion for sanctions.
DIXON
W. HOLMAN
JUSTICE
PANEL
B: HOLMAN, GARDNER, and WALKER, JJ.
DELIVERED:
June 3, 2004
NOTES
1.
None of the letters referred to by the trial court relate to the scheduling
conflict with the sanctions hearing.