Fletcher v. Blair

843 S.W.2d 601, 1992 Tex. App. LEXIS 2134, 1992 WL 191061

• Court: Court of Appeals of Texas
• Decided: August 12, 1992
• Docket: No. 3-91-077-CV
• Status: Published

Opinions

JONES, Justice.

This is an appeal from an order of dismissal following the imposition of so-called “death penalty” discovery sanctions. The district court dismissed the cause after striking appellant Marcilea Fletcher’s pleadings for alleged discovery abuse. Tex.R.Civ.P.Ann. 215 (Supp.1991). In two points of error, Fletcher alleges that the district court erred by: (1) abusing its discretion in striking her pleadings and dismissing the cause; and (2) depriving her of her claim without federal due process and state due course of law.

Fletcher filed the underlying lawsuit for personal injuries she allegedly sustained while she was a passenger in a vehicle appellee Allison Jennifer Blair was driving. Blair’s vehicle collided with two other vehicles driven by appellees Brett James Strasma and Paula Kay Galbraith. Fletcher claims she suffered closed-head injuries, severe headaches, broken teeth, thoracic-outlet syndrome requiring surgery, cervical injuries, numbness and tingling in parts of her body, and potential carpal-tunnel syndrome. In addition to the three drivers, Fletcher sued appellee Patricia Huntington, a/k/a Patience Huntington, for negligent entrustment of her vehicle to Blair.

During discovery, Fletcher falsely claimed on two occasions that she had received bachelor’s and master’s degrees from The University of Texas and was working towards a doctorate degree. After discovering the falsity of these claims, appellees filed a joint motion for sanctions based on Fletcher’s statements, and the district court struck her pleadings.¹ The dismissal is effectively with prejudice because the two-year statute of limitations has run on Fletcher’s claim. Tex.Civ.Prac. & Rem.Code Ann. § 16.003 (1986). At the hearing on Fletcher’s motion for new trial, appellees claimed that Fletcher also misrepresented her past income on her tax returns. Fletcher originally claimed that the errors in her tax return resulted from her lack of access to her tax records and her impaired memory, but admitted at the hearing that she knew she was giving false information in response to the appellees’ interrogatories. The district court denied Fletcher’s motion for new trial on January 24, 1991.

The supreme court changed the law regarding “death penalty” sanctions during the pendency of this appeal. See Trans-American Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex.1991). We believe the district court should have the opportunity to reconsider the rulings of which appellant complains in light of TransAmerican. We will, therefore, vacate the district court’s order of dismissal and remand the cause. See Welex v. Broom, 816 S.W.2d 340 (Tex.1991).

The dissent contends that this Court lacks the power to nullify the district court’s order of dismissal without first finding error. We disagree. Contrary to the dissent, we believe that the verbs “vacate” and “reverse” have different meanings. “Reverse” is properly used only when the higher court first determines that the lower court committed an error of law. “Vacate” is properly used in at least the following circumstances: (1) when a court nullifies its own judgment, ruling, or order (synonymous in this sense with “set aside” or “withdraw”); (2) when an appellate court nullifies the judgments, rulings, or orders of the courts below because the parties have settled, or the cause has otherwise become moot on appeal; and (3) when an appellate court reaches a decision in one cause on a novel legal issue, the appellate court may, without finding error: (a) nullify the judgments of the courts below in a different, second cause involving the same novel legal issue; and (b) remand that second cause to the appropriate court below for further consideration if the second cause was pending on appeal at the time the appellate court reached its decision on the relevant legal issue in the first cause (known as “vacating in light of ... ”).²

In the third example given above, it is not necessary for the appellate court to find error, because the court below was relying on the then-existing law when it rendered its judgment, ruling, or order. Whether the court below actually committed “error” in such a situation is more a question of semantics and legal philosophy.³ Vacating the judgment, ruling, or order and remanding the cause for further consideration in light of the “new” law spares all participants the time and effort of searching for such after-the-fact “error.” Although this procedure is not specifically mentioned in Texas Rule of Appellate Procedure 80(b), we hold that this Court has the inherent power to render such a judgment.⁴

Accordingly, without addressing the merits of the appeal, we vacate the district-court order of dismissal and remand the cause to that court for further proceedings in light of TransAmerican.

1 . Because none of the parties has raised the issue on appeal, we assume without deciding that Fletcher’s conduct was a proper subject for sanctions under Rule 215.

2 . An intermediate appellate court may also vacate and remand in light of the decision of a higher appellate court. Two examples of this principle would be the instant cause and a case in which the Texas Supreme Court or the Court of Criminal Appeals of Texas vacates and remands in light of a decision of the United States Supreme Court.

3 . The aggrieved party must, of course, preserve the alleged error. See Tex.R.App.P.Ann. 52 (Pamph.1992).

4 . The Court of Criminal Appeals of Texas frequently disposes of causes in this manner, as does the Supreme Court of the United States. E.g., Stringer v. Black, 494 U.S. 1074, 110 S.Ct. 1800, 108 L.Ed.2d 931 (1990) (vacating and remanding for consideration in light of Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990)); Haynie v. State, 751 S.W.2d 878 (Tex.Crim.App.1988) (vacating and remanding for consideration in light of Rose v. State, 572 S.W.2d 529 (Tex.Crim.App.1988)). The Texas Supreme Court disposed of Welex in this manner, although we admit we do not understand why the supreme court remanded the cause to the court of appeals instead of to the trial court, as the appeal involved a matter entrusted to the trial court’s discretion as opposed to a pure question of law. Nevertheless, the supreme court did not imply that on remand the court of appeals was precluded from taking such action itself. See Welex v. Broom, 816 S.W.2d 340 (Tex.1991); see also Bacon v. General Devices, Inc., 830 S.W.2d 106 (Tex.1992).

We are not aware of any specific authorization in either the Texas Rules of Appellate Procedure or the Code of Criminal Procedure for the actions of the court of criminal appeals or the supreme court, nor are we aware of any specific authorization in either the Federal Rules of Appellate Procedure or the Rules of the Supreme Court for the actions of the United States Supreme Court.