in Re ADT Security Services, S.A. De C v.

• Court: Court of Appeals of Texas
• Decided: February 4, 2009
• Docket: 04-08-00799-CV
• Status: Published

Opinion

i i i i i i

MEMORANDUM OPINION

No. 04-08-00799-CV

IN RE ADT SECURITY SERVICES, S.A. DE C.V.

Original Mandamus Proceeding1

PER CURIAM

Sitting: Catherine Stone, Chief Justice Phylis J. Speedlin, Justice Steven C. Hilbig, Justice

Delivered and Filed: February 4, 2009

PETITION FOR WRIT OF MANDAMUS DENIED; MOTION FOR SANCTIONS GRANTED

On October 29, 2008, relator ADT Security Services, S.A. de C.V. (“ADT”) filed a petition

for a writ of mandamus with this court, asserting the trial court erred in denying its second motion

for continuance when real parties in interest Alert 24 Security, LLC, Adelina Federico, Jesus

Hernandez Alcocer, and Asociados Multidisciplinarios, S.A. de C.V. (collectively

“Multidisciplinarios”) failed to comply with the trial court’s order compelling the production of

discovery. Along with the petition, ADT filed an emergency motion for temporary relief in this

court, seeking to stay the trial that had already commenced. This court requested a response from

real parties in interest and granted ADT’s emergency motion, staying the ongoing trial.

1 … This proceeding arises out of Cause No. 2006-CVQ-001051-D2, styled ADT Security Services, S.A. de C.V. v. Alert 24, LLC, et al., pending in the 111th District Court, W ebb County, Texas, the Honorable Raul Vasquez presiding. 04-08-00799-CV

In its petition for writ of mandamus, ADT alleges that the discovery it sought went to the

heart of its case, and apart from sixty pages of documents primarily written in Spanish,

Multidisciplinarios failed to produce any substantive documents in response to its numerous requests

for production. On August 27, 2008, ADT filed a motion to compel the outstanding discovery,

which was considered by the trial court at a hearing on October 16, 2008. On October 24, 2008, the

trial court signed an order granting ADT’s motion to compel discovery, ordering Multidisciplinarios

“to produce to Plaintiff’s counsel, by 9 a.m. on October 27, 2008, documents that exist, are within

the possession of [Multidisciplinarios] and its employees, officers or agents, and/or are in the

possession of persons under the control of [Multidisciplinarios] and its employees, officers, or

agents, and are responsive to the following document categories: . . . .”

ADT alleges that prior to the deadline set forth in the trial court’s order, Multidisciplinarios

produced only 56 pages of documents. ADT then filed its second motion for continuance that was

considered at a hearing on October 27, 2008, the date set for trial. The trial court denied the motion

for continuance and proceeded with the pretrial proceedings. On October 28, 2008, the trial court

heard various pretrial motions and began trial on October 29, 2008, the same day ADT filed the

petition for writ of mandamus in this court.

In its response to the petition, Multidisciplinarios asserts that the trial court did not abuse its

discretion in failing to grant ADT’s second motion for continuance. In addition, Multidisciplinarios

filed a motion for sanctions, requesting that this court impose sanctions against ADT under appellate

rule 52.11 in the amount of $7,575.00 for their attorneys’ fees. Multidisciplinarios asserts as the

basis for their sanctions under rule 52.11 that (1) ADT omitted portions of the reporter’s record from

-2- 04-08-00799-CV

the hearings in the trial court, (2) ADT grossly misstated and omitted material facts and evidence,

(3) the petition for writ of mandamus is groundless, and (4) the petition was brought solely for delay.

Based on the record before us, we conclude ADT has failed to show the trial court clearly

abused its discretion in denying ADT’s second motion for continuance. Accordingly, the petition

for a writ of mandamus is DENIED. See TEX . R. APP. P. 52.8(a). Our stay order, entered on October

29, 2008, is vacated.

SANCTIONS

We next consider Multidisciplinarios’ claim that sanctions are necessary because ADT

omitted portions of the reporter’s record from the hearing of the trial court that explains the basis of

the trial court’s decision to not grant the motion for continuance. In ADT’s petition for writ of

mandamus, ADT asserts that although the trial court recognized there were incomplete and critical

documents that Multidisciplinarios had not produced in compliance with the trial court’s order, the

trial court still did not grant the motion for continuance. Furthermore, ADT argues that there is little

question that Multidisciplinarios has possession, custody, or control of relevant documents

responsive to the trial court’s order. ADT claims that by ordering Multidisciplinarios to produce the

documents ADT sought to compel production of, the trial court acknowledged that the documents

were material and necessary for ADT to prove its claims. As a result, ADT claims the trial court

should have granted a continuance of the trial in order to provide ADT an adequate opportunity to

obtain and inspect the documents and incorporate them into its trial presentation.

In order to support its contention that the trial court found the documents critical in its

petition for writ of mandamus, ADT quoted Judge Vasquez from a previous hearing as follows: “‘I

-3- 04-08-00799-CV

find, that Multidisciplinary Associates owes you a lot of discovery. And, I find, that based on

[Defendant Alcocer’s] actions, there is no way that you can prove the criminal prosecution of the

same in Mexico, unless he gives you all the documentation and all the evidence that you need from

his perspective.’” ADT concluded as follows: “Unfortunately, the practical effect of denying ADT

Mexico’s Motion for Continuance is to force ADT Mexico to try a lawsuit without the very

documents that the Trial Court found essential enough to compel.”

Along with its petition for writ of mandamus, ADT included in the record only five pages

of what we now know came from a one hundred and eighteen page reporter’s record from the

hearing on October 27, 2008. The few pages of the reporter’s record from the hearing that ADT

provided to this court included only those portions of the hearing where counsel for ADT asserted

it was “not ready” to proceed, the parties and the trial judge briefly discussed pretrial matters, and

the trial judge evidenced his intent to pick the jury later that day. Based on the allegations in ADT’s

petition for writ of mandamus and the emergency motion for temporary relief, this court requested

a response from Multidisciplinarios and granted the emergency motion, staying the ongoing trial.

In its response to the petition for writ of mandamus, Multidisciplinarios informed this court that

during the October 27, 2008 hearing, the trial court heard substantial argument regarding the

discovery issue, whether or not Multidisciplinarios possessed the relevant discovery, and the second

motion for continuance. However, as Multidisciplinarios pointed out, ADT failed to include in the

record it provided to this court any portion of the hearing on ADT’s second motion for continuance

that was considered during the October 27, 2008 hearing.

-4- 04-08-00799-CV

After Multidisciplinarios filed its response and motion for sanctions, pointing out the

deficiencies in ADT’s record, ADT filed a response to the motion for sanctions and a supplemental

record that included the full reporter’s record from the October 27, 2008 and the October 28, 2008

hearings. Upon reading the full reporter’s record from the hearing, it was apparent that

Multidisciplinarios argued to the trial court that it had no responsive documents to the trial court’s

order compelling discovery, other than what had already been produced. Judge Vasquez then stated

on the record, “I order open-ended in everything, in whatever form or fashion. And I ordered that

whatever they have, they can give you. They are telling me on record they have given you everything

they have. . . . As I’ve said, you can’t squeeze blood out of a turnip. But, whatever it is they don’t

have, and you prove they have, I will consider.” After hearing substantial argument from ADT as

to why it believed Multidisciplinarios possessed documents responsive to the order, Judge Vasquez

denied the motion for continuance. In doing so, Judge Vasquez provided as follows: “And, yes, it’s

been difficult to get documentation, but there is a lot of - -also showing, that you had a lot of these

documents yourself, from the very beginning - - beginning with 105 boxes. So, please - - three years

later. I don’t think so. As far as the Motion for Continuance is concerned.” The record of the

hearing on October 28, 2008 further emphasizes that Judge Vasquez proceeded to trial without

granting the motion for continuance because he did not believe Multidisciplinarios had in its

possession, custody, or control documents responsive to ADT’s request.

In its motion for sanctions, Multidisciplinarios asserts that because ADT failed to include the

relevant portions of the reporter’s record that contained the arguments of counsel and the response

from the trial court on the motion for continuance, ADT is in violation of Texas Rule of Appellate

-5- 04-08-00799-CV

Procedure 52.11. Multidisciplinarios requests $7,575.00 for the attorneys’ fees expended in response

to the petition for writ of mandamus. We conclude that the sanctions are appropriate for the

following reasons.

Texas Rule of Appellate Procedure 52.11 gives this court the authority to impose sanctions

as follows:

On motion of any party or on its own initiative, the court may— after notice and a reasonable opportunity to respond—impose just sanctions on a party or attorney who is not acting in good faith as indicated by any of the following: on a party or an attorney who is not acting in good faith as indicated by any of the following: (a) filing a petition that is clearly groundless; (b) bringing the petition solely for delay of an underlying proceeding; (c) grossly misstating or omitting an obviously important and material fact in the petition or response; or (d) filing an appendix or record that is clearly misleading because of the omission of obviously important and material evidence or documents.

However, we exercise this discretion with caution and only after careful deliberation. The preamble

to the Texas Rules of Disciplinary Procedure provides:

A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice. Lawyers, as guardians of the law, play a vital role in the preservation of society. The fulfillment of his role requires an understanding by lawyers of their relationship with and function in our legal system. A consequent obligation of lawyers is to maintain the highest standards of ethical conduct.

TEX . DISCIPLINARY R. PROF’L CONDUCT preamble, para. 1. Additionally, we find guidance in the

Texas Supreme Court’s Standards for Appellate Conduct, which provide: “As professionals and

advocates, counsel assist the Court in the administration of justice at the appellate level. Through

-6- 04-08-00799-CV

briefs and oral submissions, counsel provide a fair and accurate understanding of the facts and law

applicable to their case. . . .” See Texas Supreme Court, Standards for Appellate Conduct, available

at http://www.supreme/rules/conduct.asp. “The duty of honesty and candor a lawyer owes to the

appellate court, includes fairly portraying the record on appeal.” Schlafly v. Schlafly, 33 S.W.3d 863,

873 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (sanctioning a party for misrepresenting

and mischaracterizing the facts in their briefing). Texas Rule of Appellate Procedure 52.11 makes

it clear that a lawyer is bound by the same duty of candor in original proceedings. See In re Lerma,

144 S.W.3d 21, 27 (Tex. App.—El Paso 2004, orig. proceeding). We determine whether to impose

sanctions based on the record, the briefs, or other papers filed with the court. See In re Hasbro, Inc.,

97 S.W.3d 894, 898 (Tex. App.—Dallas 2003, orig. proceeding).

ADT claims that its failure to attach the full transcript did not amount to “grossly misstating

or omitting an obviously important and material fact in the petition.” ADT asserts that Texas Rule

of Appellate Procedure 52.7(a)(2) requires only that a relator attach a “transcript of any relevant

testimony from any underlying proceeding.” See TEX . R. APP . P. 52.7(a)(2). In fact, ADT contends

that the transcript pages it left out did not include testimony, but was a discussion between Judge

Vasquez and the lawyers. However, we point out that the portion of the reporter’s record from the

October 27, 2008 hearing ADT did provide to this court when it filed its petition and emergency

motion, only included arguments of counsel and statements of Judge Vasquez, and did not contain

any “testimony.”

In In re Hasbro, Inc., the court was faced with a similar issue, where relator argued that it

was excused from filing the reporter’s record from a relevant hearing because the appellate rules only

-7- 04-08-00799-CV

required relator to file a transcript of relevant testimony, not a transcript that only included

arguments of counsel and the statements of the trial court. See In re Hasbro, Inc., 97 S.W.3d at 898

The court in In re Hasbro, Inc. disagreed with relator, sanctioning it under Texas Rule of Appellate

Procedure 52.11(d) for its failure to include the relevant reporter’s record. Id. at 898-99. The court

reasoned that “Hasbro’s reading of the appellate rules to justify its statements in the petition and

providing an incomplete record cannot be used to escape its obligation to provide this Court with a

truthful petition and a record which includes sufficient evidence on which this Court can base its

decision.” Id. at 899.

When this court considered whether or not to request a response and grant ADT’s emergency

motion for temporary relief staying the ongoing trial, we relied on ADT’s claims in its petition for

writ of mandamus, motion for emergency stay of trial court proceedings, and the record ADT

provided to this court. ADT’s argument in the petition for writ of mandamus as described by ADT

made it appear that Multidisciplinarios did indeed possess documents responsive to the trial court’s

order on the motion to compel, and in light of the trial court’s alleged finding that the documents

were important, still ordered ADT to trial without the necessary documents. In addition, upon

reading the quote of Judge Vasquez that indicated he believed Multidisciplinarios owed ADT a lot

of imperative discovery, this court questioned why Judge Vasquez would on the one hand say that

ADT cannot prosecute the claims without the discovery, yet send it to trial without it. However,

after receiving the supplemental record from ADT that included the reporter’s record from the

October 28, 2008 hearing, the record indicated that when Judge Vasquez was read this quote during

the October 28, 2008 hearing, he responded as follows: “This is before I found out, that

-8- 04-08-00799-CV

Multidisciplinarios Associados is an office that doesn’t do anything, other than sit there for no

purpose?”

As a result of the foregoing, ADT clearly failed to provide this court with that portion of the

reporter’s record that would have informed this court of Judge Vasquez’s reasoning for not granting

the motion for continuance. Had ADT provided this court with the full reporter’s record from the

October 27, 2008 hearing, it is highly unlikely that this court would have granted the stay of the

ongoing trial or requested a response from Multidisciplinarios. As a result, we conclude that ADT

filed a record that is clearly misleading because of the omission of obviously important documents

and grant Multidisciplinarios’ motion for sanctions. See TEX . R. APP . P. 52.11(d).

Whether sanctions are just is determined by the circumstances of the case, but the sanctions

must bear a direct relationship to the offensive conduct. See In re Ford Motor Co., 988 S.W.2d 714,

718 (Tex. 1998) (orig. proceeding). In this case, we were requested to provide emergency relief

based on an incomplete record filed by ADT. Because we relied on the record provided to us and

the arguments in the petition for writ of mandamus and the emergency motion for temporary relief,

we were persuaded to exercise our jurisdiction and stop an ongoing trial. We conclude that the

imposition of a sanction in the amount of $7,575.00 for the attorneys’ fees expended in responding

to the petition for writ of mandamus is just.

CONCLUSION

Accordingly, we deny ADT’s petition for writ of mandamus and grant Multidisciplinarios’

motion for sanctions pursuant to Texas Rule of Appellate Procedure 52.11. ADT Security Services,

S.A. de C.V. and its attorneys, Thomas R. Ajamie, C. David Mee, John W. Clay, and Dona Szak,

-9- 04-08-00799-CV

jointly and severally, are ordered to pay sanctions in the amount of $7,575.00 to Alert 24 Security,

L.L.C., Adelina Federico, Jesus Hernandez Alcocer, and Asociados Multidisciplinarios, S.A. de C.V.

Such fees are to be paid within 30 days of the date of this opinion. Failure to comply with this

court’s opinion may be punishable by contempt.

-10-