Joe Anthony Romero v. Kroger Texas L.P., Sedgwick Claims Management Services, and Phillips, Akers, Womac

Opinion

Opinion issued December 5, 2013

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-12-00049-CV ——————————— JOE ANTHONY ROMERO, Appellant V. KROGER TEXAS, L.P., SEDGWICK CLAIMS MANAGEMENT SERVICES, AND PHILLIPS AKERS WOMAC, Appellees

On Appeal from the 212th District Court Galveston County, Texas Trial Court Case No. 10CV3689

MEMORANDUM OPINION

Appellant, Joe Anthony Romero, brought a premises-liability suit against

Kroger Texas, L.P., its third-party claims administrator (Sedgwick Claims

Management Services), and its attorneys (Phillips Akers Womac). In six issues,

Romero appeals the trial court’s (1) granting of Sedgwick’s motion for summary judgment, (2) dismissal of Phillips Akers Womac based on failure to state a claim,

and (3) granting Kroger’s motion for sanctions that dismissed Romero’s claims

against it.

We affirm.

Background

In September 2010, Romero filed suit against Kroger and Sedgwick for

injuries allegedly sustained in May 2010 from slipping on the floor of Kroger’s

premises. A year later, Romero added Phillips Akers Womac as a party to the suit.

Romero only referred to the law firm once in its allegations: “Plaintiff now

requests that the court cite Phillips, Akers, and Womac, attorneys at law, as

defendant/s in the above cause no. for their ability to conspire and coach the parties

involved.”

Sedgwick filed a traditional and no-evidence motion for summary judgment

in September 2011. It alleged, in part, that Romero could not establish that it had

created an unreasonably dangerous situation or that it had in any way conspired

with Kroger against Romero. Romero did not file a response to the motion until

the day of the hearing. No evidence was attached to the response. The trial court

granted the motion.

Phillips Akers Womac and other defendants filed special exceptions to

Romero’s live pleading in November 2011. The law firm argued that Romero had

2 failed to plead a valid cause of action against it and asked that the claim against it

be stricken. Romero did not file a response to the motion. The trial court granted

the special exceptions and dismissed Romero’s claim against the law firm.

After the trial court ruled on the special exceptions, only Kroger remained as

a defendant. Previously, in August 2011, Kroger had served interrogatories and

requests for production on Romero. He never responded to them. Kroger filed

two motions to compel in October 2011. The trial court granted the motions to

compel, requiring Romero to respond to the discovery requests within 45 days.

The orders warned Romero that failure to respond would result in his pleadings

being struck. Romero did not comply with the orders. Kroger filed a motion for

sanctions, seeking dismissal of Romero’s claims against it. On February 27,

2012—six months after Romero had been served with the discovery requests—the

trial court granted the sanctions, and struck Romero’s claims against Kroger.

Romero filed a motion for new trial, which the trial court also denied.

Motion for Summary Judgment

Romero challenges the trial court’s grant of summary judgment in favor of

Sedgwick.

A. Standard of Review

The summary-judgment movant must conclusively establish its right to

judgment as a matter of law. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986).

3 Because summary judgment is a question of law, we review a trial court’s

summary judgment decision de novo. Mann Frankfort Stein & Lipp Advisors, Inc.

v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).

After an adequate time for discovery, a party may move for no-evidence

summary judgment on the ground that no evidence exists of one or more essential

elements of a claim on which the adverse party bears the burden of proof at trial.

TEX. R. CIV. P. 166a(i); Flameout Design & Fabrication, Inc. v. Pennzoil Caspian

Corp., 994 S.W.2d 830, 834 (Tex. App.—Houston [1st Dist.] 1999, no pet.). The

burden then shifts to the non-movant to produce evidence raising a genuine issue

of material fact on the elements specified in the motion. TEX. R. CIV. P. 166a(i);

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). The trial court

must grant the motion unless the non-movant presents more than a scintilla of

evidence raising a fact issue on the challenged elements. Flameout Design, 994

S.W.2d at 834; see also Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706,

711 (Tex. 1997) (holding “[m]ore than a scintilla of evidence exists when the

evidence supporting the finding, as a whole, rises to a level that would enable

reasonable and fair-minded people to differ in their conclusions”).

To determine if there is a fact issue, we review the evidence in the light most

favorable to the non-movant, crediting favorable evidence if reasonable jurors

could do so, and disregarding contrary evidence unless reasonable jurors could not.

4 See Fielding, 289 S.W.3d at 848 (citing City of Keller v. Wilson, 168 S.W.3d 802

827 (Tex. 2005)). We indulge every reasonable inference and resolve any doubts

in the non-movant’s favor. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215

(Tex. 2002). When the trial court’s summary judgment order does not state the

basis for the trial court’s decision, we must uphold the order if any of the theories

advanced in the motion are meritorious. Provident Life & Accident Ins. Co. v.

Knott, 128 S.W.3d 211, 216 (Tex. 2003).

B. Analysis

Romero alleged in his live pleading that Sedgwick bore responsibility for the

injuries he sustained on Kroger’s premises. In its no-evidence motion for summary

judgment, Sedgwick argued there was no evidence that it (1) created an

unreasonably dangerous situation, (2) had actual or constructive notice of a

condition, (3) failed to reduce or eliminate the risk posed by a recently cleaned

floor, (4) deprived or deceived Romero, (5) participated in any business plan to

discriminate against Romero, and (6) conspired against Romero. The burden then

shifted to Romero to establish some evidence of these matters. See TEX. R. CIV. P.

166a(i). Romero did not file a timely response to the motion. The response he did

file did not include any evidence. We hold the trial court did not err by granting

summary judgment in favor of Sedgwick.

5 Special Exceptions

Romero’s live pleading mentions Phillips Akers Womac once in its

allegations: “Plaintiff now requests that the court cite Phillips, Akers, and Womac,

attorneys at law, as defendant/s in the above cause no. for their ability to conspire

and coach the parties involved.” Phillips Akers Womac filed special exceptions,

claiming Romero had failed to state a claim against it and seeking dismissal of the

invalid claims. The trial court agreed and struck any alleged claims against it.

A. Standard of Review & Applicable Law

We review the trial court’s ruling on special exceptions for an abuse of

discretion. Wayne Duddlesten, Inc. v. Highland Ins. Co., 110 S.W.3d 85, 96 (Tex.

App.—Houston [1st Dist.] 2003, pet. denied). We limit our review to the live

pleadings; evidence is not considered. Id. If the plaintiff has failed to assert a

claim recognized in Texas, “the defendant may file special exceptions and a

motion to dismiss.” Id. at 96–97.

Romero alleged that Phillips Akers Womac was a defendant in the case “for

their ability to conspire and coach the parties involved.” Romero made no

allegation that the law firm had actually “conspired” or coached the other

defendants. Romero only claimed the law firm had that ability. We agree with the

trial court that there is not a recognized cause of action in Texas against a person or

6 entity for simply having the ability to conspire with or coach others. We hold the

trial court did not abuse its discretion by granting the special exceptions and

striking Romero’s alleged claims against Phillips Akers Womac.

Death Penalty Sanctions

Kroger served Romero with interrogatories and requests for production.

Romero never responded to the discovery requests. As a result, Kroger filed a

motion to compel. At the hearing, the trial court ordered Romero to respond to the

discovery requests and gave him 45 days to respond. Romero still did not respond.

Kroger filed a motion for sanctions, asking the trial court to dismiss all claims

asserted by Romero against Kroger. The trial court granted the motion for

sanctions and denied Romero’s subsequent motion for new trial.

We review a trial court’s ruling on a motion for sanctions under an abuse of

discretion standard. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004). A trial

court abuses its discretion if it acts without reference to any guiding rules and

principles. Id. at 839. We reverse only if the trial court’s ruling it arbitrary or

unreasonable. Id.

7 B. Analysis

The legitimate purposes of discovery sanctions are (1) to secure compliance

with discovery rules, (2) to deter other litigants from similar misconduct, and (3) to

punish violators. Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex. 1992);

Salomon v. Lesay, 369 S.W.3d 540, 557 (Tex. App.—Houston [1st Dist.] 2012, no

pet.). The sanction imposed by the court must be “just.” TEX. R. CIV. P. 215.2(b);

TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991).

“Two factors mark the bounds of the trial court’s discretion in order for sanctions

to be just: first, a direct relationship between the offensive conduct and the

sanction imposed must exist; and second, the sanction imposed must not be

excessive.” Chrysler, 841 S.W.2d at 849.

Rule 215.2 of the Texas Rules of Civil Procedure allows a trial court to

sanction a party for failure to comply with a discovery order or request. See TEX.

R. CIV. P. 215.2; Cire, 134 S.W.3d at 839. Among the sanctions available under

Rule 215.2 are orders “striking out pleadings or parts thereof,” “dismissing with or

without prejudice the actions or proceedings or any part thereof,” and “rendering a

judgment by default against the disobedient party.” TEX. R. CIV. P. 215.2(b)(5).

These sanctions are often referred to as “death penalty” sanctions. See generally

Cire, 134 S.W.3d at 840–41. “When a trial court strikes a party’s pleadings and

dismisses its action or renders a default judgment against it for abuse of the

8 discovery process, the court adjudicates the party’s claims without regard to their

merits but based instead upon the parties’ conduct of discovery.” TransAmerican,

811 S.W.2d at 918.

Before imposing death penalty sanctions, the trial court ordinarily must

consider and test lesser sanctions that would promote compliance with the rules.

Cire, 134 S.W.3d at 842. The trial court may impose death penalty sanctions as a

first resort, however, when the offending party demonstrates “egregious conduct

and blatant disregard for the discovery process.” Id. Moreover, for death penalty

sanctions to be just, the trial court “must determine that ‘a party’s hindrance of the

discovery process justifies a presumption that its claims or defenses lack merit.’”

GTE Commc’ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 730 (Tex. 1993) (quoting

TransAmerican, 811 S.W.2d at 918).

In all, Romero had six months from the time the discovery requests were

first served on him to the time his pleadings against Kroger were struck. In that

time, there is no evidence at all that Romero responded to any of the interrogatories

or discovery requests. Despite the trial court’s order to respond to Kroger’s

discovery requests, Romero refused to comply.

Typically, an order to compel responses to discovery is not, in itself, a lesser

sanction, which must be imposed before death penalty sanctions are assessed.

Andras v. Mem’l Hosp. Sys., 888 S.W.2d 567, 572 (Tex. App.—Houston [1st Dist.]

9 1994, writ denied). “However, an order to compel joined with a statement that

noncompliance would result in dismissal does constitute a lesser sanction.” Id.;

see also Paradigm Oil, Inc. v. Retamco Operating, Inc., 161 S.W.3d 531, 539

(Tex. App.—San Antonio 2004, pet. denied) (same).

The trial court’s orders requiring Romero to respond to the discovery

requests warned Romero that, if he failed to respond, “Plaintiffs’ pleadings will be

stricken.” Accordingly, the trial court’s order granting the motions to compel

served as lesser sanctions. See Andras, 888 S.W.2d at 572. We hold the trial court

did not abuse its discretion by dismissing Romero’s claims against Kroger.

Remaining Issues

Romero’s brief and supplemental brief contain a number of other complaints

against the defendants and the trial court. An appellate court’s opinion must be “as

brief as practicable but that addresses every issue raised and necessary to final

disposition.” TEX. R. APP. P. 47.1 (emphasis added). Our review of the issues

raised above fully supports the trial court’s final judgment as it relates to Romero’s

claims against the identified defendants. There is not any matter remaining in

appellant’s brief that has been properly preserved and briefed that would affect our

disposition of the above issues. Accordingly, we do not need to address the

remainder of Romero’s issues.

10 Conclusion

We affirm the judgment of the trial court.

Laura Carter Higley Justice

Panel consists of Justices Keyes, Higley, and Massengale.