McFarland v. Szakalun

809 S.W.2d 760, 1991 WL 52717

• Court: Court of Appeals of Texas
• Decided: May 30, 1991
• Docket: B14-90-00143-CV
• Status: Published

Opinions

OPINION

ROBERTSON, Justice.

Van McFarland appeals from an order on discovery sanctions. That order granted interlocutory default judgment against McFarland’s clients, and ordered him to pay attorney’s fees to the opposing parties. In five points of error, McFarland claims the trial court improperly found him vicariously liable for his clients’ conduct, and the manner in which sanctions were imposed did not provide notice or due process. Concluding the trial court had authority to sanction McFarland, we affirm.

Initially, we address appellees’ motion to correct erroneous style of this appeal. This case was originally styled “Van E. McFarland v. Janet M. Douvas, Gary K. Siller, Lawrence W. Szakalun, et. al.” Because Janet M. Douvas and Gary K. Siller are the attorneys for appellees, they are not proper parties to this appeal. Therefore, we change the style to read, “Van E. McFarland v. Lawrence W. Szakalun, Professional Anesthesiology Associates Defined Benefit Pension Plan, and William A. Estrada.”

Appellees filed motions to strike pleadings, enter default judgment, for contempt, and for sanctions against Van McFarland and his client, Clyde Wilson. Those motions alleged that appellees served a notice of oral deposition duces tecum on McFarland, notifying him that they intended to take Wilson’s deposition on October 18, 1988. On the day the deposition was scheduled, Wilson arrived late without McFarland. Douvas did not proceed with the deposition because she understood that she could not proceed in McFarland’s absence because Wilson was a party in the case and his attorney of record was McFarland.

Appellees alleged discovery abuses concerning production of documents. Appel-lees filed requests for production of certain documents, including contracts, bank account statements, and income tax returns. When appellees did not receive all the documents they requested, they were informed the documents were in Salisbury, Maryland. Douvas went to Maryland to retrieve the documents. When she arrived in Maryland, she was denied access to certain contracts. When she asked for other documents, she was told that some of them were in Houston, that they did not exist, or that they had been lost. Further, the documents to be produced had not yet been designated for production and would require several hours to collect.

The trial court granted sanctions against McFarland and his client for those discovery abuses and other abuses determined at the hearing on sanctions and contempt. McFarland now claims he as the attorney is not subject to sanctions when there is no evidence that he advised his client to frustrate discovery. In his first, second, and fifth points of error, McFarland claims the trial court erred in holding him vicariously liable for the conduct of his clients, that the trial court’s awards are not authorized by Texas Rule of Civil Procedure 215, and that the discovery abuse is not attributable to his advice.

The trial court, sitting as a trier of fact, has both the right and the duty to weigh the evidence and to draw reasonable inferences and deductions. Alkas v. United Savings Association of Texas, Inc. 672 S.W.2d 852, 856 (Tex.App. — Corpus Christi 1984, writ ref’d n.r.e). The trial court has broad discretion in imposing sanctions for discovery abuses. Chemical Exchange Industries v. Vasquez, 709 S.W.2d 257, 260 (Tex.App. — Houston [14th Dist.] 1986), rev’d in part on other grounds, 721 S.W.2d 284 (Tex.1986). The use of sanctions by trial courts to prevent discovery abuse has developed steadily over the past several years. These changes reflect the continuing pattern both to broaden the discovery process and to encourage sanctions for failure to comply. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). The Supreme Court also approves the use of sanctions to deter abuse of the process in addition to ensure compliance with discovery. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976). As long as sanctions chosen by the trial court for abuse of discovery process are within the authority vested in the trial court, we will not overturn the court’s order unless there is a clear abuse of discretion. Bosnich v. National Cellulose Corp., 676 S.W.2d 446, 447 (Tex.App. — Houston [1st Dist.] 1984, no writ).

The issue here is whether the trial court has authority to sanction the attorney for discovery abuses that are attributed to the client and the attorney. Rule 215 of the Texas Rules of Civil Procedure provides:

If the court finds a party is abusing the discovery process in seeking, making or resisting discovery or if the court finds that any interrogatory or request for inspection or production is unreasonably frivolous, oppressive, or harassing, or that a response or answer is unreasonably frivolous or made for purposes of delay, then the court in which the action is pending may impose any sanction authorized by paragraphs (1), (2), (3), (4),

(5), and (8) of paragraph 2b of this rule. Paragraph 2b provides for the following sanction:

(2) An order charging all or any portion of the expenses of discovery or taxable court costs or both against the disobedient party or the attorney advising him.

We can find no prior case authority on this particular sanction, so we turn to the federal rule and its interpretation for guidance. Federal Rule of Civil Procedure 37(d) provides:

If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails (1) to appear before the officer who is to take the deposition, after being served with a proper notice, or (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or (3) to serve a written response to a request for inspection submitted under Rule 34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (A), (B), and (C) of subdivision (b)(2) of this rule. In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising that party or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

The cases interpreting Rule 37 have determined that a party or his attorney may be required to pay reasonable expenses incurred by the innocent party for a party’s failure to comply with court discovery orders. Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863 (3rd Cir.1984); United States v. Sumitomo Marine & Fire Ins. Co., 617 F.2d 1365 (9th Cir.1980). In United States v. Sumitomo, the government failed to file answers to interrogatories propounded by the opposing party. The party filed a motion seeking either sanctions, or an order compelling answers. The district court considered the government’s six month series of delays and ruled that, unless the government answered the interrogatories within a specified time, the complaint would be dismissed. Despite the court’s order, the government did not timely answer the interrogatories. As a result, the district court imposed a monetary sanction, payable to the opposing party against the government’s counsel. The court found there was a willful and callous disregard of court orders and discovery procedures by government counsel and that it was a continuing course of conduct. The court of appeals found that rule 37(b) allowed the sanction against the attorney for the disobedient party. United States v. Sumitomo, 617 F.2d at 1371.

In Poulis v. State Farm, the sanction assessed was dismissal. In that case, Poulis failed to answer interrogatories propounded by State Farm by the date the district court set for the close of discovery, and failed to file his pretrial statement with the court by the designated time. The district court dismissed the case with prejudice for Poulis’s failure to comply with its orders. The court of appeals concluded that dismissal was too harsh a sanction, but stated:

The district court also could have imposed on plaintiffs’ counsel the costs, including attorney’s fees, of preparing the motion to compel answers to interrogatories and the brief on alternative sanctions, all of which were incurred because of the dilatoriness of plaintiffs’ counsel.

Poulis v. State Farm, 747 F.2d at 869. The federal courts have allowed monetary sanctions against the attorney when there is evidence that the discovery abuses were incurred because of the dilatoriness of counsel. Because rule 215 was modeled after the federal rule, we will construe rule 215 accordingly. Therefore, if the evidence showed that the discovery abuses occurred as a result of McFarland’s dilatoriness, the trial court was within its authority to impose sanctions.

We have reviewed the record and have found that it does not contain the statement of facts from the first two days of the hearing on contempt and sanctions. McFarland claims that the three day hearing was truly two separate hearings and that the first two days are inapplicable to the discovery sanctions. The court, however, at the beginning of the third day of testimony, stated:

Let the record reflect that we are resuming the hearing, Cause Number 86-36576. At this time we will take the matter of the Motion for Sanctions pertaining to discovery matters. Let’s proceed.

As appellant, McFarland has the burden to bring forward the entire record to prove harmful error that entitles him to reversal. See Escontrias v. Apodaca, 629 S.W.2d 697, 699 (Tex.1982). When the record is incomplete, we must assume that the portion omitted supports the correctness of the trial court’s judgment. Chessher v. Southwestern Bell Telephone Co., 671 S.W.2d 901, 903 (Tex.App. — Houston [14th Dist.] 1983) rev’d on other grounds, 658 S.W.2d 563 (Tex.1983). Because the hearing was a combined hearing on discovery and contempt, and we only have a record of the third day of that three day hearing, we must assume the evidence from the first two days supports the trial court’s orders.

The evidence from the third day of the hearing shows appellees did not receive all the documents they requested. When appellees made further requests, they were informed the documents were in Salisbury, Maryland. Douvas went to Maryland to retrieve the documents but was denied access to certain contracts. When she asked for other documents, she was told that some of them were in Houston, that they did not exist, or that they had been lost. Further, the documents to be produced had not yet been designated for production and would require several hours to collect.

James Pierce, an employee of McFarland who was responsible for preparing Wilson’s answers to interrogatories and responses to requests for production, testified that he did not review the document production requests with Wilson. Instead, he accepted Wilson’s statement that everything had been produced.

Further, the day before Wilson’s deposition, Douvas asked McFarland if she would see him at the deposition the following day. McFarland replied, “I don’t know. Will you?” To which, Douvas replied, “Well, it kind of would be nice to have a definite confirmation.” McFarland replied, “Yes, I bet it would.” The following day, at the deposition, Wilson arrived late without McFarland. McFarland states in his brief to this court that he “determined his attendance at the deposition could not be justified economically and did not attend.”

When we consider this evidence in the light most favorable to the court’s judgment and consider any evidence from the first two days of the hearing in support of the judgment, we find sufficient evidence that the discovery abuses resulted from McFarland’s dilatoriness, and the trial court was within its authority to impose sanctions. We overrule McFarland’s first, second, and fifth points of error.

In his third point of error, McFarland claims the trial court’s order of sanctions violates the due process clause of the United States Constitution and the Texas Constitution, his statutory rights to zealous representation of counsel, and the right of his client to have advice kept confidential.

A proper application of a sanction rule will, as a matter of law, support the presumption of due process. Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinea, 456 U.S. 694, 706, 102 S.Ct. 2099, 2106, 72 L.Ed.2d 492 (1982). If the trial court did not abuse its discretion in the application of the sanction rule, then the sanction is nothing more than the invocation of a legal presumption. Id.; Tate v. Commodore County Mutual Ins. Co., 767 S.W.2d 219, 225 (Tex.App.—Dallas 1989, writ denied).

We have concluded the trial court did not abuse its discretion in applying the sanction rule. Consequently, with regard to McFarland’s federal claim, we conclude the trial court did not deny McFarland due process by imposing monetary sanctions against him. As to his state claim, we see no reason not to interpret the Texas Constitution as we have the United States Constitution. Therefore, the trial court did not deprive McFarland of his right to due process guaranteed by the fourteenth amendment to the United States Constitution and article 1, section 19 of the Texas Constitution. Similarly, the court’s order did not deprive McFarland or Wilson of any statutory rights. We overrule McFarland’s third point of error.

In his fourth point of error, McFarland claims the manner in which sanctions were imposed did not provide notice or due process. He first contends the trial court erred in considering matters not alleged in a written motion. McFarland claims the trial court awarded $13,169.50 in sanctions that was not prayed for in any of the plaintiffs’ motions. McFarland also argues the motions for sanctions did not specify each discovery abuse for which he was sanctioned.

The motions, however, contain the general statement that “Defendant Wilson, with the aid and assistance of attorney McFarland, have [sic] repeatedly delayed discovery and impeded the progress of this case to Plaintiffs’ great detriment.” The motions prayed for “all such further and additional orders which this court deems appropriate.” That prayer authorizes a judgment for any relief within the court’s jurisdiction justified by the proof admitted under the allegations of the motion. See City of Abilene v. Walker, 309 S.W.2d 494, 495 (Tex.Civ.App.—Eastland 1958, no writ). Rule 215 gives the trial court authority to award the amounts awarded as attorney’s fees.

McFarland next claims the trial court did not comply with the hearing procedure set forth in rule 215 and that reasonable notice of the December 8, 1988 hearing was not provided according to Texas Rule of Civil Procedure 21. McFarland’s argument relies on his assumption that the hearing on December 8 was a separate hearing from the one held on December 6 and 7. As we have discussed earlier, that assumption is incorrect.

Rule 21 of the Texas Rules of Civil Procedure requires an application to the court for an order and notice of any hearing on the application be served on the adverse party not less than three days before the time specified for the hearing. Notice was given of the contempt and sanctions hearing October 27, 1988 stating the hearing would be held on October 31, 1988. The hearing was subsequently continued and another notice was filed and served November 18, 1988 stating the hearing on the motion for sanctions and motion for contempt would be held December 5, 1988. Therefore, McFarland received the required notice under rule 21. We overrule McFarland’s fourth point of error.

The trial court’s judgment is affirmed.