Ogunboyejo v. Prudential Property & Casualty Co.

844 S.W.2d 860, 1992 Tex. App. LEXIS 3100, 1992 WL 373033
CourtCourt of Appeals of Texas
DecidedDecember 15, 1992
Docket6-92-070-CV
StatusPublished
Cited by8 cases

This text of 844 S.W.2d 860 (Ogunboyejo v. Prudential Property & Casualty Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ogunboyejo v. Prudential Property & Casualty Co., 844 S.W.2d 860, 1992 Tex. App. LEXIS 3100, 1992 WL 373033 (Tex. Ct. App. 1992).

Opinions

OPINION

GRANT, Justice.

Olawale Ogunboyejo appeals from the dismissal of his civil action. The trial court found that Ogunboyejo altered a certified mail receipt and sanctioned him by dismissing the case with prejudice and ordering his counsel to pay $1,000.

Ogunboyejo contends that the trial court erred in dismissing the lawsuit because (1) there is no allegation that either counsel or client signed any pleading in bad faith or abused discovery; and, (2) there was no or insufficient evidence to show that any instrument was signed in bad faith or that the discovery process was abused. He also argues that even if the pleadings were found to be signed in bad faith, the lawsuit should not have been dismissed. He further contends that the court erred by denying his fundamental right of due process by imposing sanctions without giving him the opportunity to respond.

On February 6, 1992, Ogunboyejo filed a motion for partial summary judgment. This motion was based on the ground that, among other things, Prudential was late in responding to Ogunboyejo’s first set of interrogatories and requests for admissions.

There is evidence of two separate mailings of documents to Prudential. According to Prudential’s file stamps made upon receipt, the initial mailing was received on May 17, 1991, and the second mailing was received on May 29, 1991. Postal Service records confirmed registered delivery of documents bearing the numbers hereafter discussed on those dates. Prudential responded to the request for admissions of fact and interrogatories on June 24, 1991.

An extensive hearing was held at which some documents were entered into evidence, other documents were discussed and considered by counsel and court without objection, and testimony and prolonged argument was heard by the court.

The trial court’s order of dismissal states:

[T]he Plaintiff’s attorney, JOSEPH ON-WUTEAKA, or someone at his direction, altered a United States Postal Service certified mail receipt card (green card) to support the Plaintiff’s Motion for Partial Summary Judgment. The court finds that the Plaintiff’s Motion for Partial Summary Judgment has therefore been filed in bad faith and is groundless.

Based upon this finding and under the authority of Tbx.R.Civ.P. 13 and 215, the trial court dismissed the case and imposed a [862]*862sanction of $1,000 on plaintiffs counsel.1

In reviewing the evidence for legal and factual sufficiency, we must first examine the record for any probative evidence to support the finding, ignoring all contrary evidence. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). If we find some probative evidence, we then test the factual sufficiency of that evidence by examining the entire record to determine whether the finding is clearly wrong and unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 662 (1951).

Ogunboyejo filed his motion for summary judgment on the ground that Prudential was late in responding to discovery, based upon his business records affidavit stating that Prudential’s counsel received his interrogatories and requests for admissions on May 17,1991, the date of the first mailing. He buttressed this claim with certified mail receipt “green card” number P355051 738. The card indicated only that a supplemental response to request for production was received by Prudential’s counsel on May 17, 1991. However, the white card preprinted number P355051738 contained a notation that it included a request for production, request for admissions/interrogatories and supplemental answers.

If the request for interrogatories and admissions was actually received on May 17, Prudential’s response to discovery was not timely. However, the trial court determined that the green card from the May 17 mailing had been altered by changing the number 5 to 8 so that it would appear that P3550573# had been delivered at the earlier date when P355051735 was actually delivered. The trial court had the green card before it and could make a factual finding that the card had been altered. No green card for the P35505173 5 mailing was entered into evidence.

Prudential submitted an affidavit prepared by a claims clerk with the U.S. postal service in Houston, which listed every certified mail article that came to Prudential’s law offices on the critical dates. That affidavit indicates that P355051735 was delivered and received on May 17. It also states that P35505738 was actually delivered and received on May 29, although the altered green card P35505738 indicated a delivery date of May 17. This was some evidence to support the trial court’s conclusion that the receipt had been intentionally altered to aid the plaintiff’s effort to obtain a summary judgment and that counsel for the plaintiff either altered the document or that it was done at his direction.

In addition to this evidence, counsel for the plaintiff offered testimony from his legal assistant who had worked for counsel during the relevant period. She testified that she had not made any such alteration at any time. After reviewing the entire record, we find that there was sufficient evidence to support the trial court’s finding. These points of error are overruled.

[863]*863SANCTION AGAINST COUNSEL

Sanctions may be imposed for violation of Rule 13 in the manner provided by Rule 215(2)(b). If the court finds, based on the evidence presented, that a party is abusing the discovery process, the trial court may, after notice and hearing, impose any appropriate sanction authorized by Rule 215(2)(b). However, any sanction imposed must be just, as required by the rule. The choice of sanctions is for the trial court to determine, and so long as the sanctions are within the authority vested in the trial court they will not be overturned unless they constitute a clear abuse of discretion. Glass v. Glass, 826 S.W.2d 683 (Tex.App.—Texarkana 1992, writ denied). An abuse of discretion is shown when there is no reasonable relationship between the harm done and the sanctions assessed. Whether an imposition of sanctions is just is measured by determining (1) whether a direct relationship exists between the offensive conduct and the sanctions imposed; and (2) whether the sanctions are excessive — the punishment must fit the crime. Transamerican Natural Gas v. Powell, 811 S.W.2d 913, 917 (Tex.1991); see Braden v. Downey, 811 S.W.2d 922, 930 (Tex.1991).

The trial court abuses its discretion if the sanction imposed does not further one of the purposes that sanctions are intended to further. Bodnow Corp. v. City of Hondo, 721 S.W.2d 839, 840 (Tex.1986); McRae v. Guinn Flying Services, 778 S.W.2d 189, 191 (Tex.App.—Houston [1st Dist.] 1989, no writ). In reviewing an abuse of discretion, an appellate court must determine whether the trial court acted without reference to guiding rules and principles. Downer v. Aquamarine Operators, Inc.,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Marla Cuellar v. Omar Maldonado
Court of Appeals of Texas, 2015
Wal-Mart Stores, Inc. v. Lynch
981 S.W.2d 353 (Court of Appeals of Texas, 1998)
Rabie v. Sonitrol of Houston, Inc.
982 S.W.2d 194 (Court of Appeals of Texas, 1998)
Union City Body Co., Inc. v. Ramirez
911 S.W.2d 196 (Court of Appeals of Texas, 1995)
Bradt v. West
892 S.W.2d 56 (Court of Appeals of Texas, 1994)
Smart v. Winslow
868 S.W.2d 409 (Court of Appeals of Texas, 1993)
Ogunboyejo v. Prudential Property & Casualty Co.
844 S.W.2d 860 (Court of Appeals of Texas, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
844 S.W.2d 860, 1992 Tex. App. LEXIS 3100, 1992 WL 373033, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ogunboyejo-v-prudential-property-casualty-co-texapp-1992.