Plorin v. Bedrock Foundation & House Leveling Co.

755 S.W.2d 490, 1988 Tex. App. LEXIS 2287, 1988 WL 92667

• Court: Court of Appeals of Texas
• Decided: May 26, 1988
• Docket: 05-87-00272-CV
• Status: Published

Opinions

HECHT, Justice.

The single issue in this case is whether the trial court abused its discretion in dismissing appellants’ cause of action as a sanction for destroying physical evidence while a discovery request was pending. We hold that it did not, and consequently, affirm the trial court’s judgment.

Mark and Susan Plorin contracted with Bedrock Foundation and House Leveling Company, Inc. to repair and level the foundation of the Plorins’ home. Bedrock completed the work on November 7, 1985, but the Plorins were not satisfied. The Plo-rins’ numerous complaints culminated in a formal demand letter to Bedrock dated March 26,1986. Bedrock refused to accede to the Plorins’ demands, and, on June 20, 1986, the Plorins sued Bedrock for breach of contract and violations of the Texas Deceptive Trade Practices Consumer Protection Act.

On July 2, 1986, less than two weeks after suit was filed, attorneys for the Plo-rins and Bedrock agreed that Bedrock would inspect the Plorins’ home on July 13, 1986, for discovery purposes and possible settlement. The Plorins’ attorney confirmed the agreement in writing.¹ At the instance of the Plorins’ attorney, the inspection was rescheduled for August 6, 1986. On that day Bedrock inspected the Plorins’ home and determined that the foundation was completely level. At the conclusion of the inspection the Plorins announced that they had hired another firm to repair the defects of which they were complaining, and that that work had been completed the day before. Thus, all evidence of the claimed defects in Bedrock’s work was destroyed while Bedrock’s request to inspect the home was pending, indeed, after the first inspection date had been rescheduled at the Plorins’ request.

Bedrock moved for sanctions, asserting that the Plorins had abused the discovery process by repairing the claimed defects while Bedrock’s request to inspect the home was pending, thereby denying Bedrock the opportunity to determine the condition of the Plorins’ home. Without notice of a hearing on Bedrock’s motion, the trial court dismissed the Plorins’ claims with prejudice. Because the Plorins had not received notice of the hearing, the trial court granted their motion for reconsideration. Following a hearing and argument by both sides, the trial court again dismissed the Plorins’ action.²

The Plorins argue that the trial court was not empowered to impose discovery sanctions absent their disobedience of a discovery order or their failure to comply with a proper, formal request for discovery. The trial court’s power to sanction discovery abuse is not so limited. Neither disobedience of a discovery order nor failure to comply with a formal discovery request is a prerequisite for imposition of sanctions. TEX.R.CIV.P. 215. In this case the inspection of the Plorins’ home was arranged by agreement of the parties. Discovery by agreement is not only permitted, it is encouraged. See Rule 1.15, Local Rules of District Courts in Dallas County. To fail to enforce undisputed, voluntary discovery agreements with the sanctions authorized by Rule 215 would discourage cooperation among parties. Rule 215 expressly authorizes the trial court to impose sanctions when it finds that “a party is abusing the discovery process in seeking, making or resisting discovery”.

Having concluded that the trial court was empowered to dismiss the Plorins’ action, we must áddress whether it abused its discretion in doing so. The Plorins by their actions totally destroyed essential evidence pertaining to the case while Bedrock’s discovery request was pending. The Plorins might well have been within their rights to repair the alleged defects in Bedrock’s work immediately after it was completed, or in the weeks that followed, or even after suit was filed. For the Plorins to do so after agreeing to Bedrock’s request to inspect the defects of which the Plorins were complaining, even after the agreed to inspection had been postponed at the Plorins’ request, was a flagrant abuse of discovery.

A trial court may impose discovery sanctions both to coerce and to punish a disobedient party, and its action will be altered on appeal only for an abuse of discretion. Southern Pacific Transportation Co. v. Evans, 590 S.W.2d 515, 518-519 (Tex.Civ.App—Houston [1st Dist.] 1979, writ ref’d n.r.e.). The issue is not whether we agree with the sanction imposed by the trial court, but whether we can say that the trial court exceeded its discretion.

The test for abuse of discretion is not, whether in the opinion of the reviewing court, the facts present an appropriate case for trial courts’ actions. Rather, it is a question of whether the court acted without reference to any guiding rules or principles. Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (Tex.Comm.App.—1939, opinion adopted). Another way of stating the test is whether the act was arbitrary or unreasonable. Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 443 (Tex.1984); Landry v. Travelers Insurance Co., 458 S.W.2d 649, 651 (Tex.1970). The mere fact that a trial judge may decide a matter within its discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Southwestern Bell Telephone Co. v. Johnson, 389 S.W.2d 645, 648 (Tex.1965); Jones v. Strayhom, [159 Tex. 421] 321 S.W.2d 290, 295 (Tex.1959).

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-242 (Tex.1985). We have no statement of facts from the hearing before the trial court showing what factors were considered. We therefore assume that the trial court made all necessary findings to support its judgment. Ward v. Cornyn, 700 S.W.2d 281 (Tex.App.—San Antonio 1985, no writ); Harris Data Communications, Inc. v. Dellana, 680 S.W.2d 641, 642 (Tex.App.—Austin 1984, no writ).

The record contains no indication that the trial court was capricious, arbitrary, or unreasonable. On the contrary, the sanction imposed fit the abuse. Having destroyed the evidence pertaining to their claims, the Plorins are barred from asserting them.

The Plorins’ nine points of error are overruled. The judgment is affirmed.

1 . We need not consider whether this agreement was enforceable because it was undisputed.

2 . The dissent argues that the order granting sanctions is not final because it does not dispose of Bedrock’s counterclaim. The language of the order — "This case is dismissed with prejudice.” —confutes the dissent’s argument. As further proof that the order means what it says, it awards Bedrock all attorney fees claimed to have been incurred in the case, which is all the relief to which Bedrock could have been entitled by its counterclaim.