OPINION
CORNYN, Justice.
The opinion of February 10, 1993 is withdrawn and the following is substituted therefor. The issue presented is whether mandamus should issue to direct the trial court1 to vacate ' its postverdict order granting death penalty discovery sanctions based on pretrial discovery abusé and trial misconduct. We hold that the trial court abused its discretion and that Relator has no adequate remedy by appeal;2 thus, we conditionally grant the writ and direct the trial court to vacate its death penalty sanction order.
I.
David Craig filed the lawsuit out of which this proceeding arises against Debbie James and Remington Arms Company, Inc., for injuries he sustained when he was shot in the right thigh by a bullet fired from a Remington Model 700 rifle. Craig alleged that James negligently handled the firearm and that Remington was guilty of ordinary and gross negligence, as well as strictly liable for the unreasonably dangerous design of the rifle that permitted it to discharge without touching the trigger.
Discovery disputes eventually led to Respondent’s imposition of a $25,000 sanction against Remington on February 9, 1989, and the appointment of a special master to hear and make recommendations to the tri[169]*169al court on all pretrial discovery disputes.3 At trial, Craig presented his case-in-chief for three and one-half weeks and rested. Remington then rested without having presented any evidence. The jury returned a verdict exonerating Remington of all liability for Craig’s injuries. Following a hearing on Remington’s Motion for Judgment on the Verdict, Respondent declared a mistrial, struck Remington’s pleadings, and rendered a default judgment against Remington on issues of liability for negligence and gross negligence. Respondent also prohibited Remington from conducting further discovery, from seeking indemnity, contribution, or any offset based upon the comparative responsibility of any other party or person, and ordered that upon retrial Remington could not introduce mitigating evidence on the issue of punitive damages. We set forth in the margin the court’s findings in support of its sanctions order.4
[170]*170Remington urges three grounds in support of its claim for mandamus relief: that Respondent could not properly sanction Remington for pretrial discovery abuse after the trial had taken place, that the sanctions order cannot be supported by counsel’s misconduct at trial, and that the death penalty sanction does not meet the requirements of TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex.1991).5 We agree that the Respondent committed each of these errors and conclude that none of the alleged instances of abuse support the death penalty sanctions ordered by the trial court.
II.
Remington contends that no trial court may impose discovery sanctions post-trial for pretrial discovery abuse. We cannot agree. Such a rule would absolutely bar imposition of sanctions for discovery abuse revealed for the first time during or after the trial. We do, however, agree that the failure to obtain a pretrial ruling on discovery disputes that exist before commencement of trial constitutes a waiver of any claim for sanctions based on that conduct. See Olney Savings & Loan Ass'n v. Farmers Market of Odessa, Inc., 764 S.W.2d 869, 871 (Tex.App.—El Paso 1989, writ denied); 3 Roy W. McDonald, Texas Civil Practice § 17.9. Here, of the twelve incidents of misconduct cited in the sanctions order, nine concern pretrial conduct of which Craig was aware before trial. We hold that Craig waived any objections to these matters by failing to request a pretrial hearing on the alleged discovery abuse and by requesting a preferential trial setting.6 See McKinney v. National Union Fire Ins. Co., 772 S.W.2d 72, 75 (Tex.1989); Rule 3.02(a)(4), Local Rules of Practice of the 23rd Judicial Districts of Texas.
On the other hand, if pretrial discovery abuse is not revealed until after the trial has begun, or even after trial, a party cannot be said to have waived a claim for sanctions. Craig argues that one of the incidents supporting death penalty sanctions was Remington’s attempt to have one of its experts, who had been called to the stand by Craig, testify on matters for which he had not been disclosed as an expert witness. Craig asserts that, at least in part, the trial court’s sanction was justified because Remington attempted to have a designated firearms expert testify on the allegedly unrelated subject of ballistics. Craig’s lawyer objected to Remington’s failure to disclose this subject of anticipated testimony and the trial court excluded all testimony on ballistics. Unquestionably, the trial court has the power during trial to sanction nondisclosure of information requested during discovery in this manner. Tex.R.Civ.P. 215(5); See also Al[171]*171varado v. Farah Mfg. Co., 830 S.W.2d 911, 915 (Tex.1992); Ramirez v. Volkswagen of Am., Inc., 788 S.W.2d 700, 703 (Tex.App.—Corpus Christi 1990, writ denied). The Respondent also had the power to assess other suitable sanctions, singularly or in combination, within limitations. See Alvarado, 830 S.W.2d at 915; Ramirez v. Otis Elevator Co., 837 S.W.2d 405, 413 (Tex.App.—Dallas 1992, writ denied).
However, because Craig argues that this instance of nondisclosure, in combination with the trial court’s other findings, supports the death penalty sanction, we must consider whether such nondisclosure justifies the court’s ultimate sanction under TransAmerican standards. As we recently reiterated, for a death penalty sanction to be just there must be a direct relationship between the offensive conduct and the sanction imposed, and the sanction imposed must not be excessive. Chrysler Corp. v. Blackmon, 841 S.W.2d 844 (Tex.1992). Death penalty sanctions for this single incident of discovery abuse fails to meet the TransAmerican standard in several ways.
First, no direct relationship exists between failing to designate the witness as a ballistics expert and the striking of the pleadings. While there are certainly occasions when nondisclosure of anticipated evidence by an expert could cause prejudice to the opposing party, that was not the case here. Because Respondent did not admit the ballistics testimony before the jury, the record reveals no prejudice to Craig as a result of the nondisclosure.
Second, striking Remington’s pleadings was plainly excessive, especially after the trial court excluded the undisclosed testimony. The legitimate purposes of discovery sanctions—securing compliance with discovery, deterring abusive discovery practices, and punishing violators—were accomplished by the court’s refusal to allow Remington the benefit of the undisclosed ballistics testimony.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
CORNYN, Justice.
The opinion of February 10, 1993 is withdrawn and the following is substituted therefor. The issue presented is whether mandamus should issue to direct the trial court1 to vacate ' its postverdict order granting death penalty discovery sanctions based on pretrial discovery abusé and trial misconduct. We hold that the trial court abused its discretion and that Relator has no adequate remedy by appeal;2 thus, we conditionally grant the writ and direct the trial court to vacate its death penalty sanction order.
I.
David Craig filed the lawsuit out of which this proceeding arises against Debbie James and Remington Arms Company, Inc., for injuries he sustained when he was shot in the right thigh by a bullet fired from a Remington Model 700 rifle. Craig alleged that James negligently handled the firearm and that Remington was guilty of ordinary and gross negligence, as well as strictly liable for the unreasonably dangerous design of the rifle that permitted it to discharge without touching the trigger.
Discovery disputes eventually led to Respondent’s imposition of a $25,000 sanction against Remington on February 9, 1989, and the appointment of a special master to hear and make recommendations to the tri[169]*169al court on all pretrial discovery disputes.3 At trial, Craig presented his case-in-chief for three and one-half weeks and rested. Remington then rested without having presented any evidence. The jury returned a verdict exonerating Remington of all liability for Craig’s injuries. Following a hearing on Remington’s Motion for Judgment on the Verdict, Respondent declared a mistrial, struck Remington’s pleadings, and rendered a default judgment against Remington on issues of liability for negligence and gross negligence. Respondent also prohibited Remington from conducting further discovery, from seeking indemnity, contribution, or any offset based upon the comparative responsibility of any other party or person, and ordered that upon retrial Remington could not introduce mitigating evidence on the issue of punitive damages. We set forth in the margin the court’s findings in support of its sanctions order.4
[170]*170Remington urges three grounds in support of its claim for mandamus relief: that Respondent could not properly sanction Remington for pretrial discovery abuse after the trial had taken place, that the sanctions order cannot be supported by counsel’s misconduct at trial, and that the death penalty sanction does not meet the requirements of TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex.1991).5 We agree that the Respondent committed each of these errors and conclude that none of the alleged instances of abuse support the death penalty sanctions ordered by the trial court.
II.
Remington contends that no trial court may impose discovery sanctions post-trial for pretrial discovery abuse. We cannot agree. Such a rule would absolutely bar imposition of sanctions for discovery abuse revealed for the first time during or after the trial. We do, however, agree that the failure to obtain a pretrial ruling on discovery disputes that exist before commencement of trial constitutes a waiver of any claim for sanctions based on that conduct. See Olney Savings & Loan Ass'n v. Farmers Market of Odessa, Inc., 764 S.W.2d 869, 871 (Tex.App.—El Paso 1989, writ denied); 3 Roy W. McDonald, Texas Civil Practice § 17.9. Here, of the twelve incidents of misconduct cited in the sanctions order, nine concern pretrial conduct of which Craig was aware before trial. We hold that Craig waived any objections to these matters by failing to request a pretrial hearing on the alleged discovery abuse and by requesting a preferential trial setting.6 See McKinney v. National Union Fire Ins. Co., 772 S.W.2d 72, 75 (Tex.1989); Rule 3.02(a)(4), Local Rules of Practice of the 23rd Judicial Districts of Texas.
On the other hand, if pretrial discovery abuse is not revealed until after the trial has begun, or even after trial, a party cannot be said to have waived a claim for sanctions. Craig argues that one of the incidents supporting death penalty sanctions was Remington’s attempt to have one of its experts, who had been called to the stand by Craig, testify on matters for which he had not been disclosed as an expert witness. Craig asserts that, at least in part, the trial court’s sanction was justified because Remington attempted to have a designated firearms expert testify on the allegedly unrelated subject of ballistics. Craig’s lawyer objected to Remington’s failure to disclose this subject of anticipated testimony and the trial court excluded all testimony on ballistics. Unquestionably, the trial court has the power during trial to sanction nondisclosure of information requested during discovery in this manner. Tex.R.Civ.P. 215(5); See also Al[171]*171varado v. Farah Mfg. Co., 830 S.W.2d 911, 915 (Tex.1992); Ramirez v. Volkswagen of Am., Inc., 788 S.W.2d 700, 703 (Tex.App.—Corpus Christi 1990, writ denied). The Respondent also had the power to assess other suitable sanctions, singularly or in combination, within limitations. See Alvarado, 830 S.W.2d at 915; Ramirez v. Otis Elevator Co., 837 S.W.2d 405, 413 (Tex.App.—Dallas 1992, writ denied).
However, because Craig argues that this instance of nondisclosure, in combination with the trial court’s other findings, supports the death penalty sanction, we must consider whether such nondisclosure justifies the court’s ultimate sanction under TransAmerican standards. As we recently reiterated, for a death penalty sanction to be just there must be a direct relationship between the offensive conduct and the sanction imposed, and the sanction imposed must not be excessive. Chrysler Corp. v. Blackmon, 841 S.W.2d 844 (Tex.1992). Death penalty sanctions for this single incident of discovery abuse fails to meet the TransAmerican standard in several ways.
First, no direct relationship exists between failing to designate the witness as a ballistics expert and the striking of the pleadings. While there are certainly occasions when nondisclosure of anticipated evidence by an expert could cause prejudice to the opposing party, that was not the case here. Because Respondent did not admit the ballistics testimony before the jury, the record reveals no prejudice to Craig as a result of the nondisclosure.
Second, striking Remington’s pleadings was plainly excessive, especially after the trial court excluded the undisclosed testimony. The legitimate purposes of discovery sanctions—securing compliance with discovery, deterring abusive discovery practices, and punishing violators—were accomplished by the court’s refusal to allow Remington the benefit of the undisclosed ballistics testimony. Exclusion of the ballistics testimony alone enforced our discovery rules requiring full disclosure, demonstrated that such abuse would not likely be tolerated in the future, and punished Remington by denying it the benefit of the undisclosed testimony. See Chrysler, 841 S.W.2d at 849.
Finally, consistent with due process guarantees, death penalty sanctions should be used only when the sanctioned party’s conduct “justifies a presumption that its claims or defenses lack merit.” Id. at 850. This record, as evidenced by the jury’s verdict, rebuts rather than supports such an inference.
The court also based the sanctions order on the finding that Remington attempted to introduce into evidence an aerial photograph that had not been produced during discovery. Remington’s counsel explained in response to objection that he had shown it to opposing counsel and had supplied the name and phone number of the photographer so that plaintiff could order a copy if desired. Apparently satisfied with that explanation, Respondent admitted the photograph into evidence. If Respondent was not satisfied with Remington’s explanation, the proper sanction would have been to exclude the photograph from evidence. Tex.R.Civ.P. 215(5) (requiring the exclusion of evidence that was not produced during discovery); see also First Interstate Bank v. Bland, 810 S.W.2d 277, 287-88 (Tex.App.—Fort Worth 1991, no writ).
III.
The remaining findings deal with the improper conduct and bad faith of Remington’s counsel at trial. Craig alleges that during trial Remington’s attorney improperly made sidebar remarks, displayed contempt for the court, made frivolous objections, and communicated with the jury.7 The sanctions order cannot, however, be supported by findings of trial misconduct, simply because Rule 215 is addressed to pretrial discovery misconduct only. In American Central Insurance Co. v. Texhoma Stores, 401 S.W.2d 593 (Tex.1966), [172]*172this court declared that Texas Rules of Civil Procedure 167 and 170, the predecessor rules to current Rule 215, are applicable to pretrial discovery matters only, not conduct occurring in the course of the trial. See also Lehtonen v. Clarke, 784 S.W.2d 945, 947-48 (Tex.App.—Houston [14th Dist.] 1990, writ denied) (forbidding the striking of a motion for new trial as a discovery sanction). The trial conduct supporting the court’s sanctions order in this case had nothing to do with discovery, and cannot form the basis for a discovery sanction under the plain language of Texas Rule of Civil Procedure 215.
The trial court does, however, have comprehensive inherent and statutory power to discipline errant counsel for improper trial conduct in the exercise of its contempt powers. See Ex parte Pryor, 800 S.W.2d 511, 512 (Tex.1990); see also Tex.Gov’t Code § 21.002. Trial counsel are also subject to disciplinary action for improper trial conduct. See Tex.Disciplinary R.Prof.Conduct 3.04 (Fairness in Adjudicatory Proceeding), 3.06 (Maintaining Integrity of Jury System) (1992), reprinted in Tex.Gov’t Code Ann., tit. 2, subtit. G app. (Vernon Supp.1993) (State Bar Rules art. 10 § 9). Indeed, the court itself is obligated to refer a lawyer to appropriate authorities to answer for unprofessional conduct of which the judge is aware. Tex.Code of Judicial Conduct, Canon 3(B)(3). The court may also admonish counsel and instruct the jury to disregard improper comments or arguments by counsel, which occurred here. When Craig’s attorney objected to the sidebar comments during the trial,8 Respondent overruled some of the objections and sustained others. Likewise, the judge gave the jury a lengthy instruction concerning counsel’s improper communication with the jury on Valentine’s Day but refused to hold Remington’s attorney in contempt of court as was urged by Craig’s counsel. Respondent, however, was not justified in basing a discovery sanction under Rule 215 on attorney misconduct at the trial.9
IV.
For these reasons, we conditionally grant the writ of mandamus and direct Respondent to vacate that part of his order striking Remington’s pleadings, granting a default judgment against Remington on issues of liability for negligence and gross negligence, prohibiting Remington from seeking indemnity, contribution, or any offset based upon the comparative responsibility of any other party or person, and prohibiting Remington from offering mitigating evidence at retrial on the issue of punitive damages. The writ will not issue unless Respondent fails to vacate the sanctions order of March 21, 1990, in accordance with this opinion.