Robert A. Kugle Robert L. Wilson Andrew Toscano Bridgett E. Fabila and Juan Antonio Fabila, Sr., Individually and as Representatives of the Estates of Myriam Arlene Fabila, and John Anthony Fabila, Juan A. Fabila, Sr. v. DaimlerChrysler Corporation and North Star Dodge Sales, Inc.

• Court: Court of Appeals of Texas
• Decided: August 21, 2002
• Docket: 04-00-00617-CV
• Status: Published

Opinion

DISSENTING OPINION No. 04-00-00617-CV

Robert A. KUGLE; Robert L. Wilson, III; Andrew E. Toscano; Bridgett E. Fabila and Juan Antonio Fabila, Jr., Individually and as Representatives of the Estate of Myriam Arlene Fabila, deceased, and of the Estate of John Anthony Fabila, deceased; Juan Antonio Fabila, Sr. and Ana Elva Fabila, Individually and as Next Friends of Guadalupe Fabila Hernandez, a minor, and

as Representatives of the Estate of Juani Margarita Fabila, deceased, and of the Estate of

Sandra Lorena Fabila Hernandez, deceased,

Appellants v. DAIMLERCHRYSLER CORP. and North Star Dodge Sales, Inc., Appellees From the 288th Judicial District Court, Bexar County, Texas Trial Court No. 98-CI-07745 Honorable David Peeples, Judge Presiding

Opinion by: Karen Angelini, Justice

Dissenting opinion by: Catherine Stone, Justice, joined by Alma L. López, Justice

Sitting: Phil Hardberger, Chief Justice (not participating)

Alma L. López, Justice

Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: August 21, 2002

This case presents a sordid set of facts revealing attorney misconduct. As I wrote on original submission of this case, the trial court properly imposed sanctions against the attorneys; accordingly, on en banc submission I concur with the majority's rulings in all regards but the dismissal of the Fabilas' suit. However, I respectfully dissent from that portion of the majority opinion which affirms the dismissal of the underlying suit.

The trial court's dismissal of the underlying lawsuit appears to be based on its findings that the Fabilas had knowledge of the results of the July 1998 investigation and Bridgett's allegedly perjured testimony. However, there is no evidence in the record from which the trial court could reasonably infer that the Fabilas had knowledge of the investigators' findings in July of 1998. Persing testified that he was socially introduced to the Fabilas upon arriving at the salvage yard, but he did not discuss his findings with them or even keep track of where they went after the introduction. Kugle testified that he did not disclose the investigators' findings to the Fabilas, and the Fabilas were only present at the salvage yard to identify the car for inspection. Bridgett testified that the Fabilas arrived at the salvage yard separately from the attorneys and investigators and were not informed of the investigators' findings. Therefore, I do not believe the evidence supports the imposition of sanctions against the Fabilas based on the attorneys' fraudulent conduct regarding the July 1998 investigation.

The majority contends that the Fabilas appeared at the inspection "specifically for the purpose of discovering if there was something wrong with the vehicle's steering mechanism." (slip opinion at 16). Our record contains no evidence to support this contention. The only evidence is that the Fabilas were present at the salvage yard for the purpose of identifying the vehicle involved in the accident. Nor is there any evidence that the Fabilas were physically present by the vehicle as it was inspected. Rather, the only evidence in the record is Persing's testimony that he was socially introduced to the Fabilas "on the exterior of the salvage yard" and Bridgett's testimony that she was "standing by the entrance of the junkyard." The majority concludes that the trial court could reasonably infer that the plaintiffs were informed of the results of the investigation by their presence at the salvage yard and the subsequent occurrence of a conversation with their attorneys. The Fabilas' presence and the subsequent conversation, however, are merely circumstantial evidence. "[W]hen circumstantial evidence is so slight that any plausible inference is purely a guess, it is in legal effect no evidence," because "suspicion and conjecture are not evidence." Lozano v. Lozano, 52 S.W.3d 141, 148, 152 (Tex. 2001) (Phillips, C.J., concurring and dissenting). The trial court in this case was not permitted to infer that the attorneys informed the Fabilas of the results of Persing's investigation because the trial court is not permitted to guess about the subject of the conversation, particularly in view of Kugle's testimony that the conversation revolved around the injuries to one of the plaintiffs, not the test results.

The only other basis for the "death penalty" sanctions assessed against the Fabilas was the trial court's finding that the Fabilas pursued a lawsuit contending that the accident was caused by steering failure despite Bridgett's prior statements regarding driver negligence. However, the inconsistency in Bridgett's testimony does not support the "death penalty" sanctions assessed by the trial court.

Although punishment and deterrence are legitimate purposes for sanctions, they do not justify trial by sanctions. TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 918 (Tex. 1991). When a trial court strikes a party's pleadings and dismisses its action for abuse of the discovery process, the court adjudicates the party's claims without regard to their merits but based instead upon the party's conduct of discovery. Id. Discovery sanctions should not be used to adjudicate the merits of a claim or defense unless a party's obstruction of the discovery process justifies the presumption that the claim or defense lacks merit. Id.

A trial court may not effectively adjudicate the merits of a case based on testimony of a party during a sanctions hearing because he was later impeached on testimony given at that hearing. Lanfear v. Blackmon, 827 S.W.2d 87, 91 (Tex. App.--Corpus Christi 1992, orig. proceeding [leave denied]). The witness' credibility should be tested when the case is tried. Id. Otherwise, a trial court could at any time interrupt a trial proceeding if it believed a witness was being untruthful, and simply enter a default against the party procuring that witness for that reason. Id. A "death penalty" sanction is not proper punishment for what was perceived by the court to be perjured testimony. Id. Although the trial court's conclusions of law recite that "lesser sanctions would be inappropriate," the record does not reflect that the trial court considered lesser sanctions or why lesser sanctions would be ineffective. Id.; see also Fletcher v. Blair, 874 S.W.2d 83, 86 (Tex. App.--Austin 1994, writ denied) (finding abuse of discretion where lesser sanctions not considered despite plaintiff's false testimony).

The consideration of lesser sanctions is particularly important in this case. Bridgett was only one of the plaintiffs who filed the lawsuit. Although the court perceived Bridgett's inconsistency regarding the events preceding the accident to be perjury, the testimony of the officers and the ambulance driver Ramirez regarding the statement allegedly made by Bridgett was not without question. See Fort Worth Hotel Ltd. P'ship v. Enserch Corp., 977 S.W.2d 746, 761 (Tex. App.--Fort Worth 1998, no pet.) (that a jury believes one party's account does not mean other party's witnesses perjured themselves). Both Officer Morales and Ramirez stated that Bridgett was calm despite her knowledge that her infant son was dead, her infant daughter was in grave condition, and her belief that her husband was dead. Furthermore, Ramirez testified that Bridgett was calm despite her knowledge that her infant daughter required cardiac resuscitation on three occasions during the trip to the Eagle Pass hospital and the doctor's statement that her daughter was in grave condition. The police report did not contain the statement Bridgett allegedly made to Officer Morales, nor did it indicate on the pre-printed form that Juan's sleeping was a contributing cause to the accident. Finally, Officer Villanueva testified that the statement was taken at the police station, not the hospital, at a time when Bridgett could not have been at the police station. In view of these circumstances raising questions with regard to the prior statement allegedly made by Bridgett, a "death penalty" sanction against all of the plaintiffs is not proper punishment for what was perceived by the court to be perjured testimony. Lanfear, 827 S.W.2d at 91.

The majority relies heavily on Daniel v. Kelley Oil Corp. in seeking to uphold the "death penalty" sanction. 981 S.W.2d 230 (Tex. App.--Houston [1st Dist.] 1998, pet. denied). However, in Daniel, expert testimony was presented that the plaintiff fabricated an audio cassette recording as evidence of sexual harassment. 981 S.W.2d at 231. In this case, there is no fabricated evidence. There is only a question as to whether Bridgett made the prior statement. Furthermore, the Fabilas' newly-retained attorney argued at the sanctions hearing that one of the claims remaining in the case was a claim relating to "crashworthiness." ⁽¹⁾ In crashworthiness cases, the alleged defect need not be the cause of the collision that precipitated the injury. General Motors Corp. v. Castaneda, 980 S.W.2d 777, 780 (Tex. App.--San Antonio 1998, pet. denied). Instead, the alleged defect need only have enhanced the injury. Id. Accordingly, the jury apportions responsibility in crashworthiness cases between all whose action or products combine to cause the entirety of the plaintiff's injuries. Id. at 780-81. Therefore, even if a jury were to believe that Juan fell asleep and the car rolled after Bridgett turned the steering wheel, the jury could still find that some defect in the car enhanced the injuries sustained by the victims of the accident. Because "death penalty" sanctions were inappropriate for what the trial court perceived to be perjury by one of the plaintiffs and because the trial court did not consider lesser sanctions, the trial court abused its discretion in dismissing the lawsuit. Accordingly, I dissent from the majority's contrary ruling.

PUBLISH

1. The Fabilas' attorney stated that the current pleadings can be read as permitting this theory of liability, and since the defendants have been reimbursed for the attorneys' fees expended in the prior attorneys' pursuit of the failed decoupler theory, the defendants are not prejudiced by the pursuit of the crashworthiness theory. The majority contends that the pleadings contain no allegations that can be construed as a "crashworthiness" claim. On the contrary, the pleadings contain the following allegation, "The malfunction and defective condition of the subject motor vehicle, including its steering column system, was a producing cause of the Plaintiffs' injuries and damages, and the untimely deaths of decedents for which the Defendants are responsible to the Plaintiffs under the doctrine of strict liability." Therefore, the allegation of malfunction and defective condition is a broad allegation, and although the allegation expressly includes the defective steering column, it is not limited to that defect. Finally, the majority's contention that the Fabilas could not prove a crashworthiness claim in view of the existing discovery and designated experts is for the trial court to decide at a summary judgment hearing, not for this court to decide on appeal.