Songer v. Clement

20 S.W.3d 188, 2000 Tex. App. LEXIS 2862, 2000 WL 520528
CourtCourt of Appeals of Texas
DecidedMay 2, 2000
DocketNo. 06-98-00140-CV
StatusPublished
Cited by4 cases

This text of 20 S.W.3d 188 (Songer v. Clement) 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
Songer v. Clement, 20 S.W.3d 188, 2000 Tex. App. LEXIS 2862, 2000 WL 520528 (Tex. Ct. App. 2000).

Opinions

OPINION

Opinion by

Justice GRANT.

Kenneth and Helen Songer sued Billy and Mary Clement, d/b/a Cede Clement & Sons, and Joe Archer, d/b/a Archer Excavating, for personal injuries and property damages. The trial court struck the Son-gers’ pleadings as a discovery sanction and ordered monetary sanctions against the [190]*190Songers.1 The Songers appeal both the sanction order striking their pleadings and the monetary sanction.

The Songers contend the trial court abused its discretion in

1. imposing sanctions based on perjury because the evidence was insufficient to meet the guiding standard,
2. entering the sanction order because it prevented the Songers’ credibility over a disputed issue from being tested at trial,
3. imposing “death penalty” sanctions without first testing lesser available sanctions,
4. instituting “death penalty” sanctions as to the Songers’ claims for property damage, and
5. instituting excessive monetary sanctions.

The Songers filed suit on June 23, 1994, against the Clements and Archer, contending that their operation of a sand mining business was a nuisance and that because of the business the Songers had suffered personal injuries, as well as damages to their property and livestock. Helen Son-ger contends that she suffers from chronic obstructive pulmonary disease and bronchitis, and Kenneth Songer contends that he suffers from bronchitis. The Songers contend that their health problems were caused or aggravated by the Clements’ mining operations. The Songers sought over six million dollars for health-related injuries, diminished earning capacity, mental anguish, and property damages.

Both Songers gave depositions at various times from March 1995 until January 1996. In his deposition, Kenneth Songer stated under oath that he had smoked cigarettes in the 1960s and early 1970s, but that he had not smoked since that time. At the same deposition, he stated that his wife smoked for a few years in the early 1970s, but not since then. Helen Songer testified at her deposition that she had smoked in the early 1970s, but had quit smoking for a while. She testified that she still smoked “socially” or “intermittently, at holidays” for a while, but at the time of her deposition, she did not smoke at all. Helen Songer testified that, at the time of the deposition, she could not recall smoking since the mid-1980s, but possibly might have smoked socially since that time. But she testified unequivocally that she had not smoked, even socially, in the 1990s.

At trial, Kenneth Songer testified as to his and his wife’s smoking habits, reiterating that neither one of them currently smoked, or had smoked since, at the latest, some time in the 1980s. The Clements then sought to impeach Kenneth Songer’s testimony with medical records and surveillance tapes. The doctor’s records were dated November 1991 and showed that Kenneth Songer had reported to the doctor that on that date he was smoking up to two packs of cigarettes a day and had for thirty years. Helen Songer’s medical records were dated June 1994 and stated that she had reported smoking one to one and a half packs of cigarettes a day from 1960 to that date. The surveillance tapes taken by the Clements’ investigator on April 13-14, 1996 and on May 2-3, 1997 showed both Songers smoking throughout the day.

After this evidence had been presented, the court removed the jury and met with counsel in chambers. The trial court also reviewed deposition testimony of Helen Songer, where she testified about a conversation she and her husband had engaged in about finding a way to stop the Clements’ operations before the operations had even begun.

After reviewing the evidence, the trial judge advised the parties that he believed the Songers had committed perjury and [191]*191aggravated perjury, and directed a verdict against the Songers. The Clements filed two motions for sanctions, and on the Clements’ request, the judge set a hearing on the motions. One Motion for Sanctions was based on Tex.R. Crv. P. 13, which addresses claims that are groundless and filed in bad faith; one Motion for Sanctions was based on Tex.R. Crv. P. 215, which addresses discovery abuse.

At the hearing on the Clements’ motions, after examining the evidence, the trial court ordered that the Songers’ pleadings be stricken and assessed monetary damages of $43,659.00 against them in favor of the Clements. On September 8, 1998, the trial judge held a hearing on the Songers’ Motion for New Trial. The trial court granted the Songers a new trial after the directed verdict, but denied them a new trial on their sanctions. The trial court later entered a Final Judgment that dismissed the Songers’ case with prejudice.

The Songers appeal both the striking of their pleadings and the monetary sanctions.

The Songers argue that the trial court abused its discretion in imposing “death penalty” sanctions, because doing so prevented the Songers’ credibility over a disputed issue from being tested at trial. They contend that the issue of their credibility was a jury issue and that the trial court erred by not allowing the jury to decide if they were lying.

In reviewing a trial court’s imposition of sanctions, the appellate court makes an independent inquiry of the entire record.2 We will reverse the trial court’s decision only if we find an abuse of discretion.3 The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles.4

The trial court’s order granting sanctions, the Final Judgment, the Findings of Fact and Conclusions of Law, and the Supplemental Findings of Fact and Conclusions of Law are all based on sanctions for a violation of Tex.R. Crv. P. 215, which concerns discovery abuse. The order granting sanctions is captioned “Order Granting Sanctions Under Rule 215.” In the findings of fact and conclusions of law, the trial court states that the Songers had “engaged in a pattern of discovery abuse,” that the Songers’ “commission of aggravated perjury during pretrial depositions constitutes discovery abuse sanctionable under Rule 215,” that the Songers’ live petition should be stricken “as a sanction for the Songers’ discovery abuse,” that the Songers were directly responsible for the discovery abuse, and that the sanctions serve the purpose of punishing a party that had violated the rules of discovery.

We observe that the Clements filed another Motion for Sanctions, premised on Tex.R. Civ. P. 13, concerning groundless pleadings that are filed either in bad faith or to harass another party. The trial judge does not address the Rule 13 motion. When an order of sanctions refers to one specific rule, either by citing the rule, tracking its language, or both, an appellate court is confined to determining whether the sanctions are appropriate under that particular rule. Aldine Indep. Sch. Dist v. Baty, 946 S.W.2d 851, 852 (Tex.App.Houston [14th Dist.] 1997, no writ). Therefore, we cannot address whether Rule 13 sanctions were appropriate in the present case.

Rule 215 concerns discovery abuse in a wide variety of contexts and the sanctions available.

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Related

Cathey v. Meyer
115 S.W.3d 644 (Court of Appeals of Texas, 2003)
John Cathey v. Larry Meyer and John Glover
Court of Appeals of Texas, 2003
Songer v. Archer
23 S.W.3d 139 (Court of Appeals of Texas, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
20 S.W.3d 188, 2000 Tex. App. LEXIS 2862, 2000 WL 520528, Counsel Stack Legal Research, https://law.counselstack.com/opinion/songer-v-clement-texapp-2000.