546 S.W.3d 866
Tex. App.2018Background
- Plaintiff Teel et al. sued multiple defendants including Titeflex (represented by Bickel & Brewer and William A. Brewer III) in a products-liability/wrongful-death case arising from a 2012 Lubbock house fire allegedly linked to CSST (corrugated stainless steel tubing).
- Brewer authorized a 300‑person telephone survey in Lubbock in May 2014; survey questions were drafted/approved by his firm and intended to test or shape attitudes about CSST and responsibility for the fire.
- Plaintiffs and several defendants moved for emergency relief and sanctions, alleging the survey was a push‑poll that contacted parties, witnesses, and court‑connected individuals and sought to taint the venire and intimidate witnesses.
- After hearings, the trial court found Brewer acted intentionally and in bad faith, that the survey threatened core judicial functions (impartial jury, witness testimony), and ordered Brewer (individually) to pay substantial fees/expenses and complete ethics CLE hours; the underlying merits case later settled.
- Brewer appealed, arguing (inter alia) that surveys are lawful, bad faith was not shown (only negligence), the court lacked a finding of significant interference with a core function, sanctions were excessive, the court ignored evidence (an affidavit), and denied a continuance.
Issues
| Issue | Plaintiff's Argument (Brewer) | Defendant's Argument (Opponents) | Held |
|---|---|---|---|
| Whether conducting the pretrial telephone survey is per se sanctionable | Surveying to test themes is common and not prohibited; absence of a rule banning it means it is lawful | The particular survey was implemented to influence the venire and intimidate witnesses; trial court may police such abuses | Court: Surveys are not per se sanctionable, but this survey’s implementation warranted sanctions (issue overruled) |
| Whether bad faith (intentional misconduct) was shown | No mens rea: at most negligence or poor judgment; no rule violated; no specific intent to contact parties | Trial court found Brewer evasive, approved persuasive questions, and intentionally sought to influence jurors—bad faith established | Court: Evidence supported trial judge’s bad‑faith finding (issues two and three overruled) |
| Whether the conduct significantly interfered with a core judicial function | No venire was empaneled and voir dire could have cured any prejudice; no proof survey reached jurors | Empaneling an impartial jury and protecting witnesses are core functions; survey targeted court personnel, witnesses, and community attitudes—significant interference | Court: Implicit finding of significant interference was reasonable (issue four overruled) |
| Whether sanctions were excessive and whether procedural errors (continuance/affidavit) require reversal | Sanctions were excessive; voir dire was the proper remedy; trial court abused discretion in denying continuance and ignoring affidavit | Sanctions directly remedied harm; amounts supported by billing records; denial of continuance was harmless because Brewer had opportunity to present evidence | Court: Sanctions were within discretion and tied to harm; any procedural errors were harmless (issues five–seven overruled) |
Key Cases Cited
- Eichelberger v. Eichelberger, 582 S.W.2d 395 (Tex. 1979) (trial court’s inherent power to sanction for bad‑faith conduct in litigation)
- Public Util. Comm’n v. Cofer, 754 S.W.2d 121 (Tex. 1988) (court duty to preserve adversary nature of proceedings and protect judicial process)
- TransAmerican Nat’l Gas Corp. v. Powell, 811 S.W.2d 913 (Tex. 1991) (two‑part test: nexus between conduct and sanction; sanction reasonable and not excessive)
- Cire v. Cummings, 134 S.W.3d 835 (Tex. 2004) (abuse‑of‑discretion standard in sanctions review and consideration of lesser sanctions)
- Low v. Henry, 221 S.W.3d 609 (Tex. 2007) (sanctions must be directly related to misconduct and not excessive)
- Onwuteaka v. Gill, 908 S.W.2d 276 (Tex. App.—Houston [1st Dist.] 1995) (inherent sanction power limited to bad‑faith abuse affecting core functions)
- In re Bennett, 960 S.W.2d 35 (Tex. 1997) (recognizing inherent sanctioning authority to deter bad‑faith abuse)