*3 WHITHAM, Before ROWE THOMAS, JJ.
OPINION THOMAS, Justice. Hanley, Hanley Ann
Deidre Tara judg- Hanley1 appeal from the trial court’s assessing striking pleadings ment their monetary against them for al- sanctions points leged In six discovery abuse. (1) appellants error contend that: the trial by striking their abused its discretion (2) its pleadings; the trial court abused $89,000 monetary assessing by discretion them; (3) sanctions against sanctions imposed the Texas and United violated constitutions; (4) trial court States refusing hear motion erred their sanctions; by rul- (5) the court erred trial Deidre, identify individually. to col- them Tara be referred necessary lectively appellants it is unless ing they standing had no and thus ed require appellants to pay the sanc- not participate could in the at the case final post supersedeas tions and to bond to hearing; (6) court erred cover the full amount the trial court’s refusing to them to make allow bills of judgment, including being the $1.6 million exceptions. hold that the held in registry Again, court. by striking its appellants’ abused discretion required this Court was to intervene and pleadings, dismissing their causes of ac- grant emergency approved relief. We tion, assessing $89,000 in monetary supersedeas previously posted, bond there- Accordingly, sanctions. we reverse the tri- proceed while the judgment, al court’s appellants’ reinstate district clerk reg- retained the funds in the action, causes of and remand the cause for istry of the court. proceedings further consistent with this
opinion. COMPLAINED-OF CONDUCT During the litigation, ap- course of this *4 BACKGROUND pellee changed attorneys. discovery The Hanley Pierce died in 1987 as a re disputes appeal involved in this arose after injuries sult he sustained when his ve appellee’s counsel, new Fried- Lawrence hicle was struck an automobile driven man, deposition sent Shirley notices to Kemp. Appellee, Idona Hanley, Maura Sutherland, appellants' counsel. The no- widow, Kemp Pierce’s and Kemp’s sued depositions tices appel- scheduled oral for employer, Marketing, Telecommunications April lants Apparently agree- on an Appellee’s brought Inc. action was as ex ment attorneys was reached the between ecutrix of Pierce’s estate under the Surviv appellants appear depo- would for the Statute, al see Tex.Civ.Prac. & Rem.Code specific sitions if Friedman would make 71.021, rightful as a beneficiary and § Ann. witnesses available on the same date. This the Wrongful under Death Statute. See agreement was confirmed letters be- 71.- § Tex.Civ.Prac. & Rem.Code Ann. tween attorneys. At the time same Tara, 001-.011. and Deidre Pierce’s adult attempted, success, Sutherland without to Ann, daughters, mother, and Pierce’s inter agreement deposi- obtain an to have Ann’s plaintiffs in appellee’s vened lawsuit. Scottsdale, Arizona, tion taken where wrongful The death action was settled for Ann was at the time. Sutherland then million, sum Kemp $1.6 which and Telecom informed Friedman she had decided paid munications into registry of the produce appellants not to April dep- appellants appellee court. When and were pro- ositions and instead filed motion agree unable on division of the settle April on tective order 12. Sutherland’s mo- funds, began they preparations ment for a requested tion that Deidre’s and Tara’s jury portion trial to determine what of the depositions quashed they because had settlement each would receive. Prior to already deposed length been at and new trial, the court found that therefore, it developed; evidence had was discovery process. Thereafter, abused alleged depositions were second striking plead an order was issued their burdensome, harassing, unnecessary. ings, dismissing prejudice, their claims with The depo- motion further asked that Ann’s imposing monetary day sanctions. The postponed sition be moved Falls entered, judgment the settlement Church, Virginia, place of her resi- appellee. were funds released a man dence, elderly on the basis that she action, damus Court ordered easily unable travel. vacate its disbursement order and registry hearing to return the A on funds Sutherland’s motion and Thereafter, the attempt- April court.2 trial court other held on 19 related matters was n.r.e.) judicial reh’g), (op. ap Court This will take notice its own writ refd on motion for cert, 806, parties involving denied, 979, records between the same peal w.o.j., 352 dism’d U.S. Wasson, subject Garlington 38, 38, same matter. 279 (1957). 1 L.Ed.2d 364 S.Ct. (Tex.Civ.App. S.W.2d — Eastland Since she appropriate. arising deems visiting judge.3 One before [c]ourt deposition her and did parties appear provided that all failed out of this rules it outstanding protection, seek respond written not were to [c]ourt cause of—her discovery by April 21 and further to strike the requests appropriate action, un- her cause of pleadings cutoff deadline and strike extended signed A second order Hanley. til the time of trial. as to April provided part: in relevant their Tara did Deidre and [appel- IT FURTHER ORDERED IS During depositions designated time. at the May produced] lants be approxi- lasted deposition, which Deidre's in the offices of at 10:00 a.m. hours, Sutherland mately nine-and-one-half [Appellants' counsel]. ques- repeatedly objected to Friedman’s IS ORDERED that all IT FURTHER dispute primary The between tions. depo- previous attended the counsel who meaning attorneys concerned Han- Hanley of Deidre and Tara sitions April it cor- 26 written order and whether questions asked ley repeat previously ruling. trial court’s rectly reflected the answered, shall be entitled following notation was docket sheet matters to examine the witnesses as to visiting judge: by the made previously covered. for Protective Order— Motion 4/19/89 ORDERED that all IT IS FURTHER [appellee’s] attorney did not if Granted previous did not counsel who attend If he to time of trial. questions reserve Hanley depositions of Deidre and Tara attorney has did, [appellee’s] then new Hanley, right their or who reserved right depose. Otherwise limited open *5 question the witnesses at a future date by prior deposi- not covered to areas scope limited in the of their in- not be attorney limited to tion], parties’ Other quiry. prior deposition]. areas not covered Ann, Dealing undisputed is first with original.) undisputed It is (Emphasis in appear not for the court-or- that she did deposed had been Deidre and Tara that May dered scheduled litigation and this once in connection with court’s order cites a number While trial attorney appellee’s prior attended that abuses, apparent it is that the discovery further re- depositions. The record those pleadings Ann’s solely court struck trial right to that he did not reserve flects appear deposi- because she failed to is also undis- question or Tara. It Deidre exchange open- following The tion. representing puted that Friedman was not hearing dem- ing minutes of the sanctions thus, and, not appellee time was at that point: onstrates this depositions. Friedman the first involved point FRIEDMAN: The 26 interpreted April written order as required these ... order Tara question Deidre and him deposi- up [appellants] to show for three matters, including covered at those all filing protec- a motion for tion without Sutherland, on depositions. previous or a motion for reconsidera- tive signed hand, the other maintained up did Hanley Ann not show tion. the visit- conformity order was not May. by the on the 1st of ordered [c]ourt ruling Friedman was ing and that judge’s by— Also it ordered that by the not covered to the areas limited strike her THE COURT: The [c]ourt During one of several prior deposition. cause action.... the at- argumentative exchanges between [******] torneys, following statements were made: No, talking I’m THE COURT: sir. you going to allow failing Are By FRIEDMAN: Hanley.
about questions[?] ..., your to answer these client deposition as ordered her at complained of All actions appeal order. only involv- of the written to this 3. The actions relevant judge presiding hearing, appeal April are those ing visiting judge his in this were this notation, subsequent entry court. this and the docket sheet 516 Having
SUTHERLAND: will allow her to an- found that had abused anything swer that’s been previously process, not the discovery the trial court en- depositions. other asked in tered the sanctions order which forms the appeal. words, basis of this you’re go- FRIEDMAN: In other ing ignore order. court’s going ignore I’m SUTHERLAND: STANDARD OF REVIEW sir, you drafted, order that that no other may impose A trial court sanc attorney the. hearing agreed with. Ev- party tions on any that abuses the dis ery attorney agreed you other were covery process. Tex.R.Civ.P. In re only go into except you. new matters viewing a trial court’s decision the area incorrectly. You drafted the order discovery, we are an to use “abuse of Sutherland, you FRIEDMAN: Ms. are standard, discretion” sanc going by to abide order or [c]ourt’s tions will aside upon showing be set adjourn shall deposition? “clearly” that the court abused its discre going go SUTHERLAND: I’m v, Mackie, tion. 796 S.W.2d Koslow’s you order that drafted. (Tex.1990); Corp. 704 City Bodnow v. you going FRIEDMAN: Are abide Hondo, (Tex.1986) 721 (per S.W.2d visiting judge]
the order
[the
curiam).
test
appel
is not
an
whether
signed?
presented
late court thinks that the facts
SUTHERLAND: Not
the order you
appropriate
an
case for the trial court’s
drafted,
sir,
no
my
and neither are
Rather,
question
action.
on appeal is
clients.
whether the
acted without refer
guiding
ence
principles.
Apparently this same conflict occurred
rules and
dur-
ing
Koslow’s,
deposition.
704;
S.W.2d at
City
Tara’s
Because of
Suther-
Dal
Cox,
land’s
las
(Tex.App.—
insistence that her clients would
v.
793 S.W.2d
questions,
writ).
answer certain
Friedman
Dallas
way
decid-
Another
ed to
stop
depositions and to
state
file a
the test whether the act was arbi
ruling
motion in
trary
order to obtain a
on what
or unreasonable.
Tate
Commo
questions
Co.,
could
asked.
dore
Mut.
County
Ins.
S.W.2d
*6
219,
1989,
(Tex.App.
222
writ de
pleading
Friedman filed a
entitled motion
— Dallas
nied). The fact that a trial court decided a
strike,
sanctions,
compel,
to
for
and for
matter
its discretionary authority
within
in
contempt.
citation for
He contended that
way
a
different from
the manner which
been guilty
dilatory
tac-
appellate
might
an
court
rule under the
discovery process
tics and
abuse
same or similar
does not
circumstances
es
(a)
deposi-
that:
Ann did not
tablish that an abuse of discretion has oc
tion; (b)
cooper-
Deidre
Tara refused to
Aquamarine Opera
curred.
v.
Downer
questions during
dep-
ate and answer
their
tors, Inc.,
238,
(Tex.1985),
S.W.2d
242
701
ositions; (c)
interrogatories
were not
cert, denied,
1159,
2279,
476 U.S.
106 S.Ct.
answered;
(d)
properly
requested
doc-
(1986); Tate,
517 In Marable, Review Standard Although an Soules & Downer, 701 S.W.2d at of Cases 6, Ap- Penalty’’ Discovery “Death judg cannot substitute its appellate Session, Texas Judicial Sec- Judges pellate on matter with trial court’s ment for the 26, (September discretionary authority, tion Annual Conference in its Texas Center 1990) is not on file with the impose (copy sanctions power court’s Inc.). Beene, 876, Judiciary, 721 S.W.2d Ray unlimited. 1986, (Tex.App. 879 [1st Dist.] an — Houston concerned that must be Because we n.r.e.). A trial court’s broad writ ref’d of Civil of the Texas Rules interpretation requirement by discretion is limited parties process as due Procedure affords “just” and the sanc its order be by the Constitution guaranteed “specifically to the imposed related tion also the Constitu- of Texas but the State conduct.” done the condemned harm States, look United we also tion of the at 879. Ray, 721 S.W.2d reviewing guidance in courts for federal from National actions. We know these THE PLEADINGS STRIKING Hockey Metropolitan Hockey League v. that the point, In first asserted 2778, 639, Club, Inc., 427 96 S.Ct. U.S. striking its court abused discretion (1976), court has that a trial L.Ed.2d 747 dismissing pleadings subsequently impose sanc- authority to the ultimate prejudice appellants’ causes of action. with non- default where the tion of dismissal or authorizes the trial court to strike Rule 215 faith, willfulness, bad compliance is due party’s pleadings for abuse of the dis discovery evaluating or fault. 215(2)(b)(5).5 covery process. Tex.R.Civ.P. Hockey, the U.S. Su- breaches in National 215(2)(b)(5) options The authorized rule as preme characterized the actions Court “extreme” are termed the “ultimate” or disregard “flagrant faith” and “callous bad un imposing sanctions. Orders sanctions responsibilities counsel owes 215(2)(b)(5)have been measured der rule opponents.” Court and their National against standard in the abuse discretion 96 S.Ct. at Hockey, 427 U.S. myriad many in a of cases in fact Texas Mo- Honda Fjelstad also v. American See Jackson, Kilgarlin & situations. See Sanc Cir.1985) Co., (9th tor 762 F.2d Discovery tions Abuse Under New (where or sanctions of dismissal the drastic MARy’s 800-04 Rule St. L.J. imposed, range of the trial are default (1984). However, dealing when “ex narrowed, los- and the court’s discretion sanctions, cursory under treme” review noncompliance be due ing party’s must not in the abuse of discretion standard has willfulness, fault, faith). Na- or bad many instances the ills of cured thoroughly Hockey tional standard may disputes, and have fact contributed analyzed in Poulis v. State discussed and problems. pointed As has been out: Co., F.2d 863 Casualty Fire & Farm long appellate As trial courts and Cir.1984). (3rd articu- The Poulis court *7 affirming penalty courts are death cases appel- the applied by to be lated six factors of discretion review” without on “abuse the trial reviewing whether late court requi- articulation of analysis careful imposing court abused its discretion applica- of erroneous site de novo review penalty “death sanctions.” standards, legal essential The tion of we too will background, With that Lawyers is Creed rendered hol-
Texas which guided by be manner imposed the lawyers’ low. With duties ... following factors the advocacy part of court balanced first to effective on the findings: supports its clients, great pressure record is in whether our re party’s personal (1) of the today use in dis- extent Rambo tactics Texas (2) the adver prejudice proceedings prevail sponsibility; in order to covery respond to by the failure to caused way. sary there is other when designated. All references to rules be 5. further Civil unless otherwise Texas Rules of Procedure (3) dilatoriness; discovery; history (4) [cjourt’s THE COURT: The is position whether the party conduct of the or the if things they that were not covered and attorney faith; (5) was willful or in bad answered, were not then was not that effectiveness of sanctions other than dis proper. [cjourt expects But all coun- missal, analysis which an entails of alterna obey [cjourt sel to order. And the sanctions; (6) tive the meritoriousness [cjourt gets if angry counsel states Poulis, of the claim. See F.2d they're going not to. weigh We must factors in above order right. All up Let’s take next —the to assure that the “extreme” sanction of problem interrogatories? is the is dismissal reserved for the instances in Finally, prior to on ruling the motion for justly Poulis, which it is merited. 747 F.2d sanctions, again inquired the trial court at 870. Doubts should be resolved in favor reaching about Sutherland’s statement that she was decision the merits. Scar v, Eubanks, going borough not to abide 747 F.2d court’s order: (3rd Cir.1984). THE COURT: Would [To Sutherland] you you address the fact that commented parties’ personal Extent re- you on the record that did intend not sponsibility [cjourt’s obey order? allegation While there has been no that Yes, SUTHERLAND: No. ma'am. And respon- someone other than are my statement was I would not follow the complained-of conduct, sible for the it is order that Mr. Friedman had drafted be- apparent many com- actions I he misinterpreted, cause felt had he plained they about are actions that took order, accurately had not drafted the upon Sutherland’s instructions. is fur- It I attorney filed an affidavit an from from apparent ther trial court became that, my firm who attended who attended angry interpretation with Sutherland’s sorry, —I’m the court order and certain of her trial stating thing, the same that Mr. Fried- tactics. The trial court’s reaction to Suth- accurately man’s order was not drafted. position erland’s about the court order is say I say did not or intend to I throughout demonstrated the record. The [cjourt’s would not follow the order. I trial court decided that sanctions would say did that I would not what Mr. follow assessed soon as Friedman demonstrat- Friedman had drafted because felt it ed that had Sutherland stated that “she representation going not an inaccurate what to abide the order” be- place. accurately cause did reflect the rul- taken ing. following excerpts demonstrate you agree THE COURT: Do that an court’s irritation with Sutherland’s [cjourt order of the an order explanation position: [cjourt changed? until it is THE COURT: That’s fine. But agree. I absolutely SUTHERLAND: [cjourt will enforce why THE COURT: Then you did make [cjourt even if isit rendered a master such a statement? visiting or judge until such order is re-
THE COURT: and therefore reconsider— SUTHERLAND: will file a motion to [cjourt fore should be sanctioned. might disobey a court order and there- considered Please continue. highly on a No, I rehearing. offended that some [cjourt ma’am. It’s And the sanction too late follow the you THE COURT: Excuse then I assume the land, der. stated language [*] but My major if you [cjourt’s [*] again would not—I’d like to see Judge concern is the fact that [*] *8 Judge signed order. signed me, [*] you Ms. Suther- # wouldn’t the or- order, [*] you. Please continue. displeasure As to the trial court’s about
[*] [*] [*] [*] [*] [*] Sutherland’s trial tactics, the trial court subpoenaed connection been stopped the sanctions sponte6 sua hearings following exchange: when there litigation engaged in the contempt, was not motion me. Before we Excuse THE COURT: the matter would be indicated that this, we have sub- proceed to do because they Suther- up reached parties like taken whenever poenaed these ... I’d Finally, the subpoenaed motion for sanctions. why we have them ... land’s know you subpoenaed provided a further indication why I don’t know trial court but anger [appellee]. toward Sutherland frustration and following statements. by the her subpoenaed I be- SUTHERLAND: sign her to we have asked for cause offend- Also this THE COURT: [c]ourt's and medical records employment records motions filed ed if there are frivolous get copies us to authorization I like to inconvenience the because don’t case present in order to our her records me a And it seems to parties ever. sign I those. at trial. She’s refused good there’s a rea- waste of time unless that, subpoenaed here so should her good reason And should be son. it, could [cjourt maybe that she parties. subpoena sign get so we can those because those may not able to Although a client setting. trial Monday our the acts or omis- consequences avoid the I think I But THE COURT: know. counsel,7 in this case sions of its it is clear purposes. that’s for harassment anger primarily was that the court’s No. SUTHERLAND: statements and the result Sutherland’s do, Honor. FRIEDMAN: We Your subpoena appellee to the her decision SUTHERLAND: Look at the—check hearing. the— me, But I THE Excuse ma’am. COURT: Prejudice adversary you subpoenaed just why curious normally something
her prejudice because to a If there has been true care of. But that her counsel would take cooper adversary’s failure to party by its just why you subpoenaed I curious discovery, during that factor would ate her to be here? weight support of a bear substantial subpoenaed her to be SUTHERLAND: judgment. or Scarbor dismissal default get here could documents that so of such Examples at 876. ough, 747 F.2d from her we needed because we’ve loss of evi prejudice are the irretrievable year-and-a-half been able over the last to dence, dimming of witnesses’ the inevitable get documents. memories, possibly or the excessive [******] irremediable burdens or costs imposed on Scarborough, party. opposing me THE COURT: To that would be appellee contended F.2d at 876. While purposes. for harassment appellants’ motion that the third amended trying to SUTHERLAND: We were not alleged discovery her access abuse denied her. harass necessary prop that was to information But THE I understand. COURT: prejudice is not estab preparation, er trial [cjourt as the will consider that far record, and the trial did lished in you. Thank Is there oth- sanctions. finding prejudice. not make a her, why you subpoenaed er reason ma’am? the time Discovery extended to had been thus, trial; obtained appellee could have exchange fi- The trial court continued this and documents that she the answers nally concluding that she had never seen her necessary preparation point- claimed were When Sutherland this done before. objections over- once had been her clients had for trial ed to the court that out Poulis, attorney F.2d at 868. appellee’s ob- 7. See 6. We note that neither jected complained procedure nor about this sponte. prior to the trial court’s intervention sua *9 520 Nothing suggests
ruled.
in the
essarily
record
delay
indicate an intent
to
dis-
lost,
had
irretrievably
covery
evidence
been
history
or a
of dilatoriness.
dimmed,
appel-
memories had
or that
n .
attorney’s
lee had suffered
or
Whether the
excessive
irremediable
conduct was
alleged
or
burdens
costs as a result of the
or in bad
willful
faith
Also, nothing
misconduct.
in
record
Here,
Poulis,
unlike
court made
many
refutes Sutherland’s contentions that
finding
no
that Sutherland’s conduct was
questions
of
deposition
al-
Friedman’s
had
willful or in bad
do
faith. While we
not
ready
pre-
been asked and answered in the
necessarily
discovery
condone the
tactics
depositions.
vious
To the
extent that
employed
matter,
in this
the record does
objected-to questions had been
and
asked
not indicate that Sutherland’s
went
conduct
answered, appellee already infor-
beyond good
representation
faith
and ef-
being sought
mation
and thus suffered no
protect
to
rights
forts
her
client’s
this
prejudice. We note further that Friedman
litigation.
during
hearing
indicated
the sanctions
appellee
ready
go
trial,
even 5. Alternative sanctions
disputed discovery
without the
materials.
The trial
apparently
deter
striking appellants’ pleadings
mined that
History
S.
dilatoriness
of
imposing monetary
sanctions were the
As
previously,
indicated
there was
only appropriate
sanctions. Dismissal
one sanctions
in this case. In com-
last,
first,
must be a sanction of
not
resort.
plaining
appellants’
failure to attend the Poulis,
Further, appellants delivered their re-
fense
interrogatories
sponses
requests
documents,
production
as
A claim or defense will
deemed
well
objections,
allegations of
their
on the date
meritorious
ordered.
when
Thus,
trial,
sup
appellee’s pleadings,
this is not
case
if
where
established at
would
discovery requests
port
plaintiff
were never
recovery
answered.
or would
Poulis,
(the
Poulis,
plaintiffs
complete
F.2d
at 868
constitute a
defense.
Cf.
870;
interrogatories
neither answered
nor filed
at 875.
Scarborough,
F.2d
F.2d
objections
objections). The assertion
to The meritoriousness of the claim for
deposi-
on
appellee’s
requests
purpose
must be
the basis of
evaluated
questions, although
validity
pleadings
tion
later overruled
the facial
court,
large part by
judgment
nec-
summary
does not
standards. Scar-
*10
fact,
In
the rule was
sanctions.
and
authorized
provides 215(2)(b)(2) follows: inor torney or require (8) court costs or both ent (2) the expenses An order party lieu of addition for recovery of both] or the [disobedient charging any (2)(b)(8), thereto, attorney advising him; of the pay discovery against all which at such time as party expenses forgoing or the disobedi- any court shall provide or taxable or portion orders under at- as believe we had THE ries and also had a statement on the record that— motion for sanctions. THE COURT: Yes. would be a FRIEDMAN: ration, presentation, [*] COURT: requests [*] reasonable Your gone through interrogato- Okay # Honor, ... fee production. [*] I Yesterday think [*] of this prepa- $3,500 [*] I Friedman, court, you spent approxi- —Mr.
ordered the reasonable ex- including fees, $3,500.00 penses, attorney mately interrogatories caused failure, by the requests unless the court finds production filing mo- substantially justified the failure was or I you’re tions. And believe almost fin- other circumstances make an award quite ished but not concluded. expenses unjust. Yes, FRIEDMAN: Your Honor. lay reasonable or Rule ing expansive because it allows for the recov- ery from the sanction order. It caused of more than 215(2)(b)(8)appears expense resulting fact the other merely party’s the cost of obtain- discovering appears to be the most from the de- obstinance party THE lasted SUTHERLAND: deposition? osition]: [*] COURT: two How [*] days. much [referring [*] It went nine [*] the cost of this Deidre’s [*] hours, dep- [*] Honor, deprived Your I FRIEDMAN: would ask needed information would be recoverable under this section. that a reason- [c]ourt [c]ourt —tell discretion, $3,500.00. Even all of this there is able fee would an additional ordering its court abused discretion Okay, But how much was THE COURT: $13,000 pay to Friedman appellant much reporter’s fees and how each the court P.C., Associates, attorney’s fees. The attorney’s & fees? was the point is sustained. second find out the FRIEDMAN: can reporter’s deposition, were time. The hours.
there for nine-and-a-half CONCLUSION * * * * * * Although sustained the first we have for. THE you time and and for motions answering interrogatories, motions the orders tions. deposition, lot of wasted and my questions $3,500.00 anything FRIEDMAN: stand. initial course consider expense said [******] [******] I COURT: on But, therefore, me would pertaining money in it was [appellants’] inquiry to the attorneys’ that in was involved [appellee], produce she their time, ask It requests for motions Excuse $3,500.00. has cost pertaining as to could be the considering deposition. to which aggravation beyond documents refusal fees each for the [c]ourt answering these how much time me. in gets pertaining to [appellee] compensated at The production, to taking to to that I under- the back getting answer [c]ourt during award was a sanc- time the in issues sua nection, we hearing previously least two subpoenaed lants that failed to important to imposing of facts reveals numerous instances where second not be tactics made duct do not case neutral rather we hold covery abuse. abuse mitigate first the trial is by by determine whether the points of trier employed read as sanctionable inquire the appellants or appellee was the court, occasions, the appellee had also committed dis- to sponte that note to complained-of appellants’ of point that under the facts of this fact, rather than that the trial court never into error, condoning This may by or the statements issue discussed. out that the statement abused its discretion under rule favored allegations by appel- their have been relevant alleged discovery for the sanctions of favored trial court raised conduct. On sanctions. It is appellee being opinion should *12 attorney. appellee acting alleged In this 215; appellee. as con- con- but in Therefore, allegations inquired appellee we ask the into the would [c]ourt $13,- engaged Fur- [appellee] order—the same conduct. award [c]ourt ther, during course the attorneys’ pertaining 500.00 in fees sanctions motions; against $13,500 hearing, sponte [Deidre], these the trial court decided sua motions; pertaining against psychological examinations should be these prior to [Tara], on Deidre and Tara trial. and sanctions—as well as sanc- conducted pointed appellee When Sutherland out tions. such relief and that requested had not Appellee argues is trial court psycholog- pending there was motion attorney’s required to hear evidence examinations, responded the trial court ical authority pursu- its fees sanctions under instructing appro- Friedman to file the by ant to 215 to “make such orders as are rule an and stated that priate motion just.” The trial court had before it the signed motion as soon as the would be concerning attorney’s statements above occasions, the filed. On numerous other certainly do not fees. These references trial court would allow Sutherland $39,000 support trial award of court’s ruling appel- argue objections her before attorney’s attorney’s fees. An award favor. lee’s fees in is to be excess what shown disposition points one unjust Because of our reasonable is and does not relate two, alleged unnecessary to address the the harm suffered as a result Thus, remaining appeal. We re- abuse. such an award not autho- contentions judgment, court’s reinstate by rized rule We conclude that verse appellants’ action, causes of and remand that the trial court abused its discretion in cause the trial court present for further case. Because the trial court proceedings opinion. consistent with this abused its given discretion under test Court, Supreme us I conclude that
WHITHAM, Justice, concurring. must judgment, reverse the trial court’s I majority’s opinion appellant’s action, concur reinstate cause of extent that we reverse trial court’s remand the cause the trial court. judgment, appellant’s reinstate causes of
action, and remand the cause to the trial express my disagreement
court. write to majority’s articulation of six applied appellate
factors reviewing whether the trial court abused
its discretion in imposing penalty “death Indeed, I
sanctions.”
see no reason to
reach
appellate
out
a federal
court for
HIBLER, Appellant,
P. Otis
majority
direction as
does the
its re
liance on Poulis v.
Fire
State Farm
&
HIBLER, Appellee.
Jane
Co.,
Casualty
(3rd Cir.1984).
rate test abuse of discretion in these pronounce
cases. are bound Supreme
ments of the Texas Court
law until the contrary. Court states to the
Jones County, v. Hutchinson 615 S.W.2d (Tex.Civ.App. — Amarillo
writ).
I turn then to address the trial court’s
abuse of discretion as I understand the test
given Supreme my us Court.
view, imposed originate the sanctions in a dispute attorneys
bitter between over
drafting and contents order.
Furthermore, mind, my the trial court’s attorney’s ap-
sanction one distainful
proach went beyond official
judicial disapproval personal and became a Once
matter. the trial court’s reaction be- personal,
came the trial court acted without any guiding princi-
reference to rules and
ples. The test for abuse discretion is
whether the trial acted refer- without any guiding principals.
ence rules Koslow’s, 704; Downer,
See S.W.2d Therefore, at 238. S.W.2d conclude