*1 802 in- reasoning
definition of the word
adopt
“obstruction”
We
“something
hin-
impedes
Appeals
cludes
that
or
Dallas
Houston Courts
ders;
obstacle;
...
act of
...
an
join
holding
penal
these courts
code
impeding
hindering;
offense,
or
...
only
interference.”
one
section 38.03 describes
(8th ed.2004);
BlacK’s Law DictionaRY 1107
by
but
identifies three different means
Hartis,
see
Hartis,
force.” Tex. Penal Code Ann. Sartain,
see 228 424. In other S.W.3d at
words, proscribed the conduct the act of is
intentionally preventing obstructing or person effectuating authorized from his Amy BADER, INC., Wright, C. SCOTT Hartis, using duties force. S.W.3d 183 Wooley, L.L.P., & and National Kern Finster, 799; at at 219. The S.W.3d Chemicals, Inc., Pigments Appel &
particular impedes duty that the defendant lants simply per “is another means v. interfering police son could with a offi be PRODUCTS, SANDSTONE Finster, effecting cer his duties.” INC., Appellee. 219; see at Ngo, S.W.3d at also 745-46 means” (stating “manner and Bader, National Inc. and describes how defendant committed Pigments Chemicals, & specific statutory criminal act and that Inc., Appellants jurors required agree should not be commission). upon a means of single Products, Inc., Appellee. Moreover, section 38.03 addresses con proscribed (preventing duct or obstruct 01-05-00940-CV, Nos. 01-06-00593-CV. section, ing) multiple not in sections one Texas, Appeals Court of Finster, separated by term “or.” Dist.). (1st Houston Thus, S.W.3d at 219. the actions resist Feb. arrest, resisting search, resisting ing into mul transportation separated are not
tiple sections. Id. *4 Products, (“Sandstone”), Inc.
against appellants, Bader, Inc. (“Scott Bader”) Pigments and National & Chemicals, Inc.1 In appellate cause number 01-05-00940-CV, Scott Bader and its trial counsel, Amy Wright, Wright’s C. law firm, L.L.P., Wooley, Kern & appeal sanc- against tions assessed them. The trial court awarded against abusing Bader for the discovery process and against Wright and her firm for violat- ing an in during limine order trial. Scott Bader contends that it did not abuse the discovery process and that the sanctions “just.” were not otherwise Wright and her firm challenge the sanctions award *5 against them asserting that the sanc- tions were excessive.2 appellate In cause number 01-06-00593- CV, Scott Bader and Pigments National challenge the trial judgment court’s ren- against dered them in favor of Sandstone. Presenting four issues and numerous sub- Swaim, G. Don Kern & Wooley, Irving, issues, (1) Scott Bader contends that the Dubose, Kevin H. Alexander Dubose Jones testimony of Sandstone’s expert causation LLP, Houston, TX, & Townsend for Ap- was unreliable and constituted no evidence pellants. (2) causation, the legally evidence was Waters, Brewer, support damages insufficient to the
Allison Baker Mark award- J. (3) jury, ed Clay, Pritchard, John the trial court erred Withers Brewer & P.C., Houston, TX, when it included a “binding for instruction” in Appellee. jury charge that Scott Bader had NUCHIA, Panel consists of Justices breached its contract and breached its KEYES, and HIGLEY. (4) warranty Sandstone, with alterna- tively, court’s should be OPINION modified because it prejudgment awarded HIGLEY, LAURA CARTER Justice. damages. interest on future appeals These two arise from a In appellate cause number 01-05-00940- product liability CV, affirm, suit brought by appellee, part, we in reverse appeals 1. Because these arise from the parties involving same between the same the same matter.”). subject underlying litigation parties between the same interrelated, and because the issues are we signed 2. The severing trial court an order judicial take appeal notice in each sanctions orders from the remainder appeal. Douglas record in the other v. Ameri- signed judg- case. The trial court then a final (Tex. Title can Co. 196 S.W.3d 1n. incorporating ment -in the severed cause (“We App.-Houston pet.) [1st Dist.] no orders, thereby making sanction the sanction may judicial take notice of our own records purposes appeal. orders final for of this remand, modify cause the formula used part. appellate num- Sandstone 01-06-00593-CV, coating. make roof The modi- judg- ber we reverse the Sandstone’s varying include fied continued to formulas ment and remand. Texigel. Despite modifica- amounts Background Factual and Procedural tions, Coating roof continued Sandstone’s its to fail. worked with custom- Sandstone is a company United States coating materi- ers roof supplying new a a wholly-owned subsidiary of British instances, and, in labor. Howev- als some resin, company. Scott Bader sells er, to fail. coatings the roof continued Texigel, as which is used as com- known ponent coatings. frame, roof Al- ingredient same time Sandstone During the though parent company its British manu- industry standard for sought to meet sells, factures resins it Scott Bader coatings. roof of Florida re- State rather, not Texigel, coatings does manufacture it quired to meet this standard. roof result, contracts “toll” or with sub-manufacturers As a Sandstone could sell its product. to make the Corpora- product coating passed Goodrich until its Florida (“Goodrich”) (referred tion was Bader’s toll industry-standard test Test”). until At that point, County manufacturer Sandstone sub- “Dade (“Para-Chem”) Southern, testing Para-Chem Inc. three coating mitted roof its occasions, began Texigel manufacturer separate product never but occasion, Bader. On passed the test. each Sand- County Dade failed the stone’s and sells roof manufactures requirements. Test’s swell” “water coatings. sealant From until fail- *6 ultimately attributed the purchased Texigel Sandstone from Sandstone Scott Texigel. coating in ure of roof to Scott manufacturing Bader to use its roof its claim, contending Bader that that coating.3 Texigel component was in- denied im- mixing coating the roof gredient coating in roof that Sandstone was Sandstone’s as- coating properly. caused Sandstone sued Scott Bader the roof to “bind” or adhere contract, claims for breach serting to roofs. Bader a formula provided Scott warranty, of the Texas to it how to mix breach of violations instructing Sandstone (“DTPA”), Deceptive Trade Act Texigel ingredients nine Practices with other fraud, misrepresentation. negligent make roof coating. Sandstone’s NPCI, Para-Chem, Sandstone also sued In cus- began receiving Sandstone and Goodrich. that complaints coating tomer its roof was litigation, During course failing. Specifically, Sandstone’s roof coat- had alleged Scott Bader Sandstone that with ing swelling was water and adher- misrepresentations: made number of a ing to it had the roofs been (cid:127) applied. misrepresented contacted Scott Bader that Texi- Bader Scott gel be problems. Initially, about the Scott Bader was water resistant could coatings. an in roof problems improper appli- attributed the used as adhesive Texigel styr- coating. undisputed cation of the roof As more com- It is is arose, acrylic pure acrylic resin not a plaints Scott Bader worked with ene Chemicals, Appellant, Pigment that NPCI acted as National & instructed ("NPCI”), agent that Scott Bader Inc. is the for Scott for Scott Bader and distributor responsible pur- legally was for NPCI's conduct. Bader’s from whom Sandstone Thus, Bader and NPCI col- chased NPCI and Scott Bader are we refer the resin. closely lectively aligned in this The trial as "Scott Bader.” case. court resin. .Styrene acrylic spite contains the Scott Bader’s awareness of these compound acrylamide, a water problems absor- and its awareness of Sandstone’s material, bent not a water resistant complaints, customer Scott Bader never such, material. As Sandstone con- disclosed this information to Sandstone. tended that Texigel was unsuitable for During litigation, the course of the use in commercial roof sealant coat- discovery dispute par- arose between the ings, such as by those manufactured ties. separate Sandstone filed two motions Sandstone. production to compel of information and (cid:127) Scott misrepresented Bader it regarding product documentation specifi- manufactured in Texigel, when fact it testing, cation and other customer com- was by manufactured toll manufac- Bader, plaints received and the tures Goodrich and Para-Chem. identity of the current or former Scott (cid:127) Scott Bader misrepresented that Texi- employee knowledgeable most re- gel pass could be used to the Dade garding product development and formula- County Test. Sandstone contended tion issues. acrylamide that an resin could never response to Sandstone’s second test; rather, pass the only pure acryl- motion to compel, represented Scott Bader ic resins can meet the standard. produced that it had testing all documents (cid:127) misrepresented Scott Bader that Texi- and that it complaints, had no customer gel contained the same ingredients as other than those Sandstone. Scott Bad- the resin manufactured Scott Bad- represented er also that it had never been when, er’s parent company, British mixing involved or formulation of fact, the resin manufactured Texigel, supplier rather it was a and seller parent company contained product. Scott Bader’s counsel also pure acrylic, Texigel while was made person informed Sandstone that the with acrylamide. from the most knowledge regarding product for- (cid:127) misrepresented Scott Bader mulation was not a employee Scott Bader only Sandstone was the customer to person but was a who resided Unit- the. complain roofing problems about asso- *7 Kingdom. ed Scott Bader did not reveal ciated with products. Scott Bader’s the identity person. of the Sandstone contended that Scott Bader 2005, From May 2004 until March Scott
had received other customer com- Bader produced approximately 200 pages plaints. of documents to in response Sandstone to Sandstone alleged also that Scott Bader discovery requests. Sandstone’s On Texigel was aware that deviated from its 1, 2005, 8,000 March produced Scott Bader is, specifications; that it was pages of to Sandstone. Before documents Goodrich, manufacturer, aware that its toll documents, production of these Scott had at point some deviated from the resin Bader had filed two no-evidence motions parent formula of Scott Bader’s company summary judgment against Sandstone. styrene and using acrylic had started in- Also at point, already this Sandstone had pure acrylic stead of to make Texigel. taken depositions. numerous alleged Sandstone that Scott Bader was also aware that quality 15, 2005, control issues per- August On shortly was Texigel, trial, sisted with even after Scott Bader before Sandstone filed its “Trial Brief manufacturer, contracted with a Sanction, new toll in Support Spoliation of Instruc- that, tion, Para-Chem. Sandstone asserted de- principal Continuance.” The and/or viscosity and also extra pro- drifts the motion was a document due basis for (as custom- reported time on from our by for the first Bader tackiness duced Scott ers). 8,000-page part 2005 as March of was production. document The document the Boothe contended that Sandstone Bader memorandum authored “smoking gun” docu- was memorandum Boothe David Boothe. The employee, many previ- of the it refuted ment because a 17- page was first
memorandum made Scott Bader representations ous been page previously document had Specifically, process. during produced sans memorandum. that the Boothe memo- asserted Sandstone written Boothe memorandum was The following rep- earlier refuted randum con- on November and identifies during made Bader by resentations transi- with Scott Bader’s cerns associated discovery: tion from toll manufacturer Goodrich (cid:127) par- personnel No from Scott toll manufacturer Para-Chem. Kingdom in the company ent United Texigel Boothe memorandum stated of Scott involved in the control until Au-
was manufactured Goodrich Bader; gust of 1999 that Scott (cid:127) corporate repre- Bader had no to Para-Chem at that time “changed about knowledgeable sentatives relationship [Para- start a closer with the Texigel; testing formulation margins” folks and to our increase Chem] (cid:127) Texigel had made to changes been No on The Boothe memorandum re- Texigel. changing toll other than since transition, that, at the time vealed manufacturers; and president was without a Scott Bader (cid:127) no other customer Scott Bader had (an Terry employee Strickland Texigel, aside complaints regarding parent British was company) Scott Bader’s those of Sandstone. from from “main lead” the transition addition, produced docu- to Para-Chem. The Boothe Scott Bader Goodrich that, revealing point, at one Strick- singular memorandum stated that “our ments pursuit viscosity drift Bader’s director. should be handle land had been Scott this was rele- stability issue.” The memorandum contended that Sandstone the im- highlighted that the formulation” because it further acknowledges “USA vant produc- in the Texigel differs from the version” of Strickland’s role portance “UK alleged that acrylam- Texigel. version because the “US contains tion ide, Strick- should have identified where the UK version does not.” Scott Bader with corporate representative land as The memorandum notes that the “UK *8 and knowledge of formulation the most handled the transfer from Good- people” testing deposition purposes. continues, Para-Chem and rich to in- at Bader also customer produced no control material sent There was names customer and time. The lab material was made voices from which the had been redacted hand. approvals and addresses and reviewed UK Bader had we asserted that Scott from the Once were sent UK. Sandstone [Para-Chem], prevent Sand- never went the information changed we redacted customers identifying from other It Nov. 2000 stone back to is now [Goodrich]. prob- may experienced have similar reviewing up per- we are the scale in the Texigel, as referenced we be- lems with at because [Para-Chem] formed also memorandum. product Boothe slightly have different lieve we pointed out that it had discovered that rich[’s] services to those of Co- customer, Sealoflex, another Scott Bader Para-Chem, Defendant his direct complained had to Scott Bader about a supervision over specific issues roofing issue. Scott Bader pro- did not regarding the formulation and duce the documents related to the Sealo- testing of product, Defendant’s rather, flex complaint; Sandstone had ob- spe- and his direct involvement in tained the by subpoena directly documents cific issues related to customer from Sealoflex. granted The trial court reports problems. request Sandstone’s following (v) failing produce as a corporate hearing. its sanctions signed order representative a witness with 22, 2005, August the trial made the knowledge requested;
following findings of fact: (vi) filing two no-evidence motions for a.The Court finds that Defendant summary judgment motions on BADER knowingly SCOTT has and in February December 2004 and flagrant engaged bad faith in discov- 23, 2005, respectively, when De- abuse, ery including following: fendant SCOTT BADER and its (i) withholding responsive critical doc- production counsel knew that the production uments until of documents and witnesses was 8,000 pages more than of docu- deficient. 1, 2005, ments on March after the depositions in the lawsuit had al- In particular, b. Court finds that [the] ready place taken of witnesses set Defendant SCOTT BADER’s actions in this order [the court later were calculated to conceal evidence depositions identified the eight that would indicate witnesses]. (i) that SCOTT BADER’s did (ii) producing documents a manner specifications; not meet its stated calculated to conceal information (through removing key first (ii) specifications that the stated page of a marking document and modified. out information in other docu- c. The further Court finds that Defen-
ments), with conflicting and inade- dant SCOTT BADER’s actions and quate explanations for the same representations to the Court through- that lack credibility; pretrial out the discovery indicate a (iii) presenting deposition witnesses pattern history or of bad faith discov- with such critical documents and abuse, ery demonstrate callous disre- pro- information concealed or not gard responsibilities for the of discov- duced; rules, ery significantly under the (iv) failing Terry to name Strickland integrity interfere with the and core as a with knowledge witness judicial functions of this and its Court facts, produce relevant or to re- rulings; documents, sponsive related to *9 above, Strickland’s role as director of d. For all of the reasons of [sic] BADER, Defendant SCOTT his the Court finds that Defendant role in “main lead” Defen- BADER prejudiced SCOTT Plaintiff dant SCOTT BADER’s ability present transition SANDSTONE’S to its using from Co-Defendant Good- case. critical documents “production of trial further Bader’s
The court’s sanctions order 1, 2005.” on March provides, directly is The sanctions order below trial court further ordered The conduct, to and is related the offensive $68,000 in sanctions for pay Bader Scott a appropriate necessary and because incurred attorney’s expenses fees and promote compli- will not lesser sanction to Scott Sandstone attributable ance. The Court has considered trial also set discovery abuse. The court options. all lesser available possibility of summary judg- rulings earlier aside however, circumstances, Under these summary for and struck motions ments is to there no lesser sanctions available Last- filed after March judgment address and deter Defendant SCOTT granted and Para- ly, the court Goodrich’s preserving BADER’s conduct while claims request that Sandstone’s Chem’s rights. SANDSTONE’S separately. them be tried against following The trial court awarded the Shortly signed after court the sanc- sanctions Sandstone: order, proceeded to trial tions case and enti- requested Plaintiff has shall be August against Scott Bader. On instruction, following tled trial, day of Scott Bader’s lead the third shall treated as de- partial be a counsel, Wright, violated an Amy trial judgment limiting dispute fault issues “intentionally limine in- order when she Bader, as Defendant Scott Inc. and liability jected [Sandstone] insurance pleadings indemnified co-defendant’s the evidence front presented into struck to this extent: [are] conduct, granted For this the trial jury.” (1) “You presume prod- are to that the request for mistrial and sanc- Sandstone’s shipped uct mid- that was between firm, & Wright and her law Kern tioned speci- 1999 and 2001 did not meet the $79,012.40, representing Sand- Wooley, fications Bader provided necessary and fees stone’s “reasonable (2) Sandstone, specifica- through from the hear- expenses” voir dire Bader provided tions that Scott ing on the motion for sanctions. during Sandstone for severing an order signed The trial court mid-1999 and 2001 were modified.” earlier sanctions order this order par- Defendant BADER and the SCOTT from the remainder for abuse ty it be [NPCI] indemnifies shall not also signed The trial court the case. presump- the factual permitted to rebut incor- final in the severed cause any defenses tions above and affirmative orders, mak- thereby the sanction porating addressed to this issue shall be stricken. final appeal- the sanction orders ing also that Scott court ruled able. Terry as a could not use Strickland Bader at trial and ordered that Scott witness THE APPEAL SANCTIONS “may use the testi- deposition Bader issue, challenge appellants from In their third mony any deposition witness against them. BADER first the sanctions awarded unless SCOTT demonstrates challenges the sanctions deposition tak- to the Court that such was firm Wright and her law discovery abuse. after full of documents.” production en Wright’s viola- challenge wit- eight The trial court then identified in limine order. deposed tion of the nesses before *10 812 Discovery
A. Abuse discovery Sanctions abuse should be no more severe necessary satisfy legitimate than to its 1. Standard of Review and Govern- purposes, securing compli- which includes ing Principles rules, discovery ance with deterring other a trial ruling We review court’s litigants misconduct, from pun- similar on a motion for sanctions under an abuse Id.; ishing Spohn Hosp., violators. see of discretion standard. Cummings, Cire v. 882; 104 at Chrysler Corp. S.W.3d v. (Tex.2004). 835, 134 S.W.3d 838 A trial Blackmon, (Tex.1992). 844, 841 S.W.2d 849 court abuses its discretion when its ruling reason, For supreme this court re- arbitrary is and unreasonable without ref quires stringent courts to consider less any guiding erence to principles. rules and sanctions whether such lesser sanc- review, at conducting Id. 838-39. our fully promote would compliance. tions we are not limited to a review of the TransAmerican, 917; 811 at S.W.2d see “sufficiency of the support evidence” to Cire, 839; 134 at Spohn Hosp., S.W.3d 104 rather, trial findings; court’s we make an at S.W.3d independent inquiry of the entire record to 2. Scott Bader’s Abuse of the Discov- determine if the court abused its discretion ery Process by imposing the sanction. Daniel v. Kel (Tex. ley Corp., Oil 981 S.W.2d 234 Scott Bader first that the contends dis- denied) App.-Houston 1998, pet. [1st Dist.] covery “unjust” abuse sanctions are be- (op. reh’g). it discovery pro- cause did not abuse the Inc., Supportkids, cess. See In re 124 Rule of Civil Procedure 215.2 al 804, 807 (Tex.App.-Houston S.W.3d [1st “just” lows a trial court to enter 2003, orig. proceeding) (recognizing Dist.] party’s for a comply failure to with a dis that determination of whether direct rela- covery request. order or Tex.R. Civ. P. tionship exists between offensive conduct 215.2. Supreme Court of Texas imposed “necessarily and sanctions re- Corp. TransAmerican Natural Gas v. quires determining underlying whether the developed two-part Powell a test courts actually conduct constitutes an abuse of apply to determining when whether discussed, discovery process”). As “just.” sanction is 811 S.W.2d court findings listed of fact six (Tex.1991). First, there must be a direct discovery bases sanction Scott Bader for among conduct, nexus the offensive appeal, abuse. On Scott Bader attacks the offender, imposed. and the sanction findings trial court’s it abused the Spohn Hosp. Mayer, discovery process failing identify (Tex.2003) TransAmerican, (citing Strickland, Terry by altering invoices to 917). just at A S.W.2d sanction must be information, conceal customer fail- against directed the abuse and toward ing produce timely the Boothe memo- remedying prejudice in caused randum.4 party, nocent and the sanction should be upon visited the offender. Id. Terry Scott Bader contends that
Second, just identity sanctions must not was disclosed at vari Strickland’s TransAmerican, be excessive. points throughout discovery pro 811 S.W.2d ous is, at 917. That imposed sanction cess. Scott Bader also contends only 4. We note that Scott Bader assails three abuse. appeal constituting of these bases on as not *11 had been pricing information only the director of Scott customer Strickland was the are stored marked out because invoices period in 1998. Sand- Bader for short in which Scott in a warehouse either contention. dispute stone does not Pad- also store documents. Rather, competitors discovery of the sanction the basis the information had been field stated that discovery propounded that was to was in- competitive pricing protect redacted to disclosed, which Scott Bader should have trial court product. The formation for name, only not Strickland’s but also to be “in- ultimately explanation found this key played various roles Strickland with “credibility.” As adequate” lacking regard managing to Scott Bader and his recognized, the previously we have knowledge testing of the and formulation judge credibility of court is entitled to that, points out Texigel. of Scott weight and the of their testi- the witnesses it the iden- requested when was disclose hearing. mony in the context of knowledge regarding tity persons of with Daniel, that finding at 232. A testing matters and formulation of such as had been altered to conceal the documents Texigel knowledge changes or with of from Sandstone is customer information Texigel made to since Scott Bader court, noted the trial supported, also as that responded employees none of its U.S. that, informa- fact while customer knowledge. Though had such such re- of the marked out on some tion had been correct, technically it could sponse was invoices, not have re- other invoices did misleading. also be as viewed Strickland information. dacted customer was a director of Scott Bader at a time person critical to the lawsuit and was a record, on the we cannot conclude Based knowledge regarding with matters central its discretion that the trial court abused to Sandstone’s claims in this suit. Accord- abused the dis- finding that Scott Bader say cannot ingly, we the trial court abused invoices in a covery process by producing by imposing its discretion sanctions for conceal customer in- manner calculated to Scott Bader’s failure to disclose Strick- formation. conjunction identity
land’s with the roles contends that Bader further played knowledge possessed. he and the he arose from its failure no abuse challenges Scott Bader also the trial until produce the Boothe memorandum that finding produced court’s Scott Bader trial. It is uncontested five months before customer invoices a manner calculated pro memorandum was that the Boothe from to conceal customer information part time duced for the first Sandstone; is, Bader re- on March 8,000-page production document the in- dacted customer information from page 17-page first of a 2005 and is the produced voices to Sandstone to hide document. customers, may
identity of other reveals that the docu- The record also product complaints similar to have had Bader, by Scott with- produced ment was those Sandstone. memorandum, July out the Boothe motions, page second document response to the sanctions 2004. The top, “1” on the its had a handwritten number Bader offered the affidavit of Padfield, page ap- right corner to make second president, explain Nick page the first pear as if it were part the invoices had been redacted as document, than the second. busi- rather ordinary course of Scott Bader’s point- was never ness, information from deletion of the document to conceal Sandstone, rather, Padfield, 17-page ed out to According Sandstone. *12 “ad- Bader’s affirmative defenses ultimately with Scott produced document was Bader con- toward the end to this issue.” Scott Boothe memorandum dressed production. abused its discre- 8,000-page document that the trial court tends that at least further reveals without by imposing The record these sanctions tion witnesses, including the memoran- sanc- eight imposition of lesser considering the author, Boothe, deposed dum’s David were agree. tions. We received the memo- Sandstone had before imposed discov- Because sanction record, Therefore, based on the randum. than no more severe ery abuse should be that the trial court cannot conclude we legitimate pur- necessary satisfy that by finding Scott abused its discretion consider the avail- courts must first poses, the Boothe producing Bader’s manner of stringent sanctions ability of less conduct. was sanctionable memorandum fully lesser sanctions would whether such mentioned, court the trial As TransAmerican, promote compliance. See only not on these awarded sanctions based end, To this the record at 917. 811 S.W.2d abuse, but also three incidents of that the court considered must reflect conduct listed on the other sanctionable Otis Ele- availability of lesser sanctions. that, in recognize the sanctions order. We Parmelee, 179, 181 850 S.W.2d vator Co. v. sanctions, enti assessing the trial court is Blackmon, (Tex.1993); Corp. v. Chrysler the entire course of tled to consider (Tex.1992). 844, In this 852-53 841 S.W.2d Jacobson, 218 litigation. Broesche “The explained, the Cire court respect, 267, (Tex.App.-Houston [14th Dist.] S.W.3d the available sanc- analyze trial court must denied). the entire Based on pet. explanation a reasoned tions and offer we the instances of misconduct record and im- the sanction appropriateness to the discussed, court conclude the trial have we 842; at see also GTE posed.” by finding that did not abuse its discretion Tanner, 856 Corp. v. Sys. Commc’n in sanctionable engaged Bader had Scott (Tex.1993). 725, 729 S.W.2d discovery process. during conduct Here, in the sanc- stated the trial court Next, trial determine whether the we imposed tions order by assessing its discretion court abused necessary because “appropriate and Bader. challenged the sanctions compli- promote a lesser sanction will Judgment Limit- Partial Default continued, has con- It “The Court ance.” Dispute ing Issues avail- of all lesser possibility sidered mentioned, or the trial court circumstances, As these options. able Under be instructed dered however, avail- is no lesser sanctions there specifi did not meet product deter Defendant to address and able specifications pro and that cations preserv- conduct while BADER’s SCOTT had Bader to Sandstone vided rights.” ing SANDSTONE’S modified, as a which was treated been us, “[w]e before other courts against Scott default Like
partial unsupported no to such give deference pro court Concomitantly, the trial Bader. the trial court’s regarding conclusions” rebutting “the Bader from hibited Scott ' GTE, of lesser sanctions.5 consideration and struck presumptions factual above” re-depose witnesses those may have con- example, the court 5. For before Sand- depositions were taken following whose lesser or more of the sidered one the docu- (1) opportunity to review had the to allow stone continue the trial sanctions:
815
why
Adkins,
or indicate
729;
lesser sanctions
In re
considered
856
at
accord
S.W.2d
deter Scott
Worth,
would not
lesser sanctions
(Tex.App.-Fort
S.W.3d
rights
preserving
Cire,
Bader “while
orig. proceeding); cf.
Sandstone.”6
(“The
in the trial
at 842
discussion
5.W.3d
stating
goes beyond simply
court’s order
comply
court did not
The trial
effec
sanctions would not be
that lesser
TransAmeri-
prong of the
with the second
*13
extensive,
tive;
rea
the order contains
partial
that the
de
by insuring
can test
appropriateness
explanation
soned
against
assessed
judgment sanctions
fault
demonstrating
imposed,
of the sanction
guid
not excessive.
Scott Bader were
trial court considered the avail
that the
discovery-abuse
ing
respect
rules with
ability
stringent sanctions as we
of less
trial court to con
required sanctions
Beyond
general
required.”).
have
this
availability of
sanctions.
lesser
sider
of the offensive
description
statement and
GTE,
729;
at
TransAmeri-
856 S.W.2d
See
conduct,
trial court in this case offered
can,
Based on the
at 917.
811 S.W.2d
appropri
explanation
no reasoned
of
us,
the trial
we hold
record before
Cit
imposed.
of the sanctions
See
ateness
(1)
ordering
by
court abused its discretion
Hanke,
03-04-00641-CV,
v.
No.
iBank
Bad-
that Scott
that the
be instructed
(Tex.App.-Austin
at *3
arguing a meritorious imposing attorney’s a judgment rather undertaking additional or sanctions, fees as it is not invalid because necessary by improperly made withheld Instead, attorney’s fees. Con party prove Bader com- fails to documents.” eight expense. suggests witnesses at Scott Bader's 8. Scott Bader that one lesser sanc- re-depose tion would be to allow Sandstone to
817 Gonzales, 13-04-426-CV, we conclude that Scott Accordingly, No. 2006 dit v. trial court has not shown that the 2788251, at *12 (Tex.App.-Corpus WL $68,000 by awarding discretion abused its 2006, (mem.op.) no Sept.28, pet.) Christi sanc- expenses fees and attorney’s Glass, 683, 688 (citing Glass v. 826 S.W.2d tions. denied)). 1992, -writ (Tex.App.-Texarkana attorney’s fees are assessed as
“When Violating In Li- B. Sanctions sanctions, necessity or reason proof no mine Order Armogi v. required.” ableness is Miller (collec and her law firm Wright da, (Tex.App.-Houston appeal the trial tively “Wright”) also denied); Brantley writ see [1st Dist.] of an Wright’s sanction for violation court’s (Tex.1984). Etter, S.W.2d order, resulting in a mistrial. As in limine Therefore, by focusing on the lack of evi- mentioned, trial court assessed mone dentiary value of Waters’s affidavit $79,012.40 the amount of tary sanctions in necessity at prove the reasonableness and and her law firm for “rea against Wright torney’s actually fees earned Sand necessary” attorney’s fees sonable and attorneys, has not dem stone’s Sandstone from voir incurred expenses onstrated that the trial court abused its hearing on the motion for through dire $68,000 it in at discretion when awarded trial. sanctions related to the first *15 torney’s fees as sanctions. See Allied As appeal her firm contend on Wright and Ins., County v. INA soc. Mut. 803 S.W.2d properly did not establish that Sandstone (Tex.App.-Houston Dist.] [14th represent The fees awarded these fees. writ). 1991, no by incurred Sandstone for legal the fees Moreover, the record indicates that preparation of trial one week’s worth attorney much of Sandstone’s time was and her firm attending Wright trial. by affected the conduct. At sanctionable that should receive contend Sandstone prepara- one week of trial eight depositions least were taken the fees for the commenced tion the second trial in because Sandstone locations across the United immediately after the mistrial. almost States without the benefit of the Boothe that, at Wright point her firm also out addition, memorandum. the record re- hearing, present- the prepared flects that Sandstone’s counsel present and did not lump ed one sum bill compel discovery two motions to and en- affidavit, bill, an or sworn tes- an itemized gaged in communications with Bad- timony support the award. in an period er’s counsel over a substantial information. attempt to obtain discoverable Wright shows that The record summary Though filings from the trial challenges in the never raised are not judgment proceedings contained appeal on re court that are now raised record, reasonably can it be surmised a com garding preserve the sanctions. To spent that counsel time ad- Sandstone’s review, a must appellate party plaint dressing the no-evidence motions for sum- request, objection, or presented a have ultimately mary judgment that were stating specific to the trial court motion The rec- stricken in the sanctions order. grounds ruling for the desired. See Tex. R.App. 33.1(a)(1). counsel previously ord further shows Sandstone’s P. We have conjunction with failure to raise prepared filings party’s several rule to a applied the trial court. objections for sanctions and attended to sanctions the motion Valdez, 725, 728 hearings request. on the sanctions See Valdez (Tex.App.-Houston no Bader contends that the should [1st Dist.] writ) (holding appellant objection waived be reversed and remanded because the trial court re- ap- to sanctions raised for first time on sanctions rendered jury charge. sulted in an erroneous peal). By failing complaints to raise the presented, Wright gave now never trial Background A. Relevant to Claimed opportunity court the to correct the al- Charge Error leged Wright error. We hold that has discussed, challenges presented appeal waived the on As a mistrial was declared violating to the sanctions assessed for based on misconduct of Scott Bader in limine order. See id. trial. trial during began The second shortly September after the mistrial. On Regarding C. Conclusion Sanctions 15, 2005, trial, in the midst of the trial Appeal signed “Supplemental court Order On Sanctions,” provided, in relevant summarize, To we hold that the trial part, as follows: court by ordering abused its discretion (1) be instructed during requiring Issues have arisen specifications did not meet application August Sanctions or- product specifications provided and that der. It is Scott Bader to Sandstone had been modi- warranty ORDERED that the breach of fied, which instructions the trial court or- damages is from Defen- established with partial judg- dered be treated as a default dants’ breach to be submitted to the (2) limiting dispute; ment issues in certain jury; may bring and Defendant forward of Scott Bader’s affirmative defenses be rely any evidence that does not (3) stricken; prohibit- Scott Bader be deposition stricken to establish causation using testimony ed from at trial for failures other than affirmative *16 eight identified witnesses.9 We hold that Plaintiffs conduct. defense of the trial court did not abuse its discretion ORDERED that Defendant’s affirmative by assessing monetary against sanctions general defenses and its denial $68,000 in Scott Bader the amount of for stricken to the extent that the Court’s by assessing abuse and mone- of is- prior preclude litigation order to tary against Wright and her firm issues. rebutting sues established $79,012.40 violating in the amount of Defendants are not entitled to raise in limine order. to quality control issues about Sandstone negate product evidence that was Accordingly, Bader’s third is Scott issue reaching specification out of before sustained, part, part. in in and overruled Sandstone.... Appeal Judgment Rendered the case to the presented When was Following Jury Trial jury, gave following the court instruc- Next, in 01-06- tions: appellate cause number 00593-CV, propriety we determine the INSTRUCTIONS BINDING in money judgment Sand- rendered Bader, against binding
stone’s favor Scott follow- The instructions are following issue, jury jury. trial. In third on the ing the Scott striking complain and the trial court's order 9. We note that Scott Bader did not summary judgment order that Scott Bader defendants’ motions for of the trial court’s rulings. summary judgment Terry a at could not use Strickland as witness “false, in engaged Bader had a given binding You are these instructions Scott deceptive practice” or purposes misleading, for all in this the Court and that such ac- unconscionable actions govern your and to deliberations Charge damages cause of producing tions were Jury Questions. to the and answers jury found that The also Sandstone. Jury The is instructed that: specifications modification of Scott Bader’s (1) Bader specifications The Scott specifications and failure to meet was prod- for the provided producing damages cause of Sandstone. during uct mid-1999 and 2001 were Bader’s jury The further found modified. knowing- DTPA violations were committed (2) shipped The that was be- ly. damages to the actual addition tween mid-1999 and 2001 did not jury question, jury awarded the first specifications Bader meet the $225,000, $25,000 $950,000, awarded provided to Sandstone. knowing for each of Scott Bader’s viola- in- binding These instructions are also tions of the DTPA. structions. You are further instructed further found that jury that: negligent fraud and mis- had committed Specifications Modification of regard to these representation. With specifications Such modification of the is claims, jury awarded Sandstone a breach of the sales contract between $300,000 necessary for the reasonable and Scott Bader and Sandstone. repair replacement cost of the or Such modification is a breach of the $30,000 coatings and for Sand- failed roof warranty from Scott Bader to Sand- jury profits. Lastly, the past stone’s lost stone. $486,000 attorney’s awarded Sandstone Specifications Failure to Meet fees. specifications Such failure to meet is a rendered The trial court
breach of the sales contract between damages the actual awarding Sandstone Scott Bader and Sandstone. Question Number found modification is a breach of the [sic] Such $950,000 $3,375,000, in addi- totaling warranty from Scott Bader Sand- damages tional awarded for Scott stone.10 violation, $486,000 for knowing DTPA *17 also attorney’s fees. The trial court jury question following The first the $903,667 inter- pre-judgement awarded binding jury, instructions asked the “What est. cash, money, any, paid sum of if if now in fairly reasonably compensate
would and issue, In third Scott Bader contends its Products, damages, Inc. for its Sandstone by including erred the that the trial court any, if that from modification of resulted jury. in the “Binding Instructions” specifica- failure to meet specifications and response In to this of Review
tions as instructed?” B. Standard Bader a question, jury the awarded Scott trial court’s review the We $3,375,000 damages. total of in actual for an jury of instructions submission Trad of discretion. See Plainsman questions pertained The next four to abuse Crews, 786, 791 ing found Co. v. jury Sandstone’s DTPA claim. The warranty from is a breach of the Presumably, the trial court intended to in- fications to jury Scott Bader Sandstone. speci- struct the that such failure meet 820
(Tex.1995). jury in- tions When incorrect each constituted breach of contract warranty. we if given, only Though struction was reverse the breach of these “ reasonably expand origi- “was on instruction calculated additional instructions the language cause the of an nal probably did rendition instructional found the ” Bed, original order, Be- 22 improper judgment.’ August Bath & sanctions the Urista, yond, 211 record in- Inc. v. S.W.3d 757 indicates that these additional (Tex.2006) (quoting original Reinhart 906 from the Young, structions derived sanc- (Tex.1995)); face, September S.W.2d 473 see Tex. tions. On its the order 15 R.App. 44.1(a)(1). supplement We examine the entire indicates that it served to the August whether 22 clarify record to evaluate the instruction sanctions order and to probably caused the im- how the 22 August rendition of an sanctions should be Urista, words, 211 proper applied. at 757. In the September verdict. other S.W.3d 15 an independent sanctions order was not Propriety Binding C. Instructions order, sanctions but was supplemental August order on the 22 dependent sanc- issue, In third its Scott Bader contends Moreover, Binding tions. the Instructions that Binding the were im- Instructions jury that Scott Bader’s con- instructed proper. holding in appellate Given our duct constituted both breach contract cause that number 01-05-00940-CV warranty Septem- breach of while the court abused its discretion order- Supplemental ber 15 Order On Sanctions ing, order, August in its that sanctions ordered only warranty that “the breach that jury instructed be and did not [claim] is established” address specifications meet did not the breach of contract claim. that product specifications provided by modi- Scott Bader Sandstone had been conference, charge At the Scott Bader fied, that the Binding we conclude Instruc- objected Binding to the Instructions. given jury improper. to the were tions doing, objec- so Bader renewed its tion to that stating the sanctions order Binding contends that In- and, it “did if not commit sanctions abuse” they proper structions were because did, it could the abuse have been August on the sanctions or- based by les'ser sanctions. Scott Bader der remedied September Sup- but rather on the objected grounds also or, plemental Order On Sanctions alterna- Binding “expansion were an from a Instructions tively, resulted directed verdict order.” granted [original] Specifi- charge at the conference. Sand- cally, objected language to the Scott Bader that Scott waived stone also asserts Binding Instructions instruct- objection Binding Instructions. Bader’s modification all three ed disagree We with of Sandstone’s specifications failure to meet and its contentions. *18 specifications breach con- constituted of that cognizant Binding We are the In- warranty.. tract and breach of Scott Bader only jury structions not instructed that the asserted impermissi- that such instruction product specifi- Scott Bader’s did not meet bly expanded origi- language on the the that the specifications cations and Thus, nal order. Scott Bader sanctions provided by Scott Bader Sandstone had In- preserved challenge Binding to the its modified, provided August been in the structions. order, 22 also the but instructed jury contends that the Bind- that Scott modification Sandstone also specifications specifica- ing failure to Instructions were not derived from meet
821 any, if in money, paid if now 22 sum of August sanctions order but were based “What reasonably compen- cash, fairly a directed request on a Sandstone for would Products, charge at the conference based Inc. for its dam- verdict sate Sandstone at trial. Such conten- only on the evidence from modifica- any, if that resulted ages, by the record. supported tion is not to meet and failure specifications tion of as instructed?” specifications objected on the Scott Bader When im- Binding the Instructions ground that Question 1 was a Immediately following expanded August on the sanc- properly related to Sandstone’s questions series of the trial court stated that language, tions jury positive made a DTPA claim. The regard to “I’ve instructed the verdict with Bader re- liability finding against Scott that the Only that.” after comment From DTPA claim. garding Sandstone’s trial court did Sandstone move for directed charge, it cannot be deter- the face of the requesting In the directed ver- verdict. the jury awarded mined whether dict, a requested stated that it on the $3,375,000 damages in actual based that verdict based on the evidence directed liability findings trial court’s instructed presented was and on the sanctions order. of contract or breach Sandstone’s breach point, At which the trial court stated claims, award warranty or whether the previously granted it it had a believed jury’s liability DTPA on the was based in the directed verdict on the issues set out however, that the apparent, It is finding. Thus, it Binding apparent Instructions. is by the im- finding shaped damages was Binding from the record that the Instruc- Binding Instructions. proper tions do not arise from directed verdict Ques- in damages finding reaching evidence, Binding on the rather the based considering limited to jury tion was previously Instructions were based on the that “resulted from only damages those ordered sanctions. and failure to specifications modification im- they were derived from the Because (Em- as instructed.” specifications meet sanctions, proper August we conclude added.) result, if even phasis As the trial court abused its discretion liability DTPA based on the award was it Binding when included the Instructions only DTPA finding, violations Next, in charge. we determine wheth- Ques- in awarded damages which could be harmful. Binding er the Instructions were Bad- arising [Scott tion 1 those “from and fail- specifications modification of er’s] D. Harm as instructed.” specifications ure to meet mentioned, As the trial court’s Thus, liability theory of which regardless $3,375,000 in actual awards Sandstone support found to jury positively corresponds amount to the damages. This Question damages response award damages total of actual awarded amount Binding Instructions hold that we Question response im- the rendition of an caused probably Binding immediately followed the which Tex.R.App. 44.1(a). proper judgment.11 See Question unpredi- Instructions. was read, third issue. Scott Bader’s We sustain damages question, cated findings jury’s of actual dependent on the court’s 11. We further hold Question $950,000 response 1. See Tex damages damages in un- award of additional *19 (Vernon fees, 17.50(b),(d) DTPA, $486,000 § attorney’s Bus. & der the for Com.Code Ann. Int'l, Solis, $903,667 951 Supp.2007); Inc. v. pre-judgment are Green and for interest reason, 384, (Tex.1997). For this S.W.2d 390 supportable. Each of these awards is 822 Disposition Appeal
E. tion, justice we conclude that would be by remanding best served the case. We one, In issue Scott Bader chal may damages remand for new trial when lenges admissibility of Sandstone’s improperly by plaintiff, calculated expert, asserting expert causation that the justice requires and the interest of that the opinion was unreliable and thus inadmissi plaintiff given opportunity be to show that, alleges ble. Scott Bader further be proper damages. of his measure Wal- expert’s opinion only cause the was the Northcutt, 12-03-00247-CV, No. ters causation, evidence of “there is no evidence 2005 341694 at*10-ll (Tex.App.-Tyler WL support theory.” Sandstone’s causation 10, 2005, pet.) (mem.op.); Feb. no Varel two, In issue Sandstone contends that the Co., Mfg. Acetylene Oxygen Co. v. 990 legally support evidence was insufficient to 486, (Tex.App.-Corpus S.W.2d 500 Christi damages by awarded re 1999, Gaines, pet.); no Williams v. 943 sponse Question 185, (Tex.App.-Amarillo S.W.2d 193-94 recognize legal sufficiency We that the 1997, denied); Freight Sys., writ A.B.F. challenges by raised Scott Bader in both Serv., Inc., Imp. Inc. v. Austrian 798 issues, successful, if result rendition. 606, 1990, (Tex.App.-Dallas 616 S.W.2d Indus., Heine, Holt Atherton Inc. v. 835 denied). appropriate writ Remand is also (Tex.1992) 80, that, (recognizing S.W.2d 86 case, reason, any when a has not been rule, general “when we sustain a no fully developed. United States Fire Ins. evidence point error after a trial on the Carter, 2, (Tex.1971); Co. v. 3 S.W.2d merits, judgment we render on that Co., Prop. Kondos v. Lincoln 110 S.W.3d point.”). separately We do not address 2003, (Tex.App.-Dallas pet.); no two, if issues one and however. Even Serv., Bayway Inc. v. Ameri-Build sustained, resolution issues one and two (Tex. Constr., L.C., greater would not result in relief for Scott App.-Houston pet.). no [1st Dist.] Bader, case, in this than that afforded Here, the sanctions ordered the trial charge our resolution of the error ad- shaped presentation court affected and respect dressed with to Scott Bad- above trial, development during of this case is, er’s third issue. That we would still Bader. Had both Sandstone if remand instead of reverse and render levied, the sanctions not been it seems we issue or sustained either one two be- indisputable that both sides would have prevented cause the trial court’s sanctions trial. presented during additional evidence being properly developed this case from light In of our today reversal sanc- presented at trial. cause number 01-05- appellate tions 00940-CV, we conclude that this case is
Appellate courts have broad properly proceedings remanded for further for a trial in the discretion to remand new Tex.R.App. liability damages. on the issues of See justice. interest of See P. Tex.R.App. 44.1(a)(1). 43.3(b). P. case, regardless In this of wheth presented legally er Sandstone insufficient Conclusion support evidence to the amount of actual court, 01-05-00940-CV, trial or no. damages appellate awarded cause affirm judgment as to presented insufficient evidence of causa- we court’s we need not address Scott Bader’s fourth interest. separately challenging pre- the award of issue
823 The Test for Just Sanctions the monetary sanctions. reverse the We as discussed judgment, of the portion set out a Supreme Court has The Texas (1) in- above, ordering jury the be determining whether two-part test product did structed just and therefore within sanctions are speci- and that specifications meet trial court. TransAmeri- discretion of the provided by Scott Bader Sand- fications Powell, 811 Corp. v. can Natural Gas modified, instruc- stone had been (Tex.1991). That test re- 917 S.W.2d court ordered be treated as tions the trial relationship be “a direct quires that there the is- judgment limiting default partial offensive conduct and ... between the (2) Bad- dispute; in certain of Scott sues i.e., that the sanction be imposed,” sanction stricken; defenses be er’s affirmative and toward against the abuse “directed (3) prohibited using be from Scott Bader by the prejudice caused remedying testimony eight trial the identified at the sanctions not and that party” innocent witnesses, further and remand the case for In regard Id. at 917. be “excessive.” proceedings. required the court is prong, the second stringent availability of less consider 01-06-00593-CV, cause no. appellate sanc- and whether such lesser sanctions judgment we of the trial court reverse fully compliance. Id. provide tions would proceedings.12 and remand for further the bounds within These standards set to exercise its which the trial court is KEYES, dissenting. Justice sanctions under Texas discretion to assess KEYES, Justice, EVELYN V. dis- governing Procedure 215 Rule of Civil dissenting. sub- covery Id. That test has been abuse. Spohn Hospital v. sequently reaffirmed respectfully I dissent. I would hold that (Tex.2003) 878, 882 Mayer, 104 S.W.3d against the sanctions assessed 917) TransAmerican, at (citing S.W.2d the discretion of the trial were well within Cummings, 134 S.W.3d and Cire requirement court and that there is no (Tex.2004). rejection explain that the trial court when, here, the trial lesser sanctions Trial Sanctions Order Court’s offending party’s court’s order detailed the carefully articulated The trial court’s directly spe- abuses and tailored sanctions out in order in this case is set cifically authorized Rule 215 of the Tex- made majority opinion. That court Procedure to cure the as Rules Civil Bader had findings that Scott prejudice party explicit to the innocent caused faith en- “knowingly flagrant and in bad I would affirm the abuse. (1) abuse,” including gaged court. contract, warranty, and breach of that the also found breach of 12. We are mindful DTPA, still entitled to damages it is liability awarded to Sandstone violation recovery its alternate fraud negligent misrepresenta- elect under under its fraud and claims, negligent misrepresentation theories. The juiy For these tion claims. $300,000 adequately damages parties briefed the merits have not awarded Sandstone them; how- repair- for us to address necessary costs of of these claims the reasonable and ever, permit parties to address these we ing replacing its customers’ roofs and or $30,000 they rehearing, if so on profits. elected alternate theories for lost Schleider, Bank, S.S.B. v. choose. See Beal recover under these theories. Sand- not to (Tex.App.-Houston 650 n. we reverse the stone has asserted should denied) (op. reh’g). pet. on judgment, [14th Dist.] which was based trial court's *21 “withholding responsive integrity judicial critical documents and core functions of this 8,000 until production of more than Court and its all of rulings.” For these 1, 2005, pages of documents on March reasons, the trial court found Scott Bader depositions after the in the lawsuit had prejudiced ability had Sandstone’s to (2) already place”; taken “producing docu- case, present its and it concluded that a in a ments manner calculated to conceal “directly sanctions order related to the of- (through key information removing the fensive conduct ... appropriate is and page first of a out marking document and necessary because a lesser sanction will documents), information in other with con- not promote compliance.” flicting inadequate and explanations for trial The court sanctioned this behavior (3) credibility”; “pre- the same that lack by requiring that be instructed senting deposition witnesses with such critical documents and information con- (1) presume are to that prod- “You (4) produced”; “failing cealed or not to uct shipped that was between mid-1999 Terry name Strickland as witness with and 2001 not the specifications did meet facts, knowledge produce of relevant or to Sandstone, provided Scott Bader to and documents, responsive related Strick- (2) specifications that that Scott role land’s as director of Defendant provided Bader to Sandstone for the BADER, SCOTT his role ás the ‘main product during mid-1999 and 2001 were lead’ Defendant SCOTT BADER’s tran- modified.” sition from using Co-Defendant Good- The trial court ordered that Bader services to those of rich[’s] Co-Defendant indemnitee, NPCI, per- and its were not Para-Chem, supervision his direct over factual presumptions mitted rebut specific regarding issues the formulation above, set forth and it affirmative struck testing product, and of Defendant’s and defenses to the issue. specific his direct involvement in re- issues addressed court could not reports problems”; lated to also ruled Scott Bader customer of (5) “failing Terry produce corporate rep- as a use Strickland as a witness at knowledge “may resentative a witness with and Scott Bader use that . (6) requested”; “filing and two no-evi- testimony any from a deposition witness summary judgment dence motions for on deposition unless BADER first SCOTT 23, 2005, February December depo- demonstrates to the Court such respectively, when Defendant SCOTT production sition was taken after full BADER and its counsel knew that documents.” The trial court then identi- production of documents and witnesses eight deposed fied witnesses who were be- was deficient.” “production fore Bader’s of critical Finally, documents on March 2005.”
The trial court found that Scott Bader’s the trial court ordered that “actions were calculated to conceal evi- $68,000 pay attorney’s in sanctions for fees dence that would indicate ... that [its] at- expenses incurred specifica- did not meet its stated discovery tions; tributable to Scott specifica- and ... the stated proceeded abuse. The then to a full modified.” case tions It further found trial in Bader was allowed to which Scott pat- that Scott Bader’s actions “indicate a itself, foregoing defend limita- history discovery faith with tern or bad tions, abuse, required prove and Sandstone was disregard demonstrate callous case, damages responsibilities including proving under the that its rules, significantly interfere with the resulted from Scott Bader’s actions. repair or re- necessary cost Additional misconduct Sandstone’s coatings”; decla- roof during placement trial resulted of the failed counsel *22 necessity litigation and the of profits; ration of a mistrial lost past Sandstone’s at again. liability The sanctions order beginning with Sandstone’s costs associated during in was issued the appeal customers; issue this seeking fees application to its trial, hearing the second after outside coating County, approval Dade Florida jury, clarify to what was to presence of the material; property of and mate- and costs due to Scott Bad- be taken as established testing coating. rial for roof was er’s misconduct what Sandstone per-
required prove. to Scott Bader was Rule 215 Sanctions Available Under that “bring mitted to forward evidence made Among expressly the sanctions rely any deposition does not stricken Rule 215 available to the trial court under for failures other than establish causation Procedure, Rules of Civil of the Texas an affirmative defense of Plaintiffs con- abuse, governing discovery are clear, trial court made howev- duct.” The (1) disallowing any order further dis- an er, affirmative that Scott Bader’s defenses any particular kind or of a covery of to the general and its denial were stricken party; kind the disobedient litigation of issues precluding extent of (2) any portion all or charging an order rebutting issues and that the established of or taxable expenses of the Scott Bader was “not entitled to raise against court costs or the disobedi- both quality control issues about Sandstone to him; attorney advising party ent or the negate product that out evidence the was specification reaching of before Sand- (3) regarding an order that the matters stone.” any made or other which the order was shall taken to be designated facts be jury presented the case was to the
When the of the ac- purposes established for retrial, in the the was instructed that (1)“the claim of the tion in accordance with the specifications order; party obtaining dur- the provided product to Sandstone for the (2) modified”; ing mid-1999 and 2001 were (4) to allow the dis- refusing an order shipped that was between “[t]he support oppose or des- party obedient speci- mid-1999 and 2001 did not meet the defense, prohibiting or ignated claims or Bader provided fications Scott to Sand- mat- introducing designated him from (3) stone”; modification of the “[s]uch evidence; ters specifications is a breach of the sales con- (5) pleadings out or striking an order tract between Bader and Sand- thereof, dismissing or ... with or parts (4) stone”; and modification is a “[s]uch proceed- the action or prejudice without warranty from Scott Bader breach of thereof, rendering or ings any part or jury question The first Sandstone.” against the disobe- judgment by default following binding instructions asked party; dient if jury, money, any, sum of if “What 215.2(b). P. The rule further Tex.R. Crv. cash, fairly and reason- paid now would provides: Products, Inc. ably compensate Sandstone (8) orders any foregoing lieu from damages, any, for its if that resulted thereto, court shall or in addition specifications and failure to modification obey failing to require party specifications meet as instructed?” him, or attorney advising order or the to consider as ele- jury was instructed both, time as ordered pay, at such damages solely reasonable “[t]he ments fully the trial court court, in- I would hold expenses, the reasonable for the fees, prong the first of the test by the fail- satisfied cluding attorney caused articulated ure, just impositions that the fail- of sanctions the court finds unless TransAmerican, supreme court substantially justified or ure was “a namely, that there be requirement circumstances make award other n expensesunjust. conduct, of- among the direct nexus fender, imposed.” See and the sanction Id. at Spohn Hosp., S.W.3d *23 however, not even majority, The does Application of the Test of Abuse the trial court’s satisfaction discuss Assessing in of Discretion test. of the TransAmerican prong first Sanctions Instead, directly the second it turns to Here, carefully articulat- the trial court the trial prong, “mandates which sanctions or- in its oral and written ed stringent measures be- court consider less hearing after notice and ders —issued —the at settling sanctions.” Id. fore on severe narrowly of its tailored justification of each targeting of Ignoring the trial court’s chosen from Each sanction was sanctions. ongoing to address misconduct sanctions by Rule 215.2 to expressly permitted one order in the sanctions explanation and its trial court exactly the behavior the address the ma- imposed, the sanctions for each of committed found to have been “conclusory” the trial court’s jority finds no evidence in the record Bader. There is pos- “considered the conclusion that it had exactly what Bader did not do options” but sibility of all lesser available do, and the trial court found it did the “[ujnder circumstances, ... no less- these There is majority acknowledges as much. to address and sanctions are available er Bader’s actions con- question no that Scott BADER’s con- deter Defendant SCOTT designed abuse stituted severe preserving while SANDSTONE’S duct its keep presenting from Sandstone Bader, Wooley, Kern & rights.” Wright, court first entered sanc- case. The trial Chemi- Pigments L.LP. National & prohibiting at specifically tions directed Products, Inc., cals, No. Inc. profiting from its con- Scott Bader from 802, 01-05-00940-CV, 248 S.W.3d key and of a wit- cealment of documents (Tex.App.-Houston Dist.] Feb. [1st Nevertheless, Scott in the first trial. ness h.). majority holds that no The pet. during tri- its misconduct Bader continued its discretion be- trial court abused the declared, so that al, a mistrial was “unsupported,” this conclusion was cause During the everyone had to start over. footnote, sugges- and, it offers its own in a trial, the hearing a outside second after might the trial court for sanctions tions jury, the court issued presence of the Bader, at 814. have considered. appeal, at order issue written sanctions view, misconstrues majority my In targeted sanctions clarifying specifically quotes it from controlling language Bader, and it instructed against Cire, directly it at trial point At no did the jury accordingly. Cire, is holding in contravenes penalty” enter “death court authority. I find Cire controlling would from prevented Scott Bader have would case with the sole with this be on all fours at all. Sandstone presenting any defense levied in Cire that the trial court exception its case and its obliged prove was still flagrant discov- penalty sanctions death damages. spoliation instruction abuse, stringent sanction: ery while the trial court this case to, directing it to assume not. did unfa- have been missing audiotapes would Cire, plaintiff produce refused to it Cummings” and concluded vorable to case audiotapes proof critical to the of her refusing to erred that the trial court the defendant and then deliberate- against Id. The su- sanctions. consider lesser or- ly destroyed being them after thrice petition for re- preme granted court produce them. See id. at 841. dered to specifically “to consider view Cire observed, supreme court and to penalty sanctions issue of death audiotapes sought Because the Cire a trial court’s sanctions examine whether proved disproved either or would have why every conceivable order must recite claims, Cummings’s her destruction of securing sanction would be ineffective justifies they would presumption them before curing prejudice compliance record, it have done the latter. On this striking pleadings.” Id. at 888. was within the court’s discretion *24 appeals, the reversing In the court of deliberately Cummings determine that that, in exceptional held supreme court evidence; thus, destroyed dispositive Cire, case, penalty in even death like that in penalty death sanctions are warranted imposing without may sanctions be issued exceptional explained this case. As we long as the trial court lesser sanctions so TransAmerican, discovery sanctions Id. The “considers” lesser sanctions. adjudicate can the merits of a be used explained: court party’s party’s claims when a hindrance standard, the trial court need discovery process justifies pre- of this Under of each avail- sumption that its claims lack merit. not test the effectiveness by actually imposing able lesser sanction TransAmerican, (citing Id. at 841 party before the lesser sanction on the 918). sum, supreme S.W.2d at rather, issuing penalty; the death approved penalty court in Cire death sanc- analyze must the available trial court virtually tions for behavior identical to explana- and offer a reasoned sanctions Bader in this case. Yet in this Scott appropriateness to the tion as Cire, case, penalty unlike no death sanc- imposed. sanction imposed. tions were Id. at 840. reversing The court’s error in appellate Cire, exactly in this case did order in The trial court
the trial court’s sanctions It court, require. supreme ex- Cire and TransAmerican described was what directly to the abuses made tailored sanctions actly the same as the error Bader and it ex- perpetuated by court majority supreme in this case. The were neces- plained why these sanctions appeals observed in Cire that the court sary specific prejudice to cure the Sand- that “the trial court abused its had held Bader’s stone caused each it failed to consider alter- discretion when Nevertheless, ap- like the court of native, it lesser sanctions and when did not abuse. Cire, majority in this case why peals lesser sanctions would not explain continued, require the trial court’s sanctions supreme court would suffice.” Id. why every conceivable order to “recite appeals “The court of also said securing be ineffective have sanction would trial court could have should it curing prejudice” before other, compliance it lesser sanctions before considered sanctions,” targeted court to the issue allow the penalty but would imposed death impede a less sanctions would appeals] suggested court of “[the on the issues on presentation of its case discovery. it See id. at 838. abused majority opinion di-
Because I believe the
rectly controlling authority, contravenes jurisdiction of the trial
interferes with the
court, rewarding and has the effect of se-
vere abuse with a retrial without fully that were
the hindrance trial court to
within the discretion of the I dissent.
impose, must
I of the trial would affirm the
court. LEWIS, Appellant,
Sherraine *25 MORTGAGE, HOME
WELLS FARGO
INC., Appellee. 06-07-00109-CV.
No. Texas, Appeals
Court
Texarkana. 29, 2008.
Submitted Jan. Bennett, Decided Feb. D. Robert D. Bennett Robert PC, Gilmer, TX, Associates, appel-
& lant. Johnson, Illmer, A.
Richard A. Chad Dallas, TX, MeCarroll, LLP, Brown appellee. MORRISS, C.J.,
Before CARTER MOSELEY, JJ.
OPINION Opinion by Justice CARTER. it, bought Sher- after she Two weeks The in- down. raine Lewis’ house burned mortgage com- paid her company surance