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Williams v. Jasper Exterminating Co.5/27/1999
The issue in this case is whether or not the trial court abused its discretion in ordering death penalty sanctions and dismissing appellant's suit because of an attorney's cavalier disregard of court orders compelling discovery. We hold that it did because the effect of its order was to punish an innocent party for counsel's conduct. Accordingly, we reverse the trial court's judgment.
This is a personal injury case brought by W. Patrick Burke as attorney for the appellant, Nora Williams and her husband against the appellees. Frustrated with Burke's failure to respond to discovery requests or to comply with the court's order, the appellees moved the court to dismiss the Williamses' suit. After two hearings on the sanctions motions, the exasperated trial Judge sustained the motions and dismissed the suit against all defendants. Only Nora Williams has perfected an appeal.
The appellees assert the trial court properly dismissed the Williamses' suit because Burke conducted discovery with flagrant bad faith and in callous disregard of the rules. The record supports appellees' description of Burke's conduct but does not implicate the Williamses.
Nora Williams concedes that Burke disobeyed proper discovery requests as well as the trial court's order compelling discovery. During the hearing on their motion for new trial, the Williamses testified that they knew nothing of Burke's conduct, of hearings before the court, or of the threat of sanctions. They did not learn that their suit had been dismissed until after Burke filed a motion for new trial.
The parties agree that whether or not dismissal was the appropriate sanction must be measured against the standards of Transamerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex. 1991). Those standards require the trial court to attempt to determine whether counsel, the party, or both were responsible for the failure to comply with discovery requests and orders. Id. at 917. While Nora Williams should be held accountable for discovery abuses if she is aware of Burke's conduct, she should not be punished for his conduct when she is implicated only by entrusting Burke to represent her. Id. We sustain Nora Williams's appellate complaint because it is undisputed that she was ignorant of Burke's misconduct and there is no indication that she should have been aware of that misconduct.
Appellees point to Nora Williams's testimony that she had become concerned about Burke's failure to keep her informed as evidence that she should have been aware of his misconduct. Nora Williams became concerned in April or perhaps earlier before the case was dismissed in May. At that time she told Burke of her intent to replace him if he did not keep her informed. But the record does not relate his response. The record also does not portray the Williamses as possessing experience or training that oblige them to investigate Burke's conduct regarding their suit.
Either in their briefs or in oral argument appellees have urged that they should not be made to be insurers of opposing counsel, that the trial court should not be denied the power to control recalcitrant parties and attorneys, and that lesser sanctions had not been effective. All of these concerns could have been addressed in some manner other than by imposing death penalty sanctions upon the Williamses without first ensuring they had actual notice of the court's intent to consider severe sanctions.
The judgment is REVERSED and the case is REMANDED to the trial court.
Submitted on March 25, 1999
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