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Mendoza v. The Eight Court of Appeals3/7/1996
March 7, 1996
On Petition for Writ of Mandamus
Because we hold that the trial court did not abuse its discretion in denying the motion for sanctions filed by the real parties in interest, we conditionally grant Scherr's petition for writ of mandamus.
Elia Mendoza, an employee of Contico International, Inc. ("Contico"), was brutally murdered in Mexico while delivering a payroll to one of Contico's Mexican plants. Mendoza's parents Lorenzo and Elia Mendoza brought suit for wrongful death. On February 16, 1995, during a hearing on a discovery dispute, counsel for Contico observed that the Mendozas' attorney James Scherr appeared to possess a notebook and a videotape from Contico's investigation file. Contico's counsel immediately requested Scherr to submit the notebook to the trial court for an examination. The trial court declined to require Scherr to do so until Contico filed an appropriate motion. After the hearing, Contico's counsel and investigator confronted Scherr, inquiring where Scherr had obtained the notebook and videotape and accusing him of obtaining it by unlawful means. Scherr left the courthouse without responding to the questions or accusations. The same day, Contico filed criminal charges against Scherr. Contico then filed a motion for sanctions against Scherr and his clients seeking to strike the Mendozas' pleadings, the entry of a take nothing judgement and the award of costs.
On February 17, 1995, the trial court directed Scherr to submit the notebook and videotape for an in camera inspection. Through retained criminal defense counsel, Scherr tendered a notebook and his affidavit stating that the notebook was the same one he had in his possession at the February 16 hearing. Contico submitted a copy of its investigative notebook to the trial court for comparison with the one submitted by Scherr.
On February 22, 1995, the trial court held a hearing on the motion for sanctions. When Contico questioned Scherr about how he had obtained the notebook and whether it was a copy of Contico's investigation notebook, Scherr refused to answer and invoked his Fifth Amendment rights against self-incrimination. In response to other questions, Scherr testified that the notebook he submitted to the trial court was the same one he had in his possession at the February 16 hearing and that he had not made any changes to any of the documents in it.
There was conflicting evidence about the videotape. Contico's investigator Richard Acosta testified that the videotape he saw in Scherr's possession on February 16 had a label in the handwriting of Acosta's wife. Acosta also testified that the copy of the videotape his wife had labeled contained a few seconds of a Mexican television newscast that was included by mistake in copying the tape. The videotape Scherr tendered to the court contained the flaw but had a typed label. Scherr testified that he received the tape from his own investigators in Mexico. After hearing other testimony and comparing the notebooks submitted by Scherr and Contico, the trial court denied Contico's motion for sanctions.
The court of appeals conditionally granted Contico's petition for writ of mandamus, holding that Scherr's refusal to deny affirmatively that he had improperly obtained a copy of Contico's investigation notebook and Scherr's invocation of his privileges against self incrimination created a presumption that he had unlawfully obtained confidential information of Contico. ___ S.W.2d at ___ through ___. The court of appeals directed the trial court to disqualify and sanction Scherr. ___ S.W.2d at ___. The trial court complied by disqualifying Scherr and ordering him to pay $7500 in sanctions.
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