Real Party in Interest Schiller P.L.L.C. v. Willie F. Moore--Appeal from County Court of Dallas County

11th Court of Appeals

Eastland, Texas

Memorandum Opinion

Real Party in Interest Schiller P.L.L.C.

Appellant

Vs. No. 11-02-00126-CV BAppeal from Dallas County

Willie F. Moore

Appellee

Schiller P.L.L.C. (Schiller) appeals from the trial court=s order for sanctions. Willie F. Moore filed suit against Audra F. Turner for personal injuries resulting from an automobile collision. Schiller represented Turner in the suit. The trial court entered an order on August 30, 2000, requiring the parties to attend mediation. Turner did not attend the mediation. The trial court granted Moore=s motion for sanctions, struck Turner=s pleadings, awarded Moore a default judgment as to liability only, and ordered that the trial go forward as to damages only. On May 16, 2001, the trial court vacated its original order for sanctions. On May 30, 2001, the trial court held a second hearing on Moore=s motion for sanctions. On July 2, 2001, the trial court entered its second sanctions order which granted in part Moore=s motion for sanctions and stated that Schiller and Turner were jointly and severally ordered to pay to Moore=s counsel $2,400 for Turner=s failure to appear at the mediation. It is from this order that Schiller appeals.[1] We reverse and render.

In its sole issue on appeal, Schiller argues that the trial court erred in entering the order for sanctions. A trial court=s imposition of sanctions is reviewed under an abuse of discretion standard. In re Bennett, 960 S.W.2d 35, 40 (Tex.1997); Chrysler Corporation v. Blackmon, 841 S.W.2d 844, 853 (Tex.1992). The legitimate purposes of discovery sanctions are threefold: (1) to secure compliance with discovery rules; (2) to deter other litigants from similar misconduct; and (3) to punish violators. Chrysler Corporation v. Blackmon, supra at 849. A discovery sanction must also be just. TEX.R.CIV.P. 215.2(b); Chrysler Corporation v. Blackmon, supra; TransAmerican Natural Gas Corporation v. Powell, 811 S.W.2d 913 (Tex.1991). Whether an imposition of sanctions is just is measured by two standards. TransAmerican Natural Gas Corporation v. Powell, supra.

First, a direct relationship must exist between the offensive conduct and the sanction imposed. TransAmerican Natural Gas Corporation v. Powell, supra. The trial court must at least attempt to determine whether the offensive conduct is attributable to counsel only, to the party only, or to both. TransAmerican Natural Gas Corporation v. Powell, supra. Second, just sanctions must not be excessive. TransAmerican Natural Gas Corporation v. Powell, supra. A sanction imposed for discovery abuse should be no more severe than necessary to satisfy its legitimate purposes. TransAmerican Natural Gas Corporation v. Powell, supra. The trial court must consider not only the availability of less stringent sanctions but also whether such lesser sanctions would fully promote compliance. TransAmerican Natural Gas Corporation v. Powell, supra.

The record shows that Insurance Depot was Turner=s insurance carrier. At the first hearing on Moore=s motion for sanctions, the trial court stated to an attorney in the Schiller firm: AI=m not aware of any reason to be questioning your conduct whatsoever. I am very aware of Insurance Depot=s conduct in this Court.@ At the second hearing on the motion for sanctions, the trial court stated in reference to the Schiller law firm:

There is no indication that you or your firm have ever done anything inappropriate in connection with any of this Insurance Depot stuff, for lack of a better word. However, it is apparent to this Court that Insurance Depot is driving the bus and that your client is not. What am I to do?

The court further stated: AI have an innocent defendant and an innocent law firm.@ Although the trial court found that Turner failed to attend the mediation and that Turner offered no excuse for her failure to appear, the trial court=s statements indicate that there was no wrongdoing on the part of Turner or Schiller. Therefore, there is no indication of a direct relationship between the sanction imposed and the conduct.

In its order, the trial court stated: A[T]he Court has no doubt that Insurance Depot is ultimately responsible, whether directly or indirectly, for [Turner=s] failure to appear at mediation.@ The court further found that joint and several liability will ensure that the sanction assessed will be paid by those at fault, whether Turner, Schiller, or Insurance Depot. One of the purposes of sanctions is to punish violators. Chrysler Corporation v. Blackmon, supra. The trial court=s statements indicate that Insurance Depot is actually responsible for violating the court=s order; however, the sanctions imposed punish Turner and Schiller. We sustain Schiller=s sole issue on appeal.

The trial court=s order granting sanctions is reversed as to Schiller P.L.L.C. Judgment is rendered that Schiller P.L.L.C. is not required to pay $2,400 in sanctions.

W. G. ARNOT, III

CHIEF JUSTICE

May 29, 2003

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

[1]Turner is not a party to this appeal.