David A. Charles and Maria E. Charles v. Dr. David M. Crouch, M.D.--Appeal from 407th Judicial District Court of Bexar County

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MEMORANDUM OPINION
No. 04-02-00372-CV
David A. CHARLES

and

Maria E. Charles,

Appellants

v.
Dr. David CROUCH,
Appellee
From the 407th Judicial District Court of Bexar County, Texas
Trial Court No. 2001-CI-03891
Honorable Frank Montalvo, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Paul W. Green, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: September 17, 2003

AFFIRMED

Appellants David and Maria Charles filed a medical malpractice suit against Dr. David Crouch on March 15, 2001. Crouch filed a motion to dismiss the case, alleging that the Charleses had not timely complied with his discovery requests. Following a hearing, the trial court granted Crouch's motion and dismissed the case with prejudice. (1) The Charleses now appeal. Although the Charleses iterate four issues, all issues encompass the same topic: whether the trial court erred in dismissing their case with prejudice for alleged discovery abuse.

Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion under Texas Rule of Civil Procedure 47.4 for the following reason:

In their first issue, the Charleses assert the trial court erred in imposing death penalty sanctions without first applying the four part test used to determine whether such sanctions are appropriate. In their second issue, the Charleses argue the trial court erred in imposing sanctions against them when there was no evidence that they participated in the alleged offenses. They also contend, in their third issue, that the trial court abused its discretion because they had already provided Crouch with all requested discovery at the time of the dismissal. Finally, the Charleses argue the trial court erred in imposing the death penalty sanction against them when there was no evidence to support the dismissal of their case.

We review the trial court's ruling on sanctions for discovery abuse under an abuse of discretion standard. State Farm Fire & Casulty Co. v. Rodriguez, 88 S.W.3d 313, 326 (Tex. App.--San Antonio 2002, pet. denied). In assessing sanctions, the trial court may consider everything that has occurred during the litigation. Berry-Parks Rental Equip. Co., Inc. v. Sinsheimer, 842 S.W.2d 754, 757 (Tex. App.--Houston [1st Dist.] 1992, no writ). When reviewing a trial court's imposition of sanctions, any conflicts must be viewed in the light most favorable to the trial court's ruling, and all inferences must be made in favor of the court's judgment. Herring v. Welborn, 27 S.W.3d 132, 143 (Tex. App.-- San Antonio 2000, pet. denied).

A trial court may grant "death penalty" sanctions, or sanctions that terminate or inhibit the presentation of the merits of a party's claims, under Texas Rule of Civil Procedure 215.See Tex. R. Civ. P. 215; Daniel v. Kelley Oil Corp., 981 S.W.2d 230, 234 (Tex. App.-- Houston [1st Dist.] 1998, pet. denied). In imposing death penalty sanctions, the trial court must ensure the sanctions are just. TransAmerican Natural Gas v. Powell, 811 S.W.2d 913, 916 (Tex. 1991). There must be a direct relationship between the offensive conduct and the sanction imposed, and the sanction must not be excessive. Id. at 917. Discovery sanctions cannot be used to adjudicate the merits of a party's claims unless the party's hindrance of the discovery process justifies a presumption that its claims lack merit. Id. at 918. If a party refuses to produce material evidence, such as an expert report, despite the imposition of lesser sanctions, the court may presume that an asserted claim lacks merit and dispose of it. See Id.

In the present case, there is a direct relationship between the conduct and the sanction. The Charleses were given more than one opportunity to provide the requested discovery, including responses to interrogatories, requests for production, and requests for disclosure, as well as the requisite expert report under 4590(i), to Crouch and his attorney. Crouch attempted to deliver the discovery requests several times, by certified mail, fax, and courier; all attempts went unanswered. In addition, the trial court denied two previous motions to dismiss, ordering the Charleses and their attorney to comply with the requests and giving them additional time to do so. The appellants failed to respond completely and fully within the allotted time. Prior to dismissing the case, the trial court also assessed attorney's fees against the Charleses for their repeated failure to answer the requests.

Both at the hearing on the final motion to dismiss and in his brief, the Charleses' attorney claimed ignorance of legal procedure as the cause of the delay in compliance, arguing this was his first case, 4590(i) was an "obscure" statute of which he previously had no knowledge, and he had complied with the orders "to the best of (his) ability."

Before dismissing the case at hand, the trial court did first grant certain allowances, permitting additional time in which to respond, and impose lesser sanctions, assessing attorney's fees against the Charleses. In addition, the repeatedly evasive conduct of the Charleses' attorney justifies a presumption that their claims lack merit. The trial court did not abuse its discretion in imposing death penalty sanctions against the Charleses. All four issues are overruled.

Furthermore, the Charleses fail to provide case law for their third and fourth issues, thereby waiving these complaints. Tex. R. App. P. 38.1(h).

The judgment of the trial court is affirmed.

Paul W. Green, Justice

1. Crouch actually filed three separate motions to dismiss the Charleses' case for failure to comply with his requests for discovery. The trial court denied the first two motions, ordering the Charleses to comply within a specified time period. The compliance was not forthcoming, leading to Crouch's third and final motion to dismiss.

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