Transbulk Carriers, Inc. v. Raul Guerra--Appeal from Probate Court of Galveston County

IN THE

TENTH COURT OF APPEALS

No. 10-92-079-CV

TRANSBULK CARRIERS, INC.,

Appellant

v.

RAUL GUERRA,

Appellee

From the Probate & County Court

Galveston County, Texas

Trial Court # 39,799

O P I N I O N

Transbulk Carriers appeals the imposition of a "death penalty" sanction the striking of Transbulk's pleadings and the entry of a $46,600 default judgment against it for alleged discovery abuse. Using the guidelines established by the Supreme Court in Transamerican Natural Gas Corporation v. Powell, we hold that the sanction was not "appropriate." See Transamerican Natural Gas Corporation v. Powell, 811 S.W.2d 913, 916 n.4 (Tex. 1991).

Raul Guerra was injured while working aboard a ship owned by Transbulk Carriers, Inc. On March 8, 1991, Guerra served Transbulk with interrogatories and requests for production. Receiving no response ninety days after service of the discovery, Guerra moved for discovery sanctions on June 10, 1991. Two days later, on June 12, 1991, without a hearing, the court granted the motion and struck Transbulk's pleadings. After the court entered a default judgment against Transbulk, a jury found damages totalling $46,600. Transbulk then filed a motion for new trial, which was overruled.

Transbulk appeals on two points. First, Transbulk contends that the trial court abused its discretion in striking its pleadings and entering a default judgment for discovery abuse. Second, the court erred in the imposition of prejudgment interest on a jury verdict based in part on the Jones Act.

RULE 215 SANCTIONS

A sanction imposed for discovery abuse must always be "appropriate" under the circumstances of the specific case. See Tex. R. Civ. P. 215; Transamerican Natural Gas Corporation, 811 S.W.2d 913, 916 n.4 (Tex. 1991). In Transamerican, the Supreme Court said "appropriate" and "just" are equivalent standards. Transamerican, 811 S.W.2d at 916 n.4. A two-step analysis is used to determine if a sanction is "appropriate." Chrysler Corp. v. Honorable Robert Blackmon, 36 Tex. Sup. Ct. J. 76, 80 (October 17, 1992). First, a direct relationship between the offensive conduct and the sanction imposed must exist; and second, the sanction imposed must not be excessive. Id. Thus, "the punishment must meet the crime." Id. A discovery-abuse sanction, therefore, should be no more severe than necessary to satisfy its legitimate purpose. Id. In other words, a court must first consider relatively less stringent sanctions to determine whether lesser sanctions will fully promote compliance, deterrence, and discourage further abuse. Id. Ultimate penalties, such as exclusion of essential evidence, striking pleadings, dismissal, and default, should be "the exception rather than the rule." Lassiter v. Shavor, No. 05-91-00452-CV (Tex. App. Dallas, Jan. 21, 1992, n.w.h.).

In Chrysler, the Supreme Court determined that the trial court's actions failed to meet the sanctions standards in four ways. Chrysler, 36 Tex. Sup. Ct. J. at 81. The trial court in this case has failed in the same four ways. First, there is no direct relationship between the offensive conduct and the sanction imposed. See id. The sanction must be directed against the abuse and toward remedying the prejudice caused an innocent party. Id. We agree that failure to comply with discovery can prejudice a party's efforts to assert or defend a claim. But here, there has been no showing that Guerra is unable to prepare for trial without compliance by Transbulk with the discovery requests. However, Guerra would be prejudiced by the expenditure of attorneys' fees and expenses in pursuing motions to compel discovery and sanctions. Reimbursement of those expenses would appear to be better calculated to remedy the abuse than death-penalty sanctions.

Second, striking Transbulk's pleadings and rendering a default judgment on liability is more severe than necessary to satisfy the legitimate purposes of sanctions for discovery abuse. The legitimate purposes of discovery sanctions are: (1) to secure compliance with discovery rules; (2) to deter other litigants from similar misconduct; and (3) to punish violators. Id. at 80. These goals could have been fulfilled in a less stringent manner.

Third, no lesser sanction was first imposed. Courts must consider less harsh sanctions first and determine whether the lesser sanctions will fully promote compliance, deterrence, and discourage further abuse. Id. at 81.

Fourth, unless the court finds that the sanctioned party's conduct "justifies a presumption that its claims or defenses lack merit and that it would be unjust to permit the party to present the substance of that position [which is the subject of the withheld discovery] before the court" death penalty sanctions should not be used to deny a trial on the merits Id. This record does not justify such a presumption. Nor do we find evidence of flagrant bad faith or counsel's callous disregard for the obligations of discovery.

Under this record, we conclude that the "death penalty" did not meet the Chrysler or Transamerican guidelines. See id.; Transamerican, 811 S.W.2d at 916. This resulted in an abuse of discretion requiring reversal of the judgments. See Walker et al., v. The Honorable Anne Packer, 35 Tex. Sup. Ct. J. 468, 472 (February 22, 1992). We sustain point one.

We do not reach the second point of error. The judgment is reversed, and the cause is remanded for further proceedings in accordance with this opinion.

PER CURIAM

Before Justice Cummings,

Justice Vance, and

(Chief Justice Thomas not participating)

Reversed and remanded

Opinion delivered and filed December 9, 1992

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