In Re Michele Le--Appeal from 125th District Court of Harris County
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Emergency Motion for Stay Denied, Motion to Consolidate Granted, Petitions for
Writ of Mandamus Denied, and Majority and Dissenting Opinions filed March 3,
2011.
In The
Fourteenth Court of Appeals
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NO. 14-11-00132-CV
NO. 14-11-00156-CV
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IN RE MICHELE LE, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
125th District Court
Harris County, Texas
Trial Court Cause No. 2008-41349
DISSENTING OPINION
On this record, I agree with the trial court that relator committed discovery abuse
and that sanctions are warranted— but the trial court’s death penalty sanction is not just,
and therefore, I respectfully dissent.
As to the monetary portion of the award, I would stay the case to allow relator to
present her argument to the trial court that the imposition of these large monetary
sanctions (payable before judgment with a $500 per day fine for any day late in payment)
threatens her ability to continue the litigation. In Braden, the Supreme Court held that
the imposition of $10,000 in sanctions threatened the ability of the relator to continue the
litigation. Braden v. Downey, 811 S.W.2d 922, 929 (Tex. 1991). This sanction, against
an individual, is almost three times that amount, increasing daily and includes a future
payment of an additional $8500.
I would grant the mandamus on the death penalty sanctions, because plaintiff did
not show in the motion for sanctions or at the oral hearing that relator’s discovery abuse
justified the presumption that the relator’s claims or defenses lack merit or that it would
be unjust to allow relator to present her defenses to the jury. See Chrysler Corp. v.
Blackmon, 841 S.W.2d 844, 850 (Tex. 1992).
Plaintiff presented no evidence that any missing documents were crucial to his
case or that he could not present his case to the jury because of the missing documents.
In his supplement to the motion for sanctions, he identified only three documents that
relator failed to produce. In an affidavit attached to the original motion, plaintiff’s
counsel merely states that the discovery abuse prejudiced the plaintiff “by causing a delay
in discovery and by failing to provide discoverable documents and information.” The
conclusory affidavit does not identify what discovery the plaintiff lacks or how that
missing discovery impacts the case. This one conclusory sentence cannot justify death
penalty sanctions.
Relator has been deposed once and presumably will appear again for her
deposition. Relator has produced boxes of documents. Relator has paid the outstanding
$500 fine.
Relator has provided the missing bank account numbers, answered all
outstanding document requests and has responded to Plaintiff’s contention for the nonproduction of three documents.
Sanctions must be just. TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d
913, 917-18 (Tex. 1991).
A just sanction, if more than monetary sanctions are
appropriate, would only prevent relator from making any claim or defense that relates to
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any undisclosed documents—-it would not strike her pleadings and prevent her from
offering any evidence or giving any testimony. The punishment should fit the crime.
Smith v. Nguyen, 855 S.W.2d 263, 266 (Tex. App.—Houston [14th Dist.] 1983, writ
denied).
I would grant the mandamus in part, strike the death penalty portion of the trial
court’s order, and stay the trial to allow relator to present the argument to the trial court
that immediate payment of the sanctions would threaten her ability to continue with the
litigation.
/s/
Tracy Christopher
Justice
Panel consists of Chief Justice Hedges and Justices Frost and Christopher. (Frost J.,
Majority).
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