Reversed and Remanded and Memorandum Opinion filed May 22, 2003.
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In The
Fourteenth Court of Appeals
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NO. 14-02-00843-CV
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RODOLFO MENDEZ, M.D., Appellant
V.
SWEENY COMMUNITY HOSPITAL, Appellee
On Appeal from the 239th District Court
Brazoria County, Texas
Trial Court Cause No. 9617*JG99-1
M E M O R A N D U M O P I N I O N
Rodolfo Mendez, M.D. appeals the trial court=s sanctions for discovery abuse resulting in the striking of his counterclaims against Sweeny Community Hospital. We reverse and remand.
I. Background
Mendez and the hospital entered into a contract under which Mendez would establish his medical practice in Sweeny, Texas for a period of 24 months beginning in September 1996, and, in exchange, the hospital would subsidize Mendez= practice, insuring that he would earn $16,666 in monthly income. On September 24, 1999, the hospital sued Mendez for breach of contract for failure to repay subsidy advances as required in the event of termination of the contract prior to the end of the 24 month period. On November 1, 1999, Mendez filed counterclaims against the hospital for breach of warranty, breach of contract, and defamation.
On May 10, 2000, Mendez= counsel, James Rice, filed a motion to withdraw because Mendez refused to pay Rice. On June 5, 2000, the trial court signed the order permitting Rice to withdraw as Mendez= counsel. Failing to hire other counsel, Mendez proceeded pro se.
On January 18, 2002, the hospital filed a motion to strike Mendez= pleadings, for sanctions, and to compel, complaining of Mendez= failure to respond to discovery, including: (1) failure to appear for deposition until after a certificate of non-appearance had been taken and counsel for the hospital and the court reporter had left the deposition site; (2) failure to properly respond to a request for disclosures sent to him on April 19, 2001; (3) failure to respond to a request for production sent to him on May 4, 2001; and (4) failure to properly respond to a request for admissions sent to him on July 6, 2001.
According to the docket sheet, the trial court held a hearing on the hospital=s motion on February 25, 2002, but did not rule on the motion. Docket sheet entries indicate the trial court advised Mendez to retain an attorney, ordered that Mendez= deposition be set for no later than March 28, 2002, and ordered Mendez to respond to the disclosure and production requests by 5:00 p.m. on March 15, 2002, with any confidential documents to be submitted to the trial court for in camera review.
On April 3, 2002, the hospital filed a second motion to strike pleadings and for sanctions because Mendez had not complied with the trial court=s oral order issued during the February 25, 2002 hearing. The hospital complained Mendez had not produced any documents or properly responded to the request for disclosure, and although he appeared for his deposition, Mendez refused to answer any substantive questions relating to either the case or his claims.
On April 23, 2002, the trial court held a hearing on the hospital=s motion. At the hearing, Mendez informed the trial court that he had not retained a lawyer and wanted to continue to represent himself. Mendez explained he had not produced the documents because they were confidential. The trial court, however, reminded Mendez that if the documents were confidential, he could have submitted them to the court for in camera review, but failed to do so. The trial court granted the hospital=s motion, striking Mendez= counterclaims and assessing sanctions of $300 against him. The trial court, however, further advised Mendez that it would consider setting aside the order striking his counterclaims if he retained an attorney, who then filed answers to the request for disclosures, submitted to the hospital the documents in response to its request for production, and paid the $300 sanction within 30 days.[1]
On June 24, 2002, the trial court signed the order granting the hospital=s motion for sanctions, dismissing Mendez’ counterclaims, and striking Mendez= pleadings to the extent they state any cause of action (without affecting any affirmative defenses). Also, on June 24, 2002, James Rivera appeared as counsel for Mendez, and filed a motion for continuance, which the trial court denied on July 9, 2002. On July 10, 2002, the hospital filed a motion to sever Mendez= causes of action and to enter a final judgment. On July 16, 2002, Mendez filed a motion for reconsideration stating that he had hired an attorney and had complied with the trial court=s order to respond to all discovery requests. On July 22, 2002, the trial court severed Mendez’ counterclaims and entered a final judgment from which Mendez brings this appeal.
II. Standard for Imposing Sanctions
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 Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex. 1992) (orig. proceeding). Any sanction imposed under Rule 215.2(b) must be “just.” Tex. R. Civ. P. 215.2(b); Spohn Hosp. v. Mayer, 46 Tex. Sup. Ct. J. 604, 2003 WL 1923002, at *3 (Tex. Apr. 24, 2003). For the imposition of sanctions to be “just,” a direct relationship must first exist between the offensive conduct and the sanction imposed. TransAmerican Natural Gas v. Powell, 811 S.W.2d 913, 917 (Tex. 1991). In other words, a just sanction must be directed against the abuse and toward remedying the prejudice caused to the innocent party. Id. Second, a just sanction must not be excessive; it should be no more severe than necessary to satisfy its legitimate purposes. Id. To achieve this end, the trial court must first consider the availability of less stringent sanctions to determine whether lesser sanctions will fully promote compliance, deterrence, and discourage further abuse. Chrysler Corp., 841 S.W.2d at 849.
A death penalty sanction is “of particular concern” because the trial court renders judgment without addressing the merits of the case. Hamill v. Level, 917 S.W.2d 15, 16 (Tex. 1996) (orig. proceeding). Because of constitutional limitations on the power of courts to dismiss an action without affording a party the opportunity a hearing on his cause of action, discovery sanctions cannot be used to deny a party a decision on the merits unless the trial court finds the sanctioned party=s conduct justifies the presumption that his claims or defenses lack merit. Hamill, 917 S.W.2d at 16; TransAmerican Natural Gas, 811 S.W.3d at 918. Thus, if a party refuses to produce material evidence, even with the imposition of the lesser sanction, the trial court “may presume that an asserted claim or defense lacks merit and dispose of it.” TransAmerican Natural Gas, 811 S.W.2d at 918. The record must reflect that the trial court considered the availability of lesser sanctions. GTE Communications Sys. Corp. v. Tanner, 856 S.W.2d 725, 729 (Tex. 1993) (orig. proceeding). The Supreme Court has emphasized that “[c]ase determinative sanctions may be imposed in the first instance only in exceptional cases when they are clearly justified and it is fully apparent that no lesser sanctions would promote compliance with the rules.” Spohn Hosp., 2003 WL 1923002, at *4 (quoting GTE Communication Sys. Corp., 859 S.W.2d at 729).
The imposition of sanctions for discovery abuse is left to the sound discretion of the trial court. TransAmerican Natural Gas, 811 S.W.2d at 917. A trial court abuses its discretion when its ruling is arbitrary, unreasonable, or without reference to any guiding rules or legal principles. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000).
Mendez complains the trial court failed to utilize a lesser sanction before striking his pleadings for discovery abuse. We agree. First, the trial court=s order to compel issued during the February 25, 2002 hearing was not a lesser sanction under rule 215. Williams v. Akzo Nobel Chems., Inc., 999 S.W.2d 836, 844 (Tex. App.CTyler 1999, no pet.); Westfall Family Farms, Inc. v. King Ranch, Inc., 852 S.W.2d 587, 592 (Tex. App.CDallas 1993, writ denied). Second, because the $300 monetary sanction was imposed simultaneously with the striking of Mendez= counterclaims, the $300 sanction cannot constitute a prior lesser sanction. Third, providing Mendez with an opportunity to remedy the situation by retaining counsel and completely responding to the discovery does not meet the requirement of a lesser sanction.[2] The trial court was required to impose a lesser sanction, such as the $300 assessment. There has been no showing that the complained of conduct rises to the level of an exceptional case in which a death penalty sanction imposed in the first instance is justified and it is evident a lesser sanction would not promote compliance. See Spohn Hosp., 2003 WL 1923002, at *4.
We conclude the trial court abused its discretion in striking Mendez’ counterclaims prior to imposing a lesser sanction. Accordingly, we reverse the judgment and remand the case to the trial court.
/s/ J. Harvey Hudson
Justice
Judgment rendered and Memorandum Opinion/Opinion filed May 22, 2003.
Panel consists of Justices Hudson, Edelman, and Draughn.*
[1] The trial court stated with regard to its conditions for setting aside its order:
Here is what we=re going to do. I may consider setting this order aside, provided you get an attorney and that attorney comes up and, within 30 days, has filed all those request[s] for disclosures and fully answered them and has submitted to counsel all of the responses to the production requests, and I mean thoroughly. No in camera stuff. That=s the only way. Plus the fact that you are going to have to pay $300 to counsel for the defendant within 30 days. If that=s not done, the monkey is on your back and your lawyer=s back to come forward. It=s not on mine or theirs. So the sanctions are granted. The pleadings on slander are struck. You have got one shot to get them reinstated if there is a motion filed and set on the next docket by an attorney, that I hear, and I think there=s good cause, and he produces at that time responses to the production requests and the requests for disclosure and pays the $300.
[2] Although not raised on appeal, we observe that a litigant has the right to represent himself. Tex. R. Civ. P. 7; Ex parte Shaffer, 649 S.W.2d 300, 302 (Tex. 1983). Ordering a party to be represented by an attorney abridges that right. Shaffer, 649 S.W.2d at 302.
* Senior Justice Joe L. Draughn sitting by assignment.