Gunn, Candace, Individually, and as Next Friend of Gary Gunn v. Fuqua, Kenneth W., Individually Rodney Jay Gappelberg, Individually And Fuqua & Gappelberg, LLP F/K/A Fuqua Hudnall & Gappelberg, LLP

Affirm in part; Reverse and Remand in part; Opinion Filed April ii, 2013.

In The
Qnurt uf i\pj.ira1i
fiftb Jiitrirt nf Lrxa at Jat1a
No. 05-1 l-00162-CV

CANI)ACE GUNN, IN1)IV1I)UALLY,
AND AS NEXT FRIEND OF GARY GUNN, SR., Appellant

KENNETH W. FUQUA, RODNEY JAY GAPPLEBERG,
FUQUA & GAPPLEBERG, 1JP F/K/A FUQUA tIUDNALL & GAPPLEBERG, LLP,
TODD E. TRACY, AND TRACY & CARBOY, Appellees

On Appeal from the 191st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-i 1-0081 1-J and DC-l1-00974-J’

OPINION
Before Justices FitzGerald, Fillmore, and Richtei
2
Opinion By Justice Fillmore

In this appeal arising from a legal malpractice lawsuit, appellant Candace Gunn, individually,

and as next friend of Gary Gunn. Sr.. asserts the trial court erred by (1) granting a “death penalty”

discovery sanction against appellant for failure to produce expert reports pursuant to a scheduling

order and denying appellant’s motion to reconsider, (2) granting the “catch—all” motions for summary

judgment filed by appellees Kenneth W. Fuqua, Rodney Jay Gappleberg, and Fuqua & Gappleberg,

These cause numbers were se ui-ed from cause number DC-07-03 61

lit Uonoriblc M trim Riclit i R Ic tu cc ( owl oF \ppc its ifth Di iii tot I \ is it Dill siltin b\ assilirnent
LLP f/Wa Fuqua Hudnall & Gappleberg. LLP (collectively the “Fuqua appelleeC) and by appcllecs

Todd E. Tracy and Tracy & Carboy (collectively the “Tracy appellees”), and (3) denying appellant’s

motion for leave to file her fourth amended petition and by striking that pleading. We affirm the trial

court’s order denying appellant’s motion for leave to tile her fourth amended petition. We reverse

the trial court’s judgments and remand these causes to the trial court for further proceedings.

Background

Litigation Underlying the Legal Malpractice Lawsuit

On October 23, 1999, Gary Gunn, Sr. was injured when the rear wheel came off the

motorcycle he was riding, in December 1999, Gary Gunn, Sr. and appellant Candace Gunn retained

the Fuqua appellees to represent them and their children in bringing claims arising from the

motorcycle accident, and signed an attorney employment contract with the Fuqua appellees on

December 14, 1999. In 2000, a lawsuit was filed claiming product liability and negligent service of

the motorcycle: Candace Gunn, Individually and as Nest Friendfor Gaiy Don Gunn, Sr., and as

Next Friendfor Derek Daniel Gunn, a Minor, Gai” Don Gunn, Jr., Kimberly Kaye Rejfein. and

Christina Dawn Jones i BMW ofNorth America, Inc., Baverische Motoren Werke AG, and Two

Wheel World-Garland, inc., Cause No. 00-03168-C, 68th Judicial District Court, Dallas County,

3 Plaintiffs were represented in cause number 00-03168-C by the Fuqua appellees.
Texas.

In October2001, Two Wheel World settled plaintiffs’ claims in cause number 00-03 168-C

concerning negligent service of the motorcycle. A disagreement subsequently arose between the

Fuqua appellees and Ed P. Cox ofE.P.C. Engineering Resources, Inc., the expert hired by the Fuqua

appellees in cause number 00-03168-C. Ma result ofthe disagreement, the Fuqua appellees assisted

Orny Don Guna, Jr., Kimberly Kaye Reifrin, and Christina Dawn Jones were adults when cause number 00.03168-C was filed.

—,—
appellant in locating another attorney to represent her. The Tracy appellees agreed to represent

appellant.

On December22, 2003, appellant as next friend ofGary Gunn, Sr., represented by the Tracy

appellees, filed her original complaint in federal court alleging claims ofproduct liability and seeking

damages allegedly sustained by Gary Gunn, Sr. as a result ofthe motorcycle accident: Candace Gunn

as Nat Frieiid of Ga,i’ Don Gui,,,, Sr.. An incapacitated Adult v. Bayerische Motoren Werk

Aktiengesellschcqfi andBMWofNorth America, LLC (/
Th/a BMWofNorth America, hia,), Cause No.
4

2-03-CV-460, United States District Court for the Eastern District ofTexas. Neither Candace Gunn,

individually, nor the children ofCandace and Gary Gunn, Sr. (Derek Daniel Gunn, Gary Don Gunn,

Jr., Kimberly Kaye Reifein, and Cbristina Dawn Jones) were plaintiffs in the federal lawsuit filed

against BMW.
4

The Fuqua appellees filed, on behalf of appellant, individually and as next friend of Gary

Gunn, Sr., and plaintiffs Derek Daniel Gunn, Gary Don Gunn, Jr., Kimberly Kaye Reifein, and

Christina Dawn Jones, a motion for nonsuit of the remaining defendants in the lawsuit pending in

the 68thjudicial district court, cause number 00-03168-C. The trial court signed an order ofnon-suit

in cause number 00-03168-C on April 30, 2004.

The record contains a letter agreement dated August 30, 2004 from BMW’s counsel, and

signed by appellee Todd Tracy, setting out the terms for settlement with BMW ofGary Gunn, Sr.’s

claims brought in the federal court lawsuit through appellant as his next friend. Pursuant to

stipulation of the parties, the federal court lawsuit, cause number 2-03-CV-460, was dismissed

without prejudice by order signed October 13, 2004. Appellant, represented by the Tracy appellees,

Derek Daniel 0mm had reached the age of majodty at the time the federal lawsuit was filed.

—3—
tiled a lawsuit against BMW in state district court to prove-up the settlement between BMW and

appellant, as next friend of Gary Gunn, Sr.: Candace Gurni as Next Friend ofGary Don Gunn, Sit.

an incapacitated adult i’. 8PvfWofNorth America, LLC ([fir/a BMW ofNorth America, Inc.), Cause

No. 04-10793-C, 68th Judicial District Court, Dallas County, Texas. On December 12, 2004, the

trial court conducted a prove-up hearing on the settlement in cause number 04-10793-C, and the trial

court approved the settlement amount paid by BMW and the other settlement tenns.

In 2005, appellant and Gary Gunn, Sr. were sued on a debt by Ann Glenn: Ami Glenn v. Gary

Gun,, and Candace Gunn, Cause No. 05-05804-J, 191st Judicial District Court, Dallas County,

Texas. The Tracy appellees filed the answer of appellant and Gary Gunn, Sr. in that lawsuit.

According to an affidavit ofappellee Todd Tracy, during the pendency ofcause number 05-05804-J,

he learned appellant had retained counsel to file a legal malpractice lawsuit against him, thus creating

a conflict of interest between the Tracy appellees and appellant. By letter dated July 31, 2006, the

Tracy appellees wrote to appellant and Gary Gunn, Sr.:

Since our law firm had represented you as Plaintiffs in the past we decided, as a
courtesy to you, to file an answer [in cause number 05-05804-J] on your behalf.
However, as you well know, our law firm specializes in vehicle safety related issues
for Plaintiffs. We are not accustomed to dealing with defenses such as yours. As you
might expect, because we are not experts in this type oflawsuit ofwhich we filed an
answer on your behalf it is the firm’s belief that the best option for both of us is to
withdraw as your attorneys in this matter.

The Tracy appellees filed a motion to withdraw as counsel ofrecord for appellant and Gary Gunn,

Sr., as defendants in cause number 05-05804-J, stating a “conflict prevents counsel from being able

to zealously represent the Defendants.” The trial court signed an order granting the withdrawal of

the Tracyappellees as counsel on October 16,2006. The record does not indicate appellant and Gary

Gunn, Sr. retained new counsel to represent them in cause number 05-05804-J. They did not appear

for trial on December Il, 2006, and a final judgment was signed awarding plaintiff Glenn

-4-
 $ I 1,339.76, plus post—judgment interest and costs.

The Legal Malpractice Lawsuit

On April 6, 2007. appellant flied a legal malpractice lawsuit against the Tracy appellees:

Candaee Gun,,, individually and as Next Friend of (iaiy Gunn v. E. Iodd liner, indiridualli’, Tracy

& Carbov, Attorneys at Law, Ed P. cox, Individually, and E.P. C Engineering Resources, Inc.,

Cause No. 07-03 161-i, 191st Judicial District Court. l)allas County, Texas. On July 28, 2008, the

Tracy appeliees filed a motion to designate the Fuqua appellees as responsible third parties. On

September 26, 2008, appellant filed her third amended petition in cause number 07-03 161-i, naming

the Fuqua appellees as defendants. On October 30, 2008. the Fuqua appellees filed an answer to

appellant’s third amended petition.

Appellant alleged the Tracy and Fuqua appellees were negligent in their legal representation

of appellant, breached their fiduciary duty to appellant, and committed fraud against appellant by

making various representations and failing to disclose information. In addition to actual damages,

appellant sought exemplary damages based on alleged fraudulent and malicious representations by

appellees. During the pendency of the legal malpractice action, interlocutory summary judgments

were granted by the trial court in favor of the Tracy appellees. With the exception of appellant’s

allegation the Tracy appellees concealed from appellant “the negligent acts complained of and the

adverse impact of these negligent acts on the value of [appellant’s] claims by settlement or verdict,”

the trial court granted the Tracy appellees’ motion for traditional summary judgment on appellant’s

Ed I’. Cox and E. PC. Enaineering Resources. Inc. were \‘oluntari l non-suited by appellant on January 20. 20 1. and they are not parties
to this ppL-tI Fhc chtldrLn ot ippJl nt nd ( ir (iunn Sr w dc no pirtics to thc lc. ii m0 rlctics ln s it nd ii not pirtIc ii this pp ii
breach of fiduciary duty allegations as impermissiblv fractured legal malpractice claims. The trial

court also granted the Tracy appellees summary judgment on appellants breach of contract clam.

Further, the trial court granted the Tracy appellees’ second motion for traditional summary judgment

on appellant’s claims of fraud as impermissibly fractured legal malpractice claims and appellant’s

claim for exemplary damages based upon alleged fraud) The trial court granted summary judgment

in lavor of the Tracy appellees as to appellant’s allegations concerning the Tracy appellees’

representation ol appellant in the debt collection lawsuit brought against her and Gary Gunn. Sr. in

Ann Glenn i. Gary Gunn and C’andace Guniz, Cause No. 05—05804—J.°

On August 12, 2010, the Tracy appellees filed a motion to exclude appellant’s expert

witnesses under rule of civil procedure 193.6 and for sanctions under rules 2 15.2(b) and 215.3 for

appellant’s failure to comply with a court order and for abusing the discovery process. On August

19, 2010, the Fuqua appellees filed their motion to exclude appellant’s expert witnesses, for

sanctions under rules 2 15.2(b) and 215.3, and for joinder in the Tracy appellees’ August 12, 2010

6
The tnal eourCs June 15, 2010 order granted summary judgment on the following alleged breaches of fiduciary duty by the Tracy
appellees:

Dishonestly representing to [appellanti their high degree of skill. experience, and expertise required to handle [appeliant’si
claims;
Representing that there was a special relationship with the federal court that would benefit the clients;
Constructing the settlement trust to serve the attorneys’ interests. ohile disregarding the best interest of the client:
Representing the client in a manner solely designed to further the self—interests of the attorney, rather than the client;
Failing to disclose all contlicts and errors clesenhed herein (but phrased in the petition as a possible [Deceptive Trade Practices
Aol violation: iitl
,-\handoning reprcienl:itinn of appellant I in [Jon Glenn r. G,nr Gitnn iiiid Conduce Goon. Cause No. 05—05804—J].

Appellant’s counsel advised the trial court appellant did not assert a breach of contract claim against the Tracy appellees. i-Iowever.
appellant spicadings alleueappellant”hring[sj thiscauseofaction to recoverthosedarnagesoccasioned by the negligence, breach offiduciaryduties.
and breach of contract committed by the Defendants during their representation of appellant].

‘fhe trial court denied summary judgment to the extent appellant’s claims were based upon alleged malicious conduct.

The Fuqua appellees also filed motions Prsummaryjudgment. The trial court deniedthe Fuqua appellees’ motion for suinmaiy judgment
based on the statute of limitations, The trial court did not rule on the Fuqua appellees’ traditional motion for summary judgment asserting a lack of
causation or on their nwevidenec motion for summary judgment asserting there was no evidence the Fuqua appellees’ conduct caused appellant
injuries, that appellant sutii,’red damages as a result of actionable conduct by the Fuqua appellees, or of an affirmative representation or Pulure to
disclose by the Fuqua appellees.

—6-
motion.

On September 14, 2010, the trial court signed an order granting the Tracy appellees’ motion

to exclude appellant’s expert witnesses and motion br sanctions and ordered appellant’s claims

against the Tracy appellees dismissed with prejudice. On September 28, 2010, the trial court signed

an order granting the Fuqua appellees’ motion to exclude appellant’s expert witnesses and motion

for sanctions and ordered appellant take nothing by way of her claims against the Fuqua appellees.

The Tracy and Fuqua appellees filed “Catch-All No-Evidence Motions for Summary

Judgment,” moving for summary judgment to dispose of all of appellant’s claims in the “unlikely”

event any of appellant’s claims survived the trial court’s sanction orders or any ofappellant’s claims

“are revived.” On January 20, 2011, the trial court signed orders granting the Fuqua appellees’

catch-all motion for summaiy judgment and severing appellant’s claims against the Fuqua appellees

into a separate cause of action (DC-1i-00$l 1-i). On January 28, 2011, the trial court signed a final

judgment in favor of the Fuqua appellees. On January 25, 2011, the trial court severed appellant’s

claims against the Tracy appellees into a separate cause of action (DC-I 1-00974-i), and on February

16, 2011, the trial court signed a final judgment in favor of the Tracy appellees. On August 22,

2011, the trial court signed an order granting the Tracy appellees’ catch-all no-evidence motion for

summary judgment.

Appellant tiled this appeal.’° Appellant asserts the trial court erred by (I ) granting a “death

penalty” discovery sanction against her for failure to produce expert reports pursuant to a scheduling

order and denying appellant’s motion to reconsider, (2) granting the “catch-all” motions for summary

judgment filed by the Fuqua and the Tracy appellees, and (3) denying appellant’s motion for leave

I0
Appellant bled appeal number 05- I 1-001 62-C\’ from cause number D(f- 1 1-000 I I -J and appeal number 05- 1 I -0005-CV from cause
number DC—I I —0007-I-I. Ihose appeals were consolidated in appeal number 05—lI -0(11 67—CV
to tile her lburth amended petition and by striking that pleading.

Sa rictio fl S

In her first issue, appellant asserts the trial court erred by granting a “death penalty discovery

sanction against [appellant] for failure to produce expert reports pursuant to a routine scheduling

order, and in likewise denying [appellant’s] motion to reconsider.”

Standard of Review

We review a trial court’s imposition of sanctions under rule of civil procedure 215 for an

abuse of discretion. Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex, 2006) (per

curiam); see also Koslow’s v. Mackie, 796 S.W.2d 700, 704 (Tex. 1990) (imposing an available

sanction is left to trial court’s sound discretion). A trial court abuses its discretion if it acts without

reference to any guiding rules and principles such that its ruling was arbitrary or unreasonable. Am.

Flood Research, Inc., 192 S.W.3d at 583; see also Mackie, 796 S.W.2d at 704 (test for whether trial

court abused its discretion in striking a party’s pleadings is whether trial court acted without

reference to any guiding rules and principles such that trial court’s decision was arbitrary and

unreasonable). We must conduct an independent review of the entire record in determining whether

the trial court abused its discretion by imposing sanctions in this case. See Am. Flood Research, Inc.,

192 S.W.3d at 583; 5 Star Diamond, LLC v. Sing/i, 369 S.W.3d 572, 577 (Tex. App—Dallas 2012,

no pet.).

A discovery sanction must be just; a direct relationship must exist between the improper

conduct and the sanction imposed, and the sanction “should be no more severe than necessary to

satisfy its legitimate purposes. TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917

(Tex. 1991) (orig. proceeding). Discovery sanctions serve to secure compliance with the discovery

rules, deter other litigants from violating the discovery rules, and punish those who violate the rules.
.5 Star Diamond, LLC, 369 SW,3d at 577; Jv. Integrated Coiii’e’;or Sis., ha. v. innovative

Conveyor Concepts, Inc.. 300 S.W.3d 348, 384 (Tex. App—Dallas 2009. pet. denied) (op. on reh’g).

Rule 215.2 allows a trial court to sanction a party for failure to comply with a discovery order

or request. See TEx, R. Civ. P. 215.2; Cire v. Cummings, 134 S.W.3d 835, 839 (Tex. 2004). Among

the sanctions available tinder rule 2 15.2 are orders “striking out pleadings or parts thereot”

“dismissing with or without prejudice the actions or proceedings or any part thereof,” and “rendering

a judgment by default against the disobedient party.” TEX. R. Civ. P. 21 5.2(h)(5). These sanctions,

that adjudicate a claim and preclude presentation of the merits of the case, are often referred to as

“death penalty” sanctions. See general/v (‘ire. 134 S.W.3d at 840—41; see also TransAnierican, 811

S.W.2d at 91 8 (“When a trial court strikes a party’s pleadings and dismisses its action or renders a

default judgment against it for abuse of the discovery process, the court adjudicates the party’s

claims without regard to their merits but based instead upon the parties conduct of discovery.”);

Perez v. Mur,fj, 972 S.W.2d 78, 81 (Tex. App.—Texarkana 1998, pet. denied) (any sanctions which

are “case determinative” constitute “death penalty” sanctions).

“Death penalty” sanctions are harsh and may be imposed as an initial sanction only in the

most egregious and exceptional cases “when they are clearly justified and it is fully apparent that no

lesser sanctions would promote compliance with the rules.” GTE Conimc ‘us Svs. Coip. v. Tanner,

856 S.W.2d 725. 729 (Tex. 1993). Generally, courts must impose—not just consider—lesser

sanctions before resorting to the “death penalty.” See Cire, 134 S.W.3d at 842. When reviewing

“death penalty” sanctions, we are required to review the trial court’s actions in light of the standards

set out in Trans/Inierican. Murjf 972 S.W.2d at 82.

Procedural ffistoi’y

Appellant flied the legal malpractice lawsuit. cause number 07-03 161-i, in April 2007. In
 June 2007. the trial court signed a scheduling order. That scheduling order contained no deadline

tbr parties’ designations of expert witnesses or production of experts’ reports. In January 2008,

appellant and the Tracy appellees tiled an agreed motion tor continuance of an April 2(08 trial

setting.

On January 24, 2008, the trial court signed an agreed scheduling order (the second scheduling

order). The second scheduling order provided that appellant “shall designate experts and must

provide reports” by March 7, 2008, unless appellee Todd Tracy could not be deposed by March 1,

2008, in which case appellant could seek additional time from the trial court to designate experts and

provide reports.

On March 31, 2008, appellant filed a motion to extend her deadline for designation of expert

witnesses and production of expert reports. In her motion, appellant referenced the provision of the

second scheduling order whereby she could seek additional time to designate expert witnesses and

produce expert reports if Todd Tracy had not been deposed by March I, 2008. However, Todd Tracy

was deposed on February 23, 2008. In her motion, appellant sought at least an additional thirty days

to designate expert witnesses “and provide reports,” because transcripts of the depositions of Todd

Tracy and Ed Cox had only recently been received and were necessary to enable appellant’s expert

“to prepare an adequate report.”

The Tracy appellees filed their opposition to appellant’s motion to extend the time to

designate her expert witnesses and produce expert reports and a motion for sanctions. The Tracy

appellees asserted appellant knowingly missed the trial court’s deadline to designate her expert

[he second schedu hug order stated that Piiiure to Pie inftirntation set out in Rule I 66(d)-fm). an estimate of the length of trial, designation
ofdepositiott testmoiis to he offered in direct examination, and sue motions in limi ne seven days before an Octobet 1 4. ftOh trial setting
‘‘may result
in dismissal hr want 1 f prosecution or other appropriate sanction,’ \Vliiie ru Ic 1 (6( P refers to exchange of a it ot expert witnesses ss ho \vi
II be
called to test Iv at trial. ,tat nit their address and telephone number, and the subject of the testimony and opi lions titat II be proffered by each expert
witness, the second scliedulitig order does not indicate failure to designate experts and provide reports
by March 7, 20(18 may result in dismissal of
the case or an’ other saitetiOii.
witnesses and produce expert reports, and rule of civil procedure I ‘)3.6(a) requires exclusion otthe

testimony of expert witnesses who are not timely identified. In their motion liar sanctions, the Tracy

appellees also requested under rule of civil procedure 21 5.2(b) a monetary sanction and an order

prohibiting appellant from introducing expert testimony into evidence, awarding the Tracy appellees’

reasonable expenses, and taxing costs against appellant.

Although there is no written order signed by the associate judge in the record, on April 18.

2008, the Tracy appellees filed an appeal to the trial court of the associatejudge’s April 15, 2008 oral

pronouncement of a thirty day extension for appellant’s expert witness designation. On April 18,

2008. appellant filed her response to the Tracy appellees’ motion for partial summary judgment on

her breach of fiduciary duty and breach of contract claims and to the Tracy appellees’ no-evidence

motion for summary judgment. In that response, appellant moved the trial court to continue hearings

on those motions for summar judgment until appellant’s “expert has been designated and a written

report filed with the court and opposing counsel.”

At a May 9, 2008 hearing before the trial court, appellant’s counsel stated he had a May 1 5,

2008 deadline to designate expert witnesses and produce expert reports, and the trial court stated it

was not extending the May 15, 2008 deadline because expert witness designations should have

“mostly occurred already by this point.” At the hearing, appellant’s counsel indicated he was

meeting immediately after the hearing with appellant’s expert witness to review his report.

On the May 15, 2008 deadline for appellant’s expert witness designation, appellant filed her

second motion fbr extension of time to designate expert witnesses. In that second motion for

extension, appellant reiterated her attorney’s representation at the May 9, 2008 hearing that he “had

obtained the services of an expert witness and was scheduled to meet with the witness immediately

following the hearing to finalize a written report.” However, appellant’s motion also informed the

—11-
 court that the expert subsequently had dechned to serve as a witness. On June 2, 2008, the trial court

sined an order rnemorializin the trial court’s announcement at the May P hearing that appel hint

“shall produce and serve [her] expert designations and reports on or beibre May I 5. 2008.”

On July 28, 2008, the Tracy appellecs filed their motion to designate the Fuqua appellees as

responsible third parties. On September 26, 2008, appellant filed her third amended petition in

which she joined the Fuqua appellees as named defendants.

On October 8, 2008. the trial court signed a number oI’orders in the legal malpractice lawsuit.

The trial court signed an order denying the Tracy appelIees appeal of the associatejudge’s extension

of appellant’s deadline for designating expert witnesses and producing expert reports. The order

memorialized that the existing scheduling order remained in place and required appellant to

designate her experts and serve expert reports by May I 5, 2008. The trial court signed an order on

the Tracy appellees’ motion to compel production of a document shredder and fax machine and

motion for sanctions. The trial court’s order required appellant to produce the document shredder

and fax machine for inspection and testing, but did not grant the requested sanctions. The trial court

signed an order on the Tracy appellees’ “composite” motion to compel discovery responses and

motion for sanctions, granting in part the motion to compel but taking no action on the request for

sanctions. The trial court signed an order on the Tracy appellees’ motion to compel production of

telephone and dumpster records and motion for sanctions. The trial court found appellant had failed

to comply with the trial court’s March 7, 2008 order to produce telephone and dumpster records and

ordered production ofthe telephone records. Because appellant’s counsel advised he had mistakenly

failed to produce records in his possession and that he would do so promptly. the trial court made

no further rulings regarding production of the dumpster records. The trial court ordered appellant’s

counsel. Jeff Forrest Smith, sanctioned for violation of rule of civil procedure 2 15.2(b). Smith was
ordered to pay S 1000 into the registry oi the trial court, representing the Tracy appellces’ reasonable

expense incurred in pursuing the motion, including their reasonable attorneys fi2es. Sec Tix. R. Civ.

P. 21 5.2(b)(8).’

The trial court signed an additional October 8, 2008 order substituting Jules P. Slim for Jeff

Forrest Smith as attorney of record for appellant and discharging Smith as appellant’s attorney of

record. in an October 15, 2008 letter brief to the trial court, appellant’s new counsel stated, “[I]n

deference to opposing counsel, appel lant’sl discovery responses may be wanting, for which

[appellant’s attorney] will invest time and effort to remedy and apprize all parties of [appellant’s]

trial position.”

On July 1, 2009, the trial court conducted a hearing on the Tracy appellees’ motion to deem

admissions and for sanctions. Although the trial court indicated some “obstructionist tendencies”

were apparent in appellant’s answers to the requests for admissions, the trial court did not believe

the requested $10,000 sanction was justified. The trial court suggested that if the Tracy appellees

submitted billing records in support of a monetary sanction, the trial court would review the billing

records. The record does not contain an order granting a monetary sanction in response to this

motion.

On July 26, 2010, the trial court conducted a scheduling conference and signed a scheduling

The trial court made the following lindings in suppo of the sanctions imposed under rule 215.2:

a. 13y Poling to comply o ith a court order to produce records or a status report within () das. lappellant’s I counsel
has violated Rule 215.2.
b. The specific acts for which sanctions are imposed are:
[AppellantsJ eounselC failure to request records from the telephone provider(s): failure to provide a status report
as ordered; and failure to produce Dumpster records as ordered.
Them isa direct relationship between the sanction and the offensive conduct because.
Imposing a monetary sanction on [appellants] counsel for the Tracy [appelleesi reasonable fees and expenses
tncurred in filing this motion compensates the Tracy [appelleesi for an effort they would not have expended had
[appellant’s] counsel complied with the Court’s previous order.
d. This sanction is no more severe than necessary to promote full compliance because: there ist direct relationship
between the sanction and the extra effort expended by the Tracy [appelleesj.
c. There is good cause to support lie imposition of sanctions: for the reasons cited above.

1
—1
order that specially set the legal malpractice lawsuit for trial on February 2X, 2011 (the third

scheduling order). ‘1 hat scheduling order. “submitted and agreed to by appellant, provides that by

August 2, 2(10. appellant “shall designate experts and must provide reports.’’

On August 2, 20 10, appellant served her second amended disclosure and identified tour

expert witnesses: appellant’s attorney was designated to testify regarding attorney’s fees: James M.

McCorrnack was designated to testify regarding the legal standard of care; Wayne Hunkins was

designated to testify regarding the legal standard of care and the proper prosecution of products

liability litigation; and Viola Lopez, an expert previously designated by a defendant in the underlying

motorcycle accident litigation, was designated to testify regarding Gary Guim, Sr.’s long-term care.

Appellant provided a curriculum vitae only for Mr. McE’ormack and produced no written expert

reports. Appellant’s expert designations in her amended disclosure contain the following

representations:

Mr. McCormack will likely testify that the Fuqua and Tracy [appellecs] breached
their fiduciary duties and committed attorney negligence in their mishandling of the
underlying Gunn file including claims of Gary Gunn, Sr. and those of [appellant]
individually.

Wayne Hunkins will likely testify that the Fuqua and Tracy [appellees] committed
attorney negligence in their mishandling of the underlying Gunn file including the
claims of Gary Gunn, Sr. and those of [appellant] individually. Mr. Kunkins is also
familiar with products liability cases and may testify about the proper handling ofthe
underlying case and their likely valuation were they properly prosecuted.

On August 12, 2010, the Tracy appellees tiled a motion to exclude appellant’s witnesses

under rule of civil procedure 193.6 and for sanctions under rules 2 15.2(b) and 215.3 for appellant’s

failure to comply with the trial court’s third scheduling order and for abusing the discovery process.

The trial court struck through a pros ision in the thi ni scheduling order stating that failure to Pie certain in liniiation with the trial court
by Februare 2 I 20 I including information spec i lied in rule I 66(i) such as a list of expert witnesses who wi I be called to testify at trial and the
-

subject of the testimony and opinions that will he protfered by each expert witness. “may result in dismissal for want of prosecution or other
al)propTite sanctlon’

—14--
The Tracy appellees set out the chronology of appellant’s hulures to properly designate expert

witnesses and produce expert reports in compliance with the trial court’s orders, noting appellimt had

missed three court-ordered deadlines to designate experts and produce expert reports. The Tracy

appellees asserted appellant’s failure to complywith the trial court’s scheduling order is sanctionable

conduct under rule 215. The Tracy appellees further asserted appellant’s fidlure to properly

designate witnesses is also governed under rule 193.6, and appellant cannot satisfy one of the narrow

exceptions to the rule excluding evidence for failure to timely designate or supplement discovery.

See TEX. R. Civ. P. 193.6(a).’
3 The Tracy appellees requested that the trial court exclude appellant’s

expert witnesses under rule 193.6 and dismiss appellant’s claims with prejudice. They argued that,

because appellant’s conduct involves her expert designations. and expert opinions are necessary for

appellant to prevail in the legal malpractice case, lesser sanctions are difficult to determine. They

asserted that appellant’s inability to locate and adequately designate experts and produce expert

reports in the three years the lawsuit had been on file was sufficient justification to conclude

appellant’s claims lacked merit.

On August 19, 201 0, the Fuqua appellees filed their motion to exclude appellant’s witnesses

and for sanctions under rules 21 5.2(b) and 215.3 and joinder in the Tracy appellees’ August 12, 2010

motion. In their motion, the Fuqua appellees pointed out that appellant obtained new counsel in the

summer of 2008. To accommodate appellant’s new counsel, the trial setting was continued, which

4
Rule 193.1) provides:

(a) Exclusion ofEvidence and Evceplions. A party who fails to make, amend, or supplement a discovery response in a timely
manner may not introduce in evidence the material or information that was not timely disclosed, or offer the testimony ofa
witness (other than a named part\’) who was not timely identified, unless the court finds that:
(1) there was good cause for the Oilure to timely make, amend, or supplement the discovers’ response: or
tt the fitilurc to timely make, amend, or sunpiement the discovery response w:ll not unlairly surprise or unfairly prejudice
the other pa rnes.

l’t:x. R. Civ. P. 193.6(a).

i5—
necessitated conimuance of scheduling order deadlines. A scheduling conference was not held until

June 15, 2010, almost two years atler appellant’s new attorney appeared in the case. The Fuqua

appellees argued that despite the trial court’s numerous orders concerning production of expert

reports, and extensions of time for compliance, no expert report had been produced, and that failure

constituted sufficient grounds to justify a presumption that appellant’s claims lacked merit.

Appellant filed a response to the Tracy and Fuqua appellees’ motions to exclude appellant’s

witnesses and for sanctions.’ At the September 3,2010 hearing of the Tracy and Fuqua appellees’

motions to exclude witnesses and for sanctions, the trial judge stated appellant’s failure to properly

designate expert witnesses and provide expert reports was “definitely sanctionable.” The trial court

noted appellant agreed to the scheduling order specifically requiring production of expert reports.

Moreover, the trial judge stated appellant’s amended disclosures regarding experts were

“insufficient, at best,” noting the general substance of the experts’ mental impressions and opinions

and brief summaries of the bases for their opinions were not in the amended disclosures. See TEx.

R. Civ. P. l94.2(f).’’ Noting the multiple expert witness designation deadlines that had been

is
In response to appellees’ motions, appellant argued the motions lacked certificates of conference. However, mles requiring certificates
of conference are enforced at the option of the trial court. See Union Carbide Corp. v. Martin. 349 S.W.3d 137. 147 (Tex. App.—Dallas 2011, no
pet.) (sanction order should not be vacated based on failure to confer in advance of filing motions); see also Fuentes v. Schooling, No. 07-07-01 18-
CV, 2008 WL 5083012, at *3 (Tex. App —Amarillo Dec. 3,2008. no pet.) (mem. op.) (rejecting allegation trial court abused discretion in levying
sanctions because motion to quash lacked certificate of conference; rules requiring certificates of conference are for trial court’s benefit and may be
enforced at option of trial court): Tjernagcl v. Roberts. 928 S.W.2d 297. 300 01 (l’e App. --Amarillo 996, orig. proceeding).

Rule 94.1 provides a partvmav obtain disclosure from another party of the information or material listed in rule 194,2. Under rule
194.2(0. party may request disclosure of:

(f) for any testifying expert:
(1) the expert’s name, address. and telephone number;
(2) the subject matter on oh ich the expert will testify;
131 the general substance of the expert’s mental impressions and opinions and a brief summary of the basis for
them, or if the expert is not retained by. employed by. or otherwise subject to the control of the responding party.
documents reflecting such information;
(4) if the expert is retained by. employed by. or otherwise subject to the control of the responding party:
(A) all documents, tangible things, reports, models, or data compilations that have been provided to.
reviewed by, or prepared by or for the expert in anticipation of the expert’s testimony; and
(b) the expert’s current resume and bibliography.

‘I’sx. R. Ctv. P. 194.2(f).

16—
imposed and that the case had been on tile br over three years, the trial judge stated she did not

believe she had an opt on but to grant “death penalty” sanctions in this case.

On September 14, 2010, the trial court signed an order on the Tracy appellees’ motion to

exclude appellant’s witnesses and motion for sanctions under rules 2 15.2(b) and 2 15.3. The trial

court granted the motion to exclude appellants expert witnesses because appellant laded to comply

with the court’s third scheduling order regarding designation of expert witnesses and production of

expert reports, granted the motion for sanctions, and ordered appellant’s claims against the Tracy

appellees dismissed with prejudice. In its order, the trial court made the following findings in

support of sanctions under rules 21 5.2(h)(5) and 215.3:

a. By failing to properly designate expert witnesses and to provide reports on July
31, 2010 as ordered. [appellant has] violated Rules 215.1. 215.2(b) and 21 5.3.
b. The specific acts for which sanctions are imposed are [appellant’s] repeated
failure to comply with the Court’s scheduling order and designate expert witnesses
and provide written reports by a date certain. [Appellant] missed two expert
designation deadlines in 2008. Over the Tracy [appellees’J objections in 2008, the
Court provided [appellant] with additional time (more than two years) to find expert
witnesses and to prepare reports. Despite this extended period, [appellant] failed to
provide the Court ordered written reports on 07/31/l0—-the date the Court set for
[appellant’s] expert designation deadline at a .lune 2010 hearing. (The actual
deadline was 08/02/10 by operation of the Texas Rules of Civil Procedure, which
date was incorporated into a subsequently signed court order.)
c. There is a direct relationship between the sanction and the offensive conduct
because: [appellant has] had multiple deadlines to properly designate experts and
[has] failed to do so. [Appellant’s] experts are therefore stricken.
d. This sanction is no more severe than necessary to promote full compliance
because: [appellant has had] multiple deadlines to properly designate experts but
[has] failed to do so. Trial is set in less than six months in a case that has been
pending over three years.
e. There is good cause to support the imposition ob’ sanctions because: The Court
believes that [appellant is] failing to timely prosecute this case.

On September 28, 2010, the trial court signed an order granting the Fuqua appellees’ motion

to exclude appellant’s witnesses and motion for sanctions under rule 2 15.2(b) and 215.3. The trial

court found appellant had been obligated to designate expert witnesses and provide expert reports

—17—
since as early as March 7, 2008. and, at appellant’s request, the trial court had extended her deadline

at least twice, with the most recent deadline being August 2. 2010. The trial court pointed out the

multiple deadlines for designating expert witnesses and providing expert reports appellant tiled to

meet, that even as of the September 3, 2010 hearing on the Fuqua appellees’ motion, appellant had

not provided expert reports, and appellant “provided no evidence ofgood cause for failing to provide

expert reports.” The trial court concluded exclusion ofthe experts’ testimonywas the proper remedy

and a lesser sanction would not serve the purposes of the discovery rules. Because the trial court

concluded expert testimony was required for appellant to prevail on her claims against the Fuqua

appellees, the trial court ordered appellant take nothing by way of her claims against the Fuqua

appellees.

On December 12,2010, appellant filed her motion to set aside the “death penalty” sanctions

and exclusion of expert testimony. In her motion, appellant argued the trial court entered what

amounted to a “death penalty” sanction by foreclosing appellant’s ability to introduce evidence of

attorney malpractice. Appellant argued the trial court had not previously threatened a sanction or

levied a lesser sanction relating to a failure to designate expert witnesses and produce expert reports,

nor was there a finding that the trial court considered lesser sanctions or that appellant’s conduct

justified the presumption that the lawsuit lacked merit Appellant farther argued that although the

trial court had previously sanctioned appellant’s counsel for discovery abuse, that sanction did not

relate to appellant’s designation of expert witnesses or production of expert reports. At the

December2010 hearing ofappellant’s motion to set aside the sanctions, appellant’s counsel argued

that he interpreted the expert report production language in the third scheduling order to refer only

to reports existing as of the production deadline.

In response to appellant’s motion to set aside the sanction excluding appellant’s experts, the

-18-
Fuqua appellees asserted appellant did not misunderstand the trial court’s orders requiring that expert

witnesses be designated and expert reports be produced, pointing to appellant’s statement in her

March 3 1, 2009 motion to extend her deadline for designation of expert witnesses that an extension

was “necessary for the witness to prepare an adequate report” and the statement in appellant’s second

motion for extension of time to designate expert witnesses that her attorney was scheduled to meet

with an expert witness to finalize a written report. The Fuqua appellees argued the trial court’s

exclusion of expert witnesses was a proper sanction for appellant’s conduct, because lesser sanctions

would have no impact on appellant. The trial court denied appellant’s motion to set aside the “death

penalty” sanctions and exclusion of expert testimony.

Analysis

Appellant timely identified her expert witnesses in accordance with the terms of the third

scheduling order. What the trial court concluded appellant failed to do was provide information

concerning the experts’ opinions, including production of their expert reports. We must determine

whether the trial court abused its discretion in excluding the experts and dismissing with prejudice

appellant’s claims against the Tracy appellees and ordering appellant take nothing on her claims

against the Fuqua appellees as discretionary sanctions under rules 215.2(b) and 215.3. The crux of

the issue turns on whether there is a direct relationship between the improper conduct and the

sanctions imposed and whether “death penalty” sanctions imposed by the trial court were excessive.

See TransAmerican, 811 S.W.2d at 917.

We must first determine whether there was a direct relationship between appellant’s

offensive conduct in failing to fully comply with the trial court’s third scheduling order and the

sanctions imposed by the trial court. See Cire, 134 S.W.3d at 839. For “death penalty” sanctions

to be just, the trial court “must determine that ‘a party’s hindrance of the discovery process justifies

—19—
 a presumption that its claims or defenses lack merit.” GTE Comm as Svs. Coip., 856 S.W.2d at 73()

(quoting Trans:liner/caii. $ II S.W.2d at 91 8): ,sc’ also C/re. 134 S.W.3d at 841 (discovery sanctions

can be used to adjudicate the merits of party’s clams only when party’s hindrance of discovery

process )ustities a presumption that its claims lack merit); 5 $tar Dia,nontl, LLC, 369 S.W.3d at 57$.

in determining whether a party’s hindrance of the discovery process justifies a presumption

that her claims lack merit, we consider whether the flu lure to comply with discovery requirements

is the fault of appellant, her counsel, or both. A just sanction should be “visited upon the offender.”

TransAmeri can. $ 11 S.W.2d at 917. As the supreme court stated:

The trial court must at least attempt to (letermine whether the offensive conduct is
attributable to counsel only, or the party only, or to both. This we recognize will not
be an easy matter in many instances. On the one hand, a lawyer cannot shield his
client from sanctions; a party must bear some responsibility for its counsels
discovery abuses when it is or should be aware of counsel’s conduct and the violation
of discovery rules. On the other hand, a party should not be punished for counsel’s
conduct in which it is not implicated apart from having entrusted to counsel its legal
representation.

TransA,’nerican. 811 S.W.2d at 917. See also Tex. Miii. Ins. Co. v. Narvuez, 312 S.W.3d 94, 99—100

(Tex. App—Dallas 2010, pet. denied) (trial court must attempt to determine whether offensive

conduct is attributable to counsel only, to the party only, or to both); Ihompson v. JJoodru//, 232

S.W.3d 3 16, 322 (Tex. App.—Beaumont 2007. no pet.) (trial court abused its discretion in striking

appellants expert witness and dismissing their claims with prejudice: the record provided no

indication appellants were personally responsible for the discovery abuse or even aware their

attorney had failed to produce expert witness tr dcposition: trial court punished appellants for

conduct of their attorney without first imposing lesser sanctions); Murfj 972 S.W.2d at 82 (there was

no indication party had knowledge or role in fluilure to timely designate witnesses and, although

striking witnesses seems to relate directly to failure to designate the witnesses, such sanction most
 severely affects the party, not the attorney).’

There s no indication in the record o this case that appellant had any knowledge o1 or role

in, the ftuilure ol her counsel to timely provide a complete designation of expert witnesses and

produce expert reports. The trial court made no finding that appellant was personally responsible

for the failure of her counsel to fully comply with discovery rules and the scheduling orders in this

case. Accordingly, we cannot conclude on this record that appellant’s failure to fully comply with

the third scheduling order justifies the presumption that her claims lack merit. We conclude there

exists on this record no direct relationship between appellant’s conduct and the extreme sanctions

imposed by the trial court.

However, even assuming there was a direct relationship between appellant’s conduct and the

sanctions of striking appellant’s expert witnesses and dismissing with prejudice appellant’s claims

against the Tracy appellees and ordering appellant take nothing by way of her claims against the

Fuqua appellees, we conclude the “death penalty” sanctions imposed in this case were excessive.

See Alexander v. Tartar & Assocs., Inc., 146 S.W.3d 113, 1 19—20 (Tex. 2004) (when causation is

beyond jury’s common understanding, expert testimony is necessary in legal malpractice claim);

Revco, D.S., inc. v. Cooper, 873 S.W.2d 391, 396 (Tex. App.—El Paso 1994, orig. proceeding)

(exclusion of experts in medical malpractice case requiring expert testimony has a “death penalty”

effect); Murfi 972 S.W.2d at 82 (exclusion of witnesses precluded appellants from presenting their

case properly characterized as “death penalty” sanction).

Sanctions which terminate or inhibit the presentation of the merits of a party’s claim “must

be reserved for circumstances in which a party has so abused the rules of procedure, despite

17
See also Per/do v. Pai,iek. No. 05-98-00585-C V. 2000 \VL 361 524. at 2 (Fex. App—Dallas April 10. 2000. no pet.) (not designated
forpublication) (under lu-st prongol lrans.1,nerican, trial courtmust at least attempt todeterminewbetheroffensiveconduct sattrihutablctocounsel
only, to the party only, or to both).

—21
 imposition of lesser sanctions, that the party’s position can be presumed to lack merit and it would

he unjust to 1crmit the party to present the substance of that position hetbre the court. Braden v.

Downey, 8 1 I S.W.2d 922, 929 (Tex. 1 991) (orig. proceeding) (citing Dans/imerican, 8 I 1 S.W.2d

at 9 I 3). “A sanction imposed for discovery abuse should be no more severe than necessary to satisfy

its legitimate purposes.” TransAmerican, 811 S.W.2d at 917. It, therefore, follows “that courts must

consider the availability of less stringent sanctions and whether such lesser sanctions would fully

promote compliance.” Id. “A sanction is excessive if lesser sanctions would have served the

purposes of compliance, deterrence, and punishment.” 5 StarDiarnond, 369 S.W.3d at 579. “[I]n

all but the most egregious and exceptional circumstances, the trial court must test lesser sanctions

before resorting to death penalty sanctions.” Cire, 134 S.W.3d at 842.

While the trial court’s September 28, 2010 order granting the Fuqua appellees’ motion for

sanctions indicates a lesser sanction would not serve the purposes of the discovery rules, there is no

finding in the trial court’s September 14, 2010 or September 28, 2010 orders granting sanctions

under rule 215 indicating the trial court considered any less stringent sanction. Further, there are no

orders in the record that impose lesser sanctions for appellant’s failure to provide a complete

designation of expert witnesses or produce expert reports pursuant to the trial court’s third

scheduling order or any prior scheduling order. “Death penalty” sanctions are appropriate as an

initial sanction only in the egregious and exceptional case when they are “clearly justified and it is

fully apparent that no lesser sanctions would promote compliance with the rules.” GTE Comme ‘as

Sys. C’orp., 856 S.W.2d at 729. We conclude this is not such a case. Accordingly, it was necessary

for the trial court to actually impose, not simply consider, lesser sanctions before resorting to “death

penalty” sanctions. See Cire, 134 S.W.3d at 842. This the trial court did not do.

Clearly, the record contains evidence of dilatoriness on the part of appellant’s counsel in
[ailing to designate expert witnesses and produce expert reports in compliance with prior scheduling

orders and in [ailing to fully comply with requirements of the third scheduling order relating to

designation of expert witnesses and production ol expert reports, and we do not disagree with the

trial court’s determination the conduct was sanctionable. However, while we do not condone the

conduct in this case constituting discovery abuse. we conclude the sanctions the trial court imposed

were excessive and fail under TransAinerican. Given the facts in our record, we do not conclude that

the conduct of appellant’s counsel “exhibited such flagrant bad thith or callous disregard for the

responsibilities imposed on him by the trial court that such severe sanctions were justified.” See

Mur/j 972 S.W.2d at 83.

Thus, we must conclude the trial coui-t abused its discretion in entering “death penalty”

sanctions against appellant. We resolve appellant’s first issue in her favor.

Catch-All Summary Judgments

In her second issue, appellant contends the trial court erred by granting appellees’ “catch-all”

motions fur summaryjudgment. After the trial court’s September 14, 2010 and September 28, 2010

sanctions orders excluding the experts and dismissing with prejudice appellant’s claims against the

Tracy appellees and ordering appellant take nothing on her claims against the Fuqua appellees,

respectively, the Tracy and Fuqua appellees filed “catch-all” no-evidence motions for summary

judgment. In their “catch-all” motions for summary judgment, appel lees asserted that, in the unlikely

event any of appellant’s claims survived the trial court’s sanction orders or any of appellant’s claims

“are revived,” they were entitled to summary judgment because the appellant had no expert witness

to testify regarding the causation component of appellant’s causes of action.

Order Granting Catch—All Summary .Judgmnent in Favor o/Fuqua Appellees

On January 20,2011, the trial court signed orders granting the Fuqua appellees’ catch-all no-

-23--
evidence motion for summary judgment and severing appellants claims against the luqua appellees

into a separate cause of action. The summary judgment order on the huqua appellees’ catch—all

motion for summary judgment superseded the trial court’s September 28, 2010 order that appellant

take nothing by way of her claims against the Fuqua appellees. See Williams v. Trra, No. 06-06-

001 l$-CV, 2007 WL 1648785, at *I_2 (fex. App.—Texarkana June 8,2007, no pet.) (mem. op.)

(summary judgment order entered after order dismissing case for want of prosecution superseded

dismissal order because trial court had power to “vacate, modify, correct, or reform” dismissal

order); see also Davis Family Blanco Road Prop. Trust v. canyon creek Estates Homeowners Ass ‘n,

No. 04-09-00007-C V. 2009 WL 3382232, at *45 (Tex. App.—San Antonio Oct. 21, 2009, no pet.)

(mem. op.) (by signing partial summary judgment order recognizing trust’s ownership of property.

the trial court impliedly overruled earlier order dismissing trust’s claims for lack of standing based

on non-ownership).

Therefore, we consider whether the trial court erred in granting the Fuqua appellees’ “catch

all” no-evidence motion for summary judgment. Appellant asserted claims of legal malpractice,

breach of fiduciary duty, and fraud against the Fuqua appellees. The Fuqua appellees argued that,

because each of appellant’s causes of action against them contain the element of causation
1 S on

which expert testimony was required and the trial court had stricken appellant’s experts, there was

no-evidence of causation and they were entitled to summary judgment in their favor.

We have concluded that the trial court erred in imposing the “death penalty” sanction of

See Turtur & Assocs., Inc., 146 SW.3d at 117 (to prevail on a legal malpractice claim, plaintiff must show the attorney owed the plaintiff
a duty, the attorney breached that duty, the breach proximately caused plainti fl’s injuries, and damages occurred): Jones v Blume, 196 S.W.3d 440.
447 (Tcx. App.———Dallas 2006. pet. denied) (elements ofbreaeh ufliduciary duty claim are (1) a ficluciai-y relationship between plaintiffand defendant.
(2) defendant breached his fiduciary duty to plaintiff, and (3) defendant’s breach resulted in injury to plaintiff or benefit to defendant): Larsen i
Cur/ene LciigfoiaI & lines Lie.. 41 5,W,3d 245. 249—50 Ocx. App. Vc:ico 2(101 pet. denied (statutory fraud requires showing of reliance on
. .

false representation ii hich caused injury: negligent misrepresentation requires showing damages were proximately caused by reliance on
misrepresentation).

—24--
 striking appellant’s experts and ordering appellant take nothing by way of her claims against the

Fuqua appellees. Consequently. we conclude the trial court erred in granting the Fuqua appellees’

“catch-all” no-evidence summaryjudgment based upon appellant’s lack ofexpert testimony resulting

from that sanction.

Order Granting Catch-All Summary Judgment in Favor of Tracy Appellees

On January 25,2011, the trial court severed appellant’s claims against the Tracy appellees

into a separate cause of action. and on February 16,2011, the trial court signed the final judgment

in favor of the Tracy appellees. On August 22,2011, the trial court signed an order granting the

Tracy appellees’ catch-all no-evidence motion for summaryjudgnient The rules ofcivil procedure

limit a trial court’s jurisdiction after it has entered a final judgment See TEx. R. Civ. P. 329b; see

also Florance v. State, 352 S.W.3d 867, 874 (rex. App.—Dallas 2011, no pet.); Alpert & Cram,

Caton &James, P.C., 178 S.W.3d 398,409 (fex. App.—Houston [1st Dist] 2005, pet. denied) (trial

court has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment

within thirty days after the judgment is signed; the filing ofa motion for new trial under rule 329b(e)

or a motion to modify, correct, or reform the judgment under rule 329b(g), within the initial thirty-

day period, extends the trial court’s jurisdiction over its judgment up to an additional seventy-five

days, depending on when or whether the court acts on the motion). Here, the trial court’s order

granting the Tracy appellees’ catch-all motion for summaryjudgment was signed more than 180 days

after the final judgment was signed. The trial court’s order granting the Tracy appellees’ catch-all

motion for summary judgment signed after its plenary power had expired is void. See State a rel

Latty v. Owens, 907 S.W.2d 484,486 (fex. 1965) (judicial action taken after trial court’s plenary

power has expired is a nullity).

Having concluded that the trial court erred in granting the Fuqua appellees’ “catch-all” no-

—25—
 evidence motion for summary judgment, and that the trial court’s order granting the Tracy appellees’

“catch—all” motion br summary )udgment is void, we resolve appellant’s second issue in her favor.

Leave to File Appellant’s Fourth Amended Petition

Appellant asserts in her third issue that the trial court erred by denying her motion br leave

to file her fourth amended petition. Appellant also argues the trial court erred by subsequently

striking that amended petition.

Generally, a party may amend its pleadings at any time prior to seven days before trial unless

the amended pleadings operate as a surprise to the opposing party. TEX. R. Civ. P.63. A trial court

has no discretion to refuse the amendment unless (1) the opposing party presents evidence of surprise

or prejudice; or (2) the amendment asserts a new cause of action or defense, and thus is prejudicial

on its face, and the opposing party objects to the amendment. State Bar m’. Kilpatrick, 874 S.W.2d

656, 658 (Tex. 1994); 1-Jakemy Bros., Ltd. v. State Bank & Trust Co., Dallas, 1 89 S.W.3d 920, 924

(Tex. App.—Dallas 2006, pet. denied).

The deadline for filing an amended petition imposed by rule 63 may be altered by the trial

court in a scheduling order issued pursuant to rule 166. TEx. R. Civ. P.63. A party may seek leave

of court to amend its pleadings after the deadline imposed by a scheduling order entered pursuant

to rule 166. Id.’ We review a trial court’s enforcement of a scheduling order for an abuse of

discretion. Hakerny Bros., 189 S.W.3d at 924; see also Hardin v. Hardin, 597 S.W.2d 347, 349—50

(Tex. 1980). An abuse of discretion occurs when the trial court acts in an unreasonable and arbitrary

Rule 63 provides:

Pailics ntav amend their pleadings - by filing such pleas with the clerk at such time as not to operate as a surprise to the
opposite party: provided, that any pleadings offered for filing s iihin seven days of the date o trial or hereafter, or after
such time as may be ordered by the judge under Rule 166. shall he filed only aller leave of the judee is obtained, which leave
shall he granted by the judge unless there is a showing that such filing will operate as a surprise to the opposite partY.

Tex. R. Ci\ P. (‘.

26—
 manner, or when it acts without reference to any guiding rules or principles. Walker v. Gutierrcz,

Ill S.W.3d 56,62 (Tn. 2003).

When amendments which introduce new substantive matter have been refused by the trial

court under rule 63, the burden ofshowing an abuse ofdiscretion is on the complaining party, rather

than on the opposite party to show surprise. ifardin, 597 S.W.2d at 349. On appeal. the trial court’s

ruling will not be disturbed unless the complaining party clearly shows an abuse of discretion. Id.

Appellant filed her original petition in this legal malpractice lawsuit on April 6,2007. On

June 21,2007. the thai court signed a Uniform Scheduling Order. The scheduling order provided

that any amended pleadings asserting new causes of action must be filed no later than thirty days

before the end ofthe discovery period. Following entry ofthat scheduling order, appellant filed her

first amended petition on June 28, 2007, and her second amended petition on September 25,2007.

On January 15, 2008, appellant and the Tracy appellees filed an agreed motion for

continuance ofthe April 7,2008 trial setting and for an October 14,2008 special trial setting. The

trial court’s second scheduling order provided that amended pleadings adding a new claim were to

be “complete” by April 1, 2008, and amended pleadings not adding a new claim were to be

“complete” by August 1,2008. On September26, 2008, appellant filed her third amended petition

adding the Fuqua appellees as defendants in the lawsuit Appellant re-filed her third amended

petition on August 19, 2009.20

The trial court’s July 26, 2010 third scheduling order specially set the lawsuit for trial on

February 28, 2011. That scheduling order, reflecting that it was “submitted and agreed to” by

appellant, includes the deadlines ofAugust 14, 2010 for filing a motion to amend pleadings adding

20
re-filed third amended petition states it is identical in all respect? to appellant’s prcviously filed third amended petition, it was being
re-filed “in an abundance ofcaution for strict compliance” with chapter 33.004(e) ofthe civil peactice and remedies code, and appellant did
not by
re-filing the pleading “re-assest any matters, claims. or otherwise, the subject matter thereof having been already tided on” by the
trial coin

—27—
 a new claim, and December 15. 2010 to amend pleadings that do not add new claims.

After the deadline for liling an amended pleading adding a new claim, on August 16,2010,

appellant filed a motion for leave to file her fourth amended petition against the Tracy and Fuqua

appellees. In her motion, appellant stated that all facts pleaded in her fourth amended petition are

contained in depositions and documents produced by defendants, and, therefore, no prejudice or

surprise could be alleged in good faith by the appellees. Appellant’s tburth amended petition was

filed contemporaneously with her motion.

In the Fuqua appellees’ August 27, 2010 response in opposition to appellant’s motion for

leave to file her fourth amended petition, they argued the lawsuit had been on file for over three

years, and appellant’s proposed fourth amended petition asserted new claims of alleged violations

ofthe Deceptive Trade Practices Act (DTPA), see TEx. Bus. & COM. CODE ANN. § 1 7.50(aX1XA)

(West 2011), ofnegligence, negligence per se, and gross negligence for their alleged violation of a

rule of professional conduct, see ‘rEx. DscIPLINARY RuLEs PR0F’L CoNDucT R. 1.01(a), reprinted

in Ta Gov’T CODE ANN. fit. 2, subtit. G, app. A (West 2005), and for a declaratoryjudgment. The

Fuqua appellees objected to appellant’s fourth amended petition based on surprise and prejudice.

On September 3, 2010, the Tracy appellees also filed objections to appellant’s proposed

fourth amended petition. The Tracy appellees argued the proposed pleading attempted to overrule

the trial court’s prior orders granting various summary judgments by reviving the dismissed claims,

incorporated new factual allegations that contradict Candace Gunn’s prior deposition testimony in

the legal malpractice action and in her prior sworn testimony at the prove-up hearing of the

settlement of Gary Gunn, Sr.’s claims against BMW. The Tracy appellees also argued appellant’s

fourth amended petition added a DTPA claim, a claim for declaratory judgment, allegations for

disgorgement ofattorney’s fees, and a fraud allegation to the previously-pleaded misrepresentation

—28--
 claim, and the pleading significantly altered the factual background of the litigation.
’
2

On October 26,2010, the trial court conducted a hearing on appellant’s motion for leave to

file her fourth amended petition. Appellant relied on documents produced in discovery by the parties

to rebut appellees’ prejudice and surprise objections to the newly-asserted causes of action in

appellant’s proposed fourth amended petition. Appellant argued the newly-asserted causes ofaction

were based on existing facts.

In January 2011, the trial court signed orders denying appellant’s motion for leave to file her

fourth amended petition and striking appellant’s fourth amended petition that had been filed

contemporaneously with her motion. The trial court’s order striking appellant’s fourth amended

petition contains the trial court’s specific findings that appellant’s fourth amended petition added

new claims and causes of action, was filed after the deadline in the trial court’s third scheduling

order for filing new claims, and was prejudicial to the fair trial of the lawsuit?’

Here, appellant moved to file her fourth amended petition after the deadline imposed by the

trial court’s third scheduling order, and the proposed fourth amended petition asserted new claims

of alleged DTPA violations, of negligence, negligence per se, and gross negligence for alleged

violation of a rule of profrssional responsibility, a claim for declaratory judgment, allegations

relating to disgorgement of attorney’s fees, and a fraud allegation to a previously-pleaded

misrepresentation claim. The amended pleading was prejudicial where appellant attempted to assert

new causes of action, and appellees timely objected to the amended pleading. See Kilpatrick, 874

S.W.2d at 658 (rex. 1994). On this record, appellant has failed to establish the trial court abused

2!
On October 22, 2010, the Tenoy appellccs filed a supplemental objection to appellant’s motion for leave to file her fourth amended
petition, arguing the petition was moot because the trial court dismissed the Thoy appellees by order signed September 14.2010.

1,
— 4i the hearing, the trial couat stated it had to deny appellant’s motion flit leave to file her fourth amended petition, because the
ease had
been “going on too long,”

—29—
its discretion in denying appellant’s motion lor leave to ide her lourth amended petition or or

striking appellant’s fOurth amended petition. We resolve appellant’s third issue against her.

Conclusion

We conclude the trial court did not err in denying appellant’s motion for leave to File her

fourth amended petition. We conclude the trial court erred in striking appellant’s expert witnesses

and in granting the Fuqua appellees’ and the Tracy appellees’ “catch—all” no—evidence

summary judgment. We reverse the judgments of the trial court and remand these causes to the trial

court for further proceedings.

ROBERT M. FILLMORE
JUSTICE

I lOl62F.P05

—j —
 (!uurt nf iprth
Fift1i District nf cxa at 1t1tai

JUDGMENT
CANDACEGUNN, INDIVIDUALLY, AND Appeal from the 191st Judicial District Court
AS EXT FRIEND OF GARY GUNN, SR., of Dallas County, Texas. (Tr.Ct.Nos. DC-I 1-
Appellant 0081 I-i and DC-i 1-00974-i).
Opinion delivered by Justice Fillmore,
No. 05-1 l-00162-CV V. Justices FitzGerald and Richter participating.

KENNETH W. FUQUA, RODNEY JAY
GAPPLEBERG, FUQUA & GAPPELBERG,
LLP F/K/A FUQUA HUDNALL &
GAPPLEBERG, LLP, TODD E. TRACY,
AND TRACY & CARBOY, Appellees

In accordance with this Court’s opinion of this date, we AFFIRi’I the trial court’s order
denying appellant Candace Gunn, Individually, and as Next Friend of Gary Gunn, Sr.’s motion for
leave to file her fourth amended petition. The judgments of the trial court are REVERSED and
these causes are REMANDED to the trial court for further proceedings. It is ORDERED that
appellant Candace Gunn, Individually, and as Next Friend of Gary Gunn, Sr. recover her costs of this
appeal from appellees Kenneth W. Fuqua, RodneyJayGappleberg, Fuqua & Gappeiberg, LLP f’kla
Fuqua Hudnall & Gappleberg. LLP, Todd E. Tracy, and Tracy & Carboy.

Judgment entered April 11, 2013.

/

ROBERT ‘. FILLMORE
JUSTICE