Opinion
13-23-00048-CV
08-08-2023
IN RE ROSALINDA RUIZ
On Petition for Writ of Mandamus.
Before Chief Justice Contreras and Justices Longoria and Silva
MEMORANDUM OPINION
See Tex. R. App. P. 52.8(d) ("When denying relief, the court may hand down an opinion but is not required to do so. When granting relief, the court must hand down an opinion as in any other case."); id. R. 47.4 (distinguishing opinions and memorandum opinions).
By petition for writ of mandamus, relator Rosalinda Ruiz contends that the trial court abused its discretion by: (1) denying Ruiz's supplemental motion to disqualify counsel; and (2) granting "death penalty" sanctions against Ruiz by striking her expert witnesses. We conditionally grant the petition for writ of mandamus.
This original proceeding arises from trial court cause number CL-18-6397-J in the County Court at Law No. 10 of Hidalgo County, Texas, and the respondent is the Honorable Armando J. Marroquin. See id. R. 52.2.
I. Background
Maricela Huerta, individually and as next friend to E.H. and A.H., minors, filed suit against Ruiz for personal injury damages that Huerta and her minor children (real parties) sustained in an automobile accident. During the litigation, the trial court granted a partial summary judgment in favor of the real parties on Ruiz's liability, and the only remaining issue in the case is the damages allegedly sustained by the real parties. On or about October 31, 2022, the case proceeded to trial before a jury, but the trial court granted a mistrial shortly thereafter.
A. Discovery
Ruiz designated Dr. A.J. Ramos to testify regarding the reasonableness and necessity of the real parties' past and future medical treatment. According to the designation, Dr. Ramos would opine that:
The medical treatment that [the real parties] received after the motor vehicle accident was not all medically necessary or reasonable, including their associated costs. [The real parties'] medical records do not substantiate or support the extent and amount of medical treatment allegedly incurred by the [real parties], nor were the referral to other healthcare providers necessary.
Ruiz further designated Dr. Nathan S. Walters to testify about the reasonableness and necessity of the past and future medical treatment for Huerta. According to the designation, Dr. Walters would opine that:
The medical treatment that [Huerta] received after the motor vehicle accident was not all medically necessary or reasonable, including [the] associated costs. [Huerta's] medical records do not substantiate or support the extent and amount of medical treatment allegedly incurred by [Huerta], nor were the referral to other healthcare providers necessary.
On August 16, 2022, the real parties filed a motion to compel Ruiz to respond to numerous interrogatories, requests for production, and requests for admission. On October 12, 2022, the trial court signed an order compelling Ruiz to respond fully to some of these discovery requests, including requests for production numbers eleven and thirty-eight, no later than October 17, 2022. Request for production number eleven sought, with regard to testifying experts: "All reports, graphs, summaries, photographs, physical models, or other compilations of data and other materials prepared for each such testifying or consulting expert in anticipation of the expert's oral deposition or trial testimony." Request for production number thirty-eight sought the production of: "A curriculum vitae or resume, written report, bibliography, fee agreement[,] and list of cases each expert has testified in over the past ten years, whether live or by deposition, for any individual whom you may call as an expert witness in the trial of this matter."
On October 31, 2022, the real parties filed a motion for discovery sanctions against Ruiz alleging that she "failed to comply with the Court's order" compelling responses to requests for production numbers eleven and thirty-eight. The real parties contended, inter alia, that Ruiz had only produced a curriculum vitae (CV) for Dr. Ramos "along with one report on a cervical reading impression" and that Ruiz failed to provide a "CV or resume, written report, bibliography, fee agreement[,] or a list of cases each expert has testified in over the past five years as ordered by the Court." The real parties thus asked the trial court to strike Ruiz's retained experts. They also filed separate motions to strike the testimony of Drs. Ramos and Walters. The trial court did not immediately rule on the real parties' motions.
On November 11, 2022, after the mistrial, Ruiz filed supplemental discovery responses to include "updated CVs, fee schedules, and case lists for Dr. Ramos and Dr. Walters and reference materials relied on by Dr. Ramos in forming his opinions regarding the injuries shown by Huerta's MRI." On November 16, 2022, the real parties filed a second motion for discovery sanctions, again arguing that Ruiz failed to properly respond to requests for production numbers eleven and thirty-eight. They asserted that Ruiz's supplemental discovery responses remained defective because she "failed to: (1) properly identify the cases [that her] experts have testified in to include the cause number and in what courts; (2) provide an expert report for [Dr. Walters]; and (3) provide copies of [her] experts' billing."
On November 22, 2022, the trial court held a non-evidentiary hearing on the real parties' second motion for discovery sanctions. Counsel for the real parties alleged that Ruiz had provided the total sum billed by Drs. Ramos and Walters but failed to produce their billing records. They further alleged that Dr. Walters did not provide an expert report, but only provided counter-affidavits, and that Dr. Ramos provided an expert report, but only as to Huerta's cervical damage and not as to her alleged lumbar damage. Finally, counsel for the real parties asserted that Ruiz had provided the cause numbers in which these experts had testified but did not identify the court location needed to identify those cases. Counsel argued that Ruiz's failure to provide a complete case list and billing records hampered or defeated the real parties' ability to determine whether these experts were qualified and to determine any issues regarding their impeachment.
In response, counsel for Ruiz alleged that she had produced the experts' fee schedules but had not produced their billing records because the experts had, essentially, not completed their work on the case. Counsel alleged that the real parties could obtain the specific amounts paid and expected to be paid during the experts' trial testimony. Counsel for Ruiz argued that counter-affidavits sufficed to determine the bases for the experts' testimony, and if the real parties wanted more information, they could have noticed the experts' depositions. Counsel asserted it was their understanding that discovery "was closed," and there was no reason to "request the creation of extra records that [Ruiz's] experts have not created." Counsel argued that the list of cases in which the experts had testified were "kept by the experts, themselves, not by the attorneys," and that counsel "cannot change how they do their record keeping," and "can't create and manipulate records . . . just to placate [the real parties'] attorney." Counsel ultimately argued that Ruiz had complied with all the discovery requirements established at the last trial.
On November 29, the trial court signed an order granting the real parties' initial motion for discovery sanctions. This order does not provide any information regarding the sanction imposed. On December 2, 2022, the trial court signed an order granting the real parties' second motion for discovery sanctions. This order provides that Drs. Ramos and Walters are "struck and barred from either testifying or giving any testimony in this matter." The order stated that this constituted a "just and equitable outcome as there is a direct relationship between the conduct and the sanction," and "the sanction is no more severe than necessary to promote full future compliance" by Ruiz or others in the future. On January 24, 2023, the trial court denied reconsideration of this ruling.
B. Disqualification
In the lawsuit, the real parties are represented by Ruben R. Ramirez and his law firm, Loncar Lyon Jenkins, and Ruiz is represented by Chavez Legal Group, now named the Martinez, Dietrich, and Zarcone Legal Group. On January 23, 2023, the real parties filed a pleading designating Carina Garza De Luna of Loncar Lyon Jenkins as their "co-lead counsel." The next day, on January 24, 2023, Ruiz filed a "Motion to Disqualify Attorney In Charge." Ruiz's motion to disqualify alleged in relevant part:
De Luna's name appears in the record as "De Luna" and "de Luna." We use "De Luna" in this memorandum opinion because it is how her name appears on the pleading that she filed in this case.
2. [De Luna] was an attorney at Chavez Legal Group (now Martinez, Dietrich, and Zarcone Legal Group) on or about October 31, 2022, when this court granted a mistrial of this case. On or about November 4, 2022, [Ruiz's] attorneys participated in a conference with all other attorneys at Chavez Legal Group wherein they debriefed all other attorneys on the case and after which all other attorneys participated in a round table of the issues in this case. At said round table, confidential and privileged matters were discussed. This included a discussion regarding future trial strategies.
3. [De Luna] also participated in several discussions regarding this case via Martinez, Dietrich, and Zarcone Legal Group's inter-office chat program.
4. [De Luna] remained employed at Martinez, Dietrich, and Zarcone until December 31, 2022.
Ruiz argued that De Luna had "a clear conflict of interest" because "she previously participated in privileged and confidential discussions with [Ruiz's] attorneys wherein she gained knowledge that would be detrimental to [Ruiz's] case." Ruiz asserted that if De Luna were allowed to remain as co-lead counsel for the real parties in interest, "the conflict of interest will likely prejudice [Ruiz] in that [De Luna] will utilize the privileged information gained at the round table conference and discussion of the case on [Ruiz's] counsel's inter-office messaging system to benefit her client at trial." The motion to disqualify was supported by the affidavit of John M. Schulz which stated in relevant part:
I am the Senior Attorney for the McAllen office of Martinez, Dietrich, and Zarcone Legal Group. Martinez, Dietrich, and Zarcone Legal Group is the successor entity of Chavez Legal Group. The firm had a firm name change and a change in leadership on or about January 18, 2023. I have reviewed [Ruiz's] Motion to Disqualify Attorney in Charge. Everything in said Motion is true and correct to the best of my knowledge. Furthermore, since my time at this firm, I have observed a culture of collaboration and cooperation within our office. This leads me to believe that there is a high [likelihood] that Uri Heller and/or Mauricio Martinez may have discussed facts and legal strategy of this matter prior to the initial trial. However, [Heller] or [Martinez] would have better knowledge of such. I can affirm that at our weekly meeting after this trial, [Heller] discussed the details of this case in particular and that there was specific discussion of future action and legal strategy to take, in light of the mistrial.
On January 24, 2023, De Luna filed an agreed motion to withdraw as co-lead counsel for the real parties in interest. De Luna's motion stated that "[t]here is good cause, as required by Texas Rule of Civil Procedure 10," for the trial court to grant the motion, and that Ramirez would remain as lead counsel for the real parties. That same day, the trial court signed an agreed order granting De Luna's motion to withdraw.
The "agreed motion" is not signed by counsel for Ruiz.
On January 30, 2023, Ruiz filed a "Supplemental Motion to Disqualify Attorney-in-Charge and Firm," through which she sought to disqualify Ramirez and the law firm of Loncar Lyon Jenkins as counsel for the real parties in interest. Ruiz's supplemental motion for disqualification states:
Attorney [De Luna] was an attorney at Chavez Legal Group (now Martinez, Dietrich, and Zarcone Legal Group, hereinafter referred to as "the firm") on
or about October 31, 2022, when this Court granted a mistrial of this case. On or about November 4, 2022, [Ruiz's] trial attorneys, [Heller] and [Martinez], led a conference with the firm's other attorneys. During said conference, the trial attorneys debriefed all other attorneys on the case, after which all attorneys participated in a round table discussion of the issues in the case. At this round table, confidential and privileged matters were discussed, including a discussion regarding future trial strategies. [De Luna] was present at and participated in the debriefing and round table discussion. [De Luna] also participated in several discussions regarding this case via the firm's inter-office chat program.(Internal citations omitted). According to the supplemental motion, De Luna was employed at the firm until December 31, 2022, and then filed her designation as counsel for the real parties on January 23, 2023. Ruiz alleged that there was an irrebuttable presumption that De Luna obtained confidential information about the case and that knowledge was imputed by law to all attorneys in that firm. The allegations in the supplemental motion were supported by the affidavit provided by Heller, which stated that he had personal knowledge of the facts stated in the motion and that they were true and correct. Heller averred that De Luna participated in a post-trial "round table" conference after the mistrial at which counsel discussed the mistrial, "confidential and privileged matters," and "future trial strategies" and that De Luna participated in further discussions regarding the case in the firm's "inter-office chat program," which also included "confidential and privileged information" regarding the case and "trial strategy for the retrial." The allegations in the supplemental motion were also supported by a new affidavit by Schulz regarding the law firm's "culture of collaboration and cooperation" on cases including "confidential and privileged information." Schulz also stated that De Luna was present at the post-trial conference and participated in the debriefing and discussion, and the conference included "discussions regarding legal strategies, tasks needing completion, and actions needed to be taken in light of the mistrial."
The trial court heard argument on Ruiz's supplemental motion for disqualification at a pretrial hearing on January 31, 2023. Ruiz presented the bases for the firm's disqualification. In response, counsel for the real parties asserted that there was "nothing in the record that shows that she truly did get any kind of information on there," that De Luna had "taken no active role in this case" for the real parties, that Ruiz was "scrambling" to avoid losing the trial, and that it would be "against public policy" to disqualify a law firm based on attorney movement between firms. Counsel for the real parties further asserted that De Luna "never represented" Ruiz and "was just in the same building" as Ruiz's counsel. The real parties did not file a written response in support of their position or offer evidence in support of these arguments.
After taking the matter under submission, on February 1, 2023, the trial court denied Ruiz's supplemental motion for disqualification.
C. Summary
This original proceeding ensued. Ruiz argues that the trial court abused its discretion in failing to disqualify Ramirez and his firm. Ruiz contends "an attorney who had previously represented [Ruiz] is automatically disqualified from representing another person adverse to the former client in the same matter and that disqualification is imputed to her new firm." Ruiz further alleges that the trial court abused its discretion in granting the real parties' second motion for discovery sanctions and striking her expert witnesses. Ruiz argues that the trial court's sanctions deprived her of the expert testimony necessary to establish her defense and thus constituted "death penalty" sanctions. Ruiz contends that the trial court never considered lesser sanctions and offered no explanation for its ruling, and that the excluded expert testimony was known to the real parties and would not have unfairly surprised or prejudiced them.
This Court requested and received a response to the petition for writ of mandamus from the real parties. The real parties assert that Ruiz delayed filing her supplemental motion for disqualification until "the eve of the jury trial" and thus waived her quest for disqualification "by strategically waiting to file her supplemental motion to disqualify." The real parties argue that the trial court did not abuse its discretion in striking Ruiz's experts because Ruiz "never fully responded" to their discovery requests seeking information regarding the experts despite the trial court's order compelling her to do so. The real parties further contend that the trial court's order does not constitute a "death penalty" sanction, thus, inter alia, Ruiz possesses an adequate remedy by appeal to address any alleged error. Ruiz has filed a reply in response to these arguments and in support of her petition for writ of mandamus.
II. Mandamus
Mandamus is an extraordinary and discretionary remedy. See In re Allstate Indem. Co., 622 S.W.3d 870, 883 (Tex. 2021) (orig. proceeding); In re Garza, 544 S.W.3d 836, 840 (Tex. 2018) (orig. proceeding) (per curiam); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 138 (Tex. 2004) (orig. proceeding). The relator must show that: (1) the trial court abused its discretion, and (2) the relator lacks an adequate remedy on appeal. In re USAA Gen. Indem. Co., 624 S.W.3d 782, 787 (Tex. 2021) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d at 135-36; Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding).
When a trial court abuses its discretion by denying a motion to disqualify counsel, appeal is an inadequate remedy. In re Murrin Bros. 1885, Ltd., 603 S.W.3d 53, 57 (Tex. 2019) (orig. proceeding); In re Turner, 542 S.W.3d 553, 555 (Tex. 2017) (orig. proceeding) (per curiam); In re Guar. Ins. Servs., Inc., 343 S.W.3d 130, 132 (Tex. 2011) (orig. proceeding) (per curiam); In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 383 (Tex. 2005) (orig. proceeding) (per curiam); In re Sanders, 153 S.W.3d 54, 56 (Tex. 2004) (orig. proceeding) (per curiam); NCNB Tex. Nat'l Bank v. Coker, 765 S.W.2d 398, 400 (Tex. 1989) (orig. proceeding). Consequently, the "pertinent inquiry" is whether the trial court abused its discretion by refusing to disqualify the law firm. See In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002) (orig. proceeding) (per curiam).
The Texas Supreme Court has held that an appeal from the imposition of case determinative or "death penalty" sanctions is inadequate, unless the sanctions are imposed simultaneously with a final, appealable judgment. GTE Commc'ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 732 (Tex. 1993) (orig. proceeding). Ultimately, when a trial court's sanctions order vitiates or severely compromises a party's ability to present a viable claim or defense at trial, an appeal is an inadequate remedy. In re Garza, 544 S.W.3d at 840; see In re Allstate Indem. Co., 622 S.W.3d at 883. In such a case, a "relator must establish the effective denial of a reasonable opportunity to develop the merits of his or her case, so that the trial would be a waste of judicial resources." Walker, 827 S.W.2d at 843.
III. Disqualification
Ruiz's first issue assails the trial court's refusal to disqualify the real parties' counsel and firm. "Disqualification of counsel is a severe remedy that can result in significant expense to clients, disrupt the orderly progress of litigation, and deprive a party of the counsel of its choice." In re Murrin Bros. 1885, Ltd., 603 S.W.3d at 57; see In re Cerberus Capital Mgmt., L.P., 164 S.W.3d at 382; In re Nitla S.A. de C.V., 92 S.W.3d at 422; In re Tex. Windstorm Ins. Ass'n, 417 S.W.3d 119, 128-29 (Tex. App.-Houston [1st Dist.] 2013, orig. proceeding). "Disqualification can delay proceedings in the trial court, require the client to engage a successor attorney, and, in appropriate cases, deprive the client of work product done on his behalf by the disqualified attorney." In re Tex. Windstorm Ins. Ass'n, 417 S.W.3d at 129. "To prevent the abusive filing of such a motion for tactical reasons, the court must carefully evaluate the motion and record to determine if disqualification is warranted." Id.; see In re Nitla S.A. de C.V., 92 S.W.3d at 422. Courts thus must apply an exacting standard in ruling on disqualification motions. In re Murrin Bros. 1885, Ltd., 603 S.W.3d at 57; Coker, 765 S.W.2d at 399; see Spears v. Fourth Ct. of Apps., 797 S.W.2d 654, 656 (Tex. 1990) (orig. proceeding).
The Texas Disciplinary Rules of Professional Conduct do not set the standard for disqualification; however, they "provide helpful guidance" and "suggest the relevant considerations." In re Murrin Bros. 1885, Ltd., 603 S.W.3d at 57 (quoting Nat'l Med. Enters., Inc. v. Godbey, 924 S.W.2d 123, 132 (Tex. 1996) (orig. proceeding); see In re Cerberus Capital Mgmt., L.P., 164 S.W.3d at 382; In re Tex. Windstorm Ins. Ass'n, 417 S.W.3d at 129. We consider all of the facts and the circumstances of the case in determining whether disqualification is warranted. In re Murrin Bros. 1885, Ltd., 603 S.W.3d at 57. The movant bears the burden of proof on a disqualification motion. In re EPIC Holdings, Inc., 985 S.W.2d 41, 60 (Tex. 1998) (orig. proceeding). The movant must also show that it will suffer actual prejudice if counsel is not disqualified. In re Murrin Bros. 1885, Ltd., 603 S.W.3d at 57; In re Nitla S.A. de C.V., 92 S.W.3d at 422. In our review, we also consider the extent to which the non-movant will suffer prejudice if counsel is disqualified. See id.
Ruiz's supplemental motion to disqualify is premised on a former-client conflict under Texas Disciplinary Rule of Professional Conduct 1.09. See Tex. Disciplinary R. Prof'l Conduct R. 1.09, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G, app. A, Art. 10, § 9. Rule 1.09, entitled "Conflict of Interest: Former Client," provides in relevant part that, "[w]ithout prior consent, a lawyer who personally has formerly represented a client in a matter shall not thereafter represent another person in a matter adverse to the former client . . . if it is the same or a substantially related matter." Id. R. 1.09(a). Thus, "[a]n attorney who has previously represented a client may not represent another person in a matter adverse to the former client if the matters are the same or substantially related." In re Columbia Valley Healthcare Sys., L.P., 320 S.W.3d 819, 824 (Tex. 2010) (orig. proceeding); see In re Thetford, 574 S.W.3d 362, 373 (Tex. 2019) (orig. proceeding); In re Guar. Ins. Servs., Inc., 343 S.W.3d at 134.
If an attorney works on a case, we apply an irrebuttable presumption that the attorney obtained confidential information about the case. In re Thetford, 574 S.W.3d at 373; In re Guar. Ins. Servs., Inc., 343 S.W.3d at 134; In re Columbia Valley Healthcare Sys., L.P., 320 S.W.3d at 824; In re Fenenbock, 621 S.W.3d 724, 734 (Tex. App.-El Paso 2020, orig. proceeding). "Although the attorney will not be presumed to have shared that information with his current client, the 'appearance of impropriety' demands that the trial court disqualify counsel." In re Thetford, 574 S.W.3d at 373 (citing Coker, 765 S.W.2d at 400); see In re Fenenbock, 621 S.W.3d at 734. Then, if the attorney "moves to another firm and the second firm is representing an opposing party in ongoing litigation, a second irrebuttable presumption arises; it is presumed that the lawyer will share the confidences with members of the second firm . . . ." In re Columbia Valley Healthcare Sys., L.P., 320 S.W.3d at 824; see In re Guar. Ins. Servs., Inc., 343 S.W.3d at 134. "The effect of this second presumption is the mandatory disqualification of the second firm." In re Guar. Ins. Servs., Inc., 343 S.W.3d at 134; see In re Columbia Valley Healthcare Sys., L.P., 320 S.W.3d at 824 (stating that the second irrebuttable presumption "requir[es] imputed disqualification of the firm"); see also Phoenix Founders, Inc. v. Marshall, 887 S.W.2d 831, 833 (Tex. 1994) (orig. proceeding). In Godbey, the Texas Supreme Court stated that the application of an irrebuttable presumption in these circumstances was based on "[t]he difficulty in proving a misuse of confidences" and the "doubt cast upon the integrity of the legal profession." 924 S.W.2d at 132. The supreme court further explained:
One reason for this presumption is that it would always be virtually impossible for a former client to prove that attorneys in the same firm had not shared confidences. Another reason for the presumption is that it helps clients feel more secure. Also, the presumption helps guard the integrity of the legal practice by removing undue suspicion that clients' interests are not being fully protected.Id. at 131 (citations omitted).
The essential facts of this case are not in dispute. De Luna worked for the law firm representing Ruiz at the time this lawsuit was filed through the original trial date. Although the real parties argue that De Luna did not participate in Ruiz's defense of this case-and go so far as to allege that she merely worked in the same building as Ruiz's counsel- Ruiz has provided evidence that De Luna participated in a conference regarding the mistrial in which "confidential and privileged matters" and "future trial strategies" were discussed and that she participated in further discussions regarding the case in the firm's "inter-office chat program." Patently, De Luna worked on the case and obtained confidential information about the case. See In re Thetford, 574 S.W.3d at 373; In re Guar. Ins. Servs., Inc., 343 S.W.3d at 134; In re Columbia Valley Healthcare Sys., L.P., 320 S.W.3d at 824; In re Fenenbock, 621 S.W.3d at 734. De Luna left the firm representing Ruiz, then, without Ruiz's consent, De Luna appeared on behalf of the real parties, acting in opposition to Ruiz, in the same case. Because De Luna moved to the law firm representing the real parties, the opposing parties in ongoing litigation, we employ the second irrebuttable presumption, which requires the mandatory disqualification of her firm. See In re Guar. Ins. Servs., Inc., 343 S.W.3d at 134; In re Columbia Valley Healthcare Sys., L.P., 320 S.W.3d at 824. This would be necessary even if the real parties did not file a pleading designating De Luna as their "co-lead counsel" in the underlying case.
Real parties do not assail either the facts or the law regarding Ruiz's motion to disqualify Ramirez and the firm. Instead, they argue that Ruiz "waited until the eve of trial to seek disqualification of the law firm representing [the real parties], and she has therefore waived her complaints . . . ." The real parties contend that Ruiz was aware of the potential grounds for disqualifying the law firm on January 23, 2023, and yet waited until January 30, 2023, one week later, to file her supplemental motion to disqualify the law firm. According to the real parties, Ruiz waited until the "eve of trial and after engaging in an extensive pre-trial hearing on important issues concerning the jury trial," and this "delay demonstrates an attempted dilatory tactic to delay trial or force settlement." They assert that:
In this case, it should not matter that [Ruiz] waited only six days after learning of the potential conflict with [the real parties'] lead counsel and firm to file her supplemental motion, as she clearly chose not to file her supplemental motion to disqualify as soon as practicable despite the upcoming trial date and attorney preparation that would continue until the trial date.
A party who fails to file a motion to disqualify counsel in a timely manner waives its complaint. In re RSR Corp., 568 S.W.3d 663, 666 (Tex. 2019) (orig. proceeding) (per curiam); In re George, 28 S.W.3d 511, 513 (Tex. 2000) (orig. proceeding); In re EPIC Holdings, Inc., 985 S.W.2d at 52; Vaughan v. Walther, 875 S.W.2d 690, 690 (Tex. 1994) (orig. proceeding) (per curiam). "Waiver is the intentional relinquishment of a right actually known, or intentional conduct inconsistent with claiming that right." In re RSR Corp., 568 S.W.3d at 666 (quoting Ulico Cas. Co. v. Allied Pilots Ass'n, 262 S.W.3d 773, 778 (Tex. 2008)). The concept of waiver in this context thus requires us to consider both timeliness and the movant's conduct. See id. ("This case lies at the intersection of dilatoriness and waiver."); see also In re State, 2022 WL 1462275, at *4 (Tex. App.-Amarillo May 9, 2022, orig. proceeding) (mem. op.). In determining whether disqualification has been waived, we consider the length of time between when the conflict became apparent to the movant and when the movant filed its motion for disqualification. Spears, 797 S.W.2d at 656; In re Kyle Fin. Grp., LLC, 562 S.W.3d 795, 798 (Tex. App.-Houston [14th Dist.] 2018, orig. proceeding); BP Am. Prod. Co. v. Zaffirini, 419 S.W.3d 485, 514 (Tex. App.-San Antonio 2013, pet. denied); In re La. Tex. Healthcare Mgmt., L.L.C., 349 S.W.3d 688, 689 (Tex. App.-Houston [14th Dist.] 2011, orig. proceeding). And "[i]n cases of waiver by litigation conduct, the precise question is not so much when waiver occurs as when a party can no longer take it back." In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 714 (Tex. 2016) (orig. proceeding) (quoting Perry Homes v. Cull, 258 S.W.3d 580, 595 (Tex. 2008)). We also examine any evidence that indicates the movant is filing the motion for disqualification as a dilatory trial tactic rather than to address any concern regarding the divulgence of attorney-client confidences. Spears, 797 S.W.2d at 658; In re Kyle Fin. Group, LLC, 562 S.W.3d at 798; In re La. Tex. Healthcare Mgmt., L.L.C., 349 S.W.3d at 690. We consider whether the movant has a satisfactory explanation for the delay and whether the delay has prejudiced the opposing party. In re EPIC Holdings, Inc., 985 S.W.2d at 52-53.
Ruiz alleges that it was her burden to establish the disqualification of the entire firm, that this entailed a "fact-specific inquiry," and that "[t]aking only six days to gather the evidence needed to satisfy her burden was reasonable" and did not constitute waiver. According to Ruiz:
[Real parties] filed their designation of [De Luna] as co-lead counsel on January 23, 2023, only one day prior to the already-scheduled January 24 pre-trial hearing. [Ruiz] then acted as quickly as possible-based on her attorney's existing knowledge about the governing legal authorities and [De Luna's] involvement in [Ruiz's] case-to have something on file, ahead of the hearing, asking the trial court to disqualify [De Luna]. Once there was
reasonable time to investigate the extent of [De Luna's] involvement in her case, [Ruiz]-in just six days-supplemented her initial motion to satisfy her burden to establish the disqualification of the entire firm representing [the real parties].(Internal citations omitted). Ruiz thus alleges that the additional evidence in support of her supplemental motion was necessary to meet her burden of proof and establish that De Luna's knowledge should be imputed to her new firm. She further states that the short timeframe was necessitated by the case's existing trial schedule and Ruiz's "eleventh-hour designation of new counsel." Ruiz asserts that the "time was necessary, and it was not gamesmanship . . . to ensure she met her burden under the law." In terms of participating in the pretrial hearings held on January 24 and January 31, Ruiz contends that she cannot be faulted by "continuing to prepare for trial," and that if trial preparation constituted "a legitimate factor to determine waiver," she "would have been presented with a classic catch-22: either cease all work on the case despite the rapidly-approaching trial date, or hastily file a motion before all relevant facts were gathered and governing legal authority confirmed, risking waiver on appeal." Finally, Ruiz asserts that the real parties failed to offer any evidence that they would suffer prejudice if disqualification were granted, yet the irrebuttable presumption that De Luna shared confidential information regarding the case with her new firm give the real parties "an advantage with which [Ruiz] cannot compete," and that the resulting prejudice to Ruiz "would be irreparable."
The parties have not cited nor has our research uncovered any authority finding waiver on the basis of a six-day delay in filing a motion for disqualification. The real parties allege that Ruiz's conduct in participating in a pretrial hearing on January 24, 2023 (at which the trial court granted De Luna's motion to withdraw), and in appearing and participating in the pretrial hearing on January 31, 2023 (at which Ruiz presented her supplemental motion for disqualification but before the trial court issued its ruling), indicates that Ruiz was using disqualification as a dilatory tactic. The real parties also assail Ruiz's decision to seek disqualification "on the eve of trial" immediately before the trial date of February 6, 2023. The real parties' arguments evoke concerns regarding the strategic use of attorney disqualification; however, these arguments lose their force when considering the timeline and events involved. De Leon first appeared in the case two weeks before trial, so the filing of the supplemental motion for disqualification "on the eve of trial" is not indicative of a dilatory intent. Accordingly, we conclude that Ruiz did not waive her motion to disqualify. We sustain Ruiz's first issue.
IV. Sanctions
By her second issue, Ruiz argues that the trial court abused its discretion in granting the real parties' second motion for discovery sanctions and denying her motion for reconsideration because: (a) the sanctions deprived Ruiz of the expert testimony necessary to establish her defense and, thus, amounted to death penalty sanctions under well-established law; (b) the trial court never considered lesser sanctions and offered no explanation for its ruling; and (c) the testimony excluded by the trial court's sanctions order was known to the real parties and would not have unfairly surprised or prejudiced them.
We first address whether the trial court's order barring Drs. Ramos and Walters "from either testifying or giving any testimony in this matter" constitutes a death penalty sanction. A death penalty sanction is any sanction that adjudicates a claim or defense and precludes the presentation of the claim or defense on the merits. Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex. 1992) (orig. proceeding). Any sanction that is case determinative may constitute a death penalty sanction. GTE Commc'ns Sys. Corp., 856 S.W.2d at 732; see Duncan v. Park Place Motorcars, Ltd., 605 S.W.3d 479, 487 (Tex. App.-Dallas 2020, pet. withdrawn). "Although death-penalty sanctions most often are thought of in the context of striking pleadings or rendering a default judgment, any sanctions that are case determinative may constitute death-penalty sanctions, including those that exclude essential evidence." In re First Transit Inc., 499 S.W.3d 584, 592 (Tex. App.-Houston [14th Dist.] 2016, orig. proceeding [mand. denied]) (collecting cases); see In re RH White Oak, LLC, 442 S.W.3d 492, 501 (Tex. App.-Houston [14th Dist.] 2014, orig. proceeding); In re Alere Women's & Children's Health, LLC, 357 S.W.3d 809, 814- 15 (Tex. App.-Houston [14th Dist.] 2011, orig. proceeding).
Given that the trial court's order states that Drs. Ramos and Walters "are . . . struck and barred from either testifying or giving any testimony in this matter," we understand the order to extend to deposition or trial testimony and also testimony provided in the form of affidavits or counter-affidavits.
Here, the only issue remaining in this case concerns damages, and Ruiz's experts were designated to testify that the medical treatment that Huerta, E.H., and A.H. received after the motor vehicle accident was not all medically necessary or reasonable, nor were their associated costs. This is a complex issue where expert testimony would be helpful or essential to Ruiz's defense, and the exclusion of Ruiz's retained experts on this issue will effectively hamstring the presentation of her defense. We recognize that Ruiz would still be able to cross-examine the real parties' experts regarding their evaluations, but the fact that Ruiz "could present different, possibly less compelling, arguments does not minimize the crippling effect the trial court's order would have on [her] ability to challenge the reasonableness of [the real parties'] medical expenses, a central component of [their] claimed damages." In re Allstate Indem. Co., 622 S.W.3d at 883. Thus, under the facts and circumstances of this case, the exclusion of these experts and their testimony equates to a death penalty sanction. We review it accordingly.
We review a sanctions order for abuse of discretion. Brewer v. Lennox Hearth Prods., LLC, 601 S.W.3d 704, 717 (Tex. 2020); Altesse Healthcare Sols., Inc. v. Wilson, 540 S.W.3d 570, 573 (Tex. 2018) (per curiam). The rules governing discovery sanctions specify that such sanctions must be just. Tex.R.Civ.P. 215.2(b)(2); see Altesse Healthcare Sols., Inc., 540 S.W.3d at 575; TransAm. Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991) (orig. proceeding). When determining whether a trial court's imposition of sanctions is just, an appellate court considers whether there is a "direct relationship" between the abusive conduct and the sanction imposed and whether the sanction is excessive. In re Nat'l Lloyds Ins., 507 S.W.3d 219, 226 (Tex. 2016) (orig. proceeding) (per curiam); TransAm. Nat. Gas Corp., 811 S.W.2d at 917. In this regard, a trial court is required to consider the availability of less stringent sanctions before imposing death penalty sanctions. Altesse Healthcare Sols., Inc., 540 S.W.3d at 576; Cire v. Cummings, 134 S.W.3d 835, 840 (Tex. 2004); TransAm. Nat. Gas Corp., 811 S.W.2d at 917. Under this standard, "the trial court must analyze the available sanctions and offer a reasoned explanation as to the appropriateness of the sanction imposed." Cire, 134 S.W.3d at 840. "Case 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." GTE Commc'ns Sys. Corp., 856 S.W.2d at 729; see Cire, 134 S.W.3d at 842.
As a threshold matter, we note that the record indicates that the real parties failed to secure a ruling on their initial motion to compel discovery against Ruiz and proceeded to litigate this case to a mistrial in the absence of the requested discovery. And, while counsel for Ruiz asserted the belief that "the [d]iscovery window was closed" following the mistrial, Ruiz nevertheless provided supplemental discovery responses during this period. While we appreciate the trial court's frustration with such an anomalous discovery process, we conclude that the record fails to support the sanction imposed.
Ruiz alleges that she designated Drs. Ramos and Walters as experts and provided the subject matter on which they were expected to testify, and that she produced: (1) these experts' CVs, fee schedules, and case lists; (2) the counter-affidavits of Dr. Walters "which contained his opinions concerning the necessity and cost of medical services provided"; (3) the expert report of Dr. Ramos; and (4) Dr. Ramos's reference materials. The real parties contend that Ruiz failed to provide an expert report for Dr. Walters, and that Ruiz cannot rely on Dr. Walters's counter-affidavits to substitute for a report. They further assert that Dr. Ramos's expert report is insufficient insofar as it fails to address all of Huerta's alleged injuries. In this regard, the real parties' request for production number eleven sought the provision of "reports" with regard to testifying experts. However, the record before this Court does not indicate that the real parties ever filed a motion to require either Dr. Walters or Dr. Ramos to reduce their opinions to tangible form in order to produce an expert report. See Tex. R. Civ. P. 195.5(b) ("If the discoverable factual observations, tests, supporting data, calculations, photographs, or opinions of an expert have not been recorded and reduced to tangible form, the court may order these matters reduced to tangible form and produced in addition to the deposition."); see id. R. 195.3 (distinguishing the deposition schedules for experts who have provided a report and those who have not). Further, while the real parties assert that Ruiz failed to produce her experts' billing records, the record does not indicate that the real parties asked for such documentation; rather, request for production number thirty-eight explicitly requests the provision of "fee agreement[s]." We cannot fault Ruiz for failing to produce discovery which was not requested. Concomitantly, however, we note that the "case lists" provided by Ruiz for Drs. Walters and Ramos only include the dates and case names for the trials and depositions in which these experts testified. See id. R. 195.5(a)(D) (discussing the provision of "a list of all other cases in which, during the previous four years, the expert testified as an expert at trial or by deposition"). The lists lack any indicia regarding the court, cause number, or geographic location where these experts provided testimony. While Ruiz's counsel alleged that they could not be required to compel their experts to produce detailed lists, the trial court certainly acted in its discretion to determine otherwise.
That said, we do not perceive a direct relationship between any alleged abusive conduct and the death penalty sanction imposed. See In re Nat'l Lloyds Ins., 507 S.W.3d at 226; TransAm. Nat. Gas Corp., 811 S.W.2d at 917. Further the record is devoid of any indication that the trial court considered lesser sanctions, imposed any other sanctions, or offered any reasoned explanation for the sanction imposed. See Altesse Healthcare Sols., Inc., 540 S.W.3d at 576; Cire, 134 S.W.3d at 840; TransAm. Nat. Gas Corp., 811 S.W.2d at 917. We conclude that the trial court abused its discretion in awarding death penalty sanctions. Accordingly, we sustain Ruiz's second issue.
IV. Conclusion
The Court, having examined and fully considered the petition for writ of mandamus, the response, the reply, and the applicable law, is of the opinion that Ruiz has met her burden to obtain relief. Accordingly, we lift the stay previously imposed in this case. See Tex. R. App. P. 52.10(b) ("Unless vacated or modified, an order granting temporary relief is effective until the case is finally decided."). We conditionally grant Ruiz's petition for writ of mandamus, and we direct the trial court to vacate its order denying Ruiz's supplemental motion for disqualification and to enter an appropriate order granting such motion. We further direct the trial court to vacate its order granting death penalty sanctions. Our writ will issue only if the trial court fails to promptly comply.