Opinion
No. 06-16-00043-CV
04-19-2017
IN THE ESTATE OF JORGE ALEJANDRO PALMEROS, DECEASED
On Appeal from the County Court Hopkins County, Texas
Trial Court No. P15-13793 Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION
This is an appeal of an order assessing the Law Office of Domingo Garcia, P.C., with the obligation to pay $1,000.00 to attorney George L. Preston.
The order arose in the County Court of Hopkins County probate of the estate of Jorge Alejandro Palmeros, deceased. Previously, Preston had represented Brandi Solis (the mother of the minor child who was the sole offspring of the decedent) in getting Solis appointed the independent administratrix of Palmeros' estate. After the issuance of letters of administration as requested, Paul R. Hornung, an attorney with the Garcia law firm, filed a motion to set aside the appointment and, in connection therewith, had obtained the issuance of a subpoena duces tecum for service on Preston. That subpoena duces tecum directed Preston to appear for his deposition and bring with him "[t]he complete file pertaining to [his] client Brandie [sic] Solis in the matter of Cause No. P15-13793 ; In The Estate of Jorge Alejandro Palmeros, Deceased, in the County Court of Hopkins County, Texas." The subpoena was sent via facsimile transmission to Preston.
The motion to set aside Solis' appointment was based upon the following: (1) the fact that Solis is the natural mother of Palmeros' sole child, a minor, (2) Palmeros' parental rights to that daughter had been terminated, (3) the Garcia firm apparently operated under the erroneous belief that when a person's parental rights are terminated, the right of the child to inherit from that terminated parent is likewise terminated, and (4) the Garcia firm had signed up to represent Palmeros' mother and sibling in both the probate proceeding and personal injury litigation over Palmeros' death.
Preston responded by filing a motion to quash the subpoena and for sanctions against Hornung and the law firm for whom he worked. In his motion, Preston noted that Hornung either knew or should have known (1) that the communications between Solis and Preston and the content of Preston's file were protected by the attorney/client privilege and (2) that all of the information which Hornung was entitled to review regarding the matter had previously been made a part of the court's file in the probate action.
After a hearing, the trial court ruled on June 7, 2016, in favor of Preston, finding that the discovery request was improper and had created undue hardship on Preston, awarding Preston $1,000.00 against the Law Office of Domingo Garcia., P.C., to be paid within thirty days. The Law Office of Domingo Garcia., P.C., has appealed.
I. Points of Error Raised by Appellant
In its initial brief, the Garcia firm claimed, in essence, that it had not complied with the requirements of service of a subpoena in two respects. First, it says that the only service of the subpoena on Preston was by electronic transmission (as opposed to the requirement in Rule 176.5 of the Texas Rules of Civil Procedure that it be personally served) and that the subpoena notice was not accompanied by the $10.00 "witness fee" that is required pursuant to Section 22.001(a) of the Texas Civil Practice and Remedies Code. Accordingly, the Garcia firm argued, Preston was not required by law to do anything at all and could have ignored the subpoena that had been delivered to him.
In its reply brief, the Garcia firm adds that it was never found by the court to have been sanctioned and that the trial court was simply attempting to get Preston paid for unpaid fees due to him in the probate of Palmeros' estate.
II. Content of Reply Brief
The appellant's brief raises neither the issue of the lack of a specific finding that the Garcia firm was not sanctioned nor that the trial court was attempting to seek reimbursement for Preston of fees due to him in the probate of Palmeros' estate. We will not address issues newly raised in a reply brief. See Bankhead v. Maddox, 135 S.W.3d 162, 163-64 (Tex. App.—Tyler 2004, no pet.); Green Light Co. v. Moore, 485 S.W.2d 360, 364 (Tex. Civ. App.—Houston [14th Dist.] 1972, no writ). Accordingly, we will not respond to those additional points attempted to be raised by the Garcia firm in what it termed its "Reply Brief."
III. Standard of Review
Although the order quashing the subpoena and awarding Preston attorney fees does not specifically set out the source for the trial court's authority, such actions are authorized pursuant to Rule 215.3 of the Texas Rules of Civil Procedure, which states,
If the court finds a party is abusing the discovery process in seeking, making[,] or resisting discovery or if the court finds that any interrogatory or request for inspection or production is unreasonably frivolous, oppressive, or harassing, or that a response or answer is unreasonably frivolous or made for purposes of delay, then the court in which the action is pending may, after notice and hearing, impose any appropriate sanction authorized by paragraphs (1), (2), (3), (4), (5), and (8) of Rule 215.2(b). Such order of sanction shall be subject to review on appeal from the final judgment.TEX. R. CIV. P. 215.3.
The action by the trial court in awarding Preston fees under these circumstances amounts to the assessment of a sanction and, under the circumstances of this case, is an action of the trial court which would be permitted pursuant to Rule 215.2(b)(2). See TEX. R. CIV. P. 215.2(b)(2). The imposition of sanctions by a trial court is reviewed under an abuse of discretion standard. Nath v. Tex. Children's Hosp., 446 S.W.3d 355, 361 (Tex. 2014).
A trial court abuses its discretion by (1) acting arbitrarily and unreasonably, without reference to any guiding rules or principles, or (2) misapplying the law to the established facts of the case. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
The Texas Supreme Court adds an additional consideration when sanctions are being reviewed, that being of the reasonableness of the sanctions that are imposed. "A sanction imposed for discovery abuse should be no more severe than necessary to satisfy its legitimate purposes." TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991).
IV. Imposition of Sanctions in this Case
Here, the scope of the subpoena request issued at the instance of the Gracia firm was extremely broad in requesting Preston's entire file relating to his representation of Solis.
The subpoena purported to direct Preston to produce himself and the following at a deposition to take place four days (two of which were Saturday and Sunday) later: "The complete file pertaining to your client Brandie [sic] Solis in the matter of Cause No. P15-13793 ; In The Estate of Jorge Alejandro Palmeros, Deceased, in the County Court of Hopkins County, Texas."
In Texas, the attorney-client privilege is one which has been characterized as "sacrosanct" and one which has been "long recognized and zealously protected in our Anglo-American jurisprudence." Neugebauer v. State, 974 S.W.2d 374, 377 (Tex. App.—Amarillo 1998, writ ref'd). Even a novice attorney should well comprehend the broad protections of that privilege. Stated differently, any attorney knew (or should have known) that the subpoena exceeded the bounds of discovery by requesting matters that were subject to the attorney-client privilege.
In its brief, the Garcia firm argues that there were defects in the service of the subpoena which would have prevented Preston from being forced to respond. While it is true that the obvious faults in the service of the subpoena would have provided Preston with additional fuel to combat the subpoena, those oversights, omissions, and errors would only have prevented Preston from being held in contempt (with the possibility of being fined, confined, or both as a consequence) for a failure to honor it. See TEX. R. CIV. P. 176.8. Despite the obvious errors in the service of the subpoena and the failure of the subpoena to be accompanied by the statutory $10.00 appearance fee, Preston would have been unwise to simply ignore it. Rather, Preston acted judiciously in preparing a motion to quash the same.
In other words, the Garcia firm attempts to rely on its lack of expertise in serving the subpoena as a defense.
When one considers the reasonableness of sanctions that were imposed, Preston testified as to the amount of time required of him to protect himself and his client from the dictates of the subpoena that was issued. Hornung, appearing at the hearing for the Garcia firm, listened to this testimony and challenged neither Preston's testimony regarding the amount of time that he said was necessarily expended nor the hourly fee recited by Preston for such work. The trial court awarded Preston precisely the amount he requested in his testimony.
The Garcia firm requested no findings of fact in this case. When there has been no request for findings of fact or conclusions of law, the judgment of a trial court must be upheld on any legal theory that finds support in the evidence. Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984).
V. Conclusion
We find (1) that the subpoena issued by the Garcia firm far exceeded the permissible bounds of discovery, (2) that the issuance of the subpoena had occasioned an undue burden or expense on Preston, (3) that Preston necessarily expended $1,000.00 in complying with Rule 176.6(e) of the Texas Rules of Civil Procedure's method for obtaining relief from the overburdensome subpoena, (4) that the trial court was authorized by Rule 215.3 of the Texas Rules of Civil Procedure to declare sanctions against the Garcia law firm for discovery abuse, and (4) that the trial court did not abuse its discretion in granting Preston the requested fees.
We affirm the action of the trial court.
Bailey C. Moseley
Justice Date Submitted: March 16, 2017
Date Decided: April 19, 2017