Opinion
No. 11-06-00129-CV
March 13, 2008, Decided. March 13, 2008, Opinion Filed
MEMORANDUM OPINION
Guadalupe Almanza sued Pyramid Health Care Corporation d/b/a Abilene Convalescent Center, Senior Living Properties, L.L.C., and Wyvonne Roysdon for injuries received while she was under appellants' care. After a bench trial, the district court entered judgment in favor of Almanza. The parties subsequently settled all issues and entered into an agreed judgment. The trial court accepted the agreed judgment in all but one respect: the trial court refused to vacate its prior sanction order. Appellants appeal the award to Almanza of $ 30,000 as sanctions for pretrial discovery abuse.
A trial court is authorized to impose an appropriate sanction when a party abuses the discovery process. Tex. R. Civ. P. 215.3. The sanction imposed must be just under the circumstances. TEX. R. CIV. P. 215.2(b); TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991).
Appellants present two issues for review. In their first issue, appellants contend that the trial court erred in awarding sanctions because Almanza waived any claim to discovery sanctions because her motion was not ruled on until after trial. We agree.
The record in this case shows that, during the depositions of Almanza's family members, Almanza's attorney, Burt Burnett, instructed the witnesses not to answer numerous questions. Some of these questions inquired about the witnesses' contentions regarding what appellants did or failed to do with respect to Almanza. Some asked, not about contentions, but about specific facts known by the witnesses or things observed by the witnesses with respect to Almanza and appellants' care of Almanza. Other questions concerned religious affiliation. TEX. R. CIV. P. 199.5(f) permits an attorney to instruct a witness not to answer a deposition question "only if necessary to preserve a privilege, comply with a court order or these rules, protect a witness from an abusive question or one for which any answer would be misleading, or secure a ruling pursuant to paragraph (g)." Appellants suspended the depositions pursuant to TEX. R. CIV. P. 199.5(g) in order to obtain a ruling from the judge on the various questions that Burnett had instructed the witnesses not to answer. Burnett suggested that they call the trial court and obtain an immediate ruling by phone. Appellants declined to do so -- desiring instead to suspend the deposition, as authorized by Rule 199.5(g), to obtain a transcript of all of the questions that Burnett instructed the witnesses not to answer so that all of the relevant information would be before the trial court for a ruling.
The record shows that Almanza was incapacitated, suffering from Alzheimer's and dementia, and could not be produced for a deposition. Therefore, appellants attempted to discover Almanza's contentions through her family members.
Appellants filed a motion to compel the deposition answers, and Almanza filed a motion for sanctions. In the motion for sanctions, Almanza contended that appellants resisted and abused the discovery process by terminating the depositions, refusing to depose the remaining Almanza family members, and refusing to participate in a telephonic hearing. The trial court held a hearing on the sanctions issue and chided appellants for refusing to call the trial court to obtain a ruling by phone. The trial court denied appellants' motion to compel but did not rule on Almanza's motion for sanctions at that time. Instead, as suggested by Burnett, the trial court carried the sanctions issue through trial. Subsequent to the trial on the merits, the trial court granted Almanza's motion for sanctions and entered a letter ruling imposing sanctions against appellants for "resisting discovery."
As stated by the Texas Supreme Court, "[T]he failure to obtain a pretrial ruling on discovery disputes that exist before commencement of trial constitutes a waiver of any claim for sanctions based on that conduct." Remington Arms Co. v. Caldwell, 850 S.W.2d 167, 170 (Tex. 1993); see also Meyer v. Cathey, 167 S.W.3d 327, 332-33 (Tex. 2005). The discovery disputes at issue in this case existed and were revealed before commencement of the trial, and Almanza was aware of the alleged discovery abuse prior to trial. Consequently, we hold that Almanza waived any claim to sanctions for the alleged discovery abuse in this case by failing to obtain a ruling before the trial commenced. Appellants' first issue is sustained. Pursuant to TEX. R. APP. P. 47.1, we need not address appellants' second issue because their first issue is dispositive of the appeal.
The trial court's order awarding sanctions to Almanza is reversed, and we render judgment that Almanza take nothing on her claim for sanctions.
JIM R. WRIGHT
CHIEF JUSTICE
March 13, 2008