                              NO. 04-14-00491-CV




                         TEXAS COURT OF APPEALS
                              FOURTH DISTRICT
                           SAN ANTONIO, TEXAS




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                                                          CO
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                WILLIAM M. COLLINS AND PATRICIA COLLINS
                                  Appellants
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                                      vs.



                           DR. OLIVER WILLIAMS
                                   Appellee




   APPELLANTS FIRST VERIFIED MOTION FOR REHEARING AND EN
                         BANC RECONSIDERATION
                        ORAL ARGUMENT REQUESTED




James R. Chapman, Jr.
P. O. Box 841
Fredericksburg, Texas 78624
(830)997-3269
No Fax
Cell (281) 734-8181


                        ATTORNEY FOR APPELLANTS
                WILLIAM M. COLLINS AND PATRICIA COLLINS
               APPELLANTS VERIFIED MOTION FOR REHEARING
                     AND EN BANC RECONSIDERATION
                                     (Oral Argument Requested)


                                             PREAMBLE

       Appellants William and Patricia Collins requests the Court to reconsider its decision in

this case before the en bane court because (1) the Court has declined to follow the precedent of

the Texas Supreme Court, or (2) has declined to even apply its own precedent in this case

regarding imposing death penalty sanctions. The Court has approved case dispositive sanctions

against a litigant for a minor administrative error by the attorney, which was substantially and

substantively remedied before the hearing on the sanctions. Such disposition is contrary to the

Texas Rules of Civil Procedure, Texas Supreme Court case law, equity, and justice, and should be

reconsidered and withdrawn, and the case remanded for further proceedings in the trial court. The

sanctions imposed against Plaintiff are excessive, do not bear a direct relationship to the error,

violate the constitutional due process litigation rights of Plaintiff, do not contain any reasonable

explanation of why death penalty sanctions are the only available remedy, and clearly reflect an

egregious abuse of discretion by the trial court. The Texas Supreme Court has consistently

held that absent flagrant bad faith or callous disregard for the rules, due process bars

merits-preclusive sanctions. This case is completely devoid of any conduct by Appellant's

attorney that even remotely rises to the level of flagrant bad faith or callous disregard for the

rules. Accordingly Appellants would show:

        1. Appellants are William and Patricia Collins. Respondent is Dr. Oliver Williams.

        2. The Court issued an opinion on May 6,2015. Appellants asked for and received

permission to file this motion on or before June 20,2015.

        3. The Court's Opinion affirmed the decision of the trial court. Such opinion is clearly

erroneous, and should be amended, withdrawn, and an opinion remanding this case for further

proceedings in the Trial Court should be ordered.

        4. The Houston 14* Court of Appeals has considered this issue in In re RH White Oak,
LLC. 442 S. W. 3d 492,501 (Tex.App.- Houston (14th Dist.) 2014). The Houston Court reflected
that a trial court clearly "abuses its discretion" if it reaches a decision so arbitrary and

unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to analyze the

law correctly or apply the law correctly to the facts.. A trial court may not impose sanctions that
are more severe than necessary to satisfy legitimate purposes. Any sanction must be "just"; that

is: (1) a direct relationship must exist between the offensive conduct and sanction imposed; and

(2) a sanction must not be excessive. Id P. 501. Both of these standards for "justness" have been

breached in the Trial Court's decision, and in this Court's affirmation of the Trial Court's actions.

       5. A direct relationship exists, for purposes of determining whether a sanction is "just", if

a trial court directs the sanction against the abuse found and it remedies the prejudice caused to

the innocent party; this means that the trial court must also at least, attempt to determine whether

the offensive conduct is attributable to counsel only, or to the party only, or to both. Id. P 501. In

this case, the Court has approved death penalty sanctions against the client for a minor

administrative error of counsel that was remedied before the hearing on the motion to strike

pleadings. No significant, relevant or material evidence of any actual material harm to

Defendant's ability to present its defenses was presented. Plaintiffs counsel made a minor error,

which was concealed through a fortuitous combination of circumstances, remedied when realized,

and the Trial Court denied the constitutional due process litigation rights of Appellant, and this

Court's initial decision approved that decision.

       6. Generally, before a sanction that prevents a decision on the merits is justified, lesser

sanctions must first be tested to determine their efficacy; and, in all but the most exceptional

cases, the trial court must actually test the lesser sanctions before striking pleadings. Id, P. 502.

(emphasis added). Nothing in this case places the conduct of Counsel in an "exceptional"

category. There was no repeated abuse; no ignoring Court orders, no conduct other than a failure

to achieve perfection in initial compliance. The Court's reference to the prior case is irrelevant

under the express precedent of this Court, and the attorney's fees penalties were imposed for

filing a motion which was essentially granted. Plaintiffs did not want to have to produce two

identical sets of discovery; filed a motion for protective order, it was granted, and the duplicate

discovery eliminated. Why attorney's fees sanctions are legitimate and just for relief requested
and granted is beyond the understanding of Appellant's counsel. Imposing sanctions for

zealously representing a client amounts to nothing more than punishment for representing a

client, which is neither appropriate, just, or necessary to achieve compliance with the rules of

civil procedure pertaining to discovery.

       7. In all cases, the record must reflect that the trial court considered the availability of

appropriate lesser sanctions and must contain an explanation of the appropriateness of the
sanction imposed. The trial court must analyze the available sanction and offer a reasoned

explanation as to the appropriateness of the sanction imposed. Id P 502.

        8. A sanction must be directed to the abuse found and it remedies the prejudice caused to

the innocent party. Id. 501. Counsel cannot remember any evidence of any real prejudice to

Defendant other than inconvenience. No relevant evidence was presented which in any way

could be interpreted as prejudicing the ability of Defendant to present its case.

        9. This Court has specifically considered the issues in this case just this last year. In In

Re Estate ofPerez- Muzza, 446 S. W. 3d 415 (Tex App.-San Antonio 2014), this Court

considered the issues of abuse of discretion in applying sanctions against a party, and found that a

Trial Court abused its discretion in dismissing a relative's action with prejudice as sanction for

allegedly false or misleading statements made by relative in a will contest.

        10. As noted in that opinion, a trial court's inherent power to impose sanctions is limited

to the extent necessary to deter, alleviate, and counteract bad faith abuse of the judicial process,

such as any significant interference with the traditional core functions of the court, (citing cases).

Id P 424. This case is absolutely devoid of any evidence of bad faith abuse, nor is there any

allegation of interference with the traditional core functions of the Court. Yet a litigant innocent

of any mistake is penalized with the maximum sanctions available to a Trial Court. That is

clearly an abuse of discretion.

        11. A sanction is not excessive when it is no more severe than necessary to satisfy its

legitimate purposes; as part of this inquiry, the trial court must consider the availability of less

stringent sanctions, and in all but the most exceptional cases, actually test the lesser sanctions

before imposing them. Id P. 424, Cire v. Cummings, 134 W.W.3d 835, 841 (Tex. 2004). The

imposition of sanctions against a party for a minor administrative error of counsel violates these

principles.

        12. Perez-Muzza also specifically addressed the Constitutional issues present in this case.

Due process concerns are implicated when the trial court dismisses a party's claim based on

conduct during discovery rather than on the claim's merits. U. S. C. A. Const Amend. 14. To

comport with due process, a death-penalty sanction of dismissal may not be assessed absent the

offending party's flagrant bad faith or callous disregard for the responsibilities of discovery under

the rules. U. S. C. A. Const. Amend. 14.     Further, a death-penalty sanction cannot be used to

adjudicate the merits of claims or defenses unless the offending party's conduct during discovery
justifies a presumption that its claims or defenses lack merit. Id. P. 424. No such conduct was

alleged or proved. There has been no claim that Plaintiffs claims lack merit.

        13. Even when the offending party engages in intentional and blatant discovery abuse,

consideration of less stringent sanctions is still required prior to imposition of death-penalty

sanctions. The record is completely devoid of any indication that the trial court considered a less

stringent sanction. A conclusory statement that no lesser sanction would be effective is not

sufficient to constitute the required analysis of available sanctions and the reasoned explanation

of the sanction's appropriateness. Id. P. 425-426. "Death Penalty Sanctions" are intended to be a

"remedy of last resort". Id P 424, Paradigm Oil, Inc., v. Retamco Operating, Inc., 372 S.W.3d

177,179 (Tex. 2012). There is no evidence here that Plaintiff engaged in "flagrant bad faith", or

"callous disregard for the responsibilities of discovery under the rules". Id P 425.

        14. The initial opinion of the Court in this case referenced the previous dismissal for want

of prosecution in approving the Trial Court's actions. In Perez-Muzza, this court specifically

addressed that exact circumstance and stated: "Although the trial court found that it had

previously dismissed the case on multiple occasion for want of prosecution, those dismissals were

not related to the offending conduct.". Same here. Making a minor administrative error in

delivery of discovery responses which was remedied prior to hearing hardly constitutes

intentional and blatant discovery abuse, and the Court's consideration of less stringent sanctions

is still required. See Perez-Muzza, Id P. 426. The Court clearly erred, and deviated from its own

precedent to even address or consider the prior dismissed case in approving the Trial Court's

sanctions in this case.

        15. In reviewing the standards applicable to this case, the Supreme Court of Texas has

issued a plethora of cases for reference and enunciation of the appropriate legal standards for

considering abuse of discretion under the facts and circumstances of this case. Starting with

Transamerica Natural Gas v. Powell, 811 S.W.2d 913 (Tex. 1991), followed up by Chrysler

Corp. v. Blackmon, 841 S.W.2d 844, (Tex. 1992), and further elucidated, expanded and clarified

in Cire v. Cummings, 134, S.W.3d 385 (Tex. 2004), and Paradigm Oil v. Retamco Operating,
Inc., 372 S.W.3d 177 (Tex. 2012), the Court has clearly made its standard known for imposing

death penalty sanctions.

16. The Texas Supreme Court has consistently held that absent flagrant bad faith or callous

disregard for the rules, due process bars merits-preclusive sanctions. The Court has applied
this rule to depositions (see TransAmerican Natural Gas Corp. v. Powell, 811 S. W. 2d. 913,918-

19 (Tex. 1991)); Interrogatories, (see Chrysler Corp v. Blackmon, 841 S. W. 2d 844, 846, 850

(Tex. 1992)); Requests for production, (see Id, at 849-50; GTE Communications Sys. Corp. v.

Tanner, 856 S. W. 2d. 725,729-30 (Tex 1993); and Requests for Disclosure, (see Spohn Hosp. v.

Mayer, 104 S. W. 3d. 878,883 (Tex. 2003_ (per curiam). Appellant's due process constitutional

rights have been violated, and this Court should withdraw it's prior opinion, and reverse and

remand this case for further proceedings in the Trial Court. This case revolves around requests

for production, and the case of Spohn Hosp. v. Mayer is clearly case dispositive. This Court's

prior opinion should be withdrawn, and the case reversed and remanded for further proceedings in

the Trial Court.

       WHEREFORE, premises considered, Appellants respectfully requests the Court to set this

motion for oral argument before the Court en bane, and upon reconsideration, to withdraw it's

prior opinion, and reverse and remand this case to the Trial Court for further proceedings.

Appellant prays for general relief.

                                             Respectfully submitted,                      ^_.



                                             Afaies R. Chapman, Jr., 04134700
                                             Attorney for Appellants
                                             P.O. Box 841
                                             Fredericksburg, Texas 78624
                                             (830) 997-3269 No Fax
                                             Cell (281) 734-8181


                                         VERIFICATION

STATE OF TEXAS
COUNTY OF GILLESPIE


       ON THIS DAY, personally appeared James R. Chapman, Jr., Attorney for Appellant, and
who, identified by me, the undersigned Notary Public by TDL, and personal knowledge, after
being duly sworn, deposed and said:


       "My name is James R. Chapman, Jr., and I am Attorney for Appellants in this suit. I have
read the above and foregoing document, and it is true and correct".



                                                     James R. Chapman, Jr
                                                     Affiant
       To certify which witness my hand and seal of office this I o     day of May, 2015.



                         HOLUE ANN BAKER              Notary Public
                 \ Notary Public. State of Texas
                 ■I    Mv Commission Expires
                        November 24, 2018



                                           CERTIFICATE OF SERVICE


       I certify a copy of this document was forwarded Certified Mail, Return Receipt Requested
on June 18,2015, to the following persons at the addresses shown, pursuant to the Texas Rules of
Appellate Procedure:




                                                   es R. Chapman, Jr.

Dr. Oliver Williams, Appellee
c/o Jeffrey D. Small
12451 Starcrest Drive, Ste 100
San Antonio, Texas 78216-2988
Tel: (210)496-0611
Fax: (210)579-1399
                                   NO. 04-14-00491-CV




                              TEXAS COURT OF APPEALS
                                    FOURTH DISTRICT
                                 SAN ANTONIO, TEXAS




                 WILLIAM M. COLLINS AND PATRICIA COLLINS
                                          Appellants


                                               vs.



                                 DR. OLIVER WILLIAMS
                                           Appellee




                                  COURT'S ORDER ON
    APPELLANTS FIRST VERIFIED MOTION FOR REHEARING AND EN
                   BANC RECONSIDERATION
                 ORAL ARGUMENT REQUESTED



       ON THIS DAY, the Court considered the above styled and titled motion.

        After due consideration, the Motion is GRANTED, and it is so ORDERED. The Court
will consider this case with oral argument before the Court en bane. The Clerk of the Court is
ordered to issue notice of hearing pursuant to the usual procedures of the Court.




SIGNED:
                                                     FOR THE COURT
