Opinion filed April 16, 2009




                                           In The


   Eleventh Court of Appeals
                                        ____________

                                   No. 11-07-00246-CV
                                       __________

                MIN RONG ZHENG AND FA WU MA, Appellants

                                              V.

BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, L.L.C., ET AL,
                       Appellees


                           On Appeal from the 358th District Court

                                    Ector County, Texas

                               Trial Court Cause No. D-120,041


                                        OPINION

       This is an appeal from an order imposing death penalty sanctions for discovery-related
abuses. Plaintiffs Min Rong Zheng and Fa Wu Ma brought suit against Bridgestone Firestone North
American Tire, L.L.C.; Honda Motor Company, Ltd.; American Honda Motor Co., Inc.; Isuzu
Motors America, Inc.; and Chui Fong Chan for damages related to a car accident. Upon a joint
motion by Bridgestone, Honda, American Honda, and Isuzu, the trial court entered an order
dismissing with prejudice all of the plaintiffs’ claims against all defendants.1 We reverse and
remand.
          On appeal, the plaintiffs present six issues challenging the dismissal order. In the first issue,
the plaintiffs assert that the trial court erred in signing an amended order without holding a hearing.
In the second issue, the plaintiffs question whether the amended order is supported by a motion and
evidence. In the third, fourth, fifth, and sixth issues, the plaintiffs argue that the trial court abused
its discretion in dismissing the plaintiffs’ claims as a discovery sanction for failing to appear at a
deposition, in granting the motion to dismiss without the required certificate of conference, in
ordering the death penalty, and in dismissing the plaintiffs’ claims even though the notices of
deposition did not comply with the Texas Rules of Civil Procedure.
          With respect to the first issue, the record shows that, prior to imposing sanctions, the trial
court held a hearing on the joint motion to dismiss on May 3, 2007.2 Plaintiffs’ counsel was present
at the hearing and participated in the proceeding. Although the trial court initially signed an order
on that day dismissing the plaintiffs’ claims against Bridgestone, the trial court subsequently signed
the amended order at issue in this appeal on May 14, 2007. The amended order related to the hearing
that was held on May 3. There was no need to hold another hearing. The first issue is overruled.
          Discovery between the parties in this case was contentious. When the discovery process is
abused, a trial court may order sanctions as provided for by TEX . R. CIV . P. 215. Such sanctions are
discretionary and are reviewed on appeal for an abuse of discretion. Am. Flood Research, Inc. v.
Jones, 192 S.W.3d 581, 583 (Tex. 2006). A trial court abuses its discretion when it acts without
reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d
238, 241-42 (Tex. 1985). When imposing sanctions for discovery abuses, a trial court must look to
the Texas Rules of Civil Procedure for guiding rules and principles. Id. at 242.




          1
            We note that Chan did not file a motion to dismiss but that the claims against Chan were nonetheless disposed of by the
trial court’s sanctions. The trial court’s order specifically dismissed “all Plaintiffs’ claims against all Defendants” and ordered that
“Plaintiffs TAKE NOTHING with this lawsuit. This Order finally disposes of all parties and all claims and is appealable.” Thus,
we conclude that the order is final and appealable.
          2
           We note that a separate motion to compel and dismiss, which was based upon the plaintiffs’ allegedly inadequate responses
to discovery requests, had been filed by Bridgestone and was pending at the time of the hearing. The record from the hearing shows,
however, that the May 3 hearing related only to the joint motion to dismiss and not to any other pending motions.

                                                                   2
         Rule 215.2 requires that the sanction imposed be “just.” See TransAmerican Natural Gas
Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991) (applying a former, similar version of Rule 215
that also required the sanction to be “just”). The court in TransAmerican set forth the following
standards as setting the bounds for permissible discretionary sanctions under Rule 215.
                  In our view, whether an imposition of sanctions is just is measured by two
         standards. First, a direct relationship must exist between the offensive conduct and
         the sanction imposed. This means that a just sanction must be directed against the
         abuse and toward remedying the prejudice caused the innocent party. It also means
         that the sanction should be visited upon the offender. The trial court must at least
         attempt to determine whether the offensive conduct is attributable to counsel only,
         or to 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 counsel’s 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. The point
         is, the sanctions the trial court imposes must relate directly to the abuse found.

                Second, just sanctions must not be excessive. The punishment should fit the
         crime. A sanction imposed for discovery abuse should be no more severe than
         necessary to satisfy its legitimate purposes. It follows that courts must consider the
         availability of less stringent sanctions and whether such lesser sanctions would fully
         promote compliance.
Id. at 917. Death penalty sanctions should not be used to deny a trial on the merits unless the guilty
party’s conduct is so bad that it “justifies a presumption that its claims or defenses lack merit.”
Hamill v. Level, 917 S.W.2d 15, 16 (Tex. 1996); Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 850
(Tex. 1992); TransAmerican, 811 S.W.2d at 918.
         In reviewing an order imposing sanctions, we must independently review the entire record
and are not bound by the trial court’s findings of fact and conclusions of law. Am. Flood Research,
192 S.W.3d at 583. The record in this case shows that, prior to dismissing the plaintiffs’ claims, the
trial court had entered two orders compelling discovery. Neither order related to depositions. The
first order required the plaintiffs to fully respond to specific interrogatories and to produce all
relevant medical reports. In the second order, the trial court acted on the plaintiffs’ motion to compel
against Bridgestone and again ordered the plaintiffs to provide the information referenced in its first
order.


                                                   3
          In its second attempt to depose the plaintiffs, Bridgestone scheduled the depositions for
March 28 and 29, 2007. The record shows that the deposition notices were served by Bridgestone’s
attorney upon plaintiffs’ counsel on February 27, 2007, at 4:46 p.m. even though (1) plaintiffs’
counsel had notified Bridgestone’s attorney on February 21, 2007, that the plaintiffs would be
available for deposition on April 5 and 6, 2007, and (2) in response to a conversation with the
attorney for Honda, American Honda, and Isuzu regarding changing the deposition date, plaintiffs’
counsel had notified Bridgestone’s attorney on February 27 prior to 2:52 p.m. that the plaintiffs
would be present for the deposition on April 12 and 13, 2007. In a letter attached to the notices sent
later that day, Bridgestone’s attorney stated that the dates given by plaintiffs’ counsel were “not
acceptable.” On March 20, 2007, plaintiffs’ counsel notified opposing counsel that “we will not be
able to appear.” In response, by letter dated March 20, 2007, Bridgestone’s attorney denied having
received the proposed April dates3 and informed plaintiffs’ counsel that he would seek sanctions if
the plaintiffs failed to attend their depositions on March 28.
          On March 23, plaintiffs’ counsel filed a motion to quash, asserting that the date conflicted
with his schedule. Because plaintiffs’ counsel failed to file the motion to quash within three business
days after service of the notice of depositions, the depositions were not automatically stayed.
TEX . R. CIV . P. 199.4. Plaintiffs’ counsel failed to obtain a hearing on the motion to quash prior to
the dates scheduled for the depositions. Neither the plaintiffs nor their counsel appeared at the
scheduled depositions. The record shows that plaintiffs’ counsel was scheduled for trial in Harris
County during the week of March 26, 2007; the scheduling order dated November 30, 2006, from
a trial court in Harris County was attached to the plaintiffs’ supplemental response to the defendants’
motion to dismiss in this case.
          At the May 3 hearing, the trial court had “difficulty reconciling” the argument of plaintiffs’
counsel “with the facts” and granted the motion to dismiss. However, nothing in the record suggests
that any discovery abuses were attributable to the plaintiffs themselves. The record from the May 3
hearing does not reveal that the plaintiffs were present. In fact, nothing in the record indicates that


          3
           We note that, although Bridgestone’s attorney subsequently denied being apprised of the proposed dates, the clerk’s record
contains fax confirmations from plaintiffs’ counsel to Bridgestone’s attorney regarding the proposed April dates. Furthermore,
Bridgestone’s attorney stated in a letter attached to the deposition notices that the dates proposed by plaintiffs’ counsel were “not
acceptable.”

                                                                 4
the plaintiffs themselves were even aware of the deposition notices or that the failure to attend was
in any way their fault. Furthermore, the record does not indicate that the trial court attempted to
determine whether the offensive conduct was attributable to the plaintiffs or only to plaintiffs’
counsel. The trial court made no findings as to the fault of the plaintiffs, just their counsel. Under
these circumstances, the death penalty sanction was not just or appropriate and constituted an abuse
of discretion; the trial court should have considered lesser sanctions. TransAmerican, 811 S.W.2d
at 917-19; Leon’s Fine Foods of Tex., Inc. v. Merit Inv. Partners, L.P., 160 S.W.3d 148 (Tex.
App.—Eastland 2005, no pet.).
       Consequently, we hold that the trial court abused its discretion in dismissing the plaintiffs’
claims. The third and fifth issues are sustained. The remaining issues are not dispositive and need
not be addressed. TEX . R. APP . P. 47.1.
       The trial court’s order dismissing the plaintiffs’ claims with prejudice is reversed, and the
cause is remanded for further proceedings.




                                                              JIM R. WRIGHT
                                                              CHIEF JUSTICE


April 16, 2009
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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