                                                                            ACCEPTED
                                                                        03-15-00384-CV
                                                                                6985264
                                                             THIRD COURT OF APPEALS
                                                                        AUSTIN, TEXAS
                                                                   9/18/2015 9:21:42 AM
                                                                      JEFFREY D. KYLE
                                                                                 CLERK
                        NO. 03-15-00384-CV
__________________________________________________________________
                                                    FILED IN
                                             3rd COURT OF APPEALS
              IN THE COURT OF APPEALS FOR THE AUSTIN, TEXAS
              THIRD JUDICIAL DISTRICT OF TEXAS
                                             9/18/2015 9:21:42 AM
                                               JEFFREY D. KYLE
                         Austin, Texas               Clerk
__________________________________________________________________

                CRYSTAL BINGHAM HERNANDEZ
                        APPELLANT

                                vs.

                        TIFFANY POLLEY
                           APPELLEE
_________________________________________________________________

            On Appeal from the County Court at Law No. 2
                     Tom Green County, Texas
            The Honorable Penny Roberts, Judge Presiding
_________________________________________________________________

                      APPELLANT’S BRIEF
_________________________________________________________________

                         RICK DEHOYOS
              LAW OFFICE OF RICK DEHOYOS PLLC
                           SBN 05644085
                      502 SOUTH IRVING
                  SAN ANGELO, TEXAS 76903
                         Tel: 325-658-8000
                         Fax: 325-227-6913
                 Email: rick@dehoyoslawfirm.com
                 ATTORNEY FOR APPELLANT

        APPELLANT DOES NOT REQUEST ORAL ARGUMENT
                                1
                                   I.
                  IDENTITIES OF PARTIES AND COUNSEL

     IDENTITIES OF PARTIES                IDENTITIES OF COUNSEL

Crystal Bingham Hernandez,            RICK DEHOYOS
Plaintiff, Appellant                  LAW OFFICE OF RICK
                                      DEHOYOS, PLLC
                                      SBN 05644085
                                      502 SOUTH IRVING
                                      SAN ANGELO, TEXAS 76903
                                      Tel: 325-658-8000
                                      Fax: 325-227-6913
                                      Email: rick@dehoyoslawfirm.com
                                      ATTORNEY FOR APPELLANT


Tiffany Polley                        KIRK D. WILLIS
Defendant, Appellee                   BENTON WILLIAMS
                                      THE WILLIS LAW GROUP
                                      SBN: 21648500
                                      10440 NORTH CENTRAL
                                      EXPRESSWAY STE 520
                                      DALLAS TEXAS, 75231
                                      Telephone: 214-736-9433
                                      Fax: 214-736-9994
                                      Email:
                                      service@thewillislawgroup.com
                                      ATTORNEY FOR APPELLEE
Judge Presiding                       Hon. Penny Roberts
                                      County Court at Law No. 2
                                      122 West Harris
                                      San Angelo, Texas 76903
                                      Tel: (325) 658-2495



                                  2
                                II.
                        TABLE OF CONTENTS

DESCRIPTION                                          PAGES


IDENTITIES OF PARTIES AND COUNSEL                       2
TABLE OF CONTENTS                                        3
INDEX OF AUTHORITIES                                     4
STATEMENT OF THE CASE                                    7
STATEMENT OF JURISDICTION                                8
ISSUES PRESENTED                                         8
STATEMENT OF FACTS                                       8
STANDARD OF REVIEW                                      10
SUMMARY OF THE ARGUMENT                                 11
ARGUMENT & AUTHORITIES                                  11
ISSUE NO. 1: THE TRIAL COURT ABUSED ITS DISCRETION
BY NOT FOLLOWING WELL GUIDED RULES AND
PRINCIPLES IN ISSUING A DEATH PENALTY DISCOVERY
SANCTION.                                               11
ISSUE NO. 2: THE TRIAL COURT ERRED OR ABUSED ITS
DISCRETION IN IMPOSING A DEATH PENALTY SANCTION
AND FAILING OR REFUSING TO SPECIFY THE DISCOVERY
THAT HAD NOT BEEN PRODUCED IN ITS FINDING OF FACTS
AND CONCLUSIONS OF LAW.                                 32

PRAYER                                                  33
CERTIFICATE OF ELECTRONIC SERVICE                       35
CERTIFICATE OF COMPLIANCE                               35
APPENDIX                                                36


                                   3
                                       III.
                              INDEX OF AUTHORITIES

CASES                                                                                 PAGE

Andras v. Memorial Hospital System, 888 S.W.2d 567
(Tex. App.—Houston [1st Dist.] 1994, writ denied)…………………………..23,24

Boy Scouts of America v. Responsive Terminal System., Inc.
790 S.W.2d 738, 742 (Tex. App.-Dallas 1990, writ
denied)……………………………..……………………………………………...32

Chrysler Corp. v. Blackmon 841 S. W.2d 844 (Tex. 1992)………….…….16,17,18

Cire v. Cummings, 134 S.W.3d 835, (Tex. 2004)………..…...10,12,13,15,20,21,31

Cortinas v. Lopez ; (No. 13-14-00242-CV 13th Court of Appeals
Corpus Christi-Edinburg December 10, 2014 Pet. Denied)……………….14,21,22

Daniel v. Kelley Oil Corp., 981 S.W.2d 230
(Tex. App.—Houston [1st Dist.] 1998, pet. denied) (op. on reh’g)………………11

GTE Comm’s Sys. Corp. v. Tanner, 856 S.W.2d 725, (Tex. 1993)…….…13,18,30

Hamill v. Level, 917 S.W.2d 15, 16 (Tex. 1996)…………………………………12

In re Western Star Trucks US, Inc., 112 S.W.3d 756,
 (Tex. App.—Eastland 2003) (orig. proceeding)..........................................15,22,23

Paradigm Oil Inc.v. Retamco Operating Inc., 161 S.W.3d at 531
(Tex. App-San Antonio 2004)………………………………………………........15

Response Time, Inc. v. Sterling Commerce (N. Am.), Inc
95 S.W.3d 656, (Tex. App.--Dallas 2002, no pet.)………………………….…....12

Sphon Hosp. v. Mayer, 104 S.W.3d 878, (Tex. 2003)……….…..12,13,16,19,20 30

Stretcher v. Greeg, 542 s.w.2d 954, 958 (Tex. Civ. App. –
Texarkana 1976 no writ);………………………………………………………....32
                                               4
TransAmerican Natural Gas Corp. v. Powell
811 S.W.2d 913, (Tex. 1991) .....................................................12,13,16,18,30,31

Vickery v. Comm’n for Lawyer Discipline, 5 S.W.3d 241, 252
(Tex. App. – Houston 14thDist. 1999 pet. denied)………..…………….…….32,33

STATUTES AND CODES

Tex. Gov’t Code Ann. Section 22.220(a)...............................................................8

Texas Insurance Code Chapter 462.251………………………………….…..…...13

Texas Rules of Civil Procedure 194.2(j)…………………………………………28

Texas Rules of Civil Procedure 197.2………………………………………….....29

Texas Rules of Civil Procedure 215.2 (b)………………………………………..19

Texas Rules of Civil Procedure 299………………………………………………32




                                                   5
                        NO. 03-15-00384-CV
__________________________________________________________________

                  IN THE COURT OF APPEALS FOR THE
                  THIRD JUDICIAL DISTRICT OF TEXAS

                            Austin, Texas
__________________________________________________________________

                     CRYSTAL BINGHAM HERNANDEZ
                             APPELLANT

                                         vs.

                        TIFFANY POLLEY
                            APPELLEE
__________________________________________________________________

             On Appeal from the County Court at Law No. 2
                      Tom Green County, Texas
             The Honorable Penny Roberts, Judge Presiding
__________________________________________________________________

                       APPELLANT’S BRIEF
__________________________________________________________________

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

      Appellant, Crystal Bingham Hernandez, Plaintiff in the trial court, submits

this Brief of Appellant, in accordance with Rule 38 of the Texas Rules of Appellate

Procedure and all local rules of this Court. Appellant respectfully requests this

Court to reverse the take nothing-judgment following entry of dismissal against

Appellant on her causes of action and to remand this case for trial. In support

thereof, Appellant respectfully alleges as follows:


                                          6
                                 IV.
                         STATEMENT OF THE CASE

      Appellant Crystal Bingham Hernandez filed this lawsuit on September 17,

2012 claiming damages as a result of injuries she sustained in a motor vehicle

collision in which Patricia Michelle Rose was driving a 2005 Chevrolet Cobalt and

rear ended her vehicle at a street intersection in San Angelo, Tom Green County,

Texas. Appellant further asserted a negligent entrustment claim against Tiffany

Polley.

      On January 9, 2013 Kirk Willis attorney for the Texas Guaranty Fund filed

an answer and made an appearance on behalf of Tiffany Polley. (CR 12).

      On September 30, 2013, trial court signed an Agreed Order granting

Defendant Tiffany Polley’s Motion to Compel and Plea in Abatement requiring

Appellant to produce certain documents in discovery. (CR19).

      On June 6, 2014 Appellee filed a Motion to Dismiss seeking Sanctions

against Appellant for failing to produce discovery. (CR 20).

      On October 8, 2014 Appellant filed a response to Appellee’s Motion to

dismiss outlining all efforts to comply with the discovery order. (CR86-149).

      On January 8, 2015 Appellant filed a response to Appellee’s Motion to

dismiss attaching numerous exhibits outlining its efforts in complying with

defendant’s discovery request. (CR25,26,28).

      On January 8, 2015 this Court granted Appellee’s Motion to Dismiss on
                                         7
behalf of Tiffany Polley and dismissed all of Appellant’s causes of actions against

Tiffany Polley. (CR29).

                                  V.
                       STATEMENT OF JURISDICTION

      This Court possesses jurisdiction over this matter, pursuant to Tex. Gov’t

Code Ann. Section 22.220(a).

                                      VI.
                              ISSUES PRESENTED

ISSUE NO. 1:

       The trial court abused its discretion in issuing an order imposing death

penalty sanctions for discovery abuse against Appellant, dismissing all of

Appellant’s causes of action against Appellee.

ISSUE NO. 2:

      The trial court erred or abused its discretion in imposing a death penalty

sanction and failing or refusing to specify the discovery that had not been produced

in its finding of facts and conclusions of law.

                                   VII.
                            STATEMENT OF FACTS

      This case involves a motor vehicle collision that caused damages to

Appellant. A lawsuit was filed and during the pendency of the claim the liability

insurance company went into receivership and was represented by the Texas

Guaranty Fund. On September 30, 2013 an Agreed Order was signed by the Tom
                                           8
Green County Court at Law requiring Appellant to respond to certain discovery

request. All other matters were abated by this Order. (CR 19). On June 6, 2014

Appellee filed a Motion to Dismiss and for Sanctions seeking Sanctions against

Appellant for failing to produce discovery. (CR 20). The trial court had two (2)

hearings on Appellee’s Motion to compel seeking sanctions.

       The first hearing was on October 8, 2014 (RR2:3-11) and the second

hearing was on January 8, 2015 (RR3:1-41). Appellant sought throughout the case

to obtain clarification from the Appellee and from the trial court of the specific

discovery documents that had not been produced. On October 8, 2014 the trial

court and counsel for the Appellee confirmed on the record and to Appellant that

the only documents that had not been produced were La Esperanza medical

records, La Esperanza medical bills, and the Del Mar bills. (RR2:15-25 and 8). On

January 8, 2015 Appellee’s counsel confirms receipt of the documents that were

identified in the previous hearing and for the first time complains about a blank on

an affidavit that was not filled in by Appellant. (RR3:23-25,4-7). At Appellant’s

request the trial court filed a request for finding of facts and conclusions of law

(CR 44) but the trial court refused or failed to identify the discovery that had not

been produced. Appellant objected to the trial court’s finding of facts and

conclusions of law and sought amended finding of facts and conclusions of law in

an attempt to identify the discovery documents that were not produced. (CR46).


                                         9
The trial court filed amended findings of facts and conclusions of law but did not

specify what discovery documents were not produced by Appellant that violated

the court’s order. (CR50). Appellant submitted proposed findings of facts and

conclusions of law that were rejected by the trial court. (CR46). The record

demonstrates that Appellant attempted to obtain clarification of what specific

documents had not been produced in discovery. A review of the entire record

demonstrates that Appellant did produce in discovery to Appellee all documents

that were identified on the record.

      Specifically, the record demonstrates that Appellant produced all documents

identified at the October 8, 2014 hearing and produced all documents identified in

the September 30, 2013 Order. (RR October 8, 2014 hearing Exhibits A-M) (CR

25,26,28, 35-39). Nevertheless, the trial court refused to make specific findings of

discovery that had not been produced and instead generally found that Appellant

did not comply with the discovery orders. On January 8, 2015, the Court granted

Appellee’s motion for sanctions and dismissed Appellants claim against Appellee.

                                   VIII.
                            STANDARD OF REVIEW

      A trial court’s ruling on a motion for sanctions is reviewed under an abuse of

discretion standard. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004). A trial

court abuses its discretion when its ruling is arbitrary and unreasonable without

reference to any guiding rules and principles. Id. at 838–39. In conducting an
                                        10
Appellate   review,    the Appellate Court is     not limited to a review of the

“sufficiency of the evidence” to support the trial court’s findings; rather, the

Appellate Court will make an independent inquiry of the entire record to determine

if the court abused its discretion by imposing the sanction. Daniel v. Kelley Oil

Corp., 981 S.W.2d 230, 234 (Tex. App.—Houston [1st Dist.] 1998, pet. denied)

(op. on reh’g).

                                 IX.
                         SUMMARY OF ARGUMENT

      The trial court abused its discretion by imposing a death penalty discovery

sanction before imposing or exploring a lesser sanction. Appellant exercised due

diligence in fully or substantially complying with Appellee’s discovery request as

demonstrated by the record. The trial court erred in not specifying in its finding of

facts what specific discovery had not been produced by Appellant. Appellant has

been denied due process of the law in not allowing Appellant to have a jury trial.

Appellants’ claims and causes of action have merit and can be proven in a trial.

                                  X.
                        ARGUMENT & AUTHORITIES

      ISSUE NO. 1.

    THE TRIAL COURT ABUSED ITS DISCRETION BY NOT
FOLLOWING WELL GUIDED RULES AND PRINCIPLES IN ISSUING A
DEATH PENALTY DISCOVERY SANCTION.




                                         11
      A trial court may not impose a sanction that is more severe than necessary to

satisfy a legitimate purpose, such as compliance with discovery rules, deterring

other litigants from similar conduct, and punishing violators. Cire v. Cummings,

134 S.W.3d 835, 839 (Tex. 2004); Spohn Hosp. v. Mayer, 104 S.W.3d 878, 882

(Tex. 2003); TransAmerican Natural Gas Corp v. Powell, 811 S.W.2d 913, 917

(Tex. 1991). Sanctions must not be excessive. Cire, 134 S.W.3d at 839; Spohn,

104 S.W.3d at 882; TransAmerican, 811 S.W.2d at 917. That is to say, the

"punishment should fit the crime." Cire, 134 S.W.3d at 839; TransAmerican, 811

S.W.2d at 917. A death penalty sanction “is of particular concern” because the

trial court renders judgment without addressing the merits of the case. Hamill v.

Level, 917 S.W.2d 15, 16 (Tex. 1996).

      It is well established that because a trial court's power to impose “death

penalty" sanctions is limited by due process concerns, the trial court must first

consider less severe sanctions before imposing "death penalty" sanctions.

Response Time, Inc. v. Sterling Commerce (N. Am.), Inc., 95 S.W.3d 656, 660

(Tex. App.--Dallas 2002, no pet.). The Texas Supreme court requires trial courts

to consider less stringent sanctions and determine their efficacy and whether such

lesser sanctions would fully promote compliance. TransAmerican Natural Gas

Corp. v. Powell, 811 S.W.2d at 917 (Tex. 1991); Cire at 840 Chrysler Corp. v.

Blackmon 841 S. W.2d 844 (Tex. 1992); Sphon Hosp. v. Mayer, 104 S.W.3d


                                        12
878, 882 (Tex. 2003).       The record must reflect the trial court considered the

availability of appropriate lesser sanctions and must contain an explanation of the

appropriateness of the sanctions imposed. Id. at 842 (also applying GTE Comm’s

Sys. Corp. v. Tanner, 856 S.W.2d 725, 729 (Tex. 1993) Id. Sphon Hosp. at 883

(Tex. 2003). Cire, 134 S.W.3d at 839; Spohn, 104 S.W.3d at 882;

TransAmerican, 811 S.W.2d at 917. In all but the most exceptional cases, the

trial court must actually test the lesser sanctions before striking a party's pleadings.

Cire, 134 S.W.3d at 842.

      When a court imposes death penalty sanctions, the court effectively

adjudicates the party's claims without regard to the merits. TransAmerican,

811S.W.2d at 918. As such, death penalty sanctions are not proper sanctions

unless the discovery violation justifies a presumption that the party's claims or

defenses lack merit.     TransAmerican, 811S.W.2d at 918.            Appellee alleges

Appellant’s claims lack merit because Appellant failed to meet its burden that no

other insurance exists pursuant to Texas Insurance Code Chapter 462.251.

(CR1:220-226).

      The record reveals that Appellant produced every item requested in

discovery and there can be no presumption that Appellant’s case for negligent

entrustment lacks merit as the accident report establishes that Patricia Rose was

driving the 1994 Jeep Wrangler while she had an expired driver’s license. The


                                          13
owner of the vehicle, Tiffany Polley, entrusted the vehicle to a person with an

expired driver’s license. (CR 1:171-174) (CR 1:98-99: 86-152, 99-130; CR

1:86-152    RR     4,5   Exhibits    A-M).    These    documents     attached    to

Appellant’s response to Appellee’s motion to dismiss and the documents

introduced at the October 2014 and January 2015 hearing and documents on file

with the court such as medical billing affidavits made part of the court record,

reveal that Appellant did not have other insurance and had exhausted all health

insurance that was identified.

      This Court can only speculate that the trial court issued death penalty

discovery sanctions in this case based on an affidavit that contained a blank that

was not filled in but instead Appellant attached documents that contained the

answers of the amounts paid as requested by the affidavit. In a strikingly similar

case involving the same Appellee’s attorneys for the Texas Guaranty Fund the 13th

Court of Appeals recently stated that a “release of assignment of lien” that was

provided by plaintiff’s counsel although technically in violation of the court’s

order did not support a presumption that the plaintiff’s claims lacked merit. Maria

Cortinas v. Lopez; (No. 13-14-00242-CV 13th Court of Appeals Corpus Christi-

Edinburg December 10, 2014 Pet. Denied). The Appellate Court reversed a death

penalty discovery sanction imposed by the trial court and was not persuaded by the

Appellee’s “gotcha discovery tactics” and instead looked at the entire record in


                                        14
concluding that the trial court acted arbitrarily and Appellate court reversed a death

penalty sanction and the Texas Supreme Court denied petition.

      Severe sanctions that preclude presentation of the merits should not be

assessed absent a party's flagrant bad faith or counsel's callous disregard for the

responsibilities of discovery under the rules. Id. While a trial court is not required

under certain circumstances to actually test the effectiveness of each available

lesser sanction by actually imposing it prior to issuing death penalty sanctions, 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, 842. An

order compelling discovery standing alone is not considered an attempt at a lesser

sanction. Paradigm Oil Inc.v. Retamco Operating Inc., 161 S.W.3d at 531 (Tex.

App-San Antonio 2004); In re Western Star Trucks US, Inc., 112 S.W.3d 756,

766 (Tex. App.—Eastland 2003) (orig. proceeding).

      In the case at bar, the record depicts during the first Sanction hearing on

October 8, 2014, Appellee’s       counsel confirmed that only three (3) sets of

documents had not been produced in discovery. (RR 4:18-25;5-9). In the second

hearing on January 8, 2015, the Court record establishes that the three (3)

documents that had not been produced were medical records for La Esperanza, La

Esperanza medical bills, and the Del Mar bills, and these records and bills had now

been produced by Appellant. (RR 4,5: Exhibits A-M).


                                         15
THE TEXAS SUPREME COURT AND COURT OF APPEALS HAVE
CREATED WELL      ESTABLISHED GUIDELINES, RULES   AND
PRINCIPLES TO FOLLOW IN ISSUING A DEATH PENALTY
SANCTION AND THE TRIAL COURT’S DEATH PENALTY SANCTION
IN THIS CASE WAS ARBRITRARY AND UNREASONABLE.

TEXAS SUPREME COURT CASES:

1.)   TransAmerican Natural Gas Corp. v. Powell 811 S.W.2d at 917(Tex.

      1991). The Texas Supreme Court established that a trial court may not

      impose sanctions that are more severe than necessary to satisfy legitimate

      purposes. The Supreme Court developed a two-part test for courts to apply

      when determining whether a sanction is “just.” Id at 917.

            First, there must be a direct nexus among the offensive conduct, the
            offender, and the sanction imposed. A just sanction must be directed
            against the abuse and toward remedying the prejudice caused to the
            innocent party, and the sanction should be visited upon the offender.
            Id at 917.

            Second, just sanctions must not be excessive to punish the improper
            conduct. That is, a sanction imposed for discovery abuse should be no
            more severe than necessary to satisfy its legitimate purposes, which
            includes securing compliance with discovery rules, deterring other
            litigants from similar misconduct, and punishing violators. Id.; see
            also Spohn Hosp., 104 S.W.3d at 882; Chrysler Corp. v. Blackmon,
            841 S.W.2d 844, 849 (Tex. 1992).

            In the case at bar, nothing in the record reveals that the trial court

      engaged in the required analysis and nothing in the record reveals that the

      trial court considered a lesser sanction to achieve a legitimate purpose. The

      record reflects that Appellee’s counsel offered to make Appellee available


                                        16
      for a deposition so that under oath information could be obtained from

      Appellee in the event the documents produced required clarification. (RR3:

      7:12 – 19). The trial court after verifying that the three (3) sets of records

      that were identified in the October 8, 2014 hearing had been produced

      continued by focusing the trial court’s attention on an affidavit that

      contained a blank that was not properly filled in. (RR 3:40). The trial court

      could have required plaintiff to fill in the blank and could have made a

      finding that attaching documents that contained the answers to an affidavit

      was not sufficient compliance. Nothing in the record shows that the trial

      court ever informed Appellee that attaching records to an affidavit was not a

      sufficient response. Nothing in the record shows that the court engaged in

      an analysis to determine that the death penalty sanction was just under these

      circumstances.

2.)   Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849-50 (Tex. 1992).

      Texas Supreme Court noted that:

                   “….in order to support the assessment of death penalty
                   sanctions for discovery abuse, the movant must show that the
                   failure to properly respond to discovery requests prejudiced the
                   opposing party. That is to say, the movant must prove that it is
                   unable to prepare for trial without the additional information.
                   Id. at 849-50.

      Instead of death penalty sanctions, the Court noted that:



                                         17
                     “… reimbursement of expenses for pursuing motions to compel
                     discovery and for sanctions would appear to be better calculated
                     to remedy the prejudice of unnecessary fees and expenses.” Id.
                     at 850. Additionally, the Texas Supreme Court noted that
                     despite the detail that may be contained in a trial court's order
                     of sanctions, the findings must be pertinent to the
                     TransAmerican standards, and be supported by the record. Id.
                     at 852-53.

            In the case at bar, nothing in the record shows that Appellee’s defense

      would be jeopardized based on the documents that were provided by

      Appellant to Appellee and that are contained in the record. The affidavit

      containing a blank that was not filled in had documents attached to the

      affidavit containing the answer although not in the format acceptable to the

      Appellee. The record refutes a presumption that Appellant’s case lacks merit

      or that Appellee’s defense has been jeopardized.


3.)   GTE Communications System Corporation v. Tanner, 856 S.W.2d 725

      (Tex, 1993).

      The Texas Supreme Court reaffirmed the TransAmerican holding noting:

            that a trial court was required to consider the availability of lesser
            sanction before imposing death penalty sanctions. The trial court must
            analyze the available sanctions and offer a reasoned explanation as to
            the appropriateness of the sanction imposed. Id at 729. The court
            reemphasized that case-determinative sanctions may only be imposed
            in “exceptional cases” where they are “clearly justified” and it is
            “fully apparent that no lesser sanctions would promote compliance
            with the rules”. Id. At 729-730.

            The trial court in the present case did not analyze the available

                                          18
      sanctions and did not impose available sanctions to determine if compliance

      could be achieved. The trial court did not establish why any of the sanctions

      below would not have promoted compliance. None of the available sanctions

      were tried in this case. Texas Rules of Civil Procedure 215.2 (b) lists the

      other sanctions that a trial court may impose:

            (1) an order disallowing any further discovery of any kind;
            (2) an order charging all or portion of the expenses of discovery
                against the disobedient party;
            (3) an order that the matters regarding which the order was made or
                any other designated facts shall be taken to be established;
            (4) an order refusing to allow the disobedient party to support or
                oppose designated claims or defenses, or prohibiting designated
                evidence from being introduced into evidence;
            (5) an order striking out pleadings or parts thereof, staying the action
                until the order is obeyed, dismissing the action with or without
                prejudice, or rendering judgment by default;
            (6) a contempt order;
            (7) an order requiring the disobedient party to pay reasonable
                expenses, including attorney fees, caused by the failure.


4.)   Spohn Hosp. v. Mayer, 104 S.W.3d 878 (Tex. 2003), The trial court granted

      death penalty sanctions against a hospital defendant who failed to produce

      witness statements until thirty one days before trial and the trial court

      instructed the jury that the facts contained in the written statements should

      be taken as established. Id. at 881. The Texas Supreme Court concluded:

            “trial court abused its discretion in assessing case- determinative,
            death penalty sanctions”. The Court stated that, while the sanction was
            generally directed at the alleged abuse, the record contained no
            evidence that the sanctions were visited on the offender, noting that
                                         19
            neither the trial court nor the court of appeals discussed whether
            counsel or their clients were responsible for the discovery abuse. Id.
            at 882-83. The Court further noted that the record was silent regarding
            the trial court's consideration and effectiveness of less stringent
            sanctions. Id. at 883. The Court concluded that the facts were
            insufficient to justify case-determinative sanctions and that the
            sanctions were, therefore, excessive. Id. at 883;

         In the present case, the record does not reflect any analysis by the trial

      court to determine the responsible offender and to determine if a lesser

      sanction would promote compliance.

5.)   Cire v. Cummings, 134 S.W.3d 835, 837 (Tex. 2004).

            Cire is an example of a discovery abuse that rises to the level of a

      death penalty sanction and the case provides a sample of the analysis

      required by a trial court before imposing a death penalty sanction.

            Death penalty sanctions were found to be reasonable in this case. The
            recipient of the death penalty sanctions violated two orders
            compelling production of responsive audiotapes. Id. at 837. The party
            also violated the trial court's order that required payment of $250 in
            attorneys' fees to the opposing party and the trial court's order to
            comply with discovery requests. Id. at 837. Furthermore, the party not
            only possessed the audiotapes, but actually burned the tapes and found
            humor in being a habitual liar. Id. at 837. The trial court determined
            that the party deliberately destroyed the audiotapes to avoid
            production of evidence that would have demonstrated that the
            opposing party was not liable. Id. at 837-38. In light of these
            circumstances, the trial court granted a motion to strike the party's
            pleadings. Id. at 838. In support of the order, the trial court noted that
            the party flagrantly violated four discovery orders, refused to answer
            questions in deposition, used forged documents to gain an advantage
            with the court, gave conflicting testimony under oath, and deliberately
            destroyed and concealed material evidence that would have
            demonstrated her claims lacked merit. Id. at 838. Based on these
                                         20
            facts, the trial court determined that less stringent sanctions would be
            ineffective, noting that monetary sanctions would not deter the party's
            actions since the party did not pay the $250 sanction levied for filing
            frivolous objections to discovery requests. Id. at 838. In concluding
            that monetary sanctions would not have been effective, the trial court
            described testimony by the party in which she stated that she had no
            money to pay monetary sanctions and that she and her counsel refused
            to pay the $250 sanction for filing frivolous objections to discovery.
            Id. at 841. Thus, the party's actions and statements "made it clear that
            monetary sanctions are not effective to deter the party's conduct." Id.
            at 841. The trial court further concluded that monetary sanctions
            could not cure the party's wrongdoing which included the destruction
            and concealing of material evidence.

            Texas Supreme Court and Texas Court of Appeals decision establish

      that except in the most “egregious of cases” death penalty sanctions will not

      be upheld. (Emphasis added).

TEXAS APPELLATE COURTS FOLLOW TEXAS SUPREME COURT
MANDATES:

6.)   Maria Del Rosario Cortinas v. Noe Lopez ; (No. 13-14-00242-CV 13th

      Court of Appeals Corpus Christi-Edinburg December 10, 2014 Pet.

      Denied).

            In a case amazingly similar to the facts of the case at bar, involving

      the same Appellee’s counselors as in the current case, the 13th Court of

      Appeals reversed and remanded a trial court that issued a death penalty

      discovery sanction and failed to consider and test less stringent sanctions.

      The Court of Appeals:

            rebuked the Appellee’s arguments that a “release of assignments of
                                        21
            liens” was not in a proper format and although this technically
            violated the November 13, 2013 discovery order the Court of Appeals
            found that an improper lien form did not support a presumption that
            plaintiff’s claims lacked merit. The Appellate Court likewise
            denounced Appellee’s argument that Appellant’s counsel consented to
            a dismissal by acknowledging to the trial court that he understood that
            the case would likely be dismissed in ninety days if the documents
            were not produced. The Appellate court stated: “This remark does
            not show that plaintiff consented to a dismissal or that the dismissal
            was “just” and it has absolutely no bearing on the issue of whether
            the trial court fulfilled its duty as required by the Texas Supreme
            Court to consider and test less stringent sanctions before imposing
            the “death penalty”. (emphasis added.)

          In the case at bar, once again Appellee argues in his response to the

    Motion for new trial (CR 1:220-227) that Appellant’s counsel consented to a

    dismissal when he said “okay” after the court warned the Appellant that if the

    medical records were not produced the court would likely dismiss the case.

    Appellee argues that this statement is a “lesser” sanction and a binding

    acceptance by Appellant of a dismissal. Appellee does not argue that another

    lesser sanction was tested and tried by the trial court.

7.) In re Western Star Trucks US, Inc., 112 S.W.3d 756 (Tex. App. Eastland

    2003, orig. proceeding),

    the court of appeals found:

            that orders to compel that precipitated the case-determinative
            sanctions were not a lesser sanction as contemplated under the
            TransAmerican analysis. Id. at 766. The court of appeals also noted
            that the death penalty sanctions were imposed based on the
            defendants' purported failure to produce relevant information. Id. at
            766. However, the court of appeals also noted that after the orders
                                         22
           compelling the defendants to produce the information, they produced
           3,000 pages of documents which contained relevant information. Id.
           at 766. Because the relator at least partially complied with the trial
           court's order compelling discovery, the court of appeals concluded
           that the trial court's entry of death penalty sanctions was excessive. Id.
           at 766.

         In the case at bar, Appellant has presented sufficient proof that all

   documents ordered to be produced were in fact produced. (RR October 8,

   2014 hearing Exhibits A-M) (CR 25, 26, 28, 35-39). Thus, as in Western

   Star, because Appellant made efforts to comply with court orders by

   producing the discovery documents Appellant believed the trial court ordered,

   death penalty sanctions were not appropriate in this case.

8.) Andras v. Memorial Hospital System, 888 S.W.2d 567 (Tex. App.—

   Houston [1st Dist.] 1994, writ denied).

           In Andras, the trial court properly followed Texas Supreme Court

     guidelines when it:

           compelled production of relevant discovery and the documents were
           not produced. Id. at 570. Furthermore, the record demonstrated that a
           relevant database had been destroyed while a motion to compel was
           pending. Id. at 570. The trial court granted a second motion to compel
           and informed the party that if it did not comply, its pleadings may be
           struck. Id. at 570. The party still did not produce the documents. Id. at
           570. Nevertheless, the trial court once again ordered the party to
           comply with the court's previous orders within 4 days of trial and
           warned that if the court's orders were again violated, the party's
           pleadings would be struck. Id. at 570. Despite numerous requests for
           production, orders compelling production, and a subpoena, the
           relevant database was destroyed and never recreated despite the
           party's representation that the database could be recreated. Id. at 570.
                                        23
              Furthermore, even though the trial court overruled the party's
              objections to the production of relevant documents, instead of
              producing the documents, the party simply reasserted its objections.
              Id. at 571. As a result, the trial court ultimately struck the party's
              pleadings. Id. at 571. Because three orders to compel were not enough
              to produce the documents and the party informed the trial court that
              none would be produced, there was no reason to believe that lesser
              sanctions would be effective. Id. at 572. Additionally, the court of
              appeals noted that the documents not produced were vital to both the
              prosecution and defense of the lawsuit and, thus, the sanctions
              assessed were not too severe. Id. at 572. Furthermore, because the
              missing documents were vital to the sanctioned party's case and the
              party's counsel admitted that they could not be produced, there was a
              justified presumption that the claim was without merit. Id. at 573. As
              a result, the court of appeals concluded that the sanctions were not
              more severe than necessary. Id. at 573.

         By contrast, there was no evidence that the Appellant in this case destroyed

responsive documents. The record reveals that all documents required to be

produced were in fact produced. Furthermore, when the trial court ordered

production of the three (3) sets of medical records, the Appellant produced them.

Additionally, the trial court never notified the Appellant that attaching documents

containing the required information was not sufficient to comply with the court’s

order.


DEATH PENALTY SANCTION NOT WARRANTED IN THIS CASE
BECAUSE APPELLANT EXCERCISED DUE DILIGENCE IN
COMPLYING WITH THE COURT’S DISCOVERY ORDER


         The trial court dismissed Appellant’s case against Appellee due to not

complying with the Courts Order of September 13, 2013. The court’s order

                                          24
enumerates the documents that Appellant was required to produce. The record in

this case contains proof that Appellant had served numerous documents in

response to discovery request and had fully complied with the Courts order of

September 13, 2013. (See generally all exhibits attached to RR October 2014

and January 2015 hearings; together with all the exhibits attached to

Appellants Motion for new trial and Response to Appellee’s Motion to dismiss

found in CR1:86-148,150-152,162-193). Specifically, this order required

Appellant to produce:

   a. Satisfactory responses to Request for Production---No Objections were
      filed by Appellee indicating that a specific response to a request for
      production was not satisfactory. Nothing in the record would support
      dismissal on this ground.

   b. Satisfactory responses to Interrogatories---No Objections were filed by
      Appellee indicating that a specific response to an Interrogatory was not
      satisfactory. Nothing in the record would support dismissal on this ground.

   c. Properly executed Affidavit regarding other insurance and
      attachments---Provided as an attachment in Appellant’s Response to
      Appellee’s Motion to Dismiss on October 8, 2014. (CR 1:98-99: 86-152).

   d. Uninsured and/or Underinsured Motorist Rejections Signature pages---
      Provided to defendant as an attachment in Appellant’s Response to
      Appellee’s Motion to Dismiss on October 8, 2014. ( CR 1:99-130).

   e. Personal injury protection rejection signature pages---Provided to
      Appellee as an attachment in Appellant’s Response to Appellee’s Motion to
      Dismiss on October 8, 2014. (CR 1:99-130).

   f. All information pertaining to other applicable insurance through
      Appellants employer, Appellants spouse, and any other additional
      dependents or other household members---Provided to Appellee as an
                                       25
      attachment in Appellant’s Response to Appellee’s Motion to Dismiss on
      October 8, 2014. . (CR1: 86-152).

   g. Release of assignment documents from any healthcare providers---
      Provided to Appellee as an attachment in Appellant’s Response to
      Appellee’s Motion to Dismiss on October 8, 2014. (CR 1:86-152RR
      January 8, 2015 Exhibits A-M).

   h. All explanation of benefit documentation---Provided to Appellee as an
      attachment in Appellant’s Response to Appellee’s Motion to Dismiss on
      October 8, 2014. ( CR1:86-152 RR exhibits A-M).


APPELLANTS CONDUCT DOES NOT JUSTIFY A PRESUMPTION THAT
IT’S CLAIMS OR DEFENSES LACK MERIT AND THAT IT WOULD BE
UNJUST TO PERMIT APPELLANT TO PRESENT THE SUBSTANCE OF
THAT POSITION BEFORE THE COURT

      Appellant’s counsel sought clarification and made numerous efforts to

clarify on the record what discovery had not been provided. Importantly,

Appellee’s counsel confirmed with the trial court on October 7, 2014 that only

three (3) sets of documents were necessary to comply with the court’s order. The

exchange was as follows (RR 4:18-25; 5-9).

      Page 9------
            MR. DEHOYOS: Just to make it very clear, it's three sets of
                   records. One is La
                   Esperanza medical records, one is La Esperanza medical
                   bills, and then the other one's
                   Del Mar bills.
            MR. WILLIAMS: And the fourth was given to me a
                   moment ago.
            THE COURT: And the fourth was given to you a few
                   moments ago, so that would meet the requirements that you're
                   asking for.
            MR. DEHOYOS: And everything else has been complied
                                      26
                   with, there's nothing else.
                   (EMPHASIS ADDED!)

Additionally, the Court starts the Hearing on January 8, 2015 as follows:
(RR3:23-25).

            THE COURT: All right. Were you given the
                three documents that were outlined and identified in the
                original hearing

      Appellant presented to this Court sufficient evidence on January 8, 2015

Exhibits A—M to establish that the three (3) sets of records identified in the

October 2014 hearing as the only records that were not previously produced had

now been received by Appellee’s counsel. These records were received prior to the

Order dismissing Appellant’s case. The evidence produced also included an email

stating that Appellee’s counsel confirmed receiving the documents. APPELLANT

COMPLIED WITH THE COURTS ORDER AND PRESENTED EVIDENCE

CONFIRMING COMPLIANCE!


APPELLANT ALSO MADE GOOD FAITH EFFORTS TO COMPLY WITH
DISCOVERY REQUEST

      Appellee’s counsel best described Appellant’s efforts in producing

documents and complying with discovery request when he stated (RR3:25,

January 8, 2015 hearing):

      MR. WILLIAMS: Your Honor, if I may?
12 Your Honor, each time we come before this
13 Court we're presented with a haystack of documents, and
14 each time we ask the same basic question. How much has
                                        27
15 been paid in insurance? Do we have Explanation of
16 Benefits? Do we have rejection pages? Do we have an
17 Affidavit Regarding Other Insurance? Very basic
18 questions, Your Honor.
19 Notwithstanding several years, a thousand
20 pieces of paper, and a whole bunch of hearings, we're
21 still trying to ask the same question at this moment.

      First, the record depicts Appellant provided and Appellee received a signed

authorization from Appellant that allowed Appellee full disclosure to her health

care claim history, liability insurance history and medical information. (RR 4:14-

18 January 8, 2015 hearing). Appellee had full access to Appellant’s information

and nothing in the record indicates Appellee ever engaged in efforts to obtain any

information that was not received. All efforts to obtain information were solely

made by the Appellant. Appellee now complains that his defense is jeopardized by

Appellants failure to provide discovery. Appellee fails to point out that in this case

if Appellee’s defense was jeopardized it was due to Appellee’s own conduct or

lack thereof. Appellant demonstrated good faith efforts in complying with

discovery request as allowed pursuant to Texas Rules of Civil Procedure

194.2(j).

      Second, Appellant filed medical records and billing affidavits and provided

copies to Appellee. See receipt by the Appellee’s counsel in Appellants response to

Motion to dismiss and attachments and in Exhibits A-M filed with the Court at the

January 8, 2015 hearing. (RR 2,3: hearings and RR4,5 Exhibits A-M) (RR 4,5


                                         28
Exhibits 300 pgs.) (CR 25,26,28, 35-39).

      Third, Appellant produced a letter from the insurance companies explaining

the benefits and indicating amounts paid. (CR1:223-286)(CR1:241-250). Texas

Rules of Civil Procedure 197.2 allows a party to produce records in response to

an Interrogatory (affidavit) if the answer can be ascertained by the defendant from

the records. Defendant could obtain the answer to the information requested in the

affidavit   Interrogatory    from     the    documents       attached   to    said

affidavit.(CR1:242)(CR1:241-250).

      Fourth, Appellant’s counsel sought clarification on what discovery had not

been produced and was given direct answers as follows (RR 8-9 January 8, 2015

hearing):

      MR. DEHOYOS: Just to make it very clear,
      3 it's three sets of records. One is La Esperanza medical
      4 records, one is La Esperanza medical bills, and then the
      5 other one's Del Mar bills.
      6 MR. WILLIAMS: And the fourth was given to
      7 me a moment ago.
      8 THE COURT: And the fourth was given to
      9 you a few moments ago, so that would meet the
      10 requirements that you're asking for.
      11 MR. DEHOYOS: And everything else has been
      12 complied with, there's nothing else.

      On the January 9, 2015 hearing the Trial Court reveals her understanding of

the previous hearing that only three (3) documents had not been produced and were

required to be produced. (RR January 8, 2015 hearing 3:22-25).


                                        29
         THE COURT: Are each of you ready to proceed?
      22 MR. WILLIAMS: Yes, Your Honor.
      23 THE COURT: All right. Were you given the
      24 three documents that were outlined and identified in the
      25 original hearing?

      Fifth, Appellant produced the three (3) documents outlined in the previous

hearing. (RR4, 5 January 8, 2015 hearing Exhibits A-M). In summary, the trial

court violated the longstanding procedure and required analysis before imposing

the death penalty sanction. The record does not reflect the trial court considered the

availability of appropriate lesser sanctions and does not contain an explanation of

the appropriateness of the sanctions imposed. GTE Comm’s Sys. Corp. v.

Tanner, 856 S.W.2d 725, 729 (Tex. 1993); Sphon Hosp. v. Mayer, 104 S.W.3d

878, 883 (Tex. 2003). Cire, 134 S.W.3d at 839; Spohn, 104 S.W.3d at 882;

TransAmerican, 811 S.W.2d at 917.


THE TRIAL COURT ACKNOWLEDGED LESSER SANCTIONS WERE
NOT TESTED OR IMPOSED


      In dismissing Appellant’s case the trial court made statements on the record

admitting that lesser sanctions would not be considered. The trial court

demonstrates that lesser sanctions were never tried to attempt to promote

compliance and consideration of lesser sanctions was excluded because the trial

court’s dismissal was “a big enough sanction”. (RR 39-40).

      THE COURT: -- I feel like there's been
                                         30
      more than enough time for you, as the defendant, to have
      received the information that you asked for. This case
      was filed quite sometime ago; however, I am not going to
      give you sanctions against Mr. DeHoyos. Sometimes
      herding a client is like herding cats. I am, however, going to grant your
      motion to dismiss.

…….THE COURT: Yes. At this time I'm going
    to order that all causes of action and claims by
    Plaintiff Crystal Bingham Hernandez is dismissed with
    prejudice to the refiling of the same. I am not going
    to order that plaintiff must pay any attorney's fees and
    costs for preparing litigation for this motion. I feel
    like dismissing the case was a big enough sanction, and
    there we go.

      The trial court did not consider lesser sanctions to promote compliance. The

trial court did not engage in the mandatory analysis required under TransAmerican

to establish a direct nexus among the offensive conduct, the offender, and the

sanction imposed. The trial court did not establish on the record that the death

penalty sanction was no more severe than necessary to satisfy its legitimate

purposes. The record establishes substantial or full compliance with the court’s

order and demonstrates Appellant’s counsel exercised due diligence in providing

the requested discovery. The record does not establish an “egregious case”

involving a party's flagrant bad faith or counsel's callous disregard for the

responsibilities of discovery under the rules meriting a death penalty sanction.

Cire, 134 S.W.3d at 840, 842.     The trial court’s analysis was inconsistent with

the Texas Supreme Court’s mandates and the court’s order dismissing Appellant’s


                                        31
case should be reversed and remanded.

      ISSUE NO. 2:

    THE TRIAL COURT ERRED OR ABUSED ITS DISCRETION IN
IMPOSING A DEATH PENALTY SANCTION AND FAILING OR
REFUSING TO SPECIFY THE DISCOVERY THAT HAD NOT BEEN
PRODUCED IN ITS FINDING OF FACTS AND CONCLUSIONS OF LAW

      As shown above, throughout this case the record reflects Appellant’s efforts

to clarify discovery that had not been produced. After the trial court dismissed

Appellant’s case, Appellant continued to request that the trial court identify the

documents that were not produced that violated the court’s order and the trial court

refused or failed to identify the documents that were not produced. (CR 31-35, 41,

44-47, 50, 52). Appellant requested finding of facts and conclusions of law and

submitted proposed findings that were overruled by the trial court. The trial court

signed a finding of facts omitted a finding that would identify the specific

discovery that was not produced that violated the court’s order. (CR 31-35, 41, 44-

47, 50, 52). The trial court cannot rely on this Appellate Court to make favorable

presumptions to support the death penalty sanction. Texas Rules of Civil

Procedure 299 does not allow a finding to be presumed when that finding was

requested by the Appellant and was refused by the trial court. Boy Scouts of

America v. Responsive Terminal System., Inc. 790 S.W.2d 738, 742 (Tex. App.-

Dallas 1990, writ denied); Stretcher v. Greg, 542 s.w.2d 954, 958 (Tex. Civ.

App. –Texarkana 1976 no writ); Vickery v. Commission for Lawyer
                                        32
Discipline, 5 S.W.3d 241, 252 (Tex. App. – Houston 14thDist. 1999 pet. denied).

The Appellate Court found that if Appellee drafts proposed findings of facts that

set forth every element of Appellee’s ground of recovery or defense and the trial

court deletes one of the elements, the omitted element cannot later be supplied on

appeal by implication. Vickery, 5 S.W.3d at 253. In the case at bar, Appellant

drafted proposed findings of facts that specified the documents that had not been

produced pursuant to the discovery order and the trial court omitted such findings.

The trial court cannot now ask the Appellate Court to imply the discovery that was

not produced and no presumptions apply as the Appellant properly objected to the

trial courts finding of facts. The Appellate Court is now faced with “only

speculation” to justify the trial court’s death penalty sanction. (RR 1-3 January 8,

2015 hearing). The trial court erroneously imposed a death penalty sanction

without specifying the discovery that had not been produced in violation of the

court’s order and Appellant’s objection was preserved. This Appellate Court

should reverse and remand the dismissal of Appellant’s case and should order a

new trial.

                                      XI.
                                    PRAYER

      Appellant, CRYSTAL BINGHAM HERNANDEZ respectfully prays that

the Court reverse the dismissal order of the trial court and remand this case for

trial, and that the Court grant Appellant such additional relief, legal and/or
                                        33
equitable, to which Appellant may show just entitlement.

                                     Respectfully submitted,

                                     LAW OFFICES OF RICK DEHOYOS
                                     PLLC
                                     502 South Irving Street
                                     San Angelo, TX 76903
                                     rick@dehoyoslawfirm.com
                                     Phone: 325-658-8000
                                     Fax: 325-227-6913



                                 BY:/s/ Rick DeHoyos        _____________________
                                     Rick DeHoyos
                                     SNB: 05644085
                                     Attorney for Appellant




                                       34
                                XII.
                CERTIFICATE OF ELECTRONIC SERVICE

      I hereby certify that a true and correct copy of the foregoing Appellant’s
Brief was served on all counsel of record by electronic delivery on this 18th day of
September, 2015 as follows:

Via Fax Transmission
Kirk D. Willis
The Willis Law Group, PLLC
10440 N. Central Expy., Suite 520
Dallas, Texas 75231
Fax No.: (214) 736-9994

                                      /s/ Rick DeHoyos        _____________________
                                      Rick DeHoyos




                                 XIII.
                      CERTIFICATE OF COMPLIANCE

      Pursuant to Texas Rules of Appellate Procedure 9.4(i)(3), the undersigned

certifies this brief complies with the type-volume limitation of the Texas Rules of

Appellate Procedure 9.4(i)(3). This brief contains 7,621 words, in proportionally

spaced typeface, using Microsoft Word 2010, 14 point type, Times New Roman,

14 characters per inch.


                                      /s/ Rick DeHoyos        _____________________
                                      Rick DeHoyos




                                        35
                          XIV.
                        APPENDIX


1. AGREED ORDER GRANTING DEFENDANT’S MOTION TO
   COMPEL

2. ORDER GRANTING DEFENDANT’S MOTION TO DISMISS AND
   MOTION FOR SANCTIONS

3. ORDER OF SEVERANCE AND ENTRY OF FINAL JUDGMENT
   SIGNED BY JUDGE

4. PLAINTIFF’S REQUEST FOR FINDINGS OF FACTS AND
   CONCLUSIONS OF LAW

5. STATEMENTS OF FACTS AND CONCLUSIONS OF LAW BY
   JUDGE

6. PLAINTIFF’S REQUEST FOR ADDITIONAL OR AMENDED
   FIINDINGS OF FACTS AND CONCLUSIONS OF LAW

7. AMENDED FINDINGS OF FACTS AND CONCLUSIONS OF LAW
   BY JUDGE

8. PLAINTIFFS OBJECTION TO AMENDED FINDINGS OF FACTS
   AND CONCLUSIONS OF LAW

9. SIGNED AUTHORIZATION ALLOWING APPELLEE ACCESS TO
   APPELLANT’S MEDICAL AND INSURANCE INFORMATION

10. CORTINAS V. LOPEZ – 13TH COURT OF APPEALS -
   MEMORANDUM OPINION




                            36
                                                                               FILED FOR
                                    CAUSE NO. 12-C482-L2

CRYSTAL BINGHAM HERNANDEZ,                      §    IN THE COUNTY
    Plaintiff,                                  §                                 Or"ER
                                                §
VS.                                             §                                  NO.2
                                                §
PATRICIA MICHELLE ROSE,                         §
AND TIFFANY POLLEY                              §       TOM GREEN COUNTY, TEXAS
     Defendants.

                      AGREED ORDER GRANTING DEFENDANT'S
                    MOTION TO COMPEL AND PLEA IN ABATEMENT

       On this date, the Court considered Defendant's Motion to Compel and Plea in Abatement.

Plaintiff and Defendant appeared through their counsel. The parties agree that Defendant's Motion

to Compel and Plea in Abatement shall be GRANTED.

       IT IS HEREBY ORDERED that Plaintiff shall serve satisfactory responses to Defendant's

Request for Production and First Set of Interrogatories, including the properly executed Affidavit

Regarding Other Insurance and attachments, Uninsured and/or Underinsured Motorist Rejections

Signature pages, Personal Injury Protection rejection signature pages, as well as all information

pertaining to other applicable insurance through Plaintiff's employer, Plaintiff's spouse, and any

additional dependents or other household members.

       IT IS HEREBY ORDERED that Plaintiff shall produce any and all documents requested

regarding any and all Release of Assignment documents from any healthcare provider, as well as any

and all Explanation of Benefit documentation.




AGED ORDER GRANTING MOTION TO COMPEL AND PLEA IN ABATEMENT
952.0315
                IT IS HEREBY ORDERED that Plaintiffs case is ABATED until such time as

Plaintiff complies with the terms of this order by serving Defendant with all responsive documents

and information contained in this order, and establishes that Plaintiff has exhausted all other

applicable forms of insurance coverage, and has fully complied with this order.

SIGNED this           day of September, 2013,

           SEP 27 2013



                                                         JUDGE PRES DWG


AGREED:

THE WILLIS LAW GROUP, PLLC




                                          6j

BENTON WILLIAMS
ATTORNEY FOR DEFENDANT




AGREED:

THE LAW OFFICES OF RICK DEHOYOS



RICK DEHOYOS
ATTORNEY FOR




AGREED ORDER GRANImG MOTION TO COMPEL AND PLEA IN ABATEMENT
952.0315
                                                                      FILED FOR RECORD
                                   CAUSE NO. 12-C482-L2
                                                                      Th J:H - AM 9: L.
CRYSTAL BINGHAM HERNANDEZ,                    §      IN THE COUNTYURT 0F4
    Plaintiff,                                §                     co  CLERK
                                              §                 COU"       I. TEXAS
VS.                                           §                        NO.2
                                              §
PATRICIA MICHELLE ROSE,                       §
AND TIFFANY POLLEY                            §         TOM GREEN COUNTY, TEXAS
     Defendants.

   ORDER GRANTING DEFENDANT TIFFANY POLLEY'S MOTION TO DISMISS
                   AND MOTION FOR SANCTIONS

       On this day came on to be considered the Defendant Tiffany Polley's Motion to Dismiss

with Prejudice and Motion for Sanctions. After due consideration, the Court finds that such

motion should be in all things GRANTED.

       IT IS, THEREFORE, ORDERED, that all causes of action and claims by Plaintiff Crystal

Bingham Hernandez are dismissed with prejudice to the refihing of same; and

       IT IS FURTHER ORDERED that Plaintiff must pay Defendant's attorney fees and costs

incurred in preparing and litigation this motion in the amount of


                                                  JAN 0 6 Z015
       SIGNED this             day of                                    , 2014.




                                                     PRESID JUDGE




ORDER OF DISMISSAL WITH PREJUDICE
952.0315                                                                             Solo Page
                                                                                        Fltf 0 FOR RECORD
                                                                                         15144R27 AMIO:rj
                                     CAUSE NO. 1.2482-L2
                                                                                 ELIZABETH MCGILL
CRYSTAL BINCHAM                                                                COUNTY OF CLERK.
                                                                                           EEL TEXAS
HERNANDEZ,                                     §            IN THE COUNTY COURT AT LAW
Plaintiff

V
.S.                                                     OF

PATRICIA MICHELLE ROSE,
TIFFANY POLLEY                                 §        TOM GREEN COUNTY, TEXAS
Defendants


            ORDER OF SEVERANCE AND ENTRY OF.. FINAL JUDGMENT

       On this          day of           SIOZ I Z UVII         2015, came on to be heard

Plaintiffs' Motion tO Sever and Motion. for Entry of Final Judgment. It ;XSI hereby ORDERD

that all causes of action asserted by Pl.aitiff against Patricia Michelle Rose shall. hereby be

severed from Cause No. 12C482 aL2. It is further, ORDERED that all claims and causes of

action asserted by Plaintiff against Patricia Michelle Rose shall be docketed as Cause No.

12482 ...L42-A. and same shall be styled "Crystal Bingham Hernandez           V.   Patricia

Michelle Rose."
       The'instrw.ents listed on Exhibit "A4' are to be copied by the Clerk from Cause No.

12C482-L2 and shall be flied in Cause No. 12C482 -L2-. A ,styled 'CrystaI Bingham

Hernandez v. Patricia Michelle Rose."

       It is further ORDERED that all costs for copying the instruments in Exhibit. "A" to be

tiled in Cause No. 12C482 -L2- A which are designated in theO.der of Severance and Entry of
Final Judgment are to be paid by Plaintiff as court cost.

       All relief not expressly granted in this judgment is detiled.. The Court further adopts its

January 8, 2015 Order dismissing all of Plaintiff's claims and causes of actions against Tiffany
•PølIey and mnccwporates said Order under Cause No. I •C42—L2 herein making it a Final

Judgment from whieii appeal: can be taken.



       SIGNED on this                MAR 2 j 2015




                                     PRESIDING JUDOg
                                                                                    Filed for Record
                                                                                    1/26/2015 2:52:48 PM
                                                                                    Elizabeth McGill, County Clerk
                                                                                    Tom Green County, Texas
                                                                                    1 2C482-L2
                                                                                    Reviewed by:
                                     CAUSE NO. 12C482-L2                            Jesse Hickman
                                                                                     Deputy
CRYSTAL BINGHAM HERNANDEZ,                       § IN THE COUNTY COURT AT LAW
    Plaintiff,                                   §
                                                 §
V.                                               § OF
                                                 §
PATRICIA MICHELLE ROSE, and                      §
TIFFFNY POLLEY,                                  §
     Defendants.                                 § TOM GREEN COUNTY, TEXAS

                    PLAINTIFF'S REQUEST FOR FINDINGS OF FACT
                            AND CONCLUSIONS OF LAW

TO THE HONORABLE JUDGE OF SAID COURT:

      NOW COMES Plaintiff Crystal Bingham Hernandez, pursuant to Rule 296 of the
Texas Rules of Civil Procedure, and requests the Court to enter written Findings of Fact and
Conclusions of Law.



       A.     Plaintiff files this request within 20 days of the date the Court signed the Order on
January 8, 2015 Granting Defendant's Tiffany Polley's Motion to Dismiss and Motion for
Sanctions.

      B.      Plaintiff requests the Court to enter written Findings of Fact and Conclusions of
Law and mail copies to all parties.

                                              Respectfully Submitted,

                                              The Law Offices of Rick DeHoyos, PLLC
                                              502 South Irving Street
                                              San Angelo, Texas 76903
                                              Telephone: (325) 658-8000
                                              Facsimile (325) 227-6913



                                              Rick DeHoyos
                                              State Bar No. 056440b
                                              rick(iidehoyoslawlirm.com
                                              ATTORNEY FOR PLAINTIFF
                               CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing Motion was served on all
counsel of record on this       day of January, 2015 as follows:

Vii Fax Transmission
Kirk D. Willis
The Willis Law Group, Pi.LC
10440 N. Central Expy., Suite 520
Dallas, TX 75231
Fax No.: (214) 736-9994




                                           Rick DeHoyos




                                              2
                                          CAUSE NO. 12C4821-2

CRYSTAL BINGHAM HERNANDEZ                           §                 IN THE COUNTY COURT OF LAW
   Plaintiff                                       §
                                                   §
 VS                                               §                                      NO.2
                                                   §
                                                  §
PATRICIA MICHELLE ROSE,                           §                                                   -
AND TIFFANY POLL?                                 §               TOM GREEN COUNTY, TAI               01      -
   Defendants
                                                                                            rn        CO      CD
                                                                                                     -        -
                                                                                                     r)
                                                                                                     —    o
                                                                                            rrnc
                                          STATEMENT OF FACTS                                                  C)
                                                                                                     :—
                                                                                                              CD
                                                                                            >C   g   (J
   1. Plaintiff filed lawsuit on September 17, 2012.                                        U)



   2.   On January 9, 2013 Kirk Willis Attorney filed answer for Defendant Tiffany Polly.

   3.   Motion to Compel filed by Defendant Tiffany Polly on July 8, 2013.

   4.   September 30, 2013 Agreed Order granting Defendant Tiffany Polly's Motion to Compel

        requiring Plaintiff to produce certain discovery documents.

   5.   June 6, 2014 Defendant Tiffany Polly filed Motion to Dismiss for Plaintiff's failure to produce

        discovery.

   6.   October 7, 2014 Hearing held with Benton Williams, attorney with Kirk Willis' law firm on

        Motion to Dismiss. Plaintiff given until November 10, 2014 to produce documents requested on

        March 19, 2013 Discovery Motion or Court would rule on Motion to Dismiss.

   7.   January 8, 2015 Hearing held with Benton Williams attorney for Defendant Tiffany Polly and Rick

        Dehoyos, attorney for Plaintiff Crystal Bingham Hernandez. Court found some Discovery

        documents/information still not produced and granted Motion to Dismiss Plaintiffs case.
                                               CONCLUSIONS OF LAW

        Pursuant to Rule 215.2 of the TEXAS RULES OF CIVIL PROCEDURE, if a party fails to comply with

proper discovery requests or to obey an order to provide or permit discovery, the Court in which the

action is pending may, after notice and hearing, make such orders in regard to the failure as are just, and

among others the following:

        1.   An order disallowing any further discovery of any kind or of a particular kind by the

             disobedient party;

        2.   An order charging all or any portion of the expenses of the discovery or taxable court costs

             or both against the disobedient party or the attorney advising him;

        3.   An order that the matters regarding which the order was made or any other designated

             facts shall be taken to be taken to be established for the purposes of the action in

             accordance with the claim of the party obtaining the order;

        4.   An order refusing to allow the disobedient party to support or oppose designated claims or

             defenses, or prohibiting him from introducing designated matters in evidence;

        5.   An order striking out pleadings or parts thereof, or staying further proceedings until the

             order is obeyed, or dismissing with or without prejudice the action or proceedings or any

             part thereof, or rendering a judgment by default against the disobedient party.

See TRCP §215.2



                                      FEB 12 2015
SIGNED this _______ day of                                     1 2015




PRESIDING JUDGE
                                                                                         Filed for Record
                                                                                         2/20/2015 1:45:56 PM
                                                                                         Elizabeth McGill, County Clerk
                                                                                         Tom Green County, Texas
                                                                                         1 2C482-L2
                                                                                         Reviewed by:
                                      CAUSE NO. 12C482-L2                                Renea Kennedy
                                                                                         Deputy
CRYSTAL BINCIIAM HERNANDEZ,                         §        IN THE COUNTY COURT AT LAW
    Plaintiff,                                      §
                                                    §
V.                                                  §        OF
                                                    §
PATRICIA MICHELLE ROSE, and                         §
TIFFFNY POLLEY,                                     §
     Defendants.                                    §        TOM GREEN COUNTY, TEXAS

               PLAINTIFF'S REQUEST FOR ADDITIONAL OR AMENDED
                  FINDINGS OF FACT AND CONCLUSIONS OF LAW

TO THE HONORABLE JUDGE OF SAID COURT:

       NOW COMES Plaintiff, Crystal Bingham Hernandez, pursuant to Rule 298 of the
Texas Rules of Civil Procedure, and requests the Court to enter Additional or Amended written
Findings of Fact and Conclusions of Law.

                                                    I.

       A.      Plaintiff files this request within 10 days of the date the Court issued its original
Findings of Fact and Conclusions of Law on February 12, 2015. Accordingly, this Court's
additional or amended Findings of Fact and Conclusions of Law are due on March 2,2015.

      B.      Plaintiff requests the Court to specify on statement of Facts No. 7 what
documents/information Plaintiff failed to produce in discovery.

        C.      Plaintiff requests the Court to specify on statement of Facts No. 7 whether the
Court's order dismissing plaintiffs case applied to plaintiff's entire case or whether the dismissal
was a partial dismissal of plaintiff's claims against Tiffany Polley only.


       Plaintiffs Proposed Finding of Fact No. 7.

       "On January 8, 2015 Hearing held with Benton Williams attorney for Defendant
Tiffany Policy and Rick DeHoyos, attorney for Crystal Bingham Hernandez. The Court
found some discovery documents/information still not been produced and granted
Defendant's Motion to Dismiss Plaintiffs case as against Tiffany Policy only and plaintiffs
claims against Patricia Michelle Rose were not dismissed and continue in this Court's
docket. Specifically, Court found a properly executed affidavit was not produced in that
plaintiff did not 1111 in a blank indicating the amount health insurance had paid on
plaintiffs medical bills. The Court found that the plaintiff attached documents from the
health insurance company that contained an explanation of benefits and handwritten notes
and this was insufficient compliance with the Court's prior order."


                                               Page 1 of 3
       D.      Plaintiff also requests the Court to specify its conclusions of law in dismissing the
case. The present Conclusions are merely a recitation of Rule 215.2 of the Texas Rules of Civil
Procedure which allows for dismissal among other available sanctions. This Court should specify
what provision it relied on to dismiss Plaintiff's case.

       Plaintiff's Proposed Conclusion of Law:

       This Court entered an order September 30, 2013 requiring plaintiff to produce
certain documents/information to the defendant.
       On October 30, 2014 this Court verbally warned plaintiff that failure to comply with
the Court's previous Order could result in a dismissal.

        Plaintiff continued to fail to produce some documents and information she was
required to produce and on January 8, 2015, this Court entered an Order dismissing
plaintiff's causes of action pursuant to Rule 215.2(5) of the Texas Rules of Civil Procedure
which states:

                   ,if a party fails to comply with proper discovery requests or to obey an
       order to provide or permit discovery, the Court in which the action is pending may,
       after notice and hearing, make such orders in regard to the failure as are just, and
       among others the following:

       (5) An Order ............................dismissing with or without prejudice the action
or proceedings or any part thereof, or rendering a judgment by default against the
disobedient party.


                                              Respectfully Submitted,

                                              The Law Offices of Rick DeHoyos, PLLC
                                              502 South Irving Street
                                              San Angelo, Texas 76903
                                              Telephone: (325) 658-8000
                                              Facsimile: (325) 227-6913



                                             1Ik DeiIoyos
                                        State Bar No. 05644085
                                        rickdehoyoslawfinn.coTn
                                        ATTORNEY FOR PLAINTIFF
                                CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing Motion was served on all
counsel of record on this 20th day of February, 2015 as follows:



                                             Page 2 of 3
Via Fax Transmission
Kirk D. Willis
Benton Williams
The Willis Law Group, PLLC
10440 N. Central Expy., Suite 520
Dallas, TX 75231
Fax No.: (214) 736-9994



                                    ri    Rick DeHoyos   11W




                                         Page3 of3
                                                              CAUSE NO. 12C482-12

CRYSTAL BING HAM HERNANDEZ,                                     §          IN THE COUNTY COURT AT LAW 2
Plaintiff,                                                     §
                                                              §
                                                             §
V.                                                           §            OF
                                                             §
PATRICIA MICHELLE ROSE, and                                   §                                            rr
TIFFANY P011EV                                                §
Defendants                                                   §            TOM GREEN COUNTY, TEXAS



                                                                                                      rn
                                               AMENDED FINDINGS OF FACTS AND CONCLUSIONS OF LAW

        Amended finding of fact no. 7



        On January 8, 2015 Hearing held with Benton Williams attorney for Defendant Tiffany Polley and Rick Dehoyos,
attorney for Crystal Bingham Hernandez. Tha Court found some discovery documents/information still had not been
produced and Granted DEFENDANT'S Motion to Dismiss Plaintiffs case as against Tiffany Polley only and Plaintiff's
claims against Patricia Michelle Rose were not dismissed and continue in this Court's docket.



        Amended Conclusion of Law



        This Court entered an order September 30, 2013 requiring Plaintiff to produce certain documents/information
to the Defendant.
        On October 30, 2014 this court verbally warned Plaintiff that failure to comply with the Court's previous order
could result in a dismissal.

        Plaintiff continued to produce some documents and information she was required to produce and on January 8,
2015 this Court entered an order dismissing Plaintiff's causes of action pursuant to rule 215.2(5) of the Texas Rules of
Civil Procedure which states


                       if a party fails to comply with proper discovery requests or to obey an order to provide or permit
        ...................,



discovery, the Court in which the action is pending may, after notice and hearing, make such orders in regard to the
failure as are just, and among others the following:

        (5) An Order                dismissing with or without prejudice the action or proceedings or any part thereof,
                               ...........................



or rendering a judgment by default against the disobedient party.

        MAR 0 92015
Date

                                                                                    yQ
                                                                                                      Judge PENNY ROBERTS
                                                                                     Filed for Record
                                                                                     3/19/2015 2:25:11 PM
                                                                                     Elizabeth McGill, County Clerk
                                                                                     Tom Green County, Texas
                                                                                     1 2C482-L2
                                                                                      Reviewed by:
                                     CAUSE NO. 12C482-1,2                             Debbie Smith
                                                                                       Deputy

CRYSTAL BINGHAM HERNANDEZ, § IN THE COUNTY COURT AT LAW
     Plaintiff,              §
                             §
V.                           § OF
                             §
PATRICIA MICHELLE ROSE, and  §
TIFFFNY POLLEY,              §
     Defendants.             § TOM GREEN COUNTY, TEXAS

                       PLAINTIFF'S OBJECTION TO AMENDED
                   FINDINGS OF FACT AND CONCLUSIONS OF LAW

TO THE HONORABLE JUDGE OF SAID COURT:

       NOW COMES Plaintiff, Crystal Bingharn Hernandez, pursuant to Rule 298 of the
Texas Rules of Civil Procedure, and requests the Court to enter Additional or Amended written
Findings of Fact and Conclusions of Law and further objects to the Amended Findings of Facts
and Conclusions of Law signed by this Court on March 9, 2015.
                                                   1.
       A.      Plaintiff files this request within 10 days of the date the Court issued its Amended
Findings of Fact and Conclusions of Law on March 9, 2015.
       B.      Plaintiff requests the Court to specify on statement of Facts No. 7 what
documents/information Plaintiff failed to produce in discovery. The following language should
be added:

       Plaintiff's Proposed Finding of Fact No. 7. -

              .............. Specifically, Court found a properly executed affidavit was not
produced in that plaintiff did not fill in a blank Indicating the amount health insurance had
paid on plaintiffs medical bills. The Court found that the plaintiff attached documents
from the health insurance company that contained an explanation of benefits and
handwritten notes and this was insufficient compliance with the Court's prior order."


                                              Respectfully Submitted,

                                             The Law Offices of Rick Delloyos, PLLC
                                             502 South Irving Street
                                             San Angelo, Texas 76903
                                             Telephone: (325) 658-8000
                                             Facsimile: (325) 227-6913




                                             Page 1 of 2
                                                     -   -




                                            Rick DeHoyos
                                            State Bar No. 05644085

                                       ATTORNEY FOR PLAINTIFF
                               CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing Motion was served on all
counsel of record on this            of March, 2015 as follows;

Via Fax Transmission
Kirk D. Willis
Benton Williams
The Willis Law Group, PLLC
10440 N. Central Expy., Suite 520
Dallas, TX 75231
Fax No.: (214) 736-9994




                                            Rick Deiloyos
                                                                     J




                                           Page 2 of 2
                                                                                                                           16
                                                                             Exhibits January 8, 2015




1                                                                                 03/19''013 15:20        #851 P.008/021
         Eros:

2

3



     1
4
                                 AUTHORIZATION FORM FOR RELEASE OF PROTECTED
                                                    HEALTH INFORMATION
5

6
                          A.      I, CRYSTAL BINGILAM I-IERNANDEZ, hereby authorize THE WILLIS LAW
                  GROUP, PLLC. or their authorized representative, to obtain and disclosure the protected
 7
                  health information described below for the following specific purposes;

 8                               I-      To facilitate the investigation and evaluation of the health care claim
                                 described in the accompanying Notice of Health Care Claim; or

                                 2.     Defense of the litigation filed under Cause No. 1 2-C482-12, styled Crystal
10                               Bingham Hernandez v. Patricia Michelle Rose and Tiffany Polley, pending in the
                                 County Court at Law No. 2 of Torn Green County, Texas.
11
                          B.     The health information to be obtained, used or disclosed extends to and includes
12                the verbal as well as the written and is specifically described as follows:

13                               I      The health information in the custody of the physicians or health care
                                providers who have examined, evaluated or treated CRYSTAL BINGUAM
                                HERNANDEZ in connection with the injuries alleged to have been sustained in
14
                                the incident on        -?—-/O        . This authorization shall extend to any
                                additional physicians or health care providers that may in the future evaluate,
15
                                examine or treat CRYSTAL BINOHAM HERNANDEZ for injuries alleged in
                                connection with the claim.
16
17                              2.      The health information in the custody of the attached physicians or health
                                care providers who have examined, evaluated or treated CRYSTAL BJNGIIAM
                                HERNANDEZ during a period commencing five years prior to the incident made
18                              the basis of the claim.

19                       C.     Excluded Health Information. The following constitutes a list of physicians or
                 health care providers possessing health care information concerning to which this authorization
20               does not apply because I contend that such health care information is not relevant to the damages
                 being claimed or to the physical, mental or emotional condition of CRYSTAL BINOHAM
21               }IERNANDEZ arising out of the claim made the basis of the claim: None.

                      D.   The perso&is or class of persons to whom the health information of CRYSTAL
22
                 I3ENGHAM HERNANDEZ will be disclosed or who will make use of said information are:

23
                 DEFENDANTS FIRST REQUEST FOR PRODUCTION TO PLAINTIFF                                      PACE 6
                 952.0313
24

25



                                           Sharla Bredemeyer, CSR, RPR
                                                                                                                        17
                                                                            Exhibits January 8, 2015




 1                                                                             03/191'13 15:20
     Frot:                                                                                              #851 P009/021

 2

 3

 4
                                     Any and all phyticians or health care providers providing care or
 5                            treatment to CRYSTAL BINCHAM HERNANDEZ;

                             2.     Any liability insurance entity providing liability insurance coverage or
 6
                             defense to PATRICIA MICHELLE ROSE AND TIFFANY PULLEY;
 7
                             3.      Any consulting or testifying experts employed by or on behalf of
                             PATRICIA MICHELLE ROSE AND TIFFANY POLLEY with regard to
 8                           Plaintiff's litigation;

 9                           4.     Any attorneys (including secretarial, clerical or paralegal staff) employed
                             by or on behalf of PATRICIA MICHELLE ROSE AND TIFFANY POLLEY;
10                           and

11                          5.     Any trier of the law or facts relating to any suit filed seeking damages
                            arising out of the medical care or treatment of CRYSTAL BINGHAM
12                          HERNANDEZ.

13                  E       This authorization shall expire upon resolution of the claim asserted or at the
              conclusion of any litigation instituted in connection with the subject matter of the claim,
14            whichever occurs sooner.

                     F.      I understand that, without exception, I have the right to revoke this authorization
15
             in writing. I further understand the consequence of any such revocation as set out in Section
             74.052, CIVIL PRACTICE AND REMEDIES CODE.
16
                    0.     1 understand that the signing of this authorization is not a condition for continued
17           treatment, payment, enrollment or eligibility for health plan benefits.

18                   H. I understand that information used or disclosed pursuant to this authorization may be
             subject to re-disclosure by the recipient and may no longer be protected by federal HIPAA
19           privacy regulations.

20

21

22

23
             DEFENDANT'S FIRST REQUEST FOR PRODUCTION TO PLAINTIFF                                      FACE 7
             952.1)313
24

25




                                      Sharla Bredemeyer, CSR, RPR
                                                                                                       18
                                                                     Exhibits January 8, 2015




1
     From,                                                            03/1P013 15:20   #851 P016/021

2

3

 4                   Dated:


 5

 6                                                  STA. INGf-IAM HER NDEZ.

                                               SOCIAL SECURITY NO.:    L[
 7

 8
                                               DATE OF BIRTH:               1 '1
 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23
             DEFENDANT'S FIRST REQUEST FOR PRODJCTION TO PLAINTIFF                     PACE: $
             952.0311
24

25




                                    Sharla Bredemeyer, CSR, RPR
                             NUMBER 13-14-00242-CV

                            COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

MARIA DEL ROSARIO CORTINAS,                                                    Appellant,

                                             V.


NOE LOPEZ,                                                                      Appellee.


                  On appeal from the 24th District Court of
                          Goliad County, Texas.


                         MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Rodriguez and Garza
               Memorandum Opinion by Justice Garza

      In this appeal, appellant Maria Del Rosario Cortinas argues that the trial court erred

in dismissing her personal injury suit against appellee, Noe Lopez, as a "death penalty"

discovery sanction. We reverse and remand.

                                     I. BACKGROUND

      Cortinas sued Lopez for injuries she suffered as a result of a motor vehicle collision
that took place on September 28, 2008, in Brownsville, Texas. Cortinas alleged in her

original petition, dated September 23, 2010, that Lopez negligently rear-ended her

vehicle, causing her to suffer "excruciating pain" and "extensive physical and emotional

injuries," including a herniated disc in her neck, and necessitating her hospitalization at

Valley Baptist Medical Center.

           Lopez was insured by Reinsurance Company of America ("RCA") at the time of

the collision and at the time the lawsuit was filed; however, RCA subsequently became

insolvent and bankruptcy proceedings were instituted. Accordingly, on June 21, 2011,

Lopez notified the trial court of RCA's bankruptcy, that RCA had been designated an

"impaired insurer" by the Texas Commissioner of Insurance, and that the Texas Property

and Casualty Insurance Guaranty Association ("TPCIGA") was therefore obligated by the

Texas Property and Casualty Insurance Guaranty Act (the "Guaranty Act") to defend

Lopez. See TEX. INS. CODE ANN. § 462.309 (West, Westlaw through 2013 3d C.S.). Lopez

further notified the trial court that the Guaranty Act mandates a six-month stay of

proceedings "[t]o permit [TPCIGA] to properly defend [the] pending cause of action . . .

Id. § 462.309 (West, Westlaw through 2013 3d C.S.). Pursuant to the statute, the trial

court proceedings were stayed from June 8, 2011 to December 8, 2011.

       On April 9, 2012, Lopez served discovery requests upon Cortinas, including the

following requests for production:

       20.        Provide a true and correct copy of the declaration page or pages for
                  all policies of Insurance listed in Interrogatories to Plaintiff.[']

       21.        Provide a letter from your employer and/or employer of your family
                  member stating the insurance coverages and benefits available to
                  each Plaintiff through that employer, if any.

       1
           No interrogatory responses appear in the record.


                                                     2
        22.       An executed affidavit regarding other insurance in substantially the
                  same form as that attached hereto in Exhibit A.

In response to request number 20, Cortinas provided a copy of her Texas Auto Insurance

identification card. In response to request number 21, Cortinas provided a copy of her

Valley Baptist Health Plans health insurance identification card. In response to request

number 22, Cortinas attached an affidavit stating that she was covered by an auto

insurance policy with carrier "Insurance Corner" but that she has not received any benefits

from that policy as a result of the September 2008 collision. 2 The affidavit stated, "For all

of the policies of insurance I have listed above or in Exhibit A, I have attached a correct

copy of the declarations pages, if available"; but no declarations pages were attached.

The affidavit made no specific mention of Cortinas's health insurance policy.

        Lopez then filed a motion to compel discovery in which he complained that

Cortinas's responses were incomplete because she did not produce a declarations page

"for each policy of insurance that would be applicable to her claims." Lopez argued in his

motion that this omission was "vital" because, under the Guaranty Act, a plaintiff seeking

recovery from an individual defended by TPCIGA must first exhaust her rights under any

other applicable insurance policies. See TEX. INS. CODE ANN. § 462.251 (West, Westlaw

through 2013 3d C.S.). 3 After a hearing on September 18, 2012, the trial court granted



        2  It is apparent from the record that Insurance Corner is not an insurance carrier but, rather,
Cortinas's insurance agent.
            Section 462.251(a) of the Guaranty Act provides:
        Any person who has a claim under an insurance policy, other than an impaired insurer's
        policy, and whose claim arises from the same facts, injury, or loss giving rise to a claim
        against an impaired insurer or the insurer's insured, must first exhaust the person's rights
        under the insurance policy, including:
        (1)       a claim for benefits under a workers' compensation insurance policy or a claim for
                  indemnity or medical benefits under a health, disability, uninsured motorist,

                                                      3
the motion to compel and ordered Cortinas to "respond completely to Defendant's

Request for Production Numbers 20 and 21 on or before October 2, 2012." Cortinas then

produced a supplemental response in which she stated that she was not in possession

of any documents responsive to the request. 4

         Lopez subsequently filed a motion to dismiss as a sanction against Cortinas for

her alleged failure to comply with the trial court's discovery order.                      See TEX. R. Civ. P.

215.2(b)(5). At a hearing on April 30, 2013, Cortinas's counsel gave the following

explanation for why she had not produced the requested documentation:

         This is the issue we're having, Your Honor, and it boils down to this. In this
         accident my client had the very same insurance company that the defendant
         had. In other words, she had the same company that went out of business.
         She has gone to the—to Insurance Corner where she purchased her policy.
         She's asked for a copy of her dec page. She's written letters to the former
         company that's now out of business. They have told her that they cannot
         get a dec page for her because they're out of business and they don't even
         know where [their] files are.

Cortinas's counsel informed the court that he practiced due diligence in an attempt to

obtain the declarations page for Cortinas's RCA policy, but that his efforts were to no

avail.

         In reply, Lopez's counsel did not argue that Cortinas should have produced the

declarations page for her RCA policy. Instead, he stated:

         One of the—one of the problems in this case is that this policy with respect
         to [RCA] is just one of multiple policies that's available to the plaintiff. One

                  personal injury protection, medical payment, liability, or other insurance policy; and
         (2)      the right to defense under the insurance policy.
TEX. INS. CODE ANN. § 462.251 (West, Westlaw through 2013 3d CS.). TPCIGA and the defendant it
represents are then entitled to "a full credit for the amount of the full applicable limits" of any other applicable
policy, even if the plaintiff failed to timely file a claim. See Id. §§ 462.252, 462.253 (West, Westlaw through
2013 3d C.S.).
         "Neither the September 18, 2012 hearing transcript nor Cortinas's supplemental response appear
in the record.

                                                         ru
       of the policies that's available is a health insurance policy. That health
       insurance policy has made payments on behalf of plaintiff's treatment. In
       the affidavit regarding other insurance with respect to that health insurance
       policy, the amount that the plaintiff states was paid by health insurance is
       zero. But, Your Honor, we've received an affidavit—a billing records
       affidavit that indicates that United Health Care, the health insurer for the
       plaintiff has, in fact, paid something in the amount of $893. . . . We do
       understand that this—that Valley Baptist Medical Center has been paid by
       plaintiff's health insurance carrier, but we haven't been able to receive those
       declarations policies.

Lopez's counsel asked the court to dismiss the case or, in the alternative, to abate the

case for twenty days to allow Cortinas to obtain the necessary documents and, if she did

not comply, to dismiss the case after that time period expired.

       After the parties concluded their arguments, Cortinas's counsel informed the trial

court that he was having difficulty contacting his client and may need to file a motion to

withdraw. The trial court did not rule on Lopez's motion to dismiss but abated the case

for thirty days to allow Cortinas's counsel to continue his attempts to both contact Cortinas

and obtain the documentation desired by Lopez.

       The trial court held another hearing on August 13, 2013. Lopez's counsel argued

that Cortinas "has not exhausted any benefits through [her] health insurance," "[h]as not

provided proof that that insurance coverage has been exhausted, and has not—still has

not presented any declarations pages for her auto insurance." Cortinas's counsel stated

that he was able to contact his client and would not be withdrawing from the case. He

informed the trial court that, as to the RCA policy declarations page, "I'm unable to get

[them] because there's no office. . . . [T]he company is gone, so that's an issue that I'm

not sure how we're going to resolve." As to the health insurance policy, Cortinas's counsel

stated that he requested explanation of benefits ("EOB") forms from Cortinas's insurer on

July 26, 2013, and that "[m]y understanding is that they're on their way."


                                              5
        Cortinas's counsel further represented to the court that Lopez's counsel also

sought a copy of a release of assignments Cortinas made upon her admission to Valley

Baptist Medical Center. With respect to that document, counsel stated:

        We are having difficulty having the officials at Valley Baptist understand
        what it is, number one, and, number two, put a signature on it. . . . So
        basically my response is this, Your Honor, I understand [Lopez's counsel]
        wants their homework and he wants it now, but we have—we have
        worked—we've put a lot of manpower in this, a lot of attorney time, and a
        lot of assistant time trying to get the responsive documents, but these
        documents are coming from other companies, from other parties, and we're
        doing what we can to get this case resolved as well.

The trial court stated that he was not inclined to grant the motion to dismiss at that time

but would instead grant Cortinas ninety additional days to comply, during which time the

case would be abated. The court stated, however, that "[i]f you're in here still telling me

you can't get the documents and the Insurance Code says you need the documents, most

likely I will be dismissing at that point." Cortinas's counsel replied, "I understand."

        On November 13, 2013, the trial court rendered an order stating that "any and all

claims asserted against Defendant shall be dismissed with prejudice on December 12,

2013, unless Plaintiff obtains and furnishes a valid Release of Assignment of Lien from

Plaintiff's healthcare providers and obtains and furnishes any and all Explanation of

Benefit documentation from Plaintiff's health insurance carrier. 115

        On December 11, 2013, Lopez filed a motion requesting entry of an order granting

its previously-filed motion to dismiss. In the motion, Lopez stated that Cortinas had not

provided any EOB forms from her health insurance carrier. Lopez acknowledged that

Cortinas had provided a "Release of Assignments" executed by a hospital representative,



          The order indicates, and Cortinas states on appeal, that a third dismissal hearing was held prior
to the entry of this order. The record contains no transcript of any such hearing.
but he argued that this document was not compliant with the November 13 order because

it was not a "Release of Assignment of Lien." 6 The trial court granted Lopez's motion on

December 18, 2013, rendering a final judgment dismissing Cortinas's lawsuit with

prejudice.

       Cortinas then filed a motion to reconsider accompanied by affidavits detailing the




       6
           The "Release of Assignments' document was prepared by Cortinas's counsel and presented to
the hospital for execution. The document, a copy of which was attached to Lopez's motion for entry of
order, states as follows:
       VALLEY BAPTIST MEDICAL CENTER BROWNSVILLE (the "Hospital") rendered services
       to [Cortinas] on or about September 26, 2008. The services resulted from a motor vehicle
       collision that occurred on or about that date. As of the date of this instrument, the current
       balance owed is $188.64.
       VALLEY BAPTIST MEDICAL CENTER . . . is the legal and equitable holder of a hospital
       lien in the above-referenced amount, which has been duly recorded in Cameron County,
       Texas.
       VALLEY BAPTIST MEDICAL CENTER, as a condition of its services rendered to
       [Cortinas], required her to assign and transfer "to the hospital, and hospital based
       physicians (i.e., radiologists, pathologists, anesthesiologists, emergency department
       physicians) all rights, title and interest in all benefits/monies payable for serves / supplies
       rendered, including but not limited to group medical I indemnity / self-insured / ERISA
       benefits / coverage, PIP, UIM / UM, auto / homeowner insurance, and all causes of action
       against any party or entity that may be responsible for payment of benefits / monies
       regardless of whether or not [Cortinas] ultimately settle[s her] claim with a non admission
       liability provision."
       VALLEY BAPTIST MEDICAL CENTER, also as a condition of its services rendered to
       [Cortinas], required her to assign and transfer to the hospital "any and all claims, demands,
       suits, remedies, guarantees, liens, and /or causes of action, at law or in equity, either in
       contract or in tort, statutory or otherwise, as well as any other claim, in whole or in part,
       which [she] may now have or may hereafter hold or possess, known or unknown, on
       account of, growing out of, relating to or concerning, whether directly or indirectly,
       proximately or remotely, any acts, omissions, events, transactions or occurrences that
       have occurred or failed to occur which resulted in injuries for which the hospital has
       provided and/or will provide medical goods and services to [her]."
       VALLEY BAPTIST MEDICAL CENTER further required [Cortinas] to assign and transfer
       to the hospital, "any and all rights (including appeal rights), title and interest in any and all
       benefits, monies or other form of compensation paid or to be paid on [her] behalf as a result
       of this injury / illness."
       VALLEY BAPTIST MEDICAL CENTER does hereby release and forever discharge all
       assignments made by [Cortinas] to the hospital as described above, without altering or
       affecting in any way its rights with respect to the duly recorded hospital lien as described
       above.
(Emphasis added.)


                                                       rA
various efforts made by Cortinas's counsel and his staff to obtain the required documents.

Cortinas's counsel averred in his affidavit, among other things, that he contacted the

hospital's compliance director; that the compliance director "indicated that she would

require the express approval of the hospital's legal department in order to sign the type

of release we needed"; that "to speed up the process, I prepared my own form for a

Release of Assignments for the legal department's review and signature"; and that "I

received the executed Release of Assignments form and produced it to Defense counsel

immediately upon my receipt, which was within the court-imposed deadline." The motion

to reconsider was also accompanied by copies of the police report and hospital admission

form, both dated September 26, 2008. At a hearing on March 25, 2014, Cortinas's

counsel stated, among other things, that he contacted Cortinas's health insurance carrier

and was informed that there would be no EOB forms generated because Cortinas's

claims were being denied. The trial court denied the motion to reconsider the next day,

and this appeal followed.

                                      II. DISCUSSION

A.    Applicable Law and Standard of Review

      So-called "death penalty sanctions" are authorized by rule 215.2(b) of the Texas

Rules of Civil Procedure, which provides in part:

      If a party. . . fails to comply with proper discovery requests or to obey an
      order to provide or permit discovery, . . . the court in which the action is
      pending may, after notice and hearing, make such orders in regard to the
      failure as are just, and among others the following:



             (5)    an order striking out pleadings or parts thereof, or staying
                    further proceedings until the order is obeyed, or dismissing
                    with or without prejudice the action or proceedings or any part
                     thereof, or rendering a judgment by default against the
                     disobedient party.

TEX. R. Civ. P. 215.2(b). Whether the imposition of sanctions is "just," as required by the

rule, 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. . .. 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.

TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991).

       Moreover, "[d]iscovery sanctions cannot be used to adjudicate the merits of a

party's claims or defenses unless a party's hindrance of the discovery process justifies a

presumption that its claims or defenses lack merit."      Id. at 918. For example, "if a party

refuses to produce material evidence, despite the imposition of lesser sanctions, the court

may presume that an asserted claim or defense lacks merit and dispose of it."         Id. But

"[s]anctions which are so severe as to preclude presentation of the merits of the case

should not be assessed absent a party's flagrant bad faith or counsel's callous disregard

for the responsibilities of discovery under the rules."    Id. "Even then, lesser sanctions

must first be tested to determine whether they are adequate to secure compliance,

deterrence, and punishment of the offender."     Chrysler Corp. v. Blackmon, 841 S.W.2d

844, 849 (Tex. 1992).

      A ruling on a motion for sanctions is reviewed for abuse of discretion, Cire v.

Cummings, 134 S.W.3d 835, 838 (Tex. 2004), as is a ruling on a motion for new trial.        In

re R.R., 209 S.W.3d 112, 114 (Tex. 2006). The test for an abuse of discretion is not
whether, in the opinion of the reviewing court, the facts present an appropriate case for

the trial court's action, but "whether the court acted without reference to any guiding rules

and principles." Cire, 134 S.W.3d at 838-39. We reverse only if the ruling was arbitrary

or unreasonable. Id. at 839.

B.      Analysis

        By her first issue, Cortinas contends that the trial court cannot require her "to create

new documents or produce items that are not in her custody, possession, or control." We

construe this issue as challenging the propriety of the discovery requests and discovery

orders with which Cortinas was deemed to have not complied.

        In response to Cortinas's first issue, Lopez contends that Cortinas waived any

complaint about the discovery requests themselves (as opposed to the sanctions

imposed for failing to comply with those requests) because she did not object to them.

We agree. A party objecting to a request for written discovery must make that objection

"in writing—either in the response or in a separate document—within the time for

response." TEX. R. Civ. P. 193.2(a). "An objection that is not made within the time

required . . . is waived unless the court excuses the waiver for good cause shown." TEX.

R. Civ. P. 193.2(e). Here, Cortinas did not assert any objection to Lopez's discovery

request until she argued in her motion to reconsider that the request impermissibly asks

for documents not in her custody, possession, or control. Moreover, she did not object to

the trial court's December 13, 2013 order—which, for the first time, required production

of a "Release of Assignment of Lien" 7—until the deadline for production as stated in that



            We note that, according to the record, Lopez never served any formal discovery request for EOB
forms or a Release of Assignment of Lien" form. Further, the Guaranty Act does not appear to require that
a plaintiff produce any such forms in order to bring suit against a TPCIGA-defended party. See generally
Id. §§ 462.00 1—.351. Because the record does not contain a transcript of the hearing apparently held prior

                                                   10
order had passed. Finally, Cortinas did not attempt to establish "good cause" for her

failure to timely object to the discovery requests and orders.                   See Id. Accordingly, we

overrule Cortinas's first issue as waived.

         By her second issue, Cortinas contends that dismissal was improper because she

"did not abuse the discovery process while exercising due diligence in attempting to

comply with the court's order." Specifically, she contends that she showed "good

cause . . . for her inability to obtain, create, and produce the documents sought" and that

"the sanction was overly severe." 8 Lopez contends, on the other hand, that Cortinas had

"ample opportunity to comply" with the requests and orders and that she "failed to avail

herself of numerous opportunities over two years to avoid dismissal."

         We agree with Cortinas that the sanctions imposed were unjust in light of all the

circumstances. It is true, as Lopez notes, that the dismissal order came over five years

after the accident made the basis of the suit. However, according to the record, the first

formal discovery request was made by Lopez on April 9, 2012, after the mandatory six-

month stay expired. Cortinas timely complied with that request. She did not include a

declarations page for her auto insurance policy; however, counsel explained at the April

30, 2013 hearing that this was because her insurer—the same insurer that had covered




to the November 13, 2013 order, see supra n.5, we cannot discern why the production of these particular
documents was compelled. In any event, as set forth above, Cortinas has waived any complaint regarding
that order because she did not object to it prior to the production deadline. See TEX. R. Civ. P. 193.2.
          8 In response to Cortinas's second issue, Lopez argues that we may not consider the affidavits

Cortinas filed with her motion to reconsider in evaluating whether the trial court erred by dismissing the suit.
We agree. Because the affidavits were not before the trial court at the time the case was dismissed, we
may not consider them in determining whether dismissal was proper. Moreover, "[a] party seeking a new
trial on grounds of newly-discovered evidence must demonstrate to the trial court that," among other things,
"the evidence has come to its knowledge since the trial    ......Waffle House, Inc. v. Williams, 313 S.W.3d
796, 813 (Tex. 2010). Cortinas made no attempt to show that the facts recited in the affidavits "came to
[her] knowledge" after the December 13, 2013 dismissal.


                                                      11
Lopez—was no longer in business. Lopez's counsel did not dispute that this fact

constituted good cause for Cortinas's failure to produce the auto policy declarations page.

Instead, Lopez's counsel essentially withdrew his original request and made a new

request, not previously included in any formal written discovery, for EOBs that would show

the amount of any funds paid to the hospital under Cortinas's health insurance policy.

Later, at the August 13, 2013 hearing, Cortinas's counsel stated that he requested the

EOBs from the health insurance carrier on July 26, 2013 9 and that his "understanding"

was that the documents were "on their way." 10

        As to the "Release of Assignment of Lien" document, the record reveals much

confusion. No formal request for this document appears in the record, and it is unclear

whether or when any informal request may have been made. What is clear, however, is

that Cortinas's counsel made a diligent effort to obtain such a document from the hospital.

Counsel took it upon himself to prepare a "Release of Assignment" which provided that

the hospital was releasing and discharging all assignments Cortinas made upon her

admission. The duly executed "Release of Assignment" form was served upon Lopez

prior to the discovery deadline. Lopez took exception to the fact that the release

preserved the hospital lien, which is imposed by statute, see TEX. PROP. CODE ANN.



          Lopez emphasizes on appeal that Cortinas's counsel failed to show diligence because he first
requested EOB forms from the health insurance carrier on July 26, 2013, which was "more than a year after
they had been requested." But according to the record, the informal request for EOB forms was in fact first
made at the April30, 2013 hearing. The trial court then continued the hearing based on Cortinas's counsel's
representation that he was having trouble contacting his client. In light of this background, counsel's delay
in requesting EOB forms until July 26 does not appear unreasonable.
        10
           At the motion to reconsider hearing, cortinas's counsel explained that the health insurance
carrier would not be providing any EOBs because cortinas's claim was going to be denied anyway. Lopez's
counsel did not dispute that this fact constituted good cause for Cortinas's failure to produce the EOBs, but
again shifted the goalposts, arguing that "regardless of whether those claims may have been admitted or
denied by the insurance carrier, there should be some explanation as to why those benefits were denied or
whether those benefits were covered."


                                                     12
§ 55.002(a) (West, Westlaw through 2013 3d C.S.), but he did not cite any authority, and

we find none, establishing that Cortinas was required to show that the hospital lien was

released in order to sustain her action against Lopez. Accordingly, Cortinas's failure to

provide a "Release of Assignment of Lien," though technically a violation of the November

13, 2013 discovery order, did not support a presumption that Cortinas's claim lacks merit.

See TransAmerican, 811 S.W.2d at 917 ("Discovery sanctions cannot be used to

adjudicate the merits of a party's claims or defenses unless a party's hindrance of the

discovery process justifies a presumption that its claims or defenses lack merit.").

        Finally, there is nothing in the record showing that the trial court ever considered

the availability of sanctions less stringent than dismissal or whether such lesser sanctions

would fully promote compliance, as strictly required by the second prong of the

TransAmerican test. See Id.; see also Chrysler Corp., 841 S.W.2d at 849 (noting that

"lesser sanctions must first be tested to determine whether they are adequate"). 11 On

appeal, Lopez does not address the issue of lesser sanctions but instead relies on the

fact that, at the August 13, 2013 hearing, Cortinas's counsel acknowledged that he

"underst[oo]d" that the trial court would likely dismiss the case in ninety days if the

documents were not produced. But this remark does not show that Cortinas consented

to dismissal or that dismissal was "just"; and it has absolutely no bearing on the issue of

whether the trial court fulfilled its duty, as stated by the Texas Supreme Court, to

"consider" and "test" less stringent sanctions before imposing the "death penalty."                    See


        11
           At the motion to reconsider hearing, Cortinas's counsel suggested, as an example of sanctions
less stringent than dismissal, that the trial court could have ordered Cortinas to pay the expenses incurred
by Lopez's counsel for travel to and from the various hearings. Other examples are provided in the rule
authorizing death penalty sanctions. See TEX. R. Cv. P. 215.2(b)(5) (noting that, if a party fails to comply
with discovery requests or orders, the court may strike pleadings or stay proceedings until the order is
obeyed).


                                                     13
TransAmerican, 811 S.W.2d at 817; see also Chrysler Corp., 841 S.W.2d at 849.

Because the trial court acted without reference to these guiding rules and principles, it

abused its discretion in dismissing the case. See Cire, 134 S.W.3d at 838-39. Cortinas's

second issue is sustained.

                                    Ill. CONCLUSION

       We reverse the trial court's judgment and remand for further proceedings

consistent with this opinion.



                                                DORI CONTRERAS GARZA,
                                                Justice

Delivered and filed the
10th day of December, 2014




                                           14
