                        NUMBER 13-13-00257-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

VIVIANA SOSA, INDIVIDUALLY
AND AS REPRESENTATIVE OF
THE ESTATE OF DESTINY SOSA,
A DECEASED CHILD, AND
JESSE SOSA,                                                            Appellants,

                                          v.

UNION PACIFIC RAILROAD COMPANY
AND ERNESTO ORTEGON,                                                   Appellees.


                  On appeal from the 197th District Court
                        of Willacy County, Texas.


                        MEMORANDUM OPINION
   Before Chief Justice Valdez and Justices Benavides and Perkes
              Memorandum Opinion by Justice Perkes
      Appellants Viviana and Jesse Sosa (“Sosas”) filed a wrongful death action against

appellees Union Pacific and Ernesto Ortegon. By one issue, appellants argue the trial
court erred in granting “death penalty” sanctions against them because: (1) there is no

evidence that the Sosas were involved in, acquiesced to, condoned, ratified, or had

knowledge of any sanctionable conduct; and (2) the Sosas did not have notice of the

sanctions proceeding. We reverse and remand.

                                     I.      BACKGROUND

       On January 23, 2007, a Union Pacific train collided with a pickup truck carrying

Viviana Sosa and her unborn child. Immediately following the collision, Viviana Sosa

was taken to a hospital where doctors performed a cesarean section, in an effort to save

the baby’s life. Viviana Sosa gave birth to a baby girl, Destiny Sosa, who died two days

later. The Sosas filed suit against Union Pacific and its engineer who operated the train,

Ernesto Ortegon.1 The Sosas brought personal injury claims for Viviana’s injuries and

wrongful death claims on behalf of their daughter. Their Original Petition included the

following statement:

       This is the same Union Pacific attitude that recently resulted in an incident
       in neighboring Kennedy [sic] County involving a Union Pacific train that ran
       over and completely severed the legs of a young pregnant woman, after
       which the engineer of the offending Union Pacific train admitted to the
       investigating peace officer that “Union Pacific does not care if its trains run
       over wetbacks.”

Matias Sosa (“Matias”), the driver of the pickup truck, thereafter intervened, represented

by separate counsel.

       During the course of litigation, the train’s conductor, Frank De La Rosa, received

two telephone calls from someone named John Weir. Weir claimed that he worked for


       1 Appellants were represented by attorneys Marc Rosenthal and J. Lynn Watson of Rosenthal &

Watson, P.C.

                                                2
Union Pacific’s legal team. He told De La Rosa that the train’s horn did not sound prior

to the collision, and asked if De La Rosa wanted to change his previous statement about

the horn’s sounding.2 De La Rosa recorded his second phone conversation with Weir

and informed Union Pacific. Presented with the information about the mysterious phone

calls, appellees began investigating the source of the telephone call. The call was traced

to David Seibert, a longtime friend of one of the Sosas’ attorneys. Appellees obtained

Seibert’s phone records, which revealed that immediately before and after he made the

“John Weir” phone calls to De La Rosa, Seibert had called Marc Rosenthal.

       Sosa’s attorneys subsequently filed three motions to quash Siebert’s deposition, a

motion contending the trial court lacked jurisdiction to make rulings regarding the

deposition, a motion for sanctions against appellees, a petition for a writ of mandamus in

this Court, and a motion to reconsider the mandamus petition. Eventually, appellees

deposed Siebert who admitted that he called De La Rosa but denied that he was directed

to place the call.

       The Sosas non-suited their first lawsuit on July 21, 2008, and refiled it seven

months later. The new lawsuit was identical to the previous suit and the attorneys for

both sides signed a Rule 11 agreement in which they agreed to use the discovery from

the first case in the second case.3         As discovery progressed in the second case, another

conflict arose, this time regarding the train’s event recorder. During a hearing pertaining




       2   Contrary to his representations, Weir was not an attorney for Union Pacific.

       3 Rosenthal was less involved in the second case, and the Sosas were represented in court by

Mark Alvarado, on behalf of Rosenthal & Watson, P.C. Alvarado was the sole attorney appearing for the
Sosas at the sanctions hearing.
                                                     3
to the recorder, the trial court ordered the parties to file a joint order on matters they could

agree on, and request another hearing on matters they could not. Instead, the Sosas’

attorneys submitted a proposed order without consulting with or providing a copy of the

proposed order to appellees or their attorneys. The trial court signed the order which

required appellees to produce discovery they had never agreed to produce, and that the

trial court had never ordered appellees to produce. After the Sosas refused to withdraw

the order upon request, the trial court held another hearing on a motion to reconsider.

The trial court subsequently withdrew the discovery order.

        Appellees filed a joint motion for sanctions. The amended motion asserted that

the Sosas and Rosenthal should be sanctioned under Texas Rules of Civil Procedure

215.2 and 215.3 for multiple discovery abuses. Appellees also sought sanctions against

the Sosas and Rosenthal under Texas Rule of Civil Procedure 13 for including in the

Sosas’ pleadings the inflammatory statement that “Union Pacific does not care if its trains

run over wetbacks,” which appellees alleged was false and procured by bribery.

       During the sanctions hearing, appellees presented evidence connecting Rosenthal

to Seibert’s phone calls. They also presented testimony from the peace officer who

investigated a 2005 train collision in which Rosenthal represented the plaintiffs. The

former officer testified that his statement about “wetbacks”—which had appeared in both

of the Sosa’s petitions—was false and was the result of a $4,000 bribe from an agent of

the Rosenthal & Watson firm. The trial court found that Sosa’s pleadings violated Rule

13 of the Texas Rules of Civil Procedure and entered the following findings of fact:

       ....


                                               4
      7. The Original Petition in Sosa 1, signed by Rosenthal, contains the
         following paragraph thirteen language, which is alleged to exemplify a
         Union Pacific corporate "attitude” of indifference in regard to the danger
         which the speed of Union Pacific's trains allegedly posed to the citizens
         of Raymondville, Texas:

             "This is the same Union Pacific attitude that recently in an
             incident in neighboring Kennedy (sic) County involving a
             Union Pacific train that ran over and completely severed the
             legs on a young pregnant woman, after which the engineer of
             the offending Union Pacific train admitted to the investigating
             peace officer that 'Union Pacific does not care if its trains run
             over wetbacks'" (emphasis supplied).

      8. The above-quoted statements are false.

      9. The above-quoted statements were taken from another case where
         Rosenthal was counsel of record for the Plaintiffs and are perjured
         statements.

      10. Rosenthal and others at the law firm of Rosenthal and Watson suborned
         the perjury referred to above.

      11. The above-quoted statements are groundless.

      12. The above-quoted statements were made in bad faith.

      13. The above quoted false statements were designed by attorney Marc
          Rosenthal to imbue the Plaintiffs' pleadings with a coercive character
          which they would not otherwise have by falsely, fraudulently and in bad
          faith attributing to Union Pacific and its employees a high degree of
          mental culpability, characterized by malicious or conscious indifference
          towards Hispanics which the statements falsely, fraudulently and in bad
          faith attribute to Union Pacific and its employees.

      ....

      Additionally, the trial court made the following findings of fact in support of

discovery sanctions under Texas Rules of Civil Procedure 215.2 and 215.3:

      ....



                                            5
       26. In the phone conversation Seibert repeatedly lied about who he was,
           who had asked him to contact De La Rosa, and even stated that he had
           been requested by Union Pacific's counsel to contact De La Rosa.
           Seibert, on behalf of Rosenthal, made fraudulent statements and false
           statements of material facts to De La Rosa, including, but not limited to
           the following:

              Seibert falsely claimed he was an individual named "John
              Weir";

              Seibert falsely claimed he worked for the Union Pacific;

              Seibert falsely claimed he had just spoken with "Tony
              Rodriguez", Union Pacific's counsel;

              Seibert falsely claimed that "Tony Rodriguez" requested that
              he call De La Rosa;

              Seibert falsely claimed that he was investigating the
              automobile/train collision and whether or not the train's whistle
              had been properly sounded.
       ....

In regards to the Sosas, the trial court found the following:

       ....

       84. The Plaintiffs have for an extended period of time also been represented
           by at least one other member or affiliate of the law firm of Rosenthal
           and Watson, who has, since the dates of their filing, been aware of the
           sanctions motions and supporting evidentiary exhibits filed in Sosa 2 as
           well as of the reported decisions affirming the prior leveling of sanctions
           against attorney Marc Rosenthal.

       85. Such other member or affiliate of the law firm of Rosenthal and Watson
           is presumed to have communicated to the Plaintiffs the egregious and
           repeated nature of such formerly-imposed and affirmed sanctions and
           to have as well communicated the serious nature of the sanction
           allegations with supporting exhibits which have been leveled in the case
           at bar.

       86. Despite having been presumptively informed of the serious nature of the
           sanction allegations with supporting exhibits, which have been leveled
           in the case at bar, the Plaintiffs have not, through such additional

                                             6
           counsel or by any others means, sought to disavow any of the allegedly-
           sanctionable conduct which is alleged to have been undertaken on their
           behalf in the event and to the extent that any such conduct may be
           proven to have occurred.

      ....

As to Rosenthal’s conduct, the trial court concluded:

      ....

      13. Because Attorney Marc Rosenthal's discovery abuses and violations of
          Texas Disciplinary Rules of Professional Conduct Nos. 3.03(a) (2),
          4.01, 4.02(a), 4.04, and 8.04, as set forth in Conclusions of Law Nos.
          8-U, supra, were for the purpose of improperly eliciting information or
          manufacturing evidence going to the heart of Plaintiffs' Cause No. 2009-
          CV-0010-A claim that Union Pacific engineer Ernesto Ortegon failed to
          sound the Union Pacific train's whistle at the time of the accident
          forming the basis of such claim, same were subject to the parties' Tex.
          R. Civ. P. 11 agreement that the seeking or obtaining of discovery in
          Cause No. 2007-CV-0058-A for use in support of the Plaintiffs' Cause
          No. 2009-CV-0010-A claims would remain subject to all limitations and
          restrictions imposed by law, and therefore be subject to the
          enforcement in Cause No. 2009-CV-0010-A of all legal restrictions and
          Tex. R .Civ. P. 215.3 and 215.2 (b) enforcement remedies which the
          defendants could have asserted in Cause No. 2007-CV-0058-A.

      14. The Original allegations signed and filed by Attorney Marc Rosenthal in
          Cause No. 2009-CV-0010-A that Union Pacific had a corporate
          "attitude" of indifference in regard to the danger which the speed of its
          trains allegedly posed to the citizens of Raymondville, Texas, as
          exemplified by an alleged "admission" of a Union Pacific engineer that
          "Union Pacific does not care if its trains run over wetbacks" were and
          are groundless, false, brought for the purpose of harassment, have no
          basis in fact or law, are not warranted by any good faith argument for
          the extension, modification or reversal of existing law, are extremely
          offensive in character, and, having been based upon perjured affidavit
          and deposition testimony which had been suborned via bribe or
          purchase by Marc Rosenthal and others at the law firm of Rosenthal
          and Watson, constitute extremely-egregious violations of Tex. R. Civ.
          P. 13 for which good cause exists for toe imposition of sanctions
          pursuant to Tex. R. Civ. P. 215.2 (b).

      ....

                                            7
       16. The April 25, 2011 conduct of attorney Marc Rosenthal in failing to
           deliver to opposing counsel a copy of the proposed discovery Order
           containing relief which had not been addressed or granted by the Court
           constituted a violation of Texas Disciplinary Rule of Professional
           Conduct No. 3.05 (b) (2) and an abuse of the discovery process within
           the meaning of Tex. R. Civ. P. 215.3 and 215.2(b).

       17. The April 25, 2011 action of attorney Marc Rosenthal in leading the
           Court to believe that a proposed Order containing relief which had not
           been addressed or granted by the Court had been agreed to by all
           counsel constituted an abuse of the judicial process as well as an abuse
           of the discovery process within the meaning of Tex. R. Civ. P. 215.3
           and 215.2(b).

Regarding the Sosas conduct, the trial court concluded:

....

       26. In light of the multi-year period of time that attorney Marc Rosenthal has
            represented the Plaintiffs, the fact that such representation has
            occurred over the course of all of the proceedings which have taken
            place in Cause Nos. 2007-CV-0058-A and 2009-CV-0010-A, and as
            well over the course of all the proceeding which have taken place in
            Cause No. 2009-CV-0010-A alone, the fact that such representation by
            Marc Rosenthal and the firm of Rosenthal and Watson, P.C. has
            continued to this day, the fact that during such extended course of
            representation, Original and Amended sanctions motions, with
            evidentiary exhibits, have been filed which should have put such
            represented persons on notice to make inquiries concerning the
            legitimacy of such assertions and the truth of the evidentiary exhibits
            attached thereto, the fact that such Plaintiffs have for an extended
            period of time also been represented by at least one other member or
            affiliate of the law firm of Rosenthal and Watson who has at all times
            material been aware of the sanctions motions and supporting
            evidentiary exhibits filed in the instant case as well as of the reported
            decisions affirming the prior leveling of sanctions against attorney Marc
            Rosenthal for similarly-abusive conduct, the fact that such attorney is
            presumed to have communicated to such Plaintiffs the egregious and
            repeated nature of such formerly imposed and affirmed sanctions and
            the serious nature of the sanction allegations with supporting exhibits
            which have been leveled in the case at bar, and the fact that such
            Plaintiffs have not, through such counsel or by any other means, sought
            to disavow any of the allegedly-sanctionable conduct which was and is

                                             8
           alleged to have been undertaken on their behalf in the event and to the
           extent that any such conduct may be proven to have occurred, the
           sanctionable conduct which the Court has herein found to have been
           committed by attorney Marc Rosenthal as agent for and on behalf of
           such Plaintiffs can and should be imputed to such Plaintiffs as the
           principals of Marc Rosenthal.

       27. In light of the facts set out in Conclusion of Law No. 26, the Plaintiffs
           must also be deemed in law, as principals of Attorney Marc Rosenthal,
           to have ratified the conduct of their counsel and agent, Marc Rosenthal,
           which the Court has found to be sanctionable.

Pursuant to sanctions available under rules 13, 215.2, and 215.3 of the Texas Rules of

Civil Procedure, the trial court struck the Sosa’s pleadings and dismissed their case with

prejudice. Additionally, the trial court ordered Rosenthal to pay $125,000 in attorney’s

fees to appellees. The intervenor subsequently nonsuited his plea in intervention.

       The Sosas filed a motion for a new trial which was overruled by operation of law.

The Sosas appealed.

                                    II.    DISCUSSION

       A. Standard of Review

       We review the imposition of sanctions under an abuse of discretion standard.

Nath v. Tex. Children’s Hosp., 446 S.W.3d 355, 361 (Tex. 2014). A sanctions award will

not withstand appellate scrutiny if the trial court acted without reference to guiding rules

and principles to such an extent that its ruling was arbitrary or unreasonable. Cire v.

Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). But we will not hold that a trial court

abused its discretion in levying sanctions if some evidence supports its decision.

Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 2009).




                                             9
       A sanction must comply with due process: it must be just and not excessive. Nath,

446 S.W.3d at 361; TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917

(Tex. 1991). “A just sanction must be directed against the abusive conduct with an eye

toward remedying the prejudice caused to the innocent party, and the sanction must be

visited upon the true offender.” Nath, 446 S.W.3d at 363 (citing TransAmerican, 811

S.W.2d at 917). A sanctions award that fails to comply with due process constitutes an

abuse of discretion because a trial court has no discretion in determining what the law is

or applying the law to the facts.     See TransAmerican, 811 S.W.2d at 917; Huie v.

DeShazo, 922 S.W.2d 920, 927 (Tex. 1996).

       In reviewing sanctions orders, we are not bound by a trial court’s findings of fact

and conclusions of law. See Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583

(Tex. 2006).   Rather, we must independently review the entire record to determine

whether the trial court abused its discretion. Id. However, when a sanctions order

names a specific rule, we are confined to determining whether the sanctions are proper

under that rule alone. See id. (citing Metzger v. Sebek, 892 S.W.2d 20, 51 (Tex. App.—

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

       B. Applicable Law

       Rule 13 states that pleadings that violate the rule are sanctionable:

       The signatures of attorneys or parties constitute a certificate by them that
       they have read the pleading, motion, or other paper; that to the best of their
       knowledge, information, and belief formed after reasonable inquiry the
       instrument is not groundless and brought in bad faith or groundless and
       brought for the purpose of harassment. Attorneys or parties who shall
       bring a fictitious suit as an experiment to get an opinion of the court, or who
       shall file any fictitious pleading in a cause for such a purpose, or shall make
       statements in pleading which they know to be groundless and false, for the

                                             10
       purpose of securing a delay of the trial of the cause, shall be held guilty of
       a contempt. If a pleading, motion or other paper is signed in violation of
       this rule, the court, upon motion or upon its own initiative, after notice and
       hearing, shall impose an appropriate sanction . . . upon the person who
       signed it, a represented party, or both.

TEX. R. CIV. P. 13. In determining whether a claim is groundless, a court looks to the

facts available to the litigant and counsel as well as the circumstances at the time the

pleading was filed. See Harrison v. Harrison, 363 S.W.3d 859, 863 (Tex. App.—Houston

[14th Dist.] 2012, no pet.). Rule 13, however, does not permit sanctions on the issue of

groundlessness alone. Nath, 446 S.W.3d at 363; see TEX. R. CIV. P. 13. Rather, the

filing in question must be groundless and either brought in bad faith, brought for the

purpose of harassment, or false when made. Id.

       Discovery sanctions are authorized by Texas Rule of Civil Procedure 215. See

TEX. R. CIV. P. 215. If a party fails to comply with an order compelling discovery or

abuses the discovery process, a trial court is authorized to strike the party's pleadings or

render a judgment by default after notice and a hearing. See id. 215.2(b)(5), 215.3. Any

sanction that adjudicates a claim and precludes the presentation of the merits of the case

constitutes a “death penalty” sanction. Chrysler Corp. v. Blackmon, 841 S.W.2d 844,

845 (Tex. 1992) (orig. proceeding); TransAmerican, 811 S.W.2d at 918.                 Discovery

sanctions serve three purposes: (1) to secure the parties' compliance with the discovery

rules; (2) to deter other litigants from violating the discovery rules; and (3) to punish parties

who violate the discovery rules. Response Time, Inc. v. Sterling Commerce (N. Am.),

Inc., 95 S.W.3d 656, 660 (Tex. App.—Dallas 2002, no pet.).




                                               11
       Although the choice is left to the sound discretion of the trial judge, the sanctions

imposed must be just. See TEX. R. CIV. P. 215.2; Cire, 134 S.W.3d at 839; Response

Time, 95 S.W.3d at 660. In order for a sanction to be just: (1) it must have a direct

relationship with the offensive conduct, i.e., it must be directed toward remedying the

prejudice to the innocent party; and (2) it must not be excessive; i.e., the trial court must

consider the availability of less stringent sanctions and whether those lesser sanctions

would promote full compliance.      See Cire, 134 S.W.3d at 839; TransAmerican, 811

S.W.2d at 917; Response Time, 95 S.W.3d at 660.

       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

the party's claims or defenses lack merit.        TransAmerican, 811 S.W.2d at 918.        In

exceptional situations, a court may impose determinative sanctions in the first instance

when they are clearly justified and no lesser sanctions will promote compliance. GTE

Communications v. Tanner, 856 S.W.2d 725, 729 (Tex. 1993).

                                     III.    ANALYSIS

       A. Pleadings Sanctions

       The Sosas argue that the trial court incorrectly sanctioned them by dismissing their

case with prejudice, when Rosenthal was the sole transgressor. The Sosas allege that

they had no knowledge of the perjured allegation found in the pleadings or the discovery

abuses.

       Since the filing of the briefs in this case, the Texas Supreme Court has issued an

instructive opinion dealing with pleading based sanctions. In Nath v. Texas Children’s


                                             12
Hospital, the supreme court upheld case-determinative sanctions based on rule 13

violations, concluding that there was a direct nexus between the party’s offensive conduct

and the pleadings filed. See Nath, 446 S.W.3d at 364 (emphasis added). Nath involved

acrimonious litigation between a surgeon and his employer. Nath, the plaintiff, filed

numerous amended petitions alleging that another surgeon, Shenaq—who was no longer

a party to the lawsuit—operated on patients despite impaired vision and while afflicted

with hepatitis. Id. at 366. Ostensibly, Nath’s purpose behind the amended pleadings

was to gather information regarding Shenaq’s health in order to leverage a favorable

settlement. Id. The court noted evidence of Nath’s direct involvement in the lawsuit as

follows: 1) Nath’s admission that he sought medical information about Shenaq so that he

could inform former patients of Shenaq’s health problems; 2) Nath personally attended

depositions; and 3) Nath claimed his relationship with Shenaq soured after Nath

confronted Shenaq about his alleged health problems. Id. The court also held that Nath

should be sanctioned for a pleading filed by his attorney even though the attorney swore

in an affidavit that “he exercised his own legal judgment” when deciding what claims to

file. Id. Despite the attorney’s admission, the court noted that the petition contained

information about Shenaq’s health from the prior petitions, and reasonably concluded that

the information came directly from Nath. Id. at 366-67.

      Here, the Sosas’ conduct is distinguishable from Nath’s conduct.          That the

pleadings contained a perjured statement was only revealed during the sanctions hearing.

There is no evidence in the record to show that the Sosas knew of the perjured statement

at any time before the sanctions hearing. While the perjured statement characterizing


                                           13
Union Pacific’s corporate mindset regarding train accidents may have been incorrect,

irrelevant, and warranted sanctions as to Rosenthal, it does not reflect any knowledge

that the Sosas had at the time the pleadings were filed. Instead, the offending portion of

the pleadings was revealed as false long after the pleadings were filed. We find it highly

unlikely that Rosenthal explained to the Sosas that the pleadings would contain

information that was false and obtained through bribery and perjury; and even more

unlikely that the Sosas would have acquiesced to such conduct. Unlike Nath, there is

no evidence in the record that the Sosas acknowledged or condoned the use of perjured

facts in their petitions. Examining the facts and evidence available to the Sosas and the

circumstances that existed at the time they filed their first and second lawsuits, we

overrule the trial court’s decision to sanction the Sosas personally for actions solely

attributable to their attorney. Id. at 367.

       B. Discovery Sanctions

       With respect to the discovery abuse sanctions, the Sosas again argue that the trial

court’s sanctions unfairly punish them for Rosenthal’s violations of the disciplinary rules

and Alvarado’s discovery abuses. See TEX. DISCIPLINARY R. PROF'L CONDUCT 4.02(a),

reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. A (West, Westlaw through 2013

3d C.S.) (Tex. State Bar R. art. X, § 9) (lawyer shall not communicate with represented

party without permission of other lawyer).

       In response, appellees argue that the sanctions imposed on the Sosas are proper

because by signing the writ of mandamus petition, Viviana Sosa was aware of Siebert’s

improper contacts with De La Rosa. Appellees also contend that we can reasonably


                                              14
presume that the Sosas communicated with their attorneys during the six year pendency

of this case and despite knowing of the egregious conduct, the Sosas continued their

attorney-client relationship.   Appellees assert that the egregious conduct carried out

solely by an attorney can result in the dismissal of a party’s case. See TransAmerican,

811 S.W.2d at 918 (explaining that case-determinative sanctions can be assessed based

on “a party’s flagrant bad faith or counsel’s callous disregard for the responsibilities under

the rules). However, as noted by the Texas Supreme Court, “a party should not be

punished for counsel’s conduct in which it is not implicated apart from having entrusted

to counsel its legal representation.” TransAmerica, 811 S.W.2d at 917.

       In support of their argument, appellees urge that this case is factually similar to

Kugle v. DaimlerChrysler Corporation, where the plaintiff’s attorneys engaged in evidence

tampering and perjury relating to an allegedly defective steering column, then attempted

to hide their wrongdoing with false testimony and procedural chicanery.             Kugle v.

DaimlerChrysler Corporation, 88 S.W.3d 355, 366 (Tex. App.—San Antonio 2002, pet.

denied). In that case, the trial court entered case-determinative sanctions against the

plaintiffs and monetary sanctions against the plaintiff’s attorneys.        Id. at 361.     In

upholding the sanctions, the appellate court held that the trial court did not abuse its

discretion in concluding that the “plaintiffs themselves were aware of and participated in

the wrongdoing given their presence at the inspection of the steering column, [plaintiff’s]

false testimony, and the taking of a non-suit with prejudice in an obvious attempt to avoid

exposure of the wrongdoing.” Id. at 366.




                                             15
       In further support of their argument, appellees cite Van Es v. Frazier, 230 S.W.3d

770, 782 (Tex. App.—Waco 2007, pet. denied). In Van Es, our sister court concluded

that the record supported a finding of the party’s culpability in failing to comply with the

trial court’s discovery orders relating to requests for production and depositions.      Id.

The court further concluded that the length of time involved in the discovery dispute

weighed heavily against the argument that the party was unaware of the discovery orders

and his subsequent duty to comply. Id. However, in supporting this conclusion, the

court noted that the sanctioned party received several intermediate sanctions prior to the

death penalty sanctions. Id.

       The present case is distinguishable from Kugle and Van Es. In Kugle, the party

was aware of the discovery abuses given her presence at the inspection of the allegedly

defective steering column.     See Kugle, 88 S.W.3d at 366.        After learning that the

steering column was intact, the plaintiffs continued to pursue their lawsuit and presented

post-suit testimony significantly different from pre-suit statements. Id. In Van Es, the

party failed to respond to requests for production and appear for a deposition. See Van

Es, 230 S.W.3d at 781 (emphasis added). Importantly, the record indicated that the

party was personally aware of the ongoing discovery dispute and of his responsibility

pursuant to the trial court’s orders and previous intermediate sanctions. See id. at 782.

       In Spohn Hospital v. Mayer, the Texas Supreme Court reversed a sanction award

against Spohn where the record contained no evidence that the sanctions were visited

on the offender. Spohn Hosp. v. Mayer, 104 S.W.3d 878, 882–83 (Tex. 2003). What

the record in Spohn established was that the defendant, Spohn, deliberately withheld key


                                            16
witness statements until thirty-one days before trial. Id. at 881. The trial court granted

the plaintiffs' motion for sanctions and ordered that facts in the witnesses’ written

statements be taken as established, pursuant to rule 215.2(b)(3). Id.; see TEX. R. CIV.

P. 215.2(b)(3). In reversing the sanctions award, the supreme court explained that while

the sanctions were generally directed against the alleged abuse, neither the trial court nor

the court of appeals discussed whether counsel or the clients were responsible for the

discovery abuse. Id. at 883.

       Here, the only evidence in the record that the Sosas were somehow involved in

the misconduct is the implication that they knew of their attorney’s actions based on the

length of the attorney-client relationship. The record contains no deposition testimony

from the Sosas, and they did not testify at any of the trial court’s hearings. Although this

case was litigated for nearly 6 years, the length of representation alone is not enough to

create an inference that the Sosas were involved in Rosenthal and Alvarado’s discovery

abuses.   See Van Es, 230 S.W.3d at 781.         Additionally, Viviana’s signature on the

mandamus petition does not impute knowledge of any misconduct to her.                  The

mandamus petition discusses the De La Rosa/Siebert phone call, but it characterizes the

deception as coming from De La Rosa. Furthermore, the mandamus petition does not

reveal the relationship between Siebert and Rosenthal. Without the benefit of context in

the overall deceptive scheme, the mandamus gives little insight into the illicit phone

conversations.   Additionally, the trial court issued no orders or lesser intermediate

sanctions that would have given the Sosas any indication of their counsel’s misdeeds.




                                            17
See id. The only sanctions in this case came after the trial court became aware of the

full breadth of counsel’s misconduct; sanctions which effectively ended the litigation.

       Appellees argue that the exceptional misconduct warrants dismissal of the Sosas’

case. Rosenthal’s conduct, which based on the trial court’s findings was egregious and

unethical, does not create a presumption that the Sosas’ claims lack merit.               See

TransAmerican, 811 S.W.2d at 918 (holding that where there is an extreme abuse of the

judicial process, “the court may presume that an asserted claim or defense lacks merit

and dispose of it.”).   Rosenthal’s discovery abuse attempted to bolster his evidence that

the train did not sound its horn prior to entering the crossing. The Sosas already had

testimony from several witnesses questioning whether the horn was sounded, but

certainly testimony from De La Rosa, who was on the train, that the horn was not sounded

would have foreclosed any argument to the contrary. Even though Rosenthal’s efforts

did not yield favorable results, it does not diminish the veracity of the witnesses previously

deposed on the horn issue. Therefore, we disagree with appellees that Rosenthal’s

conduct necessarily should result in a dismissal of the Sosas’ claims. See Lanfear v.

Blackmon, 827 S.W.2d 87, 91 (Tex. App.—Corpus Christi 1992, orig. proceeding)

(holding that despite flagrant bad faith in discovery abuses, trial court failed to determine

whether lawyer or client was at fault).

       We recognize that an attorney-client relationship does not completely shield a

client from the attorney’s misdeeds, but we are also mindful that an unsophisticated party

in the hands of a manipulative and unethical attorney can be powerless. Here, the record

does not indicate that the Sosas actually were or should have been aware of their


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counsel’s conduct nor does that conduct create a presumption that the claims are without

merit. See Chrysler Corp., 841 S.W.2d at 851; Leon’s Fine Foods of Tex., Inc. v. Merit

Inv. Partners L.P., 160 S.W.3d 148, 153 (Tex. App.—Eastland 2005, no pet.). The trial

court abused its discretion in imposing case-determinative sanctions on the Sosas. See

TransAmerica, 811 S.W.2d at 918.

                                           IV.     CONCLUSION

       We reverse the trial court’s order granting sanctions against the Sosas remand this

case to the trial court for further proceedings consistent with this opinion.4




                                                          GREGORY T. PERKES
                                                          Justice

Delivered and filed the
14th day of May, 2015.




       4   Because the Sosas’ first issue is dispositive, we need not address their other issues.
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