                                 NO. 12-09-00091-CV

                         IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                       TYLER, TEXAS
LAVERNA SELLS,
APPELLANT                                              '             APPEAL FROM THE

V.                                                     '             COUNTY COURT AT LAW #2

EARL DROTT,                                            '             SMITH COUNTY, TEXAS
APPELLEE

                                             OPINION
       LaVerna Sells appeals from a default judgment entered in favor of Earl Drott in
his suit for specific performance of a contract. Sells raises three issues contending that
the trial court erred in striking her pleadings, quashing the notice of deposition of her
physician, and refusing to consider the physician‟s affidavit. We reverse and remand.

                                          BACKGROUND
       Sells, who was born in 1924, lives in Houston, Texas. Sells and George W.
Lampkin, Jr. owned some land in Smith County. They each executed a power of attorney
regarding their land, giving LaCheryl Stebbings authority to

                execute, acknowledge, and deliver contract(s) and/or verbal response for listing
       with a real estate representative or expressed interested individual buyer relative to my
       land owned within the William Luce and Ventura Tejada Tracts, and any interest therein.
       If applicable, LaCheryl R. Stebbings/AGENT is authorized to present necessary
       documents on my behalf, such as deed, lien notices, or other indebtedness or obligations
       subject and pertaining to property associated with and conducive to listing the subject
       land.

2006 Litigation
       In 2003, Drott and Stebbings executed a contract for the sale of the land, but Sells
and Lampkin refused to accept payment of the purchase price. Drott filed suit against
Sells and Lampkin for specific performance in 2006. Sells filed a pro se answer and an
amended answer that included an affirmative defense. Sells also filed separate responses
to Drott‟s request for admissions, request for disclosure, request for answers to
interrogatories, and request for production. Her responses were made up primarily of
objections.
       Drott secured a default judgment against Lampkin, who failed to answer, and
Drott‟s claims against Lampkin were severed. Lampkin did not appeal. Neither Sells nor
Lampkin appeared at the hearing on Drott‟s motion to sever. Sells‟s daughter, who is not
an attorney, appeared in court as Sells‟s “representative.” The trial court apparently
determined that Sells‟s responses were signed by Sells‟s daughter. Consequently, the
trial court struck Sells‟s pleadings and entered a default judgment against her on
October 19, 2006. The trial judge also made it clear that he was going to forward a copy
of the transcript of the hearing to the district attorney for “potential prosecution.” Sells
obtained counsel, J.B. Peacock, Jr., and appealed the default judgment to this court. We
affirmed the judgment on July 18, 2007. See Sells v. Drott, 259 S.W.3d 194 (Tex. App.–
Tyler 2007), rev’d, 259 S.W.3d 156 (Tex. 2008). She then appealed to the supreme
court, which reversed after concluding that the trial court did not give her notice and an
opportunity to present evidence before striking her answers and granting the default
judgment.
2008 Motion for Next Friend
       Before the supreme court‟s mandate issued on August 22, 2008, Drott‟s counsel,
Howard Britain, demanded compliance with Drott‟s prior discovery requests. During a
July 31, 2008 teleconference, Peacock had said he would amend or supplement the
previous pro se responses as necessary when the mandate issued. However, Britain filed
a motion to compel and for sanctions on the same day as the teleconference.               On
September 4, 2008, Sells filed a motion for appointment of her son, Lynn Sells, as her
“next friend.” In the motion, she explained that she is eighty-four years old and has had
four strokes since 2001. She stated that she has slurred speech, short term memory loss,
and cannot “get around” very easily. She asserted that she is “physically incapable of
managing her own interests and the demands of this litigation.” The motion is supported
by a verification signed by Sells on August 26, 2008, stating that the information in the
motion is true. It is also supported by the affidavit of Lynn Sells in which he speaks of
his mother‟s physical condition. He states in his affidavit that “[m]entally [Sells] is fairly
competent” but suffers from short term memory loss. He explains that, “[b]ecause of
these disabilities,” his mother asked him to appear for her in this litigation. He states that
she is physically incapable of managing her own interests and the demands of the
                                        2
litigation. The accompanying certificate of conference states that Sells‟s attorney made
three attempts to discuss the motion with Drott‟s attorney, on August 26, September 2,
and September 3, but opposing counsel did not respond. On September 12, Sells‟s
attorney set the motion for hearing on October 9.
Drott’s Discovery Efforts
        On September 24, Britain sent a letter to Sells‟s counsel requesting supplemental
answers to his discovery requests by October 1 and warning that if they were not
received, he would set the hearing on his motion to compel and for sanctions for
October 9. Along with the letter, he served a subpoena for Sells to be present at the
October 9 hearing, in order for him “to inquire why it is necessary for her to have a „next
friend‟ and to explain her failure to respond to [Drott‟s] discovery requests.” Along with
the letter and subpoena, he served notice of his intent to take Sells‟s deposition on
October 10, explaining that it was “imperative” that he “immediately depose her so that
we do not have age-related issues concerning her memory.” He went on to explain in the
letter that “the past track record, in terms of the delays to date in getting things done,
combined with Ms. Sells[‟s] alleged physical and/or mental status, gives [him] a sense of
urgency that [he] might not otherwise have in a case.” Britain did not first consult with
Sells‟s counsel before setting the date for the deposition. Peacock‟s co-counsel, Cynthia
Shanklin, later explained to the trial court that this letter was the first indication that Drott
would contest appointment of a next friend. At that time, she began trying to find out
what dates Dr. Chiu, Sells‟s physician, would be available for a deposition.
Sells’s Response
        On September 26, Sells provided supplemental responses to Drott‟s request for
disclosure and request for production.
        On September 29, Shanklin sent a letter to Britain cancelling the October 9 next
friend hearing because she wanted to get Sells‟s medical records and Dr. Chiu‟s
deposition before the hearing. She explained that Dr. Chiu would be out of town until
October 6. Sells served discovery requests on Drott on September 30. However, the
attorneys agreed that those answers would not be provided until after Sells had completed
the discovery Drott had requested. On October 1, Shanklin filed a motion to quash the
October 10 deposition of Sells. The motion was signed on September 29 and explains
that there was concern for Sells‟s health and that she was not physically able to travel or
testify. Shanklin said she was in the process of getting the doctor‟s deposition and the
                                           3
medical records to determine whether Sells‟s medical condition was such that the stress
of testifying would pose a potential health risk.
        On October 9, Shanklin filed a motion for continuance, asking the court to
postpone the hearing scheduled for that day on Drott‟s motion to compel, her motion for
appointment of a next friend, and her motion to quash Sells‟s deposition until she could
obtain a physician‟s testimony regarding Sells‟s mental capacity and physical
capabilities.   Attached to this motion was a short letter from a nurse at Methodist
Neurological Institute in Houston, dated October 2, 2008, stating that Sells had been a
patient there since 2001, has been seen by Dr. David Chiu, and that the nurse and Chiu
“feel that she is not mentally capable of tolerating court proceedings or depositions.”
First Post-Remand Hearing
        Sells was not present at the October 9 hearing. The trial court denied the motion
for continuance, apparently because a local rule requiring a certificate of conference was
not complied with. Shanklin explained that the interrogatories had been answered, but
not signed because it had not yet been determined whether Sells was competent to sign
them.    Britain said he did not know until that day that Sells was unable to sign
interrogatories. Britain argued that Drott had been asking for discovery for two years and
that all they got was a “roadblock” every time they tried to move forward. Shanklin
argued that they wanted Sells‟s treating physician to determine if Sells could give a
deposition before presenting her for a deposition. The court gave Sells until October 23
to answer the interrogatories and refused to quash the October 10 deposition.
Scheduling Difficulties
        On October 9, the court set the next friend hearing for October 28. Also on that
day, Shanklin sent a letter to Britain confirming a telephone conversation of that day in
which she informed him that Sells would not appear for the scheduled October 10
deposition due to concerns for her health. On October 10, Shanklin filed a motion for
rehearing asking the court to reconsider the motions ruled on at the October 9 hearing.
She wanted more time to get the doctor‟s deposition because Sells‟s mental capacity was
at issue and there might be serious health risks. On that same day, Shanklin sent Britain a
letter stating that Dr. Chiu would be available for his deposition on October 17, 22, and
23. Also on October 10, Britain filed Drott‟s motion to compel Sells‟s deposition
because she did not appear.       He set the motion for hearing on October 14.            On
October 13, Shanklin made a written request for Sells‟s medical records.
                                           4
       Also on October 13, Britain responded to Shanklin‟s October 10 letter, stating he
would be out of town from October 15 through October 24. He attached a copy of the
January 22, 2008 letter by which he had notified the court and numerous attorneys that he
would be unavailable on certain dates in 2008. Britain was not hired by Drott until July
2008. Therefore, he did not include Shanklin or Peacock on the original list of attorneys
to whom he sent the notice in January.
Second Post-Remand Hearing
       On October 14, a hearing was held on Drott‟s motion to compel Sells‟s deposition
and for sanctions. Shanklin explained that she was still trying to schedule Dr. Chiu‟s
deposition and had requested medical records. Lynn Sells testified that Sells has had four
strokes and a fractured back. She has short term memory loss and needs family members
to make her decisions. He feared that testifying would create serious anxiety for her and
possibly cause her to have another stroke. He described her as “fairly competent,” and
said she keeps her own bank account, with some monitoring. She had been taken from
her home in Houston to Dallas to visit family once in the past two years. Lynn also
testified that, since her last stroke, in 2006, she has traveled maybe two or three times a
year. The court sustained Britain‟s objection to Lynn Sells‟s affidavit, which covered
much of the same information as his testimony, commenting that Lynn Sells is not
qualified to evaluate Sells. Noting that the record did not show Sells‟s physical or mental
condition, the court granted Drott‟s motion to compel and for sanctions. The court
ordered Sells to pay $2,500.00 by October 29 and set her deposition for October 30.
Medical Evidence
       On October 17, Shanklin sent a letter to Britain notifying him that Dr. Chiu was
available to be deposed on October 28 and 31 and November 7, 14, 18, and 21. On
October 23, Peacock filed a motion for continuance of the next friend hearing that was set
for October 28 because he was still unable to get Dr. Chiu‟s deposition or the medical
records. On October 28, Peacock filed a motion to reconsider Drott‟s motion to compel
the deposition of Sells and for sanctions. In support of the motion, he attached the
affidavit of Dr. Chiu, which was signed on October 22. The affidavit and a copy of
Sells‟s medical records were received in Peacock‟s office on October 27. In the affidavit,
Dr. Chiu states as follows:



                                            5
                  Laverna Sells has been a patient of mine since January of 2001. Ms. Sells has a
        long history of hypertension, diabetes and has suffered from multiple strokes, the first of
        which occurred in January 2001. Ms. Sells suffered from her last stroke February 2006.
        As a result of the strokes, Ms. Sells suffers from vascular cognitive impairment and has
        gait difficulty.
                  In my opinion, based upon my training as a medical doctor board certified in
        neurology, Ms. Sells is not mentally nor physically capable of enduring the stress of
        testifying at a deposition or trial, or appearing for a trial.



The medical records indicate that Dr. Chiu recommended a neuropsychological
evaluation on October 13. The trial court denied the motion to reconsider on October 29.
        On October 30, Sells paid the $2,500.00 sanction, but did not appear for the
deposition. Drott immediately filed his second motion to compel her deposition and his
second motion to compel answers to interrogatories. On November 3, Drott received
Sells‟s supplemental responses to his request for interrogatories that were due on
October 23. On November 4, Peacock noticed his intention to take the oral deposition of
Dr. Chiu on November 21 in Houston. In the notice, he explained that, on October 17, he
had provided Britain with the dates Dr. Chiu was available, but Britain never responded
or agreed to any date for Dr. Chiu‟s deposition.
Third Post-Remand Hearing
        A hearing was held November 5 to address Sells‟s motions for reconsideration
and for rehearing. That morning, Sells moved for continuance of the hearing, but the
court denied her motion because it was not timely. Peacock offered both the Chiu
affidavit and Sells‟s medical records. The court admitted the medical records but found
the affidavit to be hearsay. The court commented that it looked as though Sells was
taking every chance to delay. Peacock explained that he was not aware there was a
problem until Drott subpoenaed Sells for a deposition. At that point, the family said she
would not be able to stand up under a deposition. Additionally, he received the October 2
letter from the nurse that put them on notice that there was a problem. The trial judge
said the way to find out if Sells could handle the deposition was to depose her. The judge
commented further that he did not like the way Sells‟s attorneys had handled the
situation.
        Also at the November 5 hearing, Drott‟s motion to compel answers to
interrogatories was heard and granted, as was his motion to compel Sells‟s deposition.
The court ordered Sells to answer the interrogatories by November 15 and to pay
$2,000.00 in sanctions. Additionally, the court ordered Sells to appear for her deposition
                                            6
on November 11 and to pay $1,562.50 in sanctions. After the court made an oral ruling,
the following exchange occurred:



                Peacock: Right. If she‟s incompetent that might be evident from the deposition
       and what the Court is ruling makes sense. The problem I‟ve got though is her doctor is
       saying and these records bear it out that she could have another stroke if I present her in
       front of Mr. Britain and a court reporter for her deposition. That‟s the risk. That‟s the
       problem.

                 The Court: I well-understood. And I consider it‟s not generally a good thing to
       kill the party to the lawsuit in the process of the lawsuit. But the logical result [sic] to
       find out the condition of the lady is a face-to-face, one-on-one, to try to do the deposition,
       which is a whole lot [sic] stressful than appearing in the courtroom.

                 Peacock: If I may, Your Honor, doesn‟t it make more sense to take her doctor‟s
       deposition and let him tell us, give his opinion about whether she could present? That‟s
       all I‟m asking.

                The Court: I think the quickest and fastest way is to try to take the lady‟s
       deposition. Let‟s cross this bridge once and for all, and this is the third time.

                 Peacock: But I‟m so afraid, Your Honor, if we do that – if she has another
       stroke, she could die on the spot and she‟s had four strokes already.

                The Court: I understand that. That‟s why I spent all the time looking at the
       records. It‟s a calculated move, and that‟s pretty much what everything always is.


Drott’s Motion to Quash
       Two days later, Drott moved to quash Sells‟s notice of intention to take Dr.
Chiu‟s November 21 deposition. He reasoned that since Sells had been ordered to appear
for her deposition on November 11, the later scheduled doctor‟s deposition is “untimely,
irrelevant, unnecessary, burdensome, and not reasonably calculated to lead to the
discovery of admissible evidence.” However, Sells did not appear for her deposition on
November 11 and, on November 12, Drott filed his third motion to compel her deposition
and for sanctions.
Further Pleadings and Motions
       On November 13, Sells filed her second amended answer and a counterclaim for
trespass to try title. She asked for an injunction against Drott, prohibiting him from
obstructing access to her property because he allegedly built a fence landlocking her
property. She also filed a motion to reconsider the court‟s most recent adverse rulings.
These motions were set for hearing on November 19. On that date, Drott filed his third
motion to compel answers to interrogatories and for sanctions because he did not receive

                                                     7
answers that were due November 15. Because Sells did not get sufficient notice of that
motion, the court postponed the hearing until December 1. The court commented that
“[i]t does look like I‟m being hit with stalling on trying to get that lady.”          On
November 24, Sells signed and served her amended response to Drott‟s request for
answers to interrogatories.
Fourth Post-Remand Hearing
       At the December 1 hearing, Britain conceded that Sells‟s amended responses were
responsive. Yet he argued that death penalty sanctions were appropriate because Sells
failed to obey five court orders and filed a counterclaim after claiming to be incompetent.
Peacock argued that the counterclaim was not evidence of capacity and, if he did not
plead it, he would be guilty of malpractice. The court announced that “[t]his is going to
get resolved today” and “I intend to end this issue today one way or the other.”
       At the December 1 hearing, the court denied Sells‟s motions for rehearing and for
reconsideration.    The court granted Drott‟s third motion to compel answers to
interrogatories and ordered Sells to pay $1,500.00 in sanctions. The court also granted
Drott‟s third motion to compel Sells‟s deposition and ordered her to pay $1,500.00 in
sanctions. The trial court granted Drott‟s motion to strike Sells‟s pleadings and struck
her answers and her cross action. The trial court also granted Drott‟s motion to quash Dr.
Chiu‟s deposition as moot. Drott testified that he sued Sells for specific performance of a
contract to purchase Sells‟s land at $600.00 an acre. He had previously tendered
$9,683.40 to the court‟s registry. He testified that after he filed his lis pendens in this
case, Sells tried to convey the property to her children.
The Default Judgment
       The written order, signed on December 18, 2008, includes several statements and
findings. The court found that Sells had engaged in a pattern of discovery abuse and that
the credible evidence indicates that she is both mentally and physically capable of
appearing for depositions, responding to discovery requests, and complying with
discovery orders but refused to do so. The court stated that it had considered all possible
alternatives to rendering a death penalty sanction and noted that it had tried lesser
sanctions. The court found that Sells‟s actions indicated a blatant disregard for the
court‟s authority and that no lesser sanction than the death penalty sanction would
promote compliance with the rules. The court explained that it had considered both the
role of Sells and of defense counsel in the discovery abuse. The court noted that Sells‟s
                                             8
refusal to appear for her deposition, answer discovery, and pay sanctions were acts of
personal misconduct on the part of Sells for which sanctions should be visited solely on
her and for which the court declined to extend responsibility to defense counsel. The
court found that filing a counterclaim seeking affirmative relief was inconsistent with
Sells‟s alleged inability to respond to discovery requests or appear for her deposition.
The court found that Sells‟s pattern of discovery abuse and delay justified a presumption
that her claims and defenses lack merit and that Drott would be unable to adequately
prepare for trial without the material evidence provided by Sells‟s deposition testimony
and discovery responses. Thus, the court determined that Drott had been irreparably
harmed by Sells‟s discovery abuse and the death penalty sanction was directed against
that abuse.
       The court entered a default judgment against Sells, and all matters set forth in
Drott‟s first amended petition were deemed established as a matter of law. The court
ordered that Drott was entitled to ownership of the four tracts of land at issue and that the
judgment would serve as a conveyance of Sells‟s interest in the property. The court also
ordered Sells to pay Drott‟s previously incurred attorney‟s fees in the amount of
$11,615.00, his future attorney‟s fees in the intermediate appellate court in the amount of
$15,000.00, and his future attorney‟s fees in the supreme court in the amount of
$10,000.00. These last two awards were not conditioned on Drott‟s prevailing on appeal.
The court also ordered Sells to pay the delinquent sanctions in the amounts of $2,000.00,
$1,562.50, $1,500.00, and $1,500.00 within thirty days of the date of judgment.




                                  DEATH PENALTY SANCTIONS
       In her first issue, Sells contends the trial court‟s rulings were unreasonable and
arbitrary, and thus the court erred in striking her pleadings and entering a final judgment
in Drott‟s favor. She argues that she did not willfully absent herself to avoid her
deposition, did not willfully avoid written discovery, and did not act in bad faith. She
contends she is infirm and unable to comply with the deposition settings. Further, she
argues that since she never had a contract to sell her land to Drott, she has a meritorious
defense. She asserts that Drott ignored the fact that her medical condition was at issue
and demanded discovery.       She contends that her right to due process was violated
                                             9
because she was not given an adequate opportunity to present evidence to establish that
she was unable to testify at trial or a deposition. With regard to written discovery
requests, Sells asserts that she fully complied with those requests, the sanctions were
wrongfully assessed, and they should be set aside.
Standard of Review
       If a party fails to comply with proper discovery requests or to obey an order to
provide discovery, or abuses the discovery process, the court may, after notice and
hearing, impose appropriate sanctions. TEX. R. CIV. P. 215.2, 215.3. The choice of
authorized sanctions is within the sound discretion of the trial court. TransAmerican
Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991) (orig. proceeding).
However, any sanction imposed by the trial court must be just. TEX. R. CIV. P. 215.2(b);
Powell, 811 S.W.2d at 917. There is a two prong standard for determining whether an
imposition of sanctions is “just.” First, a direct relationship must exist between the
offensive conduct and the sanction imposed. Powell, 811 S.W.2d at 917. This means
that a just sanction must be directed against the abuse and toward remedying the
prejudice caused the innocent party. Id. Depending on whom the offensive conduct is
attributable to, either the attorney or the client might be sanctioned. Id. Second, just
sanctions must not be excessive. Id. A sanction imposed for discovery abuse should be
no more severe than necessary to satisfy its legitimate purposes. Id. The court must
consider the availability of less stringent sanctions and whether such lesser sanctions
would fully promote compliance. Id.
       The imposition of very severe sanctions is limited by constitutional due process.
Id. 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. Id. at 918. Sanctions that 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. During appellate review of discovery sanctions, the entire record, including any
evidence, arguments of counsel, the written discovery on file, and the circumstances
surrounding the party‟s alleged discovery abuse, must be examined. Chrysler Corp. v.
Blackmon, 841 S.W.2d 844, 852-53 (Tex. 1992) (orig. proceeding).
Competing Needs


                                            10
        Sells signed a verification on August 26, 2008, that she wanted her son, Lynn
Sells, as her next friend. She filed her motion for the appointment of Lynn Sells as her
“next friend,” pursuant to rule of civil procedure 44, on September 4, 2008. She was
eighty-four years old at the time and had previously suffered four strokes. She described
her impairments and said she is physically incapable of managing her own interests and
the demands of the litigation. The motion was accompanied by Lynn Sells‟s affidavit in
which he described his mother‟s physical problems and said she was “mentally fairly
competent.” Peacock‟s certificate of conference stated that he attempted to contact
Britain to discuss the merits of the motion on three separate occasions and Britain did not
respond. Peacock set the motion for hearing on October 9.
        On September 24, Britain notified Peacock that he would set his motion to compel
and for sanctions regarding the written discovery for October 9 and issued a subpoena
commanding Sells to appear and testify at the October 9 hearing. He also served Peacock
with notice of his intention to take Sells‟s deposition on October 10 without first
discussing an agreed date. Britain wanted to depose Sells immediately due to age-related
memory concerns. He explained that he had a sense of urgency due to previous delays
and Sells‟s “alleged physical and/or mental status.”
        Peacock cancelled the scheduled next friend hearing because he wanted to first
obtain medical records and Dr. Chiu‟s deposition to use as evidence in support of his
motion. Peacock filed a motion to quash the deposition and for a protective order,
arguing that Sells was not physically able to travel or testify.       He asked that her
deposition be postponed until it could be determined if the deposition posed a health risk
to Sells.
        At the October 9 hearing, Shanklin explained that they had received a letter from
a nurse who works for Dr. Chiu, dated October 2, 2008, that first alerted them to a
problem with Sells‟s mental capacity. That letter was admitted for record purposes only.
Britain argued that he was entitled to ascertain by questioning Sells whether or not she
had a competency issue. On that same day, the court gave notice that the next friend
hearing had been reset to October 28. On October 10, Peacock sent a letter to Britain
informing him that Dr. Chiu would be available for his deposition on three different dates
in October. Britain informed Peacock that he would be out of town on those dates.
Peacock later learned that Dr. Chiu was available on six additional days in October and
November, but Britain never agreed to any date for Dr. Chiu‟s deposition. At the
                                       11
October 14 hearing, Lynn Sells testified, describing his mother‟s condition. He said she
was fairly competent but forgetful and needed her family to make her decisions. He did
not believe that she was able to go to court. He said testifying would create “serious
anxiety” for her, and he was afraid she would have a stroke.
       Texas Rule of Civil Procedure 44 allows for “persons non compos mentis who
have no legal guardian” to sue and be represented by a “next friend.” TEX. R. CIV. P. 44.
Rule 44 gives a next friend the same rights “concerning such suits” as a guardian has,
which necessarily include the ability to make any decision with respect to a lawsuit on
behalf of the incompetent person. See id.; TEX. PROB. CODE ANN. §§ 768, 774(a)(4)
(Vernon Supp. 2010). Rule 44 provides further that a next friend may, with court
approval, compromise suits and agree to judgments. TEX. R. CIV. P. 44.
       It is questionable whether a motion for next friend was the appropriate procedural
vehicle for raising the issue of Sells‟s ability to withstand the deposition or trial. See
Saldarriaga v. Saldarriaga, 121 S.W.3d 493, 499 (Tex. App.–Austin 2003, no pet.).
Peacock was correct, however, in attempting to address the issue. See Tex. Disciplinary
R. Prof‟l Conduct 1.02(g), reprinted in TEX. GOV‟T CODE ANN., tit. 2, subtit. G, app. A
(Vernon 2005) (Tex. State Bar R. art. X, § 9) (“A lawyer shall take reasonable action to
secure the appointment of a guardian or other legal representative for, or seek other
protective orders with respect to, a client whenever the lawyer reasonably believes that
the client lacks legal competence and that such action should be taken to protect the
client.”). But Peacock did not have the supporting medical information when he filed the
motion and did not obtain the doctor‟s affidavit until about two months later. Further,
Peacock‟s attempts to obtain the doctor‟s testimony were unsuccessful.
       Britain subpoenaed Sells to appear at the October 9 hearing so that he could
question her about her need for a next friend. He also scheduled her deposition for the
next day. Sells did not attend the October 9 hearing. In argument to the trial court,
Britain stated that Drott had been asking for discovery for two years and had gotten a
“roadblock” every time he attempted to move forward. But the record reveals that the
first phase of this lawsuit lasted slightly over two months in 2006. Then it was on appeal.
The discovery process began again when the supreme court‟s mandate issued on
August 22, 2008, which was about six and one-half weeks before the day Britain made
that statement. The trial court denied Sells‟s motion to quash and ordered her to appear
for the deposition without addressing the issue of her mental or physical ability to attend.
                                            12
Britain immediately filed his motion to compel because she did not attend the deposition
on October 10. The trial court granted that motion and ordered Sells to pay sanctions and
to appear for her deposition on October 30.
       When Sells did not appear, Drott immediately filed a motion to compel and for
sanctions. Two days after Peacock noticed Dr. Chiu‟s November 21 deposition, the trial
court granted Drott‟s motion to compel and ordered her to be deposed on November 11.
Four days before the scheduled November 11 deposition of Sells, Drott moved to quash
Dr. Chiu‟s deposition, effectively staying his deposition until the court could consider the
motion. On November 12, Drott again moved to compel Sells‟s deposition because she
did not attend on November 11. Drott insisted upon Sells‟s deposition even though he
knew there was a question about her health.
Undue Burden
       By accepting Drott‟s position, the trial court failed to focus on the primary matter
to be resolved. See Pelt v. Johnson, 818 S.W.2d 212, 218 (Tex. App.–Waco 1991, orig.
proceeding). When Sells filed her motion for appointment of next friend, Drott and the
trial court were put on notice that there was a problem. When Sells filed her motion to
quash the subpoena and for a protective order alleging health concerns, she was implicitly
arguing that her appearance in court or for the deposition constituted an undue burden.
The rules of civil procedure dictate that the court must provide protection from undue
burden caused by issuance of a subpoena or by discovery methods. See TEX. R. CIV. P.
176.7, 192.4, 192.6(b). To protect a movant from undue burden, or the invasion of
personal or constitutional rights, the court may make any order in the interest of justice.
TEX. R. CIV. P. 192.6(b). Moreover, courts may limit discovery pending resolution of
threshold issues like venue, jurisdiction, forum non conveniens, and official immunity.
See id.; see also In re Alford Chevrolet-Geo, 997 S.W.2d 173, 181 (Tex. 1999) (orig.
proceeding) (observing that rule for level 3 discovery control plan contemplates that plan
may “phase discovery to resolve discrete issues”).
       In this case, the prudent course of action would have been for the trial court to
address the issues raised by Sells‟s motion for the appointment of a next friend. We are
hard pressed to say that any sanction for her refusal to attend a deposition before
addressing the health concerns can be justified. But we definitely cannot say that death
penalty sanctions are justified.
TransAmerican Factors
                                              13
        A just sanction must be directed against the abuse and toward remedying the
prejudice caused to Drott. See Powell, 811 S.W.2d at 917. Here, the “abuse” was Sells‟s
refusal to appear for a deposition. The rationale for her refusal was the determination that
her health and the possibility of having another stroke should take precedence over
Drott‟s need for her testimony until after proper medical evidence could be presented.
We acknowledge the possibility of prejudice from the dimming of Sells‟s memory. See
Pelt, 818 S.W.2d at 217. But the quality of her memory is necessarily subsumed by her
overall physical and mental health. Drott argues that Lynn Sells‟s testimony indicates
that Sells was able to attend her deposition. We disagree. The fact that she could take a
pleasure trip to visit family does not mean she could withstand the stress of traveling to
be deposed or to testify in court. Additionally, there was the concern of the stress caused
by giving testimony, either by deposition or in court.
        The death penalty sanction insured that Sells would not miss another deposition,
or have to risk a stroke, and more than compensated Drott for prejudice he endured by
not having a pretrial deposition of his defendant. The trial court imposed lesser sanctions
before imposing the death penalty sanctions. It ordered Sells to pay fees of $2,500.00
and $1,562.50 for missing the first two deposition dates. It also ordered her to pay fees of
$1,500.00 for missing the third deposition date. But since that sanction was ordered at
the same time the trial court imposed the death penalty sanctions, we do not consider the
$1,500.00 sanction to be prior use of a lesser sanction. The court also ordered her to pay
$2,000.00 for failing to respond to interrogatories and an additional $1,500.00 for failing
to respond, although that sanction was imposed after she had complied. That sanction
also was imposed on the same day the death penalty sanction was imposed. Therefore,
like the sanction for failing to appear at the last scheduled deposition, this sanction could
not have been imposed in an attempt to first test the persuasiveness of lesser sanctions.
Imposition of the least severe sanction adequate to remedy the discovery abuse would
ordinarily result in an appropriate sanction and should advance the goal of the elimination
of “hard ball” discovery practices where the death penalty, rather than true discovery in
preparation for trial on the merits, is the goal. Id. at 216 n.1.
        Finally, we cannot say that Sells‟s refusal to attend the deposition based on health
concerns justifies a presumption that her claims or defenses lack merit. See Powell, 811
S.W.2d at 918. Peacock made several attempts to secure the doctor‟s deposition, an act
made more difficult because he also had to address Drott‟s attempts to obtain Sells‟s
                                        14
deposition and written interrogatories. Although medical evidence should have been
produced in early September, Dr. Chiu was available to be deposed in mid October, two
months before the death penalty sanction was imposed on December 18. Britain was
scheduled to be out of town on that date, but Peacock notified him that Dr. Chiu was also
available on October 28 and 31 and November 7, 14, 18 and 21. However, Peacock
received no response. The court did have before it Dr. Chiu‟s affidavit, which was based
on his personal knowledge, in which he specifically stated that Sells “is not mentally nor
physically capable of enduring the stress of testifying at a deposition or trial, or appearing
for a trial.” Peacock consistently argued that Sells should not attempt to appear at a
deposition or at trial until after her mental and physical limitations had been ascertained.
This is not an indication of bad faith on the part of Sells or callous disregard for the
responsibilities of discovery by Peacock. See id. Further, during the time period when
she refused to attend depositions, she completed the written discovery. Sells paid the
$2,500.00 sanction for missing the first scheduled deposition and had complied with all
requests for written discovery as of November 24.
       Death penalty sanctions violate due process absent a party‟s flagrant bad faith or
counsel‟s callous disregard for the discovery process. Id. We conclude that the sanction
imposed on Sells, the loss of her right to defend against Drott‟s suit, did not relate to her
failure to appear at her deposition.      See F.N. Fausing Trading APS v. Estate of
Barbouti, 851 S.W.2d 314, 317 (Tex. App.–Houston [1st Dist.] 1992, writ denied).
Striking Sells‟s pleadings and rendering a default judgment is more severe than necessary
to satisfy the legitimate purposes of sanctions for discovery abuse.         Given that the
ultimate purpose of discovery is to seek the truth, so that disputes may be decided by
what the facts reveal rather than by what facts are concealed, all parties and the trial court
should be concerned with learning the truth about Sells‟s health. See Garcia v. Peeples,
734 S.W.2d 343, 347 (Tex. 1987) (orig. proceeding). Here, the goal of the discovery
process was frustrated by the adversarial approach used.           Attorneys must balance
common sense and compassion with zealous advocacy. The trial court should have
balanced the parties‟ competing needs and rendered an order tailored to the situation,
allowing the parties to quickly get to the truth of the issue of Sells‟s health and ability to
appear for a deposition rather than allowing Drott to focus on Sells‟s deposition.
       The death penalty sanction was an excessive sanction for Sells‟s failure to appear
for her scheduled depositions. Thus, the trial court abused its discretion in imposing the
                                           15
death penalty sanction. See Siegel v. Smith, 836 S.W.2d 193, 195 (Tex. App.–San
Antonio 1992, writ denied) (holding denial of protective order was abuse of discretion
where party presented evidence that failure to attend deposition was due to illness).
Similarly, the trial court abused its discretion in assessing the monetary sanctions. The
rules allow for the possibility that opposition to discovery may be justified, stating that a
court shall require a party failing to comply to pay reasonable expenses unless the court
finds that the failure was substantially justified. TEX. R. CIV. P. 215.1(d), 215.2(b)(8).
Here, Sells‟s failure to comply with the requests and orders was justified. Thus, the trial
court abused its discretion when it ordered Sells, on three different occasions, to pay
Drott‟s attorney‟s fees for missing the scheduled depositions and, on two different
occasions, to pay Drott‟s attorney‟s fees for failing to complete interrogatories as ordered.
We sustain Sells‟s first issue.

                                      DR. CHIU’S AFFIDAVIT
       In her third issue, Sells asserts the trial court erred in failing to consider Dr.
Chiu‟s affidavit. She argues that the affidavit was properly before the court in support of
her various motions through which she attempted to show she should not be compelled to
appear for a deposition without the court first determining if she was mentally and
physically capable of doing so. We note that, at the October 9 hearing, the trial court
suggested Sells obtain an affidavit from her doctor. Sells relies on rule of civil procedure
199.6 as authority, while Drott argues that rule 199.6 applies only to objections and
assertions of privilege made during a deposition.
       We review a trial court‟s evidentiary rulings for an abuse of discretion. Bay Area
Healthcare Group, Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007). A trial court
abuses its discretion when it acts without regard to any guiding principles. City of
Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex. 1995). The title of rule 199 is
“Depositions Upon Oral Examination.”           The title of rule 199.6 is “Hearing on
Objections.” Rule 199.6 refers to “an objection or privilege asserted by an instruction not
to answer or suspension of the deposition” and provides that the party seeking to avoid
discovery must present evidence by testimony or affidavit. TEX. R. CIV. P. 199.6.
       Although rule 199.6 does not explicitly cover a situation such as this where a
party objected to appearing for a deposition, we conclude that it implicitly applies here.
Prior rule 166b(5) provided that a motion for a protective order made by any person from
                                             16
whom discovery is sought may have exhibits attached, including affidavits. TEX. R. CIV.
P. 166b(5) (1983, repealed 1999). Citing prior rule 166b(4), which allows affidavits in
support of claims of exemptions and immunity, the supreme court has allowed affidavits
in support of a motion for protective order seeking to limit use of discovered documents.
Garcia, 734 S.W.2d at 345. A party who seeks to exclude matters from discovery on
grounds that the requested information is unduly burdensome may submit an affidavit in
support of its position. See In re Amaya, 34 S.W.3d 354, 357 (Tex. App.–Waco 2001,
orig. proceeding). A party whose deposition has been noticed may assert a privilege,
seek protection, and assert affidavits as evidence to support the privilege asserted. In re
Baptist Hosps. of Se. Tex., 172 S.W.3d 136, 141 (Tex. App.–Beaumont 2005, orig.
proceeding). When a plaintiff seeks to depose an official at the highest level of corporate
management, that official may move for a protective order to prohibit the deposition,
supported by his affidavit. Crown Cent. Petroleum Corp. v. Garcia, 904 S.W.2d 125,
128 (Tex. 1995) (orig. proceeding). We also note that the legislature and the supreme
court have discouraged oral presentation of testimony for pretrial matters when it can be
fairly submitted in writing. See Michiana Easy Livin’ Country, Inc. v. Holten, 168
S.W.3d 777, 782 (Tex. 2005).
       Collectively, that body of authority supports a determination that rule 199.6
applies to allow an affidavit in support of Sells‟s attempt to avoid her deposition. Here,
Dr. Chiu‟s affidavit was based on personal knowledge and identified enough facts to
serve its purpose. It was sufficient for the court to conclude that, because Sells may have
competency and health issues, discovery should be suspended while those issues were
investigated. See Garcia, 734 S.W.2d at 345. Thus, the trial court erred in failing to
consider Dr. Chiu‟s affidavit. We sustain Sells‟s third issue.

                                     DR. CHIU’S DEPOSITION
       In her second issue, Sells contends the trial court erred in quashing the notice of
deposition of Dr. Chiu. Drott argues that the deposition had been “arbitrarily noticed” at
a time when his counsel had multiple prior set hearings. Yet, he does not explain why
counsel did not respond when Peacock attempted to get an agreed date. The trial court
never reached the merits of the motion to quash because it imposed death penalty
sanctions against Sells. As explained above, the issue of Sells‟s capacity and ability to
attend a deposition should have been addressed first.        See TEX. PROB. CODE ANN.
                                            17
§ 683(a) (Vernon Supp. 2010); TEX. R. CIV. P. 176.7, 192.6(b). A deposition of her
treating physician would have been relevant. Nevertheless, because of our resolution of
Appellant‟s first and third issues, we do not reach Sells‟s second issue. See TEX. R. APP.
P. 47.1.

                                                   CONCLUSION
         The trial court abused its discretion in assessing death penalty sanctions against
Sells and refusing to consider Dr. Chiu‟s affidavit. Accordingly, we reverse the trial
court‟s judgment and remand this cause to the trial court for proceedings consistent with
this opinion.


                                                                BRIAN HOYLE
                                                                   Justice
Opinion delivered December 2, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J




                                               (PUBLISH)




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