                                                                         ACCEPTED
                                                                     03-15-00384-CV
                                                                             7881342
                                                          THIRD COURT OF APPEALS
                                                                     AUSTIN, TEXAS
                                                              11/18/2015 11:02:52 AM
                                                                   JEFFREY D. KYLE
                                                                              CLERK
               NO. 03-15-00384-CV

                                                   FILED IN
        IN THE COURT OF APPEALS     3rd COURT OF APPEALS
                                        AUSTIN, TEXAS
                FOR THE
                                   11/18/2015 11:02:52 AM
THIRD SUPREME JUDICIAL DISTRICT OF TEXAS
                                      JEFFREY D. KYLE
             AUSTIN, TEXAS                  Clerk



       CRYSTAL BINGHAM HERNANDEZ,
             Plaintiff/Appellant,

                        v.

               TIFFANY POLLEY,
               Defendant/Appellee.


On Appeal from Tom Green County Court at Law No. 2
             Tom Green County, Texas
         Trial Court Cause No. 12C482-L2


  APPELLEE’S RESPONSIVE BRIEF ON APPEAL


                      KIRK D. WILLIS
                      State Bar No. 21648500
                      JOSEPH M. GREGORY, III
                      State Bar No. 08436525
                      LORIN M. SUBAR
                      State Bar No. 19456800
                      THE WILLIS LAW GROUP, PLLC
                      10440 N. Central Expy. Suite 520
                      Dallas, Texas 75231
                      Telephone: 214-736-9433
                      Facsimile: 214-736-9994

                      ATTORNEYS FOR APPELLEE
                  IDENTITY OF PARTIES AND COUNSEL

      Pursuant to TEX. R. APP. P. 38.1(a), below is a supplement to the list of

parties and their counsel as provided to the Court in Appellant’s Brief on Appeal:

      Benton Williams, counsel for Tiffany Polley in the trial court, is no longer
           counsel for the Appellee

      Joseph M. Gregory, III was counsel for Tiffany Polley before the trial court
            and is counsel for Tiffany Polley on appeal. His address is: The
            Willis Law Group, PLLC, 10440 N. Central Expy, Suite 520, Dallas,
            Texas 75231;

      Lorin M. Subar is counsel for Tiffany Polley on appeal. His address is: The
            Willis Law Group, PLLC, 10440 N. Central Expy, Suite 520, Dallas,
            Texas 75231;




APPELLEE’S RESPONSIVE BRIEF ON APPEAL – Page ii
                                         TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ........................................................... ii

TABLE OF AUTHORITIES ....................................................................................iv
STATEMENT OF THE CASE .................................................................................. 2

RESPONSE POINTS PRESENTED ......................................................................... 2

STATEMENT OF THE FACTS ............................................................................... 3

STANDARD OF REVIEW ....................................................................................... 8

SUMMARY OF THE ARGUMENT ........................................................................ 9
RESPONSE POINT ONE - The Trial Court did not commit reversible error
    in dismissing the lawsuit as a sanction for failure to comply with the
    Trial Court’s order to produce certain documents. ........................................ 10
ARGUMENT AND AUTHORITY FOR RESPONSE POINT ONE ..................... 10

       A.      Plaintiff’s Duties Under TEX. INS. CODE § 462.001, et seq. ...................10
       B.      Plaintiff Did Not Produce Documents She was Ordered to Produce ......12

       C.      Dismissal was neither unreasonable nor improper..................................14

RESPONSE POINT TWO - The Trial Court did not commit reversible error
    in failing to enter findings of fact and conclusions of law in the same
    manner as presented by the Plaintiff. ............................................................ 21
ARGUMENT AND AUTHORITY FOR RESPONSE POINT TWO .................... 21

CONCLUSION ........................................................................................................ 22
PRAYER .................................................................................................................. 23




APPELLEE’S RESPONSIVE BRIEF ON APPEAL – Page iii
                                       TABLE OF AUTHORITIES

Cases
Bodnow Corp. v. City of Hondo, 721 S.W.2d 839 (Tex. 1986).................................8
Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48 (Tex. 2002) ......................................20
Cortinas v. Lopez, No. 13-14-00242-CV, 2014 Tex. App. LEXIS 13194 (Tex.
      App.—Corpus Christi Dec. 10, 2014, pet. denied) .......................................18
Donalson v. Horton, 256 S.W.2d 693 (Tex. Civ. App.—Amarillo 1952, writ ref’d
     n.r.e.) ..............................................................................................................22
GTE Communications Sys. Corp. v. Tanner, 856 S.W.2d 725 (Tex. 1993) ............16
Stritzinger v. Wright, No. 03-10-00455-CV, 2011 Tex. App. LEXIS 1427 (Tex.
       App.—Austin Feb. 23, 2011, pet. denied). ......................................................8
Thompson v. Lee Roy Crawford Produce Co., 233 S.W.2d 295 (Tex. 1950) .........22
Transamerica Natural Gas Corp., v. Powell, 811 S.W.2d 844 (Tex. 1992) ...........14
Villa Nova Resort, Inc. v. State, 711 S.W.2d 120 (Tex. App.—Corpus Christi 1986,
       no writ)...........................................................................................................22
Wade v. Taylor, 228 S.W.2d 922 (Tex. Civ. App.—Amarillo 1949, no writ) ........22

Statutes
TEX. INS. CODE § 462.001 ........................................................................................10
TEX. INS. CODE § 462.251 ................................................................................. 10, 15
TEX. INS. CODE § 462.252 ........................................................................................11
TEX. INS. CODE § 462.253 ........................................................................................11




APPELLEE’S RESPONSIVE BRIEF ON APPEAL – Page iv
Rules
TEX. R. APP. P. 33.1(a) .............................................................................................17
TEX. R. APP. P. 38.1(a) .............................................................................................. ii
TEX. R. CIV. P. 192.7(b) ...........................................................................................13
TEX. R. CIV. P. 215.2(b) ...........................................................................................17
TEX. R. CIV. P. 215.2(b)(5) ......................................................................................20
TEX. R. CIV. P. 296 ...................................................................................................21




APPELLEE’S RESPONSIVE BRIEF ON APPEAL – Page v
                             NO. 03-15-00384-CV


                   IN THE COURT OF APPEALS
                           FOR THE
           THIRD SUPREME JUDICIAL DISTRICT OF TEXAS
                        AUSTIN, TEXAS


                    CRYSTAL BINGHAM HERNANDEZ,
                          Plaintiff/Appellant,

                                       v.

                             TIFFANY POLLEY,
                             Defendant/Appellee.


             APPELLEE’S RESPONSIVE BRIEF ON APPEAL


TO THE HONORABLE COURT OF APPEALS:

      COMES NOW Tiffany Polley (hereinafter “Defendant”), and files her

Response to the Brief on Appeal of Appellant Crystal Bingham Hernandez

(hereinafter “Plaintiff”), and requesting that the dismissal and judgment in her

favor be affirmed, would show this Court of Appeals the following:




APPELLEE’S RESPONSIVE BRIEF ON APPEAL – Page 1
                           STATEMENT OF THE CASE

         Defendant accepts the Statement of the Case as stated in Appellant’s Brief,

with the following additional information:

         On April 27, 2011, the automobile insurer for Defendant, Reinsurance

Company of America, Inc., was placed into liquidation proceedings by an Illinois

court and designated as an “impaired insurer” by the Texas Commissioner of

Insurance pursuant to Texas Insurance Code chapter 462.1




                        RESPONSE POINTS PRESENTED


                             RESPONSE POINT ONE

         The Trial Court did not commit reversible error in dismissing the
         lawsuit as a sanction for failure to comply with the Trial Court’s
         order to produce certain documents.

                             RESPONSE POINT TWO

         The Trial Court did not commit reversible error in failing to enter
         findings of fact and conclusions of law in the same manner as
         presented by the Plaintiff.




1
    CR 64.


APPELLEE’S RESPONSIVE BRIEF ON APPEAL – Page 2
                        STATEMENT OF THE FACTS

      On March 19, 2013 Defendant served discovery requests (interrogatories

and document requests) on Plaintiff. On May 15, 2013 Defendant advised Plaintiff

that she had wholly failed to respond to the discovery requests. 2 Thereafter, on

July 8, 2013, with no responses having been received, Defendant filed a Motion to

Compel.3 The parties submitted an Agreed Order Granting Defendant’s Motion to

Compel and Plea in Abatement which was signed by the Trial Court on September

23, 2013.4 The Order provided Plaintiff would:

          1. Answer all interrogatories;

          2. Respond to all discovery requests;

          3. Execute an Affidavit Regarding Other Insurance;

          4. Provide insurance information regarding underinsured motorist
             coverage or provide a signed rejection page for such coverage;

          5. Provide insurance information regarding personal injury protection
             coverage or provide a signed rejection page for such coverage;

          6. Provide information regarding other applicable insurance coverage
             through Plaintiff or her spouse or others;

          7. Documents releasing assignments and explanation of benefits
             documents.5

2
  CR 71.
3
  CR 64.
4
  CR 72-73.
5
  CR 72-73.


APPELLEE’S RESPONSIVE BRIEF ON APPEAL – Page 3
       When the documents were not produced as promised by the Plaintiff and as

ordered by the Court, on June 30, 2014, Defendant filed her Motion to Dismiss and

for Sanctions.6       Plaintiff filed no response to that Motion prior to the Court’s

hearing the Motion on October 7, 2014.

       At the hearing on the Motion to Dismiss, held on October 7, 2014, Plaintiff

provided no reason or excuse for failing to respond to the discovery requests of the

Defendant or the prior Order of the Court. In fact, as noted by Defendant’s counsel

at the hearing, and without objection by Plaintiff’s counsel, Plaintiff did not

produce even a copy of the relevant insurance policy7 and other documents until

the hearing.8

       At the hearing, the parties discussed additional production of documents by

November 17, 2014. The Trial Court therefore indicated:

       This is what I’m going to do. I’m going to give you the date that y’all
       agreed upon before I walked into the courtroom, but he doesn’t have
       everything he should have under the prior motions and by that date,
       I’m going to grant his motion to dismiss.9

The response to the Trial Court from Plaintiff’s counsel was “Okay.”10




6
  CR 74.
7
  RR Vol. II, p. 4, line 18.
8
  RR Vol. II, p. 6, lines 16-19.
9
  RR Vol. II, p. 8, lines 7-12.
10
   RR Vol. II, p. 8, line 13.


APPELLEE’S RESPONSIVE BRIEF ON APPEAL – Page 4
          But the Trial Court was not through addressing the issue with Plaintiff’s

counsel. The Trial Court noted that while some of the information to be produced

was under the control of others, a year was more than enough time to respond fully

to the discovery as requested, and therefore the Trial Court again indicated it

would grant the Motion to Dismiss if there was not a full response.11

          The day after the hearing on the Motion to Dismiss, Plaintiff produced some

of the records responsive to the Court’s Order.12 The records produced showed

that Plaintiff had made no real effort to meet the original Order (dated September

27, 2013) from the Trial Court. In fact, the produced documents indicate no effort

was made until after Defendant filed her Motion to Dismiss in July of 2014:

              1. A letter from NexClaim regarding an assignment of benefits was

                  dated July 8, 2014 even though the last service date was September

                  16, 2013;

              2. An Explanation of Benefits letter from CIGNA was dated July 8, 2014

                  even though the last treatment covered was on December 16, 2010.

          On January 8, 2015, the Trial Court reconvened to address whether Plaintiff

had met the September 2013 Order on Defendant’s Motion to Compel. At the

hearing, Plaintiff’s counsel argued that all he had to produce was four medical


11
     RR Vol. II, p. 8, line 14 to p. 9, line 1.


APPELLEE’S RESPONSIVE BRIEF ON APPEAL – Page 5
records in order to avoid further sanctions from the Trial Court, and therefore he

met all of the requirements under the Trial Court’s Order. 13 The above-referenced

exchange between the Trial Court and Plaintiff’s counsel (regarding dismissing the

case) was then quoted back to the Trial Court – “everything he should have under

the prior motions and by that date.”14 The Trial Court addressed some of the

crucial information still lacking; specifically information regarding other insurance

payments made on the Plaintiff’s behalf.15

       As noted by counsel for the Defendant, and as agreed upon by counsel for

the Plaintiff, the Plaintiff for the second time walked into court with a document

dump of information,16 trying to contend that now he had provided all of the

information ordered to be produced. But as argued by Defendant’s counsel, even

with the document dump, Plaintiff had still not provided the information crucial to

move forward with the litigation – what was actually paid by insurance.17

       The Trial Court was not oblivious to the actions of Plaintiff’s counsel in

dumping documents on Defendant’s counsel at the courthouse then attempting to



12
   CR 86.
13
   RR Vol. III, p. 7, line 21 to p. 8, line 21.
14
   RR Vol. III, p. 7, lines 17-23.
15
   RR Vol. III, p. 14, line 5 to p. 15, line 3.
16
   RR Vol. II, p. 6, lines 16-19; RR Vol. III, p. 11, lines 1-5 and attachments; RR Vol. III, p. 25,
lines 12-18.
17
   RR Vol. III, p. 25, lines 12-18.


APPELLEE’S RESPONSIVE BRIEF ON APPEAL – Page 6
force Defendant’s counsel to agree he had met the requirements of the Court’s

Order. As stated by the Trial Court:

        I don't expect you or you ever to be handed something or any other
        attorney to be handed something in court without time to review it, to
        give it a cursory look over, and be held to that if you get back to the
        office and after review said oh, well, wait a minute, it doesn't have
        this. I wouldn't want somebody to hold me to that, and I wouldn't hold
        the attorneys in my court to that. Something that is produced in court
        and handed to you and said, oh, here this is and you've got it, okay,
        that looks like what I've asked for, okay. If you get back to the office
        and go, well, Judge, that wasn't quite all I asked for, I'm not going to
        argue with you about that. I'm not going to hold you to that either.18

After Plaintiff’s counsel was given an opportunity to explain why, some 22 months

after being served with discovery, the discovery was still not responded to in full,

the Trial Court continued:

        The issue before the Court is that this has been pending for quite
        sometime; and the responses to the discovery, even from what I'm
        looking at in a very limited capacity before the Court, at what I'm
        seeing has been filed before the Court, is – is sometimes your client's
        responses were sloppy, sometimes they were inaccurate, and
        sometimes they were incomplete. It would be one thing if this was
        three or four months into it, but it is not.19

Therefore, after again noting Plaintiff had enough time to respond, the Trial Court

dismissed the case.20



18
   RR Vol. III, p. 26, lines 10-23.
19
   RR Vol. III, p. 38, line 17 to p. 39, line 1.
20
   RR Vol. III, p. 39, lines 17-23.


APPELLEE’S RESPONSIVE BRIEF ON APPEAL – Page 7
                           STANDARD OF REVIEW

      As stated by the Texas Supreme Court:

      A trial court may impose sanctions on any party that abuses the
      discovery process. TEX. R. CIV. P. 215. The discovery sanctions
      imposed by a trial court are within that court's discretion and will be
      set aside only if the court clearly abused its discretion.21

Therefore, the standard of review is whether the trial court clearly abused its

discretion in dismissing Plaintiff’s lawsuit. As stated by the Hon. Bob Pemberton:

      A trial court abuses its discretion only if it acts in an arbitrary and
      unreasonable manner or without reference to any guiding rules and
      principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,
      241-42 (Tex. 1985). An abuse of discretion does not occur merely
      because the trial court decides a matter within its discretionary
      authority in a different manner from an appellate court in a similar
      circumstance. 22




21
 Bodnow Corp. v. City of Hondo, 721 S.W.2d 839, 840 (Tex. 1986).
22
  Stritzinger v. Wright, No. 03-10-00455-CV, 2011 Tex. App. LEXIS 1427, *13-14 (Tex.
App.—Austin Feb. 23, 2011, pet. denied).


APPELLEE’S RESPONSIVE BRIEF ON APPEAL – Page 8
                      SUMMARY OF THE ARGUMENT

      Both the decision to dismiss the lawsuit and the timing of that decision were

within the sound discretion of the Trial Court. The Trial Court extended itself in

every manner possible prior to dismissing the Plaintiff’s lawsuit.       Plaintiff’s

counsel acknowledged on the record that he understood the case would be subject

to dismissal if Plaintiff failed to produce the information contained in the

AGREED Order on Defendant’s Motion to Compel. Therefore, the Trial Court did

not abuse its discretion when it dismissed the lawsuit based on Plaintiff’s repeated

failure to produce the required documents. Consequently, this Court of Appeals

should affirm the Judgment of the Trial Court.




APPELLEE’S RESPONSIVE BRIEF ON APPEAL – Page 9
                         RESPONSE POINT ONE (RESTATED)

          The Trial Court did not commit reversible error in dismissing the
          lawsuit as a sanction for failure to comply with the Trial Court’s
          order to produce certain documents.

         ARGUMENT AND AUTHORITY FOR RESPONSE POINT ONE

          A.     Plaintiff’s Duties Under TEX. INS. CODE § 462.001, et seq.

          As pled by the Defendant and as acknowledged by the Plaintiff, Defendant’s

automobile insurer was designated an impaired insurer pursuant to the Texas

Property and Casualty Insurance Guaranty Act23 (the “Guaranty Act”). Plaintiff’s

rights against the Defendant became subject to the Guaranty Act, which provides

certain protections for Defendant and imposes duties on Plaintiff, as follows:

          § 462.251 - Exhaustion of Rights Under Other Policy Required:

          (a) 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, personal injury
                 protection, medical payment, liability, or other insurance
                 policy[.]24

                                          ****

23
     TEX. INS. CODE § 462.001, et seq.
24
     TEX. INS. CODE § 462.251.


APPELLEE’S RESPONSIVE BRIEF ON APPEAL – Page 10
       § 462.252 - Reduction in Amount of Covered Claim for Other
       Policy:

       (a) Except as provided by Subsection (b), an amount payable as a
       covered claim under this chapter is reduced by the full applicable
       limits of another insurance policy described by Section 462.251, and
       the association shall receive a full credit in the amount of the full
       applicable limits of the other policy[.]25

                                     ****

       § 462.253 - Effect on Insured of Reduction in Amount of Covered
       Claim:

       To the extent that the association’s obligation is reduced by the
       application of Sections 462.251 and 462.252, the liability of the
       person insured by the impaired insurer’s policy for the claim is
       reduced in the same amount.26

       Of particular note in the above-quoted sections of the Insurance Code are:

(1) it is the duty of the Plaintiff to first exhaust her rights under all other insurance

policies, including automobile and health insurance policies,27 and (2) the

Defendant’s potential liability to Plaintiff is reduced by the full amounts of any

applicable insurance policy.

       The importance of directing the Court and Plaintiff as indicated immediately

above is two-fold. First, Plaintiff has to actively seek recovery from all other


25
   TEX. INS. CODE § 462.252.
26
   TEX. INS. CODE § 462.253.
27
   TEX. INS. CODE § 462.251.


APPELLEE’S RESPONSIVE BRIEF ON APPEAL – Page 11
sources of insurance before pursuing her claim against the insured of an impaired

insurer. Second, the Defendant is entitled to a credit for the full limits of such

other insurance policies. Therefore, a plaintiff with health insurance who fails to

submit her medical bills for payment is nevertheless subject to an offset for the full

amount of available insurance.

       B.     Plaintiff Did Not Produce Documents She was Ordered to
              Produce

       In the end, the Trial Court did not base its dismissal on the broad request for

production of all documents proving Plaintiff had met the minimum provisions of

the Texas Insurance Code,28 but rather on the overall nature of the failed responses

after two years and two orders compelling the production.

       Rule 192.7 (b) of the Texas Rules of Civil Procedure states that “Possession,

Custody, or Control of an item means that the person either has physical

possession of the item or has a right to possession of the item that is equal or

superior to the person who has physical possession of the item.” 29 Plaintiff never

asserted that she did not have the better right to obtain the requested information

regarding other insurance. Plaintiff never contended that the Defendant would be

in a better position to get the records, or even in an equal position to get the


28
  TEX. INS. CODE § 462.251 (that all rights of recovery under all other policies of insurance had
been exhausted).


APPELLEE’S RESPONSIVE BRIEF ON APPEAL – Page 12
records. Further, Plaintiff never indicated she could not get the information. On

the contrary, Plaintiff admitted that at some point (about a year after the Trial

Court had compelled the same) she did obtain some of the requested information.

Yet even having possession of the responsive documents, Plaintiff did not produce

the documents until the date of the hearing, and even then, the production was still

wanting.30

          Plaintiff waited more than a year after being ordered to produce documents

and only until facing dismissal before making any attempt whatsoever to comply

with the Trial Court’s Order of September 13, 2013 or to otherwise meet the

requirements of TEX. INS. CODE § 462.251 to ensure all other insurance had been

exhausted.

          At any time prior to the dismissal, Plaintiff could have produced the

information requested. Instead, Plaintiff produced nothing but argument. The

Trial Court gave Plaintiff numerous opportunities to comply, but in the end,

dismissing the case was solely the result of Plaintiff’s consistent and continual

failure to act until it was too late.




29
     TEX. R. CIV. P. 192.7(b).
30
     RR Vol. III, p. 32, line 9 to p. 40, line 11.


APPELLEE’S RESPONSIVE BRIEF ON APPEAL – Page 13
         C.     Dismissal was neither unreasonable nor improper.

         Plaintiff was charged with prosecuting her own case and wholly failed to

make any effort to do so until her case was dismissed. From March 19, 2013 until

September 27, 2013, Plaintiff did nothing to respond to discovery requests (even

though she herself had served discovery with her Original Petition). Plaintiff

further did nothing to meet her burden under the Texas Insurance Code.

         After agreeing to produce the list of documents in the September 27, 2013

Order on Defendant’s Motion to Compel, she then did nothing until dumping

documents on the Defendant at the hearing on the Motion to Dismiss more than a

year later.

         Plaintiff cites the usual list of cases, starting with Transamerica Natural Gas

Corp., v. Powell,31 regarding the use, imposition, and purpose of sanctions and,

with specificity, the “death penalty” sanction of dismissal. But Plaintiff provides

this Court with no facts or argument as to why that ultimate penalty was improper

in this case.

         As stated by the Supreme Court in TransAmerica:

         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.
         However, if a party refuses to produce material evidence, despite the

31
     811 S.W.2d 844 (Tex. 1992).


APPELLEE’S RESPONSIVE BRIEF ON APPEAL – Page 14
       imposition of lesser sanctions, the court may presume that an asserted
       claim or defense lacks merit and dispose of it.32 [Emphasis added].

As the Court states, when a party systematically ignores the trial court’s orders to

produce evidence, the court may presume that the claim lacks merit.

       An examination of the information sought in the present case not only

supports the presumption, but bears its imposition. As noted above, Plaintiff’s

ability to bring a claim against the Defendant hinges on the Plaintiff first showing

that all other sources of insurance have been exhausted.33 Plaintiff was ordered to

produce this information in September of 2013. Plaintiff took no action until

October of 2014, and which time she was told she needed to produce the

information by November of 2014 (as agreed upon by the Plaintiff) or the case

would be dismissed. Plaintiff was again given another month and a half to comply

but still failed to produce the necessary information.

       Because Plaintiff refused to produce the necessary information “the court

[could therefore] presume that an asserted claim or defense lacks merit and dispose

of it.”34 The only issue therefore is how the need to “test lesser sanctions” has

been interpreted by the courts.



32
   TransAmerica, 811 S.W.2d at 917.
33
   TEX. INS. CODE § 462.251.
34
   TransAmerica, 811 S.W.2d at 917.


APPELLEE’S RESPONSIVE BRIEF ON APPEAL – Page 15
      It bears repetition at the beginning of this analysis that months before the

Trial Court’s final judgment, Plaintiff’s counsel specifically admitted he was

well aware that failure to produce the required records would result in dismissal.

      Plaintiff relies on Cire v. Cummings,35 for the proposition that the Trial

Court acted improperly in dismissing Plaintiff’s lawsuit. But Plaintiff fails to

recognize the Cire Court’s limitation on TransAmerica.

      In Cire, the Supreme Court noted while the general rule still persists in the

Court’s desire to have trial courts consider lesser sanctions:

      Nothing in the standard . . . requires that a trial court test the
      effectiveness of lesser sanctions by actually implementing and
      ordering each and every sanction that could possibly be imposed
      before striking the pleadings of a disobedient party. Nor does . . . [the
      standard] . . . require a trial court to list each possible lesser sanction
      in its order and then explain why each would be ineffective.36

      Other Texas Courts have since applied the Cire standard that “"the court

need not test the effectiveness of each available lesser sanction by actually

imposing the lesser sanction on the party before issuing the death penalty.” 37

While it is admitted that the discovery issues in Imagine Auto were much more

convoluted than in the instant cause,38 the basic and most important fact remains

35
   134 S.W.3d 835 (Tex. 2004).
36
   Id. at 842 (citing GTE Communications Sys. Corp. v. Tanner, 856 S.W.2d 725, 730 (Tex.
1993)).
37
   Imagine Auto. Group, 430 S.W.3d at 634, (citing Cire, 134 S.W.3d at 842).
38
   Imagine Auto., 430 S.W.3d at 626-29.


APPELLEE’S RESPONSIVE BRIEF ON APPEAL – Page 16
the same – that in each case the trial court gave the offending party multiple

opportunities to comply, with the only sanction being the threat to dismiss prior to

actually dismissing the case.39

       While the Cire Court’s opinion stated that the above provision was not

universal, its application being only for “exceptional misconduct,”40 Defendant

would show that the “exceptional” standard exists here.41

       Plaintiff’s position demands that a trial court back up its discovery orders

with sanctions at every turn as it assumes that without sanctions, the parties, and

more importantly their attorneys, would always ignore the gravity of the order

compelling discovery itself, essentially making a party immune from dismissal so

long as the trial court fails to impose some other sanction. Further, it suggests that

a trial court’s reticence to otherwise sanction a party with one of the list of Rule

215 non-dismissal sanctions42 moots even the express threat to dismiss a case for

noncompliance.



39
    Id. at 630 (“’it took the Court to threaten contempt upon the defendants’” to obtain their
compliance.”).
40
   Id.
41
    No reasoning was provided in the Trial Court’s ruling; however any error regarding the
technical aspects of the final dismissal was waived. See TEX. R. APP. P 33.1(a); see also
Alexander, 956 S.W.2d at 714 (Although rule requiring the court to specify the basis for
sanctions was mandatory, the error is waived if the complaining party fails to object to the form
of the order.).
42
   See TEX. R. CIV. P. 215.2(b).


APPELLEE’S RESPONSIVE BRIEF ON APPEAL – Page 17
      Defendant would be remiss in not addressing the Thirteenth Court of

Appeals’ decision in Cortinas v. Lopez,43 which also addressed the issue of the trial

court dismissing a plaintiff’s lawsuit for repeated failures to respond to discovery.

That discussion must begin by Defendant pointing out to this Court that while

Plaintiff presented her argument on Cortinas as a block-quote, in fact the cited

language, save one portion, does not appear in the Court’s opinion, nor does it

reflect the language or tenor of the appeals court’s opinion. Specifically, the Court

of Appeals never “rebuked” the defendant’s argument regarding the lien

assignment, nor “denounced” defendant’s argument that the trial court had, as in

the instant cause, warned the offending party that continued discovery abuses

would lead to a dismissal.

      Further, Plaintiff has failed to point to the distinct differences between

Cortinas and the present cause, making the discovery abuses in this case much

more distinct. As the Cortinas Court noted, the discovery issues which led to the

dismissal were not even included in any actual discovery requests.44 The discovery

request were seeking an insurance policy page; however defendant’s counsel, for




43
   No. 13-14-00242-CV, 2014 Tex. App. LEXIS 13194, *1 (Tex. App.—Corpus Christi Dec. 10,
2014, pet. denied).
44
   Id. at *19.


APPELLEE’S RESPONSIVE BRIEF ON APPEAL – Page 18
the first time in a hearing, asked instead for explanation of benefits documents.45

Likewise, the Cortinas Court discussed the “confusion” surrounding the other

document at issue, a Release of Assignment of Lien, which again was not included

in either any discovery request or order.46

        Neither of the document confusion issues in Cortinas exist in the present

case. The Order on Defendant’s Motion to Compel was an “Agreed Order”

bearing the signature of Plaintiff’s counsel agreeing to produce all of the

documents identified therein, including a full and complete Affidavit Regarding

Other Insurance and, as specifically and separately set out, “all Release of

Assignment documents from any healthcare provider, as well as any and all

Explanation of Benefit documentation.”47         Therefore, unlike in Cortinas, the

Plaintiff in the instant case could not claim confusion in an attempt to avoid the

dismissal.

        What is similar both here and in Cortinas is that in each case, the trial court

made clear that failure to fully comply with its expectations would be met with the

most severe of sanctions. And the argument put forth before this Court by counsel

for this Defendant is the same as that put forth by the same counsel for the


45
   Id.
46
   Id. at *20-21.
47
   CR 72.


APPELLEE’S RESPONSIVE BRIEF ON APPEAL – Page 19
defendant in Cortinas: When a party has wholly failed to abide by the rules of

discovery to the point where a trial court expressly and specifically states their

case will be dismissed for any further abuses, should the offending party simply be

able to intentionally ignore the trial court, knowing that the court’s very specific

edict really means nothing? Is there not some reason why a party, especially one

represented by counsel, should not assume that the trial court has the power to back

up its words with deeds, as specifically set out and allowed for under TEX. R. CIV.

P. 215.2(b)(5)?

         In revisiting the standard of review of the Trial Court’s dismissal, as set out

by the Texas Supreme Court in Bowie Mem'l Hosp. v. Wright and its progeny, it is

not up to this Court to “substitute [their] judgment for that of the trial court in

matters committed to the trial court's discretion.”48 Further, the only reason a

reviewing court will veer away from that principal is if a trial court “acts in an

arbitrary and unreasonable manner or without reference to guiding rules or

principles.”49 The Trial Court gave Plaintiff every opportunity to comply with its

agreed production order, right up to the date the case was dismissed.

         Plaintiff’s counsel acknowledged that the case would be ripe for dismissal if

all of the documents covered in the Trial Court’s Order were not produced, yet


48
     Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).


APPELLEE’S RESPONSIVE BRIEF ON APPEAL – Page 20
even four months later, Plaintiff’s counsel was still attempting to excuse Plaintiff’s

non-compliance.         Plaintiff has provided no compelling reason why the Trial

Court’s Judgment should be disturbed on appeal.



                        RESPONSE POINT TWO (RESTATED)

         The Trial Court did not commit reversible error in failing to enter
         findings of fact and conclusions of law in the same manner as
         presented by the Plaintiff.

        ARGUMENT AND AUTHORITY FOR RESPONSE POINT TWO


         Plaintiff contends the Trial Court committed reversible error in not accepting

the     verbiage   of    a   finding   of   fact   as   suggested   by   the   Plaintiff.

Specifically, Plaintiff demanded that the Trial Court find that the sole reason for

dismissing Plaintiff’s lawsuit was that she failed to fill in a blank in the Affidavit

of Other Insurance indicating the amounts she had received by other insurers.50

         The operative procedural rule, TEX. R. CIV. P. 296, does not demand that a

court accept a proposed finding of fact as the finding of the court. “Findings of

Fact and Conclusions of Law need not be in any particular form other than that

they must be in writing, Rule 296, and be ‘filed with the Clerk and shall be part of


49
     Id.
50
     CR 200.


APPELLEE’S RESPONSIVE BRIEF ON APPEAL – Page 21
the record.’”51    Further, “[i]t is not required to make findings on evidentiary

matters as distinguished from controlling matters or on every controverted fact or

on findings that are in conflict with its original findings.”52            A court is not

compelled to make findings in the specific form requested, but, rather, is

authorized to make its own findings prepared in its own way.53 Rather than being a

point of error for the party seeking to force a court to accept their rendition of the

facts, some courts have found that the refusal to make a particular tendered finding

is tantamount to a finding contrary to the request.54

       The Trial Court made clear in both its initial findings of fact and in its

additional findings of fact that the dismissal was the result of the Plaintiff’s

continuing to ignore the Trial Court’s Order, making it necessary under TEX. R.

CIV. P. 215 to dismiss the case.55

                                     CONCLUSION

       The Trial Court provided the Plaintiff with ample opportunity to comply

with the Court’s production order so as to meet the requirements of the Rules and

the Insurance Code and proceed to trial.            Plaintiff failed to avail herself of


51
   Villa Nova Resort, Inc. v. State, 711 S.W.2d 120, 124 (Tex. App.—Corpus Christi 1986, no
writ).
52
   Wade v. Taylor, 228 S.W.2d 922, 925 (Tex. Civ. App.—Amarillo 1949, no writ).
53
   Donalson v. Horton, 256 S.W.2d 693, 697 (Tex. Civ. App.—Amarillo 1952, writ ref’d n.r.e.).
54
   Thompson v. Lee Roy Crawford Produce Co., 233 S.W.2d 295, 297 (Tex. 1950).
55
   CR 206.


APPELLEE’S RESPONSIVE BRIEF ON APPEAL – Page 22
numerous opportunities over the course of two years to avoid dismissal.          As

Plaintiff has failed to meet the minimum standard for reversal of the Trial Court’s

dismissal, this Court of Appeals should affirm the Judgment.

                                    PRAYER

      WHEREFORE, PREMISES CONSIDERED, Tiffany Polley prays that this

Court affirm the judgment of Tom Green County Court at Law No. 2 in dismissing

the claims and causes of action of Crystal Bingham Hernandez, and for all other

and further relief, both at law and in equity, to which Defendant is due and owing.

                                      Respectfully submitted,


                                      THE WILLIS LAW GROUP, PLLC

                                      ___/s/ Lorin M. Subar         _______
                                      KIRK D. WILLIS
                                      State Bar No. 21648500
                                      JOSEPH M. GREGORY, III
                                      State Bar No. 08436525
                                      LORIN M. SUBAR
                                      State Bar No. 19456800
                                      10440 N. Central Expy Ste 520
                                      Dallas, Texas 75231
                                      Telephone: (214) 736-9433
                                      Facsimile: (214) 736-9994

                                      ATTORNEYS FOR APPELLEE




APPELLEE’S RESPONSIVE BRIEF ON APPEAL – Page 23
                             CERTIFICATE OF SERVICE

      The undersigned hereby certifies that a true and correct copy of the
foregoing document has been forwarded to all parties or their counsel of record on
this 18th day November, 2015 in accordance with the Texas Rules of Appellate
Procedure.

      Via Facsimile – 325-658-8000
      Rick DeHoyos
      Law Offices of Rick DeHoyos, PLLC
      502 S. Irving
      San Angelo, Texas 76903

                                                /s/ Lorin M. Subar
                                            LORIN M. SUBAR


                      CERTIFICATE OF COMPLIANCE

      Should the same be necessary, Appellee would show the Court that the total

number of words in the body of this Brief (pages 1 through 25 exclusive of

footnotes) is 4,172 words.



                                            _/s/Lorin M. Subar    ___
                                            Lorin M. Subar




APPELLEE’S RESPONSIVE BRIEF ON APPEAL – Page 24
