So apparently that was not understood as being a requirement that those questions be answered in the deposition. I don’t know if it goes far enough for a dismissal, but as we know, that is the last resort. And I am not going to take that last resort. But I need to enter an order that makes it clear that questions along the lines of those I’ve just referred to need to be answered without the assertion of the privilege. And there needs to be expense borne by plaintiffs in this case for re-deposition. Following the hearing, the trial court entered a sanctions order against the Galindos and their counsel. The trial court did not name any individual attorneys in the order. The trial court ordered that the Galindos’ claims of attorney-client, tax preparer, and accountant privileges were waived under the offensive-use doctrine established in Ginsberg, 686 S.W.2d 105, and that the Galindos could not assert the privileges as to any communications they had with their advisors from 1995 through February 23, 2005, that related to Galindo’s lottery winnings or any transactions at issue in the suit. The trial court’s order required the Galindos and their counsel to pay $10, 600 to Appellees’ counsel within four days of the order- for attorneys’ fees incurred relating to the hearing on the motion to compel. The order also required the Galindos to make Galindo, Peralta, Jaime, and Quinones available for re-deposition as soon as practical and required the Galindos and/or their counsel to pay Appellees’ counsel $12, 204.90 for fees and costs associated with each of the four depositions that Appellees had to retake. The $12, 204.90 was to be paid to Appellees’ counsel one week prior to each deposition.
Whitmire, on behalf of the Galindos, filed a motion for emergency stay and motion for reconsideration in which he argued that the sanctions were cost-prohibitive and threatened the Galindos’ ability to continue with the litigation. The Galindos, Bohorquez, and Whitmire attached affidavits to the motion in which they stated that they could not pay the sanctions. Whitmire, on behalf of the Galindos and Bohorquez, sought mandamus relief in the Third Court of Appeals. The Third Court granted an emergency motion for temporary relief, but subsequently denied the petition for writ of mandamus.
After the mandamus relief was denied, Appellees noticed the depositions of Galindo, Peralta, Quinones, and Jaime. Whitmire, on behalf of the Galindos, filed a motion to quash and argued that the notices violated the emergency stay. The trial court denied the motion to quash. Appellees again noticed the depositions of Quinones and Jaime, and Whitmire again filed a motion to quash and urged the court to reconsider the sanctions order because of Appellants’ inability to pay the sanctions. The trial court denied the motion. Appellees made a final attempt to notice the depositions and requested prompt payment of the sanctions as ordered. Whitmire responded that the Galindos and their counsel could not pay the sanctions. Appellees canceled the depositions and filed a motion to dismiss based on Appellants’ failure to pay the sanctions.
The trial court entered an order in which it granted the motion to dismiss. The trial court ordered, among other things, that the Galindos’ claims against Appellees be dismissed with prejudice. The Galindos, Bohorquez, and Whitmire each filed a notice of appeal in the Third Court of Appeals. The appeal was transferred from the Third Court to this court, pursuant to a docket equalization order from the Texas Supreme Court.
Issues on Appeal
Generally, Appellants argue that the trial court erred when it entered the initial sanctions order because the sanctions imposed were unjust. Appellants also argue that the trial court erred when it dismissed the Galindos’ case for failure to pay discovery sanctions because the sanctions were unjust and precluded the Galindos from pursuing their lawsuit. The Galindos and Whitmire each present two issues for review, and Bohorquez presents four issues.
The Galindos identify their issues presented as (1) the trial court abused its discretion when it dismissed the case and (2) the trial court abused its discretion when it ordered them to pay “front” sanctions that resulted in their inability to obtain redress in the court. The format of their brief does not comport with their issues presented. In their brief, they present three main issues: (1) the sanctions were case-determinative, and no lesser sanction was imposed before their case was dismissed; (2) the sanctions were unjust because they did not relate to offensive conduct; and (3) the sanctions order did not meet the Texas requirements for a case-determinative sanctions order.[1] We will refer to these three issues in disposing of their appeal.
Whitmire argues in his first issue that the sanctions order should not be enforced against him because he was not notified of the hearing and because the order is vague in that it does not order a specific attorney to pay the sanctions. Bohorquez also argues in her first issue that the order is vague and that, because Appellees did not request sanctions against her specifically, she did not receive due process notice. Whitmire asserts in his second issue that the sanctions were unduly harsh penalties that were not proportionately tailored to address the complained-of conduct and that the sanctions improperly eliminated the Galindos’ right to pursue their litigation.
In Bohorquez’s second issue, she contends that the trial court abused its discretion when it imposed sanctions because there was no evidence that counsel improperly asserted privileges on behalf of the Galindos. She argues in her third issue that the trial court also abused its discretion when it imposed the sanctions because the sanctions were excessive and unjust, arbitrary and unreasonable, and outcome-determinative. In her final issue, she alleges that the trial court abused its discretion when it dismissed the case because it failed to consider less stringent sanctions.
Discovery Sanctions That Have a Preclusive Effect
The trial court may impose sanctions on a party who fails to obey a discovery order or who abuses the discovery process. See Tex. R. Civ. P. 215.2, 215.3. We review a sanctions order for an abuse of discretion. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004). The trial court abuses its discretion if it acts arbitrarily and unreasonably without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). The sanctions imposed must be just. TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991). In determining whether a sanction is just, we first look to whether a direct relationship exists between the offensive conduct and the sanction imposed. Id. We next look to whether the sanction is excessive. Id. The sanction should be no more severe than necessary to satisfy its legitimate purposes. Id.
Sanctions that are ordered to be paid prior to the entry of a final appealable order can have a preclusive effect on the party’s ability to proceed with its case. Braden v. Downey, 811 S.W.2d 922, 929 (Tex. 1991) (orig. proceeding) (citing Thomas v. Capital Sec. Servs., Inc., 836 F.2d 866, 882 (5th Cir. 1988)).
[I]f a litigant contends that a monetary sanction award precludes access to the court, the district judge must either (1) provide that the sanction is payable only at a date that coincides with or follows entry of a final order terminating the litigation; or (2) make[] express written findings, after a prompt hearing, as to why the award does not have such a preclusive effect.
Id. (quoting Thomas, 836 F.2d at 882–83 n.23).
The trial court ordered “Plaintiffs and Plaintiffs’ counsel” to pay $10, 600 to Appellees’ counsel for the costs and fees incurred in pursuing the motion to compel and ordered “Plaintiffs and/or Plaintiffs’ counsel” to pay $12, 204.90 for costs and fees associated with each of the four depositions that Appellees had to retake. The $10, 600 was to be paid within four days of the order, and the $12, 204.90 was to be paid one week prior to each deposition. The Galindos filed a motion for emergency stay and motion for reconsideration of the sanctions order and argued that the sanctions were cost-prohibitive and threatened their ability to pursue their lawsuit. The Galindos asserted this same argument through motions to quash depositions and their response to Appellees’ motion to dismiss for failure to pay the sanctions.
Under Braden, once the Galindos contended that the sanctions were cost-prohibitive and precluded their ability to continue with the litigation, the trial court was required to modify the sanctions order to provide that the sanctions were to be paid when a final judgment was entered or to make express findings, after a hearing, as to why the sanctions did not have a preclusive effect. Id. The trial court did not modify the sanctions order, and although the trial court did enter a finding in the dismissal order that the Galindos failed to present any admissible evidence of their inability to pay the sanctions imposed, the court did not make express written findings as to why the award did not have a preclusive effect. Thus, the trial court abused its discretion when it did not comply with the requirements set out in Braden.
The purpose behind the requirements in Braden is to ensure that an appeal affords a party with an adequate remedy. Id. at 929–30. When severe monetary sanctions are deferred until an appealable judgment is rendered, a party, in order to proceed with its lawsuit, is not forced to pay severe monetary sanctions without first having the opportunity to appeal the sanctions order. Id. Although we are now in a position to review the sanctions order to determine if it is just, the Galindos’ case was dismissed for their failure to pay the sanctions before Appellants had an opportunity to seek review of the order. The trial court dismissed the Galindos’ case as a “death penalty” sanction because it found that the Galindos had refused to comply with the monetary sanctions that the court had ordered the Galindos and their counsel to pay. In light of our decision that the trial court failed to comply with the requirements of Braden, we also hold that the trial court abused its discretion when it dismissed the Galindos’ case for their failure to pay the very sanctions that they contended would preclude them from pursuing their lawsuit. We sustain the Galindos’ third issue. We also sustain Whitmire’s second issue and Bohorquez’s third issue to the extent they argue that the trial court failed to comply with the requirements of Braden.
Direct Relationship with Offensive Conduct
We now turn to the merits of the initial sanctions order. The Galindos argue that the trial court erred when it ordered them to pay sanctions because they were not the “offenders.” When we look to whether imposed sanctions are just, we must first look to whether the sanctions have a direct relationship to the offensive conduct. TransAmerican Natural Gas Corp., 811 S.W.2d at 917. This means that the sanction must be directed against the abuse and visited upon the offender. Id. The trial court should determine whether the conduct is attributable to counsel only, to the party only, or to both counsel and the party. Id. A party should not be punished for counsel’s conduct unless the party is implicated apart from having entrusted its legal representation to counsel. Id.
The record does not support an order for sanctions against the Galindos. It does not appear from the record that the Galindos were present at the depositions in which Bohorquez and Whitmire asserted the privileges, nor does it appear from the record that the Galindos were so involved in the litigation that we can impute the actions of the attorneys to them. The trial court noted at the dismissal hearing that, after six years of litigation and numerous hearings, it had never seen the Galindos. In addition, the record shows that Galindo did not understand English and required an interpreter during his deposition. Furthermore, although Galindo refused to give consent for Peralta and Garcia to disclose to Appellees advice that each had given him, he did so on the advice of his counsel. Moreover, Galindo answered all but one of Appellees’ questions despite Bohorquez’s objections as to attorney-client privilege throughout his deposition. Although the Galindos did hire and release multiple attorneys throughout the case, the record does not show that they were involved with the decision to assert the privileges or that they understood the legal intricacies of whether they had waived privilege under the offensive use doctrine. Therefore, the trial court erred when it ordered sanctions against the Galindos for offensive conduct, if any, committed by their counsel. See, e.g., Glass v. Glass, 826 S.W.2d 683, 687–88 (Tex. App.-Texarkana 1992, writ denied) (holding trial court erred when it sanctioned client where the evidence showed that the attorney filed frivolous pleadings on behalf of the client, but the client did nothing more than rely on her attorney’s advice).
Appellants also contend that the order is vague in that it did not order sanctions against individual attorneys. The trial court ordered “the Plaintiffs and/or Plaintiffs’ counsel” to pay the fees associated with the depositions and ordered “the Plaintiffs and Plaintiffs’ counsel” to pay the fees associated with the motion. Appellants argue that, because the Galindos were represented by a number of different attorneys throughout their lawsuit, the order is vague and does not specify which of the attorneys are liable, nor does it specify whether the responsible attorneys are jointly and severally liable for all of the sanctions.
The record shows that at least six different attorneys represented the Galindos throughout their litigation. By the time the trial court dismissed the case, all of the attorneys had withdrawn from the case or had been discharged by the Galindos. When the conduct at issue in the motion to compel occurred, only one of those attorneys had withdrawn from the case. However, it appears from the record that only Bohorquez and Whitmire asserted the privileges at issue in the motion to compel. Because the order is vague as to which attorney or attorneys must pay sanctions to Appellees, the sanctions do not directly relate to the offenders, if any. The trial court erred when it did not specify which attorneys were liable for the sanctions imposed.
For the reasons discussed above, we reverse the initial sanctions order as to the Galindos, Whitmire, and Bohorquez. We sustain the Galindos’ second issue, Whitmire’s first and second issues, and Bohorquez’s third issue to the extent Appellants argue that the sanctions were unjust because they did not have a direct relationship with the offensive conduct, if any.
Due Process
In each of their first issues, Whitmire and Bohorquez contend that their due process rights were violated because Appellees did not specifically seek sanctions against them in their motion to compel. Whitmire also alleges that he did not receive service of the motion or notice of the hearing and did not know that sanctions were possibly being imposed against him until he received a copy of the order. Because we have reversed the sanctions order, it is not necessary for us to address whether due process was violated. See Tex. R. App. P. 47.1.
Summary
We have held that the trial court erred when it failed to comply with the requirements of Braden and, as a result, erred when it dismissed the Galindos’ case. We have also held that the trial court erred when it entered the initial sanctions order. Based on our holdings, it is not necessary for us to reach the Galindos’ first issue or Bohorquez’s second and fourth issues. See Tex. R. App. P. 47.1.
This Court’s Ruling
We reverse the trial court’s order imposing sanctions and its order of dismissal, and we render judgment that Appellees take nothing on their sanctions claims as to the Galindos. We remand this cause to the trial court for further proceedings consistent with this opinion.
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