In a case involving serious personal injuries caused by plaintiff’s contact with a high voltage power line, the Corpus Christi Court of Appeals has for the second time granted the power company’s petition for writ of mandamus directing a Hidalgo County trial court to set aside a death penalty sanctions order.
In re Southwestern Public Service Company, XCEL Energy, Inc. and XCEL Energy Services, Inc. (No. 13-22-00389-CV; filed October 16, 2023) arose from injuries suffered by a worker hired by a peanut company to pick up peanuts and deliver them to a processing plant. While on top of a trailer attempting to manually roll a tarp over his load, the worker was injured when the metal crank arm that rolled the tarp either came in contact with or into close proximity to the power line, creating an electrical arc that injured him. The worker filed suit against the peanut company, the owners of the peanut farm, and the power company. Plaintiffs settled with the peanut farmer and the peanut company. Nearly a year after the court of appeals ordered the trial court to set aside its initial death penalty sanctions order, plaintiffs moved once again for death penalty sanctions in April 2021. The power company responded that the sanctions were improper under the court of appeals’ opinion and requested the trial court to allow the case to proceed to trial. After dithering about and holding some status conferences to discuss the issue, the trial court set the motion for hearing in July 2021. The power company to an agreed continuance. Prior to the rescheduled hearing, plaintiffs filed emergency motion to continue the rescheduled hearing, in which they notified the court that the power company had served supplemental discovery responses and amended disclosures and that they needed time to review everything. In October plaintiffs renewed their motion for sanctions, asserting that the power company had “continue[d] their pattern of egregious discovery abuse” by presenting new expert opinions three years past the designation deadline, 4000 new pages of discovery, and new theories of liability. Things dragged on until June 2022, when the trial court signed the second death penalty sanctions order.
Most of the second order, the court of appeals observed, rehashed the events in the first order. These concerned alleged failures of the power company to preserve certain data, Sequence of Events log, relay data; false and misleading testimony and discovery responses provided by the company’s witnesses; and other misdeeds involving witnesses. The trial court concluded that “relators ‘deliberately and willfully’ waited until days before the scheduled August 2021 supplemental evidentiary hearing to ‘dump upon the [real parties] thousands of pages of new materials that, in some cases, [they] had for years prior to the supplemental evidentiary sanctions hearing,’” in what amounted to an “attempt to ambush” plaintiffs with a new factual theory. The trial court made further findings about the credibility of the company’s alternative theory and the model it used to demonstrate the scientific impossibility of plaintiff’s theory. It therefore ordered the company’s pleading stricken and granted default judgment to plaintiffs on liability. The order further stripped the company of presenting evidence to the jury of proportionate responsibility.
At the court of appeals the power company argued that the trial court’s order reflected the same errors as before “because it still: (a) precludes the application of proportionate responsibility; (b) rests on the same evidentiary record that we held was insufficient; and (c) fails to demonstrate that no lesser sanctions would suffice.” In its first ruling, the court of appeals applied SCOTX precedent governing the severity sanctions and found that the trial court did not follow the law, “sanctioned relators for cumulative abuse of the judicial process” even though “a significant part of the alleged sanctionable conduct [could not] be attributed solely to relators,” lesser sanctions may “have sufficed to promote relators’ compliance with the rules,” and failed to consider relevant evidence.
In an opinion by Justice Benavides, joined by Justices Silva and Pena, the court found that the conditions leading to the court’s opinion to mandamus the trial court in the first place had not materially changed. The case had not been further litigated, the trial court did not issue lesser sanctions, and the parties merely relitigated the same issues. The trial court further, the court of appeals observed, appeared to have placed the burden on the power company to prove “that they should not be sanctioned with a death penalty, again, rather than placing the burden on the real parties to establish their right to sanctions” (citations omitted). As to plaintiff’s argument about “evidence dumping,” the court noted that the record contains no trial court order closing discovery or setting a trial date. By contrast, the trial court convened an evidentiary hearing on sanctions in which it asked the company what evidence it intended to adduce on its “scientific impossibility” theory, thus “for all practical intents and purposes . . . invit[ing] the relators to supplement their discovery responses.” Quoting a Houston [14th] Court of Appeals opinion, “[r]e-hanging an already-hung litigant does not fix procedural flaws preceding the first trip to the gallows and does not comply with [SCOTX precedent].”
Even if the company’s supplemental discovery was untimely, the court went on, the trial court still abused its discretion because it did not find that the discovery caused unfair surprise or prejudice to plaintiffs under Texas Rule of Civil Procedure 193.6. Three years prior, in fact, the trial court had excluded such evidence. Even worse, the portion of the trial court’s sanction declaring the company jointly and severally liable and barring issues of proportionate liability “is more severe than a death penalty” and directly contravenes § 33.003, CPRC, which mandates the trier of fact to determine the percentage of responsibility of settling parties.
It’s a little hard to tell what precisely is going on in this case, but looking at the company’s appellate team gives us pretty high confidence that the relators are doing the best they can under difficult local circumstances. We don’t recall ever seeing a court of appeals compelled to mandamus a trial court twice for the same thing. We also don’t recall ever seeing a sanctions order nullifying Chapter 33 and simply declaring a defendant jointly and severally liable. Whatever may be going on in this case, that can’t be right. In any event, we applaud the court of appeals from staying on top of things and holding the trial court’s feet to the fire.
