Court of Appeals of Texas, Eighth District, El Paso
ANTHONY C. AGUILAR and SUSAN B. AGUILAR, Appellants
ENRIQUE TRUJILLO, ALSO KNOWN AS HENRY TRUJILLO, INDIVIDUALLY AND AS AGENT FOR CONCEPCION CASTANEDA TRUJILLO, DECEASED, and THE ELIZARIO P. TRUJILLO RESIDUARY TRUST, Appellees.
from County Court at Law No. 7 of El Paso County, Texas (TC#
Panel No. 2 Barajas, C.J., McClure, and Chew, JJ.
CRAWFORD MCCLURE, JUSTICE.
C. Aguilar and Susan B. Aguilar (the Aguilars) appeal from a
summary judgment granted in favor of Enrique Trujillo also
known as Henry Trujillo, Individually and as Agent for
Concepcion Castaneda Trujillo, Deceased, and the Elizario P.
Trujillo Residuary Trust (Trujillo or the Trujillo
defendants).  The trial court awarded attorney's
fees to Trujillo in the amount of $40, 000. The Aguilars
raise twenty-two issues on appeal pertaining to Trujillo.
Finding no error, we affirm.
Aguilars own property in El Paso County adjacent to the
Trujillo Farm, which is owned by the Estate of Concepcion
Castaneda Trujillo and the Elizario P. Trujillo Residuary
Trust. Morales and Enrique Trujillo (Trujillo) are the adult
children of Concepcion and Elizario Trujillo, both deceased.
Morales is the executrix of her mother's estate and
trustee of her father's residuary trust. In November
1996, Trujillo placed several truckloads of manure on the
family farms, including the Trujillo Farm. At that time,
Trujillo conducted farming operations on the Trujillo Farm
pursuant to a crop sharing agreement with his mother, who was
still living. Trujillo made the decisions regarding planting,
fertilization, and irrigation.
January 1997, the Aguilars filed suit against Enrique
Trujillo, Concepcion Trujillo, and the residuary trust,
alleging breach of an oral agreement to grant an easement for
the purpose of extending a water line to the Aguilar
property. Their suit also included a claim for damages caused
by the discharge of agricultural waste on the Trujillo Farm
in November 1996. The Aguilars alleged that contaminants
found in the agricultural waste will leach into the
groundwater and contaminate their well water when the
property is irrigated. The Aguilars subsequently amended
their petition to drop the breach of contract claim, and
added claims for nuisance and trespass based on their
assertion that their well had been contaminated by the
manure. Their suit also included a claim for tortious
interference with a contractual relationship. The Aguilars
later amended their petition to add as defendants Morales and
the dairy  which had supplied the manure to Trujillo.
10, 2001, Trujillo served a request for production and
inspection on the Aguilars in order to test their well water.
The Aguilars resisted the request and demanded to know the
identity of the person who would test the well.
Trujillo's attorney, Tom Wicker, initially refused to
reveal the identity of his consulting expert out of concern
that Mr. Aguilar would attempt to contact the witness. But
the trial court required that Trujillo identify his
consulting expert. On July 27, 2001, Wicker notified Mr.
Aguilar that James Maly of Frontera Environmental would
require access to the Aguilar property on the following day
for the purpose of taking water samples from the well. Maly
drew the samples and filled out a chain of custody form.
Wicker's legal assistant then delivered the samples to
Trace Analysis for testing. On August 6, 2001, Mr. Aguilar
contacted Maly without Wicker's consent and hired Maly as
an expert witness for the Aguilars. The Aguilars paid
Frontera Environmental a $5, 000.00 retainer. Maly accepted
employment with the Aguilars because, in his opinion, he had
not been retained by Trujillo as a consulting expert. Acting
on behalf of the Aguilars, Maly drew additional water samples
from the well and submitted them for testing. On September
28, 2001, the Aguilars designated Maly and Hector Villa, the
President and CEO of Frontera Environmental, as expert
witnesses. Villa and Maly produced a joint expert report
dated October 15, 2001. Trujillo filed a motion to strike the
Aguilars' experts on the ground that Mr. Aguilar had
improperly contacted a consulting expert in violation of Rule
4.02(b) of the Rules of Professional Conduct. Following a
hearing, the trial court granted the motion to strike Maly,
Villa, and all employees of Frontera Environmental.
Aguilars subsequently retained a geology expert, Dirk
Schulze-Makuch Ph.D. (Dr. Schulze-Makuch), and provided his
report to Trujillo and Morales. Dr. Schulze-Makuch's
report reflected that in forming his opinions, he relied on
the work product, opinions, and expert report provided by
Frontera Environmental and Maly. Consequently, Morales and
Trujillo filed a motion to strike Dr. Schulze-Makuch because
he had relied on the work product and opinions of witnesses
who had been excluded by the trial court. The trial court
granted the motion and excluded Dr.Schulze-Makuch.
Morales and Trujillo filed motions for traditional and
no-evidence summary judgment. On November 1, 2002, Trujillo
and Morales filed a joint motion for summary judgment
alleging that the Aguilars had no evidence that the manure
placed on the Trujillo Farm caused contamination of their
water well, and no evidence of recoverable damages.
Additionally, Trujillo and Morales asserted three affirmative
defenses in response to the tortious interference claim. The
trial court granted summary judgment in favor of Morales on
December 27, 2002 without specifying the precise grounds for
the ruling. The court also granted Morales' motion to
sever and assigned a new cause number, 2003-1501, to the
portion of the case pertaining to her. The claims against
Trujillo remained pending in the original cause number,
97-160. On March 12, 2003, the court granted a partial
summary judgment in favor of Trujillo with respect to the
Aguilars' "claims for alleged violations of the
Texas Water Code, tortuous [sic] interference, and res ipsa
loquitor." On June 30, 2003, Trujillo filed a third
motion for no- evidence summary judgment. The trial court
granted final summary judgment in favor of Trujillo on
September 10, 2003. The Aguilars timely filed notices of
appeal in both cause number 97-160 and cause number
related issues, the Aguilars challenge the exclusion of its
expert witnesses. Issues One through Eight pertain to the
striking of Maly, Villa, and any employee of Frontera
Environmental, and Issues Nine and Ten address the exclusion
of Dr. Schulze-Makuch. The Aguilars argue in several issues
that Maly was not a consulting expert, and therefore, Mr.
Aguilar was not prohibited from contacting him. Further, they
argue that the sanction should not be imposed against Mrs.
Aguilar since she is not an attorney and did not personally
contact Maly. Additionally, the Aguilars contend that a
violation of Disciplinary Rule 4.02(b) cannot serve as the
basis for the exclusion of these witnesses.
first determine whether the Aguilars are correct that we
review the court's orders de novo. Although
Trujillo did not specifically cite Rule 215 in his motion to
strike and for sanctions, his motion asserted that the
Aguilars violated the discovery rules by contacting Maly.
Additionally, Trujillo alleged that Mr. Aguilar's
unauthorized contact with Maly violated Disciplinary Rule
4.02(b). These allegations invoked the trial court's
discretion to impose sanctions pursuant to Rule 215. We
reject the argument that improper contact with a consulting
expert cannot result in sanctions.
trial court finds that a party is abusing the discovery
process in seeking, making, or resisting discovery, the court
may, after notice and hearing, impose any appropriate
sanction authorized by paragraphs (1), (2), (3), (4), (5) and
(8) of Rule 215.2(b). See Tex.R.Civ.P. 215.3. The
enumerated sanctions include prohibiting a party from
introducing designated matters in evidence. See
Tex.R.Civ.P. 215.2(b)(4). We review imposition of sanctions
under Rule 215 for an abuse of discretion. Koslow's
v. Mackie, 796 S.W.2d 700, 704 (Tex.1990); Bodnow
Corp. v. City of Hondo, 721 S.W.2d 839, 840 (Tex. 1986).
If the sanctions imposed are not just, a trial court abuses
its discretion. TransAmerican Natural Gas Corp. v.
Powell, 811 S.W.2d 913, 917 (Tex. 1991).
TransAmerican, the Supreme Court set out a two-part
test for determining whether a particular sanction is just.
Spohn Hospital v. Mayer, 104 S.W.3d 878, 882 (Tex.
2003); TransAmerican, 811 S.W.2d at 917. First,
there must be a direct nexus between the offensive conduct,
the offender, and the sanction imposed. Spohn, 104
S.W.3d at 882; TransAmerican, 811 S.W.2d at 917. A
just sanction must be directed against the abuse and toward
remedying the prejudice caused to the innocent party, and the
sanction should be visited upon the offender. Spohn,
104 S.W.3d at 882; TransAmerican, 811 S.W.2d at 917.
The trial court must attempt to determine whether the
offensive conduct is attributable to counsel only, to the
party only, or to both. Spohn, 104 S.W.3d at 882;
TransAmerican, 811 S.W.2d at 917.
just sanctions must not be excessive. Spohn, 104
S.W.3d at 882; TransAmerican, 811 S.W.2d at 917. In
other words, a sanction imposed for discovery abuse should be
no more severe than necessary to satisfy its legitimate
purposes, which include securing compliance with discovery
rules, deterring other litigants from similar misconduct, and
punishing violators. Spohn, 104 S.W.3d at 882;
TransAmerican, 811 S.W.2d at 917.
Between Offensive Conduct and the Sanction Imposed
the Aguilars' arguments relate to the first part of the
TransAmerican test. They argue that (1) Maly was not
a consulting expert; (2) violation of Disciplinary Rule
4.02(b) cannot result in the sanction imposed by the trial
court; and (3) a sanction should not be imposed against Mrs.
Aguilar because she did not contact Maly. We will address
these arguments in the order presented.
consulting expert is defined as an expert who has been
consulted, retained, or specially employed by a party in
anticipation of litigation or in preparation for trial, but
who is not a testifying expert. Tex.R.Civ.P. 192.7(d). The
Aguilars contend that Maly is not a consulting expert because
he did not enter into a written contract with Trujillo's
attorneys and he was not paid an appropriate retainer for a
consulting expert. They do not address whether he was
consulted or specially employed in anticipation of litigation
or in preparation for trial.
Wicker's instruction, his legal assistant, Louise
Elorreaga, contacted Maly and spoke with him about the
pending litigation brought by the Aguilars against Trujillo.
Maly agreed to take water samples on behalf of Trujillo. Maly
admitted that Elorreaga informed him that there was a dispute
between the parties regarding alleged contamination of the
Aguilars' well and he was hired for his expertise and
knowledge of water wells. He also conceded that the water
samples taken by him are an important part of the lawsuit.
Wicker plainly considered Maly a consulting expert, and based
upon Rule 192.3(e), Wicker resisted the Aguilars'
requests that he reveal the identity of the person who would
be taking the water samples and submitting them for testing.
Wicker informed the trial court that he did not want to
reveal the identity of his consulting expert who would be
conducting the water sampling because he feared Mr. Aguilar
would contact him without prior consent, but the trial court
required him to do so. Maly, accompanied by Elorreaga,
subsequently took the water samples from the Aguilars'
well and Frontera Environmental billed Wicker's law firm
for the services performed by Maly.
lack of a written contract or payment of a consulting expert
retainer is not dispositive of the issue before us. The
evidence, while conflicting, supports a conclusion by the
trial court that Wicker, acting through his legal assistant,
consulted with Maly on behalf of Trujillo and specially