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Aguilar v. Morales

Court of Appeals of Texas, Eighth District, El Paso

April 21, 2005


          Appeal from County Court at Law No. 7 of El Paso County, Texas (TC# 2003-1501)

          Before Panel No. 2 Barajas, C.J., McClure, and Chew, JJ.



         Anthony C. Aguilar and Susan B. Aguilar (the Aguilars) appeal from a summary judgment granted in favor of Maria L. Morales as Executrix of the Estate of Concepcion Castaneda Trujillo and as Trustee of the Elizario P. Trujillo Residuary Trust (Morales or the Morales defendants). [1] The Aguilars raise sixteen issues on appeal pertaining to Morales. [2] Finding no error, we affirm.


         The 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.

         In January 1997, the Aguilars filed suit against Enrique Trujillo, Concepcion Trujillo, and the residuary trust, [3] 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 [4] which had supplied the manure to Trujillo.

         On May 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 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.

         The 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.

         Both 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. 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 2003-1501.


         In ten 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.

         Standard of Review

         We must 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.

         If the 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).

         In 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.

         Second, 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 ...

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