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Clark v. Clark

Court of Appeals of Texas, Eighth District, El Paso

March 29, 2017


         Appeal from 431st District Court of Denton County, Texas (TC # 2009-30720-211)

          Before McClure, C.J., Rodriguez, and Hughes, JJ.


          ANN CRAWFORD McCLURE, Chief Justice

         This is an appeal from the award of costs related to a discovery motion. We affirm the district court as to its decision to make the award, but we vacate the order based on two problems with its form.


         Lori Vae Clark and Richard Alan Clark were divorced on November 26, 2011. In addition to dividing the couple's assets, the final decree awarded Lori $131, 537.50 in attorney's fees. Some three years later, apparently after the fee judgment went unpaid, Lori's counsel served Richard's counsel with thirty-four requests for production ostensibly directed at discovering his assets. Richard's counsel, Kevin Perkins and Chelsea M. Masters of Vanacour Schuler Zarin PLLC timely responded to the discovery. Through counsel, Richard objected to fifteen of the thirty-four requests. He responded to the other nineteen requests that either there were no responsive documents, or that he would produce any responsive materials at a time and place agreed to by counsel.

         Shortly after the responses were served, the attorneys amicably worked out a confidentiality agreement. Then, on March 12, 2015, Lori's counsel emailed Masters stating: "it appears I may need to seek a ruling on your objections and to compel production of additional documents. Before doing so, I ask that you withdraw your objections and supplement your client's document production." The same day Masters responded: "could you please be more specific regarding to what you object and why you feel our objections are not valid?" All of the objections had raised overbreadth concerns. Lori's counsel replied, again by email, generally claiming that the subject matter of the requests were not overbroad and met the specificity requirements in the rules of civil procedure. He then identified five requests for which documents were promised, and stated either that no documents were produced, or that the production was incomplete. Masters promptly replied that: "[w]ithout more specificity from you, we believe our objections are valid." She then represented that as to the five specific requests, Richard produced all the responsive documents available. Five days later, Lori's counsel filed the motion to compel which is the subject of this appeal.

         The motion to compel raised two broad concerns. The first claimed that responsive documents were being withheld for Request for Production (RFP) 10 and 27. RFP 10 asked for: "[a]ll documents that refer to any and all financial-institution accounts on which Richard Clark has been an authorized user or that he has maintained since November 26, 2011. This includes but is not limited to bank statements, check stubs, and investment summaries." Richard had responded with this objection:

Respondent objects to the request because it is overly broad and is not in compliance with Tex.R.Civ.P. 196.1 (b), which requires the request to specify the items to be produced or inspected, either by individual item or category, and describe with reasonably particularity each item and category. See Tex.R.Civ.P. 193 comment 2. Subject to the objections and without waiving the same, Respondent will produce documents at a time and place agreed to by counsel.

         RFP 27 sought: "[a]ll documents that refer to any and all salaries, commissions, bonuses, income from employment, allowances, expenses, dividends, or any other amounts of money paid to Richard Clark." Richard responded without objection that he would produce those documents. The motion to compel challenged the objection to RFP 10, arguing that the "all documents" language did not render it overbroad under controlling case law. The motion also contended that Richard omitted obvious responsive materials. An affidavit from Lori's counsel attached to the motion claimed:

I also received documents from Respondent's counsel. Among the documents I received are a copy of a checkbook ledger and Respondent's tax returns for 2011, 2012, & 2013. I added the deposits in the ledger. They total approximately one-half of Respondent's gross income as stated in his tax returns. The ledger does not identify Respondent's bank name, account number, or account type."

         The motion to compel also focused on a number of the requests which sought discovery of assets held by "Business Entities" (a defined term in the discovery) in which Richard held an ownership interest. One such request, for instance, sought "[a]ll documents filed with the Internal Revenue Service for each Business Entity."[1] Richard responded to this request as follows:

Respondent objects to the request as overbroad in that it goes beyond the subject matter of this case and reasonable expectations of obtaining information that will aid in the resolution of any dispute related to the Final Decree of Divorce. See Tex.R.Civ.P. 192 comment 1. Specifically, the Final Decree of Divorce authorizes access to records relating to the former community estate, including Respondent's businesses, only insofar as such requests for access consist of financial records and are used to determine acquisition dates or used for tax purposes.

         This same objection was used for each of the several requests seeking information on "Business Entities" for which Richard held an ownership interest.

         After Lori filed the motion to compel, the trial court issued a letter to counsel placing the motion on a submission docket without oral argument. The letter informed counsel of the logistics of providing the court with the motion, the response, any reply, the discovery requests and the responses. The letter also informed counsel:

Please note that TRCP 215.1 permits the Court to award reasonable expenses and attorney fees to the prevailing party following the submission of this motion. The Court mav require the party and/or the attorney to pay these costs. Further, please note that TRCP 215.3 permits the Court to impose additional sanctions listed in TRCP 215.2(b) against a party found to be abusing the discovery process in seeking or resisting discovery or if the Court finds that any interrogatory, request, response or answer is unreasonably frivolous, oppressive, harassing, or made for the purpose of delay.

[Emphasis in original]. The purpose of this warning was to encourage the parties to "carefully review and reconsider their position" prior to the submission date. The letter also explained that once the court issued its decision on any remaining discovery disputes, a party wishing to pursue sanctions could then set a ...

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