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Hernandez v. Moya

Court of Appeals of Texas, Third District, Austin

August 29, 2019

Elizabeth Hernandez, Appellant
v.
Leonardo Moya II, Appellee

          FROM THE 207TH DISTRICT COURT OF COMAL COUNTY NO. C2009-0090B, THE HONORABLE RANDAL C. GRAY, JUDGE PRESIDING

          Before Justices Goodwin, Baker, and Triana

          MEMORANDUM OPINION

          THOMAS J. BAKER, JUSTICE

         Elizabeth Hernandez appeals from the trial court's granting of discovery death-penalty sanctions striking her pleadings. She also challenges the trial court's denial of her motion for new trial after the granting of a default judgment. This appeal followed the trial court's default judgment in favor of Leonardo Moya II, the children's father, on his counter-petition to modify the parent-child relationship. For the following reasons, we reverse the trial court's order and remand this cause for a new trial.

         BACKGROUND

         The parties were divorced by a 2011 agreed Decree of Divorce in which Hernandez and Moya were appointed joint managing conservators with their children's residence to be within Comal or Bexar counties. The Court awarded the father an expanded standard possession order and rendered child support and medical support orders. In March 2016, the Office of the Attorney General filed a "Notice of Change of Status and Motion for Further Orders," with an Order Setting Hearing for May 20, 2016, and requested production from both parents. When the suit began, the parties' four children were ages 9, 12, 14, and 16. The Attorney General alleged that the mother had relinquished to the father primary care and possession of the middle two children for more than six months. The mother filed a general denial. The father filed a counter-petition alleging a relinquishment of the two middle children and preference of primary residence by two of the children over age 12. A Notice of Hearing accompanying the counter-petition set the case for August 26, 2016, for temporary orders. The father asked to be awarded the right to designate primary residence of the parties' three youngest children.

         Each party served discovery; the county court at law signed an Agreed Order on Motion for Referral to County Court at Law; the parties signed Rule 11 agreements June 21, 2016, regarding discovery served on Moya and on August 26, 2016, regarding detailed temporary orders; and the trial court signed temporary orders November 4, 2016, granting Moya the exclusive right to designate the primary residence of the two middle children and Hernandez the exclusive right to designate the primary residence of the youngest and eldest. On February 10, 2017, the trial court appointed a local therapist to perform a child custody evaluation. On April 5, 2017, a second expert was substituted to do the report after the first therapist asked to be removed.[1]

         In January 2017, Moya filed a motion to compel discovery and for sanctions, alleging that Hernandez had failed to respond to interrogatories, produce requested documents, and make requested disclosures. Moya's motion sought an order requiring Hernandez to produce the requested documents and responses by February 28 and pay $1, 200 in attorney's fees. The court granted the motion and made the requested orders. In March 2017, Hernandez's attorney provided some documents and discovery responses to Moya's attorney; some of the responses contained objections to the information requested.

         In September 2017, Moya filed a second motion to compel discovery and for sanctions, alleging that Hernandez had failed to pay the ordered attorney's fees or timely provide the requested documents and responses and had asserted untimely objections and failed to remove them. The motion requested that the court strike Hernandez's pleadings and grant judgment in favor of Moya. The trial court rendered an order October 20, 2017 on the motion requiring Hernandez to produce responsive discovery and pay $750 in attorney's fees by October 27.

         In January 2018, Moya filed a third motion to compel discovery and for sanctions. This motion alleged that Hernandez failed to provide the ordered discovery by October 27 and listed several outstanding discovery items (documents responsive to requests for production (RFPs) 3, 9, 11, and 13) and improper (i.e., "unremoved") objections to interrogatory (ROG) 14 and RFPs 9 and 13.[2] The motion additionally contended that Moya "does not believe" all documents responsive to RFP 2[3] had been provided. The motion contained a notice of hearing set for March 2, 2018 and again sought all "just and right" orders, including the striking of Hernandez's pleadings and judgment in favor of Moya.

         Hernandez's attorney, Tamer Morsi, filed a verified response to Moya's third motion to compel on February 28. In it, Morsi averred that (a) Hernandez "previously withdrew all asserted objections" to Moya's discovery requests and "provided complete responses" to the ROGs on October 30, 2017, citing an attached email he sent to Moya's attorney; (b) Hernandez "does not have access to or possession of documentation responsive to" RFPs 2, 3, 11, and 13 and "has no information available to provide a response" to ROG 14; and (c) Moya's attorney did not confer with him prior to filing the third motion to compel as required by the rules of civil procedure. Also February 28, Morsi filed a verified motion for continuance of the March 2 hearing on the third motion for sanctions, averring that he did not have child care available for his disabled son that date and he had attempted to reset the matter with Moya's attorney for March 7 but had not received a response.

         The trial court conducted a hearing on Moya's third motion to compel March 2. Neither Morsi nor Hernandez appeared. After hearing argument from Moya's counsel representing that Morsi had not properly and timely responded to Moya's various discovery requests, the trial court admitted into evidence several documents pertaining to Morsi's discovery correspondence. The trial court also agreed to "entertain" Moya's motion to strike Hernandez's pleadings and to hear the testimony of Moya. Moya testified about custody issues and the children's best interests but did not testify about discovery issues. After Moya's testimony, the court indicated that it had a "logistical question" because "[w]e are basically doing a modification hearing right now." The court inquired, "Are we going to make this an automatically appealable hearing because we are not setting the modification separately?" Moya's attorney replied, "Yes." The hearing transcript continues,

Court: So, what you are asking me to do, No. 1, I previously and officially denied the Motion for Continuance. That's why we could have the hearing. On the Motion to Quash, you are basically asking for me to quash any of the responses he made?
Moya's Counsel: I'm asking the Court to strike the pleadings of Ms. Hernandez and to grant judgment, which would essentially be a default judgment, which is ...

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