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Munoz v. Kuethe

Court of Appeals of Texas, Eleventh District

January 9, 2020

JESUS MUNOZ AND RANDY MUNOZ, Appellants
v.
KENNETH WILLIAM KUETHE, JR., Appellee

          On Appeal from the County Court at Law Ector County, Texas Trial Court Cause No. CC-26450

          Panel consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J. [1]

          MEMORANDUM OPINION

          JIM R. WRIGHT SENIOR CHIEF JUSTICE

         Jesus Munoz and Randy Munoz appeal from an order in which the trial court assessed death-penalty sanctions against them as a result of their violating a pretrial order. The trial court struck Appellants' pleadings and exhibits; dismissed their lawsuit against Appellee, Kenneth William Kuethe, Jr.; and rendered default judgment for Appellee. Appellants subsequently filed a motion for new trial, and the trial court denied it. We reverse and remand.

         On appeal, Appellants contend that the trial court abused its discretion when it struck their pleadings and exhibits, rendered default judgment for Appellee, and subsequently denied their motion for new trial.

         The underlying negligence action arose out of a motor vehicle accident. Appellants filed suit and alleged that Appellee failed to yield the right-of-way at an intersection and that Appellants were injured in the resulting collision. Jesus Munoz filed his original petition in Ector County on May 4, 2015, and Randy Munoz joined in the first amended petition, which was filed on November 23, 2015.

         In November 2016, the trial court first set the case for trial on January 10, 2017. However, due to a special setting in another case, Appellee's counsel sought to continue that setting to April or May 2017. Appellants did not oppose Appellee's motion, and the trial court postponed the trial until May 2017.

         On December 28, 2016, the trial court entered its "Scheduling Order/Level III Discovery Control Plan" and set a new trial date for May 2, 2017, and a pretrial exchange deadline of Friday, April 14, 2017. Pursuant to the trial court's order, counsel for each party was to provide opposing counsel with requested jury charges, motions in limine, exhibit lists, copies of all marked exhibits to be offered at trial, deposition excerpts, and all other pretrial matters. Appellee's counsel met the pretrial exchange deadline, but Appellants' counsel did not.

         On Monday, April 17, 2017, the trial court held a pretrial hearing. Immediately prior to the hearing, local counsel for Appellants provided various pretrial exchange documents to Appellee's counsel. Under the trial court's order, the documents were late; Appellants' counsel should have filed pretrial documents the Friday before the hearing. Moreover, the late-filed documents were incomplete. For instance, Appellants' exhibit list was among those documents furnished, but marked and tagged copies of Appellants' exhibits were not. The trial court reset the hearing because Appellants' lead attorney did not appear for the hearing and Appellants' local counsel was unprepared to proceed with the hearing. The trial court reset the hearing for April 26, 2017, and instructed Appellants' local counsel that the attorney who had the authority to argue pretrial matters needed to be present at the rescheduled hearing. No mention was made at the hearing that Appellants' counsel had not produced copies of Appellants' proposed exhibits as previously ordered by the trial court.

         On April 25, 2017, one day prior to the rescheduled pretrial hearing, Appellants' lead attorney filed a motion for continuance of the May 2 setting. In the motion, lead counsel stated that counsel was scheduled to appear for trial in another case that had been specially set to begin on May 1, 2017, in Dallas. Appellants' lead counsel also said in the motion that counsel had to attend a hearing in that cause on April 26, 2017, the same day as the rescheduled pretrial hearing in this case.

         On April 26, 2017, the trial court held a hearing on Appellants' motion for continuance. At the hearing, Appellee's counsel strongly objected to a continuance. Appellee's counsel further urged that any continuance be limited solely to the trial date, that the scheduling order deadlines remain intact, and that the trial court disallow the addition of "any new exhibits" or filings. The trial court granted the continuance "on the trial only" and stated that "discovery, according to the order, ha[d] now closed." The trial court emphasized that it would not permit any attempts to submit additional items that had not been furnished in accordance with the scheduling order deadlines.

         The trial court reset the case for trial on November 14, 2017, and the pretrial hearing for November 9, 2017. Counsel for Appellee and local counsel for Appellants appeared at the November 9 hearing. Once again, lead counsel for Appellants did not show up for the hearing.

         At the outset of the November 9 pretrial hearing, Appellee's counsel referred to the continuance that the trial court granted for Appellants in April. Appellee's counsel stated that he believed that lead counsel for Appellants had lied and made misrepresentations to the court in connection with the motion for continuance. Appellee's counsel then informed the trial court that Appellants' counsel had yet to fully comply with the pretrial order and produce copies of Appellants' exhibits. Appellee had not filed a motion for sanctions but requested that the trial court strike Appellants' exhibits and pleadings and render default judgment for Appellee. The trial court granted the request.

         On November 24, 2017, the trial court held a hearing on Appellants' motion for reconsideration and for new trial. This time, both lead and local counsel for Appellants attended the hearing. Appellants' lead counsel explained that he had filed a motion for continuance in the Dallas case, the setting for which was the basis for the April motion for continuance filed in the present case, not anticipating that the Dallas continuance would be granted. The Dallas court initially denied the continuance, and by the time it was eventually granted, the trial court in the present case had already granted Appellants' continuance. Appellants' counsel urged the trial court to reconsider its ...


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