Appeal from the County Court at Law Ector County, Texas Trial
Court Cause No. CC-26450
consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J.
WRIGHT SENIOR CHIEF JUSTICE
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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