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In re K.D.

Court of Appeals of Texas, Second District, Fort Worth

January 9, 2020

In re K.D., Relator

          Original Proceeding Trial Court No. 18-8906-431

          Before Birdwell, Bassel, and Womack, JJ.

          MEMORANDUM OPINION

          WADE BIRDWELL JUSTICE.

         Relator, K.D., filed this original proceeding seeking release from confinement after the trial court found him to be in contempt and ordered him incarcerated for failing to timely respond to discovery and for failing to pay attorney's fees the trial court had imposed as discovery sanctions. After reviewing relator's petition for writ of habeas corpus, we ordered him released on his own recognizance and requested a response from the real party in interest. See Tex. R. App. P. 52.8(b)(3), 52.10(b). We did not receive one. We grant relief.

         Background

         The underlying suit is for a divorce. In August 2019, real party in interest filed a motion to compel discovery, alleging that relator had failed to respond to a request for disclosure, interrogatories, and a request for production of documents that real party in interest had served on March 29, 2019.

         The trial judge sent the parties a letter in which he stated that the motion would be submitted "at the Court's earliest convenience following the submission date referenced above," which was September 13, 2019. The trial court also ordered that a written response to the motion should be "filed and served on the Movant no later than seven (7) days prior to the submission date referenced above." The letter warned the parties that if the trial court granted the motion it was required to award reasonable expenses and attorney's fees under Texas Rule of Civil Procedure 215.1(d) and that the trial judge could impose additional sanctions "against a party found to be abusing the discovery process." Tex.R.Civ.P. 215.1(d). The letter further gave "notice of the Court's intent to award expenses and to impose sanctions for abuse of the discovery process" and concluded,

In the event that either party wishes to proceed in that manner following receipt of the Court's ruling, the Court will set a hearing for the purpose of receiving evidence and argument regarding the amount of expenses and attorney fees, the nature of other sanctions requested, and whether such expenses or sanctions should be imposed against the party, the attorney, or both of them.

         Relator filed a response on September 13, 2019, which acknowledges that final trial was scheduled for October 15, 2019. In the response, relator's counsel stated that relator had served responses to the requests for production and disclosure[1] after the motion to compel had been filed. After a hearing on September 23, 2019, the trial court granted the motion to compel and signed an order requiring relator to "completely and fully respond" to the request for disclosure, interrogatories, and request for production, on or before September 30, 2019. The trial court ordered relator to pay real party in interest's attorney's fees and expenses "in an amount to be determined." The trial court noted in the order that relator's counsel had failed to timely respond to the motion to compel.

         On October 15, 2019, the trial court signed an Order of Dismissal and Order to Appear and Show Cause for Contempt, which references its September 23, 2019 order on the motion to compel. The order notes that relator failed to appear for final trial without good cause. In the order, the trial court dismissed relator's claims for affirmative relief. The trial judge also found that real party in interest "was not ready or able to proceed to trial" because relator had not properly responded to discovery and that relator had "failed and refused to comply with the court's lawful order."

         The trial judge thus ordered relator to

1. Serve Respondent's [real party in interest's] counsel with Petitioner's [relator's] answers to Respondent's interrogatories--without objection-- by 5:00 p.m. on October 29, 2019;
2. Serve Respondent's counsel with Petitioner's response to Respondent's request for production of documents--without objection--by 5:00 p.m. on October 29, 2019;
3. Serve Respondent's counsel with Petitioner's response to disclosures-- without objection--by 5:00 p.m. ...

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