TO THE HONORABLE JUDGE OF SAID COURT:
Harry A. Harrison and Dottie Harrison, defendants pro se in the above numbered and styled cause, file this Motion for Sanctions requesting that this Court impose sanctions against plaintiffs Dr. Mark Nichols and Mark Lynn Nichols, M.D., P.A., and against their attorneys, Robert J. Killeen, Jr., and Killeen & Wheat, P.L.C. pursuant to Texas Rules of Civil Procedure Rules 13 and 215, and chapter 10 of the Civil Practice and Remedies Code.
I.
SUMMARY
1. Plaintiffs and plaintiffs’ attorneys are in constructive contempt of court because they have failed or refused to comply with a valid court order; namely, the order signed by this Court on January 6, 2003 ordering plaintiffs to produce specified discovery within 10 days of said date.
2. Said refusal to provide discovery ordered by this Court is just one more example of many regarding the lack of courtesy and cooperation and the history of dilatoriness by plaintiffs and plaintiffs’ attorneys from the onset of this cause, causing the necessity for defendants to burden this Court with motions that would be unnecessary if plaintiffs would (a) not indulge in abusive conduct and (b) would comply with the Texas Rules of Civil Procedure..
3. Defendants Harry and Dottie Harrison have always behaved in a courteous, cooperative manner in this cause and have complied, to the best of their knowledge and ability, with the Texas Rules of Civil Procedure. Plaintiffs and plaintiffs’ attorneys’ repeated refusal to comply with the Texas Rules of Civil Procedure is further indication of the attitude of vindictiveness that prompted plaintiffs and plaintiffs’ counsel to file this groundless lawsuit for the purpose of harassment.
II.
BACKGROUND
4. Defendants Harry and Dottie Harrison allege that this suit was brought by plaintiffs for the purpose of harassment and punishment for defendants telling the truth in hopes other people might avoid the kind of harm that plaintiff Dr. Mark Nichols caused to defendants.
5. Defendants Harry and Dottie Harrison can and will prove to a jury that they have said or written nothing but the truth about plaintiff Dr. Mark Nichols, and that they have said or written nothing at all about plaintiff Mark Lynn Nichols, M.D., P.A.
III.
PERTINENT FACTS
6. The following paragraphs 7 through 17 offer examples regarding the lack of courtesy and cooperation and the history of dilatoriness by plaintiffs and plaintiffs’ attorneys
7 Defendants were served in this cause on July 31, 2002. Defendants initially retained John C. Knobelsdorf II as their attorney. During the week of August 19, 2002, Mr. Knobelsdorf called plaintiffs’ attorney Robert J. Killeen, Jr., and Mr. Knobelsdorf asked for a discussion with the goal of an early quick resolution of the case. Mr. Killeen never called Mr. Knobelsdorf back. (See Mr. Knobelsdorf’s memorandum of this fact, attached as Exhibit H.)
8. When defendants decided to handle their defense pro se, John Knobelsdorf wrote Mr. Killeen, advised he was withdrawing from the case, and asked Mr. Killeen for a 30-day extension of time for defendants to respond to the discovery requests. (See attached Exhibit A.) Mr. Killeen never responded to Mr. Knobelsdorf.
9. On November 3, 2002, defendant Dottie Harrison faxed Mr. Killeen, counsel for plaintiffs, a courteous letter suggesting the possibility of mediation or arbitration. Ms. Harrison asked Mr. Killeen to ask his client to consider the idea and let her know the answer. (See attached Exhibit B.) Mr. Killeen never responded to defendant Dottie Harrison’s communication.
10. On December 16, 2002, defendants filed their First Amended Answer and Original Affirmative Defenses with the court, and faxed said pleading to plaintiffs’ attorney, Robert J. Killeen, Jr. Within one hour of defendants faxing said document to Mr. Killeen, Mr. Killeen faxed notice to defendants Harry and Dottie Harrison that he had scheduled their depositions for December 24, 2002. This fax from Mr. Killeen, in which he scheduled depositions without the courtesy of conferring with defendants, in which he scheduled depositions with eight days’ notice to take place on a holiday, was the first communication defendants had ever received from plaintiffs’ attorneys.
11. On December 18, 2002, defendant Dottie Harrison faxed Mr. Killeen and asked that he call defendants to reschedule the depositions. (See Exhibit C.) Mr. Killeen never responded to Dottie Harrison’s communication.
12. On December 19, 2002 defendants filed a Motion for Summary Judgment and a Motion to Delay Depositions until Summary Judgment was heard by the court.
13. On December 23, 2002, defendant Dottie Harrison faxed Mr. Killeen as a courtesy to repeat that defendants would not be available for depositions on December 24, 2002, quoted some rules from the Guidelines for Professional Conduct, and again asked Mr. Killeen to behave in a courteous and cooperative manner. (See attached Exhibit D.)
14. On December 26, 2002, defendants received plaintiffs’ answers to requests for discovery. Defendant Dottie Harrison faxed Mr. Killeen in response to plaintiffs’ evasive and incomplete answers to discovery that were unreasonably frivolous and made for the purposes of delay. In her fax, sent at 11:44 a.m. on December 26, 2002, defendant Dottie Harrison asked Mr. Killeen to contact her by 5:00 p.m. to give a commitment as to when Mr. Killeen would furnish the withheld discovery. (See attached Exhibit E.) Mr. Killeen did not respond to defendant Dottie Harrison’s communication, necessitating defendants’ Motion to Compel.
15. In the same December 26, 2002 fax, defendant Dottie Harrison asked Mr. Killeen to send copies of discovery requests that are signed pursuant to Texas Rules of Civil Procedure Rule 191.3(a)(1). (See attached Exhibit E.) Mr. Killeen did not respond to defendant Dottie Harrison’s requests to (1) provide the discovery that was withheld or (2) to provide signed copies..
16. On January 8, 2003, defendant Dottie Harrison sent a fax to Mr. Killeen of a second notice of defendants’ request for signed copies of discovery. On January 15, 2003, defendant Dottie Harrison faxed Mr. Killeen a third notice of defendants’ request for signed copies of discovery. (See the January 15, 2003 fax attached as Exhibit G which references the December 26, 2002 and January 8, 2003 faxes.) Mr. Killeen has never responded to defendant Dottie Harrison’s requests.
17. On December 30, 2002, defendant Harry Harrison faxed Mr. Killeen and asked Mr. Killeen to return certain privileged documents that Mr. Harrison had inadvertently provided to Mr. Killeen. On January 8, 2003, defendant Harry Harrison faxed a second request to Mr. Killeen asking that Mr. Killeen return said privileged documents. Defendant Dottie Harrison faxed a third request for same on January 14, 2003.to Rob Negrin, another of plaintiffs’ attorneys. (See Exhibit F, the fax of January 14, 2003 which references this request on 12/30/02 and the request repeated on 01/08/03.) Mr. Killeen did not respond to defendant Harry Harrison’s first two requests. Defendants finally received these requested documents on January 17, 2003. This was the first and only request of defendants that plaintiffs have responded to or honored.
IV.
ARGUMENT
18. A court may sanction a party for abuse of the discovery process in resisting discovery (Tex. R. Civ. P. 215(3) and for production that is unreasonably frivolous. A party may also be sanctioned for a response or answer that is made for purposes of delay. Furthermore, an evasive or incomplete answer is to be treated as a failure to answer. (Tex. R. Civ. P. 215(1)(c).) Plaintiffs’ claims against defendants include “business disparagement,” yet plaintiffs refuse to offer any evidence of business disparagement. Defendants’ requests for plaintiffs’ tax returns and other financial documents are reasonable and proper in this case. Plaintiffs’ response that such requests by defendants are “harassing, annoying, and invades the personal, constitutional, or property rights of plaintiffs” and “no such documents exist” is a mockery of defendants and of this Court. Withholding of evidence by plaintiffs can be interpreted in favor of defendants by a finder of fact.
19. Defendants contend that this very suit against them is “harassing, annoying, and an invasion of their privacy,” yet defendants have always behaved in a courteous, cooperative manner, and have willingly produced all discovery requested by plaintiffs.
20. Plaintiffs also refuse to furnish the last name of “Christina,” or any other information about “Christina, who was the secretary of Dr. Nichols in March of 2002. Plaintiffs allege such request by defendants is a “fishing expedition” and further, plaintiffs contend that such request asks them to “produce a document.” Plaintiffs’ frivolous responses to defendants’ request to furnish information about “Christina” is another mockery of defendants and of this Court. “Christina” has knowledge of the facts regarding this case and also has knowledge of the combative, uncooperative behavior that Dr. Nichols demonstrated toward defendants Harry and Dottie Harrison regarding their requests for Dr. Nichols to correct his medical records on defendant Harry Harrison. Further, “Christina” may be a witness to, or have knowledge of, a fraudulent act referenced in paragraphs 23 through 26 of Defendants Original Counterclaims filed with the court on January 14, 2003. Therefore, it is obvious why plaintiffs’ don’t want “Christina” to be called or deposed in this case. Withholding such relevant information by plaintiffs can be interpreted against plaintiffs and in favor of defendants by a finder of fact.
21. This cause is rapidly approaching trial date. Plaintiffs put undue burden on defendants because defendants have no other way to proceed with their defense without the production of such documents referenced in paragraphs 18 and 20 above, since a very basis of plaintiffs’ suit is an alleged financial loss, i.e., “business disparagement,” due to defendants’ alleged “libel and slander.” Plaintiffs are obstructing justice and abusing the discovery process in resisting discovery of information that is critical to defendants’ defense with regard to plaintiffs’ allegations.
22. In exercising its discretion, a court is not limited to considering only the specific violation; it may consider any other matters which have occurred during the course of the litigation. . Vernon's Ann.Texas Rules Civ.Proc., Rule 215, subd. 2, pars. b, b(5). Also, see Gentry, 909 S.W. 2d at 611; trial court is given broadest discretion in imposing discovery sanctions and in choosing appropriate sanctions. and Glanz, 721 S.W. 2d at 388; party seeking to exclude documents must specifically plead particular privilege or immunity claimed and request a hearing on its motion. Vernon's Ann.Texas Rules Civ.Proc., Rule 167. Defendants request that this Court take judicial notice of the facts in paragraphs 6 through 21 herein.
23. Sanctions under Texas Rules of Civil Procedure Rule 13 allows courts to sanction litigants who sign pleadings, motions, or other papers that are groundless and brought in bad faith or for the purpose of harassment. Further, the Tex. Civ. Prac. & Rem. Code § 10.001 allows a court to sanction a party or their attorney, or both of them, for filing a motion that is frivolous or filed for an improper use. If Rule 13 is violated, the court upon motion or on its own initiative, after notice and hearing, must impose an appropriate sanction available under Rule 215(2)(b) upon the person who signed the document, a party that is represented by counsel, or both of them. Defendants allege that plaintiffs’ motion for this Court to reconsider its order to compel discovery is frivolous and made for purposes of harassment and delay, not withstanding the fact that plaintiffs are already in violation of said Order by this Court.
24. Texas Civil Practice and Remedies Code, Chapter 10, is a statute even broader than
Rule 13. Defendants allege that plaintiffs brought their motion for the court to reconsider its order to compel discovery for purposes of harassment and to cause unnecessary delay or needless increase in the cost of litigation. A party may make a motion for sanctions pursuant to chapter 10 or a court may enter an order, on its own initiative, that describes the specific conduct that appears to violate section 10.001 and direct the alleged violator to show cause why the conduct is not in violation of this statute. 10.002.
25. The factors a court should consider before imposing sever sanctions are: (1) the extent of the party’s personal responsibility; (2) the prejudice to the adversary caused by the failure to respond to discovery; (3) any history of dilatoriness; (4) whether the conduct of the attorney or the party was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal; and (6) the merit of the party’s allegations of claims or defenses. Hanley, 813 S.W. 2d at 517-18. Examples of prejudice to adversary caused by failure to respond to discovery are irretrievable loss of evidence, dimming of witnesses' memories, or excessive and possibly irremediable burdens or costs imposed on opposing party. Vernon's Ann.Texas Rules Civ.Proc., Rules 215, 215, subd. 2, par. b(5).
26. The Texas Rules of Civil Procedure, through discovery procedures, afford litigants an opportunity to make themselves aware of the opponents’ proof. In order to effectuate this intent, the Texas Supreme Court has supported the use of sanctions to both punish and deter abuse of the discovery process. Bodnow Corp. v. City of Hondo, 721 S.W. 2d 839, 849 (Tex. 1986) (per curiam). Discovery sanctions further the interests of justice by: (1) securing the parties’ compliance with the rules of discovery; (2) deterring other litigants from violating the discovery rules; and (3) punishing parties that violate the rules of discovery. Baluch v. O’Donnell, 763 S.W. 2d 8, 11 (Tex. App.-Dallas 1988, orig. proceeding).
V.
PRAYER
Defendants have proven in the facts above that plaintiffs and plaintiffs attorneys have not only violated the discovery rules, but have also conducted themselves in an abusive and harassing and malicous manner toward defendants in this cause. Therefore, in light of the sanctionable conduct of plaintiffs Dr. Mark Nichols and Mark Lynn Nichols, M.D., P.A., and attorneys Robert J. Killeen, Jr. and Killeen & Wheat, P.L.C., defendants Harry and Dottie Harrison respectfully request that this Court impose the following sanctions:
1. Monetary sanctions beyond the expenses incurred in bringing this issue before the court and securing a ruling. Punitive monetary sanctions are not severe sanctions, because they do not directly inhibit a party from presenting all of its case on the merits. See TransAmerican, 811 S.W. 2d 918-19. And: although Rule 215 does not specifically identify the award of monetary sanctions which are unrelated to attorney fees and expenses, such an award is proper as long as it is just. See Braden v. Downey, 811 S.W. 2d 922, 930 (Tex. 1991); Ismail v. Ismail, 702 S.W. 2d 216, 224 (Tex. App.-Houston [1st Dist.] 1985, writ ref’d n.r.e.); Firestone Photographs, Inc. v. Lamaster, 567 S.W. 2d 273, 277 (Tex. Civ. App.-Texarkana 1978, no writ).
2. An order charging all or any portion of the expenses of discovery or taxable court costs or both against plaintiffs and plaintiffs’ attorneys.
3. An order staying further proceedings until the order is obeyed and defendants have been provided with all discovery requests including depositions.
4. An order that the matters regarding paragraphs 18 and 20 herein shall be taken to be established for the purposes of the action in accordance with defendants’ claims, and therefore striking plaintiffs’ claims of “business disparagement.”
These sanctions are appropriate in this case because they will encourage plaintiffs Dr. Mark Nichols and Mark Lynn Nichols, M.D., P.A. to comply with the Rules of Civil Procedure and this Court’s orders and they will deter others from engaging in similar abusive tactics.
Respectfully submitted,
Harry A. Harrison, defendant pro se
Dottie Harrison, defendant pro se
CERTIFICATE OF ATTEMPTED RESOLUTION
I certify that I made reasonable and repeated efforts to resolve the dispute giving rise to this motion without the necessity of Court intervention, and that those efforts failed.
Dottie Harrison, defendant pro se
I
hereby certify that a true and correct copy of the above defendants’ Motion to
Compel Discovery and Motion for Sanctions have been served in accordance with
Rule 21a of the Texas Rules of Civil Procedure via telephonic document transfer
to all known counsel of record as indicated below, on this 17th day of January,
2003.
Robert
J. Killeen, Jr.
Killeen & Wheat, PLC
8 Greenway Plaza, Suite 614
Houston, TX 77046
Via fax to: 713-626-4545
This Court, having considered defendants Harry and Dottie Harrison’s Motion for Sanctions, and all evidence and arguments by defendants and any responses by counsel for plaintiffs, is of the opinion that the Motion should be granted and that there are no lesser sanctions that can be imposed to (1) secure the plaintiffs’ compliance with the discovery rules; (2) deter other litigants from violating the discovery rules; and (3) punishing parties that violate the rules of discovery.
ORDERED THAT monetary sanctions against plaintiffs and plaintiffs attorneys in the amount of be awarded beyond the expenses incurred in bringing this issue before the court and securing a ruling. It is, further,
ORDERED THAT plaintiffs and plaintiffs’ attorneys pay all (or portion) of the expenses of discovery or taxable court costs or both. It is, further,
ORDERED THAT in light of the already punitive delay caused by plaintiffs and plaintiffs’ attorneys in refusing to provide discovery, further proceedings are stayed until the defendants have been provided with all discovery requests including depositions. It, is further,
ORDERED THAT in light of plaintiffs determination to withhold discovery mentioned in paragraphs 18 and 20 of this Motion for Sanctions, the matters regarding paragraphs 18 and 20 shall be taken to be established for the purposes of the action in accordance with defendants’ claims, and therefore plaintiffs’ claims of “business disparagement” are ordered to be struck. It is, further,
ORDERED THAT in addition to the above sanctions, reasonable and necessary fees and expenses incurred as a result of being forced to bring this Motion for Sanctions shall be awarded to defendants.
SIGNED THIS day of , 2003.
JUDGE PRESIDING
Approved as to form
and entry requested:
Dottie Harrison, defendant pro se
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