TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-08-00472-CV

Patricia Ann Powers, Appellant

v.

Fremont Industrial Indemnity Company c/o TPCIGA Carrier, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT

NO. D-1-GN-07-001122, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Patricia Ann Powers appeals the dismissal of her suit for worker’s compensation

benefits as a sanction for discoveryabuse. Powers asserts on appeal that appellee, Fremont Industrial

IndemnityCompany c/o TPCIGA Carrier, committed discovery abuse which was not addressed and

that she had been previously deposed by the carrier. We affirm.

A trial court may dismiss a party’s claims if the party fails to comply with

proper discovery requests or orders to provide or permit discovery. Tex. R. Civ. P. 215.2(b)(5). This

decision is entrusted to the trial court’s “sound discretion.” TransAmerican Natural Gas Corp.

v. Powell, 811 S.W.2d 913, 917 (Tex. 1991). We review such a dismissal to determine whether the

sanction is directly related to the party’s conduct and whether a less stringent sanction would have

been appropriate. Id.
Powers filed this suit on April 16, 2007. The record reveals that the following events

ensued:

October 23, 2007 Appellee filed a motion to compel attendance at oral deposition,

alleging (1) that it had sent Powers notice of intent to take her

deposition; (2) that Powers did not accept delivery of that notice;

(3) that its attorney e-mailed Powers on October 11, 2007, advising

her of the deposition scheduled for the next day; and (4) that Powers

responded by e-mail, “NO.”

November 15, 2007 The trial court signed an order finding that Powers committed

discovery abuse by intentionally failing to appear at the deposition. 

The court ordered Powers to appear for an oral deposition on

December 12, 2007. The deposition was set for the courthouse annex

in Powers’s home county. The court warned that any failure by

Powers to appear for this deposition could result in further sanctions

including dismissal of all causes of action. The trial court considered

monetary sanctions, but opted not to impose them because of

Powers’s financial situation.

January 8, 2008 Appellee filed a motion to dismiss as sanction for discovery abuse,

alleging that its attorney (1) forwarded to Powers a copy of the

November 15, 2007 order compelling her attendance at the deposition

by certified mail, (2) confirmed that the order was returned

unclaimed, and (3) that Powers failed to appear at the deposition as

ordered.

February 14, 2008 Powers filed a petition opposing dismissal, alleging that appellee

objected to and otherwise refused to respond to Powers’s March 13,

2007 discoveryrequest for TPCIGA’s financial statements from 1999

to that date. She alleged that appellee’s attorney changed the

September dates of her deposition dates by email. She also asserted

that she twice requested a hearing in late 2007 regarding appellee’s

refusal to provide the requested financial statements, and that she

received no response.

In its June 23, 2008 order dismissing Powers’s suit as a sanction for discovery abuse, the trial court

stated that appellee presented evidence that Powers failed to appear for the court-ordered

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December 12, 2007 deposition setting. The court found that, by not accepting the discovery notice

and a court order and by failing to appear at the deposition settings, Powers “has demonstrated

continuing and flagrant bad faith and discovery abuse, and has demonstrated continuing flagrant

disregard for the formal rules of discovery, and has demonstrated disregard for the authority of this

Court and its lawful orders.”

The issues Powers raises on appeal do not address or undermine the merits of the

trial court’s dismissal of her claims. She asserts that appellee failed to produce requested financial

statements and that the trial court failed to hold a hearing regarding that failure, that she had given

a deposition previously, that the district court appeared biased because it “pardons and overlooks

the errors and insults that are committed by the carrier,” that it is “hyper-vigilant and subscribes to

a double-standard for the pro-se” workers’ compensation clients, and that the workers’ compensation

commission is “jaded and heavily biased against the Texas injured worker.” Except for the

complaint regarding appellee’s discovery responses, these assertions do not appear to have been

presented to the trial court. These assertions are not supported by evidence in the record. These

assertions do not excuse her from complying with lawful and reasonable deposition settings, from

accepting deposition notices and orders from the trial court, or from complying with an order from

the trial court to appear for deposition—particularly when the order warned that failure to appear

could result in dismissal of her lawsuit. Most critically, however, none of Powers’s assertions on

appeal challenge the trial court’s findings supporting its dismissal of her claims.

In response to Powers’s failure to appear for a deposition, the trial court ordered her

to appear at a deposition in her hometown. It declined to impose monetary sanctions. The terms of

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the November 15, 2007 order were related to and proportional with Powers’s conduct. Powers’s

response was to refuse to accept the order and to refuse to appear for the deposition. In light of

Powers’s further refusal to participate in the normal processes of a lawsuit that she initiated, the

trial court dismissed her lawsuit. We conclude that the trial court acted within the bounds of its

sound discretion.

Affirmed.

 

G. Alan Waldrop, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed

Filed: December 2, 2009

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