### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-08-00472- CV

P atric ia Ann Powers, Appellant

v.
F rem ont Ind ustrial Ind em nity Com pany c/o T P CIG A Carr ier, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 261 ST JUDICI AL DISTRICT NO. D-1 -GN-0 7-0 0112 2, H ONO RAB LE MARGARET A. CO OP ER, JUDGE P RESIDING

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

P atricia Ann Powers appea ls the dismiss al of her suit for worke r’s compensa ti o n
benef its as a sanction for discovery abuse. Powers asser ts on appea l that appellee , Fr emont I ndustrial

I ndemnity Company c/o TPCI GA Carrie r, committed discovery abuse which was not addre ssed and
that she had be en pre viously deposed by

the ca rrier . We affir

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

proper discovery reque sts or order s to provide or permit discovery

. Tex. R. Civ. P. 215.2(b)( 5). This
decision is entrusted to the t ri al court’s “sound discretion.” TransAmerican Natural Gas Corp.

v. Powell , 811 S.W .2d 913, 917 (Tex. 1991). We revie w such a dismiss al to deter mine whether the
sanction is dire ctly rela ted to the party ’s conduct and whether a less stringe nt sa nction would have
been a ppropriate

. Id

.Powers filed this suit on April 16, 2007. The rec ord reve als that the following events

ensued:

October 23, 2007 Ap p el l ee fi l ed a m o tion to compel attendanc e at oral d ep o s i t i o n ,

al l eg ing (1) that it had sent Powers notice of intent to take h er deposition; (2) that P o we rs did not acc ept delivery of that notice; (3) th at its attorney e-ma iled Powers on October 11, 2007, advising her of the deposition schedule d for the next day ; and (4) that Powers responde d by

e-ma il, “NO.”
November

15, 2007 T h e t ri al co u rt s i gn ed an o rd er fi n d i n g t h at P o we rs comm i t t ed

discovery abuse by intentionally

failing to appea

r at the deposition. The court order ed Powers to appea r for an o ral deposition on Dec ember 12, 2007. The deposition was set for the courthouse annex in Powers’s home co u n t y
. The court war ned that any failure by Powers to appea

r for this deposition could result in further sanctions including dismiss al of all cause s of action. The trial court considere d monetary sanctions, but opted not to impose them beca use of Powers’s f

inancial situation.

J anuar y 8, 2008 Appellee filed a moti o n t o dismiss as sanction for discove ry abuse, all eg ing that its attorney (1) forwa rded to Powers a copy of the November 15, 2007 o r d e r compelling her attendanc e at the deposition by cer tified mai l , (2) confirme d that the order was returne d unclaimed, and (3) that Powers failed to ap p ear at t he depositi on as order ed.

Fe bruar y 14, 2008 P o we rs fi l ed a petition opposing dismiss al, allegin g t h at ap p el l ee

objected to a

nd otherwise ref

used to respond to Powers’s Marc h 13, 2 0 07 discovery reque st for TPCI GA’s financ ial statements from 1 9 9 9 to that dat e. She alleg ed that appellee ’s attorney chang ed the September dates of her deposition dates by email. She also asser ted that she twice reque sted a hear in g in late 2007 reg arding appellee ’s ref usal to provide the reque sted financ ial s t atements, and that she
rec eived no r esponse.

I n its J une 23, 2008 order dismiss ing Powers’s suit as a sanction for discovery abuse, the trial court
stated that appellee prese nted evidenc e that Powers failed to appea r for t h e co urt-orde red

2Dec ember 12, 2007 deposition setting. The court found that, by not acc epting the discovery notice

and a court order and by failing to appea r at the deposition setti n gs , P o wer s “has demonstrated continuing and fl ag rant bad faith and discovery abuse, and has demonstrated continuing flag rant disreg ard for the formal rules of discovery , and has demonstrated disreg ard for the authority of this
Court and its lawful orde rs.”

The issues Powers raises on appea l do not addre ss or undermine th e m erits of the
trial court’s dismiss al of her claims. She asser ts that appellee failed to produce reque sted financ ial

statements and that the trial court failed to hold a hear ing reg arding that failure , that she had g iven

a d ep o sition previously , that the district court appea red biased beca

use it “par dons and overlooks
the err ors and insults that are committed by the car rier,” that it is “hy

per- vigilant and subscribes to

a double-standa

rd for the pro-se ” worke rs’ c o mp e n s a ti o n c li e n ts, and that the worke rs’ compensa tion
commission is “jade d and heavily biased ag ainst the Texas injured worke r.” Ex cept for the complaint reg arding appellee ’s discovery response s, these asser tions do not appea

r to have been

prese nted to the trial court. These asser tions are not su p p o rt ed by evidenc e in the rec ord. These

asser tions do not ex cuse her from comply ing with la wful and rea sonable deposition settings, fr om

acc epting deposition notices and order s from the trial court, or from comply ing with an order from
the trial court to appea

r fo r d ep osition—particularly when the order war ned that failure to appea

r
could result i n dismiss al of her lawsuit. Most critica lly , howeve r, none of P ower s’s asser tions on
appea l challeng e the tria l court’s finding s supporting its dismissal of her c laims.

I n response to Powers’s failure to appea r for a deposition, the trial court order ed her

to appea r at a deposition in her hometown. I t declined to impose monetary sanctions. The terms of

3the November 15, 2007 order wer e rela ted to and pro p o rt i o n al wi th Powers’s conduct. Powers’s

re s p onse was to ref

use to acc ept the order and to ref use to appea

r for the deposition. I n light o f
Powers’s further re fusal to participa te in the normal proce sses of a lawsuit that she initiated, the
trial court dismiss ed her lawsuit. We conclude that the trial court acte d wi t h i n t h e bounds of its
sound discretion.

Affir med.

G. Alan Waldrop, Just ice

Be fore J ustices Patterson, Pember ton and Waldrop
Affir med
Filed: De cembe r 2, 2009

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