Court of Appeals of Texas, Beaumont.

Patricia A. DAVIS, Appellant,

v.

LIVINGSTON INDEPENDENT SCHOOL DISTRICT, Appellee.

No. 09-97-174CV.

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Submitted on Nov. 12, 1998.

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Opinion Delivered Dec. 10, 1998.

Before WALKER, C.J., BURGESS and STOVER, JJ.

OPINION

STOVER.

*1 Appellant Patricia Davis (Davis) appeals from the trial court’s order which granted appellee’s motion for sanctions, struck her pleadings, and entered judgment against her.

PROCEDURAL HISTORY

Appellee Livingston Independent School District (LISD) filed suit against Davis to set aside a final decision and order of the Texas Workers’ Compensation Commission, which had found Davis was injured in the course and scope of her employment and, as a result, suffered disability. Filed on the same day as LISD’s petition were its interrogatories, request for admissions, but not her answers to interrogatories or responses to the requests for production.

In November 1996, LISD filed a motion to compel the responses to the interrogatories and production requests. At the hearing on January 21, 1997, the trial court granted LISD’s motion and ordered Davis to respond to the discovery requests within twenty days. When Davis did not comply with the court’s order, LISD then filed on March 10, 1997, its motion for sanctions, asking the court to strike Davis’s pleadings and dismiss the cause of action. At the sanctions hearing on April 9, 1997, LISD acknowledged its receipt of the answers to interrogatories and one response to the requests for production.¹ However, LISD still had not received the remaining responses to the request for production and, as a result, urged the court to order sanctions against Davis. The trial court then struck Davis’s pleadings, reversed the decision of the Texas Workers’ Compensation Commission, and entered judgment setting aside the Commission’s decision and order. Thereafter on April 14, 1997, appellant filed her answers to interrogatories and responses to the request for production with the district clerk’s office, along with a motion asking the trial court to modify its sanctions order and reinstate the case.

COMPLAINT ON APPEAL

Davis appeals with one point of error: “The trial court abused its discretion in granting case determinative sanctions against Appellant.” According to Davis, the case was in its formative stages, the interrogatories and requests for production were basic in nature and not particularly specialized, and none of the requested information was crucial to LISD’s case. At the hearing on the motion for sanctions, appellant’s trial counsel admitted he made a mistake.

[APPELLANT’S TRIAL COUNSEL]: Judge, I screwed up. I sent the stuff in November to my client. She is suffering from a severe psychological stress…. She did not get and does not remember getting them. I forgot about them until I got the motion and hearing set for this.

A trial court may impose sanctions on a party abusing the discovery process. Bodnow Corp. v. City of Hondo, 721 S.W.2d 839, 840 (Tex.1986); Tex.R.Civ.P. 215. The discovery sanctions imposed by a trial court are within the court’s discretion and will be set aside only for a clear abuse of discretion. Id. at 840. To determine whether sanctions are just, we apply the two-prong test set out in TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex.1991):

*2 First, a direct relationship must exist between the offensive conduct and the sanction imposed. This means that a just sanction must be directed against the abuse and toward remedying the prejudice caused the innocent party. It also means that the sanction should be visited upon the offender. The trial court must at least attempt to determine whether the offensive conduct is attributable to counsel only, or to the party only, or to both…. [A] party should not be punished for counsel’s conduct in which it is not implicated apart from having entrusted to counsel its legal representation….

Second, just sanctions must not be excessive. The punishment should fit the crime. A sanction imposed for discovery abuse should be no more severe than necessary to satisfy its legitimate purposes….

….

Discovery sanctions cannot be used to adjudicate the merits of a party’s claims or defenses unless a party’s hindrance of the discovery process justifies a presumption that its claims or defenses lack merit…. Sanctions which are so severe as to preclude presentation of the merits of the case should not be assessed absent a party’s flagrant bad faith or counsel’s callous disregard for the responsibilities of discovery under the rules.

Id. at 917-18 (citations omitted).

In Hamill v. Level, 917 S.W.2d 15 (Tex.1996), the Texas Supreme Court addressed a set of facts similar to those in the instant case. There, the defendant (Level) filed an answer to plaintiff’s (Hamill’s) suit and at the same time served Hamill with a set of interrogatories and requests for production. As in the instant case, Hamill did not timely respond to the discovery requests. By letter, Level reminded him of the overdue responses, and after receiving no answer, Level filed a motion to compel. On the day the hearing was scheduled, Hamill proposed to serve his answers on a specified date some weeks in the future. After the deadline passed without any response from Hamill, Level filed a motion to dismiss. Although Hamill served his responses to the discovery requests on Level just before the hearing, the trial court granted Level’s motion and dismissed Hamill’s claims with prejudice. The Texas Supreme Court held the trial court abused its discretion by imposing death penalty sanctions prematurely. Id. at 16.

We conclude the sanctions imposed in this case are more severe than necessary to satisfy the legitimate purpose of sanctions. Here, trial counsel admitted he made a mistake in not timely responding to the discovery requests and the trial court’s order. To impose death penalty sanctions under these circumstances would severely punish the innocent client rather than her trial counsel. Based on the record before us, we conclude that, although trial counsel was unquestionably responsible for the offensive conduct, there was no flagrant bad faith or callous disregard of the discovery rules that would warrant death penalty sanctions. As in Hamil, the trial court abused its discretion by imposing death penalty sanctions prematurely.

*3 Consequently, we sustain point of error one and reverse and remand the cause to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

	Footnotes
1		There is some confusion in the record as to the actual date of the sanctions hearing; the trial court’s order recites the hearing date as April 8, 1997; the court reporter recites the hearing date as April 9, 1997, in her record. Regardless of which date is correct, LISD’s trial counsel stated during the hearing that he received the interrogatory answers and a response to one of the production requests the day before the hearing. The record indicates the actual filing date of the responses was April 14, 1997.