High Court Upholds Ultimate Sanction in Legal Malpractice Suit

By John Council
Texas Lawyer
May 3, 2004, Page 5

For years, Texas Supreme Court opinions have set the standard trial courts must follow before issuing what's known as a death-penalty sanction to a party -- striking a pleading. But the high court has not found a case on appeal in recent memory that warranted it -- until now.

In an April 23 opinion, George E. Cire Jr., et al. v. Carla Roberson Cummings , the court considered a Houston legal malpractice suit in which the defendant lawyer accused the plaintiff of destroying evidence among other things, conduct a Supreme Court justice deemed "egregious."

In previous decisions, the court has found that sanctions "should fit the crime" and that trial courts are required to consider sanctions other than striking pleadings to correct misdeeds in matters such as discovery abuse in civil suits. But in Cire, a unanimous Supreme Court found that conduct involving the destruction of dispositive evidence by the plaintiff was so "exceptional" that her case deserved "death-penalty sanctions."

In Cire, Carla Roberson Cummings filed a legal malpractice fee-forfeiture suit in 1996 against her two former attorneys at Houston 's Taylor & Cire. Cummings alleged that her attorneys had not informed her how the multimillion-dollar settlement she had received in an underlying toxic-tort suit would be structured. She also claimed her attorneys told her the settlement would be tax free, according to the opinion. In pre-trial proceedings, the Taylor & Cire attorneys vehemently denied Cummings' allegations.

Cummings made between 70 and 100 secret audiotapes of conversations with her lawyers during the eight months preceding the settlement of the toxic-tort suit, according to the opinion. George E. Cire Jr. and Martha K. Adams' attorneys requested production of the tapes, which they contended would show that Cummings' malpractice allegations were false. Trial judges ordered Cummings to produce the tapes, but she refused, according to the Supreme Court's Cire opinion.

After Cummings filed "frivolous, incomplete answers" and "frivolous objections to discovery requests," according to the opinion, the trial judge ordered that Cummings' counsel pay $250 in attorneys' fees to Cire and Adams' counsel.

At a sanctions hearing, Cummings testified that she had possession of the audiotapes and did not destroy them. But Cire and Adams' attorneys produced evidence that Cummings had burned the tapes in the presence of friend and "laughed with her friends about being a habitual liar," according to the Cire opinion.

In her 1999 decision striking Cummings' pleadings, Judge Sherry Radack, then of Houston's 55th District Court, ruled that Cummings "flagrantly violated" several discovery orders, gave conflicting testimony under oath, and had "deliberately destroyed/and or concealed material evidence." Radack also found that Cummings' actions in the malpractice suit indicated that her claims lacked merit, according to the Cire opinion.

Amarillo's 7th Court of Appeals reversed Radack's decision, finding that she abused her discretion by failing to consider alternative, lesser sanctions, and by not explaining why lesser sanctions would not suffice.

Cire and Adams appealed the decision.

But the Supreme Court, in an opinion written by Justice Michael Schneider, found that Radack made the right decision in tossing Cummings' malpractice suit out of her court. Radack now is chief justice of Houston's 1st Court of Appeals.

"Because of the egregious conduct and blatant disregard for the discovery process demonstrated here, including the violation of three court orders ordering the production of the audiotapes, we conclude that death penalty sanctions are clearly justified," Schneider wrote.

"This is an exceptional case where it is fully apparent and documented that no lesser sanctions would promote compliance with the discovery rules, and the trial court did not abuse its discretion in striking Cummings' pleadings," Schneider wrote.

Extraordinary Case

Usually when the Supreme Court takes up the issue of death-penalty sanctions, the court finds in favor of the alleged wrongdoer instead of the victim, says Charles R. "Skip" Watson, who represents Cire and Adams.

That's been the case since the high court decided TransAmerican Natural Gas Corp. v. Powell in 1991, which required that misconduct be extraordinary and that lesser sanctions be considered, says Watson, a shareholder in Amarillo's Mullin, Hoard & Brown.

"The significance of the Cire case is that it's the first case since TransAmerican to say what those exceptional circumstances are that would permit the trial court to determine that it would be unjust to allow the case to proceed, thus warranting death-penalty sanctions," Watson says. "Here that unjustness was very clear."

Cummings' attorney, Houston solo L.T. "Butch" Bradt, says the opinion surprised him.

He believes the Supreme Court failed to address one of his primary issues — that Taylor & Cire attorneys allegedly failed to obtain a written waiver, as required by Texas Rule of Disciplinary Procedure 1.07, in acting as intermediaries between Cummings and her ex-husband; both were to receive money in the toxic tort settlement.

Cummings also argued in a brief to the high court that her due-process rights were violated by having her pleadings struck, contending, among other things, that she did not abuse the discovery process and turned over the only tape that she had.

Bradt says he plans to file a motion for rehearing with the Supreme Court.

Charles "Chuck" Herring Jr., a partner in Austin's Herring & Irwin who often represents clients who sue their attorneys for malpractice, says it's rare for trial courts to strike a party's pleading.

But based on the facts in Cire, the call to issue the death-penalty sanction was the correct one, Herring says.

"It's appropriate in an extraordinary case," Herring says. "And it sounds like we've got one."

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