in Re Supportkids, Inc., Formerly Child Support Enforcement, Inc.

Opinion issued November 26, 2003

In The

Court of Appeals

For The

First District of Texas

NO. 01-02-00803-CV

____________

IN RE SUPPORTKIDS, INC., F/K/A

CHILD SUPPORT ENFORCEMENT, INC.

Original Proceeding on Petition for Writ of Mandamus

O P I N I O N

By petition for writ of mandamus, relator, Supportkids, Inc.

(Supportkids),

challenges the trial court’s

orders of July 3, 2002 and July 24, 2002, imposing

sanctions on Supportkids for failing to timely and fully answer two interrogatories

propounded by the real party in interest, Cynthia Morris (Morris). In its sole issue,

Supportkids contends that the trial court abused its discretion in imposing “unjust and

excessive” sanctions and that it has no adequate remedy by appeal.

We conditionally grant the petition for writ of mandamus, in part.

Facts and Procedural Background

In 1999, Morris signed a contract with Supportkids to retain its services in

collecting unpaid child support owed to her by her ex-husband. Morris subsequently

sought to cancel the parties’ contract, and, following a dispute between the parties,

Morris filed the underlying lawsuit against Supportkids, in which she alleged causes

of action for, among other things, violations of the Texas Debt Collection Act.

During the course of the litigation, Morris propounded the following two

interrogatories to Supportkids:

1.Identify all lawsuits involving [Supportkids] from 1991 to the

present. Please include the caption of the case and the court in

which such action is pending.

2.Identify and provide the addresses of all persons with whom

[Supportkids] has entered into a contract in Texas for the purpose

of collecting past due child support from 1991 to the present.

In its answer to interrogatory number one, Supportkids provided no responsive

information, but objected to the interrogatory on the grounds that it was “overbroad,

unduly burdensome, harassing and not reasonably calculated to lead to the discovery

of admissible evidence.” Supportkids answered interrogatory number two similarly,

and made an additional objection that the interrogatory was “an invasion of property

rights.”

Morris subsequently filed a motion to compel Supportkids to answer these

interrogatories, and on February 12, 2002, the trial court signed an order granting

Morris’s motion to compel. In its order, however, the trial court narrowed the scope

of the information Supportkids was ordered to produce to Morris as follows:

1.Identify all lawsuits of [Supportkids] involving the collection of

child support in a wrongful or tortious manner or the collection

of fees in a wrongful or tortious manner from 1995 to the present.

Please include the caption of the case and the court in which such

action is pending.

2.Identify the names of all persons with whom [Supportkids] has

entered into a contract in Texas for the purpose of collecting past

due child support from 1991 to the present and who also

complained to or about [Supportkids] to [Supportkids] or a

third-party which made [Supportkids] aware of the complaint .

(Emphasis added.)

Supportkids filed a petition for writ of mandamus in this Court, challenging the

trial court’s February 12, 2002 order, and we denied mandamus relief on April 4,

2002.

During the pendency of this first original proceeding before this Court,

Supportkids filed a motion to stay the enforcement of the trial court’s February 12,

2002 order. The trial court denied that motion. Supportkids then filed a petition for

writ of mandamus and a motion for emergency stay of the trial court’s February 12,

2002 order in the Texas Supreme Court. The petition and motion for stay were both

denied, without opinion, on May 30, 2002.

Morris subsequently filed a motion requesting that the trial court compel

Supportkids to answer the interrogatories and sanction Supportkids for its failure to

do so. On July 1, 2002, Supportkids faxed its supplemental answers to the

interrogatories, as narrowed by the trial court’s February 12, 2002 order, to counsel

for Morris. In its supplemental answer to interrogatory number one, Supportkids

provided the captions of four lawsuits filed against it and identified the courts in

which three of those suits were pending. Supportkids did not list the cause numbers

of the lawsuits listed. In its supplemental answer to interrogatory number two,

Supportkids provided the names of 29 persons. Supportkids did not include Morris

on this list and did not verify the supplemental answers.

On July 3, 2002, the trial court conducted a hearing on Morris’s motions to

compel and for sanctions. At the conclusion of that hearing, the trial court ordered

Supportkids to “completely and fully” answer interrogatory number one and to “clean

up” its answer . In addition, the trial court ordered that “as a [s]anction,” Supportkids

was required to answer interrogatory number two in the scope in which the

interrogatory was originally written. Specifically, the trial court ordered Supportkids

to “identify and provide the addresses and phone numbers . . . of all persons with

whom [Supportkids] has entered into a contract in Texas for the purpose of collecting

past due child support from 1991 to the present.” The trial court also ordered

Supportkids to pay Morris $2,500 in attorney’s fees as an additional sanction.

On July 24, 2002, the trial court held a compliance hearing. At the hearing,

counsel for Supportkids conceded that, as a result of his own misunderstanding of the

trial court’s ruling, Supportkids had not produced the information regarding its client

list that it was ordered to produce. The trial court found that Supportkids had not

complied with the July 3, 2002 order, ordered Supportkids to comply with the order,

and sanctioned Supportkids an additional $7,500 in attorney’s fees.

Analysis

In its sole issue, Supportkids argues that the trial court abused its discretion in

its July 3 and July 24, 2002 orders requiring Supportkids to produce to Morris a list

of all of its Texas clients from 1991 to the present, as well as those clients’ names,

addresses, and phone numbers, as a sanction for discovery abuse. Supportkids also

challenges the trial court’s orders requiring Supportkids to pay Morris $10,000 in

attorney’s fees.

Standard of Review

Mandamus is an extraordinary remedy, which is available when a trial court

clearly abuses its discretion and when there is no adequate remedy on appeal. Walker

v. Packer , 827 S.W.2d 833, 840-44 (Tex. 1992); In re Kellogg Brown & Root , 7

S.W.3d 655, 657 (Tex. App.— Houston [1st Dist.] 1999, orig. proceeding) . An

appellate court cannot cure a trial court’s error, and a party does not have an adequate

remedy by appeal, where a discovery order imposes a burden on a producing party far

out of proportion to any benefit that may obtain to the requesting party. Walker , 827

S.W.2d at 843 .

When a trial court finds that a party has abused the discovery process in

answering interrogatories, Rule 215 authorizes the trial court to impose an

appropriate sanction. Tex. R. Civ. P . 215.1(d), 215.3. However, any sanctions

imposed under Rule 215 must be just under the circumstances. Tex. R. Civ. P .

215.2(b); In re Ford Motor Co. , 988 S.W.2d 714, 718 (Tex. 1998); TransAmerican

Natural Gas Corp. v. Powell , 811 S.W.2d 913, 917 (Tex. 1991).

When determining whether the sanctions a trial court imposes are just, we must

consider two factors. First, we consider whether there is a direct relationship between

the offensive conduct and the sanctions. In re Ford , 988 S.W.2d at 718 ;

TransAmerican , 811 S.W.2d at 917 (“[T]he sanctions the trial court imposes must

relate directly to the abuse found.”) . This analysis necessarily requires determining

whether the underlying conduct actually constitutes an abuse of the discovery

process. Second, we consider whether the sanctions are excessive. In re Ford , 988

S.W.2d at 718 ; TransAmerican , 811 S.W.2d at 917 (“A sanction imposed for

discovery abuse should be no more severe than necessary to satisfy its legitimate

purposes. It follows that a court must consider the availability of less stringent

sanctions and whether such lesser sanctions would fully promote compliance.”). We

apply these guidelines in assessing the sanctions imposed by the trial court in this

case.

Compliance with February 12, 2002 Order

The record indicates that Supportkids did not comply with the trial court’s

February 12, 2002 order in all respects. Supportkids did not (1) provide the

information within 30 days of the date of the order, following the denial of its

motions for a stay of the order, (2) provide the trial court information for one of the

lawsuits listed in its answer to interrogatory number one, (3) include Morris’s name

in its answer to interrogatory number two, and (4) verify its answers.

The trial court, in its July 3, 2002 order, required Supportkids, as a sanction,

to produce its entire Texas client list. The trial court expressed on the record that it

ordered this sanction in response to Supportkids’ failure to “completely and fully”

comply with the February 12, 2002 order. Thus, it appears that this sanction was

“directly related” to the alleged offensive conduct.

As to whether this sanction was excessive, Morris argues that, in light of the

variety of sanctions the trial court could have chosen, it merely required Supportkids

to produce otherwise discoverable information, and the sanction was not excessive.

We disagree.

In its belated answers to interrogatory number two, Supportkids identified only

29 former clients, not including Morris, who had complained directly or indirectly

about Supportkids’ services since 1991. The trial court’s sanction, requiring

Supportkids to produce a list of approximately 18,000 additional names, addresses,

and telephone numbers was extremely harsh. The sanction was far more severe than

necessary to appropriately deter Supportkids from future discovery abuse. In fact,

when first presented with the question of whether such information was discoverable,

the trial court considerably narrowed the scope of the information discoverable by

Morris, as reflected in the court’s February 12, 2002 order. Moreover, the record

indicates that the trial court did not consider either the availability of less stringent

sanctions or whether such lesser sanctions would fully promote compliance.

Accordingly, we hold that the portion of the trial court’s July 3, 2002 order

compelling Supportkids to produce, as a sanction, the addresses and phone numbers

of all persons with whom it has entered into a contract in Texas for the purpose of

collecting past due child support from 1991 to the present was an excessive sanction

and constituted an abuse of discretion. Furthermore, because the sanction compels

the production of information that imposes a burden on Supportkids “far out of

proportion to any benefit” that may obtain to Morris, we hold that Supportkids does

not have an adequate remedy by appeal to cure the error. See Walker , 827 S.W.2d at

843 .

As noted above, in its July 24, 2002 order, the trial court found that

Supportkids had failed to comply with the court’s July 3, 2002 order. The trial court

again ordered Supportkids to produce, within one week, the information concerning

its clients, and further ordered Supportkids to pay the Chambers County District

Clerk, as a sanction, $5,000 per day “until these materials are provided to [Morris’s]

counsel.”

Because we have held that the trial court abused its discretion in ordering

Supportkids to produce, as a sanction, the addresses and phone numbers of all persons

with whom it has entered into a contract in Texas for the purpose of collecting past

due child support from 1991 to the present, we further hold that the portions of the

trial court’s July 24, 2002 order requiring Supportkids to produce the same

information and imposing a potential daily sanction of $5,000 also constituted an

abuse of discretion for which Supportkids does not have an adequate remedy by

appeal.

Attorney’s Fees

In its July 3 and July 24, 2002 orders, as additional sanctions, the trial court

ordered Supportkids to pay Morris $10,000 as attorney’s fees. Under Rule 215, an

award of attorney’s fees as a sanction for abuse of discovery is subject to review on

appeal from the final judgment. Tex. R. Civ. P . 215.3 ; In re Ford , 988 S.W.2d at 722 .

Thus, we hold that Supportkids has an adequate remedy by appeal from the trial

court’s award of attorney’s fees, and we do not address the propriety of the portions

of the trial court’s July 3 and July 24, 2002 orders awarding Morris these attorney’s

fees.

Conclusion

We conditionally grant the petition for writ of mandamus, in part, and order the

trial court to vacate the portions of its orders of July 3 and July 24, 2002 (1) requiring

Supportkids to produce the addresses and phone numbers of all persons with whom

it has entered into a contract in Texas for the purpose of collecting past due child

support from 1991 to the present, and (2) imposing a potential daily sanction of

$5,000 for non-compliance. We deny the petition for writ of mandamus as to all

other portions of the trial court’s July 3 and July 24, 2002 orders. We also lift our

stay. We will issue the writ only if the trial court fails to comply.

Terry Jennings

Justice

Panel consists of Justices Taft, Jennings, and Hanks.