Magnuson v. Randy Mullen, Electronic Data Sys., Inc., 65 S.W.3d 815 (Tex. Ct. App. 2002)

OPINION

LEE ANN DAUPHINOT, Justice.

Appellant Kenneth J. Magnuson appeals from the trial court’s judgment dismissing his suit against Appellees Randy Mullen, Electronic Data Systems, Inc. a/k/a EDS, and other unknown employees of EDS (collectively, Appellees) with prejudice to its refiling. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Magnuson was hired by EDS as a systems administrator on August 21, 1995. In October 1997, Mullen, Magnuson’s manager at EDS, prepared a “Performance Improvement Plan” (PIP) for Magnuson. The PIP stated that Magnuson was either tardy or absent from work without excuse on forty-five occasions in 1997. On February 26, 1998, Appellant’s employment with EDS was terminated.

Magnuson filed suit against Appellees on February 26, 1999, alleging that Mullen defamed him by including false statements concerning his absences from work in the PIP and that EDS was grossly negligent in failing to properly train Mullen. A copy of Magnuson’s petition was not served on Appellees, however, until Magnuson filed his first amended petition on April 1,1999.

On October 7, 1999, Appellees served Magnuson with requests for disclosures and for production. In a cover letter sent with the discovery requests, counsel for Appellees asked Magnuson to provide convenient dates in late November for his deposition in this case. On October 12, Magnuson filed a motion for enlargement of time and request for reasonable accommodations in the trial court. Magnuson claimed to be a disabled person under the Americans With Disabilities Act (ADA) because of a “severe and chronic orthopedic neck disorder” caused by brain surgery in 1993. The motion provides, in relevant part:

this Court, if such requested enlargements of time are not granted.

On October 26, 1999, after apparently receiving no response from Magnuson to the previous letter, Appellees noticed Mag-nuson’s deposition to take place on November 18 at 9:30 a.m. An affidavit of nonappearance reflects that Magnuson did not appear for his deposition at the scheduled time on November 18 and contains the following remarks by counsel for Appel-lees:

Indeed, in a letter dated November 15, 1999, Appellees’ counsel informed Magnu-son that, because he refused to appear for deposition at another time, she would not agree to pass his deposition scheduled for November 18. Additionally, counsel notified Magnuson that, unless she received his responses to the request for disclosures and request for production by November 23, “I will have no choice but to file a Motion to Compel, which may also include a request for sanctions.”

On January 24, 2000, the trial court notified the parties that the case had been set on the court’s trial docket for March 28, 2000. On January 31, Appellees filed a motion to compel responses to discovery and appearance for deposition and for sanctions, contending that Magnuson’s conduct in this case as well as in his suit against EDS currently pending in federal court reveals “a pattern and practice of blatant dilatory tactics and purposeful disregard of court orders.” In addition to Magnuson’s refusal to respond to Appel-lees’ discovery requests or to appear for his deposition in the instant case, Appel-lees pointed to his failure to comply with the trial court’s orders regarding discovery in the federal case. In that case, the court granted EDS’s motion to compel answers to discovery and for sanctions and ordered Magnuson to provide discovery responses by 5:00 p.m. on January 28, 2000, and to pay EDS $250 by December 24, 1999. Magnuson’s failure to abide by the court’s order in either regard prompted EDS to file a motion to dismiss the federal case with prejudice.

By fiat, the trial court set Appellees’ motion to compel for a hearing on February 18, 2000. Magnuson neither responded to the motion nor appeared for the hearing. Instead, Magnuson filed a motion for continuance on February 18, asking the court to grant him an additional 120 days to respond to Appellees’ discovery requests and to retain counsel. Mag-nuson claimed to have been prejudiced by the “untimely withdraw[alj” of his counsel in the federal case, which forced him to pursue his claims pro se. Additionally, Magnuson stated that he was involved in an automobile accident on January 13, 2000, sustaining injuries to his neck and back. According to Magnuson, these injuries aggravated his existing medical condition and limited his ability to perform the

following tasks for long periods of time: driving or traveling in an automobile, sitting up in a chair and reading or working at the computer, and standing or walking. Magnuson also claimed to suffer from severe headaches, ringing in the ears, neck pain, and sleeplessness. Magnuson asserted that his inability to obtain counsel along with his physical limitations necessitated an extension of time in which to respond to Appellees’ discovery requests.

By its order signed February 18, 2000, the trial court granted Appellees’ motion to compel and request for sanctions, ordering Magnuson to appear for deposition on February 29 at 9:00 a.m., to provide Appel-lees with a fully executed authorization to release confidential information as well as full and complete responses to Appellees’ discovery requests on or before 5:00 p.m. on February 24, and to pay $1,000 in costs to EDS on or before five days from the date of the order. Citing an inability to serve the February 18th order on Magnu-son at his residence, the Appellees filed a motion for substituted service on February 24, requesting that the court allow service by affixing a copy of the order to Magnu-son’s front door. Attached to the motion was process server Glenn Glasscock’s affidavit of attempted service, detailing nine unsuccessful attempts to serve Magnuson at his home between February 18 and February 22. During one such attempt on the evening of February 21, Glasscock observed Magnuson and his roommate creeping down the hallway in an effort to avoid being seen. On February 24, the trial court ordered substituted service of the February 18th order on Magnuson by posting a copy of the order to his front door, which Glasscock accomplished on February 25, 2000.

Magnuson filed a motion for extension of time, motion for rehearing, motion to quash the February 18th order, and motion for sanctions on February 24, 2000, contending that the trial court granted Appellees’ motion to compel without considering his disability, his February 18th motion for continuance, or his October 11th motion for enlargement of time. Magnuson again requested additional time to respond to discovery, adding that “any failure to reply ... has been excusable neglect due to medical reasons.” In addition, Magnuson sought extensions of time “as may be needed during the pendency of this trial” and that any hearing be conducted over the telephone because of problems with his hearing. The motions were subsequently set for a hearing on March 23, 2000.

On March 1, 2000, Appellees filed a motion for sanctions and to dismiss Magnu-son’s action with prejudice, claiming that Magnuson had failed to comply with any part of the trial court’s February 18th order. In particular, Magnuson had not yet provided responses to Appellees’ discovery requests and did not appear for his deposition on February 29 as ordered. Appellees sought monetary sanctions and the dismissal of Magnuson’s action with prejudice under rules 215.2 and 215.3 of the Texas Rules of Civil Procedure.1 In support of their request for a dismissal with prejudice, Appellees pointed to Mag-nuson’s “long history of filing frivolous pro se lawsuits which are ultimately dismissed.” Specifically, Appellees claimed that, in addition to the “obstructionist tactics” employed in the federal ease, Magnu-son has filed at least four other pro se lawsuits since 1992, all of which were dismissed for want of prosecution. Appellees argued that Magnuson’s conduct in the present case in refusing to provide discovery either upon Appellees’ request or upon

court order points to an “inescapable conclusion ... that [Magnuson’s] claims are baseless and without merit and this lawsuit was filed in bad faith.” A hearing on the motion for sanctions was set by fiat for March 28, 2000 at 2:00 p.m.

On March 23, 2000, the trial court heard evidence and arguments on Magnuson’s motion for extension of time, motion for rehearing, and motion to quash the February 18th order. Turner Keith Johnson, Magnuson’s chiropractor, testified concerning his treatment of Magnuson for headaches following the 1993 brain surgery and a herniated disk from the January 2000 car accident. Alfredo Alaniz, Magnuson’s roommate, testified that Mag-nuson was debilitated and heavily medicated in November 1999, as well as after the accident in January 2000. During Magnu-son’s examination of his third witness, a massage therapist, the trial court noted that the hearing had gone over the one-hour time period that had been allotted for it and would have to be reset to another date. Regarding Appellees’ motion for sanctions, the following exchange occurred between the trial court and counsel for Appellees, Dorothy Culham:

At that point, Magnuson requested a thirty-day continuance, which the trial court denied, stating: “I’m not going to do that. We’re going to need to conclude this matter, and it won’t be today.” The court then instructed the parties to visit the court coordinator, Kelly Smith, to obtain a new setting. As Smith was out of her office for the lunch hour, Appellees’ counsel told Magnuson that she would meet him back at Smith’s office at 1:45 p.m. to reschedule the hearing. Magnuson responded that he was not coming back and asked that the hearing be set in the afternoon. Counsel later accepted a 10:30 a.m. setting on the following day, March 24, and informed Magnuson of the setting via a message on his answering machine and a letter hand-delivered to his door at approximately 5:50 p.m. on March 23.

On March 24, 2000, the trial court resumed the hearing and, after noting Mag-nuson’s absence from the proceedings and inquiring as to Appellees’ efforts to notify him, made the following comments on the record:

At one point during the hearing, the court coordinator interrupted the proceedings and the following exchange occurred:

In his affidavit attached to Magnuson’s motion for new trial, Alaniz stated that he contacted Smith shortly after 9:00 a.m. on March 24 and left a voice mail message, advising her that Magnuson was unable to attend the 10:30 a.m. hearing because he was “physically debilitated,” stressed, in pain, and medicated. Alaniz also told Smith that Magnuson had a doctor’s appointment at 11:00 a.m. that morning. According to Alaniz, when Smith returned his call at approximately 9:30 a.m., she agreed to reschedule the hearing for Monday, March 27 at 9:00 a.m.

After hearing the arguments of counsel and Glasscock’s testimony concerning his repeated attempts to serve Magnuson with the February 18th order, the trial court granted Appellees motion for sanctions. In its final judgment, the trial court ordered that Magnuson take nothing by reason of his suit against Appellees and that such action be dismissed with prejudice. The trial court also ordered that Magnu-son pay all costs of court to Appellees as well an additional $500 for Appellees’ costs in bringing the motion for sanctions.

ISSUES PRESENTED

Magnuson raises ten issues challenging the dismissal of his suit, contending:

(9) the trial court abused its discretion in refusing to set Magnusoris motion for continuance for a hearing; and

In his first four issues, Magnu-son challenges the trial court’s imposition of discovery sanctions. In his first issue, Magnuson contends that the trial court violated his rights to procedural due process under the Fourteenth Amendment to the United States Constitution by dismissing his claims with prejudice and imposing monetary sanctions without affording him the opportunity to be heard. Magnuson argues that the trial court “abused its discretion in conducting the hearing when it did,” because he was not given a “reasonable and adequate opportunity to object or prepare a response” to Appellees’ motion for sanctions, obtain witnesses to testify at the hearing, prepare and present arguments, or nonsuit his claims as a defensive measure. In his second issue, Magnuson insists that he did not receive adequate notice of the hearing under rule 21 of the Texas Rules of Civil Procedure.2

The imposition of discovery sanctions is limited by constitutional due process.3 Due process requires that a party be given an adequate opportunity to be heard in sanction proceedings.4 Thus, the traditional due process protections of notice and hearing are also necessary before imposition of sanctions.5 Rule 21 of the rules of civil procedure provides:

At the outset, we note that Appellees’ motion for sanctions includes a fiat signed by the trial judge indicating that the motion would be heard on March 23, 2000. It is undisputed by Magnuson that he received service of the motion and notice of the hearing on March 1, 2000, as reflected in the certificate of service. The record does not, however, reflect that Magnuson filed a response to the motion, although he had ample opportunity to do so. In addition, we point out that Magnuson does not contend that he received inadequate notice of the hearing set for March 23. Rather, his complaint is that he was not properly notified when the hearing was reset to March 24. The record reveals that the hearing conducted on that date was a continuation of the hearing held on March 23, which could not be completed due to time constraints. Magnuson had been notified that Appellees’ motion for sanctions was to be heard on March 23, although there appeared to be some confusion as to what time the hearing was scheduled on the trial court’s docket. Magnuson acknowledges that he received notice of the March 24th hearing through a message on his answering machine and a letter from Ap-

pellees’ counsel posted to Ms door on the evening of March 23. He complains, however, that he was not given three days’ notice of the hearing, as required by rule 21.

For guidance, we look to cases evaluating complaints of improper and untimely notice of hearings on motions for summary judgment. Rule 166a of the rules of civil procedure requires that the motion and any supporting affidavits shall be filed and served at least twenty-one days before the time specified for hearing.7 In this context, courts have held that the twenty-one day requirement for notice of hearing does not apply to a resetting of the hearing, provided the nonmovant received notice twenty-one days before the original hearing.8 The reasoning behind the twenty-one day requirement in rule 166a(c) is to give the nonmovant sufficient time to prepare and file a response for the original setting.9 By rescheduling a hearing, the movant is actually giving the non-movant additional time to respond.10 Therefore, a party need only give reasonable notice that a hearing on a motion for summary judgment has been rescheduled.11 In International Insurance Co. v. Herman G. West, Inc., this court stated: “After a party has been served with notice of a motion for summary judgment in one term of court the motion may be heard at the later term without service of another notice. All that is required is reasonable notice of the hearing thereon.”12 We defined reasonable notice in International Insurance to mean at least seven days before the hearing on the motion, reasoning that a nonmovant may only file a response to a motion for summary judgment no later than seven days prior to the hearing.13

Rule 21 requires that a party be afforded at least three days’ notice of a hearing date.14 Here, Magnuson received approximately three weeks’ notice of the March 23rd hearing on Appellees’ motion for sanctions. We hold that the three-day notice requirement did not apply when the March 23rd hearing was reset to March 24. Additionally, we note that another basis exists for our conclusion that Mag-nuson received adequate notice. Rule 21 authorizes the trial court to shorten the required notice period.15 A trial court’s action in conducting a hearing on a motion before the three-day notice period has expired will not be disturbed on appeal absent an abuse of discretion.16 In exercising its discretion to shorten the rule 21 notice period, the trial court is free to examine and determine the exigent circumstances present in each particular case.17 The court in the instant case instructed the parties to reschedule the

March 23rd hearing to another time as close to the trial setting as possible. The trial was set to commence on Tuesday, March 28, 2000. With only two business days remaining before the trial date, we cannot conclude that the trial court abused its discretion in hearing Appellees’ motion for sanctions on Friday, March 24. We overrule Magnuson’s first two issues.

In his third issue, Magnuson contends that the trial court abused its discretion in granting Appellees’ motion for sanctions before completing the hearing on Magnuson’s motion for extension of time, motion for rehearing, and motion to quash the February 18th order. We disagree. As discussed previously, the trial court heard evidence and arguments regarding Magnuson’s motions on March 23. After the hearing exceeded the allotted time, the trial court interrupted Magnuson’s examination of his third witness and announced that the presentation of evidence would have to continue at a later date. When the hearing resumed on March 24, Magnuson was absent from the proceedings. Thus, the trial court appropriately took up Ap-pellees’ motion to dismiss and for sanctions, which had also been scheduled for a hearing on March 23 and continued to March 24. Furthermore, Magnuson does not challenge the trial court’s implied overruling of his motion for extension, motion to quash, and motion for rehearing by its granting of Appellees’ motion to dismiss. The record reflects that the lack of a complete hearing on Magnuson’s motions was due to his own failure to appear and present the remainder of his evidence to the trial court. Under these circumstances, we cannot perceive an abuse of discretion on the part of the trial court. We overrule Magnuson’s third issue.

In his fourth issue, Magnuson challenges the propriety of the trial court’s judgment dismissing his suit with prejudice and imposing monetary sanctions. Magnuson argues that the trial court’s imposition of the harshest of sanctions for the alleged discovery abuse was an abuse of discretion.

Discovery sanctions are authorized by rule 215 of the Texas Rules of Civil Procedure.18 Here, Appellees sought imposition of sanctions against Magnuson under rules 215.2(b)(5), 215.2(b)(8), and 215.3. Rule 215.2 provides in pertinent part:

other circumstances make an award of expenses unjust. Such an order shall be subject to review on appeal from the final judgment.19

Rule 215.8 provides:

A trial court’s decision to impose discovery sanctions is reviewed under an abuse of discretion standard.21 To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable.22 Merely because a trial court may decide a matter within its discretion in a different manner than an appellate court would in a similar circumstance does not demonstrate that an abuse of discretion has occurred.23 An abuse of discretion does not occur as long as some evidence of substantive and probative character exists to support the trial court’s decision.24

In Powell, the Texas Supreme Court outlined the limitations on a trial court’s power to sanction a party for discovery abuse:

Due process concerns mandate that the so-called “death penalty” sanctions be sparingly utilized.26 Discovery sanctions cannot be used to adjudicate the merits of a party’s claims or defenses un

less the party’s hindrance of the discovery process justifies a presumption that his claims or defenses lack merit.27 If a party refuses to produce material evidence, despite the imposition of lesser sanctions, the trial court may appropriately presume that an asserted claim or defense lacks merit and dispose of it accordingly.28 “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.”29

The trial court adopted the following pertinent findings of fact and conclusions of law, as proposed by Appellees:

reasonable, justified, and appropriate in this case because Plaintiffs conduct justifies the presumption that Plaintiffs claims lack merit and also because Plaintiff has exhibited flagrant bad faith.

After careful consideration of the record before' us, we cannot conclude that the trial court abused its discretion in dismissing Magnuson’s suit as a sanction for his abuse of the discovery process. We conclude that the circumstances of this case justify the extreme penalty imposed. Here, Magnu-son filed a lawsuit and persistently refused to provide disclosures, to answer requests for discovery, and to appear for his deposition. Moreover, there is no indication that Magnuson made any attempt to secure discovery from Appellees during the thirteen months his case was pending. Further, the record reveals that the trial court tested lesser sanctions by its February 18th order. In sum, Appellant’s refusal to cooperate with Appellees’ legitimate discovery requests as well as his own failure to actively pursue his claims justified an assumption on the part of the trial court that Magnuson “either had no claim or was dragging [his] feet in mustering evidence of one;” in other words, that Appellant’s claims lacked merit.30

Where, as here, a plaintiff files suit and then actively frustrates all legitimate attempts by a defendant to define the cause of action and investigate potential defenses, there is a direct relationship between the plaintiffs conduct and the trial court’s dismissal of the action.31 “A party who will not ‘play by the rules’ even after repeated orders to do so should not be allowed to play at all.”32 We also note that before Magnuson’s suit was dismissed on Friday, March 24, 2000, the case had been set on the trial court’s docket for the following Tuesday, March 28, although no discovery had been successfully conducted by either party. In addition, the trial court had before it evidence of similar conduct on the part of Magnuson in relation to the companion federal case as well as four other suits filed between 1992 and 1996 that were ultimately dismissed for want of prosecution. Having reviewed the entire record in light of the grave nature of the sanctions imposed and the limitations placed on a trial court’s ability to order such sanctions, we hold that the trial court did not abuse its discretion in dismissing Magnusoris claims with prejudice. We overrule his fourth issue.

In his fifth and sixth issues, Mag-nuson contends that the trial court failed to make reasonable accommodations in conformity with the ADA to enable him to attend the hearings on February 18, 2000 and March 24, 2000. Magnusoris contention is not properly before us. As Appel-lees’ point out, in the cases cited by Mag-nuson in support of his ADA claim, the plaintiffs filed lawsuits specifically naming the alleged discriminating courts or judges as defendants.33 Here, Magnuson appears to be asserting a cause of action directly against the trial court that has not been litigated on its merits. We decline to decide an issue on appeal that has not yet

been the subject of litigation in a trial court. Consequently, we overrule Appellant’s fifth and sixth issues.

In his seventh through tenth issues, Magnuson argues that the trial court abused its discretion in faffing to set his October 12, 1999 motion for enlargement of time and his February 18, 2000 motion for continuance for hearings and that the trial court’s refusal in this regard violated his rights under the United States and Texas Constitutions.

To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling, if they are not apparent from the context of the request, objection, or motion.34 If a party fails to do this, error is not preserved, and the complaint is waived.35 The objecting party must get a ruling from the trial court. This ruling can be either express or implied.36 If the trial judge refuses to rule, an objection to the refusal to rule is sufficient to preserve error.37 Even constitutional complaints may be waived if not properly presented to the trial court.38

After a careful review of the entire record, we conclude that Magnuson failed to preserve his constitutional challenges by presenting them in the trial court. Consequently, he has waived consideration of those issues on appeal. Additionally, the record reveals that Magnuson requested hearings on his motion for enlargement of time and motion for continuance only if such hearings were required. Magnuson did not raise in the trial court the complaints he now urges on appeal concerning the trial court’s failure to set his motions for hearing. Accordingly, he has failed to properly preserve error. We overrule issues seven, eight, nine, and ten.

CONCLUSION

Having overruled all of Appellant’s issues on appeal, we affirm the trial court’s judgment.