Practitioners will want to take note of this recent opinion from the Dallas Court of Appeals.

In a split decision in Davis v. Rupe, the court affirmed a sanctions order against an attorney based upon the trial court’s inherent power to sanction.  Because the trial court did not issue findings of fact to support its order (an omission that the dissenting judge looked on with disfavor), the court had to consider all grounds on which the trial court might have based its decision.   The majority recited three grounds, each of which provides some interesting dynamics.

The first ground relates to an alleged misrepresentation by defense counsel as to post-verdict discussions with jurors.  The defendant filed a motion for new trial that sought a new trial based upon a series of questions by Plaintiffs’ counsel during the trial that injected racial prejudices into the trial.  At the hearing on the new trial motion, the trial judge turned his attention to the post-verdict contacts by defense counsel with the jurors.  According to the majority opinion (found at this link), defense counsel misrepresented to the trial court whether she had asked one juror if the reference to Koon Kreek Klub played a factor in the deliberations.  The dissenting opinion (found at this link) quotes the exchanges between the court and counsel verbatim and reaches a different conclusion.   You can compare the discussions and reach your own conclusions as to this ground.

The second ground relates to a disagreement over whether the defendant’s motion for summary judgment put the Plaintiffs on notice that the defendants were asserting a lack of capacity.    The majority finds that the defense counsel’s arguments about how the pleading should be interpreted for purposes of notice are misleading and support the sanctions order.  Practitioners should take note of this holding.  I’m not sure how you avoid a sanctions order in a similar scenario, but the holding is one that should not be taken lightly.

The final ground discussed relates to a representation by defense counsel to the court that a particular document had been produced.  Three days after the representation, defense counsel determined that the document had not in fact been produced, and she sent a letter to the trial court and opposing counsel in accordance with her ethical duty to correct her representation.  All to no avail.  The majority characterizes this last circumstance as part of a "pattern of misstating facts."

One question not addressed in either opinion, which may be the elephant in the room, is what happened to the motion for new trial and Plaintiff’s counsel’s elicitation of the racially charged testimony.  From what I can tell, it appears that a separately docketed appeal is pending in the court of appeals which may yet answer that question.