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DISPUTES | PRE-SUIT DISCOVERY | CHALLENGING DISCOVERY ORDERS BY MANDAMUS | DISCOVERY SANCTIONS |
THE DISCOVERY RULE |
DISCOVERY SANCTIONS
Under rule 215, the trial court has discretion to dismiss a case with prejudice when a party fails to
obey a court order to comply with proper discovery requests. See TEX. R. CIV. P. 215.2(b)(5). A
death penalty sanction “is of particular concern” because the trial court renders judgment without
addressing the merits of the case. Finley Oilwell Serv., Inc. v. Retamco Operating, Inc., 248 S.W.3d
314, 319 (Tex. App.—San Antonio 2007, pet. denied) (citing Hamill v. Level, 917 S.W.2d 15, 16 (Tex.
1996)). Accordingly, such sanctions must be reserved for circumstances in which a party has so
abused the rules of procedure, despite imposition of lesser sanctions, that the party’s position can be
presumed to lack merit and it would be unjust to permit the party to present the substance of that
position before the court. Id. (citing TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913,
918 (Tex. 1991)).
In evaluating whether sanctions are “just,” we consider (1) whether a direct relationship exists between
the offensive conduct, the offender, and the sanction imposed, and (2) whether the sanctions ordered
are excessive to punish the improper conduct. Scott Bader, Inc., 248 S.W.3d at 812 (citing
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, which includes securing compliance with
discovery rules, deterring other litigants from similar misconduct, and punishing any violators. Id. For
this reason, courts must consider less stringent sanctions and whether such lesser sanctions would
fully promote compliance. Id. (citing TransAmerican, 811 S.W.2d at 917; Cire, 134 S.W.3d at 839).
“Under this standard, the trial court need not test the effectiveness of each available lesser sanction
by actually imposing the lesser sanction on the party before issuing the death penalty; rather, the trial
court must analyze the available sanctions and offer a reasoned explanation as to the
appropriateness of the sanction imposed.” Cire, 134 S.W.3d at 840 (citing GTE Commc’ns Sys.
Corp. v. Tanner, 856 S.W.2d 725, 729 (Tex. 1993) (“[T]he record must reflect the trial court
considered the availability of lesser sanctions.”); Spohn Hosp. v. Mayer, 104 S.W.3d 878, 883 (Tex.
2003) (noting that the record should “contain some explanation of the appropriateness of the
sanctions imposed.”)).
HOUSTON COURT OF APPEALS CASES
In re Vossdale Townhouse Ass'n (Tex.App.- Houston [14th Dist.] Dec. 29, 2009)(Seymore)
(sanctions for discovery abuse, attorney disqualification not authorized as sanction, fundamental right to their
counsel of choice)(mandamus granted)
In the petition, relators ask this Court to compel the Honorable Mike Engelhart, presiding judge of the 151st
District Court of Harris County, to set aside his February 4, 2009 order removing relators’ attorney from
representation of them in the underlying case. We conditionally grant the petition, in part, and deny it, in part.
An order directing that counsel may no longer represent his clients in the subject litigation is not among those
sanctions enumerated in Rule 215.2(b).
GRANTED IN PART AND DENIED IN PART: Opinion by Justice Seymore
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-09-00723-CV In Re Vossdale Townhouse Association, Inc.; John B. Baird, as President of the Vossdale
Townhouse Association, Inc., and Individually; and Pauletta Gwen Holley Gilbert, as Secretary of the Vossdale
Townhouse Association, Inc., and Individually
Appeal from 151st District Court of Harris County
Trial Court Judge: Mike Engelhart
We review a trial court's ruling on a motion for sanctions for an abuse of discretion, which occurs where the
trial court acts arbitrarily or unreasonably and without reference to any guiding rules and principles. Cire v.
Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004). Striking a party's pleadings for discovery abuse is “the most
devastating" sanction a trial court may impose. Transamerican Natural Gas Corp. v. Powell, 811 S.W.2d 913,
917-18 (Tex. 1991). Therefore, such a sanction is not justified unless a party's hindrance of the discovery
process justifies a presumption that its claims or defenses lack merit. Id. at 918. “However, if a party refuses
to produce material evidence, despite the imposition of lesser sanctions, the trial court may presume that an
asserted claim or defense lacks merit and dispose of it." Cire, 134 S.W.3d at 839 (quoting Transamerican
Natural Gas Corp., 811 S.W.2d at 918).
Approx. $5,602 v. State of Texas (Tex.App.- Houston [14th Dist.] Jul. 2, 2009)(Yates)
(forfeiture proceeding)(discovery sanctions, death-penalty sanctions) (preservation of error for appeal)
AFFIRMED: Opinion by Justice Brock Yates
Before Justices Brock Yates, Guzman and Sullivan
14-08-00359-CV Approximately $5,602.00 v. The State of Texas
Appeal from 55th District Court of Harris County
Trial Court Judge: PUTNAM REITER
Before striking Gibbs's pleadings, the trial court's order on the first motion to compel warned Gibbs that his
pleadings might be stricken if he did not fully comply. Contrary to Gibbs's arguments on appeal, this warning
constituted the imposition of a lesser sanction. See Paradigm Oil, Inc. v. Retamco Op., Inc., 161 S.W.3d 531,
539 (Tex. App.- San Antonio 2004, pet. denied) (stating that order to compel joined with statement that
noncompliance with the order would result in dismissal constitutes the type of lesser sanction that must be
imposed prior to imposition of death penalty sanction); Andras v. Mem'l Hosp. Sys., 888 S.W.2d 567, 572 (Tex.
App.- Houston [1st Dist.] 1994, writ denied) (same); Wade, 2002 WL 1404713, at *4, 5 (stating that where
appellant refused to comply with trial court's first order to compel, which warned that his pleadings might be
stricken for failure to comply, record supported trial court's finding that lesser sanctions had been tested, and
subsequent death penalty sanctions were not unnecessarily severe). When Gibbs failed to comply with the
trial court's order in the face of this lesser sanction, the trial court did not abuse its discretion in striking his
pleadings and entering a default judgment against him. See Transamerican Natural Gas Corp., 811 S.W.2d at
918; Pryor v. State, No. 14-05-00411-CV, 2006 WL 1528963, at *2 (Tex. App.- Houston [14th Dist.] June 6,
2006, no pet.) (mem. op., not designated for publication). We overrule appellant's sole issue.
Having overruled appellant's sole issue, we affirm the trial court's judgment.
DISCOVERY SANCTIONS CASES FROM HOUSTON COURTS OF APPEALS
Mullins v. Briarwick Condo Owners Ass'n (Tex.App.- Houston [14th Dist.] Nov. 24, 2009)(Brown)
(premises liability, falling object) (hindrance of the discovery process justified a presumption her claims lacked
merit, the trial court did test and consider lesser sanctions, the sanction was not too severe given the
circumstances of the case, and the sanction was not based solely on litigant's failure to produce documents)
AFFIRMED: Opinion by Justice Brown
Before Justices Seymore, Brown and Sullivan
14-08-00129-CV Susan McGee Mullins v. Briarwick Condominium Owners Association, Inc and KRJ
Management, Inc
Appeal from 80th District Court of Harris County
Trial Court Judge: LYNN M. BRADSHAW-HULL
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