In the Interest of M.J.M., a Child
406 S.W.3d 292
Tex. App.2013Background
- Micah Morgan filed a suit to modify the parent–child relationship seeking exclusive designation of the primary residence for child M.J.M. (age ≥12).
- Over several months Micah repeatedly failed to comply with discovery: did not answer interrogatories, did not produce requested documents (though said they were at his lawyer’s office), and failed to appear at noticed depositions.
- Parties signed an agreed scheduling order requiring discovery responses by May 31, 2011, and setting Micah’s deposition for June 7; Micah’s motion for protective order was denied and he failed to appear for the June 7 deposition.
- Christine moved to strike Micah’s pleadings and dismiss his suit as sanctions for discovery abuse; at the August 19, 2011 hearing the trial court granted the motion, striking pleadings, barring all witnesses and evidence (including Micah), dismissing with prejudice, and awarding Christine $17,500 in expenses and fees.
- The record contained no indication the trial court tested or explained why lesser sanctions were inappropriate; Micah objected to fees beyond those tied to discovery abuse and sought an in-chambers interview of the child, but the court did not reach the merits.
- On appeal the Fourth Court of Appeals reversed and remanded, holding death-penalty sanctions require consideration (and ordinarily testing) of less stringent sanctions and that the judge-conduct complaint was not preserved.
Issues
| Issue | Plaintiff's Argument (Christine) | Defendant's Argument (Micah) | Held |
|---|---|---|---|
| Whether trial court could impose "death penalty" discovery sanctions (striking pleadings, barring witnesses/evidence, dismissing with prejudice) without first considering/testing lesser sanctions | Micah intentionally and blatantly refused discovery; severe sanctions appropriate | Trial court erred by imposing death-penalty sanctions without considering or testing lesser sanctions on the record | Reversed — court must consider and ordinarily test less stringent sanctions before imposing death-penalty sanctions |
| Whether Rule 193.6 justified exclusion of all evidence/witnesses and replacement of merits adjudication | Rule 193.6 permits excluding untimely disclosed material and witnesses, so sanctions were authorized | Sanctions exceeded Rule 193.6: court barred named party and all evidence, not just untimely material/witnesses | Reversed — sanctions went beyond Rule 193.6 and required Transamerican/Chrysler analysis |
| Whether trial judge’s remarks and conduct required reversal for lack of fair/impartial hearing | N/A (no contemporaneous objection) | Judge’s conduct prevented a fair, impartial hearing | Not reached on merits — complaint waived for failure to object/preserve in trial court |
| Whether award of all of Christine’s expenses, costs, and fees was proper when tied to dismissal as sanction | Fees awarded as part of sanctions for discovery abuse and dismissal | Monetary sanctions were assessed when court thought it was disposing of the entire suit and exceeded fees tied to discovery abuses | Reversed — monetary award tied to death-penalty sanction reversed along with striking/dismissal |
Key Cases Cited
- Chrysler Corp. v. Blackmon, 841 S.W.2d 844 (Tex. 1992) (sanctions must be just; punishment should fit the misconduct and lesser sanctions must be considered)
- Transamerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex. 1991) (death-penalty sanctions limited by due process and require consideration of lesser sanctions)
- Cire v. Cummings, 134 S.W.3d 835 (Tex. 2004) (trial court should, in most cases, test lesser sanctions before striking pleadings)
- GTE Commc’n Sys. Corp. v. Tanner, 856 S.W.2d 725 (Tex. 1993) (similar requirement to consider lesser sanctions; review standard)
- Paradigm Oil, Inc. v. Retamco Operating, Inc., 372 S.W.3d 177 (Tex. 2012) (death-penalty sanction cannot adjudicate merits absent discovery conduct justifying presumption of lack of merit)
- Spohn Hosp. v. Mayer, 104 S.W.3d 878 (Tex. 2003) (record should explain appropriateness of sanctions imposed)
- Davenport v. Scheble, 201 S.W.3d 188 (Tex. App.—Dallas 2006) (defines "death penalty" sanctions as those precluding presentation of merits)
- In re Bledsoe, 41 S.W.3d 807 (Tex. App.—Fort Worth 2001) (exclusion of evidence that prevents presentation of defenses may be tantamount to striking pleadings)
- Revco, D.S., Inc. v. Cooper, 873 S.W.2d 391 (Tex. App.—El Paso 1994) (exclusion of expert testimony can deprive party of meaningful trial, triggering death-penalty analysis)
- Welex v. Broom, 823 S.W.2d 704 (Tex. App.—San Antonio 1992) (reversing death-penalty sanctions where trial court failed to test or consider lesser sanctions)