Russell Ray Pryor v. State of Texas ( 2006 )

Affirmed and Memorandum Opinion filed June 6, 2006

Affirmed and Memorandum Opinion filed June 6, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00411-CV

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RUSSELL RAY PRYOR, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 215th District Court

Harris County, Texas

Trial Court Cause No. 2004-14992

M E M O R A N D U M   O P I N I O N

The State of Texas brought suit to recover approximately $4,911.00, which it claimed was the fruit of criminal activity.  Russell Ray Pryor, appellant, opposed the State=s action, contending he owned the $4,911.00.  The State then sought discovery to ascertain the source of appellant=s money.  Appellant responded inadequately, even after sanctions, and the trial court ultimately struck appellant=s pleadings.  Appellant raises one issue claiming the trial court abused its discretion in striking his pleadings.  We affirm.

Factual and Procedural Background

The State initiated forfeiture proceedings to determine appellant=s interest in approximately $4,911.00.  As part of its suit, the State sought certain discovery including interrogatories, income tax returns, and bank statements.  Appellant inadequately responded to the requests and, on December 13, 2004, the trial court held a hearing on the deficient responses.  The trial court ordered appellant to provide adequate responses by December 20, 2004, instituted a one-hundred-dollar sanction, and warned that if responses were not adequate, the trial court would strike appellant=s pleadings. 

The trial court held another hearing on January 24, 2005.  At that hearing, it heard arguments concerning appellant=s responses.  Appellant did not produce the requested documents, did not give an adequate explanation for why he failed to produce them, attached only two affidavits that were non-responsive to many of the interrogatories, and did not swear to his answers.  In short, the answers were deficient.  Telling appellant=s counsel, AIt=s not your fault, sir.  You=re doing the very best you can.  It=s your client, Mr. Henderson, who is not following the law and is not responding as he should be[,]@ the trial court struck appellant=s pleadingsCso-called Adeath penalty sanctions.@ 

On appeal, appellant raises only one issue and alleges the trial court abused its discretion.  The State responds that appellant=s issue is waived and that, in any event, the trial court did not abuse its discretion.  We agree with both of the State=s arguments.

Analysis

I.        Waiver

To preserve error in a judgment, a party must apprise the trial court of its objection by a motion to amend or correct the judgment, a motion for new trial, or some other similar method.  Willis v. Willis, 826 S.W.2d 700, 702 (Tex. App.CHouston [14th Dist.] 1992, no writ); see also Wade v. Farmers Ins. Group, 14-01-00691-CV, 2002 WL 1404713, at *2 (Tex. App.CHouston [14th Dist.] June 27, 2002, no pet.) (not designated for publication) (holding that complaint regarding death penalty sanctions would be waived if not preserved with appropriate post-trial motion or some similar method).  Here, Pryor filed no such motion; neither did he utilize some similar procedural method to preserve his issue for review. As such, it is waived.  However, even were we to consider the issue on the merits, he would not prevail.

II.       Trial Court Did not Abuse Its Discretion

Striking a party=s pleadings for discovery abuse is Athe most devastating@ sanction a trial court may impose.  Transamerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917B18 (Tex. 1991).  Therefore, discovery sanctions may not justify striking pleadings unless a party=s hindrance of the discovery process justifies a presumption that its claims or defenses lack merit.  Id. at 918.  If a party refuses to produce material evidence, despite imposition of lesser sanctions, the trial court may presume that an asserted claim or defense lacks merit. Id.  Such is the case here.

The trial court instituted two lesser sanctions before striking appellant=s pleadings.  First, it imposed a one-hundred-dollar sanction, and second it warned that appellant=s pleadings would be struck if he did not provide adequate responses.  See Greer v. Martinez-Greer, 14-00-00272-CV, 2001 WL 1340357, at *5 (Tex. App.CHouston [14th Dist.] November 1, 2001, no pet.) (not designated for publication) (stating that an order to compel with a warning that a failure to comply will result in trial court striking pleadings has been held to be in itself a lesser sanction).  When Pryor refused to comply with the trial court=s order, in the face of lesser sanctions including a warning, the trial court did not abuse its discretion in striking his pleadings.

Conclusion

Having overruled appellant=s sole issue, we affirm the judgment of the trial court.

/s/      Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed June 6, 2006.

Panel consists of Justices Hudson, Fowler, and Seymore.