Sabrina K. Griggs, Trustee of the Gloria A. Griggs Revocable Living Trust v. Dalhart Butane & Equipment Co., Ltd., Etter Water Well, LLC, D/B/A Etter Water Well Service and Dale Ball ( 2019 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-17-00208-CV
SABRINA K. GRIGGS, TRUSTEE OF THE GLORIA A.
GRIGGS REVOCABLE LIVING TRUST, APPELLANT
V.
DALHART BUTANE & EQUIPMENT CO., LTD., ETTER WATER WELL, LLC,
D/B/A ETTER WATER WELL SERVICE AND DALE BALL, APPELLEES
On Appeal from the 84th District Court
Ochiltree County, Texas
Trial Court No. 14123, Honorable Curt Brancheau, Presiding
June 25, 2019
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PARKER, JJ.
Dalhart Butane & Equipment Company, Ltd. (DBE) sued Sabrina Griggs, trustee
of the Gloria A. Griggs Revocable Trust (Griggs), to foreclose a mechanic’s lien on trust
property. Griggs answered and filed a counterclaim. With leave of court Griggs joined
Etter Water Well Service, LLC and its employee or agent, Dale Ball, as third-party
defendants. Etter filed a counterclaim against Griggs. DBE’s claim against Griggs, and
Griggs’ counterclaim, were both resolved in favor of DBE through death-penalty sanctions
against Griggs for discovery abuse. Through a hybrid motion Etter and Ball obtained
summary judgment against Griggs on Griggs’ claim for damages and on Etter’s
counterclaim for damages. The court incorporated its rulings into a final judgment
resolving all claims. Griggs appeals. The judgment will be reversed in part and otherwise
affirmed.
Background
According to Griggs, DBE improperly drilled an irrigation well on trust property in
Ochiltree County, and did not complete the well on time, causing Griggs to lose a crop.
Griggs refused to pay DBE for its work, prompting DBE’s suit, and Griggs’ counterclaim.
DBE served Griggs with interrogatories and requests for production “concerning the
claims and damages alleged in” Griggs’ counterclaim. Following DBE’s motion to compel
and for attorney’s fees, on July 14, the court signed an order requiring Griggs to respond,
without objection, to DBE’s written discovery and within ten days pay DBE attorney’s fees
of $1,100. Griggs did not pay the $1,100.
Griggs served responses to DBE’s discovery requests but DBE believed them
inadequate. After July 29 correspondence to Griggs identifying the four specific
deficiencies it found in Griggs’ responses and demanding their correction, DBE filed a
second motion to compel and request for sanctions on August 26. The motion pointed
out that Griggs had not paid the $1,100 sanction ordered on July 14, and requested that
Griggs’ counterclaim be struck. In a written response, Griggs argued there could be no
consideration of lesser sanctions on submission only, that death-penalty sanctions could
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not be used to adjudicate the merits of a defense, and that she had named two experts
with written opinions disputing the adequacy of the well DBE drilled.
On November 21, the trial court conducted a short live hearing. The court heard
only from counsel. Counsel for DBE gave a brief assessment of the merits of the case
from DBE’s perspective. He asked to have Griggs’ counterclaim struck because she had
not provided evidence of damages and DBE’s liability. Counsel added that DBE did not
seek death-penalty sanctions on the entire case. Griggs could still “put on a defense to
our lien foreclosure case.” Besides requesting Griggs’ counterclaim be struck, DBE’s
counsel asked for a monetary sanction of $6,600 consisting of the yet unpaid $1,100
awarded on July 14, plus current attorney’s fees, and travel expenses.
On December 1, the court signed an order dismissing Griggs’ counterclaims with
prejudice and awarding DBE $6,600. It further ordered: “If [Griggs] fails to pay the above
specified sum to [DBE] within ten (10) days, then Final Judgment shall be entered in favor
of DBE and against [Griggs].”
On December 23, DBE filed its “motion for entry of final judgment.” It alleged
Griggs had not paid the $6,600 sanction awarded on December 1 and requested rendition
of a final judgment for damages, lien foreclosure, and attorney’s fees. On December 27,
the court signed an order granting all the relief requested by DBE. The record indicates
that in February 2017 Griggs deposited $6,600 in the registry of the court which DBE was
later permitted to withdraw.
Etter’s claim against Griggs alleged she did not fully pay Etter for drilling test wells.
Griggs’ pleadings alleged Etter was vicariously liable for DBE’s actions with regard to the
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well it drilled. Griggs alleged Etter thus was jointly and severally liable for the damage-
producing conduct of DBE.
Etter and Ball filed a hybrid motion for summary judgment on January 12, 2017.
In part, they alleged because Griggs’ claims against them were derivative of those against
DBE and because judgment was for DBE on the same claims, Griggs’ derivative claims
against Etter and Ball could not succeed as a matter of law. Concerning Griggs’ failure
to fully pay for test wells, Etter sought a money judgment and an award of attorney’s fees.
The court granted Etter’s motion for summary judgment in all respects and
rendered final judgment. This appeal followed.
Analysis
Issues One and Two: Sanctions
Through her first and second issues, Griggs challenges the justness of the trial
court’s December 1 sanctions order, striking her counterclaim, and the December 27
sanctions order, rendering judgment for DBE.
An appellate court reviews a trial court’s ruling on a motion for sanctions under an
abuse of discretion standard. Bodnow Corp. v. City of Hondo, 721 S.W.2d 839, 840 (Tex.
1986) (per curiam). A trial court abuses its discretion when it acts without reference to
any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d
238, 241 (Tex. 1985).
Sanctions for discovery abuse serve three legitimate purposes: to secure
compliance with the discovery rules; to deter other litigants from similar misconduct; and
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to punish violators. Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex. 1992) (orig.
proceeding). A sanction under Texas Rule of Civil Procedure 215 must be “just.” TEX. R.
CIV. P. 215.2(b); TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex.
1991) (orig. proceeding). A sanction’s justness depends on two factors. Chrysler Corp.,
841 S.W.2d at 849. “First, there must be a direct nexus among the offensive conduct, the
offender, and the sanction imposed.” Spohn Hosp. v. Mayer, 104 S.W.3d 878, 882 (Tex.
2003) (per curiam) (citing TransAmerican, 811 S.W.2d at 917). “A just sanction must be
directed against the abuse and toward remedying the prejudice caused to the innocent
party, and the sanction should be visited upon the offender.” Id. “The trial court must
attempt to determine whether the offensive conduct is attributable to counsel only, to the
party only, or to both.” Id. A trial court may not, however, impose a sanction that is more
severe than necessary to satisfy its legitimate purpose. Hamill v. Level, 917 S.W.2d 15,
16 (Tex. 1996) (per curiam).
“Second, just sanctions must not be excessive. The punishment should fit the
crime. A sanction imposed for discovery abuse should be no more severe than necessary
to satisfy its legitimate purpose.” TransAmerican, 811 S.W.2d at 917. “[C]ourts must
consider the availability of less stringent sanctions and whether such lesser sanctions
would fully promote compliance.” Id. A “death-penalty sanction” is any sanction that
adjudicates a claim and precludes presentation of the case on its merits. Davenport v.
Scheble, 201 S.W.3d 188, 193 (Tex. App.—Dallas 2006, pet. denied). Imposition of a
death-penalty sanction is especially concerning because in doing so a court renders
judgment without considering the case’s merits. Hamill, 917 S.W.2d at 16. In short, “[t]he
hallmarks of due process for sanctions awards are that they be just and not excessive.”
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Nath v. Tex. Children’s Hosp., 446 S.W.3d 355, 365 (Tex. 2014) (citing TransAmerican,
811 S.W.2d at 917).
Rule 215.2(b)(5) provides in instances where a party fails to comply with a
discovery order or request a trial court may render as a sanction an order “striking out
pleadings or parts thereof, staying the action until the order is obeyed, dismissing the
action with or without prejudice, or rendering judgment by default against the disobedient
party.” TEX. R. CIV. P. 215.2(b)(5). “When a trial court strikes a party’s pleadings and
dismisses its action or renders a default judgment against it for abuse of the discovery
process, the court adjudicates the party’s claims without regard to their merits but based
instead upon the parties’ conduct of discovery.” TransAmerican, 811 S.W.2d at 918.
The Constitution limits a court’s power to dismiss a case without giving a party the
opportunity for a hearing on the merits of its cause. Id. Accordingly, death-penalty
sanctions “should not be assessed absent a party’s flagrant bad faith or counsel’s callous
disregard for the responsibilities of discovery under the rules.” TransAmerican, 811
S.W.2d at 918. And due process compels that a death-penalty sanction may not be used
to adjudicate the merits of a claim or defense unless the offending party’s conduct during
discovery justifies a presumption that her claims or defenses lack merit. Paradigm Oil,
Inc. v. Retamco Operating, Inc., 372 S.W.3d 177, 184 (Tex. 2012) (citing TransAmerican,
811 S.W.2d at 918). “However, if a party refuses to produce material evidence, despite
the imposition of lesser sanctions, the court may presume that an asserted claim or
defense lacks merit and dispose of it.” TransAmerican, 811 S.W.2d at 918.
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Before imposing a death-penalty sanction, a trial court must first consider the
availability of less stringent sanctions and whether a lesser sanction would adequately
promote compliance, deterrence, and punishment of the offender. Chrysler Corp., 841
S.W.2d at 849; TransAmerican, 811 S.W.2d at 917.
The record in such cases must demonstrate the trial court’s consideration of less
stringent sanctions, and in all but the most exceptional cases, that the court tested a less
stringent sanction before striking the offending party’s pleading. Cire v. Cummings, 134
S.W.3d 835, 842 (Tex. 2004); GTE Communications Sys. Corp. v. Tanner, 856 S.W.2d
725, 730 (Tex. 1993) (orig. proceeding). For that reason, “the record should contain some
explanation of the appropriateness of the sanctions imposed.” Spohn Hosp., 104 S.W.3d
at 883.
Issue One: December 1 Order
By her first issue, Griggs contends the court erred by striking her counterclaim
against DBE. We will overrule the issue.
At the November 21 hearing, DBE’s argument that Griggs had failed to comply
completely with the court’s July 14 order was not disputed. The discovery DBE sought
related directly to its defense of Griggs’ claims for damages allegedly caused by the
untimely completion of the well and its contamination. One topic addressed at the hearing
concerned whether Griggs’ failure to do so was attributable to Griggs or to conduct of her
counsel. From the presentations the court heard, it reasonably could have concluded the
fault lay with Griggs. The record reflects the required nexus among the offensive conduct,
the offender and the sanction. Spohn Hosp., 104 S.W.3d at 882.
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We find the court also could have determined Griggs’ failure to produce documents
supporting her crop damage claim justified a presumption that claim lacked merit. See
Paradigm Oil, 372 S.W.3d at 184; TransAmerican, 811 S.W.2d at 918; 5 Star Diamond,
LLC v. Singh, 369 S.W.3d 572, 578 (Tex. App.—Dallas 2012, no pet.) (discovery
sanctions may be used to adjudicate merits of a party’s claims only when the party’s
hindrance of the discovery process justifies a presumption that its claims lack merit) (citing
Cire, 134 S.W.3d at 841). Griggs’ pleadings alleged some twenty acres required
replanting because of the delayed completion of the well, and yielded only 60 bushels of
corn an acre compared with the 160-bushel yield of the balance of the quarter section.
She alleged a sales price of $3.89 per bushel, resulting, she alleged, in a $7,780 loss,
plus seed and planting expense. She further alleged she was unable to plant a crop on
another tract of 109 acres, resulting in the loss of 17,440 bushels, worth $67,841.60, for
a total loss for the 2015 crop year of $75,621.60. Griggs’ counsel agreed her pleadings
alleged a “specific crop loss by acre,” and that DBE had requested production of
documents typically used for proof of such claims, such as “the receipts for the other corn
that was harvested.” Counsel was able to express no reason for Griggs’ failure to produce
such common documents.
In a reply brief in this court, Griggs contends the court heard no evidence that she
possessed information she did not provide. See Tanner, 856 S.W.2d at 729 (when motion
for sanctions asserts respondent has failed to produce document within its possession,
custody or control, movant has burden to prove the assertion). We see no abuse of
discretion in the trial court’s implicit conclusion that a landowner engaged in farming of
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the scope Griggs alleged has within her possession, custody or control documents to
support an allegation she sold a corn crop for $3.89 per bushel.1
As for whether death-penalty sanctions were excessive, the determinative
question is whether a lesser sanction would have served the purposes of compliance,
deterrence, and punishment. TransAmerican, 811 S.W.2d at 917; 5 Star Diamond, LLC,
369 S.W.3d at 579. The court unsuccessfully attempted to secure Griggs’ compliance by
ordering responses and assessing a monetary sanction. The insufficiency of her
responses was, as we have noted, undisputed at the November 21 hearing.
The court heard also, without dispute, a recitation of DBE’s efforts to obtain the
documents, including letters to Griggs’ counsel; a response after DBE filed its first motion
to compel that produced “[not] much of anything”; the court’s grant of the first motion to
compel with monetary sanctions and responses ordered in ten days; additional
correspondence to counsel after the expiration of the ten days, resulting in a failed
promise of a response in a week; Griggs’ provision after DBE filed its second motion to
compel of “partial answers to interrogatories,” but nothing bearing on the “big loss” Griggs
claimed, the crop damage, or bearing on actual damage or contamination to the well.
Those claims were the foundation of Griggs’ counterclaim, and the focus of the discovery
dispute.
1 Griggs’ discovery responses reported both her original damage calculation,
contained in her pleadings, and a “[r]evised calculation, based on revised yield, based on
total acres in field that was planted deducting damaged acreage. 110 acres of irrigated
corn at 180 bu / acre = 19,800 bushels.”
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Discovery in the case was conducted under Level 2. TEX. R. CIV. P. 190.3. The
record contains no trial setting and there is no indication any oral depositions were
conducted. The first response date for written discovery was April 8, 2016, the deadline
for Griggs to respond to DBE’s interrogatories and requests for production. Thus the
discovery period in the case was to conclude on January 9, 2017.
By November 21, the allotted discovery period was almost completed. Griggs’
recalcitrance in answering what counsel agreed were “standard” discovery requests had
already, inordinately, consumed the time of the parties’ counsel and the trial court. As
against Griggs’ contention the court was required first to try some other avenue to secure
responses to “standard” written discovery requests bearing on her counterclaim, on the
record presented, we find the death-penalty sanction the court imposed on the
counterclaim against DBE through the December 1 order was not excessive. Because
the sanction imposed was directly related to Griggs’ improper conduct and was not
excessive, and because we presume by Griggs’ conduct her counterclaim lacked merit,
we overrule Griggs’ first issue.
Issue Two: Sanction Entering Judgment
By her second issue, Griggs argues the trial court erred by entering judgment in
DBE’s favor as a sanction for her failure to pay attorney’s fees awarded in its November
21 order. We agree, and will sustain the issue.
After Griggs filed a response opposing DBE’s second motion to compel, DBE filed
a reply that said the sanctions sought by the motion, which included striking Griggs’
counterclaim, “do not deprive Griggs of her opportunity to challenge DBE’s claims.
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Instead, DBE seeks to strike claims for which Griggs has refused to provide discovery
despite this Court’s order requiring her to do so.” At the outset of the November 21
hearing, DBE reiterated that intention, telling the court, “We’re not seeking death-penalty
sanctions on the entire case. They can still put on a defense to our lien foreclosure
case . . . .” After further discussions, the court granted DBE’s motion to strike Griggs’
counterclaim, ordered additional attorney’s fees and ordered Griggs’ defensive claims
struck if she failed to pay within ten days. Its written order specified that if Griggs failed
to pay $6,600 to DBE within ten days, judgment would be entered in DBE’s favor.
We are unable to square the court’s order with the requirements for such death-
penalty sanctions. The threatened sanction was not conditioned on a failure to provide
further needed discovery, but merely on the payment of $6,600. We cannot see how
Griggs’ failure to pay the ordered attorney’s fees gives rise to a presumption she had no
meritorious defense to DBE’s lien foreclosure action. See Hamill, 917 S.W.2d at 16 (trial
court may not use death-penalty sanction to deny a litigant a decision on the merits of the
case unless it finds the sanctioned party’s conduct justifies a presumption that its claims
or defenses lack merit); Khan v. Valliani, 439 S.W.3d 528, 535 (Tex. App.—Houston [14th
Dist.] 2014, no pet.) (finding litigant’s failure to pay $400 attorney’s fee revealed nothing
about the truth or merit of her claims). “Although punishment and deterrence are
legitimate purposes for sanctions, they do not justify trial by sanctions.” TransAmerican,
811 S.W.2d at 918 (citations omitted). We find the death-penalty sanction imposed to
grant DBE a judgment against Griggs constituted such a prohibited “trial by sanctions” in
this case, and thus was excessive.
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For those reasons, we find the trial court abused its discretion by entering judgment
for DBE as a sanction. We sustain Griggs’ second issue.
Issue Three
By her third issue, Griggs contends she is not estopped by the invited error doctrine
to challenge the court’s rulings striking her counterclaim against DBE and later granting
DBE a judgment on its claim. The issue anticipates a contention DBE brings in its brief
on appeal, asserting Griggs’ counsel suggested the relief contained in the December 1
order by his remarks at the November 21 hearing. Because we have found no abuse of
discretion in the court’s order striking Griggs’ counterclaim, we need not address invited
error with respect to that sanction. With regard to Griggs’ second issue challenging the
judgment granted DBE, we agree with Griggs the invited error doctrine has no application.
It is said in Texas law the invited error doctrine is “grounded in even justice and
dictated by common sense.” Neasbitt v. Warren, 22 S.W.3d 107, 112 (Tex. App.—Fort
Worth 2000, no pet.) (citing Ne. Tex. Motor Lines, Inc. v. Hodges, 138 Tex. 280, 158
S.W.2d 487, 487-88 (Tex. 1942)). The doctrine “applies to situations where a party
requests the court to make a specific ruling, then complains of that ruling on appeal.” In
re Dep’t of Family & Protective Servs., 273 S.W.3d 637, 646 (Tex. 2009) (orig.
proceeding) (citing Tittizer v. Union Gas Corp., 171 S.W.3d 857, 862 (Tex. 2005)).
Consequently, “a party cannot complain on appeal that the trial court took a specific action
that the complaining party requested.” Tittizer, 171 S.W.3d at 862; Dalworth Restoration,
Inc. v. Rife-Marshall, 433 S.W.3d 773, 787 (Tex. App.—Fort Worth 2014, pet. dism’d
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w.o.j.) (“The invited error doctrine prevents a party from asking for relief from the trial court
and later complaining on appeal that the trial court gave it”).
From our review of the record, we agree with Griggs that her trial-court lawyer
expressed frustration at the hearing over failures of communication from his client, but
did not invite the court to enter a final judgment against Griggs. With regard to the entry
of a final judgment in the event Griggs failed to pay the $6,600 ordered, counsel’s remarks
at most can be read to agree the court would have the authority to issue such a sanction.
Griggs’ written response to DBE’s second motion to compel pointed out she had named
two experts “with written opinions who dispute the adequacy of the well drilled by [DBE].”
She argued there was no basis to presume her defense to DBE’s claim lacked merit. In
short, the record does not show Griggs requested the court to enter judgment for DBE
against her if she did not timely pay the $6,600 attorney’s fees sanction. We sustain
Griggs’ third issue to the extent we conclude she is not estopped by the invited error
doctrine to challenge the December 27 order on appeal.
Issue Four: Summary Judgment
Through her fourth issue Griggs challenges the trial court’s grant of summary
judgment in favor of Etter and Ball on their traditional and no evidence motions, which
challenged Griggs’ third-party claims against them.
The standard and scope of review we apply on the appeal of no evidence and
traditional motions for summary judgment is settled and does not require elaboration.
Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017). We
review the grant of a summary judgment de novo. Valence Operating Co. v. Dorsett, 164
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S.W.3d 656, 661 (Tex. 2005). We take as true all evidence favorable to the nonmovant,
Binur v. Jacobo, 135 S.W.3d 646, 649 & n.3 (Tex. 2004), and draw every reasonable
inference and resolve all doubts in favor of the nonmovant. Cohen v. Landry’s Inc., 442
S.W.3d 818, 821 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (so holding).
In her live third-party complaint against Etter and Ball, Griggs alleged she “acquired
goods or services from B[a]ll and Etter Water Well Service by and through Dalhart Butane,
a subcontractor for Etter Water Well Service, which form the basis of her complaint
against B[a]ll and Etter Water Well Service herein.” And Etter was liable for the actions
of DBE under the doctrine of respondeat superior.
Griggs argues on appeal, “[u]pon reversal of the death penalty sanctions as prayed
for by Griggs, the grounds on which Etter moved for summary judgment would be invalid
and contested and should be remanded for trial.” Because we will affirm the trial court’s
dismissal with prejudice of Griggs’ counterclaims against DBE, the basis for Griggs’
argument fails. The trial court did not err in rendering summary judgment that Griggs take
nothing on her claims against Etter and Ball. Griggs’ fourth issue is overruled.
Conclusion
The provision of the trial court’s judgment dismissing Griggs’ counterclaim against
DBE is affirmed; all other relief granted in favor of DBE and against Griggs by the trial
court’s judgment is reversed, and DBE’s claims against Griggs are remanded to the trial
court for further proceedings. In all other respects, the trial court’s judgment is affirmed.
James T. Campbell
Justice
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