                               Fourth Court of Appeals
                                      San Antonio, Texas
                                             OPINION
                                         No. 04-13-00791-CV

                          IN THE ESTATE OF Aminta PEREZ-MUZZA

                      From the County Court at Law No. 2, Webb County, Texas
                                Trial Court No. 2007PB7000089-L2
                               Honorable Jesus Garza, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: July 16, 2014

REVERSED AND REMANDED

           Veronica Peña appeals the trial court’s dismissal of her lawsuit contesting the will of

Aminta Perez-Muzza. The trial court dismissed the contest: (1) because Veronica lacked standing

to contest the will; and (2) to sanction Veronica for false statements she filed with the trial court

and this court. Because we conclude that neither ground warranted dismissal, we reverse the

judgment of the trial court and remand the cause for further proceedings.

                                            BACKGROUND

           Several months prior to her death in 2007, Perez-Muzza executed a will devising all of her

real and personal property to her nephew, Rolando Peña, and naming him the independent executor

of her estate. At the time of the will’s execution, Perez-Muzza also established a certificate of

deposit account, designating various “payable on death” beneficiaries, including Yolanda Cuellar
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and Veronica. 1 The trial court admitted the will for probate in 2007, and Veronica initiated the

instant suit contesting the will in 2009. The trial court dismissed the case for want of prosecution

in January 2011 and November 2011, and subsequently reinstated the case in both instances. In

February 2012, Veronica signed an affidavit stating: “I have never received any jewelry, much less

any jewelry from Rolando Peña acting as executor under a will whose existence he denied.” In

March 2012, the trial court again dismissed the case for want of prosecution. Veronica appealed

and this court reversed the dismissal and remanded the case, holding that the trial court failed to

provide Veronica with notice of the dismissal. See In the Estate of Perez-Muzza, No. 04-12-00178-

CV, 2013 WL 979128, at*1 (Tex. App.—San Antonio Mar. 13, 2013, no pet.) (mem. op.). In July

2013, Veronica testified in an oral deposition that, after Perez-Muzza’s death, Veronica received

some jewelry from Yolanda that had once belonged to Perez-Muzza. Rolando subsequently filed

a motion to dismiss the contest and the trial court conducted an evidentiary hearing. Veronica

appeared at the hearing only through her attorney. Thereafter, the trial court granted the motion

to dismiss and entered findings of fact and conclusions of law.

                                          STANDARD OF REVIEW

        We review a trial court’s findings of fact and conclusions of law following a bench trial

under the same standards we employ when reviewing a jury’s finding. Catalina v. Blasdel, 881

S.W.2d 295, 297 (Tex. 1994). When reviewing the sufficiency of the evidence supporting those

findings, “we do not serve as a fact finder, pass upon the credibility of witnesses, or substitute our

judgment for that of the trier of fact, even if there is conflicting evidence upon which a different

conclusion could be supported.” Hausman v. Hausman, 199 S.W.3d 38, 41 (Tex. App.—San

Antonio 2006, no pet.). A trial court’s conclusion of law presents a legal question that we review


1
 Yolanda is the aunt of both Perez-Muzza and Veronica. Both are relatives of Perez-Muzza on the maternal side of
her family.

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de novo. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). We will

uphold a conclusion of law on appeal if the judgment can be sustained on any legal theory

supported by the evidence. Miranda v. Byles, 390 S.W.3d 543, 553 (Tex. App.—Houston [1st

Dist.] 2012, pet. denied).

       We review a trial court’s imposition of sanctions for an abuse of discretion. Low v. Henry,

221 S.W.3d 609, 614 (Tex. 2007); Kings Park Apartments, Ltd. v. Nat’l Union Fire Ins. Co. of

Pittsburgh, Pa., 101 S.W.3d 525, 540 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). A trial

court abuses its discretion when it acts arbitrarily, unreasonably, or without reference to guiding

rules or principles. Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006). Our

review is not limited to evaluating the sufficiency of the evidence supporting the trial court’s

findings, “rather, we make an independent inquiry of the entire record to determine if the court

abused its discretion by imposing the sanction.” Scott Bader, Inc. v. Sandstone Prods., Inc., 248

S.W.3d 802, 812 (Tex. App.—Houston [1st Dist.] 2008, no pet.).

                                            STANDING

       The trial court granted Rolando’s motion to dismiss the contest after concluding that

Veronica lacked standing. Specifically, the trial court concluded that Veronica was estopped from

contesting the will because: (1) she accepted jewelry under the will; (2) she accepted cash under

the estate plan; and (3) she entered into an agreement with other estopped individuals.

       Any “person interested in an estate” has standing to contest a probate proceeding. TEX.

EST. CODE ANN. § 55.001 (West Pamph. 2013). A “person interested” is an “heir, devisee, spouse,

creditor, or any other having a property right in or claim against an estate being administered.” Id.

at § 22.018 (West Pamph. 2013). Under the equitable doctrine of estoppel, a “person interested”

lacks standing, however, if they have accepted benefits under the will. In re Estate of Davis, 870

S.W.2d 320, 322 (Tex. App.—Eastland 1994, no writ.). When raised, the issue of standing must
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be tried “separately and in advance of a trial of the issues affecting the validity of the will.” In re

Estate of Hill, 761 S.W.2d 527, 528 (Tex. App.—Amarillo 1988, no writ). It is well settled that

the contestant of a will bears the burden of proving his standing. Womble v. Atkins, 160 Tex. 368,

331 S.W.2d 297 (1960); Sheffield v. Scott, 620 S.W.2d 691, 693 (Tex. App.—Houston [14th Dist.]

1981, writ ref’d n.r.e.).

    A. Acceptance of Jewelry

        The trial court concluded that Veronica was estopped from challenging the will’s validity

because Veronica “accepted jewelry that passed under [Perez-Muzza’s will] and never returned

it.” The trial court found that Perez-Muzza owned valuable jewelry at the time of her death which

passed to Rolando under the general provisions of the will. The trial court found that before her

death, Perez-Muzza “expressed her wish that [Rolando] would give this jewelry to members of the

family.” Rolando testified that at some point after Perez-Muzza’s death, he gave some of the

jewelry to Perez-Muzza’s relatives, including Yolanda. Rolando did not give any jewelry to

Veronica. Although Veronica stated in her February 2012 affidavit that she had “never received

any jewelry,” she stated in her July 2013 deposition that she received some jewelry from Yolanda:

        Q: [Referring to the July 2012 affidavit], you said you never received any jewelry.
            We talked about that. Specifically, do you have any jewelry or have you ever
            had any jewelry that belonged to Aminta at any time?
        A: What I believe is that some jewelry belonged to my aunts, and that jewelry was
            given to them as gifts from Rolando because the jewelry belonged to Rolando,
            and that’s what I know. And then I was told that it was given to him by Aminta.
        Q: Okay. And I apologize, I think I was asking have you ever had any jewelry that
            belonged to Aminta?
        A: Prior to her death, I do not recall. After her death, I believe that there was some
            jewelry that were gifts to my aunts that belonged—that that jewelry belonged
            to them because it was given to them by Rolando as gifts and that it once
            belonged to Aminta.
        Q: Did you get any of it?
        A: Did I get any of what?
        Q: Of the jewelry.
        A: The jewelry that belonged to my aunts?
        Q: Yes.
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       A: The jewelry that belonged to my aunts, I received a necklace that was costume
           jewelry, yes. That belonged—that jewelry belonged to my aunts, Lichita and
           Yolanda.
       Q: When did you get that jewelry?
       A: I have no idea.
       Q: After Aminta died?
       A: Oh, that was after, several years I think, maybe several months, years. I’m not
           sure when.
                                                ...
       Q: And what did they tell you when they gave you the jewelry?
       A: That they had this jewelry and that they wanted us to have some jewelry that
           they had been given and so they gave it to us.
       Q: Explained it had been Aminta’s jewelry?
       A: I had already been told that some of the jewelry belonged to Aminta.

       On appeal, Veronica challenges the sufficiency of the evidence underlying the trial court’s

findings of fact related to the jewelry. Because the legal question presented here is whether

estoppel is applicable based on these facts, we will assume, without deciding, that the trial court’s

findings of fact are supported by sufficient evidence.

       “It is a fundamental rule of law that a person cannot take any beneficial interest under a

will and at the same time retain or claim any interest, even if well founded, which would defeat or

in any way prevent the full effect and operation of every part of the will.” Trevino v. Turcotte, 564

S.W.2d 682, 685–86 (Tex. 1978). This rule is based on “equity and public policy.” Id. at 689. “It

is designed to prevent one from embracing a beneficial interest devised to him under a will, and

then later asserting a challenge of the will inconsistent with the acceptance of benefits.” Id. Thus,

when a person accepts and retains property devised to him by a will, he may be estopped from

later contesting the will. See In re Estate of McDaniel, 935 S.W.2d 827, 829 (Tex. App.—

Texarkana 1996, writ denied). This is true regardless of whether the devisee had knowledge of

the legal effect of accepting benefits under the will. Id.

       When a devisee is estopped in this manner, courts also extend estoppel to persons who

succeed to an interest in the will through their status as an heir of the devisee. EUNICE L. ROSS &


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THOMAS J. REED, WILL CONTESTS § 3:14 (2d ed. 2014); see, e.g., Trevino, 564 S.W.2d at 687; see

also, e.g., Mansour v. Rabil, 177 S.E.2d 849, 857 (N.C. 1970). Thus, in Trevino, the Texas

Supreme Court imputed a devisee’s estoppel to persons who claimed standing in their capacity as

heirs of the devisee. 564 S.W.2d at 687. In that case, Sarita East died and left a will naming Edgar

Turcotte as independent executor of her estate. Id. at 684. Edgar was also a devisee of substantial

bequests under the will, which he accepted and possessed at the time of his subsequent death. Id.

at 684, 686. After Edgar’s death, his children, who were the sole devisees under his will, contested

East’s will. Id. at 684. The children, who were not heirs of East, argued they were “persons

interested” in the East estate as the sole devisees under Edgar’s will. Id. After determining that

Edgar’s acceptance of benefits under East’s will estopped him from contesting her will, the Court

held that Edgar’s acceptance was “binding upon [the children] in their capacity as heirs, legatees,

or personal representatives of [Edgar].” Id. at 687.

       Rolando argues that Trevino should be broadly interpreted to impute a devisee’s estoppel

to any person who accepts and retains property from the devisee which passed under the will.

Rolando’s position is consistent with the following conclusion of law of the trial court: “A person

who has accepted property that passed under a will may be estopped from challenging the will’s

validity if he or she obtained the property by an assignment or gift from a devisee or legatee under

the will.” (emphasis added). We can find no authority, however, to support such an expansive

interpretation of Trevino. The Trevino Court imputed Edgar’s estoppel to his children where their

only claim as “persons interested” in the East estate was by way of the property East devised to

Edgar. Id. at 684. Edgar’s children claimed an interest in the East estate by using the very property

that Edgar—and by extension, his estate—had already accepted and maintained for his beneficial

use. See id. at 686–87. Estoppel prevented Edgar’s estate from accepting a beneficial interest

under East’s will and at the same time seeking to defeat East’s will based on that interest. See id.
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Here, Veronica does not rely on the necklace to establish her standing to contest Perez-Muzza’s

will and Rolando does not dispute that Veronica is a “person interested” in the estate as an heir-at-

law of Perez-Muzza, notwithstanding her interest in the necklace.

       Moreover, a person cannot be said to have received property “under a will” merely because

the person obtained the property directly from a devisee of the will. Id. at 685. Even if estoppel

did arise in that instance, it would be tenuous—and would serve no equitable purpose—to further

impute that estoppel to subsequent transferees who accept property from the person who received

it from the devisee. Such is the instant case. Perez-Muzza devised the jewelry to Rolando, and he

gave the jewelry to Yolanda. Yolanda subsequently gave at least one piece of the jewelry to

Veronica. Even if the transfer from Rolando to Yolanda is considered under the will, the same

cannot be said of Yolanda’s subsequent transfer of the jewelry to Veronica. Accordingly, we hold

that Veronica’s receipt and possession of the jewelry from Yolanda did not estop her from

contesting the will.

   B. Acceptance of Certificate of Deposit Proceeds

       The trial court also concluded that Veronica was “further estopped from challenging the

validity of [Perez-Muzza’s will] because she accepted, and did not return, cash that belonged to

[Perez-Muzza] which was distributed to [Veronica] as part of [Perez-Muzza’s] estate plan.”

Rolando testified that shortly after Perez-Muzza executed the will, she established a certificate of

deposit account listing several family members, including Yolanda and Veronica, as “payable on

death” beneficiaries. Upon Perez-Muzza’s death, the funds were distributed to the beneficiaries.

Rolando argues that because these funds were distributed as part of Perez-Muzza’s “estate plan,”

Veronica should be estopped as though she took directly under the will. Veronica contends that

she should not be estopped because these funds were nontestamentary, and therefore, did not pass

to her under the will.
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          We agree with Veronica’s contention. A “payable on death” or “P.O.D.” account is an

account with a financial institution that is payable to one or more named payees upon the account

owner’s death. See Stauffer v. Henderson, 801 S.W.2d 858, 863 (Tex. 1990); TEX. EST. CODE

ANN. § 113.004(4) (West Pamph. 2013); TEX. EST. CODE ANN. § 113.001(5) (West Pamph. 2013).

The payment of account funds to the beneficiary of a P.O.D. account is considered a

nontestamentary transfer. TEX. EST. CODE ANN. § 111.052(b) (West Pamph. 2013); TEX. EST.

CODE ANN. § 113.158 (West Pamph. 2013). Proceeds from a nontestamentary transfer pass outside

of probate proceedings and the personal representative of the decedent’s estate has no authority

with respect to them. Irwin v. Irwin, 307 S.W.3d 383, 385 (Tex. App.—San Antonio 2009, pet.

denied). Additionally, no rights to the proceeds accrue to those who would take under the

decedent’s will or through the laws of intestacy. Id.

          We have found no authority imposing estoppel on a will contestant because the contestant

is also a beneficiary of nontestamentary assets. Estoppel applies only to those who “take any

beneficial interest under a will,” and nontestamentary assets necessarily do not pass “under a will.”

Trevino, 564 S.W.2d 685; see Gregory v. Rice, 678 S.W.2d 603, 608 (Tex. App.—Houston [14th

Dist.] 1984, writ ref’d n.r.e.). Rolando cites Teal v. Lakey, 181 S.W. 759 (Tex. Civ. App.—

Beaumont 1915, writ ref’d) to support his contention that a party’s acceptance of nontestamentary

property results in estoppel to contest a will. Teal, however, does not stand for that proposition.

In that case, the decedent deeded a parcel of land to one of her heirs prior to the decedent’s death.

181 S.W. at 761. After concluding that the transfer constituted an advancement of the decedent’s

estate, the court held that “estoppel” precluded the heir from claiming her intestate share of the

estate.     Id.   Because the decedent died intestate, the court’s holding did not concern

nontestamentary property passing under a will. Rather, it premised its decision on the doctrine of

advancement, which has no application when there is a will. Bailey v. Bailey, 212 S.W.2d 189,
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191 (Tex. Civ. App.—Waco 1948, writ ref’d); see TEX. EST. CODE ANN. § 201.151(a) (West

Pamph. 2013). Accordingly, we hold that Veronica is not estopped from contesting the will

because she retained nontestamentary assets from Perez-Muzza.

   C. Contingent Fee Agreement

       The trial court further found that Veronica, Yolanda, and other maternal relatives of Perez-

Muzza entered into an contingency fee agreement (Agreement) with Veronica’s attorney in which

the relatives agreed to share among themselves, in certain proportions, any recovery resulting from

a future settlement of the will contest. The trial court concluded that Yolanda was estopped by her

acceptance of cash, jewelry, and other property under the will, and that the Agreement “effected a

cross-conveyance of interests” among the parties, and “[b]ecause of the cross-conveyance of

interests in the will contest claim effected by the [Agreement], all the parties to that agreement

share in the estoppel” of Veronica and Yolanda. Citing Trevino, Rolando further argues that

Veronica is estopped by the agreement because it represents an attempt to circumvent Veronica’s

estoppel resulting from her acceptance of the jewelry and certificate of deposit proceeds.

       First, we can find no authority supporting the proposition that a person may be estopped

from contesting a will merely by being a party to an agreement with an individual who is estopped.

Second, Rolando’s reliance on Trevino is misplaced. After determining that Edgar’s children were

estopped from contesting East’s will, the Trevino Court further considered whether two of the

children, Robert and Patrick Turcotte, could nevertheless establish standing by purchasing

assignments in the East estate from East’s heirs with undisputed standing. Trevino, 564 S.W.2d

at 687. The Court observed that, ordinarily, an individual may establish standing to contest a will

by purchasing an assignment of interest in the estate from a party with standing; however, the

Court held that it would be “inequitable and unjust” to allow Robert and Patrick to establish

standing with the assignments when they were otherwise estopped by Edgar’s acceptance of
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benefits under East’s will. Id. at 687, 690. Therefore, the Court held that a person who is

personally estopped from contesting a will as a beneficiary of an estopped devisee may not

“unestop” himself by obtaining an interest in the estate by assignment from an heir with standing.

Id. at 688, 690.

       In this case, Veronica is not attempting to avoid estoppel and establish standing by

obtaining an assignment of an interest in Perez-Muzza’s estate. As discussed, Veronica bases her

claim of standing on her undisputed status as an heir-at-law of Perez-Muzza, not through any

assignment. Moreover, Veronica is not using the agreement to avoid estoppel because, as

discussed, she is not estopped from contesting the will by acceptance of the jewelry or certificate

of deposit assets. Accordingly, Veronica’s status as a party to the agreement does not result in

estoppel.

       Rolando further notes that Yolanda is estopped from contesting the will because she

accepted jewelry and property from Perez-Muzza’s estate. Rolando argues that it would be

“inequitable and unjust” to allow Yolanda to retain all of this property and at the same time gain a

share of the estate through the possible settlement contemplated by the Agreement.            Even

assuming, without deciding, that Yolanda is estopped in this regard, Yolanda is not a party to the

will contest, and her standing is not an issue in this appeal.

                                             SANCTIONS

       The trial court concluded that dismissal of Veronica’s contest, with prejudice, was

independently justified as a sanction under both Texas Rule of Civil Procedure 13 and the trial

court’s inherent power.     The trial court found that Veronica made “false, misleading, and

groundless statements” in the February 2012 affidavit, in a subsequent memorandum to the trial




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court, and in her later appellate brief to this court during the 2013 appeal. 2 The trial court

concluded that Veronica falsely stated in these documents that she had not received any jewelry

under the will, but later testified in her July 2013 deposition that she had received such jewelry.

         Texas Rule of Civil Procedure 13 authorizes a trial court to sanction an attorney or other

party for making a statement in a pleading, motion, or other paper, “which they know to be

groundless and false, for the purpose of securing a delay in the trial . . . .” TEX. R. CIV. P. 13. Rule

13 is applicable when a party files an affidavit with the court containing a materially false

statement. See Metzger v. Sebek, 892 S.W.2d 20, 53 (Tex. App.—Houston [1st Dist.] 1994, writ

denied). Upon determination that a party has violated Rule 13, the trial court may impose an

“appropriate” sanction, including dismissal of the action with prejudice. TEX. R. CIV. P. 13; TEX.

R. CIV. P. 215.2(b)(5).

         A trial court may also impose sanctions on a party pursuant to its inherent power. In re

Bennett, 960 S.W.2d 35, 40 (Tex. 1997) (orig. proceeding). “This inherent power exists to enable

a court to effectively perform its judicial functions and to protect its dignity, independence, and

integrity.” Union Carbide Corp. v. Martin, 349 S.W.3d 137, 147 (Tex. App.—Dallas 2011, no

pet.). This power is limited, however, “to the extent necessary to deter, alleviate, and counteract

bad faith abuse of the judicial process, such as any significant interference with the traditional core

functions” of the court. Kutch v. Del Mar College, 831 S.W.2d 506, 510 (Tex. App.—Corpus

Christi 1992, no writ.). The core functions of the court include “hearing evidence, deciding issues

of fact raised by the pleadings, deciding questions of law, rendering final judgments, and enforcing

judgments.” In re Tex. Dept. of Family & Protective Servs., 415 S.W.3d 522, 529 (Tex. App.—

Houston [1st Dist.] 2013, orig. proceeding). Thus, a trial court may, under its inherent power,


2
  We note, however, that the trial court lacked jurisdiction to enter sanctions related to a filing in this court. Johnson
v. Waters at Elm Creek, L.L.C., 416 S.W.3d 42, 50 (Tex. App.—San Antonio 2013, pet. denied).

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sanction a party who makes a false statement of material fact to the court. See Howell v. Tex.

Workers’ Comp. Comm’n, 143 S.W.3d 416, 448 (Tex. App.—Austin 2004, pet. denied).

       Under either source of authority, a trial court’s imposition of sanctions must be “just.” GTE

Commc’ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 731 (Tex. 1993) (determining whether a

sanction is “appropriate” under Rule 13 is equivalent to determining whether it is “just” under Rule

215); Shook v. Gilmore & Tatge Mfg. Co., 851 S.W.2d 887, 892 (Tex. App.—Waco 1993, writ

denied) (sanctions imposed under court’s inherent authority subject to Rule 215’s “just”

requirement). The imposition of sanctions is “just” if: (1) there is a direct relationship between

the offensive conduct and the sanction imposed; and (2) the sanctions are not excessive.

TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991). A sanction is not

excessive when it is “no more severe than necessary to satisfy its legitimate purposes.” Id. In

other words, “[t]he punishment should fit the crime.” Id. As part of this inquiry, the trial court

must “consider the availability of less stringent sanctions, and in all but the most exceptional cases,

actually test the lesser sanctions” before imposing them. Cire v. Cummings, 134 S.W.3d 835, 841

(Tex. 2004).

       For the purposes of appellate review, we assume without deciding that Veronica’s affidavit

and memorandum contained false statements concerning her receipt of the jewelry and that this

conduct is sanctionable under both Rule 13 and the trial court’s inherent power. We conclude,

however, that the imposition of such a severe sanction is not justified in this case. In addition to

being limited by the standards discussed above, a trial court’s discretion to impose sanctions is

further limited by constitutional due process. TransAmerican, 811 S.W.2d at 917. Due process

concerns are implicated when the trial court dismisses a party’s claim based on conduct during

discovery rather than on the claim’s merits. Id. at 918. This sanction is the “most devastating a

trial court can assess against a party.” Id. at 917–18. Commonly referred to as a “death-penalty
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sanction,” it is intended to be a “remedy of last resort.” Paradigm Oil, Inc. v. Retamco Operating,

Inc., 372 S.W.3d 177, 179 (Tex. 2012). Thus, a death-penalty sanction may not be assessed absent

the offending party’s “flagrant bad faith” or “callous disregard for the responsibilities of discovery

under the rules.” TransAmerican, 811 S.W.2d at 918. In addition, “a death-penalty sanction

cannot be used to adjudicate the merits of claims or defenses unless the offending party’s conduct

during discovery justifies a presumption that its claims or defenses lack merit.” Paradigm Oil,

372 S.W.3d at 184. “[E]ven if it is appropriate to use discovery sanctions to punish a litigant for

false statements (as distinguished from the more common varieties of discovery abuse), a court

may not impose death-penalty sanctions unless the circumstances warrant a presumption that the

plaintiff’s claims are wholly without merit.” Fletcher v. Blair, 874 S.W.2d 83, 86 (Tex. App.—

Austin 1994, writ denied).

       A presumption that a party’s claim lacks merit is not justified “when the party makes a

false statement about matters unrelated to the core elements of [the cause of action].” Id. Here,

the false statement in the affidavit concerns whether Veronica received any of the jewelry that

passed to Rolando under the will. This statement had no bearing on any material issue before the

trial court during the pretrial proceedings. Although the trial court found that Veronica used the

affidavit “as a means of providing false and misleading testimony to the [trial court] on the estoppel

issue,” we have held, as a matter of law, that the circumstances under which Veronica received the

jewelry do not result in estoppel or any other impediment to her standing. Accordingly, we hold

that the trial court’s imposition of the death-penalty sanction in this case was a violation of due

process. See id. (false statement regarding educational background did not warrant death-penalty

sanction where statement was immaterial to the relevant issues in the proceeding); see also Lanfear

v. Blackmon, 827 S.W.2d 87, 91 (Tex. App.—Corpus Christi 1992, orig. proceeding) (death-



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penalty sanction not justified where false statement not related to the central issues in the

proceeding).

        Moreover, the trial court failed to consider the availability of less stringent sanctions. To

ensure that sanctions are “just,” the trial court is required to consider “less stringent measures

before settling on severe sanctions.” Spohn Hosp. v. Mayer, 104 S.W.3d 878, 883 (Tex. 2003).

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 842. Unless the offending party’s

conduct is egregious, constituting a blatant disregard for the discovery process, the trial court is

required to “test the effectiveness of lesser sanctions by actually implementing and ordering each

sanction that would be appropriate to promote compliance with the trial court’s orders in the case.”

Id. Here, the trial court entered the following conclusion of law related to lesser sanctions:

        Based on the totality of the circumstances and the evidence, no lesser sanction that
        [sic] dismissal with prejudice would be sufficient to deter, alleviate, and counteract
        the bad faith abuse of the judicial process and the interference with core judicial
        functions that [Veronica] committed in this case.

        Other than this single sentence, the record is completely devoid of any indication that the

trial court considered a less stringent sanction. During the hearing on the motion to dismiss, the

trial court did not address the proposed sanctions. A conclusory statement that no lesser sanction

would be effective is not sufficient to constitute the required analysis of available sanctions and

the reasoned explanation of the sanction’s appropriateness. GTE Commc’ns Sys. Corp., 856

S.W.2d at 729; Shops at Legacy (Inland) Ltd. P’ship v. Fine Autographs & Memorabilia Retail

Stores, Inc., 418 S.W.3d 229, 234 (Tex. App.—Dallas 2013, no pet.). Although the trial court

found that it had previously dismissed the case on multiple occasions for want of prosecution,

those dismissals were not related to the offending conduct. Even when the offending party engages

in intentional and blatant discovery abuse, consideration of less stringent sanctions is still required.


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In re M.J.M., 406 S.W.3d 292, 298 (Tex. App.—San Antonio 2013, no pet.). Accordingly, the

trial court abused its discretion by dismissing the case as a sanction.

                                           CONCLUSION

       The trial court erred by dismissing Veronica’s will contest for lack of standing. The trial

court abused its discretion when it dismissed the contest as a sanction. The judgment of the trial

court is reversed and the cause is remanded to the trial court for further proceedings.


                                                   Catherine Stone, Chief Justice




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