Opinion filed November 3, 2011




                                            In The


   Eleventh Court of Appeals
                                         __________

                                    No. 11-09-00368-CV
                                        __________

        BIG COUNTRY ELECTRIC COOPERATIVE, INC., Appellant

                                               V.

                        MARGARET LOUISE HILL, Appellee


                           On Appeal from the 32nd District Court
                                     Fisher County, Texas
                                  Trial Court Cause No. 6042


                           MEMORANDUM                  OPINION
       This is an appeal from a judgment entered after the trial court imposed ―death penalty‖
sanctions for a discovery-related abuse. Plaintiff, Margaret Louise Hill, brought suit against Big
Country Electric Cooperative, Inc. for damages related to a fire allegedly caused by Big Country’s
negligence. Big Country timely filed an answer but subsequently failed to respond to Hill’s
request for production. Hill filed a motion to compel and later also filed a motion for sanctions.
The trial court granted Hill’s motion for sanctions, struck Big Country’s pleadings, and entered
judgment against Big Country in the amount of $148,350 for actual damages and $3,000 for
attorney’s fees, plus interest and court costs. We reverse and remand.
       On appeal, Big Country presents four issues challenging the sanctions and the judgment.
In the first issue, Big Country contends that the trial court abused its discretion in entering death
penalty sanctions because there was no evidence that the sanctionable conduct was attributable to
Big Country, because no lesser sanctions were considered, and because counsel for Big Country
was not aware of the problem until after the sanctions order was signed. In the second and third
issues, Big Country argues that the trial court abused its discretion in denying Big Country’s
motion for new trial. In the fourth issue, Big Country challenges the legal and factual sufficiency
of the evidence supporting the amount of damages.
       When the discovery process is abused, a trial court may order sanctions as provided for by
TEX. R. CIV. P. 215. Such sanctions are discretionary and are reviewed on appeal for an abuse of
discretion. Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006). 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, 241–42 (Tex. 1985). When imposing sanctions
for discovery abuses, a trial court must look to the Texas Rules of Civil Procedure for guiding rules
and principles. Id. at 242.
       Rule 215.2 requires that the sanction imposed be ―just.‖ See TransAmerican Natural Gas
Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991) (applying a former, similar version of Rule 215
that also required the sanction to be ―just‖). The court in TransAmerican set forth the following
standards as setting the bounds for permissible discretionary sanctions under Rule 215:
               In our view, whether an imposition of sanctions is just is measured by two
       standards. First, a direct relationship must exist between the offensive conduct
       and the sanction imposed. This means that a just sanction must be directed against
       the abuse and toward remedying the prejudice caused the innocent party. It also
       means that the sanction should be visited upon the offender. The trial court must
       at least attempt to determine whether the offensive conduct is attributable to
       counsel only, or to the party only, or to both. This we recognize will not be an easy
       matter in many instances. On the one hand, a lawyer cannot shield his client from
       sanctions; a party must bear some responsibility for its counsel’s discovery abuses
       when it is or should be aware of counsel’s conduct and the violation of discovery
       rules. On the other hand, a party should not be punished for counsel’s conduct in
       which it is not implicated apart from having entrusted to counsel its legal
       representation. The point is, the sanctions the trial court imposes must relate
       directly to the abuse found.




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                 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 purposes. It follows that courts must consider
         the availability of less stringent sanctions and whether such lesser sanctions would
         fully promote compliance.

Id. at 917. Death penalty sanctions should not be used to deny a trial on the merits unless the
guilty party’s conduct is so bad that it ―justifies a presumption that its claims or defenses lack
merit.‖ Hamill v. Level, 917 S.W.2d 15, 16 (Tex. 1996); Chrysler Corp. v. Blackmon, 841
S.W.2d 844, 850 (Tex. 1992); TransAmerican, 811 S.W.2d at 918.
         In reviewing an order imposing sanctions, we must independently review the entire record
and are not bound by the trial court’s findings of fact and conclusions of law. Am. Flood
Research, 192 S.W.3d at 583. The record in this case shows the following sequence of events.
Hill filed the petition on August 4, 2008. Big Country timely filed an answer on August 13, 2008.
On March 18, 2009, after seven months with no apparent activity in this case, Hill sent a request
for production of documents via certified mail to Big Country’s attorney of record, Robin M.
Green, at his firm’s address.1 After receiving no response to the request for production, Hill sent
two letters to Green and also attempted to reach Green by phone at his office number. Hill
ultimately filed a motion to compel on August 6, 2009, which was sent to Green via certified mail.
Hill notified Green by letter that a hearing was set on the motion to compel. Hill also attempted to
reach Green by phone but, again, was unable to get ―past [Green’s] secretary.‖ The trial court
held the hearing as scheduled on September 21, 2009. After Big Country and Green failed to file
a response or appear at the hearing, the trial court granted Hill’s motion to compel and ordered Big
Country to pay attorney’s fees of $1000 and to respond to the request for production by
October 25, 2009. On October 29, 2009, Hill filed a motion for sanctions because Big Country
still had not responded to the request for production or paid $1,000 as ordered by the trial court.
Again, Hill sent the motion for sanctions to Green via certified mail. No response to the motion
for sanctions was filed. On November 18, 2009, the trial court held a hearing, granted Hill’s
motion for sanctions, struck Big Country’s answer, determined that Big Country was wholly in



         1
           We note that Hill was represented by attorney H. Alan Carmichael. For simplicity in this opinion, we refer to actions
actually performed by Carmichael, such as sending notices to opposing counsel, as having been performed by ―Hill.‖

                                                               3
default, called the case for trial, and entered judgment against Big Country. Neither Big Country
nor Green were present at the November 18 proceedings.
       Big Country and Green each received notice of the judgment on December 21, 2009, as a
result of phone calls made by Hill. Big Country learned of the judgment when Hill contacted Big
Country directly in an effort to collect on the judgment. Big Country subsequently filed a motion
to vacate the judgment and grant a new trial, which the trial court denied. Although Green may
have had no personal knowledge of the discovery, the motion or order to compel, the motion for
sanctions, the sanctions hearing, or the judgment until December 21, Green’s legal assistant
apparently did. Green had delegated to his legal assistant the responsibilities of answering phone
calls, opening mail, relaying messages and mail, and calendaring deadlines.           Green’s legal
assistant was on vacation on December 21 and did not thereafter return to work or answer phone
calls made by Green. The record does not contain any explanation from Green’s legal assistant,
but Green testified that he was stunned by the actions of his legal assistant, that this case was not
the only matter that was mishandled by his assistant, and that he was not aware that any matter had
been mishandled until December 21.          The trial court found that Green’s legal assistant
deliberately and intentionally withheld documents and interfered with this case. The trial court
concluded that Green was professionally responsible for the actions of his legal assistant.
       Though Green may be responsible for the conduct of his legal assistant, Big Country is not.
The Texas Supreme Court has determined that, since sanctions should be imposed upon the
offender, a trial court must attempt to determine whether the offensive conduct is attributable to
counsel only, or to the party only, or to both. TransAmerican, 811 S.W.2d at 917. There is no
evidence that any discovery abuse was attributable to Big Country itself. Nothing in the record
indicates that Big Country was aware of the discovery request or that the failure to produce the
requested documents was in any way Big Country’s fault. Furthermore, the record from the
sanctions hearing does not indicate that the trial court attempted to determine whether the
offensive conduct was attributable to Big Country or only to Green. The trial court later learned
of the actions of Green’s legal assistant when Big Country filed a motion to vacate the judgment
and grant a new trial.
       The circumstances presented by this case are unusual, and we cannot fault Hill, who made
repeated attempts to contact Green, or the trial court, which was put in the position of determining

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sanctions without any response or appearance from the party to be sanctioned or from that party’s
attorney. However, because there is nothing in the record indicating that Big Country was aware
of or responsible for the sanctionable conduct, the imposition of death penalty sanctions against
Big Country was not just or appropriate and constituted an abuse of discretion. See
TransAmerican, 811 S.W.2d at 917–19; Zheng v. Bridgestone Firestone N. Am. Tire, L.L.C., 284
S.W.3d 890 (Tex. App.—Eastland 2009, no pet.); Leon’s Fine Foods of Tex., Inc. v. Merit Inv.
Partners, L.P., 160 S.W.3d 148 (Tex. App.—Eastland 2005, no pet.); see also Hamill, 917 S.W.2d
at 16. Consequently, we hold that the trial court abused its discretion in striking Big Country’s
pleadings and entering the resulting judgment. The first issue is sustained. Because the first
issue is dispositive of this appeal, we do not reach the remaining issues. TEX. R. APP. P. 47.1.
       The trial court’s November 18, 2009 order imposing sanctions and the judgment entered by
the trial court on the same date are reversed, and the cause is remanded for further proceedings.




                                                                             JIM R. WRIGHT
                                                                             CHIEF JUSTICE


November 3, 2011
Panel consists of: Wright, C.J.,
McCall, J., and Hill, J.2




       2
        John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.

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