                                MEMORANDUM OPINION
                                       No. 04-07-00532-CV

                                    Marzouq ABDELRAZZAQ,
                                            Appellant

                                                 v.

                                  Maria Del Carmen ALJARAD,
                                            Appellee

                     From the County Court at Law No. 7, Bexar County, Texas
                                     Trial Court No. 316435
                              Honorable Irene Rios, Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Alma L. López, Chief Justice
                  Phylis J. Speedlin, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: October 15, 2008

SANCTION ORDER VACATED; REVERSED AND REMANDED

           This appeal arises out of a dissolution of a partnership. We vacate the trial court’s

sanction order, reverse the trial court’s judgment, and remand to the trial court for further

proceedings.

                                      FACTUAL BACKGROUND

           Appellee Maria del Carmen Aljarad and her husband Ahmad Aljarad entered into a

partnership agreement with Appellant Marzouq Abdelrazzaq to jointly sell used cars. Ahmad’s

main role in the partnership was to contribute capital, while Marzouq operated the business.
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Maria was a partner by virtue of Ahmad’s involvement and apparently did not participate in the

running of the business.

         Shortly after the partnership began conducting business, Ahmad became concerned

because Marzouq had sold several cars, but apparently could not document those sales. The

parties’ relationship quickly deteriorated, and they agreed to dissolve the partnership.

Accordingly, the parties entered into an oral “buy-sell” agreement by which Marzouq agreed to

purchase the Aljarads’ partnership interest for approximately $67,000.00 (the approximate

amount of Ahmad’s capital contribution).

B.       Course of Proceedings

         1.       Claim and Counterclaim

         Claiming that Marzouq breached the buy-sell agreement, Maria filed suit against

Marzouq. She obtained a temporary injunction restraining Marzouq from a variety of business

dealings, and sought a judgment for the remaining amount allegedly owed to her pursuant to the

buy-sell agreement. Ahmad was not a party to Maria’s action against Marzouq.

         Marzouq answered that he fully performed under the agreement.                               He later filed

counterclaims against both Maria and Ahmad seeking an accounting and asserting breach of

contract and breach of fiduciary duty claims. 1

         2.       Discovery and Motion for Sanctions

         At a hearing on August 15, 2006, the parties agreed to exchange and expedite discovery

as well as the trial setting. Specifically, the parties agreed to exchange bank statements and



1
  Ahmad is not listed in the style of Marzouq’s notice of appeal. However, Marzouq seeks reinstatement of his
counterclaims against Ahmad and Maria and identified Ahmad as a party in his brief. Ahmad is, therefore, a party
to this appeal. See TEX. R. APP. P. 25.1(b) (“The filing of a notice of appeal by any party invokes the appellate
court’s jurisdiction over all parties to the trial court’s judgment or order appealed from.”); Dayra, Inc. v. Christian,
251 S.W.3d 227, 232 (Tex. App.—Dallas 2008, no pet.). Accordingly, while the style of this appeal does not reflect
Ahmad’s status as a party, he is treated as one in this opinion and in the court’s judgment.


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Marzouq was to provide records supporting his contention that he worked on cars on behalf of

the partnership for which he was not compensated. At the hearing, Marzouq’s attorney informed

the court that Marzouq “no longer has access to some of the bank books where the parties

originally operated . . . and that’s going to be germane to whether my client is entitled to an

offset or not.”

         On August 31st, Maria served requests for production and interrogatories on Marzouq,

but Marzouq failed to respond by the agreed deadline of September 14th. On September 25th,

Maria filed a motion to compel and a motion for sanctions. The hearing was set on September

28th, but later reset to October 5th. Marzouq served a response to the discovery requests on

October 5th, which included some responsive documents.                       According to Maria’s counsel,

Marzouq provided documents, but they were not what counsel requested. The October 5th

hearing was reset first to October 6th, and then to October 19th.                   There is no record of any

hearing on the motion to compel or the motion for sanctions, except the hearing of October 19th

when Marzouq’s counterclaim was stricken based on discovery abuse.

         At the hearing on the motion to compel production and for discovery sanctions, no

witnesses testified, the requests for discovery were not introduced, and the hearing consisted of

attorney argument. Maria’s attorney asserted that Marzouq failed to produce all responsive

documents. He specifically stated that he needed an accounting on the cars that were purchased

and sold and the copies of slips that would show what work was performed on the car to support

Marzouq’s offset claim. Maria’s counsel reminded the trial court of their prior appearances

before the court and the failed promises to produce documents. 2 Apparently based on his prior

dealings with Marzouq, Maria’s attorney declared that he did not believe Marzouq would comply

2
  According to counsel’s recitation at the hearing, the court heard substantive argument about the lack of production
during the resetting of the motions. However, there is no record of any such hearings and the docket entry simply
reflects a resetting.


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with any court order to produce documents. Maria requested the trial court strike Marzouq’s

counterclaim and enter an order that Marzouq would not be permitted to use any documents or

information at trial that had not already been provided to her.

        Immediately following Maria’s counsel’s argument, the trial court granted the sanctions.

Recognizing that she had failed to allow a response from Marzouq, she asked Marzouq’s counsel

if he wanted to say anything. In a very brief response, Marzouq’s attorney asked the trial court

“to exercise your discretion favorable on behalf of my client, defendant, and give him additional

time to comply. I think he has made [a] reasonable attempt to comply, but I ask the Court, once

again, to exercise its [discretion] favorably.” Marzouq’s attorney stated his belief that “if you

[the trial court] don’t allow [Marzouq] the time to get him any documents and you strike his

documents, then basically we don’t really have a case.”

        3.      The Sanctions Order

        At the conclusion of the hearing, the trial court announced that it would grant the motion

to compel production and for discovery sanctions. Two weeks later, on the date of trial, the trial

court signed an “Order Granting Sanction.” This order included a finding that Marzouq had

twice before assured the court during hearings that he would comply with the discovery requests,

even though the record contains no transcript of any such hearing. The order also recited that

Marzouq failed to comply with the court’s discovery orders, even though the record contains no

court orders regarding discovery other than the Order Granting Sanction. The order further

stated that striking Marzouq’s counterclaim and limiting his presentation of evidence at trial

were “the least restrictive sanctions under the circumstances that would allow [Marzouq] to

participate in the trial of this case, and protect the parties’ legal rights.”




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       4.      Trial and Post-Trial

       The parties proceeded to a bench trial. The trial court later signed a judgment in Maria’s

favor awarding her $41,973.10 in money damages for Marzouq’s breach of the buy-sell

agreement. The trial court also declared that the lease for the property where the partnership

conducted business, was not a partnership asset and awarded Maria. Finally, the court awarded

Maria $6,000.00 in attorneys’ fees. The trial court subsequently issued findings of fact and

conclusions of law in support of the judgment and denied Marzouq’s motion for new trial. This

appeal followed.

                                 DEATH PENALTY SANCTIONS

       We first address Marzouq’s allegation that the trial court abused its discretion in granting

“death penalty” sanctions based on lack of evidence in the record and the trial court’s failure to

consider lesser sanctions.

A.     Standard of Review

       A trial court’s sanctions order under Texas Rule of Civil Procedure 215.2(b) is reviewed

for abuse of discretion. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004). A trial court has

no discretion to impose sanctions in the absence of sufficient record evidence. Global Servs.,

Inc. v. Bianchi, 901 S.W.2d 934, 938 (Tex. 1995) (citing Chrysler Corp. v. Blackmon, 841

S.W.2d 844, 850 (Tex. 1992)). A party seeking sanctions on the grounds that the opposing party

has failed to produce documents within its possession, custody or control has the burden to

present evidence supporting such relief.     Global Servs., 901 S.W.2d at 937 (quoting GTE

Commc’ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 729 (Tex. 1993)).




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B.     Discovery Sanctions

       Courts recognize that, because direct evidence that a party has withheld documents is

seldom available, it may be difficult to prove that a party has withheld documents from

discovery. The complaining party may need “to rely entirely upon circumstantial evidence [b]ut

an imposition of sanctions cannot be based merely on a party’s bald assertions.” Global Servs.,

901 S.W.2d at 938; see also Butan Valley, N.V. v. Smith, 921 S.W.2d 822, 830 (Tex. App.—

Houston [14th Dist.] 1996, no writ).      The party seeking the sanction must prove, through

documentary or testimonial proof as opposed to mere argument of counsel, that the documents

exist and are within the opposing party’s possession, custody or control.           Butan Valley,

921 S.W.2d at 830 (citing Global Servs., 901 S.W.2d at 937, and GTE Commc’ns, 856 S.W.2d at

729). Findings of fact in a sanctions order that are not supported by record evidence should be

disregarded. See GTE Commc’ns, 856 S.W.2d at 729 (“[I]t is quite clear that from the record

before it the district court could not have found that GCSC had possession, custody or control

over the [allegedly unproduced document] . . . such that GCSC should have produced it.”

(emphasis added)).

       A sanction may not be excessive.         TransAmerican Natural Gas Corp. v. Powell,

811 S.W.2d 913, 917 (Tex. 1991). To ensure that a sanction is not excessive, trial courts “must

consider the availability of less stringent sanctions and whether such lesser sanctions would fully

promote compliance.” Id. “The record must reflect that the court considered the availability of

lesser sanctions.” GTE Commc’ns, 856 S.W.2d at 729.

       This is especially important when a trial court imposes so-called death penalty sanctions,

i.e., sanctions that are case-determinative. Spohn Hosp. v. Mayer, 104 S.W.3d 878, 882-83 (Tex.




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2003); Chrysler Corp., 841 S.W.2d at 849. Due process bars case-determinative sanctions, such

as an order striking pleadings, unless there is a showing of “flagrant bad faith or callous

disregard for the rules.” Wheeler v. Green, 157 S.W.3d 439, 443 (Tex. 2005). “Discovery

sanctions cannot be used to adjudicate the merits of a party’s claims or defenses unless a party’s

hindrance of the discovery process justifies a presumption that its claims or defenses lack merit.”

TransAmerican, 811 S.W.2d at 918; accord Cire, 134 S.W.3d at 838.

C.      Analysis

        The sanctions order in this case struck Marzouq’s counterclaims against Ahmad and

Maria. Because this death penalty sanction is not supported by any evidence in the record, the

trial court abused its discretion.

        1.      No Record Evidence.

        Marzouq argues that there is no evidence in the record to support the death penalty in the

sanctions order. We agree. First, Maria failed to offer her discovery requests and Marzouq’s

responses into evidence. Without record evidence of the information requested and what was

provided in response, there is no way to determine what documents would be responsive and

whether Marzouq complied with the discovery requests. See Global Servs., 901 S.W.2d at 937;

GTE Commc’ns, 856 S.W.2d at 729. Second, Maria produced no evidence that Marzouq had

possession, custody, or control of unproduced responsive documents. Id. This is particularly

important considering Marzouq’s counsel’s statement to the court at the initial hearing that

Marzouq might not have possession of all the requested records.             See GTE Commc’ns,

856 S.W.2d at 729. Finally, the sanctions hearing consisted solely of argument of counsel,

mostly by Maria’s attorney. See Global Servs., 901 S.W.2d at 938 (“[I]mposition of sanctions

cannot be based merely on a party’s bald assertions.”). Even if we regard Marzouq’s counsel’s




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request for additional time for his client “to comply” as an admission of failure to produce some

documents, there is no evidence of bad faith or callous disregard for the rules.          In fact,

Marzouq’s counsel stated: “I think he has made a reasonable attempt to comply.”

       It appears from the parties’ argument and the court’s swift action at the hearing and its

findings that there was some “history” to this discovery matter, but there is no record of that

history. The sanctions order contains findings that Marzouq had twice before failed to comply

with the trial court’s order to produce responsive documents. But these findings have no support

in the record; therefore, we must disregard them. See In re Carnival Corp., 193 S.W.3d 229, 237

(Tex. App.—Houston [1st Dist.] 2006, orig. proceeding) (disregarding the trial court’s

statements that Carnival’s conduct was “an ongoing issue and that the trial court had given

Carnival prior opportunities to provide proper discovery responses” where the record contained

no prior orders and no discussion of “the consideration of lesser sanctions or an explanation of

the appropriateness of [case-determinative] sanctions in the absence of prior orders”); Chrysler

Corp., 841 S.W.2d at 853 (“[F]indings must be pertinent to the TransAmerican standards and

supported by the record.”). Other than the October 19th hearing, the record is silent regarding

any additional hearings on Marzouq’s alleged discovery abuse or any written orders reflecting

prior attempts at or consideration of lesser sanctions. Contra In re Carnival, 193 S.W.3d at 237

(“[T]he record must reflect that the trial court considered the availability of appropriate lesser

sanctions and must contain an explanation of the appropriateness of the sanctions imposed.”

(emphasis added)).

       Because the record fails to reflect that Maria met her burden to establish flagrant bad

faith or callous disregard for the rules by Marzouq, the trial court abused its discretion in

imposing a death penalty sanction. Chrysler Corp., 841 S.W.2d at 853; see also In re U-Haul




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Int’l, Inc., 87 S.W.3d 653, 657 (Tex. App.—San Antonio 2002, orig. proceeding) (disapproving

a sanctions order where the plaintiff failed to establish that the complained of party was

responsible for failing to produce the responsive documents).

       2.       No Consideration of Lesser Sanctions.

       Death penalty sanctions are reserved for the most flagrant cases, where it can be fairly

inferred from a party’s discovery abuse that the party’s claims lack merit. Cire, 134 S.W.3d at

840-41 (stating that death penalty sanctions may be imposed without first testing lesser sanctions

only in “exceptional cases,” and concluding that such sanctions were warranted where the party

was ordered three times to produce a merits-determinative recording but instead of producing it,

destroyed it). Although the court and parties may have had other hearings on the matter, they are

not reflected in the record. We cannot say, therefore, on this record, that this is one of those few

“exceptional cases” where the trial court was justified in imposing a death penalty sanction

without     first   testing   lesser   sanctions.        See    id.;   Weinberger     v.   Longer,

222 S.W.3d 557, 569 (Tex. App.—Houston [14th Dist.] 2007, pet. denied).

                                           CONCLUSION

       The trial court abused its discretion in striking Marzouq’s counterclaims against Ahmad

and Maria without any evidence in the record to support such a sanction. Additionally, because

the issue of sanctions is dispositive of this appeal, we need not address the issues regarding the

trial court’s damage awards, the necessity of an accounting, and the segregation of attorneys’

fees. See TEX. R. APP. P. 47.1 (encouraging concise opinions addressing only those issues

“necessary to final disposition of the appeal”).




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       Therefore, the Order Granting Sanction is vacated, the trial court’s judgment is reversed,

and the case is remanded for further proceedings consistent with this opinion.




                                                 Rebecca Simmons, Justice




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