      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-11-00420-CV



                                    David Penny, Appellant

                                                 v.

                         El Patio, LLC d/b/a El Patio Motel, Appellee


  FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT
        NO. B-09-0977-C, HONORABLE BEN WOODWARD, JUDGE PRESIDING



                                          OPINION


               David Penny appeals from a district-court judgment in favor of El Patio, LLC

on claims involving the alleged mismanagement of the El Patio Motel in San Angelo, Texas. In

three issues, Penny challenges the district court’s (1) denial of Penny’s motion to show authority,

(2) imposition of discovery sanctions striking Penny’s pleadings, and (3) award of joint and several

exemplary damages. For the reasons set forth below, we will reverse and remand the district court’s

award of exemplary damages, but affirm the remainder of the judgment.


                                           Background

               The underlying legal dispute began as a response to the non-judicial foreclosure of

the El Patio Motel under a deed of trust securing a $460,000 loan borrowed by the motel’s parent,

appellant El Patio, LLC. Specifically, LLC members Penny and Richard Cheroske filed suit against

the trustee of the sale, Richard Rauber (another LLC member), to invalidate the deed of trust and
set aside the foreclosure. But as occasionally happens, the scope of the underlying suit expanded

to include additional parties and claims that, although related in that they involved the alleged

mismanagement of the motel in the months before the foreclosure, soon overtook the foreclosure

itself. In fact, the foreclosure-related claims were resolved during the course of litigation, while

the claims involving the pre-foreclosure management of the motel survived and are the subject of

this appeal.

               At the outset, we will review the formation of the LLC and its purchase of the motel.

In 2003, several business investors—including, relevant here, Penny, Cheroske, Stephen Hyde, and

Rauber—formed the El Patio, LLC to purchase and own the El Patio Motel, a 100 room extended-

stay residence located in San Angelo, Texas. Hyde was named as the LLC’s operating manager, and

the LLC, in turn, hired Blue Castle Property Management, LLC to operate and manage the motel’s

day-to-day business, such as collecting rents, maintaining bank accounts and records, and paying

property and other expenses. Blue Castle was owned by 190 Orange Avenue, which itself was

separately owned by LLC members Penny and Cheroske. In 2004, LLC member Rauber loaned the

LLC $460,000 under a promissory note secured by a deed of trust in the motel, the same deed of trust

under which the motel was later foreclosed. In hopes of a picture saving a thousand words (or at

least making them easier to understand), the following is a general depiction of the relationship web

described above.




                                                 2
               In July 2009, after Blue Castle (in its management capacity) failed to make

consecutive loan payments on the $460,000 loan, Rauber foreclosed on the note and sold the

motel at a trustee’s sale. One month later, Penny and Cheroske filed the underlying suit—as a

derivative proceeding in their capacity as members of El Patio, LLC, see Tex. Bus. Orgs. Code

§§ 101.451–.463 (describing circumstances under which member owners of limited liability

corporation may maintain “civil suit in the right of a domestic limited liability company,” i.e.,

a “derivative proceeding”)—to challenge the foreclosure on the ground that the deed of trust securing

the loan was invalid. And soon thereafter, the LLC intervened in the foreclosure suit to assert several

third-party claims against Penny, Cheroske, Blue Castle, Blue Castle’s accountant, and 190 Orange

Avenue for conversion, theft liability, breach of fiduciary duty, breach of contract, fraud, negligent

misrepresentation, unjust enrichment, money had and received, and related declaratory and injunctive

relief regarding the management and occupation of the motel.




                                                  3
               Penny, Cheroske, and the other third-party defendants, believing that the LLC’s

attorney did not have the requisite authority under the entity’s governing documents to intervene on

behalf of the LLC, filed a Rule 12 motion with the district court that required the LLC’s attorney

to demonstrate to the court that he had the authority to prosecute the suit on the LLC’s behalf. See

Tex. R. Civ. P. 12 (“A party in a suit or proceeding pending in a court of this state may, by sworn

written motion stating that he believes the suit or proceeding is being prosecuted or defended without

authority, cause the attorney to be cited to appear before the court and show his authority to act.”).

After two hearings on the issue—the second in response to a motion by the third-party defendants

to set aside the district court’s first denial of their motion—the district court found that the LLC’s

attorney had the authority to prosecute the suit and denied the third-party defendants’ motion,

allowing the LLC’s third-party claims to continue.

               Eventually, after Rauber had resolved his claims with the third-party defendants and

agreed with the LLC to set aside the foreclosure, the only remaining claims were El Patio, LLC’s

claims against the third-party defendants. During the course of the litigation of these remaining

claims, the third-party defendants refused to respond to the LLC’s discovery requests and discovery-

related motions until—after issuing an injunction, granting several motions to compel, awarding

significant monetary sanctions, and repeatedly warning the third-party defendants about the

consequences of their continued failure to respond—the district court struck the third-party

defendants’ pleadings and awarded judgment to El Patio, LLC on all its claims. Ultimately,

following a trial on the damages issues only, the district court entered final judgment awarding

El Patio, LLC the declaratory and injunctive relief it had requested, as well as $302,591.47 in actual

damages, $419,506.86 in exemplary damages, pre- and post-judgment interest, and costs of court.

                                                  4
Relevant to an issue raised on appeal, the judgment made the third-party defendants jointly and

severally liable for the economic and exemplary damages, pre-judgment interest, and the costs of

court. It is from this final judgment that Penny appeals here.1


                                Rule 12 motion to show authority

               In his first issue, Penny challenges the district court’s denial of the third-party

defendants’ Rule 12 motion challenging the authority of David Mirazo (El Patio, LLC’s attorney)

to prosecute the LLC’s suit. See Tex. R. Civ. P. 12. Specifically, Penny asserts that the

district court’s denial was in error because Mirazo failed to introduce evidence establishing his

authority and, in the alternative, that Mirazo did not have the LLC’s authorization to litigate.

Because an attorney’s authority to file or maintain a suit is a question of law, we review a

district court’s decision on such a matter de novo. See State v. Evangelical Lutheran Good

Samaritan Soc’y, 981 S.W.2d 509, 511 (Tex. App.—Austin 1998, no pet.) (citing Gulf Reg’l Educ.

Television Affiliates v. University of Houston, 746 S.W.2d 803, 806 (Tex. App.—Houston

[14th Dist.] 1988, writ denied)); see also Metz v. Lake LBJ Mun. Util. Dist., No. 03–01–000312–CV,

2002 WL 31476887, at *4 (Tex. App.—Austin Nov. 7, 2002, no pet.) (mem. op., not designated

for publication).2

       1
         According to El Patio, LLC, various bankruptcy filings in California have left Penny as the
only party remaining in this matter.
       2
           The parties here insist that our standard of review on this motion is an abuse of discretion
as set forth in the supreme court’s opinion in Urbish v. 127th Judicial Dist. Court, 708 S.W.2d 429,
432 (Tex. 1986) (orig. proceeding), and in two opinions from our sister courts that likewise rely
on Urbish, In re Guardianship of Benavides, 403 S.W.3d 370, 373 (Tex. App.—San Antonio 2013,
pet. denied) (“Appellate courts review a trial court’s ruling on a motion to show authority for an
abuse of discretion.”) and R.H. v. Smith, 339 S.W.3d 756, 762 (Tex. App.—Dallas 2011, no pet.).
But a close reading of Urbish shows that it, at most, supports the application of an abuse-of-

                                                  5
                Penny and Cheroske’s Rule 12 motion asserted that Mirazo lacked authority because

he lacked the authorization from a majority of the members that is required by the LLC’s governing

documents. The LLC, offering an affidavit from Hyde and a copy of its operating agreement,

responded that Hyde, as operating manager, had the authority under the operating agreement to

hire an attorney to prosecute a suit on behalf of the LLC and, further, that more than 70% of

the ownership interest in the LLC had approved the LLC’s petition in intervention. See Tex. R. Civ.

P. 12 (“At the hearing on the motion, the burden of proof shall be upon the challenged attorney to

show sufficient authority to prosecute or defend the suit on behalf of the other party.”). After an

initial hearing on the issue, the district court found that Mirazo had authority to prosecute and denied

Penny and Cheroske’s motion. The district court later reaffirmed that finding and denied a second

motion on the issue after a hearing prompted by Penny and Cheroske’s allegations that they had been

denied the opportunity to present evidence and that Mirazo had presented no evidence that he was

authorized to prosecute El Patio, LLC’s suit.




discretion standard only where the court is otherwise obligated to consider the best-interests of the
party whose attorney is being challenged and the remedy sought is to replace the attorney, not strike
the pleadings as required under Rule 12. In Urbish, a father sought to replace his ex-wife as next
friend in their minor son’s personal-injury suit on the ground that she lacked authority under a
divorce decree, but the supreme court, emphasizing that “[w]hen minors sue, trial courts have the
responsibility to protect the minor’s best interest,” held that the trial court’s decision to deny motion
was not an abuse of its discretion because mother had authority when the suit was initiated, the
suit had been prosecuted two years, and because the father had not shown that the mother’s interests
were adverse to the minor’s. See Urbish, 708 S.W.2d at 431–32. Similarly, Benavides involved the
capacity to hire an attorney in a guardianship proceeding, see 403 S.W.3d at 376–77, and R.H.
addressed whether a minor’s next friend should be removed as his attorney and replaced with the
movant, see 339 S.W.3d at 762–63. Here, we have no best-interest consideration, only a question
of law under Rule 12. Thus, we follow this Court’s holding in Evangelical, 981 S.W.2d at 511.
Cf. Abbott v. G.G.E., No. 03–11–00338–CV, 2015 WL 1968262, at *5 (Tex. App.—Austin Apr. 30,
2015, no pet. h.) (using abuse-of-discretion standard because best interests at issue).

                                                   6
               On appeal, Penny argues initially that the district court erred in denying his motion

to show authority because Mirazo, El Patio, LLC’s attorney, had “introduced no evidence or

testimony at the hearing in support of his authority.” A cursory examination of the record shows that

this assertion lacks merit. El Patio, LLC’s response (and its response to the motion to set aside the

district court’s first denial of its Rule-12 motion) included an affidavit from Stephen Hyde in which

he averred that he had the authority to retain an attorney to prosecute El Patio, LLC’s claims because

he is the operating manager and the LLC’s operating agreement gives the operating manager “all

powers and rights necessary, proper, convenient, or advisable to effectuate and carry out the

purposes, business and objectives of the Company, and to maximize Company profits.” The LLC

also provided the district court with copies of its operating agreement, bank records, membership

assignments, and three written consents to litigation signed by certain member owners. And at the

second hearing on the attorney-authorization issue, the district court was presented with essentially

the same evidence, plus additional testimony from several live witnesses, including Hyde and

Mirazo. See Boudreau v. Federal Trust Bank, 115 S.W.3d 740, 742 (Tex. App.—Dallas 2003,

pet. denied) (holding that attorney satisfied Rule-12 burden with affidavit from bank’s vice

president); Spigener v. Wallis, 80 S.W.3d 174, 184 (Tex. App.—Waco 2002, no pet.) (attorney

satisfied Rule-12 burden with testimony and affidavit from clients).

               With regard to the merits of the authorization issue, Penny argues that the

district court should have granted the motion because Hyde’s position as operating manager of

El Patio, LLC did not vest him with the authority to hire Mirazo to prosecute El Patio, LLC’s

petition. Specifically, Penny contends that because the LLC’s operating agreement does not contain

express language authorizing litigation and because Hyde lacked specific approval from a majority

                                                  7
interest of the members to conduct the litigation, Hyde lacked the authority under Texas law. In

support of these assertions, Penny cites to what he describes as “a long line of Texas cases which

hold that in the absence of either board of director approval or express authorization in the bylaws

or by special board resolution, the officers of a corporation do not have authority to employ counsel

or initiate litigation.” See Square 67 Dev. Corp. v. Red Oak State Bank, 559 S.W.2d 136 (Tex. Civ.

App. Waco—1977, writ ref’d n.r.e.); Terrace Heights Owners Ass’n v. Corn, No. 05–92–02073–CV,

1993 WL 268912 (Tex. App.—Dallas, 1993, writ denied). We disagree.

               First, Penny’s interpretation of the LLC’s operating agreement—that it does not give

Hyde, as the operating manager, the authority to litigate on behalf of the LLC—conflicts with the

plain language of that document.3 The operating agreement’s provision regarding management of

the LLC, although it never references litigation, gives the operating manager sole and exclusive

control over the company’s business and grants to the operating manager all the powers and rights

needed to conduct that business:


               The Company shall be managed by the Operating Managers,
               who shall be paid a fee for serving as Operating Managers, and the
               conduct of the Company’s business shall be controlled and conducted


       3
           Under the well-known principles of contract construction, the primary objective in
construing a written agreement is to determine the intent of the parties as expressed in the
instrument. See J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003); National Union
Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995). In construing the agreement’s
language, we must apply the ordinary and generally accepted meanings of the words used unless the
contract indicates that the language used is intended to impart a technical or different meaning. See
American Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 158 (Tex. 2003). In addition, we must
give effect to all provisions so that none are rendered meaningless. Id. at 157. If the terms used in
the contract can be given a definite or certain legal meaning, the contract is unambiguous and
will be enforced as written. David J. Sacks, P.C. v. Haden, 266 S.W.3d 447, 451 (Tex. 2008); Coker
v. Coker, 650 S.W.2d 391, 394 (Tex. 1983).

                                                 8
                solely and exclusively by the Operating Managers in accordance with
                this Agreement. In addition to and not in limitation to any rights and
                power conferred by law or other provisions of this Agreement, the
                Operating Managers shall have and may exercise on behalf of the
                Company all powers and rights necessary, proper, convenient or
                advisable to effectuate and carry out the purposes, business and
                objectives of the Company, and to maximize Company profits.4


(Emphasis added.) Further, the agreement undisputedly names Hyde as the LLC’s operating

manager: “Management of the Company shall be vested in the Members who shall serve as

Operating Managers of the Company, initially Stephen Hyde.” The plain intent of this provision is

to grant Hyde, as operating manager, full and sole control over the company’s business and to

give him, as operating manager, all powers and rights necessary to conduct that business. See

Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 861 (Tex. 2002). It is hard to imagine

a broader grant of managerial power, but preventing or recovering from losses, whether by

theft, misappropriation, bad management, or otherwise, certainly falls under the umbrella of

“the purposes, business and objectives” of any company. Moreover, maintaining, reasserting, or

regaining control of the company’s real property and other assets—the purpose of the LLC’s claims

here—would likewise fall under the same umbrella. By extension, actions taken to do those things,

including filing suit against the persons and entities believed to have misappropriated funds from the

motel’s bank accounts, mismanaged the motel, and who will not relinquish control of the motel

property are necessary, proper, and advisable for the motel’s business, objectives, and profits. As




       4
           The referenced limitation on this authority involved the sale or refinance of real property.

                                                   9
such, Hyde, as the named operating manager, had the authority under the plain terms of El Patio,

LLC’s operating agreement to litigate the claims at issue here on behalf of the LLC, and we

hold accordingly.

               Even if the LLC’s operating agreement did not expressly grant Hyde the authority to

conduct litigation on the LLC’s behalf, however, the cases that Penny cites in support of his

proposition—i.e., that Texas law requires express language in the bylaws or approval from the board

of directors for an officer to litigate on behalf of a corporation—would not inform our decision here

because (1) they involved corporations, not LLCs and, relatedly, (2) were decided under the now-

expired and recodified article 2.31of the Texas Business Corporation Act. See Texas Business

Corporations Act, 54th Leg., R.S., ch. 64, art. 2.31, 1955 Tex. Gen. Laws 239, 256–57, repealed and

recodified by Act of May 13, 2003, 78th Leg., R.S., ch. 183, § 2, 2003 Tex. Gen. Laws 267, 595

(providing that “the business and affairs of a corporation shall be managed by a board of directors”

(emphases added)). The “current” version of article 2.31 is located in the Texas Business

Organizations Code (TBOC) chapter specific to for-profit corporations, which in turn is located

in “Title 2 Corporations,” meaning that it is not applicable to limited-liability corporations such

as El Patio, LLC. See Tex. Bus. Orgs. Code §§ 1.002(14) (defining “corporation”), 21.401(a)

(corporations are managed by board of directors); see also id. §§ 101.001–622 (provisions specific

to LLCs). More important, however, is that the TBOC provisions applicable here—including those

applicable to all business organizations and those specifically applicable to limited-liability

companies—provide that, unless the entity’s governing documents provide otherwise, a limited

liability company’s affairs are managed and directed by managers. See id. §§ 1.002(35)(A)(iii)–(iv)

(defining “governing authority”), 1.002(46) (defining “limited liability company”), 3.101 (governing

                                                 10
authority generally), 101.251 (LLC governing authority). Thus, if an LLC’s operating agreement

does not grant its operating manager the powers and rights discussed above, its manager would

manage the company under the gap-filling provisions of the TBOC, not as described in the cases

cited by Penny. See id. §§ 101.052(b), .252 (providing that LLC company agreement governs, but

to extent agreement does not otherwise provide, TBOC governs); see also id. §§ 1.002(35)(A),

101.251, .252 (unless governing documents provide otherwise, managers of LLC manage and

direct affairs).

                   Penny next argues that, regardless of the authority granted by the LLC’s operating

agreement, the second sentence in the following paragraph of the operating agreement requires that

every action by the LLC must be voted on and approved by a majority interest of the member owners

including, he asserts, the hiring of an attorney:


                Management of the Company shall be vested in the Members who shall serve
        as Operating Managers of the Company, initially Stephen Hyde, or a company
        controlled by him. Except as otherwise provided in this Agreement, all decisions of
        the Operating Managers shall be by a majority in interest of the Members. All
        Operating Managers must be Members of the Company, or a company controlled by
        a member. . . .


(Emphasis added.) We disagree.

                   Considering the agreement as a whole and harmonizing its provisions with an eye to

the particular business activity sought to be served, we conclude that the language Penny relies on

here merely explains the method by which, in a situation where there is more than one operating

manager and they are not in complete agreement, the managers reach a decision. The paragraph’s

first sentence provides that management of the company will be vested in operating managers,



                                                    11
that only members can serve as operating managers, and that Hyde will be the first member to

serve as operating manager. The second sentence, staying within the context of their management

of the LLC, explains that the operating managers’ decisions—i.e., “decisions of the Operating

Managers”—are achieved based on their membership interest. Penny’s interpretation—i.e., to

require a majority vote on every company decision—would render the operating agreement

unreasonable, inequitable, and oppressive, see Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 530

(Tex. 1987) (“Courts will avoid when possible and proper a construction which is unreasonable,

inequitable, and oppressive.”), because it would have the effect of making the agreement’s creation

of operating managers and their duties meaningless given that a member vote would be required for

any and every action. Stated another way, why have operating managers if all decisions must be

made by the members? Penny’s interpretation would likewise render redundant the agreement’s

requirement that a majority in interest of the members approve the selling or refinancing of

real property.

                 Based on our determination that the operating agreement vests Hyde with authority

to litigate on the LLC’s behalf, we hold that Mirazo satisfied his burden by offering El Patio, LLC’s

operating agreement and Hyde’s affidavit. We overrule Penny’s first issue.


Discovery sanctions

                 In his second issue, Penny challenges the district court’s decision to strike the third-

party defendants’ pleadings and render judgment for El Patio, LLC as a form of discovery sanctions.

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

134 S.W.3d 835, 838 (Tex. 2004). We will reverse this ruling only if the district court acted



                                                   12
“without reference to any guiding rules and principles,” such that its ruling was arbitrary

or unreasonable. Id. at 839.       In determining whether the trial court abused its discretion,

we must ensure that the sanctions were appropriate or just. TransAmerican Natural Gas Corp.

v. Powell, 811 S.W.2d 913, 917 (Tex. 1991). Imposition of sanctions is appropriate (1) if there is

a direct relationship between the improper conduct and the sanctions imposed—i.e., the sanctions

must be directed against the abuse and abuser and be tailored to remedy any prejudice the abuse

caused—and (2) if the sanctions are not excessive—i.e., the punishment should fit the crime. Id.

The imposition of severe sanctions—such as the death-penalty sanctions assessed here—is also

limited by constitutional due-process concerns because it adjudicates the merits of a party’s claims

or defenses. As such, severe sanctions are not appropriate unless the offensive conduct justifies a

presumption that the party’s claims or defenses lack merit. Id.

               To determine whether the district court’s sanctions were an abuse of discretion under

the above guidelines, we begin by reviewing the discovery events leading up to the district court’s

decision. Early in the litigation, El Patio, LLC filed multiple forms of written discovery directed at

each of the third-party defendants, including interrogatories, requests for disclosure, requests for

admission, depositions on written questions, and requests for production. Given that many of its

claims involved allegations of mismanagement of the motel and misappropriation of funds from the

motel’s bank accounts, El Patio, LLC focused certain of its discovery requests on obtaining

information and records regarding the motel’s bank accounts. The following is a chronological

accounting of the discovery motions and orders related to the LLC’s efforts to get the third-party

defendants to respond to these discovery requests.




                                                 13
December 31, 2009   Temporary injunction issues—includes order that third-party
                    defendants turn over bank information and records.

February 23, 2010   El Patio, LLC files motions to compel, for contempt, and for
                    sanctions. Penny does not file a response.

March 3, 2010       Hearing on motion for sanctions—district court warns third-
                    party defendants that failure to respond to discovery requests
                    “could result in striking pleadings,” and sets a March 18
                    deadline for the responses.

March 8, 2010       El Patio, LLC files motion for sanctions.

March 25, 2010      District court issues order compelling discovery responses.

April 14, 2010      District court imposes discovery sanctions of $810 and orders
                    third-party defendants to appear and show cause why they
                    should not be held in contempt.

April 23, 2010      El Patio, LLC files motion to compel and for sanctions.
                    Penny does not file a response.

May 5, 2010         District court imposes discovery sanctions of $11,185.57.

June 28, 2010       Hearing on El Patio, LLC’s motions to compel and for
                    sanctions—district court orders third-party defendants to
                    appear at July 14 show-cause hearing and explain “why the
                    Court should not at this point strike all of the plaintiff’s
                    pleadings, as well as Blue Castle’s pleadings, for failure to
                    complete discovery. That is somewhat of a—that’s kind of a
                    final solution, to strike pleadings, but the Court has entered
                    many discovery orders prior to this, and so it’s gotten to the
                    point where the—the final solution may be the only solution.”

July 21, 2010       Penny and Cheroske file motion to show authority.

August 16, 2010     El Patio, LLC files motions for contempt, to compel, and for
                    sanctions. Penny files no response.

October 22, 2010    El Patio, LLC files motions to compel and for sanctions.
                    Penny files no response.




                              14
       October 26, 2010               El Patio, LLC files motion to strike third-party defendants’
                                      pleadings and motion for sanctions. Penny files no response.

       November 1, 2010               District court issues order compelling discovery responses by
                                      certain deadline, admissions deemed, and to show cause
                                      regarding contempt.

       January 7, 2011                Hearing on various motions for contempt, to compel, and for
                                      sanctions, including motion to strike pleadings. El Patio,
                                      LLC presents extensive evidence. Penny offers none.

       February 26, 2011              District court issues orders for pending discovery motions,
                                      granting motions for contempt and to compel, and awarding
                                      sanctions of $16,370, $450, $450, and $900; and grants El
                                      Patio’s motion to strike pleadings.


In addition to the above, the record suggests that the third-party defendants delayed court-ordered

mediation by not responding to discovery or producing the requested documents. Further, at one

point, the third-party defendants told El Patio, LLC that the bank records would be at their

accountant’s office, but the documents were not there when El Patio, LLC went there to obtain them.

But, with the exception of a printout of a computer program that the LLC already had and one set

of unsigned responses to admissions, the third-party defendants systematically avoided responding

to the LLC’s discovery requests and, in fact, never produced the requested records.

               In its order granting the motion to strike pleadings, the district court found that

defendants “have abused the discovery process, have failed to comply with El Patio’s discovery

requests, and have disregarded th[e] Court’s orders regarding discovery.” The district court also

concluded that lesser-assessed “sanctions have failed,” and then awarded additional monetary

sanctions and entered judgment in favor of El Patio, LLC on all its claims.




                                                15
               On appeal, Penny does not dispute the events as set forth above or that he and the

other third-party defendants failed to produce the bank account documents as ordered. Instead, he

argues that the trial court abused its discretion in striking the pleadings because Penny “had a

legitimate reason to delay responding to discovery until the court had ruled on the authority of

Mirazo to file the [petition in] intervention” and because “the discovery sought was basically in the

possession of Stephen Hyde.” We disagree.

               Penny and the third-party defendants did not file the motion to show authority until

July 21, 2010. By that time, the discovery deadlines had already passed and the district court had

imposed sanctions totaling $11,995.57 against the third-party defendants for their failure to produce

the documents. In fact, the third-party defendants did not raise the lack-of-authority issue as a

“defense” to these discovery requests until well after they had filed the motion to show authority.

Further, when questioned at the various hearings by the district court about the failure to respond to

discovery, Penny’s attorney responded by saying either that he thought the documents had already

been produced or that he expected that they soon would be, but not that his clients were refusing to

comply based on their assertion that Mirazo lacked the authority to seek discovery.

               Even if we were to accept that the third-party defendants thought they could ignore

the discovery requests because Mirazo lacked the authority to prosecute the case, however, Penny

does not explain what excused them from observing the injunction and orders of the district court,

whose authority here is undeniable. Finally, Penny cites to no authority, and we have found none,

supporting his argument that a pending Rule 12 motion excuses a party from obeying discovery

requests, much less injunctions and other court orders. Nor does the record show that the

district court suspended discovery, abated discovery, or did anything else that would provide an

                                                 16
excuse, while the motion to show authority was pending. To the contrary, the record shows that the

district court specifically denied Penny’s request to abate the matter pending a decision on the

motion to show authority and, for that matter, that each time the district court addressed the third-

party defendants’ failure to produce the documents, it expressly warned them that their continued

failure to comply with the discovery-related orders could result in additional sanctions, including the

possibility of having their pleadings struck. The district court also gradually increased the sanctions

against them.

                Penny also argues that the district court’s sanctions were an abuse of discretion

because “the discovery sought was basically in the possession of Stephen Hyde.” In support of this

argument, Penny directs us to certain exhibits submitted by El Patio, LLC in the damages portion

of the trial. These exhibits include various El Patio Motel bank statements, cancelled checks, and

other financial documents, but also documents that appear to have been generated by El Patio, LLC

for litigation—e.g., summary of payments to third-party defendant lawyers; summary of unlawful

management fees after termination; summary of excessive management fees; and summary of

missing cash. But again, Penny cites to no authority, and we can find none, that would excuse a

party from responding to discovery requests and complying with court orders because the other party

might already have the documents that are the subject of the discovery requests and orders.

Likewise, he cites no authority supporting his implied assertion that a trial court may only impose

discovery sanctions where the underlying discovery requests sought information about matters

unknown to the requestor. But the lack of authority is not surprising given that the purpose of

discovery is to provide parties with notice of the evidence that the opposing party intends to present




                                                  17
and to prevent trial by ambush, and not merely to gain new information. See Ersek v. Davis & Davis,

P.C., 69 S.W.3d 268, 274 (Tex. App.—Austin 2002, pet. denied).

               Nevertheless, to the extent that Penny’s argument could be considered a general

allegation that the district court’s imposition of death-penalty sanctions here was unjust or

inappropriate, or somehow failed to meet the supreme court’s standards for death-penalty sanctions,

we also disagree. The district court allowed the parties to enter into an agreed temporary injunction

covering the relevant bank documents. Then, after being presented with several motions regarding

the failure to comply with the discovery requests, the district court began issuing orders compelling

the discovery by certain deadlines and imposing smaller sanctions after the third-party defendants

completely refused to respond to the discovery requests and failed to offer any reasons for that

failure. Over time, the district court continued ordering compliance, gradually increasing the

sanction amounts, while also warning the third-party defendants about the consequences of their

continued failure. Finally, the district court, when it determined that nothing else would work,

struck the offending parties’ pleadings. See Cire, 134 S.W.3d at 842–43; Spohn Hosp. v. Mayer,

104 S.W.3d 878, 882–83 (Tex. 2003); Transamerican, 811 S.W.2d at 917.

               We are also satisfied that the district court’s sanctions do not run afoul of

Penny’s due-process rights given that the sanctioned conduct—repeated refusal to turn over

key documents—justifies a presumption that the party’s claims or defenses lack merit. See

TransAmerican, 811 S.W.2d at 917. According to the record, Penny and the third-party defendants

refused to respond to any of the discovery requests, with the exception of one summary document

from a computer program, and filed no responses to El Patio, LLC’s multiple motions. The principal

documents at issue in this discovery—i.e., the bank-account information, bank records, and other

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financial information for the El Patio Motel—go to the heart of El Patio, LLC’s mismanagement

claims against Penny and the other third-party defendants. Without all the bank records to trace the

motel’s funds, especially possibly incriminating ones withheld by the third-party defendants, it seems

unlikely that El Patio, LLC would be able to prove the claims asserted in its live petition in

intervention, all of which rely in some part on assertions involving transactions with motel funds.

For example, El Patio, LLC’s conversion and theft-liability claims assert that the third-party

defendants “paid themselves excessive and unauthorized management fees and have taken other

funds.” The third-party defendants’ refusal to produce the very documents that would be at the core

of the claims asserted against them justifies a presumption that their defenses against those claims

lack merit. See id. at 918.

               In sum, considering the record and the district court’s actions leading up to and

including striking the third-party defendants’ pleadings, we cannot agree the district court’s

imposition of death-penalty sanctions was an abuse of discretion. We overrule Penny’s second issue.


Exemplary damages

               In his third and final issue, Penny asserts that the district court’s award of exemplary

damages jointly and severally against Penny and the other third-party defendants was improper

under section 41.006 of the Texas Civil Practices and Remedies Code. We agree. By its plain terms,

section 41.006 prohibits joint and several liability for exemplary damages by requiring that the award

of exemplary damages be specific as to a defendant and that the defendant be liable only for the

amount of the award against him: “[I]n any action where there are two or more defendants, an

award of exemplary damages must be specific as to a defendant, and each defendant is liable only



                                                 19
for the amount of the award made against that defendant.” Tex. Civ. Prac. & Rem. Code § 41.006;

see Carlton Energy Grp., LLC v. Phillips, 369 S.W.3d 433, 465 (Tex. App.—Houston [1st Dist.]

2012) (rejecting argument that alter ego finding trumps 41.006’s plain language), aff’d in part, rev’d

in part, __S.W.3d__, No. 12–0255, 2015 WL 2148951 (Tex. May 8, 2015) (section 41.006 issue

was not raised appealed to supreme court); Computek Computer & Office Supplies, Inc. v. Walton,

156 S.W.3d 217, 223–24 (Tex. App.—Dallas 2005, no pet.) (“By its plain terms, section 41.006

provides that there is no joint and several liability for exemplary damages.”); see also, e.g., City of

Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008) (noting “we ascertain and give effect to the

Legislature’s intent as expressed by the language of the statute” and “we construe the statute’s words

according to their plain and common meaning”). Accordingly, it was error for the district court to

make Penny jointly and severally liable for these damages.

               El Patio, LLC urges us to apply an exception to section 41.006 for closely-related

defendants or for interrelated companies with common decision makers. See Transfer Products, Inc.

v. Texpar Energy, Inc., 788 S.W.2d 713, 717 (Tex. App.—Corpus Christi 1990, no writ) (affirming

joint and several award of exemplary damages against interrelated companies with the same decision

makers). In fact, El Patio, LLC suggests that the Houston Court of Appeals considered and approved

of such a solution in Carlton, and that we should go one step further and adopt it here. But a close

reading of Carlton reveals that First Court of Appeals was merely offering a “suspenders” argument

to support its main holding. See Carlton, 369 S.W.3d at 465 (“However, even if such a finding might

in some circumstances permit joint and several liability for exemplary damages, . . . .”) (emphases

added). Regardless, cases such as Texpar, which allowed the exception, were decided before section

41.006 became applicable and, thus, were governed by the common-law rules for exemplary

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damages. Computek, 156 S.W.3d at 224. Having been enacted by the Legislature, section 41.006

now controls this issue. We sustain Penny’s third issue.


                                            Conclusion

               Having sustained Penny’s third issue, we reverse the district court’s joint and several

award of exemplary damages and remand the issue of exemplary damages to the district court for

its reconsideration. We affirm the remainder of the judgment.



                                              __________________________________________
                                              Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Goodwin and Field

Affirmed in part; Reversed and Remanded in part

Filed: June 4, 2015




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