                In the
           Court of Appeals
   Second Appellate District of Texas
            at Fort Worth
         ___________________________
              No. 02-17-00302-CV
         ___________________________

        DAVID HERNANDEZ, Appellant


                         V.

ROCKWATER ENERGY SOLUTIONS, INC., Appellee



      On Appeal from the 48th District Court
             Tarrant County, Texas
         Trial Court No. 048-283327-16


    Before Sudderth, C.J.; Walker and Gabriel, JJ.
             Opinion by Justice Gabriel
                           MEMORANDUM OPINION

      Appellant David Hernandez appeals from the trial court’s final judgment

dismissing his claims against appellee Rockwater Energy Solution, Inc. as a discovery

sanction. Because we conclude that the trial court did not abuse its discretion, we

affirm the trial court’s judgment of dismissal.

      In January 2016, Hernandez sued Rockwater, his former employer, for

wrongful termination, alleging that Rockwater fired him in March 2015 in retaliation

for his reporting policy violations to the Occupational Safety and Health

Administration (OSHA) and ensured he would not receive unemployment benefits.

In June 2016, Hernandez dismissed any OSHA-related complaints against Rockwater

in exchange for Rockwater’s payment to him of $10,000 and Rockwater’s agreement

to expunge Hernandez’s personnel file of any negative references. On September 7,

Rockwater notified Hernandez that it intended to take his deposition on September

23. See Tex. R. Civ. P. 199.2.

      At the September 23 deposition, Rockwater’s counsel asked Hernandez about

the June 2016 settlement agreement. Hernandez asserted that he had been forced to

sign the agreement and then stated that he wanted “to walk away” and would “ask for

a protective order” from Rockwater’s “harassment.” Hernandez left the deposition

before it was completed. That same day, Rockwater served Hernandez with a second

notice of his deposition to be taken on September 30.         Hernandez lodged no


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objection to and failed to appear for the September 30 deposition. See Tex. R. Civ. P.

199.4.

         On January 30, 2017, Rockwater filed a motion to compel Hernandez’s

appearance at a deposition and a motion for sanctions. See Tex. R. Civ. P. 215.1(b).

On March 3 after holding a hearing at which Hernandez was present,1 the trial court

granted the motion to compel, ordering Hernandez to appear at a March 31

deposition, and awarded Rockwater sanctions that represented the costs Rockwater

incurred for the incomplete and no-show depositions. See Tex. R. Civ. P. 215.1(d),

215.2(b). On March 8, Rockwater notified Hernandez that it intended to take his

deposition on March 31 as ordered by the trial court. Two days before the March 31

deposition, Hernandez filed a motion for protective order and to quash the court-

ordered deposition, arguing that Rockwater was harassing him and that Rockwater

had not given him ten days’ notice of the September 30 deposition as required by the

trial court’s local rules. See Tex. R. Civ. P. 192.6; Tarrant Cty. (Tex.) Civ. Cts. Loc. R.

3.11(a)(5). In his motion, Hernandez stated that he would not submit to a deposition

“even with a court order.” Hernandez did not provide proof of service on Rockwater

as part of his motion. See Tex. R. Civ. P. 21a(a), (e). Hernandez did not appear for

the March 31 court-ordered deposition.


       Although the trial court apparently held a hearing on Rockwater’s motion to
         1

compel, Hernandez did not request that the court reporter prepare a record from that
hearing. See Tex. R. App. P. 34.6(b)(1).

                                            3
      On May 17, Rockwater filed a motion to dismiss Hernandez’s claims with

prejudice as a discovery sanction. See Tex. R. Civ. P. 215.2(b)(5), 215.3. At the trial

court’s June 21 hearing on Rockwater’s motion, Hernandez admitted that he did not

appear for the March 31 deposition and that he had not paid the sanctions included in

the March 3 order; but he asserted that he did not comply because he “was waiting for

a resolution on the protective order.”2 The trial court granted Rockwater’s motion

and dismissed Hernandez’s claims with prejudice based on his failure to appear for

the March 31 court-ordered deposition.

      Hernandez filed a post-judgment motion requesting that his claims be

reinstated because Rockwater relied on fabricated evidence in moving for the

dismissal. The trial court denied Hernandez’s post-judgment motion, and Hernandez

now appeals the trial court’s judgment. Hernandez, who appeared pro se in the trial

court and in this court, now argues in six “issues presented” that the trial court erred

by dismissing his claims as a discovery sanction because it relied on fabricated

evidence and Rockwater’s violations of the procedural rules and because it failed to

consider Hernandez’s evidence.

      Rockwater asserts that Hernandez has waived his appellate arguments based on

his failure to provide citations to relevant authority and failure to proffer clear and

concise argument to support his issues. See Tex. R. App. P. 38.1(i). We agree that

      2
       Rockwater requested that the reporter’s record from this hearing be prepared.
See Tex. R. App. P. 34.6(c)(2).

                                           4
Hernandez’s brief is difficult to understand and walks the thin line between good

enough and unintelligible. But we are directed to favor deciding a case on the merits

if the brief, through liberal construction, sufficiently acquaints us with the issues. See

Tex. R. App. P. 38.9; Republic Underwriters Ins. Co. v. Mex–Tex, Inc., 150 S.W.3d 423,

427 (Tex. 2004).     Here, we are able to discern at least the broad strokes of

Hernandez’s complaints such that we can decide the appeal on its merits. See, e.g.,

Coleman v. Prospere, 510 S.W.3d 516, 519 (Tex. App.—Dallas 2014, no pet.).

      A trial court may dismiss a plaintiff’s claims as a discovery sanction—

sometimes referred to as a death-penalty sanction—if the plaintiff abuses the

discovery process. See Tex. R. Civ. P. 215.2(b)(5), 215.3; In re Bledsoe, 41 S.W.3d 807,

812 (Tex. App.—Fort Worth 2001, orig. proceeding). We review a trial court’s

discovery sanction, even a death-penalty sanction, for an abuse of discretion, which

does not occur if some evidence of substantive and probative character exists to

support the trial court’s decision. See Cire v. Cummings, 134 S.W.3d 835, 838 (Tex.

2004); Magnuson v. Mullen, 65 S.W.3d 815, 825–26 (Tex. App.—Fort Worth 2002, pet.

denied).

      In imposing discovery sanctions, a trial court is guided by a two-part inquiry.

TransAm. Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991) (orig. proceeding).

First, is there a direct relationship between the offensive conduct and the sanction

imposed? This requires that the sanction be directed against the abuse and toward

remedying the prejudice to the other party. Id. Second, is the imposed sanction
                                            5
excessive? A sanction is excessive if the imposition of a lesser sanction would have

promoted compliance with the rules. Id. The facts presented to the trial court at the

hearing on Rockwater’s motion to dismiss supported the trial court’s decision.

      Hernandez appeared for the September 23 deposition but left when

Rockwater’s questioning turned to his post-suit settlement with Rockwater. Although

Hernandez admitted that he received notice of the September 30 deposition, he did

not appear at all. This led to the trial court’s March 3 order imposing sanctions

against Hernandez and directing him to appear for a deposition on March 31, which

Hernandez ignored. Again, Hernandez admitted that he received notice of the trial

court’s March 3 order and that no exigent circumstances prevented him from

appearing, but he argued that his March 29 application for a protective order from

Rockwater’s discovery requests obviated his need to comply with the trial court’s

order. It did not. See generally Tex. R. Civ. P. 192.6(a) (authorizing trial court to

protect “person from whom discovery is sought” from party’s discovery requests, not

to protect from trial-court order).

      The trial court specifically noted before dismissing Hernandez’s claims that it

had imposed lesser sanctions in its March 3 order, that Hernandez knew about the

order, and that Hernandez had complied with none of its terms. The trial court here

considered lesser sanctions and imposed them to no avail. These lesser sanctions

were tailored to Hernandez’s prior abuse of the discovery process. And although

Hernandez argues that Rockwater fabricated evidence, leading to the trial court’s
                                          6
abuse of discretion, we can find no record support for that allegation. Accordingly,

the trial court was within its discretion to dismiss Hernandez’s claims as a discovery

sanction. See, e.g., In re Estate of Preston, 346 S.W.3d 137, 158–62 (Tex. App.—Fort

Worth 2011, no pet.); Teate v. CBL/Parkdale Mall, L.P., 262 S.W.3d 486, 491–92 (Tex.

App.—Beaumont 2008, no pet.); Van Es v. Frazier, 230 S.W.3d 770, 777–84 (Tex.

App.—Waco 2007, pet. denied); Paradigm Oil, Inc. v. Retamco Operating, Inc., 161 S.W.3d

531, 537–39 (Tex. App.—San Antonio 2004, pet. denied); Magnuson, 65 S.W.3d at 828.

      We overrule Hernandez’s issues and affirm the trial court’s judgment. See Tex.

R. App. P. 43.2(a).


                                                     /s/ Lee Gabriel

                                                     Lee Gabriel
                                                     Justice

Delivered: September 20, 2018




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