Affirmed and Memorandum Opinion filed November 17, 2015.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-14-00431-CV

                          JASMINE RICKS, Appellant
                                          V.
                     QUALITY CARRIERS, INC., Appellee

                    On Appeal from the 157th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2011-17716

                  MEMORANDUM OPINION


      This appeal arises from the imposition of a “death penalty” discovery
sanction on appellant Jasmine Ricks. Ricks concedes that she failed to comply
with discovery requests as well as with the trial court’s discovery orders. She
argues only that the sanction imposed was inappropriate.         Applying the
TransAmerican standard, we conclude that the sanction imposed was not excessive
and affirm the trial court’s dismissal of Ricks’s claims.
                         Factual and Procedural Background

       On March 23, 2011, Ricks filed suit against Quality Carriers, Inc. and its
employee, Craig Smith, alleging that Smith was negligent in causing a collision
with Ricks’s car. Ricks alleged that Quality Carriers was responsible for Smith’s
negligence because Smith was acting within the scope of his employment at the
time of the collision.

       At issue in this case is Ricks’s admitted failure to comply with Quality
Carriers’ discovery requests. The trial court issued its first order compelling Ricks
to comply with discovery a few months after Ricks filed her original petition.
Ricks concedes that she did not comply with this order. Quality Carriers later
noticed Ricks for deposition. Ricks failed to appear. The trial court signed an
order compelling Ricks to appear for deposition the next month and sanctioning
her for her abuse of the discovery process. The order further warned Ricks that if
she again failed to appear for deposition, harsher sanctions could be imposed
against her—including dismissal of the case with prejudice. The court issued two
additional orders postponing the date that Ricks was ordered to appear for
deposition. Ricks again failed to appear for the scheduled deposition. The trial
court again ordered Ricks to appear and be deposed.

       On November 4, 2013, the court called the case for trial. On that day, Ricks
requested a stay of the proceedings pending review of an earlier order in the case.
The trial court denied the request for a stay. When Ricks said that she was not
ready for trial and would not call any witnesses, the trial court dismissed the case.
On November 8, 2013, the trial court reversed its dismissal sua sponte and reset
the case for trial.

       However, after Ricks again failed to comply with its discovery requests,
Quality Carriers filed a motion asking the trial court to enter judgment in its favor.
                                          2
The trial court granted the motion and rendered judgment for Quality Carriers on
February 6, 2014, which resulted in the complete disposition of Ricks’s case.1
Ricks timely appealed and now argues that the trial court’s judgment against her
was an inappropriate “death penalty” sanction.

                                             Analysis

       Quality Carriers first urges us to dismiss this appeal on the grounds that
Ricks has not complied with the Rules of Appellate Procedure because she did not
present the court with a discrete issue statement or with authority for her argument.
See Tex. R. App. P. 38.1(f), 38.1(i). We decline to do so. Although Ricks has not
presented us with a separate “Statement of the Issues,” she has nonetheless
substantially complied with Rule 38.1(f) by making it clear that she is arguing that
the trial court erred in imposing sanctions on her. See id. 38.1(f); see also id. 38.9
(“Because briefs are meant to acquaint the court with the issues in a case and to
present argument that will enable the court to decide the case, substantial
compliance with this rule is sufficient. . .”). Further, Ricks presented this court
with legal authority for her position as required by the Rules. See id. 38.1(i). We
decline to dismiss the appeal and proceed to our review of the trial court’s
judgment.

       We review a trial court’s imposition of sanctions for abuse of discretion.
Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006).                             We
determine “whether the court acted without reference to any guiding rules or
principles” such that the decision is arbitrary or unreasonable. Cire v. Cummings,

       1
          The trial court’s judgment stated that it disposed of all claims and causes pending in this
action—which would have included Ricks’s claims against Smith—and was final and
appealable. However, the issue on appeal concerns the trial court’s judgment on a motion filed
only by Quality Carriers. Smith has not submitted a brief and does not appear to be implicated
further in this appeal. Therefore, Quality Carriers is the only appellee in this case.

                                                 3
134 S.W.3d 835, 839 (Tex. 2004).

      Sanctions imposed by the trial court must be just. TransAmerican Nat. Gas
Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991). For a sanction to be just, it
must first have a direct relationship to the offensive conduct. Id. It must also be
imposed on the actual offender—the party, party’s counsel, or both. Id. Second,
the sanction must not be excessive, meaning it must not be “more severe than
necessary to satisfy its legitimate purposes.” Id.

      “Very severe” sanctions implicate additional constitutional due process
concerns. Id. at 917–18. As a result, “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.” Id. at 918. A sanction that adjudicates the merits of a party’s claim
prematurely “should not be assessed absent a party’s flagrant bad faith or counsel’s
callous disregard for the responsibilities of discovery under the rules.” Id.

      Here, the trial court imposed a very severe “death penalty” sanction on
Ricks. Death penalty sanctions “adjudicate[] a claim and preclude[] presentation
of the merits of the case.” In re RH White Oak, LLC, 442 S.W.3d 492, 501 (Tex.
App.—Houston [14th Dist. 2014], no pet.). By rendering a final judgment in favor
of Quality Carriers before discovery was complete, the court precluded Ricks from
ever presenting the merits of her claim.        We must, therefore, evaluate that
judgment with an eye toward the due process concerns expressed by the Texas
Supreme Court in TransAmerican.

      Applying TransAmerican, we hold that the sanction imposed here has a
direct relationship to the offender—Ricks—as well as to her conceded failure to
comply with the trial court’s orders. The main question in this case is whether the
very severe death penalty sanction “fit the crime.” TransAmerican, 811 S.W.2d at
                                          4
917.     TransAmerican requires trial courts to ensure that sanctions are
proportionate—and, in doing so, to consider whether less stringent sanctions would
promote compliance—before they deal the fatal blow to a party’s case. Id. Here,
the record demonstrates that the trial court considered—and imposed—lesser
sanctions before imposing the ultimate one. The court ordered Ricks to comply
with discovery on multiple occasions and sanctioned her for refusing to do so.
However, these lesser sanctions and orders did nothing to secure Ricks’s
compliance. Despite the court’s orders, Ricks continued her noncompliance up
until the time that the trial court dismissed her case—over two full years after the
court’s first order compelling production.        This protracted refusal to produce
evidence was enough to support the trial court’s presumption that Ricks’s claims
lacked merit. Id. at 918. The death penalty sanction in this case, although severe,
is not excessive under TransAmerican. The trial court did not abuse its discretion
when it dismissed Ricks’s case with prejudice.

                                    Conclusion

       We affirm the judgment of the trial court.




                                       /s/       Marc W. Brown
                                                 Justice


Panel consists of Justices Boyce, Busby, and Brown.




                                             5
