                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-08-00310-CV

JACK COLBERT,
                                                             Appellant
v.

KELLY COLBERT AND 3S RELO TRANS, LLC,
                                                             Appellees



                         From the 272nd District Court
                              Brazos County, Texas
                        Trial Court No. 05-002094-CV-272


                          MEMORANDUM OPINION


      Kelly Colbert and 3S Relo Trans, L.L.C. (“Kelly”) sued Jack Colbert and

Christopher Colbert, alleging various causes of action.        Kelly served Jack and

Christopher with requests for disclosure, production, and interrogatories and later filed

a motion to compel their responses. The trial court ordered “Defendant Christopher M.

Colbert” to serve responses by a certain date and pay Kelly’s reasonable attorney’s fees.

Jack was not mentioned in this first order. Kelly later filed a second motion to compel

and for sanctions against the “Defendants.” At the conclusion of a hearing on the
motion, the trial court found, “Defendants have contumaciously and with great

stubborn disobedience flaunted the discovery rules and the Court’s previous court

order.”     The trial court ordered death penalty sanctions against both Jack and

Christopher and subsequently entered a default judgment against them. In three issues,

Jack challenges the trial court’s second order granting death penalty sanctions.1 We

reverse and remand.

                                       RESTRICTED APPEAL

        A restricted appeal is available for the limited purpose of providing a party that

did not participate at trial with the opportunity to correct an erroneous judgment.

Campbell v. Fincher, 72 S.W.3d 723, 724 (Tex. App.—Waco 2002, no pet.). It must: (1) be

brought within six months after the judgment is signed; (2) by a party to the suit; (3)

who did not participate at trial; and (4) the error complained of must be apparent from

the face of the record. Id; see TEX. R. APP. P. 26.1(c); see also TEX. R. APP. P. 30. The parties

do not dispute the first three requirements, leaving only the issue of whether Jack

demonstrates error on the face of the record. See Campbell, 72 S.W.3d at 725.

                                               ANALYSIS

        In his first and second issues, Jack contends that the trial court’s order granting

death penalty sanctions was improper because he was not the party who violated the

order to compel and the trial court failed to test lesser sanctions against him. In his

third issue, Jack contends that this sanctions order violates his due process rights. We

review a trial court’s ruling on a motion for sanctions for abuse of discretion. Cire v.

1       Christopher did not file a notice of appeal.


Colbert v. Colbert                                                                        Page 2
Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004); Van Es v. Frazier, 230 S.W.3d 770, 777

(Tex. App.—Waco 2007, pet. denied).

        A trial court has discretion to impose sanctions, but any sanction must be “just:”

there must be (1) a direct relationship among the offensive conduct, the offender, and

the sanction imposed, and (2) the sanction must not be excessive. Spohn Hosp. v. Mayer,

104 S.W.3d 878, 882 (Tex. 2003) (per curiam); Van Es, 230 S.W.3d at 777. Sanctions must

be imposed on the “true offender.” Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583

(Tex. 2006). Making a party liable for discovery expenses that are caused by another

party’s misconduct does not further any of the purposes that discovery sanctions were

intended to further. Bodnow Corp. v. Hondo, 721 S.W.2d 839, 840 (Tex. 1986).

        The trial court’s death penalty sanctions order states: “Defendants failed to

respond to Plaintiffs’ discovery requests in the time and manner prescribed by the rules

and as further ordered by this Court.” Unlike Christopher, Jack was not instructed in the

first order to respond to Kelly’s discovery requests; thus, he was not the offending party

and cannot be sanctioned for Christopher’s conduct.2 See Jones, 192 S.W.3d at 583; see

also Bodnow, 721 S.W.2d at 840.


2        We also note that Jack and Christopher were represented by the same attorney to whom the
discovery requests, motions to compel, and orders were sent. The record does not indicate that the trial
court attempted to determine who was responsible for the offensive conduct:

        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.



Colbert v. Colbert                                                                                   Page 3
        Kelly argues that the trial court intended to include Jack in the first order because

Jack and Christopher were both represented by the same attorney, simultaneously

served with discovery, failed to respond to discovery, and named in the motion to

compel; thus, Jack’s conduct was no different from Christopher’s and the trial court so

found at the hearing. However, the trial court could not order death penalty sanctions

against Jack without notice and hearing. See TEX. R. CIV. P. 215.2(b); see also TEX. R. CIV.

P. 215.3; Cire,134 S.W.3d at 843. Even assuming that the trial court intended to include

him in the first order, there was no notice that Jack’s alleged failure to comply with the

order would result in sanctions.

        Accordingly, while lesser sanctions were tested against Christopher, they were

not tested against Jack. See Davenport v. Scheble, 201 S.W.3d 188, 194 (Tex. App.—Dallas

2006, pet. denied) (“[T]he trial court previously imposed lesser sanctions when it

granted Scheble’s motion to compel discovery and ordered Davenport to pay her

attorney’s fees.”).     Neither can we say that this is an “exceptional” case justifying

imposition of death penalty sanctions without the imposition of lesser sanctions. See

Cire, 134 S.W.3d at 842 (Violation of three court orders compelling production of

audiotapes and destruction of audiotapes was “an exceptional case” warranting

imposition of death penalty sanctions without first testing lesser sanctions).

        Because neither requirement for imposing death penalty sanctions is met, the

trial court abused its discretion by imposing death penalty sanctions against Jack. We

sustain issues one and two and need not address issue three. See TEX. R. APP. P. 47.1.


TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991) (emphasis added).


Colbert v. Colbert                                                                             Page 4
        The judgment is reversed as to Jack Colbert and this case is remanded for further

proceedings consistent with this opinion.




                                                       FELIPE REYNA
                                                       Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Reversed and remanded
Opinion delivered and filed August 12, 2009
[CV06]




Colbert v. Colbert                                                                 Page 5
