                              Fourth Court of Appeals
                                     San Antonio, Texas
                                            OPINION
                                        No. 04-12-00099-CV

                                  In the Interest of M.J.M., a Child

                   From the 25th Judicial District Court, Guadalupe County, Texas
                                    Trial Court No. 10-2042-CV
                           Honorable Dwight E. Peschel, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: June 26, 2013

REVERSED AND REMANDED

           J. Micah Morgan (“Micah”) appeals from a final judgment assessing death penalty

sanctions against him in a suit to modify the parent-child relationship. Micah presents two issues

on appeal. First, Micah argues the trial court erred in assessing death penalty sanctions against him

for discovery abuse without first considering less stringent sanctions. Second, Micah argues the

trial judge’s conduct during the sanctions hearing prevented him from receiving a fair and impartial

trial. We reverse and remand.

                                            BACKGROUND

           Micah was divorced from Christine Inmon (“Christine”) on January 13, 2004. The divorce

decree appointed Micah and Christine as joint managing conservators of their two children;

however, Christine was appointed the conservator with the exclusive right to designate the
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children’s primary residence. On September 24, 2010, Micah filed a suit to modify the parent-

child relationship, asking to be appointed the conservator with the exclusive right to designate the

primary residence of one of the children, M.J.M. When the petition was filed, M.J.M. was twelve

years of age or older.

       During the next seven months, Christine attempted to obtain discovery from Micah with

little success. Christine noticed Micah’s deposition, but Micah failed to appear. Christine

propounded interrogatories, but Micah failed to answer. Christine requested production of

documents. Micah responded to the request, stating that copies of the requested documents could

be inspected at his lawyer’s office. Nevertheless, the requested documents were never in fact made

available to Christine. The only discovery Micah provided was a response to a request for

disclosure. In this response, Micah identified seven potential fact witnesses and one potential

expert witness.

       On May 9, 2011, Micah and Christine appeared in the trial court, negotiated the terms of

an agreed scheduling order, and presented their agreement to the trial court. The trial court

approved the agreement, and signed an agreed scheduling order that: (1) set the case for trial on

August 19, 2011; (2) required both parties to provide responses to pending discovery requests no

later than May 31, 2011; and (3) set Micah’s deposition for June 7, 2011.

       On June 6, 2011, the trial court heard Micah’s motion for protective order, in which he

sought to prevent the taking of his deposition. Neither the motion for protective order, nor the

reporter’s record from this hearing are included in the appellate record. Nevertheless, the record

indicates that the trial court denied the motion and told Micah’s lawyer that both he and Micah

were to appear for the deposition. Micah and his lawyer failed to appear.

       On August 11, 2011, Christine filed a first amended motion to strike Micah’s pleadings

and to dismiss Micah’s cause of action, in which she detailed Micah’s failures to respond to her
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discovery requests. Christine’s motion also alleged Micah wholly failed to prosecute his suit.

Christine asked the trial court to strike Micah’s pleadings, to prohibit Micah from calling any

witnesses at trial, to dismiss Micah’s suit with prejudice, and to order Micah to pay all of her

expenses, court costs, and attorney’s fees in this matter.

        On August 19, 2011, Micah and Christine appeared for trial. Before the trial began,

Christine urged her first amended motion. Christine presented evidence regarding the discovery

history of the case, including evidence that Micah failed to appear at his June 7, 2011, deposition,

which was the second deposition scheduled for him in this case. Christine also presented evidence

of the total amount of attorney’s fees she had incurred in this case. In response, Micah opposed

the imposition of sanctions for discovery abuse. In addition, Micah specifically objected to

assessing any attorney’s fees against him that were unrelated to his failures to respond to discovery.

Finally, Micah urged the trial court to interview M.J.M. in chambers and to reach the merits of the

case.

        The trial court never interviewed M.J.M. in chambers, nor did it reach the merits of the

case. Instead, the trial court found that Micah failed to respond to Christine’s interrogatories, failed

to respond to Christine’s requests for production, and failed to appear at his deposition on June 7,

2011. The trial court then granted Christine’s first amended motion, ordering that:

        1. All of Petitioner J. Micah Morgan’s pleadings in this case are stricken;

        2. Petitioner J. Micah Morgan is prohibited from calling any witnesses, including
           himself, at any hearing or trial on the merits in this case;

        3. Petitioner J. Micah Morgan is prohibited from introducing any documentary or
           other evidence at any hearing or trial on the merits in this case;

        4. All of Petitioner J. Micah Morgan’s causes of action in this case are dismissed
           with prejudice;

        5. J. Micah Morgan’s Petition to Modify the Parent-Child Relationship is denied
           in full;
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         6. Petitioner J. Micah Morgan is sanctioned and ordered to pay all expenses, court
            costs and attorney’s fees borne by Respondent due to Petitioner’s failure to
            respond to Respondent’s discovery request and for failure to prosecute this
            matter in the amount of $17,500.00.

The record does not show the trial court tested or considered less stringent sanctions before

rendering its judgment. This appeal ensued. 1

                                        DEATH PENALTY SANCTIONS

         In his first issue, Micah argues the trial court’s order must be reversed because the trial

court erred in assessing death penalty sanctions against him without considering less stringent

sanctions.

         1. Applicable Law

         Sanctions for discovery abuse serve three legitimate purposes: (1) to secure compliance

with the discovery rules; (2) to deter other litigants from similar misconduct; and (3) to punish

violators. Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex. 1992). Notwithstanding these

purposes, discovery sanctions must be “just.” Id.; Transamerican Natural Gas Corp. v. Powell,

811 S.W.2d 913, 917 (Tex. 1991). Whether discovery sanctions are just depends on two factors.

Chrysler Corp., 841 S.W.2d at 849; Transamerican, 811 S.W.2d at 917. First, a direct relationship

must exist between the offensive conduct and the sanction imposed. Chrysler Corp., 841 S.W.2d

at 849; Transamerican, 811 S.W.2d at 917. Second, the sanction imposed must not be excessive.

Stated another way, “the punishment should fit the crime.” Chrysler Corp., 841 S.W.2d at 849;

Transamerican, 811 S.W.2d at 917. “A permissible sanction should … be no more severe than

required to satisfy legitimate purposes.” Chrysler Corp., 841 S.W.2d at 849. “This means that a

court must consider relatively less stringent sanctions first to determine whether lesser sanctions



1
 Although Christine’s first amended motion also urged the trial court to dismiss Micah’s suit for want of prosecution,
the record shows the trial court dismissed Micah’s suit as a sanction for discovery abuse.

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will fully promote compliance, deterrence, and discourage further abuse.” Id. Sanctions that

prevent a decision on the merits of a case cannot be justified, absent a party’s flagrant bad faith or

counsel’s callous disregard for the responsibilities of discovery under the rules. Id.;

Transamerican, 811 S.W.2d at 918.

       A “death penalty sanction” is any sanction that adjudicates a claim and precludes the

presentation of the merits of the case. Davenport v. Scheble, 201 S.W.3d 188, 193 (Tex. App.—

Dallas 2006, pet. denied). Rule 215.2(b)(5) of the Texas Rules of Civil Procedure expressly

authorizes “death penalty” sanctions, including “an order striking out pleadings,” an order

“dismissing with or without prejudice the action or proceedings,” or an order “rendering judgment

by default against the disobedient party.” TEX. R. CIV. P. 215.2(b)(5). Depending on the

circumstances, an order excluding essential evidence may constitute a death penalty sanction. See

In re Bledsoe, 41 S.W.3d 807, 813 (Tex. App.—Fort Worth 2001, orig. proceeding) (holding the

exclusion of fact witnesses, exhibits, proposed jury instructions, definitions, and questions that

would prevent party from presenting the merits of his affirmative defenses at trial was tantamount

to striking the party’s pleadings); Revco, D.S., Inc. v. Cooper, 873 S.W.2d 391, 396-97 (Tex.

App.—El Paso 1994, no writ) (concluding the exclusion of expert testimony as a discovery

sanction deprived the defendants of a meaningful trial on the merits and therefore required a death

penalty sanction analysis).

       Death penalty sanctions are limited by constitutional due process. Transamerican, 811

S.W.2d at 917. “[A] death penalty sanction cannot be used to adjudicate the merits of claims or

defenses unless the offending party’s conduct during discovery justifies a presumption that its

claims or defenses lack merit.” Paradigm Oil, Inc. v. Retamco Operating, Inc., 372 S.W.3d 177,

184 (Tex. 2012). Before assessing death penalty sanctions, trial courts must first consider the

availability of less stringent sanctions and whether such lesser sanctions would be adequate to
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promote compliance, deterrence, and punishment of the offender. Chrysler Corp., 841 S.W.2d at

849; Transamerican, 811 S.W.2d at 917. The record in such a case must show that the trial court

considered the availability of less stringent sanctions, and in all but the most exceptional cases,

that the trial court tested a less stringent sanction before striking a party’s pleadings. Cire v.

Cummings, 134 S.W.3d 835, 842 (Tex. 2004); GTE Commc’n Sys. Corp. v. Tanner, 856 S.W.2d

725, 730 (Tex. 1993). To show that the trial court has considered less stringent sanctions, “the

record should contain some explanation of the appropriateness of the sanctions imposed.” Spohn

Hosp. v. Mayer, 104 S.W.3d 878, 883 (Tex. 2003).

       2. Discussion

       In this case, Micah argues the trial court’s judgment must be reversed because “the record

from the trial court does not evidence any consideration by the trial court of lesser sanctions prior

to dismissing [a]ppellant’s suit for modification.” We agree with Micah’s argument. The record

fails to show the trial court either tested or considered less stringent sanctions before imposing

death penalty sanctions.

       First, the record fails to show the trial court tested less stringent sanctions. In other words,

the record fails to show that the trial court attempted to obtain Micah’s compliance with the

discovery rules by imposing a less stringent sanction before imposing death penalty sanctions. The

record contains no previous orders sanctioning Micah for discovery abuse. The agreed scheduling

order does not qualify as an order imposing a less stringent sanction. The agreed scheduling order,

which simply ordered both parties to comply with all outstanding discovery requests by May 31,

2011, imposed no discovery sanction. See Chasewood Oaks Condos. Homeowners Assoc., Inc.,

977 S.W.2d 840, 845 (Tex. App.—Fort Worth 1998, pet. denied) (concluding trial court tested

lesser sanctions by threatening appellant with dismissal at least three times, issuing at least three



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orders to comply with discovery, and staying all of appellant’s discovery against appellee until the

appellee’s requests were fully met).

       Second, the record fails to show the trial court considered less stringent sanctions before

imposing death penalty sanctions. When the trial court granted Christine’s motion, it failed to

explain the appropriateness of imposing death penalty sanctions. See Response Time, Inc. v.

Sterling Commerce (N. Am.), Inc., 95 S.W.3d 656, 662-63 (Tex. App.—Dallas 2002, no pet.)

(affirming judgment for death penalty sanctions when the record showed the trial court thoroughly

analyzed and considered the imposition of lesser sanctions and explained why the imposition of

lesser sanctions was not appropriate). We, therefore, must hold that the trial court erred in imposing

death penalty sanctions without first testing or considering less stringent sanctions. See Welex v.

Broom, 823 S.W.2d 704, 709 (Tex. App.—San Antonio 1992, writ denied) (reversing death

penalty sanctions judgment when the trial court failed to test or consider less stringent sanctions).

       In responding to Micah’s argument on appeal, Christine does not assert that the trial court

tested or considered less stringent sanctions. Instead, Christine asserts the trial court’s judgment

should be affirmed because Micah “wholly, intentionally, and blatantly” refused to participate in

the discovery process. There is ample evidence in the record to support a finding that Micah’s

abuse of the discovery process was intentional and blatant. But even when a party engages in

intentional and blatant discovery abuse, the trial court is still required, at a minimum, to consider

less stringent sanctions on the record before imposing death penalty sanctions. See Cire, 134

S.W.3d at 842; GTE Commc’n Sys. Corp., 856 S.W.2d at 730.

       Christine further argues the sanctions imposed were authorized under Rule 193.6 of the

Texas Rules of Civil Procedure. Rule 193.6(a) provides that “[a] party who fails to make, amend,

or supplement a discovery response in a timely manner may not introduce in evidence the material

or information that was not timely disclosed, or offer the testimony of a witness (other than a
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named party) who was not timely identified” unless the trial court finds good cause for the delay

or the absence of unfair prejudice to the requesting party. TEX. R. CIV. P. 193.6(a). Thus, Rule

193.6 operates to exclude “material or information that was not timely disclosed” and the

testimony of witnesses, “other than a named party,” who were “not timely identified.” See id. The

Transamerican death penalty sanction analysis does not apply to evidence that is excluded

pursuant to rule 193.6. White v. Perez, No. 02-09-00251-CV, 2010 WL 87469, at *2 (Tex. App.—

Fort Worth 2010, pet. denied); see Campos v. State Farm Gen. Ins. Co., 943 S.W.2d 52, 55 (Tex.

App.—San Antonio 1997, writ denied) (concluding Transamerican death penalty sanction

analysis was inapplicable when the trial court excluded expert testimony on attorney’s fees because

the expert was not timely disclosed under former Texas Rule of Civil Procedure 215(5)).

       We conclude the sanctions imposed in this case are not the type of sanctions contemplated

under rule 193.6. The trial court did not exclude specific material or information that was not

timely disclosed; instead, it prohibited Micah from presenting any and all documentary or other

evidence in support of his case. In addition, the trial court prohibited Micah from calling any and

all witnesses—including himself—at trial, even though rule 193.6 expressly states that it does not

apply to the testimony of named parties. Moreover, in responding to the request for disclosure,

Micah identified multiple fact witnesses and an expert witness. The trial court prohibited Micah

from calling these witnesses as well. Thus, the trial court’s sanctions were clearly beyond the scope

of rule 193.6. See Bledsoe, 41 S.W.3d at 813 (holding that an order excluding evidence was

tantamount to striking the party’s pleadings and therefore required a death penalty sanction

analysis); Revco, 873 S.W.2d at 396-97 (holding that a death penalty sanction analysis was

required when the exclusion of expert testimony as a discovery sanction deprived the defendants

of a meaningful trial on the merits).



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       Because we must reverse the portions of the sanctions judgment striking Micah’s

pleadings, prohibiting Micah from presenting all evidence and witnesses, and denying and

dismissing Micah’s suit, we also reverse the portion of the sanctions judgment requiring Micah to

pay all expenses, court costs, and attorney’s fees borne by Christine in this matter. When the trial

court ordered Micah to pay all expenses, court costs, and attorney’s fees borne by Christine in this

matter, it did so over Micah’s objection. In addition, when the trial court imposed these monetary

sanctions, it was under the impression that it was disposing of Micah’s entire suit.

       Again, we emphasize that the trial court did not err in its decision to sanction Micah for

abusing the discovery process. Rather, the trial court erred in assessing death penalty sanctions

without first testing or considering less stringent sanctions, and in assessing expenses, court costs,

and attorney’s fees beyond that which Christine incurred as a result of Micah’s discovery abuses.

                                    FAIR AND IMPARTIAL TRIAL

       In his second issue, Micah complains that the trial judge’s conduct, particularly remarks

made by the trial judge during the sanctions hearing, prevented him from receiving a fair and

impartial hearing. A trial judge has broad discretion in conducting the proceedings before him.

Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240-41 (Tex. 2001). In exercising this discretion, a

trial judge has the authority to express himself. Id. Judicial remarks made during the course of a

hearing that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases,

ordinarily do not support a bias or partiality challenge. Id. at 240 (citing Liteky v. United States,

510 U.S. 540, 555 (1994)). Expressions of impatience, dissatisfaction, annoyance, and even anger

do not establish bias or partiality. Id. A judge’s ordinary efforts at courtroom administration—even

if stern or short-tempered—usually do not establish bias or partiality. Id. Moreover, to preserve a

complaint about judicial conduct for review, an objection to the conduct must be made in the trial

court at the time the conduct occurs. Id. at 241; see also TEX. R. APP. P. 33.1(a).
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       In this case, Micah failed to raise his complaint in the trial court. Micah has therefore

waived his complaint on appeal.

                                            CONCLUSION

       We reverse the trial court’s judgment and remand this cause to the trial court for

proceedings consistent with this opinion.

                                                        Karen Angelini, Justice




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