                             NUMBER 13-09-204-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

PETROLEUM SOLUTIONS, INC,                                                  Appellant,

                                          v.

BILL HEAD D/B/A BILL HEAD ENTERPRISES
AND TITEFLEX CORPORATION,                                                Appellees.


                  On appeal from the 398th District Court
                        of Hidalgo County, Texas.


              DISSENTING MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Rodriguez and Vela
          Dissenting Memorandum Opinion by Justice Vela
      I respectfully dissent because I do not believe the death penalty sanctions issued

by the trial court were warranted. In Transamerican Natural Gas Corp. v. Powell, 811

S.W.2d 913 (Tex. 1991), the supreme court set forth the standard governing the

imposition of sanctions. The court indicated that there must be a direct relationship
between the offensive conduct and the sanction imposed, and the sanction imposed

should not be excessive.       Id. at 917.    A sanction must be no more severe than

necessary to satisfy its legitimate purpose and trial courts must consider the availability of

less stringent sanctions and whether such sanctions would fully promote compliance. Id.

A sanction order striking an affirmative defense is tested according to the same

standards, under Transamerican, as the striking of any other pleading. See Lanfear v.

Blackmon, 827 S.W.2d 87, 91 (Tex. App.–Corpus Christi 1992, orig. proceeding); see

also In re Fina Oil and Chem. Co., No. 13-98-640-CV, 1999 WL 33589153 at * 12 (Tex.

App.–Corpus Christi, Mar. 11, 1999, orig. proceeding) (not designated for publication).

       The sanctions meted out in this case included striking most of PSI’s claims and all

of its affirmative defenses. The evidence offered at trial was that Barron took the flex

connector back to his office. In February 2002, Neally, an attorney, came to pick it up.

Barron testified the last time he saw it was when he loaded it in to Neally’s vehicle.

Neally engaged the services of David Hendrix, an engineering expert, to review and

inspect the flex connector. Hendrix admitted receiving a flex hose connector in early

2002. He left it with a laboratory to store. More than four years later, Head discovered

that the underground storage system was leaking and, more than four years later, sued

PSI. PSI’s attorneys asked for the return of the flex connector. Both Hendrix and PSI’s

attorneys looked for the flex connector, but could not find it.          Even Titeflex, the

manufacturer of the underground flex connector, acknowledged in its brief it “has never

contended that misplacement of the flex connector was deliberate or intentional . . . .”

       Under Transamerican, PSI’s failure to locate the flex connector must have some


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relationship to the trial court’s action of striking all of PSI’s affirmative defenses. This

Court, in Fina Oil, opined that that “conduct during discovery has no direct link to the

merits of [defendant’s] affirmative defenses that the relevant limitations period expired . . .

.” See In re Fina, 1999 WL 33589153 at *13. Even though requested to make findings,

the trial court did not articulate what connection there was between the alleged discovery

abuse and the striking of the affirmative defense. And the majority opinion does not

articulate one, either.

       The majority also disregarded PSI’s argument that it should not be punished

because it was its expert who lost the connector. Under the circumstances presented

here, there is no evidence that PSI had anything to do with the failure of the expert to

locate the connector more than four years later.         There is also no support for the

proposition that PSI deliberately misplaced the connector.

       Death penalty sanctions should be only severe enough to satisfy the legitimate

purpose of granting such sanctions. Courts are required to consider the availability of

less stringent sanctions. Here, the majority opinion does not even suggest that lesser

sanctions were imposed first. The trial court also gave no explanation with respect to the

sanctions it did impose. The supreme court has indicated that the record should contain

some explanation of the appropriateness of the sanctions imposed. See Spohn Hosp. v.

Mayer, 104 S.W.3d 878, 883 (Tex. 2003). Discovery sanctions that are so severe that

they inhibit the presentation of the merits of the case should be reserved for a party who

has callously disregarded the responsibilities of discovery under the rules. Id. Here,

PSI was prohibited from properly raising its affirmative defenses, such as limitations,


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which, if proven meritorious, would have prevented Head’s recovery on any issue. While

PSI’s answer was not struck, PSI was absolutely precluded from presenting the merits of

dispositive defenses. The majority’s conclusion that the trial court could have granted

greater sanctions does not lessen the reality that PSI went to trial defenseless. In sum,

the evidence outlined in the majority opinion does not explain conduct that would warrant

the imposition of death penalty sanctions.

        At the very least, this case should be remanded to the trial court to allow the jury to

decide the case based upon PSI’s defenses, in addition to the claims pleaded by the

plaintiff.




                                                   ROSE VELA
                                                   Justice


Delivered and filed the
29th day of April, 2011.




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