                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-17-00208-CV


                 SABRINA K. GRIGGS, TRUSTEE OF THE GLORIA A.
                 GRIGGS REVOCABLE LIVING TRUST, APPELLANT

                                           V.

    DALHART BUTANE & EQUIPMENT CO., LTD., ETTER WATER WELL, LLC,
      D/B/A ETTER WATER WELL SERVICE AND DALE BALL, APPELLEES

                          On Appeal from the 84th District Court
                                  Ochiltree County, Texas
                Trial Court No. 14123, Honorable Curt Brancheau, Presiding

                                     June 25, 2019

                           MEMORANDUM OPINION
                 Before QUINN, C.J., and CAMPBELL and PARKER, JJ.


      Dalhart Butane & Equipment Company, Ltd. (DBE) sued Sabrina Griggs, trustee

of the Gloria A. Griggs Revocable Trust (Griggs), to foreclose a mechanic’s lien on trust

property. Griggs answered and filed a counterclaim. With leave of court Griggs joined

Etter Water Well Service, LLC and its employee or agent, Dale Ball, as third-party

defendants. Etter filed a counterclaim against Griggs. DBE’s claim against Griggs, and

Griggs’ counterclaim, were both resolved in favor of DBE through death-penalty sanctions
against Griggs for discovery abuse. Through a hybrid motion Etter and Ball obtained

summary judgment against Griggs on Griggs’ claim for damages and on Etter’s

counterclaim for damages.      The court incorporated its rulings into a final judgment

resolving all claims. Griggs appeals. The judgment will be reversed in part and otherwise

affirmed.


                                       Background


       According to Griggs, DBE improperly drilled an irrigation well on trust property in

Ochiltree County, and did not complete the well on time, causing Griggs to lose a crop.

Griggs refused to pay DBE for its work, prompting DBE’s suit, and Griggs’ counterclaim.

DBE served Griggs with interrogatories and requests for production “concerning the

claims and damages alleged in” Griggs’ counterclaim. Following DBE’s motion to compel

and for attorney’s fees, on July 14, the court signed an order requiring Griggs to respond,

without objection, to DBE’s written discovery and within ten days pay DBE attorney’s fees

of $1,100. Griggs did not pay the $1,100.


       Griggs served responses to DBE’s discovery requests but DBE believed them

inadequate.    After July 29 correspondence to Griggs identifying the four specific

deficiencies it found in Griggs’ responses and demanding their correction, DBE filed a

second motion to compel and request for sanctions on August 26. The motion pointed

out that Griggs had not paid the $1,100 sanction ordered on July 14, and requested that

Griggs’ counterclaim be struck. In a written response, Griggs argued there could be no

consideration of lesser sanctions on submission only, that death-penalty sanctions could




                                            2
not be used to adjudicate the merits of a defense, and that she had named two experts

with written opinions disputing the adequacy of the well DBE drilled.


       On November 21, the trial court conducted a short live hearing. The court heard

only from counsel. Counsel for DBE gave a brief assessment of the merits of the case

from DBE’s perspective. He asked to have Griggs’ counterclaim struck because she had

not provided evidence of damages and DBE’s liability. Counsel added that DBE did not

seek death-penalty sanctions on the entire case. Griggs could still “put on a defense to

our lien foreclosure case.” Besides requesting Griggs’ counterclaim be struck, DBE’s

counsel asked for a monetary sanction of $6,600 consisting of the yet unpaid $1,100

awarded on July 14, plus current attorney’s fees, and travel expenses.


       On December 1, the court signed an order dismissing Griggs’ counterclaims with

prejudice and awarding DBE $6,600. It further ordered: “If [Griggs] fails to pay the above

specified sum to [DBE] within ten (10) days, then Final Judgment shall be entered in favor

of DBE and against [Griggs].”


       On December 23, DBE filed its “motion for entry of final judgment.” It alleged

Griggs had not paid the $6,600 sanction awarded on December 1 and requested rendition

of a final judgment for damages, lien foreclosure, and attorney’s fees. On December 27,

the court signed an order granting all the relief requested by DBE. The record indicates

that in February 2017 Griggs deposited $6,600 in the registry of the court which DBE was

later permitted to withdraw.


       Etter’s claim against Griggs alleged she did not fully pay Etter for drilling test wells.

Griggs’ pleadings alleged Etter was vicariously liable for DBE’s actions with regard to the


                                               3
well it drilled. Griggs alleged Etter thus was jointly and severally liable for the damage-

producing conduct of DBE.


       Etter and Ball filed a hybrid motion for summary judgment on January 12, 2017.

In part, they alleged because Griggs’ claims against them were derivative of those against

DBE and because judgment was for DBE on the same claims, Griggs’ derivative claims

against Etter and Ball could not succeed as a matter of law. Concerning Griggs’ failure

to fully pay for test wells, Etter sought a money judgment and an award of attorney’s fees.


       The court granted Etter’s motion for summary judgment in all respects and

rendered final judgment. This appeal followed.


                                         Analysis


Issues One and Two: Sanctions


       Through her first and second issues, Griggs challenges the justness of the trial

court’s December 1 sanctions order, striking her counterclaim, and the December 27

sanctions order, rendering judgment for DBE.


       An appellate court reviews a trial court’s ruling on a motion for sanctions under an

abuse of discretion standard. Bodnow Corp. v. City of Hondo, 721 S.W.2d 839, 840 (Tex.

1986) (per curiam). A trial court abuses its discretion when it acts without reference to

any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d

238, 241 (Tex. 1985).


       Sanctions for discovery abuse serve three legitimate purposes: to secure

compliance with the discovery rules; to deter other litigants from similar misconduct; and


                                            4
to punish violators. Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex. 1992) (orig.

proceeding). A sanction under Texas Rule of Civil Procedure 215 must be “just.” TEX. R.

CIV. P. 215.2(b); TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex.

1991) (orig. proceeding). A sanction’s justness depends on two factors. Chrysler Corp.,

841 S.W.2d at 849. “First, there must be a direct nexus among the offensive conduct, the

offender, and the sanction imposed.” Spohn Hosp. v. Mayer, 104 S.W.3d 878, 882 (Tex.

2003) (per curiam) (citing TransAmerican, 811 S.W.2d at 917). “A just sanction must be

directed against the abuse and toward remedying the prejudice caused to the innocent

party, and the sanction should be visited upon the offender.” Id. “The trial court must

attempt to determine whether the offensive conduct is attributable to counsel only, to the

party only, or to both.” Id. A trial court may not, however, impose a sanction that is more

severe than necessary to satisfy its legitimate purpose. Hamill v. Level, 917 S.W.2d 15,

16 (Tex. 1996) (per curiam).


      “Second, just sanctions must not be excessive. The punishment should fit the

crime. A sanction imposed for discovery abuse should be no more severe than necessary

to satisfy its legitimate purpose.” TransAmerican, 811 S.W.2d at 917. “[C]ourts must

consider the availability of less stringent sanctions and whether such lesser sanctions

would fully promote compliance.” Id. A “death-penalty sanction” is any sanction that

adjudicates a claim and precludes presentation of the case on its merits. Davenport v.

Scheble, 201 S.W.3d 188, 193 (Tex. App.—Dallas 2006, pet. denied). Imposition of a

death-penalty sanction is especially concerning because in doing so a court renders

judgment without considering the case’s merits. Hamill, 917 S.W.2d at 16. In short, “[t]he

hallmarks of due process for sanctions awards are that they be just and not excessive.”


                                            5
Nath v. Tex. Children’s Hosp., 446 S.W.3d 355, 365 (Tex. 2014) (citing TransAmerican,

811 S.W.2d at 917).


      Rule 215.2(b)(5) provides in instances where a party fails to comply with a

discovery order or request a trial court may render as a sanction an order “striking out

pleadings or parts thereof, staying the action until the order is obeyed, dismissing the

action with or without prejudice, or rendering judgment by default against the disobedient

party.” TEX. R. CIV. P. 215.2(b)(5). “When a trial court strikes a party’s pleadings and

dismisses its action or renders a default judgment against it for abuse of the discovery

process, the court adjudicates the party’s claims without regard to their merits but based

instead upon the parties’ conduct of discovery.” TransAmerican, 811 S.W.2d at 918.


      The Constitution limits a court’s power to dismiss a case without giving a party the

opportunity for a hearing on the merits of its cause. Id. Accordingly, death-penalty

sanctions “should not be assessed absent a party’s flagrant bad faith or counsel’s callous

disregard for the responsibilities of discovery under the rules.” TransAmerican, 811

S.W.2d at 918. And due process compels that a death-penalty sanction may not be used

to adjudicate the merits of a claim or defense unless the offending party’s conduct during

discovery justifies a presumption that her claims or defenses lack merit. Paradigm Oil,

Inc. v. Retamco Operating, Inc., 372 S.W.3d 177, 184 (Tex. 2012) (citing TransAmerican,

811 S.W.2d at 918). “However, if a party refuses to produce material evidence, despite

the imposition of lesser sanctions, the court may presume that an asserted claim or

defense lacks merit and dispose of it.” TransAmerican, 811 S.W.2d at 918.




                                            6
       Before imposing a death-penalty sanction, a trial court must first consider the

availability of less stringent sanctions and whether a lesser sanction would adequately

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 cases must demonstrate the trial court’s consideration of less

stringent sanctions, and in all but the most exceptional cases, that the court tested a less

stringent sanction before striking the offending party’s pleading. Cire v. Cummings, 134

S.W.3d 835, 842 (Tex. 2004); GTE Communications Sys. Corp. v. Tanner, 856 S.W.2d

725, 730 (Tex. 1993) (orig. proceeding). For that reason, “the record should contain some

explanation of the appropriateness of the sanctions imposed.” Spohn Hosp., 104 S.W.3d

at 883.


Issue One: December 1 Order


       By her first issue, Griggs contends the court erred by striking her counterclaim

against DBE. We will overrule the issue.


       At the November 21 hearing, DBE’s argument that Griggs had failed to comply

completely with the court’s July 14 order was not disputed. The discovery DBE sought

related directly to its defense of Griggs’ claims for damages allegedly caused by the

untimely completion of the well and its contamination. One topic addressed at the hearing

concerned whether Griggs’ failure to do so was attributable to Griggs or to conduct of her

counsel. From the presentations the court heard, it reasonably could have concluded the

fault lay with Griggs. The record reflects the required nexus among the offensive conduct,

the offender and the sanction. Spohn Hosp., 104 S.W.3d at 882.


                                             7
       We find the court also could have determined Griggs’ failure to produce documents

supporting her crop damage claim justified a presumption that claim lacked merit. See

Paradigm Oil, 372 S.W.3d at 184; TransAmerican, 811 S.W.2d at 918; 5 Star Diamond,

LLC v. Singh, 369 S.W.3d 572, 578 (Tex. App.—Dallas 2012, no pet.) (discovery

sanctions may be used to adjudicate merits of a party’s claims only when the party’s

hindrance of the discovery process justifies a presumption that its claims lack merit) (citing

Cire, 134 S.W.3d at 841).       Griggs’ pleadings alleged some twenty acres required

replanting because of the delayed completion of the well, and yielded only 60 bushels of

corn an acre compared with the 160-bushel yield of the balance of the quarter section.

She alleged a sales price of $3.89 per bushel, resulting, she alleged, in a $7,780 loss,

plus seed and planting expense. She further alleged she was unable to plant a crop on

another tract of 109 acres, resulting in the loss of 17,440 bushels, worth $67,841.60, for

a total loss for the 2015 crop year of $75,621.60. Griggs’ counsel agreed her pleadings

alleged a “specific crop loss by acre,” and that DBE had requested production of

documents typically used for proof of such claims, such as “the receipts for the other corn

that was harvested.” Counsel was able to express no reason for Griggs’ failure to produce

such common documents.


       In a reply brief in this court, Griggs contends the court heard no evidence that she

possessed information she did not provide. See Tanner, 856 S.W.2d at 729 (when motion

for sanctions asserts respondent has failed to produce document within its possession,

custody or control, movant has burden to prove the assertion). We see no abuse of

discretion in the trial court’s implicit conclusion that a landowner engaged in farming of




                                              8
the scope Griggs alleged has within her possession, custody or control documents to

support an allegation she sold a corn crop for $3.89 per bushel.1


       As for whether death-penalty sanctions were excessive, the determinative

question is whether a lesser sanction would have served the purposes of compliance,

deterrence, and punishment. TransAmerican, 811 S.W.2d at 917; 5 Star Diamond, LLC,

369 S.W.3d at 579. The court unsuccessfully attempted to secure Griggs’ compliance by

ordering responses and assessing a monetary sanction.            The insufficiency of her

responses was, as we have noted, undisputed at the November 21 hearing.


       The court heard also, without dispute, a recitation of DBE’s efforts to obtain the

documents, including letters to Griggs’ counsel; a response after DBE filed its first motion

to compel that produced “[not] much of anything”; the court’s grant of the first motion to

compel with monetary sanctions and responses ordered in ten days; additional

correspondence to counsel after the expiration of the ten days, resulting in a failed

promise of a response in a week; Griggs’ provision after DBE filed its second motion to

compel of “partial answers to interrogatories,” but nothing bearing on the “big loss” Griggs

claimed, the crop damage, or bearing on actual damage or contamination to the well.

Those claims were the foundation of Griggs’ counterclaim, and the focus of the discovery

dispute.




       1  Griggs’ discovery responses reported both her original damage calculation,
contained in her pleadings, and a “[r]evised calculation, based on revised yield, based on
total acres in field that was planted deducting damaged acreage. 110 acres of irrigated
corn at 180 bu / acre = 19,800 bushels.”

                                             9
       Discovery in the case was conducted under Level 2. TEX. R. CIV. P. 190.3. The

record contains no trial setting and there is no indication any oral depositions were

conducted. The first response date for written discovery was April 8, 2016, the deadline

for Griggs to respond to DBE’s interrogatories and requests for production. Thus the

discovery period in the case was to conclude on January 9, 2017.


       By November 21, the allotted discovery period was almost completed. Griggs’

recalcitrance in answering what counsel agreed were “standard” discovery requests had

already, inordinately, consumed the time of the parties’ counsel and the trial court. As

against Griggs’ contention the court was required first to try some other avenue to secure

responses to “standard” written discovery requests bearing on her counterclaim, on the

record presented, we find the death-penalty sanction the court imposed on the

counterclaim against DBE through the December 1 order was not excessive. Because

the sanction imposed was directly related to Griggs’ improper conduct and was not

excessive, and because we presume by Griggs’ conduct her counterclaim lacked merit,

we overrule Griggs’ first issue.


Issue Two: Sanction Entering Judgment


       By her second issue, Griggs argues the trial court erred by entering judgment in

DBE’s favor as a sanction for her failure to pay attorney’s fees awarded in its November

21 order. We agree, and will sustain the issue.


       After Griggs filed a response opposing DBE’s second motion to compel, DBE filed

a reply that said the sanctions sought by the motion, which included striking Griggs’

counterclaim, “do not deprive Griggs of her opportunity to challenge DBE’s claims.


                                           10
Instead, DBE seeks to strike claims for which Griggs has refused to provide discovery

despite this Court’s order requiring her to do so.” At the outset of the November 21

hearing, DBE reiterated that intention, telling the court, “We’re not seeking death-penalty

sanctions on the entire case. They can still put on a defense to our lien foreclosure

case . . . .” After further discussions, the court granted DBE’s motion to strike Griggs’

counterclaim, ordered additional attorney’s fees and ordered Griggs’ defensive claims

struck if she failed to pay within ten days. Its written order specified that if Griggs failed

to pay $6,600 to DBE within ten days, judgment would be entered in DBE’s favor.


       We are unable to square the court’s order with the requirements for such death-

penalty sanctions. The threatened sanction was not conditioned on a failure to provide

further needed discovery, but merely on the payment of $6,600. We cannot see how

Griggs’ failure to pay the ordered attorney’s fees gives rise to a presumption she had no

meritorious defense to DBE’s lien foreclosure action. See Hamill, 917 S.W.2d at 16 (trial

court may not use death-penalty sanction to deny a litigant a decision on the merits of the

case unless it finds the sanctioned party’s conduct justifies a presumption that its claims

or defenses lack merit); Khan v. Valliani, 439 S.W.3d 528, 535 (Tex. App.—Houston [14th

Dist.] 2014, no pet.) (finding litigant’s failure to pay $400 attorney’s fee revealed nothing

about the truth or merit of her claims).       “Although punishment and deterrence are

legitimate purposes for sanctions, they do not justify trial by sanctions.” TransAmerican,

811 S.W.2d at 918 (citations omitted). We find the death-penalty sanction imposed to

grant DBE a judgment against Griggs constituted such a prohibited “trial by sanctions” in

this case, and thus was excessive.




                                             11
       For those reasons, we find the trial court abused its discretion by entering judgment

for DBE as a sanction. We sustain Griggs’ second issue.


Issue Three


       By her third issue, Griggs contends she is not estopped by the invited error doctrine

to challenge the court’s rulings striking her counterclaim against DBE and later granting

DBE a judgment on its claim. The issue anticipates a contention DBE brings in its brief

on appeal, asserting Griggs’ counsel suggested the relief contained in the December 1

order by his remarks at the November 21 hearing. Because we have found no abuse of

discretion in the court’s order striking Griggs’ counterclaim, we need not address invited

error with respect to that sanction. With regard to Griggs’ second issue challenging the

judgment granted DBE, we agree with Griggs the invited error doctrine has no application.


       It is said in Texas law the invited error doctrine is “grounded in even justice and

dictated by common sense.” Neasbitt v. Warren, 22 S.W.3d 107, 112 (Tex. App.—Fort

Worth 2000, no pet.) (citing Ne. Tex. Motor Lines, Inc. v. Hodges, 138 Tex. 280, 158

S.W.2d 487, 487-88 (Tex. 1942)). The doctrine “applies to situations where a party

requests the court to make a specific ruling, then complains of that ruling on appeal.” In

re Dep’t of Family & Protective Servs., 273 S.W.3d 637, 646 (Tex. 2009) (orig.

proceeding) (citing Tittizer v. Union Gas Corp., 171 S.W.3d 857, 862 (Tex. 2005)).

Consequently, “a party cannot complain on appeal that the trial court took a specific action

that the complaining party requested.” Tittizer, 171 S.W.3d at 862; Dalworth Restoration,

Inc. v. Rife-Marshall, 433 S.W.3d 773, 787 (Tex. App.—Fort Worth 2014, pet. dism’d




                                            12
w.o.j.) (“The invited error doctrine prevents a party from asking for relief from the trial court

and later complaining on appeal that the trial court gave it”).


       From our review of the record, we agree with Griggs that her trial-court lawyer

expressed frustration at the hearing over failures of communication from his client, but

did not invite the court to enter a final judgment against Griggs. With regard to the entry

of a final judgment in the event Griggs failed to pay the $6,600 ordered, counsel’s remarks

at most can be read to agree the court would have the authority to issue such a sanction.

Griggs’ written response to DBE’s second motion to compel pointed out she had named

two experts “with written opinions who dispute the adequacy of the well drilled by [DBE].”

She argued there was no basis to presume her defense to DBE’s claim lacked merit. In

short, the record does not show Griggs requested the court to enter judgment for DBE

against her if she did not timely pay the $6,600 attorney’s fees sanction. We sustain

Griggs’ third issue to the extent we conclude she is not estopped by the invited error

doctrine to challenge the December 27 order on appeal.


Issue Four: Summary Judgment


       Through her fourth issue Griggs challenges the trial court’s grant of summary

judgment in favor of Etter and Ball on their traditional and no evidence motions, which

challenged Griggs’ third-party claims against them.


       The standard and scope of review we apply on the appeal of no evidence and

traditional motions for summary judgment is settled and does not require elaboration.

Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017). We

review the grant of a summary judgment de novo. Valence Operating Co. v. Dorsett, 164


                                               13
S.W.3d 656, 661 (Tex. 2005). We take as true all evidence favorable to the nonmovant,

Binur v. Jacobo, 135 S.W.3d 646, 649 & n.3 (Tex. 2004), and draw every reasonable

inference and resolve all doubts in favor of the nonmovant. Cohen v. Landry’s Inc., 442

S.W.3d 818, 821 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (so holding).


       In her live third-party complaint against Etter and Ball, Griggs alleged she “acquired

goods or services from B[a]ll and Etter Water Well Service by and through Dalhart Butane,

a subcontractor for Etter Water Well Service, which form the basis of her complaint

against B[a]ll and Etter Water Well Service herein.” And Etter was liable for the actions

of DBE under the doctrine of respondeat superior.


       Griggs argues on appeal, “[u]pon reversal of the death penalty sanctions as prayed

for by Griggs, the grounds on which Etter moved for summary judgment would be invalid

and contested and should be remanded for trial.” Because we will affirm the trial court’s

dismissal with prejudice of Griggs’ counterclaims against DBE, the basis for Griggs’

argument fails. The trial court did not err in rendering summary judgment that Griggs take

nothing on her claims against Etter and Ball. Griggs’ fourth issue is overruled.


                                        Conclusion


       The provision of the trial court’s judgment dismissing Griggs’ counterclaim against

DBE is affirmed; all other relief granted in favor of DBE and against Griggs by the trial

court’s judgment is reversed, and DBE’s claims against Griggs are remanded to the trial

court for further proceedings. In all other respects, the trial court’s judgment is affirmed.



                                                         James T. Campbell
                                                            Justice

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