                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-17-00145-CV

TIM LEVASSEUR AND KRISSY LEVASSEUR,
INDIVIDUALLY, AND D/B/A LIBERTY COIN,
                                                             Appellants
v.

STEVE AVEZZANO,
                                                             Appellee



                          From the County Court at Law
                               Ellis County, Texas
                            Trial Court No. 15-C-3523


                          MEMORANDUM OPINION


       Steve Avezzano filed suit against Tim and Krissy Levasseur, individually and

d/b/a Liberty Coin, alleging causes of action for theft, fraud, conversion, DTPA, breach of

contract, and quantum meruit. The trial court issued an order striking the Levasseurs’
only pleading1 as a discovery sanction. The trial court later entered judgment in favor of

Avezzano. We affirm.

                                         BACKGROUND FACTS

        Tim Levasseur, d/b/a Liberty Coin, purchased gold and coins from Avezzano.

Avezzano testified that in February 2015 and April 2015, he sent coins to Levasseur in

accordance with their agreement, but Levasseur did not send payment for the coins.

Avezzano requested Levasseur to pay for the coins or return them. After not receiving

payment or return of the coins, Avezzano filed suit on August 31, 2015 against the

Levasseurs seeking the price of the coins, $200,000, in damages. On September 30, 2015,

the Levasseurs filed special exceptions to the petition. The Levasseurs did not file any

other pleadings.

        On December 21 2015, the parties entered into a settlement agreement where the

Levasseurs would pay Avezzano $200,000 in certain installments. The Levasseurs paid

the first installment of $25,000 to Avezzano as part of the agreement, but failed to make

the rest of the payments. Avezzano proceeded with the lawsuit and attempted discovery.

        Beginning in August 2016, the Levasseurs failed to appear at noticed depositions.

On November 2, 2016, Avezzano filed a motion for sanctions against the Levasseurs for

failing to attend the numerous properly noticed depositions. On November 30, 2016, the



1Both of the Levasseurs filed Defendant’s Special Exceptions to Plaintiff’s Petition. Neither the Levasseurs
nor Liberty Coin filed a general denial or any other response to Plaintiff’s Petition. Neither of the
Levasseurs obtained a hearing on their special exceptions or obtained a ruling on same.

Levasseur v. Avezzano                                                                                Page 2
trial court granted the motion for sanctions and ordered the Levasseurs to pay costs and

attorney’s fees. The trial court also warned the Levasseurs that any further failure to

comply could result in the striking of their pleadings. On December 1, 2016, Avezzano’s

attorney sent deposition notices to the Levasseurs for December 6, 2016. The Levasseurs

again failed to appear, and Avezzano filed a second motion for sanctions. The trial court

granted the motion for sanctions, ordered the Levasseurs to pay costs and attorney’s fees,

and struck their pleadings. The trial court further entered a default judgment against the

Levasseurs as to liability. The trial court ordered that the cause would remain on the trial

docket for January 31, 2017, where Avezzano could appear and offer proof of damages,

costs, and attorney’s fees. The Levasseurs were provided with notice of the January 31,

2017 trial setting.

       On January 31, 2017, the Levasseurs failed to appear for trial, but their attorney

was present. The trial court awarded Avezzano $175,000 in damages and also awarded

attorney’s fees.

                                STRIKING THE PLEADINGS

       In the first issue, the Levasseurs argue that the trial court erred in granting “death

penalty” sanctions. A trial court's ruling on a motion for sanctions is reviewed under an

abuse of discretion standard. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004); Downer

v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985). The test for an abuse of

discretion is not whether, in the opinion of the reviewing court, the facts present an


Levasseur v. Avezzano                                                                  Page 3
appropriate case for the trial court's action, but "whether the court acted without

reference to any guiding rules and principles." Downer v. Aquamarine Operators, Inc., 701

S.W.2d at 241. The trial court's ruling should be reversed only if it was arbitrary or

unreasonable. Cire v. Cummings, 134 S.W.3d at 839.

       Rule 215.2 of the Texas Rules of Civil Procedure provides that if:

               a party fails to comply with proper discovery requests or to obey an
       order to provide or permit discovery, … the court in which the action is
       pending may, after notice and hearing, make such orders in regard to the
       failure as are just, and among others the following:

              (1) an order disallowing any further discovery of any kind or of a
       particular kind by the disobedient party;
              (2) an order charging all or any portion of the expenses of discovery
       or taxable court costs or both against the disobedient party or the attorney
       advising him;
              (3) an order that the matters regarding which the order was made or
       any other designated facts shall be taken to be established for the purposes
       of the action in accordance with the claim of the party obtaining the order;
              (4) an order refusing to allow the disobedient party to support or
       oppose designated claims or defenses, or prohibiting him from introducing
       designated matters in evidence;
              (5) an order striking out pleadings or parts thereof, or staying further
       proceedings until the order is obeyed, or dismissing with or without
       prejudice the action or proceedings or any part thereof, or rendering a
       judgment by default against the disobedient party;
              (6) in lieu of any of the foregoing orders or in addition thereto, an
       order treating as a contempt of court the failure to obey any orders except
       an order to submit to a physical or mental examination;
              (7) when a party has failed to comply with an order under Rule 204
       requiring him to appear or produce another for examination, such orders
       as are listed in paragraphs (1), (2), (3), (4) or (5) of this subdivision, unless
       the person failing to comply shows that he is unable to appear or to produce
       such person for examination.
              (8) In lieu of any of the foregoing orders or in addition thereto, the
       court shall require the party failing to obey the order or the attorney
Levasseur v. Avezzano                                                                      Page 4
       advising him, or both, to pay, at such time as ordered by the court, the
       reasonable expenses, including attorney fees, caused by the failure, unless
       the court finds that the failure was substantially justified or that other
       circumstances make an award of expenses unjust. Such an order shall be
       subject to review on appeal from the final judgment.

TEX. R. CIV. P. 215.2 (b).

       Discovery sanctions must be just. TransAmerican Natural Gas Corp. v. Powell, 811

S.W.2d 913, 917 (Tex. 1991). The Texas Supreme Court has set out a two-part standard to

determine if the imposition of sanctions is just.

       First, a direct relationship must exist between the offensive conduct and the
       sanction imposed. This means that a just sanction must be directed against
       the abuse and toward remedying the prejudice caused the innocent party.
       It also means that the sanction should be visited upon the offender. 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. The point is, the sanctions the trial court imposes must
       relate directly to the abuse found.

       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 purposes. It follows that
       courts must consider the availability of less stringent sanctions and whether
       such lesser sanctions would fully promote compliance.

TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d at 917.

       In the first motion for sanctions, Avezzano detailed each of his numerous attempts

to take the depositions of the Levasseurs. At the hearing on the motion, the Levasseurs’
Levasseur v. Avezzano                                                                  Page 5
attorney offered explanations for some of the missed depositions. Levasseurs’ counsel

also made clear that the Levasseurs were aware of some of the deposition dates and chose

not to appear. Further, counsel also did not dispute that the Levasseurs breached the

Rule 11 Agreement. The Levasseurs did not appear at the hearing on November 30, 2016.

After hearing from counsel, the trial court declined to sanction the Levasseurs’ counsel,

but imposed sanctions against the Levasseurs by ordering them to pay costs as provided

in Rule 215.2 (b). The trial court further warned that if the Levasseurs failed to appear at

another deposition “I will seriously consider striking their pleadings at that time.”

       Shortly after the November 30, 2016 hearing, Avezzano’s counsel sent deposition

notices for December 6, 2016. Once again, the Levasseurs did not attend. Avezzano then

filed a second motion for sanctions. At the January 31, 2017 hearing, the Levasseurs’

counsel stated that the Levasseurs were given notice of the depositions, but did not

appear. Counsel did not offer any reason for the Levasseurs’ failure to appear, and they

were again not present at the hearing.

       The trial court is not required to make a specific finding that the party (as opposed

to the attorney) abused the discovery process to impose sanctions. Van Es v. Frazier, 230

S.W.3d 770, 777 (Tex. App. —Waco, 2007, pet. den’d). Rather, the entire record must be

reviewed to determine whether sanctions were warranted. Id. The trial court had an

extensive list of failures to appear by the Levasseurs that explained in detail each missed

deposition. Counsel appeared and explained some of the failures to appear and his


Levasseur v. Avezzano                                                                   Page 6
responsibility in them. The record shows that the Levasseurs were personally aware of

the discovery abuses. The record supports a finding that the sanction was directed at the

offensive conduct.

       The record shows that the trial court assessed lesser sanctions at the hearing on

the first motion for sanctions by ordering the Levasseurs to pay the costs associated with

the missed depositions and attorney’s fees. The trial court warned that it would consider

striking their pleadings if the Levasseurs failed to appear again. A warning is a lesser

sanction. Lockhart v. McCurley, No. 10-11-00073-CV, 2013 Tex. App. LEXIS 4075, at * 17

(Tex. App. —Waco, March 28, 2013, no pet.) (mem. op); Van Es v. Frazier, 230 S.W.3d at

783. Neither of the sanctions imposed by the trial court at the either hearing were

excessive.   We find that the trial court did not abuse its discretion in striking the

Levasseurs’ pleadings. We overrule the first issue.

                                    PROOF OF CLAIMS

       In the second issue, the Levasseurs argue that the trial court erred in granting

judgment for Avezzano as a matter of law at the hearing on Avezzano’s second motion

for sanctions. They contend that Avezzano sought damages for multiple causes of action,

including theft, fraud, conversion, DTPA, breach of contract, and quantum meruit, but

did not establish as a matter of law the necessary elements for any of them.

       The Levasseurs argue that Avezzano must offer evidence to support its claims as

it would in a judgment resulting from trial citing Stoner v. Thompson, 578 S.W.2d 679 (Tex.


Levasseur v. Avezzano                                                                Page 7
1979) as authority. However, default judgments are not all alike and different rules apply

in different circumstances. Paradigm Oil, Inc. v. Retamco Operating, Inc., 372 S.W.3d 177,

183 (Tex. 2012). A default judgment caused by a defendant's failure to answer after

service is treated differently from a default judgment caused by a defendant's failure to

appear for trial after answering a suit. Id. In the latter instance, a post-answer default

"constitutes neither an abandonment of the defendant's answer nor an implied confession

of any issues thus joined by the defendant's answer." Id. Because the merits of the

plaintiff's claim remain at issue, judgment cannot be rendered on the pleadings, and the

plaintiff must prove its claim. Id. By contrast, the non-answering party in a no-answer

default judgment is said to have admitted both the truth of facts set out in the petition

and the defendant's liability on any cause of action properly alleged by those facts. Id.

The defendant's default thus establishes liability, but a trial may still be necessary if the

plaintiff's damages are unliquidated. Id. And as a general rule, a defendant who has not

answered but nevertheless appears at the post-default hearing on damages is entitled to

participate. Id.

       The order granting Avezzano’s Second Motion for Sanctions specifically granted

a default judgment against the Levasseurs as to liability only, as expressly authorized

under Rule 215.2 of the Texas Rules of Civil Procedure. In so doing, the trial court

adjudicated the merits of Avezzano’s claims. See Paradigm Oil, Inc. v. Retamco Operating,

Inc., 372 S.W.3d at 184. Further, the Levasseurs, by not filing an answer and by virtue of


Levasseur v. Avezzano                                                                  Page 8
having their only pleadings stricken for discovery abuse, were non-answering

defendants. Because the Levesseurs were non-answering defendants, Avezzano was not

required to offer evidence in support of his liability claims. Paradigm Oil, Inc. v. Retamco

Operating, Inc., 372 S.W.3d at 183.      As non-answering defendants, the Levasseurs

admitted the truth of the facts set out in the petition and the defendant's liability on any

cause of action properly alleged by those facts. Id.

       The Levasseurs were entitled to appear at the post-default hearing on damages,

and their attorney appeared on their behalf. Avezzano proved his entitlement to the

unliquidated damages by testimony establishing the value of the coins at $200,000. The

Levasseurs were entitled to a $25,000 credit from the payment pursuant to the Rule 11

Settlement Agreement. Avezzano’s attorney testified as to the attorney’s fees and costs.

        We overrule the second issue.

                                        CONCLUSION

       We affirm the trial court’s judgment.




                                                 JOHN E. NEILL
                                                 Justice




Levasseur v. Avezzano                                                                 Page 9
Before Justice Davis,
       Justice Neill, and
       Judge Coley2
Affirmed
Opinion delivered and filed August 7, 2019
[CV06]




2   The Honorable Judge Gary Coley, Judge of the 74th District Court, sitting by assignment of the Chief
Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 74.003(a) (West 2013).


Levasseur v. Avezzano                                                                           Page 10
