       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-18-00362-CV


                                Elizabeth Hernandez, Appellant

                                                 v.

                                  Leonardo Moya II, Appellee


               FROM THE 207TH DISTRICT COURT OF COMAL COUNTY
        NO. C2009-0090B, THE HONORABLE RANDAL C. GRAY, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Elizabeth Hernandez appeals from the trial court’s granting of discovery death-

penalty sanctions striking her pleadings. She also challenges the trial court’s denial of her motion

for new trial after the granting of a default judgment. This appeal followed the trial court’s

default judgment in favor of Leonardo Moya II, the children’s father, on his counter-petition to

modify the parent-child relationship. For the following reasons, we reverse the trial court’s order

and remand this cause for a new trial.


                                         BACKGROUND

               The parties were divorced by a 2011 agreed Decree of Divorce in which

Hernandez and Moya were appointed joint managing conservators with their children’s residence

to be within Comal or Bexar counties. The Court awarded the father an expanded standard

possession order and rendered child support and medical support orders. In March 2016, the

Office of the Attorney General filed a “Notice of Change of Status and Motion for Further
Orders,” with an Order Setting Hearing for May 20, 2016, and requested production from both

parents. When the suit began, the parties’ four children were ages 9, 12, 14, and 16. The Attorney

General alleged that the mother had relinquished to the father primary care and possession of the

middle two children for more than six months. The mother filed a general denial. The father

filed a counter-petition alleging a relinquishment of the two middle children and preference of

primary residence by two of the children over age 12. A Notice of Hearing accompanying the

counter-petition set the case for August 26, 2016, for temporary orders. The father asked to be

awarded the right to designate primary residence of the parties’ three youngest children.

               Each party served discovery; the county court at law signed an Agreed Order on

Motion for Referral to County Court at Law; the parties signed Rule 11 agreements June 21,

2016, regarding discovery served on Moya and on August 26, 2016, regarding detailed temporary

orders; and the trial court signed temporary orders November 4, 2016, granting Moya the

exclusive right to designate the primary residence of the two middle children and Hernandez the

exclusive right to designate the primary residence of the youngest and eldest. On February 10,

2017, the trial court appointed a local therapist to perform a child custody evaluation. On April

5, 2017, a second expert was substituted to do the report after the first therapist asked to be

removed.1

               In January 2017, Moya filed a motion to compel discovery and for sanctions,

alleging that Hernandez had failed to respond to interrogatories, produce requested documents,

and make requested disclosures. Moya’s motion sought an order requiring Hernandez to produce

1
  The evaluation was completed on September 22, 2017 but does not appear to have been filed
with the trial court. Hernandez attached a copy of the report to her motion for new trial. The
forty-page report recommended that Hernandez have the right to designate the primary residence
of the youngest child.


                                                2
the requested documents and responses by February 28 and pay $1,200 in attorney’s fees. The

court granted the motion and made the requested orders. In March 2017, Hernandez’s attorney

provided some documents and discovery responses to Moya’s attorney; some of the responses

contained objections to the information requested.

               In September 2017, Moya filed a second motion to compel discovery and for

sanctions, alleging that Hernandez had failed to pay the ordered attorney’s fees or timely provide

the requested documents and responses and had asserted untimely objections and failed to

remove them. The motion requested that the court strike Hernandez’s pleadings and grant judgment

in favor of Moya. The trial court rendered an order October 20, 2017 on the motion requiring

Hernandez to produce responsive discovery and pay $750 in attorney’s fees by October 27.

               In January 2018, Moya filed a third motion to compel discovery and for sanctions.

This motion alleged that Hernandez failed to provide the ordered discovery by October 27 and

listed several outstanding discovery items (documents responsive to requests for production

(RFPs) 3, 9, 11, and 13) and improper (i.e., “unremoved”) objections to interrogatory (ROG) 14

and RFPs 9 and 13.2 The motion additionally contended that Moya “does not believe” all

documents responsive to RFP 23 had been provided. The motion contained a notice of hearing

set for March 2, 2018 and again sought all “just and right” orders, including the striking of

Hernandez’s pleadings and judgment in favor of Moya.

       2
         RFP 3 sought documents and recordings relating to conservatorship, possession and
access, child support, the children’s health insurance, and attorney’s fees; RFP 9 sought the
children’s school records; RFP 11 sought Hernandez’s Social Security statements since
September 1, 2011; and RFP 13 sought “copies of [Hernandez’s] scheduled work periods since
September 1, 2011.” ROG 14 asked Hernandez to “identify and state the amount of each of your
monthly living expenses in August 2011.”
       3
        RFP 2 sought any physical or electronic writings relating to conservatorship, possession
and access, child support and the children’s health insurance, and attorney’s fees.
                                                3
               Hernandez’s attorney, Tamer Morsi, filed a verified response to Moya’s third

motion to compel on February 28. In it, Morsi averred that (a) Hernandez “previously withdrew

all asserted objections” to Moya’s discovery requests and “provided complete responses” to the

ROGs on October 30, 2017, citing an attached email he sent to Moya’s attorney; (b) Hernandez

“does not have access to or possession of documentation responsive to” RFPs 2, 3, 11, and 13

and “has no information available to provide a response” to ROG 14; and (c) Moya’s attorney

did not confer with him prior to filing the third motion to compel as required by the rules of

civil procedure. Also February 28, Morsi filed a verified motion for continuance of the March 2

hearing on the third motion for sanctions, averring that he did not have child care available for

his disabled son that date and he had attempted to reset the matter with Moya’s attorney for

March 7 but had not received a response.

               The trial court conducted a hearing on Moya’s third motion to compel March 2.

Neither Morsi nor Hernandez appeared. After hearing argument from Moya’s counsel representing

that Morsi had not properly and timely responded to Moya’s various discovery requests, the trial

court admitted into evidence several documents pertaining to Morsi’s discovery correspondence.

The trial court also agreed to “entertain” Moya’s motion to strike Hernandez’s pleadings and to

hear the testimony of Moya. Moya testified about custody issues and the children’s best interests

but did not testify about discovery issues. After Moya’s testimony, the court indicated that it had

a “logistical question” because “[w]e are basically doing a modification hearing right now.” The

court inquired, “Are we going to make this an automatically appealable hearing because we are

not setting the modification separately?” Moya’s attorney replied, “Yes.” The hearing transcript

continues,



                                                4
       Court:                So, what you are asking me to do, No. 1, I previously and
                             officially denied the Motion for Continuance. That’s why
                             we could have the hearing. On the Motion to Quash, you
                             are basically asking for me to quash any of the responses he
                             made?

       Moya’s Counsel:       I’m asking the Court to strike the pleadings of Ms.
                             Hernandez and to grant judgment, which would essentially
                             be a default judgment, which is why we needed the proof
                             for the Court.

       Court:                Exactly. But this is for the best interest of the children. So,
                             it can’t really be a default without having additional
                             information.

       Moya’s Counsel:       Yes.

       Court:                All right. So, the Motion to Compel, are we even going to
                             have any kind of ruling on the Motion to Compel?

       Moya’s Counsel:       I think the Court could find the Motion to Compel facts are
                             true based on the Motion to Compel [and] issue a sanction
                             in the form of striking the pleadings.

                                      Ruling of the Court

       Court:                All right. That will be the order of the Court. By striking
                             the pleadings then we go automatically to the default
                             situation where we can modify the terms and conditions of
                             the custody and conservatorship of the minor children.

                             I find it’s in their best interest that [] Moya be appointed
                             Managing Conservator with the right to determine the
                             residency of the three minor children.


After the hearing, the trial court rendered the Order in Suit to Modify Parent-Child Relationship

(Order) at issue in this appeal, in which the trial court summarized its ruling on Moya’s motion

for sanctions: “Respondent, Elizabeth Hernandez, failed to appear[] and having failed to comply

with the Orders of the Court, had her pleadings stricken and judg[]ment entered.” The Order




                                                5
granted Moya the exclusive right to designate the primary residence of the minor children and

ordered Hernandez to pay Moya monthly child support.

               Upon receiving a copy of the Order,4 Hernandez hired a new attorney to represent

her, who timely filed a “Motion to Set Aside Default Judgment” and motion for new trial on

Hernandez’s behalf. The trial court did not rule on the motion to set aside but denied the motion

for new trial after a non-evidentiary hearing.


                                          DISCUSSION

               In two issues, Hernandez contends that the trial court abused its discretion in

imposing death-penalty discovery sanctions striking her pleadings, which resulted in what was

effectively a default judgment on Moya’s petition to modify, and in denying Hernandez’s motion

for new trial. We review the propriety of the trial court’s striking Hernandez’s pleadings first, as

we find the determination of that issue dispositive of this appeal.

               We review a trial court’s imposition of sanctions for an abuse of discretion.

American Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006) (per curiam) (citing

Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004)). We make that determination based on

our independent review of the entire record. Id. “The legitimate purposes of discovery sanctions

are threefold: 1) to secure compliance with 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). However, discovery sanctions must also be “just.” Tex. R. Civ. P. 215.2(b);



       4
          In her verified motion for new trial, Hernandez averred that she did not receive a copy
of the “default judgment rendered against her” until March 5, 2018, when “she received a call
from her child’s school” because Moya had called to withdraw the child’s enrollment. Moya had
testified at the hearing that he would not withdraw the child but would “let him finish the year”
in his then-current elementary school.
                                                 6
Blackmon, 841 S.W.2d at 849; TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 917

(Tex. 1991) (orig. proceeding).

               The Texas Supreme Court has established a two-prong test to determine whether a

sanction is just. See TransAmerican, 811 S.W.2d at 917; see also American Flood, 192 S.W.3d

at 583 (explaining TransAmerican two-part test). First, a direct relationship must exist between

the offensive conduct and the sanction imposed. American Flood, 192 S.W.3d at 583. “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.”

TransAmerican, 811 S.W.2d at 917. “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.” Id.

Second, sanctions must not be excessive; in other words, the punishment should fit the crime. Id.

A sanction imposed for discovery abuse should be no more severe than necessary to satisfy its

legitimate purposes. Cire, 134 S.W.3d at 839; TransAmerican, 811 S.W.2d at 917. Additionally,

the record must reflect that the trial court considered the availability of less stringent sanctions

and whether such lesser sanctions would fully promote compliance.            GTE Commc’ns Sys.

Corp. v. Tanner, 856 S.W.2d 725, 729 (Tex. 1993). The trial court does not need to test the

effectiveness of all available lesser sanctions by actually imposing them before issuing the death

penalty but must “analyze the available sanctions and offer a reasoned explanation as to the

appropriateness of the sanction imposed.” Cire, 134 S.W.3d at 840.

               “[C]ase-determinative sanctions may only be imposed in ‘exceptional cases’

where they are ‘clearly justified’ and it is ‘fully apparent that no lesser sanctions would promote

compliance with the rules.’” Id. (quoting GTE, 856 S.W.2d at 729–30). Sanctions that are so

severe as to preclude presentation of the merits of a party’s case, i.e., death-penalty sanctions,

                                                 7
“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. Moreover, a

death-penalty sanction should not be used unless the party’s actions justify a presumption that

the case lacks merit. Id. Additionally, “[i]n suits affecting the parent-child relationship, where

the best interest of the child is paramount, striking the pleadings of a parent will rarely, if ever,

be appropriate.” In re F.A.V., 284 S.W.3d 929, 931 (Tex. App.—Dallas 2009, no pet.) (citing

Taylor v. Taylor, 254 S.W.3d 527, 534–35 (Tex. App.—Houston [1st Dist.] 2008, no pet.)). We

note also that the Court had ordered an expert custody evaluation, which was not given weight

with the granting of the discovery sanctions and which differed from the court’s default orders.

               Here, the record does not show that the trial court adhered to the first prong of the

TransAmerican test, which requires a direct relationship among the conduct, the offender, and

the sanction imposed, see id. at 917, because it is not clear whether Hernandez or her attorney

was responsible for the alleged incomplete discovery responses and non-produced documents.

To the contrary, the record implies that it was Hernandez’s attorney, Morsi, who did not properly

and timely respond to discovery requests. For instance, after Moya’s attorney identified for

Morsi via email which particular document requests and interrogatories were still outstanding,

Morsi responded by merely forwarding a prior email he had sent containing attachments

responsive to different requests but not the outstanding ones. Whether Morsi’s response was the

result of inadvertence or “callous disregard,” we cannot tell from this record. In any event, it

was improper for the trial court to impute the discovery non-responsiveness to Hernandez

without proof in the record to support such implication or without inquiring into whether

Hernandez herself was responsible for the non-responsiveness. On this record, we cannot tell that

the sanctions were visited on the actual offender. See Spohn Hosp. v. Mayer, 104 S.W.3d 878,

                                                 8
882 (Tex. 2003) (per curiam) (holding that trial court did not properly apply first prong of

TransAmerican test where there was no evidence of whether client or counsel was responsible

for discovery abuse and noting that neither trial court nor court of appeals discussed whether

counsel or client was responsible); TransAmerican, 811 S.W.2d at 918, 920 (granting mandamus

compelling trial court to set aside order issuing death-penalty sanction where it was not clear

whether party, counsel, or both should be faulted for party’s failure to attend deposition);

Hernandez v. Polley, No. 03-15-00384-CV, 2016 WL 6068259, at *4 (Tex. App.—Austin

Oct. 13, 2016, no pet.) (mem. op.) (concluding that trial court failed to apply properly first prong

of TransAmerican test by “failing to even attempt to ascertain whether [party] or her attorney

was the offending party prior to dismissing the case”); cf. Young v. Young, No. 03-14-00720-CV,

2016 WL 7339117, at *6 (Tex. App.—Austin Dec. 15, 2016, no pet.) (mem. op.) (upholding

death-penalty sanction in modification proceedings where record showed nexus between offender,

misconduct, and sanction where parent repeatedly failed to schedule and attend custody-

evaluation appointments or pay for custody evaluation).

               We also conclude that the trial court failed to adhere to the second prong of the

TransAmerican test, which requires that the sanction not be excessive. TransAmerican, 811 S.W.2d

at 917; Hernandez, 2016 WL 6068259, at *4. The primary consideration in a trial court’s

decision to modify a child-custody decree or order is whether modification is in the best interest

of the child. See Tex. Fam. Code § 156.101(a). Given this mandate, it would only be under the

most unusual set of facts that the striking of a party’s pleadings would not be excessive, given

that the effect of such act renders what is essentially a default judgment without granting a full

opportunity for that party to present evidence on the merits, such as the court-ordered evaluation

report. See In re Hood, 113 S.W.3d 525, 529 (Tex. App.—Houston [1st Dist.] 2003, orig.

                                                 9
proceeding) (holding that trial court abused discretion in striking father’s pleadings because case

was therefore decided without court reaching merits of father’s claims, yet “district court’s

primary responsibility in a modification proceeding is to consider the best interest of a child, not

to punish an offending party”).

               While the record reflects that Morsi provided untimely and incomplete or

improper discovery responses more than once, it also shows that as the case progressed Morsi

provided several missing discovery items and responses and withdrew all of his discovery

objections. Morsi’s verified response to Moya’s third motion to compel indicates that as of the

final hearing the only outstanding discovery appears to have been documents responsive to RFP

9 (the children’s school records).5 Considering the apparent amount of outstanding discovery,

the record does not reflect that the trial court considered lesser sanctions to remedy the amount

of outstanding discovery, such as imposing another monetary sanction or holding Morsi or

Hernandez in contempt, or that the trial court issued Hernandez a warning that her pleadings

would be struck for further failures to comply with discovery requests. The trial court also could

have granted the continuance and reset the matter for a response from Morsi and Hernandez as to

how and why discovery was not complete.

               In addition, the trial court’s order contained no reasoned explanation as to why the

death-penalty sanction was appropriate. See Cire, 134 S.W.3d at 840; Hernandez, 2016 WL

6068259, at *7. The only indication in the record of the trial court’s basis for issuing the


       5
          Morsi’s response averred that Hernandez did not have access to or possession of
documents responsive to RFPs 2, 3, 11, and 13, which Moya’s third motion to compel had
contended were outstanding. Morsi also averred that Hernandez had no information available to
provide a response to outstanding ROG 14 (asking her to identify the amount of her monthly
living expenses in August 2011).


                                                10
sanction is that the trial court did not grant Morsi’s continuance and neither Morsi nor Hernandez

(who verified in her motion for new trial that she had no notice of the hearing) appeared at the

hearing to oppose the sanction. To show that the trial court considered less stringent sanctions,

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

Spohn Hosp., 104 S.W.3d at 883. The record here does not.

               Finally, given that the record does not show that the conduct of Hernandez or

her counsel rises to the level of bad faith or callous disregard for the discovery rules and that

this is a custody case focused on the children’s best interest, we likewise conclude that their

discovery conduct does not justify a presumption that Hernandez’s pleadings lack merit. See

TransAmerican, 811 S.W.2d at 918. In the first place, it may have been a mere oversight that

Moya’s response to the third motion to compel did not specifically mention whether Hernandez

had access to any documents responsive to RFP 9. Secondly, the documents responsive to RFP 9

(the children’s school records) are the type that Moya could likely obtain from third parties

himself. Finally, the child custody evaluation—which Hernandez attached to her motion for new

trial—recommended that the youngest child remain with Hernandez and that Moya have a

standard possession schedule, which supports Hernandez’s pleadings requesting that Moya’s

modification petition be denied; it is also contrary to what the trial court ordered. Discovery

sanctions may not be used to adjudicate the merits of a party’s claims or defenses unless a

party’s hindrance of the discovery process justifies a presumption that her claims or defenses

have no merit. See id. The record here does not support such a presumption.

               For all of the above reasons, we sustain Hernandez’s second issue. Because our

resolution of her second issue is dispositive, we need not reach her first issue, in which she

argues that the trial court erred in denying her motion for new trial. See Tex. R. App. P. 47.1.

                                                11
                                      CONCLUSION

               The trial court abused its discretion in striking Hernandez’s pleadings as a

discovery sanction and granting a default judgment in favor of Moya on his petition to modify

the parent-child relationship. Accordingly, we reverse the trial court’s Order and remand this

cause for a new trial.



                                             __________________________________________
                                             Thomas J. Baker, Justice

Before Justices Goodwin, Baker, and Triana

Reversed and Remanded

Filed: August 29, 2019




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