                                   IN THE
                           TENTH COURT OF APPEALS



                               No. 10-16-00003-CV

                      IN RE RAMSAY ALLEN RAMSEY


                               Original Proceeding



                           MEMORANDUM OPINION

      In this original proceeding, Relator Ramsay Allen Ramsey seeks mandamus relief

in the underlying divorce case in which Lezlie Suzanne Ramsey filed for divorce and

Ramsay then filed a counterpetition. The trial court sanctioned Ramsay over the manner

of Ramsay’s production of documents to his wife Lezlie Suzanne Ramsey.

      In September 2014, Lezlie served her second request for production pertaining to

the allegations in Ramsay’s counterpetition. After an extension, in December 2014,

Ramsay served his response and objections, and while he did not produce any

documents, he agreed to produce them “at a time and place mutually agreeable in

advance by the parties.”

      At a September 10, 2015 hearing on one of Lezlie’s motions for enforcement,
Ramsay’s attorney stated that she had ten boxes of documents, but a formal supplemental

response to the request for production had not been prepared, nor had the documents

been organized. The trial court instructed (“what needs to happen”) Ramsay’s attorney

to prepare a formal response and to produce the documents in accordance with Rule of

Civil Procedure 196.3(c), which provides:

                 (c) Organization. The responding party must either produce
          documents and tangible things as they are kept in the usual course of
          business or organize and label them to correspond with the categories in
          the request.

TEX. R. CIV. P. 196.3(c).

          When documents were not produced, Lezlie filed her first motion to compel and

for sanctions, and at a November 23, 2015 hearing on that motion, the trial court ordered

Ramsay to produce copies of all the documents by 5:00 p.m. the next day.1 Six boxes of

copied documents were delivered to Lezlie’s attorney the next day. The documents were

not categorized and had minimal labeling (highlighting of Lezlie’s requests), and no

formal response to the request for production was served.

          On November 25, 2015, Lezlie filed her second motion to compel and for sanctions,

complaining about the manner of Ramsay’s document production. At the December 15,

2015 hearing on the second motion, the legal assistant for Lezlie’s attorney testified that

she had gone through all six boxes of documents and could not ascertain with any degree

of certainty what documents were responsive to which requests.




1
    The trial court did not explicitly state who was to pay the copying expense.


In re Ramsey                                                                         Page 2
        The trial court granted the second motion for sanctions in a January 4, 2016 order,

finding that Ramsay’s document production was nonresponsive, evasive, and incomplete

and that the documents were not organized as required by Rule 196.3(c).2 The trial court

sanctioned Ramsay as follows:

               IT IS ORDERED that Respondent not be allowed to support his
        affirmative claims made in his counter-petition or from introducing any
        evidence in support of those claims.

        In his petition for writ of mandamus, Ramsay asserts in his first issue that the trial

court abused its discretion by assessing the “death-penalty” sanction against him because

Ramsay was not afforded procedural due process3 and because the sanction is not just.

        We review a trial court’s ruling on a motion for sanctions for an abuse of discretion.

Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004). Rule 215.2(b)(4) sets out the following

discovery sanction: “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.” TEX. R. CIV. P. 215.2(b)(4); see Cire, 134 S.W.3d at 839-41.

        Lezlie contends that the trial court’s sanction is not a death-penalty sanction. We




2
  Ramsay’s petition incorrectly claims that the trial court found that his documents “appeared as kept in
the ordinary business.” The trial court’s order actually states: “There was no allegation made by
Respondent’s counsel at that hearing [the November 23 hearing] or at any other time during the pendency
of the case that the materials were, as they now appear, appeared as kept in the ordinary business.”

3
  Ramsay contends that, because he had objected to Lezlie’s requests for production and Lezlie had not
sought a hearing on his objections, he was not required to produce the documents and Lezlie waived her
right to the discovery. While it is true that any party may request a hearing on discovery objections and
that a party need not request a ruling on that party’s own objections to preserve the objections, see TEX. R.
CIV. P. 193.4(a, b), the record is clear that, irrespective of his objections, Ramsay was offering the boxes of
documents for production. It is therefore irrelevant that Lezlie did not seek a hearing on Ramsay’s
objections, and we further disagree with Ramsay’s claim that the trial court essentially overruled Ramsay’s
objections without a hearing.


In re Ramsey                                                                                            Page 3
disagree:

       Any sanction that adjudicates a claim and precludes the presentation of the
       merits of the case constitutes a “death penalty” sanction. Adkins Servs., Inc.
       v. Tisdale Co., 56 S.W.3d 842, 845 (Tex. App.—Texarkana 2001, no pet.)
       (citing Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 845 (Tex. 1992);
       TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 918 (Tex. 1991)).

Davenport v. Scheble, 201 S.W.3d 188, 193-94 (Tex. App.—Dallas 2006, pet. denied); see also

O’CONNOR’S TEXAS RULES * CIVIL TRIALS 333 (2011) (“Death-penalty sanctions include

dismissal, default judgment, excluding evidence, and jury instructions resolving fact

issues in favor of one party.”). The trial court’s sanction is a de facto adjudication of

Ramsay’s claims in his counterpetition—it prohibits him from supporting his claims, and

it prohibits him from introducing any evidence in support of those claims. See In re

Medtronic, Inc., No. 10-14-00077-CV, 2014 WL 2159555, at *3 (Tex. App.—Waco May 22,

2014, orig. proceeding) (mem. op.) (sanction prohibiting party from introducing expert

evidence was death-penalty sanction); Adkins Servs., 56 S.W.3d at 845 (impliedly holding

that exclusion of evidence to support claim was death-penalty sanction).

               Rule 215 requires that any sanctions imposed be “just,” and there are
       two components to measuring whether an imposition of sanctions is just.
       [Cire, 134 S.W.3d] at 839. “First, a direct relationship must exist between
       the offensive conduct and the sanction imposed, which “means that a just
       sanction must be directed against the abuse and toward remedying the
       prejudice caused the innocent party.” Id. (quoting TransAmerican Natural
       Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991)). Second, the sanctions
       must not be excessive. Id. “In other words, ‘[t]he punishment should fit the
       crime ... courts must consider the availability of less stringent sanctions and
       whether such lesser sanctions would fully promote compliance.’” Id.
       “[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. at 840-41
       (quoting GTE Communications Sys. Corp. v. Tanner, 856 S.W.2d 725, 729-30
       (Tex. 1993)); see also Spohn Hosp. v. Mayer, 104 S.W.3d 878, 882 (Tex. 2003)


In re Ramsey                                                                             Page 4
       (requiring trial courts to “consider less stringent measures before settling
       on severe sanctions,” but reiterating that death penalty sanctions may only
       be imposed in the first instance when the facts of the case are exceptional
       and such a sanction is “clearly justified”).

Lockhart v. McCurley, No. 10-11-00073-CV, 2013 WL 1286659, at *5 (Tex. App.—Waco Mar.

28, 2013, no pet.) (mem. op.).

       Generally, a trial court must use a lesser sanction first. Chrysler, 841 S.W.2d at 849-

50; Medtronic, Inc., 2014 WL 2159555, at *3; Adkins Servs., 56 S.W.3d at 845-46; see Cire, 134

S.W.3d at 840-41.

       In all cases, the record must reflect that the trial court considered the
       availability of appropriate lesser sanctions and must contain an explanation
       of the appropriateness of the sanction imposed. [Cire, 134 S.W.3d] at 842.
       The trial court need not test the effectiveness of each available lesser
       sanction by actually imposing the lesser sanction on the party before issuing
       the death penalty sanction; rather, the trial court must analyze the available
       sanctions and offer a reasoned explanation as to the appropriateness of the
       sanction imposed. Id. at 840.

Medtronic, Inc., 2014 WL 2159555, at *3.

       We conclude that the trial court’s death-penalty sanction constitutes an abuse of
discretion because nothing in the record shows that the trial court attempted or even
considered lesser sanctions before entry of the death-penalty sanction. See id. We sustain
issue one.
       In his second issue, Ramsay asserts that the trial court abused its discretion by
requiring Ramsay to bear the cost ($4,617.85) of copying the documents that he produced
to Lezlie.
             Unless otherwise ordered by the court for good cause, the expense
       of producing items will be borne by the responding party and the expense
       of inspecting, sampling, testing, photographing, and copying items
       produced will be borne by the requesting party.

TEX. R. CIV. P. 196.6.



In re Ramsey                                                                            Page 5
        Ramsay informally requested on the record that Lezlie be required to pay the

copying expense, but as we noted above, the trial court did not explicitly state or rule that

Ramsay was required to pay the copying expense. Absent a formal motion and an explicit

trial court ruling on who is to bear the copying expense, we will not entertain Ramsay’s

request for mandamus relief on this issue.4 Issue two is overruled.

        We conclude that the trial court abused its discretion by imposing a death-penalty

sanction, and we find that Ramsay does not have an adequate remedy by appeal.

Accordingly, we conditionally grant the petition for writ of mandamus, in part, and direct

the trial court to vacate its January 4, 2016 order entitled “Order on Second Motion to

Compel Discovery and for Sanctions.” The writ will only issue if the trial court does not

act in conformity with this opinion. We deny the remainder of the petition regarding the

copying expense.


                                                          REX D. DAVIS
                                                          Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Justice Scoggins dissents with a note.)*
Petition conditionally granted in part, denied in part
Opinion delivered and filed June 29, 2016
[OT06]

       *(In determining whether to impose death penalty sanctions, the trial court is not
limited to considering only the specific violation for which sanctions are finally imposed,
but may consider everything that has occurred during the history of the litigation. Buck

4
 Furthermore, even if the trial court did order Ramsay to bear the copying expense, he makes no showing
that mandamus relief would be proper—that he lacks an adequate remedy by appeal because the expense
before final judgment threatens his continuation of the litigation. See In re Ford Motor Co., 988 S.W.2d 714,
722-23 (Tex. 1998).


In re Ramsey                                                                                          Page 6
v. Estate of Buck, 291 S.W.3d 46, 55 (Tex. App.—Corpus Christi 2009, no pet.); Allied Res.
Corp. v. Mo-Vac Serv. Co., 871 S.W.2d 773, 775 (Tex. App.—Corpus Christi 1994, writ
denied); see Schmitt v. Bordelon, 844 S.W.2d 273, 278 (Tex. App.—Fort Worth 1992, writ
denied). In reviewing an order imposing sanctions, we must independently review the
entire record and are not bound by the trial court's findings of fact and conclusions of
law, if any. Buck, 291 S.W.3d at 56.
        This divorce case is over three years old, and in fact one of the children is no longer
a child and conservatorship is not even contested as to the remaining minor child. The
record shows that the trial court considered the history of the litigation between Lezlie
and Ramsay. The trial court held numerous hearings to enforce its temporary orders
related to this proceeding and after the second of these hearings, held Ramsay in
contempt for failing to comply with the court’s temporary orders. I am unable to find
that the trial court abused its discretion; and, therefore, I respectfully dissent.)




In re Ramsey                                                                             Page 7
