                                   In The
                             Court of Appeals
               Sixth Appellate District of Texas at Texarkana


                                      No. 06-17-00108-CV




     IN THE MATTER OF THE MARRIAGE PEGGY J. MIZE AND LESTER D. MIZE




                            On Appeal from the 62nd District Court
                                  Franklin County, Texas
                                   Trial Court No. 11891




                         Before Morriss, C.J., Moseley and Carter,* JJ.
                                 Opinion by Justice Moseley


________________________

*Jack Carter, Justice, Retired, Sitting by Assignment
                                                OPINION
           On June 16, 2015, Peggy J. Mize petitioned to divorce her husband, Lester D. Mize, who

filed his own counterpetition for divorce. Each party faulted the other for the breakup in the

marriage, sued for spousal tort and fraud, and made claims for reimbursement from the community

estate. Additionally, Lester asserted a claim for malicious prosecution against Peggy for filing

“blatantly false” criminal charges for family violence assault.

           While these criminal charges were pending, Lester refused to answer many questions

propounded to him during a deposition on the ground that the answers might tend to incriminate

him and thus violate his Fifth Amendment rights. In response to Peggy’s motion for sanctions

against Lester for his refusal to answer questions during the deposition, the trial court prohibited

Lester from introducing any evidence in support of his requests for affirmative relief and barred

him from testifying at the final hearing. As a result of those sanctions, the trial court granted partial

summary judgment in favor of Peggy and then struck Lester’s then-amended counterpetition.

After a brief hearing, in which Lester did not testify, the trial court entered a final divorce decree

that determined, among other things, that Peggy was entitled to a disproportionate share of the

community property based on Lester’s actions as described in Peggy’s motion for summary

judgment and that the community estate was required to reimburse Peggy $149,321.00 for separate

contribution.

           On appeal, Lester argues that the trial court erred in imposing death penalty sanctions

against him. Because compliance with TransAmerican1 was not demonstrated on the record, we


1
    See TransAmerican Nat’l Gas Corp. v. Powell, 811 S.W.2d 913, 918 (Tex. 1991) (orig. proceeding).

                                                          2
reverse the trial court’s judgment, render judgment deleting the assessed sanctions against Lester,

and remand the case for further proceedings consistent with this opinion.

I.     Factual and Procedural Background

       Among other things, Peggy’s petition alleged that Lester had assaulted her, committed

adultery, secreted community assets, fraudulently written checks to third parties which he cashed

himself, and conveyed community assets to his sister. Lester alleged that Peggy had also secreted

community assets by purporting to invest them in her closely held real estate business and had

filed false charges for family violence assault. He filed a no-evidence motion for summary

judgment alleging that Peggy had no evidence either that the divorce was his fault or that she was

entitled to a claim for reimbursement.

       Peggy noticed Lester’s deposition for March 27, 2017. On February 20, 2017, Lester’s

attorney wrote to Peggy’s attorney stating that “scheduling Mr. Mize’s deposition with criminal

charges pending might be futile inasmuch as his criminal attorney will most likely advise him to

plead the fifth [sic].” On March 2, 2017, Lester’s attorney again wrote, “[A]s I advised previously,

Mr. Mize’s criminal case is scheduled for a hearing on April 5, 2017[,] and scheduling depositions

would more than likely be a waste of time at this point.” Lester and his attorney arrived at the

March 27 deposition, but were not accompanied by his criminal attorneys.

       During his deposition, Lester stated that he never assaulted Peggy, never committed

adultery, and did not hide assets during the marriage. However, he refused to answer many

questions on the basis that his answer would incriminate him with respect to pending charges,



                                                 3
possible criminal charges, and even other matters that were not covered by the Fifth Amendment

privilege. As an example, Lester invoked the Fifth Amendment when asked the following:

                “Did you write checks where you were buying assets that didn’t exist?”
                “Did you move the $300,000 to your sister or open that account in 2014?”
                “Have you ever written a check . . . and cashed it yourself?”
                “Well, you do realize that by doing what you did with the check, it is against
                 the law?”
                “What medication have you taken in the last week?”
                “So you’re telling me that your income tax returns do not reflect what you
                 really earned; is that right?”
                “How much did you declare in income for 2016?”
                “You said you had five lawyers that have worked for you in this case. . . .”
                 “How did you pay you [sic] lawyers?”
                “Do you still have the money in your bank account?”
                “You claim she did something at fault to break up your marriage. . . . What
                 did she do?”
                “[W]here are all your assets?”
                “Have you transferred any assets to your sister during this case?”
                “And you specifically were not required to take early retirement from DPS
                 a result of impropriety and the use of an electric meter in your house, were
                 you?”
                “You’ve never purchased any livestock from Carol Van Zandt or Andrew
                 Gamble, right? . . . . And that’s because you wrote bogus checks to them,
                 didn’t you?”
                “And you’re telling the Court that you don’t believe you ever placed your
                 hands on Ms. Mize in a way that she would have felt threatened?”
                “You called Ms. Mize a b[****] and other derogatory names on numerous
                 occasions during your marriage?”
                “Have you attempted to hide assets from Peggy?”

Throughout the deposition, although he later answered several questions related to his financial

information, Lester repeatedly indicated, “I’m going to claim my Fifth Amendment, I guess,

anything that has to do with financials, anything.”2 When shown a list of property, the following


2
 Lester named his bank accounts and estimated the amount of money in them, discussed the source of funding in those
accounts, and answered several questions related to his other assets.
                                                        4
discussion ensued between Lester and Peggy’s counsel and was highlighted in Peggy’s motion for

sanctions:

       Q       So you’re not going to be able to testify at the time of trial on the value of
       any of the assets on Exhibit No. 7 is what you’re saying?

       A      No, I’m not saying that.

       Q       Well, today, I’m asking you questions, the same as if you were in open court
       giving testimony. And if you aren’t going to answer them today, I’m going to argue
       you can’t answer them then, so you are going forward of your own risk, so I’m
       making sure you know what I’m doing. I’m asking you whether you agree or
       disagree with those values on Exhibit No. 7. Do you understand my question?

       A      I’m going to decline based on my Fifth Amendment right.

       ....

       Q      So if I ask you line for line whether this value placed here is accurate, you’re
       not going to answer that; is that a fair statement?

       A      That’s a fair statement.

       Q      All right. And at the time of trial, you’re not going to be able to answer
       them either; do you understand that?

       A      No. I will answer them at the time of trial.

       Q      Well, sir, so what you’re saying is you’re taking the Fifth Amendment today
       and you intend to take a different position at the time of trial?

       A      Yes. I’m not going to be badgered in a -- in a trial.

       Q      So you’re doing this solely to block discovery, is what you’re saying, so I
       won’t be able to find out what your values are until we go to trial?

       A      That’s correct.

       Q      You understand the Court can sanction you for your actions?

       A      I don’t know what you mean by that.
                                                 5
Additionally, Lester also refused to identify documents, including cancelled checks which had

been produced to Peggy’s counsel. Several times during the deposition, Lester stated that his

refusal to answer was based “[o]n advice of counsel.”3 He stated, “If it’s not involved in my

criminal case -- if it’s involved in my -- this criminal case, my counsel has advised me not to

answer any questions based on my -- I take the Fifth.” The deposition does not reflect that Lester’s

civil attorney, who was present at the deposition, or opposing counsel made an effort to explain

why Lester could not invoke the Fifth Amendment with respect to many of the propounded

questions.4




3
    Lester’s claim that his refusal to answer was advised by his attorneys is supported by the following excerpts:

            Q        What counsel gave you the advice to take a Fifth Amendment regarding whether you’ve
            seen a doctor in the last 12 months?
            A        I’d say all three lawyers.
            Q        The lawyer sitting here today gave you that advice?
            A        I have that right.
            Q        Didn’t say whether you had the right, sir. I’m asking what lawyer gave you the advice --
                     [Lester’s Attorney]: Objection, privileged.
            ....
            Q        So you don’t recall talking to Dr. Kahn?
            ....
            A        I decline to answer that, sir.
            ....
            Q        Fifth Amendment right, you believe, protects you from answering that question?
            A        I believe it does.
            Q        All right. Where did you get your law degree, sir?
            ....
                     [Lester’s attorney]: Objection, harassment.
            ....
            Q        And you believe the Fifth Amendment right of incrimination protects you from whether or
            not you’ve seen a doctor?
            A        I don’t know, sir, what -- what it -- what it protects me from but I -- I’m claiming it anyway.
4
 During his deposition, Lester also stated that he (1) did not know what separate property was, (2) did not know what
assets he had asked to be awarded to him, (3) and stated, “Well, I have not understood everything and you’re going
too fast. You’re pushing me and so I may have answered improperly, not realizing what I was doing, sir.”
                                                               6
       On May 4, 2017, Peggy filed a motion for sanctions on the ground that Lester was

wrongfully attempting to block discovery through his improper invocation of the Fifth Amendment

“approximately 100 times” during the deposition. Among other items of relief, the motion

requested that the trial court sanction Lester by striking his pleadings, rendering default judgment

against him, barring any of his claims for affirmative relief, and disallowing him to present any

evidence at trial and barring his opposition “on issues about which he took the Fifth Amendment

at his deposition.” After Lester responded to the motion for sanctions, the trial court held a hearing

on the matter.

       During the May 12, 2017 hearing, Lester’s counsel admitted the February 20 and March 2

letters and stated that she had several conferences with Peggy’s attorney warning that Lester had

been advised to plead the Fifth Amendment. Lester’s counsel further stated that he was anxious

and frightened and had refused to answer questions “regarding not only the pending criminal case

but potential criminal cases that Mrs. Mize continues to bring to the authorities to have additional

charges filed against Mr. Mize.” She assured the trial court that Lester was not attempting to

thwart discovery and urged the trial court not to strike his pleadings. The trial court concluded:

       [T]he Court finds that Respondent does have an absolute right to invoke his Fifth
       Amendment privilege; however, the Court finds in this case he has invoked the
       privilege and is subterfuge to abuse the discovery process. After considering the
       appropriate [sic] and limiting the sanctions with regard to Respondent’s conduct,
       the Court is going to prohibit Respondent from testifying in the final hearing in this
       matter. In addition, Respondent will be prohibited from introducing any evidence
       on his affirmative request for relief in his pleadings.

Those oral findings were memorialized in a written order granting Peggy’s motion for sanctions.



                                                  7
        On August 1, 2017, in light of the trial court’s ruling on the sanctions motion, Peggy filed

a motion for partial summary judgment, arguing that (even though Lester answered some of the

questions posed to him during his deposition) he could not present affirmative defenses and that

no fact issue existed. She signed an affidavit attaching various documents in support of her motion

for summary judgment.5 Lester responded to the motion by attaching his own affidavit averring

that he was acquitted of criminal charges on July 18, 2017, and did not invoke the Fifth

Amendment for the purpose of thwarting discovery. In response to that affidavit, Peggy again

moved to strike Lester’s petition and his affidavit.

        The trial court struck Lester’s affidavit and third-amended counterpetition and granted

Peggy’s motion for partial summary judgment, leaving only the issue of property characterization

with respect to certain assets. A final judgment was entered on September 27, 2017.

II.     Compliance with TransAmerican Is Not Shown by the Record

        “The United States Constitution both guarantees that a person may not be compelled to

testify or give evidence against h[im]self.” In re Ferguson, 445 S.W.3d 270, 274–75 (Tex. App.—

Houston [1st Dist.] 2013, orig. proceeding) (citing U.S. CONST. amend. V; Maness v. Meyers, 419

U.S. 449, 461 (1975)). “A party may invoke his Fifth Amendment privilege against self-

incrimination in a civil proceeding if he reasonably fears that the answer sought might incriminate

him.” Dunne v. Brinker Tex., Inc., No. 05-16-00496-CV, 2017 WL 3431465, at *3 (Tex. App.—

Dallas Aug. 10, 2017, pet. denied) (mem. op.) (citing United States v. Balsys, 524 U.S. 666, 671–



5
See Sundance Res., Inc. v. Dialog Wireline Servs., L.L.C., No. 06-08-00137-CV, 2009 WL 928276, at *4 (Tex.
App.—Texarkana Apr. 8, 2009, no pet.) (mem. op.) (setting forth the requirements of an affidavit).
                                                    8
72 (1998)). The privilege may be invoked “during the discovery process to avoid answering

questions at a deposition, responding to interrogatories or requests for admissions, or to produce

documents.” Ferguson, 445 S.W.3d at 276 (quoting Davis–Lynch v. Moreno, 667 F.3d 539, 547

(5th Cir. 2012)).

        Yet, a party “seeking affirmative relief should not be permitted to use his Fifth Amendment

privilege offensively by maintaining a suit and, at the same time, claim privilege to prevent the

[other party] from obtaining information needed to prepare a defense.” Dunne, 2017 WL 3431465,

at *3 (citing Tex. Dep’t of Pub. Safety Officers Ass’n v. Denton, 897 S.W.2d 757, 760 (1995)).

“Thus, when a civil plaintiff uses his Fifth Amendment privilege offensively and refuses to comply

with discovery, a trial court has the authority to impose sanctions authorized by the rules of

procedure, including death penalty sanctions,”6 but only after the trial court has “consider[ed]

whether remedial steps can alleviate the problem.” Id. (citing TEX. R. CIV. P. 215; Denton, 897

S.W.2d at 760). Additionally, sanctions can also be imposed for the wrongful invocation of the

Fifth Amendment.

        Because “[t]rial courts have broad authority to impose appropriate sanctions on recalcitrant

litigants,” “[w]e review a trial court’s ruling on a motion for sanctions for abuse of discretion.”

Altesse Healthcare Sols., Inc. v. Wilson, 540 S.W.3d 570, 572, 573–74 (Tex. 2018) (per curiam)

(citing Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004); In re Bennett, 960 S.W.2d 35, 40

(Tex. 1997) (per curiam) (orig. proceeding). “That authority is not, however, without limits.” Id.


6
 “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.). We
find that the trial court’s sanctions, which precluded presentation of the merits of Lester’s counterpetition and all
requests for affirmative relief, constituted death penalty sanctions.
                                                         9
at 572. Further, we examine the entire record in determining whether a trial court abused its

discretion in issuing death penalty sanctions. See Am. Flood Res., Inc. v. Jones, 192 S.W.3d 581,

583 (Tex. 2006) (per curiam); see also Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 852 (Tex.

1992).

         “Although sanctions intended to secure compliance with court orders and deter

noncompliance are often essential to the orderly conduct of trial-court proceedings, our precedent

dictates that courts should avoid a ‘trial by sanctions’ whenever possible.” Altesse Healthcare,

540 S.W.3d at 575 (citing TransAmerican, 811 S.W.2d at 918 (holding that death penalty sanction

was not justified by party’s failure to appear at deposition)). “Sanctions so severe that they prevent

a decision on the merits are not justified except in the most severe cases of flagrant bad faith.” Id.

This is because “sanctions, and death-penalty sanctions in particular, cannot be used to effectively

adjudicate the merits of a case unless the offending party’s conduct justifies a presumption that its

claims or defenses lack merit.” Id. at 576 (citing Paradigm Oil, Inc. v. Retamco Operating, Inc.,

372 S.W.3d 177, 184 (Tex. 2012); TransAmerican, 811 S.W.2d at 918).

         “A trial court’s discretion is limited by the requirements that sanctions be ‘just’ and

comport with due process.” Palau v. Sanchez, No. 03-08-00136-CV, 2010 WL 4595705, at *7

(Tex. App.—Austin Nov. 10, 2010, pet. denied) (mem. op.) (citing TEX. R. CIV. P. 215.2(b);

TransAmerican, 811 S.W.2d at 917); see Altesse Healthcare, 540 S.W.3d at 574–75. “Restrictions

on extreme discovery sanctions also flow from the recognition that ‘[t]here are constitutional

limitations upon the power of courts, even in aid of their own valid processes, to dismiss an action



                                                 10
without affording a party the opportunity for a hearing on the merits of his cause.’” Altesse

Healthcare, 540 S.W.3d at 575 (quoting TransAmerican, 811 S.W.2d at 918).

       In TransAmerican, the Texas Supreme Court held that in order for a sanction to be just, “a

direct relationship must exist between the offensive conduct and the sanction imposed” and that

“sanctions must not be excessive.” Id. (quoting TransAmerican, 811 S.W.2d at 917). “In other

words, a court imposing sanctions must seek to ensure that ‘[t]he punishment . . . fit[s] the crime.’”

Id. at 572 (quoting TransAmerican, 811 S.W.2d at 917). “This means that a just sanction must be

directed against the abuse and toward remedying the prejudice caused the innocent party.”

TransAmerican, 811 S.W.2d at 917. “It also means that the sanction should be visited upon the

offender.” Id. “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.” Id. “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.

       Here, the record demonstrates that Lester’s civil counsel was present during his deposition.

She had previously written to Peggy’s counsel to warn him that scheduling the deposition would

be futile because Lester had been instructed by his criminal lawyer to invoke the Fifth Amendment

in response to questioning. During the deposition, Lester raised the privilege with respect to

matters not covered by the Fifth Amendment protection, but repeatedly cited that he was doing so

based on the advice of his counsel. When it is clear that the party believes he has a Fifth

Amendment privilege, and the trial court does not inquire whether the party or his attorney was

responsible for that belief, there is no evidence that the sanctions were visited on the actual

                                                 11
offender. See Risinger v. Beal Bank, S.S.B., No. 01-99-00551-CV, 2001 WL 126127, at *1 (Tex.

App.—Houston [1st Dist.] Feb. 15, 2001, no pet.) (not designated for publication) (citing

TransAmerican, 811 S.W.2d at 917); see also Hernandez v. Polley, No. 03-15-00384-CV, 2016

WL 6068259, at *4 (Tex. App.—Austin Oct. 13, 2016, no pet.) (mem. op.).7

         Moreover, the Texas Supreme Court has also held that “sanctions cannot be ‘more severe

than necessary to satisfy the legitimate purposes of sanctions.” Altesse Healthcare, 540 S.W.3d at

575 (quoting Chrysler Corp., 841 S.W.2d at 850).8 This requires a trial court “to consider the

availability of lesser sanctions before imposing death penalty sanctions.” Id. at 576 (quoting Cire

v. Cummings, 134 S.W.3d 835, 840 (Tex. 2004) (emphasis omitted)). It “must either consider

lesser sanctions on the record or test lesser sanctions.” Knoderer v. State Farm Lloyds, No. 06-

13-00027-CV, 2014 WL 4699136, at *10 (Tex. App.—Texarkana Sept. 19, 2014, no pet.) (mem.

op.) (“[I]n all but the most exceptional cases, the trial court must actually test the lesser sanctions

before striking the pleadings.”) (quoting Cire, 134 S.W.3d at 840).                        “[C]ase-determinative

sanctions may be imposed only 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 *11 (quoting

Cire, 134 S.W.3d at 840–41 (citing Ross v. Nat’l Ctr. for the Empl. of the Disabled, 197 S.W.3d

795, 798 (Tex. 2006) (per curiam) (death penalty sanctions not appropriate as initial step)). “Thus,


7
 Additionally, although Lester testified that he never assaulted Peggy, he was barred from presenting evidence of his
claim for malicious prosecution. Lester also answered several questions related to his assets, bank accounts, bank
balances, and source of funding for his accounts and stated that he never committed adultery or hid assets.

8
 “Accordingly, so-called death-penalty sanctions, under which the offending party essentially loses the case because
of the sanction, are generally reserved for the most egregious cases in which the offending party’s conduct justifies a
presumption that its claims lack merit.” Altesse Healthcare, 540 S.W.3d at 572 (citing Paradigm Oil, Inc., 372 S.W.3d
at 184).
                                                         12
a trial court either must impose lesser sanctions first or must clearly explain on the record why the

case is an exceptional case where it is fully apparent that no lesser sanctions could promote

compliance.” Id. A mere recitation in an order “that no lesser sanction ‘would be adequate

punishment’” is insufficient where the record demonstrates that “the court did not duly consider

whether some lesser sanction would appropriately punish the defendants’ conduct” before

awarding death penalty sanctions. Altesse Healthcare, 540 S.W.3d at 576.

            Here, Peggy did not seek to compel Lester to appropriately answer the questions in which

he was unable to claim a Fifth Amendment privilege. Unlike many cases where death penalty

sanctions have been upheld, Lester was not instructed that his failure to answer counsel’s questions

could result in stricken pleadings and his inability to present evidence at trial, even in defense to

Peggy’s petition. Critically, the record reveals no compliance with the Texas Supreme Court’s

mandate to “analyze the available sanctions and offer a reasoned explanation as to the

appropriateness of the sanction imposed.” Cire v. Cummings, 134 S.W.3d 835, 840 (Tex. 2004).

Thus, “[e]rror occurred in the absence of either testing lesser sanctions[9] or explaining why this




9
    Possible lesser sanctions could include any or all of the following:
                      1.       Ordering Lester to be deposed again, at his own expense, with an instruction to answer all
            questions in which the Fifth Amendment right to be free from self-incrimination does not apply,
                      2.       Warning Lester that failure to answer counsel’s questions will result in exclusion of his
            testimony,
                      3.       Ordering Lester to pay the expenses incurred by Peggy when taking the first deposition
            and prosecuting her motion for sanctions, and
                      4.       Any other sanction permitted by Rule 215 of the Texas Rules of Civil Procedure.

                                                            13
case is an extreme case where lesser sanctions would not be adequate.” Knoderer, 2014 WL

4699136, at *11.

            We sustain Lester’s first point of error.10

III.        Conclusion

            We reverse the judgment of the trial court. We render judgment deleting all sanctions

against Lester and remand this case to the trial court for further proceedings consistent with our

opinion.




                                                           Bailey C. Moseley
                                                           Justice

Date Submitted:                June 27, 2018
Date Decided:                  August 1, 2018




10
     Our ruling on this matter is dispositive of the appeal.
                                                               14
