                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                         No. 07-14-00052-CV


              TONY R. JIMENEZ AND CYNTHIA L. JIMENEZ, APPELLANTS

                                                   V.

     METLIFE HOME LOANS, A DIVISION OF METLIFE BANK, N.A., APPELLEE

                             On Appeal from the 348th District Court
                                     Tarrant County, Texas
             Trial Court No. 348-248450-10, Honorable Dana M. Womack, Presiding

                                          March 31, 2015

                                MEMORANDUM OPINION
                      Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

        This is an appeal from an order striking the pleadings of and dismissing, with

prejudice, the suit filed by Tony R. Jimenez and Cynthia L. Jimenez (Jimenez). 1 The

latter had sued Metlife Home Loan, a division of Metlife Bank, N.A., (Metlife) challenging

its authority to foreclose upon their home. Jimenez contends that 1) the order was an

improper sanction, 2) there was no direct relationship between their offense and the


        1
         The cause was transferred from the Fort Worth Court of Appeals to the Amarillo Court of
Appeals. Thus, we are obligated to apply the former’s precedent when disposing of it. TEX. R. APP. P.
41.3.
sanction, 3) a lesser sanction would have been appropriate, and 4) the trial court

abused its discretion in failing to grant their motion to reinstate. We affirm the order.

       The sanction at issue involved discovery abuse, that is, Jimenez failed to

respond to multiple efforts at discovery. Included within that abuse were their refusal to

comply with court orders requiring such discovery. And whether intentional or innocent,

counsel for Jimenez structures his argument before us in a somewhat misleading way.

That is, he tells us that the trial court’s decision to dismiss arose simply from their failure

to appear at a deposition. Nothing is said of his client’s prior instances of misconduct.

       Suit was filed on September 9, 2010. Metlife served requests for production of

documents, requests for admissions, and interrogatories in June 2012. Jimenez did not

respond, even though Metlife notified them of their failure.

       In November 2012, Metlife served a second request for production of documents,

requests for admissions, and interrogatories. They too met with no response, despite

Metlife again notifying Jimenez of the failure.

       On April 24, 2013, Metlife filed a motion to compel responses to its discovery

requests. At that time, trial was set for June 10, 2013. The trial court entered an order

granting the motion to compel and ordering responses to be served within ten days.

Jimenez ignored the order, even though their attorney agreed to it. That resulted in

Metlife moving for sanctions and to hold Jimenez in contempt.               It also sought a

continuance of the trial date.       The continuance was granted, and the trial was

postponed to October 28, 2013. The trial court also levied sanctions by awarding $750

to Metlife and ordering Jimenez to present themselves for depositions during the three

weeks beginning July 24, 2013. The parties apparently agreed on the deposition date



                                              2
of August 8th. As before, Jimenez again failed to cooperate; that is, neither appeared

for deposition because one of them supposedly was ill. Nor did they suggest alternate

deposition dates.

        Thereafter, Metlife again moved for sanctions and an order of contempt. That

motion was heard on October 3, 2013. No transcription of the hearing appears of

record.2 Nonetheless, it resulted in the trial court striking the pleadings of Jimenez and

dismissing their claims with prejudice.3            About thirty days later, Jimenez moved to

reinstate the cause, which motion the trial court denied on December 12, 2013.

        The pertinent standard of review is abused discretion. Low v. Henry, 221 S.W.3d

609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004). Therefore,

we may reverse the trial court’s decision only if it is arbitrary or unreasonable. Cire v.

Cummings, 134 S.W.3d at 839.

        Next, if a party fails to respond to discovery requests, the court may enter an

order 1) disallowing any further discovery of any kind or a particular kind, 2) charging all

or any portion of the expenses of discovery or taxable costs or both against the

disobedient party or his attorney, 3) directing that certain matters shall be taken to be

established for the purpose of the claim, 4) refusing to allow the disobedient party to

support or oppose designated claims or defenses or prohibiting him from introducing

        2
          While the record suggests that Jimenez may have requested the document, nothing indicates
that they made arrangements to pay or paid for it. Nor did Jimenez request this court to assist in
obtaining the missing record. Thus, we have little choice but to conclude that they waived any opportunity
to secure it or otherwise opted not to get it.
        3
          Though counsel for Jimenez represents in his brief that the trial court knew his clients had
provided all outstanding discovery by the October 3rd hearing, nothing of record supports the proposition.
Nor does it support the suggestion that Jimenez responded to any discovery propounded by Metlife.
Indeed, counsel even omits citation to the record purportedly supporting the statement, and
representations of purported fact made by counsel only in his brief are not evidence. Vanderbilt v. State,
629 S.W.2d 709, 718 (Tex. Crim. App. 1981) (stating that assertions in an appellate brief that are
unsupported by the record will not be accepted).

                                                    3
designated matters in evidence, 5) striking out pleadings or parts thereof or staying

further proceedings until the order is obeyed or dismissing with or without prejudice the

action or any part thereof or rendering a default judgment, 6) holding the defaulting

party to be in contempt, and 7) requiring the disobedient party or his attorney to pay

reasonable expenses caused by the failure. TEX. R. CIV. P. 215.2(b). However, the

sanction not only must be no more severe than necessary to satisfy its legitimate

purpose, Cire v. Cummings, 134 S.W.3d at 839, but also have a direct relationship to

the improper conduct. Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex.

2006). The court is to make certain that less severe sanctions would not have been

sufficient to promote compliance. Id. And, though death penalty sanctions may be

imposed only when the facts are exceptional and the sanction is clearly justified,

Spohn Hosp. v. Mayer, 104 S.W.3d 878, 882 (Tex. 2003), such circumstances may

arise when a party’s hindrance of the discovery process justifies a presumption that its

claims lack merit. TransAmerican Natural Gas Corp. v. Powell, 811 S.W.3d 913, 918

(Tex. 1991). With that said, we turn to the record at bar.

       As previously mentioned, the appellate record contains only the clerk’s record;

that is, Jimenez failed to obtain a reporter’s record of the contempt/sanctions hearing

held on October 3rd.4 Nor does the appellate record illustrate that they paid for or

arranged to pay for it with the court reporter. This default has consequences. Because

of it, we must presume “that the omitted portions of the record are relevant to this

appeal and that the missing evidence supports the trial court's judgment” or decision.

CMM Grain Co. v. Ozgunduz, 991 S.W.2d 437, 439-40 (Tex. App.—Fort Worth 1999,

no pet.); accord In re Guardianship of Winn, 372 S.W.3d 291, 298 (Tex. App.—Dallas
       4
           The docket sheet notes that the hearing was “on the record.”

                                                     4
2012, no pet.) (stating the same).      Due to this presumption, we presume that the

evidence presented at the October 3rd hearing supported the trial court’s implicit

decision that striking Jimenez’s pleadings and dismissing their suit was the least

appropriate sanction warranted and that their hindrance of the discovery process

justified a presumption that their claims lacked merit.

       Yet, we need not rely simply on the aforementioned presumption for aspects of

the clerk’s record also support the decision to levy the sanction at issue. Again, it

illustrates that Jimenez avoided discovery on several occasions, that Metlife had to

move the trial court for help, that the trial court ordered Jimenez to respond to

outstanding discovery requests, that Jimenez ignored the court’s order, that the trial

court levied additional sanctions in the form of awarding Metlife attorney’s fees and

directed Jimenez to submit to depositions, and that Jimenez failed to comply with the

latter directive as well. Finally, trial on the merits was set less than thirty days away

when the court decided to levy the ultimate sanction.

       As stated by our Supreme Court in TransAmerican, “. . . 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 Natural Gas Corp. v. Powell, 811 S.W.3d at 918; accord Davenport v.

Scheble, 201 S.W.3d 188, 194 (Tex. App.—Dallas 2006, pet. denied) (stating the

same); see also Weinberger v. Longer, 222 S.W.3d 557, 571 (Tex. App.—Houston [14th

Dist.] 2007, pet. denied) (finding that death penalty sanctions were not an abuse of

discretion when the trial court had twice ordered Weinberger to supplement or respond

to discovery which involved evidence material to his claim). To that, we add the words



                                             5
of the Fort Worth Court of Appeals: “. . . when, as here, a plaintiff files an action and

then actively frustrates all legitimate attempts by a defendant to define the cause of

action and investigate potential defenses, there is a direct relationship between the

plaintiff's conduct and the trial court's dismissal of the action . . . [and a] party who will

not ‘play by the rules’ even after repeated orders to do so should not be allowed to play

at all.” Chasewood Oaks Condos. Homeowners Ass'n v. Amatek Holdings, 977 S.W.2d

840, 845 (Tex. App.—Fort Worth 1998, pet. denied). By avoiding discovery, Jimenez

frustrated Metlife’s efforts to prepare its defense and for trial. Their conduct went so far

as to ignore court directives ordering discovery.         Though they opine that lesser

sanctions were appropriate, they do not suggest what lesser sanction might have

encouraged them to abide by the discovery rules and the trial court’s orders. Indeed,

the lesser sanctions levied earlier had no effect on them.      So, we cannot fault the trial

court for implicitly concluding that there existed a direct relationship between their

misconduct and its decision to dismiss. Nor can we fault the implicit finding that their

misconduct justified a presumption that their suit lacked merit.

       To the extent that Jimenez suggests they had no notice of the potential for

dismissal, we refer to the final motion for contempt and sanctions of Metlife as basis for

rejecting the contention.    Therein, Metlife wrote “Defendant requests that Plaintiffs'

pleadings be stricken in accordance with Rule 215.2(b)(5) of the Texas Rules of Civil

Procedure and that the Court dismiss this matter with prejudice.” The certificate of

conference appended to the motion reveals not only that counsel for Metlife phoned

counsel for Jimenez about the motion but also that the latter did not exercise the

courtesy of returning the call. So too does the motion contain a certificate of service



                                              6
indicating that the document was served on counsel for Jimenez. Simply put, Jimenez

had notice that dismissal could occur, and the argument to the contrary is quite

disingenuous.

        Furthermore, Supreme Court precedent, such as TransAmerica, revealed long

ago that dismissal may result from repeated discovery abuse. And, when Jimenez had

opportunity to broach the topic via their motion to reinstate, they did not do it. 5 Thus,

the complaint not only lacks merit but was unpreserved for review.

        Simply put, the trial court did not abuse its discretion in striking Jimenez’s

pleadings and dismissing the suit with prejudice. Nor do we find error in its decision

refusing to reinstate the cause. Accordingly, we affirm its final order.



                                                                          Brian Quinn
                                                                          Chief Justice

        .




        5
          Indeed, their motion to reinstate (which was filed at the latest possible time) speaks of how they
should be allowed to try their complaint and how they are ready to proceed. Little is said of cooperating
with Metlife and complying with the rules of discovery. Little is said of complying with the prior court
orders mandating discovery. Little legal authority is cited to support what they say. Nor were any of their
factual allegations supported by any other than utterance by counsel.                 Indeed, he seems to
misunderstand that dismissal arose from repeated discovery abuse, not some delay in prosecuting the
suit. Yet, the tenor of the motion focuses on their willingness to prosecute it diligently. Jimenez
attempted to make the situation all about them in the motion, but the right of Metlife to defend itself and
prepare for trial must also be considered.

                                                     7
