A trial court is required to explain that it considered lesser sanctions before imposing death penalty sanctions.” Citibank, N.A. v. Estes , 385 S.W.3d 671, 676 (Tex.App.–Houston [14th Dist.] 2012, no pet.). Even when the record reflects intentional discovery abuse, the trial court is still required to explain that it considered lesser sanctions before imposing sanctions that preclude a party's ability to present the merits of its claims.
TEX. CIV. PRAC. & REM. CODE § 10.004(a) ; TEX. R. CIV. P. 13 ; Citibank, N.A. v. Estes , 385 S.W.3d 671, 675 (Tex. App.—Houston [14th Dist.] 2012, no pet.). A trial court abuses its discretion by awarding Chapter 10 or Rule 13 sanctions against any other person.
TEX. CIV. PRAC. & REM. CODE § 10.004(a); TEX. R. CIV. P. 13; Citibank, N.A. v. Estes, 385 S.W.3d 671, 675 (Tex. App.—Houston [14th Dist.] 2012, no pet.). A trial court abuses its discretion by awarding Chapter 10 or Rule 13 sanctions against any other person.
" (emphasis added)); Young, 2016 WL 7339117, at *4 ("[T]he record must show that the court analyzed available sanctions and offered a reasoned explanation as to appropriateness of the sanction imposed."); Primo v. Rothenberg, Nos. 14-13-00794-CV, 14-13-00997-CV, 2015 WL 3799763, at *24 (Tex. App.—Houston [14th Dist.] June 18, 2015, pet. denied) (mem. op.) ("Even when the record reflects intentional discovery abuse, as it does here, the trial court is still required to explain that it considered lesser sanctions before imposing sanctions precluding a party's ability to present the merits of its claims."); Knoderer, 2014 WL 4699136, at *11 ("[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."); Citibank, N.A. v. Estes, 385 S.W.3d 671, 676 (Tex. App.—Houston [14th Dist.] 2012, no pet.) ("The absence of an explanation of how a trial court determined to impose an especially severe sanction is inadequate."). The trial court did not comply with this mandate of explaining its decision to impose death-penalty sanctions rather than lesser sanctions either in the hearing leading to the sanctions or in the order imposing the sanctions.
Thus, the respondent abused her discretion to the extent she based the sanction on Rule 215.2 or Rule 215.3.The relators did not violate the November 2, 2015 order by producing the Documents.See Low v. Henry, 221 S.W.3d 609, 620 (Tex. 2007); Citibank, N.A. v. Estes, 385 S.W.3d 671, 676 (Tex. App.—Houston [14th Dist.] 2012, no pet.). See Low, 221 S.W.3d at 620; Citibank, N.A., 385 S.W.3d at 676; Gunn v. Fuqua, 397 S.W.3d 358, 373-75 (Tex. App.—Dallas 2013, pet. denied).
Citibank, N.A. v. Estes, 385 S.W.3d 671, 676 (Tex. App.-Houston [14th Dist.] 2012, no pet.). A conclusory explanation is likewise insufficient.
"The absence of an explanation of how a trial court determined to impose an especially severe sanction is inadequate." Citibank, N.A. v. Estes, 385 S.W.3d 671, 676 (Tex. App.- Houston [14th Dist.] 2012, no pet.). A trial court must "explain that it considered lesser sanctions before imposing death penalty sanctions." Id.
Because neither of the trial court’s orders imposing sanctions on Darnell specified the legal basis for the orders, we start our discussion by identifying all potential bases for the courts' orders.SeeCitibank, N.A. v. Estes , 385 S.W.3d 671, 674 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (citing Sprague v. Sprague , 363 S.W.3d 788, 803 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) (identifying basis for trial court’s sanctions order among potential bases) ). We discern three possible bases for the trial court’s order.
A trial court is required to explain that it considered lesser sanctions before imposing death penalty sanctions." First Transit, 499 S.W.3d at 592 (quoting Citibank, N.A. v. Estes, 385 S.W.3d 671, 676 (Tex. App.—Houston [14th Dist.] 2012, no pet.)); see also In re Melcher, No. 14-16-00130-CV, 2017 WL 1103549, at *5 (Tex. App.—Houston [14th Dist.] March 23, 2017, orig. proceeding) (mem. op.) ("[T]he trial court abused its discretion by granting death penalty sanctions without offering a reasoned explanation for not considering a less stringent sanction . . . ."). Conclusory statements that lesser sanctions were considered are not sufficient to meet the standard.
its of the allegedly sanctionable actions, we conclude the trial court erred when it assessed 'death penalty' sanctions against The Shops at Legacy because the record does not show the trial court considered and analyzed the availability of less stringent sanctions and whether such sanctions would fully promote compliance."); In re M.J.M., 406 S.W.3d 292, 298 (Tex. App.—San Antonio 2013, no pet.) (despite litigant's "intentional and blatant" abuse of the discovery process for several months, the trial court abused its discretion by imposing death penalty sanctions without first testing or considering less stringent sanctions before imposing death penalty sanctions); Gunn v. Fuqua, 397 S.W.3d 358, 375 (Tex. App.—Dallas 2013, pet. denied) (trial court abused its discretion in imposing death penalty sanctions without considering less stringent sanctions despite evidence of litigant's dilatoriness in failing to designate experts, produce expert reports, and comply with scheduling orders); Citibank, N.A. v. Estes, 385 S.W.3d 671, 676-77 (Tex. App.—Houston [14th Dist.] 2012, no pet.) ("The assessment of death penalty sanctions as an initial sanction, without explanation, is excessive."); Mendez v. Sweeny Cmty. Hosp., No. 14-02-00843-CV, 2003 WL 21192136, at *3 (Tex. App.—Houston [14th Dist.] May 22, 2003, no pet.) (mem. op.) (death penalty sanction was excessive and trial court should have imposed a lesser sanction to address litigant's failure to answer questions in deposition and failure to respond to discovery requests after the trial court's oral order to comply); In re Harvest Communities of Houston, Inc., 88 S.W.3d 343, 349 (Tex. App.—San Antonio 2002, orig. proceeding) (conditionally granting mandamus relief where trial court failed to adequately consider lesser sanctions before imposing death penalty sanctions for discovery abuse). We sustain Primo's first issue and reverse the trial court's grant of death penalty sanctions against Primo.