Affirmed and Memorandum Opinion filed February 5, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-02-00878-CV
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JAMSHID NOSHARI, Appellant
V.
SOUTHWEST SERVICE CENTER, LTD., Appellee
On Appeal from the County Court at Law No. 4
Harris County, Texas
Trial Court Cause No. 757,748
M E M O R A N D U M O P I N I O N
Appellee sued appellant for recovery of rent and appellant filed a counterclaim for damages incurred when the leased premises had flooded. As a sanction for discovery abuse, the trial court struck appellant=s pleadings and counterclaim with prejudice. The trial court entered judgment in favor of appellee in the sum of $17,092.68 in damages and $9,000.00 in attorney=s fees. In four issues, appellant contends (1) he was not provided proper notice of the hearing on the motion for sanctions, (2) he was not provided proper notice of the evidentiary hearing on damages, (3) the trial court erred in imposing death penalty sanctions without considering lesser sanctions, and (4) the trial court erred in dismissing his counterclaim with prejudice as a sanction. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant leased commercial office and warehouse space from appellee. The lease terminated on September 30, 2000. The lease provided that holdover rent beyond that date would be double the normal rent. Appellant failed to vacate the space on the termination date.
On August 22, 2001, appellee sued appellant for the unpaid holdover rent. Appellant attached interrogatories and requests for disclosure and production to its petition. Appellant=s responses were due by October 1, 2001.
Appellant answered and filed a counterclaim for damages to his inventory that resulted from flooding of the space in the summer of 1998.
Appellant failed to answer the outstanding discovery by October 1, 2001. On January 22, 2002, appellee filed a motion to compel and for sanctions. On January 29, 2002, the trial court ordered appellant to pay $500.00 in attorney=s fees and answer the outstanding discovery by February 12, 2002.
Appellant failed to answer the outstanding discovery by February 12, 2002. On April 12, 2002, appellee filed a motion to strike appellant=s pleadings and counterclaim. On April 17, 2002, the trial court granted the motion, ordering that appellee recover its damages from appellant and dismissing appellant=s counterclaim with prejudice.
On May 16, 2002, the trial court conducted a hearing on appellee=s damages. On May 22, 2002, the trial court entered a final judgment for appellee in the amount of $17,092.68 in damages and $9,000.00 in attorney=s fees.
On June 21, 2002, appellant filed a motion for new trial. On August 5, 2002, appellant filed an amended motion for new trial. On August 20, 2002, appellant filed his notice of appeal.
ANALYSIS
I. Notice of the hearings.
In his first and second issues, appellant contends the trial court erred (1) in granting sanctions because he was not provided proper notice of the hearing on the motion for sanctions and (2) in granting a judgment on evidence offered at the trial because he was not provided proper notice of the trial. Because both notices were sent by facsimile, appellant was entitled to six days= notice, which he was not provided. See Tex. R. Civ. P. 21, 21a. Appellant did not raise these issues until his amended motion for new trial, filed seventy-five days after the final judgment.
A complaint of inadequate notice under rules 21 or 21a of the Texas Rules of Civil Procedure is waived unless preserved by a timely complaint. Walker v. Gonzales County Sheriff=s Dept., 35 S.W.3d 157, 159 (Tex. App.CCorpus Christi 2000, pet. denied); see also Tex. R. App. P. 33.1. This complaint may be raised in a motion for new trial. Walker, 35 S.W.3d at 159. If a motion for new trial is filed more than thirty days after the trial court signs a final judgment, however, it is untimely and cannot form the basis of an appellate complaint. Moritz v. Preiss, 121 S.W.3d 715, 720B21 (Tex. 2003).
Because appellant did not file his amended motion for new trial until seventy-five days after the final judgment, we cannot consider it. Appellant has therefore failed to preserve his first two issues for appeal. Appellant=s first and second issues are overruled.
II. Death penalty sanctions.
In his third and fourth issues, appellant contends the trial court erred in imposing death penalty sanctions without considering the imposition of lesser sanctions and in dismissing his counterclaim with prejudice as a sanction.
We review a trial court=s decision imposing sanctions for discovery abuse for an abuse of discretion. Bodnow Corp. v. City of Hondo, 721 S.W.2d 839, 840 (Tex. 1986). In order for an imposition of sanctions to be just, a direct relationship must exist between the discovery abuse and the sanction imposed, and the sanction must not be excessive. TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991). In order to satisfy the second prong of the test, the trial court must consider whether lesser sanctions would be sufficient. Id.
Lesser sanctions can include monetary penalties, attorney=s fees, contempt, or other punishment. See Andras v. Mem. Hosp. Sys., 888 S.W.2d 567, 572 (Tex. App.CHouston [1st Dist.] 1994, writ denied). An order compelling discovery is not an attempt at a lesser sanction unless coupled with language that future compliance can result in dismissal. See GTE Mobilnet of S. Tex. Ltd. P=ship v. Telcell Cellular, Inc., 955 S.W.2d 286, 298 (Tex. App.CHouston [1st Dist.] 1997, writ denied); Andras, 888 S.W.2d at 572.
When it entered its order compelling discovery, the trial court did not state that future compliance could result in dismissal. The trial court did, however, order appellant to pay attorney=s fees to appellee in the order, a lesser sanction. See Andras, 888 S.W.2d at 572. Despite this sanction and despite the order compelling him to respond, appellant still did not respond to the discovery. He also did not respond to the motion to compel or the motion to strike his pleadings.[1] The trial court=s determination that further lesser sanctions would be insufficient fell within its discretionary authority, and thus we cannot say that it abused its discretion even if we would have decided the matter differently. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985). Appellant=s third issue is overruled.
When a party fails to comply with a proper discovery request, the sanction can include Aan order . . . dismissing with or without prejudice the action or proceedings or any part thereof . . . .@ Tex. R. Civ. P. 215.2(b)(5). A sanction that prevents trial on the merits cannot be justified absent bad faith or callous disregard for the rules of discovery. Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex. 1992). A death penalty sanction cannot be imposed unless the trial court finds the discovery abuse justifies a presumption that the party=s claim lacks merit. TransAmerican, 811 S.W.2d at 918. The trial court may presume that an asserted claim lacks merit when a party refuses to produce material evidence in spite of lesser sanctions. Id.
Appellant failed to answer appellee=s request for disclosure, set of requests for production, and set of interrogatories. The record does not indicate what evidence appellee=s requests sought. Absent a record of the evidence sought, we can not determine that the trial court abused its discretion in determining that the evidence was material, especially in light of the broad range of discovery appellant failed to respond to. But beyond this, as we noted earlier, appellant also responded neither to the motion to compel nor to the motion for sanctions, which asked the trial court to strike appellant=s pleadings. At this point, it was not unreasonable for the trial court to presume appellant=s claim lacked merit. See id.
The facts of this case are distinguishable from those in Hamill v. Level, 917 S.W.2d 15 (Tex. 1996). In the Hamill case, lesser sanctions were never imposed. See id. at 16. The Texas Supreme Court emphasized the continued validity of its prior conclusion that, Aas a general rule, lesser sanctions must be tested before death penalty sanctions may be imposed.@ Id. at 17 n.1. The Supreme Court therefore held that the imposition of a death penalty sanction was premature. Id. at 16. The party in Hamill also served his answers to the discovery request just before the hearing to dismiss. Id. In this case, a lesser sanction had been imposed without any response from appellant, and two motions for sanctions had been filedCone asking that appellant=s pleadings be strickenCwithout any response from appellant. On these facts we cannot say the imposition of a death penalty sanction was premature. See TransAmerican, 811 S.W.2d at 918. Appellant=s fourth issue is overruled.
The judgment of the trial court is affirmed.
/s/ Wanda McKee Fowler
Justice
Judgment rendered and Memorandum Opinion filed February 5, 2004.
Panel consists of Justices Yates, Hudson, and Fowler.
[1] Appellee states in its brief that appellant failed to appear at the hearing on the motion to compel, but does not state whether appellant failed to appear at the at the hearing on the motion to strike his pleadings. The record does not conclusively indicate whether appellant appeared at either hearing.