Affirmed and Opinion Filed July 6, 2021
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00052-CV
SHAMIM CHOWDHURY AND LIZA CHOWDHURY, Appellants
V.
MATT SANDERS AND DRY FORCE LLC, Appellees
On Appeal from the 192nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-18-19347
MEMORANDUM OPINION
Before Justices Partida-Kipness, Pedersen, III, and Goldstein
Opinion by Justice Partida-Kipness
Pro se appellants Shamim and Liza Chowdhury appeal from the trial court’s
judgment striking their pleadings, dismissing their claims, and granting judgment on
appellees’ breach-of-contract counterclaim. In eight issues, appellants broadly
contend the trial court erred in imposing sanctions and rendering judgment for
appellees. We affirm the trial court’s judgment.
BACKGROUND
Shamim executed a written contract with Dry Force LLC on October 2, 2018,
to remediate water damage to appellants’ house. Shortly after Dry Force began
performance under the contract, Shamim asked Dry Force to terminate its services
and remove its equipment from the house. Dry Force did so, and Shamim signed a
Certificate of Completion and Satisfaction in which he attested the services “have
been completed to my satisfaction.” Two days after it terminated services, Dry Force
sent Shamim an invoice for services rendered. The invoice reflected a payment of
$105 and a remaining balance of $2,743.73. Appellants did not pay the balance, and
Dry Force filed a mechanic’s lien on appellants’ property.
Appellants filed suit on December 31, 2018, against Dry Force and Matt
Sanders, Dry Force’s general manager, alleging that Dry Force did not perform
services under the contract, but performed “work as they wished.” Thus, appellants
alleged that Dry Force’s mechanic’s lien was invalid and fraudulent. Appellants
sought a declaratory judgment to that effect and statutory and exemplary damages.
Appellees answered and filed counterclaims for breach of contract, suit on sworn
account, promissory estoppel, and quantum meruit. Shortly after filing suit,
appellants filed a motion for no-evidence summary judgment on their claims. The
motion also included additional, previously unpleaded, claims for alleged DTPA
violations. The trial court denied appellants’ motion.
Appellees issued discovery requests to appellants. When appellants did not
respond, appellees’ counsel contacted Shamim by email to request responses.
Shamim indicated that he had mailed the responses to appellees’ counsel. Counsel
did not receive the responses as promised, and appellees filed a motion to compel
appellants’ discovery responses. The trial court granted appellees’ motion and
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ordered appellants to respond to the discovery requests and to pay $1,000 in
attorney’s fees. Appellants still did not produce discovery responses. Appellees filed
a motion for sanctions, asking the trial court to strike appellants’ pleadings, grant
judgment on Dry Force’s breach-of-contract counterclaim, and award damages of
$2,743.73 and attorney’s fees of $4,500. The trial court held a hearing and granted
appellees’ motion in part, issuing a final judgment striking appellants’ pleadings,
dismissing their claims, and finding that Shamim breached his contract with Dry
Force. The trial court did not award contract damages, however, but awarded Dry
Force $4,500 in attorney’s fees. This appeal followed.
STANDARD OF REVIEW
We review a trial court’s order imposing sanctions for an abuse of discretion.
See Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Shops at Legacy (Inland) Ltd.
P’ship v. Fine Autographs & Memorabilia Retails Stores, Inc., 418 S.W.3d 229, 232
(Tex. App.—Dallas 2013, no pet.). A trial court abuses its discretion if it acts without
reference to any guiding rules and principles to the extent the act was arbitrary or
unreasonable. Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006)
(per curiam); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004); Shops at
Legacy, 418 S.W.3d at 232. We review the entire record to determine whether the
imposition of sanctions constitutes an abuse of discretion. Am. Flood Research, 192
S.W.3d at 583; Shops at Legacy, 418 S.W.3d at 232.
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Discovery sanctions are authorized by Texas Rule of Civil Procedure 215.2.
See TEX. R. CIV. P. 215.2; Shops at Legacy, 418 S.W.3d at 232. If a trial court finds
a party is abusing the discovery process in seeking, making, or resisting discovery,
then the trial court may, after notice and hearing, impose any appropriate sanction
authorized by rule 215.2(b)(1)–(5) and (8). TEX. R. CIV. P. 215.3; Shops at Legacy,
418 S.W.3d at 232. Appropriate sanctions include those often referred to as “death
penalty” sanctions that strike out “pleadings or parts thereof,” dismiss “with or
without prejudice the actions or proceedings or any part thereof,” and render “a
judgment by default against the disobedient party.” TEX. R. CIV. P. 215.2(b)(5). Such
sanctions adjudicate claims and preclude presentation of the merits of the case. See
Cire, 134 S.W.3d at 840–41; TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d
913, 918 (Tex. 1991); Shops at Legacy, 418 S.W.3d at 232. The trial court may also
award attorney’s fees incurred in response to a party’s failure to obey the court’s
discovery order. TEX. R. CIV. P. 215.2(b)(8).
Although the choice of sanction is left to the sound discretion of the trial court,
the sanctions imposed must be just. See TEX. R. CIV. P. 215.2; TransAmerican, 811
S.W.2d at 916; Shops at Legacy, 418 S.W.3d at 232. There must be a “direct
relationship” between the abusive conduct and the sanction imposed, and the
sanction must not be excessive. See TransAmerican, 811 S.W.2d at 917; Shops at
Legacy, 418 S.W.3d at 232. The trial court must consider, but need not actually
impose, lesser sanctions before issuing a “death penalty” sanction. Cire, 134 S.W.3d
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at 840; TransAmerican, 811 S.W.2d at 917; Shops at Legacy, 418 S.W.3d at 232–
33.
ANALYSIS
Appellants bring eight issues on appeal that broadly contend the trial court
erred when it sanctioned appellants and issued judgment for appellees on their
breach-of-contract counterclaim. Appellees contend, however, that the sanctions
were appropriate because appellants flouted the trial court’s discovery order and the
trial court implemented lesser sanctions before striking appellants’ pleadings and
rendering judgment on appellees’ counterclaim.
A. “Death Penalty” Sanction
In five “supplemental” issues, appellants contend the trial court erred by
imposing sanctions for their failure to respond to appellees’ discovery requests.
Although not perfectly clear from their briefing, appellants appear to contend that
the trial court erred by failing to issue findings to support its sanction orders,
imposing a “fine” and “death penalty” sanctions, and failing to find that appellees
did not properly serve the discovery requests and motions at issue.
At the outset, we note that appellants’ briefing is virtually devoid of any cited
authority. Although appellants quote portions of rule of civil procedure 21a and
Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992), they fail to explain how these
authorities apply to their contentions that they did not receive service of appellees’
motions and that the trial court abused its discretion in awarding appellees’ $1,000
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in attorney’s fees when it granted their motion to compel. Appellants fail to cite any
authority to support their remaining contentions, and appellants’ arguments on these
points consist only of unsupported, conclusory statements.
We recognize that appellants are acting pro se and we must construe their brief
liberally. Amrhein v. Bollinger, 593 S.W.3d 398, 401 (Tex. App.—Dallas 2019, no
pet.) (citing Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989)). But
our rules of appellate procedure have specific requirements for briefing, and the law
is well-settled that a party proceeding pro se must comply with all applicable rules.
TEX. R. APP. P. 38.1; Amrhein, 593 S.W.3d at 401; Harris v. Showcase Chevrolet,
231 S.W.3d 559, 561 (Tex. App.—Dallas 2007, no pet.). This includes making “a
clear and concise argument for the contentions made, with appropriate citations to
authorities and to the record.” TEX. R. APP. P. 38.1(i). In this regard, appellants have
failed to adequately brief these issues.
Additionally, appellants have failed to preserve error for our review. Our rules
for preservation of error preclude a party from raising a complaint for the first time
on appeal. Burbage v. Burbage, 447 S.W.3d 249, 258 (Tex. 2014). To preserve a
complaint on appeal, Rule 33.1 of the Texas Rules of Appellate Procedure requires
the record to show that a specific complaint was made to the trial court by a timely
request, objection, or motion, and that the trial court ruled on that request, objection,
or motion. TEX. R. APP. P. 33.1(a); see also Jurgens v. Martin, No. 11-18-00316-
CV, – S.W.3d –, 2021 WL 1033306, at *13 (Tex. App.—Eastland Mar. 18, 2021,
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no pet.) (appellant failed to preserve complaint that sanctions were improperly based
on discovery order issued in prior probate proceeding by not objecting on that
ground); McCollum v. The Bank of New York Mellon Tr. Co., 481 S.W.3d 352, 359
(Tex. App.—El Paso 2015, no pet.) (error not preserved because appellant failed to
object to order striking affidavit); Prade v. Helm, 725 S.W.2d 525, 526–27 (Tex.
App.—Dallas 1987, no writ) (party waived error by failing to specifically object that
it received insufficient notice of a sanctions motion, did not request additional time
to respond to the motion, and allowed the sanctions hearing to go forward without
obtaining a ruling from the trial court regarding notice). There is no indication in the
record that appellants responded to appellees’ motion to compel or motion for
sanctions. Appellants likewise failed to raise an objection to the trial court’s rulings
on these motions. Accordingly, appellants failed to preserve error regarding the trial
court’s sanction orders for our review. See TEX. R. APP. P. 33.1.
Regardless, the record reflects that appellees served discovery requests on
appellants by the eFiling system on February 19, 2018. Appellees’ counsel properly
certified service of these requests, and exhibits attached to appellees’ motion to
compel discovery reflect that the eFiling system successfully delivered the
documents to Shamim’s email address on record. Yet, appellants did not respond to
appellees’ discovery requests or the trial court’s order compelling their responses.
Moreover, the record reflects that Shamim claimed he had mailed responses to
appellees’ counsel, when, in fact, he had not. The record also reflects that appellees’
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motions were served on appellants in accordance with the rules of civil procedure,
and appellants did not respond. Furthermore, before the trial court ordered “death
penalty” sanctions, it imposed lesser sanctions by ordering appellants to respond to
the discovery requests and to pay $1,000 in attorney’s fees. Yet, appellants still did
not comply. Thus, we conclude the trial court did not abuse its discretion in ordering
“death penalty” sanctions. See TransAmerican, 811 S.W.2d at 917. The trial court
was not required to issue findings of fact to support its order, and the record does
not reflect that appellants requested findings. See Chrysler Corp. v. Blackmon, 841
S.W.2d 844, 852 (Tex. 1992); Shops at Legacy, 418 S.W.3d at 233. Accordingly,
we overrule appellants first, second, third, fourth, and sixth supplemental issues.
B. Judgment on Appellees’ Counterclaim
In their two main issues and their fifth “supplemental” issue, appellants
contend the trial court erred in granting judgment on appellees’ breach-of-contract
counterclaim because the claim was barred by section 16.069 of the civil practice
and remedies code and the statute of frauds, and appellants did not have notice the
trial court was going to rule on the claim at the sanctions hearing. Appellees contend
that their counterclaim was not barred, and the judgment as a sanction for appellants’
refusal to respond to appellees’ discovery requests and obey the trial court’s
discovery order was permitted and appropriate.
As with their briefing on issues regarding the trial court’s order striking their
pleadings, appellants fail to cite any authority in support of their issues regarding the
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judgment on appellees’ counterclaim. Indeed, appellants fail to offer any argument
whatsoever on their fifth “supplemental” issue. Thus, appellants have failed to
adequately brief the issues. See TEX. R. APP. P. 38.1(i). Appellants likewise failed to
preserve the issues for appeal because they did not object to the trial court’s rulings
on appellees’ motions. See TEX. R. APP. P. 33.1(a)
Regardless, section 16.069 and the statute of frauds are inapplicable to
appellees’ counterclaim. Section 16.069(a) of the civil practice and remedies code
applies only to counterclaims that would be barred by limitations if filed as a separate
action. TEX. CIV. PRAC. & REM. CODE § 16.069(a). The record reflects that appellees
filed their counterclaim within the four-year limitations period generally applicable
to breach-of-contract claims. See Via Net v. TIG Ins. Co., 211 S.W.3d 310, 315 (Tex.
2006). Additionally, the contract at issue is not a type of contract governed by the
statute of frauds. See TEX. BUS. & COM. CODE § 26.01 (identifying contracts subject
to statute of frauds and enforceability requirements). Thus, appellees’ counterclaim
for breach of contract was not barred by section 16.069 or the statute of frauds.
Additionally, the trial court had discretion to render judgment on appellees’
counterclaim based on the presumption that any defense appellants may have
asserted lacked merit. TransAmerican, 811 S.W.2d at 918 (“[I]f 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.”).
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Accordingly, we overrule appellants’ first and second issues and fifth
“supplemental” issue.
CONCLUSION
Appellants have failed to adequately brief and preserve error on their issues.
Regardless, the record does not support appellants’ arguments on appeal.
Accordingly, we overrule all of appellants’ issues and affirm the trial court’s
judgment.
/Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
JUSTICE
200052F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
SHAMIM CHOWDHURY AND On Appeal from the 192nd Judicial
LIZA CHOWDHURY, Appellants District Court, Dallas County, Texas
Trial Court Cause No. DC-18-19347.
No. 05-20-00052-CV V. Opinion delivered by Justice Partida-
Kipness. Justices Pedersen, III and
MATT SANDERS AND DRY Goldstein participating.
FORCE LLC, Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellees MATT SANDERS AND DRY FORCE LLC
recover their costs of this appeal from appellants SHAMIM CHOWDHURY AND
LIZA CHOWDHURY.
Judgment entered July 6, 2021.
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Shamim Chowdhury and Liza Chowdhury v. Matt Sanders and Dry Force LLC
Combined Opinion