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Mullins v. Mullins

Court of Appeals of Texas, Second District, Fort Worth

July 27, 2017

TRACY JO MULLINS APPELLANT
v.
MATT ROBERT MULLINS APPELLEE

         FROM COUNTY COURT AT LAW NO. 2 OF PARKER COUNTY TRIAL COURT NO. CIV-16-0139

          PANEL: LIVINGSTON, C.J.; GABRIEL and KERR, JJ.

          MEMORANDUM OPINION [1]

          TERRIE LIVINGSTON CHIEF JUSTICE

         To impose "death-penalty" sanctions for litigation misconduct (including failing to properly respond to discovery requests), a trial court must consider whether lesser sanctions would address the misconduct and provide a reasoned explanation concerning the appropriateness of the sanction imposed. In this divorce case, the trial court imposed death-penalty sanctions against appellant Tracy Jo Mullins without providing any such reasoned explanation concerning the appropriateness of a death-penalty sanction as the initial sanction. Therefore, we reverse the trial court's order imposing sanctions along with the final decree of divorce that depends upon the sanctions order, and we remand this case for further proceedings.

         Background Facts

         This appeal arises from a dissolution of a marriage pursuant to death-penalty sanctions. Tracy filed for a divorce from appellee Matt Robert Mullins in February 2016, and Matt answered the petition and filed a counter-petition for divorce in March 2016. In his counter-petition, Matt pled claims of forgery, breach of fiduciary duty, fraud, and misapplication of community property.

         Over the next several months, Tracy largely failed to cooperate with oral and written discovery. In late April 2016, Matt filed a combined motion for sanctions and motion to compel discovery. In that motion, he alleged that Tracy had not timely responded to written discovery requests and that during a deposition, Tracy had refused to answer several questions while being "hostile, defiant, and argumentative." Matt attached excerpts from the deposition showing that Tracy had refused to answer several questions.

         The trial court set a hearing on Matt's motion. But without holding a hearing, as part of a June 2016 temporary order that concerned other matters such as conservatorship and possession of the parties' children and child support, the trial court stated that it would "take up and consider [Matt's] Motion for Sanctions and Motion to Compel Discovery at a later date." In that order, the trial court found that Matt's attorney's fees for preparing the motion for sanctions comprised $11, 385, but the trial court did not order Tracy to pay those fees. The trial court ordered Tracy to fully respond to Matt's discovery requests.

         Later, the trial court again set a hearing on Matt's motion for sanctions and motion to compel discovery. The parties then agreed to an order that addressed those motions. In the agreed order, the trial court found that Tracy had failed to respond to Matt's written discovery requests and had failed to answer deposition questions. The court did not sanction Tracy, but the court again ordered her to respond to the discovery requests. The trial court expressly deferred any decision on sanctions "until [a] later hearing." Tracy and Matt signed the agreed order.

         Tracy did not answer the discovery requests to Matt's satisfaction, so he filed another motion for sanctions. He contended that Tracy had failed to provide any answers to interrogatories. He also alleged that while Tracy had produced some documents, the documents were not "identified nor categorized to a particular discovery request." Matt further alleged that Tracy had not provided an accounting that the trial court had ordered her to provide and had not appeared to answer previously unanswered deposition questions. Matt asked the trial court to impose "all available sanctions" against Tracy and to order her to pay his attorney's fees.

          The trial court set the second motion for sanctions for a hearing. At the hearing, Matt conceded that Tracy had produced some documents but stated that the documents had not been identified, organized, or Bates stamped. Matt also stated that Tracy had not responded at all to other discovery requests. Matt asked for severe sanctions, including the granting of a default judgment. He argued that the court had been lenient with Tracy and that she had not done "one single thing" that the court had asked her to do. His counsel stated, "I don't think issuing a third order compelling her to do anything is a solution. I think the real solution is to give us the pathway by which we can obtain a divorce, have you divide what there is to divide, and get on down the road for us."

         After completing the hearing, at which Tracy did not appear personally or through counsel, the trial court signed an order granting the motion. The court's order stated that the sanctions were "reasonable and necessary" and that Tracy had failed to respond to discovery despite the trial court's prior orders requiring her to do so. The trial court sanctioned Tracy by striking her pleadings, ordering her to pay Matt's expenses and attorney's fees, preventing her from conducting discovery, foreclosing her ability to present evidence of any claims or defenses, prohibiting her from refuting any of Matt's claims or defenses, and granting a default judgment in Matt's favor.[2] Neither the order granting sanctions nor the hearing leading to the order contained a statement by the trial court concerning why lesser sanctions would not be appropriate or why death-penalty sanctions were necessary.

         Six days after signing the sanctions order, the trial court held a default prove-up hearing without the presence of Tracy or her counsel. At that hearing, Matt's counsel stated that the sanctions order was an "integral part of . . . going forward on this matter." Matt testified about various matters related to the parties' marriage, child-rearing, property, and litigation history and presented documents relating to those issues.

         Following the hearing, the trial court signed a final decree of divorce. In the final decree, the court took judicial notice of its sanctions order. The court dissolved the parties' marriage, appointed Matt sole managing conservator of the children while appointing Tracy possessory conservator, gave each party periods of possession of the children, and ordered Tracy to pay monthly child support. The court also found that Tracy had committed forgery, fraud, and conversion and had breached a fiduciary duty to Matt, and the court ordered Tracy to pay $150, 000 in exemplary damages. Finally, the court entered a permanent injunction that ...


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