JAMES R. MCALISTER AND CONNIE FAYE MCALISTER, Appellants
FRANK GRABS, JR. AND WIFE DELORES GRABS, Appellees
Appeal from the 259th District Court Shackelford County,
Texas Trial Court Cause No. 2016-014.
consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J.
Wright, Senior Chief Justice.
the trial court entered "death penalty" discovery
sanctions in this case, it entered a default judgment against
James R. McAlister and Connie Faye McAlister. This is an
appeal from an earlier sanctions order and from the
subsequent death penalty sanctions and default judgment. We
reverse and remand.
Appellants failed to convey certain real property to Frank
Grabs, Jr. and Delores Grabs, Appellees, as provided in a
written contract, Appellees sued Appellants for specific
performance or, in the alternative, for damages; they also
sued for damages related to the loss of certain personal
property. Appellants hired an attorney, and the attorney
filed a general denial on behalf of Appellants.
Appellants had filed their general denial, Appellees served
Appellants' attorney with Plantiff's First Requests
for Production. Appellants did not respond to the request,
and Appellees filed a motion for sanctions. Appellants'
attorney was noticed of the date set for a hearing on the
motion for sanctions; neither Appellants nor their attorney
appeared at the hearing.
the hearing on that motion for sanctions, the trial court
ordered Appellants to respond to the discovery requests
within a certain time. The trial court also awarded Appellees
$2, 500 in attorney's fees for services rendered in
connection with the motion to compel.
did not respond as ordered by the trial court, and although
it does not appear in the record, Appellees apparently filed
another motion for sanctions. In any event, a second hearing
regarding discovery sanctions was held on September 21, 2016.
Once again, neither Appellants nor their attorney appeared
for the hearing.
"Order on Plaintiffs' Motion for Sanctions,"
signed by the trial court on October 3, 2016, the trial court
struck Appellants' general denial and "awarded
judgment by default in [the] cause of action." The trial
court set the date for a hearing on the issue of damages.
next day, October 4, 2016, the trial court signed another
order that arose from the same September hearing; the order
was entitled "Default Judgment and Order Setting Hearing
on Damages." In this order, the trial court found that
Appellants had failed to comply with discovery matters. The
trial court also found that Appellees' allegations had
been admitted, struck Appellants' general denial, and set
a date for a hearing on damages. Both the October 3, 2016
order and the October 4, 2016 judgment were filed with the
trial court clerk on September 29, 2016.
subsequent hearing on damages, Appellees, in accordance with
permission from the trial court, presented the trial court
with an affidavit by Appellee Frank Grabs. In his affidavit,
Grabs averred that the value of the business and the real
property that Appellants failed to convey was $24, 000 and
that the value of missing business and personal property was
$28, 000. Appellees also submitted an affidavit as to
attorney's fees. Neither Appellants nor their attorney
appeared at this hearing.
the hearing on damages, the trial court entered its final
judgment. The trial court awarded Appellees $52, 000 in
damages and $10, 000 in attorney's fees. It also awarded
an additional $10, 000 in attorney's fees in the event of
an appeal to the Court of Appeals and another $10, 000 in
attorney's fees if the case is appealed to the Texas
Supreme Court; the award of appellate attorney's fees was
not conditioned upon the outcome of the appeal. The trial
court signed the judgment on November 15, 2016.
months after the trial court entered its final judgment,
Appellants filed a "Notice of Appearance of
Counsel" in which Appellants named a new attorney as
their attorney of record. Appellants also filed a
"Notice of Restricted Appeal." It is that
restricted appeal that is before us now.
issues on appeal, Appellants assert that (1) the trial court
clearly erred when it granted death penalty sanctions and
imposed $2, 500 "discovery sanctions" against
Appellants and (2) there is error on the face of the record
because there is legally ...