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Mcalister v. Grabs

Court of Appeals of Texas, Eleventh District

March 29, 2019

JAMES R. MCALISTER AND CONNIE FAYE MCALISTER, Appellants
v.
FRANK GRABS, JR. AND WIFE DELORES GRABS, Appellees

          On Appeal from the 259th District Court Shackelford County, Texas Trial Court Cause No. 2016-014.

          Panel consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J. [1]

          MEMORANDUM OPINION

          Jim R. Wright, Senior Chief Justice.

         After 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.

         When 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.

         After 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.

         After 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.

         Appellants 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.

         In an "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.

         The 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.

         At the 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.

         After 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.

         Six 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.

         In two 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 ...


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