Court of Appeals of Texas, Seventh District, Amarillo
SABRINA K. GRIGGS, TRUSTEE OF THE GLORIA A. GRIGGS REVOCABLE LIVING TRUST, APPELLANT
DALHART BUTANE & EQUIPMENT CO., LTD., ETTER WATER WELL, LLC, D/B/A ETTER WATER WELL SERVICE AND DALE BALL, APPELLEES
Appeal from the 84th District Court Ochiltree County, Texas
Trial Court No. 14123, Honorable Curt Brancheau, Presiding
QUINN, C.J., and CAMPBELL and PARKER, JJ.
T. Campbell, Justice.
Butane & Equipment Company, Ltd. (DBE) sued Sabrina
Griggs, trustee of the Gloria A. Griggs Revocable Trust
(Griggs), to foreclose a mechanic's lien on trust
property. Griggs answered and filed a counterclaim. With
leave of court Griggs joined Etter Water Well Service, LLC
and its employee or agent, Dale Ball, as third-party
defendants. Etter filed a counterclaim against Griggs.
DBE's claim against Griggs, and Griggs' counterclaim,
were both resolved in favor of DBE through death-penalty
sanctions against Griggs for discovery abuse. Through a
hybrid motion Etter and Ball obtained summary judgment
against Griggs on Griggs' claim for damages and on
Etter's counterclaim for damages. The court incorporated
its rulings into a final judgment resolving all claims.
Griggs appeals. The judgment will be reversed in part and
to Griggs, DBE improperly drilled an irrigation well on trust
property in Ochiltree County, and did not complete the well
on time, causing Griggs to lose a crop. Griggs refused to pay
DBE for its work, prompting DBE's suit, and Griggs'
counterclaim. DBE served Griggs with interrogatories and
requests for production "concerning the claims and
damages alleged in" Griggs' counterclaim. Following
DBE's motion to compel and for attorney's fees, on
July 14, the court signed an order requiring Griggs to
respond, without objection, to DBE's written discovery
and within ten days pay DBE attorney's fees of $1, 100.
Griggs did not pay the $1, 100.
served responses to DBE's discovery requests but DBE
believed them inadequate. After July 29 correspondence to
Griggs identifying the four specific deficiencies it found in
Griggs' responses and demanding their correction, DBE
filed a second motion to compel and request for sanctions on
August 26. The motion pointed out that Griggs had not paid
the $1, 100 sanction ordered on July 14, and requested that
Griggs' counterclaim be struck. In a written response,
Griggs argued there could be no consideration of lesser
sanctions on submission only, that death-penalty sanctions
could not be used to adjudicate the merits of a defense, and
that she had named two experts with written opinions
disputing the adequacy of the well DBE drilled.
November 21, the trial court conducted a short live hearing.
The court heard only from counsel. Counsel for DBE gave a
brief assessment of the merits of the case from DBE's
perspective. He asked to have Griggs' counterclaim struck
because she had not provided evidence of damages and
DBE's liability. Counsel added that DBE did not seek
death-penalty sanctions on the entire case. Griggs could
still "put on a defense to our lien foreclosure
case." Besides requesting Griggs' counterclaim be
struck, DBE's counsel asked for a monetary sanction of
$6, 600 consisting of the yet unpaid $1, 100 awarded on July
14, plus current attorney's fees, and travel expenses.
December 1, the court signed an order dismissing Griggs'
counterclaims with prejudice and awarding DBE $6, 600. It
further ordered: "If [Griggs] fails to pay the above
specified sum to [DBE] within ten (10) days, then Final
Judgment shall be entered in favor of DBE and against
December 23, DBE filed its "motion for entry of final
judgment." It alleged Griggs had not paid the $6, 600
sanction awarded on December 1 and requested rendition of a
final judgment for damages, lien foreclosure, and
attorney's fees. On December 27, the court signed an
order granting all the relief requested by DBE. The record
indicates that in February 2017 Griggs deposited $6, 600 in
the registry of the court which DBE was later permitted to
claim against Griggs alleged she did not fully pay Etter for
drilling test wells. Griggs' pleadings alleged Etter was
vicariously liable for DBE's actions with regard to the
well it drilled. Griggs alleged Etter thus was jointly and
severally liable for the damage-producing conduct of DBE.
and Ball filed a hybrid motion for summary judgment on
January 12, 2017. In part, they alleged because Griggs'
claims against them were derivative of those against DBE and
because judgment was for DBE on the same claims, Griggs'
derivative claims against Etter and Ball could not succeed as
a matter of law. Concerning Griggs' failure to fully pay
for test wells, Etter sought a money judgment and an award of
court granted Etter's motion for summary judgment in all
respects and rendered final judgment. This appeal followed.