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Griggs v. Dalhart Butane & Equipment Co., Ltd.

Court of Appeals of Texas, Seventh District, Amarillo

June 25, 2019


          On Appeal from the 84th District Court Ochiltree County, Texas Trial Court No. 14123, Honorable Curt Brancheau, Presiding

          Before QUINN, C.J., and CAMPBELL and PARKER, JJ.


          James T. Campbell, Justice.

         Dalhart 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 otherwise affirmed.


         According 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.

         Griggs 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.

         On 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.

         On 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 [Griggs]."

         On 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 withdraw.

         Etter's 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.

         Etter 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 attorney's fees.

         The court granted Etter's motion for summary judgment in all respects and rendered final judgment. This appeal followed.


         Issues One ...

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