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Levasseur v. Avezzano

Court of Appeals of Texas, Tenth District

August 7, 2019

TIM LEVASSEUR AND KRISSY LEVASSEUR, INDIVIDUALLY, AND D/B/A LIBERTY COIN, Appellants
v.
STEVE AVEZZANO, Appellee

          From the County Court at Law Ellis County, Texas, Trial Court No. 15-C-3523

          Before Justice Davis, Justice Neill, and Judge Coley. [2]

          MEMORANDUM OPINION

          JOHN E. NEILL JUSTICE.

         Steve Avezzano filed suit against Tim and Krissy Levasseur, individually and d/b/a Liberty Coin, alleging causes of action for theft, fraud, conversion, DTPA, breach of contract, and quantum meruit. The trial court issued an order striking the Levasseurs' only pleading[1] as a discovery sanction. The trial court later entered judgment in favor of Avezzano. We affirm.

         Background Facts

         Tim Levasseur, d/b/a Liberty Coin, purchased gold and coins from Avezzano. Avezzano testified that in February 2015 and April 2015, he sent coins to Levasseur in accordance with their agreement, but Levasseur did not send payment for the coins. Avezzano requested Levasseur to pay for the coins or return them. After not receiving payment or return of the coins, Avezzano filed suit on August 31, 2015 against the Levasseurs seeking the price of the coins, $200, 000, in damages. On September 30, 2015, the Levasseurs filed special exceptions to the petition. The Levasseurs did not file any other pleadings.

         On December 21 2015, the parties entered into a settlement agreement where the Levasseurs would pay Avezzano $200, 000 in certain installments. The Levasseurs paid the first installment of $25, 000 to Avezzano as part of the agreement, but failed to make the rest of the payments. Avezzano proceeded with the lawsuit and attempted discovery.

         Beginning in August 2016, the Levasseurs failed to appear at noticed depositions. On November 2, 2016, Avezzano filed a motion for sanctions against the Levasseurs for failing to attend the numerous properly noticed depositions. On November 30, 2016, the trial court granted the motion for sanctions and ordered the Levasseurs to pay costs and attorney's fees. The trial court also warned the Levasseurs that any further failure to comply could result in the striking of their pleadings. On December 1, 2016, Avezzano's attorney sent deposition notices to the Levasseurs for December 6, 2016. The Levasseurs again failed to appear, and Avezzano filed a second motion for sanctions. The trial court granted the motion for sanctions, ordered the Levasseurs to pay costs and attorney's fees, and struck their pleadings. The trial court further entered a default judgment against the Levasseurs as to liability. The trial court ordered that the cause would remain on the trial docket for January 31, 2017, where Avezzano could appear and offer proof of damages, costs, and attorney's fees. The Levasseurs were provided with notice of the January 31, 2017 trial setting.

         On January 31, 2017, the Levasseurs failed to appear for trial, but their attorney was present. The trial court awarded Avezzano $175, 000 in damages and also awarded attorney's fees.

         Striking the Pleadings

         In the first issue, the Levasseurs argue that the trial court erred in granting "death penalty" sanctions. A trial court's ruling on a motion for sanctions is reviewed under an abuse of discretion standard. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985). The test for an abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action, but "whether the court acted without reference to any guiding rules and principles." Downer v. Aquamarine Operators, Inc., 701 S.W.2d at 241. The trial court's ruling should be reversed only if it was arbitrary or unreasonable. Cire v. Cummings, 134 S.W.3d at 839.

         Rule 215.2 of the Texas Rules of Civil Procedure provides that if:

a party fails to comply with proper discovery requests or to obey an order to provide or permit discovery, … the court in which the action is pending may, after notice and hearing, make such orders in regard to the failure as are just, and among others the following:
(1) an order disallowing any further discovery of any kind or of a particular kind by ...

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