Court of Appeals of Texas, Ninth District, Beaumont
Submitted on April 1, 2019
Appeal from the 418th District Court Montgomery County, Texas
Trial Cause No. 17-04-04179-CV
McKeithen, C.J., Kreger and Johnson, JJ.
CHARLES KREGER Justice
appeals the trial court's death penalty sanctions in his
suit for divorce. In three issues before the Court, Alfonso
argues that the trial court erred when it assessed death
penalty sanctions against him by striking his pleadings, by
not reducing its order to writing, and by not serving him
with a copy of the "Trial Preparation Order." We
affirm in part, and reverse and remand in part, the judgment
of the trial court.
and Vondia Vega were married in January 2009. On April 3,
2017, Vondia filed for divorce. Alfonso filed a counter
petition for divorce on April 17, 2017. On June 13, 2017, the
trial court purported to notify Vondia's and
Alfonso's counsel via letter of its scheduling order and
trial preparation order. The court addressed the letter to
both Vondia and Alfonso's trial counsel and listed each
attorney's fax number. No address for either attorney
appears on the cover letter.
to the letter was a scheduling order that notified the
parties of discovery deadlines and when their case would be
set for pretrial conference and trial. The scheduling order
set the pretrial conference for October 20, 2017, at 9:00
a.m. In addition, the trial court attached a trial
preparation order that stated, "DOCKET CALL-PRETRIAL
CONFERENCE is set in this matter for 9:00 a.m. on Friday
October 20, 2017." The trial preparation order
required that both parties appear on that date for the
pretrial conference and to be prepared to discuss all issues
regarding the case, including settlement.
trial court attempted to fax copies of the scheduling letter
and its attachments to both attorneys. Per the clerk's
record, the fax number for Alfonso's attorney failed,
showing "NO RESPONSE[, ]" prompting the trial court
to mail a copy of the scheduling letter and its attachments
to Alfonso's attorney. Alfonso did not file any additional
documents before the October 20th pretrial conference.
October 20, 2017, the date of the pretrial conference, Vondia
and her trial counsel appeared, but Alfonso and his trial
counsel did not appear. Vondia's attorney informed the
trial court that they had attempted to reach Alfonso's
attorney, but were not successful. Vondia's counsel also
told the trial court that the parties had been scheduled for
mediation, but it was cancelled. The following exchange
occurred between Vondia's counsel and the trial court.
THE COURT: [Y]ou and your client are the only ones here. You
are not asking me to do anything else?
[Vondia's Attorney:] Well, if you could nonsuit his
pleadings that would be great, Judge.
THE COURT: Are you asking me to strike the Respondent's
pleading for failure to appear at ...