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Dumais v. Haggas

Court of Appeals of Texas, Third District, Austin

October 2, 2019

David Dumais, Appellant
v.
Charles Haggas and Space Chimp, Inc., Appellees

          FROM THE 250TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-18-002681, THE HONORABLE TIM SULAK, JUDGE PRESIDING

          Before Justices Triana, Smith, and Shannon [*]

          MEMORANDUM OPINION

          BOB E. SHANNON, JUSTICE

         This is an appeal from the order of the district court of Travis County striking the appellant's pleadings as a discovery sanction. Appellant is David Dumais and appellees are Charles Haggas and Space Chimp, Inc. (collectively, Space Chimp). This Court will affirm the order.

         In the underlying suit, Dumais claimed that the software he bought from Space Chimp was non-functional. Dumais had previously asserted the identical claim in a suit in Travis County district court; however, he nonsuited that case in May 2018 after failing to respond to Space Chimp's written discovery requests. Two days later, he refiled the same claim in the instant lawsuit. Thus commenced Dumais's pattern of delay in complying with Space Chimp's discovery requests to obtain electronic files furnished to Dumais.

         Space Chimp asserts, in summary, that Dumais nonsuited the first lawsuit to avoid answering discovery; that the electronic files were finally produced almost seven months after originally due in the first case; that Dumais missed four separate deadlines to produce the electronic files; and that he violated two separate court orders containing lesser sanctions for not producing the files.

         More specifically, as the result of Dumais's continued failure to produce the files, Space Chimp filed a motion to compel production. After hearing, the district court ordered production of the electronic files within ten days and awarded Space Chimp $600 in attorneys' fees. The court's order provided further that failure to produce the files by the ten-day deadline could result in further sanctions against Dumais "up to and including striking [Dumais's] Petition."

         Having waited nearly fifty days past the court's ordered deadline and not having received the electronic files, Space Chimp filed a motion to strike Dumais's pleadings and dismiss the case. After hearing, the district court ordered Dumais to produce the requested files by December 11, 2018. The order further provided that if such files were not produced by that date, Dumais's pleadings would be stricken and his suit dismissed. Instead of producing the requested files by the deadline, Dumais filed two more motions for extension of time, asserting his difficulties in "accessing and copying" the files.

         In response, Space Chimp filed its second motion for discovery sanctions requesting that Dumais's pleadings be stricken and the case be dismissed with prejudice. Dumais finally produced the requested electronic files on December 21, 2018.

         At the hearing on the second motion for sanctions, Dumais pointed out that the electronic files had been produced and that he would pay Space Chimp's attorneys' fees incurred "in filing the most recent motions." After hearing, the court took the matter under advisement. A few days later, the court requested proposed orders on the motion. On January 30, the court signed an order granting Space Chimp's second motion for discovery sanctions and ordering Dumais's pleadings stricken and all claims dismissed with prejudice unless Dumais paid $10, 000 to Space Chimp by March 1, 2019.

         Dumais filed an appeal from the sanctions order after the March 1 deadline had passed and without paying the $10, 000 fine. In his brief to this Court, Dumais asserts in a footnote that he does not "believe" that the order granting Space Chimp's motion for discovery sanctions is a "final, appealable judgment." He advances no argument or authority in support of his contention.

         Nearly twenty years ago the Texas Supreme Court settled the finality issue contrary to Dumais's "belief." In Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192-93 (Tex. 2001), the Court held:

A judgment issued without a conventional trial is final for purposes of appeal if and only if it either actually disposes of all claims and parties before the court, regardless of its language, or it states with unmistakable clarity, that it is a final judgment as to all claims and all parties.

         The January 30 sanctions order was rendered without a conventional trial, and it disposed of all claims and all ...


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