Court of Appeals of Texas, Third District, Austin
THE 250TH DISTRICT COURT OF TRAVIS COUNTY NO.
D-1-GN-18-002681, THE HONORABLE TIM SULAK, JUDGE PRESIDING
Justices Triana, Smith, and Shannon [*]
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.
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.
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.
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
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.
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.
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
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.
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.
January 30 sanctions order was rendered without a
conventional trial, and it disposed of all claims and all