IN THE

TENTH COURT OF APPEALS

No. 10-16-00003-CV

IN RE RAMSAY ALLEN RAMSEY

Original Proceeding

MEMORANDUM OPINION

In this original proceeding, Relator Ramsay Allen Ramsey seeks mandamus relief 

in the underlying divorce case in which Lezlie Suzanne Ramsey filed for divorce and 

Ramsay then filed a counterpetition. The trial court sanctioned Ramsay over the manner 

of Ramsay’s production of documents to his wife Lezlie Suzanne Ramsey.

In September 2014, Lezlie served her second request for production pertaining to 

the allegations in Ramsay’s counterpetition. After an extension, in December 2014, 

Ramsay served his response and objections, and while he did not produce any 

documents, he agreed to produce them “at a time and place mutually agreeable in 

advance by the parties.” 

At a September 10, 2015 hearing on one of Lezlie’s motions for enforcement, 
In re Ramsey Page 2

Ramsay’s attorney stated that she had ten boxes of documents, but a formal supplemental 

response to the request for production had not been prepared, nor had the documents 

been organized. The trial court instructed (“what needs to happen”) Ramsay’s attorney 

to prepare a formal response and to produce the documents in accordance with Rule of 

Civil Procedure 196.3(c), which provides:

(c) Organization. The responding party must either produce 

documents and tangible things as they are kept in the usual course of 

business or organize and label them to correspond with the categories in 

the request.

TEX. R. CIV. P. 196.3(c).

When documents were not produced, Lezlie filed her first motion to compel and 

for sanctions, and at a November 23, 2015 hearing on that motion, the trial court ordered 

Ramsay to produce copies of all the documents by 5:00 p.m. the next day.1 Six boxes of 

copied documents were delivered to Lezlie’s attorney the next day. The documents were 

not categorized and had minimal labeling (highlighting of Lezlie’s requests), and no 

formal response to the request for production was served.

On November 25, 2015, Lezlie filed her second motion to compel and for sanctions, 

complaining about the manner of Ramsay’s document production. At the December 15, 

2015 hearing on the second motion, the legal assistant for Lezlie’s attorney testified that 

she had gone through all six boxes of documents and could not ascertain with any degree 

of certainty what documents were responsive to which requests. 

 

1 The trial court did not explicitly state who was to pay the copying expense.
In re Ramsey Page 3

The trial court granted the second motion for sanctions in a January 4, 2016 order, 

finding that Ramsay’s document production was nonresponsive, evasive, and incomplete 

and that the documents were not organized as required by Rule 196.3(c).2 The trial court 

sanctioned Ramsay as follows:

IT IS ORDERED that Respondent not be allowed to support his 

affirmative claims made in his counter-petition or from introducing any 

evidence in support of those claims.

In his petition for writ of mandamus, Ramsay asserts in his first issue that the trial 

court abused its discretion by assessing the “death-penalty” sanction against him because 

Ramsay was not afforded procedural due process3 and because the sanction is not just.

We review a trial court’s ruling on a motion for sanctions for an abuse of discretion. 

Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004). Rule 215.2(b)(4) sets out the following 

discovery sanction: “an order refusing to allow the disobedient party to support or 

oppose designated claims or defenses, or prohibiting him from introducing designated 

matters in evidence.” TEX. R. CIV. P. 215.2(b)(4); see Cire, 134 S.W.3d at 839-41.

Lezlie contends that the trial court’s sanction is not a death-penalty sanction. We 

 

2 Ramsay’s petition incorrectly claims that the trial court found that his documents “appeared as kept in 

the ordinary business.” The trial court’s order actually states: “There was no allegation made by 

Respondent’s counsel at that hearing [the November 23 hearing] or at any other time during the pendency 

of the case that the materials were, as they now appear, appeared as kept in the ordinary business.”

3 Ramsay contends that, because he had objected to Lezlie’s requests for production and Lezlie had not 

sought a hearing on his objections, he was not required to produce the documents and Lezlie waived her 

right to the discovery. While it is true that any party may request a hearing on discovery objections and 

that a party need not request a ruling on that party’s own objections to preserve the objections, see TEX. R.

CIV. P. 193.4(a, b), the record is clear that, irrespective of his objections, Ramsay was offering the boxes of 

documents for production. It is therefore irrelevant that Lezlie did not seek a hearing on Ramsay’s 

objections, and we further disagree with Ramsay’s claim that the trial court essentially overruled Ramsay’s 

objections without a hearing.
In re Ramsey Page 4

disagree:

Any sanction that adjudicates a claim and precludes the presentation of the 

merits of the case constitutes a “death penalty” sanction. Adkins Servs., Inc. 

v. Tisdale Co., 56 S.W.3d 842, 845 (Tex. App.—Texarkana 2001, no pet.) 

(citing Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 845 (Tex. 1992); 

TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 918 (Tex. 1991)).

Davenport v. Scheble, 201 S.W.3d 188, 193-94 (Tex. App.—Dallas 2006, pet. denied); see also

O’CONNOR’S TEXAS RULES * CIVIL TRIALS 333 (2011) (“Death-penalty sanctions include 

dismissal, default judgment, excluding evidence, and jury instructions resolving fact 

issues in favor of one party.”). The trial court’s sanction is a de facto adjudication of 

Ramsay’s claims in his counterpetition—it prohibits him from supporting his claims, and 

it prohibits him from introducing any evidence in support of those claims. See In re 

Medtronic, Inc., No. 10-14-00077-CV, 2014 WL 2159555, at *3 (Tex. App.—Waco May 22, 

2014, orig. proceeding) (mem. op.) (sanction prohibiting party from introducing expert 

evidence was death-penalty sanction); Adkins Servs., 56 S.W.3d at 845 (impliedly holding 

that exclusion of evidence to support claim was death-penalty sanction).

Rule 215 requires that any sanctions imposed be “just,” and there are 

two components to measuring whether an imposition of sanctions is just. 

[Cire, 134 S.W.3d] at 839. “First, a direct relationship must exist between 

the offensive conduct and the sanction imposed, which “means that a just 

sanction must be directed against the abuse and toward remedying the 

prejudice caused the innocent party.” Id. (quoting TransAmerican Natural 

Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991)). Second, the sanctions 

must not be excessive. Id. “In other words, ‘[t]he punishment should fit the 

crime ... courts must consider the availability of less stringent sanctions and 

whether such lesser sanctions would fully promote compliance.’” Id. 

“[C]ase-determinative sanctions may only be imposed in ‘exceptional cases’

where they are ‘clearly justified’ and it is ‘fully apparent that no lesser 

sanctions would promote compliance with the rules.’” Id. at 840-41 

(quoting GTE Communications Sys. Corp. v. Tanner, 856 S.W.2d 725, 729-30

(Tex. 1993)); see also Spohn Hosp. v. Mayer, 104 S.W.3d 878, 882 (Tex. 2003) 
In re Ramsey Page 5

(requiring trial courts to “consider less stringent measures before settling 

on severe sanctions,” but reiterating that death penalty sanctions may only 

be imposed in the first instance when the facts of the case are exceptional 

and such a sanction is “clearly justified”).

Lockhart v. McCurley, No. 10-11-00073-CV, 2013 WL 1286659, at *5 (Tex. App.—Waco Mar. 

28, 2013, no pet.) (mem. op.).

Generally, a trial court must use a lesser sanction first. Chrysler, 841 S.W.2d at 849-

50; Medtronic, Inc., 2014 WL 2159555, at *3; Adkins Servs., 56 S.W.3d at 845-46; see Cire, 134 

S.W.3d at 840-41. 

In all cases, the record must reflect that the trial court considered the 

availability of appropriate lesser sanctions and must contain an explanation 

of the appropriateness of the sanction imposed. [Cire, 134 S.W.3d] at 842. 

The trial court need not test the effectiveness of each available lesser 

sanction by actually imposing the lesser sanction on the party before issuing 

the death penalty sanction; rather, the trial court must analyze the available 

sanctions and offer a reasoned explanation as to the appropriateness of the 

sanction imposed. Id. at 840.

Medtronic, Inc., 2014 WL 2159555, at *3.

We conclude that the trial court’s death-penalty sanction constitutes an abuse of 

discretion because nothing in the record shows that the trial court attempted or even 

considered lesser sanctions before entry of the death-penalty sanction. See id. We sustain 

issue one.

In his second issue, Ramsay asserts that the trial court abused its discretion by 

requiring Ramsay to bear the cost ($4,617.85) of copying the documents that he produced 

to Lezlie.

Unless otherwise ordered by the court for good cause, the expense 

of producing items will be borne by the responding party and the expense 

of inspecting, sampling, testing, photographing, and copying items 

produced will be borne by the requesting party.

TEX. R. CIV. P. 196.6.
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Ramsay informally requested on the record that Lezlie be required to pay the 

copying expense, but as we noted above, the trial court did not explicitly state or rule that 

Ramsay was required to pay the copying expense. Absent a formal motion and an explicit 

trial court ruling on who is to bear the copying expense, we will not entertain Ramsay’s 

request for mandamus relief on this issue.

4 Issue two is overruled.

We conclude that the trial court abused its discretion by imposing a death-penalty 

sanction, and we find that Ramsay does not have an adequate remedy by appeal. 

Accordingly, we conditionally grant the petition for writ of mandamus, in part, and direct 

the trial court to vacate its January 4, 2016 order entitled “Order on Second Motion to 

Compel Discovery and for Sanctions.” The writ will only issue if the trial court does not 

act in conformity with this opinion. We deny the remainder of the petition regarding the 

copying expense.

REX D. DAVIS

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

(Justice Scoggins dissents with a note.)*

Petition conditionally granted in part, denied in part

Opinion delivered and filed June 29, 2016

[OT06]

*(In determining whether to impose death penalty sanctions, the trial court is not 

limited to considering only the specific violation for which sanctions are finally imposed, 

but may consider everything that has occurred during the history of the litigation. Buck 

 

4 Furthermore, even if the trial court did order Ramsay to bear the copying expense, he makes no showing 

that mandamus relief would be proper—that he lacks an adequate remedy by appeal because the expense 

before final judgment threatens his continuation of the litigation. See In re Ford Motor Co., 988 S.W.2d 714, 

722-23 (Tex. 1998).
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v. Estate of Buck, 291 S.W.3d 46, 55 (Tex. App.—Corpus Christi 2009, no pet.); Allied Res. 

Corp. v. Mo-Vac Serv. Co., 871 S.W.2d 773, 775 (Tex. App.—Corpus Christi 1994, writ 

denied); see Schmitt v. Bordelon, 844 S.W.2d 273, 278 (Tex. App.—Fort Worth 1992, writ 

denied). In reviewing an order imposing sanctions, we must independently review the 

entire record and are not bound by the trial court's findings of fact and conclusions of 

law, if any. Buck, 291 S.W.3d at 56. 

This divorce case is over three years old, and in fact one of the children is no longer 

a child and conservatorship is not even contested as to the remaining minor child. The 

record shows that the trial court considered the history of the litigation between Lezlie 

and Ramsay. The trial court held numerous hearings to enforce its temporary orders 

related to this proceeding and after the second of these hearings, held Ramsay in 

contempt for failing to comply with the court’s temporary orders. I am unable to find 

that the trial court abused its discretion; and, therefore, I respectfully dissent.)