Reversed and Remanded, and Opinion Filed November 25, 2013.

S

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-12-00864-CV

THE SHOPS AT LEGACY (INLAND) LIMITED PARTNERSHIP, Appellant

V.

FINE AUTOGRAPHS & MEMORABILIA RETAIL STORES INC., Appellee

On Appeal from the 366th Judicial District Court

Collin County, Texas

Trial Court Cause No. 366-02102-2010

OPINION

Before Justices Moseley, Lang, and Richter1

Opinion by Justice Lang

The Shops at Legacy (Inland) Limited Partnership appeals the trial court’s order and final 

judgment, which granted Fine Autographs & Memorabilia Retails Stores, Inc.’s motion for 

sanctions and dismissed The Shops at Legacy’s cause of action with prejudice. In five issues, 

The Shops at Legacy raise two arguments: (1) there was “no evidence or legally insufficient 

evidence” to support the trial court’s conclusions that it filed multiple false pleadings, made 

material misrepresentations to the trial court, violated the rules governing organization of 

pleadings, and made incomplete discovery responses or engaged in the concealment of evidence; 

and (2) the trial court erred when it assessed “death penalty” sanctions because the dismissal of 

The Shops at Legacy’s cause of action with prejudice was an excessive sanction.

 1 The Hon. Martin Richter, Justice, Assigned
–2–

We conclude the trial court erred when it dismissed The Shops and Legacy’s cause of 

action with prejudice because the record does not show the trial court considered and analyzed 

the availability of lesser sanctions and whether such sanctions would fully promote compliance. 

The trial court’s order and final judgment are reversed and this case is remanded for further 

proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

The Shops at Legacy filed suit against Fine Autographs for breach of a shopping center 

lease agreement. On the date of trial, The Shops at Legacy requested a continuance, which the 

trial court denied. Then, The Shops at Legacy orally moved for a nonsuit without prejudice. The 

record on appeal does not contain a written order on The Shops at Legacy’s motion for nonsuit.

Fine Autographs filed a motion for sanctions, alleging discovery abuse by The Shops at 

Legacy. After a hearing, the trial court granted the motion and dismissed The Shops at Legacy’s 

cause of action with prejudice.

II. “DEATH PENALTY” SANCTIONS

In issue five, The Shops at Legacy argue the trial court erred when it assessed “death 

penalty” sanctions because the dismissal of The Shops at Legacy’s cause of action with prejudice 

was an excessive sanction. The Shops at Legacy argues there is no justification for the trial 

court’s imposition of “death penalty” sanctions. Also, The Shops at Legacy contends that Fine 

Autographs obtained a reasonable result when The Shops at Legacy nonsuited the case. Fine

Autographs responds, stating the trial court’s rendition of the order and final judgment of 

dismissal with prejudice was the only appropriate sanction. Fine Autographs argues the pattern 

of misconduct by The Shops at Legacy justified a presumption that its claims lacked merit. 

Further, Fine Autographs maintains that counsel for The Shops at Legacy failed to propose 
–3–

alternative sanctions when asked to do so by Fine Autographs. In addition, Fine Autographs 

argues The Shops at Legacy sought a nonsuit in an attempt to escape punishment.

A. Standard of Review

An appellate court reviews a trial court’s order imposing sanctions for an abuse of 

discretion. See Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Tex. Integrated Conveyor Sys., 

Inc. v. Innovative Conveyor Concepts, Inc., 300 S.W.3d 348, 384 (Tex. App.—Dallas 2009, pet. 

denied). A trial court abuses its discretion if it acted without reference to any guiding rules and 

principles to the extent the act was arbitrary or unreasonable. Am. Flood Research, Inc. v. Jones, 

192 S.W.3d 581, 583 (Tex. 2006) (per curiam); Cire v. Cummings, 134 S.W.3d 835, 838–39

(Tex. 2004); Tex. Integrated, 300 S.W.3d at 384. An appellate court reviews the entire record to 

determine whether the imposition of sanctions constitutes an abuse of discretion. Am. Flood 

Research, 192 S.W.3d at 583; Tex. Integrated, 300 S.W.3d at 384. 

B. Applicable Law

Discovery sanctions are authorized by Texas Rule of Civil Procedure 215.2. See TEX. R.

CIV. P. 215.2; Tex. Integrated, 300 S.W.3d at 384. If a trial court finds a party is abusing the 

discovery process in seeking, making, or resisting discovery, then the trial court may, after notice 

and hearing, impose any appropriate sanction authorized by rule 215.2(b)(1)–(5) and (8). TEX. R.

CIV. P. 215.3; Tex. Integrated, 300 S.W.3d at 384. Among the sanctions available under rule 

215.2 are orders “striking out pleadings or parts thereof,” “dismissing with or without prejudice 

the actions or proceedings or any part thereof,” and “rendering a judgment by default against the 

disobedient party.” TEX. R. CIV. P. 215.2(b)(5). These sanctions, that adjudicate a claim and 

preclude presentation of the merits of the case, are often referred to as “death penalty” sanctions. 

Gunn v. Fuqua, 397 S.W.3d 358, 366 (Tex. App.—Dallas 2013, pet. filed); see generally Cire, 

134 S.W.3d at 840–41; see also TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 
–4–

918 (Tex. 1991) (“When a trial court strikes a party's pleadings and dismisses its action or 

renders a default judgment against it for abuse of the discovery process, the court adjudicates the 

party's claims without regard to their merits but based instead upon the parties' conduct of 

discovery.”); Perez v. Murff, 972 S.W.2d 78, 81 (Tex. App.—Texarkana 1998, pet. denied) (any 

sanctions which are “case determinative” constitute “death penalty” sanctions).

Discovery sanctions serve three purposes: (1) to secure the parties’ compliance with the 

discovery rules; (2) to deter other litigants from violating the discovery rules; and (3) to punish 

parties who violate the discovery rules. Tex. Integrated, 300 S.W.3d at 384; Jones v. Am. Flood 

Research, Inc., 218 S.W.3d 929, 932 (Tex. App.—Dallas 2007, no pet.). Although the choice of 

sanction is left to the sound discretion of the trial judge, the sanctions imposed must be just. See

TEX. R. CIV. P. 215.2; TransAmerican, 811 S.W.2d at 916; Tex. Integrated, 300 S.W.3d at 384; 

Jones, 218 S.W.3d at 932. 

When determining whether a trial court’s imposition of sanctions was just, an appellate 

court considers the following two standards: (1) whether there is a “direct relationship” between 

the abusive conduct and the sanction imposed; and (2) whether the sanction is excessive. See 

TransAmerican, 811 S.W.2d at 917; Tex. Integrated, 300 S.W.3d at 384. “A sanction imposed 

for discovery abuse should be no more severe than necessary to satisfy its legitimate purposes. It 

follows that a court must consider the availability of less stringent sanctions and whether such 

lesser sanctions would fully promote compliance.” TransAmerican, 811 S.W.2d at 917; Tex. 

Integrated, 300 S.W.3d at 384; Jones, 218 S.W.3d at 932. Under this standard, 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. Cire, 134 S.W.3d at 840. Rather, the trial 

court must analyze the available sanctions and offer a reasoned explanation as to the 

appropriateness of the sanction imposed. Cire, 134 S.W.3d at 840. “Death penalty” sanctions 
–5–

are harsh and may be imposed as an initial sanction only in the most egregious and exceptional 

cases “when they are clearly justified and it is fully apparent that no lesser sanctions would 

promote compliance with the rules.” GTE Commc’ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 729 

(Tex. 1993). 

Although the Texas Supreme Court recommended that trial courts make findings of fact 

before imposing “death penalty” sanctions, it expressly declined to require such findings. 

TransAmerican, 811 S.W.2d at 919 n.9; see also Fletcher v. Blair, 874 S.W.2d 83, 85 (Tex. 

App.—Austin 1994, writ denied). Nevertheless, the record must include some explanation to 

justify the granting of “death penalty” sanctions. Fletcher, 874 S.W.2d at 86.

C. Application of the Law to the Facts

At the close of the hearing on Fine Autographs’ motion for sanctions, the trial court 

stated the following:

Well, gentlemen, it appears that there are some issues in this lawsuit that made 

everyone question the ethics and the responsibilities that we all owe our clients 

and to the judiciary and to the court system by the other side, not by [Fine 

Autographs], but I think that some of this looks suspicious when actually there’s 

probably some honest mistakes that were made by some people, a large company 

like The Shops at Legacy and the different people. We’ve heard that there are 

different people there that handle different things, so I can see how some of these 

things might have gotten a little haywire as far as the missing document from the 

lease, as far as the checks not being produced.

Obviously, any lawyer that takes a case wants full cooperation from their client, 

and without full cooperation, it’s hard to defend a case or prosecute a case. As 

seasoned lawyers, we all know that. I think [counsel for The Shops at Legacy] 

was trying to work with what he had and didn’t always get what he needed from 

his client. 

The Court finds that most of the discovery abuse in this case and from the 

standpoint of the missing guarantee agreement was not [counsel for The Shops at 

Legacy’s] fault. The documents that were not produced timely, those also were 

the obligation of the client to produce those after [counsel for The Shops at 

Legacy] said that he needed those documents and those weren’t produced. So I 

believe most of the wrongdoing in this case is attributable to The Shops at 

Legacy, the Plaintiff in this case. The Court is going to grant the sanctions 

against The Shops at Legacy and order that this case be dismissed with prejudice 
–6–

and order that [The Shops at Legacy] reimburse [Fine Autographs] for the 

expenses of the discovery abuse of having them get ready for trial that weekend 

when they thought they were going to trial in good faith. The Court orders that 

[Fine Autographs] be reimbursed reasonable and necessary attorney’s fees in the 

amount of $31,000, and the case is dismissed for abuse of discovery.

The trial court’s order and final judgment expressly adopted and incorporated “its 

findings and conclusions reached and announced at the conclusion of the hearing” with the 

exception that the trial court found that “the award of attorney’s fees in addition to [the] sanction 

of dismissal with prejudice would be potentially duplicative as a sanction and therefore[,] 

den[ied] [Fine Autograph’s] request for attorney’s fees.” The trial court also made, in relevant 

part, the following conclusions2 supporting its imposition of death penalty sanctions: (1) “this 

death penalty sanction is necessary because of the extreme and exceptional facts presented in this 

case, which clearly justifies this sanction”; (2) “this death penalty sanction is necessary because 

of the extreme and exceptional facts presented in this case”; (3) “it is fully apparent that no lesser 

sanctions would promote compliance with the Texas Rules of Civil Procedure and Local Rules 

of Collin County”; (4) “the [trial court] has considered other lesser sanctions (including fines, 

monetary payment, etc.) and finds [emphasis omitted] that such sanctions would be ineffective to 

deter [The Shops at Legacy’s] conduct”; (5) “failing to dismiss [The Shops at Legacy’s] claims 

with prejudice would permit gross and egregious abuse of the judicial process, and would permit 

[The Shops at Legacy] to re-file its claims and effectively benefit from its own repeated and 

intentional misconduct”; and (6) “these sanction[s] bear a direct relationship to [The Shops at 

Legacy’s] conduct, [] these sanctions are not excessive . . . and [] [The Shops at Legacy’s] 

conduct justif[ies] a presumption that [The Shops at Legacy’s] claims lack merit or that sufficient 

proof could not be presented to permit recovery.” 

 2 Although the trial court’s order and final judgment refer to these as findings of fact, we note that they do not recite facts, but state conclusions.
–7–

Although the trial court’s order and final judgment states “lesser sanctions” were 

considered, “no lesser sanctions would promote compliance,” and the facts of this case warrant 

“death penalty” sanctions, the reporter’s record of the hearing does not show that the trial court 

analyzed any available sanctions that were less stringent. See Cire, 134 S.W.3d at 840 (trial 

court must analyze available sanctions); Tex. Integrated, 300 S.W.3d at 384; see also Kugle v. 

DaimlerChrysler Corp., 88 S.W.3d 355, 368 (Tex. App.—San Antonio 2002, pet. denied) 

(although trial court’s conclusions of law recite that lesser sanctions inappropriate, record does 

not reflect that trial court considered lesser sanctions or why lesser sanctions would be 

ineffective).

Fine Autographs argues that the testimony it elicited from counsel for The Shops at 

Legacy “is perilously close to a concession of the relief granted by the trial court.” Specifically, 

Fine Autographs asked counsel for The Shops at Legacy “Do you know of any way [the trial 

court] can prevent you from getting the benefit of all the discovery abuse that you engaged in in 

this case except to dismiss your case with prejudice? If you do, please tell me what it is because 

I do not know.” Counsel for The Shops at Legacy responded “No.” Later, Fine Autographs 

asked him “Assume with me the Court thinks there has been misconduct. I’m asking you now 

this question: Can you give the Judge any alternative to dismissing this case with prejudice?” 

Counsel for The Shops at Legacy responded “Yes. I think there are other things―if he thinks 

that I committed misconduct that there are other things that he can use.” 

In support of this argument, Fine Autographs cites In re Department of Family and 

Protective Services, 273 S.W.3d 637, 646 (Tex. 2009) (orig. proceeding) and Tittizer v. Union 

Gas Corp., 171 S.W.3d 857, 862 (Tex. 2005). These cases address the “invited error doctrine,” 

which prohibits a party from complaining on appeal that the trial court took a specific action that 

the complaining party requested. In re Dep’t of Family Servs., 273 S.W.3d at 646; Tittizer, 171 
–8–

S.W.3d at 862. That doctrine is not applicable to the facts of this case. While a trial court may 

consider the lesser sanctions proposed by a party, Fine Autographs does not cite us to any 

authority, nor do we find any authority, requiring the party alleged to have committed discovery 

abuse to propose the lesser sanctions to be considered by the trial court. See generally Response 

Time, Inc. v. Sterling Commerce (N. Am.), Inc., 95 S.W.3d 656, 662 (Tex. App.—Dallas 2002, 

no pet.) (noting trial court considered lesser sanctions including those proposed by appellant).

Without considering the merits of the allegedly sanctionable actions, we conclude the 

trial court erred when it assessed “death penalty” sanctions against The Shops at Legacy because 

the record does not show the trial court considered and analyzed the availability of less stringent 

sanctions and whether such sanctions would fully promote compliance. See Tex. Integrated, 300 

S.W.3d at 385. In light of this conclusion, we need not consider The Shops at Legacy’s 

remaining issues. Issue five is decided in favor of The Shops at Legacy.

III. CONCLUSION

The trial court erred when it dismissed The Shops and Legacy’s cause of action with 

prejudice. 

The trial court’s order and final judgment are reversed and this case is remanded for 

further proceedings consistent with this opinion.

120864F.P05

/Douglas S. Lang/

DOUGLAS S. LANG

JUSTICE
–9–

Court of Appeals

S

Fifth District of Texas at Dallas

JUDGMENT

THE SHOPS AT LEGACY (INLAND) 

LIMITED PARTNERSHIP, Appellant

No. 05-12-00864-CV V.

FINE AUTOGRAPHS & MEMORABILIA 

RETAIL STORES INC., Appellee

On Appeal from the 366th Judicial District 

Court, Collin County, Texas

Trial Court Cause No. 366-02102-2010.

Opinion delivered by Justice Lang. Justices 

Moseley and Richter participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is 

REVERSED and this cause is REMANDED to the trial court for further proceedings consistent 

with this opinion.

It is ORDERED that appellant THE SHOPS AT LEGACY (INLAND) LIMITED 

PARTNERSHIP recover its costs of this appeal from appellee FINE AUTOGRAPHS & 

MEMORABILIA RETAIL STORES INC.

Judgment entered this 25th day of November, 2013.

/Douglas S. Lang/

DOUGLAS S. LANG

JUSTICE