Opinion issued January 24, 2013
Court of Appeals
First District of Texas
JIMMY TULLOS, Appellant
JO DEAN JONES AND PROGRESSIVE COUNTY MUTUAL INSURANCE
On Appeal from the County Court at Law No. 3
Galveston County, Texas
Trial Court Case No. 62,063
Appellant, Jimmy Tullos, sued appellee Jo Dean Jones for personal injuries
arising out of a car accident. Approximately fourteen months after Tullos filed
suit, the trial court dismissed his case with prejudice. Tullos argues that the trial
court abused its discretion in dismissing the case with prejudice as a “death penalty
sanction” for discovery abuse because he lacked adequate notice, the sanctions
order was inadequate, and the evidence was insufficient to support the trial court’s
imposition of sanctions.1
We reverse and remand.
On December 23, 2009, Tullos filed a personal injury claim asserting
negligence, negligence per se, gross negligence, and statutory violations against
Jones for damages arising out of an automobile crash that occurred in December
Jones answered, and, on February 8, 2010, she served Tullos with requests
for disclosure, interrogatories, and requests for production.
On April 29, 2010, the trial court entered a docket control order in
anticipation of a bench trial set for March 14, 2011. The April 29, 2010 docket
control order provided that Tullos and Jones were to have joined and served new
Tullos’s issues as enumerated in his brief are that the trial court: (1) erred in
entering “a sua sponte death penalty sanctions order without notice of the hearing
prior to it being conducted”; (2) erred by failing to state in the order the reasons
for the sanction and the analysis required by TransAmerica Natural Gas Corp. v.
Powell; (3) abused its discretion by dismissing the case with prejudice on March 4,
2011; (4) abused its discretion by considering missed deadlines under a
“superseded” docket control order as evidence that Tullos disregarded a court
order; (5) abused its discretion by considering Tullos’s failure to comply with the
court order to contact a mediator as evidence that Tullos disregarded a court order,
because none of the parties contacted the mediator; and (6) erred in failing to
properly apply the test for sanctions set forth in TransAmerica.
parties by April 9, 2010.2 It further required that the parties complete mediation by
August 11, 2010, that Tullos designate his experts by December 14, 2010,3 and that
both parties conclude discovery by February 14, 2011. The April 29, 2010 docket
control order further specified that amendments to the pleadings must be filed “per
The trial court amended the docket control order on May 24, 2010,
following Jones’s request for a jury trial. That docket control order extended the
deadlines for attending mediation and for designating experts to January 21, 2011.
The order likewise extended the discovery deadline to February 28, 2011. This
docket control order also provided that amendments to pleadings must be filed by
March 10, 2011, and it set a trial date of March 21, 2011.
On August 16, 2010, Jones filed a motion to compel discovery responses
from Tullos, stating that, as of the date of the motion, Jones had not received any
responses from Tullos on the requests for disclosure, interrogatories, and requests
for production that she had served on February 8, 2010.
The date for joining and serving new parties had already passed at the time the
trial court signed the docket control order.
The docket control order actually provides the date December 14, 2011. However,
as per the amended docket control order, the year appears to be a typo, and both
parties and the trial court referred to the proper deadline for designating experts
under that order as December 14, 2010.
On November 17, 2010, the trial court signed a mediation order granting the
parties’ request to designate Greenway Mediation Group as the agreed mediator.
The parties filed an agreed motion for continuance on January 14, 2011,
stating that “[d]iscovery has not been sufficiently completed to allow the parties to
argue their case adequately” and that the case had not been mediated. Jones sought
to depose Tullos, but, on January 20, 2011, Tullos moved to quash the deposition
notice. Tullos argued that he was not available to appear on the date noticed by
Jones. The motion to quash also stated that Tullos had responded to Jones’s
requests for disclosure and detailed various difficulties in complying with the
remainder of Jones’s discovery requests, such as difficulties in obtaining medical
records. Tullos also stated that it was “best to wait until newly added defendant
Progressive answers” so that the deposition need not be taken twice.
On January 25, 2011, the trial court issued an order denying the motion for
continuance. The trial court ordered the parties to mediation by March 11, 2011
and appointed Nancy Huston as the mediator. The trial court’s order reiterated the
March 21, 2011 trial date and stated, “Sanctions may be imposed for failure to
comply with this Order.”
Also on January 25, 2011, Tullos filed, without leave of court, an amended
original petition naming Progressive County Mutual Insurance Company
(“Progressive”) as a defendant.
Progressive answered on January 27, 2011.
Progressive filed an agreed motion for continuance on January 31, 2011, asserting
that it had not been able to adequately prepare for trial.
On January 31, 2011, Tullos moved for “pretrial orders pursuant to Rule
166.” This motion stated that “[a] considerable portion of [Tullos’s] medical care
and treatment for injuries . . . occurred in Austin” and that Tullos moved to
Colorado “for a period of time.” The motion further stated, “Due to the logistics
involved . . . the medical discovery is not complete and [Tullos] is scheduling a
follow up appointment with his Neurosurgeon, Dr. John Stokes in Austin. Despite
diligent efforts to obtain the medical records the Court Reporting Company has
had difficulty in obtaining some medical records.” The motion stated that Tullos
believed liability would not be contested and that he intended to file a no-evidence
motion for summary judgment on that issue, and it asked the trial court to hold a
pre-trial conference to address these discovery issues, deadlines, mediation, and
On February 7, 2011, Jones filed an amended motion to compel Tullos to
respond to the interrogatories and requests for production served on February 8,
2010. The motion stated that Tullos “has failed to answer the Interrogatories or
Requests for Production, other than recently providing some photographs of [his]
vehicle, and providing signed HIPAA authorizations.” The motion stated that the
trial court “should compel [Tullos] to fully respond to [Jones’s]” interrogatories
and requests for production and prayed, “Wherefore, premises considered, [Jones]
prays that the Motion to Compel be granted, and that the Court grant such other
further relief, both general and special, at law and in equity, to which [Jones] may
be justly entitled.”
Jones also filed a no-evidence motion for summary judgment “based on
[Tullos’s] lack of evidence to support his claims of gross negligence and
diminution of value of his vehicle.”
The trial court issued an order granting Progressive’s requests for a hearing
on its motion for continuance, and it set the date of the hearing as March 4, 2011.
On February 25, 2011, Tullos filed a motion for an amended docket control
order and for leave to designate additional non-retained experts. In this motion,
Tullos’s attorney explained that discovery was not yet complete, that he had
recently added Progressive as a party because he just learned that Tullos had
parties . . . chose to wait on incurring the expense of mediation until all of the
medical records could be obtained[,] depositions of the parties taken[,] and
Progressive added to the lawsuit.” Tullos asked the trial court to grant him leave to
designate new treating physicians as non-retained experts, to enter an amended
docket control order, and to grant the pending motion for continuance.
Also on February 25, 2011, Tullos filed a supplemental petition, in which he
waived his claim of gross negligence against Jones and took “a voluntary non suit,
without prejudice, as to any and all claims of gross negligence and requests for
Tullos subsequently filed an amended motion for an amended docket control
order, informing the trial court that the parties had scheduled mediation for March
21, 2011 with Norman Roser of Greenway Mediation Group.
At the March 4, 2011 hearing, Tullos appeared through his counsel. The
trial court began by asking questions to obtain “background.” It confirmed that the
accident occurred on December 27, 2007; that Tullos filed suit December 23,
2009; and that Jones was served on January 18, 2010.
The trial court also
confirmed that the following deadlines had not been met: (1) the docket control
order’s April 9, 2010 deadline for naming new parties; (2) the February 14, 2011
deadline for completing discovery; (3) the trial court’s order to complete mediation
by August 11, 2010; and (4) the docket control order’s deadline to designate
experts by December 14, 2010.
Tullos’s attorney explained some of the difficulties the parties had faced in
completing discovery and scheduling mediation. Toward the end of the hearing,
the trial court stated that it was “beyond concerned with [Tullos’s] inability to
comply with any Court order, any mediation order, including the last mediation
order [that] notified [Tullos] that sanctions would be imposed for failure to
comply.” The trial court stated that it would “issue an order today on whether the
case will be dismissed for want of prosecution for failure to comply with Court
orders.” Tullos’s counsel stated, “I thought up until this morning that that was not
an issue.” Tullos’s counsel also stated on two occasions that he did not bring the
information he needed to address the trial court’s concerns.
That same day, the trial court signed an order dismissing the case with
prejudice “based on the pleadings on file and the testimony of counsel on this
date.” The order stated that it was issued under the trial court’s authority “to
impose sanctions for a party’s failure to comply with . . . pretrial orders and
discovery obligations.” It stated, “In light of Plaintiff’s systemic and absolute
refusals to comply with virtually all aspects of all prior Orders, and Plaintiff’s
refusal to timely comply with his discovery obligations, dismissal in this matter is
both just and reasonable. The Court finds that no lesser sanction would promote
compliance.” The order stated that it “fully disposes of all issues and parties in this
On April 4, 2011, Tullos filed a verified motion for new trial complaining
that he had no notice regarding a sanctions hearing and that he was “denied the
opportunity to respond to any of the claims . . . that [his] conduct was ‘systemic
and absolute.’” Tullos also argued that there was no evidence that he had failed to
comply with “virtually all aspects of all prior orders,” as found in the trial court’s
order, and that the trial court had abused its discretion in failing to consider lesser
sanctions. He attached exhibits showing his compliance with discovery and his
communications with other attorneys regarding scheduling of mediation and other
The trial court denied the motion for new trial, stating in its order, “Amongst
other things, Plaintiff’s Motion fails to comply with the Galveston County Local
Rules, including Local Rule 3.24. . . . The Court also FINDS that the time period
for filing a proper Motion for New Trial has expired.”
This appeal followed.
In his first issue, Tullos argues that he did not receive adequate notice of the
sanctions hearing and that, therefore, his case should not have been dismissed
either as a sanction or for want of prosecution.
Notice of Dismissal as “Death Penalty” Sanction
Jones argues that Tullos had adequate notice of the March 4, 2011 hearing.
However, Tullos does not argue that he did not receive notice of the March 4
hearing. Tullos argues that he had no notice that the subject matter of the hearing
would encompass assessment of sanctions and that, therefore, the trial court’s
dismissal of his suit as a sanction was an abuse of its discretion.
Texas Rule of Civil Procedure 215 allows a trial court to order sanctions
when a litigant or his attorney abuses the discovery process. TEX. R. CIV. P. 215.
In addition, a trial court possesses the inherent power to discipline an attorney’s
behavior through the imposition of sanctions in appropriate cases. In re Bennett,
960 S.W.2d 35, 40 (Tex. 1997); see also Clark v. Bres, 217 S.W.3d 501, 512 (Tex.
App.—Houston [14th Dist.] 2006, pet. denied) (“Even in the absence of an
applicable rule or statute, [a court has] the authority to sanction parties for bad faith
abuses if it finds that to do so will aid in the exercise of its jurisdiction, in the
administration of justice, and the preservation of its independence and integrity.”)
(quoting Roberts v. Rose, 37 S.W.3d 31, 33 (Tex. App.—San Antonio 2000, no
pet.)). Such sanctions are discretionary and are reviewed on appeal for an abuse of
discretion. Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006)
(sanctions under Rule 215); Ezeoke v. Tracy, 349 S.W.3d 679, 685 (Tex. App.—
Houston [14th Dist.] 2011, no pet.) (sanctions under court’s inherent power). A
trial court abuses its discretion when it acts without reference to guiding rules and
principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.
1985). When imposing sanctions for discovery abuses, a trial court must look to
the Texas Rules of Civil Procedure for guiding rules and principles. Id. at 242. In
reviewing an order imposing sanctions, we must independently review the entire
record, and we are not bound by the trial court’s findings of fact and conclusions of
law. Am. Flood Research, Inc., 192 S.W.3d at 583.
The Due Process Clause of the United States Constitution limits a trial
court’s power to sanction. In re Bennett, 960 S.W.2d at 40; Clark, 217 S.W.3d at
513; Greene v. Young, 174 S.W.3d 291, 298 (Tex. App.—Houston [1st Dist.]
2005, pet. denied). Likewise, the due course of law provision in Article I, Section
19 of the Texas Constitution limits the power to sanction. TEX. CONST. art. I § 19.
“For this reason, the imposition of sanctions requires . . . ‘notice reasonably
calculated, under the circumstances, to apprise interested parties of the pendency of
the action and [to] afford them the opportunity to present their objections.’”
Greene, 174 S.W.3d at 298. Rule 215 expressly requires notice and a hearing
before sanctions may be imposed on a party. See, e.g., TEX. R. CIV. P. 215.2
(allowing sanctions for failure to comply with court order or discovery request
after notice and hearing); 215.3 (“[T]he court in which the action is pending may,
after notice and a hearing, impose any appropriate sanction. . . .”). Likewise, “[t]he
traditional due process protections of notice and hearing are also required before a
trial court can impose sanctions on a party pursuant to its inherent power to
sanction.” Greene, 174 S.W.3d at 298 (citing Kutch v. Del Mar College, 831
S.W.2d 506, 511 (Tex. App.—Corpus Christi 1992, no writ)).
At the time of the March 4 hearing, no motions or requests for sanctions
were pending before the trial court. The trial court did not provide any notice to
Tullos that it intended to sanction him sua sponte under Rule 215 or under its
inherent power. Tullos was not put on notice that sanctions would be imposed
against him, nor was he put on notice regarding the conduct ultimately sanctioned
by the trial court. Thus, we conclude that Tullos was denied adequate notice of the
imposition of sanctions. See Greene, 174 S.W.3d at 299–300 & n.4 (reversing
sanctions order of trial court because court relied on grounds not included in notice
in imposing sanctions and stating, “[T]he court must provide notice to the party
that it intends to rely on its inherent authority to sanction to allow the party to
prepare a defense”); see also Clark, 217 S.W.3d at 513 (“Imposing sanctions on a
party without notice and an opportunity to be heard would violate the requirements
of due process.”); Bisby v. Dow Chem. Co., 931 S.W.2d 18, 21 (Tex. App.—
Houston [1st Dist.] 1996, no writ) (“Because Bisby was not put on notice that
sanctions would be imposed upon her for filing the three above-described
pleadings, the trial court erred in assessing sanctions.”).
Jones points out that her motion to compel contained a general prayer for
relief. However, here, as in Greene, such a general prayer is not adequate to
provide notice of the bases for sanctions awarded by the trial court. See Greene,
174 S.W.3d at 300 (“The question is not whether appellants had notice of the
particular “relief” that was awarded to [the appellee]; rather, it is a question of
whether appellants were afforded notice of the bases for the sanctions imposed
against them to enable them to mount an adequate defense.”).
We also observe that the trial court stated in its January 25, 2011 order that
sanctions might be imposed for failure to comply with that order, which denied the
parties’ motion for continuance and ordered them to complete mediation by March
11, 2011. However, the trial court dismissed the case on March 4, 2011, before the
March 11, 2011 deadline for complying with its order to mediate. Thus, this order
does not provide notice of any basis on which the trial court could have relied in
dismissing the case on March 4, 2011.
We hold that the trial court abused its discretion to the extent it dismissed
Tullos’s suit as a sanction under Rule 215 or under its inherent power to discipline
an attorney’s behavior.
Dismissal for Want of Prosecution
Progressive argues in its brief that the trial court’s dismissal was proper as a
dismissal for want of prosecution. See MacGregor v. Rich, 941 S.W.2d 74, 75
(Tex. 1997) (per curiam) (“When an ambiguous order is susceptible to two
reasonable constructions, an appellate court should adopt the construction that
correctly applies the law.”). We review a dismissal for want of prosecution for an
abuse of discretion. Id.
The trial court’s authority to dismiss for want of prosecution stems from two
sources: (1) Texas Rule of Civil Procedure 165a, and (2) the court’s inherent
power. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex.
1999). However, a party must be provided with notice and an opportunity to be
heard before a court may dismiss a case for want of prosecution under either Rule
165a or its inherent authority. Id.; see also TEX. R. CIV. P. 165a (“Notice of the
court’s intention to dismiss and the date and place of the dismissal hearing shall be
sent by the clerk to each attorney of record. . . .”). The failure to provide adequate
notice of the trial court’s intent to dismiss for want of prosecution requires
reversal. See Villarreal, 944 S.W.2d at 630.
Here, nothing in the record indicates that Tullos received notice that the trial
court intended to dismiss his case for want of prosecution. Thus, the order is not
supported on this ground. See id.
We hold that the trial court abused its discretion to the extent it dismissed
Tullos’s suit for want of prosecution.
We sustain Tullos’s first issue.
Tullos’s remaining issues are not dispositive and need not be addressed.
See TEX. R. APP. P. 47.1.
Progressive asserts an alternative ground for affirming the trial court’s dismissal of
Tullos’s claims against it. Progressive argues that it “was not properly before the
trial court because [Tullos] amended his petition adding Progressive as a
We reverse the judgment of the trial court dismissing Tullos’s case and
remand for further proceedings consistent with this opinion.
Evelyn V. Keyes
Panel consists of Justices Keyes, Massengale, and Brown.
defendant after the deadline to add new parties, without requesting leave to amend
his petition from the court.” After Tullos amended his pleadings adding
Progressive as a party, Progressive answered and filed a motion for continuance.
The motion for continuance did not raise this issue. Nor did Progressive file a
motion to strike or otherwise present this issue to the trial court. Thus, we
conclude that this argument is not preserved for consideration on appeal. See TEX.
R. APP. P. 33.1 (requiring that complaint be presented to trial court as prerequisite
for raising issue on appeal).