Opinion
NO. 01-15-00528-CV
06-08-2017
ROBERT CARON AND SUJATA KIMBERLY CARON, Appellants v. STEPHEN A. SMABY AND SHELLEY L. GREENE, Appellees
On Appeal from the 151st District Court Harris County, Texas
Trial Court Case No. 2014-18651
MEMORANDUM OPINION
Appellants, Robert Caron and Sujata Kimberly Caron (collectively, the "Carons"), challenge the trial court's judgment, entered after the trial court granted a series of summary judgments, in favor of appellees, Stephen A. Smaby and Shelley L. Greene (collectively, the "Smabys"), on the Carons' claims for breach of contract and specific performance and the Smabys' counterclaims for breach of contract. The Carons further challenge the trial court's January discovery order imposing death penalty sanctions against them. In four issues, the Carons contend that the trial court erred in granting the Smabys summary judgment and imposing death penalty sanctions against them.
See TEX. R. CIV. P. 215.2(b).
We affirm.
Background
In their first amended petition, the Carons alleged that on October 9, 2013, they and the Smabys entered into "an executory contract for deed" (the "Contract for Sale") and "[a] concurrent rental agreement" (the "Lease Agreement") for real property located at 10243 Pineland Drive, Harris County, Texas (the "property"). Pursuant to the terms of the Contract for Sale, the Carons were to make a payment of $50,000 to the Smabys by January 15, 2014. Although the Carons attempted to wire the Smabys payment on that date, they, due to problems with their bank's computer system, were not able to make the required payment on time. When the Carons then sought to modify the parties' agreement to allow the deadline for the $50,000 payment to be extended "by a day or two so as to not cause [the Carons] to be liable for any breach," the Smabys refused their request, "improperly attempted to rescind the [parties'] contract," and "sought to have [the Carons] evicted from [the property] for failure to pay rent." The Carons brought claims against the Smabys for breach of contract, specific performance, and trespass to try title.
The Smabys answered, generally denying the Carons' allegations and asserting various affirmative defenses and counterclaims for breach of the Contract for Sale and breach of the Lease Agreement. In their first amended answer and counterclaim, the Smabys alleged that they and the Carons entered into the Lease Agreement on October 9, 2013. The rental term of the Lease Agreement began on October 9, 2013 and was to end on July 15, 2014. The parties executed the Contract for Sale on October 10, 2013.
The Smabys also asserted counterclaims for fraud, which the trial court disposed of in its final judgment. The parties have not challenged the trial court's disposition of the Smabys' fraud counterclaims on appeal.
Under the terms of the Contract for Sale, the Carons were to close on the sale of the property no later than January 15, 2014. However, if the Carons wished to extend the closing date until April 15, 2014, they had the option to do so, provided that they paid $50,000 to the Smabys by January 15, 2014. The Carons also had the option to extend the closing date beyond April 15, 2014 to July 15, 2014, i.e., the final closing date, if they paid the Smabys an additional $100,000 by April 15, 2014.
According to the Smabys, the Carons did not close on the sale of the property by January 15, 2014, and they did not pay the additional monies required to extend the closing date. Thus, the Smabys terminated the Contract for Sale. They also terminated the Lease Agreement because the Carons did not make any rental payments in accordance with the parties' agreement after January 2014. On March 21, 2014, after the Carons had "refused to leave the [p]roperty," the Smabys "obtain[ed] an order of eviction" and a writ of possession.
The Carons then filed the instant suit against the Smabys, "seeking injunctive relief that would restrain [the Smabys] from enforcing the [w]rit of [p]ossession order on the [p]roperty." On May 13, 2014, the trial court granted the Carons a temporary injunction, allowing them to avoid eviction and continue to live in the property. Under the terms of the trial court's temporary injunction, the Carons were required to pay into the trial court's registry, no later than May 19, 2014, the $150,000 payment "required under the Contract [for] Sale to extend the January 15, 2014 closing date to July 15, 2014." (Emphasis omitted.) The Carons were also required to pay "all arrears in both rental payments and accrued taxes on the [p]roperty ($30,900.00) by the same deadline." And they were ordered to pay the Smabys $10,300 on or before the fifth day of each month after May 19, 2014, "as an ongoing monthly rental and tax fee."
A copy of the trial court's temporary injunction order appears in the record.
The Smabys further alleged that the Carons never made any of the payments required by the trial court's temporary injunction, and the trial court, on June 16, 2014, dissolved the temporary injunction and ordered the Carons to immediately vacate the property. The Carons then "ignored the [trial court's] [v]acate [o]rder," and the Smabys "set a show cause hearing [on July 28, 2014] to determine whether the [Carons] should be held in contempt of court." After the hearing, the trial court concluded that the Carons had "chose[n] to deliberately and inexcusably to violate the [v]acate [o]rder by remaining in possession of the [p]roperty." And the trial court again ordered the Carons to vacate the property, which they did on August 1, 2014.
A copy of the trial court's order appears in the record.
Subsequently, the Smabys moved for partial summary judgment on the Carons' claim for breach of the Contract for Sale, arguing that they were entitled to judgment as a matter of law because they had "pleaded the affirmative defense of [b]reach of [c]ontract" and the Contract for Sale was a valid, enforceable contract; the Smabys were parties to the Contract for Sale; the Smabys performed on the Contract for Sale by having the property available for sale pursuant to the terms of the parties' agreement; the Carons breached the Contract for Sale by not closing on the sale of the property on or before January 15, 2014, or alternatively, by not making the additional payments required to extend the closing date; and the Smabys suffered damages as a result of the Carons' breach. The Smabys also moved for partial summary judgment on the Carons' claim for specific performance, arguing that they were entitled to judgment as a matter of law because the Carons had not performed on the Contract of Sale, which they were required to do in order to seek specific performance. On November 4, 2014, the trial court granted the Smabys summary judgment, ordering that the Carons "take nothing on their claims of specific performance and breach of contract" against the Smabys. (Emphasis omitted.)
The Smabys also moved for partial summary judgment on their own counterclaims for breach of the Contract for Sale and breach of the Lease Agreement, arguing that they were entitled to judgment as a matter of law because the Contract for Sale and the Lease Agreement were valid, enforceable contracts; the Smabys were parties to the Contract for Sale and the Lease Agreement and performed on the Contract for Sale and Lease Agreement by having the property available for lease and sale pursuant to the agreements; the Carons breached the Contract for Sale and the Lease Agreement by not "making the required monetary payments"; and the Smabys suffered damages in the amount of $309,115.68. On December 15, 2014, the trial court granted the Smabys summary judgment on their breach-of-contract counterclaims and ordered the Carons to pay $176,715.68 on the Smabys' counterclaim for breach of the Contract for Sale and $132,400 on the Smabys' counterclaim for breach of the Lease Agreement.
During the course of the parties' litigation, the Smabys also moved to compel discovery after the Carons had not responded to their requests for disclosure, interrogatories, and requests for production of documents. On September 22, 2014, the trial court ordered (the "September discovery order") the Carons, by October 6, 2014, to "fully and completely produce . . . all responsive documents to [the Smabys'] Production Request[s]," "fully and completely respond to [the Smabys'] Interrogatories," and "fully and completely respond to [the Smabys'] Disclosure Requests." The trial court also imposed a $500 sanction against the Carons, which they were required to pay to the Smabys by October 6, 2014.
After the Carons did not comply with the trial court's September discovery order, the Smabys again moved to compel discovery and for sanctions. On October 28, 2014, the trial court ordered (the "October discovery order") the Carons, by November 10, 2014, to comply with its September discovery order and pay an additional $1,000 sanction to the Smabys. In doing so, the trial court found that the Carons had "repeatedly violated [the trial] [c]ourt['s] orders, the latest being th[e] [trial] [c]ourt's Discovery Order of September 22, 2014," previously violated the terms of the trial court's temporary injunction, ignored the trial court's order to vacate the property, and "engaged in a pattern of abuse not only in th[e] [trial] [c]ourt but [also] in the 129th District Court of Harris County, Texas[,] wherein that court applied death penalty sanctions [because of the Carons'] repeated failure to abide by the court's discovery orders." (Emphasis omitted.)
After the Carons failed to comply with the trial court's October discovery order, the Smabys moved to strike and for sanctions, requesting that the trial court "strik[e] [the Carons'] claims against [them], not allow[] [the Carons] to assert [any] defenses to [the Smabys'] claims . . . , and assess[] reasonable and necessary attorney['s] fees." On January 12, 2015, the trial court ordered (the "January discovery order") the Carons' pleadings to be struck and their claims against the Smabys to be dismissed with prejudice. The trial court's order further "precluded" the Carons "from alleging, supporting or opposing any designated claims or defenses" and "prohibited" them "from introducing any evidence on such designated matters." And the trial court ordered the Carons to pay the attorney's fees incurred by the Smabys. In doing so, the trial court found that the Carons had "repeatedly violated [the trial] [c]ourt['s] orders, the latest being th[e] [trial] [c]ourt's Discovery Order of October 28, 2014," and their deliberate decision to ignore the October discovery order, as well as the trial court's previous orders, indicated that "no lesser sanctions would promote compliance." (Emphasis omitted.) Further, the trial court found that the Carons "should not be allowed to benefit from their deliberate misconduct," their "pattern of abuse . . . justif[ied] striking [their] pleadings and entering an order refusing to allow [them] to assert any claims against [the Smabys] or oppose [the Smabys'] claims," and the "continued pattern of abuse exemplified by [the Carons'] blatant disregard of the discovery process and [the trial] [c]ourt['s] orders . . . justifie[d] the presumption that [their] claims ha[d] absolutely no merit." Finally, the trial court found that at the time that it issued the January discovery order, the Carons were "pro se [p]laintiffs" who "ha[d] not complied with the [trial] [c]ourt's discovery orders" and "continued to fail to assist their next potential attorney . . . in answering discovery."
Following the trial court's January discovery order, the Smabys moved for a final summary judgment, asserting that the only issue remaining for the trial court to decide was the amount of reasonable and necessary attorney's fees incurred by them. On March 10, 2015, the trial court entered its final judgment, ordering that the Smabys recover on their breach-of-contract counterclaims a total $309,115.68 in actual damages and $68,400 in attorney's fees, in addition to the $1,500 in sanctions that the trial court had previously ordered the Carons to pay. The trial court also ordered that the Carons take nothing on their claims against the Smabys and all of the Carons' claims against the Smabys to be dismissed with prejudice.
Breach-of-Contract Counterclaims
In their second issue, the Carons argue that the trial court erred in granting the Smabys summary judgment on their counterclaims for breach of the Contract for Sale and breach of the Lease Agreement because the Smabys did not "prove as a matter of law that the Carons were in breach of the Contract for Sale" or the Lease Agreement. See TEX. R. CIV. P. 166a(c).
We review a trial court's granting of a summary judgment de novo. Ferguson v. Bldg. Materials Corp. of Am., 295 S.W.3d 642, 644 (Tex. 2009). To prevail on a summary-judgment motion, a movant has the burden of proving that it is entitled to summary judgment as a matter of law and there is no genuine issue of material fact. TEX. R. CIV. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). When a party moves for summary judgment on its own claim, it must establish its right to summary judgment by conclusively proving all the elements of its cause of action as a matter of law. Rhône-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222 (Tex. 1999); Anglo-Dutch Petroleum Int'l, Inc. v. Haskell, 193 S.W.3d 87, 95 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). Once the movant produces sufficient evidence to establish its right to summary judgment, the burden shifts to the non-movant to come forward with competent controverting evidence that raises a fact issue. See Van v. Peña, 990 S.W.2d 751, 753 (Tex. 1999). A genuine issue of fact arises if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary-judgment evidence. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007). We indulge every reasonable inference and resolve any doubts in the non-movant's favor. See Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). When a trial court's judgment does not specify the grounds upon which the trial court relied in granting it, we must affirm "if any of the summary judgment grounds are meritorious." FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000); Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).
Breach of Contract for Sale
In a portion of their second issue, the Carons argue that the trial court erred in granting the Smabys summary judgment on their counterclaim for breach of the Contract for Sale because "[t]he Smabys did not prove that they were ready, willing and able to close the transaction and convey marketable title to the Carons" and "the Smabys['] proof that the Carons failed to close [on the sale of the property] on a particular date did not prove that the Carons were in breach of [the] contract."
The elements of a valid contract are: (1) an offer; (2) an acceptance in strict compliance with the terms of the offer; (3) a meeting of the minds; (4) each party's consent to the terms; and (5) execution and delivery of the contract with the intent that it be mutual and binding. Williams v. Unifund CCR Partners Assignee of Citibank, 264 S.W.3d 231, 236 (Tex. App.—Houston [1st Dist.] 2008, no pet.). To be enforceable, a contract must be sufficiently certain to enable a court to determine the rights and responsibilities of the parties. See T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992). To be entitled to summary judgment on their counterclaim for breach of the Contract for Sale, the Smabys were required to prove, as a matter of law, the following essential elements: (1) the existence of a valid contract; (2) performance or tendered performance by them; (3) breach of the Contract for Sale by the Carons; and (4) damages sustained as a result of the Carons' breach. See B & W Supply, Inc. v. Beckman, 305 S.W.3d 10, 16 (Tex. App.—Houston [1st Dist.] 2009, pet. denied); Winchek v. Am. Ex. Travel Related Servs. Co., 232 S.W.3d 197, 202 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
In their summary-judgment motion, the Smabys argued that they were entitled to summary judgment as a matter of law on their counterclaim for breach of the Contract for Sale because the Contract for Sale was a valid, enforceable contract; the Smabys performed on the Contract for Sale by having the property available for sale pursuant to the parties' agreement; the Carons breached the Contract for Sale by not paying the accrued property taxes and by not closing on the sale of the property by January 15, 2014, or alternatively by not timely paying the additional monies required to extend the closing date; and the Smabys suffered damages in the amount of $176,715.68 as a result of the Carons' breaches.
The Smabys attached to their motion the affidavit of Greene, who testified that on October 10, 2013, the Carons and the Smabys entered into the Contract for Sale. Section 11 of the Contract for Sale "contemplated an initial closing date of January 15, 2014" for the sale of the property. (Emphasis omitted.) However, the Carons had "the option to extend the closing date to April 15, 2014" if they paid the Smabys $50,000 by January 15, 2014. (Emphasis omitted.) The Carons also had the option to extend the closing date beyond April 15, 2014 to July 15, 2014, i.e., the "final date for [c]losing on the [p]roperty," if they paid the Smabys an additional $100,000.
Greene further testified that the Smabys "made the [p]roperty available to [the Carons] pursuant to the . . . Contract for Sale and were ready, willing and able to close on the sale of the [p]roperty to [the Carons] pursuant to the Contract [for] Sale on the First Closing Date of January 15, 2014." (Emphasis omitted.) However, the Carons "did not close on [the sale of the property on that date] nor did they pay [the Smabys] the additional $50,000.00 . . . required under [s]ection 11 of the Contract for Sale to extend the closing period beyond January 15, 2014." (Emphasis omitted.) Further, the Carons "failed to close on the [p]roperty" by July 15, 2014, the final closing date, although they remained in possession of the property until August 1, 2014.
Greene also testified that the Carons "never paid" the Smabys the $26,715.68 in accrued property taxes that they were obligated to pay under section 11 of the Contract for Sale. Further, because the Carons did not "clos[e] on the [p]roperty by January 15, 2014" and did not "pay[] [the Smabys] the sums due under [s]ection 11 [of] the Contract [for] Sale[,] including [the] accrued taxes and [additional] money required . . . to extend the closing beyond January 15, 2014," the Smabys incurred damages in the amount of $176,715.68. (Emphasis omitted.)
The Smabys also attached to their summary-judgment motion the Contract for Sale, which provides that the Carons will "pay all real estate taxes commencing January 1, 2014"; "[i]f closing [on the sale of the property] has not occurred prior to January 15, 2014, [the Carons] shall make a . . . non-refundable payment in the amount of $50,000 on January 15, 2014"; and "[i]f closing [on the sale of the property] has not occurred prior to April 15, 2014[,] [the Carons] shall make a . . . non-refundable payment of $100,000 [on] April 15, 2014."
Finally, the Smabys attached to their summary-judgment motion the Carons' response to the Smabys' requests for admissions, which state:
7. Admit that you did not pay the [Smabys] $50,000.00 on January 15, 2014.
RESPONSE: ADMITTED
8. Admit that you did not pay the [Smabys] $100,000.00 on or before April 15, 2014[.]
RESPONSE: ADMITTED
9. Admit that you did not pay any of the real estate taxes on the [p]roperty.
RESPONSE: ADMITTED
The Carons did not file a response to the Smabys' summary-judgment motion or produce any evidence in response to the motion. On appeal, they argue that "[t]he Smabys did not prove that they were ready, willing and able to close the transaction and convey marketable title to the Carons" because Greene's testimony in her affidavit that the Smabys "made the [p]roperty available to [the Carons] pursuant to the . . . Contract [for] Sale and were ready, willing and able to close on the sale of the [p]roperty to [the Carons] pursuant to the Contract [for] Sale on the First Closing Date of January 15, 2014" does not constitute competent summary-judgment evidence. Specifically, the Carons assert that Greene's affidavit is conclusory and "does not include any of the underlying facts from which such a conclusion could be inferred."
The admission or exclusion of evidence rests in the sound discretion of the trial court. Interstate Northborough P'ship v. State, 66 S.W.3d 213, 220 (Tex. 2001). We apply an abuse-of-discretion standard when reviewing a trial court's decision to admit or exclude summary-judgment evidence. Rockwall Commons Assocs., Ltd. v. MRC Mortg. Grantor Trust I, 331 S.W.3d 500, 506 (Tex. App.—El Paso 2010, no pet.). Summary judgment may be based on uncontroverted testimonial evidence of an interested witness "if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted." TEX. R. CIV. P. 166a(c); see Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex. 1997). When an affidavit meets these criteria and the opposing party fails to controvert the affidavit through deposition testimony, interrogatories, or other discovery, the affidavit constitutes competent summary-judgment evidence. See Trico Techs., 949 S.W.2d at 310.
However, an affidavit that is conclusory does not constitute competent summary-judgment proof. See TEX. R. CIV. P. 166a(f); Hall v. Bean, 416 S.W.3d 490, 493-94 (Tex. App.—Houston [14th Dist.] 2013, no pet.); Querner Truck Lines, Inc. v. Alta Verde Indus., Inc., 747 S.W.2d 464, 468 (Tex. App.—San Antonio 1988, no writ). A conclusory statement is one that does not provide the underlying facts to support the conclusion. Rockwall Commons, 331 S.W.3d at 512; Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex. App.—Houston [1st Dist.] 1997, no writ). Conclusory statements are not susceptible to being "readily controverted," a condition required before the affidavit of an interested witness may support summary judgment. Rockwall Commons, 331 S.W.3d at 512; see also TEX. R. CIV. P. 166a(c); Trico Techs., 949 S.W.2d at 310 ("'Could have been readily controverted' does not mean that the summary judgment evidence could have been easily and conveniently rebutted, but rather indicates that the testimony could have been effectively countered by opposing evidence.").
Here, Greene's affidavit testimony sets forth specific facts explaining the terms of the Contract for Sale, i.e., a contract to which she is a party; the provisions of the Contract for Sale that were breached; and how the Carons' breaches damaged the Smabys in the amount of $176,715.68. Further, Greene explained how the Smabys complied with the provisions of the Contract for Sale and why the Carons were thus required to close on the sale of the property on January 15, 2014, or alternatively, were required to pay additional monies to extend the closing date beyond January 15, 2014. Greene attached to her affidavit the Contract for Sale and cited it as support for her testimony that the Smabys had complied with the terms of the parties' agreement; had "made the [p]roperty available to [the Carons]"; and were "ready, willing and able to close on the sale of the [p]roperty . . . pursuant to the Contract [for] Sale on . . . January 15, 2014." (Emphasis omitted.) Greene's testimony "could have been effectively countered by opposing evidence," and it is not conclusory. See Trico Techs., 949 S.W.2d at 310; see also TEX. R. CIV. P. 166a(c). Instead, Greene's affidavit testimony constitutes competent summary-judgment evidence.
The Carons next argue that "the Smabys['] proof that the Carons failed to close [on the sale of the property] on a particular date did not prove that the Carons were in breach of [the] contract" because "time is ordinarily not of the essence in a real estate sales contract." However, the Smabys, in their summary-judgment motion, not only argued that the Carons had breached the Contract for Sale by not closing on the property by January 15, 2014, but also that they had breached their agreement by not timely paying the additional monies required to extend the closing date beyond January 15, 2014 and by not paying the accrued property taxes as required. Moreover, the Carons admitted in their response to the Smabys' requests for admissions, attached to the Smabys' motion as summary-judgment evidence, that they did not pay the Smabys $50,000 on January 15, 2014, $100,000 on April 15, 2014, or the accrued property taxes. See Henry v. Masson, 333 S.W.3d 825, 835 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (party breaches contract by failing to perform act it has expressly or impliedly promised to perform); see also Examination Mgmt. Servs., Inc. v. Kersh Risk Mgmt., Inc., 367 S.W.3d 835, 844 (Tex. App.—Dallas 2012, no pet.) (same). In other words, the Smabys argued that the Carons breached the Contract for Sale in ways other than by not closing on the sale of the property on January 15, 2014.
In sum, summary judgment is appropriate on the Smabys' counterclaim for breach of the Contract for Sale, if they established, as a matter of law: (1) the existence of a valid contract; (2) performance or tendered performance by them; (3) breach of the Contract for Sale by the Carons; and (4) damages sustained by the Smabys as a result of the Carons' breach. See B & W Supply, Inc., 305 S.W.3d 16; Winchek, 232 S.W.3d at 202. The Carons did not file a response to the Smabys' summary-judgment motion or produce any evidence raising an issue of material fact on the Smabys' counterclaim for breach of the Contract for Sale. See M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000); Van, 990 S.W.2d at 753; see also Gatesco Q.M. Ltd. v. City of Hous., 503 S.W.3d 607, 612-13 (Tex. App.—Houston [14th Dist.] 2016, no pet.) ("In a [matter-of-law] motion for summary judgment, if the movant's motion and summary-judgment evidence facially establish its right to judgment as a matter of law, the burden shifts to the nonmovant to raise a genuine issue of material fact sufficient to defeat summary judgment."). And the uncontroverted evidence attached to the Smabys' summary-judgment motion conclusively established their right to summary judgment on their counterclaim as a matter of law. See Rhône-Poulenc, Inc., 997 S.W.2d at 222; Anglo-Dutch Petroleum, 193 S.W.3d at 95; see also Hinojosa Auto Body & Paint, Inc. v. Finishmaster, Inc., No. 03-08-00361-CV, 2008 WL 5210871, at *7 (Tex. App.—Austin Dec. 12, 2008, no pet.) (mem. op.) (summary-judgment evidence uncontroverted when non-movant fails to respond).
Accordingly, we hold that the trial court did not err in granting the Smabys summary judgment on their counterclaim for breach of the Contract for Sale. See Wakefield v. Wells Fargo Bank, N.A., No. 14-12-00686-CV, 2013 WL 6047031, at *4 (Tex. App.—Houston [14th Dist.] Nov. 14, 2013, no pet.) (mem. op.) ("Because [non-movant] did not produce any evidence in response to [movant's] motion, she did not raise a material fact issue. Therefore, if [movant] met its initial burden, the trial court properly granted summary judgment." (internal citations omitted)).
We overrule this portion of the Carons' second issue.
Breach of Lease Agreement
In a portion of their second issue, the Carons argue that the trial court erred in granting the Smabys summary judgment on their counterclaim for breach of the Lease Agreement because the Smabys did not prove that "they were entitled to terminate the entire legal relationship with the Carons."
To be entitled to summary judgment on their counterclaim for breach of the Lease Agreement, the Smabys were required to prove, as a matter of law, the following essential elements: (1) the existence of a valid contract; (2) performance or tendered performance by them; (3) breach of the Lease Agreement by the Carons; and (4) damages sustained as a result of the Carons' breach. See B & W Supply, Inc., 305 S.W.3d at 16; Winchek, 232 S.W.3d at 202.
In their summary-judgment motion, the Smabys argued that they were entitled to judgment as a matter of law on their counterclaim for breach of the Lease Agreement because the Lease Agreement was a valid, enforceable contract; the Smabys performed on the Lease Agreement by making the property available to the Carons to lease pursuant to the parties' agreement; the Carons breached the Lease Agreement by not "making the required monetary payments," including not "pay[ing] up to $15,000 in window repairs as required under [s]ection 26 of the Lease [Agreement]" and not paying rent, and by becoming "holdover tenants for a period of six months"; and the Smabys suffered damages in the amount of $132,400 as a result of the Carons' breaches.
The Smabys attached to their motion the affidavit of Greene, who testified that on October 9, 2013, the Carons and the Smabys entered into the Lease Agreement. The Smabys made the property available to the Carons to lease pursuant to the parties' agreement. Greene noted that under section 26 of the Lease Agreement, the Carons were to pay, beginning on January 1, 2014, $6,300 in monthly rent until the Lease Agreement expired. The Carons were also obligated to pay, pursuant to section 26 of the Lease Agreement, "up to $15,000.00 in window repairs." And section 22 of the Lease Agreement provides that if the Carons "fail[ed] to vacate the [p]roperty at the time the lease ends, [they] will pay [the Smabys] rent for the holdover period." (Internal quotations and emphasis omitted.) Greene further noted that "[r]ent for any holdover period [is] three (3) times the monthly rent calculated on a daily basis" and is "immediately due and payable daily without notice or demand." (Internal quotations and emphasis omitted.)
Greene further testified that the Carons did not "pay[] [the Smabys] any rent due under the Lease [Agreement]" and the Lease Agreement terminated when the Carons did not make their February 2014 rent payment. However, despite the termination of the parties' agreement, the Carons remained in possession of the property until August 1, 2014. Because the Carons "held the [p]roperty for [s]ix (6) months (February 1, 2014 through August 1, 2014)," "[t]he rent owed by [the Carons] . . . for that period under [s]ection 22 of the Lease [Agreement] is calculated as follows: $6,300.00 (monthly rent) x 3 (holdover multiplier)=($18,900.00) x 6 (holdover period)=$113,400.00." Greene also explained that the Carons did not make the window repairs required by section 26 of the Lease Agreement. And the Smabys were damaged in the amount of $132,400 as a result of the Carons' breaches of the Lease Agreement.
The Smabys also attached to their summary-judgment motion the Lease Agreement, which provides that the Carons would make monthly rent payments in the amount of $6,300 beginning January 1, 2014. It further states, under section 22, that if the Carons
fail[] to vacate the [p]roperty at the time th[e] lease ends, [the Carons] will pay [the Smabys] rent for the holdover period . . . . Rent for any holdover period will be three (3) times the monthly rent, calculated on a daily basis, and will be immediately due and payable daily without notice or demand.
And section 26 of the Lease Agreement provides that the Carons "agree to repair windows up to a maximum of $15,000.00." If the Carons "fail[] to timely pay all amounts due under th[e] [L]ease [Agreement] or otherwise fail[] to comply with th[e] [L]ease [Agreement], [they] will be in default" and the Smabys may terminate the Lease Agreement.
As we previously noted, the Carons did not file a response to the Smabys' summary-judgment motion and did not produce any evidence raising an issue of material fact on the Smabys' counterclaim for breach of the Lease Agreement. See Willrich, 28 S.W.3d at 23 ("In a [matter-of-law] motion for summary judgment, if the movant's motion and summary judgment evidence facially establish its right to judgment as a matter of law, the burden shifts to the nonmovant to raise a genuine issue of material fact sufficient to defeat summary judgment."); Van, 990 S.W.2d at 753; see also Gatesco Q.M. Ltd., 503 S.W.3d at 612-13 ("In a [matter-of-law] motion for summary judgment, if the movant's motion and summary-judgment evidence facially establish its right to judgment as a matter of law, the burden shifts to the nonmovant to raise a genuine issue of material fact sufficient to defeat summary judgment."). And the uncontroverted evidence attached to the Smabys' summary-judgment motion conclusively established their right to summary judgment on their counterclaim as a matter of law. See Rhône-Poulenc, Inc., 997 S.W.2d at 222; Anglo-Dutch Petroleum, 193 S.W.3d at 95; see also Hinojosa Auto Body, 2008 WL 5210871, at *7 (summary-judgment evidence uncontroverted when non-movant failed to respond).
Accordingly, we hold that the trial court did not err in granting the Smabys summary judgment on their counterclaim for breach of the Lease Agreement. See Wakefield, 2013 WL 6047031, at *4 ("Because [non-movant] did not produce any evidence in response to [movant's] motion, she did not raise a material fact issue. Therefore, if [movant] met its initial burden, the trial court properly granted summary judgment." (internal citations omitted)).
We overrule this portion of the Carons' second issue.
Sanctions
In their third issue, the Carons argue that the trial court erred in assessing death penalty sanctions against them because the sanctions imposed by the trial court did not "bear a direct relationship to the offensive conduct" and were excessive. See TEX. R. CIV. P. 215.2(b).
A death penalty sanction is any sanction that adjudicates a claim and precludes the presentation of the merits of the case. Braden v. Downey, 811 S.W.2d 922, 929 (Tex. 1991); Williams v. Akzo Novel Chems., Inc., 999 S.W.2d 836, 843 (Tex. App.—Tyler 1999, no pet.). We review a trial court's decision to impose sanctions for an abuse of discretion. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner "without reference to guiding rules and principles." See Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999); see also Cire, 134 S.W.3d at 838-39. When reviewing matters committed to the trial court's discretion, we may not substitute our own judgment for that of the trial court. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). A trial court does not abuse its discretion merely because it decides a discretionary matter differently than an appellate court would in a similar circumstance. Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 858 (Tex. App.—Houston [1st Dist.] 2006, no pet.). We review the entire record to determine whether the imposition of sanctions constitutes an abuse of discretion. Tex. Integrated Conveyor Sys., Inc. v. Innovative Conveyor Concepts, Inc., 300 S.W.3d 348, 384 (Tex. App.—Dallas 2009, pet. denied).
Sanctions are to be used "to assure compliance with discovery and deter those who might be tempted to abuse discovery in the absence of a deterrent." Cire, 134 S.W.3d at 839; see also Tex. Integrated Conveyor Sys., 300 S.W.3d at 384 ("Discovery sanctions serve three purposes: (1) to secure the parties' compliance with the discovery rules; (2) to deter other litigants from violating discovery rules; and (3) to punish parties who violate the discovery rules."). If a party does not comply with proper discovery requests or obey an order to provide or permit discovery, a trial court may, after notice and a hearing, make such orders "in regard to the failure as are just," including: (1) an order disallowing any further discovery of any kind; (2) an order charging all or a portion of the expenses of discovery against the disobedient party; (3) an order that the matters regarding which the order was made or any other designated facts shall be taken to be established; (4) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting designated evidence from being introduced into evidence; (5) an order striking out pleadings or parts thereof, staying the action until the order is obeyed, dismissing the action with or without prejudice, or rendering judgment by default; (6) a contempt order; and (7) an order requiring the disobedient party to pay reasonable expenses, including attorney's fees, caused by the failure. TEX. R. CIV. P. 215.2(b); Cire, 134 S.W.3d at 839.
In determining whether an imposed sanction is "just," courts consider two components. TransAm. Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991); see also Cire, 134 S.W.3d at 839. First, a direct relationship must exist between the offensive conduct and the sanction imposed. TransAm., 811 S.W.2d at 917. "This means that a just sanction must be directed against the abuse and toward remedying the prejudice caused the innocent party. It also means that the sanction should be visited upon the offender." Id. Second, "just" sanctions must not be excessive. Id. They should be only as severe as is necessary to satisfy legitimate purposes. Id. Thus, "[t]he punishment should fit the crime" and "courts must consider the availability of less stringent sanctions and whether such lesser sanctions would fully promote compliance." Id.
Further, as the Texas Supreme Court has explained, the imposition of very severe sanctions is not only limited by these standards, but also by constitutional due process:
Discovery sanctions cannot be used to adjudicate the merits of a party's claims or defenses unless a party's hindrance of the discovery process justifies a presumption that its claims or defenses lack merit. However, if a party refuses to produce material evidence, despite the imposition of lesser sanctions, the court may presume that an asserted claim or defense lacks merit and dispose of it. Although punishment and deterrence are legitimate purposes for sanctions, they do not justify trial by sanctions. Sanctions which are so severe as to preclude presentation of the merits of the case should not be assessed absent a party's flagrant bad faith or counsel's callous disregard for the responsibilities of discovery under the rules.Id. at 918 (citations omitted).
The Carons first argue that the death penalty sanctions imposed by the trial court did not "bear a direct relationship to the offensive conduct" because the trial court did not determine "whether the discovery abuse was attributable to [the Carons'] counsel only, to the [Carons] only, or to both" and there is no "factual testimony on the responsibility of" the Carons' attorney regarding "the failure to respond to the Smabys' discovery requests."
On September 22, 2014, the trial court ordered the Carons, by October 6, 2014, to "fully and completely produce" all documents responsive to the Smabys' requests for production, "fully and completely respond" to the Smabys' interrogatories, and "fully and completely respond" to the Smabys' requests for disclosure. The trial court also ordered the Carons to pay a $500 sanction to the Smabys by October 6, 2014.
After the Carons failed to comply with the trial court's September discovery order, the trial court, on October 28, 2014, ordered the Carons to "fully and completely compl[y]" with the September discovery order by responding to the Smabys' discovery requests and paying the previously ordered $500 sanction by November 10, 2014. The trial court also imposed against the Carons an additional $1,000 sanction due to be paid to the Smabys by November 10, 2014.
In its order, the trial court found that the Carons had repeatedly violated the trial court's orders, the latest being the trial court's September discovery order requiring them to "fully and completely respond to [the Smabys'] Disclosure Requests, Requests for Production of Documents[,] and Interrogatories no later than 5:00 P.M. [on] October 6, 2014 and pay monetary sanctions of $500.00, which [the Carons] . . . ignored and . . . continue[d] to disregard." (Emphasis omitted.) The trial court also found that the Carons had previously "t[aken] advantage" of the trial court's temporary injunction by "fail[ing] to make any of the . . . payments as required in the injunction order." And the trial court found that when it, on June 16, 2014, vacated the temporary injunction and ordered the Carons to "immediately vacate the [p]roperty," they then deliberately "ignored" the trial court's order to vacate. (Emphasis omitted.) Further, the trial court found that it "signed a Show Cause order-ordering [the Carons] to appear on July 28, 2014 and show why they should not be punished for contempt." (Emphasis omitted.) And "[d]espite being served with the . . . Show Cause order and knowing the ramifications of a contempt finding, [the Carons] chose to deliberately continue to live on the [p]roperty requiring [the Smabys] to expend considerable time and expense to have a contempt hearing in which the [trial] [c]ourt found that the [Carons] had violated the [trial] [c]ourt's Vacate Order." Finally, the trial court found that the Carons had "engaged in a pattern of abuse not only" in the proceedings before the trial court but also "in the 129th District Court of Harris County, Texas wherein that [trial] court applied death penalty sanctions caused by [the Carons'] repeated failure to abide by the court's discovery orders."
After the Carons failed to comply with the trial court's October discovery order, the trial court, on January 12, 2015, ordered their pleadings stricken, their claims dismissed with prejudice, and that they be "precluded from alleging supporting or opposing any designated claims or defenses," and "prohibited from introducing any evidence on such designated matters." In doing so, the trial court made the following findings:
2. It is the finding of this Court that [the Carons] . . . have repeatedly violated Court orders, the latest being this Court's Discovery Order of October 28, 2014 in which the Court also now incorporates herein the findings set out in that Order.(Emphasis omitted.) The trial court further found that the Carons, who were acting as "pro se [p]laintiffs" at the time, "h[ad] not complied with the [trial] [c]ourt's discovery orders" and "continued to fail to assist their next potential attorney . . . in answering discovery."
3. The Discovery Order of October 28, 2014 required [the Carons] to fully and completely respond to Disclosure Requests, Requests for Production of Documents and Interrogatories and pay monetary sanctions of $1[,]500 to [the Smabys'] counsel no later than November 10, 2014 before 5:00 P.M. This order, like previous orders of this Court, was once again deliberately ignored by [the Carons] and conclusively shows this Court that no lesser sanctions would promote compliance of the [Carons] with the [R]ules of Civil Procedure and Court orders.
5. [The Carons] should not be allowed to benefit from their deliberate misconduct. Instead, the Court having found that [the Carons] have engaged in a pattern of abuse, which [the Carons] continue to refuse to purge themselves of, does now justify striking [the Carons'] pleadings and entering an order refusing to allow [the Carons] to assert any claims against [the Smabys] or oppose [the Smabys'] claims against [the Carons], as authorized by Rule 215.2(b) of Tex. R. Civ. P.
6. Furthermore[,] it is this Court's finding that the continued pattern of abuse exemplified by [the Carons] blatant disregard of the discovery process and Court orders now also justifies the presumption that [the Carons'] claims have absolutely no merit. . . . .
A trial court, when assessing sanctions, should "at least attempt to determine whether the offensive conduct is attributable to counsel only, or to the party only, or to both." TransAm., 811 S.W.2d at 917; see also Spohn Hosp. v. Mayer, 104 S.W.3d 878, 882-83 (Tex. 2003). The trial court, in the instant case, did precisely that.
The record indicates that the Carons were represented by several attorneys throughout the course of the parties' litigation, but the trial court repeatedly determined that it was the Carons who had "repeatedly violated [the trial] [c]ourt['s] orders," including the trial court's September and October discovery orders, temporary injunction, and order to vacate. It was the Carons' responsibility alone to pay the $1,500 in sanctions assessed against them, and they failed to do so. And at the time that the trial court signed its January discovery order, wherein it assessed death penalty sanctions against the Carons, they were acting pro se and, thus, they alone, not their attorneys, were continuing to disobey the trial court's orders. Because the trial court imposed sanctions against the Carons, who it had determined were the source of the offensive conduct, we conclude that there is a direct relationship between the offensive conduct and sanctions imposed by the trial court. See TransAm., 811 S.W.2d at 917; see also Dao v. Md. Cas. Co., No. 09-13-00353-CV, 2015 WL 2255263, at *7-8 (Tex. App.—Beaumont May 14, 2015, no pet.) (mem. op.) (trial court's order belied party's argument trial court failed to determine whether offensive conduct was attributable to counsel, to party, or to both).
The Carons next argue that the sanctions imposed by the trial court were excessive because "no lesser sanction ha[d] been [previously] imposed" by the trial court, there is no evidence that they "engaged in the kind of 'flagrant bad faith' that would permit the imposition of 'death penalty sanctions,'" "no presumption can be inferred . . . that [their] case lack[ed] merit," and there was "no apparent need for the discovery" that the Smabys sought.
As noted above, sanctions must not be excessive. Cire, 134 S.W.3d at 839; TransAm., 811 S.W.2d at 917. In other words, a sanction imposed for discovery abuse should be no more severe than necessary to satisfy its legitimate purposes, which include securing compliance with discovery rules, deterring other litigants from similar misconduct, and punishing violators. Spohn Hosp., 104 S.W.3d at 882; TransAm., 811 S.W.2d at 917. Courts must consider less stringent sanctions and whether such lesser sanctions would fully promote compliance and discourage further abuse. Spohn Hosp., 104 S.W.3d at 882; Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex. 1992); TransAm., 811 S.W.2d at 917. Further, "[s]anctions that by their severity, prevent a decision on the merits of a case cannot be justified 'absent a party's flagrant bad faith or counsel's callous disregard for the responsibilities of discovery under the rules.'" Chrysler Corp., 841 S.W.2d at 849 (quoting TransAm., 811 S.W.2d at 918). Even then, lesser sanctions must first be tested to determine whether they are adequate to secure compliance, deterrence, and punishment of the offender. Chrysler Corp., 841 S.W.2d at 849; see also Cire, 134 S.W.3d at 842 ("[I]n all but the most egregious and exceptional circumstances, the trial court must test lesser sanctions before resorting to death penalty sanctions.").
Here, the record demonstrates that the trial court considered and imposed lesser sanctions before it issued the January discovery order in which it struck the Carons' pleadings, dismissed their claims with prejudiced, precluded them from "alleging, supporting or opposing any designated claims or defenses," and prohibited them from "introducing any evidence on such designated matters." Initially, in its September discovery order, the trial court imposed a $500 sanction against the Carons after they failed to respond to the Smabys' requests for disclosure, interrogatories, and requests for production of documents. Subsequently, after the Carons failed to comply with the trial court's September discovery order, which required them to "fully and completely respond" to the Smabys' discovery requests and pay the $500 sanction, the trial court, in its October discovery order, imposed an additional $1,000 sanction against the Carons and again required them to answer the requested discovery. Not only did the lesser sanctions imposed by the trial court not cause the Carons to comply with the trial court's orders or respond to the Smabys' discovery requests, but they completely ignored the lesser sanctions imposed by the trial court and did not pay them. See Warwick Oil & Gas, Inc. v. FBS Props., Inc., No. 01-14-00290-CV, 2015 WL 3637988, at *3-7 (Tex. App.—Houston [1st Dist.] June 11, 2015, no pet.) (mem. op.) ("The record . . . reflects that the trial court considered the availability of less stringent sanctions and imposed a series of less stringent sanctions in an attempt to secure appellants' compliance.").
As the trial court found in its January discovery order, the Carons, in this case, "repeatedly violated" the trial court's orders, including the September discovery order and October discovery order. In fact, they "deliberately ignored" the trial court's orders to "fully and completely respond to [the Smabys'] Disclosure Requests, Requests for Production of Documents[,] and Interrogatories and pay monetary sanctions of $1[,]500" to the Smabys. And the record supports the conclusion that the Carons' conduct in failing to comply with the trial court's discovery orders prevented the Smabys from timely obtaining evidence necessary to refute the Carons' claims and for the presentation of their own counterclaims. See 5 Star Diamond, LLC v. Singh, 369 S.W.3d 572, 578-79 (Tex. App.—Dallas 2012, no pet.). Further, as the trial court explained, the Carons also "engaged in a pattern of abuse, which [they] continue[d] to refuse to purge themselves of," and "exemplified . . . [a] blatant disregard of the discovery process."
Having reviewed the entire record, we hold that the trial court did not abuse its discretion in concluding that the Carons' bad faith conduct justified a presumption that their claims lacked merit. See TransAm., 811 S.W.2d at 918 ("[I]f a party refuses to produce material evidence, despite the imposition of lesser sanctions, the court may presume that an asserted claim or defense lacks merit and dispose of it."); see also 5 Star Diamond, LLC, 369 S.W.3d at 578-79 (trial court did not err in striking pleadings after party disregarded two orders compelling production and one for monetary sanctions); Finley Oilwell Serv., Inc. v. Retamco Operating, Inc., 248 S.W.3d 314, 319-22 (Tex. App.—San Antonio 2007, pet. denied) (no abuse of discretion in striking answer and entering default judgment after several orders compelling production and for monetary sanctions disregarded). Accordingly, we further hold that the trial court did not err in assessing death penalty sanctions against the Carons.
We overrule the Carons' third issue.
In their first issue, the Carons assert that the trial court erred in granting the Smabys' summary judgment on the Carons' claims for breach of the Contract for Sale and specific performance. In their fourth issue, the Carons assert that if the trial court's judgment is reversed, this Court should "order the Smabys to repay any monies [they] received by execution of the trial court's judgment." Because of our disposition of the Carons' second and third issues, we need not address these remaining issues. See TEX. R. APP. P. 47.1.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice Panel consists of Chief Justice Radack and Justices Jennings and Bland.