File: 051341F - From documents transmitted: 04/27/2007
AFFIRM and Opinion Filed April 27, 2007
Court of Appeals
Fifth District of Texas at Dallas
BONNIE JOHNSON, ON BEHALF OF CHELSEA
ELIZABETH JOHNSON, BENEFICIARY, Appellant
CHARLES CHESNUTT, Appellee
On Appeal from the 101st District Court
Dallas County, Texas
Trial Court Cause No. 03-04668
Before Justices Morris, Whittington, Richter
Opinion By Justice Richter
Bonnie Johnson, next friend for Chelsea Johnson, appeals the trial court's
award of death penalty sanctions and attorney's fees against her following her nonsuit of the
case. In eight issues, categorized according to the particular rule or statute under which the
sanctions are challenged, Bonnie argues that the trial court erred when it awarded sanctions
under Tex. R. Civ. P. 215, Tex. R. Civ. P. 13, and Tex. Civ. Prac. & Rem. Code Ann. §
10.004(b) (Vernon 2002). A motion requesting case-determinative sanctions was pending at the
time of the nonsuit. Because the award of sanctions was not arbitrary, unreasonable, or unjust,
the trial court did not abuse its discretion when it sanctioned Bonnie under Tex. R. Civ. P. 215.
Because we conclude that the sanctions were properly awarded under Tex. R. Civ. P. 215, we
need not consider whether the award was also appropriate under Rule 13 and the Civil Practice
& Remedies Code. We affirm the judgment of the trial court.
Factual and Procedural Background
Bonnie and Vernon Johnson were once partners in a law practice and in
marriage. Vernon managed the finances for the Johnsons' business and household. The Johnsons
established a trust for their daughter Chelsea, and asked their mutual friend Charles Chesnutt to
serve as trustee. The trust contained an exculpatory clause relieving the trustee from liability for
exercising his discretion unless his actions involved fraud or bad faith. Chesnutt delegated to
Vernon the authority to make investment decisions for the trust. Bonnie was aware of this
delegation of authority.
Bonnie and Vernon were subsequently engaged in a contentious divorce. After
the divorce, Bonnie discovered that the value of the trust had declined and hired an attorney to
evaluate whether she had a cause of action against Chesnutt. The attorney advised Bonnie that
the decreased value of the trust resulted from a fall in the market and declined to file suit.
hired another attorney to file suit against Chesnutt. The suit, brought
by Bonnie as next friend for Chelsea, alleged that Chesnutt had breached his fiduciary duty, but did
not specifically allege fraud or bad faith. See Footnote 1
The petition asserted that the trust had suffered losses in excess of
$50,000, but did not specify the nature and amount of the damages
alleged to have resulted from Chesnutt's conduct. The trust instrument
was attached as an exhibit to the petition, but the petition made no
reference to the exculpatory clause. Bonnie reviewed and approved the
petition before it was filed.
After the case was filed, the trial court provided the parties with a list of
court-specific policies, which included the “no continuance rule.” The no continuance rule
stated that the court would not grant continuances when the parties set the trial date themselves.
The policies also required the parties to mediate the case no later than thirty days before trial. On
July 28, 2003, the parties entered into an agreed level 3 scheduling order that established
deadlines for the designation of experts and the close of discovery and set the case for trial on
February 21, 2005. On July 29, 2003, the trial court issued a mediation order that required the
parties to file any objections to mediation within ten days of the issuance of the order.
Although she did not appear as counsel in the lawsuit, the record reflects that
Bonnie actively monitored the lawsuit. Over a period of approximately two years, Bonnie hired
and fired three attorneys. Despite the number of attorneys who worked on the file, the request
for initial disclosures that Chesnutt served at the inception of the lawsuit was never answered.
Complete substantive answers to interrogatories were not provided. Bonnie failed to designate an
expert witness or take Chesnutt's deposition before the close of discovery.
On December 1, 2004, Chesnutt filed a motion to compel and for sanctions.
Chesnutt requested that Bonnie be compelled to answer the interrogatories and request for
disclosures. Specifically, the motion urged that Bonnie be required to provide details on the
alleged $50,000 loss in the trust and disclose the amount and any method of calculating
damages. The motion also requested that Bonnie be compelled to provide the factual basis for
her claims and contentions by providing responses to interrogatories numbered 3 and 5-21. In
the alternative, Chesnutt requested that the court sanction Bonnie by excluding evidence of the
amount and method of calculation of any alleged damages and the factual basis for her claims.
On December 16, 2004, Chesnutt filed a motion for summary judgment which
alleged, inter alia, that Johnson acknowledged in her deposition testimony that she had no
claim for fraud or bad faith. The motion was set for hearing on February 15, 2005. Bonnie did
not respond to the motion.
Bonnie retained her fourth lawyer approximately one month before the
February 22, 2005 trial. The new lawyer entered an appearance on January 7, 2005, the day of
the hearing on Chesnutts' motion to compel. In an effort to avoid the consequences likely to
result from the failure to timely designate an expert witness, Bonnie's new counsel moved for a
continuance and requested an extension of the discovery deadlines. The court conducted an
evidentiary hearing on January 14, 2005. Although the court was not unsympathetic to the
dilemma faced by Bonnie's recently-hired counsel, the court noted that Bonnie, an attorney, had
taken an active role in the litigation. The motion for continuance was denied. The court ordered
the parties to mediation, but at the request of Bonnie's counsel, extended the deadline to January
27, 2005. The court reserved its ruling on the motion for sanctions, but noted that even after the
January 7 hearing Bonnie had failed to provide the discovery or respond to the motion to
The parties scheduled a mediation to occur on January 25, 2005. On January
20, 2005, Bonnie nonsuited the case by filing a “Notice of Dismissal.” On January 24, 2005,
the day before the mediation was to occur, Bonnie filed an objection to mediation. The objection
to mediation was not set for hearing and the court did not rule on the motion before the
mediation was scheduled to begin. Chesnutt and his counsel appeared for the mediation at the
appointed time, but Johnson and her counsel did not appear.
The court subsequently held a hearing on Bonnie's objection to the mediation.
During the hearing, Bonnie's counsel advised the court that they would file the suit again as soon
as Chelsea reached the age of eighteen. Chelsea was seventeen years old at the time.
On January 31, 2005, Chesnutt filed a document styled “Motion for Contempt and
Amended Motion for Sanctions.” The amended motion complained that Bonnie had taken a
nonsuit rather than face the adverse consequences of a third motion to compel, a ruling on the
summary judgment, or the upcoming trial. The amended motion also noted that Bonnie's
objection to mediation was not timely under the court's policy. Chesnutt further complained
about Bonnie's failure to comply with the court's mediation order. Chesnutt requested that the
court sanction Bonnie by dismissing the case with prejudice and reimbursing Chesnutt for his
defense costs. On February 1, 2005, the court entered a show cause order directing Bonnie and
her counsel to appear and respond to Chesnutt's amended motion. After a two day evidentiary
hearing at which Bonnie appeared and testified, the trial court made detailed findings of fact and
conclusions of law and ordered a “death penalty” sanction and award of attorney's fees against
Bonnie under Rules 215.3 and 13 of the Texas Rules of Civil Procedure, and Chapter 10 of the
Texas Civil Practice and Remedies Code. On July 19, 2005, the trial court signed a judgment
dismissing Bonnie's claims with prejudice and awarding Chesnutt his attorney's fees and costs.
This appeal followed.
Standard of Review
We review a ruling on a motion for sanctions under an abuse of discretion
standard. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004). In so doing, we review the
entire record, including the evidence, arguments of counsel, written discovery on file, and the
circumstances surrounding the party's discovery abuse. Response Time, Inc. v. Sterling
Commerce North America, Inc., 95 S.W.3d 656, 659 (Tex.App-Dallas 2002, no pet.). “The
test for an abuse of discretion review is not whether, in the opinion of the reviewing court, the
facts present an appropriate case for the trial court's action, but 'whether the court acted without
reference to any guiding rules and principles.'” Cire, 134 S.W.3d at 839 (citing Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241, 42 (Tex. 1985)). The trial judge's ruling
will be reversed only if it was arbitrary or unreasonable. Id.
The Rule 215 Sanctions Served a Purpose
Only one of Bonnie's eight issues challenges the sanctions under Tex. R. Civ.
P. 215. See Footnote 2 In this issue, Bonnie argues that her nonsuit rendered the
request for sanctions moot. According to Bonnie, once the nonsuit was filed, sanctions no longer
served the purpose of assuring a fair trial. Although the nonsuit may have obviated any fair trial
concerns, we cannot agree that Rule 215 sanctions were no longer appropriate.
A nonsuit renders the merits of the case moot. But Tex. R. Civ. P . 162 expressly provides
that a nonsuit does not affect the trial court's authority to act on a motion for sanctions pending
at the time of dismissal. See Tex. R. Civ. P. 162; Miller v. Armogida, 877 S.W.2d 361, 364
(Tex.App-Houston [1st Dist.] 1994, writ denied). Claims for costs and attorney's fees also
survive. Tex. R. Civ. P. 162; Klein v. Dooley, 949 S.W.2d 307, 308 (Tex. 1997). A trial court
may also act under a post-dismissal sanctions motion as long as it acts before the expiration of its
plenary power. See Scott & White Memorial Hosp. v. Schexnider, 940 S.W.2d 594, 596
(Tex. 1996); Jobe v. Lapidus, 874 S.W.2d 764, 766-68 (Tex.App.-Dallas 1994, writ denied).
The motion for sanctions pending at the time of nonsuit requested that Bonnie
be prohibited from introducing any evidence of alleged damages or the factual basis of her
claims. These sanctions would have been case determinative, and therefore constitute death
penalty sanctions. See Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 845 (Tex. 1992)
(death penalty sanction is any sanction that adjudicates a claim and precludes the presentation of
the merits of the case); Communications Sys. Corp. v. Tanner, 856 S.W.2d 725, 732 (Tex.
1993) (any sanctions which are “case determinative” may constitute death penalty sanctions).
Because the motion requesting death penalty sanctions was pending at the time of nonsuit, the
nonsuit did not effect the motion. See Tex. R. Civ. P. 162.
The fact that the merits of the case were extinguished by the nonsuit does not
necessarily mean that there was no longer a basis to impose sanctions. Sanctions serve a variety
of purposes, including the compensation of a party for past prejudice or punishment and
deterrence of bad faith conduct. See Aetna Casualty & Surety Co. v. Specia, 849 S.W.2d
805, 807 n.4 (Tex. 1993). After a careful review of the record, including the trial court's
detailed findings of fact and conclusions of law, we cannot conclude that the sanctions served no
The trial court found that Bonnie abused the discovery process and
demonstrated flagrant bad faith and callous disregard for the discovery rules. Although findings
of fact and conclusions of law filed in conjunction with a sanction may be “helpful”, they do
not carry the same weight on appeal as findings made under Tex. R. Civ. P. 296, and are not
binding on an appellate court reviewing the trial court's exercise of discretion. See Chrysler
Corp. v. Blackmon, 841 S.W.2d 844, 852 (Tex. 1992) (orig. proceeding) (findings helpful in
determining abuse of discretion); IKB Indus., Ltd., v. Pro-line Corp., 938 S.W.2d 440, 442
(Tex. 1997) (order on discovery sanctions may be reversed for abuse of discretion even when
findings are made). Here, the trial court's findings are fully supported by the record. Even under
the threat of sanctions, Bonnie refused to respond to Chesnutt's discovery. Instead, the court
found that Bonnie actively frustrated Chesnutt's efforts to define the claims and damages and
investigate potential defenses. Despite the numerous hearings, Bonnie offered no reasonable
explanation for the failure to respond to Chesnutt's discovery. The request for disclosures was
never answered. The response to Chesnutt's interrogatories simply mirrored the allegations of
the petition and asserted blanket objections. The response to the interrogatories was verified by
Bonnie, a bankruptcy attorney with twenty years experience. When Bonnie testified, she
admitted she did not “endeavor to set out her position as best as she was able” when
preparing her answers to interrogatories. The testimony of one of Bonnie's former counsel
established that the responses to Chesnutt's interrogatories were simply excerpts from a treatise
generally discussing the law of trusts. There were no case-specific facts explaining why these
general principles might have some application to the case that was filed. The trial court found
that Bonnie nonsuited the case to avoid a hearing on a third motion to compel. The court further
found that the sanctions were within its power to award to assure compliance with discovery and
to deter those who might be tempted to abuse discovery in the absence of a deterrent. On the
record before us, the trial court's determination that there was good cause for sanctions was
neither arbitrary nor unreasonable.
The Rule 215 Sanctions Were Just
Although the choice of sanctions is left to the discretion of the trial
judge, the sanctions imposed must be just. See Tex. R. Civ. P. 215 ; TransAmerican Natural Gas Corp.
v. Powell, 811 S.W.2d 913, 917 (Tex. 1996); Tidrow v. Roth, 189 S.W.3d 408, 412
(Tex.App.-Dallas 2006, no pet.). A sanction must meet two requirements before it can be
considered just. First, there must be a direct relationship between the offensive conduct and the
sanction imposed. TransAmerican Natural Gas Corp., 811 S.W.2d at 917. Second, the
sanction imposed must not be excessive. Id. Before imposing a death penalty sanction, a trial
judge must first consider the availability of lesser sanctions, and whether a lesser sanction would
be adequate to secure compliance. See Response Time, Inc., 95 S.W.3d at 660. Case
determinative sanctions are also limited by due process concerns. Such sanctions should only be
imposed in “exceptional cases” where they are “clearly justified” and it is “fully apparent that
no lesser sanction would promote compliance with the rules.” See Cire, 134 S.W.3d at
840-41. An exceptional case exists when a party's hindrance of the discovery process justifies a
presumption that her claims lack merit. Id. at 841; TransAmerican Natural Gas Corp., 811
S.W.2d at 918.
The court found that Bonnie's hindrance of the discovery process was so
persistent and so successful as to warrant the presumption that her claims had no merit;
otherwise Bonnie would have fully responded to discovery rather than face case determinative
sanctions. The court also found that there was no evidence of any factual basis for the lawsuit.
These findings are supported by the record. During the discovery process, Bonnie had multiple
opportunities to set forth the factual and legal basis for the lawsuit and a calculation of the
damages claimed, but failed to do so. Although the exculpatory language of the trust clearly
exonerates the trustee for discretionary activities unless there is fraud or bad faith, Bonnie
admitted under oath that she has no claim for fraud or bad faith. When the court requested
post-hearing briefing on whether the delegation of investment decision- making was a breach of
fiduciary duty, Bonnie still failed to articulate a colorable basis for her claim. The court also found
and the record reflects that no damages calculation was done before or after the filing of the
The record demonstrates the requisite relationship between the offensive
conduct and the sanction imposed. Bonnie attempted to assign the blame for the dilatory
conduct on the alleged incompetence of counsel. But the court specifically found that Bonnie
was more than just a mere bystander in the proceedings: she is a competent attorney who took
an active role in the litigation. The court further found that Bonnie was the only common thread
among all of the attorneys she employed.
When asked about the failure to depose Chesnutt or designate an expert, one
of Bonnie's former counsel testified that Bonnie failed to provide the information, authorization,
and funding. According to the trial court, the failure to respond to discovery was not the only
evidence of callous disregard that Bonnie exhibited toward the court and her responsibilities as a
The findings of fact and conclusions of law reflect that the court considered
lesser sanctions, but found that alternatives were neither available nor effective in promoting
compliance with the rules. As the court observed, the filing of the nonsuit effectively mooted
many of the other sanctions that were available. Bonnie admitted that the nonsuit was a tactical
effort to avoid the penalties likely to result from her failure to comply with her discovery
obligations. The court concluded that the case was exceptional and because the claims had no
merit, justice would not be served by allowing Bonnie an opportunity to litigate the case anew.
These findings are fully supported by the record. Under the circumstances presented in this case,
we conclude that the award of sanctions under Tex. R. Civ. P. 215 was not an abuse of
discretion and the sanctions imposed were just.
Because we conclude that the dismissal with prejudice and award of costs and
attorney's fees was an appropriate sanction under Tex. R. Civ. P. 215, we need not reach
appellant's remaining issues challenging the award under Tex. R. Civ. P. 13 and Chapter 10 of
the Civil Practices and Remedies Code. The judgment of the trial court is affirmed.
Footnote 1 The only reference to fraud was in the request for exemplary damages, which
generally alleged that Chesnutt “acted in a fraudulent and malicious manner.”
Footnote 2 The trial court's conclusions of law are partially segregated according to the rule
or statute to which they pertain. When these findings are specifically made pursuant to rule 215,
we are confined to determining whether the sanction was appropriate under that rule. See
American Flood Research Inc., v. Jones, 192 S.W.3d 581, 583-84 (Tex. 2006). Moreover,
the issues Bonnie asserts on appeal are segregated according to the rule or statute under which
the sanction was imposed.