SUTTON, Circuit Judge.
A grand jury indicted Ronald Clark for being a felon in possession of a firearm, and he pled guilty to the charge. On appeal, he challenges one feature of his 77-month sentence, a four-level enhancement in his advisory guidelines range for possessing the firearm "in connection with another felony offense." U.S.S.G. § 2K2.1(b)(6). We affirm.
I.
On January 18, 2008, less than four months into a five-year term of supervised release for aggravated assault, Ronald Clark got hold of a .357 Magnum revolver from his friend Kiki. That same day, Clark walked to the D.B. Todd Market with Kiki and their friend Mario "to get a cigar." R.44 at 25. On the way, he stopped behind a building, pulled back the hammer of the revolver and "clicked" the trigger once. Id. at 43. Since Clark "ain't no rookie at this," he knew that these steps would enable him to fire the gun the next time he pulled the trigger. App'x at 15. What he did not know, however, is that Kiki had loaded just three bullets into the revolver's seven-round chamber.
When they arrived at the store, Kiki entered, and Clark and Mario waited outside. As Kiki emerged from the store, she was arguing with Eric Allen, whom Clark did not know. According to Clark's testimony, Allen, in a raised, angry voice, said that Kiki "brought [Clark and Mario] down there to do something to him and that he will do something to [them] if [they] don't leave." R.44 at 28. Clark says that Allen threatened them, "put his hand in his pocket" and told Clark, "Man, you need to get off from down there." Id. at 28-29. Clark then "upped" him, which is to say pulled his gun on Allen. Id. at 29.
Allen took his hand out of his pocket — without a firearm — and rushed at Clark. Clark jumped back, aimed the revolver at Allen and pulled the trigger. Rather than firing, as Clark anticipated, the gun merely "clicked." App'x at 18. Clark again ran back a short distance and tried to shoot Allen. Again, just a click. Allen caught up with Clark and they "got to wrestling over the gun." R.44 at 29. Clark's friend Mario eventually joined the scuffle but tripped on a stump and "grabbed [Allen's] dreds," causing all three men to fall to the ground. App'x at 9. As Clark got back to his feet, he tried to shoot Allen again. The third time worked. But in his haste, Clark shot wide of the mark, and the bullet struck Mario (up to then, his friend) in the leg. Despite the wound, Mario managed to flee the scene while Clark and Allen struggled over the gun until the police arrived and broke up the fight.
Officers arrested Clark and took him to the Davidson County Criminal Justice Center. On January 21, 2008, Clark placed a call from jail and discussed the events leading to his arrest with both Kiki and Mario. The call was recorded and suggested that Clark went to the store prepared for a fight. A few months later, a federal grand jury indicted Clark for being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). The State transferred him to federal custody, and he pled guilty. Clark's Presentence Report recommended a 77-96 month guidelines range based on an offense level of 21 and a criminal history of VI. Included in the calculation was a four-level enhancement for possessing the firearm "in connection with another felony offense," U.S.S.G. § 2K2.1(b)(6) — namely: (1) aggravated assault, see Tenn. Code Ann. § 39-13-101, and (2) reckless endangerment with a deadly weapon, see T.C.A. § 39-13-103.
Clark objected to the four-level increase, arguing that he acted in self-defense, which provides a complete defense to either felony under Tennessee law. Both sides presented evidence about the defense at the sentencing hearing. On the prosecution's side: the government played the fifteen-minute (secretly recorded) tape of Clark's phone conversation about the scuffle; and Special Agent James Rhoden testified about his investigation of the case. On Clark's side: Clark testified that he tried to shoot Allen because he "thought [Allen] was going to get the gun from [him] and shoot [him] with it," R.44 at 32; and Clark's friend Mario testified that Allen "was clutching like he had a gun" and "told [them] . . . he [was] going to shoot all of [them]," id. at 61-62.
The district court rejected Clark's self-defense argument and found that Clark violated Tennessee's prohibition on reckless endangerment with a firearm. The court did not believe that Clark's actions rose "to the level of what would be a legal self defense because the amount of force, a gun, was used to repel someone attacking him with his hand. It was disproportionate. . . ." R.44 at 91. After considering the § 3553(a) factors, the court imposed a 77-month prison sentence, which lies at the bottom of the advisory guidelines range.
II.
When a case involves an enhancement under § 2K2.1(b)(6), the district court may make, and we may be called on to review, several different types of rulings. The district court may interpret § 2K2.1(b)(6) itself, a ruling that receives fresh review on appeal. United States v. Burns, 498 F.3d 578, 580 (6th Cir. 2007). The court may interpret a state or federal statute defining the predicate felony offense, a ruling that also receives fresh review on appeal. United States v. Woodard, 337 Fed.Appx. 534, 537 (6th Cir. 2009). And the court may make findings of fact material to these legal interpretations, findings that we review for clear error. United States v. Rogers, 594 F.3d 517, 522 (6th Cir. 2010).
Clark's appeal raises two basic questions: (1) Did Clark commit reckless endangerment under Tennessee law? (2) And, if so, did Clark satisfy the requirements for asserting a self-defense claim? For the reasons that follow, the district court permissibly rejected both of Clark's arguments.
A.
Reckless Endangerment. Under Tennessee law, "[a] person . . . who recklessly engages in conduct that places or may place another person in imminent danger of death or serious bodily injury" is guilty of a felony if the offense is "committed with a deadly weapon." T.C.A. § 39-13-103. Clark's conduct — above all aiming a loaded and cocked gun and repeatedly pulling the trigger — falls neatly within the category of "recklessly" putting another person "in imminent danger of . . . serious bodily injury" with a "deadly weapon."
State v. Campbell, No. W2005-01418-CCA-R3-CD, 2006 Tenn.Crim.App. LEXIS 861 (May 2, 2006), upheld a conviction under the statute in similar circumstances. In rejecting a challenge to the sufficiency of the evidence, the court noted:
Defendant . . . carried a concealed gun in the waistband of his pants . . . on the day of the incident. While wearing the gun, Defendant walked down the street to a neighboring house where he encountered the victim [A]fter exchanging words with the victim, Defendant fired the weapon at the victim and shot him in the thigh. Defendant intended to fire the gun at the victim, and he knew that doing so would cause injury to the victim.
Id. at *9-10. The only potential difference between
Campbell and this case is that Clark shot an unintended victim (Mario Scales), not an intended victim (Allen), but that reality does not alter the statute's application. It applies so long as the defendant "place[s] another person in imminent danger," T.C.A. § 39-13-103(a), regardless of whether the intended harm, as opposed to some other harm, comes to pass.
See State v. Ramsey, 903 S.W.2d 709, 712 (Tenn.Crim.App. 1995).
Clark submits that the district court found reckless endangerment merely because "he showed up with a gun and cocked it." R.44 at 100. But the court never said that carrying a cocked and loaded gun by itself constituted reckless endangerment, and no party to the case asked for such an interpretation. Why, indeed, would anyone propose such an interpretation given everything else Clark did, including firing the weapon? As part of its analysis of the reckless endangerment violation and self-defense claim, the court simply included these facts in the mix, as well it should have. In Campbell too, it bears adding, the court thought that "carr[ying] a concealed gun in the waist-band" was a relevant fact (among others) in determining whether the defendant violated the statute. 2006 Tenn.Crim.App. LEXIS 861 at *10. So too here.
B.
Self defense. The district court properly applied (or more precisely did, not apply) Tennessee's self-defense statute. Under Tennessee law, self-defense is a "defense to prosecution" for otherwise unlawful conduct, T.C.A. § 39-11-601, and it is defined as follows:
(b)(1) . . . [A] person who is not engaged in unlawful activity and is in a place where the person has a right to be has no duty to retreat before threatening or using force against another person when and to the degree the person reasonably believes the force is immediately necessary to protect against the other's use or attempted use of unlawful force.
(2) . . . [A] person who is not engaged in unlawful activity and is in a place where the person has a right to be has no duty to retreat before threatening or using force intended or likely to cause death or serious bodily injury, if:
(A) The person has a reasonable belief that there is an imminent danger of death or serious bodily injury;
(B) The danger creating the belief of imminent death or serious bodily injury is real, or honestly believed to be real at the time; and
(C) The belief of danger is founded upon reasonable grounds.
T.C.A. § 39-11-611. The statute distinguishes between using "force" in general and using "force intended or likely to cause death or serious bodily injury." To invoke the latter defense, the statute says, the defendant must reasonably believe that there is imminent danger of death or serious bodily injury. Tennessee law also provides that the defense is unavailable "[i]f the person using force provoked the other individual's use or attempted use of unlawful force, unless . . . [t]he person using force abandons the encounter or clearly communicates to the other the intent to do so; and . . . [t]he other person nevertheless continues or attempts to use unlawful force against the person. . . ." T.C.A. § 39-11-611(e). This last point applies not only to "the initiation of a confrontation" but also to "an unreasonable escalation of a confrontation in progress." State v. Rentier, 912 S.W.2d 701, 704 (Tenn. 1995). The prosecution bears the burden of proving that the defendant did not act in self-defense, see State v. Belser, 945 S.W.2d 776, 782 (Tenn.Crim.App. 1996), and it is "well settled" that the existence (or not) of the defense raises "a factual determination" for the "trier of fact." State v. Goode, 956 S.W.2d 521, 527 (Tenn.Crim. App. 1997); see also State v. Perkins, No. W2007-02774-CCA-R3-CD, 2009 WL 1741400 at *3 (Tenn.Crim.App. June 7, 2009).
That the existence of self-defense raises a question of fact lengthens Clark's climb on this appeal and steepens it as well. Appellate courts tend to be reluctant to second guess the factual findings of trial judges because "[u]nlike the trial court, we [do] not see the defendant [and other witnesses] testify at the sentencing hearing." United States v. Poynter, 495 F.3d 349, 351 (6th Cir. 2007); see also Beard v. Kindler, ___ U.S. ___, 130 S.Ct. 612, 618, 175 L.Ed.2d 417 (2009). In this instance, before rejecting the defense, the district court heard three witnesses from both sides about the question and enjoyed a front-row seat in assessing the import and credibility of their testimony. See Poynter, 495 F.3d at 351. Faced with a second-hand account of the proceeding and the detached perspective of a transcript, we cannot say that the district court clearly made a mistake. See United States v. Rogers, 594 F.3d 517, 522 (6th Cir. 2010).
Clark, it is true, presented several pieces of evidence that, if credited, could persuade a trier of fact that his attempts to shoot Allen — and his accidental shooting of Mario — were reasonably justified in response to an imminent threat of death or serious bodily injury:
* Clark told his friend Mario that he "went to jail . . . tryin' to save" himself and his friends and that "he wasn't even fixin' to up on [Allen] . . . until he . . . went in his pocket." App'x at 16-17.
* Mario recalled thinking that "if [Allen] get this pistol . . . he gonna kill both of us," App'x at 16, and later testified at the sentencing hearing that Allen "was clutching like he had a gun," R.44 at 61.
* Clark testified that when Allen reached into his pocket he said that "he was going to shoot [them]," R.44 at 28, and also testified that he got the gun in the first place because he "had been in some altercation . . . [and] people had been calling [his] phone threatening [him] and stuff like that,"
id. at 26.
But the government, too, presented evidence in support of its theory of what happened that day:
* Clark admitted that he never saw Allen with a gun, and after he testified that "[Allen] was talking about he was going to shoot us," R.44 at 28, his counsel asked, "He was threatening to shoot you?" and Clark responded, "He was just threatening,"
id. at 20, all suggesting that Clark did not have a reasonable fear of imminent death or serious bodily injury.
* Clark cocked the revolver before he spoke with Allen, suggesting that he went to the market intending to get in a fight and that
he was the aggressor.
* Clark told Mario that when he was wrestling with Allen he told him to let go of the revolver or that they would both go to jail, but Allen said that he did not care about going to jail. "I said," Clark recounted, "alright. I'm gonna kill you. . . . I was mad as a mother f — er," App'x at 16, suggesting that he fired the gun not to save himself from the threat of injury or death but from the threat of jail.
* And Clark's testimony was inconsistent. In describing the third time he pulled the trigger and shot Mario, Clark said both that he "tried to pull the trigger again," R.44 at 30, and that it was unintentional,
see id. at 42.
In the face of this evidence, a reasonable trier of fact could have gone either way. The resolution of this self-defense issue thus necessarily depended on credibility assessments that we have no basis here to second-guess.
But wait, protests Clark, "the Government cannot explain what safer course of action Ronald Clark should have taken when he was threatened with death by a dangerous man who acted as if he had a gun and was accompanied by two gangsters." Clark Reply Br. 1. But this argument, too, overlooks the standard of review, premised as it is on inferences favoring Clark's position, not the fact-finder's. The court found that the only threat to which Clark reasonably could have responded was the need to "repel someone attacking him with his hand." R.44 at 91. Yet here, and throughout his appellate briefs, Clark leans heavily on factual assertions he made below that we could credit only if he had won below. He did not. Having lost below, Clark is stuck with a record that requires us to read the facts and inferences in favor of the district court's ruling, cf. United States v. Panak, 552 F.3d 462, 465 (6th Cir. 2009), not as a vindication of the truth of his testimony below. Unless the district court clearly made a mistake in its factual findings — by, say, mischaracterizing the evidence, misunderstanding it or otherwise taking an incoherent path in construing it — we must affirm Clark's sentence. See Rogers, 594 F.3d at 522. Since the record plausibly establishes that Clark "unreasonably] escalat[ed] . . . a confrontation in progress," Renner, 912 S.W.2d at 704, when he pulled the gun on Allen, we must do exactly that.
III.
For these reasons, we affirm.
ition of "domiciliary." Black's Law Dictionary defines "resident" as "[a] person who lives in a particular place" or "[a] person who has a home in a particular place."
Id. at 1424. Regarding the second definition of "resident," Black's Law Dictionary adds: "a resident is not necessarily either a citizen or a domiciliary."
Id. As previously stated, Navarro testified that she had lived in a house in Austin since September 2005. She therefore also satisfies the definition of a "resident."
Given all of the circumstances, we conclude that the trial court did not abuse its discretion in denying Galan's plea in abatement, see Dolenz, 620 S.W.2d at 575, and that in any case, Navarro satisfied the domiciliary and residency requirements at the time of trial. Accordingly, we overrule this issue.
Sanctions
Galan asserts that the trial court erred in imposing sanctions prohibiting him from offering evidence at trial as to his separate-property claims. He contends that the trial court erred in imposing the sanctions because: (1) there was not a pending motion for sanctions at the time the sanctions were imposed; (2) he was not given notice or a hearing before the sanctions were imposed; (3) he did in fact appear for his October 2, 2007 deposition but properly invoked his Fifth-Amendment right to remain silent; (4) at the time the trial court imposed the sanctions, it had no information regarding previously imposed sanctions; and (5) an October 15, 2007 order discharged Galan from all previous orders imposing sanctions.
A trial court's ruling on a motion for sanctions is reviewed for an abuse of discretion. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004). The test for an abuse of discretion 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." Id. at 838-39. The trial court's ruling should be reversed only if it was arbitrary or unreasonable. Id. at 839. A trial court's discretion is limited by the requirements that sanctions be "just" and comport with due process. See Tex. R. Civ. P. 215.2(b); TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991). For sanctions to be just, there must be a direct relationship between the offensive conduct and the sanction, and the sanction must not be excessive. Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex. 1992).
Here, the hearing at which the sanctions prohibiting Galan from offering evidence supporting his separate-property claims ("the final sanctions") were imposed took place on November 5, 2007, the day before trial. At that point in the pre-trial proceedings, the trial court had already warned Galan on multiple occasions to comply with discovery requests and had imposed sanctions for his failure to do so. Specifically, after an April 2007 hearing on a motion to compel, the trial court found that Galan had "wholly failed to respond or to object to any of [the] properly served discovery requests" and "wholly failed to complete and exchange his Sworn Inventory and Appraisement." The trial court ordered Galan to provide the documents by a certain date and to pay the attorney's fees Navarro incurred in bringing the motion. At a hearing on Navarro's second motion to compel and motion for sanctions in May 2007, Galan's counsel requested thirty more days to respond to the discovery requests. The trial court granted the request but stated: "This [order] needs to be complied with and not before the Court again. And if it is [before the court again], then I would certainly encourage significant sanctions."
In July 2007, the trial court held a hearing on Navarro's third motion to compel and motion for sanctions and found that Galan failed to comply with the trial court's previous order. As sanctions, the trial court prohibited Galan from offering any documentary evidence in support of his separate-property claims unless the evidence was produced prior to July 19, 2007, the day the order was signed.
At a hearing on August 24, 2007 — this time regarding a motion for enforcement of the trial court's July 19, 2007 order, motion to compel depositions, and motion for sanctions — Navarro's counsel informed the trial court that Galan had not yet complied with previous court orders to make mortgage payments, pay property taxes, and pay Navarro temporary support and interim attorney's fees. Navarro's counsel requested that the trial court create a new deadline for Galan to comply, and the trial court declined, stating:
I'm telling you that moving the date is just not very effective. And so — I'm not inclined to do that, because I don't think that's the way to enforce my order. I think the way to enforce my order is to get his attention and make sure he understands that there are consequences to the failure to follow a court order. And moving the date isn't a consequence that I think makes sense. [Galan's counsel], you need to advise your client . . . that it is very possible that he will go to jail for violation of this court's order and that I'm very serious about that. I don't know that I'll put him in jail. I'm not making a decision about that yet. I'm telling you that I don't think that moving the date makes a lick of sense. He's already had a date. It's come and gone. And I'm very serious about enforcing my own court orders, and I will very much consider putting him in jail if he doesn't comply with it.
After the hearing, the trial court denied Navarro's motion for sanctions but granted her motion to compel depositions. The trial court ordered, among other things, that Galan be deposed on September 4, 2007. Galan did not appear for his deposition as ordered.
The next order regarding a deposition setting for Galan occurred at a hearing on September 10, 2007. At the hearing, the trial court ordered that Galan appear for his deposition on September 18, 2007. Galan did not appear for his deposition as ordered. At a subsequent hearing on September 27, 2007, the trial court found that Galan failed to comply with four court orders by not responding to discovery requests and not paying monetary sanctions. The court further sanctioned Galan, ordering that he was prohibited from offering any evidence regarding his separate-property claims unless the evidence was produced prior to the close of discovery on September 21, 2007. In a separate order, the trial court also found that Galan failed to appear for two depositions and ordered him to appear on October 2, 2007. The court further ordered that if Galan did not appear for his deposition on October 2, 2007, he would be prohibited from offering any evidence of his affirmative claims.
When Galan arrived with his counsel for his deposition on October 2, 2007, he was served with a motion for enforcement of previous court orders by contempt, alleging that he had not responded to discovery requests, paid monetary sanctions, or appeared for depositions as ordered. Because the motion requested that Galan be jailed for noncompliance, Galan claimed a Fifth Amendment right not to incriminate himself and left without testifying.
At an October 15, 2007 hearing regarding various motions, the trial court sanctioned Galan for his failure to respond to Navarro's second set of interrogatories by ordering that Galan's experts were prohibited from testifying as to any impressions or opinions that had not been disclosed as of the date of the hearing. At the same hearing, Navarro offered to withdraw her request for jail time with prejudice as long as Galan appeared for his deposition on October 17, 2007, and Galan agreed. Accordingly, the trial court ordered Galan to appear and testify at his deposition on October 17, 2007. One of the motions for which the hearing was held was a motion for sanctions filed by Navarro. The trial court deferred its ruling on the motion, stating:
With regard to the pending motion for sanctions, I'm going to remain that — keep that under advisement until after the October 17[th] deposition.
If he does not give his deposition . . . on October 17th, I will take up that motion for sanctions; and if he does but it's incomplete in some way or something, I'll, again, deal with that at that time. But you should, as you prepare and since your deadline for preparation of documents and exchange of information and so forth has been extended until Friday, you should both just continue to assume that all the issues that have always been in the case are still in the case and operate accordingly. Better to over prepare than to under prepare. And I appreciate that this might create some inconvenience to you, but I'm not going to decide that till I know whether or not he cooperates at his deposition.
And I've said before and I've made rulings before about whether or not certain evidence is going to be able to be offered and certain people will be allowed to testify and so forth, depending on whether or not they give depositions and so on. And I'm not changing any of those rulings. I just want to keep my options open for further sanctions, if necessary, in the event that he does not cooperate on October 17th. But that one will stay pending.
Galan did not appear for his deposition on October 17, 2007, claiming that he was ill and under doctor's orders to stay in bed.
The next hearing was on November 5, 2007, during which the trial court imposed the final sanctions that Galan complains about on appeal. The district judge who presided at the hearing, Judge Byrne, had not presided at any of the previous hearings. At the hearing, Navarro's counsel explained to Judge Byrne that other district judges had ordered Galan to appear for his deposition four times but that he still had not done so. Galan's counsel explained that Galan appeared on the third date on which he was ordered to appear, October 2, 2007, but refused to answer questions because, upon his arrival, a process server served him with a show-cause order that threatened jail time if he did not appear in court and explain why he had not made certain payments mandated by the court. Galan's counsel stated that he had advised Galan to assert his Fifth Amendment right to remain silent. Judge Byrne stated that she did not understand why Galan could not have answered questions about the identification and valuation of property related to the divorce and then assert his Fifth Amendment right only when he was asked questions about his failure to pay court-ordered amounts of money. Galan's counsel stated that he felt that Galan could assert the privilege for all questions.
Navarro's counsel also explained to Judge Byrne that the most recent order, which was issued by Judge Livingston on October 15, 2007, ordered Galan to appear for his deposition on October 17, 2007. She informed Judge Byrne that Galan did not appear as ordered on October 17, claiming he was ill. Judge Byrne focused on Judge Livingston's October 4, 2007 order
and the pending motion for sanctions, which led to the following exchange between the trial court and Galan's counsel:
Court: The order reads specifically as follows: The Court further orders that if respondent, Mr. Galan, fails to appear for his oral deposition on October 2nd, 2007 in the offices of Gray Becker at 9:00 a.m. that he will be sanctioned as follows: Respondent Galan is prohibited from offering any evidence, whether or not produced, of any affirmative claim in this matter. What is your response?
Counsel: Your Honor, that was heard by — that's a motion that's being carried by the court, it was heard by Judge Livingston when [Navarro's counsel] filed. That was the hearing in which I asked [Navarro's counsel] to withdraw the show cause and he would appear immediately to testify. And Judge Livingston after hearing all of the argument, decided not to rule on it. So there is no order as of yet. As of that request we actually had a hearing in front of Judge Livingston there and we —
Court: You don't have a ruling. Okay. The Court grants the sanctions and that Mr. Galan will be prohibited from offering any evidence of any affirmative claim in this matter for his violation of the October 2nd, 2007 [sic] order for failing to appear and answer questions at a deposition.
A similar discussion occurred between Judge Livingston and Galan's counsel during the October 4, 2007, hearing in which Judge Livingston deferred her ruling on Navarro's motion for sanctions and ordered Galan to appear for his deposition on October 17, 2007. Judge Livingston explained her position regarding Galan's refusal to testify on October 2, 2007, as follows:
[Navarro's counsel] can take [Galan's] deposition for eight and a half hours, and in the last 30 minutes if she asks a question that might incriminate him, he can invoke his right against self-incrimination at that time. He can ask — she can ask the first question of the deposition that he thinks requires him to invoke his privilege. He can invoke it on question number 1. He can invoke it on question number 101. He can invoke it whenever it's applicable. . . .
I'm just telling you that there is no relationship whatsoever to the property issues that[are] going to be the subject in front of this jury about the division — the character of the property and the division of the property, let alone his affirmative claims . . .[N]one of that is going to incriminate him in any way. And he's not suggested without divulging any confidences, which I'm not certainly asking you to do, but there is no relationship that's obvious between his claims for affirmative relief or hers with regard to the division of the property or the character of the property that would incriminate him in any way. So her filing an enforcement action to enforce the terms of a temporary order [has] absolutely nothing to do with the ultimate issues that have to be decided by the jury in the divorce case.
In a written order memorializing the trial court's verbal ruling, the trial court found that: (1) monetary sanctions were imposed on Galan on May 10, 2007 for failure to answer written discovery; (2) sanctions were imposed on Galan on July 19, 2007, prohibiting him from offering any documentary evidence as to his separate-property claims if the evidence was not produced by July 19, 2007; (3) sanctions were imposed on Galan again on October 4, 2007, prohibiting him from offering any evidence of his separate-property claims if the evidence was not produced by September 21, 2007; (4) Galan was ordered to appear for his deposition on four separate dates but failed to appear for any of them; (5) Galan was ordered to appear for his deposition on October 2, 2007, and was warned that if he failed to appear, he would be prohibited from offering any evidence of any of his affirmative claims; (6) Galan failed to appear and be deposed on October 2, 2007; and (7) lesser sanctions had been imposed on Galan but failed to result in his compliance with court orders. Accordingly, the trial court ordered that Galan was "hereby sanctioned for abuse of the discovery process and for failure to appear for oral deposition on four separate dates as ordered, said sanctions to be a prohibition against [Galan] offering any evidence as to any affirmative claim at trial, including his claim of separate property upon which [he] has the burden of proof."
In his first argument regarding the final sanctions, Galan contends that there was not a pending motion for sanctions at the time the final sanctions were imposed. Galan argues that a First Amended Motion for Sanctions filed by Navarro was withdrawn by Navarro's counsel at a hearing on October 4, 2007, and that it was also stricken by the trial court, thus leaving no pending motion for sanctions. However, Galan does not accurately depict what occurred at the hearing. According to a transcript of the hearing, Galan objected to Navarro's first amended motion for sanctions, claiming he did not have enough notice that the motion would be addressed at the hearing. The trial court sustained Galan's objection but noted that there was no objection to Navarro's original motion for sanctions and that there was no reason why the court could not hear the original motion at that time. Navarro's counsel stated that she was withdrawing the amended motion and was ready to proceed on the original motion. Galan's counsel objected, stating that the original motion became void as of the moment the amended motion was filed. The trial court overruled his objection, stating that the amended motion no longer existed because it had been withdrawn and was stricken for all purposes, thus leaving the original motion intact. The trial court then considered the original motion.
Ultimately, the trial court stated that it would defer its ruling on the motion for sanctions, taking it "under advisement," until after it ruled on Navarro's motion for summary judgment. Thus, the motion for sanctions was still pending at the close of the October 4, 2007, hearing. Accordingly, we reject Galan's argument that there was no motion for sanctions pending when the trial court imposed the final sanctions on November 5, 2007.
In his second argument, Galan asserts that he was not given notice or a hearing before the final sanctions were imposed on November 5, 2007. However, Galan had considerable notice that the final sanctions were a possibility and several hearings on the matter before the final November 5, 2007 hearing. As we have already described in detail, Galan was repeatedly sanctioned by the trial court throughout the pre-trial proceedings for his failure to answer discovery requests and appear at his deposition. Sanctions regarding prohibitions on aspects of his separate-property claims began at a hearing on July 19, 2007, at which the trial court sanctioned Galan by prohibiting him from offering any documentary evidence in support of his separate-property claims unless the evidence was produced by July 19, 2007. Galan was similarly sanctioned after a hearing on September 27, 2007, at which the trial court prohibited him from offering any evidence of his separate-property claims unless the evidence was produced by September 21, 2007. Also at the September 27, 2007 hearing and in an order memorializing the trial court's ruling at the hearing, the trial court explicitly warned Galan that if he did not appear for his deposition on October 2, 2007, he would be prohibited from offering any evidence of any of his affirmative claims.
At the November 5, 2007 hearing, the trial court learned that Galan had appeared for his deposition on October 2, 2007, but had refused to answer questions, asserting his Fifth Amendment right to remain silent based on a show-cause order served on him upon his arrival. The trial court disagreed with Galan's position that he could not have answered the questions relating only to the property involved in the divorce proceedings, and the trial court found that Galan had not appeared for his deposition as ordered.
Given all of the hearings that the trial court conducted based on Galan's failure to follow court orders — including the hearing on November 5, 2007, when the final sanctions were imposed — and considering the multitude of sanctions imposed on Galan and the explicit warnings given to him by the trial court that he would be prohibited from offering evidence as to his separate-property claims if he did not comply with court orders, we reject Galan's argument that he did not receive notice and a hearing before the imposition of the final sanctions.
To the extent that Galan argues that the trial court's sanctions violated constitutional due process because they were merits-based sanctions, we reject the argument. Although the sanctions were severe, the Texas Supreme Court has said that a trial court may impose merits-based sanctions when a party shows flagrant bad faith or counsel shows callous disregard for the responsibilities of discovery under the rules; when a party's hindrance of the discovery process justifies a presumption that its claims or defenses lack merit; and when the sanctions are clearly justified and it is fully apparent that no lesser sanctions would promote compliance with the rules. See Spohn Hosp. v. Mayer, 104 S.W.3d 878, 882 (Tex. 2003); Trans American Natural Gas Corp. v. Powell, 811 S.W.2d 913, 918 (Tex. 1991).
Here, as we have already detailed at length in the opinion, the trial court held several hearings at which it found that Galan had not complied with discovery requests or court orders to respond to discovery requests. The trial court warned Galan that it would impose significant sanctions and even consider sending him to jail if he continued to fail to comply with court orders. Galan still did not comply. Eventually, the trial court began limiting the evidence that Galan could offer at trial in support of his separate-property claims, and finally, the trial court prohibited Galan from offering any evidence in support of his separate-property claims. Given that Galan repeatedly failed to comply with court orders despite the trial court's warnings, we conclude that the trial court did not abuse its discretion in determining that Galan showed flagrant bad faith. Further, the trial court imposed lesser sanctions — monetary sanctions and limitations on the evidence Galan could offer at trial in support of his separate-property claims — and Galan continued to disregard court orders, making it apparent that lesser sanctions were not promoting compliance with the discovery rules and justifying a presumption that his separate-property claim lacked merit. See Trans American, 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."). Accordingly, we conclude that the trial court did not violate constitutional due process in imposing merits-based sanctions in this case. See id.; Mayer, 104 S.W.3d at 882.
In his third argument, Galan contends that he should not have been sanctioned based on his failure to testify at his October 2, 2007 deposition because he properly relied on his Fifth Amendment right to remain silent in refusing to testify. However, Galan does not cite to any legal authority in support of his argument. Accordingly, he waives this argument. See Tex. R. App. P. 38.1(i). We also note that the trial court informed Galan on more than one occasion that he could have answered questions relating to the identification of and valuation of property involved in the divorce and asserted his Fifth Amendment right only when asked questions regarding his failure to comply with court-ordered payments. In addition, the trial court did not impose the final sanctions based solely on Galan's refusal to testify on October 2. In imposing the sanctions, the trial court recited each of the times that Galan was sanctioned for failure to answer discovery requests or failure to appear at his deposition and specifically stated that he was sanctioned "for abuse of the discovery process and for failure to appear for oral deposition on four separate dates as ordered." Accordingly, we reject this argument.
Regarding Galan's refusal to testify at his October 2, 2007 deposition, Galan also asserts that the trial court should have sanctioned his trial counsel rather than him because he was simply following his trial counsel's advice in asserting his Fifth-Amendment right to remain silent. Galan is correct in his assertion that a trial court may impose sanctions exclusively on an attorney if the evidence demonstrates that the offensive conduct is attributable to counsel alone. See American Flood Research, Inc. v. Jones, 192 S.W.3d 581, 584 (Tex. 2006). However, an appellate court must review the entire record in determining whether the trial court abused its discretion in imposing sanctions, see id. at 583, and the entire record reveals that Galan repeatedly flouted court orders regarding the discovery process. Even if Galan's attorney was solely responsible for Galan's refusal to testify on October 2, 2007, Galan's actions at that particular deposition setting are only one of the many actions for which he was sanctioned. Accordingly, we reject this argument.
In his fourth argument, Galan asserts that Judge Byrne should not have imposed the final sanctions because she was not the presiding judge at the previous hearings and had not considered any evidence or arguments regarding previously imposed sanctions. However, the record shows that Judge Byrne considered at least two previous orders that imposed sanctions involving Galan's affirmative claims. The transcript from the hearing held on November 5, 2007, shows that Judge Byrne considered a July 19, 2007 order in which Galan was found to have failed to respond to discovery requests and prohibited from offering any documentary evidence in support of his separate-property claims unless the evidence was produced to Navarro before July 19, 2007. The transcript also shows that Judge Byrne considered the October 4, 2007 order in which the trial court found that Galan failed to appear for two court-ordered depositions, ordered him to appear on October 2, 2007, and warned that he would be prohibited from offering any evidence of any of his affirmative claims if he did not appear for his deposition on October 2, 2007. In addition, the order Judge Byrne issued after the hearing indicated that she considered the entire record because the order listed all of the previous sanctions imposed on Galan before the imposition of the final sanctions.
We also note that Galan requested on April 30, 2007, that the trial court take judicial notice of adjudicative facts in the case, including all documents presently in the court's file, all documents that would later become part of the court's file, and all findings of fact and conclusions of law that were issued in any orders or judgments in the case. Further, Galan does not cite to, and we have not found, any legal authority for the proposition that a district judge operating within a centralized, rotating docket system cannot issue a ruling on a motion if he or she did not preside over previous pre-trial hearings or directly hear all of the same evidence that each of the previous district judges heard. We therefore overrule this argument.
Galan also alleges within this argument that Judge Byrne was unaware that Judge Livingston already considered the same evidence — Galan's assertion of his Fifth-Amendment right to remain silent on October 2, 2007 — at a hearing on October 4, 2007, and that Judge Livingston "refused" to impose the same sanctions that Judge Byrne later imposed. However, Galan in accurately summarizes the record. At the hearing before Judge Livingston on October 4, 2007, Judge Livingston heard arguments regarding Navarro's motion for partial summary judgment, which was directed at Galan's affirmative claims. Judge Livingston also heard arguments regarding Navarro's motion for sanctions, in which Navarro asked the court to prohibit Galan from offering any evidence regarding any of his affirmative claims. After hearing arguments on both motions, Judge Livingston explained that she would not rule on the motion for sanctions until after she ruled on the motion for summary judgment. Specifically, she stated:
I'm going to . . . wait until I've looked at the summary judgment, because to the extent that the summary judgment might be granted, then your motion would only apply to those affirmative claims of Mr. Galan that are still at issue. If your — if the motion for summary judgment is denied, then it would apply to whichever ones it's denied as to.
Thus, Judge Livingston did not "refuse" to grant Navarro's motion for sanctions but rather deferred her ruling until a later date.
In his fifth argument, Galan contends that the trial court erred in imposing the final sanctions because an October 15, 2007 order discharged Galan from all previous orders imposing sanctions. We disagree with Galan's characterization of the October 15, 2007 order. The order was based on the trial court's ruling at a hearing that took place the same day. At the hearing, the trial court addressed a writ of habeas corpus filed by Galan regarding Navarro's show-cause order and her request in the order that Galan serve jail time for not complying with court orders. Navarro offered to withdraw the request for jail time with prejudice as long as Galan appeared for his deposition on October 17, 2007, and made all of the payments he had been ordered to make. The trial court asked the parties if they could come to an agreement in which Galan agreed to appear for his deposition if Navarro agreed to withdraw her request for jail time. The parties ultimately reached an agreement that was memorialized in the following order:
Relief is GRANTED by agreement on [Galan's] application for pre-trial writ of habeas corpus. [Galan] is in all things discharged from the show cause order of October 1, 2007, and the events and allegations contained therein. [Galan] shall appear, be sworn in and testify at his deposition on October 17th 2007 at 9 a.m. at the offices of Gray Becker, subject to any privileges asserted.
Galan contends in his brief that the order discharges him "not only from the October 2nd 2007 order . . . but from all previous orders of sanctions referenced in Navarro's Show Cause Order." His position seems to be that the order discharges all previous sanctions orders because the previous orders were referenced in and attached to the show-cause order. Thus, he appears to argue, when the trial court ordered that Galan be discharged from the show-cause order and all events and allegations contained in the order, the trial court was also discharging him from all the orders referenced in and attached to the order. However, such an interpretation is not consistent with the language of the order or what occurred at the hearing. The language of the order states that Galan was discharged from the show-cause order and its contents. The order states nothing about discharging previous orders imposing sanctions. In addition, at no time in the hearing did the trial court indicate that the agreement between the parties represented a discharge of all previous orders imposing sanctions. The trial court indicated only that the agreement would dispose of Galan's writ of habeas corpus and require him to appear for his deposition on October 17, 2007. Further, at the end of the hearing, the trial court stated that it was keeping "the pending motion for sanctions . . . under advisement until after the October 17 deposition." As quoted previously, the trial court also went on to state:
And I've said before and I've made rulings before about whether or not certain evidence is going to be able to be offered and certain people will be allowed to testify and so forth, depending on whether or not they give depositions and so on. And I'm not changing any of those rulings. I just want to keep my options open for further sanctions, if necessary, in the event that [Galan] does not cooperate on October 17th.
Because the record does not indicate that the October 15, 2007 order discharged Galan from all previous orders imposing sanctions, we reject Galan's argument.
Having rejected all of Galan's arguments regarding the trial court's imposition of the final sanctions, and considering Galan's repeated refusal to comply with court orders despite numerous threats of sanctions, opportunities to comply, and the imposition of lesser sanctions, we conclude that the trial court did not abuse its discretion in imposing the final sanctions. See Tex. R. Civ. P. 215.2(b); TransAmerican, 811 S.W.2d at 917; Cire, 134 S.W.3d at 838-39.
The dissent argues that the trial court failed to accord Galan due process by violating the principle that a Texas trial court may not divest a party of his or her separate property. See Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 139-40 (Tex. 1977). We note that the trial court acted upon Galan's separate-property claim, not upon property previously determined to be separate property. The rules of civil procedure specifically authorize a trial court to enter orders refusing to allow a party who has not complied with discovery requests or discovery orders to support a designated claim or prohibiting the party from introducing certain matters into evidence. See Tex.R. Civ. P. 215.2(b)(4). We also note that there are many instances in which a separate-property claim may be waived or barred without violating legal principles. See Knight v. Knight, 301 S.W.3d 723, 730 (Tex. App.-Houston [14th] 2009, no pet.) (separate-property claim waived by failure to object); Peck v. Peck, 172 S.W.3d 26, 31-32 (Tex. App.-Dallas 2005, pet. denied) (separate-property claim barred because of judicial admission); Dutton v. Dutton, 18 S.W.3d 849, 853 (Tex.App.-Eastland 2000, pet. denied) (same); Mathis v. Mathis, No. 04-95-00386-CV, 1996 Tex. App. LEXIS 5102, at *13 (Tex. App.-San Antonio Nov. 20, 1996, no writ) (not designated for publication) (separate-property claim waived by entering into agreed judgment).
Characterization of Marital Property
Galan asserts that the trial court erred in characterizing the marital estate as community property because there was no evidence, or insufficient evidence, that the estate was community property. Galan contends that Navarro "failed to meet her burden" of proving that the marital property "was not Galan's separate property." However, Navarro had no such burden. To the contrary, all property possessed by either spouse during or on dissolution of marriage in Texas is presumed to be community property. See Tex. Fam. Code Ann. § 3.003 (West 2006). To overcome the community-property presumption, the spouse attempting to do so must present clear and convincing evidence that the property is separate property. See id.; Boyd v. Boyd, 131 S.W.3d 605, 612 (Tex. App.-Fort Worth 2004, no pet.). We therefore review the trial court's characterization based on the clear and convincing evidence standard. See Tate v. Tate, 55 S.W.3d 1, 5 (Tex. App.-El Paso 2000, no pet.).
Here, based on sanctions that we have previously upheld in this opinion, Galan was prohibited from offering any evidence showing that any of the property involved in the divorce was his separate property. Because we have upheld the sanctions, we will not consider any of the offers of proof Galan made as to his separate-property claims. Despite the ban on evidence of his separate-property claims, however, Galan contends that he established that much of the property involved in the divorce was his separate property based on evidence that was not excluded by the ban: specifically, portions of the petition for divorce that Navarro initially filed in Mexico in 2003 and portions of Navarro's testimony at trial. Galan quotes several parts of Navarro's Mexico petition in which she stated that she was married "under the regime of separate property" and that Galan was the owner of the assets the couple acquired during their marriage. At trial, Galan's counsel asked Navarro to confirm that she made the statements in the Mexico petition, and she confirmed that she made each statement. The following exchange then occurred:
Galan's Counsel: As to what is listed in the petition, as to those items, is it your understanding that at the time of the filing of the divorce petition all the items that we have described belonged to [Galan]?
Navarro: Yes.
Galan contends that the statements in Navarro's Mexico petition and the statements she made at trial establish by clear and convincing evidence that the property involved in the divorce was his separate property. We disagree.
In order to prove certain assets are separate property, a spouse must trace and clearly identify the property claimed to be separate. See McKinley v. McKinley, 496 S.W.2d 540, 543 (Tex. 1973); Zagorski v. Zagorski, 116 S.W.3d 309, 316 (Tex. App.-Houston [14th] 2003, pet. denied). "Tracing involves establishing the separate origin of the property through evidence showing the time and means by which the spouse originally obtained possession of the property." Zagorski, 116 S.W.3d at 316; In re Parker, 997 S.W.2d 833, 837 (Tex. App.-Texarkana 1999, pet. denied). Here, Galan has established only that Navarro stated that she and Galan were married under a separate-property regime in Mexico and that at the time she filed a divorce petition in Mexico in 2003, she felt that all of the property acquired during the marriage was "owned" by Galan and "belonged" to him. Galan points to no evidence admitted at trial establishing what a "separate-property regime" means under Mexican law. He also points to no evidence tracing the origins of each piece of property. Rather, he contends that Navarro's statements in her Mexico petition were judicial admissions that the property was Galan's separate property. A judicial admission is an assertion of fact, not pled in the alternative, in the live pleadings of a party. See Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001). However, the pleading that Galan refers to is a petition from a divorce suit in Mexico in which the Mexico court determined that Navarro was not entitled to a divorce. Galan does not cite to, nor have we found, any legal authority establishing that a foreign pleading in a divorce suit that was resolved without granting a divorce constitutes a live pleading in a Texas case.
Galan also raises an estoppel argument regarding the Mexico petition in his reply brief. However, we do not consider the argument because he did not raise the issue in his brief, nor was the issue raised in Navarro's brief. See Tex. R. App. P. 38.3 ("The appellant may file a reply brief addressing any matter in the appellee's brief.").
Considering the lack of evidence in the record to rebut the community-property presumption, we conclude that Galan did not prove by clear and convincing evidence that the property involved in the divorce was his separate property. Accordingly, the trial court did not abuse its discretion in characterizing the property as community property.
Sufficiency of Evidence Supporting Findings of Fact
Galan challenges fifty-three of the trial court's findings of fact and argues that the trial court erred in denying his request for findings of fact and conclusions of law regarding the characterization and value of the separate property of Galan and Navarro. Forty-three of the challenged findings relate to Galan's failure to respond to discovery requests or pay monetary sanctions. Galan makes the following one-sentence argument regarding the findings: "Those matters all dealt with specific discovery disputes over which [Judge Byrne] did not preside and which involved matters not considered at the pretrial or trial of the case." However, like the first time Galan made this argument in this appeal, he does not cite to, and we have not found, any legal authority supporting the proposition that a district judge operating within a centralized, rotating docket system cannot issue findings of fact based on the entire case if she did not preside over every hearing in the case. Further, Galan specifically requested on April 30, 2007, that the trial court take judicial notice of adjudicative facts in the case, including all documents presently in the court's file, all documents that would later become part of the court's file, and all findings of fact and conclusions of law that were issued in any orders or judgments in the case. Galan made the same request — specifically, that the trial court "take judicial notice of its file" — at a pretrial hearing on November 5, 2007, and the trial court stated that it would "be happy to take judicial notice of those court orders in its file." Because we find no support for Galan's position, we reject his argument.
Galan states in his brief that he is challenging various findings of fact and conclusions of law, but he lists only findings of fact in his argument.
Galan raises this argument a third time as a separate issue in his brief. In the issue, he makes the same argument he did in the issue challenging the sanctions that prohibited him from offering evidence as to his separate-property claims. He argues that Judge Byrne erred in imposing the sanctions and issuing findings of fact in support of the sanctions because she had not presided over all the previous pre-trial hearings. In support of his argument, Galan cites rules and cases involving the authority of a newly assigned judge to act on motions or judgments that are pending due to the expiration of a previous judge's term or due to a previous judge's death, resignation, or disability. He also cites a case in which the appellate court vacated a judgment because a judge signed the judgment without hearing any of the evidence in the case. See W.C. Banks, Inc. v. Team, Inc., 783 S.W.2d 783, 785-86 (Tex. App.-Houston [1st] 1999, no writ).
We do not address this argument as a separate issue because we have already addressed it twice in the opinion. However, we note that the authorities cited by Galan are distinguishable from this case. Specifically, this case does not involve a judge who was assigned to a pending case because another judge's term had expired or because another judge died, resigned, or became disabled. This case also does not involve a judge who signed a final judgment after a trial but had not heard any evidence in the case. Judge Byrne presided at a pre-trial hearing and at trial and took judicial notice of all matters in the case file. In addition, and as we have previously stated, this case involves a centralized, rotating docket system in which various district judges preside over numerous hearings and trials. Galan does not cite to any legal authority in support of his claim that a district judge in such a system cannot rule on ongoing issues unless she has directly heard all of the evidence presented in previous hearings held by other judges. Accordingly, we again reject this argument.
For another of the challenged findings — specifically, the finding that Navarro satisfied the residence and domiciliary requirements necessary to bring a divorce suit in Texas — Galan refers to his arguments in support of his first issue challenging the trial court's denial of his plea in abatement. Because we have already overruled that issue, we affirm the trial court's findings with respect to the issue. Similarly, for another subset of the challenged findings — those regarding Galan's failure to appear for depositions on three separate occasions — Galan refers to his arguments in support of his third issue challenging the trial court's imposition of sanctions prohibiting Galan from offering evidence regarding his separate-property claims. Because we have previously upheld the sanctions, we affirm the trial court's findings with respect to that issue.
Regarding the remaining four challenged findings of fact, Galan provides only a one-sentence argument and fails to cite to any legal authority. Accordingly, we conclude that he has waived the arguments. See Taylor v. State, 293 S.W.3d 913, 917 (Tex. App.-Austin 2009, no pet.) ("Brief, conclusory statements, unsupported by legal citations, are insufficient to sustain an appellant's complaint."); see also Tex. R. App. P. 38.1(i) (requiring briefs to contain clear and concise argument for contentions made and appropriate citations to authorities and record).
Galan also contends that the trial court erred in denying his request for findings of fact and conclusions of law regarding "the characterization and value" of his and Navarro's separate property. However, the trial court did not issue findings of fact and conclusions of law regarding the separate property of Galan and Navarro because the trial court determined that all of the property was community property. Galan was prohibited from offering any evidence regarding his separate-property claims, and Navarro did not make any separate-property claims. Because the trial court treated all the property as community property and there was no evidence of separate property, we reject Galan's argument.
CONCLUSION
Having overruled each of Galan's issues, we affirm the trial court's judgment.
JOHN F. ONION, JR., Justice.
DISSENTING OPINION
I respectfully dissent. This divorce action was a non-jury three-witness trial-by-sanction involving two Mexican natives and nationals with an "estate" of $6,580,145. The case-determining sanction suppressed proof and prevented Galan from showing by clear and convincing evidence that the bulk of the property in question was his separate property. See Tex. Fam. Code Ann. § 3.003 (West 2006). The discovery sanction prohibited Galan from offering evidence of any affirmative claim including evidence of his claim of separate property, which he asserted that he had inherited from his father and later from his mother. The "death penalty" sanction prevented Galan from cross-examining Navarro about her characterization of the property during her trial testimony, or to impeach her. In his trial testimony Galan was not permitted to explain how he had acquired the property involved.
Navarro's trial testimony that all the property was community property was meager, vague, or in answer to a leading question. The record shows that in her earlier unsuccessful Mexican divorce action her petition listed the bulk of the property as Galan's separate property, and she requested thirty percent of his separate property under Mexican law. Based upon the enforced sanction, Galan was prevented from offering evidence as to the merits of his separate property claims. The trial court here found all the property to be community property. The trial court awarded Navarro 62 ½ percent of the property and gave to Galan 37 ½ percent. The trial court ordered Galan to pay 62 ½ percent of Navarro's attorney's fees and to withdraw $550,000 out of one fund awarded to Galan to pay $214,000 towards the total fee.
A trial court has wide discretion to employ discovery sanctions to ensure compliance with the discovery rules, to deter would-be violators, and to punish violators. Chrysler Corp. v. Blackmon, 845 S.W.2d 844, 850 (Tex. 1992). Sanctions must be "just" under the circumstances. In re Ford Motor Co., 988 S.W.2d 714, 718 (Tex. 1998); Kulge v. Daimiber Chrysler Corp., 88 S.W.3d 355, 369 (Tex. App.-San Antonio 2007, pet. denied). We review the trial court's imposition of discovery sanctions for an abuse of discretion. Transamerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 918 (Tex. 1991); Kugle, 88 S.W.3d at 364. In general, a trial court abuses its discretion when it acts without reference to any guiding rules or principles, i.e., when its acts arbitrarily or unreasonably. Warford v. Stomper, 801 S.W.2d 108, 109 (Tex. 1990); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). In such a review, we look at the entire record. See Daniel v. Kelley Oil Corp., 981 S.W.2d 230, 234 (Tex. App.-Houston [1st] 1998, pet. denied).
In discovery sanction cases, it must be remembered that a trial court's discretion is limited by the requirements of rule 215 that the sanction be "just." Tex. R. Civ. P. 215.2(b). Independently, that discretion is also limited by constitutional due process. Transamerican, 811 S.W.2d at 918-19. An order imposing discovery sanctions may be reversed for an abuse of discretion, even if the findings and evidence support it. Kugle, 88 S.W.3d at 364.
Discovery sanctions imposed under rule 215.2(b)(2) must be "just" and are measured by two factors. In re Ford Motor Co., 988 S.W.2d at 718. First, we consider whether there is a direct relationship between the offensive conduct and the sanction. Transamerican, 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." Id. It also means that the trial court must attempt to determine if the offensive conduct is attributable to the party, the attorney, or to both. Id. A party should not be punished for his counsel's conduct where the party is not implicated apart from having instructed to counsel its legal representation. Second, a "just" sanction must not be excessive. Id. The punishment should fit the crime. Id. A sanction should be no more severe than necessary to satisfy its legitimate purpose. Id. Trial courts may consider lesser sanctions to promote compliance. These standards set the permissible bounds of rule 215 within which the trial court may exercise sound discretion. Id. When more severe or "death penalty" sanctions for discovery abuse are imposed, these standards as well as constitutional due process apply. Id. at 918.
The sanction here imposed on Galan violated the standards relating to rule 215 and constitutional due process when the sanction adjudicated Galan's claims to his separate property without regard for the merits of Galan's claims. In order not to elongate this dissent, I will focus on the due process violation. The sanction should not and could not, in my opinion, have been used in this divorce case, for the trial court was without legal authority to do so.
Section 7.001 of the family code provides that a divorce decree "shall order the division of the estate of the parties in a manner that the court deems just and right." Tex. Fam. Code Ann. § 7.001 (West 2006). The "estate of the parties" has been construed to mean only the parties' community property. See Cameron v. Cameron, 641 S.W.2d 210, 213-14 (Tex. 1982); Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 139 (Tex. 1977). Property is characterized as "separate" or "community" at the time of reception of title. See Strong v. Garrett, 224 S.W.2d 471, 474 (Tex. 1949); Wilkerson v. Wilkerson, 992 S.W.2d 719, 722 (Tex. App.-Austin 1999, no pet.). A spouse's separate property is statutorily defined in section 3.001 of the family code and includes inter alia, "the property acquired by the spouse during marriage by gift, demise, or decent." Tex. Fam. Code Ann. § 3.001(2) (West 2006); see also Tex. Const. art. 16, § 15. "Community property consists of the property, other than separate property acquired by either spouse during marriage." Tex. Fam. Code Ann. § 3.002 (West 2006). The degree of proof to establish that property is separate property is by clear and convincing evidence. Id. § 3.003(b). There is a rebuttable presumption that all property acquired during marriage is community property. Id. § 3.003.
In considering a division of the property by divorce decree, it is well settled as a constitutional matter that a Texas trial court may not divest a party of his or her separate property. Cameron, 641 S.W.2d at 220; Eggemeyer, 554 S.W.2d at 162; Wilkerson, 992 S.W.2d at 722. If the trial court is without authority to divest a spouse of his or her separate property, may a discovery sanction be utilized to give the trial court the authority to prohibit a spouse from making proof of his or her separate property claim? May the trial court adjudicate the merits of the claim by sanction without a hearing or opportunity to supply the necessary proof? The trial court cannot do indirectly what it is forbidden to do directly. The trial court's action here failed to accord Galan due process and resulted in an unfair trial. The trial court, in my opinion, clearly abused its discretion.
I do not condone Galan's conduct, but some of the offensive conduct should have been attributable to Galan's trial counsel. The trial court made no attempt to determine if counsel was at fault. See Transamerican, 811 S.W.2d at 917. Neither do I condone the actions of Navarro and her attorneys. It is clear from the record that they used the discovery rules to harass the 80-year-old Galan. They knew that he lived in San Luis Potosi and had to constantly travel to meet all the pretrial hearings concerning taxes, mortgages, or support payments. It is obvious from the beginning they consistently urged the various trial courts hearing the case to sanction Galan and prevent him from being able to prove his claims to separate property. They obtained sanctions to prevent him from discovery, from using documents in support of his separate property claims, prohibiting him from calling expert witnesses concerning the Mexican-held property and Mexican law, preventing him from offering evidence about separate property, and finally, preventing him from offering evidence in support of any affirmative claim including his separate property claim. They knew that the sanctions requested would prevent proper proof of any separate property claim. Navarro testified that she married Galan in Mexico on October 23, 1950, under the regime of separate property. Further, in her 2003 Mexican divorce petition, she asked for thirty percent of Galan's separate property and listed in great detail and description each piece of property acquired by Galan, when acquired and from whom, bank accounts opened by Galan, and other information about other assets. Navarro had a vast knowledge of the property involved in this lawsuit. All this same property became "community property" by her trial testimony. The record shows that Navarro had separate property including investments in Asia, Europe, and the United States, had a financial advisor, and had traveled in Europe on her own money. This separate property was involved in the instant judgment.
For example, on September 27, 2007, Judge Livingston ordered Galan to appear for a deposition on October 2, 2007, in the office of Navarro's attorneys and "carried" the case until then. Navarro's attorneys obtained a show cause order from another district judge why Galan should not be held in contempt for violation of other orders. The 80-year-old Galan, who was not in goodhealth, traveled from San Luis Potosi in Mexico, to Austin, Texas, for the deposition. Galan and his attorney arrived at the law office of Navarro's attorney on October 2, 2007. Galan was immediately confronted by a process server who served Galan with the show cause order. This upset Galan. As the record shows, Galan's attorney advised Galan to take the Fifth Amendment to the United States Constitution. Galan did so generally and then left the law office. There is nothing to show that this Mexican citizen was a student of the United States Constitution. He simply followed his attorney's advice.
On November 5, 2007, when the case was before Judge Byrne for the first time, Galan's attorney agreed that he had advised his client as to what action to take on October 2, 2007. It was pointed out to counsel that the Fifth Amendment could not be applied and exercised in the manner he had recommended to Galan. He was not convinced but agreed it was his fault the advice was given. Judge Byrne, after the fact, explained to Galan personally how the Fifth Amendment might have been exercised during the deposition in answer to certain questions. Nevertheless, Judge Byrne imposed no sanction on counsel but imposed the ultimate sanction on Galan finding, under the circumstances, that Galan did not appear for the deposition at all.
The only basis for the sanction as orally announced from the bench on November 5, 2007, was Galan's failure to appear and answer questions at a deposition on October 2, 2007. Immediately after the oral pronouncement in open court, Judge Byrne added: "So now that takes the issue of separate property away."
On November 16, 2007, after trial, a written order was entered listing seven reasons for the severe ultimate sanction. No sanction was ever imposed on Galan's counsel.
I vigorously dissent to the affirmance of the instant judgment. I would sustain appellant Galan's second point of error or issue (relabeled as third issue by the majority) that the trial court erred in imposing the death penalty sanction prohibiting Galan from presenting any evidence in support of any affirmative claim involving his claim to his separate property. The trial court abused its discretion in imposing a discovery sanction that adjudicated the merits of the case in violation of constitutional due process.
The majority opinion divides Galan's general argument into several categories but overlooks the particular argument upon which I rely. In his brief, appellant Galan in his second issue argues that constitutional due process was violated by the imposition of the sanction imposed on November 5, 2007. He cites Response Time, Inc. v. Sterling, 95 S.W.3d 656, 660(Tex. App.-Dallas 2002, no pet.), and Kurgle v. Daimber Chrysler Corp., 88 S.W.3d 355, 361-67(Tex. App.-San Antonio 2002, pet. denied). Galan added to his brief: "In the instant case, there is no question that the litigation revolves not around the issue of divorce, but the question of whether or not Navarro could possess herself of Galan's separate property. The whole focus of Navarro's strategy was to prevent the case from being tried on the merits with regard to the issue of Galan's separate property."
I would reverse the judgment and remand to the trial court for a fair and just trial.