Joseph Pressil v. Jason A. Gibson, Jason A. Gibson, P.C. D/B/A the Gibson Law Firm , 558 S.W.3d 349 ( 2018 )

Affirmed and Opinion filed August 28, 2018.
In The
Fourteenth Court of Appeals
NO. 14-17-00517-CV
JOSEPH PRESSIL, Appellant
V.
JASON A. GIBSON AND JASON A. GIBSON, P.C. D/B/A THE GIBSON
LAW FIRM, Appellees
On Appeal from the 55th District Court
Harris County, Texas
Trial Court Cause No. 2013-51350
OPINION
In this breach-of-fiduciary-duty case, plaintiff Joseph Pressil sued his former
attorney and the attorney’s law firm, alleging that the publicity the attorney garnered
for Pressil’s underlying health-care-liability claim caused Pressil to suffer mental
anguish and to lose a potentially lucrative employment opportunity. After finding
that Pressil fabricated evidence in support of his economic damages, the trial court
struck Pressil’s pleadings and rendered a take-nothing judgment against him. We
affirm.
I. BACKGROUND
About four years after his twin sons were born, Pressil discovered a 2007
receipt from a medical laboratory for cryopreservation of a sperm sample. Although
Pressil had not sought such services, the receipt listed Pressil as the patient. On
further investigation, Pressil learned that the lab is associated with a fertility clinic,
and that Pressil’s former girlfriend had conceived the twins through in vitro
fertilization.
A. The Fertility Lawsuit
Pressil contacted attorney Jason A. Gibson at the Gibson Law Firm
(collectively, “Gibson”) in early November 2011 to represent him in suing the clinic
for performing the fertilization procedure without Pressil’s knowledge or consent.
We refer to that case as “the Fertility Lawsuit.” According to Pressil, Gibson knew
that the claims against the clinic were devoid of merit, but that the facts of the case
would garner media attention. Pressil contends that Gibson coerced him into giving
interviews with various news outlets by telling Pressil that the publicity would force
the clinic to settle the case. Pressil states that Gibson also disclosed confidential
information without Pressil’s consent and sometimes in contravention of Pressil’s
express instructions. He alleges that Gibson’s disclosure of confidential information
to the press and the resultant “extensive media blitz” caused Pressil to lose an
employment opportunity and to suffer mental anguish and emotional distress.
The fertility clinic did not settle with Pressil, and Pressil’s claims were
dismissed with prejudice for failure to provide an expert report.
2
B. The Professional-Negligence Lawsuit
After the Fertility Lawsuit was dismissed, Pressil sued Gibson and two other
attorneys of the Gibson Law Firm for professional negligence, gross negligence, and
breach of fiduciary duty. See Pressil v. Gibson, 477 S.W.3d 402, 405–06 (Tex.
App.—Houston [14th Dist.] 2015, pet. denied) (“Pressil I”). The trial court rendered
summary judgment against Pressil on his negligence claims on the ground, among
others, that Pressil sustained no recoverable damages. The trial court then severed
the breach-of-fiduciary-duty claim from the negligence suit, see id. at 405, 408, and
Pressil unsuccessfully appealed the summary judgment against him on his
negligence claims. See id. at 411.
C. The Breach-of-Fiduciary-Duty Lawsuit
The present case is the breach-of-fiduciary-duty claim that was severed from
the professional-negligence lawsuit.
Pressil alleges that in November 2011, he had applied and interviewed for a
position as project manager for Genrus Corp., Inc., but that the negative publicity
from the Fertility Lawsuit caused Genrus to withdraw Pressil from consideration.
He pleaded that these pecuniary losses were between $500,000 and $1,000,000. He
additionally sought mental-anguish and exemplary damages.
D. The Sanctions
Pressil’s claim for economic damages centers on three documents attributed
to Pressil or to Genrus employee Nigel Marcellin, and to Pressil’s and Marcellin’s
sworn statements and testimony about the documents and the representations they
contain. These documents form the core of Pressil’s claim that Gibson’s actions in
publicizing the facts of the Fertility Lawsuit cost Pressil a job as a project manager
at Genrus where Pressil would have earned $2,500 per week.
3
The trial court found that one of the documents was fabricated, and that
Pressil’s attempt to explain away the fabrication—particularly when coupled with a
second document—“def[ied] credibility.” The trial court concluded that merely
striking the evidence would be an insufficient sanction, because that would deprive
Gibson of the opportunity to use the fabricated evidence to impeach Pressil’s
credibility and would simply restore Pressil to the same position he would have
occupied had he not fabricated evidence in the first place. The trial court therefore
struck Pressil’s pleadings and rendered a take-nothing judgment against him.
On appeal, Pressil argues that the trial court abused its discretion in imposing
death-penalty sanctions because (1) there was no evidence or finding that the
evidence was intentionally fabricated for the purposes of litigation rather than
recreated for a legitimate purpose, (2) the trial court failed to adequately consider
lesser sanctions that would have sufficed, and (3) the fabricated document was
unrelated to the core elements of Pressil’s breach-of-fiduciary-duty claim.1
II. SANCTIONS STANDARDS
We review a sanctions order for abuse of discretion. Unifund CCR Partners
v. Villa, 299 S.W.3d 92, 97 (Tex. 2009) (per curiam). A trial court abuses its
discretion if the sanction is not supported by some evidence or is contrary to the only
permissible view of properly admitted, probative evidence. See id. (citing In re
Barber, 982 S.W.2d 364, 366 (Tex. 1998) (orig. proceeding)). In the sanctions
context, the trial court is the factfinder and determines the witnesses’ credibility and
the weight to be given to their testimony. See Davis v. Farias Enters. Ltd., No. 14-
14-00016-CV, 2015 WL 509514, *3 (Tex. App.—San Antonio Feb. 4, 2015, no pet.)
(mem. op.); Westview Drive Invs., LLC v. Landmark Am. Ins. Co., 522 S.W.3d 583,
1
We have reordered Pressil’s issues.
4
615 (Tex. App.—Houston [14th Dist.] 2017, pets. denied) (citing Sterns v. Martens,
476 S.W.3d 541, 556 (Tex. App.—Houston [14th Dist.] 2015, no pet.)). We will
reverse the sanctions order only if the trial court acted without reference to any
guiding rules and principles, such that its ruling was arbitrary or unreasonable.
Unifund, 299 S.W.3d at 97. If the trial court does not make formal findings, we may
consider the factual findings stated in the trial court’s order or judgment. See
Mumma v. Aguirre, 364 S.W.2d 220, 221 (Tex. 1963); Monroe v. Grider, 884
S.W.2d 811, 816 (Tex. App.—Dallas 1994, writ denied). We are not bound in our
analysis by the trial court’s findings of fact and conclusions of law, and we instead
independently review the entire record to determine whether the trial court abused
its discretion. Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006)
(per curiam).
The rules governing discovery sanctions specify that such sanctions must be
just. TEX. R. CIV. P. 215.2(b)(2); TEX. R. CIV. P. 213. A sanction is “just” if there
is a direct relationship between the offensive conduct and the sanction, and the
sanction is not excessive. TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d
913, 917 (Tex. 1991) (orig. proceeding).
The direct-relationship requirement is satisfied if the sanction is directed
(1) against the abuse; (2) toward remedying the prejudice caused to the innocent
party; and (3) against the offender, whether that be a party, counsel, or both. Id.
Regarding excessiveness, a discovery sanction should be no more severe than
necessary to satisfy one of its legitimate purposes. Id. at 914–18. Those purposes
are (1) to secure the parties’ compliance with the discovery rules, (2) to deter other
litigants from violating the discovery rules, (3) to punish violators, and (4) to
compensate the aggrieved party for expenses incurred. CHRISTUS Health Gulf
Coast v. Carswell, 505 S.W.3d 528, 540 (Tex. 2016) (purpose 4); Bodnow Corp. v.
5
City of Hondo, 721 S.W.2d 839, 840 (Tex. 1986) (per curiam) (purposes 1–3).
Courts therefore must consider whether any available lesser sanctions, individually
or in combination, would serve these ends. See TransAmerican, 811 S.W.2d at 918.
In all but the most egregious and exceptional cases, a trial court must impose lesser
sanctions before resorting to case-determinative ones. Cire v. Cummings, 134
S.W.3d 835, 839 (Tex. 2004). Case-determinative discovery sanctions should not
be used unless the misconduct justifies a presumption that the party’s claims or
defenses lack merit. TransAmerican, 811 S.W.3d at 918. To guard against excessive
sanctions, the trial court must offer a reasoned explanation for the sanction imposed.
Cire, 134 S.W.3d at 840.
III. PRESSIL’S SANCTIONABLE CONDUCT
In his first issue, Pressil asserts that there is no evidence or finding that a
document was intentionally fabricated for purposes of litigation rather than recreated
for a legitimate purpose. We disagree. The trial court sanctioned Pressil for
“manufacturing evidence related to damages,” and the evidence supports that
finding.
Pressil’s claim for economic damages relies on three documents. The first
document is “the Pressil Letter,” which is represented to be a letter from Pressil
applying for a position with Genrus as a project manager. It is unsigned, undated,
and unaddressed. The second document is “the Marcellin Letter,” which is
purported to be a letter from Nigel Marcellin at Genrus informing Pressil that he will
not be considered for a position “due to [the] high level of publicity exhibited
through various media publications regarding yourself.” It is unsigned and
unaddressed. The third document is a completed federal employment-eligibility
verification form known as “Form I-9.” The form must be signed under penalty of
perjury by both the employee and the employer’s authorized representative. Pressil
6
and Marcellin each signed the Form I-9 produced in this case, and each dated the
document November 17, 2011. Although the trial court sanctioned Pressil only for
manufacturing Form I-9, the trial court found that both Form I-9 and the Marcellin
Letter “defy credibility.”
A. The Evidence Regarding Form I-9
As Gibson pointed out in the trial court, the federal government provides
instructions on the use of Form I-9 on the U.S. Citizen and Immigration Services
webpage, “Which Form I-9 Should I Use?”2 There it is stated, “To determine
whether you are using the correct version of Form I-9, look at the revision date
printed on the bottom left corner of the form . . . .”
At his deposition, Pressil was shown the signed Form I-9. He agreed that
 the signed document is the form he completed when Marcellin interviewed
him at Genrus;
 the interview took place on November 17, 2011;
 the form is dated November 17, 2011;
 the date is written in Pressil’s handwriting;
 he has not seen the document since he completed it in November 2011;
 he did not “go back and create this document later”; and
 if the document “wasn’t actually written in 2011 but it was created [at] some
point after that time, then this entry is false.”
Gibson’s counsel then drew Pressil’s attention to the bottom left corner of the
Form I-9. The revision date printed there is “03/08/13.”
2
https://www.uscis.gov/i-9-central/complete-correct-form-i-9/which-form-i-9-should-i-
use, (last visited August 22, 2018).
7
Pressil agreed that the signed Form I-9 is a 2013 version of the form. When
asked at his deposition to explain how he came to write a 2011 date on a 2013 form,
Pressil answered, “I don’t know.” Gibson’s counsel posed different variations of the
question, and Pressil testified at least four times that he did not know how to explain
how he came to write a 2011 date on a form that was not created until 2013.
After Gibson moved for sanctions, however, Pressil found that he did know
how to explain it. He submitted a declaration under penalty of perjury in which he
stated,
[S]ometime in 2013, I was at a job site working as a construction
manager for another company. Genrus was one of the contractors
working on the job site at that time. One of the project managers
employed by Genrus approached me and handed me another I-9 form
to fill out. I do not remember his name. I was instructed to use the
same date as the original I-9 form I filled out during my interview in
November of 2011 to accurately reflect the original document which
was apparently lost by Genrus. The questions being asked to me in the
deposition concerning the I-9 form were confusing and argumentative.
I tried to explain myself the best I could but apparently the testimony
was unclear. To be clear, I have not forged or fabricated any documents
in this case. And, I have not given any false testimony in this case.
Other evidence, however, cannot be reconciled with this version of events.
Pressil stated that he does not remember who approached him at the job site in 2013,
and Marcellin similarly testified that he does not remember who this person was, but
the form itself identifies Marcellin as the person who reviewed the driver’s license
that Pressil produced to prove his statement in the form that he is a United States
citizen. In the form, Marcellin also identified his title as “project manager,” but by
2013 Marcellin’s title was “president.” Fourth, Marcellin wrote on the form
Genrus’s address in Jamaica, New York. Although that was Genrus’s address in
2011, the company relocated to St. Albans in 2012. The Form I-9 was manifestly
intended to be passed off as having been completed in 2011.
8
In his deposition, Marcellin attempted to explain these facts. According to
Marcellin, Pressil completed the Form I-9 at his job interview in November 2011,
but the form was lost when Genrus moved its offices in 2012. Marcellin claimed
that he instructed Genrus’s staff to go through all of the files and recreate missing
documents. He stated that he “wanted to keep a record of all employees or
prospective employees, in the event anything were to change in the future, I could
always have a conduit through either them or their network.” But if Marcellin
merely wanted to ensure he could contact Pressil in the future, he would have asked
for Pressil’s information as of 2013, not as of November 2011. Moreover, there
would have been no need for Marcellin to backdate the document, to provide an
inaccurate address for Genrus, or to identify himself by a superseded job title—all
under penalty of perjury. Further still, when Marcellin produced the Form I-9 in
response to a deposition on written questions, he attested that the record was made
“at or near the time of the act, event, or condition recorded, or reasonably soon
thereafter.” That attestation is inconsistent with his later deposition testimony and
with Pressil’s declaration that the form dated 2011 was completed in 2013.
Even Pressil’s counsel agreed with the trial court that the version of events in
which Pressil was asked to complete the Form I-9 at a job site in 2013 “doesn’t make
sense.”
B. The Marcellin Letter
In considering whether to sanction Pressil, the trial court relied not only on
the Form I-9, but also on the unsigned, unaddressed Marcellin Letter. The most
pertinent part of the Marcellin Letter is the following passage:
Although we view you as a viable candidate for this position being
offered which as discussed, carries a weekly salary of $2,500.00/week,
unfortunately due to [the] high level of publicity exhibited through
various media publications regarding yourself which was disclosed by
9
our HR department, and the high profile nature of the apparent
situation(s) at hand, we regret to inform you we are unable to further
pursue the employment screening and interview process which has
already commenced.
Although the letter is dated December 1, 2011, it is printed on Genrus’s
letterhead—which includes Genrus’s post-2012 address in St. Albans, New York,
rather than its 2011 address in Jamaica, New York. In his deposition, Marcellin
attempted to explain the discrepancy with the same explanation rejected by the trial
court in connection with the Form I-9, that is, he claimed that the letterhead was
changed as part of “updating the files.” But as with the Form I-9, the Marcellin
Letter’s form—the letterhead—was created after the date placed on the document.
C. The Trial Court’s Assessment of the Evidence
According to Pressil, “The allegedly fabricated document, the I-9 employment
form, was recreated from an original for a legitimate purpose unrelated to litigation.
The trial court recognized this fact, considered it as true and admitted that no fraud
had occurred.”3
The italicized sentence is a gross misrepresentation of the record. In the page
of the record Pressil cites as support for this statement, the trial court was not making
findings of fact or conclusions of law; it was summarizing Pressil’s version of
events. The trial court said, “[W]hat he said was, But I—I also did one in 2011. It’s
not—fraud per s[e], because I’m just recreating a document that existed before and
something.” The trial court stated at the outset of the sanctions hearing that “for the
purposes of our conversation here,” the trial court would take Pressil at his word as
to the occurrence of events, but “that’s still pretty bad behavior.”
The trial court in its order, however, viewed the evidence thusly:
3
Appellant’s Br. at 19.
10
Plaintiff offers no credible reason, and none comes to mind, why
a company which had turned him down two years prior would care to
re-create an I-9 form, or would even notice that it was gone, or how it
would remember Plaintiff specifically to then somehow go find him.
Nor does Plaintiff state why he would so willing[ly] agree to provide
some stranger who walked up to him at a job site with his Social
Security number and other identifying information as he recreated the
lost I-9. The Court’s discomfort with the scenario painted by Plaintiff
is compounded when considering Plaintiff’s proffer of an unsigned
letter from Genrus in which Plaintiff’s job application is declined, then
oddly lays out the salary he would have received had he been employed
and conveniently identifies Defendants’ conduct as leading to the
decision not to employ. The circumstances, as a whole, defy
credibility.4
This Court makes no finding, and is not required to determine,
whether Plaintiff really had filled out an I-9 back in 2011. The Court
is responding to the admission that the I-9 present in this case is a post-
event fabrication which was passed off by Plaintiff as genuine until he
got caught.
The trial court did not find that Pressil “recreated” the I-9, it found that Pressil
“manufactured” it.
The trial court did not “admit that no fraud had occurred”; to the contrary, the
trial court stated in the sanctions order that “no lesser sanction is entered because
any lesser sanction simply leaves Plaintiff where he was had he not attempted this
fraud.”5 The trial court further explained that striking “all evidence related to the
job application at Genrus[] would deprive Defendant of the opportunity to use the
manufactured I-9 as a means of exposing Plaintiff’s fraud.”6
4
Emphasis added.
5
Emphasis added.
6
Emphasis added.
11
The trial court did not fail to find “that a document was intentionally
fabricated for purposes of litigation.” The trial court found that Pressil was “caught
manufacturing evidence related to damages.”
The evidence we have recounted amply supports these findings. Although
Pressil’s appellate argument assumes that the trial court did, or must, accept his
explanation for the back-dated document, the trial court was well within its
discretion in finding that the documents on which Pressil relied and the explanations
offered for their discrepancies “defy credibility.”
We overrule Pressil’s first issue, and we hold that the trial court did not abuse
its discretion in determining that Pressil’s conduct merited sanctions.
IV. APPROPRIATENESS OF DEATH-PENALTY SANCTIONS
Pressil’s second and third issues both are directed to the propriety of death-
penalty sanctions for his misconduct. He contends that the sanctions of striking his
pleadings and rendering a take-nothing judgment against him are excessive because
(a) the trial court failed to adequately consider lesser sanctions and to offer a
reasoned explanation for the sanction imposed, and (b) the fabricated evidence is not
related to the “core elements” of his claim.
A. The Trial Court’s Consideration of Lesser Sanctions and Reasoned
Explanation for Death-Penalty Sanctions
The trial court stated in its sanctions order that, in arriving at the appropriate
response, the case it found particularly persuasive was Daniel v. Kelley Oil Corp.,
981 S.W.2d 230, 235 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) (op. on
reh’g en banc). Like this case, Daniel involved fabrication of evidence. See id. at
234.
In Daniel, plaintiff Reba Daniel sued her employer for sexual harassment,
discrimination, and retaliation. Id. at 231. In support of her claims, Daniel had
12
audiotaped a conversation between herself and David Kelley, see id., but the tape
recording she produced had been altered. Id. at 234. The trial court sanctioned
Daniel by striking her pleadings and rendering a take-nothing judgment against her,
and the appellate court affirmed the judgment. Id. at 235–36.
In rejecting Daniel’s appellate argument that lesser sanctions were available,
the First Court of Appeals stated as follows:
Exclusion of the tape would have been ineffective as punishment. True,
it would have deprived her of evidence authenticating her claim. But
exclusion would merely have placed her in the same position she had
been in before she manufactured the tape. And she was still left with
her own testimony and two other confirming tape recorded
conversations with third parties. Moreover, appellees might have
wanted to introduce the tainted tape in order to impeach the very fabric
of Daniel’s veracity. The more punitive sanction of refusing to allow
Daniel to testify would have had essentially the same consequence as
the one about which she complains: she could not have established her
case without her own testimony.
One of the purposes of discovery sanctions is to punish those
who violate the rules of discovery. . . . An act so destructive of the
integrity of our judicial process, such as the fabrication of physical
evidence, deserves serious punishment. Such intentionally egregious
behavior warrants punishment that places the guilty party in a worse
position than that from which she began.
Id. at 235.
The Daniel court further explained that “[t]he very act of fabricating evidence
strongly suggests that a party has no legitimate evidence to support her claims.
Clearly, a presumption arises therefrom that her claims have no merit. Meritless
claims impose a terrible hardship on opponents, and it is unjust to allow such claims
to be presented.” Id.
In reviewing the death-penalty sanctions in Daniel, our sister court stated that
the case was controlled by its own precedent in Vaughn v. Texas Employment
13
Commission, 792 S.W.2d 139 (Tex. App.—Houston [1st Dist.] 1990, no writ.). See
Daniel, 981 S.W.2d at 235–36. In Vaughn, Zelda Vaughn sued her former employer
and former supervisors for wrongful termination and defamation; she also sued the
Texas Employment Commission (“TEC”) for wrongful denial of unemployment
benefits, and the trial court severed her claim against the TEC into a separate action.
See Vaughn, 792 S.W.2d at 140. In support of her defamation claim in the remaining
action, Vaughn produced three documents she claimed were transcripts of phone
calls between prospective employers and her former employer. One document was
said to be a transcript between prospective employer Jean Cox and Vaughn’s former
supervisor. See id. at 141. In her deposition, Vaughn testified that Cox had agreed
to make the recording and that Vaughn was not present when the call was recorded.
Id.
The defendants’ counsel revealed that they had contacted Cox, who denied
having made such a call, and Vaughn eventually admitted that she had called the
supervisor herself and falsely identified herself as Cox. Id. at 141 & n.1. After
opposing counsel moved for sanctions, Vaughn filed “Retractions and Corrections
of Deposition Testimony.” Id. at 141. Nevertheless, she continued to insist that she
had not lied about the transcript during her deposition and that she had used Cox’s
name “inadvertently.” Id.
After hearing the evidence, the trial court, on its own motion, consolidated
Vaughn’s suit against the TEC back into her suit against the remaining defendants
before dismissing the case in its entirety. Id. at 142. In affirming the judgment, the
First Court of Appeals stated that “[t]he trial court obviously—and reasonably—
concluded that Vaughn made these statements with the intent to deceive appellees.”
Id. at 143. Regarding Vaughn’s assertions that she had not lied in her deposition but
had used Cox’s name inadvertently, the reviewing court characterized these
14
assertions as an unsuccessful attempt “to obfuscate the purposes and implications of
her action.” Id. Although Vaughn belatedly tried to retract her false deposition
testimony, the appellate court held that “the trial court could reasonably have
believed that these changes would not have been made if appellees’ counsel had not
discovered her fabrication.” Id.
Vaughn also argued that her false statements pertained only to her defamation
claim, and thus, the trial court abused its discretion in dismissing all of her claims
against all defendants, including her previously-severed claims against the TEC. See
id. at 143–44. The appellate court disagreed and pointed out that, in addition to
fabricating evidence and lying about it in her deposition, Vaughn’s perjury in
claiming that she “inadvertently” used Cox’s name “was a continuation of her earlier
perjury [in her deposition].” Id. at 144.
The trial court’s order in today’s case demonstrates that the trial court
considered and rejected lesser sanctions under the same reasoning of Daniel and
Vaughn. In its sanctions order, the trial court wrote,
During various appearances in this case, the Court has inquired
of the Plaintiff about apparent deficiencies in proving up damages. It
is therefore particularly noticeable and troublesome when Plaintiff gets
caught manufacturing evidence related to damages. As observed in
Daniel v. Kelley Oil Corporation, 987 S.W.2d 230, 235 (Tex. App.—
Houston [1st] 1998), “[t]he very act of fabricating evidence strongly
suggests that a party has no legitimate evidence to support [his] claims.”
....
Since it is admitted that Plaintiff manufactured the I-9, the Court must
respond in some way to preserve the integrity of the court and the
system as a whole. . . . The Court is also guided by the particularly
persuasive reasoning found in [Daniel] which makes the point that
simply removing the offending evidence accomplishes nothing more
than placing the offending party back where he was had there been no
15
effort to defraud the system. Such a sanction removes the offending
evidence but reflects no level of punishment.
....
The Court notes in particular that no lesser sanction is entered because
any lesser sanction simply leaves Plaintiff where he was had he not
attempted this fraud. Further, merely striking this evidence, or more
broadly all evidence relating to the job application at Genrus, would
deprive Defendant of the opportunity to use the manufactured I-9 as a
means of exposing Plaintiff’s fraud.
Accordingly, the only appropriate sanction is striking Plaintiff’s
pleading.
The sanctions order itself shows both that the trial court considered lesser
sanctions and that the trial court gave a reasoned explanation for death-penalty
sanctions. In addition, the transcript of the sanctions hearing shows that Pressil’s
counsel stated that “to strike everything about the employment basically does the
same thing [as striking pleadings].” The trial court responded, “That’s the thing.
It’s so dispositive, because this is his one area of damage, isn’t it?” Pressil’s attorney
agreed that it was. Cf. Butan Valley, N.V. v. Smith, 921 S.W.2d 822, 827 (Tex.
App.—Houston [14th Dist.] 1996, no writ) (pointing out that when reviewing death-
penalty sanctions for abuse of discretion, we also consider the arguments of counsel).
Although the trial court gave specific reasons for concluding that lesser
sanctions were insufficient and death-penalty sanctions were required, Pressil
contends that the trial court’s explanation is conclusory. We disagree. Courts have
found a trial court’s reasons for rejecting lesser sanctions and imposing death-
penalty sanctions conclusory where the trial court simply states, without any
explanation, that lesser sanctions would have been ineffective or would not promote
compliance. See, e.g., GTE Commc’ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 729
(Tex. 1993) (orig. proceeding) (trial court “stated that lesser sanctions would have
been ineffective, but the court did not explain why, and the record does not indicate
16
why”); Associated Air Ctr. LP v. Tary Network Ltd., No. 05-13-00685-CV, 2015
WL 970664, at *3 (Tex. App.—Dallas Mar. 4, 2015, no pet.) (mem. op.)
(unexplained statement that “lesser sanctions would not promote compliance with
the Texas Rules of Civil Procedure” is conclusory); In re Estate of Perez-Muzza,
446 S.W.3d 415, 425 (Tex. App.—San Antonio 2014, pet. denied) (no deference
given to conclusory statement that “no lesser sanction that [sic] dismissal with
prejudice would be sufficient to deter, alleviate, and counteract the bad faith abuse
of the judicial process and the interference with core judicial functions that
[Veronica] committed in this case”). In contrast, the trial court in this case listed
some of the lesser sanctions it considered and specific reasons for concluding that
the lesser sanctions would not punish Pressil or would deprive Gibson of evidence
of Pressil’s lack of credibility.
We overrule this issue.
B. Relationship to “Core Elements” of Pressil’s Claim
Pressil further contends that death-penalty sanctions are excessive because the
manufactured evidence does not relate to a “core element” of his claims.
Specifically, he contends that it would have been sufficient for the trial court to
exclude the Form I-9, or even to exclude his claim for the alleged lost employment
opportunity, but that he should have been allowed to proceed with his claim for
mental-anguish damages. We disagree.
This court has adopted the reasoning in Daniel. See In re RH White Oak, LLC,
No. 14-15-00789-CV, 2016 WL 3213411, at *8 (Tex. App.—Houston [14th Dist.]
June 9, 2016, orig. proceeding [mand. denied]) (mem. op. on reh’g). As previously
explained, Daniel was governed by Vaughn, and in Vaughn, the fabricated evidence
pertained only to the plaintiff’s defamation claim, but our sister court affirmed death-
penalty sanctions that encompassed not only Vaughn’s defamation claim against her
17
former employer and former supervisors, but also her claim against the TEC for
wrongful denial of unemployment benefits. Although the fabricated evidence did
not go to a “core element” of the claim against the TEC, the fabrication nevertheless
gave rise to a presumption that the claims lacked merit.
Moreover, the trial court found that the manufactured evidence “was produced
as part of [the] evidence that the Plaintiff applied for employment, but had been
turned down due to the conduct of Defendants. The I-9, along with related
documents, are key to Plaintiff’s case and central to his only real damages, if any.”
As we have seen, Pressil’s counsel argued that excluding evidence of the alleged lost
employment opportunity would be a death-penalty sanction because it was Pressil’s
only basis for damages. Thus, the record supports the trial court’s finding that the
employment documents are key to Pressil’s case.
The cases on which Pressil relies are also factually distinguishable. For
example, Pressil relies on Fletcher v. Blair, 874 S.W.2d 83 (Tex. App.—Austin
1994, writ denied), in which the Third Court of Appeals reversed death-penalty
sanctions and stated that it is inappropriate “to extinguish a party’s entire cause of
action when the party makes a false statement about matters unrelated to the core
elements of that cause.” Id. at 86. That case did not involve fabrication of physical
evidence, as in the case before us. In Fletcher, the plaintiff was involved in an auto
accident in which she allegedly was injured. To increase her damages, she made
false statements about her past income and her level of education. See id. at 85. The
reviewing court concluded that her false statements did not justify a presumption
that her entire claim lacked merit, because “even if the false statements could be said
to diminish Fletcher’s credibility generally, and so taint her proof of subjective
medical injuries such as dizziness and irritability, nonetheless any diminution of her
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credibility should not color her evidence of objective injuries such as broken teeth.”
Id .at 85–86.
Here, the opposite is true. Logically, Pressil’s fabrication of evidence of
objective damages justifies a presumption that his claims of subjective injuries also
lack merit.
Pressil additionally relies on Kim v. Hendrickson, No. 05-13-01024-CV, 2015
WL 3898219 (Tex. App.—Dallas June 25, 2015, pet. denied) (mem. op.), in which
the Dallas Court of Appeals reversed death-penalty sanctions imposed for
fabricating evidence. In that case, Kim had contracted to buy a residential property
from Hendrickson, and Hendrickson unsuccessfully sued Kim to have the contract
set aside. Id. at *1. The trial court ordered specific enforcement and awarded Kim
$15,000 in attorneys’ fees. Id. When Hendrickson again sued Kim, alleging that
she had defaulted on the payments for the property, Kim counterclaimed for the costs
of maintaining the property. Id. In addition, she asked the trial court to apply
Hendrickson’s liability for her attorneys’ fees in the earlier suit as an offset against
any amount she owed for the property. See id. After a mistrial, both sides moved
for death-penalty sanctions: Kim had fabricated an invoice in support of her claim
for damages for the costs of maintenance, and Hendrickson had lied under oath. The
trial court granted both motions. See id. at *2–3.
On appeal, Kim argued that the trial court did not adequately consider lesser
sanctions and that death-penalty sanctions were arbitrary and unreasonable. Id. at
*4. The reviewing court agreed with both contentions. See id. at *5. The record
did not reflect that the trial court had considered lesser sanctions. Id. Although the
trial court had stated that Kim’s misconduct “went to the heart of the merits of the
case,” the reviewing court held that the fabricated evidence was unrelated to Kim’s
claim for an offset. See id. Because the claim for an offset was based on a judgment
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rendered against Hendrick several years earlier, Hendrickson’s liability for the fees
already was established. Kim’s fabrication of evidence regarding the cost of
maintaining the property did not justify a presumption that an offset based on an
existing final judgment lacked merit. Cf. also Baker v. Baker, 469 S.W.3d 269, 272,
278 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (death-penalty sanctions for
failure to provide method of calculating damages was excessive where it is
undisputed that father punched mother in the face and mother produced her medical
bills); Knoderer v. State Farm Lloyds, No. 06-13-00027-CV, 2014 WL 4699136, at
*11 (Tex. App.—Texarkana Sept. 19, 2014, no pet.) (mem. op.) (death-penalty
sanctions excessive where “compelling,” untainted evidence from disinterested
witnesses supported plaintiffs’ claim).
Unlike the cases Pressil cites, the presumption that Pressil’s claims lack merit
was not rebutted by proof of objective injuries or damages or by an admission of
tortious conduct. Pressil’s fabricated evidence pertained to his claim for damages
from a lost employment opportunity, and no other objective damages were alleged.
His requests for mental-anguish or emotional-distress damages are based on his
alleged subjective injuries requiring his testimony. The trial court acted within its
discretion in concluding that merely striking Pressil’s claim for the alleged lost
employment opportunity was an insufficient sanction because doing so would allow
Pressil to testify to subjective harm without allowing his opponents to expose his
prior fabrication of evidence.
Pressil also cites In the Estate of Perez-Muzza, 446 S.W.3d 415, 425 (Tex.
App.—San Antonio 2014, pet. denied) for the proposition that false statements on
collateral issues do not warrant death-penalty sanctions. In that case, Veronica Peña
contested a will and signed an affidavit denying that she had received any of the
decedent’s jewelry. Perez-Muzza, 446 S.W.3d at 418. She later admitted in a
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deposition that the executor had given some jewelry to a relative, and the relative
had given a piece of the jewelry to Peña. Id. The trial court dismissed the case (a) on
the ground that Peña’s acceptance of the jewelry estopped her from contesting the
will, and (b) as a sanction for providing false testimony on the estoppel issue. See
id. at 419, 425. The reviewing court held that, as a matter of law, Peña’s receipt of
the jewelry under the circumstances described did not estop her from contesting the
will, and thus, her false denial of having received any jewelry “had no bearing on
any material issue before the trial court.” See id. at 425. Thus, Peña’s false
statements made to avoid estoppel did not justify a presumption that her claims
lacked merit, because as a matter of law, estoppel did not apply. Here, however,
Pressil’s alleged damages were an essential element of his claim, not a collateral
matter to be decided as a question of law.
Pressil additionally relies on In re First Transit Inc., 499 S.W.3d 584 (Tex.
App.—Houston [14th Dist.] 2016, orig. proceeding [mand. denied]), in which we
directed the trial court to vacate its sanctions order and consider lesser sanctions. Id.
at 598. In that case arising from a complex traffic accident involving five vehicles
and seven collisions, a bus struck and killed a man. Id. at 588. As a death-penalty
sanction for failing to timely produce evidence, the trial court excluded the bus
company’s accident-reconstruction expert from testifying. Id. at 591. The trial court
did not consider lesser sanctions or offer a reasoned explanation for death-penalty
sanctions, id. at 595, and as to one possible ground for sanctions, the bus company
was not given notice and an opportunity to be heard. Id. at 596. As another
suggested ground for sanctions, the plaintiff’s counsel pointed out that the bus
company had removed and misplaced the bus’s video camera. See id. We stated
that the sanction could not be upheld on this basis because the trial court made no
finding of spoliation and because there was not a direct relationship between the loss
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of the camera and the exclusion of all testimony from the bus company’s expert
witness. Id. at 596–97.
Unlike in First Transit, there is a direct relationship between Pressil’s
fabrication of evidence and the death-penalty sanctions imposed. Pressil
manufactured evidence in support of his claimed loss of an employment opportunity,
and his counsel acknowledged that those damages were central to the case.
For all of these reasons, we overrule Pressil’s remaining issue.
V. CONCLUSION
Finding no abuse of discretion, we affirm the trial court’s judgment.
/s/ Tracy Christopher
Justice
Panel consists of Chief Justice Frost and Justices Christopher and Jamison.
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