Approximately $5,602.00 v. State

Affirmed and Memorandum Opinion filed July 2, 2009 Affirmed and Memorandum Opinion filed July 2, 2009. In The Fourteenth Court of Appeals ____________ NO. 14-08-00359-CV ____________ APPROXIMATELY $5,602.00, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 55th District Court Harris County, Texas Trial Court Cause No. 2006-10466 M E M O R A N D U M   O P I N I O N In this forfeiture case, appellant Herbert B. Gibbs asserts that the trial court erred by striking his pleadings and rendering a final judgment against his approximately $5,602.[1] We affirm. The State filed a notice of seizure and intended forfeiture of approximately $5,602 owned by Gibbs, claiming it was contraband. Gibbs answered, and after an abatement the case was set for trial. The State then sought discovery to determine the source of the money. After Gibbs responded, the State filed a motion to compel, claiming Gibbs did not respond to requests for production and inadequately responded to some interrogatories and requests for disclosure. The trial court granted the State=s motion. The order granting the motion warned that if Gibbs did not fully comply the trial court might sanction him by, inter alia, striking his pleadings and entering a default judgment against him. Gibbs timely supplemented his interrogatory answers and requests for disclosure but claimed the State never served him with requests for production. The State filed a second motion to compel, claiming it had served Gibbs with requests for production and complaining that he inadequately responded to some of the same interrogatories and requests for disclosure involved in the first motion to compel. In response, Gibbs complained that the State was harassing him, that he never received any requests for production, and that he could not force others to give him information. The State=s second motion to compel was heard by submission. On January 22, 2008, the trial court signed an order granting the State=s second motion, striking appellant=s pleadings, and entering a default judgment against Gibbs. Gibbs=s motion for new trial was overruled by operation of law, and this appeal followed. In his sole issue, Gibbs complains that the trial court abused its discretion by imposing death penalty sanctions because (1) lesser sanctions were not considered; (2) the trial court did not explain why lesser sanctions would not suffice; and (3) the sanctions imposed were Amore severe than necessary to satisfy the legitimate purposes of sanctions for discovery abuse.@ As a preliminary matter, Gibbs had to preserve his complaints by raising them below through a timely request, objection, or motion stating the grounds for the ruling he sought from the trial court with sufficient specificity to make the trial court aware of his complaint, unless the specific grounds were apparent from the context. See Tex. R. App. P. 33.1(a)(1)(A); Willis v. Willis, 826 S.W.2d 700, 702 (Tex. App.CHouston [14th Dist.] 1992, no writ); Wade v. Farmers Ins. Group, No. 14‑01‑00691‑CV, 2002 WL 1404713, at *2 (Tex. App.CHouston [14th Dist.] June 27, 2002, no pet.) (not designated for publication) (holding that complaint regarding death penalty sanctions would be waived if not preserved with appropriate post-trial motion or some similar method). Further, a motion for new trial only preserves for appellate review those complaints raised in the motion. See Tex. R. App. P. 33.1(b). An appellate complaint is not preserved by a motion for new trial that raises a different complaint before the trial court. See Sterling v. Alexander, 99 S.W.3d 793, 797 (Tex. App.CHouston [14th Dist.] 2003, pet. denied) (holding sanctions issue waived where appellant did not preserve his appellate argument through his motion for new trial or elsewhere at the trial court level); see also Gerdes v. Kennamer, 155 S.W.3d 523, 532 (Tex. App.CCorpus Christi 2004, pet. denied) (motion for new trial stating one legal theory does not preserve a different legal theory for appeal). Here, Gibbs asserted in his motion for new trial that Athe judgment [was] contrary to the law and evidence,@ the final judgment contained false statements and incorrectly asserted that Gibbs had not appeared, the State never served requests for production, Gibbs had requested hearings rather than rulings by submission, the hearings should have taken place in a real courtroom, and a deadline for dismissal for want of prosecution had passed without exception. Thus, Gibbs=s motion for new trial did not specifically state or properly make the complaints he raises on appeal, and the specific grounds asserted here were not apparent from the context. Cf. Thomas v. Thomas, 917 S.W.2d 425, 433 (Tex. App.CWaco 1996, no writ) (parties against whom sanctions were imposed Aproperly preserved their right to appeal by filing a motion for new trial which specifically stated their complaint about the sanction order@). We therefore hold that Gibbs failed to preserve his sole issue for appellate review. See Sterling, 99 S.W.3d at 797; D/FW Comm=l Roofing Co., Inc. v. Mehra, 854 S.W.2d 182, 189 (Tex. App.CDallas 1993, no writ). However, even if Gibbs had preserved error, his issue is without merit. We review a trial court=s ruling on a motion for sanctions for an abuse of discretion, which occurs where the trial court acts arbitrarily or unreasonably and without reference to any guiding rules and principles. Cire v. Cummings, 134 S.W.3d 835, 838B39 (Tex. 2004). Striking a party=s pleadings for discovery abuse is Athe most devastating@ sanction a trial court may impose. Transamerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917B18 (Tex. 1991). Therefore, such a sanction is not justified unless a party=s hindrance of the discovery process justifies a presumption that its claims or defenses lack merit. Id. at 918. AHowever, if a party refuses to produce material evidence, despite the imposition of lesser sanctions, the trial court may presume that an asserted claim or defense lacks merit and dispose of it.@ Cire, 134 S.W.3d at 839 (quoting Transamerican Natural Gas Corp., 811 S.W.2d at 918). Before striking Gibbs=s pleadings, the trial court=s order on the first motion to compel warned Gibbs that his pleadings might be stricken if he did not fully comply. Contrary to Gibbs=s arguments on appeal, this warning constituted the imposition of a lesser sanction. See Paradigm Oil, Inc. v. Retamco Op., Inc., 161 S.W.3d 531, 539 (Tex. App.CSan Antonio 2004, pet. denied) (stating that order to compel joined with statement that noncompliance with the order would result in dismissal constitutes the type of lesser sanction that must be imposed prior to imposition of death penalty sanction); Andras v. Mem=l Hosp. Sys., 888 S.W.2d 567, 572 (Tex. App.CHouston [1st Dist.] 1994, writ denied) (same); Wade, 2002 WL 1404713, at *4, 5 (stating that where appellant refused to comply with trial court=s first order to compel, which warned that his pleadings might be stricken for failure to comply, record supported trial court=s finding that lesser sanctions had been tested, and subsequent death penalty sanctions were not unnecessarily severe). When Gibbs failed to comply with the trial court=s order in the face of this lesser sanction, the trial court did not abuse its discretion in striking his pleadings and entering a default judgment against him. See Transamerican Natural Gas Corp., 811 S.W.2d at 918; Pryor v. State, No. 14-05-00411-CV, 2006 WL 1528963, at *2 (Tex. App.CHouston [14th Dist.] June 6, 2006, no pet.) (mem. op., not designated for publication). We overrule appellant=s sole issue. Having overruled appellant=s sole issue, we affirm the trial court=s judgment. /s/ Leslie B. Yates Justice Panel consists of Justices Yates, Guzman, and Sullivan. [1] Although AApproximately $5,602.00@ is technically the appellant in this case, we will refer to Gibbs, the person from whom that money was sought, as appellant.