Aquamarine Operators v. Downer

Decision Date28 February 1985
Docket NumberNo. C14-84-635CV,C14-84-635CV
PartiesAQUAMARINE OPERATORS, Appellant, v. Ida E. DOWNER, Appellee. (14th Dist.)
CourtTexas Court of Appeals

Terry P. Ayre, Jeffrey R. Bale, Joseph H. Finkel, Brown, Sims & Ayre, Houston, for appellant.

Mike Kerensky, John O'Quinn, John O'Quinn & Associates, Frank M. Staggs, Jr., O'Quinn & Hagans, Houston, for appellee.

Before JUNELL, ROBERTSON and CANNON, JJ.

OPINION

ROBERTSON, Justice.

Aquamarine Operators, Inc. appeals a judgment for $1,685,988.00 entered after the trial court struck its pleadings as a discovery sanction. The controlling issue on appeal is whether those sanctions were proper. After a careful review of the record, we believe the court's action was erroneous and accordingly reverse and remand the cause.

The facts forming the basis of this lawsuit can be briefly summarized. Appellee's husband died while working as a seaman on appellant's vessel. Appellee brought a wrongful death action under the Jones Act and general maritime law. After appellant's answer to this pleading was filed, appellee issued notice to take oral depositions of eight people. These people were scheduled for deposition three times, twice by notice and once by agreement, but appellant notified appellee on two of those occasions that they were unable to attend because their vessel was "out at sea." On the day following the last of these two notices, appellee filed a motion for sanctions and a hearing on that motion was set. Only the appellee appeared at that setting and the judge thereafter entered an order striking appellant's answer. The trial court subsequently refused to set aside his order granting sanctions, and after a jury trial was held solely on the issue of damages, judgment was entered against appellant.

While appellant raises six points of error challenging the judgment, we believe the first two points are dispositive of the appeal. Appellant first contends that the trial court erred as a matter of law in striking its answer because Rule 215a, Texas Rules of Civil Procedure, which contained discovery sanctions applicable at that time, permitted the trial judge to strike a party's pleadings only when a "party or an officer or managing agent" failed to comply with a discovery request. Thus, it argues, since the witnesses here noticed for deposition were not parties, this particular sanction was not an available option. We agree.

To properly address this issue, we first turn to the then applicable language of rule 215a.

Failure of Party or Witness to Attend. If a party or an officer or managing agent of a party, except for good cause shown, fails to appear before the officer who is to take his oral deposition or his answers to written questions or cross-questions under these rules, after proper service of subpoena or notice as provided in Rule 201, the court in which the action is pending on motion and notice may strike out all or any part of the pleading of that party, or dismiss the action or proceeding or any part thereof, or direct that such party shall not be permitted to present his grounds for relief or his defense, or enter a judgment by default against that party, or make such other order with respect thereto as may be just.

Any witness who, except for good cause shown, fails to appear before the officer who is to take his oral deposition or answers to written questions or cross-questions under these rules, after proper service of subpoena, may be punished as for contempt of the court in which the action is pending or of the district court in the district in which such deposition or answers are to be taken, and an attachment may issue out of such court for such witness, as in ordinary civil cases. (Emphasis added.)

TEX.R.CIV.P. 215a(c) (Vernon 1976). This rule obviously makes a distinction between parties and witnesses. See Barrientos v. Texas Employers' Insurance Association, 507 S.W.2d 900, 903 (Tex.Civ.App.--Amarillo 1974, writ ref'd n.r.e.). It therefore becomes our task to determine whether the trial court had sufficient information before it to decide if the requested deponents fell within the "party" category. We are guided in this determination by the principle that the movant, here the appellee, had the burden of proof before the trial court. See Mobile, Inc. v. Cone, 457 S.W.2d 175, 176 (Tex.Civ.App.--Tyler 1970, writ ref'd n.r.e.).

The record before us reveals that only certain pertinent information was before the trial court at the time the sanctions were granted. It included a notice of deposition filed May 4, 1983, requesting the appearance of the following persons with no further designation of their status:

1. William Balou;

2. Chester P. Dalfrey;

3. Ross Pearce;

4. Clifford Crider;

5. Ernest Richardson;

6. Donald Doswell;

7. The supervisor of Chester P. Dalfrey;

8. Custodian of the entire personnel file for Edward Pierce Downer.

A second notice contained an identical listing. The actual motion for sanctions itself was the only document indicating that any of the requested deponents were anything but crew members. This motion, sworn to by appellee's attorney, referred to "the entire crew as well as the captain's supervisor and a member of Aquamarine Operators to discuss the fringe benefit program for the Decedent." At the time the sanctions were granted the requested deponents had not been further identified in any of the papers before the court.

It is also noteworthy that there evidently was not a "hearing" on the motion for sanctions. The "Notice of Submission" notified appellant that the motion would be heard on July 18, 1983, "without the necessity of an oral hearing unless one is requested by you." (Emphasis supplied). While this hearing was reset to August 22, neither appellant nor his counsel appeared on that date (as will be shown later on) and neither the order granting sanctions nor the docket sheet reflects the court heard any evidence.

Even stretching these listings and sworn statements to the point of implications, we do not believe the trial court had sufficient evidence before it to characterize any of the noticed persons as "a party or an officer or managing agent of a party" as required by the rule. The crew obviously does not fit into any of those categories. While the supervisor of Chester Dalfrey, the captain, 1 might be considered a managing agent of the vessel, this bears no relationship whatsoever to the required category, that is, a managing agent of the party, Aquamarine Operators. 2 See Davis v. Sea Fresh Fisheries, Inc., 1983 A.M.C. 1165 (W.D.Wash.1981). The noticing of the custodian of records, alternatively referred to as a member of Aquamarine Operators, is equally ambiguous. Such a designee need not, by definition or implication, be an official of the corporate party. Under this record it was not possible for the court to determine that any of these people were parties, or officers or managing agents of the party defendant, Aquamarine Operators. Consequently the court could not, as a matter of law, strike appellant's pleadings under the dictates of rule 215a.

While we believe that the trial court did not have the authority to impose this sanction, of equal importance in our decision is the issue of whether that action constituted an abuse of discretion. See Bass v. Duffey, 620 S.W.2d 847, 849 (Tex.Civ.App.--Houston [14th Dist.] 1981, no writ). We are aware of the recent judicial trend of taking firmer action for discovery abuse. See, e.g., Kilgarlin & Jackson, Sanctions for Discovery Abuse Under New Rule 215, 15 St. Mary's L.J. 767 (1984). Although we believe the facts here did not present an appropriate case for the extreme discovery sanction imposed, in light of the trend to the contrary, we will carefully detail the series of events leading to the trial court's granting of the motion for sanctions.

Plaintiff-appellee filed her original petition on January 27, 1983. On May 4, 1983, she filed the first notice of intention to take depositions on June 1, 1983. On June 1, appellant's attorney called appellee's attorney and informed him that he had just been notified that the crew was out at sea and therefore was unavailable for the deposition. The two attorneys then informally agreed to reset the depositions for June 22, 1983. On June 21, appellant's attorney told appellee's attorney that the crew was again at sea and would not be able to attend the deposition scheduled for the next day. Appellant's attorney suggested that the crew would be able to attend a July 5 deposition in Houston, and appellee's attorney thereafter noticed a deposition for that date and location.

There is some dispute as to the next turn of events. In a response to the motion for sanctions, appellant's attorney stated under oath that on July 1, he contacted counsel for appellee and requested that the depositions be taken in New Iberia, Louisiana, where the crew's vessel was docked. The crew was unable to go to Houston as scheduled because a skeleton crew had to remain with the vessel at all times. He further stated that appellant chartered a plane and informed appellee's counsel that they would fly him to New Iberia at their expense. On the morning of July 5, appellant's counsel called counsel for appellee to give him directions to the airport where the chartered airplane was waiting. He was informed by the secretary that appellee's attorney was out of the office. That afternoon appellant's attorney was notified that appellee's attorney refused to make the trip. In an unsworn letter to the court (in answer to appellant's response to the motion for sanctions), appellee's attorney asserted that appellant's recitation of the events of July 1 was "blatently false." He stated that appellant's attorney did not contact him at all on July 1, and in fact did not call him until 10:00 a.m. on July 5, one hour after the deposition was to begin. Appellee's attorney told the court...

To continue reading

Request your trial
1 cases
  • Downer v. Aquamarine Operators, Inc.
    • United States
    • Texas Supreme Court
    • December 4, 1985
    ...court of appeals reversed the trial court judgment, holding that the action of that court was an error of law and an abuse of discretion. 689 S.W.2d 472. We reverse the judgment of the court of appeals and affirm the judgment of the trial The issues before us are whether TEX.R.CIV.P. 215a(c......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT