Boothe v. Hausler
| Decision Date | 08 March 1989 |
| Docket Number | No. C-8284,C-8284 |
| Citation | 766 S.W.2d 788 |
| Parties | Sterling Price BOOTHE, III, Petitioner, v. Dieter Erich HAUSLER, Respondent. |
| Court | Texas Supreme Court |
Rayborn C. Johnson, Bartley & Johnson, Houston, for petitioner.
Steven C. Simmons, Houston, for respondent.
The issue in this case is the sanction to be imposed on a party for failing to supplement interrogatories regarding the address of a witness. The trial court allowed the witness to testify over objection. The court of appeals affirmed, holding that a determination of good cause was within the trial court's discretion. 762 S.W.2d 304. While we agree with this general statement of the law, the court of appeals misapplied the standard in this case, and we therefore reverse its judgment and remand the cause for a new trial.
Sterling Price Boothe, III was assaulted in the foyer of the Cellar Door Restaurant in Houston in December 1983. Boothe's companion that evening, Susan Buck, witnessed the assault and identified Dieter Erich Hausler in a photo line-up and at trial as Boothe's assailant. Boothe brought suit against Hausler to recover his medical expenses and exemplary damages. Hausler denied that he had assaulted Boothe and asserted that a companion, Ron Garland, had committed the assault. Based upon jury findings that Hausler had not assaulted Boothe, the trial court rendered judgment for Hausler.
The answers Hausler gave to Boothe's pre-trial interrogatories identified three persons as having knowledge of facts relevant to the suit. An address was given for only one, Charlene Quarles Hausler. Two of those identified, Ron Garland and his unidentified girlfriend, were listed as "whereabouts unknown." Boothe served Hausler's attorney with a notice of intention to depose Charlene Hausler shortly after her address was supplied. Although the subpoena for Ms. Hausler was not returned to the clerk's office, Boothe alleged that she could not be served.
Evidence in the record shows Hausler knew Boothe was seeking to depose Charlene Hausler. Dieter Hausler took no action to inform Boothe of the woman's whereabouts. At the hearing on Boothe's objection to Ms. Hausler's testimony, Dieter Hausler's attorney stated that he would have given Ms. Hausler's address to Boothe if he had been specifically asked to do so. This suggests that Dieter Hausler knew where Charlene Hausler was and failed to properly supplement his answers to interrogatories. Because Charlene Hausler was living with, and ultimately married to, Dieter Hausler, we infer that he had knowledge of her whereabouts.
Parties have an affirmative duty to supplement answers to discovery requests if an answer "is no longer true and complete and the circumstances are such that failure to amend the answer is in substance misleading." Tex.R.Civ.P. 166b(6)(a). The sanction for failure to comply with this rule is exclusion of the evidence affected by the violation. Tex.R.Civ.P. 215(5); Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex.1986). An exception to this strict rule exists, however, when the party proffering such evidence establishes before the trial court that good cause exists for allowing the evidence. E.g., Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394 (Tex.1989).
Hausler has made no such showing of good cause in this record....
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