Braden v. Downey
| Decision Date | 19 June 1991 |
| Docket Number | No. C-9438,C-9438 |
| Citation | 811 S.W.2d 922 |
| Parties | Don T. BRADEN, Relator, v. Hon. Daniel M. DOWNEY, Judge of the 295th District Court of Harris County, Texas, Respondent. |
| Court | Texas Supreme Court |
Respondent District Judge, Hon. Daniel M. Downey, ordered relator Don T. Braden to answer certain discovery requests and found that his earlier refusal to do so was abusive of the discovery process. As sanctions for such abuse, the district court ordered Braden to pay $10,000 to the party seeking discovery, and ordered Braden's attorney to perform ten hours' community service. The deadlines ordered for payment of the monetary sanctions and completion of the community service preceded conclusion of the litigation. 1 Braden seeks mandamus directing the district court to vacate these discovery rulings. We conclude that the district court did not clearly abuse its discretion in ordering Braden to answer the discovery requests, but that it did abuse its discretion in ordering payment of the monetary sanctions imposed and performance of community service before those sanctions, and the basis for imposing them, could be appealed. We therefore conditionally grant mandamus relief only to direct the district court to modify its order to defer compliance with the imposition of sanctions until after rendition of final judgment.
South Main Bank loaned a limited partnership $620,000, secured by a lien on certain commercial real estate. The borrower's general partners and most or all of its limited partners, including Braden, each personally guaranteed repayment of a portion of the loan. The part Braden guaranteed was $69,750. When the partnership became insolvent, Braden sued the Bank and others in Montgomery County, where he resided, seeking to avoid the obligation of his guaranty and to recover actual and punitive damages on various liability theories. 2 The Bank foreclosed on its security and then sued the partnership and the guarantors in Harris County for the deficiency, alleged to be $485,767.57. Braden's lawsuit was transferred to Harris County on motion to transfer venue, where it was consolidated with the Bank's action.
After the Bank took Braden's deposition, it directed a discovery request to Braden containing eight requests for admission of facts, five requests for production of documents, and a first set of twenty-five numbered interrogatories, one with two subparts and two with five subparts each. Braden responded by objecting to most of the interrogatories and denying most of the requests. More specifically, Braden denied: that the Bank was the owner and holder of the note signed by the partnership; that the partnership had defaulted on its note and contract obligations to the Bank; that the deficiency owed by the partnership was $485,767.57; that interest on the deficiency was accruing at the rate of 11% per annum; that Braden was liable to the Bank for the partnership's debts; and that a reasonable and necessary attorney fee to collect the debt owed by the partnership would be $48,516.76. Braden admitted only that he had signed a guaranty agreement. Each request for admission was accompanied by an interrogatory asking Braden to "state all facts relied upon in denying the Request or objecting to it" if the request was not admitted. Braden answered the interrogatory relating to his denial that the Bank was the owner and holder of the partnership note by stating that he was not in a position to know one way or the other. To all the other interrogatories relating to denied requests for admission Braden repeated the following objection:
This interrogatory is objected to because it is vague, ambiguous, overly broad, non-specific, and unduly burdensome in requesting this party to "state all facts relied upon" in denying the claim. Under the Texas Rules of Civil Procedure the number of questions including subsections in a set of interrogatories shall be limited so as not to require more than thirty answers. An interrogatory requesting a party to "state all facts" in essence requests a party to state the entire substance of all testimony, documents, and other evidence which may be offered at trial. This would of necessity involve a narrative discourse encompassing more than thirty answers and would require the disclosure of work product.
In each instance, except for the interrogatory about attorney fees, Braden added:
This interrogatory is also objected to because Don T. Braden has been extensively examined at deposition about these very same matters. To now inquire about these same matters in interrogatories is unduly burdensome.
Braden lodged essentially the same objections to interrogatories which asked him: to "state in detail" what banking and credit review services were to be provided the partnership; to "state all facts" supporting a conclusion that such services were not properly performed; to state the content and source of information supporting his claim that banking services rendered were deficient; and to state how he was damaged as a result. Braden also objected on the same basis to several interrogatories which requested him to state in detail the factual basis for certain of his claims, including what misrepresentations were allegedly made by the Bank, who made them, and what was said. In response to an interrogatory which asked him to identify all persons with relevant or discoverable knowledge about the litigation, Braden stated:
To the knowledge of this party, the only persons having knowledge of relevant matters are the parties to this lawsuit, the parties to Cause No. 89-04947, the persons mentioned in my deposition taken on September 20, 1988, and respective attorneys of the parties. The addresses and business affiliations of these persons are already known to you. To require this party to compile a list of addresses is unduly burdensome. If you should encounter difficulty in locating any of these persons, please contact my attorney and he will provide you with such information as I may have concerning the location of the person.
Braden responded to three of the Bank's requests for production and objected to the other two. One of the two requests to which Braden objected called for documents pertaining to a transaction which was not directly related to the litigation. The other requested Braden to "[p]roduce any and all documents which may lead to the discovery of admissible evidence in this case or which are relevant to any claim made by any party in this lawsuit." Braden objected to this request as being, among other things, improper.
The Bank moved the district court to compel Braden to answer all the discovery requests to which he objected and to award the Bank $500 attorney fees as sanctions. The district court considered the Bank's motion at a hearing at which counsel for both parties were present. The district court overruled Braden's objections to all but one of what it determined were the first thirty interrogatories, counting each subpart as a separate interrogatory. 3 The district court also overruled Braden's relevance objection to the request for production relating to a separate transaction. The district court denied the Bank's motion as it pertained to the other interrogatories and the other request for production for all documents relevant to the claims asserted.
At the conclusion of the hearing on the Bank's motion to compel, the district court found that both parties were abusing the discovery process. As sanctions for such abuse, the district court ordered from the bench that Braden pay the Bank $10,000 and that Braden's attorney perform ten hours of community service for the Child Protective Services Agency of Harris County. The district court also ordered the Bank's attorney to perform five hours of service for the same agency. The court's subsequent order gave Braden thirty days to pay the $10,000, and gave the attorneys about six weeks to complete their community service.
Braden moved the court of appeals for leave to file his petition for writ of mandamus directing the district court to vacate its order. The court of appeals denied Braden's motion without opinion. Braden then filed his motion in this Court. We granted leave to file and, at Braden's request stayed enforcement of the district court's order. 4
Braden contends that the district court abused its discretion in overruling his objections to the discovery requests and ordering him to answer them. Braden offers three arguments in support of this contention, each of which we examine in turn.
First, Braden argues that the district court's order compels disclosure of materials protected by the attorney work product privilege. We have held that mandamus may issue to correct a trial court's clear abuse of discretion in ordering disclosure of privileged materials. See West v. Solito, 563 S.W.2d 240 (Tex.1978); Maresca v. Marks, 362 S.W.2d 299 (Tex.1962). Rule 166b, paragraph 4 of the Texas Rules of Civil Procedure 5 requires that "a party who seeks to exclude any matter from discovery on the basis of an exemption or immunity from discovery, must specifically plead the particular exemption or immunity from discovery relied upon and produce evidence supporting such claim in the form of affidavits or live testimony at a hearing". Braden did assert the attorney work product privilege in his objections to the Bank's interrogatories. He failed, however, to offer any evidence in support of his claim. Indeed, he did not even refer to his claim of privilege during the hearing before the district court on the Bank's motion to compel. In these circumstances, we hold that the district court did not abuse its discretion in overruling Braden's assertion of privilege.
Next, Braden argues that the effect of the district court's order is to require him to repeat in answers to interrogatories the same...
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