Brighton Square Pub., Inc. v. Nelson, 01-89-00998-CV

• Decision Date: 09 August 1990
• Docket Number: No. 01-89-00998-CV,01-89-00998-CV
• Citation: 795 S.W.2d 29
• Parties: BRIGHTON SQUARE PUBLISHING, INC., Appellant, v. Roy L. NELSON, Jr., Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 29

795 S.W.2d 29

BRIGHTON SQUARE PUBLISHING, INC., Appellant, v. Roy L. NELSON, Jr., Appellee.

No. 01-89-00998-CV.

Court of Appeals of Texas Houston (1st Dist.).

Aug. 9, 1990.

J. Michael Tibbals, Dallas, for appellant.

Albert L. Giddens, Pasedena, for appellee.

Before EVANS, C.J., and DUNN and O'CONNOR, JJ.

OPINION

EVANS, Chief Justice.

This is an appeal by writ of error. Brighton Square Publishing, Inc. appeals from a post-answer default judgment in favor of Roy L. Nelson, Jr. We reverse and remand.

Nelson instituted this suit against Brighton Square on April 11, 1988, seeking to recover damages for breach of contract. Brighton Square answered on June 10, 1988, and on October 25, 1988, Nelson served Brighton Square with a motion for sanctions due to Brighton Square's failure to answer interrogatories. Nelson also served Brighton Square with a notice stating that on Monday, November 7, 1988, the motion for sanctions would be submitted to the court "for ruling without the necessity of an oral hearing, unless demand for one is made by you." On December 12, 1988, the trial court, without an oral hearing, sanctioned Brighton Square by striking its pleadings.

On January 17, 1989, the trial court conducted a hearing to assess damages, and on February 16, 1989, the court signed a final judgment awarding Nelson $109,186 as actual damages, plus interest and attorney's fees. The court's judgment recites that Brighton Square, "although duly and legally cited to appear and answer, failed to appear and answer, and wholly made default." The judgment further recites that "every notice was duly given [Brighton Square] as required by law," and that Brighton Square "nevertheless wholly made default." Brighton Square did not file a motion for new trial or perfect an appeal from the trial court's judgment, but on August 10, 1989, initiated this writ of error proceeding.

In its first point of error, Brighton Square contends the trial court erred in striking its pleadings and entering a default judgment because the record does not affirmatively show the court conducted a hearing on the motion for sanctions. Because the court's default judgment is based upon the validity of the order striking Brighton Square's pleadings, we must determine whether the face of the record shows an error on the part of the court in ruling on the motion for sanctions without first holding a hearing.

According to TEX.R.CIV.P. 215(2)(b)(5), the "court in which the action is pending may, after notice and hearing, make an order striking out pleadings or parts thereof ... or rendering a judgment by default against the disobedient party." This rule vests the court with broad authority to impose harsh and onerous sanctions for failure to comply with discovery rules. Before imposing such severe sanctions, however, the court must, under the rule, afford the recalcitrant party an opportunity to be heard. See First Dallas Petroleum, Inc. v. Hawkins, 727 S.W.2d 640, 648 (Tex.App.--Dallas 1987, no writ); Plodzik v. Owens-Corning Fiberglass Corp., 549 S.W.2d 52, 54 (Tex.Civ.App.--Waco 1977, no writ). Although the requirements for notice and hearing may be waived, such a waiver will not be inferred simply because the party did not request an oral hearing.

Nelson contends the trial court's local rules provide that a party may waive a right to a hearing required by the Texas Rules of Civil Procedure by failure to seek a hearing before the court. We need not determine whether such local rules conflict with the state-wide rules issued by the Texas Supreme Court, because we have not properly been asked to take judicial notice of the local rules. It is the burden of the party relying on such local rules to provide the appellate court with competent proof of their content. See Stoner v. Thompson, 570 S.W.2d 511, 515 (Tex.Civ.App.--Waco 1978), aff'd as reformed, 578 S.W.2d 679 (Tex.1979). Here, Nelson did not provide this Court with competent proof regarding the content of the local rules, and we decline to accept Nelson's general conclusions about their content and import. See McRae v. Guinn Flying Serv., 778 S.W.2d 189, 191 (Tex.App.--Houston [1st Dist.] 1989, no writ).

We accordingly hold the face of the record does not affirmatively show Brighton Square was afforded an opportunity to be heard on Nelson's motions for sanctions, and therefore, the court's order striking Brighton Square's pleadings does not comply with TEX.R.CIV.P. 215(2)(b) and 215(2)(b)(5). We therefore sustain Brighton Square's first point of error.

In its second point of error, Brighton Square contends the trial court erred in conducting the trial and awarding judgment to Nelson because the...