City of Houston v. Arney

• Decision Date: 18 October 1984
• Docket Number: No. 01-83-00744-CV,01-83-00744-CV
• Parties: CITY OF HOUSTON, Appellant, v. Madeline Marie ARNEY, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 867

680 S.W.2d 867

CITY OF HOUSTON, Appellant, v. Madeline Marie ARNEY, Appellee.

No. 01-83-00744-CV.

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

Oct. 18, 1984.

Rehearing Denied Nov. 21, 1984.

F.J. Coleman, City Atty., William T. Fiddes, Jr., Asst. City Atty., Houston, for appellant.

Robert L. Collins, Houston, for appellee.

Before DUGGAN, JACK SMITH and BULLOCK, JJ.

OPINION

DUGGAN, Justice.

This is an appeal from the entry of an interlocutory default judgment against the appellant, City of Houston, and from the trial court's award of $502,500 in damages. The default judgment was entered after the trial court struck the City's pleadings, pursuant to Rules 168(8), 170(c) and 215a(b), Tex.R.Civ.P. (Vernon Supp.1983), for failure to comply with the court's order to answer interrogatories. After the entry of the default judgment, a hearing on damages was held before the trial court, although a jury fee had been paid by the City, at which time the court made its damage award. This appeal follows the overruling of the City's motion for new trial.

The plaintiff filed suit on October 4, 1982, alleging that personnel at a free health clinic operated by the City of Houston Health Department failed to inform her that her pap smear had revealed a "precancerous" condition, and that as a result of this failure to notify she was forced to undergo a complete hysterectomy.

The plaintiff served interrogatories upon the City on November 11, 1982, to be answered on or before December 12, 1982. Answers were not filed, and plaintiff filed her motion to compel answers. The motion to compel was heard February 3, 1983, and on that date the court entered an order compelling the City to answer plaintiff's interrogatories by March 3, 1983. On May 5, 1983, nine weeks after the due date, plaintiff filed her motion to strike pleadings. The City was notified of the hearing set for May 10, 1983, but did not appear. Plaintiff's motion for sanctions was granted and the City's pleadings were stricken.

The City had earlier mailed its answers to the interrogatories to the clerk's office, and the answers were filemarked as being received at 9:26 a.m. on May 10, 1983, the day of the hearing on plaintiff's motion to strike pleadings. The appellant admits that it was notified of this setting and that its attorney did not attend the motion hearing.

Appellant contends that the trial court abused its discretion in entering the interlocutory default judgment as a sanction for appellant's failure to timely answer appellee's interrogatories.

Under the then applicable Texas Rules of Civil Procedure 168(8), 170(c) and 215a(b), a trial judge was authorized to impose sanctions for abuse of the discovery process. Specifically, Rule 170(c) stated that such sanctions may consist of striking pleadings, dismissing the cause of action, or rendering a default judgment. The choice of the appropriate sanction is for the trial court rather than the appellate court, and as long as such sanctions are within the authority vested in the trial court, they will not be overturned unless they constitute a clear abuse of discretion. Illinois Employers Insurance Company of Wausau v. Lewis, 582 S.W.2d 242, 245 (Tex.Civ.App.--Beaumont, writ ref'd n.r.e. per curiam, 590 S.W.2d 119 (Tex.1979)). In deciding whether or not there was an abuse of discretion, the question is whether the trial court's decision was arbitrary or unreasonable. Bottinelli v. Robinson, 594 S.W.2d 112, 117 (Tex.Civ.App.--Houston [1st Dist.] 1979, no writ).

The authorized sanctions are not intended to be arbitrary and exclusive, but flexible and plural, vesting in the trial court broad discretion to fashion a remedy which will secure compliance with its orders and deter future non-compliance. (Emphasis added).

Lewis, 582 S.W.2d at 244.

"[A]buse of the discovery rules has caused a trend in federal and state courts toward using sanctions to deter violations of the rules by other litigants." Southern Pacific Transp. Co. v. Evans, 590 S.W.2d 515, 518 (Tex.Civ.App.--Houston [1st Dist.] 1979, writ ref'd n.r.e.), cert. denied, 449 U.S. 994, 101 S.Ct. 531, 66 L.Ed.2d 291 (1980).

[T]he most severe in the spectrum of sanctions [dismissal or default] provided by the statute or rule must be available to the district court in appropriate cases, not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent. (Emphasis added).

Id. (citing National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976)).

In addressing claims of judicial abuse of discretion in the choice of sanctions for discovery abuse, the reported decisions have uniformly examined the particular facts of each case.

A chronology of events in this case indicates the following:

1. October 4, 1982--Plaintiff's Original Petition filed.

2. October 22, 1982--Defendant's Original Answer filed.

3. November 11, 1982--Plaintiff's interrogatories served on defendant.

4. November 15, 1982--Memo sent from City's attorney to Investigators, Legal Department, requesting information about plaintiff's claim for Answers to Plaintiff's First Series of Interrogatories.

5. December 12, 1982--due date for answers to plaintiff's interrogatories.

6. January 18, 1983--Memo from Sgt. V.H. Schultea to defendant City's attorney, stating that the investigation of plaintiff's claim was completed and returning file.

7. February 3, 1983--Plaintiff's Motion to Compel granted and City's attorney ordered to answer interrogatories by March 3, 1983.

8. February 18, 1983--Letter sent from City's attorney to plaintiff's attorney explaining delay in answering interrogatories.

9. February 18, 1983--Memo to City's investigators from City's attorney requesting update on investigation in order to answer interrogatories.

10. May 5, 1983--Plaintiff's Motion to Strike Pleadings filed.

11. May 10, 1983--Hearing on Plaintiff's Motion to Strike Pleadings set for 8:30 a.m.; motion granted.

12. May 10, 1983, 9:26 a.m.--City's answers to plaintiff's interrogatories filed.

13. May 13, 1983--Order signed striking City's pleadings and granting interlocutory default judgment.

14. June 27, 1983--City's Motion for New Trial overruled by trial court.

15. June 28, 1983--Plaintiff's hearing on damages held.

16. July 14, 1983--Final judgment signed.

A party who seeks discovery under the rules of procedure is not obligated to invoke lesser initial sanctions before requesting the striking of pleadings. Lewis v. Illinois Employers Insurance Company of Wausau, 590 S.W.2d 119, 120 (Tex.1979). Even though the appellee here did seek the less severe remedy of a motion to compel, the appellant failed to respond. It is undisputed that at no time during the six-month period from the November, 1982 service of plaintiff's interrogatories until the May, 1983 order striking the City's answer did the City (1) request a hearing to object to the interrogatories; (2) allege that the interrogatories were not answered because of mistake, lack of information, lack of notice, or even neglect; or, (3) communicate with the court in any manner to explain its apparent indifference to the court's order. Pearson Corp. v. Wichita Falls Boys Club Alumni Ass'n, Inc., 633 S.W.2d 684, 686 (Tex.App.--Fort Worth 1982, no writ); Evans at 519. However, as the record above shows, the City's attorney did send a letter to plaintiff's attorney explaining the delay in answering the interrogatories and stating that an investigation had been initiated to gather information in order to answer the interrogatories. The record also contains the affidavit of the City's attorney, William T. Fiddes, Jr., attached to the City's Motion for New Trial filed August 12, 1983. In this affidavit, Fiddes states that he spoke with the plaintiff's attorney's secretary on Friday, May 6, 1983, informed her that the answers to interrogatories were in the mail, and told her that unless he was informed otherwise there would be no need for a hearing on plaintiff's motion for sanctions. Fiddes likewise states in the affidavit that he did not hear from plaintiff's attorney or the secretary that day, and consequently did not appear at the hearing on sanctions. We also note that appellee's motion to strike was granted on the same day appellant's answers to interrogatories were filed, and that the order striking defendant's pleadings was entered three days later, when the interlocutory default judgment was signed.

In Illinois Employers Insurance Company of Wausau v. Lewis, supra, the Beaumont Court of Appeals held that the trial court abused its discretion in striking the defendant's pleadings when the answers to interrogatories were on file with the court at the time this sanction was imposed. 582 S.W.2d at 245. However, the facts in Lewis which gave rise to a finding of an abuse of discretion are clearly distinguishable from our case.

In Lewis, the answers to plaintiff's interrogatories were due on August 4. Plaintiff filed its motion for sanctions on August 28, and the hearing on this motion was held September 1; however, the defendant filed its answers to interrogatories fifteen minutes before the hearing on sanctions began. The trial court granted the plaintiff's motion for sanctions and struck the defendant's pleadings, despite the fact that it had been brought to the court's attention that the answers were on file. The entire period of time between the date that defendant's answers were initially due and its pleadings were struck encompassed about four weeks.

In our case, by contrast, the time period between answer due date and the striking of the pleadings is a total of six months. In addition, during that six-month period the court's order compelling the answers to the interrogatories was issued and ignored by the City and nothing was done to answer the interrogatories until the...