Clone Component Distributors of America, Inc. v. State

• Decision Date: 21 October 1991
• Docket Number: No. 05-90-01590-CV,05-90-01590-CV
• Citation: 819 S.W.2d 593
• Parties: CLONE COMPONENT DISTRIBUTORS OF AMERICA, INC. and Edmund X. Ramirez, Sr., Appellants, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 593

819 S.W.2d 593

CLONE COMPONENT DISTRIBUTORS OF AMERICA, INC. and Edmund X Ramirez, Sr., Appellants, v. The STATE of Texas, Appellee.

No. 05-90-01590-CV.

Court of Appeals of Texas Dallas.

Oct. 21, 1991.

Dean Carlton, Dallas, for appellant.

Craig Jordan, Juliet C. Romero, Dallas, for appellee.

Before BAKER, LaGARDE, and MALONEY, JJ.

OPINION ON REHEARING

LAGARDE, Justice.

The State's Motion for Rehearing is granted. Our opinion of August 2, 1991, is withdrawn. The following is now our opinion.

Clone Component Distributors of America, Inc. (Clone) and Edmund X. Ramirez, Sr. allege numerous procedural errors by the trial court. The trial court entered a default judgment against Clone and Ramirez and ordered them to pay restitution, attorney's fees, civil penalties, and $50,000 as a discovery sanction. We affirm the trial court's default judgment on liability and civil penalties. We reverse the discovery sanction of $50,000, attorney's fees of $43,500, and $21,677.50 in restitution damages. We remand for a jury trial on damages and attorney's fees.

Ramirez was president of Clone, a business that sold personal computers by mail. The State filed this lawsuit alleging that appellants violated the Texas Deceptive Trade Practices Act. TEX.BUS. & COM.CODE ANN. §§ 17.41-17.63 (Vernon 1987 & Supp.1991). The State alleged that appellants misrepresented expected delivery dates of merchandise, failed to deliver merchandise already paid for, and failed to issue requested refunds for undelivered merchandise.

PARTIAL STATEMENT OF FACTS

In their first point of error, appellants allege that the trial court erred in striking their pleadings. The State attempted to depose both appellants. Clone did not appear for the deposition. Ramirez refused to answer any questions except to give his name, citing his right against self-incrimination. U.S. CONST. amend. V. The State filed a motion for sanctions. The trial court held a hearing on this motion. A statement of facts is not available for this hearing because the trial court denied appellants' request for the presence of a court reporter.

The fifth amendment may be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory. Maness v. Meyers, 419 U.S. 449, 464, 95 S.Ct. 584, 594, 42 L.Ed.2d 574 (1975). The witness is not the exclusive arbiter of his right to exercise the privilege against self-incrimination. Ex parte Butler, 522 S.W.2d 196, 198 (Tex.1975); Smith v. White, 695 S.W.2d 295, 297 (Tex.App.-- A reviewing court must examine the entire record in order to determine whether an error was reasonably calculated to cause and probably did cause an improper judgment. Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex.1990); Gomez Leon v. State, 426 S.W.2d 562, 565 (Tex.1968). The record in this case includes only a partial statement of facts; a court reporter was not present at all of the evidentiary hearings. Appellants failed to obtain a complete statement of facts and have not presented a narrative statement to this Court. See TEX.R.APP.P. 53. A narrative statement is an alternative procedure to the official statement of facts that enables the appellate court to determine whether there is error in the judgment. TEX.R.APP.P. 53(i). Appellants have not demonstrated due diligence in seeking to obtain or provide a statement of facts as required. Stronck v. Stronck, 538 S.W.2d 854, 857 (Tex.Civ.App.--Houston [14th Dist.] 1976, writ ref'd n.r.e.).

                Houston [1st Dist.] 1985, no writ).  The trial judge is entitled to determine whether the refusal to answer appears to be based upon the witness's good faith and is justifiable under all the circumstances.  Butler, 522 S.W.2d at 198.   The trial court is authorized to strike a party's pleadings for abuse of the discovery process.    TEX.R.CIV.P. 215(2)(b)(5) & 215(3).  The standard for reviewing the court's decision on discovery sanctions is whether the trial court clearly abused its discretion.  Hanley v. Hanley, 813 S.W.2d 511, 516 (Tex.App.--Dallas 1991, no writ).  The test is not whether the trial court decided a different way than the appellate court would decide, but whether the trial court's decision was arbitrary or unreasonable, without reference to any guiding rules and principles.  Id
                

Without a complete statement of facts or a narrative statement, we cannot determine whether the trial court erred in striking appellants' pleadings. Stronck, 538 S.W.2d at 857. In its order striking appellants' pleadings, the trial court notes that it reviewed Ramirez's deposition testimony. Appellants did not present the deposition to this Court. We must presume that the evidence supports the action of the trial court. El Chidiac v. Cramer, 756 S.W.2d 325, 326 (Tex.App.--Dallas 1988, writ denied). We overrule appellants' first point of error.

In their second and fourth points of error, appellants allege that the trial court erred in denying them a record on the hearing of the State's motion to compel and in denying Ramirez another opportunity to respond to certain deposition questions after determining that his constitutional rights did not extend to those questions. The trial court noted, in its order striking the pleadings, that Ramirez's counsel offered "to produce Ramirez to respond to specific questions." The trial court declined the offer. Without a statement of facts or, in the alternative, a narrative statement, we are unable to determine which questions Ramirez offered to answer. We cannot determine whether Ramirez retained his fifth amendment claim to some questions. Without some evidence of the discussions during the hearing, we cannot determine error. Appellants waived any error by failing to submit a narrative statement. Stronck, 538 S.W.2d at 857. We overrule these points.

In their third point of error, appellants allege that the trial court erred in refusing to hear evidence concerning the applicability of the fifth amendment to their deposition questions. Maness, 419 U.S. at 460-61, 95 S.Ct. at 592-93; U.S. CONST. amend. V. In its order striking the pleadings, the trial court notes that it considered the arguments of counsel and "the attempts of Defendant Ramirez, through his counsel, to demonstrate his constitutional rights." This statement indicates that the trial court listened to some evidence. We cannot determine whether any evidence was refused.

Two methods are available for preserving error arising from the exclusion of testimony. These include a formal and an informal bill of exceptions. Greenstein, Logan & Co. v. Burgess Mktg., Inc., 744 S.W.2d 170, 178 (Tex.App.--Waco 1987, writ denied). Either bill of exception must show that the evidence was actually offered

and excluded. It must include the substance of what was excluded. Id. Appellants did not make a bill of exception and, thus, waived their objection. We overrule appellants' third point.

MONETARY SANCTION

In their seventh and eighth points of error, appellants contend that the trial court erred in ordering a $50,000 monetary sanction. The court imposed the monetary sanction for abuse of discovery. The trial court may impose appropriate sanctions when it finds that a party is abusing the discovery process. Owens-Corning Fiberglas Corp. v. Caldwell, 807 S.W.2d 413, 415 (Tex.App.--Houston [1st Dist.] 1991, orig. proceeding); TEX.R.CIV.P. 215(3). Appropriate sanctions for abuse of discovery are specifically delineated and limited by rule 215(3). Any monetary sanctions available for abuse of discovery are limited to reasonable expenses, including attorney's fees, caused by the abuse. TEX.R.CIV.P. 215(2)(b)(2) & 215(2)(b)(8). The State offered no evidence on its expenses caused by the abuse. The $50,000 sanction has no support in the record. The trial court has no authority to assess monetary fines. Owens-Corning, 807 S.W.2d at 415. We sustain appellants' seventh and eighth points of error.

JURY TRIAL

In their tenth point of error, appellants allege that the trial court erred in denying them a jury trial. Appellants had demanded a jury trial and paid the fee in a timely manner. TEX.R.CIV.P. 216. A default judgment rendered for failure to permit discovery does not dispense with the necessity for a jury trial on the issue of damages or attorney's fees. Brantley v. Etter, 662 S.W.2d 752, 756 (Tex.App.--San Antonio 1983), writ ref'd n.r.e. per curiam, 677 S.W.2d 503 (Tex.1984). A trial court is not authorized to deny a jury trial on damages or attorney's fees when a demand has been made, the jury fee paid, and an objection made to the withdrawal of the case from the jury docket. Brantley, 662 S.W.2d at 756.

In this case, appellants timely demanded a jury trial and paid the jury fees. TEX.R.CIV.P. 216. They objected to removal of the case from the jury docket. The trial court erred in denying them a jury trial on the issue of damages and attorney's fees. Brantley, 662 S.W.2d at 756. We sustain appellants' tenth point of error.

INADEQUATE BRIEF

In their fifth, ninth, and eleventh points of error, appellants allege that the trial court erred by prohibiting their counsel from objecting to the procedures of the court, ordering them not to participate in the proceedings, and "conducting a continuous course of action depriving them of due process." An appellant's brief must include page references to the record, citations of authorities relied upon, and a discussion of the facts to support the point at issue. Texaco, Inc. v. Pennzoil Co., 729 S.W.2d 768, 810 (Tex.App.--Houston [1st Dist.] 1987, writ ref'd n.r.e.), cert. dismissed, 485 U.S. 994, 108 S.Ct. 1305, 99 L.Ed.2d 686 (1988); TEX.R.APP.P. 74(f). By citing no authority to support their points, appellants waived these points. Id. We overrule the fifth, ninth, and eleventh points.

TELEPHONIC DEPOSITIONS

Appellants allege in their sixth point that the trial court erred in overruling their objections to depositions taken by telephone without the...