Ebeling v. Gawlik, 15998

• Decision Date: 09 November 1972
• Docket Number: No. 15998,15998
• Citation: Ebeling v. Gawlik, 487 S.W.2d 187 (Tex. Ct. App. 1972)
• Parties: Gerold EBELING, Appellant, v. James GAWLIK, Appellee. (1st Dist.)
• Court: Texas Civil Court of Appeals

Page 187

487 S.W.2d 187

Gerold EBELING, Appellant, v. James GAWLIK, Appellee.

No. 15998.

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

Nov. 9, 1972.

Vernon L. Hankins, Houston, for appellant.

David Hittner, Houston, Glassman & Hittner, Houston, of counsel, for appellee.

PEDEN, Justice.

Plaintiff appeals from a trial court judgment which struck his pleadings and dismissed his cause of action. The judgment recited that the plaintiff had failed to comply with a previous order of the court to make full and complete answers to interrogatories filed under Rule 168, Texas Rules of Civil Procedure.

The record before us consists of a transcript only. The appellant complains that the trial court erred 1) in finding that the appellant failed to comply with the order of the court and 2) in ordering the plaintiff's pleadings striken and dismissing this cause.

The plaintiff sued the defendant for labor done, alleging that pursuant to an agreement between the parties he had performed services as a carpenter for the defendant, for which he should have been paid $8,070 but had been paid only $5,332.50, leaving a balance due of $2,737.50. The original petition did not supply an itemized account of the work done.

On April 10, 1972 the defendant filed written interrogatories under Rule 168, and the plaintiff answered them on April 24, 1972. The defendant then moved to compel the plaintiff to 'fully answer the interrogatories,' praying that if he failed to do so 'his pleadings be stricken and his case dismissed for the wrongful and arbitrary refusal' to comply.

On May 11, 1972 the trial judge entered an order reciting that counsel for the parties had appeared in court for the hearing on the motion and directing the plaintiff to make full answers to the interrogatories, specifically numbers one and seven, by May 17, 1972 or his pleadings would be stricken and the cause dismissed. Interrogatory number one asked for plaintiff's home and business addresses and telephone numbers. Interrogatory number seven asked that the claim be itemized, giving dates work was performed plus a detailed description of work done.

On the specified date the plaintiff filed both a supplement to his answers to the interrogatories and a first amended original petition, both of which contained 'Exhibit B', an itemized list of his labor hours. His supplemental answer to the first question was complete and to the point. His supplemental answer to the seventh question was a detailed, typewritten exhibit some six pages long giving the number of hours he worked on each day from May 4, 1970 through April 14, 1971 and describing the work one each month during that period. Appellee does not complain here that the contents of either answer were inadequate.

The only manner in which the defendant-appellee contends that the plaintiff's supplemental answers were deficient is that in verifying them the plaintiff swore only that they were true and correct to the best of his knowledge instead of...