Firestone Photographs, Inc. v. Lamaster

• Decision Date: 06 June 1978
• Docket Number: No. 8550,8550
• Citation: 567 S.W.2d 273
• Parties: FIRESTONE PHOTOGRAPHS, INC., Appellant, v. Cyrus T. LAMASTER, Appellee.
• Court: Texas Court of Appeals

Page 273

567 S.W.2d 273

FIRESTONE PHOTOGRAPHS, INC., Appellant, v. Cyrus T. LAMASTER, Appellee.

No. 8550.

Court of Civil Appeals of Texas,Texarkana.

June 6, 1978.

Daniel L. Firestone, Firestone Photographs, Inc., pro se.

Robert G. Boydston, Roberts, Walls & Boydston, Dallas, for appellee.

CORNELIUS, Chief Justice.

The principal issue to be determined on this appeal is the propriety of the district court's award to the plaintiff of Sixty-five Thousand Two Hundred and Forty-five Dollars ($65,245.00) in the form of sanctions imposed upon the defendant for refusal to comply with discovery orders.

Plaintiff Lamaster filed suit against Defendant Firestone Photographs, Inc., asserting a cause of action based upon alleged fraudulent representations in connection with a "distributor agreement" they had executed. Plaintiff sought rescission of the agreement, actual damages, punitive damages and attorney's fees. Several disputes arose between the parties concerning defendant's obligation to answer certain interrogatories, and whether defendant's president, Daniel L. Firestone, would be required to appear in Dallas, Texas, for the purpose of giving his deposition. The defendant complained that several of the interrogatories would require answers which would violate the privilege against self-incrimination and would improperly reveal certain trade secrets; that because of the great amount of information sought by some of the interrogatories and the voluminous state of defendant's business records, plaintiff should be required to go to Ohio where the records were located and secure the information by his own inspection pursuant to the provisions of Tex.R.Civ.P. 168; and that Mr. Firestone should be deposed in Ohio, where he resided, rather than in Dallas. Defendant requested that the court enter a protective order granting it relief from the objectionable features of the discovery proceedings. After notice and hearing, the district court entered a modified protective order guarding against the unauthorized dissemination of information concerning defendant's alleged trade secrets, but refused to require plaintiff to go to Ohio and secure the desired information from an inspection of the defendant's records, or to require Mr. Firestone's deposition to be taken in Ohio rather than in Dallas. Despite the court's orders to do so, defendant refused to answer certain of the interrogatories and failed to produce Mr. Firestone for deposition. After several motions for contempt and for sanctions had been filed and hearings held thereon, the district court entered an order granting sanctions, which provided, inter alia, the following:

"IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED by the Court that Defendant, Firestone Photographs, Inc., pay sanctions of Two Hundred Fifty Dollars ($250.00) for failing to appear at the deposition on February 13, 1976, and further that Defendant pay sanctions of Two Hundred Fifty Dollars ($250.00) for failure to submit answers to Plaintiff's interrogatories on February 12, 1976, each such action being contrary to the previous orders of this Court.

"IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that if Defendant fails to appear for the deposition by producing its President, Daniel L. Firestone, with the subpoenaed materials, at the offices of Plaintiff's attorney or in this Court, at Defendant's election upon giving twenty-four (24) hours notice of place and time to Plaintiff's attorney, within twenty (20) days from February 19, 1976, Defendant shall pay additional sanctions of Five Hundred Dollars ($500.00) and for each succeeding twenty-day period that such failure continues, Defendant shall pay additional sanctions of double the sanctions amount of the last preceding twenty-day period. (Thus, in addition to the attorneys fees awarded herein, Defendant has incurred sanctions of $250.00 for failing to appear at the deposition and shall incur another $500.00 sanction amount if the deposition appearance is not made on or before March 10, 1976, and another $1,000.00 if not made on or before March 30, 1976, and shall continue to incur such progressively increasing sanctions until terminated as provided herein.)

"IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that if Defendant fails to answer Plaintiff's written interrogatories that were specifically ordered to be answered by this Court's order compelling answers to written interrogatories by delivering same to the offices of Plaintiff's attorney within twenty days from February 12, 1976, Defendant shall pay additional sanctions of Five Hundred Dollars ($500.00) and for each succeeding twenty-day period that such failure continues Defendant shall pay additional sanctions of double the sanctions amount of the last preceding twenty-day period.

"IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that the foregoing sanctions shall continue and accumulate for the benefit of Plaintiff; provided, however, that the total of such sanction shall not exceed the sum prayed for in Plaintiff's Original Petition and provided that such sanctions shall cease at such time as Defendant assures this Court that it will comply with the orders of this Court at a time certain and reasonable or at such time as waived by Plaintiff."

Defendant's failure to answer the interrogatories or to appear for the deposition continued until, on November 11, 1976, the case was called for trial. At that time plaintiff waived all relief prayed for in his petition and moved for judgment solely in the amount of the sanctions which had accumulated to that time, up to the amount originally sought by his suit. Over defendant's objection, the district court granted plaintiff's motion and entered judgment in his favor for $65,245.00 plus $750.00 attorney's fees. Although Mr. Firestone did not personally appear, defendant's counsel appeared and participated in all the proceedings leading to the judgment, including the various hearings concerning discovery and the motions for sanctions.

Defendant urges here that the district court should have granted its motion for protective order insofar as inspection of defendant's records in Ohio was concerned, and that the judgment is erroneous because there is no statutory authority for sanctions of the type ordered by the court, and further because the imposition of monetary sanctions for plaintiff's benefit in effect constituted a default judgment which improperly included $50,000.00 punitive damages and $5,000.00 attorney's fees when there was no proof of same as is required for a default judgment when damages are unliquidated.

Tex.R.Civ.P. 215a and 168 provide for the imposition of sanctions upon a party or witness for failure to comply with authorized pre-trial discovery orders. Rule 215a, pertaining to depositions and subpoenaes duces tecum, provides in part as...