H.E.B., Inc. v. Morrow

• Decision Date: 12 December 1985
• Docket Number: No. 13-85-144-CV,13-85-144-CV
• Citation: 704 S.W.2d 93
• Parties: H.E.B., INC., Appellant, v. Sarah Marie MORROW, Appellee.
• Court: Texas Court of Appeals

Page 93

704 S.W.2d 93

H.E.B., INC., Appellant, v. Sarah Marie MORROW, Appellee.

No. 13-85-144-CV.

Court of Appeals of Texas Corpus Christi.

Dec. 12, 1985.

On Rehearing Jan. 16, 1986.

Second Rehearing Denied Feb. 13, 1986.

On Rehearing Jan. 16, 1986.

William A. Abernethy, Meredith & Donnell, Corpus Christi, for appellant.

James H. Bjorum, Cox, Dodson & Bjorum, Corpus Christi, for appellee.

Before UTTER, SEERDEN and BENAVIDES, JJ.

OPINION

UTTER, Justice.

This is an appeal from a jury verdict in a slip and fall case. Appellee, Sarah Marie Morrow, brought suit against H.E.B., Inc. (H.E.B.) alleging that she slipped and fell at an H.E.B. store due to the negligence of H.E.B. in maintaining its premises. Appellee also alleged that H.E.B. was negligent in its treatment of her after her fall. The jury found that H.E.B. was not negligent in maintaining its premises. However, the jury found that H.E.B.'s conduct toward appellee after her fall was negligent and awarded $4,000.00 as actual damages and $13,000.00 in exemplary damages. We reverse and remand for a new trial.

In points of error one through five, H.E.B. contends that the trial court erred and abused its discretion in excluding the entire testimony of its witness Ken Murphy, the store manager. The trial court based its decision to exclude Murphy's testimony on:

(1) H.E.B.'s evasive or incomplete answer to Interrogatories Numbers 1 and 12, and

(2) H.E.B.'s failure to supplement its answer to Interrogatory Number 12.

Both interrogatories were contained in a set of interrogatories propounded by appellee to H.E.B. The interrogatories and H.E.B.'s answers thereto are as follows:

1. Please state the name, address, title on date of occurrence, employer, and information believed to be in possession of each person or organization with information relevant to this occurrence.

Answer: We would assume the plaintiff; H.E.B.'s employees, all doctors seen by Mrs. Morrow before and after this occurrence; we are unaware of any other witnesses.

* * *

* * *

12. At the time that plaintiff was first observed by an agent, servant, representative or employee of defendant following this occurrence, please indicate: ... (e) the names and addresses of the employees to first come to her aid or assistance.

Answer: Mr. Ken Murphy

Missouri

INCOMPLETE OR EVASIVE ANSWER

There is no question that appellant's answer to Interrogatory No. 1 was both evasive and incomplete. It supplied none of the requested information or even attempted to do so.

In so far as Interrogatory No. 12 was concerned, appellant's attorney stated on the record prior to the Bill of Exceptions that at the time the interrogatories were answered the appellant did not have an address for Murphy in Missouri. It could and should have included such information in its answer.

The applicable portion of TEX.R.CIV.P. Rule 215, Abuse of Discovery; Sanctions, provides in part as follows:

the discovering party may move for an order compelling a designation, an appearance, an answer or answers, or inspection or production in accordance with the request, or apply to the court in which the action is pending for the imposition of any sanction authorized by paragraph 2b herein without the necessity of first having obtained a court order compelling such discovery.

One sanction authorized by paragraph 2b of Rule 215 is:

(4) an order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibiting him from introducing designated matters in evidence;

It is apparent from the record that this sanction was imposed by the trial judge in this case in preventing appellant from introducing the testimony of Murphy.

A reading of Rule 2151(b) demonstrates that it provides two options for the party whose request for discovery is not met:

(1) the discovering party may move for an order compelling a designation, an appearance, an answer or answers, or inspection or production in accordance with the request;

(2) or apply to the court in which the action is pending for the imposition of any sanction authorized by paragraph 2b herein without the necessity of first having obtained a court order compelling such discovery.

The record reflects that appellee did not move for any order to compel compliance with respect to either Interrogatory 1 or 12. Nor did appellee apply to the court for imposition of any sanction authorized by paragraph 2b. Furthermore, it is apparent that appellee knew the names of the H.E.B. employees who had "relevant information," as is shown by the following interrogatory posed by H.E.B. and appellee's answer thereto:

4. Please state the name and last known address of any person having relevant information or knowledge concerning any matters involved in this lawsuit.

Answer:

(1) Sarah Morrow, 1426 Sulane Apt. B, Corpus Christi, Texas 78415;

(2) Mr. and Mrs. James B. Harris (my son and daughter-in-law) 442 Oakdale, Corpus Christi, Texas 784182 [sic];

(3) Mr. Ariel Cantu, 4837 Kosarek, Corpus Christi, Texas; (H.E.B. employee)

(4) Mr. Ken Murphy, last address unknown to Plaintiff. [emphasis added]

Rule 215(2)(b)(4) does authorize an order "prohibiting [the disobedient party] from introducing designated matters in evidence" for failure to answer an interrogatory. However, the rule plainly states that such a sanction may be imposed only "after notice and hearing." We interpret this to require notice and hearing prior to trial. American Central Insurance Co. v. Texhoma Stores, Inc., 401 S.W.2d 593 (Tex.1966); Vega v. Royal Crown Bottling Co., 526 S.W.2d 729 (Tex.Civ.App.--Corpus Christi 1975, no writ); Employers Mutual Liability Insurance Co. of Wisconsin v. Butler, 511 S.W.2d 323 (Tex.Civ.App.--Texarkana 1974, writ ref'd n.r.e.). This is especially true in this case where the now complained of answers to interrogatories were filed one year and four months prior to trial. Since no motion for an order to compel a more complete answer or application for sanctions was made by appellee under the provisions of Rule 2152b, H.E.B.'s evasive or incomplete answer to Interrogatories Number 1 and 12 could not, as a matter of law, form the basis for the trial court's exclusion of Murphy's testimony.

FAILURE TO SUPPLEMENT

Under TEX.R.CIV.P. 166b(5), a party is under a duty to supplement answers to interrogatories when he receives information which renders the response, although correct and complete when made, no longer true and complete and the circumstances are such that his failure to amend the answer would be misleading. The trial court correctly held that under Rule 166b(5) H.E.B. had a duty to supplement its answer to Interrogatory Number 12 and inform appellee's counsel that Murphy was now located in San Antonio. ¹

TEX.R.CIV.P. 215(5) provides that:

A party who fails to supplement seasonably his response to a request for discovery in accordance with paragraph 5 of Rule 166b shall not be entitled to present evidence which the party was under a duty to provide in a supplemental response or to offer the testimony of an expert witness or of any other person having knowledge of discoverable matter when the information required by Rule 166b concerning the witness has not been disclosed, unless the trial court finds that good cause sufficient to require admission exists.

The imposition of an appropriate sanction for failure to supplement interrogatories in compliance with Rule 166b falls within the broad discretion of the trial court. Smithson v. Cessna Aircraft Co., 665 S.W.2d 439 (Tex.1984). On appeal, the sanctions imposed by the trial court can only be set aside if it is shown that the trial court clearly abused its discretion. Smithson v. Cessna Aircraft Co., 665 S.W.2d at 442; Lindley v. Flores, 672 S.W.2d 612 (Tex.App.--Corpus Christi 1984, no writ); Allied Finance v. Garza, 626 S.W.2d 120 (Tex.App.--Corpus Christi 1981, writ ref'd. n.r.e.). To establish a clear abuse of discretion, appellant "must show that the trial's court action was arbitrary or unreasonable in light of all the circumstances of the particular case." Smithson v. Cessna Aircraft Co., 665 S.W.2d at 443. Once error has been established, appellant must also show that such error was calculated to cause and probably did cause the rendition of an improper judgment. National Surety Corp. v. Rushing, 628 S.W.2d 90 (Tex.App --Beaumont 1981, no writ); TEX.R.CIV.P. 434.

Under Rule 215(5) failure to supplement a party's response to discovery concerning a witness can result in the loss of the right to offer the witness's testimony. This sanction is mandatory unless "the trial court ... affirmatively find[s] the existence of good cause sufficient to require admission." Kilgarlin and Jackson, Sanctions for Discovery Abuse Under New Rule 215, 15 St. Mary's L.J. 767, 819 (1984). The burden should be on the party seeking the admission of the testimony to show good cause sufficient to require the admission of that testimony in spite of his failure to comply with the discovery rules. Kilgarlin, What To Do With the Unidentified Expert?, 48 Tex.B.J. 1192 (Nov.1985). "Further, the proponent must convince the trial court that the justice of the case requires or compels admission." Kilgarlin and Jackson, Sanctions for Discovery Abuse Under New Rule 215, 15 St. Mary's L.J. at 819. By excluding the testimony in the case at bar, the trial court impliedly found that good cause did not exist to require its admission.

At the time that H.E.B. offered Murphy's testimony, appellee's counsel argued their motion to exclude the testimony on the basis of surprise, and on appeal argues that H.E.B. "tried to ambush Mrs. Morrow and her counsel" by offering Murphy's testimony. However, the evidence clearly shows this contention to be unfounded.

As early as June 30, 1983, one year and four months prior to trial, appellee was informed, by H.E.B.'s answers to appellee's interrogatories, of the existence of Ken Murphy. The relevant...