Hankins v. Haffa

• Decision Date: 28 June 1971
• Docket Number: No. 8148,8148
• Citation: Hankins v. Haffa, 469 S.W.2d 733 (Tex. Ct. App. 1971)
• Parties: Jewel Moore HANKINS, Appellant, v. Titus HAFFA et al., Appellees.
• Court: Texas Civil Court of Appeals

Page 733

469 S.W.2d 733

Jewel Moore HANKINS, Appellant, v. Titus HAFFA et al., Appellees.

No. 8148.

Court of Civil Appeals of Texas Amarillo.

June 28, 1971.

Rehearing Denied July 26, 1971.

Underwood, Wilson, Sutton, Heare & Berry, R. A. Wilson, Amarillo, John F. Studer, Pampa, for appellant.

Bruce L. Parker, Pampa, Robert L. Templeton & Associates, Inc., Robert L. Templeton, Amarillo, for appellees.

ELLIS, Chief Justice.

This is an appeal from a judgment entered upon an instructed jury verdict in favor of plaintiffs-appellees in a trespass to try title suit involving the ownership of certain oil and gas leasehold interests. The original suit, filed on September 6, 1961, in the District Court of Hutchinson County, Texas, was brought in behalf of Titus Haffa and other appellees, hereinafter sometimes called Haffa interests, to clear title to the oil and gas leasehold estate in three tracts of land in which Jewel Moore Hankins, defendant-appellant claimed an interest. Also, appellees sought the interim appointment of a receiver to hold and manage the property pending the outcome of the suit.

Among other matters, appellees pleaded that appellant's claim of ownership in and to the leasehold estate is void and unenforceable under the statute of frauds (Article 3995, Vernon's Ann. Revised Civil Statutes of Texas). In addition to other pleadings, the appellant filed a cross-action asserting an undivided one-half interest in and to such leasehold estate, seeking to prevail, as against the statute of frauds, on a constructive trust theory. The case went to trial before a jury on June 2, 1970.

During the interim exceeding eight and two-thirds years between the original filing and trial of the case, various amendatory and supplementary pleadings were filed, as well as a series of pre-trial motions and orders with respect to appellant's efforts to establish by Haffa's records, through discovery proceedings, the existence of written memorandum to meet the requirements of the statute of frauds . Also, an order of severance was entered with regard to the plaintiff's claim against the defendant for damages. It is here noted that on June 1, 1970 (prior to the beginning of the trial), the appellant presented in open court her motion seeking discovery relief against the Haffa interests by reason of their failure to comply with the court's orders and alleged blocking of appellant's efforts with regard to obtaining the discovery to which she claims she is entitled. The specific relief sought was the application of sanctions provided under Rules 168 and 215a, Texas Rules of Civil Procedure, including (1) The striking of all pleadings of the Haffa interests seeking affirmative relief against the appellant, (2) dismissal of the suit of the Haffa interests with prejudice, and (3) the striking of all defensive pleadings of the Haffa interests against appellant's cross-action and the rendition of judgment by default in favor of the appellant. The court, after having heard such motion, reserved judgment thereon until the conclusion of the trial. The appellant's announcement of ready on the date of the trial, was, with permission of the court, made subject to the right of the appellant to have such motion acted upon. Also, Mr. Bruce L. Parker, the attorney who had represented the Haffa interests since the inception of the suit, was appointed as guardian ad litem for Titus Haffa, who had been previously adjudicated as mentally incompetent as evidenced by authenticated orders from the Circuit Court of Cook County, Illinois.

The case went to trial before the jury, and, after the completion of the evidence, the court granted appellees' motion for instructed verdict. Also, in open court, the above mentioned motion for discovery relief by way of sanctions against the Haffa interests was overruled. Appellant has perfected this appeal from the judgment based upon the directed verdict and seeks relief only with respect to the appellees collectively identified as the Haffa interests, including Titus Haffa, Mae Haffa and Dora Haffa, Individually and as Administratrix of the Estate of Pauline Haffa, deceased. No relief is being sought against the other parties named as 'plaintiffs' in the judgment.

The appellant has based this appeal upon nine assignments of error . In the first three assignments, appellant contends that the trial court abused its discretion in subjecting defendant to trial without the benefit of discovery and in failing to apply the sanctions requested against the Haffa interests. The appellant contends in her fourth, fifth, sixth and seventh points that the court erred in sustaining appellees' motion for instructed verdict on the grounds that there were fact issues for jury determination and that the failure on the part of each of the named parties comprising the Haffa interests to respond to appellant's discovery efforts was sufficient to subject such appellees to a jury determination of the facts. The eighth and ninth points deal with the court's action in taxing the fee allowed to the guardian ad litem for Titus Haffa as costs against the appellant.

Thus, this appeal involves three basic areas of inquiry: (1) Whether the court abused its discretion in failing to apply the discovery sanctions requested by appellant; (2) the status of the evidence regarding appellant's contention that a constructive trust in her favor has been impressed upon the leasehold interest in question; and (3) the assessment of the guardian ad litem's fee as costs against the appellant.

The discovery rules involved herein are Rules 167, 168, 186a and 215a(c) of the Texas Rules of Civil Procedure as they existed prior to the amendments thereof effective on January 1, 1971. Under Rule 167, upon proper motion and notice, the court may order any party in the case to produce and permit the inspection and copying or photographing of certain documents and tangible things which constitute or contain evidence material to any matter involved in the action. Rule 168 authorizes the serving of written interrogatories to be answered separately and fully under oath. Rule 186a deals with the taking of oral depositions or written interrogatories and the scope thereof with reference to the 'existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the location of persons having knowledge of relevant facts.' In the event of disobedience by a party of any such rules regarding discovery, Rules 168 and 215a provide certain sanctions which the court may impose. The sanctions pertinent to this inquiry are set out in subparagraph (c) of Rule 215a which provides that 'except for good cause shown,' if a party fails to comply with the discovery required, the court may impose sanctions which include: (1) the striking of the pleadings of the party; (2) the dismissal of the party's action; (3) the direction that the party not be permitted to present his grounds for relief or defense; (4) the entry of a judgment by default against the party; and (5) the making of such other order with respect thereto as may be just.

The appellant's first effort toward discovery occurred on January 17, 1963, when interrogatories were directed to appellees seeking detailed information with respect to written records of communications and conferences between appellant and appellees. The Haffa interests replied to these interrogatories on January 5, 1965. On January 12, 1965, the court entered an order finding the answers by Titus Haffa were not sufficient and extending the time for answering the same to March 5, 1965. On March 3, 1965, a further reply was made to the interrogatories, but the information and data desired were not furnished to appellant's satisfaction. On June 18, 1968, appellant moved the court to require Titus Haffa to fix the time and place when he would appear in Texas for deposition and furnish records regarding the matter in controversy. This motion was heard by the court on June 27, 1968, and the court ordered Titus Haffa to appear in Texas for deposition and produce records in advance of the outstanding date set for trial. The trial date was vacated on appellees' motion and there was no appearance or production of records. On December 17, 1968, appellant gave notice of the taking of the deposition of Titus Haffa in Pampa, Texas, and also for the production of certain records on January 2, 1969. Again, there was no appearance or production of records. On May 25, 1970, the appellant filed the motion for discovery relief seeking the imposition of the sanctions set out in the motion hereinabove described. This motion was presented in open court on June 1, 1970, and the appellees asserted that 'good cause' existed for the non-appearance of Titus Haffa and his failure to produce records by reason of his physical and mental problems. The court reserved judgment on the motion until the conclusion of the evidence in the trial.

At the beginning of the trial on June 2, 1970, the appellees introduced into evidence two authenticated copies: (1) Order of the Circuit Court of Cook County, Illinois, dated January 20, 1970, placing Titus Haffa in the care of his wife for treatment by a doctor, and (2) Order of the Circuit Court of Cook County, Illinois adjudging Titus Haffa to be an incompetent and designating his wife as conservator of his estate. During the trial the appellees presented the testimony of Mr. Robert M. Woodward, an attorney from Chicago, who had never been Mr. Haffa's attorney but was attorney for companies owned or controlled by Mr. Haffa. Mr. Woodward's testimony was to the effect that he had known Titus Haffa for approximately forty years and that he had observed a difference in the mental condition of Mr. Haffa since the latter part of 1966. Also, he testified that Titus Haffa had been in and out of various hospitals since the latter part of 1966, and that since such time he had deteriorated mentally...