Lueg v. Tewell

• Decision Date: 22 September 1978
• Docket Number: No. 1313,1313
• Citation: 572 S.W.2d 97
• Parties: Carl F. LUEG, Jr., Appellant, v. Howard E. TEWELL, Jr., M. D., Appellee.
• Court: Texas Court of Appeals

Page 97

572 S.W.2d 97

Carl F. LUEG, Jr., Appellant, v. Howard E. TEWELL, Jr., M. D., Appellee.

No. 1313.

Court of Civil Appeals of Texas, Corpus Christi.

Sept. 22, 1978.

Thomas E. Lucas, Lucas & Hudson, Houston, for appellant.

David Kithcart, Orrin W. Johnson, Harlingen, for appellee.

OPINION

YOUNG, Justice.

This suit for alienation of affections, brought by Carl Lueg against Dr. Howard Tewell, was dismissed with prejudice under Rule 170, T.R.C.P., because Mr. Lueg failed to comply with a discovery order. We affirm.

On August 6, 1976, Mr. Lueg, and his wife were divorced. His ex-wife later married Dr. Tewell. Whereupon Mr. Lueg filed this suit on October 20, 1976, for alienation of affections. The petition generally alleged that Dr. Tewell schemed to break up Mr. Lueg's marriage by using his great wealth and masculine wiles to further his purpose.

Dr. Tewell answered with a general denial and gave notice of intention to take an oral deposition of Mr. Lueg which notice included a request to produce nine groups of documents. The requested documents mostly pertained to the operation of two nursing homes, one in McAllen and one in San Benito. These homes were operated and partly owned by Mr. Lueg, who owned a majority interest; the remaining interest was owned by his former wife, Mrs. Tewell. Particularly relevant to this cause was the request to produce check books and check stubs from January 1, 1976 to date for the San Benito home and copies of check vouchers on the McAllen home for the same period.

On December 2, 1976, appellee took appellant's deposition. Appellant did not produce six of the nine requested groups of items because they were at the auditor's office, but apparently promised the appellee that he would produce the other items, including the above mentioned check stubs and vouchers, by December 15, 1976. Appellant Lueg, however, did not produce these requested items as promised and on March 7, 1977, appellee filed both a motion to compel their production and a motion for Mrs. Tewell to intervene as a party defendant.

This first motion requested production of nine groups of items, five of which were items requested in the subpoena duces tecum, mentioned above, and four of which applied to additional aspects of the operation of the two nursing homes. The requested items relevant to this appeal appeared and were numbered as follows: 5) the bank statements, cancelled checks, check stubs, and voucher copies of all checks from January 1, 1976 to date; 6) all records, bank statements, deposit slips, and escrow accounts, pertaining to appellant's acting as attorney ad litem for patients in the two nursing homes and more particularly as to deceased patient Lundquist, and three living patients, namely, Mora, Langham and Linnville; 8) all cancelled checks or other records which reflect a loan to certain officers, including payments made by the business with respect to any vehicle used by the plaintiff. The motion then states that good cause exists to grant the motion because the documents sought would reflect appellant's questionable business practices and how these practices were the actual cause of Mrs. Tewell's alienation from Mr. Lueg. It further states that the information would be beneficial in a shareholder's derivative suit as a counterclaim in the event Mrs. Tewell were allowed to intervene.

On March 15, 1977, appellee Dr. Tewell supplemented his motion to produce documents by requesting appellant's income tax returns, personal financial statements, and copies of all credit card applications and all receipts for food and travel.

Appellant Lueg challenged both of these motions, and at a hearing on March 17, 1977, the court sustained all of the appellee's requests, except that it imposed a limitation that the personal financial statements and credit card applications and receipts received after the August 6, 1976, divorce were not discoverable. The court also denied Mrs. Tewell's motion to intervene and ordered that all nine groups of documents be delivered to defendant on or before April 17, 1977.

On April 15, 1977, appellant forwarded documents to appellee's attorney in an attempt to comply with the court's order. Items five, eight, and nine in defendant's motion were not sent, however, as the appellant's attorney advised appellee that they were available for inspection at the Houston office of the appellant's attorney, in spite of the fact that both appellant and appellee resided in the Rio Grande Valley area.

On July 12, 1977, appellee filed a motion for sanctions for refusal to make discovery under Rule 167 and for contempt. The motion alleged that appellant had failed to produce items five, eight and nine of the first motion and the credit card receipts requested in the supplement and it requested their production. Moreover, it stated that the response to requested item six of the first motion was extremely incomplete and should be supplemented, and it also expounded upon the factual bases for Mrs. Tewell's concern as to the four specifically named accounts.

A hearing was then held on this second motion on May 20, 1977. The court sustained appellee's motion and ordered all requested items produced. The order further provided that the production of documents should take place in the County Courthouse at Brownsville, Texas, on June 3, 1977 at 2:00 P.M.

In furtherance of the order, the parties met on June 3, but because the volume of documents produced could not be copied in one day the parties agreed to recess the discovery until June 9, 10 and 13. On June 9 the discovery resumed in the offices of appellee's attorney in Harlingen, Texas. At that time, the appellee complained to appellant that he had not produced the items ordered. First, as to item five of the first motion, all bank statements, cancelled checks, check stubs and vouchers were not delivered. The record indicates that for every check issued from the McAllen nursing home, there were two carbon copies namely, a pink voucher copy and a white voucher copy. The pink copy was used for auditing and general accounting purposes and the white copy was attached to the invoice or other supporting data which precipitated the issuance of the check. None of the pink or white copies were delivered on the 9th of June and several of the original cancelled checks were not delivered. While appellant was requested to deliver all pink copies and white copies, he chose to bring only selected pink copies, none of which gave the information as to the missing cancelled checks. Appellant's reason for failing to produce all the pink copies was that his attorney had advised him that the appellees only wanted selected pink copies in spite of the fact that appellee's attorney was never present for any of the discovery proceedings on the 9th, 10th, or 13th.

Similarly, appellant apparently told the appellee that he would produce all of the voucher copies during this round of discovery, but, none of the white voucher copies were ever produced. Appellant's reason was again the advice of his attorney and that some of the white copies were at his auditor for year ending. Appellant did admit, though, that he did indeed possess many of the white copies requested but was just not going to produce them on advice of his attorney. In addition, appellant did not deliver the deposit slips to any of the requested bank statements until the 13th of June, at which time he did not give access to the cancelled checks, only the bank statements and deposit slips.

Secondly, as to item six, the records of the escrow accounts were again incomplete. Thirdly, none of the requested credit cards receipts were delivered. All other requested documents were apparently produced. As a result, appellee filed a second motion for sanctions and contempt. This motion was supported by extensive exhibits as to which requested documents had not been produced.

A hearing on this motion was held on July 21, 1977. At this hearing, Mrs. Tewell and Mr. Lueg testified. The essence of Mrs. Tewell's testimony was that the appellant was holding back certain documents and was being totally uncooperative. Appellant denied this and asserted that, for example, the checks were missing due to appellee's mishandling of appellant's financial records during the discovery process in June.

The court granted appellee's motion and ordered that appellant deliver four groups of documents, and deposit $1250.00 with the court for extra expenses by July 26 or his cause would be dismissed with prejudice. The items ordered were: 1) The missing checks; 2) the missing pink and white voucher copies; 3) the complete records as to the escrow accounts of the patients named in item six of the first motion and 4) the credit card information requested in the supplement to the first motion.

Appellant failed to comply with any of the requirements in this order and the court dismissed the cause with prejudice on July 29, 1977. Appellant then filed a motion for rehearing and a motion for new trial. These motions were overruled.

Appellant brings seven points of error. The first six points complain of error in the trial court's granting appellee's first motion for discovery and the supplement thereto. It should be noted, though, that the trial court made two subsequent discovery orders after sustaining appellee's first motion and supplemental motion of which appellant complains, namely, the May 20, 1977, order and the July 21, 1977, order. It was appellant's refusal to obey the last discovery order which precipitated the court's employment of the discovery sanctions.

It is a generally recognized rule that if sanctions are imposed for violating a discovery order, on appeal from the order imposing sanctions the appellate court will consider the propriety of the prior order for discovery. Familias Unidas v. Briscoe, 544 F.2d 182, 191 (5th Cir. 1976), 8 Wright and Miller, Federal Practice and Procedure, Civil § 2289 n. 55 ...