Pena v. Williams
| Decision Date | 26 January 1977 |
| Docket Number | No. 15686,15686 |
| Citation | 547 S.W.2d 671 |
| Parties | Nick PENA, Appellant, v. Oliver B. WILLIAMS et ux., Appellees. |
| Court | Texas Court of Appeals |
Jose F. Olivares, San Antonio, for appellant.
Jack B. Sims, Sims & Sims, San Antonio, for appellees.
Appellees brought this suit to cancel a written lease agreement executed on October 10, 1972, whereby appellees leased to appellant, Nick Pena, and Gilbert Benavides a 105.2-acre tract of land in Bexar County for a primary term of five years. Judgment was entered on a jury verdict terminating the lease and awarding appellees judgment against Pena and Benavides jointly for unpaid rents of $1,700.00 plus the sum of $99.56 for insurance premiums paid by lessors on behalf of lessees. Only Pena has perfected an appeal.
Appellant urges six points of error; however, most are multifarious and complain of several matters. Under his first point, appellant asserts that the judgment is fundamentally erroneous for several reasons. He states at the outset that the judgment does not dispose of all parties in that Ted Moczygemba, who was joined as a party defendant in appellees' original petition, was not disposed of by the final judgment. This was not necessary since Moczygemba was dropped from the suit by appellees' amended petition and this had the effect of dismissing him from the suit. Ridley v. McCallum, 139 Tex. 540, 163 S.W.2d 833 (1942); Valdez v. Gill, 537 S.W.2d 477 (Tex.Civ.App. San Antonio 1976, writ ref'd n. r. e.). The judgment properly recites that Benavides appeared by his attorney of record in that an answer was filed on behalf of Benavides and Pena by Jose Olivares, Esq., and he vigorously protected both their interests. In any event, Benavides has not appealed. The uncontradicted evidence established the amount of rental owned by lessors and supports the finding by the trial court. The other matters complained of by appellant under his first point were not urged in appellant's amended motion for new trial and were thereby waived. Rule 374. 1
Appellant asserts by his second point of error that the trial court abused its discretion in striking appellant's answer and cross-action because of appellant's failure to respond to interrogatories propounded by appellees. When a party refuses to answer any question after being directed to do so, the trial court is authorized by Rule 215a to consider the refusal as a contempt, or to make such orders as are just, including those penalties permitted by Rule 170. Rule 170(c) permits an order striking pleadings or parts thereof.
We recognize that this is a harsh penalty and should be sparingly used. Here it was used to enable the case to proceed to timely trial. The interrogatories filed by appellees sought information material to the case and appellant was given reasonable opportunity to produce same. Two separate hearings were held on appellees' motion to compel appellant to answer and appellant was given an opportunity after each hearing to complete his answers to the interrogatories. The answer and cross-action were not ordered stricken until shortly before the case was set for trial before a jury. Although all pleadings of appellant were ordered stricken, the appellant was permitted to appeal, cross-examine the witness of appellees, and call witnesses in his own behalf. The trial court did not abuse its discretion in striking the pleadings of appellant upon his refusal to answer the interrogatories. Rainwater v. Haddox, 544 S.W.2d 729 (); Ramsay v. Santa Rosa Medical Center, 498 S.W.2d 741 (Tex.Civ.App. San Antonio 1973), cert. denied, 417 U.S. 938, 94 S.Ct. 3062, 41 L.Ed.2d 661 (1974); Thomas v. Thomas, 446 S.W.2d 590 (Tex.Civ.App. Eastland 1969, writ ref'd n. r. e.).
Appellant urges by his third point that the trial court erred in entering judgment on the jury findings that the appellant had committed material and substantial breaches of the lease because a trial judge had stated to the attorneys that as a matter of law the breaches were not material and substantial. A careful examination of the record establishes that the trial judge did not render...
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...striking of the pleadings has been upheld, the fact situations are uniformly far more egregious than in the case at bar. In Pena v. Williams, 547 S.W.2d 671 (Tex.Civ.App.1977, no writ), appellees brought suit to cancel a written lease agreement. Appellant failed to answer interrogatories fi......
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