Petitt v. Laware, No. 01-85-0994-CV

• Court: Court of Appeals of Texas
• Writing for the Court: Before EVANS; WARREN
• Citation: 715 S.W.2d 688
• Decision Date: 05 June 1986
• Docket Number: No. 01-85-0994-CV
• Parties: Vincent PETITT, Appellant, v. Mary LAWARE, Appellee. (1st Dist.)

Page 688

715 S.W.2d 688 Vincent PETITT, Appellant,
v.
Mary LAWARE, Appellee. No. 01-85-0994-CV. Court of Appeals of Texas,
Houston (1st Dist.). June 5, 1986.
Rehearing Denied Aug. 28, 1986.

Page 689

James A. McGuire, James A. McGuire & Associates, Houston, for appellant.

Brian M. Chandler, Arthur M. Glover, Jr., Hirsch, Glover, Robinson & Sheiness, Houston, for appellee.

Before EVANS, C.J., and JACK SMITH and WARREN, JJ.

OPINION

WARREN, Justice.

This is an appeal from an order striking appellant's pleading and entering judgment for appellee. We affirm.

On January 6, 1984, appellant filed suit against appellee, which suit was answered on August 21. Appellant commenced discovery by notifying appellee of his intention to take appellee's deposition on February 21, 1985. Appellee responded by filing a motion to quash and a supplemental motion to quash. On February 25, the court heard appellee's motions and ordered appellee's deposition to be taken on March 4.

Due to problems between the attorneys, the March 4 deposition ended before completion. On April 10, appellant failed to attend his scheduled deposition. Both parties filed motions for sanctions. On April 24, the court denied both motions and ordered future depositions to be taken in the court's jury room or some other place in the Civil Courts Building.

On July 22, appellee received notice of appellant's intention to take her deposition on July 25; appellee filed a motion to quash, contending she did not receive the notice within a reasonable time, and set the motion for hearing on July 25. Appellant received notice of the hearing on July 24, and therefore refused to attend, contending the hearing was conducted outside the time

Page 690

provisions of Tex.R.Civ.P. 21 and the local rules governing the Harris County district courts. The court granted appellee's motion to quash and ordered the depositions of both parties to be taken on August 6.

Appellant refused to attend the August 6 deposition. Appellee filed a motion to strike appellant's pleading, and pursuant to the motion, on August 26, 1985, the court ordered appellant's pleading struck and entered judgment for appellee.

On September 25, appellant filed a motion for new trial. The record contains no signed order overruling the motion, but the court's October 14 docket entry states: "Hearing on [plaintiff's Motion for New Trial]. No appearance by [plaintiff]. Passed. Cannot be reset."

On October 18, appellant filed a motion for recusal of the trial judge, alleging racial bias. The motion was referred to the Second Administrative District on October 29, and after a hearing, it was denied on November 8, 1985.

Appellant presents four points of error. Appellant first contends that the trial court erred in entering its February 25 and April 24, 1985, orders. However, appellant actually argues that the court (1) had an affirmative duty to enforce its February 25 order, and (2) erred in entering its April 24 order, which denied appellant's motion for sanctions.

Appellant contends that he filed a motion for sanctions, presumably based upon appellee's behavior (1) in failing to attend the February 21 deposition, and (2) in abruptly discontinuing the March 4 deposition. However, the transcript before this Court does not contain appellant's motion for sanctions. The burden is on the appellant to see that a sufficient record is presented on appeal, which preserves the error upon which he relies. Otherwise, the allegation of error is waived. Chappell Hills, Inc. v. Boatwright, 702 S.W.2d 687 (Tex.App.--Houston [14th Dist.] 1985, no writ); Irrigation Construction Co. v. Motheral Contractors, Inc., 599 S.W.2d 336 (Tex.Civ.App.--Corpus Christi 1980, no writ). Appellant's first point of error is overruled.

In his second point of error, appellant contends that the court erred in conducting a hearing in derogation of the time limits authorized by Tex.R.Civ.P. 21 and Rule 2 of the local rules governing Harris County district courts.

On July 24, appellee filed a motion to quash appellee's deposition, setting a hearing on the motion for July 25, and hand delivered a copy of the motion to appellant. Appellant refused to attend the hearing, although he did speak with the presiding judge over the phone at the time of the hearing. The court granted appellee's motion and ordered depositions of both parties to be taken on August 6, 1985.

Tex.R.Civ.P. 21 provides in pertinent part:

* * *

An application to the court for an order and notice of any hearing thereon, not presented during a hearing or trial, shall be served upon the adverse party not less than three days before the time specified for the hearing, unless otherwise provided by these rules or shortened by the court.

(Emphasis added.)

Under the wording of the rule, the trial court's action in shortening the three-day provision is discretionary, and the trial court's action will not be disturbed except on a showing of abuse of discretion.

The test for abuse of discretion is not whether, in this Court's opinion, the facts present an appropriate case for the trial court's action. Rather, as articulated in Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-242...