Rainwater v. Haddox

• Decision Date: 22 November 1976
• Docket Number: No. 8734,8734
• Citation: 544 S.W.2d 729
• Parties: Phyllis RAINWATER, Appellant, v. Deborah Ann HADDOX, Appellee.
• Court: Texas Court of Appeals

Page 729

544 S.W.2d 729

Phyllis RAINWATER, Appellant, v. Deborah Ann HADDOX, Appellee.

No. 8734.

Court of Civil Appeals of Texas Amarillo.

Nov. 22, 1976.

Thompson, Coe, Cousins & Irons, Larry L. Gollaher, Dallas, for appellant.

Blankenship & Potts, John A. Stewart, Dallas, for appellee.

REYNOLDS, Justice.

Upon the defendant's failure to comply with its order to answer interrogatories in this suit for personal injuries, the trial court imposed sanctions and, hearing evidence of damages, rendered its monetary judgment for plaintiff. Among the sanctions imposed over the objections of defendant's counsel were the removal of the cause from the jury docket and the denial to counsel of the right to participate in the hearing on damages. The determinative question is whether these sanctions were, and we hold that they were not, authorized or just. Reversed and remanded.

Deborah Ann Haddox brought this suit to recover damages from Phyllis Rainwater for injuries Haddox sustained in an automobile collision with Rainwater. Rainwater timely answered. A jury fee was paid and the cause was placed on the jury docket.

More than a year after Rainwater answered, Haddox propounded to Rainwater's attorneys requests that Rainwater admit certain facts and answer certain interrogatories. After five months had elapsed without a response to the requests, Haddox applied for an order to compel answers to the interrogatories. The court, after notice and a hearing, ordered Rainwater to answer, allowing her approximately two and one-half months to comply. There was no compliance and, some two months following the ordered compliance date, Haddox moved the court to impose sanctions. Within three weeks thereafter, Rainwater's attorneys asked leave to the court to withdraw as counsel because, despite their verified diligent efforts, they had been for almost a year and were then unable to locate Rainwater to secure her cooperation in the defense of the suit.

After notice of and a hearing on the motions, the court denied the written motion by Rainwater's counsel to withdraw and his oral motion for continuance made at the hearing, and imposed sanctions on Rainwater. The sanctions invoked were: Rainwater's answer was stricken, a jury trial was denied, Haddox was granted judgment subject to proving her unliquidated damages before the court, and Rainwater's counsel was denied any participation in the inquiry into the amount of Haddox's unliquidated damages. To each of these sanctions, Rainwater's counsel objected.

On the day previously set for the jury trial, the court heard evidence of Haddox's damages and denied to Rainwater's counsel, over his objections, the right to make objections and to cross-examine. The court rendered its judgment that Haddox recover from Rainwater the sum of $9,000, composed of $98 awarded for lost wages and $8,902 awarded for past and future pain and suffering, together with interest thereon and all costs. From this judgment an appeal has been perfected with seven points of error.

At the outset, we note that there was no error in the denial of the oral motion for a continuance. For a continuance, Rules 251 and 252* require an application accompanied by affidavit setting forth sufficient cause. Where an application for continuance fails to conform to the rules, the denial of a continuance comes within the sound discretion of the court and it will be presumed, absent a showing of abuse of discretion, that the court properly exercised its discretion. D$ $ F$ $ v. State, 525 S.W.2d 933, 941 (Tex.Civ.App.--Houston (1st Dist.) 1975, no writ). The court did not abuse its discretion in denying the oral motion for continuance when it developed there was no reasonable expectation of locating Rainwater. The sixth point of error is overruled.

Unchallenged is the validity of the court's order directing Rainwater to answer the interrogatories, and it is conceded that a court may impose sanctions for the refusal to comply with its valid order. The question on this appeal, however, is whether the trial court was authorized to impose, or justified in imposing, the sanctions it did.

When a party refuses to answer any question after being directed to do so by the proper court, the court is authorized by Rule 215a to consider the refusal as a contempt, or to make such orders as are just, including those permitted by Rule 170, the rule establishing the consequences of a refusal to make discovery. For the refusal to obey the court's order, Rule 170, in addition to authorizing the recovery of incurred expenses not material here, permits (a) an order that the matters regarding the character or description of the thing, or the contents of the paper, or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(b) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing in evidence designated documents or things or items of testimony;

(c) an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.

Notwithstanding, a litigant's basic rights are not...