Tate v. Commodore County Mut. Ins. Co.

• Decision Date: 01 March 1989
• Docket Number: No. 05-88-00643-CV,05-88-00643-CV
• Citation: 767 S.W.2d 219
• Parties: Ira TATE and Lucille Tate, Appellants, v. COMMODORE COUNTY MUTUAL INSURANCE COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 219

767 S.W.2d 219

Ira TATE and Lucille Tate, Appellants, v. COMMODORE COUNTY MUTUAL INSURANCE COMPANY, Appellee.

No. 05-88-00643-CV.

Court of Appeals of Texas Dallas.

March 1, 1989.

Rehearing Denied April 7, 1989.

Gary L. Johnson, Dallas, for appellants.

Elizabeth L. Phifer, Dallas, for appellee.

Before WHITHAM, BAKER and THOMAS, JJ.

WHITHAM, Justice.

The trial court imposed abuse of discovery sanctions upon the appellant-plaintiffs, Ira Tate and Lucille Tate, in the form of striking the Tates' pleadings and thereafter entering an order of dismissal with prejudice in favor of the appellee-defendant, Commodore County Mutual Insurance Company. The dispute centers on the trial court's order requiring the Tates to produce their sole interrogatory-designated expert witness for deposition. The Tates insist that the nonparty witness was not an agent or employee subject to their control. Under the facts of the present case, we conclude that the trial court did not abuse its discretion in ordering the witness produced, in imposing sanctions for failure to produce, and in dismissing the Tates' cause with prejudice. Further, we conclude that the trial court's actions did not deprive the Tates of due process. Accordingly, we affirm.

At oral argument, both parties agreed that the only issue for trial on the merits was the fair market value of the Tates' stolen truck under a policy of insurance covering the truck and issued by the insurance company. On February 6, 1987, the Tates filed suit against the insurance company alleging breach of an insurance contract and violations of the Texas Insurance Code. The insurance company answered on March 3, 1987, and discovery proceeded. On March 26, 1987, the insurance company forwarded to the Tates a request for production, inspection and copying of documents and other things, and interrogatories. Though the production request was timely answered by the Tates, the interrogatories were not. The Tates filed no objections to the interrogatories. On July 15, 1987, the insurance company filed a motion for sanctions to obtain answers to the interrogatories. No hearing was held on the motion as the Tates complied with the discovery request on the date of the hearing, August 7, 1987. On September 9, 1987, the insurance company served a second set of interrogatories on the Tates. The Tates failed to timely answer these interrogatories and filed no objections to these interrogatories. On November 30, 1987, the insurance company filed a motion to compel answers to its second set of interrogatories. No hearing was held on the motion as the Tates complied with the discovery request prior to the January 15, 1988 hearing. In response to the insurance company's first set of interrogatories, the Tates named Sunday Sides as an expert witness regarding the fair market value of the stolen truck. On January 4, 1988, the insurance company noticed Sides for a deposition on January 11, 1988. On January 11, 1988, Sides's deposition was reset by agreement to February 26, 1988. On February 26, 1988, Sides failed to appear for his deposition. Appellants' attorney advised appellee's attorney that the fault lay with him as he did "not have an opportunity to get a hold of Mr. Sides." On March 8, 1988, the insurance company filed its motion for sanctions and requested that the trial court strike the Tates' pleading, or in the alternative, deny the Tates the right to call at time of trial any expert regarding the fair market value of the truck. The trial court heard the motion on April 15, 1988. As of that date, the Tates had filed no response to the motion for sanctions. However, the Tates' counsel was present at the hearing. At the April 15, 1988 hearing, the trial court ordered the Tates to produce Sides for a deposition prior to the date of the trial setting on April 26, 1988, or risk the sanctions requested in the insurance company's March 8, 1988 motion. (The April 15, 1988 order appears in our record as a docket sheet entry.) On April 22, 1988, the insurance company filed its amended motion for sanctions as Sides failed to appear for a deposition noticed for April 18, 1988. On April 26, 1988, both parties appeared before the trial court for hearing on the insurance company's amended motion for sanctions. The trial court granted sanctions in the form of striking the Tates' pleadings due to the Tates' failure to comply with the trial court's April 15, 1988 order to produce Sides for deposition. Subsequently, the trial court entered an order of dismissal with prejudice on May 10, 1988.

At the outset, we face a technical matter that we must address before reaching the real dispute between the parties. We address this technical matter out of an abundance of precaution in light of a sentence found in the Tates' brief. We quote that sentence shortly. On our record, the trial court's April 15, 1988 order was not reduced to writing by the trial court and entered of record. Indeed, the Tates' brief tells us that "[n]o order [of April 15, 1988] was prepared or signed pursuant to the trial court's apparent ruling." In general, orders of the trial court to be effectual must be entered of record. Manoogian v. Lake Forest Corp., 652 S.W.2d 816, 819 (Tex.App.--Austin 1983, writ ref'd n.r.e.). Moreover, the docket sheet cannot stand as an order or substitute for such record. Harris County Welfare Unit v. Caloudas, 590 S.W.2d 596, 598 (Tex.Civ.App.--Houston [1st Dist.] 1979, no writ). Indeed, a court's docket notation dated 7-27-72 which recites: "Bill of Review granted and new trial granted as to property rights only" has no legal effect, because it is undisputed that said docket notation was never made a part of the court's minutes, and no formal order was ever entered by the trial court pursuant thereto. Any order or judgment to be effective must be entered of record. Kocman v. Kocman, 581 S.W.2d 516, 518 (Tex.Civ.App.--Waco 1979, no writ). Nevertheless, we conclude that in the present case we need not hold the trial court's April 15, 1988 order to be ineffective because not entered of record. Furthermore, we conclude that we need not hold that the docket sheet cannot stand as an order or substitute for such record. We reach these conclusions because whether the April 15, 1988 order was entered of record is a nonissue in the present case. We treat the matter as a nonissue for two reasons. First, the Tates do not complain that the April 15, 1988 docket notation was never a part of the trial court's minutes and do not complain that no formal written order was ever entered by the trial court of record. All that the Tates say about the matter is the one sentence quoted above from their brief "[n]o order [of April 15, 1988] was prepared or signed pursuant to the trial court's apparent ruling." Nowhere do the Tates argue that want of an order of record denies the trial court the right to impose the sanctions in question. Second, at oral argument, the Tates conceded that what the trial court pronounced on April 15, 1988, "was an order." Consequently, we conclude that the fact that the April 15, 1988 order was not reduced to writing by the trial court and entered of record does not destroy the effectiveness of the order. It follows, therefore, that the want of an order of record does not deny the trial court the right to impose the sanctions in question. Thus, we return to matters in controversy.

All parties agree that the issue centers on the trial court's April 15, 1988 order that the Tates produce their interrogatory-designated expert witness for a deposition. In their first point of error, the Tates contend that the trial court abused its discretion in ordering them to produce a nonparty witness for deposition who was not an agent or employee subject to their control. In their second point of error, the Tates contend that the trial court abused its discretion in granting the insurance company's motion for sanctions and entering an order dismissing their cause of action with prejudice. The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action. Rather, it is a question of whether the court acted without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985) (nonparty defendant-employee fact witnesses were noticed for depositions but failed to appear.) (Held that trial court had authority to strike answer pursuant to then Rule 215a--now incorporated into Rule 215). Another way of stating the test is whether the act was arbitrary or unreasonable. Downer, 701 S.W.2d at 242. The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Downer, 701 S.W.2d at 242. To determine the trial judge's guiding rules and principles in imposing sanctions for discovery abuse, we must look to the Texas Rules of Civil Procedure as promulgated and amended by the Supreme Court as well as the decisions of appellate courts of this State and of the United States. Downer, 701 S.W.2d at 242. The Texas Rules of Civil Procedure pertaining to discovery and sanctions for noncompliance have been amended several times, culminating in Rule 215a as it existed at the time Downer came to trial, and now embodied in Rule 215. The use of sanctions by trial courts to prevent discovery abuse has developed steadily over the past several years. These changes reflect the continuing pattern both to broaden the discovery process and to encourage sanctions for failure to comply. Downer, 701 S.W.2d at 242. Indeed, use of sanctions are approved not only to assure compliance with the discovery process but also to deter those who might be tempted to abuse discovery in the absence of a deterrent. See Downer, 701 S.W.2d at 242. Furthermore, ...